NOTES TO CHAPTER VIII.

(Part III.)

It is rather a curious speculative question, and such only, we may presume, it will long continue, whether bishops are entitled, on charges of treason or felony, to a trial by the peers. If this question be considered either theoretically or according to ancient authority, I think the affirmative proposition is beyond dispute. Bishops were at all times members of the great national council, and fully equal to lay lords in temporal power as well as dignity. Since the Conquest they have held their temporalities of the crown by a baronial tenure, which, if there be any consistency in law, must unequivocally distinguish them from commoners—since any one holding by barony might be challenged on a jury, as not being the peer of the party whom he was to try. It is true that they take no share in the judicial power of the house of lords in cases of treason or felony; but this is merely in conformity to those ecclesiastical canons which prohibited the clergy from partaking in capital judgment, and they have always withdrawn from the house on such occasions under a protestation of their right to remain. Had it not been for this particularity, arising wholly out of their own discipline, the question of their peerage could never have come into dispute. As for the common argument that they are not tried as peers because they have no inheritable nobility, I consider it as very frivolous, since it takes for granted the precise matter in controversy, that an inheritable nobility is necessary to the definition of peerage, or to its incidental privileges.

If we come to constitutional precedents, by which, when sufficiently numerous and unexceptionable, all questions of this kind are ultimately to be determined, the weight of ancient authority seems to be in favour of the prelates. In the fifteenth year of Edward III. (1340), the king brought several charges against archbishop Stratford. He came to parliament with a declared intention of defending himself before his peers. The king insisted upon his answering in the court of exchequer. Stratford however persevered, and the house of lords, by the king's consent, appointed twelve of their number, bishops, earls, and barons, to report whether peers ought to answer criminal charges in parliament, and not elsewhere. This committee reported to the king in full parliament that the peers of the land ought not to be arraigned, nor put on trial, except in parliament and by their peers. The archbishop upon this prayed the king, that, inasmuch as he had been notoriously defamed, he might be arraigned in full parliament before the peers, and there make answer; which request the king granted. (Rot. Parl. vol. ii. p. 127. Collier's Eccles. Hist. vol. i. p. 543.) The proceedings against Stratford went no further; but I think it impossible not to admit that his right to trial as a peer was fully recognised both by the king and lords.

This is, however, the latest, and perhaps the only instance of a prelate's obtaining so high a privilege. In the preceding reign of Edward II., if we can rely on the account of Walsingham (p. 119), Adam Orleton, the factious bishop of Hereford, had first been arraigned before the house of lords, and subsequently convicted by a common jury; but the transaction was of a singular nature, and the king might probably be influenced by the difficulty of obtaining a conviction from the temporal peers, of whom many were disaffected to him, in a case where privilege of clergy was vehemently claimed. But about 1357 a bishop of Ely, being accused of harbouring one guilty of murder, though he demanded a trial by the peers, was compelled to abide the verdict of a jury. (Collier, p. 557.) In the 31st of Edw. III. (1358) the abbot of Missenden was hanged for coining. (2 Inst. p. 635.) The abbot of this monastery appears from Dugdale to have been summoned by writ in the 49th of Henry III. If he actually held by barony, I do not perceive any strong distinction between his case and that of a bishop. The leading precedent, however, and that upon which lawyers principally found their denial of this privilege to the bishops, is the case of Fisher, who was certainly tried before an ordinary jury; nor am I aware that any remonstrance was made by himself, or complaint by his friends, upon this ground. Cranmer was treated in the same manner; and from these two, being the most recent precedents, though neither of them in the best of times, the great plurality of law-books have drawn a conclusion that bishops are not entitled to trial by the temporal peers. Nor can there be much doubt that, whenever the occasion shall occur, this will be the decision of the house of lords.

There are two peculiarities, as it may naturally appear, in the above-mentioned resolution of the lords in Stratford's case. The first is, that they claim to be tried, not only before their peers, but in parliament. And in the case of the bishop of Ely it is said to have been objected to his claim of trial by his peers, that parliament was not then sitting. (Collier, ubi sup.) It is most probable, therefore, that the court of the lord high steward, for the special purpose of trying a peer, was of more recent institution—as appears also from Sir E. Coke's expressions. (4 Inst. p. 58.) The second circumstance that may strike a reader is, that the lords assert their privilege in all criminal cases, not distinguishing misdemeanors from treasons and felonies. But in this they were undoubtedly warranted by the clear language of Magna Charta, which makes no distinction of the kind. The practice of trying a peer for misdemeanors by a jury of commoners, concerning the origin of which I can say nothing, is one of those anomalies which too often render our laws capricious and unreasonable in the eyes of impartial men.

Since writing the above note I have read Stillingfleet's treatise on the judicial power of the bishops in capital cases—a right which, though now, I think, abrogated by non-claim and a course of contrary precedents, he proves beyond dispute to have existed by the common law and constitutions of Clarendon, to have been occasionally exercised, and to have been only suspended by their voluntary act. In the course of this argument he treats of the peerage of the bishops, and produces abundant evidence from the records of parliament that they were styled peers, for which, though convinced from general recollection, I had not leisure or disposition to search. But if any doubt should remain, the statute 25 E. III. c. 6, contains a legislative declaration of the peerage of bishops. The whole subject is discussed with much perspicuity and force by Stillingfleet, who seems however not to press very greatly the right of trial by peers, aware no doubt of the weight of opposite precedents. (Stillingfleet's Works, vol. iii. p. 820.) In one distinction, that the bishops vote in their judicial functions as barons, but in legislation as magnates, which Warburton has brought forward as his own in the Alliance of Church and State, Stillingfleet has perhaps not taken the strongest ground, nor sufficiently accounted for their right of sitting in judgment on the impeachment of a commoner. Parliamentary impeachment, upon charges of high public crimes, seems to be the exercise of a right inherent in the great council of the nation, some traces of which appear even before the Conquest (Chron. Sax. p. 164, 169), independent of and superseding that of trial by peers, which, if the 29th section of Magna Charta be strictly construed, is only required upon indictments at the king's suit. And this consideration is of great weight in the question, still unsettled, whether a commoner can be tried by the lords upon an impeachment for treason.

The treatise of Stillingfleet was written on occasion of the objection raised by the commons to the bishops voting on the question of Lord Danby's pardon, which he pleaded in bar of his impeachment. Burnet seems to suppose that their right to final judgment had never been defended, and confounds judgment with sentence. Mr. Hargrave, strange to say, has made a much greater blunder, and imagined that the question related to their right of voting on a bill of attainder, which no one, I believe, ever disputed. (Notes on Co. Litt. 134 b.)

The constitution of parliament in this period, antecedent to the Great Charter, has been minutely and scrupulously investigated by the Lords' Committee on the Dignity of a Peer in 1819. Two questions may be raised as to the lay portion of the great council of the nation from the Conquest to the reign of John:—first, Did it comprise any members, whether from the counties or boroughs, not holding themselves, nor deputed by others holding in chief of the crown by knight-service or grand serjeanty? secondly, Were all such tenants in capite personally, or in contemplation of law, assisting, by advice and suffrage, in councils held for the purpose of laying on burthens, or for permanent and important legislation?

The former of these questions they readily determine. The committee have discovered no proof, nor any likelihood from analogy, that the great council, in these Norman reigns, was composed of any who did not hold in chief of the crown by a military tenure, or one in grand serjeanty; and they exclude, not only tenants in petty serjeanty and socage, but such as held of an escheated barony, or, as it was called, de honore.

They found more difficulty in the second question. It has generally been concluded, and I may have taken it for granted in my text, that all military tenants in capite were summoned, or ought to have been summoned, to any great council of the realm, whether for the purpose of levying a new tax, or any other affecting the public weal. The committee, however, laudably cautious in drawing any positive inference, have moved step by step through this obscure path with a circumspection as honourable to themselves as it renders their ultimate judgment worthy of respect.

"The council of the kingdom, however composed (they are adverting to the reign of Henry I.), must have been assembled by the king's command; and the king, therefore, may have assumed the power of selecting the persons to whom he addressed the command, especially if the object of assembling such a council was not to impose any burthen on any of the subjects of the realm exempted from such burthens except by their own free grants. Whether the king was at this time considered as bound by any constitutional law to address such command to any particular persons, designated by law as essential parts of such an assembly for all purposes, the committee have been unable to ascertain. It has generally been considered as the law of the land that the king had a right to require the advice of any of his subjects, and their personal services, for the general benefit of the kingdom; but as, by the terms of the charters of Henry and of his father, no aid could be required of the immediate tenants of the crown by military service, beyond the obligation of their respective tenures, if the crown had occasion for any extraordinary aid from those tenants, it must have been necessary, according to law, to assemble all persons so holding, to give their consent to the imposition. Though the numbers of such tenants of the crown were not originally very great, as far as appears from Domesday, yet, if it was necessary to convene all to form a constitutional legislative assembly, the distances of their respective residences, and the inconvenience of assembling at one time, in one spot, all those who thus held of the crown, and upon whom the maintenance of the Conquest itself must for a considerable time have importantly depended, must have produced difficulties, even in the reign of the Conqueror; and the increase of their numbers by subdivision of tenures must have greatly increased the difficulty in the reign of his son Henry: and at length, in the reigns of his successors, it must have been almost impossible to have convened such an assembly, except by general summons of the greater part of the persons who were to form it; and unless those who obeyed the summons could bind those who did not, the powers of the assembly when convened must have been very defective." (p. 40.)

