[385] If a man was disseised of his land, he might enter upon the

disseisor and reinstate himself without course of law. In what case this

right of entry was taken away, or _tolled_, as it was expressed, by the

death or alienation of the disseisor, is a subject extensive enough to

occupy two chapters of Littleton. What pertains to our inquiry is, that

by an entry in the old law-books we must understand an actual

repossession of the disseisee, not a suit in ejectment, as it is now

interpreted, but which is a comparatively modern proceeding. The first

remedy, says Britton, of the disseisee is to collect a body of his

friends (recoiller amys et force), and without delay to cast out the

disseisors, or at least to maintain himself in possession along with

them. c. 44. This entry ought indeed, by 5 R. II. stat. i. c. 8, to be

made peaceably; and the justices might assemble the posse comitatus to

imprison persons entering on lands by violence (15 R. II. c. 2), but

these laws imply the facts that made them necessary.

[386] No lord, or other person, by 20 R. II. c. 3, was permitted to sit

on the bench with the justices of assise. Trials were sometimes overawed

by armed parties, who endeavoured to prevent their adversaries from

appearing. Paston Letters, vol. iii. p. 119.

[387] From a passage in the Paston Letters (vol. ii. p. 23) it appears

that, far from these acts being regarded, it was considered as a mark of

respect to the king, when he came into a county, for the noblemen and

gentry to meet him with as many attendants in livery as they could

muster. Sir John Paston was to provide twenty men in their livery-gowns,

and the duke of Norfolk two hundred. This illustrates the well-known

story of Henry VII. and the earl of Oxford, and shows the mean and

oppressive conduct of the king in that affair, which Hume has pretended

to justify.

In the first of Edward IV. it is said in the roll of parliament (vol. v.

p. 407), that, "by yeving of liveries and signets, contrary to the

statutes and ordinances made aforetyme maintenaunce of quarrels,

extortions, robberies, murders been multiplied and continued within this

reame, to the grete disturbaunce and inquietation of the same."

[388] Thus to select one passage out of many: Eodem anno (1332) quidam

maligni, fulti quorundam magnatum praesidio, regis adolescentiam

spernentes, et regnum perturbare intendentes, in tantam turbam

creverunt, nemora et saltus occupaverunt, ita quod toti regno terrori

essent. Walsingham, p. 132.

[389] I am aware that in many, probably a great majority of reported

cases, this word was technically used, where some unwarranted

conveyance, such as a feoffment by the tenant for life, was held to have

wrought a disseisin; or where the plaintiff was allowed, for the purpose

of a more convenient remedy, to feign himself disseised, which was

called disseisin by election. But several proofs might be brought from

the parliamentary petitions, and I doubt not, if nearly looked at, from

the Year-books, that in other cases there was an actual and violent

expulsion. And the definition of disseisin in all the old writers, such

as Britton and Littleton, is obviously framed upon its primary meaning

of violent dispossession, which the word had probably acquired long

before the more peaceable disseisins, if I may use the expression,

became the subject of the remedy by assise.

I would speak with deference of Lord Mansfield's elaborate judgment in

Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in

it appear to me rather too strongly stated; and particularly that the

acceptance of the disseisor as tenant by the lord was necessary to

render the disseisin complete; a condition which I have not found hinted

in any law-book. See Butler's note on Co. Litt. p. 330; where that

eminent lawyer expresses similar doubts as to Lord Mansfield's

reasoning. It may however be remarked, that constructive or elective

disseisins, being of a technical nature, were more likely to produce

cases in the Year-books than those accompanied with actual violence,

which would commonly turn only on matters of fact, and be determined by

a jury.

A remarkable instance of violent disseisin, amounting in effect to a

private war, may be found in the Paston Letters occupying most of the

fourth volume. One of the Paston family, claiming a right to Caistor

Castle, kept possession against the duke of Norfolk, who brought a large

force, and laid a regular siege to the place, till it surrendered for

want of provisions. Two of the besiegers were killed. It does not appear

that any legal measures were taken to prevent or punish this outrage.

[390] Difference between an Absolute and Limited Monarchy, p. 99.

