more than the King's Tenants the Earls Barons and Freeholders of Chester gave by themselves Prince Edward afterward King Edward the First was in the 44th of H. 3. Count Palat. of Chester and he had his Common Council there wherein he consulted for the good of his Palatinate apart from the great Council of the Nation Barones Milites Cestrenses quamplures alii ad sum Domini Edw. coram ipso Domino Edw. apud Shorswick super statum terr illius Domini Edw. Consul propon quae hab proponenda Nay so careful were they that the Kings Feudal Jurisdiction should not interfere with the Earls or other Lords there that they insisted upon it as their Prerogative so say many Records that if one held by Knights service of the King and of any Lord within the Palatinate also the Heir should be in Ward to the Lord there not to the King and so by consequence of the other Incidents and attendance at the Kings Courts so that those of the County of Chester could be no part of this Common Council which therefore was not general In an Inquisition taken 22 Edw. 1. Dicunt quod a tempore quo non extat memoria tam temporibus Comitum Cestr quam temporibus Regis Hen. Patris Domini Regis qui nunc est ac tempore ipsius Domini Edw. Regis nunc secundum consuetudinem per quandam praerogativam hactenus in Com. Cestr optentam ufitatam Domini feodorum in Com. praedict post mortem tenentium suorum custodiam terrarum tenement quae de eis tenentur per servitium militare usque ad legit aetat haered hususm ten licet iidem tenentes alias terr ten in Com. praed vel alibi de Domino Rege tenuerunt in Capite semper huc usque habuerunt habere consueverunt c. King Edward the First sends Arch. Ep. Ab. Pri. Com. Bar Mil. omnibus aliis fidelibus suis de Com. Cestriae and desires them that since the Prelati Comites Barones alii de Regno which one would think took in the whole Kingdom had given him the fifteenth part of their moveables they would do the like and we find a Record of their giving a part from the rest of the Kingdom Cum probi homines Communitas Comitatus Cestriae sicut caeteri de Regno nostro 15 m. omnium bonorum suorum nobis concesserunt gratiosè So that these were then no part of the commune concilium Regni within this Charter and no man can shew that they were divided since the time of William the First 2. There were others who were obliged or had right to be of the Common-Council of the Kingdom though not upon the accounts mentioned in this Charter which if it appear then this was not the only Common Council of the Kingdom or the full form of it because there were Common Councils wherein were other things treated of and other Persons present For this it is very observable there is nothing but Aid and Escuage mentioned nothing of Advice or Authority given in the making of Laws which were ever enacted with great solemnity and all the Proprietors even of Palatinate Counties were present in Person or Legal Representation when ever a general or universal Law was made that bound the Kingdom But to wave this at present I shall give one instance from Records that others were to come or had right besides they that came upon the account of Tenure as here mentioned The Pope writes to King Hen. 3. in behalf of some of his great men who had complained to the Pope that he had excluded them from his Councils The King answers that they had withdrawn themselves and that Falcatius de Brent the chief of them was by the advice of the Magnates totius Regni all the great men of the Kingdom called and admonished to receive the Judgment of the King's Court according to the Law of the Land Cum aliâs teneatur ratione possessionum magnarum officii maximi quod habuit in Curiâ nostrâ ad nos in consiliis nostris venire non vocatus Although besides the obligation to obey the King's Summons he was bound by reason of great Possessions and a very considerable Place at Court to come to the King's Councils though not called that is when ever it was known that a Council was to meet which might have been done by an Indiction of an Assembly without sending to any body This shews very plainly that there were others to come to the Great Councils besides those that were to come to those Common Councils and other occasions for meeting for confine it to the persons and causes here specified they were to have Summons the Majores Special the Minores General by the Sheriffs and 40 days notice whereas the King said and could not be ignorant of King John's Charter which was but 10 years before that Falcatius was to come without Summons But there is a further irrefragable Argument in the Negative viz. that this Commune Consilium Regni was not the Great Council of the Nation And that is the Judgment of a whole Parliament in the Fortieth of Edw. the Third above three hundred years ago when 't is probable that they had as clear a knowledge of the Laws Customs and Publick Acts in King John's time as we have of what past in the Reign of Henry the Eighth It appears by the History that King John had resigned his Crown in such a Council as this here it was Communi Consilio Baronum nostrorum and yet the Prelats Dukes Counts Barons and Commons upon full deliberation in Parliament resolve that the resignation was void being contrary to the King's Oath in that 't was Sanz Leurassent without their Assent And the King could not bring the Realm in Subjection Sanz assent de eux If it had been in the Great Council of the Kingdom though it was not possible for the parties then at Council to have been assenting personally to King John's Resignation yet they had assented by a Natural as well as Legal Representative as has been long since shewn by the Judicious Mr. Hooker To be commanded we do consent when the Society whereof we are part hath at any time before consented without revoking the same afterwards by the like universal Agreement Wherefore as any man's Deed past is good as long as himself continueth So the Act of a publick Society of men done five hundred years past sithence standeth as theirs who presently are of the same Societies because Corporations are immortal That King John resigned his Crown without a Parliamentary Consent is to be taken for granted after this solemn determination the only question is whether 't was with the consent of his Curia or such a Commune Consilium Regni as his Charter sets forth The King had summoned his Military Council to Dover in the 14 of his Reign as in the third he had
