Chapter X: Front Matter (10)

The word _baron_ of itself originally, did not, more than peer, signify an immediate vassal of the king; for earls palatine had their barons, that is, their immediate tenants; and, in old records, the citizens of London are stiled barons, and so are the representatives of the cinque ports called to this day. Baron, therefore, at first signified only the immediate tenant of that superior whose baron he is said to be, but by length of time it became restrained to those who, properly and exactly speaking, were _barones regis & regni_, and even not to all of these, but to such only as had manors and courts therein. For though, by the principles of the feudal constitutions, every immediate military tenant of the crown, however small his holding, was obliged to assist the king with his advice, and entitled likewise to give or refuse his assent to any new law or subsidy, that is, to attend in parliament. This attendance was too heavy and burthensome upon such as had only one or two knights fees, and could not be complied with without their ruin. Hence arose the omission of issuing writs to such, and which, being for their ease, they acquiesced in, attendance in parliament being considered at that time as a burthen. Thus they lost that right they were entitled to by the nature of their tenure, until the method was found out of admitting them by representation. Hence arose the distinction between _tenants by barony_, and _tenants by knight service in capite_ of the king. The former were such military tenants of the king, as had estates so considerable as qualified them, without inconvenience, to attend in parliament, and who were therefore entitled to be summoned. The _quantum_ of this estate was regularly thirteen knights fees and one third, as that of a count or earl was twenty; that is, as a knight’s fee was then reckoned at twenty pounds _per annum_, the baron’s revenue was four hundred marks, or two hundred sixty-six pounds thirteen shilling and four-pence, and the earl’s four hundred pounds, answering in value of money at present to about two thousand six hundred, and four thousand pounds yearly[251].

Such was the nature of all the baronies of England for about two hundred years after the conquest; and they are called _baronies by tenure_, because the dignity and privileges were annexed to the lands they held; and if these were alienated with the consent of the king (for without that they could not) the barony went over to the alienée. The manner of creating these barons was by investiture, that is, by arraying them with a robe of state, and a cap of honour, and girding on a sword, as the symbols of their dignity. Of these Matthew Paris tells us there were two hundred and fifty in the time of Henry the Third, and while they stood purely on this footing, it was not in the king’s power to encrease the number of the baronies, though of barons perhaps he might. For as William the Conqueror was obliged to gratify several of his great officers according to the number of men they brought, with two or more baronies, whenever these fell into the hands of the crown by escheat, either for want of heirs, or by forfeiture, it was in the king’s power, and was his interest, to divide them into separate hands. The same thing likewise happened, when, by an intermarriage with an heiress, more baronies than one came into the hands of a nobleman, and escheated to the crown[252].

But the number of these feudal baronies could not, strictly or properly speaking, be encreased by the king; for they could be created only out of lands, and there were no lands vacant to create new ones out of, for the king’s demesnes were, in those days, unalienable. However, we find, at the end of Henry the Third’s reign, and even in John’s, that the number of baronies were actually encreased, and a distinction made between the _barones majores_, and _minores_. The _majores_ were those who stood upon the old footing of William, and had lands sufficient in law, namely, the number of knights fees requisite. The _minores_ were such as held by part of a barony; as when an old barony descended to, and was divided among sisters; in which case, when the husband of the sister whom the king pleased to name, was the baron of parliament; or else were newly carved out of the old baronies that had fallen in by escheat; as supposing the king had granted six knights fees of an old barony to one, to hold with all the burthens, and to do the service of an entire barony, and the remaining seven and one third to another, on the same terms. But the attendance of these minor barons also, at length became too burthensom for their circumstances, and many of them were glad to be excused. The kings took then the power of passing by such as they thought unable, by not sending them writs of summons, and John extended his prerogative even to omit summoning such of the _majores_ as he imagined were inclined to oppose him. This however at length he was obliged to give up: For in his Magna Charta it is said, _Ad habendum commune consilium regni faciemus summoneri archiepiscopos, episcopos, abbates, commites, & majores barones regni sigillatim, per literas nostras_[253].

The _barones majores_ were then fully and plainly distinguished from the _minores_, and I think it will not be doubted they were such as had the full complement of knights fees that made up an antient barony; and, accordingly, we find in 1255, when Henry the Third had neglected summoning some of these, the others refused to enter on any business, _Quia omnes, tunc temporis, non fuerunt, juxta tenorem Magnæ Chartæ suæ, vocati, et ideo, sine paribus suis, tunc absentibus, nullum voluerunt tunc responsum dare, vel auxilium concedere vel prestare_. No king since, ever omitted to summon all the greater nobility, until Charles the First was prevailed upon to forbid the sending a writ to the Earl of Bristol by Buckingham, who was afraid of being accused by that nobleman; but on the application of the house of lords, and their adjourning themselves from day to day, and doing no business, the writ at last was issued.

