of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the arch-Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
this Question was Sir Will. Dugdale in his Origines Juridiciales who though he Transcribed the same Notion and Arguments from the 〈◊〉 mentioned Glossary yet allows the Commons of England to have been always after some manner represented in Parliament though not by Representatives of their own chusing yet agrees with the Author of the passage in the Glossary that the Commons first began by Râ—bâ—llion in the 49th of Henry the Third Which Opinions being looke upon not only as Novel and Erronâ—ous but dangerous to the Parlamental Rights and Liberties of the People of this Nation were opposed by William Petyt Esq in his Treatise intituled The Rights of the Commons of England assertio which was also seconded by the Author of the Treatise called Jani Anglorum facies Nova but it was not long before both these Books were animadverted upon by Dr. Brady in two several Editions of his Answers to them and these were again vindicated by the Author of Jani Anglorum c. in another Treatise intituled Jus Anglorum ab Antiquo which hath not been yet answered I have been the more particular in giving an account of these Authors because the Controversie having been largely debated in them I have for the saving your trouble of reading so many several Books reduced all the material Arguments and Authorities man use of by both Parties in this weighty Controversie into this Dialogue and the next since so copious an Argument could not be dispatch'd in a less compasâ— And 〈◊〉 have not here given you all the Arguments and Authorities that are there made use of but only the most material and indisputable yet I hope I have used this Liberty with that sincerity and respect to those Learned Authors that none of them shall have any just caâ—â—t to complain of any Partiality And therefore I have as near as I could confined my self to the Words of those Authors as you will find by the Quotations in the Margin But I must own that having had the happiness of a long and familiar acquaintance with Mr. Petyt I have been furnished by him with divers Authorities both Manusâ—â—â—p and Printed not hitherto taken notice of by any on this Subject And had I the like opportunity of being personally known to the Dr I should have desired the same favour of 〈◊〉 for such Replies as he might perhaps make to them Therefore all I can now do in this Case is that if the Dr. or any Friend of his shall think it worth their while to peruse and impartially to consider these Discourses and shall then remain unsatisfied with any of the Authorities or Arguments here made use of if either he or they shall think fiâ— to mâ—â—â— any Observations on them and will communicate their Papers to the Publisher of these Dialogues I do here ingage to take care that they shall be fairly and truly published with Answers to them if they will admit of any in an Appendix at the end of the whole Work when it is finished I have little more to trouble you with than to assure you That all the Authorities here made use of from our English Historians and Records are truly cited without leaving out or concealing any thing that I thought made for or against either Opinion but as for the Records they are either such as having been sufficiently tried have passed for current between the Dr and his Antagonists or else such as I have seen and examined with my own Eyes and considered the purport of them But I hope you will pardon me if I seem too prolix in the beginning of this Disâ—â—â—se in the interpretation of divers Words and Phrases used by the Dr. and his Opponents in a quite different sense from our Ancient Historians Records and Statutes for if the â—â—â—ous use and equivocal meaning of those Expressions be truly stated and laid open according to the several Ages in which those Authors lived or such Laws were made I reckâ—â— this great Dispute as good as half ended All that I shall farther desire of you is carefully and diligently to peruse the Arguments and Authorities and to examine the truth of them your self if you doubt of any thing in them weighing and comparing Historian with Historian and Record with Record and sometimes both together as the Subject-Matter requires and then I kept you will be able to make a right and impartial Iudgment on the 〈◊〉 For as I have 〈◊〉 in my Province fairly to report other mens Arguments and Notions so it is yours to judge of them which I heartily desire may be without any unjust Byass or Partiality to 〈◊〉 Side THE Sixth Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian M. SIR You are welcome and since you were pleased to send me word that you would come and sit with me this Evening I have been looking over all the Saxon Councils collected by Mr. Lambard and Sir H. Spelman and yet I cannot find in them any mention of Knights of Shires or Burgesses for Cities or Burroughs the only persons there mentioned as Members of those Great Councils being Archbishops Bishops Abbots and Great Lords and Iudges often called by the general 〈◊〉 Names of Magnates Principes Proceres Optimates or Primates Regni which were all comprehended under the Saxon Word VVites i. e. 〈◊〉 by whom as Sir H. Spelman shews us in his Glossary 〈◊〉 meant only Senators or Wise-men that is either Noblemen 〈◊〉 Great Lawyers VVite in Somner's Saxon Dictionary being first â—â—endred Optimas a Noble Man and then Sapiens a Wise-man So 〈◊〉 these VVites or Sapientes so often mentioned in our Ancient 〈◊〉 Laws when they are put alone signifie all the Ecclesiastic 〈◊〉 well as Lay-Members of the great Council such as Earls Alâ—â—â—men and Thanes and Judges as Dr. B. more particularly proves in his Glossary 〈◊〉 the end of his first Volume But by Principes and Optimates can only be meant Nobles or Chief Men as the Word Princeps Magnas and Optimas do alâ—â—ys signifie in the Latin Tongue That is to say such of the King 's great Officers Noblemen and Judges of the Kingdom as he pleased to chuse out and 〈◊〉 to his Great Councils either for their great Wisdom or Estates to make 〈◊〉 of their Advice and Assistance for the making of Laws Therefore pray shew me where there are any Commons once mentioned in any of these Councils or any that represented them Here are indeed particularly mentioned Arch-Bishops Bishops Abbots Aldermen Wites Great-men and Chief-men or Noblemen These were all the Orders of men that were then the constituent 〈◊〉 of those Great Councils Wittena-Gemotes And if the Commons as now taken and understood were then Members of them they must be comprehended amongst the Wites or Sapientes the Wise-men But that it cannot probably be so I shall prove 1. That most of the Saxon Laws in their Prefaces are said to be made and ordained by their Kings
why the Commons could not be represented in Parliament before the 49th of Hen. III. and 18th of Edw. I. M. I will proceed to do it and for this end shall reduce my Arguments to these three Heads the first is some Writs found out and produced by the Doctor whereby he proves that the Commons were not Summoned during the Reign of Hen. III. till the 49th secondly the general silence of all Statutes in Hâ—n III. Reign wherein is not one word mentioned of the Commons but rather to the contrary thirdly the critical Time viz. in the 49th of Hen. III. when the Commons were first called during Monsfords Rebellion fourthly their discontinuance from that time till the 18th of Edw. I. there being no mention made of them in all the rest of the Reign of Hen. III. nor yet of Ed. I. till the 18th in which the Doctor shews you a Writ not taken notice of before by which the Commons were Summoned a new to Parliament Lastly from the uncertainty of the manner of the Writs of Summons whether for one Knight or two Knights and sometimes no Citizens and Burgesses at all which sufficiently prove the Novelty of the Institution as also of some Parliamentary Forms relating to the Commons which shew that neither their number nor manner of Election was settled long after the Reign of Edw. I. To begin therefore with the first Head I know the Gentlemen of your opinion make a great Noise about the loss or rather defect of the Writs of Summons and Parliament Rolls of all the Kings till the 23d or 25th of Edw. I. So that we cannot be so well assured what was done in Parliaments of those times as we may be afterwards Yet there are still some Writs of Summons Extant upon the Close Rolls before and in those times by which the Bishops Earls and Barons were Summoned to Parliaments or great Councils And we have all the Close Rolls of King Iohn and Henry III. on the Dorseâ— of which anciently most of the Writs of Summons to the Commons in other King's Reigns are entred few on the Patent Rolls which we have likewise 'T is therefore very strange if the Commons were then represented by Knights Citizens and Burgesses and Summoned to Parliament as at this day that there cannot be found any Summons to them upon these Rolls as well as to the Lords But the Learned Doctor hath for our Satisfaction found out three Writs of Summons to the Lords one in King Iohn's Reign and two other of Hen III. The first is in the Close Roll 6th of King Iohn directed to the Bishop of Salisbury which is needless here to be repeated Verbatim only pray take notice of the material words of this Writ where after the Cause of the Summons particularly expres'd it concludes thus expedit habere vestrum Consilium aliorum Magnatum Terrae nostrae quos ad diem ilium Locum fecimus convocari The second is in the Close Roll of the 26th Hen. III directed to W. Arch-bishop of York wherein he is likewise Summoned ad tractandum Nobiscum una cum caeteris Magnatibus nostris quos similiter fecimus convocaâ—i de arduis Negotiis nostris statum nostrum totius Regni nostri specialiter tangentibus with this note underneath eodem modo Scribitur omnibus Episcopis Abbatibus Comitibus Baronibus The third is of the 38th of the same King directed to Boniface Arch-bishop of Canterbury whereby he is Summoned to be at Westminster within Fifteen days after Hillary next coming before the Queen and Richard Earl of Cornwail about the Affairs of Gascony and this very Council Mat. Paris Anno. Dom. 1254. calls a Parliament to which all the Magnates or great Men of England came together the Day of which Meeting he makes to have been the 6th of the Calends of February being St. Iulian's day and which fell one within Fifteen days after St. Hillary's Day which was that appointed for the Meeting of this Parliament by the aforesaid Writ of Summons and who were the Constituent parts of this Parliament may be be farther made out by a Letter of the Queen and Earl Richard to the King then in Gascony which is recited by Mat. Paris in his Additaments in these words Domino Regi Angliae c. Regina Richardus Comes Cornubiae Salutem Recipimus literas Vestras ad Natale Domini proximae praeteritum quod in Crastino Sancti Hillarii Convocaremus Archiepiscopos Episcopos Abbates Priores Comites Regni Angliae ad ostendendum c. Whereby it appears who were then the Constituent parts of Members of our English Parliaments viz. the Archbishops Bishops c. Earls and Barons of the Kingdom So that there is no such Universal silence concerning the Constituent Parts of our Parliaments as you and those of your Party suppose from the loss of the Parliament Rolls of those times most of which though I confess are lost yet there are enough left to satisfie any reasonable Person that there were then no Commons in Parliament in the sense they are now taken F. You cannot give me a better demonstration of the loss of the Parliament Rolls and Writs of Summons than what you now offer for if we have all the Close Rolls of King Iohn and Henry III. on the Dorses of which you tell me the Writs of Summons use to be entered then certainly those to the Lords were there entered also and if so how comes it to pass that in above Eighty Years time in which there must be above Eighty Parliaments you can shew me but three Writs of Summons and those only to as many Bishops and to no Temporal Lords at all If so be these were Parliaments and not great Councils of the Bishops Lords and Tenants in Capite only as I rather believe they were for you rely too much upon you Doctors credit when you alledge that we have all the Close Rolls of King Iohn and Henry III which is a great mistake for I have had a Friend who has given me a note of what Close Rolls are still Extant in those Reigns and what are lost which you may here see To begin with King Iohn pray observe that all the Close Rolls of the first Five years of his Reigns are gone and so they are in the 9th 10th 11th 12th and 13th for certainly there were some in those as well as in the succeeding years In the next place till the 18th there is but one Roll left of each year but then there are three and after that but one or two in a year to the very end now pray tell me how we can be assured that there was not more then one Roll in every precedent year as well as in the 15th the like I may say for the Reign of Hen. III. which though I grant are more entire then those of King Iohn there being some left us of every year but the 23d yet they are but