Though I do not perceive why we should assume any great subdivision of tenures before the statute of Quia Emptores, in 18 Edw. I., which prohibited subinfeudation, it is obvious that the committee have pointed out the inconvenience of a scheme which gave all tenants in capite (more numerous in Domesday than they perhaps were aware) a right to assist at great councils. Still, as it is manifest from the early charters, and explicitly admitted by the committee, that the king could raise no extraordinary contribution from his immediate vassals by his own authority, and as there was no feudal subordination between one of these and another, however differing in wealth, it is clear that they were legally entitled to a voice, be it through general or special summons, in the imposition of taxes which they were to pay. It will not follow that they were summoned, or had an acknowledged right to be summoned, on the few other occasions when legislative measures were in contemplation, or in the determinations taken by the king's great council. This can only be inferred by presumptive proof or constitutional analogy.

The eleventh article of the Constitutions of Clarendon in 1164 declares that archbishops, bishops, and all persons of the realm who hold of the king in capite, possess their lands as a barony, and are bound to attend in the judgments of the king's court like other barons. It is plain, from the general tenor of these constitutions, that "universæ personæ regni" must be restrained to ecclesiastics; and the only words which can be important in the present discussion are "sicut barones cæteri." "It seems," says the committee, "to follow that all those termed the king's barons were tenants in chief of the king; but it does not follow that all tenants in chief of the king were the king's barons, and as such bound to attend his court. They might not be bound to attend unless they held their lands of the king in chief 'sicut baroniam,' as expressed in this article with respect to the archbishops and other clergy." (p. 44.) They conclude, however, that "upon the whole the Constitutions of Clarendon, if the existing copies be correct, afford strong ground for presuming that owing suit to the king's great court rendered the tenant one of the king's barons or members of that court, though probably in general none attended who were not specially summoned. It has been already observed that this would not include all the king's tenants in chief, and particularly those who did not hold of him as of his crown, or even to all who did hold of him as of his crown, but not by knight-service or grand serjeanty, which were alone deemed military and honourable tenures; though, whether all who held of the king as of his crown, by knight-service or grand serjeanty, did originally owe suit to the king's court, or whether that obligation was confined to persons holding by a particular tenure, called tenure per baroniam, as has been asserted, the Constitutions of Clarendon do not assist to ascertain." (p. 45.) But this, as they point out, involves the question whether the Curia Regis, mentioned in these constitutions, was not only a judicial but a legislative assembly, or one competent to levy a tax on military tenants, since by the terms of the charter of Henry I., confirmed by that of Henry II., all such tenants were clearly exempted from taxation, except by their own consents.

They touch slightly on the reign of Richard I. with the remark that "the result of all which they have found with respect to the constitution of the legislative assemblies of the realm still leaves the subject in great obscurity." (p. 49.) But it is remarkable that they have never alluded to the presence of tenants in chief, knights as well as barons, at the parliament of Northampton under Henry II. They come, however, rather suddenly to the conclusion that "the records of the reign of John seem to give strong ground for supposing that all the king's tenants in chief by military tenure, if not all the tenants in chief,[a] were at one time deemed necessary members of the common councils of the realm, when summoned for extraordinary purposes, and especially for the purpose of obtaining a grant of any extraordinary aid to the king; and this opinion accords with what has generally been deemed originally the law in France, of other countries where what is called the feudal system of tenures has been established." (p. 54.) It cannot surely admit of a doubt, and has been already affirmed more than once by the committee, that for an extraordinary grant of money the consent of military tenants in chief was required long before the reign of John. Nor was that a reign, till the enactment of the Great Charter, when any fresh extension of political liberty was likely to have become established. But the difficulty may still remain with respect to "extraordinary purposes" of another description.

They observe afterwards that "they have found no document before the Great Charter of John in which the term 'majores barones' has been used, though in some subsequent documents words of apparently similar import have been used. From the instrument itself it might be presumed that the term 'majores barones' was then a term in some degree understood; and that the distinction had, therefore, an earlier origin, though the committee have not found the term in any earlier instrument." (p. 67.) But though the Dialogue on the Exchequer, generally referred to the reign of Henry II., is not an instrument, it is a law-book of sufficient reputation, and in this we read—"Quidam de rege tenent in capite quæ ad coronam pertinent; baronias scilicet majores seu minores." (Lib. ii. cap. 10.) It would be trifling to dispute that the tenant of a baronia major might be called a baro major. And what could the secundæ dignitatis barones at Northampton have been but tenants in capite holding fiefs by some line or other distinguishable from a superior class?[b]

It appears, therefore, on the whole, that in the judgment of the committee, by no means indulgent in their requisition of evidence, or disposed to take the more popular side, all the military tenants in capite were constitutionally members of the commune concilium of the realm during the Norman constitution. This commune concilium the committee distinguish from a magnum concilium, though it seems doubtful whether there were any very definite line between the two. But that the consent of these tenants was required for taxation they repeatedly acknowledge. And there appears sufficient evidence that they were occasionally present for other important purposes. It is, however, very probable that writs of summons were actually addressed only to those of distinguished name, to those resident near the place of meeting, or to the servants and favourites of the crown. This seems to be deducible from the words in the Great Charter, which limit the king's engagement to summon all tenants in chief, through the sheriff, to the case of his requiring an aid or scutage, and still more from the withdrawing of this promise in the first year of Henry III. The privilege of attending on such occasions, though legally general, may never have been generally exercised.

The committee seem to have been perplexed about the word magnates employed in several records to express part of those present in great councils. In general they interpret it, as well as the word proceres, to include persons not distinguished by the name "barones;" a word which in the reign of Henry III. seems to have been chiefly used in the restricted sense it has latterly acquired. Yet in one instance, a letter addressed to the justiciar of Ireland, 1 Hen. III., they suppose the word magnates to "exclude those termed therein 'alii quamplurimi;' and consequently to be confined to prelates, earls, and barons. This may be deemed important in the consideration of many other instruments in which the word magnates has been used to express persons constituting the 'commune concilium regni.'" But this strikes me as an erroneous construction of the letter. The words are as follows:—"Convenerunt apud Glocestriam plures regni nostri magnates, episcopi, abbates, comites, et barones, qui patri nostro viventi semper astiterunt fideliter et devotè, et alii quamplurimi; applaudentibus clero et populo, &c., publicè fuimus in regem Angliæ inuncti et coronati." (p. 77.) I think that magnates is a collective word, including the "alii quamplurimi." It appears to me that magnates, and perhaps some other Latin words, correspond to the witan of the Anglo-Saxons, expressing the legislature in general, under which were comprised those who held peculiar dignities, whether lay or spiritual. And upon the whole we may be led to believe that the Norman great council was essentially of the same composition as the witenagemot which had preceded it; the king's thanes being replaced by the barons of the first or second degree, who, whatever may have been the distinction between them, shared one common character, one source of their legislative rights—the derivation of their lands as immediate fiefs from the crown.

The result of the whole inquiry into the constitution of parliament down to the reign of John seems to be—1. That the Norman kings explicitly renounced all prerogative of levying money on the immediate military tenants of the crown, without their consent given in a great council of the realm; this immunity extending also to their sub-tenants and dependants. 2. That all these tenants in chief had a constitutional right to attend, and ought to be summoned; but whether they could attend without a summons is not manifest. 3. That the summons was usually directed to the higher barons, and to such of a second class as the king pleased, many being omitted for different reasons, though all had a right to it. 4. That on occasions when money was not to be demanded, but alterations made in the law, some of these second barons, or tenants in chief, were at least occasionally summoned, but whether by strict right or usage does not fully appear. 5. That the irregularity of passing many of them over when councils were held for the purpose of levying money, led to the provision in the Great Charter of John by which the king promises that they shall all be summoned through the sheriff on such occasions; but the promise does not extend to any other subject of parliamentary deliberation. 6. That even this concession, though but the recognition of a known right, appeared so dangerous to some in the government that it was withdrawn in the first charter of Henry III.

