to rectify grants that had arisen from error; but in England there were,
in ancient times, many instances of such surrenders without error. They
were, indeed, generally made in order to obtain higher titles; and
therefore it is no wonder they passed _sub silentio_, and were never
disputed. But as to the old baronies by tenure that were annexed to
land, nothing is clearer than that, by the king’s consent, they might
be aliened or surrendered, notable instances of which happened in the
reign of Henry the Third. Andrew Giffard, baron of Pomfret, surrendered
to the king; and Simon de Montfort, a nobleman of large possessions in
France, had two sons by the heiress of the earldom of Leicester, in whose
right he was earl of Leicester, and, having a mind to settle his second
son in England, assigned the earldom over to him, as Selden says; or,
which comes to the same thing (for the eldest son was equally defeated)
surrendered it to the king, who granted it to the second, according to
Camden.
All noblemen are equally so, and, therefore, each others peers; but they
differ in rank and precedence. The ranks are five; _dukes_, _marquisses_,
_earls_, _viscounts_, _barons_. The first duke was created by Edward the
Third; the first marquiss, by Richard II.; the first viscount, by Henry
the Sixth. Though their dignities are now personal, and annexed to the
blood, yet as they were originally annexed to land, so much of the old
form remains, that, in their creation, they must be named from some place
in some county; though I do not apprehend it to be material at this day,
whether there really be such a place or not. With respect to the raising
a lord from a lower degree of dignity to a higher, I should observe,
that long before Henry the Seventh’s time, the king had the right solely
in himself, though it was frequently done in parliament; for this was
not adding to the number of the peers, but an exertion of the ancient
prerogative of his settling precedence according to his pleasure. This
continued in England till Henry the Eighth, by act of parliament, settled
it according to antiency, and it still continues in Ireland, though it
has not been exerted since Henry the Seventh’s time, when lord Kingsale,
a Yorkist, was obliged to change places with lord Athenry, a Lancastrian,
and from first became the second baron, which hath continued his rank,
till lately, that Athenry was created an earl[260].
LECTURE XXI.
_Earls or Counts as distinguished from Barons—The office of
Counts—Their condition after the conquest—Counties Palatine in
England—Counties Palatine in Ireland—Spiritual Peers—The trials
of Noblemen._
In my last lecture I treated of baronies, which are the lowest rank
of peerage, and of the right whereby this class of nobles sits in the
great council of the nation, and also of the various methods that have
prevailed in different ages of creating them; but before I have done with
the higher nobility, it will be necessary to say something of _earls_ or
_counts_ as distinguished from barons; for they differ from them, not
only in having a greater number of knights fees, and consequently having
a greater revenue, but in possessing also a more extensive jurisdiction.
The institution of _counts_, I observed in a former lecture, wherein
I treated of the progress of the feudal law, was not, originally, a
part of the feudal policy. They were, indeed, always chosen out of the
king’s companions, who resided in his house, and were therefore called
_comites_, but they were not set to preside over Germans, who were the
conquerors, but over such of the old inhabitants, Romans or Gauls, who
by a voluntary submission had retained their freedom, and who in every
respect, except bearing a share in the legislature or government, were on
an equal footing with the conquerors[261].
The office of these counts was threefold, to judge these freemen in
peace, to conduct them in war, to manage the king’s demesnes in their
respective districts, and to account with him for them and the profits
of his courts of justice; which were very considerable when all offences
were punished by fines. At the beginning they were temporary officers,
but they soon became fixed for life, and at length, towards the latter
end of the second, and in the beginning of the third race in France,
they got, through the weakness of the crown, estates in fee in their
counties; and either by grants of the kings, or by usurpation, converted
the profits they before accounted for to the crown, for their own use,
and held their courts in their own name. In short, they became petty
sovereigns, paying only homage, and the usual services of ward, marriage,
and relief to their supreme lord; and as such they coined money, levied
war against their neighbours, nay frequently against the king himself;
until Lewis the Eleventh found the means of humbling them, and brought
the crown out of tutelage, as the French express it[262].
