THE ORIGIN AND HISTORY OF THE CONSTITUTION OF ENGLAND, &c. &c. PRIWTSD B7 f. 1). HARDV, 3, CECILU.STKBET. THE ORIGIN AND HISTORY CONSTITUTION OF ENGLAND, AND OF THE EARLY PARLIAMENTS IRELAND. BY SIR WILLIAM BETHAM, ULSTER KINO OF ARMS, &c. DUBLIN : WILLIAM CURRY, JUN. AND CO. SIMPKIN AND MARSHALL, AND T. AND W. BOONE, LONDON ; OLIVER AND BOYD, EDINBURGH. 1834. ADVERTISEMENT. IT having been suggested that the title by which this volume was first published, very inadequately expressed its real character: it has been thought expedient tore- publish it with one more fully declaring its contents and objects, which were intended to show the origin and gra- dual progress of the parliaments or legislative assemblies of England, until the period when they acquired the form and consistency which existed until the passing of the Reform Bill, and of the parliaments of Ireland to the reign of Henry the Seventh. A second volume containing the sequel of the history of the parliaments, and other matters connected with the history of Ireland, was intended to have followed, but finding the materials to apply more properly to a general history of Ireland, than to its parliaments exclusively, they have been reserved for such a work. Some ne- cessary additions have been made to this volume, illus- trative of the causes which led to the enactment of Poyning's law, and other matters connected with the his- tory of that very interesting and extraordinary period, so as to render the present work complete in itself. CONTENTS OF VOL I. CHAPTER I. OBSERVATIONS. Feudal earls and barons confounded with modern peers, because called by the same names Feudal dignities introduced by the Normans, but lords of parliament, are purely of English origin Nobility not necessarily connected with sitting in parliament Ancient statutes, ordinances of the king No deliberative legislative assembly in England before the reign of Henry III. Parliaments of that reign revolutionary conventions Abrogated after the battle of Evesham, when the old constitution was restored- Feudal dignities totally distinct from sitting in parliament The aula regis, or judicial parliament, not legislative Trial by sectatores Bracton says the king in his day was both maker and interpreter of the laws Feudal institu- tions of the Normans and Saxous, borrowed from those of France. Page 1 CHAPTER II. THE ANCIENT COUNCILS, PARLIAMENTS, PEERS AND NOBLES OF FRANCE. The ancient constitution of France, substantially the same as that of England Charlemagne Boulainvilliers Champs de Mars et de Mai Parliaments before Hugh Capet France a great feudal community during the reignof her first ten monarchs Normandy separated from France by Charles the Simple Origi- nal noblesse of France the descendants of the Franks only Louis le Gros first enfranchised towns The king not originally the fountain of honour nobility incommunicable but by birth Philip the Third the first monarch who ennobled by patent Hugh Capet, duke and peer before his accession to the throne, two descriptions of fiefs held of him, as of his duchy, of which his castle of the X CONTENTS. Louvre was caput, and as of the craven of which, before his ac- cession, lie held Iiis duchy Rights of lands held by barony in France Peers of Flanders, Hainault, and Artois Henry I. of England, attended the parliament of France at Rheims in 1129, as duke of Normandy The kings of France humbled gra- dually and eventually deprived Ihe peers of all power Sale of privileges to serfs and tradesmen Parliament of Paris in 1223 Parliament at Anceuy in 1230 At St. Denis in 1235 Parliament of Paris in 12JO-I attended by deputies from the good cities St. Louis began the practice of purchasing from his vassals the privileges of the baronage The parliament purely a court of justice Rise of the states-general consisting of three orders, the clergy, the nobility, and the people, anew idea of Philip the Fair First called in 1301, shortly after the first le- gislative parliament of England The third estate very humble, and presented their petition on their knees 21 CHAPTER III. THE FEUDAL COURTS IV ENGLAND IN THE SAXON TIMES, AND FROM THE CONQUEROR TO THE REIGN OF HENRY III. Witana- gemote the king's council the king's the enacting power William the Conqueror introduced the feudality of Normandy into England His laws Changed the nature of all landed pro- perty and subjected it to the feudal incidents The commune con- cilium regni, invested with no power beyond the grant of an aid or subsidy, which it possessed by the Conqueror's charter The succeeding charters down to that of John, merely recapitulations and confirmations of the Conqueror's, and gave no additional liberties These chaiters merely acts of the king The courts held by these kings never acted legislatively William Rufus Henry I. Stephen Henry II. Constitutions of Clarendon Acts of the king in his great court of barons Not legislative Richard I. John enacts a statute at the iustance of certain barons who happen to be with him The great charter an act of the king No reference to a legislative as- sembly, during the disputes between John and his barons Le- gislative power must have been acquired by the concession of the CONTENTS. XI crown The struggle between the king and 1m barons arose from the violation of their chartered rights No legislative assembly existed in England until after the reign of king John 41 CHAPTER IV. HENRY 111. State of the kingdom on his accession A minor, aged ten years The guardian, William, earl Marshal, issues a new charter Difference between this charter and that of king John Issued by advice of the king's council Published in the counties, and in Ireland A second charter issued in his second year A third in his ninth Henry questions the legality of the charters issued during his minority Issues a new charter of confirmation in his 21st year Commotions and discontents Meeting in Lon- don in 1237 Commune concilium summoned 1242 First mention of parliament 1246 Council of 1253 Knights of the shire first summoned Commencement of revolutionary period Meeting at Oxford 1257 The first legislative parliament altogether unknown before in England A revolution The king a pri- soner in the hands of the earl of Leicester, who exercised all the royal authority in the king's name Le commun de la terre The king compelled to observe the new constitution The par- liament assumed the title of le commun de Engleterre The king abdicates the royal authority by writ Confirms all the acts done and to be done by the commun Provisions of Westminster in 1258 The king calls a meeting at Windsor in 1260 The earl of Leicester, a counter-meeting at St. Alban'sand summons three knights for each shire to treat with Leicester and his parliament A truce between the king and Leicester, &c. The king declares his determination to abide no longer by the provisions of Oxford Disputes referred to the king of France, who declares for the restoration of the king's ancient authority, he confirming the charters No reference to a legislative body the barons reject the award of the king of France A civil war Victory of prince Edward at Northampton Defeat o! the king at Lewes Taken prisoner The barons compel the king to agree to the settlement of the kingdom by them Parliament of London Knights of the shire summoned, but no citizens or burgesses Leicester again XII CONTENTS. assumed the sovereign power, but in the king's name Parliament at London in 1263, 48 Henry III. Council appointed to act vice tlomini rcgis Parliament of London, 49 Hen. 1264 Citizens and burgesses summoned for the first time Their expenses paid A mere packed parliament of Leicester's friends The princes Ed- ward and Henry nominally released - Ordinance of forma regimi- nis dominiregis et regni No mention of this parliament in any con- temporary historian Leicester's tyranny estranges the nobles, some of whom leave him Prince Edward escapes and joins the discontented barons Followed by earl Warren and others- Raises an army Battle of Evesham Leicester defeated and slain Counter-revolution The king restored to his ancient power and authority, and the parliament set aside The king summons his council of magnates at Winchester, in which he attaints Leicester's adherents Death of Henry III 67 CHAPTER V. EDWARD 1. His first parliament held at Westminster, 1274 Statute de vim religiosis Magna concilia at -Northampton and York in I2S3 Parliament at Shrewsbury, 1282 Statute of Acton Burnelt, or de mercatoribus, an ordinance of the king No par- liament held at Acton Burnell Statute of Winchester Of the city of London All statutes to this period ordinances of the king, as are the laws made at this day for the islands of Jersey, Guernsey, &c. Discontent at the king's absence in France Statute of quiii emptores terrarum Of quo tcarranto de consulta- tions The Scottish controversy for the crown General legisla- tive power conceded to the parliament Statute de tallagio non concedendo Charter of legislative power Parliament at Lincoln King's power to enact laws New constitution Effect of the statute quia emptores terrarum Constitution of parliament not finally settled 99 CHAPTER VI. EDWARD II. New coronation oath Lords Ordainers supersede the royal authority Archbishop of Dublin summoned to the CONTENTS. xlii English parliament Piers de la terre first named Hugh le Despencer The legislative authority first defined by statute to be in the king, with assent of the lords spiritual and temporal and commons in parliament assembled A novelty The final settlement of the struggle between the king and the barons Death of Edward II 131 ,'J :',*. '." - ' "I CHAPTER VII. EDWARD III. Houses of parliament not yet divided States- general of France first established at the same period as the legislative parliaments of England Roger de Mortimer, con- demned by the peers, who refuse to try Beresford because he was not a peer Peers who were not earls or barons Plein parlia- ment Parliament at York Knights act separately from the citizens and burgesses The cause of meeting first notified to the commons Grants made by the peers tcho held by barony for themselves and tenants, separately from others And by the com- monsCommittees for petitions appointed Persons bound to come to parliament Magnum concilium at Westminster Ordi- nance of the staple then promulgated Election of knights of the Shire. RICHARD II. Popular insurrection Persons liable to be amerced for non-attendance to the summons to parliament All persons receiving summons made liable to fine for non-attendance, as well as those who held by barony First peer of parliament created by patent The constitution not yet finally arranged Deposition and death of Richard 11. The parliament change the succession to the crown, and appoint Henry of Lancaster, not the right heir, to be king A new revolution The peers alone judged Richard The powers of the commons defined and extended to " advice on all things for the common profit of the realm'' The descent of the crown settled by the statute, and the knights, ci- tizens, and burgesses, declared the representatives of the whole nation, and the third estate Progress of the Constitution from the conquest to this period, when it finally assumed its present form Dignity of a peer of parliament aiose out of revolution, and cannot be dated prior to the revolution out of which it sprung 146 XIV CONTENTS. CHAPTER VIII. MODERN PEERS OF PARLIAMENT. Third Report of the lords com- mittees Members of the common council of the realm had no dig- nities No reversion of dignity in the crown King may refuse a service No reservation of the service of a baron Earls mentioned in Domesday merely personal Service of the constable refused by Henry VIII. Case of Thomas de Furnival, who although a lord of parliament, denied being a baron Earls always by creation Grant, or conveyance, of a territorial earldom did not confer the dignity of earl Earldom of Arundel, claimed and al- lowed on false premises No peer or baron of parliament ever created by any other means than by summons with sitting, and by patent A comitatus or earldom Earls under the Saxons Bracton division of the laity Earls, barons, vavasors, knights, freemen, and slaves Littleton silent on tenure by barony Baronies of Ros, Clifford, and Fitzwalter Restoration of the peerages of Le Despencer and Bergavenny Archbishops and bishops not peers by tenure, their dignity secular, are lords of parliament 6j/ succession, not by tenure Barons of a palatine li- berty Name of baron given to a man in the ancient records, rather against than in support of the probability of his being a lord of parliament The lords of palatine liberties had power to enfeoff their tenants with cognizance of such pleas as were pos- sessed by the king's barons, and therefore such tenants were also called barons 167 CHAPTER VIII.* CONSTITUTION o THE AULA REGIS. All tenants of the crown in chief obliged to attend when summoned Chief justiciary pre- sided All tenants in chief might attend whether summoned or not Those summoned called to secure a full court A national court of justice Few beyond the number summoned attended All business now entertained by the courts of law and equity dispatched therein Fines levied Officers appointed to hearsucli causes as this court sent down to them Not justices such as now preside in the courts Writs returnable before the king or his justiciary The office of justiciary of great dignity and power CONTENTS. XV The second person of the realm The king's lieutenant The barons tried in this court The Court of Common Pleas ap- pointed The chancellor Discontinuance of the office of lord justiciary at the end of the reign of Flenry III. Exchequer se- parated from the aula regis by Edward I. The lord high steward lord justiciary during the trial of a peer The curia, or aula regis, summoned by general writ Distinction between the curia regis and the commune concilium regni German nations had two courts, one meeting at stated periods, the other on emergencies Causes which produced the changes in the administration of law, and the constitution of the courts and of the legislative authority Application of results to claims for peerage No man can now claim to be a member of the aula regis, or to be summoned to the curia baronum Reasons wherefore All claims now for a peerage must be for a peerage of parliament Concluding observations on the foregoing chapters 209* CHAPTER IX. FEUDAL INSTITUTIONS AND PARLIAMENTS OP SCOTLAND. Lord Kaimes The feudal customs of England and Scotland the same The latter borrowed from the former The attendance of a baron by tenure in parliament, a service and not a dignity The grant of lands with regalities conferred authority but not nobility Peer- age a mere personal dignity. Mr. WALLACE Peerages did not exist in Scotland in the sixteenth century, every freehold before 1587, gave the possessor an inelective seat in parliament The creation of lords of parliament not introduced in Scotland till the return of James I. to Scotland in 1425 Title of baron not con- ferred by the crown Called so because the party possessed lands called a barony Small barons and free tenants excused from at- tending parliaments by statute in 1427, if they sent two wise men to represent them, but not prohibited from attendance Barons in Scotland included [all tenants in chief but burgesses At the revolution of 1688, commissaries for the shires constituted the second estate, and the burgesses the third Ancient Scottish sta- tutes The Regiam Majestalem,ihe oldest institute of Scottish law, borrowed from Glanville , 200 Xvi. CONTENTS. CHAPTER X. IRELAND. Legal institutions of Ireland formed on the English model Documents on the rolls, referring to Ireland, emitted in the Faedera Introduction of English law into Ireland Ancient rolls of the chancery of Ireland burned Statute of Henry Fitz- Empress Writ of the 6th of John, fixing the periods from which writs might be pleaded. to have run Charter of liberties of Ire- land English and Irish practice of the law uniform from the conquest Anglo-Irish students, from the Conquest, sent over to acquire a knowledge of the law to the English Inns of Court Care taken at all times to preserve the uniformity of Irish with English practice of law Englishmen made judges Quod jus- ticiarii in ilibernia Anglici esse deberent Opinion of lord Coke, and other lawyers, on the subject Knight's tenure and service Talliage in Ireland Irish barons first summoned cum rquis et armis 252 CHAPTER XL EARLY COUNCILS AND PARLIAMENTS OF IRELAND. Henry III. First statute of Ireland, 53 Henry III. Edward, lord of Ireland in his father's life-time Customs granted by the magnates of Ire- land. EDWARD I. Cities and boroughs not represented in the parliament of Ireland Domesday Book of Dublin Singular agreement between the cities and boroughs of Ireland in support of their privileges Fines of barons for not attending parliament, 1281 English statutes of Westminster the first, Gloucester, and Westminster the second, made law in Ireland by proclamation Certain magnates of Ireland, for themselves and tenants, grant the king a subsidy by letters patent Parliament of 1297 Con- stituent parts Its acts and ordinances Placita parliament! of 1298 Parliament of 1299-1300 Singular proceedings thereof The lord justiciary proceeds to the cities and towns, and obtains a subsidy or grant from each separately and distinctly Afterwards at the suggestion of the magnates, he proceeds to the counties and liberties, and also obtains a grant from the communities thereof The counties, cities, and boroughs, send tico, three, or four representatives 522 CONTENTS. XV11 CHAPTER XII. EDWARD II. Statute of Winchester transmitted to Ireland and proclaimed First enrolment of writs of summons to the parlia- ment of Ireland, 3 Edward II. 1309 Petition of grievances to the king in 1316, whereupon the king directs a parliament to be summoned Pardons not to be granted by the lord justiciary, but in parliament Statute of the parliament of 1323 A full parlia- ment Ordinances of the staple transmitted to Ireland, 1325. EDWARD III. Parliament in Dublin of 1328 Parliament at Kilkenny, 1330 A baron excused from attending parliament on account of the war with the Irish of his neighbourhood Three English statutes passed at York, transmitted to Ireland and pro- claimed, 9 Edward III. 1335 Parliament at Kilkenny, 1346 Grants the king a subsidy The bishops and clergy excommu- nicate the king's officers and collectors The clergy grant a subsidy for themselves, 1347 Statute de servienlibus et operariis, enacted by the Irish parliament Magnum Concilium at Dub- lin, 1359 The lords spiritual and temporal, and representa- tives of the counties, cities, and towns of Leinster, summoned to meet in Dublin, those of Munster, at Waterford Great coun- cil for Leinster summoned in 1360 Parliament of 1361 Makes a representation to the king 1364, the parliament fixed the price of provisions The exchequer removed from Carlow to Dublin, at the instance of the parliament 1366, and the salaries of the officers thereof fixed 1367, the parliament make a re- presentation to the king of the state of the country, and complain of absentees The king ordains that all who possess lands in Ire- land should reside thereon Method of enacting laws by the king William de Wyndesore lord lieutenant Complaints against him Parliaments held by him at Dublin, Baldoyle, and Kil- kenny John Fitz-John, baron of Delvin, (a baron of the pala- tine of Meath) representative for the liberty of Meath , 44 Ed. III. 1370 A magnum concilium held in Dublin 1373, persons summoned thereto by the sheriffs and seneschals 1374, A mag- num concilium held in Dublin Persons summoned thereto 1375, a parliament at Kilkenny Walter L'Enfaunt summoned thereto as a baron by tenure Fined for non-attendance Petitions XV111 CONTENTS. the lord justiciary Is excused and acquitted of the amerciament, because he did not hold by barony Fines for not attending parlia- ment Drogheda sends sometimes one, at others two, three, and four representatives 282 CHAPTER XIII. COCHTCILS AND PARLIAMENTS OF IRELAND FROM RICHARD II. TO RICHARD III. 1373, parliament at Tristledermot Persons summoned Names of those fined for non-attendance 1379, par- liament at Dublin Persons summoned 1381, parliament at Dublin Persons summoned Protest of the parliament against informalities, exemplified under the great seal and enrolled in chancery 1379, writ directing certain English statutes to be proclaimed and observed in Ireland. HENRV IV. Parliament in Dublin ia 1402 Statute against forcible entry 1404, a par- liament in Dublin Others in the years 1406, 1408, and 1410. HEWRY V. James, earl of Ormond, lord lieutenant, 1420 Holds a parliament, which makes a representation of grievances, and the state of the country to the king Transmitted under the great seal Oppressions of lords lieutenant Deficiency of coin- age That the Irish chiefs who did homage to Richard II. were become outlaws and rebels Prays that the pope may be solicited to proclaim a crusade against them That Thomas Crawley, arch- "bishop of Dublin, was appointed to carry a message from the par- liament, in the fourth year of the king, to his majesty, but the chancellor refused to put the great seal thereto That the said chancellor be called to account for the same Decay of trade, manufactures, and agriculture Sir John Stanley, and Sir John Talbot, lords lieutenant, their oppressions That commissioners may be sent to inquire into the conduct of the governors asd the other officers of the king in Ireland The good conduct of the earl of Ormond, as lord lieutenant That illiterate persons held offices in the exchequer, and did the duties thereof by deputy That the Irish students of law had beeu refused admission into the Inns of Court in London, which had been accustomed since the first conquest of Ireland That the Spaniards and Scots pinites captured the Irish vessels with impunity That the escjieators CONTENTS. xix were not responsible persons as they ought to be That the Irish had not the advantage of the king's general pardon of debts as they ought to have had That the statute of absentees of 3 Rich- ard II. had been put into execution beyond the meaning thereof That one John Prys, chaplain, had violated the king's preroga- tive, by purchasing a bull from the pope, to be parson of the church of Galtrim, in the diocess of Meath The lord lieutenant had not authority to receive the homage of the king's tenants in chief, of all which evils they prayed remedy Diminution of the English Pale Diminished size of the plea rolls 1426, great council 1428, parliament make a representation of grievances to the king Sent over by Henry Fortescue, the chief justice, and Sir Thomas Strange The melancholy state of the Anglo-Irish, from the incursions of the Irish enemy Good services of Sir John Sutton, the lord lieutenant Oppressions of former lieute- nants False suggestions made by private individuals to the king, should not be attended to 111 treatment of the Anglo- Irish in travelling to London Compensation prayed for the earl of Ormond His valuable services That the lord lieute- nant may present to void livings That the injury inflicted on Henry Fortescue, the chief justice, and Sir James Alleyn, knt. the former messengers of the Irish parliament may be punished That the former lieutenants may be compelled to pay their debts That the Irish students of the law may be admitted to the Inns of Couit as hitherto That the answers and promises made to Fortescue and Alleyn, the former messengers may be fulfilled Letter accompanying the foregoing 1430, parliament at Dub- lin Bishops and others fined for not attending parliament, and for not returning the writs 1431, parliament 1435, parliament send over Sir Thomas Stanley, the lord lieutenant, to the king, with a letter and a statement of grievances That Ireland was nearly lost to England by the encroachment of the Irish Not thirty miles long and twenty wide where the king's writs run Of one hundred and forty castles in the county of Carlow, which were in defensible order thirty years before, but two remained, viz. Carlow and Tillagh Kilkenny, Wexford, Waterford, Cork, Limerick, Tipperary and Kerry, in the hands of the Irish, so that the cities of Cork, Limerick, and Waterford, were nearly starved for - XX CONTENTS. want of provisions The lieutenants had not visited these counties for thirty years lu Ulster, no town* in possession of the English but Carrickfergus and Ardglass In Counaught, but Galway and Athenry No power in the lord lieutenant to receive homage Depredations by Scotch, Breton, and Spanish pirates Prayer for general relief and protection Parliaments held in the years 1439, 1446, 1448, 1449, 1450, 1453 Great council in 1454 Ordinances made therein considered law Parliaments in 1455, 1456, 1457, 1459 Dispute between lords Gormanstown and Slane for precedence, act of parliament to settle same. EDWARD IV. 1462, parliament in this year Dispute between lords Gor- manstown and Slane renewed Made again the subject of an act of parliament Given in favour of lord Gormanstown, as lord of Kells in Ossory Origin of the barony or peerage of Kells, by summons of Walter de Bermingham to parliament by Edward III. Pedigree Parliaments of 1463, enactment of privilege Par- liaments of 1465, 1467, 1469, 1471, 1474, 1475, 1477 Repeal of the acts requiring certain qualifications of members of the com- mons house Parliaments in 1479, 1480 Duty on exportation of Irish hawks. RICHARD III. His letter stating the period of the commencement of his reign Gerald, earl of Kildare, lord lieutenant His singular enactments 322 ORIGIN AND HISTORY OF THE CONSTITUTION OF ENGLAND. CHAPTER I. GENERAL OBSERVATIONS. ON common topics men argue rationally and logically, and proceed to their investigation according to rule ; but their free and glorious constitution was, formerly, to Eng- lishmen so much an object of veneration, and almost idqlatry, that they could not be satisfied in seeking its origin amongst sources similar to those from which have sprung the institutions of other nations, but searched for it in the clouds and mists of antiquity, and in the camps of their barbarous northern ancestors, and, indeed, any where but in its true locality, and, therefore, have been led into a labyrinth of contradictions and anomalies. Writers on the history and constitution of England have fondly clung to the idea that from, and even before, the Norman conquest, there existed something like a po- pular, constitutional, and free government, and a repre- sentation of the people, which they imagined to have B 2 GENERAL OBSERVATIONS. exercised the functions of legislation during the period of Saxon jurisdiction, continued, but in a modified and al- tered shape, in the reigns of the first eight kings of the Norman race. Even the Lords' Committees were not free from the influence of this national, this patriotic infir- mity, for they repeatedly admit, they can discover no evidence of a popular constitutional legislation, yet speak of the constituent parts of the legislative assemblies of those times. The natural and logical method which suggests itself, is to adopt the plan one would follow in investigating the constitution of a corporation ; and the first question is, " IVJwt liberties and rights are granted by the charter ?" Unless the enjoyment and use of liberties, not contained therein, - were manifest by the practice of the corporation, the charter would be presumed to include the whole ; but if it were evident that such liberties were used and enjoyed from a given period, then a subsequent grant might be fairly presumed, the record whereof had been lost; but no legal or logical mind would presume the existence of liberties and franchises, which appear neither in the charter, or by the usage of the corporation. It is no easy task to examine a subject like this, with- out touching on other matters, differing indeed, but at the .same time so closely connected with, and related to it, by custom, times, and circumstances, that it is next to im- possible to understand one, without a correct knowledge of the other, so dovetailed and interwoven are they toge- ther, arising out of, and dependant on each other. GENERAL OBSERVATIONS. 