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.

This intricate subject has been illustrated, since the first publication of these volumes, in an Essay upon the original Authority of the King's Council, by Sir Francis Palgrave (1834), written with remarkable perspicuity and freedom from diffusiveness. But I do not yet assent to the judgment of the author as to the legality of proceedings before the council, which I have represented as unconstitutional, and which certainly it was the object of parliament to restrain.

"It seems," he says, "that in the reign of Henry III. the council was considered as a court of peers within the terms of Magna Charta; and before which, as a court of original jurisdiction, the rights of tenants holding _in capite_ or by barony were to be discussed and decided, and it unquestionably exercised a direct jurisdiction over all the king's subjects" (p. 34). The first volume of Close Rolls, published by Mr. Hardy since Sir F. Palgrave's Essay, contains no instances of jurisdiction exercised by the council in the reign of John. But they begin immediately afterwards, in the minority of Henry III.; so that we have not only the fullest evidence that the council took on itself a coercive jurisdiction in matters of law at that time, but that it had not done so before: for the Close Rolls of John are so full as to render the negative argument satisfactory. It will, of course, be understood that I take the facts on the authority of Mr. Hardy (Introduction to Close Rolls, vol. ii.), whose diligence and accuracy are indisputable. Thus this exercise of judicial power began immediately after the Great Charter. And yet, if it is to be reconciled with the twenty-ninth section, it is difficult to perceive in what manner that celebrated provision for personal liberty against the crown, which has always been accounted the most precious jewel in the whole coronet, the most valuable stipulation made at Runnymede, and the most enduring to later times, could merit the fondness with which it has been regarded. "Non super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae." If it is alleged that the jurisdiction of the king's council was the law of the land, the whole security falls to the ground and leaves the grievance as it stood, unredressed. Could the judgment of the council have been reckoned, as Sir P. Palgrave supposes, a "judicium parium suorum," except perhaps in the case of tenants in chief? The word is commonly understood of that trial _per pais_ which, in one form or another, is of immemorial antiquity in our social institutions.

"Though this jurisdiction," he proceeds, "was more frequently called into action when parliament was sitting, still it was no less inherent in the council at all other times; and until the middle of the reign of Edward III. no exception had ever been taken to the form of its proceedings." He subjoins indeed in a note, "Unless the statute of 5 Edw. III. c. 9, may be considered as an earlier testimony against the authority of the council. This, however, is by no means clear, and there is no corresponding petition in the parliament roll from which any further information could be obtained" (p. 34).

The irresistible conclusion from this passage is, that we have been wholly mistaken in supposing the commons under Edward III. and his successors to have resisted an illegal encroachment of power in the king's ordinary council, while it had in truth been exercising an ancient jurisdiction, never restrained by law and never complained of by the subject. This would reverse our constitutional theory to no small degree, and affect so much the spirit of my own pages, that I cannot suffer it to pass, coming on an authority so respectable, without some comment. But why is it asserted that this jurisdiction was inherent in the council? Why are we to interpret Magna Charta otherwise than according to the natural meaning of the words and the concurrent voice of parliament? The silence of the commons in parliament under Edward II. as to this grievance will hardly prove that it was not felt, when we consider how few petitions of a public nature, during that reign, are on the rolls. But it may be admitted that they were not so strenuous in demanding redress, because they were of comparatively recent origin as an estate of parliament, as they became in the next long reign, the most important, perhaps, in our early constitutional history.

It is doubted by Sir F. Palgrave whether the statute of 5 Edw. III. c. 9, can be considered as a testimony against the authority of the council. It is, however, very natural so to interpret it, when we look at the subsequent statutes and petitions of the commons, directed for more than a century to the same object. "No man shall be taken," says lord Coke (2 Inst. 46), "that is, restrained of liberty, by petition or suggestion to the king or to his council, unless it be by indictment or presentment of good and lawful men, where such deeds be done. This branch and divers other parts of this act have been wholly explained by divers acts of parliament, &c., quoted in the margent." He then gives the titles of six statutes, the first being this of 5 Edw. III. c. 9. But let us suppose that the petition of the commons in 25 Edw. III. demanded an innovation in law, as it certainly did in long-established usage. And let us admit what is justly pointed out by Sir F. Palgrave, that the king's first answer to their petition is not commensurate to its request, and reserves, though it is not quite easy to see what, some part of its extraordinary jurisdiction.[472] Still the statute itself, enacted on a similar petition in a subsequent parliament, is explicit that "none shall be taken by petition or suggestion to the king or his council, unless it be by indictment or presentment" (in a criminal charge), "or by writ original at the common law" (in a civil suit), "nor shall be put out of his franchise of freehold, unless he have been duly put to answer, and forejudged of the same by due course of law."

