will be worth while to discover the reason why a people, in antient
times, so jealous of their privileges, should to the one prince
explicitly give up, and quietly suffer the other to usurp this power,
so essential to a limited constitution. And the cause I take to be the
critical state the nation stood in with respect to religion. The bulk
of the people, glad to be delivered from the yoke of papal tyranny, and
dreading its restoration, were willing to arm their princes with a power
sufficient to protect their religion from foreign and domestic enemies;
and about religion indeed, this power was at first principally exercised,
on the footing of the papal supremacy being transferred to the king.
Their end was attained: Papists and Puritans were both kept under, and
happy in the enjoyment of their religion, they did not consider the
consequences; that this very weapon might be used, by a prince of another
stamp, to root out the very religion they were so fond of, and that, by
admitting this exertion of power in a matter of so high consequence, it
would naturally be used in others that appeared of less[248].
This was what accordingly happened. Proclamations on other points
were issued; and monopolies in trade were introduced. All monopolies,
undoubtedly, were not destructive to trade. Where a new traffick has been
discovered, and one that requires a large expence, and is liable to many
hazards, it is very reasonable that the first undertakers should have the
trade for a time confined to them, that, by the prospect of extraordinary
profit, they may be encouraged to promote and settle that commerce on a
solid bottom. Such monopolies, instead of hurting, tend to the promotion
of traffick, and are not without similar instances in former times, I
mean the kings of England appointing the towns for the staple; and had
Elizabeth and James confined themselves to the erection of the Russia,
the Turky, and East India companies, and that for a limited term, their
conduct would have deserved the highest applause; but that was far from
being the case. Monopolies were introduced in the antient, the most
common and most necessary commodities, to the great impoverishment of the
nation by the advance of prices.
At first it may seem strange that the wise Elizabeth, who, on all
occasions, seemed to have her people’s wealth and ease at heart, should
follow so destructive a course. But the great end of all her actions was
the securing herself on the throne, and one of the principal means she
used for that end, was the asking money from her people as seldom as
possible. Hence proceeded the long leases of the crown lands, at small
rents and large fines, and hence all the monopolies, which she sold to
the undertakers; but better had it been for her subjects, to have raised
the sums she wanted by an additional subsidy, or an easy tax, than to pay
to the monopolists what they had advanced, with their exorbitant profits
besides. What Elizabeth began out of policy, James continued, to supply
his profusion, to such an extraordinary degree, as disgusted his people,
provoked his parliament, and at last made himself ashamed, insomuch that
he revoked above twenty. And now no monopoly can be raised but by act of
parliament, except in case of a new invention, and that but for a short
term of years[249].
I come now to the _dispensing power_, another prerogative which the
Stuarts claimed, and which cost the last of them the throne. As no state
can subsist without mercy as well as justice, the king hath the power
of distributing this mercy, and exempting a convicted criminal from the
penalty of the law, but this is only where the conviction is at his
suit; thus the king can pardon a murderer convicted on an indictment
in the king’s name, but if he was convicted on an _appeal_ by the next
relation, the king cannot. The pardon belongs to the appellant. But there
is a wide difference between a _pardon_, that is remission of punishment
after the fact, and _dispensing_, which is giving a previous licence
to break the law. A general dispensation is, in fact, a repeal, and a
particular one is a repeal _quod hunc_, and therefore can belong only
to the legislature. The Roman emperors, and the popes, as legislators,
assumed this power, and Henry the Third, an apt pupil of his lord and
master the pope, introduced the practice into England. In his reign a
patent, with a _non obstante_ to any law whatsoever, was produced into
court before Roger de Thurkeby, and this honest judge was astonished
at the innovation, as Matthew Paris tells us in these words: _Quod cum
comperisset, ab alto ducens suspicia de prædictæ adjectionis appositione,
dixit, heu, heu hos utquid dies expectavimus, ecce, jam civilis curia
exemplo ecclesiasticæ, conquinatur, & a sulphureo fonte rivulus
intoxicatur_[250].
LECTURE XX.
