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226 REVIEW.-Betham's Dignities, Feudal and Parliamentary. [March,

pened a century later, many large Churches being reduced in size after the restoration of Charles II. in consequence of the ruin they had fallen into by neglect and ill-usage in the civil wars, and during the time of the Commonwealth."-p. 57.

Under the Church of Steyning, Mr. Cartwright, who assigns the erection to the middle of the twelfth century, notices an architectural peculiarity.

“It is remarkable that the northern windows appear deeply recessed on the inside, whilst there is only a single plain course round the outside; but the southern windows are deeply recessed on the outside, with double courses of mouldings, and have only a single one within. This contrivance was calculated to improve the external appearance of the south front, where was the principal approach to the Church, and which of course would be more observed than the north side, and it shows what care and study the builders of that age bestowed on their works."-p. 168.

We shall now notice a curiosity relative to the Church of Itchingfield:

"The Church, which is dedicated to St. Nicholas, is a single nave or aisle, of no greater antiquity than the age of Edward IV. or Henry VI. The tower, which hardly rises above the body of the Church, is a

singular construction. It is composed of

very large blocks of timber, or rather entire trees, fastened together with wooden bolts, and is certainly as ancient as the Church. In a country so productive of timber, it is by no means extraordinary that it should have been so applied, and indeed it is most probable that the ancient Church was of the same material, of which the Church of Greensted in Essex is an example at the present day."—p. 330.

Bramber is a castle mentioned in Domesday Book; and we will take leave to say, that the tower, engraved in p. 172, may be, and probably is, Saxon, whatever may be affirmed to the contrary. There is evidence that the castle was existent in the Anglo-Saxon æra, and none whatever that it was built by 'William de Braose in the time of the Conqueror. We could produce authorities to show that a similar style of towers exists among the Gothic remains of Italy, of date anterior to the Anglo-Saxon architecture.

At Streatham, in Henfield, are the remains of extensive foundations, "the site, as is supposed, of the Castle of Earl Warbald and his Countess Tedburga, to whom it belonged previous to its donation by King Osmund, to the See of Chichester."-p. 267.

We wish that these foundations had been excavated, and that we had a ground plan, for then some light might be thrown upon the style of AngloSaxon Castles, and the peculiarity discovered, if any.

At Shipley are the remains of the Keep of a Castle, which stands upon a knoll within a moat, and may, Mr. Cartwright thinks from its name, the Knepp, have been occupied "by a scion of that royal family in the Saxon times, to which the Castle of Bramber belonged."-p. 292.

(To be continued.)

Dignities, Feudal and Parliamentary, and the Constitutional Legislature of the United Kingdom. The Nature and Functions of the Aula Regis, the Magna Concilia, and the Communia Concilia of England, and the History of the Parliaments of France, England, Scotland, and Ireland, investigated and considered, with a view lo ascertain the origin, progress, and final establishment of Legislative Parliaments, and of the dignity of a Peer or Lord of Parliament. By Sir William Betham, Ulster King of Arms, &c. &c. 2 vols. 8vo.

WHEN a Judge charges a Jury that they shall divest their minds of all prejudice concerning the prisoner at the bar, and decide only according to the evidence, he requires, if they had any previous knowledge of the character or acts of the prisoners, a physical impossibility; and the utmost which he can reasonably expect is, that the evidence may qualify or counteract their prejudices as to the case before them. It is also not uncommon for a man labouring under a prepossession, not to see the wood for trees. Now both these circumstances must have ensued with regard to Selden, a man of enormous learning, but most confused intellect, who has involved the history of our Parliaments in a state of entanglement, and advanced hypotheses which, through his eminent name, have been taken for dala; thus he has made puzzles which ought never to have existed, because the text of history and record were not literally regarded. In truth, the history of Parliaments is in all substantials clear, though there may exist a great defect of information upon some particular points. But there is a wide difference between desiderata and misstatements.