In the reign of Henry the Third also, the king’s prerogative of summoning or omitting the lesser barons was likewise ascertained by an act of parliament since lost, as we find by these words from history: _Ille enim rex (scilicet Henricus Tertius) post magnas perturbationes, & enormes vexationes inter ipsum regem, Simonem de Morteforti, & alios barones, motas & sopitas, statuit & ordinavit, quod omnes illi commites & barones regni Angliæ, quibus ipse rex dignatus est brevia summonitionis dirigere, venirent ad parlamentum suum; & non alii nisi, forte, dominus rex alia illa brevia illis dirigere voluisset_[254]. And from henceforth no nobleman could sit in parliament without a writ. But there was this difference between the greater and the lesser barons, that the former had a right to their writ _ex debito justitiæ_, to the latter it was a matter of favour; but when summoned, they, being really barons, had the same rights with the rest, though sitting, not by any inherent title, but by virtue of the writ. The other lesser barons, who were generally omitted to be summoned, by degrees mixed with the other kings tenants in capite, and were thenceforth represented by the knights of the shires[255].

But these baronies by tenure being long since worn out among the laity, it is proper to proceed to the two ways now in being of creating peers, by _writ_, and by _letters patent_. It is the lord Coke’s opinion, and in this he has been followed ever since, that a writ to any man, baron, or no baron, to sit in parliament, if once he hath taken his seat in pursuance thereof, gains a barony to him and the heirs of his body. And though the law, principally on the authority of that great lawyer, is now so settled, certainly it is comparatively but a novel opinion, and very ill to be supported by reason. The words of the writ are, _Rex tali salutem, quia de advisamento & assensu concilii nostri, pro quibusdam arduis & urgentibus negotiis statum & defensionem regni nostri Angliæ contingentibus, quoddam parlamentum nostrum apud Westmonast. tali die, talis mensis, proximo futuro teneri ordinavimus, & ibidem vobiscum, ac cum prelatis magnatibus & proceribus dicti regni nostri, colloquium habere & tractatum; vobis in fide & ligeantia quibus nobis tenemini, firmiter injungendo mandamus, quod consideratis dictorum negotiorum auctoritate & periculis imminentibus, cessante excusatione quacunque, dictis die & loco personaliter intersitis nobiscum, ac cum prelatis magnatibus & proceribus super dictis negotiis tractaturi, vestrumque consilium impensuri, & hoc sicut nos, & honorem nostrum, ac expeditionem negotiorum prædictorum diligitis, nullatenus omittatis_[256].

That this writ must be obeyed, there is no doubt, for every subject is, by his allegiance, obliged to assist the king with faithful counsel: But what right the party summoned acquired thereby is the question. The words are not only personal to him, but restricted likewise to a particular place and time; and accordingly, in antient times, we find many persons summoned to one parliament, omitted in the next, and summoned perhaps to the third. There is not a word therein that hints at giving the least right to an heir; and what reason can be assigned why a man, by this writ, should gain an estate of inheritance in a peerage, when, in letters patents, it is admitted that he gains only an estate for life, without the word _heirs_. That antiently there was no such notion appears from the summons to parliament, where frequently we find the grandfather summoned, the father passed by, and the grandson afterwards summoned: Nay, in the rolls there are instances of ninety-eight persons being summoned a single time only, and neither themselves, nor any of their posterity, ever taken notice of afterwards. Or, if we were to allow that this writ created an inheritance, what reason can be given why it should be an estate tail only, and be confined to the heirs of the body, and not, as all other new inheritances, created generally, go to the collateral heirs?

But, in order to discover plainly what privileges persons so called by writ, had, or could obtain in those times, it will be proper to distinguish them into three kinds of persons. First, then, they were either some of the _minores barones by tenure_; and these, when called, had certainly all the privileges of the greater; or else they were not barons at all, but plain knights or gentlemen; and, with respect to these, it is plain they had a right to deliberate, debate, and advise. But the better opinion is, they had no right to vote, but were assistants and advisers only, as the judges are at present; for it is absurd to suppose that, in those times, when the commons were low, and inconsiderable, and the barons were more powerful than the crown, these latter should suffer their resolutions to be over-ruled at the pleasure of the king, by his calling in such numbers as we find he often did, which must have been the case, if all he summoned had votes. But these two kinds of persons gained by their writ, or sitting in consequence of it, originally, no farther right than to be present at that time. However, by many of these persons and their heirs having been constantly summoned, especially since Henry the Seventh’s reign, and the ancient practice of omitting any who had been very frequently so, going into disuse, the distinction between the greater and the lesser barons was forgot, and that opinion prevailed which my lord Coke had adopted, and which is now the law, that a man, having once sat in parliament in pursuance of the king’s writ, acquires thereby an estate tail to him and the heirs of his body[257].

