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226 Review.-Betham's Dignities, Feudal and Parliamentary. [March, pened a century later, many large Churches We wish that these foundations had being reduced in size after the restoration been excavated, and that we had a of Charles II. in consequence of the ruin ground plan, for then some light might they had fallen into by neglect and ill-usage be thrown upon the style of Angloin the civil wars, and during the time of the

Saxon Castles, and the peculiarity disCommonwealth."-p. 57.

covered, if any. Under the Church of Steyning, Mr. At Shipley are the remains of the Cartwright, who assigns the erection Keep of a Castle, which stands upon a to the middle of the iwelfth century, knoll within a moat, and may, Mr. notices an architectural peculiarity. Cartwright thinks from its name, the

“ It is remarkable that the northern win- Kvepp, have been occupied “ by a dows appear deeply recessed on the inside, scion of that royal family in the Saxon whilst there is only a single plain course times, to which the Castle of Bramber round the outside ; but the southern windows belonged.”—p. 292. are deeply recessed on the outside, with

(To be continued.) double courses of mouldings, and have only a single one within. This contrivance was calculated to improve the external appearance Dignities, Feudal and Parliamentary, and of the south front, where was the principal the Constitutional Legislature of the United approach to the Church, and which of course Kingdom. The Nature and Functions of would be more observed than the north

the Aula Regis, the Magna Concilia, and side, and it shows what care and study the the Communia Concilia of England, and builders of that age bestowed on their the History of the Parliaments of France, works.”-p. 168.

England, Scotland, and Ireland, investiWe shall now notice a curiosity re

gated and considered, with a view lo ascerJative to the Church of Itchingfield:

tain the origin, progress, and final esta

blishment of Legislative Parliaments, and “ The Church, which is dedicated to St. of the dignity of a Peer or Lord of ParliaNicholas, is a single nave or aisle, of no ment. By Sir William Betham, Ulster greater antiquity than the age of Edward IV.

King of Arms, &c. &c. 2 vols. 8vo. or Henry VI. The tower, which hardly

WHEN a Judge charges a Jury rises above the body of the Church, is a singular construction. It is composed of that they shall divest their minds of very large blocks of timber, or rather entire all prejudice concerning the prisoner trees, fastened together with wooden bolts,

at the bar, and decide only according and is certainly as ancient as the Church. to the evidence, he requires, if they In a country so productive of timber, it is had any previous knowledge of the chaby no means extraordinary that it should racter or acts of the prisoners, a phy. . have been so applied, and indeed it is most sical impossibility; and the utmost probable that the ancient Church was of which he can reasonably expect is, the same material, of which the Church of that the evidence may qualify or coun: "Greensted in Essex is an example at the teract their prejudices as to the case present day.”—p. 330.

before them. It is also not uncommon Bramber is a castle mentioned in for a man labouring under a preposDomesday Book; and we will take leave session, not to see the wood for trees. to say, that the tower, engraved in p.

Now both these circumstances must 172, may be, and probably is, Saxon, have ensued with regard to Selden, a whatever may

be affirmed to the con man of enormous learning, but most trary. There is evidence that the castle confused intellect, who has involved was existent in the Anglo-Saxon æra, the history of our Parliaments in a and none whatever that it was built by state of entanglement, and advanced William de Braose in the time of the hypotheses which, through his eminent Conqueror. We could produce au name, have been taken for dala ; thus thorities to show that a similar style he has made puzzles which ought of towers exists among the Gothic re never to have existed, because the text mains of Italy, of date anterior to the of history and record were not literally Anglo-Saxon architecture.

regarded. In truth, the history of At Streatham, in Henfield, are the Parliaments is in all substantials clear, remains of extensive foundations, though there may exist a great defect " the site, as is supposed, of the Castle of of information upon some particular Earl Warbald and his Countess 'Tedburga, points. But there is a wide difference to whom it belonged previous to its dona

between desiderata and misstatements. tion by King Osmund, to the See of Chi Sir William Belham has produced a chester."-p. 267.

