from Tenure But this is to be observed that this being spoke of as antiquated and that the People and Laws were in reputation when this was the usage there is a strong presumption from hence that since that time a less matter than five hides of Land a Church c. gave a place in the King's Court when Nobilty was cheaper and so the People the Nobles of less reputation The Normans followed not only the Lane but the decent Customs and Ceremonies of the former Government though not directly yet by way of resemblance And whereas the Saxon Kings celebrated their Courts often on great Feast days before all their People upon publick notice King William erects Tenures whereby all that he had obliged by his gifts except such as out of special favour were to do some small thing pro omni servitio should make a little Court or Council by themselves either Military if occasion were or Judicial in matters belonging to their feud And by Henry the Third's time if not Henry the Second's it took in all or most matters of ordinary Justice whereas before its business was confined to the Controversies arising between the King 's immediate Tenants other Suits especially about Lands were settled in the Counties or Hundreds or in particular Lords Courts as appears by the Charter of Henry the First de Comitatu Hundredis tenendis Henricus Rex Anglorum Sampsoni Episcopo Ursoni de Abecot omnibus Baronibus Francis Anglicis de Wircestrescirâ salutem sciatis quod concedo praecipio ut à modo Comitatus mei Hundreda in illis locis eisdem terminis sedeant sicut sederunt in tempore Regis Edw. non aliter 〈◊〉 enim quando voluero faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam I cannot here omit the plain observation that dominica necessaria cannot be meant otherwise than of the King 's own business for his necessary Demeasns were nonsense therefore the sense is that as often as he had occasion he would give them that is all the Counties and Hundreds sufficient notice for attending him so that here is a clear description of the nature of his Great Councils nay and of St. Edward's too in that when he says they shall sit no otherwise than they had done in St. Edward's time he adds For when I have a mind to it I will cause them to be sufficiently summoned to meet upon my necessary occasions of which I will be Judge that is so it was in King Edward's time and indeed so it appears in the Body of his Laws recited in the Fourth of William the First where 't is enacted that Tythes shall be payd of Bees we are there told with what solemnity the Law passed Concessa sunt à Rege Baronibus Populo So whereas King Ethelwolf Father to the Illustrious King Alfred had in the year 855 or 854 granted to the Church the Tythe of his own Demeasns Rex Decimas Ecclesia concessit ex omnibus suis terris sive Villis Regiis about ten years afterwards the Tythes were settled all over the Kingdom by a general consent totâ regione cum consensu Nobilium totias populi By the Populus is not to be intended all People whatsoever for they who were not Freeholders were not People of the Land were no Cives and were not properly a part of any Hundred or Country for they were made up of the Free Pledges the Freeholders Masters of the several Families answering for one another by Tens Ten Tens or Tythings at first making an Hundred Court and more or fewer Hundreds according to the first division or increase a Country and for the clear understanding the general Words as Principes Thaini Barones Proceres Baronagium Barnagium Regni or the like relating to the Great Councils of the Kingdom before and since the Norman acquisition we find by this Charter of Henry the First that the Counties and Hundreds that is the men which composed those Courts were upon sufficient notice to attend upon the King's business that is constitute the Councils and therefore Simeon of Durham very properly says of the Great Council Concilio totius Angliae adunato the same with what Eadmerus says of the Council of Pinnedene in the First William's time adunatis primoribus probis viris non solum de Comitatu Cantiae sed de aliis Comitatibus Angliae here were the probi homines the Freeholders of the Counties they that made the County Court or Turn either of which in St. Edward's Laws is called the Folkmote and is there described vocatio congregatio populorum omnium and we find by Statutes made before this time that the populus omnis or the primores probi homines according to Eadmerus are called Peers or Nobles for that the Country-Court or Turn at least was Celeberrimus ex omni satrapiâ conventus