Chapter XIV: Part III: The English Constitution (12)

The Lords' committee, I must still incline to think, have gone too far when they come to the conclusion that, on the whole view of the evidence collected on the subject, from the 49th of Hen. III. to the 18th of Edw. I., there seems strong ground for presuming that, after the 49th of Hen. III., the constitution of the legislative assembly returned generally to its old course; that the writs issued in the 49th of Henry III., being a novelty, were not afterwards precisely followed, as far as appears, in any instance; and that the writs issued in the 11th of Edw. I., "for assembling two conventions, at York and Northampton, of knights, citizens, burgesses, and representatives of towns, without prelates, earls, and barons, were an extraordinary measure, probably adopted for the occasion, and never afterwards followed; and that the writs issued in the 18th of Edw. I., for electing two or three knights for each shire without corresponding writs for election of citizens or burgesses, and not directly founded on or conformable to the writs issued in the 49th of Henry III., were probably adopted for a particular purpose, possibly to sanction one important law [the statute _Quia Emptores_], and because the smaller tenants in chief of the crown rarely attended the ordinary legislative assemblies when summoned, or attended in such small numbers that a representation of them by knights chosen for the whole shire was deemed advisable, to give sanction to a law materially affecting all the tenants in chief, and those holding under them" (p. 204).

The election of two or three knights for the parliament of 18th Edw. I., which I have overlooked in my text, appears by an entry on the close roll of that year, directed to the sheriff of Northumberland; and it is proved from the same roll that similar writs were directed to all the sheriffs in England. We do not find that the citizens and burgesses were present in this parliament; and it is reasonably conjectured that, the object of summoning it being to procure a legislative consent to the statute _Quia Emptores_, which put an end to the subinfeudation of lands, the towns were thought to have little interest in the measure. It is, however, another early precedent for county representation; and that of 22nd of Edw. I. (see the writ in Report of Committee, p. 209) is more regular. We do not find that the citizens and burgesses were summoned to either parliament.

But, after the 23rd of Edward I., the legislative constitution seems not to have been unquestionably settled, even in the essential point of taxation. The Confirmation of the Charters, in the 25th year of that reign, while it contained a positive declaration that no "aids, tasks, or prises should be levied in future, without assent of the realm," was made in consideration of a grant made by an assembly in which representatives of cities and boroughs do not appear to have been present. Yet, though the words of the charter or statute are prospective, it seems to have long before been reckoned a clear right of the subject, at least by himself, not to be taxed without his consent. A tallage on royal towns and demesnes, nevertheless, was set without authority of parliament four years afterwards. This "seems to show, either that the king's right to tax his demesnes at his pleasure was not intended to be included in the word tallage in that statute [meaning the supposed statute _de tallagio non concedendo_], or that the king acted in contravention of it. But if the king's cities and boroughs were still liable to tallage at the will of the crown, it may not have been deemed inconsistent that they should be required to send representatives for the purpose of granting a general aid to be assessed on the same cities and boroughs, together with the rest of the kingdom, when such general aid was granted, and yet should be liable to be tallaged at the will of the crown when no such general aid was granted" (p. 244).

If in these later years of Edward's reign the king could venture on so strong a measure as the imposition of a tallage without consent of those on whom it was levied, it is less surprising that no representatives of the commons appear to have been summoned to one parliament, or perhaps two, in his twenty-seventh year, when some statutes were enacted. But, as this is merely inferred from the want of any extant writ, which is also the case in some parliaments where, from other sources, we can trace the commons to have been present, little stress should be laid upon it.

In the remarks which I have offered in these notes on the Report of the Lords' Committee, I have generally abstained from repeating any which Mr. Allen brought forward. But the reader should have recourse to his learned criticism in the Edinburgh Review. It will appear that the committee overlooked not a few important records, both in the reign of Edward I. and that of his son.

NOTE VII. Page 35.

Two considerable authorities have, since the first publication of this work, placed themselves, one very confidently, one much less so, on the side of our older lawyers and in favour of the antiquity of borough representation. Mr. Allen, who, in his review of my volumes (Edinb. Rev. xxx. 169), observes, as to this point,--"We are inclined, in the main, to agree with Mr. Hallam," lets us know, two or three years afterwards, that the scale was tending the other way, when, in his review of the Report of the Lords' Committee, who give a decided opinion that cities and boroughs were on no occasion called upon to assist at legislative meetings before the forty-ninth of Henry III., and are much disposed to believe that none were originally summoned to parliament, except cities and boroughs of ancient demesne, or in the hands of the king at the time when they received the summons, he says,--"We are inclined to doubt the first of these propositions, and convinced that the latter is entirely erroneous." (Edinb. Rev. xxxv. 30.) He allows, however, that our kings had no motive to summon their cities and boroughs to the legislature, for the purpose of obtaining money, "this being procured through the justices in eyre, or special commissioners; and therefore, if summoned at all, it is probable that the citizens and burgesses were assembled on particular occasions only, when their assistance or authority was wanted to confirm or establish the measures in contemplation by the government." But as he alleges no proof that this was ever done, and merely descants on the importance of London and other cities both before and after the Conquest, and as such an occasional summons to a great council, for the purpose of advice, would by no means involve the necessity of legislative consent, we can hardly reckon this very acute writer among the positive advocates of a high antiquity for the commons in parliament.