that they ever should desire this as a Priviledge and therefore it is onely since the neglect of this good old Law for Wages that so many Burroughs which Mr. Prin here mentions to have had Precepts again sent them of late Years to Elect Members after some Ages Intermission desired to have this Priviledge renewed to them as was done in the Case of those Burroughs he here mentions which yet certainly had been very gross and contrary to all common Right if the House of Commons had not then believed those Burroughs to have a had higher Right by Prescription than the Sheriffs Precepts gave them as for the last Rank viz. those Burroughs created by the Writs or Charters of our Kings I need say but little since this Author here grants such Creations to have been good before the Statute of 5th of Richard the 2d but not since tho I cannot see any Reason for it why he should give the Sheriffs such Power of making new Burroughs after this Statute in the time of Henry 6th as he does in the Case of Gatton and those other Burroughs he there mentions with it and yet deny this King the like Prerogative But yet for all this as I will not say there were none so are there but very few Examples of Charters that conferr upon any City or Burrough a Power to send Members to Parliament who had it not before by Prescription tho I grant that Priviledge may be mention'd in the Charter and so put it in the Power of the Major and Aldermen to Elect for the future when it was the whole Populace or all the Inhabitants of that Town that were to Elect before But to shew you from the very Statutes themselves that Mr. Prin has here cited that the Right of the Cities and Burroughs to appear in Parliament was not anciently looked upon to have had no other Original then the Favour of the Sheriffs Pray read these Clauses of the Statutes he has here quoted the first is that memorable Statute of the 5th of Richard 2d 2d Parl. c. 5. now mentioned and which I have already cited which expresly Enacts That all and singular Persons and Commonalties which from henceforth shall for time to come have Summons of Parliament shall come from henceforth as before to Parliaments in the manner as they be bound to do and hath been accustomed within the Realm of England of old time and whatever Person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Earl Baron Banneret Knight of Shire Citizen of City Burgess of Burgh or other singular Person or Commonalty do absent himself and come not at the said Summons except he may reasonably and lawfully excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished according as of old times hath been used to be done within the said Realm in the said Case and if any Sheriff of the Realm be henceforth negligent in making his returns of the Writs of the Parliaments or that he shall leave out of the said Returns any Cities or Burroughs which be bound and of old Times were wont to come to Parliament he shall be punished in the manner as was accustomed to be done in the said Case of Old Time in the French d' Anciente From which Statute we may draw these Conclusions First That the Knights Citizens and Burgesses are as supposed by this Statute to have a like Right to have Summons to Parliaments as hath been accustomed of Old Time as well as the Lords Spiritual and Temporal here mentioned Secondly That by these Words have been accustâ—med of Old Time or d' Anciente we are to understand a general Custom of the Realm Time out of Mind that is by Prescription so that if the Bishops Abbott and Temporal Lords are here acknowledged to have had a Right to sit in Parliament by Prescription so have the Commons likewise by the same Words equally applyed to all the Orders here mentioned Lastly That if the Sheriffs shall neglect in making Return to any such Cities and Burroughs which were thus bound to come to the Parliament of Old Time he shall be punished as hath been accustomed to be done in all time past or d' Anciente now pray tell with what colour of Justice the Sheriffs could be thus punisht if there had been no certain rule to know what Câ—ties and Burrough were bound to come to Parliament of Old Time but it had been wholy left at the Sheriffs Discretion which they should Summons and which they would omit let us next compare this with the Statute of 23d of Henry 6th c. 15. which Mr. Prin has here also given us reciting That divers Sheriffs of Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen to come to the Parliaments but such Knights Citizens and Burgesses have been returned which were never duely chosen and other Citizens and Burgesses than those which by the Mayors and Bailiffs were to the said Sheriffs returned and moreover by no Precepts to the Mayors and Bailifts or to the Bailiff or Bailiâ—â—i where no Mayor is for the Electing of Citizens and Burgesses to come to the Parliament and then appoints the Penalties for the said abuses and neglects Now pray let me ask you whether this bare Abuse of the Sheriffs and neglect of the duty of their Office here condemned by this Statute and for which the former Statute of Richard II. declares them punishable at Common law as this Act makes them liable to it by Statute Law could give them such an Arbitrary Power as this Author fancies much less can serve to corroborate his Opinion as he here supposes it does concerning the true original continuance discontinuance reviving and antiquating Parliamentary Cities and Burroughs not by Charters and Patents from the King or Prescription time out of mind but by the Sheriffs Arbitrary Power and Returns by the forecited general Clauses in the Writs But since I confess I have dwelt too long on my Answer to Mr. Prin's Arguments I shall conclude with only giving you one Record which I hope will sufficiently satisfie you that not only St. Albans but several other Antient Burroughs claimed to send Burgesses to Parliament by Prescription which appears by a Writ or Commission reciting a Peâ—ition of the Town of Barnstaple to King Edward the Third and his Council in Parliament which is to be found in the Patent-Rolls of the 17th of this King seting forth that the said Town had been a Free Burrough à tempore câ—jus contrarii memoria non exisâ—it and as such enjoyed divers Liberties and Free Customs by a Charter of King Athelstan and this among others ac quod ad singula Parliamenta nâ—stra dictorum Antecessorum nostrorum among which the said King Athelstan must certainly be reckoned for one duos Burgenses pro Communitate ejusdem Burgi mittere solebant and therefore
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
insurrections made him use all the means he could to prevent it for the future so that at the most they were but temporary constitutions and did not last long nor could this Law of the Converâ—eâ— Bell be any badge of slavery on the English since we find the same custom to have been used in Scotland whom you will not say are a Conquered Nation nor do I find the Normans after they came over were any more exempted from this Law than the English Natives but I much wonder you should reckon the Laws of Decenaries or Tythings among the badges of Norman slavery since if you have read any thing in our Saxon Laws you will find as Ingulph tells us that K. Alfred first appointed ut omnis indigena lâ—galis in aliqua centuria decima existerit si quis suspectus de aliquo latrocinio per suam centuriam vel decariam condimnatus paenam demeriâ—am incurreret So that whatever other Laws you find either of our Saxon or Danish Kings or else among those of K. William concerning Triburghs and Tythingâ— It was only to confirm or re-inforce this Ancient constitution but that not only the meanest sort of Fâ—â—emen but the greatest and best Nobility and Gentry were subject to this Law of Tythings may appear by that Law I have already quoted of King Knutes whereby every Free-holder was to have his Family in his Pledge that is was bound to answer for him to the K. and if he were accused to have let him run away by his consent he was to purge himself by his own Oath and also the Oaths of five other Thanes that he was innocent so likewise the Laws of K. Edward confirmed by K. William are very particular on this Subject that all Arch-bishops Bishops Earls and Barons should keep their Knights and Servants there mentioned in their Frithborg that is in their Franâ— Pledg whereof the Lords themselves were to be the sureties aâ— appears by what follows viz. that if any of them offended their Lords should be obliged to do right in their Courts and to the same purpose is the 49th Law in Ingulph's Copy of these Laws the words are these Echascun Seniour ait sun seriaâ—â—u sun plege que si nile rete que ait a dreit el Hundred that is that every Lord keep his Servant in his Pledge that if he offend right may be done in the Hundred So that upon the whole matter I can see nothing considerable imposed by your Conqueror upon the free born English Subjects which they were not tyed to before the Conquest or which did not reach all the Normans he brought over with him as well as they M. I do confess I did not believe there was so much to be said to prove that William the Conqueror never altered the Laws of England in any of its material parts but since you have gone thus far pray proceed to shew me that he any ways confirmed all the Laws of the Saxon Kings his Predecessors since I conceive as a Conqueror he might justly have vacated what of them he would and I do not see any thing in his Coronation Oath that could have obliged him from it F. I doubt not but to give you very good satisfaction in this point for not only your Conquerors Will was never declared that the former Laâ—s should be Abrogated and till such declaration all Laws ought to remain in force even in the Conquest of Christians against Christians according to Sir Ed. Coke's opinion in Calvin's case but indeed the Antient and Former Laws of the Kingdom were so far from being abrogated that they were all confirmed by him for in his fourth year by the advice of his Baronage he summoned to London as the words are in the book of Litch field Omnes Nebiles sapientes lege sud eruditos sut eorum leges Consuetudines audiret Or as Hoveden relates it out of a Collection of Laws written by Glanvil Fecit summoniri per universos Consulatus Angliae Anglos Nobiles sapientes c. and twelve were returned out of every County who shewed what the Customs of the Kingdom were which as Mr. Selden tells us in his History of Tithes being written by the hands of Aldred Archbishop of York and Hugo Bishop of London were with the request of the same Barons confirmed in that Assembly which was a Parliament of that time and then in Hoveden follow the Laws of Edward the Confessor so confirmed by K. William among which is that Law concerning the Office of a King which I have now given you and before this at the very beginning of his Reign he also confirmed the Priviledges of the City of London as appears by his Charter in Saxon which is to be seen at this day which is also confirmed by Ordoricus Vitalis Guliâ—lmus Rex multa Lundoniae postquam Coronatus est prudentâ—r justè clemenâ—â—que disposuit quaedam odipsius Civitatis commoda vel dienitatem alia 〈◊〉 genti proficerent Vniversae Nonnulla quibus consuleretâ—r Ecclesâ—is terrae â—ura quaecumquedictavit optimis rationibus sanxit Iuâ—icium Rectum nulla persona nequicquam ab eo postulavit So that nothing is plainer than that at the beginning of â—worâ—â—eign he strove to oblige all sorts of People as well of the Clergy as Laity to a good 〈◊〉 of his Government M. But yet for all 〈…〉 self have granted that after the time of his Confirmation of these 〈…〉 you cannot deny whether provoked by the frequent 〈…〉 or else resolving to make use of his Right by Conqâ—est 〈…〉 upon the English Nobility and Gentry and outed most of 〈…〉 and forced them to flee into Foreign Countries so 〈…〉 Sword as soon as ever he came to the 〈…〉 whatsoever English he thought might be dangeâ—ou◠〈…〉 notwithstanding his Confirmation of K. Edward's Law he 〈…〉 by Conquest And as for your 〈…〉 Câ—â—querors confirming these Laws the 〈…〉 whether he admitted any of the 〈…〉 consult of the weighty Affairs of the 〈…〉 throughly setled himself on the English Throne especially if it be considered that K. William kept not all the promises which he made at all times Now as your self allow this grant was made in the fourth year of his Reign but he had not then setled himself so well as he would nor had he then made an entire Conquest of the Nation that was not done until after the great appearance of the Natural English in Armes and the great meeting which Frederick Abbot of St. Albans with others headed at Berkhamslead which was not until above four or five years after this confirmation so that your Testimony from the Litchfield Chronicle and Roger Hoveden being before he setled himself as he could and intended to do signifies nothing and that it was from sometime after this transaction that Mat. Paris reckons the thorough Conquest and subduing the Nation as appears by this note in the beginning of the Life of Abbot