book, which for the vast number of

1831.] REVIEW.Betham's Dignities, Feudal and Partiamentary. 227 facts introduced into it, is of the highest Now the concluding sentence of Alvalue; but we differ in points, and fred's proëmium does, in our opinion, when he says, in p. 41, that

show that he was bound to consult the " Blackstone goes too far in his zeal for Witenagemote, and have their placet's the ancient constitution, when he asserts before he could legalize the measures ; that, without the consent of the Witapage and Ina says, that he enacted his laws mote, no new law could be made, or old one

by a similar assent? altered,"

That there might and sometimes we allegate that Blackstone was cor

did exist an opposition, is evident rect; and in proof thereof, translate a from Malmesbury, who says, that passage from Brompton, which, by the

Athelstan was elected and crowned way, also shows how Christianity came King at Kingston, although a certain to be first incorporated with the Law Alfred with his party (factiosis suis), of the Land. The King says, that because sedition always finds accomafter many nations were converted to plices, had tried to prevent it.? Christianity, many Synods were held

It appears from Matthew Paris, in every where; and also that in England, his Lives of the Offas,3 that it was not after its conversiou, holy Bishops and unusual in the earliest periods to tamwise Laymen resolved, from merciful per with the nobility and excite oppoconsiderations, that the Lords of the

sition; but the general inode of showsoil (terreni domini) might by the ing it was by coming armed to the aslicence of them (the Bishops), without sembly, and retiring in a body, rather sin, exact for the first fault the pecu than by debating and dividing; but in niary emendation which they (the the Parliament of Northampton, there Bishops) decreed, except the prodilio were violent debates between the ad. Domini, which admitted of no pardon, herents of the King or Becket rebecause God, under the Jewish law, spectively. 4. allowed of none to such delinquents, In p. 65 it is said that the commune nor Christ to Judas ;t and in many of consilium regni was to be summoned their Synods they adapted the penalties de auxilio assidendo, but for no other [multorum forisfactorum emendationes

purpose. We shall adduce proofs to aptaverunt], and out of a general mass to the contrary. of their Synodal books, made a code of A commune consilium regni was alchapters.

ways summoned at the election and This statement being premised, coronation of a new King; for Henry Brompton says,

the First says, in his Charler de liber. “ These, and the ten commandments,

tatibus, “Sciatis me Dei misericordia, and the laws of Moses, and the judgments

et communi consilio Baronum regni Anwhich God spake to Moses and ordered him to guard, Eifred King of the West Saxons gliæ, Regem esse coronatum ;" and to

show that this was a full Parliament, caused to be collected, and to be reduced to writing, thus saying,' I then, Alfred King,

the historian adds, “ Congregato Lonhave collected together these, and ordered

doniis clero Angliæ et populo universo."5 them to be written-many things which

In 1079, a great council was held about our predecessors have observed, and have the focaric of the priests. In 1164. pleased me, I have reserved ; and many

another was held at Clarendon, conthings which displeased me, I have rejected cerning liberties.? In 1175 a third was. by the advice of any wise men, and directed held to attest the reconciliation of to be observed in a different manner (aliter Henry the Second and his son ;8 a observari precepi) ;, and I have been un fourth in 1185, upon Henry's refusal willing to put many things of my own in

to take the kingdom of Jerusalem, to writing, because we doubt (dubitamus) what

which was also convoked the clerus et might of these (inde) please posterity; but what I found in the days of Ina my relative,

populus.9 In 1197 a fifth was held or Offa King of the Mercians, or of Ethel

at Westminster to adjust weights and bert, who was the first baptized King of

measures. 10 England, what appeared to me more just,

Now Eadmer says, as quoted in a these 1 bave collected, the rest I have dis paper recently read before the Royal missed; I, Alfred, King of the West Saxons, 1 Dec. Scriptor. 761. have shown these things to all my wise men, 2 Script. p. Bed. f. 26 b. and they have said · Placet ea custodire:''>2.

