JANI ANGLORUM FANCIES NOVA: OR, Several Monuments of Antiquity touching the Great Councils of the Kingdom, and the Court of the King's immediate Tenants and Officers, from the first of William the First, to the forty ninth of Henry the Third, Revived and and Cleared. Wherein, The sense of the Common-Council of the Kingdom mentioned in King John's Charter; and of the Laws Ecclesiastical, or Civil, concerning Clergy-men's Voting in Capital Cases is submitted to the judgement of the Learned.  
Decipimur specie recti—  Hor. 
LONDON, Printed for Thomas Basset at the George near St. Dunstan's Church in Fleetstreet. 1680.   

Jani Anglorum Facies Nova.  
THat King John's Charter exhibits the full form of our English Great and most General Councils in those days; if I may fay so, is the Vulgar Error of our Learned Men; and '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 understanding the Ancient Records and Histories, which mention the Great or General Councils, in his distinctions between the Curia Regis, 
Petyt 's Appendix, p. 131.  and Commune, or Generale Concilium Regni, Barones Regis, and Barones Regni, and the Servitia which were paid, or performed by reason of Tenure: And those Common Prestations, 
Bracton. lib. 2. cap. 16. p. 37.  which Bracton mentions, Sunt etiam quaedam Communes praestationes quae Servitia non dicuntur, nec de consuetudine veniunt, nisi cum necessitas intervenerit, vel cum Rex venerit, sicut sunt hidagia, corragia, carvagia, & alia plura de necessitate & consensu Communi totius Regni Introducta: Which are not called Services, nor come from Custom, but are only in case of necessity, 
Charges upon the Land according to the value or number of Acres.  or when the King meets his People; As Hidage, Courage, 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 upon it, that none of these words were ever used to signify what is the natural signification of the other: for Example, Barones and Milites, are sufficiently distinct in their sense; 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, etc. are set together, the Barones are a Rank of men superior to the ordinary Milites; 'tis enough to prove that the differences above mentioned are rightly taken, if according to the subject matter, and circumstances, we can clearly divide the one from the other.  
Now let us see the words of the Charter, 
Charta Johannis 17. Regni, Anno 1215.  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 concerned the King's Immediate Tenants.  
Nullum Scutagium vel Auxilium Ponam in Regno nostro, nisi per Commune Consilium Regni nostri, nisi ad corpus nostrum redimendum, & ad primogenitum filium nostrum militem faciendum, & ad primogenitam filiam nostram semel Maritandam, & ad hoc non fiet nisi rationabile auxilium. Simili modo fiat de Civitate Londinensi. Et Civitas Londinensis habeat omnes antiquas Libertates, & Liberas consuetudines suas, tam per terras, quam per aquas: praeterea, volumus & concedimus quod omnes aliae Civitates, & Burgi, & Villae, & Barones de quinque portubus, & omnes portus, habeant omnes Libertates, & Liberas consuetudives suas, & ad habendum Commune Consilium Regni, aliter quam in tribus casibus praedictis Hear the London Edition of Matthew Paris, 
Tiguri, fol. 247.  and that at Tours make a period distinct from what follows, and then the Sense is, that except in those three Cases, wherein the King might take Aid or Escuage at the Common Law, without the Consent of a Common Council, for all other Aids, or Escuage, a Common Council should be held; and the City of London, all Cities, Burroughs, Parishes, or Townships; that is, the Villani their Inhabitants, the Barons, or Freemen of the Five Ports, and all Ports should amongst other Free Customs, enjoy their right of being of, or constituting the Common Council of the Kingdom. But so much is certain, that if these, or any besides the Tenants in Capite came before this Charter, and were at the making of it, their Right is preserved to them by it, and is confirmed by the Charter of Hen. 3. cap. 9  
Civitas Lond. 
Magna Carta, cap. 9  habeat omnes Libertates Antiquas, 
2 Iust. fol. 20.  & consuetudines suas: preterea volumus & concedimus, quod omnes aliae Civitates, Burgi, Villae, & Barones de quinque portibus, & emnes alii portus habeant omnes Libertates, & Liberas consuetudines suas.  
And for an evidence of what was their Custom and Right, as to the Great Council of the Kingdom: both these Charters were made to, and in the presence of all the Clergy, Counts, Barons, and Freemen of the Kingdom. King john's (as Mr. Selden tells us he conceives) was made by the King, and his Barones & liberos homines totius Regni, 
Titles of Honour, f. 586, & 587.  as other particulars were of the same time.  
But the Record which he citys in the Margin puts it out of all doubt, that the Charter was made by them all.  
Haec est conventio inter Dominum Johannem, 
Rot. Claus. 17 Johannis Dorso m 21.  Regem Angliae ex unâ parte, & Robertum Filium Walteri Marescallum Dei & Sanctae Ecclesiae Angliae, 
Rot Pat. 17 Johannis pars unica m. 13. n. 3. Ib. m. ●3. dorso.  & Ric. Com. de Clare, etc. & alios Comites, & Barones & liberos homines totius Regni ex alterâ parte.  
And in another Record it is said to be, Inter nos & Barones & liberos homines Dominii nostri: So that the liberi homines of the Kingdom were present; and who were at the making of the Great Charter of Hen. 3. which has been so many times confirmed, it acquaints us at the end.  
Pro hac autem donatione & concessione libertatum, 
Magna Charta cap. 38.  & aliarum libertatum in cartâ de libertatibus forestae, Arch. Ep. Ab. Pr. Comites, Barones, Milites, liberè tenentes & omnes de Regno nostro dederunt nobis quinto-decimam partem omnium mobilum suorum.  
The Charter here mentioned of the Forest had been granted in the Second of Hen. 3. as was the Great Charter; 
Confirmatio magna Chartae facta 2. H 3. in consimili formâ cum magna Charta 9 Hen. 3. (testibus & data exceptis) exemplificata & confirmata 25. Edw. 1. prout Charta de Forestâ. Ex MS contemporaneâ statutor. penes Sam. Balduin Equitem auratum & servient. ad legèm.  the parties to the grant of a Subsidy are the very same: Archiepiscopi, Episcopi, Abbates, Priores, Comites, Barones, Milites & liberè tenentes, & omnes de Regno.  
Not to produce here the proof of such General Assemblies from the Conquest downwards to the 49 H. 3. I may say upon what I have already shown, that this interpretation of King John's Charter, 
Et de Scutagiis assidendis faciemas summoneri, etc.  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 composed the whole Council of the Kingdom, which can never be proved.  
But I will take the words together, even as they who are fond of the conjecture of their being the full Representative Body of the Nation would have it. Et ad habendum Commune Consilium Regni de auxiliis assidendis, aliter quam in Tribus casibus praedictis, & de Scutagiis assidendis submoneri faciemus Arch. Ep. Ab. & Majores Barones Regni singillatim per literas nostras. 
That is such of the Majores as held intra 〈◊〉.  Et praeterea faciemus submoneri in generali per Vicecomites & Ballivos nostros omnes alios qui in capite tenent de nobis ad certum diem, scilicet ad terminum Quadragint. dierum ad minus, & ad certum locum in omnibus litteris submonitionis causam submonitionis illius exponemus, & sic factâ submonitione negotium procedat ad diem assignatum, secundum consilium eorum qui praesentes fuerint, quamvis non omnes submoniti venerint.  
Here was I grant the form of a Common Council of the Kingdom, to the purposes here named, which are for Aid and Escuage: 
Aid upon Tenants in Common Socage.  The Aid I say, and shall show, was from those Tenants which held of the King in Common Socage, such as held Geldable, or talliable Lands, the Escuage concerned the Tenants by Knight's Service, 
Escuage upon Tenants by Knight's Service.  but both concerned only the King's Tenants in chief, which appears in the very confining the Summons to the Majores Barones Regni, and others which held of the King in Capite.  
Whereas (1) there were Majores Barones, who held not by any Feudal Tenure, that were not obliged to attend at the King's 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 obliged, or had right to be of the Common Council of the Kingdom, though not upon the accounts mentioned in this Charter.  
1. The Norman Prince, to the encouragement of those great men that adventured for his glory, made some of them as little Kings, and gave them the Regal Government of several Counties, in which they with the great men thereof, and the liberè Tenentes Freeholders, made Laws for the benefit of their Inheritances, and the maintaining the peace; 
Chester.  and that of Chester in particular was given to Hugh Lupus Tenendum sibi & Haered. ita verè ad gladium, 
Tit. Honor. 1 Edit. p. 247.  sicut ipse Rex tenebat Angliam ad coronam: So that he wanted nothing but a Crown to make him King. In a Charter of Count Hugh's, 
See Leicester's Survey of Cheshire.  of the Foundation of the Monastery of St. Werburg, he says: Ego Comes Hugo, & mei Barones confirmavimus. And one of his Successors grants to his Barons, Quod unusquisque eorum Curiam suam habeat liberam de omnibus placitis ad gladium meum pertinentibus.  
And at the Coronation of H. 3. 
20. H. 3. M. Paris fol. 563. Ed. Lond.  which was after this Charter, Earl John, another of William's Successors, carried St. Edward's Sword before the King, as Matthew Paris tells us, for a Sign, that he had of right a very extraordinary power: Comite Cestriae gladium Sancti Edwardi qui Curtain dicitur ante Regem bajulante, in signum quod Comes est Palatinus, & Regem si oberret habeat de jure potestatem cohibendi, etc.  
Though this was the chief Count Palatine, yet others had their separate Councils, where they made Laws.  
William Fitz-Osborn was made Earl of Hereford under William the First, of whom William of Malmsbury says; Manet in hunc diem in Comitatu ejus apud Herefordum legunm quas statuit inconcussa firmitas, 
Tit. Honour 1 Ed. p. 233.  ut null●s Miles pro qualicunque commisso plus septem solidis, cum in aliis Provinciis ob parvam occasi inculam in transgressione praecepti herilis, Viginti vel Viginti Quinque pendantur.  
Of the same nature are Examples in the Constitutions of the old Earls of Cornwall, 
Selden, ib.  and the like.  
To return to the County Palatine of Chester, 
doomsday in Cheshire saith, Comes tenet Comitatum de Rege. See Leicester 's survey of Cheshire.  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 mentioned in King John's Charter, where none but Tenants in Capite (obliged to the ordinary Incidents of such Tenure) were, was no general Council of the whole Kingdom, as our Modern Authors would have, though it were for the matters of ordinary Tenure, all that were concerned being at it. 
Mat. P. fo. 497. Ed. Lond. Anno 1232. 17ᵒ. H. 3. M. P.   
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; 
An. 1205. 7ᵒ. Johannis.  and therefore when that at Tewksbury, in King John's reign, held but a day, it is specially taken notice of. 
Mat. Pared. Tig. f. 359.   
Soon after King Henry's Christmas Court, 
Nequi magnates viz. Comes, Baro, Miles sevaliqua alia notabilis persona Rot. Claus. 3 E. 2. m. 16. dor.  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, 
M. P. f. 359. An. 1232. 17o. Rs. H. 3.  quod Comites Barones ac Milites qui de eo tenebant in Capite cum ipso erant corporaliter praesentes, 
Nota, This shows that the Tenants in Capite were not all the Council, because they in particular are taken notice of amongst them which came to that Council.  & pecuniam suam ita inaniter effuderunt, quod inde pauperes omnes recesserunt, unde Regi de jure auxilium non debebant, et sic petitâ licentiâ omnes recesserunt.  
Here was the Earl of Chester, this being a Summons to a General Assembly; but when the King asked money for his expenses 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 begged leave to be gone, 
The Earl of Chester was not to attend the King in his Wars, nor to pay escuage in lieu of military service, because all his Tenure was to keep to the defence of the Marches.  if the King had no other business with them, for no aid was due: So that it seems they looked upon Auxilium to be something in lieu of the service which the King's Tenant was to perform. That this concerned the King's Tenants in Capite by K 'tis. service, and no others (except the inferior talliable Tenants;) & they that were then assembled, being the Great Council of the Kingdom, took upon them to Umpire between the King and his Tenants, and to tell him that he had no pretence for aid from them, for they had performed their services due. If only Tenants in Chief, by Knight's service, are here intended by Tenants in Capite, they only most commonly attending the King in Person, though sometimes all Tenants whatever, were required to attend; and so in King John's Charter, the Summons be taken, to be only of such Tenants in Chief, than 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 show: 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 Common Council there, wherein he consulted for the good of his Palatinate apart, from the great Council of the Nation: 
Rot. Pat. 44 H. 3. M. 1. dor.  Barones & Milites Cestrenses & quamplures alii ad sum. Domini Edw. coram ipso Domino Edw. apud Shorswick, super statum terr. illius Domini Edw. Consul. & propon. quae hab. proponenda. Nay so careful were they that the Kings Feudal Jurisdiction should not interfere with the Earls or other Lords there, that they insisted upon it as their Prerogative, so say many Records, that if one held by Knight's 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 King's Courts; so that those of the County of Chester, could be no part of this Common Council, which therefore was not general.  
In an Inquisition taken 22 Edw. 1. Dicunt quod a tempore quo non extat memoria, 
22ᵒ. Ed. 1. n. 45. sub Custod. Camerar in Scaccario.  tam temporibus Comitum Cestr. quam temporibus Regis Hen. Patris Domini Regis qui nunc est, ac tempore ipsius Domini Edw. Regis nunc secundum consuetudinem per quandam praerogativam hactenus in Com. Cestr. optentam & ufitatam Domini feodorum in Com. praedict. post mortem tenentium suorum custodiam terrarum & tenement. quae de eis tenentur per servitium militare usque ad legit. aetat, haered. hususm. ten. licet iidem tenentes alias terr. & ten. in Com. praed. vel alibi de Domino Rege tenuerunt in Capite semper huc usque habuerunt, & habere consueverunt, etc.  
King Edward the First, 
Rot. Pat. 2. Ed. 1. M. 6.  sends Arch. Ep. Ab. Pri. Com. Bar Mil. & omnibus aliis fidelibus suis de Com. Cestriae, and desires them that since the Prelati, Comites, Barones & alii de Regno, which one would think took in the whole Kingdom, had given him the fifteenth part of their moveables, they would do the like, and we find a Record of their giving a part from the rest of the Kingdom.  
Cum probi homines & Communitas Comitatus Cestriae sicut caeteri de Regno nostro 15 m. 
Rot Pat 20. Ed. 1. M. 6.  omnium bonorum suorum nobis concesserunt gratiosè.  
So that these were then no part of the common concilium Regni within this Charter, and no man can show that they were divided since the time of William the First.  
2. There were others who were obliged, or had right to be of the Common-Council of the Kingdom, though not upon the accounts mentioned in this Charter; which if it appear, than this was not the only Common Council of the Kingdom, or the full form of it, because there were Common Councils wherein were other things treated of, and other Persons present. For this it is very observable, there is nothing but Aid and Escuage mentioned, nothing of Advice or Authority given in the making of Laws, which were ever enacted with great solemnity, and all the Proprietors even of Palatinate Counties were present in Person or Legal Representation, when ever a general or universal Law was made that bound the Kingdom. But to wave this at present, I shall give one instance from Records, that others were to come or had right, besides they that came upon the account of Tenure as here mentioned.  
The Pope writes to King Hen. 3. 
Bundella literar. in Turre London. An. 8. H 3.  in behalf of some of his great men, who had complained to the Pope that he had excluded them from his Councils. The King answers that they had withdrawn themselves, 
Ne qui Magnates viz. Comes, Baro, Miles seu aliqua alia notabilis persona, etc. Rot. Claus. 3 E. 2. m. 16. dor.  and that Falcatius de Brent the chief of them, was by the advice of the Magnates totius Regni, all the great men of the Kingdom, called and admonished to receive the Judgement of the King's Court, according to the Law of the Land. Cum aliâs teneatur ratione possessionum magnarum, & officii maximi quod habuit in Curiâ nostrâ, ad nos in consiliis nostris venire non vocatus.  
Although besides the obligation to obey the King's Summons, he was bound by reason of great Possessions, and a very considerable Place at Court to come to the King's Councils, though not called; that is, when ever it was known that a Council was to meet, which might have been done by an Indiction of an Assembly without sending to any body.  
This shows very plainly that there were others to come to the Great Councils, besides those that were to come to those Common Councils, and other occasions for meeting; for confine it to the persons and causes here specified they were to have Summons, the Majores Special, the Minores General by the Sheriffs, and 40 days notice; whereas the King said, and could not be ignorant of King John's Charter, which was but 10 years before, that Falcatius was to come without Summons.  
But there is a further irrefragable Argument in the Negative, viz. that this Commune Consilium Regni, was not the Great Council of the Nation: And that is the Judgement of a whole Parliament in the Fortieth of Edw. 
Rot. Parl. 40 Ed. 3. n. 7, 8.  the Third, above three hundred years ago, when 'tis probable that they had as clear a knowledge of the Laws, Customs, and Public Acts in King John's time, as we have of what passed in the Reign of Henry the Eighth. It appears by the History that King John had resigned his Crown in such a Council as this here, 
Matt. Par. p. 236.  it was Communi Consilio Baronum nostrorum and yet the Prelates, 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, without their Assent: And the King could not bring the Realm in Subjection, Sanz assent de eux.  
If it had been in the Great Council of the Kingdom, though it was not possible for the parties then at Council to have been assenting personally to King John's Resignation; yet they had assented by a Natural as well as Legal Representative, as has been long since shown by the Judicious Mr. Hooker.  
To be commanded we do consent, 
Hooker Eccles. lib. fol. 29.  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 public Society of men done five hundred years passed sithence standeth as theirs, who presently are of the same Societies, because Corporations are immortal. That King John resigned his Crown, without a Parliamentary Consent, is to be taken for granted after this solemn determination; the only question is, whether 'twas with the consent of his Curia, 
Matt. Paris Ann. 1212. 14 Johannis.  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 specified under the Denominations of Comites, Barones & Omnes qui Militare Servitium ei debebant, this was to have them pass the Seas with him, and they that stayed at home, gave him Escuage. Veniente autem die statuto, multi impetratâ licentiâ dant Regi de quolibet Scuto duas Marcas Argenti. Here was a Military Council, and a Military Aid given; they that were with him at Dover are not particularly described by Matthew Paris, but he tells us, Convenerunt Rex Anglorum, & Pandulphus cum proceribus Regni apud domum Militum, Templi juxta Doveram 15. die Maii, 
Matt. Par.  ubi idem Rex juxta quod Romae fierat sententiatum, resignavit coronam suam cum Regnis Angliae, etc.  
This was Communi Consilio Baronum nostrorum, 
Matt. Par. Knyghton.  as Matt. Paris and Knyghton render the Charter.  
As Matt. Westminster ad optimum consilium Baronum nostrorum, 
Matt. West. fol. 271.  the last gives us the form of the Summons which shows who were the Commune Consilium Regni here, the Proceres Regni mentioned in Matt. Paris. Omnes suae ditionis Homines, 
Matt. West. fol. 271.  viz. Deuces, Comites & Barones, Milites & Servientes cum equis & armis: So that here was a Military Summons to them that ought to come, because of Services, which is explained by the Summons to Dover, which was to Omnes qui militare servitium ei debebant, if he thought all were bound to that Service, and summoned all, still the Parliaments Judgement satisfies us, either that the rest were not obliged, and therefore came not, or if they came as they often did in Hen. 3. time, upon the like summons, as appears by many Records of that Age, that the King's Tenants only assented to the Resignation.  
Either way it resolves into this, that a Council of the King's Tenants, was not a Council that could lay any Obligation upon, or pretend to a Representation of the whole Kingdom.  
Indeed I meet with a MS. wrote I suppose in the time of Hen. 6. above two hundred years past, the Author of which (being induced by all the Records, or Histories, which had then appeared to him, to believe that nothing could be of Universal Obligation, even in King John's time, but what was assented to as universally as Laws were when he wrote) gives us King John's Charter of Resignation in a very full and complete form, as if it had been—  
Per consilium & assensum nostrorum Procerum Arch. Ep. Ab. Prior. Comitat. 
MS. Cod. ex Bib. Dom. Wild nuper defunct.  Baronum, Militum, Liberorum hominum, & omnium fidelium nostrorum: Whereby if his Authority could stand in competition with the Great Councils, he would remove the Objection that had been long before made, which was, that this Resignation made in the ordinary Curia, was not in a Legal Representative of the Kingdom.  
It seems that both the Parliament and this Author were then satisfied that the King's Feudal Peers or Tenants in Chief could not make a Commune Consilium Regni, as a full Parliament in King John's time.  
Besides it is worthy of consideration, that if none but Tenants in Capite were of the Common Council of the Kingdom at this time, than all the Abbots, Priors, and other Dignified Clergy, who held not of the King in Chief, and yet were very numerous, together with the whole body of the inferior Clergy, were entirely excluded from, and never admitted to this Common Council any more than the rest of the Laity, from the time of William the First, to the forty ninth of Henry the Third.  
This I conceive is enough in the Negative, that the King's Tenants could not within the meaning of this Charter make the Common or General Council of the Nation: If it be said that they made the Common or ordinary Council for matters of Tenure or ordinary Justice, I shall not oppose it, in which sense they might be said to be a Commune Consilium Regni, but that sense cannot be here intended, because the words are Commune Consilium de auxiliis assidendis aliter quam, etc. & de scutagiis, etc. So that 'tis manifestly no more than a Common Council for the assessing of Aids and Escuage; and if I show that the Aids and Escuage concerned the King's Tenants only, than the Common Council of the Kingdom dwindles into a Common Council of the King's Tenants for matters concerning their Tenure.  
If no instance can be shown from Record or History of Auxilia or Aids raised by the Kings of England without more general consent, except such as were raised of his immediate Tenants; and those cases wherein the King here reserved to himself a power of charging with Aid or Escuage without consent of a Common Council concerned his Tenants only, and more than those Tenants were parties or privies to this Charter, it must needs be that the other cases wherein the consent of a Common Council was requisite, concerned Tenants only, since only their consent is required, and they only stood in need of this clause of the Charter.  
That two of the three above mentioned (viz.) Aid to make the Eldest Son a Knight, and to marry the Eldest Daughter were incident to Tenure, appears by the Stat. West. 1. Cap. 36. which ascertains the Aid which before as that declares was not reasonable, and shows upon whom it lay (viz.) Tenants by Knight's Service and Socage Tenants, and there is no doubt, but if the King might by Law have required Aid, in those two cases he might have done it, in the third for the redemption of his own body, which was a service a King of England, especially after the loss of Normandy, which often occasioned the exposing their Sacred Persons, 
Note, a Common Lord had Aid in the like case by King John's Charter.  so little stood in need of and was likely so rarely to happen, that there was no need to redress, by the Statute of West. any grievance arising from thence.  
