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$Title{History Of Europe During The Middle Ages
Part X}
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$Author{Hallam, Henry}
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$Subject{parliament
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barons
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charter
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part X

     Reign of Edward I. - Confirmatio Chartarum - Constitution of Parliament;
the Prelates; the Temporal Peers - Tenure by Barony; its Changes - Difficulty
of the Subject - Origin of Representation of the Commons - Knights of Shires;
their Existence doubtfully traced through the Reign of Henry III. - Question
whether representation was confined to Tenants in capite discussed - State of
English Towns at the Conquest and Afterwards; their Progress - Representatives
from them Summoned to Parliament by Earl of Leicester - Improbability of an
earlier Origin - Cases of St. Albans and Barnstaple considered - Parliaments
under Edward I. - Separation of Knights and Burgesses from the Peers - Edward
II. - Gradual Progress of the Authority of Parliament traced through the
Reigns of Edward III. and his Successors down to Henry IV. - Privilege of
Parliament; the early Instances of it Noticed - Nature of Borough
Representation - Rights of Election; other Particulars relative to Election -
House of Lords - Baronies by Tenure; by Writ - Nature of the Latter Discussed
- Creation of Peers by Act of Parliament and by Patent - Summons of Clergy to
Parliament - King's Ordinary Council; its Judicial and other Power - Charter
of the Plantagenet Government - Prerogative; its Excesses; erroneous Views
corrected - Testimony of Sir John Fortescue to the Freedom of the Constitution
- Causes of the superior Liberty of England considered - State of Society in
England - Want of Police - Villenage; its gradual Extinction - Latter Years of
Henry VI. - Regencies; Instances of them Enumerated - Pretensions of the House
of York, and War of the Roses - Edward IV. - Conclusion.

     Though the undisputed accession of a prince like Edward I. to the throne
of his father does not seem so convenient a resting-place in history as one of
those revolutions which interrupt the natural chain of events, yet the changes
wrought during his reign make it properly an epoch in the progress of these
inquiries.  And, indeed, as ours is emphatically styled a government by king,
lords, and commons, we cannot, perhaps, in strictness carry it further back
than the admission of the latter into parliament; so that if the constant
representation of the commons is to be referred to the age of Edward I., it
will be nearer the truth to date the English constitution from that than from
any earlier era.

     The various statutes affecting the law of property and administration of
justice which have caused Edward I. to be named, rather hyperbolically, the
English Justinian, bear no immediate relation to our present inquiries. In a
constitutional point of view the principal object is that statute entitled the
Confirmation of the Charters, which was very reluctantly conceded by the king
in the twenty-fifth year of his reign.  I do not know that England has ever
produced any patriots to whose memory she owes more gratitude than Humphrey
Bohun, Earl of Hereford and Essex, and Roger Bigod, Earl of Norfolk.  In the
Great Charter the base spirit and deserted condition of John take off
something from the glory of the triumph, though they enhance the moderation of
those who pressed no further upon an abject tyrant.  But to withstand the
measures of Edward, a prince unequalled by any who had reigned in England
since the Conqueror, for prudence, valor, and success, required a far more
intrepid patriotism.  Their provocations, if less outrageous than those
received from John, were such as evidently manifested a disposition in Edward
to reign without any control; a constant refusal to confirm the charters,
which in that age were hardly deemed to bind the king without his actual
consent; heavy impositions, especially one on the export of wool, and other
unwarrantable demands.  He had acted with such unmeasured violence towards the
clergy, on account of their refusal of further subsidies, that, although the
ill-judged policy of that class kept their interests too distinct from those
of the people, it was natural for all to be alarmed at the precedent of
despotism. ^a These encroachments made resistance justifiable, and the
circumstances of Edward made it prudent.  His ambition, luckily for the
people, had involved him in foreign warfare, from which he could not recede
without disappointment and dishonor.  Thus was wrested from him that famous
statute, inadequately denominated the Confirmation of the Charters, because it
added another pillar to our constitution, not less important than the Great
Charter itself. ^b

[Footnote a: The fullest account we possess of these domestic transactions
from 1294 to 1298 is in Walter Hemingford, one of the historians edited by
Hearne, pp. 52-168.  They have been vilely perverted by Carte, but extremely
well told by Hume, the first writer who had the merit of exposing the
character of Edward I.  See too Knyghton in Twysden's Decem Scriptores, col.
2492.]

