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 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.

Jani Anglorum Facies Nova.

THat King John's Charter exhi∣bits 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 'tis 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 understand∣ing the Ancient Records and Histories, which mention the Great or General Coun∣cils, in his distinctions between the Curia Regis, and Commune, or Generale Concili∣um Regni, Barones Regis, and Barones Re∣gni, 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 inter∣venerit, 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 'tis not necessary to the maintaining a real difference, to insist up∣on it, that none of these words were ever used to signifie what is the natural signifi∣cation of the other: for Example, Baro∣nes 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 toge∣ther, the Barones are a Rank of men supe∣riour to the ordinary Milites; 'tis enough to prove that the differences above menti∣oned 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 Im∣mediate Tenants.

Nullum Scutagium vel Auxilium Ponam in Regno nostro, nisi per Commune Consili∣um Regni nostri, nisi ad corpus nostrum re∣dimendum,

& ad primogenitum filium no∣strum militem faciendum, & ad primogeni∣tam filiam nostram semel Maritandam, & ad hoc non fiet nisi rationabile auxilium. Simi∣li modo fiat de Civitate Londinensi. Et Ci∣vitas Londinensis habeat omnes antiquas Li∣bertates, & Liberas consuetudines suas, tam per terras, quam per aquas: praeterea, volu∣mus & 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 Es∣cuage, a Common Council should be held; and the City of London, all Cities, Bur∣roughs, 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 be∣sides 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 Ci∣vitates, 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 Johan∣nem, Regem Angliae ex unâ parte, & Rober∣tum 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 Domi∣nii

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 li∣bertatum, & aliarum libertatum in cartâ de libertatibus forestae, Arch. Ep. Ab. Pr. Co∣mites, Barones, Milites, liberè tenentes & omnes de Regno nostro dederunt nobis quinto-decimam partem omnium mobilum suo∣rum.

The Charter here mentioned of the Fo∣rest 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 tenen∣tes, & 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 up∣on 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, e∣ven as they who are fond of the conjecture of their being the full Representative Body of the Nation would have it. Et ad ha∣bendum Commune Consilium Regni de auxiliis assidendis, aliter quam in Tribus casi∣bus praedictis, & de Scutagiis assidendis sub∣moneri faciemus Arch. Ep. Ab. & Majores Barones Regni singillatim per literas no∣stras. Et praeterea faciemus submoneri in generali per Vicecomites & Ballivos nostros omnes alios qui in capite tenent de nobis ad certum diem, scilicet ad terminum Quadra∣gint. dierum ad minus, & ad certum locum in omnibus litteris submonitionis causam sub∣monitionis illius exponemus, & sic factâ sub∣monitione negotium procedat ad diem assigna∣tum, secundum consilium eorum qui praesen∣tes 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 Escu∣age: The Aid I say, and shall show, was from those Tenants which held of the King in Comon Socage, such as held Gelda∣ble, or talliable Lands, the Escuage con∣cern'd

the Tenants by Knights Service, but both concern'd only the King's Te∣nants in chief, which appears in the ve∣ry confining the Summons to the Ma∣jores Barones Regni, and others which held of the King in Capite.

Whereas (1) there were Majores Baro∣nes, 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 ob∣lig'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 encou∣ragement of those great men that adven∣tured 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 Te∣nendum sibi & Haered. ita verè ad gladium, si∣cut 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 u∣nusquisque eorum Curiam suam habeat libe∣ram 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 ve∣ry extraordinary power: Comite Cestriae gla∣dium Sancti Edwardi qui Curtein dicitur an∣te Regem bajulante, in signum quod Comes est Palatinus, & Regem si oberret habeat de jure potestatem cohibendi, &c.

Though this was the chief Count Pala∣tine, 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 le∣gunm quas statuit inconcussa firmitas, ut null••s Miles pro qualicunque commisso plus septem so∣lidis, cum in aliis Provinciis ob parvam occa∣si 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 Che∣ster, 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 Te∣nants in Capite (obliged to the ordinary In∣cidents of such Tenure) were, was no ge∣neral 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 Co∣mites Barones ac Milites qui de eo tenebant in Capite cum ipso erant corporaliter praesen∣tes, & pecuniam suam ita inaniter effuderunt, quod inde pauperes omnes recesserunt, unde Re∣gi 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 ser∣vice which the Kings Tenant was to per∣form. That this concern'd the Kings Tenants in Capite by K^ts. service, and no others (ex∣cept 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 Te∣nants in Capite, they only most commonly

attending the King in Person, though some∣times 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 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 Com∣mon 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 Do∣mini Edw. Consul. & propon. quae hab. pro∣ponenda. Nay so careful were they that the Kings Feudal Jurisdiction should not in∣terfere with the Earls or other Lords there, that they insisted upon it as their Preroga∣tive, 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 Che∣ster, could be no part of this Common Coun∣cil, 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 se∣cundum consuetudinem per quandam praeroga∣tivam hactenus in Com. Cestr. optentam & u∣fitatam 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 ali∣as terr. & ten. in Com. praed. vel alibi de Do∣mino 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 Comi∣tatus 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 Char∣ter, 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 ap∣pear, 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 o∣ther Persons present. For this it is very observable, there is nothing but Aid and Es∣cuage mentioned, nothing of Advice or Authority given in the making of Laws, which were ever enacted with great solem∣nity, and all the Proprietors even of Palati∣nate Counties were present in Person or Le∣gal 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 be∣half of some of his great men, who had complained to the Pope that he had exclu∣ded

them from his Councils. The King answers that they had withdrawn them∣selves, and that Falcatius de Brent the chief of them, was by the advice of the Magna∣tes totius Regni, all the great men of the Kingdom, called and admonished to receive the Judgment of the King's Court, accord∣ing 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 rea∣son of great Possessions, and a very conside∣rable 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, be∣sides 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 Mino∣res General by the Sheriffs, and 40 days no∣tice; 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 Ar∣gument 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 'tis 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 ap∣pears 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 'twas Sanz Leurassent, with∣out 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 Judi∣cious 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 Parli∣amentary Consent, is to be taken for granted after this solemn determination; the only question is, whether 'twas 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 to Portsmouth; they which were summoned to the last are spe∣cified under the Denominations of Comi∣tes, Barones & Omnes qui Militare Serviti∣um 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 Mili∣tary Aid given; they that were with him at Dover are not particularly described by Matthew Paris, but he tells us, Convene∣runt

Rex Anglorum, & Pandulphus cum proceribus Regni apud domum Militum, Templi juxta Doveram 15. die Maii, ubi idem Rex juxta quod Romae fierat sententia∣tum, resignavit coronam suam cum Regnis Angliae, &c.

This was Communi Consilio Baronum no∣strorum, as Matt. Paris and Knyghton ren∣der the Charter.

As Matt. Westminster ad optimum con∣silium 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. Du∣ces, Comites & Barones, Milites & Servien∣tes cum equis & armis: So that here was a Military Summons to them that ought to come, because of Services, which is ex∣plained by the Summons to Dover, which was to Omnes qui militare servitium ei de∣bebant, 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 there∣fore came not, or if they came as they of∣ten did in Hen. 3. time, upon the like sum∣mons, 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 up∣on, or pretend to a Representation of the whole Kingdom.

Indeed I meet with a MS. wrote I sup∣pose in the time of Hen. 6. above two hun∣dred years past, the Author of which (be∣ing induced by all the Records, or Histories, which had then appeared to him, to be∣lieve 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 Pro∣cerum Arch. Ep. Ab. Prior. Comitat. Ba∣ronum, 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 o∣ther Dignified Clergy, who held not of the King in Chief, and yet were very nu∣merous, together with the whole body of the inferiour Clergy, were entirely exclu∣ded from, and never admitted to this Com∣mon 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 Nega∣tive, that the King's Tenants could not within the meaning of this Charter make the Common or General Council of the Na∣tion: 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 auxili∣is assidendis aliter quam, &c. & de scutagiis, &c. So that 'tis 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 King∣dom dwindles into a Common Council of the King's Tenants for matters concerning their Tenure.

If no instance can be shewn from Re∣cord 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 o∣ther cases wherein the consent of a Com∣mon Council was requisite, concerned Te∣nants only, since only their consent is re∣quired, 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 So∣cage 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 Nor∣mandy, which often occasioned the expo∣sing

their Sacred Persons, so little stood in need of and was likely so rarely to hap∣pen, that there was no need to redress, by the Statute of West. any grievance ari∣sing 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 Nega∣tive 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 So∣cage 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 mo∣tion 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, be∣cause of their Servitium Scuti, Service of the Shield, that upon Tenants of their De∣mesns in Common Socage, Tallage, which is a word that might be of a large extent, as it signifies a cutting 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 up∣on 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 'twas 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 ex∣igatur vel capiatur nisi servitium suum libe∣rum quod de jure nobis facere tenentur, & prout statutum est eis & illis à nobis conces∣sum jure haereditario in perpetuum, per Com∣mune Concilium totius Regni nostri praedicti.

In a General Council of the whole King∣dom 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 Allegi∣ance and by the Law of Association, or the revival of the Frank Pledges, every Free∣man was tied to Service for the Defence of the Peace and Dignity of the Crown and Kingdom, and by the Association more par∣ticularly to maintain Right and Justice; for all which they were to be conjurati fra∣tres sworn Brethren.

And besides this there were Services be∣longing 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 in∣veniantur.

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 con∣sisted 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 An∣gliam VI. solidos accepit, he accepted as a vo∣luntary

guift 6 s. of every hide of Land throughout the Kingdom, if 'twas with∣out consent, 'twas against his own Char∣ter, 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 extraor∣dinary.

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 mo∣ney 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 in∣tended, when it is spoke of the Services of the Tenants of the King's Ancient De∣measn 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 Ser∣vitium Decem librarum Regi, ad Scaccari∣um annuatim reddendum pro omni Servitio, & Regidedit intelligi quod idem Manner non antiquo dominico Coronae Regis Angliae nec est de aliquibus temporibus retroactis in Tal∣lag. per Progenitor. Regis Angliae in domini∣cis 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 cer∣tain Rent of the gift of Hen. 2. and was never afterwards talliated, quum Praedeces∣sores nostris Reges Angliae & nos talliari feci∣mus 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 dis∣pute

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 'tis then shewn that they had seve∣ral 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, ac∣cording to that Record, 11 Hen. 3. Asse∣dimus auxilium efficax in Civitati nostra London. Ita quod singulos tam Majores quam Minores de voluntate Omnium Baro∣num nostrorum Civitatis ejusdem per se talli∣avimus. Et ideo providimus simile auxili∣um 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 re∣quired, things were carried by the Majo∣rity of voyces amongst them that were present upon his Summons, which some∣times were very few; as when he held his Court at Westminster in the fifteenth of his Reign on Christmass the chief time, 'twas cum pauco admodum Militum Comita∣tu, 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 Ed∣ward 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 talli∣ate 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 volun∣tate & assensu Arch. Ep. Comitum, Baro∣num, Militum, Burgensium & aliorum libe∣roum 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 no∣strae in hujusmodi casu auxilium fieri nobis debet, says the Record, and yet he had tied up his hands from raising it without con∣sent of Parliament.

However King John had in some mea∣sure 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 particu∣lars within the provision are appendant to Tenure, and none but Tenants are mentio∣ned, shall we believe that something For∣reign 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 ve∣ry good Authorities; I take leave to ob∣serve farther, that it should seem that be∣fore 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 So∣cage Tenants only. The Charter of Hen∣ry the First, which exempts the King's Te∣nants

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 de∣serviunt terras dominicarum carucarum sua∣rum 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 administra∣tion of Justice, or for the assessing of Es∣cuage 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 suffici∣ent assistants. But in the last there was a grievance in which 'twas proper for the

King's extraordinary Justice to relieve them. Et ad habendum Commune Consilium Regni de scutagiis assidendis, for the asses∣sing of Escuage, which was part of the work of the Curia, they should be summo∣ned, 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 celebran∣dae 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 di∣stinct 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 circumstan∣ces 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 from Te∣nure. 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 pre∣sumption 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 celebra∣ted 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 them∣selves 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 be∣fore, its business was confined to the Con∣troversies arising between the King's im∣mediate Tenants, other Suits, especially a∣bout 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 E∣piscopo & Ursoni de Abecot & omnibus Baro∣nibus Francis & Anglicis de Wircestresci∣râ, salutem: sciatis quod concedo & praecipio ut à modo Comitatus mei & Hundreda in illis locis & eisdem terminis sedeant sicut sede∣runt in tempore Regis Edw. & non aliter.

〈◊〉〈◊〉 enim quando voluero faciam ea satis summoneri propter mea dominica neces∣saria ad voluntatem meam.

I cannot here omit the plain observati∣on 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 Hun∣dreds, sufficient notice for attending him; so that here is a clear description of the na∣ture 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 ne∣cessary 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 'tis 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 con∣sensu 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 Fami∣lies, answering for one another by Tens, Ten Tens, or Tythings at first making an Hundred Court, and more or fewer Hun∣dreds (according to the first division or in∣crease) a Country, and for the clear under∣standing the general Words, as Principes, Thaini, Barones, Proceres, Baronagium, Bar∣nagium 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 Coun∣ties and Hundreds, that is, the men which composed those Courts were upon suffici∣ent notice to attend upon the King's busi∣ness, that is, constitute the Councils, and therefore Simeon of Durham very proper∣ly says of the Great Council, Concilio totius Angliae adunato, the same with what Ead∣merus says of the Council of Pinnedene in the First William's time, adunatis primo∣ribus

& probis viris non solum de Comita∣tu Cantiae sed & de aliis Comitatibus An∣gliae, here were the probi homines the Free∣holders 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 & congrega∣tio populorum omnium, and we find by Sta∣tutes made before this time, that the popu∣lus 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 sa∣trapiâ 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 ei∣ther 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 Comita∣tus 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 domini∣cos tractetur placitum in Curiâ meâ: Et si inter vavasores duorum Dominorum tracte∣tur in Com. &c. Though according to this the Titles to Land between all but im∣mediate Tenants, or such Lords as had none over them but the King, were deter∣minable in the County, yet sometime be∣fore 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 no∣stram sed teneantur aliquo loco certo. The King's Bench is coram Rege, and used to follow the King's Court, and was remove∣able at the King's pleasure. Here Com∣mon 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 & Justiciarios Capitales qui proprias causas Regis terminant & aliorum omnium per querelam vel per privileginm sive liber∣tatem; But as the Curia Regis was held sometimes of the Tenants and Officers on∣ly 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 Learn∣ed Authors in taking the Curia Regis to be nothing but the Court of the King's Te∣nants, of others that 'twas meant only of the Great Council of the Nation.

Whereas we may trace their frequent distinctions from the Conquest down∣wards very apparently, and very often their union.

It is agreed on all hands that the ordina∣ry Curia was held thrice a year, at Christ∣mass, 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 a∣ny Summons, they that were to come rati∣one Tenurae might well come de More; after∣wards, 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 Cu∣ria, 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 de∣termine the difference between Odo Bishop of Baieux, Earl of Kent, and Archbishop Lanfranc; if this were a Curia de More, then 'tis evident that more than Tenants in Chief; nay, all Proprietors of Lands assem∣bled 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 primori∣bus & probis viris non solum de comitatu Cantiae, sed & de aliis comitatibus Angliae

querelae Lanfranci in medium ducerentur, ex∣aminarentur, determinarentur.

Disposito itaque apud Pinnedene Princi∣pum conventu Godfridus Episcopus Con∣stantiensis vir eâ tempestate praedives in Angliâ vice Regis Lanfranco justitiam de suis querelis strenuissime facere jussus fecit.

Here all the probi homines are by variati∣on of the phrase conventus Principum, a Bi∣shop was President and pronounced the Judgment; but it was, as 'tis said after∣wards, Ex communi omnium astipulatione & judicio, this Judgment was afterwards re∣voked 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 Ec∣clesiam & 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 con∣venerunt in primo congressu ita convicti sunt ut in quo eas tuerentur simul amitterent. 'Tis 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 'twas more than a Curia of the King's Tenants and Offi∣cers, 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 mo∣ra considere, & homines Comitatus omnes fran∣cigenas & praecipuè Angl. in antiquis legibus & consuetudinibus peritos in unum convenire.

But then it adds, & alii aliorum Comita∣tum homines, and so confirms what Eadme∣rus 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 fideli∣bus suis & Vicecomitibus in quorum Vicecomi∣tatibus abbatia de Heli terras habet, salutem: Praecipio Abbatia de Heli habeat omnes con∣suetudines 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 me∣os Barones, viz.

Gaulfridum Constansiensem Episcopum, & Balwinum Abbatem, & Petrum de Va∣lonnus, & Picotum Vicecomitem, & Tehe∣hen de Heliom, & Hugonem de Hosden, & Gocelinum de Norwicum, & plures ali∣os 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 an∣tequam mea conjux in Normaniam novissimè veniret.

Cum quibus etiam sint de Baronibus meis qui competenter adesse poterunt, & praedicto placito interfuerunt et qui terras ejusdem Ec∣clesiae 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 dixe∣rint ibidem jurando testentur. Quo facto restituantur Ecclesiae terrae quae in dominico suo erant die obitûs Edwardi, exceptis his quas homines clamabunt me sibi dedisse; Il∣las vero literis signate quae sint et qui e∣as tenent. Qui autem tenent Theinlandes

quae proculdubio debent teneri de Ecclesiâ, fa∣ciant concordiam cum Abb. quam melio∣rem poterint et si noluerint terrae remaneant ad Ecclesiam. Hoc quoque de tenentibus so∣cam et sacam fiat. Denique praecipio ut illi homines faciant pontem de Heli qui meo prae∣cepto et dispositione hucusque illum soliti sunt facere.