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the arch-Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
farther confirmed by several undeniable Authorities wherein by the Communitas Populi must be understood not the Community of the People or Commons but the whole Body of the Less Tenants in Capite But to give you an answer why the Word Populus could not comprehend all sorts of people among the Saxons as it did among the Romans but only the Nobility who were then properly speaking the only Freemen is this that none but the Nobility possessed any Lands in Fee-simple all the rest of the meaner sort of people then called Cheorl Folk holding theirs in Villanage under their Lords or Thanes being no better than meer Villains or Costagers and who were all bound to the Good Behaviour every tenth Family being bound one for another in the Sheriff's Torne or Court of Franc-Pledge under their Head or Tenth Man called the Tything-man who was to answer for them So that the common People of England were not such a Free People nor had any share in the Government as some suppose there being I believe no such persons as our Yeomen or Faâ—â—â—ers in those days F. Tho perhaps this Law might very well be transcribed from some old Copâ—â— of King Aethelbert's Laws not now extant and in which there might be the Word Thanes instead of Baronibus which is but a Translation of it in the sense iâ— which it was used not long after the Conquest Nor is it true which you affirm that the Word Barones was never in use before the coming in of the Normans in ancient Charters as I shall prove to you by this Charter of King Edgar to the Abby of Westminster containing a confirmation of their ancient Charters and Priviledges collected 〈◊〉 the aforesaid Sulcardus a Monk of Westminster as it is to be found in the Cottonian Library the Charter it self is long but concludes thus In Concilio habito infra Basilicam Westmonast Praesidente 〈◊〉 Filio suo Edwardo Archiepo Dunstano universis Episcopâ—â— Baronibus suis where you may see that the Word was not unknown before the time of William I. and I could give you more Instances of other Kings Charters where the same Word is used before the Conquest were it worth the while to trouble you with them And so likewise Populus for People or Folk in the Saxon Yet take it as you suppose to have been writ not long before the time Hoveden writ his History which was above 80 years before the 49th of Hen. III. This Author or whoever else added this Passage to this Law about Tythes did then suppose that according to the custom then used the People had Representatives in those Assemblies which I shall prove from your own sense of these words for if the word Populus signifies here another sort of men different from the Lords then this word Populus must necessarily signifie some that were Commons and not Lords by your own concession and who also must represent others besides themselves but it is highly improbable that by this word Populus should be meant the Communitas Angliae or the Communitas Baronum for then since the word Baronum would have included all the Tenents in capite both Great and Small to what purpose should the word Populus have been added at all Therefore I am so far from believing this way of expressing the several Estates of the Kingdom to have been a Monkish Blunder as you suppose that â—t was rather a common and ordinary way of Expression among the Writers of those Timeâ— as well in Records as Histories who then very well knew the People or Commons to be an Estate or Constituent part of the Common Council of the Kingdom quite different from the Lords and in which sense it is recited in an ancient Charter of King Iohn That He being divorced the New Queen was crowned de communi assensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri Pâ—puli totius Regni Where by Clerus it is plain must be meant the Inferior Clergy represented by their Proxies in this Great Synod or Parliament and by Populus was understood the People or Commons likewise present by their Representatives or else the Words Clerus and Populus had been idle Tantologies in this Record And in the like sense it is also used by Matt. Paris in the 9th of Hen III. presentibus Clero Populo cum Magnatibus Regionis Where this Author makes a plain distinction between the Magnates and the Populus which had been altogether in vain if the Word Magnates would have comprehended all your Greater or Less Barons or Tenants in capite But I shall in the next place proceed to that Great Synod or Council that was called by King Edward the Elder Anno Dom. 905. and is mentioned by Simeon of Durham and other Authors quoted by Arch-Bishop Parker the Compiler of the British Antiquities in these Words Plegmundus Cantuariensis Archiepiscopus â—â—â— cum Rege Magnifico cognominato Edwardo seniore Consilium Magnum Episcoporum Abbatum Fidelium Procerum Populorum c. convocavit Which Synod or Council was called to divide the large Dioceses of Winchester and Sherbarn into five other as I have already told you where you may plainly see the Words Fidelium Populorum put distinct from the Word Proceres if we take that Word to signifie only the Greater Nobility I shall now conclude with a few Words in reply to your Answer why the Word Populus could not among the Saxons take in all sorts of People as well as amongst the Romans for I cannot take it as a satisfactory answer for these Reasons 1. Because tho I should grant that the Vulgar sort of People were greater Slaves than they are now and that they had no hereditary Properties in their Estates but at the will of their Lords yet does it therefore follow that all the Freemen of the Kingdom were Noblemen or Gentlemen or else Villains as now understood since Nitardus tells us in the place above mentioned that there were three sorts of people among the Saxons Edelingi Frilingâ— Lazzi i e. Gentlemen or Noblemen Freemen and Slaves or Villains and this middle sort of men might also possess Lands in Allodio or Free-Tenure tho they did also depend upon other greater men for Protection and seem to be those who were after the Conquest called in Doomsday Book Commendaâ—â— i. e. such who tho they lived under the Protection and within the District of some Great Men Lord or Patron yet as Sir Hen. Spelman tells us were free both as to their Persons and Estates not as sworn to or holding of any but the King And besides these there were also great Bodies of men in Cities and Burgh Towns and those very considerable for Estates and other Riches who tho not nobly born and yet being Freemen it was but reasonable that they should have their Representatives in Parliament as well as the former M. I shall not at present
called Catalogus Gloriae Mundi written on this subject where in his 8 th part consid 18. he hath this amongst other Comments on the word Nobilitas Nobilitas etiam causatur ex loco quoniam civis ex urbe splendida oriundus Nobilis est for which he there gives many Authorities And this Title he looks upon as due also to Countrey Gentlemen living upon the Husbandry of their own Estates or Annual Rents And that by the word Magnates are often understood the Knights of Shires commonly called in old French Grantz des Countees I can give you sufficient Authorities Now this word Magnates is always rendred in our old French by Grantz For the proof of this I desire you in the first place to take notice that Rot. Claus. 3 E. 2. in 16. dorso you will find this Title Inhibitio ne qui Magnates viz. Comes Baro Miles 〈◊〉 abqua alia Notabilis persona transeat ad partes transmarinas Where you see the word Magnates is applied to Knights at least as well as Earls and Barons And amongst the Common Writs of Michaelmas Term Anno 34 Edw. I. in the keeping of the Remembrancer of the Treasury of the Exchequer the Knights of Shires and Barons of Cinque-Ports are called Magnates So also in the Statute 25 E. 3. de servientibus it is there Enacted per Assent de les ditz Prelatz Countes 〈◊〉 autres Grandes de la dite Communalte illonques Assemblez Also in the Statute-Book printed in French in the Statute of the Staple 27 E. 3. the Knights of the Shires are expresly called Grantz des Counties And lastly as for the word Optimates which is derived from the superlative Optimus it signifies no more than the best sort of men in any Commonwealth or City And in this sense William of Malmesbury in his History speaking of the rich Citizens of London hath this Remarkable Passage Londinenses qui pro magnitudine Civitatis optimates sunt And that not only Knights but also such Citizens as were remarkable and eminent for their Estates or Offices in Cities had the appellation of Magnates appears from an Ancient Manuscript Book kept in the Archives of the City of London where in Anno Dom. 1229. being the 13 th of Hen. 3. an Act of Common Council was made per omnes Aldermanâ—aes Magnates Civitatis per assensum univer-sorum Civium quod nullo tempore â—ermitterent aliquem vicecomitem admitti in vicecomitem per duos annos continuos sicut 〈◊〉 extiterant So likewise in the same Book Anno Dom. 1244. 29. H. 3. mention is there made of a Dissention that then arose about the Choice of a Sheriff and the Book says that quidam de vulgo Elegerunt Nichol. Bat. per assensum Majoris Magnates elegerunt Adam de â—ently I could give you more of a like nature but I will not tire you but no doubt but the Eminent Citizens of York and other Cities were called Magnates in those times From all which we may safely conclude That not only Knights of Shirâ— were stiled Magnates but also the Representatives for the Cities were often stiled Proceres Magnates and Nobiles in our Ancient Rolls and Acts of Parliament and other publick Writings I beg your Pardon for being thus long but I could not make an end sooner and prove the true Sense of these Words in question from Ancient Historians Acts of Parliaments and Records by which I hope you will be satisfied how unsafe it is to depend upon the general and various expressions of our English Historians especially as understood by those of yoâ—â— opinion since if we should depend upon them alone the Commons would not oftentimes be found to have been present in Parliament even when the Records themselves expresly prove they were there M. I must confess you have made me think more on this Subject than perhaps otherwise I should have done yet I must observe That most of the Quotations you have made use of concerning the meaning of the words Proceres Magnates and Nobiles c. are from Authors who writ after the time that I 〈◊〉 the Commons as now Represented to have been constantly Summoned to Parliament so that they might very well through haste or inadvertency confound them with the Earls and Lords and so stile them by the same Titles For I will prove to you before the conclusion of this Discourse by undeniable Records That by the words Magnates and Proceres are understood the Bishops Earls and Barons as distinguished from the Commons But I think I can sufficiently prove from Mat. Paris and the Ancient Laws of our first Norman Kings as also from the Magna Charta of King Iohn That by the words Bartneâ— iâ— meant the Tenents in capite who are there only mentioned to haâ— constantly appeared in Parliament till the 18 th E. 1. the Greater and Less â—â—â—ons or Tenents in capite together with those of higher degree viz. the Earls Bishops and Abbots being the only persons who represented the whoâ—e Body of the Nation in our great Councils or Parliaments And I take this to be 〈◊〉 evident and clear that I cannot quit this Opinion without you can shew 〈◊〉 better Reasons to the contrary than hitherto you have done F. I see nothing will satisfie those who have once received a Prejudice 〈◊〉 otherwise I think it may be proved sufficiently from that Clause in Magna Chartâ— I have mentioned That other persons were there before the 49 th of Henry 〈◊〉 besides your great Barons and Tenents in capite And as for the use of 〈◊〉 words you mention in Historians after the Reign of Hen. III. nothing can be a plainer proof for me For if those Historians did comprehend the Common under those general Words or Phrases we have been now disputing about I deâ—sire to know why they might not have been likewise comprehended under thâ— same terms by Mat. Paris and those other Historians who writ other Historieâ— from the Norman Conquest to his time and why thy might not have then conâ—founded the Commons with the Lords as well as they did afterwards But since I see you insist so much upon your Barones and Tenentes in capite whom you wiâ— have alone to constitute the Baronagium or the Communitas or Universitas Barâ—â—gii Angliae pray give me leave to ask you a plain Question Were your lessâ— Tenents in capite or Barones minores Lords or Peers of Parliament or were they Commoners only M. To give you Mr. Selden's Opinion in his Titles of Honour cap. 5. He supposes that from the time of the Conquest to about the middle of King Iohn every Tenant by reason of his Tenure of Lands he held in capite was indifferently an Honorary or Parliamentary Baron but that about the end of King Iohn's time some only that were most eminent of those Tenants sometimes stiled Barones Majores Regni were summoned by several Writs directed to them as