Thus in King Edgar's Laws Centuriae Comitiis quisque ut antea praescribitur interesto oppidana ter quotannis habentur Comitia Celeberrimus autem ex omni satrapiâ bis quotannis conventus agitor cui quidem illius Diocesis Episcopus Senator intersunto c. This some great men have taken for a General Council or Parliament but the contrary is manifest in that only the Bishop of the Diocess and one Senator either the Count or the Sheriff are to sit there in Chief and this very Law being taken notice of by Bromton it is there called Scyremotus so in Canutus his Laws where this is repeated and where Canutus his Laws give an Appeal from the Hundred to the County-Court or Turn this of the County is called Conventus totius Comitatus quod Anglicè dicitur Scyremote But to proceed with the Charter of Henry the First concerning the County and Hundred Court Et si amodo exurgat placitum de divisione terrarum si interest Barones meos dominicos tractetur placitum in Curiâ meâ Et si inter vavasores duorum Dominorum tractetur in Com. c. Though according to this the Titles to Land between all but immediate Tenants or such Lords as had none over them but the King were determinable in the County yet sometime before the Great Charter of Henry the Third Common Pleas in General which takes in the Titles of Land followed the King's Court where ever he held it and by that Charter were brought to a certain place Communia placita non sequantur Curiam nostram sed teneantur aliquo loco certo The King's Bench is coram Rege and used to follow the King's Court and was removeable at the King's pleasure Here Common Pleas as well as matters of the Crown were heard and at this doubtless all the King's Tenants by Knights Service used to be present of this Bracton says Illarum Curiarum habet unam propriam sicut aulam regiam
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
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
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
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
venire omnes illos qui terras tenent de dominico victu Ecclesiae de Heli et volo ut Ecclesia eas habeat sicut habuit die qua Edwardus Rex fuit vivus et mortuus et si aliquis dixerit quod inde de meo dono aliquid habeat Mandate in magnitudinem terrae et quomodo eam reclamat et ego secundum quod audiero aut ei inde escambitionem reddam aut aliud faciam facite etiam ut Abbas Symeon habeat omnes confuetudines quae ad Abbatiam de Heli pertinent sicut eas habebat Antecessor ejus tempore Regis Edwardi Preterea facite ut Abbas seisitus sit de illis Theinlandis quae ad Abbatiam pertinebant die quo Rex Edwardus fuit mortuus si illi qui eas habent secum concordare noluerint et ad istud placitum summonete Willielmum de Guaregnna et Richardum filium Gisleberti et Hugonem de Monteforti et Goffridum de Manna Villâ et Radulfum de Belfo et Herveum Bituricensem et Hardewinum de Escalers et alios quos Abbas vobis nominabit Upon these Writs many useful things might be observed but I will confine my self as nigh as I can to my purpose From them as interpreted by equal authority of History it appears that Wil. the first us'd to commissionate several of his Barons I will not oppose their being his great Tenants in Chief these were to preside in the Tryals of matters within ordinary Justice which were to be try'd in the several Counties where the question arose sometimes in one County sometimes in several together as the men of the several Counties that is the several Counties were united Sometimes these great Men sometimes the Sheriffs were to Summon the Parties and to take care that an Inquest of the County or Counties concern'd be impannell'd in the Counties that is by the choice of the Freeholders The Kings Commissioners were to pronounce the Judgment in the Kings Name or stead So the Bishop of Constance did right to Lanfranc 't was Judicio Baronum Regis qui placitum tenuerunt and yet ex communi omnium astipulatione judicio The Inquest upon their Oaths found the matter of Fact the Judges stated it to the people and delivered their Judgment to which the Primores probi homines assented for 't was ex communi omnium astipulatione this agrees with what Bracton says of the Laws pass'd in the Great Council of the Nation De Concilio Consensu Magnatum Reipublicae communi sponsione But it may be objected that the Kings Writ is to the Great Men to do Justice to which the Books give an answer that the Kings Writ does not change the Nature or Jurisdiction of a Court and therefore though a Writ of Right or a Justities be directed