3. M. Par. 961, 962.

4 Id. p. 86. 1 Hence the writ “ De heretico combu

5 Id. 46.

6 Id. 60. Tendo."

7 Id. 84.

8 Id. 109. 2 Brompton int. Dec. Scriptor. 819, 820.

9 Id. 119.

10 P. 160.

228 Review.-Betham's Dignities, Feudal and Parliamentary. [March, Society of Literature, written by Mr. burghs) may have all their liberties Fosbroke, that whenever Parliaments and customs, and [liberty] to occupy were convoked, out of the three festi the common council of the realm convals of Christmas, Easter, and Whit, cerning the assessment of subsidies ;" suntide, when the nobility attended and then he proceeds, "and of assesscourt de more, that summonses were ing scutages, (not or of, as Sir William) issued. Under this knowledge, derived we will cause to be summoned the from contemporary authorities, we Archbishops,” &c. The truth is, that presume that the real meaning of the House of Commons' grew out of Magna Charta in the case alluded to, the necessity of their aid in general was not that summonses should be taxation, for the words clerus et populimited to the assessments of taxes, lus incontestably prove it; the assembut, in order to prevent packing Parlia- bly of the Peers and tenants in capite ments under such circumstances, that only being styled nobilitas regni, 15 they should never be omitted. Besides without any mention of the populus. this, there is another difficulty. It is Ducange (v. Parliamentum) also makes known that subsidies or aids, or tal the populus the Commons. Jages, levied in the Anglo-Saxon æra, Sir William further says, that the under the distinct forms of Burgbote, Parliament had no power of making Brigbote, Herefare, Heregeld, Dane new laws, or altering old ones, except geld, &c. but massed in the Norman under privilege of a charter previously æra, under the names of subsidies, &c. granted by the Crown, and that no as early as the Conquest,11 were gene such charter was ever granted, and ral taxes granted by the Parliaments therefore the privilege never existed. of the time, and levied upon all the 65. King's subjects; but that scutages That the Royal summons was newere distinct imposts, confined to the cessary in the times of which we are military tenants. In proof of this we speaking (viz. before John), to contranslate literally Rudborne, under the voking a Parliament out of the three year 1254.124" A general taxation, seasons of Christmas, Easter, and both of spirituals and temporals, was Whitsuntide, is authenticated; and so made throughout England, the baro is the Royal Assent, but that the ratinies excepted.It is from this distinc- fication of that assent by charler imtion, from the clerus et populus 13 be- plied no more than reduction of such ing, necessary to a money.grauting assent to black-and-white' (as is the Parliament, (the real origin, as we phrase), is proved by the circumstances presume, of money bills being ini- attached to the election and coronation tiated in the Lower House,) that we of Henry the First. He applied to be may oppose Matthew Paris's version elected King over the head of his elder of Magna Charta to that of the copy brother; to this the Parliament conused by Sir William Betham. The sented, provided he was willing com, worthy Knight's quotation stops, as to munire chartâ suâ the laws of Edward the cities and burghs, with the con the Confessor. So says Matthew Pafirmation of their liberties, customs, 'ris. The truth is, that en, as now, &c. and then says,

the Parliament could not sit without “And to hold a Common Council of the a convocation by the Crown, and if realm concerning assessing an aid [a gene- they could not sit, they could not act; ral subsidy), or of assessing a scutage, we but this assemblage was founded upon will cause to be summoned,” &c.—p. 64. a writ, not a charter. And if the King

Here subsidies and scutages are both wished particular subjects to occupy placed in the sole disposition of the their attention, he signified his plea

but Matthew Paris, 14 who sure in his opening speech, or by an lived at the very time, connects the assimilation to a Royal Message, heresubsidy concern with the cities and after noticed, under the example of burghs, as a thing quite distinct from Athelstan. the scutage. He says, “they (the A charter was not therefore a pre

vious requisite, referring to a power of 11 Cowell, v. sulsidy.

discussion ; for that the very assemblage 19 Annal. Wint.-Angl. Sacr. i. 494. of that public body implied such a

13 See hereafter for populus signifying the Commons.

15 M. Paris, 609, alluding to a Parliament 14 P. 216.

not assembled for taxation.

