Chapter XII: Part III: The English Constitution (10)

[296] It is worthy of observation that the spiritual peers summoned to parliament were in general considerably more numerous than the temporal. Prynne, p. 114. This appears, among other causes, to have saved the church from that sweeping reformation of its wealth, and perhaps of its doctrines, which the commons were thoroughly inclined to make under Richard II. and Henry IV. Thus the reduction of the spiritual lords by the dissolution of monasteries was indispensably required to bring the ecclesiastical order into due subjection to the state.

[297] Perhaps it can hardly be said that the king's prerogative compelled the party summoned, not being a tenant by barony, to take his seat. But though several spiritual persons appear to have been discharged from attendance on account of their holding nothing by barony, as has been justly observed, yet there is, I believe, no instance of any layman's making such an application. The terms of the ancient writ of summons, however, in fide et _homagio_ quibus nobis tenemini, afford a presumption that a feudal tenure was, in construction of law, the basis of every lord's attendance in parliament. This form was not finally changed to the present, in fide et _ligeantia_, till the 46th of Edw. III. Prynne's first Register, p. 206.

[298] Collins's Proceedings on Claims of Baronies, p. 24 and 73.

[299] Prynne speaks of "the alienation of baronies by sale, gift, or marriage, after which the new purchasers were summoned instead," as if it frequently happened. First Register, p. 239. And several instances are mentioned in the Bergavenny case (Collins's Proceedings, p. 113) where, land-baronies having been entailed by the owners on their heirs male, the heirs general have been excluded from inheriting the dignity.

[300] Prynne's first Register, p. 237. This must be understood to mean that no new families were summoned; for the descendants of some who are not supposed to have held land-baronies may constantly be found in later lists. [Note IX.]

[301] West's Inquiry. Prynne, who takes rather lower ground than West, and was not aware of Sir Henry de Bromflete's descent, admits that a writ of summons to any one, naming him baron, or dominus, as Baroni de Greystoke, domino de Furnival, did give an inheritable peerage; not so a writ generally worded, naming the party knight or esquire, unless he held by barony.

[302] Lord Abergavenny's case, 12 Coke's Reports; and Collins's Proceedings on Claims of Baronies by Writ, p. 61.

[303] Prynne's first Register, p. 232. Elsynge, who strenuously contends against the writ of summons conferring an hereditary nobility, is of opinion that the party summoned was never omitted in subsequent parliaments, and consequently was a peer for life. p. 43. But more regard is due to Prynne's later inquiries.

[304] Case of Willoughby, Collins, p. 8; of Dacres, p. 41; of Abergavenny, p. 119. But see the case of Grey de Ruthin, p. 222 and 230, where the contrary position is stated by Selden upon better grounds.

[305] It seems to have been admitted by Lord Redesdale, in the case of the barony of L'Isle, that a writ of summons, with sufficient proof of having sat by virtue of it in the house of lords, did in fact create an hereditary peerage from the fifth year of Richard II., though he resisted this with respect to claimants who could only deduce their pedigree from an ancestor summoned by one of the three Edwards. Nicolas's Case of Barony of L'Isle, p. 200. The theory, therefore, of West, which denies peerage by writ even to those summoned in several later reigns, must be taken with limitation. "I am informed," it is said by Mr. Hart, _arguendo_, "that every person whose name appears in the writ of summons of 5 Ric. II. was again summoned to the following parliament, and their posterity have sat in parliament as peers." p. 233.

[306] Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, 424; vol. iv. p. 374. Rymer, t. vii. p. 161.

[307] Selden's Works, vol. iii. p. 764. Selden's opinion that bannerets in the lords' house were the same as barons may seem to call on me for some contrary authorities, in order to support my own assertion, besides the passages above quoted from the rolls, of which he would naturally be supposed a more competent judge. I refer therefore to Spelman's Glossary, p. 74; Whitelocke on Parliamentary Writ, vol. i. p. 313; and Elsynge's Method of holding Parliaments, p. 65.

[308] Puis un fut chalenge purce qu'il fut a banniere, et non allocatur; car s'il soit a banniere, et ne tient pas par baronie, il sera en l'assise. Year-book 22 Edw. III. fol. 18 a. apud West's Inquiry, p. 22.

[309] Rot. Parl. vol. iv. p. 201.

[310] Pinkerton's Hist. of Scotland, vol. i. p. 357 and 365.

[311] The lords' committee do not like, apparently, to admit that bannerets were summoned to the house of lords as a distinct class of peers. "It is observable," they say, "that this statute (5 Ric. II. c. 4) speaks of bannerets as well as of dukes, earls, and barons, as persons bound to attend the parliament; but it does not follow that banneret was then considered as a name of dignity distinct from that honourable knighthood under the king's banner in the field of battle, to which precedence of all other knights was attributed." p. 342. But did the committee really believe that all the bannerets of whom we read in the reigns of Richard II. and afterwards had been knighted at Crecy and Poictiers? The name is only found in parliamentary proceedings during comparatively pacific times.

[312] West, whose business it was to represent the barons by writ as mere assistants without suffrage, cites the writ to them rather disingenuously, as if it ran vobiscum et cum prelatis, magnatibus ac proceribus, omitting the important word caeteris. p. 35. Prynne, however, from whom West has borrowed a great part of his arguments, does not seem to go the length of denying the right of suffrage to persons so summoned. First Register, p. 237.