The present state of Germany is an exact representation of what the
French and the other continental monarchies were in those days, except
that the kings had large countries, and multitudes of vassals immediately
subject to them; whereas the emperor hath now none. But in England
these lords, tho’ very powerful, never ascended to such a pinnacle of
grandeur. Their first constitution here we must refer to the time of the
division of England into counties, to which they had a reference, which
is generally ascribed to Alfred. Their power and office was exactly the
same with the counts on the continent in those early times, namely, to
judge and lead the freemen to war. For the greatest part of the lands of
England were at that time allodial, as is proved by Spelman, contrary to
the opinion of Sir Edward Coke; although, with him, it must be allowed,
that there were fiefs also before the Conquest, and that they were not
all introduced at that period. Till that time their office was only for
life, and they were known by various names, as _duces_, _comites_, and
_consules_ in Latin, _ealdermen_ in Saxon, and _earls_ in the Danish
tongue[263].
But William, having turned all the lands into feudal, was obliged to
put his earls on the same footing, that those on the continent were
in his time, and consequently to make them hereditary. However he and
his successors were careful not to give them such extensive powers
and revenues as they had abroad. The county courts were held in the
king’s name, neither were the earls allowed the whole profits of them,
two-thirds of them being reserved to the king; and in appearance to
ease them, who were often obliged to attend in council or in war, but
in reality to prevent the king’s being defrauded, and to prevent the
too great influence which their judging in person might acquire to them
in their districts, officers chosen by the people, and approved by the
king, were substituted to administer justice under the names of _vice
comites_, or sheriffs; these were to pay to the king the two-thirds, and
to the earl his third of the profits, which was in those times looked
upon as so incident to an earldom, as to pass with it, although express
words were wanting; so that in those times an earl and a county were
correlatives[264].
Each earl took his title from some one county, and the number of the one
could not exceed that of the other. King John, however, altered their
nature in some measure, and his example has been followed in depriving
the earl of the thirds of the county profits; for he created Henry de
Bohun earl of Hereford, and granted to him twenty pounds yearly, to be
received out of the third penny of the county in lieu thereof. But it is
plain that the justice and success of this invention was doubted of at
first, for John took a collateral security from the earl, that he should
never in his earldom claim any more than the twenty pounds expressly
granted him. These sums, so granted, are called _creation money_, and
were formerly expressly granted out of the third penny of the county; but
of late have been made payable at the Exchequer. Such was the nature of
the ancient earldoms that were by tenure, and had reference to counties.
The modern ones, that are merely honorary, and go with the blood, were
first made in parliament. Afterwards the king was allowed, by his sole
authority, to advance a baron to a higher rank; for that was not adding
to the number of the peers; but the creation of a bare gentleman a
peer at once hath only been practised since the accession of Henry the
Seventh[265].
Before I quit this head of earldoms, it will be proper to say somewhat
about _counties palatine_ which had extraordinary privileges, like
unto the counties and duchies abroad. The first was that of Chester,
erected by the Conqueror, in favour of his nephew Hugh Lupus, in these
words: _Totumque hunc comitatum tenendum sibi & hæredibus, ita libere ad
gladium, sicut ipse rex tenet Angliam ad coronam_. The effect of this
creation was to have _jura regalia_; for the earl palatine might pardon
treason, murder, and other offences, might make justices of assize, gaol
delivery, and of the peace; might create barons of his county palatine,
and confer knighthood. They had likewise all forfeitures, that arose by
the common law, or by any prior statute; but forfeitures arising from
statute, made after the erection of the county palatine, belonged to the
king. They had courts as the king had at Westminster, and out of their
chancery issued all writs, original and judicial. Neither did the king’s
writs run within the county palatine, except writs of error, which were
in the nature of appeals, or in cases where, otherwise, there would be
a failure of justice. All manner of indictments and processes were made
in the name, and every trespass was laid to be done against the peace of
him that had the county palatine. But these and some other privileges
have been taken away, and annexed to the crown, in whose name they must
now be; but the _teste_ of the writs is still in the name of the earl
palatine[266].