Though the Statute here spoken of be only in the affirmative, what Tenants by these Services shall pay: Yet this has been taken to be pregnant with a Negative as to all others not mentioned. So 11 Hen. 4. fol. 32. Nul grand sergeanty ne nul altar tenure mes seulement ceux queux teigne, in Chivalry & en Socage ne paieront Aid a file merrier pour ceo Stat. de West. 1. cap. 36. voet que ceux deux tenors serroint charges & ne parle de auters tenors; that is, none but Tenants by Knight's Service and Socage are liable to these Auxilia. But over and above these incidents, whether with consent of Tenants, or advice of other Council, or merely of their arbitrary motion Kings used to raise money upon their Tenants, and these were called Auxilia, which is the word used in this Charter of King John, the levy upon Tenants by Knight's Service was called Escuage, because of their Servitium Scuti, Service of the Shield, that upon Tenants of their Demesns in Common Socage, Tallage, which is a word that might be of a large extent, as it signifies a cutting off from the Estate, but being it was never used as an imposition with pretence of Duty but upon his Tenants, and that which was raised upon Tenants by Knight's 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 sense to reach to all Tenants and others; as in William the First his Emendations or Charter of Liberties, 
William 1.  the 1. Magna Charta.  
Volumus etiam ac firmiter praecipimus & concedimus, 
Seldeni ad Fadmer. & notae & specilegium fol. 190.  ut omnes liberi homines totius Monarchiae Regni nostri praedicti, habeant & teneant terras suas & possessiones suas benè & in pace liberas ab omni exactione injustâ & ab omni Tallagio, ita quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jure nobis facere tenentur, & prout statutum est eyes & illis à nobis concessum jure haereditario in perpetuum, per Commune Concilium totius Regni nostri praedicti.  
In a General Council of the whole Kingdom it had been settled what the King should have of his Tenants by reason of Tenure, and what Free Services he should have even of those Freemen which were not his Tenants.  
Thus by the Oath of Fealty or Allegiance and by the Law of Association, 
Ib. cap. 52, 59  or the revival of the Frank Pledges, every Freeman was tied to Service for the Defence of the Peace and Dignity of the Crown and Kingdom, 
Et ad judicium rectum & sustitiam constanter omnibus modis pro posse suo sine dolo & sine dilatione faciend. ib.  and by the Association more particularly to maintain Right and Justice; for all which they were to be conjurati fratres sworn Brethren.  
And besides this there were Services belonging to the Crown, which lay upon the Lands of Freemen; To instance in Treasure, Trove and Royal Mines, 
Knyghton, fol. 2358.  Thesauri de terris Regis sunt nisi in Ecclesiâ vel Coemeterio inveniantur. 
Leges Will. 1.   
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, 
Servitutes rusticorum praediorum sunt haec, iter, actus, via, aquaeductus. Digest. lib. 8. tit. 3. Servitutum non ea natura est ut aliquid faciat, sed ut aliquid patiatur, vel non faciat, ib. fol. 215.  which consisted in something to be suffered upon Lands or Houses.  
But he would not exact or take from them by force any kind of Tallage.  
Therefore the Historian tells us, 
Sim Dunelm. fol. 212. 1084. 14 Will. 1.  that in the year 1084. De unaquaque hidâ per Angliam VI solidos accepit, he accepted as a voluntary gift 6 s. of every hide of Land throughout the Kingdom, if 'twas without consent, 'twas against his own Charter, and so illegal.  
But to proceed to show the nature of the Auxilia, which came from Tenants in the Reign of some of his Successors, either ordinary as common incidents or extraordinary.  
By the Common Law, 
2. Inst. f●l. 232.  as the Lord Cook observes upon the Statute of West. 1. cap. 36. to every Tenure by Knight's Service and Socage, there were three Aids of money called in Law Auxilia, incident and implied without special reservation or mention (that is to say) relief when the Heir was of full Age, Aid pur fair fitx Chevalier, & Aid pur file merrier.  
When the Lord Cook tells us that these Services were incident to Socage Tenors, as well as Knight's Service it must be intended, when it is spoke of the Services of the Tenants of the King's Ancient Demeasn only, for they that held of the King by certain Rent, which was Socage Tenure, were not subject to the payment of the Tallage, except their Land were of the Ancient Demeasn of the Crown.  
And therefore Robert de Vere Earl of Oxford, who held a Manor of the Crown by a certain Rent, which to be sure was not Knights Service, 
Inter brevia directa Baron. de term. Mich. 32 Ed. 1. M. 4. dorso penos Rem. Regis in Scaccario.  pleads that he held the Manor with the Appurtenances, per Servitium Decem librarum Regi, ad Scaccarium annuatim reddendum pro omni Servitio, & Regidedit intelligi quod idem Manner non antiquo dominico Coronae Regis Angliae nec est de aliquibus temporibus retroactis in Tallag. 
The same Plea for the Earl of Glocest. and Hearts. allowed, ib. M. 5.  per Progenitor. Regis Angliae in dominicis suis assessis consuevit talliari.  
Upon search made he and his Tenants are freed from Tallage.  
So the King declares that he will not have Aid, 
Inter brevia directa Baron. de Term. Hill. 33 Ed. 1. penes Rem. Domini Thes. in Scaccario.  that is Tallage for marrying his Eldest Daughter of any Clergymen 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 Manor, 
Inter Communia de term Mich. 31 Hen. 3. penes Rem. Domini Regis in Scaccario.  ad foedi firmam, that is at a certain Rent of the gift of Hen. 2. and was never afterwards talliated, quum Praedecessores nostris Reges Angliae & nos talliari fecimus Dominica nostra (it seems though the Land had been of Ancient Demeasn, yet it was severed by the Purchase.)  
This Tallage was called Auxilium in the Record. 
Rot. Claus. 11 Hen. 3. M. 19  De consilio nostro provisum est quod auxilium efficax assideri faciamus in omnibus burgis & dominicis nostris.  
Yet the City of London being charged with a Tallage, the Common Council dispute whether it were Tallagium or Auxilium which is there meant of a voluntary Aid, 
De term. Hill. 39 H. 3. penes Rem. Regis in Scaccario.  not due upon the account of any of their houses being of the King's demeasne, though indeed 'tis then shown that they had several times before been talliated.  
This explains that part of the Charter, simili modo fiat de Civitate Londinensi, that is, as in all cases besides those excepted, Escuage or Tallage should not be raised but by a Common Council of the Kingdom, that is, of all the persons concerned 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 King's Demeasns should be talliated, the proportions payable there should be agreed by the Common Council of the City, according to that Record, 11 Hen. 3. Assedimus auxilium efficax in Civitati nostra London. Ita quod singulos tam Majores quam Minores de voluntate Omnium Baronum nostrorum Civitatis ejusdem per se talliavimus. 
Nota.  Et ideo providimus simile auxilium per omnes Civitates nostras, Burgos & dominica nostra assidere.  
This per se talliavimus was a talliating per Capita, for when the Common Council refused to give such a sum in gross, as the King demanded, than the King was put to have it collected of every Head, 
Supra inter Communia de Term. Mich. penes Rem. Regis.  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 confined to reasonable, that is, secundum facultates, or salvo contenemento, and in those cases wherein their consent was required, things were carried by the Majority of voices amongst them that were present upon his Summons, which sometimes were very few; as when he held his Court at Westminster in the fifteenth of his Reign on Christmas the chief time, 
M. P. fol. 224. Ed. Tig.  'twas cum pauco admodum Militum Comitatu, there arose a very great inconvenience, and a few Tenants called together at a time, when the rest could not attend, as in Harvest, or the like, might ruin the rest; therefore this separate Court of Tenants is wholly taken away in the Reign of Edward the First, and he promises that no Tallage or Aid (without any reservation) should be levied for the future, without the consent of a full settled Parliament, not that it was incumbent upon all that came to Parliament to pay either Tallage or Escuage; but as they were the Great Council of the Nation they should advise him, when, or in what proportion to talliate his Demeasns, or lay Escuage upon his Tenants by Knight's Service: And when the King's Tenants paid Escuage by Authority of Parliament, the Tenants by Knight's Service of inferior Lords, were obliged to pay to their Lords, 
34 Ed. 1. cap. 1. Coke 2. Inst. 532.  Lit. Sect. 100 the Statute is thus, Nullum tallagium vel auxilium per nos vel haeredes nostros in Regno nostro ponatur seu levetur sine voluntate & assensu Archippus Ep. Comitum, Baronum, Militum, Burgensium & aliorum liberoum hominum de Regno nostro.  
Pursuant to this the very same year is a Record of a Summons for a Parliament to consider of an Aid to make his Eldest Son Knight, for which before he need not have consulted his Parliament, nor the Council of the Tenants; de jure Coronae nostrae in hujusmodi casu auxilium fieri nobis debet, 
Rot. Claus. 34 Ed. 1. M. 16. dorso.  says the Record, and yet he had tied up his hands from raising it without consent of Parliament.  
However King John had in some measure redressed their grievance, giving them assurance that there should always be the general consent of Tenants for what was not payable of right and custom, without any consent of theirs, 
25 Ed. 1. cap. 6. In this part declarative of the Law, as by King John's Charter.  and for the assessing those sums to which consent was made necessary, there should be a convenient notice that none might complain of the injustice of the charge.  
But all these things so manifestly relate to Tenure, both the cases excepted and the cases provided for, that no other sense can be tolerable, for where the King reserves three incidents to Tenure, and the particulars within the provision are appendent to Tenure, and none but Tenants are mentioned, shall we believe that something Foreign is intended by the very same words? though we may well believe that all Aids whatever were intended by the Statute of Edw. 1. because the consent of all People; Tenants, and others is required.  
Thus far I think I am warranted by very good Authorities; I take leave to observe farther, that it should seem that before this Charter the King might have charged his geldable or talliable Lands, that is, those Lands which were held of his Demeasn in Socage at his own discretion, but could not charge them that held by Knight's Service without their consent, and so this part take it, barely to the consenting is for the advantage and relief of the Socage Tenants only. The Charter of Henry the First, which exempts the King's Tenants by Knight's Service, ab omnibus geldis, that is, tribute or forced payments beyond ordinary Services, leaves the King a Power of charging his other Tenants by meaner Services, though not those which held by Serjeanty, pro omni servitio.  
Militibus qui per loricas terras suas deserviunt terras dominicarum carucarum suarum quietas ab omnibus geldis & ab omni opere proprio dono meo concedo, 
Carta, Hen. 1.  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 Knight's Service are eased in relation to part of their Service.  
They were obliged to attend the King's Court, either in his Wars, his administration of Justice, or for the assessing of Escuage upon those that made default in their Personal Services; for the first there could not be any time of summons or place of attendance ascertained, because occasion and necessity was to determine that; for the second, they could not claim it as a privilege, the administration of Justice being within the King's Ordinary Power, and his Ministers and Justices were sufficient assistants. But in the last there was a grievance in which 'twas proper for the King's extraordinary Justice to relieve them. Et ad habendum Commune Consilium Regni de scutagiis assidendis, for the assessing of Escuage, which was part of the work of the Curia, they should be summoned, as is thereby provided.  
Even before the Normans coming the Kings used to celebrate Feast-days with great solemnity, and at those days they chose habere colloquium, 
Anno 948. vita Aelfredi, fol. 124.  to consult with their People: So King Eldred summoned all the Magnates of the Kingdom to meet him at London on our Lady-day. 
Ne qui Magnates viz. Comes, Baro, Miles seu aliquae alia notabilis persona, etc. Rot. Claus. 3. E. 2. M. 16. d. Carta Edgari Regis ex Registro de Ramsey in Scaccario penes Rem. Regis, fol. 336.  In festo Nativitatis B. Mariae universi Magnates Regni per Regium Edictum summoniti, etc. Londoniis convenerunt ad tractandum de negotiis publicis totius Regni; so King Edgar had a Great Assembly, and called it Curiam suam at Christmas.  
Cum in natali Dominico omnes Majores totius Regni mei tam Ecclesiasticae Personae quam seculares ad Curiam meam celebrandae mecum festivitatis gratiâ convenissent coram totâ Curiâ meâ corroboravi.  
That the Curia Regis than consisted not of the King's Tenants only: I could show 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 shows what in Ancient time made a Churl or Peasant 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 Kitchen, a Bellhouse and a Burrough-gate, with a Seat and any distinct Office in the Kings Court. This Churl is in an Ancient MS. cited by Mr. Selden called Villanus; so that if a man were not Freeborn if he could make such an acquisition he became ipso facto, a Thane, a Freeman, 
Thani autem appellatione, viri interdum nobiles interdum liberae conditionis homines, in terdum Magistratus, atque saepenumerò ministri notantur, Glos. ad finem Lamb. Archaionomia.  as they were often used the one for the other, which I think is easily to be collected from several places in Doomsday Book, and as at that time such circumstances with a place in the King's Court made a Thane or Freeman, 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 Tenure. But this is to be observed that this being spoke of as antiquated, and that the People and Laws were in reputation when this was the usage, there is a strong presumption from hence, that since that time a less matter than five hides of Land, 
Vide Hackwel 's Ancient Customs of England, p. 97,  a Church, etc. gave a place in the King's Court when Nobilty was cheaper, and so the People, the Nobles of less reputation. The Normans followed not only the Lane but the decent Customs and Ceremonies of the former Government, though not directly yet by way of resemblance.  
And whereas the Saxon Kings celebrated their Courts often on great Feast days before all their People upon public notice, King William erects Tenors, whereby all that he had obliged by his gifts, except such as out of special favour were to do some small thing, pro omni servitio, should make a little Court or Council by themselves either Military (if occasion were) or Judicial in matters belonging to their feud.  
And by Henry the Third's time, if not Henry the Second, it took in all, or most matters of ordinary Justice; whereas before, its business was confined to the Controversies arising between the King's immediate Tenants, other Suits, especially about Lands, were settled in the Counties or Hundreds, or in particular Lords Courts, as appears by the Charter of Henry the First, de Comitatu & Hundredis tenendis.  
Henricus Rex Anglorum Sampsoni Episcopo & Ursoni de Abecot & omnibus Baronibus Francis & Anglicis de Wircestrescirâ, 
Spelm. Glossar. de Hundred●.  salutem: sciatis quod concedo & praecipio ut à modo Comitatus mei & Hundreda in illis locis & eisdem terminis sedeant sicut sederunt in tempore Regis Edw. & non aliter. 〈◊〉 enim quando voluero faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam.  
I cannot here omit the plain observation that dominica necessaria, cannot be meant otherwise than of the King's own business; for his necessary Demeasns were nonsense, therefore the sense is, that as often as he had occasion, he would give them, that is, all the Counties and Hundreds, sufficient notice for attending him; so that here is a clear description of the nature of his Great Councils, nay, and of St. Edward's too, in that when he says, they shall sit no otherwise than they had done in St. Edward's time, he adds; For when I have a mind to it, I will cause them to be sufficiently summoned to meet upon my necessary occasions, of which, I will be Judge, that is, so it was in King Edward's time, and indeed so it appears in the Body of his Laws recited in the Fourth of William the First, 
Vide Lambart. de Priscis Legibus.  where 'tis enacted that Tithes shall be paid 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 Tithe of his own Demeasns. 
In vita Aelfredi, fol.  Rex Decimas Ecclesia concessit ex omnibus suis terris sive Villis Regiis, about ten years afterwards the Tithes were settled all over the Kingdom by a general consent, totâ regione cum consensu Nobilium & totias populi.  
By the Populus is not to be intended all People whatsoever, for they who were not Freeholders were not People of the Land, were no Cives, and were not properly a part of any Hundred or Country, for they were made up of the Free Pledges, the Freeholders, Masters of the several Families, answering for one another by Ten, Ten Ten, or tithings at first making an Hundred Court, and more or fewer Hundreds (according to the first division or increase) a Country, and for the clear understanding the general Words, as Principes, Thaini, Barones, Proceres, Baronagium, Barnagium Regni, or the like, relating to the Great Councils of the Kingdom before and since the Norman acquisition, we find by this Charter of Henry the First, that the Counties and Hundreds, that is, the men which composed those Courts were upon sufficient notice to attend upon the King's business, 
Sym. Dunelm. fol. 243. Anno 1121.  that is, constitute the Councils, and therefore Simeon of Durham very properly says of the Great Council, 
So. Mat. West. f. 352. of the 37 Hen. 3.  Concilio totius Angliae adunato, the same with what Eadmerus says of the Council of Pinnedene in the First William's time, 
Adunato magno Parliamento edicto Regio.  adunatis primoribus & probis viris non solum de Comitatu Cantiae sed & de aliis Comitatibus Angliae, 
Ead. l. 1. fol. 9  here were the probi homines the Freeholders of the Counties, they that made the County Court or Turn, either of which in St. Edward's Laws is called the Folkmote, and is there described vocatio & congregatio populorum omnium, and we find by Statutes made before this time, that the populus omnis, or the primores & probi homines, according to Eadmerus are called Peers or Nobles, 
Nobiles, Minores sunt Equites sive Milites, Armigeri & qui vulgo Generosi & Gentlemen dicuntur, Camb. Brit. fol. 123.  for that the Country-Court, or Turn at least, was Celeberrimus ex omni satrapiâ conventus. Thus in King Edgar's Laws, Centuriae Comitiis quisque ut antea praescribitur interesto oppidana ter quotannis habentur Comitia. Celeberrimus autem ex omni satrapiâ bis quotannis conventus agitor, cui quidem illius Diocesis Episcopus & Senator intersunto, etc. 
Lambert de Priscis Legibus.  This some great men have taken for a General Council or Parliament, but the contrary is manifest in that only the Bishop of the Diocese, 
The County was Satrapia, as they that composed it were Satrapae, so in a MS. cited by Mr. Selden, a trial is had at London before the Principes, Deuces, Lawyers and Satrapae, and the same renewed at Northampton, is said to be Congregatâ ibi totâ provinciâ sive Vicecomitatu coram cunctis. Titles of Honour, fol. 524, & 525. Bromton, fol. 872.  and one Senator either the Count or the Sheriff are to sit there in Chief and this very Law being taken notice of by Bromton, it is there called Scyremotus; so in Canutus his Laws, where this is repeated, 
Bromton. fol. 924. Canuti Leges.  and where Canutus his Laws give an Appeal from the Hundred to the County-Court or Turn; this of the County is called Conventus totius Comitatus quod Anglicè dicitur Scyremote.  
But to proceed with the Charter of Henry the First, concerning the County and Hundred Court.  
Et si amodo exurgat placitum de divisione terrarum si interest Barones meos dominicos tractetur placitum in Curiâ meâ: Et si inter vavasores duorum Dominorum tractetur in Com. etc. Though according to this the Titles to Land between all but immediate Tenants, or such Lords as had none over them but the King, were determinable in the County, yet sometime before the Great Charter of Henry the Third, Common Pleas in General, which takes in the Titles of Land followed the King's Court, where ever he held it, and by that Charter were brought to a certain place. Communia placita non sequantur Curiam nostram sed teneantur aliquo loco certo. The King's Bench is coram Rege, and used to follow the King's Court, and was removable at the King's pleasure. Here Common Pleas as well as matters of the Crown were heard, and at this doubtless all the King's Tenants by Knight's Service used to be present, 
Bracton, lib. 3. p. 105,  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 libertatem; But as the Curia Regis was held sometimes of the Tenants and Officers only sometimes of the whole Kingdom, when matters having no relation to Tenure or ordinary Judicature were in question, hence has arose the mistake of some Learned Authors in taking the Curia Regis to be nothing but the Court of the King's Tenants, of others that 'twas meant only of the Great Council of the Nation.  
Whereas we may trace their frequent distinctions from the Conquest downwards very apparently, and very often their union.  
It is agreed on all hands that the ordinary Curia was held thrice a year, 
In praecipuis festis profusè convivabat natale Domini apud Gloverniam, Pascha apud Wintoniam, Pentecoste apud Westm.  at Christmas, Easter, and Whitsuntide, and in the time of William the First, the places were as certain on Christmas at Gloucester, on Easter at Winchester, on Whitsuntide at Westminster, while they were held at the accustomed places, there was no need of any Summons, they that were to come ratione Tenurae might well come the More; 
quando in Anglia foret tenere consuevit Knyghton, fol. 2354.  afterwards, they removed from place to place, the King made the Court where ever he was pleased to hold it, and indeed when ever; but than it could not be the Curia de more: if it were at a different time or place, than there was need of Summons, if there were summoned at any time more than the Ordinary Members of the Curia; if this was on the day of the Curia there was an Union of the Great Council and the Curia, if on a different day there was a Great Council by its self, yet the Members of the Curia were a part thereof.  
Not to anticipate what will appear from the Precedents 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, 
William 1. An. 1067.  as Mr. Selden supposes, 
Titles of Honour, p. 581.  was held the Council at Pinnedene, to determine the difference between Odo Bishop of Baieux, Earl of Kent, and Archbishop Lanfranc; if this were a Curia de More, then 'tis evident that more than Tenants in Chief; nay, all Proprietors of Lands assembled then of course even at the Curia, for the probi homines of several Counties were there, but it appears that it was upon the King's Summons to all the Freeholders of Kent, and of some adjacent Counties.  
Praecepit Rex quatenus adunatis primoribus & probis viris non solum de comitatu Cantiae, 
Eadmeri Hist. nov. ●. 1. fol. 9  sed & de aliis comitatibus Angliae querelae Lanfranci in medium ducerentur, examinarentur, determinarentur.  
Disposito itaque apud Pinnedene Principum conventu Godfridus Episcopus Constantiensis vir eâ tempestate praedives in Angliâ vice Regis Lanfranco justitiam de suis querelis strenuissime facere jussus fecit.  
Here all the probi homines are by variation of the phrase conventus Principum, a Bishop was Precedent and pronounced the Judgement; but it was, as 'tis said afterwards, Ex communi omnium astipulatione & judicio, this Judgement was afterwards revoked in another Council, which to be sure must have been as large as the other, else the Lawyers who were there, could never have made any colour of an Argument for the revocation.  
Item alio tempore idem Odo permittente Rege placitum instituit contra saepe fatam Ecclesiam & Tutorem ejus patrem Lanfranc & illius omnes quos peritiores legum & usuum Anglici Regni noverat gnarus adduxit. Cum igitur ad ventilationem causarum ventum esset omnes qui tuendis Ecclesiae causis quâque convenerunt in primo congressu ita convicti sunt ut in quo eas tuerentur simul amitterent. 'Tis observable that there was a legal trial, 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 Judgement 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 Officers, and is more than a County Court.  
Yet in the nature of a County Court, it being several Counties united, and so was adunatio conciliorum, though not of the Council of the whole Nation.  
An Ancient MS. 
Cod. Roff. MS. Seldeni notae in Eadmer. fol. 197.  makes this Chiefly a Court of the County of Kent.  
Praecepit Rex Comitatum totum absque mora considere, & homines Comitatus omnes francigenas & praecipuè Angl. in antiquis legibus & consuetudinibus peritos in unum convenire.  
But than it adds, & alii aliorum Comitatum homines, and so confirms what Eadmerus says.  
