praefato concilio nostro ad praed term Pashae respondere possint super praed auxil pro singulis Comitat. These were properly to come in the stead of all for they were only Deputies to carry the sense of their Principals the matter was to be propounded in the County Courts before the Knights there chose aliis and the rest of the Free-holders this whole assembly was to be moved to grant a large contribution and the Knights were to make the tender of their present before the King and his Council if the County had wholly refused the Knights had no power then to grant for them so says the Record for it was to be propounded to all Ita quod the Knights might answer for an aid from the County And it seems whether the Counties chose Deputies or not or gave them not full instructions the King was not able to work upon them that met at the place and time then appointed but they broke up in great discontent Et sic cum summa indignatione tristes admodum Proceres recesserunt But if the Tenants in Chief made the Common Council of the Kingdom till 49 H. 3. and had a power to tax the rest of the Nation de Alto Basso ad meram voluntatem suam why this summons for a representative of the Counties The very next year being the 39th above-mention'd the King sollicites them for Aid They tell the King he undertook that War against France for which he demanded aid sine consilio suo Baronagii sui And when some were for complying with the Kings Demands they Answer That all were not call'd according to the Tenour Magnae Cartae suae that is of this Kings Great Charter Now whether this were because many who were exempted from Common Summons for many such there were by particular Charters had not Special summons Singulatim from the King himself or that he put a representative upon them whereas they might plead that 't was their free Custome to come themselves in person or send as many as they pleased in their names I need not determine it being enough that here were more than Tenants in Capite But a mighty Argument has been raised against Inferiour Proprietors or the Barones Milites liberè tenentes which held not of the King being part of the great or Common Council of the Nation upon such records as mention their being summon'd coram Concilio And in effect the force resolves into this they are no part of the Kings standing Council the Assistants to him and his Lords or of his Common Council of Tenants and Officers in the Curia therefore no part of the great or Common Council of the Kingdome To clear this I need offer but one Instance of many At Christmass in the 6th of Hen. the 3. he held his Curia at Oxford but 't was more than a Curia de More Tenuit curiam suam praesentibus Comitibus Baronibus Regni words of an extensive sense or Ad natale Dom. fuit apud Oxoniam ubi festa Natalitia solemniter cum suis Magnatibus celebravit We have a Record of a subsidy granted that year probably in that very Curia Coram Nobis concilio nostro praesentibus Arch. Cant. Ep. Com. Magnatibus nostris de Communi Omnium Voluntate Now many of these were members both of the standing Council and Curia too and yet were Coram Nobis Concilio nostro but the meaning of it is that this was granted either before the King and his standing Council or the King in his Curia by all these That is here was a conjunction of all Councils in one adunatis Conciliis But because here are only Com. Bar. Magnates mentioned as if here were not any but great Lords 't is to be observed and cannot be denied by any Antiquary that free-holders and they that came from the Counties as the representatives of such had the appellation of Magnates even a long while after and therefore much rather before when Lands had fewer Owners the Owners especially such as came in their own persons were Magnates In the 37 of this King in Parliamento London so Mat. Westm p. 352. Rex Angliae R. Comes Norfolc c. caeterique Magnates Angliae consented to the Excommunication of all the Violators of the great Charter Rex Praedicti Magnates that is as is explain'd by Fleta who was Judge in the 16th of Edward the First Archiepiscopi Episcopi Abbates Regni Angliae Priores Comites Barones Milites alii Magnates the Record goes on Communitas populi protestantur publicè in praesentiâ Arch. Cant. nec non Episcoporum omnium in eodem colloquio existentium In cujus rei test in posterum Veritatis testimonium tam Dominus Rex quam praed Comites ad Instantiam Magnatum populi praesentium Scripto Sigilla sua apposuerunt Here the Communitas populi were the Communitas Civitatum Burgorum for the rest were Magnates the King and some Earls subscribed at the desire of the rest Perhaps by this time they that suppose the Commune Consilium regni within King John's Charter to have been a Full Parliament or Great Council till the 49th of Henry the Third will compound for their Notion and will yield That more than such often came to Council but that 't was of courtesie and that the King 's immediate Tenants alone could charge the rest and often did For which they have two false grounds though perhaps but one within the time we are now upon yet both are worth notice 1. They take it for granted that the Lords us'd to answer for their Tenants in Benevolences out of Parliament and upon this weak and at least uncertain foundation they build the Supposition That they at other times represented them in all Great and Publick Councils 2. Which falls within the time That it should seem by Record that the immediate Tenants have charg'd others without their Consent 1. To prove that the Lords answered for their Tenants they run back as far as William the Second's Reign when his Brother Robert sent to him to borrow Ten thousand Marks of Silver proffering Normandy for Security for Repayment The Bishops Abbots and Abbesses brake in pieces the Silver and Gold Ornaments of their Churches the Earls Barons and Sheriffs suos Milites spoliaverunt that is robbed those which were under them and 't is a fine President for the Right of the thing which carries Sacrilege and Robbery in the face of it Here the Sheriffs robb'd or took away from the Freeholders that were within their Ball'ia or Balliva and the Lords took from the Tenants within theirs wherefore if the Lords could charge their Tenants the Sheriffs could the Freeholders but I would fain see one President that the Kings Tenants ever answer'd for them that were within their Ball'ia further than the Sheriffs did for those within theirs which at
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
is not improbable that the disposition of this Honour of receiving particular Writs of Summons to Parliament might have been lodg'd in the breast of the King who is the Fountain of Honour nor is it likely that any Earl but he that justly forfeited the Kings favour would have been denied it however he were deprived of no natural Right Since the 11th of Richard the Second indeed the Nobility have had settled Rights by Patents which are as so many constant Warrants for the Chancellor to issue out the Writs of Summons Ex debito justitiae with this agrees the great Antiquary Sir Henry Spelman Sic antiquae illa Baronum dignitas secessit in titularem arbitrariam regioque tandem diplomate id circo dispensata est Upon the dissolution of the separate Court of Tenants the Tenants still succeeding to that jurisdiction and preference in the way of being call'd to the great Court which they had in and to the less without such a provision as Mr. Camden takes notice of I will grant that the Majores Barones holding in chief ex debito justitiae would have had right to special Summons but the lesser Tenants had the same Right to a general Summons and the Right of being represented as properly concluded the one as the other unless where the King had exerted his Prerogative But where the King ex tantâ multitudine Baronum differing in their circumstances some holding of him immediately others of measn Lords and his very Tenants being divided into two different Classes of Majores and Minores