venire omnes illos qui terras tenent de dominico victu Ecclesiae de Heli et volo ut Ecclesia eas habeat sicut habuit die qua Edwardus Rex fuit vivus et mortuus et si aliquis dixerit quod inde de meo dono aliquid habeat Mandate in magnitudinem terrae et quomodo eam reclamat et ego secundum quod audiero aut ei inde escambitionem reddam aut aliud faciam facite etiam ut Abbas Symeon habeat omnes confuetudines quae ad Abbatiam de Heli pertinent sicut eas habebat Antecessor ejus tempore Regis Edwardi Preterea facite ut Abbas seisitus sit de illis Theinlandis quae ad Abbatiam pertinebant die quo Rex Edwardus fuit mortuus si illi qui eas habent secum concordare noluerint et ad istud placitum summonete Willielmum de Guaregnna et Richardum filium Gisleberti et Hugonem de Monteforti et Goffridum de Manna Villâ et Radulfum de Belfo et Herveum Bituricensem et Hardewinum de Escalers et alios quos Abbas vobis nominabit Upon these Writs many useful things might be observed but I will confine my self as nigh as I can to my purpose From them as interpreted by equal authority of History it appears that Wil. the first us'd to commissionate several of his Barons I will not oppose their being his great Tenants in Chief these were to preside in the Tryals of matters within ordinary Justice which were to be try'd in the several Counties where the question arose sometimes in one County sometimes in several together as the men of the several Counties that is the several Counties were united Sometimes these great Men sometimes the Sheriffs were to Summon the Parties and to take care that an Inquest of the County or Counties concern'd be impannell'd in the Counties that is by the choice of the Freeholders The Kings Commissioners were to pronounce the Judgment in the Kings Name or stead So the Bishop of Constance did right to Lanfranc 't was Judicio Baronum Regis qui placitum tenuerunt and yet ex communi omnium astipulatione judicio The Inquest upon their Oaths found the matter of Fact the Judges stated it to the people and delivered their Judgment to which the Primores probi homines assented for 't was ex communi omnium astipulatione this agrees with what Bracton says of the Laws pass'd in the Great Council of the Nation De Concilio Consensu Magnatum Reipublicae communi sponsione But it may be objected that the Kings Writ is to the Great Men to do Justice to which the Books give an answer that the Kings Writ does not change the Nature or Jurisdiction of a Court and therefore though a Writ of Right or a Justities be directed to the Sheriff yet the Suitors in the County Court are Judges And what their Jurisdiction was in the time of Wil. the first is to be gathered from what continued to the Freeholders or Suitors of the County Court of Chester even till the time of Edward the First Upon a Writ of Error to remove a Judgment out of the County Palatine of Chester into the King's Bench in a Plea of Land The Chief Justice of Chester certifies that the Judicatores et Sectatores the Suitors at the County Court clamant habere talem libertatem quod in tali casu debent omnes Barones eorum Seneschal ac Judicatores ejusdem Comitatus summoniri audituri hujusmodi processum Recordum illa antiquam sigilla sua apponant si fuerit infra tertium Comitatum per seipsos emendare Et hujusmodi libertates a tempore quo non exstat memoria usi sunt et gavisi And the Chief Justice farther certifies quòd fecit summoniri omnes Barones et Judicatores accordingly The Parties Assembled at the Council of Pinnedene were the Primores et probi viri of the Counties concern'd which answer to the Proceres et fideles Regni in the union of all the Counties in Parliament as in the 42 of Henry 3. which in another Record of the same Parliament are branch'd out into hanz hommes e prodes hommes there are the Primores et probi viri e du commun de nostre Realme that is as the Statute of the Staple has it the Prelates Dukes Earles Barons the Great Men of the Counties Grands des County's as the French and the Commons of the Cities and Borroughs The Testimony of Eadmerus concerning the Parties to the Judgment at Pinnedene confirms me in my opinion that the Summons to a Great Council as I take it in this Kings Reign mentioned by Simon of Durham and Florentius Wygorniensis which was to all the Bishops Abbots Earles Barons Sheriffs with their Knights was not to them and those only who held of them by Knights Service for more than such were Judges even for matters of ordinary Justice within the Counties but that it was to them and the Sheriffs Knights the Freeholders of the Countys who were by St. Edwards Laws oblig'd to find Arms and became Knights Milites as soon as by publick Authority they took Arms the antient form of Manumission proves this sufficiently Siquis velit servum suum liberum facere tradet eum Vicecomiti per manum dextram in pleno Comitatu et quietum illum clamare debet a jugo servitutis suae per manumissionem et ostendat ei liberas portas et vivias et tradat illi libera Arma viz. Lanceam et