to Portsmouth they which were summoned to the last are specified under the Denominations of Comites Barones Omnes qui Militare Servitium ei debebant this was to have them pass the Seas with him and they that stay'd at home gave him Escuage Veniente autem die statuto multi impetratâ licentiâ dant Regi de quolibet Scuto duas Marcas Argenti Here was a Military Council and a Military Aid given they that were with him at Dover are not particularly described by Matthew Paris but he tells us Convenerunt Rex Anglorum Pandulphus cum proceribus Regni apud domum Militum Templi juxta Doveram 15. die Maii ubi idem Rex juxta quod Romae fierat sententiatum resignavit coronam suam cum Regnis Angliae c. This was Communi Consilio Baronum nostrorum as Matt. Paris and Knyghton render the Charter As Matt. Westminster ad optimum consilium Baronum nostrorum the last gives us the form of the Summons which shews who were the Commune Consilium Regni here the Proceres Regni mention'd in Matt. Paris Omnes suae ditionis Homines viz. Duces Comites Barones Milites Servientes cum equis armis So that here was a Military Summons to them that ought to come because of Services which is explained by the Summons to Dover which was to Omnes qui militare servitium ei debebant if he thought all were bound to that Service and summoned all still the Parliaments Judgment satisfies us either that the rest were not obliged and therefore came not or if they came as they often did in Hen. 3. time upon the like summons as appears by many Records of that Age that the King's Tenants only assented to the Resignation Either way it resolves into this that a Council of the King's Tenants was not a Council that could lay any Obligation upon or pretend to a Representation of the whole Kingdom Indeed I meet with a MS. wrote I suppose in the time of Hen. 6. above two hundred years past the Author of which being induced by all the Records or Histories which had then appeared to him to believe that nothing could be of Universal Obligation even in King John's time but what was assented to as universally as Laws were when he wrote gives us King John's Charter of Resignation in a very full and complete form as if it had been Per consilium assensum nostrorum Procerum Arch. Ep. Ab. Prior. Comitat. Baronum Militum Liberorum hominum omnium fidelium nostrorum Whereby if his Authority could stand in competition with the Great Councils he would remove the Objection that had been long before made which was that this Resignation made in the ordinary Curia was not in a Legal Representative of the Kingdom It seems that both the Parliament and this Author were then satisfied that the King 's Feudal Peers or Tenants in Chief could not make a Commune Consilium Regni as a full Parliament in King John's time Besides it is worthy of consideration that if none but Tenants in Capite were of the Common Council of the Kingdom at this time then all the Abbots Priors and other Dignified Clergy who held not of the King in Chief and yet were very numerous together with the whole body of the inferiour Clergy were entirely excluded from and never admitted to this Common Council any more than the rest of the Layty from the time of William the First to the forty ninth of Henry the Third This I conceive is enough in the Negative that the King's Tenants could not within the meaning of this Charter make the Common or General Council of the Nation If it be said that they made the Common or ordinary Council for matters of Tenure or ordinary Justice I shall not oppose it in which sense they might be said to be a Commune Consilium Regni but that sense cannot be here intended because the words are Commune Consilium de auxiliis assidendis aliter quam c. de scutagiis c. So that 't is manifestly no more than a Common Council for the assessing of Aids and Escuage and if I shew that the Aids and Escuage concern'd the King's Tenants only then the Common Council of the Kingdom dwindles into a Common Council of the King's Tenants for matters concerning their Tenure If no instance can be shewn from Record or History of Auxilia or Aids raised by the Kings of England without more general consent except such as were raised of his immediate Tenants and those cases wherein the King here reserved to himself a power of charging with Aid or Escuage without consent of a Common Council concern'd his Tenants only and more than those Tenants were parties or privies to this Charter it must needs be that the other cases wherein the consent of a Common Council was requisite concerned Tenants only since only their consent is required and they only stood in need of this clause of the Charter That two of the three above mentioned viz. Aid to make the Eldest Son a Knight and to marry the Eldest Daughter were incident to Tenure appears by the Stat. West 1. Cap. 36. which ascertains the Aid which before as that declares was not reasonable and shews upon whom it lay viz. Tenants by Knights Service and Socage Tenants and there is no doubt but if the King might by Law have required Aid in those two cases he might have done it in the third for the redemption of his own body which was a service a King of England especially after the loss of Normandy which often occasioned the exposing their Sacred Persons so little stood in need of and was likely so rarely to happen that there was no need to redress by the Statute of West any grievance arising from thence Though the Statute here spoken of be only in the affirmative what Tenants by these Services shall pay Yet this has been taken to be pregnant with a Negative as to all others not mentioned So 11 Hen. 4. fol. 32. Nul grand sergeanty ne nul auter tenure mes seulement ceux queux teigne in Chevalry en Socage ne paieront Aid a file marrier pour ceo Stat. de West 1. cap. 36. voet que ceux deux tenures serroint charges ne parle de auters tenures that is none but Tenants by Knights Service and Socage are liable to these Auxilia But over and above these incidents whether with consent of Tenants or advice of other Council or meerly of their arbitrary motion Kings used to raise money upon their Tenants and these were called Auxilia which is the word used in this Charter of King John the leavy upon Tenants by Knights Service was called Escuage because of their Servitium Scuti Service of the Shield that upon Tenants of their Demesns in Common Socage Tallage which is a word that might be of a large extent as it signifies a cutting
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
