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Jus Anglorum ab Antiquo: OR, A CONFUTATION OF AN Impotent LIBEL Against the Government BY King, Lords, and Commons. Under pretence of Answering Mr. PETYT, and the Author of Jani Anglorum Facies Nova. WITH A SPEECH, according to the Answerer's Principles, made for the PARLIAMENT at OXFORD.

Ne Sutor ultra crepidam.

LONDON, Printed for Edward Berry, in Holborn-Court in Grayes-Inn, 1681.

THE PREFACE.THere wa …

THE PREFACE.

THere was a Book lately publish'd against Mr. Petyt and my Self, which not only treats us with Pe­dantick Scorn, like those that are to Cap the Author within his Colledge: but its seems, to trample on the best Consti­tution, our Government it self, under Co­lour of its being New in the 49th. of Hen. 3.Against Mr. Petyt. p. 110. when it arose out of the indigested Matter of Tumults and Rebellion; and so not ha­ving a Legitimate Birth, as not born in Wed­lock between the King and his People, it may be turn'd out of Doors, by the Help of that Maxim.

Quod initio non valet, tractu temporis non convalescit.

How can a Bastard become a Mulier?

The Treatise which was to prove the Fact, Against Jan. &c. p. 1. Matter of Fact only. was cried up for unanswerable; and per­haps, 'twas imagined, that there was no possibility left for a Reply; since the Writer, who has render'd himself famous in his Ge­neration [Page] (as if he knew better how to ma­nage a Design than an Argument) pass'd it about, only to such Hands as were obliged by Promise, if not by Principle, to conceal it.

But Mr. Petyt, and my Self, having by Accident seen bis Book, and observed some Heads which we intended to expose to the World: At last, out comes the happy Birth; yet 'twas hoped, that by that time, there might be Proselytes enough to defend it, with Noise and Acclamations, and Contempt of all Opposers, Records, Ancient Historians, and our Ancient or Modern Lawyers.

Though generally, in a Matter of Argu­ment, we ought to leave to the Reader, the Censure of what we think we confute, with­out remarking how absurd or criminal it is; yet when such Reflections are almost the on­ly Arguments on the other side, and they, when pronounc'd, tanquamè Cathedrâ must have some Authority, 'tis fit, that even these trifles should have their due, provided they be answered with Decency of Expression: And we know in what manner the Wise Man advises us to answer some People.

I should have been glad if this Author' [...] Civility had obliged me to treat him at ano­ther Rate than I do; since I delight not i [...] [Page] this way, nor think thereby to please such Readers as I would court to be Judges be­tween us.

But why should I Apologize for the ma­naging of this Controversie in a way whol­ly New to me? Since the severest Expres­sions are but retorted and transcrib'd from our Answerer's Original; and indeed it may well be an Original, for 'tis without Example.

If in any thing I seem intemperate, I may say with an Author well known, Ex­cess of Truth has made me so.

Our Author's very Notions are Satyrs upon themselves; nor can any thing more expose a Man, than a seemingly Gigantick Endeavour to remove the fix'd Stars, the Lords from the Firmament, where each shines in his setled Station; and to take from the Commons of England, that Spot of Earth which they enjoy, and tread on.

While the Sons of Titan lay Pelion up­on Ossa, one Mountainous Fiction upon another, the Mountains have a quick De­livery, and bring forth Confusion to the Giants.

What has been the Product of his many Years Labours, I think may be [Page] shewn in Miniature, under these Heads.

(1.) That the Norman Prince, against his reiterated Promises, and against the great Obligation of Gratitude to those of the English who assisted him,Against Mr. Petyt. p. 29, 30, 31, 32, 33, 34, 35, so p. 176. took away all their Lands and Properties, and left them no Right or Law.

(2.) That from the Reputed Conquest, and long before, under the British and Sa­xon Governments, to the 49th. of Henry the Third; None came to the Parliaments or great Councils of the Nation, where Life and Fortune were disposed of, but the King's immediate Tenants in Chief, ib. p. 39. by Knights Service.

(3.) That even they came at the Discre­tion of the King and his Council,ib. p. 79. & 228. ever af­ter the 49th.

(4.) That the House of Commons began by Rebellion in that very year;ib. p. 210. 228. & 229. nay, and the House of Lords too.

(5.) That the Constitution of the Lord's House,ib. p. 227. 228. 229. consists at this very day, in the King's calling, or leaving out from special Summons to Parliament, such Earls and Barons as he pleases.

(6.) That by vertue of the New Law imposed upon the People, p. 29. by the Conque­rour,p. 39. none within the Kingdom, were Free-men [Page] or Legal men, but Forreigners, who came in with him, being such as nam'd and chose Juries, and serv'd on Juries them­selves, both in the County and Hun­dred Courts, who were all Tenants in Mi­litary Service.

None surely, but such as read without observing any thing, whose Books can't beat into their dull Brains, common Reason, and who never were acquainted with that ex­cellent Comentator' [...] practise, will think that I need set my self to argue against every one of these: 'T [...]ll be enough, if under those Heads which I go upon to destroy his ill laid Foundations, I prove them upon him, for most of them confute themselves.

Truly, I cannot but think Mr. Petyt, and my self, to have gone upon very good Grounds; since, they who oppose them, are forc'd to substitute, in their Rooms, such pernicious ones, as would render the Foun­dation both of Lords and Commons, very tottering and unstable.

Not to mix Lords and Commons to­gether, I will endeavour to do right to the dignity of that Noble Order, and their Interest in Parliament, apart from the other.

[Page] The Constitution of the House of Lords our Antagonist, as I shall shew, will not allow to have been setled, till after the time of E. 1. if it be yet: Whereas, for a short Answer to his new Conceit, the Earl of Norfolk, Rot. Parl. 3. H. 6. n. 12. p. 228. in the third of H. 6. lays his Claim to, and has allowed him the same Seat in Parliament, that Roger Bigod his Ancestor had in that great Court in the time of H. 3. And, though, on the side of the Earl of Warwick his Competitor, 'tis urged, that the Earl of Warwick had the Precedency by King H. 4 [...] [...] Command­ment. 'Tis answered, Yat Commande­ment yave no Title, ne chaungeth not the Enheritaunce of the Erle Mareschal; but if or unless hit hadde be done by Auctorite of Parlement. And, if Pre­cedency were a setled Inheritance, which could not be alter'd, but by Act of Parlia­ment, how can a fixt Right of coming to Parliament, be taken away otherwise? Though our Author supposes it to be at the meer Will and Pleasure of the King.

I take leave to observe, that the Right of Precedency from within the Reign of H. 3. nay, though before the 49th. is no way in­consistent with the Belief, that many Lords who had Right, till a Settlement then [Page] made, were left out afterwards, at the King's Pleasure, that is, had no special Summons; yet tbey could not be denied their Right of being there in Representa­tion.

Be it that the Heires of Bigod, and himself,Jan. Angl. faci [...]s nova p. 257. & 262. were Tenants in chief, which, as I thought at least, I shew'd formerly, could not, since the 49th. have Right to come to Parliament; quatenus, Tenants in chief; yet, when any of the Heirs came upon par­ticular Summons to Parliament, that is,6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament. &c. the King's Calling them out, as Singular Persons, they were to come as Tenants in Ca­pite, in the manner as they be bounden, and have been of old time accustomed. And they that re­fused, shouldbe amerc'd as is the Penalty.

By Manner is meant, (1.) in the same Quality, Lords as Lords; and (2.) in that Degree of the same Quality, which of old time had been accustomed.

(3.) The Manner also implies the man­ner of enjoying any Power in Parliament. Thus the Lords were of old accustomed to enjoy the ordinary Power, in a Manner properly Judicial; and that the supream Manner too. Whereas the Commons had [Page] of that, only what was needful to maintain their Priviledges; as to the Legislature, the Manner was the same, Neither was above, or could give Law to the other.

But in the judicial Power in Parlia­ment, the Commoners were no more to be joyned with the Lords, than with the Te­nants in Chief in the King's ordinary Court out of it:Vid. infra in the bo­dy of the Book. p. since the same Curia Regis, dele­gated from the Lords, and answering to that which was pro more, us'd to exercise that Power, both in Parliament and out of it; so that wherever they sate, they were in the same Court: The Commons could not exercise this Power with them out of Par­liament, therefore not in it.

Some will say, that no more is intended by this Statute, than that every one who receives Summons, must come, as was his Duty and had been of old.

Whereas 'tis certain, they who did not come as they were bound, were amerceable before at the Common Law: nor was it likely, that the King wanted a Law to make good that Prerogative, which to be sure he had over his Tenants by their very Tenures, and could seize upon their Lands for Contempt of his lawful Power, as the Bishops were sometimes threatned,Vid. 4. [...]ust. Inde se capiet ad Baronias su. 8.

[Page] And this is enough against this Author, since he makes the King's Tenants in Ca­pite, to have been all that came to Parlia­ment, even by Representation, till the 8th. of Hen. 6.Against Mr. Petyt. p. 42. which 'tis his setled De­sign to prove, though sometimes he contra­dicts himself, and yields, that their Te­nants by Knights Service came too.

Besides, the genuine Import of the Man­ner, leads me to this sense, especially, as 'tis joyned with Bounden: For he who was a Commmoner till the Summons, was not bound to come as a Lord; nay, was not a Lord when he came; As appears by the Writs to the Lords Assistants, in the same Form with those which the Lords have. So that the Statute; in my sense, is manifestly in Affirmance of the Common Law.

I shall lay at the Feet of the Lords my Sentiments, in relation to their House, ei­ther as I agree with, or oppose one, to whom that High Order, probably will not think themselves much obliged.

I shake Hands with him,Against Petyt. p. 228. and agree, that King Hen. 3. a little before his Death, began to leave out such Earls and Ba­rons as he pleased; but I believe not this upon his Ground, which is, as if it were [Page] meerly from Royal Authority, that is, the Prerogative which that King had from of Old,p. 229. without the Actual Consent of the People: For I say, 'twas given him by Parliament,J [...]es Rep. f. 103. concern­the Earl­dom of Oxford. Princes Case 8. Rep. either in the 48th. or 49th. Nor doth Rex statuit in the least discou­rage me in this Opinion, being many Acts of Parliament have pass'd with the joint Au­thority of King, Lords and Commons; and yet the Enacting Part has had words of the same Import with this.

(2.) I differ from my Opponent, when he would have it believed,p. 228. supra. that Ed. 1. and his Successors observed this con­stantly; or as he exprest the same thing before,p. 227. The Practice was then and ever since accordingly.

And in this, he has dealt as unfairly by Mr. Camden, whom he quotes, as I doubt not, but 'twill be found, he has done by Mr. Petyt and me: For Mr. Camden tells us, That he has this out of an Author sufficiently Ancient, and thinks not, that he differs from the Authority which he re­ceives, when he says, 'Twas thus only, do­nec, till there was a setled Right. And this he makes 11 R. 2. but this the Do­ctor vouchsafes not to take notice of.

[Page] But how cheap does he make his applau­ded Reasonings, when he would prove it to be thus, ever to this very time, or the time, of publishing his Libel, because it was in the Reigns of Henry 3. Ed. 1. and his Successors, to the time of that Old Authors Writing; who, if we credit Mr. Camden, wrote before 11 Richard 2. of which he might be assured, by the way of Writing in several Kings Reigns re­spectively, to which Antiquaries are no Strangers; or else by the Date annex'd in the same Hand.

But to prove that the Learned Claren­ceux knew more of these things than this Pretender, I shall shew, that Rights were setled for coming to the House of Lords long since.Against Mr. Petyt. p. 175. But he will say, possibly, That he has anticipated and evaded my Proof, as my Arguments upon the grand Questi­on were in his Belief,Against Jan. &c. p. 47. by saying in one place,Against Mr. Petyt. p. 227. In those times, probably, the King might omit to summon whom he would.

I think he swarms with Contradictions, as a Judgment upon his Vndertaking: For he says, That by what he calls the New Government, 'twas appointed and ordained, ib. p. 110. not only, that the Kings should [Page] call whom they pleased: Which cannot pro­perly be meant of Calling but once by Patent, or Writ, and the giving a Right from thenceforth to come afterwards; because there was and is yet a new Call to every Lord for every distinct Parliament.

But he is express, p. 227. That all those Earl [...] and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons, should come to his Parliament, and no others, unless by chance.

But pray, what a Reflection is this up­on several excellent Monarchs Successors to H. 3. whom he renders Denyers of their own Acts, though under the Broad Seal?

But there is an Argument in the Par­liament Rolls,3 H. 6. p. 12. upon the Question of Pre­cedency above-mentioned, where 'tis taken for granted, that our Kings and Queen [...] had not then such a Prerogative to do wrong.

If soch commandementz shold make right, and yeve title, it wer to hard, for yen shold it seme yat neither of my sayd Lords, Erls, Mareschal and War­wyck, shold fro this day never sitte [...] in Parlement without new Comman­dement.

[Page] To tell the Lords, who are concern'd [...] this, that there are many who have an [...]defeazable Right by Patent, and some, [...]he first of whose Ancestors or themselves, ever had any more than the ordinary [...]rits, without creating Clauses, or any [...]her than such as when any Parliament [...]as to be called, went out of Course, and Right, to them who were Lords before, [...]ould be as needless as the Orators Dis­ [...]ourse of Tacticks to the Carthaginian Hero.

I shall be bold to offer to Consideration, [...]herein consists the Right of such a Sum­ [...]ons; and I take it to be in the Prescrip­ [...]ion, though perhaps, none were setled in [...]he Right of coming, till the 11th. of R. 2. Yet the time from whence they pre­ [...]cribe might be Earlier; and yet, whether Writ alone, or only as fortified with Pre­ [...]cription, gave the Right, here was what was not still left to Royal Pleasure on­ [...]y.

I conceive, that a Writ of special Sum­ [...]ons, of it's self, gave no man Right to come always after this as a Lord; for, if it made him not a Lord, it gave him no Right to come to the Lords House as such. And this I take to be evident, from the [Page] Records of the several Summons of the tw [...] Furnival's, Jan. Angl. at the lat­ter end. Father and Son, who had th [...] same Writs of Summons with the Lord [...] and yet were no Lords; for, the lowe [...] Degree of Lords, was Barons, and th [...] Son pleads, that his Amerciament in a great a Sum as a Baron was against Law for that he neither held by Barony, ne [...] Baro suit intitulatus, nor was called B [...] ­ron, nor obtained that name; which could not have been, if he was one of the Baron [...] in Parliament: so that he could be no more than an Assistant, as the Assistants hav [...] Writs in the same form with the Lords Wherefore, if any claim'd from Writ, [...] must be by prescribing to have had it [...] long time in his Ancestors, as amounts [...] a Prescription by the Custom of Parlia­ment, which is the Law of it. Besides, [...] can be no Objection, that to a Prescription 'tis necessary, that it should have been i [...] memorially, so as nothing to the contrary can be shewn; whereas the very first Wri [...] may be seen, for this most plainly is diffe­rent from common Prescriptions, both in the manner of it, and in the Reason of th [...] thing.

(1.) In the manner. We find the Bur­gesses of St. Albans to lay their Prescripti­on [Page] only from the time of the Progenitors of E. 1. which might be only from within the time of King John, or from the beginning of his Reign; if but from the later end, [...]here were an hundred years for a Prescrip­ [...]ion.

(2.) But besides, this apparently dif­fers in the Reason of the thing; so that it must needs have a different Law from com­mon Prescriptions: For other things, the Ground of the Right, is the always having enjoyed either by a man's Ancestors, or by them whose Estate he has.

And if it were at any time in others, and it could not appear when they parted with it, 'twas a manifest Injustice for them to make such a Claim to have it; so that [...]he appearing upon Record, when the first Writ was, is an Argument, that a Pre­scription may lawfully be made in this Sense.

(2) There were Commonalties,Rot. Par [...]. 8 E. 2. Bodies contracted by Representation, that came to Parliament of Right, who yet were Lords in the Drs. Sense, being they held in Capi­ [...]e, as he supposes the Knights for the Coun­ [...]ies to be Grantz, the same with Magna­tes, as they held in Capite. I am persua­ded, in this he taught the most Learned, [Page] what fell not within their Knowledge o [...] Belief before, and for a while, made them quit that peice of Philosophy, Nil admira­ri, in wondring at the Sagacity of the man. However, by this time 'tis wond'rous plain from his Demonstrations; that admit a Difference was made between Lords and Commons, with distinct Power, yet the Commons of Counties, Citties, and Bur­roughs, were not only often called by the same Names,Yet I take it, that such Tenants in Capi­te, had no share in the Judicature, because then 'twould have con­tinued still. but were strictly Lords; and therefore had a joyn [...] Power even in Judicature. For if they came before as Tenants in Capite, and that Tenure made them noble, 'twas to be ever in the same manner since;6 R. 2. c. 4. But the very Tra­ders, nobilitated by the Dr. lay claim to and have allowed them a Right from Pre­scription.

It may be objected from hence against my Notion of the Lords, which held in Capite▪ being pass'd by at the King's Pleasure▪ (tho others were not) that here a Pre­scription, is laid upon the Tenure in Capite And it being from before the 49th. o [...] Hen. 3. there could have been no such Settlement as both my Opposite and my self receive. He perhaps has set aside this [Page] in his own Opinion, but I must confess, I can't embrace his new Sense.

However, I think it no hard matter to give a natural Answer: For, the Author cited by the faithful Mr. Camden, ac­quaints us with no other Alteration, than what related purely to Singular Person [...] ex tanta multitudine Baronum, Mat. Par. Quasi su [...] numero non cadebat. Who be­ing scarce to be numbred, made very great Disturbances, which required a new Mo­del, and a Restriction of the Numbers; provided it might be with a just preservati­on of the Rights of every one in particular: but, those great Bodies which before came by Representation, could admit of no change without a tendency to Destruction.

Agreeably to this Observation, the Inha­bitants of St. Albans plead their Right to be represented in Parliament: not barely be­cause of Tenure in Capite, Rot. Parl. 8 Ed. 2. but, Sicut caete­ [...]i Burgenses regni, as other Burgesses in [...]he like Circumstances.

(3.) I hope I have some Reason for my Confidence, when I affirm, that I ought [...] differ from this New Light, when it instructs us, that the King's appointing [...]nd ordaining,p. 227. That all those Earls and [...]arons of the Kingdom of England, to which he thought fit to direct Writs of [Page] Summons, should come to his Parlia­ment, and no others; or, as he repeats the same, meaning, the Arbitrary Pra­ctice of Henry the Third. Ed. the First and his Successors, constantly was the Constitution of the House of Lords. Having recited the words of Camden's Au­thor, he goes on.

Having had one great Antiquary's Opinion,Against Mr. Petyt. p. 228. joyned with matter of Fact, upon the Constitution of the House of Lords, let us see the Opinion of ano­ther, concerning the Origin of the House of Commons; so that the Con­stitution of the House of Lords, answer [...] to, or is in the same Sense with Origin▪ in Relation to the Commons: And, the making this to have been the Constitution of the House of Lords, and maintaine [...] in Practice ever since, is as much as [...] say, the Rights of that Order of men, a [...] not setled at this day; for the despotic Power in this matter, has been, if we be­lieve him, constantly exercised, and tha [...] of Right, ever since the 49th. of Henry the Third.

By the Constitution of the House [...] Lords, that which is the only thing possib [...] to be here implyed by the word, is the Righ [...] [Page] of the Lords to come as Lords, and the beginning, or first Establishment of it. For, the Constitution of an House, separate from the Commons, could not consist in the King's leaving out, or calling Lords at his Pleasure: since such Arbitrary Procedure with them, would only differ them in point of Interest from the Commons, whom he pretends not to have been omitted at the King's Pleasure, ever since the 49th. of Henry the Third: but, he denies, in effect, that any Lord, and by Consequence, even enough to make an House or distinct Assem­bly of Lords in Parliament, had, or yet have, any Right.

Thus against the Laws of Friendship, he destroys the Successors of those Tenants in Capite, whom he so dearly lov'd, and cherish'd.

And it seems, courted a great Asserter of the Rights of that High Order, with a fawning Epistle, that he might the more ea­sily betray them all with a Kiss of the hand,Vid. his Letter to the Earl of Shaftsbury. and

Your Lorships Most humble and obedient Servant,

[...]nto a Belief, that he could give all due Sa­ [...]isfaction.

[Page] In the Charge which I have drawn up, I have intended no Injury: if the Consequen­ces will not hold, 'tis from the Error of my Judgment, not of my Will.

For my self, admit what I am im­peach'd of by him to be true, yet, being I argue, that ever since the 48th. or 49th. of Hen. 3. no man had Right to come, but as at this day: If my Notion of what the Government was before, be false, 'twill do no harm; and, I hope it cannot be af­firmed, with any Justice, that I am a new Government Maker, in relation to the present Frame; yet, I know that it has been whisper'd about, as if I would have this Government to be new modell'd, which I utterly abhor, and that more than my Accusers; the Ground of whose Accu­sations have been chiefly my devoting my self to the Service of the admirable Consti­tution by King, Lords, and Commons; the Rights of the two last, I have, accord­ing to my Capacity, defended, being the [...] have been controverted. But, surely n [...] man dares be so presumptuous, to set him self against God's Vicegerent, by Divin [...] Appointment, put over us, and that [...] our great Happiness in all matters or Ca [...] ­ses. There are several Interests in our m [...] ­serably [Page] divided Nation, and wise men may be of each Party; yet, if any such should wish ill to our gracious Monarch, or to Monarchy it self, both his Wisdom and his Honesty, were justly questionable. What Alteration of Property, the great Basis of a Nations Strength and Peace, would be upon a new Model, when Ambition an over-weening Opinion of a man's self, Co­vetousness, nay, and Prodigality too, would make many strive to be uppermost, while they brought their poor Country under the greatest Slavery?

For my part, I shall not scruple to deli­ver my self with the greatest Openness and Plainness of Heart.

The King is justly the Supream Head and Governour, in all Causes Ecclesia­stical, as well as Civil; Long may he en­ [...]oy this his undoubted Right.

Serus in coelum redeat,
Hor. Ode 2.
diuque
Laetus intersit populo precanti,
Neve se nostris vitiis iniquum
Ocior Aura
Tollat.—
Long may he live, and long in Peace command,
[Page] Monarch of Hearts, as of his native Land.
Long be it e're the Angels nigh his Throne,
By mounting up with him, leave us alone.

His Prerogative, no man or body of men, can take from him, which his excel­lently devised Negative to all Petitions and Counsels, secures. And this makes it, that the Sanction of all Laws is from the King only: for what a man does by the Advice of Counsel, he does by himself; as much as a man acts freely in those very things, in which there is the special Assi­stance of Grace, and Conduct of Provi­dence.

For fear I should not be clear enough in my Expre [...]sions, though my Heart be clear in it, I will make the learned Bishop San­derson speak for me.

He says, according to my real Senti­ments, Sanderson de obliga [...]i­one Consci­enti [...], Prae­lectio 7. p. 189. Cum dicimus penes unum Re­gem esse jus condendarum legum, non [...] ­id ita intelligendum, quasi vellemus quicquid Regi libuerit jubere id con­tinuò legis vim obtinere, nam & popu­li consensum aliquem requiri mox osten­dam.

[Page] Quin hoc est quod volumus, quod scilicet Plebiscita, Senatus consulta, cae­teraeque Procerum, plebis, aliorumque quorumcunque rogationes, nisi regia in­super authoritate muniantur, non obli­gent subditos, nec habeant vim Legis; quibus tamen maturè, & ritè prepara­tis, simul ac Regis accesserit authoritas, legis nomen, formam, & authoritatem protinus accipiunt, incipiuntque statim ac promulgatae fuerint subditos obliga­re. Cum igitur illa sola censenda sit cu­jusque rei causa efficiens principalis, & sufficiens, quae per se, & immediatè pro­ducit, & in materiam preparatam intro­ducit eam formam, quae illi rei dat no­men & esse, etsi ad productionem ipsius effectûs alia etiam concurrere oporteat, vel antecedere potius, ut praevias dispo­sitiones quò materia ad recipiendam for­mam ab agente intentam aptior redda­tur, omnino constat quotcunque de­mum ea sint quae ad legem rectè constitu­endam antecedenter requiruntur volun­tatem tamen Principis (ex cujus unius arbitratu & jussione omnes legum ro­gationes aut ratae habeantur aut irritae) esse solam & adequatam publicarum le­gum efficientem causam.

[Page] Besides this, I have, in Sincerity, sub­scribed to his Majesty's Power in Call­ing, Proroguing, and Dissolving of Parli­aments: and, this were enough in rela­tion to our present Controversie, being only of Parliamentary matters.

But in short, to offer at the Flower of all other Flowers of the Crown, the King can neither do nor suffer wrong: but, like God Almighty, dispenses his Blessings to the inferiour World, while he sits above, in an impeccable, impassible, im­mortal State. God is not the Author of Evil, nor can he suffer by the Iniquity of M [...]nkind; And, whatsoever Act preceeds from the King's Ministers, or what­ever Malice be in the Heart of any of his Subjects, the Law, that Angel, with a flaming Sword, de [...]ending his Throne, will not suffer it to affect him. Nay, if through Misunderstanding of the Law, it should happen, that a King go con­trary to his own Justice, 'tis as if no such thing had been done.

So,Plowden's [...]. i [...] he having an Estate in Taile Alien, though from a common Person, it would work a Discontinuance; yet, from him it has no Effect, because it would be a wrongful Action: Though he [Page] has more Power than any Subject, yet Subjects may be, and are more able to do Mischief.

And, for a full Proof, what Confidence the Law has always had in the King's doing nothing in his own Person, but what is highly fitting, though an effect should follow upon a rigorous Action of his; as if he should kill an innocent man, with his own hand, there never was any Remedy. And this was taken for Law, as long since, as the Confessor's time. Nor is it to be imagined, that William the First, and his Successors, re­ [...]eded from this Power, how little soever [...]hey exerted it.

In that famous Case where the Con­fessor, Tit. of Honour fo. 525. impeach'd Earl Godwin of Trea­son, 'tis urged by the great men of God­win's Party, that he could not be a Traitor to the King, because he was never [...]ied to him by Homage, Service, or Fealty. 'Tis answered, and not replyed [...]o on the other side, That no Subject ought Bellum contra Regem in appellatione [...]uâ de lege vadiare, could not lawfully demand the Battail against the King Appellant, Sed in toto se ponere in [...]isericordia Regis, but must wholly yield [Page] himself to the King's Mercy. In this Case, though the Party might prove him­self, against a Subject, to be innocent▪ yet there was no way of Tryal against the King, the Appeal being the only Tryal [...] and that required Battail: but a ma [...] ought rather to lose his Life, than strik [...] his King, to whom he owes his Protection▪ and Defence from Rapine, as the King i [...] the great Executer and Preserver of th [...] Laws.

Though this Case is of the King's ap­pealing, yet if a Subject should presume t [...] be Appellant against his King, for th [...] Death of his nigh Relation, the Reason holds, and, surely 'twould be very ab­surd, for an Indictment to be brought in the King's Name, who has Jus gladii against himself; others could not execut [...] the Judgment upon him: and, I take it no man can be compelled by Law, to b [...] felo de se.

But, what need have I to say any thing on a Subject, which every man is bound b [...] his Allegiance not to controvert?

I shall only observe, That the Disput [...] between us, can be no more than wh [...] Right one Subject, or body of Subjects has to impose upon another. Whether [...] [Page] [...]o, the Kings of England, have always had a Council in matters of Legislature, we have no Difference; the only Que­stion is, who were of the Council; but, if as 'tis argued on the other side, Te­nants in Capite were the only Council; and, if I prove, that the House of Lords succeeded to the whole Power of such Te­nants, and these can have no more than they had; he that makes the Tenants the only Council for the Legislature, takes away the King's Negative Voice: for that the Lords have, in that Jurisdiction, which they enjoy upon that old Right of the Tenants in Chief: and no King pretends to the Trouble of having a Ne­gative in matters of ordinary Judica­ture.

But, besides this which I have answer­ed, there is a Charge of being an Ene­my to the Government by Law establish'd in the Church; for which, we must consi­der, that the Government, in this Respect, is made up of the Laws, and the Offi­cers in it. For the Laws, I dispute none of them, because I acknowledge the Autho­rity which made them: and, whether 'tis advisable, that any of them be altered, I leave to the Supream Wisdom of the Na­tion.

[Page] For the Officers, I quarrel not at the Chief, the Order of Bishops, nor yet at the Ecclesiastical Jurisdiction, upon the Reason already given; and, my Proof that they have this by Law, perhaps, is Particular: truly, I conceive it to be a great Mistake, that the Statute which took away the High Commission Court, took away all Ecclesiastical Jurisdiction; for, only the part relating to that Court, is repealed; and then the first of Eliza­beth, having revived the 28th. of Hen. 8. the former Power, called Ordinary Pow­er, is left entire, being provided for by the Statute of H. 8. Which, amongst other things, Enacts, That every Arch-bishop, and Bishop of this Realm, 28 H. 8. [...]. 16. and of other the King's Dominions, may minister, use, and exercise, all, and every thing and things, pertaining to the Office or Order of an Arch-bishop, and Bishop, with all Tokens Insigns and Ceremonies thereunto lawfully belonging.

It may be said, That still I say no­thing of the Divine Right of Church Officers, and Power; but, that I may step as far as can reasonably be expected from a Lay-man, I acknowledge, that there is a Divine Right for Church-Officers, [Page] and Spiritual Power distinct [...]om the Civil.

I cannot now but hope, that I have said [...]nough to render me fit to be heard upon [...]y first Subject, in which, I have follow­ [...]d the Authority of the great Fortescue, [...]ho taught the World long since, (nor is [...]his man of Letters, too good to learn of [...]im) that in all the times of these seve­ [...]al Nations and of their Kings, Fortescue p. 38. 6. As transla­ted alrea­dy. this Realm was still ruled with the self­ [...]ame Customs that it is now govern'd with all.

Which, if Mr. Selden had taken in [...]he Genuine Sense, as meant of the Go­vernment or Constitution, which is the Foundation of all particular Laws, he [...]eed not have been at so much Pains in his Comment hereon.

If I find any thing more expected from me, either in Vindication of my self, or [...]n more fully drawing my Adversary in [...]is proper Colours, and admirable Fea­tures; the first I shall do for the sake of Truth, and if I can get as much vacant time from my Studies and Practice in my Profession, His Letter to the Earl of Shaftsbury. as it seems he has had from [...]is, I may do the other, if it be only for Diversion.

[Page] I am sensible, that want of time, or of Health, to give the finishing Strokes to this rude Draught, are of themselves but poor Excuses to a Reader, who would doubtless be content to stay till he could see some thing more correct, but when my delay would give time for so much growing Mischief as has been sent abroad, to spread it self even such an Antidote as I now offer may be accepted, till Mr. Petyt has fully prepar'd his Catholicon, which will per­suade them who have been imposed upon with Noise and Nonsense, to shew their Indignation at their own and their Teach­ers Credulity.

'Twould be Vanity in me, to run the Parallel between our Author's Magisteria [...] Assertions and my Proofs; but he glo­ries much in taking all from the Fountain head of Original Records, whilst I tru­ly am thankful to those Friends that communicate to me Transcripts, so faith­ful, that even he himself cannot pick an Hole in any of them.

The Records of the Tower, and of the Exchequer, I gratefully acknowledg [...] to have been received from the benefici­al Industry of my ever honoured Friend Mr. Petyt; and the true Copies of [Page] Dooms-day Book, are owing to the wor­thy Knight, Sir John Trevor, and to the learned Gentleman, Mr. Paul Bowes, of the Temple, whose Father was Executor to the indefatigable Antìquary, Sir Simon D'Ewes.

And, surely no man need be ashamed of such Assistances.

Thus, like the old Roman accus'd of [...]nriching himself by ill means, have I [...]rought before my Judges, the innocent In­ [...]truments of my small Improvements. Is [...]here Witchcraft in any of these?

A CONFUTATION OF AN IMPOTENT LIBEL Against the Government, By King, Lords, and Commons; Under Pretence of Answering Mr. Pe­tyt, and the Author of Jani Anglorum facies nova.
Ne Sutor ultra crepidam.

The INTRODVCTION.

'TIS, doubtless, a brave thing to attempt heroick Mischief, to insult over the Ruines of a well framed Govern­ment, at least, though but in Appear­ance, to venture upon the Design of [Page 2] altering it, with Jesuitical Boldness, how much soever is wanting of their Subtilty. Fame is as careful to preserve the Memory of him that burnt, as of him, or them, that built Diana's Tem­ple; nor is Mr. Petyt more likely to live in the Records of future Ages, for giving new Life and Lustre to so many of the past, than our State-Physitian for poysoning those sacred Fountains with his Exotick Drugs. 'Tis not to be doubt­ed, but late Posterity will admire the excellent Composition of that Clyster, whereby he would purge the Body Po­litick, from the Chronical Disease of Liberty, and oppressing Load of Property.

Since he has thought fit to Out-Law all the English, and to give them Lupina Capita, put them out of all Protection and Security, he must not look for much Respect towards his voracious Cubs; which like the Cadmean Crue, were born fighting with one another▪ they would, like Phoraoh's lean Kine, devour the Fat of the Land, and must needs require a great deal of Nourish­ment, since they have so long been float­ing in his watry Brain, without any sub­stantial Food.

[Page 3] Indeed, he himself, in great Measure, played the Executioner upon his own Follies, and condemned them for some time to the dark; being, as he says, in his Letter to a noble Peer, Doubtful whether they should be published, as is usu­ally done by unlawful Births, he en­deavoured to stifle them; but finding it not improbable, that they might with Justice be represented as dangerous and monstrous, he has let them live, to his Reproach.

CHAP. I.
That he mistakes the Question, and con­tradicts himself, to the yielding the whole Cause; nor, is a greater Friend to Parliaments, than to common Sense.

IF notwithstanding all this huffing Au­thor's mighty Bustle, I evince,

1. That he mistakes the Question.

2. That he contradicts himself, and that sometimes to the yielding up his Cause.

[Page 4] What will the World say of his Knight Erranty, in Antiquities, and no­ble Design to rescue the Virgin Truth from the enchanted Castle of groundless and designing Interpretations, P. 1. Against Mr. Petyt. for himself to deflour her.

I must be excused, if some of his Contradictions are suffered to fall in here, since I can hardly represent any Notion of his without them; but, I will keep all out from hence, which relate not to his Mistake of the Question.

SECT. 1.

THE Controversie between us, is of Right, whether or no, the Commons, such as now are represented by Knights, Citizens, and Burgesses, had Right to come to Parliament, any way, before the 49. of H. 3. except, in the fancy'd way of being represented by such as they never chose, Tenants in Capite, by Military Service.

Mr. Petyt, in my Judgment, proves that Citizens and Burgesses had Right to come by Representation; and I, that Proprietors of Land, as such, had a Right to come in Person, before that.

[Page 5] The Fact is used by both of us, as a means to prove the Right: Acts of Par­liament, as now called, and King's Char­ters, as of old, are also insisted upon; and even the Records and Histories pro­duced to vouch the Fact, are, for the most part, yielded us; so that the Que­stion upon positive Laws and upon Te­stimony, is, either whether Right can arise out of any Fact, or else, it is mat­ter of Right and Reason; what Sense ought to be put on the Words of the Witnesses to the Fact, or any of them, as is made out by an ordinary In­stance.

Suppose a Witness in a Cause, swears to a matter of Fact, and his Credit is not denyed, but the Question is, in what Sense we ought to take his Words; here Reason must determine the Fact, by considering the Coherence of his Dis­course, and the several Circumstances which explain it. And, this we are taught,His Glos. by our doubtful Oracle, or ra­ther, by Apollo himself, when 'tis told us, that the meaning of fideles, &c. is to be known from the subject matter; yet,Against Jan. Angl. facies no [...]a. p. 1. for all this, forsooth, The Controversie is of matter of Fact only. Indeed, an Act of [Page 6] Parliament is matter of Fact, if 'tis dis­puted whether 'twas made or no; but if we argue, that such or such is the In­tendment of it, we shan't try this by a Jury, or any Judge of Fact.

And the Right which arises from thence, is from the Meaning, and the Reason of the Statute, as well as from the Fact, that it was made.

It will be said, Why do you stand upon Niceties? His meaning is no more than that he yields the Right, if you prove the Fact.

But, how can that be, when he de­nies a Right, even to his Favourites, the Tenants in Capite, though he supposes, that de facto, they came all along? Tho they came before the 49 of Hen. 3. Yet the House of Lords (and the whole Great Council, was before that, but an House of Lords) was a new Constitution in the 49th of H. 3. and had it's Origine from that King's Authority. Against Mr. Petyt. p. 228. & 229. p. 110. then a new Go­vernment. And, after that, though de facto, Lords came as Lords, yet, ever since the 49. H. 3. it was not out of Right, for 'twas at the King's Pleasure; and so 'twas with contracted Bodies of Tenants in Capite, who pre­scribed to a Right from before the 49 [Page 7] and if they came were Lords (for you must know, no Commons then were ever at the Council) But the King and his Privy-Council, might give them a pre­sent Right if they pleased, or with-hold from any the Writ of Summons, and deny their Rights in legal Practice, tho a Parliament was to be held.

In fine, the Kings of England, de fa­cto, used to suffer Tenants in Capite, to come to their great Councils; but, the Right is deny'd even them who only had that Permission.

But,Against Jan. &c. p. 66. and 67. does he not own the Fact with us expressly, in the 48. of H. 3. and yet goeth to set aside the Right, by giving an Account of the History, and Occasion of it?

Our Champion not only denies, that the Commons had any Share or Votes, &c. in making of Laws for the Govern­ment of the Kingdom, &c. unless they were represented by the Tenants in Capite; but, vouches the name of Sir Henry Spelman, to prove, that 'tis of Right, Ex ipso jure [...]eodali, that the Tenants in Capite, should represent the rest. In this Case, [...]e may admit us all the Fact of coming to the great Councils; and yet, the [Page 8] Right would have been against us, as long as the Feud remained; that is, till the twelfth year of his present Majesty, when the Feudal-Right, as set forth by our Opponent, ceast. So that not only the Fact within the Compass of our dispute, would have been insignificant, but no Fact since, to this very day could prove any Right, the Right of sit­ting in Parliament, having been, ac­cording to him, wholly Feudal, if any no Statute giving a new Right to any [...] elect, (as I shall shew) since the time when he places in the King's Tenants in Chief, by Knights Service, all that Right of Elections, which was suffered between Subject and Subject. Where then is the Right at this day,Vid. Pref. in any Com­moners to come to Parliament? Nay, in any Lords, upon the Grounds which I have already expos'd?

But, what if in our Dispute about an­cient Testimonies, we have granted us those very words which we contend for,Against Mr. Petyt. The Commons &c. were not introduced &c. before [...]. H. 3. That is not once, if the Que­stion be only of Fast. as Evidences o [...] the Fact; nay, and our own Sense too, to be on Record admitting, that Right may a­rise from one Fact well pro­ [...]ed [Page 9] what Question then remains? Why then 'tis purely of Right, Vid. infra fideles. and that [...]s, whether our Delian Apollo has not Right in his floating Island, to set up Matthew Paris above Record, if it were only for this Reason, that he speaks [...]ore oracularly and doubtfully than the Records.

Is it not granted, that the Fact is on our side, by such Authority as he would advance above Records, and that in re­ [...]ation to his belaboured Conquest, when [...]e says, that the mistaken Notions, (that [...]s, those which are contrary to his) of the Conqueror's Title, Laws, and Govern­ment, Against Mr. Petyt. p. 43. were devised by the Monks and Cler­gy-men-Lawyers.

Nay, is not the Right of Conquest it self, as merely such, made a Question by himself? For, he asks whether any man can forfeit, that is, justly loose his Lands to a Stranger, a Conqueror, that could not pretend Title, but by Violence and Conquest?

Justly to loose, and to forfeit, must here be reciprocal, to vest a Right in a Conqueror; for, if the Vanquish'd loose not their Right of Reprisal when 'tis in their Power, 'tis not forfeited, and, if [Page 10] 'tis not forfeited forisfacta, made an [...] thers by Right, 'tis not justly lost; nay 'tis not lost at all, only forcibly with held.

