Bibliotheca politica: or An enquiry into the ancient constitution of the English government both in respect to the just extent of regal power, and the rights and liberties of the subject. Wherein all the chief arguments, as well against, as for the late revolution, are impartially represented, and considered, in thirteen dialogues. Collected out of the best authors, as well antient as modern. To which is added an alphabetical index to the whole work.

THE Seventh Dialogue BETWEEN Mr. MEANWELL a Civilian, AND Mr. FREEMAN a Gentleman. (Book 7)

F.

YOU are welcome Sir, but I did not expect to see you again so soon.

M.

I beg your pardon if I come unseasonably, but the truth is, I have so great a desire to conclude what we began upon, that important Subject we last discoursed of, that I could not be at ease till I had done my endeavour to give you Satisfaction therein, if it be possible.

But to come to the matter that we now meet about, I must now tell you again, that tho' this your gloss upon King Iohn's Charter, seems plausible at first sight, nay, is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter; yet upon better consideration, I can see no good reason for making a full, or at least, a half stop in the 16th Article, after these words, omnes liberas consuetudines suas; adding the rest that follows, & ad habendum Commune Concilium, &c. to the following Clause, & de seutagiis assidendis, &c. much lest for supposing as you do, without any ground, that there were two sorts of Common Councils, one for Asses∣sing Escuage, and the other for Granting all other Aids and Taxes; and then, if read otherwise, it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown, and Assess Escuage ratione tenurae, which I am the more inclined to believe

from the fourteenth Clause here cited, which says. That no Scutage, or Aids shall be imposed, unless by the common Council of the Kingdom. Now to what purpose is this so-express'd, if there was to be one Council for the granting of Aids, and another for the Assessing of Escuage: So that if this Common Council of the Tenants in Capite might grant Aids, and Assess Escuage upon the Subjects (unless in the case before excepted) I see no rea∣son why they should not be the only Council, for the giving their Assent to Laws also; and consequently of concluding not only their own Tenants, but the King's Tenants in Petty Sergeanty and Socage, nay, the Tenants of any other Persons whatsoever.

And though I have seriously considered Mr. P's Append••x to the Rights of the Commons asserted, and Dr. b's Answer to it, as also his Animadversions upon Iani Anglorum. &c. Yet can I not see any colour of an Argument for making any distinction between the King's Curia of his Great Lords, and Te∣nants in Capite; and the Great or Common Council of the Kingdom, but that they were then all one and the same. It would be tedious to me, as well as you, to run over all the particular Authorities and Examples which have been urged pro and con in this Question. But I desire you, or your Friend Mr. P. to shew me that there was any Bishops, Earls, Barons, or other Mem∣bers of Parliament in the times we now treat of, that had any place, or Vote therein, but according to their Tenure, and the ancient Custom of all Feu∣dal Tenants, who by the German▪ Gothic and Lombard Feudal Laws (which in substance were the same with ours) were always summoned to the Court of the King their Supreme Lord.

But farther to prove that this Council for Assessing Escuage, was no other then the great Council or Parliament of those Tenents in Capite, appears from Li••tleton's ••enures, where in his second Book, Sect. 97. he tells us, That after an Expedition Royal into Scotland, Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition: so that if the Parlia∣ment did then Assess Escuage, I desire to know why they might not do it in the Reign of King Iohn? i•• this great Council of the Arch bishops, Bishops, great Lords and Tenants in Capite, were not the Common Council of the whole Kingdom in those Times? yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn, but that the King by his own Prero∣gative did often grant his Tenants in Capite a Power to take Scu∣tage of their Tenants without any Assent in Parliament,* 1.1 the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn.

Thus it was for Aids and Scutage Service, but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation, then the Tenants in Capite were not only the sole Grantors, but the Collectors of that Scutage too, from their Mesne Tenants: And the Writs to the Sheriff was different from these in Scutage Service,* 1.2 though the same in Substance; as likewise appears by those Records the Dr. hath there given us.

F.

I doubt not but I shall make good my Assertion, and shall be able to de∣fend what Mr. P. hath in his Learned Treatise asserted concerning this mat∣ter. In the first place, I must stick to that way of reading and pointing of this Clause in dispute, since it is not only agreeable to the Dr's Manuscript Copy, but also to the old French Copy, published by Father D'achery in his Spicilegium, vol. 13. which is written in the French of tha•• time: but to an∣swer your Objection against this Interpretation, you your self have in great part helped me to do it, by that true distinction you have now made be∣tween a Scutage as an Aid, or Tax, and as a Service, the latter of which you assert might be granted to the King, to be raised by his Tenants in Capite upon their under-Tenants, whereas the former was only grantable in Parliament by the Common Council of the whole Nation. Which Tax, I Affirm, was always granted to the King, and imposed by the Com∣mon Council of the Kingdom only, and not by the Tenants in Capite alone, before the Expedition was undertaken. Whereas Scutage Service (consider∣ed as a payment of so much Money) was never due or payable, till the Ex∣pedition was ended; and then only upon such as had failed to serve in Per∣son, or by sufficient Deputies; and was then to be Assessed by the Tenants in Capite alone.

And though I grant it may seem to have been a Prerogative as you call it, exercised by some of our Kings, sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants, without the Assent of the Great Council of the Kingdom; yet such Payments or Assessments were either according to Law,* 1.3 and the express Grant of this Charter it self; as is that Writ of King Iohn to the Sheriff of Glocester∣shire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber, Earl of Winchester, for making his Eldest Son a Knight, and which the said Earl, might have claimed of his Te∣nants by the Common Law, as also by the 20th Article of that Charter; but for Scutage Tax Littleton tells us, Lib. 2. Sect. 101. That because such Tene∣ments came at first from the Lords, it is Reason they should have Escuage of their Tenants, and the Lords in such case might destrain for the Escuage so Assessed by Parliament; or in some Cases they may have the King's Writ directed to the Sheriffs of the same County, &c. to L••vy such Escuages for them, as appears by the Register.

But if either King Iohn, or King Hen. III. granted Writs to levy Escuage upon the under-Tenants of the great Lords, and Tenants in Capite, without their own Consent in Parliament this ought to be no more cited as a Precedent, than any other illegal Acts committed by those Kings; since, as our Records and Histories tell us, it was such illegal Proceedings which were the cause of the Barons Wars. And it is expresly against the words of this Charter of King Iohn, which you have now quoted, viz. nullum Se••••agium vel Auxilium p••nam in Regno nostro, nisi per Commune Consilium Regni nostri.

So that notwithstanding all you have yet said, it doth not appear to me, how Scutage, when given as a Tax upon Knights ••ees alone, and to be levy∣ed not only from the Tenants in Capite themselves, but their under-Tenants

as also from the Tenants of them, who though they held in Capite; yet held not by Knights Service; such as were the Tenants in Pe••••y Serjeanty, and those who held of the King in Chief, as of several Honors, and not of hi•• Crown, as in Capite, could ever charge such Tenants without their Consent•• given either by themselves, or their lawful Representatives; much less could your Tenants in Capite Tax or Charge such as did not hold in Capite themselves, viz. Those Abbots and Priors who held Lands in Right of their Monasteries in Franc Alm••igne, and who together with their Tenants made at least two third parts of all the Abby-Lands in England; as also Tax'd those, who not holding by Knights Service at all, but by Tenure in Socage, or Fee Farm, did not hold their Lands, as Knights Fees, and therefore could never be Tax∣ed by your Tenants in Capite for so many Knights Fees, or parts thereof. And Braecton (who lived at this very time) has distinguish'd to no purpose between those Common Services which all Tenants owe their Lords, and the general Taxes, or Charges imposed by the Common Consent of the whole Kingdom.* 1.4 The words are very remarkable, pray read them. Sunt quaedam Commun••s praestationes quae ser∣v••cis non di••u••i••••, nec de consu••tudine ven••um nisi cum necessita•• intervenerit, vel cum * 1.5 Rex venorit, sicut sunt Hidagia. Corra∣ag••••, Carvagia, & alia plura de necessitate & ex consensu Communi torius Regni introducta & quae ad Dominum fe••di non pertinent. And therefore I cannot see any Reason why the great Lords, and Tenants in Capite should ever have Power to lay a general Tax upon the whole Kingdom, not the tenth part of which did then hold of them by Knights Service. So that nothing seems plainer to me, than that there was (us our ancient Historians tell us) a distinct Court, which was held anciently three times every year, viz. at Easter, Whitsuntide and Christ∣mas; and then the King was attended by all the Bishops, great Lords,* 1.6 and other Tenants in Capite, and this was called Curis, or Concilium Regis; and if any difference of Right did arise between the King and his Tenants, or between Tenant and Tenant; here it was to be heard and determined; and many other things were there u••ted and done, in relation to the King's Barons, or Tenants in Capite only.

But under Favour, this was not the Commune Consillum Regni, or Parlia∣ment (as we now call it) for the King held this Court ex More; or by Cu∣stom, without any Summons, as Simon of Durham, and Florence of Worcester, and divers other Writers of the Lives of our first Norman Kings do shew us. But when they take notice of the meeting of the Commune Con∣silium totius Regni,* 1.7 their Expressions after, and then they say, that, Rex ascivi, as it is in Ordericus Vitalis. Ex praecepro Regn convenerunt: or as E••••merus—Rex Sanctione sua adunavit. And Mat. Westminster of later times takes notice of this Union, or Meeting of this C••∣ria, or Assembly of Tenants in Capit, together with the Great Council or Parliament, in his History of Hen. III. Where relating how the King again confirmed the Great Charter in a Parliament, Anno Domini, 1252. being the 37th of his Reign, He hath these words, In quinden•• Paschae (Adunato

Magno Parliamento, &c.) So that it seems plain to me, that this uniting of the great or whole Parliament, must be understood the Conjunction of both Councils together; and therefore, when this Council of Tenants in Capite, that thus met ex more took upon them assess Escuage, and transact other matters of consequence, without the consent of the major part of the Te∣nants in Capite, who often failed to appear at these Courts, or Assembl••es held ex more, it was then and not before expresly provided by this Charter of King Iohn, that Escuage should not be assessed for the future, without Summons, or Notice given of it to all the Tenants in Capite, who had right to be there.

M.

I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite, distinct from the Parliament, and which met ex more, and that these were the Persons who were by this Charter to Assemble for the Assessing of Escuage, which is a meer precarious Hypothesis, nor can you, or those, from whom you borrow this Notion, make it out from any good Authority; for I have already proved, that the Barones Regis & Regni, were the same Persons, and that usually the Barons or Tenants in Capite of what Quality soever, did repair to the King's Court, at Christ∣mas, Easter,* 1.8 and Whitsunday, doth appear to have been the Custom of those times, from the Testimonies of our ancient Historians.

But to prove by examples, out of the Authors you your self have made use of, that the Bishops, great Barons, and Tenants in Capite, were then alone the great Council of the Kingdom,* 1.9 pray read Eadmerus speaking thus. Celebratum est Concilium in Ecclesiâ Beati Peiri in occidentali par••e juxta L••n••inum sita Communi Consens•••• Epis∣coporum Abbatum, & Principum totius Regni, & bui•• Conventui assuerunt Primates Regni utriu••que ondinis. And at this Meeting were present, the Prime Men of the whole Kingdom of both Orders, in this Council, the Bishops and Barons are called the Principal or Chief Men of the Kingdom, yet these were all the King's Barons, they all held of him in Capite, and so did all the Chief Men of the Kingdom. So likewise in another Meeting under this King Hen. ••, when Arch-Bishop Anselm was to give his Answer to the King, according ••o the Advice of the Bishops, and chief Men of the Kingdom: The same Author tells us of Anselm,* 1.10 that in Pascha. ad Curiam venit, Communis Concilii vocem unam accepit, &c. Now pray tell me what Common Council was this? Of the Bishops and chief Men of the Kingdom, that Anselm referred himself to? Was it not ex more by Custom? You cannot find in Eadmer any Summons to it, neither Rex as••ivit., nor praecep••o Regis convenerunt, nor Rex sanctione suâ adunavit. In short, not to multiply Examples, look where you will in Eadmerus, or any other of the ancient Historians you have cited; and you will still find, that the Persons who met ex more, and without any Summons, were the same who Assembled by the Kings Summons at other times, that is the Principes and Episco••i Regni, or Terrae, or called more generally, Pri••ates utriusque ordinis, or the Barones, or Majores Regni, who did at these great ••easts pro more, go to Court, and

hold a solemn Curia, or great Council there; And that these made up the Vniversity, or whole Body of the Kingdom; pray see what Matt. Paris says.* 1.11 In die Pentecostes Dominus Rex Anglorum Lo••∣dini Festum tenens Magnum, & serenissimum, ••unc compositâ per Regni Vniversitatem Eleganti Epistolâ, &c. This was about the Pope's Exactions as hath been before delivered: And Hen. III. in his Let∣ter to the Pope, calls the same Persons Magnates Angliae, which in his Let∣ter to the Cardinals, about the same matter, he calls Magnates Nostri, as you may see in the former Citations of them.

F.

But pray give me leave to ask you this question, might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the said usual Feasts, since it was so much for the conveniency of the Bi∣shops, great Lords and Tenants in Capite (who I grant, were then all Mem∣bers of the Great Council,) to meet all the rest of the Kingdom, or Repre∣sentatives of the Commons at the same time: Though the Writers you have quoted may not mention their being Summoned at all. And as for the Writs of Summons, those of much later Parliaments being lost, how can it be ex∣pected we should now prove their being Summoned so many Year before?

M.

I confess it might be so, that upon extraordinary business,* 1.12 and when the occasion was great, and the King desired a great and full appearance, they might also receive an express Summons at those times. But then I must desire you to shew us any mention of a Summons to any of these Common Councils, which when called at other times, are most constantly mentioned in this Author. And I desire to know of you what you will say to those words pro more convenit, which is spoken of the most general Councils, when the Community of the Kingdom met at the King's Court? You cannot deny, but that the Tenants in Capite, were the Kings Barones, Milites, Magnates, &c. Upon this we will joyn issue; And I affirm (without bringing Proofs which are infinite in this Case) that all the Bishops, Earls and Barons of England, did hold their Lands, Earldoms, and Baronies of the Crown, or (which is all one,) of the King, as of his Person, and that was in Capite.

William the Conqueror, as I said before, divided most of the Lands in England amongst his great followers, to hold of him; he made Earls and Barons, such as he pleased: They and their Descendants held upon the same Terms with the first grantors, which was, to find so many Horse and Arms, and do such and such Services; both Titles and Lands were Forfeitable, for Treason or Felony to the King, did Homage for them, and every Bishop, Earl and Baron of England was in those circumstances, and held of the King after this manner.

Other Lands were given to other Persons for meaner Services; as to his Woodwards, Foresters, Hunts-men, Faulconers, Cooks, Chamberlains, Gould∣sinlibs, Bayliffs of Mannours, in his own hands, and many other Officers, which in Doomsday-Book, are called, Terrae Thanorum Regis, and sometimes servientium Regis; And I doubt not, whatever the Notion of Petyt Sergeanty now is, but that originally, this holding of Lands was the true Tenure; not

but presenting the Lord with a Bow, an Arrow, a pair of Spurs every Year, &c. might also be called Petyt Serjeanty, though not so properly as the other.

F.

Not to multiply words to no purpose, I think your Reply is far from be∣ing Satisfactory; for in the first place, it is very unreasonable to demand, that we should now shew the express Summons to these common Councils which were not held de more; since you know that all antient Records of that kind are destroyed and lost; for if we could produce them at this day, the difference between us, and those of your Opinion, would quickly be at an end, as ap∣pears by those great Councils, which are said expresly, by the Historians I have cited, to have been summoned, and yet no such Writs of Summons are to be found; nor is it any good Argument, that because our ancient Historians mention no distinct Summons to the great Councils, when met at the usual times of the meeting of the Tenants in Capite, that there∣fore there were none such, since we find they often pass by much more mate∣rial Matters than this.

And though I grant that the Tenants in Capite were then part of the great Council of the Barones, Milites & Magnates Regni; yet does it not follow for all this, that none but the Kings Barons, and Tenants in Capite were Members of this great Council, since there might be in those times other Barons, or great Freeholders, who (though they held their Lands of the Tenants in Ca∣pite, yet) might be there as Knights of Shires, or else appear in Person at those Assemblies as well as the other; and besides, there were others, who, though they did not hold of the King in Capite, but of some great Honor or Castle, or else of some Abbot or Prior; yet were Men of very great Estates, and very numerous, all which must otherwise have had their Estates tax'd, and Laws made for them, without, nay, against, the consent of themselves, or any to represent them: Nor is your Assertion at all true, That William the Conqueror divided most of the Lands in England to be held of him in Capite. For besides those Servants and Officers you last mentioned, above two third parts of the Lands of the Abbies and Priories in England were not held, as al∣so much other Lands in Kent, and other Countries, per Baroniam, or Knights Service, but in libera Elecmosina only, or Socage, as I have already prov'd; and consequently neither they nor their Tenants could, according to your Hypothesis, have any Representatives in Parliament.

And farther, you your self grant, that those Lands you mention which were given out by your Conqueror, to his Woodwards, Foresters, &c. did not capacitate them to appear in Parliament, since their Tenure was only by Petyt Serjeanty, and not by Knights Service: Nor could they become the King's Tenants in ancient Demesne, because such Tenants held wholly by Socage Tenure; whereas it appears plainly by Littleton, that Tenants in Petyt Serjeanty were subject to Wardship, Marriage and Relief: So that whoever will but con∣sider, that near half the Lands in England were held by Bishops, Abbots, Priors, &c. and of whom not a third part held by Knights Service of the Crown; and will then likewise consider what a vast number of Tenants those Abbots, Priors, Deans and Chapters (who were not Tenants in Capite at

all) must have had; and who either held Estates in Fee, or else for Life, un∣der them in Socage, as well as by Knights Service; as also all the other sorts of Tenures I have already mentioned, which either held of the King as of some Honor or Castle, or else of other Mesne Lords by other Tenures than Knights Service, must certainly conclude, that not above one half of the Lands of the whole Kingdom was held either immediately of the King, or else of other Mesne Lords by that Tenure: So that if all these Persons which were far the greater Number of the Free-holders in England, should have been thus excluded from having any thing to do in our Great Councils, I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution; and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead, they would likewise have inserted a Clause for themselves, if they had not had their Suffrages there before, either by them∣selves in their own Persons, or by their lawful Representatives. And there∣fore upon the whole matter, I durst leave it to the Consideration of any un∣prejudiced Man, whether it is not much more probable, that the Constituti∣on of Knights of Shires, Citizens and Burgesses appearing in Parliament, should be much more antient then the time you assign, than that so small a Body of Men as the Bishops, Lords and Tenants in Capite should represent all the Freeholders and People of England, who never held of them by Knights Service at all. Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary. And whoever will but consult that Author in his Chapter of Tenures, will find, that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure, that in his Chapter de Tenuris, it appears, that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration, was lyable to no other Services and Conditions, than what his Tenure express'd; which once performed, the Lord had no more to say to him: and if so be he laid any further Burthens upon him, he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs; several Forms of which you may see in Glanville, and in the old Register.

M.

We are not to rest upon meer Probabilities, for some things that now appear to us unreasonable at this instant of time, might then be very just; for if the Feudatary Tenants of the Bishops, Barons and other Te∣nants in Capite were well enough contented with the Constitution of the Kingdom, as it then was; and that it plainly appears by matter of fact, that there was but one Common Council for the whole Kingdom; and that of the Bishops, Abbots, Great Lords and less Tenants in Capite only, it is in vain to argue of any unreasonableness in, or Inconveniencies that might arise from, such a Constitution, though perhaps a great part of the Kingdom did not hold in Capite, nor yet by Knights Service; and therefore though the Feu∣datary Tenants of the Tenants in Capite, were upon the performance of their Services acquitted of all other Charges; yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures, such as was Scutage Service, or the attending upon their Lords when they went out to War along with the King; but did not extend

to such Scutages as were granted in Parliament, or as a Tax upon Land by the common consent of the Nation; for then the Tenants in Capite were not only the Grantors, but the Collectors too, of such Scutage Tax, from their Military Tenants; and the Writs to the Sheriffs were different from those for Scutage Service; and for proof of this, I desire you would peru••e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year.* 1.13 Rex Vice Comiti Sussex salutem. Scias quod Archiepiscopi, Episcopi, Abbates, Pri∣••re••, Comites, Barones & omnes alii de Regno nostro Angliae, qui de nobis tenent in Capite, spontanea volu••••••te su••, & sine Con••uetudine, concesse∣runt nobis Efficax Auxilium ad magna Negotia nostra Expedienda, unde provisum 〈◊〉〈◊〉 de Consil••o illorum, quod habeamus de feodis Militum & Wardis, quae de nobis Tenent in Gapite du••s Marcas ad predictum Auxilium faciendum, & unde provi∣••erint reddere nobis unam medietatem ante Festum sancti Mic••aelis, Anno Regni 19. & aliam Medictatem ad Pasche, Anno Regni ••o∣sir••, 20. Ideo tibi precipimus quod * 1.14 ad Mandatum venerabilis Patris R. Cicestren. Episcopi Cancellarii nostri, sine dilatione Di∣stringas omnes Milites & liberos Tenentes, qui de eo Tenent per Servitium Militare in Balliva tua, ad redlendum ei de singulis fe∣otis militum, & Wardis duas Marcas, ad predictum Auxilium no∣bis per manum suam Reddendum in Terminis predictis.

Sic scribitur pro aliis Episcopis, Abbatibus, Prioribus & Magnatibus.

Now I desire you to tell me whether any thing can be more plain, than that this Tax was granted by a Common Council of the Kingdom, ac∣cording to that Clause of King Iohn's Charter, I have now cited: Where∣in it is first especially provided, that no Aid, or Scutage shall be imposed up∣on the Kingdom, unless by the Common Council thereof; and yet you see by this Writ, that the Archbishops, &c. with the Barons there mentioned, to∣gether with the other Tenants in Capite alone, granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King; and that by virtue thereof not only those Knights Fees they held in their hands, but also all those Subseudatary Tenants called here Freeholders, who held of them by Knights Service, were likewise charged for every Knights Fee, so held, the like Summ of two Marks. Now I think nothing can be more plain from this Record, than that this was a Common Council of the whole King∣dom, and yet consisted of Tenants in Capite only; and therefore I desire you to shew me some better Proofs than you yet have done, that these Tenants in Capite ever made a distinct Council different, from the Common Council of the whole Kingdom.

F.

I grant this seems at first sight to be a good Authority for you; but I doubt not for all that, to prove, that it makes wholly against you; and will, together with those Proofs I shall urge, make out this difference be∣tween the two sorts of Councils, I have already asserted; and therefore I must tell you, that there is no necessity of understanding the words de Consilio illorum (mentioned in this Record) to refer to the Common Council of the whole Kingdom, It not being here said to be

granted per Commune Concilium Regni, and then there can no more be proved from this Record, than that a Common Council of the Tenants in Capite, took upon themselves an unusual Power, sine consuetudine as the Writ here mentions in those times, to charge not only themselves, but their Under-tenants also, and that even this was an encroachment appears by the Statute, De ••••∣lagio non con••edendo, made 25th. of Ed. 1. whereby it is expresly forbid that any Talliage or subsidy should be laid upon the Kingdom sine volun••a••e & ••ssen•••• Archiepiscorum, Episcoporum, Comitum, Baronum, Militum, Burgensium & aliorum liberorum hominum de Regno nostro. Now pray read my Lord Cooks Reason in his 2d.* 1.15 Inst. why this Statute was made,

The 2d. Cause (says he) was that the King the Year before, had taken a Talliage of all Cities and Burroughs, without assent of Par∣liament, whereupon arose a great Murmuring and discontent among the Com∣mons, for pacifying which discord between the King and his Nobles, and for the quieting of the Commons, and for a perpetual and constant Law for ever after, both in this and other-like Cases, this Act was made, &c. being no other (then as the same Author tells us in the Conclusion of this comment on this Statute;) then a restitution general to the Subjects of all their Laws, Liberties, and free Customs as freely and wholly as at any time before, in bet∣ter and fuller manner than they used to have the same.

But yet, that this was no general Scutage or Tax upon the whole Kingdom, but only upon the Te∣nants in Capite, and their Tenants by Knights service, appears by the Writ it self. So that not only all the Persons I have already mentioned, who being Tenants to Monasteries and Priories, did not hold by Knights service, and all Tenants in Petys Sergeanty, and all Cities and Burroughs, who did not hold in Capite (who if they had not then Representatives in the great Council, were wholly Free from this Tax) and not only these, but all Tenants in Fee Socage, whether holding of the King, or of other Mesne Lords were wholly exempt from this Scutage▪ So that nothing seems plain∣er to me, than that this Assembly that gave the King this Tax for them∣selves and their Tenants, was a Common Council only of Tenants in Capite, charging themselves and their Tenants only, and not the whole Kingdom; and that done in a Case of great necessity, sine consuetudine: For if it had in∣cluded all the rest of the Kingdom, there would certainly have been some mention made, how all the rest of the Kingdom (which did not hold by Knights service) should be Taxed.

And that this was a Council consisting of the Tenants in Capite only may appear by a Record of the 42d. of this King, which I pray read. Rex Bar. &c. Quia per Commune Concilium Com. Baronum & aliorum Magnatum nobiscum in Walliâ nuper existentium provisum est;* 1.16 quod nos & ipsi qui servitium nobis fecerunt, ibidem habeamus Scutagium nostrum, viz. De Scuto 40 Sol. pro Exercitu nostro Wall. Anno Regni 41. Vobis mandamus quod de omnibus feodis Militum quae tenentur de Nobis in Capite vel de Wardia in manu nostra existentibus (exceptis Feod. illorum qui brevia nostra habuerunt de Scutag. suo babendo) l••vari fac. Scutag. nostrum.

From which Record, it appears, that this was only a Common Council of Te∣nants in Capite, who had attended on the King, and done their Service in this Welsh Expedition, and concerned none else but such Tenants by Knights Service and their Tenants who had fail'd to do their Service; and is just such a Tax as is expresly reserved by the last Clause of King Iohn's Charter, which you have before cited: whereby Scutage is to be assessed by all the Tenants in Capite.

And that not only the Spiritual and Temporal Barons, and Tenants in Capite did thus meet, and hold distinct Councils, or Assemblies for the granting of Scutage, but also that the Spiritual Barons and Tenants in Capite, did also sometimes hold separate Assemblies, appears by the Patent Roll of the 15. of this King, thus. Cum peteremus à Praelatis Angliae quod nobis Auxilium facerent,* 1.17 pro Magnâ necessitate nostrâ de quâ cis con∣flabat, viz. Epis. Abbatibus, Abbatissis, Prioribus & Priorissi qui de nobis Tenent in Capite ipsi Nobis liberaliter concesserunt Aux∣ilium tale, viz. De singulis Feodis Militum suorum 40••. de tos Feodis, de quot ipsi tenentur nobis respondere quando nobis faciunt Servitium Militare. Where you see not only the Bishops, and Abbots, but the Abbesses, and Prioresses granted a Scutage of 40 ••. upon every Knight's Fee (not which was held of them) but for which they were answerable to the King before, and though I do not suppose that these Women left their Nunneries, and appear'd in Person at such Meetings, yet they might very well do it, by their Oeconomy or Stewards, as their Lawful Proxies for Assemblys of that Nature.

But when a general Tax or Subsidy was granted by the whole Kingdom, the Stile of these Councils runs much otherwise, as appears by the Close Roll, of the 4th. of this King, where it is recited in the Record; that, Omnes Mag∣••ates, & Fideles totius Regni nostri, granted de qualibet caru∣catâ duos solidas.* 1.18 Now it hence appears that this was a grant of Caruage, which not being a Scutage service, nor yet a Tax by way of Scutage: and was therefore to be granted by the Common Council of the whole Kingdom, assessed, not only upon Tenants in Capite and their Feudatory Tenants, but upon each Plough-Land of the whole Kingdom, must have bin granted (as I have already pro∣ved out of Bracton, speaking of this Caruage,) de consensu & Communi consilio toti∣ut Regni; for otherwise these Tenants in Capite could never have charged all the Lands of England; of which, not half was held by Knights service. And to make it yet plainer by other Records, pray see another of the 16th. of this King, in these words. Rex Vice-comiti Devon. salutem sciatis quod Archiepiscopi Episc. Abbates,* 1.19 Priores & Clerici t••ras habent••s, quae ad Ecclesias suas non pertinent, Comites, Barones, Milites, Liberi homines, & Villani de Regno Nostro, concesserunt nobis in auxilium quadragessmam pariem omnium m••∣bilium suorum: So that it is plain here who made the Commune Concilium Regni, and gave this aid of a 40th. part of their Goods, viz. The Arch-bishops, Bishops, Abbots, Priors, Inferiour Landed Clergymen, the Earls, Barons, Knights, Freemen, &c. it being a Subsidy granted upon Goods, and not laid upon

Land, and that it may fully express all the Parties to the Grant, the Record tells us, there were also the Villani, the Inhabitants of every Village or Bur∣rough Town. And to let you see that our Ancient Manuscript Chronicles of this Age, give the same sense to the expressions of this Record, and that in the same Terms. Pray Read this Quotation which a Friend of mine took out of an Ancient Manuscript, called, Chronica Monaste∣rii de Hageny,* 1.20 in the Cottonian•• Library, as Ancient as the times are we are now treating on: the words are these, Anno 17. Henrici Regis 4ti. where note that the year is mistaken for 16. but the King is the same:) Henry the Third being of∣ten in that Age called the Fourth, in respect to King Henry, Son to Henry the Second, Idem Rex accepit ab Archiepis. Epis. Abbatibus, Prioribus, Clerici•• terras habentibus, quae ad Eccles. sua non pertinent, & ab Comitibus, Baronibus, Militibus, Liberis hominibus, & villanis de Regno Angliae in Auxilium quadragesi∣mam partem omnium mobilium suorum. And to let you see that this Author makes a plain distinction between the Tenants in Capite and the rest of the Kingdom, pray observe what immediately follows in the same place [ut] Anno. viz. 8vo. A quo communi Assensu, & voluntate Magnatum suorum, quam aliorum laicorum totius Regni quintam decimam Catalorum suorum universaliter accepit. Where note by accepit is still to be understood he received it, after the Peoples grant of it, as before in the Record of the 16. and that by Mag∣natum suorum is meant the great Lords and Tenants in Capite; and by aliorum Laicorum (put here as distinct from them) all other Orders or Degrees of men. Now pray, how could these Taxes upon the Goods of the whole Kingdom have ever been given, but by the general Representatives thereof (since all could not be there in Person) unless you can shew me, that men in those days, held their Goods and Chatels by Tenure in Capite.

M.

I think you and I may so far agree, that this Council I instanced in, consisted of Tenants in Capite only, and likewise that they imposed Scutage upon no others than their Tenants, by Knight-service, yet doth it not there∣fore follow, that they were not the Common Council of the Kingdom, or might not have Tax'd all others, though they were not their immediate Tenants as well as they did those that were: And therefore I am not con∣vinc'd, but that these Persons mentioned in the Records you have cited (which you grant constituted a Common Council of the Kingdom) were no other, than the same Tenants in Capite already mentioned, for as for the Fideles mentioned in the Record of 4th. Hen. 3. I think the Dr. hath very well proved, both in his answer to Mr. P. as also in his Glossary, that they were no other than the King's Tenants in Capite, and for this, pray con∣sider the Authorities he there gives us. For though I agree with you, that the word Fideles doth sometimes signifie generally, all those who are under the Power or Subjection of their Prince;* 1.21 Yet Hotto∣man also tells us, That, Fideles interdum specialiter dicuntur iidem qui Vassalli▪ Qui Feudo accepto in Patroni Fide, & Clientel•• sunt, vicissimque suam ei certi obsequii nomine Fidem astrinxerunt, and in this sense, I suppose, this word is to be taken in most of

our Histories and Records. I shall therefore give you one which will sufficiently clear the true signification,* 1.22 not only of the word Fideles, but of Liberi Homines too. It is in William Malm••bury in these words, Willi••mo Filio suo Cum vix 12. Annorum esset omnes Liberi Homines, &c. Cujuscunque ordinis, & Dignitatis, cujuscunque Domini Fideles, Manibus & Sacra∣mento se dedere coacti sunt. By which you may see that by the words Liberi Homines & Fideles are here meant only the Feudal, or Mi∣litary Tenants, either of the King or of any other Lord; And to prove it farther by Records, pray see here ••hose that the Dr. hath given us in the same place.* 1.23 The first is that of the Patent Rolls of the 15. of King Iohn. Rex Baronibus, Militibus & omnibus Fidelibus totius Angliae, Salutem. They were to hear what the Bishop of Winchester was to say to them about the Releasing the Interdict;* 1.24 and that these Milites and Fideles were only the King's Tenants in Capite, is clear from the lat∣ter part of this Record: Vnicuique vestrum si fieri potest Li∣teras nostras super hoc transmissemus, sed Negotium majori Festi∣••atione, &c. Teste Meipso apud Rupel. &c.

The King had writ to them all particularly, but that the business required greater haste. It seems before the granting of Magna Charta, this King sent special Summons, and particular Letters to his Barons, and other Tenants in Capite, to meet upon any occasion. So likewise in these Writs there mentioned to the Tenants in Capite of several Counties,* 1.25 as they are found in the close Roll there cited. Rex omnibus Co∣mitibus, Baronibus, Militibus & aliis fidelibus sui•• de Com. Ebor. Northumbr. Cumbr. &c. Vobis mandamus quod Prompti sitis, & Par••ti cum Equis & Armis, &c. These were the Feudataries and Tenants in Military Service.

But to speak somewhat of the Clerici Terras habentes, &c. as also of the Liberi Homines & Villani, mentioned in the Record of 16 Hen. 3. you have now cited. 1. I cannot allow your Version of those words Clerici Terras habentes,* 1.26 qua ad Ecclesias suas non pertinent, by Inferior Landed Clergy-men, since 'tis more than you can make out; for I take them to be such Clerks, as had Mannors and Free, or Military Fees belonging to their Benefices, and that held of the King in Ca∣pite, the Fee whereof was in the Crown, and not in the church, and therefore did not belong to it.

But Mat. Paris, fol. 377. informs us better who they were that gave this Tax, when he speaks concerning this very Council—ad Coloquium coram Rege convenerunt Episcopi, & aliarum Ecclesiarum Praelati, cum Proceribus Reg∣ni concessa est Regi quadragesima pars honorum.

Now what the Liberi Homines were in this Record, you have cited, we may easily guess from the other Records I have made use of in 19 Hen. 3. viz. such of those, Omnes alii qui de nobis Tenent in Capite, which were not Milites in a strict sense, or had not received the Order of Knighthood. And

I shall make out this sense of the words, as also of the true meaning of these Villani by another Record,* 1.27 dated but two years after this of yours. viz. 21 Hen. 3. Rex Vic. Kant. Salut. Sci••s, cum octavis Sancti Hillarii, &c. ad mandatum no∣strum convenirent apud Westm' Archiepiscopi, Episcopi, Abbates, Priores, Comi∣tes & Barones totius Regni nostri ut tractatum haberent nobiscum de statu nostro, & Regni nostri, iidem Archiepiscopi, Episcopi, Abbates, Priores & Clerici Ter∣ras habentes, quae ad Ecclesias non pertinent, Comites, Barones, Milites & Liberi Homines pro se & suis Villanis nobis concesserunt in Auxilium Tricessimam partem honorum.

From this Record we may observe, 1. That the King's Writ was only issued to the Arch-bishops,* 1.28 Bishops, &c. Earls, Barons of the whole Kingdom. 2. That in the recital of this Tax, the Sheriff is told, first, that the Arch-bishops, Bishops, &c. and the Clergy which had Land not belonging to their Churches (a certain sign that they granted by themselves, and out of nothing else, but that) and then that the Earls, Barons, Knights and Free men for themselves, and their Villains granted a thirtieth part of their moveables.

And from this Record it is also manifest, these Liberi Homines had Villa∣nos (if not Bondmen) Villagars or Rusticks, Colonos, or Husbandmen at least; of whose Estates by publick Assent, and for the publick benefit, they might in part dispose of; which Liberi Homines according to the Tenor of all our Records and Histories were Tenants in Capite; and that the Villani mentioned in the other Record of 16. Hen. 3. to have given a fortieth part of their Moveables, did grant by their Lords; that is, their Lords Paramount, that were Tenants in Capite, did grant for them, though they held it not immediately of them, but of other Tenants in Military Service, which im∣mediately held of the Tenants in Capite, who did charge them by publick Taxes, hath been shewn from divers Records: So that it was frequent in those times to say, such, and such, concesserunt, granted such a Taxe, that is, by those who had Power and Authority to do it for them; and without their consent too, when those for whom they granted were not capable of being Members of Parliament themselves. I could give you more Examples of the like Nature, but I will not tire you.