Sir William Betham has produced a book, which for the vast number of

1831.] REVIEW-Betham's Dignities, Feudal and Parliamentary. 227

facts introduced into it, is of the highest value; but we differ in points, and when he says, in p. 41, that

"Blackstone goes too far in his zeal for the ancient constitution, when he asserts that, without the consent of the Witanagemote, no new law could be made, or old one altered,"

we allegate that Blackstone was correct; and in proof thereof, translate a passage from Brompton, which, by the way, also shows how Christianity came to be first incorporated with the Law of the Land. The King says, that after many nations were converted to Christianity, many Synods were held every where; and also that in England, after its conversion, holy Bishops and wise Laymen resolved, from merciful considerations, that the Lords of the soil (terreni domini) might by the licence of them (the Bishops), without sin, exact for the first fault the pecuniary emendation which they (the Bishops) decreed, except the proditio Domini, which admitted of no pardon, because God, under the Jewish law, allowed of none to such delinquents, nor Christ to Judas ; and in many of their Synods they adapted the penalties [multorum forisfactorum emendationes aptaverunt], and out of a general mass of their Synodal books, made a code of chapters.

This statement being premised, Brompton says,

"These, and the ten commandments, and the laws of Moses, and the judgments which God spake to Moses and ordered him to guard, Eifred King of the West Saxons

caused to be collected, and to be reduced to writing, thus saying, I then, Alfred King, have collected together these, and ordered them to be written-many things which our predecessors have observed, and have pleased me, I have reserved; and many things which displeased me, I have rejected by the advice of my wise men, and directed to be observed in a different manner (aliter observari præcepi); and I have been unwilling to put many things of my own in writing, because we doubt (dubitamus) what might of these (inde) please posterity; but what I found in the days of Ina my relative, or Offa King of the Mercians, or of Ethelbert, who was the first baptized King of England, what appeared to me more just, these I have collected, the rest I have dismissed; I, Alfred, King of the West Saxons, have shown these things to all my wise men, and they have said Placet ea custodire.”

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Hence the writ 66 De heretico comburendo."

2 Brompton int. Dec. Scriptor. 819, 820.

Now the concluding sentence of Alfred's proëmium does, in our opinion, show that he was bound to consult the Witenagemote, and have their placets before he could legalize the measures; and Ina says, that he enacted his laws by a similar assent 1

That there might and sometimes did exist an opposition, is evident from Malmesbury, who says, that Athelstan was elected and crowned King at Kingston, although a certain Alfred with his party (factiosis suis), because sedition always finds accomplices, had tried to prevent it.2

It appears from Matthew Paris, in his Lives of the Offas,3 that it was not unusual in the earliest periods to tamper with the nobility and excite opposition; but the general mode of showing it was by coming armed to the assembly, and retiring in a body, rather than by debating and dividing; but in the Parliament of Northampton, there were violent debates between the adherents of the King or Becket respectively. 4

In p. 65 it is said that the commune consilium regni was to be summoned de auxilio assidendo, but for no other purpose. We shall adduce proofs to to the contrary.

A commune consilium regni was always summoned at the election and coronation of a new King; for Henry the First says, in his Charter de libertatibus, "Sciatis me Dei misericordia, et communi consilio Baronum regni Anglice, Regem esse coronatum ;" and to show that this was a full Parliament, the historian adds, "Congregato Londoniis clero Angliæ et populo universo."5 In 1079, a great council was held about the focaria of the priests. In 1164. another was held at Clarendon, concerning liberties. In 1175 a third was. held to attest the reconciliation of Henry the Second and his son ; a fourth in 1185, upon Henry's refusal to take the kingdom of Jerusalem, to which was also convoked the clerus et populus. In 1197 a fifth was held at Westminster to adjust weights and measures.10

Now Eadmer says, as quoted in a paper recently read before the Royal 1 Dec. Scriptor. 761. 2 Script. p. Bed. f. 26 b. 3 M. Par. 961, 962. 5 Id. 46.