Gladium et deinde liber homo efficitur Thus he becomes a freeman and the Sheriffs Knights at the same time That all Freeholders had the appellation of Milites is evident by many Records and even a Statute that for the choice of Coroners which was but declaratory of the common Law as appears by several Records before that time I will instance in one Because one that had been chosen Coroner was neither a Knight or Freeman as that interprets it self nor yet discreet therefore a new choice is directed Miles non est et in servitio alieno et juvenis et insufficiens et minus discretus Here in Servitio alieno a servant is put in contradistinction to Miles that is to a Freeholder or Liber tenens Et here has the like import with Sed unless a man might have been a Knight and yet no Freeman The Freeholders of the County of Cornwall Fine to the King for leave to chuse their Sheriff 't is said in the Record Milites de Com. Cornubiae finem fecerunt Rot. fin 5º H. 3. pars 1 a. M 9. And these which are here called by the general denomination of Knights are in another Record of the same specified under these names Episcopus Comites Bar. Milites libere tenentes et omnes alii de Com. so that all the people of the
JANI ANGLORUM FACIES NOVA OR Several Monuments of Antiquity touching the Great Councils of the Kingdom and the Court of the Kings immediate Tenants and Officers from the first of William the First to the forty ninth of Henry the Third Reviv'd and and Clear'd Wherein The sense of the Common-Council of the Kingdom mentioned in King John's Charter and of the Laws Ecclesiastical or Civil concerning Clergy-men's Voting in Capital Cases is submitted to the judgement of the Learned Decipimur specie recti Hor. LONDON Printed for Thomas Basset at the George near St. Dunstan's Church in Fleet-street 1680. Jani Anglorum Facies Nova THat King John's Charter exhibits the full form of our English Great and most General Councils in those days if I may fay so is the Vulgar Error of our Learned Men and 't is that which hath given the only prejudice to the pains of the Judicious Mr. Petyt who I must fay has laid the Foundation and sure Rule of understanding the Ancient Records and Histories which mention the Great or General Councils in his distinctions between the Curia Regis and Commune or Generale Concilium Regni Barones Regis and Barones Regni and the Servitia which were paid or performed by reason of Tenure And those Common Prestations which Bracton mentions Sunt etiam quaedam Communes praestationes quae Servitia non dicuntur nec de consuetudine veniunt nisi cum necessitas intervenerit vel cum Rex venerit sicut sunt hidagia corragia carvagia alia plura de necessitate consensu Communi totius Regni Introducta Which are not called Services nor come from Custom but are only in case of necessity or when the King meets his People As Hidage Corrage and Carvage and many other things brought in by necessity and by the Common Consent of the whole Kingdom This I must observe upon the differences here taken that 't is not necessary to the maintaining a real difference to insist upon it that none of these words were ever used to signifie what is the natural signification of the other for Example Barones and Milites are sufficiently distinct in their sence and yet when but one of the words is used either of them may and often does take in the other But when Barones Milites c. are set together the Barones are a Rank of men superiour to the ordinary Milites 't is enough to prove that the differences above mentioned are rightly taken if according to the subject matter and circumstances we can clearly divide the one from the other Now let us see the words of the Charter and observe whether they are meant of all General or Common Councils for making of Laws and Voluntary Gifts to the Crown or only of such as concern'd the King's Immediate Tenants Nullum Scutagium vel Auxilium Ponam in Regno nostro nisi per Commune Consilium Regni nostri nisi ad corpus nostrum redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel Maritandam ad hoc non fiet nisi rationabile auxilium Simili modo fiat de Civitate Londinensi Et Civitas Londinensis habeat omnes antiquas Libertates Liberas consuetudines suas tam per terras quam per aquas praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portubus omnes portus habeant omnes Libertates Liberas consuetudiues suas ad habendum Commune Consilium Regni aliter quam in tribus casibus praedictis Here the London Edition of Matthew Paris and that at Tours make a period distinct from what follows and then the Sense is that except in those three Cases wherein the King might take Aid or Escuage at the Common Law without the Consent of a Common Council for all other Aids or Escuage a Common Council should be held and the City of London all Cities Burroughs Parishes or Townships that is the Villani their Inhabitants the Barons or Free-men of the Five Ports and all Ports should amongst other Free Customs enjoy their right of being of or constituting