off from the Estate but being it was never used as an imposition with pretence of Duty but upon his Tenants and that which was raised upon Tenants by Knights Service had its proper name therefore this has generally been applied to the payments of Socage Tenants either as ordinary Services that is upon the ordinary occasions wherein 't was of course raised by the King or upon extraordinary occasions and necessities which required advice Yet as an exaction or unjust payment it has been taken in the largest sence to reach to all Tenants and others as in William the First his Emendations or Charter of Liberties the 1. Magna Charta Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeant teneant terras suas possessiones suas benè in pace liberas ab omni exactione injustâ ab omni Tallagio ita quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jure nobis facere tenentur prout statutum est eis illis à nobis concessum jure haereditario in perpetuum per Commune Concilium totius Regni nostri praedicti In a General Council of the whole Kingdom it had been setled what the King should have of his Tenants by reason of Tenure and what Free Services he should have even of those Freemen which were not his Tenants Thus by the Oath of Fealty or Allegiance and by the Law of Association or the revival of the Frank Pledges every Freeman was tied to Service for the Defence of the Peace and Dignity of the Crown and Kingdom and by the Association more particularly to maintain Right and Justice for all which they were to be conjurati fratres sworn Brethren And besides this there were Services belonging to the Crown which lay upon the Lands of Freemen To instance in Treasure Trove and Royal Mines Thesauri de terris Regis sunt nisi in Ecclesiâ vel Coemeterio inveniantur Aurum Regis est medietas argenti medietas ubi inventum fuerit quodcumque ipsa Ecclesia fuerit dives vel pauper And this was as properly a Service as the Roman servitus praediorum which consisted in something to be suffered upon Lands or Houses But he would not exact or take from them by force any kind of Tallage Therefore the Historian tells us that in the year 1084. De unaquaque hidâ per Angliam VI. solidos accepit he accepted as a voluntary guift 6 s. of every hide of Land throughout the Kingdom if 't was without consent 't was against his own Charter and so illegal But to proceed to shew the nature of the Auxilia which came from Tenants in the Reign of some of his Successors either ordinary as common incidents or extraordinary By the Common Law as the Lord Cook observes upon the Statute of West 1. cap. 36. to every Tenure by Knights Service and Socage there were three Aids of money called in Law Auxilia incident and implied without special reservation or mention that is to say relief when the Heir was of full Age Aid pur fair fitx Chevalier Aid pur file marrier When the Lord Cook tells us that these Services were incident to Socage Tenures as well as Knights Service it must be intended when it is spoke of the Services of the Tenants of the King 's Ancient Demeasn only for they that held of the King by certain Rent which was Socage Tenure were not subject to the payment of the Tallage except their Land were of the Ancient Demeasn of the Crown And therefore Robert de Vere Earl of Oxford who held a Mannor of the Crown by a certain Rent which to be sure was not Knights Service pleads that he held the Mannor with the Appurtenances per Servitium Decem librarum Regi ad Scaccarium annuatim reddendum pro omni Servitio Regidedit intelligi quod idem Manner non antiquo dominico Coronae Regis Angliae nec est de aliquibus temporibus retroactis in Tallag per Progenitor Regis Angliae in dominicis suis assessis consuevit talliari Upon search made he and his Tenants are freed from Tallage So the King declares that he will not have Aid that is Tallage for marrying his Eldest Daughter of any Clergy-men that hold in Frank-Almaign or Socage which must be taken in the same sense with the former And before this Walterus de Esseleg held a Mannor ad foedi firmam that is at a certain Rent of the gift of Hen. 2. and was never afterwards talliated quum Praedecessores nostris Reges Angliae nos talliari fecimus Dominica nostra it seems though the Land had been of Ancient Demeasn yet it was severed by the Purchase This Tallage was called Auxilium in the Record De consilio nostro provisum est quod auxilium efficax assideri faciamus in omnibus burgis dominicis nostris Yet the