advanc'd some to be of his particular Council in Parliament This with submission I take it made them not Judges in Parliament eonomine because a Court may amerce its own Members but Counts and Barons by Magna Charta are not amerceable but by their Peers and therefore none but their Peers could without their own consent be of the Court with them which though they might be with consent as to all Acts amongst themselves still it would be a question how far they might without particular Patent or Writ creating them to such Honour act in that Station to the prejudice of others That special Summons to Parliament without a Seat there granted and settled by the King gives no man Vote amongst those who now have Right to such Summons appears in that the Judges and Masters in Chancery have had the same Writs with the Lords and yet are and have been but assistants to them no Members of their House The great Tenents in Chief and others in equal Circumstances were Pares to one another and if such an one was chose Knight of a Shire though the Lord Coke says the King could not grant a Writ to Supersede his coming that was so chose because 't was for the good of the Commonwealth yet he being look'd upon as one that ordinarily would be specially Summon'd the King might supersede it and thus we find even before any settled Right by Patent Rex Vicecomiti Surria salutem quia ut accepimus tu Thomam Camoys Chivaler qui Banneretus est sicut quam plures antecessorum suorum extiterint ad essendum Unum militum venientium ad proximum Parliamentū nostrū pro Coōmunitate Comitatus praedicti de assensu ejusdem Comitatus elegisti nos advertentes quod hujusmodi Banneretti ante haec tempora in Milites Comitatus ratione alicujus Parlamenti eligi minimè consueverunt ipsum de officio Militis ad dictum Parlamentum pro communitate Com ’ praedict venturi exonerari volumus c. When Tenants in Chief oreorum Pares werce call'd by special Writ they very properly exercised the same jurisdiction which Tenants did before in their separate Court In the 5th of Richard the Second many having refused attendance and not owning themselves liable to amercements because of absence if Tenure laid not a special obligation upon them comes an Act of Parliament which makes it penal to refuse or rather delares that the Law was so of old All singular Persons and Communalties which from henceforth shall have the Summons of Parliament shall come from henceforth to the Parliament in the manner as they be bounden to do and hath been accustomed within the Realm of England of old times and every Person of the same Realm which from henceforth shall have the said Summons be he Arch-Bishop Bishop Abbot Prior Duke Earl Baron Banneret Knight of the Shire Citizens of City Burgeis of Burgh or other singular Person or Commonalty do absent himself and come not at the said Summons except he may reasonably and honestly excuse himself to our said Sovereign Lord the King he shall be amerced and otherwise punished as of old times hath been used to be done in the said Realm in the said Case This shews that of old time they who were Summon'd by the King or chose by the People ought to come to Parliament but this being before any Patent or Writ of Creation to the Dignity of Peer and to a Seat in Parliament supposes no obligation upon the King to give any special Summons indeed where he had granted Charters of exemptions from common Summons there he had oblig'd himself if he would have them oblig'd by what pass'd to give special Summons were it not that they might have been chose in the Counties particularly which alters the case from what it were if every body came or might come in their own Persons some by special others by general Summon's but this exemption and particular Summon's after it made none Peers that they found not so but they that came were to come as they were Bounden and insuch manner as had been accustomed of old Which is pregnant with a negative as if it were in such manner and no other Manner Quality or Degree and thus they us'd that to come as assistants to the Lords continue even at this day to come in the same manner and no otherwise notwithstanding particular Writs of Summon's eodem modo as to the Lords of Parliament This is further observable that in the forecited Statute and Records Bannerets are spoken of as above Knights of the Shire and these were certainly some of the Pares Baronum which often occur to us If these receiv'd their Summons to Parliament it seems as it had been of old accustomed they were to have Voices with the Barons It may be urg'd That they which held by Barony and their Peers Pares Baronum were by the Law exempted from being of Common Juries because they were Lords of Parliament And therefore they were to come of course and right To which it may be answerered That is a priviledge above the rest of their Fellow Subjects to be own'd by them as being in common intendment likely to be call'd to Parliament and therefore so accounted by the courtesy of England but what do's this signifie to bind the King who is above the reach of an Act of Parliament unless
and thereby assuming the exercise of justice without the Kings authority is certainly a much greater offence against the Kings Crown and dignity than barely the appeal however either might have been Crimina laesae Majestatis against the Crown and Royal dignity and yet not capital as Glanvile shews But this is further observable that the King himself appeal'd to the Pope in this very controversie between him and Becket Hâc igitur celebri celebratâ acceleratâ appellatione misit Rex misit Archiepiscopus nuntios ad Dominum Papam And according to Grev. the Bishops appeal'd to the Pope against Becket with the great approbation of the King Wherefore the Article in the Constitution of Clarendon touching appeals the first declaration that I find of the law in this point comes not up to Beckets appeal De appellationibus si emerserint ab Archidiacono debent procedere ad Episcopum ab Episcopo ad Archiepiscopum Et si Archiepiscopus defuerit in justitiâ exhibendâ ad Dominum Regem est perveniendum postremò ut praecepto ipsius in Curiâ Archiepiscopi controversia terminetur ita quod non debet ulterius procedere absque assensu Domini Regis This is of causes begun in ecclesiastical Courts these were not to go further than the Archbishops Court that is not to the Pope without the Kings licence now admit an appeal had been before the Pope with the Kings licence yet it might have been Crimen laesae Majestatis to put the Popes sentence in execution without new licence had but where a matter lay not in these inferiour Courts as Becket's did not whether the appealing in such a case had been against the Law then I make a doubt I am sure it is not prov'd at least that 't was capital I know not of any greater penalty than a Premunire ever annext to it till the Reformation But if it were capital from the beginning 't would not be any thing to the purpose here because Becket was not impeacht for appealing I cannot but charge this Author with a great deal of artifice in this place and of much labour to reconcile things as I should think very disagreeing he tells us that according to Fitz-Stephen Becket was accus'd of Treason and the Bishops sate together with other Barons and because it did not come to a Sentence of death after a great debate between the other Lords and Bishops about pronouncing the sentence the Bishop of Winchester did it here he jumbles together what in another place he rightly divides he takes it right that there were Two causes the one that of John the Marshal the other that which he would make capital in the first the Bishops did certainly sit in judgement there the Bishop of Winch. pronounc'd the sentence as Mr. Selden who this Author confesses has printed the proceedings of this judgement very exactly shews out of Stephanides for this our Author do's not pretend that Becket was accus'd of Treason and yet he says that the Bishop of Winch. gave sentence where