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
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
from Tenure But this is to be observed that this being spoke of as antiquated and that the People and Laws were in reputation when this was the usage there is a strong presumption from hence that since that time a less matter than five hides of Land a Church c. gave a place in the King's Court when Nobilty was cheaper and so the People the Nobles of less reputation The Normans followed not only the Lane but the decent Customs and Ceremonies of the former Government though not directly yet by way of resemblance And whereas the Saxon Kings celebrated their Courts often on great Feast days before all their People upon publick notice King William erects Tenures whereby all that he had obliged by his gifts except such as out of special favour were to do some small thing pro omni servitio should make a little Court or Council by themselves either Military if occasion were or Judicial in matters belonging to their feud And by Henry the Third's time if not Henry the Second's it took in all or most matters of ordinary Justice whereas before its business was confined to the Controversies arising between the King 's immediate Tenants other Suits especially about Lands were settled in the Counties or Hundreds or in particular Lords Courts as appears by the Charter of Henry the First de Comitatu Hundredis tenendis Henricus Rex Anglorum Sampsoni Episcopo Ursoni de Abecot omnibus Baronibus Francis Anglicis de Wircestrescirâ salutem sciatis quod concedo praecipio ut à modo Comitatus mei Hundreda in illis locis eisdem terminis sedeant sicut sederunt in tempore Regis Edw. non aliter 〈◊〉 enim quando voluero faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam I cannot here omit the plain observation that dominica necessaria cannot be meant otherwise than of the King 's own business for his necessary Demeasns were nonsense therefore the sense is that as often as he had occasion he would give them that is all the Counties and Hundreds sufficient notice for attending him so that here is a clear description of the nature of his Great Councils nay and of St. Edward's too in that when he says they shall sit no otherwise than they had done in St. Edward's time he adds For when I have a mind to it I will cause them to be sufficiently summoned to meet upon my necessary occasions of which I will be Judge that is so it was in King Edward's time and indeed so it appears in the Body of his Laws recited in the Fourth of William the First where 't is enacted that Tythes shall be payd of Bees we are there told with what solemnity the Law passed Concessa sunt à Rege Baronibus Populo So whereas King Ethelwolf Father to the Illustrious King Alfred had in the year 855 or 854 granted to the Church the Tythe of his own Demeasns Rex Decimas Ecclesia concessit ex omnibus suis terris sive Villis Regiis about ten years afterwards the Tythes were settled all over the Kingdom by a general consent totâ regione cum consensu Nobilium totias populi By the Populus is not to be intended all People whatsoever for they who were not Freeholders were not People of the Land were no Cives and were not properly a part of any Hundred or Country for they were made up of the Free Pledges the Freeholders Masters of the several Families answering for one another by Tens Ten Tens or Tythings at first making an Hundred Court and more or fewer Hundreds according to the first division or increase a Country and for the clear understanding the general Words as Principes Thaini Barones Proceres Baronagium Barnagium Regni or the like relating to the Great Councils of the Kingdom before and since the Norman acquisition we find by this Charter of Henry the First that the Counties and Hundreds that is the men which composed those Courts were upon sufficient notice to attend upon the King's business that is constitute the Councils and therefore Simeon of Durham very properly says of the Great Council Concilio totius Angliae adunato the same with what Eadmerus says of the Council of Pinnedene in the First William's time adunatis primoribus probis viris non solum de Comitatu Cantiae sed de aliis Comitatibus Angliae here were the probi homines the Freeholders of the Counties they that made the County Court or Turn either of which in St. Edward's Laws is called the Folkmote and is there described vocatio congregatio populorum omnium and we find by Statutes made before this time that the populus omnis or the primores probi homines according to Eadmerus are called Peers or Nobles for that the Country-Court or Turn at least was Celeberrimus ex omni satrapiâ conventus Thus in King Edgar's Laws Centuriae Comitiis quisque ut antea praescribitur interesto oppidana ter quotannis habentur Comitia Celeberrimus autem ex omni satrapiâ bis quotannis conventus agitor cui quidem illius Diocesis Episcopus Senator intersunto c. This some great men have taken for a General Council or Parliament but the contrary is manifest in that only the Bishop of the Diocess and one Senator either the Count or the Sheriff are to sit there in Chief and this very Law being taken notice of by Bromton it is there called Scyremotus so in Canutus his Laws where this is repeated and where Canutus his Laws give an Appeal from the Hundred to the County-Court or Turn this of the County is called Conventus totius Comitatus quod Anglicè dicitur Scyremote But to proceed with the Charter of Henry the First concerning the County and Hundred Court Et si amodo exurgat placitum de divisione terrarum si interest Barones meos dominicos tractetur placitum in Curiâ meâ Et si inter vavasores duorum Dominorum tractetur in Com. c. Though according to this the Titles to Land between all but immediate Tenants or such Lords as had none over them but the King were determinable in the County yet sometime before the Great Charter of Henry the Third Common Pleas in General which takes in the Titles of Land followed the King's Court where ever he held it and by that Charter were brought to a certain place Communia placita non sequantur Curiam nostram sed teneantur aliquo loco certo The King's Bench is coram Rege and used to follow the King's Court and was removeable at the King's pleasure Here Common Pleas as well as matters of the Crown were heard and at this doubtless all the King's Tenants by Knights Service used to be present of this Bracton says Illarum Curiarum habet unam propriam sicut aulam regiam
fond of the conjecture of their being the full Representative Body of the Nation would have it Et ad habendum Commune Consilium Regni de auxiliis assidendis aliter quam in Tribus casibus praedictis de Scutagiis assidendis submoneri faciemus Arch. Ep. Ab. Majores Barones Regni singillatim per literas nostras Et praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in capite tenent de nobis ad certum diem scilicet ad terminum Quadragint dierum ad minus ad certum locum in omnibus litteris submonitionis causam submonitionis illius exponemus sic factâ submonitione negotium procedat ad diem assignatum secundum consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint Here was I grant the form of a Common Council of the Kingdom to the purposes here named which are for Aid and Escuage The Aid I say and shall show was from those Tenants which held of the King in Comon Socage such as held Geldable or talliable Lands the Escuage concern'd the Tenants by Knights Service but both concern'd only the King's Tenants in chief which appears in the very confining the Summons to the Majores Barones Regni and others which held of the King in Capite Whereas 1 there were Majores Barones who held not by any Feudal Tenure that were not oblig'd to attend at the Kings ordinary Courts and they with them that were under their Jurisdictions had their Common Councils apart though all might meet at General Councils So that what was a Common Council of the Kingdom to this