Is it not in effect yielded us, that the Commons have ever, of Right, been A­ [...]senters, as well as Petitioners, and tha [...] from before the 49. of H. 3. For, h [...] yields the Word Ever, to be in the Par­liament Roll: nor does he tax the Cle [...] with any designing Addition to the Re­cord; but, which serves not his Tur [...] he says,Against Mr. Petyt. p. 134. 'twas ever since they were a third Estate, or a Member of Parliament.

A goodly Discovery, that they wer [...] a Member ever since they were a Mem­ber; but, do they not plead, that they were ever a Member, that is, immemo­rially? If they had prescribed to this ever since the 49. of H. 3. he might have triumph'd; but, even in his Sense, nei­ther Fact nor Right is controverted, be­cause, for ought he says here, they might ever have been a third Estate, And, if Burgesses, whom, though Te­nants in Capite, I shall take for Commons, (which, to be sure, with him had as great, if not greater Right than any not so holding) could not make that Claim [Page 11] matter of Right, in the 8. of E. 2. but at at least it might be overthrown for [...]eason of State: how came it to pass, [...]at the whole Body of Commons did it [...]en, without Check from the King, or [...]s Council, whom he makes very igno­ [...]nt of the Prerogative, or so fearful of [...]eming to assert it, that they durst not [...]me it, though, perhaps, the Lords [...]ere all likely then to have joyned in [...]e throwing them out; and, this at a [...]me, when we are told, the Commons [...]ere little, inconsiderable Fellows, and [...]ore the Lords Livery Coats?

That more than Tenants in Capite, [...]ere present at the great Council, when King John's Charter was made, I do not [...]nd that he controverts; and indeed, [...]ow can he? There having been, that [...]rmy which was too powerful for their [...]nhappy King, and the Londoners in great Numbers, who, I take it, used [...]o come more contracted; but, he denies that more than Tenants in Capite were Parties to the Laws; whether they were de facto is to be proved by Reason. And he urgeth, that the Laws were made only to Tenants in chief, which indeed would be a Demonstration, that none [Page 12] but they were Parties, but, that mo [...] were, I shall prove under a distinct he [...] of his Contradictions.

SECT. 2. His Contradictions.

(2.) MR. Petyt, whom I cannot b [...] call judicious, notwithstan [...] ­ing, the Interdict had asserted, that t [...] Commons, such as are now represent [...] by Knights, Citizens, and Burgesse [...] were always of Right, an essential pa [...] of the great Council. I joyn my Suffrag [...] and for Proof, alledge that King John Charter, does not constitute the Tenan [...] in Capite, the only Members, but leavin [...] to all the Villae, their Liberties and fr [...] Customs. If the Inhabitants, even Parishes, came to the great Council [...] without Consideration of this Tenu [...] in Capite, their Right was sufficiently secured, under the word Villae.

Now, what if all this is oppos'd onl [...] out of a Spirit of Contradiction, and ou [...] of the same Spirit, he contradicts him­self, and answers the Character, which the inimitable Cowley gave of Envy [Page 13] —which begun,David [...] [...]nvy at the Praise her self had won.

[...]he Villae, I say, signifies Towns and [...]shes too, as distinct from the Bur­ [...]s; to be sure, not the Habitations [...]nants in Chief only, whom our Op­ [...]nt argues to have been the only [...]sentatives of the Commons, if they [...]any, till the 49 of H. 3. But to de­ [...] my Notion of the Villae, he cites [...]eton, to prove, either that every [...]s the same with a Burrough, or else, [...] taken as different from a Bur­ [...], (and indeed here are Burgi & [...]) they must be small Towns incor­ [...]ed, not holding in Chief.

[...]ttleton's Words, from which I have [...]eason to dissent, are these, Chescun [...] est un Ville, Against Jan. p. 7. mes nemy e converso. [...] he translates, Every Burrough is a [...], but not e converso. Now, if from [...]e infers, that every Town is a Bur­ [...], his Argument is thus, every Town [...]urrough, because every Town is not [...]rough. A man of the weakest parts [...]ell us, a thing is so because it is; [...]e is a wise man indeed, that can [...] it to be so, because it is not so.

[Page 14] Well, but 'tis a Town incorpora [...] and to strengthen his Argument, produces Writs of Summons to Vills, which, if he argues at all, sh [...] That he allows the free Customs, more than Tenants in Capite, to com [...] Parliament, to be hereby provided under the words which I insist on.

But, pray did Littleton explain [...] self, that none but Towns incorp [...] were Vills? Oh! but it must be What Liberties? What free Customs common ordinary Towns and Parishe [...] enjoy? Against Jan. An­glorum &c. p. 7. What municipal Laws? Wha [...] vate Laws and Priviledges? Alas! I have no Laws whereby they enj [...] any Lands;If others had Land, they were free from the Feudal Law. for, the Laws were bro [...] in by, and exacted upon only the [...] mans themselves, who all held in [...] by Knights Service too;Against Mr. Petyt. p. 43. and [...] could not have had so much as p [...] Customs, or By Laws; neither ha [...] other Incorporated Towns any: for are not within the Charter of Libe [...] which was to Tenants in Capite What says Fortescue to all this? can he answer't, when he make [...] the Genus to all Divisions under Hundred? So that either a Bu [...] [Page 15] corporated Town, other Town, and a [...]arish, Vid. the Franck­pledge in every Vill. Vid. etiam Jan. Angl. or Village, may be a Vill mes ne­ [...]e converso. But, is it possible, that [...]ortescue can gain Credit, when such an [...]thor says the contrary? However, [...]'s hear him, for methinks the man [...]oks as if he had some weight in him.

Hundreds are divided into Villages, Fortescue de laudibus Legum An­gl. p. 52 [...] [...]der which Appellation, are contained [...]rroughs: and by Burroughs must be [...]ant such as held in Capite, Towns in­ [...]porated, without such Tenure, or not [...]orporated, or else these were no Divi­ [...]ns within an Hundred: And, to be [...]e an ordinary Village is a Village, here Burrough is made the Genus to all [...]wns, but not to Villages, but as he [...]ws wherin a Village consists, it whol­ [...]roves to my mind.

For the bounds of Villages are not con­ [...]ed within the Circuit of Walls,p. 52. b. Build­ [...]s, or Streets; but within the Compass Fields, great Authorities, certain Ham­ [...], and many other, as of Waters, Woods, [...] Wast-grounds, which it is not needful set forth by their Names.

Here, not any one of the Particu­ [...], seem necessary to be added to the [...]er, unless all must; but, even a cer­tain [Page 16] Compass of Fields or of Woods, [...] make a Village, without any great A [...] ­thorities; and, within that space, mig [...] be certain free Customs, which the Ow [...] ­ers enjoy; nay, though not inhabitin [...] And, for an Evidence of our Autho [...] great Love to Truth, he observes [...] what is said in the Comment upon th [...] very words, which he cites out of [...] ­tleton, 1. Inst. fol. Villa ex pluribus mantionibus v [...] ­mata, & collecta ex pluribus vici [...] And, if a Town be decayed, so as no [...] ­ses remain, yet it is a Town in Law.

But what need I resort to forei [...] Proof, when in effect this is granted my hand.

For, Against Jan. &c. p. 61. ib. p. 63. King John's Charter and Ki [...] Henry the Third's were the very same.

King Henry the Third's, was but [...] ­ward the First's; and Ed. 1. in the [...] of his Reign rather explained or enlar [...] that Charter of King John, than c [...] ­firmed the Charter of H. 3.

Well, to be sure nothing of S [...] ­stance was left out; So that the Rig [...] of coming to Parliament, (which inde [...] could not be omitted out of the Ch [...] ­ter of all the then Liberties and Rig [...] of the Subject) were included in [...] [Page 17] Charter of Ed. 1. Wherefore, in those [...]imes, and in Henry the Third's, if the Charter were in his time made and con­firmed, with that Omission of the Te­ [...]ants in Chief, as not material, the Rights of all were comprehended under the Li­ [...]erties and Free-Customs of the Civitates, Portus, Burgi, & Villae, being from the [...]9. H. 3. (by the 25. Ed. 1. to be sure) he Villae, the Inhabitants holding Free- [...]ands in any Village or Parish, came by Representation.

So that in the Charter of King John, Villae must signifie inferiour Towns or Parishes, as well as in the 25. of Ed. he First.

But,p. 64. 'tis an absurd Supposal, that by he 25. of E. 1. the Constitution was not [...]etled, even though himself says, that the House of Lords was constituted before, [...]nd that a new Government was not on­ [...]y framed, Against Mr. Petyt. pa. but set up. Nay, I shall prove, [...]hat the Representations of the Commons, were then setled: but to urge almost he same Argument from other words of his.

If Hen. the Third's Charter, accord­ [...]ng to Matthew Paris, p. 62. on whom he [...]elies, in nothing differs from King [Page 16] [...] [Page 17] [...] [Page 18] John's,As I have seen in se­veral Manuscripts of great Antiquity, (af­firming that they were some 2. aud some 9. H. 3.) and which the Charter inrolled, 28 Ed. 1. proves beyond Dispute. and yet in that of Hen­ry the Third, the Clause rela­ting to the Tenants in Capit [...] is left out. Is it not Demon­stration to him, that the Right [...] of small Towns and Parishe [...] were preserved by the general Words I insist upon? And that according to the Sense of the Charter 15 Ed. 1. when the Commons were no [...] obliged to be represented by Tenants i [...] Capite only, (he himself contends for no [...] more than the Fact, that sometimes mo [...] of the Knights for the Counties, we [...] such as held in Capite, by Knights Service.

But why was not Henry the Third Confirmation of King John's Charter, [...] much the Charter, or Grant of H. 3. [...] Ed. the First's Confirmation made it hi [...] Charter? So that here is another Contra­diction. if he insist upon it, that it was not as properly the Charter of Hen. 3. as Ed. 1.

And in Truth, Henry the Third's was most properly his, since he granted it, not as a Confirmation of King John's Charter, but as the Liberties which were in England, in the time of his Grand-father, Hen. 2. For, although the King [Page 19] says,Ma. Paris 305. [...] Omnes illas libertates juravimus, which, I take it, referred to the Con­firmation 20; yet one of his Coun­cellors insists upon it in the King's name, that they were extorted by Force from King John: (for his Charter they required, or what was therein contain­ed) Upon this Habilo Conc [...]io, mature Advice being taken, and that of the great Council, for that at least consented [...]n not opposing, the King sent his Pre­cepts to the Sheriffs throughout the Kingdom, to cause an Inquest of twelve Knights, or else, of twelve lawful men, [...]hat is Free-holders to be return'd,12 Milites, vel legales homines. out of every County respectively, concern­ [...]ng the Liberties which were in Eng­ [...]and, in the time of King Henry, that King's Grand-father.

The Charter mentioned by our Ad­versary, was 9. H. 3. And, so after this Tryal, the Precept for which, was [...], indeed, the actual Confirmation of what they found, or Judgment up­on it, was not till two years after: [...]ut, then the Clerus & Populus cum Magnatibus: where, by the way, the Populus could not be the Magnates; [...]he Inferiour Clergy and Laity, with the [Page 20] great ones, go on upon their former Issue, and would give no Supply to the King's Wants, till he would grant Pe­titas Libertates, the Liberties they had before sued for, or demanded: not barely as a Confirmation of King John's Charter;M. Par. Supra p. 305. but, indeed these very Liber­ties which they pleaded to have been such in the time of H. 2. The Denial of which, occasioned the fighting for them against King John, were, in Substance, no way different from the Grant made by King John, in Affirmance of the Common Law. And, so the Charter of H. 3. was in nullo dissimilis, to King John's; and, if there were any Diffe­rence, the Clause by which the great Priviledge of Tenants in Capite is argu­ed for, being omitted, 'tis a Sign, that admit it constituted them a full Parlia­ment, this was not their Right in the time of H. 2. nor return'd so to have been, but was the only thing extorted by Force, and fell with it.

This were enough to set aside all his Arguments, nay, and that Language too, which serves instead of them: but, I cannot deny my Reader and my self, the Pleasure of observing him more par­ticularly, [Page 21] and if it may be, of know­ing him, intus & incute.

His two main Designs (if he be steady to any, but to contradict right or wrong) are,

(1.) To prove that William the First took away from the English, their Estates; [...]nd as he imposed the Tenures and Man­ [...]er of holding our Estates in every respect, so he did all the Customs, incident to those Estates. The Customs, I thought, had been within the Manner, but let that go;Des Cart. Principiae Phil. p. 17. Per modos planè idem intelligi­mus, quod ali [...]i per attributa, vel quali­tates, &c. the Manner implies the Quality (as he might have been taught long since [...]y Des Cartes) this extended to all the Estates derived or come to any now; [...]nd, yet in the very same page, 'tis but most of them being feudal, not all. I have already shew'd his Denyal of the Con­ [...]ueror's Right to take any: and, thus [...]his Mountain is finely brought to Bed by the Dr.

(2.) (As a Consequent upon William's dividing the Land amongst his Follow­ [...]rs,) he would shew that this King's Grantees, and that in Capite by Knights Service, were the only Members of the Great Councils; Against Mr. Petyt. p. 2. and that no others had any Communication in State Affairs, unless [Page 22] they were represented by the Tenants i [...] Capite:Against Jan. &c. p. 12. In another place, No doubt but the Tenants in Capite, were the General Council of the Nation. If therefore, he own that there were Councils more ge­neral than such as were compos'd of Tenants in Capite only, does he not yield the Cause? Not to repeat his Con­cession for Towns incorporate not holding in Capite, he yields it for single Persons, who still held not by that Tenure.

In many places he grants,As p. 112. That all the Nobility of England met to treat with the King, Against Mr. Petyt. p. 131. (or to the like purpose.) Far­ther, that the Baronage or Nobility, in­cluded the Tenants in Capite, and suc [...] great men as held of them by Military Tenure; So that in effect, if the Tenure, or as he expresses himself, A Tenemen [...] or Possession, Glos. p. 10. neither added to, or detra­cted from the Person of any, if free o [...] bound, according to his Blood or Extra­ction. An ordinary Free-holder, in free or common Socage, might as well have been provided for, as to a Right in co­ming to Parliament, as a Tenant by Knights Service, of the King's Tenant in Chief. But, he tells us, then the [...] must be great men, holding by these [Page 23] Services. But to shew that he insists not upon this, finding a vast number of men at the passing of King John's Charter, which was, Inter Regem & liberos homi­nes totius regni, Glos. p. 26. he yields, that the Reti­ [...]ue and Tenants in Military Service, were Members of the Council: though, upon second Thoughts, he tells me, these liberi homines were the same which [...]he King calls, in his Charter, Liberi ho­mines nostri. Against Jan. &c. p. 9. These Liberi homines nostri, were Tenants in Capite.

So that the Tenants of Tenants in Ca­pite, were Tenants in Capite; and this, suppose, explains that Passage, where [...]e says, Against Mr. Petyt. p. 176. Whoever held of the Tenants in Capite by mean Tenure in Military Ser­vice, held of those Barons or Tenants in Capite by the same or like Tenure that themselves held of the King.

That is every▪ Tenant by Knight's Service, of the King's Tenant by Knight's Service held in Knight's Service (which [...]dentical Proposition, I heartily thank [...]im for) or else, every such Tenant of [...]he King's Tenant in Capite, held of the King in Capite, that is immediately, and [...]ot immediately, in the same respect.

[Page 24] But, these Tenants of Subjects, such as were Members of the great Council were, however, concluded by the Acts of their Lords, Against Mr. Petyt. P. 113. They that held of the Te­nants in Capite by Knights Service, were bound by their Acts, viz. The Acts of the Tenants in Capite; that is, These Tenants were Members of the great Council, and no Members, as their Lords, represented them, and yet did not represent them but they came themselves.

But, to be sure, none but Tenants by Knights Service, who were Homagers and sworn to obey their Lords, as the ordinary Free-holders were, to keep the Laws and defend the Monarchy,Jurati fra­tres-franck-pledges. and the Peace of the Kingdom, were, in his Sense, bound by the Acts of their Lords: So that there was a necessity for the Bull and Multitude of Free-men or small Free-holders, Glos. p. 31. to be bound with Sureties to their good Behaviour, in such manner as the Law had requir'd amongst themselves; otherwise, the Government could not secure it self against their Violations of the Laws; they neither meeting in the Great Councils, nor being bound by the Acts of such as met, any more than the Tenants in ancient Demeasn, when [Page 25] they have not been called to great Coun­cils.

This Author is pleased to say, p. 99. It can­not be thought that the King ever wrote to all the Knights and Feudataries of England, Pat. 15. Jo. p. 2. M. 2. n. 9. Rex Baronibus mi­litibus & omnibus fideli­bus totius Angliae. These Fideles were the Kings Tenants in Capite. Glos. p. 16. to meet in a great Council, &c. and therefore, what­soever the words of the Writ are, the Design of it was to convene such only, as had usually in those [...]imes been called to great Councils, which were the Tenants in Capite, though no Ba­rons.

That is, in effect, the King never wrote to all the Knights and Feudata­ [...]ies, yet he did; for he conven'd his Tenants in Cheif, though no Barons.

'Tis manifest, he speaks here only of the King's Feudal Tenants, for he avoids [...]he largest and most comprehensive Sense of Fideles, which, (as he informs us there, [...]nd in his painful and partial Glossary of some half a score words) may be ta­ken for Subjects in general, and restrains [...]t to such as were Tenants in Capite.

But, he says, 'tis not to be thought, that all the Fideles, in the restrained Sense, had the King's Letters or Writs; yet, in the same page, with an antick [Page 26] Face, p. 99. he tells us, they, the Tenants in Ca­pite, though no Barons, were all summon­ed by particular Writs.

And this he learnedly proves by the irrefragable Authority of King John's Char­ter,p. 100. which gives the Tenants in Capite that were no Barons, a general Summon [...] only, even as he himself translates the words.

I'll appeal to all but him, whether he does not only yield the Right which he opposes in the Sense which he puts upon Fideles, but gives more than any reaso­nable man will insist upon; for I know [...] not that it has been urged for more than Free-holders.

But whereas he tells us, That the word Fideles, of which there has been so late mention,Glos. sometimes is taken [...] Subjects in general; in another place, he gives us to understand, that the mean­ing of this word. Fideles, as also of these words Liberi homines liberè tenentes▪ &c.p. 17. is to be known from the Subject-matter▪ where they are used.

Wherefore, if such Grants were made by these, as Feudataries only could not charge, then others were Parties, tho [...] not in his large Sense. That such there [Page 27] were, we have the Authority of Bra­ [...]on, Jani Angl. facies nova. p. 1. as has been before observed, tho [...]he Dr. thought it not worth his no­ [...]ce.

Sunt quaedam Communes praestationes [...]ae Servitia non dicuntur,Bract. lib. 2. c. 16. p. 37. nec de consue­ [...]dine veniunt, nisi cum necessitas interve­ [...]erit, vel cum Rex venerit, sicut sunt hi­ [...]agia, corragia, carvagia, & alia plura de [...]ecessitae & consensu communi totius reg­ [...]i introducta.

Which are not called Services, nor come from Custom, but are only in case of Necessity, or when the King meets his People, as Hidage, Corrage and Carvage, and many other things brought in by Necessity, and by the [...]ommon Consent of the whole Kingdom.

And the Carvage, which is one of the [...]hings mentioned by Bracton, we find [...]ranted by the Magnates & fideles; Rot. Claus. 4. H. 3. m. 2. Con­ [...]esserunt nobis sui gratiâ communiter omnes [...]agnates & fideles totius regni nostri do­ [...]um nobis faciendum scilicet de qualibet ca­ [...]catâ &c. duos solidos.

But farther, if I may be so bold, he [...]ells us, by this Law, meaning King [...]ohn's Charter,p. 100. the way and manner of [...]ummons to great Councils was setled; So [Page 28] that for the future,p. 101. the Summons should be by particular Writs to every great Baron and in general, to all Tenants in Capite [...] by Writs directed to the King's Sheriff [...] and Bayliffs.

Yet for all this plentiful Concession [...] that here was a Right setled by Law, he had before, as much as in him lay, over-thrown it, and destroyed the whol [...] Foundation of Parliaments, by a wis [...] Answer to the Record of 8. Ed. 2. wher [...] St. Albans, as holding the Chief, plead [...] it's ancient Right to come to the grea [...] Councils; and alledges, that the name [...] of it's Representatives, appear in th [...] Rolls of Chancery. The Answer per Con­cilium, is,

Scrutentur rotuli &c. de Cancellariâ, temporibus Progenitorum Regis Burgense [...] praedicti solebant venire vel non, & tun [...] fiat justitia vocatis evocandis si necesse fu [...] ­rit.

This I find thus translated.

Let the Rolls of Chancery be search'd if in the time of the King's Progeni [...] ­tors,Against Mr. Petyt. p. 78. the Burgesses aforesaid used to come, or not, and then let them have Justice in this matter; and such a [...] have been called, may be called if ther [...] be necessity.

[Page 29] Though I am informed by such as [...]nnot but know it to be so, Against. Jan. &c. p. 111. that this migh [...] man of Letters, has been drudging at [...]ecords these sixteen years; yet I do not the least, wonder at his Ignorance in [...]em, since he laid not a Foundation at [...]hool, by learning Latin, as he should [...]ve done; nor has Stepdame Nature [...]dued him with Sense to understand

(1.) Can he pretend to Latin, and [...]t translate Vocatis evocandis, such as [...]ve been called may be called? The [...]st Rudiments would have taught him, [...]at it signifies, They being called that [...]ght to be called, or such Persons and [...]hings as ought, Parties, Papers, and [...]ecords.

And if he had look'd into the Parlia­ [...]ent Rolls of that very Year,Rot. Parl. 8. Ed. 2. n. 261. 247. he would [...]ve found Vocatis vocandis, or Vocatis [...]i fuerint evocandi, (which was used, it were, to prevent all possible Blun­ [...]rs) the usual form of directing Try­ [...]s.8 Ed. 2. n. 105. Sometimes 'twas, Vocatis partibus [...] auditis eorum rationibus.

(2.) But, can he pretend to Sense, [...]o shall think, that when Justice is to [...] done, still 'tis left to Will and Plea­sure, [Page 30] with a may be? Or, that when Right is grounded upon any particul [...] Reason or Fact, which only is questi­on'd, the Right would be in Question [...] though this very thing were proved▪ How comes the Search to be directed as the only means of deciding it?

Oh! but 'tis si necesse fuerit. I take [...] this can be no more, than that if after the Rolls were search'd, farther Trya [...] or the hearing the Parties, Reasons, an [...] Enforcements of the Fact, were nece­ [...]sary, they should be called.

To which Sense, Records of the same year, give full Authority.

Mandetur Thes. & Bar. de Schacca [...] quod vocatis coram eis Collectoribus inf [...] & inquisita contentis in petitione si necess [...] fuerit plenius veritate,Rot. Parl. 8. Ed. 2. n. 204. so n. 241. faciant inde conque [...] rentibus justitiam.

But more direct.Rot. Parl. 8 Ed. 2. n. 210.

Et si necesse fuerit quod Nicholaus [...] la Benche, & Hugo D'aule junior, [...] centur tum vocentur & audiantur ibiden [...] ▪

But to Partiality, Against Mr. Petyt. p. 79. hence 'tis clear, [...] King and his Council were equally Judge [...] when it was necessary to call them, and [...] them to come, as they were of their Right and Pretences to come.

[Page 31] The King being sole and absolute [...]udge of the Necessity of calling Parli­aments, he makes the Calling such as [...]ould prove their Right according to [...]aw, to come as often as his Majesty [...]all please to call a Parliament, to be [...]s much at the Disposal of the King, as what is his undoubted Prerogative, or [...]lse he denies the King's Prerogative, [...]o call Parliaments at his Pleasure, if he [...]o not contend that he may leave out [...]ose who had, with him, the greatest [...]ight, Tenants in Capite, from the Par­l [...]amentary Summons. And this being [...]rescribed to, from before the 49. of [...]en. 3. between which time, and the 6. of King John, there was no Altera­ [...]on in the Way or Right of coming to [...]arliament. How can he free himself [...]om contradicting that Way and Man­ [...]er, which he says, was setled then?

If to evade it, he say, Though 'tis a [...]ight according to the common Rules [...] Law, yet 'tis supersedable by Prero­ [...]tive. I suppose my Superiours will give [...] an Answer, if upon this Account it [...]ill be no Contradiction; however, [...]e have enough to make us laugh while, at other Particulars.

[Page 32] And thus has our Author, like ano­ther Don Quixot, encountring the Wind­mils, been miserably mawld with hi [...] own Whymsies, returning too quick up­on him; nor can Sancho Pancho hi [...] Squire, afford him any great Assistance [...] by curing some literal Mistakes, The Book­seller to the Rea­der. which are but outward Scratches, while the in­ward Bruises remain.

CHAP. II. Of the Reputed Conquest.

SECT. 1.

HIS Notions of the Conquest, whether more absurd or false, I cannot say fall now under Consideration; bu [...] good man!Against Mr. Petyt. p. 43. fearing least that might [...] too far improved, he says, this doth no [...] directly reach the Controversie between us.

Indeed, if it were only about th [...] Members of the great Council before th [...] time, (for he takes in all the time be­fore, as far back as Mr. Petyt, whom [...] laughs at for it) I will grant that th [...] [Page 33] were not to the purpose. But what ac­count can be given, why the Folck-mote [...]held at one certain time in the year, when all the Bishops in the Kingdom, were to meet together, about the great Affairs of the Kingdom, with all that [...]ad any Property; such as were to find Arms, according to their real or personal Estate, should, of a sudden, without a Conquest, be turn'd into an Assembly of [...]he King's Tenants, upon the old legal Title, I cannot comprehend.

If William the First divided all the [...]ands of the whole Kingdom, then 'tis [...]ot probable, that others than they who derived from under him, should have had any share in the Government.

But if he did not thus act like a Con­ [...]erour, how is it to be imagined, that [...] old Socagers had nothing to do in [...]he Great Councils?

Nay, upon another account, this is [...]eedful to be considered; for, as a Con­ [...]uerour, p. 39. we are told, he made all the [...]ree-men of his Kingdom, Tenants in Military Service: But if he was no Con­ [...]uerour in this Sense insisted on, then [...]ere must be a vast number of Proprie­ [...]rs, that could not be any way bound, [Page 34] but by their own free Act or Consent, express or naturally implyed, in yield­ing to be represented.

SECT. 2. That he is so far proving the Title of William the first, by Conquest, that he makes him an Usurper all along, proved by the History of the Conquest, compa­red with what he says about the Titles of William 2. and Hen. 1.

I would fain ask a serious Question or two, about this same Conquest.

Had not William many Sharers in his Victories? And can Mr. Dr. with all his Art, and the Help of the Tutelary of a certain Profession Madam Cellier, dis­cover at the Birth, which came from Conquering, which from Vanquish'd An­cestors?

I'll take it for granted, King William conquer'd not all alone, Sampson himsel [...] could not have done it, even with his wonder-working Jaw-bone.

But pray Mr. Dr. spare me another civil Question; Do not you your sel [...] make an Vsurper of your mighty Con­querour, [Page 35] who swallowed all the Land of the Nation, or devoured it between him and his Myrmidons?

You, p. 35. in effect, yield that his Title was by Election, by reason of the Facti­ons amongst the Saxon and Danish Nobi­lity and People, the Pope's Encouragement, and siding with William, and the Inclina­bleness of the Clergy to his Cause.

You might have added, that before his Entrance, many Normans were set­led here, in Power and Property.

It being thus, William the Second, who you say,p. 51. had a Title by his own Sword, and was chiefly assisted by the English, p. 54. and Henry the First, who cajold the great men and the Army, had the same kind of Title with your mighty one. Nor is there weight in the Objection, that there was so small time between the Death of one, and crowning another King,p. 60. that it was not possible for the Cler­gy, or all the People of England or any that represented the People of England to be at the Consecrations and Coronations. Because whoever has had the Crown set on his Head by them that could meet upon the Occasion, unless there had been a very powerful Interest or Faction against him, [Page 36] has generally been owned for King, and had a tacit universal Consent.

Besides, all the Nation was not pre­sent, when William the first was crown­ed, any more than they were, when he gain'd the Victory over Harold; and therefore, if these two Coronations are set aside as factious, so many the other, and so it must be. For,

An Election is or ought to be,Against Mr. Petyt. p. 51. a free, so­lemn, deliberate, sober, sedate, and the Lord knows what Act of the whole Peo­ple, (where they have a Right,) where­by, the major part of them do choose this or that Person, or Thing, for such or such Ends and Purposes, and not an undermining, crafty, cheating and forcible Act of a Par­ty or Faction, for the setting up this or that Person, or using this or that means, for the obtaining their own Designs and Purposes. Let him, I say, consider, and make a dif­ference between these two Acts of the whole People and a Faction, and he may easily make a true Judgment of all the pretended Elections of our English Usurpers, and all other Traitors whatever.

How easily may this Rule be applyed to the first William, Against Mr. Petyt. p. 35. whose Success was facilitated by the Factions among the Sa­xon [Page 37] and Danish Nobility and People, as our Opponent confesses; besides, the Fa­ction raised by the Pope for him, and by his own Country-men, who were here before, and could not but be very bu­sie for him: if he acquir'd the Crown by Election, these things shew it to have been as factious, as those which are con­demned. But we must have Recourse to the History, to know how he became King here.

England, since it had been reduced to a Monarchy by the Conduct and Magna­nimity of the great King Alfred, found that benefit of being under One Head, that before Succession was setled, when a King dyed, the People voluntarily pitch'd upon some One, to whom they might pay their Allegiance, and from whom they might expect Protection, when a King quitted his mortal Domi­nion, to be Assessor with the Principa­ [...]ities and Powers in the highest Orb. The Question was not whether they should have a King or no; but who should be the man.

The Confessor through some foolish Vow, which was void in it's self, having denyed Marriage-rights to his Queen, [Page 38] they had none of his Issue to set their Hopes upon, and perhaps they were loth to fall again before a Family which they had formerly disobliged, and there­fore would not think upon Edgar Ethel­ing, who was Heir to him that wore the Crown next before the Confessor. But, that Monarch of their Choice, and as 'twas believ'd, the Elect of Heaven, was in such esteem with them, that the great­est Worth, and the clearest Stream of Royal Blood, would have signified lit­tle in respect of the Deference they paid to his sanctified Judgment; and there­fore his Recommendation in such a su­perstitious Age, was to them a kind of Divine Revelation.

The Norman Prince, Abrev. Chron. Rad. de dice­to. fo. 479. Subregulus Ha­roldus Godwini, filius quem Rex, ante suum deces­sum elegerat, à t tius Angliae Primatibus ad regale cul­men electus. Wil­liam, pretended a direct Gift of the Crown from him; but, there is Authority which tells us, That upon his Nomination, the chief [...] men of all England, chose Harold.

Whether this illustrious Son of the great Earl Godwin was design'd by the Confessor or no, is left in Dispute; but that he arriv'd to his high Trust, by a general Election of those who were able [Page 39] to keep under,M. S. ex bib. Domini Wild de­functi. or satisfie the rest, is certain, and yet an ancient Author calls him, Conqueror, Heraldus Strenius Dux Conquestor Angliae.

If Harold has made an absolute Con­quest, which no man pretends, that I find, and William had conquer'd him, perhaps, there would have been a Devolution of a Conquerours Right, upon him who sub­dued Harold; but there was only a Competition between these two Prin­ces, for that Dignity and Authority which Election had vested in Harold: 'Twas this that William fought for, not for the Lives, Liberties, and Fortunes of the People.

And William himself, upon his Death-bed, being ask'd to whom he would devise his Kingdom, makes Answer, that he would not pretend to dispose of it, and gives this Reason, which argues, that he thought he had no Right so to do. Non enim tantum decus, haereditario jure possedi For,Comb. Brit. f. 104. I possess'd not this Ho­nour as a Right of Inheritance, which, here must be meant, as what I had an absolute Property in, and Disposal of. Sed diro inflictu & multâ effusione san­guinis humani perjuro Regi Haroldo abstu­li, [Page 40] & interfectis vel fugatis fautoribus ejus dominatui meo subegi.

But by a direful Conflict, and much effusion of humane Blood, I took it from perjur'd King Harold, and brought it under my Dominion, through the Deaths, or Flight of his Abettors.

With this agrees Lex Noricorum, in the Confirmation of St. Edwards Laws; Willi­am the Bastard, through God's Permissi­on, subduing Harold, Regnum Anglorum victoriosè adeptus est, Got the Kingdom of England by his Victory; but the Vi­ctory was over Harold, not the whole Kingdom. I wonder our Antagonist brought not this to prove that William the Bastard got all the Lands of the Kingdom, as he granted all the Lands of whole Counties, under the word Co­mitatus: but as 'twill appear, that the Proceedings of this Prince to his being crowned, prove his Election; so his Transactions with Harold, shew, that he laboured only to have that Power, which, he said, Harold maintain'd by Perjury.

[Page 41] Suppose therefore, Harold had not oppos'd, and without more Turmoils, William had been crown'd; had he in this Case been a Conquerour, in the Sense contended for? And what makes the Difference between his having it of Ha­rold freely or by Force, in relation to the whole Kingdom? Surely, he would never have endeavoured to come in by Treaty, to a limited Dominion; when with those Advantages that were on his side, he might expect by turning [...]ut Harold, to jump into the absolute Disposal of the whole Land.

But, immediately after St. Edward's Death, he sent an Ambassador to de­mand a Resignation from Harold, to which he urged his Obligation by Oath; the Gift of his Kinsman the Con­fessor, was likewise pretended. But Ha­rold argued for the Invalidity both of his own Oath, and the others Bequest, because they were,Selden's Review of the Histo­ry of Tithes. p. 439. absque generali Sena­ [...]s & populi conventu & edicto. That [...]s, no Act of the Common-Council of the Kingdom: which Council is represented by this Author, under the Form of the Roman Councils, at those times, when besides the Senator's Votes, there was [Page 42] the Jussus populi. And this is, in other words of the same Import, exprest by Matthew Paris, Sine Baronagii sui Com­muni assensu.

Upon Harold's denying the Norman [...] demand, Appeal is made to the Pope [...] and there was one then in the Papal Se [...] whose Ambition made him court all oc­casions of becoming the Vmpire of th [...] Affairs of Christendom; Vid. Dr. Stilling­fleet's An­swer to Cressy's Apol. p. 347. ad 353. and this was tha [...] great Asserter of Clerical Exemption [...] from the Civil Power, Gregory the Se­venth.

The Pope, like God himself, who by his Prophets, often anointed and design­ed Kings, sends one of his Ministring Spirits, (a Nuncio, I take it) with a con­secrated Banner, as an Evidence o [...] Right, and an Earnest of Victory, and encouraged him to fight the Lord's Bat­tels, not expecting that commendable Ingratitude in the religious maintaining those ancient Rights of the Crown o [...] England, for which he afterwards up­braided his Royal Son.

Whether Superstition, or the hopes o [...] engaging the Pope's secular Influence, and Interest to his side, occasion'd Wil­liam to refer his Pretence of Right to the [Page 43] Pope's Decision, I shall not judge; but with these Colours of a Title, he lands [...]n England, and some say, committed no Acts of Hostility, till his Claim was again deny'd by the daring, but unhap­py Harold: who was a man of Spirit, fit for Empire, and was likely to have kept [...]t much longer, had not Fortune raised up against him, three great Enemies at once, his Brother Tosto, Norwegian Ha­rold, and the aspiring William; against whom, possibly his arm was weakened with the Reflection upon his own Vow to William, to assist him in his ambiti­ous Design; and what he ow'd him in Gratitude for his delivering him from the unmerciful Nor­man Wido, Contigit ut Heraldus filius Godwini de Angliâ navi­gare vellet in Normaniam sed in terram quae vocatur Pont [...]ium devenit, quem Wi­do comes ejusdem patriae cepit, & in Custodiâ tenuit donec industria Willielmi sapientissimi Comitis Nor­mannorum eum liberavit, &c. Brevis Relat. de Willi­elmo 1o per Sil. Taylor. that had detain­ed him in Prison. Yet, he would not follow the whol­some Advice of his Brother Gurth, who foretold, that Flight or Death, would be the Reward of his Perjury, while they, fighting for their Country,M. Par. f. 3. M. West. f. 223. might expect a better Fate.

Tir'd, and his Army scatter'd, with a bloody though successful Battel against his Brother, and the Norwegian Harold, [Page 44] breathing nothing but Victory; upon News of the Normans coming, he ha­stens from Stanford Bridge, to Sussex, and nine Miles from Hastings, before he could put his Army into Array, and as some say, before half of it came up, he eargerly encounters the fortunate Nor­man, and there was his last Scene of Action.Rad. de dicet. so. 480. So Mat. Par. f. 3. The People thought that he deserved to be their King, who though by Artifice, and a dissembled Flight, could conquer the great Harold.

William, Nec diutius verò ibi immoratus, versus Lun­donia [...] principalem ci­vitatem Angliae cepit ire, & sic ipsam terram Anglorum conquirere. Brevis Relat. per S. Taylor. fo. 193. with great Wisdom, hastened to London, where, doubtless, he had many Friends of those Normans, that were in favour under the Confessor; besides those which they and the Slaves and Mercenaries to the Roman See, could whedle to his side; and then the Feuds between the Saxon and Danish Nobility and People, made one Party for him, if it were on­ly out of Faction, and opposition to the other. He well knew, if the City de­clared for him, he did his Business in great Measure, that being the Heart of the Nation, from whence the Life of Power diffuses it self.

[Page 45] Many who had true English Blood in [...]eir Veins, and were against the Reign [...]f a Foreigner, had been lab'ring an In­ [...]erest there,Florentius Wig. f. 634. for the setting up Edgar Etheling, the Nephew of Edmund Iron- [...]de, and lineal Heir to the Crown.

But there was so short a time from the Death of Harold, to William's sudden [...]oming up to London, that they could [...]ot bring it to any Head; and there­ [...]ore, they that engaged in it, and the [...]hole City of London, (Army enough [...] have drove Duke William to his Country, or his Grave, uncrown'd,) [...]ame out to meet him, as far as Berk­amstead in Hertfordshire, where the for­ [...]unate Duke, Sim. Du­nelmensis. f. 195. sic Hoveden, f. 450. Foedus poepigit, made a [...]eague, or entred into Terms with [...]hem, they giving Hostages, for the [...]erforming the Fealty or Allegiance, which they promis'd him; but, like ge­ [...]erous Englishmen, who were never [...]ood at Treaty, rely'd, at that time, [...]pon his Word, for that reciprocal Fe­ [...]ty, which, if we believe Sir Henry [...]pelman, Kings used to swear to their subjects.Glos. p. 271. Jurabat a­liquando & Rex ip­subditis suis fidelitatem mitto exteros; sic autem de Canuto Rege Flor. Vig. in anno 1016. Fidelitatem illi juravere quibus & ille juravit quod [...] secundum Deum & secundum saeculum fidelis esse vellet eis Dominus.

[Page 46] The Agreement, as Florentius ac­quaints us, was made with Prince Ed­gar, amongst others; and, admit that al [...] Pactions with the People were voidable sure he was bound by what he mad [...] with him, who, if any one, had the Ti­tle to the Crown.

He fought with Harold, on the 11 [...] of Nov. and on Christmas, was crown'd at Westminster, upon his own desire to come in like a natural Prince, either by Choice, or by Succession.

His Coronation Oath was taken be­fore the Altar, which was supposed to add to the sacred Tye; and this was co­ram clero & populo. The Clergy and Laity without distinction by Honours were Parties, as well as Witnesses; and the form, as is agreed both by Simeo [...] of Durham,Sim. Du­nelm. f. 195. Flor. Wig. f. 634. Hoveden. f. 450. Rex dici­tur à re­gendo, Bra­cton. Florentius, and Hoveden was, Velle se sanctas Dei Ecclesias ac Re­ctores illarum defendere, nec non & cun­ctum populum sibi subjectum justè ac rega [...] providentiâ regere, rectam legem Statue [...] & tenere, Rapinas, injustaque judicia peni­tus interdicere.

That he would defend the holy Churches of God and their Rectors; and likewise, rule all his Subjects with [Page 47] Justice,Viz. Ac­cording to Law. and that Care which befits a King; that he would both make, and himself keep right Law,Viz. Give his Assent. and wholly interdict Rapines and unjust Judg­ments.

