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$Title{History Of Europe During The Middle Ages
Part XIX}
$Subtitle{}
$Author{Hallam, Henry}
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$Subject{footnote
parliament
boroughs
ii
knights
county
burgesses
upon
vol
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$Date{}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XIX

     Whoever may have been the original voters for county representatives, the
first statute that regulates their election, so far from limiting the
privilege to tenants in capite, appears to place it upon a very large and
democratical foundation.  For (as I rather conceive, though not without much
hesitation), not only all freeholders, but all persons whatever present at the
county-court, were declared, or rendered, capable of voting for the knight of
their shire.  Such at least seems to be the inference from the expressions of
7 H. IV. c. 15, "all who are there present, as well suitors duly summoned for
that cause as others." ^u And this acquires some degree of confirmation from
the later statute, 8 H. VI. c. 7, which, reciting that "elections of knights
of shires have now of late been made by very great, outrageous, and excessive
number of people dwelling within the same counties, of the which most part was
people of small substance and of no value," confines the elective franchise to
freeholders of lands or tenements to the value of forty shillings.

[Footnote u: 3 Prynne's Register, p. 187.  This hypothesis, though embraced by
Prynne, is, I confess, much opposed to general opinion; and a very respectable
living writer treats such an interpretation of the statute 7 H. IV. as
chimerical.  The words cited in the text, "as others," mean only, according to
him, suitors not duly summoned.  Heywood on Elections, vol. i. p. 20.  But, as
I presume, the summons to freeholders was by general proclamation; so that it
is not easy to perceive what difference there could be between summoned and
unsummoned suitors.  And if the words are supposed to glance at the private
summonses to a few friends, by means of which the sheriffs were accustomed to
procure a clandestine election, one can hardly imagine that such persons would
be styled "duly summoned." It is not unlikely, however, that these large
expressions were inadvertently used, and that they led to that inundation of
voters without property which rendered the subsequent act of Henry VI.
necessary.  That of Henry IV. had itself been occasioned by an opposite evil,
the close election of knights by a few persons in the name of the county.

     Yet the consequence of the statute of Henry IV. was not to let in too
many voters, or to render elections tumultuous, in the largest of English
counties, whatever it might be in others.  Prynne has published some singular
sheriff's indentures for the county of York, all during the interval between
the acts of Henry IV. and Henry VI., which are sealed by a few persons calling
themselves the attorneys of some peers and ladies, who, as far as appears, had
solely returned the knights of that shire.  3 Prynne, p. 152.  What degree of
weight these anomalous returns ought to possess I leave to the reader.]

     The representation of towns in parliament was founded upon two principles
- of consent to public burdens, and of advice in public measures, especially
such as related to trade and shipping.  Upon both these accounts it was
natural for the kings who first summoned them to parliament, little foreseeing
that such half-emancipated burghers would ever clip the loftiest plumes of
their prerogative, to make these assemblies numerous, and summon members from
every town of consideration in the kingdom.  Thus the writ of 23 E. I. directs
the sheriffs to cause deputies to be elected to a general council from every
city, borough, and trading town.  And although the last words are omitted in
subsequent writs, yet their spirit was preserved; many towns having constantly
returned members to parliament by regular summonses from the sheriffs, which
were no chartered boroughs, nor had apparently any other claim than their
populousness or commerce.  These are now called boroughs by prescription. ^v