There were yet another kind of persons, not peers, that might be summoned by writ. These were the eldest sons of peers, to whom the father’s barony must descend; and in such case, if the heir was called by the name of a barony that was in his father, he was a baron to all intents and purposes. But it seems very plain, that this was not a new creation of a barony; for in that case the son so called should have been the lowest peer, whereas the practice is the contrary. The eldest son of the duke of Norfolk, called by the title of lord Mowbray, sat first baron, because that barony of his father’s is the antientest in England. It seems, therefore, that this was considered as a transfer of the antient barony by the joint consent of the father and king, and the father still continues to sit by the remaining peerage in him. Accordingly we find no instance of a baron’s son sitting on such a summons, unless the father had another barony by which he might sit. If the father indeed had a higher title, that has been reckoned sufficient to support his seat, though his only barony was transferred to the son. This then being no new creation, but a temporary transfer only of an old peerage, it should seem, that this title, when once merged in the greater by the father’s death, should go according to the old limitation; but of late we find them considered as new creations. On the death of the late earl of Derby, Sir Edward Stanley, his sixth cousin, succeeded, and sits in parliament as baron Strange, by Henry the Seventh’s creation; but an elder son of a former earl of Derby, having been called by writ while his father was living, the Duke of Athol, as his heir by the female line, sits by the same title of baron Strange of king Charles the First’s creation.

The descent of these two kinds of baronies are directed by the rules of the descent of other inheritances at common law, and consequently females are capable of succession, but with two exceptions; first, that half blood is no impediment, and consequently the half brother excludes the sister; secondly, that the honour is not divisible, and therefore, if there be two or more sisters, heiresses, the title is _in abeyance_, that is, is suspended, until the king makes choice of one of them and her heirs; though by constant usage the law seems to be verging fast to a constant descent to the eldest[258].

The third method of creating peers is by _letters patent_, which is the most usual, and esteemed the most advantageous way; because a peerage is thereby created, though the new nobleman hath never taken his seat, which is not the case of a barony by writ. As to the manner of these creations, there has a notable difference intervened since the accession of Henry the Seventh from what was the practice before Richard the Second. In his eleventh year began this method of creating by patent, in favour of John de Beauchamp, who, though summoned, never sat there, but was attainted by the next parliament, and afterwards executed. But, the attainder out of the case, his patent in law could never have been deemed valid, because Michael de la Pole was the lord chancellor who affixed the seal to it, which had been before taken from him by act of parliament, and he declared incapable of ever having it again. This, then, was a single and ineffectual attempt of that weak prince to create a new peer without the assent of parliament, which was the usual way, above thirty having been made so in that very reign. His successors were too wise to follow this example; for every barony newly created, till the union of the roses, which were about fourteen, were, every one of them, as appears on the face of the patents, by authority of parliament, if we except two or three; and even these, on a close examination, will appear not to be new baronies, but _regrants_ of old feudal baronies by tenure, which, undoubtedly, were all in the sole disposition of the king[259].

But Henry the Seventh, having trodden down all opposition, was fortunate enough to carry the point Richard had vainly attempted, and acquired for his successors that prerogative which they have since enjoyed, of creating peers at pleasure. The descent of these titles, created by patent, is directed by the words of the creation. If heirs are not mentioned, it is only an estate for life; if to a man and heirs of his body, females are not excluded, but the general way is, to the heirs male of the body of the grantée, perhaps, with remainders over, and they descend as other estates entailed. The case of the dutchy of Somerset was singular. Edward Seymour having sons by two venters, was created duke of Somerset, and his heirs male of his second marriage, remainder to his heirs male by his first. This title continued near two hundred years in the younger branch, until, upon its failure in the late duke of Somerset, Sir Edward Seymour, the present duke, the heir by the prior marriage, succeeded by virtue of the remainder.

In the case of lord Purbeck, in Charles the Second’s reign, it was controverted whether a title could be extinguished, for as lord Purbeck had surrendered his honour by fine to the king, and there it was determined, and so the law now stands, contrary to many precedents that were produced, that the title is inherent in the blood, and while that remains uncorrupted, can by no means be extinguished by surrender or otherwise, and this, generally, whether the peerage be created by patent or by writ; for Purbeck’s was by writ. In case of a patent where the dignity is expressly entailed, it is surely as reasonable that it should be impossible for the possessor to destroy the entail, as in an estate tail of land, created by the king, and yet in old times there had been many instances to the contrary. I shall mention but two that happened in this kingdom.

Sir Thomas Butler was created baron Cahir by Henry the Eighth to his heirs general. His heirs male failed in his son Edmond, the second baron, and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created baron Cahir; but it being found that Sir Thomas left daughters, to one of whom the title ought to have been assigned by the queen, one of them, and the heir of the other, who was dead in 1685, bargained, sold, and released to Sir Theobald and his assigns, their right and title to the said honour. The other was the case of the honour of Kingsale. Charles the First, apprehending the barony of Kingsale to be extinguished by attainder, created Sir Dominick Sarsfield viscount Kingsale, but, upon lord Kingsale’s petition, and proof made by him that his barony still subsisted, it was ordered that Sarsfield should surrender his viscounty of Kingsale, and be treated viscount of Kilmallock, with his former precedence, which was accordingly done.