F.

I pray Sir give me leave to answer this long speech, and to begin with your Interpretation of this word Fideles, First then, we are so far agreed, that the word Fideles had two, or three, different Significations. First, it signified all the Subjects in general; in the next place, all Vassals, or Feuda∣tary Tenants whatever, whether of the King, or any other Lord, as appears by the Passage you have cited out of William of Malmsbury, as also divers antient Charters, particularly those of King William I. and Maud the Empe∣ress, and King Stephen, which are divers of them directed, Fidelibus suis, Fran∣cis & Angl••, which cannot mean Tenants in Capite; since the Doctor and your self will scarce allow any English Men to have then held Lands in Capite of the Crown. Lastly, I grant this word Fideles may sometimes signifie the Tenants in Capite of the King; all which being so, I think you cannot deny, that it

is not the bare word, but the sense it bears in the Places where it is used, that must direct us to its true Signification, and that the fideles there mention∣ed to have granted Caruage in the 4th of Hen. 3. could not be the King's Tenants in Capite only, I have given you a sufficient reason which you do not think fit to answer, viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom, as well what was held by Knights Service, as what was not; and how your Tenants in Capite could Tax those Lands which were never held by Knights Service, I desire you would resolve me. And therefore by the Fideles here mentioned in this, and many other Records, are not to be understood the Tenants in Capite only, but all other Subjects who did Fealty; who, though they could not all appear in Person in our great Councils or Parliaments, yet were there by their Representatives the great Freeholders, Lords of Mannors, or else by the Knights, Citizens and Burgesses.

But I must now make some Remarks, upon your Interpretation of ••he Writs of the 16th and 21th of Hen. 3. wherein you have certainly very much mistaken the sense of all the main Words. For in the first place, as for the Clerici terras habentes non ad Ecclesias pertinentes, which you interpret to have been Clerks having Mannors, and Military Fees not belonging to their ••enefices, but held of the King in Capite, seems to be altogether forced. For whoever heard of Clerks (that is inferior Clergy Men) Parsons, or Vi∣cars of Churches, who held Benefices of the King in Capite, and not in Franc Almoigne? or if they had any such, that therefore those Lands so held should be called, Lands not belonging to their Churches; for at this rate the Lands of Bishops, all Abbots, Priors, &c. which held of the King in Capi∣te, would have been in your sense, Lands not belonging to the Church; but who but you and your Doctor ever gave such an unreasonable Comment on those words?

Nor will that Passage you cite out of Mat. Paris, at all favour your Inter∣pretation; for either these Bishops and Prelates there mentioned, gave this sortieth part of their Moveables in Parliament, with the rest of the King∣dom, or else as Clergy men in Convocation: If the former, then these Cle∣rici could have no Votes there in Person; for I believe it would puzzle you to prove, that at this time any Ecclesiastical Person below the degree of an Abbot or Prior, had any place in Parliament, by reason of his Tenure by Knights Service in Capite, for those Lands he held in Right of his Church; but if you'll have this Tax to be granted by the whole Clergy in Convocati∣on, then such Clerks as you mention could not be there in Person: First, be∣cause they are said to be such as had Lands, qu••e ad Ecclesias suas non pertinent, and so could not have any place there as Clergy-men; nor could they be in∣cluded under the Praelati, since that word takes in none beneath the degree of a Dean. And therefore if these Clerks gave any thing in Parliament, they must do it by their lawful Representatives, the Knights of Shires; or if in Convocation, by their Clerks of the lower House, then called Procuratores Cleri: So that take it which way you will, those Clerks could not be present themselves at these Parliaments, when those Taxes of the 30th and 40th

part of their Moveables were given to the King; and therefore either as Lay-men or Clergy-men, must be Taxed by their Representatives; but in deed the words Proceree Regni, which immediately come after Episcopi & Pralati in Matth. Paris, sufficiently shews this grant was made in Parliament, that the word Proceres often includes, not only the Knights of Shires, but Citizens and Burgesses too, I have already proved, when I spoke of the various significations of that word. Nor is your Interpretation of Liberi homines, for Tenants in Capite, who Taxed their Villani, any other than a meer wresting of these words; for, if they were only those who gave for themselves and their Villaines, whom you suppose were either their Bondmen, or else their Rusticks or Husbandmen, it is absolutely contrary both to Law and Reason; for whoever heard that Villains or Bondmen, who had no property either in Lands or Goods, ever payed Taxes? And if you suppose that these Villani were only the Rustick Tenants in Socage by Villain Service of the Tenants in Capite, then it is plain, that all the Military or Feudatory Tenants of the Tenants in Capite, and all Tenants in Free Socage by certain Rent, were exempt from both these Taxes, since they are not so much as once mentioned in these Writs, nei∣ther can be comprehended under these Villani, as your self must acknowledge: For if these Villani were meer Rusticks, pray tell me what reason there was to put them check by Jole with their Lords, as they are in the Record of the 16th of Hen. 3. as if they had given by themselves as well as the rest of the Freemen of the Kingdom: Or what reason is there why the Lords (as the words are in your Record) gave pro se & suis Villanis, if the Liberi homines there men∣tioned, had not represented them; which could never have been said with any sense, had they been only so many Freemen, or Masters over their Slaves: where, as it here appeares, every one of these orders or degrees of Men here mentioned, had an equal independent Power to give for them∣selves, and not one for another: or else this word may be meant in a larger sense, as in the Record of the 16th of Hen. 3. where they are put in the No∣minative Case (as equal to the rest of the Orders of men there recited) and so could not be Husbandmen, or meer Villagers, but the Inhabitants pof Ci∣ties and Burroughs, and which sense Sir Henry Spellman allows in his glossary; Villanus est qui i•• Villa habitas ut Vrbanus ab Vrbe, &c. Villa autem propria ••••∣••at Viculum Rusticanum▪ sed a ••e more Gallici idiomatis eraducitur ad insignia oppi∣du, & ad ipsas vrbes: but take it in what sense you please, it is plain, it could never here mean meer Villagers; nor could all your Liberi homines ••e only Tenants in Capite; for then the Record would have concluded thus; & Libe∣ri homines, qui de nobis tenent in Capite; as it is in the Record you have cited of the 10th of Hen. 3. to the Sheriff of suffex, and may be found in many other Records, which respect only Tenants in Capite: And for further proof of this sense of the word Villanus, we need go no farther than these very Re∣cords themselves, of the 16th and 21th of Hen. 3. which you and I have now made use of; in both which Writs there are certain Persons appointed to Ass••ss and Collect the Aids in every County, and who, by Vertue of these Writs, did cause to be Elected four of the best and most lawful Men, de singu∣lis Villis of each hundred in the Counties there mentioned; and then the Vil∣lani

will signifie in these Writs, not Villaines or meer Rusticks who were not then reckoned inter L••galea homines. And though 'tis true you have brought some Presidents to prove, that the Tenants in Capite gave Taxes for their Feudatary Tenants; yet that was only where the Tax was raised upon Knights Fees alone, and not upon all the ••ands of the Kingdom in general, much less upon Goods and Chattels; so that either the Liberi Homi-nes mentioned in these Records, must mean all the Freemen of Eng∣land, who by their Representatives gave these Taxes of a 40th or 30th pa••t for themselves, and all such of their Tenants, who held Estates of Copy-hold Leases, for Years, or at Will, or had Estates in Stock, Money, or other Chattels; nor otherwise could these Taxes ever have been general, not charged upon moveable goods of the whole Kingdom.

I have but one thing more to remark upon your Observations of this Writ, which is, that whereas you take notice that the King's Summons was directed to none of the Laity but the Earls and Barons of the Kingdom; and if so I desire you to prove to me, that your less Tenants in Capite were at all present at those Parliaments; for you have already granted that they were no Barons, and consequently could not be included under that Title; so that if these Liberi Homines who granted this Tax for themselves, and their Tenants, were not only Tenants in Capite, but their under Tenants also by Military Service; (as the Doctor himself grants in his Answer to Argumentum Antinormannicum.) p. 25. as also in his Glossary, p. 51. therefore unless you can prove that your Liberi homines were all Tenants in Capite, you will never make out that none but they, and the less Tenants in Capite had a right under that Title, to appear at our great Councils or Parliaments; and to grant Aids, and joyn in the making of Laws for themselves, and the rest of he Nation, before the times you allow. To conclude, unless you can also prove that there was a Tenure in Capite of Goods and Chattels, as well as of Lands, it will appear by these Aids granted in Parliament of Personal Estates, that all Freemen or Free∣holders were alike Free, and consequently had the same right to appear in Parliament, either by themselves, or their Representatives.

M.

But pray make out if you can, by some more evident Proofs, that any others besides Tenants in Capite, were admitted into our great Councils; and that these Liberi Homines were not Tenants in Capite.

F.

I think I need go no further than the first words of the Agreement between King Iohn and the Barons which is still extant on the close Rolls of the 17th of this King, (m. 2. dorso.) beginning thus, Has est conven••io inter Dominum Iohannem Regem Angliae ex una parte, & Robertum Filii Walteri, Ma∣rescalli exerci••us Dei, & sanctae Ecclesia Angliae, & Ric••. Comi••em d•• Clare, &c. and here follow the Names of divers of the rest of the Earls and Barons, & allos Comites & Barones, & Liboros Homines totius Angli••e; so that it is clear, this Charter was granted in a great Council of the whole Nation, in which were assembled not only the Bishops, Earls and Barons, with all your less Tenants in Capite, but also all the Clergy, as well the Inferiour as Superiour, and all the Freemen or considerable Freeholders of the whole Kingdom; or, as Mr. Selden words it in his Titles of Honour, fol. 586, 587. it was made by

the King and his Barons, and the Freemen of the Kingdom; which Assem∣bly Matt. Paris expresses more succinctly by these words, tota Nobilitus An∣gliae in unum collecta, quasi sub numero non cadebit; so that nothing can be plainer than that many other, besides your Tenants in Capite, appeared at this great Council.

M.

In the first place, before I answer the main of your Argument, give me leave to tell you, That I cannot allow this Assembly at Runne Mead to have been truly a great Council of the Nation, but rather a Rebellious Armed Rout met together without the King's Writs of Summons, and indeed, whe∣ther he would or not; and I suppose you will not assert that any Representa∣tives had Votes therein; nor can you shew me that any Knights, Citizens or Burgesses were summoned to it.

F.

I grant indeed that that Assembly was not properly a Parliament, I mean such as we have at this day, as not being called by the King's Writs; yet since almost all the Bishops, Earls, Barons, Tenants in Capite, and all the rest of the Kingdom, were then in Arms, it may very well be reckon'd a Common Council or Solemn Convention of all the Freemen of the whole Nation, and that after the most antient manner; since all, or the greatest part of the Free∣holders of the Kingdom were there present in Parliament; and that this Council is look'd upon as a Parliament in the Eye of the Law, appears by a Writ to the Sheriff of Northampton-shire, which is found in the close Rolls in the 28th of Hen. 3.* 1.29 to this Effect, That he should not permit any one in his Bailiwick to use any Liberties belonging to the Crown, unless they had formerly been used ad Tem∣pus Parliamenti de Runne Mead; quod fuit inter Dominum Johannem Regem Patrem nostrum▪ & Barones suos Angliae.

M.

I see that you are forced to confess, that this Assembly was no Parlia∣ment in the sense we now take that word, nor indeed could be any more than a Rebellious Rout there met, whether the King would or no; and therefore the word Parliament is not to be understood in this Record, in the sense we now take it, since that word came not in use here (instead of Magnum Concilium,* 1.30 & Commune Concilium & Colloquium a Conferrence) until about the middle of Henry III. Reige, and doth no more point out the constituent Members of it, than that word did at that time: And so the meaning of the word Parliamentum is to be taken in this Record.

F.

I think I have very good reason, notwithstanding what you have now said to affirm, that this was a great Council or Parliament accoding to the Mode of those times; And tho I grant it was not called by the King's Writs, since it is certain he avoided calling any, because he utterly refused to grant this Charter at all, yet that is not material, since they, being a general and full Assembly, or Convention of all the Estates of the whole Nation, had a just right to meet and vindicate their Liberties then out-ragiously opprest, and trodden under foot by the King; and the King himself owned them as a lawful Assembly,* 1.31 by sending to them, and appointing them to meet in Runne Mead between

Staines, and Windsor on the 15th. of Iune, which our Historians tell us, they joyfully obeyed, so that he himself admitted them to be a lawful Assem∣bly of Estates, and consequently for his Parliament as appears by the agree∣ment now cited.

M.

I shall not much trouble my self,* 1.32 whither this was pro∣perly the great Council or not: But however, I cannot see how Mr. Selden could make out, that this Charter was made by, or to all the Freemen of England; for it seems to me that there was not the least ground for it. For if under the words Liberi Homines, all the Freemen, or Free-Tenants of what condition soever, were comprehended; yet her is nothing in this Record that any way proves that they had any hand in mak∣ing this Charter, but the Liberi Homines, here were only those whom the King calls Liberi Homines Nostri in his Charter, and immediately grants them several Relaxations of their rigid Feudal Tenures, by which 'tis apparent, these Liberi Homines were the Tenants in Capite, and yet nei∣ther was the Charter made by them, as is before intimated; Tho I confess these were the Freemen which made such a Cry for their Liberties (most of which were but an Abatement of the Rigour,* 1.33 and a Relaxation of the Feudal Tenures, as appears by the Charter it self) the rest were only Followers, and helped to augment the Noise, they were no Law-makers as you imagine; for 'tis not probable, that those Men that had the force of the Nation in their hands, would per∣mit Men of so small Reputation to share with them in Law-making: Those that had the Power of this, and other Nations de Facto, always did give Laws and Tax the People.

F.

Supposing this, (as I have already proved it,) to be a Lawful Common Council, or Parliament of the whole Kingdom, I think I may still affirm that this Charter was made, not only by the King, but by the Bishops, Earls, Barons, and all the Freemen of the Kingdom, who certainly gave their Assent to it by drawing it up into Form, and by accepting it from the King, when past under his Seal, as truely as the Magna Charta's of King Hen. III. and Edw. I. are called Statutes for the same reason, as I have already proved to you, or as much as the Petition of Right granted by King Charles I. was a Statute, tho past under no other Form.

Nor were the Liberi Homines totius Regni to whom King Iohn granted this Charter, no other than the Tenants in Capite as you suppose since in the time of Henry II. this Kings Father, the word Liberi Homo was taken in a much larger sense, as appears by the Assize of Arms, ordained by this King (as it is recited in Hoveden's History) where after it is appointed, what Corcelets, Helmets and other Arms, every Tenant in Capite should find, it immedi∣ately follows thus; Quicuncque liber Laicus habuerit in Catallo vel in redditu ad Valentiam 16. Marcarum habeat Loricam, & Cassidem & Clypeum & Lanceam; Quicunque Liber Laicus habuerit in Catello ad Valentiam 10. Marcarum habeas Habergellum, & Capelet Ferri, & Lanceam: & omnes Burgenses, & tota Communia liberorum hominum habeant Wambais, & Capelet fervi & Lanceam▪ Where you may observe, that every Freeman who was worth in Rent or Goods to the value of 16 Marks, was to find as much Arms for the Defence of the King∣dom

as he that possessed a whole Knights Fee; and the meanest Townsman, and the whole Commonalty of Freemen (for so I translate the Words, 〈◊〉〈◊〉 Libe••orum hominum) were to find a Caplet or Head piece of Iron, be∣sides other Weapons. And the 2d. Article of King Iohn's Charter says ex∣presly, Concessimus etiam & omnibut Liberis Hominibus Nostris Regui Anglia, pro Nobis & Hae••elibus Nostris in perpetuum omnes Liberates subscriptas, ••abe••∣das & ••enandas eis, & haeredibus ••uit de Nobia & H••rodibus nostris: Which the Dr. himself renders thus. We have also granted to all our Freemen of the Kingdom of England, &c. And sure then this Charter could not be made to none but Tenants in Capite, unless you will suppose that none but they were Freemen, and all the rest Slaves.

Nor was this Charter only made to relax the severity of the Feudal Te∣nures as you suppose, since there are divers other Clauses in it which con∣cern all the rest of the Freemen, and Free holders in England as well as they, for besides the first and second Chapters of this Charter, which grants and confirms to the Church of England, and to all the Freemen of the Na∣tion their Rights, and Liberties; If you please better to consider it, you will find, that there are several other Chapters in this Charter, which all other Freemen, as well as the Tenants in Capite have thereby an Inte∣rest in, as you may see by the 10, 11, 12 13. 15, 16. 22, 23, 24, 25. and above 30 other Chapters, or Clauses therein exprest which are granted, not to Tenants in Capite alone, but either to Ecclesiasticks, or other Lay Free∣men of the whole Kingdom. But to prove this a little further, I shall give you but one or two instances out of this Magna Charta; and that too in the Drs. own Translation, Article 48.

No Freman shall be taken or imprisoned or disseised of his Free Tenement, or Liberties, or Free Customs, or Out-Lawed, or Banished, or any ways d••stroyed, nor will we pass upon him, or commit him to Prison, unless by the Legal Judgment of his Peers, or by the Law of the Land (i. e. by Legal Process.) The other is the 49. Article of this Charter, that we will not sell to any Man, we will not deny any ma••, or delay Right or Justice:

Now Judge your self, whether these two Articles were made to the Tenents in Capite alone, or to all the Freemen of the whole Kingdom.

And hence it also plainly appears that the same Body of Freemen to whom this Charter was made, were likewise present and gave their Assents to the making of it: Nor were Vavasors, or Fendatary Ten••nts of the Bishops, Abbots, great Lords and other Tenants in Capite, Persons so inconsiderable as you would make them, that they only should come hither, but as followers, to augment the Noise, since I have already proved from Bracton, that there were divers of them, Men of great Estates, and Power in their Countries, besides the Tenants of those Abbots and Priors who (as I have already mentioned) did not hold in Capite of the King at all, and yet made a great Part of the King∣dom, besides Tenants in Pety•• Serjeanty, and those that held of great Ho∣nours, who could never be represented by the Tenants in Capite at all. And therefore I must (notwithstanding what you affirm to the contrary) look up•• on all these Persons, for as good Law-makers as the greatest Lords or T••nants

in Capite of them all; since the main force of the Nation did not lye in them, but in their Feudatary Tenants, who would never have followed their Lords in this Assembly, if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded (as appears by this Silvo of all their Liberties) as their Lords themselves; and also as good a Right as they in giving their Assent to them, when they were to be pass'd into a Law, as they were by this Charter; since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions, but where the King, or his Lieutenants went out in Person.

M.

I am very well satisfied, that this could be no Parliament for the reasons already given, and tho I grant that these Charters were made to, and in the Presence of the greatest part of the Clergy, Earls, Barons, and Freemen of the Kingdom; yet this proves not that they had any Vote, or Suffrage in making of them,* 1.34 nor indeed could they, for the great Charters were only the Petitions of the People drawn into the Form of a Charter, and passed under the King's Seal, as his meer voluntary Free Grants and Concessions, without any Votes or Authority from the People: And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will, as it is in the Pre∣face to it. But pray answer me a few plain Questions concerning King Iohn's Charter; which if you can resolve, I may be inclined to believe there might be some other great Council besides that of Tenants in Capite. The first is, if this Common Council of Tenants in Capite, were for As∣sessing of Aids and Escuage only (as you suppose it is pro∣vided by the last Cl••use of this Charter) why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite;* 1.35 if they were only Summoned about Aids and Escuage, or other ordinary business of Course, sure then the Cause of Sum∣mons need not to have been declared as it is here provided. In omnibus Lit∣••er is Submonitionis causam Submonitionis illius exponemus?

F.

I will give you an answer to this Question immediatly, but before I do it, let me tell you that you are much mistaken, in saying, that the great Charters (because they were the Kings Free Concessions) were therefore pas∣sed without any Votes, Suffrages, or Authority of the People of England: Since I have already proved in our discourse concerning the legis ••••tive Power, that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest; and that the Peoples consent, and Suffrage was sufficiently given in their drawing them up; and offering them to the King to be Sealed, and accepting them from him when he had done it: And therefore that the great Charters are always called Sta∣tutes in our Ancient Records and A••••s of Parliament. But to answer your Question, I suppose that the King, besides the ordinary business of their As∣sessing Escuage had often other affairs of great moment to be transacted with, and Communicated to his Bishops, great Lords, and Tenants in Capite, in which the rest of the Kingdom were not at all concern'd, such as giving the King their Advice, as a great Council, concerning divers weighty Affairs (as

in the business of Sicily, mentioned in the first Record I have cited)as also about undertaking Forraign Wars against France, Scotland, Wales, &c. in which they were bound to follow, and assist him together with their under-Tenants according to their respective Tenures, and therefore it was but rea∣son that they should have timely notice that they might give their advice in it, as also that they might either come, or stay away, according to the greatness or urgency of the occasion, and might also give their Under-Tenants notice to provide themselves with Horses and Arms, and all things necessary in case a War should be agreed on, which I think are sufficient reasons for thus expressing the Causes of their Meeting in the Writs of Summons.

M.

Admit this were so, (which I shall yet take further time to consider of) pray tell me in the next place, if all your inferiour Barons, Vavasors, or Lords of Manours, &c. supposing them either to have appeared in Person, or else as chosen for Knights of Shires, or else as Citizens and Burgesses, who were the Members of the great Council of the Nation; I pray tell me why there should not have been the same care taken, that they might be also Sum∣moned 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 Country busine••s to Travel from one remote part of England to another, to these great Coun∣cils, which seldom continued above three or four days, if they had had a Right so to do?

F.

I shall answer you in few words, because it was not at all necessary to express that Clause you mention for them all: Since it was sufficient therein to follow the old Course of Summoning the Common Council of the King∣dom; for doing which it had always been the Custom to give sufficient No∣tice by Writs of Summons of their Meetings, whereas in this Council of Te∣nants in Capite, Since there was by this Charter some al∣teration in the manner of their Summoning,* 1.36 so there was al∣so for expressing the cause of their Meeting: For whereas be∣fore that (as the Dr. himself allows) all the Lesser Tenants in Capite, had par∣ticular Letters or Writs of Summons expressing the Cause of their Meeting, they were for the future to be Summoned by general Writs directed to the Sheriffs, and therefore it was but reason, that there should be a particular Clause reserved for their general Summoning, which there was no need of in those Writs that were Issued for the summoning therest of the People, or Com∣mons to the great Council or Parliament, as I doubt not but it would appear, in case we had those Writs to produce, in which likewise there was anciently often exprest the particular cause of their Meeting, as there was, for instance, in those famous Writs to the Lords and Commons of the 49. Hen. III.* 1.37 which the Dr. hath given us in his answer to Mr. P.

M.

But I have still a greater objection behind than either of the former. You cannot deny, but that by the first clause of King Iohn's Charter (which I have made use of) all Aids, and Escuages, were to be im∣posed by the Common Council of the Kingdom; and Littleton himself tells us, in the second Book of his Tenures, That Escuage is always to be Ass••ssed by Par∣liament upon those that failed to do their Services after the Expedition was ended.

Now if this had not been a Right Inherent to the Great, or Common Council of the Kingdom, but that the Tenants in Capite alone assessed it in King Iohn's time; how came they to lose that Priviledge, and the great Council of the Kingdom, or Parliament to get it, if the former had not been the only great Council at the first?

F.

I hope to give you as satisfactory an answer to this, as I have to the rest of your Demands. This alteration might have fallen out two ways, either according to Camdens old Manuscript Author, cited in his Intro∣d••ction to his Britania;* 1.38 the Summ of which is, that when King Henry III. after his great Wars with Sim. Momford, and the Barons had Ruined many of them, he out of so great a Multitude which was before Seditious and Turbulent, called the best and chiefest of them, only by Writ to Parliament, who after that time became Barons by Writ, and not by Tenure as they were before. And as for the l••sser sort of them, called ••••ones Minores, they might be wholly resolv'd into the Body of the Commons, or ordinary sort of ••ree-holders, and the King being fearful of any farther encrease of Power in these Barons and Tenants in Capite might no more desire their Company at the usual Feasts of the Year, whither before they used to come ex more, and so their Power fell of course to the Council or Parliament, of which, before, they only made a part.

Or else it might happen from the negligence of the Tenants in Capite them∣selves, who growing weary of their Attendance might neglect to come to those Councils, because of the great trouble and charge of those Journeys; and the King being as willing to dispense with their Presence, this Court was lost by Non-usage; and so the judicial part of it remained in the House of Peers, and that of Assessing Escuage, and advising and giving Aids in matters of War, fell wholly to the great Council of the Kingdom, of which these Tenants in Capite, by their being capable of being Elected Knights of Shires, soon became the Principal Members.

But, admit I should take this Council for Assessing Escuages for the Com••on Council of the Kingdom; pray give me leave to ask you one or two Questions likewise in my turn. Pray tell me therefore, if this Council had been such as you would have it, to what purpose is there a full Stop in all the old Coppies, at the end of this Clause, & ad babendum Commune Concilium leg••l de Scutagiis assidendis ali••er quam in tribus Casibus praelictis, and why ••ould the next Clause begin with, & de Scutagiis assidendis submoneri faci••••us, 〈◊〉〈◊〉 if they had been both one and the same Councils. Since it had been easier to put it all under one Clause, If the matters ther•• Treated of had been the 〈◊〉〈◊〉?

In the next place, pray tell me if this were the great Council of the King∣dom or Parliament as it is now called; why are there no other Rights or Pri∣viledges reserved to this Council, but this of Assesing Escuage? Were not the Powers of granting other Taxes (which could not be included under the word Escuages▪) and also of giving their Assent to Laws, things of as great (say greater) moment than this of Assessing Escuage?

M.

I shall give you as short and satisfactory an answer as I can to those Queries. In the first place, I will not deny, but that both the Clauses you mention might have been contracted into one, supposing them to be read without any full stop between them, as Sir H. Spellman in his Glossary sup∣poses them to be. But what is this to the purpose? Must these therefore be two distinct Councils, because the Charter it self words them a little more loosely than it needed to have done? And as for your next Query, there was no need of inserting any Clause to this Charter of reserving or conferring any Power to this Common Council, of granting Taxes and giving their Assent to Laws, because they were things which at that time they had no reason to com∣plain of, since we do not read that King Iohn (as Arbitrary as he was) ever took upon him to make any new Laws without their consents; and besides, it was implicitly reserved to them by the last Clause of this Charter, viz. Saving to the Arch••bishops, Bishops, &c. Earls, Barons, Knights, and all others, &c. the Liberties and Free Customs which they had before. So that there was no need of any other Clause than this, because it had been, not only the Custom, but the Law of the Kingdom, for the King to lay Taxes, and Assess Escuage up∣on the Nation without the Consent, or Assistance of this great Council, which grew now so great a grievance, that they would not be contented, untill the King by this Charter had renounced it.

F.

I shall not now trouble my self or you, to confute this mistake of yours; That the Kings of England could legally raise Taxes upon all their Sub∣jects without consent of their great Council, or that they ever exercised such a Prerogative, unless it were in the violent Reigns of the Two Williams, and then if it was ever done, it was only upon their English, and not their Nor∣man Subjects; the latter being exempt from it by the very Magna Charta of King William I. by your own confession: Nor would they, I believe, have born it at his hands; but I shall speak more particularly of this another time. Only pray give me leave to ask you this one Question? If this Charter of King Iohn had been intended as a constant standing Rule or Form, not only for this, but all succeeding Common Councils or Parliaments, what could be the reason that this Clause you so much insist upon, of Summoning all the Tenants in Capite, should be omitted in the great Charter of Hen. III. granted In the 2d. Year of his Reign, and but Three Years after the 17. of King Iohn, (when these Charters were first granted) as also when it was again confirmed in the 9th. of Hen. III. For can any one of sense imagine, that so material a Clause as this, and so express for the Rights and Priviledges of the whole Body of Tenants in Capite, as the sole Representatives of the whole Nation could have been omitted, had they alone in those times constituted the com∣mon great Council of the whole Kingdom? How comes it to p••s••, that in all the Records of Hen. III. Reign, wherein this Charter is mentioned; It is always recited Magna Charta Nostra, viz. his own Charter, without taking notice of his Fathers? I should be glad to receive a satisfactory answer to this Question from your self or any other intelligent Person.

M.

I hope I may give you a satisfactory answer to this Scruple, which I think may be thus satisfied; I conceive that the first great Charter we have,

which is commoly attributed to Henry III. and stiled his Charter in our Sta∣tute-Books was properly the Charters of Edw. I. or perhaps, rather his Ex∣plication or Enlargement of those Charters of King Iohn and Henry III. For we find not the great Charter, either of that or King Iohn's, in any of the Rolls, until the 25th. of Edw. I. and he had a greater Summ of Money for confirming this Charter than Henry III. had. Now in this Charter then confirmed, there is no Provision made for any Summons to great Councils or Parliaments, and the reason may well be, because the constitution of great Councils or Parliaments was lately changed, from what it was in the beginning of King Iohn's time, and till the 49. of Henry III. nor perhaps was it so fixed and peremptorily resolved on at this time, what it should exactly be for the future, as to have it made an Article of the Charter, and to this conjecture the frequent variations of Summons to Parliaments in those times do give a probable confirmation.

F.

I am not at all satisfied with this supposition of yours. For I doubt not but to prove that it is altogether vain, and grounded upon no good Authori∣ties, either from History or Records, but I shall shew you before I have done, that the Magna Charta which we have still upon Record, by Inspeximus of Edw. I is the very same, word for word, in all the material parts of it, with that of Hen. III. both of the 2d. and 9th. Year of his Reign, and that there was no alteration at all made as to the manner of it, a Summoning or chusing Members of Parliaments from the beginning of this Kings Reign to the very end of it: Nor yet in the time of Edw. I. as you suppose.

M.

I should not be displeased to see that proved, though I think I am able to shew you the contrary. But before we proceed to that, I must needs tell you, I am not yet satisfied, that there ever were anciently two Councils, one of the Tenants in Capite, and the other, of the whole Kingdom; for methinks not only your self, but Mr. Petyt and Mr. Atwood his second have fallen very short of their proofs they have brought in this point; and there is nothing in the Drs. whole answer to them, in which (in my opinion) he hath obtained a clearer Victory, therefore pray give me some better proofs of this distincti∣on, if you have any.

F.

I did not imagin I should have needed to have spoken any further up∣on that head; yet since you now require it, I shall obey your commands: Since therefore you tell me that the times before your Conquest are obscure, and the Authorities uncertain; I will give you a short History of these Councils, beginning with King William I and so going down as low as Henry III. So f••r then we are agreed; that the Council of Tenants in Capite met ex more at the great Feasts of the Year; and that they also granted the King Aids, or Subsidies to be Levyed upon themselves alone; as I grant, appears by the Writ of 19th. of Henry III. which you have but now cited, directed to the Sheriff of Sussex.

But that this Council which was thus held ex more, was also often Summon∣ed to meet at other times when the Kings occasions required it,* 1.39 it also as certain as appears by this Writ of the 26. of the same King, which I shall read to you, Rex Vice-comiti Nor∣thampton,

&c. Praecipimus tibi sicut alias praecipimus, quod Summoniri facier Archiepiscopos, Episcopos, Comites, Barones, Abbates, Priores, Milites, & libe∣ros homines qui de nobis Tenent in Capite eodem modo scribitur omnibus Vice-comi∣tibus Angliae: Which Writ extending only to those who held in Capite could never be a Summons to the Common Council of the whole Kingdom; for then this restriction had bin needless, qui de nobis Tenent in Capite, and it would have been known who had a right to come to this Council, if these words had not bin inserted, so that this seems to me to make a plain distinction be∣tween these Liberos homines qui de nobis Tenent in Capite, and the rest of the Freemen of the whole Kingdom.

But when Eadmerus and other ancient Historians mention the great or Com∣mon Council of the whole Kingdom (afterwards called the Parliament,) then their expressions are more general and comprehensive; for proof of which,* 1.40 pray consult the Old English Saxon Annals, continued down to the time of Henry I. wherein Anno. Dom. 1085. (being the last Year of William I.) there is a remak∣able passage which I shall here give you in English;,

At Chri∣stmas, the King (viz. William I.) was at Gloucester with his Nobles, and there held his Curia or Court (in Saxon (his Hired) Five days; and immediately after it follows thus:) After this he held a great Council [in Saxon, Mycel Getheat] where he had many great Discourses with the Nobles, &c.

Now it seems plain to me, that this Court (here called his Hired) could not be the great Council of the King∣dom; for to what purpose should it meet again so quickly, if it had the great Council of the whole Kingdom? or, why are they here called by different Ti∣tles, the one his Hired or Court, and the other the Mycel Gathea••,* 1.41 the great Council; which is also called commune Con∣cilium totius Regni, in Sir Henry Spellmans Councils in this ve∣ry Year.

And to shew you more plainly the difference between this great Council of the whole Kingdom, and the lesser Council of the Kings Barons and Tenants in Capite: Pray see Eadmerus, who relating what was done in a great Council held at Easter,* 1.42 immediately before the Invasion of Robert Duke of Normandy, in the 2d. Year of Henry I. says, there met tota Angliae Nobilitas, cum Populi numerositate, and then Arch-bishop Anselm engaged for the King that he should Govern the Kingdom according to the just Laws thereof, where you see, that besides the Noble men and Gentlemen here called, Regni Nobilitas; there was also a great number of the Commons here termed in the Barbarous Latin of that Age, Populi numerositas.

But when the King held his Curia of the great Lords and Tenants in Capite alone, the expressions are more particular, as may appear by many Charters of our first Norman Kings to several Abbeys of their own Foundation, which are said to be made Consilio, & Assensu Baronum nostrorum tam presulum quam Laicorum, as you will (for example) find it in the Charter of Hen. I. to the Ab∣by of Abington; as it is exemplifyed in the ancient Manuscript Register of

that Abbey now in the Cottonian Library, in which Book you will find more of the like Nature, which plainly make out this difference between this less Council of the Kings Barons and Tenants in Capite, and the great Council of the Kingdom.

And for further proof of this, pay see the Instrument of King Iohn's re∣signation of his Crown to the Pope, as you will find it at the end of Dr. B's. compleat History: which is recited to have been done Communi Concilio Baronum No••tro••um, that is, by the Common Council of the Kings Barons and Tenants in Capite, who were all there present in Arms against the Landing of the French King then expected. And yet this was never looked upon to have been done per Commune Concilium Ragni, since this Resignation was declared void by the Bishops, Lords and Commons in full Parliament in the 40th. of Edward III. because done sa••z lour Assent as it is in the Parliament Roll of that Year.

But when ever the whole great Council, or Parliament was summoned to assemble, then this lesser Council of the Tenants in Capite, must needs meet also, as being a principal part of it. And then the expressions were more comprehensive, as I have already noted; and our ancient Historians do in my Opinion, by their Expressions, plainly signifie an Union of both these Councils, to make up the Common-Council of the Kingdom; as appears by the Letters which the Priory of Canterbury wrote to the Pope upon the Election of Ralph, Bishop of Rochester, in the 14th of Hen. 1. to the See of Cantebury, as you will find them in Eadmerus, (Lib. 5. fol. 111.) and which is there said to have been made adunato conventu totius Angliae; that is, in the united Assembly of all England, viz. the Episcopi, Abbates & Principes Regni, & itgens Populi Multitudo. So likewise Hovelen in his History. (fol. 273.) An∣u 1121 (being the 18th of Hen. 1.) relates the Kings Marriage with the Lady Adeliza, Daughter to the Duke of Lovain, to have been celebrated at Windsor, adunato Concilio totius Regni, i. e. in the united Council of the whole Kingdom.

M.

I am not yet satisfied with your proofs; and I doubt not but to shew you that this distinction of your Friends, Mr. P. and Mr. A. his second, be∣tween the Common Council of the Kingdom, and the Council of the great Lords and Tenants in Capite, will prove but a meer Chymra of those Gentle∣men, from whom you have borrowed it; for there was indeed but one Com∣mon Council of the Kingdom in those times, viz. that of the Bishops, Earls, Barons, and other Tenants in Capite.