purpose was not so indefinitely to all 2. There were others who were oblig'd or had right to be of the Common Council of the Kingdom though not upon the accounts mentioned in this Charter 1. The Norman Prince to the encouragement of those great men that adventured for his glory made some of them as little Kings and gave them the Regal Government of several Counties in which they with the great men thereof and the liberè Tenentes Freeholders made Laws for the benefit of their Inheritances and the maintaining the peace and that of Chester in particular was given to Hugh Lupus Tenendum sibi Haered ita verè ad gladium sicut ipse Rex tenebat Angliam ad coronam So that he wanted nothing but a Crown to make him King In a Charter of Count Hugh's of the Foundation of the Monastery of St. Werburg he says Ego Comes Hugo mei Barones confirmavimus And one of his Successors grants to his Barons Quod unusquisque eorum Curiam suam habeat liberam de omnibus placitis ad gladium meum pertinentibus And at the Coronation of H. 3. which was after this Charter Earl John another of William's Successors carried St. Edward's Sword before the King as Matthew Paris tells us for a Sign that he had of right a very extraordinary power Comite Cestriae gladium Sancti Edwardi qui Curtein dicitur ante Regem bajulante in signum quod Comes est Palatinus Regem si oberret habeat de jure potestatem cohibendi c. Though this was the chief Count Palatine yet others had their separate Councils where they made Laws William Fitz-Osborn was made Earl of Hereford under William the First of whom William of Malmsbury says Manet in hunc diem in Comitatu ejus apud Herefordum legunm quas statuit inconcussa firmitas ut nullâ—s Miles pro qualicunque commisso plus septem solidis cum in aliis Provinciis ob parvam occasi inculam in transgressione praecepti herilis Viginti vel Viginti Quinque pendantur Of the same nature are Examples in the Constitutions of the old Earls of Cornwal and the like To return to the County Palatine of Chester its Count was not Tent. in Capite with the restrictions above taken viz. Subject to the Feudal Law and obliged to attend once at the Courts as other Tenants and yet at the general Councils he was present Therefore this Council mention'd in King John's Charter where none but Tenants in Capite obliged to the ordinary Incidents of such Tenure were was no general Council of the whole Kingdom as our Modern Authors would have though it were for the matters of ordinary Tenure all that were concern'd being at it In the Year 1232. King Hen. 3. held his Curia or Court at Winchester at Christmas which was one of the Court days or rather times of meeting for it often held several days and therefore when that at Tewksbury in King Johns reign held but a day it is specially taken notice of Soon after King Henry's Christmas Court he Summons all the Magnates of England ad Colloquium when they meet because he was greatly in debt by reason of his Wars he demands Auxilium ab omnibus generaliter Quo audito Comes Cestriae Ranulphus pro Magnatibus Regni loquens respondit quod Comites Barones ac Milites qui de eo tenebant in Capite cum ipso erant corporaliter praesentes pecuniam suam ita inaniter effuderunt quod inde pauperes omnes recesserunt unde Regi de jure auxilium non debebant et sic petitâ licentiâ omnes recesserunt Here was the Earl of Chester this being a Summons to a General Assembly but when the King asked money for his expences in the Wars he tells him in the Name of all the Laity that those which held of him in Capite which is as much as to say he was none of them served him in their Persons and at their own charge therefore they beg'd leave to be gone if the King had no other business with them for no aid was due So that it seems they look'd upon Auxilium to be something in lieu of the service which the Kings Tenant was to perform That this concern'd the Kings Tenants in Capite by K t s service and no others except the inferior talliable Tenants they that were then assembled being the Great Council of the Kingdom took upon them to Umpire between the King and his Tenants and to tell him that he had no pretence for aid from them for they had perform'd their services due If only Tenants in Chief by Knights service are here intended by Tenants in Capite they only most commonly attending the King in Person though sometimes all Tenants whatever were required to attend and so in King John's Charter the Summons be taken to be only of such Tenants in Chief then the aid there is meant only of such as comes from them but that takes not in all that are within the meaning of King John's Charter it adding simili modo fiat de Civit. Lond. which paid a Socage Aid as I shall shew But for Chester even at those times when aids were granted by
to Portsmouth they which were summoned to the last are specified under the Denominations of Comites Barones Omnes qui Militare Servitium ei debebant this was to have them pass the Seas with him and they that stay'd at home gave him Escuage Veniente autem die statuto multi impetratâ licentiâ dant Regi de quolibet Scuto duas Marcas Argenti Here was a Military Council and a Military Aid given they that were with him at Dover are not particularly described by Matthew Paris but he tells us Convenerunt Rex Anglorum Pandulphus cum proceribus Regni apud domum Militum Templi juxta Doveram 15. die Maii ubi idem Rex juxta quod Romae fierat sententiatum resignavit coronam suam cum Regnis Angliae c. This was Communi Consilio Baronum nostrorum as Matt. Paris and Knyghton render the Charter As Matt. Westminster ad optimum consilium Baronum nostrorum the last gives us the form of the Summons which shews who were the Commune Consilium Regni here the Proceres Regni mention'd in Matt. Paris Omnes suae ditionis Homines viz. Duces Comites Barones Milites Servientes cum equis armis So that here was a Military Summons to them that ought to come because of Services which is explained by the Summons to Dover which was to Omnes qui militare servitium ei debebant if he thought all were bound to that Service and summoned all still the Parliaments Judgment satisfies us either that the rest were not obliged and therefore came not or if they came as they often did in Hen. 3. time upon the like summons as appears by many Records of that Age that the King's Tenants only assented to the Resignation Either way it resolves into this that a Council of the King's Tenants was not a Council that could lay any Obligation upon or pretend to a Representation of the whole Kingdom Indeed I meet with a MS. wrote I suppose in the time of Hen. 6. above two hundred years past the Author of which being induced by all the Records or Histories which had then appeared to him to believe that nothing could be of Universal Obligation even in King John's time but what was assented to as universally as Laws were when he wrote gives us King John's Charter of Resignation in a very full and complete form as if it had been Per consilium assensum nostrorum Procerum Arch. Ep. Ab. Prior. Comitat. Baronum Militum Liberorum hominum omnium fidelium nostrorum Whereby if his Authority could stand in competition with the Great Councils he would remove the Objection that had been long before made which was that this Resignation made in the ordinary Curia was not in a Legal Representative of the Kingdom It seems that both the Parliament and this Author were then satisfied that the King 's Feudal Peers or Tenants in Chief could not make a Commune Consilium Regni as a full Parliament in King John's time Besides it is worthy of consideration that if none but Tenants in Capite were of the Common Council of the Kingdom at this time then all the Abbots Priors and other Dignified Clergy who held not of the King in Chief and yet were very numerous together with the whole body of the inferiour Clergy were entirely excluded from and never admitted to this Common Council any more than the rest of the Layty from the