Lord Hale has quoted a remarkable passage from a Year-book, not long after these statutes of 25 Edw. III. and 28 Edw. III., which, if Sir F. Palgrave had not overlooked, he would have found not very favourable to his high notions of the king's prerogative in council. "In after ages," says Hale, "the constant opinion and practice was to disallow any reversals of judgment by the council, which appears by the notable case in Year-book, 39 Edw. III. 14." (Jurisdiction of Lords' House, p. 41.) It is indeed a notable case, wherein the chancellor before the council reverses a judgment of a court of law. "Mes les justices ne pristoient nul regard al reverser devant le council, par ceo que ce ne fust place ou jugement purroit estre reverse." If the council could not exercise this jurisdiction on appeal, which is not perhaps expressly taken away by any statute, much less against the language of so many statutes could they lawfully entertain any original suit. Such, however, were the vacillations of a motley assembly, so steady the perseverance of government in retaining its power, so indefinite the limits of ancient usage, so loose the phrases of remedial statutes, passing sometimes by their generality the intentions of those who enacted them, so useful, we may add, and almost indispensable, was a portion of those prerogatives which the crown exercised through the council and chancery, that we find soon afterwards a statute (37 Edw. III. c. 18), which recognises in some measure those irregular proceedings before the council, by providing only that those who make suggestions to the chancellor and great council, by which men are put in danger against the form of the charter, shall give security for proving them. This is rendered more remedial by another act next year (38 Edw. III. c. 9), which, however, leaves the liberty of making such suggestions untouched. The truth is, that the act of 25 Edw. III. went to annihilate the legal and equitable jurisdiction of the Court of Chancery--the former of which had been long exercised, and the latter was beginning to spring up. But the 42 Edw. III. c. 3, which seems to go as far as the former in the enacting words, will be found, according to the preamble, to regard only criminal charges.

Sir Francis Palgrave maintains that the council never intermitted its authority, but on the contrary "it continually assumed more consistency and order. It is probable that the long absences of Henry V. from England invested this body with a greater degree of importance. After every minority and after every appointment of a select or extraordinary council by authority of the legislature, we find that the ordinary council acquired a fresh impulse and further powers. Hence the next reign constitutes a new era" (p. 80). He proceeds to give the same passage which I have quoted from Rot. Parl. 8 Hen. VI., vol. v. p. 343, as well as one in an earlier parliament (2 Hen. VI. p. 28). But I had neglected to state the whole case where I mention the articles settled in parliament for the regulation of the council. In the first place, this was not the king's ordinary council, but one specially appointed by the lords in parliament for the government of the realm during his minority. They consisted of certain lords spiritual and temporal, the chancellor, the treasurer, and a few commoners. These commissioners delivered a schedule of provisions "for the good and the governance of the land, which the lords that be of the king's council desireth" (p. 28). It does not explicitly appear that the commons assented to these provisions; but it may be presumed, at least in a legal sense, by their being present and by the schedule being delivered into parliament, "baillez en meme le parlement." But in the 8 Hen. VI., where the same provision as to the jurisdiction of this extraordinary council is repeated, the articles are said, after being approved by the lords spiritual and temporal, to have been read "coram domino rege in eodem parliamento, in presentia trium regni statuum" (p. 343). It is always held that what is expressly declared to be done in presence of all the estates is an act of parliament.

We find, therefore, a recognition of the principle which had always been alleged in defence of the ordinary council in this parliamentary confirmation--the principle that breaches of the law, which the law could not, through the weakness of its ministers, or corruption, or partiality, sufficiently repress, must be reserved for the strong arm of royal authority. "Thus," says Sir Francis Palgrave, "did the council settle and define its principles and practice. A new tribunal was erected, and one which obtained a virtual supremacy over the common law. The exception reserved to their 'discretion' of interfering wherever their lordships felt too much might on one side, and too much unmight on the other, was of itself sufficient to embrace almost every dispute or trial" (p. 81).

But, in the first place, this latitude of construction was not by any means what the parliament meant to allow, nor could it be taken, except by wilfully usurping powers never imparted; and, secondly, it was not the ordinary council which was thus constituted during the king's minority; nor did the jurisdiction intrusted to persons so specially named in parliament extend to the regular officers of the crown. The restraining statutes were suspended for a time in favour of a new tribunal. But I have already observed that there was always a class of cases precisely of the same kind as those mentioned in the act creating this tribunal, tacitly excluded from the operation of those statutes, wherein the coercive jurisdiction of the king's ordinary council had great convenience, namely, where the course of justice was obstructed by riots, combinations of maintenance, or overawing influence. And there is no doubt that, down to the final abolition of the Court of Star Chamber (which was no other than the _consilium ordinarium_ under a different name), these offences were cognizable in it, without the regular forms of the common law.[473]

"From the reign of Edward IV. we do not trace any further opposition to the authority either of the chancery or of the council. These courts had become engrafted on the constitution; and if they excited fear or jealousy, there was no one who dared to complain. Yet additional parliamentary sanction was not considered as unnecessary by Henry VII., and in the third year of his reign an act was passed for giving the Court of Star Chamber, which had now acquired its determinate name, further authority to punish divers misdemeanours." (Palgrave, p. 97.)

