SInce the Doctor thinks to flourish with some of his frivolous O­missions, like running his Sword through me after he had slain me in imagination; To shew that I am not quite killed, I shall venture to try the length of his new whetted Animad­verting Weapon, and give him a few home thrusts in exchange for his in­tended ones. Because I find him a gentle, and easie Foe, I shall advise him like a Friend,

[Page 2] Nor censure every thing as Imperti­nent, Against Jani, &c. p. 1. Ʋnintelligible, and Obscure, that's above the level of your understanding. For proof of his great understanding he taxes three Paragraphs of mine with Obscurity, Ib. p. 113. and 114. and that darkness which is in his own mind.

1. The first is,Jani, &c. p. 26. that the City of Lon­don being charged with a Tallage, their Common-Council dispute whether it were Tallagium, or Auxilium, which is there meant of voluntary aid, not due upon the account of their Houses being of of the Kings Demeasn, Quid, a new Para­graph. though indeed 'tis then shewn that they had several times before been talliated. Quid est quod in hâc Causâ defensionis egeat? I must needs say I take all this to be so plain that I know not which part I ought to add any light to. Is the diffe­rence between Tallage and a Voluntary Aid obscure? Or is it not well known that the Kings Demeasns only were tal­liated, and that the City having been talliated, 'twas in vain to urge that they paid only voluntary Aid?

But perhaps in the two next the ob­scurity may lye, and yet, by the Doctors Art of multiplying faults, they may [Page 3] make three obscure Paragraphs.

2. This explains that part of the Charter,He adds such to Cases, to render it obscure. Simili modo fiat de Civitate London, that is as in all Cases besides those excepted Escuage or Tallage should not be raised but by a Common-Council of the Kingdom,Jani, &c. p. 26. that is of all the per­sons concerned to pay; so for the City of London, unless the Aid was ordered in Common-Council, wherein they and all other Tenants in chief were assembled, none should be laid upon any Citizens but by the consent of their own Common-Coun­cil, Na. So if a sum in gross were laid upon them. and if the Ordinance were only in general Terms, that all the Kings De­measns should be talliated, the propor­tions payable there should be agreed by the Common-Council of the City.

This consists of two parts; First, That where there was not the consent of a Common-Council of all the Te­nents in chief, the Citizens might of themselves give a Tallage, which is not in dispute between us, but is with admirable ingenuity turned into an assertion,Viz. To such pay­ment as Tallage. that Cities and Burroughs were not taxed or assessed towards any payments, but by their own Common-Councils, (which is not to be inferred [Page 4] from the priviledge of one City, sup­pose it were so for London, nor can be gathered from my words, which yield that even London might be Taxt or Assessed by the consent of the Common-Council of Tenents) or that they, Against Jani, &c. p. 113. as part of the Common-Council of the Land taxed themselves, which is true; but no man of sense can understand that to be the meaning of this part of the Obscure Paragraph, but that something farther was intended.

2. The second I need not explain since he understands, for all his affected ignorance, Indeed he would take in more places. that after a Tax was impos­ed upon the City of London the Inhabi­tants (or those who composed its Council) met to proportion it, so as it might be paid with as much equality as could be.Na. the King did perhaps re­quire a certain sum after a general Ordinance made by the Council of Tenents for a Ra­tionabile auxilium.

This he yields to my hand, that they always did if they would, it seems con­vinced by that Record, which shews that when the Council of the City would not agree to the Sum demanded by the King, 'twas de voluntate omnium Baronum nostrorum Civitatis ejusdem, that the King talliated his Tenents per se, Jani, &c. p. 26. or per Capita, so much upon every head.

[Page 5] 3. This clears the last Paragraph which I need not recite, it having no meaning differing from the Record, but if my Record give not sufficient light and strength he, I thank him, according to his usual Curtesie cites one clear enough.Dr. p. 115.

Et cum praedicti Cives noluissent in­trare finem praedict' trium mille marca­rum praedicti Thes. & alii voluerint assidere illud Tal. per Capita.

So that till the Citizens refused the the Sum in gross, the King did not Talliate each man in particular.

But I am told that this is nothing to my purpose, 'tis strange that he who blames me in other places for not quot­ing more than is for my purpose, when nothing behind makes against me, should now tax me for not skipping over any part of that Clause which 'twas needful to take and explain entire.

To clear up his understanding if possible, though I thought to have left this Task, I will obviate an objection which such as our Answerer may make, that 'tis obscure how the Record of the Common-Council of London's concern­ing its self about the Charge laid upon [Page 6] the City should explain that part of the Charter which sayes Simili modo fiat de Civitate London, but surely pra­ctice is a good Interpreter of a Law, and there is this further evidence that here is provision for the power of the Common-Council of the City, because that holding in Capite, and being men­tioned distinct from all the other Te­nents there named in general, it must be for something else, besides that for which 'tis joyned with the other Te­nents.

But Excedimus tenebris in crepuscu­lum, from this obscurity and darkness to be felt by the Doctors groaping hand, we come to broad day light.

When in the 39th. H. 3. Provisum fuit per Consilium Regis apud Merton,Against Jani, p. 115. & 117. that he should talliate his Demeasns, though this was after King John's Charter, which was intended to restrain the King from levying publick Taxes with­out publick consent; yet it seems to be plain by the Record that the King by the advice of his Privy Council taxed the City of London, even with­out the consent of the Common Coun­cil of his immediate Tenents, whom [Page 7] he makes the Common-Council for all manner of Aid and Escuage.