The Solemnities which used to be per­ [...]ormed by the Arch-bishop of Canterbury, [...]ell to the care of the other Arch-bishop: [...]ome give the reason, because the Pope [...]ad declared Stigand, who was then in [...]he See of Canterbury, a Schismatick, and [...]hat he was suspended from his Office, [...]y Ecclesiastical Censure.Bromton. f. 962. But Bromton [...]ells us, and puts it in the first place, [...]hat 'twas said by some, that Stigand re­used to do it, because he look'd upon William as a bloody man, and an Usur­ [...]er: And William of Newberry is positive [...] it,Newber­gensis. p. 1. Cumque peractâ Victoriâ tyranni no­ [...]en exhorrescens & legitimi Principis [...]ersonam inducere gestiens à Stigando tunc [...]emporis Cantuariensi Archiepis. Episcopo, in Regem solemniter consecrari deposueret, ille [...]iro, So Bromton supra. ut aiebat, cruento, & alieni juris inva­ [...]ri, manus imponere nullatenus adquievit.

And, when after the Victory gain'd he being afraid of the name of Tyrant, and desirous to assume the Person of a lawful Prince, entreated to be so­lemnly [Page 48] consecrated King by Stigand, then Arch-bishop of Canterbury; Sti­gand would by no means, lay his hands upon a man, as he said, bloody, and an Invader of anothers Right, or that took what was none of his own.

I conceive it most probable, that this Prince, who according to his Character, could not easily forgive them that caus'd him any Trouble, being mindful of the Check which Stigand gave him, even after London had taken Terms, purpose­ly wav'd, taking the Crown from one that rival'd the Pope in Spiritual, and him in temporal Power, and had bid open defiance to both. Wherefore, his being crown'd by the other Arch-bi­shop,Et potissi­mè Stigan­dum, Brom­ton fo. 962. and the Jealousie he had of Sti­gand, which made him take particular Care to have him with him into Nor­mandy, Quia qui­dam labora­runt ut­pote Tho. Sprot & alii &c. Prologus Willielmi Thorne. fo. 1758. lest his Authority in England, should unsettle his new got Kingdom, gives a strong Inducement to the Belief of what William Thorne, who wrote in the time of Rich. 2. tells us out of Sprot and others; though some would have us think, that he took it only out of Sprot. He himself tells us, that even [Page 49] where he follows Sprot, Quaedam superflua à compilatio­ne dicti Thomae resecans, quaedam notabilia suis in locis eidem addens. ib. he not only cut off many things, but added many remark­able Passages.

Thorne gives us a particular Account of Stigand's raising the men of Kent, to [...]ight for their old Laws and Liberties, Thorne. fol. 1786. which many others, not being Kentish [...]en, would not mention, lest their Magnanimity should upbraid the sud­ [...]en yielding of the rest.

This I take to have been between October and Christmas, when he was [...]rowned; and, that having entred into Treaty, and concluded on Terms at London (which, however, they tell us that [...]e broke) he went towards Dover, Vt [...]llam cum caeteris partibus comitatûs suae [...]ubjiceret potestati.

It seems, Dover was then the Strength of Kent, and he thought, by the get­ [...]ing of that, he should be able to keep all that Country under. ‘Upon this, Arch-bishop Stigand, and Abbot Egel­sine, and all the great men of Kent, perceiving that an ill Fate lay upon the whole Kingdom; and that whereas be­fore, none of the English were Ser­vants, [Page 50] now, Nobles as well as Plebeians, were brought under the Yoke of Sla­very, represented to the People assem­bled together, the misery of their Neighbours, the Insolence of the Nor­mans, and the hardship of a servile Condition, and animated them all, as one man, to a resolution of dying or maintaining their Liberties.’

I know, many learned men look up­on this part, as suspicious, taking the Sense to be, that there were no Villains in England, Sylas Tay­lor of Ga­vel. p. 167. in Kent especially, before that time, which they are at pains to shew that there were: But, I conceive the meaning of the words is no more, than that there had ever been in Eng­land a Distinction between Free-men and Slaves; and therefore, that none of the English, (that is, the People of the Land, which the Law has ever confin'd to Free-holders, they that depend upon the Will of others, Villains or Servants being no Cives, any part of the Nation in that sense) ought to bear that Slave­ry, which the Violence of the Normans, threatned to all in common.

Nor wants there Authority for the Freedom of all the Kentish-men in the [Page 51] largest Extent; for, in an ancient Roll of the Customs of Kent, Lambert's Perambu­lation of Kent. 21 Ed. 1. 'tis said to have been allowed in Eire, before John of Berwick, and his Companions, the Ju­stices in Eire in Kent, the 21 of King Edward, the Son of Henry; that is to say, that all the Bodies of Kentish men be free, as well as the other free-bodies of England.Lambert's Perambu­lation. p. 632. And this confess'd to be true, 30. Ed. 1. in the Title of Villenage, 46 in Fitzherbert, where it is holden sufficient, for a man to avoid the Sub­jection of Bondage, to say that his Fa­ther was born in the Shire of Kent.

The just value of this Freedom,Thorne. made all the Free-holders of Kent, with all that depended upon them, resolve to put a stop to William's Depredations. At Swanscomb was their general Ran­dezvouz; and their numbers were so great, that as the Norman Prince ad­vanc'd, he found himself hem'd in with an armed Wood; for, that they might secure themselves of his making no Es­cape, so confident were they of Victo­ry, or forcing their own Terms) eve­ry man by Agreement, took a Bough in his hand, to block up the way.

[Page 52] The Arch-bishop and the Abbot, in the name of the rest, told him, that the whole People of Kent were come out to meet him, and to acknowledge him their Leige Lord, if they might enjoy their Liberties and Laws; otherwise, they denounc'd War, and bid him Defiance.

Upon this, William calls a Council of War, and he finds it expedient, to give them their Terms: they knowing how he had used those who trusted to his Generosity or Justice, took Hosta­ges, as well as gave, and then in full Assurance of his Performance, yielded him their County, or the Government of it, not all the Land and Property there, and, as what would secure the Government there to him, resigned up the Castle of Dover.

To this Relation,Perambu­lation of Kent, p. 25. the great and faith­ful Antiquary Mr. Lambart gives suffi­cient Reputation.

Mr. Camden says,Camden's Brit. Ut verè quamvis minùs purè in antiquo libro sit scriptum. that no man before Sprot has told these Circumstances; but he cites an ancient Authority, which was a Plea, not oppos'd, and which could not be taken from Sprot, in which he confesses the Substance of this to be [Page 53] contained; and though not elegantly writ, yet with Truth. So that Mr. Cam­den is on our side, being convinc'd by the truth of his own quotation. Dicit Cantii Comitatus quod in Comitatu ipso de jure debet de ejusmodi gravamine esse liber, quia dicit quod Comitatus iste, ut residuum Angliae, nunquam fuit conquestus, sed pace facta se reddidit Conquestoris dominatui, salvis sibi omnibus libertatibus & liberis consuetudinibus primò habitis & usitatis.

The County of Kent says, that in that County, of right, it ought to be free from such a Grievance, because it sayes, that that County was never conquered, like the rest of England. But, having made a Peace, yielded its self to the Conquerour's Dominion, saving to themselves all their Liber­ties, and free Customes, at first had, and from that time us'd.

It seems, in standing up for their own Rights, they reflected upon the rest, as an humble conquer'd People.

And indeed, whereas it has past in­to a Maxim, Nemo miser nisi compara­tus;

[Page 54]
No man's condition is unhappy thought,
But when into the Scales with happier men he's brought.

On the other side, men are apt to think their Happiness incompleat, with­out comparing themselves with those, whom they look upon as deprived of the Advantages which they enjoy. Thus our late Author enhances the value he puts upon himself, by the Contempt which he thinks his Adversaries deserve, though, in truth, how low soever they lye, he rises no higher, but, it may be, disgraces his Mastership by the compa­rison.

But, to return to the Men of Kent, the generality of which, how free soever they were,Against Mr. Petyt. p. 39. were, by his Rule, no Free­men of the Kingdom: for, all the Free­men of the Kingdom were Tenants in Military Service. Feudalibus Legibus non [...] Spel. Glos. tit. Gavel kind Which was, of the Feu­dal Law; whereas their Gavel-kind was exempt from it.

I can imagine no other Reason why they, above others, constantly maintain­ed their old Laws and Customes, than that they were a sturdy People, more than ordinary tenacious of their Rights, [Page 55] and sensible of the least Violation. And possibly, for a long time they retained the Power of taking Satisfaction upon some of his Favourites, who were Pledg­es for William's Performances. Sure I am (as far as my Authors can assure me, after this Classick Writer has blasted their Credit, I will not say with a con­tagious Breath) he promis'd as largely to the rest of the Nation, as he did to the People of Kent.

If the men of Kent had their Repre­sentatives at least, at the Electing him to Rule over them, and were not sub­jected to him as a Conquerour, nor were their Lands parcell'd out by him, though we are taught, è Cathedra, that he took away from the English their Estates, and gave them to his Normans. So that, according to his Reasoning, the Flem­mings, Against Mr. Petyt. p. 35. Anjovins, Brittains, Poictorins, and People of other Nations, who made up a great part of his Army, and came with him under considerable men, their Leaders, came out of stark love and kindness. They, though Adventurers with him, being content he should gratifie onely his Normans. Nay, he divided all the Lands of the Kingdom amongst his great [Page 56] Followers: even the Lands of those Normans who had Estates here before.

But, if, I say, the men of Kent enjoyed their Right, as abovesaid, what Reason, beyond what I have assign'd, is there to think, that it was otherwise with the rest in general, some of which were Ad­venturers with him, but all equally sharers in the extent of his Promise, to maintain rectam legem?

Though he and some of his Succes­sors chose Succession, as the most ho­nourable Title, yet, that he had none but Election, is evident, in that he was not Heir to the Confessor, Domesday in Surry, Acstede, Goda ma­ter Heraldi tenuit IRE. In ano­ther place there cal­led Soror Regis Ed­wardi. but rather Harold was, who was Son to Goda, that King's Sister. Nor could the Confessor and Harold lawfully set the Crown up­on his Head, without the Consent of the Kingdom: Nor yet could he gain a Title by Conquest, over those who vielded upon the Terms of enjoy­ing their Laws and Liberties; and, who, unless those Terms had been granted, had both Right and Spirit too to have kept him from Reigning over them.

Abating the factious conspiring to set him up against Edgar Etheling, who, [Page 57] though he was not, as now the Law is, actual King before Coronation, yet ought to have been crowned, the Peo­ple had sufficient inducement to chuse William.

1. Because he was a Prince of a less Potent Nation, and therefore would make an Accession to England, and give them footing upon the Continent, from whence they might spread the glory of those Arms, which were re­proach'd with that necessity of Self-defence, which makes even Cowards Valiant.

2. He was a Prince who had govern­ed his own Country with great Pru­dence and Moderation;Brevis Re­latio Wil­lielmi ad finem. Syl. Taylor. p. 188. nor would at­tempt upon that acquisition, to which many Circumstances invited him, with­out the Consent of his Senate there.

3. Harold being dead, they knew not any man so likely to defend them from those Enemies which threatned and molested them from abroad, or that could better secure them from the Ty­ranny of many Masters at home, and the Distractions, which, in all probability, would arise from their Feuds and Com­petitions for the Crown; which, every [Page 58] one that could draw the Mobile [...] him, would be catching at, till it was plac'd and setled.

Thus, I think, 'tis made evident, that William the first, his Title was by Ele­ction, and that the Election, according to the infallible Rule, was factious, since, how unanimous soever they might be at the crowning him, Feuds and Factions wearied them into the Agreement, more than the Force of his Arms; but, I shall not give him this Author's obliging Epithetes. 'Twill be said, perhaps, if the Election be void, then he is let into a Title by Conquest, yet how can that be, when the very Conquest, or rather Acquisition, what­ever it were, was by this means, he be­ing received upon Terms? Foedus pe­pigit. Besides, if there were no Election, then the People never yielded, were never conquered; And, there was no more a Conquest of the whole Nation, than an Election by the whole. The actual yielding of some, and tacit Concurrence of others, made his Title.

SECT. 3. That he makes a Title to the French King, from the Acquisition of his Feudal Te­nant, the Norman Duke, upon his Noti­on of the Feudal Law.

BY the Law of Feuds, as he receives the Supposititious Sir Henry Spel­man, (for so, out of Reverence to his Memory, I take leave to call the Second Part of the Glossary, till 'tis reconcil'd to Truth, or, till our Author, who goes upon the same grounds, makes them good) Superior quisque Dominus Regu­lus agit in suos subditos, Against Mr. Petyt. p. 104. & in rebus ad feodum suum pertinentibus ex ipso jure feo­dali jus dicit. ‘Every Superiour Lord Acts like a little King over those that are under him,Little it seems for the num­ber of his Subjects, not the extent of his Power over them. and, in things belong­ing to the Feud, gives Law, even by the very Feudal Right, that is to say, is absolute.’

In another place, Consentire quisque videtur in personâ Domini sui Capitalis pro­ut bodie per Procuratores Comitatûs vel Burgi,2 Glos. tit. part. quos in Parliamentis, Knights and Burgesses, appellamus.

[Page 60] ‘Every Inferiour seems to consent in the person of his Lord, as at this day we do by the Representatives of the County or Burrough, which we, in our Parliaments, call Knights and Bur­gesses.’ What, no Citizens amongst them?

Truly, I should think by the Com­parison, that a Legislative Power was delegated to the Lords of the Feud, as there is, it seems, to the Representa­tatives of only the Counties and Bur­roughs; but that it is, Ex ipso jure feodali.

Further, our State-Quack has it,Glos. p. 7. As all their Estates arose from his Beneficence: What if some purchas'd theirs? So they depended on his Will.

Originally,That is the Feudal Te­nants ib. p. 4. all Vassals held their Lands at the Will of the Lord, and whether they were Delinquents or not, he might at his Pleasure take them from him.

When this rigid Law expir'd, he does not vouchsafe to inform us, however he yields the Substance of all, in ac­knowledging, that the superiour Lords gave Law, or were absolute, and re­presented or govern'd the Tenants in the Legislature, till the 49. H. 3.

[Page 61] To assume, William was Feudal Te­nant to the King of France, and accord­ing to the Feudal Law, long after his time King John was summoned to the French Court, to answer for the Death of Arthur of Britain, who was another Feudatory to the French King. William himself, was not only subject to the Feudal Law, but thereby was as much under his Superiour Lords despotick Power, in relation to what he got, as the most inferiour Tenant: William de­pended upon that King's Will, his Do­minion was forfeitable without any de­fault, he was Leige-man to, and re­ceived Laws from the French Mo­narch.

Though the Crown of England has always been imperial, subject to none upon Earth, yet, he that wore it, un­less he were so free, that he could go with his Land,Potuit ire cum terrâ quo voluit. whither he would, which to be sure, is inconsistent with this Feu­dal Law, he could not quit his Depen­dance.

SECT. 4. The Notion of the Feudal Right consider­ed, and the Right of Tenants in free and common Socage, to come in the [...] own Persons, to the great Councils, shewn from thence.

BUT since the mention of Jus feoda­le, as advanc'd in the second part of the Glos. ascribed to Sir H. Spelman, occasions a little Consideration of the Feudal Law, I, out of a Zeal to clear his Reputation from the Charge of things, false or frivolous, and having, at pre­sent, no other Authority for his being the Author of it, than ones who has an excellent Faculty of Storying, except against what is there said to be ex ipso jure feodali, as none of his.

'Tis there taken for granted, to be the very Right of Feuds, deriv'd from the Feudal Law, that the Superiour Lord of the Feud, should give Law, jus dicere, to them that are under him; and 'tis evident, this is not meant of an or­dinary Jurisdiction, because by virtue of this, 'tis fancy'd, that the Lords re­presented [Page 63] their Tenants in the Extraor­dinary at the great Councils; and by the same reason, the Assertion of a Judge censur'd in Parliament, is justifiable, viz. That the King is the only Represen­tative. But I must observe, that this must be from

Either,

(1.) The general Law, which guides the Feuds in all places where Feudal Law is received,

Or,

(2.) The particular Feudal Law of England.

1. Our Author evidently takes this in the first Sense; being to prove what was the Feudal Law here,New Glos p. 4. he cites the foreign Feudists, who acquaint us with the Law of Feuds amongst them; but this first Sense is not supposable, in that this Law, upon that account, would be as much the Law of Nations, as the Law for the Advantage of Embassadors wherever they come.

And this could not generally prevail, but from the Authority of Catholick Reason that should require it; but that I do not find, since the Lord may have the Vtile Dominium, which the Feudists [Page 64] speak of, as incident to Feuds, with­out the despotick Power; and the end or nature of them being answer'd, from whence will the Argument be brought that it ought to be so? I will grant, that it is not a Feud, unless there be Utile Dominium, for that distinguishes it from an Alodium, which sometimes may yield no profit to any Superiour. But those who well knew the Nature of Feuds, teach us, that 'twas the In­fancy of Feuds when they wholly de­pended on the Lord, and could not stand without being supported by his pleasure, then indeed (which was be­fore Feuds were spread into many Na­tions.)cragius de Feudis, fol. 20. Nec servientibus aliud jus erat in his proediis quam precarium, quod qui habet non tam diu quam ipse vult, sed quamdiu is qui concedit patitur eo frui.

This indeed agrees with that Law, which is supposed to have obtained, even till the 49 H. 3.

Whereas from hence Feudal Tenure advanc'd to an Estate for Life:Solet usus fructus constitui in personam tantum. Cujacius de feudis, Tom. 4. fo. 464. and all this before the year 650, from which time, to Charles the Great, who began to reign in the Year 800, unless one were particularly assigned by the Gift, [Page 65] the Lands descended,Craglus, fol. 21. by right of In­heritance, to all the Sons.

Its state of Maturity was, when it descended to one, but still there was an Inheritance by the Law of Feuds, be­fore the time of William the First, and above 450 years before the 49th of H. 3.

And, I would rather believe Cujacius for the Jus Feodale, or the Nature of it, than what we find under the Title Par­liament in the Glossary.

Cujacius defines a Feud, Cujacius de feudis, fo. 464. Tom. 4. Jus praedio alieno in perpetuum utendi fruendi, quod pro beneficio Dominus dat, eâ lege, ut qui accipit sibi fidem & militiae munus, aliud­ve servitium exhibeat. ‘An Usufructu­ary Right in another's Land, which the Lord gives for a Benefice, upon condition that the Grantee should be faithful and true to him, and perform Military or other Service.’

This is a perpetual Right, therefore not to be disposed of by the Lord's Will, or the Law which he should give.

'Tis indeed Vsufructuary, because the Lord has the Forfeiture and Escheat, according to the Laws setled in any [Page 66] particular place: For, I take it, that in one place they differ'd from another.

And, in Confutation of this Conje­cture, that ex ipso jure Feodali, the Lord jus dicit, (take this as the general Law of Feuds) 'tis enough that in any place where the Feudal Law was received 'twas otherwise.Choppinus de Juri­dic. An­deg. Choppinus sayes, that amongst the French a Feud implies not juridica potestas, nil commune cum juridi­ca potestate. Which, if (as Jurisdiction is often used, to signifie a Power infe­rious to Jus dicere) it is but a Judicial Power; it follows, that the Lord could not have the greater, where he had not so much as the less. And farther, Feuds have, in all Countries, been guided by the Law of Property, their Common Law.

Thus sayes Cujacius, Nos quoque jus feudorum quo Italia utitur sequimur non inviti, nisi siqua in re pugnet cum legi­bus aut moribus nostris. ‘We also wil­lingly follow the Law of Feuds, which Italy uses, unless in any thing it fights with our Laws or Customes.’

And this is to be observed, that the end of raising Feuds has often prevailed to introduce a Custome without any [Page 67] express Law, and beyond the Foreign Law of Feuds.

(1.) Without express Law, and thus to preserve the Head of a Barony, that was never to be divided; whereas, any other part was often so, in which the Common Law prevail'd from the end of raising the Feud, which requir'd the Preservation of that entire, though the other part of the Barony might be divi­ded.

Bracton and Fleta suppose the Barony to descend to several, as well Males as Females.Bracton. lib. 2. fo. 76. Primogenitus vel primogenita habeat electionem propter suam Eisneciam, says Bracton, Fleta lib. 5. fo. 313. whose words only I re­peat; Let the first born, Male or Fe­male, have Election, by reason of the elder Share.

And with this agrees a Record in King John's Reign.

Thomas de Scoteney, petit versus Wil­lielm. Scoteney Capitale Mesuag. quod ha­bere debet in Steinton cum pertinentiis sicut illud quod pertinet ad Eisneciam suam de Baronia quae fuit Lamberti Scoteny.

Thomas de Scoteny, Term. Pasc. 7. & 8. J [...]han­nis 9. dor­so. claims against William Scoteny, the Capital Messuage, which he ought to have in Steinton, [Page 68] with the Appurtenances, as that which belongs to his elder share of the Baro­ny, which was Lambert Scoteny's.

These surely were Brothers, not Si­sters Sons, being of the same Name, and the Claim being immediately from the seizin of Scoteny: and this Claim was allowed, as the Record shews.

Besides, tho 'tis generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor. in his History of Gavelkind, Hist. of Gavelkind p. 104. thinks he proves it to have been before the suppo­sed Conquest.

Yet, we have good Authority, that there was no express Law for this, be­fore 4. H. 3.K [...]ighton. fo. 2430. A [...]. 1219. 4 H. 3. Magnates Angliae concesse­runt Regi Henrico Wardas hoeredum & terrarum suarum, quod fuit initium multo­rum malorum in Angliâ.

The great men of England, grant­ed King Henry the Wardships of their Heirs and Lands, which was the be­ginning of many Evils in England.

(2.) We find Custom prevailing be­yond what was the foreign Feudal Law, at least, of some places; for which, I may instance in Relief paid by the Heir male, after the Death of his Ancestors. [Page 44] Whereas, I find it in Cujacius, payable only by the Heir female,Cuja [...]i [...]s fo. 498. Siquis sine filio Masculo mortuus fuerit & reliquerit fili­am, filia non habeat beneficium patris nisi à domino redimerit.

If any one dye without Heir male, and leaves a Daughter, let her not have her Fathers Benefice, unless she redeem it of the Lord.

That Relief was called Redemption, appears by the Law of H. 1.Leges fo. 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ & justâ relevatione relevabit eam.

It seems, in King Rufus his time, this payment was so unreasonable, that 'twas a Redemption, in a strict sense, and a kind of Purchase of the Land; but now 'twas to be a lawful and just Relief.

2. The jus feodale, mentioned in the Glossary, if it be not the Law generally received where Feuds were, must be the Law of England in particular.

But 'tis to be observed, that Choppi­nus knocks this down, who tells us, that amongst the French, Juridica pote­stas, was not imply'd by a Feud. Against Petyt. p. 31. in mar­gin. But our Apollo teacheth us, that our ancient Tenures were from Normandy, and that [Page 70] was govern'd by the French Feudal Law, being of the French King's Feud. Wherefore, the Juridica Potestas or jus dicere, was not here, Ex ipso jure feoda­li; nay, in the same place, the French Feudist tells us,Choppinus de Juris­dict. An­deg. fo. 455. Interdum certè Baro Ca­stellanum observat superiorem.

'Tis certain, sometimes a Baron is under a Castellan's Feud.

And he gives the Reason why it may be so, which is, that a Feud carries not with it,ib. so. 450. the Potestas juridica, which rea­son is very apparent, in that a Castellan is of a degree lower than a Baron.

Take Juridica potestas in the same Sense with jus dicere in the Glossary, a Baron was to take Laws from his Infe­riour,Leges H. 1. cap. and to have his Lands taken from him without Forfeiture; as it appears by the Law of Hen. 1. that being one of the Judges in the County Court, was not upon the Account of Resiance, but the having Free land there; so it must have been in the great County Court of Cheshire, though they had an extraordi­nary Power there. Admit therefore, that a Lord of another County were Feudal Tenant to a Commoner there, (as 'tis not to be doubted but he might [Page 71] have been) should this Lord have been represented by his Capital Lord there?Glos. 2 part. Consentire quis (que) vid. Or, admit a Lord there, had no Land, but what he held of a Commoner, as of such an one as Thomas de Furnival, Jani Angl. facies no­va. p. Sed vide the Record more at large. who had several very considerable Mannors; might Thomas de Furnival represent the Lord in the Lord's House?

But farther, taking the Jus Feodale to be as in force with us, unless the po­sitive Law, giving so large a Power, be shewn, 'tis a begging the Question; for 'tis to prove the Right, which our wise Antagonist would exclude from the Question, (as being indisputable, I suppose) by the Fact; whereas the fancied Right is used in his Hotch-potch Glossary, to induce us to the belief of the Fact. But from what Sourse is this Right deriv'd?

SECT. 5. An Improvement of the Notion of Jus Feo­dale.

THat I may make our mighty man of Letters out of Love with his darling Glossaries, 2 Part of the Glos. and his own. I shall observe to him, [Page 72] That, according to that, for the Credit of which he pawns his own Truth, or his Friends, All the Lord's Right of Representing their Tenants in the Great Councils, Against Mr. Petyt. p. 31. is meerly Feudal ex ipso jure feodali. But all Feuds were enjoy'd un­der several Military Conditions, or Ser­vices. Being then these were the onely Feudal Tenures, and yet, as appears by Domesday-Book, and all manner of Au­thority, there were Freemen, who held in free, or else in common Socage (though the Dr. sayes, all the Freemen of the Kingdom were Tenants by Military Ser­vice) These Socagers were not charge­able by any without their own consent; But, like men of another Government, (and, it seems, he will afford them no­thing here) they, though called, were not obliged to come to the Great Coun­cil, which was the Curia of the King's Feudal Tenants onely; Nay, they were never at it: And therefore, no wonder if the Laws were obs [...]rved by, and ex­acted upon,Against Mr. Petyt. p. 43. onely the Normans them­selves.

For the others could not be bound, and, if they consented to any Charge for Defence of the Government, it could [Page 73] be onely in what way they pleased to consent, either in a Body by themselves, or united with the Vassals, or else se­verally at home, as a meer Benevolence. And there being free and common Socage Tenants before the Norman's Entrance, and since continually, thus it must al­wayes have been.

CHAP. III. That Domesday-Book, to which he appeals, manifestly destroyes the Foundation of his Pernicious Principles.

SECT. 1.

SInce our Tenures, and the manner of holding our Estates, Against Mr. Petyt. p. 31. in every respect, with the Customes incident to those E­states, are said to be brought in by the Conquest: and not onely most, but all free Estates must have been feudal; as Knights Service, which is made the one­ly feudal, was, in the time of William the First, the onely free Service. ib. p. 39. What I have said of Feuds in the last Chapter, [Page 74] doth directly reach the Controversie be­tween us; though our Author, who has an excellent faculty of overthrowing his own Arguments, would have the Discourse about these,ib. nay, and the Con­quest it self, to be out of the Question, and then, pray, what is the Question? It cannot be whether Tenants in Capite represented,p. 2. or, by their Votes, con­cluded all that held by any other Te­nure; Nay, whether these and their Tenants could do it, because this Te­nure, and manner of holding Estates came in with the Conquerour.

I hope I shall not seem tedious, though I am long upon this [...] of a Conquest, that Corner-stone, on which, (if he knows what he do's, which I cannot but doubt of sometimes) he Erects a fanciful Scheme of Govern­ment. And thus the lofty Fabrick rises one Story upon another.

William, having made an actual Con­quest,Against Mr. Petyt. thereby had the absolute Dispo­sal of all the Lands of the Kingdom: p. 35. and did, p. 176. according to his lawful Power, give all away to his Followers, who, though French,p. 35. Flemmings, Anjovins, Britains, Poictovins, were all metamor­phos'd [Page 75] into Normans;p. 43. upon whom onely the Feudal Law was executed and observ­ed. The King's Grantees, though ordi­narily a Tenement or Possession neither ad­ded to,Glos. p. 10. or detracted from the Person of any man, if free or bound, according to his Blood or Extraction, might well be all the Free-men of the Kingdom, because the Conquest had made all the English Slaves; and the King granted onely to his Great Followers, which were Free before. But, when these Grantees granted out to others, p. 176. the Subfeudataries made part of the Freemen of the Kingdom, as holding by Knights Service; these were the men,ib. p. 39. the onely Legal men, that named and chose Juries, and served on Juries themselves,Carta H. 1. both in the County and Hundred Courts:Barones Comitat. qui liberas habent ter­ras. in which Courts they were the onely Suitors. Alas! no body else had any free Lands in the Counties: There­fore, p. 42. these must have been the men that at first Elected two Knights in every Coun­ty, out of their own number, and onely they were Electors, when first the Body of them began to be represented.

And, unless others are impower'd by the 8th of H. 6. c. 7. which restrains the numerous Electors to Free-holders of 40 s. per ann.

[Page 76] As the Tenants in Capite came before the 49th in their own Persons, and re­presented the Body of the Commons of England; and when first the Body of them, that is, the Tenants in Capite, be­gan to be represented, they onely, as was proper, chose their own Representa­tives, so it ought to be at this day. And thus the Tenants in Capite, that is, they alone, and yet they and their Te­nants by Knights Service, have ever been, and still ought to be, the onely Members of the Great Council.

I know he will venture hard, but he will make all this good, in his next, if he can, (there being a narrow Interest in some, for which they would sacri­fice the Publick,) But, I shall think our Government will have been fine­ly brought to Bed by his Midwifry, when such a monstrous brat is own'd by it.Vid. Let­ter to the Earl of S.

But, if King William, the Master­builder, refus'd what this Author would make the Head of the Corner; and was not so absolute a Conquerour, as to leave the English neither Estates nor Fortunes, Against Mr. P. p. 43. ib. p. 179. what becomes of his Airy Am­buscade?

[Page 77] He has the Confidence to refer to Dooms-day Book in every County, for this Fiction, and that will satisfie a man wil­fully blind,p. 176. that William the Conquerour divided all the Land in England amongst his great Followers. Now, what if I shew out of himself, and this book of Judg­ments concerning Lands and Services, that he divided very little of the Lands in England, to his Followers, to be sure that he was far from distributing all.

Our Author spared the particular Proof, I'll warrant it to make us believe it would require a Transcript of the whole Book: but I think I shall impose upon no body, by affirming, without transcribing the greatest part of it, that even where Lands were enjoyed by other Owners than such as held them in the time of King Edward, and upon other Titles; yet the Lands con­tinued for the most part, to hold in the same Manner as before. Whereas, Wil­liam, according to him, brought in a new Manner, and none were so much as Free-men, who held not by Knights Service, which he setled over all, jure haereditario; We generally shall find, that there was no change of the Manner [Page 78] or Quality of the Service, but only of the Quantity, Tunc geldavit, modo gel­dat, for so much, either more or less; according to the Improvement, or Fall of the Land; and frequently, that which before paid for a certain number of Hides, paid nothing at the making of the Survey. The Rent, I conceive, was in proportion to the value of the Land, that being seldom named, but only, how many Hides, Acres, Roods, &c. there were; and these Tenants seem to have held in free or common Socage. Sometimes they were such as potuerunt ire cum terrâ quo voluerunt; which, I doubt not,Doomsday Ties Tai [...]i tenuerunt & non po­tuerunt ire quolibet. u [...] flet tenu­i [...] de Tofti sed non fu­it alodi [...]m. were the Alodiarii: some­times they were not so free, but held by Villain Services, though themselves were free; and these were Tenants in common Socage. Sometimes Milites are named, but rarely; so that 'tis certain, he can have but small Assistance from Dooms-day book: and being there some­times descent, sometimes purchase, and now and then the King's Grant is men­tioned, who can tell by that, whether generally the Lands were enjoyed by the one or the other Title, since, espe­cially, 'tis most usual, only to name the [Page 79] Persons that held formerly, who did then, and by what Services. I take it, there are as many, and as often, English names there, as others, and though the [...] of names different from the former [...],Vid. Ca [...] ­den's Re­mains of Sir names, from p. 136. to p. 141. that the Christian [...] which [...] from their Fathers, are more us'd there than Sir-names.

But, I thank him, he has given me an easie Task, to shew, that in spite of his Conjecture, this great Survey demon­strates that there were Proprietors of English-men, who held Free-lands, up­on Titles paramount to what he insists upon.

If notwithstanding our Au­thor's Quotation out of Tilbu­riensis, But they should not claim any thing from the time the Nation was conquer'd under the Title of Successi­on or Descent, Tilbu­riensis. an Officer of the Ex­chequer who was for bring­ing Grist to the Mill, I pro­duce a List of Free-holders, who enjoyed their Lands of the Seizin of their Ancestors, Against Mr. P. their own, p. 34. or theirs of whom they purchas'd, Against Jan. &c. p. 1. from before the counterfeit date of the English Slavery what shall we judge of his Vagaries, p. 43. Not directly reach the Contro­versie. which he himself owns to be imperti­nent?

[Page 80] I shall take no notice of Ecclesiastical or Kentish Titles, because, the Church and that County, may be thought to have been particularly exempted from the common Calamity; [...]; nor shall Freeholders of Houses have a place here.

I must observe, that though the same names are often repeated, Sir-names be­ing then most in use, we cannot tell, but that they might have been different Parties; but however, if there were so many distinct Properties, 'tis enough.

Surrey.

1. Hugo de Port was a very great Proprietor, Domesday. He was not Tai­nus Regis. as may be found under the Title, Terra Hugonis de Port: many Mannors he had; and as appears in Hampshire, he had at least two Mannors, Cerdeford and Eschetune, from his Ance­stors, before William's Entrance.

And even this is a ground to believe, he was a great man, that he had a Sir­name or Addition.

[Page 81] Whereas, Camdens Remains. p. 136. if we believe the great An­tiquary Mr. Camden, Sirnames were not setled among the common People fully, till about the time of Edw. 2.

2. Oswald holds Michelham.Idem tenuit T. R. E.

3. Seman holds in Mideham.

4. Otbert holds an hide in Mi­chelham, Antecessor ejus tenuit in Vadio. which his Ancestor had in Mortgage of Brictrick.

5. The Earl of Moreton, Ipse Comes tenuit E­streham T. R. E. a very powerful Prince, as I may call him, held Estreham in Tenrige Hundred, in the time of King Edward. He enjoyed several other great Possessi­ons of the Gift of King William. I doubt not indeed, but he was a Nor­man born, yet he was here before the Entrance of the Norman Duke, and might, not improbably, be in Favour with King Edward the Confessor, Camdens Remains. p. 136. who was all Frenchified. He, to be sure, had some Lands within the Kingdom of England, p. 176. which he enjoy'd not from William's Division.

6. Seman holds one Hide in Mideham. Tenuit de Rege Ed. nunc tenet de W. Rege.

7. Godwin holds one Rood.

8 William the Hunter holds Lit­tleton.

[Page 82] 9. Oswald holds Pechingford.

10. Seman holds one Rood in Copedome Hundred.

11. Oswald holds Feceham.

12. Teodorick the Goldsmith holds Cle­vintune.

13. Chetel the Hunter holds Lodesorde.Pater ejus tenuit de Rege E.

Hamshire.
Terra Tainorum Regis.

1. Alwi the Son of Saul holds Tederley. Pater ejus ten [...]it in Alodium de Rege E. Nota, In Cambridge­shire, of 37 Owners of Houses in the se­venth Ward, but 3 were Franciginae.

2. Vluric holds Locherlei.

6. Four English men, Brothers, I take it, hold Wallope.

7. Edmund holds Land of the King.Pater eorum tenuit in Alodium.

8. Agemund holds Weldeve.Ipsemet tenuit in A­lodium de Rege E.

9. Another Agemund holds Hotlop.

10. Alwi holds Locherslei.

11. Agemund holds Sotesdine.

12. Sawin holds half an hide in Roche­borne.

13. Vlviet the Hunter holds Riple.

14. Agemund holds half an hide in To­tintone.

[Page 83] 15. Alric holds half an hide.

16. Godric's Sons hold Haugre.

17. Alwin holds two hides.

18. Ravelin holds Clere.

19. Lewin holds one Rood in Clere.

20. Vluric holds a Mannor.

21. Alwin holds Merceode.

22. Cola the Hunter holds half an hide.

23. Saulfs Wife holds Hoburne.

24. Vulgar holds one Rood in Melle­ford.

25. Godric Malf's Sons, hold one hide in Esselei.

26. Aluric holds one hide in Einforde.

27. Aluric holds a Rood and an half in Vtefel. Leving and Chetel held it. Aluric pur­chas'd it in the time of King William.

28. Aluric holds one hide in Broceste.

29. Godric Malf's Sons hold Mintestede.

30. Oirant holds Celvecrote.

31. Alsi holds Abagine.

The two next held in Alodium of the Confessor.

32. Swartin.

33. Edwin.

34. Ralph Mortimer holds several Pos­sessions, some of which he had jure haereditario, from before the reputed Conquest. Ipse Radulphus tenet Ordie: [Page 84] This Mannor T. R. E. extra Eccle­siam emptum fuit, eo pacto & conven­tione, ut post tertium haeredem cum omni peeunia Manerium Ecclesia Sancti Petri de Episcopatu recuperet, nunc qui tenet Ra­dulphus, est tertius haeres.

Barkshire.Berroche scire.

1. Walter holds one hide in Cheneteberie which King Edward gave his Ancestors. De firma suā & solut. ab omni consuetud. propter Forestam cu­stodiend. excepta fo­risfactura Regis, &c.

2. Edward holds one hide in Coserige, he held in Alodium of King Edward.

3. Alward the Goldsmith holds Sotesbroc.Pater ejus tenuit de Regina Edw.

4. Eldeva a Free-woman, holds in Henret one hide of the King in Frankalmoigne, which she held T. R. E. and could go whe­ther she would.

5. Alwin holds Ceuresbert, which he held T. R. E.

Wiltshire.Wiltscire.

1. Brictric holds, as his Father did, T. R. E. Wochesie, Straburg, Stratretone and Odestock.

[Page 85] 3. Brictric and Alwin hold Co­lesfeld.Ipse tenuit, T. R. E.

4. Aluric holds Wadone.

5. Aldred holds Bimerton.Ipse tenuit T. R. E.

6. Cudulf holds Wintreburne.

7. Cheping holds Haseberie.

8. Cola holds Gramestede.Pater ejus tenuit T. R. E.

9. Gode holds one Hide in Stote­come. Ipsa tenuit T. R. E.

10. Edwin holds Chigelei.

11. Edric the blind, holds Her­tham.

12. Edward holds Widetone.Pater ejus tenuit T. R. E.

13. Edmund the Son of Aculfe, holds one Hide in Bredford.

14. Harding holds Winestone.

15. Turchil holds in Contone.

16. Vluric holds three Roods of Land in Wintrested, and one Rood in Tuderlege.

17. Vlnod holds 1/2 Hide in Bra­message.

18. Wendsey, Vit ejus tenuit T. R. E. the Wife of Tite­come, holds Land.

19. Lisman holds three Hides in Melchesham.

20. Wado holds one Hide in Bereford.

[Page 86] 22. Otho and Swain hold the Lands which their Fathers held,Tenentes Terrarum quas tenuerant eorum patres, T. R. E. T. R. E.

23. Savic holds Lachertestoche.Gest frater ejus tenuit T. R. E.

26. Ceviet, Aifild, and Eldid, held divers Lands which their Husbands held T. R. E.

Dorsetshire.Dorsete.
Terra Tainorum Regis.

1. Gudmund holds Midletone.

2. Bollo the Priest holds Maple­dore. Ipse tenuit cum aliis 7 Tainis, T. R. E.

3. Brictwin holds Waia.

4. Vluric holds Mordone.Pater ejus tenuit T. R. E.

5. Alward holds Tornecome.

6. Ulviet holds Winburne.

7. Godwin the Head-borough, holds one Hide in Winteburne.

8. Swain holds Winteburne.

9. Vluric the Hunter, holds one Hide.

10. Brictwin above named, holds Ciltecome.

11. Brictwin holds Wadone.

12. Saward holds eleven Rood in Caundele.

[Page 87] 22. Ten Thayns hold Chimede­come. Ipsi tenuerunt. T. R. E. pro 1. Manerio. Omnes qui has terras tenuerunt T. R. E. Potuerunt ire ad quem Dominum volebant.

Somersetshire.Summersete.

1. Brictric and Vlward hold Bochel, and

2. Siward holds Ettebere.

3. Vlf holds Havechewelle.

4. Alward and his Brothers,Pater eorum tenuit T. R. E. hold Stoche.

5. Godwin holds Draicote.Ipse & mater ejus te­nebant T. R. E.

6. Aldwi.

7. Brismar.

8. Alwerd.

9. Donno.

10. Huscarle.

11. Osmer.

12. Eldred.

These hold several parcels of Land.

