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
County that is they which were part of the County Court were comprehended under the word Milites In another Record the Milites et probi homines that is honest Freeholders are used as the same In pleno Com. tuo dicas Militibus probis hominibus Ballivae tuae c. The Milites or probi homines were under the Sheriff an Officer of their own choice as was the Law and Custom of this King's time to be sure and long after the Office of the Heretochius who had been the Ductor Militiae had been discontinued no body knows how long and 't is spoke of only as an Office that had been But the Sheriff being of the Freeholders choice not the Kings having no certain Salary nor Fee upon any account taken notice of in the eye of the Law but depending upon what the King should give out of the two thirds of the Profits of the County the tertium denarium the third part the Earl o◠Count had who will imagine that the Sheriffs as Sheriffs had any feud rais'd upon them by the King that is were to attend at his Courts or in his Wars with their Feudall Knights the posse Commitatus which was assisting to them being of quite another nature Indeed I find one Fulcherus homo Vicecomitis that is Tenant by Knights Service to which homage was incident and in that sense Miles Vicecomitis in another part Tenet Rogerus de Picoto Vicecomite de foedo Regis hanc terram tenuit Gold sub Abbate Eli potuit dare absque ejus licentiâ sine sacâ This had been freehold within the Abbots Precinct alienable without licence subject to no suit of Court and was granted to Picot then Sheriff of the County to hold of the Kings feud that is by Knights service Yet he did not hold this as Vicecomes but as Baro so 't was if any man had the County in fee But the King Summoned the Barones Vicecomites that is the Vicecomites without consideration of their capacity as Barons and their Knights 't was long after this that the word Vicecomes was any thing more than tbe name of the Office here spoken of an honorary Viscount was not then known such indeed might at their creation have had feuds rais'd upon the Lands granted along with their Honours There is this farther proof that this was more than a Council of the Kings Tenants and Officers or ordinary Court in that the Summons was immediately after the Curia and that to a place sufficiently capacious Salisbury Plain Et in hebdomada Pentecostes suum filium Henricum apud West ubi Curiam suam tenuit armis militaribus honoravit here was the proper work of the Curia the King gave Arms in his Court to the Great Men and immediate Tenants the common Freeholders received them in the County Court either at coming to Age or upon becoming free by Manumission which 't is not probable that a man would desire unless he had a freehold to live upon or that thereby those Lands which were held in Villenage became free But though one were born free yet I take it he was to recieve a formal military Honour have Arms deliver'd to him when he came to Age and in the time of Hen. 1. 't is us'd as a sign that one was not of age when he seal'd a Deed and consequently 't was not effectual because Militari baltheo nondum cinctus erat We find that when a freeman died his Heir under Age some body was to have the custody of the Arms. Siquis Arma haec habens obierit remaneat haeredi suo et si haeres de tali statu non sit quod Armis uti possit si opus fuerit ille qui eum habuerit in custodia habeat similiter custodiam Armorum c. And when he came of Age tunc ea habeat this was in Hen. 2. time and then the publick delivery of Arms to all Freemen might have been disus'd but antiently as Mr. Selden observes the taking Arms by young men from publick Authority was a kind of Knight-hood But soon after Will. the first had at his Court Knighted his Son Henry he call'd this great Assembly of Barones Vicecomites cum suis Militibus his Curia was held at Whitsontide Nec multo post mandavit ut Arch. Ep Abb. Com. Bar. Vicecomites cum suis Militibus die Kal. Aug. sibi occurrerent Saresberiae quocum venissent Milites illorum sibi fidelitatem contra omnes homines jur are coegit Here I take it Milites illorum refers to the Knights of the Sheriffs that is the Freeholders this was adunatio conciliorum a joyning together of the several Councils of the Counties where the swearing allegiance to the King was one of their Principal Works the Kings Tenants had done it of course in the Curia but methinks 't is a strange thing that it should be us'd for an Argument that this was not a great Council of the Kingdom because they were evocati◠ad fidei vinculum For satisfaction I will offer a Record of the same work done in Parliament in the time of Henry 3. Celebrato nuper Concilio apud Bristol ubi convenerunt universi Ang. Praelati tam Ep. Ab. quam Primores et multi tam