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

THE PREFACE.  
THere was a Book lately published against Mr. Petyt and myself, which not only treats us with Pedantic Scorn, like those that are to Cap the Author within his College: but its seems, to trample on the best Constitution, our Government itself, 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 turned 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. etc. 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 rendered himself famous in his Generation (as if he knew better how to manage a Design than an Argument) passed it about, only to such Hands as were obliged by Promise, if not by Principle, to conceal it.  
But Mr. Petyt, and myself, 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 pronounced, 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's Civility had obliged me to treat him at another Rate than I do; since I delight not i● this way, nor think thereby to please such Readers as I would court to be Judges between us.  
But why should I Apologise for the managing of this Controversy in a way wholly New to me? Since the severest Expressions are but retorted and transcribed 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 Gigantic Endeavour to remove the fixed Stars, the Lords from the Firmament, where each shines in his settled 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 shown 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 Knight's 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 virtue of the New Law imposed upon the People, 
p. 29.  by the Conqueror, 
p. 39  none within the Kingdom, were Freemen or Legal men, but Foreigners, who came in with him, being such as named and chose Juries, and served 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 myself to argue against every one of these: 'Tbe 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 myself, to have gone upon very good Grounds; since, they who oppose them, are forced to substitute, in their Rooms, such pernicious ones, as would render the Foundation both of Lords and Commons, very tottering and unstable.  
Not to mix Lords and Commons together, I will endeavour to do right to the dignity of that Noble Order, and their Interest in Parliament, apart from the other.  
The Constitution of the House of Lords our Antagonist, as I shall show, will not allow to have been settled, 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 Commandment gave not Title, ne changeth not the Inheritance of the Earl Marshal; but if or unless hit had be done by authority of Parliament. And, if Precedency were a settled Inheritance, which could not be altered, but by Act of Parliament, how can a fixed Right of coming to Parliament, be taken away otherwise? Though our Author supposes it to be at the mere 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 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 Heirs of Bigod, and himself, 
Jan. Angl. fancies nova p. 257. & 262.  were Tenants in chief, which, as I thought at least, I showed 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. etc.  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, should be amerced 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 supreme Manner too. Whereas the Commons had of that, only what was needful to maintain their Privileges; 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 joined 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, used to exercise that Power, both in Parliament and out of it; so that wherever they sat, 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 Tenors, and could seize upon their Lands for Contempt of his lawful Power, as the Bishops were sometimes threatened, 
Vid. 4. ●ust.  Ind se capiet ad Baronias su. 8.  
And this is enough against this Author, since he makes the King's Tenants in Capite, to have been all that came to Parliament, even by Representation, till the 8th. of Hen. 6. 
Against Mr. Petyt. p. 42.  which 'tis his settled Design to prove, though sometimes he contradicts himself, and yields, that their Tenants by Knight's Service came too.  
Besides, the genuine Import of the Manner, leads me to this sense, especially, as 'tis joined 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 merely 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. Prince's 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 passed 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 expressed 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 settled Right. And this he makes 11 R. 2. but this the Doctor vouchsafes not to take notice of.  
But how cheap does he make his applauded Reasonings, when he would prove it to be thus, ever to this very time, or the time, of publishing his Libel, because it was in the Reigns of Henry 3. Ed. 1. and his Successors, to the time of that Old Authors Writing; who, if we credit Mr. Camden, wrote before 11 Richard 2. of which he might be assured, by the way of Writing in several Kings Reigns respectively, to which Antiquaries are no Strangers; or else by the Date annexed in the same Hand.  
But to prove that the Learned Clarenceux knew more of these things than this Pretender, I shall show, that Rights were settled 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. etc. 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 Judgement upon his Undertaking: For he says, That by what he calls the New Government, 'twas appointed and ordained, 
ib. p. 110.  not only, that the Kings should call whom they pleased: Which cannot properly be meant of Calling but once by Patent, or Writ, and the giving a Right from thenceforth to come afterwards; because there was and is yet a new Call to every Lord for every distinct Parliament.  
But he is express, 
p. 227.  That all those 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 Monarch's 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 abovementioned, where 'tis taken for granted, that our Kings and Queen had not then such a Prerogative to do wrong.  
If such commandementzes should make right, and yeve title, it were to hard, for then should it seem yat neither of my said Lords, Earls, Marshal and Warwyck, should from this day never sitte● in Parliament without new Commandment.  
To tell the Lords, who are concerned 〈◊〉 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 Discourse of Tactics to the Carthaginian Hero.  
I shall be bold to offer to Consideration, ●herein consists the Right of such a Summons; and I take it to be in the Prescription, though perhaps, none were settled in ●he Right of coming, till the 11th. of R. 2. Yet the time from whence they prescribe might be Earlier; and yet, whether Writ alone, or only as fortified with Prescription, gave the Right, here was what was not still left to Royal Pleasure on●y.  
I conceive, that a Writ of special Summons, of its self, gave no man Right to come always after this as a Lord; for, if it made him not a Lord, it gave him no Right to come to the Lords House as such. And this I take to be evident, from the Records of the several Summons of the tw● Furnivals', 
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 claimed 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 shown; 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. Alban to lay their Prescription only from the time of the Progenitors of E. 1. which might be only from within the time of King John, or from the beginning of his Reign; if but from the later end, ●here were an hundred years for a Prescription.  
(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 Counties to be Grantz, the same with Magnates, as they held in Capite. I am persuaded, in this he taught the most Learned, what fell not within their Knowledge o● Belief before, and for a while, made them quit that piece of Philosophy, Nil admirari, in wondering at the Sagacity of the man. However, by this time 'tis wondrous plain from his Demonstrations; that admit a Difference was made between Lords and Commons, with distinct Power, yet the Commons of Counties, Cities, 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 passed by at the King's Pleasure▪ (though 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 myself receive. He perhaps has set aside this in his own Opinion, but I must confess, I can't embrace his new Sense.  
However, I think it no hard matter to give a natural Answer: For, the Author cited by the faithful Mr. Camden, acquaints us with no other Alteration, than what related purely to Singular Person● ex tanta multitudine Baronum, 
Mat. Par. Quasi su● numero non cadebat.  Who being scarce to be numbered, 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. Alban 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 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.  joined 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, answers 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 settled 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 employed by the word, is the Righ● 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 loved, and cherished.  
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 Lordship's Most humble and obedient Servant,  
●nto a Belief, that he could give all due Satisfaction.  
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 Judgement, not of my Will.  
For myself, admit what I am impeached 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 whispered about, as if I would have this Government to be new modelled, which I utterly abhor, and that more than my Accusers; the Ground of whose Accusations have been chief my devoting myself 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 himself against God's Vicegerent, by Divin● Appointment, put over us, and that 〈◊〉 our great Happiness in all matters or Cause's. There are several Interests in our miserably divided Nation, and wise men may be of each Party; yet, if any such should wish ill to our gracious Monarch, or to Monarchy itself, 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 overweening 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 myself with the greatest Openness and Plainness of Heart.  
The King is justly the Supreme Head and Governor, 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,  
Monarch of Hearts, as of his native Land.  
Long be it e'er 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 obligation 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.  
Quin hoc est quod volumus, quod scilicet Plebiscita, Senatus consulta, caeteraeque Procerum, plebis, aliorumque quorumcunque rogationes, nisi regia insuper authoritate muniantur, non obligent subditos, nec habeant vim Legis; quibus tamen maturè, & ritè preparatis, simul ac Regis accesserit authoritas, legis nomen, formam, & authoritatem protinus accipiunt, incipiuntque statim ac promulgatae fuerint subditos obligare. Cum igitur illa sola censenda sit cujusque rei causa efficiens principalis, & sufficiens, quae per se, & immediatè producit, & in materiam preparatam introducit eam formam, quae illi rei dat nomen & esse, etsi ad productionem ipsius effectûs alia etiam concurrere oporteat, vel antecedere potius, ut praevias dispositiones quò materia ad recipiendam formam ab agente intentam aptior reddatur, omnino constat quotcunque demum ea sint quae ad legem rectè constituendam antecedenter requiruntur voluntatem tamen Principis (ex cujus unius arbitratu & jussione omnes legum rogationes aut ratae habeantur aut irritae) esse solam & adequatam publicarum legum efficientem causam.  
Besides this, I have, in Sincerity, subscribed to his Majesty's Power in Calling, Proroguing, and Dissolving of Parliaments: and, this were enough in relation to our present Controversy, 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 inferior World, while he sits above, in an impeccable, impassable, immortal State. God is not the Author of Evil, nor can he suffer by the Iniquity of M●nkind; And, whatsoever Act precedes 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 Tail Alien, though from a common Person, it would work a Discontinuance; yet, from him it has no Effect, because it would be a wrongful Action: Though he has more Power than any Subject, yet Subjects may be, and are more able to do Mischief.  
And, for a full Proof, what Confidence the Law has always had in the King's doing nothing in his own Person, but what is highly fitting, though an effect should follow upon a rigorous Action of his; as if he should kill an innocent man, with his own hand, there never was any Remedy. And this was taken for Law, as long since, as the Confessor's time. Nor is it to be imagined, that William the First, and his Successors, receded from this Power, how little soever ●hey exerted it.  
In that famous Case where the Confessor, 
Tit. of Honour fo. 525.  impeached 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 replied ●o on the other side, That no Subject aught Bellum contra Regem in appellatione ●uâ de lege vadiare, could not lawfully demand the Battle against the King Appellant, Said in toto se ponere in ●isericordia Regis, but must wholly yield himself to the King's Mercy. In this Case, though the Party might prove himself, against a Subject, to be innocent▪ yet there was no way of Trial against the King, the Appeal being the only Tryal● and that required Battle: but a ma● ought rather to lose his Life, than strike 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 execute the Judgement 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 Dispute between us, can be no more than wh●● Right one Subject, or body of Subjects has to impose upon another. Whether 〈◊〉 ●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 established 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 Supreme Wisdom of the Nation.  
For the Officers, I quarrel not at the Chief, the Order of Bishops, nor yet at the Ecclesiastical Jurisdiction, upon the Reason already given; and, my Proof that they have this by Law, perhaps, is Particular: truly, I conceive it to be a great Mistake, that the Statute which took away the High Commission Court, took away all Ecclesiastical Jurisdiction; for, only the part relating to that Court, is repealed; and then the first of Elizabeth, having revived the 28th. of Hen. 8. the former Power, called Ordinary Power, is left entire, being provided for by the Statute of H. 8. Which, amongst other things, Enacts, That every Archbishop, 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 Archbishop, 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 Layman, I acknowledge, that there is a Divine Right for Church-Officers, 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 followed 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 several 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 governed 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 myself, 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.  
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 itself even such an Antidote as I now offer may be accepted, till Mr. Petyt has fully prepared his Catholicon, which will persuade them who have been imposed upon with Noise and Nonsense, to show their Indignation at their own and their Teacher's Credulity.  
'Twould be Vanity in me, to run the Parallel between our Author's Magisterial 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 acknowledge to have been received from the beneficial Industry of my ever honoured Friend Mr. Petyt; and the true Copies of Doomsday 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 not man need be ashamed of such Assistances.  
Thus, like the old Roman accused of ●nriching himself by ill means, have I ●rought before my Judges, the innocent Instruments 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 Suitor ultra crepidam.  

The INTRODUCTION.  
'TIS, doubtless, a brave thing to attempt heroic Mischief, to insult over the Ruins of a well framed Government, at least, though but in Appearance, to venture upon the Design of altering it, with Jesuitical Boldness, how much soever is wanting of their Subtlety. Fame is as careful to preserve the Memory of him that burned, 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 poisoning those sacred Fountains with his Exotic Drugs. 'Tis not to be doubted, but late Posterity will admire the excellent Composition of that Clyster, whereby he would purge the Body Politic, from the Chronical Disease of Liberty, and oppressing Load of Property.  
Since he has thought fit to Outlaw 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 Crew, were born fight 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 watery Brain, without any substantial Food.  
Indeed, he himself, in great Measure, played the Executioner upon his own Follies, and condemned them for some time to the dark; being, as he says, in his Letter to a noble Peer, Doubtful whether they should be published, as is usually done by unlawful Births, he endeavoured to stifle them; but finding it not improbable, that they might with Justice be represented as dangerous and monstrous, he has let them live, to his Reproach.   