[Footnote v: The majority of prescriptive boroughs have prescriptive
corporations, which carry the legal, which is not always the moral,
presumption of an original charter.  But "many boroughs and towns in England
have burgesses by prescription, that never were incorporated." Ch. J. Hobart
in Dungannon Case, Hobart's Reports, p. 15.  And Mr. Luders thinks, I know not
how justly, that in the age of Edward I., which is most to our immediate
purpose, "there were not perhaps thirty corporations in the kingdom." Reports
of Elections, vol. i. p. 98.  But I must allow that, in the opinion of many
sound lawyers, the representation of unchartered, or at least unincorporated,
boroughs was rather a real privilege, and founded upon tenure, than one
arising out of their share in public contributions. Ch. J. Holt in Ashby, v.
White, 2, Ld. Raymond, 951.  Heywood on Borough Elections, p. 11.  This
inquiry is very obscure; and perhaps the more so, because the learning
directed towards it has more frequently been that of advocates pleading for
their clients that of unbiassed antiquaries.  If this be kept in view, the
lover of constitutional history will find much information in several of the
reported cases on controverted elections; particularly those of Tewksbury and
Liskeard, in Peckwell's Reports, vol. i.]

     Besides these respectable towns, there were some of a less eminent figure
which had writs directed to them as ancient demesnes of the crown. During
times of arbitrary taxation the crown had set tallages alike upon its
chartered boroughs and upon its tenants in demesne.  When parliamentary
consent became indispensable, the free tenants in ancient demesne, or rather
such of them as inhabited some particular vills, were called to parliament
among the other representatives of the commons.  They are usually specified
distinctly from the other classes of representatives in grants of subsidies
throughout the parliaments of the first and second Edwards, till, about the
beginning of the third's reign, they were confounded with ordinary burgesses.
^w This is the foundation of that particular species of elective franchise
incident to what we denominate burgage tenure; which, however, is not confined
to the ancient demesne of the crown. ^x

[Footnote w: Brady on Boroughs, pp. 75, 80, and 163.  Case of Tewksbury, in
Peckwell's Reports, vol. i. p. 178.]

[Footnote x: Littleton, s. 162, 163.]

     The proper constituents therefore of the citizens and burgesses in
parliament appear to have been - 1. All chartered boroughs, whether they
derived their privileges from the crown, or from a mesne lord, as several in
Cornwall did from Richard King of the Romans; ^y 2. All towns which were the
ancient or the actual demesne of the crown; 3. All considerable places, though
unincorporated, which could afford to defray the expenses of their
representatives, and had a notable interest in the public welfare.  But no
parliament ever perfectly corresponded with this theory.  The writ was
addressed in general terms to the sheriff, requiring him to cause two knights
to be elected out of the body of the county, two citizens from every city, and
two burgesses from every borough.  It rested altogether upon him to determine
what towns should exercise this franchise; and it is really incredible, with
all the carelessness and ignorance of those times, what frauds the sheriffs
ventured to commit in executing this trust. Though parliaments met almost
every year, and there could be no mistake in so notorious a fact, it was the
continual practice of sheriffs to omit boroughs that had been in recent habit
of electing members, and to return upon the writ that there were no more
within their county.  Thus in the 12th of Edward III. the sheriff of
Wiltshire, after returning two citizens for Salisbury, and burgesses for two
boroughs, concludes with these words: - "There are no other cities or boroughs
within my bailiwick." Yet in fact eight other towns had sent members to
preceding parliaments.  So in the 6th of Edward II. the sheriff of Bucks
declared that he had no borough within his county except Wycomb; though
Wendover, Agmondesham, and Marlow had twice made returns since that king's
accession. ^z And from this cause alone it has happened that many towns called
boroughs, and having a charter and constitution as such, have never returned
members to parliament; some of which are now among the most considerable in
England, as Leeds, Birmingham, and Macclesfield. ^a

[Footnote y: Brady, p. 97.]

[Footnote z: Brady on Boroughs, p. 110.  3 Prynne, p. 231.  The latter even
argues that this power of omitting ancient boroughs was legally vested in the
sheriff before the 5th of Richard II.; and though the language of that act
implies the contrary of this position, yet it is more than probable that most
of our parliamentary boroughs by prescription, especially such as were then
unincorporated, are indebted for their privileges to the exercise of the
sheriff's discretion; not founded on partiality, which would rather have led
him to omit them, but on the broad principle that they were sufficiently
opulent and important to send representatives to parliament.]

[Footnote a: Willis, Notitia Parliamentaria, vol. i. preface, p. 35.]