The nature of these Courts is easily to be explained by Writs, which we find from William the First for such Trials as this at Pinnedene. 
MS. Historia de terris Aedel Woldi scriptus est hic liber temporibus Hen. 1. jussu Herveri Episc. Eleensis primi.   
Willelmus Anglorum Rex omnibus fidelibus suis & Vicecomitibus in quorum Vicecomitatibus abbatia de Heli terras habet, salutem: Praecipio Abbatia de Heli habeat omnes consuetudines suas, etc. has inquam habeat sicut habuit die qua Rex Edwardus fuit vivus & mortuus, 
So the Record  & sicut meâ jussione dirationatae sunt apud Keneteford per plures scyras ante meos Barones, 
Inter come. de Term. Pasc. 18. R. E. fib. R. E.  viz.  
Gaulfridum Constansiensem Episcopum, & Balwinum Abbatem, & Petrum de Valonnus, & Picotum Vicecomitem, & Tehehen de Heliom, & Hugonem de Hosden, & Gocelinum de Norwicum, & plures alios Teste Rogero Bigot.  
Willielmus Rex Anglorum Lanfranco Archiep. 
Breve aliud p. 107. a.  & Rogero Comiti Moritonio & Gauffrido Constantiensi Episcopo, salutem. Mando vobis & praecipio ut iterum faciatis congregari omnes scyras quae interfuerunt placito habito de terris Ecclesiae de Hely antequam mea conjux in Normaniam novissimè veniret.  
Cum quibus etiam sint de Baronibus meis qui competenter adesse poterunt, & praedicto placito interfuerunt et qui terras ejusdem Ecclesiae tenent. 
A Jury.  Quibus in unum congregatis eligantur plures de illis Anglis qui sciunt quomodo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit, et quod inde dixerint ibidem jurando testentur. Quo facto restituantur Ecclesiae terrae quae in dominico suo erant die obitûs Edwardi, exceptis his quas homines clamabunt me sibi dedisse; Illas vero literis signate quae sint et qui eas tenent. 
Under Tenants.  Qui autem tenent Theinlandes quae proculdubio debent teneri de Ecclesiâ, faciant concordiam cum Abb. quam meliorem poterint et si noluerint terrae remaneant ad Ecclesiam. 
Lords of Manors.  Hoc quoque de tenentibus socam et sacam fiat. Denique praecipio ut illi homines faciant pontem de Heli qui meo praecepto et dispositione hucusque illum soliti sunt facere.  
Willielmus Rex Anglorum Goffrido Episcopo et Rodberto et Comiti Moritonio, 
Aliud.  salutem. Facite simul venire omnes illos qui terras tenent de dominico victu Ecclesiae de Heli, et volo ut Ecclesia eas habeat sicut habuit die qua Edwardus Rex fuit vivus et mortuus, et si aliquis dixerit quod inde de meo dono aliquid habeat Mandate in magnitudinem terrae et quomodo eam reclamat, et ego secundum quod audiero aut ei inde escambitionem reddam aut aliud faciam; facite etiam ut Abbas simeon habeat omnes confuetudines quae ad Abbatiam de Heli pertinent, sicut eas habebat Antecessor ejus tempore Regis Edwardi, Preterea facite ut Abbas seisitus sit de illis Theinlandis quae ad Abbatiam pertinebant die quo Rex Edwardus fuit mortuus, 
These had Lands which belonged to the Abbey, as appears in the Inquisition.  si illi qui eas habent secum concordare noluerint, et ad istud placitum summonete Willielmum de Guaregnna, et Richardum filium Gisleberti, et Hugonem de Monteforti, et Goffridum de Manna Villâ, et Radulfum de Belfo, et Herveum Bituricensem, et Hardewinum, de Escalers et alios quos Abbas vobis nominabit.  
Upon these Writs many useful things might be observed, but I will confine myself as nigh as I can to my purpose.  
From them as interpreted by equal authority of History it appears, that Wil the first used to commissionate several of his Barons. I will not oppose their being his great Tenants in Chief, these were to preside in the Trials of matters within ordinary Justice, which were to be tried in the several Counties where the question arose, sometimes in one County, sometimes in several together as the men of the several Counties, that is, the several Counties were united.  
Sometimes these great Men, sometimes the Sheriffs were to Summon the Parties, and to take care that an Inquest of the County or Counties concerned be impannell'd, in the Counties, that is, by the choice of the Freeholders.  
The King's Commissioners were to pronounce the Judgement in the King's Name or stead: So the Bishop of Constance did right to Lanfranc, 
Eadmerus Codex Roff. selden's spic. ad Edm. fo. 200.  '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 Judgement; to which the Primores & probi homines assented, for 'twas ex communi omnium astipulatione; 
Bracton fo. 1.  this agrees with what Bracton says of the Laws passed in the Great Council of the Nation. De Concilio & Consensu Magnatum & Reipublicae communi sponsione.  
But it may be objected that the King's Writ is to the Great Men to do Justice, to which the Books give an answer that the King's Writ does not change the Nature or Jurisdiction of a Court, and therefore though a Writ of Right or a Justities be directed to the Sheriff, 
Cook. 6. Rep. fo. 11. a. & b.  yet the Suitors in the County Court are Judges.  
And what their Jurisdiction was in the time of Wil the first, 
Gentleman's case.  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. 
Pl. Dom. R. apud Berwick super Tweedam de Octab. sanctae Tr. An. R. Ed. fill. R. H. 2ᵒ Coram Gilberto de Thornton Reog. Brabazon. & Rob. Malet. Just. ad pl, ejusdem Dom. R. tenend. assignat.   
Upon a Writ of Error to remove a Judgement out of the County Palatine of Chester into the King's Bench in a Plea of Land; The Chief Justice of Chester certifies that the Judicatores et Sectatores the Suitors at the County Court, clamant habere talem libertatem quod in tali casu debent omnes Barones & eorum Seneschal. ac Judicatores ejusdem Comitatus summoniri audituri hujusmodi processum & Recordum & illa antiquam sigilla sua apponant; si fuerit infra tertium Comitatum per seipsos emendare. Et hujusmodi libertates a tempore quo non exstat memoria usi sunt et gavisi.  
And the Chief Justice farther certifies, quòd fecit summoniri omnes Barones et Judicatores, accordingly.  
The Parties Assembled at the Council of Pinnedene, were the Primores et probi viri of the Counties concerned, which answer to the Proceres et fideles Regni, in the union of all the Counties in Parliament, as in the 42 of Henry 3. which in another Record of the same Parliament are branched out into hanz hommes e prodes hommes, 
Rot. Pat. 42. H. 3. m. 10. & m. 4.  there are the Primores et probi viri, e du commun de nostre Realm: that is, as the Statute of the Staple has it, the Prelates, Dukes, Earls, Barons, the Great Men of the Counties, Grands des County's as the French, 
Stat. staple 27 Ed. 3. An. 1353.  and the Commons of the Cities and Borroughs.  
The Testimony of Eadmerus concerning the Parties to the Judgement at Pinnedene confirms me in my opinion, that the Summons to a Great Council as I take it in this King's Reign, mentioned by Simon of Durham and Florentius Wygorniensis, 
Sym: Dunelm. f. 213. El. Wygorn. f. 641.  which was to all the Bishops, Abbots, Earls, Barons, Sheriffs, with their Knights, was not to them and those only who held of them by Knight's Service, 
Nec multo post (viz.) post Curiam mandavit ut Arch. Ep. Com. Bar. Vicecom. cum suis mi lit. sibi occurrerent, Saresberiae quo cum venissent milites illorum sibi fidel. contra omnes homines jurare coegit.  for more than such were Judges even for matters of ordinary Justice within the Counties, but that it was to them and the Sheriffs, Knights, the Freeholders of the Counties who were by St. Edward's Laws obliged to find Arms, and became Knights Milites as soon as by public Authority they took Arms; the ancient 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, 
Cowslli Ins. juris, Ang. de Libertinis Tit. 50. p. 11.  viz. Lanceam et Gladium et deinde liber homo efficitur.  
Thus he becomes a freeman and the Sheriff's Knights at the same time.  
That all Freeholders had the appellation of Milites, 
Inter Leges Wil 1. Cap. 65.  is evident by many Records, and even a Statute, 
Seldeni ad Ead. notae & spicel.  that for the choice of Coroners which was but declaratory of the common Law, as appears by several Records, 
Stat. West. 1.  before that time; I will instance in one.  
Because one that had been chosen Coroner, was neither a Knight or Freeman, as that interprets itself, nor yet discreet, therefore a new choice is directed, 
Rot. Claus. 38. Hen. 3.  Miles non est, et in servitio alieno, et juvenis et insufficiens et minus discretus.  
Here in Servitio alieno, a servant, is put in contradistinction to Miles, that is, to a Freeholder, or Liber tenens. Et here, has the like import with Sed, unless a man might have been a Knight, and yet no Freeman.  
The Freeholders of the County of Cornwall Fine to the King for leave to choose their Sheriff, 
Rot. Claus. H. 3. p. 1. m. 18. It appears by another Record that this Shrivalty was of fee in the Count according to the exception in the statute, which gives each County leave to choose.  'tis said in the Record.  
Milites de Com. Cornubiae finem fecerunt Rot. fin. 5ᵒ H. 3. pars 1 a. M, 9  
And these which are here called by the general denomination of Knights, are in another Record of the same specified under these names.  
Episcopus, Comites, Bar. Milites libere tenentes, et omnes alii de Com. so that all the people of the County, that is, they which were part of the County Court were comprehended under the word Milites.  
In another Record, the Milites et probi homines, 
Rot. claus. An. 11. H. 3.  that is, honest Freeholders are used as the same.  
In pleno Com. tuo dicas Militibus probis hominibus Ballivae tuae. etc. 
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.   
The Milites or probi homines were under the Sheriff, a 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 Freeholders' choice, not the Kings, having no certain Salary, 
2. Iust. f. 74.  nor Fee upon any account taken notice of in the eye of the Law; but depending upon what the King should give out of the two thirds of the Profits of the County, (the tertium denarium, the third part, the Earl o● Count had) who will imagine that the Sheriffs as Sheriffs, had any feud raised upon them by the King, that is, were to attend at his Courts or in his Wars, with their feudal Knights the posse Commitatus which was assisting to them, being of quite another nature?  
Indeed I find one Fulcherus, 
〈…〉  homo Vicecomitis, that is, Tenant by Knight's Service, to which homage was incident, and in that sense Miles Vicecomitis; in another part, Tenet Rogerus de Picoto Vicecomite de foedo Regis hanc terram tenuit Gold. sub Abbate Eli potuit dare absque ejus licentiâ sine sacâ.  
This had been freehold within the Abbot's Precinct, alienable without licence, subject to no suit of Court, and was granted to Picot then Sheriff of the County to hold of the King's feud, that is, by Knight's 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 without consideration of their capacity as Barons, and their Knights; 'twas long after this, that the word Vicecomes was any thing more than the name of the Office here spoken of; 
Neither had we any of dignity although the Office in some places hath been hereditary from ancient time. until Hen. 6. Tit. of Hon. 1. Ed. p. 255. & 256.  an honorary Viscount was not then known, such indeed might at their creation have had feuds raised upon the Lands granted along with their Honours.  
There is this farther proof, that this was more than a Council of the King's 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, 
Sym. Dunelm. fo. 213.  the King gave Arms in his Court to the Great Men, and immediate Tenants, the common Freeholders received them in the County Court, either at coming to Age, or upon becoming free by Manumission; which '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 Villeinage became free.  
But though one were born free, yet I take it he was to receive a formal military Honour, have Arms delivered to him when he came to Age, and in the time of Hen. 1. 
Tit. of Hon. 1 Ed. p. 373.  'tis used as a sign that one was not of age when he sealed a Deed, and consequently 'twas not effectual because Militari baltheo nondum cinctus erat. 
Assisa de armis 27. Hen. 2.   
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, etc.  
And when he came of Age, tunc ea habeat, this was in Hen. 2. time, and then the public delivery of Arms to all Freemen might have been disused, 
Tit. Hon. 1 Ed. p. 306.  but anciently as Mr. Selden observes, the taking Arms by young men from public Authority was a kind of Knighthood.  
But soon after Will. the first had at his Court Knighted his Son Henry, he called this great Assembly of Barones, & Vicecomites cum suis Militibus, 
S. Dunelm.  his Curia was held at Whitsuntide; Nec multo post mandavit ut Arch. Ep Abb. Com. Bar. Vicecomites cum suis Militibus die Kal. Aug. sibi occurrerent Saresberiae, quocum venissent Milites illorum sibi fidelitatem contra omnes homines jur are coegit.  
Here I take it Milites illorum refers to the Knights of the Sheriffs, 
Lamb. Archaionom. Leges Ed. f. 146.  that is, the Freeholders, this was adunatio conciliorum, a joining together of the several Councils of the Counties, 
Omnes proceres & milites & liberi homines universitotius regni Britanniae facere debent in pleno folemote fidelitatem Dom. Regi coram Episcopis regni.  where the swearing allegiance to the King was one of their Principal Works; the King's Tenants had done it of course in the Curia, but methinks 'tis a strange thing that it should be used for an Argument, that this was not a great Council of the Kingdom, because they were evocati● ad fidei vinculum. For satisfaction I will offer a Record of the same work done in Parliament in the time of Henry 3. 
This seems to be meant of a Court of all the Counties and then confirms my sense. in express terms.   
Celebrato nuper Concilio apud Bristol ubi convenerunt universi Ang. Praelati tam Ep. Ab. quam Primores et multi tam Comites quam Barones qui etiam univerfaliten fidelitatem nobis publicè facientes, concessis eis libertatibus & liberis consuetudinibus ab eis prius postulatis & ipsis approbatis. 
Claus. 1 H. 3. m 14. dorso.  etc. Here the King yields them those Liberties and Free-customs, which they desired, and they swear Allegiance to him, here was the fidei vinculum.  
But perhaps they will say that this of W. the first was no Common Council or Parliament, because it appears not that any Laws passed or that they were summoned 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 dissolved without any Act passed, 
Rolls. Rep.  'tis said by Judge Cook not to be a Parliament, but the Inception of a Parliament, that is, no Session: but whoever will consult the Summons to Parliament in the time of Ed. 1. & 2. may satisfy himself that there were many Parliaments called, 
Rot. Claus. 33. E. 1. m. 15. dor.  at which there were no Laws passed, 
Rot. Claus. 5. E. 2. m. 21. dor.  but merely Advice given, and yet at the end thereof, the Knights, Citizens and Burgesses had their Writs of Expenses, wherein the Kings declared that they had been called to Parliament, nobiscum de diversis negotiis nos & populum Regni specialiter tangentibus tractatur.  
For the last, 'tis no matter whether the cause of Summons were expressed, 'tis enough if it were de quibusdam arduis, or however else was the use of that time. Besides 'tis certain many Laws have passed in public Councils anciently of which we have no intimation from those Historians which mention such Councils.  
Wherever I find any public Act of recognising a King's 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 King's Reign chose to be Metropolitan of all England in such a Council; 'twas indeed in Curiâ Regis as Gervacius, and the Author of Antiquitates Britannicae show, but not the Ordinary Curia, for 'twas on our Lady-Day, 
Actus Pontif. Cant.  which was not the time of such Curia, 
Autore Gervatio Dor. f. 1653. Antiq.  and the Clerus and Populus Angliae more than the King's Tenants and Officers there confirmed the choice of the Seniores ejusdem Ecclesiae, 
Brit. f. 110. Relat. Wil primi ad finem tractat. de Gavelkind a sylâ Tay. Ed. p. 194.  that is, of Canterbury.  
In the fourth of this King the controversy between the Archbishop of York, and the Bishop of Worcester, was determined at Petreda before the King, Archbishop Lanfranc, the Bishops, Abbots, Earls, et Primatibus totius Angliae, this Mr. Selden rightly calls a Parliament, 
R. Hoveden fo. 453.  which is easily to be gathered from the large and comprehensive Signification of Primates.  
That General Summons the same year to have an account of the Laws, 
Fecit summoniri, etc. nobiles sapientes. etc. Electi igitur de sing. totius Patriae Comit. viri duodecim, etc. Lambert's Archionom. fo. 138.  looks as if it were to a Parliament, to which a representation of twelve for every Country was agreed on, but appears not to have been specially directed: be that as it will, there was no need of a full representative, or meeting in an entire Body, because it was not to lay any new obligation upon them, but was an Enquest of the several Counties to present their old Laws. 
Seld. spicil. f. 171.  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, 
An. 1083. 17 Will. 1.  Convocavit Rex multitudinem Nobilium Angliae, 
Geru. Dorob. Actus Pontif. f. 1653.  the multitude of the Nobles of England, says Gervace of Dover, 
Tota Angliae Nobititas in unum collecta, quasi sub numero non cadebat, Matt. Paris p. 255.  this was about Ecclesiastical Affairs, Concerning the bringing regular Monks into Monasteries, and an old Monk tells of the Charter or Law then agreed on. Haec charta confirmata est apud Westm. in concilio meo, Anno Regni mei XVIII. praesentibus omnibus Episcopis et Baronibus meis, 
Monachus Anongm.  where Barones mei must either be meant with relation to the whole Nobility of England, 
Ord. St. Bened. p 44.  which were all the King's men, though not his Feudal, especially immediate Tenants, before whom the Test of Charters used to be, as in Henry the Third's time, the Earls only subscribed at the request of the rest, or it might be only his Tenants in Chief, subscribing as was usual.  
In the Eighteenth the King impeaches his Brother Odo for his extortion, 
An. 1084. 18 Will. 1.  this was at the Isle of Wight; 
(i. e.) Curia Regis, Ord●ricus Vitalis fol. 647.  In Insulâ Vectâ ei obviavit, Ibi in mirum congregatis in aulâ Regali Primoribus Regni: this was matter of ordinary Justice, and though Primores Regni are named; yet it might have been only such of them as attended on his Wars, or in his Court; and 'tis not probable that being abroad, all the Primores Angliae were summoned to this.  
In the Nineteenth of his Reign, 
An. 1085. 19 Will. 1.  I take it that he held barely his Curia at Gloucester, for 'twas a Military Council, except that his Judges, Great Officers, and constant Attendants were part of it.  
Partem exercitus sui remisit, 
S. Dunelm. fol. 213.  partem secum per totam hyemem retinuit et in nativitate Domini Glavorniae Curiam suam tenuit, & at this Court I find only some Ecclesiastical Preferments disposed of to three of his Chaplains, which required no solemn Consult; but his Laws passed per Commune Concilium totius Regni, 
Spelm. Glos. 2▪ part. fol. 451. tit. Parl.  semel atque iterum ait se concessisse, etc. per Commune Concilium totius Regni, and his Leges Episcopales, Ecclesiastical Laws were established, 
Seldeni aut & spic. ad Eadmerum, fol. 168.  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 Parliament. 
An. 1087. Bromton, fol. 983.  He was crowned convocatis terrae magnatibus, says Bromton, volentibus animis Provincialium Malms. that is, 
Malmesb. fol. 120.  the whole Kingdom agreeing or the Major part; indeed it seems the Normans were for Duke Robert, but the English were not so wasted, as some imagine, 
S. Dunelm fol▪ 215.  but that they carried it, Angli tamen fideliter ei juvabant, as Simeon of Durham shows, 
Rog. Hoveden, fol. 461.  and Hoveden out of him.  
In the Second year of his Reign he held a Curia on Christmas at London, 
An. 1088.  but 'twas more than a Curia de more, for there were Justiciarii ac Principes totius Angliae. 
Bromton, fol. 983.   
In the Third, 
An. 1089. 3 Will. 2.  Turmas optimatum accivit & Guentoniae congregavit, he called together the Troops or Army of Nobles, Barones aloquitur, inveighs against his Brother Robert, and persuades them to a War, 
Order. Vital. fol. 680.  & ut consilium inirent quid sit agendum jussit, bids them consider or advise what was to be done. His dictis omnes assenssum dederunt, 
An. 1093. 7. Will. 2.  all consented to a War.  
The King being very ill, omnes totius Regni Principes coeunt, 
Eadmerus, fol. 16.  Episcopi, Abbates, & quique Nobiles, promittuntur omni populo bonae & sanctae leges; here the Princes and Nobles reach to omnis populus. Here Anselm is named Archbishop by the King, & concordi voce sequitur acclamatio omnium, the noise and public acclamation witnesss the people's consent, 
Gondulfus Roff. Ep. Monac. Bec. inter Anselm. Epist. lib. 3.  and this is said to be secundum totius Regni electionem, or as another Author.  
Rex Anglorum consilio & rogatu Principum suorum, Cleri quoque & populi petition● et electione.  
The King being upon leaving England, 
An. 1094. 8. Will. 2.  to settle his Affairs in Normandy, Ex praecepto Regis omnes ferè Episc. unà cum principibus Angl. ad Hastings convenerunt. Here Anselm pressed that there might be Generale Concilium Episcoporum, 
Eadmerus, fol. 24, & 25.  but went from the Curia, the Great Council, dissatisfied.  
Anselm had propounded a question to be discussed in Council.  
Utrum saluâ reverentiâ et obedientiâ sedis Apostolicae possit fidem terreno Regi servare anon? 
Eadmerus, fol. 26.   
Ex Regiâ sanctione fermè totius Regni Nobilitas quinto Id. 
An. 1095. 9 Will. 2.  Martii pro ventilatione istius causae in unum apud Rochingham coit.  
Fit itaque conventus omnium, 
Fol. 27.  This is called Curia, but could not be the Court of Tenants and Officers only.  
Anselm harangues the Assembly in medio Procerum et conglobatae multitudinis sedens. 
Fol. 28.  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, 
Fol. 29.  Miles Unus, a good honest Freeholder steps out of the throng, de multitudine prodiens, and with great devotion sets before his Holy Father the Example of Job's patience, upon this the Prelate hugged himself in the opinion that the populus, the Populacy were for him, though the Princes, the heads of the Assembly were against him.  
This Controversy is adjourned to the Curia, 
Fol. 31.  on Whitsuntide, which still was no ordinary one: Anselm was celebrating a Curia by himself, when he should have attended at the King's, according to the adjournment, but it seems he expected special Summons, which he has accordingly by word of mouth, no formal Writ, but Messenger. The King tenuit Curiam suam in ipsâ festivitate apud Windlesoram, and there were Proceres, 
Fol. 34.  et coadunata multitudo, a very Solemn Convention.  
The Authority cited by Sir Hen. Spelman says, that the Clergy was not at the Council at Roch. 
Spelman council. vol. 2. fol. 16.  in quo fermè totius regni nobilitas praeter Episcopos & Clerum convenitur; 
Jewelli Apcontra Hard. fol. 455.  so that it would seem a Precedent for that Parliament, in the time of Edward the First, taken notice of by Bishop Jewel, of which he says our public Monuments, that is, Records have it.  