vote in Capital cases But it lyes upon me here to shew when and how the Curia Regis went off I have before observed that the duty of Tenants was either to attend the King in his Wars in his administration of ordinary justice or as a Council to give him aid in lieu of or by way of advance upon their personal services in the Wars As they attended in the Wars they could not be a Court or Council and so no Curia Regis As a Court of justice their attendance was superseded by Magna Charta 2 or 9 of Hen. 3. Communia placita non sequantur Curiam nostram sed teneantur in aliquo loco certo Hereby the administration of justice was taken from the ordinary Curia and fix'd at the Courts in Westminster-hall Yet after this they continued a Court or Council for aids till the 34th of Edw. the first and by that they were wholly gone as a separate Court or Council being from that time no tax nor aid could be raised without full consent of the great Council or Parliament When this Court was gone as before I observed we find Tenants in chief pleading that their coming to the Great Court or Parliament was pro omni servitio which shews manifestly that the Great Court not only took in the less as it did in the nature of the thing being that and more but that it preserved the Image of it and indeed what was a duty in them that came to or were members of the ordinary Curia turn'd to a priviledge or right in them who succeeded to the dignity though not the services of Tenants As the Tenants were obliged by their Tenure interesse judiciis Curiae Regis they that succeeded to their dignity had right to be Judges in Parliament And whereas the Curia Regis as a Court of Justice was taken away or defeated in the time of Hen. 3. we find by Britton suppos'd to have wrote in the fifth of his immediate successor that the Barons were Judges in Parliament as the Tenants and Officers had been in the Curia Regis Et en case ou nous somes partie volons que nostre Court soit judge sicome Counts Barons en temps de Parliament Now let us return to the constitution of Clarendon The tenants whose duty it exacts the Lay Tenants disputed not were Tenants by Barony that is by Knights Service of the person or Crown of the King and except as there is excepted were of duty to be present at all Tryals or Judgements or to exercise Jurisdiction in all causes but judicium vitae vel membrorum they were not to meddle with when they came in judicio in jurisdiction or the tryal of causes ad judicium vitae vel membrorum that is to such a cause or the exercise of such a jurisdiction or such a tryal they were to withdraw and this is the plain sense of judicium vitae vel membrorum given us by that Great Judge learned both in the Common and Civil Laws Bracton who wrote in the Reign of Hen. 3. Grandson to this King who enforc'd the leges avitas in this particular and others contain'd in the Constitution of Clarendon This Great Lawyer having enumerated several priviledges or jurisdictions granted from Kings of England to their subjects amongst other things has these words Item si cui concedatur talis libertas quod habeat soke sake toll them Infangthef utfangthef Judicium vitae membrorum furcas alia quae pertinent ad executionem judicii c. Here this Judicium vitae membrorum must be meant of the whole tryal or jurisdiction otherwise it is supposed that he tells us the King granted those men Liberty to pronounce or depute those that should pronounce the final Judgment who yet neither by themselves nor Deputies had any thing to do with the praeliminaries the questions arising between and leading to the Justice of the Judgement which is an absurd supposal The having Judicium or power in judicio does not as I conceive any way suppose a tryal already begun and the Bishops present so far in it but when it comes to the point of mutilation or death then they have leave to withdraw that is they are a Court or of the Court for such a cause and yet they are not a Court for such a cause for the cognizance of causes takes in the Judicium the tryal in the agitation Agitare judicium and in the final or solemn pronouncing of the Judgement It is indeed possible though not rational that the law should give the Jurisdiction over part of a Cause and not the whole yet 't is not to be imagined that such was the meaning of the Law-makers especially when we find the words of the law according to the sense put upon those words by the most learn'd in the age nighest to them that transmit the law to us are not to be brought to such a dividing sense without a great deal of force And to this the several other copies of this constitution give weight But we are told that the sense is best understood by the practice of that age If the sense be plain a contrary practice is not to determine the sense another way as as great an Author the learned Doctor Stillingfleet proves at large in his answer to Mr. Cressy's Epistle Apologetical where he shews the number of Statutes made against Provisors in express terms And yet when the King of England comes to settle the points in difference between him and Pope Martin the 5. there is no manner of regard had to the Statutes of Provisors although so often repeated nor did common practice agree with the positive and plain law But the testimony of Petrus Blesensis brought to prove the practice in the time of Hen. 2. I could set aside with better colour than the Author of the Grand question does the true sense of judicium and in judicio For Petrus Blesensis joins together the Principes Sacerdotum and Seniores Populi the last of which in common acceptation relates to the Laity and for their withdrawing just at the final judgement surely there could be no pretence from the practice of that age But let 's take his authority and make the best of it Principes Sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis ideo seque immunes à culpâ reputant quod mortis aut truncationis membrorum judicium decernentes à pronunciatione duntaxat executione poenalis sententiaese absentent Here he expressly confirms the sense which I shall enforce and makes the votings in the preliminaries mortis aut truncationis membrorum judicium decernere Some Clergy-men it seems did thus decernere judicium sanguinis and he blames them for it but can their practice of any thing against law be an