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
and the other Less Barons or Tenants in capite ever since the 17th of King Iohn were summoned by one Common Writ directed to the Sheriff of the County since which time if not some time before I grant these Tenants in capite were not look'd upon as Barons or Peers of the Kingdom properly so called Yet did their Votes in Parliament still conclude and charge their Tenants in the making and imposing of Taxes or Laws which they alone together with the Bishops and greater Barons still performed until the Times I assign F. I see you are in a Wood and do not know well under what Class to rank your Tenants in capite for if they were at first all Lords or Peers how could they serve upon Juries in Hundred or County Courts If they were meer Commoners then there were Commons in Parliament before the 49th of Henry III. and why might not others as considerable Commoners have Places in the Great Council as well as they whether they were the Kings Barons or Tenents in capite or not But in answer to this you tell me that we never had any Barons held by mean Tenure here in England this is plainly equivocal for if you mean it of Baronies in capite it is true if of other Baronies it is false by your own Confession And Sir H. Spâ—lman tells us in the Title last quoted that the Barons of Burford pleaded to hold of the King per Baroniam and yet he was never any Baron of the Kingdom Now I desire you to shew me if he and such like Barons as himself had no place in Parliament who it was represented them there And therefore in answer to your Dilemma I grant that every Baron by Tenure was a Tenant in capite but every Tenant in capite was not a Baron and this I think is so plain that you your self cannot deny it But in answer to your next Question I can answer it without asking the Gentleman from whom you suppose I borrow the Notion that there might be other Barons or Lords of Mannors who by reason of their Estates might have Places in Parliament supposing Knights of Shires were not introduced till after Henry the II. or King Iohn's Time when such Freeholders became too numerous all to appear in person and yet these might not be Barons by Tenure And therefore all your Questions conclude nothing For you suppose that which is still to be proved That because all the Barons of England properly so called held of the King in capite and were consequently his Barons that therefore none but Bâ—rons and Tenants in capite had any place in our Great Councils which is the thing you only suppose and I as positively deny M. Well Sir since you put it to that issue I hope I shall fully convince you that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament before 49th Hen. III or 18th Edw. I and who done gave assent to all Laws that were made and all Taxes that were to be imposed on themselves and their Under-Tenants who were then concluded by the Acts of their Superior Lords But not to wrangle with you any longer about the signification of the Word Barones I grant there were Nominal or Titular Barons very many such as I have mentioned nay that there were several other Great Subjects who had Tenants that held 5 6 7 8 〈◊〉 nay more Knights Fees under them and who had the Name and Title of Barons But what is this to the purpose I desire you would prove to me by any direct proof that these sort of men had any Voices either by themselves or their Representatives in our Great Councils till after the time we allow them and this besides the Proofs I have already brought I think is sufficient Since it is plain that the Barones Regni or Terra and the Milites and Homines sui are all one and the same Persons that is they were the King 's Great Barons or Tenents in capite who alone constituted the Baronage or University of the Baronage of England or of the Kingdom in our Great Councils or Parliaments And for the farther proof of this I need go no farther than those very Arguments your own Author Mr. P. hath made use of in his Right of the Commons asserted wherein he would prove from certain Letters that were sent from the Baronage or University of the Baronage of England to the Pope against the Church of Rome's Exactions here in England And therefore I shall not bring only Fragments Phrases or single Words out of the Records or Histories which seem to countenance my Opinion contrary to the true meaning of those Records and the sense of the Historians as some of your men do but shall give you the Quotations out of those Authors whole and entire and shall make such reasonable Deductions from them as I think you will have no reason to deny to be fairly raised from the Words themselves And also as Matt. Paris relates in the 29th Hen. III. the Earls and Barons sent Letters to the Pope then at the Council of Lions to complain of the Pope's Exactions which Letters are said by this Author to be directed A Magnatibus Universitate Regni Angliae And tho it is also true that in the same Year there were other Letters sent thither from the same Parties to the Cardinals there assembled which are recited by the Old Manuscript to have sent Messengers to the Cardinals and the Old Manuscript in the Cottonian Library that they sent to the Cardinals assembled at the Council of Lyons Letâ—ers a Baronibus Militibus universis Baronagii Regni Angliae per procuratores 〈◊〉 Rogeram Bigod Comitem Norff. Willielmum de Cantelupo Iohannem silium Galfriâ—â—â— Radulphum filium Nicholas Philippum Basset Barones Procuratores Baronagii Angâ—â—â— tunc temporis Innocentio Papa Quarto celebrante Concilium ibi generale Anno Gratia 1245. And the Letters are thus directed Venerabilibus in Christo Fratribus uniâ—â—sis Singulis Dei Gratia Salutem Barones Milites Universitas Baronagii Regis Angliae And that Matt. of Westminster does likewise agree in this Relation only stiles the Persons last named Milites whom Matt. Paris calls Viri Nobiles discreti But this will make no difference as I shall shew you by and by And to these Matt. of Westminster adds Mr. William Powic Clark who seems to have been their Secretary But notwithstanding it will appear that all these Persons so sent named Barones Milites universitas Baronagii did not represent the Commons of England at all but only the Great Earls Barons and Tenants in Capite For first it appears from Sir W. Dugdale's Baronage of England that every one of the Persons here named was either an Earl Baron or Great Tenant in capite and nâ—â— Common Persons as your Author would have them And tho it true the Cottonian Manuscript
that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
welcome Sir but I did not expect to see you again so soon M. I beg your pardon if I come unseasonably but the truth is I have so great a desire to conclude what we began upon that important Subject we last discoursed of that I could not be at ease till I had done my endeavour to give you Satisfaction therein if it be possible But to come to the matter that we now meet about I must now tell you again that tho' this your gloss upon King Iohn's Charter seems plausible at first sight nay is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter yet upon better consideration I can see no good reason for making a full or at least a half stop in the 16 th Article after these words omnes liberas consuetudines suas adding the rest that follows ad habendum Commune Concilium c. to the following Clause de seutagiis assidendis c. much lest for supposing as you do without any ground that there were two sorts of Common Councils one for Assessing Escuage and the other for Granting all other Aids and Taxes and then if read otherwise it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown and Assess Escuage ratione tenurae which I am the more inclined to believe from the fourteenth Clause here cited which says That no Scutage or Aids shall be imposed unless by the common Council of the Kingdom Now to what purpose is this so-express'd if there was to be one Council for the granting of Aids and another for the Assessing of Escuage So that if this Common Council of the Tenants in Capite might grant Aids and Assess Escuage upon the Subjects unless in the case before excepted I see no reason why they should not be the only Council for the giving their Assent to Laws also and consequently of concluding not only their own Tenants but the King's Tenants in Petty Sergeanty and Socage nay the Tenants of any other Persons whatsoever And though I have seriously considered Mr. P's Appendâ—x to the Rights of the Commons asserted and Dr. b's Answer to it as also his Animadversions upon Iani Anglorum c. Yet can I not see any colour of an Argument for making any distinction between the King 's Curia of his Great Lords and Tenants in Capite and the Great or Common Council of the Kingdom but that they were then all one and the same It would be tedious to me as well as you to run over all the particular Authorities and Examples which have been urged pro and con in this Question But I desire you or your Friend Mr. P. to shew me that there was any Bishops Earls Barons or other Members of Parliament in the times we now treat of that had any place or Vote therein but according to their Tenure and the ancient Custom of all Feudal Tenants who by the German Gothic and Lombard Feudal Laws which in substance were the same with ours were always summoned to the Court of the King their Supreme Lord. But farther to prove that this Council for Assessing Escuage was no other then the great Council or Parliament of those Tenents in Capite appears from Liâ—tleton's â—enures where in his second Book Sect. 97. he tells us That after an Expedition Royal into Scotland Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition so that if the Parliament did then Assess Escuage I desire to know why they might not do it in the Reign of King Iohn iâ— this great Council of the Arch bishops Bishops great Lords and Tenants in Capite were not the Common Council of the whole Kingdom in those Times yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn Thus it was for Aids and Scutage Service but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation then the Tenants in Capite were not only the sole Grantors but the Collectors of that Scutage too from their Mesne Tenants And the Writs to the Sheriff was different from these in Scutage Service though the same in Substance as likewise appears by those Records the Dr. hath there given us F. I doubt not but I shall make good my Assertion and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter In the first place I must stick to that way of reading and pointing of this Clause in dispute since it is not only agreeable to the Dr's Manuscript Copy but also to the old French Copy published by Father D'achery in his Spicilegium vol. 13. which is written in the French of thaâ— time but to answer your Objection against this Interpretation you your self have in great part helped me to do it by that true distinction you have now made between a Scutage as an Aid or Tax and as a Service the latter of which you assert might be granted to the King to be raised by his Tenants in Capite upon their under-Tenants whereas the former was only grantable in Parliament by the Common Council of the whole Nation Which Tax I Affirm was always granted to the King and imposed by the Common Council of the Kingdom only and not by the Tenants in Capite alone before the Expedition was undertaken Whereas Scutage Service considered as a payment of so much Money was never due or payable till the Expedition was ended and then only upon such as had failed to serve in Person or by sufficient Deputies and was then to be Assessed by the Tenants in Capite alone And though I grant it may seem to have been a Prerogative as you call it exercised by some of our Kings sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law and the express Grant of this Charter it self as is that Writ of King Iohn to the Sheriff of Glocestershire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber Earl of Winchester for making his Eldest Son a Knight and which the said Earl might have claimed of his Tenants by the Common Law as also by the 20 th Article of that Charter but for Scutage Tax Littleton tells us Lib. 2. Sect. 101. That because such Tenements came at first from the Lords it is Reason they should have Escuage of their Tenants and the Lords in such case might