to the Sheriff yet the Suitors in the County Court are Judges And what their Jurisdiction was in the time of Wil. the first is to be gathered from what continued to the Freeholders or Suitors of the County Court of Chester even till the time of Edward the First Upon a Writ of Error to remove a Judgment out of the County Palatine of Chester into the King's Bench in a Plea of Land The Chief Justice of Chester certifies that the Judicatores et Sectatores the Suitors at the County Court clamant habere talem libertatem quod in tali casu debent omnes Barones eorum Seneschal ac Judicatores ejusdem Comitatus summoniri audituri hujusmodi processum Recordum illa antiquam sigilla sua apponant si fuerit infra tertium Comitatum per seipsos emendare Et hujusmodi libertates a tempore quo non exstat memoria usi sunt et gavisi And the Chief Justice farther certifies quòd fecit summoniri omnes Barones et Judicatores accordingly The Parties Assembled at the Council of Pinnedene were the Primores et probi viri of the Counties concern'd which answer to the Proceres et fideles Regni in the union of all the Counties in Parliament as in the 42 of Henry 3. which in another Record of the same Parliament are branch'd out into hanz hommes e prodes hommes there are the Primores et probi viri e du commun de nostre Realme that is as the Statute of the Staple has it the Prelates Dukes Earles Barons the Great Men of the Counties Grands des County's as the French and the Commons of the Cities and Borroughs The Testimony of Eadmerus concerning the Parties to the Judgment at Pinnedene confirms me in my opinion that the Summons to a Great Council as I take it in this Kings Reign mentioned by Simon of Durham and Florentius Wygorniensis which was to all the Bishops Abbots Earles Barons Sheriffs with their Knights was not to them and those only who held of them by Knights Service for more than such were Judges even for matters of ordinary Justice within the Counties but that it was to them and the Sheriffs Knights the Freeholders of the Countys who were by St. Edwards Laws oblig'd to find Arms and became Knights Milites as soon as by publick Authority they took Arms the antient form of Manumission proves this sufficiently Siquis velit servum suum liberum facere tradet eum Vicecomiti per manum dextram in pleno Comitatu et quietum illum clamare debet a jugo servitutis suae per manumissionem et ostendat ei liberas portas et vivias et tradat illi libera Arma viz. Lanceam et Gladium et deinde liber homo efficitur Thus he becomes a freeman and the Sheriffs Knights at the same time That all Freeholders had the appellation of Milites is evident by many Records and even a Statute that for the choice of Coroners which was but declaratory of the common Law as appears by several Records before that time I will instance in one Because one that had been chosen Coroner was neither a Knight or Freeman as that interprets it self nor yet discreet therefore a new choice is directed Miles non est et in servitio alieno et juvenis et insufficiens et minus discretus Here in Servitio alieno a servant is put in contradistinction to Miles that is to a Freeholder or Liber tenens Et here has the like import with Sed unless a man might have been a Knight and yet no Freeman The Freeholders of the County of Cornwall Fine to the King for leave to chuse their Sheriff 't is said in the Record Milites de Com. Cornubiae finem fecerunt Rot. fin 5º H. 3. pars 1 a. M 9. And these which are here called by the general denomination of Knights are in another Record of the same specified under these names Episcopus Comites Bar. Milites libere tenentes et omnes alii de Com. so that all the people of the
County that is they which were part of the County Court were comprehended under the word Milites In another Record the Milites et probi homines that is honest Freeholders are used as the same In pleno Com. tuo dicas Militibus probis hominibus Ballivae tuae c. The Milites or probi homines were under the Sheriff an Officer of their own choice as was the Law and Custom of this King's time to be sure and long after the Office of the Heretochius who had been the Ductor Militiae had been discontinued no body knows how long and 't is spoke of only as an Office that had been But the Sheriff being of the Freeholders choice not the Kings having no certain Salary nor Fee upon any account taken notice of in the eye of the Law but depending upon what the King should give out of the two thirds of the Profits of the County the tertium denarium the third part the Earl o◠Count had who