and confirmations of the antient laws and free customes as Princes either to obtain or assure the Crown to them swore solemnly inviolably to observe and keep If sometimes the marks of distinction between the Curia Regis and the Great Council are not clearly apparent in that the Curia only might be summon'd ad colloquium and in that sense might be styl'd Parliamentum though not Generale Parliamentum and the Generale Parliamentum might be as indeed it alwayes was Curia Regis though not the Curia de more Yet the certain difference is upon particular instances where the full circumstances are set down alwayes to be known As the ordinary Curia consisted of the Kings Tenants and Officers and there appears no grievance worth publick notice to have lain on the last nor on the first as to their attendance at the Wars or as a Court of Justice the remedy was properly apply'd by King John's Charter to that wherein they were uneasie which was the assembling about the matters relating ad servitia to their services without convenient notice for time or for the occasion so that they might think it was only for matters of ordinary justice which might go on well enough without them when it was really to charge them in their properties by such as should appear by design and contrivance which was a great mischief Wherefore for this the redress was 1. That they should have forty dayes notice 2. That the time place and occasion of meeting should be ascertained And then they that were there were justly concluded by the rest and had no reason to complain of the charge Thus I conceive I have given a rational account of this Charter and I question whether upon other grounds any man can reconcile it with the Records and Histories both before and since the Charter till the 49 of Hen. 3. when 't is supposed that more than Tenants in Chief which compos'd the Common Council here mentioned were let into the Great or Common Council of the Kingdom If they cannot I conceive they must take my sense For this Charter was either declarative of the law as 't was before or introductive of a new law If the first then it must be interpreted by the Records and Histories both before and since till a time of change can be assign'd with some colour If introductive of a new law then we must see what interpretation practice has put upon it not that the sense of a law is alwayes to be interpreted by practice because then we should think especially upon the several Statutes against Provisors which were rarely executed according to the letter that we could not judge of the sense of former laws by the plain words But if the words will any way admit of a double sense that sense is alwayes to be taken which agrees with constant practice especially if the sense inclines most towards the practice I have at large shewn the evident proofs that to the Great Council of the Nation there us'd to come more than the King's Tenants in Chief and consequently this very Charter confirming free customes of every particular the place or of the inhabitants of those places According to this Charter the Common Council of the Nation by law consisted of more than the King's Tenants in Chief and that the Law was thus there is a very strong proof which turns upon them who suppose that King John's Charter gives us the full form of the Great Council and that none but the King's Tenants in Capite made the Common Council or Parliament of the Kingdom till 49 H. 3. In the thirty ninth year of H. 3. several years after he had granted and confirmed that famous Charter which alone obtained the addition of Great so that the Magna Charta or Grand Charter of William the first Hen. the first King Stephen Hen. the second and King John all lost their names and were swallowed up in that the Baronagium or omnes fere Angliae Magnates refused to give a Royal Aid demanded of them the ground of their refusal is very remarkable Quod omnes tunc temporis non fuerunt juxta tenorem magnae Cartae suae vocati This some would render and call King John's Charter and that the complaint was that the Peers had not their particular Summons according to the tenour of that Charter Were it so 't would prove nothing for them that urge it because it does not appear but that the aid demanded might have been Escuage or Taillage or both which lay upon the King's Tenants only such a Common Council as that Charter I conceive establishes But it is Cartae suae not Cartae Regis Johannis patris Regis nunc 't is the then King Henry the third's Charter no man will say that 't was the Barons Charter and besides it was the Great Charter and no other Charter then maintained that Epithete But what puts this out of dispute is that though H. 3.'s Charter was comprehensive of all the fundamentals of the Government and was so many times confirmed and explained where it was thought needful yet there is not one clause referring to the Great Council of the Nation but what leaves to every particular place and the Inhabitants thereof all ancient Customes and Liberties so that unless it be proved that such a Commune concilium Regni as is in King John's Charter us'd to compose the Great Council exclusive of all others excepting what is implyed in the general Salvo at the end they must needs have referred themselves to the ninth Chapter of Henry the Third's Charter which indeed is but a revival of the law affirmed in King John's Whereby the City of London all Cities Burroughs Vills Townships or Parishes the Barons of the Cinque Ports and all other Ports were to enjoy all their liberties and free customes That by Villae is meant Parishes or Townships I think may appear from Doomsday book where Villa is taken for the next Division under an Hundred Hic subscribitur inquisitio terrarum quo modo Barones Regis inquirunt viz. per sacramentum Vicecomitis scirae omnium Baronum eorum Francigenarum totius Centuriae presbyteri Praepositi vj. Villani uniuscujusque Villae Here are the Sheriff the Great Barons and Clergy-men and Headboroughs within every Hundred and six Inhabitants of every Villa Parish or Township then follows an account of the several Lands and Tenures by Hundreds and Villae within those Hundreds Now according to the ninth chapter of Magna Charta custome is to be the Legal Interpreter what was the Great or Common Council of the Nation and as the whole Nation is made up of Cities Burroughs and Parishes or Townships they being the integral parts of every County all the Counties of England were to be summon'd according to their free customes And methinks the right of the Counties for their coming to the Great Council and its being preserved under 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
fond of the conjecture of their being the full Representative Body of the Nation would have it Et ad habendum Commune Consilium Regni de auxiliis assidendis aliter quam in Tribus casibus praedictis de Scutagiis assidendis submoneri faciemus Arch. Ep. Ab. Majores Barones Regni singillatim per literas nostras Et praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in capite tenent de nobis ad certum diem scilicet ad terminum Quadragint dierum ad minus ad certum locum in omnibus litteris submonitionis causam submonitionis illius exponemus sic factâ submonitione negotium procedat ad diem assignatum secundum consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint Here was I grant the form of a Common Council of the Kingdom to the purposes here named which are for Aid and Escuage The Aid I say and shall show was from those Tenants which held of the King in Comon Socage such as held Geldable or talliable Lands the Escuage concern'd the Tenants by Knights Service but both concern'd only the King's Tenants in chief which appears in the very confining the Summons to the Majores Barones Regni and others which held of the King in Capite Whereas 1 there were Majores Barones who held not by any Feudal Tenure that were not oblig'd to attend at the