Concilium Regni and gave this aid of a 40th part of their Goods viz. The Arch-bishops Bishops Abbots Priors Inferiour Landed Clergymen the Earls Barons Knights Freemen c. it being a Subsidy granted upon Goods and not laid upon Land and that it may fully express all the Parties to the Grant the Record tells us there were also the Villani the Inhabitants of every Village or Burrough Town And to let you see that our Ancient Manuscript Chronicles of this Age give the same sense to the expressions of this Record and that in the same Terms Pray Read this Quotation which a Friend of mine took out of an Ancient Manuscript called Chronica Monasterii de Hageny in the Cottonian â— Library as Ancient as the times are we are now treating on the words are these Anno 17. Henrici Regis 4 ti where note that the year is mistaken for 16. but the King is the same Henry the Third being often in that Age called the Fourth in respect to King Henry Son to Henry the Second Idem Rex accepit ab Archiepis Epis. Abbatibus Prioribus Clericiâ— terras habentibus quae ad Eccles. sua non pertinent ab Comitibus Baronibus Militibus Liberis hominibus villanis de Regno Angliae in Auxilium quadragesimam partem omnium mobilium suorum And to let you see that this Author makes a plain distinction between the Tenants in Capite and the rest of the Kingdom pray observe what immediately follows in the same place ut Anno. viz. 8vo A quo communi Assensu voluntate Magnatum suorum quam aliorum laicorum totius Regni quintam decimam Catalorum suorum universaliter accepit Where note by accepit is still to be understood he received it after the Peoples grant of it as before in the Record of the 16. and that by Magnatum suorum is meant the great Lords and Tenants in Capite and by aliorum Laicorum put here as distinct from them all other Orders or Degrees of men Now pray how could these Taxes upon the Goods of the whole Kingdom have ever been given but by the general Representatives thereof since all could not be there in Person unless you can shew me that men in those days held their Goods and Chatels by Tenure in Capite M. I think you and I may so far agree that this Council I instanced in consisted of Tenants in Capite only and likewise that they imposed Scutage upon no others than their Tenants by Knight-service yet doth it not therefore follow that they were not the Common Council of the Kingdom or might not have Tax'd all others though they were not their immediate Tenants as well as they did those that were And therefore I am not convinc'd but that these Persons mentioned in the Records you have cited which you grant constituted a Common Council of the Kingdom were no other than the same Tenants in Capite already mentioned for as for the Fideles mentioned in the Record of 4 th Hen. 3. I think the Dr. hath very well proved both in his answer to Mr. P. as also in his Glossary that they were no other than the King's Tenants in Capite and for this pray consider the Authorities he there gives us For though I agree with you that the word Fideles doth sometimes signifie generally all those who are under the Power or Subjection of their Prince Yet Hottoman also tells us That Fideles interdum specialiter dicuntur iidem qui Vassalli Qui Feudo accepto in Patroni Fide Clientelâ— sunt vicissimque suam ei certi obsequii nomine Fidem astrinxerunt and in this sense I suppose this word is to be taken in most of our Histories and Records I shall therefore give you one which will sufficiently clear the true signification not only of the word Fideles but of Liberi Homines too It is in William Malmâ—bury in these words Williâ—mo Filio suo Cum vix 12. Annorum esset omnes Liberi Homines c. Cujuscunque ordinis Dignitatis cujuscunque Domini Fideles Manibus Sacramento se dedere coacti sunt By which you may see that by the words Liberi Homines Fideles are here meant only the Feudal or Military Tenants either of the King or of any other Lord And to prove it farther by Records pray see here â—hose that the Dr. hath given us in the same place The first is that of the Patent Rolls of the 15. of King Iohn Rex Baronibus Militibus omnibus Fidelibus totius Angliae Salutem They were to hear what the Bishop of Winchester was to say to them about the Releasing the Interdict and that these Milites and Fideles were only the King's Tenants in Capite is clear from the latter part of this Record Vnicuique vestrum si fieri potest Literas nostras super hoc transmissemus sed Negotium majori Festiâ—atione c. Teste Meipso apud Rupel c. The King had writ to them all particularly but that the business required greater haste It seems before the granting of Magna Charta this King sent special Summons and particular Letters to his Barons and other Tenants in Capite to meet upon any occasion So likewise in these Writs there mentioned to the Tenants in Capite of several Counties as they are found in the close Roll there cited Rex omnibus Comitibus Baronibus Militibus aliis fidelibus suiâ— de Com. Ebor. Northumbr Cumbr. c. Vobis mandamus quod Prompti sitis Parâ—ti cum Equis Armis c. These were the Feudataries and Tenants in Military Service But to speak somewhat of the Clerici Terras habentes c. as also of the Liberi Homines Villani mentioned in the Record of 16 Hen. 3. you have now cited 1. I cannot allow your Version of those words Clerici Terras habentes qua ad Ecclesias suas non pertinent by Inferior Landed Clergy-men since 't is more than you can make out for I take them to be such Clerks as had Mannors and Free or Military Fees belonging to their Benefices and that held of the King in Capite the Fee whereof was in the Crown and not in the church and therefore did not belong to it But Mat. Paris fol. 377. informs us better who they were that gave this Tax when he speaks concerning this very Council ad Coloquium coram Rege convenerunt Episcopi aliarum Ecclesiarum Praelati cum Proceribus Regni concessa est Regi quadragesima pars honorum Now what the Liberi Homines were in this Record you have cited we may easily guess from the other Records I have made use of in 19 Hen. 3. viz. such of those Omnes alii qui de nobis Tenent in Capite which were not Milites in a strict sense or had not received the Order of Knighthood And I shall make out this sense of the words as also of
cum de Negoâ—iis supra dictis maxime de prosecutione Negotii Siciliâ—e diligenter cum iisdem tractaremus ac ipsi nobis responderum quod si statum Regni nostri per Concilium Fidelium Nostrorum ratificandum duxerimus Dominus Papa Conditiones cirea factum Siciliae appositas melioraverit per quod Nigeâ—ium illud prosequi possâ—mus cum effectu ipsi diligentiam fideliter apponent erga Communitatem Regni nostri quod nobis Commune Auxilium ad hoc praestetur c. The rest I shall not trouble you with because it is not to our present purpose But you may here see that taking the Words Proceres and Fideles in your own sense the former for the Bishops and Lords c. and the latter for the Tenants in Capite who were called to consult about the business of Sicily which Kingdom the King had before too rashly accepted of from the Pope Yet tho they were all met they could do nothing but give him advice and could give him no Commune Auxilium i. e. common Aids or Subsidies without the consent of the Commonalty of the Kingdom Now what can this Community signifie but the Commons for your Lords and Tenants in Capite were all met already and if they alone made up the Common Vniversity or Body of the Kingdom as you suppose why could they not have immediately granted the King the Assistance he desired if they had a sufficient Power so to do without putting him off with a Promise that they would use their endeavour with the Community of the Kingdom as a distinct order or Body of Men That this Aid or Subsidy should be given him and upon this condition it is that at the end of this Record the King Promises them that before Christmas He would mend the State of the Kingdom per Consilium Proborum Fidelium Hominum nostrorum which can mean nothing less than a Parliament which the next Record in the same Roll recites was to meet at Oxford after the Feast of Penâ—icost which Record since it not only recites the King's Oath whereby he had bound himself to observe the Direction of a Committee of 24â— Fideles i. e. Faithful or Loyal Man 12 of which were to be chosen out of the Kings Council and the other 12. by the Procoreâ— or Magnates Regni which as I have already proved may take in the Commons as well as the Lords but whether by these wordâ— were meant the Lords or Commons The conclusion of this Record sufficiently confirms my Argument from the precedent Record that the Lords and Tenants in Capite could not then Tax the whole Kingdom at their Pleasure without the consent of the Commons or else to what purpose are these words in the conclusion of this last Record Promiserunâ— etiam nobis Comites Barones Memoraâ—i quod expleris Negotiis superius tactiâ— bonâ— fide laboraâ—unt ad hoc quod Auxilium nobis Communâ— praestâ—â—ur à Communitate Regni nostri in cujus rei c. Dat 2. die Maeii And it appears by the Date as also by the entry on the Roll that both these Records were perfected at once and concerning the same business and further to prove that the Parties appointed in the Record to be chosen ex partâ— Procerum were not chosen by the great Lords or Peers only may be seen from a Patent Roll of the same 42. Hen. III. whereby Henry de Wengham Dean of St. Martin le Grand and then Keeper of the Great Seal and Iohn Manseâ— Provost of Beverlay were two of the said Commissioners tho they were neither Barons nor Tenants in Capite as I know of hue only Eminent Lawyers and Men of great Abilities and so meer Commoners Yet Mat. Westminster calls these Men Proceres as you may see by this Passage speaking of this whole Committee Videntes ergo Proceres antedicti viginti quatuor ad Regis Regni regimen 〈◊〉 Electi c. I shall only now conclude with a French Record which the Dr. himself hath also given us at large and which refers to the said Committee of 24. above mentioned it begins thus Henry par la Grace de Dieu Roy d' Engleterre c. a touz ceus c. Sachiez ce pur le profit de nostre Reâ—ume é a la Requeste de nos â—auz Homes é Prodes Homes é du Commun de nostre Râ—aume Otreyames es vinc quatre Homes eusâ—ent pâ—â—r perqâ— tous ce quil ordencirent del Estat de nostre Reaume fust serm é Stable the rest being very long you may read at your leasure only I shall take notice of the date of this Letter to which the King also put to his Seal The conclusion being thus Coste chose feu feite a Lundre landemaigne prochein apros la Gaule bauâ—â—l'an de nostre corronement quarente secundo and tho the Dr. caâ— make nothing of the words Gaule baut this happened I suppose either from the bad Writing of the Record or from the Ignorance or Mistake of the Transcriber for it should be Gaeule d' Aut that is the Gula of August which is a great Holy Day in the Church of Rome upon the First of August called also St. Petri ad Vincula in the Memory of St. Peter's Chains curing of a Roman Virgin by her Kissing them I shall only observe from this Record that the Hauz or Prodes Homes mentioned in this Record being taken in the Drâ— own sense for High and Wise Men that is the Earls and Barons yet the words è du Commune that immediately follow them must needs signifie some Body of Men different from the former or else it had been a notorious piece of Nonsense since if the former words had taken in all the Lords and Tenants in Capite that is in your sense the whole Community of the Kingdom to what purpose are these words è du Commune that are immediately subjoyned since the hauz Prodes Homes would have served to express all the Lords and Tenants in Capite whether taken as Great or as Wise Men. M. I confess what you have now said would carry some weight with it were I not very well satisfied that you impose upon your self by taking as I told you at our last Meeting these words Communitas le Commune Communalti in a wrong sense for the Commons as they are now when indeed these words before the 49th of Hen. III. nay the 18th of Edw. I. as the Learned Dr. shews us in his 2d Edition against Mr. P. are always to be understood either of the whole Representative Body of the Kingdom in general consisting of the Bishops Abbots Earls and Barons together with all the Tenants in Capite called by Mat. Paris and other Historians Communitas Baronagii or else for the Community of the Tenants in Capite alone Stiled Communitas Regni in our ancient Records And this I think I can prove to