The charter of John, as has just been observed, while it removes all doubt, if any could have been entertained, as to the right of every military tenant in capite to be summoned through the sheriff, when an aid or scutage was to be demanded, will not of itself establish their right of attending parliament on other occasions. We cannot absolutely assume any to have been, in a general sense, members of the legislature except the prelates and the majores barones. But who were these, and how distinguished? For distinguished they must now have become, and that by no new provision, since none is made. The right of personal summons did not constitute them, for it is on majores barones, as already a determinate rank, that the right is conferred. The extent of property afforded no definite criterion; at least some baronies, which appear to have been of the first class, comprehended very few knights' fees: yet it seems probable that this was the original ground of distinction.[c]

The charter, as renewed in the first year of Henry III., does not only omit the clause prohibiting the imposition of aids and scutages without consent, and providing for the summons of all tenants in capite before either could be levied, but gives the following reason for suspending this and other articles of king John's charter:—"Quia vero quædam capitula in priori cartâ continebantur, quæ gravia et dubitabilia videbantur, sicut de scutagiis et auxiliis assidendis ... placuit supra-dictis prælatis et magnatibus ea esse in respectu, quousque plenius consilium habuerimus, et tunc faciemus plurissimè, tam de his quam de aliis quæ occurrerint emendanda, quæ ad communem omnium utilitatem pertinuerint, et pacem et statum nostrum et regni nostri." This charter was made but twenty-four days after the death of John; and we may agree with the committee (p. 77) in thinking it extraordinary that these deviations from the charter of Runnymede, in such important particulars, have been so little noticed. It is worthy of consideration in what respects the provisions respecting the levying of money could have appeared grave and doubtful. We cannot believe that the earl of Pembroke, and the other barons who were with the young king, himself a child of nine years old and incapable of taking a part, meant to abandon the constitutional privilege of not being taxed in aids without their consent. But this they might deem sufficiently provided for by the charters of former kings and by general usage. It is not, however, impossible that the government demurred to the prohibition of levying scutage, which stood on a different footing from extraordinary aids; for scutage appears to have been formerly taken without consent of the tenants; and in the second charter of Henry III. there is a clause that it should be taken as it had been in the time of Henry II. This was a certain payment for every knight's fee; but if the original provision of the Runnymede charter had been maintained, none could have been levied without consent of parliament.

It seems also highly probable that, before the principle of representation had been established, the greater barons looked with jealousy on the equality of suffrage claimed by the inferior tenants in capite. That these were constitutionally members of the great council, at least in respect of taxation, has been sufficiently shown; but they had hitherto come in small numbers, likely to act always in subordination to the more potent aristocracy. It became another question whether they should all be summoned, in their own counties, by a writ selecting no one through favour, and in its terms compelling all to obey. And this question was less for the crown, which might possibly find its advantage in the disunion of its tenants, than for the barons themselves. They would naturally be jealous of a second order, whom in their haughtiness they held much beneath them, yet by whom they might be outnumbered in those councils where they had bearded the king. No effectual or permanent compromise could be made but by representation, and the hour for representation was not come.

The Lords' committee, though not very confidently, take the view of Brady and Blackstone, confining the electors of knights to tenants in capite. They admit that "the subsequent usage, and the subsequent statutes founded on that usage, afford ground for supposing that in the 49th of Henry III. and in the reign of Edward I. the knights of the shires returned to parliament were elected at the county courts and by the suitors of those courts. If the knights of the shires were so elected in the reigns of Henry III. and Edward I., it seems important to discover, if possible, who were the suitors of the county courts in these reigns" (p. 149). The subject, they are compelled to confess, after a discussion of some length, remains involved in great obscurity, which their industry has been unable to disperse. They had, however, in an earlier part of their report (p. 30), thought it highly probable that the knights of the shires in the reign of Edward III. represented a description of persons who might in the reign of the Conqueror have been termed barons. And the general spirit of their subsequent investigation seems to favour this result, though they finally somewhat recede from it, and admit at least that, before the close of Edward III.'s reign, the elective franchise extended to freeholders.

The question, as the committee have stated it, will turn on the character of those who were suitors to the county court. And, if this may be granted, I must own that to my apprehension there is no room for the hypothesis that the county court was differently constituted in the reign of Edward I. or of Edward III. from what it was very lately, and what it was long before those princes sat on the throne. In the Anglo-Saxon period we find this court composed of thanes, but not exclusively of royal thanes, who were comparatively few. In the laws of Henry I. we still find sufficient evidence that the suitors of the court were all who held freehold lands, terrarum domini; or, even if we please to limit this to lords of manors, which is not at all probable, still without distinction of a mesne or immediate tenure. Vavassors, that is, mesne tenants, are particularly mentioned in one enumeration of barons attending the court. In some counties a limitation to tenants in capite would have left this important tribunal very deficient in numbers. And as in all our law-books we find the county court composed of freeholders, we may reasonably demand evidence of two changes in its constitution, which the adherents to the theory of restrained representation must combine—one which excluded all freeholders except those who held immediately of the crown; another which restored them. The notion that the county court was the king's court baron (Report, p. 150), and thus bore an analogy to that of the lord in every manor, whether it rests on any modern legal authority or not, seems delusive. The court baron was essentially a feudal institution; the county court was from a different source; it was old Teutonic, and subsisted in this and other countries before the feudal jurisdictions had taken root. It is a serious error to conceive that, because many great alterations were introduced by the Normans, there was nothing left of the old system of society.[d]

It may, however, be naturally inquired why, if the king's tenants in chief were exclusively members of the national council before the era of county representation, they did not retain that privilege; especially if we conceive, as seems on the whole probable, that the knights chosen in 38 Henry III. were actually representatives of the military tenants of the crown. The answer might be that these knights do not appear to have been elected in the county court; and when that mode of choosing knights of the shire was adopted, it was but consonant to the increasing spirit of liberty, and to the weight also of the barons, whose tenants crowded the court, that no freeholder should be debarred of his equal suffrage. But this became the more important, and we might almost add necessary, when the feudal aids were replaced by subsidies on movables; so that, unless the mesne freeholders could vote at county elections, they would have been taxed without their consent and placed in a worse condition than ordinary burgesses. This of itself seems almost a decisive argument to prove that they must have joined in the election of knights of the shire after the Confirmatio Chartarum. If we were to go down so late as Richard II., and some pretend that the mesne freeholders did not vote before the reign of Henry IV., we find Chaucer's franklin, a vavassor, capable even of sitting in parliament for his shire. For I do not think Chaucer ignorant of the proper meaning of that word. And Allen says (Edinb. Rev. xxviii. 145)—"In the earliest records of the house of commons we have found many instances of sub-vassals who have represented their counties in parliament."

If, however, it should be suggested that the practice of admitting the votes of mesne tenants at county elections may have crept in by degrees, partly by the constitutional principle of common consent, partly on account of the broad demarcation of tenants in capite by knight-service from barons, which the separation of the houses of parliament produced, thus tending, by diminishing the importance of the former, to bring them down to the level of other freeholders; partly, also, through the operation of the statute Quia Emptores (18 Edward I.), which, by putting an end to subinfeudation, created a new tenant of the crown upon every alienation of land, however partial, by one who was such already, and thus both multiplied their numbers and lowered their dignity; this supposition, though incompatible with the argument built on the nature of the county court, would be sufficient to explain the facts, provided we do not date the establishment of the new usage too low. The Lords' committee themselves, after much wavering, come to the conclusion that "at length, if not always, two persons were elected by all the freeholders of the county, whether holding in chief of the crown or of others" (p. 331). This they infer from the petitions of the commons that the mesne tenants should be charged with the wages of knights of the shire; since it would not be reasonable to levy such wages from those who had no voice in the election. They ultimately incline to the hypothesis that the change came in silently, favoured by the growing tendency to enlarge the basis of the constitution, and by the operation of the statute Quia Emptores, which may not have been of inconsiderable influence. It appears by a petition in 51 Edward III. that much confusion had arisen with respect to tenures; and it was frequently disputed whether lands were held of the king or of other lords. This question would often turn on the date of alienation; and, in the hurry of an election, the bias being always in favour of an extended suffrage, it is to be supposed that the sheriff would not reject a claim to vote which he had not leisure to investigate.

It now appears more probable to me than it did that some of the greater towns, but almost unquestionably London, did enjoy the right of electing magistrates with a certain jurisdiction before the Conquest. The notion which I found prevailing among the writers of the last century, that the municipal privileges of towns on the continent were merely derived from charters of the twelfth century, though I was aware of some degree of limitation which it required, swayed me too much in estimating the condition of our own burgesses. And I must fairly admit that I have laid too much stress on the silence of Domesday Book; which, as has been justly pointed out, does not relate to matters of internal government, unless when they involve some rights of property.

I do not conceive, nevertheless, that the municipal government of Anglo-Saxon boroughs was analogous to that generally established in our corporations from the reign of Henry II. and his successors. The real presumption has been acutely indicated by Sir F. Palgrave, arising from the universal institution of the court-leet, which gave to an alderman, or otherwise denominated officer, chosen by the suitors, a jurisdiction, in conjunction with themselves as a jury, over the greater part of civil disputes and criminal accusations, as well as general police, that might arise within the hundred. Wherever the town or borough was too large to be included within a hundred, this would imply a distinct jurisdiction, which may of course be called municipal. It would be similar to that which, till lately, existed in some towns—an elective high bailiff or principal magistrate, without a representative body of aldermen and councillors. But this is more distinctly proved with respect to London, which, as is well known, does not appear in Domesday, than as to any other town. It was divided into wards, answering to hundreds in the county; each having its own wardmote, or leet, under its elected alderman. "The city of London, as well within the walls, as its liberties without the walls, has been divided from time immemorial into wards, bearing nearly the same relation to the city that the hundred anciently did to the shire. Each ward is, for certain purposes, a distinct jurisdiction. The organisation of the existing municipal constitution of the city is, and always has been, as far as can be traced, entirely founded upon the ward system." (Introduction to the French Chronicle of London.—Camden Society, 1844.)