[391] The manner in which these were obtained, in spite of law, may be

noticed among the violent courses of prerogative. By statute 2 E. III.

c. 2, confirmed by 10 E. III. c. 2, the king's power of granting pardons

was taken away, except in cases of homicide per infortunium. Another

act, 14 E. III. c. 15, reciting that the former laws in this respect

have not been kept, declares that all pardons contrary to them shall be

holden as null. This however was disregarded like the rest; and the

commons began tacitly to recede from them, and endeavoured to compromise

the question with the crown. By 27 E. III. stat. I, c. 2, without

adverting to the existing provisions, which may therefore seem to be

repealed by implication, it is enacted that in every charter of pardon,

granted at any one's suggestion, the suggestor's name and the grounds of

his suggestion shall be expressed, that if the same be found untrue it

may be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to

find the commons requesting that pardons might not be granted, as if the

subject were wholly, unknown to the law; the king protesting in reply

that he will save his liberty and regality, as his progenitors had done

before, but conceding some regulations, far less remedial than what were

provided already by the 27th of Edward II. Pardons make a pretty large

head in Brooke's Abridgment, and were undoubtedly granted without

scruple by every one of our kings. A pardon obtained in a case of

peculiar atrocity is the subject of a specific remonstrance in 23 H. VI.

Rot. Parl. vol. v. p. 111.

[392] Rot. Parl. vol. ii. p. 201. A strange policy, for which no

rational cause can be alleged, kept Wales and even Cheshire distinct

from the rest of the kingdom. Nothing could be more injurious to the

adjacent counties. Upon the credit of their immunity from the

jurisdiction of the king's courts, the people of Cheshire broke with

armed bands into the neighbouring counties, and perpetrated all the

crimes in their power. Rot. Parl. vol. iii. p. 81, 201, 440; Stat. 1 H.

IV. c. 18. As to the Welsh frontier, it was constantly almost in a state

of war, which a very little good sense and benevolence in any one of our

shepherds would have easily prevented, by admitting the conquered people

to partake in equal privileges with their fellow-subjects. Instead of

this, they satisfied themselves with aggravating the mischief by

granting legal reprisals upon Welshmen. Stat. 2 H. IV. c. 16. Welshmen

were absolutely excluded from bearing offices in Wales. The English

living in the English towns of Wales earnestly petition, 23 H. VI. Rot.

Parl. vol. v. p. 104, 154, that this exclusion may be kept in force.

Complaints of the disorderly state of the Welsh frontier are repeated as

late as 12 E. IV. vol. vi. p. 8.

It is curious that, so early as 15 E. II., a writ was addressed to the

earl of Arundel, justiciary of Wales, directing him to cause twenty-four

discreet persons to be chosen from the north, and as many from the south

of that principality, to serve in parliament. Rot. Parl. vol. i. p. 456.

And we find a similar writ in the 20th of the same king. Prynne's

Register, 4th part, p. 60. Willis says that he has seen a return to one

of these precepts, much obliterated, but from which it appears that

Conway, Beaumaris, and Carnarvon returned members. Notitia

Parliamentaria, vol. i. preface, p. 15.

[393] The statute of Winton was confirmed, and proclaimed afresh by the

sheriffs, 7 R. II. c. 6, after an era of great disorder.

[394] Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.

[395] 1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R.

II. c. 5. The institution excited a good deal of ill-will, even before

these strong acts were passed. Many petitions of the commons in the 28th

E. III., and other years, complain of it. Rot. Parl. vol. ii.

[396] Rot. Parl. vol. iii. p. 65. It may be observed that this act, 2 E.

II. c. 16, was not founded on a petition, but on the king's answer; so

that the commons were not real parties to it, and accordingly call it an

ordinance in their present petition. This naturally increased their

animosity in treating it as an infringement of the subject's right.

[397] Glanvil, 1. v. c. 5.

[398] According to Bracton, the bastard of a nief, or female villein,

was born in servitude; and where the parents lived on a villein

tenement, the children of a nief, even though married to a freeman, were

villeins, 1. iv. c. 21; and see Beames's translation of Glanvil, p. 109.