CHAP. I.  
That he mistakes the Question, and contradicts himself, to the yielding the whole Cause; nor, is a greater Friend to Parliaments, than to common Sense.  
IF notwithstanding all this huffing Author's mighty Bustle, I evince,  
1. That he mistakes the Question.  
2. That he contradicts himself, and that sometimes to the yielding up his Cause.  
What will the World say of his Knight Erranty, in Antiquities, and noble Design to rescue the Virgin Truth from the enchanted Castle of groundless and designing Interpretations, 
P. 1. Against Mr. Petyt.  for himself to deflower 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 Controversy 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 fancied way of being represented by such as they never chose, Tenants in Capite, by Military Service.  
Mr. Petyt, in my Judgement, proves that Citizens and Burgesses had Right to come by Representation; and I, that Proprietors of Land, as such, had a Right to come in Person, before that.  
The Fact is used by both of us, as a means to prove the Right: Acts of Parliament, as now called, and King's Charters, as of old, are also insisted upon; and even the Records and Histories produced to vouch the Fact, are, for the most part, yielded us; so that the Question upon positive Laws and upon Testimony, is, either whether Right can arise out of any Fact, or else, it is matter of Right and Reason; what Sense ought to be put on the Words of the Witnesses to the Fact, or any of them, as is made out by an ordinary Instance.  
Suppose a Witness in a Cause, swears to a matter of Fact, and his Credit is not denied, 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, etc. is to be known from the subject matter; yet, 
Against Jan. Angl. facies no●a. p. 1.  for all this, forsooth, The Controversy is of matter of Fact only. Indeed, an Act of 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 its 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 and if they came were Lords (for you must know, no Commons than were ever at the Council) But the King and his Privy- Council, might give them a present Right if they pleased, or withhold from any the Writ of Summons, and deny their Rights in legal Practice, though 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 denied even them who only had that Permission.  
But, 
Against Jan. etc. 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, etc. in making of Laws for the Government of the Kingdom, etc. 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 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, ceased. 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 show) since the time when he places in the King's Tenants in Chief, by Knight's 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 exposed?  
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 etc. 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 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 relation 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 itself, as merely such, made a Question by himself? For, he asks whether any man can forfeit, that is, justly lose his Lands to a Stranger, a Conqueror, that could not pretend Title, but by Violence and Conquest?  
Justly to lose, and to forfeit, must here be reciprocal, to vest a Right in a Conqueror; for, if the Vanquished lose not their Right of Reprisal when 'tis in their Power, 'tis not forfeited, and, if '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 triumphed; but, even in his Sense, neither Fact nor Right is controverted, because, for aught he says here, they might ever have been a third Estate, And, if Burgesses, whom, though Tenants in Capite, I shall take for Commons, (which, to be sure, with him had as great, if not greater Right than any not so holding) could not make that Claim matter of Right, in the 8. of E. 2. but at at least it might be overthrown for ●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 ignorant 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 joined 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 arm 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 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, notwithstanding, the Interdict had asserted, that t●● Commons, such as are now represents by Knights, Citizens, and Burgesse● were always of Right, an essential pa●● of the great Council. I join my Suffrag● and for Proof, allege that King John Charter, does not constitute the Tenant 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 opposed only 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 — which begun, 
David●●  ●nvy at the Praise herself 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 Optant 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 citys ●●eton, to prove, either that every ●s the same with a Burrow, 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 descent, are these, Chescun 〈◊〉 est un Ville, 
Against Jan. p. 7.  mes nemy e converso. ● he translates, Every Burrow is a 〈◊〉, but not e converso. Now, if from ●e infers, that every Town is a Bur●●, his Argument is thus, every Town phurrough, 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.  
Well, but 'tis a Town incorporate 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 Parishen enjoy? 
Against Jan. Anglorum etc. p. 7.  What municipal Laws? Wha● vate Laws and Privileges? Alas! I have no Laws whereby they enjoy 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 ● man's themselves, who all held in 〈◊〉 by Knight's 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 answered, when he make● the Genus to all Divisions under Hundred? So that either a Bull 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 fortescue 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 owes wherein a Village consists, it whol●roves to my mind.  
For the bounds of Villages are not conned within the Circuit of Walls, 
p. 52. b.  Builds, 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 Particule, seem necessary to be added to the ●●er, unless all must; but, even a certain Compass of Fields or of Woods, 〈◊〉 make a Village, without any great Authorities; and, within that space, mig●● be certain free Customs, which the Ow●ers enjoy; nay, though not inhabiting And, for an Evidence of our Author great Love to Truth, he observes 〈◊〉 what is said in the Comment upon th●● very words, which he citys 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 foreign Proof, when in effect this is granted my hand.  
For, 
Against Jan. etc. 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 enlarge that Charter of King John, than confirmed the Charter of H. 3.  
Well, to be sure nothing of Substance 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 〈◊〉 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 Tenants 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 signify inferior 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 settled: but to urge almost he same Argument from other words of his.  
If Hen. the Third's Charter, according to Matthew Paris, 
p. 62.  on whom he ●elies, in nothing differs from King John's, 
As I have seen in several Manuscripts of great Antiquity, (affirming that they were some 2. and some 9 H. 3.) and which the Charter enrolled, 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 Parishen 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 Tenant's 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 Knight's 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 Grandfather, Hen. 2. For, although the King says, 
Ma. Paris 305. 〈…〉  Omnes illas libertates juravimus, which, I take it, referred to the Confirmation 20; yet one of his Councillors 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 Freeholders' to be returned, 
12 Milites, vel legales homines.  out of every County respectively, concerning the Liberties which were in Eng●and, in the time of King Henry, that King's Grandfather.  
The Charter mentioned by our Adversary, was 9 H. 3. And, so after this Trial, the Precept for which, was 〈◊〉, indeed, the actual Confirmation of what they found, or Judgement upon it, was not till two years after: ●ut, than the Clerus & Populus cum Magnatibus: where, by the way, the Populus could not be the Magnates; ●he Inferior Clergy and Laity, with the great ones, go on upon their former Issue, and would give no Supply to the King's Wants, till he would grant Petitas Libertates, the Liberties they had before sued for, or demanded: not barely as a Confirmation of King John's Charter; 
M. Par. Supra p. 305.  but, indeed these very Liberties which they pleaded to have been such in the time of H. 2. The Denial of which, occasioned the fight 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 Privilege 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 returned 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 myself, the Pleasure of observing him more particularly, and if it may be, of knowing him, intus & incute.  
His two main Designs (if he be steady to any, but to contradict right or wrong) are,  
(1.) To prove that William the First took away from the English, their Estates; ●nd as he imposed the Tenors 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, etc.  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 showed his Denial of the Conqueror'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 Follower's,) he would show that this King's Grantees, and that in Capite by Knight's Service, were the only Members of the Great Councils; 
Against Mr. Petyt. p. 2.  and that no others had any Communication in State Affairs, unless they were represented by the Tenant's i● Capite: 
Against Jan. etc. 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 composed 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 Tenement 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 Freeholder, in free or common Socage, might as well have been provided for, as to a Right in coming to Parliament, as a Tenant by Knight's Service, of the King's Tenant in Chief. But, he tells us, than the● must be great men, holding by these Services. But to show 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 Retinue 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. etc. 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 identical Proposition, I hearty 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.  
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 Knight's 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 Knight's Service, who were Homagers and sworn to obey their Lords, as the ordinary Freeholders' 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 Freemen or small Freeholders', 
Glos. p. 31.  to be bound with Sureties to their good Behaviour, in such manner as the Law had required amongst themselves; otherwise, the Government could not secure itself against their Violations of the Laws; they neither meeting in the Great Councils, nor being bound by the Acts of such as met, any more than the Tenants in ancient Demeasn, when they have not been called to great Councils.  
This Author is pleased to say, 
p. 99  It cannot be thought that the King ever wrote to all the Knights and Feudataries of England, 
Pat. 15. Jo. p. 2. M. 2. n. 9 Rex Baronibus militibus & omnibus fidelibus totius Angliae. These Fideles were the King's Tenants in Capite. Glos. p. 16.  to meet in a great Council, etc. 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 convened his Tenants in Chief, 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 antic 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 Freeholders'.  
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▪ etc. 
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, than others were Parties, tho● not in his large Sense. That such there were, we have the Authority of Bra●on, 
Jani Angl. facies nova. p. 1.  as has been before observed, though ●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, Courage 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 granted 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 etc. 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 settled; So that for the future, 
p. 101.  the Summons should be by particular Writs to every great Baron and in general, to all Tenants in Capitel by Writs directed to the King's Sheriff● and Bailiffs.  
Yet for all this plentiful Concessions that here was a Right settled by Law, he had before, as much as in him lay, overthrown it, and destroyed the whol● Foundation of Parliaments, by a wis● Answer to the Record of 8. Ed. 2. wher● St. Alban, as holding the Chief, pleads its ancient Right to come to the grea● Councils; and alleges, that the name● of its Representatives, appear in th● Rolls of Chancery. The Answer per Concilium, is,  
Scrutentur rotuli etc. 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 searched 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.  
Though I am informed by such as ●nnot but know it to be so, 
Against. Jan. etc. p. 111.  that this migh●● man of Letters, has been drudging at records these sixteen years; yet I do not the least, wonder at his Ignorance in ●●em, since he laid not a Foundation at school, 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 aught, Parties, Papers, and records.  
And if he had looked into the Parliament 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 Tries. 
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, with a may be? Or, that when Right is grounded upon any particular Reason or Fact, which only is questioned, 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 searched, farther Trial or the hearing the Parties, Reasons, an● Enforcements of the Fact, were necessary, 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 Bench, & 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.  
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 Parliamentary Summons. And this being prescribed 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 parliament. How can he free himself ●●om contradicting that Way and Man●er, which he says, was settled 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 Superiors 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.  
And thus has our Author, like another Don Quixot, encountering the Windmills, 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 Controversy 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● 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 turned 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 Conqueror, 
p. 39  we are told, he made all the freemen of his Kingdom, Tenants in Military Service: But if he was no Conqueror in this Sense insisted on, then ●ere must be a vast number of Proprietors, that could not be any way bound, but by their own free Act or Consent, express or naturally employed, 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 Vanquished Ancestors?  
I'll take it for granted, King William conquered not all alone, Sampson himself could not have done it, even with his wonder-working Jawbone.  
But pray Mr. Dr. spare me another civil Question; Do not you your sel● make an Usurper of your mighty Conqueror, 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 settled 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 chief assisted by the English, 
p. 54.  and Henry the First, who cajold the great men and the Army, had the same kind of Title with your mighty one. Nor is there weight in the Objection, that there was so small time between the Death of one, and crowning another King, 
p. 60.  that it was not possible for the Clergy, or all the People of England or any that represented the People of England to be at the Consecrations and Coronations. Because whoever has had the Crown set on his Head by them that could meet upon the Occasion, unless there had been a very powerful Interest or Faction against him, has generally been owned for King, and had a tacit universal Consent.  
Besides, all the Nation was not present, when William the first was crowned, any more than they were, when he gained 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 aught 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 Judgement of all the pretended Elections of our English Usurpers, and all other Traitors whatever.  
How easily may this Rule be applied to the first William, 
Against Mr. Petyt. p. 35.  whose Success was facilitated by the Factions among the Saxon and Danish Nobility and People, as our Opponent confesses; besides, the Faction raised by the Pope for him, and by his own Countrymen, who were here before, and could not but be very busy for him: if he acquired the Crown by Election, these things show 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 settled, when a King died, the People voluntarily pitched 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 Principalities 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 its self, having denied Marriage-rights to his Queen, they had none of his Issue to set their Hopes upon, and perhaps they were loath 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 believed, 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 Judgement; and therefore his Recommendation in such a superstitious Age, was to them a kind of Divine Revelation.  
The Norman Prince, 
Abreu. 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 designed by the Confessor or no, is left in Dispute; but that he arrived to his high Trust, by a general Election of those who were able to keep under, 
M. S. ex bib. Domini Wild defuncti.  or satisfy 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 conquered him, perhaps, there would have been a Devolution of a Conquerors 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 Deathbed, being asked 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 possessed not this Honour as a Right of Inheritance, which, here must be meant, as what I had an absolute Property in, and Disposal of. Sed diro inflictu & multâ effusione sanguinis humani perjuro Regi Haroldo abstuli, & interfectis vel fugatis fautoribus ejus dominatui meo subegi.  
But by a direful Conflict, and much effusion of humane Blood, I took it from perjured 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. Edward's 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 Proceed of this Prince to his being crowned, prove his Election; so his Transactions with Harold, show, that he laboured only to have that Power, which, he said, Harold maintained by Perjury.  
Suppose therefore, Harold had not opposed, and without more Turmoils, William had been crowned; had he in this Case been a Conqueror, 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 Senates & 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 the Jussus populi. And this is, in other words of the same Import, expressed 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 Umpire 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 Ministering 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 Battles, 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, occasioned William to refer his Pretence of Right to the Pope's Decision, I shall not judge; but with these Colours of a Title, he lands ●n England, and some say, committed no Acts of Hostility, till his Claim was again denied 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 owed 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, etc. Brevis Relat. de Willielmo 1ᵒ per Sil. Taylor.  that had detained him in Prison. Yet, he would not follow the wholesome Advice of his Brother Gurth, who foretold, that Flight or Death, would be the Reward of his Perjury, while they, fight for their Country, 
M. Par. f. 3. M. West. f. 223.  might expect a better Fate.  
Tired, and his Army scattered, with a bloody though successful Battle against his Brother, and the Norwegian Harold, breathing nothing but Victory; upon News of the Normans coming, he hastens from Stanford Bridge, to Sussex, and nine Miles from Hastings, before he could put his Army into Array, and as some say, before half of it came up, he eagerly 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 itself.  
Many who had true English Blood in ●eir Veins, and were against the Reign ●f a Foreigner, had been labouring 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 therefore, they that engaged in it, and the ●hole City of London, (Army enough 〈◊〉 have drove Duke William to his Country, or his Grave, uncrowned,) ●ame out to meet him, as far as Berkamstead in Hertfordshire, where the fortunate Duke, 
Sim. Dunelmensis. f. 195. sic Hoveden, f. 450.  Foedus poepigit, made a ●eague, or entered into Terms with ●hem, they giving Hostages, for the performing the Fealty or Allegiance, which they promised him; but, like generous Englishmen, who were never ●ood at Treaty, relied, 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.   
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 Nou. and on Christmas, was crowned 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 Tie; 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 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 Judgements.  
The Solemnities which used to be performed by the Archbishop of Canterbury, ●ell to the care of the other Archbishop: ●ome give the reason, because the Pope ●ad declared Stigand, who was then in ●he See of Canterbury, a Schismatic, 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 looked upon William as a bloody man, and an Usurper: 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 gained he being afraid of the name of Tyrant, and desirous to assume the Person of a lawful Prince, entreated to be solemnly consecrated King by Stigand, than Archbishop of Canterbury; Stigand would by no means, lay his hands upon a man, as he said, bloody, and an Invader of another's 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 caused him any Trouble, being mindful of the Check which Stigand gave him, even after London had taken Terms, purposely waved, taking the Crown from one that rivalled the Pope in Spiritual, and him in temporal Power, and had bid open defiance to both. Wherefore, his being crowned by the other Archbishop, 
Et potissimè Stigandum, Bromton fo. 962.  and the Jealousy 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 thorn. fo. 1758.  lest his Authority in England, should unsettle his new got Kingdom, gives a strong Inducement to the Belief of what William Thorn, 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 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.  
thorn gives us a particular Account of Stigand's raising the men of Kent, to ●ight for their old Laws and Liberties, 
thorn. fol. 1786.  which many others, not being Kentish ●en, would not mention, lest their Magnanimity should upbraid the sudden yielding of the rest.  
This I take to have been between October and Christmas, when he was ●rowned; and, that having entered 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 getting of that, he should be able to keep all that Country under. Upon this, Archbishop 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, 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 Tailor of Gavel. p. 167.  in Kent especially, before that time, which they are at pains to show 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 Freemen and Slaves; and therefore, that none of the English, (that is, the People of the Land, which the Law has ever confined to Freeholders', 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, threatened to all in common.  
Nor wants there Authority for the Freedom of all the Kentish-men in the 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 confessed to be true, 30. Ed. 1. in the Title of Villeinage, 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, 
thorn.  made all the Freeholders' 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 advanced, he found himself hemmed 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.  
The Archbishop 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 Liege Lord, if they might enjoy their Liberties and Laws; otherwise, they denounced 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 citys an ancient Authority, which was a Plea, not opposed, and which could not be taken from Sprot, in which he confesses the Substance of this to be contained; and though not elegantly writ, yet with Truth. So that Mr. Camden is on our side, being convinced 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 says, 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 Customs, at first had, and from that time used.  
It seems, in standing up for their own Rights, they reflected upon the rest, as an humble conquered People.  
And indeed, whereas it has passed into a Maxim, Nemo miser nisi comparatus; 
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 incomplete, 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 lie, 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 Customs, than that they were a sturdy People, more than ordinary tenacious of their Rights, 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 Classic Writer has blasted their Credit, I will not say with a contagious Breath) he promised 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 Conqueror, 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 Flemings, 
Against Mr. Petyt. p. 35.  Anjovins, Britain's, 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 gratify only his Normans. Nay, he divided all the Lands of the Kingdom amongst his great Followers: even the Lands of those Normans who had Estates here before.  
But, if, I say, the men of Kent enjoyed their Right, as abovesaid, what Reason, beyond what I have assigned, 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, 
doomsday in Surry, Acstede, Goda mater Heraldi tenuit IRE. In another place there called Soror Regis Edwardi.  but rather Harold was, who was Son to Goda, that King's Sister. Nor could the Confessor and Harold lawfully set the Crown upon his Head, without the Consent of the Kingdom: Nor yet could he gain a Title by Conquest, over those who vielded upon the Terms of enjoying their Laws and Liberties; and, who, unless those Terms had been granted, had both Right and Spirit too to have kept him from Reigning over them.  
Abating the factious conspiring to set him up against Edgar Etheling, who, though he was not, as now the Law is, actual King before Coronation, yet aught to have been crowned, the People had sufficient inducement to choose 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 reproached 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 threatened and molested them from abroad, or that could better secure them from the Tyranny of many Masters at home, and the Distractions, which, in all probability, would arise from their Feuds and Competitions for the Crown; which, every one that could draw the Mobile 〈◊〉 him, would be catching at, till it was placed and settled.  
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 Epithets. 'Twill be said, perhaps, if the Election be void, than 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, than 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 reconciled 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 Superior Lord Acts like a little King over those that are under him, 
Little it seems for the number of his Subjects, not the extent of his Power over them.  and, in things belonging to the Feud, gives Law, even by the very Feudal Right, that is to say, is absolute.  
In another place, Consentire quisque videtur in personâ Domini sui Capitalis prout bodie per Procuratores Comitatûs vel Burgi, 
2 Glos. tit. part.  quos in Parliamentis, Knights and Burgesses, appellamus.  
Every Inferior 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 purchased 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 expired, he does not vouchsafe to inform us, however he yields the Substance of all, in acknowledging, that the superior Lords gave Law, or were absolute, and represented or governed the Tenants in the Legislature, till the 49. H. 3.  
To assume, William was Feudal Tenant to the King of France, and according to the Feudal Law, long after his time King John was summoned to the French Court, to answer for the Death of Arthur of Britain, who was another Feudatory to the French King. William himself, was not only subject to the Feudal Law, but thereby was as much under his Superior Lords despotic Power, in relation to what he got, as the most inferior Tenant: William depended upon that King's Will, his Dominion was forfeitable without any default, he was Leigeman 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 Dependence.   