Peers;

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66

1831.] Review.-Betham's Dignities, Feudal and Parliamentary. 229
power in se, and was always exercised, ing out of fear implies not the non-
might be easily proved, from the times existence, but dereliction of a right.
of Ina and Alfred to the present. The The power of the Sovereign was in all
former says, that he made his laws by ancient times essentially military; and
the advice and council of his Parlia we know that where the Pope could
ment (of course then they consulted be invoked as a protector against the
together), and Alfred mentions their King, that measure was often taken;
placets, or, in modern language, con and that'such measures did imply coun-
tents. How was it possible that the teraction to the Royal prerogative, and
members could give advice or assent, initiation of new measures.
without discussion and every writ of But to resume. The Witenagemote
summons extant uses the phrase, bor had the power of making laws them-
rowed no doubt from ancient for selves, if the King authorized them so
mulæ, ad tractandum nobiscum de com to do; for, says Brompton, “these are
munibus negotiis regni; and history the judicia which the wise men made
gives instances of direct contradiction at Exeter by the counsel of King Adel-
to the King himself in Parliament, stan, and again at Feversham, and a
when, as in the case of Becket, the third time at Thundersfield.” 17
Sovereign declared that his only desire This custom is still retained in the
coram optimatibus honorari.”16

royal messages.
The privilege required from the It is very true that the Norman kings
Crown at the opening of a new Parlia made most unjust exactions, and vio-
ment was then, as now, only indemni. lated the laws and customs of the na-
fication from any consequences of a tion (as manifested by the reiterated
free expression of opinion. Nothing application for the laws of Edward the
so palpably absurd was ever meant as Confessor); but political motives rarely
calling people together to consult about have

any other than pecuniary or milia matter, and then preambling it with tary objects in view, and those of the a charter that they might do the very Conqueror and his immediate descend. thing for which ihey were purposely ants, seem to have had in particular convoked.

the elevation of the Military above the We do not therefore concede (as in Civil power. But, as with regard to p. 66,) that

the Turkish Pachas, deputed military “ Neither record nor history will justify power incites abuse and rebellion, the conclusion, that any legislative assembly civil well-being cannot exist under it. properly so called, existed in England, be

Now he who compares Magna Charta fore the death of King John.”

with the enumeration of grievances Now, were the laws required of the recapitulated in the Coronation charConqueror, Henry the First, Stephen, ter of Henry the First, will find that and John, or the Great Charter, any the former relates more to oppressions other than extortions from the Crown, of the tenants in capite, introduced by and ameliorations made by the Parlia- the military mode of government, than ment and people? and were not the to the forms and modes of holding forest laws reprobated as

Parliaments, or matters which tend to parchical arbitrary edicts? It is very elucidate the ancient history of those true that then, as now, most of the assemblies. new laws proposed emanated in point In having spoken thus upon

the of form from the Crown, because they subject, we only say that we find a far were made as such what we call Ca- greater conformity to ancient history binet measures; and in that practice in the modern usages of Parliament, we retain the ancient custom to this than in the works published upon the day. We are, however, inclined to subject, all of which, except Mr. think that the usual practice was not Lynch's recent work, seem, 'in our as now, to initiate new laws or repeals opinion, to elucidate the matter into by motions in the House, but to pro. obscurity. pose them, as wants or grievances, to The most curious and valuable part the Ministers, and to urge compliance of Sir William Berham's first volume when supplies were required. We is his demonstration of the existence shall not suggest authorities for a prac of the feudal system among the Anglotice so cominon ; but a custom grow. Saxons. This system accompanied in.

mere mo

16 Angl. Sacr. i. 9.

17 Dec. Scriptor. 847.

230

Review.-Lynch's Feudal Dignities, 8c. [March, many countries the first division of the quest, 18 appears by the will of Ebifa, an soil into private property, and prevailed Earl, cited by Lambard; and in the Conin Asia long before its pretended ori- fessor's Laws, written by Ingulphus, mengin in Europe. The histories of In. tion is made of reliefs.”—p. 41, seq. dia prove its antiquity in all substan In the paper submitted to the Royal tials. But to the extract.