he was accus'd of Treason nay though his own Author Stephanides is express that upon the second charge which contain'd the suppos'd capital matter the Bishops withdrew quidam Vicecomites Barones secundae dignitatis were taken into the Court. Thus I think I have shewn that the King did not declare at Northampton that the Bishops were bound by virtue of the Constitution of Clarendon to be present and to give their votes in cases of Treason as such were capital but rather it not being a Capital case upon which the King demanded judgement that therefore the Bishops were by that Constitution oblig'd to be there Admitting that this constitution is no law prohibiting Clergy-men to Vote in Capitals only obliging them to the duty of their tenure and leaving them to act in matters of blood according as they thought themselves bound by the Canons Yet I think herein it appears that those Canons were received by the temporalty and so became laws But not to insist upon this the question here is 1. First What the Canon law prohibited 2. What force that prohibition has at this day 1. The Author of the Grand Question has I conceive misrepresented the sense of Lanfranc's Canon concerning this matter which he has render'd thus That no Bishop or Clergy-man should condemn a man to death or give vote in the sentence of condemnation Here he confines the prohibition to the final judgement only and yet says Lanfranc had brought the Canon of the Eleventh Council of Toledo into England So that Lanfranc's and that of Toledo he yields must speak the same thing That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est nequi praesumptionis motibus agitati aut quod morte plectandum est sententiâ propriâ judicari praesumant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas praecipiant His à quibus Domini sacramenta tractanda sunt undeniably reaches to Bishops as well as inferior Clergy and so removes the cavil which many make upon some Canons or Laws mentioning Clerk or Clerus only Here 't is laid down for a principle non debent agitare judicia they must not to debate upon such judgements or try such causes that is as Petrus Blesensis expresses it eadem tractare disputando disceptando de 〈◊〉 Now can we think the wise Council of Toledo understood sense so little to declare that Clergy-men ought not to debate about or try such causes and therefore should prohibit only the final judgement nay 't is very clear that they agreeably to the maxim they receive forbid them quod morte plectendumest sententiâ propriâ judicare to judge of or try the matter or cause in their own persons not but that where the King gave them judicium vitae membrorum as we find in Linwood they might delegate authority to others to judge without breach at least of after Canons But this of Toledo I conceive wholly shuts them out from the cause or tryal of it And according to this very Author this Canon of Toledo is to be taken as explanatory of Lanfranc's which is much shorter and less express yet comes to the same in the signification of the words as well as in the intention of the Council which received the above-cited Canon of Toledo Lanfranc's we have in these words Iterum ut nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandis judicet vel judicantibus suae autoritatis favorem accommodet This speaks of the man guilty of a crime worthy of death or loss of member the other of the cause or matter which are tantamount but by this they were not to judge themselves nor sit by while others judge or any way contribute
free customes of the Villae appears from the Plea of the men of Coventry the Inhabitants of that Villa in 34 Ed. 1. They plead and their plea is allowed That in the times of that King and of his Progenitors which to be sure reaches to the custome before Magna Charta they us'd not to be taxt as Citizens Burgesses or Tenants of the Kings demesn but only along with the Community of the County of Warwick that is with the whole County and not with the Cities Burroughs and antient demesn of the Crown So that when the Commune Concilium in K. John's Charter or the Kings Tenants in chief laid any charge or gave an Auxilium or aid this could not affect them but when they came and agreed to any charge with the Body of the County as part thereof then they were liable and no otherwise and indeed the stream of Records of both H. 3. E. 1. and E. 2. evidently prove all this but let us touch the Record Ex parte eorundem hominum Regi est ostensum quod cum villa praedicta Civitas Burgus seu Dominicum Regis non existat ut homines villae predictae tanquam Cives Burgenses seu tenentes de Dominico Regis in aliquibus auxiliis Tallagiis seu contributionibus Regi seu Progenitoribus suis concessis non consueverunt talliari sed tantum cum Communitate Com. Warwic c. No man will imagine surely the meaning of this Plea to be that the Vill or Town of Coventry was not lyable when the Kings immediate Tenants taxt themselves only but they were when such Tenants taxt the whole County for that would have been an admittance of a grievance beyond that against which they petitioned for by that the Kings Tenants might have excused themselves and have laid the burthen upon them who were not Tenants in Chief so that it would have been their greatest advantage to claim the priviledge of being Tenants to the Crown and in that capacity to have had a right and priviledge to be parties and consenting to all charges and grants laid upon them and given to the Crown and for that they might have prayed in Aid and pleaded King John's Charter nor should we have met with so many Records in those times whereby so many pleaded off the Tenures in Capite as chargeable and burthensome nay even the tenure of Barony it self but on the contrary every one would have given the King great summs of money to have changed their tenures to have held in Capite ut de Coronâ when indeed it clearly appears they did the contrary because they not only could save their individual Estate if they had the sole power of making Laws and giving Taxes but would have encreased and better'd them by their Services and Tenures which capacitated them to lay charge upon all the Barons Knights and Freeholders of England who held not in Chief and who were by far the major part many of which held of the great Lords by such and such duties or payments pro omni servitio and beyond that were not lyable without their own consents to be charged and all this is demonstrative if any will read over and consider the infinite number of pleadings in the Ages we speak of viz. for some few instances that A. B. holds of C. D. of his Mannor of E. by paying 10 s. rent or one bow and arrow or one horse or the like pro omni servitio or holds of the Honour or Castle of D. to find one or more men bene paratos cum Armis to defend such a Postern-gate or such a Chamber there when summon'd by the great Lord pro omni servitio but to charge them without their assent further was to overthrow the very Salvo in the end of Henry the Thirds and in King Johns Charter which runs thus Salvae sint Archiepiscopis Episcopis Abbatibus Prioribus Templariis Hospitalariis Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis personis quam secularibus omnes libertates consuetudines quas prius habuerunt If King John's Charter in the particular of which our dispute is introduced a new law then we must examine only what Custome or practice followed upon it or who made the Common or Great Councils of the Nation from that time to the 49th of Henry the 3. that is were of right to come or to have notice of the Councils sitting juxta tenorem magnae Cartae suae as is insisted upon in the 39th of Henry the 3. as above mentioned That they were more than Tenants in Capite which made the Commune Concilium in King Johns Charter the Record of the 38th of this King Henry where two for every County besides Tenants in Chief were summon'd were enough to evince We there find Writs to all the Sheriffs of England to summon the lesser Tenants in Chief