3 The laborious and voluminous reports of the Lords' Committees contain a great mass of information, but it may be said to be of materials only, mixed up, indeed, with reflections and arguments, but in such a form, that minds endowed with vigorous and strong powers of ar- rangement, alone are able to digest them, after repeated readings and the most painful investigation. Their lord- ships draw conclusions, but declare them to be unsatisfac- tory, and that they have not been able to dissipate the mists of uncertainty, in which the origin of the dignity of a peer of the realm is enveloped. When those noble, able, and acute lawyers, statesmen, and scholars, are dissatisfied with the result of their labours, it is little less than presumption, in so humble an individual, to undertake the task, but in the hope of rendering some service, I have been induced to persevere. Early in the investigation, I found that many indi- viduals were denominated barons, who never could have obtained that title by silting in parliament, and earls palatine, who did not bear, as titles, the names of the counties of which they were earls; these titles could have no necessary connection with sitting in parliament, and, therefore, earls and barons were not, as such, peers or lords of parliament. This led to a conclusion, that the ancient assemblies of barons were different in their constitution and objects, to those we now call parliaments, and opened an extensive field for investigation. The Lords' Committees in the following extract, have suggested a reason why the history of the Parliaments of B 2 4 GENERAL, OBSERVATIONS. England has so long been a matter of difficulty and ob- scurity : " One thing has been sufficiently shown by these re- " ports, namely, the danger of going far back into anti- " quity, to establish rights to the dignity of peer of the " realm, not sanctioned by continued usage of later years; " and of applying the principles established by modern reso- " lulions and decisions to what haspassedin earlier times"* This idea, however, is not altogether new. Mr. Reeves in the preface to his " History of the English Law," says, " I found that modern writers, in discoursing of the an- " cient law, were too apt to speak in modern terms, and " generally with a reference to some modern usage. " Hence it followed, that what they adduced was too often " distorted and misrepresented, with a view of displaying " and accounting for, certain coincidences in law at dif- " ferent periods. As this had a tendency to produce very " great mistakes, it appeared to me, that in order to have " a right conception of our old jurisprudence, it would be " necessary to forget for a while, every alteration which " had been made since, to enter upon it with a mind wholly " unprejudiced, and to peruse it with the same attention " that is bestowed on a system of modern law." With all our care, and fortified with a determination to be go- verned by those principles, we are very apt to fall into errors in a discussion of this nature, and unconsciously cling to prejudices, even after we are convinced of their being erroneous. * Third Report of the Lords' Committee, p. 236. GENERAL OBSERVATIONS. 5 The difficulty of rightly understanding the real cha- racter of English titles of dignity has thus, in a great measure, arisen from confounding persons possessed of feudal seignories in ancient times, whether called earldoms, honours, or baronies, with peers, or lords of parliament, which although distinct, and altogether different in their nature and origin, yet' time and disuse having gradually obliterated all precise recollection of their functions, peers, or lords of parliament, have been confounded with the ancient earls and barons, merely because they bore the same names. The feudal system obtained almost over all Europe, with certain local peculiarities ; for it accommodated itself to those customs and laws which existed in the countries where it was introduced, and its principle was to vest in the chief of a district, whether called an earl, baron, or lord, judicial authority, and cognizance of the pleas pe- culiar to the country. Thus the Saxon laws, pleas, and customs, found in England at the conquest, were after that event administered in the feudal courts of the Nor- man barons, although very dissimilar to those of Nor- mandy. Earls (or counts) and barons, existed in coun- tries where legislative assemblies were unknown. In most parts of Europe, individuals were invested by the sovereigns with extensive territories who, in these seignories, possessed jurisdiction and power, and they had their courts and judges, where they administered justice and law, rendering homage, fealty, and military ser- vice, to the sovereign. In the Gallic possessions of the English kings there were earls and barons, who owed them service, while the kings themselves were vassals of, 6 <3ENEHAL OBSERVATIONS. and did homage to, the sovereigns of France as their liege lord. Cruise commences his able and useful work on Dignities with the common errors, and thus the evidence he pro- duces annuls his conclusions. He says, " The dignities, or titles of honour which exist in Eng- " land, derive their origin from the feudal institutions, and " were introduced into this country by the Normans." Having thus laid down as a principle, that the ancient barons were possessed of similar functions as a modern peer of parliament, he calls the assemblies of those barons parliaments, and the laws, enacted in those times by the king, acts of parliament, and by thus embarrassing his subject, becomes involved in difficulties from which he attempts to extricate himself by presuming the enactment of imaginary laws, at some period of English history, which he is totally unable to fix upon, or even to guess at, from any indications, or signs of the times, to be found in record or history. That feudal or territorial seignories, called counties pa- latines, or earldoms, and baronies, were established in Eng- land by the Conqueror, there can be no doubt ; but the names only of the existing dignities are of Norman origin, their nature and origin are altogether English growth. In his first chapter Mr. Cruise states that these feudal dignities were not " mere personal distinctions, but were " annexed to lands, and were conferred by a grant of those GENERAL OBSERVATIONS. 7 " lands." " And that the feudal sovereigns claimed and " exercised the right of erecting a particular tract of land " into zfeudum dignitatis" " That feudal dignities were " transferable with the feuds to which they were annexed, " and a purchaser acquired the dignity with the estate" " That in France in ancient times every person holding " his estate immediately of the king, with a right ofadmi- " nistering justice* to those who held under him, in civil " and criminal cases, was entitled to the appellation of " a baron" and he quotes the Grand Coustumier de France, lib. 2, c. 2 " Tout komme qui a haute justice en " ressort se pent nommer Baron." Spelman says : "Baronem vacant qui merum mistumque " imperium habet in aliquo casiro, ex concessione principis , " vel ut alii loquuntur, summa; media et infima jurisdic- " tionis : jus in arce, quadam a principe concessum." In the Grand Coustumier de Normandie, under the head Tie Releviis, is the folio wing passage: " Vnde notandum est " quod qu&dam sunt feuda capitalia, qucsdam supposita; " capitalia sunt qua; in capite tenentur, ut comitatus, " baronite, et feuda loricte." In the grant to William de Broasa of the honour of Limerick by king John, he is directed to hold " adeo libere " ut alii capitales barones nostri in Hibernia tenent." * Cognizance of certain pleas was granted in all the patents of those lands called baronies in England and Ireland, which power or jurisdiction constituted the barony, and, as in France, might be con- sidered as its nominating principle. 8 GENERAL OBSERVATIONS. In page 10, Mr. Cruise calls the councils, directed to be summoned under the 14th chapter of Magna Charta, par- liaments, and again in 34, he says, that "the right of sit- " ling in parliament, was confined to those who held entire " baronies, and that before the reign of Henry III. every " tenant, in capite, was, ipso facto, a parliamentary baron, " and entitled to be summoned either by the king's writ, " or by the sheriff of his county, yet about that time some new " law teas made, by which it was established, that no person " though possessed of a barony, should come to parliament , " without being expressly summoned by the king's writ." Mr. Cruise is compelled to presume a law, in order to account for what his intelligent mind was convinced was true, namely, that no one could attend a parliament itnless summoned, and yet not even a reference to any such law is to be found. The ancient councils were not constituted in the same manner, or invested with the same powers in modern par- liaments, therefore, what was strictly legal in respect to the communia concilia, was totally changed on the insti- tution of parliaments. The communia concilia regni, consisted only of the king's tenants in chief, as of the crown. Lord Coke says on Magna Charta: "It is to be under- " stood, that if the king give land to one, and his heirs " tenendum de rege per servitium baronies, he is no lord of " parliament until he be called by writ to parliament." Considering parliament as a court of justice, all the GENERAL OBSERVATIONS. 9 barons by tenure were bound to attend, if summoned, and were liable to amerciament for refusal or neglect. Mr. Cruise followed the errors of his predecessors, by confounding the personal dignity of a peer in parliament, inherent in the blood of the possessor, with a title or name attached to land, merely judicial, having little, if any legislative character; whose owner possessed no power beyond his own bounds, or over his own vassals, except the right, or liability, of attending the king's baronial court to perform the functions afterwards executed by juries, and the right of granting to the king a part of his own or his vassal's property. On the institution of parliaments, the crown naturally selected individuals possessed of the greatest property and influence in the nation, to be the peers, or lords of parliament; and although many of the barons by tenure were omitted, who had lost their influence and conse- quence, by disposing of their estates, and some wealthy persons holding by subinfeudation or otherwise, were summoned as peers ; yet many of the ancient barons still were the most wealthy and powerful, and, therefore, were summoned to the newly-established house of peers, and thus made lords of parliament. Their continuing to bear the title of barons, led to the conclusion, that the new dignity of a peer was a continuation of their former one of a feudal baron, and to the confusion which, for ages, has existed on the subject. To understand, therefore, the true character of the baronies by tenure, it is necessary, as suggested by Mr. 10 GENERAL OBSERVATIONS. Reeves, to divest ourselves of the ideas which modern parlance has attached to the titles of earls and barons ; and also of the modern meaning of the word noble, which, in England, is exclusively attached to those families whose heads are dignified with a seat in the upper house of parliament, and are called peers of the realm. In France, and generally on the continent, the pos- session of a noble fee conferred nobility, but not a peer aye; for nobility, as before stated, has no necessary connection with sitting in parliament. In the language of France, and in legal language in England, every man entitled to bear arms is noble. The word gentilhomme, means a nobleman, although he may have no title; in fact, what, in England, is called a gentle- man of blood and arms, in France, and elsewhere on the continent of Europe, is a nobleman. Lord Coke says : " At this day the surest rule is, ' nobiles sunt qui armagen- " tilitia antecessorum suorum proferre possunt.' There- " fore, they are called scutiferi, armigeri, &c. Where a " knight is degraded, one of his punishments is, quod cly- " pens suus gentilicius reversus erit, and here his arms be " reversed that beareth none." Nobility is not, therefore, confined to the peerage ; a man may be a peer of Parlia- ment, and in the language and consideration of the laws of arms and chivalry, not noble. Peers may have no right to bear arms, and consequently they are ennobled, in modern parlance only, by the royal grant of their peerage, not by the laws of chivalry, and although they may have a seat in the house of peers, they may not be gentil- hommes. That sitting in parliament does not necessarily GENERAL OBSERVATIONS. 11 ennoble the blood of those who possess the privilege, is proved by the lords spiritual, whose blood is not influenced by the operation, they, and their descendants, continue ple- beians if not noble before their introduction to that house, although unquestionably lords of parliament while bishops. Strictly speaking, a yeoman, or person not entitled to bear arms, is not even capable of receiving knighthood. For, Lord Coke says* " he ought to be a gentleman of " name and blood, claro loco natus, or else non debet." The arms of the knights formerly made by the king in England, and by the king's representative in Ireland, were carefully recorded, but of late years there are mi- serable blanks : many have been elevated to the dignity of Sir Knight, who, either had no pretensions to bear arms, or did not condescend to produce their evidences. Again, Lord Coke says ; "And great discord and " discontentment would arise within the realm, if yeo- " men and tradesmen should be called to the dignity " of knighthood, to take the place and precedency of the " ancient and noble gentry of the realm. And the eldest " son of a knight is an esquire, as his father ought to be, " before he is called to the dignity of knighthood." After a patient and careful examination of the lords' reports, the ancient statutes, and the records of both Eng- land and Ireland, the conclusion forced upon the under- standing is that previous to the reign of Henry the Third, although the sovereign occasionally called councils, and asked their advice, which he followed or not, at his plea- sure, there existed no deliberative legislative assembly in England; that the parliaments of the reign of that king 12 GENERAL OBSERVATIONS. were temporary revolutionary conventions, arising out of, and the natural consequences of civil wars and com- motions ; that their enactments were abrogated by the king after the battle of Evesham, and things returned to the status quo ante bellum. Edward the First, feeling he required the assistance of his people, and that his power would be thereby strengthened, first promulgated the principle, which he called the lex justissima, viz. where all were interested all should be consulted, summoned the first legislative assembly ever convened by legal autho- rity in England. When his turn was served he seemed to have forgotten the principle ; or, perhaps, he only con- sidered the emergency as one requiring and calling for extraordinary measures, and that the assembly he then called, was not to be considered as one of periodical con- voking, but only to be adopted on pressing national cala- mities or dangers : it appears certain, he acted as if he considered the summoning that assembly did not abrogate or diminish his own power and royal prerogative, or as establishing any thing like a free constitutional assem- bly, for legislative purposes, to be summoned at regular periods ; for we find him afterwards altering statutes, and enacting new laws of his own mere motion. His weak son and successor, soon fell into the power, and under the control of his ambitious and powerful barons, who usurped from him all the royal prerogative, as well the executive as the legislative, and nominated themselves sovereigns under the title of lords ordainers ; and arrogated also the character of representatives of the nation, but did every thing in the king's name, as if by his authority ; these proceedings produced civil wars, in GENERAL OBSERVATIONS. 13 which the king and the barons alternately prevailed, and in the fifteenth year of this reign, in order to settle the question of legislation, and define the royal prerogative, it was, for the first time, enacted, that the legislative au- thority should be in the king, with the advice and assent of the lords, spiritual and temporal, and commons, in parlia- ment assembled. This enactment was a compromise for mutual safety between the king and the barons ; the representatives of the landholders, the citizens and burgesses, were called into action, after the revolutionary example, set by Montfort, earl of Leicester, in the reign of Henry the Third ; this may be considered the first successful and effectual attempt, to settle a free constitutional govern- ment. The assembly was afterwards modified from time to time, until the reign of Henry the Fourth, about which time it obtained the division into two distinct houses, as it has since continued. Thus the parliament was the creature of political con- vulsion, and the result of a continuous struggle of near two centuries, between the kings and their barons. As it did not arise in any respect from feudal institutions, it is not possible that the titles or dignities consequent on feudality, can have any reference to that legislative assembly, and feudal or territorial honours, whether earl- doms or baronies, must have been totally distinct from, and altogether unconnected with sitting in parliament. But it will be said, that these feudal barons were liable to attend, and were fined for not attending the king's par- 14 GENERAL OBSERVATIONS. liaments. This is true, but here we have two distinct and different things called by the same name ; the aula regis, or king's high court of justice, was also called a parlia- ment, during the reign of Henry the Third, and the feudal barons were liable to attend that court of justice, of which they were (quasi jurors) suitors, or sectatores, and decided matters of fact by their votes. Mr. Reeves., in his able history of the law of England, vol. i. p. 84, explains the character of these sectatores, in a clear and satisfactory way, and shows the true meaning of the words pares curia?. " The earliest mention we find of any thing like a jury, " was in the reign of William the Conqueror, in a cause, " upon a question of land, where Gundolph, bishop of Ro- " Chester, was a party. The king had referred it to the " county, that is, to the sectatores, to determine in their " county court, as the course then was, according to the " Saxon establishment ; and the sectatores gave their opi- " nion of the matter. But Odo, bishop of Bayeux, who " presided at the hearing of the cause, not satisfied with " their determination, directed, that if they were still con- " fident that they spoke the truth, and persisted in the " same opinion, they should chuse twelve from among " themselves, who should confirm it upon their oaths. " It seems as if the bishop had here taken a step which " was not in the usual way of proceeding, but that he " ventured upon it in conformity with the practice of his " own country ; the general law of England, that a ju- " dicial inquiry concerning a fact should be collected, per " omnes comitatus probos homines. Thus it appears, that " in a cause where this same Odo was one party, and GENERAL OBSERVATIONS. 15 " archbishop Lanfranc the other,, the king directed totum " comitatum consider e^ that all men of the country, as " well French as English, (particularly the latter) that " were learned in the law and custom of the realm, should " be convened ; upon which they all met at Pinendena, " and then it was determined, ab omnibus illis probis, and ec agreed and adjudged a toto comitatu. In the reign of " William Rufus, in a cause between the monastery of " Croyland and Evan Talbois, in the county court, there " is no mention of a jury ; and so late as the reign of " Stephen, in a cause between the monks of Christ " Church, Canterbury, and Radulph Picot, it appears " from the acts of the court,* that it was determined per "judicium totius comitatus,^ " This trial by an indefinite number of sectatores or " suitors of court, continued for many years after the Con- " quest ; these are the persons meant by the terms pares " curia?, and judicium parium, so often found in writings " of this period. Successive attempts gradually intro- " duced jurors to the exclusion of the sectatores ; and a " variety of practice, no doubt, prevailed till the Norman " law was thoroughly established. It was not till the " reign of Henry II. that the trial by jury became gene- " ral, and by that time the king's itinerant courts, in " which there were no pares cur ice , had attracted so many " of the country causes, that the sectatores were rarely " called into action." The barons were the sectatores, and pares curice, of the aula regfs, or king's high court of justice, and certain of * Bib. Cott. Faust, A. 3, 11, 31. t Hickes Thes. Diss. Ep. 36. 16 GENERAL OBSERVATIONS. them were summoned to attend at the periodical meetings of that body at the usual terms ; any baron might attend, but those who had been summoned were liable to fine and amerciament, if they were absent ; thus barons often ap- pear to have taken part in the acts of the king's baronial court, whose names do not appear on the list of those sum- moned, and some of those whose names appear on the list summoned, are not affixed to certain letters written by the barons present. Jl certain number was necessary to con- stitute the plenum parliamentum, or full court, without which, no business could be done. In France, four was the minimum. After the establishment of a legislative parliament, this high court was united to it, and for some time continued its operations under the name of the high court of par- liament, and pleas and suits of original jurisdiction were entertained, heard, and decided with all the regularity of the legal terms of modern times ; and, it would appear, that one of the last modifications was limiting the judi- cial character of the parliament to appellant jurisdiction ; the greater number, but not all, the rich and powerful magnates and proceres of the nation, were the prelates, earls, and barons, who were sectatores in the king's former high court, and as such, if summoned, still bound to at- tend the parliament, to which the judicial character and power of the king's court had thus been united; and, in their newly-settled constitution, Edward I. and II. naturally summoned the most influential of them among the peers, and thus the feudal baron and the peer in a few genera- tions were considered the same, because they were called by the same name. GENERAL OBSERVATIONS. 