will imagine that the Sheriffs as Sheriffs had any feud rais'd upon them by the King that is were to attend at his Courts or in his Wars with their Feudall Knights the posse Commitatus which was assisting to them being of quite another nature Indeed I find one Fulcherus homo Vicecomitis that is Tenant by Knights Service to which homage was incident and in that sense Miles Vicecomitis in another part Tenet Rogerus de Picoto Vicecomite de foedo Regis hanc terram tenuit Gold sub Abbate Eli potuit dare absque ejus licentiâ sine sacâ This had been freehold within the Abbots Precinct alienable without licence subject to no suit of Court and was granted to Picot then Sheriff of the County to hold of the Kings feud that is by Knights service Yet he did not hold this as Vicecomes but as Baro so 't was if any man had the County in fee But the King Summoned the Barones Vicecomites that is the Vicecomites without consideration of their capacity as Barons and their Knights 't was long after this that the word Vicecomes was any thing more than tbe name of the Office here spoken of an honorary Viscount was not then known such indeed might at their creation have had feuds rais'd upon the Lands granted along with their Honours There is this farther proof that this was more than a Council of the Kings Tenants and Officers or ordinary Court in that the Summons was immediately after the Curia and that to a place sufficiently capacious Salisbury Plain Et in hebdomada Pentecostes suum filium Henricum apud West ubi Curiam suam tenuit armis militaribus honoravit here was the proper work of the Curia the King gave Arms in his Court to the Great Men and immediate Tenants the common Freeholders received them in the County Court either at coming to Age or upon becoming free by Manumission which 't is not probable that a man would desire unless he had a freehold to live upon or that thereby those Lands which were held in Villenage became free But though one were born free yet I take it he was to recieve a formal military Honour have Arms deliver'd to him when he came to Age and in the time of Hen. 1. 't is us'd as a sign that one was not of age when he seal'd a Deed and consequently 't was not effectual because Militari baltheo nondum cinctus erat We find that when a freeman died his Heir under Age some body was to have the custody of the Arms. Siquis Arma haec habens obierit remaneat haeredi suo et si haeres de tali statu non sit quod Armis uti possit si opus fuerit ille qui eum habuerit in custodia habeat similiter custodiam Armorum c. And when he came of Age tunc ea habeat this was in Hen. 2. time and then the publick delivery of Arms to all Freemen might have been disus'd but antiently as Mr. Selden observes the taking Arms by young men from publick Authority was a kind of Knight-hood But soon after Will. the first had at his Court Knighted his Son Henry he call'd this great Assembly of Barones Vicecomites cum suis Militibus his Curia was held at Whitsontide Nec multo post mandavit ut Arch. Ep Abb. Com. Bar. Vicecomites cum suis Militibus die Kal. Aug. sibi occurrerent Saresberiae quocum venissent Milites illorum sibi fidelitatem contra omnes homines jur are coegit Here I take it Milites illorum refers to the Knights of the Sheriffs that is the Freeholders this was adunatio conciliorum a joyning together of the several Councils of the Counties where the swearing allegiance to the King was one of their Principal Works the Kings Tenants had done it of course in the Curia but methinks 't is a strange thing that it should be us'd for an Argument that this was not a great Council of the Kingdom because they were evocati◠ad fidei vinculum For satisfaction I will offer a Record of the same work done in Parliament in the time of Henry 3. Celebrato nuper Concilio apud Bristol ubi convenerunt universi Ang. Praelati tam Ep. Ab. quam Primores et multi tam Comites quam Barones qui etiam univerfaliten fidelitatem nobis publicè facientes concessis eis libertatibus liberis consuetudinibus ab eis prius postulatis ipsis approbatis c. Here the King yields them those Liberties and Free-customs which they desired and they swear Allegiance to him here was the fidei vinculum But perhaps they will say that this of W. the first was no Common Council or Parliament because it appears not that any Laws pass'd or that they were summon'd to that end For the first I think no man will say that the Assembly is less parliamentary because nothing is agreed upon in it Indeed we find that where a Parliament was dissolv'd without any Act pass'd 't is said by Judge Cook not to be a Parliament but the Inception of a Parliament that is no Session but whoever will consult the Summons to Parliament in the time of Ed. 1. 