But it may be said, a Tallage was no publick Tax, though the Tax here spoke of, is made no more publick than the consent required to charge it; Which consent according to him, was from immediate Tenents only, so that Tallage might be a publick Tax as well as any other. And to be sure Scutagium concerning the Kings Tenents only, and the Cases in which the King reserv'd to himself power of taxing without publick consent in his sense, relating only to them; the Tax because of te­nure must be provided for, as well as other, if any other were there meant by Auxilium, vel Scutagium.

Nay, he owns expresly, that accord­ing to the Law in King John's Charter, London and other Cities and Burghs were to be Assessed and Taxed by the Common-Council of the Kingdom. p. 117. & 118. And he makes a reason of that provi­sion, to be the usage in the time of H. 2. for the King to Talliate, or Tax them without such a Council.

The Doctor has doubtless the most particular convincing way of reasoning [Page 8] of any man, he says that Law in King John's Charter intended to restrain the King from levying of publick Taxes without publick consent: And the rea­son of this Artice in King John's Char­ter is Argument sufficient to prove it: for, mark the weighty reason, H. the Third after this was granted, and Edw. 1st. taxed their Demeasns through England, though not the whole King­dom by Advice and Consent of their Privy-Councils only until the Stat' de Tallagio non concedendo, That is (as Tallage is confest to be, a Publick Tax) because some of King John's Successors Tax't their Demeasns without publick consent. Therefore 'twas provided in King John's time, by way of Prophesy, that no publick Tax, Aid, or Escuage should be raised without publick con­sent.

So that what was done after, was a moral cause, or occasion of what pre­ceded.

'Twill be said, that the thing that the Doctor went to prove was, that the Common-Council mentioned in the Charter was the Great and Common-Council of the Kingdom, to all intents [Page 9] and purposes. Not that the King was restrained from levying a publick Tax without the consent of the Great Coun­cil. But surely when he goes to give the reason why the Charter must be taken in such a sense, we are to expect the proof of that, not of something else, quitting the thing to be proved.

If I can understand his dark mean­ing, he was proving that Nullum Scu­tagium, &c. intended to restrain the King from levying publick Taxes with­out publick Consent. That is (to ex­plain what he very obscurely drives at,) the restraint was only from Taxing the whole Kingdom; not from Taxing his Tenants in Chief. And the reason of this Article,p. 118. viz. as taken in this sense, is, that several times after this Charter was granted, Hen. 3. and Edw. 1. Taxed their Demeasns through England, though not the whole Kingdom, by Advice and Consent of their Privy-Councils only, until the Statute De tallagio non concedendo was made 34 E. 1. And both Richard the First and King John had Taxed the whole Kingdom without common Assent, before the grant of Magna Charta. And when [Page 10] he has made good the Premises in this Argument for the meaning of the Ar­ticle, which will be ad graecas Calendas, then, he may conclude that this Article intended to restrain the King,Na. he should have ad­ded only. only from levying of publick Taxes with­out publick Consent, not to provide about Escuage, Nullum Scutagi­um, &c. or Tallage, which none but his immediate Tenants were liable to. And from hence when prov'd, we might with some more colour and co­herence raise the Consequence that the Common-Council mentioned in King John's Charter was the Great and Com­mon-Council of the Kingdom to all in­tents and purposes. But how that should appear from the mention of Aid, and Escuage only, will be a Question.

'Tis by him observ'd of Richard the First, Accepit de unaquâque carucatâ terrae totius Angliae sex solidos.

But what proof is there from the word accepit, or the collecting of a Tax, ex praecepto Regis, that he took it without publick consent?Bracton Lib. 1. cap. 16. I am sure Bracton, as good an Author as the Hi­storian whom he Vouches, tells us Car­vage, and such this was, could never be raised but Consensu communi totius regni.

[Page 11] But if the King in his Privy-Council might Tax the Kingdom its self, till the making King John's Charter, and was restrain'd then, I wonder our Re­verend Author has made the Consti­tution of the House of Lords, that is according to him, the whole great Council, to have been no earlier than the 49th. of H. 3.

And unless such a Council as is men­tioned in that Charter were Consti­tuted before,Nay some­times he Argues that it was not before, p. 56. how comes it to pass that the Clerus and Populus, which were of the Kings Council for making Laws, and giving Taxes, were not till 17. Jo. confin'd to such of them as were of the Privy-Council, as well as Communitas populi, after Magnates was meant of such people as were Magnates, and Mi­lites, p. 110. & liberè tenentes, besides Barons, were the Tenents in Capite, 112. who by their Acts oblig'd all that held of them by Knights Service:113. that is all the Mi­lites, but not the liberè tenentes.

We are taught that in the 6 of King John Tenents in Capite only,Against Jani, &c. p. 125, 126, 127. provided that every nine Knights should find a tenth for the defence of the Kingdom, and that they who were to find them [Page 12] were all Tenents in Military Service. Though the Record shews, that be­sides the Miles vel Serviens, Alius terram tenens was Charged with this. And he vouchsafes not to take notice of my Argument, that every Knight be­ing bound by his tenure to find a man; if this had not extended to all that had to the value of a Knights Fee,Jani, &c. p. 225. though not held by Knights Service, it would have been an abatement of the Services due, and a weakning of the Kingdom.

Besides, admit that Tenents in Ca­pite only laid this Charge, and only Tenents by Knights Service were bound by it, here is such a Commune Con­cilium of Tenents, as I say King John's Charter Exhibits, and no Charge laid by them upon others. Whereas he should have prov'd that they did oblige others without their consent.

But suppose Tenents only were Charged, why might not the Charge have been laid by Omnes fideles in my sense, as we find Omnes de Regno, taxing Knights Fees only?