Willielmus Rex Anglorum Goffrido E∣piscopo et Rodberto et Comiti Moritonio, sa∣lutem. Facite simul venire omnes illos qui terras tenent de dominico victu Ecclesiae de Heli, et volo ut Ecclesia eas habeat sicut ha∣buit die qua Edwardus Rex fuit vivus et mortuus, et si aliquis dixerit quod inde de meo dono aliquid habeat Mandate in magni∣tudinem 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 per∣tinent, sicut eas habebat Antecessor ejus tempore Regis Edwardi, Preterea facite ut Abbas seisitus sit de illis Theinlandis quae ad Abbatiam pertinebant die quo Rex Edwar∣dus fuit mortuus, si illi qui eas habent secum concordare noluerint, et ad istud placitum sum∣monete Willielmum de Guaregnna, et Ri∣chardum filium Gisleberti, et Hugonem de Monteforti, et Goffridum de Manna Villâ, et Radulfum de Belfo, et Herveum

Bituricensem, et Hardewinum, de Esca∣lers 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, some∣times in several together as the men of the several Counties, that is, the several Coun∣ties 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 impan∣nell'd, in the Counties, that is, by the choice of the Freeholders.

The Kings Commissioners were to pro∣nounce the Judgment in the Kings Name or stead: So the Bishop of Constance did right to Lanfranc, 'twas 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 Judg∣ment; to which the Primores & probi homi∣nes assented, for 'twas ex communi omnium a∣stipulatione; this agrees with what Bracton says of the Laws pass'd in the Great Coun∣cil 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 Na∣ture or Jurisdiction of a Court, and there∣fore 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 cer∣tifies that the Judicatores et Sectatores the Suitors at the County Court, cla∣mant habere talem libertatem quod in tali casu debent omnes Barones & eorum Seneschal. ac Judicatores ejusdem Comita∣tus summoniri audituri hujusmodi processum & Recordum & illa antiquam sigilla sua

apponant; si fuerit infra tertium Comitatum per seipsos emendare. Et hujusmodi liber∣tates a tempore quo non exstat memoria usi sunt et gavisi.

And the Chief Justice farther certifies, quòd fecit summoniri omnes Barones et Judi∣catores, 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 uni∣on 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 Sum∣mons to a Great Council as I take it in this Kings Reign, mentioned by Simon of Dur∣ham 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 or∣dinary Justice within the Counties, but that it was to them and the Sheriffs, Knights, the Freeholders of the Coun∣tys 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 appella∣tion of Milites, is evident by many Re∣cords, and even a Statute, that for the choice of Coroners which was but decla∣ratory of the common Law, as appears by several Records, before that time; I will instance in one.

Because one that had been chosen Co∣roner, was neither a Knight or Freeman, as that interprets it self, nor yet discreet, therefore a new choice is directed, Mi∣les 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 Corn∣wall Fine to the King for leave to chuse their Sheriff, 'tis said in the Record.

Milites de Com. Cornubiae finem fecerunt Rot. fin. 5^o H. 3. pars 1^a. M, 9.

And these which are here called by the general denomination of Knights, are in a∣nother Record of the same specified un∣der these names.

Episcopus, Comites, Bar. Milites libere te∣nentes, et omnes alii de Com. so that all the people of the County, that is, they which were part of the County Court were com∣prehended 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 un∣der 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 'tis spoke of only as an Office that had been.

But the Sheriff, being of the Freehold∣ers choice, not the Kings, having no cer∣tain Salary, nor Fee upon any account taken notice of in the eye of the Law; but depend∣ing 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 Vice∣comitis, that is, Tenant by Knights Ser∣vice, 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 Abba∣te Eli potuit dare absque ejus licentiâ sine sacâ.

This had been freehold within the Ab∣bots Precinct, alienable without licence, sub∣ject 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 'twas if any man had the County in fee: But the King Summoned the Barones, & Vicecomites, that is, the Vicecomites with∣out consideration of their capacity as Ba∣rons, and their Knights; 'twas 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 com∣mon Freeholders received them in the County Court, either at coming to Age, or upon becoming free by Manumission; which 'tis 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. 'tis us'd as a sign that one was not of age when he seal'd a Deed, and conse∣quently 'twas not effectual because Milita∣ri 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 ha∣beat, this was in Hen. 2. time, and then the publick delivery of Arms to all Free∣men might have been disus'd, but an∣tiently 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, & Vicecomi∣tes cum suis Militibus, his Curia was held at Whitsontide; Nec multo post mandavit ut Arch. Ep Abb. Com. Bar. Vicecomites cum su∣is Militibus die Kal. Aug. sibi occurrerent Sares∣beriae, 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 Freehold∣ers, 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 'tis a strange thing that it should be us'd for an Argu∣ment, that this was not a great Council of the Kingdom, because they were evocati•• ad fidei vinculum. For satisfaction I will of∣fer 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 Comi∣tes quam Barones qui etiam univerfaliten fidelitatem nobis publicè facientes, conces∣sis eis libertatibus & liberis consuetudini∣bus ab eis prius postulatis & ipsis appro∣batis. &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 Parlia∣ment, 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, 'tis said by Judge Cook not to be a Parliament, but the In∣ception of a Parliament, that is, no Ses∣sion: but whoever will consult the Sum∣mons to Parliament in the time of Ed. 1. & 2. may satisfie himself that there were ma∣ny Parliaments call'd, at which there were no Laws pass'd, but meerly Advice given, and yet at the end thereof, the Knights, Ci∣tizens and Burgesses had their Writs of Ex∣penses, wherein the Kings declared that they had been called to Parliament, nobiscum de diversis negotiis nos & populum Regni specialiter tangentibus tractatur.

For the last, 'tis no matter whether the cause of Summons were express'd, 'tis e∣nough if it were de quibusdam arduis, or however else was the use of that time. Besides 'tis 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 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; 'twas in∣deed in Curiâ Regis as Gervacius, and the Author of Antiquitates Britannicae shew, but not the Ordinary Curia, for 'twas 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 contro∣versie between the Archbishop of York, and the Bishop of Worcester, was determi∣ned 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 com∣prehensive 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 re∣presentation 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 representa∣tive, or meeting in an entire Body, be∣cause 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, Convo∣cavit Rex multitudinem Nobilium Angliae, the multitude of the Nobles of England, says Gervace of Dover, this was about Ec∣clesiastical Affairs, Concerning the bring∣ing 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, especi∣ally 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 ob∣viavit, Ibi in mirum congregatis in aulâ Re∣gali 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 'tis not pro∣bable 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 'twas 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 Do∣mini Glavorniae Curiam suā tenuit, & at this Court I find only some Ecclesiastical Prefer∣ments disposed of to three of his Chaplains, which required no solemn Consult; but his Laws passed per Commune Concilium toti∣us 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, 'tis manifest there was and we may find the Marks of distinction between his ordinary Curia & Great Council or Par∣liament. He was crowned convocatis terrae magnatibus, says Bromton, volentibus animis Provincialium Malms. that is, the whole

Kingdom agreeing or the Major part; in∣deed 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 'twas more than a Curia de more, for there were Justiciarii ac Principes totius Angliae.

In the Third, Turmas optimatum accivit & Guentoniae congregavit, he called toge∣ther the Troops or Army of Nobles, Ba∣rones aloquitur, inveighs against his Bro∣ther Robert, and perswades them to a War, & ut consilium inirent quid sit agen∣dum 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 na∣med Archbishop by the King, & concordi voce sequitur acclamatio omnium, the noyce and publick acclamation witnesses the peo∣ples consent, and this is said to be secundum totius Regni electionem, or as another Author.

Rex Anglorum consilio & rogatu Prin∣cipum suorum, Cleri quoque & populi petiti∣on•• et electione.

The King being upon leaving England, to settle his Affairs in Normandy, Ex prae∣cepto Regis omnes ferè Episc. unà cum prin∣cipibus Angl. ad Hastings convenerunt. Here Anselm pressed that there might be Gene∣rale 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 se∣dis Apostolicae possit fidem terreno Regi ser∣vare 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 me∣dio Procerum et conglobatae multitudinis se∣dens. 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 ho∣nest Freeholder steps out of the throng, de multitudine prodiens, and with great de∣votion sets before his Holy Father the Ex∣ample of Job's patience, upon this the Pre∣late hugged himself in the opinion that the populus, the Populacy were for him, though

the Princes, the heads of the Assembly were against him.

This Controversie is adjourned to the Curia, on Whitsontide, which still was no ordinary one: Anselm was celebrating a Curia by himself, when he should have at∣tended at the King's, according to the ad∣journment, but it seems he expected special Summons, which he has accordingly by word of mouth, no formal Writ, but Mes∣senger. The King tenuit Curiam suam in ipsâ festivitate apud Windlesoram, and there were Proceres, et coadunata multitudo, a ve∣ry Solemn Convention.

The Authority cited by Sir Hen. Spel∣man says, that the Clergy was not at the Council at Roch. in quo fermè totius regni nobilitas praeter Episcopos & Clerum conveni∣tur; so that it would seem a President for that Parliament, in the time of Edward the First, taken notice of by Bishop Jewel, of which he says our publick Monuments, that is, Records have it.

Ha••ito Rex cum suis Baronibus Parlia∣mento et Clero (id est) Arch. et Ep. excluso statutum est. There it seems the Lords and Commons, who undoubtedly came at that time, without relation to Tenure, are Ba∣rones sui: But whether the Council at Roch. had the Clergy present or no, the Bishops and Barons tell Anselm at another

Great Council, how much soever he thought the Assembly on his side, that placitum ha∣bitum est contra se, his pretences were over ruled, totius regni adunatione.

Yet notwithstanding their sense then delivered, they gave a farther day till Whitsontide; so that in effect 'twas Judgment nisi, then indeed Anselm with a side Wind got an Advantage of the King, he cunningly waves the question, whether he might swear Obedience to the King, and puts it only whether the Pall were to be received from the Pope, or the King, and carried that Point, that it belonged to the singular Authority of Saint Peter.

This was a General Council on the Feast day, Adquievit Multitudo Omnis, unde cum omnes silentio pressi conticuissent, Statu∣tum est. It seems till the Multitude rested satisfied, the Law could not pass.

But two years after on Whitsontide was held no more than the Ordinary Curia—

Cum igitur in Pentecoste festivitatis gra∣tiâ Regiae Curiae se presentasset: peractis igitur festivioribus diebus diversorum ne∣gotiorum causae in medium duci ex more coeperunt—

That 'twas usual when the height of the feasting was over, to go to the Tryals of Causes, or Matters of Ordinary Judicature. In August following is held a Great Coun∣cil,

the King being, de Statu Regni actu∣rus.

Then he sends out a General Summons.

In sequenti autem mense Augusto cum de Statu Regni acturus Rex, Episcopos, Ab∣bates & quosque Regni Proceres in unum praecepti sui sanctione egisset, & dispositis his quae adunationis illius causae fuerant; &c. Anselm asks leave to go to Rome, but is denied it. In October following there was a General Council at Winchester.

Wintoniae ad Regem ex condicto venimus, Eadmerus was there himself.

The first day the Tumult from the vast multitude was so great, that they could do nothing, and therefore broke up the Court, and adjourned to the next day.

Orta est igitur ex his quaedam magna tempestas diversis diversae parti acclamanti∣bus; the sense of the Assembly was, that Anselm should observe the King's Laws; upon which he departs the Realm in a pett.

'Twas pity Eadmerus went with him, so that we loose the account of what passed in his absence. I think however we have enough to prove that there were then no less, nay greater Assemblies, than what now compose our Parliaments, nay the very word Parliament was not unknown in that time. Parliamentum dixêre Croy∣landenses

Caenobitae sub Tempore Willielmi Secundi.

For farther proof 'tis observable, that this King stood upon it, that Malcolm King of Scots, Secundum Judicium tantum Baro∣num suorum in Curiâ suâ Rectitudinem ei faceret.

That is was to do him right, or answer his demands, according to the Judgment of his Curia, or Ordinary Court of Justice; Malcolm pleads that 'twas to be in the confines of both Kingdoms.

Secundum Judicium Primorum utriusque Regni, that is, according to the Judgment of a Great or General Council of both King∣doms united, and who were the Primores that constituted the Great Council of Scot∣land, even till the 23. of James the First, is evident by his Act of Alteration, or re∣commendation of a Change, which has it, that the small Barrons, and Fee-Tenants (or Freeholders) need not to come to Par∣liaments, nor General Councils, without Election, which shews that till then they did: And how they came here in this King's time, I leave any body to think as they please, sure I am here were more than Tenants in Chief.

There was one Council in his Reign, which had no Addition to it, the Author says only Celebravit Concilium, and this, I

take it, was no more than an Ordinary Cu∣ria, especially it being Octabis Epiphaniae; And there was a Legal Tryal by Duel, and by Judgment of the Court, the Party con∣quered had his eyes pull'd out, and his stones cut off. That besides the Great Council, this King above mentioned, held the Ordinary Curia, Sive de more, we have clear Authority. Cum gloriosè & patrio honore Curiam tenuisset ad Natale apud Glocester, ad Pascha apud Winchester, ad Pentecosten apud Londoniam.

By the foregoing Instances, we may see, notwithstanding Polydore Virgil's sup∣pressing, as much as in him lay, the MS^s. which might take from the Authority of his History, how many rise up in Judgment a∣gainst his Assertion in the time of King H. 1.

Illud oppositè habeo dicere, Reges ante haec tempora non consuevisse populi conventum consultandi causâ, nisi perrarò facere, adeò ut ab Henrico id institutum Jure Manâsse dici possit—

And it seems the great Mr. Lambert (who possibly was the first that after the Ages, in which the word Baronagium was used and known to express the full Great Council or Parliament received its true Notion, viz. that both the Nobility and Commonalty of the Realm were meant under these words, the Barons of the Realm) this

Great Man it seems, had not met with those MS^s. which since have offered their Light to the World; otherwise he would not have subscribed to the foregoing opinion of Polydore Virgil, however Polydore him∣self, as far as his Authority goeth, gives us to believe the frequency of such So∣lemn Councils, from this King's time downwards. This Prince was so pleased with his People, and they so much at ease under his gentle Reign, there was that mu∣tual confidence in each other, that 'tis a question whether he ever held a Solitary Curia of Tenants and Officers, only we find, Tota Nobilitas cum populi numerositate, cuncti Majores adunati, and Regnum Angliae. All at several times at the Curia de More.

At other times we have Commune Conci∣lium Gentis Anglorum, Clerus & populus congregatus, the same called Commune Con∣cilium Baronum Regni Angliae.

Regni Nobilitas sua Sanctione adunatâ, Concilium Magnum—

Magnum placitum apud Northamtune congregatis, Omnibus Principibus Angliae, that is, Baronibus, that is, Clero & Populo—

Though 'twere a pleasure to dwell upon this King's Reign, yet it is needless to insist upon further proof, that his Councils con∣sisted

of more than Tenants in Capite and great Officers. King Stephen was elect∣ed King, a Primoribus regni cum favore Cleri & Populi, Clericorum & Laicorum uni∣versitate, ab omnibus. viz. tam Presul. quam Com. & Baron.

Stephanus his et aliis modis in Regno An∣gliae confirmatus, Episcopos et Proceres sui reg∣ni regali edicto in unum convenire praecipit, cum quibus hoc Generale Conciliam celebravit.

This to be sure was more than the Or∣dinary Curia: The eighth of July two years after a Council was held at Oxford, which broke not up till September follow∣ing, this was Conventus Magnatum, was not on the ordinary Court day, yet per∣haps was not a Great General Council: It was only for matter of ordinary Justice; some of the Laity had complain'd of two Potent Bishops that fortified their Castles, as if they intended to rule over them by the Temporal, as well as spiritual Sword, and had made a Catholick Interpretation of St. Peter's, ecce Duo Gladii.

It seems the Bishops Plea was, that this was no Ecclesiastical Synod, that is, in the true sense, not Assembled for Ecclesi∣astical, but for Civil Matters; but in their sense, that they would be tryed by the Canons, and Canonical Persons; the Debate is put off to be determined, in a General Council appointed to be at Winchester.

Here the Clergy set up for themselves, & having the Popes Legat, thought themselves a body sufficiently entire, without that other part of the Clerus, Gods Inheritance, which used to make up eventhese Assem∣blies; with much ado, they first let in the Nobility Proprietors of Land, Omnes Baro∣nes in eorum communionem jamdudum recepti.

They had not sate four days but the Londoners-Citizens demanded to be ad∣mitted amongst them as Citizens or Tra∣ders, they were no part of the Nobility, 'twas a disparagement for the Son of a Noble Man a Freeholder to be married to a Trader. And this our constitution a∣greed with that of Poland, where Mer∣cator and Nobilis were alway contradi∣stinct, and there is a remarkable Clause in one of their Statutes. Nobiles appellandos censemus, qui licèt matre Populari, patre ta∣men Nobili sunt procreati, quorum tamen pa∣rentes & ipsimet vivant & vixerint ad in∣star aliorum Nobilium in regno ut supra; & non exercuerint vel exerceant eas artes & actiones quas communiter cives & qui in ci∣vitatibus morantur exercere solent; per con∣trarium enim usum nobilitas ipsa in popula∣rem, & plebeiam conditionem transire solet, and with them the Inhabitants of Cities which were sicut Proceres sent Deputies, whereas the Possessionati the Nobles came to the Great Councils in person.