2. may satisfie himself that there were many Parliaments call'd at which there were no Laws pass'd but meerly Advice given and yet at the end thereof the Knights Citizens and Burgesses had their Writs of Expenses wherein the Kings declared that they had been called to Parliament nobiscum de diversis negotiis nos populum Regni specialiter tangentibus tractatur For the last 't is no matter whether the cause of Summons were express'd 't is enough if it were de quibusdam arduis or however else was the use of that time Besides 't is certain many Laws have pass'd in publick Councils antiently of which we have no intimation from those Historians which mention such Councils Wherever I find
Rex Magnates regni Mat. West Anglicani regni praesules Proceres Gervasius Episcopi proceres Radulphus de Diceto Praelati proceres Populus regni as another Clerus populus regni Hoveden The whole Kingdom as Dr. Stillingfleet shews us out of the Quadripartite History The body of the Realm as Sr. Roger Twisden terms it Yet I conceive that the clause so much tost to and fro without any right settlement referrs to the ordinary Curia Regis to which the Kings Tenants were bound by their tenure to come and where ordinary justice or jurisdiction in all or most causes was exercised and this gives some account why the Bishops who have been from the Normans acquisition downwards tenants in chief because of their temporalties and during vacancies the Guardians of those temporalties upon that very account have been particularly summon'd why I say they should be allowed to vote in a legislative capacity which they have as Proprietors though no tenants of the King when they proceed by way of bill of attainder and yet tenure only qualifying them for Judges in Parliament as before in the Kings ordinary Curia interesse judiciis Curiae or at least they succeeding to the jurisdiction of the Tenants in the Curia according to the constitution of Clarend that jurisdiction which they have as tenants or as succedaneous to such extends not to matters of blood It will not be proved that the coming to the Great Council where the extraordinary power justice or legislature was exercis'd was meerly because of tenure and that no body had right to be of the great Council but they that held in capite or were members of the ordinary Curia indeed when that was taken away or disus'd they that before were to do suit and service at the Curia were to perform it at the Great Court the Parliament for there was no other Court where they could and therefore in the 8th of Ed. 2. the Inhabitants of St. Albans plead that they held in Capite And as other Burroughs were to come to Parliament pro omni servitio But that the coming to the Judgements of the ordinary Curia was meerly because of tenure appears from the words of the constitution Arch. Ep. c. universi personae regni qui de Rege tenent in capite habent possessiones suas de Domino Rege sicut Baroniam c. sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus c. That is except as is there excepted these ecclesiastical tenants or Barons were to be present or interested in the Judgements together with the Kings Justices and Officers as the other Barons that is Lay-tenants in Capite It seems both Ecclesiasticks and Lay-tenants in Capite held per Baroniam yet I think caeteri Barones ought to be confin'd to them that held of the King in Chief by Knights service for many held in feodo firmâ by the payment of a certain rent or petty Serjeanty the payment of a gilt spur or the like pro omni servitio of which the Records are full who were not ordinarily to give their attendance at the Curia But tenure per Baroniam was I take it in those times no more than tenure by Knights Service in Capite This perhaps I could prove by many records I shall instance in one to the honour of a Noble Peer of this Realm now Earl late Baron of Berkley as his Ancestors have been ever since the time of Hen. 2. One of his Ancestors had the grant of the Mannor of Berkley Harness from Hen. 2. Tenendum in feodo haereditate sibi haeredibus suis per servitium Quinque Militum An office is found in Edw. the third's time upon the death of Maurice Berkley and there 't is that he held per Baroniam faciendo inde servitium Trium Militum pro omni servitio Two Knights fees having been alien'd inde upon the account of the Barony or rather the land was the Knights Service and the