City of London being charged with a Tallage the Common Council dispute whether it were Tallagium or Auxilium which is there meant of a voluntary Aid not due upon the account of any of their houses being of the Kings demeasne though indeed 't is then shewn that they had several times before been talliated This explains that part of the Charter simili modo fiat de Civitate Londinensi that is as in all cases besides those excepted Escuage or Tallage should not be raised but by a Common Council of the Kingdom that is of all the persons concern'd to pay So for the City of London unless the Aid were ordered in a Common Council wherein they and all other Tenants in Chief were assembled none should be laid upon any Citizens but by the consent of their own Common Council and if the Ordinance were only in general terms that all the Kings Demeasns should be talliated the proportions payable there should be agreed by the Common Council of the City according to that Record 11 Hen. 3. Assedimus auxilium efficax in Civitati nostra London Ita quod singulos tam Majores quam Minores de voluntate Omnium Baronum nostrorum Civitatis ejusdem per se talliavimus Et ideo providimus simile auxilium per omnes Civitates nostras Burgos dominica nostra assidere This per se talliavimus was a talliating per Capita for when the Common Council refused to give such a sum in gross as the King demanded then the King was put to have it collected of every Head and is according to the faculty of every Socage Tenant of his Demeasn as appears by the Record of 39 Hen. 3. Whereas by this Charter the King might take Escuage or Tallage in three cases without the consent of the Tenants but confin'd to reasonable that is secundum facultates or salvo contenemento and in those cases wherein
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
Portsmouth Generale proposuit edictum ut Comites Barones omnes qui militare servitium ei debebant parati essent ad Portesmue cum equis armis ad transfretandum cum eo ad partes transmarinas in die Pentecostes iam instante Those that would not pass the Seas with him consented to the payment of escuage Two marks of Silver upon every Knights Fee dantes Regi de quolibet scuto duas marcas Argenti The next year he held his Curia on Christmass in Normandy And the year following this he held his Christmass Court in Normandy likewise In the year 1204. his Curia was held on Christmass at Canterbury from thence he went to Oxford where were present more than the Members of the Ordinary Curia convenerunt ad colloquium apud Oxoniam Rex Magnates Angliae Indeed what is then given the King is only from his feudal Tenants but that is no argument that therefore no more were there because the Council advis'd him to charge his Tenants nay 't is very observable that the Historian does not say that they which were there assembled gave but ubi concessa sunt Regi auxilia militaria de quolibet scuto scilicet duae marcae that is there Escuage was given by or upon them who held by Knights service or it might be an aid given generally by every one according to the number of Acres or value of his estate in proportion to the valuation of a Knights Fee As was usually done in that and succeeding times And then I take it provision was made for the defence of the Kingdome viz. that every Nine Knights throughout the Kingdome should find a tenth arm'd at all points to be ready in servitio nostro ad defensionem regni quantum opus fuerit this to be sure reacht further than to the Knights by Military Tenure because every one that held a Knights Fee was by his tenure to find a man and consequently this would have been a weak'ning of the Kingdome to abate of their services but it must needs have extended to all that held to the value of a Knights Fee though not by Knights service This was provided Communi assensu Arch. Ep. Com. Baronum omnium fidelium nostrorum Angliae And so a general Land Tax And at the same Parliament the King per commune Concilium Regni made an Assise of Money In the year 1205. he held his Court at Theokesbery which broke up the first day Soon after he call'd together his army that is those who were oblig'd by their tenure to attend him for though the Curia de more was confin'd to certain days yet the King made the Court where-ever he pleas'd to appoint it and the obligation to attendance at the Court was indefinite his Military Council when met refus'd to go with him beyond sea as he required whereupon with a few of