There came to the Council above-named a Representative in the name of the whole City of London. Feriâ quartâ venerunt Londinenses, & in Concilium introducti cau∣sam suam eatenus egerunt, ut dicerent missos se a communione quam vocant Londiniarum, but the Clergy carried it with an high hand, and told them, that it became not them who were principal men in the Kingdom and sicut Proceres, as it were Nobles, to fa∣vour them who forsook their Lord, which I think was meant of the Pope, and his Clergy: to be sure they excommunicated the King, and those that held with him, for medling in their matters: but they had much ado to quiet the City of London for the haughty Answer they gave them.

They that were at this Assembly came not as the King's Tenants, or be∣cause of any Office in his Court. Not∣withstanding all the Canonical Thunder, at a great Council possibly of Lay-men only, Habito post modum Concilio coram Primoribus Angliae, statutum est ut omnia per Angliam, Oppida, Castella, Munitiones quae∣quae, in quibus secularia solent exerceri ne∣gotia Regis & Baronum suorum juri cedant.

Whereby all the strong holds which Clergy-men had were subjected to the Do∣minion of the Laity, whether only the King's Barons, Barones Curiae suae were to be Judges in the disposal is needless to deter∣mine.

But Statutum est coram Primoribus Angliae, This was made a Law by all the Baronage of England.

We have several other Councils in this King's Reign.

In the seventh of his Reign, there is an Act of Recognizing Matilda the Em∣press her Title to the Crown by all but the men of Kent, and 'tis not improbable that they looking upon themselves as a freer People than the rest, thought it was not fit for them to own any Title but meer Election.

Maltida Imperatrix ab omni gente Anglo∣rum suscipitur in Dom. exceptis Kentensi∣bus.

In the ninth the Proceres are Summoned per Edictum Regium to St. Albans.

The same year is a great Council at Northampton called Parliamentum.

In the seventeenth, Generale Concilium convocavit at London, to which were cal∣led the Bishops and all the Proceres.

In the ninteenth and last of his Reign, all the Principes met at Oxford ad octavis Epiphaniae, and soon after the Colloqui∣um at Oxford they met at Dunstaple.

And he held another great Council the same year at London on Michaelmas tam pro negotio Regni quam provisione Eccles. Ebor.

Cum Episcopis & Optimatibus terrae, this was both for Ecclesiastical & Civil Matters.

The Council of Clarendon with that part of its Constitutions which hath been much controverted of late, will detain me and the Reader too long to examine the several Instances of great Councils or of ordinary Courts in this King's Reign.

By the examination of this possibly I may give some additional light to what I have already represented.

The end of this Convention was, to vindicate the Crown and Kingdom of En∣gland from the usurpations of the Clergy, who insisted upon Exemptions, and an uncontroulable license to do ill upon pre∣tence of the sacredness of their persons. Whereas the King would allow them no other priviledges, or exemptions, than what his laws had given them.

This Council was compos'd of more than tenants in chief, 'tis call'd a Great, and full Parliament; Generale concilium; the parties present are under divers denomi∣nations, all coming to the same: Rex, Arch. Ep. Ab. Pr. Com. Bar. & Proceres Regni, as M. Paris, Rex & Magnates regni, Mat. West. Anglicani regni praesules & Proceres, Gervasius; Episcopi, & proceres, Radulphus de Diceto.

Praelati, proceres & Populus regni, as another, Clerus & populus regni, Hoveden.

The whole Kingdom as Dr. Stilling∣fleet

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 ordi∣nary Curia Regis, to which the Kings Te∣nants 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 acquisi∣tion 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 al∣lowed 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 te∣nure only qualifying them for Judges in Parliament (as before in the Kings ordi∣nary 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 jurisdicti∣on which they have as tenants, or as succe∣daneous 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 legisla∣ture 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 ca∣pite, 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 pos∣sessiones suas de Domino Rege sicut Baro∣niam, &c. & sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baroni∣bus, &c.

That is, except as is there excepted, these ecclesiastical tenants or Barons were to be present, or interested in the Judge∣ments 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 Baro∣nes 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 om∣ni servitio, of which the Records are full, who were not ordinarily to give their at∣tendance at the Curia. But tenure per Ba∣roniam, was I take it in those times no more than tenure by Knights Service in Capite. This perhaps I could prove by ma∣ny records. I shall instance in one to the honour of a Noble Peer of this Realm, now Earl late Baron of Berkley, as his An∣cestors 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 Quin{que} Militum. An office is found in Edw. the third's time upon the death of Maurice Berkley, and there 'tis 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 no∣thing 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, Par∣son, 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 Cu∣ria, Omnes qui de Rege tenebant in Capite, mandari fecit: upon the Bishops with∣drawing from the judging of Becket,

(the ground of which I shall soon exa∣min.)

Quidam Vicecomites & Barones secundae dignitatis were added, 'twas quidam Viceco∣mites some Sheriffs, it could not be all be∣cause several were Majores Barones, ha∣ving 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 be∣ing 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 questi∣on 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 them∣selves to be excluded the Curia, quando de illis materiis agitur; It will I think be evi∣dent that the Bishops, as a part of the house of Lords, answering to the Court of the Kings tenants, never had any right to 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 or∣dinary 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; be∣ing 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 plead∣ing 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 where∣as 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 immedi∣ate successor, that the Barons were Judges in Parliament, as the Tenants and Officers had been in the Curia Re∣gis.

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. Grand∣son to this King, who enforc'd the leges avitas, in this particular, and others con∣tain'd in the Constitution of Claren∣don.

This Great Lawyer, having enumera∣ted 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 & membro∣rum, & furcas, & alia quae pertinent ad exe∣cutionem judicii, &c.

Here this Judicium vitae & membrorum must be meant of the whole tryal, or ju∣risdiction, otherwise it is supposed, that he tells us, the King granted those men Li∣berty to pronounce, or depute those that should pronounce, the final Judgment, who yet neither by themselves, nor Depu∣ties, had any thing to do with the praelimi∣naries, the questions arising between, and leading to the Justice of the Judgement, which is an absurd supposal.

The having Judicium, or power in judi∣cio, 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 'tis 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 divi∣ding 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 con∣trary 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 Apolo∣getical, where he shews the number of Sta∣tutes made against Provisors, in express terms: And yet when the King of England comes to settle the points in difference, be∣tween him and Pope Martin the 5. there is no manner of regard had to the Statutes of Pro∣visors, 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 bet∣ter 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 acceptati∣on, 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. Prin∣cipes Sacerdotum & seniores populi licet non dictent judicia sanguinis, eadem tamen tractant disputando & disceptando de illis: ideo seque im∣munes à culpâ reputant, quod mortis aut trun∣cationis membrorum judicium decernentes, à pronunciatione duntaxat, & executione poe∣nalis sententiaese absentent.

Here he expressly confirms the sense, which I shall enforce, and makes the vo∣tings in the preliminaries, mortis aut trunca∣tionis membrorum judicium decernere.

Some Clergy-men it seems did thus de∣cernere judicium sanguinis, and he blames them for it, but can their practice of any thing against law be an Argument that there was no law against such practice? And besides this being brought to shew the meaning of the constitution of Claren∣don, 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 Cu∣ria 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. Sel∣den, who was best acquainted with the se∣veral 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 posses∣sions 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 Constituti∣on 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 'tis 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 sen∣tence, not that they should stay at the Sen∣tence: 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 them∣selves upon the account of the Arch-Bishops prohibition.

And the King reply'd, that (viz. that Pro∣hibition) had no force against the Constitution of Clarendon, which was in effect to say, you have no manner of pretence, no Ca∣non forbidding you to pass judgement upon Becket, and therefore according to the Con∣stitution 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 Capi∣tal matter, it being call'd Crimen laesae Ma∣jestatis.

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 lan∣guage of that age Becket was accus'd or im∣peach'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 the∣sauri fraudulosa, placita de pace Domini Regis infracta, &c. Hereby every breach of the Kings Peace, was Crimen laesae Ma∣jestatis; every breach of the laws by Acts of injustice is a breach of his peace, contra pacem & Coronam; therefore Becket ha∣ving 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 o∣ther crimes, adds Et siquae sunt similia; quae scilicet crimina ultimo puniuntur suppli∣cio, 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 pu∣nishment annext by law, are Crimina laesae Majestatis, though neither homicide, nor firing, &c. nor any direct and open breach of the peace.

'Tis evident that he confines not placi∣ta 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 Indict∣ment be in the Kings name.

Nisi accusator adjiciat, de pace Domini Re∣gis 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 remit∣ted 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 ha∣bui

ad eam citationem: still the King urges the Proceres to proceed to judgement a∣gainst him, he finding them ready to com∣ply 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 Comiti∣bus & Baronibus suum exigit Rex judicium: evocantur quidam Vicecomites & Barones se∣cundae 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 'tis 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 'tis resolv'd that a subjects bring∣ing 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 Trea∣son. Now this publishing a Bull of ex∣communication, and thereby assuming the exercise of justice without the Kings authority, is certainly a much greater of∣fence against the Kings Crown and digni∣ty, than barely the appeal: however ei∣ther might have been Crimina laesae Ma∣jestatis, against the Crown and Royal dignity, and yet not capital, as Glanvile shews.

But this is further observable that the King himself appeal'd to the Pope in this very controversie between him and Becket.

Hâc igitur celebri celebratâ & accele∣ratâ appellatione misit Rex, misit & Ar∣chiepiscopus nuntios ad Dominum Papam. And according to Grev. the Bishops appeal'd to the Pope against Becket, with the great approbation of the King.

Wherefore the Article in the Constitu∣tion of Clarendon touching appeals, the first declaration that I find of the law in this point, comes not up to Beckets ap∣peal.

De appellationibus si emerserint ab Archi∣diacono, debent procedere ad Episcopum, ab Episcopo ad Archiepiscopum, Et si Archiepi∣scopus defuerit in justitiâ exhibendâ, ad Domi∣num Regem est perveniendum postremò, ut

praecepto ipsius in Curiâ Archiepiscopi contro∣versia terminetur; ita quod non debet ulte∣rius procedere absque assensu Domini Regis.

This is of causes begun in ecclesiastical Courts, these were not to go further than the Archbishops Court, that is, not to the Pope without the Kings licence; now ad∣mit an appeal had been before the Pope with the Kings licence, yet it might have been Crimen laesae Majestatis, to put the Popes sentence in execution without new licence had: but where a matter lay not in these inferiour Courts, as Becket's did not, whether the appealing in such a case had been against the Law then, I make a doubt, I am sure it is not prov'd at least, that 'twas capital. I know not of any greater penalty than a Premunire ever annext to it, till the Reformation. But if it were capital from the beginning, 'twould not be any thing to the purpose here, because Becket was not impeacht for appealing.

I cannot but charge this Author with a great deal of artifice in this place, and of much labour to reconcile things, as I should think, very disagreeing: he tells us that according to Fitz-Stephen, Becket was accus'd of Treason, and the Bishops sate together with other Barons, and because it did not come to a Sentence of death, after a great debate between the other Lords and Bishops about pronoun∣cing

the sentence, the Bishop of Winchester did it: here he jumbles together, what in another place he rightly divides, he takes it right that there were Two causes, the one that of John the Marshal, the other that which he would make capital; in the first, the Bishops did certainly sit in judgement, there the Bishop of Winch. pronounc'd the sentence; as Mr. Selden (who this Author confesses has printed the proceedings of this judgement very exactly) shews out of Stepha∣nides: for this our Author do's not pretend that Becket was accus'd of Treason, and yet he says that the Bishop of Winch. gave sen∣tence, where he was accus'd of Treason; nay, though his own Author Stephanides is express, that upon the second charge, which contain'd the suppos'd capital matter, the Bishops withdrew, & quidam Vicecomites & Barones secundae dignitatis were taken into the Court.

Thus I think I have shewn that the King did not declare at Northampton, that the Bishops were bound by virtue of the Constitu∣tion of Clarendon to be present and to give their votes in cases of Treason, (as such were capital) but rather it not being a Capital case upon which the King demanded judgement, that therefore the Bishops were by that Constitution oblig'd to be there.

Admitting that this constitution is no law prohibiting Clergy-men to Vote in Capitals, only obliging them to the duty of their tenure; and leaving them to act in matters of blood, according as they thought themselves bound by the Canons: Yet I think herein it appears that those Canons were received by the temporalty, and so became laws.

But not to insist upon this, the question here is,

1. First, What the Canon law prohi∣bited.

2. What force that prohibition has at this day.

1. The Author of the Grand Question has I conceive misrepresented the sense of Lanfranc's Canon concerning this matter, which he has render'd thus:

That no Bishop or Clergy-man should con∣demn a man to death, or give vote in the sen∣tence of condemnation. Here he confines the prohibition to the final judgement on∣ly; and yet says, Lanfranc had brought the Canon of the Eleventh Council of Toledo in∣to England: So that Lanfranc's and that of Toledo he yields must speak the same thing; That of Toledo, is this:

His à quibus Domini Sacramenta tractan∣da sunt, judicium sanguinis agitare non licet; & ideo magnopere talium excessibus prohi∣bendum

est, nequi praesumptionis motibus agitati aut quod morte plectandum est sen∣tentiâ propriâ judicari praesumant, aut trunca∣tiones quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas praecipiant.

His à quibus Domini sacramenta tractan∣da sunt, undeniably reaches to Bishops, as well as inferior Clergy, and so removes the cavil which many make upon some Canons, or Laws, mentioning Clerk, or Clerus only.

Here 'tis laid down for a principle, non de∣bent agitare judicia, they must not to debate upon such judgements, or try such causes, that is as Petrus Blesensis expresses it, ea∣dem tractare disputando & disceptando de 〈◊〉〈◊〉.

Now can we think the wise Council of Toledo understood sense so little to declare, that Clergy-men ought not to debate about, or try such causes, and therefore should prohibit only the final judgement? nay 'tis very clear that they, agreeably to the maxim they receive, forbid them quod morte plectendumest sententiâ propriâ judicare, to judge of, or try the matter, or cause in their own persons; not but that where the King gave them judicium vitae & membro∣rum, as we find in Linwood, they might de∣legate authority to others to judge, with∣out breach at least of after Canons. But

this of Toledo I conceive wholly shuts them out from the cause, or tryal of it. And ac∣cording to this very Author, this Canon of Toledo is to be taken as explanatory of Lanfranc's, which is much shorter, and less express; yet comes to the same, in the signification of the words, as well as in the intention of the Council, which re∣ceived the above-cited Canon of To∣ledo.

Lanfranc's we have in these words,

Iterum ut nullus Episcopus vel Abbas, seu quilibet ex Clero hominem occidendum, vel membris truncandis judicet, vel judicantibus suae autoritatis favorem accommodet.

This speaks of the man guilty of a crime worthy of death, or loss of mem∣ber, the other of the cause, or matter; which are tantamount: but by this they were not to judge themselves; nor sit by, while others judge, or any way contribute to the Judgement. But of this the great Council at Westminster in the year 1175. is the best Interpreter. And if the Clergy-men neither before the constitution of Cla∣rendon, nor by it, were excluded from med∣ling in these causes; they are by the last in full Parliament, the testimony of which is transmitted by us by no less an Au∣thor than Gervase of Dover, who liv'd in the very time, and whose credit this

learned Person supports by following him rather than Matthew Paris.

In hoc concilio, he tells us, ad emendatio∣nem Anglicanae Ecclesiae assensu Domini Re∣gis & primorum omnium Regni haec sub∣scripta promulgata sunt Capitula: amongst which the third is this,

Hiis qui in sacris ordinibus constituti sunt, Judicium Sanguinis agitare non licet, unde prohibemus ne aut per se membrorum truncati∣ones faciant aut inferendas judicent, &c. this is almost the same in words with that of Tole∣do, and by the concession of the Learned Au∣thor of the Gr. Question that of Toledo was then produced by Richard Arch-bishop of Can∣terbury: the same we find in Hoveden, said in the Margent to be ex concilio Toletano. Judicium sanguinis agitare non licet, surely comes up to the preliminaries, and I can∣not understand the coherence of saying to this effect.

It is a received Maxime that Clergy-men ought not so much as to vote in preli∣minarys, relating to capital cases; and therefore to give the final Judgement is on∣ly unlawful by the Canon, which declares that to vote, even in preliminarys, is un∣lawful.

In Richard the second's time, the Bi∣shops understood not this nice reasoning, and therefore they enter their formal Pro∣testation on Record.

Agitur de nonnullis Materiis, that is Capi∣tal causes, in quibus non licet nobis aut alicui eorum juxta Sacrorum canonum Instituta quo∣modolibet personaliter interesse.

'Twas not so much because 'twas in Parliament, as because matter of Blood was in question. And indeed the Canons mentioning Judicia Sanguinis, that is Ordi∣nary Judgements, such as were agitated in the Kings Ordinary Court of Justice, and the constitution of Clarendon referring on∣ly to that Court, it appears that these Con∣stitutions were received in Parliament in the Reign of Edw. the first.