And therefore in answer to your first Authority from the Saxon Chronicle, I shall shew you another of the same King's Reign, which will shew the diffe∣rent expressions of this great Council by Hired, and Mycel Getheat, to have been the particular Fancy of that Monkish Writer, and it is from Gervas Do∣••••bornensis, de Actis Pontisicum Cantuarens. Ecclesiae, where you may see in the Decem Scriptores,* 1.43 this passage Anno. 4. Re∣gis Wilhelmi I. Anno. Dom. 1070. Lanfrancus Cadomensis Ah∣lu electus fuit Archi••piscopus Cantuariensis a Senioribus ejusdem Ecclesiae cum Epi∣scopit & Principibus, clero, & populo Angliae in Curia Regis in Assumptione Sanctae

Mariae, where you may see that this confirmation of the Arch-bishop was made in the great Council of the Kingdom which is here called collectively or altogether (and not one part of it only Curia Regis.) As for the words which make up the constituent parts of this Council, we have sufficiently de∣bated them; and therefore I need say nothing more concerning them.

But tho the Dr. has given us more Authorities to prove this,* 1.44 yet I shall make use of but one more from Badmerus it is in the Reign of Henry I. thus, in subsequenti Nativitate Dom. Christi Regnum Angliae ad Curiam Regis Lundoniae pro more convenit, & magna Solemnitate habita est, &c. This instance is full in all points, here is the whole Kingdom, that is the whole Baronage or University of England (for Bracton tells us the whole Kingdom consisted of Earldoms and Baronies) who met according to Custom at the Kings Court; and hence it is manifest that at those times the Common Council of the Kingdom was held, and from this also as from the former instances, that the Barones, Principes & Optimates, & Mayres Regni did at those great Feasts pro more according to the Custom frequent the Kings Court, and were the only Persons that constituted that great Assembly.

F.

But pray give me leave to interrupt you a little; did not I tell you but now, that the King did often convene the Common Council of the whole Kingdom to meet the Bishops great Lords and Te∣nants in Capite at one of these Feasts;* 1.45 and so it might be an Assembly ex more in respect of them, but extraordinary to all the rest of the Kingdom, and this often happened at other times as well as at these feasts according as the Kings occasions required, when all the others were Sum∣moned on purpose.

M.

I have already answered that Objection; and granting it might be so, it does not prove it was so: But I desire you to tell me what you can say to this expression in the Authority I have now made use of from Eadmerus. Regnum••o∣mbre convenit▪ which is spoken of the most general Council when the King∣dom of England then met at the Kings Court. So that your small Criticism upon the Words adunato Conventu or Concilio, as if they signified this Uni∣on or Conjunction of two Councils into one, is but a meer Pancy of your Authors, those words signifying no more than a gathering or meeting toge∣ther of all the Persons that constituted that Assembly, as appears by these words in Eadmerus, Adlinatis (without either Praecepto or Sancti∣one Regis) ad Curiam e••us in pascha Terrae Principibus,* 1.46 i. e. the chief Men of the Nation being at his Court at ••aster.

But as for your main instance of King Iohn's Resigning his Crown to the ••ope in a Common Council of the great Lords and Tenants in Capite, but not of the Common Council of the Kingdom, I confess it were very considerable if it were true, for tho I grant that in all the Charters of this Kings resig∣nation, the words you mention, viz. Communi concitio Baronum nostrorum ••re inserted, yet it could not be a great Council; since tho I grant that all the Tenants in Capite were at that time Summoned to appear in Arms against the King of France;* 1.47 yet it being a Military

Summons for the gathering together of an Army, and not for the meeting o a great Council, and the five proscribed Bishops being in France, and the Barons that sided with them, fled beyond Sea, and not dar••ng to appear; so that this resignation having been Executed before so small •• number of Barons as appears by the Witnesses to it, viz. but two Bishops, the chief Justidiary, seven Earls, and three Barons without subjoyning, & aliu Episcopis, Comiti∣bus, & Baronibus, or & Communitate, or ••ota Communitate, it does not appear that there were any more present, so that this could not be such a Council as was constituted by King Iohn's Charter, that is, it was not a Parliamentary Council, or general Representative of the whole Nation; and therefore the Parliament in the 40th. of Edw. III might very well say, the resignation was made without their Assent; and so I think this great Argument of yours comes to nothing.

F.

Pray do not Triumph before the Victory. For I doubt not but to prove, notwithstanding what you have said, that this was a real Common Council of the Barons and Tenants in Capite, in which King Iohn resign∣ed his Crown,* 1.48 tho not of the Kingdom; Which I prove thus. First it appears by all our Historians, that King Iohn had just before Summoned all the Earls, Barons, Knights and Free∣men of the Kingdom, whoever they were, and of whomsoever they held, to appear in Arms, which made so vast an Army, that after all the ordinary Rabble were sent home; Matt. Parls tells us, that the Knights, Esquires and Freemen that stayed behind, made an Army of 60 Thousand Men, who were Encamped at Barham Down, not far from Dover, where this resignation was Executed: So that this being almost as great a Meeting as that at Runne Mead, not long after, the King might very well have Summoned at least a great Council of all his Tenants, in Capite, to countenance this resignation, and that he did do so, the Charter it self says expresly; which had it been other∣wise, would have appeared a notorious Lye to the whole World. Nor do your Objections to the contrary prove considerable. First, you say this was only a Military Summons, and not to a Common Council, yet such a one as was constituted by this Kings Charter, which sure could not be at this time, when that Charter was not yet made till the Year after, before which, you grant, that the great Councils might have met without the 40 days Summons, expres∣sing the cause of their Meeting; and if they could meet ex more, as you grant this Council did at the great Feasts of the Year, without any Summons at all, sure they might as well meet now on such an exigency: The King had, 'tis true, Summoned them at first upon another occasion; but say you, there was so small a number of Barons at this Meeting, that it could not be a Common Council of the Kingdom, neither do I say it was, but the contrary; but how does it appear it was not? Why say you, Five of the Bishops were then fled into France, and a great many of the Barons of their Party. The latter is not true in Fact: few or none of the Barons siding with these Bishops but as for the Bishops, what if Five were absent? Were there not enough left to have made a Common Council of the rest of the Tenants in Capite? Well, but there were but Two Bishops present, and Seven Earls, and Three Barons, as ap∣Pears

by their Names at the end of this Charter, without any mention of more, or of the whole Communities being there; a special reason, as if no more could be present at this Assembly than whose Names are to it; by this Rule the great Charters of King Iohn, and 9th. of Hen. 3. were not made in a great Council of the whole Kingdom; for there are no Witnesses Names expressed at the end of them; it is true at the beginning of these Charters it is said they were done by the Council of certain Bishops, Earls and Barons, which yet were but a very few more of all sorts then there are mentioned at the end of this Charter of King Iohn's Resignation: So that this appearance of the Bishops, Earls, Barons and Tenants in Capite is meerly precarious; for if more might very well have been there, it is most certain they were, notwith∣standing the paucity of the Witnesses to this Charter, since those were added only for form sake, and were commonly those who were nearest the Throne when the Seal was put to it.

I confess your first Objection is more material from Eadmerus, of the whole Kingdoms meeting the King at Christmass ex more, without any Summons mentioned▪ to which it may be reply'd, that there might be a Summons to the whole Kingdom to meet, as well as to the Tenants in Capite; and this happening at Christmass, one of the usual times of their meeting, this Author might apply the Title of this Court to the Council of the whole Kingdom: And that this was so, will appear from an Anonymous Author, who wrote in H. 1. his time, published by Mr. Sylas Taylor, in his History of Gravel-kind, (p. 194,) who relates this Election of Arch-bishop Lanfranc to have been made Communi Consensu & Consilio omnium Baronum suorum, omniumque Episcoporum, & Abbetum tostusque Populi, which certainly must mean somewhat more than your Council of Tenants in Capite alone.

And this also is confirmed by Matt. Pari••, who has been so careful, as to mention a Summons to a great Council immediately after the holding of the Curie of Tenants in Capite at Christmass; the words are thus: Anno Dom. 1237, i. e. the 21th of Hen. 3. senuts Rex curiam suam ad natale apud Win〈…〉〈…〉, autem continuo per omnes fines Angliae Scripta Regalia praecipiens omnibus ad Regnum spectantibus, Archiepiscopis, Episcopis, Abbatibus, Prioribus, Comiti∣bus & Baronibus, ut omnes in octabis Epiphaniae Londentis convenirent. Now pray tell me if this Curia held ex more at Christmass, had been the great Council of the whole Kingdom, consisting of the Arch-bishops, Bishops, Abbots, Earle and Barons, and other Tenants in Capite, to what purpose should the King coptinus (i. e. immediately) issue out his Writs for summoning the very same Persons to meet him at London on the octave of St. Hillary, when they were then all with the King at Winchester, and that he might have communi∣cated what he had pleased to them.

Or what have you to say to the Curia, or Common Council held before, in the Ninth of this King, but Eleven years after King Iohn's Magna Charta, when the great Charters were confirmed, and an Aid granted by the whole Kingdom, which Matt. Paris, Anno Dom. 1225. relates thus; (which tho' I gave you at our last meeting, it will not be amiss to repeat again:) Rex Henricut ad natale termis ••••••iam suam apud Westmon, praesentibus Clero, &

Populo cum Magnatibus Regionis, which words (as I have already urged) must comprehend some other Persons then your Tenants in Capite alone; other∣wise the word Populus had been altogether in vain: so that you see the Com∣mon Council of the whole Kingdom was often held at the same time with the ordinary Curia, and is by way of Excellency, called by the same name as we at this day call the great Council of the Kingdom, the High Court of Parlia∣ment; and Curia and Court differ no more then a Latin Name from an English, which is likewise very well confirmed and explained in the Chroni∣cle of Walter of Civentry (to be found indivers private hands) who lived in the Reigns of King Iohn and Henry 3. and speaking of this 〈◊〉〈◊〉, Council or Parliament (which though it might begin at Christmas with the Curia, yet it seems held on till Candlemass) when the Commons were joyned to it. He 〈◊〉〈◊〉 thus; In Purtsicatione beatae Marlie convocaniur apu•• Lond••n, Proceres An∣gliae ibiq; tractatu babito dissustere, cum Claro, & Populo ibi••••m conv••cato, Rex 〈◊〉〈◊〉 Libertates tam Eccles••••e, quam Regni, quam Forest••••, sicut cartie suae sunt •••• confect••••. Now I leave it to your self to judge, whether by these words, Tracta•• diffusure babi••o cum Clero. & Populo, &c. (put after the calling of the Proceres, i. e. great Lords and Tenants in Capite) any thing can be meant but the inferior Clergy and Commons; all which being joyned in one Body, made up the Commune Concilium Regui: And that this was so, appears by the date of this great Charter it self: 11 Februaril Anno Regui nono H. 3. But that the whole Council or Parliament, when thus joyned, was likewise called Caria Regis. I can prove by several Examples; among which see the Stat. of M••••on in 20 Hen. 3. beginning thus; Provisum est in curia Domini Regis Hen∣rico, &c. coram Will. Cant. Archi piscopo & Episcopis suffragane••s suis, & coram naure parte Comitum & Baronum Auglie ibidem exillentium pro Coronatione qu dem Regis, pro qu•• omnes vocati fuerunt, ita provisum fuit, & c••ncessum 〈◊〉〈◊〉 •• predictis Archi••pise. Epise. Commitibus, Baronibus, quam ab ipso Rege, & Aliis. Now who can these Alii mean, coming thus after Barones, but the Commons as now understood?

M.

I confess these Authorities you have now brought carry some colour of in Argument, but if they are lookt into, will signifie little: to begin with your first quotation from Matt. Pari••, suppose I grant that there was a Curia 〈◊〉〈◊〉 more held at Westminster, at which there then appear'd at Court only a small number of the Bishops, Lords, and great Tenants in Capite; but the King not finding them enough for the great Affairs he had then to communi∣cate to them, immediately issued out his Royal Writs to all the Orders of men there mentioned to appear at London on the octave of St. Hillary; but how can you affirm there were any Commons then summoned in the sense in which they are now taken, the Barons being the lowest Order here expresly menti∣oned: but if you would but have read the words that immediately follow in its place you have now cited, you would easily see that your Knights of 〈◊〉〈◊〉, and Burgesses could not then be there; the words are these, venti i••i∣•••• Sancti Hi••••arii Londoni••s insini••um N••bilium multitulo; how could these representatives of the Commons have been elected and returned in so short a time as between Christmass, and eight days after Twelfth-ti••••; so that there

could have been scarce three Weeks time from the date of the Writs present∣ly after Chistmass-day▪ to the meeting of the Parliament; but the truth is, by this infinita Nobilium multitudo, who are here said to have come to London, is to be understood the great number of the smaller Tenants in Capite, who all appeared at this Council according to King John's Charter: Whereas your Knights of Shires, Citizens and Burgesses, if they had all come at that time, could not be called infinita Nobilium multitudo, as not consisting at this day of 600 Persons; and sure would have been fewer then. But as for your other Authorities, if this be true I have now laid down, they will be as easily an∣swered, since by the word Populus put before, and distinct from the Magnates in the passage you have now quoted from Mat. Paria; these smaller Tenants in Capite are to be understood; and by Magnates the Bishops and great Lords; and this also explains the like Phrase you now cite from Walter of Coventry; where by Proceres & Populus are to be understood the same orders of Men as by Magnates & Populus in Mat. Paris; so that it was with the smaller Te∣nants in Capite, and the inferior Clergy, with whom the King had this larger or more diffusive Treaty, as this Author words it.

F.

I confess you have now put a very fair gloss upon these Places I have now made use of; but 'tis an hundred pitties that such a fine Hypothesis should have no better proofs than your bare Surmises to support it; for that is all the Authority that I can see you bring for your sense of this word Populus for the smaller Tenants in Capite, and not for the rest of the People; but I see no good Authority as yet brought by you to prove it, except that clause in King John's Charter, which if as I have lately shewed you, it will beat a quite different Interpretation, all that you have said upon that head will sig∣nifie nothing; therefore as for the main Argument you raise from the words infinita multitudo nobi••ium in Mat. Paris, that they could not be the Knights of Shires, together with the Citizens and Burgesses, because they could not be such an infinite Multitude as this Author here mentions to have me; at London; as also because of the shortness of the time of the Summons: If these are material Objections against our Opinion, so it will be likewise against yours; for how could this be a great Council according to King John's Char∣ter, which expresly provides for Forty days Summons for the Tenants in Ca∣pite to come to this Assembly; and if so be, this usage was broken at this time upon some urgent occasion in respect of them, it might be so also as to all the rest of the Kingdom, for the Knights of Shires might be chosen at the next Country-court, and their Names returned immediately before, or together with their meeting at London; and as to the Citizens and Burgesses, it was yet more easie for them to be chosen and returned in three Weeks time, since every body knows the Cities might have called Common Councils; and the Towns and Burroughs by the notice of their proper Officers to whom the Writs were delivered, might have assembled at their common Halls or Town-hou∣ses, immediately upon the receipt of the Writs; and these, together with the Knights, Citizens and Burgesses joyn with the great Lords and Tenants in Capite, made up the infinita Nobilium multitudo, mentioned by Mat. Paria.

But your main Objection I confess is behind, how these Representatives of the Commons here called infinita Nobilium multitudo, could be the Knights,

Citizens and Burgesses, whose number could not be at that time above 500 Persons: As for this, pray consider if the difficulty will not bear as hard up∣on you; for if your Tenants in Capite made such a vaft multitude, all those difficulties will arise that you press me with upon my Hypothesis of the meet∣ing of all the chief Free-holders or Lords of Manors in England in Parlia∣ment, before Knights of Shires were introduced in the room of them, viz. How it was possible for so great a multitude to debate, vote, or do any bu∣siness; and what Room or Church was able to hold so many, and the like; so that granting all your smaller Tenants in Capite (who had but one Knights Fee apiece) to have met there, these might have made a body of 5 or 5000 Men; which how they could have been managed any better then 20000 or 30000, which would have more then taken in all their Feudata∣ry Tenants too, I desire you would resolve me if you can; so that at last upon your own Hypothesis, this Populus consisting of the Tenants in Capi∣te were as much Commoners as the Knights o•• Shires at this day; for, as for the word Nobilium, I have already proved (and you must needs here grant it) that it takes in the inferior Nobility or Gentry, under the degree of Lords, as well as the Superior; and if so, why not all the considerable measu Tenants of those Tenants; so that you have hitherto brought no proof but your bare Assertion, that under this infinita multitudo Nobilium & Populus, must be understood only the great Lords and Tenants in Capite, since either this Author speaks Hyperbolically, or else all the chief Gentry of England, of whatsoever Tenure; might have appear'd at this great and extraordinary Assembly.

So that you are under this Dilemma; either this Curia (which you confess met ex more) was the great Council of the Kingdom, or it was not; if it was not, then there was some other greater Council besides that; but if it was, then it will plainly follow (though you do all you can to mince the matter) that this great Council of the Kingdom or Parliament met of course by an∣cient custom three times in the year without any Summons at all from the King; which if I should have affirmed, you would have called it a Common∣wealth Notion, since nothing can be a greater proof, that this Assembly of the whole Nation in Parliament did not upon your Hypothesis immediately depend on the Kings Writs of Summons for their Assembling and Acting when met.

M.

Well, since you can bring no direct proof that these were any other be∣sides the Tenants in Capite, who met at this great Council, I have still more reason to suppose them to have been so, then you can do for the conorary Opinion; therefore pray give me if you can, some clearer and later proofs for this difference between the two Councils.

F.

I shall comply with your desires, and in order to it, shall conclude with two or three of those very Authorities the Doctor has given us in his Answer to Mr. P. where he gives us this passage out of Mat. Paris, in the 2••••th of Hen. 3. (which plainly proves the Tenants in Capite not to have been the common University,* 1.49 or sole Rep. esenta∣tive of the whole Kingdom; •• pray read it: E•••••• in Anno convene∣runt regis summonitione convocati Londinum Magnates totius Regni Arci••pis••ori, Episcopi, Abbates, Priores, Comites & Barones, in quo Concilio portis Rex o••e

proprio in presentia magnatum (i. e. of all the parties above mentioned) in Refectorio Westmonasteriensi Axilium sieri pecuniare, cui fuit responsum qu••d super ••oc tractarent ••recedentesque Magnates de R••fectorio convenerunt Archiepiscopi •••• Episcopi, Abbates & Priores seorsim per se superque hoc diligenter tractaturi, ••and••m requisiti fuerunt ex parte eorum Comites & Barones, si vellent illis unani∣miter con••entire in responsione & previsione super hi•• facienda, qui responderunt (sc••licet Comites & Barones) quod sine communi universitate nihil facerent, ture de communi diss••nsu electi fuerunt ex parie cleri, Electus Cant. &c.

Now I think here is as manifest a distinction as need to be between the Lords and Commons,* 1.50 as Members of the great Council and the common University of the whole Kingdom; for it is obvious that when all the Lay Lords, Earls and Barons (to whom you may also add your Tenants in Capite if you please) being met together, were asked by the Bishops, Abbots and Priors then present, whe∣ther they would agree with them or not? the Ea••ls and Barons answered for themselves, that they would do nothing without the Common Vniversity, which could not possibly be only the Lords Spiritual and Temporal, and Tenants in Capite, since it is plain they were now all here, and referred themselves to another distinct order of Men, different from themselves (who were not there present.) as also from the Bishops, Abbots and Priors, who demand∣ed there. Consents to what they had agreed upon. Now if the Temporal Lords and Tenants in Capite had concurred, here had been the consent of the Common Vniversity of Lords and Tenants in Capite; but besides the con∣sent of all these, there was, notwistanding, it seems, required the Consent of another body of Men, called here the Communis Vniversitas, by which must be meant the Commons, or no body, since otherwise they might have all agreed together without any more ado.

M.

I confess this Story out of Mat. Paris looks somewhat plausible at the first on your side, but I doubt not if it be better considered, it will do you lit∣tle Service; for what if by this Common Vniversity is to be understood the whole body of lesser Tenants in Capite, who not ••itting with the Lords at that time, they would do nothing without their Consents, till it was proposes to them; but that they did afterwards all agree, pray read the rest of this Narration, and it will make it clear enough, that this Common Vniversity of Tenants in Capite did also agree with the Lords, Bishops and Abbots, the words immediately following in Mat. Paris, are these; Tunc de communi assen∣su electi fuerunt ex parte cleri Blectus Cantuariensis, Wintoniensis, Lincolniensis, & Wigoriensis Episcopi ex parte Laicorum, Richardus Comes Frater Domini Reg••••, Comes Bigod, Comes Legr. S. de Monteforti, & Comes Mares••ballus ex parte vero Baronum Richardus de Montfi••hes & Iohannes de Baliol, & de Sancto Edmundo, & Rameseit Abbates; ut quod isli duodecim provider••nt in communi recitaretur, nec aliqua forma Domino Regi ostenderetur Authoritate duodecim nisi omnium com∣munis assensus interveniret; from which last passage it appears plain to me, that in this Parliament the several Orders of men that were the constituent parts of it, were only the Bishops, Abbots, Priors, Earls and Barons; and that all these put together were termed the Common Vniversity, which is more

comprehensive then University simply taken; now if the Commons, as at this day represented, had been there, we must have had some mention of them one way or other, as well as of the Committees of the other Orders which made up the general Committee of Twelve; so that it is plain beyond doubt, that the Commons were not part of the Common Vniversity.

F.

Then pray tell me who they were, for the Historian tells that when all these Bishops, Abbots, Priors, had now met together with the Earls and Barons, yet these last ••ell them that without the Common University they could do nothing; which had been nonsense, if, as your Doctor supposes, the whole University, or Community of the Kingdom had been all present.

M.

I must confess, this is a material Objection, but what if to help him out, I should tell you that by the Common University here mentioned, is to be understood the body of the inferior Tenants in Capite under the degree of Barons; and this Common University of Tenants in Capite might not have been present and sat with the Earls and Barons at that time when the Bishops and Abbots made this Proposal; therefore the Lords might very well answer, that till they had consulted the Common Universty, or Body of Tenants in Capite, they could do noth••ng; and though this Body of Tenants in Capite did not then actually sit with the Earls and Barons, yet doth it not follow, that they made a distinct Estate by themselves, different from that of the Lords or greater Tenants in Capite; for then the Arch-bishops, Bishops, Ab∣bots, &c. (who are here expresly said to have consulted by themselves,) must have done so likewise; therefore though our Author is not so particu∣lar as he might have been, yet certainly this Common University were there∣upon consulted, and gave their Assents to the choice of this Committee of Twelve, who were to draw up their answer to the King, for the words are, tunc ex communi assensu electi fuerunt; which seem to refer to the Common University or Body of Tenants in Capite, or else the Lords Excuse, as well as the Election of these Persons by the Bishops, Earls, &c. had been very insignificant.

F.

This seems to me to be a precarious assertion, and without any due proof, for tho the words are Tunc ex Communi Assensu, yet I very much doubt, whether these words do refer to the Common Vniversity of the whole Kingdom, or not; for your self confess, that Mat. Paris is short in this point; and that it was not so, seems most likely to me by this material circumstance, that not one Person of the Twelve, but was either a Bishop, Earl, or great Baron. (For that Richard de Mon••sichet, and Iohn de Baliot were so; Sir William Dugdale hath proved in his Baronage of England▪* 1.51) Whereas, if the University or Body of the Tenants in Capite had joyned in this Election, it is not likely, but they would have chosen some of their own Body to represent them in this Committee, who were not Earls or Barons: Since your self must confess that they then were a great Body of Men, who were not Lords, nor did at this time Sit, or Act Joyntly with the Lords, or greater Barons in this Assembly; and likewise it farther seems highly probable, that this Common Vniversity of Tenants in Capite (take it in your sense) did not give any Resolution in this matter, since we do not find

any Mony given in answer to the King's Request, but only Complaints of, and orders about, Redressing of Grievances which was in those days often done in a great Council of the Bishops, Lords and Tenants in Capite.

But I shall shew you now by some other Records which the Dr. himself hath made use of,* 1.52 that there often was a distinct Assembly or Council of the Lords, and Tenants in Capite dif∣ferent from that of the Commons or Commonalty of the whole Kingdom:* 1.53 The first Record is to be found among the Patent Rolls of the 42. Hen. III. beginning thus. Rex omnibus, &c. cum negotiis nostris arduis, nos & R••gnum nostrum contingentibus, Proceres, & Fide∣les Regni nostri ad nos London. in Quindena Paschae proximae praeterita facere∣mus convocari, & cum de Nego••iis supra dictis, & maxime de prosecutione Negotii Sicili••e diligenter cum iisdem tractaremus, ac ipsi nobis responderum quod si statum Regni nostri, per Concilium Fidelium Nostrorum ratificandum duxerimus, & Do∣minus Papa Conditiones cirea factum Siciliae appositas melioraverit, per quod Nige∣••ium illud prosequi poss••mus cum effectu, ipsi diligentiam fideliter apponent erga Communitatem Regni nostri, quod nobis Commune Auxilium ad hoc praestetur, &c. The rest I shall not trouble you with, because it is not to our present purpose.

But you may here see, that taking the Words Proceres and Fideles in your own sense, the former for the Bishops and Lords, &c. and the latter for the Tenants in Capite, who were called to consult about the business of Sicily (which Kingdom the King had before too rashly accepted of from the Pope.) Yet tho they were all met, they could do nothing but give him advice, and could give him no Commune Auxilium, i. e. common Aids, or Subsidies, without the consent of the Commonalty of the Kingdom. Now what can this Community signifie but the Commons, for your Lords and Tenants in Ca∣pite were all met already, and if they alone made up the Common Vniversity or Body of the Kingdom (as you suppose,) why could they not have immediate∣ly granted the King the Assistance he desired (if they had a sufficient Pow∣er so to do) without putting him off with a Promise, that they would use their endeavour with the Community of the Kingdom, as a distinct order or Body of Men: That this Aid or Subsidy should be given him; and upon this con∣dition it is, that at the end of this Record, the King Promises them, that be∣fore Christmas, He would mend the State of the Kingdom, per Consilium Pro∣borum & Fidelium Hominum nostrorum, which can mean nothing less than a Parliament; which the next Record in the same Roll recites, was to meet at Oxford after the Feast of Pen••icost, which Record since it not only recites the King's Oath, whereby he had bound himself to observe the Direction of a Committee of 24•• Fideles. i. e. Faithful or Loyal Man, 12 of which were to be chosen out of the Kings Council, and the other 12. by the Procore•• or Magnates Regni which as I have already proved may take in the Commons as well as the Lords; but whether by these word•• were meant the Lords or Commons: The conclusion of this Record sufficiently confirms my Argument from the precedent Record, that the Lords and Tenants in Capite, could not then Tax the whole Kingdom at their Pleasure, without the

consent of the Commons; or else to what purpose are these words in the con∣clusion of this last Record: Promiserun•• etiam nobis Comites, & Barones Me∣mora••i, quod expleris Negotiis superius tacti••, bon•• fide labora••unt ad hoc quod Auxilium nobis Commun•• praest••••ur à Communitate Regni nostri in cujus rei, &c. Dat 2. die Maeii: And it appears by the Date, as also by the entry on the Roll, that both these Records were perfected at once, and concerning the same busi∣ness, and further to prove that the Parties appointed in the Record to be chosen ex part•• Procerum,* 1.54 were not chosen by the great Lords or Peers only, may be seen from a Patent Roll of the same 42. Hen. III. whereby Henry de Wengham Dean of St. Martin le Grand, and then Keeper of the Great Seal, and Iohn Manse••, Provost of Beverlay, were two of the said Commissioners, tho they were neither Barons nor Tenants in Capite (as I know of) hue only Eminent Lawyers,* 1.55 and Men of great Abilities (and so meer Commoners.) Yet Mat. Westminster calls these Men, Pro∣ceres, as you may see by this Passage, speaking of this whole Committee, Videntes ergo Proceres antedicti viginti quatuor, ad Regis & Regni regimen 〈◊〉〈◊〉 Electi, &c.

I shall only now conclude with a French Record,* 1.56 which the Dr. himself hath also given us at large and which refers to the said Committee of 24. above mentioned; it begins thus. Henry par la Grace de Dieu Roy d' Engleterre, &c. a touz ceus, &c. Sachiez ce pur le profit de nostre Re••ume é a la Requeste de nos ••auz Homes é Prodes Homes, é du Commun de nostre R••aume, Otreyames es vinc quatre Homes eus••ent p••••r, perq•• tous ce quil ordencirent del Estat de nostre Reaume fust serm, é Stable, the rest being very long, you may read at your leasure, only I shall take notice of the date of this Letter, to which the King also put to his Seal: The conclusion being thus: Coste chose feu feite a Lundre landemaigne prochein apros la Gaule bau••••l'an de nostre corronement quarente secundo,* 1.57 and tho the Dr. ca•• make nothing of the words Gaule baut, this happened I suppose either from the bad Writing of the Record, or from the Ignorance or Mistake of the Transcriber; for it should be Gaeule d' Aut,* 1.58 that is, the Gula of August; which is a great Holy Day in the Church of Rome upon the First of August, (called also St. Petri ad Vincula) in the Memory of St. Peter's Chains, curing of a Roman Virgin by her Kissing them.

I shall only observe from this Record that the Hauz or Prodes Homes men∣tioned in this Record, being taken in the Dr••. own sense, for High and Wise Men; that is, the Earls and Barons, yet the words è du Commune that immedi∣ately follow them, must needs signifie some Body of Men, different from the former, or else it had been a notorious piece of Nonsense; since if the for∣mer words had taken in all the Lords and Tenants in Capite, that is (in your sense) the whole Community of the Kingdom, to what purpose are these words è du Commune, that are immediately subjoyned since the hauz & Prodes Homes would have served to express all the Lords and Tenants in Capite, whether taken as Great or as Wise Men.

M.

I confess what you have now said, would carry some, weight with it, were I not very well satisfied, that you impose upon your self, by taking (as I told you at our last Meeting) these words Communitas, le Commune, & Communalti in a wrong sense; for the Commons as they are now, when in∣deed these words before the 49th. of Hen. III. nay the 18th. of Edw. I. (as the Learned Dr. shews us in his 2d. Edition against Mr. P.) are always to be understood, either of the whole Representative Body of the Kingdom in gene∣ral consisting of the Bishops, Abbots, Earls and Barons, together with all the Tenants in Capite, called by Mat. Paris and other Historians Communitas Baronagii, or else for the Community of the Tenants in Capite alone, Stiled Communitas Regni in our ancient Records. And this I think I can prove to you, by undoubted Testimonies; but since you are now upon the proving part, pray shew me that these words I now mentioned, did ever signifie the Commons of England in the sense they are now taken before the times we in∣sist on, and I have the more reason to desire this from you; because it is chiefly from the mistaken Application of these Words, that the Gentlemen of your opinion have imposed their false notions upon the World.

F.

I shall undertake what you desire; and I hope if I cannot satisfie you, the fault will not lie in my Authorities, but you prejudices against them. In the first place therefore let me mind you, how far you and I agreed at our last Meeting, when I granted you that these words now in dispute were very equivocal, and were often taken in different senses, as sometimes you say true, for the whole Representative Body of the Kingdom, sometimes for the Community of the Barons, and sometimes for the Community of the Bishops and Clergy; but never as I know of for the Community of the Bi∣shops, Lords and Tenants in Capite, much less for the Body of Tenants in Capite alone, nor were you then able to prove to me, that these words must necessarily be understood in your sense for the Community of the Tenants in Capite: And tho you should prove them sometime to be taken in that sense, yet would it rather make against, then for your Opinion, since they must then signifie a different Body of Men from your great Lords, and consequent∣ly as meer Commoners as your Knights of Shires at this day, which is against your first general assertion, that by these words are always understood the Community of the Baronage only.

But to come to my proofs (which I shall divide in two parts;) first I will prove that these words Communitas, le Commune, and Communalty, when coming im∣mediately after Comites & Barones, or Counts and Barons or Proceres in our old Statutes and Records, do always signifie the Commons in the same sense in which they are now taken: And for proof of this, I will begin with the Reign of Hen. III▪ when these words came first to be generally in use, and so de∣scend to his Successors as low as Rich. II. and if I can shew you, that these words (so put) always signifie the Commons, as well before, as after that time: I think you have reason to be satisfied, that these was never once upon a time such a strange alteration in the constituent parts of our great Councils as you supposed, yet none of our ancient Historians or Statutes should ever take any notice of it, till these modern Antiquaries took upon them to disperse these Clouds.

To begin first with the words le Commune,* 1.59 pray remember the Patent Roll of the 48th. of Henry III. which I mention∣ed at our last Meeting▪ viz. the ••or•• of the Pea••e between this King,* 1.60 the Prince his Son, and the whole Body of the Kingdom Assembled in Parliament; the Title of which is thus. Haec est Forma pacis à Dom. R••ge, & Dom. Edw. Filio suo, Praelatis, Proceribus omnibus cum Communitate ••ota R••gni Angliae communiter, & concorditer approbata. Now pray what can these words Communitate ••ota here signifie, but another Body of Men distinct from the Earls and Barons, or else it would be a gross Tautology.

And pray compare this Form of the Peace now mentioned, with the Writs of Summons of the 49th. of this King (when your Dr. grants the Com∣mons were Summoned to Parliament after the same manner as they are now) and see if there be any change in the Terms; and for proof of this, we need go no further then the very Writ of Expences (for the Wages of the Knights of Shires, which the Dr. himself has given us at large in his answer to Mr. ••.) it is the 49th. of Hen. III. to the Sheriff of Yorkshire,* 1.61 wherein, after other recitals, it follows thus, Cumque communitates Comitatuum dictorum vari••s hoc Ann••. ••••∣cerin•• prastationes ad defensi n••m Regni nostri, &c. He therefore commands the said Sheriff, quod danbus militibus qui pro Communitate dicti Comita••••s praefa••o Parliamento interfuerunt, &c. should be paid their reasonable Expenses. De Communitate Comitatus praedicti: For going to, and staying at, and returning from the said Parliament, &c. from whence it appears, that the words Com∣munitas and Communitates in this Writ, cannot signifie the Community of Te∣nants in Capite alone, but the Commons of the Co••nty in general; unless you can prove to me that none but Tenants in Capite had performed these va∣rias praes••a••iones in the Writ, and that none but they then contributed to these Expences of the Knights of Shires; otherwise these words must plainly signi∣fie the Commons in general, as they did in the like Writ of the 28th of King Edward I. which I shall give you by and by; but I shall first shew you a few other Records of this Kings Reign,* 1.62 concern∣ing the word la C••mmun•• (which Mr. P. has given us) they are in the Patent Roll of the 51st. of this King, wherein He by the Council and Assent of the King of the Romans, & des Coun••s, & des Barons, & la Commune, de la Terre, Pardons the Earl of Gloucester and all his Company: So likewise in the same Roll, the King by the Council, and Assent of the said Counts, & Barons, & de la Commune de la Terre, Pardons the City of London, all manner of Rancour and ill Will.

Now pray tell me a reason, why should not the word la Commune in these Acts of Pardon, signifie the same thing as the word Communitas in the form of the Peace▪ and in the Writ of Expences of the 49th now cited: Since they come immediately after the Counts & Barons, and so must needs signifie a Body of men, distinct from them; for there is the same reason, why the words la Commune de la Terre, should here signifie the Comm••ns of the Land; as that the word Communitates Comitatus should signifie the Community or Commons of the whole County.

M.

Will you give me leave to answer this Question presently, because I confess it is very material, before you proceed farther? There may (in my opinion) very good reasons be given. 1. Why the words Communitas & la Commune, may signifie the Community of the Tenants in Capite in the Form of the peace, and Acts of Pardon; and yet signifie the Commons of the County in general, in the Writ for Expences you have now mentioned: As first, because the subject matter is different in the Form of the Peace, and Acts of Pardon, from that in the Writs of Expences; the one being the Communitas Regni, and the other Communitas Comitatus only, called also in the Plural Number, Communitates Comitatuum, and then I grant when thus used, it always signifies the Commons in general; and there may be likewise a sufficient reason given, why this great change might have been made in the constituent parts of our great Councils, and yet no change of Phrases or Ex∣pressions might be made in our Records and Statutes, nor any notice taken of it by our Historians; which is, because the first Knights of Shires, being chosen out of, and by, the Tenants in Capite only; the change was im∣perceivable at first, there being still Men of the same order, appearing in Parliament, for the whole Body of those Tenants, the difference being only in the Number, viz. Two, for a whole County; whereas before all the chief Tenants in Capite came in Person, and I am the more inclined to be of this opinion, because in this Writ of Expences of the 49th. of Henry III. (which you have now cited) there is no such Clause as is in the following Writs of like Nature, prout in casu consimili fieri con••uevit, which shews it to have been a new thing for the Knights of Shires to have their Expences allowed them, that being the first time of their Meeting in Parliament.

F.