17 Braoton lays it down as law, that the king was in his time, the maker and interpreter of the laws ; his words are " Si dictio aliqua duos contineat intellectus domini " regis erit expectanda interpretatio et voluntas, cum ejus " sit interpretari cujus est condere" From such authority so plain a dictum should be conclusive j he was a judge itinerant in the twenty-ninth year of Henry III. The fiction that the king is the sole enacting power, has ever been kept up, even after he ceased to be the real only legislator all bills for new laws or enactments were in the nature of petitions, " prayen the commons," or, for a private bill, on the petition of an individual and now are, " May it) therefore, be enacted by the king's most ex- " cellent majesty" to which, however, are added the im- portant words, "by and with the advice and consent of the " lords, spiritual and temporal, and commons." That a correct judgment and conclusion may be ob- tained, as to the nature of the dignity of a peer, it is expedient to investigate, not only the constitution of the government of England, from the Norman conquest to that period when the parliament of England assumed its present form, but also the institutions of the French, Anglo-Saxons, and Normans ; for the feudal system which obtained in England after the Conquest, was a melange from the three systems, which, although they differed in many respects, yet were very nearly allied to each other. The French nobles were more independent, and possessed more authority in their fiefs, than the Normans and Saxons j they had the power of making war with each other, or even with their sovereign, if justice wer* de- layed of coining money of administering justice, and 18 GENERAL OBSERVATIONS. the patronage of churches. They were little short of sovereign princes, over whom the sovereign, or lord para- mount, possessed but the authority as the federal head of the whole state ; such were the dukes of Bretagne, Ac- quitain, Lorrain, Burgundy, Normandy, and many others, some of whom were more powerful than the king himself. To the king they, indeed, did homage, but they often bearded him in his capital, and sometimes laid violent hands on his person. Previously, therefore, to entering into the examination of the English feudal institutions and parliaments, it is proposed to take a brief review of those of France, from which the Normans and Saxons, no doubt, borrowed their feudal customs. Normandy, which was but a fief of France, and owed homage and fealty to the sovereign of that state, was separated so late as A. D. 912, by Charles the Simple ; it was, however, an independent state, its dependance, in every important feature, being merely nominal. Its vassals had not the same extensive rights as those of France, although they bore the names of counts and barons; they could not appear in arms but under the commission of the duke, and in other respects their powers were more limited. This arose from the policy of the dukes, who, to protect and support their own powers, so modified the feudal law. The Norman nobles were the subinfeudalions of a vassal, but, although they did not hold of a sovereign, in all minor matters, they possessed similar powers with the barons of France. This course has been adopted, because the feudality of France was more unmixed than that of England, and GENERAL OBSERVATIONS. 19 would afford more clear and succinct ideas of the true character of the system, and enable the reader to un- derstand the subject better by putting him in posses- sion of first principles. It is a remarkable fact, that the institution of the states-general of France, was nearly contemporaneous with the establishment of legislative parliaments in England. In the former country the name of parliament was confined to the courts of justice; in England they united the legislative to the judicial au- thority, and continued the name of parliament to the newly instituted legislative assembly, which differed little, in other respects, from the states-general of France. Next will be considered the feudality of the Saxons, and the institutions introduced by the Conqueror, and con- tinued by his seven immediate successors, with a brief re- view of the councils, assemblies, and legislative events of the succeeding reigns, the reports of the Lords' Commit- tees, on the nature of the dignity of a peer of the realm, an account of the introduction of the English law into Ireland, and of the parliaments of that country, and those of Scotland. Such is the general plan which, after much consideration, appeared the most adviseable and satisfactory to be adopt- ed in this essay. c 2 20 THE ANCIENT COUNCILS, PARLIAMENTS, CHAPTER II. THE ANCIENT COUNCILS, PARLIAMENTS, PEERS, AND NOBLES OP FRANCE. THE history of the parliaments and councils of France, elucidates, by analogy, the history and nature of those of England. The customs and laws of the two coun- tries were very similar, and more analogous than is ge- nerally imagined. The ancient constitution of both were of the same genus, but the difference of locality, pro- duced a slight variety in the plant. Boulanvilliers, in his history of the ancient parliaments of France, imagined that in the time of Charlemagne, a free legislative assembly enacted laws, and provided for the necessities of the nation, which succeeding kings gra- dually encroached upon, and eventually entirely sup- pressed. There is much fancy and romance in the idea; this able and intelligent writer draws largely on his ima- gination, for the history of the assemblies of those early days, having few materials either in record or history. He says, " we have not remaining" any law or ordinance, PEERS, AND NOBLES OF FRANCE. 21 " of the first times of our monarchy, that does not wear " the marks of the consent of the general assembly of the " Champs de Mars ou de Mai, in which it passed." The early French parliaments or councils, appear to have been composed solely of those greater lords, or rather vassal princes, who held immediately of the crown, and bore afterwards the titles of peers of France, and were not a legislative, but a judicial body. Speaking of the parliaments held previous to the reign of Hugh Capet, he says " But, in fact, these parliaments are very different from " those described in my former letter. In the first place, " in regard of the representatives, Germany, Saxony, " Bavaria, Lorrain, Brabant, Friseland, the Burgundies, " Dauphine, Provence, Italy, the marches of Spain, being " no longer members of the monarchy ; besides that, " France being itself divided into an infinite number of " particular sovereignties, the direct vassals of those who " had possession of them were no more looked upon as " members of the French state, nor consequently were " they qualified to enter into the parliament. It was for " this reason that the count of Chartres and Blois, was " excluded from the parliament of 964, because he was ef not an immediate subject of the crown f* and that hold- " ing his patent of a particular lord, though vested with " a title of France, he was obliged by his oath to other " interests than those of the king." p. 89, i. * He held of the duke of France and count of Paris. ft 22 THE ANCIENT COUNCILS, PARLIAMENTS, Mezeray has laid it down as a principle, that, during the first ten monarchs, the French government should be con- sidered as a great fief or feudal community, of which the king was chief, or lord paramount, but under certain conditions, the principal of which was, that he owed pro- tection to every one. In that condition, far from ex- cluding the princes and lords, possessed of fiefs, from the conduct of public affairs, the king had no right alone to dispose of them, or even to undertake a general war, that is a war on account of the whole federal body, without their consent, though he had power to make one by him- self, in his character as a separate prince, but his vassals were under no obligation to serve him in such a war; whereas, they were, by an exact fidelity, bound to serve him in military service, as well as in councils, when they were all equally interested. The constitution of the German Roman empire was an excellent example of a feudal sovereignty, each member was bound to render their quotient of men and money for general defence, while each possessed, in other respects, sovereign power in their separate states, Charlemagne having taken the idea from the example of the people of the North and the Lombards, introduced the feudal system into all his territories, and thus the term vassal is made use of in all charters and ordinances, to express a man engaged in the service of another by the possession of lands. The first example of feudality I find mentioned in his- tory, was in the year 584, when the Lombards who had PEERS, AND NOBLES OF FRANCE. 23 been governed by thirty-two dukes, chose a king, and obliged the dukes to acknowledge and swear allegiance to him, and to furnish him with a certain number of troops, for the defence of the nation. Normandy was granted in 912, by Charles the Simple, under the name of a fief; the duchy of Prance and county of Paris, were the patrimony of Hugh Capet, and those dukes made subordinate infeoffments of parcels of the great fiefs which they held of the king, but these lords of subinfeudation were not considered vassals of the crown, but particular subjects of their dukes, to whom they en- gaged their fealty and homage. Such for example, were Thibaud le Trichard, count of Chartres, Tours, and Blois ; Ingelger, first lord of Gatinois, afterwards count of Anjou, and many others. Nor did infeoffments stop there, the second produced thirds, and those fourths and fifths, and so on.* M. Le Fevre Chantereau, says, that feod signifies pos- session for pay, for which there is no fief below that of a haubert, or full arms, whose proprietor was obliged to knights' service in complete armour. This in England was called a knight's fee. Louis le Debonaire, established in his duchy of Aquitain, during his father's life time, besides many counts and abbots, who were lords of the hautetage, (or first rank) subordinate dignities with the title of vassi, dignities, similar to those in England called valvasores, which were afterwards called castel- lains in France; these were dependant on more noble fiefs, which always had many castellains. Above the * Boulanvilliers. 24 THE ANCIENT COUNCILS, PARLIAMENTS, counties were duchies, but they were few in number, in the reign of Charles the Bald, there were but those of France, Aquitain and Septimania, Lombardy and Lor- rain. Normandy was afterwards dismembered from that of France. Thus over all was the king, or the lord paramount, but not to the subinfeudations, the duke being lord of the count, and the count of the castellain, or vavasour, and he of the possessor of a simple knight's fee. It appears, therefore, that the king, or lord paramount, had no jurisdiction in the territories of their great fiefs, and could do no more than, as the federal head of the whole community, call for their services, on occasions of foreign aggression, and not on any matters of internal regulation or government, in which the vassal duke was as much sovereign as the king himself, in his own par- ticular territories, and they were, therefore, styled pairs de France, and were, indeed, the king's equals, really and emphatically, saving his suzerainty. The original noblesse of France was confined to the descendants of the Franks^ all the rest of the inhabitants were serfs or slaves, in England called villeins, and in France, in after ages, roturiers. Louis le Gros, began enfranchisement by granting charters of liberties and customs to the great towns, with the remission of tallies, or taxes, at will, and that of mart taille, (or heriots) by which the lord consented that children should succeed their father in land or goods, and also the right of fixing their abode where they pleased. PEERS, AND NOBLES OF FRANCE. 25 The most ancient instance of this law is fixed to the mid- dle of the eleventh century. Baldwin, earl of Flanders, the earls of Hainault, and the lords of Liege, Avesnes, Lisle, Doway, Rhetelois, and Poix, granted like privileges to their subjects. Louis Hutin, issued orders for the manumission of all the serfs of the kingdom, and Henry the Third granted letters for general enfranchisement, but they were opposed by D'Aumont, count of Chateau Roux, and other lords, and so failed in their object ; these lords considered the decree an infringement of their rights. Previous to this period, nobility was considered in France an incommunicable quality inherent in the blood, and the idea that the king was the fountain of honour, and could communicate nobility, by grant, was not con- sidered law ; but shortly afterwards a great change arose out of the enfranchisement of the cities and towns, and the consequent acquisition of riches by plebeian families, namely, the practice of the king ennobling by patent. The first instance of the exercise of this right was by Philip the Third, who granted patents of nobility to one Raoul, a goldsmith, in 1271., which is supposed to be the only instance in that king's reign. In 1281, during the reign of Philip the Fourth, there was an arret, or decree of parliament, declaring the king's right on that point, and six or seven patents were issued by that king. Each succeeding monarch followed these examples, and Boulan- villiers says, "by such methods, above 40,000 families, " most of whom sprung from servitude, have acquired " honours and rights, formerly solely reserved for the " conqxierors of Gaul, so that, without attention to facts 26 THE ANCIENT COUNCILS, PARLIAMENTS, " and history, it is now an established maxim, ' that all " mankind being born under the condition of servitude, " there is no distinction among men, but of having sooner " or later got out of it.' " Hugh Capet, who was duke of France and count of Paris, at his accession to the throne, became lord para- mount of the two description of fiefs, as king and as duke of France, some holding of him, as of the crown, and others, as of his duchy. The latter were more numerous, the former the more considerable in dignity and import- ance. The duchy itself, as a pairy of France, being held of the crown, became merged in his royal dignity, and es- cheated to the crown, as in England, where the nature of the holding, or tenure, would not have been changed by the escheat, but " the policy of Hugh Capet (says Bou- " lanvilliers) and his posterity, was to place the tenants " of both on the same level, not by raising the vassals of " the duchy to the condition of those of the crown, but " by bringing down the latter to equality with the former. " This is what introduced the term of barony, to dis- " tinguish a great fief, holding of the king, without dis- " tinction, title, or homage." It may be doubted that this is a correct view of the case, the barons of any seignory were the peers thereof, and although the kings of France might make, after the duchy merged in the crown, those who held as of the crown, and those who held as of their castle of the Louvre, the caput of the duchy of Paris, equal in point of rights, the term barony certainly existed long before this period. It might be more properly said, that the king confounded PEEUS, AND NOBLES OF FRANCE. 27 the greater fiefs with the barons of his duchy ; this, how- ever, did not fully obtain until the establishment of the states-general, which was, in fact, a new legislative con- stitution, differing in its constituent parts from the ancient courts of peers, which were purely judicial. Again, he says, " if I am asked, what were the real " and undisputed rights of lands possessed in barony ? I ' " :. -i ',- " On the whole, the government of William seems to " have been, in a great degree, a military government, " such as must generally take place upon a conquest, ' f when the conquered do not submit quietly to the con- WILLIAM RUFUS HENRY I. 53 " queror ; and, till towards the close of his reign, he can " scarcely be said ever to have reigned in peace, even the " foreigners whom he had established in England, fre- " quently conspiring against him. It is not y therefore, in " his reign that there can be much hope of discovering " clear traces of a constitutional government. " The government of William Rufus, the son and suc- ' ' cessor of the Conqueror, seems to have been, in the end, " more arbitrary and oppressive than that of his father, " and the Committee have found no document from " which they can infer any thing important, with respect " to the constitution of the legislative assemblies in his " reign." Thus in the reign of the two first sovereigns of the Norman race, their lordships found no trace of a legisla- tive assembly; on the contrary, they have almost demon- strated that no such assembly could have existed during that period, " Henry the First, obtained the throne, as his brother " William had done, in exclusion of his elder brother " Robert, and seems to have endeavoured to give vali- " dity to his title, by what may be deemed a legislative f the Virgin, 6 Edward III. to consult on the affairs of Ireland, and on the second day thereof it is stated, that the prelates, by themselves, the earls and barons, and -autres granlz, by themselves, and the knights of the coun- ties by themselves, and without the citizens and bur- gesses, proceeded to grant the king an aid : " For that '" the king could not do the things proposed without the e< aid of his people, therefore, the prelates, earls, barons, *' et autres grauntz, and the knights of the counties et " tote le commune, granted to the king the fifteenth penny " to be levied of the communalte, and the tenth penny " to be levied of the cities and boroughs and demesnes ; (C and the king (at the request of the said prelates, earls, " and barons, and knights of counties, in easement of his " people) granted that the commissions which had been " lately issued to assess talliage in the cities, burghs, and " demesnes, throughout England, should be repealed; and " that in all. time to come, such talliage should not be as- " sessed, but as it had been- done in the time of his ances- " tors, and as it ought to be by reason." 150 EDWARD lit. The commissions here alluded to, are on the patent roll of 6 Edward III. whereby the king appointed commis- sioners to assess his talliage in the cities, boroughs, and demesnes, of the king separately "per capita," or in com- mon, as should appear best for the profit of the king. The king's right to assess the talliage was not at this time questioned, which clearly shows the imperfect state of the legislative parliament at this period, and shows its gradual progress. The cities and boroughs here, apparently wished to tax themselves a larger sum to the king, than he would receive by the old and vexatious system of tal- liage, and thus by compromise, the king's right to tax at his will was eventually done away. It is also observable, that the parliament at York, the 3d of this year, the bishops and clergy acted by themselves, the peers by themselves, and the knights and commons by themselves. But frequently the knights acted separately from the citizens and burgesses, who were little regarded, unless when an aid was required. " The parliament, " therefore, had not yet completely assumed its present " form ; the lords and commons were not yet considered " as two houses perfectly distinct, and acting separately, " and on perfect equality in their different functions; the " knights of the shires appear to have been treated as a " higher order, than the representatives of cities and " boroughs, and on this, as on other occasions, the par- " liament continued after the knights, citizens, and bur- *' gesses, had been dismissed."* Fint Report, 307. EDWARD IH. 151 In the thirteenth year of Edward III. the king, for the time, signified to the commons the cause of the meet- ing of parliament, which shows a further increase of con- sequence., and it was agreed to assist the king with a con- siderable grant of money. The grauntz gave an answer in writing, in which they gave the king the tenth sheaf of corn of every kind of their demesne lands, except from the lands of their bondsmen, the tenth fleece and the tenth lamb of the next year, but they stipulated that the old tax (maltolt) on wool and other demands, should not be levied in future. The commons gave their answer in writing, that they -must consult their constituents, and requested another parliament to be summoned, but in the mean time they would do their utmost to obtain the king a proper aid. At a second parliament held this year, the commons offered 30,000 sacks of wool to the king, on certain con- ditions, which, if refused, they would give no aid; but the earls and barons granted for themselves, and for their peers of the land, who held by barony? the tenth sheaf, fleece, and lamb of their demesnes. " What was meant " by the words, who held by barony, and whether it was " intended to distinguish any part of the peers from the " rest, or to imply that all the peers held by barony, may The committee conceive that they have fully shown, " That many dignities supposed to have been long extinct, " ought, according to modern rules, to be deemed to have " descended to sole female heirs j that others ought to be *' considered as having descended to coheirs, and still rest- 188 MODERN PEERS. " ing in abeyance, capable at any distance of time, of " being called out of abeyance by the power of the crown, '" though they have long been considered as utterly ex- " tinct and gone, and the crown has, on the supposition " of the extinction of such dignities, granted new dig- " nities by the same name to others, which must be deemed " to have been in derogation of the rule asserted in Sir " cuntur barones, 1 but he uses no expression importing " the origin of their dignities; and though he attributes " to them power under the king, he does not attribute to " them a name of dignity, derived from any ceremony, as " he does with respect to the earls. " Of vavasors," he says, " sunt et alii qui dicuntur va- " vasores viri magna? dignitatis." " Of knights," he says, " sunt et sub rege milites ad <( militiam exercendam electi ut cum rege et supradictis * There seems little ground for doubting that all those who were deemed the king's barons, in the sense in which the four earls above named were so styled, were persons holding lands immediately of the king, as of his crown, and that their appellation of baron was in some sense a name of dignity connected with the tenure of land. ft, 190 VAVASORS. " militent et defendant patriam et populum dei." He speaks, therefore, of knighthood as a mere dignity, con- nected with the military character of those on whom it was bestowed. " He then adds, ' sunt etiam sub rege liberi homines et " servi ejus potestati subjecti.' " " A vavasor has been considered as a person holding " land by subinfeudation, and the laws of Henry the M First has been used, as authority, for the assertion. " According to those laws, if a question of boundary arose " between the king's barons, (which word baron here ex- " tends to all the king's tenants in chief) the question " was to be decided in the king's court ; but if the dispute " was between the vavasors of two lords, it was to be de- " cided in the county court ; hence Selden concludes, that " the appellation of vavasor, was properly applicable to a " tenant by subinfeudation, and was feudal only, not " honorary. But it can scarcely be supposed that Brac- " ton used the word as applicable only to tenants by sub- " infeu elation, as he afterwards uses the words, 'magnates " $ive vavasorei,"* and calls them ' viri magnce dignitatis^' " and ranks them next to barons, and before knights. " In another part of the same treatise, he says, that a " husband cannot endow a wife of a manor, ' si sit caput " baronue,' if he has other manors which are not ' capita * Geffery de Geneville, styles the barons of his palatine lordship of Meath. magnates met Midice, which is perhaps an unusual appli- cation of the word magnates, but still it shows Selden's interpretation of the word to have been correct, for these magnates were tenants by subinfeudation, and yet were styled barons. VAVASORS. ^ 191 " baroniai,' and adds, ' quod dicitur de baronia, non est " observandum in vavasor ia vel aliis minoribus feodis " quant baronia, quia caput non habent sicut baronia, et " quod dicitur de baronia et barone servari debet in comi- " tatu et comite' From this passage it rather seems that " he did not include in the word baro, every tenant in " chief of the crown, but only such as held a barony, and " that he considered all other freehold tenures, whether " immediately of the crown, or by sub-infeudation, as va- " vasories or other minor fees." " It seems, therefore, that Bracton meant by the word " vavasores, persons of a certain degree of dignity, not " equal to that of baron, but superior to others, the supe- " riority being not properly personal, but arising out of " the extent or value of their lands, however held." It is probable that the word vavasor may have also meant what we call a lord of a manor held by sub-infeu- dation, having courts leet and barons, but not cognizance of higher criminal pleas, as infangthef, outfangthef, &c. &c. or criminal jurisdiction, or, as Bracton has it, " poten- " tes sub rege." " Bracton was written before the house of commons " existed, and before tenants in chief of the crown, were " disabled from alienation, without licence from the " crown." " From the book called the Dialogue of the Exchequer, " it appears that earls were created by the king, either " hereditary or personally at his pleasure." 