It is really more than we can grant that the jurisdiction of the _consilium ordinarium_ had been engrafted on the constitution, when the statute-book was full of laws to restrain, if not to abrogate it. The acts already mentioned, in the reign of Henry VI., by granting a temporary and limited jurisdiction to the council, demonstrate that its general exercise was not acknowledged by parliament. We can only say that it may have continued without remonstrance in the reign of Edward IV. I have observed in the text that the Rolls of Parliament under Edward IV. contain no complaints of grievances. But it is not quite manifest that the council did exercise in that reign as much jurisdiction as it had once done. Lord Hale tells us that "this jurisdiction was gradually brought into great disuse, though there remain some straggling footsteps of their proceedings till near 3 Hen. VII." (Hist. of Lords' Jurisdiction, p. 38.) And the famous statute in that year, which erected a new court, sometimes improperly called the Court of Star Chamber, seems to have been prompted by a desire to restore, in a new and more legal form, a jurisdiction which was become almost obsolete, and, being in contradiction to acts of parliament, could not well be rendered effective without one.[474]

We cannot but discover, throughout the learned and luminous Essay on the Authority of the King's Council, a strong tendency to represent its exercise as both constitutional and salutary. The former epithet cannot, I think, be possibly applicable in the face of statute law; for what else determines our constitution? But it is a problem with some, whether the powers actually exerted by this anomalous court, admitting them to have been, at least latterly, in contravention of many statutes, may not have been rendered necessary by the disorderly condition of society and the comparative impotence of the common law. This cannot easily be solved with the defective knowledge that we possess. Sometimes, no doubt, the "might on one side, and unmight on the other," as the answer to a petition forcibly expresses it, afforded a justification which, practically at least, the commons themselves were content to allow. But were these exceptional instances so frequent as not to leave a much greater number wherein the legal remedy by suit before the king's justices of assise might have been perfectly effectual? For we are not concerned with the old county-courts, which were perhaps tumultuary and partial enough, but with the regular administration, civil and criminal, before the king's justices of oyer and terminer and of gaol delivery. Had not they, generally speaking, in the reign of Edward III. and his successors, such means of enforcing the execution of law as left no sufficient pretext for recurring to an arbitrary tribunal? Liberty, we should remember, may require the sacrifice of some degree of security against private wrong, which a despotic government, with an unlimited power of restraint, can alone supply. If no one were permitted to travel on the high road without a licence, or, as now so usual, without a passport, if no one could keep arms without a registry, if every one might be indefinitely detained on suspicion, the evil doers of society would be materially impeded, but at the expense, to a certain degree, of every man's freedom and enjoyment. Freedom being but a means to the greatest good, times might arise when it must yield to the security of still higher blessings; but the immediate question is, whether such were the state of society in the fourteenth and fifteenth centuries. Now, that it was lawless and insecure, comparatively with our own times or the times of our fathers, is hardly to be disputed. But if it required that arbitrary government which the king's council were anxious to maintain, the representatives of the commons in parliament, knights and burgesses, not above the law, and much interested in the conservation of property, must have complained very unreasonably for more than a hundred years. They were apparently as well able to judge as our writers can be; and if they reckoned a trial by jury at _nisi prius_ more likely, on the whole, to insure a just adjudication of a civil suit, than one before the great officers of state and other constituent members of the ordinary council, it does not seem clear to me that we have a right to assert the contrary. This mode of trial by jury, as has been seen in another place, had acquired, by the beginning of the fifteenth century, its present form; and considering the great authority of the judges of assise, it may not, probably, have given very frequent occasion for complaint of partiality or corrupt influence.

NOTE XII. Page 156.

The learned author of the Inquiry into the Rise and Growth of the Royal Prerogative in England has founded his historical theory on the confusion which he supposes to have grown up between the ideal king of the constitution and the personal king on the throne. By the former he means the personification of abstract principles, sovereign power, and absolute justice, which the law attributes to the _genus_ king, but which flattery or other motives have transferred to the possessor of the crown for the time being, and have thus changed the Teutonic _cyning_, the first man of the commonwealth, the man of the highest weregild, the man who was so much responsible that he might be sued for damages in his own courts or deposed for misgovernment, into the sole irresponsible person of indefeasible prerogatives, of attributes almost divine, whom Bracton and a long series of subsequent lawyers raised up to a height far beyond the theory of our early constitution.