Ha●ito Rex cum suis Baronibus Parliamento 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 Barones 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, 
Eadmerus, fol. 39  that placitum habitum est contra se, his pretences were over ruled, totius regni adunatione.  
Yet notwithstanding their sense then delivered, they gave a farther day till Whitsuntide; so that in effect 'twas Judgement 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. 
Eadmerus, fol. 34.   
This was a General Council on the Feast day, Adquievit Multitudo Omnis, unde cum omnes silentio pressi conticuissent, Statutum est. It seems till the Multitude rested satisfied, the Law could not pass.  
But two years after on Whitsuntide was held no more than the Ordinary Curia— 
An 1097. 10. Will. 2.   
Cum igitur in Pentecoste festivitatis gratiâ Regiae Curiae se presentasset: peractis igitur festivioribus diebus diversorum negotiorum causae in medium duci ex more coeperunt—  
That 'twas usual when the height of the feasting was over, to go to the Trials of Causes, or Matters of Ordinary Judicature. In August following is held a Great Council, the King being, de Statu Regni acturus.  
Then he sends out a General Summons.  
In sequenti autem mense Augusto cum de Statu Regni acturus Rex, 
Eadmerus, fol. 38.  Episcopos, Abbates & quosque Regni Proceres in unum praecepti sui sanctione egisset, & dispositis his quae adunationis illius causae fuerant; etc. 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 acclamantibus; 
Eadmerus, fol. 38.  the sense of the Assembly was, that Anselm should observe the King's Laws; upon which he departs the Realm in a pet.  
'Twas pity Eadmerus went with him, so that we lose 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 Croylandenses Caenobitae sub Tempore Willielmi Secundi. 
Spelman Glos. 2. part. tit. Par.   
For farther proof 'tis observable, that this King stood upon it, that Malcolm King of Scots, 
Sim. Dunelm. fol. 218.  Secundum Judicium tantum Baronum suorum in Curiâ suâ Rectitudinem ei faceret. 
An. 1093.   
That is was to do him right, or answer his demands, according to the Judgement 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 Judgement of a Great or General Council of both Kingdoms united, and who were the Primores that constituted the Great Council of Scotland, even till the 23. of James the First, is evident by his Act of Alteration, or recommendation of a Change, 
Titles of Honour.  which has it, that the small Barons, and Fee-Tenants (or Freeholders) need not to come to Parliaments, 
1. Ed. P. 287.  nor General Councils, without Election, which shows that till than 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, 
Rad. de Diceto. fol. 492.  the Author says only Celebravit Concilium, and this, I take it, 
Christmas Court.  was no more than an Ordinary Curia, especially it being Octabis Epiphaniae; And there was a Legal Trial by Duel, and by Judgement of the Court, the Party conquered had his eyes pulled 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. 
Huntingdon fol. 578.  Cum gloriosè & patrio honore Curiam tenuisset ad Natale apud Gloucester, ad Pascha apud Winchester, ad Pentecosten apud Londoniam.  
By the foregoing Instances, we may see, notwithstanding Polydore Virgil's suppressing, 
Note, he lived but in the time of Henry the Eighth.  as much as in him lay, the MSs. which might take from the Authority of his History, how many rise up in Judgement against 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, 
Lambert's Archaion, pag. 26●, 263.  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 MSs. which since have offered their Light to the World; otherwise he would not have subscribed to the foregoing opinion of Polydore Virgil, 
Pag. 237.  however Polydore himself, as far as his Authority goeth, gives us to believe the frequency of such Solemn 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 mutual confidence in each other, that 'tis a question whether he ever held a Solitary Curia of Tenants and Officers, only we find, 
Eadmerus, fol. 49.  Tota Nobilitas cum populi numerositate, cuncti Majores adunati, 
fol. 94. & 105.  and Regnum Angliae. All at several times at the Curia de More.  
At other times we have Commune Concilium Gentis Anglorum, 
Matt. Paris, Ed. Tig. fol. 54.  Clerus & populus congregatus, the same called Commune Concilium Baronum Regni Angliae. 
Mat. Par. f. 52, & 53.   
Regni Nobilitas sua Sanctione adunatâ, 
Florentius Wigorn. An. 1129.   
Concilium Magnum—  
Magnum placitum apud Northamtune congregatis, 
An. 1131.  Omnibus Principibus Angliae, 
32 Hen. 1.  that is, 
Huntingdon fol. 384.  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 consisted of more than Tenants in Capite and great Officers. 
1 Stephani An. 1135.  King Stephen was elected King, 
Rich. Hagustal. p. 312.  a Primoribus regni cum favore Cleri & Populi, 
Joh. Hagust. f. 258.  Clericorum & Laicorum universitate, ab omnibus. viz. tam Presul. quam Com. & Baron. 
Mat. Par. f. 71.   
Stephanus his et aliis modis in Regno Angliae confirmatus, 
Rich. Hagust. f. 314.  Episcopos et Proceres sui regni regali edicto in unum convenire praecipit, cum quibus hoc Generale Conciliam celebravit.  
This to be sure was more than the Ordinary Curia: The eighth of July two years after a Council was held at Oxford, 
An. 1138. 3. Step.  which broke not up till September following, this was Conventus Magnatum, was not on the ordinary Court day, 
Malmsbury f. 181, & 183.  yet perhaps was not a Great General Council: It was only for matter of ordinary Justice; some of the Laity had complained 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 Catholic Interpretation of St. Peter's, ecce Duo Gladii.  
It seems the Bishop's Plea was, that this was no Ecclesiastical Synod, that is, in the true sense, not Assembled for Ecclesiastical, but for Civil Matters; but in their sense, that they would be tried 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 Pope's Legate, thought themselves a body sufficiently entire, without that other part of the Clerus, God's Inheritance, which used to make up eventhese Assemblies; with much ado, they first let in the Nobility Proprietors of Land, 
Malmsbury hist. Nou. 2. p. 188. 189.  Omnes Barones in eorum communionem jamdudum recepti.  
They had not sat four days but the Londoners-Citizens demanded to be admitted amongst them as Citizens or Traders, 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. 
Stat. of Merton. cap. 6. 1 Inst. f. 80.  And this our constitution agreed with that of Poland, where Mercator and Nobilis were always contradistinct, and there is a remarkable Clause in one of their Statutes. 
Statuta Regni Polonici.  Nobiles appellandos censemus, qui licèt matre Populari, patre tamen Nobili sunt procreati, quorum tamen parents & ipsimet vivant & vixerint ad instar aliorum Nobilium in regno ut supra; & non exercuerint vel exerceant eas arts & actiones quas communiter cives & qui in civitatibus morantur exercere solent; per contrarium enim usum nobilitas ipsa in popularem, & plebeiam conditionem transire solet, and with them the Inhabitants of Cities which were sicut Proceres sent Deputies, whereas the Possessionatis the Nobles came to the Great Councils in person.  
There came to the Council abovenamed a Representative in the name of the whole City of London. Feriâ quartâ venerunt Londinenses, & in Concilium introducti causam suam eatenus egerunt, ut dicerent missos se a communione quam vocant Londiniarum, but the Clergy carried it with an high hand, and told them, that it became not them who were principal men in the Kingdom and sicut Proceres, as it were Nobles, to favour them who forsook their Lord, which I think was meant of the Pope, and his Clergy: to be sure they excommunicated the King, and those that held with him, for meddling in their matters: but they had much ado to quiet the City of London for the haughty Answer they gave them.  
They that were at this Assembly came not as the King's Tenants, or because of any Office in his Court. Notwithstanding all the Canonical Thunder, at a great Council possibly of Laymen only, Habito post modum Concilio coram Primoribus Angliae, statutum est ut omnia per Angliam, Oppida, Castilia, Munitiones quaequae, 
Continua. ad Floren. Wig. f. 671.  in quibus secularia solent exerceri negotia Regis & Baronum suorum juri cedant.  
Whereby all the strong holds which Clergymen had were subjected to the Dominion of the Laity, whether only the King's Barons, Barones Curiae suae were to be Judges in the disposal is needless to determine.  
But Statutum est coram Primoribus Angliae, This was made a Law by all the Baronage of England.  
We have several other Councils in this King's Reign.  
In the seventh of his Reign, there is an Act of Recognising Matilda the Empress her Title to the Crown by all but the men of Kent, 
An. 1141. 7 Step.  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 mere Election.  
Maltida Imperatrix ab omni gente Anglorum suscipitur in Dom. exceptis Kentensibus. 
H. Hunt f. 392.  
An. 1143.  
Neubergensis p. 37.   
In the ninth the Proceres are Summoned per Edictum Regium to St. Alban. 
Radulphi Polycron.   
The same year is a great Council at Northampton called Parliamentum. 
1152. 17. Stephani Ger. Dorober. f. 1379.   
In the seventeenth, Generale Concilium convocavit at London, to which were called the Bishops and all the Proceres. 
An. 1154.   
In the ninteenth and last of his Reign, 
H. Hunt f. 398. 19 Step.  all the Principes met at Oxford ad octavis Epiphaniae, and soon after the Colloquium at Oxford they met at Dunstaple. 
Neu●ergensis lib. 1. c. 32.   
And he held another great Council the same year at London on Michaelmas tam pro negotio Regni quam provisione Eccles. Ebor. 
Brompton f. 1040.   
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, 
Henr. 2.  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, 
11 Hen. 2.  to vindicate the Crown and Kingdom of England from the usurpations of the Clergy, 
An. 1164.  who insisted upon Exemptions, 
Vid Still. answer to Cressy 's Apol. à p. 377. usque ad finem.  and an uncontrollable licence to do ill upon pretence of the sacredness of their persons. Whereas the King would allow them no other privileges, or exemptions, than what his laws had given them.  
This Council was composed of more than tenants in chief, 
Titles of Honour, fol. 582. M. P. fol. 96.  'tis called a Great, and full Parliament; Generale concilium; the parties present are under divers denominations, 
Ma. West. fol. 248.  all coming to the same: Rex, Arch. Ep. Ab. Pr. Com. Bar. & Proceres Regni, 
Gervasius Dor. fol. 1385.  as M. Paris, Rex & Magnates regni, Mat. West. Anglicani regni praesules & Proceres, 
Imag. Hist. fo. 536.  Gervasius; 
Antiq. Brit. in vitâ Tho. Becket fo. 133.  Episcopi, & proceres, Radulphus de Diceto.  
Praelati, proceres & Populus regni, as another, 
Hoveden fo. 493.  Clerus & populus regni, Hoveden.  
The whole Kingdom as Dr. Stillingfleet shows us out of the Quadripartite History. 
Answer to Cressy's Apol. p. 392.   
The body of the Realm as Sr. Roger Twisden terms it; 
11 Article Conc. Clar.  Yet I conceive that the clause so much tossed to and fro, without any right settlement, refers to the ordinary Curia Regis, to which the King's Tenants were bound by their tenure to come; and where ordinary justice or jurisdiction in all, or most causes was exercised, and this gives some account why the Bishops who have been from the Normans acquisition downwards tenants in chief, because of their temporalties, 
Grand quest. p. 152.  and during vacancies the Guardians of those temporalties, upon that very account have been particularly summoned, why I say they should be allowed to vote in a legislative capacity which they have as Proprietors, though no tenants of the King, when they proceed by way of bill of attainder, and yet tenure only qualifying them for Judges in Parliament (as before in the King's ordinary Curia, interest judiciis Curiae, or at least they succeeding to the jurisdiction of the Tenants in the Curia) according to the constitution of Clarend. that jurisdiction which they have as tenants, or as succedaneous to such, extends not to matters of blood. It will not be proved, that the coming to the Great Council, where the extraordinary power, justice, or legislature was exercised, was merely because of tenure, and that no body had right to be of the great Council but they that held in capite, or were members of the ordinary Curia; indeed when that was taken away, or disused, 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, 
8 Ed. 2.  and therefore in the 8th of Ed. 2. the Inhabitants of St. Alban 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 merely because of tenure appears from the words of the constitution:  
Arch. Ep. etc. & universi personae regni qui de Rege tenent in capite, 
Qui habent personatum.  habent possessiones suas de Domino Rege sicut Baroniam, etc. & sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus, 
Ger. Dorob. fo. 1387.  etc.  
That is, except as is there excepted, these ecclesiastical tenants or Barons were to be present, 
Cum Baronibus suis, Seldens Jan. Angl. facies altera, p. 9●  or interested in the Judgements together with the King's Justices and Officers, as the other Barons, that is Lay-tenants in Capite. It seems both ecclesiastics and Lay-tenants in Capite held per Baroniam, yet I think caeteri Barones aught to be confined to them that held of the King in Chief by Knight's service, for many held in feodo firmâ by the payment of a certain rent, or petty Serjeanty, the payment of a gilt spur or the like, pro omni servitio, of which the Records are full, who were not ordinarily to give their attendance at the Curia. But tenure per Baroniam, was I take it in those times no more than tenure by Knight's Service in Capite. This perhaps I could prove by many records. I shall instance in one to the honour of a Noble Peer of this Realm, now Earl late Baron of Berkley, as his Ancestors have been ever since the time of Hen. 2.  
One of his Ancestors had the grant of the Manor of Berkley Harness from Hen. 2. 
Com. de Term.  Tenendum in feodo & haereditate sibi & haeredibus suis per servitium Quinque Militum. 
Pasch. 4 Ed. 3. penes Rem. Dom. Thes. in scac.  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 aliened; inde, upon the account of the Barony, or rather the land, was the Knight's Service, and the Knight's service made the Barony, as appears, there being no particular words creating any honourable tenure, but what resulted from serving the King with men upon his own charges: the number I take it made nothing towards the nature of the tenure. These tenants by Knight's service, the King's Barons, were obliged to be at the King's Courts the 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 King's Court, and consequently the ordinary Court, 
Jani Anglorum facies altera, p. 100  old _____ of Gloucester is express. Yuf a man of holi-Church hath ein lay fee, Parson, otherwhat he be, he shall do therevore King's Service, that there valth, that is right ne be vorlore. In plaiding, and in Assize be; and in judgement also. But this farther appears by the summons to, and proceedings at Northampton the very next year.  
This Hoveden calls Curia Regis, 
Hoveden, fo. 494.  and Mr. Selden informs us out of an ancient Author, that the summons thither was only to the members of the ordinary Curia, 
Tit. of Honour, fo. 583.  Omnes qui de Rege tenebant in Capite, mandari fecit: upon the Bishop's withdrawing from the judging of Becket, (the ground of which I shall soon examine.)  
Quidam Vicecomites & Barones secundae dignitatis were added, 
Evocantur quidam Vicecomites & secundae dignitatis Barones, antiqui dierum, ut addantur tis & assint judicio, Stephan. MS.  'twas quidam Vicecomites some Sheriffs, it could not be all because several were Majores Barones, having the counties 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 Manors of others, not the King; still here were more than tenants in Chief, and to be sure, these being said to be added, were more than the members of the ordinary Curia, and this Court to which they were added was only the ordinary Court of Justice. If we can show when this ordinary Court of Justice determined, and who succeeded into the places of the ordinary members of it, we may go farther to clear the matter in question than perhaps has yet been done. If the Lords the great men, succeeded the Court of Tenants, and were let into that jurisdiction which they exercised, and there is no colour of proof that Clergymen in the Curia Regis ever voted in Capital causes, but if on the other side, (the prohibitions running against judicia sanguinis, and the constitution of Clarendon referring to the Curia Regis, where the ordinary judicia sanguinis were agitated and pronounced) justly, they took themselves to be excluded the Curia, quando de illis materiis agitur; It will I think be evident that the Bishops, as a part of the house of Lords, answering to the Court of the King's tenants, never had any right to vote in Capital cases.  
But it lies upon me here to show when and how the Curia Regis went off.  
I have before observed that the duty of Tenants was either to attend the King in his Wars, in his administration of ordinary justice, or as a Council to give him aid in lieu of, or by way of advance upon their personal services in the Wars.  
As they attended in the Wars they could not be a Court or Council, and so no Curia Regis.  
As a Court of justice, their attendance was superseded by Magna Charta, 2, or 9 of Hen. 3.  
Communia placita non sequantur Curiam nostram sed teneantur in aliquo loco certo. 
Magna Charta, cap. 11.   
Hereby the administration of justice was taken from the ordinary Curia, 
This explained by Articuli super chart.  and fixed at the Courts in Westminster-hall.  
Yet after this they continued a Court, or Council for aids till the 34th of Edw. the first, 
Stat. 34 Ed. 1. De tallagio non concedendo.  and by that they were wholly gone as a separate Court, or Council; being from that time no tax nor aid could be raised without full consent of the great Council, or Parliament.  
When this Court was gone, as before I observed, we find Tenants in chief pleading that their coming to the Great Court or Parliament was pro omni servitio, which shows 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, turned to a privilege or right in them who succeeded to the dignity, though not the services of Tenants.  
As the Tenants were obliged by their Tenure interest judiciis Curiae Regis, they that succeeded to their dignity had right to be Judges in Parliament. And whereas the Curia Regis, as a Court of Justice was taken away or defeated in the time of Hen. 3. we find by Britton, supposed to have wrote in the fifth of his immediate successor, that the Barons were Judges in Parliament, as the Tenants and Officers had been in the Curia Regis.  
Et en case ou nous sums party volons que nostre Court soit judge sicome Counts & Barons en temps de Parliament. 
Britton p. 41. The King's Bench.   
Now let us return to the constitution of Clarendon.  
The tenants whose duty it exacts (the Lay Tenants disputed not) were Tenants by Barony; 
Debent interest Judic. Curiae Regis, etc. usque perveniatur in judicio.  that is, by Knight's Service of the person, or Crown of the King, and except as there is excepted, were of duty to be present at all Trials or Judgements, or to exercise Jurisdiction in all causes: 
Geru. Dorob. & vat. cop. quousque perveniatur ad diminutionem membrorum vel ad mortem.  but judicium vitae vel membrorum they were not to meddle with; when they came in judicio, in jurisdiction, or the trial of causes, ad judicium vitae vel membrorum, that is to such a cause, or the exercise of such a jurisdiction, 
Ma. Par. & others.  or such a trial, they were to withdraw; and this is the plain sense of judicium vitae vel membrorum, 
This the Author of the Grand Question follows as most authentic.  given us by that Great Judge learned both in the Common and Civil Laws, Bracton, who wrote in the Reign of Hen. 3. Grandson to this King, who enforced the leges avitas, in this particular, and others contained in the Constitution of Clarendon.  
This Great Lawyer, 
Bracton lib. 2. cap. 24. p. 56.  having enumerated several privileges, or jurisdictions, granted from Kings of England to their subjects, amongst other things has these words.  
Item si cui concedatur talis libertas quod habeat soak, & sake, toll, & them, Infangthef; & utfangthef, Judicium vitae & membrorum, & furcas, & alia quae pertinent ad executionem judicii, etc.  
Here this Judicium vitae & membrorum must be meant of the whole trial, or jurisdiction, otherwise it is supposed, that he tells us, the King granted those men Liberty to pronounce, or depute those that should pronounce, the final Judgement, who yet neither by themselves, nor Deputies, had any thing to do with the praeliminaries, the questions arising between, and leading to the Justice of the Judgement, which is an absurd supposal.  
The having Judicium, or power in judicio, does not, as I conceive, any way suppose a trial already begun, 
Grand Question, p. 34.  and the Bishops present so far in it; but when it comes to the point of mutilation or death, than 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 trial, 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 Lawmakers, especially, when we find the words of the law, according to the sense put upon those words, by the most learned, in the age nighest to them that transmit the law to us, are not to be brought to such a dividing sense without a great deal of force: And to this the several other copies of this constitution give weight. 
Grand quest. p. 34.  But we are told that the sense is best understood by the practice of that age. If the sense be plain, a contrary practice is not to determine the sense another way, as, as great an Author, the learned Doctor Stillingfleet, proves at large in his answer to Mr. Cressy's Epistle Apologetical, 
Still. answer to Cressy, à p. 339. ad p. 447. p. 449.  where he shows the number of Statutes made against Provisors, in express terms: And yet when the King of England comes to settle the points in difference, between him and Pope Martin the 5. there is no manner of regard had to the Statutes of Provisors, although so often repeated; nor did common practice agree with the positive and plain law.  
But the testimony of Petrus Blesensis brought to prove the practice in the time of Hen. 2. I could set aside with better colour, than the Author of the Grand question does the true sense of judicium and in judicio.  
For Petrus Blesensis joins together the Principes Sacerdotum and Seniores Populi, the last of which, in common acceptation, relates to the Laity; and for their withdrawing just at the final judgement, surely there could be no pretence from the practice of that age. But let's take his authority, 
Grand quest. p. 34.  and make the best of it. Principes Sacerdotum & seniores populi licet non dictent judicia sanguinis, eadem tamen tractant disputando & disceptando de illis: ideo seque immunes à culpâ reputant, quod mortis aut truncationis membrorum judicium decernentes, à pronunciatione duntaxat, & executione poenalis sententiaese absentent.  
Here he expressly confirms the sense, which I shall enforce, and makes the votings in the preliminaries, mortis aut truncationis membrorum judicium decernere.  
Some Clergymen it seems did thus decernere 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 show the meaning of the constitution of Clarendon, which speaks only of the Curia Regis; this has no colour of a proof, because they might have handled such matters in their own Courts, where the King gave them judicium vitae & membrorum, as Bracton has shown us; but that they did not in the Curia Regis, we are to believe, till express authority be brought to show 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 show, and will usher it in with the judgement of Mr. Selden, who was best acquainted with the several copies of this constitution, and with those laws which were the ground of it, perhaps of any man since the making the constitution. 
Titles of Honour, fo. 582.  The meaning of it is, says he, that all Bishops, Abbots, Priors, and the like, that held in Chief of the King had their possessions as Baronies, and were accordingly to do all services, and to sit in judgement with the rest of the Barons in all cases, saving cases of blood.  
The exceptions of cases of blood proceeded from the Canon Laws which prohibited Clergymen to assent to such judgements. 
So of Glocest. Bote war man shall be belemed other to death ido. Jani Anglorum facies altera, p. 100   
But we are told, that Hen. 2. in the Parliament at Northampton declared, that Bishops were bound by virtue of the Constitution of Clarendon to be present, and to give their Votes in cases of Treason.  
That this was only a Curia Regis, 
Grand quest. p. 40.  no Parliament, I have shown.  
That it should be affirmed that the King then pressed 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 pressed 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, 
P. 28.  and the King at Clarendon, out of regard and reverence to the Canons of the Church, required only that they should act in such causes, till the cause was ripe for sentence, not that they should stay at the Sentence: that point he was content to yield them; and he himself shows us out of Fitz-Stephen, that the Bishops looked not on the matter as Capital, for they did not urge the Canons in the case; but they excused themselves upon the account of the Arch-Bishops prohibition. 
Grand quest. p. 40.   