I confess what you say is very plausible, were there any Colour of a proof brought by you for it, but I shall shew you further, that your distincti∣on between the Communitas Regni, and the Communitas Comitatus signifies no∣thing, unless you can prove that this Communitas Regni was not the Represen∣tative of the Communitates Comitatuum mentioned in this Writ, and did not consist of Persons of the same degree or order; for the Writ of Summons of 49th. Hen. III. says no more then that these Knights should be de legalioribus & peritioribus militibus comitatus, without limiting them to Tenants in Capite. But as for your Reason, why these great alterations might be made in our great Councils or Parliaments, without any notice taken of it, it is altogether false and precarious, for you have not yet, nor can, I believe, give me any sufficient Authority (beside the Drs. bare assertion) that ever none, but Te∣nants in Capite, were capable of being Elected Knights of Shires, or that none but such Tenants by Military Service were the Electors.

And I think I have sufficiently confuted the Vanity of that Assertion at our last Meeting,* 1.63 when I shewed you the false in∣terpretations you gave of those Statutes of 7th. of Hen. IV. and 10th. of Hen. VI. whereby you would have proved, that there was some alteration thereby made, as to the Electors of the Knights of Shires at the County Court: Whereas, indeed before those Statutes, all Persons of whatsoever Tenure, and of howsoever small an Estate of Free-hold,

who owed Suit and Service to the County Court, were capable of being Ele∣ctors; and consequently of chusing whom they pleased as well Tenants in Ca∣pite as others, to be Knights of the Shire; and that those who were not such Tenants were frequently chosen; in the Reigns of Edward the Third, and Richard the Second; I could bring sufficient proofs, were it worth while to insist upon a thing so certain.

But I shall go on to prove that the same words, viz. Communitas le Com∣mune, or la Communalie, were used in many of our Statutes and Records, to signifie the Commons. I come therefore to the Reign of Edward the First, and I pray, in the first place, remember, what I took notice of at our last meet∣ing concerning the Statute of Westminster the first, made in the third year of this King,* 1.64 beginning thus in French, per L'assentement des Archesques, Evesques, Abbes, Priors, Counts, Barons & tout la Communalty de la Terre, Illonques Sum∣mones.

Now every one knows that Communalty is but French, for the Latin Com∣munitas, as appears by the first Writs we have left us (except that of the 49th. of Henry the Third, now mentioned) de expensis Militum, being of the 28th. of this King directed to the Sheriff of Somerset∣shire to levy the expences of the Knights for that County (who had served in the last Parliament) le Communitate Comi∣tatus praedicti;* 1.65 i. e. of the Commons of the said County in general, the same Clause is also in the Writs which were then issued for the expences of the Citizens and Burgesses who served in this Parliament; which were also to be levy∣ed de Communitate civitatis vel Burgi,* 1.66 which sure must mean the Commonalty, or Commons of all those Cities and Bur∣roughs there mentioned, for the Record is, Eodem modo scribitur Majoribus, & Ballivis pro Burgensibus Subscriptis: And which is also more remarkable, these Writs contain this Clause, that the said Knights and Burgesses should have their expences allowed, pro veniendo, manendo, & redeundo a Parliamento praedicto prout alias in casu consimili sieri consuevit; which words relating to a former Custom, not then newly began (as this word consuevit in a legal sense still imports) must needs relate to some time much more ancient than the 49th. of Henry the Third; or the 18th. of this King, the former of which was but 26 years, and the latter but 10 years before this 28th. of Edw. the First, in which time there were not above thirty Parliaments called, if so many.

And further, that the Word Commonalty signified the Body of the Com∣mons, and not Tenants in Capite in the Reign of this King, appears by the Statute or Ordinance (the year is uncertain) intituled, Con∣suetudines Can••iae, which you may see in French in Tottles Collection; the Ti∣tle of them is thus, Ceux son•• les usages les queax la Communalty de Kent Clayment avoir en Tenements de Gavel-Kind. Now every body who knows any thing of Geval-Kind, know also it was generally a Socage Tenure, there being but little of it held by Knights Service, and consequently the owners

of such Lands who were then the greatest part of that County, are here called la Communalty de Kent.

So likewise in the Reign of Edward the Second the same words are used in the same sense; as in the Statute of Pardon for the death of Pierce Gaveston made in the Seventh of this King;* 1.67 which is granted per nous, (i. e. the King himself) per Archievesques, Ev••sques, Abbes, Priors, Counts, Barons, & la Commonal•••• de nostre Rolaume illonques assembles.

So also in the Latin Records, as appears by an Act of Par∣don granted in Parliament,* 1.68 in the 12th. year of this King: Consentientibus Praelatis, & Pr••ceribus, & Communitate Regni. So likewise the Statute of York of the same year, writ in French,* 1.69 is recited to have been made per Ass••nt des Pre••us, Counts, Barons, & la Commune du Royalme illonques assemblez. Where you see that the Latin word Communitas, and the French le Commune signifie the same Order of men.

In the Reign of Edward the Third, I can give you these remarkable exam∣ples of the same words, in the Parliament Roll in the first of this King,* 1.70 Andrew de Ha••iford, a Principal Citizen of London, was de Assensu Praelatorum, Comitum & totius Communitatis Regni▪ pardoned all Homicides.* 1.71 The very like words are also used in the same Roll in the Act of Pardon granted to the City of London.

I shall trouble you but with one m••re in this Kings Reign (but it is so re∣markable I cannot omit it) of the 34th. of this King and is to be found in the old Edition of Statutes Printed in French; the Title begins thus, Ceux sont les choses, queux nostre Seigneur le Roy, Prelats, Seigneurs & la Commune ount ordaines & establé••s.

To conclude with the Reign of Richard the Second, the like expression is found in the Parliament Roll of 5th. of Richard the Second, where the Statutes begins thus:* 1.72 Pur Commune prosit du R••y∣alm•• d' Angleterre cient fai••es per nostre Seigneur le Roy Prelats, Seigneurs & la Commune de le Royalme esteantes en cest Parliament; from the Titles to which two last Statutes, I pray observe that the word le Commune, is not only used for the Commons in the same sense as it was in the f••rmer Kings Reigns; but also that these Statutes were made by the joint Assents of the King, Lords and Commons: So likewise in the same Roll are recited, Concordiae, sive Ordinationes factae de Communi Ass••••su Regis Procerum, & Mag∣natum, & Communitatis Regni Angliae; which I give you, to shew that the words Communitas & le Commune, always signifie the same thing in our Statu••es and Records, viz. the Commons as now understood different from your great Lords and Tenants; and if they are to be taken in this sense after the 18th. of Edward the First, I would be glad if you could shew me any sufficient reason, why they should not be so understood a•• along before that time, as well as in the 49th. of Henry the Third only.

M.

Tho I grant that these words you mention are to be understood for the Commons, as now taken in many Records and Acts of Parlia∣ment after the 18th of Edward the First (and therefore you need not to have taken the pa••ns to have gone beyond that time) yet notwithstanding I think I can prove to you by very good Authorities, that the word Communi∣tas (which I grant is the same thing with le Commune in French) tho put after the words, Comites & Barones, does not signifie the Commons of England in ge∣neral, but the Community of the Tenant; in Capite alone, or at least the Community of all Tenants by Military Service; and that as low as the Reign of Edward the Third; but for proof of thi••, I pray peru••e this Writ, which the Doctor hath given us in his Answer to Mr. P.

Rex Ar∣chiepiscopis, Episcopis,* 1.73 Abbatibus, Priotibus, Comitibus, Ba∣ronibus, Militibus, & omnibus ali••s de Comitatu Cantiae Salutem. Sciatis qu••d cum p••••mo die Junii Anno Regni no∣stri Decimo octavo, Praelati, Comites, Barones & caeteri Magn••tes de Regno nostro concorditer p••o se, & pro tota Communitate ejus∣dem Regni in pleno Parliamento nostro nobis concesse▪ unt Quadraginta so∣lidos de singulis Feodis Militum in dicto Regno in Auxilium, ad Primogeni∣tam Filiam nostram Mari••andam, &c. Cujus quidem auxilii levationi faci∣endae pro Dictae Communitatis aisimento hucus{que} supersedimus gratio••è, &c.

By this Record it is clear, that such as p••id Scutage, that is Forty Shi••••ings for a Knights Fee, were then the tota Regni Communitas, and no others, and of these the Tenants in Capite granted, and paid it first for themselves and Tenants, and then their Tenants in Military Service, by vertue of the Kings Precept paid it to them again for so many Fees as they held of them, so that this Tax being raised wholly upon Knights Fees, must be granted on∣ly by those that held by Knights Service.

But further, that the Communalte de Royaume, the Community of the Kingdom, as represented by the Tenants in Capite, did still so continue as above mention'd, till almost the middle of King Edward the Third's Reign is as clearly proved by this Record of that King:

Rex dilectis & fideli∣bus ••uis Vicecomiti Wygorniae ••homae B••tt••ler de Upton supe•• ••abrinam,* 1.74 Militi & Thomae Cassy de Wych salutem; ••••••atis quod cum in pleno Parliamento nostro apud West∣monasterium ad Diem Lunae proximo post Vestum Nativi∣tatis Beatae Mariae Virginis proximo praeteritum tento, Praelati, Comites, Barones & Magnates de Regno nostro Angliae &c. p••o se, & to a Communita e eja••dem Regni nobis con∣cesse••unt quadraginta solidos de singul••s ••eodi•• Militum in Di•••••• Regno An∣gliae, &c. so that the whole Community of England in this Record were Mili∣tary Men, such as held Knights Fees, or parts of Knights Fees, and such as paid Scutage, and they were neither the ordinary Freemen, or Free-holders, nor the Multitude, nor Rab••le.

F.

I pray Sir give me leave to answer your Arguments from these Re∣cords as you ••ut them, least I forget what you have said, in the first place

as to this Record of the 30th. of Edw. I. which relates to a Tax given in the 18th. Year of his Reign, and recites an Aid of 40 s. upon every Knights Fee through the whole Kingdom to have been given by the B••shops, Earls, Barons and other Magnates, or great Men of the Kingdom in full Parliament, for themselves and the whole Community thereof to Marry the King's Daughter; and which Subsidy he had deferred to Levy till now, and therefore because this was a Tax granted only upon Knights Fees, that those only who payed this Scutage, were then the Communitas or whole Body of the Kingdom, which is no Argument at all, since from this we may plainly collect the clean contrary; for if none had been to pay to this Tax but those that held by Knights Service in Capite, then the King would have had no need to have had it granted in Parliament; since by the 14th. Article of King Iohn's Char∣ter, he might have Taxed his Tenants in Capite for the Knighting of his Eldest Son, and the Marriage of his Eldest Daughter without the Assent of the Common Council of the Kingdom, and according to your Hypothesis, and the Authorities you have brought to prove it, these Tenants in Capite might also, by the like reason have made their Tenants by Knights Service, have Con∣tributed to this Tax, which yet you see they could not do without the consent of Parliament, and therefore this Aid or Subsidy being granted in Parliament, must needs extend to all the Lands in the whole Kingdom, as well those that held by Knights Service, as well as those that did not, for it is not here said as in the Writ to the Sheriff of Sussex, qui de nobis Tenent in Capite, and then the words pro se, & ••ota Communitate Regni cannot mean (as you would have them,) viz. That the Lords and Tenants in Capite had granted it for themselves and the Community of their Tenants by Military Service only, who (say you) repre∣sented the whole Community of the Kingdom, for then (as I have already observed) this needed not to have been granted in Parliament at all; but at this rate no Tenants of those Abbeys and Monasteries (which were a great many) who did not hold in Capite, would have payed any thing to this Tax, nor yet the Kings Tenants, who did not hold in Capite, but of some Castle or Honour: Nor lastly, any Tenants in Socage, who were very numerous in Kent, as well as in other Counties (as Mr. Taylour proves in his History of Gav••l-K••nd,) so that if your Tenants in Capite and other under Tenants by Military Service had been then the Community of the whole Kingdom. This Com∣munity had not consisted of above one half, or at most a third part of the Kingdom.

But in my sense of this word Communitas, here will be no difficulty at all, for these Magnates mentioned in this Record, being taken as (I have prove••) they often are, for Knights of Shires, then these words are thus to be under∣stood▪ viz. that all the Parties mentioned in this Record, gave for themselves and the whole Community of the Kingdom, consisting of all the Free holders of England, who all contributed to the Marriage of the Kings Daughter ac∣cording to their respective Estates; and tho the sense of this word had been o∣therwise in this place, yet it would not have contradicted my sense of the word Communitas, which I do not aver always to signifie the Commons, but when it

comes immediately after the words Comites & Barones, as it does not in this Record you have now cited.

M.

But pray tell me how this could be, since the Record says expresly, that this Aid was to be Raised by 40 s. upon every Knights Fee, which could only extend to Tenants by Knights Service, nor could this word Communi∣tas here signifie the Commons as now understood; since the Citizens and Burgesses are not at all mentioned, who you know do at this day make up the greatest part of the Representatives of the Commons of England.

F.

This proceeds from your not knowing, or else not consi••ering the anci∣ent manner of reckoning Estates; and consequently of Taxing by Knights Fees, not only Lands held by Military, but Socage Tenure also,* 1.75 as appears by those Writs of the 24th. and 26th. of Hen. III. as they are still upon the close Rolls, being (both almost the same, word for word,) which I gave you at our last Meet∣ing, yet since you may have forgot them, pray read them again, Rex Vice-Comiti Northampton salu••em, praecipimus tibi quod per totam ballivam etiam in singulis bonis villis, & similiter in pleno Comitatu tuo clamari fa••ies, quod omnes illi de Comitatu tuo, qui tenent Feodum Militis integrum, vel etiam minus, quam Feodum inte∣grum dum tamen de Tenemento suo tam Militari quam Socagio possint sistentari, & Milites non sunt, si••ut Tenementa sus diligunt citra festum omnium Sanctorum, Anno. Regni Nostr. XXV. Arma capiant & se Milites ••i••ri faciant.

Where you may Note, that all Men who held the value of a Knights Fee, either by Military or Socage Tenure were liable to be made Knights, provi∣ded they could maintain themselves of their Estates; which could never have been, had not the Custom of Reckoning and Taxing Estates of all sorts, as well by Knights Service as otherwise, according to the value of so many Knights Fees (that is, at 20•• per An.) been then commonly used: But as for your next Objection, that the Citizens and Burgesses are not mentioned in this Record, and so could not be comprehended under the words Communitas Regni, this proves no more then that which will easily be granted you, that this word Communitas used in your Record, is there to be understood restrictively, and according to the subject matter, viz. the Community of Free-holders, or Land-holders of the whose Kingdom only; since this Tax being wholly upon Lands, the Com∣mons of Cities and Burroughs then called Communitates Civitatum, & Bu••go∣rum, whose Estates lay in Money or Goods, could not be Taxed by Knights Fees; nor do I doubt but that if we had the Records of that Parliament of the 18th. of Edw. I. now left us (which are lost) it would appear, that they also contributed to this Tax according to their Estates as they did in the 34th Year of this King to make the King's Eldest Son a Knight: As for your Re∣cord of the 20th. of Edw. III. it is but the same in effect with this of the 30th. of Edw. I. and the same answer will serve for both, only I cannot but observe, that whereas you have often asserted that this word Communitas, did only sig∣nifie the Community of Tenants in Capite, now you fall a Peg lower, and it must at last take in the whole Community of Tenants by Knights Service, whether in Capite or not.

M.

Well then you g••ant that this word Communitas does not always sig∣nifie all the Commons of England as you supposed; but farther, that it must mean the Community of the Tenants in Military Service only: P••ay see this very Record of the 34th. of Edw. I. which Mr. P. has given us at large in his Appendix,* 1.76 which being long, I sha••l t••ouble you with no more then what makes to our present purpose, viz. that the King in••ending to make his Son, Prince Edward a K••ight, Summoned the Arch-bishops, Bishops, Abbots, Priors, Earls, Barons and other great Men of the whole Kingdom to appoint what Aid they would grant the King to∣wards it; and then it follows thus, that the Prelates, Earls, Barons and others, as also the Knights of Shires being mer, treating together with delibe∣ration upon this Matter, consi••ering that an Aid was due to make his Son a Knight, besides the burthen that lay upon they King, by reason of the Scotch War, at lengh they unanimously Domino Regni conc••ss••runt, p••o s•• & ••••tâ Com∣munitate R••gni ••ricesimam partem omnium Bun••••um suorum ••••mporalium mobilium, for making his Son a Knight, and toward his Expences of his War in Scotland. A••d then the Cives & ••u genses Civit ••••um, ac Burgorum, ••c caeteri de Domini••s R••gis Congregati, treating about the Premises, and considering the burthens lying upon the King (not mentioning any Aid for making his ••on Knight, as not holding of the King by Knights-Fee, o•• Ser••ice, and ther••fore none of the Community of the Kingdom, nor li••ble to it) D••mino R••g•• un in••mit•••• ob cau••as supra dictas conc••sserunt Vic. sim••m pariem bono 〈…〉〈…〉 mobilium. Here the P••elates, Earls, Barons, and great Men, with the Knights of Shires, consulted together, and gave for themselves, and the Community of the King∣dom, a Thirtieth part of their Goods, and the Citizens, Burgesses and Te∣na••ts of the King's Demeas••s (which we••e likewise none of the Community of the Kingdom) gave a Twentieth part; for if they had been of the Com∣munity, they had ••aid a Thirtieth part as well as the rest; and therefore 〈◊〉〈◊〉 most certain that even at this time, viz. the 34th. of Edw. I. they we••e not taken to be part of the Community of the Kingdom, and that the Te∣nant in C••pite, Serjeanty, or at least the Military Men, and Tenants in Mi∣litary Se••vice were only such.

F.

As to this last Record you have cited, I need give you no other answer to it, than a like Writ of the 35th. of this King, which the ••••∣ctor himself hath also given us in his ••l••ssa••y; which I shall here read you at large,* 1.77 together with his Learned Com∣ment upon it; it is for the Collecting of this twentieth and thirtieth part granted in the thirty fourth you have now mentioned▪ t••e Writ runs this, Militibus, libe••is hominibus, & ••oti Communitati Comi∣tatus Middlesex tum in••ra Liberta••••s, quam ••xtra s••lutem: cum Archi••pi••co••i, Epis••••pi, Abbates, Priores, Comites, Bar••nes, Milites, Lab••ri Homines, ac Communit••t••s, Co••itatuum, Regni nostri Tricesim••m ••m ••um Bo••orum suorum t••mpor••lium m••bilium, Civ••sque & Burgen••••s, ac Communita••••s omnium Ci∣vit••••••m & Burgorum ejusd••m Reg••i, 〈◊〉〈◊〉 Tenentes de D••minion nos••••is Vicesim••m Bonorum suorum mobilium, curi••liter concess••runt, & gratantur, &c.

And least we should happen to mistake the meaning of these words, th•• Do∣ctor himself has furnish'd us with this Learned Comment upon them as follows in the same place.

It is said in this Record that the Archbishops,* 1.78 Bishops, Earls, Barons, Abbots, Priors, Kn••ghts and Freemen, and Communities of Counties, gave a Thirtieth part of their Goods, as if they had been all Members, and sat in this Parliament: And so it is said of the Cities and Burghs, that the Citizens, Burgesses and the Communities of the Cities and Burghs gave a Twentieth part of their Moveables, as if they had been all there. But these words signifie no more, than that the Knights and Freemen gave by their Representatives, and that the Communities of Counties, and the Citizens and Burgesses▪ and Communities of Cities and Burghs gave by their Representatives,* 1.79 as is most clear from the Writ of Expences for the Knights of Lincoln-shire, and so consequently for the rest.

Now I desire you would tell me whether there can be a plainer Record against the Doctors opinion than this; for in the first place who were these Knights, Freemen and Com∣mons who granted this 26th. and 30th. part of their Moveables in the 34th. year of this King; but the Knights, Citizens and Burgesses, the Lawful Re∣presentatives of the whole Kingdom in General, as well those who held in Capite, or else by inferior Military Service, as those that held by any other Tenure; or who were these Representatives, but men chosen out of all so••ts, a•• well those that held by Knights Service, as those that did not; unless you can prove (as you have not done hitherto) that all the Cities and Buroughs in England held of the King in Capite; and that none but Tenants in Capite, or Military Service at least, were chosen either for Counties or Cities, and though I find your Doctor has an utter aversion to the word Commons, and the••efore will needs translate the word Communitates, by Communities, and not Commons, yet if you were to render those words, the Commons of the Coun••ies, Cities and Buroughs, into our Law-Latin: I desire to know what other words you could make use of but these in this Record, viz. Commu∣nita••es 〈◊〉〈◊〉, Civi••atum & Burg••rum? So that to conclude, if in the 28▪ 34 and 35th. of Edward the First▪ a••l the Commons gave by the same Repres••ntat••ves as they do now, I can see no reason why they might not do so too, thirty or forty years before that time; and pray take notice also that here the Tenants in Ancient Deme••n gave likewise by themselves; and could not be charged by the Knights of Shires. And therefore as Mr. L••m∣bard in his Arche••on very well observes, this Prescription of not being chargeable with the rest of the County must be very ancient, si••ce the••e was no Land at that time reckon'd as Ancient Demesne, which had not be∣longed to the ••rown before the making of Dooms-day Book.

M.

I must confess what you have now said concerning the constant use of the words Communit••s, and 〈◊〉〈◊〉 C••mmune (coming after Comi••es and Barones) to express the Commons in Parliament in our Statutes and Records, would we••gh much with me had I not good reason to believe there were no such thing as Commons in Parliament in the sense now taken before the 49th. of

Henry the Third; and from which time I suppose it was discontinued ••till the 18th. of Edward the First; for which, I can give you very good proofs, when it comes to my turn; but in the mean time pray shew me by any Re∣cord, or Statute, that there were any Knights, Citizens and Burgesses Summoned to Parliament till the times I allow; for in the first place, you cannot shew me any mention of Commons in the Plural Number; in any old Statute before Edward the First's time, and as for the words Communitas and le Commune, which I grant were of••en used to express the Com∣mons after that time, your self own they are equivocal; and therefore when put after the Earls and Barons in the Instances you have given, may signifie the Community of the smaller Tenants in Capite, which were the only Representatives of the Commons that appeared in Parliament in those days; and I am the more incline•• to be of this opinion, because I have searched the old Statutes very exactly; and cannot find any mention of the word Commons in the Plural▪ much less of Knights, Citizens, or Bur∣gesses, till the Statute of 34th. of Edward the First, 〈◊〉〈◊〉 Tallagio n••n conced••••∣do (made in the 34th. of Edward the First) wherein I grant they are express∣ly mentioned; and as for Writs of Summons you can produce none till the 23d. of this King, to Summon them to Parliament; though I shall shew one by and by that the Doctor has found out of the 18th. of Edward the First, whereby he proves they were then Summoned after about twenty-six years discontinuance; therefore pray shew me if you can by any suffici∣ent proof that they were there in Henry the Third's Reign except once, or in Edward the 1st's till the 18th.

F.

I confess your Doctor has not only ex••eeded all other men but himself too in this rare discovery, for whereas in his first Edition of his Answer to Mr. Pety••'s Book, he was content to follow Sir William Dugdale, and make the Commons to have been first Summoned to Parliament in the 49th. of Henry the Third, and to have commenced by M••••ford's Rebellion, and so to have still continued on; now the Doctor upon second thoughts, in ••is Edition in Folio, will have them never to be Summoned any more than that once, because forsooth he cannot find them mentioned in such express words as that he cannot evade them, by saying the sense is equivocal; and if the Commons not being expressly mentioned in our Statutes were a sufficient reason to prove them not to have been there; were the Writs of Summons lost as well after as they are before the 23•• of Edward the First, you might as well have faced us down, that there were none in all that time till the Sta∣tute de Tallagio non concedendo, you now mentioned. And for proof of this pray see the Statute called Articuli super Char••••s, made in the 28th. of this King, which is said to be made and granted by the King at the Request of the Prelates, Earls and Barons, who are only mentioned in this Statute, and yet certainly the Commons were then at this Parliament, as appears by the Writs of Summons and Expences I but now mentioned, and sure their assents were given to it, as well as the Bishops and Lords, I could shew you the like in many other Statutes of this King, nor are the words Communit••s, or Commonalty, ever mentioned above twice in all the Statutes of this King's

Reign, viz. in that of Westminster the first, and that against Bearing of Arms; neither is the word Commons to be found above once or twice in all the Statutes of Edward the Second; in the Statutes made at Lincoln, in the 9th. of this King, 'tis said to be done by the King, the Counts, Barons and other Grands of the Kingdom; now if these general words did compre∣hend the Commons in those times, you grant they were constantly Sum∣moned to Parliament, I desire you would give me any good reason why the same words may not as well comprehend them long before? and if the bare omission of the distinct Orders or States of Men that gave their assents to the making of any Statute, and the different penning of Acts of Parlia∣ment were a sufficient reason to prove they had no hand in it; I doubt two parts in three of the old Statutes of Henry the Third, and Edward the First, would have been made without the Consents either of the Bishops or Lords; since in most of them there is no mention made of either; and that what I say is true, pray at your leisure peruse these Statutes following, viz. de Distriction••, Scacarti of the 51 of Henry the Third, with other Sta∣tutes made in the latter end of that King's Reign, as also that of Acto•• Burnel made in the 11th. of Edward I. that of Winchester made in the 13th. of this King; that of Merchants in the same year; as also those of Circum∣specte agatis, and Quo Warranto, and see if you can find any mention either of the Lords or Commons in them.

But to come to direct proofs, tho I grant the words Knights, Citizens and Burgesses was not expressly mentioned in our old Statutes; yet I shall prove to you by other words of a much more comprehensive signification, that they appeared in Parliament in the very beginning of Henry the Third's Reign▪ for this we need go no farther than the old Manuscripts, as well as Printed Copies of Magna Charta; which was first Granted in the second year, and a∣gain confirmed in the 9th. of Henry the Third, both which conclude thus, Pro hac autem Donatione & Concessione, Archiepiscopi, Episcopi, Abbates, Priores, Comites, Barones, Milites, libere Tenentes & omnes de Regno nostro ded••∣iun•• quint••m decimam pa••tem omnium mobilium suorum. Now can any thing be more express than this Clause, viz. That the Archbishops, Bishops, Abbots, Priors, Earls, Barons, for themselves and the inferior Orders, viz. the Knights and Freeholders, and all others of the Kingdom by their Lawful Representatives, gave this 15th. of their Moveables, at both those Parlia∣ments, in which this Charter was first made, and afterwards con∣firmed.

M.

I confess this Authority looks very plausible at first, but if it be strictly looked into; I believe it will prove nothing at all: for as to your interpretati∣on of these words, I do not allow it for reasons I shall shew you by and by; but in the first place give me leave to dispute the Antiquity of this Charter, which I do not take to be so ancient as you make it, for tho I grant there was such a Charter made in the 2d. and again confirmed in the 9th. of Hen. III. yet you have already had my thoughts of this Charter which you suppose to be Henry the Thirds, viz. that this which we now have is not properly his, but his Son Edw. I. since it concludes this: His testibus Bonifacio-Cantuari••n••is

Archi••pi••copo, E. Londinensi Episcopo, &c. Anno. Regni-nostri (Scil. Henrici 3.) nono; whereas this Bonifac here mentioned, was not Arch-bishop of Canter∣bury before the 27. Hen. III. nor was there any one whose name began with E. Bishop of London, during the time that Boniface held the See of Cant••rbu••y.

F.

I am very glad you have made these Objections against the Validity of this Charter; for if I can prove to you, that what you have now urged from your friend the Dr. is a meer Evasion against the Charter it self, I think you have reason to be my Convert. In the first place, pray give me leave to con∣firm the Vali••ity of the Charter it self; I therefore freely grant that the Original of this Charter is not to be found among the Statute Rolls in the T••ner, where there is nothing left of it on Record, except this confirma∣tion of it by a Charter of Impeximus of Edw. I. (the Conclusion of which is as you have now given) and I think there cannot be a greater P••oof of the careless keeping or voluntary im••ezlement of the ancient Statutes and Records of the Kingdom, than the loss of this great Charter, which certainly must have been inrolled at the time when it was made, as well as every common Grant made by the King to ordinary Per∣sons of Markets and Pairs, since we find Copies of it still Ex••ant in the ancient Annals of divers Monasteries, where they were formerly kept▪* 1.80 as in particular in the Annals of the Abby of Barton, Published in the first Volum of ancient English Writers, lately Printed at Oxford, which fully an∣swers your Objection, for instead of Boniface it is there Wit∣nessed by S. Archibis. Cant. i. e. Stephen Langton who was then Arch-bishop of Canterbury, near 20 Years before Boniface; there is also an &c. after the name of this Arch-bishop: And the same Charter is likewise recited, word for word with the former, and hath the same Conclusion concerning the granting of this 15th. by all the Parties above mentioned in the Chro∣nicle of Walter Hemingford Published by the Learned Dr. G••••e in his 2d. Volum of English Historians,* 1.81 only it hath no, Wit∣nesses Names at the end but the King himself Te••••e meipso, and farther both agree in all things material, with four ancient Manuscript Copies of this Charter of the 2d. of Hen. III. when he was in Minority, one of which is in the Cuttonian Library; a 2d. was lately in possession of Sam Baldwin Ser∣jeant at Law; a third is in the Hands of Iohn Cooke Esq chief Prothonotary of the Court of Common-Pleas, and a 4th. is at this present with Mr. Peryt of the Inner-Temple, which I my self have seen.

But to put this out of all doubt, there is still Extant a fair Original of this Charter of confirmation of the 9th. of Hen. III. (when he was of full Age) under the great Seal of this King (which is supposed to have belonged to B••••••ail Abby) and is now to be seen in the hands of Sir Nathaniel Powel Benches of the Inner-Temple, who is so civil as to Communicate it to all, who have the Curiosity to see so great a Rarity, so that tho it is not to be denyed, but that the Charter Published by Sir Edward Coke in his 2d. Institutes, is properly the Charter of confirmation of Edw. I. since Boniface was at that time Arch-bishop of Canterbury, and ••ulk Bishop of London (E. being by ••••stake put for F. yet I think no man has any cause to doubt whether that

Clause we dispute about be not in all the Copies of this Charter, as well as in this of Edward I.

M.

Well, admitting this Charter to be as ancient as you please, yet let me tell you▪ if your sense be, that the words at the end of this Charter, viz. omnes. de R••gon, those who gave, or granted this Subsi••y, were Members of that Parliament; if you wi•••• understand it so, and according to the literal meaning of the words then om••es de R••gn••,* 1.82 as well those th••t had Estates in Land, as those that had not, all C••py holders, all Tradesmen, all Bondmen and Villains (of which there were great store in those days) and all Servants were Members of Parliament. And so then I would willingly understand where ••ll these People should meet, how their Council shoul•• be managed, and how it is possible in such Meetings (i any such there can be) to prevent the greatest confusion imaginable. The meaning then of the words, must be, that the Arch-bishops, Bishops, Abbot, ••ar••, Barons, Knights, Free-Tenants, and all of the Kingdom, or all the King's Su••jects Dederunt, that is paid a Fifteenth part of their Moveables to the King, for his grant∣ing these Charters, not that they themselve•• gave, or granted this Subsi••y; and 'tis reasonable to conclude, that all the King's Subj••cts paid the Fifteenth part▪ because one way or other, little or much they enjoyed the benefit of them. I take this to be the Ge••uine sense of the words, but Mat. Paris, whom you now quoted, makes it very apparent, who were the constituent ••orts of this Parliament, for if you please to observe, the Men to whom the chief Justice Proposed this Fifteenth, and those who consulted about the King's Demands, and those that returned an answer to them; and also grant∣ed the Fifteenth part of the Movables, as well of the Ecclesiasticks, as Lai••s o•• the whole Kingdom, were only the Arch-bishops, Bishops, Earls, Barons, Abbots, Priors; and therefore they were the only constituent parts of this Parliament, as they were also of the Parliament, or great Council held at Mer••on in the 20th. Year of this King's Reign: whither says M••t. Paris, Consummato cum gaudio Nuptiali convivio Rex recedens a Londoni••s venis Merero∣••••m, ut ibi revocati Magnaies unà••um Rege de Regni Negotiis e••ntractarent.

F.

I think I can as easily answer this small Objection against on meaning of these words at the end of this Charter. Pray do, I affirm that these words are to be taken literally or the contrary? Therefore you do ill to put a sense upon me which I do not allow of, but pray tell who ever was so mad as to believe that these words are to be understood litterally; or that all those Persons who you here give us a Bed-Roll of, could all appear in Parliament, in Person, or had all Votes at the Elections of Parliament Men; and yet for all that, this Clause is true in a legal, tho not in a litteral sense, that all the Freemen of the Kingdom granted this 15th. viz. that the Prelates and Temporal Lords in their proper Persons, and all the rest of the Kingdom by their respective Representatives granted this Fifteenth; I hope it is a good Rule in your Civil, as well as our Common Law, that he who gives, or grants any thing by his sufficient Proxy or Representative is said to perform it by himself; and in this sense, all the Men in the Kingdom gave, or granted, a Fifteenth for

the confirmation of this Charter; and so at this day, it may be said in a legal sense, that all the Men of the Kingdom do joyn in granting the King a Tax by themselves, or their Representatives in Parliament, tho none but such as are Free-holders of 40 ••. a Year, can have Votes at the Election of Knights of the Shire, nor any but the Aldermen of divers Cities and Towns, and the Freemen of Corporations, and the Scot and Lot-men of Buroughs, who have any Votes at the Election of Citizens, or Burgesses.

And that your Dr. himself, tho he hath misled you in the sense of this word Dederunt, yet can grant this to be a reasonable Interpretation of this Clause, when he is in a good humour:

Pray remember his Comment upon the Re∣cord of the 34th. of Edw. I. which I gave you but now; wherein, after the Barones it follows, that milites Liberi homines & Communitates Comitatuum grant∣ed a 30th. part of their Moveables, and the Communitates Civitatum & Bur∣gorum a 20th. whereupon he tells you these words are so expressed as if they had been all there in Person; but these words signifie no more, then that the Knights and Freemen gave by their Representatives and that the Communities of Counties, and these Citizens and Burroughs gave by their Representatives. and why these Milites Liberi homines & Omnes de Regno might not do it as well in the same sense?

When this Charter was granted and confirmed, I should be glad if you could give me a sufficient reason, so that I shall refer it to your own Ingenuity, to consider when the Charter says expresly, that all the Persons therein mentioned, gave a Fifteenth, whether it be not a manifest wresting of the Grammatical signification of this word, Dederunt to render it they pay'd; for at this rate a Man may make words signifie just what he pleases. But our ancient English Historians are the best Judges in this case, for the ancient Annals of Waverly-Abby Published in the same Volume I last mention∣ed, under the Year 1225. having given us a short account of the granting th••se Charters, 9 Hen. III. recite the conclusion of the great Charter in the same words as they are in the Charter it self, only before Dederunt there is also added the word Concesserunt, which shews that the Author of this part of those Annals, who might very well write at the same time, or presently after the Charter was granted, by his Paraphrase of Concesserunt, seemed to intend to prevent any such mistake in the the signification of the word Dederunt. And that this was the constant opinion of all Historians and Antiquaries to this day; I will shew you from Henry de Knighton, who lived within 100 Years after this Charter was granted,* 1.83 in his History hath this passage in this Yera, viz. 9. of Hen. III. Post haec Rex Henricus concessit Magnatibus terrae duas Chartos unam de Foresta, & aliam de Libertatibus ob quam causam Com∣munes Regni concesserunt 15. partem mobilium, & in mobilium: From whence it appears plainly that at the time when this Author writ, it was generally be∣lieved that the Commons (called Milites & Libri Tenentes in this Charter granted this 15th. of all their Goods.

I shall conclude with a modern Authority of a Person, who you will own to be a Man of great Judgment and Learning, viz. Sir Henry Spelman, who in his Discourse of Magna Charta, inserted in his Glossary, hath this remark∣able

passage, Demum Anno. 9. Regis Henrici concedente Cle∣ro,* 1.84 & Populo cum Magnatibus Q••intodeceimam partem omnium rerummobilium totius Regni Angliae; renovantur Chartae Lib r∣tatum, prout sub Rege Iohanne prius erunt conditae, where it is plain, that by Populus he meant the Commons as distinct from the Lords and Clergy. As for what you say further, whereby you would set up the Authority of Mat. Paris against the express ••ords of the Charter it self: I suppose you or the Dr. from whom you borrowed this N••tion, are the first who interpret anci∣ent Statutes and Records, according to the general Words of Historians: Whereas I always thought till now, that the sense of Historians ought to have been understood by Records, and not vice versa, since the former differ one from another in their manner of expression of the constituent parts of our great Councils or Parliaments, and for brevity sake, express themselves in as few words as they can.