Kings ordinary Courts and they with them that were under their Jurisdictions had their Common Councils apart though all might meet at General Councils So that what was a Common Council of the Kingdom to this purpose was not so indefinitely to all 2. There were others who were oblig'd or had right to be of the Common Council of the Kingdom though not upon the accounts mentioned in this Charter 1. The Norman Prince to the encouragement of those great men that adventured for his glory made some of them as little Kings and gave them the Regal Government of several Counties in which they with the great men thereof and the liberè Tenentes Freeholders made Laws for the benefit of their Inheritances and the maintaining the peace and that of Chester in particular was given to Hugh Lupus Tenendum sibi Haered ita verè ad gladium sicut ipse Rex tenebat Angliam ad coronam So that he wanted nothing but a Crown to make him King In a Charter of Count Hugh's of the Foundation of the Monastery of St. Werburg he says Ego Comes Hugo mei Barones confirmavimus And one of his Successors grants to his Barons Quod unusquisque eorum Curiam suam habeat liberam de omnibus placitis ad gladium meum pertinentibus And at the Coronation of H. 3. which was after this Charter Earl John another of William's Successors carried St. Edward's Sword before the King as Matthew Paris tells us for a Sign that he had of right a very extraordinary power Comite Cestriae gladium Sancti Edwardi qui Curtein dicitur ante Regem bajulante in signum quod Comes est Palatinus Regem si oberret habeat de jure potestatem cohibendi c. Though this was the chief Count Palatine yet others had their separate Councils where they made Laws William Fitz-Osborn was made Earl of Hereford under William the First of whom William of Malmsbury says Manet in hunc diem in Comitatu ejus apud Herefordum legunm quas statuit inconcussa firmitas ut nullâ—s Miles pro qualicunque commisso plus septem solidis cum in aliis Provinciis ob parvam occasi inculam in transgressione praecepti herilis Viginti vel Viginti Quinque pendantur Of the same nature are Examples in the Constitutions of the old Earls of Cornwal and the like To return to the County Palatine of Chester its Count was not Tent. in Capite with the restrictions above taken viz. Subject to the Feudal Law and obliged to attend once at the Courts as other Tenants and yet at the general Councils he was present Therefore this Council mention'd in King John's Charter where none but Tenants in Capite obliged to the ordinary Incidents of such Tenure were was no general Council of the whole Kingdom as our Modern Authors would have though it were for the matters of ordinary Tenure all that were concern'd being at it In the Year 1232. King Hen. 3. held his Curia or Court at Winchester at Christmas which was one of the Court days or rather times of meeting for it often held several days and therefore when that at Tewksbury in King Johns reign held but a day it is specially taken notice of Soon after King Henry's Christmas Court he Summons all the Magnates of England ad Colloquium when they meet because he was greatly in debt by reason of his Wars he demands Auxilium ab omnibus generaliter Quo audito Comes Cestriae Ranulphus pro Magnatibus Regni loquens respondit quod Comites Barones ac Milites qui de eo tenebant in Capite cum ipso erant corporaliter praesentes pecuniam suam ita inaniter effuderunt quod inde pauperes omnes recesserunt unde Regi de jure auxilium non debebant et sic petitâ licentiâ omnes recesserunt Here was the Earl of Chester this being a Summons to a General Assembly but when the King asked money for his expences in the Wars he tells him in the Name of all the Laity that those which held of him in Capite which is as much as to say he was none of them served him in their Persons and at their own charge therefore they beg'd leave to be gone if the King had no other business with them for no aid was due So that it seems they look'd upon Auxilium to be something in lieu of the service which the Kings Tenant was to perform That this concern'd the Kings Tenants in Capite by K t s service and no others except the inferior talliable Tenants they that were then assembled being the Great Council of the Kingdom took upon them to Umpire between the King and his Tenants and to tell him that he had no pretence for aid from them for they had perform'd their services due If only Tenants in Chief by Knights service are here intended by Tenants in Capite they only most commonly attending the King in Person though sometimes all Tenants whatever were required to attend and so in King John's Charter the Summons be taken to be only of such Tenants in Chief then the aid there is meant only of such as comes from them but that takes not in all that are within the meaning of King John's Charter it adding simili modo fiat de Civit. Lond. which paid a Socage Aid as I shall shew But for Chester even at those times when aids were granted by
their consent was required things were carried by the Majority of voyces amongst them that were present upon his Summons which sometimes were very few as when he held his Court at Westminster in the fifteenth of his Reign on Christmass the chief time 't was cum pauco admodum Militum Comitatu there arose a very great inconvenience and a few Tenants called together at a time when the rest could not attend as in Harvest or the like might ruine the rest therefore this seperate Court of Tenants is wholly taken away in the Reign of Edward the First and he promises that no Tallage or Aid without any reservation should be leavied for the future without the consent of a full settled Parliament not that it was incumbent upon all that came to Parliament to pay either Tallage or Escuage but as they were the Great Council of the Nation they should advise him when or in what proportion to talliate his Demeasns or lay Escuage upon his Tenants by Knights Service And when the King's Tenants paid Escuage by Authority of Parliament the Tenants by Knights Service of inferiour Lords were obliged to pay to their Lords Lit. Sect. 100. the Statute is thus Nullum tallagium vel auxilium per nos vel haeredes nostros in Regno nostro ponatur seu levetur sine voluntate assensu Arch. Ep. Comitum Baronum Militum Burgensium aliorum liberoum hominum de Regno nostro Pursuant to this the very same year is a Record of a Summons for a Parliament to consider of an Aid to make his Eldest Son Knight for which before he need not have consulted his Parliament nor the Council of the Tenants de jure Coronae nostrae in hujusmodi casu auxilium fieri nobis debet says the Record and yet he had tied up his hands from raising it without consent of Parliament However King John had in some measure redressed their grievance giving them assurance that there should always be the general consent of Tenants for what was not payable of right and custom without any consent of theirs and for the assessing those sums to which consent was made necessary there should be a convenient notice that none might complain of the injustice of the charge But all these things so manifestly relate to Tenure both the cases excepted and the cases provided for that no other sense can