will not affirm But least I tire you as well as my self in dwelling so long upon things so plain and obvious were not they by too much industry rendred obscure I come at last to the conclusion of your discourse which is no more then a repetition of what you had said at first that because all the Kingdom could not be Summoned to appear in Parliament and that Villains and Servants c. never paid to this Tax that therefore the words omnes de Regno are not to be understood literally a doughty discovery and therefore you have found an expedient to help this contradiction by your Tenants in Capite and Thy Knights Citizens and Burgesses for the Laity and by the Procuratores Cleri for the Inferiour Clergy whose Interpretation is most agreeable to truth I durst leave to any indifferent Judge for I must needs tell you once again I cannot see any manner of reason either from Authorities or from the Nature of the thing that your Tenants in Capite could be the omnes de Regno in a legal sense and as such did represent all the Freemen of Estates in the whole Kingdom therefore if you can prove this it may go far to convince me otherwise not M. Since you will not rest satisfied with those Authorities I have already produced to prove it pray let me discourse with you a little more particularly of the nature of Tenures by Knights Service I therefore suppose that the Dr. hath very well prove by several Records as also the two Writs of 19th Hen. III. to the Sheriffs of Somerset and Sussex that the King anciently by his Prerogative and his original Power and Right reserved upon Knights Fee did Tax the Military Tenants of his Tenants in Capite and their other ordinary Free Tenants and by his Writs caused them to pay both â—cutage Tax and Scutage Service and other reasonable Aids as often as necessity required F. I grant indeed the matter of fact to have been sometimes as you say since there is no averring against express Records but I say likewise that as for those Writs the Dr. has given us concerning the Kings Ordering the Sheriffs to distrain the Mesne Tenants of the Tenants in Capite for Scutage Service as to Marry their Daughters or for the finding of Men in any Warlike Expedition it was no more then those Mesne Tenants were bound to do by the Tenures of their Estates if they had failed to serve their Lords in Person or by sufficient Deputies and therefore the King might legally grant them Scutage upon such Tenants and perhaps might also change their Service in Person into a pecuniary Aid as appears by some of those Writs the Dr. has given us and this not by his Prerogative but by Law so likewise tho your Tenants in Capite could Tax themselves in their distinct Council or else in the Common Council of the whole Kingdom at what rate they pleased for the Knights Fees they held of the King and tho the King might sometimes undertake by this pretence to I evy a Scutage of two Marks on their Under-Tenants also yet does it not appear by either of those Records you have now cited that they gave for more then themselves alone the words in the Writs being only that they had given the King Esseâ—ax Auxilium of two Marks upon every Knights Fee as well Wards as others who held of him in Capite without any mention of their Mesne Tenants so that if the Sheriff was afterwards ordered to distrain these Mesne Tenants also for two Marks for each Knights Fee they held of their Lords this was straining a point of Prerogative and was expresly against Law for at this rate the King might by the lâ—ke Prerogative have Taxed all the Bishops Abbots great Lords and all other Tenants in Capite without their consents as well as their Mesne Tenants tho it was contrary to the express words of the Charters of King William I. and King Iohn which you your self cited at our former Meeting so that granting the matter of fact to have been practised sometimes as your Records make out this is no proof that this was a constant Law or settled Custom much less that the King had a right so to do M. I do not doubt but that I can prove to you that what this King then did in charging these mesne Tenants was according to his ancient Prerogative and what himself and his Predecessors had frequently done both before and after the Clause in King Iohn's Charter of Nullum Scutâ—gium vel Auxilium ponam in Regno meo â— was granted nay after it was granted Hen. 3. and Edw. 1. taxed their Demeasns through England tho not the whole Kingdom by the advice of their Privy Council until the Statute de Tallagio non concedendo was made in 34 Eâ—w 1. and both Rich. 1. and K. Iohn had taxed the whole Kingdom without common assent before the Grant of Magna Charta as also in the Reign of Rich. 1. as you may find in Hoveden who lived at that time the passage is long and therefore I shall only give you the beginning of it viz. that this King Anno 1198 Regno 9. accepit de unaquaque Carucata terrae totius Angliae V. solidos de Auxilio c. and then goes on to shew us the manner how it was raised and collected and 't is observable that he uses these words Auxilium and Tallagium for the same Tax so we find in Mat. Paris that King Iohn took a seventh part of all Moveables without common Assent and another time a Thirtieth the great Men and Clergy grumbling at it K. Hen. 3. also taxed all his Demeasn in the 33 d year of his Reign as appears by a Writ in the close Roll of this year whereby he also commands the Sheriff of Buâ—ks that he make Philip Basseâ— a Ratiâ—nabilâ— Tallagium de hominibus suis de eo tenentilus in Mannerio de Wycumb quod aliquando suit Dominicum Praedecâ—ssorum Râ—gis c. In the 39 th year this King as the Doctor shews us at large by a Recoâ—d in the keeping of the Remembrancer of the Exchequer he taxed all his Demeasn and among the rest the City of London at 3000 Marks which tho with some contest mentioned in this Record they were at last forced to pay because it was found upon Record that this King and his Father had several times â—alliated or Taxed the saiâ— City in like manner at the sums therein mentioned so that at last the Mayor and Citizens were fain to acknowledg themselves thâ—s Talliable by the King So in the 52. year of his Reign he Taxed all his Demeasn Lands beyond Trenâ— by his Escheators and this Right was acknowledged by all the Bishops Earls and Barons in the 33 d year of Edw. I. as appâ—aâ—s by their Petition to him in Parliament in these words Al Pâ—tiâ—ionem Arcâ—iepiscoporum Episporum
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
a few and for the greatest part but one in each year never but two in any year in all this long Reign unless it be the 39th in which there are four which is very strange that in so busie a time as most of this Kings Reign was there should be no more Rolls left and therefore it seems very probable that at least half are lost and in which might be many Summons as well to the Commons as to the Lords and if they are not lost pray tell me what is become of all the Writs of Summons to your lesser Tenants in Capite who certainly often met in this long Reign according to King Iohn's Charter but if you will tell me they are lost or omitted to be entred upon the Close Rolls I may with like reason and certainty affirm the same of the Writs of Summons to the Knights Citizens and Burgesses for if the one may be lost sure the other may be so too But what if after all these Writs you have produced were not any Summons to a Common Council or Parliament at all but only to a great Council of the Tenants in Capite which I have great reason to believe not only because the Title to the last Writ is only Summonitio ad Concilium and not Commune Concilium Regni but also because Mr. Selden and Mr. Pryn who certainly must have seen all these Writs as well as the Doctor and were as able to Judge of them never cite them for Summons to Parliament and Mr. Pryn observes of several Writs in which the like words of Summoning the Lords to give their advice are likewise found that they were only to such Councils or Treatises which were frequently used as Low as the Reign of Richard II. but if these Writs had been Summons to Parliament sure Mr. Selden and Mr. Pryn had no reason to bewail as they so often do the loss of not only of Parliament Rolls but of all Writs of Summons both to Lords and Commons except those of 49th Hen. III. till the 23d of Edw. I. But pray go on if you please to make good the rest of the positions you have now laid down M. I doubt not but in the next place to shew you though 't is true most of our Parliament Rolls are lost both from our ancient Historians and Statutes that there were no Commons in any Parliament during all the long Reign of King Hen. III. except in the 49th of that King I shall begin with the first Act of Parliament we have of the time of Henry III. which was made in the 20th of this King at Merton where though it is said to be provided and granted as well by the Arch-bishops Bishops Earls Barons as others yet the words Aliis and others are to be understood of the Tenants in Capite distinct from the Earls and Barons as I have already proved F. I shall answer your Authorities as you go you may say you have proved it but I know not when and why may not I with as good a Face maintain that these words Aliis do here signifie the Commons if the word Barons must take in all the great Lords and lesser Tenants in Capite as sometimes you suppose it doth when no other Lay-Members are mentioned but I have already observed that this Barones is a Cheveral word and to be stretch'd or contracted as best suits with your Hypothesis So I think I may with greater reason suppose the Earls and Barons to be all comprehended under the word Barones and the Commons under Aliis as I have already proved and which is also most suitable to the last Clause of Magna Charta of King Henry III. But you forget that I have I think sufficiently made out that the Commons had their Representatives both at the making and confirming of Magna Charta in 2d and 9th of Henry III. and therefore whatever proofs you bring to the contrary will come to late though I shall patiently hear what you have to say but if you have no more Authorities to produce from Statutes and Records which have not been already considered Pray proceede to the 49th of this Kings Reign and give me some reasons why the Commons were called in that year and never before nor after till the 18th of Edw. I. for they both seem to me very improbable suppositions M. I shall observe your Commands and shall give you as short an account as I can of this transaction First therefore I desire you to take notice that after Simon Monâ—fort and the rest of the Barons of his Faction had taken King Hen. III. and Richard Earl of Cornwall the King's Brother with many other of the Nobility Prisoners at the Battle of Lewes He carried them about with Him till they had taken in all the strong Forts and Castles of the Land and when this was done Mat. Paris tells us that calling together at London the Bishops Earls and Barons of that Faction which so seditiously held their King Prisoner they began to set up a Committee for the Government of the Kingdom consisting of Twelve Lords who were chosen out of the whole Community or Body of the Baronage without whose advice and consent or at least of Three of them no affairs in the King's Houshould or in the Kingdom should be transacted and to these Ordinances the King and his Son were forced to agree and though the Record of this Agreement recites that this Ordinance was made at London by the consent goodâ—liking and Command of the King and also of the Prelates Barons and of the Community there present yet I am not yet convinc'd that by the word Communitas in the Latin Record is to be understood the Commons but the Community of the whole Kingdom since this Agreement is Signed only by some great Earls and Barons and no Commoner witness to it but the Mayor of London whom your self will grant was no Parliament Man After which Simon Montfort the better to settle himself in his Usurpt Power and in those Lands and Castles which himself and those of his Faction had unjustly wrested from Prince Edward who was now also a Prisoner having delivered himself as a Hostage for the Performance of this forc'd Peace they in the first place sent out Writs in the King's Name unto divers Bishops Abbots and Priors and to such of the Noblemen as were of their own Party to appear at Westminster on the Octaves of St. Hillary next ensuing and the Doctor hath given us a Copy of the Writ of Summons to the Bishop of Durham as it is found in the Close Rolls of the 49th of this King and at the end of it it is thus recited â—eodem moâ—o Mandatum est Episcopo Carleol As also to divers Bishops and Abbots all of their own Party and Faction there being above an Hundred Abbots and Priors then Summoned more than ever were I believe before or since and then follows a short