The Doctor in his Margin gives us an admirable nota, p. 119. that Liberi were [Page 13] Tenants in Military Service, or Gentle­men, Rustici Socagers, possessors or Freeholders in Socages only, which is as much as to say that Freeholders were not Freemen, unless they held in Military Service, and yet a Tenement, or Possession neither added to,Glos. p. 10. or detracted from the person of any man, if free or bond before.

But surely Mr. Professor has some colourable proof for his remark here: For that let others judge.

Hoveden acquaints us with the man­ner of collecting a Carvage in the ninth of Richard the First, which was, that in every County the King appointed one Clergyman, and one Knight, who with the Sheriff of the County to which they were sent,Galls Mi­lites. and lawful Knights chose, and sworn to execute this business faithfully, Fecerunt venire coram se senescalos Baronum istius co­mitatûs, & de qualibet villâ Dominum vel Ballivum villae & prepositum cum quatuor legalibus hominibus villae, sivae liberis, sive rusticis, who were to swear how many Plough Lands there were in every Town.

[Page 14] If here liberi, and rustici are not meant for two denominations of the same sort of men, that is ordinary Free­holders, I will leave him to fight it out with Hoveden, since he himself is di­rectly contrary to the old Munk; Ho­veden shews us that these Socagers were legales homines, such as chose Juries, and serv'd on Juries themselves, Against Mr. Petyt, p. 36. &c. but our new light is positive that Tenants in Military Service were the only Free­men, and the only legal men. Thus I have done right to his Omissions,So Against Jani. p. 36. passing by nothing which has not re­ceived justice before, and shall add some confirmations of what I have taken leave to assert in other places.

I had affirmed for one reason why the Doctor could have small assistance from Domesday Book, p. 78. that the Titles whereby men enjoy'd their Estates are seldom mentioned there. And if I find by Record a whole County in the Doctors sense, that is all the Lands of the County enjoy'd by descent from before the imaginary Conquest; What will he say in justification of his whymsies upon the Conquest, and the authority he would fetch for it from Domesday Book?

[Page 15] He may please to consider, and give a Categorical Answer to this memo­rable Record.

IN placito inter Regem & priorem Ecclesiae de Coventre de annua pensione uni Clericorum Regis,Placita co­ram Rege Hill. Anno 14 R. 2. Rot. 50▪ warw. ratione nove crea­tionis ejusdem prioris quousque, &c. prior venit & defendit vim & injuriam & quicquid est in contemptu domini Regis, &c. non cognovit Ecclesiam suam beatae Mariae de Coventre fore Ecclesiam Ca­thedralem nec ipsum priorem tenere ali­quid de domino Rege per Baroniam prout pro domino Rege in narratione sua pro­ponitur. Et dicit quod tenet prioratum praedictum ex fundatione cujusdam Leo­frici quondam Comitis Cestriae qui prio­ratum praedictum fundavit tempore san­cti Edwardi dudum Regis Angliae pro­genitoris domini Regis nunc per Cantam suam in haec verba.

Anno dominice incarnationis 1043. Ego Leofricus Comes Cestriae Consilio & assensu Regis qui literas suas infrascriptas sub sigillo misit & testimonio aliorum re­ligiosorum virorum tam laicorum quam Clericorum Ecclesiam Coventre dedicari feci, in honore dei & Ecclesiae sanctae [Page 16] Mariae genitricis ejus, & sancti Petri Apostoli & sancte Osburge Virginis, & omnium sanctorum; Has igitur viginti quatuor villas eidem Ecclesiae attribui, ad servitium dei & ad victum & vesti­tum Abbatis & Monachorum in eodem loco deo servientium, videlicet Honiton Newenham Chaldeleshunt Ichenton Ʋl­ston Soucham Grenesburgh Burthenburgh Mersten juxta Avonam Hardewick Was­perton Creastorton Sotham Rugton di­midium Sowe Merston in Gloucestriae pro­vincia Salewarpe in Wigorniensi Eton juxta amnem qui dicitur dee in Cestriae provincia Keldesbye & Windwyk in Hamptoniensi provincia Borbach Bare­well Scrapstofte Pakinton & Potteres Merston in Leycestrensi provincia. Has autem terras dedi huic Monasterio cum Soca Saca cum telonio & theme cum liber­tatibus & omnibus consuetudinibus vbi­que Sicut a Rege Edwardo melius un­quam tenui. Cum hiis omnibus Rex Ed­wardus & ego libertates huic Monasterio dedimus, ita ut Abbas ejusdem loci Soli Regi Angliae sit Subjectus.