Sir F. Palgrave extends this much further:—"There were certain districts locally included within the hundreds, which nevertheless constituted independent bodies politic. The burgesses, the tenants, the resiants of the king's burghs and manors in ancient demesne, owed neither suit nor service to the hundred leet. They attended at their own leet, which differed in no essential respect from the leet of the hundred. The principle of frank-pledge required that each friborg should appear by its head as its representative; and consequently, the jurymen of the leet of the burgh or manor are usually described under the style of the twelve chief pledges. The legislative and remedial assembly of the burgh or manor was constituted by the meeting of the heads of its component parts. The portreeve, constable, headborough, bailiff, or other the chief executive magistrate, was elected or presented by the leet jury. Offences against the law were repressed by their summary presentments. They who were answerable to the community for the breach of the peace punished the crime. Responsibility and authority were conjoined. In their legislative capacity they bound their fellow-townsmen by making by-laws." (Edin. Rev. xxxvi. 309.) "Domesday Book," he says afterwards, "does not notice the hundred court, or the county-court; because it was unnecessary to inform the king or his justiciaries of the existence of the tribunals which were in constant action throughout all the land. It was equally unnecessary to make a return of the leets which they knew to be inherent in every burgh. Where any special municipal jurisdiction existed, as in Chester, Stamford, and Lincoln, then it became necessary that the franchise should be recorded. The twelve lagemen in the two latter burghs were probably hereditary aldermen. In London and in Canterbury aldermen occasionally held their sokes by inheritance.[e] The negative evidence extorted out of Domesday has, therefore, little weight." (p. 313.)

It seems, however, not unquestionable whether this representation of an Anglo-Saxon and Anglo-Norman municipality is not urged rather beyond the truth. The portreeve of London, their principal magistrate, appears to have been appointed by the crown. It was not till 1188 that Henry Fitzalwyn, ancestor of the present Lord Beaumont,[f] became the first mayor of London. But he also was nominated by the crown, and remained twenty-four years in office. In the same year the first sheriffs are said to have been made (facti). But John, immediately after his accession in 1199, granted the citizens leave to choose their own sheriffs. And his charter of 1215 permits them to elect annually their mayor. (Maitland's Hist. of London, p. 74, 76.) We read, however, under the year 1200, in the ancient chronicle lately published, that twenty-five of the most discreet men of the city were chosen and sworn to advise for the city, together with the mayor. These were evidently different from the aldermen, and are the original common council of the city. They were perhaps meant in a later entry (1229):—"Omnes aldermanni et magnates civitatis per assensum universorum civium," who are said to have agreed never to permit a sheriff to remain in office during two consecutive years.

The city and liberties of London were not wholly under the jurisdiction of the several wardmotes and their aldermen. Landholders, secular and ecclesiastical, possessed their exclusive sokes, or jurisdictions, in parts of both. One of these has left its name to the ward of Portsoken. The prior of the Holy Trinity, in right of this district, ranked as an alderman, and held a regular wardmote. The wards of Farringdon are denominated from a family of that name, who held a part of them by hereditary right as their territorial franchise. These sokes gave way so gradually before the power of the citizens, with whom, as may be supposed, a perpetual conflict was maintained, that there were nearly thirty of them in the early part of the reign of Henry III., and upwards of twenty in that of Edward I. With the exception of Portsoken, they were not commensurate with the city wards, and we find the juries of the wards, in the third of Edward I., presenting the sokes as liberties enjoyed by private persons or ecclesiastical corporations, to the detriment of the crown. But, though the lords of these sokes trenched materially on the exclusive privileges of the city, it is remarkable that, no condition but inhabitancy being required in the thirteenth century for civic franchises, both they and their tenants were citizens, having individually a voice in municipal affairs, though exempt from municipal jurisdiction. I have taken most of this paragraph from a valuable though short notice of the state of London in the thirteenth century, published in the fourth volume of the Archæological Journal (p. 273).

The inference which suggests itself from these facts is that London, for more than two centuries after the Conquest, was not so exclusively a city of traders, a democratic municipality, as we have been wont to conceive. And as this evidently extends back to the Anglo-Saxon period, it both lessens the improbability that the citizens bore at times a part in political affairs, and exhibits them in a new light, as lords and tenants of lords, as well as what of course they were in part, engaged in foreign and domestic commerce. It will strike every one, in running over the list of mayors and sheriffs in the thirteenth century, that a large proportion of the names are French; indicating, perhaps, that the territorial proprietors whose sokes were intermingled with the city had influence enough, through birth and wealth, to obtain an election. The general polity, Saxon and Norman, was aristocratic; whatever infusion there might be of a more popular scheme of government, and much certainly there was, could not resist, even if resistance had been always the people's desire, the joint predominance of rank, riches, military habits, and common alliance, which the great baronage of the realm enjoyed. London, nevertheless, from its populousness, and the usual character of cities, was the centre of a democratic power, which, bursting at times into precipitate and needless tumult easily repressed by force, kept on its silent course till, near the end of the thirteenth century, the rights of the citizens and burgesses in the legislature were constitutionally established. [1848.]

If Fitz-Stephen rightly informs us that in London there were 126 parish churches, besides 13 conventual ones, we may naturally think the population much underrated at 40,000. But the fashion of building churches in cities was so general, that we cannot apply a standard from modern times. Norwich contained sixty parishes.

Even under Henry II., as we find by Fitz-Stephen, the prelates and nobles had town houses. "Ad hæc omnes fere episcopi, abbates, et magnates Angliæ, quasi cives et municipes sunt urbis Lundoniæ; sua ibi habentes ædificia præclara; ubi se recipiunt, ubi divites impensas faciunt, ad concilia, ad conventus celebres in urbem evocati, à domino rege vel metropolitano suo, seu propriis tracti negotiis." The eulogy of London by this writer is very curious; its citizens were thus early distinguished by their good eating, to which they added amusements less congenial to later liverymen, hawking, cock-fighting, and much more. The word cockney is not improbably derived from cocayne, the name of an imaginary land of ease and jollity.

The city of London within the walls was not wholly built, many gardens and open spaces remaining. And the houses were never more than a single story above the ground-floor, according to the uniform type of English dwellings in the twelfth and following centuries. On the other hand, the liberties contained many inhabitants; the streets were narrower than since the fire of 1666; and the vast spaces now occupied by warehouses might have been covered by dwelling-houses. Forty thousand, on the whole, seems rather a low estimate for these two centuries; but it is impossible to go beyond the vaguest conjecture.

The population of Paris in the middle ages has been estimated with as much diversity as that of London. M. Dulaure, on the basis of the taille in 1313, reckons the inhabitants at 49,110.[g] But he seems to have made unwarrantable assumptions where his data were deficient. M. Guérard, on the other hand (Documens Inédits, 1841), after long calculations, brings the population of the city in 1292 to 215,861. This is certainly very much more than we could assign to London, or probably any European city; and, in fact, his estimate goes on two arbitrary postulates. The extent of Paris in that age, which is tolerably known, must be decisive against so high a population.[h]

The Winton Domesday, in the possession of the Society of Antiquaries of London, furnishes some important information as to that city, which, as well as London, does not appear in the great Domesday Book. This record is of the reign of Henry I. Winchester had been, as is well known, the capital of the Anglo-Saxon kings. It has been observed that "the opulence of the inhabitants may possibly be gathered from the frequent recurrence of the trade of goldsmith in it, and the populousness of the town from the enumeration of the streets." (Cooper's Public Records, i. 226.) Of these we find sixteen. "In the petition from the city of Winchester to king Henry VI. in 1450, no less than nine of these streets are mentioned as having been ruined." As York appears to have contained about 10,000 inhabitants under the Confessor, we may probably compute the population of Winchester at nearly twice that number.

The Lords' committee extenuate the presumption that either knights or burgesses sat in any of these parliaments. The "cunctarum regni civitatum pariter et burgorum potentiores," mentioned by Wikes in 1269 or 1270, they suppose to have been invited in order to witness the ceremony of translating the body of Edward the Confessor to his tomb newly prepared in Westminster Abbey (p. 161). It is evident, indeed, that this assembly acted afterwards as a parliament in levying money. But the burgesses are not mentioned in this. It cannot, nevertheless, be presumed from the silence of the historian, who had previously informed us of their presence at Westminster, that they took no part. It may be perhaps, more doubtful whether they were chosen by their constituents or merely summoned as "potentiores."