Comites quam Barones qui etiam univerfaliten fidelitatem nobis publicè facientes concessis eis libertatibus liberis consuetudinibus ab eis prius postulatis ipsis approbatis c. Here the King yields them those Liberties and Free-customs which they desired and they swear Allegiance to him here was the fidei vinculum But perhaps they will say that this of W. the first was no Common Council or Parliament because it appears not that any Laws pass'd or that they were summon'd to that end For the first I think no man will say that the Assembly is less parliamentary because nothing is agreed upon in it Indeed we find that where a Parliament was dissolv'd without any Act pass'd 't is said by Judge Cook not to be a Parliament but the Inception of a Parliament that is no Session but whoever will consult the Summons to Parliament in the time of Ed. 1. 2. may satisfie himself that there were many Parliaments call'd at which there were no Laws pass'd but meerly Advice given and yet at the end thereof the Knights Citizens and Burgesses had their Writs of Expenses wherein the Kings declared that they had been called to Parliament nobiscum de diversis negotiis nos populum Regni specialiter tangentibus tractatur For the last 't is no matter whether the cause of Summons were express'd 't is enough if it were de quibusdam arduis or however else was the use of that time Besides 't is certain many Laws have pass'd in publick Councils antiently of which we have no intimation from those Historians which mention such Councils Wherever I find
vote in Capital cases But it lyes upon me here to shew when and how the Curia Regis went off I have before observed that the duty of Tenants was either to attend the King in his Wars in his administration of ordinary justice or as a Council to give him aid in lieu of or by way of advance upon their personal services in the Wars As they attended in the Wars they could not be a Court or Council and so no Curia Regis As a Court of justice their attendance was superseded by Magna Charta 2 or 9 of Hen. 3. Communia placita non sequantur Curiam nostram sed teneantur in aliquo loco certo Hereby the administration of justice was taken from the ordinary Curia and fix'd at the Courts in Westminster-hall Yet after this they continued a Court or Council for aids till the 34th of Edw. the first and by that they were wholly gone as a separate Court or Council being from that time no tax nor aid could be raised without full consent of the great Council or Parliament When this Court was gone as before I observed we find Tenants in chief pleading that their coming to the Great Court or Parliament was pro omni servitio which shews manifestly that the Great Court not only took in the less as it did in the nature of the thing being that and more but that it preserved the Image of it and indeed what was a duty in them that came to or were members of the ordinary Curia turn'd to a priviledge or right in them who succeeded to the dignity though not the services of Tenants As the Tenants were obliged by their Tenure interesse judiciis Curiae Regis they that succeeded to their dignity had right to be Judges in Parliament And whereas the Curia Regis as a Court of Justice was taken away or defeated in the time of Hen. 3. we find by Britton suppos'd to have wrote in the fifth of his immediate successor that the Barons were Judges in Parliament as the Tenants and Officers had been in the Curia Regis Et en case ou nous somes partie volons que nostre Court soit judge sicome Counts Barons en temps de Parliament Now let us return to the constitution of Clarendon The tenants whose duty it exacts the Lay Tenants disputed not were Tenants by Barony that is by Knights Service of the person or Crown of the King and except as there is excepted were of duty to be present at all Tryals or Judgements or to exercise Jurisdiction in all causes but judicium vitae vel membrorum they were not to meddle with when they came in judicio in jurisdiction or the tryal of causes ad judicium vitae vel membrorum that is to such a cause or the exercise of such a jurisdiction or such a tryal they were to withdraw and this is the plain sense of judicium vitae vel membrorum given us by that Great Judge learned both in the Common and Civil Laws Bracton who wrote in the Reign of Hen. 3. Grandson to this King who enforc'd the leges avitas in this particular and others contain'd in the Constitution of Clarendon This Great Lawyer having enumerated several priviledges or jurisdictions granted from Kings of England to their subjects amongst other things has these words Item si cui concedatur talis libertas quod habeat soke sake toll them Infangthef utfangthef Judicium vitae membrorum furcas alia quae pertinent ad executionem judicii c. Here this Judicium vitae membrorum must be meant of the whole