When the King ty'd up his hands from giving Clergy-men Power, even so much as by his special Commissions, to sit upon the tryals of such causes. We for the Uti∣lity of our Realm and for the more assured conservation of our peace have provided and ordained that Justices assigned to take Assizes in every County, where they do take as they be appointed Assizes, inconti∣nent after the Assizes taken in the Shires, shall remain both together if they be Lay. And if one of them be a Clerk, then one of the most discreet Knights of the Shire being Asso∣ciate to him that is a Lay-man, by our Writ shall deliver the Gaoles of the Shires.

Hereby it appears that if one of the Judges were a Clergy-man, he was not so

much as to sit with the other upon the de∣livery of the Gaol; that is the tryal of ca∣pital Causes; but another Lay-man should be commission'd for that purpose. And agreeable to this we find in the Re∣cords of the Tower, that when two have been Commissioned as Judges for the same Circuit, whereof one has been a Clergy-man the other Lay, the Clergy-man has had only Common-Pleas in his Commission, the other both Common-Pleas and Pleas of the Crown: nor is it material that some Rolls may be found out purport∣ing as if Pleas had been held before two whereof one hapned to be a Clerk; for it is to be taken reddendo singula singulis.

(2.) This were enough to settle the 2^d point, viz. of what force such prohibi∣tion, as I have shewn, is at this day; but I take leave to offer farther, what as I conceive may give yet clearer satisfaction; which is, that the difference of an Eccle∣siastical Synod from a Temporal Great Council, was not taken from the persons present in either, but the matters of which they treated, and the parties which ma∣naged there according to the different mat∣ters; if Ecclesiastical Affairs, 'twas a Sy∣nod, if temporal, it had some other name, as Commune Concilium Regni Angliae, or the like to distinguish it by.

The great Jewel hath long since given Authority to this Assertion about Ecclesi∣astical Synods, which he calls concilia Epi∣scopalia: Ab Episcopis nomen concilia invenisse fateor, eoque dicta fuisse Episcopalia: quod Episcoporum judicio & prudentiâ omnia constituerentur. Sed tune idcirco concilia haec nihil ad principem attinuisse colliges.

As the Ecclesiastical Laws were suppo∣sed to lay a more immediate Obligation upon the conscience, and were for the most part enforc't by Ecclesiastical cen∣sures, they were call'd Canons or Rules, not having that outward coertion and pe∣nalties annext which others had, but yet they were no less Laws.

The Statute of Henry the 8th. which provides That no Canons, Constitutions or Ordinance shall be made or put in Execution within this Realme, by Authority of the Con∣vocation of the Clergy, does not in the least Abrogate, or Condemn those which were made by the Authority of the King, the Clergy, and the Laity: As I will not say all Ecclesiastical constitutions were, from the time of William 1. to the above∣mentioned Synod at Westminster, it is enough if that alone were so.

And then if that be not repugnant to some Law since made, I conceive it is still in force, having had full Legal sanction.

For the clearing this 'twill be necessary to shew something of the nature of the Ec∣clesiastical Councils according to the Mo∣dus establisht anciently in Engl. I must con∣fess that several Historians, when they mention concilium totius Angliae, speaking of an Ecclesiastical Council, add frequent∣ly, Episcoporum, viz. & Abbatum, nec non & multarum religiosi ordinis personarum, or to that effect. But Bishop Jewel has well In∣terpreted such Expressions, and therefore we need not wonder, when we find ano∣ther say, Lanfrancus Cant. Arch. & totius Angliae Primas diversa in diversis locis Angliae celebravit concilia.

Though to be sure the King were some∣times jubens & praesens, as at the Council at Winchester. But it appears even by their own modus tenendi synodos in Angliâ primaevis temporibus, which I take it was the same that was agreed on in Lanfranc's time, of whom Malmsbury sayes, quaesivit à senio∣ribus Episcopis qui esset ordo sedendi in con∣cilio Antiquo more statutus, &c.

By their antient Modus, I say, it appears that the Laity were to be present in their Ecclesiastical Councils; for when it men∣tions the Clergy in order it adds,

Exinde introducantur Laici bonae conver∣sationis, that is probi homines, vel qui electi∣one conjugali interesse meruerint, every Lay∣man

of good conversation, probus ho∣mo, or free-holder in his own Person, or ex electione conjugali by Joint-Election of the Clergy and Laity.

It would be superfluous to produce the many Authorities, which shew that the Laity used to be of Council in Ecclesiasti∣cal affairs, as well as the Clergy in Tem∣poral, and to give their Assent in making Canons or Laws.

I will instance in some very remarkable ones out of many;

One Eadmerus recommends with a so∣lemn protestation, En ordinem gestae rei te∣ste conscientiae meae veritate, sicut eam praesens audivi & vidi, in nullam partem declinando descripsi.

Matilda Daughter of Malcolm King of Scots marryed to Henry the first, being re∣puted a Nun, offers her self to be tryed by the Ecclesiastical Law, Offert se Judicio to∣tius Anglorum ecclesiae probaturam.

In another place,

Obtulit se vel sacramento vel alia quam magis eligerint ecclesiasticâ Lege probatu∣ram, &c. At the day appointed there As∣sembled Episcopi, Abbates, Nobiles qui{que} ac Religiosi ordinis viri: the case appeared to be that she had taken upon her a Nuns ha∣bit, but had never been profest; whereup∣on Anselm having stated her case to the

tota Regni nobilitas populus{que} minor, the Nobility and Commonalty, and in the name of God required them, Quatenus siquis aliter de negotio illo sentiret ac sententia tulerat (unde scilicet ipsam copulam secundum Legem Christianam fieri non debere posset ostendi) nihil haesitans salvâ pace omnium coram pro∣ferret.

Here any man there had free leave to offer wherein he thought that marriage void by the Christian Law, or Law of Holy Church: but cunctis unà clamantibus rem justè definitam, legitimè conjuncti sunt. Had not this been to vindicate Anselme, who it seems lay under the imputation of marrying the King contrary to the Laws of Holy Church, possibly Eadmerus had never given us so full an account; but he shews very particularly how those great Councils Acted, that 'twas in an intire Bo∣dy; the Assent was, cunctis unà clamanti∣bus. If any thing was offered, or pro∣nounced in a Definitive Way, which was generally dislik't, fremitu aspernabatur, as we are elsewhere told of such Assemblies. If the Council was divided, diversis diversae parti acclamantibus, they were forc't to Ad∣journ or break up. Thus, as 'twas amongst the Lacedemonians, what was propounded was determined, clamore non calculis. We have the like Account of an Eccle∣siastical

Synod in the 28th of the same King.

Gulielmus Dorobernensis congregavit ge∣nerale Concilium omnium Ep. & Abb. & quarumcun{que} religiosarum personarum, cui praesedit ipse. This we see was an Episco∣pal Council, and the Bishop was Presi∣dent, but then Confluxerant quoque illuc magnae multitudines Clericorum laicorum tam divitum quam mediocrium, & factus est conventus grandis & inaestimabilis, here was a confluence of the inferiour Clergy, and the Lay-Lords and Commons, and the number was beyond Account.

Acta sunt ibi de Negotiis Saecularibus nonnulla; being all met together, though upon Ecclesiastical affairs chiefly, yet they had colloquium about Secular too; and coming all in their own persons, (not by way of representation, when they that were chose to come instead of the rest, might receive certain Instructions accord∣ing to the matter propounded for treaty, beyond which they had no power,) it was not needful that they should know before-hand what they were to treat of, but might fall upon any thing pro re natâ.

Quaedam quidem determinata, quaedam di∣lata, quaedam verò propter nimium aestuantis turbae tumultum ab audientiâ judicantium, profligata.

It seems they had appointed some Judges of the Pole, or rather of the noise, and the Crowd was so Vast, the noise so Confused, that of many things they could not make any certain Judgement; some things were determined by a General Ac∣clamation, and others were Prorogued to a further day.

Quae autem communi Episcoporum consen∣su in ipso concilio decreta sunt & Statuta, si∣cut illic publicè recitata sunt & suscepta, in hoc opere placuit annotare, &c.

Here Ecclesiastical Matters were first debated, and settled amongst the Bishops, then they were publickly rehearsed, and either rejected, or suscepta receiv'd by the whole Assembly of Clergy and laity; but this was not enough to give them the force of a Law, they must have the stamp of Royal Authority to be Currant.

Rex igitur cum inter haec Londoniae mora∣retur, auditis concilii gestis consensum praebuit & confirmavit statuta Concilii à Guilielm. Cant. Arch. & Rom. Eccles. Legati apud Westm. Celebrati. At this time it seems the King was not in the Council, but the Canons, though drawn up by the Bishops, promul∣gated before and assented to by the Body of the Realm, yet had no force till Authen∣ticated by the head of the Church and State.

Gervase of Dover is little less particular in the Account of the Ecclesiastical Synod in his time, wherein the Canons or Con∣stitution declaring it unlawful for Clergy-Men, Agitare Judicia Sanguinis, was em∣bodyed into the Laws of the Land.

Ricardus vero Cant. Arch. totius Angliae Primas & Apostolicae Sedis Legatus convocato clero Angliae celebravit concilium in ecclesiâ Beati Petri ad Westm. 15. Kal. Junii Dominicâ ante Ascensionem Dom. afficerunt in hoc conci∣lio omnes suffraganei Cantuar. Eccles. praeter Vigorniens. qui diem clauserat extremum.

In hoc concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis & primorum omnium Regni haec subscripta promulgata sunt Capitula. Ad Dextram Primatis sedit Episcopus Londinensis quia inter Episcopos Cantuar. Ecclesiae Sussraganeos decanatus prae∣minet dignitate; ad Sinistram sedit Episcopus Winton. quia Cantoris officio praecellit: caeteri tam Episcopi quam Abbates secundum primo∣genit. consecrationis suae consederunt.

Ipse vero Archiepiscop. Primas, & Legatus residens in sublimi post sermonem quem tam facundè quam disertè fecit in communi de Scripto legi fecit Statuta concilii sui sub hac forma, &c.

Here it appears that their Councils were held by the Arch-Bishops of Cant. that the Statutes or Canons were drawn up in some private Consults of Bishops, but they took their force from the Assents of the King and all the Primores Regni, the Clergy and Laity of the Land; and that the third Ca∣non by me cited, was a Statute. This to be sure and the other Ecclesiastical Coun∣cils abovementioned, were more than the Curia de more.

I cannot, as the Author of the Grand Question does, summ up the Arguments on both sides; for I know not one that hath yet been offered, against what I have gone up∣on, which may be thus represented in short,

1. That the Canons prohibit the judg∣ing in Capital Causes, and all Preliminary Votes too.

2. That these Canons were received by the great Council of the Nation, and so be∣came 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 re∣ferring to the Ordinary Court of Ju∣stice, except it can be shewn that Cler∣gy-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 Vo∣ted in Bills of Attainders which in ef∣fect are Judicia Sanguinis: Still these are not within the ordinary Justice; how∣ever if they are Judicia Sanguinis, in a strict sense, let them who are concern∣ed, 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 us{que} Northampton & magnum ibi cele∣bravit 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 Ba∣rones 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 An∣tiquary Sir Henry Spelman, who if he had li∣ved to finish the second part would certain∣ly have given a compleat Body of Antiqui∣ty. We find in him the form of a fine

levy'd in the Ordinary Curia.

Haec est finalis conventio facta in curia Do∣mini 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 Jerusa∣lem, and therefore we must not expect ma∣ny 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 Te∣nants in chief, many holding in purâ & perpetuâ eleemosynâ, and others of tem∣poral Lords, as appears by the Statute of Carlisle, 34 Ed. 1. and therefore this was not a Court of the Kings Tenants and Offi∣cers only.

But then in November following he as∣sembled 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 Bu∣rium cum primatibus terrae illius celebravit. It seems he had held another Court in En∣gland, for this was the second Court, but the great Council at London was not of ei∣ther of the Feast days. But let us see whe∣ther 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 con∣sensu & favore.

Congregatis Arch. Ep. Comitibus & Baro∣nibus atque aliis omnibus.

This explains who are meant by the Magnates Regni, which assembled at London in the second of his reign, which, the Hi∣storian 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 En∣gland's marrying a foreigner without the consent of the people, and therefore Ha∣rold pleaded against William the First, when he urg'd his oath for placing the Crown upon William's head, and marry∣ing William's daughter, that he could not do either Inconsultis Principibus, or absque generali Senatus & populi conventu & edi∣cto: as another Author explains the Coun∣cil, the consent of which Harold pleaded to be necessary.

From London King John issues out his summons to William King of Scots to at∣tend him at Lincoln, which summons he was obliged to obey as one of his Tenants in Chief, but thither came more than Te∣nants 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 up∣on the Curia, Convenerunt interea ad collo∣quium apud Lincolniam, Rex Anglorum Jo∣hannes & Rex Scotorum Willielmus cum uni∣versà nobilitate tam Cleri quam populi utrius{que} regni Ʋndecimo Kalendas Decembris. As under the Nobility, the Senators of Scot∣land, were comprehended all the Free-holders

at that time beyond dispute, 'tis 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, 'tis 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 moun∣tain 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 Coun∣cil. 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 evi∣dent in that the Arch-bishop of Canterbury to shew himself a Prince in the Ecclesiasti∣cal Empire set up the like Court of his Te∣nants 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 Portsmouth, Generale proposuit edictum ut Comites & Barones & omnes qui militare servitium ei debebant, parati essent ad Portes∣mue cum equis & armis ad transfretandum cum eo ad partes transmarinas in die Pente∣costes 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 mar∣cas Argenti.

The next year he held his Curia on Christ∣mass 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 Te∣nants, but that is no argument that there∣fore no more were there, because the Council advis'd him to charge his Te∣nants; nay, 'tis very observable that the Historian does not say that they which were there assembled gave, but ubi conces∣sa sunt Regi auxilia militaria de quolibet scu∣to

scilicet duae marcae, that is, there Escu∣age 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 suc∣ceeding 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 defen∣sionem 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 a∣bate 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 as∣sensu Arch. Ep. Com. Baronum & omnium fi∣delium 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 Cu∣ria de more was confin'd to certain days, yet the King made the Court where-ever he pleas'd to appoint it, and the obligati∣on to attendance at the Court was inde∣finite; 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 coast∣ed about a little, he exacted a great summ of money from those whose tenure could furnish him with a pretence for it, be∣cause 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 ordina∣ry Curia, but the Records do.

There was a grant of subsidy upon eve∣ry mans personal estate per Commune Con∣cilium & assensum Concilii nostri apud Oxo∣niam.

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 exerci∣tum grand. apud Portesmouth congregavit.

But then the Christmass following at Winchester he held a General Council, and that was on the Court day. Celebravit na∣tale 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 contra∣dicere non audentibus.

Here was a grant of what no way be∣long'd to tenure, and therefore all the Magnates regni were privy to it, though 'twas 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. 'Twas 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 extraordina∣ry nature.

Misit literas ad omnes Vicecomites regni sui sub hâc formâ: Rex Johannes &c. Sum∣mone per bonos summonitores Comites, Baro∣nes, Milites & omnes liberos homines & ser∣vientes vel quicun{que} sint & de quocun{que} tene∣ant, 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 & ar∣mis & cum toto posse suo ad defendendum ca∣put nostrum & capita sua & terram Angl. Et quod nullus remaneat qui Arma portare possit sub nomine Culvertagii & perpetuae servitutis. Et unusquis{que} sequatur Domi∣num suum. Et qui terram non habent & ar∣ma 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 where∣withal to maintain themselves should have the Kings pay: this was upon expectati∣on of an invasion, and therefore the as∣sembly seems to have been as general as the summons; but there is a shrewd cir∣cumstance to induce the belief that many considerable men not holding in Chief, thought themselves not oblig'd to atten∣dance

till necessity press'd them, for other∣wise 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 Magna∣tum de fidelitate & subjectione.

But that this was not a general Coun∣cil 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 un∣lawful act, which it would not have been, if the Comites, Barones, and turba multa ni∣mis that unanimously agreed to those shameful terms which King John yielded, had been enough to constitute a full repre∣sentative 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, 'tis 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 fol∣low 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 no∣thing 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 with∣out 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 'tis observable, that there had been a general notice or Procla∣mation 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 ascertain∣ing the place of Meeting to Consult of Aids and Escuage; but besides these Te∣nants, there were others, Corpora vero Ba∣ronum sine Armis singulariter & quatuor di∣scretos Milites de comitatu tuo venire facias ad nos ad eundem terminum ad loquendum nobiscum de Negotiis regni Nostri. Teste me∣ipso 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 Mili∣tary 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, 'tis 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 ta∣ken 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 sum∣moned 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 qua∣libet villâ quatuor legales homines & praepo∣situm, & de quolibet Burgo Duodecim Lega∣les 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 eve∣ry 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 representa∣tives 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 Coun∣cil

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 Ar∣my Comitum, Baronum, Militum & Servien∣tium, 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 ho∣minibus nostris Regni Angliae pro nobis & haeredibus nostris in perpetuum, omnes liberta∣tes subscriptas habendas & tenendas eis & hae∣redibus suis de nobis & haeredibus nostris.

Even this was a Curia Regis in a large sense, but not the ordinary Curia; and though 'twere the Common Council of the Kingdom, as 'twas the Assembly of the whole Community, yet not the or∣dinary 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 Com∣mune 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 legisla∣tion.

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 legisla∣tive power, and there would be a little Par∣liament in every Village.