192 MODERN PEERS. Littleton (who lived in the reign of Henry IV.) in h)'s treatise on tenures, does not mention tenure by barony, although he speaks of tenure by knighfs service, and by grand serjeantry. If tenure by barony had, when he wrote, been considered as a tenure, giving those who then held by such tenure the powers and rank of a peer of the realm, it can scarcely be imagined, he would have omitted to notice a tenure, to which so much importance must have been attributed, when the crown granted that dignity as a matter of high grace and favour. He says, tenure by homage^ fealty, and escuage, is tenure by knight's service. Tenure by grand serjeantry by some special service done to the king, but he does not mention the service of attend- ing the king in his council^ or in a common council of the realm, as a service of grand serjeantry, or as any service due in respect of the tenure of land. The ancient commentary on the law of England, called " Fleta," speaks of tenure by grand serjeantry, in similar language with Littleton. In speaking " de feodo militari, vel magnce serjeantits" says, " quce sibi cequipollens," attributing no superior dignity to grand serjeantry. It may also be observed, that notwithstanding the pro- viso in the act, taking away the court of wards and liveries and tenures, in capite, by knight's service, (12 Car.II.c.24) " That that act should not infringe or hurt any title of " honour, feudal or other, by which any person had, or " might have right to sit in the lords house of parliament, " and the privilege belonging to them as peers," was framed by those who, a very short time after, advised the crown in the decision of the case of Fitzwalter, were of MODERN PEERS. 193 opinion that, " baronies by tenure were not then in being, " and did not then give a right to a writ of summons to "parliament." The appellation of barony in the charters of John, and Henry the Third, was applied to certain lands, held im- mediately of the crown, in the possession of the earls, as well as those in the possession of barons, and the relief paid by the former, was for his barony of an earl, although he paid a higher sum than was paid by a baron. The statement in the report of the Lords Committees of the 12th of June, 1819, seems to shew " That it was " highly probable, that all tenants in chief of the crown, " as of the crown, by military tenure, whether dts- " tinguished by names of dignity or not, or whether " holding by barony or not, were in the reign of John, " equally entitled to be summoned for the particular "purposes mentioned in that charter," viz. "for assess- " ing extraordinary aids to the crown, and for scut age." " It seems to follow, that the constitution of the legislative " assembly of the realm, for other purposes, was not con- ft sidered as an object of equal moment ; and it is not im- " probable, judging from many documents, that legislative " authority was generally assumed by the crown, with the ' ' advice of a council of a more limited description, in cases te not tending to irttpose charges on the subject." " It was not till the time that the lords spiritual and " temporal, and the representatives of counties, cities, " and boroughs, formed two distinct houses of parliament, " that any document has been found describing persons as o 194 MODERN PEER?. " PEERS or LORDS of parliament. At that time the " greater number of the tenants in chief of the crown, " were so far from claiming writs of summons as peers, " that many of them served as representatives in the " commons. " It is also clear, that the very ancient peerages of Ros, " Clifford, Despencer, and Fitzwalter, must now be con- " sidered as dignities merely personal, derived from writs " of summons to parliament, and from such writs only, " whatever may have been the origin of the titles of the " persons who first sat in parliament under those writs ; " and all claims of those dignities in future, must be "founded on a prescription merely personal, derived from " the first writ appearing on record, to have been issued " to the ancestor of the claimant, whose heir, according " to that record, the claimant must be. " This is most clearly illustrated by the decision on the " peerage of Fitzwalter, in which case the king in coun- " cil was advised. " That whatever pretence there might be for presuming " that there were originally baronies by tenure, yet that " baronies by tenure had been discontinued for many " years, and were then not in being, and so not fit to be " revived, or to admit any pretence of right of succes- " sion thereupon; and that the pretence of a barony by " tenure was, therefore, not to be insisted on."* * In this dictum it is evident, that the judges understood barony and peerage to mean the same thing, but had they considered the MODERN PEERS. 195 The claimant was heir of Robert Fitzwalter, general of the barons, who compelled king John to sign his great charter, and undoubtedly one of the bar ones majores, within the meaning of that charter. But the claimant could show no writ of summons to parliament, of any of his ancestors, before the reign of Edward the First, and he took his seat, and was placed as the junior baron of that reign, saving his right. He was, therefore, ranked as a baron by writ. The dignities of Ros and Despencer, are now held under the writs issued, 49 Henry III. which have been, and are considered to have given personal and hereditary dignities, or were evidence that those persons were en- titled to such dignities, which fact may warrant a con- clusion, that the 49th of Henry III. barons no longer sat in parliament as barons by tenure, but were summoned according to the discretionary power of the crown, or those by whom that power were then held, and all other tenants of the crown, whether holding by barony or not, were considered as represented by the knights who were elected by the several counties. " The right of the crown to require personal aid and " counsel, was a burden which extended to all subjects " indiscriminately, except that the clergy claimed an " exemption from those burdens incident to their sacred " character." But the clergy who held lands by military tenure, or by barony, were bound to perform the same true meaning of the former word, they would have said that peer- ages by tenure never existed, rather than that baronies by tenure had been discontinued. o 2 196 MODERN PEERS. services which laymen holding the same lands would have been bound to perform. Some who held by ba- rony, claimed to be exempted from the duty of attend- ing the king's parliament by custom, alleging that their predecessors had never performed that duty, and that, therefore, they had a prescriptive right to be relieved from it. " The right of the crown to the personal aid and coun- " sel of all its subjects, still remains, as it must always " have been, in the discretion of the crown to require it " or not, unless, as is the case of the peers, an individual " had received, by himself or his ancestors, a right to re- " quire the crown to receive his aid and counsel. This " right also belongs to the archbishops and bishops, in " right of their temporal possessions, of which they must " receive investiture before their right accrues. The " archbishops and bishops, may still be deemed lords of " parliament by tenure;* but they are not esteemed peers " of the realm, which is now considered as a dignity en- " nobling the blood of the holder, and an indelible cha- " racter in the person to whom it belongs, unless lost by " forfeiture, or taken away by act of the legislature." * It would, perhaps, be more correct to say, that on the establish- ment of legislative parliaments, it was considered expedient, that the church should be represented, and, therefore, the archbishops and bishops were summoned thereto, than that they were lords of parliament by tenure; many, if not all of them, held by barony, and, therefore, were bound to attend the king's ancient council, or aula regis, and were, therefore, persons of high distinction and influence. They had baronial jurisdiction in their liberties, and were con- sidered barons, but scarcely lords of parliament by tenure. See pott, pp. 205-6. MODERN PEERS. 197 " By the charters of the Conqueror, Henry I. Stephen, " Henry II. and John, the tenants of the crown by mill- " tary service, were exempted from any charge beyond the " stipulated services of their tenures, without their consent. " If, therefore, the king required from them an extraor- " dinary aid or service, their consent was necessary to le- " galize the assessment, and for the purpose of obtaining " such consent, a general assembly of such tenants must " have been necessary." " The committee have discovered no ground for sup- " posing that the dignity of a peer of the realm, as now " understood, was ever considered as belonging to all the fe persons who held in chief of the king, as of his crown " by military service. And they have found no trace of " the application of that tenure to all such tenants, or to " any person previous to the time when the legislative as- " semblies of the country were composed of two distinct " bodies, having separate and distinct characters, rights, " and privileges. The dignity of peerage, therefore, as ' now understood, seems to have a character distinct from " any thing, which existed before the appearance of all " the commons of England in parliament, by elected re- " presentatives ; and what may have warranted a demand " of a special writ of summons to an assembly of all the " military tenants of the crown, convened for the purpose " of imposing the burthens specified in the charter of " king John, may not be considered as necessarily war- " ranting a demand of a writ of summons to the general " legislative assemblies of the realm, as those assemblies " are now constituted, when the effect of the writ would " be to place the person so summoned in a distinct house 198 3IODERN PEERS. " of parliament, amongst a distinct order of men, and to " make him a member of a distinct estate of the realm, " having peculiar personal character, rights, and privileges, " and constituting him a peer of the realm and a lord of " parliament. This seems to have been the view which " the privy council of Charles the Second, had of the t: subject, when they declared, ' that whatever pretence " there might be for presuming that there were originally " baronies by tenure, such baronies had been discontinued for ages, and were then not in being; 1 meaning evi- " dently to refer to the dignity of a baron as then enjoyed " by peers of the realm, which was the dignity then (t claimed." " The charters of John, Henry III. and Edward the " First, demonstrate, that the constitution underwent a " great change between the accession of Henry the Third, " and the end of the reign of Edward the First. For the " charter of the latter, though professedly copied from that (< of 9 Henry III. differs in language and import, from " all the charters of Henry, omitting, however, as the " charters of Henry had before done, the special clause " in the charter of John, for the convention of a great " council for assessing aid and scutage. When the char- " ter of Edward the First was obtained, that clause would " have been inconsistent with the constitution of the legis- " lative assemblies of the realm then clearly established, " and its insertion would have been rejected as a gross " attempt to violate the established constitution of the go- " vernment of the realm. ff From documents after stated, (in the Report) it ap, MODERN PEERS. 199 " pears that distinction was made between lands consti- " tuting a barony, and lands holden per baroniam, and ' ' that a barony might owe the service of only two knight's "fees." From the language of the charter of John, it may be conjectured, that those who held baronies, and perhaps those who held by barony, though they have not entire baronies, were intended to be distinguished in that charter by the appellation of " majores barones," and from this it may be implied that the other immediate te- nants of the crown by military service, might also be deemed barons, though " barones minores." But if those who held baronies, or by barony, were alone suitors to the king's great court, it is evident from the charter of John, that the king's great court had no power, as such, to grant extraordinary aids to the crown ; that charter re- quiring other tenants in chief to be summoned for that purpose, to form the " commune concilium," by which such aid might be granted. " Whatever the distinctions may have originally been " between lands holden as a barony, or by barony, and " lands holden immediately of the crown by knight's ser- " vice simply, those distinctions seem to have been, in " some degree, unfounded or misunderstood in the reigns " of Edward the First and his immediate successors, and " were then, apparently, little considered, except for the " purpose of assessing reliefs on succession to baronies and " parts of baronies, and for the purpose of settling fines, " by way of amerciament, on persons holding by barony. " This fact seems to afford a strong ground for presuming " that holding by barony, did not in the reign of Edward " the First, entitle the person holding by such tenure, to 200 MODERN PEERS. " demand as a right, a writ of summons to parliament as ft a baron ; and that all the persons summoned in the reign " of Edward I. were summoned by favour of the crown, " or in consequence of a prescriptive personal right gained < c by usage." " Majores barones in the charter of John, meant merely " the most considerable of the barons." " Some of the lands called baronies were held as of an " escheat." The earliest record of summons to parliament, 49 Henry III. only eighteen laymen were summoned. Their history is traced in the report; but it is not necessary here to re- peat it. " From this statement, it seems highly probable, that " no great regard was paid to tenure, in the selection of the "persons to whom writs of summons were then issued." The descendants of some were never summoned to parlia- ment, or not till after an interval of many years, and the only dignities now enjoyed under these writs of summons, are enjoyed as personal dignities, by the descendants of Le Despencer and Ros. The proceedings which produced the restoration of the dignity of Le Despencer in the first year of James the First, demonstrate, that there was little adherence to principle in those proceedings, of which the result seems to have been a sort of compromise between the contending parties. When the lords proposed to leave to the king MODERN PEERS. 201 the choice to which of those parties the dignity of Ber- gavenny should be given, they must have considered both dignities personal, and when they put it to the vote to which the title of Bergavenny should be given, they must have considered that dignity personal, for otherwise, it could not belong to lady Mary Fane, who had not the ter- ritory of Bergavenny , which was enjoyed, under an en- tail, by her opponent. When they proceeded to determine the precedency of the two dignities, and decided in favour of Le Despencer, they must have also considered both dignities as personal, for if the territory of Bergavenny, gave the dignity of baron to its possessor, it was un- doubtedly a dignity more ancient than the 49th of Henry III. at which time the personal dignity of Le Despencer is supposed to have originated, according to the terms of the instrument by which the king granted that dignity, by way of restoration to lady Mary Fane. " The whole proceedings in these cases must have been " founded rather on conveniency than principle." " But the proceedings in the several cases of Ros, Le " Despencer, and Bergavenny, show, that in the reign of " James the First, either party, or interest, or the favour '* of the crown, prevented the decision of the rights then " in question, on consistent principles." " In the reign of Edward the First, and his successors, " many persons, whose lands have been described in dif- " ferent documents as baronies, or held by barony, were " not summoned to parliament, as far as appears from any " documents now existing j and many were summoned. 202 MODERN PEERS. " who, as far as the committee have discovered, had not " any barony , or part of a barony" The committee seem to consider from the words in the black and red books of the Exchequer, and of Testa de Nevill, that the words honour, barony ', and fee, or feoda, were synonymous terms. Hastings is sometimes called an honour, sometimes a barony, and in Domesday it is de- scribed by the word castellaria. Alberic de Vere, describes his property as " Baronia Comitis Alberici," though he was certainly earl of Oxfordshire by the charter of Henry the Second. Simon de St. Liz, makes his return as " Comes Simon," although he was earl of Northampton. Hugh Bigod, earl of Norfolk, styles himself " Comes Hugh Bigod." The earl of Clare makes his return merely in the words " Carla de Honore Clar" Baronies were not held by a certain number of knight's fees, many baronies were held by one knight's fee. It is " evident from what is said in Testa de Nevil, re- " specting the baronies of Northumberland, that lands " may be holden as a barony, by a service which was not " the service of a knight's fee, or of any portion of a " knight's fee, though the service may have been con- " sidered as a military service. It is also evident, that " many lands in that county were holden as baronies, " which did only the service of one knight's fee, and that " lands were holden ' in baronia,' by the third, the sixth, " and even the twelfth part of a knighfs fee. What was " the meaning of thus holding ' in baronia,' the committee " are unable to state, unless it meant that the tenure was " in chief of the king by military service, and if such was MODERN PEERS. 203 " the meaning, these entries may serve to interpret the " charter of John, and to import, that all persons who held " in chief of the king by military service, were deemed to te hold i in baronia,' and the return of Godfrey Baiard, " in the black book of the Exchequer, tends to con- (c firm this supposition, though a barony seems to have " been generally understood to have been a property, " having a l capuf or ' head,' to which feudatories owed " service." " Edward I. did not summon to parliament, all who " held baronies in Northumberland, but used a discre- " tionary power, but generally summoned the principal " barons of the county." ** After partition made, it has been said, that the coheir, " being a male, to whom the ' caput baronia?,' was awarded *' on partition, was entitled to be summoned in respect of " the whole barony, by reason of the possession of the " ' caput baroniee,' but it is evident, that males having the ft caput baronice, were frequently not summoned." " The irregularities in issuing writs of summons to par- " liament, can scarcely be accounted for, except by the " supposition, that after the reign of Henry the Third, " tenure by barony was disregarded in the issue of these " writs. Persons stimmoned to one, or more than one par- " liament, were frequently not summoned to the succeeding "parliament, and the descendants of persons who had " been summoned to parliament, were never summoned, " or not till after a long interval of time. It is evident, " that the crown, rightfully or wrongfully exercised a dis- 204 MODERN PEERS. " cretionary power, in summoning some persons to parlia- " ment who held lands by barony, and omitting others " during, and after, the reign of Edward the First, and " of omitting to summons some persons to parliament, " whose ancestors had been summoned to prior parliaments " in the reigns of Edwards I. II. and III. and also as- " sumed, and their successors have retained the power of " summoning to parliament persons who did not hold any " barony, head of a barony, or even part of a barony. " Thus persons were created by writ, even the ancient " baronies of Le Despencer, Ros, and others, being now " considered as created by writ, whether the ancestors of " those now enjoying the dignities were originally sum- " moned by reason of tenure or not, being a question " wholly disregarded." " A right to be summoned to parliament by reason of " tenure, of any land denominated at any time a barony, " does not appear by any document which the committee " have discovered, to have been asserted in the reign of " Edward the First, or any of his successors, till the claim " made by Edward Nevill, to be summoned to parliament " by writ, in respect of his possession of the barony of " Bergavenny, in the reign of king James the First." The claim to the earldom of Arundel, by prescription as immemorially annexed to the castle and honour of Jlrundel, and the patent granted to lord Lisle, on a claim similar to that of Arundel,were both founded on groundless assertions and premises. And in the reign of Henry the Sixth, many persons were possessed of lands denominated baro- nies, without any claims on their parts to be summoned to parliament as barons. MODERN PEERS. 206 " It is evident, that in the reign of Richard the Second, " the feudal system, so far as it had been established by " the Norman conquest, had lost much of its force by the " result of various circumstances, and the grant by patent " of the dignity of a baron, to rank with, and have the " privileges of a peer of the realm, as a baron, without " creating at the same time a tenure by barony, was wholly " inconsistent with the idea that the peers of the realm then " formed a baronage, composed of persons holding by ba- " ronial tenure, and haviny a right of summons to parlia- " ment, in consequence of such tenure. The baron, so " created by patent, and the heirs male of his body, were, " by the terms of the patent, to have all the privileges of " other barons, which, if the other barons were barons by " tenure, and he, and the heirs male of his body, were " only barons by patent, could not be." " Among the various complaints made in parliament at n sir; jbkvw #y#\KJili l:r,iaai Ja sdT '* tf The commoners entitled to vote in electing a member ' to serve in parliament for any shire, are always described " in the books in which they are ordained to be enrolled, " the barons and freeholders of the county." " At present a title and a style are always assigned to " persons enrolled in the royal writs, elevated to that state, te but were seldom specified in old times, and a clause " either particularising those, by which the patentees " should in future be distinguished, or authorising the " noble grantees to assume them, was much oftener " omitted than inserted, a proof that a title and a style " were implied in a particular species of property." SCOTLAND. 217 " In ancient charters, by which lands were raised to " honours, place or rank is sometimes enumerated among " the pre-eminences implied in them ; and the terms used " in those deeds, however apt in some cases, to be misun- " derstood at present, will constantly be found, if atten- " tively considered, to mean no more than precedency or " degree. A seal in parliament, an object in itself little " valued, as well as implied in every freehold, I dare not " assert positively, I believe, however, was never given " or expressed. But, after peerages had been disjoined " from fiefs in 1587, a right to sit and vote in that as- " sembly, as well as a title corresponding to their dignity, " began to be expressly conferred.** " Originally with us, none had a seat in parliament, " but those possessed of a freehold of the king," &c. &c. Dignities conferred on lands, on alienation, passed along with the fiefs from the former proprietors to the new acquirers. The ancient custom of summoning all the barons or freeholders to parliament, continuing in use until recent times in Scotland, enable us to form a more correct idea of the early practice in England ; and the foregoing notices clearly evince, that the titles of duke, earl, or lord, had no necessary connection with the seats in parliament, or what we now term a peerage. These dignitaries were nobles, and as before stated, invested with certain rights and jurisdictions, within their respective territories or lordships, and cognizance of certain pleas, and were bound to attend the king's court or parliament, if summoned; 218 SCOTLAND. but that attendance was a service and not a dignity; at present the chief part of the dignity of a peer is having a seat in the house of lords, and is considered the chief privilege. Originally all the freeholders (or barons) had that right as well as the earls and great lords. In 1427, the parliament or general council of Scotland, ordained by special act, that the small barons and free tenants need not come to parliaments or general councils, if that two wise men for each sheriffdom should be elected and sent to represent them, who should be called commis- saries of the shire. And by these commissaries, a wise and expert man should be chosen to be the common speaker of the parliament. The act also provides that, " All bishops, abbots, priors, " dukes, earls, lords of parliament, and banrents, which " the king will be received and summoned by council and " parliament, by his special precept." In this document the barons are omitted, and the words lords of parliament, or peers, are substituted, which is a very remarkable fact, and strongly supports the position that barons were not lords of parliament, or peers. The Scottish legislature followed closely the customs, and adopted many, or most of the innovations or improvements of their English neighbours. James the First, of Scot- land, having passed his youth in England, was well ac- quainted with and affected to the English constitution. In 1455, an ordinance was made touching the habits of the earls, lords of parliament, and commissaries of bo- SCOTLAND. 