time of William the First to the forty ninth of Henry the Third This I conceive is enough in the Negative that the King's Tenants could not within the meaning of this Charter make the Common or General Council of the Nation If it be said that they made the Common or ordinary Council for matters of Tenure or ordinary Justice I shall not oppose it in which sense they might be said to be a Commune Consilium Regni but that sense cannot be here intended because the words are Commune Consilium de auxiliis assidendis aliter quam c. de scutagiis c. So that 't is manifestly no more than a Common Council for the assessing of Aids and Escuage and if I shew that the Aids and Escuage concern'd the King's Tenants only then the Common Council of the Kingdom dwindles into a Common Council of the King's Tenants for matters concerning their Tenure If no instance can be shewn from Record or History of Auxilia or Aids raised by the Kings of England without more general consent except such as were raised of his immediate Tenants and those cases wherein the King here reserved to himself a power of charging with Aid or Escuage without consent of a Common Council concern'd his Tenants only and more than those Tenants were parties or privies to this Charter it must needs be that the other cases wherein the consent of a Common Council was requisite concerned Tenants only since only their consent is required and they only stood in need of this clause of the Charter That two of the three above mentioned viz. Aid to make the Eldest Son a Knight and to marry the Eldest Daughter were incident to Tenure appears by the Stat. West 1. Cap. 36. which ascertains the Aid which before as that declares was not reasonable and shews upon whom it lay viz. Tenants by Knights Service and Socage Tenants and there is no doubt but if the King might by Law have required Aid in those two cases he might have done it in the third for the redemption of his own body which was a service a King of England especially after the loss of Normandy which often occasioned the exposing their Sacred Persons so little stood in need of and was likely so rarely to happen that there was no need to redress by the Statute of West any grievance arising from thence Though the Statute here spoken of be only in the affirmative what Tenants by these Services shall pay Yet this has been taken to be pregnant with a Negative as to all others not mentioned So 11 Hen. 4. fol. 32. Nul grand sergeanty ne nul auter tenure mes seulement ceux queux teigne in Chevalry en Socage ne paieront Aid a file marrier pour ceo Stat. de West 1. cap. 36. voet que ceux deux tenures serroint charges ne parle de auters tenures that is none but Tenants by Knights Service and Socage are liable to these Auxilia But over and above these incidents whether with consent of Tenants or advice of other Council or meerly of their arbitrary motion Kings used to raise money upon their Tenants and these were called Auxilia which is the word used in this Charter of King John the leavy upon Tenants by Knights Service was called Escuage because of their Servitium Scuti Service of the Shield that upon Tenants of their Demesns in Common Socage Tallage which is a word that might be of a large extent as it signifies a cutting
Justiciarios Capitales qui proprias causas Regis terminant aliorum omnium per querelam vel per privileginm sive libertatem But as the Curia Regis was held sometimes of the Tenants and Officers only sometimes of the whole Kingdom when matters having no relation to Tenure or ordinary Judicature were in question hence has arose the mistake of some Learned Authors in taking the Curia Regis to be nothing but the Court of the King's Tenants of others that 't was meant only of the Great Council of the Nation Whereas we may trace their frequent distinctions from the Conquest downwards very apparently and very often their union It is agreed on all hands that the ordinary Curia was held thrice a year at Christmass Easter and Whitsontide and in the time of William the First the places were as certain on Christmass at Glocester on Easter at Winchester on Whitsontide at Westminster while they were held at the accustomed places there was no need of any Summons they that were to come ratione Tenurae might well come de More afterwards they removed from place to place the King made the Court where ever he was pleased to hold it and indeed when ever but then it could not be the Curia de more if it were at a different time or place then there was need of Summons if there were summoned at any time more than the Ordinary Members of the Curia if this was on the day of the Curia there was an Union of the Great Council and the Curia if on a different day there was a Great Council by its self yet the Members of the Curia were a part thereof Not to anticipate what will appear from the Presidents which I shall produce to make good this my Assertion I shall make my Observations upon them in order About the first year of the Reign of William the First as Mr. Selden supposes was held the Council at Pinnedene to determine the difference between Odo Bishop of Baieux Earl of Kent and Archbishop Lanfranc if this were a Curia de More then 't is evident that more than Tenants in Chief nay all Proprietors of Lands assembled then of course even at the Curia for the probi homines of several Counties were there but it appears that it was upon the King's Summons to all the Freeholders of Kent and of some adjacent Counties Praecepit Rex quatenus adunatis primoribus probis viris non solum de comitatu Cantiae sed de aliis comitatibus Angliae querelae Lanfranci in medium ducerentur examinarentur determinarentur Disposito itaque apud Pinnedene Principum conventu Godfridus Episcopus Constantiensis vir eâ tempestate praedives in Angliâ vice Regis Lanfranco justitiam de suis querelis strenuissime facere jussus fecit Here all the probi homines are by variation of the phrase conventus Principum a Bishop was President and pronounced the Judgment but it was as 't is said afterwards Ex communi omnium astipulatione judicio this Judgment was afterwards revoked in another Council which to be sure must have been as large as the other else the Lawyers who were there could never have made any colour of an Argument for the revocation Item alio tempore idem Odo permittente Rege placitum instituit contra saepe fatam Ecclesiam Tutorem ejus patrem Lanfranc illius omnes quos peritiores legum usuum Anglici Regni noverat gnarus adduxit Cum igitur ad ventilationem causarum ventum esset omnes qui tuendis Ecclesiae causis quâque convenerunt in primo congressu ita convicti sunt ut in quo eas tuerentur simul amitterent 'T is observable that there was a legal tryal and the cause went on that side where the Law seemed to be but indeed afterwards Lanfranc coming possibly upon producing some Evidences not appearing before the first Judgment was affirmed Here matter of ordinary Justice was determined before more than the ordinary Curia This looks very like a General Council of the whole Nation to be sure 't was more than a Curia of the King's Tenants and Officers and is more than a County Court Yet in the nature of a County Court it being several Counties united and so was adunatio conciliorum though not of the Council of the whole Nation An Ancient MS. makes this Chiefly a Court of the County of Kent Praecepit Rex Comitatum totum absque mora considere homines Comitatus omnes francigenas praecipuè Angl. in antiquis legibus consuetudinibus peritos in unum convenire But then it adds alii aliorum Comitatum homines and so confirms what Eadmerus says The nature of these Courts is easily to be explained by Writs which we find from William the First for such Tryals as this at Pinnedene Willelmus Anglorum Rex omnibus fidelibus suis Vicecomitibus in quorum Vicecomitatibus abbatia de Heli terras habet salutem Praecipio Abbatia de Heli habeat omnes consuetudines suas c. has inquam habeat sicut habuit die