This is supported with great acuteness and learning; nor is it possible to deny that the king of England, as the law-books represent him, is considerably different from what we generally conceive an ancient German chieftain to have been. Yet I doubt whether Mr. Allen has not laid too much stress on this, and given to the fictions of law a greater influence than they possessed in those times to which his inquiry relates; and whether, also, what he calls the monarchical theory was so much derived from foreign sources as he apprehends. We have no occasion to seek, in the systems of civilians or the dogmas of churchmen, what arose from a deep-seated principle of human nature. A king is a person; to persons alone we attach the attributes of power and wisdom; on persons we bestow our affection or our ill-will. An abstraction, a politic idea of royalty, is convenient for lawyers; it suits the speculative reasoner, but it never can become so familiar to a people, especially one too rude to have listened to such reasoners, as the simple image of the king, the one man whom we are to love and to fear. The other idea is a sort of monarchical pantheism, of which the vanishing point is a republic. And to this the prevalent theory, that kings are to reign but not to govern, cannot but lead. It is a plausible, and in the main, perhaps, for the times we have reached, a necessary theory; but it renders monarchy ultimately scarcely possible. And it was neither the sentiment of the Anglo-Saxons, nor of the Norman baronage; the feudal relation was essentially and exclusively personal; and if we had not enough, in a more universal feeling of human nature, to account for loyalty, we could not mistake its inevitable connexion with the fealty and homage of the vassal. The influence of Roman notions was not inconsiderable upon the continent; but they never prevailed very much here; and though, after the close alliance between the church and state established by the Reformation, the whole weight of the former was thrown into the scale of the crown, the mediaeval clergy, as I have observed in the text, were anything rather than upholders of despotic power.

It may be very true that, by considering the monarchy as a merely political institution, the scheme of prudent men to avoid confusion, and confer the _minimum_ of personal authority on the reigning prince, the principle of his irresponsibility seems to be better maintained. But the question to which we are turning our eyes is not a political one; it relates to the positive law and positive sentiments of the English nation in the mediaeval period. And here I cannot put a few necessary fictions grown up in the courts, such as, the king never dies, the king can do no wrong, the king is everywhere, against the tenor of our constitutional language, which implies an actual and active personality. Mr. Allen acknowledges that the act against the Despensers under Edward II., and re-confirmed after its repeal, for promulgating the doctrine that allegiance had more regard to the crown than to the person of the king, "seems to establish, as the deliberate opinion of the legislature, that allegiance is due to the person of the king generally, and not merely to his crown or politic capacity, so as to be released and destroyed by his misgovernment of the kingdom" (p. 14); which, he adds, is not easily reconcilable with the deposition of Richard II. But that was accomplished by force, with whatever formalities it may have been thought expedient to surround it.

We cannot, however, infer from the declaration of the legislature, that allegiance is due to the king's person and not to his politic capacity, any such consequence as that it is not, in any possible case, to be released by his misgovernment. This was surely not in the spirit of any parliament under Edward II. or Edward III.; and it is precisely because allegiance is due to the person, that, upon either feudal or natural principles, it might be cancelled by personal misconduct. A contrary language was undoubtedly held under the Stuarts; but it was not that of the mediaeval period.

The tenet of our law, that all the soil belongs theoretically to the king, is undoubtedly an enormous fiction, and very repugnant to the barbaric theory preserved by the Saxons, that all unappropriated land belonged to the folk, and was unalienable without its consent.[475] It was, however, but an extension of the feudal tenure to the whole kingdom, and rested on the personality of feudal homage. William established it more by his power than by any theory of lawyers; though doubtless his successors often found lawyers as ready to shape the acts of power into a theory as if they had originally projected them. And thus grew up the high schemes of prerogative, which, for many centuries, were in conflict with those of liberty. We are not able, nevertheless, to define the constitutional authority of the Saxon kings; it was not legislative, nor was that of William and his successors ever such; it was not exclusive of redress for private wrong, nor was this ever the theory of English law, though the method of remedy might not be sufficiently effective; yet it had certainly grown before the Conquest, with no help from Roman notions, to something very unlike that of the German kings in Tacitus.

NOTE XIII. Page 172.