to the Judgement But of this the great Council at Westminster in the year 1175. is the best Interpreter And if the Clergy-men neither before the constitution of Clarendon nor by it were excluded from medling in these causes they are by the last in full Parliament the testimony of which is transmitted by us by no less an Author than Gervase of Dover who liv'd in the very time and whose credit this learned Person supports by following him rather than Matthew Paris In hoc concilio he tells us ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula amongst which the third is this Hiis qui in sacris ordinibus constituti sunt Judicium Sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant aut inferendas judicent c. this is almost the same in words with that of Toledo and by the concession of the Learned Author of the Gr. Question that of Toledo was then produced by Richard Arch-bishop of Canterbury the same we find in Hoveden said in the Margent to be ex concilio Toletano Judicium sanguinis agitare non licet surely comes up to the preliminaries and I cannot understand the coherence of saying to this effect It is a received Maxime that Clergy-men ought not so much as to vote in preliminarys relating to capital cases and therefore to give the final Judgement is only unlawful by the Canon which declares that to vote even in preliminarys is unlawful In Richard the second 's time the Bishops understood not this nice reasoning and therefore they enter their formal Protestation on Record Agitur de nonnullis Materiis that is Capital causes in quibus non licet nobis aut alicui eorum juxta Sacrorum canonum Instituta quomodolibet personaliter interesse 'T was not so much because 't was in Parliament as because matter of Blood was in question And indeed the Canons mentioning Judicia Sanguinis that is Ordinary Judgements such as were agitated in the Kings Ordinary Court of Justice and the constitution of Clarendon referring only to that Court it appears that these Constitutions were received in Parliament in the Reign of Edw. the first When the King ty'd up his hands from giving Clergy-men Power even so much as by his special Commissions to sit upon the tryals of such causes We for the Utility of our Realm and for the more assured conservation of our peace have provided and ordained that Justices assigned to take Assizes in every County where they do take as they be appointed Assizes incontinent after the Assizes taken in the Shires shall remain both together if they be Lay. And if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Gaoles of the Shires Hereby it appears that if one of the Judges were a Clergy-man he was not so much as to sit with the other upon the delivery of the Gaol that is the tryal of capital Causes but another Lay-man should be commission'd for that purpose And agreeable to this we find in the Records of the Tower that when two have been Commissioned as Judges for the same Circuit whereof one has been a Clergy-man the other Lay the Clergy-man has had only Common-Pleas in his Commission the other both Common-Pleas and Pleas of the Crown nor is it material that some Rolls may be found out purporting as if Pleas had been held before two whereof one hapned to be a Clerk for it is to be taken reddendo singula singulis 2. This were enough to settle the 2d point viz. of what force such prohibition as I have shewn is at this day but I take leave to offer farther what as I conceive may give yet clearer satisfaction which is that the difference of an Ecclesiastical Synod from a Temporal Great Council was not taken from the persons present in either but the matters of which they treated and the parties which managed there according to the different matters if Ecclesiastical Affairs 't was a Synod if temporal it had some other name as Commune Concilium Regni Angliae or the like to distinguish it by The great Jewel hath long since given Authority to this Assertion about Ecclesiastical Synods which he calls concilia Episcopalia Ab Episcopis nomen concilia invenisse fateor eoque dicta fuisse Episcopalia quod Episcoporum judicio prudentiâ omnia constituerentur Sed tune idcirco concilia haec nihil ad principem attinuisse colliges As the Ecclesiastical Laws were supposed to lay a more immediate Obligation upon the conscience and were for the most part enforc't by Ecclesiastical censures they were call'd Canons or Rules not having that outward coertion and penalties annext which others had but yet they were no less Laws The Statute of Henry the 8th which provides That no Canons Constitutions or Ordinance shall be made or put in Execution within this Realme by Authority of the Convocation of the Clergy does not in the least Abrogate or Condemn those which were made by the Authority of the King the Clergy and the Laity As I will not say all Ecclesiastical constitutions were from the time of William 1. to the above-mentioned Synod at Westminster it is enough if that alone were so And then if that be not repugnant to some Law since made I conceive it is still in force having had full Legal sanction For the clearing this 't will be necessary to shew something of the nature of the Ecclesiastical Councils according to the Modus establisht anciently in Engl. I must confess that several Historians when they mention concilium totius Angliae speaking of an Ecclesiastical Council add frequently Episcoporum viz. Abbatum nec non multarum religiosi ordinis personarum or to that effect But Bishop Jewel has well Interpreted such Expressions and therefore we need not wonder when we find another say Lanfrancus Cant. Arch. totius Angliae Primas diversa in diversis locis Angliae celebravit concilia Though to be sure the King were sometimes jubens praesens as at the Council at Winchester But it appears even by their own modus tenendi synodos in Angliâ primaevis temporibus which I take it was the same that was agreed on in Lanfranc's time of whom Malmsbury sayes quaesivit à senioribus Episcopis qui esset ordo sedendi in concilio Antiquo more statutus c. By their antient Modus I say it appears that the Laity were to be present in their Ecclesiastical Councils for when it mentions the Clergy in order it adds Exinde introducantur Laici bonae conversationis that is probi homines vel qui electione conjugali interesse meruerint every Lay-man of good conversation probus homo or