them he sets out to sea and after he had coasted about a little he exacted a great summ of money from those whose tenure could furnish him with a pretence for it because they discharg'd not the duty of their tenure occasiones praetendens quod noluerunt ipsum sequi The next year he held his Court on Christmass at Oxford The Historians give no mark of any thing more than an ordinary Curia but the Records do There was a grant of subsidy upon every mans personal estate per Commune Concilium assensum Concilii nostri apud Oxoniam This in another Record is said to be by the Arch. Ep. Abbates Magnates Regni nostri Rot. Par. 8 Jo. m. 1. On Whitsontide he held his Court at Portsmouth In hebdom Pentecostes exercitum grand apud Portesmouth congregavit But then the Christmass following at Winchester he held a General Council and that was on the Court day Celebravit natale Domini apud Wintoniam praesentibus Magnatibus regni Deinde in purificatione beatae Mariae cepit per totam Angliam tertiam decimam partem ex omnibus mobilibus aliis rebus tam de laicis quam de viris ecclesiasticis praelatis cunctis murmurantibus sed contradicere non audentibus Here was a grant of what no way belong'd to tenure and therefore all the Magnates regni were privy to it though 't was done grudgingly In the year 1208. he held his Court on Christmass at Windsor where he distributed coats to his Souldiers He held his Christmass Court at Bristol He held a Great Council on the Feast day at Windsor praesentibus omnibus Angliae Magnatibus So the year following at York praesentibus Comitibus Baronibus regni 1212. 'T was but an ordinary Court held at Windsor fuit ad natale apud Windsor 1213. He held his Court at Westminster with very few tenants ad natale Domini tenuit Curiam suam apud Westmonasterium cum pauco admodum Militum comitatu In this year we find a Military summons to more than tenants and of an extraordinary nature Misit literas ad omnes Vicecomites regni sui sub hâc formâ Rex Johannes c. Summone per bonos summonitores Comites Barones Milites omnes liberos homines servientes vel quicunque sint de quocunque teneant qui arma habere debent vel arma habere possint qui homagium nobis vel ligeantiam fecerunt Quod sicut nos seipsos omnia sua diligunt sint apud Deveram ad instant clausum Paschae benè parati cum equis armis cum toto posse suo ad defendendum caput nostrum capita sua terram Angl. Et quod nullus remaneat qui Arma portare possit sub nomine Culvertagii perpetuae servitutis Et unusquisque sequatur Dominum suum Et qui terram non habent arma habere possint illic veniant ad capiendum solidatas nostras Hereby all free-men as well as the Kings tenents nay servants and all that ow'd allegiance to the Crown though not oblig'd to bear arms if they could get any were required to give their attendance and those that had not wherewithal to maintain themselves should have the Kings pay this was upon expectation of an invasion and therefore the assembly seems to have been as general as the summons but there is a shrewd circumstance to induce the belief that many considerable men not holding in Chief thought themselves not oblig'd to attendance till necessity press'd them for otherwise he would never have been terrified into a dishonourable peace the parting with all his right of patronage to the Pope and submitting to his pleasure if he had not been sensible by the absence of many great men that there was truth in the French King's boast Jactat se idem Rex Chartas habere omnium ferè Angliae Magnatum de fidelitate subjectione But that this was not
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
Justiciarios Capitales qui proprias causas Regis terminant aliorum omnium per querelam vel per privileginm sive libertatem But as the Curia Regis was held sometimes of the Tenants and Officers only sometimes of the whole Kingdom when matters having no relation to Tenure or ordinary Judicature were in question hence has arose the mistake of some Learned Authors in taking the Curia Regis to be nothing but the Court of the King's Tenants of others that 't was meant only of the Great Council of the Nation Whereas we may trace their frequent distinctions from the Conquest downwards very apparently and very often their union It is agreed on all hands that the ordinary Curia was held thrice a year at Christmass Easter and Whitsontide and in the time of William the First the places were as certain on Christmass at Glocester on Easter at Winchester