Sir Francis Palgrave has taken much higher ground, and his theory, in part at least, would have been hailed with applause by the parliaments of Charles I. According to this, we are not to look to feudal principles for our great councils of advice and consent. They were the aggregate of representatives from the courts-leet of each shire and each borough, and elected by the juries to present the grievances of the people and to suggest their remedies. The assembly summoned by William the Conqueror appears to him not only, as it did to lord Hale, "a sufficient parliament," but a regular one; "proposing the law and giving the initiation to the bill which required the king's consent." (Ed. Rev. xxxvi. 327.) "We cannot," he proceeds, "discover any essential difference between the powers of these juries and the share of the legislative authority which was enjoyed by the commons at a period when the constitution assumed a more tangible shape and form." This is supported with that copiousness and variety of illustration which distinguish his theories, even when there hangs over them something not quite satisfactory to a rigorous inquirer, and when their absolute originality on a subject so beaten is of itself reasonably suspicious. Thus we come in a few pages to the conclusion--"Certainly there is no theory so improbable, so irreconcilable to general history or to the peculiar spirit of our constitution, as the opinions which are held by those who deny the substantial antiquity of the house of commons. No paradox is so startling as the assumption that the knights and burgesses who stole into the great council between the close of the reign of John and the beginning of the reign of Edward should convert themselves at once into the third estate of the realm, and stand before the king and his peers in possession of powers and privileges which the original branches of the legislature could neither dispute nor withstand" (p. 332). "It must not be forgotten that the researches of all previous writers have been directed wholly in furtherance of the opinions which have been held respecting the feudal origin of parliament. No one has considered it as a common-law court."

I do not know that it is necessary to believe in a properly feudal _origin_ of parliament, or that this hypothesis is generally received. The great council of the Norman kings was, as in common with Sir F. Palgrave and many others I believe, little else than a continuation of the witenagemot, the immemorial organ of the Anglo-Saxon aristocracy in their relation to the king. It might be composed, perhaps, more strictly according to feudal principles; but the royal thanes had always been consenting parties. Of the representation of courts-leet we may require better evidence: aldermen of London, or persons bearing that name, perhaps as landowners rather than citizens (see a former note), may possibly have been occasionally present; but it is remarkable that neither in historians nor records do we find this mentioned; that aldermen, in the municipal sense, are never enumerated among the constituents of a witenagemot or a council, though they must, on the representative theory, have composed a large portion of both. But, waiving this hypothesis, which the author seems not here to insist upon, though he returns to it in the Rise and Progress of the English Commonwealth, why is it "a startling paradox to deny the substantial antiquity of the house of commons"? By this I understand him to mean that representatives from counties and boroughs came regularly, or at least frequently, to the great councils of Saxon and Norman kings. Their indispensable consent in legislation I do not apprehend him to affirm, but rather the reverse:--"The supposition that in any early period the burgesses had a voice in the solemn acts of the legislature is untenable." (Rise and Progress, &c., i. 314.) But they certainly did, at one time or other, obtain this right, "or convert themselves," as he expresses it, "into the third estate of the realm;" so that upon any hypothesis a great constitutional change was wrought in the powers of the commons. The revolutionary character of Montfort's parliament in the 49th of Hen. III. would sufficiently account both for the appearance of representatives from a democracy so favourable to that bold reformer and for the equality of power with which it was probably designed to invest them. But whether in the more peaceable times of Edward I. the citizens or burgesses were recognised as essential parties to every legislative measure, may, as I have shown, be open to much doubt.

I cannot upon the whole overcome the argument from the silence of all historians, from the deficiency of all proof as to any presence of citizens and burgesses, in a representative character as a house of commons, before the 49th year of Henry III.; because after this time historians and chroniclers exactly of the same character as the former, or even less copious and valuable, do not omit to mention it. We are accustomed in the sister kingdoms, so to speak, of the continent, founded on the same Teutonic original, to argue against the existence of representative councils, or other institutions, from the same absence of positive testimony. No one believes that the three estates of France were called together before the time of Philip the Fair. No one strains the representation of cities in the cortes of Castile beyond the date at which we discover its existence by testimony. It is true that unreasonable inferences may be made from what is usually called negative evidence; but how readily and how often are we deceived by a reliance on testimony! In many instances the negative conclusion carries with it a conviction equal to a great mass of affirmative proof. And such I reckon the inference from the language of Roger Hoveden, of Matthew Paris, and so many more who speak of councils and parliaments full of prelates and nobles, without a syllable of the burgesses. Either they were absent, or they were too insignificant to be named; and in that case it is hard to perceive any motive for requiring their attendance.