The words of the statute of Marlbridge (51 Hen. III.), which are repeated in French by that of Gloucester (6 Edw. I.), do not satisfy the committee that there was any representation either of counties or boroughs. "They rather import a selection by the king of the most discreet men of every degree" (p. 183). And the statutes of 13 Edw. I., referring to this of Gloucester, assert it to have been made by the king, "with prelates, earls, barons, and his council," thus seeming to exclude what would afterwards have been called the lower house. The assembly of 1271, described in the Annals of Waverley, "seems to have been an extraordinary convention, warranted rather by the particular circumstances under which the country was placed than by any constitutional law" (p. 173). It was, however, a case of representation; and following several of the like nature, at least as far as counties were concerned, would render the principle familiar. The committee are even unwilling to admit that "la communauté de la terre illocques summons" in the statute of Westminster I., though expressly distinguished from the prelates, earls, and barons, appeared in consequence of election (p. 173). But, if not elected, we cannot suppose less than that all the tenants in chief, or a large number of them, were summoned; which, after the experience of representation, was hardly a probable course.

The Lords' committee, I must still incline to think, have gone too far when they come to the conclusion that, on the whole view of the evidence collected on the subject, from the 49th of Hen. III. to the 18th of Edw. I., there seems strong ground for presuming that, after the 49th of Hen. III., the constitution of the legislative assembly returned generally to its old course; that the writs issued in the 49th of Henry III., being a novelty, were not afterwards precisely followed, as far as appears, in any instance; and that the writs issued in the 11th of Edw. I., "for assembling two conventions, at York and Northampton, of knights, citizens, burgesses, and representatives of towns, without prelates, earls, and barons, were an extraordinary measure, probably adopted for the occasion, and never afterwards followed; and that the writs issued in the 18th of Edw. I., for electing two or three knights for each shire without corresponding writs for election of citizens or burgesses, and not directly founded on or conformable to the writs issued in the 49th of Henry III., were probably adopted for a particular purpose, possibly to sanction one important law [the statute Quia Emptores], and because the smaller tenants in chief of the crown rarely attended the ordinary legislative assemblies when summoned, or attended in such small numbers that a representation of them by knights chosen for the whole shire was deemed advisable, to give sanction to a law materially affecting all the tenants in chief, and those holding under them" (p. 204).

The election of two or three knights for the parliament of 18th Edw. I., which I have overlooked in my text, appears by an entry on the close roll of that year, directed to the sheriff of Northumberland; and it is proved from the same roll that similar writs were directed to all the sheriffs in England. We do not find that the citizens and burgesses were present in this parliament; and it is reasonably conjectured that, the object of summoning it being to procure a legislative consent to the statute Quia Emptores, which put an end to the subinfeudation of lands, the towns were thought to have little interest in the measure. It is, however, another early precedent for county representation; and that of 22nd of Edw. I. (see the writ in Report of Committee, p. 209) is more regular. We do not find that the citizens and burgesses were summoned to either parliament.

But, after the 23rd of Edward I., the legislative constitution seems not to have been unquestionably settled, even in the essential point of taxation. The Confirmation of the Charters, in the 25th year of that reign, while it contained a positive declaration that no "aids, tasks, or prises should be levied in future, without assent of the realm," was made in consideration of a grant made by an assembly in which representatives of cities and boroughs do not appear to have been present. Yet, though the words of the charter or statute are prospective, it seems to have long before been reckoned a clear right of the subject, at least by himself, not to be taxed without his consent. A tallage on royal towns and demesnes, nevertheless, was set without authority of parliament four years afterwards. This "seems to show, either that the king's right to tax his demesnes at his pleasure was not intended to be included in the word tallage in that statute [meaning the supposed statute de tallagio non concedendo], or that the king acted in contravention of it. But if the king's cities and boroughs were still liable to tallage at the will of the crown, it may not have been deemed inconsistent that they should be required to send representatives for the purpose of granting a general aid to be assessed on the same cities and boroughs, together with the rest of the kingdom, when such general aid was granted, and yet should be liable to be tallaged at the will of the crown when no such general aid was granted" (p. 244).

If in these later years of Edward's reign the king could venture on so strong a measure as the imposition of a tallage without consent of those on whom it was levied, it is less surprising that no representatives of the commons appear to have been summoned to one parliament, or perhaps two, in his twenty-seventh year, when some statutes were enacted. But, as this is merely inferred from the want of any extant writ, which is also the case in some parliaments where, from other sources, we can trace the commons to have been present, little stress should be laid upon it.

In the remarks which I have offered in these notes on the Report of the Lords' Committee, I have generally abstained from repeating any which Mr. Allen brought forward. But the reader should have recourse to his learned criticism in the Edinburgh Review. It will appear that the committee overlooked not a few important records, both in the reign of Edward I. and that of his son.

Two considerable authorities have, since the first publication of this work, placed themselves, one very confidently, one much less so, on the side of our older lawyers and in favour of the antiquity of borough representation. Mr. Allen, who, in his review of my volumes (Edinb. Rev. xxx. 169), observes, as to this point,—"We are inclined, in the main, to agree with Mr. Hallam," lets us know, two or three years afterwards, that the scale was tending the other way, when, in his review of the Report of the Lords' Committee, who give a decided opinion that cities and boroughs were on no occasion called upon to assist at legislative meetings before the forty-ninth of Henry III., and are much disposed to believe that none were originally summoned to parliament, except cities and boroughs of ancient demesne, or in the hands of the king at the time when they received the summons, he says,—"We are inclined to doubt the first of these propositions, and convinced that the latter is entirely erroneous." (Edinb. Rev. xxxv. 30.) He allows, however, that our kings had no motive to summon their cities and boroughs to the legislature, for the purpose of obtaining money, "this being procured through the justices in eyre, or special commissioners; and therefore, if summoned at all, it is probable that the citizens and burgesses were assembled on particular occasions only, when their assistance or authority was wanted to confirm or establish the measures in contemplation by the government." But as he alleges no proof that this was ever done, and merely descants on the importance of London and other cities both before and after the Conquest, and as such an occasional summons to a great council, for the purpose of advice, would by no means involve the necessity of legislative consent, we can hardly reckon this very acute writer among the positive advocates of a high antiquity for the commons in parliament.

Sir Francis Palgrave has taken much higher ground, and his theory, in part at least, would have been hailed with applause by the parliaments of Charles I. According to this, we are not to look to feudal principles for our great councils of advice and consent. They were the aggregate of representatives from the courts-leet of each shire and each borough, and elected by the juries to present the grievances of the people and to suggest their remedies. The assembly summoned by William the Conqueror appears to him not only, as it did to lord Hale, "a sufficient parliament," but a regular one; "proposing the law and giving the initiation to the bill which required the king's consent." (Ed. Rev. xxxvi. 327.) "We cannot," he proceeds, "discover any essential difference between the powers of these juries and the share of the legislative authority which was enjoyed by the commons at a period when the constitution assumed a more tangible shape and form." This is supported with that copiousness and variety of illustration which distinguish his theories, even when there hangs over them something not quite satisfactory to a rigorous inquirer, and when their absolute originality on a subject so beaten is of itself reasonably suspicious. Thus we come in a few pages to the conclusion—"Certainly there is no theory so improbable, so irreconcilable to general history or to the peculiar spirit of our constitution, as the opinions which are held by those who deny the substantial antiquity of the house of commons. No paradox is so startling as the assumption that the knights and burgesses who stole into the great council between the close of the reign of John and the beginning of the reign of Edward should convert themselves at once into the third estate of the realm, and stand before the king and his peers in possession of powers and privileges which the original branches of the legislature could neither dispute nor withstand" (p. 332). "It must not be forgotten that the researches of all previous writers have been directed wholly in furtherance of the opinions which have been held respecting the feudal origin of parliament. No one has considered it as a common-law court."

I do not know that it is necessary to believe in a properly feudal origin of parliament, or that this hypothesis is generally received. The great council of the Norman kings was, as in common with Sir F. Palgrave and many others I believe, little else than a continuation of the witenagemot, the immemorial organ of the Anglo-Saxon aristocracy in their relation to the king. It might be composed, perhaps, more strictly according to feudal principles; but the royal thanes had always been consenting parties. Of the representation of courts-leet we may require better evidence: aldermen of London, or persons bearing that name, perhaps as landowners rather than citizens (see a former note), may possibly have been occasionally present; but it is remarkable that neither in historians nor records do we find this mentioned; that aldermen, in the municipal sense, are never enumerated among the constituents of a witenagemot or a council, though they must, on the representative theory, have composed a large portion of both. But, waiving this hypothesis, which the author seems not here to insist upon, though he returns to it in the Rise and Progress of the English Commonwealth, why is it "a startling paradox to deny the substantial antiquity of the house of commons"? By this I understand him to mean that representatives from counties and boroughs came regularly, or at least frequently, to the great councils of Saxon and Norman kings. Their indispensable consent in legislation I do not apprehend him to affirm, but rather the reverse:—"The supposition that in any early period the burgesses had a voice in the solemn acts of the legislature is untenable." (Rise and Progress, &c., i. 314.) But they certainly did, at one time or other, obtain this right, "or convert themselves," as he expresses it, "into the third estate of the realm;" so that upon any hypothesis a great constitutional change was wrought in the powers of the commons. The revolutionary character of Montfort's parliament in the 49th of Hen. III. would sufficiently account both for the appearance of representatives from a democracy so favourable to that bold reformer and for the equality of power with which it was probably designed to invest them. But whether in the more peaceable times of Edward I. the citizens or burgesses were recognised as essential parties to every legislative measure, may, as I have shown, be open to much doubt.