qua Rex Edwardus fuit vivus mortuus sicut meâ jussione dirationatae sunt apud Keneteford per plures scyras ante meos Barones viz. Gaulfridum Constansiensem Episcopum Balwinum Abbatem Petrum de Valonnus Picotum Vicecomitem Tehehen de Heliom Hugonem de Hosden Gocelinum de Norwicum plures alios Teste Rogero Bigot Willielmus Rex Anglorum Lanfranco Archiep. Rogero Comiti Moritonio Gauffrido Constantiensi Episcopo salutem Mando vobis praecipio ut iterum faciatis congregari omnes scyras quae interfuerunt placito habito de terris Ecclesiae de Hely antequam mea conjux in Normaniam novissimè veniret Cum quibus etiam sint de Baronibus meis qui competenter adesse poterunt praedicto placito interfuerunt et qui terras ejusdem Ecclesiae tenent Quibus in unum congregatis eligantur plures de illis Anglis qui sciunt quomodo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit et quod inde dixerint ibidem jurando testentur Quo facto restituantur Ecclesiae terrae quae in dominico suo erant die obitûs Edwardi exceptis his quas homines clamabunt me sibi dedisse Illas vero literis signate quae sint et qui eas tenent Qui autem tenent Theinlandes quae proculdubio debent teneri de Ecclesiâ faciant concordiam cum Abb. quam meliorem poterint et si noluerint terrae remaneant ad Ecclesiam Hoc quoque de tenentibus socam et sacam fiat Denique praecipio ut illi homines faciant pontem de Heli qui meo praecepto et dispositione hucusque illum soliti sunt facere Willielmus Rex Anglorum Goffrido Episcopo et Rodberto et Comiti Moritonio salutem Facite simul
venire omnes illos qui terras tenent de dominico victu Ecclesiae de Heli et volo ut Ecclesia eas habeat sicut habuit die qua Edwardus Rex fuit vivus et mortuus et si aliquis dixerit quod inde de meo dono aliquid habeat Mandate in magnitudinem terrae et quomodo eam reclamat et ego secundum quod audiero aut ei inde escambitionem reddam aut aliud faciam facite etiam ut Abbas Symeon habeat omnes confuetudines quae ad Abbatiam de Heli pertinent sicut eas habebat Antecessor ejus tempore Regis Edwardi Preterea facite ut Abbas seisitus sit de illis Theinlandis quae ad Abbatiam pertinebant die quo Rex Edwardus fuit mortuus si illi qui eas habent secum concordare noluerint et ad istud placitum summonete Willielmum de Guaregnna et Richardum filium Gisleberti et Hugonem de Monteforti et Goffridum de Manna Villâ et Radulfum de Belfo et Herveum Bituricensem et Hardewinum de Escalers et alios quos Abbas vobis nominabit Upon these Writs many useful things might be observed but I will confine my self as nigh as I can to my purpose From them as interpreted by equal authority of History it appears that Wil. the first us'd to commissionate several of his Barons I will not oppose their being his great Tenants in Chief these were to preside in the Tryals of matters within ordinary Justice which were to be try'd in the several Counties where the question arose sometimes in one County sometimes in several together as the men of the several Counties that is the several Counties were united Sometimes these great Men sometimes the Sheriffs were to Summon the Parties and to take care that an Inquest of the County or Counties concern'd be impannell'd in the Counties that is by the choice of the Freeholders The Kings Commissioners were to pronounce the Judgment in the Kings Name or stead So the Bishop of Constance did right to Lanfranc 't was Judicio Baronum Regis qui placitum tenuerunt and yet ex communi omnium astipulatione judicio The Inquest upon their Oaths found the matter of Fact the Judges stated it to the people and delivered their Judgment to which the Primores probi homines assented for 't was ex communi omnium astipulatione this agrees with what Bracton says of the Laws pass'd in the Great Council of the Nation De Concilio Consensu Magnatum Reipublicae communi sponsione But it may be objected that the Kings Writ is to the Great Men to do Justice to which the Books give an answer that the Kings Writ does not change the Nature or Jurisdiction of a Court and therefore though a Writ of Right or a Justities be directed to the Sheriff yet the Suitors in the County Court are Judges And what their Jurisdiction was in the time of Wil. the first is to be gathered from what continued to the Freeholders or Suitors of the County Court of Chester even till the time of Edward the First Upon a Writ of Error to remove a Judgment out of the County Palatine of Chester into the King's Bench in a Plea of Land The Chief Justice of Chester certifies that the Judicatores et Sectatores the Suitors at the County Court clamant habere talem libertatem quod in tali casu debent omnes Barones eorum Seneschal ac Judicatores ejusdem Comitatus summoniri audituri hujusmodi processum Recordum illa antiquam sigilla sua apponant si fuerit infra tertium Comitatum per seipsos emendare Et hujusmodi libertates a tempore quo non exstat memoria usi sunt et gavisi And the Chief Justice farther certifies quòd fecit summoniri omnes Barones et Judicatores accordingly The Parties Assembled at the Council of Pinnedene were the Primores et probi viri of the Counties concern'd which answer to the Proceres et fideles Regni in the union of all the Counties in Parliament as in the 42 of Henry 3. which in another Record of the same Parliament are branch'd out into hanz hommes e prodes hommes there are the Primores et probi viri e du commun de nostre Realme that is as the Statute of the Staple has it the Prelates Dukes Earles Barons the Great Men of the Counties Grands des County's as the French and the Commons of the Cities and Borroughs The Testimony of Eadmerus concerning the Parties to the Judgment at Pinnedene confirms me in my opinion that the Summons to a Great Council as I take it in this Kings Reign mentioned by Simon of Durham and Florentius Wygorniensis which was to all the Bishops Abbots Earles Barons Sheriffs with their Knights was not to them and those only who held of them by Knights Service for more than such were Judges even for matters of ordinary Justice within the Counties but that it was to them and the Sheriffs Knights the Freeholders of the Countys who were by St. Edwards Laws oblig'd to find Arms and became Knights Milites as soon as by publick Authority they took Arms the antient form of Manumission proves this sufficiently Siquis velit servum suum liberum facere tradet eum Vicecomiti per manum dextram in pleno Comitatu et quietum illum clamare debet a jugo servitutis suae per manumissionem et ostendat ei liberas portas et vivias et tradat illi libera Arma viz. Lanceam et Gladium et deinde liber homo efficitur Thus he becomes a freeman and the Sheriffs Knights at the same time That all Freeholders had the appellation of Milites is evident by many Records and even a Statute that for the choice of Coroners which was but declaratory of the common Law as appears by several Records before that time I will instance in one Because one that had been chosen Coroner was neither a Knight or Freeman as that interprets it self nor yet discreet therefore a new choice is directed Miles non est et in servitio alieno et juvenis et insufficiens et minus discretus Here in Servitio alieno a servant is put in contradistinction to Miles that is to a Freeholder or Liber tenens Et here has the like import with Sed unless a man might have been a Knight and yet no Freeman The Freeholders of the County of Cornwall Fine to the King for leave to chuse their Sheriff 't is said in the Record Milites de Com. Cornubiae finem fecerunt Rot. fin 5º H. 3. pars 1 a. M 9. And these which are here called by the general denomination of Knights are in another Record of the same specified under these names Episcopus Comites Bar. Milites libere tenentes et omnes alii de Com. so that all the people of the