NOTE VIII. Page 42.

A record, which may be read in Brady's History of England (vol. ii. Append. p. 66) and in Rymer (t. iv. p. 1237), relative to the proceedings on Edward II.'s flight into Wales and subsequent detention, recites that, "the king having left his kingdom without government, and gone away with notorious enemies of the queen, prince, and realm, divers prelates, earls, barons, and knights, then being at Bristol in the presence of the said queen and duke (prince Edward, duke of Cornwall), _by the assent of the whole commonalty of the realm there being_, unanimously elected the said duke to be guardian of the said kingdom; so that the said duke and guardian should rule and govern the said realm in the name and by the authority of the king his father, he being thus absent." But the king being taken and brought back into England, the power thus delegated to the guardian ceased of course; whereupon the bishop of Hereford was sent to press the king to permit that the great seal, which he had with him, the prince having only used his private seal, should be used in all things that required it. Accordingly the king sent the great seal to the queen and prince. The bishop is said to have been thus commissioned to fetch the seal by the prince and queen, and by the said prelates and peers, _with the assent of the said commonalty then being at Hereford_. It is plain that these were mere words of course; for no parliament had been convoked, and no proper representatives could have been either at Bristol or Hereford. However, this is a very curious record, inasmuch as it proves the importance attached to the forms of the constitution at this period.

The Lords' committee dwell much on an enactment in the parliament held at York in 15 Edw. II. (1322), which they conceived to be the first express recognition of the constitutional powers of the lower house. It was there enacted that "for ever thereafter all manner of ordinances or provisions made by the subjects of the king or his heirs, by any power or authority whatsoever, concerning the royal power of the king or his heirs, or against the estate of the crown, should be void and of no avail or force whatsoever; but the matters to be established for the estate of the king and of his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established in parliament by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as had been before accustomed. This proceeding, therefore, declared the legislative authority to reside only in the king, with the assent of the prelates, earls, and barons, and commons assembled in parliament; and that every legislative act not done by that authority should be deemed void and of no effect. By whatever violence this statute may have been obtained, it declared the constitutional law of the realm on this important subject." (p. 282.) The violence, if resistance to the usurpation of a subject is to be called such, was on the part of the king, who had just sent the earl of Lancaster to the scaffold, and the present enactment was levelled at the ordinances which had been forced upon the crown by his faction. The lords ordainers, nevertheless, had been appointed with consent of the commons, as has been mentioned in the text; so that this provision in 15 Edward II. seems rather to limit than to enhance the supreme power of parliament, if it were meant to prohibit any future enactment of the same kind by its sole authority. But the statute is declaratory in its nature; nor can we any more doubt that the legislative authority was reposed in the king, lords, and commons before this era than that it was so ever afterwards. Unsteady as the constitutional usage had been through the reign of Edward I., and willing as both he and his son may have been to prevent its complete establishment, the necessity of parliamentary consent both for levying money and enacting laws must have become an article of the public creed before his death. If it be true that even after this declaratory statute laws were made without the assent or presence of the commons, as the Lords' committee incline to hold (p. 285, 286, 287), it was undeniably an irregular and unconstitutional proceeding; but this can only show that we ought to be very slow in presuming earlier proceedings of the same nature to have been more conformable to the spirit of the existing constitution. The Lords' committee too often reason from the fact to the right, as well as from the words to the fact; both are fallacious, and betray them into some vacillation and perplexity. They do not, however, question, on the whole, but that a new constitution of the legislative assemblies of the realm had been introduced before the 15th year of Edward II., and that "the practice had prevailed so long before as to give it, in the opinion of the parliament then assembled, the force and effect of a custom, which the parliament declared should thereafter be considered as established law." (p. 293.) This appears to me rather an inadequate exposition of the public spirit, of the tendency towards enlarging the basis of the constitution, to which the "practice and custom" owed its origin; but the positive facts are truly stated.

NOTE IX. Page 124.

Writs are addressed in 11th of Edw. II. "comitibus, majoribus baronibus, et praelatis," whence the Lords' committee infer that the style used in John's charter was still preserved (Report, p. 277). And though in those times there might be much irregularity in issuing writs of summons, the term "majores barones" must have had an application to definite persons. Of the irregularity we may judge by the fact that under Edward I. about eighty were generally summoned; under his son never so many as fifty, sometimes less than forty, as may be seen in Dugdale's Summonitiones ad Parliamentum. The committee endeavour to draw an inference from this against a subsisting right of tenure. But if it is meant that the king had an acknowledged prerogative of omitting any baron at his discretion, the higher English nobility must have lost its notorious privileges, sanctioned by long usage, by the analogy of all feudal governments, and by the charter of John, which, though not renewed in terms, nor intended to be retained in favour of the lesser barons, or tenants _in capite_, could not, relatively to the rights of the superior order, have been designedly relinquished.