on Whitsontide at Westminster while they were held at the accustomed places there was no need of any Summons they that were to come ratione Tenurae might well come de More afterwards they removed from place to place the King made the Court where ever he was pleased to hold it and indeed when ever but then it could not be the Curia de more if it were at a different time or place then there was need of Summons if there were summoned at any time more than the Ordinary Members of the Curia if this was on the day of the Curia there was an Union of the Great Council and the Curia if on a different day there was a Great Council by its self yet the Members of the Curia were a part thereof Not to anticipate what will appear from the Presidents which I shall produce to make good this my Assertion I shall make my Observations upon them in order About the first year of the Reign of William the First as Mr. Selden supposes was held the Council at Pinnedene to determine the difference between Odo Bishop of Baieux Earl of Kent and Archbishop Lanfranc if this were a Curia de More then 't is evident that more than Tenants in Chief nay all Proprietors of Lands assembled then of course even at the Curia for the probi homines of several Counties were there but it appears that it was upon the King's Summons to all the Freeholders of Kent and of some adjacent Counties Praecepit Rex quatenus adunatis primoribus probis viris non solum de comitatu Cantiae sed de aliis comitatibus Angliae querelae Lanfranci in medium ducerentur examinarentur determinarentur Disposito itaque apud Pinnedene Principum conventu Godfridus Episcopus Constantiensis vir eâ tempestate praedives in Angliâ vice Regis Lanfranco justitiam de suis querelis strenuissime facere jussus fecit Here all the probi homines are by variation of the phrase conventus Principum a Bishop was President and pronounced the Judgment but it was as 't is said afterwards Ex communi omnium astipulatione judicio this Judgment was afterwards revoked in another Council which to be sure must have been as large as the other else the Lawyers who were there could never have made any colour of an Argument for the revocation Item alio tempore idem Odo permittente Rege placitum instituit contra saepe fatam Ecclesiam Tutorem ejus patrem Lanfranc illius omnes quos peritiores legum usuum Anglici Regni noverat gnarus adduxit Cum igitur ad ventilationem causarum ventum esset omnes qui tuendis Ecclesiae causis quâque convenerunt in primo congressu ita convicti sunt ut in quo eas tuerentur simul amitterent 'T is observable that there was a legal tryal and the cause went on that side where the Law seemed to be but indeed afterwards Lanfranc coming possibly upon producing some Evidences not appearing before the first Judgment was affirmed Here matter of ordinary Justice was determined before more than the ordinary Curia This looks very like a General Council of the whole Nation to be sure 't was more than a Curia of the King's Tenants and Officers and is more than a County Court Yet in the nature of a County Court it being several Counties united and so was adunatio conciliorum though not of the Council of the whole Nation An Ancient MS. makes this Chiefly a Court of the County of Kent Praecepit Rex Comitatum totum absque mora considere homines Comitatus omnes francigenas praecipuè Angl. in antiquis legibus consuetudinibus peritos in unum convenire But then it adds alii aliorum Comitatum homines and so confirms what Eadmerus says The nature of these Courts is easily to be explained by Writs which we find from William the First for such Tryals as this at Pinnedene Willelmus Anglorum Rex omnibus fidelibus suis Vicecomitibus in quorum Vicecomitatibus abbatia de Heli terras habet salutem Praecipio Abbatia de Heli habeat omnes consuetudines suas c. has inquam habeat sicut habuit die qua Rex Edwardus fuit vivus mortuus sicut meâ jussione dirationatae sunt apud Keneteford per plures scyras ante meos Barones viz. Gaulfridum Constansiensem Episcopum Balwinum Abbatem Petrum de Valonnus Picotum Vicecomitem Tehehen de Heliom Hugonem de Hosden Gocelinum de Norwicum plures alios Teste Rogero Bigot Willielmus Rex Anglorum Lanfranco Archiep. Rogero Comiti Moritonio Gauffrido Constantiensi Episcopo salutem Mando vobis praecipio ut iterum faciatis congregari omnes scyras quae interfuerunt placito habito de terris Ecclesiae de Hely antequam mea conjux in Normaniam novissimè veniret Cum quibus etiam sint