Devonshire.Devenescire.

1. Colwin holds Chelesword.Ipse tenuit T. R. E.

2. Godwin holds Curemton.

3. Edred holds a Furlong of Land in Bicheford.

[Page 88] 4. Alward holds Colsovenescote.

5. Ausgot holds Madone.

6. Donne holds Niwetone.

7. Alwin holds Midelcote.

8. Edwin holds Buterlei.

9. Vlf holds Wadeham.

10. Algar holds Chevendestone.

11. Alric holds Wasberlege.

12. Aluric holds Essaple.

13. Lewric holds Betunie.

14. Saulf holds Dunesford.

15. Alveva holds Lacobescherche.

16. Alfhill holds Chenudestane.

Buckinghamshire.Bockingham­scire. Ipse tenuit T. R. E.

1. A certain Splay-footed man holds Eurifel in Frankalmoign.

2. Lewin holds one Hide in Wa­vendone.

3. Lewin Cawra holds in Boneston Hund.

4. Chetel holds in Moslai Hund.

5. Godric Cratel holds in Mi­deltone.

6. Suarting and Herding, two Brothers, hold Lands in Cotehale Hund.

Oxfordshire.Oxeneford­scire.

All the Burgesses of Oxford have in Common without the Wall, Pasture yielding. 6 s. 8. d. The County of Oxford pay the Rent of the three Nights, that is, fifty pounds for Lands they hold.

1. Theodoric the Gold-smith, holds one Hide in Nortone, and two Hides and half in Welde, these Lands his Wife held freely, T. R. E.

Staffordshire.Statfordscire.
Terra Chenwin & aliorum Tainorum Regis.

1. Chenwin holds of the King three Hides in Codeshale. Ipse tenuit T. R. E.

2. Dunning holds Chenestone.

3. Alric holds Stagrisgeshowe.Ipsi has terras tenue­runt T. R. E.

4. Aswold holds Chrochesdene.

14. More hold Lands of Titles prior to King William's, amongst which, the Earls Hugh de Ferri­ers, and Alberic de Vere; the first of which, held St. Warburgh of Che­ster, in the time of the Confessor.

Notinghamshire.Snotingham­scire.

2. Elwin and Vlviet held one Carve of Land in Osbernestune, [Page 90] now Swan and Vlviet hold it.

5. Aluric, Buge, and Vlchet, did formerly, and now do hold Lands there.

Yorkshire.

1. Swen.

2. Vlf.

3. Turchil.

4. Chetel.

5. Ramechil.

6. Ravenchil.

7. Torchil.

8. Game.

9. Osward.

10. Tored.

11. Torber.

12. Vctred held several Lands in the time of King Edward, as in the time of William the First. Besides several dispossess'd, who have their Titles allow'd.

Lincolnshire.Lindesire.

2. Sortebrand and Chetelburn hold several Lands.

3. Godrie holds four Oxganges, which were Agremund's his Fa­thers.

Glocestershire.

1. Chetel holds one hide and [...]ne Rood in Wenrick. Glocestrescrie.

2. Osward holds Redmertone.Ipse tenuit T. R. E.

3. Edric the Son of Ketel holds [...]andintone.

4. Eddiet holds Bichemerse.Pater ejus tenuit T. R. E.

5. Brictric holds four hides in [...]achamtone.

6. Alwold holds Pignoscire.

7. Edward the Son of Reinbald olds Aldersnude.

8. 9. 10. 11. 12. Elsi, Dous, Brictric, Edric the Son of Che­ [...]el, and Madoch, held Lands, as [...] the former King's Reign.

Herefordshire.Herefordscire.

1. Edric holds Last.

2. Elmer holds half an hide of the King.Ipse tenuit T. R. E.

3. Osborn the Son of Richard, holds Mildetune.

In these 15 Counties,Vid. Spelman tit. Domes­day. (of thirty de­scrib'd in Domesday) besides others left [...]ut of this Survey, as Northumberland, Westmerland, the Bishoprick of Durham, and Lancashire, except some part of it be taken into Yorkshire or Cheshire, the [Page 92] City of Oxford, and the Shire, which held Lands in their Publick Capacity several omitted through neglect, and others on purpose, as I before observ­ed, there are above one hundred an [...] eighty Free-holders, who derived no [...] under King William's Title; and be­sides the Generality, whose Titles are not exprest, many of which however were of English names.

SECT. 2.

OUr wise Author supposes, that King William gave all the Land of the County of Cheshire to Hugh de Abrincis, Against Mr. Petyt. p. 29. his Kinsman, and a Norman, and wisely ask'd, Whether this was all Crown Lands? The pretended Proof of this he brings in another Book. So that, for a long time, we must rely upon his Ma­stership's Authority.Against Jani. &c. p. 15.

But this is his Demonstration.

In Domesday-Book, after 'tis said what belongs to the Bishoprick, Totam reli­quam terram Comitatus tenet Hugo Comes de Rege cum hominibus suis. But, I can find no greater matter in this, than that under the King he was chief Lord of [Page 93] [...]e Fee. But the gift of the whole [...]ounty generally implies not any thing [...]ore than the Government of it. [...]hus, whereas he would have it, that the [...]eatest part of Shropshire was given to Ro­ [...]r de Montegomerico, Against Mr. Petyt. p. 29. Scyropes­berie. Domesday sayes, [...]e had the City of Shrewsbury, & tot. [...]omitat. and the whole County. But [...]hat is soon explained, & torum Domi­ [...]ium quod Rex Edwardus ibi habebat cum [...] 2 Maner. quae Rex ipse tenebat, and the [...]hole Power or Right to Govern it, which King Edward had there, with [...]elve Mannors which the King himself [...]eld: And this was all the Land that was given, but could not be the great­ [...]st part of the County.

Farther,Cheshire. Domesday. for Cheshire, Leofwick, King Edward's Brother, had it before in the [...]ame manner as Hugh had: And sure­ [...]y, neither he, nor his Brother conquer'd [...]he whole County, nor had Ed. the Crown [...]y Inheritance. And Lupus having it in [...]he same manner that Leofwick had it be­ [...]ore, 'tis evident, that this County was not held under the Feudal Law, brought [...]n by William.

Besides, to shew that the Earl had [...]ot the whole County, 'tis manifest, [Page 94] there were many great Proprietors there as Earl Robert, who held Westone; R [...]chard de Vernon who held Estime, Gislebe [...] Venables, whose Family continues at th [...] day: But indeed the Estate is in an He [...] Female, and several others, some [...] which, for a long time, enjoyed th [...] Dignity of Barons; which Dignity, think, is not yet extinct there.

SECT. 3.

WHereas this Friend to the Engli [...] Nation, for so, doubtless, h [...] has rendred himself, would impose up on us, Against Mr. Petyt. p. 43. as if the English had neither Estate nor Fortunes left, and therefore, it could be no great matter to them by what Law Right, or Propriety other men held thei [...] Estates.

I have already made it evident, tha [...] they had Estates and Fortunes left. shall now shew, that they claimed their Rights, and had them allowed accord­ing to the Antient Law.

And before I come to this, or rather in Confirmation of it, I must observe that even lesser lawful Customs tha [...] those whereby the Descent of Estate [...] [Page 95] was preserved, were continued after the reputed Conquest: thus in the Burrough of Wallingford in Berkshire, Domesday. were Consu­etudines omnes ut ante fuerant.

All the same Customs which were there before: so you shall find numerous Instances of the same Services, from the Lands or Houses, which were before; nay, sometimes less, or none, when formerly there were some, as in Surrey.

Robert de Wate, holds one House, which paid all Services in the time of Kind Edward, now nothing at all. But to the Claims or Titles allowed,Hantescire. Al­dredus frater Ode calumniatur unam virga­tam terrae de hoc Manerio, & dicit se eam te­nuisse die quâ Rex Edwardus fuit vivus & mortuus, & disaisitus fuit postquam Rex Willielmus, mare transiit & ipse diratio­navit coram reginâ, inde est testis ejus Hugo de Port, & homines de toto hundredo. ‘Aldred the Brother of Ode, claims one Rood of that Manner, and says, That he held it the day that King Edward was alive and dead, and was dis­seized after that King William past the Seas; and he recovered it before the Queen: Hugo de Port is Witness of it, and the whole Hundred.’

[Page 96] 'Tis to be observed, that where the County or Hundred attests any mans Plea or Title, this is a solemn Judgment in Domesday Book, that being the way ap­pointed of ascertaining Estates and Ti­tles.

In the same County and Hundred, Hugh de Port, has his Claim allowed, Hanc hidam calumniatur Hugo de Port di­cens eam pertinere ad sua Maneria de Cer­deford, & Eschetune, & ibi eam tenue­runt sui antecessores & hoc testantur tot' Hundr'. This Hide, Hugh de Port claims, saying, that it belongs to his Mannors of Cerdeford and Eschetune, and there his Ancestors held it, and this the whole Hundred testifies.

So the same Hugh claims three Houses and a Corner of a Field, and one Rood, and five Acres of Land, of Turstin the Chamberlain; and of this, he brings the Hundred to witness, that his Ancestors were seized, Die quo Rex Edwardus fu­it vivus & mortuus.

The Tryal in this Cou [...]ty between William de Chornet,In For­cing­bridge Hundr. in Clatings. and Picot the Sheriff of Cambridgeshire, is very remarkable, In isto Hundr. & in isto Maner, tenet Pi­cot [Page 97] 2 Virgat. & dimidium & istam ter­ram calumniatur Willielmus de Chornet, dicens pertinere ad Maner. de Cerdeford, feudum Hugonis de Port, per haereditatem sui antecessoris, & de hoc suum testimoni­um adduxit de melioribus & antiquis ho­minibus totius Comitatûs & Hundr. & Picot contraduxit suum testimonium de Villanis, & vili plebi, & de prepositis, qui nolunt defendere per Sacramentum, aut per Dei judicium, quod ille qui tenuit ter­ram liber homo fuit, & potuit ire cum ter­râ quo voluit, sed testes Willielmi nolunt accipere legem nisi Regis E. usque dum de­finiatur per Regem.

In that Hundred, and in that Man­nor, Picot holds two Rood and a half of Land; that Land, William de Chor­net claims, saying, that it belongs to the Mannor of Cerdeford, of the Feud of Hugh de Port, by the Inheritance of his Ancestor. And of this, produ­ced his Testimony of the better, and ancient men of the whole County and Hundred: and Picot on the other side, brought his of Villains, and inferiour People, and of Bailiffs, who will not de­fend by Oath, or by Gods Judgment, (which I take here, not to be the [Page 98] Ordail, but the Battail, as we find the Tryals, vel bello vel judicio) that he who held the Land,Which was the Issue a­gainst be­ing of Hugh de Port's Feud. was a Free­man, and might go with it, whither he would. Here the County or Hundred testifies, that the stress of de Chornet's Cause, depends upon the Confessor's Law, and so give the Title with him.

In the North and West riding of York­shire, many Claims may be seen, as of Earl Hugh, which I take it, was Hugh de Ferrers, Henry de Ferrers being dis­seized in that County; and 'tis likely, both claim'd by the same Title, Hugh was a very considerable Free holder.

There are many others who are in like Circumstances, as George Malet, William Malet, Orm, and Bunde, Osburn de Arcis, William de Warren, Ligulf, Wido de Credun, Percy, Sortebrand, Gi­slebert.

SECT. 4.

'Tis evident, that King William did not so much as make a new Grant, or Confirmation to men, of what was theirs before, the old Title being sufficiently [Page 99] firm: hence, in Amelbrice Hundred in Surrey, tenuit Almaris sine dono Regis eò quod antecessor ejus Almar tenuit; Almar held without the King's Grant, because his Ancestor Almar held it.

In Glocestershire, Brictric tenet de Rege 4 Hidas in Lechametone & Geldant ip­se tenuit earum 2 Hidas T. R. E. & Or­dric alias duas; Rex Willielmus utram­que eidem Brictric concessit pergens in Nor­maniam.

Brictric holds of the King in Lecha­met [...]ne, four Hides, and they pay a Quit-rent: he held two Hides of them, in the time of King Edward, and Ordric the other two: King William, when he went into Normandy, granted both (that is, the two Hides which Ordric held) to Brictric; so that Brictric en­joyed the other two, not contained in the King's Grant, upon his prior Title.

SECT. 5.

WHereas this Author is pleased to exercise his reflecting Faculty upon that Lawyer in Ed. 3. Reign, Against Mr. Petyt. p. 28. who affirmed, That the Conquerour came not at all to out those who had right Possession,Should be rightful▪ [Page 100] but to out those, which by their wrong do­ing, had occupied any Land in Disinheri­tance of the King and of his Crown; (that is, such Land as was forfeited to the Crown, by their being in Arms against the King) upon which, p. 29. he says, that this Judge spoke out of Design, and studied, and knew only popular and lucrative Law, and not the Constitution of the Nation be­fore his own time.

'Tis manifest, that this free Censurer, studies only parasitical Law, and that if he were acquainted with Domesday book he would not censure this, nor would challenge his Adversary to find any one Plea or Grant of the like Nature; p. 26. with Swanborn's, who pleaded,p. 25. That he was never against the King.

Now, 'tis observable, that we find many Forfeitures mentioned in this Book, which were needless, if the King seized without; so in Essex, in Barsta­ble Hundr. In Burâ de istis Hidis est una de hominibus forisfactis erga Regem; in Bury, one of those Hides belonged to the men, that were forf [...]ited to the King; and this was the way of Expres­sion: accordingly in the Active, we find in Norfolk, Earl Ralf held such Lands, [Page 101] Quando se forisfecit. But more particu­larly, in Cambridgeshire; in Wardune, Hardwin holds of Richard; this did not belong to Richard's Ancestor, but Ralf Waders held it, Die quo deliquit contra Regem, that day on which he was in Arms or Rebellion, offended against the King, and so forfeited; whereas, otherwise it had continued with him: but this compar'd with Indulphus the then King's Secretary, makes a full proof.

Erle Yvo sends to Anjou, to the Ab­bot of St. Nickolas, and gives a Cell, Lands and Tenements, for a Prior and five Monks, in Spalding.

Wulketul Abbot of Croyland, Indulphi Hist. fo. 902. com­mences his Suit for this, in Curia Regis, all the Normans being confederate to­gether, justifie and approve of the De­predations, Oppressions, Slaughters, and all other Injuries committed by Yvo Tal­bois, against the Croylanders, and as in the body of Behemoth, one Feen is joyn­ed to another, they refute the Truth. And that which added to the Heap of the Calamity of Croyland, was the cruel beheading of Erle Walden of Croyland, who was very kind to all the Religions, and was chiefly the best and most wor­thy [Page 102] Friend to the Monastery of Croy­land; and although Arch-bishop Lan­franc his Confessor, asserted, that he was free from all Faction and Conspiracy, and if he died in the Cause, that he would be a Martyr; yet his most impious Wife thirsting after another Marriage, and therefore, most wickedly hastening the Death of her Husband. Also, some Normans gaping after his Counties of Northampton and Huntington, According to our Au­thor, he had all the Lands of these Counties, whereas the King had some. especially, the Anjovin Erl Yvo Talbois, thirsting for his Blood, being most greedy for his Lands and Tenements, which were ve­ry many, in all the Counties of England, the innocent and harmless man is mar­tyr'd at Winchester, the day before the Kalend [...].

Here we see they were forc'd to ac­cuse him of Faction, and Conspiracy, or Rebellion, that the Lands might be for­feited to the Crown, and they might get them for their good Service.

Our man of mighty Vndertakings, thinks to set aside Edwin of Sharburn's Evidences, and exposes the Credulity of his Friend Sir William Dugdale, (whose Obligation for leading him the way, in his Origines Juridiciales, he [Page 103] has returned to the purpose) because he tells us, Sharnburn's name is not to be found in Domesday book, or the Con­querour's Survey; and the Owners of Sharburn, which are there only to be found, are William de Warennâ, Odo, Bishop of Bajeux, Bernerius Arbalistari­us, and William de Pertenac.

'Tis not material that they are repu­ted Owners, since Sharborn had the King's Mandat, p. 25. and possibly might not have the Possession restored, till after this Survey.

2. Often, only the chief Lords of the Fee are named, though not all the Pro­prietors under them.

3. Though we find not Edwin of Sharburn, we find in the same County, Edwin a Proprietor, and Lord of a Man­nor, with a mesne Lord under his Baili­wick and Care, though not holding of him, Sislanda tenuit Ketel liber homo Ed­vini commendatus tantum pro Manerio, & duo Car. Ketel Edwins Free-man held Sisland within his Bailiwick, only for a Mannor, and two Carvs of Land.

Now, 'tis very obvious, that there were great Proprietors, whose Christi­an Names only, were mentioned in [Page 104] Domesday book, They are frequently named without their Ad­ditions. to be sure, not all the Addition by which they were known; to instance, in Edric cognomento Sylva­ticus, this Sirname of his, is not to be found there, (as I take it) and yet he kept great Possessions, which he had of a Title, prior to William's.

Eo tempore, Florentius wigornien­sis. extitit quidam praepotens Minister Edricus, cognomento Sylvati­cus, cujus terram, quia se dedere regi de­dignabatur, Herefordenses Castellani, & Ricardus Scrob, frequenter vastaverunt, sed quotiescumque super eum irruerant multos è suis militibus, & Scutariis perdi­derunt. ‘At that time, there was a cer­tain powerful Officer, Edric, whose [...] was Silvaticus, whose Land because he scorn'd to yield to the Conquerour, the Castellans of Hereford, and Richard Scrob, often wasted; but, as often as they f [...]ll upon him, they lost many of their Souldiers and Te­nants by Knights Service.’

Hitherto he had kept his Lands; and a little after, we find the King and him reconciled, [...] Vir strenuissimus Edricus cognomento Silvaticus, cujus supra memi­nimus cum Rege Gulielmo pacificatur. And soon after this, he accompanies the [Page 105] King to Scotland; but if the Dr. finds him by this Addition in Domesday book, I will allow him to be a man of a very sagacious Invention. p. 26.

4. We find whole Counties left out of Domesday book, and therefore, admit Edwin were not there, 'tis not strange, that he, though a Proprietor, should be omitted, if it were only through the Influence of Erl Warenn: Notwithstand­ing the Exceptions taken to what he calls the famous Legend, and trite Fable of Edwin of Sharnborn, he himself con­fesses, that he had the King's Mandat; and so this Plea was allowed in the ve­ry Instance, which he thinks to be on his Side.

How idle is his note on the Margin of p. 24. against Mr. Petyt.Against Mr. Petyt. &c. p. 19.

Can any man forfeit his Lands to a Stranger, a Conquerour, that could not pre­tend Title, but by Violence and Conquest? As if a Conquerour could not make what he pleas'd a Forfeiture, and were not the more likely to use Rigor, for being a Stranger, having no Tyes of Familia­rity or Blood: besides will not a Con­querour, pretending an Hereditary Right make them who oppos'd it, forfeit? [Page 106] And it shall be taken for just too, by them who acknowledge his Title. No [...] is there more, to favour his Fancy, that King William, by giving away the Lands of Great men, nay, whole Counties, or the Government of them, thereby de­feated the Inheritance or lesser Rights of those who held under them.

As if, for the purpose, the King should grant away the Estate of the Lord Stafford, which, if any were left in him, after any Settlement, was real­ly forfeited; thereby, all that had Leas­es under him, or any other Interest, were wholly divested, which were to make the Attaindure to reach farther than the Blood.

SECT. 6.

BUT, because our Author is a ve­ry sagacious Person, for Informati­ons sake, I am bold to ask him some Questions, occasioned by Domesday­book.

In Andover Hundred,Sorry. Rex tenet in do­minico Cladford, de feudo Rogeri Comitis.

If this had been the King's own Feud, 'twould have been, Rex habet de feudo [Page 107] [...]uo, as we find Robert de Statford had thirteen houses, De honore Comitum de feudo suo. Wherefore, Quere whether all the Lands of the Kingdom were held mediately or immediately of the Crown?

What thinks he of Est de regno Angliae, [...]on subjacet alicui Hundredo, neque est in consuetudine ullâ? So in Surrey, Non ad­ [...]acet alicui Manerio; or, as elsewhere, Fuit posita extra Manerium; or, such an one is commendatus homo to another;Glos. tit. commenda­re. who, if we believe Sir Henry Spelman, [...]wore no Fealty, and held not by any kind of Tenure?

What of Nunquam geldavit, or geldum dedit, nec hidata fuit, or, distributa per Hidas?

What of potuit ire cum terrâ quo voluit, [...]otuit se vertere ad alium Dominum? Which, I should think, argued Free­dom from the Feudal Law?

And, what of Tenet in alodium de Re­ge, Tenent modo 4 Alodiarii, and the like, which to me seem of the same kind with the former?

What of this, which methinks de­stroys all his Whimseys, That under the Title of Terra Tainorum Regis, such as he will tell us, held by Barony, we find [Page 108] several men holding in Alodium of the Seizin of their Ancestors? To instance only in one, Edulf tenet de Rege in Alo­dium unam mansuram in Mortelhante pa­ter ejus tenuit? Spelman's Glos. tit. Alode. Such as he, were Socmen; or Tenants in Free Socage. And indeed, we are fully resolved of this Question▪ in his incomparable Glossary, Glos. p. 29. the Alodia­rii, or Socmen & liberi homines, tha [...] were Possessors of small Parcels of Land [...] but of what Quality and of what Interes [...] in the Nation, Dicat Apollo, were the same with Milites, and with Thayns.

The Free-men there,ib. p. 30. or Tains, Theg­nes, which are said to possess Mannors Towns, or great parcels of Towns; ver [...] many whereof, are found in the Countie [...] bordering upon Wales, with this Addition▪ Et liber homo fuit, or potuit ire qu [...] voluit, were the same with Milites, and Liber homo attributed to such Possessors was the same with Miles.

In Confirmation of the Truth, h [...] speaks by chance, Bollo Presbyter ten [...] Mapledore, ipse tenuit cum aliis septe [...] Tainis T. R. E. Bollo, a Priest, hold Mapledore, he held it with seven othe [...] Thayns, in the time of King Edward; s [...] that an ordinary Mass Priest was a Thay [...] [Page 109] So ten Thayns held but one Mannor, de­ [...]em Taini tenent Chemedecome.

In Cheshire,Waldestrich Hundr. some Thayns did Villain Services, Omnes Taini dicti manerii ha­ [...]uerunt consuetudinem reddere undecim or as denariorum de unaquaque carucatâ terrae & faciebant per consuetudinem domos Regis & quae ibi pertinebant sicut Villani. Nay, we find a Thayn,In Boch­ingham­shire. Azor's man or Feudal Tenant, much more was a free Tenant, one that could quit his Lord when he pleased, Sigelei Hundr. Ul­chetone hoc M. tenuit Azor filius toti Teignus Regis Ed. & alter Teignus homo ejus. Tainus.

But, if such Thayns as these, were ob­liged to attend the King in his Wars, were numerous and considerable, 'tis not probable, that they were bound by the Acts of Tenants in Capite: it may not be impertinent, to shew some of the vast number of Knights, who held of Subjects. I purposely, as elsewhere, leave out the Church, with it's Tenants.

Under the Earl of Arundel, Lib. Rub. in Scacca­rio, in the time of H. 2. Sussex. Pettewr­tha holds two and twenty Knights Fees, and an half.

Garinges eleven.

Holnoc twelve.

Under the Earl de Augo in Rapa Hast­ing, Matthew de Burlin holds ten Knights Fees.

[Page 110] Robert de Ricarvele ten

Richard the Son of William, holds fifteen Knights Fees of Richer de Aquilâ.

In Cornwal, Robert the Son of William, besides fifty one other Knights Fees, which, perhaps, he held of the King, holds twenty of Walter Hai.

Richard de Lucy, holds of the Feud of Ode Malherb, nine Knights Fees.

Under the Earl of Glocester, Jordan Sorus, held fifteen Knights Fees; Ro­bert de Charâ ten, five others held ten, and four, nine Knights Fees.

Hugh de Bolbech owes the Earl the Service of twenty Knights. Bucking­hamshire.

Here are above 170 Knights Fees, not held of the King, and, yet I doubt not, but the Owners were to attend the King in his Wars, something agreeable to the Custom within the County of Worcestershire. Wirecestre­scire in Ci­vitate Wirc. &c.

Quando Rex in hostem pergit, siquis edicto ejus vocatus remanserit, si ita liber homo est ut habeat Socam suam & Sacam, & cum terrâ [...] possit ire quo voluerit, de omni terrâ suâ est in misericordiâ Regis; cujus cunque verò alterius Domini liber ho­mo si de hoste remanserit, & dominus ejus pro eo alium duxerit 40. solidos Domino [Page 111] suo qui vocavit emendabit; quod si ex toto nullus pro eo abierit, ipse quidem domino suo 40. solidos dabit, dominus autem ejus totidem solidis regi emendabit. ‘When the King goes against the Enemy, if any body call'd out, by his Writ, stay'd at home, if he be so free, that he has Suit and Service of Court, and can go with his Land whether he will, he is in the King's Mercy for all his Land; but, whatever other Lord's Freeman he is, if he stay from the Enemy, and his Lord hire another for him, he shall forfeit 40. Shillings to his Lord, who called him out: But, if no body at all go out for him, he shall give his Lord 40. Shillings, and his Lord shall forfeit as much to the King.’

This, I take it, as to the Obligation for Attendance, differs not from St. Ed­ward's, and William the First's provisi­ons for Arms; Henry the Second's Assize, and the Statute of Winchester, this only adds a particular Penalty; all which to­gether,Animad. on [...]an. &c. so. 17. esp [...]ially Domesday-book, mani­festly contradict his Legendary Tales, about King William's governing the Na­tion as a Conquerour. Against Mr. Petyt, p. 29.

[Page 112] And, if the intended History of the Conquest, which has taken him up above these ten years, as I have upon better In­formation, than he had my not having seen above two of the Original Records which I cite, be suitable to this marvel­lous Essay, 'twill make a bulky Legend.

CHAP. III. A Property prov'd by Record, to have con­tinued from within the Reign of the Confessor, to the 26. H. 3. Besides Pi­ctaviensis and Knyghton on our side.

ADditional to the Testimony of Domesday book, I shall produce a Record, as late as the 26. Hen. 3. which shews, That a Property was continued in the English, from before the Reign of the Norman Prince, to that very time; and gives Credit to the Authors, who tell us, that this Prince did not govern as a Conquerour.

Pro Jacobo Archamgere.

Rex Baronibus,Communia de term. Sancti Mich. 35 fin. & anno 36 incipien. H. 3. Rot. primo. Penes Remem. Domini Thes. mandamus vobis quod occasione arrentacionis Serjantiarum, assessae [Page 113] per Robertum Passelewe, non distringas Jacobum de Archamgere per 2 Marc. & dimid. de tenemento quod de nobis tenet per Serjantiam in Archamgere, Serjantia tempore Edw. Confess. (in Comita­tu Southampton, &c.) per Cartam beati Regis Edwardi antecessoribus ipsius Jaco­bi super hoc confectam; sed ipsum Jaco­bum de predictis 2 Marcis & dimid. qui­etum esse faciatis in perpetuum; quia Car­tam prefati beati Edvardi confirmavimus, & ipsam volumus inviolabiliter observari.

Breve est in forulo Marescalli & man­datum est Vicecomiti Southampton comparat. die Jovis, die 15. Jan. Anno Domini, &c.

The King to the Barons: We com­mand you, that by occasion of the Rent of Serjanties, assest by Robert Pass­elewe, you do not distrain Jacob de Ar­chaungere for two Marks and an half, for the Tenement which he holds of us by Serjanty in Archamgere in the County of Southampton, by the Char­ter of the Blessed King Edward, to the Ancestors of this Jacob; but for ever free the said Jacob from the foresaid two Marks and an half; because we [Page 114] have confirmed the Charter of the fore­named St. Edward, and will have it inviolably observed.

Here is an inspeximus, in effect, of the Confessor's Charter, and the Confirma­tion lies in the Judgment, that this was that King's Charter.

Whether the Serjanty here mention'd were the greater, In Kenulph the Mer­cian King's Charter, a discharge of all Services but the Ex­pedition of 12 men with Shields. Burg [...]ote, &c. White's Sacred Law, p. 149. which was Military Tenure, for such there was before William's Entrance. Mr. Selden indeed opposes this, and contends, that what lay up­on Lands then was no Tenure from any Reservation, but one­ly what the Law of the Kingdom had made incident to all Lands. Yet I see not how that will solve a special Reser­vation of a certain number of men: Or, whether the Serjanty were the Lit­tle or Petit Serjanty, is not within our Dispute, because either way here is sufficient Evidence that there was a Pro­perty left in the English, notwithstanding the Clamour of a Conquest. And that we did not receive our Tenures, Against Petit. p. 31. and the manner of holding our Estates, in every respect, from Normandy, brought in by the [Page 115] Conquerour. For this man held in the same manner as his Ancestors did in the time of St. Edward.

And with this agree good Authors,Gulielm. Pictavien­sis, p. 208. Nulli Gallo datum quod Anglo cuiquam injuste fuerit ablatum. ‘There was not given to any French-man, what was unjustly taken from any English-man.’

Now this was a Poictovin, Against Petyt. p. 35. many of which came in with Duke William, and is more to be credited in this matter than the English Monks; who, since he reduc'd the Bishopricks and great Ab­bies to Baronies, thought this Injury done to the Church, as they took it, was no way to be accounted for, unless he were represented as taking from the Laity their Property, which they thought a much lower instance of his Power, than giving this Law to the Clergy, God's special Lot and Portion. But, on the other side, this Poictovin was more likely, for the Glory of William's and his Country-mens Arms, to represent them as great as might be in the number of their Slaves; and to have a whole Na­tion of them, is, doubtless, a glorious thing in the Doctor's eye.

[Page 116] And, with this Poictovin may be joyned honest Knighton, Knighton, p. 2343. lib. 2. cap. 2. who sayes, Quidam possessiones habentes de dicto Wil­lielmo, seu ab aliis Dominis, quidam vero ex emptione habentes, sive in Officiis sub spe habendi remanserunt. ‘There were some who had Possessions of the said William, but some who had them by Purchase, or else, who remain'd in Of­fices, under the hope of having some, (as their Offices might enable them to purchase.’

Here some of the Normans were forc'd to purchase, otherwise they had gone without Possessions. And this must have been of the English, otherwise they would have divided the Land amongst themselves, with their Prince's consent, and need not have made other payment than the Venture of their Lives.

CHAP. V. The Socmen enjoyed Estates of Titles prior to the suppos'd Conquest.

BUT, besides the uncontroulable Authority of Domesday-book, and the Testimony of Authors, well back'd with a plain Record, with the Doctor's good leave, I shall add another Argu­ment, to prove the continuance of the English Rights, or that William govern'd not as a Conquerour. He may know that there were such men as Sokemanni, whose Lands were partible, and who held not by Knights Service. Whereas King William granted out the whole Kingdom, as the Doctor fondly ima­gines, by Knights Service, and the Lands of such Tenants descended to the eldest Son; wherefore, the Sokemanni must needs enjoy their Estates upon Ti­tles prior to King William's, not deriving under his Grant; since their Lands, to obtain that Tenure, must have been an­ciently divided before the time of H. 2. But,Gla [...]vil, lib. 7. cap. 2. in­fra. if there were any Evidence to the contrary, there could have been no Pre­scription [Page 118] to the Tenure. And surely, if it was no ancienter than King Willi­am's Title, the Evidences of the con­trary could not be lost.

Suppose Lands holden in Free-socage, were forfeited to the King, (in which Case,Lambert's Peramb. of Kent. Mr. Lambert yields, that the Te­nure may be alter'd) and he granted it out, to hold by Knights Service: how could a Custom prevail to alter this Te­nure, contrary to the very Grant? If they could produce their Deeds, they shew'd themselves to be Tenants by Knights Service. And, there were so many Sockemanni, even in one County, that of Kent, that though some Gran­tees might lose their Deeds, yet not so many as there were distinct Estates in Socage. For Proof of the Premisses to my Conclusion.

(1.) That there were Sokemanni be­fore William; nay, that for the most part at least, Land-owners were such, appears from St. Edward's Law. This obliged all men to bear Arms,Leges Sancti Ed­wardi de Hereto­chiis, habeant Hae­redes ejus pecuniam & terram ejus sine aliquâ diminutione & rectè divident inter se. proportionably to their real or personal Estate, which last, together with the Land of him that dyed in the Wars, was to [Page 119] be divided among his Heirs. And sure­ly, the Law does not suppose that they must always be female Heirs.

Such as dy'd in the Wars, who were Tenants by Knights Service, according to our Authors Sense of Qui militare ser­vitium debebant, were Sokemanni, hold­ing in free Socage, Glanvil. lib. 7. cap. 2. as Glanvil explains it, Si fuerit liber Sokemannus, tunc quidem dividetur haereditas inter omnes filios quot­quot sunt per partes equales, si fuerit Soca­gium & id antiquitus divisum. ‘If a man be a free Sokeman, then indeed his In­heritance shall be divided amongst all the Sons, if it be Socage, and that an­ciently divided.’

It was not improper to say, if it be Socage, because a Sokeman, in respect of some Lands, might have others, not held in free Socage. This is sufficient Evidence, that such there were, after the Noise of Conquest, and that the Lands were to be anciently divided.

(2.) The Estates deriv'd from the Conquest,Glos. Tit. Parl. Ter­ram totam ita disposu­it ut suum quisque pa­trimonium de Rege te­neret in Capite. were, according to our bul­ky Author, held by Knights Service. Nay, the second part of the Glossary, which the Dr. invidiously imputes to Sir Henry Spelman, tells us, that though [Page 120] William was no Conquerour, yet he divided out, and disposed of all the Land to his great men: Against Jan. &c. p. 99. so that even the Normans Estates were taken away too. And this, that erroneous Glossary makes under the Feudal Law too; for, from thence 'tis inferr'd, that the great Tenants in Ca­pite, had Right to impose Laws upon them that held of them, and to exclude the whole Kingdom besides, from the Great Councils.

This (though no Conquerour) the Dr. left out, either as being ashamed of it, being 'tis little less than a Contradiction, to say, a man was no Conquerour, and yet seized upon all the Lands of the Kingdom, and forc'd them to submit to such Seizure; so that he conquer'd the Land: or, because it contradicts his No­tion of William's being a Conquerour; so that he himself had as much reason to exeept against this Book, as others; but, it seems,Against Mr. Petyt. p. 35. out of a stark Love and Kind­ness to Truth, he left only what was against him, but took what was for his Purpose. And for the Support of it's Credit, tells us a formal Story; the At­testation to which, from outward Cir­cumstances, I never thought it worth [Page 121] the while to examine, since I have so much Reason from within it self, to be­lieve it to be spurious, Against Petyt. p. 13. and so ought he. For, if he have any respect to that great man's Memory, he will not suffer him to say, that William divided out the whole Kingdom, to hold under the Feudal Law; when before he had ob­serv'd of Gavelkind, the general Tenure of the Lands in Kent, Feudalibus legibus non coercetur.

(3.) The Lands of all these Grantees of King William the First, descended to the eldest, being held in Knights Service. Si miles fuerit vel per militiam tenens, tunc secundum jus regni Angliae primoge­nitus filius patri succedit in totum. Glanvil. lib. 7. c. 2. ‘If a man be a Knight, or holding by mili­tary Service, then, according to the Law of the Kingdom, the Eldest shall succeed his Father to the whole.’But for the greatest Authority, we have an Act of Parliament; which, having full Power to alter the Tenure,31 H. 8. c. 3. enacts, that certain Lands in Kent, shall descend as Lands at Common Law, and as other Lands in the said County, which never were holden by Knights Service us'd to de­scend.

[Page 122] Here the Descent of Knights Service is the same with Descent at the Com­mon Law, which was to the Eldest; and this is oppos'd to the Descent of Lands in Gavelkind, which was Socage.

And thus have I proved every thing, which upon this Head was needful, to vindicate the Right of the English, and to prove that their Rights were own'd in Practice, notwithstanding the vain Flourish of a Conquest.

It may be objected, perhaps, that the Feudal Law, which was exacted and ob­served by, and upon only the Normans, might have related only to such as held immediately of the King; for that his Grantees might and did often grant out to others and their Heirs for ever, to hold in free Socage. Yet, this will not do, because such Grantees would have been Free-men; but, all the Free-men of the Kingdom, were Tenants by mi­litary Service, though by their Tenure, any of them were only to pay a Rose, a Spur, a Sum of Money, or any other thing.

Therefore, hereby is my Argument inforc'd, if William had been a Conque­rour in the Sense strove for, as disseizing [Page 123] all the English, and making Grants of their Lands to the Normans, and that to hold by Knights Service; and all the Normans, both they who were here be­fore William's Entrance (if any such had any shares allow'd them) and they that came in with him, or followed for the spoil, were under the Feudal Law, re­quiring Knights Service; and these were the only Free-men. How came there to be such a Race of lawless Free-men, as the Sokemanni? p. 31. And how is it possible, that the manner of holding our Estates in every Respect, with all the Cu­stoms incident thereto, should be brought in by the Conquerour? p. 29. Whoever reflects up­on these things, will (as he says of a reve­rend Judge) acknowledge the Dr. to be very ignorant in the History of this Nation, or that he spoke out of Design, the words which I fairly cite from him, in relation to the Conquest, and the Great Council, suppos'd to have been establish'd there­by.

CHAP. VI. Proved from the Beginnings of Charters and Writs, that the English were not disseized of all, by William the First.

THough even the former Head of the Socmen, such as I find hold­ing in parigio, was a needless Addition to the particular Consideration of Domesday book, Domesday. which might serve in­stead of a thousand proofs, that William the first, did not divide all the Land of the Kingdom to his Followers; and con­sequently did not impose upon the peo­ple, such a Representative as is fondly conjectured. Yet, I cannot omit the men­tion of those numerous Writs and Char­ters, Vid. num­bers in the Mona­sticon. which are directed, Omnibus Baro­nibus & hominibus suis Francis & Anglis. Or, as one of the Charters of William the First,Carta W. 1. Mo­nasticon. vol. 1. f. 397. into one County, and so on occasion, into all Archiepisc. & Justiciariis, Vicecomitibus, Baronibus & fidelibus suis Francis & Anglis Ebora­scire.

Admit, that Fideles signified Feudal Tenants, this shews, that the English [Page 125] had shares as well as others; but, here being the Vicecomites before Barones, I should vehemently suspect, That the Free-holders of the County were meant. At least,Carta An­tiqua n. 11. we find the ordinary Free-holders, and they English as well as French, Vid. his Glos. complemented by Matildis, as persons of some Quality and Interest in the Nation.

Matildis, Dei gratia Anglorum Regina Episcopo London. Justiciariis, Vicecomiti­bus, Baronibus, Ministris, & omnibus fi­delibus Francis & Anglis.

Here being Ministri between Barones & fideles, the Ministry must be such, as by their Tenures were bound to attend in the Wars, and the Fideles, the King's ordinary Subjects, there being no Mat. Paris to explain fideles here, and help us out of this Difficulty, which is made greater by King Stephen's Charter, Ar­chiepis. Episcopis, Abbatibus, Comitibus, Justiciariis, Baronibus, Vicecomitibus, Mi­nistris, & omnibus fidelibus suis Francis & Anglis totius Angliae. Nay, to per­plex the Cause the more, we find under Subjects Free-holders, English as well as French, and these were such as were the Curia Baronum, where Tenants in free [Page 126] and common Socage, were Suitors as well as such as held by Knights Service.

Willielmus, Comes Gloucestriae, omnibus Baronibus, & hominibus suis Francis & Anglis, atque Walensibus.

'Tis not improbable that the Welsh, Vid. Tay­lors Hist. of Gavel­kind. Jani Angl. p. 41. which were some of his Tenants, were then all Socagers: but then the Codex Roffensis, shews how greatly the Eng­lish were interested in the Counties, in the time of William the First.

Praecepit Rex Comitatum totum absque morâ considere, & homines Comitatûs om­nes Francigenas & praecipuè Anglos in an­tiquis legibus & consuetudinibus peritos in unum convenire.

But, of this more, when I come to shew at large, that others, besides Te­nants by Knights Service, served on Ju­ries, &c.