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, shown from thence.  
BUT since the mention of Jus feodale, as advanced 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 one's 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, derived from the Feudal Law, that the Superior 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 fancied, that the Lords represented their Tenants in the Extraordinary at the great Councils; and by the same reason, the Assertion of a Judge censured 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 citys 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 Ambassadors wherever they come.  
And this could not generally prevail, but from the Authority of Catholic Reason that should require it; but that I do not find, since the Lord may have the Vtile Dominium, which the Feudists speak of, as incident to Feuds, without the despotic Power; and the end or nature of them being answered, 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 Superior. 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, than 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 advanced to an Estate for Life: 
Solet usus fructus constitui in personam tantum. Cujacius de feudis, Tom. 4. fo. 464.  and all this before the year 650, from which time, to Charles the Great, who began to reign in the Year 800, unless one were particularly assigned by the Gift, the Lands descended, 
Craglus, fol. 21.  by right of Inheritance, to all the Sons.  
It's state of Maturity was, when it descended to one, but still there was an Inheritance by the Law of Feuds, before the time of William the First, and above 450 years before the 49th of H. 3.  
And, I would rather believe Cujacius for the Jus Feodale, or the Nature of it, than what we find under the Title Parliament in the Glossary.  
Cujacius defines a Feud, 
Cujacius de feudis, fo. 464. Tom. 4.  Jus praedio alieno in perpetuum utendi fruendi, quod pro beneficio Dominus dat, eâ lege, ut qui accipit sibi fidem & militiae munus, aliudve servitium exhibeat. An Usufructuary Right in another's Land, which the Lord gives for a Benefice, upon condition that the Grantee should be faithful and true to him, and perform Military or other Service.  
This is a perpetual Right, therefore not to be disposed of by the Lord's Will, or the Law which he should give.  
'Tis indeed usufructuary, because the Lord has the Forfeiture and Escheat, according to the Laws settled in any particular place: For, I take it, that in one place they differed 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 says, that amongst the French a Feud implies not juridica potestas, nil commune cum juridica potestate. Which, if (as Jurisdiction is often used, to signify a Power inferiors 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 says 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 Customs.  
And this is to be observed, that the end of raising Feuds has often prevailed to introduce a Custom without any express Law, and beyond the Foreign Law of Feuds.  
(1.) Without express Law, and thus to preserve the Head of a Barony, that was never to be divided; whereas, any other part was often so, in which the Common Law prevailed from the end of raising the Feud, which required 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 Capital 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 Message, which he ought to have in Steinton, with the Appurtenances, as that which belongs to his elder share of the Barony, which was Lambert Scoteny's.  
These surely were Brothers, not Sisters Sons, being of the same Name, and the Claim being immediately from the seizin of Scoteny: and this Claim was allowed, as the Record shows.  
Besides, though '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. 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 die without Heir male, and leaves a Daughter, let her not have her Father's 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 employed by a Feud. 
Against Petyt. p. 31. in margin.  But our Apollo teacheth us, that our ancient Tenors were from Normandy, and that was governed 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 Inferior, 
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 have been) should this Lord have been represented by his Capital Lord there? 
Glos. 2 part. Consentire quisque vid.  Or, admit a Lord there, had no Land, but what he held of a Commoner, as of such an one as Thomas de Furnival, 
Jani Angl. facies nova. p. Sed vide the Record more at large.  who had several very considerable Manors; 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 shown, '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 hotchpotch Glossary, to induce us to the belief of the Fact. But from what Source is this Right derived?   

SECT. 5. An Improvement of the Notion of Jus Feodale.  
THat I may make our mighty man of Letters out of Love with his darling Glossaries, 
2 Part of the Glos. and his own.  I shall observe to him, That, according to that, for the Credit of which he pawns his own Truth, or his Friends, All the Lord's Right of Representing their Tenants in the Great Councils, 
Against Mr. Petyt. p. 31.  is merely Feudal ex ipso jure feodali. But all Feuds were enjoyed under several Military Conditions, or Services. Being then these were the only Feudal Tenors, 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. says, 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 only; Nay, they were never at it: And therefore, no wonder if the Laws were observed by, and exacted upon, 
Against Mr. Petyt. p. 43.  only the Normans themselves.  
For the others could not be bound, and, if they consented to any Charge for Defence of the Government, it could be only 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 mere Benevolence. And there being free and common Socage Tenants before the Norman's Entrance, and since continually, thus it must always have been.    

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

SECT. 1.  
SInce our Tenors, and the manner of holding our Estates, 
Against Mr. Petyt. p. 31.  in every respect, with the Customs incident to those Estates, are said to be brought in by the Conquest: and not only most, but all free Estates must have been feudal; as Knight's Service, which is made the only feudal, was, in the time of William the First, the only free Service. 
ib. p. 39  What I have said of Feuds in the last Chapter, doth directly reach the Controversy 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 itself, 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 Conqueror.  
I hope I shall not seem tedious, though I am long upon this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of a Conquest, that Cornerstone, on which, (if he knows what he does, which I cannot but doubt of sometimes) he Erects a fanciful Scheme of Government. And thus the lofty Fabric 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.  Flemings, Anjovins, Britain's, Poictovins, were all metamorphosed into Normans; 
p. 43.  upon whom only 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 Freemen of the Kingdom, because the Conquest had made all the English Slaves; and the King granted only 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 Knight's Service; these were the men, 
ib. p. 39  the only 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 only 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 only 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 Freeholders' of 40 s. per ann.  
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 only, 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 Knight's Service, have ever been, and still ought to be, the only 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 Public,) But, I shall think our Government will have been finely brought to Bed by his Midwifery, when such a monstrous brat is owned by it. 
Vid. Letter to the Earl of S.   
But, if King William, the Master-builder, refused what this Author would make the Head of the Corner; and was not so absolute a Conqueror, as to leave the English neither Estates nor Fortunes, 
Against Mr. P. p. 43. ib. p. 179.  what becomes of his Airy Ambuscade?  
He has the Confidence to refer to Doomsday Book in every County, for this Fiction, and that will satisfy a man wilfully blind, 
p. 176.  that William the Conqueror divided all the Land in England amongst his great Followers. Now, what if I show out of himself, and this book of Judgements 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 Freemen, who held not by Knight's Service, which he settled over all, jure haereditario; We generally shall find, that there was no change of the Manner 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, etc. 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 Doomsday 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 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 used there than Surnames.  
But, I thank him, he has given me an easy Task, to show, that in spite of his Conjecture, this great Survey demonstrates that there were Proprietors of Englishmen, 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 conquered 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 Freeholders', who enjoyed their Lands of the Seizing of their Ancestors, 
Against Mr. P.  their own, 
p. 34.  or theirs of whom they purchased, 
Against Jan. etc. p. 1.  from before the counterfeit date of the English Slavery what shall we judge of his Vagaries, 
p. 43. Not directly reach the Controversy.  which he himself owns to be impertinent?  
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, Surnames 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, 
doomsday. He was not Tainus Regis.  as may be found under the Title, Terra Hugonis de Port: many Manors he had; and as appears in Hampshire, he had at least two Manors, 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 Surname or Addition.  
Whereas, 
Camden's Remains. p. 136.  if we believe the great Antiquary Mr. Camden, Surnames were not settled 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, 
Camden's Remains. p. 136.  who was all Frenchified. He, to be sure, had some Lands within the Kingdom of England, 
p. 176.  which he enjoyed 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.  
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. ulviet the Hunter holds Riple.  
14. Agemund holds half an hide in Totintone.  
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 Manor.  
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 hid in Esselei.  
26. Aluric holds one hid in Einforde.  
27. Aluric holds a Rood and an half in Vtefel. 
Leving and Chetel held it. Aluric purchased it in the time of King William.   
28. Aluric holds one hid 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: This Manor 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.   

Berkshire. 
Berroche scire.   
1. Walter holds one hid in Cheneteberie which King Edward gave his Ancestors. 
De firma suam & solut. ab omni consuetud. propter Forestam custodiend. excepta forisfactura Regis, etc.   
2. Edward holds one hid in Coserige, he held in Alodium of King Edward.  
3. Alward the Goldsmith holds Sotesbroc. 
Pater ejus tenuit de Regina Edw.   
4. Eldeva a Freewoman, holds in Henret one hid 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.  
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 Good holds one Hid 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 Hid 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.  
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.  
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.  
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 Goldsmith, holds one Hide in Norton, 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. 
Snotingham-scire.   
2. Elwin and ulviet held one Carve of Land in Osbernestune, now Swan and ulviet 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. uctred held several Lands in the time of King Edward, as in the time of William the First. Besides several dispossessed, who have their Titles allowed.   