I cannot upon the whole overcome the argument from the silence of all historians, from the deficiency of all proof as to any presence of citizens and burgesses, in a representative character as a house of commons, before the 49th year of Henry III.; because after this time historians and chroniclers exactly of the same character as the former, or even less copious and valuable, do not omit to mention it. We are accustomed in the sister kingdoms, so to speak, of the continent, founded on the same Teutonic original, to argue against the existence of representative councils, or other institutions, from the same absence of positive testimony. No one believes that the three estates of France were called together before the time of Philip the Fair. No one strains the representation of cities in the cortes of Castile beyond the date at which we discover its existence by testimony. It is true that unreasonable inferences may be made from what is usually called negative evidence; but how readily and how often are we deceived by a reliance on testimony! In many instances the negative conclusion carries with it a conviction equal to a great mass of affirmative proof. And such I reckon the inference from the language of Roger Hoveden, of Matthew Paris, and so many more who speak of councils and parliaments full of prelates and nobles, without a syllable of the burgesses. Either they were absent, or they were too insignificant to be named; and in that case it is hard to perceive any motive for requiring their attendance.

A record, which may be read in Brady's History of England (vol. ii. Append. p. 66) and in Rymer (t. iv. p. 1237), relative to the proceedings on Edward II.'s flight into Wales and subsequent detention, recites that, "the king having left his kingdom without government, and gone away with notorious enemies of the queen, prince, and realm, divers prelates, earls, barons, and knights, then being at Bristol in the presence of the said queen and duke (prince Edward, duke of Cornwall), by the assent of the whole commonalty of the realm there being, unanimously elected the said duke to be guardian of the said kingdom; so that the said duke and guardian should rule and govern the said realm in the name and by the authority of the king his father, he being thus absent." But the king being taken and brought back into England, the power thus delegated to the guardian ceased of course; whereupon the bishop of Hereford was sent to press the king to permit that the great seal, which he had with him, the prince having only used his private seal, should be used in all things that required it. Accordingly the king sent the great seal to the queen and prince. The bishop is said to have been thus commissioned to fetch the seal by the prince and queen, and by the said prelates and peers, with the assent of the said commonalty then being at Hereford. It is plain that these were mere words of course; for no parliament had been convoked, and no proper representatives could have been either at Bristol or Hereford. However, this is a very curious record, inasmuch as it proves the importance attached to the forms of the constitution at this period.

The Lords' committee dwell much on an enactment in the parliament held at York in 15 Edw. II. (1322), which they conceived to be the first express recognition of the constitutional powers of the lower house. It was there enacted that "for ever thereafter all manner of ordinances or provisions made by the subjects of the king or his heirs, by any power or authority whatsoever, concerning the royal power of the king or his heirs, or against the estate of the crown, should be void and of no avail or force whatsoever; but the matters to be established for the estate of the king and of his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established in parliament by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as had been before accustomed. This proceeding, therefore, declared the legislative authority to reside only in the king, with the assent of the prelates, earls, and barons, and commons assembled in parliament; and that every legislative act not done by that authority should be deemed void and of no effect. By whatever violence this statute may have been obtained, it declared the constitutional law of the realm on this important subject." (p. 282.) The violence, if resistance to the usurpation of a subject is to be called such, was on the part of the king, who had just sent the earl of Lancaster to the scaffold, and the present enactment was levelled at the ordinances which had been forced upon the crown by his faction. The lords ordainers, nevertheless, had been appointed with consent of the commons, as has been mentioned in the text; so that this provision in 15 Edward II. seems rather to limit than to enhance the supreme power of parliament, if it were meant to prohibit any future enactment of the same kind by its sole authority. But the statute is declaratory in its nature; nor can we any more doubt that the legislative authority was reposed in the king, lords, and commons before this era than that it was so ever afterwards. Unsteady as the constitutional usage had been through the reign of Edward I., and willing as both he and his son may have been to prevent its complete establishment, the necessity of parliamentary consent both for levying money and enacting laws must have become an article of the public creed before his death. If it be true that even after this declaratory statute laws were made without the assent or presence of the commons, as the Lords' committee incline to hold (p. 285, 286, 287), it was undeniably an irregular and unconstitutional proceeding; but this can only show that we ought to be very slow in presuming earlier proceedings of the same nature to have been more conformable to the spirit of the existing constitution. The Lords' committee too often reason from the fact to the right, as well as from the words to the fact; both are fallacious, and betray them into some vacillation and perplexity. They do not, however, question, on the whole, but that a new constitution of the legislative assemblies of the realm had been introduced before the 15th year of Edward II., and that "the practice had prevailed so long before as to give it, in the opinion of the parliament then assembled, the force and effect of a custom, which the parliament declared should thereafter be considered as established law." (p. 293.) This appears to me rather an inadequate exposition of the public spirit, of the tendency towards enlarging the basis of the constitution, to which the "practice and custom" owed its origin; but the positive facts are truly stated.

Writs are addressed in 11th of Edw. II. "comitibus, majoribus baronibus, et prælatis," whence the Lords' committee infer that the style used in John's charter was still preserved (Report, p. 277). And though in those times there might be much irregularity in issuing writs of summons, the term "majores barones" must have had an application to definite persons. Of the irregularity we may judge by the fact that under Edward I. about eighty were generally summoned; under his son never so many as fifty, sometimes less than forty, as may be seen in Dugdale's Summonitiones ad Parliamentum. The committee endeavour to draw an inference from this against a subsisting right of tenure. But if it is meant that the king had an acknowledged prerogative of omitting any baron at his discretion, the higher English nobility must have lost its notorious privileges, sanctioned by long usage, by the analogy of all feudal governments, and by the charter of John, which, though not renewed in terms, nor intended to be retained in favour of the lesser barons, or tenants in capite, could not, relatively to the rights of the superior order, have been designedly relinquished.

The committee wish to get rid of tenure as conferring a right to summons; they also strongly doubt whether the summons conferred an hereditary nobility; but they assert that, in the 15th of Edward III., "those who may have been deemed to have been in the reign of John distinguished as majores barones by the honour of a personal writ of summons, or by the extent and influence of their property, from the other tenants in chief of the crown, were now clearly become, with the earls and the newly created dignity of duke, a distinct body of men denominated peers of the land, and having distinct personal rights; while the other tenants in chief, whatsoever their rights may have been in the reign of John, sunk into the general mass." (p. 314.)

The appellation "peers of the land" is said to occur for the first time in 14 Edw. II. (p. 281), and we find them very distinctly in the proceedings against Bereford and others at the beginning of the next reign. They were, of course, entitled to trial by their own order. But whether all laymen summoned by particular writs to parliament were at that time considered as peers, and triable by the rest as such, must be questionable; unless we could assume that the writ of summons already ennobled the blood, which is at least not the opinion of the committee. If, therefore, the writ did not constitute an hereditary peer, nor tenure in chief by barony give a right to sit in parliament, we should have a difficulty in finding any determinate estate of nobility at all, exclusive of earls, who were, at all times and without exception, indisputably noble; an hypothesis manifestly paradoxical, and contradicted by history and law. If it be said that prescription was the only title, this may be so far granted that the majores barones had by prescription, antecedent to any statute or charter, been summoned to parliament: but this prescription would not be broken by the omission, through negligence or policy, of an individual tenant by barony in a few parliaments. The prescription was properly in favour of the class, the majores barones generally, and as to them it was perfect, extending itself in right, if not always in fact, to every one who came within its scope.

In the Third Report of the Lords' Committee, apparently drawn by the same hand as the Second, they "conjecture that after the establishment of the commons' house of parliament as a body by election, separate and distinct from the lords, all idea of a right to a writ of summons to parliament by reason of tenure had ceased, and that the dignity of baron, if not conferred by patent, was considered as derived only from the king's writ of summons." (Third Report, p. 226.) Yet they have not only found many cases of persons summoned by writ several times whose descendants have not been summoned, and hesitate even to approve the decision of the house on the Clifton barony in 1673, when it was determined that the claimant's ancestor, by writ of summons and sitting in parliament, was a peer, but doubt whether "even at this day the doctrine of that case ought to be considered as generally applicable, or may be limited by time and circumstances."[i] (p. 33.)