any publick Act of recognizing a Kings Title of justice or of Elections of Persons to any Office I shall not scruple to call such an Assembly a Council and if it it be General a Great or Common Council of the Kingdom And Lanfranc I conceive was in this Kings Reign chose to be Metropolitan of all England in such a Council 't was indeed in Curiâ Regis as Gervacius and the Author of Antiquitates Britannicae shew but not the Ordinary Curia for 't was on our Lady-Day which was not the time of such Curia and the Clerus and Populus Angliae more than the Kings Tenants and Officers there confirm'd the choice of the Seniores ejusdem Ecclesiae that is of Canterbury In the fourth of this King the controversie between the Archbishop of York and the Bishop of Worcester was determined at Petreda before the King Archbishop Lanfranc the Bishops Abbots Earles et Primatibus totius Angliae this Mr. Selden rightly calls a Parliament which is easily to be gathered from the large and comprehensive Signification of Primates That General Summons the same year to have an account of the Laws looks as if it were to a Parliament to which a representation of twelve for every Country was agreed on but appears not to have been specially directed be that as it will there was no need of a full representative or meeting in an entire Body because it was not to lay any new obligation upon them but was an Enquest of the several Counties to present their old Laws But when he seemed inclined to make the Customs of some few Counties the Rule to all the rest Ad preces communitatis Anglorum he left to every County its old Customs In the Seventeenth of this King Convocavit Rex multitudinem Nobilium Angliae the multitude of the Nobles of England says Gervace of Dover this was about Ecclesiastical Affairs Concerning the bringing regular Monks into Monasteries and an old Monk tells of the Charter or Law then agreed on Haec charta confirmata est apud Westm in concilio meo Anno Regni mei XVIII praesentibus omnibus Episcopis et Baronibus meis where Barones mei must either be meant with relation to the whole Nobility of England which were all the King's men though not his Feudal especially immediate Tenants before whom the Test of Charters used to be as in Henry the Third's time the Earls only subscribed at the request of the rest or it might be only his Tenants in Chief subscribing as was usual In the Eighteenth the King impeaches his Brother Odo for his extortion this was at the Isle of Wight In Insulâ Vectâ ei obviavit Ibi in mirum congregatis in aulâ Regali Primoribus Regni this was matter of ordinary Justice and though Primores Regni are named yet it might have been only such of them as attended on his Wars or in his Court and 't is not probable that being abroad all the Primores Angliae were summoned to this In the Nineteenth of his Reign I take it that he held barely his Curia at Glocester for 't was a Military Council except that his Judges Great Officers and constant Attendants were part of it Partem exercitus sui remisit partem secum per totam hyemem retinuit et in nativitate Domini Glavorniae Curiam suā tenuit at this Court I find only some Ecclesiastical Preferments disposed of to three of his Chaplains which required no solemn Consult but his Laws passed per Commune Concilium totius Regni semel atque iterum ait se concessisse c. per Commune Concilium totius Regni and his Leges Episcopales Ecclesiastical Laws were established De Communi Consilio Arch. Episc Abb. et omnium Procerum Regni sui For William the Second whereas a great Antiquary will not say whether there were any solemn convention of the Nature of a Common or General Council in his time 't is manifest there was and we may find the Marks of distinction between his ordinary Curia Great Council or Parliament He was crowned convocatis terrae magnatibus says Bromton volentibus animis Provincialium Malms that is the whole Kingdom agreeing or the Major part indeed it seems the Normans were for Duke Robert but the English were not so wasted as some imagine but that they carried it Angli tamen fideliter ei juvabant as Simeon of Durham shews and Hoveden out of him In the Second year of his Reign he held a Curia on Christmass at London but 't was more than a Curia de more for there were Justiciarii ac Principes totius Angliae In the Third Turmas optimatum accivit Guentoniae congregavit he called together the Troops or Army of Nobles Barones aloquitur inveighs against his Brother Robert and perswades them to a War ut consilium inirent quid sit agendum jussit bids them consider or advise what was to be done His dictis omnes assenssum dederunt all consented to a War The King being very ill omnes totius Regni Principes coeunt Episcopi Abbates quique Nobiles promittuntur omni populo bonae sanctae leges here the Princes and Nobles reach to omnis populus Here Anselm is named Archbishop by the King concordi voce sequitur acclamatio omnium the noyce and publick acclamation witnesses the peoples consent and this is said to be secundum totius Regni electionem or as another Author Rex Anglorum consilio rogatu Principum suorum Cleri quoque populi petition◠et electione The King being upon leaving England to settle his Affairs in Normandy Ex praecepto Regis omnes ferè Episc unà cum principibus Angl. ad Hastings convenerunt Here Anselm pressed that there might be Generale Concilium Episcoporum but went from the Curia the Great Council dissatisfied Anselm had propounded a question to be discussed in Council Utrum salvâ reverentiâ et obedientiâ sedis Apostolicae possit fidem terreno Regi servare annon Ex Regiâ sanctione fermè totius Regni Nobilitas quinto Id. Martii pro ventilatione istius causae in unum apud Rochingham coit Fit itaque conventus omnium This is called Curia but could not be the Court of Tenants and Officers only Anselm harangues the Assembly in medio Procerum et conglobatae multitudinis sedens The other Bishops are the Mouth of the Assembly and the Bishop of Durham the Prolocutor they tell him they will have him obey his Prince upon this he appeals to Rome Miles Unus a good honest Freeholder steps out of the throng de multitudine prodiens and with great devotion sets before his Holy Father the Example of Job's patience upon this the Prelate hugged himself in the opinion that the populus the Populacy were
Rex Magnates regni Mat. West Anglicani regni praesules Proceres Gervasius Episcopi proceres Radulphus de Diceto Praelati proceres Populus regni as another Clerus populus regni Hoveden The whole Kingdom as Dr. Stillingfleet shews us out of the Quadripartite History The body of the Realm as Sr. Roger Twisden terms it Yet I conceive that the clause so much tost to and fro without any right settlement referrs to the ordinary Curia Regis to which the Kings Tenants were bound by their tenure to come and where ordinary justice or jurisdiction in all or most causes was exercised and this gives some account why the Bishops who have been from the Normans acquisition downwards tenants in chief because of their temporalties and during vacancies the Guardians of those temporalties upon that very account have been particularly summon'd why I say they should be allowed to vote in a legislative capacity which they have as Proprietors though no tenants of the King when they proceed by way of bill of attainder and yet tenure only qualifying them for Judges in Parliament as before in the Kings ordinary Curia interesse judiciis Curiae or at least they succeeding to the jurisdiction of the Tenants in the Curia according to the constitution of Clarend that jurisdiction which they have as tenants or as succedaneous to such extends not to matters of blood It will not be proved that the coming to the Great Council where the extraordinary power justice or legislature was exercis'd was meerly because of tenure and that no body had right to be of the great Council but they that held in capite or were members of the ordinary Curia indeed when that was taken away or disus'd they that before were to do suit and service at the Curia were to perform it at the Great Court the Parliament for there was no other Court where they