Society of Literature, it is clearly shown “The following evidences establish the from record, that the greatest mistakes fact of Anglo-Saxon feudality. A charter

have existed concerning the pretended of King Ethelred fixes the land of the Ab- origin of the House of Coinmons. Dubey of Abington à regali servilio. A patent cange was of the opinion contained in of the Conqueror grauts to Alan Earl of that paper, for he says (in literal transBretagne, omnes terras et villas que nuper lation), “ Lastly, the English Parliafuerunt comitis Edwini in Eboracsire ; cum ments seem to be of the same kind as feodis militum et aliis libertatibus ita libere in France are our assemblies of the et honorifice sicut idem Edwinus eadem te three orders of the kingdom, which nuit ante obsessionem Ebor.'

we vulgarly call assemblies of the three “The Leiger Book of St. Alban's, mentioning King Offa's over-running Kent, says, chiefly assembled for this purpose,

estates of the kingdom, who were convocatis omnibus sibi officium

militare de

that, under impending war, pecuniary bentibus. King Edgar gave a hundred to Oswald Bishop of Worcester, et redditiones

aid might be rendered by all the inhasocharium et regis servientium.'

bitants of the kingdom. An anony“ Homage and fealty, due by reason of mous Englishman in the book entiknights' service, were also rendered in the tled Mirror, c. i. sect. 2, has Saxon times ; the Leiger Book of Abington “ Le Roy Alfred fit assembler les Counsays, “Turkellus did homage to the abbot of

ties—et ordeina pur usage perpetual, que Abington for his lands ;' he was afterwards

deus foits per an, ou plus souvent, pur misslain in the battle of Hastings."

ter in temps de peace, se assembleront a Here is a mistake. Turkill was alive

Londres a parlementer sur le guidament del and well temp. Henry I. See Ms. people de Dieu, et coment soy garderont de Harl. 6060, f. 93, 94. See too the pecher, viveront en quiet, et receiveront

droit per usages et saints judgements, per same MSS. no. 2188, fol. 82, 83, and

ceste estate se fieront plusors ordinances, Dugdale's Warwickshire.

per plusors Roys, jusque a temps le Roy “Ingulphus states that Edward the Con que ore est, que fuit le Roy Edowart." fessor gave to Griffin and his heirs, the prin

(To be continued.) cipality of Wales, reserving fealty. In Domesday it is stated that the burgesses of

A View of the Legal Institutions, Honorary Canterbury did homage for the manor of Northwood in Kent.

Hereditary Offices, and Feudal Baronies,

established in Ireland during the Reign of • Wardship was also in effect before the conquest. In Ina's Laws, cap. 38, the mo

Henry the Second. Deduced from Court ther was to be guardian in soccage of her

Rolls, Inquisitions, and other original Rechildren, and was allowed six shillings per

cords. By William Lyoch, Esq. F.S.A. annum in money, a cow in summer, and an

&c. &c. Royal 8vo, pp. 360. ox in winter for their support.

IT appears plain that King Henry « Likewise

escuage incident to the Second introduced into Ireland the knights' service before the conquest, as feudal system and laws which obtainmention is made in Domesday de scutagio. ed in England, and the consequence By reason also of the tenure by knights' is, that by means of documents still service, the tenant was to serve in the war, existing in reference to the former as appears recorded in the Book of Worcester, in a cause between William Bishop of

country, we may be enabled to supply Worcester, and Walter Abbot of Evesham; history of the latter nation in obscu

certain desiderata, which leave the the Bishop claimed soc, sac, sepulturam, et gildam regis, et expeditionem in terra et in rity as to its ancient Parliaments and mare. The Bishop on the hearing, brought dignities, because what was law in witnesses, who proved that the Abbot, in Ireland was previously law in EngKing Edward's time, sent soldiers for those land. Now the best vehicles of exhilands, and one was helmsman to the Bishop biting these are most assuredly legal to carry him beyond the seas. The Abbot records, “ instead of the imperfect, therefore submitted ad omnem rem sicut Episcopus clamuerat (sic.)

18 In the Laws of Canute it is called He" That relief was due before the con reget. Ducange, v. releviuma

was

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