     It has been suggested, indeed, by Brady, ^b that these returns may not
appear so false and collusive if we suppose the sheriff boroughs fit to be
returned, or that the expense of their wages would be too heavy for the place
to support.  And no doubt the latter plea, whether implied or not in the
return, was very frequently an inducement to the sheriffs to spare the smaller
boroughs.  The wages of knights were four shillings a day, levied on all
freeholders, or at least on all holding by knight-service, within the county.
^c Those of burgesses were half that sum; ^d but even this pittance was raised
with reluctance and difficulty from miserable burghers, little solicitous
about political franchises.  Poverty, indeed, seems to have been accepted as a
legal excuse.  In the 6th of E. II. the sheriff of Northumberland returns to
the writ of summons that all his knights are not sufficient to protect the
county; and in the 1st of E. III. that they were too much ravaged by their
enemies to send any members to parliament. ^e The sheriffs of Lancashire,
after several returns that they had no boroughs within their county, though
Wigan, Liverpool, and Preston were such, alleged at length that none ought to
be called upon on account of their poverty.  This return was constantly made,
from 36 E. III. to the reign of Henry VI. ^f

[Footnote b: P. 117.]

[Footnote c: It is a perplexing question whether freeholders in socage were
liable to contribute towards the wages of knights; and authorities might be
produced on both sides.  The more probable supposition is, that they were not
exempted.  See the various petitions relating to the payment of wages in
Prynne's fourth Register.  This is not unconnected with the question as to
their right of suffrage.  See p. 241 of this volume.  Freeholders within
franchises made repeated endeavors to exempt themselves from payment of wages.
Thus in 9 H. IV. it was settled by parliament that, to put an end to the
disputes on this subject between the people of Cambridgeshire and those of the
Isle of Ely, the latter should pay 200l. and be quit in future of all charges
on that account.  Rot. Parl. vol. iv. p. 383.  By this means the inhabitants
of that franchise seem to have purchased the right of suffrage, which they
still enjoy, though not, I suppose, suitors to the county court.  In most
other franchises, and in many cities erected into distinct counties, the same
privilege of voting for knights of the shire is practically exercised; but
whether this has not proceeded as much from the tendency of returning officers
and of parliament to favor the right of election in doubtful cases, as from
the merits of their pretensions, may be a question.]

[Footnote d: The wages of knights and burgesses were first reduced to this
certain sum by the writs De levandis expensis, 16 E. II.  Prynne's fourth
Register, p. 53.  These were issued at the request of those who had served,
after the dissolution of parliament, and included a certain number of days,
according to the distance of the county whence they came, for going and
returning.  It appears by these that thirty-five or forty miles were reckoned
a day's journey; which may correct the exaggerated notions of bad roads and
tardy locomotion that are sometimes entertained.  See Prynne's fourth
Register, and Willis' Notitia Parliamentaria, passim.

     The latest entries of writs for expenses in the close rolls are of 2 H.
V.; but they may be proved to have issued much longer; and Prynne traces them
to the end of Henry VIII.'s reign, p. 495.  Without the formality of this writ
a very few instances of towns remunerating their burgesses for attendance in
parliament are known to have occurred in later times.  Andrew Marvel is
commonly said to have been the last who received this honorable salary.  A
modern book asserts that wages were paid in some Cornish boroughs as late as
the eighteenth century.  Lysons' Cornwall, preface, p. xxxii.; but the passage
quoted in proof of this is not precise enough to support so unlikely an act.]

[Footnote e: 3 Prynne, p. 165.]

[Footnote f: 4 Ibid. p. 317.]