It farther appears, that by Degrees the English were much more considerable than the Normans, or other Strangers; for that they were all lost and swallow'd up in the great body of the English: and therefore they only are named up­on all occasions. And I believe, as far back as Henry the Second's time, the French, eo nomine, will not be found [Page 127] distinguish'd; but, if however, the Te­nants in Capite, or such as were their Tenants by Knights Service, which was laid upon only the Normans themselves, Against Mr. Petyt. p. 43. were the only governing part, and the only Members of the Great Council, the Justiciaries, Chancellors, Lawyers, the Ministerial Officers, Against Mr. Petyt. p. 30. 39. and Under-Judges, Earls, Sheriffs, Bailiffs, Hundredaries, the legal man, and Jurors.

The Government must needs have been too weak to support it's self, when the Ballance of Strength, and Property, was in other hands; and therefore 'twas morally impossible, that only Tenants in Capite should have been allowed to be of the Great Council, when the Na­tion made Terms for it self, upon the Success of their Arms, 16 of King John.

CHAP. VII. The Charters of William the First, and King John, considered: with a Confir­mation of the Notion of the ordinary Curia, distinct from the great or gene­ral Councils.

SECT. 1.

I know but of two Mediums used by the Dr. which look like Arguments, to prove that the Tenants in Capite, by Military Service, were the only Nobility, or the only persons which composed the Great Councils.

1. The Grand Charter of William the First.

2. That of King John.

1. He insists upon two Branches of the first Charter.

Volumus etiam ac firmiter praecipimus & concedimus,Vid. Jani Anglorum facies nova p. 22. ut omnes liberi homines totius Monarchiae regni nostri praedicti habeant & teneant terras suas & possessiones suas bene & in pace liberè ab omni exactione in­justa,Against Mr. Petyt. p. 37. & ab omni tallagio; ita quod nihil ab eis exigatur vel capiatur, nisi servitium [Page 129] suum liberum, quod de jure nobis facere de­bent, & facere tenentur, & prout statutum est eis, & illis à nobis concessum jure hae­reditario in perpetuum, per commune con­cilium totius regni nostri praedicti.

The second Branch is,

Statuimus etiam & firmiter praecipimus,p. 39. ut omnes liberi homines totius regni sint fra­tres conjurati ad Monarchiam nostram, & regnum nostrum pro viribus suis & fa­cultatibus contra inimicos pro posse suo de­fendendum, & viriliter servandum pacem & dignitatem Coronae nostrae integram ob­servandam, & ad judicium rectum, & justum constanter omnibus modis pro posse suo, sine dolo, & sine dilatione faciendum.

This Author would gather from hence,Against Mr. Petyt. p. 39. that all Free-men were Tenants in Military Service; that these were the on­ly legal men, &c. Whereas, if the Divi­sion had not made a Difference in his partial Judgment, he might have found all this to have been fully contained in one of the Laws of the Confessor, where they receive another kind of Explana­tion.

Et ut verum fatear habent etiam Alder­manni in Civitatibus regni hujus,Leg. Ed. de. Gr [...]ve. in Balli­vis suis, & in Burgis clausis, & muro [Page 130] Vallatis, & in Castellis, eandem dignita­tem, & potestatem, & modum qualem ha­bent praepositi Hundredorum & Wapenta­chiorum in Ballivis suis, sub Vicecomite Regis per universum regnum. Debent enim & Leges, & Libertates, & Jura, & pacem Regis, & justas consuetudines regni & antiquas à bonis praedecessoribus appro­ba [...]s, inviolabiliter, & sine dolo, & sine dilatione, modis omnibus, pro posse suo ser­vare, cum aliquid verò inopinatum, vel dubium, vel malum, contra regnum, vel contra Coronam Domini Regis forte in Ballivis suis subitò emerserit, statim pulsa­tis campanis, quod Anglicè vocant MOT­BEL, convocare omnes & universos quod Anglicè dicunt Folcmote, Vocatio & Con­gregatio populorum & gentium omnium, qui ibi omnes convenire debent, & univer­si qui sub protectione & pace Domini Regis degunt, & consistunt in regno predicto, & ibi providere debent indemnitatibus Coronae regni hujus per Commune Concilium, & ibi providendum est ad insolentiam malefa­ctorum reprimendam ad utilitatem regni. Statutum est enim quod ibi debent populi omnes, & gentes universae, singulis annis semel in anno convenire, scilicet in Capite, Kal. Maii, & se fide, & Sacramento non [Page 131] fracto, ibi in unum & simul confederare, & consolidare,So Willi­am's Law. sicut conjurati fratres, ad defendendum regnum contra alienigenas, & contra inimicos, una cum Domino suo rege, & terras, & honores illius omni fidelitate cum eo servare, & quod illi ut Domino suo regi intra & extra regnum universum Bri­tanniae fideles esse volunt. Ita debent fa­cere omnes Principes, & Comites, & simul jurare coram Episcopis regni in Folcmote; & similiter omnes Proceres regni, & Mili­tes, & liberi homines universi totius regni Britanniae, facere debent in pleno Folc­mote fidelitatem Domino Regi, ut praedictum est, coram Episcopis regni, &c. Debent eti­am universi liberi homines totius regni jux­ta facultates suas, & possessiones, & juxta Catalla sua, & secundum feodum suum, & secundum tenementa sua, arma habere, & illa semper prompta conservare ad tuitionem regni, & servitium Dominorum suorum, juxta praeceptum Regis explendum, & per­agendum.

And to speak the Truth, the Alder­men have also in the Cities of this Kingdom, within their Bailiwicks, and in Burroughs inclosed and walled a­bout, and in Castles, the same Dignity, Power, and Manner, under the King's [Page 132] Sheriff, throughout the Realm: for, they ought inviolably, and without Fraud or Delay, by all means, to their Power, to keep the Laws, Liberties, Rights, Peace of the King, and the just and ancient Customs of the Kingdom, ap­proved of by their good Predecessors. But when any thing unexpected, or doubt­ful, happens to fall out of a sudden, within their Bailiwicks, against the Kingdom, or against the Crown of our Lord the King, they ought presently, by ringing of the Bells, which in Eng­lish they call MOTBEL, to call to­gether all the People, which in English is called the Folkmote; that is, the call­ing together, and Assembly of all the People and Countries, because all ought to meet there: and all who live under the Protection, and Peace of our Lord the King, and live in the said Kingdom. And there they ought to take [...] for the Indemnity of the Crown of this Kingdom, by Common-Council▪ And there Provision is to be made to repress the Insolence of Malefactors, for the good of the King­dom. For, it was enacted, that there all People and Counties should meet, [Page 133] every year, once a year, to wit in the beginning of the Kalends of May, and there to confederate and consolidate themselves,Sicut Con­jurati fra­tres. with an inviolable Oath and Faith, as sworn Brethren to defend the Kingdom against Foreigners, and against Enemies, together with their Lord the King, and to keep his Lands and Honours with all Faithfulness; and that they will be faithful to him, as to their Lord, both within and with­out the Realm of Britain. So ought all the Princes and Earls to do, and al­so to swear before the Bishops of the Kingdom in the Folkmote, and also, all the Peers of the Kingdom, and the Knights and all the Freemen of the whole Kingdom of Britain, ought, as is afore­said, to swear Fealty to their Lord the King, in full Folkmote, before the Bi­shops of the Kingdom. [...] Free-men of the whole [...], ought, according to their Faculties and [...]os­sessions, and according to their Fee, and according to their Tenements, to have Arms, and to keep them always in Readiness, for the Defence of the Kingdom, and the Service of their Lords, to be performed and fulfilled [Page 134] according to the precept of their Lord the King.

Here is not that Provision against Ex­actions, which was afterwards necessa­ry; but every other point of William's Grand Charter, is fully express'd.

They were to be sworn Brethren, for the preservation of the Rights of the Crown, for the keeping the Peace, and the Laws and Customs of the Kingdom, which secured the Interests of private-men, to the Liberi homines totius Mo­narchiae, there answers the Folkmote, or Vocatio & Congregatio populorum & gentium omnium, or universi qui sub pro­tectione & pace Domini Reges degunt.

These surely were more than Tenants by Knights Service, for they are distin­guish'd into Principes, Comites, Proceres, Milites, & liberi homines universi totius regni. And 'tis not to be argued, that they were Tenants by Knights Service, because they were to defend the King­dom with Arms, according to their real and personal Estates. For, I take it, none ever heard of a Tenant by Knights Service, of a Chatell.

If our Disputant were as conversant in Antiquity, as he pretends, or as faith­ful [Page 135] as he ought to be, and have left off his Designs, he would have taken no­tice of the Assize of Arms, in Henry the Second's time, which confirms my Sense of the former Laws.

Quicunque habet foedum unius militis habeat loricam & cassidem & clypeum & lanceam & omnis miles habeat tot loricas & cassides, Hoveden. & clypeos et lanceas quot ha­buerit foeda Militum in Dominico suo qui­cunque liber laicus habuerit in Catallo, vel in redditu ad valentiam 16 Marcarum habeat loricam et cassidem et clypeum et lanceam quicunque liber laicus habuerit in Catallo ad valentiam 10 Marcarum habeat halbergel­lum et capelet ferri et lanceam. Et omnes Bur­genses et tota communia liberorum hominum habeant Wanbais et capelet ferri et lanceam: et unusquisque juret quod infra festum San­cti Hillarii haec arma habebit, et domino Regi, scilicet Henrico, filio Matildis Impe­ratricis, fidem portabit, et haec Arma in suo servitio tenebit secundum praeceptum su­um et ad fidem Domini Regis et Regni sui. ‘Whoever has one Knights Fee, let him have an Habergeon and Buckler and Lance, and let every Knight have so many Habergeons and Bucklers and Lances, as he has Knights Fees in his [Page 136] Demeasn, or under him. Whatever Free Lay-man has in Chatells, to the value of fifteen Marks, let him have an Habergeon and Buckler, and Lance. Whatever Free Lay-man has in Chat­ells, to the value of 10 Marks, let him have an Halbert and Capelet of Iron; and let all Inhabitants of Towns, Ci­ties, Burroughs, and all the Commo­nalty of Free-men, have a Wanbais and Capelet of Iron, and a Lance: and let every one swear, that within the Feast of St. Hillary, he will have these Arms, and will bear Faith to their Leige King, to wit to Henry the Son of Ma­tildis the Empress, and will hold these Arms in his Service, according to his Precept, and for the Defence of their Lord the King, and his Kingdom.’

Good Mr. Dr. Were all those who were to bear Arms in the King's Service, his Tenants by Knights Service? Agree­able to this, one of the Enquirers upon the Statute of Winchester, 34 Ed. 1. is, If they have Weapons in their Houses ac­cording to the Quality of their Lands and Goods, for maintenance of the Peace, ac­cording to the Statute.

[Page 137] Our Author,p. 1. who has an admirable Faculty of rescuing these sacred things, from groundless and designing Interpreta­tions, would make the solemn Assembly in the Folkmote, In Folcmoto semel quo­tannis sub initio Kalen­darum Maii (tanquam in annuo Parliamento) convenere Regni Princi­pes tam Episcopi, quam Magistratus Liberi ho­mines. no more than an ordinary County Court, and is pleased to put a Slight upon the Authority of the true Sir Henry Spelman, who rightly takes it for a Great Council.

And the new convincing Reason for the former Sense,Glos. tit. Geniotum. is, because the Court, where Causes were determined before the King's Provost or Officer,New Glos. p. 19. is called Folkmote too; but, pray why is not this the great Folkmote? And why may we not from hence take the Platform of the Great Councils in these Times, and con­sequently, of such as King William con­firmed, together with the Laws of the Confessor.

Was an ordinary County Court, in time of War or Danger, to act as a Council, in providing for the Safety of the Crown and other things, for the profit of the Kingdom? And were the Bishops of such a spiritual Nature, that they could ani­mate the whole Kingdom, as the Soul does the Body, and be all at the same [Page 138] time in each distinct County of Eng­land? Jani Angl. facies nova. p. 34. This clears, beyond Exception, the Charter of Henry the First, which provides for the Assembly of the Coun­ties and Hundreds.

If he had look'd but a little farther, de Heretoc, he would have found a Folk­mote that was held twice a year, when this was but once; and the Sciremote di­stinct from that. The first was the She­riffs Tourn, the other, the County Court; and that observed by him, might have been either the monthly Sciremote, or that Folkmote that was held twice a year. Ita vero bis Folkmote singulis an­nis semper celebrari debet per universos Co­mitatus, &c.

But, to convince him more fully of the Absurdity of his Confidence: He ought to remember, that the very Law whereby he would prove all the Free-men of the Kingdom to have been Te­nants by Knights Service, was in Con­firmation of the Confessor's Laws, and that granted to those who had lived un­der them, and knew the Benefit of de­fending themselves and their Properties in the Great Councils, and the Nation too, there, or by their Arms elsewhere, with­out [Page 139] out trusting the manage of all, to such Thayns as held immediately of the King. Nor were they then likely to quit their former Advantages, when as appears by the Story, they were in a probable Condition of gaining more, if they would: for, the English had got toge­ther, by the Encouragement of Abbot Fretherick, Exercitum numerosum & for­tissimum, a numerous and most potent Army: and in their Head, was he who was the only Heir to the Crown, and that a Title above the Confessor. Up­on this, Prudentiâ feliciter eruditus, ha­ving the Happiness to follow his Inte­rest, and comply with the Occasion, he granted St. Edward's Laws, with some Additions indeed, but not with such as would defeat the whole. And I affirm it, that though in his Additions he pro­vides about the Tenures, or other mat­ters of his then or future Tenants, yet there is not any thing which creates a feud over the whole Kingdom.

Indeed, the Dr. who understands not, for it was beyond his Sphere, that Ser­vice laid either by Common or Statute Law upon all free Lands, such as before the Conquest, and since, the Burgh-bote, [Page 140] the Bridge-bote, and the Expeditio; the last of which, we have been disputing of, under the Law of Arms, is a Service but no Tenure, Tit. Hon. as Mr. Selden has right­ly shewn, would infer that, because the Conquerour in Affirmance of St. Edward's Laws, enacts, That they shall for ever, or Jure haereditario, enjoy their Lands free from all Manner of Charge, but their free Services, (which indeed, tho it implies not his raising Tenures uni­versally, does not exclude such, as him­self had raised) that therefore all were made Feudal Tenants, Quod restat pro­bandum.

SECT. 2.

FOR King John's Charter, If he thinks fit to read over the Book that treats of it, Against Jan. &c. p. 47. once more, and to observe it well, and compare it with what he hath said, he will find it anticipated and answered; and if he hath not a mighty strong Fancy of his own Abilities, must be ashamed of his impertinent Rhapsodies. Since 'tis there abundantly proved, that though that King's Charter seems to some Understandings, to make ex­press [Page 141] provision for the summoning the Great Council of the Nation; yet, it ex­pressly provided for the summoning the lesser Council, the more ordinary Curia Regis only; the Tenants which were Members of it, standing in need of a Law, to relieve them from some Hard­ships they were under. Whereas, the constant practise from the Reign of Wil­liam the First, inclusively downwards, evinces, that they who composed the Great Council, had maintain'd their Right, ad habendum commune Concilium regni, uninterrupted: for a general proof of which, the Authority of Bra­cton was us'd, which shews, that be­sides such Payments as lay upon the Kings Tenants in Capite, or had their Rise from Custom, there were other intro­duc'd by the Common Consent of the whole Kingdom; whence 'tis easie to conclude, that King John's Charter does not exhibit, that is, prrticularly set forth the full form of our English great and most general Councils in those days. Jani, &c. p 1.

Though there is a general Reference to all the constituent parts of those Au­gust Assemblies, and to be sure, nothing to prove that Tenants in Capite were the only Members of them; yet, what [Page 142] others have thereby Right ad habendum Commune Consilium Regni, is not exprest, how strongly soever it may be imply'd from the words, even without the In­terpretation of practise. That others had Right, is undeniable, from the words, and 'tis as clear from practise, who those others were, and whether or no all the Members of the great Coun­cils of the Kingdom, or even all such as were Tenants in Capite, came to Council in Person, either upon general or special Summons, as such Tenants did to the Conventions, for matters of their Tenure, is not mentioned, but left to that ancient Course and Right, which the Practice or Fact explains.

Tho this last be barely of the manner of Summons, yet it shews, that the manner is mentioned only in Relation to the form of an ordinary Curia Regis, as I shew the Council of Tenants to have been.

The words upon which our Dispute is, are these;

Nullum Scutagium, vel auxilium,Mat. Paris fol. 257. ponam in Regno nostro nisi per Commune Consili­um regni nostri, nisi ad Corpus nostrum re­dimendum, & ad primogenitum filium no­strum militem faciendum, & ad primoge­nitam filiam nostram semel maritandam. [Page 143] Et ad hoc non fiet nisi rationabile auxili­um. Simili modo fiat de auxiliis de Civi­tate Londinensi & Civitas Londoniensis, habeat omnes antiquas Libertates & Libe­ras consuetudines suas tam per terras quum per aquas. Praeterea volumus & concedi­mus quod omnes aliae Civitates, & Burgi & Villae, & Barones de quinque portubus, & omnes portus habeant omnes Libertates, & omnes liberas consuetudines suas, & ad habendum Commune Concili­um Regni de auxiliis assidendis, ali­ter quam in Tribus casibus praedictis: & de Scutagiis assidendis submone­ri faciemus Archiepiscopos, Episcopos, Abbates, Comites, & majores Barones Regni sigillatim per literas nostras, & praeterea faciemus submoneri in generali per Vicecomites & Ballivos nostros, omnes alios qui in Capite tenent de no­bis, ad certum diem scilicet ad termi­num quadraginta dierum ad minus, & ad certum locum in omnibus literis submo­nitionis illius causam submonitionis illius exponemus, & sic factâ submonitione ne­gotium procedat ad diem assignatum, secun­dum Consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint.

My Inference from hence, as I find Et de Scutagiis assidendis, di­vided [Page 144] in a distinct period from what went before; the Dr. how foul soever his Reflection of New-face-Maker is, Against Jani &c. p. 3. has render'd not unfairly; viz. That the Ci­ty of London, all Cities, Burgs, Parishes, or Townships, that is the Uillani, their Inhabitants, the Baroons of Free-men of the five Ports, and all Ports should amongst other free Customs enjoy their Right of be­ing of, or constituting the Common Council of the Kingdom.

And that this reading, and my Dedu­ctions from it, are not so far remote from Reason and Sense, Against Jani &c. p. 60. that no man but my self could ever have thought of them, ap­pears, in that he, or they who Mid­wiv'd —into the World the spurious Glossary,2 part of the Glos. use some Artifice, to keep them who have not read this Charter, from falling upon this easie way of an­swering the Doctor's whole Book; and therefore they castrate the Charter, and leave out all the provision for the Liberties and free Customs of the several integral parts of the Kingdom, as if their imaginary General Council, had swal­lowed up the Liberties and Freedoms of all them who held not of the King,Nota, A Tenure in Capite is when the Land is not holden of the King, as of any Honor Castle or Mannor, &c. But of the King as of the Crown. as of his Crown, or in Chief; and this some [Page 145] would rather have effected, than that the Commons of England should be thought to have had any Right affirm'd by so anci­ent a Law,Spelman's 2 part of the Glos­sary, Tit. Parliamen­tum. and that this was apprehended when the marvellous Discoveries worthy to be inquired into, under Title Parlia­ment, Bless'd, the World, may well be ga­ther'd from the printing only as much of that part of the Charter, which is now in Debate,If but one had an hand in it. as in the Publisher's own Judg­ment, he thought would fit his Purpose, concealing the rest. In that Glossary, there is no more than this;Spelm. Gloss. Col. 452. Nullum Scuta­gium, vel Auxilium ponam in regno nostro nisi per Commune Concilium Regni nostri. 1. Nisi ad corpus nostrum redimendum. 2. Ad primogenitum filium nostrum Militem faciendum. 3. & ad pri­mogenitam filiam nostram semel maritan­dam, & ad hoc non fiat nisi rationabile auxilium. Nota, the Omission here. Et ad habendum Com­mune Consilium Regni, de auxiliis assidendis (aliter quam in tribus Casibus praedictis) et de Scutagiis assiden­dis, summoneri faciemus Archiepiscopos, Abbates, Comites & Majores Barones sigil­latim per literas nostras, & praeterea facie­mus summoneri in generali, per Vicecomites & Ballivos nostros, omnes alios qui in Ca­pite tenent de nobis, ad certum diem, s [...]ili­cet [Page 146] ad terminum quadraginta dierum ad minus, & ad certum locum in omnibus lite­ris submonitionis illius, causam summoniti­onis illius exponemus; Et sic factâ summo­nitione, negotium procedat ad diem assigna­tum, secundum Concilium eorum qui praesen­tes fuerint, quamvis non omnes summoniti venerint.

By the partial citation of this shred or end of the Charter, 'tis a clear case, that Et ad habendum Commune Conci­lium Regni is there, in express words appropriated to Tenants in Capite, whatever may have been reserv'd to others in the general provision for all their Liberties and free Customes; and the Publisher hath so dexterously and effectually patched the Fragments to­gether, that the Reader must be forced, according to those curious Appearan­ces, to assent to the Publisher, and Doctor's fallacious Assertions, that none but the Tenants in Capite made the Commune Concilium Regni, the City of London, and all other Cities, Bur­roughs, Ports and Towns, or Parishes, (whose Rights are there reserved) be­ing clearly left out in the Glossary; whereas, 'twill be very difficult to one that reads the whole together, not to [Page 147] think that, admitting ad habendum Com­mune Consilium Regni, be there appro­priated to the Kings Tenants in Chief, yet the Aid and Escuage they are im­power'd to assess, must be such as con­cern'd them onely. A reservation for the Liberties and free Customs of all the parts of the Kingdom, following im­mediately upon mention of the Com­mon Council of the Kingdom, which, un­doubtedly had, of Right and Custom, a larger Power, than barely the granting of Taxes. But, if Et ad habendum Commune Concilium Regni de aux­iliis assidendis, aliter quam in tribus casi­bus praedictis, ought to be joyn'd to the Liberties and free Customs of the whole Nation, reserved by King John's Charter, then that darling Notion of a Parliament of the King's Tenants only, (no more to be prov'd than that we had Parlia­ments of Women as well as others) falls to the ground.Vid. Jan. p. 239.

And, by the Dr's good favour, there was no need of proving, that, amongst the other Customs of the Cities, Bur­roughs,Against Jan. p. 4. &c. this of enjoying a Right of being of, or constituting the Common Coun­cil of the Kingdom was one of them, any otherwise than from the express words [Page 148] of the Charter: nor could I justly be blam'd, for not going first to prove that such were Members, before my saying, that if they were so before, and, at the making of the Charter their Right is pre­serv'd to them by it, and is confirm'd by the Charter of H. 3. c. 9. Since in all mens Logick, but the Dr's, the Ar­gument is to be laid down before it can be made good, and the thing to be prov'd here is but the minor of a Syllogism.

Which Argument being founded up­on Fact, which the Dr. would have to be the onely Controversie between us, p. 1. I may wave for a while, and yet there's no doubt but I prove a Right, if I shew, that amongst other Liberties and free Customs, all parts of the Kingdom here enumerated, were, by the Words of King John's Charter, to enjoy a Right ad habendum Commune Concili­um Regni.

The Dr. agrees, So Matth. Paris. Against Jan. &c. p. 62. that King John's Char­ter, and that which H. 3. granted in the 9th of his Reign, were alike in all things.

Wherefore, if I can shew the likeness, I hope 'twill qualifie and abate our Au­thor's great Wrath, for my proving from thence a provision for a more General Council, than one made up of Tenants onely.

[Page 149] For,p. 63. being like, 'tis not necessary that the Words should be the very same, but the Sense; and, if we are sure by Record that we have the right words, we are certain, if Records may explain Matthew Paris, that the likeness he meant consist­ed in the Sense. Since therefore, in the Great Charter granted 9 H. 3. (as I find also one in Secundo) there is in a Chap­ter intire by it self,The hand­writing of E▪ MS. pe­ues Dom. Petyt. as the Lord Cook cites it, Scutagium de caetero capiatur sicut capi consuevit tempore H. avi nostri, and no other provision is in any part of the Charter made for the Great Council of the Nation, than what is contain'd un­der the Liberties and free Customs of eve­ry particular Place; and yet this whol­ly agrees with, and expresses the Sense of King John's. Et de Scutagiis assi­dendis must be disjoyned from ad habendum Commune Concilium Regni, aliter quam in tribus casibus prae­dictis.

And if so, then the Tenants in Capite, who are under that Division, have no express provision there made for their Summons to the Great Council of the Nation, but are, with others, left for that to the antient Law, as it was in the time of H. 2. whose Laws, both Char­ters, [Page 150] that were in nullo dissimiles, rein­forc'd.

And the Charter 9. H. 3. being after a strict Inquisition concerning the Liber­ties which were in England in the time of King H. that King's Grandfather;Mat. Paris ed. Tiguri f. 305. it appears, that the Tenants in Capite had neither in the time of H. 2. nor at any time after, Right to impose any Tax besides Escuage only, for the taxing of which, they were to have Summons, as is express'd and provided for by King John's Charter, and if both Charters were in every thing alike, was the Cu­stom in the time of H. 2.

And though some of the Arguments in my Book may drive at their being a Council for Tallage too,Vid. the Additi­ons. yet 'tis only up­on the Advantage is given me from the Dr's making the Tenants a Council for all manner of Aid, as well as Escuage.

This great Antiquary keeps a pother to make us believe that the Records of H. the Third's Charter are of no credit, compar'd with his interpretation of Matth. Paris: and in answer to the Con­viction from the manner in which the Charter of H. 3. expresses the same thing with that of King John's, tells us magi­sterially, [Page 151] that the Great Charter common­ly attributed to H. 3. was non of his, but properly the Charter of E. 1. But when he sayes it was rather his Explication or En­largement of that Charter of King John and Henry 3.p. 63. He, by an unlucky dash with his pen, hath spoil'd all, and yields the Cause, granting that Et de Scuta­giis assidendis ought, according to the meaning of King John's Charter, to be divided; and in another Clause, from Et ad habendum Commune Conci­lium Regni, and consequently, that the Common Council of the Kingdom consisted of more than Tenants in Capite.

If,Against Jan. &c. p. 64. as the Dr. contends, There is no pro­vision made for any Summons to Great Councils, or Parliaments, in the Charter confirm'd 25 E. 1. And yet that Charter, as appears by Record, is word for word the same with that which was granted 9 H. 3. and the Charters of H. 3. and King John, were not found to disagree in any thing, then there was no Provision made in King John's Charter, for any Summons to Great Councils, or Parliaments; no, not so much as a general Provision, which I yield. And if he will have it, that the Charter of E. 1. was most properly his Explication, or En­largement of that Charter of King John, and [Page 152] H. 3. Does he not therein yield, that there was provision made for Summons to Great Councils, in the providing for all the Liberties and Free Customs of particu­lar places: and if ad habendum Com­mune Concilium Regni, be taken in King John's Charter, as joyn'd with the Customs, in the several parts of the Kingdom, and so that of being of, or constituting the great Council, is exprest a­mong other their Liberties and free Cu­stoms, The Charter of Ed. 1. may well be taken for an Explication of the Charter of King John, and if it were doubtfull, what King John's Charter meant by the Commune Concilium Regni, the other makes it undeniable, that no other Common Council is meant in King John's but such as was provided for, by the Re­servation of the Liberties, and free Customs even of every Parish; and, as Generals in­clude particulars, tho the Charter of H. 3. and E. 1. have not the Right ad haben­dum Commune Concilium Regni, Nota, The provision for raising Escuage is no less ge­neral in the Char­ters of H. 3. and E. 1. express'd, yet they do not in any thing disagree from King John's. Whereas, if the Council, which according to the Charters of H. 3. and E. 1. and the pra­ctise in the time of H. 2. was to raise Es­cuage, was the only Common Council of [Page 153] the Kingdom, intended by King John's Charter. 'Tis evident, that there was a Disagreement between the Charters, for there is no provision in general, or parti­cular, for any such Common Council of the Kingdom; for particular provision, there can be no pretence, and the same general expressions which affect them, take in others with them, unless they were the only men that had Liberties and free Cu­stoms in any part of the Kingdom, even as late as 25 E. 1.Against Mr. Petyt. p. 39. which is so ridiculous a Whimsey, that it deserves no answer, tho it be patroniz'd by the Dr. who supposes, that Tenants in Military Service, and they, to serve his Turn, must be all Tenants in Capite, were the only Free-men of the King­dom, till 49 H. 3. But it seems, others had then a general Enfranchisement procur'd by the successful Barons, An. 49 H. 3. to lessen their own Power.

'Tis particularly to be observed, that this so mistaken and controverted part in King John's Charter, concerning the Summons of all the Tenants in Capite, was not only left out in the Magna Charta, confirm'd in Par­liament, 2 H. 3. which was but 3 years after the making of King John's Charter; and in the Magna Charta, confirm'd 9 H. 3. which was but ten years after the making of King [Page 154] John's; but likewise, in the Confirmation of the Charter, An. 37. of that King Henry, as appears by the Legier book of the Pri­ory of Coventry, in the hands of that great­ly learned Gentleman,MS. Penes dominum Marsham▪ John Marsham Esq but also, there is not a word of it in the Magna Charta, confirm'd 25 E. I. which the Dr. yields to be an Explication of King John's: and instead thereof; whereas, the assessing of Escuage was mentioned about the middle of King John's Charter; in those Charters of H. 3. and E. I. there is a par­ticular and distinct Chapter, viz. 37. con­cerning Escuage, and that the very last, ex­cept the saving and reserving to the Arch­bishops, Bishops, Abbots, Priors, Templars, Hospitalers, Earls, Barons, and all others, as well Ecclesiastical as Secular persons, all their Liberties and free Customs, which before they had.

But, as to the way of raising Escuage in an especial manner, it is referr'd to the an­cient course of Law, as 'twas in the time of H. 2. whose Laws in general, were then intended to be confirm'd. I cannot but make a farther Remark, taking in that evidence of Fact, which for a while I laid by, that in all those Charters since King John's, upon the several Confirmations, the Arch-bishops, Bishops, Abbots, Priors, [Page 155] Earls, Barons, Knights, Free-holders, and all of the Kingdom, are mention'd, as granting to the Crown, a 15th of all their moveable Goods, and these that granted the Subsidy,Register f. 175. in the old Register of Writs, an Authority uncontrolable, are called Commune Concilium Regni.

Wherefore, 'tis impossible for any man of Reason, that considers, to fancy that King John's Charter, in the sense of the Dr. and others, could exhibit the full form of the Common Councils of the Kingdom or Parliaments, till 49 H. 3.

Take my sense of the Council, which way soever you read it, under the Liber­ties and free Customs, will be comprehend­ed their whole Interest in the Legislature; whereas otherwise, according to this Charter of all their Liberties, the King's Great Council had then only Power to raise Taxes, though we find, that all along they advis'd de arduis negotiis regni, and consented to what passed into a Law. Wherefore,Against Jan. &c. p. 13. 'tis strange there should not have been the same care taken that they might have thier Rights in Council setled, as well as their Summons to it: but if this Charter setled no other Right than this of granting Taxes, Quere, What other power the Great Councils have now, by our Author's Prin­ciples? [Page 156] For, admit that by the New Go­vernment, which, he says, was fram'd and set up in the 49th of Hen. 3. a Right of coming to the Great Council, was giv'n to a body of men, who before that had none; yet there was no additional power given to the Council it self, that he or any man can shew.

Because I would encounter the whole Force which they raise by colour of this Charter, I address'd my self chiefly to the proving, that, admitting that Et ad haben­dum commune consilium Regni aliter quam, ought to be joyn'd, as of the same period with de Scutagiis assidendis, 'twill not make for the purpose of them that urge it, being, upon strict Inquiry, it cannot be thought to extend farther than to such matters as concern'd Tenants in Chief only.

That this must be thus confin'd, is prov'd.

(I.) Because there were Majores Barones, not excluded by this Charter, and so their ancient Right continued, tho they are not within the meaning of that part he insists upon; for this is only of Tenants in Capite, that is, such as were subject to the Feudal Law. The Earl of Chester for instance, was not under it as Earl of Chester. Wardship was a necessary Appendix to that Tenure; but, even the Tenants within that County, [Page 145] though holding other Lands of the King by Knights Service, were howe­ver out of the King's Wardship, much more the Count Palatine. And surely, no body before the Dr. ever took him for a Feudal Tenant, by reason of the County of Chester, though he might be oblig'd to attend in the Wars, and pay Escuage in case of Failure, for other Lands held in Chief, in other Coun­ties.

(2.) There were others came, and upon other occasions than what are here mentioned, as Falcatius de Brent, who was to come even without forty days notice, which was required in the Case here; and whereas, giving Advice in great Affairs, and the making of Laws, were transacted in the Great Councils, no such thing is mention'd in this.

(3.) We have the Resolution of a whole Parliament, the 40th of Ed. 3. That the Common Council of the King­dom, of Tenants in Chief, was not the Great Council of the Kingdom; for that King John resigned his Crown in the first Council, but as they declare, not in the last: and this the very Circumstances, attending the Resignation, evince.

[Page 146] (4.) If the opposite Doctrine be true, then all the dignified and inferiour Clergy, which did not hold in Capite, Abbots, Priors, &c. were excluded.

(5.) This must needs be no more than a Common Council of the Kingdom, for assessing Escuage, and such other Aid as lay upon Tenants in Capite only; be­cause, Tenants only, stood in need of Relief from this Charter, they only be­ing concerned in the three things reser­ved to the King, or in the Additions to them, none other being charged in that kind, without more general Consent, and more than Tenants being Parties to the Grant. Besides, not only the advan­ces upon Tenants Services, but the or­dinary Incidents were called Auxilia, as well as those others, which according to Bracton, were not called Services, nor came from Custom; but were only in case of Necessity, or when the King met his Peo­ple, as Hydage, Corage, and Carvage, and many other things, brought in by the common Consent of the whole Kingdom.

Now, where the King reserves Inci­dents to Tenure only, 'tis to be suppo­sed, that the Reservation is out of the thing before mentioned, and so that [Page 147] must be Services because of Tenure, none but Tenants being named; where­as, when others are named, we may well suppose the Aids given by others too, to be intended.

(6.) We may here divide the benefit to each sort of Tenant in particular.

I. As the Tenants by Socage Te­nure only, were talliable, and that us'd to be without their own Consent: here they have a Consent given them.

2. As Tenants by Knights Service, though not talliable, yet had hardship in the Obligation to sudden Attendance, convenient Notice is given, and it should seem, that the want of this for the as­sessing of Escuage, was their only grie­vance proper to be redrest; for their Attendance in the Wars, was to be go­vern'd by Necessity; and, as a Court of Justice, there was no need of them.

(7.) There is a Difference to be ob­served all along, between the Great Council, and such an one as is mention­ed in this Charter I. For the Persons composing the one and the other. 2. The matters of which they treated. And 3. the times of holding them.

[Page 148] For the Great Councils, by his own way of arguing, there was at least one Great Council, in the Reign of William the First, where, were more than Te­nants in Chief. The Tenants in Chief, he supposes to have been only the Nor­mans and Foreigners, who were Ene­mies to the English Laws, and the only great men by his Rule; wherefore, if the English Laws were retained at the Petition of any great body of men here, they must be populus, Jani An­glorum fa­cies nova. p. 55. inferiour People of England.

This was, Ad preces Communitatis An­glorum, Universi compatriotae regni pe­tition'd, as appears in the very Body of the Laws, then received: but these, as despicable as they were, had got toge­ther a numerous and mighty Army, of which, they made Edgar Etheling Ge­neral; these are all called Primates, mitius coepit agere cum primatibus regni. To shew that 'twas matter of Council, 'twas argued Pro and Con at Berkham­sted, Selden. ad ead. fo. 171. where, post multas disceptationes, af­ter many Disputes, the English Laws were setled.

I need urge no more in this Reign, except that which he hath yielded to [Page 149] my hand, in effect, viz. that all the Free-holders of the several Counties of Eng­land, met this King in a Great Council at Salisbury. For, he himself tells us, that all the Free-men of the Kingdom, held by Knights Service, and here were all the Knights; so more than Tenants in Capite, and all the Free-holders too, as they were Knights, all holding by Mi­litary Service.

But, if there were other Freemen, such as held in Free and common Socage, qui militare servitium debebant, who ow'd Military Service for the defence of the Kingdom, though they held not by it, why were not these Knights, as well as the others,Glos. p. 10. since Tenure did not alter the Condition of the Person? Especial­ly, some of the Chief must have been such, with much more Reason, to be sure, than the Chief Knights under Te­nants in Capite, came to the Great Coun­cils, or had other Liberties, by vertue of that Law, which he supposes to have related only to Tenants in Capite. Does he answer the Law of William the First, which it seems, was my idle Invention, of Common Free-holders being made Milites in the County Court,Jan. p. 47. by the [Page 150] Sheriffs delivering them free Arms, in pleno Commitatu? But, what says he to the Records and Statute, cited to prove that all the Free-men of the County were Knights? He has not so much as told us, the Argument is unintelligible; but he thinks he has me upon the Hip, for ap­propriating the Milites to the Sheriffs, Knights, since the Earls and Barons had their Knights, and 'tis Milites illorum: but, admit they had, the Sheriff was their proper Leader. Indeed, if the Sum­mons had been to the War, every Te­nant in Chief must have produc'd his Quota of Knights. Besides, though 'tis Milites illorum, and others besides She­riffs were there, yet 'twas before seem­ingly limited, Barones & Vicecomites cum suis Militibus, and then, Milites il­lorum must be in the same Sence. But, we are told, that the Sheriffs were some of them great men, Pares Comitum, with Knights under them; but, he does not vouchsafe to take notice, that I before obviated this by the Observation, that then the Sheriffs would have been there as Barons, [...] p. 50. or it may be, as Earls, if they were properly Earls Peers, as we are taught.

[Page 151] In one, if not both of these Councils, were all they that came to the grand Folkmote, in the time of the Confessor. By the like Council, William 2. William the Second was chose Consilio & Rogatu principum suorum, Jani &c. p. 57. cleri quoque & populi petitione, & electione.

In this Reign, Jani &c. p 58. we find at Council, Proceres & conglobata, & coadunata multitudo, totius Regni adunatio; and the Laws pass'd by the Consent of the Mul­titude. ib. p. 60. Adquievit multitudo omnis, unde cùm omnes silentio pressi continuissent, sta­tutum est.

In the Reign of Henry the First,ib. p. 224. H. 1. No­bilitas populusque minor, were assembled at Council.

In King Stephen's time,Stephen. even the sicut proceres, Traders, Nobility only by re­putation,p. 66. & 67. were at Council, besides all the Barons.

At the Council at Clarendon,ib. p. 185. & 186. Hen. 2. in the 11 of Hen. 2. were Prelati, Proceres, &. populus regni, or, the Body of the Realm

In the 15th of King John, we find summon'd to a Great Council, all that owed Knights Service, the Feudal Te­nants: p. 230. & 231. besides these, the Barons and four Knights for every County; which two [Page 152] last bodies of men could not have been such by their Tenure, because they were distinguish'd from such.

In the 30th of Hen. 3.Hen. 3. we find sum­mon'd, all the Tenants in Capite, and two for every County, to answer for all the Free-holders, Vice omnium & singulo­rum. The Prior of Coventry pleads, that besides the Services of Tenants,Jan. &c. p. 244. there were even in this time, certain Subsidies per magnates & communitatem regni spon­tanea & merâ voluntate Regi concessa, & tam de tenentibus aliorum, quam de ten' de Domino Rege levanda. p. 236.

Whatever might have been the Sense of vetus, & novum feoffamentum, at some times, as by Bracton we find novum feof­famentum barely, as in Relation to the time before the reputed Conquest. Bracton, lib. 1. c. 11. Sunt & alia genera hominum in Maneriis & Dominicis Domini Regis, qui sicut alibi, tenent liberè & in libero Socagio, & per Servitium Militare ex novo Feoffamento, & post Conquestum. ‘There are also, other kinds of men in our Lord the King's Mannors and Demeasns, who, as elsewhere, hold freely, and in free Socage, and by Knights Service from the new Feoffment, and that since the Conquest.’