the Common Council of the Kingdom But so much is certain that if these or any besides the Tenants in Capite came before this Charter and were at the making of it their Right is preserved to them by it and is confirmed by the Charter of Hen. 3. cap. 9. Civitas Lond. habeat omnes Libertates Antiquas consuetudines suas preterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portibus emnes alii portus habeant omnes Libertates Liberas consuetudines suas And for an evidence of what was their Custom and Right as to the Great Council of the Kingdom both these Charters were made to and in the presence of all the Clergy Counts Barons and Free-men of the Kingdom King Johns as Mr. Selden tells us he conceives was made by the King and his Barones liberos homines totius Regni as other particulars were of the same time But the Record which he cites in the Margent puts it out of all doubt that the Charter was made by them all Haec est conventio inter Dominum Johannem Regem Angliae ex unâ parte Robertum Filium Walteri Marescallum Dei Sanctae Ecclesiae Angliae Ric. Com. de Clare c. alios Comites Barones liberos homines totius Regni ex alterâ parte And in another Record it is said to be Inter nos Barones liberos homines Dominii nostri So that the liberi homines of the Kingdom were present and who were at the making of the Great Charter of Hen. 3. which has been so many times confirmed it acquaints us at the end Pro hac autem donatione concessione libertatum aliarum libertatum in cartâ de libertatibus forestae Arch. Ep. Ab. Pr. Comites Barones Milites liberè tenentes omnes de Regno nostro dederunt nobis quinto-decimam partem omnium mobilum suorum The Charter here mentioned of the Forest had been granted in the Second of Hen. 3. as was the Great Charter the parties to the grant of a Subsidy are the very same Archiepiscopi Episcopi Abbates Priores Comites Barones Milites liberè tenentes omnes de Regno Not to produce here the proof of such General Assemblies from the Conquest downwards to the 49 H. 3. I may say upon what I have already shown that this interpretation of King John's Charter whereby the Tenants in Capite are divided from the rest and made a Common Council for Escuage only agrees better with the Records and Histories than the notion that they alone compos'd the whole Council of the Kingdom which can never be proved But I will take the words together even as they who are
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
particular exclusion 2. Besides we have some good Testimany of Barons being distinguish'd by holding in Chief from others that held not in Chief long before the end of Henry the Third or the time to which that ancient Author refers the Law of alteration which seems to shew that there were then Barons by Writ only as well as ancient Barons by Tenure That Testimony in Mat. Paris Rex edicto publicè proposito saith he speaking of the 29th of Henry the Third Et submonitione generaliter facto fecit notificari per totam Angliam ut quilibet Baro. tenens ex Rege in Capite haberet prompta parata Regali praecepto omnia servitia militaria quae ei debentur tam Episcopi Abbates quam laici Barones Barons holding in Capite are mention'd here as if some held not so which must be such as were Barons by Writ only Thus much he yeilds here If there were not Barons by Writ there being in those times other Barons besides Barons by Tenure Mr. Camden and his Author were in the right and the word Baro was of large extent that is reacht to every Free-holder who according to Sir Henry Spelman had that appellation However it does not follow because there were other Barons besides Barons by Tenure that they must be by Writ for what hinders but that they might have been by reason of their Possessions and the freer from Feudall Tenure so much the rather Barones as Free-men The distinction of Barones Majores and Minores I take it has been moveable sometimes all the Tenants in Chief were Majores as in Henry the Seconds time where the Barones Secundae dignitatis that is Minores are added to sit upon the Judgments with the Tenants in Chief In King John's time we find Majores Barones holding in Chief alios so that the Estates of the Great Barons being parcel'd out some that held immediately of the King were Minores Barones by reason of the smallness of their Estates But this is clear from Record That Writs of special Summons made none Barons out of Parliament whatever they did in Parliament except where there was such an unusual Clause as we find in a Writ of Summons 27 H. 6. Volumus enim vos heredes vestros masculos de corpore vestro legitimè exeuntes Barones de Vescey existere Here was a special Clause of Creation to a Barony but if the usual Writs Quatenus Writs of Summons made none Barons out of Parliament and there is not the least ground of conjecture that such Writs were devis'd in the time of Henry the Third it follows That when Henry the Third Summon'd only his own Tenants to perform their Military Services not to Parliament and these were