[313] These descended from two persons, each named Geoffrey le Scrope, chief justices of K.B. and C.B. at the beginning of Edward III.'s reign. The name of one of them is once found among the barons, but I presume this to have been an accident, or mistake in the roll; as he is frequently mentioned afterwards among the judges. Scrope, chief justice of K.B., was made a _banneret_ in 14 E. III. He was the father of Henry Scrope of Masham, a considerable person in Edward III. and Richard II.'s government, whose grandson, Lord Scrope of Masham, was beheaded for a conspiracy against Henry V. There was a family of Scrupe as old as the reign of Henry II.; but it is not clear, notwithstanding Dugdale's assertion, that the Scropes descended from them, or at least that they held the same lands: nor were the Scrupes barons, as appears by their paying a relief of only sixty marks for three knights' fees. Dugdale's Baronage, p. 654.

The want of consistency in old records throws much additional difficulty over this intricate subject. Thus Scrope of Masham, though certainly a baron, and tried next year by the peers, is called chevalier in an instrument of 1 H. V. Rymer, t. ix. p. 13. So in the indictment against Sir John Oldcastle he is constantly styled knight, though he had been summoned several times as lord Cobham, in right of his wife, who inherited that barony. Rot. Parl. vol. iv. p. 107.

[314] Blomefield's Hist, of Norfolk, vol. iii. p. 645 (folio edit).

[315] Rot. Parl. vol. iii. p. 427.

[316] Rot. Parl. vol. ii. p. 290.

[317] vol. iii. p. 209.

[318] Id. p. 263, 264.

[319] vol. iv. p. 17.

[320] Id. p. 401.

[321] West's Inquiry, p. 65. This writer does not allow that the king possessed the prerogative of creating new peers without consent of parliament. But Prynne (1st Register, p. 225), who generally adopts the same theory of peerage as West, strongly asserts the contrary; and the party views of the latter's treatise, which I mentioned above, should be kept in sight. It was his object to prove that the pending bill to limit the numbers of the peerage was conformable to the original constitution.

[322] Hody's History of Convocations, p. 12. Dissertatio de antiqua et moderna Synodi Anglicani Constitutione, prefixed to Wilkins's Concilia, t. 1.

[323] 2 Gale, Scriptores Rer. Anglic, t. ii. p. 355; Hody, p. 345. Atterbury (Rights of Convocations, p. 295, 315) endeavours to show that the clergy had been represented in parliament from the Conquest as well as before it. Many of the passages he quotes are very inconclusive; but possibly there may be some weight in one from Matthew Paris, ad ann. 1247 and two or three writs of the reign of Henry III.

[324] Hody, p. 381; Atterbury's Rights of Convocations, p. 221.

[325] Hody, p. 386; Atterbury, p. 222.

[326] Hody, p. 391.

[327] Gilbert's Hist. of Exchequer, p. 47.

[328] Rot. Parl. vol. i. p. 189; Atterbury, p. 229.

[329] The lower house of convocation, in 1547, terrified at the progress of reformation, petitioned that, "according to the tenor of the king's writ, and the ancient customs of the realm, they might have room and place and be associated with the commons in the nether house of this present parliament, as members of the commonwealth and the king's most humble subjects." Burnet's Hist. of Reformation, vol. ii.; Appendix, No. 17.

This assertion that the clergy had ever been associated as one body with the commons is not borne out by anything that appears on our records, and is contradicted by many passages. But it is said that the clergy were actually so united with the commons in the Irish parliament till the Reformation. Gilbert's Hist. of the Exchequer, p. 57.

[330] Hody, p. 392.

[331] The praemunientes clause in a bishop's writ of summons was so far regarded down to the Reformation, that proctors were elected, and their names returned upon the writ; though the clergy never attended from the beginning of the fifteenth century, and gave their money only in convocation. Since the Reformation the clause has been preserved for form merely in the writ. Wilkins, Dissertatio, ubi supra.

[332] Hody, p. 396. 403, &c. In 1314 the clergy protest even against the recital of the king's writ to the archbishop directing him to summon the clergy of his province in his letters mandatory, declaring that the English clergy had not been accustomed, nor ought by right, to be convoked by the king's authority. Atterbury, p. 230.

[333] Hody, p. 425. Atterbury, p. 42, 233. The latter seems to think that the clergy of both provinces never actually met in a national council or house of parliament, under the praemunientes writ, after the reign of Edward II., though the proctors were duly returned. But Hody does not go quite so far, and Atterbury had a particular motive to enhance the influence of the convocation of Canterbury.

[334] Atterbury, p. 46.

[335] Rot. Parl. vol. ii. p. 64, 65.

[336] 18 E. III. stat. 3. Rot. Parl. vol. ii p. 151. This is the parliament in which it is very doubtful whether any deputies from cities and boroughs had a place. The pretended statutes were therefore every way null; being falsely imputed to an incomplete parliament.

[337] Rot. Parl. vol. ii. p. 151.

[338] 25 E. III. stat. 3.

[339] p. 368. The word _they_ is ambiguous; Whitelocke (on Parliamentary Writ, vol. ii. p. 346) interprets it of the commons: I should rather suppose it to mean the clergy.

[340] 50 E. III. c. 4 & 5.

[341] Rot. Parl. vol. iii. p. 25. A nostre tres excellent seigneur le roy supplient humblement ses devotes oratours, les prelats et la clergie de la province de Canterbirs et d'Everwyk. Stat. 1 Richard II. c. 13, 14, 15. But see Hody, p. 425; Atterbury, p. 329.

[342] Rot. Parl. vol. iii. p. 37.