Of these counties palatine there are now in England four, Lancaster
united to the crown, Chester to the principality of Wales; Durham and
Ely, each belonging to the bishop of the place; but the privileges of
these two are going fast into disuse. But in this kingdom, (Ireland) for
the encouragement of adventurers, the whole country, as fast as it could
be reduced, was erected into palatinates, and very little, except the
cities, retained in the king’s hand. The making so many great lords, who
had frequent quarrels with each other, and that at such a distance from
the seat of government, was one great occasion of the slowness of the
settlement of the kingdom. For, to strengthen themselves, such of them
as resided here attached the natives to them, and taught them the use of
arms, and others that dwelt in England entirely neglected to send hither
any defence, so that, by the end of Edward the Third’s time, the Irish
had repossessed themselves of almost the whole kingdom, if we except five
or six counties; whereas in John’s reign they held not above half, and
that under homage and tribute, either to the king, or the lords, who had
grants from him.
I shall give a short detail of these palatinates, and an account of the
manner of their distinguishment. The present county of Gallway, under
the name of the county of Cannaught, was a palatinate in the De Burghs;
as was Ulster, first in De Courcy, then in De Lacy; and these two were
united by De Burgh’s marriage with Lacy’s daughter, and afterwards
descended to Lionel of Clarence’s daughter, who married the earl of
March, and, in the person of Edward the Fourth, merged in the crown.
In the same prince, likewise, merged that of Meath, which, being in
another branch of the Lacy’s, was divided into the eastern and western
between two daughters. The former came by descent to the house of March,
and so to Edward the Fourth. Strongbow had the grant of Leinster as a
Palatinate, which at length was divided into five distinct ones between
his grand-daughters, who being married to English noblemen, took no care
for the defence of the country, their titles, estates, and Jura Regalia
were taken from them by act of parliament, under Henry the Eighth.
Kildare, being in the hands of the earl of that name, escaped for a
little time, until he was attainted under the same king, where it ended;
for though his heir was restored to the title and estate by queen Mary,
it was with an express exception of the palatinate. The kingdom of Cork,
containing that county and the south of Kerry, was another palatinate,
granted to Fitz Stephen and Cogan, who made partition between them; and
on Fitz Stephen’s death without issue, his part escheated to the crown.
Cogan’s share should have gone to the Courcey’s and Carens, but they
could never obtain the possession of it; for the earl of Desmond got the
estate by purchase from a Cogan who pretended a right, and held it; so
this share of the palatinate fell likewise into disuse. Desmond, indeed,
had interest enough to get a new palatinate created for himself in the
county of Kerry, called Desmond, which for repeated rebellions was justly
forefeited to queen Elizabeth.
Edward the Third erected the palatinate of Tipperary in favour of the
earl of Ormond, who was grandson to Edward the First, which continued in
that family, with some interruptions, until the attainder of the late
duke in 1715. Thus by degrees the crown regained the power it had parted
with, and was at length enabled, though with difficulty, to reduce the
whole kingdom, which had been well nigh lost by means of such profuse
grants.
Besides the temporal peers, there are spiritual ones, that is the
bishops, and, they have seats in parliament, which antiently many
abbots also enjoyed. The original of this right was from the feudal
customs. The priests of the Germans, while they continued pagans, were
necessary attendants in their general assemblies, not only for advice,
but the benefit of their prayers and divinations. When these nations
embraced Christianity, they transferred the same veneration and honour
to their new instructors and bishops; and sometimes other churchmen of
eminence, though they held lands not by military tenure, but by what is
called _free alms_, were, in every nation as well as England, members
of the states of parliaments. But since the conquest they have begun to
sit by another right, namely by their baronies; the conqueror having
converted their estates in free alms into baronies, and to their great
mortification, subjected them to military service[267].