These two instances were, indeed, of a particular nature, and calculated to rectify grants that had arisen from error; but in England there were, in ancient times, many instances of such surrenders without error. They were, indeed, generally made in order to obtain higher titles; and therefore it is no wonder they passed _sub silentio_, and were never disputed. But as to the old baronies by tenure that were annexed to land, nothing is clearer than that, by the king’s consent, they might be aliened or surrendered, notable instances of which happened in the reign of Henry the Third. Andrew Giffard, baron of Pomfret, surrendered to the king; and Simon de Montfort, a nobleman of large possessions in France, had two sons by the heiress of the earldom of Leicester, in whose right he was earl of Leicester, and, having a mind to settle his second son in England, assigned the earldom over to him, as Selden says; or, which comes to the same thing (for the eldest son was equally defeated) surrendered it to the king, who granted it to the second, according to Camden.

All noblemen are equally so, and, therefore, each others peers; but they differ in rank and precedence. The ranks are five; _dukes_, _marquisses_, _earls_, _viscounts_, _barons_. The first duke was created by Edward the Third; the first marquiss, by Richard II.; the first viscount, by Henry the Sixth. Though their dignities are now personal, and annexed to the blood, yet as they were originally annexed to land, so much of the old form remains, that, in their creation, they must be named from some place in some county; though I do not apprehend it to be material at this day, whether there really be such a place or not. With respect to the raising a lord from a lower degree of dignity to a higher, I should observe, that long before Henry the Seventh’s time, the king had the right solely in himself, though it was frequently done in parliament; for this was not adding to the number of the peers, but an exertion of the ancient prerogative of his settling precedence according to his pleasure. This continued in England till Henry the Eighth, by act of parliament, settled it according to antiency, and it still continues in Ireland, though it has not been exerted since Henry the Seventh’s time, when lord Kingsale, a Yorkist, was obliged to change places with lord Athenry, a Lancastrian, and from first became the second baron, which hath continued his rank, till lately, that Athenry was created an earl[260].

LECTURE XXI.

_Earls or Counts as distinguished from Barons—The office of
Counts—Their condition after the conquest—Counties Palatine in
England—Counties Palatine in Ireland—Spiritual Peers—The trials
of Noblemen._

In my last lecture I treated of baronies, which are the lowest rank of peerage, and of the right whereby this class of nobles sits in the great council of the nation, and also of the various methods that have prevailed in different ages of creating them; but before I have done with the higher nobility, it will be necessary to say something of _earls_ or _counts_ as distinguished from barons; for they differ from them, not only in having a greater number of knights fees, and consequently having a greater revenue, but in possessing also a more extensive jurisdiction. The institution of _counts_, I observed in a former lecture, wherein I treated of the progress of the feudal law, was not, originally, a part of the feudal policy. They were, indeed, always chosen out of the king’s companions, who resided in his house, and were therefore called _comites_, but they were not set to preside over Germans, who were the conquerors, but over such of the old inhabitants, Romans or Gauls, who by a voluntary submission had retained their freedom, and who in every respect, except bearing a share in the legislature or government, were on an equal footing with the conquerors[261].

The office of these counts was threefold, to judge these freemen in peace, to conduct them in war, to manage the king’s demesnes in their respective districts, and to account with him for them and the profits of his courts of justice; which were very considerable when all offences were punished by fines. At the beginning they were temporary officers, but they soon became fixed for life, and at length, towards the latter end of the second, and in the beginning of the third race in France, they got, through the weakness of the crown, estates in fee in their counties; and either by grants of the kings, or by usurpation, converted the profits they before accounted for to the crown, for their own use, and held their courts in their own name. In short, they became petty sovereigns, paying only homage, and the usual services of ward, marriage, and relief to their supreme lord; and as such they coined money, levied war against their neighbours, nay frequently against the king himself; until Lewis the Eleventh found the means of humbling them, and brought the crown out of tutelage, as the French express it[262].

The present state of Germany is an exact representation of what the French and the other continental monarchies were in those days, except that the kings had large countries, and multitudes of vassals immediately subject to them; whereas the emperor hath now none. But in England these lords, tho’ very powerful, never ascended to such a pinnacle of grandeur. Their first constitution here we must refer to the time of the division of England into counties, to which they had a reference, which is generally ascribed to Alfred. Their power and office was exactly the same with the counts on the continent in those early times, namely, to judge and lead the freemen to war. For the greatest part of the lands of England were at that time allodial, as is proved by Spelman, contrary to the opinion of Sir Edward Coke; although, with him, it must be allowed, that there were fiefs also before the Conquest, and that they were not all introduced at that period. Till that time their office was only for life, and they were known by various names, as _duces_, _comites_, and _consules_ in Latin, _ealdermen_ in Saxon, and _earls_ in the Danish tongue[263].