be tolerable for where the King reserves three incidents to Tenure and the particulars within the provision are appendant to Tenure and none but Tenants are mentioned shall we believe that something Forreign is intended by the very same words though we may well believe that all Aids whatever were intended by the Statute of Edw. 1. because the consent of all People Tenants and others is required Thus far I think I am warranted by very good Authorities I take leave to observe farther that it should seem that before this Charter the King might have charged his geldable or talliable Lands that is those Lands which were held of his Demeasn in Socage at his own discretion but could not charge them that held by Knights Service without their consent and so this part take it barely to the consenting is for the advantage and relief of the Socage Tenants only The Charter of Henry the First which exempts the King's Tenants by Knights Service ab omnibus geldis that is tribute or forced payments beyond ordinary Services leaves the King a Power of charging his other Tenants by meaner Services though not those which held by Serjeanty pro omni servitio Militibus qui per loricas terras suas deserviunt terras dominicarum carucarum suarum quietas ab omnibus geldis ab omni opere proprio dono meo concedo ut sicut tam magno gravamine alleviati sunt ita equis armis se bene instruant ut apti sint parati ad servitium suum ad defensionem Regni But then as the consent is qualified upon such notice and summons to a certain place herein the Tenants by Knights Service are eased in relation to part of their Service They were obliged to attend the King's Court either in his Wars his administration of Justice or for the assessing of Escuage upon those that made default in their Personal Services for the first there could not be any time of summons or place of attendance ascertained because occasion and necessity was to determine that for the second they could not claim it as a priviledge the administration of Justice being within the King 's Ordinary Power and his Ministers and Justices were sufficient assistants But in the last there was a grievance in which 't was proper for the King 's extraordinary Justice to relieve them Et ad habendum Commune Consilium Regni de scutagiis assidendis for the assessing of Escuage which was part of the work of the Curia they should be summoned as is therby provided Even before the Normans coming the Kings used to celebrate Feast-days with great solemnity and at those days they chose habere colloquium to consult with their People So King Eldred summoned all the Magnates of the Kingdom to meet him at London on our Lady-day In festo Nativitatis B. Mariae universi Magnates Regni per Regium Edictum summoniti c. Londoniis convenerunt ad tractandum de negotiis publicis totius Regni so King Edgar had a Great Assembly and called it Curiam suam at Christmass Cum in natali Dominico omnes Majores totius Regni mei tam Ecclesiasticae Personae quam seculares ad Curiam meam celebrandae mecum festivitatis gratiâ convenissent coram totâ Curiâ meâ corroboravi That the Curia Regis then consisted not of the King's Tenants only I could shew more particularly by a discourse of the Feudal Law and of what prevalence it was here before the Normans time But I think there is enough to this purpose here from one Piece of Antiquity which shews what in Ancient time made a Churl or Pesant become a Theyn or Noble and that so Anciently that in a Saxon MS. supposed to be wrote in the Saxon time it is spoke of as antiquated That was five hides of his own Land a Church and a Kitchin a Bell-house and a Burrough-gate with a Seat and any distinct Office in the Kings Court This Churle is in an Ancient MS. cited by Mr. Selden called Villanus so that if a man were not Free-born if he could make such an acquisition he became ipso facto a Thane a Free-man as they were often used the one for the other which I think is easily to be collected from several places in Doomsday Book and as at that time such circumstances with a place in the King's Court made a Thane or Free-man so a Thane or Freeman had a place in the Great Court as we see Edgar's Curia had all the Majores totius Regni without any qualification
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
any publick Act of recognizing a Kings Title of justice or of Elections of Persons to any Office I shall not scruple to call such an Assembly a Council and if it it be General a Great or Common Council of the Kingdom And Lanfranc I conceive was in this Kings Reign chose to be Metropolitan of all England in such a Council 't was indeed in Curiâ Regis as Gervacius and the Author of Antiquitates Britannicae shew but not the Ordinary Curia for 't was on our Lady-Day which was not the time of such Curia and the Clerus and Populus Angliae more than the Kings Tenants and Officers there confirm'd the choice of the Seniores ejusdem Ecclesiae that is of Canterbury In the fourth of this King the controversie between the Archbishop of York and the Bishop of Worcester was determined at Petreda before the King Archbishop Lanfranc the Bishops Abbots Earles et Primatibus totius Angliae this Mr. Selden rightly calls a Parliament which is easily to be gathered from the large and comprehensive Signification of Primates That General Summons the same year to have an account of the Laws looks as if it were to a Parliament to which a representation of twelve for every Country was agreed on but appears not to have been specially directed be that as it will there was no need of a full representative or meeting in an entire Body because it was not to lay any new obligation upon them but was an Enquest of the several Counties to present their old Laws But when he seemed inclined to make the Customs of some few Counties the Rule to all the rest Ad preces communitatis Anglorum he left to every County its old Customs In the Seventeenth of this King Convocavit Rex multitudinem Nobilium Angliae the multitude of the Nobles of England says Gervace of Dover this was about Ecclesiastical Affairs Concerning the bringing regular Monks into Monasteries and an old Monk tells of the Charter or Law then agreed on Haec charta confirmata est apud Westm in concilio meo Anno Regni mei XVIII praesentibus omnibus Episcopis et Baronibus meis where Barones mei must either be meant with relation to the whole Nobility of England which were all the King's men though not his Feudal especially immediate Tenants before whom the Test of Charters used to be as in Henry the Third's time the Earls only subscribed at the request of the rest or it might be only his Tenants in Chief subscribing as was usual In the Eighteenth the King impeaches his Brother Odo for his extortion this was at the Isle of Wight In Insulâ Vectâ ei obviavit Ibi in mirum congregatis in aulâ Regali Primoribus Regni this was matter of ordinary Justice and though Primores Regni are named yet it might have been only such of them as attended on his Wars or in his Court and 't is not probable that being abroad all the Primores Angliae were summoned to this In the Nineteenth of his Reign I take it that he held barely his Curia at Glocester for 't was a Military Council except