Without re-examining particular in∣stances I conceive 'tis obvious, that admit the ordinary Curia Regis at any time exer∣cised 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 ordina∣ry Curia, without a more solemn conven∣tion, or Summons; yet in irregular times many of them would not make one legal President, especially against so many de∣clarations 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 col∣loquium, and in that sense might be styl'd

Parliamentum, though not Generale Parli∣amentum, 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 assem∣bling about the matters relating ad servi∣tia 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 proper∣ties, by such as should appear, by design and contrivance, which was a great mis∣chief.

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 Histo∣ries both before and since the Charter till the 49 of Hen. 3. when 'tis supposed that more than Tenants in Chief, which compos'd the Common Council here menti∣oned, 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 declara∣tive of the law as 'twas before, or intro∣ductive 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, be∣cause then we should think, especially up∣on 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 to∣wards the practice.

I have at large shewn the evident proofs, that to the Great Council of the Na∣tion there us'd to come more than the King's Tenants in Chief, and conse∣quently 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 Com∣mon Council or Parliament of the King∣dom 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 obtain∣ed the addition of Great, so that the Mag∣na 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 Baro∣nagium or omnes fere Angliae Magnates refu∣sed to give a Royal Aid, demanded of them, the ground of their refusal is very re∣markable.

Quod omnes tunc temporis non fuerunt jux∣ta 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 Sum∣mons according to the tenour of that Char∣ter. Were it so, 'twould prove nothing for them that urge it; because it does not ap∣pear, 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: 'tis the then King Henry the third's Char∣ter, no man will say that 'twas the Barons Charter, and besides it was the Great Char∣ter, 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 anci∣ent 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 Cha∣pter 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 unius∣cujusque Villae.

Here are the Sheriff, the Great Barons, and Clergy-men and Headboroughs with∣in every Hundred, and six Inhabitants of every Villa, Parish or Township, then fol∣lows 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 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 Te∣nants 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 Char∣ter, 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 eo∣rundem 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, Tallagi∣is seu contributionibus Regi seu Progenitoribus suis concessis non consueverunt talliari, sed tan∣tum cum Communitate Com. Warwic. &c.

No man will imagine surely the mean∣ing 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 petitio∣ned, 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 Ba∣rony 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 in∣deed it clearly appears they did the contra∣ry) 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 Eng∣land 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 de∣monstrative if any will read over and con∣sider 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 sum∣mon'd by the great Lord pro omni servitio; but to charge them without their assent fur∣ther, 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 Ec∣clesiasticis personis quam secularibus omnes li∣bertates & consuetudines quas prius habuerunt.

If King John's Charter, in the particu∣lar 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 Concili∣um 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 te∣nent de nobis, as in K. Johns Charter, and two more to be chosen by every County respe∣ctively, the precepts recite (though 'twere falsum & deceptorium, as the Historian tells us) that the Earls, Barons, & caeteri Magna∣tes 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 om∣nes illos de Ballivâ tuâ, qui tenent viginti libratas terrae de nobis in Capite, vel de aliis, qui sunt infra aetatem & in custodiâ no∣strâ ad idem distringas, which was to perform their personal services, which not requiring their crossing the Seas, here is a suggestion that 'twas 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 mo∣neys to maintain them beyond that time, and therefore for this he directs a represen∣tative of the several Counties.

Tibi districtè praecipimus quod praeter om∣nes praedictos venire faciatis coram concilio nostro apud West. in Quind. Paschae prox. fut. quatuor legales & discretos milites de Comita∣tibus praedictis quos iidem Com. ad hoc elege∣rint 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 volue∣rint.

These were to come vice omnium & sin∣gulorum, 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. ne∣cessitatem nostram & tam urgens negotiam no∣strum diligenter exponas & ad competens auxi∣lium nobis ad praesens impendend. efficaciter in∣ducas, Ita quod praefati quatuor milites praefato concilio nostro ad praed. term. Pashae respondere possint super praed. auxil. pro singulis Comitat.

These were properly to come in the stead of all, for they were only Deputies to carry the sense of their Principals, the matter was to be propounded in the Coun∣ty Courts before the Knights there chose, & aliis, and the rest of the Free-holders; this whole assembly was to be moved to grant a large contribution, and the Knights were to make the tender of their present, before the King and his Council; if the County had wholly refused, the Knights had no power then to grant for them, so says the Record, for it was to be propounded to all, Ita quod, the Knights might answer for an aid from the County.

And it seems whether the Counties chose Deputies or not, or gave them not full instructions, the King was not able to work upon them that met at the place and time then appointed, but they broke up in great discontent.

Et sic cum summa indignatione tristes ad∣modum Proceres recesserunt.

But if the Tenants in Chief made the Common Council of the Kingdom till

49 H. 3. and had a power to tax the rest of the Nation de Alto & Basso ad meram vo∣luntatem suam: why this summons for a representative of the Counties?

The very next year, being the 39th above-mention'd, the King sollicites them for Aid.

They tell the King he undertook that War against France, for which he de∣manded aid, sine consilio suo & Baronagii sui. And when some were for complying with the Kings Demands: they Answer,

That all were not call'd according to the Tenour Magnae Cartae suae, that is, of this Kings Great Charter. Now whe∣ther this were because many who were exempted from Common Summons (for ma∣ny such there were by particular Char∣ters) had not Special summons, Singula∣tim from the King himself, or that he put a representative upon them, whereas they might plead that 'twas their free Cu∣stome to come themselves in person, or send as many as they pleased in their names, I need not determine; it being enough that here were more than Tenants in Ca∣pite. But a mighty Argument has been raised against Inferiour Proprietors or the Barones, Milites & liberè tenentes, which held not of the King, being part of the great or Common Council of the Nati∣on, upon such records as mention their

being summon'd coram Concilio. And in effect the force resolves into this, they are no part of the Kings standing Coun∣cil, the Assistants to him and his Lords, or of his Common Council of Tenants and Officers in the Curia, therefore no part of the great or Common Council of the Kingdome.

To clear this, I need offer but one In∣stance of many.

At Christmass in the 6th of Hen. the 3. he held his Curia at Oxford, but 'twas more than a Curia de More.

Tenuit curiam suam praesentibus Comitibus & Baronibus Regni, words of an extensive sense, or Ad natale Dom. fuit apud Oxoniam ubi festa Natalitia solemniter cum suis Mag∣natibus celebravit.

We have a Record of a subsidy granted that year, probably in that very Curia, Coram Nobis & concilio nostro praesentibus Arch. Cant. Ep. Com. & Magnatibus nostris de Communi Omnium Voluntate.

Now many of these were members both of the standing Council and Curia too, and yet were Coram Nobis & Concilio nostro: but the meaning of it is, that this was grant∣ed either before the King and his standing Council, or the King in his Curia by all these, That is, here was a conjunction of all Councils in one, adunatis Conciliis.

But because here are only Com. Bar. &

Magnates mentioned as if here were not any but great Lords: 'tis to be observed, and cannot be denied by any Antiquary, that free-holders, and they that came from the Counties as the representatives of such, had the appellation of Magnates, even a long while after: and therefore much ra∣ther before, when Lands had fewer Own∣ers, the Owners, especially such as came in their own persons, were Magnates.

In the 37 of this King in Parliamento London. so Mat. Westm. p. 352. Rex Angliae R. Comes Norfolc. &c. caeteri{que} Magnates Angliae, consented to the Excommunicati∣on of all the Violators of the great Char∣ter. Rex & Praedicti Magnates, that is, as is explain'd by Fleta who was Judge in the 16th of Edward the First, Archiepiscopi, Episcopi, Abbates Regni Angliae, Priores, Co∣mites, Barones, Milites, & alii Magnates: the Record goes on, & Communitas populi pro∣testantur publicè in praesentiâ Arch. Cant. nec non & Episcoporum omnium in eodem col∣loquio existentium.

In cujus rei test. & in posterum Veritatis testimonium tam Dominus Rex quam praed. Comites ad Instantiam Magnatum & populi praesentium Scripto Sigilla sua apposuerunt. Here the Communitas populi were the Com∣munitas Civitatum & Burgorum; for the rest were Magnates, the King and some Earls subscribed at the desire of the rest.

Perhaps by this time they that suppose the Commune Consilium regni within King John's Charter to have been a Full Par∣liament, or Great Council, till the 49th of Henry the Third, will compound for their Notion, and will yield, That more than such often came to Council, but that 'twas of courtesie, and that the King's immediate Tenants alone could charge the rest, and often did.

For which they have two false grounds; though perhaps but one within the time we are now upon, yet both are worth notice.

1. They take it for granted, that the Lords us'd to answer for their Tenants in Benevolences out of Parliament; and up∣on this weak, and at least uncertain foun∣dation, they build the Supposition, That they at other times represented them in all Great and Publick Councils.

2. (Which falls within the time) That it should seem by Record, that the im∣mediate Tenants have charg'd others without their Consent.

1. To prove that the Lords answered for their Tenants, they run back as far as William the Second's Reign; when his Brother Robert sent to him to borrow Ten thousand Marks of Silver, proffering Normandy for Security for Repayment.

The Bishops, Abbots, and Abbesses, brake in pieces the Silver and Gold Or∣naments of their Churches, the Earls, Barons, and Sheriffs, suos Milites spoliave∣runt, that is, robbed those which were under them; and 'tis a fine President for the Right of the thing, which car∣ries Sacrilege and Robbery in the face of it.

Here the Sheriffs robb'd or took away from the Freeholders that were within their Ball'ia or Balliva, and the Lords took from the Tenants within theirs; where∣fore if the Lords could charge their Te∣nants, the Sheriffs could the Freeholders: but I would fain see one President, that the Kings Tenants ever answer'd for them that were within their Ball'ia, further than the Sheriffs did for those within theirs, which at the most was as Col∣lectors under the King, of what was duly charg'd upon their Tenants; but gene∣rally I take it, they did no more than certifie how many held of the King with∣in their Precinct, as the Jurisdiction of great Men extended its self within such a compass, they were best able to give the King an account of those that were liable to any payment within that Ball'ia.

And thus in Henry the Second's time, the King issues out his Precept, That qui∣libet Praesul et Baro should certifie quot Milites tenerent de ipso Rege in Capite; this was for Escuage towards the Mar∣riage of the Kings Daughter, to which all that held in Capite were lyable; and here the great Lords were to certifie for the Resiants within the compass of their Leet or Ball'ia, though they held not of them, but of the King: upon such Certificate, according to the number they return'd, so many were enter'd in the Exchequer Rolls, under the name of such a Lord; and thus we find it expresly in the Case of the Prior of Coventry.

Compertum est in Rotulo 29 Regis H. ter∣tii sub titulo de auxilio ad primogenitam filiam Regis maritandam, viz. de quolibet Scuto 20 s. Contineri sic. Prior de Coven∣try reddit compotum de 10 l. de decem feodis de quibus quidem decem libr’ . Willi’ Tunstall Vic. dicti Comitatus in compoto suo de Anno 32 ipsius Regis H. oneratus fuit.

Here so many Knights Fees are enter'd under the Prior's name, but the Sheriff collected for them.

Upon this the Prior pleads,

Hoc ei non prejudicat in hac parte, dicit enim quod auxilia illa non fuerunt nec cen∣seri possunt esse servitia, imò quaedam subsi∣dia

per Magnates et communitatem régni spontaneâ et merâ voluntate Regi conces∣sa, et tam de tenentibus aliorum quam de tenentibus de Domino Rege levanda.

'Tis observable, the ground of de∣manding for so many Knights fees was the entry on the Roll in the 29th. of Hen∣ry the 3d. and he pleads, That at that time the Coumunitas Regni were Parties to the Grant; and that it was charg'd by, and lay upon more than Tenants of the King in Chief, but that he was chargeable upon the account of Aid or Service with but two Knights fees, which he says may appear by the Certificate of the then Prior, De feodis quae ipse tunc Prior tenu∣it de veteri feoffamento, that is, the num∣ber of Knights with which he was to serve, according to the first infeodation from the Crown, & de novo, which is the number of Knights fees rais'd under him by sub-infeodations, the first were all that he could be answerable for, but the second could not be charg'd without their own consent, the charges upon such were, Quaedam subsidia per magnates & communitatem Regni spontaneâ & merâ vo∣luntate Regi concessa. And thus we find the Records,

(1.) That the Kings Tenants were answerable no farther than according to the vetus feoffamentum.

So in the 26th. of Henry the 3d. The Sheriff is requir'd to shew cause why he distrain'd a man for two Knights fees, who pleads that he held but one, de ve∣teri feoffamento. Monstravit, &c. Quod cum non teneat de veteri feoffamento nisi feod. unius Militis in comitate tuo tu exig. &c. Quantum pertinet ad feod. duorum Militum & eâ occatione averia sua cepisti, &c.

(2.) That Lords of Mannors could not charge their Tenants without their consent.

Rex omnibus & liberè tenentibus de Episcopatu Lond. Reciting the great Debts which the Bishop had contracted in the Kings Service, the King earnestly entreats the Bishops Tenants to make a contribution towards the supply of his necessities, which surely need never have been, if the Bishop had by virtue of the Feudal Law, Power of charging his Te∣nants, or raising upon them what he had pleas'd.

Unde vos affectuosè rogamus quatenus a∣moris nostri intuitu efficax ei faciatis auxilium ad debita sua quibus pro favore nostro hono∣ratus est. Ita quod exaudita in hac parte prece nostrâ precibus vestris pro loco & tem∣pore nobis porrigendis aures benignas exhi∣bere debeamus.

(3.) When there was a Grant of more than from the Kings immediate Tenants, whose Grants were in the nature of Ser∣vices, if it reacht beyond the vetus feof∣famentum, 'twas Spontanea voluntate suâ & sine consuetudine.

(2.) But there is a knocking Record which I wonder I find no where insisted upon, to prove the Kings Tenants to charge others.

Sciatis quod Arch. Episc. Abbates, Priores, Comites, Barones & omnes alii de Regno no∣stro qui de nobis tenent in Capite spontaneâ voluntate suâ & sine consuetudine concess. nobis efficax auxilium, &c. Undeprovi∣sum est quod habeamus de singulis feodis mi∣litum & wardis quae de nobis tenent in Capite duas marcas ad praed. auxilium.

Here was a Grant only from Tenants in Capite, and yet it may be urged, that other Records explaining this, shew, That the Grant reacht to the novum feoffamen∣tum, as well as the vetus.

But it will be said, That I make an Ar∣gument for them, which they are wiser than to offer, since the Records of this very cleerly overthrow it; yet if there be no better, I may offer this, that they may cultivate and improve it.

The matter of Fact, I take it, was, That

the Tenants in Capite Granted by them∣selves a charge upon the vetus feoffamen∣tum, and the Record which mentions their Grant goes no farther, but another Record of a Grant from Ecclesiastick Te∣nants in Chief is more express, and ex∣plains the other.

Cum peteremus à Praelatis Angliae quod nobis auxilium facerent, pro magnâ necessi∣tate nostrâ de quâ eis constabat, viz. Epis. Abbatibus Abbissis, Prioribus & Priorissis qui de nobis tenent in Capite ipsi nobis libera∣liter concesserunt auxilium tale, viz. De singulis feodis Militum suorum 40 s. de tot feodis de quot ipsi tenentur, nobis respondere quando nobis faciunt servitium militare.

This is express, That the Tenants in Ca∣pite, Granted only for so many Knights fees as were of the vetus feoffamentum, that is, so many as they were to answer for, when they were to perform their Military Services to the Crown.

But whereas in the 19th. the Tenants in Capite were said to have made such a Grant, and at the same time there was a Grant which reacht to the Tenants de novo feoffamento, the Record mention∣ing that, shews us that more than Te∣nants were Parties to the Grant.

Rex Vic. Somer. Salutem sciatis quod Comites & Barones, & omnes alii, de to∣to

regno nostro Angliae spontaneâ volunta∣te suâ & sine consuetudine concess. nobis efficax auxilium ad magna negotia nostra ex∣pediend▪ unde provisum est, de consilio illo∣rum quod habeamus de singulis feodis quae de nobis tenent in Capite & de wardis tam de no∣vo feoffamento quam de veteri duas marcas.

Whether the Tenants in Capite Grant∣ed at this Council by themselves, or all agreed in one Body, is not material, but here is a grant from all, jointly or several∣ly; I will shew one Instance, which is bare∣ly of such a Commune concilium Regni, as King John's Charter exhibits.

Rex Bar. Quia per commune concilium Com. Baronum & aliorum Magnatum nobis∣cum in Walliâ nuper existentium provisum est quod nos & ipsi qui servitium nobis fe∣cerunt, ibidem habeamus scutagium nostrum, viz. De Sicuto 40 s. pro exercitu nostro Wall’ anno Regni nostri 41. vobis manda∣mus quod de omnibus feodis Militum quae te∣nentur de nobis in Capite vel de Wardis in manu nostra existentibus exceptis feod. illo∣rum qui brevia nostra habuerunt de scutag. suo habendo levari fac. scutag. nostrum▪

Here was a Common Council of Tenants, such is according to their obligation of their Tenure, had attended the King in his Wars, and they laid Escuage upon them which did not perform their Servi∣ces

due, which still were only Tenants in Chief, and the Tenants of the King's Wards which were liable to the same Service, and they which made default, were to pay Escuage to the King, which he says was to his Tenants too, in as much as he out of that satisfi'd their charges be∣yond the duty of their Tenure.

I think I have clear'd my way to the treasury of Records in this Kings Reign, which acquaints us with the Members of the Great Council of the Nation.