But William, having turned all the lands into feudal, was obliged to put his earls on the same footing, that those on the continent were in his time, and consequently to make them hereditary. However he and his successors were careful not to give them such extensive powers and revenues as they had abroad. The county courts were held in the king’s name, neither were the earls allowed the whole profits of them, two-thirds of them being reserved to the king; and in appearance to ease them, who were often obliged to attend in council or in war, but in reality to prevent the king’s being defrauded, and to prevent the too great influence which their judging in person might acquire to them in their districts, officers chosen by the people, and approved by the king, were substituted to administer justice under the names of _vice comites_, or sheriffs; these were to pay to the king the two-thirds, and to the earl his third of the profits, which was in those times looked upon as so incident to an earldom, as to pass with it, although express words were wanting; so that in those times an earl and a county were correlatives[264].

Each earl took his title from some one county, and the number of the one could not exceed that of the other. King John, however, altered their nature in some measure, and his example has been followed in depriving the earl of the thirds of the county profits; for he created Henry de Bohun earl of Hereford, and granted to him twenty pounds yearly, to be received out of the third penny of the county in lieu thereof. But it is plain that the justice and success of this invention was doubted of at first, for John took a collateral security from the earl, that he should never in his earldom claim any more than the twenty pounds expressly granted him. These sums, so granted, are called _creation money_, and were formerly expressly granted out of the third penny of the county; but of late have been made payable at the Exchequer. Such was the nature of the ancient earldoms that were by tenure, and had reference to counties. The modern ones, that are merely honorary, and go with the blood, were first made in parliament. Afterwards the king was allowed, by his sole authority, to advance a baron to a higher rank; for that was not adding to the number of the peers; but the creation of a bare gentleman a peer at once hath only been practised since the accession of Henry the Seventh[265].

Before I quit this head of earldoms, it will be proper to say somewhat about _counties palatine_ which had extraordinary privileges, like unto the counties and duchies abroad. The first was that of Chester, erected by the Conqueror, in favour of his nephew Hugh Lupus, in these words: _Totumque hunc comitatum tenendum sibi & hæredibus, ita libere ad gladium, sicut ipse rex tenet Angliam ad coronam_. The effect of this creation was to have _jura regalia_; for the earl palatine might pardon treason, murder, and other offences, might make justices of assize, gaol delivery, and of the peace; might create barons of his county palatine, and confer knighthood. They had likewise all forfeitures, that arose by the common law, or by any prior statute; but forfeitures arising from statute, made after the erection of the county palatine, belonged to the king. They had courts as the king had at Westminster, and out of their chancery issued all writs, original and judicial. Neither did the king’s writs run within the county palatine, except writs of error, which were in the nature of appeals, or in cases where, otherwise, there would be a failure of justice. All manner of indictments and processes were made in the name, and every trespass was laid to be done against the peace of him that had the county palatine. But these and some other privileges have been taken away, and annexed to the crown, in whose name they must now be; but the _teste_ of the writs is still in the name of the earl palatine[266].

Of these counties palatine there are now in England four, Lancaster united to the crown, Chester to the principality of Wales; Durham and Ely, each belonging to the bishop of the place; but the privileges of these two are going fast into disuse. But in this kingdom, (Ireland) for the encouragement of adventurers, the whole country, as fast as it could be reduced, was erected into palatinates, and very little, except the cities, retained in the king’s hand. The making so many great lords, who had frequent quarrels with each other, and that at such a distance from the seat of government, was one great occasion of the slowness of the settlement of the kingdom. For, to strengthen themselves, such of them as resided here attached the natives to them, and taught them the use of arms, and others that dwelt in England entirely neglected to send hither any defence, so that, by the end of Edward the Third’s time, the Irish had repossessed themselves of almost the whole kingdom, if we except five or six counties; whereas in John’s reign they held not above half, and that under homage and tribute, either to the king, or the lords, who had grants from him.

I shall give a short detail of these palatinates, and an account of the manner of their distinguishment. The present county of Gallway, under the name of the county of Cannaught, was a palatinate in the De Burghs; as was Ulster, first in De Courcy, then in De Lacy; and these two were united by De Burgh’s marriage with Lacy’s daughter, and afterwards descended to Lionel of Clarence’s daughter, who married the earl of March, and, in the person of Edward the Fourth, merged in the crown. In the same prince, likewise, merged that of Meath, which, being in another branch of the Lacy’s, was divided into the eastern and western between two daughters. The former came by descent to the house of March, and so to Edward the Fourth. Strongbow had the grant of Leinster as a Palatinate, which at length was divided into five distinct ones between his grand-daughters, who being married to English noblemen, took no care for the defence of the country, their titles, estates, and Jura Regalia were taken from them by act of parliament, under Henry the Eighth.

Kildare, being in the hands of the earl of that name, escaped for a little time, until he was attainted under the same king, where it ended; for though his heir was restored to the title and estate by queen Mary, it was with an express exception of the palatinate. The kingdom of Cork, containing that county and the south of Kerry, was another palatinate, granted to Fitz Stephen and Cogan, who made partition between them; and on Fitz Stephen’s death without issue, his part escheated to the crown. Cogan’s share should have gone to the Courcey’s and Carens, but they could never obtain the possession of it; for the earl of Desmond got the estate by purchase from a Cogan who pretended a right, and held it; so this share of the palatinate fell likewise into disuse. Desmond, indeed, had interest enough to get a new palatinate created for himself in the county of Kerry, called Desmond, which for repeated rebellions was justly forefeited to queen Elizabeth.