[Page 153] Yet, in the Reign of Henry the Third, we find the Vetus, to be that according to which the King's Tenant was to an­swer for the number of Knights Servi­ces; the Novum, what was raised to his own Use: and therefore,Jan. &c. p. 237. when a man is charged for two Knights Fees, he pleads, that he had but one, de veteri Feoffamento.

We find farther, that the Tenants could only charge themselves, or those that were to answer for the Service to the King in their stead,p. 238. 239. not the Novum Feoffamentum.

Hic labor, hoc opus est. Upon this, he belabours me with Reflections, and cramping Interrogatories.

The Reflections are these. 1. That ac­cording to constant Practice,p. 76. I recite only as much of the Record, which I produce to settle my Notion, as in my own Judgment, I think fits my Purpose, and conceal the rest. 2. That I am a Plagiary of this No­tion, for that it was another Gentleman's, that I conceal that too.

To both which, I plead, not guilty. For, as I shall shew, what I left out of the Record, was no Concealment, there being nothing in it, which can make [Page 154] against me. My own Inspection of the Record, occasioned this Notion, which I borrowed from no man; not that I speak this out of Vanity and Ostentati­on, but to shew the Freedom of this Gentleman's Censure, which out-runs his Wit and his Knowledge. His Wit, for if I borrowed this of another, and was a Stranger to the Record, as he would insinuate, more than once; if there were any material part left out; how does it appear, that I was guilty of the Con­cealment? And he not knowing the Au­thor, Letter to the Earl of S. as he tells a noble Peer, could not tell what Notions, not taken out of other Authors, were my own, what Mr.Petyt's; since 'twas impossible, that I, or the Gentleman, who is to bear the burthen of them, should have told him, he being equally a Stranger to both of us.

But the main Question is, whether I, or my Instructor; did fairly, in citing no more than thus much of the Record; Rex Vicecomiti Somersete salutem,Claus. 19. H. 3. m. 6. dorso. scias quod Comites, Barones, et emnes alii de toto Regno nostro Angliae, spontaneâ vo­luntate suâ, et sine consuetudine, concesse­runt nobis efficax auxilium ad magna ne­gotia [Page 155] nostra expediendum, unde provisum est de Consilio illorum, quod habeamus de singulis feodis Militum, qu de nobis te­nent in in Capite, & de Wardis tam de novo Feoffamento, quam de veteri, duas marcas.

Now,Jani &c. p. 239. so it falls out, that I unluckily had affirmed, that when there was a Grant which reach'd to the Tenants de novo Feoffamento, the Record mention­ing that, shews us, that more than the King's immediate Tenants, were Parties to the Grant; but that other Records shew, that Tenants in Capite, granted by themselves, a Charge upon the Vetus Feoffamentum only.

But let us see whether that part I omitted, shew any thing to the contra­ry. Ad auxilium praedictum nobis facien­dum unde providerunt reddere nobis unam medietatem ad festum Sancti Mich. anno 19 & 20. providerunt etiam quòd praedi­ctum Scutagium colligatur per manus Balli­vorum suorum in singulis Comitatibus & tradatur per manus eorundem duobus Mi­litibus, quos ad hoc assignaverint in singu­lis Comitatibus, deferendum ad Scaccarium nostrum Lond. & liberandum ibidem Thes. & Camerariis nostris, & ideo tibi precipi­mus, [Page 156] quòd ad mandatum Comi­tum,Here is no more than a Certificate of their names that would not pay freely; the said Knights could not de­strain, but the Sheriff. & Baronum, & omnium aliorum qui de nobis tenent in Capite, in Ballivâ praedictâ, mo­do praedicto, sine dilatione di­stringas omnes Milites, & liberè tenentes qui de eis tenent per servitium militare, in Ballivâ tuâ ad reddendum Ballivis suis de singulis feodis & wardis, duas Marcas & praedictum auxilium nobis faciendum in terminis praedictis, toleran­dum Johanni de Aure, & Henr. de Me­riet, quos ad hoc assignavimus in Comita­tu tuo sicut praedictum est, &c.

You must understand, that two Marks being granted upon every Knights Fee, for an effectual Aid, the not going as far as ad auxilium praedictum faciendum. after the mention of the efficax Auxili­um, and what was granted, was a de­signing Omission.

But to the Questions.

Who were charged in this Writ,Against Ju [...]i Angl. &c. p. 77. two Marks for every Knight's Fee, that was holden in Capite, as well of the new Feoff­ment, as of the old, but the Tenants in Capite? To whom is the novum Feoffa­mentum affixed, but the Tenants in Ca­pite?

[Page 157] To which, I answer, That as the Charge lay upon all that was first grant­ed out in Capite, it was upon more than Tenants in Capite, because of their Alie­nations; nay, and he himself should have put the Question of more, other­wise, their Tenants were not charged: but 'twill be said, that what was in the hands of Tenants, was the Lord's own. What need then was there for the She­riff to distrain, without which the Lord could not raise it by his Bailiff?

But, what Answer has he made to the Record, in the very year in which he supposes a Charge was laid by the Te­nants in Capite, upon all their Tenants, that shews, that both the King and Lords could not charge the Lords Tenants, though to relieve the Necessities of the Tenant in Capite? Jan. &c. p. 237. What says he to the Plea, according to which, the novum Feoffamentum is allowed to be free, where the Vetus was chargeable. Where­as, he would have it, that Omnes alii de regno, were only qui de nobis tenent in Capite; How comes it to pass, that where the novum Feoffamentum is expressly nam'd to be charged,ib. p. 238. & 239. there omnes alii are particularly named; otherwise, only Te­nants in Capite?

[Page 158] And what says he to the Record, Against Mr. Petyt. p. 193. and 196. which out of marvellous Modesty, he owns him­self not to have so much Knowledge of the Practice of the Law, as to say that he un­derstood. And yet in a few pages after, forgetting himself, pretends to know that Mr.Petyt understood not the latter part of the Plea? Which he would have to be, that only two Knights Fees were in the Possession of the Prior and Convent, &c. Whereas, according to his Notion that it was not regarded in the Levy, what Fees were answerable to the King, ac­cording to the Original Grant, whether in the hands of the Tenants in Chief, or their Subfeudatories; the Payment was by this Record, to be forc'd only from those Lands, which were out of their Possession. Ideo &c. distringas omnes mi­lites & liberè tenentes qui de eis tenent per Servitium Militare, &c. then besides, if the King might distrain in the Fees of the Subfeudataries, without Parliamentary Grant,Against Mr.Petyt. p. 176. what a ridiculous thing was it, for the Prior of Coventry to plead in dis­charge of eight parts of ten, that eight parts were out of his Possession? But his Plea is, that he was not liable to so many as Tenent in Capite; but in effect, [Page 159] that indeed he had so many held under him, who paid their Proporti­ons by his hands,See the Record at large, in Mr. Petyt's Appendix, or inter Communia de Termi­no Sancti Hill. Anno 17. Ed. 3. as Collector for the King, under the Sheriff, who accounted for them, but such were not chargeable, as ha­ving any respect to Service or Tenure. Auxilia illa non fuerunt nec cen­seri possunt esse servitia, imo subsidia per Magnates et Communitatem Regni sponta­neâ merâ voluntate Regi concessa, et tam de tenentibus aliorum quam de tenentibus de Domino Rege in Capite levanda.

And this is manifestly the same, as if he had pleaded, that he had eight of the Knights Fees, de novo Feoffamento, and therefore was not chargeable for them. For, it appears, that in the 34th he was to account for twelve Marks,Vide the Record. Ad Soro­rem Regis maritandum; (this, there be­ing then charged two Marks upon eve­ry Knights Fee, was for Arrears in his hand) the very charge was, Tam de no­vo Feoffamento quam de veteri, expressly: and that, per Commune Consilium Regni, or as he pleads, per Magnates et Commu­nitatem Regni. Communia de Term. Sancti Mich. anno 34. H. 3. Quia per Commune Conci­lium regni fuit Regi concessum auxilium ad sororem, &c. 2. Marcae de singulis feodis [Page 160] militum tam de novo Feoffamento quam de veteri, &c.

But, as our Author supposes all man­ner of Charges to have been laid by the Tenants in Chief only, who were able to charge more than such, for whose Services they were answerable to the King, what thinks he of the Record, 24 Ed. 1. which says,Rot. Pat. 24 Ed. 1. n. 22. de 12. & 8. Regi con­cessa. that a twelfth and eighth were granted to the King by the Comites, Barones, Milites et alii de regno (when to be sure, more than Tenants by Knights Service gave, it being after the Doctor's marvellous year, 49 H. 3. and more are specified) as it us'd to be in the time of the Kings Progenitors; which must be beyond the Reign of H. 3. to which, at present, our Dispute is limited? Cum Comites, Barones, Mili­tes, et alii de regno nostro, in subsidium guerrae nostrae, sicut alias nobis et progeni­toribus nostris regibus Angliae, concesserunt &c.

If all these will not do, however, I have one Record, which is a Demonstra­tion, that no more than such as the Te­nants in Capite, were answerable for, according to the Vetus Feoffamentum, or original Infeodation from the King, [Page 161] were in respect of any charge, to be laid by Tenants in Chief only, accounted their Knights. Though I have a great Example before me, for long-winded Quotations, yet, I cannot cite more of the Record, Vid. Jani &c. p. 239. than is to the purpose: some­times indeed I may omit some part▪ which would coroborate my Assertion.

Cum peteremus à Praelatis Angliae, Rot. Pat. 15. H. 3. M. 3. De praelatorum Angliae. quod nobis auxilium facerent pro magnâ necessi­tate nostra de quâ eis constabat viz. Episc. Abbatibus, Abbissis, Prioribus, & Prio­rissis, qui de nobis tenent in Capite, ipsi no­bis liberaliter concesserunt auxilium tale, viz. de singulis feodis militum suorum 40▪ s. de tot feodis de quot ipsi tenentur no­bis respondere quando nobis faciunt ser­vitium militare, & nos concessimus eisdem Praelatis, quod ad praedictum auxilium no­bis faciendum habeant de singulis feodis mi­litum qui de eis tenent 40. s.

Before I enforce this Record,Jani &c▪ p. 239. I must wipe off one Reflection, as if I made a Parliament of Women, amongst others, by my note of Women granting; where­as, if they granted by their Dapifer or Magistralis serviens, 'twas the same, as by such they might be Judges in the Counties and Hundred Courts, accord­ing [Page 162] to a Charter of King Stephen; an ancient Transcript of which I have seen, whereby such Liberty was grant­ed to the Church of Saint Milburg de Wunelort, and to the Monks there; and with the same Propriety might have been to an Abbatess or Prioress, if the Society deo serviens, Carta Re­gis Ste­phani. were female.

Rex Angliae Archiepisc. Episc. Abbatibus, Comitibus,Carta Re­gis Ste­phani, de­liberat. an­no 3o. Justiciariis, Baronibus, Vice-comitibus, Ministris, & omnibus fideli­bus suis Francis & Anglis totius Angliae, Salutem. Sciatis quum pro dei amore ani­mabus patrum & parentum meorum, & special. Regis Henr. Domini & Avun­culi mei, & pro salute meâ, & uxoris, & fratrum, & filiorum meorum, & pro sta­tu, & incolumitate regni mei, dedi & concessi in perpetuam elemosinam deo, & Ecclesie Sancte Milburge de Wunleloch, & Monachis, de caritate meâ, deo servienti­bus, hanc subscriptam libertatem; scilicet, quod Ecclesia ipsa pro se, & pro omnibus hominibus suis Sancte Milburge, mittet Da­piferum suum, vel Magistralem servientem suum ad nominatos Comitat. & Hundred. mea, qui ibi audiat precepta mea, & cum aliis juditia mea indicet, ita quod nemo hominum suorum super hoc illuc eat neque [Page 163] ibi respondeat nisi specialiter de aliquo pla­cito sic appellat. quod ad Coronam meam pertineat, de nullis verò aliis Placitis illuc eat, vel ibi respondeat, nisi prior Ecclesie prius in Curiâ suâ se inde de recto defece­rit, Et hanc praedictam libertatem & om­nium rerum quietantiam eis concedo, ex­ceptis placitis superius annotatis, et ut haec libertatis meae donatio Ecclesie illi in perpe­tuum integrum conservetur presentis sigilli mei impressione ipsam confirmo, et subscrip­torum attestatione corroboro, et praeter haec omnia supradicta concedo eis quod habeant unam feriam apud Wuneloch ad Festum Sancti Johannis Baptiste, per tres dies du­rand. a vigiliâ Sancti Johannis singulis an­nis: et volo, et firmiter praecipio, quod om­nes homines ad feriam illam venientes, in­eundum et redeundum, et ibi manendum, ip­si et omnia sua meam firmam pacem habe­ant, ne super hoc in aliquo injustè distur­bentur super 10. l. forisfact. Testibus R. Episcopo Heref. et R. Episcopo Cestr. et S. Episcopo Wircestr. et R. Com. Legr. et S. Com. Herh. et W. de Alb. pinc. et Mil. Bloe et R. de Ferr. et Philippo de Belmeis apud Brugg. in reditu obsidionis Salop. Anno Dominice incarnationis MCXXXIX, regni [...]erò mei tertio.

[Page 164] Having thus cleared my self, I may proceed upon the Record of the 15th of Hen. 3. the Grant there, de singulis feodis militum suorum, is as large as that which he triumphs so much in; and yet the Milites sui, were only, tot de quot ipsi tenentur nobis respondere, quando nobis fa­ciunt servitium militare. Nay, the Di­stress granted by the King, is, de singulis feodis Militum qui de eis tenent, and yet the Milites qui de eis tenent, could not possibly be more than such as were lia­ble to the King's Duty;Nota. for otherwise, the Lords were to have more for their own use, than the King for his; be­cause, it was 40. s. upon every Knights Fee. And, if the Prior of Coventry was to answer the King only for two Knights Fees, being tot de quot &c. and yet had 40. s. upon every one of the ten that held under him, he would have had more than the King; when besides, it was to be only ad praedictum auxilium, for raising the Aid for the King, which was from so many as he was answerable for, when he did his Service, and that wa [...] less than the Subsidy, granted per Mag­nates et Communitatem. Admit that th [...] last was not properly novum Feoffamen­tum, [Page 165] yet 'tis the Thing, not the Word, I contend for; and such were not charge­able by Tenants in Capite.

His second Interrogatory,Jan. &c. p. 234. & 235. who ga­ther'd this Tax? was prevented in my former Essay, and fully answered now. And, by the next, it may be he will blot out his third, Who were to be di­strain'd by Vertue of this Writ? And, per­haps he will not think it evident beyond Contradiction, Against Jan. &c. p. 78. from the Writ to the Sheriff of Sussex, That the Tenants in Capite, were, Omnes alii de Regno, any more, than that Fideles after Milites, were still Milites, because, he fancies, that Mat­thew Paris contradicts the Record, and is of better Authority.

How idle is his Conjecture upon the Plea of the Prior of Coventry, That he was chargeable for no more Knights Fees, than were his Possession? Where­as, he was to answer, De tot de qu [...]t te­nebatur Regi respondere quando, &c. when he did his Service; which was no more than two Knights Fees, though he had ten under him. But the two, though held by others, were chargeable by him without the Consent of his Te­nants.

[Page 166] If a man holding of the King in Ca­pite, by the Service of two Knights ali­en'd one, or two Knights Fees, with Licence, without particular Exemption from the King's Duty, in this Case, the Burden went along with the Land; but, if he had, according to Licence, made sufficient Provision for the King's Ser­vice, the rest he might have rais'd for his own use: and though the Service continued to be reserved to the King, yet the Alienee before the Statute of Quia emptores terrarum, which was in­troductory of a new Law, was Tenant to the immediate Feoff [...]r, this Tenant had no Right to be at the King's Coun­cil of Tenants, and yet was to answer Escuage, and all manner of Charges, as assest by the Tenants in Chief, who were the only Council for the purposes of such Tenure.

—Si quid novisti rectius istis.
Candidus imp [...]rti, si non, his utere mecum.
If our wise Author greater Truths have taught.
Shew me wherein, or take what I have brought.

[Page 167] To go on with Great and General Councils, 21 H. 3. we find at a Great Council, Comites, Barones, Milites, & liberi ho­mines. Whereas, 'tis said, on the other side, that none under the Degree of Knights came.

At another,Jani &c. p. 244. Barones, Proceres, & Magnates, ac Nobiles Portuum Maris ha­bitatores, nec non Clerus, & Populus uni­versus.

'Tis a ridiculous Answer to this, that all these are put together, only to make an Impression upon the Pope, as if the Sense of the whole Nations Represen­tative, whatever it were, were not as much to move a Foreign Prince, as the whole Nations.45 Hen. 3.

Three are chosen out of every Coun­ty, to represent the Body of the County.

An Agreement was made between King and People,48. H 3. Jan. &c. p. 246. A Domino Rege, & Domino Ed. filio suo, Prelatis & Proce­ribus omnibus, et communitate regni An­gliae. To all this,p. 265. may be added, that long before, where the ingenuitas regni were consulted.

Here are Instances enough of greater Councils, than such as King John's Char­ter settles, as I have observed, those [Page 168] there were made a Council only for the matters of their Feud; they met ordi­narily, three times a Year, and in that were ordinarily a Court of Justice: and he betrays his Ignorance, not to say more, who affi [...]ms the contrary.

'Tis no Objection to this, that some­times we find Regnum Angliae at it; for, still 'twas ad Curiam pro more. Not that the Kingdom used to come of Course, but then came to that Court which was ordinary, or of Course.

That the Kings great Officers and Ministers of Justice were there, I have always yielded; and that 'twas no Grie­vance to the Tenants, to have Justice administred without them at other times: and therefore it makes not against my Sense, that these often sat without the Tenants. Yet, their sitting was not at stated times, and therefore they were not Curia pro more. Either way, there was a great Council distinct from the less.

(1.) As to the persons composing the one and the other.

The Great Council had the whole Na­tion of Propriet [...]rs, or of Representa­tives, of their Choice; in the other at the [Page 169] most, the King had only his Tenants in Chief, and Officers and Ministers of Justice.

(2.) As to the matters treated of; the one treated of matters of extraordi­nary Justice; the other, but ordinary.

(3.) For time, the great Council was summon'd as often as the State of the Kingdom required it; the other, as a Court of Tenants and Officers, had times ascertain'd: not but that as occasion might offer it self, they might be sum­mon'd according to King John's Char­ter. Nay, may be after that, they ne­ver met, but upon Summons; the lesser Court of Officers and Ministers of Ju­stice, met oftner than either, but not of Course.

And, thus have I answered his Argu­ments from King John's Charter, by which, he labours to prove, That Te­nants in Chief only, composed the Great Council, or were all the Nobility of Eng­land; and have given a clear Account of that unintelligible piece, as he is pleased to represent it, leaving out what I offer'd upon the Question of the Bi­shops Voting in Capital Cases, since he had no other way of answering it, than [Page 171] by calling it impertinent Rhapsody. Tho if 'tis no better to be answer'd, 'tis not Rhapsody and fancyful Stuff: and, if the first ground from our Laws to dispute their Right, mentions it in relation to the Curia Regis, 'twas not surely imper­tinent to consider their Right; the Curia from whence 'twas excluded, being so directly to my purpose.

There are other things incidentally coming in, which I divide not into Heads, being they serve but to explain those which I have rais'd. To which, may be added, That our Author, by the Exercise of his Faculty of Story-telling, and setting forth the Power of the great rebellious Barons,Against Mr. Petyt. p. 210. has given us to under­stand, That the Commons were not first brought into the Great Councils, in the 49 of Hen. 3. unless we believe, that the great men would co [...]sent to ballance and weaken their own Power.

I may put the Question in his own words, upon another Occasion, Can it be reasonably imagined, Against Mr. Petyt. p. 234. & 235. that they should give way to, or establish such Laws, as would undoe and destroy their own Settle­ment in Power? Wherefore, the Argu­ment is strong, that till then the Com­mons [Page 172] came in their own Person; but that then the Great men, having the Power in their hands, clip'd their Wings. But let us see his weighty Ar­guments against my sense of this Charter.

In Answer to my third Head, he puts me off with the Fallibility of a Parlia­liament; but, if moral Certainty, with­out Infallibility, will not satisfie him in matters of the greatest Concern, we may know what he would be at. But forsooth, this was not a full Court of Tenants, because, as was usual, only some few attested the Fact.

In Opposition to my Fifth,p. 10. & 11. he tells us, that even voluntary Gifts to the Crown, are called auxilia; nay, even such as were more than Advances upon Services. But, what proof is there, that such were here meant, when not only Services, because of Tenure, with the Advances upon them, but what came from more than Tenants, are called Auxilia too.

As general Objections against my Sense.

(1.) If Tenants in Capite were a great Council of the Kingdom,p. 12. for Aids and Escuage only, which is hardly reconcileable [Page 172] to Sense? (Why so, good Dr.? May there not be a great Council, especially a Com­mon-Council, to a particular Purpose? Nay, you your self confine it's Power to the raising of Taxes. Why was the Cause of Summons to be declared? Because of the occasion requiring greater or less Aid.

(2.) Lastly, If all Free-men, or, as our Author saith in other places, all Proprietors were Members of the Great and General Council of the Nation?p. 13. 'Tis strange there should not have been the same Care taken, that they might be summoned as well as the Tenants in Capite; Certainly they came not to them by instinct; nor is it scarce pro­bable, that they would leave their Ploughs and Country Business, to travel from one remote part of England to another, to these great Councils, which seldome continued above three or four days, if they had had Right so to do.

This is as trifling as the rest, for, if the Common Law took care for their Coming, and for their general Summons, nor had their Right been denied them, there was no need of special Provision by that Charter.

Upon my seventh Head of the Di­stinction, between the Great Council, [Page 173] and the Curia pro more, he attacks me ve­ry vigorously; and having before tax'd me with new modelling the Government, wild,p. 1. extravagant, and confus'd Notions, unintelligible Vagaries,p. 47. impertinent Rhap­sodies,p. 32. 41. 53. 62. & 63. perverse Interpretations, Ignorance, and Confidence; to say no more, monstrous abusing of History, cheating and abusing my Readers, and wresting Records and Histo­ries, with a long Et caetera: out comes this gentle Rebuke,

And indeed as he deals with Sir Henry Spelman's Glossary,p. 96. in saying, the second part was not his own; so doth he shuffle off all Records and Histories, which are directly against him, by saying, the Curia or Great Councils there mention'd, were but an or­dinary Curia or Council, and such as in his own Judgment, contain any thing that makes for him: The Councils there spoken of, are Great and General Councils, to be sure.

'Tis, doubtless, an hainous thing, to call that a Great or General Council, which is so in my own Judgment: But, if I prove, and that out of himself too, that there came more to the King's Great Councils, than his Tenants in Chief, and Officers, such as compos'd the [Page 175] Curia, held pro more thrice a year; sure­ly, it lies upon him to shew that at any one Council, where more than Tenants were charged, Tenants only were pre­sent. And I affirm, that he neither has nor can produce one Authority, which upon Examination, can signifie any thing.

And to retort his last Charge, as he deals with Sir Henry Spelman, in put­ting upon him his own, or his Friends Sense, So he doth shuffle over Records, which are directly against him, and sup­plants them by History seemingly for him: And if the last contain any thing which in his own Judgment makes for him, the Council there spoken of, is a Great and General Council of Tenants in Chief only, to be sure, though the Record mention more.

Our Author says of the Curia, which I contend to have been pro more, or or­dinary, If he can make the Court holden coram Rege & Consilio, before the King and Councel, which he hath made his In­stance for his ordinary Court, and be the same with the Common Council of the Kingdom establish'd by that Charter, mean­ing King John's, he gains the point; but, [Page 176] if it cannot be done, he may very well blush at his own Confidence, to say no more.

Truely, I should rather blush at the want of Sense in that Paragraph, if it were mine; for, I cannot well answer for making the Court, and be the same. But, since he has informed me where the point lies, I can easily gain it, by proving that the Court holden coram Rege & Consilio, became the Court of which our Dispute is; as it had the same Power, whether held by the same persons, or at the same times, is not material, so that it be the Kings Curia, or Magnum Concilium, as the Court held pro more was.

In Order to the clearing this, he may please to understand that the King's Court had the only Cognizance of the Kings Grants or Charters; agreeable to which,Bracton. lib. 2. cap. 16. p. 34. Bracton says, De chartis verò re­giis & factis regum non debent nec possunt justiciarii, nec privatae personae disputare, nec etiam si in illâ Dubitatio oriatur pos­sunt eam interpretari, et in dubiis, et ob­scuris, vel si aliqua dictio duos contineat intellectus, Domini Regis erit expectanda interpretatio, et voluntas; cum ejus sit in­terpretari cujus est concedere, et etiam si [Page 176] omnino sit falsa propter rasuram, vel quia fortè signum appositum est adulterinum me­lius et tutius est quod coram ipso Rege procedatur ad judicium. Curia co­ram Rege & Cons. ‘But, of the King's Charters, and of the Deeds of Kings, the Justices, or private Persons neither ought, nor can dispute, nor if any doubt arises therein, can they interpret it; and in doubtful and ob­scure things; or, if any word contain two meanings, the King's Interpreta­tion and Will is to be expected, since it belongs to him to interpret, who made the Grant; and also if it be wholly false, by reason of Rasure, or, because perhaps, a counterfeit Seal is put to it, 'tis best and safest, that Judgment should be proceeded to, be­fore the King himself.’

Here was a [...] Court for these matters, held before the King, that is, before him and his Council. And thus, 18 Ed. 1. The Bishop of Carlisle produ­ces the Charter of Richard the First,Ryley pla­cita Parl. f. 20. about the Advowson of the Church of Burgh; this was before Thomas de Wey­land, and his Companions, Justices of the King's Bench; but, because they did not do them Right, he Petitions [Page 177] that the King would do him Remedy and Grace upon it; because, none but Kings themselves ought to judge of Kings Charters.

This is received before the King and his Counsel in Parliament: and because there was need of a Certificate to be made in the Case, 'tis referred to the next Parliament, that is, when it relates to any Judgment to be given, Coun­sel then to sit. But, the Business, as I find many of the like kind, upon the Parliament Rolls, was properly brought before the Kings Counsel in Parliament, who,Jani An­glorum fa­cies nova. p. 190. as I before observed, succeeded into the places of the Tenants in the Curia; and indeed, I see not what other Account can be given of the Lords Ju­risdiction. As this Counsel acted in Parliament with the same Power which the Tenants had exercised before, so we find them sometimes acting like the Tenants in the Curia, in the Intervals of Parliament, as in the 33. of Ed. 1. after the Parliament was dissolved, and all sent home;Ryley, f. 241. f. 256. but the Bishops, Earls, and Barons, Justices, and others of the Kings Counsel. Several things are trans­acted coram toto Consilio, and Judgments given secundum consuetudinem Curiae. In­deed [Page 178] we often find, that, when Matters of Publick Concern, or which, as they say, concern'd the Treaty, came before them, they never undertook to deter­mine upon them, but left them to the next Parliament.

But there is yet a farther Evidence, in that, as the same Matters were hand­led in the one and the other, sometimes in conjunction with the great Council, sometimes separate from it; so 'twas in the same manner. And thus Thomas de Berkley, who was a Lord in the 4th of Edw. 3. was Tryed in Parliament by a Common Jur [...],Rot. Parl. 4 Edw. 3. De bono & malo ponit se super Patriam; upon which, a Jury of Knights was returned.

And this, to be sure, was according to the Common-Law, the way of Try­al in the ordinary Curia, which, doubt­less,Glanvil, lib. 2. c. 7. was that Assize mentioned by Glan­vil; Clementiâ Principis de Concilio Pro­cerum populis indultum. Where there al­wayes was a Jury of twelve at the least.

Farther, Before the Itinerant Judges were setled, and before the Courts fixed at Westminster, Pleas must needs ordinarily have been coram ipso Rege, [Page 179] he being personally present. And that the Tenants in Chief [...], appears by the Constitution of Clarendon, which requires it in affirmance of the Common Law. Archiepiscopi, Episcopi, & universi personae regni, qui de Rege te­nent in Capite, debent interesse Judiciis Curiae Regis, &c.

Our Adventurer in Antiquities, who treats the Author of Jani Anglorum Fa­cies nova with much contempt, has this passage; p. 26. Notwithstanding he sayes it is agreed on all hands, the ordinary Curia was held thrice a year, I never heard of any one of his opinion but himself; He would make the great Court held at these times he mentions, and the great Confluence of Nobility then to the Kings Court, to be the King's ordinary Court, for this Dispatch of ordinary Business, and Con­troversies between the King and his Sub­jects, or between man and man. I will not deny, but often Petitions might be put up, and Complaints made to them about private matters, such as alwayes have been to the House of Lords, and many more of antient times, than have been for a Centu­ry or two of years. And that they did de­termine and pass Judgment in those Cases. [Page 180] But, that they were therefore the King's Ordinary Court, I think no body will say, but such as never read antient History or Lawyers, or, at least, never intend to un­derstand them.

Truly, he has an excellent Faculty to bring men's Arguments into the shape of his own; and then 'tis easie, even for him, to expose them. He would have it, that, according to my Notion, the House of Lords is the King's ordi­nary Court, because of determining in matters of ordinary Justice; whereas, I make the Notion of Ordinary, not to consist in that onely, unless it be at ordinary, or stated times. Nor do I say that the House of Lords is an Ordinary Court, but succeeded into the Jurisdi­ction of the ordinary.

But he does well to serve my Hypo­thesis, in making the Comparison be­tween these two Courts. The one of which, as I before observed, succeeded to, and gives an Idea of the other, though it agree not in every particular. And, as the House of Lords, divided from the Commons, never could make Laws; so neither could the ordinary Curia, unless when joyned to the great­er: though, both the House of Lords, [Page 181] and the Curia before, were the Supreme Courts of Judicature. And, if the Cu­ria was held thrice a year, and confin'd to Matters of ordinary Justice, which, I think, I have proved, in shewing that the Legislative Power was vested in more than the King, and his Tenants and Officers; then I find not that our Champion so much as blunders upon any thing against what I say.

But, to prove more particularly my Assertion, which he would have to be my singular Opinion;

Knighton, to instance in an Author of the best eredit, tells us of King Wil­liam the First,Knighton, f. 2354. In praecipuis Festis profusè convivabat, natale Domini apud Glover­niam, Pasche apud Wintoniam, Penteco­sten apud Westmonasterium quando in An­glia foret tenere consuevit. ‘On the chief Feasts, he used to make great Enter­tainments, when he was in England, He used to keep his Christmas at Glo­cester, Easter at Winchester, Whit­sontide at Westminster.’ Besides, at these times, when the height of the Feasting was over, Causes us'd to be heard,Ea [...]merus, f. 37. as Eadmerus, who might well know, informs us. Peractis igitur festi­vioribus [Page 182] diebus diversorum negotiorum Causae in medium duci ex more caeperunt. ‘When therefore the most Festival dayes were over, they began to treat of divers Causes, as was the usual man­ner.’

To these Feasts there us'd to come onely Tenants, and the King's great Officers, which I need not go to prove, since our Author would have Tenants onely▪ even exclusive of Officers that were not T [...]nants, to have come to the greatest Councils.

So that the Court being held thrice a year, the Members of it, the same which I have shewn, and their Business ordinary Tryals, here is that Ordinary Court which I have contended for. And thus, having given some reason for my confidence, p. 49. I may expect to be be­lieved.

This might serve upon this Head, but, I thank him, he generally gives me occasion, by reason of his Exceptions, to confirm the Rules which I take.

He fancies he has a great Advantage over me,Jan. &c. p. 191. by my saying, that the Admi­nistration of Justice, (which I mean of the common or ordinary Administra­tion,) [Page 183] was taken from the ordinary Cu­ria, and fix'd at the Courts in Westminster Hall. Communia placita non sequantur Curiam nostram. And not observing that there was the same Clause in King John's Charter, I had plac'd it some three years too late, according to him, though, in truth,Glanvil, lib. 2. c. 6. there were Justices in Banco sedentes, which seems to be meant of a fix'd place, in the time of H. 2. And so it must have been, since King John's Charter was not introductory of any new Law.

But I understand not the force of his Argument, that if this Council sum­moned, p. 46: & 47. as is there, were the Curia Regis Ordinaria, and went off by reason of this Clause, it certainly went off before it be­gan. Unless he acknowledge, that the Curia there provided for, be it ordina­ry or extraordinary, was not in Being before: And truly, I shall not quarrel with him for this. But I appeal to any man, that will consider without Byass, Whether 'tis manifestly prov'd in the Answer, ib. that, after the granting of this Charter by King John, there were many general and great Councils or Colloquiums summon'd by Edict, according to the Form, which he would have to be there prescri­bed?

[Page 184] However, it seems, by him, that there was no such Form for general and great Councils before.

But, how well do's he understand what I say? I make but part of the Power of the Curia to have been taken away by Magna Charta, (or, be it by the Law there affirmed) but that of granting Aid and Escuage, which onely is mention­ed in that part of the Charter which re­lates to the Curia, whether ordinary or extraordinary, I say, continued to the 34. th of Ed. 1. at least,Jan. &c. p. 192. of Right it should, unless swallow'd up in Parliaments, But, whenever the Court which granted such Aid as the Charter means, ceas'd to be held, pro more, thrice a year, it ceas'd to be an ordinary Curia. This might have been either by the pleasure of the King, who needed not to summon his Tenants, but when he pleased: Or else it might have been in the 49th of Hen­ry the Third,Against Mr. Petyt, p. 110. when, our Author says, there was a new Government.

I agree with him, that the King's or­dinary Court continued in the several Kings Reigns, Against Ian. &c. p. 53. in all its branches and divisions, and derivative Jurisdictions; and yet not the same, any more than a [Page 185] man is the same with his Executor that represents his Person, and is the same in Law.

The House of Lords had the Jurisdi­ction of the ordinary Curia, most pro­perly, being as he himself yields, 'twas ex ta [...]tâ multitudine of men, holding in Capite, that some had the special Writs, which made them of the upper House; and coming in the Degree and Circum­stances of Tenants in Chief, they had the same Power. The Justices and Officers that were not Tenants in Chief, must needs have been but Assistants in the Ordinary Curia, as they have ever been in the House of Lords: and, the inferiour Tenants, without doubt, were to serve on Juries, as the Knights were Jurors in Berklay's Case before the House of Lords; nor do I find, that these inferiour Tenants had any other Power or Interest, except that of giving Taxes, which, is the only Power which our Author seems to yield to the greatest Council.

The Power of the Justices Itenerant, or of them that were setled at Westmin­ster-hall, was derived from the King and his Curia, either ordinary, or when it [Page 186] cas'd to be ordinary; yet, in effect, con­tinued the same Court. And thus, as late as the time of Edward the Second, you shall find the Curia then, not only to have Writs of Error brought thither, or to impower the Barons of the Ex­chequer, who were properly under it, to determine matters concerning the King's Revenue, or concerning Tithes, but, for Causes of all Natures, to be tryed before any Judges, they awarded the Writs, and appointed the Judges, sometimes mandetur Justiciariis de utro­que Banco. Rot. Parl. 8 Ed. 2. r. 209.

These Benches were very anciently fix'd at Westminster- [...]all, but still they were so dependant upon the King's more immediate Curia, that often they were only to hear the Cause, and cer­tifie to the higher Court, what ap­pear'd to them, as was usually done by those who were assign'd to hear the Pe­titions delivered in Parliament. Some­times, Judges were impowered, Ad au­diendum & terminandum matters tam ad [...] Regis, quam aliorum. But, cer­tain it is, that where an Estate was de­riv'd from the King's Grant, or the King's Right and Title might be affe­cted [Page 187] by any matter in Question, 'twas usual for the Curia to order that Judg­ment should be stay'd, till there was a new Power had, after Certificate how the matter stood.

Thomas de Multon and Anthony de Lucy, Rot. Parl. 9 Ed. 2. n. 65. pray, that there being need of inspecting the Rolls of Chancery, in order to the clearing their Title to certain Lands, there might be a view of the Records and Remembrances.

Part of the Answer is as follows.

Mittatur ista Petitio, sub pede sigilli Willielmo Inge, & sociis suis, Justicia­ [...]iis Regis ad placita Regis coram Rege te­ [...]enda assignatis, unà cum processu super [...]egotio in dictâ Peitione contento coram Rogero de Brabanzon, & sociis suis pri­ [...]s habito, quem quidem processum idem Ro­gerus per breve Regis consilio Regis apud Lincolnum liberavit, & mandetur eis per [...]reve quod examinato diligenter toto nego­ [...]io praedicto, & vocatis servientibus Regis, & aliis qui fuerint evocandi in negotio illo [...]rocedant prout de Jure fuerit faciendum.

Ita tamen quod Rex super Recordo & processu dicti negotii certioretur antequam super hoc ad redditionem judicii procedatur, & serutendum insuper in Cancellaria, & [Page 188] in Scaccario si necesse fuerit rationes & evidentiae siquae pro jure Regis in hac parte poterint inveniri.Si necesse s [...]erit.

It seems, the Justices of the Common Pleas, Brabanzon and his Fellows, not being particularly commission'd, could not proceed to Judgment, for want of Power to look into the Rolls of Chan­cery; nor could the Judges of the King's Bench, though they had Power of In­spection then given them, proceed with effect, till they had certified the King, in his more immediate Curia.

The Heirs of Bartholomew Redman, [...]t. Par [...]. 8 Ed. 2. n. 114. petition, that whereas they held Lands of the Abbot of St. Bennet, by certain Services, which Land, they had let to the Queen, she obliging her self to dis­charge the Services, but had not, they might have Grace and Remedy. This was to be examined in Chancery, Responsa [...] per Co [...] ­ci. i [...]m. but the Judgment was referred to the Curia Reseratur Regi, & Rex saciet justitiam. To this Curia, all manner of Justices were accountable for their Actions.

So the Judges of Assize in Cornwal [...] being complained against for acting ir­regularly,Rot. Parl, 8 Ed. 2. two are appointed to exa­mine the matter, and to certifie the [Page 189] Council, who had reserved the Judg­ment to themselves. In short, the su­pream Judicature over all Causes, was in this Curia, the House of Lords, the very same which the Court of Tenants in Chief, with such others as us'd to come pro more, had before; and yet there was a common or ordinary Admi­nistration in the Judges.

But, our Author, who is, by Fits, the kindest hearted man in the World, proves my Notion to my hand, out of Britton, Against Jan. &c. p. 28. & 29. Nous voluns quae nostre Juris­diction soit sur touts jurisdictions en nostre Royalme; which, where it relates to Judicature, must be meant of the King in his Curia, or House of Lords: and there, as Judge, the King has Power in all Felonies, Trespasses, Contracts, and in all other Actions, personal or real. But, because it would be too great a Trou­ble for the King in that Court, to hear and determine in all plaints, &c. Therefore,

En primes en droit, de nous mesm & de nostre Court avouns issint ordyne, que pur ceo que nous ne sufficens my en nostre pro­prie person à oyer & terminer touts quereles del people avant dit, avouns party nostre charge ex plusieurs parties sicome icy est or­dyne.

[Page 190] Can any thing be more plain, than that all inferiour Courts were deriv'd out of this Curia, for the sake of which, as well as the Kings own, the Charge was divided?

CHAP. VIII.That ordinary Free-holders were nobles be­fore the 49. of Hen. 3. and came to the Great Councils as such, in their own Persons.

HAving vindicated from his Cavils, my Notion of the Curia Regis, and the present Seat of it's Power, I shall address my self, to shew that I have not cheated my Readers in the proofs I have brought of the General Councils of the Nation, much more large than the ordinary Curia Regis.

I thought I had shewn in my first Essay in this kind, by very clear proofs, that the Liberè Tenentes of the Kingdom, Free-holders, came to the Great Councils from the Reign of William the First, in­clusively, to the 48. or 49. of Hen. 3. [Page 191] without any setled Exclusion; which is enough, if it reach'd to the greatest part of them, with which the Ballance was. If I prove that, as such, to wit merely because of Property, be it more or less, they were noble, the proof will be yet stronger, because, all Authors and Records agree, that no Nobles were excluded till then. Mr. Petyt has very judiciously asserted the Right of Com­moners all along before the Conquest, which our Opponent, like a right So­phister, would have to be from the Cre­ation; whereas, that 'twas so immemo­rially, so as there are no Foot-steps to the contrary, is as much in the eye of Law, as if from his fantastical Epocha: so in Domesday-book, Lands are said to have been semper in Ecclesiâ, or in Mo­nasterio.