[343] It might be argued, from a passage in the parliament-roll of 21 R. II., that the clergy of both provinces were not only present, but that they were accounted an essential part of parliament in temporal matters, which is contrary to the whole tenor of our laws. The commons are there said to have prayed that, "whereas many judgments and ordinances formerly made in parliament had been annulled _because the estate of clergy had not been present thereat_, the prelates and clergy might make a proxy with sufficient power to consent in their name to all things done in this parliament." Whereupon the spiritual lords agreed to intrust their powers to Sir Thomas Percy, and gave him a procuration commencing in the following words: "Nos Thomas Cantuar' et Robertus Ebor' archiepiscopi, ac praelati _et clerus utriusque provinciae Cantuar' et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes jus interessendi in singulis parliamentis_ domini nostri regis et regni Angliae pro tempore celebrandis, necnon tractandi et expediendi in eisdem quantum ad singula in instanti parliamento pro statu et honore domini nostri regis, necnon regaliae suae, ac quiete, pace, et tranquillitate regni judicialiter justificandis, venerabili viro domino Thomae de Percy militi, nostram plenarie committimus potestatem." It may be perceived by these expressions, and more unequivocally by the nature of the case, that it was the judicial power of parliament which the spiritual lords delegated to their proxy. Many impeachments for capital offences were coming on, at which, by their canons, the bishops could not assist. But it can never be conceived that the inferior clergy had any share in this high judicature. And, upon looking attentively at the words above printed in italics, it will be evident that the spiritual lords holding by barony are the only persons designated; whatever may have been meant by the singular phrase, as applied to them, clerus utriusque provinciae. Rot. Parl. vol. iii. p. 348.

[344] Atterbury. p. 346.

[345] 21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. 47) led me to this act, which I had overlooked.

[346] Rot. Parl. vol. iii. p. 582. Atterbury, p. 61.

[347] The ensuing sketch of the jurisdiction exercised by the king's council has been chiefly derived from Sir Matthew Hale's Treatise of the Jurisdiction of the Lords' House in Parliament, published by Mr. Hargrave.

[348] The words "privy council" are said not to be used till after the reign of Henry VI.; the former style was "ordinary" or "continual council." But a distinction had always been made, according to the nature of the business: the great officers of state, or, as we might now say, the ministers, had no occasion for the presence of judges or any lawyers in the secret councils of the crown. They become, therefore, a council of government, though always members of the _consilium ordinarium_; and, in the former capacity, began to keep formal records of their proceedings. The acts of this council though, as I have just said, it bore as yet no distinguishing name, are extant from the year 1386, and for seventy years afterwards are known through the valuable publication of Sir Harris Nicolas.

[349] Rot. Parl. vol. iii. p. 84.

[350] Ibid. p. 266.

[351] 25 E. III. stat. 5, c. 4. Probably this fifth statute of the 25th of Edward III. is the most extensively beneficial act in the whole body of our laws. It established certainty in treasons, regulated purveyance, prohibited arbitrary imprisonment and the determination of pleas of freehold before the council, took away the compulsory finding of men-at-arms and other troops, confirmed the reasonable aid of the king's tenants fixed by 3 E. I., and provided that the king's protection should not hinder civil process or execution.

[352] 28 E. III. c. 3.

[353] 42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295. It is not surprising that the king's council should have persisted in these transgressions of their lawful authority, when we find a similar jurisdiction usurped by the officers of inferior persons. Complaint is made in the 18th of Richard II. that men were compelled to answer before _the council of divers lords and ladies_, for their freeholds and other matters cognizable at common law, and a remedy for this abuse is given by petition in chancery, stat. 15 R. II. c. 12. This act is confirmed with a penalty on its contraveners the next year, 16 R. II. c. 2. The private gaols which some lords were permitted by law to possess, and for which there was always a provision in their castles, enabled them to render this oppressive jurisdiction effectual.

[354] Rot. Parl. 17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 H. VI. vol. iv. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. 403; 15 H. VI. p. 501. To one of these (10 H. VI.), "that none should be put to answer for his freehold in parliament, nor before any court or council where such things are not cognizable by the law of the land," the king gave a denial. As it was less usual to refuse promises of this kind than to forget them afterwards, I do not understand the motive of this.

[355] Hale's Jurisdiction of Lords' House, p. 46. Coke, 2 Inst. p. 553. The last author places this a little later. There is a petition of the commons, in the roll of the 4th of Henry IV. p. 511, that, whereas many grantees and feoffees in trust for their grantors and feoffers alienate or charge the tenements granted, _in which case there is no remedy unless one is ordered by parliament_, that the king and lords would provide a remedy. This petition is referred to the king's council to advise of a remedy against the ensuing parliament. It may perhaps be inferred from hence that the writ of subpoena out of chancery had not yet been applied to protect the cestui que use. But it is equally possible that the commons, being disinclined to what they would deem an illegal innovation, were endeavouring to reduce these fiduciary estates within the pale of the common law, as was afterwards done by the statute of uses. [Note X.]

[356] Rot. Parl. vol. i. p. 416.

[357] L. ii. c. 2.

[358] [Note XI.]