The reduction of the free ceorls into villenage, especially if as general as is usually assumed, is one of the most remarkable innovations during the Anglo-Norman period; and one which, as far as our published records extend, we cannot wholly explain. Observations have been made on it by Mr. Wright, in the Archaeologia (vol. xxx. p. 225). After adverting to the oppression of the peasants in Normandy, which produced several rebellions, he proceeds thus:--"These feelings of hatred and contempt for the peasantry were brought into our island by the Norman barons in the latter half of the eleventh century. The Saxon laws and customs continued; but the Normans acted as the Franks had done towards the Roman coloni; they enforced with harshness the laws which were in their own favour, and gradually threw aside, or broke through, those which were in favour of the miserable serf."

In the Laws of Henry I. we find the weregild of the twyhinder, or villein, set at 200 shillings in Wessex, "quae caput regni est et legum" (c. 70). But this expression argues an Anglo-Saxon source; and, in fact, so much in that treatise seems to be copied, without regard to the change of times, from old authorities, mixed up with provisions of a feudal or Norman character, that we hardly know how to distinguish what belongs to each period. It is far from improbable that villenage, in the sense the word afterwards bore, that is, an absolutely servile tenure of lands, not only without legal rights over them, but with an incapacity of acquiring either immovable or movable property against the lord, may have made considerable strides before the reign of Henry II.[476] But unless light should be thrown on its history by the publication of more records, it seems almost impossible to determine the introduction of predial villenage more precisely than to say it does not appear in the laws of England at the Conquest, and it does so in the time of Glanvil. Mr. Wright's Memoir in the Archaeologia, above quoted, contains some interesting matter; but he has too much confounded the _theow_, or Anglo-Saxon slave, with the _ceorl_; not even mentioning the latter, though it is indisputable that _villanus_ is the equivalent of _ceorl_, and _servus_ of _theow_.

But I suspect that we go a great deal too far in setting down the descendants of these ceorls, that is, the whole Anglo-Saxon population except thanes and burgesses, as almost universally to be counted such villeins as we read of in our law-books, or in concluding that the cultivators of the land, even in the thirteenth century, were wholly, or at least generally, servile. It is not only evident that small freeholders were always numerous, but we are, perhaps, greatly deceived in fancying that the occupiers of villein tenements were usually villeins. _Terre-tenants en villenage_ and tenants _par copie_, who were undoubtedly free, appear in the early Year-books, and we know not why they may not always have existed.[477] This, however, is a subject which I am not sufficiently conversant with records to explore; it deserves the attention of those well-informed and diligent antiquaries whom we possess. Meantime it is to be observed that the lands occupied by _villani_ or _bordarii_, according to the Domesday survey, were much more extensive than the copyholds of the present day; and making every allowance for enfranchisements, we can hardly believe that all these lands, being, in fact, by far the greater part of the soil, were the _villenagia_ of Glanvil's and Bracton's age. It would be interesting to ascertain at what time the latter were distinguished from _libera tenementa_; at what time, that is, the distinction of territorial servitude, independent as it was of the personal state of the occupant, was established in England.

NOTE XIV. Page 173.

This identity of condition between the villein regardant and in gross appears to have been, even lately, called in question, and some adhere to the theory which supposes an inferiority in the latter. The following considerations will prove that I have not been mistaken in rejecting it:--

I. It will not be contended that the words "regardant" and "in gross" indicate of themselves any specific difference between the two, or can mean anything but the title by which the villein was held; prescriptive and territorial in one case, absolute in the other. For the proof, therefore, of any such difference we require some ancient authority, which has not been given. II. The villein regardant might be severed from the manor, with or without land, and would then become a villein in gross. If he was sold as a domestic serf, he might, perhaps, be practically in a lower condition than before, but his legal state was the same. If he was aliened with lands, parcel of the manor, as in the case of its descent to coparceners who made partition, he would no longer be regardant, because that implied a prescriptive dependence on the lord, but would occupy the same tenements and be in exactly the same position as before. "Villein in gross," says Littleton, "is where a man is seised of a manor whereunto a villein is regardant, and granteth the same villein by deed to another; then he is a villein in gross, and not regardant." (Sect. 181.) III. The servitude of all villeins was so complete that we cannot conceive degrees in it. No one could purchase lands or possess goods of his own; we do not find that any one, being strictly a villein, held by certain services; "he must have regard," says Coke, "to that which is commanded unto him; or, in the words of Bracton, 'a quo praestandum servitium incertum et indeterminatum, ubi scire non poterit vespere quod servitium fieri debet mane.'" (Co. Lit. 120, b.) How could a villein in gross be lower than this? It is true that the villein had one inestimable advantage over the American negro, that he was a freeman, except relatively to his lord; possibly he might be better protected against personal injury; but in his incapacity of acquiring secure property, or of refusing labour, he was just on the same footing. It may be conjectured that some villeins in gross were descended from the _servi_, of whom we find 25,000 enumerated in Domesday. Littleton says, "If a man and his ancestors, whose heir he is, have been seised of a villein and of his ancestors, as of villeins in gross, time out of memory of man, these are villeins in gross." (Sect. 182.)