And the King replied, that (viz. that Prohibition) had no force against the Constitution of Clarendon, 
Ejus simplex Prohibitio. Steph. MS.  which was in effect to say, you have no manner of pretence, no Canon forbidding you to pass judgement upon Becket, and therefore according to the Constitution of Clarendon, you ought interest 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 accused of a Capital matter, it being called Crimen laesae Majestatis.  
2. As if the crime he was accused of was appealing to Rome, 
Grand quest. p. 40.  and that such appeal was treason by the ancient Common law before any Statutes made.  
1. I will readily grant that in the language of that age Becket was accused or impeached of Crimen laesae Majestatis, but that all Crimina laesae Majestatis were then capital, Glanvile, who was Chief Justice in that King's reign, 
Glanvile de legibus lib. 1. c. 2.  denies. Crimen quod in legibus dicitur Crimen laesae Majestatis, ut de niece, vel seditione Personae Domini Regis vel regni vel exercitus, occultatio inventi thesauri fraudulosa, placita de pace Domini Regis infracta, etc. Hereby every breach of the King's Peace, was Crimen laesae Majestatis; every breach of the laws by Acts of injustice is a breach of his peace, contra pacem & Coronam; therefore Becket having denied justice to John the Marshal, and refusing to answer the King who charged him in account, especially standing in contempt of the King's Court, was guilty of this crime. Indeed Glanvile when he has named Homicide, malicious firings, and other crimes, adds Et siquae sunt similia; quae scilicet crimina ultimo puniuntur supplicio, aut membrorum truncatione. As if no crimes were within this name, but those which drew after them capital punishment, but that is certainly to be meant of such as are not there specified: that is, all such like crimes, provided they are capital in the punishment annexed by law, are Crimina laesae Majestatis, though neither homicide, nor firing, etc. nor any direct and open breach of the peace.  
'Tis evident that he confines not placita de pace infractâ to homicide and those that follow; 
Glanv. p. 2.  for he takes in assaults and batteries de verberibus, de plagis etiam. Which he says are tryable by the Sheriff in default of Mesn Lords, unless the Indictment be in the King's name.  
Nisi accusator adjiciat, de pace Domini Regis infractâ.  
But it appears from Fitz-Stephen, that Becket was not impeached for appealing to Rome, 
Stephanides. So Geru. Dorob. f. 1389.  even upon his second Impeachment, but pro ratiocinio Cancellariae reddendo; to which he pleads, that the King remitted him when he was made Archbishop, that he then was quietus & solutus ab omni Regis querelâ.  
But further, that he was called only to answer in the cause of John the Marshal, in which he complained that he had had hard measure, but for the last neque in causâ sum ratiocinii; neque aliquam habui ad eam citationem: still the King urges the Proceres to proceed to judgement against him, he finding them ready to comply with the King, appeals to Rome, and strictly enjoins all his suffragan Bishops and others not to meddle in the matter.  
Upon this, redeunt ad Regem Episcopi & in pace à judicando Archiepiscopo excusati à Baronibus seorsim sedent, nec minus à Comitibus & Baronibus suum exigit Rex judicium: evocantur quidam Vicecomites & Barones secundae dignitatis, etc.  
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 impeached 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 Pope's Power was Treason, 
Grand Question, p. 40.  by the ancient Common Law, before any Statutes were made; which I conceive he does not: The most which I find in him towards this point, 
Cook de Jure Regis Ecclesiastico. 5. Rep.  is of a Judgement in the 30th of Edw. the First, where 'tis resolved that a subjects bringing in a Bull of excommunication against another subject, and publishing it to the Lord Treasurer of England, was by the ancient Common Law of England Treason. Now this publishing a Bull of excommunication, and thereby assuming the exercise of justice without the King's authority, is certainly a much greater offence against the King's Crown and dignity, than barely the appeal: however either might have been Crimina laesae Majestatis, against the Crown and Royal dignity, and yet not capital, as Glanvile shows.  
But this is further observable that the King himself appealed to the Pope in this very controversy between him and Becket.  
Hâc igitur celebri celebratâ & acceleratâ appellatione misit Rex, 
Gervasius Dorob. f. 1400.  misit & Archiepiscopus nuntios ad Dominum Papam. 
Ex communi consilio, nos inquiunt, eum appellabimus coram Papâ, de facili convincetus, sine remedio deponetur, quae cum plurimum placerent Regi, exierunt omnes Ep. Geru. Dor. f. 1392.  And according to Greu. the Bishops appealed to the Pope against Becket, with the great approbation of the King.  
Wherefore the Article in the Constitution of Clarendon touching appeals, the first declaration that I find of the law in this point, comes not up to Beckets appeal.  
De appellationibus si emerserint ab Archidiacono, debent procedere ad Episcopum, ab Episcopo ad Archiepiscopum, Et si Archiepiscopus defuerit in justitiâ exhibendâ, 
Geru. Dor. f. 1387.  ad Dominum Regem est perveniendum postremò, ut praecepto ipsius in Curiâ Archiepiscopi controversia terminetur; ita quod non debet ulterius procedere absque assensu Domini Regis.  
This is of causes begun in ecclesiastical Courts, these were not to go further than the Archbishop's Court, that is, not to the Pope without the King's licence; now admit an appeal had been before the Pope with the King's licence, yet it might have been Crimen laesae Majestatis, to put the Pope's sentence in execution without new licence had: but where a matter lay not in these inferior 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 proved at least, that 'twas capital. I know not of any greater penalty than a Praemunire ever annexed 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 impeached 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, 
p. 35.  Becket was accused of Treason, and the Bishops sat together with other Barons, and because it did not come to a Sentence of death, after a great debate between the other Lords and Bishops about pronouncing the sentence, the Bishop of Winchester did it: here he jumbles together, what in another place he rightly divides, he takes it right that there were Two causes, the one that of John the Marshal, the other that which he would make capital; in the first, the Bishops did certainly sit in judgement, there the Bishop of Winch. pronounced the sentence; as Mr. Selden (who this Author confesses has printed the proceedings of this judgement very exactly) shows out of Stephanides: 
Grand Question, p. 38.  for this our Author does not pretend that Becket was accused of Treason, and yet he says that the Bishop of Winch. gave sentence, where he was accused of Treason; nay, though his own Author Stephanides is express, that upon the second charge, which contained the supposed capital matter, the Bishops withdrew, & quidam Vicecomites & Barones secundae dignitatis were taken into the Court.  
Thus I think I have shown that the King did not declare at Northampton, that the Bishops were bound by virtue of the Constitution of Clarendon to be present and to give their votes in cases of Treason, (as such were capital) but rather it not being a Capital case upon which the King demanded judgement, that therefore the Bishops were by that Constitution obliged to be there.  
Admitting that this constitution is no law prohibiting Clergymen to Vote in Capitals, only obliging them to the duty of their tenure; and leaving them to act in matters of blood, according as they thought themselves bound by the Canons: Yet I think herein it appears that those Canons were received by the temporalty, and so became laws.  
But not to insist upon this, the question here is,  
1. First, What the Canon law prohibited.  
2. What force that prohibition has at this day.  
1. The Author of the Grand Question has I conceive misrepresented the sense of Lanfranc's Canon concerning this matter, which he has rendered thus:  
That no Bishop or Clergyman should condemn a man to death, 
Grand Question, p. 27.  or give vote in the sentence of condemnation. Here he confines the prohibition to the final judgement only; and yet says, Lanfranc had brought the Canon of the Eleventh Council of Toledo into England: So that Lanfranc's and that of Toledo he yields must speak the same thing; That of Toledo, is this:  
His à quibus Domini Sacramenta tractanda sunt, 
Concil. Toletan. 11. cap. 6. Edit. Madr. f. 553.  judicium sanguinis agitare non licet; & ideo magnopere talium excessibus prohibendum est, nequi praesumptionis motibus agitati aut quod morte plectandum est sententiâ propriâ judicari praesumant, aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas praecipiant.  
His à quibus Domini sacramenta tractanda sunt, undeniably reaches to Bishops, as well as inferior Clergy, and so removes the cavil which many make upon some Canons, or Laws, mentioning Clerk, or Clerus only.  
Here 'tis laid down for a principle, non debent agitare judicia, they must not to debate upon such judgements, or try such causes, that is as Petrus Blesensis expresses it, 
〈…〉  eadem tractare disputando & disceptando de 〈◊〉.  
Now can we think the wise Council of Toledo understood sense so little to declare, that Clergymen 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 & membrorum, as we find in Linwood, they might delegate authority to others to judge, without breach at least of after Canons. But this of Toledo I conceive wholly shuts them out from the cause, or trial of it. And according to this very Author, this Canon of Toledo is to be taken as explanatory of Lanfranc's, which is much shorter, and less express; yet comes to the same, in the signification of the words, as well as in the intention of the Council, 
Grand Question, p. 27.  which received the abovecited Canon of Toledo.  
Lanfranc's we have in these words,  
Iterum ut nullus Episcopus vel Abbas, 
Spelman 's Concil. 2 vol. f. 11.  seu quilibet ex Clero hominem occidendum, vel membris truncandis judicet, vel judicantibus suae autoritatis favorem accommodet.  
This speaks of the man guilty of a crime worthy of death, or loss of member, the other of the cause, or matter; which are tantamount: but by this they were not to judge themselves; nor sit by, while others judge, or any way contribute to the Judgement. But of this the great Council at Westminster in the year 1175. is the best Interpreter. 
An. 1175.  And if the Clergymen neither before the constitution of Clarendon, 
22 Hen. 2.  nor by it, were excluded from meddling in these causes; they are by the last in full Parliament, the testimony of which is transmitted by us by no less an Author than Gervase of Dover, who lived in the very time, and whose credit this learned Person supports by following him rather than Matthew Paris. 
Pa. 30.   
In hoc concilio, 
Ann. 1175.  he tells us, 
22 H. 2.  ad emendationem Anglicanae Ecclesiae assensu Domini Regis & primorum omnium Regni haec subscripta promulgata sunt Capitula: 
Geru. Dor. f. 1429.  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 truncationes faciant aut inferendas judicent, etc. this is almost the same in words with that of Toledo, and by the concession of the Learned Author of the Gr. Question that of Toledo was then produced by Richard Archbishop of Canterbury: 
Grand Question, p. 42.  the same we find in Hoveden, 
Hoveden, f. 543.  said in the Margin to be ex concilio Toletano. Judicium sanguinis agitare non licet, surely comes up to the preliminaries, and I cannot understand the coherence of saying to this effect.  
It is a received Maxim that Clergymen ought not so much as to vote in preliminaries, relating to capital cases; and therefore to give the final Judgement is only unlawful by the Canon, which declares that to vote, even in preliminaries, is unlawful.  
In Richard the second's time, the Bishops understood not this nice reasoning, and therefore they enter their formal Protestation on Record.  
Agitur de nonnullis Materiis, that is Capital causes, in 
Grand Quest. p. 46.  quibus non licet nobis aut alicui eorum juxta Sacrorum canonum Instituta quomodolibet personaliter interest.  
'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 Ordinary Judgements, such as were agitated in the King's Ordinary Court of Justice, and the constitution of Clarendon referring only to that Court, it appears that these Constitutions were received in Parliament in the Reign of Edw. the first.  
When the King tied up his hands from giving Clergymen Power, even so much as by his special Commissions, to sit upon the trials of such causes. 
28 Ed. 1. cap. 3.  We for the Utility 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, incontinent after the Assizes taken in the Shires, shall remain both together if they be Lay. And if one of them be a Clerk, than one of the most discreet Knights of the Shire being Associate to him that is a Layman, by our Writ shall deliver the Gaoles of the Shires.  
Hereby it appears that if one of the Judges were a Clergyman, he was not so much as to sit with the other upon the delivery of the Gaol; that is the trial of capital Causes; but another Layman should be commissioned for that purpose. And agreeable to this we find in the Records of the Tower, that when two have been Commissioned as Judges for the same Circuit, whereof one has been a Clergyman the other Lay, the Clergyman 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 purporting as if Pleas had been held before two whereof one happened to be a Clerk; for it is to be taken reddendo singula singulis.  
(2.) This were enough to settle the 2d point, viz. of what force such prohibition, as I have shown, 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 Ecclesiastical 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 managed there according to the different matters; if Ecclesiastical Affairs, 'twas a Synod, 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 Ecclesiastical Synods, 
Jewel contra Ward, p. 518.  which he calls concilia Episcopalia: 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 supposed to lay a more immediate Obligation upon the conscience, and were for the most part enforced by Ecclesiastical censures, they were called Canons or Rules, not having that outward coercion and penalties annexed which others had, but yet they were no less Laws.  
The Statute of Henry the 8th. which provides That no Canons, 
25 Hen. 8. cap 19  Constitutions or Ordinance shall be made or put in Execution within this Realm, by Authority of the Convocation 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 abovementioned 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 show something of the nature of the Ecclesiastical Councils according to the Modus established anciently in Engl. I must confess that several Historians, when they mention concilium totius Angliae, speaking of an Ecclesiastical Council, add frequently, Episcoporum, viz. & Abbatum, nec non & multarum religiosi ordinis personarum, 
Ex Cod. MS. in Bib. Cot. sub Effigy Domitiani, A. 5. n. 2.  or to that effect. But Bishop Jewel has well Interpreted such Expressions, and therefore we need not wonder, when we find another say, 
Spelm.  Lanfrancus Cant. Arch. & totius Angliae Primas diversa in diversis locis Angliae celebravit concilia. 
Conc. v. 2. f. 3.   
Though to be sure the King were sometimes 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 says, 
Malmesburiensis, f. 118.  quaesivit à senioribus Episcopis qui esset ordo sedendi in concilio Antiquo more statutus, etc.  
By their ancient Modus, I say, it appears that the Laity were to be present in their Ecclesiastical Councils; for when it mentions the Clergy in order it adds,  
Exinde introducantur Laici bonae conversationis, that is probi homines, vel qui electione conjugali interesse meruerint, every Layman of good conversation, 
Spelm.  probus homo, 
Conc. vol. 2. f. 1.  or freeholder in his own Person, or ex electione conjugali by Joint-Election of the Clergy and Laity. 
Ex pervetusto MS. Cod. in bibls. Cot. sub effigy Cleopatra. c. 8. f. 35.   
It would be superfluous to produce the many Authorities, which show that the Laity used to be of Council in Ecclesiastical affairs, as well as the Clergy in Temporal, and to give their Assent in making Canons or Laws.  
I will instance in some very remarkable ones out of many;  
One Eadmerus recommends with a solemn protestation, 
Eadmer.  En ordinem gestae rei teste conscientiae meae veritate, 
Hist. Nou. f. 58.  sicut eam praesens audivi & vidi, in nullam partem declinando descripsi.  
Matilda Daughter of Malcolm King of Scots married to Henry the first, being reputed a Nun, offers herself to be tried by the Ecclesiastical Law, 
Eadmer. f. 57  Offert se Judicio totius Anglorum ecclesiae probaturam.  
In another place,  
Obtulit se vel sacramento vel alia quam magis eligerint ecclesiasticâ Lege probaturam, 
f. 58.  etc. At the day appointed there Assembled Episcopi, Abbates, Nobiles quique ac Religiosi ordinis viri: the case appeared to be that she had taken upon her a Nun's habit, but had never been professed; whereupon Anselm having stated her case to the tota Regni nobilitas populusque minor, the Nobility and Commonalty, and in the name of God required them, Quatenus siquis aliter de negotio illo sentiret ac sententia tulerat (unde scilicet ipsam copulam secundum Legem Christianam fieri non debere posset ostendi) nihil haesitans saluâ pace omnium coram proferret.  
Here any man there had free leave to offer wherein he thought that marriage void by the Christian Law, or Law of Holy Church: but cunctis unà clamantibus rem justè definitam, legitimè conjuncti sunt. Had not this been to vindicate Anselm, 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 shows very particularly how those great Councils Acted, that 'twas in an entire Body; the Assent was, cunctis unà clamantibus. If any thing was offered, or pronounced in a Definitive Way, which was generally disliked, fremitu aspernabatur, as we are elsewhere told of such Assemblies. If the Council was divided, diversis diversae parti acclamantibus, they were forced to Adjourn or break up. Thus, as 'twas amongst the Lacedæmonians, what was propounded was determined, clamore non calculis. We have the like Account of an Ecclesiastical Synod in the 28th of the same King.  
Gulielmus Dorobernensis congregavit generale Concilium omnium Ep. & Abb. & quarumcunque religiosarum personarum, 
Contin. ad Flor. Wigor. An. 1127. 28 H. 1.  cui praesedit ipse. This we see was an Episcopal Council, and the Bishop was Precedent, but then Confluxerant quoque illuc magnae multitudines Clericorum laicorum tam divitum quam mediocrium, & factus est conventus grandis & inaestimabilis, here was a confluence of the inferior Clergy, and the Lay-Lords and Commons, and the number was beyond Account.  
Acta sunt ibi de Negotiis Saecularibus nonnulla; being all met together, though upon Ecclesiastical affairs chiefly, yet they had colloquium about Secular too; and coming all in their own persons, (not by way of representation, when they that were chose to come instead of the rest, might receive certain Instructions according to the matter propounded for treaty, beyond which they had no power,) it was not needful that they should know beforehand what they were to treat of, but might fall upon any thing pro re natâ.  
Quaedam quidem determinata, quaedam dilata, quaedam verò propter nimium aestuantis turbae tumultum ab audientiâ judicantium, profligata.  
It seems they had appointed some Judges of the Pole, or rather of the noise, and the Crowd was so Vast, the noise so Confused, that of many things they could not make any certain Judgement; some things were determined by a General Acclamation, and others were Prorogued to a further day.  
Quae autem communi Episcoporum consensu in ipso concilio decreta sunt & Statuta, sicut illic publicè recitata sunt & suscepta, in hoc opere placuit annotare, etc.  
Here Ecclesiastical Matters were first debated, and settled amongst the Bishops, than they were publicly rehearsed, and either rejected, or suscepta received by the whole Assembly of Clergy and laity; but this was not enough to give them the force of a Law, they must have the stamp of Royal Authority to be Currant.  
Rex igitur cum inter haec Londoniae moraretur, auditis concilii gestis consensum praebuit & confirmavit statuta Concilii à Guilielm. 
Contin. ad Flor. f. 663.  Cant. Arch. & Rom. Eccles. Legati apud Westm. Celebrati. At this time it seems the King was not in the Council, but the Canons, though drawn up by the Bishops, promulgated before and assented to by the Body of the Realm, yet had no force till Authenticated by the head of the Church and State.  
Gervase of Dover is little less particular in the Account of the Ecclesiastical Synod in his time, wherein the Canons or Constitution declaring it unlawful for Clergymen, Agitare Judicia Sanguinis, was embodied 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. 
Chronica Ger. Dorob. f. 1429.  Junii Dominicâ ante Ascensionem Dom. afficerunt in hoc concilio omnes suffraganei Cantuar. Eccles. praeter Vigorniens. qui diem clauserat extremum.  
In hoc concilio ad emendationem Anglicanae Ecclesiae assensu Domini Regis & primorum omnium Regni haec subscripta promulgata sunt Capitula. Ad Dextram Primatis sedit Episcopus Londinensis quia inter Episcopos Cantuar. Ecclesiae Sussraganeos decanatus praeminet dignitate; ad Sinistram sedit Episcopus Winton. quia Cantoris officio praecellit: caeteri tam Episcopi quam Abbates secundum primogenit. 
〈…〉 sup.  consecrationis suae consederunt.  
Ipse vero Archiepiscop. 
N. this was according to the Modus tenendi Synodos, Secundum ordinationis suae tempus resideant, only that the Modus more particularly referred to the inferior Clergy in that.  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, etc.  
Here it appears that their Councils were held by the Arch-Bishops of Cant. that the Statutes or Canons were drawn up in some private Consults of Bishops, but they took their force from the Assents of the King and all the Primores Regni, the Clergy and Laity of the Land; and that the third Canon by me cited, was a Statute. This to be sure and the other Ecclesiastical Councils abovementioned, were more than the Curia de more.  
I cannot, as the Author of the Grand Question does, sum up the Arguments on both sides; for I know not one that hath yet been offered, against what I have gone upon, which may be thus represented in short,  
1. That the Canons prohibit the judging in Capital Causes, and all Preliminary Votes too.  
2. That these Canons were received by the great Council of the Nation, and so became incorporated into, and part of the Laws of England.  
3. And that they, running in the terms of Judicia agitare, which in the common intendment is of Ordinary Justice, and the Constitution of Clarendon particularly referring to the Ordinary Court of Justice, except it can be shown that Clergymen Voted in the Ordinary Curia; the Court of Tenants and Officers whilst that Court continued, there is not one Precedent against this sense of the Law. If it be said they have Voted in Bills of Attainders which in effect are Judicia Sanguinis: Still these are not within the ordinary Justice; however if they are Judicia Sanguinis, in a strict sense, let them who are concerned, answer the evading the sense of the Law.  
I shall give one plain instance of a great Council, 
Hen. 2. Anno 1176.  and another of an Ordinary Court in this King's Reign, 
23 Hen. 2. Bendictus Abbas sub effigy Julii Ad. f. 72. Int. Bib. Cott.  and hasten to the next.  
Circa festum Sancti Pauli venit Dominus Rex usque Northampton & magnum ibi celebravit concilium de statutis Regni sui coram Episcopis, Comitibus & Baronibus terrae, & coram eis per concilium Comitum & Baronum, Militum & hominum suorum hanc subscriptam Assisam fecit, etc. This was more than an Ordinary Curia, and there being the Barones terrae; the Milites and homines sui are not to be taken for his feudal Tenants, but his Liege People.  
For his Ordinary Curia we find a clear Precedent in the Glossary of that great Antiquary Sir Henry Spelman, who if he had lived to finish the second part would certainly have given a complete Body of Antiquity. We find in him the form of a fine levied in the Ordinary Curia.  
Haec est finalis conventio facta in curia Domini Regis apud Clarendum anno 33. 
33 Hen. 2. Glos. Tit. Finis.  Regni Regis Henrici Secundi coram Domino Rege & Joh. filio ejus, etc. & aliis Baronibus & fidelibus qui tunc ibi praesentes erant, etc.  
Richard the first was spirited to Jerusalem, and therefore we must not expect many instances from him of the one sort or tother, 
1 Rich. 1.  but I am sure the Ecclesiastical Council at Pipewell in Northamptonshire, 
Anno 1189.  could not be the Curia de more. 
Bromton. fol. 1161.  Sir Hen. Spelman calls it Concilium Pambritanicum, and Bromton tells us in general who were at it, 
Spelm. Con. 2 vol. f. 119.  amongst others there were all the Abbots and Priors of the Kingdom, but it is very manifest that they were not all Tenants in chief, many holding in purâ & perpetuâ eleemosynâ, and others of temporal Lords, 
Poltons' Stat. f. 95. Stat. Asporta is Religiosorum.  as appears by the Statute of Carlisle, 34 Ed. 1. and therefore this was not a Court of the King's Tenants and Officers only.  