Ibidem recitatur Charta ejusdem Regis Edwardi quas donationes & concessiones diversi alii Reges confirmaverunt & di­cit [Page 17] quod postea per processum temporis nomen Abbatiae praedictae divertebatur in nomen prioratus, eo quod Leofwinus ad tunc ibidem creatus fuit in Episcopum Cestriae & ordinavit per assensum Mona­chorum ibidem quod Abbatia praedicta ex tunc foret prioratus & quod Superio­res ejusdem Ecclesiae forent priores suc­cessive in perpetuum, & dicit quod de ipso Leofrico, quia obiit sine herede de corpore suo descendente advocatio Ec­clesie predicte tempore Willielm' Con­quest' Angliae cuidam Hugoni Comiti Cestriae ut Consanguineo & heredi ipsius Leofrici, Na. this is the Hugh to whom he ima­gines that William, gave all the Lands of the County of Chester. viz. Filio Erminelde sororis ejusdem Leofrici & de ipso Hugone cui­dam Ricardo ut filio & heredi & de ipso Ricardo cuidam Ranulpho ut Consangui­neo & heredi, viz. filio Matildis sororis praedicti Hugonis & de ipso Ranulpho cuidam Ranulpho ut filio & heredi & de ipso Ranulpho filio Ranulphi quia obiit sine herede de corpore suo descendente advocatio praedicta simul cum Comitatu Cestre & Huntingdon & aliis diversis Castris Maneriis terris & tenementis cum pertinentis in Anglia & Wallia qui­busdam Matildae Mabilliae Ceciliae & Margeriae ut sororibus & heredibus pre­dicti [Page 18] Ranulphi inter quas propertia facta fuit de predictis Comitatibus advocatio­nibus & Castris Maneriis terris & tene­mentis cum pertinentiis supradictis. Et predicta advocatio Simul cum toto pre­dicto Comitatu Cestriae cum pertinentiis allocata fuit predicte Matilde pro pro­parte sua in allocationem diversorum aliorum Castrorum Maneriorum terrarum & tenementorum cum pertinentiis prae­dictis Mabilliae Ceciliae & Margeriae se­peratim allocatorum & de ipsa Matilda descendebant predicta advocatio simul cum praedicto Comitatu Cestriae cum per­tinentiis post propertiam predictam cui­dam Johanni Scot ut filio & heredi prae­dictae Matildae Qui quidem Johannes Scot advocationem praedictam simul cum praedicto Comitatu Cestriae cum pertinen­tiis dedit Henrico quondam Regi Angliae filio Regis Johannis & heredibus suis in perpetuum, &c. praedictus prior sine die.

This was a Judgment upon solemn Debate and Tryal, and it cannot be believed but the Judges, and Kings Council so many hundred years ago, knew as much of the right of the Con­quest [Page 19] as our Doctor can discover. 'Twill be said notwithstanding this Record, that Hugh had the Confirmation of his Kinsman the Conqueror.

Admit he had, he being his Kinsman would either thereby wheedle others in to the like acknowledgment of Wil­liams power; Or else having the Go­vernment of the County, would do this in complement to the supream Gover­nour.

But that such Confirmation as to the Lands he had there, and all appendants or appurtenances to them was wholly neeedless, appears in that the Title is laid only in descent, nor does it in the least appear that William either granted or confirm'd more than the Comitatus, Government, or Jurisdiction of it, or that more than that was held by the Sword, which the Doctor makes Te­nure in Capite. Let him shew how, by what manner of tenure his Land was held.

Not being aware that so great an Author as the Doctor would have con­demn'd for precarious, Against Jani, &c. p. 89. all that I think I have prov'd from the Records and Hi­stories which I cite for the foundation [Page 20] of my former Essay,Jani, &c. p. 264. viz. that till the 48. and 49th. H. 3. all Proprietors of Land came to the Great Council without exclusion.ib. p. 264. I had asserted that the probi homines, or bonae conversationis, came to the Great Councils (which in com­mon Intendment is meant of coming as Members) in their own persons,Against Jani, p 4. and when they agreed to it, which was no abridgment of their personal right, they came by Representation, and Election, and every one was there himself virtually by his Deputy, but they often met in vast bodies, and in capacious places, both in the Saxon times, and after Wil­liam the First obtained the Imperial Crown.

(1.) If you'l believe the Chair all this is precariously said,Against Jani, &c. p. 89. without Foun­dation or Authority; however 'tis gran­ted that I seem to back it with an in­stance, where I say, The whole body of Proprietors were assembled at Runemede between Stanes and Windsor, at the passing of King John's Charter.

The Doctor refers us to p. 106. and 107. of his pretended Answer to Mr. Petyt, to see what this Assembly was, and of whom it consisted; where he [Page 21] proves my Assertion, being all that he there shews is, that there was not time for Writs to issue to chuse any Repre­sentatives of the Commons, but not a word offer'd against their being there in their own Persons, having been got together expecting the Kings Answer to their Demands, who appointed a meeting at Runemede. Rot. Pat. 17. Joh. pars unica m. 13. n. 3. ib. m. 23. dorso. The Record saith there were Comites, & Barones, & li­beri homines totius regni, or according to that Expounder of more fallible Re­cord Ma. Paris, Against Mr. Petyt, p. 183. p. 127. in Marg. there were the Mag­nates, which must there be meant of the Nobilitas Major, (unless you take them for the Kings friends only, as the great men of the Kingdom elsewhere) these Magnates had drawn to their side, and to that treaty, Ʋniversam fere to­tius Regni Nobilitatem, Ma. Paris fo. 244. and this Nobi­lity was so numerous, that they made a vast Army, exercitum inestimabilem con­fecerunt, and the Records not only shew that such as were but liberi homines were there, and parties to the agree­ment being inter Regem, Comites, & Ba­rones & liberos homines, but the body of the Charter shews that Tenents by other free tenures, besides Knights [Page 22] service were interested in it.

Besides this, the frequent meetings in so wide a place as Runenede call'd Pratum Concilii, as I observed in the same page, is a strong Argument that vast bodies compos'd the great Councils in those days, and why Tenents in free Socage were not Members, as well as such as held of Subjects by Knights ser­vice I see no reason, but wait for the Doctors; In the mean while I shall pre­sent him with some other Authorities which shew that my Assertion was not precarious.

(2.) If in the 38th. of H. 3. the Commons, or probi homines were Mem­bers of the Great Council by Repre­sentatives of their own choice, and degree, there being besides all the Te­nents in Capite two chose for every County,Jani, &c. p. 244. Vi­de amongst other Au­thorities. Vice omnium & Singulorum, and yet such came in their own per­sons both before, and after the making of King John's Charter, since which till the 48th. or 49th. of H. 3. no al­teration in the way,Jani, p. 51. 57, 58, 59, 60, 61. 66. 2 [...]4. 248. or right of coming is supposed; then it follows that Re­presentations were brought in when the Commons (who might have come [Page 23] in their own persons) agree to it, and there being of the Councils before the Norman times and then, Barones & populus, 'tis not to be doubted but that they came in their Persons if they would, both in the Saxon, and Norman times, especially since William the First did but confirm the Law of the Confes­sor concerning the power of the Great Council, Rex debet omnia rite facere in regno & per judici­um Proce­rum Regni Leges Par. Ed. in words that shew'd that all the Members were in those ages stiled Peers, such as might come in person, and that inferior Proprietors were Members, the Law of the great Folcmote then received proves beyond all dis­pute.