[Footnote b: Walsingham, in Camden's Scriptores Rer. Anglicarum, pp. 71-73.]

     It was enacted by the 25 Edward I. that the charter of liberties, and
that of the forest, besides being explicitly confirmed, ^c should be sent to
all sheriffs, justices in eyre, and other magistrates throughout the realm, in
order to their publication before the people; that copies of them should be
kept in cathedral churches, and publicly read twice in the year, accompanied
by a solemn sentence of excommunication against all who should infringe them;
that any judgment given contrary to these charters should be invalid, and
holden for naught.  This authentic promulgation, those awful sanctions of the
Great Charter, would alone render the statute of which we are speaking
illustrious.  But it went a great deal further.  Hitherto the king's
prerogative of levying money by name of tallage or prize from his towns and
tenants in demesne had passed unquestioned.  Some impositions, that especially
on the export of wool, affected all his subjects.  It was now the moment to
enfranchise the people, and give that security to private property which Magna
Charta had given to personal liberty.  By the 5th and 6th sections of this
statute "the aids, tasks, and prizes," before taken are renounced as
precedents; and the king "grants for him and his heirs, as well to
archbishops, bishops, abbots, priors, and other folk of holy church, as also
to earls, barons, and to all commonalty of the land, that for no business from
henceforth we shall take such manner of aids, tasks, nor prizes, but by the
common assent of the realm, and for the common profit thereof, saving the
ancient aids and prizes due and accustomed." The toll upon wool, so far as
levied by the king's mere prerogative, is expressly released by the seventh
section. ^d

[Footnote c: Edward would not confirm the charters, notwithstanding his
promise, without the words, salvo jure coronae nostrae; on which the two earls
retired from court.  When the confirmation was read to the people at St.
Paul's, says Hemingford, they blessed the king on seeing the charters with the
great seal affixed; but when they heard the captious conclusion, they cursed
him instead.  At the next meeting of parliament, the king agreed to omit these
insidious words, p. 168.]

[Footnote d: The supposed statute, De Tallagio non concedendo, is considered
by Blackstone (Introduction to Charters, p. 67) as merely an abstract of the
Confirmatio Chartarum.  By that entitled Articuli super Chartas, 28 Edw. I., a
court was erected in every county, of three knights or others, to be elected
by the commons of the shire, whose sole province was to determine offences
against the two charters, with the power of punishing by fine and
imprisonment; but not to extend to any case wherein a remedy by writ was
already provided.  The Confirmatio Chartarum is properly denominated a
statute, and always printed as such; but in form, like Magna Charta, it is a
charter, or letters patent, proceeding from the crown, without even reciting
the consent of the realm.  And its "teste" is at Ghent, 2 Nov. 1297; Edward
having engaged, conjointly with the Count of Flanders, in a war with Philip
the Fair.  But a parliament had been held at London, when the barons insisted
on these concessions.  The circumstances are not wholly unlike those of Magna
Charta.

     The Lord's Committee do not seem to reject the statute "de tallagio non
concedendo" altogether, but say that, "if the manuscript containing it (in
Corpus Christi College, Cambridge) is a true copy of a statute of the 25th,
and not of a statute of the 34th of Edward I." P. 230.  It seems to me on
comparing the two, that the supposed statute de tallagio is but an imperfect
transcript of the king's charter at Ghent.  But at least, as one exists in an
authentic form, and the other is only found in an unauthorized copy, there can
be no question which ought to be quoted.]

     We come now to a part of our subject exceedingly important, but more
intricate and controverted than any other, the constitution of parliament. I
have taken no notice of this in the last section, in order to present
uninterruptedly to the reader the gradual progress of our legislature down to
its complete establishment under the Edwards.  No excuse need be made for the
dry and critical disquisition of the following pages; but among such obscure
inquiries I cannot feel myself as secure from error as I certainly do from
partiality.