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 hid 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 Jewel, 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. doomsday.  (of thirty described in doomsday) besides others left ●ut of this Survey, as Northumberland, Westmoreland, the Bishopric of Durham, and Lancashire, except some part of it be taken into Yorkshire or Cheshire, the City of Oxford, and the Shire, which held Lands in their Public Capacity several omitted through neglect, and others on purpose, as I before observed, there are above one hundred an● eighty Freeholders', who derived no● under King William's Title; and besides the Generality, whose Titles are not expressed, 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 asked, 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. etc. p. 15.   
But this is his Demonstration.  
In Domesday-Book, after 'tis said what belongs to the Bishopric, 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 ●●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 beatest part of Shropshire was given to Ro●r de Montegomerico, 
Against Mr. Petyt. p. 29. Scyropesberie.  doomsday says, ●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 Manner. quae Rex ipse tenebat, and the ●hole Power or Right to Govern it, which King Edward had there, with ●●elve Manors which the King himself ●eld: And this was all the Land that was given, but could not be the greatest part of the County.  
Farther, 
Cheshire. doomsday.  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 conquered ●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 show that the Earl had ●ot the whole County, 'tis manifest, there were many great Proprietors there as Earl Robert, who held Westone; Richard 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 English Nation, for so, doubtless, h● has rendered 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 show, that they claimed their Rights, and had them allowed according to the Ancient 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● was preserved, were continued after the reputed Conquest: thus in the Burrow of Wallingford in Berkshire, 
doomsday.  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.  
'Tis to be observed, that where the County or Hundred attests any man's Plea or Title, this is a solemn Judgement in doomsday 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 Manors 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 Trial in this Cou●ty between William de Chornet, 
In Forcingbridge Hundr. in Clating.  and Picot the Sheriff of Cambridgeshire, is very remarkable, In isto Hundr. & in isto Manner, tenet Picot 2 Virgat. & dimidium & istam terram calumniatur Willielmus de Chornet, dicens pertinere ad Manner. 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 Manor, Picot holds two Rood and a half of Land; that Land, William de Chornet claims, saying, that it belongs to the Manor 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 inferior People, and of Bailiffs, who will not defend by Oath, or by God's Judgement, (which I take here, not to be the Ordail, but the Battle, as we find the Trials, 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 Ferrer, Henry de Ferrer being disseized in that County; and 'tis likely, both claimed 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 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 Quitrent: 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 Conqueror came not at all to out those who had right Possession, 
Should be rightful▪  but to out those, which by their wrong doing, had occupied any Land in Disinheritance of the King and of his Crown; (that is, such Land as was forfeited to the Crown, by their being in Arms against the King) upon which, 
p. 29.  he says, that this Judge spoke out of Design, and studied, and knew only popular and lucrative Law, and not the Constitution of the Nation before his own time.  
'Tis manifest, that this free Censurer, studies only parasitical Law, and that if he were acquainted with doomsday 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 Swanborns, 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 forfeited to the King; and this was the way of Expression: accordingly in the Active, we find in Norfolk, Earl Ralf held such Lands, Quando se forisfecit. But more particularly, in Cambridgeshire; in Wardune, Hardwin holds of Richard; this did not belong to Richard's Ancestor, but Ralf Waders held it, Die quo deliquit contra Regem, that day on which he was in Arms or Rebellion, offended against the King, and so forfeited; whereas, otherwise it had continued with him: but this compared with Indulphus the than King's Secretary, makes a full proof.  
earl 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, justify 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 Seen is joined to another, they refute the Truth. And that which added to the Heap of the Calamity of Croyland, was the cruel beheading of earl Walden of Croyland, who was very kind to all the Religions, and was chief the best and most worthy Friend to the Monastery of Croyland; and although Archbishop 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 Huntingdon, 
According to our Author, he had all the Lands of these Counties, whereas the King had some.  especially, the Anjovin Earl 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 martyred at Winchester, the day before the Kalends.  
Here we see they were forced 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 Undertake, 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 has returned to the purpose) because he tells us, Sharnburn's name is not to be found in doomsday 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 Mandate, 
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 Manor, 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 Freeman held Sisland within his Bailiwick, only for a Manor, and two Carus of Land.  
Now, 'tis very obvious, that there were great Proprietors, whose Christian Names only, were mentioned in doomsday 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 Surname 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 scorned to yield to the Conqueror, the Castellans of Hereford, and Richard Scrob, often wasted; but, as often as they f●ll upon him, they lost many of their Soldiers and Tenants by Knight's 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 King to Scotland; but if the Dr. finds him by this Addition in doomsday book, I will allow him to be a man of a very sagacious Invention. 
p. 26.   
4. We find whole Counties left out of doomsday 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 Earl 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 Mandate; 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. etc. p. 19   
Can any man forfeit his Lands to a Stranger, a Conqueror, that could not pretend Title, but by Violence and Conquest? As if a Conqueror could not make what he pleased a Forfeiture, and were not the more likely to use Rigour, for being a Stranger, having no Ties of Familiarity or Blood: besides will not a Conqueror, pretending an Hereditary Right make them who opposed it, forfeit? 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 Domesday-book.  
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 ●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, sworn 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 Whimsies, That under the Title of Terra Tainorum Regis, such as he will tell us, held by Barony, we find several men holding in Alodium of the Seizing 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 Freemen there, 
ib. p. 30.  or Tains, Thegnes, which are said to possess Manors Towns, or great parcels of Towns; ver● many whereof, are found in the Counties 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 other Thayns, in the time of King Edward; s● that an ordinary Mass Priest was a Thay●● So ten Thayns held but one Manor, 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 show some of the vast number of Knights, who held of Subjects. I purposely, as elsewhere, leave out the Church, with its 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.  
Robert de Ricarvele ten  
Richard the Son of William, holds fifteen Knights Fees of Richer de Aquilâ.  
In Cornwall, 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 Gloucester, 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. etc.   
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 host remanserit, & dominus ejus pro eo alium duxerit 40. solidos Domino 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 called out, by his Writ, stayed 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 Assize, and the Statute of Winchester, this only adds a particular Penalty; all which together, 
Animad. on ●an. etc. so. 17.  esp●ially Domesday-book, manifestly contradict his Legendary Tales, about King William's governing the Nation as a Conqueror. 
Against Mr. Petyt, p. 29.   
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 proved 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 doomsday book, I shall produce a Record, as late as the 26. Hen. 3. which shows, 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 Conqueror.  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 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, etc.) 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, etc. 
The King to the Barons: We command you, that by occasion of the Rent of Serjanties, assessest by Robert Passelewe, you do not distrain Jacob de Archaungere for two Marks and an half, for the Tenement which he holds of us by Serjanty in Archamgere in the County of Southampton, by the Charter of the Blessed King Edward, to the Ancestors of this Jacob; but for ever free the said Jacob from the foresaid two Marks and an half; because we have confirmed the Charter of the forenamed St. Edward, and will have it inviolably observed.  
Here is an inspeximus, in effect, of the Confessor's Charter, and the Confirmation lies in the Judgement, that this was that King's Charter.  
Whether the Serjanty here mentioned 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, etc. 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 than was no Tenure from any Reservation, but only 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 Tenors, 
Against Petit. p. 31.  and the manner of holding our Estates, in every respect, from Normandy, brought in by the Conqueror. 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 Frenchman, what was unjustly taken from any Englishman.  
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 reduced the Bishoprics and great Abbeys 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 countrymen's Arms, to represent them as great as might be in the number of their Slaves; and to have a whole Nation of them, is, doubtless, a glorious thing in the Doctor's eye.  
And, with this Poictovin may be joined honest Knighton, 
Knighton, p. 2343. lib. 2. cap. 2.  who says, 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 remained in Offices, under the hope of having some, (as their Offices might enable them to purchase.  
Here some of the Normans were forced 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 supposed Conquest.  
BUT, besides the uncontrollable Authority of Domesday-book, and the Testimony of Authors, well backed 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 governed not as a Conqueror. He may know that there were such men as Sokemanni, whose Lands were partible, and who held not by Knight's Service. Whereas King William granted out the whole Kingdom, as the Doctor fond imagines, by Knight's 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 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 altered) and he granted it out, to hold by Knight's Service: how could a Custom prevail to alter this Tenure, contrary to the very Grant? If they could produce their Deeds, they showed themselves to be Tenants by Knight's 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 Premises 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 died in the Wars, was to be divided among his Heirs. And surely, the Law does not suppose that they must always be female Heirs.  
Such as died in the Wars, who were Tenants by Knight's Service, according to our Author's 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, than 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 derived 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 Knight's Service. Nay, the second part of the Glossary, which the Dr. invidiously imputes to Sir Henry Spelman, tells us, that though William was no Conqueror, yet he divided out, and disposed of all the Land to his great men: 
Against Jan. etc. 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 inferred, 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 Conqueror) the Dr. left out, either as being ashamed of it, being 'tis little less than a Contradiction, to say, a man was no Conqueror, and yet seized upon all the Lands of the Kingdom, and forced them to submit to such Seizure; so that he conquered the Land: or, because it contradicts his Notion of William's being a Conqueror; 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 its Credit, tells us a formal Story; the Attestation to which, from outward Circumstances, I never thought it worth the while to examine, since I have so much Reason from within itself, 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 observed 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 Knight's 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 Knight's Service used to descend.  
Here the Descent of Knight's Service is the same with Descent at the Common Law, which was to the Eldest; and this is opposed 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 owned 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 Freemen; but, all the Freemen 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 enforced, if William had been a Conqueror in the Sense strove for, as disseizing all the English, and making Grants of their Lands to the Normans, and that to hold by Knight's Service; and all the Normans, both they who were here before William's Entrance (if any such had any shares allowed 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 Freemen. How came there to be such a Race of lawless Freemen, 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 Conqueror? 
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, supposed to have been established 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 doomsday book, 
doomsday.  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 fond 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 shows, that the English had shares as well as others; but, here being the Vicecomites before Barones, I should vehemently suspect, That the Freeholders' of the County were meant. At least, 
Carta Antiqua n. 11.  we find the ordinary Freeholders', 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 Tenors 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 Freeholders', English as well as French, and these were such as were the Curia Baronum, where Tenants in free and common Socage, were Suitors as well as such as held by Knight's Service.  
Willielmus, Comes Gloucestriae, omnibus Baronibus, & hominibus suis Francis & Anglis, atque Walensibus.  
'Tis not improbable that the Welsh, 
Vid. Tailors Hist. of Gavelkind. Jani Angl. p. 41.  which were some of his Tenants, were then all Socagers: but then the Codex Roffensis, shows 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 show at large, that others, besides Tenants by Knight's Service, served on Juries, etc.  
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 swallowed 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 time, the French, eo nomine, will not be found distinguished; but, if however, the Tenants in Capite, or such as were their Tenants by Knight's 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 its self, when the Balance 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 itself, upon the Success of their Arms, 16 of King John.   