But Littleton lays down an opposite doctrine, that a bastard was

necessarily free; because, being the child of no father in the

contemplation of law, he could not be presumed to inherit servitude from

any one; and makes no distinction as to the parent's residence. Sect

188. I merely take notice of this change in the law between the reigns

of Henry III. and Edward IV. as an instance of the bias which the judges

showed in favour of personal freedom. Another, if we can rely upon it,

is more important. In the reign of Henry II. a freeman marrying a nief,

and settling on a villein tenement, lost the privileges of freedom

during the time of his occupation; legem terrae quasi nativus amittit.

Glanvil, 1. v. c. 6. This was consonant to the customs of some other

countries, some of which went further, and treated such a person for

ever as a villein. But, on the contrary, we find in Britton, a century

later, that the nief herself by such a marriage became free during the

coverture, c. 31. [Note XIII.]

[399] I must confess that I have some doubts how far this was law at the

epoch of Magna Charta. Glanvil and Bracton both speak of the _status

villenagii_, as opposed to that of liberty, and seem to consider it as a

civil condition, not a merely personal relation. The civil law and the

French treatise of Beaumanoir hold the same language. And Sir Robert

Cotton maintains without hesitation that villeins are not within the

29th section of Magna Charta, "being excluded by the word liber."

Cotton's Posthuma, p. 223. Britton, however, a little after Bracton,

says that in an action the villein is answerable to all men, and all men

to him. p. 79. And later judges, in favorem libertatis, gave this

construction to the villein's situation, which must therefore be

considered as the clear law of England in the fourteenth and fifteenth

centuries.

[400] Littleton, sect. 189, 190, speaks only of an appeal in the two

former cases; but an indictment is a fortiori; and he says, sect. 194,

that an indictment, though not an appeal, lies against the lord for

maiming his villein.

[401] Gurdon, on Courts Baron, p. 592, supposes the villein in gross to

have been the Lazzus or Servus of early times, a domestic serf, and of

an inferior species to the cultivator, or villein regardant. Unluckily

Bracton and Littleton do not confirm this notion, which would be

convenient enough; for in Domesday Book there is a marked distinction

between the Servi and Villani. Blackstone expresses himself inaccurately

when he says the villein in gross was annexed to the person of the lord,

and transferable by deed from one owner to another. By this means indeed

a villein regardant would become a villein in gross, but all villeins

were alike liable to be sold by their owners. Littleton, sect. 181.

Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that

villeins in gross were never numerous (Case of Somerset, Howell's State

Trials, vol. xx. p. 42): drawing this inference from the few cases

relative to them that occur in the Year-books. And certainly the form of

a writ de nativitate probanda, and the peculiar evidence it required,

which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s

argument, are only applicable to the other species. It is a doubtful

point whether a freeman could, in contemplation of law, become a villein

in gross; though his confession in a court of record, upon a suit

already commenced (for this was requisite), would estop him from

claiming his liberty; and hence Bracton speaks of this proceeding as a

mode by which a freeman might fall into servitude.

[402] [Note XIV.]

[403] Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172.

[404] Glanvil, 1. iv. c. 5.

[405] Dugdale's Warwickshire, apud Eden's State of the Poor, vol. i. p.

13. A passage in another local history rather seems to indicate that

some kind of delinquency was usually alleged, and some ceremony

employed, before the lord entered on the villein's land. In Gissing

manor, 39 E. III., the jury present, that W. G., a villein by blood, was

a rebel and ungrateful toward his lord, for which all his tenements were

seized. His offence was the having said that the lord kept four stolen

sheep in his field. Blomefield's Norfolk, vol. i. p. 114.

[406] Gurdon on Courts Baron, p. 574.

[407] Brooke's Abridgm. Tenant par copie, 1. By the extent-roll of the

manor of Brisingham in Norfolk, in 1254, it appears that there were then

ninety-four copyholders and six cottagers in villenage; the former

performing many, but determinate services of labour for the lord.

Blomefield's Norfolk, vol. i. p. 34.

[408] Littl. sect. 77. A copyholder without legal remedy may seem little

better than a tenant in mere villenage, except in name. But though, from

the relation between the lord and copyholder the latter might not be

permitted to sue his superior, yet it does not follow that he might not

bring his action against any person acting under the lord's direction,

in which the defendant could not set up an illegal authority; just as,

although no writ runs against the king, his ministers or officers are

not justified in acting under his command contrary to law. I wish this

note to be considered as correcting one in my first volume, p. 200,

where I have said that a similar law in France rendered the distinction

between a serf and a homme de poote little more than theoretical.