tryal or jurisdiction otherwise it is supposed that he tells us the King granted those men Liberty to pronounce or depute those that should pronounce the final Judgment who yet neither by themselves nor Deputies had any thing to do with the praeliminaries the questions arising between and leading to the Justice of the Judgement which is an absurd supposal The having Judicium or power in judicio does not as I conceive any way suppose a tryal already begun and the Bishops present so far in it but when it comes to the point of mutilation or death then they have leave to withdraw that is they are a Court or of the Court for such a cause and yet they are not a Court for such a cause for the cognizance of causes takes in the Judicium the tryal in the agitation Agitare judicium and in the final or solemn pronouncing of the Judgement It is indeed possible though not rational that the law should give the Jurisdiction over part of a Cause and not the whole yet 't is not to be imagined that such was the meaning of the Law-makers especially when we find the words of the law according to the sense put upon those words by the most learn'd in the age nighest to them that transmit the law to us are not to be brought to such a dividing sense without a great deal of force And to this the several other copies of this constitution give weight But we are told that the sense is best understood by the practice of that age If the sense be plain a contrary practice is not to determine the sense another way as as great an Author the learned Doctor Stillingfleet proves at large in his answer to Mr. Cressy's Epistle Apologetical where he shews the number of Statutes made against Provisors in express terms And yet when the King of England comes to settle the points in difference between him and Pope Martin the 5. there is no manner of regard had to the Statutes of Provisors although so often repeated nor did common practice agree with the positive and plain law But the testimony of Petrus Blesensis brought to prove the practice in the time of Hen. 2. I could set aside with better colour than the Author of the Grand question does the true sense of judicium and in judicio For Petrus Blesensis joins together the Principes Sacerdotum and Seniores Populi the last of which in common acceptation relates to the Laity and for their withdrawing just at the final judgement surely there could be no pretence from the practice of that age But let 's take his authority and make the best of it Principes Sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis ideo seque immunes à culpâ reputant quod mortis aut truncationis membrorum judicium decernentes à pronunciatione duntaxat executione poenalis sententiaese absentent Here he expressly confirms the sense which I shall enforce and makes the votings in the preliminaries mortis aut truncationis membrorum judicium decernere Some Clergy-men it seems did thus decernere judicium sanguinis and he blames them for it but can their practice of any thing against law be an
and confirmations of the antient laws and free customes as Princes either to obtain or assure the Crown to them swore solemnly inviolably to observe and keep If sometimes the marks of distinction between the Curia Regis and the Great Council are not clearly apparent in that the Curia only might be summon'd ad colloquium and in that sense might be styl'd Parliamentum though not Generale Parliamentum and the Generale Parliamentum might be as indeed it alwayes was Curia Regis though not the Curia de more Yet the certain difference is upon particular instances where the full circumstances are set down alwayes to be known As the ordinary Curia consisted of the Kings Tenants and Officers and there appears no grievance worth publick notice to have lain on the last nor on the first as to their attendance at the Wars or as a Court of Justice the remedy was properly apply'd by King John's Charter to that wherein they were uneasie which was the assembling about the matters relating ad servitia to their services without convenient notice for time or for the occasion so that they might think it was only for matters of ordinary justice which might go on well enough without them when it was really to charge them in their properties by such as should appear by design and contrivance which was a great mischief Wherefore for this the redress was 1. That they should have forty dayes notice 2. That the time place and occasion of meeting should be ascertained And then they that were there were justly concluded by the rest and had no reason to complain of the charge Thus I conceive I have given a rational account of this Charter and I question whether upon other grounds any man can reconcile it with the Records and Histories both before and since the Charter till the 49 of Hen. 3. when 't is supposed