The committee wish to get rid of tenure as conferring a right to summons; they also strongly doubt whether the summons conferred an hereditary nobility; but they assert that, in the 15th of Edward III., "those who may have been deemed to have been in the reign of John distinguished as _majores barones_ by the honour of a personal writ of summons, or by the extent and influence of their property, from the other tenants in chief of the crown, were now clearly become, with the earls and the newly created dignity of duke, a distinct body of men denominated peers of the land, and having distinct personal rights; while the other tenants in chief, whatsoever their rights may have been in the reign of John, sunk into the general mass." (p. 314.)

The appellation "peers of the land" is said to occur for the first time in 14 Edw. II. (p. 281), and we find them very distinctly in the proceedings against Bereford and others at the beginning of the next reign. They were, of course, entitled to trial by their own order. But whether all laymen summoned by particular writs to parliament were at that time considered as peers, and triable by the rest as such, must be questionable; unless we could assume that the writ of summons already ennobled the blood, which is at least not the opinion of the committee. If, therefore, the writ did not constitute an hereditary peer, nor tenure in chief by barony give a right to sit in parliament, we should have a difficulty in finding any determinate estate of nobility at all, exclusive of earls, who were, at all times and without exception, indisputably noble; an hypothesis manifestly paradoxical, and contradicted by history and law. If it be said that prescription was the only title, this may be so far granted that the _majores barones_ had by prescription, antecedent to any statute or charter, been summoned to parliament: but this prescription would not be broken by the omission, through negligence or policy, of an individual tenant by barony in a few parliaments. The prescription was properly in favour of the class, the _majores barones_ generally, and as to them it was perfect, extending itself in right, if not always in fact, to every one who came within its scope.

In the Third Report of the Lords' Committee, apparently drawn by the same hand as the Second, they "conjecture that after the establishment of the commons' house of parliament as a body by election, separate and distinct from the lords, all idea of a right to a writ of summons to parliament by reason of tenure had ceased, and that the dignity of baron, if not conferred by patent, was considered as derived only from the king's writ of summons." (Third Report, p. 226.) Yet they have not only found many cases of persons summoned by writ several times whose descendants have not been summoned, and hesitate even to approve the decision of the house on the Clifton barony in 1673, when it was determined that the claimant's ancestor, by writ of summons and sitting in parliament, was a peer, but doubt whether "even at this day the doctrine of that case ought to be considered as generally applicable, or may be limited by time and circumstances."[468] (p. 33.)

It seems, with much deference to more learned investigators, rather improbable that, either before or after the regular admission of the knights and burgesses by representation, and consequently the constitution of a distinct lords' house of parliament, a writ of summons could have been lawfully withheld at the king's pleasure from any one holding such lands by barony as rendered him notoriously one of the _majores barones_. Nor will this be much affected by arguments from the inexpediency or supposed anomaly of permitting the right of sitting as a peer of parliament to be transferred by alienation. The Lords' committee dwell at length upon them. And it is true that, in our original feudal constitution, the fiefs of the crown could not be alienated without its consent. But when this was obtained, when a barony had passed by purchase, it would naturally draw with it, as an incident of tenure, the privilege of being summoned to parliament, or, in language more accustomed in those times, the obligation of doing suit and service to the king in his high court. Nor was the alienee, doubtless, to be taxed without his own consent, any more than another tenant _in capite_. What incongruity, therefore, is there in the supposition that, after tenants in fee simple acquired by statute the power of alienation without previous consent of the crown, the new purchaser stood on the same footing in all other respects as before the statute? It is also much to be observed that the claim to a summons might be gained by some methods of purchase, using that word, of course, in the legal sense. Thus the husbands of heiresses of baronies were frequently summoned, and sat as tenants by courtesy after the wife's death; though it must be owned that the committee doubt, in their Third Report (p. 47), whether tenancy by courtesy of a dignity was ever allowed as a right. Thus, too, every estate created in tail male was a diversion of the inheritance by the owner's sole will from its course according to law. Yet in the case of the barony of Abergavenny, even so late as the reign of James I., the heir male, being in seisin of the lands, was called by writ as baron, to the exclusion of the heir general. Surely this was an authentic recognition, not only of baronial tenure as the foundation of a right to sit in parliament, but of its alienability by the tenant.[469]