219 roughs, as no mention is made of the commissaries of the counties ; it would appear that they were included among the lords of parliament, as the representatives of the nobles of an inferior rank, or the lesser barons, or free- holders. Barons , in its general sense in Scotland, included all lay tenants of the crown of every description, the bur- gesses of the burghs only excepted. In 1457, a statute of James II. ordained, "that no free- f holder, that held of the king the sum of twenty pounds, " should be constrained to come to parliament or general " council, as for presence, unless he be a baron, or spe- ft dally of the king's commandment, be warned either by " officiar or writ.'' In 1503, it was ordained, " that no baron, freeholder, *' or vassal, with one hundred marks should be compelled " to come personally to parliament, unless specially sum- " moned by the king. But all above that sum were to " attend under the lawful penalties." As the term baron, applied to all the tenants in chief of the crown, without exception, the commissaries for shires were commissaries for the barons, and formed part of the second estate of the kingdom, or the nobles, or lords of parliament. It was not till the revolution of 1688, that the commis- saries for the shires were formed into the second estate, the lords being the first and the burgesses the third. 220 SCOTLAND. On personal honours, Mr. Wallace makes the following judicious observations : " Two propositions seem unde- *' niable ; first, that those honours had been brought into " Scotland a considerable time before the year 1587 ', and, " secondly, that they continued not to be peerages till the Vf great alteration then affected on parliament and them." " In the Scotch records, several noblemen are found ,; fad*' .' '.:"): i'.tijt I " Perhaps it was intended in 1427, both by the legisla- " ture to confer on the sovereign, and by James to obtain " for the crown, a prerogative of annexing inelective seats before the arrival of king Henry in Ireland, and another the king's departure in 1173. The great charter of the liberties of John, was trans- mitted to Ireland in the twelfth year of king Henry the Third, Anno 1227, to Richard de Burgo, then lord justi- ciary, in which he was commanded to call before him the archbishops, bishops, earls, barons, knights, and free- holders, and the bailiffs of the counties, and publicly to read before them the said charter, and to swear the mag- nates of Ireland, and to command them, on the king's behalf, to firmly hold, observe, and put in force, the said laws and customs of England. And also to cause pro- clamation to be made in every county of Ireland, that the said laws and customs should be observed and obeyed, with the exception that neither for the death, nor the chat- tels of the Irish, should any one be impleaded until after fifteen days of St. Michael, in the said year. The writ itself, is considered of so much importance, that it is here inserted at length : " Rex, dilecto et fideli suo, Ricardo de Burgo, justiciario suo Hiberniae, salu- tem. Mandamus vobis firmiter precipientes quatenus certo die et loco faciatis venire coram vobis archiepis- copos, episcopos, abbates, priores, comites, et barones, INTRODUCTION OF ENGLISH LAW. 233 milites, et libere tenentes, et ballivos singulorum comi- tatuum, et coram eis publice legi faciatis cartam domini Johannis regis, patris nostri, cui sigillum suum appensum est, quam fieri fecit et jurari a magnatibus Hiberniae, de legibus et consuetudinibus Anglias observandis in Hiber- nia. Et precipiatis eis ex parte nostra quod leges illos et consuetudinesjin carta predicta contentas,de cetero firmiter teneant et observant. Et hoc idem per singulos comitatus Hibernise clamari faciatis et teneri, prohibentis firmiter ex parte nostra et super forisfacturam nostram, ne quis contra hoc mandatum nostrum venire presumat; eo excepto quod nee de morte nee de catallis Hibernensium occisorum nichil statuatur, ex parte nostra, citra quindecim dies, a die Sancte Michaelis, anno regni nostri 12, super quo respectum dedimus magnatibus nostris Hibernise usque ad terminum predictum. Teste meipso apud Westm. 8 die Mail anno regni nostri 12."* In this same year, king John, as stated by Mathew Paris, placed sheriffs and other ministers to govern the people, according to the law of England, and to that end, " Ipse duxit secum viros discretes et legis peritos, quorum com- muni consilio statuit et precepit, leges Anglicanas teneri in Hibernid) &c."t In 3245,30 Henry III. the following writ issued to the lord justiciary of Ireland, confirming former writs on this subject, and directing that all the writs current in Eng- land, should likewise be made current in Ireland, under the king's new seal. The writ is as follows : Rot. Claus. Turr. Lond. 12 Hen. III. 1227. + Rot. Pat. 11 Hen. III. m. 3, Turr. Lond. IRELAND. De legibus Anglicanis in Hibernia tenendis. " Rex, &c. quia pro communi utilitate terre Hiberniae, et unitate terrarum regis, rex vult, et de communi consilio regis provisum est, quod omnes leges et consuetudines que in regno Anglie tenentur in Hibernia teneantur^ et eadem terra eisdem legibus subjaceat ac per easdem regatur, sicut dominus Johannes rex cum ultimo esset in Hibernia statuit etjieri mandavit. Quia etiam rex vult quod omnia brevia de communi jure, que currunt in Anglia, similiter currant in Hibernia, sub novo sigillo regis. Mandatum est archiepiscopis, &c. quod pro pace et tranquillitate ejusdem terre, per easdem leges eos regi et deduci permit- (ant, et eas in omnibus sequantur. In cujus, &c. Teste rege apud Wodestock 9 die Septembris."* Prince Edward, as lord of Ireland, having been pre- vailed on to issue, or rather the chancellor having issued a writ, against the bishop of Lismore, which, in its nature, was contrary to law ; it was superseded in its effect by a writ of the king's. " Quia vero dictum breve tarn dissonum est, et contra leges et consuetudines in regno nostro tentas." * - **$-- " The writ is as follows : Rex, thesaurario et baronibus de scaccario Dublin, salutem, quia, de assensu et voluntate praelatorum et magnatum terrae Hiberniae, dudum fuit provisum et concessum, quod eisdem legibus tenerentur in terra ilia quibus homines regni nostri utuntur in regno nostro Anglicc, quod eadem brevia, quoad terras et tene- menta recuperanda, teneant in terra ilia, quae tenentur * Rot. Pat. SO Hen. III. INTRODUCTION OF ENGLISH LAW. 235 in regno proedicto sicut justa. Et dicta provisio et con- eessio omnibus retroactis temporibus fuerunt obtenta et approbata, miramur quam plurimum quod (sicut ex insi- nuatione venerabilis patris Thomae, Lismorencis episcopi, accepimus) emanare permisistis ex cancellaria Edwardi filii nostri in Hibernia, contra consuetudinem obtentam et formam brevium in regno nostro usitatam. Breve in- frascriptum contra prsefatum episcopum in haec verba : " Edwardus, illustris regis Angliae primogenitus, ad vie. Waterford, salutem, praecipe Thomas, Lismorensi episcopo, quod juste et sine dilatione reddat Waltero, episcopo Waterford, Maneria de Archmurdeglan, Kilmurdri, et Motha, cum pertinentiis, quae clamat esse jus ecclesiae suae, et in quae idem episcopus non habet ingressum, nisi per Alanum, quondam Lismorensem episcopum, cui Griifinum, quondam Lismorensis episcopus, qui inde injuste et sine judicio disseisivit Robertum quondam episcopum Water- ford predecessorem episcopi, post ultimum redditum, &c. " Quia vero dictum breve tarn dissonum est et contra leges et consuetudines in regno nostro tentas, et formas brevium nostrorum ibidem approbatas, praesertim, cum breve ingressus non transeat tertiam personam, nee ratione intrationis in terram aliquam, post mortem alicujus, com- perat, actio alicui de terra ilia, nisi illi, cui per mortem ilium jus debetur in eadem, nee enim dicitur intrusio, qui jure haereditario, vel ratione ecclesiae suae, succedit predecessor! suo in hiis de quibus idem predecessor fuit seisitus in domi- nico suo ut de feodo, die quo obiit, vobis mandamus quod si dictum breve, a cancellario praedicto in forma praedicta, emanaverit, executionem ejusdem brevis supersedeatis., re- 236 IRELAND. vocantes, sine dilatione, quicquid per idem breve actum fuerit in curia praedicti filii nostri. Teste, apud Windsor, 27 die Januarii. Et eodem modo scribitur Adamo le Sole, justiciario Hibernise, et Walerano de Wellesley, et sociis suis itinerantibus, ut supra."*" The following is a decision of the Court of King's Bench of England, extracted from the Placita Roll, of the thirteenth year of king Edward the First, anno 1284, preserved in the Chapter-house at Westminster : Trinitat. anno decimo tertio. Majus Record. " Placitam tangen custod. terrarum et corporum eorum qui sunt infra etatem in quo contineturin fine ejusdem : ' Et cum una et eadem lex esse debeat tarn in regno Anglicc quatn Hiberniec. Ideo consideratum, est/ " &c. Rot. 70. t The parliaments of Ireland, held in the 9th of Henry V. and the 7th of Henry VI. made representations to those kings, among other grievances, of the hindrances which Irish students of the law met with at the Inns of Court in London, when they went there to study, in which the unity of practice of the laws in both countries is set forth. These statements are given hereafter in full from the Close Rolls, but the passages referring to the students at law, are here inserted. That of 9 Henry V. Prynne, 255. i It may also be found in the Abbreviatio Placitorum, Ric. I. a Edward 11. printed by the Commissioners of Records of Eng- land, p. 208, 6, It is also cited by lord Coke in First Insti- tutes, 141. INTRODUCTION OF ENGLISH LAW. 237 is in the Norman French language, of which the follow- ing is a translation : " Item Your said lieges show, that whereas they are ruled and governed by your laws, used in your realm of England, to acquire the knowledge of which laws, and to be well informed therein, your said lieges have sent able per- sons, of English blood, born in your said land, to certain Inns of Court,* where, from the time of the conquest of your said land, they have ever been received, until lately that the governors and company of the said Inns have refused, and would not receive the said persons into the said Inns, as they had been accustomed to do. There- fore, may it please your most gracious lordship, to con- sider this matter, and ordain due remedy, that your laws may continue and not be forgotten in your said land."t That of 7th Henry VI. is in English, as follows :- " Item, for asmoche as yo r lawes of this land, in every of yo r co r tes, at all tymes have beyn used, both in pledyng and jugements givyngs, after your lawes used in Englond, and the lerned men here, yo r said lawes, lernet in Innes of Co r t, in yo r realme of Englonde, into nowe late that thei beyn refused to be had in Innes of Co r t, contrary to that that hath been used afor this time. We beseche you that ordenauncez be made yere that yo r liege people of this land, y' comyth thedir for ther said lernynge, may be rescayvet in to Innes of Co r t, as they have be of hold tyms ; so that yo r latves in this land may be contynuet forth ; considerynge yat ellys whan yese y e nowe beyn here larnet beyn dede, there shal be none in this land that shall conne your lawes, lasse than it be lernet yere, the which * Hostelles de Courte. + Rot. Claus. Hib. 9 Hen. V. 238 IRELAND. will be a great disprofite for you, and grete hynderyng for us yo* pour lieges."* Special care seems, at all times, to have been taken to preserve the uniformity of the Irish and English law no change could have taken place in the former, but what, from time to time, had been made in England. The Irish lawyers were all educated in England, and the early judges were mostly Englishmen, sent over to administer the English law in its purity. The viceroys were also Eng- lish, or what might be considered the same thing, Irish noblemen, in possession of large estates in England, as the earls of Ormond, &c. &c. they generally held the sword but a very few years; from the year 1173 to 1200, there were no less than seventeen chief governors : in the thirteenth century, forty-six in the fourteenth, ninety- three in the fifteenth, eighty-Jive in the sixteenth, seventy-six in the seventeenth, seventy-nine in the eighteenth, ninety-four! All were naturally attached to the English laws and customs, but held the sword for so short a time, on an average, not two years, that none were long enough in Ireland to form laws or cus- toms in accordance with their own notions. The cus- toms of the mere Irish were, indeed, different, but they had no influence on the administration of the laws. Where the Irish had power they superseded the English law altogether, and introduced the Brehon, or Irish law, but where there was English rule there was English law. The viceroys and the judges knew no laws or customs, but those of England j and when that was the case, no arbitrary variations could have occurred in the administra- tion of the English law in Ireland. Rot. Claus. Hib. 7 Hen. VI. INTRODUCTION OP ENGLISH LAW. 239 The following documents show the appointment of cer- tain English lawyers, to high legal offices in Ireland, as well as the anxiety of the king for the due administration of the law : " Quod ministri regis infrascripti sint ad certain diem in Hibernia. " Rex dilecto et fideli suo Roberto de Bousser, salutem : Cum constituerimus vos capitalem justiciarium nostrum ad placita justiciarium nostrum Hiberniae sequencia, una cum aliis fidelibus nostris tenendum., quamdiu nobis pla- cuerit, prout in litteris nostris patentibus inde confectis, quas vobis per latorem praesentium mittimus, plenius, continetur; vobis, sub forisfactura omnium quae nobis forisfacere poteritis, mandamus, quod omni excusatione cessante, sitis apud Dubliniam, in Hibernia, in festo Sancti Michaelis, proximo futuro, ad exercendum et faciendum officium supradictum, juxta tenorem litterarum nostrarum praedictarum et adujvamentum, quod nobis in hac parte fa- cere tenemini, coram thesaurario, scaccarii nostri Dubliniae, cuiinjunximus quod hujusmodi sacramentum ibidem a vobis hac vice recipiat prsestandum, nos in cancellaria nostra de die receptionis litterarum nostrarum praedictarum, et ubi, per praefatum latorem subpoena praedicta, per litteras vestras certificates. Teste rege apud Nottingh. xvi. die Jul. per ipsum regem. " Consimilia brevia diriguntur subscriptis, mutatis mu- tandis, videlicet : " Adoe de Lymberg, cui rex commisit officium cancel- larii regis Hiberniae, habendum quamdiu rex placuerit. " Roberto de Storburgh, quern rex constituit capitalem baronem de scaccario, Dublin!;. 240 IRKLAND. " Hugoni de Cole&yk, qui constituitur unus baronum, de eodem Scaccario. " Thomoe de Louth, qui constituitur capitalis justi- ciarius ad placita justiciarium regis Hiberniae, sequencia in casu quo Robertus de Bouser, partes illas adire noluerit, et secundarius jsi idem, Robertus, partes illas adierit. " Thomas de Dente, qui constituitur secundarius jus- ticiarius ad placita in banco Dublinii. " Johanni de Kirkebythore, qui constituitur secun- darius ad placita justiciarium Hiberniae sequencia, in casu quo Thomas de Louth, fuerit capitalis ad placita ilia."* In the tenth year of Edward the Third, the following writ was issued : Pro hominibus terrce Hibernce. " Rex, justiciario, cancellario, et thesaurario suis Hi- berniae, salutem. Ex parte proborum hominum partium praedictarum nobis est ostensum, et fama publica, immb pocius infamia, hoc divulgat, quod vos et alii ministri, ac officiarii nostri ibidem, personarum acceptores, et de- ferentes hominibus plusquam juri, pari lege non tractatis potentes, mediocres, et simplices homines dictas terrae ; nam nimis defertis et favetis potentibus, permittentes eos et eorum complices opprimere pauperes, et gravare vicinos, jura nostra invadere, et ea sibi attrahere, potestatem re- giam usurpare, debita nostra detinere, novitates inchoare, et facinora varia perpetrare, quorum proterviam reprimere non curatis, set sine legis fraeno, sublaxo vestro regimine, inpune, per devia propriee voluntatis. * A.D. l331,Claui.8 Edvr. III. m. 19, d. in Turn Lond; INTRODUCTION OP ENGLISH LAW. 241 " Pauperes vero et mediocres qui vobis libenter obe- diunt, ab injuriis non defenditis, set eos contra justiciam nimis atteritis et gravatis, in depressionem juris, ipsorum dampnum non modicum, et aliorum perniciosum exem- plum. te Nos igitur attendentes quod sumus omnibus absque personarum acceptione justiciee debitores, et quod ad vindictam malorum, laudem vero bonorum, constituti sunt a deo secularium principum potestates, ac proinde volentes super praemissis remedium congruum adhiberi: " Vobis mandamus, sub fide et legiancia quibus nobis tenemini, firmiter injungentes, quatinus circa directionem debitam dictae terras nostrse, juxta leges et consuetudines approbatas, cum omni solicitudine laborantes, equa lege tractetis et judicetis omnes et singulos qui per legem nostrum Anglicam regi debeant, magnos et parvos, divites et pauperes, notos et ignotos, domesticos et extraneos, uni plus quam alio non faventes ; set pares singulis laxetis habenas, confoventes bonos, et exceden- tes, prout eorum excessus exposcit, debite castigantes, taliter super hiis vos habentes quod eos qui jam vobis super hoc detrahunt, obmitescere faciatis ; nosque ves- tram prudenciam debeamus ex hoc merito commendare. Teste rege, apud Wodestok, ii. die Junii, per ipsum regem et consilium."* It appears by a writ of 12 Edward III. that English judges, and high legal officers, were appointed to ad- * A. D. 1336, Claus. 10 Edw. III. m. 27, d. in Turr. Load. R 242 IRELAND. minister the law in Ireland, and that when any de- viation from the practice occurred by the appointment of others, they were considered " insufficientes et minus idonei" " in legis subvertionem^ et Jidelium nostrorum partium corundum depressionem manifestam^ and, there- fore, the king considering that " negotia nostra in terra predictaper hoc non modicum possent prosperari," supplies an immediate remedy. " Quod Justiciarii in Ilibernia, tarn ad communia placita, quam ad placita justiciarium regis sequentia, Anglici esse deberent. " Rex justiciario suo Hiberniae, et ejus locum tenenti, salutem. Cum nuper per nos et consilium nostrum ordi- natum fuerit et eoncordatum, quod justiciarii nostri, tarn ad communia placita quam ad placita justiciarium nostrum Hiberniae sequentia, Anglici esse deberent, et quod ne- gotia nostra in terra predicta per hoc non modicum pos- sent prosperari : Ac jam intelleximus a nonnullis quod quidam justiciarii, insufficientes et minus idonei, in parti- bus illis contra formam ordinationis et concordise praedic- tarum constituuntur, in legis subversionem et fidelium nostrorum partium earumdem depressionem manifestam : Nos, nolentes mala hujusmodi sine appositione remedii diutius tolerare ; vobis mandamus quod, habito cum illis de consilio nostro partium illarum, super statu justi- ciariorum praedictorum avisamento pleniori, qui, videlicet, eorum sufficientes et idonei fuerint, et qui non, de eo quod inde inveniri contigerit, nos sub sigillo nostro, quo utimur in terra predicta, reddatis distincte et aperte, sine dila- tione certiores; ut inde certiorati, alios loco minus ido- neorum, prout decet, constituere faciamus. Teste rege INTRODUCTION OP ENGLISH LAW. 243 apud Westm. iii. die Marcii, per ipsum regem et con- silium."* It is difficult to imagine evidence more conclusive, of the perfect identity of the law of England and Ireland, both in theory and practice, in early times, than what has been already given. For the practice of law during the end of the fifteenth and in the sixteenth century, it may be well to fortify the evidence by the opinions of the most emi- nent sages of the law ; we might quote many, a few will suffice. Sir John Davies was the best lawyer and most inquisitive historian who wrote on the subject; he was of English birth and education, and well ac- quainted with the laws and records of both countries ; in the speech which, as speaker of the Irish house of com- mons, he delivered to the lord-deputy on the 2d of May, 1613, he says "Doubtless, though the rest of the or- dinary courts of justice began with the first plantation of the English colonies here, yet the wisdom of the state of England thought it fit to reserve the power of making laws to the parliaments of England for many years after." Sir James Ware says ci The generality of historians have been mistaken, in ascribing to king John the intro- duction of the English laws into Ireland, which indis- putably had an earlier source. For upon the successful expedition made into that country, anno 1172, by king Henry II. it was then reduced to the model and form of the English government in church and state."t A. D. 1338, Claus. 12 Edw. III. pars. 1, m. 23, d. in Turr. Lond. f Harris's Ware, II. 7, 8. R2 244 IRELAND. " Thus, in all his grants to Fitz-Stephen, Cogan, Lacy, and others, he reserves certain knight's fees. To these reservations of knight's fees were incident wardships, marriages, reliefs, aids for making the king's son a knight, &c. &c. Now the king could not receive these incidents, if the laws had not given him means to come by them, which, of necessity, must be by sheriffs, officers of justice, and other ministers, according to the course appointed by law in his courts, and, therefore, it necessarily follows, that he granted the laws of England to Ireland, erected the courts for the execution of them, and for bringing in the profits of his grants, otherwise his reservations would have been idle and fruitless. The same may be said of the grants and reservations made by earl Strongbow, who died in 1176> about four years after the submission of the Irish ; and he also reserved English tenures, which ne- cessarily imply English laws ; and the same may be said of many other grants, made in the reign of king Henry the Second."* Sir Richard Bolton, lord chancellor of Ireland, 1644, quoting the above says " So as now the common law of England became the proper law of Ireland, and because they have parliaments there, whereat they have made divers particular laws concerning that dominion, &c. &c. it appears that Ireland is governed by laws and customs, separate and divers from the laws of England." Sir Richard then enters into a discussion, to show that the laws of England were only established in the shire ground of Ireland. The object of the essay was to prove that Harris's Ware, II. 80, 81. INTRODUCTION OF ENGLISH LAW. 245 Ireland was not bound by English statutes, or acts of par- liament, until they were confirmed by the parliament of Ireland. Lord Coke in the first Institutes, 141, quotes a decision of the Star Chamber : " Terra Hybernia inter se habet parliamentum et omnimodas curias prout in Anglia, et per idem parliamentum facit leges et mutat leges, et illi de eadem terra non obligantur per statuta in Anglia, quia non habent milites parliament!."* Further, in the fourth Institute, 349, he says "Of the kingdom of Ireland, we shall not need to undertake another work to write of the courts of justice there, for they have the same which we have in England and the same law, saving where some that have written of them have in some main points mistaken the matter; we will convince the same by matter of record." Other opinions might be adduced in support of the points under consideration, but what has been said is so conclu- sive, more might be justly deemed impertinent. The following document cannot be considered legal evi- dence, yet is it worthy of preservation, as it throws some light on the nature of ancient tenures, and will have its weight as a historical document. It was entered on the Black Book of Christ Church cathedral, Dublin, in the reign of queen Elizabeth, and therein is stated to have been transcribed from an old book of the conquest of Ire- 2 R. 3. 12. In Camera Stellata, 1 Hen. VIII. 3. 