that more than Tenants in Chief which compos'd the Common Council here mentioned were let into the Great or Common Council of the Kingdom If they cannot I conceive they must take my sense For this Charter was either declarative of the law as 't was before or introductive of a new law If the first then it must be interpreted by the Records and Histories both before and since till a time of change can be assign'd with some colour If introductive of a new law then we must see what interpretation practice has put upon it not that the sense of a law is alwayes to be interpreted by practice because then we should think especially upon the several Statutes against Provisors which were rarely executed according to the letter that we could not judge of the sense of former laws by the plain words But if the words will any way admit of a double sense that sense is alwayes to be taken which agrees with constant practice especially if the sense inclines most towards the practice I have at large shewn the evident proofs that to the Great Council of the Nation there us'd to come more than the King's Tenants in Chief and consequently this very Charter confirming free customes of every particular the place or of the inhabitants of those places According to this Charter the Common Council of the Nation by law consisted of more than the King's Tenants in Chief and that the Law was thus there is a very strong proof which turns upon them who suppose that King John's Charter gives us the full form of the Great Council and that none but the King's Tenants in Capite made the Common Council or Parliament of the Kingdom till 49 H. 3. In the thirty ninth year of H. 3. several years after he had granted and confirmed that famous Charter which alone obtained the addition of Great so that the Magna Charta or Grand Charter of William the first Hen. the first King Stephen Hen. the second and King John all lost their names and were swallowed up in that the Baronagium or omnes fere Angliae Magnates refused to give a Royal Aid demanded of them the ground of their refusal is very remarkable Quod omnes tunc temporis non fuerunt juxta tenorem magnae Cartae suae vocati This some would render and call King John's Charter and that the complaint was that the Peers had not their particular Summons according to the tenour of that Charter Were it so 't would prove nothing for them that urge it because it does not appear but that the aid demanded might have been Escuage or Taillage or both which lay upon the King's Tenants only such a Common Council as that Charter I conceive establishes But it is Cartae suae not Cartae Regis Johannis patris Regis nunc 't is the then King Henry the third's Charter no man will say that 't was the Barons Charter and besides it was the Great Charter and no other Charter then maintained that Epithete But what puts this out of dispute is that though H. 3.'s Charter was comprehensive of all the fundamentals of the Government and was so many times confirmed and explained where it was thought needful yet there is not one clause referring to the Great Council of the Nation but what leaves to every particular place and the Inhabitants thereof all ancient Customes and Liberties so that unless it be proved that such a Commune concilium Regni as is in King John's Charter us'd to compose the Great Council exclusive of all others excepting what is implyed in the general Salvo at the end they must needs have referred themselves to the ninth Chapter of Henry the Third's Charter which indeed is but a revival of the law affirmed in King John's Whereby the City of London all Cities Burroughs Vills Townships or Parishes the Barons of the Cinque Ports and all other Ports were to enjoy all their liberties and free customes That by Villae is meant Parishes or Townships I think may appear from Doomsday book where Villa is taken for the next Division under an Hundred Hic subscribitur inquisitio terrarum quo modo Barones Regis inquirunt viz. per sacramentum Vicecomitis scirae omnium Baronum eorum Francigenarum totius Centuriae presbyteri Praepositi vj. Villani uniuscujusque Villae Here are the Sheriff the Great Barons and Clergy-men and Headboroughs within every Hundred and six Inhabitants of every Villa Parish or Township then follows an account of the several Lands and Tenures by Hundreds and Villae within those Hundreds Now according to the ninth chapter of Magna Charta custome is to be the Legal Interpreter what was the Great or Common Council of the Nation and as the whole Nation is made up of Cities Burroughs and Parishes or Townships they being the integral parts of every County all the Counties of England were to be summon'd according to their free customes And methinks the right of the Counties for their coming to the Great Council and its being preserved under the