It has been often asserted that villeins in gross seem not to have been a numerous class, and it might not be easy to adduce distinct instances of them in the fourteenth and fifteenth centuries, though we should scarcely infer, from the pains Littleton takes to describe them, that none were left in his time. But some may be found in an earlier age. In the ninth of John, William sued Ralph the priest for granting away lands which he held to Canford priory. Ralph pleaded that they were his freehold. William replied that he held them in villenage, and that he (the plaintiff) had sold one of Ralph's sisters for four shillings. (Blomefield's Norfolk, vol. iii. p. 860, 4to. edition.) And Mr. Wright has found in Madox's Formulare Anglicanum not less than five instances of villeins sold with their family and chattels, but without land. (Archaeologia, xxx. 228.) Even where they were sold along with land, unless it were a manor, they would, as has been observed before, have been villeins in gross. I have, however, been informed that in valuations under escheats in the old records a separate value is never put upon villeins; their alienation without the land was apparently not contemplated. Few cases concerning villeins in gross, it has been said, occur in the Year-books; but villenage of any kind does not furnish a great many; and in several I do not perceive, in consulting the report, that the party can be shown to have been regardant. One reason why villeins in gross should have become less and less numerous was that they could, for the most part, only be claimed by showing a written grant, or by prescription through descent; so that, if the title-deed were lost, or the descent unproved, the villein became free.

Manumissions were often, no doubt, gratuitous; in some cases the villein seems to have purchased his freedom. For though in strictness, as Glanvil tells us, he could not "libertatem suam suis denariis quaerere," inasmuch as all he possessed already belonged to the lord, it would have been thought a meanness to insist on so extreme a right. In order, however, to make the deed more secure, it was usual to insert the name of a third person as paying the consideration-money for the enfranchisement. (Archaeologia, xxx. 228.)

It appears not by any means improbable that regular money payments, or other fixed liabilities, were often substituted instead of uncertain services for the benefit of the lord as well as the tenant. And when these had lasted a considerable time in any manor, the villenage of the latter, without any manumission, would have expired by desuetude. But, perhaps, an entry of his tenure on the court-roll, with a copy given to himself, would operate of itself, in construction of law, as a manumission. This I do not pretend to determine.

NOTE XV. Page 179.

The public history of Europe in the middle ages inadequately represents the popular sentiment, or only when it is expressed too loudly to escape the regard of writers intent sometimes on less important subjects. But when we descend below the surface, a sullen murmur of discontent meets the ear, and we perceive that mankind was not more insensible to wrongs and sufferings than at present. Besides the various outbreakings of the people in several counties, and their complaints in parliament, after the commons obtained a representation, we gain a conclusive insight into the spirit of the times by their popular poetry. Two very interesting collections of this kind have been lately published by the Camden Society, through the diligence of Mr. Thomas Wright; one, the Poems attributed to Walter Mapes; the other, the Political Songs of England, from John to Edward II.

Mapes lived under Henry II., and has long been known as the reputed author of humorous Latin verses; but it seems much more probable, that the far greater part of the collection lately printed is not from his hand. They may pass, not for the production of a single person, but rather of a class, during many years, or, in general words, a century, ending with the death of Henry III. in 1272. Many of them are professedly written by an imaginary Golias.

"They are not the expressions of hostility of one man against an order of monks, but of the indignant patriotism of a considerable portion of the English nation against the encroachments of civil and ecclesiastical tyranny." (Introduction to Poems ascribed to Walter Mapes, p. 21.) The poems in this collection reflect almost entirely on the pope and the higher clergy. They are all in rhyming Latin, and chiefly, though with exceptions, in the loose trochaic metre called Leonine. The authors, therefore, must have been clerks, actuated by the spirit which, in a church of great inequality in its endowments, and with a very numerous body of poor clergy, is apt to gain strength, but certainly, as ecclesiastical history bears witness, not one of mere envious malignity towards the prelates and the court of Rome. These deserved nothing better, in the thirteenth century, than biting satire and indignant reproof, and the poets were willing enough to bestow both.

But this popular poetry of the middle ages did not confine itself to the church. In the collection entitled 'Political Songs' we have some reflecting on Henry III., some on the general administration. The famous song on the battle of Lewes in 1264 is the earliest in English; but in the reign of Edward I. several occur in that language. Others are in French or in Latin; one complaining of the taxes is in an odd mixture of these two languages; which, indeed, is not without other examples in mediaeval poetry. These Latin songs could not, of course, have been generally understood. But what the priests sung in Latin, they said in English; the lower clergy fanned the flame, and gave utterance to what others felt. It may, perhaps, be remarked, as a proof of general sympathy with the democratic spirit which was then fermenting, that we have a song of exultation on the great defeat which Philip IV. had just sustained at Courtrai, in 1302, by the burgesses of the Flemish cities, on whose liberties he had attempted to trample (p. 187). It is true that Edward I. was on ill terms with France, but the political interests of the king would not, perhaps, have dictated the popular ballad.