Justiciarios Capitales qui proprias causas Regis terminant aliorum omnium per querelam vel per privileginm sive libertatem But as the Curia Regis was held sometimes of the Tenants and Officers only sometimes of the whole Kingdom when matters having no relation to Tenure or ordinary Judicature were in question hence has arose the mistake of some Learned Authors in taking the Curia Regis to be nothing but the Court of the King's Tenants of others that 't was meant only of the Great Council of the Nation Whereas we may trace their frequent distinctions from the Conquest downwards very apparently and very often their union It is agreed on all hands that the ordinary Curia was held thrice a year at Christmass Easter and Whitsontide and in the time of William the First the places were as certain on Christmass at Glocester on Easter at Winchester on Whitsontide at Westminster while they were held at the accustomed places there was no need of any Summons they that were to come ratione Tenurae might well come de More afterwards they removed from place to place the King made the Court where ever he was pleased to hold it and indeed when ever but then it could not be the Curia de more if it were at a different time or place then there was need of Summons if there were summoned at any time more than the Ordinary Members of the Curia if this was on the day of the Curia there was an Union of the Great Council and the Curia if on a different day there was a Great Council by its self yet the Members of the Curia were a part thereof Not to anticipate what will appear from the Presidents which I shall produce to make good this my Assertion I shall make my Observations upon them in order About the first year of the Reign of William the First as Mr. Selden supposes was held the Council at Pinnedene to determine the difference between Odo Bishop of Baieux Earl of Kent and Archbishop Lanfranc if this were a Curia de More then 't is evident that more than Tenants in Chief nay all Proprietors of Lands assembled then of course even at the Curia for the probi homines of several Counties were there but it appears that it was upon the King's Summons to all the Freeholders of Kent and of some adjacent Counties Praecepit Rex quatenus adunatis primoribus probis viris non solum de comitatu Cantiae sed de aliis comitatibus Angliae querelae Lanfranci in medium ducerentur examinarentur determinarentur Disposito itaque apud Pinnedene Principum conventu Godfridus Episcopus Constantiensis vir eâ tempestate praedives in Angliâ vice Regis Lanfranco justitiam de suis querelis strenuissime facere jussus fecit Here all the probi homines are by variation of the phrase conventus Principum a Bishop was President and pronounced the Judgment but it was as 't is said afterwards Ex communi omnium astipulatione judicio this Judgment was afterwards revoked in another Council which to be sure must have been as large as the other else the Lawyers who were there could never have made any colour of an Argument for the revocation Item alio tempore idem Odo permittente Rege placitum instituit contra saepe fatam Ecclesiam Tutorem ejus patrem Lanfranc illius omnes quos peritiores legum usuum Anglici Regni noverat gnarus adduxit Cum igitur ad ventilationem causarum ventum esset omnes qui tuendis Ecclesiae causis quâque convenerunt in primo congressu ita convicti sunt ut in quo eas tuerentur simul amitterent 'T is observable that there was a legal tryal and the cause went on that side where the Law seemed to be but indeed afterwards Lanfranc coming possibly upon producing some Evidences not appearing before the first Judgment was affirmed Here matter of ordinary Justice was determined before more than the ordinary Curia This looks very like a General Council of the whole Nation to be sure 't was more than a Curia of the King's Tenants and Officers and is more than a County Court Yet in the nature of a County Court it being several Counties united and so was adunatio conciliorum though not of the Council of the whole Nation An Ancient MS. makes this Chiefly a Court of the County of Kent Praecepit Rex Comitatum totum absque mora considere homines Comitatus omnes francigenas praecipuè Angl. in antiquis legibus consuetudinibus peritos in unum convenire But then it adds alii aliorum Comitatum homines and so confirms what Eadmerus says The nature of these Courts is easily to be explained by Writs which we find from William the First for such Tryals as this at Pinnedene Willelmus Anglorum Rex omnibus fidelibus suis Vicecomitibus in quorum Vicecomitatibus abbatia de Heli terras habet salutem Praecipio Abbatia de Heli habeat omnes consuetudines suas c. has inquam habeat sicut habuit die qua Rex Edwardus fuit vivus mortuus sicut meâ jussione dirationatae sunt apud Keneteford per plures scyras ante meos Barones viz. Gaulfridum Constansiensem Episcopum Balwinum Abbatem Petrum de Valonnus Picotum Vicecomitem Tehehen de Heliom Hugonem de Hosden Gocelinum de Norwicum plures alios Teste Rogero Bigot Willielmus Rex Anglorum Lanfranco Archiep. Rogero Comiti Moritonio Gauffrido Constantiensi Episcopo salutem Mando vobis praecipio ut iterum faciatis congregari omnes scyras quae interfuerunt placito habito de terris Ecclesiae de Hely antequam mea conjux in Normaniam novissimè veniret Cum quibus etiam sint de Baronibus meis qui competenter adesse poterunt praedicto placito interfuerunt et qui terras ejusdem Ecclesiae tenent Quibus in unum congregatis eligantur plures de illis Anglis qui sciunt quomodo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit et quod inde dixerint ibidem jurando testentur Quo facto restituantur Ecclesiae terrae quae in dominico suo erant die obitûs Edwardi exceptis his quas homines clamabunt me sibi dedisse Illas vero literis signate quae sint et qui eas tenent Qui autem tenent Theinlandes quae proculdubio debent teneri de Ecclesiâ faciant concordiam cum Abb. quam meliorem poterint et si noluerint terrae remaneant ad Ecclesiam Hoc quoque de tenentibus socam et sacam fiat Denique praecipio ut illi homines faciant pontem de Heli qui meo praecepto et dispositione hucusque illum soliti sunt facere Willielmus Rex Anglorum Goffrido Episcopo et Rodberto et Comiti Moritonio salutem Facite simul