[359] This is remarkably expressed in one of the articles agreed in parliament 8 H. VI. for the regulation of the council. "Item, that alle the billes that comprehend matters terminable atte the common lawe shall be remitted ther to be determined; but if so be that the discresion of the counseill fele to grete myght on that o syde, and unmyght on that other, or elles other cause resonable yat shal move him." Rot. Parl. vol. iv. p. 343. Mr. Bruce has well observed of the articles agreed upon in 8 Hen. VI., or rather of "those in 5 Hen. VI., which were nearly the same, that in theory nothing could be more excellent. In turbulent times, it is scarcely necessary to remark, great men were too apt to weigh out justice for themselves, and with no great nicety; a court, therefore, to which the people might fly for relief against powerful oppressors, was most especially needful. Law charges also were considerable; and this, 'the poor man's court, in which he might have right without paying any money' (Sir T. Smith's Commonwealth, book iii. ch. 7), was an institution apparently calculated to be of unquestionable utility. It was the comprehensiveness of the last clause--the 'other cause resonable'--which was its ruin." Archaeologia, vol. xxv. p. 348. The statute 31 Hen. VI. c. 2, which is not printed in Ruffhead's edition, is very important, as giving a legal authority to the council, by writs under the great seal, and by writs of proclamation to the sheriffs, on parties making default, to compel the attendance of any persons complained of for "great riots, extortions, oppressions, and grievous offences," under heavy penalties; in case of a peer, "the loss of his estate, and name of lord, and his place in parliament," and all his lands for the term of his life; and fine at discretion in the case of other persons. A proviso is added that no matter determinable by the law of the realm should be determined in other form than after the course of law in the king's courts. Sir Francis Palgrave (Essay on the King's Council, p. 84) observes that this proviso "would in no way interfere with the effective jurisdiction of the council, inasmuch as it could always be alleged in the bills which were preferred before it that the oppressive and grievous offences of which they complained were not determinable by the ordinary course of the common law" p. 86. But this takes the word "determinable" to mean _in fact_; whereas I apprehend that the proviso must be understood to mean cases legally determinable; the words, I think, will bear no other construction. But as all the offences enumerated were indictable, we must either hold the proviso to be utterly inconsistent with the rest of the statute, or suppose that the words "other form" were intended to prohibit the irregular process usual with the council; secret examination of witnesses, torture, neglect of technical formality in specifying charges, punishments not according to the course of law, and other violations of fair and free trial, which constituted the greatest grievance in the proceedings of the council.

[360] The judgment against Mortimer was reversed at the suit of his son, 28 E. III., because he had not been put on his trial. The peers had adjudged him to death in his absence, upon common notoriety of his guilt. 4 E. III. p. 53. In the same session of 28 E. III. the earl of Arundel's attainder was also reversed, which had passed in 1 E. III., when Mortimer was at the height of his power. These precedents taken together seem to have resulted from no partiality, but a true sense of justice in respect of treasons, animated by the recent statute. Rot. Parl. vol. ii. p. 256.

[361] Rot. Parl. vol. iii. p. 427.

[362] Blackstone's Comment. from Finch, vol. i. c. 7.

[363] Letters are directed to all the sheriffs, 2 E. I., enjoining them to send up a certain number of beeves, sheep, capons, &c., for the king's coronation. Rymer, vol. ii. p. 21. By the statute 21 E. III. c. 12, goods taken by the purveyors were to be paid for on the spot if under twenty shillings' value, or within three months' time if above that value. But it is not to be imagined that this law was or could be observed.

Edward III., impelled by the exigencies of his French war, went still greater lengths, and seized larger quantities of wool, which he sold beyond sea, as well as provisions for the supply of his army. In both cases the proprietors had tallies, or other securities; but their despair of obtaining payment gave rise, in 1338, to an insurrection. There is a singular apologetical letter of Edward to the archbishops on this occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col. 2570.

[364] Rymer, t. vi. p. 417.

[365] Idem, t. xi. p. 852.

[366] Matthew Paris asserts that John granted a separate forest-charter, and supports his position by asserting that of Henry III. at full length. In fact, the clauses relating to the forest were incorporated with the great charter of John. Such an error as this shows the precariousness of historical testimony, even where it seems to be best grounded.

[367] Coke, fourth Inst. p. 294. The forest domain of the king, says the author of the Dialogue on the Exchequer under Henry II., is governed by its own laws, not founded on the common law of the land, but the voluntary enactment of princes: so that whatever is done by that law is reckoned not legal in itself, but legal according to forest law, p. 29, non justum absolute, sed justum secundum legem forestae dicatur. I believe my translation of _justum_ is right; for he is not writing satirically.

[368] 13 R. II. c. 2.

[369] Rot. Parl. vol. iii. p. 530.

[370] The apprehension of this compliant spirit in the ministers of justice led to an excellent act in 2 E. III. c. 8, that the judges shall not omit to do right for any command under the great or privy seal. And the conduct of Richard II., who sought absolute power by corrupting or intimidating them, produced another statute in the eleventh year of his reign (c. 10), providing that neither letters of the king's signet nor of the privy seal should from thenceforth be sent in disturbance of the law. An ordinance of Charles V., king of France, in 1369, directs the parliament of Paris to pay no regard to any letters under his seal suspending the course of legal procedure, but to consider them as surreptitiously obtained. Villaret, t. x. p. 175. This ordinance, which was sedulously observed, tended very much to confirm the independence and integrity of that tribunal.