It was an idle exaggeration in him who said that, if he could make the ballads of a people, any one might make their laws. Ballads, like the press, and especially that portion of the press which bears most analogy to them, generally speaking, give vent to a spirit which has been at work before. But they had, no doubt, an influence in rendering more determinate, as well as more active, that resentment of wrong, that indignation at triumphant oppression, that belief in the vices of the great, which, too often for social peace and their own happiness, are cherished by the poor. In comparison, indeed, with the efficacy of the modern press, the power, of ballads is trifling. Their lively sprightliness, the humorous tone of their satire, even their metrical form, sheathe the sting; and it is only in times when political bitterness is at its height that any considerable influence can be attached to them, and then it becomes undistinguishable from more energetic motives. Those which we read in the collection above mentioned appear to me rather the signs of popular discontent than greatly calculated to enhance it. In that sense they are very interesting, and we cannot but desire to see the promised continuation to the end of Richard II.'s reign.[478] They are said to have become afterwards less frequent, though the wars of the Roses were likely to bring them, forward.

Some of the political songs are written in France, though relating to our kings John and Henry III. Deducting these, we have two in Latin for the former reign; seven in Latin, three in French (or what the editor calls Anglo-Norman, which is really the same thing), one in a mixture of the two, and one in English, for the reign of Henry III. In the reigns of Edward I. and Edward II. we have eight in Latin, three in French, nine in English, and four in mixed languages; a style employed probably for amusement. It must be observed that a large proportion of these songs contain panegyric and exultation on victory rather than satire; and that of the satire much is general, and much falls on the church; so that the animadversions on the king and the nobility are not very frequent, though with considerable boldness; but this is more shown in the Latin than the English poems.

FOOTNOTES:

[460] This hypothetical clause is somewhat remarkable. Grand serjeanty is of course included by parity under military service. But did any hold of the king in socage, except on his demesne lands? There might be some by petty serjeanty. Yet the committee, as we have just seen, absolutely exclude these from any share in the great councils of the Conqueror and his immediate descendants.

[461] Mr. Spence has ingeniously conjectured, observing that in some passages of Domesday (he quotes two, but I only find one) the barons who held more than six manors paid their relief directly to the king, while those who had six or less paid theirs to the sheriff (Yorkshire, 298, b), that "this may tend to solve the disputed question as to what constituted one of the greater barons mentioned in the Magna Charta of John and other early Norman documents; for, by analogy to the mode in which the relief was paid, the greater barons were summoned by particular writs, the rest by one general summons through the sheriff." History of Equitable Jurisdiction, p. 40.

[462] See quotation from Spence's Equitable Jurisdiction, a little above. The barony of Berkeley was granted in 1 Ric. I., to be holden by the service of five knights, which was afterwards reduced to three. Nicolas's Report of Claim to Barony of L'Isle, Appendix, p. 318.

[463] A charter of Henry I., published in the new edition of Rymer (i. p. 12), fully confirms what is here said. Sciatis quod concedo et praecipio, ut a modo comitatus mei et hundreda in illis locis et iisdem terminis sedeant, sicut sederunt in tempore regis Edwardi, et non aliter. Ego enim, quando voluero, faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam. Et si modo exurgat placitum de divisione terrarum, si est inter barones meos dominicos, tractetur placitum in curea mea. Et si est inter vavassores duorum dominorum, tractetur in comitatu. Et hoc duello fiat, nisi in eis remanserit. Et volo et praecipio, ut omnes de comitatu eant ad comitatus et hundreda, sicut fecerunt in tempore regis Edwardi. But it is also easily proved from the Leges Henrici Primi.

[464] See the ensuing part of this note.

[465] This pedigree is elaborately, and with pious care, traced by Mr. Stapleton, in his excellent introduction to the old chronicle of London, already quoted. The name Alwyn appears rather Saxon than Norman, so that we may presume the first mayor to have been of English descent; but whether he were a merchant, or a landholder living in the city, must be undecided.

[466] Hist. de Paris, vol. iii. p. 231.

[467] John of Troyes says, in 1467, that from sixty to eighty thousand men appeared in arms. Dulaure (Hist. de Paris, vol. iii. p. 505) says this gives 120,000 for the whole population; but it gives double, which is incredible. In the thirteenth and fourteenth centuries the houses were still cottages: only four streets were paved; they were very narrow and dirty, and often inundated by the Seine. Ib. p. 198.