could and therefore in the 8th of Ed. 2. the Inhabitants of St. Albans plead that they held in Capite And as other Burroughs were to come to Parliament pro omni servitio But that the coming to the Judgements of the ordinary Curia was meerly because of tenure appears from the words of the constitution Arch. Ep. c. universi personae regni qui de Rege tenent in capite habent possessiones suas de Domino Rege sicut Baroniam c. sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus c. That is except as is there excepted these ecclesiastical tenants or Barons were to be present or interested in the Judgements together with the Kings Justices and Officers as the other Barons that is Lay-tenants in Capite It seems both Ecclesiasticks and Lay-tenants in Capite held per Baroniam yet I think caeteri Barones ought to be confin'd to them that held of the King in Chief by Knights service for many held in feodo firmâ by the payment of a certain rent or petty Serjeanty the payment of a gilt spur or the like pro omni servitio of which the Records are full who were not ordinarily to give their attendance at the Curia But tenure per Baroniam was I take it in those times no more than tenure by Knights Service in Capite This perhaps I could prove by many records I shall instance in one to the honour of a Noble Peer of this Realm now Earl late Baron of Berkley as his Ancestors have been ever since the time of Hen. 2. One of his Ancestors had the grant of the Mannor of Berkley Harness from Hen. 2. Tenendum in feodo haereditate sibi haeredibus suis per servitium Quinque Militum An office is found in Edw. the third's time upon the death of Maurice Berkley and there 't is that he held per Baroniam faciendo inde servitium Trium Militum pro omni servitio Two Knights fees having been alien'd inde upon the account of the Barony or rather the land was the Knights Service and the Knights service made the Barony as appears there being no particular words creating any honourable tenure but what resulted from serving the King with men upon his own charges the number I take it made nothing towards the nature of the tenure These tenants by Knights service the Kings Barons were obliged to be at the Kings Courts de more if at the Great Court when he should call them the chief ground was upon their ordinary attendance amongst the rest of the tenants That what relates to the Curia Regis within the Const of Clarendon was meant of the ordinary justice of the Kings Court and consequently the ordinary Court old _____ of Glocester is express Yuf a man of holi-Church hath ein lay fee Parson otherwhat he be he shall do therevore King's Service that there valth that is right ne be vorlore In plaiding and in Assize be and in judgement also But this farther appears by the summons to and proceedings at Northampton the very next year This Hoveden calls Curia Regis and Mr. Selden informs us out of an antient Author that the summons thither was only to the members of the ordinary Curia Omnes qui de Rege tenebant in Capite mandari fecit upon the Bishops withdrawing from the judging of Becket the ground of which I shall soon examin Quidam Vicecomites Barones secundae dignitatis were added 't was quidam Vicecomites some Sheriffs it could not be all because several were Majores Barones having the countys in fee but this restraint seems not to reach to the Barones secundae dignitatis suppose that it does and so comes only to the uppermost of them the Vavasores perhaps that is inferior or Mesne Lords holding Mannors of others not the King still here were more than tenants in Chief and to be sure these being said to be added were more than the members of the ordinary Curia and this Court to which they were added was only the ordinary Court of Justice If we can shew when this ordinary Court of Justice determin'd and who succeeded into the places of the ordinary members of it we may go farther to clear the matter in question than perhaps has yet been done If the Lords the great men succeeded the Court of Tenants and were let into that jurisdiction which they exercised and there is no colour of proof that Clergy-men in the Curia Regis ever voted in Capital causes but if on the other side the prohibitions running against judicia sanguinis and the constitution of Clarendon referring to the Curia Regis where the ordinary judicia sanguinis were agitated and pronounced justly they took themselves to be excluded the Curia quando de illis materiis agitur It will I think be evident that the Bishops as a part of the house of Lords answering to the Court of the Kings tenants never had any right to
Portsmouth Generale proposuit edictum ut Comites Barones omnes qui militare servitium ei debebant parati essent ad Portesmue cum equis armis ad transfretandum cum eo ad partes transmarinas in die Pentecostes iam instante Those that would not pass the Seas with him consented to the payment of escuage Two marks of Silver upon every Knights Fee dantes Regi de quolibet scuto duas marcas Argenti The next year he held his Curia on Christmass in Normandy And the year following this he held his Christmass Court in Normandy likewise In the year 1204. his Curia was held on Christmass at Canterbury from thence he went to Oxford where were present more than the Members of the Ordinary Curia convenerunt ad colloquium apud Oxoniam Rex Magnates Angliae Indeed what is then given the King is only from his feudal Tenants but that is no argument that therefore no more were there because the Council advis'd him to charge his Tenants nay 't is very observable that the Historian does not say that they which were there assembled gave but ubi concessa sunt Regi auxilia militaria de quolibet scuto scilicet duae marcae that is there Escuage was given by or upon them who held by Knights service or it might be an aid given generally by every one according to the number of Acres or value of his estate in proportion to the valuation of a Knights Fee As was usually done in that and succeeding times And then I take it provision was made for the defence of the Kingdome viz. that every Nine Knights throughout the Kingdome should find a tenth arm'd at all points to be ready in servitio nostro ad defensionem regni quantum opus fuerit this to be sure reacht further than to the Knights by Military Tenure because every one that held a Knights Fee was by his tenure to find a man and consequently this would have been a weak'ning of the Kingdome to abate of their services but it must needs have extended to all that held to the value of a Knights Fee though not by Knights service This was provided Communi assensu Arch. Ep. Com. Baronum omnium fidelium nostrorum Angliae And so a general Land Tax And at the same Parliament the King per commune Concilium Regni made an Assise of Money In the year 1205. he held his Court at Theokesbery which broke up the first day Soon after he call'd together his army that is those who were oblig'd by their tenure to attend him for though the Curia de more was confin'd to certain days yet the King made the Court where-ever he pleas'd to appoint it and the obligation to attendance at the Court was indefinite his Military Council when met refus'd to go with him beyond sea as he required whereupon with a few of them he sets out to sea and after he had coasted about a little he exacted a great summ of money from those whose tenure could furnish him with a pretence for it because they discharg'd not the duty of their tenure occasiones praetendens quod noluerunt ipsum sequi The next year he held his Court on Christmass at Oxford The Historians give no mark of any thing more than an ordinary Curia but the Records do There was a grant of subsidy upon every mans personal estate per Commune Concilium assensum Concilii nostri apud Oxoniam This in another Record is said to be by the Arch. Ep. Abbates Magnates Regni nostri Rot. Par. 8 Jo. m. 1. On Whitsontide he held his Court at Portsmouth In hebdom Pentecostes exercitum grand apud Portesmouth congregavit But then the Christmass following at Winchester he held a General Council and that was on the Court day Celebravit natale Domini apud Wintoniam praesentibus Magnatibus regni Deinde in purificatione beatae Mariae cepit per totam Angliam tertiam decimam partem ex omnibus mobilibus aliis rebus tam de laicis quam de viris ecclesiasticis praelatis cunctis murmurantibus sed contradicere non audentibus Here was a grant of what no way belong'd to tenure and therefore all the Magnates regni were privy to it though 't was done grudgingly In the year 1208. he held his Court on Christmass at Windsor where he distributed coats to his Souldiers He held his Christmass Court at Bristol He held a Great Council on the Feast day at Windsor praesentibus omnibus Angliae Magnatibus So the year following at York praesentibus Comitibus Baronibus regni 1212. 