the omnes alios qui in Capite tenent de nobis as in K. Johns Charter and two more to be chosen by every County respectively the precepts recite though 't were falsum deceptorium as the Historian tells us that the Earls Barons caeteri Magnates regni had promis'd to be at London with Horse and Arms to go towards Portsmouth in order to passing the Seas with the King for Gascony against the French King who then was in war with King Henry Mandamus says the Record quod omnes illos de Ballivâ tuâ qui tenent viginti libratas terrae de nobis in Capite vel de aliis qui sunt infra aetatem in custodiâ nostrâ ad idem distringas which was to perform their personal services which not requiring their crossing the Seas here is a suggestion that 't was by the advice of the Great Council But besides the services of Tenants in Chief who were to be out upon their charges no longer than forty days the King wanted a supply of moneys to maintain them beyond that time and therefore for this he directs a representative of the several Counties Tibi districtè praecipimus quod praeter omnes praedictos venire faciatis coram concilio nostro apud West in Quind Paschae prox fut quatuor legales discretos milites de Comitatibus praedictis quos iidem Com. ad hoc elegerint vice omnium singulorum eorundem viz. duos de uno Com. duos de alio ad provid unà cum militibus aliorum Com. quos ad eund diem vocari fecimus quale auxilium nobis in tantâ necessitate impendere voluerint These were to come vice omnium singulorum instead or in the place of all the Free-holders of the County which asserts their personal right but further Et tu ipse militibus aliis de Com. praed necessitatem nostram tam urgens negotiam nostrum diligenter exponas ad competens auxilium nobis ad praesens impendend efficaciter inducas Ita quod praefati quatuor milites
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
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
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
numerositate cuncti Majores adunati and Regnum Angliae All at several times at the Curia de More At other times we have Commune Concilium Gentis Anglorum Clerus populus congregatus the same called Commune Concilium Baronum Regni Angliae Regni Nobilitas sua Sanctione adunatâ Concilium Magnum Magnum placitum apud Northamtune congregatis Omnibus Principibus Angliae that is Baronibus that is Clero Populo Though 't were a pleasure to dwell upon this King's Reign yet it is needless to insist upon further proof that his Councils consisted of more than Tenants in Capite and great Officers King Stephen was elected King a Primoribus regni cum favore Cleri Populi Clericorum Laicorum universitate ab omnibus viz. tam Presul quam Com. Baron Stephanus his et aliis modis in Regno Angliae confirmatus Episcopos et Proceres sui regni regali edicto in unum convenire praecipit cum quibus hoc Generale Conciliam celebravit This to be sure was more than the Ordinary Curia The eighth of July two years after a Council was held at Oxford which broke not up till September following this was Conventus Magnatum was not on the ordinary Court day yet perhaps was not a Great General Council It was only for matter of ordinary Justice some of the Laity had complain'd of two Potent Bishops that fortified their Castles as if they intended to rule over them by the Temporal as well as spiritual Sword and had made a Catholick Interpretation of St. Peter's ecce Duo Gladii It seems the Bishops Plea was that this was no Ecclesiastical Synod that is in the true sense not Assembled for Ecclesiastical but for Civil Matters but in their sense that they would be tryed by the Canons and Canonical Persons the Debate is put off to be determined in a General Council appointed to be at Winchester Here the Clergy set up for themselves having the Popes Legat thought themselves a body sufficiently entire without that other part of the Clerus Gods Inheritance which used to make up eventhese Assemblies with much ado they first let in the Nobility Proprietors of Land Omnes Barones in eorum communionem jamdudum recepti They had not sate four days but the Londoners-Citizens demanded to be admitted amongst them as Citizens or Traders they were no part of the Nobility 't was a disparagement for the Son of a Noble Man a Freeholder to be married to a Trader And this our constitution agreed with that of Poland where Mercator and Nobilis were alway contradistinct and there is a remarkable Clause in one of their Statutes Nobiles appellandos censemus qui licèt matre Populari patre tamen Nobili sunt procreati quorum tamen parentes ipsimet vivant vixerint ad instar aliorum Nobilium in regno ut supra non exercuerint vel exerceant eas artes actiones quas communiter cives qui in civitatibus morantur exercere solent per contrarium enim usum nobilitas ipsa in popularem plebeiam conditionem transire solet and with them the Inhabitants of Cities which were sicut Proceres sent Deputies whereas the Possessionati the Nobles came to the Great Councils in person There came to the Council above-named a Representative in the name of the whole City of London Feriâ quartâ venerunt Londinenses in Concilium introducti causam suam eatenus egerunt ut dicerent missos se a communione quam vocant Londiniarum but the Clergy carried it with an high hand and told them that it became not them who were principal men in the Kingdom and sicut Proceres as it were Nobles to favour them who forsook their Lord which I think was meant of the Pope and his Clergy to be sure they excommunicated the King and those that held with him for medling in their matters but they had much ado to quiet the City of London for the haughty Answer they gave them They that were at this Assembly came not as the King's Tenants or because of any Office in his Court. Notwithstanding all the Canonical Thunder at a great Council possibly of Lay-men only Habito post modum Concilio coram Primoribus Angliae statutum est ut omnia per Angliam Oppida Castella Munitiones quaequae in quibus secularia solent exerceri negotia Regis Baronum suorum juri cedant Whereby all the strong holds which Clergy-men had were subjected to the Dominion of the Laity whether only the King's Barons Barones Curiae suae were to be Judges in the disposal is needless to determine But Statutum est coram Primoribus Angliae This was made a Law by all the Baronage of England We have several other Councils in this King's Reign In the seventh of his Reign there is an Act of Recognizing Matilda the Empress her Title to the Crown by all but the men of Kent and 't is not improbable that they looking upon themselves as a freer People than the rest thought it was not fit for them to own any Title but meer Election Maltida Imperatrix ab omni gente Anglorum suscipitur in Dom. exceptis Kentensibus In the ninth the Proceres are Summoned per Edictum Regium to St. Albans The same year is a great Council at Northampton called Parliamentum In the seventeenth Generale Concilium convocavit at London to which were called the Bishops and all the Proceres In the ninteenth and last of his Reign all the Principes met at Oxford ad octavis Epiphaniae and soon after the Colloquium at Oxford they met at Dunstaple And he held another great Council the same year at London on Michaelmas tam pro negotio Regni quam provisione Eccles Ebor. Cum Episcopis Optimatibus terrae this was both for Ecclesiastical Civil Matters The Council of Clarendon with that part of its Constitutions which hath been much controverted of late will detain me and the Reader too long to examine the several Instances of great Councils or of ordinary Courts in this King's Reign By the examination of this possibly I may give some additional light to what I have already represented The end of this Convention was to vindicate the Crown and Kingdom of England from the usurpations of the Clergy who insisted upon Exemptions and an uncontroulable license to do ill upon pretence of the sacredness of their persons Whereas the King would allow them no other priviledges or exemptions than what his laws had given them This Council was compos'd of more than tenants in chief 't is call'd a Great and full Parliament Generale concilium the parties present are under divers denominations all coming to the same Rex Arch. Ep. Ab. Pr. Com. Bar. Proceres Regni as M. Paris