As before is observ'd, for the obtaining Magna Charta, and Charta de Forestâ, the Arch. Episc. Abbates, Priores, Comites, Ba∣rones, Milites & liberè tenentes & omnes de Regno Granted a Subsidie.

There is a Grant of Carvage, which Bracton says, us'd to be consensu Communi totius Regni, not being a Service, or such as Tenants only us'd to charge or pay the Reward, has it, Omnes Magnates & fideles totius Regni nostri, Granted de qualibet caru∣catâ duos solidos.

The King in his Letter to the Pope, says, That he had Summon'd to Nor∣thampton, Arch. Episc. Abb'es ac omnes Magnates totius Regni, to give him conci∣lium & auxilium.

The King undertook a Foreign Voiage, De communi concilio omnium Comitum & Baronum nostrorum Angliae.

A Fourth part of their Moveables is Granted by the Archiepiscopi, Episc. Abba∣tes, Priores & Clerici terras habentes quae ad Ecclesias suas non pertinent, Comites Barones, Milites, liberi homines, & vil∣lani de Regno nostro.

So that 'tis plain here, who made the Cōmune Conciliū Regni, and gave the Sub∣sidie, the Arch-Bishops, Bishops, Abbots, Priors, inferior Landed Clergy-men, the Counts, Barons, Knights, Free men, it being a Grant of Goods not lay'd upon Land; and that it may fully express the Parties to the Grant, the Record tells us there were the villani the Inhabitants of every Villa. A Provision about the She∣riffs Turns, Hundred-Courts, Wapen∣takes, and the Courts of Lords of Man∣nors was

De communi concilio domini Cant. & omnium Episc. Comitum, & Baronum & aliorum.

Comites & Barones & omnes alii de toto Regno nostro concess. nobis efficax auxilium, &c.

It is provided, coram venerab. Patre Cant. Arch. & coram Majori parte Episc. Comitum & Baronum totius Regni nostri Angliae, that no Assize of Darrein Pre∣sentment shall be taken of any Prebenda∣ry belonging to a Cathedral Church.

At a Parliament, Cum ad mandatum no∣strum convenirent, apud West. Archiepisc. Abbates, Priores Comites & Barones totius Regni nostri & tractatum haberent nobiscum de statu nostro & Regni nostri, They grant a Subsidy Archiepis. Abbates▪ Priores, & Cler’ terras habentes quae ad Ecclesias suas non pertinent. Comites, Barones, Mili∣tes, & liberi homines pro se & suis villa∣nis 30. m. partem omnium mobilium sua∣rum.

Nus volens & otroiens ke ce ke nostre—la greignure partie de eus ki est esluz paromis & par le Commune da nostre Roi∣aume a fet u fera al honir de dieu & nostre foi & pur le profit de nostre Roiame sicum il ordenera seit ferm & estable en tuites chesel a tuz jurz commandous a tuz noz faus & leaus en la fei kil mis devient kil fermement teignent & jurgent a tenir & meintenir les establissements que sunt fet u sunt a fere par lariont dit Conseil.

This agrees with what was done after∣wards, in the 42d. of this King, and it seems by this, that even in the 24th. par le Commune de nostre Roiaume, by the whole Realm or Great Council, the King had a special Council Assigned, which was to have an extraordinary Power.

Magnates nostri ad sedem Apostolicam appel∣larunt & quosdam pro universitate totius Baronagii Angliae ad concilium in brevi ce∣lebrand’ ad appellacionem pred’ prosequen∣dam duxerunt destinandos.

The Barnagium here according to Mat. Paris, were, Barones, Proceres & Magnates, ac Nobiles Portuum maris ha∣bitatores, nec non Clerus, & Populus uni∣versus.

The Pope had order'd, De Apostolicâ se••e, that a Years profit of the Churches which were of the gift of Lay∣men, should be settled by way of Subsidy upon the Church of Canterbury; but 'twas deny'd in full Parliament.

Magnates terrae nostrae noluerunt in ul∣timo Parliamento nostro quod fuit London ut de Ecclesiis ad donationem laicorum spectan∣tibus &c.

In Parliamento nostro Oxon. communiter fuit Ordinatum, that was about settling and new modelling some things relating to the Government, which the King pro∣miseth should be done, per concilium pro∣borum et fidelium hominum nostrorum regni Angliae unà cum consilio Legati Domini Pa∣pae.

Pur le profit de nostre reaum et a la re∣quest de mes hauz homes e prodes homes e du Comun de nostre Reaume.

The King and People having in the 42^d. agreed upon a standing Council, and that what they did in the way of Settle∣ment, should be effectual, and acquiesced in on all sides.

Cum &c. promiserimus praedictis proce∣ribus et Magnatibus nostris quod reforma∣c'onem et ordinac'onem per praedictos vigitni quatuor vel majorem partem eorum faciend’ ratam habebimus et firmam. &c.

Hereupon in the 45th they order a re∣presentation of 3. for every County, pro ea vice, but do not yet settle it for a stand∣ing Rule.

Cum ex parte Episcopi Wign’ Com. Leicest{er} & Gloucest{er} ac quorundam aliorum Procerum Regni nostri vocati sunt tres de singulis Comitatibus nostris quod sint coram ipsis ad Sanctum Albanum secum tractaturi super communibus negotiis regni nostri.

Here the Lords of the Council exceeded their Power, and, as if the King were a Cypher in the Government, would have the Knights from the several Shires come before them; the King, not without rea∣son, jealous of his Honour, commands, That they which had been summoned to St. Albans, should come to him at Wind∣sor.

Nobiscum super premissis colloquium ha∣bituros.

Venerab. Pater G. Eboracensis Arch. Angliae Primas et alii Praelati Magnates Milites liberè tenentes et omnes alii de regno nostro servitium fecerunt et auxilium ultra quā tēporibus retractis in aliis sūmonitioni∣bus exercitus nostri facere consueverunt.

This the King promises should not be drawn into consequence; upon an extra∣ordinary occasion they that were not ac∣customed to perform Military Service, did it then; and they that did owe Ser∣vices, did more than they were oblig'd to by their Tenure; all, as well those that held not of the King in Chief, as those which did, joyn'd together and made a general charge upon the Kingdom of Subsidium et auxilium.

In the 48th of this King, there was a right Understanding between him and his People, the Record sayes, Haec est forma pacis a Domino Rege et Domino Edwardo filio suo Praelatis et Proceribus omnibus et Communitate regni Angliae communiter et concorditer approbata, &c.

Amongst other things, 'twas agreed, Ad reformac'onem status regni Angliae, That they should chuse 3 men who should have power from the King to name Nine that should be the Kings standing Coun∣cil; and if any of the three displeas'd the Community, si videatur Communitati Pre∣latorum

et Baronum, one or more was to be plac'd in their room, per consilium Com∣munitatis Praelatorumet Baronum.

And the Record concludes, Haec autem Ordinatio facta fuit apud London de con∣sensu voluntate et praecepto Domini Regis necnon Praelatorum, Baronum ac etiam Com∣munitatis tunc ibi praesentium.

The Council so chose as aforesaid, were to advise the King in hiis quae spectant ad Regimen Curiae, et regni.

And at that time, or immediately upon it, Rex Statuit et ordinavit, as Mr. Camden tells us, whose authority I shall enforce, That none of the multitude of Barons should come to Parliament, but they to whom the King vouchsaf'd to send his Special Summons, or were chose by the People, in pursuance of the alia illa Bre∣via.

What I have already drawn from the bowels of Antiquity, makes me think that Mr. Selden was arriv'd to this maturi∣ty of Judgment, when he put out the first Edition of his Titles of Honour; where∣in he received without doubting the Testimony of the learned Clarenceulx Mr. Camden, concerning the new modelling of the Great Council of England, which Mr. Camden tells us, he has out of an Au∣thor old enough to know the truth of his

Assertion; upon this authority, Mr. Sel∣den took it then pro concesso, that the al∣teration was as is there shewn, and began in the 48th of Hen. the Third, and that the first Summons accordingly was the 49th; which he illustrates by the like ma∣ny years after in Scotland.

Item, The King with the Consent of the hail Council generally, hes Sta∣tute and Ordained, That the small Ba∣ronnes, and free Tennentes, neid not to come to Parliaments nor General Coun∣cels, swa that of ilk Shirefdome their be send, chosen at the head Court of the Shirefdome, twa or maa wise men after the largeness of the Shirefdome. All Bishops, Abbots, Priors, Dukes, Earls, Lords of Parliament, and Banrets, the quhilks the King will be received and summon'd to Council and Parliament, be his Special Precept.

This I conceive is an illustration of Mr. Camden's Authority.

Ad summum honorem pertinet, speaking of the word Baro. Ex quo Rex Henricus ex tantâ multitudine quae seditiosa et tur∣bulenta fuit optimos quos{que} rescripto ad Comitia Parlamentaria evocaverit: ille enim, (ex satis antiquo authore loquor) post magnas perturbationes et enormes vexa∣tiones inter ipsum Regem, et Simonem de

Monte forti & alios Barones motas, & so∣pitas statuit & ordinavit quod omnes illi Comites & Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitio∣nis dirigere venirent ad Parlament’ suum, & non alii nisi forte Dominus Rex alia illa brevia dirigere voluisset, sed quod ille pau∣lo ante obitum incepit Ed. 1. ejus{que} Successo∣res constanter observarunt, unde illi soli Regni Barones censebantur qui ejusmodi summonitionum ut vocant rescriptis ad Comitia evocaverant, donec R. 2. Joan∣nem de Beauchamp de Holt Baronem de Kiderminster diplomate dato 10. Octob. anno nostri sui. 11. creaverit.

The substance of this is, that the word Baro, was applicable to the whole people, the Body of Free-holders, especially as assembled in Parliament, till the King confer'd particular Honour upon some by his especial Writs of Summons, and none other came, but in pursuance of the aliae illa brevia, that is, the Writs for Electi∣ons in Counties, Cities, and Boroughs: that this was begun to prevent those Tu∣mults, of which both the King, and the Barons, had Fatal experience.

That this was Enacted in due form of Law; though the Form is not express'd, yet 'tis imply'd under the Statuit & ordi∣navit, being words of Legislation, and

for confirmation, that it was so, it has been followed ever since: And that the Barons by Creation, who have ever since their Creation had Right to sit as of the higher Order previous to their sitting or express Summons, came not in till the 11th. of Richard the Second.

Against this Mr. Selden, whose insight into Records and MS's made him take it ill that any should escape his view, has rais'd these objections.

(1.) In all occurrences that I meet with▪ since the Grand Charter of King John, I find no mention of any interest that those other Tenants in Chief, eo nomine, had in Parlia∣ment, who doubtless were the Persons that were excluded from it, when soever such Law was made.

Tanti viri pace, This objection comes not nigh the point, it not being prov'd at least, that King John's Charter gives the Form of a Parliament or General Coun∣cil, or of any other than a Council of the Kings Tenants, for matters belonging to their Tenure: and this sense Mr. Selden himself confirms, when he says, that he finds not that the Minores Barones in Chief, or those other Tenants in Chief, eo nomine, had any interest in Parlia∣ment; now not having any peculiar in∣terest, what need of a particular exclusi∣on?

(2.) Besides, we have some good Testi∣many of Barons being distinguish'd by hold∣ing in Chief, from others that held not in Chief, long before the end of Henry the Third, or the time to which that ancient Au∣thor refers the Law of alteration, which seems to shew, that there were then Barons by Writ only; as well as ancient Barons by Tenure: That Testimony in Mat. Paris, Rex edicto publicè proposito (saith, he, speaking of the 29th. of Henry the Third, Et submonitione generaliter facto fecit notificari per totam Angliam ut quilibet Baro. tenens ex Rege in Capite haberet prompta & parata Regali praecepto omnia servitia militaria, quae ei debentur tam Episcopi & Abbates quam laici Barones. Barons holding in Capite are mention'd here as if some held not so, which must be such as were Barons by Writ only.

Thus much he yeilds here. If there were not Barons by Writ, there being in those times other Barons besides Barons by Tenure, Mr. Camden and his Author were in the right, and the word Baro, was of large extent, that is reacht to every Free-holder, who according to Sir Henry Spelman, had that appellation.

However it does not follow, because there were other Barons besides Barons by Tenure, that they must be by Writ;

for what hinders, but that they might have been by reason of their Possessions, and the freer from Feudall Tenure, so much the rather Barones, as Free-men.

The distinction of Barones Majores and Minores, I take it has been moveable, sometimes all the Tenants in Chief were Majores, as in Henry the Seconds time, where the Barones Secundae dignitatis, that is, Minores, are added to sit upon the Judgments with the Tenants in Chief: In King John's time we find Majores Ba∣rones holding in Chief, & alios, so that, the Estates of the Great Barons being parcel'd out, some that held immediately of the King, were Minores Barones, by reason of the smallness of their Estates.

But this is clear from Record, That Writs of special Summons made none Barons out of Parliament, whatever they did in Parliament, except where there was such an unusual Clause as we find in a Writ of Summons, 27 H. 6. Volumus enim vos & heredes vestros masculos de cor∣pore vestro legitimè exeuntes Barones de Vescey existere.

Here was a special Clause of Creation to a Barony; but if the usual Writs, Qua∣tenus, Writs of Summons, made none Barons out of Parliament, and there is not the least ground of conjecture, that

such Writs were devis'd in the time of Henry the Third, it follows, That when Henry the Third Summon'd only his own Tenants to perform their Military Services, not to Parliament, and these were Barones tenentes in Capite, but there were other Barons omitted, that these Barons must have been such, by reason of their Freehold.

That an usual Writ, or Writs of Sum∣mons, made none Barons out of Parlia∣ment, appears very fully in the Case of Thomas de Furnivall, in the Court of Exchequer.

Thomas de Furnivall had been amerced tanquam Baro. He pleads in discharge of his amercement, That he was no Ba∣ron, nor held by Barony, or part of a Barony, Licet ipse Baro non sit, nec ter∣ram suam per Baroniam vel partem Baroniae teneat, nihilominus idem Thomas pro qui∣busdam defaltis in quibusdam Curiis, &c. In eisdem Curiis tanquam Baro amerciatus fuit.

Now according to Mr. Selden's Notion, he ought to have pleaded that he was no Baron, in that he neither held by Barony, nor had receiv'd or us'd to re∣ceive special Writs of Summons to Par∣liament.

But 'tis observable, that the only mat∣ter put in issue by the direction of the Court, was, Whether he held by Baro∣ny, or no, Et quia Barones ante quam ul∣terius, &c. Volunt certiorari super supe∣rius suggestis. Concordatum est quod inqui∣ratur inde & quod Robertus de Notting∣ham Rememerator hujus Scaccarii assignetur ad capiend’ inde inquis, &c. Et datus & dies prefato Thom. per Attornatum suum pred hic à die Pasche in unum mensem ad au∣diend & reccipiend inde quod Cur. &c.

There was an Inquisition directed into the several Counties, where he had Lands to know how he held them, and accord∣ing as his Tenure appear'd to be, was he to receive Judgment upon his Plea; and 'tis certify'd, upon the Inquisitions taken, That he held not any Land per Baronium vel partem Baroniae, and therefore accord∣ing to the sense of the whole Court, though we find not the Judgment then given, non fuit Baro.

And yet this man had been call'd to Thirty Parliaments before the time of his Plea; and his Son, as I take it, was call'd to Seven in the life-time of his Fa∣ther, Thomas de Furnivall Sen. Summo∣nitus fuit per breve ad Parl’ Rot. Claus. 23 Ed. 1. m. 9. dorso. Rot. Claus. 23 Ed. 1. m. 3. d. 24. Ed. 1. m. 7. d 25. m. 25. d. 27.

m. 18. d. 28. m. 16, 17. d. 28. m. 2, 3. d. 30. m. 7. d. 32. m. 2. d. 33. m. 21. d. 34. m. 2. d. 35. m. 13. d. Rot. Claus. 1 Ed. 2. m. 19. d. 1. m. 11. d. 1. m. 8. d. 2. m. 11. d. 3. m. 17. d. 3. m. 16. d. 5. m. 17. d. 5. m. 3. d. 6. m. 31. d. 6. m. 17. d. 6. m. 2. d. 7. m. 15. d. 8. m. 25. d. 8. m. 29. d. 9. m. 22. d. 11. m. 14. d. 11. m. 12. d. 11. m. 8. d. Thomas de Furnival, Jun. Rot. Claus. 12. d. 2. m. 29. d. 12. m. 11. d. 13. m. 13. d. 14. m. 23. d. 15. m. d. 16. m. 26. d. 17. m. 27. d.

This Great man was no Baron in the sense of the word Baron then appropriated, the several Writs of Summons had made him no Baron, and yet he was a Lord of Parliament, and since the King dignatus est brevia Summonitionis ad eum dirigere, ac∣cording to Mr. Camden, he being before one of the multitude of Barons, the word Baro which was applicable to all the No∣bility, the Free-holders in him, pertinebat ad summum honorem. Mr. Selden's last ob∣jection is this,

(3.) That old Author also used by the Learned Camden, speaks of Earls no o∣therwise than of Barons, as if some like exclusion had been of any of them also; than which nothing can be more advers to the known truth both of that Age, and all times, and even in that we have some Character of the slightness of his Authority, whosoever he were.

This I conceive can be of no great weight, for he might as well have said that Barons were never excluded before, and by the same consequence not then; for I know not how any man can prove, that Earls had more Right than Barons, in the most Honourable acceptation espe∣cially.