[409] See the rules of pleading and evidence in questions of villenage

fully stated in Mr. Hargrave's argument in the case of Somerset.

Howell's State Trials, vol. xx. p. 38.

[410] 1. v. c. v.

[411] Blomefleld's Norfolk, vol. i. p. 657. I know not how far this

privilege was supposed to be impaired by the statute 34 E. III. c. 11;

which however might, I should conceive, very well stand along with it.

[412] Stat. 23 E. III.

[413] [Note XV.]

[414] I have been more influenced by natural probabilities than

testimony in ascribing this effect to Wicliffe's innovations, because

the historians are prejudiced witnesses against him. Several of them

depose to the connexion between his opinions and the rebellion of 1382;

especially Walsingham, p. 288. This implies no reflection upon Wicliffe,

any more than the crimes of the anabaptists in Munster do upon Luther.

Every one knows the distich of John Ball, which comprehends the essence

of religious democracy:

"When Adam delved and Eve span,

Where was then the gentleman?"

The sermon of this priest, as related by Walsingham, p. 275, derives its

argument for equality from the common origin of the species. He is said

to have been a disciple of Wicliffe. Turner's Hist. of England, vol. ii.

p. 420.

[415] Stat. 1 R. II. c. 6; Rot. Parl. vol. iii. p. 21.

[416] 30 E. I., in Fitzherbert. Villenage, apud Lambard's Perambulation

of Kent, p. 632. Somner on Gavelkind, p. 72.

[417] Rymer, t. vii. p. 316, &c. The king holds this bitter language to

the villeins of Essex, after the death of Tyler and execution of the

other leaders had disconcerted them: Rustici quidem fuistis et estis, in

bondagio permanebitis, non ut hactenus, sed incomparabiliter viliori,

&c. Walsingham, p. 269.

[418] Rot. Parl. vol. iii. p. 100.

[419] 5 R II. c. 7. The words are, riot et rumour _n'autres semblables_;

rather a general way of creating a new treason; but panic puts an end to

jealousy.

[420] 12 R. II. c. 3.

[421] Rot. Parl. 15 R. II. vol. iii. p. 294, 296. The statute 7 H. IV.

c. 17, enacts that no one shall put his son or daughter apprentice to

any trade in a borough, unless he have land or rent to the value of

twenty shillings a year, but that any one may put his children to

school. The reason assigned is the scarcity of labourers in husbandry,

in consequence of people living in _Upland_ apprenticing their children.

[422] Blomefield's Norfolk, vol. iii. p. 571.

[423] Rymer, t. v. p. 44.

[424] Gurdon on Courts Baron, p. 596; Madox, Formulare Anglicanum, p.

420; Barrington on Ancient Statutes, p. 278. It is said in a modern book

that villenage was very rare in Scotland, and even that no instance

exists in records of an estate sold with the labourers and their

families attached to the soil. Pinkerton's Hist. of Scotland, vol. i. p.

147. But Mr. Chalmers, in his Caledonia, has brought several proofs that

this assertion is too general.

[425] Barrington, ubi supra, from Rymer.

[426] There are several later cases reported wherein villenage was

pleaded, and one of them as late as the 15th of James I. (Noy, p. 27.)

See Hargrave's argument, State Trials, vol. xx. p 41. But these are so

briefly stated, that it is difficult in general to understand them. It

is obvious, however, that judgment was in no case given in favour of the

plea; so that we can infer nothing as to the actual continuance of

villenage.

It is remarkable, and may be deemed by some persons a proof of legal

pedantry, that Sir E. Coke, while he dilates on the law of villenage,

never intimates that it was become antiquated.

[427] 8 H. V. c. 1.

[428] This prince having been sent to Antwerp, six commissioners were

appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107.

[429] Rymer, t. vi. p. 748.

[430] Matt. Paris, p. 243.

[431] Matt Westmonast. ap. Brady's History of England, vol. ii. p. 1.

[432] Rot. Parl vol. ii. p. 52.

[433] Rymer, t. vii. p. 171.