If it be asked whether the posterity of a baron aliening the lands which gave him a right to be summoned to the king's court would be entitled to the privileges of peerage by nobility of blood, it is true that, according to Collins, whose opinion the committee incline to follow, there are instances of persons in such circumstances being summoned. But this seems not to prove anything to the purpose. The king, no one doubts, from the time of Edward I., used to summon by writ many who had no baronial tenure; and the circumstance of having alienated a barony could not render any one incapable of attending parliament by a different title. It is very hard to determine any question as to times of much irregularity; but it seems that the posterity of one who had parted with his baronial lands would not, in those early times, as a matter of course, remain noble. A right by tenure seems to exclude a right by blood; not necessarily, because two collateral titles may coexist, but in the principle of the constitution. A feudal principle was surely the more ancient; and what could be more alien to this than a baron, a peer, an hereditary counsellor, without a fief? Nobility, that is, gentility of birth, might be testified by a pedigree or a bearing; but a peer was to be in arms for the crown, to grant his own money as well as that of others, to lead his vassals, to advise, to exhort, to restrain the sovereign. The new theory came in by degrees, but in the decay of every feudal idea; it was the substitution of a different pride of aristocracy for that of baronial wealth and power; a pride nourished by heralds, more peaceable, more indolent, more accommodated to the rules of fixed law and vigorous monarchy. It is difficult to trace the progress of this theory, which rested on nobility of blood, but yet so remarkably modified by the original principle of tenure, that the privileges of this nobility were ever confined to the actual possessor, and did not take his kindred out of the class of commoners. This sufficiently demonstrates that the phrase is, so to say, catachrestic, not used in a proper sense; inasmuch as the actual seisin of the peerage as an hereditament, whether by writ or by patent, is as much requisite at present for nobility, as the seisin of an estate by barony was in the reign of Henry III.

Tenure by barony appears to have been recognised by the house of lords in the reign of Henry VI., when the earldom of Arundel was claimed as annexed to the "castle, honour, and lordship aforesaid." The Lords' committee have elaborately disproved the allegations of descent and tenure, on which this claim was allowed. (Second Report, p. 406-426.) But all with which we are concerned is the decision of the crown and of the house in the 11th year of Henry VI., whether it were right or wrong as to the particular facts of the case. And here we find that the king, by the advice and assent of the lords, "considering that Richard Fitzalan, &c., was seised of the castle, honour, and lordship in fee, and by reason of his possession thereof, without any other reason or creation, was earl of Arundel, and held the name, style, and honour of earl of Arundel, and the place and seat of earl of Arundel in parliament and councils of the king," &c., admits him to the same seat and place as his ancestors, earls of Arundel, had held. This was long afterwards confirmed by act of parliament (3 Car. I.), reciting the dignity of earl of Arundel to be real and local, &c., and settling the title on certain persons in tail, with provisions against alienation of the castle and honour. This appears to establish a tenure by barony in Arundel, as a recent determination had done in Abergavenny. Arundel was a very peculiar instance of an earldom by tenure. For we cannot doubt that all earls were peers of parliament by virtue of that rank, though, in fact, all held extensive lands of the crown. But in 1669 a new doctrine, which probably had long been floating among lawyers and in the house of lords, was laid down by the king in council on a claim to the title of Fitzwalter. The nature of a barony by tenure having been discussed, it was found "to have been discontinued for many ages, and not in being" (a proposition not very tenable, if we look at the Abergavenny case, even setting aside that of Arundel as peculiar in its character, and as settled by statute); "and so not fit to be received, or to admit any pretence of right to succession thereto." It is fair to observe that some eminent judges were present on this occasion. The committee justly say that "this decision" (which, after all, was not in the house of lords) "may perhaps be considered as amounting to a solemn opinion that, although in early times the right to a writ of summons to parliament as a baron may have been founded on tenure, a contrary practice had prevailed for ages, and that, therefore, it was not to be taken as then forming part of the constitutional law of the land." (p. 446.) Thus ended barony by tenure. The final decision, for such it has been considered, and recent attempts to revive the ancient doctrine have been defeated, has prevented many tedious investigations of claims to baronial descent, and of alienations in times long past. For it could not be pretended that every fraction of a barony gave a right to summons; and, on the other hand, alienations of parcels, and descents to coparceners, must have been common, and sometimes difficult to disprove. It was held, indeed, by some, that the _caput baroniae_, or principal lordship, contained, as it were, the vital principle of the peerage, and that its owner was the true baron; but this assumption seems uncertain.

It is not very easy to reconcile this peremptory denial of peerage by tenure with the proviso in the recent statute taking away tenure by knight-service, and, inasmuch as it converts all tenure into socage, that also by barony, "that this act shall not infringe or hurt any title of honour, feudal or other, by which any person hath or may have right to sit in the lords' house of parliament, as to his or their title of honour, or sitting in parliament, and the privilege belonging to them as peers." (Stat. 12 Car. II. c. 24, s. 11.)

Surely this clause was designed to preserve the incident to baronial tenure, the privilege of being summoned to parliament, while it destroyed its original root, the tenure itself. The privy council, in their decision on the Fitzwalter claim, did not allude to this statute, probably on account of the above proviso, and seem to argue that, if tenure by barony was no longer in being, the privilege attached to it must have been extinguished also. It is, however, observable that tenure by barony is not taken away by the statute, except by implication. No act indeed can be more loosely drawn than this, which was to change essentially the condition of landed property throughout the kingdom. It literally abolishes all tenure _in capite_; though this is the basis of the crown's right to escheat, and though lands in common socage, which the act with a strange confusion opposes to socage _in capite_, were as much holden of the king or other lord as those by knight-service. Whether it was intended by the silence about tenure by barony to pass it over as obsolete, or this arose from negligence alone, it cannot be doubted that the proviso preserving the right of sitting in parliament by a feudal honour was introduced in order to save that privilege, as well for Arundel and Abergavenny as for any other that might be entitled to it.[470]

NOTE X. Page 142.