But notwithstanding the Conciseness of those expressions which we find in Mat. Paris, and other ancient Authors; yet I think even in this place now cited, there are words enough to prove there were other Lay Persons at this Coun∣cil, besides Earls and Barons there mentioned, or else, what is the meaning of these words Aliis U••iversis immediately after Baronibus, to whom Hubert de ••urgh proposed the Kings Demands, and who also gave their answer to them? And if these Gentlemen were not Barons, as certainly they were not (or else to what purpose was this distinction made) then they were meet Commoners, and so we find that there were Commons in Parliament from the Authority of Mat. Paris before the 49. Hen. III. which is likewise proved by the Statute of Merto•• (which I have lately cited) in the conclusion of its Preface runs thus, Ita provijum fui••, & conc••ssum t••m à predictis Archi-piscopis, Episcopis Comi••i∣bus, Baronibus, quam ab ipso Rege, & Aliis. Now pray tell me who these & Alii were if not the Commons, for you did not answer this Question when I last mentioned this Statute.

M.

I shall tell you my thoughts of these Alii by and by, when I come to these words omnes de Regno; but in the mean time, give me leave to give you the Drs. Interpretation of this word Milites put here af∣ter Barones, which Milites were not Knights of Shires (as you suppose) but Tenants in Capi••e by Military Service, as appears by the Assize or Statute of Richard the I. quoted by R. Hovelen in his History,* 1.85 which is said to have been made, per Assensum & Consilium Archiepiscoporum, & Episcoporum, Abbarum, C••miutum & Baronum, & Militum. Now these Milites were often stiled Barons, and the Barons, Milites. Nam Miles (saith Sir Henry Spellma••) quem Baronem vocibant non à Militari Cingulo (quo Equite crebantur) sed a Militari ••edo quo alias possessor & liberè Teneus, num upatus est, nomen sumpsit, that is, such as had Lands given them for, or such as held Lands by, Military Service and did Homage and Fealty to those of whom they held their Lands, and in this sense, Mat. Paris calls all the Temporal Nobility Milites, when in the Parliament 37. of Hen. III. he says a Militibus Concessum est Scutagium illo Anno. ad Scutum tres Marc••t.

F.

I think your Interpretation of the word Milites i•• forced, and quite con∣trary to the true meaning of this Charter; now pray shew me the consequence,

that because the Barons were anciently stiled Milites; that therefore your Tenants in Capi••e were then stiled Barones too; which is not true, and quite contrary to this Charter it self, where these Milites (whoever they were) are put after the Barones, as a distinct Order of Men from them, whereas if the terms had been then reciprocal the words Baron••s, or Milites (chu••e which you please) would have comprehended both; but indeed this Title of Miles was then of a much larger signification, and took in all Knights of whatsoever Tenancy, whether by Military Service or Socage, as appears by those Writs of the 25th. and 26th. of Henry the Third, which I have alrea∣dy cited, whereby those that held Estates sufficient to maintain themselves de Tenemento, ••o tam militari, quam Soc••gi, were a like Summoned in to take the Order of Knighthood, and when Knighted were certainly as good Milites as the best of your Tenants in Capit••, and so might very well be reckon'd a∣mongst the Milites in this Charter: But pray tell me what say you to these following words, Liberi Tenent••s & omn••s de Regno?

M.

These likewise bear a like Interpretation, for by these libere Te∣nentes, that immediately follow in this Cha••ter after Milites I suppose were mea••t no other than the lesser Tenants in Capi••e, who ha∣ving scanty Knights Fees,* 1.86 or part of Knights Fees, desired not Knighthood, or had compounded, or fined for it, that they might not be made Knights, and who not being actual Knights, are here called Free Tenants or Freeholders, as I have already told you at our last meeting.

F.

Pray give me leave to answer this Interpretation of the word liberi Tenentes, before we proceed farther. You may remember that I have an∣swered all your Authorities, whereby you would prove that the Tenants in Capi••e were at this time the only proper Freeholders of the King∣dom; which is false, since I then proved to you from Sir Henry Spelman's Glossary, that any Freeman having an Estate of Inheritance, was as much Li∣bere Tenens, a Freeholder as the best Tenant in Capite in England. Indeed if the words had been Milites & libere T••n••ntes, qui de Rege tenuerunt in Capite, you had said somewhat, but otherwise it is all meer supposition, without any ground. But pray go on to the last wo••ds in this Charter, & omnes de Regno nostro; what can they mean ••ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative.

M.

If you do not like our sense of these words, Milites and Libere Terentes: I cannot help it, nor shall I dispute them longer with you; but as for this last Clause in the Charter,* 1.87 & omnes de Regno, it only means, all these who were Tenants in Capite in gene∣ral in the same sense, as when our ancient Historians mention Regnum, & S••cerdotium; by Regnum is to be understood both the Temporal and Spiritual Barons, great and small; the Kings Justices, or any other that exercited any share or Ministerial part of the Government; as perhaps all those di•• one way or other by coming to our great Councils or Parliaments, &c. all which is evident from the words of the Quadri parti••e History, concerning Thom••s Becket, thus, Rex apud Clarendun. Regnum convo a•• universum. Quò com venis•• ut

Prasules, & Proceres, &c. i. e. the whole Baronage called together by the Kings Writ, or a full meeting of the Spiritual and Temporal Ba∣rons, both great and small. I pray also remember that passage you your self made use of but now, out of Mat. Paris, whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite; because that after the Curia held at Christmass, the King immediately issued out his Writs, commanding omnibus ad Regnum spe∣ctantibus, to appear at London; and yet you see there are no more mentioned to be Summoned than the Archbishops, Bishops, Abbots, Priors, Earls and Barons.* 1.88 So that we may hence learn the true meaning of these words, omnes de Regno, at the end of this Charter; for these omnes de Regno, were the same with the omnes ad Reg∣num spectantes, in Mat. Paris, the Regnum, or Government, the Communi∣tas Regni, the totalis Regni universitas, the insluita nobilium multitudo; and also gives us the meaning of those words omnes alii de Regno, in the close Roll of the 19th. Henry the Third,* 1.89 to the She∣riff of Somersershie, Scias quod Comites & Barones, & omnes alii de toto Regno nostro, &c. Concesserunt, &c. Which are further explained by a Writ in the same Roll about the same business, directed to the Sheriff of Sussex (which you have likewise cited) be∣ginning thus,* 1.90 Sciatis quod Arohiepiscopi, Episcopi, Abbates, Priores, Comites, Barones & omnes alii de Regno nostro Angliae, qui de nobis te∣nent in Capire nobis concesserunt, &c. Here the omnes alii de Regno, were the omnes qui de nobis t••nent in Capite; which were then all the Regnum, or Communitas Regni. So likewise it may be farther proved from a Record of the 48th. of Henry the Third,* 1.91 Rex omni∣bus, &c. cum venerabiles Patres G. E. Eborum Archiepiscopus, &c. & alii Praelati, Magnates, Milites, libere Tenentes & omnes alii de Regno nobis nuper in Articulo necessitati•• servitium fecerunt, & sulisidium, &c. And I may also put you in mind of the Writ I cited but now directed, Archiepis∣copis, Episcopis, &c. Comitibus, Baronibus, Militibus & omnibus aliis de Co∣mi••aru Kanciae, &c. for the Levving of forty Shillings upon every Knights hee in that Country. Now this Writ could not be directed to all the Men in Kent, but to all such as paid Scutage, for not a fortieth part of them were Tenants in Capite, or Military Service: So that these omnes alii de Regno, and Omnes alii Comitatus, were the same one with the other, and otherwise it could not be: for by Omnes de Regno, or Omnes alii de Regno, the Inhabi∣tants in general could not be understood, for they never were Summoned, no not the Hundredth part of them to meet in Great Councils; for 'twas impossible they should, and perhaps not above a fourth part of the King∣dom paid to this Fifteenth, if we consider how many Servants, Villain••, Bondmen, and many such People there were than in the Nation that paid nothing.

F.

You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous; for methinks it is a strange piece of confidence in your Doctor, when the Charter says expresily, That Omnes d••

Regno; all the Freemen of the Kingdom gave this 15th, to restrain this Act only to the Tenants in Capite, who were but a few in comparison to the whole Kingdom; this is indeed to make words signifie any thing he fancies.

But to answer your Authorities, which are founded all upon false suppo∣sitions, without any proof. As to your Authority from the Quadrilogus Hi∣story of Thomas B••ecket; it is true, that the Praesules and Pr••ceres are there called Regnum, the Kingdom; but I have already proved at our last Meeting; that this word Proceres was of so comprehensive signification, that it took in all the Principal Men of the Kingdom, as well those that were Lords, as those that were not; so that the chief Citizens and Magistrates of our Cities and great Towns, are often stiled Proceres & Magnates Civitatum, in our ancient Historians and Records, and certainly the great Free-holders, or Knights of Shires did much more justly deserve that Title.

As for the other passage out of Mat. Paris, where the Bishops, Ab∣bots, Earls and Barons, are called omnes ad Regnum spectantes; this is but a general way of expression in this Author, and proves nothing: For either the word Barones, takes in all the smaller Tenants in Capite, or it does not, if the latter, then this Author does not exactly recite all the Orders of Men, whom your self must acknowledge to have appeared there; since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author; if the former, then it is plain, that he thereby comprehended more then those who were really Barons. Since it is certain that the smaller Tenants in Capite were not so, nor are so much as called so in King Iohn's Charter; and then make the most of this word Barones, it may in a large and common acceptation, take in all the chief Free-holders, or Lords of Man∣nors, which (as I have already proved) were often called Barons in our ancient Historians, and Laws of the first Norman Kings; and Mr. Cambden tells us that under the word Baronagium, omnes Regni ordines continarentur: This I say, supposing that by this infinita Nobilium multitudo, is to be understood, all the cheif Gentry, or Free-holders of England, called often Nobilitas Angliae, as I have already made out, and which may also take in the Representatives of Cities and Towns; but if we should suppose, that by the Barones here mentioned, are to be understood only the Tenants in Capite; yet, since they, together with the great Lords, made the chiefest Figure in the Government; it was easie for him to over-flip the particular mention of others, it being enough to comprehend them with the Representatives of the rest of the King∣dom, under the general Phrase of Infinita Nobilium multitudo, as I have al∣ready said, but I always thought that the Conciseness of Historians, was to be explained by our Statutes and Records, and not that their express words should be interpreted by the concise Phrases and Expressions of Histo∣rians; and if by omnes de Regno are to be understood all the Tenants in Capite in general; how could this be without a notorious Tautology, since if it be as you say, that the Bishops, Abbots, Earls and Barons comprehended all the greater Nobility, and the Milites & libere Tenentes, all the lesser, or Tenants in Capite, (who made then the whole Kingdom) if so, what can these words omnes de Regno here signifie, but so many idle words without any sense or meaning?

But it will be now more easie to answer your false Interpretation of these words, omnes alii de Regno, which you will needs have to signifie only the Te∣nants in Capite; and it will be no hard matter to shew you the Drs. Prevari∣cations on these words; for as to the first Writ directed to the Sheriff of Somerset-shire, tho I confess these words at the beginning of the Writ, are omnes alii de toto Regno nostro; yet the Dr. has in his Glossary concealed the words that follow, which plainly restrain them, to Tenants in Capite, and their under Tenants by Military Service; but if you please but to turn to the Writ which he has given us at large in his Appendix, Numb. 14. you will find first, that this Writ recites, that the Earls, Barons and omnes alii de Regno, had granted the King an Aid to two Marks on every Knights-Fee, quae de nobis Tenent in Capite: Secondly, that at the Command of the Earls, Barons and all others that held in Capite, the Sheriff should distrain omnes milites & libere tenentes qui de eis tenent per s••rvitium militare, who were likewise to pay the King the like Summ of two Marks for every Knights Fee, so that you may here plain∣ly see that this could be no general Tax granted by the whole Kingdom, since none but Tenants in Capite and their under Tenants by Knights Service were chargeable with it, which, if given with their consents, must have been done in full parliament, and in which they had Representatives of their own choo∣sing, and if without their consents, was directly contrary to Law.

But you need go no farther then this Writ you have now cited, to prove that the Milites & libere tenentes, were not at this time only Tenants in Ca∣pite, as you suppose but their Feudatory Tenants also, as appears by the ex∣press words of this Writ, which orders the Sheriff to distrain omnes Milites. & libere tenetes qui de ci tenent p••rservitium Militare; but as for the other Writ to the Sheriff of Suss••x, which (as you say truly) relates to the former, to the Sheriff of Somerset-shire; it sufficiently interprets those general words, omnes alii de R••gno, and expresly restrains them to omnes alii qui de nobis tenent in Capite, who in a Council of themselves alone, granted this Tax for themselves only, as I have already proved, which, whether it was according to Law or not, we shall inquire by and by.

But in the mean time, give me leave to answer to your next Record of the 4••th. of Hen. III. which recites an extraordinary Service and Aid done by the Prelati, Magnates, lib re Tenentes, & omnes alii de Regno: Now that this was not a Service performed, or an Aid given by the Tenants in Capite only for the whole Kingdom; the word Subsidium may teach you, which was never granted otherwise, then by the whole Kingdom in Parliament. But let us first consider the substance of this Record, which is indeed but the Kings De∣claration or a right to all his Subjects in general, or the Freemen of the whole Kingdom, that what they had lately performed in Articulo nec••ssitatis praedictae non sibi cedat in prajulicium, n••c ad posterum tra••atur in consuerudimen, vel conse∣quentiam nec ad bujus modi servi••ium compellentur; which being the effect of this Record, now see the cause why it was granted, which you may find in another Record of the same Year,* 1.92 and on the Roll, and to which this Rcord you cited relates, which is a general

Summons directed, Archiepiscopis, Episcopis, Abbatibus, Comitibus, Baronibus, Vice-comitibus, Militibus, liberis Hominibus, & Vniversae Communitati Comi∣tatus Lincolniae, commanding them all, even the Citizens and Townsmen im∣mediately to appear with such Arms as are there expressed (and were proper for each Mans Estate and Condition) for the common Defence of the King∣dom, against strangers then ready to invade it, and this Record also says, eodem modo scribitur caeteris Vice-comitibus Angliae. Now since it appears by this Writ of Summons by which this Service and Aid was performed, that not only the Tenants in Capite, but all the Subjects of the whole Kingdom were engaged in the performance of it; can any body, but one who will take things by halves, suppose that by these omnes alii de Regno there mentioned (and who must certainly be the same Parties intended in the Drs. own Record, viz. all the Freemen of the Kingdom) could be meant no more then the Lesser Tenants in Capite, taken altogether, when they had been (according to our sense) all particularly named before?

But that by these omnes de Regno cannot be here meant only the Tenants in Capite,* 1.93 but all the Freemen of the whole King∣dom, I shall prove by another Record of the 16th. of Hen. III. and is the very Writ I gave you before, wherein it is recited, that the Villani together with the rest of the Liberi Homines had given a 30th. of their Moveables, in consideration of which, this Writ con∣cludes thus, Concessimus etiam Archiepiscopis, Episcopis, Abbatibus, Prioribus, Co∣mitibus, Baronibus, & vobis omnibus aliis de Regno nostro, quod tam Charta no∣stra, de Foresla, quam alia Charta nostra de Libertatibus, quas eis, & vobis fieri fecimus de caetero in omnibus teneantur; so that it plainly appears, that by these words in this Record omnibus Aliis de Regno, must be understood all the Free∣men of the Kingdom in general, unless you will allow none to have had any share in these Charters, or to have received any benefit by them, but the Drs. Tenants in Capite alone, which sure you will not affirm.

But least I tire you as well as my self, in dwelling so long upon things so plain and obvious, were not they by too much industry, rendred obscure, I come at last to the conclusion of your discourse, which is no more then a repeti∣tion of what you had said at first; that because all the Kingdom could not be Summoned to appear in Parliament, and that Villains and Servants &c. never paid to this Tax; that therefore the words omnes de Regno are not to be understood literally; (a doughty discovery) and therefore you have found an expedient to help this contradiction by your Tenants in Capite, and Thy Knights, Citizens and Burgesses for the Laity, and by the Procuratores Cleri for the Inferiour Clergy; whose Interpretation is most agreeable to truth, I durst leave to any indifferent Judge; for I must needs tell you once again, I cannot see any manner of reason, either from Authorities, or from the Na∣ture of the thing, that your Tenants in Capite could be the omnes de Regno in a legal sense, and as such did represent all the Freemen of Estates in the whole Kingdom; therefore if you can prove this, it may go far to convince me, otherwise not.

M.

Since you will not rest satisfied with those Authorities I have already produced to prove it;* 1.94 pray let me discourse with you a little more particularly of the nature of Tenures by Knights Service. I therefore suppose that the Dr. hath very well prove by several Records, as also the two Writs of 19th. Hen. III. to the Sheriffs of Somerset and Sussex, that the King anci∣ently by his Prerogative, and his original Power and Right, reserved up∣on Knights Fee, did Tax the Military Tenants, of his Tenants in Capite, and their other ordinary Free Tenants, and by his Writs caused them to pay both ••cutage Tax and Scutage Service, and other reasonable Aids, as often as necessity required.

F.

I grant indeed, the matter of fact to have been sometimes as you say, since there is no averring against express Records; but I say likewise, that as for those Writs the Dr. has given us concerning the Kings Ordering the Sheriffs to distrain the Mesne Tenants of the Tenants in Capite for Scutage Service, as to Marry their Daughters, or for the finding of Men in any Warlike Ex∣pedition, it was no more then those Mesne Tenants were bound to do by the Tenures of their Estates; if they had failed to serve their Lords in Per∣son, or by sufficient Deputies; and therefore the King might legally grant them Scutage upon such Tenants, and perhaps might also change their Service in Person into a pecuniary Aid, as appears by some of those Writs the Dr. has given us; and this not by his Prerogative, but by Law; so likewise, tho your Tenants in Capite could Tax themselves in their distinct Council, or else in the Common Council of the whole Kingdom at what rate they pleased, for the Knights Fees they held of the King; and tho the King might some∣times undertake by this pretence, to I evy a Scutage of two Marks on their Under-Tenants also; yet does it not appear by either of those Records you have now cited, that they gave for more then themselves alone, the words in the Writs being only, that they had given the King Esse••ax Auxilium of two Marks upon every Knights Fee (as well Wards as others) who held of him in Capite, without any mention of their Mesne Tenants; so that if the Sheriff was afterwards ordered to distrain these Mesne Tenants also, for two Marks for each Knights Fee they held of their Lords; this was straining a point of Prerogative, and was expresly against Law; for at this rate the King might by the l••ke Prerogative have Taxed all the Bishops, Abbots, great Lords and all other Tenants in Capite without their consents, as well as their Mesne Tenants, tho it was contrary to the express words of the Charters of King William I. and King Iohn, which you your self cited at our former Meeting, so that granting the matter of fact to have been pra∣ctised sometimes as your Records make out, this is no proof that this was a constant Law, or settled Custom, much less that the King had a right so to do.

M.

I do not doubt,* 1.95 but that I can prove to you, that what this King then did in charging these mesne Tenants was ac∣cording to his ancient Prerogative, and what himself and his Predecessors had frequently done both before and after the Clause in King

Iohn's Charter of Nullum Scut••gium, vel Auxilium ponam in Regno meo, &••. was granted, nay after it was granted Hen. 3. and Edw. 1. taxed their Demeasns through England,* 1.96 tho not the whole Kingdom by the advice of their Privy Council until the Sta∣tute de Tallagio non concedendo was made in 34 E••w. 1. and both Rich. 1. and K. Iohn had taxed the whole Kingdom without common assent before the Grant of Magna Charta; as also in the Reign of Rich. 1. as you may find in Hoveden,* 1.97 who lived at that time, the passage is long, and therefore I shall only give you the beginning of it, viz. that this King Anno 1198 (Regno 9.) accepit de una∣quaque Carucata terrae totius Angliae V. solidos de Auxilio, &c. and then goes on to shew us the manner how it was raised and collected; and 'tis observable, that he uses these words Auxilium and Tallagium for the same Tax, so we find in Mat. Paris, that King Iohn took a seventh part of all Moveables without common Assent,* 1.98 and another time a Thirtieth, the great Men and Clergy grumbling at it. K. Hen. 3. also taxed all his Demeasn in the 33d year of his Reign,* 1.99 as appears by a Writ in the close Roll of this year, whereby he also commands the Sheriff of Bu••ks that he make Philip Basse•• a Rati••nabil•• Tallagium de hominibus suis de eo tenentilus in Mannerio de Wycumb, quod aliquando suit Dominicum Praedec••ssorum R••gis, &c.

In the 39th. year this King (as the Doctor shews us at large by a Reco••d in the keeping of the Remembrancer of the Exchequer) he taxed all his Demeasn; and among the rest the City of London at 3000 Marks;* 1.100 which tho with some contest mentioned in this Record, they were at last forced to pay; because it was found upon Re∣cord that this King and his Father had several times ••alliated or Taxed the sai•• City in like manner, at the sums therein mentioned; so that at last the Mayor and Citizens were fain to acknowledg themselves th••s Talliable by the King.

So in the 52. year of his Reign he Taxed all his Demeasn Lands beyond Tren•• by his Escheators;* 1.101 and this Right was acknowledged by all the Bishops, Earls and Barons in the 33d year of Edw. I. as app••a••s by their Petition to him in Par∣liament, in these words, Al P••ti••ionem Arc••iepiscoporum, Epis∣porum, Praelatorum, Comitum & Baronum & aliorum probo∣rum hominum de Terra p••tentium quod Rex concedere veli. quod ipsi p••ssunt ta••••i••re antiqua dominica, unde sunt in Tenantia, ••icut R••x Dominica sua taliavit; it•• respon••um est, fiat ut petitur.

From all which you may plain see that the Kings of England had ancient∣ly a Prerogative of laying Taxes not only upon their own Tenants and their Mesne Tenants who held under them, but upon the whole Kingdom too; and it their Successors have acted otherwise it has proceeded from their meet grace and favour who have tyed up their owne hands from exercising this Prerogative.

F.

I confess you have muster'd up a great many Authorities; but for what end I know not unless it be to prove that some former Kings stretcht their Prerogative to act directly against Law, and their own Charters to the contrary; and to justifie them in it when they have do••e, as if all things were done according to their Lawful Prerogative, because they did it; if this be Law or Reason either much good may do you with it; for at this rate the King notwithstanding all Laws made and sworn by him to the contrary may take what he pleases out of our Estates without our consents, because his Pre∣decessors broke the Laws and their Coronation Oath into the Bargain; but you might have remembred that a de f••cto ad jus non datur consequentia; but I doubt the Precedents you have now brought, will not come up to the proof of the assertion you have laid down; for it is plain as well from King Iohn's Char∣ter, as by that passage in Bracton, I but now cited, whereby it appears that extraordinary Taxes such as Hidage, Corage, and Carvage, & alia (under which I suppose was included your Scutage-Tax also) could not be imposed without the consent of the Common Council of the whole Kingdom; when the King met his People in Parliament; if then this were Law whatever K. Iohn o•• Henry the Third, or any other King acted contrary to this Rule, was illegal, and produced among other mischiefs the general revolt of all the Baronage, i. e. as well the Inferior as Superior Nobility of the whole Kingdom, till such time as our Kings, finding they could do no good by force, were fain at last to content themselves with the Legal Prerogatives of the Crown, and by new Laws and fresh Declarations of the ancient Law to de∣clare it unlawful for them to impose any Taxes upon their Subjects without their consents in Parliament.

But let me tell you that by thus setting up the Kings Illegal Prerogative of taxing the Mesne Tenants of their Tenants in Capite, you quit the que∣stion; for I asked you by what right the Tenants in Capite (whom you suppose) could grant by this great Charter a Fifteenth of the Moveables of the whole Kingdom as well of those who did not hold of them by Military Service, as of those that did, nay of those who never held of them at all; and you then fly presently to I know not what unknown Royal Prerogative of Taxing the Mesne Tenants of the Tenants in Capite at pleasure; which was either according to Law, or it was not, if the former, I have already proved he could not do it by Law at all; but if a∣gainst Law, there was the like reason why he should have had the like Pre∣rogative over his Tenants in Capite too; even over the very Bishops, Ab∣bots and Temporal Lords; and then I desire to know whether the great Council of the Kingdom had not been long since destroyed and given up.

But to examine your Authorities, it is true, Hoveden says of Richard the First, that accepit de unaqua{que} Hida Terrae V. solidos, yet does it not therefore follow, that he took this Tax without consent of his great Council, it was the ordinary Phrase of Writers in those times to say, Rex accepit, i. e. received such a Tax, when indeed he took nothing but what was given him by his Parliament. And therefore tho we find this Tax not mentioned in

any other Writer, but only Hoveden, and so cannot give you an express proof that this Tax was granted in a great Council, yet it is most likely (nay certain it was) for the word accepit does not in its own nature import any violent or illegal exaction▪ and therefore considering the nature of the thing, it is greater reason to suppose that this aid was granted by consent; since this same Author tells us in the relation of this affair, that this Money was received by the hands of two lawful Knights of each Hun∣dred, and that they did answer this Money to the Exchequer, Coram Episco∣pis, Abbatibus & Baronibus ad hoc assignatis, who would never have undertaken it, had not this Tax been granted by the Common Council of the Kingdom; but that this King could not tax the whole Kingdom at his pleasure may appear by a relation out of this very Author: in the very same year,* 1.102 but a little before, viz. that when the King demanded by Hubert Archbishop of Canterbury, that Homi∣nes Angliae the men of England should find him 300 Milites, i. e. Knights to stay one whole year in his Service, or else would give him so much money as that he might therewith maintain those 300 Knights in constant pay,

viz. to every Knight three Shillings of English Money wages a day, and that to grant this, all the rest were willing, as not daring to resist the King's will, only Hugh Bishop of Lincoln as a true servant of God abstaining from all evil answered, That he would by no means agree to the Kings desire, be∣cause it would redound to the detriment of his Church, &c. and so it seems the business fell and came to nothing.

Now it is plain that this Request must have been made in the great Council of the Kingdom; or at least in that of the Tenants in Capite, and if he could not charge his Subjects with the keeping but of 300 Horsemen for one year without their assents can any body believe that he should presently after extort a much greater Sum, viz. five Shillings out of every Plow-land in England. But as for all your Precedants for King Iohn's reign, he was such a Notorious Tyrant and breaker of his Coronaci∣on Oath, and common Faith both to God and man, that I hoped that neither your self nor any good English man would have fetcht Precedents for Pre∣rogative, from so pros••igate a Reign as his, and in which I grant there were more than once illegal Exactions of this nature, which yet are branded by those very Historians that relate them for great oppressions and unjust exactions;* 1.103 as particularly in this first instance of out of Mat. Paris of K. Iohn's taking away by force the Seventh of the Moveable Goods of the whole Kingdom; which is by this Author called by no bet∣ter than Rapinam, Rapine or Robbery.

The same I may say to the like Exactions of his Son H••n. the Third, which are branded by all Writers as horrible and illegal oppression••, nay are owned to be so by this Kings frequent Confirma∣tions of Magna Charta, and Acknowledgments of his breach of them, and pro∣mised to observe them better for the future; But I am sorry to find your Do∣ctor, whom you follow, both in his Answers to Mr. P. and Mr. A. as also in his compleat History still to cite the most violent and illegal Actions, nay the

very perjuries for ••lowers of the Crown, and Royal Prerogatives.

But as for the Authorities you urge for this Kings Talliating his De∣mesnes without consent of Parliament, you your self grant that this Talli∣age was not general upon the whole Kingdom; and if so, could only con∣cern his own Tenants in ancient Demesn, and none else; who were always exempted from being taxed with the rest of the Nation▪ because they were lyable to yield the King a reasonable Talliage ratione Tenurae whensoever he needed it; yet this was counted rather a priviledge than otherwise, since they were not only free from all other burthens and Parliamentary at∣tendance, but were also Taxed much less than the rest of the Nation in re∣gard of their Tilling the Kings Lands; but when this reasonable Pre∣rogative grew to be abused, and the Exactions levyed upon them became intollerable, then they would no longer suffer it; but got it taken away by the Statute de Tallagio non concedendo; after which we find the Tenants in ancient Demesne frequently giving their shares of Aides and Subsidies in Parliament by Delegates of their own, as in the Record of the 35th. of Ed∣ward the First, which you have now cited; till at last they came to be resol∣ved into the common body of the Kingdom, but a•• for the City of London▪ it was never taken for part of the Kings Demeans, and so is not to be found in Dooms day Book, but as appears by Record held of the King in Capite, and therefore could be no otherwise Taxed then as the rest of the Tenants in Capite, that is, by the Common Council of the Kingdom. And this made the Londoners deny to be otherwise Talliated, as appears by this Record of Henry the Third, which you have now cited. But the truth is they had this Exaction first laid upon them in the exorbitant Reign of King Iohn; and this was afterwards trumped again upon them in all the ill part of his Sons Government, because his Father had done it before; and I doubt not but if Ship-mony had passed unquestioned, and been as often paid in the Reign of K. Charles the First, but that it would have been urged as a Precedent in the Reign of Charles the Second.

But as for your last Authority of the 33d. of Edward the First, pray take notice, that it is before the Statute de Tallagio non concedendo, and extends only to such Estates in ancient Demesn as were held of the King by Noble∣men or Gentlemen, either by Gift, or Purchase; and which, for all that still kept the ancient custom of being Talliated by the King, as their under Tenants were by them, to enable the Lords to pay the Kings Talliage; and in this sense I understand these words in this Record, unde sunt in Tenantia; i. e. of which they are in Tenancy to the King. Nor does the Record call them Dominica sua, as it does the Kings Demesns that follow; so that this could not be a Tax upon all under Tenants by Knights Service as you sup∣pose: sin••e their Estates were never called Antiqua Dominica, and therefore I think after all, you cannot shew me any legal Precedent that our Kings claimed a Right under colour of their Prerogative of Taxing the whole Nation de Alto & ••••sso, at their pleasure.

M.

I shall not now dispute it longer with you whether the Kings of Eng∣land had not anciently a power of Taxing the Lands held of them, without

the consent of their Great Council; but thus much I think I may safely aver that when this Great Charter was made the Tenants in Capite as the Com∣mon Council of the Kingdom gave Taxes and made Laws not only for them∣selves but their Mesne Tenants, and the whole Nation also. Nor was this at all unreasonable, that those who thus held Estates by Mesne Tenure under the Tenants in Capite, should be bound by the Acts of those of whom they held them;* 1.104 since we see in Scotland that at this day none sit there, either as Commissioners of Shires, or Burgesses for the Royal Buroughs, but such as hold in Ca∣pite of the King; for anciently before the Law for excusing the smaller Ba∣rons and free Tenants in Capite, and sending Commissioners of Shires in their stead, was introduced by a Statu••e made in the Seventh Parliament of K. Iam. 1. A. Dom. 1420, it consisted all of Tenants in Capite, viz. of the Bishops, Abbots, Priors, Earls, Barons; & Libere Tenentibus qui de R••ge t••nent in Capite; as appears by the very words in the Latine Titles to divers of those Statutes, as you may find them in Slenes Collection of Scotch Laws. Now if this Law did anciently, and does still prevail in Scotland, that the Tenants in Capite should be the sole Representatives of that whole Kingdom; I cannot see any Reason why it might not have been so anciently in Engl••nd also, especially since I can give you so good Reasons to back this opinion.

M.

I will answer your Argument from Scotland by and by; but in the mean time give me leave to tell you why I think it could never have been the custom in England; and that for two Reasons, first because it was against Reason; and 2ly, because it was against the known Law of the Kingdom▪ that it was against Reason, is apparent; since what reason was there that if a Man in those times purchased an Estate for a valuable consideration of a Lord, or any other Tenant in Capite (as certainly thousands did) to be held either by Knights Service, or in Socage that such a Tenant should lye at the Mercy of his Lord, to dispose of his Estate in Taxes, and make Laws for him at his pleasure; however exorbitant those Taxes were, or inconvenient those Laws might prove, the Lord being no Representative of his own choice▪ or appointment.

In the next place, that this was contrary to the received Law and Custom of the Kingdom in those times, I can prove by two very sufficient Authori∣ties, the one of the Earl of Chester, the other of the Bishop of Durham. Now it is certain that both this Earl and Bishop hel•• their County Palatines in Ca∣pite immediately of the King, nor had those Counties any Representatives in Parliament, till long after that they had Knights of Shires and Burgesses, granted them by particular Statutes made for that purpose; now according to your Hypothesis, all the Freeholders and Inhabitants of those County-Palatines should have been bound by all Acts of Parliament, and Taxed with the rest of the Kingdom as often as there were Laws made, and Taxes given when their Bishop or Earl was present, which was not so; for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service, or otherwise, as also of all the

Abbeys, and the City of Chester it self, and all other great Towns in that County, his Vote in Parliament would have obliged all of them; and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws, and Taxed themselves as a Separate Body from the rest of the Kingdom, as may appear from these following Records which Mr. A. hath given us; the first of which is a Writ of K. Edw. I.* 1.105 directed, Archiepiscopis, Epis∣copis, Abbatibus, Priori••us, Baronibus, Militibus & omnibus ••liis Fidelibus suis in Comitat. C••striae; reciting that where∣as the Prelates, Counts, Barons, & alii de Regno, had gi∣ven him a 15th. of their Moveables. He desires that they also would of their Benevolence and Courtesie (in Latin Curialitate) grant him the like Subsidy, which Note could not be done out of a Common Council.

So likewise in another Writ of the 20th. of this King, reciting that whereas the Probi Homines,* 1.106 & Communitas Ce∣striae sicut caeteri de Regno nostro 15 mam partem omnium mobi∣lium suorum nobis concesserunt gratiose: Now supposing (as the Doctor always does) that these Probi Homines were the Earls Tenants in Capite, what can this word Communitas here signifie but another sort of men distinct from them, viz. the Communalty or Commons of that County: And which is also remarkable, this County was now fallen to the Crown for want of Heirs male of the last Earl; and so according to the Doctors notion, the King being their sole Representative needed not to have been beholding to them for these Subsidies; since, tho not as King, yet as Earl of Chester, he might have Taxed them himself, which yet he thought not fit to do, because he knew it was contrary to the Rights and Priviledges of that County, which had ever since the grant of it to Hugh Lupus by Will. I. always been Taxed by themselves.

Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth, which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County,* 1.107 Baronet:

Wherein the Abbots, Priors, and Clergy, Barons, Knights, Esquires, and Commonalty set forth, that they with the consent of the Earl did make, and admit Laws within the same, &c. and that no Inheritors, or Possessors within the said County were chargeable or lyable, or were bounden, charged or hurt of their Bodies, Liberties, Franchises, Lands, Goods, or Possessions, unless the said County had agreed unto it.

Now what can here be meant by County but the Common Council, or Parliament thereof, since otherwise they could make no Laws, nor do any other publick Act?

The like I may say for the County Palatine of Durham, which from the Grant thereof by William Rufus to the then Bishop, had always been Taxed by themselves,* 1.108 and not by the Bishop in Parliament, and that as low as the Reign of Edw. 3. as appears by this Record of the 14th. of that King; con∣taining

a Letter or Commission to R. Bishop of Durham; reciting, that whereas the Prelates, Earls, Barons and the Commons of Counties, had given him a 9th. of their Goods there mentioned, that therefore the Bishops should convene, the Magnates & Communitatem Libertatis vestrae (to wit, of his County Palatine) ad certum diem, & locum, with all conveni∣ent speed, and that done to perswade and excite the said Magnates & Com∣munitas to grant the King the like, or a larger Subsidy, or Aid towards the maintainance of his Wars, which had been altogether in vain, if the Bishop, or the King could in those days have Taxed this County at their Pleasure.

Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents, much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service, or in Socage without their consents, which last had a much less dependance upon them.

M.

I must confess I never considered these Precedents of the County Pala∣tine of Chester and Durham; and therefore can say nothing to them at present, since it is matter of fact, but as to Reason and Law; I think it is consonant to both,* 1.109 that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords, of whom all the Lands of England were formerly held by Knights Service: And tho in Process of time many of these Estates and Lands became free Tenements, or were holden in Socage, that is, were Free holders; yet the Lords retained Homage (which in the times we now write of, was no idle insignificant word) and by that a Domi∣nion over the Estate▪ whereby upon Disobedience, Treachery, or Injury done to the Lords, &c. the Lands were Forfeited to them, and although the Lands, nor the Tenants of them (which were termed Free-holders) were sub∣ject to any base Services, or Servile works, yet the Lords had a great Power over these Tenants, by reason of their doing Homage to them (which tho now antiquated) yet eo nomine their Lands were many ways liable to Forfei∣ture, and Taxes too.

So that upon all thes•• accounts, it was then as reasonable that the Tenants in Capite should in those days make Laws, and grant Taxes for all the rest of the Kingdom; as the Tenants in Capite in Scotland should do so to this very day, for all the Inhabitants of that Kingdom of never so great Estates, and to this Argument which is certain in matter of fact, you have yet an∣swered nothing, nor do I believe can.