_Lords of Parliament or Peers—Earls and Barons—The earlier
state of Baronies in England—The Barones majores &
minores—Barons by writ and by letters patent—The different
ranks of Nobility._
Next in rank to the king are the _lords_, that held immediately of him by
military service, as long as that species of tenure subsisted; and whom,
from their privilege of sitting in parliament in their own rights, are
frequently called _Lords of Parliament_, and in common speech are called
_Peers_, though that word properly signifies any _co-vassals_ to the same
lord. Thus every immediate vassal of a baron are peers of that barony,
and the accurate description of the great personages I am speaking of
is _Pares Regni_. Of these there were, antiently, two ranks only, in
England, _Earls_ and _Barons_. Indeed, abroad also, to speak properly,
there were but two likewise: for there was no difference in power and
privilege between the _dukes_ and _counts_, or _earls_. But as every earl
is a baron, and something more, and as it is a maxim of our law, that
every lord of parliament sits there by virtue of his barony, it will, in
the first place, be necessary to see what a baron is.
The word _baron_ of itself originally, did not, more than peer, signify
an immediate vassal of the king; for earls palatine had their barons,
that is, their immediate tenants; and, in old records, the citizens of
London are stiled barons, and so are the representatives of the cinque
ports called to this day. Baron, therefore, at first signified only
the immediate tenant of that superior whose baron he is said to be,
but by length of time it became restrained to those who, properly and
exactly speaking, were _barones regis & regni_, and even not to all of
these, but to such only as had manors and courts therein. For though,
by the principles of the feudal constitutions, every immediate military
tenant of the crown, however small his holding, was obliged to assist
the king with his advice, and entitled likewise to give or refuse his
assent to any new law or subsidy, that is, to attend in parliament.
This attendance was too heavy and burthensome upon such as had only one
or two knights fees, and could not be complied with without their ruin.
Hence arose the omission of issuing writs to such, and which, being for
their ease, they acquiesced in, attendance in parliament being considered
at that time as a burthen. Thus they lost that right they were entitled
to by the nature of their tenure, until the method was found out of
admitting them by representation. Hence arose the distinction between
_tenants by barony_, and _tenants by knight service in capite_ of the
king. The former were such military tenants of the king, as had estates
so considerable as qualified them, without inconvenience, to attend in
parliament, and who were therefore entitled to be summoned. The _quantum_
of this estate was regularly thirteen knights fees and one third, as
that of a count or earl was twenty; that is, as a knight’s fee was then
reckoned at twenty pounds _per annum_, the baron’s revenue was four
hundred marks, or two hundred sixty-six pounds thirteen shilling and
four-pence, and the earl’s four hundred pounds, answering in value of
money at present to about two thousand six hundred, and four thousand
pounds yearly[251].
Such was the nature of all the baronies of England for about two hundred
years after the conquest; and they are called _baronies by tenure_,
because the dignity and privileges were annexed to the lands they held;
and if these were alienated with the consent of the king (for without
that they could not) the barony went over to the alienée. The manner of
creating these barons was by investiture, that is, by arraying them with
a robe of state, and a cap of honour, and girding on a sword, as the
symbols of their dignity. Of these Matthew Paris tells us there were two
hundred and fifty in the time of Henry the Third, and while they stood
purely on this footing, it was not in the king’s power to encrease the
number of the baronies, though of barons perhaps he might. For as William
the Conqueror was obliged to gratify several of his great officers
according to the number of men they brought, with two or more baronies,
whenever these fell into the hands of the crown by escheat, either for
want of heirs, or by forfeiture, it was in the king’s power, and was his
interest, to divide them into separate hands. The same thing likewise
happened, when, by an intermarriage with an heiress, more baronies than
one came into the hands of a nobleman, and escheated to the crown[252].