But then in November following he assembled a full Parliament at London.  
Rex congregatis Episcopis, 
Bromton. f. 1166.  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, 
Anno 1189. Bromton. f. 1170.  Ricardus Rex Angliae Festum nativitatis Domini quod secunda feria illo anno evenit in Normanniâ apud Burium cum primatibus terrae illius celebravit. 
This seems to have been a Great Council on the Court day.  It seems he had held another Court in England, for this was the second Court, but the great Council at London was not of either of the Feast days. 
K. John  But let us see whether this distinction is observable in the reign of that Prince upon whose Charter our dispute is.  
He was crowned in the presence of a larger representative than the Interpreters of his Charter have put upon us, 
Anno 1199. 1 Jo.  A populo terrae susceptus est. 
Knyghton. f. 2414.   
King John in one of his Charters says, 
Carta moderationis feodi magni sigilli an. 1. Joh. Ex Vet. Registr. in Archivis Cant. Arch. Ma. Par. fol. 189.  he came to the Crown jure hereditario & mediante tam Cleri quam populi unanimi consensu & favore.  
Congregatis Arch. Ep. Comitibus & Baronibus atque aliis omnibus.  
This explains who are meant by the Magnates Regni, 
Anno 1200. 2 Joh.  which assembled at London in the second of his reign, which, the Historian not having mentioned any feast day, or saying barely that the King held his Court, is to be taken for the Great Council: But the Records give further light, 
Rot. Cant. 5 Jo. m. 5. n. 33. & Rot. cart. 17 Jo. p. 2, 2. m. 3. n. 2 5.  they show us that there the Queen was Crowned de communi assensu & concordi Voluntate Arch. Episcoporum, Comitum, Baronum, Cleri & populi totius regni: nor is it a wonder that the Queen being a Foreigner had such a formal consent of the people to confirm her Queen, for there had been at least the pretence of a law against any King of England's marrying a foreigner without the consent of the people, and therefore Harold pleaded against William the First, when he urged his oath for placing the Crown upon William's head, and marrying William's daughter, that he could not do either Inconsultis Principibus, or absque generali Senatus & populi conventu & edicto: 
Eadmerus. fo. 56.  as another Author explains the Council, 
Malmesbury. fo. 59  the consent of which Harold pleaded to be necessary.  
From London King John issues out his summons to William King of Scots to attend him at Lincoln, which summons he was obliged to obey as one of his Tenants in Chief, but thither came more than Tenants in Chief, nor was it the place or time for the Curia de more, and therefore the Curia and General Council was united, the King of Scots coming as attendant upon the Curia, Convenerunt interea ad colloquium apud Lincolniam, 
Mat. Par. 196.  Rex Anglorum Johannes & Rex Scotorum Willielmus cum universà nobilitate tam Cleri quam populi utriusque regni Vndecimo Kalendas Decembris. As under the Nobility, the Senators of Scotland, were comprehended all the Freeholders' 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 mountain in conspectu omnis populi, before all the people, the united body of Freeholders' of both Kingdoms.  
In the third of his reign this King held his Curia on Christmas at Guildford, 
3 Jo. 1201.  and this was no more than his Military Council. 
Mat. Par. fo. 198.  Multa militibus suis festiva distribuit indumenta, (that is,) in festival bounty he gave many Coats to his Soldiers.  
And that this was no more, is very evident in that the Archbishop of Canterbury to show himself a Prince in the Ecclesiastical Empire set up the like Court of his Tenants and Dependants.  
Hubertus verò Cantuariensis Arch. 
M. Par. 〈…〉  quasi cum Rege à pari contendens eodem modo fecit apud Cantuariam.  
At Easter the King held his Court at Canterbury, where the Archbishop by sumptuous entertainment of the King hoped 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 Whitsuntide following at Portsmouth, Generale proposuit edictum ut Comites & Barones & omnes qui militare servitium ei debebant, 
Celebrata igitur apud Portesmue Solemnitate Pentec. ib.  parati essent ad Portesmue cum equis & armis ad transfretandum cum eo ad partes transmarinas in die Pentecostes iam instant.  
Those that would not pass the Seas with him consented to the payment of escuage Two marks of Silver upon every Knight's Fee, dantes Regi de quolibet scuto duas marcas Argenti.  
The next year he held his Curia on Christmas in Normandy. 
4 Joh.   
And the year following this, 
Anno 1202. M. P. f. 199.  he held his Christmas Court in Normandy likewise. 
5 Joh.   
In the year 1204. his Curia was held on Christmas at Canterbury, 
6. Ma. Par. fol. 200. Natale celebravit.  from thence he went to Oxford, where were present more than the Members of the Ordinary Curia; convenerunt ad colloquium apud Oxoniam Rex & Magnates Angliae. Indeed what is then given the King is only from his feudal Tenants, but that is no argument that therefore no more were there, because the Council advised him to charge his Tenants; nay, 'tis very observable that the Historian does not say that they which were there assembled gave, but ubi concessa sunt Regi auxilia militaria de quolibet scuto scilicet duae marcae, that is, there Escuage was given by or upon them, 
Ma. Par. f. 201.  who held by Knight's service, or it might be an aid given generally by every one according to the number of Acres, or value of his estate in proportion to the valuation of a Knights Fee. As was usually done in that and succeeding times.  
And then I take it provision was made for the defence of the Kingdom, (viz.) that every Nine Knights throughout the Kingdom should find a tenth armed at all points to be ready in servitio nostro ad defensionem regni quantum opus fuerit: this to be sure reached further than to the Knights by Military Tenure; because every one that held a Knight's Fee was by his tenure to find a man, and consequently this would have been a weak'ning of the Kingdom to abate of their services, but it must needs have extended to all that held to the value of a Knight's Fee, though not by Knight's service. This was provided Communi assensu Arch. Ep. Com. Baronum & omnium fidelium nostrorum Angliae. 
Rot. Pat. 6 Jo. m. 2. dorso.  And so a general Land Tax.  
And at the same Parliament the King per commune Concilium Regni made an Assize of Money. 
m. 7. dors.   
In the year 1205. he held his Court at Theokesbery which broke up the first day. 
7 Joh.   
Soon after he called together his army, that is, those who were obliged by their tenure to attend him; for though the Curia de more was confined to certain days, yet the King made the Court wherever he pleased to appoint it, and the obligation to attendance at the Court was indefinite; his Military Council when met, refused to go with him beyond sea as he required, whereupon with a few of them he sets out to sea, and after he had coasted about a little, he exacted a great sum of money from those whose tenure could furnish him with a pretence for it, because they discharged not the duty of their tenure, occasiones praetendens quod noluerunt ipsum sequi.  
The next year he held his Court on Christmas at Oxford. 
● Jo. 1206.  The Historians give no mark of any thing more than an ordinary Curia, 
Ma. Par. f. 205.  but the Records do. 
M. West. f. 266.   
There was a grant of subsidy upon every man's personal estate per Commune Concilium & assensum Concilii nostri apud Oxoniam. 
Rot. Pat. 8 & 9 Jo. m. 3. dorso.   
This in another Record is said to be by the Arch. Ep. Abbates & Magnates Regni nostri, Rot. Par. 8 Jo. m. 1.  
On Whitsuntide he held his Court at Portsmouth. 
9 Jo. 1207.  In hebdom. Pentecostes exercitum grand. apud Portesmouth congregavit.  
But then the Christmas following at Winchester he held a General Council, and that was on the Court day. Celebravit natale Domini apud Wintoniam praesentibus Magnatibus regni. 
Archiepisc. Episc. Abbates, Priores, Comites, Barones Milites & & alii magnates Regni Angliae. A. 37 H. 3. Fleta. lib. 2. c. 42.  Deinde in purificatione beatae Mariae cepit per totam Angliam tertiam decimam partem ex omnibus mobilibus & aliis rebus tam de laicis quam de viris ecclesiasticis & praelatis cunctis, murmurantibus sed contradicere non audentibus.  
Here was a grant of what no way belonged to tenure, and therefore all the Magnates regni were privy to it, 
f. 212.  though 'twas done grudgingly.  
In the year 1208. he held his Court on Christmas at Windsor, 
10 Jo. 1208.  where he distributed coats to his Soldiers.  
He held his Christmas Court at Bristol. 
11 Jo. 1209.   
He held a Great Council on the Feast day at Windsor praesentibus omnibus Angliae Magnatibus. 
12 Jo. 1210.   
So the year following at York praesentibus Comitibus & Baronibus regni. 
13 Jo. 1211.   
1212. 'Twas but an ordinary Court held at Windsor, 
14.  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. 
15 Jo.   
In this year we find a Military summons to more than tenants, and of an extraordinary nature.  
Misit literas ad omnes Vicecomites regni sui sub hâc formâ: Rex Johannes etc. Summon per bonos summonitores Comites, Barones, Milites & omnes liberos homines & servientes vel quicunque 
Ma. Par. f. 224.  sint & de quocunque teneant, qui arma habere debent vel arma habere possint, & qui homagium nobis vel ligeantiam fecerunt. Quod sicut nos & seipsos & omnia sua diligunt, sint apud Deveram ad instant. clausum Paschae benè parati cum equis & armis & cum toto posse suo ad defendendum caput nostrum & capita sua & terram Angl. Et quod nullus remaneat qui Arma portare possit sub nomine Culvertagii & perpetuae servitutis. 
Of being reputed a Turntail or Runaway.  Et unusquisque sequatur Dominum suum. Et qui terram non habent & arma habere possint, illic veniant ad capiendum solidatas nostras. Hereby all freemen as well as the King's tenants, nay servants, and all that owed allegiance to the Crown, though not obliged to bear arms, if they could get any, were required to give their attendance, and those that had not wherewithal to maintain themselves should have the Kings pay: this was upon expectation of an invasion, and therefore the assembly seems to have been as general as the summons; but there is a shrewd circumstance to induce the belief that many considerable men not holding in Chief, thought themselves not obliged to attendance till necessity pressed them, for otherwise he would never have been terrified into a dishonourable peace, the parting with all his right of patronage to the Pope, and submitting to his pleasure, if he had not been sensible by the absence of many great men that there was truth in the French King's boast, 
Mat. Par. f. 225.  Jactat se idem Rex Chartas habere omnium ferè Angliae Magnatum de fidelitate & subjectione.  
But that this was not a general Council of the Nation appears by the Statute of Provisors which declares that the Pope's assuming the jus patronatus was an encroachment, 
Stat. 25 Ed. 3.  that is usurpation, or unlawful act, which it would not have been, if the Comites, Barones, and turba multa nimis that unanimously agreed to those shameful terms which King John yielded, had been enough to constitute a full representative of the Nation.  
If they had been called to Council not to fight, than 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, 
Pryn 's King John, f. 269.  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. 
fol. 230.   
The same year his Tenants who were to maintain themselves in his Court and Army at their own charge, complain that he had kept them out so long that they had spent all their money and could follow him no longer unless he supplied them out of the Exchequer.  
This year there was a Great Council at St. Alban where were all the Magnates regni and there was a confirmation of the laws of Hen. the first, 
15. 1213.  whereas we find nothing of that nature at any Curia of the King's tenants and Officers only. 
Mat. Par. fol. 230.   
The same year he held his Court on Christmas at Windsor, 
15 Jo. Ad natale curiam suam tenuit, apud Windleshores. M. Paris ad. Tig. f. 238.  but a Great Council was held at Oxford, the Summons to which Mr. Selden produces, but says the Record of it for aught he had seen is without Example.  
Rex Vicecomiti Oxon salutem, 
Titles of Honour, fo. 587.  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 Proclamation of the time when he would have those that owed him Military Service to attend with their Arms, but the place was not named, for they were to follow him wherever he would have his Court, and therefore herein was an apparent Grievance in some measure redressed by his Charter Two years after in ascertaining the place of Meeting to Consult of Aids and Escuage; but besides these Tenants, there were others, Corpora vero Baronum sine Armis singulariter & quatuor discretos Milites de comitatu tuo venire facias ad nos ad eundem terminum ad loquendum nobiscum de Negotiis regni Nostri. Teste meipso apud. Witten 11 die Nou. Eodem modo scribitur omnibus Vicecomitibus.  
Thus much I take to be clear from it, that here was an union of the Ordinary Curia Regis, the Court of the King's Military Tenants, who were to attend with their Arms, 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, whilst only their Tenants, or at least Inferior Tenants to the King had their Swords in their hands; wherefore Barones here must be taken in the most large and comprehensive sense. But this is farther observable, that where the Summons was General to all the Arch-Bishops, Bishops, Abbots, Priors, Earls, Barons, Knights and Freeholders', yet there has been a special Inquest summoned or taken out of the Generality, as in the Summons to attend the Justices in Eyre. 
Bracton lib. 3. p. 109. b.  Summoneas per bonos Summ. Omnes Arch. Ep. Abb. Pri. Comit. Baron. Milites, & liberè tenentes de Balliva tua, 
So Rot. Finium 8 H. 3. m. 2. dorso.  & de qualibet villâ quatuor legales homines & praepositum, 
The Head-borough.  & de quolibet Burgo Duodecim Legales Burgenses, etc. 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, 
Rot. Pat. 42 H. 3.  four Inquisitors in every County, who were to be sworn in the County Court, to inquire faithfully into the business of every County, in order to represent it at Parliament, which has no semblance of their being the representatives of the Counties, only the presenters and methodizers of that business, to which the Great Council gave their Assent or Dissent.  
From this time to the Great Assembly at Rumny Mead, I find neither a Great Council nor Curia mentioned, that to be sure was of more than the King's Tenants, as I have already shown; I shall only observe farther, that it consisted of that Army which was got together on both sides. On the people's side was a very great Army Comitum, 
Mat. Par. f. 241.  Baronum, Militum & Servientium, Peditum & Equitum cum Communibus Villarum & Civitatum; and after this, they had a great accession, by gaining the whole City of London, and all that were neutral before, and even most of those that had kept along with the King: upon this the King condescends to treat, the place is agreed upon, and accordingly convenerunt ad colloquium Rex & Magnates, who these were the Record tells us, and the Assembly was as General as the Concession on the King's side, 
Magna Charta, 17 Jo. An. 1215.  Concessimus omnibus liberis hominibus nostris Regni Angliae pro nobis & haeredibus nostris in perpetuum, omnes libertates subscriptas habendas & tenendas eyes & haeredibus 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 ordinary Common Council, for that might be, and I need not scruple to say that it was, of the King's Tenants and Officers, which in that sense, and to the purposes for which of course it met, was the Commune concilium regni, yet like the King's ordinary Privy Council, or his Courts of Justice long since settled at Westminster-Hall, they could exercise no act of legislation.  
If it be said, that the charging Tenants with more than was due of custom were such an Act, by the same reason the power of making By-laws would argue a legislative power, and there would be a little Parliament in every Village.  
Without re-examining particular instances I conceive 'tis obvious, that admit the ordinary Curia Regis at any time exercised a power peculiar to the Great Council, of which I dare boldly say there are very rare if any instances, such that it can be affirmed with certainty this was an ordinary Curia, without a more solemn convention, or Summons; yet in irregular times many of them would not make one legal Precedent, especially against so many declarations and confirmations of the ancient laws, and free customs, 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 summoned ad colloquium, and in that sense might be styled Parliamentum, 
Pat. 4 Ed. 1. m. 14.  though not Generale Parliamentum, 
In primo generali Parl. nostro post Coronationem.  and the Generale Parliamentum might be, as indeed it always was, Curia Regis, though not the Curia de more: Yet the certain difference is upon particular instances, where the full circumstances are set down, always to be known. As the ordinary Curia consisted of the King's Tenants, and Officers; and there appears no grievance worth public 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 applied by King John's Charter, to that wherein they were uneasy, which was the assembling about the matters relating ad servitia to their services, without convenient notice for time, or for the occasion; so that they might think it was only for matters of ordinary justice, which might go on well enough without them, when it was really to charge them in their properties, by such as should appear, by design and contrivance, which was a great mischief.  
Wherefore for this the redress was,  
1. That they should have forty day's notice. 
Charta Johannis.   
2. That the time, place and occasion of meeting should be ascertained.  
And then they that were there were justly concluded by the rest, and had no reason to complain of the charge.  
Thus I conceive, I have given a rational account of this Charter, and I question whether upon other grounds any man can reconcile it with the Records and Histories both before and since the Charter till the 49 of Hen. 3. when 'tis supposed that more than Tenants in Chief, which composed the Common Council here mentioned, were let into the Great, or Common Council of the Kingdom.  
If they cannot, I conceive they must take my sense.  
For, this Charter was either declarative of the law as 'twas before, or introductive of a new law.  
If the first, than it must be interpreted by the Records and Histories both before, and since, till a time of change can be assigned with some colour.  
If introductive of a new law, than we must see what interpretation practice has put upon it; not that the sense of a law is always to be interpreted by practice, because than we should think, especially upon the several Statutes against Provisors, which were rarely executed according to the letter, that we could not judge of the sense of former laws by the plain words. But if the words will any way admit of a double sense, that sense is always to be taken which agrees with constant practice, especially if the sense inclines most towards the practice.  
I have at large shown the evident proofs, that to the Great Council of the Nation there used to come more than the King's Tenants in Chief, and consequently this very Charter confirming free customs of every particular the place, or of the inhabitants of those places. According to this Charter the Common Council of the Nation by law consisted of more than the King's Tenants in Chief, and that the Law was thus there is a very strong proof, which turns upon them who suppose that King John's Charter gives us the full form of the Great Council, and that none but the King's Tenants in Capite, made the Common Council or Parliament of the Kingdom till 49 H. 3.  
In the thirty ninth year of H. 3. several years after he had granted and confirmed that famous Charter, 
An. 1254. 39 H. 3.  which alone obtained the addition of Great, so that the Magna Charta or Grand Charter of William the first, Hen. the first, King Stephen, Hen. the second, and King John, all lost their names, and were swallowed up in that, 
Mat. Paris ●d Tig. f. 884.  the Baronagium or omnes fere Angliae Magnates refused to give a Royal Aid, demanded of them, the ground of their refusal is very remarkable.  
Quod omnes tunc temporis non fuerunt juxta tenorem magnae Cartae suae vocati. This some would render and call King John's Charter, and that the complaint was, that the Peers had not their particular Summons according to the tenor of that Charter. Were it so, 'twould prove nothing for them that urge it; because it does not appear, but that the aid demanded might have been Escuage or Taillage, or both, which lay upon the King's Tenants only, such a Common Council as that Charter I conceive establishes. But it is Cartae suae, not Cartae Regis Johannis patris Regis nunc: 'tis the then King Henry the third's Charter, no man will say that 'twas the Baron's Charter, and besides it was the Great Charter, and no other Charter then maintained that Epithet. But what puts this out of dispute is, that though H. 3.'s Charter was comprehensive of all the fundamentals of the Government, and was so many times confirmed, and explained where it was thought needful; yet there is not one clause referring to the Great Council of the Nation, but what leaves to every particular place, and the Inhabitants thereof all ancient Customs and Liberties; so that unless it be proved that such a Commune concilium Regni as is in King John's Charter, used to compose the Great Council exclusive of all others, (excepting what is employed in the general Salvo at the end) they must needs have referred themselves to the ninth Chapter of Henry the Third's Charter (which indeed is but a revival of the law affirmed in King John's.)  
Whereby the City of London, 
Mag. Charta, cap. 9  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 customs.  
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 vi. Villani uniuscujusque Villae. 
Legier Book of Ely.  
Hundred.   
Here are the Sheriff, the Great Barons, and Clergymen and Headboroughs within every Hundred, and six Inhabitants of every Villa, Parish or Township, then follows an account of the several Lands and Tenors by Hundreds and Villae within those Hundreds. Now according to the ninth chapter of Magna Charta custom 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 summoned according to their free customs.  
And methinks the right of the Counties for their coming to the Great Council and its being preserved under the free customs 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 custom before Magna Charta, they used not to be taxed as Citizens, Burgesses, or Tenants of the King's 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 ancient demesn of the Crown. So that when the Commune Concilium, in K. John's Charter, or the King's 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, 
Inter communia de Termino sancti Michaelis, An. 34 E. 1. pro hominibus villae de Coventre.  as part thereof, than they were liable, and no otherwise: and indeed the stream of Records of both H. 3. E. 1. and E. 2. evidently prove all this: but let us touch the Record, Ex parte eorundem hominum Regi est ostensum quod cum villa praedicta, Civitas, Burgus, seu Dominicum Regis non existat, ut homines villae predictae tanquam Cives Burgenses seu tenentes de Dominico Regis in aliquibus auxiliis, Tallagiis seu contributionibus Regi seu Progenitoribus suis concessis non consueverunt talliari, sed tantum cum Communitate Com. Warwic. etc.  
No man will imagine surely the meaning of this Plea to be that the Vill or Town of Coventry was not liable when the King's immediate Tenants taxed themselves only, but they were when such Tenants taxed the whole County; for that would have been an admittance of a grievance beyond that against which they petitioned, for by that the King's Tenants might have excused themselves, and have laid the burden upon them who were not Tenants in Chief, so that it would have been their greatest advantage to claim the privilege of being Tenants to the Crown, and in that capacity to have had a right and privilege 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 Tenors in Capite as chargeable and burdensome; nay even the tenure of Barony itself; but on the contrary every one would have given the King great sums of money to have changed their tenors to have held in Capite ut de Coronâ (when indeed it clearly appears they did the contrary) because they not only could save their individual Estate, if they had the sole power of making Laws, and giving Taxes, but would have increased and bettered them by their Services and Tenors, which capacitated them to lay charge upon all the Barons, Knights and Freeholders of England who held not in Chief and who were by far the major part, many of which held of the great Lords by such and such duties or payments pro omni servitio, and beyond that were not liable without their own consents to be charged; and all this is demonstrative if any will read over and consider the infinite number of plead in the Ages we speak of, viz. (for some few instances) that A. B. holds of C. D. of his Manor 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 summoned by the great Lord pro omni servitio; but to charge them without their assent further, was to overthrow the very Salvo in the end of Henry the Thirds, and in King John's Charter, which runs thus.  
Salvae sint Archiepiscopis, Episcopis, Abbatibus, Prioribus, Templariis, Hospitalariis, Comitibus, Baronibus, Militibus & omnibus aliis tam Ecclesiasticis personis quam secularibus omnes libertates & consuetudines quas prius habuerunt.  
If King John's Charter, in the particular of which our dispute is, introduced a new law, than we must examine only what Custom or practice followed upon it, or who made the Common or Great Councils of the Nation from that time to the 49th of Henry the 3. that is, were of right to come, or to have notice of the Councils sitting juxta tenorem magnae Cartae suae, as is insisted upon in. the 39th of Henry the 3. as above mentioned. That they were more than Tenants in Capite, which made the Commune Concilium in King John's Charter, the Record of the 38th of this King Henry, where two for every County, besides Tenants in Chief; were summoned, were enough to evince.  