     The elective franchise was deemed by the boroughs no privilege or
blessing, but rather, during the chief part of this period, an intolerable
grievance.  Where they could not persuade the sheriff to omit sending his writ
to them, they set it at defiance by sending no return.  And this seldom failed
to succeed, so that, after one or two refusals to comply, which brought no
punishment upon them, they were left in quiet enjoyment of their
insignificance.  The town of Torrington, in Devonshire, went further, and
obtained a charter of exemption from sending burgesses, grounded upon what the
charter asserts to appear on the rolls of chancery, that it had never been
represented before the 21st of E. III.  This is absolutely false, and is a
proof how little we can rely upon the veracity of records, Torrington having
made not less than twenty-two returns before that time. It is curious that in
spite of this charter the town sent members to the two ensuing parliaments,
and then ceased forever. ^g Richard II. gave the inhabitants of Colchester a
dispensation from returning burgesses for five years, in consideration of the
expenses they had incurred in fortifying the town. ^h But this immunity, from
whatever reason, was not regarded, Colchester having continued to make returns
as before.

[Footnote g: 4 Ibid. p. 320.]

[Footnote h: 3 Ibid. p. 241.]

     The partiality of sheriffs in leaving out boroughs, which were accustomed
in old time to come to the parliament, was repressed, as far as law could
repress it, by a statute of Richard II., which imposed a fine on them for such
neglect, and upon any member of parliament who should absent himself from his
duty. ^i But it is, I think highly probable that a great part of those who
were elected from the boroughs did not trouble themselves with attendance in
parliament.  The sheriff even found it necessary to take sureties of their
execution of so burdensome a duty, whose names it was usual, down to the end
of the fifteenth century, to endorse upon the writ, along with those of the
elected. ^j This expedient is not likely to have been very successful; and the
small number, comparatively speaking, of writs for expenses of members for
boroughs, which have been published by Prynne, while those for the knights of
shires are almost complete, leads to a strong presumption that their
attendance was very defective.  This statute of Richard II. produced no
sensible effect.

[Footnote i: 5 R. II. stat. ii. c. 4.]

[Footnote j: Luders' Reports, vol. ii. p. 15.  Sometimes an elected burgess
absolutely refused to go to parliament, and drove his constituents to a fresh
choice.  3 Prynne, p. 277.]

     By what persons the election of burgesses was usually made is a question
of great obscurity, which is still occasionally debated before committees of
parliament.  It appears to have been the common practice for a very few of the
principal members of the corporation to make the election in the county court,
and their names, as actual electors, are generally returned upon the writ by
the sheriff. ^k But we cannot surely be warranted by this to infer that they
acted in any other capacity than as deputies of the whole body, and indeed it
is frequently expressed that they chose such and such persons by the assent of
the community; ^l by which word, in an ancient corporate borough, it seems
natural to understand the freemen participating in its general franchises,
rather than the ruling body which, in many instances at present, and always
perhaps in the earliest age of corporations, derived its authority by
delegation from the rest.  The consent, however, of the inferior freemen we
may easily believe to have been merely nominal; and, from being nominal, it
would in many places come by degrees not to be required at all; the
corporation, specially so denominated, or municipal government, acquiring by
length of usage an exclusive privilege in election of members of parliament,
as they did in local administration.  This, at least, appears to me a more
probable hypothesis than that of Dr. Brady, who limits the original right of
election in all corporate boroughs to the aldermen or other capital burgesses.
^m

[Footnote k: Ibid. p. 252.]

[Footnote l: Ibid. p. 257, de assensu totius communitatis praedictae elegerunt
R. W.; so in several other instances quoted in the ensuing pages.]

[Footnote m: Brady on Boroughs, p. 132, &c.  Mr. Allen, than whom no one of
equal learning was ever less inclined to depreciate popular rights, inclines
more than we should expect to the school of Brady in this point. "There is
reason to believe that originally the right of election in boroughs was vested
in the governing part of these communities, or in a select portion of the
burgesses; and that, in the progress of the house of commons to power and
importance, the tendency has been in general to render the elections more
popular.  It is certain that for many years burgesses were elected in the
county courts, and apparently by delegates from the boroughs, who were
authorized by their fellow-burgesses to elect representatives for them in
parliament.  In the reigns of James I. and Charles I., when popular principles
were in their greatest vigor, there was a strong disposition in the house of
commons to extend the right of suffrage in boroughs, and in many instances
these efforts were crowned with success." Edin. Rev. xxviii. 145.  But an
election by delegates chosen for that purpose by the burgesses at large is
very different from one by the governing part of the community.  Even in the
latter case, however, this part had generally been chosen, at a greater or
less interval of time, by the entire body.  Sometimes, indeed, corporations
fell into self-election and became close.]