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
Argument that there was no law against such practice And besides this being brought to shew the meaning of the constitution of Clarendon which speaks only of the Curia Regis this has no colour of a proof because they might have handled such matters in their own Courts where the King gave them judicium vitae membrorum as Bracton has shewn us but that they did not in the Curia Regis we are to believe till express authority be brought to shew that they did One of the Editions of Blesensis has but quidam some of them only could dispense with the obligation of what nature the obligation was I shall soon shew and will usher it in with the judgement of Mr. Selden who was best acquainted with the several copies of this constitution and with those laws which were the ground of it perhaps of any man since the making the constitution The meaning of it is says he that all Bishops Abbots Priors and the like that held in Chief of the King had their possessions as Baronies and were accordingly to do all services and to sit in judgement with the rest of the Barons in all cases saving cases of blood The exceptions of cases of blood proceeded from the Canon Laws which prohibited Clergy-men to assent to such judgements But we are told that Hen. 2. in the Parliament at Northampton declar'd that Bishops were bound by virtue of the Constitution of Clarendon to be present and to give their Votes in cases of Treason That this was only a Curia Regis no Parliament I have shewn That it should be affirmed that the King then press'd the Bishops to give their Votes in a Capital case as the Author supposes every crimen laesae Majestatis then to have been I wonder because 't is apparent from the circumstances that the King prest for a final judgement and therefore could not urge that as the duty of their tenure when even according to this learned man the Canons prohibited their pronouncing final sentence and the King at Clarendon out of regard and reverence to the Canons of the Church requir'd only that they should act in such causes till the cause was ripe for sentence not that they should stay at the Sentence that point he was content to yield them and he himself shews us out of Fitz-Stephen that the Bishops look'd not on the matter as Capital for they did not urge the Canons in the case but they excus'd themselves upon the account of the Arch-Bishops prohibition And the King reply'd that viz. that Prohibition had no force against the Constitution of Clarendon which was in effect to say you have no manner of pretence no Canon forbidding you to pass judgement upon Becket and therefore according to the Constitution of Clarendon you ought interesse judiciis Curiae Regis at this time Notwithstanding the plain sense of all this we find a very artificial management of Fitz-Stephens and other authorities 1. As if Becket were accus'd of a Capital matter it being call'd Crimen laesae Majestatis 2. As if the crime he was accus'd of was appealing to Rome and that such appeal was treason by the ancient Common law before any Statutes made 1. I will readily grant that in the language of that age Becket was accus'd or impeach'd of Crimen laesae Majestatis but that all Crimina laesae Majestatis were then capital Glanvile who was Chief Justice in that Kings reign denies Crimen quod in legibus dicitur Crimen laesae Majestatis ut de nece vel seditione Personae Domini Regis vel regni vel exercitus occultatio inventi thesauri fraudulosa placita de pace Domini Regis infracta c. Hereby every breach of the Kings Peace was Crimen laesae Majestatis every breach of the laws by Acts of injustice is a breach of his peace contra pacem Coronam therefore Becket having denied justice to John the Marshal and refusing to answer the King who charg'd him in account especially standing in contempt of the Kings Court was guilty of this crime Indeed Glanvile when he has named Homicide malicious firings and other crimes adds Et siquae sunt similia quae scilicet crimina ultimo puniuntur supplicio aut membrorum truncatione As if no crimes were within this name but those which drew after them capital punishment but that is certainly to be meant of such as are not there specified that is all such like crimes provided they are capital in the punishment annext by law are Crimina laesae Majestatis though neither homicide nor firing c. nor any direct and open breach of the peace 'T is evident that he confines not placita de pace infractâ to homicide and those that follow for he takes in assaults and batteries de verberibus de plagis etiam Which he says are tryable by the Sheriff in default of Mesn Lords unless the Indictment be in the Kings name Nisi accusator adjiciat de pace Domini Regis infractâ But it appears from Fitz-Stephen that Becket was not impeach'd for appealing to Rome even upon his second Impeachment but pro ratiocinio Cancellariae reddendo to which he pleads that the King remitted him when he was made Arch-bishop that he then was quietus solutus ab omni Regis querelâ But further that he was called only to answer in the cause of John the Marshal in which he complained that he had had hard measure but for the last neque in causâ sum ratiocinii neque aliquam habui ad eam citationem still the King urges the Proceres to proceed to judgement against him he finding them ready to comply with the King appeals to Rome and strictly enjoyns all his suffragan Bishops and others not to meddle in the matter Upon this redeunt ad Regem Episcopi in pace à judicando Archiepiscopo excusati à Baronibus seorsim sedent nec minus à Comitibus Baronibus suum exigit Rex judicium evocantur quidam Vicecomites Barones secundae dignitatis c. What is here like the pretence of his being accused in a capital matter and the Kings urging the Bishops to judge him notwithstanding a capital accusation Nay further admit that he had been impeach'd of appealing to Rome which 't is evident both from Fitz-Stephen and Gervase that he was not I question whether it had been capital then or whether the Lord Cook says that such an owning of the Popes Power was Treason by the ancient Common Law before any Statutes were made which I conceive he do's not The most which I find in him towards this point is of a Judgement in the 30th of Edw. the First where 't is resolv'd that a subjects bringing in a Bull of excommunication against another subject and publishing it to the Lord Treasurer of England was by the ancient Common Law of England Treason Now this publishing a Bull of excommunication