     One constituent branch of the great councils held by William the
Conqueror and all his successors was composed of the bishops and the heads of
religious houses holding their temporalities immediately of the crown. It has
been frequently maintained that these spiritual lords sat in parliament only
by virtue of their baronial tenure.  And certainly they did all hold baronies,
which, according to the analogy of lay peerages, were sufficient to give them
such a share in the legislature.  Nevertheless, I think that this is rather
too contracted a view of the rights of the English hierarchy, and, indeed, by
implication, of the peerage.  For a great council of advice and assent in
matters of legislation or national importance was essential to all the
northern governments.  And all of them, except, perhaps, the Lombards, invited
the superior ecclesiastics to their councils; not upon any feudal notions,
which at that time had hardly begun to prevail, but chiefly as representatives
of the church and of religion itself; next, as more learned and enlightened
counsellors than the lay nobility; and in some degree, no doubt, as rich
proprietors of land.  It will be remembered also that ecclesiastical and
temporal affairs were originally decided in the same assemblies, both upon the
continent and in England.  The Norman Conquest, which destroyed the Ango-Saxon
nobility, and substituted a new race in their stead, could not affect the
immorality of church possessions.  The bishops of William's age were entitled
to sit in his councils by the general custom of Europe, and by the common law
of England, which the Conquest did not overturn. ^e Some smaller arguments
might be urged against the supposition that their legislative rights are
merely baronial; such as that the guardian of the spiritualities was commonly
summoned to parliament during the vacancy of a bishopric, and that the five
sees created by Henry VIII. have no baronies annexed to them; ^f but the
former reasoning appears less technical and confined. ^g

[Footnote e: Hody (Treatise on Convocations, p. 126) states the matter thus:
in the Saxon times all bishops and abbots sat and voted in the state councils,
or parliament, as such, and not on account of their tenures. After the
Conquest the abbots sat there not as such, but by virtue of their tenures, as
barons; and the bishops sat in a double capacity, as bishops and as barons.]

[Footnote f: Hody, p. 128.]

[Footnote g: [Note XVI.]]

     Next to these spiritual lords are the earls and barons, or lay peerage of
England.  The former dignity was, perhaps, not so merely official as in the
Saxon times, although the earl was entitled to the third penny of all
emoluments arising from the administration of justice in the county courts,
and might, perhaps, command the militia of his county, when it was called
forth. ^h Every earl was also a baron, and held an honor or barony of the
crown, for which he paid a higher relief than an ordinary baron, probably on
account of the profits of his earldom.  I will not pretend to say whether
titular earldoms, absolutely distinct from the lieutenancy of a county, were
as ancient as the Conquest, which Madox seems to think, or were considered as
irregular so late as Henry II., according to Lord Lyttelton.  In Dugdale's
Baronage I find none of this description in the first Norman reigns; for even
that of Clare was connected with the local earldom of Hertford.

[Footnote h: Madox, Baronia Anglica, p. 138.  Dialogus de Scaccario, l. i. c.
17.  Lyttelton's Henry II. vol. ii. p. 217.  The last of these writers
supposes, contrary to Selden, that the earls continued to be governors of
their counties under Henry II.  Stephen created a few titular earls, with
grants of crown lands to support them; but his successor resumed the grants,
and deprived them of their earldoms.

     In Rymer's Foedera, vol. i. p. 3, we find a grant of Matilda, creating
Milo of Gloucester Earl of Hereford, with the moat and castle of that city in
fee to him and his heirs, the third penny of the rent of the city, and of the
pleas in the county, three manors and a forest, and the service of three
tenants in chief, with all their fiefs; to be held with all privileges and
liberties as fully as ever any earl in England had possessed them.]

     It is universally agreed that the only baronies known for two centuries
after the Conquest were incident to the tenure of land held immediately from
the crown.  There are, however, material difficulties in the way of rightly
understanding their nature which ought not to be passed over, because the
consideration of baronial tenures will best develop the formation of our
parliamentary system.  Two of our most eminent legal antiquaries, Selden and
Madox, have entertained different opinions as to the characteristics and
attributes of this tenure.