     The members of the house of commons, from this occasional disuse of
ancient boroughs as well as from the creation of new ones, underwent some
fluctuation during the period subject to our review.  Two hundred citizens and
burgesses sat in the parliament held by Edward I. in his twenty-third year,
the earliest epoch of acknowledged representation.  But in the reigns of
Edward III. and his three successors about ninety places, on an average,
returned members, so that we may reckon this part of the commons at one
hundred and eighty. ^n These, if regular in their duties, might appear an
over-balance for the seventy-four knights who sat with them.  But the dignity
of ancient lineage, territorial wealth, and military character, in times when
the feudal spirit was hardly extinct and that of chivalry at its height, made
these burghers vail their heads to the landed aristocracy.  It is pretty
manifest that the knights, though doubtless with some support from the
representatives of towns, sustained the chief brunt of battle against the
crown.  The rule and intention of our old constitution was, that each county,
city, or borough should elect deputies out of its own body, resident among
themselves, and consequently acquainted with their necessities and grievances.
^o It would be very interesting to discover at what time, and by what degrees,
the practice of election swerved from this strictness.  But I have not been
able to trace many steps of the transition.  The number of practising lawyers
who sat in parliament, of which there are several complaints, seems to afford
an inference that it had begun in the reign of Edward III.  Besides several
petitions of the commons that none but knights or reputable squires should be
returned for shires, an ordinance was made in the forty-sixth of his reign
that no lawyer practising in the king's court, nor sheriff during his
shrievalty, be returned knight for a county; because these lawyers put forward
many petitions in the name of the commons which only concerned their clients.
^p This probably was truly alleged, as we may guess from the vast number of
proposals for changing the course of legal process which fill the rolls during
this reign.  It is not to be doubted, however, that many practising lawyers
were men of landed estate in their respective counties.

[Footnote n: Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne,
p. 224, &c.]

[Footnote o: In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci
in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc
comitatu commorantes, duos homines de comitatu Rutland, de discretiorbus et ad
laborandum potentiorbus, &c.  3 Prynne, p. 170.  But this deficiency of actual
knights soon became very common.  In 19 E. II. there were twenty-eight members
returned from shires who were not knights, and but twenty-seven who were such.
The former had at this time only two shillings or three shillings a day for
their wages, while the real knights had four shillings.  4 Prynne, pp. 53, 74.
But in the next reign their wages were put on a level.]

[Footnote p: Rot. Parl. vol. ii. p. 310.]

     An act in the first year of Henry V. directs that none be chosen knights,
citizens or burgesses who are not resident within the place for which they are
returned on the day of the date of the writ. ^q This statute apparently
indicates a point of time when the deviation from the line of law was frequent
enough to attract notice, and yet not so established as to pass for an
unavoidable irregularity.  It proceeded, however, from great and general
causes, which new laws, in this instance very fortunately, are utterly
incompetent to withstand.  There cannot be a more apposite proof of the
inefficacy of human institutions to struggle against the steady course of
events than this unlucky statute of Henry V., which is almost a solitary
instance in the law of England wherein the principle of desuetude has been
avowedly set up against an unrepealed enactment.  I am not aware, at least, of
any other, which not only the house of commons, but the court of king's bench,
has deemed itself at liberty to declare unfit to be observed. ^r Even at the
time when it was enacted, the law had probably, as such, very little effect.
But still the plurality of elections were made according to ancient usage, as
well as statute, out of the constituent body.  The contrary instances were
exceptions to the rule; but exceptions increasing continually, till they
subverted the rule itself.  Prynne has remarked that we chiefly find Cornish
surnames among the representatives of Cornwall, and those of northern families
among the returns from the North.  Nor do the members for shires and towns
seem to have much interchanged; the names of the former belonging to the most
ancient families, while those of the latter have a more plebeian cast. ^s In
the reign of Edward IV. and not before, a very few of the burgesses bear the
addition of esquire in the returns, which became universal in the middle of
the succeeding century. ^t

[Footnote q: Ibid. 1 H. V. c. i.]