[434] Rot. Parl. vol. iv. p. 169.

[435] Rot. Parl. vol. iv. p. 174, 176.

[436] Ibid. p. 201.

[437] I follow the orthography of the roll, which I hope will not be

inconvenient to the reader. Why this orthography, from obsolete and

difficult, so frequently becomes almost modern, as will appear in the

course of these extracts, I cannot conjecture. The usual irregularity of

ancient spelling is hardly sufficient to account for such variations;

but if there be any error, it belongs to the superintendents of that

publication, and is not mine.

[438] Rot. Parl. 6 H. VI. vol. iv. p. 326.

[439] Rot. Parl. 8 H. VI. vol. iv. p. 336.

[440] Rot. Parl. vol. v. p. 241.

[441] Paston Letters, vol. i. p. 81. The proofs of sound mind given in

this letter are not very decisive, but the wits of sovereigns are never

weighed in golden scales.

[442] This may seem an improper appellation for what is usually termed a

battle, wherein 5000 men are said to have fallen. But I rely here upon

my faithful guide, the Paston Letters, p. 100, one of which, written

immediately after the engagement, says that only sixscore were killed.

Surely this testimony outweighs a thousand ordinary chroniclers. And the

nature of the action, which was a sudden attack on the town of St.

Albans, without any pitched combat, renders the larger number

improbable. Whethamstede, himself abbot of St. Albans at the time, makes

the duke of York's army but 3000 fighting men. p. 352. This account of

the trifling loss of life in the battle of St. Albans is confirmed by a

contemporary letter, published in the Archaeologia (xx. 519). The whole

number of the slain was but forty-eight, including, however, several

lords.

[443] See some account of these in Paston Letters, vol. i. p. 114.

[444] Rot. Parl. vol. v. p. 284-290.

[445] Hall, p. 210.

[446] The ill-will of York and the queen began as early as 1449, as we

learn from an unequivocal testimony, a letter of that date in the Paston

collection, vol. i. p. 26.

[447] Upon this great question the fourth discourse in Sir Michael

Foster's Reports ought particularly to be read.

[448] Hale's Pleas of the Crown, vol. i. p. 61, 101 (edit. 1736).

[449] Rot. Parl. vol. v. p. 351.

[450] Id. p. 375. This entry in the roll is highly interesting and

important. It ought to be read in preference to any of our historians.

Hume, who drew from inferior sources, is not altogether accurate. Yet

one remarkable circumstance, told by Hall and other chroniclers, that

the duke of York stood by the throne, as if to claim it, though omitted

entirely in the roll, is confirmed by Whethamstede, abbot of St. Albans,

who was probably then present. (p. 484, edit. Hearne.) This shows that

we should only doubt, and not reject, unless upon real grounds of

suspicion, the assertions of secondary writers.

[451] The abbey of St. Albans was stripped by the queen and her army

after the second battle fought at that place, Feb. 17, 1461; which

changed Whethamstede the abbot and historiographer from a violent

Lancastrian into a Yorkist. His change of party is quite sudden, and

amusing enough. See too the Paston Letters, vol. i. p. 206. Yet the

Paston family were originally Lancastrian, and returned to that side in

1470.

[452] There are several instances of violence and oppression apparent on

the rolls during this reign, but not proceeding from the crown. One of a

remarkable nature (vol. v. p. 173) was brought forward to throw an odium

on the duke of Clarence, who had been concerned in it. Several passages

indicate the character of the duke of Gloucester.

[453] See in Cro. Car. 120, the indictment against Burdett for

compassing the king's death, and for that purpose conspiring with Stacie

and Blake to calculate his nativity and his son's, ad sciendum quando

iidem rex et Edwardus ejus filius morientur: Also for the same end

dispersing divers rhymes and ballads de murmurationibus, seditionibus et

proditoriis excitationibus, factas et fabricatas apud Holbourn, to the

intent that the people might withdraw their love from the king and

desert him, ac erga ipsum regem insurgerent, et guerram erga ipsum regem

levarent, ad finalem destructionem ipsorum regis ac domini principis,

&c.

[454] Rot. Parl. vol. vi. p. 193.