F.

I cannot see notwithstanding what you have now said, that the Su∣perior Lords, by reason of Homage should have an absolute Power over their Tenants Estates: For tho in the Profession of Homage to the Lords, I grant the Tenant thereby promised to become the Lords Man; yet he never thereby meant to become his slave, and there were mutual Duties on both sides; so that if the Lord failed to protect his Tenant in his Estate, or un∣justly oppressed him, he might have refused (nay renounced) his Ho∣mage, till the Lord had done him right; nor can I see how a bare right of ha∣ving

the Forfeiture of the Estate in the Cases you have put which yet let me tell you, were never so strict in respect of Socage as Military Tenure as I could shew you, were it worth while; for if this right of Forfeiture alone▪ could give the Superiour Lord a Power over his Tenants Estate, to make Laws for him, and Tax him as he pleased, then by the same Rule, the King as Supream Lord over all his Tenants in Capite, should have had the like Power over them, of making what Laws for them, and imposing what Taxes he pleased upon them without their consents: and so there would have been no need of Common Councils or Parliaments at all, since upon your Hypo∣thesis, the Tenants in Capite were the only Persons that had any right to ap∣pear there. But if neither the Wardship, Marriage nor Relief of the Heir▪ could give the King such a Power over his Tenants in Capite, much less could they attain the like right over all their Mesne Tenants by Knights Service, for that would have given them a greater Power over their Tenants then the King himself had over them; therefore if those great Tyes of Wardship, Marriage and Relief of the Heir, could neither give the King, nor yet any Tenant in Capite power over the Estate, or Liberty of his Tenants by Knights Service, much less over their Tenants by Socage Tenure, who were not under this subjection; and farther, if a right of Forfeiture alone, in some Cases, could have given the Lords a Power of making Laws; and granting Taxes for his Tenants in Socage, then they should have kept that right by this Rule, since all Lords had a right of Forfeiture even upon their Tenants in Socage in some Cases, before the Statute of taking away Knights Service; and the Court of Wards, and Liveries in the second year of King Charles the Second, as I could prove, were it worth while.

As to Scotland, I shall not deny the matter of fact to be as you say, that it hath at this day no other Representatives in their Parliament, but the Tenants in Capite, yet whether it was so or not anciently. I very much doubt, since I find the very same words and Phrases made use of in the Titles of their old Statutes, as also in their Records to express the Constituent parts of the great Council of that Kingdom as were used in England, to express those of England at the same time: For proof of which,* 1.110 pray see the old Charters of King Mal∣colme III. and David I. as you may find them at the end of the 2d. Vol. in Mr. Dugdales Mon••st. Angli••. and you will see the former to have bin made by the Assent of the Comites & Barones Regni, Clero adquie cent que Populo, &c. and as I shall also shew you from Sir Iohn Skenes Collection of Scotish Laws, to be∣gin with the most ancient there Extant,* 1.111 (viz.) an Assize, or Statute made in the time of King William, Sir named the Lyon, who began his Reign Anno. Dom. 1105. in the Fifth of our Hen. I. to the observance whereof it is there ex∣pressed, that the Epi••copi, Abbates, Comites, Barones, Thani & tota Communitas Regni tenere firmiter juraverunt, so likewise

King Alexander II. who began to Reign Anno. 1214. which was the Sixteenth year of our King Iohn,* 1.112 and he made his Laws de confilio & assensu venerabilium Patrum Episcoporum Ab∣b••tum, Baronum ac proborum hominum suorum Scotiae, and who these were may also farther appear by the begining of certain Statutes made by the said King Alexander in the same Year, which begin thus: Statuit Rex per consilium, & assensum totius communitatis suae, &c.

I shall next produce the Title of a Parliament holden the 13th. of Rob. I. who began his Reign Anno. Dom. 1306. the 3d. of our Edward I.* 1.113 In Dei nomine, Amen. Rober••us Dei Gratia Rex Scotorum Anno Regni suo Decimo tertio die Dominica proxima, &c. habito solenni tractati••, cum Episcopis, Abbatibus, Priori∣bus, Comitibus, Baronibus, & aliis Magnatibus de Communitate totius Regni ibidem congregatis, and which Title concludes thus, de Communi consilio & ex∣pr••sso con••ensu omnium Prelatorum, & libere Tenentium predictorum ac totius Com∣munitatis predicte ordinavit, condidit, &c. Statuta infra Scripta, &c. So like∣wise in an ancient Manuscript, called, Scoto-Chronicon, formerly in the Pos∣session of the Right Learned and Honourable Arthur Earle of Anglesey and now in the Herald Office; you will find the Entail of the Crown of Scotland to have been made by this King Robert, Anno. Dom. 1315. in a general Council or Assembly of the whole Kingdom of Scotland, as well Clergy as Laity, which as this Author tells us (who liv∣ed within Sixty Years after) was held,* 1.114 Dominica proxima ante festum Apostolorum Congregati apud Aere in Ecclesia Paro∣chiali ejusdem Laici, Episcopi, Abbates, Priores, Archidiaconi, nec non Diaceni, & caeteri Ecclesiarum Praelati, Comites, Barones, Milites, & caeteri de Communi∣tate, Regni, Scotiae, tam Cleri quam Laici, &c. from which it is apparent: There was a great Council of the whole Kingdom (as in England) more com∣prehensive then that of Tenants in Capite alone.

And that our English Records also agree with these Scotch Statutes you may see by 2 Records which Mr. Pryn has given us in his History of Papal Vsurpations, out of the Rolls of the 17th. of Edw. I. it is a Letter to Eric, King of Norway,* 1.115 concerning the Marriage of his Son Edward with his Grand-daughter then Heiress of Scotland and Nor∣way, reciting that the Custodes (Scil. Regni Scotlae) Magna∣tes, Praelati ac tota Communitas predicti Regni Scotiae unanimi, & expresso consensu had agreed to the said Marriage: So likewise in another Let∣ter of this King Edwards about the same Marriage,* 1.116 he de∣clares that he had by his Procurators therein named, treated and agreed with the Custodibus, Episcopis, Abbatibus, Comitibus, Baronibus, & tota Communitate ejusdem Regni, and it presently follows, ac praedicti nobiles & tota Communitas Regni Scotiae praedicti. Now whom can this word Communitas signifie, put here distinct from the Earls, Barons and Nobles, but the Commons of that Kingdom.

So likewise in the 14th. year of King Robert I. there was a Letter sent from the Parliament of Scot∣land to the Pope,* 1.117 complaining against the violence of the King of England (which is to be seen in Manuscript and is also Printed by Dr. Burnet,* 1.118 in his History of the Re∣formation; and by which it plainly appears, that the Comites, Barones, Libere Tenentes, & tota Communitas Scotiae agreed to this Letter.

And that the Cities and Burrough Towns were at that time part of this Communitas appears by the League made betwen this King Robert and the King of France in the 28th. year of our Edw. I. which is to be seen in a Roll of this year,* 1.119 still Extant, in the Tower; which League was ratified and confirmed in their Parlia∣ment, by King Iohn de Bayliol, ac Praelatos, & nobiles Vniversitates, & Com∣munitates civitatum, & villarum praedicti Regni Scotiae, and I suppose you will not deny that in Scotland, the Cities and Burroughs from times be∣yond all Memory, sent their Proxyes and Representatives to the Parliament in Scotland, and that each Citizen and Burgess so sent, had as good a Vote in their Parliament, as the greatest Bishop or Earl of them all.

M.

I desire no better proofs then what your self have now brought to make out, that the Tenants in Capite are not only at this day, but have been from the very beginning of Parliaments in that Nation.

For I shall appeal to those very Statutes and Records you have now cited, which compared with divers subsequent Statutes of that Kingdom, will make the matter plain enough; that the Communitas and these probi homines mentioned in these Laws you have cited, were the Community of the Tenants in Capite only.

In the first place, therefore let me observe from that very Law of King Alexanders, the Title of which you have but now quoted, that these words per essenssum Communitatis cannot here signifie the Commons, since they alone could neither advise, nor give their consent to make Laws, and there∣fore they must needs refer to the whole Community or Assembly of Estates, consisting of Tenants in Capite only,* 1.120 as I shall prove by a Parliament of King Rob. III. who began to Reign Anno. Dom 1400. (in the 10th. year of our Richard II) the Title is thus. Parliamentum Domini nostri Roberti III. Scoto••um Regis, &c. vocatis & summonitis more solito Episcopis, Prioribus, Du••ibus, Com∣mitibus, Baronibus, Liberis Te••entibus & Burgensibus qui de Domino Rege tenent in Capite; and this is also confirmed from the Title to a Parliament held at Perth Anno. Dom. 1427. being the 23d. of King Iames I. Summ••nitis & vo••atis m••re solito Episcopis, Abbatibus, Prioribus, Comitibus, Baronibus & Liberi T••∣nentibus, qui de nobis tenent in Capite, & de quolibet Burgo certis Bu••genfibus, so that I think nothing can be plainer from these ancient Statutes then that the Scottish Parliaments did anciently consist of no other Members then the Bishops, Abbots and Priors, Dukes and Earls, Barons, Free-holders and Burgesses, which held of the King in Capite.

Having thus shewn the ancient Costitution of the Scotish Parliaments for your satisfaction, I shall farther shew when, and how it was altered.

In the Seventh Parliament of King Iames the First, held at Perth,* 1.121 A. Dom. 1420, there was a Law made (which I shall contract)

That the small Barons and Freeholders need not to come to Parliaments, and that for the future out of each Schirefdome there should be sent two or more wise men after the large∣ness of the Schirefdome the which shall be called Commissaries of the Shire, and that these should have full power finally to hear and determine all cau∣ses to be proposed in the Great Council or Parliament, and that the said Commissaries should have Costage of them of each Shire that ought to ap∣pear in Parliament or Council.

I have only given you an Abstract of this Statute because it is pretty long, and pen'd in old Scotish English, but you may consult it at your leisure.

And this is farther confirm'd by a subsequent Act of Par∣liament of King Iames the Sixth,* 1.122 holden at Edinburgh, Iuly the 29th. 1587, wherein after a repetition of the former Act of King Iames the First, and a Confirmation of the same, it follows thus:

And that all Freeholders of the King, under the degree of Prelates and Lords of Parliament be warned by Proclamation to be present at the choo∣sing of the said Commissioners; and none to have voit in their Election but sik as hes Fourtie Shillings Land in free tenandrie halden of the King, and hes their actual dwelling and residence within the same Schire, &c.

I need give you no more of this Act, but I think it is most clear from this as well as the former Act of Parliament, that the Commons in Scotland were only the Kings Tenants in Capite, and are so at this day, since none but they can either choose or be chosen Commissioners for the Shires,* 1.123 but as to the Buroughs who do each of them send but one Commissioner or Burgess (except the Ci∣ty of Edinburgh which sends two) all which are chosen by the Common Council of the Towns. Now there are in Scotland three sorts of these Burghs, that is to say, Royal Burghs, Burghs of Rega∣lity, and Burghs of Barony;* 1.124 but only the Royal Bur∣roughs, the Burgi Dominici Regis, or qui de Rege Tenent in Capite, send Commissioners to Parliament, and are in number Sixty.

To conclude, that I may apply what hath been said concerning the Consti∣tuent parts of the Scotish Parliament to ours anciently, it seems to me that from the great affinity there was between ours and theirs, 'tis certain, that our and their Communitas Regni, was the same, that is, they were the small Barons and Tenants in Capite.

F.

I cannot deny but that the Parliament of Scotland hath for above these two hundred years consisted of the Bishops, Abbots and Temporal Lords, to∣gether with the lesser Tenants in Capite, or their Representatives the Com∣missioners for Shires, and Burgesses of Cities and Towns till the Reformation that the Bishops and Abbots were quite taken away, tho the former were re∣stored

to their places in Parliament by a Statute made in the latter end of King Iames the First; yet I cannot allow that from the beginning of that Government, the Scotch Parliaments have consisted of no other Members than those, since the word Communitas coming as it does in these old Statutes and Records (I have now cited) immediately after the Praelati, Comites, Barones, & Milites, &c. must signifie a distinct order of men from the Tenants in Capite, called in the Statute of King Iames the First the small Barons, and since the Citizens and Burgesses though none of those Barons, were also comprehended under this Communitas (and whom you grant to make the third Estate,) why this word might not com∣prehend all the other great Freeholders, I can see no reason to the con∣trary.

And therefore I suppose that in the Reigns of K. David 2d. or Robert the 2d. or else the beginning of Robert the 3d. there was a great alteration in the constituent parts or Members of the Scottish Parliament; and about that time the chief Freeholders or Lords of Mannors who held of Bishops, Ab∣bots, and other Temporal Lords, as well as of the Tenants in Capite, or else of the King by petty Serjeantry, or Socage Tenure, as also many of the small Towns, or Baronies might either forbear coming at all, or else desire to be excused because of the great trouble and charge of attendance; (as you see the smaller Tenants in Capite afterwards did when Commissioners for Shires were appointed in their steads) and so might by degrees leave off coming or be excluded by some Law not now extant; and thus the Tenants in Capi∣te, might become the sole Representatives of the whole Nation in Parlia∣ment; and I am of this opinion because in many of the old Statutes before the time of Robert the 2d. we find the Communitas totius Regni coming immedi∣ately after the Earls and Barons (as in our own ancient Statutes and Records) but after those Reigns we find no more mention of this Communitas, but on∣ly of the Dukes, Earls, Barons, Liberi Tenentibus, & Burgensibus qui de Rege tenent in Capite, as in the Titles to those Statutes of K. Robert the 3d, and Iames the 5th. you have now cited.

And yet that Liber Tenens was not anciently taken for a Tenant in Capite only; pray see the 14th. Chap. of the Laws of K. Alexander the 2d. made Anno Dom. 1214. with your Doctors comment upon them; Statutum est quod nec Episcopi, nec Abbates, nec Comites, nec aliqui liberi Tenentes, tenebunt curias suas nisi Vicecomes Regis,* 1.125 vel servientes Vice∣comitis ibidem fuerant, upon which words the Doctor in his answer to Mr. P. hath this remark, viz. this again shews us, that the Free∣holders were Lords of Mannors at least. So that unless you will suppose that none but Tenants in Capite were Lords of Mannors, or held Courts, (as cer∣tainly very many of the Mesne Tenants did) this word Liber Tenens must ex∣tend to any other great Freeholder or Lord of a Mannor, of whatsoever Lord he held it; and as such might anciently have had a Vote in that Parliament, so that if I have (as I think sufficiently) proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite, I

I have the same reason to believe it was so in Scotland too; not only because these general words Communitas totius Regni, must needs be more comprehen∣sive than to express the Tenants in Capite only (who could never Represent all the great Freeholders in Scotland any more than they did in England) but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdom••, for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws▪ says thus, Intelligo tuas tuorum∣que Majorum leges, cum legibus Regni tui Angliae magna ex parte consentiunt, which is also acknowledged by the King himself in the Speech he made in Parlia∣ment concerning the Union of both Kingdoms.

To conclude, I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate, when he expressly grants that the Commons of Scotland were, and are at this day the Kings Tenents in Capite, and that the Kings Royal Burroughs were such as ever did, and do at this day in Scotland only send Burgesses to Parliament: Now why the Cities and Burroughs in England should not have always had the like Pri∣viledge as well as in Scotland, I wish you could give me any sufficient reason.

M.

Since you own that the Tenants Capite, or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years, I doubt not but they were so long before that time; since you confess you cannot shew any Law by which this ancient Custom came to be changed; though I grant that the Statutes before K. David and Robert the 2d, are said to be made by the Communitas totius Regni, yet you must not suppose that Constitution of the Kingdom altered, when the Clerks altered their phrases in penning their Statutes and Records, so that this Communitas was the Community of the Tenants in Capite only, and not of the Freeholders, or of the Citizens and Burgesses of the whole Kingdom; since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires; for then 'tis most likely they would have kept to this day, whereas we see that none but Tenants in Coplie have Votes at such Elections.

And as for Cities and Burroughs, I cannot find (nor do I believe you can shew me) any instance of a City or Burrough-Town in Scotland that ever sent Deputies to Parliament, but what held in Capite of the King. For though there are, at I said already, besides the Royal Burghs, two other sorts, viz. Burroughs of Regality, and Burroughs of Barony, who hold of the King, but not in Capite; or else of some Bishop or Temporal Lord; and though divers of these are considerable for Trade and Riches, yet none of them send any Burgesses to Parliament; so that though I confess there are three Estates in the Scotch Parliament, called in the Statutes of K. David and Robert the 2d, the Tre•• Communitates Regni, yet did these always consist of the Tenants in Capite only, who therefore sit together, and make but one Assembly.

Now that we may apply what hath been said to England, I desire you to take notice that the Doctor and we that are of his opinion, do not positively affirm that that the Commons of England were not at all represented before

49 Hen. 4. but that they were not represented in Parliament by Knights, Ci∣tizens and Burgesses of their own choice, but by the greater and lesser Tenants in Capite, the greatest part of which I grant were not Lords; and admit that I should grant you that some Cities and Burroughs sent Members to Parliament, before the 49th. of Henry the Third; yet were they only such as held in Capite, and no other, as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans; so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament, and constituted a third sort of men, which you may call the Commons, if you please, though I cannot find they were so called, till after the time of Edward the First; but supposing this to be so, it is very far from your Republican, levelling opinion, who do suppose that all the Freeholders of England, had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands, or other Estates, whereas by our Hypo∣thesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation, and to propose what new Laws were necessary for the publick good of the Commonweal, and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd; yet not∣withstanding there is a vast difference between your notion and mine con∣cerning the Rights which such Tenants in Capite might claim of coming to Parliament, since before King Iohn's Charter, (whereby I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom) the King might have only call'd some of the greatest and wisest of them, and such as he thought most fit to advise him in making Laws, and imposing Taxes upon the Nation. And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign, as I shall shew you from divers old Statutes by and by:* 1.126 And that our Kings did often take up∣on them to call whom they pleased, and omit whom they pleased of these Tenants in Capite, may appear by those who were called Pares Baronum, or alios Magnates, who are put after the Barons; and of these there are many instances of their being called to Parliament, and again omitted in several Kings Reigns after the Commons were a third Estate, as represented as at this day.

F.

I must beg your pardon, if I cannot come over to your opinion, notwith∣standing what you now have said; since I do not find your reason to come up to what you intend therein, for you only suppose, (but without any proof) that the words Populus and Communitas must signifie only Tenants in Capite, in the ancient Scotish Charters and Statutes. All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now, and therefore that the Constitution has been always the same as at this day. Now pray consider whether this will not press altogether as hard upon you in relation to England; for you cannot shew me any Law whereby the

Tenants in Capite were excluded here, and Knights of Shires introduced in their fleads; and therefore by the same Rule let the Scottish Parliaments have been of what they will, yet ours have been still the same they are now. But if you say that this contrary usage hath been introduced either by the Kings Prerogative, or by the silent consent of the People, or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments; which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it.

So that if those Arguments are of any weight they will serve for Eng∣land, as well as Scotland; but if they are not, it is in vain to make use of them at all. The like I may say as to Burroughs in Scotland, since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament, that did not hold of the King in Capite; as it is that divers Burroughs in England did Petition to be ex∣empted from sending Burgesses to Parliament, by reason of their inability to pay the Expences of their Burgesses; as I could shew you by divers Prece∣dents, (some of which are in Print) had I now time.

As for the rest of your Discourse I cannot imagin to what it tends; for if the Tenants in Capite had any place in, or right to come to Parliament, how came they to have it, but by reason of the great Freehold Estates they held of the King? and if so, I can see no reason why those that had as good or better Freehold Estates than they should be all excluded; Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite, should give him a right to a place in Parliament, and get that a Mesne Tenant, or Vavasour (as he was then called) who held ten Knights Fees of some Bishop or Abbot, who perhaps did not hold in Capite at all, should have no right of appearing there, nor of choosing any Representative for him; since not∣withstanding all you have now said the Doctor either con∣tradicts himself,* 1.127 or you, when he tells us expressly in his An∣swer to Mr. P.

That the Tenants in Capite, who were no Barons represented only themselves, and not the Commons; but how this will agree with what he says in his Introduction, that the Body of the Commons had no share in making Laws, &c. before 49th. of Henry the Third, unless they were represented by thd Tenants in Capite: and if so must then cer∣tainly represent those that he here calls the Body of the Commons of England Collectively taken.

But as for your notion of the Parliament's being the King's Court Baron; tho you have borrowed it of a Learned Scotch Lawyer Sir George Me••••ensy, yet let me tell you it was never true, for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service; or then the very Institution of Mannors in this Kingdom▪ which the Doctor tells us are of no higher an original than the Norman Conquest.

But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron, then certainly all the Tenants in Capite had a right to appear there, and to be not only Suito••s, but Judges of all differences arising among the Tenants in the Lords Court, where neither the Lord him∣self nor his Steward were Judges, and that of right and not by savour; whereas you suppose such a Court-Baron as was never heard of, where the Lord could admit or exclude whom of his Tenants he pleased, to which if they had a right ratione Tenurae, certainly he could never do. So that instead of a Court-Baron and a Common Council according to King Iohn's Charter, whereby all the Tenants in Capite were to be Summoned to this Council, or pretended Court Baron; you suppose the King still retained a Prerogative of calling or omitting whom he pleased, which instead of confirming the validity of the Charter, and that it was to be a Rule how such Councils should be called for the future; you make to signifie just nothing, and that no Com∣mon Council was ever called according to that Model. But pray shew me a Court-Baron, wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates, that did not hold of the mannour, though they were resident within it:

But indeed you are out in the whole matter, for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights (and as he translates Eidelibus) Feudatories, or Vassals of all England wherein he lets them know,* 1.128 that he had sent his Letters to every one of them, if it might have been done:

Now what reason had he to write thus, if these Gentlemen had no right to be consulted, or that the King might have called or left out whom of them he pleased.

But the Barons and Tenants in Capite, were in another mind, when in the 37th. of King Hen. III. as Mar. Paris tells us, they refused to Act or Proceed upon any thing, without all the rest of their Peers, divers of whom, it seems the King had for some reasons then omitted to Summon.

But as for your instance of the Barons Peers, or alios Magnates, which were somtimes Summoned, and sametimes omitted in the Reigns of our three Edwards: You do well to put in, that it was after the times that the Commons were a third Estate; for indeed, it was only after that the Te∣nants in Capite had left off making a distinct Council by themselve; which I suppose was about the end of Henry III. Reign, and then it is true, the King called several of these Tenants in Capite, (as also others that were not so) by Writ, to the House of Lords, as Pares Baronum, i. e. not as real Barons, but Barons-Peers, since a ba••e Summons by Writ did not as yet, (nor long after) vest a Peerage in their Heirs, so that upon the whole matter, I see no reason from any thing you have urged from the example of Scotland to make me change my opinion, that the Tenants in Capite were anciently the sole Representatives, either of this or that whole Nation in Parliament; for pray take Notice that I do not find the Tenants in Capite, so much as mentioned in the ancient Statutes of that Kingdom, or Charters of their Kings, as the Common Council or Parliament of Scotland before the Reign

of King Robert III. which was but late in Comparison of the antiquity of those Councils in that Kingdom.

M.

I could say more as to the Antiquity of the Tenants in Capite their coming to Parliament as the sole Reprensentatives of the Nation before the time you mention; but it grows late, and therefore I shall wave it at present, and so shall only proceed to remark that great part of the Errour of the Gentlemen of your Opinion, proceeds from this false ground, that you suppose that the Parliaments, both of England and Scotland were a perfect Representative Body of all the Free-houlders and Freemen of those Kingdoms, which is a meer Chymera; for in the first place, if we will consider, it never was, nor indeed is so at this day; since you your self must acknowledge, that all Copy-holders and Lease-holders under Forty Shilling a Year, all Freemen in Towns Corporate▪ where the Elections lies wholly in the Major, and Aldermen, or Common Council; and lastly all that will not pay Scot and Lot in divers Burrough Towns, are utterly excluded from giving their Votes in the choice of Parliament Men; and consequently from having any Representatives in Parliament, though sure as much Freemen as the rest of the Kingdom; and this either by general Statutes, or else by the particular Charters and Customs of those Cities, Towns and Burroughs; all which are lookt upon as good and lawful Representatives of those Cities and Burroughs; so that I am clearly of the Doctor's Opini∣on,* 1.129 that the Tenants in Capite as well those who were Barons as those that were not, only represented themselves, and not the Commons, as being (as you truly observe) never chosen by the People; and as no Man can believe that a great Lord or Bishop could Represent his Mesne Tenants, so neither could the smaller Tenants in Capite who were no Barons, be properly said to represent theirs; and yet, these might according to the Custom of Feudal Tenures, and the Power they then had over their Tenants Estates, very well make Laws for them, and Tax them at their pleasures, because the main interest and strength of the Kingdom, lay almost wholly in them; and these (as the Doctor very well observes) having the Power of this, or any other Nation de facto, always did make Laws for, and Tax the rest of the People.

But to say somewhat to the Authorities you have brought from the County Palatines of Chester and Durham; I know not what old Priviledges they might pretend to, of not being forced to give Voluntary Aids or Subsidies of their Moveable Goods without their consents; yet this much I think may be made out, that as for all Land Taxes, and the general Laws and Statutes of the Kingdom; they were as much bound by the one, and as much liable to pay to the other, as the rest of the Subjects of England or else how came they afterwards to be bound by our general Statutes at all, as certainly they were from all times since the Conquest; though Chester had no Representa∣tives in Parliament, till the Reign of Henry VIII. and Durham had none till our times.

F.

You Gentlemen who hold this general notion of Tenants in Capite are so intoxicated with it, that you do not care what absurdities or contra∣dictions

you fall into, provided you may maintain your dear opinion, as I shall shew you by and by: But first let me tell you your Reply to what I have now said, is very fallacious, and in some points mistaken as to the matter of Fact: For in the first place, I doubt not but our Common Councils or Parlia∣ment were in their first institution, the main Body or Representative of all the Freemen of the Nation; and though it may by long continuance of time to deviate from that Institution; yet, that it is to be attributed either to some prevailing Custom, or else positive Law to the contr••ry; for it is certain that in the Saxon times, all the Free holders of England had a right of coming to Parliament in Person; and hence it is, that Liber Tenens, Li∣ber Homo & Ingenuus were Synonimous, and of the same signification, as I have proved from Sir Henry Spelman's Comment, in his Glossary upon those words; and hence it is, that the Members of those Councils were so nume∣rous as they were in those times, and long after, till they became so vast and unmanageable, that they were fain by degrees to pitch upon this method, of sending Knights of Shires to represent them, which is certainly a very an∣cient Institution, since the Tenants in Ancient Demean, claimed to be ex∣empted from the Expences of Knights of the Shires by P••esc••iption, as I shall shew you more particularly by and by; and likewise since all Riches consisted in those days in Land, or else in Stock, or Trade, therefore the Cities and Burroughs, and Towns, by reason of their Riches, had always a share in the Legislative Power, as well as in giving of Taxes; and since all such Citizens and Burgesses, not being able to come in Person, as the Free-holders could, were represented either by their chief Magistrates, called their Aldermen, or else by Burgesses of their own chusing as at this day; so that all Freedom, or Ingenuity being in this, as in all other Common∣wealths, reckon per censum, by the Estates of the owners; our Common Councils were, and that truly, the Representatives, not only of the Estates, but Persons of all the Freemen of the Nation, for I am so far of the Doctor's Opinion, that the Cheorl Folk (as they were then termed) were little bet∣ter than the Scotch Vassals or French Peasants at this day▪ and so were not Reckoned among the Freemen; all Freedom consisting then in so much Free∣hold Lands, held in a Mans own right, or being Freemen of some City or Burrough Town; and this gives us a reason why Copy-holders and Te∣nants for years, have no Vote in Parliament at this day; since it is certain, (and all our Law Books allow it), that at the first all Copy-hold Estates were held by Villenage, and the owners of them at first the Villani, or Tillers of the Demefnes of the Lord of that Town, there being at first no Free-hold less then that of a whole Township, since a Mannour; and therefore all Copy-holders and Tenants for years, or at Will, though Freemen are not admitted to have Votes at this day, because (as I said before) Freedom anci∣ently consisted in the Inheritance or Free-hold Estate of Land, or in Riches, in Trade or Traffick; Leases for Life and Years, being not known, or at least not commonly in Use in those days; and hence it is, that when Estates of Free-hold came to be divided into small Parcels, all Free-holders till the Statutes of Henry IV. and VI. (which we have before cited) were as much

capable of giving their Votes at the Election of Knights of Shires, as the best and greatest Tenant in Capite in England, till it was reduced by those Statutes to 40 s. Freehold per Annum; these Freeholders and Burgesses of Towns being anciently looked upon in the Eye of the Law as the only Free∣men; and it was these Freeholders alone who owed Suit and Service to the County, Court, and were amerced if they did not appear.

This being premised, and sufficiently understood, will give us a very good account, why Copy-holder and Lease-holders for years do not give any Votes at Elections of Knights of Shires; and yet the Parliament may still continue the Representative of all the Freemen of the Nation, as the People of Rome and the Territories about it were of all the Romans, though there were a great many Liberti, and in Inqui lini, who sure were Freemen, and not Slaves, and yet had no Votes in theirs Comitiis Centuriatis, or general Assemblies of all the Roman Citizens.

But that the Liberi homines, & Libere Tenentes de Regno, must take in more than your Tenants in Capite the Doctor himself is at last for∣ced to confess in his Glossary (notwithstanding his maintain∣ing the contrary in the body of his Book) viz. that the Liberi Homines,* 1.130 & Libere Tenentes mentioned in Iohn's Magna Char∣ta, were not only the Tenants in Capite, but their Retinue and Tenants in Military Service also, and whom he there supposes to have been then the only men of Honour, Faith and Reputation in the Kingdom, and if so might certainly have been chosen Knights of Shires as well as any of the Tenants in Capite; though this is but Argumentum ad Hominem; for the truth is that the Mesne Tenants by Military Service were not the only men of Faith, and Honour in those times, since it is certain the Kings Tenants in Pe••yt Serjeantry, and of some Honour or Castle, or else his Tenants in Socage, besides those who held of other Mesne Lords; and the Tenants of those Abbots and Priors, who did not hold in Capite, and yet were very numerous, were men of as much Faith and Honour as those that did; since many of them possest as good if not better Estates than the Tenants in Capite themselves▪ so that you are certainly mistaken in matter of Fact when you say the whole force and strength of the Nation lay in their hands; for if you mean Legal force, I have already proved, that the Tenants in Capite had no Legal right to give away the Estates of their Mesne Tenants, or to make Laws for them without their consents, who were altogether as free as themselves, Servitiis suis debitis solum-modo exceptis, as Bracton tells us, much less for so great a Body of Men as I now mentioned, who never held of them at all, and consequent∣ly could not upon your own Hypothesis, be ever represented by them; but if you mean a Physical strength, or force, though this can give no Natural, much less Legal right for one Man to Lord it over another: yet even this was much farther from truth, since the Mesne Tenants of all sorts, as well by Military Service as in Socage, together with those above mentioned: who never held of the Tenants in Capite at all, made six times a greater Body of Men, both for numbers as well as Estates, then all the Tenants in Capite taken together.

But to conclude, neither is your remark upon my Authorities from Gheller and Durham at all to the purpose; for I have sufficiently proved, that those County Palatines, were not at first concluded within the general Laws and Taxes of the Kingdom; since they had their particular Councils for both within themselves, as the Supplication of the Estates of the County Palatine of Chester, sufficiently declares; and certainly Durham had the like Privi∣ledges, since I never heard that the Men in that County were more Slaves to their Bishop, then the Cheshire Men to their Earl; and tho I grant that about the confused Times of King Hen. VI. there was a great breach made on the an∣cient Liberties of these two Counties Palatines, and if the King and Parlia∣ment made Laws for, and Levyed Taxes upon them, though they had no Representatives therein, this proceeded partly from their being over-pow∣ered by the rest of the Nation, and partly by the ease they found in be∣ing excused from the Expences of Knights of Shires, and Burgesses, which all the rest of the Kingdom, was at that time liable to, and which came to a great deal of Money (Four shillings per diem, being in those days, more then Forty Shillings now,) and yet you see at last they were aware of their Errour, and at their request, got the Priviledge of having Representatives in Parliament of their own choosing, as well as the rest of the Kingdom; and if this had not been a certain right of English Subjects, how came the Welsh Counties, which were anciently no part of the Kingdom of England, to have been admitted to choose one Knight for each County, and Burgesses for each Burrough Town, as well in North Wales, as South Wales, though both these were Conquered Countries at the first, and incorporated to England by particular Statutes; and therefore we have no reason to deny the Truth of Bracton's and Fortescue's assertion, that no Laws are made nor Taxes imposed in England,* 1.131 sine consensu communi ••uius Regni; or as the latter truly adds in Parliamento; and certainly this word common Assent must take in all their Assents, who had Estates either in Land or other Riches at that time when this Law was Established.

But leaving this dispute about Scotland, and the County Palatines, pray make an end (for it grows late) and give me the rest of your Reasons, why the Commons could not be represented in Parliament before the 49th. of Hen. III. and 18th of Edw. I.

M.

I will proceed to do it, and for this end shall reduce my Arguments to these three Heads, the first is, some Writs found out and produced by the Doctor, whereby he proves that the Commons were not Summoned during the Reign of Hen. III. till the 49th. secondly the general silence of all Sta∣tutes in H••n. III. Reign; wherein is not one word mentioned of the Com∣mons, but rather to the contrary, thirdly the critical Time (viz. in the 49th. of Hen. III.) when the Commons were first called, during Monsfords Rebel∣lion, fourthly, their discontinuance from that time, till the 18th, of Edw. I. there being no mention made of them in all the rest of the Reign of Hen. III. nor yet of Ed. I. till the 18th. in which the Doctor shews you a Writ (not taken notice of before) by which the Commons were Summoned, a new to Parlia∣ment:

Lastly, from the uncertainty of the manner of the Writs of Summons, whether for one Knight or two Knights, and sometimes no Citizens and Bur∣gesses at all, which sufficiently prove the Novelty of the Institution, as al∣so of some Parliamentary Forms relating to the Commons, which shew that neither their number nor manner of Election was settled long after the Reign of Edw. I.

To begin therefore with the first Head. I know the Gentlemen of your opinion make a great Noise about the loss, or rather defect of the Writs of Summons, and Parliament Rolls of all the Kings, till the 23d. or 25th. of Edw. I. So that we cannot be so well assured what was done in Parliaments of those times, as we may be afterwards: Yet there are still some Writs of Summons Extant upon the Close Rolls before and in those times,* 1.132 by which the Bishops, Earls and Barons, were Sum∣moned to Parliaments or great Councils. And we have all the Close Rolls of King Iohn and Henry III. on the Dorse••. of which anciently, most of the Writs of Summons to the Commons in other King's Reigns, are entred (few on the Patent Rolls which we have likewise.) 'Tis therefore very strange, if the Commons were then repre∣sented by Knights, Citizens and Burgesses, and Summoned to Parliament as at this day, that there cannot be found any Summons to them upon these Rolls, as well as to the Lords.

But the Learned Doctor hath for our Satisfaction, found out three Writs of Summons to the Lords, one in King Iohn's Reign, and two other of Hen III. The first is in the Close Roll▪ 6th. of King Iohn directed to the Bishop of Salisbury,* 1.133 which is needless here to be repeated Verbatim, only pray take notice of the materi∣al words of this Writ, where after the Cause of the Summons particularly expres'd, it concludes thus, expedit habere vestrum Consilium & aliorum Mag∣natum Terrae nostrae quos ad diem ilium & Locum fecimus convo∣cari.* 1.134 The second is in the Close Roll of the 26th. Hen. III directed to W. Arch-bishop of York, wherein he is likewise Summoned ad tractandum, Nobiscum una cum caeteris Magnatibus nostris quos similiter fecimus convoca••i de arduis Negotiis nostris statum nostrum & totius Regni nostri specialiter tangentibus; with this note underneath eodem modo Scri∣bitur omnibus Episcopis, Abbatibus, Comitibus & Baronibus.