The equitable jurisdiction of the Court of Chancery has been lately traced, in some respects, though not for the special purpose mentioned in the text, higher than the reign of Richard II. This great minister of the crown, as he was at least from the time of the Conquest,[471] always till the reign of Edward III. an ecclesiastic of high dignity, and honourably distinguished as the keeper of the king's conscience, was peculiarly intrusted with the duty of redressing the grievances of the subject, both when they sprung from misconduct of the government, through its subordinate officers, and when the injury had been inflicted by powerful oppressors. He seems generally to have been the chief or president of the council, when it exerted that jurisdiction which we have been sketching in the text, and which will be the subject of another note. But he is more prominent when presiding in a separate tribunal as a single judge.

The Court of Chancery is not distinctly to be traced under Henry III. For a passage in Matthew Paris, who says of Radulfus de Nevil--"Erat regis fidelissimus cancellarius, et inconcussa columna veritatis, singulis sua jura, praecipue pauperibus, juste reddens et indilate," may be construed of his judicial conduct in the council. This province naturally, however, led to a separation of the two powers. And in the reign of Edward I. we find the king sending certain of the petitions addressed to him, praying extraordinary remedies, to the chancellor and master of the rolls, or to either separately, by writ under the privy seal, which was the usual mode by which the king delegated the exercise of his prerogative to his council, directing them to give such remedy as should appear to be consonant to honesty (or equity, _honestati_). "There is reason to believe," says Mr. Spence (Equitable Jurisdiction, p. 335), "that this was not a novelty." But I do not know upon what grounds this is believed. Writs, both those of course and others, issued from Chancery in the same reign. (Palgrave's Essay on King's Council, p. 15.) Lord Campbell has given a few specimens of petitions to the council, and answers endorsed upon them, in the reign of Edward I., communicated to him by Mr. Hardy from the records of the Tower. In all these the petitions are referred to the chancellor for justice. The entry, at least as given by lord Campbell, is commonly so short that we cannot always determine whether the petition was on account of wrongs by the crown or others. The following is rather more clear than the rest:--"18 Edw. I. The king's tenants of Aulton complain that Adam Gordon ejected them from their pasture, contrary to the tenor of the king's writ. Resp. Veniant partes coram cancellario, et ostendat ei Adam quare ipsos ejecit, et fiat iis justitia." Another is a petition concerning concealment of dower, for which, perhaps, there was no legal remedy.

In the reign of Edward II. the peculiar jurisdiction of the chancellor was still more distinctly marked. "From petitions and answers lately discovered, it appears that during this reign the jurisdiction of the Court of Chancery was considerably extended, as the 'consuetudo cancellariae' is often familiarly mentioned. We find petitions referred to the chancellor in his court, either separately, or in conjunction with the king's justices, or the king's serjeants; on disputes respecting the wardship of infants, partition, dower, rent-charges, tithes, and goods of felons. The chancellor was in full possession of his jurisdiction over charities, and he superintended the conduct of coroners. Mere wrongs, such as malicious prosecutions and trespasses to personal property, are sometimes the subject of proceedings before him; but I apprehend that those were cases where, from powerful combinations and confederacies, redress could not be obtained in the courts of common law." (Lives of Chanc. vol. i. p. 204.)

Lord Campbell, still with materials furnished by Mr. Hardy, has given not less than thirty-eight entries during the reign of Edward II., where the petition, though sometimes directed to the council, is referred to the chancellor for determination. One only of these, so far as we can judge from their very brief expression, implies anything of an equitable jurisdiction. It is again a case of dower, and the claimant is remitted to the Chancery; "et fiat sibi ibidem justitia, quia non potest juvari per communem legem per breve de dote." This case is in the Rolls of Parliament (i. 340), and had been previously mentioned by Mr. Bruce in a learned memoir on the Court of Star-Chamber. (Archaeologia, xxv. 345.) It is difficult to say whether this fell within the modern rules of equity, but the general principle is evidently the same.

Another petition is from the commonalty of Suffolk to the council, complaining of false indictments and presentments in courts-leet. It is answered--"Si quis sequi voluerit adversus falsos indicatores et procuratores de falsis indictamentis, sequatur in Cancell. et habebit remedium consequens." Several other entries in this list are illustrative of the jurisdiction appertaining, in fact at least, to the council and the chancellor; and being of so early a reign form a valuable accession to those which later records have furnished to Sir Matthew Hale and others.