[455] The rolls of Henry VII.'s first parliament are full of an absurd

confusion in thought and language, which is rendered odious by the

purposes to which it is applied. Both Henry VI. and Edward IV. are

considered as lawful kings; except in one instance, where Alan

Cotterell, petitioning for the reversal of his attainder, speaks of

Edward, "late called Edward IV." (vol. iv. p. 290.) But this is only the

language of a private Lancastrian. And Henry VI. passes for having been

king during his short restoration in 1470, when Edward had been nine

years upon the throne. For the earl of Oxford is said to have been

attainted "for the true allegiance and service he owed and did to Henry

VI. at Barnet field and otherwise." (p. 281.) This might be reasonable

enough on the true principle that allegiance is due to a king _de

facto_; if indeed we could determine who was the king de facto on the

morning of the battle of Barnet. But this principle was not fairly

recognised. Richard III. is always called, "in deed and not in right

king of England." Nor was this merely founded on his usurpation as

against his nephew. For that unfortunate boy is little better treated,

and in the act of resumption, 1 H. VII., while Edward IV. is styled

"late king," appears only with the denomination of "Edward his son, late

called Edward V." (p. 336.) Who then was king after the death of Edward

IV.? And was his son really illegitimate, as an usurping uncle

pretended? Or did the crime of Richard, though punished in him, enure to

the benefit of Henry? These were points which, like the fate of the

young princes in the Tower, he chose to wrap in discreet silence. But

the first question he seems to have answered in his own favour. For

Richard himself, Howard duke of Norfolk, Lord Lovel, and some others,

are attainted (p. 276) for "traiterously intending, compassing, and

imagining" the death of Henry; of course before or at the battle of

Bosworth; and while his right, unsupported by possession, could have

rested only on an hereditary title which it was an insult to the nation

to prefer. These monstrous proceedings explain the necessity of that

conservative statute to which I have already alluded, which passed in

the eleventh year of his reign, and afforded as much security for men

following the plain line of rallying round the standard of their country

as mere law can offer. There is some extraordinary reasoning upon this

act in Carte's History (vol. ii. p. 844), for the purpose of proving

that the adherents of George II. would not be protected by it on the

restoration of the true blood.

[456] Difference of Absolute and Limited Monarchy, p. 83.

[457] Rot. Parl. vol. vi. p. 241.

[458] 1 R. III. c. 2.

[459] The long-debated question as to the murder of Edward and his

brother seems to me more probably solved on the common supposition that

it was really perpetrated by the orders of Richard, than on that of

Walpole, Carte, Henry, and Laing, who maintain that the duke of York, at

least, was in some way released from the Tower, and reappeared as Perkin

Warbeck. But a very strong conviction either way is not readily

attainable.

NOTES TO CHAPTER VIII.

(PART III.)

NOTE I. Page 5.

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.)

NOTE II. Page 9.

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 "universae

personae regni" must be restrained to ecclesiastics; and the only words

which can be important in the present discussion are "sicut barones

caeteri." "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,[460] 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 quae 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 _secundae

dignitatis barones_ at Northampton have been but tenants _in capite_

holding fiefs by some line or other distinguishable from a superior

class?[461]

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 devote,

et alii quamplurimi; applaudentibus clero et populo, &c., publice fuimus

in regem Angliae 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.[462]

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 quaedam

capitula in priori carta continebantur, quae gravia et dubitabilia

videbantur, _sicut de scutagiis et auxiliis assidendis_ ... placuit

supra-dictis praelatis et magnatibus ea esse in respectu, quousque

plenius consilium habuerimus, et tunc faciemus plurissime, tam de his

quam de aliis quae occurrerint emendanda, quae 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.

NOTE III. Page 19.

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.[463]

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.

NOTE IV. Page 21.

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.[464] 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,[465] 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 Archaeological 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.]

NOTE V. Page 26.

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 haec omnes fere episcopi, abbates, et

magnates Angliae, quasi cives et municipes sunt urbis Lundoniae; sua ibi

habentes aedificia praeclara; ubi se recipiunt, ubi divites impensas

faciunt, ad concilia, ad conventus celebres in urbem evocati, a 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.[466] But he seems

to have made unwarrantable assumptions where his data were deficient. M.