the great Council of the Nation and so became incorporated into and part of the Laws of England 3. And that they running in the terms of Judicia agitare which in the common intendment is of Ordinary Justice and the Constitution of Clarendon particularly referring to the Ordinary Court of Justice except it can be shewn that Clergy-men Voted in the Ordinary Curia the Court of Tenants and Officers whilst that Court continued there is not one President against this sense of the Law If it be said they have Voted in Bills of Attainders which in effect are Judicia Sanguinis Still these are not within the ordinary Justice however if they are Judicia Sanguinis in a strict sense let them who are concerned answer the evading the sense of the Law I shall give one plain instance of a great Council and another of an Ordinary Court in this Kings Reign and hasten to the next Circa festum Sancti Pauli venit Dominus Rex usque Northampton magnum ibi celebravit concilium de statutis Regni sui coram Episcopis Comitibus Baronibus terrae coram eis per concilium Comitum Baronum Militum hominum suorum hanc subscriptam Assisam fecit c. This was more than an Ordinary Curia and there being the Barones terrae the Milites and homines sui are not to be taken for his feudal Tenents but his Liege People For his Ordinary Curia we find a clear President in the Glossary of that great Antiquary Sir Henry Spelman who if he had lived to finish the second part would certainly have given a compleat Body of Antiquity We find in him the form of a fine levy'd in the Ordinary Curia Haec est finalis conventio facta in curia Domini Regis apud Clarendum anno 33. Regni Regis Henrici Secundi coram Domino Rege Joh. filio ejus c. aliis Baronibus fidelibus qui tunc ibi praesentes erant c. Richard the first was spirited to Jerusalem and therefore we must not expect many instances from him of the one sort or t'other but I am sure the Ecclesiastical Council at Pipewell in Northamptonshire could not be the Curia de more Sir Hen. Spelman calls it Concilium Pambritanicum and Bromton tells us in general who were at it amongst others there were all the Abbots and Priors of the Kingdome but it is very manifest that they were not all Tenants in chief many holding in purâ perpetuâ eleemosynâ and others of temporal Lords as appears by the Statute of Carlisle 34 Ed. 1. and therefore this was not a Court of the Kings Tenants and Officers only But then in November following he assembled a full Parliament at London Rex congregatis Episcopis Comitibus Baronibus Regni sui Parliamentum habuit tractatum This was manifestly more than the Curia Regis A great Court was held the next year at Bury in Normandy Ricardus Rex Angliae Festum nativitatis Domini quod secunda feria illo anno evenit in Normanniâ apud Burium cum primatibus terrae illius celebravit It seems he had held another Court in England for this was the second Court but the great Council at London was not of either of the Feast days But let us see whether this distinction is observable in the reign of that Prince upon whose Charter our dispute is He was crowned in the presence of a larger representative than the Interpreters of his Charter have put upon us A populo terrae susceptus est King John in one of his Charters says he came to the Crown jure hereditario mediante tam Cleri quam populi unanimi consensu favore Congregatis Arch. Ep. Comitibus Baronibus atque aliis omnibus This explains who are meant by the Magnates Regni which assembled at London in the second of his reign which the Historian not having mentioned any feast day or saying barely that the King held his Court is to be taken for the Great Council But the Records give further light they shew us that there the Queen was Crown'd de communi assensu concordi Voluntate Arch. Episcoporum Comitum Baronum Cleri populi totius regni nor is it a wonder that the Queen being a Foreigner had such a formal consent of the people to confirm her Queen for there had been at least the pretence of a law against any King of England's marrying a foreigner without the consent of the people and therefore Harold pleaded against William the First when he urg'd his oath for placing the Crown upon William's head and marrying William's daughter that he could not do either Inconsultis Principibus or absque generali Senatus populi conventu edicto as another Author explains the Council the consent of which Harold pleaded to be necessary From London King John issues out his summons to William King of Scots to attend him at Lincoln which summons he was obliged to obey as one of his Tenants in Chief but thither came more than Tenants in Chief nor was it the place or time for the Curia de more and therefore the Curia and General Council was united the King of Scots coming as attendant upon the Curia Convenerunt interea ad colloquium apud Lincolniam Rex Anglorum Johannes Rex Scotorum Willielmus cum universà nobilitate tam Cleri quam populi utriusque regni Vndecimo Kalendas Decembris As under the Nobility the Senators of Scotland were comprehended all the Free-holders at that time beyond dispute 't is probable at least that our Nobility was of the same extent And for the probability of the assembling of so great a body as the proprietors of both Kingdoms must have made even then 't is observable that the meeting was without the walls for the City was not able to hold them The King of Scots did homage upon a mountain in conspectu omnis populi before all the people the united body of Free-holders of both Kingdomes In the third of his reign this King held his Curia on Christmass at Guildford and this was no more than his Military Council Multa militibus suis festiva distribuit indumenta that is in festival bounty he gave many Coats to his Souldiers And that this was no more is very evident in that the Arch-bishop of Canterbury to shew himself a Prince in the Ecclesiastical Empire set up the like Court of his Tenants and Dependants Hubertus verò Cantuariensis Arch. quasi cum Rege à pari contendens eodem modo fecit apud Cantuariam At Easter the King held his Court at Canterbury where the Arch-bishop by sumptuous entertainment of the King hop'd to atone for his former Vain-glory. On Ascension-day the King issues out his summons from Theokesbery for the holding his ordinary Court at Whitsontide following at
the most was as Collectors under the King of what was duly charg'd upon their Tenants but generally I take it they did no more than certifie how many held of the King within their Precinct as the Jurisdiction of great Men extended its self within such a compass they were best able to give the King an account of those that were liable to any payment within that Ball'ia And thus in Henry the Second's time the King issues out his Precept That quilibet Praesul et Baro should certifie quot Milites tenerent de ipso Rege in Capite this was for Escuage towards the Marriage of the Kings Daughter to which all that held in Capite were lyable and here the great Lords were to certifie for the Resiants within the compass of their Leet or Ball'ia though they held not of them but of the King upon such Certificate according to the number they return'd so many were enter'd in the Exchequer Rolls under the name of such a Lord and thus we find it expresly in the Case of the Prior of Coventry Compertum est in Rotulo 29 Regis H. tertii sub titulo de auxilio ad primogenitam filiam Regis maritandam viz. de quolibet Scuto 20 s. Contineri sic Prior de Coventry reddit compotum de 10 l. de decem feodis de quibus quidem decem libr ’ Willi ’ Tunstall Vic. dicti Comitatus in compoto suo de Anno 32 ipsius Regis H. oneratus fuit Here so many Knights Fees are enter'd under the Prior's name but the Sheriff collected for them Upon this the Prior pleads Hoc ei non prejudicat in hac parte dicit enim quod auxilia illa non fuerunt nec censeri possunt esse servitia imò quaedam subsidia per Magnates et communitatem régni spontaneâ et merâ voluntate Regi concessa et tam de tenentibus aliorum quam de tenentibus de Domino Rege levanda 'T is observable the ground of demanding for so many Knights fees was the entry on the Roll in the 29th of Henry the 3d. and he pleads That at that time the Coumunitas Regni were Parties to the Grant and that it was charg'd by and lay upon more than Tenants of the King in Chief but that he was chargeable upon the account of Aid or Service with but two Knights fees which he says may appear by the Certificate of the then Prior De feodis quae ipse tunc Prior tenuit de veteri feoffamento that is the number of Knights with which he was to serve according to the first infeodation from the Crown de novo which is the number of Knights fees rais'd under him by sub-infeodations the first were all that he could be answerable for but the second could not be charg'd without their own consent the charges upon such were Quaedam subsidia per magnates communitatem Regni spontaneâ merâ voluntate Regi concessa And thus we find the Records 1. That the Kings Tenants were answerable no farther than according to the vetus feoffamentum So in the 26th of Henry the 3d. The Sheriff is requir'd to