Barones tenentes in Capite but there were other Barons omitted that these Barons must have been such by reason of their Freehold That an usual Writ or Writs of Summons made none Barons out of Parliament appears very fully in the Case of Thomas de Furnivall in the Court of Exchequer Thomas de Furnivall had been amerced tanquam Baro. He pleads in discharge of his amercement That he was no Baron nor held by Barony or part of a Barony Licet ipse Baro non sit nec terram suam per Baroniam vel partem Baroniae teneat nihilominus idem Thomas pro quibusdam defaltis in quibusdam Curiis c. In eisdem Curiis tanquam Baro amerciatus fuit Now according to Mr. Selden's Notion he ought to have pleaded that he was no Baron in that he neither held by Barony nor had receiv'd or us'd to receive special Writs of Summons to Parliament But 't is observable that the only matter put in issue by the direction of the Court was Whether he held by Barony or no Et quia Barones ante quam ulterius c. Volunt certiorari super superius suggestis Concordatum est quod inquiratur inde quod Robertus de Nottingham Rememerator hujus Scaccarii assignetur ad capiend ’ inde inquis c. Et datus dies prefato Thom. per Attornatum suum pred hic à die Pasche in unum mensem ad audiend reccipiend inde quod Cur. c. There was an Inquisition directed into the several Counties where he had Lands to know how he held them and according as his Tenure appear'd to be was he to receive Judgment upon his Plea and 't is certify'd upon the Inquisitions taken That he held not any Land per Baronium vel partem Baroniae and therefore according to the sense of the whole Court though we find not the Judgment then given non fuit Baro. And yet this man had been call'd to Thirty Parliaments before the time of his Plea and his Son as I take it was call'd to Seven in the life-time of his Father Thomas de Furnivall Sen. Summonitus fuit per breve ad Parl ’ Rot. Claus 23 Ed. 1. m. 9. dorso Rot. Claus 23 Ed. 1. m. 3. d. 24. Ed. 1. m. 7. d 25. m. 25. d. 27. m. 18. d. 28. m. 16 17. d. 28. m. 2 3. d. 30. m. 7. d. 32. m. 2. d. 33. m. 21. d. 34. m. 2. d. 35. m. 13. d. Rot. Claus 1 Ed. 2. m. 19. d. 1. m. 11. d. 1. m. 8. d. 2. m. 11. d. 3. m. 17. d. 3. m. 16. d. 5. m. 17. d. 5. m. 3. d. 6. m. 31. d. 6. m. 17. d. 6. m. 2. d. 7. m. 15. d. 8. m. 25. d. 8. m. 29. d. 9. m. 22. d. 11. m. 14. d. 11. m. 12. d. 11. m. 8. d. Thomas de Furnival Jun. Rot. Claus 12. d. 2. m. 29. d. 12. m. 11. d. 13. m. 13. d. 14. m. 23. d. 15. m. d. 16. m. 26. d. 17. m. 27. d. This Great man was no Baron in the sense of the word Baron then appropriated the several Writs of Summons had made him no Baron and yet he was a Lord of Parliament and since the King dignatus est brevia Summonitionis ad eum dirigere according to Mr. Camden he being before one of the multitude of Barons the word Baro which was applicable to all the Nobility the Free-holders in him pertinebat ad summum honorem Mr. Selden's last objection is this 3. That old Author also used by the Learned Camden speaks of Earls no otherwise than of Barons as if some like exclusion had been of any of them also than which nothing can be more advers to the known truth both of that Age and all times and even in that we have some Character of the slightness of his Authority whosoever he were This I conceive can be of no great weight for he might as well have said that Barons were never excluded before and by the same consequence not then for I know not how any man can prove that Earls had more Right than Barons in the most Honourable acceptation especially But this being then made a Law 't
for him though the Princes the heads of the Assembly were against him This Controversie is adjourned to the Curia on Whitsontide which still was no ordinary one Anselm was celebrating a Curia by himself when he should have attended at the King 's according to the adjournment but it seems he expected special Summons which he has accordingly by word of mouth no formal Writ but Messenger The King tenuit Curiam suam in ipsâ festivitate apud Windlesoram and there were Proceres et coadunata multitudo a very Solemn Convention The Authority cited by Sir Hen. Spelman says that the Clergy was not at the Council at Roch. in quo fermè totius regni nobilitas praeter Episcopos Clerum convenitur so that it would seem a President for that Parliament in the time of Edward the First taken notice of by Bishop Jewel of which he says our publick Monuments that is Records have it Haâ—ito Rex cum suis Baronibus Parliamento et Clero id est Arch. et Ep. excluso statutum est There it seems the Lords and Commons who undoubtedly came at that time without relation to Tenure are Barones sui But whether the Council at Roch. had the Clergy present or no the Bishops and Barons tell Anselm at another Great Council how much soever he thought the Assembly on his side that placitum habitum est contra se his pretences were over ruled totius regni adunatione Yet notwithstanding their sense then delivered they gave a farther day till Whitsontide so