Guerard, on the other hand (Documens Inedits, 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.[467]

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.

NOTE VI. Page 32.

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 communaute 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.

NOTE VII. Page 35.

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.

NOTE VIII. Page 42.

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.

NOTE IX. Page 124.

Writs are addressed in 11th of Edw. II. "comitibus, majoribus baronibus,

et praelatis," 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."[468] (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.[469]

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 baroniae_, 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.[470]

NOTE X. Page 142.

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,[471] 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, praecipue pauperibus, juste reddens et indilate," 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

cancellariae' 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. (Archaeologia, 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 aequum 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 _subpoena_ 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 poena 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.)

The act of 17 Ric. II. seems to have produced a greater regularity in

the proceedings of the court, and put an end to such hasty interference,

on perhaps verbal suggestions, as had given rise to this remedial

provision. From the very year in which the statute was enacted we find

bills in Chancery, and the answers to them, regularly filed; the grounds

of demanding relief appear, and the chancellor renders himself in every

instance responsible for the orders he has issued, by thus showing that

they came within his jurisdiction. There are certainly many among the

earlier bills in Chancery, which, according to the statute law and the

great principle that they were determinable in other courts, could not

have been heard; but we are unable to pronounce how far the allegation

usually contained or implied, that justice could not be had elsewhere,

was founded on the real circumstances. A calendar of these early

proceedings (in abstract) is printed in the Introduction to the first

volume of the Calendar of Chancery Proceedings in the Reign of

Elizabeth, and may also be found in Cooper's Public Records, i. 356.

The struggle, however, in behalf of the common law was not at an end. It

is more than probable that the petitions against encroachments of

Chancery, which fill the rolls under Henry IV., Henry V., and in the

minority of Henry VI., emanated from that numerous and jealous body

whose interests as well as prejudices were so deeply affected. Certain

it is that the commons, though now acknowledging an equitable

jurisdiction, or rather one more extensive than is understood by the

word "equitable," in the greatest judicial officer of the crown, did not

cease to remonstrate against his transgression of these boundaries. They

succeeded so far, in 1436, as to obtain a statute (15 Hen. VI. c. 4) in

these words:--"For that divers persons have before this time been

greatly vexed and grieved by writs of _subpoena_, purchased for

matters determinable by the common law of this land, to the great damage

of such persons so vexed, in suspension and impediment of the common law

as aforesaid; Our lord the king doth command that the statutes thereof

made shall be duly observed, according to the form and effect of the

same, and that no writ of _subpoena_ be granted from henceforth until

surety be found to satisfy the party so grieved and vexed for his

damages and expenses, if so be that the matter cannot be made good which

is contained in the bill." It was the intention of the commons, as

appears by the preamble of this statute, and more fully by their

petition in Rot. Parl. (iv. 101), that the matters contained in the bill

on which the _subpoena_ was issued should be not only true in

themselves, but such as could not be determined at common law. But the

king's answer appears rather equivocal.

The principle seems nevertheless to have been generally established,

about the reign of Henry VI., that the Court of Chancery exercises

merely a remedial jurisdiction, not indeed controllable by courts of

law, unless possibly in such circumstances as cannot be expected, but

bound by its general responsibility to preserve the limits which ancient

usage and innumerable precedents have imposed. It was at the end of this

reign, and not in that of Richard II., according to the writer so often

quoted, that the great enhancement of the chancellor's authority, by

bringing feoffments to uses within it, opened a new era in the history

of our law. And this the judges brought on themselves by their narrow

adherence to technical notions. They now began to discover this; and

those of Edward IV., as lord Campbell well says, were "very bold men,"

having repealed the statute _de donis_ by their own authority in

Taltarum's case--a stretch of judicial power beyond any that the Court

of Chancery had ventured upon. They were also exceedingly jealous of

that court; and in one case, reported in the Year-books (22 Edw. IV.

37), advised a party to disobey an injunction from the Court of

Chancery, telling him that, if the chancellor committed him to the

Fleet, they would discharge the prisoner by _habeas corpus_. (Lord

Campbell, p. 394.) The case seems to have been one where, in modern

times, no injunction would have been granted, the courts of law being

competent to apply a remedy.

NOTE XI. Page 145.