shew cause why he distrain'd a man for two Knights fees who pleads that he held but one de veteri feoffamento Monstravit c. Quod cum non teneat de veteri feoffamento nisi feod unius Militis in comitate tuo tu exig c. Quantum pertinet ad feod duorum Militum eâ occatione averia sua cepisti c. 2. That Lords of Mannors could not charge their Tenants without their consent Rex omnibus liberè tenentibus de Episcopatu Lond. Reciting the great Debts which the Bishop had contracted in the Kings Service the King earnestly entreats the Bishops Tenants to make a contribution towards the supply of his necessities which surely need never have been if the Bishop had by virtue of the Feudal Law Power of charging his Tenants or raising upon them what he had pleas'd Unde vos affectuosè rogamus quatenus amoris nostri intuitu efficax ei faciatis auxilium ad debita sua quibus pro favore nostro honoratus est Ita quod exaudita in hac parte prece nostrâ precibus vestris pro loco tempore nobis porrigendis aures benignas exhibere debeamus 3. When there was a Grant of more than from the Kings immediate Tenants whose Grants were in the nature of Services if it reacht beyond the vetus feoffamentum 't was Spontanea voluntate suâ sine consuetudine 2. But there is a knocking Record which I wonder I find no where insisted upon to prove the Kings Tenants to charge others Sciatis quod Arch. Episc Abbates Priores Comites Barones omnes alii de Regno nostro qui de nobis tenent in Capite spontaneâ voluntate suâ sine consuetudine concess nobis efficax auxilium c. Undeprovisum est quod habeamus de singulis feodis militum wardis quae de nobis tenent in Capite duas marcas ad praed auxilium Here was a Grant only from Tenants in Capite and yet it may be urged that other Records explaining this shew That the Grant reacht to the novum feoffamentum as well as the vetus But it will be said That I make an Argument for them which they are wiser than to offer since the Records of this very cleerly overthrow it yet if there be no better I may offer this that they may cultivate and improve it The matter of Fact I take it was That the Tenants in Capite Granted by themselves a charge upon the vetus feoffamentum and the Record which mentions their Grant goes no farther but another Record of a Grant from Ecclesiastick Tenants in Chief is more express and explains the other Cum peteremus à Praelatis Angliae quod nobis auxilium facerent pro magnâ necessitate nostrâ de quâ eis constabat viz. Epis Abbatibus Abbissis Prioribus Priorissis qui de nobis tenent in Capite ipsi nobis liberaliter concesserunt auxilium tale viz. De singulis feodis Militum suorum 40 s. de tot feodis de quot ipsi tenentur nobis respondere quando nobis faciunt servitium militare This is express That the Tenants in Capite Granted only for so many Knights fees as were of the vetus feoffamentum that is so many as they were to answer for when they were to perform their Military Services to the Crown But whereas in the 19th the Tenants in Capite were said to have made such a Grant and at the same time there was a Grant which reacht to the Tenants de novo feoffamento the Record mentioning that shews us that more than Tenants were Parties to the Grant Rex Vic. Somer Salutem sciatis quod Comites Barones omnes alii de toto regno nostro Angliae spontaneâ voluntate suâ sine
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
ex parte Episcopi Wign ’ Com. Leicester Gloucester ac quorundam aliorum Procerum Regni nostri vocati sunt tres de singulis Comitatibus nostris quod sint coram ipsis ad Sanctum Albanum secum tractaturi super communibus negotiis regni nostri Here the Lords of the Council exceeded their Power and as if the King were a Cypher in the Government would have the Knights from the several Shires come before them the King not without reason jealous of his Honour commands That they which had been summoned to St. Albans should come to him at Windsor Nobiscum super premissis colloquium habituros Venerab Pater G. Eboracensis Arch. Angliae Primas et alii Praelati Magnates Milites liberè tenentes et omnes alii de regno nostro servitium fecerunt et auxilium ultra quā tēporibus retractis in aliis sūmonitionibus exercitus nostri facere consueverunt This the King promises should not be drawn into consequence upon an extraordinary occasion they that were not accustomed to perform Military Service did it then and they that did owe Services did more than they were oblig'd to by their Tenure all as well those that held not of the King in Chief as those which did joyn'd together and made a general charge upon the Kingdom of Subsidium et auxilium In the 48th of this King there was a right Understanding between him and his People the Record sayes Haec est forma pacis a Domino Rege et Domino Edwardo filio suo Praelatis et Proceribus omnibus et Communitate regni Angliae communiter et concorditer approbata c. Amongst other things 't was agreed Ad reformac'onem status regni Angliae That they should chuse 3 men who should have power from the King to name Nine that should be the Kings standing Council and if any of the three displeas'd the Community si videatur Communitati Prelatorum et Baronum one or more was to be plac'd in their room per consilium Communitatis Praelatorumet Baronum And the Record concludes Haec autem Ordinatio facta fuit apud London de consensu voluntate et praecepto Domini Regis necnon Praelatorum Baronum ac etiam Communitatis tunc ibi praesentium The Council so chose as aforesaid were to advise the King in hiis quae spectant ad Regimen Curiae et regni And at that time or immediately upon it Rex Statuit et ordinavit as Mr. Camden tells us whose authority I shall enforce That none of the multitude of Barons should come to Parliament but they to whom the King vouchsaf'd to send his Special Summons or were chose by the People in pursuance of the alia illa Brevia What I have already drawn from the bowels of Antiquity makes me think that Mr. Selden was arriv'd to this maturity of Judgment when he put out the first Edition of his Titles of Honour wherein he received without doubting the Testimony of the learned Clarenceulx Mr. Camden concerning the new modelling of the Great Council of England which Mr. Camden tells us he has out of an Author old enough to know the truth of his Assertion upon this authority Mr. Selden took it then pro concesso that the alteration was as is there shewn and began in the 48th of Hen. the Third and that the first Summons accordingly was the 49th which he illustrates by the like many years after in Scotland Item The King with the Consent of the hail Council generally hes Statute and Ordained That the small Baronnes and free Tennentes neid not to come to Parliaments nor General Councels swa that of ilk Shirefdome their be send chosen at the head Court of the Shirefdome twa or maa wise men after the largeness of the Shirefdome All Bishops Abbots Priors Dukes Earls Lords of Parliament and Banrets the quhilks the King will be received and summon'd to Council and Parliament be his Special Precept This I conceive is an illustration of Mr. Camden's Authority Ad summum honorem pertinet speaking of the word Baro. Ex quo Rex Henricus ex tantâ multitudine quae seditiosa et turbulenta fuit optimos quosque rescripto ad Comitia Parlamentaria evocaverit ille enim ex satis antiquo authore loquor post magnas perturbationes et enormes vexationes inter ipsum Regem et Simonem de Monte forti alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionis dirigere venirent ad Parlament ’ suum non alii nisi forte Dominus Rex alia illa brevia dirigere voluisset sed quod ille paulo ante obitum incepit Ed. 1. ejusque Successores constanter observarunt unde illi soli Regni Barones censebantur qui ejusmodi summonitionum ut vocant rescriptis ad Comitia evocaverant donec R. 2. Joannem de Beauchamp de Holt Baronem de Kiderminster diplomate dato 10. Octob. anno nostri sui 11. creaverit The substance of this is that the word Baro was applicable to the whole