To take in the Justification both of Mr. Petyt and my self, I shall prove, that all the Free-holders, which were in a true Sense, universi de regno, were No­bles. That these were the whole King­dom, appears by one of the Statutes, re­quiring the entring into such Sodality.

De omnibus Villis totius regni sub deci­mali fidejussione debebant esse universi.Leges San­cti Ed. cap. 19.

[Page 192] The whole People of all the Vills of the Kingdom, ought to be under or else, within, Franckpledges.

It appears by another Law, that those who were not Free-holders, were under the Pledge of another. Habeat omnis Dominus familiam suam in plegio suo. ‘Let every Master of a Family have his Family within his Pledge:’ And eve­ry Master of a Family must be recipro­cal with a Free-pledge or Free-holder: for him who had not wherewith to maintain his Family, either no body would undertake for, and so he was cast out to be imprison'd, and no mem­ber of the Commonwealth, or else was under the Wing of another, having not wherewith otherwise to subsist. Agreea­bly to this,Spelman's Glos. tit. Letae. Sir H. S. calls these free pledg­es Liberiores Villae seu designatae stationis.

These Free-holders had an inferiour Court of Justice by themselves, from whence, Appeals lay upwards to the Hundreds, from them to the Counties, from them to the Curia Regis; and the Propositus or Headborough, was Alder­mannus.

Leges Sancti Ed. de centum & [...]ribor­gis Spelm. Glos. tit. Fribur­gos. Isti (speaking of the Decanus decem­vir, or caput de decem) inter Villas, & [Page 193] Vicinos causas tractabant, & secundum fo­risfacturas emendationes capiebant, & concordationes faciebant, (viz.) de pascuis, pratis, messibus, & de litigationibus inter vieinos, & innumerabilibus hujusmodi de­certationibus, quae humanam fragilitatem infestant, & eam incessanter oppugnant. Cum autem majores causae erumpebant refe­rebantur ad superiores eorum Justiciarios; quos supradicti sapientes super eos constitue­rant, Viz. They that made the Law of Frank­pledge. scilicet super decem Decanos, quos possumus dicere centuriones, vel centumvi­ros, eo quod semper centum Friborgos judi­cabant. ‘They treated of Causes in the Vills, and amongst their Neigh­bours they took Satisfaction according to the Forfeitures, and made Agree­ment between the Parties, (to wit) about Pastures, Meadows, Crops, and quarrels amongst Neighbours, and innumerable Contests of this kind, which infest humane Frailty, and continually assault it. But, when greater Causes happen'd, they were referred to Justices above them, which the aforesaid Wisemen plac'd over them, to wit over the Heads of ten Tythings, whom we may call Centu­ries or Centumvirs, because they al­ways [Page 194] judged an Hundred Frank­pledges.’

These Heads of the Tithings, who were Judges in the Vills, were Alder­manni, chose by the major part of eve­ry Tything. From this it follows, that if the Headborough was an Alderman, of the choice of the Free-holders, then the right of Free-holders to dispose of Property, was sufficiently maintained in having their Aldermanni at the Great Councils.

As at that of King Ina, Leges Inae. where the Laws were made exhortatione & doctri­nâ of some great men particularly na­med, & omnium Aldermannorum meorum.

But indeed, there were besides these, Seniores sapientes, which, I take it, will reach to all the Free-pledges, and a great Assembly of the Servants of God; under which Expressions also, they might have come as well as the Clergy.Glos. p. 31. Omnis homo qui se tenu­erit pro li­bero sit in Plegio. Leges Willielmi 1. Est quaedam summa & maxima securitas per qua [...] omnes statu firmissimo sustinentur, ut unusquisque stabiliet se sub fi [...]jussi [...] ­nis securitate, Leges Sancti Ed. de Friborgis. Yet our Author has shut out all Clerks and Knights, supposing them all along to have been no part of the Nation divi­ded into Decuries or Tythings.

[Page 195] But, the main point yet unprov'd, is, That every Dominus Familiae, or Free­holder, was a Thayn; and this I will prove by the greatest Authority, that of Statute Law. Et habeat omnis Domi­nus familiam suam in plegio suo, & si ac­cusetur in aliquo respondeat in Hundredo, ubi compellabitur sicut recta Lex sit. Leges C [...] ­nuti. c. 52. Quod si a [...]cusetur, & fugiat, reddat Dominus ejus Regi Weram, i. precium nativitatis ho­minis illius. Et si Dominus accusetur quod ejus Consilio fugerit adlegiet se cum quinque Thanis, id est, Nobilibus, & idem sit sextus; si purgatio frangat ei, reddat ei Weram suam, & qui fugerit extra legem habeatur. ‘And let every Master have his Family in his Pledge, and if he be accused in any thing, let him that is of the Family, answer in the Hun­dred where he shall be try'd accord­ing to Law. But if he be accus'd and fly for it, let his Master pay the King his Were, that is, the price of his Head, or of his Birth. And if the Master be accus'd, that he fled with his Counsel or Consent, let him wage his Law with five Thains, that is, Nobles, and let himself be the sixth. If he cannot acquit himself, let him [Page 196] pay the King the price of his Head; and let the Party that fled be out­law'd.’

Here the Master of the Family was joyned with five Thayns, and he made the sixth; and this the learn'd Antiqua­ry, Lamb. Leges E­the [...]redi. cap. 1. Mr. Lambart, renders, Ascitis sibi in­genuis quinque, taking to him five Free­men; for what he calls ingenuus, Bromton calls liber homo. Ingenuus quisque fidejus­sores, &c. fidissimos adhibeto. Vt omnis liber homo habeat credibile plegium.

Let every Free-holder have a credible pledge, (this must be confin'd to Domi­nus familiae) unless it be of such as cannot be Pledges themselves, but under Free­pledges, their Masters.

And this is farther evident, in that it an­swers to the Head-borough's purging him­self,Quinque Thanis, i. e. Nobilibus. Leg. Canut. and his Tithing with five Friborgi, or Frank-pledges se duodecimo existente, that is, Duodecimâmanu with the 12th hand, as is required by St. Edward's Law, de Fri­borgis, where no other Nobility is exact­ed, than what every Free-pledge had.

The ancient Laws give farther Proof; in that Satrapas, a Peer or Noble, and Paganus, a Chorle, or Villain, as we find Chorle render'd in an ancient Manu­script, [Page 197] cited by Mr. Selden, Vid. Jan. p. 32. in his Ti­tles of Honour, took in all the Orders of men.

Idem juris esto per omnes hominum or­dines, Leges Alu­redi de proditione domino­rum. sive Satrapae, sive Pagani fuerint. So in the Laws of William 1. whereas, 'tis supposed, that the Thayni, or Barons since answering to them, were denomi­nated from holding of the King,So Domes­day. Bron [...] ­ton Leges Canuti, a­pud Lamb. de. we find Thanus Regis, and Mediocris Thay­nus, or inferiour, sive infamae conditionis, distinct. And 'tis to be observ'd, that this took in all that paid the Hereot, which was then a payment relating to the Army; so that this, to be sure, reach'd to all that held of any by Knights Service: but, it appears by St. Edward's Laws, that it reach'd to all that bore Arms.De Here­tochiis. In quolibet comitatu semper fuit unus Hereteoch, per electionem electus, ad conducendum exercitum Comi­tatûs sui, &c. Et qui in bello ante Domi­num suum ceciderit, sit hoc in Terrâ, sit alibi, sint ei relevationes condonatae & ha­beant Haeredes ejus pecuniam, & terram ejus sine aliquâ diminutione, & rectè divi­dant inter se.

But, it will be said, whatever was the Law before William's time, it was [Page 198] not so after;Leges H. 1. cap. 29. Qui debent esse judic. 7. Rs. but, for this I will one a Law express.

Whereas the Thayns are called Nobles, in the Laws by me cited, and as all Au­thors agree, have generally since been called Barons, (not but that in William the First's time, Terra Tai­norum Re­gis. they retain'd their old names, as appears by Domesday book,) we find in this Law, that they who had Free-lands in any County, and accord­ing to the known Law, were, and still continue Judges in the County Court, were Barons.

Regis Judices Barones Comitatus qui liberas in eis terras habent, Leges Hen. 1. cap. per quos debe [...]t causae singulorum alternâ prosecutione tra­ctari, Villani verô vel Cocsetti, vel Per­dingi, vel qui sunt viles, vel inopes perso­nae, non sunt inter Legum Judires nume­randi, unde nec in Hundredo, vel comi­tatu pecuniam suam, vel dominorum s [...]orum forisfaciunt. ‘The King's Judges are the Barons of the County, they who have free Lands there, who are to try one anothers Causes. But Villains or Beggars, or they who are base and in­digent persons, are not to be reck­on'd amonst the Judges of the Laws; wherefore, they neither forfeit their [Page 199] own nor their Masters Money, in the Hundred or County.’

'Tis plain, that the Judgments in the Hundreds and Counties, are those which are here intended; so that the Barons which have Free Lands, De genera­libus placi­tis Comit. answer to the Bishops, Counts, &c. And the Head­boroughs, and other Owners of Land, who were to be at the County Court.

And the true Sir Henry Spelman agrees that the Barones Comitatus were amongst others, fundorum proprietarii Free-hol­ders: and these he says were Feudal Ba­rons, Baronum feodalium species; where, Feudal must be meant in a Sense diffe­rent from our Authors. But, our Un­dertaker will prove, that none but such as held by Knights Service, were Baro­nes Comitatûs.

This of being Suitors to the County and Hundred Courts, Against Mr. Petyt. p. 40. &c. was a Service inci­dent to their Tenures. For proof, he re­fers us to Glanvil, but with very little Success; for, in the 13th Book, which he fancies throughout, to agree with his Vagary, Liberi, & legales homines, are as often named as Milites: sometimes indeed, Milites strictly were required at the Common Law;1 Inst. f. 256. a. as where a Peer [Page 200] of the Realm was concern'd in the Acti­on; and four Knights upon their Oaths ought to return twelve Knights to try the Mise in a Writ of Right. [...]b. f. 159. a.

But, the Supposition that the Free­men, Masters of Families, such as were Conservators of the Peace anciently, and had given the Government Security for their Obedience to the Laws, could not be probi & legales homines, is a Con­ceit,p. 26. for which I dare say, our Man of sagacious Invention was beholden to no man. If he had looked a little better into Hoveden, who sometimes is in great Request with him, he might have found other free and legal men, besides Knights, and own'd so by a positive Law.

Siquis retatus fuerit coram justitiis Do­mini Regis,Assisae Hen. 2. Factae apud Cla­rendum & renovatae apud Nor­thamp­tune, Hoveden f. 549. de murdro vel [...]atrocinio, &c. per Sacramentum duodecim militum de Hundredo, & si Milites non adfuerint per Sacramentum duodecim liberorum & legalium hominum, & per Sacramentum quatuor hominum de unaquaque Villâ Hun­dredi, eat ad judicium aquae.

But, for his Notion to give it's due,

1. 'Tis absurd.

2. 'Tis dangerous.

[Page 201] 1. We know that the Titles to Estates from before the reputed Conquest, are allowed upon the Presentments of the Counties and Hundreds, Testatur Comi­tatus, Testatur Hundredus, &c. If these were all Strangers, brought in with the Conquerour, how could they know the Tithe, and who enjoyed the Land, Die quo Rex Edwardus fuit vivus & mortuus; and by what Services, nay, who was the third Heir, as we find they present? Besides, is it supposable, that they would have allowed the old Inha­bitants such large Shares, as we find in Domesday-book? but, if our Author had read the Tryal between Sheriff Picot, and William de Chornet, he would have found, that the Meliores of the County and Hundred, that present the Right to be in Chornet, were the English, who were not Tenants by Knights Service; since we are told, that they were all Normans: and this appears, in that they were Antiqui, such as were anti­ent, and knew how it was in the time of the Confessor; whereas, on the other side, were Villeins, vilis plebs, and praepositi, Bailiffs, all which may be Nor­mans, if he please.

[Page 202] Farther, when ten Tithings of Fre [...] ­pledges made an Hundred, to suppose that these were not Hundredors, legal men there,Glos. p. 31. but the Knights who were not bound with Sureties to their good Be­haviours, is as silly, as to say, two times two do's not make four.

2. His Notion is dangerous, and that according to that Improvement of it, for the sake of which, 'twas broach'd; But of these Tenants in Capite,Against Jani &c. p. 13. 'tis highly probable, (if not without doubt) that the two Knights were at first chosen by the other Tenants in Capite, in every County, to represent them. And the Reason given for this, is, That the Elections were to be made in the County Court by the Sui­tors: Against Mr. Petyt. p. 42. and this he imagines to have con­tinued in such Tenants, till the 8th of H. 6. c. 7. by which, any man that had 40 s. per annum, 8 H. 6. c. 7. of any Tenure, was per­mitted to be an Elector.

Whereas, to any one but him, 'twill be obvious, upon reading the Statute, that it is restrictive of that Power which before was in men of lesser Estates, but is very far from giving any new power.

Whereas the Elections of Knights of Shires, to come to the Parliaments of our [Page 203] Lord the King, in many Counties of th [...] Realm of England, have now of late been made by very great and outragious, and excessive number of People, dwelling with­in the same Counties of the Realm of Eng­land, of the which, most part was of Peo­ple of small Substance, and of no value, whereof, every of them pretended a Voice equivalent, as to such Elections to be made, with the most worthy Knights and Esquires, within the same Counties; whereby, Man­slaughter, Riots, Batteries, and Divisions among the Gentlemen and other people of the same Counties, shall very likely rise, and be: therefore, 'tis provided, that the Choice shall be in every County, by People dwelling and resident in the same Counties; whereof, every one of them shall have Land or Tenement, to the value of 40 s. by Year, above all Charges, &c.

Here is manifestly an Exclusion of some former Electors, but no new ones created; wherefore, the unforc'd Con­sequence is, that all Lands being now held in Free, or common Socage, and there being no time for Prescription, or any new Law, impowring such to chuse their Representatives, this great Preser­vative of the Rights and Liberties of [Page 204] the Subject, is defunct; and, I dare say, 'tis neither within his Art, or his Will, to recover it.

Yet, though he would smother it, I doubt not to find it alive amongst his Nobles; for, whatsoever made a man Noble, Against Jan. &c. p. 91. secured this Priviledge to him: But, Ingenuity made a man noble, there­fore every Ingenuus was always of Right an Elector for the Great Councils, or pre­sent at them. That Ingenuus and liber homo, were the same, I take it is evi­dent from Bracton, Bracton, lib. 1. c. 10. who makes the [...] Division of persons, to be into the Li­beri, Freemen, or else Servants; of such as are sui juris, who have that Li­berty,ib. cap. 5. p. 4. which he says is of the Law of Nature, or such as are under others, whose Liberty is obfuscata, darkened, or beclouded by the Law of Nations. These are but different Expressions of the same thing:ib. under the first, are the Nobles in a strict sense, as of an higher Order, such were the Majores Barones, and the Ingenui, sive Liberi; nay, the Libertini too,Bracton. such as were manumitted and restored to their natural Liberty, under the other, were Servants, Vil­lains, or others.

[Page 205] The learned Cluverius in his Descripti­on of Germany, Cluver. Germ. An­tiq. f. 121. cap. 15. Nobilium, Ingenuorum Libertorum, cui ad­mixtus Libertin [...] ­rum. from whence we derived our Distinctions, makes three Orders un­der the first Division. But, all Free-men of either Order, were Ingenui, with Bracton, who takes no difference here. And if we believe our Author's ipse dixit, all ingenui were Nobles, Quod erat demonstrandum.

'T will be hard, if amongst these In­genui, Against Jani &c. p. 42. we do find prodes homes too; but our Author has seen it written, prudes homes, though he cannot call to mind the Record. And truly, we have no great Reason to trust his Memory, since 'tis so treacherous, to expose him by fre­quent and palpable Contradictions. Well, Prudes homes they were, Ay that they were, that came to the Great Coun­cils, such as were the Wits in the Saxon Gemotes; but, if to the Folkmote, there came to be sure, all the Frank-pledges, then they were Noble Wits; and so vous avez, Against Petyt. p. 21. the liberi homines, prodes homes, prudes homes, and Wites, or Sapientes.

But upon second Thoughts, the Com­munitas populi were the Community of the Barons only,Against Petyt. p. 129. together with the Alios, the Milites, who held by Military Service of the great Barons, and the lesser Tenants in Capite.

[Page 206] And, for this there is Demonstrati­on, Ib. p. 56. in that the Meaning of Populus i [...] to be taken as contradistinct from Cla­rus, and then it signifies no more tha [...] Laity; it doth not denote a distinct State or Order amongst secular men or Laies, but an Order and State of men,Ib. p. 57. distinct from the Ecclesiasticks or the Clergy. This, by no means, is meant of the inferiour sort of People.

But, good Mr. Interpreter, if Clerus signifies inferiour Clergy, as well as the Superiour, nay, is most commonly appro­priated to the inferiour, what becomes of your profound Observation, and of all your Presidents? And how comes it to pass, that even the poor Mass Priests were anciently called Mass Thegnes?

Possibly, no man has a better Facul­ty than this Gentleman, of facing out clear Proof, which he often brings against himself: An. 1244. 28 H. 3. Against Mr. Petyt. p. 162. Thus he tells us, The great men of the whole Kingdom, the Arch-bishops, Abbots, Priors, Earls and Barons, were called together, in which Council, the King, by his own Mouth, in the Presence of the great men, in the Re­fectory at Westminster, desired a pecuni­ary Aid; to whom it was answered, that [Page 207] they would treat about that matter. And the great men retiring out of the Refectory, the Arch-bishops, Bishops, Abbots, and Priors, met and treated by themselves. At length, the Earls and Barons were asked,The Dr. omits eng­li [...]ng ex parte eorum, either not understand­ing it, or because it manifestly destroys his Whimsey, p. 17. if they would unani­mously consent to the Resolutions they had taken, in answering and making provision for what had been demanded of them? Who answered, that without the Common Vniversity,Commun [...] universita­te, rather the Uni­versity of the Com­mons. they would do nothing. Then, by common Consent, there were elected on behalf of the Clergy, the Elect of Canter­bury, the Bishop of Lincoln, Winche­ster, and Worcester. On behalf of the Laity, Earl Richard the King's Brother, Earl Bigod, Earl of Leicester, Simon Montfort, and Earl William Marshal. For the Barons, Richard Montfitchet, and John Baliol, and the Abbots of Bury and Ramsey; that what they twelve should resolve on, should be recited in Common, and that no form should be shewn to the King, by Authority of the twelve, which had not the Common Assent of all.

Here is so manifest a Distinction be­tween Lords and Commons, Members of the Great Council, that I dare say, no [Page 208] man but this Dr. could have united them into one Order, as he does all the Laity.

But here 'tis obvious, that when the Lay Lords, Earls and Barons, were all together, and ask'd by the dignify'd Clergy, then present, whether they would agree with them? The Lay Lords answered for themselves, that they would do nothing without the Common Vniversity, which could not possibly be only the Lords Spiritual and Temporal,Let our Dr. answer this, to save his Credit. they referring to others, di­stinct from both; and if the Temporal Lords had concurr'd, here had been the Consent of the Common Vniversity of Lords, if we may so call it. But be­sides the Consent of all the Lords, there was requir'd the Consent of another body of men, and these must be the Commons, which might well be of Cler­gy and Laity; wherefore, here was Cle­rus and Populus, Against Mr. Petyt. p. 56. and that such as were inferiour to Barons, Tenants in Capite, and Noblemen, that is, to such as now are acknowledged to be the only No­bles.

But for a full Proof, both of our whole Cause, and of his excellent Fa­culty [Page 209] Faculty of answering himself,Against Mr. Petyt, p. 183. Pat. 8. 9. Joh. n. 3. as long since as King John's Reign, there were present at Council, Vniversitas, Comitum, Baronum, Mi­litum, & aliorum fidelium; alii fideles fol­lowing the Milites, he yields, that therefore they were the King's ordinary Subjects, or o­ther Free Tenants, and not Tenants in Capite.

Thus he stifles his thin Notion with a Record, and yet pretends, by his Chymical Art, to bring it to Life again, with the Au­thority of an Historian; who, though much to be rely'd on, is surely of less Au­thority than a Record. Well, but what says the Historian? Do's he say it was not so as the Record has it? No, but expresses himself in general Terms, and tells us, that there were the Comites, Barones, Milites, and others, qui ei servitium militare debebant.

Perhaps he will smile, at my saying 'tis in general Terms, when he is so particular.

But with his good Leave, he is not clear, whether 'twas Service because of the King­dom, which all men were to perform in Proportion, even to their personal Estates, or because of Tenure.

Indeed, he by no means seems to incline to the last, it being qui debebant Servitium militare, not qui tenebant per Servitium mili­tare. Besides, all that so held, had been Milites; but here was another sort of men. [Page 210] Yet,p. 184. the Dr. very comically tells us, Here we find others that ow'd the King Military Service, and so were Tenants in Capite, be­sides Earls, Barons, and Knights.

The place is plain; yes 'tis very plain, that the Dr. says so: and as plain, that few men else would have spoke so.—

Pray, Good Sir! Do you know the mean­ing of Tenure in Capite, by Knights Service? Where lyes the difference between holding in Capite of the King by Knights Service, and owing the King Military Service, as Tenant in Capite? If there be no Difference, how comes it to pass, that one who held in Capite, by Knights Service, ib p. 39: was no Knight, tho Tenants in Military Service, in those times, were the on­ly Great Freemen, Glos. p. 10. (as that Service was the on­ly free Service) although a Bond-man might hold by free Services, and yet be a Bond-man.

Do not you your self own, that all the legalmen or Jurors that held in Military Ser­vice, were Milites, in referring to Glanvil, where, are some Writs to summon Juries of Knights only, whence you would infer, that the Legales homines mention'd by other Writs,p. 40. were all Knights. Were they Bond­men holding in Military Service, that were the Fideles at Council?

But that the Plebs, Jan. p. 265. the Ingenuitas Reg­ni, or liberi & legales homines (as Sir H. Spel­man [Page 211] tells us, the Word Ingenuus has an­ciently been us'd) were Members of the Great Councils, notwithstanding the Do­ctors Sense,2 part of the Glos. Jan. p. 266. and the Assertion put upon Sir Hen. that amongst the several Councils which he had read of, he found nothing of the Plebs.

The Dr. may please to consider of these two following Authorities.

Quomodo Nigellus Episcopus appellatus est ad Roman.

Sedit autem Rex Stephanus in sede regni sui & siluit terra in conspectu ejus & veni­ens Londonias que caput est Angliae occurre­runt ei pacifice suscipientes illum cum magno honore ibi concilio adunato Cleri & popu­li Episcoporum atque Abbatum Monachorum & Clericorum,Chronicon Eliense pe­nes Dr. Gale. Plebisque infinite mul­titudinis presidente Romanae sedis legato fratre Domini Regis Henrico Wintoniensi Episcopo & Theobaldo, quem nuper Archie­piscopum Cancie fecerat de statu Regni cum illis tractavit, & ut in hostes pacis & patriae Sententiam Ecclesiasticae severita­tis promulgarent indixit cumque invicem cau­sae ab alterutro agerentur prior quidam vital. nomine Conquestus est, coram omnibus quod Dominus Eliensis Episcopus eum non judica­li ordine de sua Ecclesia expulserit huic per omnia ille legatus favebat & suffragari vo­luit [Page 212] cujus & machinatione quidam magnae Auctoritatis, & Prudentiae viri adversus do­minum Nigellum Episcopum parati insurre­xerunt illum ante conspectum Domini Papae appellaverunt sinistre & objicientes plurima maxime quod seditionem in ipso concitaverat regno & bona Ecclesiae suae in milites dissipa­verat aliaque ei convicia blasphemantes im­proporabant.

Anno 1136. Edicto per Angliam pro mul­gato summos ecclesiarum ductores cum pri­mis populi, ad Concilium Londomas consci­vit; illis quoque quasi in unam sentinam con­fluentibus, ecclesiarumque columnis sedendi ordine dispositis, vulgo etiam confuse, & pexmixtim ut solet ubique se inge­rente.

SECT. 2.

ANY one that reads our Author's book gelt from his indecent Reflections, would think him to mean very honestly, and that he urg'd nothing, but with de­sign of being confuted; thus when he pro­duces Mr. Camden's Authority for the new Government, and charges me with a design­ed Omission of Eis, one would imagine, he thereby intended to put an Argument into my Mouth, for the Rights of inferi­our Proprietors.

Statuit & ordinavit quod omnes illi Co­mites,Against Mr. Petyt. p. 227. & Barones Angliae, quibus Rex dig­natus [Page 213] est brevia summonitionis dirigere, ve­nirent ad Parliamentum suum, & non alii, nisi fortè Dominus Rex alia illa brevia eis dirigere voluisset.

These alia illa brevia, he fancies to have been directed to the Pares Baronum; wherefore, as they had the same Writs with the Barons, and were Barons before, being part of the Baronage of England, 'tis no more, than that all Barons to whom the King directed his Writs, should come, and no other Barons, but such as he di­rected his Writs to, and they who were Barons before, and called by Barons Writ, must, by a strange kind of Metamorpho­sis, cease to be such; besides an Altera­tion then being made, and the Commons not taken notice of, they must have come before, otherwise, whence is their Right at this day? And what other Change could there have been, but the bringing in Representations instead of personal Rights, and that amongst inferiour Land Owners, since the Majores Barones came before in Person, Against Jan. &c. p. 7. and Burroughs holding in Capite by Representation, as appears by E. 2. nay and Towns incorporated, not holding in Capite.

But 'twas nisi forte, unless casually, or by Chance, or sometimes, other of those same very Writs, and of the same Form which [Page 214] had issued out to the Earls and Barons, were directed to any other; that is in effect, ac­cording to his Notion, unless the same Writs which were directed to Earls and Barons, were directed to Earls and Barons, which same Writs, must have different ef­fects upon persons in the same Circum­stances and Qualifications. But, how can fortè here signifie more than When? For, being the times when the Parliament should sit, were not assertain'd then, or since, they were to be governed by Chance and various Accidents determining the King's mind.

But, whereas the alia brevia are supposed to be directed to the Pares Baronum, where will such Pares, not Earls, or Barons, be found in any of the ancient Statutes of the Realm, until E. 2. to signifie the Nobility.

Dic quibus in terris, & eris mihi magnus Apollo.

Upon the whole, if eis turn the words to the Dr's Sense, 'tis manifestly put in by mistake; for, that Sense would set aside the Authority, which even himself receives.

SECT. 3.

TO evince the Truth of my Notion, that the Commons, such as are now represented by Knights, Citizens, and Bur­gesses, came to Parliament from of old time [Page 215] under the name of Nobles. If the Knights of the Counties were Grantz (as he would have it) because of Tenure in Capite, how comes it to pass, all the Citi­zens and Burgesses were Commons, when they that came for the Counties were Grantz? (Not to enforce the Argument à for­tiori, from the Traders being sicut Malmesb. Hist. nov. fo. 106. De regis of­ficio & ap­pendiciis co­ronae regni Britanniae. Proceres, or quasi optimates: Lon­dinenses qui sunt quasi Optimates pro magnitudine Civitatis in An­glia) This I insist upon, that even in those very times when Com­moners undoubtedly came to Parliament, as now, all the Members are called Nobles.

It was affirm'd in the Confessor's Law, received by William 1. Debet etiam Rex omnia rite facere in regno & per Judicium procerum Regni.

This very Law, Rot. Claus. 3. E. 1. m. 9. Cedula. Placita co­ram Domino Rege apud Westm. de Term. Pasc. Anno Regis E. 3. post conquestu [...]m 20. part of the Corona­tion Oath, wherein those Proceres are now call'd Vulgus, E. 1. interprets, when in answer to the Pope's Bull sent by his Chaplain, Pro censibus colligendis, & dena­rio Beati Petri, he writes, that his Parlia­ment being lately dissolved, Super hoc ne­quiverimus, super petitione censûs ejusdem deliberationem habere cum Praelatis & Pro­ceribus nostris, sine quorum communicato Concilio Sanctitati vestrae super praedictis non possumus respondere, & jurejurando in Co­ronatione nostrâ praestito sumus astricti quod jura Regni nostri servabimus illabata, nec aliquid quod diadema tangat Regni ejusdem absque ipsorum requisito consilio faciemus.

[Page 216] This royal Comment upon the former Law, shews us, that the same Council, which was a Council of Peers, when, ac­cording to the Dr. there came the Maj [...] ­res Barones, their Tenants by Knights Ser­vice, Burroughs holding in Chief, and Towns incorporated not holding in Chief, is still a Council of Peers, though compos'd of all the former, and the Grantz of the Coun­ties; which, as I have shewn, were not confin'd to men of those Tenures. And, what reason can be shewn, why the Grantz of the Counties were not Peers in the Reign of William the First, as well as of Ed. 1.? That then they were call'd No­bles, the following proofs make evident.

Rex ad Parliamentum West. An. 1275. M. West. f. 407. 3 E. 1. omnes No­biles Regnisui jusserat congregari, in quo sta­tuta multa ad utilitatem Regni fuerunt pub­licata. This assembly of Nobles, was the Parliament at Westminster, where the Sta­tutes were made by the King, Cook 2 Inst. f. 156. Person Counsel, & per l'assentment des Archeves­ques, Evesques, Abbes, Priours, Counts, Ba­rons, & tout la commonalty de la terre il­lonques summons.

Post pas [...]ha ad Parliamentum West. An. 1276. 4 E. 1. Ma. West. fo. 408. mul­tis Nobilibus congregatis pacem suam quon­dam pacis perturbatoribus Rex concessit, quin­tam decimam omnium bonorum temporalium­tam [Page 217] Clericorum quam Laicorum inaudito mo­ [...]e adunguem taxatam Rex jusserat confiscari.

Here the Commons, included under the name of Nobles, granted the 15th, as ap­pears by these Authorities.

Rex &c. Cum Archiepiscopi,Rot. Pat. 4. E. 1. m. 6. intus. Ab­bates, Priores, Comites, Barones, Milites, & omnes alii de Regno nostro quintam de­cimam de bonis suis (quibusdam tamen excep­tis de honore de Bergaveny) nobis liberali­ter concesserunt.

Rex &c. Licet Comites,Rot. Pat. 4. E. 1. m. 6. intus. Barones, & alii magnates, & Communitas Regni nostri quin­tam decimam omnium bonorum suorum,Pro R. Can­tuar. Archi­episcopo. &c.

Let any sober knowing man consider these few Instances of many,Against Jani Angl. p. 40. wherein the Commons, undignify'd Proprietors of Land, are comprehended under words now ap­propriated to the Higher Order, and let him think with himself, whether these were all Tenants in Capite, as our reverend Author insinuates, but without all colour of Reason.

I must take leave to add a few more Authorities, to prove, that after 49 H. 3. all the Members of Parliament were call'd Nobles; tho, that the Commons were there, is beyond all manner of Dis­pute.

The Statute of Westm. Rast. Stat. fo. 28. & 40. the second, An­no 13. E. 1. upon the 46 Chapter concern­ing taking of Salmons, a Record, tells us, [Page 218] was,Rot. Pat. 14. Ed. 2. De inqui­rend. de Salmonibus captis in Com. Glou. contra sta­tutum. Statutum de Communi Consilio Reg­ni, ordain'd of the Common Council o [...] the Kingdom.

The Historian expresseth this Parlia­ment thus; His temporibus convocatis [...] ­tentioribus terrae suae apud Westmonasteri­um condidit Rex statuta quae Westmona­sterii secundi dicuntur; Ma. West. fo. 412. l. 35. here the more pow­erful men of the Land were called or sum­moned to that Parliament, not a Syllabl [...] of the Word Communitas, or Commons but the Dr. will not deny, but that the Commons were part thereof; for, the 13 [...] of E. 1. was about 21 years after 49. H. 3.

Anno 27. E. 1.Rast. Stat. fo. 47. The Statute of Fines was ordained, De Communi Concilio regni, yet no mention is made in the body,Rot. Claus. 8 E. 2. m. 8. of the Assent of Lords or Commons, notwith­standing they gave their Assent thereto otherwise, it could not have been a Law o [...] Statute;Rot. Parl. 15 E. 3. n. 50. dors. for, the Parliament of 15 E. 3 tells us, that the Statute of Magna Charta and other Statutes, were made by King▪ Peers, and Commons, and so this 27 E. 1. And there are Writs of Summons,Rot. Claus. 27 E. 1. m. 9. dorso. de Par­liamento tenendo to this Parliament, which Mat. Ma. West. fo. 431. l. 48. Westm. more Historic [...], thus general­ly delivers, Dominica secunda quadrag [...] ­mae citatis magnatibus regni apud Westmo­nasterium, no Commons particulariz'd. [Page 219] Anno 28 E. 1.Rast. Stat. fo. 49. The Statute called Articuli [...] Chartas, Rot. Pat. 7 E. 3. pars prim. m. 21. de inquirend de diversis provisoribus Hospitii Regis. as a Writ upon the 2. Chap­ [...] concerning Purveyors, proves, was or­ [...]ned de Communi Concilio regni, by the [...]mmon Council of the Kingdom.

The Dr'sMat. West. fo. 433. l. 36 Historian mentioning this [...]rliament, writes in Octabis Sancti Hilla­tenente rege Parliamentum suum Lincol­ [...] Conquesti sunt Comites & Barones, not a [...]rd of the Commons; yet, most certain [...]s, they were also there, as is evident by [...] Writ of Summons and expences to that [...]rliament,Mr. Pryn, 4th part of Parlia­mentary Writs. p. 12, 13. 16. Rot. Claus. 29. E. 1. m. 17. dorso. and the Sheriff of Kent's being [...]mmanded to levy the wages for Waresius Valoignes and Henry de Appletrefield, [...]ights of the County, nuper ad nos de prae­ [...]to nostro us (que) Lincolniam pro Comitatu [...]dicto venientibus ibidem nobiscum super versis negotiis nos & populum regni nostri [...]ialiter tangentibus tractatur' to treat with [...]e King upon several Affairs, especially, [...]uching the King and People.

The Statute of 1 E. 3. was de Communi [...]ncilio regni Concordatum & Statutum in [...]rliamento apud Westm.Rast. Stat. 1 fo. 64. agreed and [...]acted by the Common Council of the [...]ngdom,Rot. Pat. 1. E. 3. m. 20. in a Parliament at Westminster. [...],Rot. Claus. 2 E. 3. m. 20. as several other Records ennumerate [...]he several parts thereof, Per nos & Prae­ [...]os Comites Barones & communitatem reg­ni [Page 220] ibidem existentes, By the King, and Prelates, Earls, Barons, and the Comm [...]nalty of the Realm there being.

Now, what saith the Historian? W [...] thus he expresseth this Parliament: Walsing­ham, f. 126. l. 28. & 29. P [...]natale Regina cum filio suo ante festum [...]phaniae venit Londonias ubi cum magno g [...]dio & muneribus est suscepta convenit e [...]illuc tota Regni Nobilitas citata per prius parliamentum tenendum ibidem in Crast [...]dicti festi.

But to press the Dr. with full weigh [...] shall afford him some presidents of [...]dresses to the whole representative Body the Commons of England, as to Wi [...] which took in all the Members before [...] suppos'd Conquest, or Nobles which [...] as comprehensive after.

1. Tressages Communes.

A les Tressages Communes de cest [...]sent Parlement.Rot. Parl. 11 H. 4. n. 36. Pur Jo­han. Bar­trum.

As Tressages Communes, Rot. Parl. 13 H. 4. n. 23. Pur Labbe de Furneys. &c. que p [...] considerer les premisses, & prier à nostr [...] S [...] ­nieur le Roy de grantier per Auctorite Parlement, &c.

In the like form, Pur Tho. Chaucer Esq 2 H. 5. n. 18. &c. Peticion pur Mairs, Conestables, & la Compaigne de [...]staple a Caleys, directed as aforesaid.

As Tressages Communes supplie hu [...]ment Lucie que fuist la feme Esmond [...]gairs Count de Kent. Rot. Parl. 2 H. 5. n. 47. Rot. Parl 9 H. 5. n. 19.

[Page 221] Que pleise a voz Tressages discretions [...]siderer.

Pur le Countess de Marche,Rot. Parl. 3 H. 6. n. 29. Ibid. n. 32. pleise a Tres­ [...]es Communes.

Pur John Lescrop Chivaler, in like manner. Treshonorables et Tressages Communes. Labbe de Newenham against Monsieur [...]lip Courtnay Chivaler.Rot. Parl. 4 H. 4. n. 12.

A les Treshonourables, & Tressages [...]ommunes, de cest present Parlement sup­ [...] treshumblement, &c. Upon which peti­ [...]on, and others assented to, after deli­ [...]ered to the King and Lords, the Abbot [...]as relieved, and Sir Philip was adjudg'd [...]nd awarded to the Tower.

As Treshonourables,Rot. Parl. 2 H. 5. n. 16. & Tressages Com­ [...]unes, &c.

Pleise a vostre Tressages discretions de [...]nsiderer & auxi prier nostre Seignieur le [...]oy,Pur Thomas Salman. de grantier & ordeigner en son dit Par­ [...]ment peradvys & assent de toutz les Seig­ [...]eurs Espirituelx & Temporelx, &c.

Qua quidem petitione coram Domino Re­ [...] & Dominis Spiritualibus & Temporali­ [...] existentibus lectâ & materiâ in eadem [...]nius intellectâ idem Dominus Rex de as­ [...]nsu Dominorum predictorum & ad requi­ [...]ionem Communitatis predicte, &c.

As Tressages, Rot. Parl. 8 H. 6. n. 51. & Treshonorables Com­mons de cest present Parlement monstrent les [Page 222] Mair, Aldermans, & Communes de la [...] tee de Londres que please avoz Tressag [...] & Tresprudez discretions considerer, [...]

As Tresgratious, Rot. Parl. 11 H. 4. n. 35. Pur Monsieur Johan Tre­beel Chi­valer. & Tressages Sires [...] valers, & Communes de cest present Parl [...]ment supplie treshumblement, &c. Quele p [...] ­tition [...] devant le Roy, & les Seignieurs [...] Parlement en entendue, & le dit Joha [...] amesme en plein Parlement, Rot. Parl. 4 H. 5. n. 17. &c. pur Joh [...] Alleyn & autres.

Rot. Parl. 4 H. 4. n. 19 Pur Monsi­eur Tho­mas Pome­roy Chiva­ler. Ales Treshonourables & Tressag [...] Communes de cest present Parlement. 3. Honourables & Tressages Commun [...] ▪

Rot. Parl. 3 H. 5. pars 1. n. 7. Pur▪ Henry Barton.As Honourable, & Tressages Se [...] ­nieurs les Communes de cest present Parl [...] ­ment, &c.

Rot. Parl. 3. H. 5. pars 1. n. 9. Gentz. de la Villae de Sond­wich.As Honourable, & sages Commun [...] pleise a vous honourables Sires considere [...] &c. Lu quele peticion & bien conceive [...] mesme le Parlement fuit respondu, &c.

Rot. Parl. 3 H. 5. pars 2. n. 36. Hospi­talx. Pleise a les Honourables, & sage [...] Communes.

Rot. Parl. 4 H. 5. n. 19. Pur Labbe de Fountaynes. Pleise as Honourables, & Sag [...] Communes.

Rot. Parl. 5▪ n. 16. Pur le Duc Decastre.As Honourables Communes, que plei [...] a vous Sages discretions de prier &c.

Rot. Parl. 9. H. 5. pars 2. n. 11. [...] Willielmo Domino de Clynton. Ales Honourables, & Tressages Com [...] ­munes supplie Sire William de Clynton, & [...]

[Page 223] As Tressages, Rot. Parl. 6. H. 6. n. 17. & Treshonourables Com­munes de cest present Parlement, Pro Johan­ne Harris. pleise [...]vous Tresnobles discretions de prier a no­ [...]tre Seignieur le Roy, &c. Rot. 8. H. 6. 29.

Please a Tressages, & Honorables Com­munes, &c.Rot. Parl. 15 H. 6. n. 36.

4. Honorables & sages sires les Communes.

As Honorables,Rot. Parl. 2 H. 5. n. 51. & Sages sires les Com­munes de cest present Parlement.Rot. Parl. 4. H 5. Pur la terre Dirland.