Edward the Third erected the palatinate of Tipperary in favour of the earl of Ormond, who was grandson to Edward the First, which continued in that family, with some interruptions, until the attainder of the late duke in 1715. Thus by degrees the crown regained the power it had parted with, and was at length enabled, though with difficulty, to reduce the whole kingdom, which had been well nigh lost by means of such profuse grants.

Besides the temporal peers, there are spiritual ones, that is the bishops, and, they have seats in parliament, which antiently many abbots also enjoyed. The original of this right was from the feudal customs. The priests of the Germans, while they continued pagans, were necessary attendants in their general assemblies, not only for advice, but the benefit of their prayers and divinations. When these nations embraced Christianity, they transferred the same veneration and honour to their new instructors and bishops; and sometimes other churchmen of eminence, though they held lands not by military tenure, but by what is called _free alms_, were, in every nation as well as England, members of the states of parliaments. But since the conquest they have begun to sit by another right, namely by their baronies; the conqueror having converted their estates in free alms into baronies, and to their great mortification, subjected them to military service[267].

Upon this head several questions have been propounded, as how far they are lords of parliament, and whether the clergy are a third estate of the realm, and sit solely in that right. This is a question of some importance, because if they make a distinct estate, no law would be good to which the majority of them did not consent. Certain it is that in France, the clergy made one estate, the nobility the second, the burghers the third; and in Sweden the peasants make the fourth, all sitting in distinct houses, the majority of each of which must concur. And therefore I do believe, that when, in England, we talk of _three estates_, the clergy, not the bishops alone, make one of them, contrary to the modern opinion, that the king is the first estate, and the bishops and the nobility the second; for the king is in no country reckoned one of the estates, but the head of all. However from this no argument can be drawn that the bishops should sit separately, or that a majority of them, as representing the clergy, should concur.

As to sitting separately, it is pretty clear that, by the old law, none were members of parliament, but the immediate military tenants of the king, and that they sat all in one house, however their titles and fortune might differ; being all equal as to rank, with respect to the king, and all having the same rights. The division of parliament into two houses was never known in Scotland, who, in all probability, modelled their constitution from their neighbours; nor doth it appear in England previous to Edward the First, but arose, probably, from the great barons disdaining to sit, as equals with citizens and burgesses. For even, after this time, they did not disdain to associate with the knights of the shires, who represented the minor barons, and other military tenants, as appears by many instances. But for a number of centuries past the gentry, which were formerly considered as a lower noblesse, and are so abroad, have been melted into one body with the other commoners[268].

If then there was originally but one house, and if, since the division, the bishops have constantly sat in the house of peers, there can be no pretence for any privilege for them more than for the body of barons or earls. It is urged, likewise, that several valid acts of parliament were passed without any bishop present; but this happened only in distracted times; and, whoever might think it prudent or proper to absent themselves at a particular season, it will hardly be said to be a good parliament when they were not summoned; and if, at any time, they refused to attend, there was no reason why the public business should stop, as they sat, not as an independent constituent part of parliament, but each distinctly for himself, in right of his barony. From these occasional and general absences of theirs, an opinion grew up by degrees, and now is established law, that there is a material difference between bishops and lay lords, in respect to their nobility. In truth, that they are not peers to each other, and consequently that a bishop cannot sit in judgment on the life of a peer, neither is he to be tried by the peers, but by a jury of commoners.

It is worth while to see how these opinions grew up; for, from the original constitution, every bishop, being a baron by tenure, and having a fee simple therein, had certainly as great right as other barons; but the canon law having forbid any ecclesiastics being concerned in matters of blood, and they being obliged by the common law to attend judgments in parliament, were in a great streight between the two laws, how to act when a peer was capitally accused. They at length obtained from Henry the Second in the constitutions of Clarendon, the following allowance: _Et sicut cæteri barones debent interesse judiciis curiæ, regis quousque perveniatur ad diminutionem membrorum, vel ad mortem_; where the last words are plainly an exception in their favour, in derogation to the common law, on account of their peculiar circumstances under the canon. However, as many questions might arise before it came to the last vote, that might intirely influence the final determination, they used to absent themselves totally, and this going on for ages, and the feudal baronies wearing out, and all titles becoming fixed to the blood, not to the land, they came to be considered as peers of a different nature, because their blood did not succeed, and that which was first a favourable permission, was construed a prohibition; and when this was once established, it followed necessarily, that, not being peers to the nobility by blood, they must be tried by commoners[269].