246 IRELAND. land, which " John Caddell hath." The language is, no doubt, different from the English of John's days, but that is not a valid objection to the genuine character of the do* cument, because the transcriber into John Caddell's book, would naturally make it intelligible to his readers by al- tering the spelling and modernizing the diction. KNIGHTS TENURE AND SERVICE. "Memorandum at y e time that king John was in Ireland, divers, by his fader and him enfeoffed, did dught (doubt) of their tenure, and in what manner they should do service to him for their leuery, made this petition tmto him. " To the honorable and right puissant seignur John, kinge of Englonde, lord of Ireland, duke of Normandy, and Acquitain, also earl of Anjewe, prayeth you, your humble tenants, that whereas your honorable fader, and you, of your right large lordship to us, have given lands to hold of you and your heirs, to sume of us by knightes service, to sume one fee, to sume two fees, to sume three fees, or more, by knight's service, to sume one, two, or three knights' services, and to sume by half, third, fourth, or further part of one service, to some by service of one serjeant a fote, and to sume by sume of the said services, when escuage, or royal service runneth, and to sume by service to pay certain money, when the escuage runneth; and wee know not the tyme, neither in what manner, your service aforesaid shuld be done by us to you. Prayeth, therefore, your benign lordship, that you would certify us thereof to that default, (because of our ignorance to pay unto you your due servis) be not found in us, for the love of God, and in the way of charity." INTRODUCTION OF ENGLISH LAW. 247 ANSWER. * f The king will, that every man aboif written, do the aboif written service, when the escuage runneth, that is, when the royal service is proclaimed, and that service is, when the king, by common council of his tenants, send in certen day and place, by warning of forty days, at least, to do battayle, other to ride an hostyng for forty days, other more or less to warr upon his enemyes for the time being, then every man that holdeth his land by knight's service, other holdeth oone, two, or three fees, by knight's service, other holdeth by service of oone, two, or three knights, for every service, fee, or knight, aboifsaid, he is bound to have, at his costs, in the company of his lord for the time of the battayle, or riding to the hosting, as is aboifsaid, oone able man, armed in manner of a knight; that is to saye, in old time, every man shall be armed with haubricks and helms, with shelde, spear, and sword, being upon an able horse ; but now the king will, that the said man be armed as knights do use to be armed in the same country. And every man that holdeth by half, third part, or fourth part, of oone service, to have company to performe oone service, if he will ; and every man that holdyth his service by oone serjeant of fote, he is bound to have in company with his lord (as aboifsaid) one able man in old time with a spear, shelde, and long knyf ; and now the king's will, that they have bowe and shafts, with a sword, as Serjeants of fote doth use in the country; and if any that hold by knights, other by one, two, or three fees, by knight's ser- vice, make default of service, the king will, that for every .service on fote, he shuld pay to his lord for every day twelve pence, and if any that hold by service of a serjeant 248 IRELAND. of fote, make default of his service, should pay to his lord every day six-pence, and he that hold his land by service to pay certain money, when the escuage runneth, so let him do, and so God save the king." The system of talliage and aids was adopted in Ireland, immediately after the English conquest, as soon as the settlement of the country allowed it to operate. On the Close Roll of 3 Henry IH. in the Tower of London, is the following entry : " Mandatum est Gal- frido de Marisco, justiciario Hiberniae, quod tallagium et efficax auxilium civitatibus, burgis, et dominiis domini regis,imponi faciat, unacum domino H.Dublinii, archiepis- copo, cui idem datus est in mandate, et quod ponant a re- gibus Conhath et Todmond, et aliis regibus Hiberniae, et baronibus, qui de domino rege tenent in capite, cum efficace auxilio si dominus rex benignior eis semper inveniatur in agendis suis. Et mandatum est eisdem quod pecuniam illam collectam per nuncios discretos et fi deles quam citius poterint in Anglia domino rege transmittant, sicut melius viderunt expedire. Datum apud Cailham, decimo die Nov. anno, &c." This order or mandate, directs the lords justiciary to levy talliage, and an effectual aid on all the king's cities and boroughs, and that he and the archbishop of Dublin, should call on the kings of Connaught and Thomond, and the other kings of Ireland, and the barons, who held of the king in capite^ to grant the king an effectual aid. Those barons who held of the lords of Leinster. Ulster, Meath, INTRODUCTION OF ENGLISH LAW. &c. were taxed by their own lords, who held of the king in chief. This is the first instance on record, of an aid being demanded from the kings and barons of Ireland, and of the levying of talliage and an aid on the cities and boroughs of Ireland, which apparently was done as a legal and rightful exercise of the king's' authority. The first instance on record, of the magnates or barons of Ireland, being summoned to render service to the king out of their own country, by reason of their tenures, in fide qua nobis tenemini, was in the thirteenth year of king Henry the Third, A. D. 1227. The summons is on the Close Roll of that year, in the Tower of London, as follows : Rex , &c. salutem. Sciatis quod cum fuissemus apud Portesmouth a die Sancti Michaelis in xv. dies parati ad transfretandum sicut firmiter proposuamus: venit illuc ad nos Comes Britanniae nobis fecit ibidem de Britannia tenenda de nobis. Cumque de transfretatione nostra inter comites et barones nostros longius haberetur tractatus tandem per consilium predictorum Britann. distulimus passagium nostrum usque ad instans clausum Paschae anno, &c. xiiii unde non oportet quod ad presens ad nos veniatis in Anglia sicut prius vobis mand domino indubitanter sumus transfretatur ad predictum terminum clausum Paschas. Vobis mandamus firmiter injungentes in fide de nobis tenemini quatenus nullo modo apud London, die dominica in ramis palmarum anno, &c. 13 te quinto militum ita parati equis et armis ad transfretan- dum cum corpore nostro: quod vobis ad multiplices gra- tiarum teneamur ...xxvi die Octobris, &c. xi. .. venirent .. ..in xv. dies et videlicet. 250 IRELAND. Walterus de Lascy, se quinto,* Hugo de Lascy, se quinto," Walterus de Ridelesford, se altero/ Mauricius filius Geraldi, se tertio/ Matheus filius Griffini, se altero, Philippus de Barry, se alter o/ Willielmus de Lascy, se altero, Theobaldus Pincerna, se tertio/ Willielmus de Marisco, se altero,* Geraldus de Prenderdast, se altero, Willielmus de Wigornia, se altero vel solus bene paratus," Johannes de Clahull, se altero, 1 Stephanus de Hereford, solus, k Hugo Gaurel, se altero, Patricius de Courcy, se altero, 1 Ricardus de St. Michaele, solus, Johannes filius^Thomae, solus, Geraldus de Rupe, solus," Johannes filius Dermitii, solus, .David Basset, Nicholas Parvus. p Galweyaet Alano de Galweya, quod ipsi sint ad eundem terminum cum equis et armis ad transfre- tandum cum rege. a Lordof Meath. h Lord of Knockgraflen, also b Earl of Ulster. called deBraose. e Lord of Bray. * Lord of Balrothery, in the d Ancestor to the Earl of Kildare. county of Dublin. * Lord of Olethan. " Lord of Bray. * Lord Butler, ancestor to the ' Lord of Kingsale. Marquess of Ormond. m Lord of Desmond and Decies. * De Moutemarisco, or Mont- n Lord of Fermoy. morency, Lord of Stoneford Lord of Rathdown, originally and Lateragh, in Tipperary. Irish. v Petyt. INTRODUCTION OF ENGLISH LAW. 251 All these were barons of Ireland, and by these writs were summoned to attend the king, according to the re- spective services due for their lands, some with five knights fully caparisoned and prepared, others with three, and one, and others alone. This occurred in less than sixty years after the coming of Strongbow, and exhibits satis- factory, and conclusive evidence, of the perfect estab- lishment of the feudal law in Ireland. 252 IRELAND. CHAPTER XI. EARLY COUNCILS AND PARLIAMENTS OF IRELAND. The early councils of Ireland were assemblies of the prelates, magnates, and chief tenants of the crown, similar to those of England v The legislative parliaments, imme- diately after their institution in England, and in their im- perfect form, were introduced into Ireland, where the improvements of their constitution were adopted as they arose, and finally, after their complete and final ar- rangement in England, they also acquired in Ireland the state in which they continued till the union of the two parliaments. In 38 Henry III. writs similar to that mentioned in page 74, directed to the archbishop of Canterbury, is- sued to the archbishops and bishops of Ireland, requiring their counsel and assistance. Similar writs were also di- rected to the magnates of Ireland at the same time. That to lords spiritual was as follows : " Rex, universis archiepiscopis et episcopis in Hibernia constitutes, salutem. Cum rex Castellae, cum multitudine HENRY III. 253 exercitus Christ! anorum et Sacacenorum, terrain nostram Vasconiae, in quindena Paschae proximo futura, ingressurus sit hostiliter, ad terram illam destruendam et oecupandam, ac per introitum ejusdem terrae, si earn optineret, quod absit, terras nostras Angliae et Hiberniae invadere aspiret ; nos, super tarn arduis et urgentibus negotiis consilium oestrum et auxilium requirereproponentes, vos requirimus^ in fide qua nobis tenemini^ affectuose rogantes quatinus, sicut nos et honorem nostrum, necnon et indempnitatem corporis nostri diligitis, nullatenus omittatis quin, in in- stanti mediae quadragesimae, conveniatis apud Dublin coram Johanne filio Galfridi justiciario Hiberniae, (quern propter hoc ad partes illas mittimus) audituri voluntatem nostram super praedictis negotiis, quae idem justiciarius vobis tune viva voce plenius exponet, et cum aliis magna- tibus terrae nostrae Hiberniae, quibus id injunximus, super eisdem negotiis tractaturi, et consilium vestrum et auxi- lium adhibituri. " Et vos, circa dictum diem, provideatis et deliberetis, quam honeste et potenter nos, in tarn urgenti et inex- cusabili necessitate, de bonis vestris velitis respicere ; in- ducentes efficaciter subditos nostros quod nobis in tanta necessitate et periculo munifice subveniant. " Qtiia nullo tempore future tantum indigebimus, deo dante, subventione amicorum nostrorum quantum in prae- senti indigemus. Testibus Alianora regina nostra, et Ri- cardo comite Cornubiae apud Westm. xxix. die Decembris. Per reginam, comitem, et totum concilium."* -. .o-.:i ..!>..:- >.i \,. :>^ f - ^tffU^f'otsutttinii * A. D. 1253, Pat. 38 Hen. III. m.8, in Turr. Lond. 254 IRELAND. On the Plea Roll of the fifty-third year of king Henry the Third, in Bermingham Tower, is enrolled the fol- lowing statute, enacting the uniform use of the weights and measures of the city of London, regulating the sale of winej and the wages of servants, in Ireland, viz: " Provisum et statutum est de consilio domini Robert! de Ufford, capitalis justiciarii Hibernie,et aliorum fidelium domini Edwardi, qui sunt de ejus consilio, et de consensu omnium magnatum et totius communitatis Hibernice, quod una et eadem mensura cujuslibet generis bladi, una et eadem ulna, sint de cetero per totam Hiberniam que sunt in civitate Londinii usitata et approbata. Et quod aliquis de cetero, qui aliqua vina habeat venditione exponenda dolium vini non vendat nisi ad precium quo poterit dimi- diam marcae lucri reportare. Et quod aliquis servientium qui bladum recipere, debet et consueverit pro pastu suo de cetero non recipiat nisi mensuram bladi, scilicet quar- terium Londinii, ad duodecim septimanam. Et si aliquis serviens hoc contempserit, et ad recipiendum negligens fuerit, bene liceat domino suo ilium per corpus suum castigare et imprisonare." Henry the Third, having made his son, prince Edward, lord of Ireland,* all acts were done in his name. This statute, therefore, was enacted by the lord Robert de Ufford, chief justiciary of Edward in Ireland, and the other faithful of the lord Edward, who were of his coun- cil, with the consent of all the magnates, and the whole * In the 40th year of his reign, 1254, when a writ issued to le- galize the prince's seal as the great seal of Ireland. Rot. Pat. 40 H. III. m. 12, in the Tower. EDWARD I. 255 Commons of Ireland. It is believed to be the first in- stance, in either country, of the enactment of a law in which the words so clearly express the consent of the magnates and all the commons, to the enactment of a law for any purpose but the imposition of a tax. The com- mons here mentioned, must have been the community of the barons, or of the tenants in chief of the crown, whe- ther by a representation, or by summons to all, is not easy to say. It might, however, have been the special instruc- tions to Ufford, the justiciary, that to legalize any statute made by him and his council, it should be necessary to have the consent of the magnates, and the whole commune concilium regni, as we have instances afterwards of writs from the king, directing English statutes to be promulgated and enforced in Ireland, without any re- ference to the authority of the Irish parliament. This statute, although passed with the avowed consent of the magnates and commons, may have had its force from the enacting power of the king, represented by, and vested in prince Edward, if the power of the justiciary and his council was limited, as suggested, and later documents render this more than probable ; it, therefore, cannot be considered, standing alone, as conclusive evidence, that the legislative power, was vested any where but in the king, though it may be allowed to be evidence of the ap- proximation to an alteration of the constitution of the country, which is sufficiently evidenced by what has been adduced, as to the state of the parliament of England at this period. On the Pipe Roll of the 3d of Edward I. 1274, is an account of the new customs granted to the king by the 2/>G IRELAND. magnates of Ireland : " Compotus novarum custumarum domino regi concessarum per magnates Hiberniae.*' These parliaments of Ireland, like those of England at the same period, consisted of the greater barons, and perhaps the representatives of the tenants of the crown in the counties. That the cities and boroughs were not then represented, may be inferred from a document in the ancient chartulary of the city of Dublin, called the " Domesday Boke of Devylin Cittie" of which the following is a translation : " To all persons who shall see or hear these presents, the mayor and citizens of Cork, send greeting in the Lord. Know ye, that we, in common council, by consent and assent, and of our voluntary will, have granted, for us and our successors, to the mayor and citizens of Dublin, the mayor and citizens of Waterford, the mayor and citizens of Drogheda, on the side of Louth, the mayor and citizens of Limerick, and the seneschal and burgesses of Drogheda, on the side of Meath, that if it shall hap- pen, which heaven forbid, that any person, by what- soever authority, shall attempt or presume to impugn, in- fringe, or lessen the liberties granted to them (i. e. Dublin, &c.) by charter from the illustrious kings of England, in whatsoever manner, in whatsoever places or times, or before whatsoever persons, ecclesiastical or secular, by reason whereof, for their defence or protection, expenses, charges, and labours, shall of necessity accrue, so often as we shall be required, we will afford them all counsel and assistance to the utmost of our power, saving the rights of our lord the king, and the faith and fealty to him due ; EDWARD I. 257 and for our apportioned share of the said expenses, rated according to the extent of the means of the said cities and boroughs, to uphold the liberties aforesaid, and in ac- cordance with the provisions made by the said citizens and burgesses, we will be answerable to them without any difficulty or contradiction. It is also granted, and in common council ordained, that once in term, viz. on the morrow of the Holy Trinity, two or three of the most discreet persons of the aforesaid cities and boroughs, shall assemble at Kilkenny, to consider and treat of matters concerning their liberties, -end to adjudge in what most convenient and suitable manner their said liberties may be best pre- served uninjured ; and if one or more persons belonging to the before-mentioned cities, or boroughs, shall presume to infringe this grant and ordinance, or shall fail to ob- serve the form of the matters above set forth, he, or they, shall be held justly indebted to those who shall duly ob- serve the form above-mentioned, in the sum of twenty pounds sterling, for their charges, expenses, and trouble. In such manner, that after he or they shall have been warned to pay the said twenty pounds, and shall fail to pay the same, then it shall be lawful for the parties ob- serving the form aforesaid, to arrest the goods of the party not observing the same, wherever they shall be found, and, without any hindrance or contradiction, to levy in full out of the said goods, the said twenty pounds, and to execute their will and pleasure upon the same. In witness whereof, we have caused our common seal to be affixed to these pre- sents, dated at Kilkenny, on the Friday next before the feast of the Holy Trinity, in the thirteenth year of the reign of king Edward." s 258 IRELAND. The several documents executed by the mayors and superior -officers of the other cities and towns within men- tioned, agreeing verbatim with the foregoing, are in the same record. If the cities and towns before-mentioned, were then re- presented in the parliament, these agreements for their mutual protection and safety, against contraveners of their rights and privileges, would not have been necessary or called for, and therefore, it may be considered a natural and conclusive deduction, that they were not then repre- sented in the assembly then called the parliament, which was held in the very year these agreements were entered into. The earliest mention of a parliament, by name, on the records of Ireland, is on the great Roll of the Pipe of 10 to 12 Edward I. 1281 to 1283, where the following entries are recorded in the Compotus of the county of Dublin : te Magister Militum Tetnpli c. solidis quia summonitus non venit ad parliamentum." In the Compotus of the county of Tipperary for the same year, are the following: " Petrus de Bermingham c. solidis, quia summonitus non venit ad parliamentum." " Galfridus de Prendergast c. solidis, pro codem." 1 These parliaments were the king's high courts of justice. In the thirteenth year of Edward I. the following me- morandum is enrolled in the Red Book of the Exchequer of Ireland, and is also to be found on the Close Roll of the EDWARD I. 259 same year:* " Mem. quod die veneris in festo exaltaciouis Sanctae Crucis, anno regni regis Edw. 13, apud Wynton, li- berata fuerunt Rogero Bretun, clerico venerabilis patris Stephani, Waterfordiensis episcopi, tune justiciarii Hi- berniae, quedam statnta,per regem et consilium suum edita et pro-visa, viz. Statutum Westm. I. Statutum, post corona- tionem regis editum, et Statutum Glouc. et Statutum pro mercatoribus facta, et Statutum Westm. II. inparliamento regis pasch and without prosecution, as often as it be necessary shall be dis- trained, by taking their lands into the king's hands, or in such other manner as shall seem expedient to the courts of our lord the king. EDWARD I. 206 "As it frequently happens also, that felons escape with the prey, which they have taken in the peaceable lands, because all the inhabitants have not cavalry to follow them, as they ought to have wherefore, it is agreed and granted, that each tenant who possesses twenty plough lands, either in the marches or in the peaceable land, whatever be his condition, shall have one horse completely armed, with other arms appertaining thereto, always ready in his house. That other tenants shall have hobbies and other horses unarmed, according to their ability. And as often as they shall be found any way in default, they shall be distrained, fined, and punished, at the will of the justices, sheriffs, or seneschals. " Magnates and others also, who dwell in England, or elsewhere out of this land, and draw the profits of their lands out of this country, and send nothing for the pre- servation of their holdings, or their tenant's security, shall each of them immediately allow a competent portion to remain in the hands of their bailiffs, by which their property may be safely kept and defended, if war, or any disturbance of the peace, by any one, should happen to arise. And this shall be enforced, where need require it, by the distress of the sheriff or seneschals. " Felons also, frequently escape with their prey, because people do not rise and assist their fellows, and some of them as accessaries, participate in the ruin of their neighbours, (who will justly deserve to suffer) stimulate and excite robbers, by permitting them to pass unmolested with their prey. Therefore, is it agreed and granted, that when thieves and robbers come into any part and take 266 IRELAND. prey, or do any other mischief all persons, on notice, shall immediately they are able, arise and follow them with effect. But whosoever of the neighbourhood shall neglect to rise and attend, or be remiss in any respect towards our lord the king, shall be severely punished, and shall restore the property lost, in consequence of his ne- gligence or remissness, and that at the discretion of the justice, who shall be appointed to hear the complaints. "And because the commons of this land have hi- therto been much aggrieved in expeditions by troops, which the magnates, without license, march through the midst of the peaceable country, and when there is no war in the marches ; it is agreed and granted, that it shall not be lawful, hereafter, for any one, to lead troops out of their country, unless by the license of the chief justiciary, or by his command specially had, and then all those who attend their leader, shall receive such wages as shall be reasonable to support their journey. Whoever shall contravene this ordinance, shall be severely punished by the king, and shall restore all damage done, to be taxed by a competent jury of the neighbourhood. "As the commons, also, are too much aggrieved by magnates and others, having kerns coming continually to be supported at the expense of strangers, as well in the marches as in the peaceable country, by which the people are exceedingly impoverished ; therefore it is agreed and granted, that no one hereafter whoever, or of what autho- rity or condition he may be, shall keep more kerns or idle men, than he himself is able and willing, at his own ex- pense, to support; nor shall hire, or take any of these idle EDWARD I. 267 men from any of his neighbouring lords, or other, by force against the will. That, if it be done hereafter, he who shall have any of such idle men, shall be seriously punished by the justice, sheriff, or seneschal, and shall restore the damage, and the idle men shall be taken and imprisoned, until he obtains the grace of the king's court, and without bail for his future good behaviour, he shall not be let out of prison. " It frequently happens also, that Irish felons are made more able to effect wickedness by this, that when they purpose war, or intend to destroy any person, they procure a truce with the English, of their neighbourhood, to be given them for a certain time, that they may entirely and securely leave their home, and destroy others of their neighbours; and, having done so, it often happens that those same Irish, who at first appeared to be friends, within the time of the truce, besieged the forts, and destroyed and burned the manors. And to prevent the recurrence of these evils hereafter, it is agreed and granted, that it shall not, henceforth, be lawful to have or hold truces with the Irish, who are at war, or who are not in the king's peace, unless the truce shall be universal and equal with all, none of the faithful liege subjects being left out or excepted. And whoever shall take from, or grant any truce to the Irish, who are without the king's peace, shall be punished by our lord the king, as an ac- complice in the evil committed by such Irish, and shall restore his part of the things lost, as is before said of the subject who was not willing to rise in arms against felons. " Frequently also, the Irish are excited to war in this 268 IRELAND. manner, when they may be at peace, or have a ge- neral truce for a certain time, or have security grant- ed them by the king's courts, some instigated by co- vetousness, envy, some vindictive cause, or to seize pledges insidiously, suddenly, or by night, rush into their lands where they burn and take prey, or take and carry away their husbandry, cattle, or men, although no evil had been done in their marches ; upon which those Irish take arms, and sally forth to war, and that part of the country they believe to be the weakest, there they destroy, as well those who in no way participated in the evil done to them, or had consented thereto, as the friends and relatives of those transgressors; by which many places are so suddenly destroyed, that it rarely happens, any of the transgressors enter after into security to keep the peace of the marches. To prevent this evil in future, it is granted and agreed, that it shall not be lawful here- after, for any one to invade, insult, or take any thing by force, or against their will, from any of the Irish, being in the king's peace, having a truce for a certain time, or having had granted to them security of the peace, while they those Irish keep the peace, under any colour or cause whatever ; and if any presume to contravene this, he shall be punished