de Baronibus meis qui competenter adesse poterunt praedicto placito interfuerunt et qui terras ejusdem Ecclesiae tenent Quibus in unum congregatis eligantur plures de illis Anglis qui sciunt quomodo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit et quod inde dixerint ibidem jurando testentur Quo facto restituantur Ecclesiae terrae quae in dominico suo erant die obitûs Edwardi exceptis his quas homines clamabunt me sibi dedisse Illas vero literis signate quae sint et qui eas tenent Qui autem tenent Theinlandes quae proculdubio debent teneri de Ecclesiâ faciant concordiam cum Abb. quam meliorem poterint et si noluerint terrae remaneant ad Ecclesiam Hoc quoque de tenentibus socam et sacam fiat Denique praecipio ut illi homines faciant pontem de Heli qui meo praecepto et dispositione hucusque illum soliti sunt facere Willielmus Rex Anglorum Goffrido Episcopo et Rodberto et Comiti Moritonio salutem Facite simul
free-holder in his own Person or ex electione conjugali by Joint-Election of the Clergy and Laity It would be superfluous to produce the many Authorities which shew that the Laity used to be of Council in Ecclesiastical affairs as well as the Clergy in Temporal and to give their Assent in making Canons or Laws I will instance in some very remarkable ones out of many One Eadmerus recommends with a solemn protestation En ordinem gestae rei teste conscientiae meae veritate sicut eam praesens audivi vidi in nullam partem declinando descripsi Matilda Daughter of Malcolm King of Scots marryed to Henry the first being reputed a Nun offers her self to be tryed by the Ecclesiastical Law Offert se Judicio totius Anglorum ecclesiae probaturam In another place Obtulit se vel sacramento vel alia quam magis eligerint ecclesiasticâ Lege probaturam c. At the day appointed there Assembled Episcopi Abbates Nobiles quique ac Religiosi ordinis viri the case appeared to be that she had taken upon her a Nuns habit but had never been profest whereupon Anselm having stated her case to the tota Regni nobilitas populusque minor the Nobility and Commonalty and in the name of God required them Quatenus siquis aliter de negotio illo sentiret ac sententia tulerat unde scilicet ipsam copulam secundum Legem Christianam fieri non debere posset ostendi nihil haesitans salvâ pace omnium coram proferret Here any man there had free leave to offer wherein he thought that marriage void by the Christian Law or Law of Holy Church but cunctis unà clamantibus rem justè definitam legitimè conjuncti sunt Had not this been to vindicate Anselme who it seems lay under the imputation of marrying the King contrary to the Laws of Holy Church possibly Eadmerus had never given us so full an account but he shews very particularly how those great Councils Acted that 't was in an intire Body the Assent was cunctis unà clamantibus If any thing was offered or pronounced in a Definitive Way which was generally dislik't fremitu aspernabatur as we are elsewhere told of such Assemblies If the Council was divided diversis diversae parti acclamantibus they were forc't to Adjourn or break up Thus as 't was amongst the Lacedemonians what was propounded was determined clamore non calculis We have the like Account of an Ecclesiastical Synod in the 28th of the same King Gulielmus Dorobernensis congregavit generale Concilium omnium Ep. Abb. quarumcunque religiosarum personarum cui praesedit ipse This we see was an Episcopal Council and the Bishop was President but then Confluxerant quoque illuc magnae multitudines Clericorum laicorum tam divitum quam mediocrium factus est conventus grandis inaestimabilis here was a confluence of the inferiour Clergy and the Lay-Lords and Commons and the number was beyond Account Acta sunt ibi de Negotiis Saecularibus nonnulla being all met together though upon Ecclesiastical affairs chiefly yet they had colloquium about Secular too and coming all in their own persons not by way of representation when they that were chose to come instead of the rest might receive certain Instructions according to the matter propounded for treaty beyond which they had no power it was not needful that they should know before-hand what they were to treat of but might fall upon any thing pro re natâ Quaedam quidem determinata quaedam dilata quaedam verò propter nimium aestuantis turbae tumultum ab audientiâ judicantium profligata It seems they had appointed some Judges of the Pole or rather of the noise and the Crowd was so Vast the