But this being then made a Law, 'tis 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 de∣prived of no natural Right. Since the 11th. of Richard the Second, indeed, the Nobility have had settled Rights by Pa∣tents, which are as so many constant Warrants for the Chancellor to issue out the Writs of Summons, Ex debito justi∣tiae; with this agrees the great Antiqua∣ry, Sir Henry Spelman.

Sic antiquae illa Baronum dignitas secessit in titularem & arbitrariam regio{que} tandem diplomate id circo dispensata est.

Upon the dissolution of the separate Court of Tenants, the Tenants still suc∣ceeding to that jurisdiction and prefe∣rence

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 Sum∣mons; and the Right of being repre∣sented, as properly concluded, the one as the other, unless where the King had exerted his Prerogative. But where the King ex tantâ multitudine Baronum, dif∣fering 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 Parlia∣ment. This, with submission, I take it, made them not Judges in Parliament, eo¦nomine▪ 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 con∣sent 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 crea∣ting

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 o∣thers, 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 'twas for the good of the Commonwealth; yet he being look'd upon as one that ordinarily would be specially Summon'd, the King might su∣persede 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 anteces∣sorum suorum extiterint ad essendum. U∣num militum venientium ad proximum Par∣liamentū nostrū pro Coōmunitate Comitatus praedicti de assensu ejusdem Comitatus elegi∣sti, nos advertentes quod hujusmodi Banne∣retti,

ante haec tempora in Milites Comita∣tus ratione alicujus Parlamenti eligi minimè consueverunt, ipsum de officio Militis ad di∣ctum 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 sepa∣rate Court.

In the 5th. of Richard the Second, ma∣ny having refused attendance, and not owning themselves liable to amerce∣ments, 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 Sum∣mons of Parliament, shall come from hence∣forth to the Parliament, in the manner as they be bounden to do, and hath been accu∣stomed, 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, Bi∣shop, 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 ob∣ligation upon the King to give any spe∣cial 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 Sum∣mons, 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 exemp∣tion, 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 preg∣nant 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 par∣ticular Writs of Summon's eodem modo as to the Lords of Parliament.

This is further observable, that in the forecited Statute, and Records, Banne∣rets 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 Ba∣ronum, 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 accoun∣ted 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 particularly nam'd.

But for this a resolution by all the Jud∣ges of England in the Reign of Hen. the 8th. is a full Authority, where 'Tis ad∣judged, that the King may hold his Par∣liament without such Lords as come one∣ly upon the account of their Possessions. The same in effect Mr. Selden tells us, in in his Notes upon Eadmerus, Neque eos (speaking of Barones) duntaxat ut hodie significare, quibus peculiaris ordinum Co∣mitiis locus est, sed universos qui saltem beatiores regia munificentia &c. Lati∣fundia possidebant. So that he was of opinion here, that there were several who had great Estates of the immediate grant of the Crown, who yet had no Seat in the House of Lords.

I would not be thought to assert any thing dogmatically, I onely offer by way of learning, some thing which perhaps will be look'd on as Paradoxes at the least. I divide not my matter into Heads and Positions, because I run counter to the sense of many great names: and the di∣rect opposing such in Thesi would be in∣vidious, and gain a disadvantage to the authorities I produce.

If any body will take the pains to shew me, by authentick proofs and warrantable reasons, that all or most of the Records or Histories by me cited, or

others not occurring to me, ought to be taken in a sense contrary to what has ap∣peared to me, I shall thankfully receive and acknowledg his instructions; but till then I must crave pardon if I cannot swallow or digest any Learned Modern Antiquarie's bare ipse dixit, where I find the best of our Historians and a Series of Records in my Judgment diametrically opposing and contradicting their Positi∣ons and Assertions

I am aware, that besides the many slips of an hasty Pen, and the weakness perhaps of several of the inferences, which amongst some avocations may have pass'd neglected; There is a mate∣rial Objection against the foundation of the whole, which is the general agree∣ment of Records and Histories, that till the 48th or 49th of Henry the Third, all Proprietors of Land came to the Great Council without any settled exclusion▪ when yet we many times find that the Councils were held in Churches, or Halls, and yet at those times 'tis said that the Populus were there as if the Great Men were the standing Representative Body of the Nation, and answer'd for all the People, the Freeholders of the Nation.

To which I answer, (according to the modus tenendi Synodos, which I may apply

to the civil Councils) That the probi homines, or bonae conversationis came some∣times in their own Persons, and when they agreed to it, which was no abridg∣ment of their personal Right, they came by representation ex electione, and every one was there himself virtually by his Deputy, but they often met in vast Bo∣dies, and in capacious places, both in the Saxon times, and after William the First obtained the Imperial Crown.

The whole body of Proprietors were assembled at Runemed between Stanes and Windsor at the passing of King John's Charter; and if we believe Matth. West∣minster, it was not unusual for the Kings of England long before King John's time, at that very place to meet their People to treat of the Affairs of the Kingdom.

Maximus Tractatus habebatur inter Re∣gem et Barones de pace Regni inter Stanes & Windsoram in prato quod dicitur Rune∣med quod interpretatur pratum Concilii eö quod ab antiquis temporibus ibi de pace regni saepius consilia tractabantur.

This shews the usual places of Assem∣bling to have been large enough for all the people, which are in so many Re∣cords and Histories Printed and in Manu∣script, said to have been present at the Great or General Councils; I shall con∣clude

with one Instance of the Parties present at such a Council, which is deli∣ver'd with sufficient perspicuity.

Anselm in one of his disputes with Henry the First, desires the debate may be adjourn'd till the Easter following.

Differantur haec si placet usqu; in Pascha ut audito Episcoporum, regni{que} Primatum consilio, qui modò non assunt respondeam hinc.

Upon this Anselm comes to the Court at Easter, Igitur in Pascha Curiam venit regni ingenuitatem praesens consulit, Com∣muni consilii vocem accepit, &c.

Here the Council Episcoporum et Pri∣matum, to which he referr'd himself, was reciprocal with the ingenuitas regni, that is, as Sir Henry Spelman shews us, the liberi et legales homines, the good honest Freeholders, some of which were no bet∣ter than Plebeians.

And therefore this authority alone, especially as 'tis strengthned by those others to the same purpose, which I have cited abs{que} dolo et malo ingenio, evince to me, That he or they who put out the Second Part of Sir Henry Spelman's Glos∣sary, did not do right to his Memory, in representing him affirming, That the plebs, the ingenuitas, or liberi et legales homines, as he himself tells us the word

ingenuus, has anciently been us'd, are no where amongst the several Councils which he had read of, mention'd to have been there, from the entrance of William the First, to the end of Henry the Third. The words to this purpose which I con∣ceive are put upon him, are these,

Sine ut sodes dicam collegisse me centenas reor comitiorum edictiones (tenores{que} pluri∣morum) ab ingressu Gulielmii ad excessum Henrici 3. existentium nec in tantâ multi∣tudine de plebe uspiam reperisse aliquid.

Indeed notice being taken of those Councils where were Optimates et Baro∣nes totius Angliae, and of that famous As∣sembly at Salisbury-Plain of the Barones et Vicecomites cum suis Militibus, in pur∣suance of the Summons of William the First, the positiveness of the assertion is restrain'd with a ni in his dilituerit. But what doubt can be made of those words, whereby they are expresly mention'd, and that according to the true Sir Henry Spelman, I am not yet aware of.

FINIS.