severely by our lord the king, as a dis- turber of the peace ; and, furthermore, he shall restore to the Irish the injury and loss, to be estimated by competent " It has also frequently occurred, that when the Irish have given their solemn oath to the chief justice, he being in remote parts, to abstain from sudden irrup- tions, few, or none are to be found ready to resist, re- EDWARD I. 269 press, 'or interrupt .their misdeeds, by which, very often, the lands of the marches are frequently devastated. To prevent this evil in future., it is agreed and granted, that immediately, as soon as the Irish, by homicide, burning, or taking preys, shall commence war, all persons dwelling in the county or liberty where these Irish dwell, and also their neighbours of the confines of their marches, with one accord, and simultaneously, shall rise against the Irish, and maintain the war against them at their own expense, until the Irish be reduced to peace, or may have obtained a truce from the magnates of that district, to whom power is given for that purpose, or that the chief justice other- wise may be induced to ordain. And he who shall not be obedient to this ordinance, shall be distrained by the jus- tice, sheriff, or seneschal, and shall be punished for his rebellion, demerits, and offence. " The Irish also, by the density of the woods, and the depth of the adjacent morasses, (bogs) assume a confident boldness in sudden delinquency, chiefly on the king's high-way, in places so overgrown with wood and so thick and difficult, that scarcely even a foot passenger is able to pass; by which the Irish, when the mischief in done, retire into some bog or wood, which they are able to pass although the English inhabitants are not able to pursue them, and not being followed, they often escape without injury; or if they suffer themselves to be ap- proached, are able to avoid being apprehended by their pursuers. Upon which, it is ordained and granted, that the lord of the woods, with his tenants., through which the king's high-way was anciently, shall sufficiently clear the passage where the king's high-way ought to be, and at 270 IRELAND. their expense shall cut and shorten the wood, so as to make the way wide enough, and quite clear from under- wood and trees, as well standing timber as laying down. But if the lord of the place and his tenants, where a pass ought to be cut, be not able, without great injury, to un- dertake the cost of the cutting of any grove, then our lord the king, or the chief justice, shall have the assist- ance of all the adjacent country. And if the lord of the soil and his tenants, shall neglect to do this, they shall be distrained by the sheriff, until they perform it, or the chief justice shall cause it to be done at their expense ; and furthermore, they shall be severely punished by our lord the king. They shall also repair bridges, and foot* bridges, in their district, as they ought and have been accustomed to do; and where either bridges, or foot-bridges have been broken down or decayed, and he, who has been held liable to repair them, be not equal to so great an ex- pense, he shall be relieved by the country, who shall sup- ply the means to defray the expense in common for this business; but the tenant who ought to keep them in repair, shall, when he is able, return to every one the assistance he received. The chief justice shall punish severely all rebels and others who shall be found acting contrary to this ordinance. Likewise, the whole community of Lein- ster, which was lately but one liberty , shall assist and con- tribute to the maintenance of the war against the Irish, when unanimously declared by the council, and those who oppose and contradict, shall be severely punished. " The English also, who in modern times are become degenerate, in using the Irish vestments, and having the hair of the head half shaved, and preserving and allowing EDWARD I. 271 the hair at the back of the head to grow long, which they call the ciilan, conforming themselves to the Irish both in habit and face, by which it frequently happens, that the English are taken for, and reputed Irish, and slain ; al- though divers measures have been devised for punishing the killing of either the English or Irish, yet by these homicides much enmity and rancour has been fomented. The relations also of those who have been slain, have often taken revenge alternately, as enemies ; and for that reason, it is agreed and granted, that every Englishman in this land, in the head and countenance, shall imme- diately adopt the manners and tonsure of the English, and shall not again presume to turn back the hair into a culan, and if he shall do so, the justice, sher.'^T, or the seneschal of the lord in whose liberty the said English- man shall be found, and their stewards, shall distrain them of their goods and chatties, and also, by arresting their bodies, and imprisonment, if it be notorious that they wear the Irish dress ; and shall compel them immediately to relinquish their hair. Neither shall any one in future plead as an Englishman, having the Irish dress, but shall answer as an Irishman, if, in a similar case, a question shall arise. " There shall be assigned hereafter in each county and liberty, where the Irish dwell, two magnates, who, with the chief justice, in distant parts, shall be authorised lawfully to treat with the Irish for a good peace ; and, if it shall be for the common good, they shall also be au- thorised to make a general truce on good security, but they shall notify to the chief justice what is done clearly and openly, that the justice may provide for the occasion, as he shall think fit to ordain." 272 IRELAND. This parliament was held in the year 1297> the twenty- sixth year of Edward the First, for on the great roll of the Pipe of that year, the accounts of Walter Hache, sheriff of Louth, and Richard Taaffe, sheriff of Dublin, appear. The other individuals mentioned in the pro- ceedings of the parliament, also appear to have been then living, by other records ; the writs issued for summoning this parliament do not occur on any of the Close Rolls., or other records of Ireland. They might have been, and no doubt were, on the lost Rolls. Among the records of Birmingham Tower, of the 27th of king Edward I. are placita parliaments, and com- munia p, J acitu, all made up together in one roll. It commences with " Communia placita, capta apud Dublin, coram Ricardo de Burgo, Cornite Ultoniae, tenente locum Johannis Wogan, cap. justic. Hiberniae, &c." Then pleas at Kildare, before John Wogan, in Hilary Term, 27 Edw. I and on membrane 29, "/ace, Piacila parliamenta, apud Dublin, coram JohanneWogan, cap. justic. klibermcc et con- siteo regis, &c. u die Paschae in 15 dies. a. r. r. Edw. 27-" In this parliament several ordinances were made, one against the importation of Pollard and Croccard money, and for the regulation of the currency another for the regulation of servants' wages and a third, against de- pasturing pigs on the Curragh of Kildare. A petition of the mayor and bailiffs of Cork, to be allowed 12. 1 Os. 4d. in the Exchequer, which they had paid, on the king's precept, for freight of a certain ship called the Snake, for victuals sent in her for the use of the king's army in Gascony. A grant made to the prior of All Saints, Dublin, of four large oaks out of the king's forest of Glencry, to repair his mill and bridge at Steyne. And a grant to the EDWARD I. 273 constable of the castle of Kildare, of <20. for the custody of that castle. On membrane 23, also, are placita par- liamenta, consisting of petitions, pleas, and writs, not of much importance. On the last membrane are certain ordinances made at Rathwyer in Meath, Le Naas and Moun in Leinster, in the summer of the 27th year of king Edward the First, in the presence of John Wogan, justiciary of Ireland, Richard, earl of Ulster, Theobald de Verdun, Thomas Cantok, chancellor, Walter L'Enfaunt, justice, Peter Fitz-James de Birmingham, Simon de Ge- neville, (lieutenant to Geffery de Geneville in Trim) " et aliorum magnatum etproborum hominum de Midia et Kil- daria:" " That the said Peter Fitz-James de Birming- ham, should have auxilium ad guerram^ against his ene- mies of Offaley, viz. four hundred men at the wages of the county for forty days," &c. There are also many entries of proceedings by W. Leynde, qui sequitur pro domino rege, to recover wines forfeited to the king, and other matters respecting the revenue. On the Roll of Assize, before Sir John Wogan, jus-r ticiary, in the office of the chief remembrancer of the Exchequer of Ireland, of 28 Edward I. 1299-1300, are enrolled, " Placita de parliamento apud Dubliniam y a die Paschce in 15 dies, anno regni regis Edw. 28," among which is a writ as follows : " Edwardus, &c. comitibus^ baronibus, militibus, et ceteris fidelibus suis per terram Hibernice constitutis, salutem. Sciatis quod cum ad sal- vationem coronae nostrae regiae communemque regni nostri et terrarum nostrarum utilitatem, jam ordinamus et proponamus esse in proximo festo Nativitatis Sancti Johannis Baptists; apud Karliolum cum equis et armis, T 274 IRELAND. et subsidio magnatum et proceruui nostrorum ad proficis- cendum exinde ad rebellionem Scotorum inimicorum cum dei auxilio repremendam, vestro auxilio et subsidio indi- gemus, ad quod negotium commodius exequendum, de- lectos et fideles nostros Johannem Wogan, justiciarium nostrum, et magistrum Thomam de Cantok, cancel- larium nostrum Hiberniae, unacum baronibus nostris de scaccario Dubliuii, assignavimus ad petendum et requiren- dum, nomine nostro, a vobis et quolibet vestrum, sub- sidium, quod ad tarn ardui negotii felicem consummationem ac nostri ac vestri commodum et honorem videbitur op- portunum, et ad omnia alia et singula facere que prefatis justiciario, cancellario, et baronibus, seu aliquibus ex ipsis adhuc vacare contigerit super premissis et ea contin- gentibus viderent facienda. In cujus, &c. Teste meipso apud Blydam, 18 die Januarii, a. r. n. 28. " Mandavit etiam consimilia brevia omnibus civitatibus et burgis, per totam Hiberniam. " Propter quae justiciarius summoneri fecit generale parliamentum apud Dublin, in quindena Paschse, viz. Quod prelati et magnates omnes venirent ibi in propriis personis, &c. et quod communitates comitatuum, per duos, treSj vel quatuor, ad hoc per ipsos electos, et specialem po- testatem habentes^ ac si omnes fuissent presentes et simi- liter communitates civitatum et burgorum per duos vel tres, &c. " Sed justiciarius, ante parliamentum illud, decrevit alloqui majoribus et probioribus hominibus civitatum et burgorum, occasione predict! subsidii, et primo venit apud EDWARD I. 275 Droghedam, scilicet in vigiliis dominicae in Ramis Palma- rum, ubi porrectis literis domini regis majori et communi- tati burgi illius, per ipsum dominum regem directis, et habito cum eis super hiis diligenti tractatu, predict! major, ballivi, et communitates ex utraque parte aquae, promeren- dam benevolentiam domini regis, et gratiam de mercandisis quae emerunt per monetas inhabitas, &c. obtulerunt do- mino rege, cclx. marcas, unde super villam ex parte Uriel, cc. marcas, et super villam ex parte Midiae, Ix. marcas, et exinde prefatus justiciirius circumivit civitates et burgos, &c. " Et major, ballivi et communitas civitatis Dublin, concesserunt domino regi ad predictum subsidium, cc. marcas. " Et communitas burgi comitis Norfolciae de Ros, con- cesserunt domino regi, xl. libras. " Et ci vitas Waterford, c. marcas. " Et villata de Kilmedan, in eodem comitatu, c. sol. " Et villata de Athmetum, in eodem com. c. sol. " Et villata de Stratbally, in eodem comitatu, quinque centenas piscium pretii, c. sol. " Et villata de Dungarvan, in eodem comitatu, 15 cen- tenas piscium pretii, xv. lib. l< Et communitas civitatis regis Lemricensis, xl. marcas. " Et villata de Imelagh, in eodem, com. xx. marcas. " Et civitas regis de Cork, cclx. marcas. " Et villata Gilbert! fitz Thomas de Clare de Yoghil, in eodem com. xl. lib. et quinque centenas piscium pretii, c. s. " Et villata archiepiscopi Casselensis de Cassell, in comitatu Tipper ariensi, xx. lib. "Et villata Otonisde Grandison de Clonmell, xii. marcas. T 2 276 IRELAND. " Et villata Prioris de Atthissell de Atthissell., quinque inarcas. " Et villata regis de Carrick, xl. s. " Et villata de Artfynan, in eodem comitatu, prseter tenentes Hospitalis, xl. s. " Et villata de Nenagh, xl. s. " Et villata de Moydufny, i. marcam. " Et villata de Thurles, xl. s. " Et villata de Fetherd, x. marcas. " Et villata de Moydissell, in e"biem com. xl. s. " Et burgus de Kilkenny, xl. lib. " Et postea ad predictum parliamentum venerunt, et communitates in forma demandata, et diversi de eis se excusantes a prsestando subsidio, petierunt quod justi- ciarius iret per patrias, et ipsi libenter forent in auxilium quod communitates in propriis personis suis concederent se praestare subsidium, et ipsi magnates^ praeter prelatos, similiter cum eis contribuerent, &c. " Et justiciarius eis consentiens, primo ivit apud Trim, in libertate Galfridi de Geynevill, ubi communitas veniens et habito cum eis diligenti tractatu, &c. concesserunt ad predictum subsidium, cc. marcas, et in crastino communi- tas comitatus Midiae, veniens ibidem, prseter crocias, &c. concesserunt similiter, &c. ccc. marcas. " Et communitas crociarum Midiae, praeter tenentes abbatum de MeUfont, de Diveleck, et archiepiscopi Ard- machani, xx. libras. " Et tenentes predict! archiepiscopi in Midia de te- KD\VARD I. 277 nentibus suis de Arcagh, x. in areas, et tenentes suis de Kilmoon, x. marcas. " Et tenentes predict! abbatis Sancti Thomae de Dive- leek, xl. s. " Et communitas comitatus Louth, prseter tenentes pre- dictorum arehiepiscopi et abbatis de Mellifont, conces- serunt, &c. Ixxx. libris. "Et tenentes predicti archiepiscopi, in predicto comitatu, xx. lib. " Et tenentes predicti abbatis, in predicto comitatu, xx. lib. " Et communitas comitatus Dublin, prseter libertates et tenentes religiorum et crocearum, c. lib. " Et tenentes crocise archiepiscopatus Dublin, cum forensecas tenentibus de eodem feodo, prseter villam Sancti Sepulchri, Dublin, c. marcas. " Et tenentes prioris Sancti Johannis extra Novam Portam Dublin, xl. s. " Et tenentes prioris Sanctse Trinitatis Dublin, c. sol. " Et tenentes abbatis Sanctae Marias Dublin, xl. sol. " Et tenentes abbatissae de Hoggys, Dublin, ii. marcas. " Et tenentes crocias Ferniensis, xii. marcas. " Et tenentes crociae Leighlinensis, vi. marcas. " Et tenentes crociae Ossoriensis, marcas. " Et communitas libertatis Wexfordiae, Ixxx. marcas. " Et tenentes de Offelmeth, in libertate Katherlagh, praeter abbias, x. lib. " Et tenentes Johannis de Hastings, in Oboy, in eadem libertate, iiii. marcas. " Et tenentes de Obartory, in eadem libertate, cum villa de Katherlagh, x. marcas. " Et tenentes de Fotherid, in eadem libertate, xx. mar. 278 IRELAND. " Et tenentes de Odroon, in eadem libertate,xx. marcas, " Et tenentes libertatis Kilkenniensis, c. lib. " Et communitas comitatus Kildariae, c. marcas. " Et communitas comitatus Waterfordiae, praeter pre* dictas villatas, c. lib. " Et communitas comitatus Cork, praeter villatas mer- catorias, cc. lib. " Et communitas eomitatus Limerick, praeter villatas mercatorias, cc. marcas. " Et communitas comitatus Tipperariensis, praeter vil- latas mercatorias, cc. lib. " Et villata de Athdare, in com. Limericensi, v. marcas. " Et villata de Rathgal, in eodem com. xl. s. " Et villata de Inskefty, xl. s. " Et villata de xl. s. " Et villata de Dermoth, in eodem com. v. marcas. " Et villata de Aisy, xl. s. " Et villata de Grene, xx. s. " Et villata de " Et sciendum quod tenentes de crocia Momonia, eoncedunt quod ipsi de suo quantu sua de libertate sua, et non occasione alicujus tur in crociati et sub tali forma quod non consuetudine alias, &c. et eis concedetur." This very singular and extraordinary proceeding, is en- rolled among the Placita Parliamenta, in consequence of the king's writs, the first of which was directed to the earls, barons, knights, and the rest of the king's jideles, established in his land of Ireland, demanding a subsidy to EDWARD I, 279 assist him in his expedition to Scotland. The like writs were directed to the cities and boroughs of all Ireland. In order to obtain the grant of the subsidy, the justiciary summoned a general parliament to meet at Dublin, in fifteen days of Easter, and directed that all the prelates and magnates should come in their proper persons; that the commons of the counties should appear by two, three, or four individuals, by them to be elected, having special power to act, as if all were present; and that the cities and boroughs should likewise elect two, or three, in like manner, to appear to express their assent. But the justiciary, before the parliament met, deter- mined himself to confer with the mayors and honest men of the cities and boroughs respecting the said subsidy, and, therefore, went to each and every of them in per- son, and having called them together, and informed them of the king's wants and wishes, prevailed on them to grant a subsidy individually : from some, money ; from others, five hundred weight of fish, of the price of five pounds ; from others, both money and fish. The cities of Waterford, Limerick, and Cork, are called the king's cities , Youghal is called the town of Gilbert Fitz-Thomas de Clare, Cashel, the town of the archbishop; most of the others are market-towns of little note or character with the exception of Kilkenny. These proceedings on the part of the justiciary, clearly demonstrates the unsettled and uncertain constituent parts of what was then called a parliament; for he, having felt it prudent to apply to them individually for their contri- 280 IKKLAND. butions, their representatives did not afterwards attend the parliament when it met. The magnates and representatives of the counties met, and excused themselves from granting the subsidy, but requested the justiciary himself to go to the counties, or countries, (patrias) and that they would freely give their assistance and influence, to prevail on the commons of the counties, in their proper persons, to grant the sub- sidy, and that the prelates and magnates would likewise contribute. The justiciary consented to this proposal, and went to Trim, in Meath, then the palatine liberty of Geffery de Geneville, and afterwards to the other places mentioned in the foregoing document. Nothing can more clearly exhibit the inchoate and in- complete character of the parliaments at this period, as legislative bodies, than this document. Here first prin- ciples were" acted upon in the simplest possible way, each community granted for itself. The whole proceeding shows that consent only to the grant of the subsidy was required of the commons, for the justiciary applied to the cities and boroughs without waiting the meeting of parliament, and when the lords and the representatives of the counties did meet, they recommended that the same plan should be adopted with, respect to the counties, which was accordingly done. The circumstance of the counties, cities, and boroughs, having the option of electing t&o, three, or four repre- sentatives, shows that their functions were confined to EDWARD I. 281 their consent, and also that the general parliament of that day was merely a meeting called by the king to grant him a subsidy ; the word parliament, in its common ac- ceptance, meant the aula regis, or king's high court of justice, where his ordinances and decrees, which are now called statutes, were enrolled, and consisted of his greater barons, including the archbishops, bishops, and such of the abbots and priors, as possessed baronial authority in their respective liberties. The enrolment of these proceedings among the Placita Parliamenia, was probably necessary to legalize the trans- actions, but very little of them could properly be called proceedings of parliament, jet they are here recorded among the pleas of parliament, in the same way as the statutes and ordinances of the king and his council, are on the rolls of the pleas of parliament, or king's high court, in England. 282 IRELAND. CHAPTER XII. EARLY COUNCILS AND PARLIAMENTS OF IRELAND. On the Placita Querela Roll (of 1 and 2 Edward II.) before John Wogan, justice of Ireland, is a writ dated at Langley, 6 June, commanding the statute of Winchester to be proclaimed in every city, borough, and market-town in Ireland. The first enrolment of writs for a parliament of Ireland, is on the close roll of the third year of king Edward the Second, which, although a record of chancery, is now in the office of the chief remembrancer of the exchequer. It was directed to Richard de Burgo, earl of Ulster, and eighty-six other barons, or, as they are described in the writ, Men in Ireland Hominibus in Hibernid. Writs were also directed to the sheriffs of the counties, and the seneschals of the liberties, to elect two knights, and to the mayors, and other chief officers of the cities and boroughs, to elect two citizens and burgesses, to represent them in this assembly ; the names of the counties, cities, and boroughs, to which writs were sent, are not given on EDWARD II. 283 the roll, but the fact of their issue is mentioned generally. The writ and list of those summoned will be found in the appendix. This assembly, as to its component parts, seems to have been a regular parliament ; in it were enacted the first statutes, printed in the authorised edition. fc-. :-utii* 'K'j-ft $ ^rn'i^-A c-^yw 1 Richard II. a parliament was summoned to meet at Tristledermot, on Monday, post festutn cinerum. The writs directed to the archbishop of Dublin, and the rest of the bishops, com- manded them to appear in their proper persons, and not by proxy, but sufficient proxies were to be sent by the dean and chapter, and the rest of the clergy of the diocese, having full power to treat, agree, and consent to certain articles to be declared to them on the king's behalf. Si- milar writs were directed to the archbishops of Armagh, Cashel, or his vicar-general) the archbishop of Tuam, the bishops of Meath, Kildare, Leighlin, Ossory, Ferns, Lismore and Waterford, Cork, Limerick, Ardfert, Killaloe, Emly, Elphin, Down, Killala, Kilmacduagh, Clonfert, the custodee of the spiritualities of Ross, the bishops of Con- nor, and Cloyne, to the prior of St. John of Jerusalem, the abbots of St. Thomas the martyr and of the blessed Virgin Mary of Dublin, Mellifont, Dunbrody, Albu RICHARD II. 323 Tractu, Baltinglass, Tyntern, and Magio, and to the priors of the Holy Trinity of Dublin and of Connall. The lay peers summoned were James le Botiller, earl of Simon de Cusack, knt. Ormond, William de Londres, knt. Maurice Fitz-Thomas, earl Walter de Cusack, knt. of Kildare, Hugh Byssett, knt. Gerald Fitz-Thomas, earl of Henry Savage, knt. Desmond, Thomas Tuyt, knt. David de Barry, knt. Thomas Vernayll, knt. Richard de Burgo, Robert Calf, knt. Thomas Fitz-John, knt. Thomas Clifford, knt. Patrick de la Freign, knt. Similar writs were directed to the following persons who were of the king's council : Sir Robert de Preston, knt. John Keppok, Stephen Braye, Richard Plunket. John Tyrrell, Similar writs were directed to the following persons : J n . Hussey, baron of Galtrim, Nicholas le Poer, Maurice Fitz-Richard, Jno. Fitz- William de Barry Richard oge de Burgo, Geffrey de Laund, John Roche de Fermoy, Mathew Fitz-Henry, Thomas oge Botiller, Maurice D'Excestre. W r . Bermingham, of Athenry, Writs were also directed to the sheriffs of the counties of Dublin, Louth, Kildare, Clare, Catherlogh, Water - ford, Wexford, Cork, Limerick, and to the seneschals Y 2 324 IRELAND. of the liberties of Meath, Ulster, Kilkenny, Tipperary and Kerry, to cause two knights to be elected for each of their said counties and liberties, and the crosses or church- lands therein. Writs were also directed to the mayors and bailiffs of the cities of Dublin, Waterford, Cork, and Limerick, to elect and send each two citizens, and to the mayor and bailiffs of the town of Drogheda, and the sovereigns and provosts of the towns of Kilkenny, Ross, Galway, and Athenry, to elect and send each two burgesses. On the Close Roll of this year, 1 Richard II. is the fol- lowing entry : " Nomina et amerciamenta prelatorum et aliorum qui non veniebant ad parliamentum tentum apud Tristle- dermot, die lune proxima post festum cinerum, anno pre- senti, prout per breve domini regis habuerunt in man- datis, videlicet : Archiepiscopus Tuamensis, c. lib. Episcopus Imolacensis, c. marc. Elphinensis, c. marc. Alladensis, c. marc. Duacensis, c. marc. Gustos Episcopatus Rossensis, c. marc. Decanus, capitulus, et clerus Cashelensis, propter inhabilitatem procuratorum ad comparendum pro Us in eodem parlia- mento xl. solidos. Ricardus de Burgo, miles, x. marcas. Simon de Cusak, miles, xi. solidos. Walter de Bermingham, de Athenry, ... c. solidos. Milerus D'Excestre,. xi, solidos." RICHARD II. 325 It is not easy to account for the difference in the amount of the fines on these latter individuals, unless it arose from their having attended on some occasions during the ses- sion, and departed without permission, but this is mere conjecture ; there are not, I believe, any acts or ordinances of this parliament extant. A parliament was held in the third year of Richard II. in which a statute was enacted, granting to the king two thirds of the profits of all the estates, whether lands, rents, benefices, or offices, and all other possessions