County that is they which were part of the County Court were comprehended under the word Milites In another Record the Milites et probi homines that is honest Freeholders are used as the same In pleno Com. tuo dicas Militibus probis hominibus Ballivae tuae c. The Milites or probi homines were under the Sheriff an Officer of their own choice as was the Law and Custom of this King's time to be sure and long after the Office of the Heretochius who had been the Ductor Militiae had been discontinued no body knows how long and 't is spoke of only as an Office that had been But the Sheriff being of the Freeholders choice not the Kings having no certain Salary nor Fee upon any account taken notice of in the eye of the Law but depending upon what the King should give out of the two thirds of the Profits of the County the tertium denarium the third part the Earl o◠Count had who will imagine that the Sheriffs as Sheriffs had any feud rais'd upon them by the King that is were to attend at his Courts or in his Wars with their Feudall Knights the posse Commitatus which was assisting to them being of quite another nature Indeed I find one Fulcherus homo Vicecomitis that is Tenant by Knights Service to which homage was incident and in that sense Miles Vicecomitis in another part Tenet Rogerus de Picoto Vicecomite de foedo Regis hanc terram tenuit Gold sub Abbate Eli potuit dare absque ejus licentiâ sine sacâ This had been freehold within the Abbots Precinct alienable without licence subject to no suit of Court and was granted to Picot then Sheriff of the County to hold of the Kings feud that is by Knights service Yet he did not hold this as Vicecomes but as Baro so 't was if any man had the County in fee But the King Summoned the Barones Vicecomites that is the Vicecomites without consideration of their capacity as Barons and their Knights 't was long after this that the word Vicecomes was any thing more than tbe name of the Office here spoken of an honorary Viscount was not then known such indeed might at their creation have had feuds rais'd upon the Lands granted along with their Honours There is this farther proof that this was more than a Council of the Kings Tenants and Officers or ordinary Court in that the Summons was immediately after the Curia and that to a place sufficiently capacious Salisbury Plain Et in hebdomada Pentecostes suum filium Henricum apud West ubi Curiam suam tenuit armis militaribus honoravit here was the proper work of the Curia the King gave Arms in his Court to the Great Men and immediate Tenants the common Freeholders received them in the County Court either at coming to Age or upon becoming free by Manumission which 't is not probable that a man would desire unless he had a freehold to live upon or that thereby those Lands which were held in Villenage became free But though one were born free yet I take it he was to recieve a formal military Honour have Arms deliver'd to him when he came to Age and in the time of Hen. 1. 't is us'd as a sign that one was not of age when he seal'd a Deed and consequently 't was not effectual because Militari baltheo nondum cinctus erat We find that when a freeman died his Heir under Age some body was to have the custody of the Arms. Siquis Arma haec habens obierit remaneat haeredi suo et si haeres de tali statu non sit quod Armis uti possit si opus fuerit ille qui eum habuerit in custodia habeat similiter custodiam Armorum c. And when he came of Age tunc ea habeat this was in Hen. 2. time and then the publick delivery of Arms to all Freemen might have been disus'd but antiently as Mr. Selden observes the taking Arms by young men from publick Authority was a kind of Knight-hood But soon after Will. the first had at his Court Knighted his Son Henry he call'd this great Assembly of Barones Vicecomites cum suis Militibus his Curia was held at Whitsontide Nec multo post mandavit ut Arch. Ep Abb. Com. Bar. Vicecomites cum suis Militibus die Kal. Aug. sibi occurrerent Saresberiae quocum venissent Milites illorum sibi fidelitatem contra omnes homines jur are coegit Here I take it Milites illorum refers to the Knights of the Sheriffs that is the Freeholders this was adunatio conciliorum a joyning together of the several Councils of the Counties where the swearing allegiance to the King was one of their Principal Works the Kings Tenants had done it of course in the Curia but methinks 't is a strange thing that it should be us'd for an Argument that this was not a great Council of the Kingdom because they were evocati◠ad fidei vinculum For satisfaction I will offer a Record of the same work done in Parliament in the time of Henry 3. Celebrato nuper Concilio apud Bristol ubi convenerunt universi Ang. Praelati tam Ep. Ab. quam Primores et multi tam Comites quam Barones qui etiam univerfaliten fidelitatem nobis publicè facientes concessis eis libertatibus liberis consuetudinibus ab eis prius postulatis ipsis approbatis c. Here the King yields them those Liberties and Free-customs which they desired and they swear Allegiance to him here was the fidei vinculum But perhaps they will say that this of W. the first was no Common Council or Parliament because it appears not that any Laws pass'd or that they were summon'd to that end For the first I think no man will say that the Assembly is less parliamentary because nothing is agreed upon in it Indeed we find that where a Parliament was dissolv'd without any Act pass'd 't is said by Judge Cook not to be a Parliament but the Inception of a Parliament that is no Session but whoever will consult the Summons to Parliament in the time of Ed. 1. 2. may satisfie himself that there were many Parliaments call'd at which there were no Laws pass'd but meerly Advice given and yet at the end thereof the Knights Citizens and Burgesses had their Writs of Expenses wherein the Kings declared that they had been called to Parliament nobiscum de diversis negotiis nos populum Regni specialiter tangentibus tractatur For the last 't is no matter whether the cause of Summons were express'd 't is enough if it were de quibusdam arduis or however else was the use of that time Besides 't is certain many Laws have pass'd in publick Councils antiently of which we have no intimation from those Historians which mention such Councils Wherever I find