Knights service made the Barony as appears there being no particular words creating any honourable tenure but what resulted from serving the King with men upon his own charges the number I take it made nothing towards the nature of the tenure These tenants by Knights service the Kings Barons were obliged to be at the Kings Courts de more if at the Great Court when he should call them the chief ground was upon their ordinary attendance amongst the rest of the tenants That what relates to the Curia Regis within the Const of Clarendon was meant of the ordinary justice of the Kings Court and consequently the ordinary Court old _____ of Glocester is express Yuf a man of holi-Church hath ein lay fee Parson otherwhat he be he shall do therevore King's Service that there valth that is right ne be vorlore In plaiding and in Assize be and in judgement also But this farther appears by the summons to and proceedings at Northampton the very next year This Hoveden calls Curia Regis and Mr. Selden informs us out of an antient Author that the summons thither was only to the members of the ordinary Curia Omnes qui de Rege tenebant in Capite mandari fecit upon the Bishops withdrawing from the judging of Becket the ground of which I shall soon examin Quidam Vicecomites Barones secundae dignitatis were added 't was quidam Vicecomites some Sheriffs it could not be all because several were Majores Barones having the countys in fee but this restraint seems not to reach to the Barones secundae dignitatis suppose that it does and so comes only to the uppermost of them the Vavasores perhaps that is inferior or Mesne Lords holding Mannors of others not the King still here were more than tenants in Chief and to be sure these being said to be added were more than the members of the ordinary Curia and this Court to which they were added was only the ordinary Court of Justice If we can shew when this ordinary Court of Justice determin'd and who succeeded into the places of the ordinary members of it we may go farther to clear the matter in question than perhaps has yet been done If the Lords the great men succeeded the Court of Tenants and were let into that jurisdiction which they exercised and there is no colour of proof that Clergy-men in the Curia Regis ever voted in Capital causes but if on the other side the prohibitions running against judicia sanguinis and the constitution of Clarendon referring to the Curia Regis where the ordinary judicia sanguinis were agitated and pronounced justly they took themselves to be excluded the Curia quando de illis materiis agitur It will I think be evident that the Bishops as a part of the house of Lords answering to the Court of the Kings tenants never had any right to
free-holder in his own Person or ex electione conjugali by Joint-Election of the Clergy and Laity It would be superfluous to produce the many Authorities which shew that the Laity used to be of Council in Ecclesiastical affairs as well as the Clergy in Temporal and to give their Assent in making Canons or Laws I will instance in some very remarkable ones out of many One Eadmerus recommends with a solemn protestation En ordinem gestae rei teste conscientiae meae veritate sicut eam praesens audivi vidi in nullam partem declinando descripsi Matilda Daughter of Malcolm King of Scots marryed to Henry the first being reputed a Nun offers her self to be tryed by the Ecclesiastical Law Offert se Judicio totius Anglorum ecclesiae probaturam In another place Obtulit se vel sacramento vel alia quam magis eligerint ecclesiasticâ Lege probaturam c. At the day appointed there Assembled Episcopi Abbates Nobiles quique ac Religiosi ordinis viri the case appeared to be that she had taken upon her a Nuns habit but had never been profest whereupon Anselm having stated her case to the tota Regni nobilitas populusque minor the Nobility and Commonalty and in the name of God required them Quatenus siquis aliter de negotio illo sentiret ac sententia tulerat unde scilicet ipsam copulam secundum Legem Christianam fieri non debere posset ostendi nihil haesitans salvâ pace omnium coram proferret Here any man there had free leave to offer wherein he thought that marriage void by the Christian Law or Law of Holy Church but cunctis unà clamantibus rem justè definitam legitimè conjuncti sunt Had not this been to vindicate Anselme who it seems lay under the imputation of marrying the King contrary to the Laws of Holy Church possibly Eadmerus had never given us so full an account but he shews very particularly how those great Councils Acted that 