With respect to the trials of noblemen, now I have said so much on that head, I shall observe, they were carried on in two different methods. Either the accused person was tried in parliament, and then all the temporal lords had voices, or he was tried by a jury of peers; that is the king appointed twenty-four noblemen for that purpose: A law that has proved fatal to many noblemen, who happened to fall under the displeasure of the court. A commoner hath a right to prevent the sheriffs returning a jury to try him, if he can shew a just exception to the sheriff; and after the return is made, he can challenge a certain number for causes known only to himself, and as many more as he can prove sufficient matter of exception to. Such care did the law take of the lives of the commons, but no exception lay for a peer to the king’s return. The law would not suppose the least partiality in him, even in his own cause; neither would it suspect that a peer could be biassed by any consideration from doing strict justice, and therefore no challenge lay against him for any cause, however strong and notorious; and the same confidence is the reason why they give their votes, guilty or not guilty, not upon their oaths, but upon their honours.

I can scarce imagine that this method of trial could have prevailed in the times of the great power of the barons, when they often made the crown to totter; neither have I been able to discover its beginning. Certain it is that, in the reigns of the Plantagenets most, if not all noblemen, were tried in full parliament; and as certain it is, that, during the reigns of the Tudors and Stuarts, the other was universally followed; insomuch that every nobleman was sure either to suffer or escape, according as the court was at that time affected towards him. At length, after many struggles, about 1695, the bill for regulating trials for high treason and misprision of treason was passed; one clause of which provides, that on the trial of peers, every lord who hath a right to vote in parliament, shall be summoned, and have a right to vote. Thus was the inconvenience attending the king’s naming the jury remedied; but the law in the other point stands as before, that no peer can be challenged. According to this law have all trials of Irish peers proceeded since that time, though there is no act for that purpose in this kingdom[270].

LECTURE XXII.

_The share of the Commons in the Legislature—The Armigeri or
Gentry—Knights Bannerets—The nature of Knighthood altered
in the reign of James I.—Knights Baronets—Citizens and
Burghers—The advancement of the power and reputation of the
Commons._

Having given a general idea of the lords, and their share of the legislature, it will now be proper to descend, and see the several classes of the lower rank, called _Commons_, and to examine what share or influence they had formerly, or now enjoy, in the government. The commoners may, in general, then, be divided into the _lesser nobility_, or _gentry_, and the others, whom, for distinction sake, I shall call the _lower commons_. For although, since the reign of Henry the Eighth, many men of the best families, and some descended from the nobility, have engaged in commerce, and thereby brought lustre to that order of men, before that time all persons engaged in trade were held in as much contempt by the gentry of England, as they are at present, by those of any nation; and a gentleman who employed himself in hunting, or perhaps serving the king, or some great lord, was looked upon to have degraded himself.

The gentry were called _Armigeri_, because they fought on horseback, in compleat armour, covered from head to foot; whereas the infantry’s defensive arms were of a slighter kind, and no compleat covering. But we are not to imagine that all who fought on horseback compleatly armed, were gentry; for, in order to compleat their squadrons, men of the lower ranks, who, by their strength of body, and military skill, were capable of service, were admitted, but this did not make them gentlemen. Hence, in our old histories, we find the _knights and esquires_, that is, the real gentry, carefully distinguished from the _men at arms_. The peculiar privilege of the gentry was the bearing on their shields certain marks, to distinguish them from each other, and the men at arms called _Coats of Arms_. At first they were personal privileges, and not inherent in the blood, and the marks and rewards of some personal act of bravery performed by the bearer; so we find in the romances, that a new knight was to wear plain white, until, by some exploit, he merited a mark. The general opinion is, that they were first introduced at the time of the crusades, which I believe is pretty just, at least with respect to our country: for the imperial crown of England had no arms before the conquest. The Norman kings bore the arms of Normandy, _two leopards passant_, to which Richard the First added that of Guienne, another leopard passant, and so composed this English coat, in which, among other alterations, the leopards have since been changed to lions[271].

For the further encouragement of valour, these marks became transmissible to heirs, not to the eldest son only, as lands, but to all the sons; saving that the younger were to take some addition, for distinction sake. While these coats were granted by the king alone, and that for real service done, and consequently were not too common; and while the custom of wearing compleat armour remained, and the office of high constable (the judge in such matters) continued, the gentry were very curious in preserving these distinctions, and vindicating them from usurpation. But as the military disposition of our gentry hath greatly subsided since the loss of the provinces in France, and the kings at arms have assumed the power of giving coats, nicety in these respects hath long since expired; and now, as in a commercial country, especially, it should be, education and behaviour are sufficient criterions of a gentleman.

I shall therefore say no more of them, as distinguished from the rest of the commonalty, but observe, that of these there are two ranks, _knights_ and _esquires_, or gentlemen. For though we now make a distinction between these two last, the old law knew none, nor is it now a misnomer, in a writ of pleadings, to stile an esquire a gentleman, or the contrary. The holding of a knight’s fee did not make a man of that order, but there were particular ceremonies required for the purpose. For the original design of the institution of _dubbing knights_, was that, after a person had, by performing military exercises, shewn that he had properly accomplished himself, and was capable of that honourable service in the field, in his proper person, he should, by a public solemnity, be openly declared so. No wonder, then, that the highest nobility, the sons of kings, nay kings themselves, thought this title an addition to their dignity, as it was then an infallible proof, that they had not degenerated from the virtue of their ancestors[272].