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

SECT. 1.  
I know but of two Mediums used by the Dr. which look like Arguments, to prove that the Tenants in Capite, by Military Service, were the only Nobility, or the only persons which composed the Great Councils.  
1. The Grand Charter of William the First.  
2. That of King John.  
1. He insists upon two Branches of the first Charter.  
Volumus etiam ac firmiter praecipimus & concedimus, 
Vid. Jani Anglorum facies nova p. 22.  ut omnes liberi homines totius Monarchiae regni nostri praedicti habeant & teneant terras suas & possessiones suas bene & in pace liberè ab omni exactione injusta, 
Against Mr. Petyt. p. 37.  & ab omni tallagio; ita quod nihil ab eis exigatur vel capiatur, nisi servitium suum liberum, quod de jure nobis facere debent, & facere tenentur, & prout statutum est eyes, & 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 Freemen were Tenants in Military Service; that these were the only legal men, etc. Whereas, if the Division had not made a Difference in his partial Judgement, 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 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 fort in Ballivis suis subitò emerserit, statim pulsatis campanis, quod Anglicè vocant MOTBEL, convocare omnes & universos quod Anglicè dicunt Folcmote, Vocatio & Congregatio populorum & gentium omnium, qui ibi omnes convenire debent, & universi qui sub protectione & pace Domini Regis degunt, & consistunt in regno predicto, & ibi providere debent indemnitatibus Coronae regni hujus per Commune Concilium, & ibi providendum est ad insolentiam malefactorum reprimendam ad utilitatem regni. Statutum est enim quod ibi debent populi omnes, & gentes universae, singulis annis semel in anno convenire, scilicet in Capite, Kal. Maii, & se fide, & Sacramento non fracto, ibi in unum & simul confederare, & consolidare, 
So William's Law.  sicut conjurati fratres, ad defendendum regnum contra alienigenas, & contra inimicos, una cum Domino suo rege, & terras, & honores illius omni fidelitate cum eo servare, & quod illi ut Domino suo regi intra & extra regnum universum Britanniae fideles esse volunt. Ita debent facere omnes Principes, & Comites, & simul jurare coram Episcopis regni in Folcmote; & similiter omnes Proceres regni, & Milites, & liberi homines universi totius regni Britanniae, facere debent in pleno Folcmote fidelitatem Domino Regi, ut praedictum est, coram Episcopis regni, etc. 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 enclosed and walled about, and in Castles, the same Dignity, Power, and Manner, under the King's Sheriff, throughout the Realm: for, they ought inviolably, and without Fraud or Delay, by all means, to their Power, to keep the Laws, Liberties, Rights, Peace of the King, and the just and ancient Customs of the Kingdom, approved of by their good Predecessors. But when any thing unexpected, or doubtful, happens to fall out of a sudden, within their Bailiwicks, against the Kingdom, or against the Crown of our Lord the King, they ought presently, by ringing of the Bells, which in English they call MOTBEL, to call together all the People, which in English is called the Folkmote; that is, the calling together, and Assembly of all the People and Countries, because all aught to meet there: and all who live under the Protection, and Peace of our Lord the King, and live in the said Kingdom. And there they ought to take 〈◊〉 for the Indemnity of the Crown of this Kingdom, by Common-Council▪ And there Provision is to be made to repress the Insolence of Malefactors, for the good of the Kingdom. For, it was enacted, that there all People and Counties should meet, every year, once a year, to wit in the beginning of the Kalends of May, and there to confederate and consolidate themselves, 
Sicut Conjurati fratres.  with an inviolable Oath and Faith, as sworn Brethren to defend the Kingdom against Foreigners, and against Enemies, together with their Lord the King, and to keep his Lands and Honours with all Faithfulness; and that they will be faithful to him, as to their Lord, both within and without the Realm of Britain. So ought all the Princes and Earls to do, and also to swear before the Bishops of the Kingdom in the Folkmote, and also, all the Peers of the Kingdom, and the Knights and all the Freemen of the whole Kingdom of Britain, aught, as is aforesaid, to swear Fealty to their Lord the King, in full Folkmote, before the Bishops of the Kingdom. 〈…〉 Freemen of the whole 〈◊〉, aught, 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 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 expressed.  
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 privatemen, 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 Knight's Service, for they are distinguished into Principes, Comites, Proceres, Milites, & liberi homines universi totius regni. And 'tis not to be argued, that they were Tenants by Knight's 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 Knight's Service, of a chatel.  
If our Disputant were as conversant in Antiquity, as he pretends, or as faithful as he ought to be, and have left off his Designs, he would have taken notice of the Assize of Arms, in Henry the Second time, which confirms my Sense of the former Laws.  
Quicunque habet foedum unius militis habeat loricam & cassidem & clypeum & lanceam & omnis miles habeat tot loricas & cassides, 
Hoveden.  & clypeos et lanceas quot habuerit foeda Militum in Dominico suo quicunque liber laicus habuerit in Catallo, vel in redditu ad valentiam 16 Marcarum habeat loricam et cassidem et clypeum et lanceam quicunque liber laicus habuerit in Catallo ad valentiam 10 Marcarum habeat halbergellum et capelet ferri et lanceam. Et omnes Burgenses et tota communia liberorum hominum habeant Wanbais et capelet ferri et lanceam: et unusquisque juret quod infra festum Sancti Hillarii haec arma habebit, et domino Regi, scilicet Henrico, filio Matildis Imperatricis, fidem portabit, et haec Arma in suo servitio tenebit secundum praeceptum suum et ad fidem Domini Regis et Regni sui. Whoever has one Knights Fee, let him have an Habergeon and Buckler and Lance, and let every Knight have so many Habergeons and Bucklers and Lances, as he has Knights Fees in his Demeasn, or under him. Whatever Free Layman has in Chatells, to the value of fifteen Marks, let him have an Habergeon and Buckler, and Lance. Whatever Free Layman has in Chatells, to the value of 10 Marks, let him have an Halberd and Capelet of Iron; and let all Inhabitants of Towns, Cities, Burroughs, and all the Commonalty of Freemen, 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 Liege 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 Knight's Service? Agreeable to this, one of the Enquirers upon the Statute of Winchester, 34 Ed. 1. is, If they have Weapons in their Houses according to the Quality of their Lands and Goods, for maintenance of the Peace, according to the Statute.  
Our Author, 
p. 1.  who has an admirable Faculty of rescuing these sacred things, from groundless and designing Interpretations, would make the solemn Assembly in the Folkmote, 
In Folcmoto semel quotannis sub initio Kalendarum Maii (tanquam in annuo Parliamento) convenere Regni Principes tam Episcopi, quam Magistratus Liberi homines.  no more than an ordinary County Court, and is pleased to put a 'Slight upon the Authority of the true Sir Henry Spelman, who rightly takes it for a Great Council.  
And the new convincing Reason for the former Sense, 
Glos. tit. Geniotum.  is, because the Court, where Causes were determined before the King's Provost or Officer, 
New Glos. p. 19  is called Folkmote too; but, pray why is not this the great Folkmote? And why may we not from hence take the Platform of the Great Councils in these Times, and consequently, of such as King William confirmed, together with the Laws of the Confessor.  
Was an ordinary County Court, in time of War or Danger, to act as a Council, in providing for the Safety of the Crown and other things, for the profit of the Kingdom? And were the Bishops of such a spiritual Nature, that they could animate the whole Kingdom, as the Soul does the Body, and be all at the same time in each distinct County of England? 
Jani Angl. facies nova. p. 34.  This clears, beyond Exception, the Charter of Henry the First, which provides for the Assembly of the Counties and Hundreds.  
If he had looked but a little farther, the 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 Turn, 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, etc.  
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 Freemen of the Kingdom to have been Tenants by Knight's Service, was in Confirmation of the Confessor's Laws, and that granted to those who had lived under them, and knew the Benefit of defending themselves and their Properties in the Great Councils, and the Nation too, there, or by their Arms elsewhere, without out trusting the manage of all, to such Thayns as held immediately of the King. Nor were they then likely to quit their former Advantages, when as appears by the Story, they were in a probable Condition of gaining more, if they would: for, the English had got together, by the Encouragement of Abbot Fretherick, Exercitum numerosum & fortissimum, a numerous and most potent Army: and in their Head, was he who was the only Heir to the Crown, and that a Title above the Confessor. Upon this, Prudentiâ feliciter eruditus, having the Happiness to follow his Interest, and comply with the Occasion, he granted St. Edward's Laws, with some Additions indeed, but not with such as would defeat the whole. And I affirm it, that though in his Additions he provides about the Tenors, or other matters of his then or future Tenants, yet there is not any thing which creates a feud over the whole Kingdom.  
Indeed, the Dr. who understands not, for it was beyond his Sphere, that Service laid either by Common or Statute Law upon all free Lands, such as before the Conquest, and since, the Burgh-bote, the Bridge-bote, and the Expeditio; the last of which, we have been disputing of, under the Law of Arms, is a Service but no Tenure, 
Tit. Hon.  as Mr. Selden has rightly shown, would infer that, because the Conqueror 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, though it implies not his raising Tenors 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. etc. 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 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 practice from the Reign of William the First, inclusively downwards, evinces, that they who composed the Great Council, had maintained their Right, ad habendum commune Concilium regni, uninterrupted: for a general proof of which, the Authority of Bracton was used, which shows, that besides such Payments as lay upon the King's Tenants in Capite, or had their Rise from Custom, there were other introduced by the Common Consent of the whole Kingdom; whence 'tis easy 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, etc. p 1.   
Though there is a general Reference to all the constituent parts of those August Assemblies, and to be sure, nothing to prove that Tenants in Capite were the only Members of them; yet, what others have thereby Right ad habendum Commune Consilium Regni, is not expressed, how strongly soever it may be employed from the words, even without the Interpretation of practice. That others had Right, is undeniable, from the words, and 'tis as clear from practice, 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 shows, that the manner is mentioned only in Relation to the form of an ordinary Curia Regis, as I show the Council of Tenants to have been.  
The words upon which our Dispute is, are these;  
Nullum Scutagium, vel auxilium, 
Mat. Paris fol. 257.  ponam in Regno nostro nisi per Commune Consilium regni nostri, nisi ad Corpus nostrum redimendum, & ad primogenitum filium nostrum militem faciendum, & ad primogenitam filiam nostram semel maritandam. Et ad hoc non fiet nisi rationabile auxilium. Simili modo fiat de auxiliis de Civitate Londinensi & Civitas Londoniensis, habeat omnes antiquas Libertates & Liberas consuetudines suas tam per terras quum per aquas. Praeterea volumus & concedimus quod omnes aliae Civitates, & Burgi & Villae, & Barones de quinque portubus, & omnes portus habeant omnes Libertates, & omnes liberas consuetudines suas, & ad habendum Commune Concilium Regni de auxiliis assidendis, aliter quam in Tribus casibus praedictis: & de Scutagiis assidendis submoneri faciemus Archiepiscopos, Episcopos, Abbates, Comites, & majores Barones Regni sigillatim per literas nostras, & praeterea faciemus submoneri in generali per Vicecomites & Ballivos nostros, omnes alios qui in Capite tenent de nobis, ad certum diem scilicet ad terminum quadraginta dierum ad minus, & ad certum locum in omnibus literis submonitionis illius causam submonitionis illius exponemus, & sic factâ submonitione negotium procedat ad diem assignatum, secundum Consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint.  
My Inference from hence, as I find Et de Scutagiis assidendis, divided in a distinct period from what went before; the Dr. how foul soever his Reflection of New-face-Maker is, 
Against Jani etc. p. 3.  has rendered not unfairly; viz. That the City of London, all Cities, Burgs, Parishes, or Townships, that is the Uillani, their Inhabitants, the Baroons of Freemen 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 etc. p. 60.  that no man but myself could ever have thought of them, appears, in that he, or they who Midwived— 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 easy 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 Honour Castle or Manor, etc. But of the King as of the Crown.  as of his Crown, or in Chief; and this some would rather have effected, than that the Commons of England should be thought to have had any Right affirmed 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, Blessed, the World, may well be gathered 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 Judgement, 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 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 reserved to others in the general provision for all their Liberties and free Customs; 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 think that, admitting ad habendum Commune Consilium Regni, be there appropriated to the King's Tenants in Chief, yet the Aid and Escuage they are impower'd to assess, must be such as concerned them only. 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, aught to be joined to the Liberties and free Customs of the whole Nation, reserved by King John's Charter, than that darling Notion of a Parliament of the King's Tenants only, (no more to be proved 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.  etc. this of enjoying a Right of being of, or constituting the Common Council of the Kingdom was one of them, any otherwise than from the express words of the Charter: nor could I justly be blamed, 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 preserved to them by it, and is confirmed by the Charter of H. 3. c. 9 Since in all men's Logic, but the Dr's, the Argument is to be laid down before it can be made good, and the thing to be proved here is but the minor of a Syllogism.  
Which Argument being founded upon Fact, which the Dr. would have to be the only Controversy between us, 
p. 1.  I may wave for a while, and yet there's no doubt but I prove a Right, if I show, 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. etc. 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 show the likeness, I hope 'twill qualify 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 only.  
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 entire by itself, 
The hand-writing of E▪ MS. peves Dom. Petyt.  as the Lord Cook citys 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 contained 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 disjoined from ad habendum Commune Concilium Regni, aliter quam in tribus casibus praedictis.  
And if so, than 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 ancient Law, as it was in the time of H. 2. whose Laws, both Charters, that were in nullo dissimiles, reinforced.  
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 expressed 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, compared 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, that the Great Charter commonly attributed to H. 3. was none of his, but properly the Charter of E. 1. But when he says 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 spoiled 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. etc. p. 64.  as the Dr. contends, There is no provision made for any Summons to Great Councils, or Parliaments, in the Charter confirmed 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 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 joined with the Customs, in the several parts of the Kingdom, and so that of being of, or constituting the great Council, is expressed 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 doubtful, 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, though 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.  expressed, 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 practice in the time of H. 2. was to raise Escuage, was the only Common Council of 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 Whimsy, that it deserves no answer, though it be patronised 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 Freemen of the Kingdom, till 49 H. 3. But it seems, others had then a general Enfranchisement procured 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, confirmed in Parliament, 2 H. 3. which was but 3 years after the making of King John's Charter; and in the Magna Charta, confirmed 9 H. 3. which was but ten years after the making of King 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, confirmed 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 referred to the ancient course of Law, as 'twas in the time of H. 2. whose Laws in general, were then intended to be confirmed. 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 Archbishops, Bishops, Abbots, Priors, Earls, Barons, Knights, Freeholders', and all of the Kingdom, are mentioned, as granting to the Crown, a 15th of all their movable Goods, and these that granted the Subsidy, 
Register f. 175.  in the old Register of Writs, an Authority uncontrollable, 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 advised the arduis negotiis regni, and consented to what passed into a Law. Wherefore, 
Against Jan. etc. p. 13.  ' 'tis strange there should not have been the same care taken that they might have their Rights in Council settled, as well as their Summons to it: but if this Charter settled no other Right than this of granting Taxes, Quere, What other power the Great Councils have now, by our Author's Principles? For, admit that by the New Government, which, he says, was framed and set up in the 49th of Hen. 3. a Right of coming to the Great Council, was given to a body of men, who before that had none; yet there was no additional power given to the Council itself, that he or any man can show.  
Because I would encounter the whole Force which they raise by colour of this Charter, I addressed myself chief to the proving, that, admitting that Et ad habendum commune consilium Regni aliter quam, aught to be joined, 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 concerned Tenants in Chief only.  
That this must be thus confined, is proved.  
(I.) Because there were Majores Barones, not excluded by this Charter, and so their ancient Right continued, though they are not within the meaning of that part he insists upon; for this is only of Tenants in Capite, that is, such as were subject to the Feudal Law. The Earl of Chester for instance, was not under it as Earl of Chester. Wardship was a necessary Appendix to that Tenure; but, even the Tenants within that County, though holding other Lands of the King by Knight's 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 obliged 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 mentioned in this.  
(3.) We have the Resolution of a whole Parliament, the 40th of Ed. 3. That the Common Council of the Kingdom, of Tenants in Chief, was not the Great Council of the Kingdom; for that King John resigned his Crown in the first Council, but as they declare, not in the last: and this the very Circumstances, attending the Resignation, evince.  
(4.) If the opposite Doctrine be true, than all the dignified and inferior Clergy, which did not hold in Capite, Abbots, Priors, etc. 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 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 used to be without their own Consent: here they have a Consent given them.  
2. As Tenants by Knight's 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 redressed; for their Attendance in the Wars, was to be governed by Necessity; and, as a Court of Justice, there was no need of them.  
(7.) There is a Difference to be observed all along, between the Great Council, and such an one as is mentioned in this Charter I. For the Persons composing the one and the other. 2. The matters of which they treated. And 3. the times of holding them.  
For the Great Councils, by his own way of arguing, there was at least one Great Council, in the Reign of William the First, where, were more than Tenants in Chief. The Tenants in Chief, he supposes to have been only the Normans and Foreigners, who were Enemies to the English Laws, and the only great men by his Rule; wherefore, if the English Laws were retained at the Petition of any great body of men here, they must be populus, 
Jani Anglorum facies nova. p. 55.  inferior People of England.  
This was, Ad preces Communitatis Anglorum, Universi compatriotae regni petitioned, 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 show 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 settled.  
I need urge no more in this Reign, except that which he hath yielded to my hand, in effect, viz. that all the Freeholders' of the several Counties of England, met this King in a Great Council at Salisbury. For, he himself tells us, that all the Freemen of the Kingdom, held by Knight's Service, and here were all the Knights; so more than Tenants in Capite, and all the Freeholders' 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 owed 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 virtue 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 Freeholders' being made Milites in the County Court, 
Jan. p. 47.  by the Sheriffs delivering them free Arms, in pleno Commitatu? But, what says he to the Records and Statute, cited to prove that all the Freemen 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 produced 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 Sense. 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.  
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 etc. p. 57  cleri quoque & populi petitione, & electione.  
In this Reign, 
Jani etc. p 58.  we find at Council, Proceres & conglobata, & coadunata multitudo, totius Regni adunatio; and the Laws passed 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 summoned 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 last bodies of men could not have been such by their Tenure, because they were distinguished from such.  
In the 30th of Hen. 3. 
Hen. 3.  we find summoned, all the Tenants in Capite, and two for every County, to answer for all the Freeholders', Vice omnium & singulorum. The Prior of Coventry pleads, that besides the Services of Tenants, 
Jan. etc. 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 Manors and Demeasns, who, as elsewhere, hold freely, and in free Socage, and by Knight's Service from the new Feoffment, and that since the Conquest.  
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. etc. 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 labour, 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 Judgement, 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 show, what I left out of the Record, was no Concealment, there being nothing in it, which can make 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 show the Freedom of this Gentleman's Censure, which outruns 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 burden 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 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 etc. p. 239.  so it falls out, that I unluckily had affirmed, that when there was a Grant which reached to the Tenants de novo Feoffamento, the Record mentioning that, shows us, that more than the King's immediate Tenants, were Parties to the Grant; but that other Records show, that Tenants in Capite, granted by themselves, a Charge upon the Vetus Feoffamentum only.  
But let us see whether that part I omitted, show 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, 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 Balliuâ praedictâ, modo praedicto, sine dilatione distringas omnes Milites, & liberè tenentes qui de eis tenent per servitium militare, in Balliuâ 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, etc.  
You must understand, that two Marks being granted upon every Knight's 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. etc. 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?  
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 shows, that both the King and Lords could not charge the Lords Tenants, though to relieve the Necessities of the Tenant in Capite? 
Jan. etc. 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 named to be charged, 
ib. p. 238. & 239.  there omnes alii are particularly named; otherwise, only Tenants in Capite?  
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, etc. 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 forced only from those Lands, which were out of their Possession. Ideo etc. distringas omnes milites & liberè tenentes qui de eis tenent per Servitium Militare, etc. 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, 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 Knight's 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 Knight's 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, etc. 2. Marcae de singulis feodis militum tam de novo Feoffamento quam de veteri, etc.  
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 Knight's Service gave, it being after the Doctor's marvellous year, 49 H. 3. and more are specified) as it used to be in the time of the King's 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 etc.  
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, 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 longwinded Quotations, yet, I cannot cite more of the Record, 
Vid. Jani etc. 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 eye tenant 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 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, deliberate. 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 & Auunculi 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 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 baptist, 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. Blow et R. de Ferr. et Philippo de Belmeis apud Brugg. in reditu obsidionis Salop. Anno Dominice incarnationis MCXXXIX, regni ●erò mei tertio.  
Having thus cleared myself, 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 eyes 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 etc. 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, yet 'tis the Thing, not the Word, I contend for; and such were not chargeable by Tenants in Capite.  
His second Interrogatory, 
Jan. etc. p. 234. & 235.  who gathered 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 distrained by Virtue of this Writ? And, perhaps he will not think it evident beyond Contradiction, 
Against Jan. etc. 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, etc. 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.  
If a man holding of the King in Capite, by the Service of two Knights aliened 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 raised 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 assessest 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.  
Show me wherein, or take what I have brought.  
To go on with Great and General Councils, 
21 H. 3.  we find at a Great Council, Comites, Barones, Milites, & liberi homines. Whereas, 'tis said, on the other side, that none under the Degree of Knights came.  
At another, 
Jani etc. 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. etc. p. 246.  A Domino Rege, & Domino Ed. filio suo, Prelatis & Proceribus omnibus, et communitate regni Angliae. To all this, 
p. 265.  may be added, that long before, where the ingenuitas regni were consulted.  
Here are Instances enough of greater Councils, than such as King John's Charter settles, as I have observed, those there were made a Council only for the matters of their Feud; they met ordinarily, three times a Year, and in that were ordinarily a Court of Justice: and he betrays his Ignorance, not to say more, who affirms 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 administered 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 Proprietors, or of Representatives, of their Choice; in the other at the most, the King had only his Tenants in Chief, and Officers and Ministers of Justice.  
(2.) As to the matters treated of; the one treated of matters of extraordinary Justice; the other, but ordinary.  
(3.) For time, the great Council was summoned as often as the State of the Kingdom required it; the other, as a Court of Tenants and Officers, had times ascertained: not but that as occasion might offer itself, they might be summoned 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 oftener 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 offered upon the Question of the Bishops Voting in Capital Cases, since he had no other way of answering it, than by calling it impertinent Rhapsody. Tho if 'tis no better to be answered, 'tis not Rhapsody and fanciful 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 raised. 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 consent to balance 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 undo and destroy their own Settlement in Power? Wherefore, the Argument is strong, that till then the Commons came in their own Person; but that then the Great men, having the Power in their hands, clipped 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 satisfy him in matters of the greatest Concern, we may know what he would be at. But forsooth, this was not a full Court of Tenants, because, as was usual, only some few attested the Fact.  
In Opposition to my Fifth, 
p. 10. & 11.  he tells us, that even voluntary Gifts to the Crown, are called auxilia; nay, even such as were more than Advances upon Services. But, what proof is there, that such were here meant, when not only Services, because of Tenure, with the Advances upon them, but what came from more than Tenants, are called Auxilia too.  
As general Objections against my Sense.  
(1.) If Tenants in Capite were a great Council of the Kingdom, 
p. 12.  for Aids and Escuage only, which is hardly reconcileable to Sense? (Why so, good Dr.? May there not be a great Council, especially a Common-Council, to a particular Purpose? Nay, you yourself confine its 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 Freemen, 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 seldom 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, and the Curia pro more, he attacks me very vigorously; and having before taxed me with new modelling the Government, wild, 
p. 1.  extravagant, and confused 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 mentioned, were but an ordinary Curia or Council, and such as in his own Judgement, contain any thing that makes for him: The Councils there spoken of, are Great and General Councils, to be sure.  
'Tis, doubtless, an heinous thing, to call that a Great or General Council, which is so in my own Judgement: 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 composed the Curia, held pro more thrice a year; surely, it lies upon him to show 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 signify any thing.  
And to retort his last Charge, as he deals with Sir Henry Spelman, in putting upon him his own, or his Friend's 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 Judgement 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 Council, which he hath made his Instance for his ordinary Court, and be the same with the Common Council of the Kingdom established by that Charter, meaning King John's, he gains the point; but, if it cannot be done, he may very well blush at his own Confidence, to say no more.  
Truly, 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 King's 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 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 aught, 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 Judgement 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 that the King would do him Remedy and Grace upon it; because, none but Kings themselves ought to judge of King's 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 Judgement 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 King's 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 King's Counsel. Several things are transacted coram toto Consilio, and Judgements given secundum consuetudinem Curiae. Indeed we often find, that, when Matters of Public Concern, or which, as they say, concerned 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 Tried 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 Trial 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 always was a Jury of twelve at the least.  
Farther, Before the Itinerant Judges were settled, and before the Courts fixed at Westminster, Pleas must needs ordinarily have been coram ipso Rege, he being personally present. And that the Tenants in Chief 〈…〉, appears by the Constitution of Clarendon, which requires it in affirmance of the Common Law. Archiepiscopi, Episcopi, & universi personae regni, qui de Rege tenent in Capite, debent interesse Judiciis Curiae Regis, etc.  
Our Adventurer in Antiquities, who treats the Author of Jani Anglorum Facies nova with much contempt, has this passage; 
p. 26.  Notwithstanding he says 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 King's 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 always have been to the House of Lords, and many more of ancient times, than have been for a Century or two of years. And that they did determine and pass Judgement in those Cases. But, that they were therefore the King's Ordinary Court, I think no body will say, but such as never read ancient History or Lawyers, or, at least, never intent to understand them.  
Truly, he has an excellent Faculty to bring men's Arguments into the shape of his own; and then 'tis easy, 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 only, 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 joined to the greater: though, both the House of Lords, and the Curia before, were the Supreme Courts of Judicature. And, if the Curia was held thrice a year, and confined to Matters of ordinary Justice, which, I think, I have proved, in showing 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 credig, 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 Gloucester, Easter at Winchester, Whitsuntide at Westminster. Besides, at these times, when the height of the Feasting was over, Causes used to be heard, 
Ea●merus, f. 37.  as Eadmerus, who might well know, informs us. Peractis igitur festivioribus diebus diversorum negotiorum Causae in medium duci ex more caeperunt. When therefore the most Festival days were over, they began to treat of divers Causes, as was the usual manner.  
To these Feasts there used to come only Tenants, and the King's great Officers, which I need not go to prove, since our Author would have Tenants only▪ even exclusive of Officers that were not Tenants, 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 shown, and their Business ordinary Trials, 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. etc. p. 191.  by my saying, that the Administration of Justice, (which I mean of the common or ordinary Administration,) was taken from the ordinary Curia, and fixed 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 placed 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 fixed 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 proved in the Answer, 
ib.  that, after the granting of this Charter by King John, there were many general and great Councils or Colloquiums summoned by Edict, according to the Form, which he would have to be there prescribed?  
However, it seems, by him, that there was no such Form for general and great Councils before.  
But, how well does 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 only 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. etc. p. 192.  of Right it should, unless swallowed up in Parliaments, But, whenever the Court which granted such Aid as the Charter means, ceased to be held, pro more, thrice a year, it ceased 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 jan. etc. p. 53.  in all its branches and divisions, and derivative Jurisdictions; and yet not the same, any more than a man is the same with his Executor that represents his Person, and is the same in Law.  
The House of Lords had the Jurisdiction of the ordinary Curia, most properly, being as he himself yields, '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 inferior 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 inferior 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 Justice's Itenerant, or of them that were settled at Westminster-hall, was derived from the King and his Curia, either ordinary, or when it cased 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 empower 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 tried 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 fixed 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 certify to the higher Court, what appeared to them, as was usually done by those who were assigned 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 derived from the King's Grant, or the King's Right and Title might be affected by any matter in Question, 'twas usual for the Curia to order that Judgement should be stayed, 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, & in Scaccario si necesse fuerit rationes & evidentiae siquae pro jure Regis in hac parte poterint inveniri. 
Si necesse spirit.   
It seems, the Justices of the Common Pleas, Brabanzon and his Fellows, not being particularly commissioned, could not proceed to Judgement, 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 herself 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 Judgement 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 certify the Council, who had reserved the Judgement to themselves. In short, the supreme 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 used 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. etc. 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, etc. Therefore,  
En primes en droit, de nous mesm & de nostre Court avouns issint ordyne, que pur ceo que nous ne sufficens my en nostre proprie person à oyer & terminer touts quereles del people avant dit, avouns party nostre charge ex plusieurs parties sicome icy est ordyne.  
Can any thing be more plain, than that all inferior Courts were derived out of this Curia, for the sake of which, as well as the Kings own, the Charge was divided?    