Upon this head several questions have been propounded, as how far they
are lords of parliament, and whether the clergy are a third estate of
the realm, and sit solely in that right. This is a question of some
importance, because if they make a distinct estate, no law would be good
to which the majority of them did not consent. Certain it is that in
France, the clergy made one estate, the nobility the second, the burghers
the third; and in Sweden the peasants make the fourth, all sitting in
distinct houses, the majority of each of which must concur. And therefore
I do believe, that when, in England, we talk of _three estates_, the
clergy, not the bishops alone, make one of them, contrary to the modern
opinion, that the king is the first estate, and the bishops and the
nobility the second; for the king is in no country reckoned one of the
estates, but the head of all. However from this no argument can be drawn
that the bishops should sit separately, or that a majority of them, as
representing the clergy, should concur.
As to sitting separately, it is pretty clear that, by the old law,
none were members of parliament, but the immediate military tenants of
the king, and that they sat all in one house, however their titles and
fortune might differ; being all equal as to rank, with respect to the
king, and all having the same rights. The division of parliament into two
houses was never known in Scotland, who, in all probability, modelled
their constitution from their neighbours; nor doth it appear in England
previous to Edward the First, but arose, probably, from the great barons
disdaining to sit, as equals with citizens and burgesses. For even, after
this time, they did not disdain to associate with the knights of the
shires, who represented the minor barons, and other military tenants, as
appears by many instances. But for a number of centuries past the gentry,
which were formerly considered as a lower noblesse, and are so abroad,
have been melted into one body with the other commoners[268].
If then there was originally but one house, and if, since the division,
the bishops have constantly sat in the house of peers, there can be no
pretence for any privilege for them more than for the body of barons or
earls. It is urged, likewise, that several valid acts of parliament were
passed without any bishop present; but this happened only in distracted
times; and, whoever might think it prudent or proper to absent themselves
at a particular season, it will hardly be said to be a good parliament
when they were not summoned; and if, at any time, they refused to attend,
there was no reason why the public business should stop, as they sat, not
as an independent constituent part of parliament, but each distinctly
for himself, in right of his barony. From these occasional and general
absences of theirs, an opinion grew up by degrees, and now is established
law, that there is a material difference between bishops and lay lords,
in respect to their nobility. In truth, that they are not peers to each
other, and consequently that a bishop cannot sit in judgment on the life
of a peer, neither is he to be tried by the peers, but by a jury of
commoners.
It is worth while to see how these opinions grew up; for, from the
original constitution, every bishop, being a baron by tenure, and having
a fee simple therein, had certainly as great right as other barons; but
the canon law having forbid any ecclesiastics being concerned in matters
of blood, and they being obliged by the common law to attend judgments
in parliament, were in a great streight between the two laws, how to act
when a peer was capitally accused. They at length obtained from Henry
the Second in the constitutions of Clarendon, the following allowance:
_Et sicut cæteri barones debent interesse judiciis curiæ, regis quousque
perveniatur ad diminutionem membrorum, vel ad mortem_; where the last
words are plainly an exception in their favour, in derogation to the
common law, on account of their peculiar circumstances under the canon.
However, as many questions might arise before it came to the last vote,
that might intirely influence the final determination, they used to
absent themselves totally, and this going on for ages, and the feudal
baronies wearing out, and all titles becoming fixed to the blood,
not to the land, they came to be considered as peers of a different
nature, because their blood did not succeed, and that which was first a
favourable permission, was construed a prohibition; and when this was
once established, it followed necessarily, that, not being peers to the
nobility by blood, they must be tried by commoners[269].
With respect to the trials of noblemen, now I have said so much on that
head, I shall observe, they were carried on in two different methods.