that his Judges Great Officers and constant Attendants were part of it Partem exercitus sui remisit partem secum per totam hyemem retinuit et in nativitate Domini Glavorniae Curiam suā tenuit at this Court I find only some Ecclesiastical Preferments disposed of to three of his Chaplains which required no solemn Consult but his Laws passed per Commune Concilium totius Regni semel atque iterum ait se concessisse c. per Commune Concilium totius Regni and his Leges Episcopales Ecclesiastical Laws were established De Communi Consilio Arch. Episc Abb. et omnium Procerum Regni sui For William the Second whereas a great Antiquary will not say whether there were any solemn convention of the Nature of a Common or General Council in his time 't is manifest there was and we may find the Marks of distinction between his ordinary Curia Great Council or Parliament He was crowned convocatis terrae magnatibus says Bromton volentibus animis Provincialium Malms that is the whole Kingdom agreeing or the Major part indeed it seems the Normans were for Duke Robert but the English were not so wasted as some imagine but that they carried it Angli tamen fideliter ei juvabant as Simeon of Durham shews and Hoveden out of him In the Second year of his Reign he held a Curia on Christmass at London but 't was more than a Curia de more for there were Justiciarii ac Principes totius Angliae In the Third Turmas optimatum accivit Guentoniae congregavit he called together the Troops or Army of Nobles Barones aloquitur inveighs against his Brother Robert and perswades them to a War ut consilium inirent quid sit agendum jussit bids them consider or advise what was to be done His dictis omnes assenssum dederunt all consented to a War The King being very ill omnes totius Regni Principes coeunt Episcopi Abbates quique Nobiles promittuntur omni populo bonae sanctae leges here the Princes and Nobles reach to omnis populus Here Anselm is named Archbishop by the King concordi voce sequitur acclamatio omnium the noyce and publick acclamation witnesses the peoples consent and this is said to be secundum totius Regni electionem or as another Author Rex Anglorum consilio rogatu Principum suorum Cleri quoque populi petition◠et electione The King being upon leaving England to settle his Affairs in Normandy Ex praecepto Regis omnes ferè Episc unà cum principibus Angl. ad Hastings convenerunt Here Anselm pressed that there might be Generale Concilium Episcoporum but went from the Curia the Great Council dissatisfied Anselm had propounded a question to be discussed in Council Utrum salvâ reverentiâ et obedientiâ sedis Apostolicae possit fidem terreno Regi servare annon Ex Regiâ sanctione fermè totius Regni Nobilitas quinto Id. Martii pro ventilatione istius causae in unum apud Rochingham coit Fit itaque conventus omnium This is called Curia but could not be the Court of Tenants and Officers only Anselm harangues the Assembly in medio Procerum et conglobatae multitudinis sedens The other Bishops are the Mouth of the Assembly and the Bishop of Durham the Prolocutor they tell him they will have him obey his Prince upon this he appeals to Rome Miles Unus a good honest Freeholder steps out of the throng de multitudine prodiens and with great devotion sets before his Holy Father the Example of Job's patience upon this the Prelate hugged himself in the opinion that the populus the Populacy were
numerositate cuncti Majores adunati and Regnum Angliae All at several times at the Curia de More At other times we have Commune Concilium Gentis Anglorum Clerus populus congregatus the same called Commune Concilium Baronum Regni Angliae Regni Nobilitas sua Sanctione adunatâ Concilium Magnum Magnum placitum apud Northamtune congregatis Omnibus Principibus Angliae that is Baronibus that is Clero Populo Though 't were a pleasure to dwell upon this King's Reign yet it is needless to insist upon further proof that his Councils consisted of more than Tenants in Capite and great Officers King Stephen was elected King a Primoribus regni cum favore Cleri Populi Clericorum Laicorum universitate ab omnibus viz. tam Presul quam Com. Baron Stephanus his et aliis modis in Regno Angliae confirmatus Episcopos et Proceres sui regni regali edicto in unum convenire praecipit cum quibus hoc Generale Conciliam celebravit This to be sure was more than the Ordinary Curia The eighth of July two years after a Council was held at Oxford which broke not up till September following this was Conventus Magnatum was not on the ordinary Court day yet perhaps was not a Great General Council It was only for matter of ordinary Justice some of the Laity had complain'd of two Potent Bishops that fortified their Castles as if they intended to rule over them by the Temporal as well as spiritual Sword and had made a Catholick Interpretation of St. Peter's ecce Duo Gladii It seems the Bishops Plea was that this was no Ecclesiastical Synod that is in the true sense not Assembled for Ecclesiastical but for Civil Matters but in their sense that they would be tryed by the Canons and Canonical Persons the Debate is put off to be determined in a General Council appointed to be at Winchester Here the Clergy set up for themselves having the Popes Legat thought themselves a body sufficiently entire without that other part of the Clerus Gods Inheritance which used to make up eventhese Assemblies with much ado they first let in the Nobility Proprietors of Land Omnes Barones in eorum communionem jamdudum recepti They had not sate four days but the Londoners-Citizens demanded to be admitted amongst them as Citizens or Traders they were no part of the Nobility 't was a disparagement for the Son of a Noble Man a Freeholder to be married to a Trader And this our constitution agreed with that of Poland where Mercator and Nobilis were alway contradistinct and there is a remarkable Clause in one of their Statutes Nobiles appellandos censemus qui licèt matre Populari patre tamen Nobili sunt procreati quorum tamen parentes ipsimet vivant vixerint ad instar aliorum Nobilium in regno ut supra non exercuerint vel exerceant eas artes actiones quas communiter cives qui in civitatibus morantur exercere solent per contrarium enim usum nobilitas ipsa in popularem plebeiam conditionem transire solet and with them the Inhabitants of Cities which were sicut Proceres sent Deputies whereas the Possessionati the Nobles came to the Great Councils in person There came to the Council above-named a Representative in the name of the whole City of London Feriâ quartâ venerunt Londinenses in Concilium introducti causam suam eatenus egerunt ut dicerent missos se a communione quam vocant Londiniarum but the Clergy carried it with an high hand and told them that it became not them who were principal men in the Kingdom and sicut Proceres as it were Nobles to favour them who forsook their Lord which I think was meant of the Pope and his Clergy to be sure they excommunicated the King and those that held with him for medling in their matters but they had much ado to quiet the City of London for the haughty Answer they gave them They that were at this Assembly came not as the King's Tenants or because of any Office in his Court. Notwithstanding all