It seems, with much deference to more learned investigators, rather improbable that, either before or after the regular admission of the knights and burgesses by representation, and consequently the constitution of a distinct lords' house of parliament, a writ of summons could have been lawfully withheld at the king's pleasure from any one holding such lands by barony as rendered him notoriously one of the majores barones. Nor will this be much affected by arguments from the inexpediency or supposed anomaly of permitting the right of sitting as a peer of parliament to be transferred by alienation. The Lords' committee dwell at length upon them. And it is true that, in our original feudal constitution, the fiefs of the crown could not be alienated without its consent. But when this was obtained, when a barony had passed by purchase, it would naturally draw with it, as an incident of tenure, the privilege of being summoned to parliament, or, in language more accustomed in those times, the obligation of doing suit and service to the king in his high court. Nor was the alienee, doubtless, to be taxed without his own consent, any more than another tenant in capite. What incongruity, therefore, is there in the supposition that, after tenants in fee simple acquired by statute the power of alienation without previous consent of the crown, the new purchaser stood on the same footing in all other respects as before the statute? It is also much to be observed that the claim to a summons might be gained by some methods of purchase, using that word, of course, in the legal sense. Thus the husbands of heiresses of baronies were frequently summoned, and sat as tenants by courtesy after the wife's death; though it must be owned that the committee doubt, in their Third Report (p. 47), whether tenancy by courtesy of a dignity was ever allowed as a right. Thus, too, every estate created in tail male was a diversion of the inheritance by the owner's sole will from its course according to law. Yet in the case of the barony of Abergavenny, even so late as the reign of James I., the heir male, being in seisin of the lands, was called by writ as baron, to the exclusion of the heir general. Surely this was an authentic recognition, not only of baronial tenure as the foundation of a right to sit in parliament, but of its alienability by the tenant.[k]

If it be asked whether the posterity of a baron aliening the lands which gave him a right to be summoned to the king's court would be entitled to the privileges of peerage by nobility of blood, it is true that, according to Collins, whose opinion the committee incline to follow, there are instances of persons in such circumstances being summoned. But this seems not to prove anything to the purpose. The king, no one doubts, from the time of Edward I., used to summon by writ many who had no baronial tenure; and the circumstance of having alienated a barony could not render any one incapable of attending parliament by a different title. It is very hard to determine any question as to times of much irregularity; but it seems that the posterity of one who had parted with his baronial lands would not, in those early times, as a matter of course, remain noble. A right by tenure seems to exclude a right by blood; not necessarily, because two collateral titles may coexist, but in the principle of the constitution. A feudal principle was surely the more ancient; and what could be more alien to this than a baron, a peer, an hereditary counsellor, without a fief? Nobility, that is, gentility of birth, might be testified by a pedigree or a bearing; but a peer was to be in arms for the crown, to grant his own money as well as that of others, to lead his vassals, to advise, to exhort, to restrain the sovereign. The new theory came in by degrees, but in the decay of every feudal idea; it was the substitution of a different pride of aristocracy for that of baronial wealth and power; a pride nourished by heralds, more peaceable, more indolent, more accommodated to the rules of fixed law and vigorous monarchy. It is difficult to trace the progress of this theory, which rested on nobility of blood, but yet so remarkably modified by the original principle of tenure, that the privileges of this nobility were ever confined to the actual possessor, and did not take his kindred out of the class of commoners. This sufficiently demonstrates that the phrase is, so to say, catachrestic, not used in a proper sense; inasmuch as the actual seisin of the peerage as an hereditament, whether by writ or by patent, is as much requisite at present for nobility, as the seisin of an estate by barony was in the reign of Henry III.

Tenure by barony appears to have been recognised by the house of lords in the reign of Henry VI., when the earldom of Arundel was claimed as annexed to the "castle, honour, and lordship aforesaid." The Lords' committee have elaborately disproved the allegations of descent and tenure, on which this claim was allowed. (Second Report, p. 406-426.) But all with which we are concerned is the decision of the crown and of the house in the 11th year of Henry VI., whether it were right or wrong as to the particular facts of the case. And here we find that the king, by the advice and assent of the lords, "considering that Richard Fitzalan, &c., was seised of the castle, honour, and lordship in fee, and by reason of his possession thereof, without any other reason or creation, was earl of Arundel, and held the name, style, and honour of earl of Arundel, and the place and seat of earl of Arundel in parliament and councils of the king," &c., admits him to the same seat and place as his ancestors, earls of Arundel, had held. This was long afterwards confirmed by act of parliament (3 Car. I.), reciting the dignity of earl of Arundel to be real and local, &c., and settling the title on certain persons in tail, with provisions against alienation of the castle and honour. This appears to establish a tenure by barony in Arundel, as a recent determination had done in Abergavenny. Arundel was a very peculiar instance of an earldom by tenure. For we cannot doubt that all earls were peers of parliament by virtue of that rank, though, in fact, all held extensive lands of the crown. But in 1669 a new doctrine, which probably had long been floating among lawyers and in the house of lords, was laid down by the king in council on a claim to the title of Fitzwalter. The nature of a barony by tenure having been discussed, it was found "to have been discontinued for many ages, and not in being" (a proposition not very tenable, if we look at the Abergavenny case, even setting aside that of Arundel as peculiar in its character, and as settled by statute); "and so not fit to be received, or to admit any pretence of right to succession thereto." It is fair to observe that some eminent judges were present on this occasion. The committee justly say that "this decision" (which, after all, was not in the house of lords) "may perhaps be considered as amounting to a solemn opinion that, although in early times the right to a writ of summons to parliament as a baron may have been founded on tenure, a contrary practice had prevailed for ages, and that, therefore, it was not to be taken as then forming part of the constitutional law of the land." (p. 446.) Thus ended barony by tenure. The final decision, for such it has been considered, and recent attempts to revive the ancient doctrine have been defeated, has prevented many tedious investigations of claims to baronial descent, and of alienations in times long past. For it could not be pretended that every fraction of a barony gave a right to summons; and, on the other hand, alienations of parcels, and descents to coparceners, must have been common, and sometimes difficult to disprove. It was held, indeed, by some, that the caput baroniæ, or principal lordship, contained, as it were, the vital principle of the peerage, and that its owner was the true baron; but this assumption seems uncertain.

It is not very easy to reconcile this peremptory denial of peerage by tenure with the proviso in the recent statute taking away tenure by knight-service, and, inasmuch as it converts all tenure into socage, that also by barony, "that this act shall not infringe or hurt any title of honour, feudal or other, by which any person hath or may have right to sit in the lords' house of parliament, as to his or their title of honour, or sitting in parliament, and the privilege belonging to them as peers." (Stat. 12 Car. II. c. 24, s. 11.)

Surely this clause was designed to preserve the incident to baronial tenure, the privilege of being summoned to parliament, while it destroyed its original root, the tenure itself. The privy council, in their decision on the Fitzwalter claim, did not allude to this statute, probably on account of the above proviso, and seem to argue that, if tenure by barony was no longer in being, the privilege attached to it must have been extinguished also. It is, however, observable that tenure by barony is not taken away by the statute, except by implication. No act indeed can be more loosely drawn than this, which was to change essentially the condition of landed property throughout the kingdom. It literally abolishes all tenure in capite; though this is the basis of the crown's right to escheat, and though lands in common socage, which the act with a strange confusion opposes to socage in capite, were as much holden of the king or other lord as those by knight-service. Whether it was intended by the silence about tenure by barony to pass it over as obsolete, or this arose from negligence alone, it cannot be doubted that the proviso preserving the right of sitting in parliament by a feudal honour was introduced in order to save that privilege, as well for Arundel and Abergavenny as for any other that might be entitled to it.[m]

The equitable jurisdiction of the Court of Chancery has been lately traced, in some respects, though not for the special purpose mentioned in the text, higher than the reign of Richard II. This great minister of the crown, as he was at least from the time of the Conquest,[n] always till the reign of Edward III. an ecclesiastic of high dignity, and honourably distinguished as the keeper of the king's conscience, was peculiarly intrusted with the duty of redressing the grievances of the subject, both when they sprung from misconduct of the government, through its subordinate officers, and when the injury had been inflicted by powerful oppressors. He seems generally to have been the chief or president of the council, when it exerted that jurisdiction which we have been sketching in the text, and which will be the subject of another note. But he is more prominent when presiding in a separate tribunal as a single judge.

The Court of Chancery is not distinctly to be traced under Henry III. For a passage in Matthew Paris, who says of Radulfus de Nevil—"Erat regis fidelissimus cancellarius, et inconcussa columna veritatis, singulis sua jura, præcipue pauperibus, justè reddens et indilatè," may be construed of his judicial conduct in the council. This province naturally, however, led to a separation of the two powers. And in the reign of Edward I. we find the king sending certain of the petitions addressed to him, praying extraordinary remedies, to the chancellor and master of the rolls, or to either separately, by writ under the privy seal, which was the usual mode by which the king delegated the exercise of his prerogative to his council, directing them to give such remedy as should appear to be consonant to honesty (or equity, honestati). "There is reason to believe," says Mr. Spence (Equitable Jurisdiction, p. 335), "that this was not a novelty." But I do not know upon what grounds this is believed. Writs, both those of course and others, issued from Chancery in the same reign. (Palgrave's Essay on King's Council, p. 15.) Lord Campbell has given a few specimens of petitions to the council, and answers endorsed upon them, in the reign of Edward I., communicated to him by Mr. Hardy from the records of the Tower. In all these the petitions are referred to the chancellor for justice. The entry, at least as given by lord Campbell, is commonly so short that we cannot always determine whether the petition was on account of wrongs by the crown or others. The following is rather more clear than the rest:—"18 Edw. I. The king's tenants of Aulton complain that Adam Gordon ejected them from their pasture, contrary to the tenor of the king's writ. Resp. Veniant partes coram cancellario, et ostendat ei Adam quare ipsos ejecit, et fiat iis justitia." Another is a petition concerning concealment of dower, for which, perhaps, there was no legal remedy.