CHAP. VIII. That ordinary Freeholders' 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 its Power, I shall address myself, to show 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 shown in my first Essay in this kind, by very clear proofs, that the Liberè Tenentes of the Kingdom, Freeholders', came to the Great Councils from the Reign of William the First, inclusively, to the 48. or 49. of Hen. 3. without any settled Exclusion; which is enough, if it reached to the greatest part of them, with which the Balance 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 Footsteps 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 myself, I shall prove, that all the Freeholders', 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 entering into such Sodality.  
De omnibus Villis totius regni sub decimali fidejussione debebant esse universi. 
Leges Sancti Ed. cap. 19   
The whole People of all the Vills of the Kingdom, aught to be under or else, within, Franckpledges.  
It appears by another Law, that those who were not Freeholders', 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 Freeholder: for him who had not wherewith to maintain his Family, either no body would undertake for, and so he was cast out to be imprisoned, 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 Freeholders' had an inferior 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, & 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 infested humane Frailty, and continually assault it. But, when greater Causes happened, they were referred to Justices above them, which the aforesaid Wisemen placed over them, to wit over the Heads of ten tithings, whom we may call Centuries or Centumvirs, because they always judged an Hundred Frank-pledges.  
These Heads of the Tithings, who were Judges in the Vills, were Aldermanni, chose by the major part of every Tything. From this it follows, that if the Headborough was an Alderman, of the choice of the Freeholders', than the right of Freeholders' 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 tithings.  
But, the main point yet unproved, 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 tried according to Law. But if he be accused 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 accused, that he fled with his Counsel or Consent, let him wage his Law with five Thains, that is, Nobles, and let himself be the sixth. If he cannot acquit himself, let him pay the King the price of his Head; and let the Party that fled be outlawed.  
Here the Master of the Family was joined with five Thayns, and he made the sixth; and this the learned 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, etc. fidissimos adhibeto. Vt omnis liber homo habeat credibile plegium.  
Let every Freeholder have a credible pledge, (this must be confined to Dominus familiae) unless it be of such as cannot be Pledges themselves, but under Free-pledges, their Masters.  
And this is farther evident, in that it answers to the Head-borough's purging himself, 
Quinque Thanis, i. e. Nobilibus. Leg. Canut.  and his Tithing with five Friborgi, or Frank-pledges se duodecimo existente, that is, Duodecimâmanu with the 12th hand, as is required by St. Edward's Law, de Friborgis, where no other Nobility is exacted, than what every Free-pledge had.  
The ancient Laws give farther Proof; in that Satrap, a Peer or Noble, and Paganus, a Chorle, or Villain, as we find Chorle rendered in an ancient Manuscript, cited by Mr. Selden, 
Vid. Jan. p. 32.  in his Titles of Honour, took in all the Orders of men.  
Idem juris esto per omnes hominum ordines, 
Leges Aluredi de proditione dominorum.  sive Satrapae, sive Pagani fuerint. So in the Laws of William 1. whereas, 'tis supposed, that the Thayni, or Barons since answering to them, were denominated from holding of the King, 
So doomsday. Bron●ton Leges Canuti, apud Lamb. de.  we find Thanus Regis, and Mediocris Thaynus, or inferior, sive infamae conditionis, distinct. And 'tis to be observed, that this took in all that paid the Hereot, which was then a payment relating to the Army; so that this, to be sure, reached to all that held of any by Knight's Service: but, it appears by St. Edward's Laws, that it reached to all that bore Arms. 
De Heretochiis.  In quolibet comitatu semper fuit unus Hereteoch, per electionem electus, ad conducendum exercitum Comitatûs sui, etc. Et qui in bello ante Dominum suum ceciderit, sit hoc in Terrâ, sit alibi, sint ei relevationes condonatae & habeant Haeredes ejus pecuniam, & terram ejus sine aliquâ diminutione, & rectè dividant inter se.  
But, it will be said, whatever was the Law before William's time, it was not so after; 
Leges H. 1. cap. 29. Qui debent esse judic. 7. Rs.  but, for this I will one a Law express.  
Whereas the Thayns are called Nobles, in the Laws by me cited, and as all Authors agree, have generally since been called Barons, (not but that in William the First's time, 
Terra Tainorum Regis.  they retained their old names, as appears by doomsday 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 eyes 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 another's Causes. But Villains or Beggars, or they who are base and indigent persons, are not to be reckoned amongst the Judges of the Laws; wherefore, they neither forfeit their own nor their Master's Money, in the Hundred or County.  
'Tis plain, that the Judgements 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, etc. 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 Freeholders': 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 Knight's Service, were Barones Comitatûs.  
This of being Suitors to the County and Hundred Courts, 
Against Mr. Petyt. p. 40.  etc. was a Service incident to their Tenors. For proof, he refers us to Glanvil, but with very little Success; for, in the 13th Book, which he fancies throughout, to agree with his Vagary, Liberi, & legales homines, are as often named as Milites: sometimes indeed, Milites strictly were required at the Common Law; 
1 Inst. f. 256. a.  as where a Peer of the Realm was concerned in the Action; and four Knights upon their Oaths ought to return twelve Knights to try the Mice 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 owned 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, etc. 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 its due,  
1. 'Tis absurd.  
2. 'Tis dangerous.  
1. We know that the Titles to Estates from before the reputed Conquest, are allowed upon the Presentments of the Counties and Hundreds, Testatur Comitatus, Testatur Hundredus, etc. If these were all Strangers, brought in with the Conqueror, 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 Trial 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 Knight's Service; since we are told, that they were all Normans: and this appears, in that they were Antiqui, such as were ancient, 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.  
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 does not make four.  
2. His Notion is dangerous, and that according to that Improvement of it, for the sake of which, 'twas broached; But of these Tenants in Capite, 
Against Jani etc. 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 Lord the King, in many Counties of th● Realm of England, have now of late been made by very great and outrageous, 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, etc.  
Here is manifestly an Exclusion of some former Electors, but no new ones created; wherefore, the unforced 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 choose their Representatives, this great Preservative of the Rights and Liberties of 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. etc. p. 91.  secured this Privilege 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.  
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 Freemen 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.  
IT will be hard, if amongst these Ingenui, 
Against Jani etc. 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, than 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.  
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 Lays, but an Order and State of men, 
Ib. p. 57  distinct from the ecclesiastics or the Clergy. This, by no means, is meant of the inferior sort of People.  
But, good Mr. Interpreter, if Clerus signifies inferior Clergy, as well as the Superior, nay, is most commonly appropriated to the inferior, what becomes of your profound Observation, and of all your Precedents? 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 Archbishops, 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 they would treat about that matter. And the great men retiring out of the Refectory, the Archbishops, Bishops, Abbots, and Priors, met and treated by themselves. At length, the Earls and Barons were asked, 
The Dr. omits englishing ex parte eorum, either not understanding it, or because it manifestly destroys his Whimsy, 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 University, 
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 Balliol, 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 shown 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 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 asked by the dignifyed Clergy, then present, whether they would agree with them? The Lay Lords answered for themselves, that they would do nothing without the Common University, 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 concurred, here had been the Consent of the Common University of Lords, if we may so call it. But besides the Consent of all the Lords, there was required 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 inferior 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 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 Chemical Art, to bring it to Life again, with the Authority of an Historian; who, though much to be relied on, is surely of less Authority than a Record. Well, but what says the Historian? Does 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. Yet, 
p. 184.  the Dr. very comically tells us, Here we find others that owed 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 Knight's Service? Where lies the difference between holding in Capite of the King by Knight's 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 Knight's Service, 
ib p. 39:  was no Knight, though 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 Bondman might hold by free Services, and yet be a Bondman.  
Do not you yourself 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 mentioned 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 tells us, the Word Ingenuus has anciently been used) were Members of the Great Councils, notwithstanding the Doctor's 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 hosts 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 cujus & machinatione quidam magnae Auctoritatis, & Prudentiae viri adversus dominum Nigellum Episcopum parati insurrexerunt illum ante conspectum Domini Papae appellaverunt sinister & 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 urged 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 Eyes, one would imagine, he thereby intended to put an Argument into my Mouth, for the Rights of inferior Proprietors.  
Statuit & ordinavit quod omnes illi Comites, 
Against Mr. Petyt. p. 227.  & Barones Angliae, quibus Rex dignatus 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 inferior Land Owners, since the Majores Barones came before in Person, 
Against Jan. etc. 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 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 signify more than When? For, being the times when the Parliament should sit, were not ascertained 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 signify the Nobility.  Dic quibus in terris, & eris mihi magnus Apollo. 
Upon the whole, if eye 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 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 affirmed 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 called 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.  
This royal Comment upon the former Law, shows 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 Knight's Service, Burroughs holding in Chief, and Towns incorporated not holding in Chief, is still a Council of Peers, though composed of all the former, and the Grantz of the Counties; which, as I have shown, were not confined to men of those Tenors. And, what reason can be shown, 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 called 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 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 etc. 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 etc. 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.  etc.  
Let any sober knowing man consider these few Instances of many, 
Against Jani Angl. p. 40.  wherein the Commons, undignifyed 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 called Nobles; though, 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 Salmon, a Record, tells us, was, 
Rot. Pat. 14. Ed. 2. De inquirend. de Salmonibus captis in Com. Glou. contra statutum.  Statutum de Communi Consilio Regni, ordained 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 Syllable 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 particularised. 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 organed de Communi Concilio regni, by the ammon Council of the Kingdom.  
The Dr's 
* Mat. West. fo. 433. l. 36  Historian mentioning this parliament, 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 expenses to that parliament, 
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 usque 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, ruching the King and People.  
The Statute of 1 E. 3. was the Communi ●●ncilio regni Concordatum & Statutum in ●●rliamento apud Westm. 
Rast. Stat. 1 fo. 64.  agreed and ●●acted by the Common Council of the kingdom, 
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 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 precedents of addresses to the whole representative Body the Commons of England, as to Wi● which took in all the Members before 〈◊〉 supposed Conquest, or Nobles which 〈◊〉 as comprehensive after.  
1. Tressages Communes.  
A les Tressages Communes de cest ●●sent Parliament. 
Rot. Parl. 11 H. 4. n. 36. Pur Johan. Bartrum.   
As Tressages Communes, 
Rot. Parl. 13 H. 4. n. 23. Pur Labbe de Furneys.  etc. que p●● considerer les premises, & prier à nostr●● S●nieur le Roy de grantier per authority Parliament, etc.  
In the like form, 
Pur Tho. Chaucer Esq 2 H. 5. n. 18.  etc. Petition pur Mairs, Constable's, & la Compaigne de ●●●staple a Caleys, directed as aforesaid.  
As Tressages Communes supply hurlement Lucy que fuist la feme Esmond ●●gairs Count de Kent. 
Rot. Parl. 2 H. 5. n. 47. Rot. Parl 9 H. 5. n. 19   
Que pleise a voz Tressages discretions ●●●siderer.  
Pur le Countess de March, 
Rot. Parl. 3 H. 6. n. 29. Ibid. n. 32.  pleise a Tresses 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 communes, de cest present Parliament sup●● treshumblement, etc. Upon which petition, and others assented to, after delivered to the King and Lords, the Abbot ●as relieved, and Sir Philip was adjudged ●nd awarded to the Tower.  
As Treshonourables, 
Rot. Parl. 2 H. 5. n. 16.  & Tressages Communes, etc.  
Pleise a vostre Tressages discretions de ●nsiderer & auxi prier nostre Seignieur le●oy, 
Pur Thomas Salman.  de grantier & ordeigner en son dit Par●ment peradvies & assent de toutz les Seig●eurs Espirituelx & Temporelx, etc.  
Qua quidem petitione coram Domino Re●● & Dominis Spiritualibus & Temporality existentibus lectâ & materiâ in eadem ●●nius intellectâ idem Dominus Rex de as●●nsu Dominorum predictorum & ad requi●ionem Communitatis predicte, etc.  
As Tressages, 
Rot. Parl. 8 H. 6. n. 51.  & Treshonorables Commons de cest present Parliament monstrent les Mair, Alderman's, & 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 Parliament supply treshumblement, etc. Quele petition 〈◊〉 devant le Roy, & les Seignieurs ● Parliament en entendue, & le dit Joha● amesme en plein Parliament, 
Rot. Parl. 4 H. 5. n. 17.  etc. pur Joh● Alleyn & autres.  