     According to the first, every tenant in chief by knight-service was an
honorary or parliamentary baron by reason of his tenure.  All these were
summoned to the king's councils, and were peers of his court.  Their baronies,
or honors, as they were frequently called, consisted of a number of knight's
fees; that is, of estates, from each of which the feudal service of a knight
was due; not fixed to thirteen fees and a third, as has been erroneously
conceived, but varying according to the extent of a barony and the reservation
of service at the time of its creation.  Were they more or fewer, however,
their owner was equally a baron, and summoned to serve the king in parliament
with his advice and judgment, as appears by many records and passages in
history.

     But about the latter end of John's reign, some only of the most eminent
tenants in chief were summoned by particular writs; the rest by one general
summons through the sheriffs of their several counties.  This is declared in
the Great Charter of that prince, wherein he promises that, whenever an aid or
scutage shall be required, faciemus summoneri archiepiscopos, episcopos,
abbates, comites et majores barones regni sigillatim per literas nostras.  Et
praeterea faciemus summoneri in generali per vicecomites et ballivos nostros
omnes alios que in capite tenent de nobis.  Thus the barons are distinguished
from other tenants in chief, as if the former name were only applicable to a
particular number of the king's immediate vassals.  But it is reasonable to
think that, before this charter was made, it had been settled by the law of
some other parliament, how these greater barons should be distinguished from
the lesser tenants in chief; else what certainty could there be in an
expression so general and indefinite?  And this is likely to have proceeded
from the pride with which the ancient and wealthy barons of the realm would
regard those newly created by grants of escheated honors, or those decayed in
estate, who yet were by their tenures on an equality with themselves. They
procured therefore two innovations in their condition: first, that these
inferior barons should be summoned generally by the sheriff, instead of
receiving their particular writs, which made an honorary distinction; and
next, that they should pay relief, not, as for an entire barony, one hundred
marks, but at the rate of five pounds for each knight's fee which they held of
the crown.  This changed their tenure to one by mere knight-service, and
their denomination to tenants in chief.  It was not difficult, afterwards, for
the greater barons to exclude any from coming to parliament as such without
particular writs directed to them, for which purpose some law was probably
enacted in the reign of Henry III.  If indeed we could place reliance on a
nameless author whom Camden has quoted, this limitation of the peerage to such
as were expressly summoned depended upon a statute made soon after the battle
of Evesham.  But no one has ever been able to discover Camden's authority, and
the change was, probably, of a much earlier date. ^i

[Footnote i: Selden's Works, vol. iii. pp. 713-743.]

     Such is the theory of Selden, which, if it rested less upon conjectural
alterations in the law, would undoubtedly solve some material difficulties
that occur in the opposite view of the subject.  According to Madox, tenure by
knight-service in chief was always distinct from that by barony.  It is not
easy, however, to point out the characteristic differences of the two; nor has
that eminent antiquary, in his large work, the Baronia Anglica, laid down any
definition, or attempted to explain the real nature of a barony.  The
distinction could not consist in the number of knight's fees; for the barony
of Hwayton consisted of only three; while John de Baliol held thirty fees by
mere knight-service. ^j Nor does it seem to have consisted in the privilege or
service of attending parliament, since all tenants in chief were usually
summoned.  But whatever may have been the line between these modes of tenure,
there seems complete proof of their separation long before the reign of John.
Tenants in chief are enumerated distinctly from earls and barons in the
charter of Henry I. Knights, as well as barons, are named as present in the
parliament of Northampton in 1165, in that held at the same town in 1176, and
upon other occasions. ^k Several persons appear in the Liber Niger Scaccarii,
a roll of military tenants made in the age of Henry II., who held single
knight's fees of the crown.  It is, however, highly probable, that, in a lax
sense of the word, these knights may sometimes have been termed barons.  The
author of the Dialogus de Scaccario speaks of those holding greater or lesser
baronies, including, as appears by the context, all tenants in chief. ^l The
former of these seem to be the majores barones of King John's Charter.  And
the secundae dignitatis barones, said by a contemporary historian to have been
present in the parliament of Northampton, were in all probability no other
than the knightly tenants of the crown. ^m For the word baro, originally
meaning only a man, was of very large significance, and is not unfrequently
applied to common freeholders, as in the phrase of court-baron.  It was used
too for the magistrates or chief men of cities, as it is still for the judges
of the exchequer, and the representatives of the Cinque Ports. ^n

[Footnote j: Lyttelton's Henry II. vol. ii. p. 212.]