But the number of these feudal baronies could not, strictly or properly
speaking, be encreased by the king; for they could be created only out of
lands, and there were no lands vacant to create new ones out of, for the
king’s demesnes were, in those days, unalienable. However, we find, at
the end of Henry the Third’s reign, and even in John’s, that the number
of baronies were actually encreased, and a distinction made between the
_barones majores_, and _minores_. The _majores_ were those who stood upon
the old footing of William, and had lands sufficient in law, namely, the
number of knights fees requisite. The _minores_ were such as held by part
of a barony; as when an old barony descended to, and was divided among
sisters; in which case, when the husband of the sister whom the king
pleased to name, was the baron of parliament; or else were newly carved
out of the old baronies that had fallen in by escheat; as supposing the
king had granted six knights fees of an old barony to one, to hold with
all the burthens, and to do the service of an entire barony, and the
remaining seven and one third to another, on the same terms. But the
attendance of these minor barons also, at length became too burthensom
for their circumstances, and many of them were glad to be excused. The
kings took then the power of passing by such as they thought unable, by
not sending them writs of summons, and John extended his prerogative even
to omit summoning such of the _majores_ as he imagined were inclined to
oppose him. This however at length he was obliged to give up: For in his
Magna Charta it is said, _Ad habendum commune consilium regni faciemus
summoneri archiepiscopos, episcopos, abbates, commites, & majores barones
regni sigillatim, per literas nostras_[253].
The _barones majores_ were then fully and plainly distinguished from
the _minores_, and I think it will not be doubted they were such as had
the full complement of knights fees that made up an antient barony;
and, accordingly, we find in 1255, when Henry the Third had neglected
summoning some of these, the others refused to enter on any business,
_Quia omnes, tunc temporis, non fuerunt, juxta tenorem Magnæ Chartæ suæ,
vocati, et ideo, sine paribus suis, tunc absentibus, nullum voluerunt
tunc responsum dare, vel auxilium concedere vel prestare_. No king since,
ever omitted to summon all the greater nobility, until Charles the First
was prevailed upon to forbid the sending a writ to the Earl of Bristol by
Buckingham, who was afraid of being accused by that nobleman; but on the
application of the house of lords, and their adjourning themselves from
day to day, and doing no business, the writ at last was issued.
In the reign of Henry the Third also, the king’s prerogative of summoning
or omitting the lesser barons was likewise ascertained by an act of
parliament since lost, as we find by these words from history: _Ille
enim rex (scilicet Henricus Tertius) post magnas perturbationes, &
enormes vexationes inter ipsum regem, Simonem de Morteforti, & alios
barones, motas & sopitas, statuit & ordinavit, quod omnes illi commites &
barones regni Angliæ, quibus ipse rex dignatus est brevia summonitionis
dirigere, venirent ad parlamentum suum; & non alii nisi, forte, dominus
rex alia illa brevia illis dirigere voluisset_[254]. And from henceforth
no nobleman could sit in parliament without a writ. But there was this
difference between the greater and the lesser barons, that the former had
a right to their writ _ex debito justitiæ_, to the latter it was a matter
of favour; but when summoned, they, being really barons, had the same
rights with the rest, though sitting, not by any inherent title, but by
virtue of the writ. The other lesser barons, who were generally omitted
to be summoned, by degrees mixed with the other kings tenants in capite,
and were thenceforth represented by the knights of the shires[255].
But these baronies by tenure being long since worn out among the laity,
it is proper to proceed to the two ways now in being of creating peers,
by _writ_, and by _letters patent_. It is the lord Coke’s opinion, and
in this he has been followed ever since, that a writ to any man, baron,
or no baron, to sit in parliament, if once he hath taken his seat in
pursuance thereof, gains a barony to him and the heirs of his body. And
though the law, principally on the authority of that great lawyer, is
now so settled, certainly it is comparatively but a novel opinion, and
very ill to be supported by reason. The words of the writ are, _Rex tali
salutem, quia de advisamento & assensu concilii nostri, pro quibusdam
arduis & urgentibus negotiis statum & defensionem regni nostri Angliæ
contingentibus, quoddam parlamentum nostrum apud Westmonast. tali die,
talis mensis, proximo futuro teneri ordinavimus, & ibidem vobiscum, ac
cum prelatis magnatibus & proceribus dicti regni nostri, colloquium
habere & tractatum; vobis in fide & ligeantia quibus nobis tenemini,
firmiter injungendo mandamus, quod consideratis dictorum negotiorum
auctoritate & periculis imminentibus, cessante excusatione quacunque,
dictis die & loco personaliter intersitis nobiscum, ac cum prelatis
magnatibus & proceribus super dictis negotiis tractaturi, vestrumque
consilium impensuri, & hoc sicut nos, & honorem nostrum, ac expeditionem
negotiorum prædictorum diligitis, nullatenus omittatis_[256].