the Canonical Thunder at a great Council possibly of Lay-men only Habito post modum Concilio coram Primoribus Angliae statutum est ut omnia per Angliam Oppida Castella Munitiones quaequae in quibus secularia solent exerceri negotia Regis Baronum suorum juri cedant Whereby all the strong holds which Clergy-men had were subjected to the Dominion of the Laity whether only the King's Barons Barones Curiae suae were to be Judges in the disposal is needless to determine But Statutum est coram Primoribus Angliae This was made a Law by all the Baronage of England We have several other Councils in this King's Reign In the seventh of his Reign there is an Act of Recognizing Matilda the Empress her Title to the Crown by all but the men of Kent and 't is not improbable that they looking upon themselves as a freer People than the rest thought it was not fit for them to own any Title but meer Election Maltida Imperatrix ab omni gente Anglorum suscipitur in Dom. exceptis Kentensibus In the ninth the Proceres are Summoned per Edictum Regium to St. Albans The same year is a great Council at Northampton called Parliamentum In the seventeenth Generale Concilium convocavit at London to which were called the Bishops and all the Proceres In the ninteenth and last of his Reign all the Principes met at Oxford ad octavis Epiphaniae and soon after the Colloquium at Oxford they met at Dunstaple And he held another great Council the same year at London on Michaelmas tam pro negotio Regni quam provisione Eccles Ebor. Cum Episcopis Optimatibus terrae this was both for Ecclesiastical Civil Matters The Council of Clarendon with that part of its Constitutions which hath been much controverted of late will detain me and the Reader too long to examine the several Instances of great Councils or of ordinary Courts in this King's Reign By the examination of this possibly I may give some additional light to what I have already represented The end of this Convention was to vindicate the Crown and Kingdom of England from the usurpations of the Clergy who insisted upon Exemptions and an uncontroulable license to do ill upon pretence of the sacredness of their persons Whereas the King would allow them no other priviledges or exemptions than what his laws had given them This Council was compos'd of more than tenants in chief 't is call'd a Great and full Parliament Generale concilium the parties present are under divers denominations all coming to the same Rex Arch. Ep. Ab. Pr. Com. Bar. Proceres Regni as M. Paris
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
praefato concilio nostro ad praed term Pashae respondere possint super praed auxil pro singulis Comitat. These were properly to come in the stead of all for they were only Deputies to carry the sense of their Principals the matter was to be propounded in the County Courts before the Knights there chose aliis and the rest of the Free-holders this whole assembly was to be moved to grant a large contribution and the Knights were to make the tender of their present before the King and his Council if the County had wholly refused the Knights had no power then to grant for them so says the Record for it was to be propounded to all Ita quod the Knights might answer for an aid from the County And it seems whether the Counties chose Deputies or not or gave them not full instructions the King was not able to work upon them that met at the place and time then appointed but they broke up in great discontent Et sic cum summa indignatione tristes admodum Proceres recesserunt But if the Tenants in Chief made the Common Council of the Kingdom till 49 H. 3. and had a power to tax the rest of the Nation de Alto Basso ad meram voluntatem suam why this summons for a representative of the Counties The very next year being the 39th above-mention'd the King sollicites them for Aid They tell the King he undertook that War against France for which he demanded aid sine consilio suo Baronagii sui And when some were for complying with the Kings Demands they Answer That all were not call'd according to the Tenour Magnae Cartae suae that is of this Kings Great Charter Now whether this were because many who were exempted from Common Summons for many such there were by particular Charters had not Special summons Singulatim from the King himself or that he put a representative upon them whereas they might plead that 't was their free Custome to come themselves in person or send as many as they pleased in their names I need not determine it being enough that here were more than Tenants in Capite But a mighty Argument has been raised against Inferiour Proprietors or the Barones Milites liberè tenentes which held not of the King being part of the great or Common Council of the Nation upon such records as mention their being summon'd coram Concilio And in effect the force resolves into this they are no part of the Kings standing Council the Assistants to him and his Lords or of his Common Council of Tenants and Officers in the Curia therefore no part of the great or Common Council of the Kingdome To clear this I need offer but one Instance of many At Christmass in the 6th of Hen. the 3. he held his Curia at Oxford but 't was more than a Curia de More Tenuit curiam suam praesentibus Comitibus Baronibus Regni words of an extensive sense or Ad natale Dom. fuit apud Oxoniam ubi festa Natalitia solemniter cum suis Magnatibus celebravit We have a Record of a subsidy granted that year probably in that very Curia Coram Nobis concilio nostro praesentibus Arch. Cant. Ep. Com. Magnatibus nostris de Communi Omnium Voluntate Now many of these were members both of the standing Council and Curia too and yet were Coram Nobis Concilio nostro but the meaning of it is that this was granted either before the King and his standing Council or the King in his Curia by all these That is here was a conjunction of all Councils in one adunatis Conciliis But because here are only Com. Bar. Magnates mentioned as if here were not any but great Lords 't is to be observed and cannot be denied by any Antiquary that free-holders and they that came from the Counties as the representatives of such had the appellation of Magnates even a long while after and therefore much rather before when Lands had fewer Owners the Owners especially such as came in their own persons were Magnates In the 37 of this King in Parliamento London so Mat. Westm p. 352. Rex Angliae R. Comes Norfolc c. caeterique Magnates Angliae consented to the Excommunication of all the Violators of the great Charter Rex Praedicti Magnates that is as is explain'd by Fleta who was Judge in the 16th of Edward the First Archiepiscopi Episcopi Abbates Regni Angliae Priores Comites Barones Milites alii Magnates the Record goes on Communitas populi protestantur publicè in praesentiâ Arch. Cant. nec non Episcoporum omnium in eodem colloquio existentium In cujus rei test in posterum Veritatis testimonium tam Dominus Rex quam praed Comites ad Instantiam Magnatum populi praesentium Scripto Sigilla sua apposuerunt Here the Communitas populi were the Communitas Civitatum Burgorum for the rest were Magnates the King and some Earls subscribed at the desire of the rest Perhaps by this time they