But among knights there were some of a more distinguished kind (I do not mean to speak of particular orders, such as those of the garter and others) called _Bannerets_, as knights in general were made, upon their proving themselves by exercises capable of service. These were never made but for an actual exploit in war, and then were dubbed with great solemnity under the royal banner. Their distinction was bearing a little banner, annexed to the wooden part of their lance, adjoining the iron point; as, originally, every man who had a whole knight’s fee, or the amount thereof in parts of fees, was obliged to serve in person, and was not allowed a proxy, but in cases of necessity every such person was obliged to appear upon the king’s summons, to shew himself qualified, and to receive the order of knighthood. This power continued in the king, even after the military tenants were discharged of personal attendance on sending another, or paying escuage, and came to be considered as a profitable fruit of the king’s seignory, and was frequently used as an expedient to raise money, by obliging the unqualified, or those who had no mind to the expence or fatigue of attending, to compound[273].

This right of composition was established by act of parliament, the first of Edward the Second, which likewise fixes the estate the persons summoned must have at twenty pounds a year, the quantity of a knight’s fee; twenty pounds a year was indeed the valuation of a knight’s fee at the time of the conquest, but by change of times, in Edward the Second’s reign, it may well be esteemed forty; so that by this act a man who had half a knight’s fee was liable to be summoned. This was one of the unhappy means made use of by king Charles the First to procure money when he quarrelled with his parliament. He was sensible, indeed, of a difference in the value of money, and therefore summoned none but such as had forty pounds a-year; but had he paid due attention to its real rise, he should have summoned none under an hundred and twenty. For in Edward’s reign a pound in money was a real pound in silver, whereas in Charles’s, it was but a third part, and so the proportion was to sixty pound sterling, and sixty more is the least rise that can be allowed for the improvements in the value of lands, by the intermediate increase of commerce. No wonder, therefore, that his people looked upon it as an unsupportable grievance. Accordingly, in the 17th of his reign, the act of Edward the second was repealed, and in Ireland, it vanished with the tenures on which it depended[274].

The great change in the nature of knighthood happened in the reign of James the First. The Plantagenets never created any persons such but with a view to military merit, except their judges. The Tudors extended it to persons who had served them well in civil stations, but so sparingly, and to persons of such evident merit, that it still was an encouragement to those that deserved well of the public. But James, who had a passion for creating honours, poured forth his knighthoods, without regard to desert, with so lavish an hand, confirming them for money frequently on wealthy traders, and others without any apparent public merit, that thereby, as also by creating an order of hereditary knights, called _baronets_, a knighthood soon lost the badge of merit it before had carried.

The occasion of creating baronets was this. On the escheat of the six counties in Ulster, they were planted with colonies of Scotch and English; and, as it was necessary to support a standing army there, for some years after, for the defence of the infant settlements, and money was wanting for that purpose, as, in that reign, it always was for every other, this scheme of creating an order of hereditary knights, to take place after the barons, was fixed upon for that purpose. At first it had some aspect towards military service, for each of them was obliged to maintain so many soldiers in the plantation, for a limited time; and to make the honour more valuable, and to get the better terms for it in the first plan, it was provided, that no more than two hundred should be originally created; and when any of them failed, no new ones to be created in their room. But it was soon seen that these new knights, when they had once attained their dignities, might not duly perform the services they engaged for. The maintaining the soldiers, therefore, was commuted into a sum paid to the king, who undertook to do it; and had he been a good œconomist, it would have been a prudent precaution, but whatever sums he could lay his hands on were always at the mercy of his reigning favourite. He was, therefore, obliged to depart from his intended limitation, and to exceed his number; and yet, after all, the service was not done so well as it should have been. His successors have followed his example, in adding to the number, which now is certainly unlimited[275].

Next to the gentry, or military order, in estimation among the northern nations stood the _citizens_ and _burghers_, that is, the trading part of the nation, whether merchants or artificers. These were for some ages held in a very low light, none of the conquerors or their defendants applying themselves to such occupations. They were, indeed, at first, allowed certain privileges and enjoyed their own laws, under the inspection of magistrates appointed by the king, known by the name of _Præpositi_, _Provosts_, or some other equivalent title. But these liberties did not last long. The turbulent temper of the times, the frequent competitions for the throne, and the many rebellions of the great lords, occasioned the towns and their inhabitants to be taken in war, one after another; and the persons so taken, were, by the prevailing _Jus Gentium_ of these ages reduced to servitude; not, however to a condition so low as the _villeins_, who were, properly, the slaves of those people, and had no property but at the will of their lords. However it is, no state, except one absolutely barbarous, could subsist without artizans; and as commerce is the parent of wealth, and as neither it, nor arts, could thrive where property is not, in some sort, secure, the lords were in some degree, by their own interest, obliged to relinquish to these people the seizing of their goods at pleasure, as they practised towards their villeins, and to leave them at liberty to make regulations among themselves for the benefit of trade[276].