JANI ANGLORUM FACIES NOVA OR Several Monuments of Antiquity touching the Great Councils of the Kingdom and the Court of the Kings immediate Tenants and Officers from the first of William the First to the forty ninth of Henry the Third Reviv'd and and Clear'd Wherein The sense of the Common-Council of the Kingdom mentioned in King John's Charter and of the Laws Ecclesiastical or Civil concerning Clergy-men's Voting in Capital Cases is submitted to the judgement of the Learned Decipimur specie recti Hor. LONDON Printed for Thomas Basset at the George near St. Dunstan's Church in Fleet-street 1680. Jani Anglorum Facies Nova THat King John's Charter exhibits the full form of our English Great and most General Councils in those days if I may fay so is the Vulgar Error of our Learned Men and 't is that which hath given the only prejudice to the pains of the Judicious Mr. Petyt who I must fay has laid the Foundation and sure Rule of understanding the Ancient Records and Histories which mention the Great or General Councils in his distinctions between the Curia Regis and Commune or Generale Concilium Regni Barones Regis and Barones Regni and the Servitia which were paid or performed by reason of Tenure And those Common Prestations which Bracton mentions Sunt etiam quaedam Communes praestationes quae Servitia non dicuntur nec de consuetudine veniunt nisi cum necessitas intervenerit vel cum Rex venerit sicut sunt hidagia corragia carvagia alia plura de necessitate consensu Communi totius Regni Introducta Which are not called Services nor come from Custom but are only in case of necessity or when the King meets his People As Hidage Corrage and Carvage and many other things brought in by necessity and by the Common Consent of the whole Kingdom This I must observe upon the differences here taken that 't is not necessary to the maintaining a real difference to insist upon it that none of these words were ever used to signifie what is the natural signification of the other for Example Barones and Milites are sufficiently distinct in their sence and yet when but one of the words is used either of them may and often does take in the other But when Barones Milites c. are set together the Barones are a Rank of men superiour to the ordinary Milites 't is enough to prove that the differences above mentioned are rightly taken if according to the subject matter and circumstances we can clearly divide the one from the other Now let us see the words of the Charter and observe whether they are meant of all General or Common Councils for making of Laws and Voluntary Gifts to the Crown or only of such as concern'd the King's Immediate Tenants Nullum Scutagium vel Auxilium Ponam in Regno nostro nisi per Commune Consilium Regni nostri nisi ad corpus nostrum redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel Maritandam ad hoc non fiet nisi rationabile auxilium Simili modo fiat de Civitate Londinensi Et Civitas Londinensis habeat omnes antiquas Libertates Liberas consuetudines suas tam per terras quam per aquas praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portubus omnes portus habeant omnes Libertates Liberas consuetudiues suas ad habendum Commune Consilium Regni aliter quam in tribus casibus praedictis Here the London Edition of Matthew Paris and that at Tours make a period distinct from what follows and then the Sense is that except in those three Cases wherein the King might take Aid or Escuage at the Common Law without the Consent of a Common Council for all other Aids or Escuage a Common Council should be held and the City of London all Cities Burroughs Parishes or Townships that is the Villani their Inhabitants the Barons or Free-men of the Five Ports and all Ports should amongst other Free Customs enjoy their right of being of or constituting the Common Council of the Kingdom But so much is certain that if these or any besides the Tenants in Capite came before this Charter and were at the making of it their Right is preserved to them by it and is confirmed by the Charter of Hen. 3. cap. 9. Civitas Lond. habeat omnes Libertates Antiquas consuetudines suas preterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portibus emnes alii portus habeant omnes Libertates Liberas consuetudines suas And for an evidence of what was their Custom and Right as to the Great Council of the Kingdom both these Charters were made to and in the presence of all the Clergy Counts Barons and Free-men of the Kingdom King Johns as Mr. Selden tells us he conceives was made by the King and his Barones liberos homines totius Regni as other particulars were of the same time But the Record which he cites in the Margent puts it out of all doubt that the Charter was made by them all Haec est conventio inter Dominum Johannem Regem Angliae ex unâ parte Robertum Filium Walteri