't was in an intire Body the Assent was cunctis unà clamantibus If any thing was offered or pronounced in a Definitive Way which was generally dislik't fremitu aspernabatur as we are elsewhere told of such Assemblies If the Council was divided diversis diversae parti acclamantibus they were forc't to Adjourn or break up Thus as 't was amongst the Lacedemonians what was propounded was determined clamore non calculis We have the like Account of an Ecclesiastical Synod in the 28th of the same King Gulielmus Dorobernensis congregavit generale Concilium omnium Ep. Abb. quarumcunque religiosarum personarum cui praesedit ipse This we see was an Episcopal Council and the Bishop was President but then Confluxerant quoque illuc magnae multitudines Clericorum laicorum tam divitum quam mediocrium factus est conventus grandis inaestimabilis here was a confluence of the inferiour Clergy and the Lay-Lords and Commons and the number was beyond Account Acta sunt ibi de Negotiis Saecularibus nonnulla being all met together though upon Ecclesiastical affairs chiefly yet they had colloquium about Secular too and coming all in their own persons not by way of representation when they that were chose to come instead of the rest might receive certain Instructions according to the matter propounded for treaty beyond which they had no power it was not needful that they should know before-hand what they were to treat of but might fall upon any thing pro re natâ Quaedam quidem determinata quaedam dilata quaedam verò propter nimium aestuantis turbae tumultum ab audientiâ judicantium profligata It seems they had appointed some Judges of the Pole or rather of the noise and the Crowd was so Vast the noise so Confused that of many things they could not make any certain Judgement some things were determined by a General Acclamation and others were Prorogued to a further day Quae autem communi Episcoporum consensu in ipso concilio decreta sunt Statuta sicut illic publicè recitata sunt suscepta in hoc opere placuit annotare c. Here Ecclesiastical Matters were first debated and settled amongst the Bishops then they were publickly rehearsed and either rejected or suscepta receiv'd by the whole Assembly of Clergy and laity but this was not enough to give them the force of a Law they must have the stamp of Royal Authority to be Currant Rex igitur cum inter haec Londoniae moraretur auditis concilii gestis consensum praebuit confirmavit statuta Concilii à Guilielm Cant. Arch. Rom. Eccles Legati apud Westm Celebrati At this time it seems the King was not in the Council but the Canons though drawn up by the Bishops promulgated before and assented to by the Body of the Realm yet had no force till Authenticated by the head of the Church and State Gervase of Dover is little less particular in the Account of the Ecclesiastical Synod in his time wherein the Canons or Constitution declaring it unlawful for Clergy-Men Agitare Judicia Sanguinis was embodyed into the Laws of the Land Ricardus vero Cant. Arch. totius Angliae Primas Apostolicae Sedis Legatus convocato clero Angliae celebravit concilium in ecclesiâ Beati Petri ad Westm 15. Kal. Junii Dominicâ ante Ascensionem Dom. afficerunt in hoc concilio omnes suffraganei Cantuar. Eccles praeter Vigorniens qui diem clauserat extremum In hoc concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula Ad Dextram Primatis sedit Episcopus Londinensis quia inter Episcopos Cantuar. Ecclesiae Sussraganeos decanatus praeminet dignitate ad Sinistram sedit Episcopus Winton quia Cantoris officio praecellit caeteri tam Episcopi quam Abbates secundum primogenit consecrationis suae consederunt Ipse vero Archiepiscop Primas Legatus residens in sublimi post sermonem quem tam facundè quam disertè fecit in communi de Scripto legi fecit Statuta concilii sui sub hac forma c. Here it appears that their Councils were held by the Arch-Bishops of Cant. that the Statutes or Canons were drawn up in some private Consults of Bishops but they took their force from the Assents of the King and all the Primores Regni the Clergy and Laity of the Land and that the third Canon by me cited was a Statute This to be sure and the other Ecclesiastical Councils abovementioned were more than the Curia de more I cannot as the Author of the Grand Question does summ up the Arguments on both sides for I know not one that hath yet been offered against what I have gone upon which may be thus represented in short 1. That the Canons prohibit the judging in Capital Causes and all Preliminary Votes too 2. That these Canons were received by