3. If besides Barones, Jani, &c. p. 241. and Milites, we find Libere tenentes, Against Mr. Petyt, p. 112. or Fideles in the account of Great Councils before 49 H. 3. we are to suppose,The free Tenents in Scotland, and the Possessio­nati in Po­land us'd to be Mem­bers of their great Councils without Represen­tation. even with­out Consideration of the Capacious places of their Assembly, and the mul­titudes there, that such Proprietors of Land as would, came personally, till a Law or common practice to the contra­ry be shewn, it being according to their natural right, and the natural import of the words; besides the Doctor does not allow of Representations, except [Page 24] the Tenents in Capite who came with­out Election,Jani, &c. p. 248. & p. 66. were Representatives of the rest.

4. If King John's Charter does not exhibit the full form of our English Great, Jani, &c. through­out. and most general Councils in those days, but, by continuing the rights of every particular place, leaves room for Proprietors of Land to have been Members, as well as Tenents in Capite, then the libere Tenentes, which many Records before the supposed change in the time of H. 3. mention as Members of the Great Councils, were not Tenents in Capite.

And as Tenents in Capite came in their own persons for matters concern­ing their Tenures; So, unless the con­trary can be shewn, we are to believe that the libere tenentes, not holding in Capite, came in like manner, especially if we consider how mean were some of the Majores Barones, to whom special Writs were to be directed, as he that held part of the Barony of Mulgrave, Communia de Term. Mich. An. 39 E. 3. Rot. 36. penes Rem. R. in scac­cario. per servi­tium millesimae ducentesimae partis Ba­roniae. Nay I find Norman Darcy, who indeed held several parcels of the Man­nor of Darcy, which seem to be by se­veral [Page 25] purchases,Penes Rem. Regis in scaccario de Term. Pasche 29 E. 3. Lincoln de Re. Brook tit. exemption. amongst other shares holding Centessimam partem Centessimae Sexagessimae partis Baroniae. The hun­dreth part of the Hundred, and sixtieth part of the Barony, and yet that he who had only so much was Baro Major appears, in that the Common Law ex­empted him from being of a Common Jury as holding part of a Barony.

Besides the Doctor yields that more than such as are expresly mention'd in the contested Clause, Tenents in Mili­tary service of King John's Charter, viz. of Tenents in Capite were Members of the Great Councils, (which he does not always confine to the great Te­nents) and some of these were as in­considerable, and as unfit for Counsel­lors as the generality of the libere Te­nentes; for though he in his sixteen years search,Against Mr. Petyt, p. 41. could find no less a part of a Knights Fee, than a twentieth, yet in the last recited Record he may meet with the sixtieth part of one Knights Fee in the Mannor of Norton.

5. Being all that were Members of the Great Councils in those times of which our dispute is,Jani, &c. p. 32. 35, 36. 40. 57. 62, 63, 64. 66. 185. 219. were Nobles, in which the Doctor and I agree, and the [Page 26] Nobles came in their own Persons, the libere Tenentes, part of the Nobility were personally present.

Indeed Corporations holding in Ca­pite might well come by Representa­tion, being they were but as one Noble, and one Tenent, and would have been an unweildy body to move to Council united as their interest was.

(6.) King John's Resignation was void, because 'twas without the con­sent of the Commons, Sanz leur assent, and to say that this is without the assent of a general Council, Colloquium, or Parliament, in those times when it was done; unless he yield the same sort or degree of men to have been Members of the Great Councils formerly as then, does not take in the full meaning, but is to say nothing, being the Commons manifestly assert their right, as when they declared that they had ever been a Member of Parliament, Against Mr. Petyt, p. 133. and as well Assenters as Petitioners. And what force does it bring to the Doctors Asser­tion, that the Commons answer in the same form of Speech conceiv'd by the Ba­rons? ib. p. 140. Which he thinks worthy of great Letters, is that an Argument that the [Page 27] Commons did not think that they ought to have been parties? He himself grants that King John resigned before them that came upon a Military Summons, Against Jani, &c. p. 22, 23, 24. that is (as all who ought to come were concluded by them that came) before all his Barons; wherefore nothing wanted to the Confirmation, but the Consent of the Commons.

And if the Commons were then an essential part of the Great Council they might come in Person,Vid. the 12th. head. unless the change in 49 H. 3. can be shewn to have been any otherwise than in the bringing in a Representation of them.

(7.) By the Charter of H. 1. Jani, &c. p. 34. for the King's dominica necessaria, or de arduis Regni, all the Counties and Hundreds, that is the Freeholders, the Suitors at those Courts were to be summon'd to the Great Council, as it had been in the time of the Confessor, when there re­paired to the Great Folcmote, or General Council held once a year, all the Peers, Knights, and Freemen, at least Free­holders of the Kingdom.

(8.) For demonstration that libere tenentes came to the Great Councils in their own Persons, and as Members; [Page 28] King John before the passing of his Charter, writes to the Milites, & Fi­deles, (the last of which takes in all the libere tenentes) and tells them that if it might have been done he would have sent Letters to every one of them; where­fore these Members whose right is here acknowledged were single, individual persons; for they could not have been summoned to come by Representation in the case of such particular Writs, or Letters, unless the Representation were setled before the Summons, which is not to be supposed. These Arguments all but the last, which the Doctor has supplied me with, arise out of my for­mer Treatise, and I take it that this which the Doctor has occasioned, will yield a few more without pressing.V. Domes­day, &c.