[Footnote k: Hody on Convocations, pp, 222, 234.]

[Footnote l: Lib. ii. c. 9.]

[Footnote m: Hody and Lord Lyttelton maintain these "barons of the second
rank" to have been the sub-vassals of the crown; tenants of the great barons
to whom the name was sometimes improperly applied.  This was very consistent
with their opinion, that the commons were a part of parliament at that time.
But Hume, assuming at once the truth of their interpretation in this instance,
and the falsehood of their system, treats it as a deviation from the
established rule, and a proof of the unsettled state of the constitution.]

[Footnote n: [Note XVII.]]

     The passage however before cited from the Great Charter of John affords
one spot of firm footing in the course of our progress.  Then, at least, it is
evident that all tenants in chief were entitled to their summons; the greater
barons by particular writs, the rest through one directed to their sheriff.
The epoch when all, who, though tenants in chief, had not been actually
summoned, were deprived of their right of attendance in parliament, is again
involved in uncertainty and conjecture. The unknown writer quoted by Camden
seems not sufficient authority to establish his assertion, that they were
excluded by a statute made after the battle of Evesham.  The principle was
most likely acknowledged at an earlier time.  Simon de Montfort summoned only
twenty-three temporal peers to his famous parliament.  In the year 1255 the
barons complained that many of their number had not received their writs
according to the tenor of the charter, and refused to grant an aid to the king
till they were issued. ^o But it would have been easy to disappoint this mode
of packing a parliament, if an unsummoned baron could have sat by mere right
of his tenure.  The opinion of Selden, that a law of exclusion was enacted
towards the beginning of Henry's reign, is not liable to so much objection.
But perhaps it is unnecessary to frame an hypothesis of this nature.  Writs of
summons seem to have been older than the time of John; ^p and when this had
become the customary and regular preliminary of a baron's coming to
parliament, it was a natural transition to look upon it as an indispensable
condition; in times when the prerogative was high, the law unsettled, and the
service in parliament deemed by many still more burdensome than honorable.
Some omissions in summoning the king's tenants to former parliaments may
perhaps have produced the above-mentioned provision of the Great Charter,
which had a relation to the imposition of taxes wherein it was deemed
essential to obtain a more universal consent than was required in councils
held for state, or even for advice. ^q

[Footnote o: M. Paris, p. 785.  The barons even tell the king that this was
contrary to his charter, in which nevertheless the clause to that effect,
contained in his father's charter, had been omitted.]

[Footnote p: Henry II., in 1175, forbade any of those who had been concerned
in the late rebellion to come to his court without a particular summons.
Carte, vol. ii. p. 249.]

[Footnote q: Upon the subject of tenure by barony, besides the writers already
quoted, see West's Inquiry into the Method of creating Peers, and Carte's
History of England, vol. ii. p. 247.]

     It is not easy to determine how long the inferior tenants in chief
continued to sit personally in parliament.  In the charters of Henry III., the
clause which we have been considering is omitted: and I think there is no
express proof remaining that the sheriff was ever directed to summon the
king's military tenants within his county, in the manner which the charter of
John required.  It appears, however, that they were in fact members of
parliament on many occasions during Henry's reign, which shows that they were
summoned either by particular writs or through the sheriff; and the latter is
the more plausible conjecture.  There is indeed great obscurity as to the
constitution of parliament in this reign; and the passages which I am about to
produce may lead some to conceive that the freeholders were represented even
from its beginning.  I rather incline to a different opinion.