[Footnote r: See the case of Dublin university in the first volume of
Peckwell's Reports of contested election.  Note D, p. 53.  The statute itself
was repealed by 14 G. III. c. 58.]

[Footnote s: By 23 H. VI. c. 15, none but gentlemen born, generosi a
nativitate, are capable of sitting in parliament as knights of counties; an
election was set aside 39 H. VI. because the person returned was not of gentle
birth.  Prynne's third Register, p. 161.]

[Footnote t: Willis, Notitia Parliamentaria, Prynne's fourth Register, p.
1184.  A letter in that authentic and interesting accession to our knowledge
of ancient times, the Paston collection, shows that eager canvass was
sometimes made by country gentlemen in Edward IV.'s reign to represent
boroughs.  This letter throws light at the same time on the creation or
revival of boroughs.  The writer tells Sir John Paston, "if ye miss to be
burgess of Malden, and my lord chamberlain will, ye may be in another place;
there be a dozen towns in England that choose no burgess, which ought to do
it; ye may be set in for one of those towns an' ye be friended." This was in
1472. vol. ii. p. 107.]

     Even county elections seem in general, at least in the fourteenth
century, to have been ill-attended and left to the influence of a few powerful
and active persons.  A petitioner against an undue return in the 12th of
Edward II. complains that, whereas he had been chosen knight for Devon by Sir
William Martin, Bishop of Exeter with the consent of the county, yet the
sheriff had returned another. ^u In several indentures of a much later date a
few persons only seem to have been concerned in the election, though the
assent of the community be expressed. ^v These irregularities, which it would
be exceedingly erroneous to convert, with Hume, into lawful customs, resulted
from the abuses of the sheriff's power, which, when parliament sat only for a
few weeks with its hands full of business, were almost sure to escape with
impunity.  They were sometimes also countenanced, or rather instigated, by the
crown, which, having recovered in Edward II.'s reign the prerogative of naming
the sheriffs, surrendered by an act of his father, ^w filled that office with
its creatures, and constantly disregarded the statute forbidding their
continuance beyond a year.  Without searching for every passage that might
illustrate the interference of the crown in elections, I will mention two or
three leading instances.  When Richard II. was meditating to overturn the
famous commission of reform, he sent for some of the sheriffs, and required
them to permit no knight or burgess to be elected to the next parliament
without the approbation of the king and his council.  The sheriffs replied
that the commons would maintain their ancient privilege of electing their own
representatives. ^x The parliament of 1397, which attainted his enemies and
left the constitution at his mercy, was chosen, as we are told, by dint of
intimidation and influence. ^y Thus also that of Henry VI., held at Coventry
in 1460, wherein the Duke of York and his party were attainted, is said to
have been unduly returned by the like means. This is rendered probable by a
petition presented to it by the sheriffs, praying indemnity for all which they
had done in relation thereto contrary to law. ^z An act passed according to
their prayer, and in confirmation of elections.  A few years before, in 1455,
a singular letter under the king's signet is addressed to the sheriffs,
reciting that "we be enfourmed there is busy labour made in sondry wises by
certaine persons for the chesyng of the said knights, . . . . . of which
labour we marvaille greatly, insomuche as it is nothing to the honour of the
laborers, but ayenst their worship; it is also ayenst the lawes of the lande,"
with more to that effect; and enjoining the sheriff to let elections be free
and the peace kept. ^a There was certainly no reason to wonder that a
parliament, which was to shift the virtual sovereignty of the kingdom into the
hands of one whose claims were known to extend much further, should be the
object of tolerably warm contests.  Thus in the Paston letters we find several
proofs of the importance attached to parliamentary elections by the highest
nobility. ^b

[Footnote u: Glanvil's Reports of Elections, edit. 1774 Introduction, p. xii.]