That this writ must be obeyed, there is no doubt, for every subject is,
by his allegiance, obliged to assist the king with faithful counsel: But
what right the party summoned acquired thereby is the question. The words
are not only personal to him, but restricted likewise to a particular
place and time; and accordingly, in antient times, we find many persons
summoned to one parliament, omitted in the next, and summoned perhaps to
the third. There is not a word therein that hints at giving the least
right to an heir; and what reason can be assigned why a man, by this
writ, should gain an estate of inheritance in a peerage, when, in letters
patents, it is admitted that he gains only an estate for life, without
the word _heirs_. That antiently there was no such notion appears from
the summons to parliament, where frequently we find the grandfather
summoned, the father passed by, and the grandson afterwards summoned:
Nay, in the rolls there are instances of ninety-eight persons being
summoned a single time only, and neither themselves, nor any of their
posterity, ever taken notice of afterwards. Or, if we were to allow
that this writ created an inheritance, what reason can be given why it
should be an estate tail only, and be confined to the heirs of the body,
and not, as all other new inheritances, created generally, go to the
collateral heirs?
But, in order to discover plainly what privileges persons so called
by writ, had, or could obtain in those times, it will be proper to
distinguish them into three kinds of persons. First, then, they were
either some of the _minores barones by tenure_; and these, when called,
had certainly all the privileges of the greater; or else they were
not barons at all, but plain knights or gentlemen; and, with respect
to these, it is plain they had a right to deliberate, debate, and
advise. But the better opinion is, they had no right to vote, but were
assistants and advisers only, as the judges are at present; for it is
absurd to suppose that, in those times, when the commons were low, and
inconsiderable, and the barons were more powerful than the crown, these
latter should suffer their resolutions to be over-ruled at the pleasure
of the king, by his calling in such numbers as we find he often did,
which must have been the case, if all he summoned had votes. But these
two kinds of persons gained by their writ, or sitting in consequence
of it, originally, no farther right than to be present at that time.
However, by many of these persons and their heirs having been constantly
summoned, especially since Henry the Seventh’s reign, and the ancient
practice of omitting any who had been very frequently so, going into
disuse, the distinction between the greater and the lesser barons was
forgot, and that opinion prevailed which my lord Coke had adopted, and
which is now the law, that a man, having once sat in parliament in
pursuance of the king’s writ, acquires thereby an estate tail to him and
the heirs of his body[257].
There were yet another kind of persons, not peers, that might be summoned
by writ. These were the eldest sons of peers, to whom the father’s
barony must descend; and in such case, if the heir was called by the
name of a barony that was in his father, he was a baron to all intents
and purposes. But it seems very plain, that this was not a new creation
of a barony; for in that case the son so called should have been the
lowest peer, whereas the practice is the contrary. The eldest son of the
duke of Norfolk, called by the title of lord Mowbray, sat first baron,
because that barony of his father’s is the antientest in England. It
seems, therefore, that this was considered as a transfer of the antient
barony by the joint consent of the father and king, and the father still
continues to sit by the remaining peerage in him. Accordingly we find no
instance of a baron’s son sitting on such a summons, unless the father
had another barony by which he might sit. If the father indeed had a
higher title, that has been reckoned sufficient to support his seat,
though his only barony was transferred to the son. This then being no new
creation, but a temporary transfer only of an old peerage, it should
seem, that this title, when once merged in the greater by the father’s
death, should go according to the old limitation; but of late we find
them considered as new creations. On the death of the late earl of Derby,
Sir Edward Stanley, his sixth cousin, succeeded, and sits in parliament
as baron Strange, by Henry the Seventh’s creation; but an elder son of
a former earl of Derby, having been called by writ while his father was
living, the Duke of Athol, as his heir by the female line, sits by the
same title of baron Strange of king Charles the First’s creation.