Marescallum Dei Sanctae Ecclesiae Angliae Ric. Com. de Clare c. alios Comites Barones liberos homines totius Regni ex alterâ parte And in another Record it is said to be Inter nos Barones liberos homines Dominii nostri So that the liberi homines of the Kingdom were present and who were at the making of the Great Charter of Hen. 3. which has been so many times confirmed it acquaints us at the end Pro hac autem donatione concessione libertatum aliarum libertatum in cartâ de libertatibus forestae Arch. Ep. Ab. Pr. Comites Barones Milites liberè tenentes omnes de Regno nostro dederunt nobis quinto-decimam partem omnium mobilum suorum The Charter here mentioned of the Forest had been granted in the Second of Hen. 3. as was the Great Charter the parties to the grant of a Subsidy are the very same Archiepiscopi Episcopi Abbates Priores Comites Barones Milites liberè tenentes omnes de Regno Not to produce here the proof of such General Assemblies from the Conquest downwards to the 49 H. 3. I may say upon what I have already shown that this interpretation of King John's Charter whereby the Tenants in Capite are divided from the rest and made a Common Council for Escuage only agrees better with the Records and Histories than the notion that they alone compos'd the whole Council of the Kingdom which can never be proved But I will take the words together even as they who are
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
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
off from the Estate but being it was never used as an imposition with pretence of Duty but upon his Tenants and that which was raised upon Tenants by Knights Service had its proper name therefore this has generally been applied to the payments of Socage Tenants either as ordinary Services that is upon the ordinary occasions wherein 't was of course raised by the King or upon extraordinary occasions and necessities which required advice Yet as an exaction or unjust payment it has been taken in the largest sence to reach to all Tenants and others as in William the First his Emendations or Charter of Liberties the 1. Magna Charta Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeant teneant terras suas possessiones suas benè in pace liberas ab omni exactione injustâ ab omni Tallagio ita quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jure nobis facere tenentur prout statutum est eis illis à nobis concessum jure haereditario in perpetuum per Commune Concilium totius Regni nostri praedicti In a General Council of the whole Kingdom it had been setled what the King should have of his Tenants by reason of Tenure and what Free Services he should have even of those Freemen which were not his Tenants Thus by the Oath of Fealty or Allegiance and by the Law of Association or the revival of the Frank Pledges every Freeman was tied to Service for the Defence of the Peace and Dignity of the Crown and Kingdom and by the Association more particularly to maintain Right and Justice for all which they were to be conjurati fratres sworn Brethren And besides this there were Services belonging to the Crown which lay upon the Lands of Freemen To instance in Treasure Trove and Royal Mines Thesauri de terris Regis sunt nisi in Ecclesiâ vel Coemeterio inveniantur Aurum Regis est medietas argenti medietas ubi inventum fuerit quodcumque ipsa Ecclesia fuerit dives vel pauper And this was as properly a Service as the Roman servitus praediorum which consisted in something to be suffered upon Lands or Houses But he would not exact or take from them by force any kind of Tallage Therefore the Historian tells us that in the year 1084. De unaquaque hidâ per Angliam VI. solidos accepit he accepted as a voluntary guift 6 s. of every hide of Land throughout the Kingdom if 't was without consent 't was against his own Charter and so illegal But to proceed to shew the nature of the Auxilia which came from Tenants in the Reign of some of his Successors either ordinary as common incidents or extraordinary By the Common Law as the Lord Cook observes upon the Statute of West 1. cap. 36. to every Tenure by Knights Service and Socage there were three Aids of money called in Law Auxilia incident and implied without special reservation or mention that is to say relief when the Heir was of full Age Aid pur fair fitx Chevalier Aid pur file marrier When the Lord Cook tells us that these Services were incident to Socage Tenures as well as Knights Service it must be intended when it is spoke of the Services of the Tenants of the King 's Ancient Demeasn only for they that held of the King by certain Rent which was Socage Tenure were not subject to the payment of the Tallage except their Land were of the Ancient Demeasn of the Crown And therefore Robert de Vere Earl of Oxford who held a Mannor of the Crown by a certain Rent