Either the accused person was tried in parliament, and then all the
temporal lords had voices, or he was tried by a jury of peers; that is
the king appointed twenty-four noblemen for that purpose: A law that has
proved fatal to many noblemen, who happened to fall under the displeasure
of the court. A commoner hath a right to prevent the sheriffs returning
a jury to try him, if he can shew a just exception to the sheriff; and
after the return is made, he can challenge a certain number for causes
known only to himself, and as many more as he can prove sufficient matter
of exception to. Such care did the law take of the lives of the commons,
but no exception lay for a peer to the king’s return. The law would not
suppose the least partiality in him, even in his own cause; neither would
it suspect that a peer could be biassed by any consideration from doing
strict justice, and therefore no challenge lay against him for any cause,
however strong and notorious; and the same confidence is the reason why
they give their votes, guilty or not guilty, not upon their oaths, but
upon their honours.
I can scarce imagine that this method of trial could have prevailed in
the times of the great power of the barons, when they often made the
crown to totter; neither have I been able to discover its beginning.
Certain it is that, in the reigns of the Plantagenets most, if not all
noblemen, were tried in full parliament; and as certain it is, that,
during the reigns of the Tudors and Stuarts, the other was universally
followed; insomuch that every nobleman was sure either to suffer or
escape, according as the court was at that time affected towards him.
At length, after many struggles, about 1695, the bill for regulating
trials for high treason and misprision of treason was passed; one clause
of which provides, that on the trial of peers, every lord who hath a
right to vote in parliament, shall be summoned, and have a right to
vote. Thus was the inconvenience attending the king’s naming the jury
remedied; but the law in the other point stands as before, that no peer
can be challenged. According to this law have all trials of Irish peers
proceeded since that time, though there is no act for that purpose in
this kingdom[270].
LECTURE XXII.
_The share of the Commons in the Legislature—The Armigeri or
Gentry—Knights Bannerets—The nature of Knighthood altered
in the reign of James I.—Knights Baronets—Citizens and
Burghers—The advancement of the power and reputation of the
Commons._
Having given a general idea of the lords, and their share of the
legislature, it will now be proper to descend, and see the several
classes of the lower rank, called _Commons_, and to examine what share
or influence they had formerly, or now enjoy, in the government. The
commoners may, in general, then, be divided into the _lesser nobility_,
or _gentry_, and the others, whom, for distinction sake, I shall call
the _lower commons_. For although, since the reign of Henry the Eighth,
many men of the best families, and some descended from the nobility,
have engaged in commerce, and thereby brought lustre to that order of
men, before that time all persons engaged in trade were held in as much
contempt by the gentry of England, as they are at present, by those of
any nation; and a gentleman who employed himself in hunting, or perhaps
serving the king, or some great lord, was looked upon to have degraded
himself.
The gentry were called _Armigeri_, because they fought on horseback,
in compleat armour, covered from head to foot; whereas the infantry’s
defensive arms were of a slighter kind, and no compleat covering. But we
are not to imagine that all who fought on horseback compleatly armed,
were gentry; for, in order to compleat their squadrons, men of the lower
ranks, who, by their strength of body, and military skill, were capable
of service, were admitted, but this did not make them gentlemen. Hence,
in our old histories, we find the _knights and esquires_, that is, the
real gentry, carefully distinguished from the _men at arms_. The peculiar
privilege of the gentry was the bearing on their shields certain marks,
to distinguish them from each other, and the men at arms called _Coats
of Arms_. At first they were personal privileges, and not inherent in
the blood, and the marks and rewards of some personal act of bravery
performed by the bearer; so we find in the romances, that a new knight
was to wear plain white, until, by some exploit, he merited a mark.
The general opinion is, that they were first introduced at the time of
the crusades, which I believe is pretty just, at least with respect to
our country: for the imperial crown of England had no arms before the
conquest. The Norman kings bore the arms of Normandy, _two leopards
passant_, to which Richard the First added that of Guienne, another
leopard passant, and so composed this English coat, in which, among other
alterations, the leopards have since been changed to lions[271].