As honorables & Sages sires les Communes dicest present Parlement supplient, &c.

5. Honorables, Treshonorables, Tresnobles, Gra­cious, & Tressages Seignieurs les Communes.

A les Tressages,Rot. Parl. 2 H. 5. pars 2. n. 22. & Honorables Seigni­eurs les Communes de cest present Parlement supplie treshumblement, Pur Mark le Feyre. &c.

Please avoz Honorables, & Sages dis­cretions graciousement Supplier a nostre Sovereign, &c. La quele peticion lue en dit Parlement & plenement entendue fuit re­spondu en manere qeu suit, &c.

Rot. Parl. 4 H. 5. n. 20. As Treshonorables, & graciouses Seignieurs la Commune du cest present Parlement, &c.

Bun­del Pet. Parl. 4. H. 4. Pur Bur­geys de la Ville de Lym.As Tressages, & Tresnobles Com­munes de cest present Parlement.

SECT. 4.

FOR Confirmation of the Nobility of such Commons as now are represent­ed [Page 224] in Parliament, I shall add the Authori­ty of our great Master of Records.

The Design of his Book is [...]hie [...]y to prove, that only Tenants in Capite were Members of the Great Council: but, finding all the Nobility there, he often extends it [...] farther, to their Tenants by Knights Ser­vice.

One of his Arguments to prove that Commoners were not Members, is, because tho Records mention Communitas or Mili­tes, p. 110. (which takes in the Tenants in Capite▪ and their Tenants by Knights Service) & Fideles, p. 183. yet Mat. Paris has only tota Angli [...] nobilitas, or magnates regni. And, in short [...] we are to understand, that all the Mem­bers were Nobles, which is a clear proo [...] that when Communitas, or Fideles beside [...] Milites, are mentioned to have been Mem­bers, those, though more than Tenants i [...] Capite, and their Knights, were all Nobles [...] Quod erat demonstrandum.

This alone, were sufficient to discover th [...] Writers Ignorances,Against Jan. p. 54. in that he hath cited Re­cords and Histories directly against himself [...] And, he in effect, confesses, how he hat [...] cheated his Readers,ib. p. 63. and abused and wreste [...] the Records and Histories he hath cited▪ Where he has strained them to a contrary Sense.

FINIS.
A SPEECH, According …

A SPEECH, According to the Answerer's Principles, Made for the PARLIAMENT AT OXFORD.

LONDON, Printed in the Year MDCLXXXI.

THE SPEECH.

I Will not say the Dr. has followed the biting Advice of the Satyrist,

Aude aliquid brevibus Gyaris, & carcere dignum
Si vis esse aliquis—
If you'l a figure in the Kingdom make,
By punishable Crimes the way to't take.

After he has taken his demerited Seat in the House of Commons, with a Magiste­rial look, and a Professor's preparato­ry hem, thus, methinks, he addresses him­self to the Chair.

Mr. Speaker,

I Cannot but congratulate our happy meeting in this Place, where the Vni­versity will teach Loyalty to the most Factious, and dispose them to swallow down that Remedy, which, out of a [Page 2] burning Zeal to bring into the World something suitable to the Dignity of my Professor's place, I am eager, and all Passion to communicate. My Remedy, in short, is a Lenitive to cure the raging heats of insolent Parliaments, which are too apt to value themselves upon their pretended Antiquity.

Not loving Idleness,Letter to the Earl of Shafts­bury. at vacant times from study, and Practice in my Profession, (as a diversion) I have with great In­dustry, and I may say it, some Judg­ment, examined Things done in this Na­tion more than a thousand years by past, with a continuation of them until three or four hundred years last effluxed.

Though there are several Lawyers here, Against Mr. Petyt, p. 29. yet they have study'd, and know onely Popular and Lucrative Law, and not the Constitutions of the Nation before their own time. Concerning which, they may be content to hear my Reading.

The Records which they open, are of a nature far short of those upon which I have been poring these sixteen years:Mat. Par. set above Record. Against Mr. Petyt, p. 183. No heed to be taken to the old Monks and Historians. ib. p. 16. in Marg to the same purpose. ib. p. 43. Nor must they pretend to that acquaintance which I have with Histo­rians, whose Authority, I can, by my [Page 3] sagacious Inventions, advance, or depress, as I see occasion.

Vnder the Saxon Government,p. 6. the People were so far from not having their Votes and shares in these Councils, as only they had Uoices in them.

If any more had, they were the Priests, but the Princes, Great Officers, and Leaders, had no Voices at all; for, if they had, 'twould have spoil'd the singular Democracy.

Of the many Councils by Mr. Petyt ci­ted,p. 13. there is not to be found the word Po­pulus, in the Title, Preface, or Body of any of them, except in that spurious one of King Ina: p. 15. Yet, now I bethink my self, King Edward, sirnam'd the Elder, cal­led a Synod of English Nobility, wherein Plegmund presided: Here his own Author tells us, in few words, the meaning of the long Title of this Synod, which just before he had mentioned, viz. That the Bishops, Abbets, Fideles, Proce­res, and Populus were all Nobiles, No­blemen. Whence some will infer, that inferiour Proprietors were there as Nobi­le [...], but 'tis without all colour of Reason.

And in the Grand League and Vnion between the Brittons,ibid. p. 8. and 9. Saxons, and Picts, [Page 4] per Commune Concilium, & assensum om­nium Episcoporum, Procerum, Comitum, & omnium Sapientum Seniorum & Po­pulorum; the Sapientes, Seniores, and Populi, are the Bishops, Peers, and Earls.

The Generalis Senatûs, [...]b. p. 10. & Populi Conventus, & Edictum, is therefore the Assembly and Statute of the Great men.

The Law made à Rege,ib. p. 11. Baronibus, & Populo, had the like Legislators; and, I do affirm, Against Mr. Petyt, p. 13. that the word Populus is not to be found in any of these.

Thus I have wonderfully discovered the unsoundness of Mr. Petit's Assertions, ib. p. 2. (though it will be objected, I have jumpt over several Arguments, and they material ones) concerning Great Councils before the Conquest. Upon which, it follows, that if the Populus were ad­mitted after, it must be by the bounty of the Conquerour, who might, at plea­sure, revoke his Concessions. For the Story of Edwin of Sharnborn, b. p. 24. supposed to have enjoyed his Lands by a Prior Title, 'tis a famous Legend, and trite Fable, though he had the King's man­dat for Recovering his Estate.

[Page 5] Sir Edward Coke, ib. p. 30. who, to avoid the evidence that our English Laws were the Norman Laws, Against Jan [...], &c. p. 89. said, The Laws of Eng­land are Leges non scriptae, said it preca­tiously, without any Foundation or Au­thority. Besides, 'twas ridiculous, as if they were known by Revelation, di­vinely cast into the hearts of men?

Though some may impertinently ask me, Whether there were not Laws be­fore Writing, and that without Revelati­on, or divinely casting into the hearts of men?

But that,Against Mr. Petyt, p. 167. if affirmed, is a palpable and gross Error.

What though that Clergy-man-Lawyer Bracton agree with Coke, yet he spoke out of Ignorance or Design, when he said, Absurdum non erit leges Anglicanas (licet non scriptas) leges appellare. Bracton, l. 1. fol. 1.

William the Conquerour brought in a New Law,Against Mr. Petyt, p. 29. and imposed it upon the People. The greatest part of the Antient Law, as it was brought hither by the Normans, was exacted and observed by, ib. p. 43. and upon, only the Normans: For the English, they had no Property or Rights left: And so were all Outlaws.

[Page 6] This Domesday-Book in every Coun­ty shews, though, 'tis said, several English-men are there mentioned, holding by Ti­tles not derived from the Conquerour.p. 176.

And, for a farther proof of this, King William's Law to all the Freemen of the whole Kingdom, was made only to Te­nants in Military Service,ib. p. 39. which were French,p. 35. Flemings, Anjovins, Britains, Poictovins, and People of other Nations.

When this King, in the 4th of his Reign summon'd Anglos Nobiles, & Sa­pientes, & suâ lege eruditos, to give an account of their Laws, 'twas a Sham Summons, for no English were No­bles, nay, none were so much as Free-men, but the Foreigners, amongst whom William divided the Kingdom, and therefore Strangers that had their Estates came in their steads, and gave an Ac­count, upon Oath, of the Laws before their own time; as they us'd to do of matter of Fact,p. 39. when sworn upon com­mon Juries.

William the Second, and Henry the First were Usurpers and Traitors, p. 51. not­withstanding the People's Elections.

Clerus and Populus are to be un­derstood onely of Tenants in Capite, p. 56. [Page 7] never of the inferiour sort of People.

Wherefore, they dote who say that the inferiour Clergy, nay the dignified, not Tenants in Capite, came to Great Councils before 49 H. 3.

It's very true,Against Jan. &c. p. 70. that in our Ancient Par­liament-Rolls, the Knights of Shires are sometimes called Grantz des Counties, or Great men of the Counties; and well they might, for, without doubt, they were most commonly the greatest Tenants in Ca­pite under the degree of Barons in each County.Against Mr. Petyt; p. 116. & 117. And, for evidence of this, the Great Tenants in Capite that were no Barons; and, perhaps, the least Te­nants in Capite, in the times of Ed. 3. and Ric. 2. are call'd autres grantz, or Grandes, autres Nobles, which were Barons, Peers called by the King's Writ into the Lords House at pleasure, and omitted at pleasure. Wherefore, 'tis to be observed, that the Knight for the Shires might well be Noble or Grantz, since they were call'd sometimes to sit in the Lords House; And whether they that were chose for the Counties, and did not sit in the Lords House, as Ba­rons Peers, were Grantz or Nobles, per­haps may be a Question.

[Page 8] As a choice piece of Learning, I must acquaint you, that though sometimes Fideles signifie qui in Principis alicujus potestate, Glos. p. 15. & ditione sunt, qui vulgo subje­cti appellantur; Subjects in general; yet, unless there be special matter to shew the contrary, 'tis meant of Uassals, who, having received Fees, are in the Retinue of some Patron or Lord; if in the King's Retinue, they are Tenants in Capite. So when we find Writs directed, Omnibus Christi Fidelibus. Glos. p. 17. Here, when there is no more Subject matter to determine it, than when 'tis omnibus Fidelibus Regni, they must be our Saviour's Tenants in Capite.

When the Form of Peace, Against Mr. Petyt, p. 125. in the 48th of H. 3. was by the Assent of the King, the Bishops, and the whole Com­munity of the Kingdom, can any man say the Earls and Great Barons (these Tenants in Capite) gave not their Con­sents? They must be included in, and were a part of the whole Community of the Kingdom.

And indeed, to speak the truth, it is not denied against me,Against Jani, p. 71. but proves their Notion to those Vnwary Readers, whom they seduce to have some good opinion of their Fancies.

[Page 9] Though that Form of peace is said in the Record to be Actum in Parli­amento London, Against Mr. Petyt, p. 208. yet the Prelates and Barons were such as sided with Mont­fort, p. 120. and the Community was the Body of his Army, and the Citizens and other of the Faction, they were not the Community of the Prelates and Barons onely, as at other times. Nay, here were the Citizens and others besides the Army: And yet the Community or Body of the Army, took in all besides the Prelates and Barons.

And this must needs have been the Army, Mat. Westm. p. 394. Posted convenienti­bus Londini Praela­tis, &c. partis il­lius, quae Regem su­um tam seditio è te­nuit captivatum. because 'twas after their work was over, that the As­sembly at London was. And the Army it must be, though (as 'tis idely objected) it is far from appearing that all the Bishops, Earls, and Barons which consented had been in Arms.

Though they that were of the Facti­on, as is usual, caball'd together, and, as some will say, onely resolved upon what they would press the King to, they hereby Statuebant, &c. made Laws before the consent of the King, and all [Page 10] the Bishops, Earls, and Barons, and, it should seem, before all were assembled, or could be a Parliament.

And (which such as never intended to understand will make a wondring at) the Community was the Body of Mont­fort's Army,Against Jan. &c. p. 26. and the Citizens and others of the Faction;Against Mr. Petyt, p. 125. yet here, at this very time and place, the Community of the Kingdom of England must needs be the Community of the Barons, and Great men, Tenants in Capite by Military Service, and no other: Not onely because here was the Body of the Army, and Citizens, and others of the Faction, but because as is clear from an impregnable instance, (viz. of the same kind of Council which sent the Letter to the Pope in the Case of Adomar or Aymar de Valentia) besides the Earls,p. 126. & 127. Noblemen, or Barons, Great men, there were the Tenants by Military Service, that held of, and attended the Barons and Great men; and when the King said, that though He and the Great men should be willing that Adomar, who withdrew himself out of the Kingdom, should return; tamen Communitas ipsius, which is the Community, not his, would not suffer his coming into England; the [Page 11] Great men were the Kings Friends, p. 121. the Community his Enemies.

So that here are two Armies, the Great men, the King's Friends, on one side, and the Community, his Ene­mies on the other, which is just such another Council as that in the 48th, yet, without doubt, none of the King's Party or Friends were there. Rot. Parl. 42 H. 3. m. 3. n. 9.

Though in the Articuli Cleri 9 Ed. 2. about fifty years after, we find Petiti­ons presented by the Clergy, temporibus progenitorum nostrorum qu [...]ndam Regum Angliae in diversis. Against Mr. Petyt, p. 121. Parliamentis. Which includes the time of H. 3. Grandfather to Edw. 2. At least, this was meant of several Armies, and so was the Parlia­mentum Oxon. Against Mr. Petyt, p. 192. but six years before the Military Parliament of the 48th: an Army being a Parliament in the sense and general use of the word at that time, ib. p. 183. that is, a great Assembly, Conventi­on, or Meeting of the Faction and their Army. And thus, in the 30th of this King, the Parliament is call'd the Vni­versity of the Militia, that is, of them Qui militare servitium debebant, the Mili­tes & Fideles.

[Page 12] It seems, in many of these Parlia­ments, or Armies (chuse you whether) the Clergy, in their Canonical Ha­bits, address'd themselves to the Mili­tary men; upon which sort of Par­liaments, they could not fail of pre­vailing with their brutum fulmen of Ex­communication, and Ecclesiastical Scare-crows.

What,Against Mr. Petyt, p. 135. is Petyt so ridiculous to have the Commons an essential part of the Parliament from Eternity? 'Tis plain, that the Commons began by Rebel­lion, Nota. To lessen their own power. because their Constitution was not forc'd by the Barons with their Swords in their hands, or promis'd to them then,Ib. p. 226. but began from the King's plea­sure, when the Rebellion was over, and the King was restored to his Regality, Post magnas perturbationes, & enormes vexationes inter ipsum Regem, & Simonem de Monteforti, & alios Barones, motas & sopitas.

And none but Tenants in Capite were Barons before,Ad sum­mum hono­rem perve­nit ex quo &c. because then, and not before, the word Baro became a word of greater Honour,Against Mr. Petyt, p. 226. that is, appropria­ted to Tenants in Capite or their Peers; So that, before 'twas so appropriated, more were Barons.

[Page 13] What though, in the Letter to the Pope, Jani, &c. p. 244. the Nobiles portuum maris habi­tatores, necnon Clerus & Populus Universus, Against Mr. Petyt, p. 157. are named, yet these troup of words were only to make an Impres­sion upon the Pope, who, good man! knew nothing of the English Consti­tution, or what was done here, but would think all they were assembled in such a Great Council as other Parts of Christendom then had.

I shall not scruple to discover some mysteries to you: The Liberi Homines were Tenants in Capite, or at least, their Retinue and Tenants in Military Service,Glos. p. 26. which were with them at Runnemede. These liberi homines, or Free-men, were the onely men of Honour, Faith, Trust, and Reputation in the Kingdom. These were the Free-men which made such a cry for their Liberties,ib. p. 27. as appears by Mag­na Charta, most of which is onely an abatement of the Rigour, and a Relaxati­on of the feudal Tenures.

Nay,Against Mr. Petyt, p. 39. 'tis to them, these Free-men, onely, that the Grants were made: They that are there mention'd, holding of the King in Fee Farm, Vide King John's Charter. petit Serjean­ty, free or common Socage and Burgage, [Page 14] held not so:Jan. p. 181. But they all held by Knights Service, and so were the King's Barons. Of these Barons, some might be Villains, for that a Tene­ment or Possession neither added to, Glos. p. 10. or detracted from the Person of any man, if free or bond, according to his Blood or Extraction. ib. p. 30. Nay, the Freemen, or Tayns Theyns were anciently no part of the Kingdom, for that was all divided in­to Frank-pledges, of which there was to be a general view in the Sheriff's Tourn; but these Frank-pledges were all pitiful Fellows, bound with Sureties to their good behaviours, ib. p. 31. which the Theyns were not..Which answer his quotation out of Briton. Glos. p. 31. In after times, some might have had particular Charters of Exem­ption, or else, generally such of them as grew to be Great men, were excu­sed.

Whereas Mr. Petyt contends,Against Mr. Petyt, p. 177. that the liberè tenentes de Regno came to the Great Councils, 'tis a giddy Notion. Whoe­ver heard of Tenure of the Kingdom? ‘Though indeed we find in Domesday Book, that such an one holds de Co­mitatu.’

But more directly to the point.Hereford­shire, Castellum de Cliford. Such a Castle est de Regno Angliae non subja­cet [Page 15] alicui Hundredo, neque est in consue­ [...]dine ulla. And, I'll warrant it, he, with his designing Interpretations, Against Mr. Petyt p. 1. will render it, That this held not of the Kingdom, but that it was of it, or in it, and so were the Free Tenants. But, to load this Opinion, according to the lite­ral meaning of the words, Omnes de Regno, p. 187. which sometimes occur, all Copy-bolders, all Tradesmen, all Bondmen and Villains, and all Servants, were Members of Parliament. Yet, there having been no Representatives before 49 H. 3. all the Inhabitants of Cities, Burroughs, hold­ing in Capite, or Chief, and several Towns Corporate, not holding in Chief, came to the great Councils in their own Per­sons, which, some will say, made a great­er Body than the Inferiour Proprietors, and the Representatives of these Pla­ces, and were Persons of as mean con­dition.

For the Lords themselves, they have no better, Against Mr. Petyt. p. 228. nor earlier Commencement than the Commons.

What King Henry a little before his death begun, that is, to call such Earls and Barons,ib. p. 228. quos dignatus est, such as he pleased, Edward the First and his Succes­sors [Page 16] constantly observed. This was the Constitution of the House of Lords, Viz. The rebellious Barons, who fra­med the new Government. p. 210. (the Lords made the Commons, and the King made the Lords.)

The Kings follow'd Montfort's Pat­tern, Against Mr. Petyt, p. 229. for calling the Commons to Parlia­ment. Which yet was not Montfort's alone, for they (the rebellious Barons) fram'd and set up the new Government: p. 210. After which, they sent out Writs in the King's Name, to summon a Parliament, with Commons as well as Noblemen. And yet,Camden, cited p. 226. Cotton, ci­ted p. 228. (according to two Authors, whom I receive) H. 3. set the Pattern, who, after the Victory at Evesham, wisely began in This what his Successors fortunately fi­nish'd: And the King's beginning this, was a Reason why those Kings follow'd Montfort's Pattern: Though 'twas by the Power of Montfort alone, that is, of him and the other Barons, that the Commons were let in to the great Coun­cils, to lessen the strength and power of the great Lords, that is, their own strength and power: yet it was by the King's Authority; though 'twas before the Bat­tel of Evesham, when Montfort prevail'd, [Page 17] yet it was done after, when the King recovered the Regality.

I shall come now to the particular consideration of Jani Anglorum facies nova.

The Author of which sufficiently shews his fantasticalness, in the Title of his Book, Jani Anglorum facies no­va! What, because his Shreds of An­tiquity are thought doubtful, by some taken in one sense, by others in ano­ther, do's he therefore make Janus bi­frons of his Composition? He had as good call it a Spread Eagle, which looks both wayes too: I am sure it suits better with my Book, which is an high Flyer.

His Allusion to Selden's Jani Anglo­rum facies altera, will not justifie him, since that Antiquary was chiefly con­versant in Popular and Lucrative Law.

Besides, the Title imports the Novel­ty of his Opinion, though, perhaps, he would have us believe, that he puts a New Face upon those musty old things, which have been thought to look with a different Aspect. Nor can he shrowd [Page 18] himself under my Title, for mine is an old Face, which has honourable Scars and Flaws in it, and a Professor's Aspect; And they understand not Rai­lery and Figure, who observe not how I expose him by the Allusion.

He will have it, and brings many Arguments,Jan. Angl. &c. p. 22. amongst which, the Judg­ment of a whole Parliament of that famous King Ed. 3. but that is not In­fallible, that the Common Council of the Kingdom, in King John's Charter, is onely a Council for Scutage, and Aid granted by Tenants in Capite. Where­as Aid sometimes signifies such as to be sure is granted by the greatest Council, and therefore does alwayes.Against Jani &c. p. 10, 11, 12. Farther, What need was there to have the Cause of Summons declared, if it were onely about Aids and Escuage, or other ordi­nary business of course: though indeed, whether it was for Aids, or other Bu­siness, might not be known without this Declaration. ib. p. 12.

Lastly, If all Proprietors were Mem­bers of the Great General Council, 'tis strange there should not have been the same care taken that they might be summoned.

[Page 19] Alas! What signifies the Provision of the Common Law?

But he brings an Argument from the Earl of Chester's being a Count Pala­tine, Against Jan. &c. p. 20. and not subject to the Feudal Law; whereas he was a feudal Tenant: Though,Bracton lib. 3. ca. 8. I must confess, the old Do­tard Bracton sayes, Comites Paleys, Counts Palatine, have Regal Jurisdi­ction, salvo dominio Domino Regi sicut Principi, saving to the King his Domi­nion as Prince, not as Lord of the Feud. Besides, in one of the Quota­tions which he brings to prove that the Earl of Chester however came to Parliament,Against Jan. &c. p. 17. he leaves out Laici, be­cause it manifestly destroys his Whimsey: for it shews that all the Laity were Te­nants in Chief, in that they, as a great Council, say, that the Tenants in Chief did owe no Service.

But he has another fantastical No­tion, that this Council in King John's Charter was an ordinary Court. Upon which, he has these Arguments, which I put among his Unintelligible Vagaries, that there was a Court held thrice a year, Against Jan. p. 26. which treated onely of Matters [Page 20] of ordinary Justice, Vid. Jan. &c. unless when 'twas united with the Great Council. And in these two Senses, taken together, was an Ordinary Court, that the Tenants were obliged by their Tenure to be there;Bract. l. 2. c. 16. p. 37. Consensu communi totius Reg­ni introdu­cta. But at the Great Councils were more; for which he cites Bracton, who speaks of several Vnintelligible Businesses for which the Common Consent of the Kingdom was always required.

That to King John's Charter the Liberi Homines totius Regni were Par­ties,Against Jan. &c. p. 5. whereas, in truth, the Great Char­ters were onely the Petitions of the Peo­ple drawn into the form of Charters, as Statutes now are, upon the Petiti­ons of the Commons, drawn into the Form of Statutes, and pass'd, by the Concurrence of the King and Lords.

Since I am fallen into the Learn­ing of Charters, I must inform you, that, though the Charter of H. 3. has the inspeximus of Edward the First, and is enrolled in the 25th of his Reign, in ipsissimis verbis, when 'tis confirm­ed [Page 21] [...] in full Parliament, Per commune assent de tut le Royaume. Rot. Stat. 25 Ed. 1. m. 38. to have been made by the Common Assent of all the Realm, in the time of H. 3. nostre Pere, meaning the Father of Edward the First; and though (as appears in the Statute Roll) the Date and Witnesses were of the time of H. 3. yet,Against Jan. &c. p. 63. this Great Charter was properly the Charter of Ed. 1. or perhaps, rather his Explication or En­largement of that Charter of King John, and H. 3. for we find not the Great Charter, either of that, or King John's Form in any of the Rolls, until the 25th of Ed. 1. and therefore 'twas impossi­ble that any such Charter could be found in the 25th of that King, though he Reign'd so long since, (or indeed, that King John's Charter was made by him.)

And there is Demonstration that 'twas not the Charter of H. 3. in that,Rot. Parl. 15. Ed. 3. N. 150. dor. when 'tis confirm'd in Parliament, in the 15th of Edward the Third, [...] [Page 22] [...],The Great Charter, and the Charter of the Forest, and other Statutes made by our Sovereign Lord the King, and his Proge­nitors, Peers, and the Commons of the Land. Rastal Stat. 15 Ed. 3. c. 1. 'tis declar'd, that 'twas made Per le Roy, Peers, & Commune de la terre, as other Statutes, made afterwards, even as late as Edward the Third, and, I hope, I have satisfi'd every Body, that the Commons, in the sense as then taken, came not to the Great Councils till the 49th of H. 3. Whereas the Charter pretends at the end, to have been made the 9th of that King.

Nay, there is this farther Evidence, that the Charter of Henry the Third was not made in the 9th of Henry the Third, and therefore not till the 25th of Edward the First, though confirmed in the 15th; which is, that Matthew Paris himself, who explains Records better than they can explain him, agrees that 'twas made praesentibus Clero & [...] magnatibus Regionis. Mat. Par. [...]d. Tigur [...], [...] 311. So [...], or besides [...] the order▪ of the [...] [Page 23] de la terre, were the Great men, Tenants in Capite.

The Author, whom I now animad­vert upon, has a Nonsensical Argu­ment, that there were others obliged besides Tenants in Chief, and that were, or had right to be,Not Fact onely. of the Common Council of the Kingdom,Vid. su­pra, cap. 1. though not upon the accounts mentioned in the Charter; As Falcatius de Brent, who, by reason of great Possessions, was to come, etiam non vocatus, and so without the forty dayes Summons re­quired to the purposes there menti­oned.Jan. p. 13.

But this is precariously said. Jan. &c. p. 89. So he would also prove from the Charter of H. 1. that they who were Members of the County Court, were to be summon­ed to the Great Council upon the King's necessary occasions,p. 34. or de arduis. Jani, p. 14. But in this he cheats and abuses his Readers, Against Jan. p. 62. and p. 63. Jan. &c. p. 248. he produces a Statute in the Year 1427, (which falls within the Reign of H. 6.) of the Neighbouring Kingdom of Scot­land, where the Feudal Law, to be sure, had as great force as here, which shews, that the Free Tenants came to [Page 24] their Parliaments in their own Persons. But the Scottish Government neither was, nor is, the English, any more than every like is the same.

He shews us,Jan. &c. p. 214. that the Nobilitas, Po­pulusque minor, was consulted about King Henry the First's Marriage, but he was an Vsurper and a Traitor.

He urges,Jan. &c. p. 241. that Tenure in Capite was pleaded off, as a burden, which would not have been, if they could charge the rest in Parliament; some of which pleaded, that they could be Taxed onely with the Community of the County.

Though he cites an express Record before 49 H. 3. where, besides Tenants in Capite, two others are summoned for every County, to grant a Tax, I an­swer, though the Question is of Fact onely, that is, Whether more than Tenants in Chief ever at any time before 49 H. 3. came to the Great Councils, yet the History of this time and the occasion of this Writ, will give any reasonable man satisfaction why they were summoned, which is, in effect, that they were not summon'd. [Page 25] [...]nd indeed, this is a way of sham­ing a Record, which I earnestly re­ [...]mmend, having often try'd it with [...]ccess; Witness my turning off ano­ [...]er Record with the Authority of [...]atth. Paris. Against Mr. Petyt, p. 183.

Whereas the New Face-maker takes [...]tice of the Complaint in a Parlia­ [...]ent of Henry the Third,Jan. &c. p. 246. that all were [...]ot called according to the Tenor [...]agnae Chartae suae, which he contends [...]wprd [...] be Henry the Third's Charter. And [...]erefore that they must refer them­ [...]lves to the Clause which provides [...]r the Liberties and free Customes, [...]en of the Villae. Henry the Third's Charter was the same with King John's [...]d with Edward the First's;Against Jan. p. 61. by the [...]st of which, the Villae were certainly [...]rovided for: But the Clause ad haben­ [...]m Commune Concilium Regni is one­ [...] in King John's; which is an Argu­ment against me as unintelligible as that [...]agnae Chartae suae, was, of the then [...]ing's Great Charter.

Thus I have taught this New Consti­ [...]tion and Upstart Society those weigh­ [...] Truths, which had never blest the World, but for my painful Search.

(Mr. Speaker,)

That we may not be too much hum­bled upon these Discoveries, we mu [...] consider, that the House of Commo [...] began in the 49th of Henry the Thir [...] whereas the Lords came at the pleasu [...] of that King, and even of the Succe [...]sors of Ed. 1. and so are a much young [...]er House in point of Settlement.

And, that no man may wonder a [...] this my freedom, I must let them kno [...] that I am not of an English Extract [...]on, but, by the Father's side, descend [...]ed from a Noble Poictovin, and an A [...]jovin on the Mothers, or some othe [...] who came in with William the Conque­rour.

Myrmidonum Dolopum ve, aut duri M [...]les Vlissis.

And besides, am a Tenant in Capite, a [...] Head of a Learned Society,Against Mr. Petyt, p. 252. and also de Retinentia Regis, because of a certai [...] Honour under him obtained by a spe­cial Mandamus: Berners dischar­ged from being Knight of the Shire because de Retinentia Regis By reason of which [Page 27] [...] could not by Law have been here, [...]less it had been the King's Preroga­ [...]e, that who he pleased should be of [...] House of Commons, Against Mr. Petyt, p. 249. as well as the [...]use of Lords: And indeed the Law [...] well be dispenc'd with,One Knight for a Coun­ty, &c. na­med to the Sheriff. for the [...] of so much Useful Knowledge, as, have communicated. And thus libe­ [...]i animam meam.

[...]uditum admissi risum teneatis amici!

FINIS.
ADDITIONS Answering …

ADDITIONS Answering the OMISSIONS OF OUR Reverend AUTHOR.

LONDON, Printed for Edward Berry 1681.

ADDITIONS Answering the OMISSIONS, &c.

SInce the Doctor thinks to flourish with some of his frivolous O­missions, like running his Sword [...]hrough me after he had slain me in [...]magination; To shew that I am not [...]uite killed, I shall venture to try the [...]ngth of his new whetted Animad­ [...]erting Weapon, and give him a few [...]ome thrusts in exchange for his in­ [...]ended ones. Because I find him a [...]entle, and easie Foe, I shall advise [...]im like a Friend,

Frange miser Calamos, vigilataque praelia dele.
Your miserable Scribling pray give o're,
With such Polemicks vex the World no more.

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

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

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

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

This consists of two parts; First, That where there was not the consent of a Common-Council of all the Te­nents in chief, the Citizens might of themselves give a Tallage, which is not in dispute between us, but is with admirable ingenuity turned into an assertion,Viz. To such pay­ment as T [...]lage. that Cities and Burroughs were not taxed or assessed towards any payments, but by their own Common-Councils, (which is not to be inferred [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. Jani, &c. p. 26.

This he yields to my hand, that they always did if they would, it seems con­vinced by that Record, which shews that when the Council of the City would not agree to the Sum demanded by the King, 'twas de voluntate omnium Baronum nostrorum Civitatis ejusdem, that the King talliated his Tenents per se, 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.Against Jani, p. 115. & 117. Provisum fuit per Consilium Regis apud Merton, that he should talliate his Demeasns, though this was after King John's Charter, which was intended to restrain the King from levying publick Taxes with­out publick consent; yet it seems to be plain by the Record that the King by the advice of his Privy Council taxed the City of London, even with­out the consent of the Common Coun­cil of his immediate Tenents, whom [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 Demeans 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. Nullum Scutagi­um, &c. only from levying of publick Taxes with­out publick Consent, not to provide about Escuage, or Tallage, which none but his immediate Tenants were liable to. And from hence when prov'd, we might with some more colour and co­herence raise the Consequence that the Common-Council mentioned in King John's Charter was the Great and Com­mon-Council of the Kingdom to all in­tents and purposes. But how that should appear from the mention of Aid, and Escuage only, will be a Question.

'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 M [...] ­lites. and lawful Knights chose, and sworn to execute this business faithfully, Fecerunt venire coram se senescalos Baronum istius co­mitatûs, & de qualibet villâ Dominum vel Ballivum villae & prepositum cum quatuor legalibus hominibus villae, sivae liberis, sive rusticis, who were to swear how many Plough Lands there were in every Town.

[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 Mun [...]; 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 Free-men, 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 [...] Categorical Answer to this memo­ [...]able Record.

IN placito inter Regem & priorem Ecclesiae de Coventre de annua pensione [...] 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 [...]ro domino Rege in narratione sua pro­ [...]onitur. Et dicit quod tenet prioratum praedictum ex fundatione cujusdam Leo­ [...]ici quondam Comitis Cestriae qui prio­ [...]atum praedictum fundavit tempore san­cti Edwardi dudum Regis Angliae pro­genitoris domini Regis nunc per Cartam suam in haec verba.

Anno dominice incarnationis 1043. Ego Leofricus Comes Cestriae Consilio & [...]ssensu Regis qui literas suas infrascriptas sub sigillo misit & testimonio aliorum re­ligiosorum virorum tam laicorum quam Clericorum Ecclesiam Coventre dedicari [...]eci, 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 Iche [...]ton Vl­ston 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. H [...]s 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 [...]men 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, Vniversam 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. 214. 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 rit [...] 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 Fol [...]mote then received proves beyond all dis­pute.

3. If besides Barones, Jani, &c. p. 241. and Milites, we find Libere tenentes, or Fideles in the account of Great Councils before 49 H. 3. we are to suppose,Against Mr. Petyt, p. 112. even with­out Consideration of the Capacious places of their Assembly,The free Tenents in Scotland, and the Possessio­nati in Po­land us'd▪ to be Mem­bers of their great Councils without Represen­tation. 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 scac­cari [...]. 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, amongst other shares holding Centessimam partem Centessimae Sexagess [...]mae partis Baroniae. Penes Rem, Regis in scaccario de Term. Pasche▪ 29 E. 3. Lincoln de Re. Brook tit. exemption. 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, unless the change in 49 H. 3. can be shewn to have been any otherwise than in the bringing in a Representation of them.Vid. the 12th. head.

(7.) By the Charter of H. 1. for the King's dominica necessaria, Jani, &c. p. 34. 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. Besides (according to the terms first agreed on) he received the Confes­sors Laws about this Folcmote. Confutati­on, p. 33.

(9.) Since William the First was no Conqueror, 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, Against Mr. Petyt, p. 226. ib. p. 228. Confutati­on, p. at the right of all other Barons, as Singular Persons, to share in the Le­gislature was preserv'd by the alia illa [...]revia, by which the Representatives [...] the Counties came, and being all the Members of the Great Councils, but Citizens and Burgesses, or all such Ba­ [...]ons as aforesaid, came before the change in their own Persons, and no [...] kind of Members were then Crea­ [...]ed, and yet there was a substantial [...]teration,Against Mr. Petyt, p. 210. a new Government fram'd [...]d set up, this alteration must consist [...] the Commons, or Barones Minores, [...]heir 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 Vniversitas Militiae, or [...] militare servitium debebant, that [...] as Record explains, Ma. P. aris, the [...]ideles besides Milites were Members [...] Parliament, but I may spare farther [...]oof 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, except Barons, both in the Saxon and Norman times; Yet this tenure came in with Will. 1st. by the way you must understand that the Barons were not Tenents in Military Service, Against Mr. Petyt, p. 31. though they held in Capite by Knights Service. And that William the the First made no alteration of the Go­vernment; for Tenents by Military Service, were the only legal men, and the only Members of the Great Counci [...] before.

But as Tenents in Capite, Glos. p. 26. and their Tenents in Military Service were [...] the Great Councils in Person, all the Suitors at the County Court, who wer [...] according to the Charter of H. 1. q [...]liberas habent terras, in each Count [...] respectively, were there in Person a [...] 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 Contro­uersy between us, Against Jani, p. 15. I may make a little [...]port with his Arguing that William 1st. gave whole Counties to his Followers,Against Mr. Petyt, p. 29. [...]nder the word Comitatus, that is as [...]he renders it, all the Lands in the Coun­ties, and yet that besides whole Counties, Glos. p. 8. he gave a great proportion of Lands in them.

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

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

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

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

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

In another place (though he charge [...] upon me what are his own words) h [...] says King John resigned his Crown the 15 [...] ib. p. 22. & 23. [Page 35] of May in the 14th. of his Reign,Thus p. 48. & 49. he charges Mr. Petyt and me for averring that even Servants who are not in a legal sense people of the King­dom were Members of the Great Council. and he granted the great Charter of the Li­berties three years after on the 15. of June in the 17. of his Reign, and there­fore could not resign it in such a Council as was Constituted three years after his Resignation. And '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, or so much as make a man free who was not so before according to his Blood or Extraction. Glos. p. 10.

Though, according to this, one that held of the King in Chief might have been a Subjects Villain, yet none that held a certain Estate of Freehold could be a Villain, because '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 mill [...] 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 H. 3. and if others were after, 'twas by Usurping [Page 38] upon the Rights of Tenents in Capite, ib. p. 210. ib. 42. who, and not others, when the [...] Government was set up, How were Cities and Burroughs holding in Capite Re­presented according to this? And how came they ever to be Represent­ed? began to be Re­presented by two Knights for every Coun­ty, out of their own number, and they at first, that is then, Elected their own Representatives; and yet these Tenents in Capite might be set aside if the King and his Council pleased, nor was any power given to others to chuse till [...]0 H. 6. c. 2. which gave no new power,ib. p. 79. and the Lords depend upon the Kings pleasure.ib. p. 42. Therefore what the design is,ib. p. 227. & 228. and at whose door the crime of it lies, the thing it self speaks, tho I should be silent.

But for fear he should seduce unwary Readers, I must observe his Artifice in imposing upon them the belief that as it has ever since 49▪ H. 3. been at the Kings pleasure that any Lords came to the Great Council; so the King could of right name to the Sheriff what Repre­sentatives for the Counties, Against Mr. Petyt, p 249. Cities and Burroughs he pleas'd, as he observes in the Margent upon a Record▪ 31▪ E. 3. but he is not so Candid to observe, that though indeed at that time there was [Page 39] such a nomination, yet that was no [...] 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. they were impowr'd to consent to what de Communi Consilio contigerit ordinari, p. 246. 27 E. 3. and that such a Council made Laws, as the Statute of the Staple made the 21▪ of E. 3. to which the answer is very ob­vious, that they made only Ordinances, not Laws, and that these were Magna Consilia, taken in a sense totally diffe­rent [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, that though a deter­mination hadde be made against the said Earl Marshall in great Council, Rot. Par. 3. H. 6. n. 12. though he hadde be of full age, that might not disherit him without Authority of Par­liament, these are uncontrollable evi­dences, and proofs against him, let him to save the great Credit of his Learning answer them if he can.

But who is the new Government-Ma­ker, [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, [...]ighly 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,

Nullum tempus occurrit Regi.

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 ill-natur'd to the Government, and so im­potent in its setled anger, as that which some may think to have no other design,Above all vid. Title page Against Mr. Petyt, & p. 81. than that of exposing Mr. Petyt and me, the one for Artifice, [...]nhandsom 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 meers with many so weak that they are discipled by him, to notions of dangerous and pernicious consequence to the State.

—Ridentem dicere verum,
Quis vetat?—

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

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

[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 Versâ, every Great Council, such as that call'd to York, [...]. 1640. is a Parlia­ment.

FINIS.

ERRATA.

PAge 12. l. 6. add Drs. before interdicts. p. 15. in marg. add p. 239. p. 16. l. 11. read vicinata. p. 18. l. 10. r. 25. p. 28. l. 12. r. in Chief. p. 39. l. 5. r. had. p. 47. l. 21. r. induere. l. 23. r. deposceret. p. 82. in marg. dele Shire after Cambridg. p. 100. l. 17. r. Sharnborn. p. 110. in marg. towards the bot­tom, add Domesday. p. 124. l. 6. r. paragio. p. 133. l. 24. add and according to their Chattels. p. 139. add of before a title. p. 151. l. 13. r. conticuissent. p. 156. in marg. r. Lords for Knights. p. 163. l. 2. r. [...]it. l. 10. r. integra. p. 201. l. 8. r. title.

In the Additions.

Page 8. l. 5. r. article. p. 23. in marg. Leges Sancti Ed. p. 25. l. 12. r. of King John's Charter, viz. Tenants, &c. ib. l. 25. r. Nocton.

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