'T was but an ordinary Court held at Windsor fuit ad natale apud Windsor 1213. He held his Court at Westminster with very few tenants ad natale Domini tenuit Curiam suam apud Westmonasterium cum pauco admodum Militum comitatu In this year we find a Military summons to more than tenants and of an extraordinary nature Misit literas ad omnes Vicecomites regni sui sub hâc formâ Rex Johannes c. Summone per bonos summonitores Comites Barones Milites omnes liberos homines servientes vel quicunque sint de quocunque teneant qui arma habere debent vel arma habere possint qui homagium nobis vel ligeantiam fecerunt Quod sicut nos seipsos omnia sua diligunt sint apud Deveram ad instant clausum Paschae benè parati cum equis armis cum toto posse suo ad defendendum caput nostrum capita sua terram Angl. Et quod nullus remaneat qui Arma portare possit sub nomine Culvertagii perpetuae servitutis Et unusquisque sequatur Dominum suum Et qui terram non habent arma habere possint illic veniant ad capiendum solidatas nostras Hereby all free-men as well as the Kings tenents nay servants and all that ow'd allegiance to the Crown though not oblig'd to bear arms if they could get any were required to give their attendance and those that had not wherewithal to maintain themselves should have the Kings pay this was upon expectation of an invasion and therefore the assembly seems to have been as general as the summons but there is a shrewd circumstance to induce the belief that many considerable men not holding in Chief thought themselves not oblig'd to attendance till necessity press'd them for otherwise he would never have been terrified into a dishonourable peace the parting with all his right of patronage to the Pope and submitting to his pleasure if he had not been sensible by the absence of many great men that there was truth in the French King's boast Jactat se idem Rex Chartas habere omnium ferè Angliae Magnatum de fidelitate subjectione But that this was not
a general Council of the Nation appears by the Statute of Provisors which declares that the Popes assuming the jus patronatus was an incroachment that is usurpation or unlawful act which it would not have been if the Comites Barones and turba multa nimis that unanimously agreed to those shameful terms which King John yielded had been enough to constitute a full representative of the Nation If they had been call'd to Council not to fight then indeed upon knowledge that matters of general obligation were to be settled though but few had come they would have concluded the rest The Army as it was computed were about 60000 but that being made up of Servants Villains and all manner of people 't is not to be supposed that there were there nigh the half of the proprietors which must have been present to make any thing of general obligation without notice of its being so intended Of the same nature with this was that shameful resignation of the Crown before mentioned near Dover whereas the first agrreement was at Dover The same year his Tenants who were to maintain themselves in his Court and Army at their own charge complain that he had kept them out so long that they had spent all their money and could follow him no longer unless he supply'd them out of the Exchequer This year there was a Great Council at St. Albans where were all the Magnates regni and there was a confirmation of the laws of Hen. the first whereas we find nothing of that nature at any Curia of the Kings tenants and Officers only The same year he held his Court on Christmas at Windsor but a Great Council was held at Oxford the Summons to which Mr. Selden produces but sayes the Record of it for ought he had seen is without Example Rex Vicecomiti Oxon salutem praecipimus tibi quod omnes Milites Ballivae tuae qui summoniti fuerunt ad nos à die Omnium Sanctorum in quind dies Venire facias cum armis suis Upon this part 't is observable that there had been a general notice or Proclamation of the time when he would have those that ow'd him Military Service to attend with their Armes but the place was not named for they were to follow him whereever he would have his Court and therefore herein was an apparent Grievance in some measure redress'd by his Charter Two years after in ascertaining the place of Meeting to Consult of Aids and Escuage but besides these Tenants there were others Corpora vero Baronum sine Armis singulariter quatuor discretos Milites de comitatu tuo venire facias ad nos ad eundem terminum ad loquendum nobiscum de Negotiis regni Nostri Teste meipso apud Witten 11 die Nov. Eodem modo scribitur omnibus Vicecomitibus Thus much I take to be clear from it that here was an union of the Ordinary Curia Regis the Court of the King 's Military Tenants who were to attend with their Armes and of peaceable Senators in a great Council If the Barones of whom the Sheriff was to take special care were only such as were Barons by tenure 't is not supposable that contrary to the Obligation of their tenure they should be ordered to come unarmed whil'st only their Tenants or at least Inferiour Tenants to the King had their Swords in their hands wherefore Barones here must be taken in the most large and comprehensive sense But this is farther observable that where the Summons was General to all the Arch-Bishops Bishops Abbots Priors Earles Barons Knights and Free-holders yet there has been a special Inquest summoned or taken out of the Generality as in the Summons to attend the Justices in Eyre Summoneas per bonos Summ. Omnes Arch. Ep. Abb. Pri. Comit. Baron Milites liberè tenentes de Balliva tua de qualibet villâ quatuor legales homines praepositum de quolibet Burgo Duodecim Legales Burgenses c. And even agreeably to this Record of the 18 of King John we find that in the 42 of Henry the third it was agreed that there should be quatuor Milites Inquisitores four Inquisitors in every County who were to be sworn in the County Court to enquire faithfully into the business of every County in order to represent it at Parliament which has no semblance of their being the representatives of the Counties only the presenters and methodizers of that business to which the Great Council gave their Assent or Dissent From this time to the Great Assembly at Rumny Mead I find neither a Great Council nor Curia mentioned that to be sure was of more than the King's Tenants as I have already shewn I shall only observe farther that it consisted of that Army which was got together on both sides On the peoples side was a very great Army Comitum Baronum Militum Servientium Peditum Equitum cum Communibus Villarum Civitatum and after this they had a great accession by gaining the whole City of London and all that were neutral before and even most of those that had kept along with the King upon this the King condescends to treat the place is agreed upon and accordingly convenerunt ad colloquium Rex Magnates who these were the Record tells us and the Assembly was as General as the Concession on the King's side Concessimus omnibus liberis hominibus nostris Regni Angliae pro nobis haeredibus nostris in