The Court of Chancery began to decide causes as a court of equity, according to Mr. Hardy, in the reign of Edward III., probably about 22 Edw. III. (Introduction to Close Rolls, p. 28.) Lord Campbell would carry this jurisdiction higher, and the instances already mentioned may be sufficient just to prove that it had begun to exist. It certainly seems no unnatural supposition that the great principle of doing justice, by which the council and the chancellor professed to guide their exercise of judicature, may have led them to grant relief in some of those numerous instances where the common law was defective or its rules too technical and unbending. But, as has been observed, the actual entries, as far as quoted, do not afford many precedents of equity. Mr. Hardy, indeed, suggests (p. 25) that the _Curia Regis_ in the Norman period proceeded on equitable principles; and that this led to the removal of plaints into it from the county-court. This is, perhaps, not what we should naturally presume. The subtle and technical spirit of the Norman lawyers is precisely that which leads, in legal procedure, to definite and unbending rules; while in the lower courts, where Anglo-Saxon thanes had ever judged by the broad rules of justice, according to the circumstances of the case, rather than a strict line of law which did not yet exist, we might expect to find all the uncertainty and inconsistency which belongs to a system of equity, until, as in England, it has acquired by length of time the uniformity of law, but none at least of the technicality so characteristic of our Norman common law, and by which the great object of judicial proceedings was so continually defeated. This, therefore, does not seem to me a probable cause of the removal of suits from the county-court or court-baron to those of Westminster. The true reason, as I have observed in another place, was the partiality of these local tribunals. And the expense of trying a suit before the justices in eyre might not be very much greater than in the county-court.

I conceive, therefore, that the three supreme courts at Westminster proceeded upon those rules of strict law which they had chiefly themselves established; and this from the date of their separation from the original _Curia Regis_. But whether the king's council may have given more extensive remedies than the common law afforded, as early at least as the reign of Henry III., is what we are not competent, apparently, to affirm or deny. We are at present only concerned with the Court of Chancery. And it will be interesting to quote the deliberate opinion of a late distinguished writer, who has taken a different view of the subject from any of his predecessors.

"After much deliberation," says Lord Campbell, "I must express my clear conviction that the chancellor's equitable jurisdiction is as indubitable and as ancient as his common-law jurisdiction, and that it may be traced in a manner equally satisfactory. The silence of Bracton, Glanvil, Fleta, and other early juridical writers, has been strongly relied upon to disprove the equitable jurisdiction of the chancellor; but they as little notice his common-law jurisdiction, most of them writing during the subsistence of the _Aula Regia_; and they all speak of the Chancery, not as a court, but merely as an office for the making and sealing of writs. There are no very early decisions of the chancellors on points of law any more than of equity, to be found in the Year-books or old abridgments.... By 'equitable jurisdiction' must be understood the extraordinary interference of the chancellor, without common-law process or regard to the common-law rules of proceeding, upon the petition of a party grieved who was without adequate remedy in a court of common law; whereupon the opposite party was compelled to appear and to be examined, either personally or upon written interrogatories: and evidence being heard on both sides, without the interposition of a jury, an order was made _secundum aequum et bonum_, which was enforced by imprisonment. Such a jurisdiction had belonged to the Aula Regia, and was long exercised by parliament; and, when parliament was not sitting, by the king's ordinary council. Upon the dissolution of the _Aula Regia_ many petitions, which parliament or the council could not conveniently dispose of, were referred to the chancellor, sometimes with and sometimes without assessors. To avoid the circuity of applying to parliament or the council, the petition was very soon, in many instances, addressed originally to the chancellor himself." (Lives of Chancellors, i. 7.)

In the latter part of Edward III.'s long reign this equitable jurisdiction had become, it is likely, of such frequent exercise, that we may consider the following brief summary by Lord Campbell as probable by analogy and substantially true, if not sustained in all respects by the evidence that has yet been brought to light:--"The jurisdiction of the Court of Chancery was now established in all matters where its own officers were concerned, in petitions of right where an injury was alleged to be done to a subject by the king or his officers in relieving against judgments in courts of law (lord C. gives two instances), and generally in cases of fraud, accident, and trust." (p. 291.)

In the reign of Richard II. the writ of _subpoena_ was invented by John de Waltham, master of the rolls; and to this a great importance seems to have been attached at the time, as we may perceive by the frequent complaints of the commons in parliament, and by the traditionary abhorrence in which the name of the inventor was held. "In reality," says lord Campbell, "he first framed it in its present form when a clerk in Chancery in the latter end of the reign of Edward III.; but the invention consisted in merely adding to the old clause, _Quibusdam certis de causis, the words 'Et hoc sub poena centum librarum nullatenus omittas_;' and I am at a loss to conceive how such importance was attached to it, or how it was supposed to have brought about so complete a revolution in equitable proceedings, for the penalty was never enforced; and if the party failed to appear, his default was treated, according to the practice prevailing in our own time, as a contempt of court, and made the foundation of compulsory process." (p. 296.)