The descent of these two kinds of baronies are directed by the rules
of the descent of other inheritances at common law, and consequently
females are capable of succession, but with two exceptions; first, that
half blood is no impediment, and consequently the half brother excludes
the sister; secondly, that the honour is not divisible, and therefore,
if there be two or more sisters, heiresses, the title is _in abeyance_,
that is, is suspended, until the king makes choice of one of them and her
heirs; though by constant usage the law seems to be verging fast to a
constant descent to the eldest[258].
The third method of creating peers is by _letters patent_, which is the
most usual, and esteemed the most advantageous way; because a peerage is
thereby created, though the new nobleman hath never taken his seat, which
is not the case of a barony by writ. As to the manner of these creations,
there has a notable difference intervened since the accession of Henry
the Seventh from what was the practice before Richard the Second. In his
eleventh year began this method of creating by patent, in favour of John
de Beauchamp, who, though summoned, never sat there, but was attainted
by the next parliament, and afterwards executed. But, the attainder
out of the case, his patent in law could never have been deemed valid,
because Michael de la Pole was the lord chancellor who affixed the seal
to it, which had been before taken from him by act of parliament, and
he declared incapable of ever having it again. This, then, was a single
and ineffectual attempt of that weak prince to create a new peer without
the assent of parliament, which was the usual way, above thirty having
been made so in that very reign. His successors were too wise to follow
this example; for every barony newly created, till the union of the
roses, which were about fourteen, were, every one of them, as appears on
the face of the patents, by authority of parliament, if we except two
or three; and even these, on a close examination, will appear not to be
new baronies, but _regrants_ of old feudal baronies by tenure, which,
undoubtedly, were all in the sole disposition of the king[259].
But Henry the Seventh, having trodden down all opposition, was fortunate
enough to carry the point Richard had vainly attempted, and acquired
for his successors that prerogative which they have since enjoyed, of
creating peers at pleasure. The descent of these titles, created by
patent, is directed by the words of the creation. If heirs are not
mentioned, it is only an estate for life; if to a man and heirs of his
body, females are not excluded, but the general way is, to the heirs
male of the body of the grantée, perhaps, with remainders over, and they
descend as other estates entailed. The case of the dutchy of Somerset was
singular. Edward Seymour having sons by two venters, was created duke of
Somerset, and his heirs male of his second marriage, remainder to his
heirs male by his first. This title continued near two hundred years in
the younger branch, until, upon its failure in the late duke of Somerset,
Sir Edward Seymour, the present duke, the heir by the prior marriage,
succeeded by virtue of the remainder.
In the case of lord Purbeck, in Charles the Second’s reign, it was
controverted whether a title could be extinguished, for as lord Purbeck
had surrendered his honour by fine to the king, and there it was
determined, and so the law now stands, contrary to many precedents that
were produced, that the title is inherent in the blood, and while that
remains uncorrupted, can by no means be extinguished by surrender or
otherwise, and this, generally, whether the peerage be created by patent
or by writ; for Purbeck’s was by writ. In case of a patent where the
dignity is expressly entailed, it is surely as reasonable that it should
be impossible for the possessor to destroy the entail, as in an estate
tail of land, created by the king, and yet in old times there had been
many instances to the contrary. I shall mention but two that happened in
this kingdom.
Sir Thomas Butler was created baron Cahir by Henry the Eighth to his
heirs general. His heirs male failed in his son Edmond, the second baron,
and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created
baron Cahir; but it being found that Sir Thomas left daughters, to one
of whom the title ought to have been assigned by the queen, one of them,
and the heir of the other, who was dead in 1685, bargained, sold, and
released to Sir Theobald and his assigns, their right and title to the
said honour. The other was the case of the honour of Kingsale. Charles
the First, apprehending the barony of Kingsale to be extinguished by
attainder, created Sir Dominick Sarsfield viscount Kingsale, but, upon
lord Kingsale’s petition, and proof made by him that his barony still
subsisted, it was ordered that Sarsfield should surrender his viscounty
of Kingsale, and be treated viscount of Kilmallock, with his former
precedence, which was accordingly done.