noise so Confused that of many things they could not make any certain Judgement some things were determined by a General Acclamation and others were Prorogued to a further day Quae autem communi Episcoporum consensu in ipso concilio decreta sunt Statuta sicut illic publicè recitata sunt suscepta in hoc opere placuit annotare c. Here Ecclesiastical Matters were first debated and settled amongst the Bishops then they were publickly rehearsed and either rejected or suscepta receiv'd by the whole Assembly of Clergy and laity but this was not enough to give them the force of a Law they must have the stamp of Royal Authority to be Currant Rex igitur cum inter haec Londoniae moraretur auditis concilii gestis consensum praebuit confirmavit statuta Concilii à Guilielm Cant. Arch. Rom. Eccles Legati apud Westm Celebrati At this time it seems the King was not in the Council but the Canons though drawn up by the Bishops promulgated before and assented to by the Body of the Realm yet had no force till Authenticated by the head of the Church and State Gervase of Dover is little less particular in the Account of the Ecclesiastical Synod in his time wherein the Canons or Constitution declaring it unlawful for Clergy-Men Agitare Judicia Sanguinis was embodyed into the Laws of the Land Ricardus vero Cant. Arch. totius Angliae Primas Apostolicae Sedis Legatus convocato clero Angliae celebravit concilium in ecclesiâ Beati Petri ad Westm 15. Kal. Junii Dominicâ ante Ascensionem Dom. afficerunt in hoc concilio omnes suffraganei Cantuar. Eccles praeter Vigorniens qui diem clauserat extremum In hoc concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula Ad Dextram Primatis sedit Episcopus Londinensis quia inter Episcopos Cantuar. Ecclesiae Sussraganeos decanatus praeminet dignitate ad Sinistram sedit Episcopus Winton quia Cantoris officio praecellit caeteri tam Episcopi quam Abbates secundum primogenit consecrationis suae consederunt Ipse vero Archiepiscop Primas Legatus residens in sublimi post sermonem quem tam facundè quam disertè fecit in communi de Scripto legi fecit Statuta concilii sui sub hac forma c. Here it appears that their Councils were held by the Arch-Bishops of Cant. that the Statutes or Canons were drawn up in some private Consults of Bishops but they took their force from the Assents of the King and all the Primores Regni the Clergy and Laity of the Land and that the third Canon by me cited was a Statute This to be sure and the other Ecclesiastical Councils abovementioned were more than the Curia de more I cannot as the Author of the Grand Question does summ up the Arguments on both sides for I know not one that hath yet been offered against what I have gone upon which may be thus represented in short 1. That the Canons prohibit the judging in Capital Causes and all Preliminary Votes too 2. That these Canons were received by
consuetudine concess nobis efficax auxilium ad magna negotia nostra expediend unde provisum est de consilio illorum quod habeamus de singulis feodis quae de nobis tenent in Capite de wardis tam de novo feoffamento quam de veteri duas marcas Whether the Tenants in Capite Granted at this Council by themselves or all agreed in one Body is not material but here is a grant from all jointly or severally I will shew one Instance which is barely of such a Commune concilium Regni as King John's Charter exhibits Rex Bar. Quia per commune concilium Com. Baronum aliorum Magnatum nobiscum in Walliâ nuper existentium provisum est quod nos ipsi qui servitium nobis fecerunt ibidem habeamus scutagium nostrum viz. De Sicuto 40 s. pro exercitu nostro Wall ’ anno Regni nostri 41. vobis mandamus quod de omnibus feodis Militum quae tenentur de nobis in Capite vel de Wardis in manu nostra existentibus exceptis feod illorum qui brevia nostra habuerunt de scutag suo habendo levari fac scutag nostrum Here was a Common Council of Tenants such is according to their obligation of their Tenure had attended the King in his Wars and they laid Escuage upon them which did not perform their Services due which still were only Tenants in Chief and the Tenants of the King's Wards which were liable to the same Service and they which made default were to pay Escuage to the King which he says was to his Tenants too in as much as he out of that satisfi'd their charges beyond the duty of their Tenure I think I have clear'd my way to the treasury of Records in this Kings Reign which acquaints us with the Members