people the Body of Free-holders especially as assembled in Parliament till the King confer'd particular Honour upon some by his especial Writs of Summons and none other came but in pursuance of the aliae illa brevia that is the Writs for Elections in Counties Cities and Boroughs that this was begun to prevent those Tumults of which both the King and the Barons had Fatal experience That this was Enacted in due form of Law though the Form is not express'd yet 't is imply'd under the Statuit ordinavit being words of Legislation and for confirmation that it was so it has been followed ever since And that the Barons by Creation who have ever since their Creation had Right to sit as of the higher Order previous to their sitting or express Summons came not in till the 11th of Richard the Second Against this Mr. Selden whose insight into Records and MS's made him take it ill that any should escape his view has rais'd these objections 1. In all occurrences that I meet with since the Grand Charter of King John I find no mention of any interest that those other Tenants in Chief eo nomine had in Parliament who doubtless were the Persons that were excluded from it when soever such Law was made Tanti viri pace This objection comes not nigh the point it not being prov'd at least that King John's Charter gives the Form of a Parliament or General Council or of any other than a Council of the Kings Tenants for matters belonging to their Tenure and this sense Mr. Selden himself confirms when he says that he finds not that the Minores Barones in Chief or those other Tenants in Chief eo nomine had any interest in Parliament now not having any peculiar interest what need of a
after Citizens l. 11. put a Comma after amongst them p. 68. l. 14. r. Matilda p. 206. l. 2. r. plectendum l. 3. r. judicare p. 217. l. 11. r. affuerunt p. 228. l. 9. r. Doveram p. 237. l. 7. add the before free Customs l. 8. dele the 2d Sheet of p. 237. l. 13. r. militibus p. 238. l. 9. r. tenants us'd p. 240. l. 20. r. de scuto l. 28. r. the for their p. 241. l. 11. dele s after acquaint l. 22. r. record p. 245. l. 2. r. negotium p. 246. l. 5. r. retroactis p. 247. l. 23. r. his instead of this p. 251. margin r. proprietariis p. 255. r. Baro l. 21. put a Comma after Freeholders p. 261. l. 1. r. that before us'd p. 262. l. 20. add s to thing p. 265. l. 14. add s to â—â—mmuni A Catalogue of some Books lately Printed for Tho. Basset at the George in Fleet-street AN Institution of General History or the Histo of the World in two Volumns in folio by Dr. William Howel Chancellor of Lincoln Printed 1680. Historical Collections being an exact Account of the Proceedings of the four last Parliaments of the Renowned Princess Queen Elizabeth containing the Journals of Both Houses with their several Speeches Arguments Motions c. in folio writ by Hayward Townshend Esq then a Member of Parliament Printed 1680. The Antient Right of the Commons of England Asserted or a Discourse Proving by Records and the best Historians That the Commons of England were ever an Essential part of Parliament By William Petyt of the Inner Temple Esq Of the French Monarchy and Absolute Power and also a Treatise of the Three States and their Power deduced from the most Authentick Histories for above 1200 Years and digested this latter by Mat. Zampini de Recanati L. L. D. The Constitution of Parliaments in England deduced from the time of King Edward the Second Illustrated by King Charles the Second in his Parliament Summon'd the 18th Febr. 1660 1. and Dissolved the 14th Jan. 1678 9. with an Appendix of its Sessions in Oct. The Politicks of France by Monsieur P. H. Marquis of C. with Reflections on the 4th and 5th Chapters wherein he censures the Roman Clergy and the Hugenots by the Sir l'Ormegregny Le Beau Pleadeur a Book of Entries containing Declarations Informations and other select and approved Pleadings with Special Verdicts and Demurrers in most Actions real Personal and mixt which have been argued and adjudged in the Courts at Westminster together with faithful references to the most Authentick printed Law books now extant where the Cases of these Entries are reported and a more Copious and useful Table than hath been hitherto Printed in any book of Entries by the Reverend Sir Humphrey Winch Knight sometime one of the Justices of the Court of Common Pleas. A Display of Heraldry manifesting a more easie access to the knowledg thereof than hath been hitherto published by any through the benefit of Method whereunto it is now reduced by the study and industry of John Guillim late Pursuivant at Arms. the 5th Edition much enlarged with great variety of bearings to which is added a Treatise of Honour Military and Civil according to the Laws and Customs of England collected out of the most Authentick Authors both Ancient and Modern by Capt. John Logan illustrated with Variety of Sculptures suitable to the several subjects to which is added a Catalogue of the Atcheivments of the Nobility of England with divers of the Gentry for Examples of Bearings Now in the Press Dr. Heylins help to the English History with very large Additions Petyt 's Appendix p. 131. Bracton lib. 2. cap. 16. p. 37. Charges upon the Land according to the value or number of Acres Charta Johannis 17. Regni Anno 1215. Tiguri fol. 247. Magna Carta cap. 9. 2 Iust fol. 20. Titles of Honour f. 586 587. Rot. Claus 17 Johannis Dorso m 21. Rot Pat. 17 Johannis pars unica m. 13. n. 3. Ib. m. â—3 dorso Magna Charta cap. 38. Confirmatio magna Chartae facta 2. H 3. in consimili formâ cum magna Charta 9. Hen. 3. testibus data exceptis exemplificata confirmata 25. Edw. 1. prout Charta de Forestâ Ex MS contemporaneâ statutor penes Sam. Balduin Equitem auratum servient ad legèm Et de Scutagiis assidendis faciemas summoneri c. That is such of the Majores as held intra 〈◊〉 Aid upon Tenants in Common Socage Escuage upon Tenants by Knights Service Chester Tit. Honor. 1 Edit p. 247. See Leicester's Survey of Cheshire 20. H. 3. M. Paris fol. 563. Ed. Lond. Tit. Honour 1 Ed. p. 233. Selden ib. Domesday in Cheshire saith Comes tenet Comitatum de Rege See Leicester 's survey of Cheshire Mat. P. fo 497. Ed. Lond. Anno 1232. 17o. H. 3. M. P. An. 1205. 7o. Johannis Mat. Pared Tig. f. 359. Nequi magnates viz. Comes Baro Miles seualiqua alia notabilis persona Rot. Claus 3 E. 2. m. 16. dor M. P. f. 359. An. 1232. 17o. Rs. H. 3. Nota This shews that the Tenants in Capite were not all the Council because they in particular are taken notice of amongst them which came to that Council The Earl of Chester was not to attend the King in his Wars nor to pay escuage in lieu of military service because all his Tenure was to keep to the defence of the Marches Rot. Pat. 44 H. 3. M. 1. dor 22o. Ed. 1. n. 45. sub Custod Camerar in Scaccario Rot. Pat. 2. Ed. 1. M. 6. Rot Pat 20. Ed. 1. M. 6. Bundella literar in Turre London An. 8. H 3. Ne qui Magnates viz. Comes Baro Miles seu aliqua alia notabilis persona c. Rot. Claus 3 E. 2. m. 16. dor Rot. Parl. 40 Ed. 3. n. 7 8. Matt. Par. p. 236. Hooker Eccles lib. fol. 29. Matt. Paris Ann. 1212. 14 Johannis Matt. Par. Matt. Par. Knyghton Matt. West fol. 271. Matt. West fol. 271. MS. Cod. ex Bib. Dom. Wild nuper defunct Note a Common Lord had Aid in the like case by King John's Charter William 1. Seldeni ad Fadmer notae specilegium fol. 190. Ib. cap. 52 59. Et ad judicium rectum sustitiam constanter omnibus modis pro posse suo sine dolo sine dilatione faciend ib. Knyghton fol. 2358. Leges Will. 1. Servitutes rusticorum praediorum sunt haec iter actus via aquaeductus Digest lib. 8. tit 3. Servitutum non ea natura est ut aliquid faciat sed ut aliquid patiatur vel non faciat ib. fol. 215. Sim Dunelm fol. 212. 1084. 14 Will. 1. 2. Inst fâ—l 232. Inter brevia directa Baron de term Mich. 32 Ed. 1. M. 4. dorso penos Rem Regis in Scaccario The same Plea for the Earl of Glocest. and Herts allowed ib. M. 5. Inter brevia directa Baron de Term. Hill 33 Ed. 1. penes Rem Domini Thes in Scaccario Inter