perpetuum omnes libertates subscriptas habendas tenendas eis haeredibus suis de nobis haeredibus nostris Even this was a Curia Regis in a large sense but not the ordinary Curia and though 't were the Common Council of the Kingdom as 't was the Assembly of the whole Community yet not the ordinary Common Council for that might be and I need not scruple to say that it was of the King's Tenants and Officers which in that sense and to the purposes for which of course it met was the Commune concilium regni yet like the Kings ordinary Privy Council or his Courts of Justice long since settled at Westminster-Hall they could exercise no act of legislation If it be said that the charging Tenants with more than was due of custom were such an Act by the same reason the power of making By-laws would argue a legislative power and there would be a little Parliament in every Village Without re-examining particular instances I conceive 't is obvious that admit the ordinary Curia Regis at any time exercised a power peculiar to the Great Council of which I dare boldly say there are very rare if any instances such that it can be affirm'd with certainty this was an ordinary Curia without a more solemn convention or Summons yet in irregular times many of them would not make one legal President especially against so many declarations
and confirmations of the antient laws and free customes as Princes either to obtain or assure the Crown to them swore solemnly inviolably to observe and keep If sometimes the marks of distinction between the Curia Regis and the Great Council are not clearly apparent in that the Curia only might be summon'd ad colloquium and in that sense might be styl'd Parliamentum though not Generale Parliamentum and the Generale Parliamentum might be as indeed it alwayes was Curia Regis though not the Curia de more Yet the certain difference is upon particular instances where the full circumstances are set down alwayes to be known As the ordinary Curia consisted of the Kings Tenants and Officers and there appears no grievance worth publick notice to have lain on the last nor on the first as to their attendance at the Wars or as a Court of Justice the remedy was properly apply'd by King John's Charter to that wherein they were uneasie which was the assembling about the matters relating ad servitia to their services without convenient notice for time or for the occasion so that they might think it was only for matters of ordinary justice which might go on well enough without them when it was really to charge them in their properties by such as should appear by design and contrivance which was a great mischief Wherefore for this the redress was 1. That they should have forty dayes notice 2. That the time place and occasion of meeting should be ascertained And then they that were there were justly concluded by the rest and had no reason to complain of the charge Thus I conceive I have given a rational account of this Charter and I question whether upon other grounds any man can reconcile it with the Records and Histories both before and since the Charter till the 49 of Hen. 3. when 't is supposed that more than Tenants in Chief which compos'd the Common Council here mentioned were let into the Great or Common Council of the Kingdom If they cannot I conceive they must take my sense For this Charter was either declarative of the law as 't was before or introductive of a new law If the first then it must be interpreted by the Records and Histories both before and since till a time of change can be assign'd with some colour If introductive of a new law then we must see what interpretation practice has put upon it not that the sense of a law is alwayes to be interpreted by practice because then we should think especially upon the several Statutes against Provisors which were rarely executed according to the letter that we could not judge of the sense of former laws by the plain words But if the words will any way admit of a double sense that sense is alwayes to be taken which agrees with constant practice especially if the sense inclines most towards the practice I have at large shewn the evident proofs that to the Great Council of the Nation there us'd to come more than the King's Tenants in Chief and consequently this very Charter confirming free customes of every particular the place or of the inhabitants of those places According to this Charter the Common Council of the Nation by law consisted of more than the King's Tenants in Chief and that the Law was thus there is a very strong proof which turns upon them who suppose that King John's Charter gives us the full form of the Great Council and that none but the King's Tenants in Capite made the Common Council or Parliament of the Kingdom till 49 H. 3. In the thirty ninth year of H. 3. several years after he had granted and confirmed that famous Charter which alone obtained the addition of Great so that the Magna Charta or Grand Charter of William the first Hen. the first King Stephen Hen. the second and King John all lost their names and were swallowed up in that the Baronagium or omnes fere Angliae Magnates refused to give a Royal Aid demanded of them the ground of their refusal is very remarkable Quod omnes tunc temporis non fuerunt juxta tenorem magnae Cartae suae vocati This some would render and call King John's Charter and that the complaint was that the Peers had not their particular Summons according to the tenour of that Charter Were it so 't would prove nothing for them that urge it because it does not appear but that the aid demanded might have been Escuage or Taillage or both which lay upon the King's Tenants only such a Common Council as that Charter I conceive establishes But it is Cartae suae not Cartae Regis Johannis patris Regis nunc 't is the then King Henry the third's Charter no man will say that 't was the Barons Charter and besides it was the Great Charter and no other Charter then maintained that Epithete But what puts this out of dispute is that though H. 3.'s Charter was comprehensive of all the fundamentals of the Government and was so many times confirmed and explained where it was thought needful yet there is not one clause referring to the Great Council of the Nation but what leaves to every particular place and the Inhabitants thereof all ancient Customes and Liberties so that unless it be proved that such a Commune concilium Regni as is in King John's Charter us'd to compose the Great Council exclusive of all others excepting what is implyed in the general Salvo at the end they must needs have referred themselves to the ninth Chapter of Henry the Third's Charter which indeed is but a revival of the law affirmed in King John's Whereby the City of London all Cities Burroughs Vills Townships or Parishes the Barons of the Cinque Ports and all other Ports were to enjoy all their liberties and free customes That by Villae is meant Parishes or Townships I think may appear from Doomsday book where Villa is taken for the next Division under an Hundred Hic subscribitur inquisitio terrarum quo modo Barones Regis inquirunt viz. per sacramentum Vicecomitis scirae omnium Baronum eorum Francigenarum totius Centuriae presbyteri Praepositi vj. Villani uniuscujusque Villae Here are the Sheriff the Great Barons and Clergy-men and Headboroughs within every Hundred and six Inhabitants of every Villa Parish or Township then follows an account of the several Lands and Tenures by Hundreds and Villae within those Hundreds Now according to the ninth chapter of Magna Charta custome is to be the Legal Interpreter what was the Great or Common Council of the Nation and as the whole Nation is made up of Cities Burroughs and Parishes or Townships they being the integral parts of every County all the Counties of England were to be summon'd according to their free customes And methinks the right of the Counties for their coming to the Great Council and its being preserved under the