(9.) Since William the First was no Conqueror,Besides (according to the terms first agreed on) he received the Confes­sors Laws about this Folcmote. Confutati­on, p. 33. it follows that the Great Folcmote, or General Council in the Saxon times, where to be sure all Proprietors of Land were to be Members, could not have been turn'd into an Assembly of the Kings Tenents upon the old legal Title, (and without a Conquest there was no other.)

[Page 29] And as there must have been a vast number of the Proprietors whom the Kings immediate Tenents could not oblige; so they must have been Mem­bers of those Councils which laid any general Charge, and that with the same priviledges the Tenents in Capite, who came in Person, had.

(10.) Though demonstration it self will not satisfie unreasonable men, yet not to mention more I shall urge the Authority of the Legier Book of Ely before cited,Jani, p. 41. (the great Antiquity of the hand writing of which is beyond all exception) to persuade the Doctor that my Notion is far from being preca­rious; Since that M. S. shews that King Stephen consulted about the State of the Kingdom, not only with the Bi­shops, Abbots, Monks, and inferior Clergy, but with the Plebs, and they in an infinite number, Concilio adunato Cleri & populi, Episcoporum, atque Ab­batum, Monachorum, & Clericorum, Plebisque infinitae multitudinis, &c. de statu Regni cum illis tractavit.

This single instance is sufficient to prove that the Primates, Against Jani, p. 62. Primores, Pro­ceres, Magnates, and Nobiles, were not [Page 30] the Constituent parts of Great Councils in the Reigns of W. the 1st. H. 1st. King Stephen, H. 2. R. 1st. according to his restrictive and limited understanding and exposition of these words and phra­ses, but that the CLERUS and PO­PULUS (the general words which of­ten comprehend all the Members) sig­nifie as well as Great Men, the Com­mon Freeholders, as at this day; nor need I examine his Book any farther: but I hope the Doctor, a man of that known integrity, as his excellent Book expresses him to be, will now make good his promise to be of my opinion, when I should evince that Common Free­holders had this great priviledge.p. 62.

(11.) The Lords right of answer­ing for their Tenents being founded in the imaginary feudal right, which is made to extend only to Tenents by Knights Service, the Socagers, being free from that Law, could not be charg­ed without their own consent, and that given by word of their own mouths, if they pleased.

(12.) The Authority cited by Mr. Cambden, Jani, &c. p. 248. and approved of by our Au­thor as well as by me, shews that the [Page 31] only change in the Great Council was in leaving out of the special Summons what Earls and Barons the King pleased but the right of all other Barons▪ Against Mr. Petyt, p. 226. ib. p. 228. Confutati­on, p. as Singular Persons, to share in the Le­gislature was preserv'd by the alia illa brevia, by which the Representatives for the Counties came, and being all the Members of the Great Councils, but Citizens and Burgesses, or all such Ba­rons as aforesaid, came before the change in their own Persons, and no new kind of Members were then Crea­ted, and yet there was a substantial alteration,Against Mr. Petyt, p. 210. a new Government fram'd and set up, this alteration must consist in the Commons, or Barones Minores, their being put to Representatives when before they came Personally.

(13.) I could bring many Argu­ments from the Doctor,Against Mr. Petyt, p. 183. & 192. as, besides o­thers, that the Ʋniversitas Militiae, or qui militare servitium debebant, that is as Record explains, Ma. Paris, the Fideles besides Milites were Members of Parliament, but I may spare farther proof till he gives me fresh occasion.

[Page 32] (14.) And possibly then amongst his other marvellous discoveries, I may have time to animadvert a little more largely upon his fancy,Against Jani, &c. p. 34. that the Suitors in the County Court were all Tenents in Military Service, Yet this tenure came in with Will. 1st. except Barons, both in the Saxon and Norman times; by the way you must understand that the Barons were not Tenents in Military Service, Against Mr. Petyt, p. 31. though they held in Capite by Knights Service. And that William the the First made no alteration of the Go­vernment; for Tenents by Military Service, were the only legal men, and the only Members of the Great Council before.

But as Tenents in Capite, Glos. p. 26. and their Tenents in Military Service were of the Great Councils in Person, all the Suitors at the County Court, who were according to the Charter of H. 1. qui liberas habent terras, in each County respectively, were there in Person as Members.

Though not relating to the founda­tion of my Essay,Against Mr. Petyt, p. 43. according to him, who makes the Question about the Con­quest [Page 33] not directly to reach the Contro­versy between us, Against Jani, p. 15. I may make a little sport with his Arguing that William 1st. gave whole Counties to his Followers,Against Mr. Petyt, p. 29. under the word Comitatus, that is as he renders it, all the Lands in the Coun­ties, Glos. p. 8. and yet that besides whole Counties, he gave a great proportion of Lands in them.

But since he taxes what I lay for the foundation of my Essay for precarious, let's see a little whether he does not render his own so, where it opposes mine. His whole Book in that respect resolves its self into these three Heads;

1. That King John's Charter in affir­mance of the Law imposed by William, or in force before, declares that the Te­nents in Capite were the only Members of the General Council of the King­dom.

2. That from thence to the 49 H. 3. the practice or fact was for Tenents only to compose the Great or General Coun­cil.

[Page 34] 3. That none but Tenents in Capite were Nobles.