[371] Cotton's Posthuma, p. 221. Howell's State Trials, vol. iii. p. 1. Hume quotes a grant of the office of constable to the earl of Rivers in 7 E. IV., and infers, unwarrantably enough, that "its authority was in direct contradiction to Magna Charta; and it is evident that no regular liberty could subsist with it. It involved a full dictatorial power, continually subsisting in the state." Hist. of England, c. 22. But by the very words of this patent the jurisdiction given was only over such causes quae in curia constabularii Angliae ab antiquo, viz. tempore dicti Gulielmi conquaestoris, seu aliquo tempore citra, tractari, audiri, examinari, aut decidi consueverunt aut _jure debuerant aut debent_. These are expressed, though not very perspicuously, in the statute 13 R. II. c. 2, that declares the constable's jurisdiction. And the chief criminal matter reserved by law to the court of this officer was treason committed out of the kingdom. In violent and revolutionary seasons, such as the commencement of Edward IV.'s reign, some persons were tried by martial law before the constable. But, in general, the exercise of criminal justice by this tribunal, though one of the abuses of the times, cannot be said to warrant the strong language adopted by Hume.

[372] Fortescue, De Laudibus Legum Angliae, c. 9.

[373] Id. c. 13.

[374] The latter treatise having been written under Edward IV., whom Fortescue, as a restored Lancastrian, would be anxious not to offend, and whom in fact he took some pains to conciliate both in this and other writings, it is evident that the principles of limited monarchy were as fully recognised in his reign whatever particular acts of violence might occur, as they had been under the Lancastrian princes.

[375] The following is one example of these prejudices: In the 9th of Richard II. a tax on wool granted till the ensuing feast of St. John Baptist was to be intermitted from thence to that of St. Peter, and then to recommence; that it might not be claimed as a right. Rot. Parl. vol. iii. p. 214. Mr. Hume has noticed this provision, as "showing an accuracy beyond what was to be expected in those _rude_ times." In this epithet we see the foundation of his mistakes. The age of Richard II. might perhaps be called rude in some respects. But assuredly in prudent and circumspect perception of consequences, and an accurate use of language, there could be no reason why it should be deemed inferior to our own. If Mr. Hume had ever deigned to glance at the legal decisions reported in the Year-books of those times, he would have been surprised, not only at the utmost _accuracy_, but at a subtle refinement in verbal logic, which none of his own metaphysical treatises could surpass.

[376] [Note XII.]

[377] During the famous process against the knights templars in the reign of Edward II., the archbishop of York, having taken the examination of certain templars in his province, felt some doubts which he propounded to several monasteries and divines. Most of these relate to the main subject. But one question, fitter indeed for lawyers than theologians, was, whereas many would not confess without torture, whether he might make use of this means, _licet hoc in regno Angliae nunquam visum fuerit vel auditum_? Et si torquendi sunt, utrum per clericos vel laicos? Et dato, quod _nullus omnino tortor inveniri valeat_ in Anglia, utrum pro tortoribus mittendum sit ad partes transmarinas? Walt. Hemingford, p. 256. Instances, however, of its use are said to have occurred in the 15th century. See a learned 'Reading on the Use of Torture in the Criminal Law of England, by David Jardine, Esq., 1837.'

[378] Rot. Parl. vol. iv. p. 65.

[379] Rot. Parl. vol. iv. p. 202.

[380] This was written in 1811 or 1812; and is among many passages which the progress of time has somewhat falsified.

[381] Philip de Comines takes several opportunities of testifying his esteem for the English government. See particularly 1. iv. c. i. and 1. v. c. xix.

[382] By a frankleyn in this place we are to understand what we call a country squire, like the frankleyn of Chaucer; for the word esquire in Fortescue's time was only used in its limited sense, for the sons of peers and knights, or such as had obtained the title by creation or some other legal means.

The mention of Chaucer leads me to add that the prologue to his Canterbury Tales is of itself a continual testimony to the plenteous and comfortable situation of the middle ranks in England, as well as to that fearless independence and frequent originality of character amongst them, which liberty and competence have conspired to produce.

[383] Brady's Hist. vol. i.; Appendix, p. 148.

[384] Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. iv. p. 41.

[385] If a man was disseised of his land, he might enter upon the disseisor and reinstate himself without course of law. In what case this right of entry was taken away, or _tolled_, as it was expressed, by the death or alienation of the disseisor, is a subject extensive enough to occupy two chapters of Littleton. What pertains to our inquiry is, that by an entry in the old law-books we must understand an actual repossession of the disseisee, not a suit in ejectment, as it is now interpreted, but which is a comparatively modern proceeding. The first remedy, says Britton, of the disseisee is to collect a body of his friends (recoiller amys et force), and without delay to cast out the disseisors, or at least to maintain himself in possession along with them. c. 44. This entry ought indeed, by 5 R. II. stat. i. c. 8, to be made peaceably; and the justices might assemble the posse comitatus to imprison persons entering on lands by violence (15 R. II. c. 2), but these laws imply the facts that made them necessary.

[386] No lord, or other person, by 20 R. II. c. 3, was permitted to sit on the bench with the justices of assise. Trials were sometimes overawed by armed parties, who endeavoured to prevent their adversaries from appearing. Paston Letters, vol. iii. p. 119.

[387] From a passage in the Paston Letters (vol. ii. p. 23) it appears that, far from these acts being regarded, it was considered as a mark of respect to the king, when he came into a county, for the noblemen and gentry to meet him with as many attendants in livery as they could muster. Sir John Paston was to provide twenty men in their livery-gowns, and the duke of Norfolk two hundred. This illustrates the well-known story of Henry VII. and the earl of Oxford, and shows the mean and oppressive conduct of the king in that affair, which Hume has pretended to justify.