which to be sure was not Knights Service pleads that he held the Mannor with the Appurtenances per Servitium Decem librarum Regi ad Scaccarium annuatim reddendum pro omni Servitio Regidedit intelligi quod idem Manner non antiquo dominico Coronae Regis Angliae nec est de aliquibus temporibus retroactis in Tallag per Progenitor Regis Angliae in dominicis suis assessis consuevit talliari Upon search made he and his Tenants are freed from Tallage So the King declares that he will not have Aid that is Tallage for marrying his Eldest Daughter of any Clergy-men that hold in Frank-Almaign or Socage which must be taken in the same sense with the former And before this Walterus de Esseleg held a Mannor ad foedi firmam that is at a certain Rent of the gift of Hen. 2. and was never afterwards talliated quum Praedecessores nostris Reges Angliae nos talliari fecimus Dominica nostra it seems though the Land had been of Ancient Demeasn yet it was severed by the Purchase This Tallage was called Auxilium in the Record De consilio nostro provisum est quod auxilium efficax assideri faciamus in omnibus burgis dominicis nostris Yet the City of London being charged with a Tallage the Common Council dispute whether it were Tallagium or Auxilium which is there meant of a voluntary Aid not due upon the account of any of their houses being of the Kings demeasne though indeed 't is then shewn that they had several times before been talliated This explains that part of the Charter simili modo fiat de Civitate Londinensi that is as in all cases besides those excepted Escuage or Tallage should not be raised but by a Common Council of the Kingdom that is of all the persons concern'd to pay So for the City of London unless the Aid were ordered in a Common Council wherein they and all other Tenants in Chief were assembled none should be laid upon any Citizens but by the consent of their own Common Council and if the Ordinance were only in general terms that all the Kings Demeasns should be talliated the proportions payable there should be agreed by the Common Council of the City according to that Record 11 Hen. 3. Assedimus auxilium efficax in Civitati nostra London Ita quod singulos tam Majores quam Minores de voluntate Omnium Baronum nostrorum Civitatis ejusdem per se talliavimus Et ideo providimus simile auxilium per omnes Civitates nostras Burgos dominica nostra assidere This per se talliavimus was a talliating per Capita for when the Common Council refused to give such a sum in gross as the King demanded then the King was put to have it collected of every Head and is according to the faculty of every Socage Tenant of his Demeasn as appears by the Record of 39 Hen. 3. Whereas by this Charter the King might take Escuage or Tallage in three cases without the consent of the Tenants but confin'd to reasonable that is secundum facultates or salvo contenemento and in those cases wherein
their consent was required things were carried by the Majority of voyces amongst them that were present upon his Summons which sometimes were very few as when he held his Court at Westminster in the fifteenth of his Reign on Christmass the chief time 't was cum pauco admodum Militum Comitatu there arose a very great inconvenience and a few Tenants called together at a time when the rest could not attend as in Harvest or the like might ruine the rest therefore this seperate Court of Tenants is wholly taken away in the Reign of Edward the First and he promises that no Tallage or Aid without any reservation should be leavied for the future without the consent of a full settled Parliament not that it was incumbent upon all that came to Parliament to pay either Tallage or Escuage but as they were the Great Council of the Nation they should advise him when or in what proportion to talliate his Demeasns or lay Escuage upon his Tenants by Knights Service And when the King's Tenants paid Escuage by Authority of Parliament the Tenants by Knights Service of inferiour Lords were obliged to pay to their Lords Lit. Sect. 100. the Statute is thus Nullum tallagium vel auxilium per nos vel haeredes nostros in Regno nostro ponatur seu levetur sine voluntate assensu Arch. Ep. Comitum Baronum Militum Burgensium aliorum liberoum hominum de Regno nostro Pursuant to this the very same year is a Record of a Summons for a Parliament to consider of an Aid to make his Eldest Son Knight for which before he need not have consulted his Parliament nor the Council of the Tenants de jure Coronae nostrae in hujusmodi casu auxilium fieri nobis debet says the Record and yet he had tied up his hands from raising it without consent of Parliament However King John had in some measure redressed their grievance giving them assurance that there should always be the general consent of Tenants for what was not payable of right and custom