In the reign of Edward II. the peculiar jurisdiction of the chancellor was still more distinctly marked. "From petitions and answers lately discovered, it appears that during this reign the jurisdiction of the Court of Chancery was considerably extended, as the 'consuetudo cancellariæ' is often familiarly mentioned. We find petitions referred to the chancellor in his court, either separately, or in conjunction with the king's justices, or the king's serjeants; on disputes respecting the wardship of infants, partition, dower, rent-charges, tithes, and goods of felons. The chancellor was in full possession of his jurisdiction over charities, and he superintended the conduct of coroners. Mere wrongs, such as malicious prosecutions and trespasses to personal property, are sometimes the subject of proceedings before him; but I apprehend that those were cases where, from powerful combinations and confederacies, redress could not be obtained in the courts of common law." (Lives of Chanc. vol. i. p. 204.)

Lord Campbell, still with materials furnished by Mr. Hardy, has given not less than thirty-eight entries during the reign of Edward II., where the petition, though sometimes directed to the council, is referred to the chancellor for determination. One only of these, so far as we can judge from their very brief expression, implies anything of an equitable jurisdiction. It is again a case of dower, and the claimant is remitted to the Chancery; "et fiat sibi ibidem justitia, quia non potest juvari per communem legem per breve de dote." This case is in the Rolls of Parliament (i. 340), and had been previously mentioned by Mr. Bruce in a learned memoir on the Court of Star-Chamber. (Archæologia, xxv. 345.) It is difficult to say whether this fell within the modern rules of equity, but the general principle is evidently the same.

Another petition is from the commonalty of Suffolk to the council, complaining of false indictments and presentments in courts-leet. It is answered—"Si quis sequi voluerit adversus falsos indicatores et procuratores de falsis indictamentis, sequatur in Cancell. et habebit remedium consequens." Several other entries in this list are illustrative of the jurisdiction appertaining, in fact at least, to the council and the chancellor; and being of so early a reign form a valuable accession to those which later records have furnished to Sir Matthew Hale and others.

The Court of Chancery began to decide causes as a court of equity, according to Mr. Hardy, in the reign of Edward III., probably about 22 Edw. III. (Introduction to Close Rolls, p. 28.) Lord Campbell would carry this jurisdiction higher, and the instances already mentioned may be sufficient just to prove that it had begun to exist. It certainly seems no unnatural supposition that the great principle of doing justice, by which the council and the chancellor professed to guide their exercise of judicature, may have led them to grant relief in some of those numerous instances where the common law was defective or its rules too technical and unbending. But, as has been observed, the actual entries, as far as quoted, do not afford many precedents of equity. Mr. Hardy, indeed, suggests (p. 25) that the Curia Regis in the Norman period proceeded on equitable principles; and that this led to the removal of plaints into it from the county-court. This is, perhaps, not what we should naturally presume. The subtle and technical spirit of the Norman lawyers is precisely that which leads, in legal procedure, to definite and unbending rules; while in the lower courts, where Anglo-Saxon thanes had ever judged by the broad rules of justice, according to the circumstances of the case, rather than a strict line of law which did not yet exist, we might expect to find all the uncertainty and inconsistency which belongs to a system of equity, until, as in England, it has acquired by length of time the uniformity of law, but none at least of the technicality so characteristic of our Norman common law, and by which the great object of judicial proceedings was so continually defeated. This, therefore, does not seem to me a probable cause of the removal of suits from the county-court or court-baron to those of Westminster. The true reason, as I have observed in another place, was the partiality of these local tribunals. And the expense of trying a suit before the justices in eyre might not be very much greater than in the county-court.

I conceive, therefore, that the three supreme courts at Westminster proceeded upon those rules of strict law which they had chiefly themselves established; and this from the date of their separation from the original Curia Regis. But whether the king's council may have given more extensive remedies than the common law afforded, as early at least as the reign of Henry III., is what we are not competent, apparently, to affirm or deny. We are at present only concerned with the Court of Chancery. And it will be interesting to quote the deliberate opinion of a late distinguished writer, who has taken a different view of the subject from any of his predecessors.

"After much deliberation," says Lord Campbell, "I must express my clear conviction that the chancellor's equitable jurisdiction is as indubitable and as ancient as his common-law jurisdiction, and that it may be traced in a manner equally satisfactory. The silence of Bracton, Glanvil, Fleta, and other early juridical writers, has been strongly relied upon to disprove the equitable jurisdiction of the chancellor; but they as little notice his common-law jurisdiction, most of them writing during the subsistence of the Aula Regia; and they all speak of the Chancery, not as a court, but merely as an office for the making and sealing of writs. There are no very early decisions of the chancellors on points of law any more than of equity, to be found in the Year-books or old abridgments.... By 'equitable jurisdiction' must be understood the extraordinary interference of the chancellor, without common-law process or regard to the common-law rules of proceeding, upon the petition of a party grieved who was without adequate remedy in a court of common law; whereupon the opposite party was compelled to appear and to be examined, either personally or upon written interrogatories: and evidence being heard on both sides, without the interposition of a jury, an order was made secundum æquum et bonum, which was enforced by imprisonment. Such a jurisdiction had belonged to the Aula Regia, and was long exercised by parliament; and, when parliament was not sitting, by the king's ordinary council. Upon the dissolution of the Aula Regia many petitions, which parliament or the council could not conveniently dispose of, were referred to the chancellor, sometimes with and sometimes without assessors. To avoid the circuity of applying to parliament or the council, the petition was very soon, in many instances, addressed originally to the chancellor himself." (Lives of Chancellors, i. 7.)

In the latter part of Edward III.'s long reign this equitable jurisdiction had become, it is likely, of such frequent exercise, that we may consider the following brief summary by Lord Campbell as probable by analogy and substantially true, if not sustained in all respects by the evidence that has yet been brought to light:—"The jurisdiction of the Court of Chancery was now established in all matters where its own officers were concerned, in petitions of right where an injury was alleged to be done to a subject by the king or his officers in relieving against judgments in courts of law (lord C. gives two instances), and generally in cases of fraud, accident, and trust." (p. 291.)

In the reign of Richard II. the writ of subpœna was invented by John de Waltham, master of the rolls; and to this a great importance seems to have been attached at the time, as we may perceive by the frequent complaints of the commons in parliament, and by the traditionary abhorrence in which the name of the inventor was held. "In reality," says lord Campbell, "he first framed it in its present form when a clerk in Chancery in the latter end of the reign of Edward III.; but the invention consisted in merely adding to the old clause, Quibusdam certis de causis, the words 'Et hoc sub pœna centum librarum nullatenus omittas;' and I am at a loss to conceive how such importance was attached to it, or how it was supposed to have brought about so complete a revolution in equitable proceedings, for the penalty was never enforced; and if the party failed to appear, his default was treated, according to the practice prevailing in our own time, as a contempt of court, and made the foundation of compulsory process." (p. 296.)

The commons in parliament, whose sensitiveness to public grievances was by no means accompanied by an equal sagacity in devising remedies, had, probably without intention, vastly enhanced the power of the chancellor by a clause in a remedial act passed in the thirty-sixth year of Edward III., that, "If any man that feeleth himself aggrieved contrary to any of the articles above written, or others contained in divers statutes, will come into the Chancery, or any for him, and thereof make his complaint, he shall presently there have remedy by force of the said articles or statutes, without elsewhere pursuing to have remedy." Yet nothing could be more obvious than that the breach of any statute was cognizable before the courts of law. And the mischief of permitting men to be sued vexatiously before the chancellor becoming felt, a statute was enacted, thirty years indeed after this time (17 Ric. II. c. 6), analogous altogether to those in the late reign respecting the jurisdiction of the council, which, reciting that "people be compelled to come before the king's council, or in the Chancery, by writs grounded on untrue suggestions," provides that "the chancellor for the time being, presently after that such suggestions be duly found and proved untrue, shall have power to ordain and award damages, according to his discretion, to him which is so troubled unduly as aforesaid." "This remedy," lord Campbell justly remarks, "which was referred to the discretion of the chancellor himself, whose jurisdiction was to be controlled, proved, as might be expected, wholly ineffectual; but it was used as a parliamentary recognition of his jurisdiction, and a pretence for refusing to establish any other check on it." (p. 247.)

A few years before this statute the commons had petitioned (13 Ric. II., Rot. Parl. iii. 269) that the chancellor might make no order against the common law, and that no one should appear before the chancellor where remedy was given by the common law. "This carries with it an admission," as lord C. observes, "that a power of jurisdiction did reside in the chancellor, so long as he did not determine against the common law, nor interfere where the common law furnished a remedy. The king's answer, 'that it should continue as the usage had been heretofore,' clearly demonstrates that such an authority, restrained within due bounds, was recognised by the constitution of the country." (p. 305.)