The third is of the 38th. of the same King directed to Boniface Arch-bishop of Canterbury,* 1.135 whereby he is Sum∣moned to be at Westminster within Fifteen days after Hillary next coming before the Queen, and Richard Earl of Cornwail about the Affairs of Gascony; and this very Council Mat. Paris Anno. Dom. 1254. calls a Parliament, to which all the Magnates or great Men of England came together▪ the Day of which Meeting he makes to have been the 6th. of the Calends of February, being St. Iulian's day, and which fell one within Fifteen days after St. Hillary's Day, which was that appointed for the Meeting of this Parliament by the aforesaid Writ of Summons, and

who were the Constituent parts of this Parliament may be be farther made out by a Letter of the Queen, and Earl Richard to the King then in Gascony,* 1.136 which is recited by Mat. Paris in his Addita∣ments in these words; Domino Regi Angliae, &c. Regina & Richardus Comes Cornubiae Salutem, Recipimus literas Vestras ad Natale Domini proximae praeteritum quod in Crastino Sancti Hillarii Convocaremus Archiepiscopos, Episcopos, Abbates, Priores, Comites & Regni Angliae ad ostendendum, &c. Whereby it appears who were then the Constituent parts of Members of our English Parliaments, viz. the Arch∣bishops, Bishops, &c. Earls and Barons of the Kingdom. So that there is no such Universal silence concerning the Constituent Parts of our Parliaments, as you and those of your Party, suppose from the loss of the Parliament Rolls of those times, most of which, though I confess are lost, yet there are enough left to satisfie any reasonable Person, that there were then no Commons in Parliament in the sense they are now taken.

F.

You cannot give me a better demonstration of the loss of the Parlia∣ment Rolls and Writs of Summons than what you now offer, for if we have all the Close Rolls of King Iohn and Henry III. on the Dorses. of which you tell me, the Writs of Summons use to be entered, then certainly those to the Lords were there entered also, and if so; how comes it to pass that in above Eighty Years time, in which there must be above Eighty Parliaments, you can shew me but three Writs of Summons, and those only to as many Bishops, and to no Temporal Lords at all: If so be these were Parliaments and not great Councils of the Bishops, Lords and Tenants in Capite only, as I rather believe they were, for you rely too much upon you Doctors credit, when you alledge that we have all the Close Rolls of King Iohn, and Henry III, which is a great mistake, for I have had a Friend who has given me a note of what Close Rolls are still Extant in those Reigns, and what are lost which you may here see.

To begin with King Iohn, pray observe that all the Close Rolls of the first Five years of his Reigns are gone, and so they are in the 9th. 10th. 11th. 12th. and 13th. for certainly, there were some in those, as well as in the succeeding years: In the next place till the 18th. there is but one Roll left of each year, but then there are three; and after that but one or two in a year to the very end; now pray tell me, how we can be assured that there was not more then one Roll in every precedent year, as well as in the 15th. the like I may say for the Reign of Hen. III. which though I grant are more entire then those of King Iohn; there being some left us of every year but the 23d. yet they are but a few; and for the greatest part but one in each year, never but two in any year in all this long Reign, unless it be the 39th. in which there are four, which is very strange, that in so busie a time, as most of this Kings Reign was; there should be no more Rolls left, and therefore it seems very probable, that at least half are lost, and in which might be many Summons, as well to the Commons, as to the Lords, and if they are not lost, pray tell me what is become of all the Writs of Summons to your lesser Tenants in Capite, who certainly often met

in this long Reign according to King Iohn's Charter, but if you will tell me they are lost, or omitted to be entred upon the Close Rolls, I may with like reason and certainty affirm the same of the Writs of Sum∣mons to the Knights, Citizens and Burgesses, for if the one may be lost, sure the other may be so too.

But what if after all, these Writs you have produced were not any Sum∣mons to a Common Council or Parliament at all, but only to a great Coun∣cil of the Tenants in Capite, which I have great reason to believe, not only because the Title to the last Writ is only Summonitio ad Concilium, and not Commune Concilium Regni, but also because Mr. Selden and Mr. Pryn, who certainly must have seen all these Writs as well as the Doctor, and were as able to Judge of them, never cite them for Summons to Parliament, and Mr. Pryn observes of several Writs, in which the like words of Summoning the Lords to give their advice, are likewise found, that they were only to such Councils, or Treatises which were frequently used as Low as the Reign of Richard II. but if these Writs had been Summons to Parliament, sure Mr. Selden and Mr. Pryn had no reason to bewail (as they so often do) the loss, of not only of Parliament Rolls, but of all Writs of Summons, both to Lords and Commons (except those of 49th. Hen. III.) till the 23d. of Edw. I. But pray go on if you please to make good the rest of the positions you have now laid down.

M.

I doubt not but in the next place to shew you (though 'tis true, most of our Parliament Rolls are lost) both from our ancient Historians and Statutes, that there were no Commons in any Parliament, during all the long Reign of King Hen. III. except in the 49th. of that King.

I shall begin with the first Act of Parliament we have of the time of Henry III. which was made in the 20th. of this King at Merton, where though it is said, to be provided and granted, as well by the Arch-bishops, Bishops, Earls, Ba∣rons, as others, yet the words & Aliis and others are to be understood of the Tenants in Capite, distinct from the Earls and Barons, as I have already proved.

F.

I shall answer your Authorities as you go, you may say you have proved it, but I know not when; and why may not I with as good a Face maintain, that these words & Aliis do here signifie the Commons, if the word Ba∣rons must take in all the great Lords and lesser Tenants in Capite, as sometimes you suppose it doth, when no other Lay-Members are mentioned; but I have already observed, that this Barones is a Cheveral word, and to be stretch'd, or contracted as best suits with your Hypothesis. So I think I may with greater reason, suppose the Earls and Barons to be all comprehended under the word Barones, and the Commons under Aliis, as I have already proved; and which is also most suitable to the last Clause of Magna Charta of King Henry III. But you forget that I have I think sufficiently made out, that the Com∣mons had their Representatives, both at the making and confirming of Mag∣na Charta in 2d. and 9th. of Henry III. and therefore whatever proofs you bring to the contrary, will come to late; though I shall patiently hear what you have to say, but if you have no more Authorities to produce from

Statutes and Records, which have not been already considered: Pray proceede to the 49th. of this Kings Reign, and give me some reasons why the Commons were called in that year, and never before nor after, till the 18th. of Edw. I. for they both seem to me very improbable suppositions.

M.

I shall observe your Commands, and shall give you as short an ac∣count as I can of this transaction: First, therefore I desire you to take no∣tice, that after Simon Mon••fort and the rest of the Barons of his Faction had taken King Hen. III.* 1.137 and Richard Earl of Cornwall the King's Brother, with many other of the Nobi∣lity Prisoners at the Battle of Lewes. He carried them about with Him, till they had taken in all the strong Forts and Castles of the Land, and when this was done, Mat. Paris tells us, that calling together at London, the Bishops, Earls and Barons of that Faction, which so seditiously held their King Prisoner, they began to set up a Committee for the Government of the Kingdom consisting of Twelve Lords, who were chosen out of the whole Community or Body of the Baronage, without whose advice and con∣sent, or at least of Three of them no affairs in the King's Houshould, or in the Kingdom should be transacted; and to these Ordinances, the King and his Son were forced to agree; and though the Record of this Agreement recites that this Ordinance▪* 1.138 was made at London, by the consent, good••liking and Command of the King, and also of the Prelates, Barons, and of the Commu∣nity there present, yet I am not yet convinc'd, that by the word Communitas in the Latin Record, is to be understood the Commons, but the Community of the whole Kingdom, since this Agreement is Signed only by some great Earls and Barons, and no Commoner witness to it, but the Mayor of London, whom your self will grant, was no Parliament Man.

After which, Simon Montfort, the better to settle himself in his Usurpt Power, and in those Lands and Castles which himself, and those of his Faction, had unjustly wrested from Prince Edward, who was now also a Pri∣soner, having delivered himself as a Hostage for the Performance of this forc'd Peace; they in the first place sent out Writs in the King's Name, unto di∣vers Bishops, Abbots and Priors, and to such of the Noblemen as were of their own Party▪ to appear at Westminster on the Octaves of St. Hillary next ensuing and the Doctor hath given us a Copy of the Writ of Summons to the Bishop of Durham,* 1.139 as it is found in the Close Rolls of the 49th. of this King, and at the end of it, it is thus recited, ••eodem mo••o Mandatum est Episcopo Carleol: As also to divers Bishops and Abbots, all of their own Party and Faction, there being above an Hun∣dred Abbots and Priors then Summoned (more than ever were I believe before or since) and then follows a short Writ to the Sheriffs of Counties, to Summon two Knights de Legalioribus & Discretoribus singulo∣rum Comitatuum•• though it doth not appear by the Writ, whether the She∣riffs of the Counties were to Elect, and send these Knights, the Sheriffs be∣ing

then of the Faction, and made by them, for 'tis there said only quod venire faciar••. There are also other Writs recited to have been directed to all the great Cities and Towns of England, as also to the Cinque Ports, to send two of the most Legal and Discreet of each of the said Cities, Burroughs, Towns and Cinque Ports to the said Parliament at Westminster, at the time aforesaid. So that without the History of this Ni••k of time, these Writs (which are said to be for the Delivery of the Prince out of Prison, and for the settling of tranquility and Peace in the Nation,) cannot be understood.

But Prince Edward's Release could not be agreed upon in this Parliament, whatever other Business might be dispatched: So that things still remained in this uncertain condition (the King being all this time a meer Shadow) until such time as Simon Montfort, and Gilbert de Clare Earl of Glocester falling out, the latter, at last took up Arms, and joyning with the Earles of Surry and Pembroke, to whom also came Prince Edward, after he had made his Escape from Hereford, they altogether raised considerable Forces against Monfort, who meeting them, and joyning Battle near Evesham, Monfort with one of his Sons, and many other Lords and Knights were Slain, and all his Party routed.

Now pray tell me if this is not a very clear account from the History of the matter of Fact, why the Commons were first called to Parliament by Monfort during his Rebellion; and I think I can also give you very good reasons (and Authorities to back them) why they were again discontinued all the rest of this Kings Reign, untill the 18th. of Edward. I.

F.

I shall tell you my opinion of your Narrative by and by, but in the mean time pray satisfie me in one or two Questions, pray Sir, what may be the reason, that we can find but twenty three Earls and Barons Summoned, of that great number there was then, and only to thirteen Bishops in this Parlia∣ment, and yet at the same time there should be summoned above an hun∣dred Abbots and Priors, and but five Deans of Cathedral Churches; pray why might not these numerous Barons be trusted as well as all the Abbots and Priors?

M.

As for his not Summoning all the the Earls, Barons and Tenants in Capite, but putting Knights of Shires and Burgesses in their rooms,* 1.140 there may be a very good reason given for it, viz. the danger that Simon Monford and his Privado's appre∣hended from the too great Concourse of the Nobility, and their great Reti∣nue••▪ and the Example of his own and the Barons Practices at Oxford in the Parliament of 42d. of Henry the Third might be the cause why they al∣tered the ancient Usage; and of their sending Writs out, commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights. Citizens and Burgesses respectively. But the Reason why there was so many Abbots and Priors Summoned was,* 1.141 be∣cause Simon Monfort thought himself sure of them; He was a great Zealot, and a Godly Man in those times, and a great Minion of these Religious men (as then called) as also of the Bishops and Clergy, and they were at least seemingly Great Favourites of his.

F.

I must confess there is some colour of Reason, why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand, but there is no certainty of this, for if he had been so sure of them, there was as much reason why he should have called them all likewise to the Parliament at London, which you say he Sum∣moned the year before, when with the Consents of the Bishops, Barons and others, he made the new Ordinances you mention; but you cannot find in any Historian, or Record, that he then Summoned so many of them, and it seems pretty strange, that all these Abbots and Priors. and Deans, not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple, if neither they nor their Predecessors had ever been Summoned before.

But the other reason you give why so many Earls and Barons should be omitted, is much more unlikely, for if the numerous Barons Factious Pra∣ctices at Oxford had before frustrated, Monfort's designs, there had been in∣deed some reason why he should have done, all he could to have hindered their coming again; whereas on the contrary the Earls and Barons at the Parliament at Oxford, though they came thither with Arms and great Re∣tinues, yet it was only to joyn with him, and to force the King to agree to the Oxford Provisions. But if the Commons were now Summon'd (as you suppose) to curb the extravagant Power of the Lords, yet it could not be his Interest, or indeed in his Power so to do, not the latter, because the Earls, Barons and Tenants in Capite, were too powerful and numerous a body to have suffered such an affront and breach on their Right, as this was. Nor could he and his two and twenty Companions have ever dared, to have displeased so great and powerful a body of men, as you must allow your great Barons and Tenants in Capite▪ both great and small then were, and who made such a powerful opposition for their Liberties in King Iohn's time, or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament, and made Laws for them, much less the Citizens and Burgesses, most of whom were certainly not Noble by Birth, nor yet held Lands in Capite; nor could it be for Mon∣fort's Interest so to do; for the greatest part of the Earls, and Barons were of his side already, and thus to ••••clude them, had been the only way to disoblige them, and make them leave him, and go over to the King's side: So that I must needs tell you upon the whole matter, granting Monfort to have been such a Knave and Hypocrite as you make him, yet certainly he was no Fool, but a great Politician and I leave it to your self, or any indif∣ferent person to judge whether it was possible for him to do so silly and un∣politick a thing as this. For granting all the Abbots and Priors to have been of his side (as you suppose) they could no way counterballance the great Power of those Earls and Barons, and numerous Tenants in Capite, that were all hereby excluded. So that let the Commons have been Summoned when you will, it was certainly before this 49••h. of Henry the Third, or not at all.

But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3d to have been Summon'd to this Parlia∣ment; I conceive it was not out of any jealousie or suspition in Simon Mon∣fort of those who were then his fast Friends but out of pure carelesness, or omission of the Clerks; who I suppose through hast, inadvertency, or multiplicity of business omitted to enter the names of all the rest of the Earls, Bishops and Barons, to whom Writs of Summons were likewise sent, and that I do not speak without Book, I appeal to the Record it self; where there is a blank space left unfill'd of about four Inches breadth which could be left for no other end than to add the names of all the rest of the Earls and Barons who were certainly Summoned to that Parliament as well as those whose names are there expressed.

M.

I shall not longer dispute this point, but I think you must grant that the Commons are never mentioned in any Record or Statute of this King; for after his Victory at Evesham he called a Parliament at Winchester, whereto we do not find any Commons Summoned, as before, but the King by the advice of his Magnates alone, Seised the Liberties of the City of London, and also they gave Him all the Lands of the late Rebels.

And then there was after this a Parliament Summoned at Kenelworth, in the 50th. of this King, where it was agreed by the common assent of the Bishops, Abbots, Priors, Earls, Barons, and all others, that six Persons who were all (except one) either Bishops or Barons, should chuse six others and the whole twelve were to judge concerning those who were disinherited for their late Rebellion, and their Determination or Award, is call'd Dictum de Ke∣nelworth, and was made to better the condition of the disinherited, and to turn the Forfeitures and Loss of their Estates into a Composition for them after the value of five years Purchase, to be paid at two or three short pay∣ments, yet we do not find that to this Parliament the Commons were at all Summoned, but to the contrary; for though it is true that the Statute gives us all their Names. Yet the Doctor further proves to you from Sir William Dugdale's Baronage, that there was not one of them, but what was either a Bishop or a great Baron of the Kingdom; whereas had there been any Commons in this Parliament, they would certainly have had Commissi∣oners of their own order as well as the Bishops and Lords.

F.

I shall give you a short answer to your Authorities from the Parlia∣ments of Winchester and Kenelworth; as for the former you must own that all the Rolls of it are lost;* 1.142 and that there is no more left of it on Record than that Writ or Commis∣sion which the Doctor has given us, which recites that by the unanimous con∣sent of all the Magnatum, or great Men (as the Doctor renders it) the King had the seisin and possession of all the Rebels Estates given to him; which is no argument to prove that no Commons were there; since I have so often made out that under this word•• Magnatum not only the Knights of Shires, but Citizens and Burgesses were often comprehended: 'Tis true there are no Writs extant to prove the Commons were now Summoned; neither is there any reason to believe the contrary; since if it were a cunning inventi∣on

of Montfort to Summon the Knights, Citizens and Burgesses to abate the power of the Tenants in Capite, it was sure as good policy for this King to continue so politick an Institution, which would for the future serve for so good a ballance; not only against his Tenants in Capite, but his great Lords. also, as for the Parliament at Kenelworth, I shall admit all the matter of Fact to be true as you have related it from Mat. Westminster, who says, that the Twelve Commissioners appointed to draw up the Statute of Kenelworth, were chosen de Potentioribus Procerum, & Prudentioribus Praelatorum, and also that the French Record (cited by the Doctor) together with Sir William Dugdale's Comment upon it make it out plain enough that the Lay▪Com∣missioners who were chosen by all the parties there named, to make this Statute, were all great Earls and Barons, though in the Record it self only stil'd Knights.

Well, what follows from all this? that the Commons could have no hand in this choice, because the tous Autres, or omnes Alii mentioned in this, and other Records must needs always signifie the smaller sort of Tenants in Ca∣pite; and I say it signifies the Commons as now taken; whether you have made good your Interpretation by any cogent proofs I must leave to your own ingenuity; for to tell you the truth, I think your Doctor has led you astray in this point; and till you can make it out better than you have done, I must beg your pardon if I keep my old opinion; and if your Ar∣gument be good, that no Commoners were there, because none of them were chosen Commissioners, then by the same Argument none of the small Tenants in Capite were there neither; because none under the degree of an Earl or Baron were Elected. As for the want of Writs of Summons to these Parliaments if that were to be the rule, that makes as much against the rest of the Tenants in Capite, who were no Barons, nay the ve∣ry Bishops and Abbots, and Lords, since there is no Writs of Summons found for their appearance at either of these Parliaments; and so the King might call whom he pleased.

M.

In the first place it does not follow that because Montfort had Summon∣ed some of the Tenants in Capite to appear for all the rest; and that he also called some Citizens and Burgesses to this Parliament of the 49th. yet the King might have very good reasons (though we cannot now positively tell what they were,) nor to follow this new Invention of Monforts, however it might then serve the turn; for perhaps the King did not like it because introduced by a Rebel. And he had also by his Victory at Evesham so quell∣ed the power of the great Lords and Tenants in Capite, that I believe he was afterwards able to call or omit whom of them he pleased, according to the Testimony of Mr. Cambden's Nameless Manuscript Author, cited in his Brittania; that after the horrid troubles and confusions of the Barons Wars, only those Earls and Barons, Quibus Rex dignatus est brevia Summonitionis di∣rigere venirent ad Parliamentum suum, & non Alii.

And that this was true in matter of Fact, I shall prove from the next Statute of Hen. 3. which is extant, viz. that of Ma••l••bridge,* 1.143 made in the 52d. year of this King to which there were no

more Summoned than some of the more Discr••••t of the Greater and Less••r Barons, as appears by these words in the Preface to that Statute, Convocatis Discretioribus ejusdem Regni tam Majoribus quam Minoribus, Brovisum est; & Statutum ac concordatum, &c. which seems to have been done by the King's particular direction since by the general Writ of Summons provided by King Iohn's Charter, the Sheriff of each County was to Summon all the Minor Barons, and Tenants in Capite, which could not be, if only the more Dis∣creet were then Summoned, nor is there in this Preamble, the least Hint or Intimation of any Writs directed to Counties, Cities or Burghs for the Choice of Members.

I desire you in the next place to take notice that Britton (who lived about that time) supposes this Statute to have been made,* 1.144 Per la Purveance de Robert Walerand & per Com∣mune Assent des Graunts Seigneurs du Realme. By the Procurement or Forecast of Robert Walerand, and by common assent of the Great Lords of the Realm, without any mention of the Commons. I have a great many more such Sta∣tutes to instance in which are said by M. Paris to have been made in several Parliaments of this King, by the Community, or Common Vniversity or Baro∣nage of the whole Kingdom, but I pass them by because we have sufficiently debated most of them already.

F.

If only some of your Great Lords and Tenants in Capite could thus meet, and make Laws to bind all the rest, and they so tamely put up this strange Infringement of their Priviledges as you suppose, it seems their Power was much abated since the 37th. year of this King, when (as I said) Mat. Paris tells us, that the Barons would do nothing without the rest of their Peers, whom it seems the King had then omitted to Summon; and there∣fore I must needs tell you, that I am not of your Doctors opinion, nor yet of Cambden's nameless Author, that this King after his victory over Montfort and his Adherents could by his Prerogative call, or omit what Peers he pleased, since it is contrary to the Declaration of all the Bishops,* 1.145 Abbots, and Priors in Full Parliament, 2 Rich. 2. wherein they claimed,

That holding per Baronium▪ it did belong to them, de Iure & consuetudine R••gni Angliae (that is, by Rights of Prescription) to be present in all Parlia∣ments as Peers of the Realm, and to treat, consult and or∣dain concerning the Affairs of the Kingdom;

and if the Spiritual Lords claimed this Priviledge, sure the Temporal Barons might with the like right have made the like claim, and I am sure it is highly derogato∣ry to the Rights of the Peerage of England to maintain that the King ei∣ther hath, or ever had the power of calling and leaving out what Lords he plea∣sed, and so to make pack'd Parliaments to serve a turn when ever he pleases.

But to come to the main strength of your Argument, that because the more Discreet men of the Kingdom of the Greater as well of the less••r are only mentioned in this Statute; that therefore there were only called to it such Lords and Tenants in Capite, as the King pleased to Summon, and that all the rest were left out; which is a very idle Supposition; for at this rate,

may as well say, that there were no Temporal Barons there at all, and that by the Greater discreet m••n are to be understood some of the Bishops and Judges; who tho no Peers▪ yet were then the most Learned in the Laws and Customs of the Kingdom of any persons at that time, and consequently the most wise and discreet to draw up Laws, and by the lesser sort of discreet men, shall be understood such Great Clerks and Lawyers, tho not Tenants in Capite; as the King pleased to chuse, as being likewise most able to advise him. But if you tell me that this Interpretation is forced; I may as well say the same of yours, and that with greater reason. Yet I shall prove that this Parliament was Summoned in no other manner, and consisted of no other persons than those that used to appear in all other preceding Great Councils or Parliaments. In the first place therefore I must put you in mind of what I have already said, that there is no conclusion to be drawn from the bare penning of the different Forms of ancient Statutes, who were Summoned to the making of them, nor by what power they were Enacted; some of them it is true, being drawn in the form of the Kings Charters, or Writs; without any mention of the Assent either of the Lords or Commons, and others are said to be Enacted by the whole Realm without any mention of the King at all; and I have given you a List of divers old Statutes from the Reign of King Henry III. to the time of King Edward III. in which there is no men∣tion at all made, either of the King, or any other of the three Estates; and yet no Man I think but will grant that these Statutes were all made, and agreed to by them according to the usual Forms, tho it be not particulaly ex∣pressed, and therefore to give a better account of this Law, it is fit we con∣sider, that these words convocatis Discretioribus Regni, are no more restri∣ctive to some particular Persons, then if it had been in the Superlative De∣gree, and instead of Discretioribus, it had bin Discretissimis, or Sapientissimis Regni, which no Man would interpret to mean only a few of those whom the King should judge the wisest and most discret Men of the whole Kingdom; and therefore we must not mind the Grammatical, but Legal sence of these words, and then it amounts to no more than this, that by the Greater discreet Men, were meant the Lords Spiritual and Temporal, as under the lesser Discreet Men were included the Commons.

But that these Minores Descreti cannot be understood of the Tenants in Capite only, appears by the conclusion of the Preface to this Statute of Marle-bridge in these words: Provisiones, Ordinationes, & Statuta subscripta ••b omnibus Regni ipsius incalis, tam majoribus, quam Minoribus, firmiter & in∣violabiliter temporibus perpetuis Sta••neri•• observari; so that if by the Majores I••colae, who were to observe these Statutes, the Lords Spiritual and Tempo∣ral are meant, then by the Minores Incolae Regni must be understood by the same reason the whole Commons of England; and so likewise for Parity of reason by the Minores Discreti, mentioned before in the Preface, must be also meant the Representatives of the Commons in Parliament.

And that this alone can be the genuine sense of these Words, may appear by comparing this Statute with another made at Gloucester the 6th. of Edward I. where in the Preface it is recited in these words, purvenant

m••sm le Roy, pur Amendement de son Royalme, & pur pluis plenier exhibicion de droit sicome le profit d'office demande, appelles les pluis Discretes de son Royalme auxibien des Greindres, come des meindres, establie est, & acordan'ment ordeine. So that if the Commons were there called to this Parliament, and if by the Greindres Discretes were understood the Lords, then by the like rea∣son under Meindres Discretes must be meant the Commons as at this day.

But that this Statute was made by the Common Council of the Kingdom, and not by a Conventicle of a few of the Lords and Tenants in Capite, Sum∣moned ad Libitum Regis, appears by all the original Writs, founded upon seve∣ral branches of this Statute, wh••ch are to be seen in the Re∣gister; reciting that this Statute was made de Communi Con∣cilio Regni.* 1.146 Now the word Commune signifies no more than General; and how could this be call'd a General Council, which only consisted of a few of the wiser sort of Bishops, Lords and Tenants in Capite?

As for what you and the Doctor cite out of Cambden's Nameless Author of King Henry's, sending Writs of Summons, and culling out a few of the Earls and Barons out of a great multitude that were Seditious after the War with the Barons was ended; if you will have it extend to those who never forfeited by reason of Montfort's Rebellion. I need not say much to it,* 1.147 since Mr. Selden in his Titles of Honour hath suf∣ficiently baffled that Authors authority, for if it was never true as to Earls, it was not like to be truer in respect of the greater Barons. But as for your lesser Barons or Tenants in Capite; I know not but he might be much more in the right in respect of them.

What you say as to Robert Walrand is not much material, for tho he was never so great a Baron or Lawyer, yet he could draw up this Law, but as be∣ing one of the Kings Council, who in those days drew up, and prepared all Bills that were offered in Parliament. And thus Britton might well say, that this was made by the Common Assent of the Grand Seigneurs (this Act being so highly for their advantage) and yet the Commons might be also there as well as the Great Lords; for otherwise if Britton must be literally under∣stood, what becomes of your Minores Discreti mentioned in this Statute to have given their consents as well as the Majores, whereas this Author men∣tions none at whose request it was made, but the Great Lords only: But that by these Minores Incolae Regni, mentioned at the end of this Statute, were meant the Knights, Citizens and Burgesses; Pray see a Writ of Summons the 24th. of Edward I. with the Doctors note upon it in his answer to Mr. P. the Writ is directed to the Arch-bishop of Canterbury,* 1.148 and concludes thus,* 1.149 that he should warn the Procuratores Cleri there menti∣oned to appear with him, ad tractandum, ordinandum & faci∣endum no••iscum, & cum ceteris Praelatis, & Pro••eribus, & aliit ••nc••lis Regni nostri in the Margin over-against these last words, the Doctor gives us this Note, the Incolae Regni were the Knights, Citizens and Bur∣gesses mentioned in the former Writ, but not here particularly enumerated.

Now, though it is true, that this Writ is after the time that the Doctor will acknowledge the Commons to have been constantly Summoned to Parliament, yet if these words could mean the Commons in this Writ. why they should not signifie the same in this Statute, I can see no reason, but the Doctors strong prejudices to the contrary. But if you have no more Autho∣rities to alledg from the Reign of Henry the Third, pray go on, and shew me the rest of your Arguments; why you suppose the Commons were never called in above half the Reign of Edward the First, till the 18th. And I de∣sire this the more, because as I have already proved from the Statute of West. 1. 3 Ed. 1. the words & tout le Communalty de la Terre, coming immediately after the Counts, Barons; and those other words foregoing, must needs signifie the whole Commonalty of the Land;* 1.150 and so the Doctor himself has rendered it in his Answer to Mr. P.

M.

But first pray observe what the Doctor there tells you, that by the word Commonalty he means not the Commons in the sense they are now taken, but the Community of the Tenants in Capite only; and for this,* 1.151 pray consult the Writ of Summons to the Archbishop of Canterbury to come to this Parliament, (which I confess is the only Writ of this kind that is left upon the Rolls from the 49th. of Henry the Third to the 23d. of this King) in which you will find the Archbishop Summoned ad tractandum, ordinandum una cum Prelatis, & magnatibus Regni; that is, as the Doctor ex∣plains it, with the Prelates and Great Men of the Kingdom, which Great Men very frequently comprehended as well the Barons Majores as Minores,* 1.152 the Earls, Barons, and greater Tenants in Capite, and the less which then were the Community of the King∣dom; so that your Interpretation of the words des Greindres, & des Mendres in the Statute of Gloucester (by which you would interpret the like words in the Statute of Marlbridge) for the Commons, as now understood, will sig∣nifie nothing, as being before the time we allow the Commons to have been Summoned to Parliament in this Kings Reign.

F.

It were a very easie thing for any man of a confident undertaking tem∣per to frame what Interpretations he pleases from the general or equivocal of Histories or Records, if he could as easily find Authorities to support it; but I see nothing like a proof for it, but the Doctors bare Assertion: Since I have already sufficiently proved, that the words Communalty and Communitas coming in our Statutes and Records immediately the Counts and Barons after do always signifie the Commons as now understood, and why they should not signifie so here, I can see no reason; for as to the words in the Writ to the Arch-bishop of Canterbury, they prove nothing at all, who were the Consti∣tuent parts of that Parliament; for if the word Magnates must need signifie the greater and lesser Tenants in Capite only, pray why do they not signifie so in the Writ of Summons to Parliament, of the 49th. of Henry III.* 1.153 to the Bishop of Durham (which the Doctor has Printed) where there is no mention made of his Treating or advising with any other Persons then the other Prelates,

& Magnatibus nostris, yet the Doctor within two Leaves af∣ter gives us the Writs of Summons for the Knights,* 1.154 Citizens and Burgesses to this Parliament. But it seems in his first Edition of his Book against Mr. P. he had not made those rare discoveries he did afterwards; where he pretends not to carry this Opi∣nion beyond the 49th of Hen. III. Therefore pray go on to shew this new Light, by which the Doctor discovered, that the Commons were never Sum∣moned to Parliament all the Reign of Edward I. till the 18th.

M.

In the first place, you cannot shew us any mention of the words Com∣munalty, or Communitas in any of the Parliaments of this Kings Reign; not in the Statute de Bigamis made in the 4th. of this King; the Preamble thereof runs to this effect:* 1.155 That these under∣written Constitutions were recited before some of the Bi∣shops and others of the Kings Council, and afterwards heard and published before the King and his Council, here is no express mention, who were the Constituent Members of Parliament at this time, or of this Par∣liament in particular, more then that it is said in the Close of this Statute, that the aforesaid Constitutions were Published at Westminster in the Parliament after the Feast of St. Michael.

So likewise by the Statute of Westminster the 2d. made in the 13th. of Edw. I. it appears that the Prelates, Earls, Barons and the Kings Council, were the Constituent parts of the Parliament at Gloucester you but now mention∣ed; for it recites that the King in the 6th. year of his Reign, Convecatis Pre∣latis, Comitibus, Baronibus, & Concilio suo apud Glocestre, &c. and thus; the Statute of Mortmain made by this King in the 7th. of his Reign, is recited to have been made de Consilio Pralatorum, Comitum, Baronum & aliorum fidelium Regni nostri de Concilio nost••o existentium, &c. the Statute of Acton Burnel, was made in the 11th. of this King, by himself and his whole Council, Le Roy per Luy, & per tout son Council ad ordein & establie; though this was done in Parliament, as appears by the Statute of Merchants of the 13th. of the same King, which recites, that the King had made by himself and his Council at his Parliament at Acton Burnel these Establishments. I have been the more particular in the recital of these Statutes, not only because here is no mention made of any Commons in these Parliaments, but also be∣cause it farther confutes your position in your 5th. Dialogue, that the King had not then the sole Legislative Power.

F.

You have said almost nothing now (I except that of the Kings being the sole Legislative Power,) which I have not already freely acknowledged, viz. that the words Communitas, and Communalty are not above twice men∣tioned in the enacting part of any Statute in this Kings Reign; and the Knights, Citizens and Burgesses not once mentioned, till the 34th. of this King, nor any mention again of the Commonalty till the Statute of Lincoln, made in the 12th. of Edward II. and yet it appears by the Writs of Sum∣mons and Expences, beginning at the 28th. of Edward I. that the Commons had been Summoned to Parliaments, ever since that time; and that they were so, also before that time; I have already proved both by Acts of Par∣liament

and Records, but by yours, and your Doctors method of arguing; if the Writs of Summons to the Commons of the 49th. of Henry III. had happened to have been torn off, and lost, as they easily might have been, since it is only affixt to the Roll by a loose Schedule, and also that all the Writs of Summons to the Commons had been lost, from the 23d. of Edward I. to the 34th. then there is no denying the Commons to have been there, because par∣ticularly named; and if these Writs had also happened afterwards to have been lost till the 12th. of Edward. II. when they are expresly named in the Sta∣tute of Lincoln which I now mentioned; then the Commons should have been again excluded by the same Argument, as they are after the 49th. of Henry III. because no Writs of Summons are found for them, nor any men∣tion made of them in any Statute, first for above 30 Years, and after that for above 13 Years together, since you will not allow the words Communitas and Communalty to signifie the Commons, till you please to allow them in that sense.

This may serve as a general answer to all you have said▪ concerning the omission of the Commons in all Statutes till the 18th. of this King, and may serve not only for them, but against the Bishops and Tenants in Capite. being all present at divers Parliaments, where the Acts are recited to have been made by the common Assent or Accord, without at all specifying whose Assent, and sometimes without naming the King at all.

This being premised, it will be easie to return you a short and particular answer to the Statutes you have cited. As for that de Bigamis, you confess that the Statute only mentions its being recited before the Kings Council, and Publish'd in Parliament without relating what were the constituent parts of it; Ergo, no Commons were there, and I may with as good a Fa••e say, no Bishops, Abbots, nor your smaller Tenants in Capite were there, because not particularly named: As for the rest of the Statutes you have cited of Gloucester, Mortmain and Act••n Burnel; 'tis true, the Prelates, Earls and Barons are the only particularly mentioned, because they then bore the grea∣test figure in the Government, your lesser Tenants in Capite being quite lest out; for that they could not then be comprehended under Baronum, I have sufficiently made out. But to conclude, give me any sufficient reason, why the Commons might not be at these Parliaments as well as they were af∣ter the 18th. tho most commonly no otherwise mentioned then they were be∣fore that time, if you say the Writs of Summons make it out they were there: You confess l••ke your prejudice, since the two Writs of Summons before that time would, if they had not been lost have made out the same thing.

As for what you say for the Kings being the sole Legislative Power in those times. I have long since proved, that no King could ever legally make laws without the consent of the Common Council or Parliament, and after that, all that you can say for the Kings making Laws alone with the advice of his Council signifies nothing; For if the words are litterally to be under∣stood, then this Council of the King, whether you will have it to consist of the whole Parliament, as the Statute of Mortmain seems to intimate, or else of his particular Council in Parliament, as in the Statute of Acton Burnel,

where those constitutions are said to be ordained by the King and his Council, if by ordain'd, you mean only drawn up, and prepared for the Parliaments Assent; it is no more then what I shall easily grant to have been often used in those times, but if you will have ordained to signifie enacted, then pray tell me how you will avoid the Kings Council, having a Joynt Hand with the King in his Legislative Power, since the words are the King by himself and his Council had Ordered and Established: But you have carried both your self as well as me, too far from the main Question; therefore pray give me some better reasons why you are of this Opinion, that the Commons were not Summoned again to Parliament till the 18th. of Edward I.

M.

I am now coming to it: But first remember that about an hour or two ago, I cited a Record of the 30th. of Edward I. which related to an Act of the 18th. of this King;* 1.156 by which Record it appears, that the Prelates, Earls, Barons and other great Men of the Kingdom had then in full Parliament on the first of Iune, granted him 40 s. on every Knights Fee to Marry his Daughter; and it thence also appears, that tho this Tax is said to be given for themselves and the whole Community of the Kingdom, yet it was by the Community of Tenants in Capite alone, because it was to be raised whol∣ly upon Knights Fees; so that hitherto in this Kings Reign, there appears nothing that can plainly evince, either the Summoning, or being of any Commons in Parliament, as now understood; we are at least left at great uncertainties, nay in my Opinion, the proof is more strong on the Negative, that there were none.

F.

I wonder you should mention this Writ any more, since I have already confuted the Doctors notion about it, and proved that it was a general Tax granted by the Parliament upon the whole Kingdom, and not laid either by, or upon, the Community of the Tenants in Capite alone, nor does the way of Taxing by 40s. upon every Knights Fee at all prove it; for if it is to be under∣stood of Lands only held by Knights Service; then this Tax could not have extended to any other Estates, as certainly it did, since the King could by King Iohn's Charter, have forced his Tenants in Capite to grant him an Aid towards this Marriage of his Daughter, and (if what you say be true) could also have made all the Mesne Tenants of the Tenants in Capite, to have con∣tributed to it according to the Knights Fees they held, and this without cal∣ling a Parliament at a••; therefore pray give some better Authority then this, for I••e assure you I am not at all satisfied with it.