without any consent of theirs and for the assessing those sums to which consent was made necessary there should be a convenient notice that none might complain of the injustice of the charge But all these things so manifestly relate to Tenure both the cases excepted and the cases provided for that no other sense can be tolerable for where the King reserves three incidents to Tenure and the particulars within the provision are appendant to Tenure and none but Tenants are mentioned shall we believe that something Forreign is intended by the very same words though we may well believe that all Aids whatever were intended by the Statute of Edw. 1. because the consent of all People Tenants and others is required Thus far I think I am warranted by very good Authorities I take leave to observe farther that it should seem that before this Charter the King might have charged his geldable or talliable Lands that is those Lands which were held of his Demeasn in Socage at his own discretion but could not charge them that held by Knights Service without their consent and so this part take it barely to the consenting is for the advantage and relief of the Socage Tenants only The Charter of Henry the First which exempts the King's Tenants by Knights Service ab omnibus geldis that is tribute or forced payments beyond ordinary Services leaves the King a Power of charging his other Tenants by meaner Services though not those which held by Serjeanty pro omni servitio Militibus qui per loricas terras suas deserviunt terras dominicarum carucarum suarum quietas ab omnibus geldis ab omni opere proprio dono meo concedo ut sicut tam magno gravamine alleviati sunt ita equis armis se bene instruant ut apti sint parati ad servitium suum ad defensionem Regni But then as the consent is qualified upon such notice and summons to a certain place herein the Tenants by Knights Service are eased in relation to part of their Service They were obliged to attend the King's Court either in his Wars his administration of Justice or for the assessing of Escuage upon those that made default in their Personal Services for the first there could not be any time of summons or place of attendance ascertained because occasion and necessity was to determine that for the second they could not claim it as a priviledge the administration of Justice being within the King 's Ordinary Power and his Ministers and Justices were sufficient assistants But in the last there was a grievance in which 't was proper for the King 's extraordinary Justice to relieve them Et ad habendum Commune Consilium Regni de scutagiis assidendis for the assessing of Escuage which was part of the work of the Curia they should be summoned as is therby provided Even before the Normans coming the Kings used to celebrate Feast-days with great solemnity and at those days they chose habere colloquium to consult with their People So King Eldred summoned all the Magnates of the Kingdom to meet him at London on our Lady-day In festo Nativitatis B. Mariae universi Magnates Regni per Regium Edictum summoniti c. Londoniis convenerunt ad tractandum de negotiis publicis totius Regni so King Edgar had a Great Assembly and called it Curiam suam at Christmass Cum in natali Dominico omnes Majores totius Regni mei tam Ecclesiasticae Personae quam seculares ad Curiam meam celebrandae mecum festivitatis gratiâ convenissent coram totâ Curiâ meâ corroboravi That the Curia Regis then consisted not of the King's Tenants only I could shew more particularly by a discourse of the Feudal Law and of what prevalence it was here before the Normans time But I think there is enough to this purpose here from one Piece of Antiquity which shews what in Ancient time made a Churl or Pesant become a Theyn or Noble and that so Anciently that in a Saxon MS. supposed to be wrote in the Saxon time it is spoke of as antiquated That was five hides of his own Land a Church and a Kitchin a Bell-house and a Burrough-gate with a Seat and any distinct Office in the Kings Court This Churle is in an Ancient MS. cited by Mr. Selden called Villanus so that if a man were not Free-born if he could make such an acquisition he became ipso facto a Thane a Free-man as they were often used the one for the other which I think is easily to be collected from several places in Doomsday Book and as at that time such circumstances with a place in the King's Court made a Thane or Free-man so a Thane or Freeman had a place in the Great Court as we see Edgar's Curia had all the Majores totius Regni without any qualification
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
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-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
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
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