     In the Magna Charta of 1 Henry III. it is said: Pro hac donatione et
concessione . . . . . archiepiscopi, episcopi, comites, barones, milites, et
libere tenentes, et omnes de regno nostro, dederunt nobis quintam decimam
partem omnium bonorum suorum mobilium. ^r So in a record of 19 Henry III.:
Comites, et barones, et omnes alii de toto regno nostro Angliae, spontanea
voluntate sua concesserunt nobis efficax auxilium. ^s The largeness of these
words is, however, controlled by a subsequent passage, which declares the tax
to be imposed ad mandatum omnium comitum et baronum et omnium aliorum qui de
nobis tenent in capite.  And it seems to have been a general practice to
assume the common consent of all ranks to that which had actually been agreed
by the higher.  In a similar writ, 21 Henry III., the ranks of men are
enumerated specifically; archiepiscopi, episcopi, abbates, priores, et clerici
terras habentes quae ad ecclesias suas non pertinent, comites, barones,
milites, et liberi homines, pro se et suis villanis, nobis concesserunt in
auxilium tricesimam partem omnium mobilium. ^t In the close roll of the same
year, we have a writ directed to the archbishops, bishops, abbots, priors,
earls, barons, knights, and freeholders (liberi homines) of Ireland, in which
an aid is desired of them, and it is urged that one had been granted by his
fideles Angliae. ^u

[Footnote r: Hody on Convocations, p. 293.]

[Footnote s: Brady, Introduction to History of England.  Appendix, p. 43.]

[Footnote t: Brady's History of England, vol. i.  Appendix, p. 182.]

[Footnote u: Brady's Introduction, p. 94.]

     But this attendance in parliament of inferior tenants in chief, some of
them too poor to have received knighthood, grew insupportably vexatious to
themselves, and was not well liked by the king.  He knew them to be dependent
upon the barons, and dreaded the confluence of a multitude, who assumed the
privilege of coming in arms to the appointed place.  So inconvenient and
mischievous a scheme could not long subsist among an advancing people, and
fortunately the true remedy was discovered with little difficulty.

     The principle of representation, in its widest sense, can hardly be
unknown to any government not purely democratical.  In almost every country
the sense of the whole is understood to be spoken by a part, and the decisions
of a part are binding upon the whole.  Among our ancestors the lord stood in
the place of his vassals, and, still more unquestionably, the abbot in that of
his monks.  The system indeed of ecclesiastical councils, considered as organs
of the church, rested upon the principle of a virtual or an express
representation, and had a tendency to render its application to national
assemblies more familiar.

     The first instance of actual representation which occurs in our history
is only four years after the Conquest; when William, if we may rely on
Hoveden, caused twelve persons skilled in the customs of England to be chosen
from each county, who were sworn to inform him rightly of their laws; and
these, so ascertained, were ratified by the consent of the great council.
This, Sir Matthew Hale asserts to be "as sufficient and effectual a parliament
as ever was held in England." ^v But there is no appearance that these twelve
deputies of each county were invested with any higher authority than that of
declaring their ancient usages.  No stress can be laid at least on this
insulated and anomalous assembly, the existence of which is only learned from
a historian of a century later. ^w

[Footnote v: Hist. of Common Law, vol. i. p. 202.]

[Footnote w: This assembly is mentioned in the preamble, and, afterwards, of
the spurious laws of Edward the Confessor; and I have been accused of passing
it over too slightly.  The fact certainly does not rest on the authority of
Hoveden, who transcribes these laws verbatim; and they are in substance an
ancient document.  There seems to me somewhat rather suspicious in this
assembly of delegates; it looks like a pious fraud to maintain the old Saxon
jurisprudence, which was giving way.  But even if we admit the fact as here
told, I still adhere to the assertion that there is no appearance that these
twelve deputies of each county were invested with any higher authority than
that of declaring their ancient usages.  Any supposition of a real legislative
parliament would be inconsistent with all that we know of the state of England
under the Conqueror.  And what an anomaly, upon every constitutional
principle, Anglo-Saxon or Norman, would be a parliament of twelve from each
county!  Nor is it perfectly manifest that they were chosen by the people; the
words summoneri fecit are first used; and afterwards, electis de (not in)
singulis totius patriae comitatibus.  This might be construed of the king's
selection; but perhaps the common interpretation is rather the better.