[468] This doubt was soon afterwards changed into a proposition, strenuously maintained by the supposed compiler of these Reports, lord Redesdale, on the claim to the barony of L'Isle in 1829. The ancestor had been called by writ to several parliaments of Edw. III.; and having only a daughter, the negative argument from the omission of his posterity is of little value; for though the husbands of heiresses were frequently summoned, this does not seem to have been an universal practice. It was held by lord Redesdale, that, at least until the statute of 5 Richard II. c. 4, no hereditary or even personal right to the peerage was created by the writ of summons. The house of lords rejected the claim, though the language of their resolution is not conclusive as to the principle. The opinion of lord R. has been ably impugned by Sir Harris Nicolas, in his Report of the L'Isle Peerage, 1829.

[469] The Lords' committee (Second Report, p. 436) endeavour to elude the force of this authority; but it manifestly appears that the Nevilles were preferred to the Fanes for the particular barony in question; though some satisfaction was made to the claimant of the latter family by calling her to a different peerage.

[470] The continuance of barony by tenure has been controverted by Sir Harris Nicolas, in some remarks on such a claim preferred by the present earl Fitzharding while yet a commoner, in virtue of the possession of Berkeley castle, published as an Appendix to his Report of the L'Isle Peerage. In the particular case there seem to have been several difficulties, independently of the great one, that, in the reign of Charles II., barony by tenure had been finally condemned. But there is surely a great general difficulty on the opposite side, in the hypothesis that, while it is acknowledged that there were, in the reigns of Edward I. and Edward II., certain known persons holding by barony and called peers of the realm, it could have been agreeable to the feudal or to the English constitution that the king, by refusing to the posterity of such barons a writ of summons to parliament, might deprive them of their nobility, and reduce them for ever to the rank of commoners.

[471] It has been doubted, notwithstanding the authority of Spelman, and some earlier but rather precarious testimony, whether the chancellor before the Conquest was any more than a scribe or secretary. Palgrave, in the Quarterly Review, xxxiv. 291. The Anglo-Saxon charters, as far as I have observed, never mention him as a witness; which seems a very strong circumstance. Ingulfus, indeed, has given a pompous account of chancellor Turketul; and, if the history ascribed to Ingulfus be genuine, the office must have been of high dignity. Lord Campbell assumes this in his Lives of the Chancellors.

[472] The words of the petition and answer are the following:--

"Item, que nul franc homme ne soit mys a respondre de son franc tenement, ne de riens qui touche vie et membre, fyns ou redemptions, par apposailles devant le conseil notre seigneur le roi, ne devant ses ministres queconques, sinoun par proces de ley de ces en arere use."

"Il plest a notre seigneur le roi que les leies de son roialme soient tenuz et gardez en lour force, et que nul homme soit tenu a respondre de son fraunk tenement, sinoun par processe de ley: mes de chose que touche vie ou membre, contemptz ou excesse, soit fait come ad este use ces en arere." Rot. Par. ii. 228.

It is not easy to perceive what was reserved by the words "chose que touche vie ou membre;" for the council never determined these. Possibly it regarded accusations of treason or felony, which they might entertain as an inquest, though they would ultimately be tried by a jury. Contempts are easily understood; and by excesses were meant riots and seditions. These political offences, which could not be always safely tried in a lower court, it was the constant intention of the government to reserve for the council.

[473] See Note in p. 145, for the statute 31 H. VI. c. 2.

[474] See Constitutional History of England, vol. i. p. 49. (1842.)

[475] It has been mentioned in a former note, on Mr. Allen's authority, that the folcland had acquired the appellation _terra regis_ before the Conquest.

[476] A presumptive proof of this may be drawn from a chapter in the Laws of Henry I. c. 81, where the penalty payable by a villein for certain petty offences is set at thirty pence; that of a _cotset_ at fifteen; and of a theow at six. The passage is extremely obscure; and this proportion of the three classes of men is almost the only part that appears evident. The cotset, who is often mentioned in Domesday, may thus have been an inferior villein, nearly similar to what Glanvil and later law-books call such.

[477] The following passage in the Chronicle of Brakelond does not mention any manumission of the ceorl on whom abbot Samson conferred a manor:--Unum solum manerium carta sua confirmavit cuidam Anglico natione, _glebae adscripto_, de cujus fidelitate plenius confidebat quia bonus agricola erat, et quia nesciebat loqui Gallice. p. 24.

[478] Mr. Wright has given a few specimens in Essays on the Literature and Popular Superstitions of England in the Middle Ages, vol. i. p. 257. In fact we may reckon Piers Plowman an instance of popular satire, though far superior to the rest.