1831.] REVIEW-Betham's Dignities, Feudal and Parliamentary. 227 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 his Lives of the Offas,3 that it was not It appears from Matthew Paris, in unusual in the earliest periods to tamper with the nobility and excite oppoing it was by coming armed to the assition; but the general mode of showsembly, and retiring in a body, rather than by debating and dividing; but in the Parliament of Northampton, there were violent debates between the adspectively. herents of the King or Becket re facts introduced into it, is of the highest "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 uptaverunt], 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.'''2 Hence the writ De heretico combu rendo." 2 Brompton int. Dec. Scriptor. 819, 820. In p. 65 it is said that the commune de auxilio assidendo, but for no other consilium regni was to be summoned purpose. We shall adduce proofs to to the contrary. A commune consilium regni was alcoronation of a new King; for Henry ways summoned at the election and the First says, in his Charter de libertatibus, "Sciatis me Dei misericordia, et communi consilio Baronum regni Anglia, Regem esse coronatum ;" and to show that this was a full Parliament, the historian adds, "Congregato Londoniis clero Angliæ et populo universo." 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 8 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. 5 Id. 46. 7 Id. 84. 9 Id. 119. 4 Id. 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,11 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 1 being necessary to a money-granting Parliament, (the real origin, as we presume, of money bills being iniiated in the Lower House,) that we may 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, who lived at the very time, connects the subsidy concern with the cities and burghs, as a thing quite distinct from the scutage. He they (the says, 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,15 without any mention of the populus. Ducange (v. Parliamentum) also makes the populus the Commons. 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 communire 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 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 grants 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.' "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.' "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 Worcester, 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 [March, 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. 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 certain desiderata, which leave the country, we may be enabled to supply 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. 1831.] REVIEW.-Lynch's Feudal Dignities, &c. contradictory, and indeed too often erroneous, statements of annalists and historians."-p. i. The points which are most especially established are, (1) the antiquity of the House of Commons, as essential to a full Parliament, when a general pecuniary tallage ensued; and (2) the existence only of baronies by tenure, in the early periods (office, we add, excepted), for the Judges anciently voted as Peers, and so de cæteris. In proof of the first position we adduce the following writ of John, by which we see who were the "clerus et populus" of our own historians. The latter is especially designated by the words citizens, merchants, burgesses, and freeholders. "On the 10th of February, in the 5th year of his reign, the same King issues his writs to the Archbishops, Bishops, Abbots, Priors, Archdeacons, and Clergy, the Earls, Barons, Justices, Sheriffs, Knights, Citizens, Merchants, Burgesses, and Freeholders, and all other his faithful in Ireland, acquainting them that au Aid had been granted him in England, and praying them to grant him, non consuetudinarie set amabiliter,' a similar Aid in this moment of his necessity, as the Justiciary of Ireland, Walter de Lacy, and others, whom he sends over, will declare to them. To obtain au extraordinary Aid like the above was the principal cause at that period of convoking Full Parliaments: only in the commune concilium' could such supplies be granted." -p. 38. That the populus appeared by representation is a desiderata as to evidence, but that it did do so is to be inferred from the Clergy appointing procurators, of which we have authentic evidence prior to the pretended introduction of representatives in the time of Edward the First. And the words merchants, burgesses, &c. show that the House of Commons did not grow out of the representatives of the inferior tenants in capite, as erroneously surmised. In truth, the tenants in capite, merely as such, never had a right to attend Parliament; only those who held baronies by tenure, there being in the early periods no other baronies. In p. 126, we have positive proof of this. In a close roll of 51 Edw. III. the King declares, IT HAS NOT HITHERTO BEEN THE LAW OR CUSTOM IN OUR REALM, THAT ANY PERSONS, WHO HAVE NOT HELD BY BARONY, OUGHT TO BE SUMMON 231 ED TO OUR PARLIAMENTS, OR BE FINED FOR ABSENTING THEMSELVES. It is very true, as appears from a clause roll of John extracted by Selden, that upon the convocation of a full Parliament for levying aids, scutages, &c. all the tenants in capite were mustered by summons, but that they did not join the Peers, only appointed four knights to represent them in the general business of Parliament, which knights did not sit in the Upper House, for the extract now to be quoted shows that such persons were summoned, but only among the Commons, and not among the Peers, until they had acquired the estates requisite to constitute a barony. Thomas Vernoill or Verneill was summoned as a Knight to the Parliament of Dublin 48 Ed. III. and again to that of Kilkenny, 50 Ed. III. That he was not summoned as a Peer, is evident, because he was ordered to be summoned by the Seneschal of Meath, and no Peers were summoned by Sheriffs or persons of that rank. The presumption here is, that he had been elected a Knight of the Shire. He was, however, fined for non-attendance, but in his prayer of remission, states particularly, "Because nome of his ancestors were ever summoned before this time to any Parliament except amongst the Commons. This latter allegation as to the petitioner's ancestors, which is evidently true, was not however considered by the King as a legal cause for absence; and therefore, in issuing his writ to the Exchequer, he merely commanded that the one point, namely, the wars of the Connors and Bermyngham, should be inquired into; and the jury having found that this Thomas on account of those wars could not attend that Parliament without destruction of his country, the fine was discharged, and only on that account. In consequence, as Sir Thomas Vernoill's estates in Meath were of great extent, and sufficient to qualify him on the principle of Tenure, he con tinued to be summoned afterwards as a Feudal Baron by special writ, notwithstanding that his ancestors, never having so great an estate, had never been summoned amongst the Peers."-p. 127. The Barony by Tenure, as dependent upon estates, is proved by the following extract from a record, which refers to the practice in the time of Heury the Second. It is evident from thence, that persons who held a given estate had a claim to be summoned (the omission of which forms one of |