Council of all the Layety were not summoned at all and so Vice versa the Common Council of the Kingdom often met when the Synod of the Clergy was not convened as appears by the most ancient Writs of Summons to the Bishops we have left us as particularly The first Writ of this kind that is upon the Rolls viz. That for the Bishops which Mr. Prin has Printed in the First Part of his Parliamentary Register in the 6th of K. Iohn and which I have cited from the Drs. Answer against Mr. P. at our last Meeting in which Writ tho' I grant there is a Clause for Summoning the Abbots and Conventual Priors yet there is none for the inferior Clergy But in the next Writ which the same Authors have likewise Published viz. That to the Archbishops of York there there is no Clause at all for Summoning any of the Clergy as such tho' it is true there is underneath an Eodem modo scribitur omnibus Episcopis Abbatibus c. Comitibus Baronibus which shews that this Writ was not to Summon them in their Spiritual but Temporal Capacities So likewise in the next Writ of Summons to Parliament we have left us on the Roll which is cited in Mr. Selden's Titles of Honour as also in the same Parliamentary Register and in Dr. B. against Mr. P. viz. That of the 49th of Henry the Third to the Bishop of Duresme without any Clause of Summons to the Clergy whether Abbots or others So likewise in the next Writ of Summons that is left us viz. That of the 23d of Edward the First Published also by Mr. Prin to the Archbishop of Canterbury in which there is no Clause of Summoning any of the Clergy and tho' there immediately follows another Writ of the 23d of this King in which I grant there is this Clause of Praemunientes Priorem c. viz. The Prior Chapter and other of the Clergy of his Diocess to appear in Parliament yet that they were no necessary part of it but only of the Convocation appears by the rest of the Writs of Summons to Bishops which Mr. Prin has also given us in that Chapter all which if you please to peruse you will find that in near 200 Writs to Parliaments or great Councils the Clause of Praemunientes Clerum is to be found in scarce half of them which shews that the summoning or omitting them depended wholly upon the King's Pleasure and so were no constituent part of the great Council or Parliament as you suppose they were under the first Norman Kings for then sure they would not have been omitted to have been constantly Summoned in all Parliaments as well as the Bishops and Abbots But to come to your next Argument from the numerousness of these Assemblies which you say could not be properly called Numerosa or Infinita Multitudo whereas all the Tenants in Capite as well Ecclesiasticks as Lay-men did not amount in all to 800 there may be an allowance made for this to the Monkish way of Writing of those times who might call such a great or more than ordinary Assembly of the Clergy and Tenants in Capite an innumerable or infinite Multitude when indeed they were but few more than our Lords and Commons are at this day F. I pray Sir give me leave to Answer what you already said before you proceed any farther because what I have to reply to it will be pretty long in the first place you cannot with any reason if you better consider of it deny that the Clergy as well the Superior as Inferior did before your Conquest as well as long after make but one Assembly or Body of a General Council tho' sitting in several Places as the Lords and Commons do at this day for the words in the Old Book of Ely are Adunato Concilio Cleri Populi which is to be rendred the Council of the Clergy and Layety being united and joyned together as I already shewed this word Adunato does always signifie as also by the Confirmation of that Charter of King William's to the Abby of Westminster and to which tho' a Matter of meer Temporal Concernment all the Clergy as well as Layety gave their joynt Consents as appears by the Conclusion of that Charter as also to that of K. Stephen but now cited which they could never have done had they not then made a part of the same General Council or Assembly Having proved to you that the inferior Clergy did anciently make a part of the General or Common Council of the whole Nation I shall now proceed to answer your Objection 'T is true that for a great part of some Kings Reigns for want of the Writs of Summons to the Superior as well as to the Inferior Clergy we cannot certainly tell tho' we may presume it from the general words of the Historians whether the Inferior Clergy were Summoned or not yet this I think I may boldly averâ— that wherever any ancient Author makes mention of the Clerus and Populus in general being present at any such Common Council it must necessarily mean not the Bishops and Abbots or the Superior Clergy alone or the great Lords and Tenants in Capite onely but those and the Representatives of the whole Nation both Clergy and Layety taken together as I think I have sufficiently made out Nor is your Objection considerable from that writ of the 6 th of King Iohn that no Inferiour Clergy were summoned because onely the Abbots and Priors are mentioned at the end of it to this I answer that granting it to be a writ of Summons to a Common Council of the Kingdom which is not yet proved the omission of the Inferiour Clergies being summoned is no cogent Argument to prove they were not there since for ought as you and I know there might be other writs issued to the Inferiour Clergy distinct from those to the Bishops and Abbots Which last used to have distinct writs to each by themselves and I may as well suppose these writs to be lost as you do that all the general writs to the smaller Tenants in Capite who were no Barons and yet were to be all summoned according to King Iohns Charter are all lost and as for the Abbots and Priors mentioned at the end of this writ of King Iohns they were such as held onely in Capite or else such as did not if the former this might be onely a Council of Tenants in Capite and none other of which I grant there were many held in those times upon occasion of Wars Scurages and other matters but if by these Conventual Abbots and Prioâ—â— summoned by this writ you will mean all Abbots and Priors of whatever Tenure then it appears plainly that this great Council consisted of many other Ecclesiasticks than what held in Capite and if so why might not the Inferiour Clergy as well make a part of it But as for your next Authority the writ
translates the Clergy and Commons together with the Nobility being summoned And in 1 of Richard I. R. Hoveden also tells us of a great Council held at Pipewel Abby in Northamptonshire where the Archbishop of Canterbury produced a Charter of King William I. Coram Rege Vniversis Episcopis Clero Populo And an ancient Charter of primo of King Iohn now in the Archbishop of Canterbury's Library entituled Charta Moderationis seod magni sigilli recites the said King to have been Crowned Mediante tam Cleri quam Populi unanimi consensu savore and tho the rest of his Reign was Turbulent yet the Author of the Manuscript Eulogium quoted by Mr. Selden in his Titles of Honour mentions a great Council at London in the 16 th Year of King Iohn where the Archbishop of Canterbury was present Cum toto Clero tota secta Laicali i. e. says Dr. Heylin in the same place The Clergy of both Ranks and Orders with all the Laity called here Secta Laicalis and the Lords and Commons had then their places in Parliament and the Dr. proceeds thus and in possession of this Right the Clergy stood when Magna Charta was set forth by King Henry the 3 d. Wherein the Freedom Rights and Priviledges of the Church of England of which this evidently was one was Confirmed to them i. e. the whole Clergy in general I have here shewed you what Dr. Heylins sense was to let you see that a Person of great Learning and a high Churchman thought it no Heresie to be of our Opinion and to maintain as he does all along in that Chapter that the Inferior Clergy and the Commons were a Constituent Part of the Common Council or Parliament long before the 49 th of Henry 3 d and that the Inferior Clergy continued to be so till the Reign of Henry the 4 th at least But that their Consents was also anciently asked in the making of Laws we need go no farther than the Authority I have now given you from the Continuation of Florence of Worcester And farther that they were once a part of this great Council or Parliament besides the Testimony of the Modus tenendi Parliamentum who tho he be exploded as an ancient Author yet certainly is a good Witness for his own time viz. that of Edward the third where the Procuratores Cleri are reckoned among the Constituent Members or States of Parliament which is also confirmed by the two first Writs of Summons we have left us on the Rolls viz. the 23 d of Edward I. where in this Clause of Praemunâ—entes Clerum is particularly exprest which pray read from your Drs. Answer to Mr. P. Praemunientes Priorem Capitulum Ecclesiae vestrae Archidiaconos totumque Clerum vestrae Diocaesis facientes quod iidem Prior Archidiac in propriis Personis suis dictum Capitulum per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulis Clero habentes una vobiscum intersint modis omnibus tunc ibidem ad tractandum ordinandum faciendum nobiscum cum coeteris Praelatis Proceribus aliis Incolis Regni nostri qualiter sit hujusae modi periculis obviandum viz. The dangers in the Writ mentioned to be threatned from France and that this was not the first time this Clause of Praemunientes was inserted in the Writs of Summons to Bishops might be easily proved had we all the Writs of Summons before the 23 d of Edward I. as well as since But we may hence observe that the Inferior Clergy are not onely summoned to treat with the Prelates but are as well as they here authorised to Treat Ordain and Act with them and the Lords and Knights Citizens and Burgesses for so your Dr. himself here in the Margin translates Aliis Incolis Regni and how they could thus Consult and Act with them if they had not beeâ— then as well as the Prelates a part of the same Body of the great Council or Parliament of the Kingdom I confess surpasses my Capacity to understand nor is this Clause found in this Writ alone but is also in most other Writs of the Bishops Summons to Parliament as low as our own times and that these Writs were not to Convocation but Parliament appears in Pryns Parliament Register plainly by the Letters of Procuration made by the Prior and Chapter of Bath to William Swynham and Iohn de Merston appointing them to appear and Act for them as their Lawful Procurators in the Parliament summoned Ann. Dom. 1299. being the 27 th of Edward I. which is of a different form from another Letter of Procuration of the same Prior and Chapter Ann. Dom. 1295. 231. Edward I. to their Procurators therein named to act for them in the Convocation then summoned at Westminster the same difference is also observed in all the Writs of Summons to Convocation different from those whereby the same Persons are summoned to Parliament the former being directed onely to the two Archbishops or their Vicar Generals to Summon all the Bishops Abbots Priors and Clergy of their respective Provinces without any particular Writs issued to any other Bishops Abbots Priors or Clergy-men as in Summons to great Councils or Parliaments wherein there are commonly particular Orders to the Bishop to warn all the Inferior Clergy in the manner but now mentioned as Mr. Pryn very well observes in his first part of his said Parliamentary Register where you may see there is a Writ of Summons to Parliament of the 31 st Edward 3 d to the Archbishop of Canterbury reciting that he intended a Parliament for divers arduous and urgent Businesses concerning Himself and Crown and the necessary Defence of the Kingdom and Church of England And then proceeds thus Et quia Negotia praedicta perquam Ardua sine Maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni c. and therefore it behoved him to Summon the said Clergy Great Men and Commons and then requires him to summon all the Bishops Abbots and Deans and Priors and Arch-deacons to appear personally and the rest of the Clergy by two Procurators with full Power ad tractandum consulendum super praemissis una vobiscum ad consentiendum Illis quae tunc ibidem super dictis negotiis divina savente Clementia contigerit ordinari M. But what can you say to their being omitted to be summoâ—ed in divers Writs to Parliament as appears in Pryns Register you now cited and from whence himself has there made this Observation That there is no Clause of Praemunientes c. in any Writs of Summons to Councils of State but onely to Parliaments and that not always but at the Kings Pleasure Which shews plainly that tho they were sometimes summoned as a part yet were certainly no Essential Constituent part of this general Council since they were omitted in so many of them