that suppose the Commune Consilium regni within King John's Charter to have been a Full Parliament or Great Council till the 49th of Henry the Third will compound for their Notion and will yield That more than such often came to Council but that 't was of courtesie and that the King 's immediate Tenants alone could charge the rest and often did For which they have two false grounds though perhaps but one within the time we are now upon yet both are worth notice 1. They take it for granted that the Lords us'd to answer for their Tenants in Benevolences out of Parliament and upon this weak and at least uncertain foundation they build the Supposition That they at other times represented them in all Great and Publick Councils 2. Which falls within the time That it should seem by Record that the immediate Tenants have charg'd others without their Consent 1. To prove that the Lords answered for their Tenants they run back as far as William the Second's Reign when his Brother Robert sent to him to borrow Ten thousand Marks of Silver proffering Normandy for Security for Repayment The Bishops Abbots and Abbesses brake in pieces the Silver and Gold Ornaments of their Churches the Earls Barons and Sheriffs suos Milites spoliaverunt that is robbed those which were under them and 't is a fine President for the Right of the thing which carries Sacrilege and Robbery in the face of it Here the Sheriffs robb'd or took away from the Freeholders that were within their Ball'ia or Balliva and the Lords took from the Tenants within theirs wherefore if the Lords could charge their Tenants the Sheriffs could the Freeholders but I would fain see one President that the Kings Tenants ever answer'd for them that were within their Ball'ia further than the Sheriffs did for those within theirs which at
ex parte Episcopi Wign ’ Com. Leicester Gloucester ac quorundam aliorum Procerum Regni nostri vocati sunt tres de singulis Comitatibus nostris quod sint coram ipsis ad Sanctum Albanum secum tractaturi super communibus negotiis regni nostri Here the Lords of the Council exceeded their Power and as if the King were a Cypher in the Government would have the Knights from the several Shires come before them the King not without reason jealous of his Honour commands That they which had been summoned to St. Albans should come to him at Windsor Nobiscum super premissis colloquium habituros Venerab Pater G. Eboracensis Arch. Angliae Primas et alii Praelati Magnates Milites liberè tenentes et omnes alii de regno nostro servitium fecerunt et auxilium ultra quā tēporibus retractis in aliis sūmonitionibus exercitus nostri facere consueverunt This the King promises should not be drawn into consequence upon an extraordinary occasion they that were not accustomed to perform Military Service did it then and they that did owe Services did more than they were oblig'd to by their Tenure all as well those that held not of the King in Chief as those which did joyn'd together and made a general charge upon the Kingdom of Subsidium et auxilium In the 48th of this King there was a right Understanding between him and his People the Record sayes Haec est forma pacis a Domino Rege et Domino Edwardo filio suo Praelatis et Proceribus omnibus et Communitate regni Angliae communiter et concorditer approbata c. Amongst other things 't was agreed Ad reformac'onem status regni Angliae That they should chuse 3 men who should have power from the King to name Nine that should be the Kings standing Council and if any of the three displeas'd the Community si videatur Communitati Prelatorum et Baronum one or more was to be plac'd in their room per consilium Communitatis Praelatorumet Baronum And the Record concludes Haec autem Ordinatio facta fuit apud London de consensu voluntate et praecepto Domini Regis necnon Praelatorum Baronum ac etiam Communitatis tunc ibi praesentium The Council so chose as aforesaid were to advise the King in hiis quae spectant ad Regimen Curiae et regni And at that time or immediately upon it Rex Statuit et ordinavit as Mr. Camden tells us whose authority I shall enforce That none of the multitude of Barons should come to Parliament but they to whom the King vouchsaf'd to send his Special Summons or were chose by the People in pursuance of the alia illa Brevia What I have already drawn from the bowels of Antiquity makes me think that Mr. Selden was arriv'd to this maturity of Judgment when he put out the first Edition of his Titles of Honour wherein he received without doubting the Testimony of the learned Clarenceulx Mr. Camden concerning the new modelling of the Great Council of England which Mr. Camden tells us he has out of an Author old enough to know the truth of his Assertion upon this authority Mr. Selden took it then pro concesso that the alteration was as is there shewn and began in the 48th of Hen. the Third and that the first Summons accordingly was the 49th which he illustrates by the like many years after in Scotland Item The King with the Consent of the hail Council generally hes Statute and Ordained That the small Baronnes and free Tennentes neid not to come to Parliaments nor General Councels swa that of ilk Shirefdome their be send chosen at the head Court of the Shirefdome twa or maa wise men after the largeness of the Shirefdome All Bishops Abbots Priors Dukes Earls Lords of Parliament and Banrets the quhilks the King will be received and summon'd to Council and Parliament be his Special Precept This I conceive is an illustration of Mr. Camden's Authority Ad summum honorem pertinet speaking of the word Baro. Ex quo Rex Henricus ex tantâ multitudine quae seditiosa et turbulenta fuit optimos quosque rescripto ad Comitia Parlamentaria evocaverit ille enim ex satis antiquo authore loquor post magnas perturbationes et enormes vexationes inter ipsum Regem et Simonem de Monte forti alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionis dirigere venirent ad Parlament ’ suum non alii nisi forte Dominus Rex alia illa brevia dirigere voluisset sed quod ille paulo ante obitum incepit Ed. 1. ejusque Successores constanter observarunt unde illi soli Regni Barones censebantur qui ejusmodi summonitionum ut vocant rescriptis ad Comitia evocaverant donec R. 2. Joannem de Beauchamp de Holt Baronem de Kiderminster diplomate dato 10. Octob. anno nostri sui 11. creaverit The substance of this is that the word Baro was applicable to the whole people the Body of Free-holders especially as assembled in Parliament till the King confer'd particular Honour upon some by his especial Writs of Summons and none other came but in pursuance of the aliae illa brevia that is the Writs for Elections in Counties Cities and Boroughs that this was begun to prevent those Tumults of which both the King and the Barons had Fatal experience That this was Enacted in due form of Law though the Form is not express'd yet 't is imply'd under the Statuit ordinavit being words of Legislation and for confirmation that it was so it has been followed ever since And that the Barons by Creation who have ever since their Creation had Right to sit as of the higher Order previous to their sitting or express Summons came not in till the 11th of Richard the Second Against this Mr. Selden whose insight into Records and MS's made him take it ill that any should escape his view has rais'd these objections 1. In all occurrences that I meet with since the Grand Charter of King John I find no mention of any interest that those other Tenants in Chief eo nomine had in Parliament who doubtless were the Persons that were excluded from it when soever such Law was made Tanti viri pace This objection comes not nigh the point it not being prov'd at least that King John's Charter gives the Form of a Parliament or General Council or of any other than a Council of the Kings Tenants for matters belonging to their Tenure and this sense Mr. Selden himself confirms when he says that he finds not that the Minores Barones in Chief or those other Tenants in Chief eo nomine had any interest in Parliament now not having any peculiar interest what need of a