Rex Magnates regni Mat. West Anglicani regni praesules Proceres Gervasius Episcopi proceres Radulphus de Diceto Praelati proceres Populus regni as another Clerus populus regni Hoveden The whole Kingdom as Dr. Stillingfleet shews us out of the Quadripartite History The body of the Realm as Sr. Roger Twisden terms it Yet I conceive that the clause so much tost to and fro without any right settlement referrs to the ordinary Curia Regis to which the Kings Tenants were bound by their tenure to come and where ordinary justice or jurisdiction in all or most causes was exercised and this gives some account why the Bishops who have been from the Normans acquisition downwards tenants in chief because of their temporalties and during vacancies the Guardians of those temporalties upon that very account have been particularly summon'd why I say they should be allowed to vote in a legislative capacity which they have as Proprietors though no tenants of the King when they proceed by way of bill of attainder and yet tenure only qualifying them for Judges in Parliament as before in the Kings ordinary Curia interesse judiciis Curiae or at least they succeeding to the jurisdiction of the Tenants in the Curia according to the constitution of Clarend that jurisdiction which they have as tenants or as succedaneous to such extends not to matters of blood It will not be proved that the coming to the Great Council where the extraordinary power justice or legislature was exercis'd was meerly because of tenure and that no body had right to be of the great Council but they that held in capite or were members of the ordinary Curia indeed when that was taken away or disus'd they that before were to do suit and service at the Curia were to perform it at the Great Court the Parliament for there was no other Court where they could and therefore in the 8th of Ed. 2. the Inhabitants of St. Albans plead that they held in Capite And as other Burroughs were to come to Parliament pro omni servitio But that the coming to the Judgements of the ordinary Curia was meerly because of tenure appears from the words of the constitution Arch. Ep. c. universi personae regni qui de Rege tenent in capite habent possessiones suas de Domino Rege sicut Baroniam c. sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus c. That is except as is there excepted these ecclesiastical tenants or Barons were to be present or interested in the Judgements together with the Kings Justices and Officers as the other Barons that is Lay-tenants in Capite It seems both Ecclesiasticks and Lay-tenants in Capite held per Baroniam yet I think caeteri Barones ought to be confin'd to them that held of the King in Chief by Knights service for many held in feodo firmâ by the payment of a certain rent or petty Serjeanty the payment of a gilt spur or the like pro omni servitio of which the Records are full who were not ordinarily to give their attendance at the Curia But tenure per Baroniam was I take it in those times no more than tenure by Knights Service in Capite This perhaps I could prove by many records I shall instance in one to the honour of a Noble Peer of this Realm now Earl late Baron of Berkley as his Ancestors have been ever since the time of Hen. 2. One of his Ancestors had the grant of the Mannor of Berkley Harness from Hen. 2. Tenendum in feodo haereditate sibi haeredibus suis per servitium Quinque Militum An office is found in Edw. the third's time upon the death of Maurice Berkley and there 't is that he held per Baroniam faciendo inde servitium Trium Militum pro omni servitio Two Knights fees having been alien'd inde upon the account of the Barony or rather the land was the Knights Service and the Knights service made the Barony as appears there being no particular words creating any honourable tenure but what resulted from serving the King with men upon his own charges the number I take it made nothing towards the nature of the tenure These tenants by Knights service the Kings Barons were obliged to be at the Kings Courts de more if at the Great Court when he should call them the chief ground was upon their ordinary attendance amongst the rest of the tenants That what relates to the Curia Regis within the Const of Clarendon was meant of the ordinary justice of the Kings Court and consequently the ordinary Court old _____ of Glocester is express Yuf a man of holi-Church hath ein lay fee Parson otherwhat he be he shall do therevore King's Service that there valth that is right ne be vorlore In plaiding and in Assize be and in judgement also But this farther appears by the summons to and proceedings at Northampton the very next year This Hoveden calls Curia Regis and Mr. Selden informs us out of an antient Author that the summons thither was only to the members of the ordinary Curia Omnes qui de Rege tenebant in Capite mandari fecit upon the Bishops withdrawing from the judging of Becket the ground of which I shall soon examin Quidam Vicecomites Barones secundae dignitatis were added 't was quidam Vicecomites some Sheriffs it could not be all because several were Majores Barones having the countys in fee but this restraint seems not to reach to the Barones secundae dignitatis suppose that it does and so comes only to the uppermost of them the Vavasores perhaps that is inferior or Mesne Lords holding Mannors of others not the King still here were more than tenants in Chief and to be sure these being said to be added were more than the members of the ordinary Curia and this Court to which they were added was only the ordinary Court of Justice If we can shew when this ordinary Court of Justice determin'd and who succeeded into the places of the ordinary members of it we may go farther to clear the matter in question than perhaps has yet been done If the Lords the great men succeeded the Court of Tenants and were let into that jurisdiction which they exercised and there is no colour of proof that Clergy-men in the Curia Regis ever voted in Capital causes but if on the other side the prohibitions running against judicia sanguinis and the constitution of Clarendon referring to the Curia Regis where the ordinary judicia sanguinis were agitated and pronounced justly they took themselves to be excluded the Curia quando de illis materiis agitur It will I think be evident that the Bishops as a part of the house of Lords answering to the Court of the Kings tenants never had any right to