to the Pope But Anno 40 Edw. III. when the Pope demanded the Arrears of this Tribute from the King the Prelates Dukes Count Barons and Commons upon their full deliberation in Parliament resolved with one accord that neither the King nor any other could put the Realm nor People thereof into such subjection sanz assent de eux without their assent viz. as well of the Commons as of the Lords and that it appeared by many Evidences that if he had so done it was done sanz lour assent and contrary to his Coronation Oath c. Now what can be more plain than that above three hundred years ago there was not the least dispute that the Commons of England of which the Citizens and Burgesses were then undoubtedly a part ought to have been present in the Commune Concilium Regni or Parliament of King Iohn's Reign and to have assented to that King's Resignation to make it legal and valid as well as the Prelates Earls and Barons M. As for this Argument I need trouble my self no further than to give you the Dr's Answer in his own words viz. All that the Resolution of this Parliament in this case proves is that King Iohn could not subject himself his Realm or People without their Assent but proves not who they were that in such Cases at that time gave or denied their Assent or how they did it or whether 153 years before this Resolution the Commons were represented by Knights Citizens and Burgesâ—es as at this day The Prelates and Barons gave their Answer first that such a Subjection could not be made without their Assent and then the Commons were asked what their Thoughts were and they answered in the same manner and in the same Words the Barons had done and when they answer altogether They do it in the same form of Speech conceived first by the Barons without any Consideration whether the Commons were the same Body of Men at the time of Executing the Charter of King Iohns Subjection c. as at that present or no. F. I must freely tell you I am not at all satisfied with this Reply of the Drs. for if there is no heed to be taken of the House of Commons Answer to the Pope given in so solemn a manner as this was there is no Credit to be given to any thing they could say if they are once suppos'd to speak like Parrots by Roat and only as they were taught by the Lords without any Consideration of the Truth or Falshood of what they averred And tho the first Proposal of this matter was by the King to the Lords yet the Pope then threatning to Excommunicate the King and put the whole Realm under an Interdict it was certainly the Interest as well of the Commons as the Lords to avoid the blow by a wary and true Answer to the Popes demands for had their Answer been so idle and frivolous as you would make it it had been advantage enough for the Pope to have return'd in answer to this Letter had what the Dr. alledges been true that the upstart House of Commons had nothing to do to meddle or treat of any such matter since they were none of the parties to the agreement nor one of the Estates at that time when King Iohn resign'd his Crown and made himself and Kingdom Tributary to his Holinesses Predecessours nor was the space of an hundred fifty three years from the time of King Iohn to the 40th of Edward the 3d so far beyond the memory of man as that so memorable a Transaction could not be well known to the Pope as well as to the House of Commons then in being since the making them a 3d Estate fell out but in the time of all their Grandfathers at farthest so that it is scarce possible that the memory of so remarkable a Transaction of which the whole World then rang should be lost in two or three Generations But I shall now proceed to shew you that as it was the express Judgment both of the Lords and Commons that King Iohn could not make the Kingdom Tributary to the Pope without their Consent in Parliament so was it the Judgment also of the whole House of Commons in the 2d of Henry the 5th and admitted by that Noble Prince and the House of Lords that they had ever been a member of Parliament and that no Statute or Law could be made without their Assent as appears by a Petition or Protestation presented by the said Commons to the King in Parliament a Copy of which I shall now read to you as far as it concerns the matter in Question Our Soveraign Lord your humble and trewe Lieges that ben come for the Comune of your Lond bysechin unto your riht twissness that soo as hit hath ever be thair Libertie and Freedom that there should noo Statute noo Law be made of less than they yaf thereto their Assent considering that the Comune of your Lond the which that is and ever hath be a member of your Parlement been as well Aslentirs as Petitioâ—ers that fro this time forward by Compleint of the Comune of eny Mischâ—ef asking remedy by Mouth of their Speaker for the Commons outher else by Petition written that there never be no Law made thereupon and ingressed as Statute and Law neither by Additions neither by Diâ—â—inutions by no manner of Term â—e Terms the which that should change the Sentence and the intent asked by the Speakers Mouth or the Petitions by foresaid â—even up in 〈◊〉 by the foresaid without Assent of the foresaid Comune c. This Petition is so plain that it needs no Comment therefore pray tell me what you think of it M. In the first place give me leave to tell you that I do not find at all by the Kings Answer to this Petition that the King allowed the matter of Fact therein set forth to be true but rather the contrary as you may see by the Answer it self in these words the King of his Grace especial granteth that fro hensforth nothing be enacted to the Petâ—â—ions of his Comune that be contrary of their asking whereby they should be bound without their Assent saving alway to our Leige i. e. Royal Lord his Real Prerogatys to grant and deny what him lust of their Petitions and askings aforesaid And I shall farther give you the Drs. Answer to this Argument which is to this Effect The design of this Petition was not to set forth the Antiquity of their Existence but their Right that nothing might be enacted without their Assent contrary to their intent and liking and to shew that it was never done since the Commons were a third Estate or as they say a Member of Parliament therefore 't is needless to prove that which no Body denies that the Assent of the Commons was then and is now required to the making of all Statutes and Laws but pray give me leave to ask you with the Dr
to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
destrain for the Escuage so Assessed by Parliament or in some Cases they may have the King 's Writ directed to the Sheriffs of the same County c. to Lâ—vy such Escuages for them as appears by the Register But if either King Iohn or King Hen. III. granted Writs to levy Escuage upon the under-Tenants of the great Lords and Tenants in Capite without their own Consent in Parliament this ought to be no more cited as a Precedent than any other illegal Acts committed by those Kings since as our Records and Histories tell us it was such illegal Proceedings which were the cause of the Barons Wars And it is expresly against the words of this Charter of King Iohn which you have now quoted viz. nullum Seâ—â—agium vel Auxilium pâ—nam in Regno nostro nisi per Commune Consilium Regni nostri So that notwithstanding all you have yet said it doth not appear to me how Scutage when given as a Tax upon Knights â—ees alone and to be levyed not only from the Tenants in Capite themselves but their under-Tenants as also from the Tenants of them who though they held in Capite yet held not by Knights Service such as were the Tenants in Peâ—â—y Serjeanty and those who held of the King in Chief as of several Honors and not of hiâ— Crown as in Capite could ever charge such Tenants without their Consentâ— given either by themselves or their lawful Representatives much less could your Tenants in Capite Tax or Charge such as did not hold in Capite themselves viz. Those Abbots and Priors who held Lands in Right of their Monasteries in Franc Almâ—igne and who together with their Tenants made at least two third parts of all the Abby-Lands in England as also Tax'd those who not holding by Knights Service at all but by Tenure in Socage or Fee Farm did not hold their Lands as Knights Fees and therefore could never be Taxed by your Tenants in Capite for so many Knights Fees or parts thereof And Braecton who lived at this very time has distinguish'd to no purpose between those Common Services which all Tenants owe their Lords and the general Taxes or Charges imposed by the Common Consent of the whole Kingdom The words are very remarkable pray read them Sunt quaedam Communâ—s praestationes quae servâ—cis non diâ—uâ—iâ—â— nec de consuâ—tudine venâ—um nisi cum necessitaâ— intervenerit vel cum Rex venorit sicut sunt Hidagia Corraagâ—â— Carvagia alia plura de necessitate ex consensu Communi torius Regni introducta quae ad Dominum feâ—di non pertinent And therefore I cannot see any Reason why the great Lords and Tenants in Capite should ever have Power to lay a general Tax upon the whole Kingdom not the tenth part of which did then hold of them by Knights Service So that nothing seems plainer to me than that there was us our ancient Historians tell us a distinct Court which was held anciently three times every year viz. at Easter Whitsuntide and Christmas and then the King was attended by all the Bishops great Lords and other Tenants in Capite and this was called Curis or Concilium Regis and if any difference of Right did arise between the King and his Tenants or between Tenant and Tenant here it was to be heard and determined and many other things were there uâ—ted and done in relation to the King's Barons or Tenants in Capite only But under Favour this was not the Commune Consillum Regni or Parliament as we now call it for the King held this Court ex More or by Custom without any Summons as Simon of Durham and Florence of Worcester and divers other Writers of the Lives of our first Norman Kings do shew us But when they take notice of the meeting of the Commune Consilium totius Regni their Expressions after and then they say that Rex ascivi as it is in Ordericus Vitalis Ex praecepro Regn convenerunt or as Eâ—â—merus Rex Sanctione sua adunavit And Mat. Westminster of later times takes notice of this Union or Meeting of this Câ—ria or Assembly of Tenants in Capit together with the Great Council or Parliament in his History of Hen. III. Where relating how the King again confirmed the Great Charter in a Parliament Anno Domini 1252. being the 37 th of his Reign He hath these words In quindenâ— Paschae Adunato Magno Parliamento c. So that it seems plain to me that this uniting of the great or whole Parliament must be understood the Conjunction of both Councils together and therefore when this Council of Tenants in Capite that thus met ex more took upon them assess Escuage and transact other matters of consequence without the consent of the major part of the Tenants in Capite who often failed to appear at these Courts or Assemblâ—es held ex more it was then and not before expresly provided by this Charter of King Iohn that Escuage should not be assessed for the future without Summons or Notice given of it to all the Tenants in Capite who had right to be there M. I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite distinct from the Parliament and which met ex more and that these were the Persons who were by this Charter to Assemble for the Assessing of Escuage which is a meer precarious Hypothesis nor can you or those from whom you borrow this Notion make it out from any good Authority for I have already proved that the Barones Regis Regni were the same Persons and that usually the Barons or Tenants in Capite of what Quality soever did repair to the King's Court at Christmas Easter and Whitsunday doth appear to have been the Custom of those times from the Testimonies of our ancient Historians But to prove by examples out of the Authors you your self have made use of that the Bishops great Barons and Tenants in Capite were then alone the great Council of the Kingdom pray read Eadmerus speaking thus Celebratum est Concilium in Ecclesiâ Beati Peiri in occidentali parâ—e juxta Lâ—nâ—inum sita Communi Consensâ—â— Episcoporum Abbatum Principum totius Regni buiâ— Conventui assuerunt Primates Regni utriuâ—que ondinis And at this Meeting were present the Prime Men of the whole Kingdom of both Orders in this Council the Bishops and Barons are called the Principal or Chief Men of the Kingdom yet these were all the King's Barons they all held of him in Capite and so did all the Chief Men of the Kingdom So likewise in another Meeting under this King Hen. â— when Arch-Bishop Anselm was to give his Answer to the King according â—o the Advice of the Bishops and chief Men of the Kingdom The same Author tells us of Anselm that in Pascha ad Curiam venit Communis Concilii vocem unam