In the first of Edward IV. it is said in the roll of parliament (vol. v. p. 407), that, "by yeving of liveries and signets, contrary to the statutes and ordinances made aforetyme maintenaunce of quarrels, extortions, robberies, murders been multiplied and continued within this reame, to the grete disturbaunce and inquietation of the same."

[388] Thus to select one passage out of many: Eodem anno (1332) quidam maligni, fulti quorundam magnatum praesidio, regis adolescentiam spernentes, et regnum perturbare intendentes, in tantam turbam creverunt, nemora et saltus occupaverunt, ita quod toti regno terrori essent. Walsingham, p. 132.

[389] I am aware that in many, probably a great majority of reported cases, this word was technically used, where some unwarranted conveyance, such as a feoffment by the tenant for life, was held to have wrought a disseisin; or where the plaintiff was allowed, for the purpose of a more convenient remedy, to feign himself disseised, which was called disseisin by election. But several proofs might be brought from the parliamentary petitions, and I doubt not, if nearly looked at, from the Year-books, that in other cases there was an actual and violent expulsion. And the definition of disseisin in all the old writers, such as Britton and Littleton, is obviously framed upon its primary meaning of violent dispossession, which the word had probably acquired long before the more peaceable disseisins, if I may use the expression, became the subject of the remedy by assise.

I would speak with deference of Lord Mansfield's elaborate judgment in Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in it appear to me rather too strongly stated; and particularly that the acceptance of the disseisor as tenant by the lord was necessary to render the disseisin complete; a condition which I have not found hinted in any law-book. See Butler's note on Co. Litt. p. 330; where that eminent lawyer expresses similar doubts as to Lord Mansfield's reasoning. It may however be remarked, that constructive or elective disseisins, being of a technical nature, were more likely to produce cases in the Year-books than those accompanied with actual violence, which would commonly turn only on matters of fact, and be determined by a jury.

A remarkable instance of violent disseisin, amounting in effect to a private war, may be found in the Paston Letters occupying most of the fourth volume. One of the Paston family, claiming a right to Caistor Castle, kept possession against the duke of Norfolk, who brought a large force, and laid a regular siege to the place, till it surrendered for want of provisions. Two of the besiegers were killed. It does not appear that any legal measures were taken to prevent or punish this outrage.

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

[391] The manner in which these were obtained, in spite of law, may be noticed among the violent courses of prerogative. By statute 2 E. III. c. 2, confirmed by 10 E. III. c. 2, the king's power of granting pardons was taken away, except in cases of homicide per infortunium. Another act, 14 E. III. c. 15, reciting that the former laws in this respect have not been kept, declares that all pardons contrary to them shall be holden as null. This however was disregarded like the rest; and the commons began tacitly to recede from them, and endeavoured to compromise the question with the crown. By 27 E. III. stat. I, c. 2, without adverting to the existing provisions, which may therefore seem to be repealed by implication, it is enacted that in every charter of pardon, granted at any one's suggestion, the suggestor's name and the grounds of his suggestion shall be expressed, that if the same be found untrue it may be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to find the commons requesting that pardons might not be granted, as if the subject were wholly, unknown to the law; the king protesting in reply that he will save his liberty and regality, as his progenitors had done before, but conceding some regulations, far less remedial than what were provided already by the 27th of Edward II. Pardons make a pretty large head in Brooke's Abridgment, and were undoubtedly granted without scruple by every one of our kings. A pardon obtained in a case of peculiar atrocity is the subject of a specific remonstrance in 23 H. VI. Rot. Parl. vol. v. p. 111.

[392] Rot. Parl. vol. ii. p. 201. A strange policy, for which no rational cause can be alleged, kept Wales and even Cheshire distinct from the rest of the kingdom. Nothing could be more injurious to the adjacent counties. Upon the credit of their immunity from the jurisdiction of the king's courts, the people of Cheshire broke with armed bands into the neighbouring counties, and perpetrated all the crimes in their power. Rot. Parl. vol. iii. p. 81, 201, 440; Stat. 1 H. IV. c. 18. As to the Welsh frontier, it was constantly almost in a state of war, which a very little good sense and benevolence in any one of our shepherds would have easily prevented, by admitting the conquered people to partake in equal privileges with their fellow-subjects. Instead of this, they satisfied themselves with aggravating the mischief by granting legal reprisals upon Welshmen. Stat. 2 H. IV. c. 16. Welshmen were absolutely excluded from bearing offices in Wales. The English living in the English towns of Wales earnestly petition, 23 H. VI. Rot. Parl. vol. v. p. 104, 154, that this exclusion may be kept in force. Complaints of the disorderly state of the Welsh frontier are repeated as late as 12 E. IV. vol. vi. p. 8.

It is curious that, so early as 15 E. II., a writ was addressed to the earl of Arundel, justiciary of Wales, directing him to cause twenty-four discreet persons to be chosen from the north, and as many from the south of that principality, to serve in parliament. Rot. Parl. vol. i. p. 456. And we find a similar writ in the 20th of the same king. Prynne's Register, 4th part, p. 60. Willis says that he has seen a return to one of these precepts, much obliterated, but from which it appears that Conway, Beaumaris, and Carnarvon returned members. Notitia Parliamentaria, vol. i. preface, p. 15.

[393] The statute of Winton was confirmed, and proclaimed afresh by the sheriffs, 7 R. II. c. 6, after an era of great disorder.

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

[395] 1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R. II. c. 5. The institution excited a good deal of ill-will, even before these strong acts were passed. Many petitions of the commons in the 28th E. III., and other years, complain of it. Rot. Parl. vol. ii.