of the Great Council of the Nation As before is observ'd for the obtaining Magna Charta and Charta de Forestâ the Arch. Episc Abbates Priores Comites Barones Milites liberè tenentes omnes de Regno Granted a Subsidie There is a Grant of Carvage which Bracton says us'd to be consensu Communi totius Regni not being a Service or such as Tenants only us'd to charge or pay the Reward has it Omnes Magnates fideles totius Regni nostri Granted de qualibet carucatâ duos solidos The King in his Letter to the Pope says That he had Summon'd to Northampton Arch. Episc Abb'es ac omnes Magnates totius Regni to give him concilium auxilium The King undertook a Foreign Voiage De communi concilio omnium Comitum Baronum nostrorum Angliae A Fourth part of their Moveables is Granted by the Archiepiscopi Episc Abbates Priores Clerici terras habentes quae ad Ecclesias suas non pertinent Comites Barones Milites liberi homines villani de Regno nostro So that 't is plain here who made the CoÌ„mune ConciliuÌ„ Regni and gave the Subsidie the Arch-Bishops Bishops Abbots Priors inferior Landed Clergy-men the Counts Barons Knights Free men it being a Grant of Goods not lay'd upon Land and that it may fully express the Parties to the Grant the Record tells us there were the villani the Inhabitants of every Villa A Provision about the Sheriffs Turns Hundred-Courts Wapentakes and the Courts of Lords of Mannors was De communi concilio domini Cant. omnium Episc Comitum Baronum aliorum Comites Barones omnes alii de toto Regno nostro concess nobis efficax auxilium c. It is provided coram venerab Patre Cant. Arch. coram Majori parte Episc Comitum Baronum totius Regni nostri Angliae that no Assize of Darrein Presentment shall be taken of any Prebendary belonging to a Cathedral Church At a Parliament Cum ad mandatum nostrum convenirent apud West Archiepisc Abbates Priores Comites Barones totius Regni nostri tractatum haberent nobiscum de statu nostro Regni nostri They grant a Subsidy Archiepis Abbates Priores Cler ’ terras habentes quae ad Ecclesias suas non pertinent Comites Barones Milites liberi homines pro se suis villanis 30. m. partem omnium mobilium suarum Nus volens otroiens ke ce ke nostre la greignure partie de eus ki est esluz paromis par le Commune da nostre Roiaume a fet u fera al honir de dieu nostre foi pur le profit de nostre Roiame sicum il ordenera seit ferm estable en tuites chesel a tuz jurz commandous a tuz noz faus leaus en la fei kil mis devient kil fermement teignent jurgent a tenir meintenir les establissements que sunt fet u sunt a fere par lariont dit Conseil This agrees with what was done afterwards in the 42d of this King and it seems by this that even in the 24th par le Commune de nostre Roiaume by the whole Realm or Great Council the King had a special Council Assigned which was to have an extraordinary Power Magnates nostri ad sedem Apostolicam appellarunt quosdam pro universitate totius Baronagii Angliae ad concilium in brevi celebrand ’ ad appellacionem pred ’ prosequendam duxerunt destinandos The Barnagium here according to Mat. Paris were Barones Proceres Magnates ac Nobiles Portuum maris habitatores nec non Clerus Populus universus The Pope had order'd De Apostolicâ seâ—e that a Years profit of the Churches which were of the gift of Lay-men should be settled by way of Subsidy upon the Church of Canterbury but 't was deny'd in full Parliament Magnates terrae nostrae noluerunt in ultimo Parliamento nostro quod fuit London ut de Ecclesiis ad donationem laicorum spectantibus c. In Parliamento nostro Oxon. communiter fuit Ordinatum that was about settling and new modelling some things relating to the Government which the King promiseth should be done per concilium proborum et fidelium hominum nostrorum regni Angliae unà cum consilio Legati Domini Papae Pur le profit de nostre reaum et a la request de mes hauz homes e prodes homes e du Comun de nostre Reaume The King and People having in the 42 d. agreed upon a standing Council and that what they did in the way of Settlement should be effectual and acquiesced in on all sides Cum c. promiserimus praedictis proceribus et Magnatibus nostris quod reformac'onem et ordinac'onem per praedictos vigitni quatuor vel majorem partem eorum faciend ’ ratam habebimus et firmam c. Hereupon in the 45th they order a representation of 3. for every County pro ea vice but do not yet settle it for a standing Rule Cum
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