(1.) If he himself yields that till King John's Charter there was no such Council as one made up only of Tenents in Capite, he thereby renders all under this head precarious, but this he does in two places at least. One where he urges that if the Curia Regis Ordinaria, which I say was the Court of the Kings Tenents,Against Jani, p. 46. & 47. and Officers exclusive of o­thers, went off by reason of the Clause in King John's Charter, it certainly went off before it began, that is, such a Court began not before; and agreeable to this, he says, that after the granting of this Charter by King John there were many General, and Great Councils, or Collo­quiums summon'd by Edict according to the form there prescribed: that is, as he will have it, after that the Tenents in Capite only were summon'd to the Great Council, but not before, for then began this form.

In another place (though he charges upon me what are his own words) he says King John resigned his Crown the 15.ib. p. 22. & 23. [Page 35] of May in the 14th. of his Reign, and he granted the great Charter of the Li­berties three years after on the 15. of June in the 17. of his Reign,Thus p. 48. & 49. he charges Mr. Petyt and me for averring that even Servants who are not in a legal sense people of the King­dom were Members of the Great Council. and there­fore could not resign it in such a Council as was Constituted three years after his Resignation. And 'tis a question whe­ther he asserts not this in a third place, where he affirms that before this Char­ter the Kingdom had been Taxt by our ancient Kings, and their Privy-Council only.

(2.) But in truth he not only yields that the Tenents in Chief were first made the General Council by King John's Charter;My words are in such a Council as this here. but that after that, more than such were Members,Jani, p. 15. which is as much as to say that there was such a Council as this before. p. 118. not only the Te­nents in Military Service, of Tenents in Chief, but other ordinary Freehol­ders. So that he submits himself to be goard by both the horns of that Dilem­ma inforc't in my former Treatise, viz. that King John's Charter was either de­clarative of the Law as 'twas before, Against Jani, p. 66. Jani, p. 236. or introductive of a new Law. And yields the precariousness of his own vagaries.

(3.) But does he not own that the [Page 36] Notion that Tenents in Capite only were Noble, is precarious? Since he yields that no kind of tenure does no­bilitate, Glos. p. 10. or so much as make a man free who was not so before according to his Blood or Extraction.

Though, according to this, one that held of the King in Chief might have been a Subjects Villain, yet none that held a certain Estate of Freehold could be a Villain, because 'tis contrary to the nature of a Freehold, that it should be so no longer than another pleas'd, that is only an Estate at will.

He will have it that Mr. Petyt is guilty of some horrible Design, Against Mr. Petyt, p. 1. from the effects of which it seems this mighty Champion is to rescue the Government.

And for me I am a Seducer, one who would seduce unwary Readers, Against Jani, p. 71. a mali­cious insinuation, as if I would wheedle to my side a party against Truth and the Government; but whether he who would set aside the evidences for the Rights of the Lords, and Commons, or they who produce them fair, and would [Page 37] render them unquestioned, is guilty of the worst design, the World will judge; and I doubt not, but he has at home a thousand Witnesses,Conscien­tia mille testes. who, if he will hear their unbyast Testimonies, will inform him whose are the groundless and designing interpretations. Against Mr. Petyt, p. 1.

But I must confess they are so weak that these sacred things need very little help to rescue them;ib. especially since their Enemies are so far from agreeing amongst themselves, that 'tis more easie to conquer than to reconcile them.

As on Mr. Petyts, and my side, the design can be no other, than to shew how deeply rooted the Parliamentary Rights are; So the Doctors in oppo­sition to ours, must be to shew the con­trary, (a design worthy of a Member of Parliament) and 'tis a Question whether he yields these Rights to be more than precarious.

For according to him the Tenents in Capite were the only Members of the Great Council before 49 II. 3. and if others were after, 'twas by Usurping [Page 38] upon the Rights of Tenents in Capite, ib. p. 210. who and not others,ib. 42. when the new Government was set up, How were Cities and Burroughs holding in Capite Re­presented according to this? began to be Re­presented by two Knights for every Coun­ty, out of their own number, and they at first, that is then, Elected their own Representatives; and yet these Tenents in Capite might be set aside if the King and his Council pleased,And how came they ever to be Represent­ed? nor was any power given to others to chuse till 10 H. 6. c. 2. which gave no new power,ib. p. 79. and the Lords depend upon the Kings pleasure.ib. p. 42. Therefore what the design is,ib. p. 227. & 228. and at whose door the crime of it lies▪ the thing it self speaks, tho I should be silent.

But for fear he should seduce unwary Readers, I must observe his Artifice in imposing upon them the belief that as it has ever since 49 H. 3. been at the Kings pleasure that any Lords came to the Great Council; so the King could of right name to the Sheriff what Repre­sentatives for the Counties, Against Mr Petyt, p. 249. Cities and Burroughs he pleas'd, as he observes in the Margent upon a Record 31 E. 3. but he is not so Candid to observe, that though indeed at that time there was [Page 39] such a nomination, yet that was not to any Parliament, or to make any new Law, or lay any kind of Charge upon the Nation, or particular men; but was a Summons of a Council to advise how what was granted by full Parlia­ment, legally Summon'd, might be best answered juxta intentionem concessionis praedictae, and in such Cases the Judges only, who are but Assistants in Parlia­ment, might well be consulted; but pro magnis, & urgentibus negotiis, (as when King Charles the First called the Magnum Concilium, or Great Council of Peers to York, An. 164 [...]. upon the Scotch Rebel­lion) the King call'd more to Advise with▪ and the Counsellors might well be of his own Choice.