Notes

• Petyt's Ap∣pendix, p. 131.
• Bracton. lib. 2. cap. 16. p. 37.
• Charges upon the Land ac∣cording to the value or number of Acres.
• Charta Jo∣hannis 17. Regni, Anno 1215.
• Tiguri, fol. 247.
• Magna Car∣ta, cap. 9.
• 2 Iust. fol. 20.
• Titles of Honour, f. 586, & 587.
• Rot. Claus. 17 Johan∣nis Dorso m 21.
• Rot Pat. 17 Johannis pars unica m. 13. n. 3. Ib. m. ••3. dorso.
• Magna Charta cap. 38.
• Confirmatio magna Chartae fa∣cta 2. H 3. in consimili formâ cum magna Charta 9. Hen. 3. (te∣stibus & data exce∣ptis) exemplificata & confirmata 25. Edw. 1. prout Charta de Forestâ. Ex MS contemporaneâ statutor. penes Sam. Balduin Equitem auratum & servient. ad legèm.
• Et de Scu∣tagiis assi∣dendis fa∣ciemas sum∣moneri, &c.
• That is such of the Majo∣res as held intra 〈◊〉〈◊〉.
• Aid upon Tenants in Common Socage.
• Escuage upon Te∣nants by Knights Service.
• Chester.
• Tit. Honor. 1 Edit. p. 247.
• See Leice∣ster's Sur∣vey of Che∣shire.
• 20. H. 3. M. Paris fol. 563. Ed. Lond.
• Tit. Ho∣nour 1 Ed. p. 233.
• Selden, ib.
• Domesday in Cheshire saith, Co∣mes tenet Co∣mitatum de Rege. See Leicester's survey of Cheshire.
• Mat. P. fo. 497. Ed. Lond. Anno 1232. 17^o. H. 3. M. P.
• An. 1205. 7^o. Johan∣nis.
• Mat. Par∣ed. Tig. f. 359.
• Nequi mag∣nates viz. Comes, Baro, Miles seua∣liqua alia notabilis persona Rot. Claus. 3 E. 2. m. 16. dor.
• M. P. f. 359. An. 1232. 17^o. Rs. H. 3.
• Nota, This shews that the Te∣nants in Capite were not all the Council, because they in particular are taken notice of amongst them which came to that Coun∣cil.
• The Earl of Chester was not to attend the King in his Wars, nor to pay es∣cuage in lieu of mi∣litary ser∣vice, be∣cause all his Tenure was to keep to the de∣fence of the March∣es.
• Rot. Pat. 44 H. 3. M. 1. dor.
• 22^o. Ed. 1. n. 45. sub Custod. Ca∣merar in Scaccario.
• Rot. Pat. 2. Ed. 1. M. 6.
• Rot Pat 20. Ed. 1. M. 6.
• Bundella li∣terar. in Turre Lon∣don. An. 8. H 3.
• Ne qui Ma∣gnates viz. Comes, Ba∣ro, Miles seu aliqua alia nota∣bilis perso∣na, &c. Rot. Claus. 3 E. 2. m. 16. dor.
• Rot. Parl. 40 Ed. 3. n. 7, 8.
• Matt. Par. p. 236.
• Hooker Ec∣cles. lib. fol. 29.
• Matt. Paris Ann. 1212. 14 Johan∣nis.
• 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 judi∣cium rectum & sustiti∣am constan∣ter omnibus modis pro posse suo sine dolo & sine dilatione faciend. ib.
• Knyghton, fol. 2358.
• Leges Will. 1.
• Servitutes rusticorum praediorum sunt haec, i∣ter, actus, via, aquae∣ductus. Digest. lib. 8. tit. 3. Servitutum non ea natura est ut aliquid faciat, sed ut aliquid patiatur, vel non faciat, ib. fol. 215.
• Sim Du∣nelm. fol. 212. 1084. 14 Will. 1.
• 2. Inst. f••l. 232.
• Inter brevia directa Ba∣ron. de term. Mich. 32 Ed. 1. M. 4. dorso penos Rem. Regis in Scacca∣rio.
• The same Plea for the Earl of Glocest. and Herts. al∣lowed, ib. M. 5.
• Inter brevia directa Ba∣ron. de Term. Hill. 33 Ed. 1. penes Rem. Domi∣ni Thes. in Scaccario.
• Inter Com∣munia de term Mich. 31 Hen. 3. penes Rem. Domini Regis in Scaccario.
• Rot. Claus. 11 Hen. 3. M. 19.
• De term. Hill. 39 H. 3. penes Rem. Regis in Scacca∣rio.
• Nota.
• Supra inter Communia de Term. Mich. penes Rem. Regis.
• M. P. fol. 224. Ed. Tig.
• 34 Ed. 1. cap. 1. Coke 2. Inst. 532.
• Rot. Claus. 34 Ed. 1. M. 16. dor∣so.
• 25 Ed. 1. cap. 6. In this part declara∣tive of the Law, as by King John's Charter.
• Carta, Hen. 1.
• Anno 948. vita Ael∣fredi, fol. 124.
• Ne qui Ma∣gnates viz. Comes, Ba∣ro, Miles seu aliquae alia notabi∣lis persona, &c. Rot. Claus. 3. E. 2. M. 16. d. Carta Ed∣gari Re∣gis ex Re∣gistro de Ramsey in Scaccario penes Rem. Regis, fol. 336.
• Thani autem appellatio∣ne, viri in∣terdum no∣biles inter∣dum libe∣rae con∣ditionis homines, in terdum Magistra∣tus, atque saepenumerò ministri notantur, Glos. ad fi∣nem Lamb. Archaiono∣mia.
• Vide Hack∣wel's An∣cient Cu∣stoms of England, p. 97,
• Spelm. Glos∣sar. de Hun∣dred••.
• Vide Lam∣bart. de Priscis Le∣gibus.
• In vita Ael∣fredi, fol.
• Sym. Du∣nelm. fol. 243. Anno 1121.
• So. Mat. West. f. 352. of the 37 Hen. 3.
• Adunato magno Par∣liamento e∣dicto Regio.
• Ead. l. 1. fol. 9.
• Nobiles, Minores sunt Equi∣tes sive Mi∣lites, Armi∣geri & qui vulgo Gene∣rosi & Gen∣tlemen di∣cuntur, Camb. Brit. fol. 123.
• Lambert de Priscis Le∣gibus.
• The Coun∣ty was Sa∣trapia, as they that composed it were Sa∣trapae, so in a MS. cited by Mr. Selden, a tryal is had at London before the Principes, Duces, Lawyers and Satrapae, and the same renewed at Northampton, is said to be Congre∣gatâ ibi totâ provinciâ sive Vicecomitatu coram cunctis. Titles of Ho∣nour, fol. 524, & 525. Bromton, fol. 872.
• Bromton. fol. 924. Canu∣ti Leges.
• Bracton, lib. 3. p. 105,
• In praecipu∣is festis pro∣fusè convi∣vabat nata∣le Domini apud Glo∣verniam, Pascha a∣pud Winto∣niam, Pente∣coste apud Westm.
• quando in Anglia fo∣ret tenere consuevit Knyghton, fol. 2354.
• William 1. An. 1067.
• Titles of Honour, p. 581.
• Eadmeri Hist. nov. ••. 1. fol. 9.
• Cod. Roff. MS. Seldeni notae in E∣admer. fol. 197.
• MS. Histo∣ria de terris Aedel Woldi scriptus est hic liber temporibus Hen. 1. jussu Herveri E∣pisc. Eleensis primi.
• So the Re∣cord
• Inter com. de Term. Pasc. 18. R. E. fib. R. E.
• Breve aliud p. 107. a.
• A Jury.
• Under Te∣nants.
• Lords of Mannors.
• Aliud.
• These had Lands which be∣longed to the Abby, as appears in the In∣quisition.
• Eadmerus Codex Roff. Seldens spic. ad Edm. fo. 200.
• Bracton fo. 1.
• Cook. 6. Rep. fo. 11. a. & b.
• Gentle∣mans case.
• Pl. Dom. R. apud Ber∣wick super Tweedam de Octab. sanctae Tr. An. R. Ed. fil. R. H. 2^o Coram Gil∣berto de Thornton Reog. Bra∣bazon. & Rob. Malet. Just. ad pl, ejusdem Dom. R. tenend. assignat.
• Rot. Pat. 42. H. 3. m. 10. & m. 4.
• Stat. staple 27 Ed. 3. An. 1353.
• Sym: Du∣nelm. f. 213. El. Wygorn. f. 641.
• Nec multo post (viz.) post Curiam mandavit ut Arch. Ep. Com. Bar. Vicecom. cum suis mi lit. sibi occurrerent, Saresberiae quo cum venissent milites il∣lorum sibi fidel. con∣tra omnes homines jurare coe∣git.
• Cowslli Ins. juris, Ang. de Li∣bertinis Tit. 50. p. 11.
• Inter Leges Wil. 1. Cap. 65.
• Seldeni ad Ead. notae & spicel.
• Stat. West. 1.
• Rot. Claus. 38. Hen. 3.
• Rot. Claus. H. 3. p. 1. m. 18. It appears by another Record that this Shrivalty was of fee in the Count ac∣cording to the excep∣tion in the statute, which gives each County leave to chuse.
• Rot. claus. An. 11. H. 3.
• Vide leges Edw. renov 4. Wil. 1. Isti vero viri viz. Heretochii eligebantur Per Commune Concilium, pro communi utilitate regni p•• Provincias & Patrias universas & per singulos comitatus in pleno folemo•••• sicut & Vicecomites Provinciarum & Comitat. elegi debent. Lambert A••∣chaio nomia Ed Cant. fo. 147.
• 2. Iust. f. 74.
• 〈…〉〈…〉
• Neither had we a∣ny of dig∣nity al∣though the Office in some places hath been hereditary from anti∣ent time. until Hen. 6. Tit. of Hon. 1. Ed. p. 255. & 256.
• Sym. Du∣nelm. fo. 213.
• Tit. of Hon. 1 Ed. p. 373.
• Assisa de armis 27. Hen. 2.
• Tit. Hon. 1 Ed. p. 306.
• S. Dunelm.
• Lamb. Ar∣chaionom. Leges Ed. f. 146.
• Omnes pro∣ceres & milites & liberi homi∣nes universi∣totius regni Britanniae facere debent in pleno folemote fidelitatem Dom. Regi coram Epis∣copis regni.
• This seems to be meant of a Court of all the Counties and then confirms my sense. in express terms.
• Claus. 1 H. 3. m 14. dorso.
• Rolls. Rep.
• Rot. Claus. 33. E. 1. m. 15. dor.
• Rot. Claus. 5. E. 2. m. 21. dor.
• Actus Pon∣tif. Cant.
• Autore Ger∣vatio Dor. f. 1653. Antiq.
• Brit. f. 110. Relat. Wil. primi ad fi∣nem tractat. de Gavel∣kind a sylâ Tay. Ed. p. 194.
• R. Hoveden fo. 453.
• Fecit sum∣moniri, &c. nobiles sa∣pientes. &c. Electi igi∣tur de sing. totius Pa∣triae Comit. viri duode∣cim, &c. Lamberts Archionom. fo. 138.
• Seld. spicil. f. 171.
• An. 1083. 17 Will. 1.
• Gerv. Dorob. Actus Pon∣tif. f. 1653.
• Tota An∣gliae Nobi∣titas in u∣num colle∣cta, quasi sub numero non cadebat, Matt. Paris p. 255.
• Monachus Anongm.
• Ord. St. Be∣ned. p 44.
• An. 1084. 18 Will. 1.
• (i. e.) Curia Regis, Ord••∣ricus Vita∣lis fol. 647.
• An. 1085. 19 Will. 1.
• S. Dunelm. fol. 213.
• Spelm. Glos. 2▪ part. fol. 451. tit. Parl.
• Seldeni aut & spic. ad Eadmerum, fol. 168.
• An. 1087. Bromton, fol. 983.
• Malmesb. fol. 120.
• S. Dunelm fol▪ 215.
• Rog. Hove∣den, fol. 461.
• An. 1088.
• Bromton, fol. 983.
• An. 1089. 3 Will. 2.
• Order. Vi∣tal. fol. 680.
• An. 1093. 7. Will. 2.
• Eadmerus, fol. 16.
• Gondulfus Roff. Ep. Monac. Bec. inter An∣selm. Epist. lib. 3.
• An. 1094. 8. Will. 2.
• Eadmerus, fol. 24, & 25.
• Eadmerus, fol. 26.
• An. 1095. 9. Will. 2.
• Fol. 27.
• Fol. 28.
• Fol. 29.
• Fol. 31.
• Fol. 34.
• Spelman concil. vol. 2. fol. 16.
• Jewelli Ap∣contra Hard. fol. 455.
• Eadmerus, fol. 39.
• Eadmerus, fol. 34.
• An 1097. 10. Will. 2.
• Eadmerus, fol. 38.
• Eadmerus, fol. 38.
• Spelman Glos. 2. part. tit. Par.
• Sim. Du∣nelm. fol. 218.
• An. 1093.
• Titles of Honour.
• 1. Ed. P. 287.
• Rad. de Di∣ceto. fol. 492.
• Christmass Court.
• Huntington fol. 578.
• Note, he lived but in the time of Henry the Eighth.
• Lambert's Archaion, pag. 26••, 263.
• Pag. 237.
• Eadmerus, fol. 49.
• fol. 94. & 105.
• Matt. Paris, Ed. Tig. fol. 54.
• Mat. Par. f. 52, & 53.
• Florentius Wigorn. An. 1129.
• An. 1131.
• 32 Hen. 1.
• Huntington fol. 384.
• 1 Stephani An. 1135.
• Rich. Ha∣gustal. p. 312.
• Joh. Ha∣gust. f. 258.
• Mat. Par. f. 71.
• Rich. Ha∣gust. f. 314.
• An. 1138. 3. Step.
• Malmsbury f. 181, & 183.
• Malmsbury hist. Nov. 2. p. 188. 189.
• Stat. of Merton. cap. 6. 1 Inst. f. 80.
• Statuta Regni Polo∣nici.
• Continua. ad Floren. Wig. f. 671.
• An. 1141. 7 Step.
• H. Hunt f. 392.
• An. 1143.
• Neubergen∣sis p. 37.
• Radulphi Polycron.
• 1152. 17. Stephani Ger. Doro∣ber. f. 1379.
• An. 1154.
• H. Hunt f. 398. 19. Step.
• Neu••ergen∣sis lib. 1. c. 32.
• Brompton f. 1040.
• Henr. 2.
• 11 Hen. 2.
• An. 1164.
• Vid Still. answer to Cressy's A∣pol. à p. 377. usque ad finem.
• Titles of Honour, fol. 582. M. P. fol. 96.
• Ma. West. fol. 248.
• Gervasius Dor. fol. 1385.
• Imag. Hist. fo. 536.
• Antiq. Brit. in vitâ Tho. Becket fo. 133.
• Hoveden fo. 493.
• Answer to Cressy's Apol. p. 392.
• 11 Article Conc. Clar.
• Grand quest. p. 152.
• 8 Ed. 2.
• Qui habent personatum.
• Ger. Dorob. fo. 1387.
• Cum Baro∣nibus suis, Seldens Jan. Angl. facies alte∣ra, p. 9••
• Com. de Term.
• Pasch. 4 Ed. 3. penes Rem. Dom. Thes. in scac.
• Jani An∣glorum fa∣cies altera, p. 100.
• Hoveden, fo. 494.
• Tit. of Ho∣nour, fo. 583.
• Evocantur quidam Vicecomi∣tes & secun∣dae digni∣tatis Ba∣rones, anti∣qui die∣rum, ut addantur tis & as∣sint judi∣cio, Ste∣phan. MS.
• Magna Charta, cap. 11.
• This ex∣plained by Articuli super chart.
• Stat. 34 Ed. 1. De tallagio non conce∣dendo.
• Britton p. 41. The King's Bench.
• Debent in∣teresse Ju∣dic. Curiae Regis, &c. usque per∣veniatur in judicio.
• Gerv. Do∣rob. & vat. cop. quous{que} pervenia∣tur ad di∣minutionem membrorum vel ad mor∣tem.
• Ma. Par. & others.
• This the Author of the Grand Question follows as most au∣thentick.
• Bracton lib. 2. cap. 24. p. 56.
• Grand Question, p. 34.
• Grand quest. p. 34.
• Still. an∣swer to Cressy, à p. 339. ad p. 447. p. 449.
• Grand quest. p. 34.
• Titles of Honour, fo. 582.
• So of Glocest. Bote war man shall be belemed other to deth ido. Jani An∣glorum fa∣cies altera, p. 100.
• Grand quest. p. 40.
• P. 28.
• Grand quest. p. 40.
• Ejus sim∣plex Pro∣hibitio. Steph. MS.
• Grand quest. p. 40.
• Glanvile de legibus lib. 1. c. 2.
• Glanv. p. 2.
• Stephani∣des. So Gerv. Do∣rob. f. 1389.
• Grand Question, p. 40.
• Cook de Jure Regis Ecclesiasti∣co. 5. Rep.
• Gervasius Dorob. f. 1400.
• Ex commu∣ni consilio, nos inqui∣unt, eum ap∣pellabimus coram Pa∣pâ, de faci∣li convince∣tus, sine re∣medio de∣ponetur, quae cum pluri∣mum place∣rent Regi, exierunt omnes Ep. Gerv. Dor. f. 1392.
• Gerv. Dor. f. 1387.
• p. 35.
• Grand Question, p. 38.
• Grand Question, p. 27.
• Concil. To∣letan. 11. cap. 6. E∣dit. Madr. f. 553.
• 〈…〉〈…〉
• Grand Question, p. 27.
• Spelman's Concil. 2 vol. f. 11.
• An. 1175.
• 22 Hen. 2.
• Pa. 30.
• Ann. 1175.
• 22 H. 2.
• Gerv. Dor. f. 1429.
• Grand Question, p. 42.
• Hoveden, f. 543.
• Grand Quest. p. 46.
• 28 Ed. 1. cap. 3.
• Jewel con∣tra Ward, p. 518.
• 25 Hen. 8. cap 19.
• Ex Cod. MS. in Bib. Cot. sub Ef∣figie Domi∣tiani, A. 5. n. 2.
• Spelm.
• Conc. v. 2. f. 3.
• Malmesbu∣riensis, f. 118.
• Spelm.
• Conc. vol. 2. f. 1.
• Ex perve∣tusto MS. Cod. in bibl. Cot. sub ef∣figie Cleo∣patrae. c. 8. f. 35.
• Eadmer.
• Hist. Nov. f. 58.
• Eadmer. f. 57.
• f. 58.
• Contin. ad Flor. Wi∣gor. An. 1127. 28 H. 1.
• Contin. ad Flor. f. 663.
• Chronica Ger. Dorob. f. 1429.
• 〈…〉〈…〉 sup.
• N. this was according to the Mo∣dus tenendi Synodos, Secundum ordinatio∣nis suae tem∣pus resideant, only that the Modus more particularly referred to the inferiour Clergy in that.
• Hen. 2. An∣no 1176.
• 23 Hen. 2. Bendictus Abbas sub effigie Julii Ad. f. 72. Int. Bib. Cott.
• 33 Hen. 2. Glos. Tit. Finis.
• 1 Rich. 1.
• Anno 1189.
• Bromton. fol. 1161.
• Spelm. Con. 2 vol. f. 119.
• Poltons Stat. f. 95. Stat. Aspor∣ta is Reli∣giosorum.
• Bromton. f. 1166.
• Anno 1189. Bromton. f. 1170.
• This seems to have been a Great Council on the Court day.
• K. John
• Anno 1199. 1 Jo.
• Knyghton. f. 2414.
• Carta mo∣derationis feodi mag∣ni sigilli an. 1. Joh. Ex Vet. Re∣gistr. in Archivis Cant. Arch. Ma. Par. fol. 189.
• Anno 1200. 2 Joh.
• Rot. Cant. 5 Jo. m. 5. n. 33. & Rot. cart. 17 Jo. p. 2, 2. m. 3. n. 2 5.
• Eadmerus. fo. 56.
• Malmesbu∣ry. fo. 59.
• Mat. Par. 196.
• 3 Jo. 1201.
• Mat. Par. fo. 198.
• M. Par. 〈…〉〈…〉
• Celebrata igitur apud Portesmue Solemnitate Pentec. ib.
• 4 Joh.
• Anno 1202. M. P. f. 199.
• 5 Joh.
• 6. Ma. Par. fol. 200. Natale ce∣lebravit.
• Ma. Par. f. 201.
• Rot. Pat. 6 Jo. m. 2. dorso.
• m. 7. dors.
• 7 Joh.
• •• Jo. 1206.
• Ma. Par. f. 205.
• M. West. f. 266.
• Rot. Pat. 8 & 9 Jo. m. 3. dorso.
• 9 Jo. 1207.
• Archiepisc. Episc. Ab∣bates, Pri∣ores, Comi∣tes, Barones Milites & & alii magnates Regni An∣gliae. A. 37 H. 3. Fleta. lib. 2. c. 42.
• f. 212.
• 10 Jo. 1208.
• 11 Jo. 1209.
• 12 Jo. 1210.
• 13 Jo. 1211.
• 14.
• 15 Jo.
• Ma. Par. f. 224.
• Of being reputed a Turntail or Runa∣way.
• Mat. Par. f. 225.
• Stat. 25 Ed. 3.
• Pryn's King John, f. 269.
• fol. 230.
• 15. 1213.
• Mat. Par. fol. 230.
• 15 Jo. Ad natale curiam su∣am tenuit, apud Win∣dleshores. M. Paris ad. Tig. f. 238.
• Titles of Honour, fo. 587.
• Bracton lib. 3. p. 109. b.
• So Rot. Fi∣nium 8 H. 3. m. 2. dorso.
• The Head-borough.
• Rot. Pat. 42 H. 3.
• Mat. Par. f. 241.
• Magna Charta, 17 Jo. An. 1215.
• Pat. 4 Ed. 1. m. 14.
• In primo generali Parl. nostro post Corona∣tionem.
• Charta Jo∣hannis.
• An. 1254. 39 H. 3.
• Mat. Paris ••d Tig. f. 884.
• Mag. Char∣ta, cap. 9.
• Legier Book of Ely.
• Hundred.
• Inter com∣munia de Termino sancti Mi∣chaelis, An. 34 E. 1. pro hominibus villae de Co∣ventre.
• Mat. Par. f. 860.
• Nota be∣fore the large and compre∣hensive acceptati∣on of Mag∣nates Regni.
• Rot. Claus. 38 H. 3. m. 7. c. 12. dorso.
• To the Sheriff of Bedford and Bucks.
• Mat. Par. f. 859.
• Mat. Par. f. 884.
• Anno 1221. 6 Hen. 3.
• Mat. Par. f. 298.
• Mat. West. f. 280.
• Rot. Claus. 6 Hen. 3. m. 7.
• Inter Com∣munia Term. S. Mich. 34 E. 1. penes Re∣mem. Dom. Thes. in Scaccario.
• Rot. Claus. 3 E. 2. m. 16. Rastalls Statutes p. 85. 15 E. 3. 25 E. 3. Stat. 27 E. 3. Statu∣tum Sta∣pulae.
• Rot. Pat. 37 Hen. 3. m. 12. dorso. Fleta f. 93.
• Inter Com∣munia de Term. Mich. Anno 28 Ed. 1. Rot. 27. dorso.
• Communiae de Term. Sancti Hill’ Anno 17 Regis Ed. 3. pe∣nes Remem. Regis in Scaccario.
• Inter Com∣munia de Term. Pas∣chae penes Rem. in Scaccario.
• Rot. Pat. 6. H. 3.
• Rot. Claus. 19. H. 3. m. 6.
• Rot. Claus. 19. H. 3.
• Rot. Pat. 15. H. 3. m. 3.
• Nota Women granting.
• Rot. Claus. 19. H. 3. m. b.
• Inter Com∣munia de Term. San∣cti Mich.
• Anno 42. H. 3. Rot. 4. de scut. levand.
• 2 H. 3. or at least 9.
• Rot. Claus. 4 H. 3. m. 5.
• Bundela li∣terarum in Turre Lond. A. 8 H. 3.
• Rot. Claus. 14 H. 3. M. 2. dorso.
• Rot. Claus. 16 H. 3. M. 2. dorso.
• The Cler∣gy that were Landed-men or Free-hold∣ers.
• Rot. Claus. 18 H. 3. pars unica. M. 10.
• Rot. Claus. 19 H. 3. M. 6.
• Rot. Claus. ••8 H. 3. M. 3. dorso.
• Rot. Claus. 21 H. 3. M. 7. dorso.
• Rot. Pat. 24 H. 3. M. 1.
• Rot. Claus. 29 H. M. 8. dorso.
• Mat. Par. Anno 1246. vid. more at large Mr. Petit's Rights of the Com∣mons of England, Asserted from 111, to 115.
• Rot. Claus. 32 H. 3. M. 12. dorso.
• Rot. 42 H. 3. M. 3.
• Rot. Pat. 42 H. 3. M. 10.
• Rot. Pat. 42 H. 3. M. 4.
• Rot. Claus. 45 H. 3. M. 6. dorso.
• Rot. Pat. 48 H. 3. M. 2. N. 5.
• Anno 48th. H. 3. 1264.
• Rot. Pat. 48 H. 3. pars unica. M. 8. dorso. N. 10.
• Vid. Rot. Claus. 28 H. 3. M. 12. dorso.
• Considera∣tum fuit in Curiâ no∣stra Coram nobis & to∣to Parlia∣mento no∣stro.
• Titles of Honour. p. 278.
• Ex satis antiquo Authore lo∣quor.
• Anno. 1427. 23. Jac. 1.
• Ordines Angliae. p. 122.
• Titles of Honour. fol. 589.
• Titles of Honour. f. 589, 590.
• Glos. tit. Baro. Pro∣ceres nempe & maneri∣orum Domi∣ni nec non liberè qui{que} tenentes, hoc est fundo∣rum propri∣etariis Anglicè Free-hold∣ers, hoc no∣mine conti∣neri vide∣tur anti∣quis pagi∣nis.
• Claus. 27 H. 6. M. 26. dorso.
• Communia de Term Sancti Hill’ anno 19 Ed. 2. Rot. penes Rem. Domini Thes in Scaccario.
• Pro Tho∣mâ de Fur∣nivall seni∣ore exone∣rando.
• Titles of Honour. fol. 590.
• Glos. tit. Baro.
• In Charta Johannis.
• 4. Instit.
• Claus. dors. 7 R. 2. M. 32.
• Titles of Honour. ••609.
• 5 R. 2. cap. 4. Anno 1381.
• Vid. Prin••▪ first part of Parl’ Writs. p. 251.
• Titles of Honour. fol. 608. Rot. Parl. 1 H. 4. m. 16. n. 59. ib. cited, &c.
• Countess of Rutland's Case, Coke 6. Rep. fol. 53.
• Standish's Case.
• Kelloways Rep. 184. 6. Selden ad Eadm.
• Spelm. Con. 2. Vol. fol. 1.
• Mat. Westm. fol. 273. Anno 1215.
• Eadmerus, f. 70.
• Glos. tit. Ingenuus.
• Glos. 2d. Part, tit. Parlamen∣tum, ed. Lond. An∣no 1664.