7 Id. 84.

9 Id. 119.

4 Id. P. 86. 6 Id. 60.

8 Id. 109.

10 P. 160.

228 REVIEW.-Betham's Dignities, Feudal and Parliamentary. [March,

Society of Literature, written by Mr. Fosbroke, that whenever Parliaments were convoked, out of the three festivals of Christmas, Easter, and Whitsuntide, when the nobility attended court de more, that summonses were issued. Under this knowledge, derived from contemporary authorities, we presume that the real meaning of Magna Charta in the case alluded to, was not that summonses should be limited to the assessments of taxes, but, in order to prevent packing Parliaments under such circumstances, that they should never be omitted. Besides this, there is another difficulty. It is known that subsidies or aids, or tallages, levied in the Anglo-Saxon æra, under the distinct forms of Burgbote, Brigbote, Herefare, Heregeld, Danegeld, &c. but massed in the Norman æra, under the names of subsidies, &c. as early as the Conquest, were general taxes granted by the Parliaments of the time, and levied upon all the King's subjects; but that scutages were distinct imposts, confined to the military tenants. In proof of this we translate literally Rudborne, under the year 1254.12 "A general taxation, both of spirituals and temporals, was made throughout England, the baronies excepted." It is from this distinction, from the clerus et populus 13 being necessary to a money-grauting Parliament, (the real origin, as we presume, of money bills being initiated in the Lower House,) that we inay oppose Matthew Paris's version of Magna Charta to that of the copy used by Sir William Betham. The worthy Knight's quotation stops, as to the cities and burghs, with the confirmation of their liberties, customs, &c. and then says,

"And to hold a Common Council of the realm concerning assessing an aid [a general subsidy], or of assessing a scutage, we will cause to be summoned," &c.-p. 64.

Here subsidies and scutages are both placed in the sole disposition of the Peers; but Matthew Paris, 14 who lived at the very time, connects the subsidy concern with the cities and burghs, as a thing quite distinct from the scutage. He says, "they (the

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burghs) may have all their liberties and customs, and [liberty] to occupy the common council of the realm concerning the assessment of subsidies;" and then he proceeds, “and of assessing scutages, (not or of, as Sir William) we will cause to be summoned the Archbishops," &c. The truth is, that the House of Commons grew out of the necessity of their aid in general taxation, for the words clerus et populus incontestably prove it; the assembly of the Peers and tenants in capite only being styled nobilitas regni, without any mention of the populus. Ducange (v. Parliamentum) also makes the populus the Commons.

15

Sir William further says, that the Parliament had no power of making new laws, or altering old ones, except under privilege of a charter previously granted by the Crown, and that no such charter was ever granted, and therefore the privilege never existed. -p. 65.

That the Royal summons was necessary in the times of which we are speaking (viz. before John), to convoking a Parliament out of the three seasons of Christmas, Easter, and Whitsuntide, is authenticated; and so is the Royal Assent, but that the ratification of that assent by charter implied no more than reduction of such assent to 'black-and-white' (as is the phrase), is proved by the circumstances attached to the election and coronation of Henry the First. He applied to be elected King over the head of his elder brother; to this the Parliament consented, provided he was willing com

munire chartâ suâ the laws of Edward the Confessor. So says Matthew Paris. The truth is, that then, as now, the Parliament could not sit without a convocation by the Crown, and if they could not sit, they could not act ; but this assemblage was founded upon a writ, not a charter. And if the King wished particular subjects to occupy their attention, he signified his pleasure in his opening speech, or by an assimilation to a Royal Message, hereafter noticed, under the example of Athelstan.