We there find Writs to all the Sheriffs of England, to summon the lesser Tenants in Chief, the omnes alios qui in Capite tenent de nobis, as in K. John's Charter, and two more to be chosen by every County respectively, 
Mat. Par. f. 860.  the precepts recite (though 'twere falsum & deceptorium, 
Nota before the large and comprehensive acceptation of Magnates Regni.  as the Historian tells us) that the Earls, Barons, & caeteri Magnates regni, had promised to be at London with Horse and Arms, to go towards Portsmouth, in order to passing the Seas with the King for Gascony, against the French King who then was in war with King Henry.  
Mandamus (says the Record) quod omnes illos de Balliuâ tuâ, 
Rot. Claus. 38 H. 3. m. 7. c. 12. dorso.  qui tenent viginti libratas terrae de nobis in Capite, vel de aliis, qui sunt infra aetatem & in custodiâ nostrâ ad idem distringas, which was to perform their personal services, which not requiring their crossing the Seas, here is a suggestion that '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 moneys to maintain them beyond that time, and therefore for this he directs a representative of the several Counties.  
Tibi districtè praecipimus quod praeter omnes praedictos venire faciatis coram concilio nostro apud West. in Quind. Paschae prox. fut. quatuor legales & discretos milites de Comitatibus praedictis quos iidem Com. ad hoc elegerint vice omnium & singulorum eorundem, 
To the Sheriff of Bedford and Bucks.  viz. duos de uno Com. & duos de alio ad provide. unà cum militibus aliorum Com. quos ad eund. diem vocari fecimus, quale auxilium nobis in tantâ necessitate impendere voluerint.  
These were to come vice omnium & singulorum, instead or in the place of all the Freeholders' of the County, which asserts their personal right: but further, Et tu ipse militibus & aliis de Com. praed. necessitatem nostram & tam urgens negotiam nostrum diligenter exponas & ad competens auxilium nobis ad praesens impendend. efficaciter inducas, Ita quod praefati quatuor milites praefato concilio nostro ad praed. term. Pashae respondere possint super praed. auxil. pro singulis Comitat.  
These were properly to come in the stead of all, for they were only Deputies to carry the sense of their Principals, the matter was to be propounded in the County Courts before the Knights there chose, & aliis, and the rest of the Freeholders'; this whole assembly was to be moved to grant a large contribution, and the Knights were to make the tender of their present, before the King and his Council; if the County had wholly refused, the Knights had no power then to grant for them, so says the Record, for it was to be propounded to all, Ita quod, the Knights might answer for an aid from the County.  
And it seems whether the Counties chose Deputies or not, or gave them not full instructions, the King was not able to work upon them that met at the place and time then appointed, but they broke up in great discontent.  
Et sic cum summa indignatione tristes admodum Proceres recesserunt. 
Mat. Par. f. 859.   
But if the Tenants in Chief made the Common Council of the Kingdom till 49 H. 3. and had a power to tax the rest of the Nation de Alto & Basso ad meram voluntatem suam: why this summons for a representative of the Counties?  
The very next year, being the 39th abovementioned, the King solicits them for Aid.  
They tell the King he undertook that War against France, 
Mat. Par. f. 884.  for which he demanded aid, sine consilio suo & Baronagii sui. And when some were for complying with the King's Demands: they Answer,  
That all were not called according to the Tenor Magnae Cartae suae, that is, of this Kings Great Charter. Now whether this were because many who were exempted from Common Summons (for many such there were by particular Charters) had not Special summons, Singulatim from the King himself, or that he put a representative upon them, whereas they might plead that 'twas their free Custom to come themselves in person, or send as many as they pleased in their names, I need not determine; it being enough that here were more than Tenants in Capite. But a mighty Argument has been raised against Inferior Proprietors or the Barones, Milites & liberè tenentes, which held not of the King, being part of the great or Common Council of the Nation, upon such records as mention their being summoned coram Concilio. And in effect the force resolves into this, they are no part of the Kings standing Council, the Assistants to him and his Lords, or of his Common Council of Tenants and Officers in the Curia, therefore no part of the great or Common Council of the Kingdom.  
To clear this, I need offer but one Instance of many.  
At Christmas in the 6th of Hen. the 3. he held his Curia at Oxford, 
Anno 1221. 6 Hen. 3.  but 'twas more than a Curia de More.  
Tenuit curiam suam praesentibus Comitibus & Baronibus Regni, 
Mat. Par. f. 298.  words of an extensive sense, 
Mat. West. f. 280.  or Ad natale Dom. fuit apud Oxoniam ubi festa Natalitia solemniter cum suis Magnatibus celebravit.  
We have a Record of a subsidy granted that year, probably in that very Curia, Coram Nobis & concilio nostro praesentibus Arch. Cant. Ep. Com. & Magnatibus nostris de Communi Omnium Voluntate. 
Rot. Claus. 6 Hen. 3. m. 7.   
Now many of these were members both of the standing Council and Curia too, and yet were Coram Nobis & Concilio nostro: but the meaning of it is, that this was granted either before the King and his standing Council, or the King in his Curia by all these, That is, here was a conjunction of all Councils in one, adunatis Conciliis.  
But because here are only Com. Bar. & Magnates mentioned as if here were not any but great Lords: 'tis to be observed, and cannot be denied by any Antiquary, that freeholders', and they that came from the Counties as the representatives of such, had the appellation of Magnates, 
Inter Communia Term. S. Mich. 34 E. 1. penes Remem. Dom. Thes. in Scaccario.  even a long while after: and therefore much rather before, when Lands had fewer Owners, the Owners, especially such as came in their own persons, were Magnates.  
In the 37 of this King in Parliamento London. so Mat. Westm. p. 352. 
Rot. Claus. 3 E. 2. m. 16. Rastalls Statutes p. 85. 15 E. 3. 25 E. 3. Stat. 27 E. 3. Statutum Stapulae.  Rex Angliae R. Comes Norfolc. etc. caeterique Magnates Angliae, consented to the Excommunication of all the Violators of the great Charter. Rex & Praedicti Magnates, that is, as is explained by Fleta who was Judge in the 16th of Edward the First, Archiepiscopi, Episcopi, 
Rot. Pat. 37 Hen. 3. m. 12. dorso. Fleta f. 93.  Abbates Regni Angliae, Priores, Comites, Barones, Milites, & alii Magnates: the Record goes on, & Communitas populi protestantur publicè in praesentiâ Arch. Cant. nec non & Episcoporum omnium in eodem colloquio existentium.  
In cujus rei test. & in posterum Veritatis testimonium tam Dominus Rex quam praed. Comites ad Instantiam Magnatum & populi praesentium Scripto Sigilla sua apposuerunt. Here the Communitas populi were the Communitas Civitatum & Burgorum; for the rest were Magnates, the King and some Earls subscribed at the desire of the rest.  
Perhaps by this time they that suppose the Commune Consilium regni within King John's Charter to have been a Full Parliament, or Great Council, till the 49th of Henry the Third, will compound for their Notion, and will yield, That more than such often came to Council, but that 'twas of courtesy, 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 used to answer for their Tenants in Benevolences out of Parliament; and upon this weak, and at least uncertain foundation, they build the Supposition, That they at other times represented them in all Great and Public Councils.  
2. (Which falls within the time) That it should seem by Record, that the immediate Tenants have charged others without their Consent.  
1. To prove that the Lords answered for their Tenants, they run back as far as William the Second 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, broke in pieces the Silver and Gold Ornaments of their Churches, the Earls, Barons, and Sheriffs, suos Milites spoliaverunt, that is, rob those which were under them; and 'tis a fine Precedent for the Right of the thing, which carries Sacrilege and Robbery in the face of it.  
Here the Sheriffs robbed or took away from the Freeholders that were within their Ball'ia or Balliva, and the Lords took from the Tenants within theirs; wherefore if the Lords could charge their Tenants, the Sheriffs could the Freeholders: but I would fain see one Precedent, that the King's Tenants ever answered for them that were within their Ball'ia, further than the Sheriffs did for those within theirs, which at the most was as Collectors under the King, of what was duly charged upon their Tenants; but generally I take it, they did no more than certify how many held of the King within their Precinct, as the Jurisdiction of great Men extended its self within such a compass, they were best able to give the King an account of those that were liable to any payment within that Ball'ia.  
And thus in Henry the Second time, 
Inter Communia de Term. Mich. Anno 28 Ed. 1. Rot. 27. dorso.  the King issues out his Precept, That quilibet Praesul et Baro should certify quot Milites tenerent de ipso Rege in Capite; this was for Escuage towards the Marriage of the King's Daughter, to which all that held in Capite were liable; and here the great Lords were to certify 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 returned, so many were entered in the Exchequer Rolls, under the name of such a Lord; and thus we find it expressly in the Case of the Prior of Coventry.  
Compertum est in Rotulo 29 Regis H. tertii sub titulo de auxilio ad primogenitam filiam Regis maritandam, 
Communiae de Term. Sancti Hill ’ Anno 17 Regis Ed. 3. penes Remem. Regis in Scaccario.  viz. de quolibet Scuto 20 s. Contineri sic. Prior de Coventry reddit compotum de 10 l. de decem feodis de quibus quidem decem libr ’. Willi ’ Tunstall Vic. dicti Comitatus in compoto suo de Anno 32 ipsius Regis H. oneratus fuit.  
Here so many Knight's Fees are entered under the Prior's name, but the Sheriff collected for them.  
Upon this the Prior pleads,  
Hoc ei non prejudicated in hac parte, dicit enim quod auxilia illa non fuerunt nec censeri possunt esse servitia, imò quaedam subsidia per Magnates et communitatem régni spontaneâ et merâ voluntate Regi concessa, et tam de tenentibus aliorum quam de tenentibus de Domino Rege levanda.  
'Tis observable, the ground of demanding for so many Knight's fees was the entry on the Roll in the 29th. of Henry the 3d. and he pleads, That at that time the Coumunitas Regni were Parties to the Grant; and that it was charged by, and lay upon more than Tenants of the King in Chief, but that he was chargeable upon the account of Aid or Service with but two Knights fees, which he says may appear by the Certificate of the then Prior, De feodis quae ipse tunc Prior tenuit de veteri feoffamento, that is, the number of Knights with which he was to serve, according to the first infeodation from the Crown, & de novo, which is the number of Knights fees raised under him by sub-infeodations, the first were all that he could be answerable for, but the second could not be charged without their own consent, the charges upon such were, Quaedam subsidia per magnates & communitatem Regni spontaneâ & merâ voluntate Regi concessa. And thus we find the Records,  
(1.) That the King's Tenants were answerable no farther than according to the vetus feoffamentum.  
So in the 26th. of Henry the 3d. 
Inter Communia de Term. Paschae penes Rem. in Scaccario.  The Sheriff is required to show cause why he distrained a man for two Knights fees, who pleads that he held but one, de veteri feoffamento. Monstravit, etc. Quod cum non teneat de veteri feoffamento nisi feod. unius Militis in comitate tuo tu exig. etc. Quantum pertinet ad feod. duorum Militum & eâ occatione averia sua cepisti, etc.  
(2.) That Lords of Manors could not charge their Tenants without their consent.  
Rex omnibus & liberè tenentibus de Episcopatu Lond. 
Rot. Pat. 6. H. 3.  Reciting the great Debts which the Bishop had contracted in the King's Service, the King earnestly entreats the Bishop's Tenants to make a contribution towards the supply of his necessities, which surely need never have been, if the Bishop had by virtue of the Feudal Law, Power of charging his Tenants, or raising upon them what he had pleased.  
Unde vos affectuosè rogamus quatenus amoris nostri intuitu efficax ei faciatis auxilium ad debita sua quibus pro favore nostro honoratus est. Ita quod exaudita in hac parte prece nostrâ precibus vestris pro loco & tempore nobis porrigendis aures benignas exhibere debeamus.  
(3.) When there was a Grant of more than from the King's immediate Tenants, whose Grants were in the nature of Services, 
Rot. Claus. 19 H. 3. m. 6.  if it reached beyond the vetus feoffamentum, '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 King's Tenants to charge others.  
Sciatis quod Arch. Episc. 
Rot. Claus. 19 H. 3.  Abbates, Priores, Comites, Barones & omnes alii de Regno nostro qui de nobis tenent in Capite spontaneâ voluntate suâ & sine consuetudine concess. nobis efficax auxilium, etc. Undeprovisum est quod habeamus de singulis feodis militum & wardis quae de nobis tenent in Capite duas marcas ad praed. auxilium.  
Here was a Grant only from Tenants in Capite, and yet it may be urged, that other Records explaining this, show, That the Grant reached to the novum feoffamentum, as well as the vetus.  
But it will be said, That I make an Argument for them, which they are wiser than to offer, since the Records of this very clearly overthrow it; yet if there be no better, I may offer this, that they may cultivate and improve it.  
The matter of Fact, I take it, was, That the Tenants in Capite Granted by themselves a charge upon the vetus feoffamentum, and the Record which mentions their Grant goes no farther, but another Record of a Grant from Ecclesiastic Tenants in Chief is more express, and explains the other.  
Cum peteremus à Praelatis Angliae quod nobis auxilium facerent, 
Rot. Pat. 15. H. 3. m. 3.  pro magnâ necessitate nostrâ de quâ eis constabat, viz. Epis. Abbatibus Abbissis, 
Nota Women granting.  Prioribus & Priorissis qui de nobis tenent in Capite ipsi nobis liberaliter concesserunt auxilium tale, viz. De singulis feodis Militum suorum 40 s. de tot feodis de quot ipsi tenentur, nobis respondere quando nobis faciunt servitium militare.  
This is express, That the Tenants in Capite, Granted only for so many Knight's 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 reached to the Tenants de novo feoffamento, the Record mentioning that, shows us that more than Tenants were Parties to the Grant.  
Rex Vic. Summer. 
Rot. Claus. 19 H. 3. m. b.  Salutem sciatis quod Comites & Barones, & omnes alii, de toto regno nostro Angliae spontaneâ voluntate suâ & sine consuetudine concess. nobis efficax auxilium ad magna negotia nostra expediend▪ unde provisum est, de consilio illorum quod habeamus de singulis feodis quae de nobis tenent in Capite & de wardis tam de novo feoffamento quam de veteri duas marcas.  
Whether the Tenants in Capite Granted at this Council by themselves, or all agreed in one Body, is not material, but here is a grant from all, jointly or severally; I will show one Instance, which is barely of such a Commune concilium Regni, as King John's Charter exhibits.  
Rex Bar. 
Inter Communia de Term. Sancti Mich.  Quia per commune concilium Com. Baronum & aliorum Magnatum nobiscum in Walliâ nuper existentium provisum est quod nos & ipsi qui servitium nobis fecerunt, 
Anno 42. H. 3. Rot. 4. de scut. levand.  ibidem habeamus scutagium nostrum, viz. De Sicuto 40 s. pro exercitu nostro Wall ’ anno Regni nostri 41. vobis mandamus quod de omnibus feodis Militum quae tenentur de nobis in Capite vel de Wardis in manu nostra existentibus exceptis feod. illorum qui brevia nostra habuerunt de scutag. suo habendo levari fac. scutag. nostrum▪  
Here was a Common Council of Tenants, such is according to their obligation of their Tenure, had attended the King in his Wars, and they laid Escuage upon them which did not perform their Services due, which still were only Tenants in Chief, and the Tenants of the King's Wards which were liable to the same Service, and they which made default, were to pay Escuage to the King, which he says was to his Tenants too, in as much as he out of that satisfied their charges beyond the duty of their Tenure.  
I think I have cleared my way to the treasury of Records in this King's Reign, which acquaints us with the Members of the Great Council of the Nation.  
As before is observed, 
2 H. 3. or at least 9  for the obtaining Magna Charta, and Charta de Forestâ, the Arch. Episc. Abbates, Priores, Comites, Barones, Milites & liberè tenentes & omnes de Regno Granted a Subsidy.  
There is a Grant of Carvage, 
Rot. Claus. 4 H. 3. m. 5.  which Bracton says, used to be consensu Communi totius Regni, not being a Service, or such as Tenants only used to charge or pay the Reward, has it, Omnes Magnates & fideles totius Regni nostri, Granted de qualibet carucatâ duos solidos.  
The King in his Letter to the Pope, 
Bundela literarum in Turre Lond. A. 8 H. 3.  says, That he had Summoned to Northampton, Arch. Episc. Abb'es' ac omnes Magnates totius Regni, to give him concilium & auxilium.  
The King undertook a Foreign Voyage, 
Rot. Claus. 14 H. 3. M. 2. dorso.  De communi concilio omnium Comitum & Baronum nostrorum Angliae.  
A Fourth part of their Movables is Granted by the Archiepiscopi, 
Rot. Claus. 16 H. 3. M. 2. dorso.  Episc. Abbates, Priores & Clerici terras habentes quae ad Ecclesias suas non pertinent, Comites Barones, Milites, liberi homines, & villani de Regno nostro.  
So that 'tis plain here, 
The Clergy that were Landed-men or Freeholders'.  who made the Commune Concilium Regni, and gave the Subsidy, the Arch-Bishops, Bishops, Abbots, Priors, inferior Landed Clergymen, the Counts, Barons, Knights, Free men, it being a Grant of Goods not laid upon Land; and that it may fully express the Parties to the Grant, the Record tells us there were the villani the Inhabitants of every Villa. A Provision about the Sheriffs Turns, Hundred-Courts, Wapentakes, and the Courts of Lords of Manors was  
De communi concilio domini Cant. 
Rot. Claus. 18 H. 3. pars unica. M. 10.  & omnium Episc. Comitum, & Baronum & aliorum.  
Comites & Barones & omnes alii de toto Regno nostro concess. 
Rot. Claus. 19 H. 3. M. 6.  nobis efficax auxilium, etc.  
It is provided, 
Rot. Claus. ●8 H. 3. M. 3. dorso.  coram venerab. Patre Cant. Arch. & coram Majori parte Episc. Comitum & Baronum totius Regni nostri Angliae, that no Assize of Darrein Presentment shall be taken of any Prebendary belonging to a Cathedral Church.  
At a Parliament, 
Rot. Claus. 21 H. 3. M. 7. dorso.  Cum ad mandatum nostrum convenirent, apud West. Archiepisc. Abbates, Priores Comites & Barones totius Regni nostri & tractatum haberent nobiscum de statu nostro & Regni nostri, They grant a Subsidy Archiepis. Abbates▪ Priores, & Cler ’ terras habentes quae ad Ecclesias suas non pertinent. Comites, Barones, Milites, & liberi homines pro se & suis villanis 30. m. partem omnium mobilium suarum.  
Nus volens & otroiens ke ce ke nostre— lafoy greignure party de eus ki est esluz paromis & par le Commune da nostre Roiaume a fet u fera al honir de dieu & nostre foi & pur le profit de nostre Roiame sicum il ordenera seit ferm & estable en tuites chesel a tuz jurz commandous a tuz noz faus & leaus en la fei kil mis devient kil fermement teignent & jurgent a tenir & meintenir les establissements que sunt fet u sunt a fere par lariont dit Conseil. 
Rot. Pat. 24 H. 3. M. 1.   
This agrees with what was done afterwards, in the 42d. of this King, and it seems by this, that even in the 24th. par le Commune de nostre Roiaume, by the whole Realm or Great Council, the King had a special Council Assigned, which was to have an extraordinary Power.  
Magnates nostri ad sedem Apostolicam appellarunt & quosdam pro universitate totius Baronagii Angliae ad concilium in brevi celebrand ’ ad appellacionem pred ’ prosequendam duxerunt destinandos. 
Rot. Claus. 29 H. M. 8. dorso.   
The Barnagium here according to Mat. Paris, 
Mat. Par. Anno 1246. vid. more at large Mr. Petit's Rights of the Commons of England, Asserted from 111, to 115.  were, Barones, Proceres & Magnates, ac Nobiles Portuum maris habitatores, nec non Clerus, & Populus universus.  
The Pope had ordered, De Apostolicâ se●e, 
Rot. Claus. 32 H. 3. M. 12. dorso.  that a Years profit of the Churches which were of the gift of Laymen, should be settled by way of Subsidy upon the Church of Canterbury; but 'twas denied in full Parliament.  
Magnates terrae nostrae noluerunt in ultimo Parliamento nostro quod fuit London ut de Ecclesiis ad donationem laicorum spectantibus etc.  
In Parliamento nostro Oxon. 
Rot. 42 H. 3. M. 3.  communiter fuit Ordinatum, that was about settling and new modelling some things relating to the Government, 
Rot. Pat. 42 H. 3. M. 10.  which the King promiseth should be done, per concilium proborum et fidelium hominum nostrorum regni Angliae unà cum consilio Legati Domini Papae.  
Pur le profit de nostre reaum et a la request de mes hauz homes e prodes homes e du Comun de nostre Reaume. 
Rot. Pat. 42 H. 3. M. 4.   
The King and People having in the 42 d. agreed upon a standing Council, and that what they did in the way of Settlement, should be effectual, and acquiesced in on all sides.  
Cum etc. promiserimus praedictis proceribus et Magnatibus nostris quod reformac'onem et ordinac'onem per praedictos vigitni quatuor vel majorem partem eorum faciend ’ ratam habebimus et firmam. etc.  
Hereupon in the 45th they order a representation of 3. for every County, pro ea vice, but do not yet settle it for a standing Rule.  
Cum ex parte Episcopi Wign ’ Com. 
Rot. Claus. 45 H. 3. M. 6. dorso.  Leicester & Gloucester ac quorundam aliorum Procerum Regni nostri vocati sunt tres de singulis Comitatibus nostris quod sint coram ipsis ad Sanctum Albanum secum tractaturi super communibus negotiis regni nostri.  
Here the Lords of the Council exceeded their Power, and, as if the King were a cipher in the Government, would have the Knights from the several Shires come before them; the King, not without reason, jealous of his Honour, commands, That they which had been summoned to St. Alban, should come to him at Windsor.  
Nobiscum super premissis colloquium habituros.  
Venerab. 
Rot. Pat. 48 H. 3. M. 2. N. 5.  Pater G. Eboracensis Arch. Angliae Primas et alii Praelati Magnates Milites liberè tenentes et omnes alii de regno nostro servitium fecerunt et auxilium ultra quam temporibus retractis in aliis summonitionibus exercitus nostri facere consueverunt.  
This the King promises should not be drawn into consequence; upon an extraordinary occasion they that were not accustomed to perform Military Service, did it then; and they that did owe Services, did more than they were obliged to by their Tenure; all, as well those that held not of the King in Chief, as those which did, joined together and made a general charge upon the Kingdom of Subsidium et auxilium.  
In the 48th of this King, 
Anno 48th. H. 3. 1264.  there was a right Understanding between him and his People, 
Rot. Pat. 48 H. 3. pars unica. M. 8. dorso. N. 10.  the Record says, Haec est forma pacis a Domino Rege et Domino Edwardo filio suo Praelatis et Proceribus omnibus et Communitate regni Angliae communiter et concorditer approbata, etc.  
