View of the State of Europe during the Middle Ages Part 15

[292] 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.

[293] Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. 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 a.s.sent of the king in parliament, awarded and adjudged him to be hanged. A like sentence with a like protestation was pa.s.sed 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.

[294] Prynne, p. 142, &c.; West's Inquiry.

[295] Prynne, p. 141.

[296] It is worthy of observation that the spiritual peers summoned to parliament were in general considerably more numerous than the temporal.

Prynne, p. 114. This appears, among other causes, to have saved the church from that sweeping reformation of its wealth, and perhaps of its doctrines, which the commons were thoroughly inclined to make under Richard II. and Henry IV. Thus the reduction of the spiritual lords by the dissolution of monasteries was indispensably required to bring the ecclesiastical order into due subjection to the state.

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

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

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

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

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

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

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

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

[305] It seems to have been admitted by Lord Redesdale, in the case of the barony of L'Isle, that a writ of summons, with sufficient proof of having sat by virtue of it in the house of lords, did in fact create an hereditary peerage from the fifth year of Richard II., though he resisted this with respect to claimants who could only deduce their pedigree from an ancestor summoned by one of the three Edwards.

Nicolas's Case of Barony of L'Isle, p. 200. The theory, therefore, of West, which denies peerage by writ even to those summoned in several later reigns, must be taken with limitation. "I am informed," it is said by Mr. Hart, _arguendo_, "that every person whose name appears in the writ of summons of 5 Ric. II. was again summoned to the following parliament, and their posterity have sat in parliament as peers." p.

233.

[306] Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, 424; vol.

iv. p. 374. Rymer, t. vii. p. 161.

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

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

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

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

[311] The lords' committee do not like, apparently, to admit that bannerets were summoned to the house of lords as a distinct cla.s.s of peers. "It is observable," they say, "that this statute (5 Ric. II. c.

4) speaks of bannerets as well as of dukes, earls, and barons, as persons bound to attend the parliament; but it does not follow that banneret was then considered as a name of dignity distinct from that honourable knighthood under the king's banner in the field of battle, to which precedence of all other knights was attributed." p. 342. But did the committee really believe that all the bannerets of whom we read in the reigns of Richard II. and afterwards had been knighted at Crecy and Poictiers? The name is only found in parliamentary proceedings during comparatively pacific times.

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

[313] These descended from two persons, each named Geoffrey le Scrope, chief justices of K.B. and C.B. at the beginning of Edward III.'s reign.

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

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

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

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

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

[317] vol. iii. p. 209.

[318] Id. p. 263, 264.

[319] vol. iv. p. 17.

[320] Id. p. 401.

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

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

[323] 2 Gale, Scriptores Rer. Anglic, t. ii. p. 355; Hody, p. 345.

Atterbury (Rights of Convocations, p. 295, 315) endeavours to show that the clergy had been represented in parliament from the Conquest as well as before it. Many of the pa.s.sages he quotes are very inconclusive; but possibly there may be some weight in one from Matthew Paris, ad ann.

1247 and two or three writs of the reign of Henry III.

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

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

[326] Hody, p. 391.

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

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

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

17.

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

[330] Hody, p. 392.

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

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

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