M.

I will now give you the Writ the Doctor has discovered, and by which, it will plainly appear, that this Tax granted in the 18th of this Kings Reign,* 1.157 was given before ever the Com∣mons were Summoned to it; and for this, the Learned Do∣ctor has found out a loose bundle of Writs of this year, di∣rected to the Sheriffs of most Counties of England, and they are the ancientest Extant, or perhaps that ever were (for in probability, the calling of Knights, Citizens and Burgesses according to that Example was discontinued from the 49th. of Hen. III. unto this time) by which two or three Knights were di∣rected

to be chosen for each County; pray read the Writ it self, since I look upon it as the first Pattern of this kind, that of the 49th. of Henry III. seem∣ing to have been Written in haste without those Forms, that were afterwards required in Writs of this kind, and particularly in this: Edwardus Dei Gratiâ Rex Angliae, Dominus Hiberniae▪ & Dux Aqui••aniae Vice-comisi West∣m••rlandiae Salutem. Cum per Comites, Barones & quosdam alios de Proceribus Regni Nostri, nuper fuisse••us super quibusdam Speci••liter requisiti super quibus, tam cum i••sis, quam cum aliis de Comitatibus Regni illius Colloquium ha••ere vo∣lumus & Tyactat••m, tibi praecipimus quod duos, v••l tres de Di••cretioribu••, & ad laborandum potentioribus Militibus de Comitatu praedicto ••ine delatione Eligi, & eos ad nes usque West monasterium venire facias ita quod sint ibidem à die Sancti Iohannis Bapt. prox. futur. in tres Septimanes ad ultimum cum plena potestate pro se, & Communi••ate Comitat. praedicti adconsulendum, & consentienoum pro se & Communitate illâ hiis quae Comites, Barones, & Pro. eres praedicti, tunc dixerine concordanda, & habeas ibi h••c Breve. Teste meipso apud Westmonast. 14 die Jun. Anno. Regni Nostri 18.

Whereby you may see in the first place, that there was yet no certain number of Knights of Shires settled, who were to be Summoned to appear at this Parli∣ament: And you may in the next place remember from a before mentioned Re∣cord of the 30th. Ed. I. that on the first of this Month, the King had Scutage then given him in full Parliament; and now Fourteen days after, at the In∣stance of the Earls, Barons and other great Men of the Kingdom, upon cer∣tain matters by them moved and propounded to him; He Issued His Writs of Summons to the Sheriff•• of the several Counties, to cause to be chosen two or three Knights of each Counties, to come to him at Westminster, three Weeks after St. Iohn Baptist at farthest. We may also further observe from this Writ, that it is most probable (though it is not here absolutely said so) that the King was moved by the Earls, Barons and great Men of the King∣dom, to call these Knights to this Parliament, and that as this Writ is the first to be found after that of the 49th of Henry III. so it really was the first Writ of Summons after that time, for the Election of Knights to represent the several Counties.

In the next place, that there could ••e no Citizens nor Burgesses chosen, or sent to this Parliament by Vertue of this Writ, as they were afterwards by directions contained in the Writs sent to the Sheriffs for Electing Knights of the Shires.

Lastly, that by this Writ, the Knights were to come to the King at West∣minster, three Weeks after St. Iohn Baptist at furthest. which was the 15th. of Iuly; also, that in the same year, between the time of the date of the Writ, and the time appointed for Meeting of the Knights, The Statute of Westminster the third was made as may appear by this Clause at the beginning, Dominus Rex in Parliamento suo apud West monasterium post Pascha-A••o Regni sui Decimo octavo, videlicet in Quindena Sancti Iohannis Baptist. (that is the 8th. of Iuly) ad Instantiam Magnatum Regni sui Concessi••, Providit. & Statuit, Quod de caetero liceat unicuique libero homini, &c. So that this was the same full Parliament, which gave the King Scutage on the first of Iune,

and then the King and Barons, without the Commons, made this Statute, or the Knights had another Summons after the Date of this Writ (for before that they were not in Parliament) or the Knights came a Week before they had need to have done, but neither of the latter are probable, seeing the Knights then were great Husbands of their time and Expences, and were not very forward to undertake this Service, as being constantly bound with, or engaged by Sureties, or Manucaptors for the performance of it, and their appearance in Parliament, and therefore it seems reasonable to con∣clude, that this Law was made without them, and before their coming to Parliament.

So much of this Writ, from which, as well as divers following Writs and other Records; it is evident that it was from this Kings Authority, and at this very time that the House of Commons came to be fixed and establish'd in the present constant Form, it is now, and hath been in, for many Kings Reigns, and than the King in this Age was not altogether confin'd to any Number of Knights, Citizens or Burgesses, nor were several strict Forms and Usages now Practiced ever then thought of, nor some Legal niceties and Punctilio's now in use, then judged absolutely necessary.

F.

Pray give me leave to answer what you have now said from this Writ, before you proceed to any other Record. First as to your Argument from the variety or uncertainty of the number of Knights of Shires, which you at first suppose to have been Summoned to Parliament, that I doubt will prove a gross mistake, for if we closlely consider the Writ it self, it will prove no more then a Summons of these Knights to a great Council, Colloquy or Treatise (as the Writ here cal'•• it) and not to a Parliament, the words Col∣loquium & Tractatum mentioned in the Writ, not then signifying a Parlia∣ment; but such a Collequy Treatise, or great Council as is mentioned i•• the Statute of the 7th. of this King, forbiding all Men coming with Arms to such Assemblies wherein there is also a plain difference made between Parliaments and such Treatises as I have already proved from the Statute of the Staple of the 27th. of Edward III. which was first made in such a Trea∣tise or Council as appears by the Title to the said Statutes, and was after∣wards confirmed by the next Parliament, in the 28th. year of the same King, Cap. 1. whereby Magna Charta, and all other Statutes before made are al∣so confirmed; for had this Summons been to a Parliament, sure there would have bin also Writs of Summons found for the Electing▪ and returning of Citi∣zens and Burgesses, as well as Knights of Shires to this Assembly, and these Writs of Summons would have been entered on the Dorse of the Close Rolls according to the Rules, your self have laid down; whereas this Writ is only found, in a loose Bundle of Writs of divers other Matters; neither is there any title in the Margin of the Record (as is usual in Writs of Summons) to Parliament, whereby it may appear, what kind of Assembly this was, to which these Knights were Summoned, nor is your Argument from the date of the Writs of Summons any convincing proof, that the Commons were not in this Parliament at the time of the Writ Issued; since during the Session of this Parliament, the Earls and Barons might make this Request, for calling

of those Knights out of the Counties, to give their Opinions and Advice in the matters to be proposed to them by the King, and that thereupon, the King at their Request, thought fit to Summon two or three more of the Knights of Shires to have their advice also.

And as for your last Argument, that the same Parliament which gave the Tax above mentioned on the first of Iune, must be sitting, even to the very time of the return of the Writ, because the Statute of Westminster, the third was mane on the Quindene of St. Iohn Baptist: (viz. the 8th. of Iuly) So that the King and the Barons, without the Commons, made this Statute, and that these Knights were Summoned after the act was passed. There is no necessity of making these Consequences, for this Parliament might very well be dis∣solved that very day this Act passed, and this Council or Colloquy might be Summoned to Meet within three Weeks after Mid-Summer (i. e. about the 16th. of Iuly) according to the Writ you have cited. And so I believe it would appear were the Rolls of that Parliament now Extant, as th••y are lost, as well as those of divers succeeding Parliaments.

M.

Well then you are forced to confess, that this Writ was Issued whilst the Parliament was still sitting; and if so, I cannot see any need there was of another less Council or Colloquy to meet, after the Parliament was ended, since as long as it was sitting, that could have much better dispatch'd all such business as the King had to do, and how the King could foresee that he should have need of another Council before he had any business for it, seems very improbable; and therefore I think I may very well suppose with the Doctor, that this Writ was a Summons to Parliament, though it does not (I grant) expresly call it so; but your Argument is of no weight, that because this Writ was not entred upon the Close Roll, that therefore, it is not to be look'd upon as a Summons to Parliament, as also because the Title to it is only Summonitio ad Consilium; since the Doctor in his answer to Mr. P. gives us several Parliament Writs upon the Close Rolls with this Title ad Consilium, which proves that the King had in those days a larger Power of calling what number of Knights of Shires he pleased to Parliaments, as appears by two other Writs he there gives us of the 22d. of Edward I. which are entred in the Close Rolls to the Sheriff of Northumberland, to cause two Knights to be Elected for that County, bearing Date the 8th. of October, and the next day after the King, as appears by another Writ to the same Sheriff, ordered him to cause to be chosen two other Knights besides the former, and to cause them to appear at Westminster the morrow after St. Martin's Day, to hear and do such things as the King should more fully enjoyn: The like Writs (with bot•• the former) were sent to all the Sheriffs in England. Now though it is true▪ that the Title to the first of these Writs, is only de Melitibus Eligendis & Mittendis ad Concilium; yet these words well considered must certainly here mean a Parliament, both these Writs being entred upon the Close Rolls where all Writs of this kind are wont to be found, as I have already observed; and besides the words in the first Writ are the same with those which are found in several other Writs of Summons to Parliament, viz. ad Consule••dum, & Consentiend. pro se & Comm••nitate illà biis qua Comites, Barones & Proceres pr••∣dict••: concorditer ordinaverint in praemissis.

F.

I confess we are at a loss in this affair, for want of the Records of this Parliament, which if we had I doubt not but there would appear very good reasons why the Lords did then desire the King should consult more of the Knights of the Shires then what had appeared at this Parliament, as that Lords might refuse to give their Advice in the matters proposed by the King, without he would also consult more of the best and ablest Knights of Coun∣ties, who were to come up with fresh Power, and further Instructions, what answer to give the King in the matters he should propose, which, that it was neither to give Money, nor make Laws, is plain; since (you say) the Tax of 40s. on even Knights Fee was given, and the Statute of Westminster 3d. made before they came up to Parliament; but indeed the words in the Writ plainly prove that this was no Parliamentary Meeting, since they are here only Summoned, ad Con ulendum, & Cons••••iendum; whereas in all Writs of Summons to future Parliaments, the words are ad faci••ndum quod ••unc de Com∣muni Consilio ordinabitur; or the like, as appears by the Writ of Summons of the 23d. of this King,* 1.158 which the Do∣ctor has printed, whereas the words in this Writ are ad con∣sentiendum, &c. ••iis qua Comites▪ Barones & Proceres ••radicti rune duxerint concordanda, &c. And if this had been done at the request of all the Tenants in Capite (as you suppose,) how come the Bishops, Abbots and Priors, who held also in Capite to be omitted, and not mentioned in this Writ, to have joyned in this request, as well as the Earls, Barons and great Men?

But as for the Doctors next precedent, viz. a Writ to the Sheriff of Nor∣thumberland, to return two Knights of the Shire, and then the next day after, other two for the same County, I am not at all satisfied, that those Writs were a Summons to a Parliament and not to a great Council, for besides the Title of the Writ is de Militibus Eligendis & Mi••tendis ad Consilium, and the words in the Writ are not the same with those which were commonly used in Writs of Summons to Parliament, as I have already shewn' you in this Writ of Summons we are now upon: Whereas in the Summons to Parliaments of the 23d. of this King,* 1.159 the ordaining part doth as much refer to the Commons, as to the Lords, the Commune Consilium consisting of both; whereas in these Writs you have cited, they were to consent to such things which the Earls, Barons and great Men, should think fit to agree to; but that I may shew you a little more plainly, the absurdity of this fancy of your Doctors, that these Knights of Shires were now Summoned, the Parliament sitting; pray let me ask you one or two Questions concerning this business, pray who were these Gentlemen that the King you say thus Summoned to Parliament?

M.

According to the Doctors account, they must have been all Tenants i•• Capite, since he often tells us, that out of these alone, the Knights of Shires were chosen at the first.

F.

Well, but then who were these Magnates and Alii Proceres men∣tioned in the Statute of Westminster, and in this Writ of the 18th. of Edward I.?

M.

I must own my self at a loss, certainly to define who they were; for if I say they were the smaller Tenants in Capite, who are here put as a distinct order from the Comites & Barones immediately foregoing; I foresee you will ask me how these Gentlemen could be ••ummoned, since all the Tenants in Capite were at this Parliament already; therefore I must tell you, I think there were only some of the greatest and wisest of the Tenants in Capite who were no Barons now Summoned, and whom the Doctor tells us, were often called to great Councils, as Barons, Peers, and who, though sometimes cal∣led to sit among the Lords, were often again omitted in several Kings Reigns, so that this Parliament was composed (as those of Marlbridg and Glouces••er) not of all, but only of the more discreet of these lesser Barons or Tenants in Capite.

F.

If this be all you have to say to extricate your self out of this difficulty, I think it will not amount to much, for in the first place, all you have here said is meer conjecture without any proof; since this Statute of Westminster 3d. says only in general, that it was made at the Instance of the Magnates under which Title your Doctor,* 1.160 when he ex∣plains the Writ of Summons to the Arch. bishops of Canter∣bury tells us, were frequently comprehended the Barones Majores, the Earls and Barons, as under Minores, the lesser Tenants in Capite, which when the Statute of Westmister the first was made he will have to be the whole Commonalty of the Land therein mentioned; and why this Parlia∣ment of Westminster the 3d. should not consist of the same Members now, needs some better reasons than your bare affirmation to the contrary. Be∣sides this Prerogative of calling these Barons Peers to Parliament, did not only extend to Tenants in Capite, but to other Mesn Tenants also; if the King thought them considerable enough for Estates, or wisdom to do them that Honour, and so was not confined to Summon none but Tenants in Ca∣pite, who according to your Interpretation of K. Iohn's Charter had all a right to appear by General Wr••ts, at the Common Council of the King∣dom: but you may put what sense you please on these words Magnates & Proceres, yet I am sure your Doctor can take them in no other sense than for the Community of all the Tenants in Capite both great and small;* 1.161 and so he tells us in his Glossary when he Comments upon the Writ of the 30 Edw. 1. which you now menti∣oned, and which refers to this very Parliament of the 18th. when Forty Shillings was granted on every Knights Fee to Marry the Kings Daughter;* 1.162 and there the Doctor im∣mediately tells us,

that such as payed that Scutage were Tota Communitas Regni, and no others; and of these the Tenants in Capite granted. and payed it first for themselves and Tenants, &c. and which must certainly relate to this very Parliament of the 18 Edw. 1. or none at all.

M.

I confess I do not see how the Doctor can solve this difficulty; but by denying what he has already said; and affirming, as I do now, that all the lesser Tenants in Capite were not Summoned to this Parliament, but on∣ly

some of them at last ordered by this Writ to be chosen and returned by the Counties.

F.

Yes, he might do it, if bare affirming were to pass for proof; but I shall not give up my reason upon no better Grounds either to him, or you; not to mention the improbability of the thing, that the King should be now over∣perswaded by the Earls, Barons, and other Great Men to call these Knights of S••ires which had been now omitted ever since the 49 Hen. 3. for above twenty year••, when he had no need at all of them▪ but rather the contrary advantage of Governing without them, since it is the Policy of Princes ra∣ther to diminish than increase the number of the Members of their great at well as private Councils, who certainly are most easily managed when they are a few than a great many.

M.

But what if we should go from the Doctors Position, and say, that perhaps these Knights were chosen out of the Mesn Tenants of the Tenants in Capite, many of whom I grant might be considerable for Interest as well as prudence; and with whom the King at their request might desire to treat of certain matters which had been before moved and propounded by him.

F.

This is all that can be said, and yet is much more unlikely then the other; since to believe that the Earls, Barons and Tenants in Capite should be now grown so weary of their Power of imposing Taxes▪ and making Law•• for the whole Nation as to, intreat the King to admit their under-Tenants to partake of so large a share in both, is so extravagant a Fancy, that if it had not suited with the Doctor's present Hy∣pothesis, he would never have asserted it in cold blood; since himself affirm•• that upon the making of King Iohn's Charter, that the Earls, Barons and Tenants in Cap••••e, were the only Parties to it, and that all the rest of their Tenants who were there present were only their Retinue and Tenants in Military Service which were with them at Runnemede, and were hardly to be reckoned among the Freemen of the Kingdom,* 1.163 all the rest being only Followers who helped to augment the noise; and were not Law-makers, for 'tis not probable (says the Doctor very well) that those men that had the force of the Nation would permit men of small Reputation to share with them in Law-making, those that had the power of this or any other Nation de Fac••o, always did give Laws, and Tax the People. But it seems these Great Lords and Tenants in Capite, are either very stiff to maintain; or else easie to give up their priviledges just as it best suits with the Doctors present oc∣casion; but the Doctor may contradict himself as much as he pleases; since it is not his fault, but his Hypothesis that hath lead him into it.

M.

I confess it does seem somewhat hard at present to conceive it, but we know not what reasons the Lords and Tenants in Capite might have had to desire the Concurrence of these Knights of Shires at this Juncture of time; but that their coming to Parliament looks like a new Institution, may far∣ther appear from hence, that the King for a good while after the introducing Knights of Shires to serve in Parliament,* 1.164 was wont to use the liberty of Nominating the same Mem∣bers

of Parliament who were formerly chosen, appears by a very remarkable Writ the Doctor there likewise gives us of the 28th. of the same King,* 1.165 directed to the Sheriff of Cumberland, whereby he is commanded to cause to appear at the Parliament at Lincoln on the Octive of St. Hilary the ve∣ry same Knights, Citizens and Burgesses who had before appeared at the last Parliament, unless any of them were sick or dead. From which we may collect, that our Kings in those days often made use of their Prerogative of Summoning such Members to Parliament, as were not then actually chosen to serve in that Parliament; and for a farther confirmation of this, there is still extant upon Record in the same Roll the Returns of several of the Sheriffs upon the same Writs. Whereby it appears that the same Members were returned to appear in this Parliament who had before served at the precedent, unless in the Case of some that were sick or dead.

And that our Kings had not yet a long time after lost their Prerogative of Nominating how many Knights, Citizens and Burgesses they would have chosen and returned to appear in Parliament, may appear by a Writ of the 45. Edw. 3. whereby one Knight for a County,* 1.166 and one Citizen and Burgess, and those too, na∣med by the King to the Sheriff were to be Summoned to ap∣pear at Winchester to do those things that are appointed in the same Writ, which were likewise directed to all the Sheriffs in England; and that this was a Parliament appears from hence, that the Knights, Citizens and Burgesses had Writs for their Expences at this Meeting at Winchester.* 1.167 And tho in these Writs it is only expressed by these words▪ Magnum Consilium Nos••rum, yet from this Writ of ••ummons it is evident, it did the Business of a Parlia∣ment, and so no great matter for the Name.

F.

If th••se be all the Arguments you have to produce a∣gainst the Ancient Right of the Commons being part of the Parlia∣ment before the 18 Edw. 1. I doubt they will not be sufficient to do the bu∣siness. For as to this Record of the ••8 of Edw. 1. whereby the King is sup∣posed to have had a power to cause those Knights of Shires to be returned who were Elected to serve in the Parliament before going without any new Ele••tion, this is altogether Pre••ar••ou••; for if you will but read the Writ it self, and the reason of the King's thus acting, it will plainly prove the con∣trary. For the King re••ite•• in that Writ,

That having resolved that the Charter of Forests should be observed and that his Subjects had made a per∣ambulation thereupon; yet that he would conclude nothing in that matter, without the Counsel of the Prelates, Earls▪ Barons, and other Great Men; and therefore desiring to hasten that business, as far as he could without any delay. He thereby orders him to cause to come before him to the Parliament at Lin∣coln the same Knights, Citize••n, and Burgesses as were before Elected.

Now the King might have very good reason for it, why he would rather treat with them than with any other, because they had been privy to all the pre∣cedent transactions concerning this business of Forests, and therfore were most

likely to come to the speediest conclusion with the King in that affair, as being better instructed in it, than it was possible for any new Members to be, who had not before been privy to the whole Affair.

Yet that the King never intended hereby to impose Representatives upon his People without their free Consent, appears by this Clause at the end of the said Writ. 〈◊〉〈◊〉 qu••d Milites, C••ves & Burgenses praedicti dictis die, & loco n••••dis omnibus inter••ut eum plena potestate aud••endi, & faciendi ea quae ibidem in praemiss•••• ordinaeri con••ingent pro cummuni commodo dicti Regni. Now how these Knights, Citizens and Burgesses could appear in Parliament with full power of acting therein, without the new Election or Confirmation at least of those whom they represented, I should be very glad ••f the Doctor or your self could inform me▪ But to come to your next Record of the 45 Edw. 3. whereby you would prove that the King in those days had a Power of ap∣pointing not only how many Citizens and Burgesses should appear in Parlia∣ment for each County, but also could name the Persons that should appear therein. I wonder how the Doctor could so impose upon your, or his own, understanding since nothing is more apparent than that this Council at Win∣chester to which they were Summoned, was no Parliament at all but a Great Council, as appears by the very words of the Writ it self, which recites,

That whereas a Parliament lately at Westminster had given the King a Su••∣sidy of 24 sh. and 3 d. upon every Parish in England, that the King being willing to be better inform'd after what manner the Levy of this Tax might be soonest performed, and because it would be burthensom for all the Great Men, Knights, Citizens and Burgesses, who came to the said Parliament to meet together again for this matter, therefore he Ordained for the sparing their Pains and Expences, to have a Colloquy and Trea∣tise with some of the same Members, and therefore names the very Persons whom he commands should appear before him at Winchester to in∣••orm him and his Council of the best manner and form whereby the said Tax might be soonest and most conveniently levyed, according to the in∣tent of the said Grant.

So that nothing is more plain from the Writ it self, than that this Assembly was no Parliament; the proper Business of which is always to make Laws, give Money, or re••ress Grievances, none of which ••ut it is apparent were the cause of this meeting. To which these that were Summoned did not appear as Knights of the Shires (their power being expired at the Dissolution of the Parliament) but only 〈◊〉〈◊〉 so many particular private men, who by reason of their Interest in the Country the King supposed could best inform him in the business above mentioned. But that in the Reign of this King there were several Councils of this kind, which tho no Parliaments as having but one Knight, one Citizen, and one Burgess, and only making Temporary Constitutions concerning Trade, and other things of less moment, which were to be put in practice for a time till they could be confirmed by the next Parl••ament, appears by the Ordi∣nance or Statute of the Staple above mentioned. And of these Mr. Pryn in the first part of his Parliamentary Regi∣ster of Writs gives us divers Precedents;* 1.168 which he rightly

〈1 page〉〈1 page〉

〈1 page〉〈1 page〉

So that I hope I have now fairly run through, and examined all the Pre∣cedents which you or your Doctor have been able to urge in this great Question▪ and I think, if you are a•• candid and ingenuous as I take you to be, you will not assert, that any of them do amount to a proof▪ either that the Commons were never Summoned from the ••9th. of Henry III. to the 18th. of Edward I. or that the Writs of Summons he there produces, was to a Parliament and not to a great Council, or that the King ever took up∣on him to appoint what number of Knights, Citizens and Burgesses, should come to Parliament, or could nominate who they should be, or could dis∣charge whom he pleased from serving as Members therein. All which your Doctor, I think with greater confidence, than right understanding of the true meaning of the ancient Writs and Records of Parliament, hath under∣taken to assert▪ I beg your pardon for troubling you so long on these Heads. since the length as well as diversity of Records you have now cited, could not be answered in less compass.

M.

I must confess, you have given pretty plausible answers to most of the Authorities and Records I have now cited, yet I cannot assent so far as to come over to your Opinion, without a longer consideration of the strength of the answers you have now given me to the Doctors Authorities. But in the mean time you would oblige me, if you could give me the rest of your Ar∣guments, whereby you would undertake to prove that the Commons have been always an essential part of the Parliament ever since the Conquest, for it seems to me, by what I have read out of our ancient Historians, that there is no express mention made of them by Name. in any Historian or Re∣cord, till the Reign of Edward I. and as for those Arguments Mr. P. hath given us to the contrary, methinks the Doctor hath given satisfactory an∣swers to them.

F.

I think I have made it clear enough, that the Commons of England were a constituent part of the Wittena G••••ote, or Common Council of the Nation before your pretended Conquest; and if it doth not appear that they were deprived of that right by the Normans entrance (which you have not yet proved) I think we may very well conclude, that things continued in the same State as to the Fundamental Constitution of the Government▪ as well after your Conquest as they did before. Nor have you as I see proved any thing to the contrary. since you confess that as much a Conquerour as King William was, yet he altered nothing in those Fundamental Constitutions, the most that you pretend he did, being only in an alteration of the Persons, who were the Legislators from English to French Men or Normans; so that upon the whole matter, I think there is no need of any new Arguments to confirm this truth, since the Commons of England, claiming a right by Pre∣scription, of having their Representatives in Parliament; if you nor your Doctor, nor none of those whom he follows, can prove by sufficient Autho∣rities when this began, then I am sure you ought if you were of the Jury in th••s matter, to find for the Tenants in Possession; since that, to∣gether with a constant usage, time out of mind is as well by your Civil as our Common Law a sufficient Title to any Estate; yet I doubt not but to

shew you the next time we meet, that the Doctor has no•• given such satis••a∣••••ory answers as you imagine to most of Mr. P's best Arguments, proving this right of Prescription to have been the constant Opinion of an succeeding Ages; to which I shall also add divers new Authorities, as well from ancient Historians, as Parliamentary Records and Statutes, but since it is grown now very late, I beg your pardon till another opportunity.

M.

I thank you Sir for the pains you have taken to satisfie me in this gre••t Question; but pray come again within a Night or two, that we may make an end of this weighty Controversie, and then we may proceed to wha•• we at first intended, viz. whether the King can ever lawfully be resist∣ed, or whether by any Act he may Commit, he can ever 〈◊〉〈◊〉 to be King.

F.

I accept of your Proposal, and shall wait of you again as you ap∣point, but in the mean time pray consider well of the Authorities I have now urged, and the Answers I have given to your Argument, and then I hope there will be the less need of new ones.

M.

I shall not fall to do it, but in the mean time am your humble Servant.

F.

And I am yours.

Notes

• * 1.1

  B. A. P. p. 117.
• * 1.2

  Ib. p. 121.
• * 1.3

  B. A. P. p. 117.
• * 1.4

  Bract. lib. 2. c. 16. p. 37.
• * 1.5

  i. e. When the King comes to Parliament.
• * 1.6

  P. R. C. p. 131.
• * 1.7

  p. 680.
• * 1.8

  B. A. P. pag. 113.
• * 1.9

  Fol. 67. N. 20.
• * 1.10

  Fol. 69.
• * 1.11

  Fol. 658. N. 40.
• * 1.12

  B.A.P. pag. 115.
• * 1.13

  Cl. 19. H. 3. m. 8. dorso.
• * 1.14

  This Man∣date was not given him as Chancellor, but as a Te∣nant in Capite.
• * 1.15

  Pag. 532.
• * 1.16

  Inter Commu∣nia de Term. Sancti. Mich. Anno. 42. H. 3. Rot. 4. de Scut. Levand.
• * 1.17

  Rot. Pat. 15. H. 3. N. 3.
• * 1.18

  Rot. Claus. 4. H. 3. M. 5.
• * 1.19

  Rot. Claus. 16. Hen. 3. M. 2. Dorso.
• * 1.20

  Sub Essigie Vespasiani B. 11. fol. 20.
• * 1.21

  B. G. pag. 45. Hottoman in verbis Feud. Col. 924. D.
• * 1.22

  Speaking of Prince William Son to Henry the 1ft. f. 90. A. N. 30.
• * 1.23

  Pat. 15. Io∣han P. 2. M. 2. N. 9.
• * 1.24

  B. G. 45. B. A. P. p. 67, 68.
• * 1.25

  B. G. p. 45. Cl. 42. H. 3. m. 10. dorso.
• * 1.26

  B. A. P. p. 220, 221.
• * 1.27

  Rot. Pat. m. 7. dors.
• * 1.28

  B. A. I. 221.
• * 1.29

  Cl. 28. H. 3. M. 12. dorso.
• * 1.30

  B. A. P. p. 71.
• * 1.31

  Vi. Matt. Pa∣••is
• * 1.32

  B.A.G. p. 159.
• * 1.33

  B. G. pag. 51.
• * 1.34

  B. A. l. p. 167.
• * 1.35

  B. A. P. p. 170.
• * 1.36

  B. A. P. p. 68.
• * 1.37

  B. A. P. 137.
• * 1.38

  Pag. 122.
• * 1.39

  Rot. Claus. M. 7. dorso.
• * 1.40

  Lately Publish∣ed at Oxford, 1692. in Sax∣on and Latin. p. 186. in the Printed Copy.
• * 1.41

  2 Vol. f. 451.
• * 1.42

  Lib. 3. f. 58.
• * 1.43

  Col. 1651.
• * 1.44

  Fol. 125.
• * 1.45

  P.R.C. p. 130.
• * 1.46

  Fol. 90.
• * 1.47

  B. A. I.
• * 1.48

  Vi. Mat••. pag. 234.
• * 1.49

  Fob. 639. A. D. 1244▪
• * 1.50

  I. A. A. p. 207, 208.
• * 1.51

  Tom. 1.
• * 1.52

  B. A. P. p. 197.
• * 1.53

  M. 10.
• * 1.54

  M. 6.
• * 1.55

  Fol. 391.
• * 1.56

  Ibid. 199.
• * 1.57

  Ibid.
• * 1.58

  Vi. Spell. Glos. Tit. Gula Au∣gusti.
• * 1.59

  P. R. C. Rot. Pat. 48 H. 3. M. 16.
• * 1.60

  ••. A. P.
• * 1.61

  Rot. Cl. 49. H. 3. M. 10. d••rs••.
• * 1.62

  R. R. C. Rot. Pat. 51 H. 3. M. 16.
• * 1.63

  Vi. Dict. 6th. Pag. 425.
• * 1.64

  See the Old Fr. Statutes in Tottle.
• * 1.65

  Rot. Cla••. 28th. of Ed. 1. m. 12. dorso.
• * 1.66

  Viz. 4th. part of Mr. Pryn's Parliament. Re∣gister, p. 9.
• * 1.67

  See Tottle's Collection.
• * 1.68

  Rot. Parl. 12. El. 2. m. 17.
• * 1.69

  Tottle's Stat. p. 96.
• * 1.70

  M. 8.
• * 1.71

  M. 29.
• * 1.72

  M. 21.
• * 1.73

  B. G. p. 32 33. Rot. Pat. 30. Ed. I. m. 1.
• * 1.74

  Rot. ••in. 20. Ed. 3. M. 7. See it at large B. C. p. 37.
• * 1.75

  24. H. 3. M. 8. dorso. 26. H. 3. Par. 1. M. 6. dorso. Tit. de Militi∣bus faciendis.
• * 1.76

  Pag. 172, 173.
• * 1.77

  Pag. 37.
• * 1.78

  B. G. p. 34.
• * 1.79

  Claus. 34. E••. 1.
• * 1.80

  Annals Burt. pag. 271. & dein••.
• * 1.81

  Printed at Oxon 1687.
• * 1.82

  B. A. P. P. 125, 126.
• * 1.83

  Vid. Christi. ••crip ores Cot. 24.29.
• * 1.84

  Pag. 376.
• * 1.85

  Fol. 445.
• * 1.86

  B. G. p. 64.
• * 1.87

  Ibid. pag. 65.
• * 1.88

  B. G. p. 65.
• * 1.89

  M. 6. Dor.
• * 1.90

  ibid. M. 8.
• * 1.91

  Rot. Pat. N. 5.
• * 1.92

  M. 9. dorso.
• * 1.93

  Rot. Cl. 2. Mem. dorso.
• * 1.94

  B. A. P. 117. E••d••in. Ibid. 121.
• * 1.95

  B. ••. A. pag. 179, 180.
• * 1.96

  Rot. 11. Hen. 3. m. 19.
• * 1.97

  Fol. 442.
• * 1.98

  F. 209. A. D. 1203.1207.
• * 1.99

  M. 1.
• * 1.100

  B. A. I. 178.
• * 1.101

  Rot. Cl. 52. H. 3. m. 10. dorso. Ryleys placit. Parl.
• * 1.102

  Pag. 441. b.
• * 1.103

  Vid. Chron. Thom. Wikes. & Annales de Waverly in Anno 1207. Published at Oxford.
• * 1.104

  B. I. A. pag. 171.
• * 1.105

  I. A. p. 22. Ro••. Pat. 3. E. 1. M. 6.
• * 1.106

  Rot. Bat. 20▪ E. 1. m. b.
• * 1.107

  P. R. C. p. 45, 46.
• * 1.108

  Rot. Aleman. 14 Ed. 3. m. 9.
• * 1.109

  B. A. P. pag. 171.
• * 1.110

  Vid. Chart. Fund•••• Monast. de Dunferling.
• * 1.111

  B. A. P. p. 96. & dein Statut. Williel. Reg. fol. 2. cap. 7.
• * 1.112

  Stat. Alexan. R••g. fol. 22. cap. 2.
• * 1.113

  Stat. Rob. 1. fol. 29.
• * 1.114

  Chap. 24.
• * 1.115

  Rot, Par. 17. E. M. 4.
• * 1.116

  Rot. Par. 18. E. 1. M. ••.
• * 1.117

  An. Do. 1320.
• * 1.118

  Part. 2. fol. 109. N. 10.
• * 1.119

  P. R. C. pag. 83.
• * 1.120

  B. A. P. p. 98. Stat Rob. 3. fol. 63.
• * 1.121

  Statut. Iacob. 1. ibid.
• * 1.122

  B. A. P. f. 99.
• * 1.123

  Vid. Present Stat. of Scot∣land, p. 17.
• * 1.124

  Ibid. p. 100.
• * 1.125

  B.A.P. p. 98.
• * 1.126

  B. A. P.
• * 1.127

  B. A. P. p. 68.
• * 1.128

  B. A. P. pag. 40.
• * 1.129

  B. A. P. pag. 68.
• * 1.130

  Tit. Liberi Homines & Libere Ten. p.
• * 1.131

  Vid. Fortis. de L••us. Leg. Ang. Cap. 36. pag. 84.
• * 1.132

  B. A. P. p. 87. & dein.
• * 1.133

  M. 3. dors.
• * 1.134

  M. 13. dors.
• * 1.135

  Cl. 38. Hen. 3. M. 14. dors. de Magnatibus vocatis al Con∣cilium.

  B. A. P. pag. 92, 93.
• * 1.136

  Additament. fol. 189. N. 50.
• * 1.137

  B. A. P. p. 134. & dein.
• * 1.138

  Rot. Pat. 48. Hen. III. M. 6. Dorso.
• * 1.139

  B. A. P. p••g. 137. Rot. Claus. 49. Hen. III. M. 11. Dorso. in Sch••dula.
• * 1.140

  B. A. P. p. 143.
• * 1.141

  Ibid. 139.
• * 1.142

  B.A.P. p. 144.
• * 1.143

  B. A. P. 144, 145.
• * 1.144

  B.A.P. Pag. 95.
• * 1.145

  Ibid. Sir R. Cotton's Col∣lection of Re∣cords in this Year.
• * 1.146

  Fol. 171, 174, 175.
• * 1.147

  Fol. 590.
• * 1.148

  Rot. Cl. M. 4. Dorso.
• * 1.149

  B. A. P. pag. 155.
• * 1.150

  B.A.P. p. 146.
• * 1.151

  Claus. 3. Ed. 1. in 1. die veni∣endo ad Par∣liamentum.
• * 1.152

  Ibid. p. 147.
• * 1.153

  Cl. 49. H. 3. M. 11. Dorso.
• * 1.154

  B. A. P. pag. 147.
• * 1.155

  B. A. P. pag. 147, 148.
• * 1.156

  B. A. P. pag. 149.
• * 1.157

  B. A. P. p. 149. & dein.
• * 1.158

  ••. A. P. pag. 155.
• * 1.159

  Claus. 23. E. 1. M. 4. Dorso.
• * 1.160

  B. A. P. pag. 147.
• * 1.161

  Tir. Communi∣••as Regni.
• * 1.162

  B. G. Pag. 32, 33
• * 1.163

  B.G. Glo. p. 51.
• * 1.164

  B. A. P. p. 152.
• * 1.165

  Cla••••. 28. Ed. ••. M. 3. Dors.
• * 1.166

  Claus. 45. Ed. 3. M. 2. Dors.
• * 1.167

  Cl. 45. Ed. 3. M. ••••▪ Dors. T. R. ••7. ••i••▪ Iunii.
• * 1.168

  P••g. 215.