a Rot. Parl. 4 H. 4. n. 19 Pur Monsieur Thomas Pomeroy Chivaler.  Alice Treshonourables & Tressag● Communes de cest present Parliament. 3. Honourables & Tressages Commun●▪  

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

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● etc. Lu. quele petition & bien conceive 〈◊〉 mesme le Parliament fuit respondu, etc.  

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

e Rot. Parl. 4 H. 5. n. 19 Pur Labbe de Fountains.  Pleise as Honourables, & Sag● Communes.  

f Rot. Parl. 5▪ n. 16. Pur le Duc Decastre.  As Honourables Communes, que plei●● a vous Sages discretion's de prier etc.  

g Rot. Parl. 9 H. 5. pars 2. n. 11. 〈◊〉 Willielmo Domino de Clinton.  Alice Honourables, & Tressages Com●munes supply Sire William de Clinton, & 〈◊〉  
As Tressages, 
Rot. Parl. 6. H. 6. n. 17.  & Treshonourables Communes de cest present Parliament, 
Pro Johanne Harris.  pleise ●vous Tresnobles discretions de prier a no●tre Seignieur le Roy, etc. 
Rot. 8. H. 6. 29.   
Please a Tressages, & Honorables Communes, etc. 
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 Parliament. 
Rot. Parl. 4. H 5. Pur la terre Dirland.   
As honorables & Sages sires les Communes dicest present Parliament suppliant, etc.  
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 Parliament supply treshumblement, 
Pur Mark le Feyre.  etc.  
Please avoz Honorables, & Sages discretion's graciousement Supplier a nostre Sovereign, etc. La quele petition lieu en dit Parliament & plenement entendue fuit respondu en manere qeu suit, etc.  

a Rot. Parl. 4 H. 5. n. 20.  As Treshonorables, & graciouses Seignieurs la Commune du cest present Parliament, etc.  

b Bundle Pet. Parl. 4. H. 4. Pur Burgeys de la Ville de Lym.  As Tressages, & Tresnobles Communes de cest present Parliament.   

SECT. 4.  
FOR Confirmation of the Nobility of such Commons as now are represented 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 Knight's Service.  
One of his Arguments to prove that Commoners were not Members, is, because though Records mention Communitas or Milites, 
p. 110.  (which takes in the Tenants in Capite▪ and their Tenants by Knight's 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 Tenant's 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 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 Satirist,  
Aude aliquid brevibus Gyaris, & carcere dignum  
Si vis esse aliquis—  
If you'll 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 University will teach Loyalty to the most Factious, and dispose them to swallow down that Remedy, which, out of a 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 Judgement, 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 studied, and know only 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 sagacious Inventions, advance, or depress, as I see occasion.  
Under the Saxon Government, 
p. 6.  the People were so far from not having their Votes and shares in these Councils, as only they had Voices 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 spoiled 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 myself, King Edward, surnamed 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 inferior Proprietors were there as Nobile●, but 'tis without all colour of Reason.  
And in the Grand League and Union between the Britons, 
ibid. p. 8. and 9  Saxons, and Picts, 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 jumped 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 Conqueror, 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.  
Sir Edward Coke, 
ib. p. 30.  who, to avoid the evidence that our English Laws were the Norman Laws, 
Against Jan●, etc. 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 Conqueror brought in a New Law, 
Against Mr. Petyt, p. 29.  and imposed it upon the People. The greatest part of the Ancient Law, as it was brought hither by the Normans, was exacted and observed by, 
ib. p. 43.  and upon, only the Normans: For the English, they had no Property or Rights left: And so were all Outlaws.  
This Domesday-Book in every County shows, though, 'tis said, several Englishmen are there mentioned, holding by Titles not derived from the Conqueror. 
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, Britain's, Poictovins, and People of other Nations.  
When this King, in the 4th of his Reign summoned Anglos Nobiles, & Sapientes, & suâ lege eruditos, to give an account of their Laws, 'twas a Shame Summons, for no English were Nobles, nay, none were so much as Freemen, 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 used 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 only of Tenants in Capite, 
p. 56.  never of the inferior sort of People.  
Wherefore, they dote who say that the inferior Clergy, nay the dignified, not Tenants in Capite, came to Great Councils before 49 H. 3.  
It's very true, 
Against Jan. etc. 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 called autres grantzes, or Grandes, autres Nobles, which were Barons, Peers called by the King's Writ into the Lord's 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 called sometimes to sit in the Lord's House; And whether they that were chose for the Counties, and did not sit in the Lord's House, as Baron's Peers, were Grantz or Nobles, perhaps may be a Question.  
As a choice piece of Learning, I must acquaint you, that though sometimes Fideles signify qui in Principis alicujus potestate, 
Glos. p. 15.  & ditione sunt, qui vulgo subjecti appellantur; Subjects in general; yet, unless there be special matter to show 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 Unwary Readers, whom they seduce to have some good opinion of their Fancies.  
Though that Form of peace is said in the Record to be Actum in Parliamento London, 
Against Mr. Petyt, p. 208.  yet the Prelates and Barons were such as sided with Montfort, 
p. 120.  and the Community was the Body of his Army, and the Citizens and other of the Faction, they were not the Community of the Prelates and Barons only, 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, etc. 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 idly 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, caballed together, and, as some will say, only resolved upon what they would press the King to, they hereby Statuebant, etc. made Laws before the consent of the King, and all the Bishops, Earls, and Barons, and, it should seem, before all were assembled, or could be a Parliament.  
And (which such as never intended to understand will make a wondering at) the Community was the Body of Montfort's Army, 
Against Jan. etc. 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 only 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.  noblemans, 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 Great men were the King's 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 called the University of the Militia, that is, of them Qui militare servitium debebant, the Milites & Fideles.  
It seems, in many of these Parliaments, or Armies (choose you whether) the Clergy, in their Canonical Habits, addressed 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 forced by the Barons with their Swords in their hands, or promised 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 etc.  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.  
What though, in the Letter to the Pope, 
Jani, etc. 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 Freemen, were the only men of Honour, Faith, Trust, and Reputation in the Kingdom. These were the Freemen which made such a cry for their Liberties, 
ib. p. 27.  as appears by Magna Charta, most of which is only an abatement of the Rigour, and a Relaxation of the feudal Tenors.  
Nay, 
Against Mr. Petyt, p. 39  'tis to them, these Freemen, only, that the Grants were made: They that are there mentioned, holding of the King in Fee Farm, 
Vide King John' s Charter.  petit Serjeanty, free or common Socage and Burgages, held not so: 
Jan. p. 181.  But they all held by Knight's 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 Turn; 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 doomsday 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 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 Inferior 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 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 followed 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) framed 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 finished: And the King's beginning this, was a Reason why those Kings followed 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 Battle of Evesham, when Montfort prevailed, 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 shows 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, does he therefore make Janus bifrons of his Composition? He had as good call it a Spread Eagle, which looks both ways 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 justify him, since that Antiquary was chief 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 shroud 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 Raillery and Figure, who observe not how I expose him by the Allusion.  
He will have it, and brings many Arguments, 
Jan. Angl. etc. p. 22.  amongst which, the Judgement 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 only 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 always. 
Against Jani etc. p. 10, 11, 12.  Farther, What need was there to have the Cause of Summons declared, if it were only 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.  
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. etc. 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 says, Comites Paleys, Count's 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. etc. p. 17.  he leaves out Laici, because it manifestly destroys his Whimsy: for it shows 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 only of Matters of ordinary Justice, 
Vid. Jan. etc.  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 citys Bracton, who speaks of several unintelligible 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. etc. p. 5.  whereas, in truth, the Great Charters were only 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 passed, 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 enroled in the 25th of his Reign, in ipsissimis verbis, when 'tis confirmed 〈…〉 in full Parliament, 
Per common 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. etc. 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 Reigned 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 confirmed in Parliament, in the 15th of Edward the Third, 〈…〉 〈…〉, 
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 declared, 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 satisfied 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 〈…〉 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 only.  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 day's Summons required to the purposes there mentioned. 
Jan. p. 13.   
But this is precariously said. 
Jan. etc. 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. etc. 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 shows, that the Free Tenants came to their Parliaments in their own Persons. But the Scottish Government neither was, nor is, the English, any more than every like is the same.  
He shows us, 
Jan. etc. p. 214.  that the Nobilitas, Populusque minor, was consulted about King Henry the First's Marriage, but he was an Usurper and a Traitor.  
He urges, 
Jan. etc. 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 only with the Community of the County.  
Though he citys 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 only, 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 summoned. ●nd indeed, this is a way of shaming a Record, which I earnestly re●mmend, having often tried it with access; Witness my turning off another Record with the Authority of watch. Paris. 
Against Mr. Petyt, p. 183.   
Whereas the New Face-maker takes ●●tice of the Complaint in a Parliament of Henry the Third, 
Jan. etc. 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 herefore that they must refer themselves to the Clause which provides ●r the Liberties and free Customs, ●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 provided 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 than ●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 othery who came in with William the Conqueror.  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 the Retinentia Regis, because of a certain Honour under him obtained by a special Mandamus: 
berner's discharged from being Knight of the Shire because de Retinentia Regis  By reason of which 〈◊〉 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 dispensed with, 
One Knight for a County, etc. 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 the OMISSIONS OF OUR Reverend AUTHOR.  
LONDON, Printed for Edward Berry 1681.   

ADDITIONS Answering the OMISSIONS, etc.  
SInce the Doctor thinks to flourish with some of his frivolous Omissions, like running his Sword through me after he had slain me in imagination; To show that I am not ●uite killed, I shall venture to try the ●ngth of his new whetted Animadverting Weapon, and give him a few ●ome thrusts in exchange for his intended ones. Because I find him a ●entle, and easy Foe, I shall advise ●im like a Friend,  Frange miser Calamos, vigilataque praelia deal. 