particularly nam'd But for this a resolution by all the Judges of England in the Reign of Hen. the 8th is a full Authority where 'T is adjudged that the King may hold his Parliament without such Lords as come onely upon the account of their Possessions The same in effect Mr. Selden tells us in in his Notes upon Eadmerus Neque eos speaking of Barones duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est sed universos qui saltem beatiores regia munificentia c. Latifundia possidebant So that he was of opinion here that there were several who had great Estates of the immediate grant of the Crown who yet had no Seat in the House of Lords I would not be thought to assert any thing dogmatically I onely offer by way of learning some thing which perhaps will be look'd on as Paradoxes at the least I divide not my matter into Heads and Positions because I run counter to the sense of many great names and the direct opposing such in Thesi would be invidious and gain a disadvantage to the authorities I produce If any body will take the pains to shew me by authentick proofs and warrantable reasons that all or most of the Records or Histories by me cited or others not occurring to me ought to be taken in a sense contrary to what has appeared to me I shall thankfully receive and acknowledg his instructions but till then I must crave pardon if I cannot swallow or digest any Learned Modern Antiquarie's bare ipse dixit where I find the best of our Historians and a Series of Records in my Judgment diametrically opposing and contradicting their Positions and Assertions I am aware that besides the many slips of an hasty Pen and the weakness perhaps of several of the inferences which amongst some avocations may have pass'd neglected There is a material Objection against the foundation of the whole which is the general agreement of Records and Histories that till the 48th or 49th of Henry the Third all Proprietors of Land came to the Great Council without any settled exclusion when yet we many times find that the Councils were held in Churches or Halls and yet at those times 't is said that the Populus were there as if the Great Men were the standing Representative Body of the Nation and answer'd for all the People the Freeholders of the Nation To which I answer according to the modus tenendi Synodos which I may apply to the civil Councils That the probi homines or bonae conversationis came sometimes in their own Persons and when they agreed to it which was no abridgment of their personal Right they came by representation ex electione and every one was there himself virtually by his Deputy but they often met in vast Bodies and in capacious places both in the Saxon times and after William the First obtained the Imperial Crown The whole body of Proprietors were assembled at Runemed between Stanes and Windsor at the passing of King John's Charter and if we believe Matth. Westminster it was not unusual for the Kings of England long before King John's time at that very place to meet their People to treat of the Affairs of the Kingdom Maximus Tractatus habebatur inter Regem et Barones de pace Regni inter Stanes Windsoram in prato quod dicitur Runemed quod interpretatur pratum Concilii eö quod ab antiquis temporibus ibi de pace regni saepius consilia tractabantur This shews the usual places of Assembling to have been large enough for all the people which are in so many Records and Histories Printed and in Manuscript said to have been present at the Great or General Councils I shall conclude with one Instance of the Parties present at such a Council which is deliver'd with sufficient perspicuity Anselm in one of his disputes with Henry the First desires the debate may be adjourn'd till the Easter following Differantur haec si placet usqu in Pascha ut audito Episcoporum regnique Primatum consilio qui modò non assunt respondeam hinc Upon this Anselm comes to the Court at Easter Igitur in Pascha Curiam venit regni ingenuitatem praesens consulit Communi consilii vocem accepit c. Here the Council Episcoporum et Primatum to which he referr'd himself was reciprocal with the ingenuitas regni that is as Sir Henry Spelman shews us the liberi et legales homines the good honest Freeholders some of which were no better than Plebeians And therefore this authority alone especially as 't is strengthned by those others to the same purpose which I have cited absque dolo et malo ingenio evince to me That he or they who put out the Second Part of Sir Spelman's Glossary did not do right to his Memory in representing him affirming That the plebs the ingenuitas or liberi et legales homines as he himself tells us the word ingenuus has anciently been us'd are no where amongst the several Councils which he had read of mention'd to have been there from the entrance of William the First to the end of Henry the Third The words to this purpose which I conceive are put upon him are these Sine ut sodes dicam collegisse me centenas reor comitiorum edictiones tenoresque plurimorum ab ingressu Gulielmii ad excessum Henrici 3. existentium nec in tantâ multitudine de plebe uspiam reperisse aliquid Indeed notice being taken of those Councils where were Optimates et Barones totius Angliae and of that famous Assembly at Salisbury-Plain of the Barones et Vicecomites cum suis Militibus in pursuance of the Summons of William the First the positiveness of the assertion is restrain'd with a ni in his dilituerit But what doubt can be made of those words whereby they are expresly mention'd and that according to the true Sir Henry Spelman I am not yet aware of FINIS ERRATA PAge 3. l. 16. r. Tzurick for Tours p. 5. margin r. contemporaneo p. 8. l. 12. for William read Hugh p. 9. l. 9. r. Attendance p. 10. l. 7. add laici before omnes p. 12. l. 29. joyn a to part p. 17. l. 4. r. fuerat p. 25. l 6. add est de before antiquo l. 7. dele est de p. 27. marg r. Hil. for Mich. p. 35. l. 3. add è before tota p. 40. l. 22. r. illuc l. 19. r. Knight for Knights p. 45. last l. r. antequam p. 47. l. 4. dele Comma after Sheriffs l. 15. r. vias l. 19. dele s after Knight p. 53. l. 28. make a Comma after Kings title l. 29. r. election p. 60. l. 28. add is after that p. 63. l. 18. r. of for in p. 64. l. 14. put a Comma after only p. 65. l. 15. r. 't was p. 66. l. 7. put a Comma after Nobility l. 10. after Londoners make a Comma so