free-holder in his own Person or ex electione conjugali by Joint-Election of the Clergy and Laity It would be superfluous to produce the many Authorities which shew that the Laity used to be of Council in Ecclesiastical affairs as well as the Clergy in Temporal and to give their Assent in making Canons or Laws I will instance in some very remarkable ones out of many One Eadmerus recommends with a solemn protestation En ordinem gestae rei teste conscientiae meae veritate sicut eam praesens audivi vidi in nullam partem declinando descripsi Matilda Daughter of Malcolm King of Scots marryed to Henry the first being reputed a Nun offers her self to be tryed by the Ecclesiastical Law Offert se Judicio totius Anglorum ecclesiae probaturam In another place Obtulit se vel sacramento vel alia quam magis eligerint ecclesiasticâ Lege probaturam c. At the day appointed there Assembled Episcopi Abbates Nobiles quique ac Religiosi ordinis viri the case appeared to be that she had taken upon her a Nuns habit but had never been profest whereupon Anselm having stated her case to the tota Regni nobilitas populusque minor the Nobility and Commonalty and in the name of God required them Quatenus siquis aliter de negotio illo sentiret ac sententia tulerat unde scilicet ipsam copulam secundum Legem Christianam fieri non debere posset ostendi nihil haesitans salvâ pace omnium coram proferret Here any man there had free leave to offer wherein he thought that marriage void by the Christian Law or Law of Holy Church but cunctis unà clamantibus rem justè definitam legitimè conjuncti sunt Had not this been to vindicate Anselme who it seems lay under the imputation of marrying the King contrary to the Laws of Holy Church possibly Eadmerus had never given us so full an account but he shews very particularly how those great Councils Acted that 't was in an intire Body the Assent was cunctis unà clamantibus If any thing was offered or pronounced in a Definitive Way which was generally dislik't fremitu aspernabatur as we are elsewhere told of such Assemblies If the Council was divided diversis diversae parti acclamantibus they were forc't to Adjourn or break up Thus as 't was amongst the Lacedemonians what was propounded was determined clamore non calculis We have the like Account of an Ecclesiastical Synod in the 28th of the same King Gulielmus Dorobernensis congregavit generale Concilium omnium Ep. Abb. quarumcunque religiosarum personarum cui praesedit ipse This we see was an Episcopal Council and the Bishop was President but then Confluxerant quoque illuc magnae multitudines Clericorum laicorum tam divitum quam mediocrium factus est conventus grandis inaestimabilis here was a confluence of the inferiour Clergy and the Lay-Lords and Commons and the number was beyond Account Acta sunt ibi de Negotiis Saecularibus nonnulla being all met together though upon Ecclesiastical affairs chiefly yet they had colloquium about Secular too and coming all in their own persons not by way of representation when they that were chose to come instead of the rest might receive certain Instructions according to the matter propounded for treaty beyond which they had no power it was not needful that they should know before-hand what they were to treat of but might fall upon any thing pro re natâ Quaedam quidem determinata quaedam dilata quaedam verò propter nimium aestuantis turbae tumultum ab audientiâ judicantium profligata It seems they had appointed some Judges of the Pole or rather of the noise and the Crowd was so Vast the noise so Confused that of many things they could not make any certain Judgement some things were determined by a General Acclamation and others were Prorogued to a further day Quae autem communi Episcoporum consensu in ipso concilio decreta sunt Statuta sicut illic publicè recitata sunt suscepta in hoc opere placuit annotare c. Here Ecclesiastical Matters were first debated and settled amongst the Bishops then they were publickly rehearsed and either rejected or suscepta receiv'd by the whole Assembly of Clergy and laity but this was not enough to give them the force of a Law they must have the stamp of Royal Authority to be Currant Rex igitur cum inter haec Londoniae moraretur auditis concilii gestis consensum praebuit confirmavit statuta Concilii à Guilielm Cant. Arch. Rom. Eccles Legati apud Westm Celebrati At this time it seems the King was not in the Council but the Canons though drawn up by the Bishops promulgated before and assented to by the Body of the Realm yet had no force till Authenticated by the head of the Church and State Gervase of Dover is little less particular in the Account of the Ecclesiastical Synod in his time wherein the Canons or Constitution declaring it unlawful for Clergy-Men Agitare Judicia Sanguinis was embodyed into the Laws of the Land Ricardus vero Cant. Arch. totius Angliae Primas Apostolicae Sedis Legatus convocato clero Angliae celebravit concilium in ecclesiâ Beati Petri ad Westm 15. Kal. Junii Dominicâ ante Ascensionem Dom. afficerunt in hoc concilio omnes suffraganei Cantuar. Eccles praeter Vigorniens qui diem clauserat extremum In hoc concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula Ad Dextram Primatis sedit Episcopus Londinensis quia inter Episcopos Cantuar. Ecclesiae Sussraganeos decanatus praeminet dignitate ad Sinistram sedit Episcopus Winton quia Cantoris officio praecellit caeteri tam Episcopi quam Abbates secundum primogenit consecrationis suae consederunt Ipse vero Archiepiscop Primas Legatus residens in sublimi post sermonem quem tam facundè quam disertè fecit in communi de Scripto legi fecit Statuta concilii sui sub hac forma c. Here it appears that their Councils were held by the Arch-Bishops of Cant. that the Statutes or Canons were drawn up in some private Consults of Bishops but they took their force from the Assents of the King and all the Primores Regni the Clergy and Laity of the Land and that the third Canon by me cited was a Statute This to be sure and the other Ecclesiastical Councils abovementioned were more than the Curia de more I cannot as the Author of the Grand Question does summ up the Arguments on both sides for I know not one that hath yet been offered against what I have gone upon which may be thus represented in short 1. That the Canons prohibit the judging in Capital Causes and all Preliminary Votes too 2. That these Canons were received by