Your miserable Scribbling pray give o'er,  
With such polemics vex the World no more.   
Nor censure every thing as Impertinent, 
Against Jani, etc. p. 1.  unintelligible, 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, etc. 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 King's Demeasn, though indeed 'tis then shown 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 Voluntary Aid obscure? Or is it not well known that the King's 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 obscurity may lie, and yet, by the Doctor● Art of multiplying faults, they ma● make three obscure Paragraphs.  
2. This explains that part of the Charter, 
He adds such to Cases, to render it obscure. Jani, etc. 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 King's 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 Tenants 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 from the privilege of one City, suppose it were so for London, nor can be gathered from my words, which yield that even London might be Taxed or Assessed by the consent of the Common-Council of Tenants) or that they, 
Against Jani, etc. 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 Tenants for a Rationabile auxilium. Jani, etc. p. 26.   
This he yields to my hand, that they always did if they would, it seems convinced by that Record, which shows that when the Council of the City would not agree to the Sum demanded by the King, 'twas the voluntate omnium Baronum nostrorum Civitatis ejusdem, that the King talliated his Tenants per se, or per Capita, so much upon every head.  
3. This clears the last Paragraph which I need not recite, it having no meaning differing from the Record, but if my Record give not sufficient light and strength he, I thank him, according to his usual Courtesy citys 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 the City should explain that part of the Charter which says 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 Tenants there named in general, it must be for something else, besides that for which 'tis joined with the other Tenants.  
But Excedimus tenebris in crepusculum, from this obscurity and darkness to be felt by the Doctor's groping 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 public Taxes without public 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 Tenants, whom he makes the Common-Council for all manner of Aid and Escuage.  
But it may be said, a Tallage was no public Tax, though the Tax here spoke of, is made no more public than the consent required to charge it; Which consent according to him, was from immediate Tenants only, so that Tallage might be a public Tax as well as any other. And to be sure Scutagium concerning the King's Tenants only, and the Cases in which the King reserved to himself power of taxing without public 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 expressly, that according to the Law in King John' s Charter, London and other Cities and burgh's were to be Assessed and Taxed by the Common-Council of the Kingdom. 
p. 117. & 118.  And he makes a reason of that provision, to be the usage in the time of H. 2. for the King to Talliate, or Tax them without such a Council.  
The Doctor has doubtless the most particular convincing way of reasoning of any man, he says that Law in King John' s Charter intended to restrain the King from levying of public Taxes without public 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 confessed to be, a Public Tax) because some of King John's Successors Taxed their Demeans without public consent. Therefore 'twas provided in King John's time, by way of Prophecy, that no public Tax, Aid, or Escuage should be raised without public 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 and purposes. Not that the King was restrained from levying a public 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, etc. intended to restrain the King from levying public Taxes without public Consent. That is (to explain what he very obscurely drives at,) the restraint was only from Taxing the whole Kingdom; not from Taxing his Tenants in Chief. And the reason of this Article, 
p. 118.  viz. as taken in this sense, is, that several times after this Charter was granted, Hen. 3. and Edw. 1. Taxed their Demeasns through England, though not the whole Kingdom, by Advice and Consent of their Privy-Councils only, until the Statute De tallagio non concedendo was made 34 E. 1. And both Richard the First and King John had Taxed the whole Kingdom without common Assent, before the grant of Magna Charta. And when he has made good the Premises in this Argument for the meaning of the Article, which will be ad graecas Calendas, then, he may conclude that this Article intended to restrain the King; 
Na. he should have added only. Nullum Scutagium, etc.  only from levying of public Taxes without public Consent, not to provide about Escuage, or Tallage, which none but his immediate Tenants were liable to. And from hence when proved, 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 observed 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 public consent? 
Bracton Lib. 1. cap. 16.  I am sure Bracton, as good an Author as the Historian whom he Vouches, tells us Carvage, and such this was, could never be raised but Consensu communi totius regni.  
But if the King in his Privy-Council might Tax the Kingdom its self, till the making King John's Charter, and was restrained 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 King's Council for making Laws, and giving Taxes, were not till 17. Jo. confined 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 Tenants in Capite, 
112.  who by their Acts obliged all that held of them by Knight's Service: 
113.  that is all the Milites, but not the liberè tenentes.  
We are taught that in the 6 of King John Tenants in Capite only, 
Against Jani, etc. p. 125, 126, 127.  provided that every nine Knights should find a tenth for the defence of the Kingdom, and that they who were to find them were all Tenants in Military Service. Though the Record shows, 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 Knight's Fee, 
Jani, etc. p. 225.  though not held by Knight's Service, it would have been an abatement of the Services due, and a weakening of the Kingdom.  
Besides, admit that Tenants in Capite only laid this Charge, and only Tenants by Knight's Service were bound by it, here is such a Commune Concilium of Tenants, as I say King John's Charter Exhibits, and no Charge laid by them upon others. Whereas he should have proved that they did oblige others without their consent.  
But suppose Tenants only were Charged, why might not the Charge have been laid by Omnes fideles in my sense, as we find Omnes de Regno, taxing Knights Fees only?  
The Doctor in his Margin gives us an admirable nota, 
p. 119.  that Liberi were Tenants in Military Service, or Gentlemen, Rustici Socagers, possessors or Freeholders in Socages only, which is as much as to say that Freeholders were not Freemen, unless they held in Military Service, and yet a Tenement, or Possession neither added to, 
Glos. p. 10.  or detracted from the person of any man, if free or bond before.  
But surely Mr. Professor has some colourable proof for his remark here: For that let others judge.  
Hoveden acquaints us with the manner of collecting a Carvage in the ninth of Richard the First, which was, that in every County the King appointed one Clergyman, and one Knight, who with the Sheriff of the County to which they were sent, 
Galls 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.  
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 shows us that these Socagers were legales homines, such as chose Juries, and served on Juries themselves, 
Against Mr. Petyt, p. 36.  etc. but our new light is positive that Tenants in Military Service were the only Freemen, and the only legal men. Thus I have done right to his Omissions, 
So▪ Against Jani. p. 36.  passing by nothing which has not received justice before, and shall add some confirmations of what I have taken leave to assert in other places.  
I had affirmed for one reason why the Doctor could have small assistance from doomsday Book, 
p. 78.  that the Titles whereby men enjoyed their Estates are seldom mentioned there. And if I find by Record a whole County in the Doctor's sense, that is all the Lands of the County enjoyed 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 doomsday Book?  
He may please to consider, and give 〈◊〉 Categorical Answer to this memorable 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, etc. prior venit & defendit vim & injuriam & quicquid est in contemptu domini Regis, etc. 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 Mariae genitricis ejus, & sancti Petri Apostoli & sancte Osburge Virgins, & 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 Sow 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 ubique 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 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 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, etc. praedictus prior sine die.  
This was a Judgement upon solemn Debate and Trial, and it cannot be believed but the Judges, and King's Council so many hundred years ago, knew as much of the right of the Conquest 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 acknowledgement of William's power; Or else having the Government of the County, would do this in compliment to the supreme Governor.  
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 confirmed 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 show how, by what manner of tenure his Land was held.  
Not being ware that so great an Author as the Doctor would have condemned for precarious, 
Against Jani, etc. p. 89.  all that I think I have proved from the Records and Histories which I cite for the foundation of my former Essay, 
Jani, etc. 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 abridgement 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'll believe the Chair all this is precariously said, 
Against Jani, etc. 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 proves my Assertion, being all that he there shows is, that there was not time for Writs to issue to choose any Representatives of the Commons, but not a word offered 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 King's 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 show 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 shows that Tenants by other free tenors, besides Knight's service were interested in it.  
Besides this, the frequent meetings in so wide a place as Runenede called Pratum Concilii, as I observed in the same page, is a strong Argument that vast bodies composed the great Councils in those days, and why Tenants in free Socage were not Members, as well as such as held of Subjects by Knight's service I see no reason, but wait for the Doctors; In the mean while I shall present him with some other Authorities which show 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 Tenants in Capite two chose for every County, 
Jani, etc. 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 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 showed that all the Members were in those ages styled Peers, such as might come in person, and that inferior Proprietors were Members, the Law of the great Folkmote then received proves beyond all dispute.  
3. If besides Barones, 
Jani, etc. 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 Tenants in Scotland, and the Possessionatis in Poland used▪ 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 shown, it being according to their natural right, and the natural import of the words; besides the Doctor does not allow of Representations, except the Tenants in Capite who came without Election, 
Jani, etc. 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, etc. 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 Tenants in Capite, than 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 Tenants in Capite.  
And as Tenants in Capite came in their own persons for matters concerning their Tenors; So, unless the contrary can be shown, 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 Manor of Darcy, which seem to be by several 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 expressly mentioned in the contested Clause, Tenants in Military service of King John's Charter, viz. of Tenants in Capite were Members of the Great Councils, (which he does not always confine to the great Tenants) 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 Knight's Fee, than a twentieth, yet in the last recited Record he may meet with the sixtieth part of one Knights Fee in the Manor of Norton.  
5. Being all that were Members of the Great Councils in those times of which our dispute is, 
Jani, etc. p. 32. 35, 36. 40. 57 62, 63, 64. 66. 185. 219.  were Nobles, in which the Doctor and I agree, and the 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 unwieldy 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 Doctor's Assertion, that the Commons answer in the same form of Speech conceived by the Barons? 
ib. p. 140.  Which he thinks worthy of great Letters, is that an Argument that the 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, etc. 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 shown 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, etc. p. 34.  or de arduis Regni, all the Counties and Hundreds, that is the Freeholders, the Suitors at those Courts were to be summoned 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; 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 settled 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 doomsday, etc. 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 turned into an Assembly of the King's Tenants upon the old legal Title, (and without a Conquest there was no other.)  
And as there must have been a vast number of the Proprietors whom the King's immediate Tenants could not oblige; so they must have been Members of those Councils which laid any general Charge, and that with the same privileges the Tenants in Capite, who came in Person▪ had.  
(10.) Though demonstration itself will not satisfy 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. shows 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, etc. 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 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) signify 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 privilege. 
p. 62.   
(11.) The Lords right of answering for their Tenants being founded in the imaginary feudal right, which is made to extend only to Tenants by Knight's 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, etc. p. 248.  and approved of by our Author as well as by me, shows that the 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 preserved 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 Barons 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 framed ●●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.  
(14.) And possibly then amongst his other marvellous discoveries, I may have time to animadvert a little more largely upon his fancy, 
Against Jani, etc. p. 34.  that the Suitors in the County Court were all Tenants 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 Tenants in Military Service, 
Against Mr. Petyt, p. 31.  though they held in Capite by Knight's Service. And that William the the First made no alteration of the Government; for Tenants by Military Service, were the only legal men, and the only Members of the Great Councils before.  
But as Tenants in Capite, 
Glos. p. 26.  and their Tenants 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 not directly to reach the Controversy 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 affirmance of the Law imposed by William, ●r in force before, declares that the Tenants 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 Tenants only 〈◊〉 compose the Great or General Council.  
3. That none but Tenants 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 Tenants, 
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 summoned by Edict according t● the form there prescribed: that is, a●● he will have it, after that the Tenent in Capite only were summoned 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.  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 Taxed by our ancient Kings, and their Privy-Council only.  
(2.) But in truth he not only yields that the Tenants 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 Tenants in Military Service, of Tenants in Chief, but other ordinary Freeholders. So that he submits himself to be gored by both the horns of that Dilemma enforced 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 Notion that Tenants 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 pleased, that is only an Estate at will.  
He will have it that Mr. Petyt is guilty of some horrible Design, 
Against Mr. Petyt, p. 1.  from the effects of which it seems this mighty Champion is to rescue the Government.  
And for me I am a Seducer, one who would seduce unwary Readers, 
Against Jani, p. 71.  a malicious insinuation, as if I would wheedle to my side a party against Truth and the Government; but whether he who would set aside the evidences for the Rights of the Lords, and Commons, or they who produce them fair, and would render them unquestioned, is guilty of the worst design, the World will judge; and I doubt not, but he has at home a thousand Witnesses, 
Conscientia 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 easy to conquer than to reconcile them.  
As on Mr. Petyts, and my side, the design can be no other, than to show how deeply rooted the Parliamentary Rights are; So the Doctors in opposition to ours, must be to show 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 Tenants in Capite were the only Members of the Great Council before 49 H. 3. and if others were after, 'twas by Usurping upon the Rights of Tenants 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 Tenants in Capite might be set aside if the King and his Council pleased, nor was any power given to others to choose till ●0 H. 6. c. 2. which gave no new power, 
ib. p. 79.  and the Lords depend upon the King's pleasure. 
ib. p. 42.  Therefore what the design is, 
ib. p. 227. & 228.  and at whose door the crime of it lies, the thing itself speaks, though 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 King's 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 pleased, as he observes in the Margin upon a Record▪ 31▪ E. 3. but he is not so Candid to observe, that though indeed at that time there was such a nomination, yet that was 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 Summoned, 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 called more to Advise with, and the Counsellors might well be of his own Choice.  
'Twill be urged that when the King appointed but one for every County, 
p. 242. 26 E. 3.  they were empowered to consent to what the Communi Consilio contigerit ordinari, 
p. 246. 27 E. 3.  and that such a Council made Laws, as the Statute of the Staple made the 21▪ of E. 3. to which the answer is very obvious, that they made only Ordinances, not Laws, and that these were Magna Consilia, taken in a sense totally different from the Generalia Concilia, or Parliaments, and all this appears above the power and subtlety of our learned Doctor's Evasions, in that the Record cited by himself in the 26 E. 3. calls the Assembly they are Summoned 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 mere 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 had be made against the said Earl Martial in great Council, 
Rot. Par. 3. H. 6. n. 12.  though he had be of full age, that might not disherit him without Authority of Parliament, these are uncontrollable evidences, and proofs against him, let him to save the great Credit of his Learning answer them if he can.  
But who is the new Government-Maker, and new Parliament-Maker, perhaps one might know from himself when he has considered a little better, and then he may think the Government, as 'tis now established, ●ighly concerned 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 King's 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 Summoned to Parliament, 
ib. p. 227. & 228.  or passed by, at the King's pleasure, and that if the King pleased, he might Summon one Knight for a County, 
ib. p. 249.  one Citizen for a City, one Burgess for a Burgh, and those named to the Sheriff.  
And this design will be very evident if we observe his airy ambuscade, to return his own phrase, and mere juggle in joining the King's 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 choosing, or without any. If the Doctor allows this power, doubtless the next Parliament will thank him.  
(2.) Suppose that without, or against the King's Authority, time only would establish this Great Council, can this be done? He that affirms it surely will be no great friend to Prerogative, nor understands he that Maxim,  
Nullum tempus occurrit Regi.  
And one of these must be closed 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 balance of power within this Nation) to be interested in the Legislature, which I 〈◊〉 not affirm. Or if there be such a positive right, not only from the Laws for frequent Parliaments, which suppose such to be Members as had been, but more particularly from the Law received in the 4th. of William the First, 
Rex debet omnia rite facere in Regno & per judicium procerum Regni.  and by positive Law or Custom the King used 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-natured to the Government, and so impotent in its settled 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 Records, etc. 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 deprived of all Shares, or Votes in making of Laws for the Government of the Kingdom, when ever any future King shall please to resume the Regality.  
Some perhaps may add an eighth; That the Parliaments are nothing but Magna Concilia, such as are called only to Advise upon what shall be given in direction, but no consent of theirs required to make the King's determination a binding Law.  
And Vice Versâ, every Great Council, such as that called 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. endure. l. 23. r. deposceret. p. 82. in marg. deal Shire after Cambridg. p. 100 l. 17. r. Sharnborn. p. 110. in marg. towards the bottom, add doomsday. 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, etc. ib. l. 25. r. Nocton.