[Footnote v: Prynne's third Register, p. 171.]

[Footnote w: 28 E. I. c. 8; 9 E. II.  It is said that the sheriff was elected
by the people of his county in the Anglo-Saxon period; no instance of this,
however, according to Lord Lyttelton, occurs after the Conquest. Shrievalties
were commonly sold by the Norman kings.  Hist. of Henry II. vol. ii. p. 921.]

[Footnote x: Vita Ricardi II. p. 85.]

[Footnote y: Otterbourne, p. 191.  He says of the knights returned on this
occasion, that they were not elected per communitatem ut mos exigit, sed per
regiam voluntatem.]

[Footnote z: Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.]

[Footnote a: Prynne's second Reg. p. 450.]

[Footnote b: Vol i. pp. 96, 98; vol. ii. pp. 99, 105; vol. ii. p. 243.]

     The house of lords, as we left it in the reign of Henry III., was
entirely composed of such persons holding lands by barony as were summoned by
particular writ of parliament. ^c Tenure and summons were both essential at
this time in order to render any one a lord of parliament - the first by the
ancient constitution of our feudal monarchy from the Conquest, the second by
some regulation or usage of doubtful origin, which was thoroughly established
before the conclusion of Henry III.'s reign.  This produced, of course, a very
marked difference between the greater and the lesser or unparliamentary
barons.  The tenure of the latter, however, still subsisted, and, though too
inconsiderable to be members of the legislature, they paid relief as barons,
they might be challenged on juries, and, as I presume, by parity of reasoning,
were entitled to trial by their peerage. These lower barons, or more commonly
tenants by parcels of baronies, ^d may be dimly traced to the latter years of
Edward III. ^e But many of them were successively summoned to parliament, and
thus recovered the former lustre of their rank, while the rest fell gradually
into the station of commoners, as tenants by simple knight-service.

[Footnote c: Upon this dry and obscure subject of inquiry, the nature and
constitution of the house of lords during this period, I have been much
indebted to the first part of Prynne's Register, and to West's Inquiry into
the Manner of creating Peers; which, though written with a party motive, to
serve the ministry of 1719, in the peerage bill, deserves, for the perspicuity
of the method and style, to be reckoned among the best of our constitutional
dissertations.]

[Footnote d: Baronies were often divided by descent among females into many
parts, each retaining its character as a fractional member of a barony. The
tenants in such case were said to hold of the king by the third, fourth, or
twentieth part of a barony, and did service or paid relief in such
proportion.]

[Footnote e: Madox, Baronia Anglica, p. 42 and p. 58; West's Inquiry, pp. 28,
33.  That a baron could only be tried by his fellow barons was probably a rule
as old as the trial per pais of a commoner.  In 4 E. III. Sir Simon Bereford
having been accused before the lords in parliament of aiding and advising
Mortimer in his treasons, they declared with one voice that he was not their
peer; wherefore they were not bound to judge him as a peer of the land; but
inasmuch as it was notorious that he had been concerned in usurpation of royal
powers and murder of the liege lord (as they styled Edward II.), the lords, as
judges of parliament, by assent of the king in Parliament, awarded and
adjudged him to be hanged.  A like sentence with a like protestation was
passed on Mautravers and Gournay.  There is a very remarkable anomaly in the
case of Lord Berkley, who, though undoubtedly a baron, his ancestors having
been summoned from the earliest date of writs, put himself on his trial in
parliament, by twelve knights of the county of Gloucester. Rot. Parl. vol. ii.
p. 53; Rymer, t. iv. p. 734.]