Amongst other things, 'twas agreed, Ad reformac'onem status regni Angliae, That they should choose 3 men who should have power from the King to name Nine that should be the Kings standing Council; and if any of the three displeased the Community, si videatur Communitati Prelatorum et Baronum, one or more was to be placed in their room, per consilium Communitatis Praelatorumet Baronum.  
And the Record concludes, Haec autem Ordinatio facta fuit apud London de consensu voluntate et praecepto Domini Regis necnon Praelatorum, Baronum ac etiam Communitatis tunc ibi praesentium.  
The Council so chose as aforesaid, 
Vid. Rot. Claus. 28 H. 3. M. 12. dorso.  were to advise the King in hiis quae spectant ad Regimen Curiae, et regni.  
And at that time, 
Consideratum fuit in Curiâ nostra Coram nobis & toto Parliamento nostro.  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 vouchsafed to send his Special Summons, or were chose by the People, in pursuance of the alia illa Brevia.  
What I have already drawn from the bowels of Antiquity, makes me think that Mr. Selden was arrived to this maturity of Judgement, when he put out the first Edition of his Titles of Honour; wherein he received without doubting the Testimony of the learned Clarenceulx Mr. Camden, 
Titles of Honour. p. 278.  concerning the new modelling of the Great Council of England, 
Ex satis antiquo Authore loquor.  which Mr. Camden tells us, he has out of an Author old enough to know the truth of his Assertion; upon this authority, Mr. Selden took it then pro concesso, that the alteration was as is there shown, and began in the 48th of Hen. the Third, and that the first Summons accordingly was the 49th; which he illustrates by the like many years after in Scotland.  
Item, 
Anno. 1427. 23. Jac. 1.  The King with the Consent of the hail Council generally, hes Statute and Ordained, That the small Baronnes, and free Tennentes, neid not to come to Parliaments nor General Counsels, 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 summoned to Council and Parliament, be his Special Precept.  
This I conceive is an illustration of Mr. Camden's Authority.  
Ad summum honorem pertinet, 
Ordines Angliae. p. 122.  speaking of the word Baro. Ex quo Rex Henricus ex tantâ multitudine quae seditiosa et turbulenta fuit optimos quosque rescripto ad Comitia Parlamentaria evocaverit: ille enim, (ex satis antiquo authore loquor) post magnas perturbationes et enormes vexationes inter ipsum Regem, et Simonem de Monte forti & alios Barones motas, & sopitas statuit & ordinavit quod omnes illi Comites & Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionis dirigere venirent ad Parliament ’ suum, & non alii nisi forte Dominus Rex alia illa brevia dirigere voluisset, sed quod ille paulo ante obitum incepit Ed. 1. ejusque Successores constanter observarunt, unde illi soli Regni Barones censebantur qui ejusmodi summonitionum ut vocant rescriptis ad Comitia evocaverant, donec R. 2. Joannem de Beauchamp de Holt Baronem de Kiderminster diplomate dato 10. Octob. anno nostri sui. 11. creaverit.  
The substance of this is, that the word Baro, was applicable to the whole people, the Body of Freeholders', especially as assembled in Parliament, till the King conferred particular Honour upon some by his especial Writs of Summons, and none other came, but in pursuance of the aliae illa brevia, that is, the Writs for Elections in Counties, Cities, and Boroughs: that this was begun to prevent those Tumults, of which both the King, and the Barons, had Fatal experience.  
That this was Enacted in due form of Law; though the Form is not expressed, yet 'tis employed under the Statuit & ordinavit, being words of Legislation, and for confirmation, that it was so, it has been followed ever since: And that the Barons by Creation, who have ever since their Creation had Right to sit as of the higher Order previous to their sitting or express Summons, came not in till the 11th. of Richard the Second.  
Against this Mr. Selden, whose insight into Records and Ms made him take it ill that any should escape his view, has raised these objections.  
(1.) In all occurrences that I meet with▪ 
Titles of Honour. fol. 589.  since the Grand Charter of King John, I find no mention of any interest that those other Tenants in Chief, eo nomine, had in Parliament, who doubtless were the Persons that were excluded from it, when soever such Law was made.  
Tanti viri pace, This objection comes not nigh the point, it not being proved at least, that King John's Charter gives the Form of a Parliament or General Council, or of any other than a Council of the King's Tenants, for matters belonging to their Tenure: and this sense Mr. Selden himself confirms, when he says, that he finds not that the Minores Barones in Chief, or those other Tenants in Chief, eo nomine, had any interest in Parliament; now not having any peculiar interest, what need of a particular exclusion?  
(2.) Besides, 
Titles of Honour. f. 589, 590.  we have some good Testimany of Barons being distinguished by holding in Chief, from others that held not in Chief, long before the end of Henry the Third, or the time to which that ancient Author refers the Law of alteration, which seems to show, 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 mentioned here as if some held not so, 
Glos. tit. Baro. Proceres nempe & maneriorum Domini nec non liberè quique tenentes, hoc est fundorum proprietariis Anglicè Freeholders', hoc nomine contineri videtur antiquis paginis.  which must be such as were Barons by Writ only.  
Thus much he yields 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 reached to every Freeholder, 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 feudal Tenure, so much the rather Barones, as Freemen.  
The distinction of Barones Majores and Minores, I take it has been movable, 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 Judgements with the Tenants in Chief: In King John's time we find Majores Barones holding in Chief, & alios, so that, the Estates of the Great Barons being parcelled out, some that held immediately of the King, were Minores Barones, by reason of the smallness of their Estates.  
But this is clear from Record, That Writs of special Summons made none Barons out of Parliament, whatever they did in Parliament, except where there was such an unusual Clause as we find in a Writ of Summons, 27 H. 6. Volumus enim vos & heredes vestros masculos de corpore vestro legitimè exeuntes Barones de Vescey existere. 
Claus. 27 H. 6. M. 26. dorso.   
Here was a special Clause of Creation to a Barony; but if the usual Writs, Quatenus, Writs of Summons, made none Barons out of Parliament, and there is not the least ground of conjecture, that such Writs were devised in the time of Henry the Third, it follows, That when Henry the Third Summoned only his own Tenants to perform their Military Services, not to Parliament, and these were Barones tenentes in Capite, but there were other Barons omitted, that these Barons must have been such, by reason of their Freehold.  
That an usual Writ, or Writs of Summons, made none Barons out of Parliament, appears very fully in the Case of Thomas de Furnivall, in the Court of Exchequer.  
Thomas de Furnivall had been amerced tanquam Baro. 
Communia de Term Sancti Hill ’ anno 19 Ed. 2. Rot. penes Rem. Domini Thes in Scaccario.  He pleads in discharge of his amercement, That he was no Baron, nor held by Barony, or part of a Barony, Licet ipse Baro non sit, nec terram suam per Baroniam vel partem Baroniae teneat, nihilominus idem Thomas pro quibusdam defaltis in quibusdam Curiis, 
Pro Thomâ de Furnivall seniore exonerando.  etc. 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 received or used to receive special Writs of Summons to Parliament.  
But 'tis observable, that the only matter put in issue by the direction of the Court, was, Whether he held by Barony, or no, Et quia Barones ante quam ulterius, etc. Volunt certiorari super superius suggestis. Concordatum est quod inquiratur inde & quod Robertus de Nottingham Rememerator hujus Scaccarii assignetur ad capiend ’ inde inquis, etc. Et datus & dies prefato Thom. per Attornatum suum pred hic à die Pasche in unum mensem ad audiend & reccipiend inde quod Cur. etc.  
There was an Inquisition directed into the several Counties, where he had Lands to know how he held them, and according as his Tenure appeared to be, was he to receive Judgement upon his Plea; and 'tis certified, upon the Inquisitions taken, That he held not any Land per Baronium vel partem Baroniae, and therefore according to the sense of the whole Court, though we find not the Judgement then given, non fuit Baro.  
And yet this man had been called to Thirty Parliaments before the time of his Plea; and his Son, as I take it, was called to Seven in the life-time of his Father, Thomas de Furnivall Sen. Summonitus fuit per breve ad Parl ’ Rot. Claus. 23 Ed. 1. m. 9 dorso. Rot. Claus. 23 Ed. 1. m. 3. d. 24. Ed. 1. m. 7. d 25. m. 25. d. 27. m. 18. d. 28. m. 16, 17. d. 28. m. 2, 3. d. 30. m. 7. d. 32. m. 2. d. 33. m. 21. d. 34. m. 2. d. 35. m. 13. d. Rot. Claus. 1 Ed. 2. m. 19 d. 1. m. 11. d. 1. m. 8. d. 2. m. 11. d. 3. m. 17. d. 3. m. 16. d. 5. m. 17. d. 5. m. 3. d. 6. m. 31. d. 6. m. 17. d. 6. m. 2. d. 7. m. 15. d. 8. m. 25. d. 8. m. 29. d. 9 m. 22. d. 11. m. 14. d. 11. m. 12. d. 11. m. 8. d. Thomas de Furnival, Jun. Rot. Claus. 12. d. 2. m. 29. d. 12. m. 11. d. 13. m. 13. d. 14. m. 23. d. 15. m. d. 16. m. 26. d. 17. m. 27. d.  
This Great man was no Baron in the sense of the word Baron then appropriated, the several Writs of Summons had made him no Baron, and yet he was a Lord of Parliament, and since the King dignatus est brevia Summonitionis ad eum dirigere, according to Mr. Camden, he being before one of the multitude of Barons, the word Baro which was applicable to all the Nobility, the Freeholders' in him, pertinebat ad summum honorem. Mr. Selden's last objection is this,  
(3.) That old Author also used by the Learned Camden, 
Titles of Honour. fol. 590.  speaks of Earls no otherwise than of Barons, as if some like exclusion had been of any of them also; than which nothing can be more advers to the known truth both of that Age, and all times, and even in that we have some Character of the slightness of his Authority, whosoever he were.  
This I conceive can be of no great weight, for he might as well have said that Barons were never excluded before, and by the same consequence not then; for I know not how any man can prove, that Earls had more Right than Barons, in the most Honourable acceptation especially.  
But this being then made a Law, 'tis not improbable, that the disposition of this Honour of receiving particular Writs of Summons to Parliament, might have been lodged 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 King's favour, would have been denied it; however, he were deprived of no natural Right. Since the 11th. of Richard the Second, indeed, the Nobility have had settled Rights by Patents, which are as so many constant Warrants for the Chancellor to issue out the Writs of Summons, Ex debito justitiae; with this agrees the great Antiquary, Sir Henry Spelman.  
Sic antiquae illa Baronum dignitas secessit in titularem & arbitrariam regioque 
Glos. tit. Baro.  tandem diplomate id circo dispensata est.  
Upon the dissolution of the separate Court of Tenants, the Tenants still succeeding to that jurisdiction and preference in the way of being called 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, 
In Charta Johannis.  ex debito justitiae, would have had right to special Summons, but the lesser Tenants had the same Right to a general Summons; and the Right of being represented, as properly concluded, the one as the other, unless where the King had exerted his Prerogative. But where the King ex tantâ multitudine Baronum, differing in their circumstances, (some holding of him immediately, others of measn Lords, and his very Tenants being divided into two different Classes, of Majores and Minores) advanced some to be of his particular Council in Parliament. This, with submission, I take it, made them not Judges in Parliament, eonomine▪ because a Court may amerce its own Members, but Counts and Barons by Magna Charta, are not amerceable but by their Peers, and therefore none but their Peers could without their own consent be of the Court with them; which though they might be with consent, as to all Acts amongst themselves, still it would be a question how far they might without particular Patent or Writ creating them to such Honour; act in that Station to the prejudice of others. That special Summons to Parliament, without a Seat there granted and settled by the King, gives no man Vote amongst those who now have Right to such Summons, appears, in that the Judges and Masters in Chancery have had the same Writs with the Lords; and yet are, and have been, but assistants to them, no Members of their House.  
The great Tenants in Chief, and others, in equal Circumstances, were Pares to one another, and if such an one was chose Knight of a Shire, though the Lord Coke says, 
4. Instit.  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 looked upon as one that ordinarily would be specially Summoned, the King might supersede it; and thus we find even before any settled Right by Patent.  
Rex Vicecomiti Surria salutem, 
Claus. dors. 7 R. 2. M. 32.  quia ut accepimus tu Thomam Camoys Chivaler, qui Banneretus est sicut quam plures antecessorum suorum extiterint ad essendum. 
Titles of Honour. ●609.  Unum militum venientium ad proximum Parliamentum nostrum pro Coommunitate Comitatus praedicti de assensu ejusdem Comitatus elegisti, nos advertentes quod hujusmodi Banneretti, ante haec tempora in Milites Comitatus ratione alicujus Parlamenti eligi minimè consueverunt, ipsum de officio Militis ad dictum Parlamentum pro communitate Come ’ predict venturi exonerari volumus, etc. When Tenants in Chief, oreorum Pares, werce called by special Writ, they very properly exercised the same jurisdiction which Tenants did before in their separate Court.  
In the 5th. of Richard the Second, many having refused attendance, and not owning themselves liable to amercements, because of absence, if Tenure laid not a special obligation upon them, comes an Act of Parliament which makes it penal to refuse, or rather delares, that the Law was so of old.  
All singular Persons and Commonalties▪ 
5 R. 2. cap. 4. Anno 1381.  which from henceforth shall have the Summons of Parliament, shall come from henceforth to the Parliament, in the manner as they be bounden to do, and hath been accustomed, within the Realm of England of old times, and every Person of the same Realm, which from henceforth shall have the said Summons (be he Archbishop, Bishop, Abbot, Prior, Duke, Earl, Baron, Banneret, Knight of the Shire, Citizens of City, Burgeiss 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 shows that of old time, they who were Summoned by the King, or chose by the People, aught to come to Parliament; but this being before any Patent, or Writ of Creation to the Dignity of Peer, and to a Seat in Parliament, supposes no obligation upon the King to give any special Summons; indeed where he had granted Charters of exemptions from common Summons, there he had obliged himself (if he would have them obliged by what passed) to give special Summons, were it not that they might have been chose in the Counties particularly, (which altars the case from what it were, if every body came, or might come in their own Persons, some by special, others by general Summon's) but this exemption, and particular Summon's after it, made none Peers that they found not so, but they that came were to come as they were Bounden, and insuch manner, as had been accustomed of old. Which is pregnant with a negative, as if it were in such manner, and no other Manner, Quality, or Degree: and thus they used that to come as assistants to the Lords, continue even at this day to come in the same manner, 
Vid. Prin●▪ first part of Parl ’ Writs. p. 251.  and no otherwise, notwithstanding particular Writs of Summon's eodem modo as to the Lords of Parliament.  
This is further observable, 
Titles of Honour. fol. 608. Rot. Parl. 1 H. 4. m. 16. n. 59 ib. cited, etc.  that in the forecited Statute, and Records, Bannerets are spoken of as above Knights of the Shire, and these were certainly some of the Pares Baronum which often occur to us. If these received their Summons to Parliament, it seems, as it had been of old accustomed, they were to have Voices with the Barons.  
It may be urged, That they which held by Barony, and their Peers, Pares Baronum, were by the Law exempted from being of Common Juries, because they were Lords of Parliament: And therefore they were to come of course and right. 
Countess of Rutland 's Case, Coke 6. Rep. fol. 53.  To which it may be answerered, That is a privilege above the rest of their Fellow Subjects, to be owned by them, as being in common intendment likely to be called to Parliament, and therefore so accounted by the courtesy of England; but what does this signify to bind the King? who is above the reach of an Act of Parliament, unless particularly named.  
But for this a resolution by all the Judges of England in the Reign of Hen. the 8th. is a full Authority, where 'Tis adjudged, that the King may hold his Parliament without such Lords as come only upon the account of their Possessions. 
Standish's Case.  The same in effect Mr. Selden tells us, 
Kelloways Rep. 184. 6. Selden ad Eadm.  in in his Notes upon Eadmerus, Neque eos (speaking of Barones) duntaxat ut hodie significare, quibus peculiaris ordinum Comitiis locus est, sed universos qui saltem beatiores regia munificentia etc. Latifundia 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 only offer by way of learning, some thing which perhaps will be looked 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 direct opposing such in Thesi would be invidious, and gain a disadvantage to the authorities I produce.  
If any body will take the pains to show me, by authentic proofs and warrantable reasons, that all or most of the Records or Histories by me cited, or others not occurring to me, aught to be taken in a sense contrary to what has appeared to me, I shall thankfully receive and acknowledge 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 Judgement diametrically opposing and contradicting their Positions 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 passed neglected; There is a material Objection against the foundation of the whole, which is the general agreement 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 answered 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, 
Spelm. Con. 2. Vol. fol. 1.  or bonae conversationis came sometimes in their own Persons, and when they agreed to it, which was no abridgement 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 Bodies, 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. Westminster, 
Mat. Westm. fol. 273. Anno 1215.  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 Regem et Barones de pace Regni inter Stanes & Windsoram in prato quod dicitur Runemed quod interpretatur pratum Concilii eö quod ab antiquis temporibus ibi de pace regni saepius consilia tractabantur.  
This shows the usual places of Assembling to have been large enough for all the people, which are in so many Records and Histories Printed and in Manuscript, said to have been present at the Great or General Councils; I shall conclude with one Instance of the Parties present at such a Council, which is delivered with sufficient perspicuity.  
Anselm in one of his disputes with Henry the First, 
Eadmerus, f. 70.  desires the debate may be adjourned till the Easter following.  
Differantur haec si placet usqu; in Pascha ut audito Episcoporum, regnique 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, Communi consilii vocem accepit, etc.  
Here the Council Episcoporum et Primatum, to which he referred himself, was reciprocal with the ingenuitas regni, 
Glos. tit. Ingenuus.  that is, as Sir Henry Spelman shows us, the liberi et legales homines, the good honest Freeholders, some of which were no better than Plebeians.  
And therefore this authority alone, especially as 'tis strengthened by those others to the same purpose, which I have cited absque dolo et malo ingenio, evince to me, That he or they who put out the Second Part of Sir Henry Spelman's Glossary, 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 used, are no where amongst the several Councils which he had read of, mentioned 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 conceive are put upon him, are these,  
Sine ut sodes dicam collegisse me centenas reor comitiorum edictiones (tenoresque 
Glos. 2d. Part, tit. Parlamentum, ed. Lond. Anno 1664.  plurimorum) ab ingressu Gulielmii ad excessum Henrici 3. existentium nec in tantâ multitudine de plebe uspiam reperisse aliquid.  
Indeed notice being taken of those Councils where were Optimates et Barones totius Angliae, and of that famous Assembly at Salisbury-Plain of the Barones et Vicecomites cum suis Militibus, in pursuance of the Summons of William the First, the positiveness of the assertion is restrained with a ni in his dilituerit. But what doubt can be made of those words, whereby they are expressly mentioned, and that according to the true Sir Henry Spelman, I am not yet aware of.  
FINIS.   

ERRATA.  
PAge 3. l. 16. r. Tzurick for Tours: p. 5. margin. r. contemporaneo▪ p. 8. l. 12. for William read Hugh: p. 9 l. 9 r. Attendance: p. 10. l. 7. add laici before omnes: p. 12. l. 29. join a to part: p. 17. l. 4. r. fuerat: p. 25. l 6. add est de before antiquo: l. 7. deal est de: p. 27. marg. r. Hil. for Mich. p. 35. l. 3. add è before tota: p. 40. l. 22. r. illuc: l. 19 r. Knight for Knights: p. 45. last l. r. antequam: p. 47. l. 4. deal Comma after Sheriffs: l. 15. r. vias: l. 19 deal s after Knight: p. 53. l. 28. make a Comma after King's title: l. 29. r. election: p. 60. l. 28. add is after that: p. 63. l. 18. r. of for in: p. 64. l. 14. put a Comma after only: p. 65. l. 15. r. 'twas: p. 66. l. 7. put a Comma after Nobility: l. 10. after Londoners make a Comma: so after Citizens: l. 11. put a Comma after amongst them: p. 68 l. 14. r. Matilda: p. 206. l. 2. r. plectendum: l. 3. r. judicare: p. 217. l. 11. r. affuerunt: p. 228. l. 9 r. Doveram: p. 237. l. 7. add the before free Customs: l. 8. deal the: 2d. Sheet of p. 237. l. 13. r. militibus: p. 238. l. 9 r. tenants used: p. 240. l. 20. r. de scuto: l. 28. r. the for their: p. 241. l. 11. deal s after acquaint: l. 22. r. record: p. 245. l. 2. r. negotium: p. 246. l. 5. r. retroactis: p. 247. l. 23. r. his instead of this: p. 251. margin. r. proprietariis: p. 255. r. Baro: l. 21. put a Comma after Freeholders: p. 261. l. 1. r. that before used: p. 262. l. 20. add s to thing: p. 265. l. 14. add s to ●●mmuni.   

A Catalogue of some Books, lately Printed for Tho. Basset at the George in Fleetstreet.  
AN Institution of General History, or the Histo of the World in two Volumes in folio, by Dr. William Howel, Chancellor of Lincoln. Printed 1680.  
Historical Collections, being an exact Account of the Proceedings of the four last Parliaments of the Renowned Princess Queen Elizabeth, containing the Journals of Both Houses, with their several Speeches, Arguments, Motions, etc. in folio, writ by Hayward Townshend Esq then a Member of Parliament, Printed 1680.  
The Ancient Right of the Commons of England Asserted, or a Discourse Proving by Records, and the best Historians, That the Commons of England were ever an Essential part of Parliament, By William Petyt of the Inner Temple Esq  
Of the French Monarchy, and Absolute Power, and also a Treatise of the Three States, and their Power, deduced from the most Authentic Histories, for above 1200 Years, and digested this latter, by Mat. Zampini de Recanati. L. L. D.  
The Constitution of Parliaments in England, deduced from the time of King Edward the Second, Illustrated by King Charles the Second, in his Parliament Summoned the 18th. Febr. 1660/1. and Dissolved the 14th. Jan. 1678/9. with an Appendix of its Sessions, in Oct.  
The Politics of France, by Monsieur P. H. Marquis of C. with Reflections on the 4th. and 5th. Chapters: wherein he censures the Roman Clergy, and the Huguenots; by the Sir l'Ormegregny.  
Le Beau Pleadeur, a Book of Entries containing Declarations, Informations, and other select and approved Plead, with Special Verdicts, and Demurrers, in most Actions real, Personal, and mixed, which have been argued, and adjudged in the Courts at Westminster, together with faithful references to the most Authentic printed Law books now extant, where the Cases of these Entries are reported, and a more Copious and useful Table than hath been hitherto Printed in any book of Entries, by the Reverend Sir Humphrey Winch Knight, sometime one of the Justices of the Court of Common Pleas.  
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