that in effect 't was Judgment nisi then indeed Anselm with a side Wind got an Advantage of the King he cunningly waves the question whether he might swear Obedience to the King and puts it only whether the Pall were to be received from the Pope or the King and carried that Point that it belonged to the singular Authority of Saint Peter This was a General Council on the Feast day Adquievit Multitudo Omnis unde cum omnes silentio pressi conticuissent Statutum est It seems till the Multitude rested satisfied the Law could not pass But two years after on Whitsontide was held no more than the Ordinary Curia Cum igitur in Pentecoste festivitatis gratiâ Regiae Curiae se presentasset peractis igitur festivioribus diebus diversorum negotiorum causae in medium duci ex more coeperunt That 't was usual when the height of the feasting was over to go to the Tryals of Causes or Matters of Ordinary Judicature In August following is held a Great Council the King being de Statu Regni acturus Then he sends out a General Summons In sequenti autem mense Augusto cum de Statu Regni acturus Rex Episcopos Abbates quosque Regni Proceres in unum praecepti sui sanctione egisset dispositis his quae adunationis illius causae fuerant c. Anselm asks leave to go to Rome but is denied it In October following there was a General Council at Winchester Wintoniae ad Regem ex condicto venimus Eadmerus was there himself The first day the Tumult from the vast multitude was so great that they could do nothing and therefore broke up the Court and adjourned to the next day Orta est igitur ex his quaedam magna tempestas diversis diversae parti acclamantibus the sense of the Assembly was that Anselm should observe the King's Laws upon which he departs the Realm in a pett 'T was pity Eadmerus went with him so that we loose the account of what passed in his absence I think however we have enough to prove that there were then no less nay greater Assemblies than what now compose our Parliaments nay the very word Parliament was not unknown in that time Parliamentum dixêre Croylandenses Caenobitae sub Tempore Willielmi Secundi For farther proof 't is observable that this King stood upon it that Malcolm King of Scots Secundum Judicium tantum Baronum suorum in Curiâ suâ Rectitudinem ei faceret That is was to do him right or answer his demands according to the Judgment of his Curia or Ordinary Court of Justice Malcolm pleads that 't was to be in the confines of both Kingdoms Secundum Judicium Primorum utriusque Regni that is according to the Judgment of a Great or General Council of both Kingdoms united and who were the Primores that constituted the Great Council of Scotland even till the 23. of James the First is evident by his Act of Alteration or recommendation of a Change which has it that the small Barrons and Fee-Tenants or Freeholders need not to come to Parliaments nor General Councils without Election which shews that till then they did And how they came here in this King's time I leave any body to think as they please sure I am here were more than Tenants in Chief There was one Council in his Reign which had no Addition to it the Author says only Celebravit Concilium and this I take it was no more than an Ordinary Curia especially it being Octabis Epiphaniae And there was a Legal Tryal by Duel and by Judgment of the Court the Party conquered had his eyes pull'd out and his stones cut off That besides the Great Council this King above mentioned held the Ordinary Curia Sive de more we have clear Authority Cum gloriosè patrio honore Curiam tenuisset ad Natale apud Glocester ad Pascha apud Winchester ad Pentecosten apud Londoniam By the foregoing Instances we may see notwithstanding Virgil's suppressing as much as in him lay the MSs. which might take from the Authority of his History how many rise up in Judgment against his Assertion in the time of King H. 1. Illud oppositè habeo dicere Reges ante haec tempora non consuevisse populi conventum consultandi causâ nisi perrarò facere adeò ut ab Henrico id institutum Jure Manâsse dici possit And it seems the great Mr. Lambert who possibly was the first that after the Ages in which the word Baronagium was used and known to express the full Great Council or Parliament received its true Notion viz. that both the Nobility and Commonalty of the Realm were meant under these words the Barons of the Realm this Great Man it seems had not met with those MSs. which since have offered their Light to the World otherwise he would not have subscribed to the foregoing opinion of Polydore Virgil however Polydore himself as far as his Authority goeth gives us to believe the frequency of such Solemn Councils from this King's time downwards This Prince was so pleased with his People and they so much at ease under his gentle Reign there was that mutual confidence in each other that 't is a question whether he ever held a Solitary Curia of Tenants and Officers only we find Tota Nobilitas cum populi
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