[396] Rot. Parl. vol. iii. p. 65. It may be observed that this act, 2 E. II. c. 16, was not founded on a petition, but on the king's answer; so that the commons were not real parties to it, and accordingly call it an ordinance in their present petition. This naturally increased their animosity in treating it as an infringement of the subject's right.

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

[398] According to Bracton, the bastard of a nief, or female villein, was born in servitude; and where the parents lived on a villein tenement, the children of a nief, even though married to a freeman, were villeins, 1. iv. c. 21; and see Beames's translation of Glanvil, p. 109. But Littleton lays down an opposite doctrine, that a bastard was necessarily free; because, being the child of no father in the contemplation of law, he could not be presumed to inherit servitude from any one; and makes no distinction as to the parent's residence. Sect 188. I merely take notice of this change in the law between the reigns of Henry III. and Edward IV. as an instance of the bias which the judges showed in favour of personal freedom. Another, if we can rely upon it, is more important. In the reign of Henry II. a freeman marrying a nief, and settling on a villein tenement, lost the privileges of freedom during the time of his occupation; legem terrae quasi nativus amittit. Glanvil, 1. v. c. 6. This was consonant to the customs of some other countries, some of which went further, and treated such a person for ever as a villein. But, on the contrary, we find in Britton, a century later, that the nief herself by such a marriage became free during the coverture, c. 31. [Note XIII.]

[399] I must confess that I have some doubts how far this was law at the epoch of Magna Charta. Glanvil and Bracton both speak of the _status villenagii_, as opposed to that of liberty, and seem to consider it as a civil condition, not a merely personal relation. The civil law and the French treatise of Beaumanoir hold the same language. And Sir Robert Cotton maintains without hesitation that villeins are not within the 29th section of Magna Charta, "being excluded by the word liber." Cotton's Posthuma, p. 223. Britton, however, a little after Bracton, says that in an action the villein is answerable to all men, and all men to him. p. 79. And later judges, in favorem libertatis, gave this construction to the villein's situation, which must therefore be considered as the clear law of England in the fourteenth and fifteenth centuries.

[400] Littleton, sect. 189, 190, speaks only of an appeal in the two former cases; but an indictment is a fortiori; and he says, sect. 194, that an indictment, though not an appeal, lies against the lord for maiming his villein.

[401] Gurdon, on Courts Baron, p. 592, supposes the villein in gross to have been the Lazzus or Servus of early times, a domestic serf, and of an inferior species to the cultivator, or villein regardant. Unluckily Bracton and Littleton do not confirm this notion, which would be convenient enough; for in Domesday Book there is a marked distinction between the Servi and Villani. Blackstone expresses himself inaccurately when he says the villein in gross was annexed to the person of the lord, and transferable by deed from one owner to another. By this means indeed a villein regardant would become a villein in gross, but all villeins were alike liable to be sold by their owners. Littleton, sect. 181. Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that villeins in gross were never numerous (Case of Somerset, Howell's State Trials, vol. xx. p. 42): drawing this inference from the few cases relative to them that occur in the Year-books. And certainly the form of a writ de nativitate probanda, and the peculiar evidence it required, which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s argument, are only applicable to the other species. It is a doubtful point whether a freeman could, in contemplation of law, become a villein in gross; though his confession in a court of record, upon a suit already commenced (for this was requisite), would estop him from claiming his liberty; and hence Bracton speaks of this proceeding as a mode by which a freeman might fall into servitude.

[402] [Note XIV.]

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

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

[405] Dugdale's Warwickshire, apud Eden's State of the Poor, vol. i. p. 13. A passage in another local history rather seems to indicate that some kind of delinquency was usually alleged, and some ceremony employed, before the lord entered on the villein's land. In Gissing manor, 39 E. III., the jury present, that W. G., a villein by blood, was a rebel and ungrateful toward his lord, for which all his tenements were seized. His offence was the having said that the lord kept four stolen sheep in his field. Blomefield's Norfolk, vol. i. p. 114.

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

[407] Brooke's Abridgm. Tenant par copie, 1. By the extent-roll of the manor of Brisingham in Norfolk, in 1254, it appears that there were then ninety-four copyholders and six cottagers in villenage; the former performing many, but determinate services of labour for the lord. Blomefield's Norfolk, vol. i. p. 34.

[408] Littl. sect. 77. A copyholder without legal remedy may seem little better than a tenant in mere villenage, except in name. But though, from the relation between the lord and copyholder the latter might not be permitted to sue his superior, yet it does not follow that he might not bring his action against any person acting under the lord's direction, in which the defendant could not set up an illegal authority; just as, although no writ runs against the king, his ministers or officers are not justified in acting under his command contrary to law. I wish this note to be considered as correcting one in my first volume, p. 200, where I have said that a similar law in France rendered the distinction between a serf and a homme de poote little more than theoretical.

[409] See the rules of pleading and evidence in questions of villenage fully stated in Mr. Hargrave's argument in the case of Somerset. Howell's State Trials, vol. xx. p. 38.

[410] 1. v. c. v.

[411] Blomefleld's Norfolk, vol. i. p. 657. I know not how far this privilege was supposed to be impaired by the statute 34 E. III. c. 11; which however might, I should conceive, very well stand along with it.

[412] Stat. 23 E. III.

[413] [Note XV.]