the great Council of the Nation and so became incorporated into and part of the Laws of England 3. And that they running in the terms of Judicia agitare which in the common intendment is of Ordinary Justice and the Constitution of Clarendon particularly referring to the Ordinary Court of Justice except it can be shewn that Clergy-men Voted in the Ordinary Curia the Court of Tenants and Officers whilst that Court continued there is not one President against this sense of the Law If it be said they have Voted in Bills of Attainders which in effect are Judicia Sanguinis Still these are not within the ordinary Justice however if they are Judicia Sanguinis in a strict sense let them who are concerned answer the evading the sense of the Law I shall give one plain instance of a great Council and another of an Ordinary Court in this Kings Reign and hasten to the next Circa festum Sancti Pauli venit Dominus Rex usque Northampton magnum ibi celebravit concilium de statutis Regni sui coram Episcopis Comitibus Baronibus terrae coram eis per concilium Comitum Baronum Militum hominum suorum hanc subscriptam Assisam fecit c. This was more than an Ordinary Curia and there being the Barones terrae the Milites and homines sui are not to be taken for his feudal Tenents but his Liege People For his Ordinary Curia we find a clear President in the Glossary of that great Antiquary Sir Henry Spelman who if he had lived to finish the second part would certainly have given a compleat Body of Antiquity We find in him the form of a fine levy'd in the Ordinary Curia Haec est finalis conventio facta in curia Domini Regis apud Clarendum anno 33. Regni Regis Henrici Secundi coram Domino Rege Joh. filio ejus c. aliis Baronibus fidelibus qui tunc ibi praesentes erant c. Richard the first was spirited to Jerusalem and therefore we must not expect many instances from him of the one sort or t'other but I am sure the Ecclesiastical Council at Pipewell in Northamptonshire could not be the Curia de more Sir Hen. Spelman calls it Concilium Pambritanicum and Bromton tells us in general who were at it amongst others there were all the Abbots and Priors of the Kingdome but it is very manifest that they were not all Tenants in chief many holding in purâ perpetuâ eleemosynâ and others of temporal Lords as appears by the Statute of Carlisle 34 Ed. 1. and therefore this was not a Court of the Kings Tenants and Officers only But then in November following he assembled a full Parliament at London Rex congregatis Episcopis Comitibus Baronibus Regni sui Parliamentum habuit tractatum This was manifestly more than the Curia Regis A great Court was held the next year at Bury in Normandy Ricardus Rex Angliae Festum nativitatis Domini quod secunda feria illo anno evenit in Normanniâ apud Burium cum primatibus terrae illius celebravit It seems he had held another Court in England for this was the second Court but the great Council at London was not of either of the Feast days But let us see whether this distinction is observable in the reign of that Prince upon whose Charter our dispute is He was crowned in the presence of a larger representative than the Interpreters of his Charter have put upon us A populo terrae susceptus est King John in one of his Charters says he came to the Crown jure hereditario mediante tam Cleri quam populi unanimi consensu favore Congregatis Arch. Ep. Comitibus Baronibus atque aliis omnibus This explains who are meant by the Magnates Regni which assembled at London in the second of his reign which the Historian not having mentioned any feast day or saying barely that the King held his Court is to be taken for the Great Council But the Records give further light they shew us that there the Queen was Crown'd de communi assensu concordi Voluntate Arch. Episcoporum Comitum Baronum Cleri populi totius regni nor is it a wonder that the Queen being a Foreigner had such a formal consent of the people to confirm her Queen for there had been at least the pretence of a law against any King of England's marrying a foreigner without the consent of the people and therefore Harold pleaded against William the First when he urg'd his oath for placing the Crown upon William's head and marrying William's daughter that he could not do either Inconsultis Principibus or absque generali Senatus populi conventu edicto as another Author explains the Council the consent of which Harold pleaded to be necessary From London King John issues out his summons to William King of Scots to attend him at Lincoln which summons he was obliged to obey as one of his Tenants in Chief but thither came more than Tenants in Chief nor was it the place or time for the Curia de more and therefore the Curia and General Council was united the King of Scots coming as attendant upon the Curia Convenerunt interea ad colloquium apud Lincolniam Rex Anglorum Johannes Rex Scotorum Willielmus cum universà nobilitate tam Cleri quam populi utriusque regni Vndecimo Kalendas Decembris As under the Nobility the Senators of Scotland were comprehended all the Free-holders at that time beyond dispute 't is probable at least that our Nobility was of the same extent And for the probability of the assembling of so great a body as the proprietors of both Kingdoms must have made even then 't is observable that the meeting was without the walls for the City was not able to hold them The King of Scots did homage upon a mountain in conspectu omnis populi before all the people the united body of Free-holders of both Kingdomes In the third of his reign this King held his Curia on Christmass at Guildford and this was no more than his Military Council Multa militibus suis festiva distribuit indumenta that is in festival bounty he gave many Coats to his Souldiers And that this was no more is very evident in that the Arch-bishop of Canterbury to shew himself a Prince in the Ecclesiastical Empire set up the like Court of his Tenants and Dependants Hubertus verò Cantuariensis Arch. quasi cum Rege à pari contendens eodem modo fecit apud Cantuariam At Easter the King held his Court at Canterbury where the Arch-bishop by sumptuous entertainment of the King hop'd to atone for his former Vain-glory. On Ascension-day the King issues out his summons from Theokesbery for the holding his ordinary Court at Whitsontide following at