A charter was not therefore a previous requisite, referring to a power of discussion; for that the very assemblage of that public body implied such a

15 M. Paris, 609, alluding to a Parliament not assembled for taxation.

1831.] REVIEW.-Betham's Dignities, Feudal and Parliamentary. 229

power in se, and was always exercised, might be easily proved, from the times of Ina and Alfred to the present. The former says, that he made his laws by the advice and council of his Parliament (of course then they consulted together), and Alfred mentions their placets, or, in modern language, contents. How was it possible that the members could give advice or assent, without discussion? and every writ of summons extant uses the phrase, borrowed no doubt from ancient formulæ, ad tractandum nobiscum de communibus negotiis regni; and history gives instances of direct contradiction to the King himself in Parliament, when, as in the case of Becket, the Sovereign declared that his only desire was coram optimatibus honorari.”16

66

The privilege required from the Crown at the opening of a new Parliament was then, as now, only indemnification from any consequences of a free expression of opinion. Nothing so palpably absurd was ever meant as calling people together to consult about a matter, and then preambling it with a charter that they might do the very thing for which they were purposely convoked.

We do not therefore concede (as in p. 66,) that

"Neither record nor history will justify the conclusion, that any legislative assembly properly so called, existed in England, before the death of King John."

Now, were the laws required of the Conqueror, Henry the First, Stephen, and John, or the Great Charter, any other than extortions from the Crown, and ameliorations made by the Parliament and people? and were not the forest laws reprobated as mere monarchical arbitrary edicts? It is very true that then, as now, most of the new laws proposed emanated in point of form from the Crown, because they were made as such what we call Cabinet measures; and in that practice we retain the ancient custom to this day. We are, however, inclined to think that the usual practice was not as now, to initiate new laws or repeals by motions in the House, but to propose them, as wants or grievances, to the Ministers, and to urge compliance when supplies were required. We shall not suggest authorities for a practice so common; but a custom grow

16 Angl. Sacr. i. 9.

ing out of fear implies not the nonexistence, but dereliction of a right. The power of the Sovereign was in all ancient times essentially military; and we know that where the Pope could be invoked as a protector against the King, that measure was often taken; and that such measures did imply counteraction to the Royal prerogative, and initiation of new measures.

But to resume. The Witenagemote had the power of making laws themselves, if the King authorized them so to do; for, says Brompton, "these are the judicia which the wise men made at Exeter by the counsel of King Adelstan, and again at Feversham, and a third time at Thundersfield." 17

This custom is still retained in the royal messages.

It is very true that the Norman kings made most unjust exactions, and violated the laws and customs of the nation (as manifested by the reiterated application for the laws of Edward the Confessor); but political motives rarely have any other than pecuniary or military objects in view, and those of the Conqueror and his immediate descendants, seem to have had in particular the elevation of the Military above the Civil power. But, as with regard to the Turkish Pachas, deputed military power incites abuse and rebellion, civil well-being cannot exist under it. Now he who compares Magna Charta with the enumeration of grievances recapitulated in the Coronation charter of Henry the First, will find that the former relates more to oppressions of the tenants in capite, introduced by the military mode of government, than to the forms and modes of holding Parliaments, or matters which tend to elucidate the ancient history of those assemblies.

In having spoken thus upon the subject, we only say that we find a far greater conformity to ancient history in the modern usages of Parliament, than in the works published upon the subject, all of which, except Mr. Lynch's recent work, seem, in our opinion, to elucidate the matter into obscurity.

The most curious and valuable part of Sir William Betham's first volume is his demonstration of the existence of the feudal system among the AngloSaxons. This system accompanied in

17 Dec. Scriptor. 847.

230

REVIEW.-Lynch's Feudal Dignities, &c.

many countries the first division of the soil into private property, and prevailed in Asia long before its pretended origin in Europe. The histories of India prove its antiquity in all substantials. But to the extract.

"The following evidences establish the fact of Anglo-Saxon feudality. A charter of King Ethelred fixes the land of the Abbey of Abington à regali servitio. A patent of the Conqueror grauts to Alan Earl of Bretagne, omnes terras et villas que nuper fuerunt comitis Edwini in Eboracsire; cum feodis militum et aliis libertatibus ita libere et honorifice sicut idem Edwinus eadem tenuit ante obsessionem Ebor.'