The commons in parliament, whose sensitiveness to public grievances was by no means accompanied by an equal sagacity in devising remedies, had, probably without intention, vastly enhanced the power of the chancellor by a clause in a remedial act passed in the thirty-sixth year of Edward III., that, "If any man that feeleth himself aggrieved contrary to any of the articles above written, or others contained in divers statutes, will come into the Chancery, or any for him, and thereof make his complaint, he shall presently there have remedy by force of the said articles or statutes, without elsewhere pursuing to have remedy." Yet nothing could be more obvious than that the breach of any statute was cognizable before the courts of law. And the mischief of permitting men to be sued vexatiously before the chancellor becoming felt, a statute was enacted, thirty years indeed after this time (17 Ric. II. c. 6), analogous altogether to those in the late reign respecting the jurisdiction of the council, which, reciting that "people be compelled to come before the king's council, or in the Chancery, by writs grounded on untrue suggestions," provides that "the chancellor for the time being, presently after that such suggestions be duly found and proved untrue, shall have power to ordain and award damages, according to his discretion, to him which is so troubled unduly as aforesaid." "This remedy," lord Campbell justly remarks, "which was referred to the discretion of the chancellor himself, whose jurisdiction was to be controlled, proved, as might be expected, wholly ineffectual; but it was used as a parliamentary recognition of his jurisdiction, and a pretence for refusing to establish any other check on it." (p. 247.)

A few years before this statute the commons had petitioned (13 Ric. II., Rot. Parl. iii. 269) that the chancellor might make no order against the common law, and that no one should appear before the chancellor where remedy was given by the common law. "This carries with it an admission," as lord C. observes, "that a power of jurisdiction did reside in the chancellor, so long as he did not determine against the common law, nor interfere where the common law furnished a remedy. The king's answer, 'that it should continue as the usage had been heretofore,' clearly demonstrates that such an authority, restrained within due bounds, was recognised by the constitution of the country." (p. 305.)

The act of 17 Ric. II. seems to have produced a greater regularity in the proceedings of the court, and put an end to such hasty interference, on perhaps verbal suggestions, as had given rise to this remedial provision. From the very year in which the statute was enacted we find bills in Chancery, and the answers to them, regularly filed; the grounds of demanding relief appear, and the chancellor renders himself in every instance responsible for the orders he has issued, by thus showing that they came within his jurisdiction. There are certainly many among the earlier bills in Chancery, which, according to the statute law and the great principle that they were determinable in other courts, could not have been heard; but we are unable to pronounce how far the allegation usually contained or implied, that justice could not be had elsewhere, was founded on the real circumstances. A calendar of these early proceedings (in abstract) is printed in the Introduction to the first volume of the Calendar of Chancery Proceedings in the Reign of Elizabeth, and may also be found in Cooper's Public Records, i. 356.

The struggle, however, in behalf of the common law was not at an end. It is more than probable that the petitions against encroachments of Chancery, which fill the rolls under Henry IV., Henry V., and in the minority of Henry VI., emanated from that numerous and jealous body whose interests as well as prejudices were so deeply affected. Certain it is that the commons, though now acknowledging an equitable jurisdiction, or rather one more extensive than is understood by the word "equitable," in the greatest judicial officer of the crown, did not cease to remonstrate against his transgression of these boundaries. They succeeded so far, in 1436, as to obtain a statute (15 Hen. VI. c. 4) in these words:--"For that divers persons have before this time been greatly vexed and grieved by writs of _subpoena_, purchased for matters determinable by the common law of this land, to the great damage of such persons so vexed, in suspension and impediment of the common law as aforesaid; Our lord the king doth command that the statutes thereof made shall be duly observed, according to the form and effect of the same, and that no writ of _subpoena_ be granted from henceforth until surety be found to satisfy the party so grieved and vexed for his damages and expenses, if so be that the matter cannot be made good which is contained in the bill." It was the intention of the commons, as appears by the preamble of this statute, and more fully by their petition in Rot. Parl. (iv. 101), that the matters contained in the bill on which the _subpoena_ was issued should be not only true in themselves, but such as could not be determined at common law. But the king's answer appears rather equivocal.

The principle seems nevertheless to have been generally established, about the reign of Henry VI., that the Court of Chancery exercises merely a remedial jurisdiction, not indeed controllable by courts of law, unless possibly in such circumstances as cannot be expected, but bound by its general responsibility to preserve the limits which ancient usage and innumerable precedents have imposed. It was at the end of this reign, and not in that of Richard II., according to the writer so often quoted, that the great enhancement of the chancellor's authority, by bringing feoffments to uses within it, opened a new era in the history of our law. And this the judges brought on themselves by their narrow adherence to technical notions. They now began to discover this; and those of Edward IV., as lord Campbell well says, were "very bold men," having repealed the statute _de donis_ by their own authority in Taltarum's case--a stretch of judicial power beyond any that the Court of Chancery had ventured upon. They were also exceedingly jealous of that court; and in one case, reported in the Year-books (22 Edw. IV. 37), advised a party to disobey an injunction from the Court of Chancery, telling him that, if the chancellor committed him to the Fleet, they would discharge the prisoner by _habeas corpus_. (Lord Campbell, p. 394.) The case seems to have been one where, in modern times, no injunction would have been granted, the courts of law being competent to apply a remedy.

NOTE XI. Page 145.

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