'Twill be urg'd that when the King appointed but one for every County,p. 242. 26 E. 3. p. 246. 27 E. 3. they were impowr'd to consent to what de Communi Consilio contigerit ordinari, and that such a Council made Laws, as the Statute of the Staple made the 21 of E. 3. to which the answer is very ob­vious, that they made only Ordinances, not Laws, and that these were Magna Consilia, taken in a sense totally diffe­rent [Page 40] from the Generalia Concilia, or Parliaments, and all this appears above the power and subtilty of our learned Doctors Evasions, in that the Record cited by himself in the 26 E. 3. calls the Assembly they are Summon'd to, Concilium only, and an Act of Parlia­ment in the twenty eight of that King calls what was done in the twenty seven Ordinances, 28 E. 3. c. 13. and that meeting a Great Council, Magnum Concilium; but such a Council it was, and its Resolutions such meer Ordinances (the distinction of which from Acts is well known) that that very next Parliament finds it needful to confirm, and give them the force of a Law. Agreeably to this the Earl Marshal in that grand Case in the 3 H. 6. pleads,Rot. Par. 3 H. 6. n. 12. that though a deter­mination hadde be made against the said Earl Marshall in great Council, though he hadde be of full age, that might not disherit him without Authority of Par­liament, these are uncontrollable evi­dences, and proofs against him, let him to save the great Credit of his Learning answer them if he can.

But who is the new Government-Ma­ker, [Page 41] and new Parliament-Maker, per­haps one might know from himself when he has considered a little better, and then he may think the Government, as 'tis now establisht, nighly concern'd in his Errors.

Perhaps 'twill be said I injure this good man in imputing to him a design in relation to the present Government; Since he owns that the most excellent great Council, Against Mr. Petyt▪ p. 229. (and goes to prove it evidently from Records) received its perfection from the Kings Authority, and time. But 'tis obvious that its Per­fection, must be meant of such its Per­fection, as his Book allows, and he would make evident, but what is that? That Lords should, to the time of his excellent discoveries, be Summon'd to Parliament,ib. p. 227. & 228. or past by, at the Kings pleasure, and that if the King pleas'd, he might Summon one Knight for a County, ib. p. 249. one Citizen for a City, one Bur­gess for a Burgh, and those nam'd to the Sheriff.

And this design will be very evident if we observe his aery ambuscade, to [Page 42] return his own phrase, and meer juggle in joyning the Kings Authority and time together; we think we have some­thing, but by an Hocus Pocus Trick 'tis gone; for admit that its Perfection were such as we say it has at this day, viz. for Lords to come of Right in their own Persons, and that the Com­mons should send Representatives of their free Choice. Yet let us see what setlement he gives this Great Council, for which purpose we must divide the two Authorities, which sometimes may differ.

And (1.) Suppose that though time would preserve that power which the Great Council exercises, a King would hereafter take it all to himself, and make Laws by a Council of his own chusing, or without any. If the Do­ctor allows this power, doubtless the next Parliament will thank him.

(2.) Suppose that without, or a­gainst the Kings Authority, time only would establish this Great Council, can this be done? He that affirms it surely [Page 43] will be no great friend to Prerogative, nor understands he that Maxim,

And one of these must be clos'd with.

'Twill be objected that I am as inju­rious to Prerogative in arguing that some Lords may have a Right of Pre­scription to come to the Upper-House.

But I think no sober man will deny that there is a right either from Writs alone, or from Writs as prescribed to, and 'tis strange that it should not be against Prerogative to urge a right from one Royal Concession, and yet it should be to urge it from many; but farther, if they who had no right to come in Person, or be Represented in Parliament, should by colour of Prescription put themselves upon the King for Counsel­lors, this were derogatory to the Pre­rogative. But if there be a natural right for Proprietors of Land (with whom some say is the ballance of power with­in this Nation) to be interested in the Legislature, which I [...] not affirm. [Page 44] Or if there be such a positive right, not only from the Laws for frequent Parlia­ments, which suppose such to be Mem­bers as had been, but more particularly from the Law received in the 4th. of William the First,Rex debet omnia rite facere in Regno & per judi­cium pro­cerum Re­gni. and by positive Law or Custom the King us'd to send special Writs for some, general for others; the Prescribing to special Writs, which is not of Substance as to the Legislative Interest, is no diminution of Preroga­tive; because no more in effect is out of the King than was before, which is, that this man should one way or other have a share in the Legislature.

If this Solution of mine will not pass I cannot help it, I am sure the Law for a right grounded upon one or more Spe­cial Writs of Summons, stands fast, though the reason of it should be above my reach.

Having run through a Book so ill­natur'd to the Government, and so im­potent in its setled anger,Above all vid. Title page Against Mr. Petyt, & p. 81. as that which some may think to have no other design, than that of exposing Mr. Petyt and me, the one for Artifice, unhandsom dealing with, and false application of [Page 45] Records, &c. the other amongst other things, for Ignorance, Confidence, and Cheating his Readers; I may hope not­withstanding the disparity of years, and the dignity of his place, to be very excusable in using our Answerer with no more respect.

When a man renders himself cheap by his folly, and yet meets with many so weak that they are discipled by him, to notions of dangerous and pernicious consequence to the State.

In summing up the Product of his ma­ny years labours, which my Preface charges him with, perhaps it may be thought that I omitted one conside­rable Head; however I leave to others if they think fit to add for a seventh.

That both Lords, and Commons may be depriv'd of all Shares, or Votes in making of Laws for the Government of the Kingdom, when ever any future King shall please to resume the Regality.

[Page 46] Some perhaps may add an eighth; That the Parliaments are nothing but Magna Concilia, such as are called only to Advise upon what shall be given in direction, but no consent of theirs re­quired to make the Kings determination a binding Law.

And Vice Versa, every Great Council, such as that call'd to York, An. 1640. is a Parlia­ment.