6

"The Leiger Book of St. Alban's, mentioning King Offa's over-running Kent, says, convocatis omnibus sibi officium militare debentibus. King Edgar gave a hundred to Oswald Bishop of Worcester, et redditiones socharium et regis servientium.'

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"Homage and fealty, due by reason of knights' service, were also rendered in the Saxon times; the Leiger Book of Abington says, 'Turkellus did homage to the abbot of Abington for his lands;' he was afterwards slain in the battle of Hastings."

Here is a mistake. Turkill was alive and well temp. Henry I. See MS. Harl. 6060, f. 93, 94. See too the same MSS. no. 2188, fol. 82, 83, and Dugdale's Warwickshire.

"Ingulphus states that Edward the Confessor gave to Griffin and his heirs, the principality of Wales, reserving fealty. In Domesday it is stated that the burgesses of Canterbury did homage for the manor of Northwood in Kent.

"Wardship was also in effect before the conquest. In Ina's Laws, cap. 38, the mother was to be guardian in soccage of her children, and was allowed six shillings per annum in money, a cow in summer, and an ox in winter for their support.

"Likewise was escuage incident to knights' service before the conquest, as mention is made in Domesday de scutagio. By reason also of the tenure by knights' service, the tenant was to serve in the war, as appears recorded in the Book of Worces

ter, in a cause between William Bishop of Worcester, and Walter Abbot of Evesham; the Bishop claimed soc, sac, sepulturam, et gildam regis, et expeditionem in terra et in mare. The Bishop on the hearing, brought witnesses, who proved that the Abbot, in King Edward's time, sent soldiers for those lands, and one was helmsman to the Bishop to carry him beyond the seas. The Abbot therefore submitted ad omnem rem sicut Episcopus clamuerat (sic.)

"That relief was due before the con

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quest, 18 appears by the will of Ebifa, an Earl, cited by Lambard; and in the Confessor's Laws, written by Ingulphus, mention is made of reliefs."-p. 41, seq.

In the paper submitted to the Royal Society of Literature, it is clearly shown from record, that the greatest mistakes have existed concerning the pretended origin of the House of Commons. Ducange was of the opinion contained in that paper, for he says (in literal translation), "Lastly, the English Parliaments seem to be of the same kind as in France are our assemblies of the three orders of the kingdom, which we vulgarly call assemblies of the three estates of the kingdom, who were chiefly assembled for this purpose, that, under impending war, pecuniary aid might be rendered by all the inhabitants of the kingdom. An anonymous Englishman in the book entitled Mirror, c. i. sect. 2, has

"Le Roy Alfred fit assembler les Counties-et ordeina pur usage perpetual, que deus foits per an, ou plus souvent, pur mister in temps de peace, se assembleront a Londres a parlementer sur le guidament del people de Dieu, et coment soy garderont de pecher, viveront en quiet, et receiveront droit per usages et saints judgements, per ceste estate se fieront plusors ordinances, per plusors Roys, jusque a temps le Roy que ore est, que fuit le Roy Edowart." (To be continued.)

A View of the Legal Institutions, Honorary Hereditary Offices, and Feudal Baronies, established in Ireland during the Reign of Henry the Second. Deduced from Court Rolls, Inquisitions, and other original Records. By William Lynch, Esq. F.S.A. &c. &c. Royal 8vo, pp. 360.

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IT appears plain that King Henry the Second introduced into Ireland the feudal system and laws which obtained in England, and the consequence is, that by means of documents still existing in reference to the former Country, we may be enabled to supply certain desiderata, which leave the history of the latter nation in obscurity as to its ancient Parliaments and dignities, because what was law in Ireland was previously law in England. Now the best vehicles of exhibiting these are most assuredly legal records, "instead of the imperfect,

18 In the Laws of Canute it is called Hereget. Ducange, v. relevium.

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