[414] I have been more influenced by natural probabilities than testimony in ascribing this effect to Wicliffe's innovations, because the historians are prejudiced witnesses against him. Several of them depose to the connexion between his opinions and the rebellion of 1382; especially Walsingham, p. 288. This implies no reflection upon Wicliffe, any more than the crimes of the anabaptists in Munster do upon Luther. Every one knows the distich of John Ball, which comprehends the essence of religious democracy:

"When Adam delved and Eve span,
Where was then the gentleman?"

The sermon of this priest, as related by Walsingham, p. 275, derives its argument for equality from the common origin of the species. He is said to have been a disciple of Wicliffe. Turner's Hist. of England, vol. ii. p. 420.

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

[416] 30 E. I., in Fitzherbert. Villenage, apud Lambard's Perambulation of Kent, p. 632. Somner on Gavelkind, p. 72.

[417] Rymer, t. vii. p. 316, &c. The king holds this bitter language to the villeins of Essex, after the death of Tyler and execution of the other leaders had disconcerted them: Rustici quidem fuistis et estis, in bondagio permanebitis, non ut hactenus, sed incomparabiliter viliori, &c. Walsingham, p. 269.

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

[419] 5 R II. c. 7. The words are, riot et rumour _n'autres semblables_; rather a general way of creating a new treason; but panic puts an end to jealousy.

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

[421] Rot. Parl. 15 R. II. vol. iii. p. 294, 296. The statute 7 H. IV. c. 17, enacts that no one shall put his son or daughter apprentice to any trade in a borough, unless he have land or rent to the value of twenty shillings a year, but that any one may put his children to school. The reason assigned is the scarcity of labourers in husbandry, in consequence of people living in _Upland_ apprenticing their children.

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

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

[424] Gurdon on Courts Baron, p. 596; Madox, Formulare Anglicanum, p. 420; Barrington on Ancient Statutes, p. 278. It is said in a modern book that villenage was very rare in Scotland, and even that no instance exists in records of an estate sold with the labourers and their families attached to the soil. Pinkerton's Hist. of Scotland, vol. i. p. 147. But Mr. Chalmers, in his Caledonia, has brought several proofs that this assertion is too general.

[425] Barrington, ubi supra, from Rymer.

[426] There are several later cases reported wherein villenage was pleaded, and one of them as late as the 15th of James I. (Noy, p. 27.) See Hargrave's argument, State Trials, vol. xx. p 41. But these are so briefly stated, that it is difficult in general to understand them. It is obvious, however, that judgment was in no case given in favour of the plea; so that we can infer nothing as to the actual continuance of villenage.

It is remarkable, and may be deemed by some persons a proof of legal pedantry, that Sir E. Coke, while he dilates on the law of villenage, never intimates that it was become antiquated.

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

[428] This prince having been sent to Antwerp, six commissioners were appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107.

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

[430] Matt. Paris, p. 243.

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

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

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

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

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

[436] Ibid. p. 201.

[437] I follow the orthography of the roll, which I hope will not be inconvenient to the reader. Why this orthography, from obsolete and difficult, so frequently becomes almost modern, as will appear in the course of these extracts, I cannot conjecture. The usual irregularity of ancient spelling is hardly sufficient to account for such variations; but if there be any error, it belongs to the superintendents of that publication, and is not mine.

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

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

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

[441] Paston Letters, vol. i. p. 81. The proofs of sound mind given in this letter are not very decisive, but the wits of sovereigns are never weighed in golden scales.

[442] This may seem an improper appellation for what is usually termed a battle, wherein 5000 men are said to have fallen. But I rely here upon my faithful guide, the Paston Letters, p. 100, one of which, written immediately after the engagement, says that only sixscore were killed. Surely this testimony outweighs a thousand ordinary chroniclers. And the nature of the action, which was a sudden attack on the town of St. Albans, without any pitched combat, renders the larger number improbable. Whethamstede, himself abbot of St. Albans at the time, makes the duke of York's army but 3000 fighting men. p. 352. This account of the trifling loss of life in the battle of St. Albans is confirmed by a contemporary letter, published in the Archaeologia (xx. 519). The whole number of the slain was but forty-eight, including, however, several lords.

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

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

[445] Hall, p. 210.

[446] The ill-will of York and the queen began as early as 1449, as we learn from an unequivocal testimony, a letter of that date in the Paston collection, vol. i. p. 26.

[447] Upon this great question the fourth discourse in Sir Michael Foster's Reports ought particularly to be read.

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

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

[450] Id. p. 375. This entry in the roll is highly interesting and important. It ought to be read in preference to any of our historians. Hume, who drew from inferior sources, is not altogether accurate. Yet one remarkable circumstance, told by Hall and other chroniclers, that the duke of York stood by the throne, as if to claim it, though omitted entirely in the roll, is confirmed by Whethamstede, abbot of St. Albans, who was probably then present. (p. 484, edit. Hearne.) This shows that we should only doubt, and not reject, unless upon real grounds of suspicion, the assertions of secondary writers.

[451] The abbey of St. Albans was stripped by the queen and her army after the second battle fought at that place, Feb. 17, 1461; which changed Whethamstede the abbot and historiographer from a violent Lancastrian into a Yorkist. His change of party is quite sudden, and amusing enough. See too the Paston Letters, vol. i. p. 206. Yet the Paston family were originally Lancastrian, and returned to that side in 1470.

[452] There are several instances of violence and oppression apparent on the rolls during this reign, but not proceeding from the crown. One of a remarkable nature (vol. v. p. 173) was brought forward to throw an odium on the duke of Clarence, who had been concerned in it. Several passages indicate the character of the duke of Gloucester.