whatsoever in Ireland, of all persons who, without the king's license, re- sided out of Ireland, and compelling those who possessed castles or other fortresses, to have in them a garrison ca- pable of their defence, on pain of forfeiture. Young per- sons at school, the universities, or the inns of court, for instruction only, were excepted from the operation of this law. This act is frequently referred to in the subsequent records, but I have not been able to discover a perfect copy. Writs are on the Close Roll of the 4th year of Richard the Second, summoning a parliament at Dublin, to meet on Saturday, the morrow of All Souls. They are directed to R archbishop of Dublin, to appear in propria persona, and direct the dean and chapter to send two pToy.ies,concordandum,consentiendum,et consilium "oestrum impendendum. Similar writs were directed to the arch- bishop of Cashel, or his vicar- general, the archbishop of Tuam, the custodees of the spiritualities of the archbishop of Armagh, and the bishopric of Meath ; the bishops of Kildare, Leighlin, Ossory, Ferns, Lismore and Water- 326 IRELAND. ford, Cork, Limerick, Cloyne, Clogher, Ardfert, Killaloe, Emly, Elphin, Down, Killala, Kilmacduagh, Clonfert, Ross ; the bishops Cluaensis^* of Raphoe, BreiFny, and Derry ; the prior of St. John of Jerusalem, the abbots of St. Thomas, near Dublin, the Blessed Mary, Dublin, Mellifonte, Baltinglass, Dunbrody, Albu Tractu, and Magio, and the prior of Connall. The lay peers summoned were James Butler, earl of Or- Simon de Cusak, knt. mond, Walter de Cusak, knt. Gerald Fitz-Maurice, earl Hugh Byssett, knt. of Desmond, Henry Savage, knt. Maurice Fitz-Thomas, earl Thomas Tuyt, knt. of Kildare, Thomas Vernayle, knt. William de Loundres, krit. Edmund Hussee, knt. Thomas Fitz- John, knt. David de Barry, knt. Patrick de la Freigne, knt. Richard de Burgo, knt. Robert de la Freigne, knt. Similar writs were directed to the following persons, who were of the king's council : Robert de Preston, knt. Richard Plunket, John Keppok, John Tyrrell. Stephen Bray, And to the persons following : Maurice Fitz-Richard, Philip Fitz- William de John Roche, of Fermoy, Barry, Walter Bermingham, of Nicholas le Poer. Athenry, * Perhaps Clounis, in Monaghan. RICHARD II. 327 It is to be observed, that the members of the king's council in these lists are placed after those denominated knights, and before those not distinguished by that dig- nity, although barons of greater antiquity, which seems to indicate a precedence in consequence of knighthood. Writs were also directed to the sheriffs of the counties of Dublin, Kildare, Louth, Meath, Catherlagh, Wexford, Waterford, Limerick and Cork, and to the seneschals of the liberties, and sheriffs of the crosses of Meath, Ulster, Tipperary and Kerry, to elect and send two knights, and to the mayors and bailiffs of Dublin, Drogheda, Cork, Waterford, Limerick, and to the sovereigns of Kilkenny, Ross, Wexford, Youghal, and to the provosts of Galway and Athenry, to elect and send each two citizens or bur- gesses to the parliament. On the Close Roll of the 5th of Richard II. are enrolled writs of summons, dated 29th April, to a parliament to be held in Dublin, on Monday, after fifteen days of the Holy Trinity. The writ recites, that Edmund de Mortimer, the lord lieutenant, was dead, and that the king, being anxious to provide for the safety of the kingdom, had, by letters patent appointed Roger de Mortimer, earl of March, lord lieutenant, and desired him with all alacrity to hold a great parliament de prelates^ magnatibus, proceribus^ et communitatibus terrce. The first writ is to R. archbishop of Dublin, with the clause directing proxies for the dean and chapter and clergy of the diocese, having sufficient power, &c. Similar writs were directed to the archbishop of Tuam, the bishops of Kildare, Meath, Leighlin, Os- sory, Femes, Lismore and Waterford, Cork, Cloyne, Li- 328 IRELAND. merick, Ardfert, Killaloe, Emly, Elphin, Down, Connor, Ross, and to the custodees of the spiritualities of the arch- bishoprics of Armagh and Cashel ; to the prior of St. John of Jerusalem, in Ireland ; the abbots of St. Thomas the martyr juxta Dublin, of the Blessed Mary juxta Dublin, Mellifont, Baltinglass, Jerpointe, Albu Tractu, Magio, and the prior of Conall. The lay peers were James le Botiller, earl of Robert de la Freigne, knt. Ormond, Simon Cusak, knt. Maurice Fitz-Thomas, earl Walter Cusak, knt. of Kildare, Thomas de Vernayll, knt. Gerald Fitz-Maurice, earl David de Barry, knt. of Desmond, Hugh Byssett, knt. Wm. de Loundres, knt. Edmund Hussee, Thomas Fitz-John, knt. Richard de Burgo, knt. rick de la Freigne, knt. Similar writs were directed to those of the king's coun- cil, videlicet : Robert de Preston, knt. Richard Plunket, John Keppok, John Tyrrell. Stephen Bray, And to the persons following : Maurice Fitz-Richard, W.Berminghamof Athenry, John Roche of Fermoy, Philip Fitz- William de Nicholas le Poer, Barry. Writs were directed to the sheriffs of the counties of Dublin, Kildare, Louth, Catherlogh, Wexford, Waterford, Limerick and Cork, and to the seneschals of the liberties RICHARD II. 329 of Kilkenny, Meath, Ulster, Tipperary and Kerry, and the sheriffs of the crosses of the same, to elect and send two knights, and to the mayors and bailiffs of Dublin, Drogheda, Cork, Waterford, Limerick and Kilkenny, and the sovereign and provosts of Ross, Wexford and Youghal, and the provosts and bailiffs of Galway and Athenry, to elect and send each two citizens, or burgesses, to the said parliament. I have not been able to find any of the statutes or or- dinances of this parliament on record, but a document en- rolled on the Plea Roll of the 5th of Richard II. referring to this parliament, shows the accuracy and anxious at- tention to form and precedent which marked its proceed- ings, viz: " Dominus rex mandavit, &c. in haec verba Ricardus dei gratia rex,&c. Inspeximus quandam petitionem quam prelati, magnates, et communitas terras nostrae Hiberniae, in parliamento nostro apud Dubliniam, die lune proxima post quindenam Sanctae Trinitatis, proximo preterito, sum- monito et tento, comparentes fieri et in eodem parliamento ostendi et perlegi fecerunt in haec verba : " The prelates, lords, and commons of the land of Ire- land, being summoned by writ, to be at a parliament at Dublin, in fifteen days of Trinity, in the fifth year of the reign of king Richard the Second, at which day and place were assembled the prelates, lords, and commons aforesaid, and were informed that (Roger de Mortimer, earl of March, &c.) the lieutenant of our lord the king was so much indisposed that he could not in his own person 330 IRELAND. be present to hold the parliament ; upon which the assem- bly declared their opinion, that that meeting could not be properly considered a parliament. That, in all times within memory, from the conquest of the said land, there had been seen no parliament which had not been held in the presence of the chief governor for the time being. And that it might be objected, that to hold par- liaments according to the form abovesaid, without the chief governor of the said land being present, in divers and many ways may be to the prejudice of the lieges, and the disherison of the prelates, their successors and their churches, and to the lords, and their heirs, and also to all the commons. They, therefore, made protestation that they were unwilling, nor would accept that as the legal manner of holding parliaments, without the presence of the chief governor of the land, nor should it be made or held as a precedent hereafter. Nevertheless, the said prelates, lords, and commons, out of their reverence to our lord the king, and the lord lieutenant, and that it imports the safety of his estate, and a notable or urgent cause being given for the absence of the lord lieutenant, and for the great necessity, perils, losses, and mischief, in which the said land is placed, agree and consent, that this pre- sent assembly shall be held for a parliament, and all things in their affairs, treaties, and agreements, shall be held and established, according to the tenor of the writs there- upon done. Demanding and saving, nevertheless, to them, their successors and heirs, and to the commonalty afore- said, their franchises, usages, and liberties, and their pro- testations aforesaid had, and also requiring the same, their protestation should be enrolled, and put on record in the chancery of the king, and that an exemplification RICHARD II. 331 thereof should be made under the great seal, as witness of the aforesaid thing in time to come."* " Nos autem petitionem et indorsamentum predictum, de avisamento consilii nostri in Hibernia, ad requisitionem dictorum prelatorum, magnatum, tenore presentium duximus exemplificandum. In cujus rei tes- timonium has literas nostras fieri fecimus patentes. Teste Rogero, filio et heredi Edmundi de Mortuomari, nuper comitis Marchise et Ultoniae, locum nostrum tenente terrae nostrae Hiberniae, 23 Junii, a. r. n. 6to." " It is accorded by the council of our lord the king, that this petition and protestation be enrolled and exem- plified according to the purport of the pe- tition, saving always the rights and prerogative of the king in time to come." This document illustrates a point of constitutionaljlaw, as well as the customs and practice of the ancient par- liaments ; the king previously to the 9th of Henry IV. .* "* " Itm for as myche that divs men of this land, of malice and il will, have maad unto you our sov r aygne lord, and to your wise counsell there, div r se feyned sug- gestyons of your lieuten^ts, justices, and otheres estates of your sayd land, whiche suggestions have nether come to you, nethir to your said counscill, by auctorite of your parlements, ne counscils here, ne under autentikes seales, or seales of the estates of this land, when parlements or eounscilles have not be, for the grete myschiefe that this land hath stouden ynne, but by by lies and naked language. We beseche you that such simple suggeston hereafter be not levyd, but that such suggestion makers finde sufficiant suerte to stand by thire suggestions, and thenne thire said suggestions be send hither to your counseill here, they duly mo to be examyned in the next parlement, or greit counseill here, and, aft r that examynacion, ye and your said counseill ther of the trouthe, under your grete seall HENRY VI. 355 here, to be c r tified, and there opon to procede as reson requeryth; consideryng that light levyng of such bylles and suggestions often tytnes have causyd greet hyndryng and hevynesse to your said land here. " Itm that there div r s clerkes, merchantz, and othere honeste persones out of your land here, hav travailled yn your land of England, there from Chester to Coventre, Oxenford, and London, now late ben robbed of thire hors and goodes, and thire bodies taken and put in warde, and some beten ; we beseche you, that such mysgov r naunce be restreined and chastised. Sithe that we ever have and shall be your trewe liege men, and myche sorrow suffre from day to day, here of yo r enemyes for yo T sake, thogh we haye none there. " Itm we beseche you, that ye best consider the true and notable s r vice that James, your erle of Ormond, hath done unto yo r g a ndsire, fadyr, and un to you at al tymes hereafor, and namely, when this land hath stoude at most myschief and at poynt of lesyng, and that ye luste have hyme recomended and thankyd for the relevyng and savyng ther of and of us, causyng hym to continue his said true and diligent labo r forth hereafter ; and that he may be paied of that that is owing him for the kepyng of this yo r said land, while he had gov r naunce ther of, as wel in yo r fader tyme as youres, of that is owyng hym, that he may paie the peple, consideryng that he hath had here afor, and now sithe yo r said lieuten a nt came over the see, grete costes and charges a boute your s r vice and his, yn resistyng of your enemyes, and that ye best consider also how that his last absence and long tarying out of this Aa2 356 IRELAND. land, causid your enemys to be the bolder to go to werre, and your liege peple myche abasshed and foblied ther by. " Itm that yo r lieuten'nt, or depute, for the tyme beyng, may geve benefyces, consideryng that, whenne thay ben long voide, Irish men occupieth tham for lakke of Engleish men> havyng poer for y r lawes of this land, beyn at al tymes used, that wod benefice be give to on Irisshe man, that benefice y s voide and stant in yo r geft for that tyme; and, for as moche, that no man in this land hath power to give benefices y l longith to your geft ; and also ye benefices her beyn of litill value, yat no man sueth to yo r lordship to have hem. The which men occupieth them forthe as shold Inglishmen, ye which is a great hin- deryng to yo r said land. " Itm that ye wolde graciously consider and punysshe the despite that was done to yo r messagers Henry For- tescu, your chief justice, and Sir James Alleyn, knynght, send from us, yo r liege peple of this land, to your royall magest to c r tifi you of the estate and compleyntes of your said land, the which sholde be goyng and comyng, and werev r at that tyme undyr yo 1 g a cious proteccion, for yo r liege peple here, supposyn that the diservis that is doyn to thaym, goyng in to your reame of England, is doyn by boldenes that hit was not punysshed. " Itm that ye wolde graciously ordeyne, that all the lieuten a ntZj and thar deputes, of your faders and yours, make payement to yo r liege people her for thaym and soudio's. Consideryng, gracious lord, that the defaut her of have be a grete hunderyng and empov r isshing to yo T HENRY VI. 357 said lieges, and if it be remedyet wel be a grete relevyng of thaym. " Itm forasmoche as your lawes of this land, in ev r y of yo r co r tes, at all tymes have beyn used, bothe in pledyng and judgements givyng, after your lawes used in Englond, and the lerned men here yo r saide lawes lernet in Innes of Co r t, in youre realme of Englond, in to nowe late that ther beyn refused to be had in Innes of Courte, contrarie to that, that hath be used afor this tyme ; we byseche you that ordeyn a ncez be made there, that yo r liege people of this land, that comyth thedir for their said lernynge, may be resceyvet into Innes of Co r t, as they have be" of holde tynis, so that yo r lawes in this land may be contynuet forth, considerynge yat ellys whan these y' nowe beyn here lernet beyn dede, there shal be none in this land that shall canne yo r lawes, lasse than it be lernet there, the which will be a greet disprofite for you, and grete hynderyng for us your poure lieges. " Also, that the g'cious answers that were given by thavyse of yo T said consaill thereunto, the said Henry Ffortescu, and James Alleyn, knyght, messagers, for yo r said land, might be put in due execucion, accordyng to the same answers, for the grete availe of you, oure soveraigne lord, and in conforte of us your liege people here. " And at the special request of us, the Right Rev r ent fader in God, Richard, erchebisshop of Dyvelyn, yo r chancellor in yo T said land, your grette scale of yo r said land, to this our instruction of oure message hath sette unto. Written at yo r said cittee of Dyvelyn, the saide Friday next, aft r al halwen day." 358 IRELAND. " To our sovraigne and gracious liege lord the kyng of England and of Ffrance, and lord of Irlond. " Sov r aigne and gracious lige lord, to yo r heighe and roial majeste, with al man r e of humilite and obeisaunce, we us do recomaunde, and of your benyge tendryng of our grevous and hevy compplentz of the mischiefe we yo r humble lieges, the lattist yere, arid your land here, stodyn ynne, and of yo r gracious confort, that ye hastily send un to us John Sutton, knyght, yo r lieuten a nt, for our heighe relevyng, we thanke you with al our hole hertes, besechyng you of yo r godde and g a cious continuaunce, and of al our other matters that we have to acerte your said royal ma- giste. We yo r saide humble liges, at your parlement lattist holden at yo r cite of Dyvelyn, and for your saide lieute- n a nt, the friday next, aft r al halwen day, of this yo r said land, has chosen Henry Fortescu, yo r chief justice of your chief place in yo r said land, and Thomas Strangge, knyght, our messag's, by us sent un to you, to approche yo- heighe p r sence, our said mat's in an instruccion under yo r grete scale of your said land enseled conteyned, you to declare and deliver besechyng you our said message's and message benyngly receyve, and tham feith and gredence geve, and to the articles in our said message conteyned gracious aun- sweres, purvey, and esploite, in al goodly haste, by thavyse of yo r wirshipful and wyse consey'ther, to youre p fite, and comfort of us yo* true liege men here, and al myghty God gif you god life and victorye of yo r enemyes. Written at yo r said cite of Dyvelyn, the said friday next, aft r al halwen day, and at the special request of us, yo r said lieges the righ reve r nt fadyr in God, Richard, archebisshop of Dyvelyn, yo r chauncello r of yo r said land, y l one ptie of your grete seale of yo r said land to this p r sent ble hath set unto. By HENRY VI. 359 yo r humble lieges y* lordes spirituell and temp r ell and coes of yo r lond of Irland."* 1430. A parliament was held this year in Dublin, before Richard, archbishop of Dublin, as appears by the following extract, from the account of Sir James Whyte, seneschal of Ulster, before-mentioned, but there are no rolls of its proceedings : " Episcopus Conerensis 100 marcarum, quia summoni- tus, non venit ad parliamentum domini regis tentum apud Dublin, coram venerabili in Christo patre, Richardo, archiepiscopo Dubliniensis, justiciario domini regis terrse suae Hiberniae, die veneris proxima ante festum Sanctse Trinitatis, anno predict! regis nono. " Episcopus Dunensis, 100s. pro eodem. " Deriensis, 100s. pro eodem. " Superior et prepositi de Galwey, 10, quia non re- tornant breve domini regis ad parliamentum predictum. " Superior et prepositi de Athenry, W. pro eodem." 1431. A parliament was held in the 10th year of Henry VI. a roll of the proceedings of which is in the rolls office, containing seven acts, not one of which is printed in the authorised edition of the statutes. 1435. In the 14th year of Henry VI. Sir Thomas Stanley being lord lieutenant, the privy council wrote a letter by him, who went over with another representation of the state of the country, to the king from the parlia- ment, which depicts strongly, and in forcible language, .'/ . H "-si > ' .:?. )>?;: > l ~'ittfM|i * This letter is placed on the roll after the statement of grievances, although intended to introduce the messengers to the king. 300 IRELAND. the melancholy state of affairs : the letter arid the repre- sentation are both enrolled on the Close Roll of Ireland, and are as follows : " Litera Missa Regi. " Most soverayn and gratious lorde, we recomaunde us unto youre hye lordeship, as lowely as we can or may ; and, gracious lorde, plese it unto your hye lordeship to wite that youre trewe knight, Thomas Stanley, youre lieutenant here, comes at this tyme unto youre gracious presence, for diverse notable matters th.at touchen the estate of youre lande here, and to pursue unto youre grace for the paiement that is due unto hym for the kepyng of the same, and to have notice how it plese to youre hye lordeship to make ordennance by the advys of youre worthy counseill, in whate wyse he shall be ordeyned, for from hensforth of his paiement duryng his terme to that ende, that he mow be the better proveided to supporte his charge that ye have commaundyd him with, as of the kepyng of the saide lande. Besechyng yovv of youre hye grace to have youre saide trewe knight specially recom- mendyd unto youre hye lordeship for his good governaunce and manfull labour that he has don and made here, as well amonge youre trewe peple as upon youre enemys, and such pourveiaunce make for his paiement, that he mowe the more hastily repaire hider, in salvacion of youre saide lande from the daunger of youre enemys, and in comfort of youre trewe peple in the same, gifling unto hym gra- cious and faithfull audience iu all such matters as he woll declare thereine, touching the estate of youre lande, to foresaide most soverayn, &c. " John, ercebisshop of Ardmagh, " Richard, ercebisshop of Dyvelyn, HliNllY VI. 361 " Thomas Strange, knight, deputye to the chaticellour, aud tresorer, " Xpofre Bernevale, chief juge of the Kinges Bynche, . " John Blakeney, the chief justice of the Common Place, " James Cornwalsh, chief baron, " William Chyvers, secondarie justice of the Kynges Bynche, and all the remnant of youre counsell in Irelande." " Thies ben the articles of the message of Irelande. "First, that it please oure sov r aigne lorde, graciously con- siderer how that his lande of Ireland is welnegh destrued, and inhabytyd with his enimyes and rebelx, ia so mocb, that y r is not left in the nethir parties of the countees of Dy velyn, Mith, Loueth, and Kildare, that yoynyn to gadyr, oute of the subjection of the saide enemyes and rebelx, scarisly xxx miles in lengthe and xx mile inbrede ther, as a man may surely ride other go, in the saide countees, to answerre to the kynges writtes and to his cemmandeiBents. " Also, the countee of Catherlagh, in the south west partie of the citee of Dyvelyn, within this xxx. yere, was oon of the keyes of the saide lande, mydway betweene the saide citee and the out parties, that is to say, the coun- tees of Kilkenny and Tiperarie ; aud the province of Gas- shell, also is inhabityd with enemyes and rebelx, save the castels of Gather lagh and Tillagh; and within this Ix yere y r were in the saide countee of Cathirlagh, cxlviii castelx and pyles defensible, well voutyd, bataylled, and inha- bityd, that now ben destrued and under the subjection of the saide enemyes. " Also the countees of Kilkenny, Weisford, Water-ford, 362 ICELAND. Cork, Limerick, Tiperarie, and Kery, in the oud r parties of the said lande, ben so destrued and oppressed with ene- myes and rebelx, that the fewe leige pepull dwellyn in thamn ben not sufficiaunt to vitaill the citees of Water- ford, Cork, and Limeryk, the wich ben sette upon the see coste, neth r the walled towns of the said eountees, yat is to say Kilkenny, Rosse, Weysford, Kynsale, Yoghill, Clon- mell, Kilmahallok, Thomastown, Carryk, Fithard, Cashell, and many other, wherthrugh the said eountees and walled townes ben in the poynt to be enfaymed, and namely, the citee of Waterford, to likelye desolacion of tham in shorte tyme, that God defend. chivaler, " Christopher Plunket, chivaler, " Robert Dovedale, chivaler, " Nicholas Strangways, esquire, " John Capron, " Nicholas Heredeman, esquire and many others." This lordship of Kells in Ossory was a title in fee, ac- quired by Robert Preston, the great grandfather, men- tioned in the foregoing act of parliament, by marriage with Margaret, daughter of Walter Birmingham, lord of Kells in Ossory, and sister and heiress of his son Walter Birmingham, lord of Kells, who died without issue, who was mother of Christopher Preston, lord of Kells, and grandmother of Christopher Preston, lord of Kells, father of Robert, the petitioner, who, in her right, became lord of Kells in Ossory. This title could not have reference to the tenure of the manor of Kells, which having escheated to the crown by forfeiture, had been granted to the said Walter de Ber- mingham for life, and after his death to James, earl of Ormond, for life also, nor was it in the possession of the Prestons, at the passing of the act of Edward IV. there- fore, it must have been a mere personal dignity, originating in the summons and sitting in parliament of Walter de Birmingham, by that title, in the reign of Edward the Third. The escheator's account on the great roll of the Pipe of EDWARD IV. 373 Ireland, of the 35th year of king Edward the Third, proves the marriage of Robert Preston, with Margaret, sister and heir of Walter de Birmingham, and a patent of the 25th of Edward the Third, proves the grant of the manor of Kells to Walter de Birmingham, knt. for life, and after his death, to James earl of Ormond. The annexed pedigree shews the descent of the peerage of Kells, from the Birminghams to the Prestons. It may also be observed, that Sir Robert Preston, knt. lord chief justice of the court of Common Pleas, was the first lord of Gormanstown, having purchased the manor of Gormanstown from Sir Almaric de St. Amand, in the year 1363. He was an Englishman, and the first of his family who settled in Ireland, was often summoned to parliaments and great councils, as a privy councillor, and afterwards, after his marriage, as a peer. This evidence clearly negatives the alleged antiquity of the palatine barony of Slane, as a peerage, and shows that Baldwin le Fleming, who was summoned to parliament 3 Edward II. never took his seat, and that Simon le Fleming was really the first lord of parliament of the family of Fleming, or he would not have been puisne to Walter de Birmingham, lord of Kells. 374 IRKLAND. JAMES de Birmingham= Peter de Birmingham, lord of Thetmoy=Ela de Oding- or Monasteroris, in Kildare. sells. John de Birmingham, eldest William de Birmingham,^ son and heir, created earl of third son, attainted and Louth by Edward II. left three executed, daughters his coheirs. Walter de Birmingham, restored,= Elizabeth Multon, had a grant of the manor of Kells in Ossory for life ; summoned to parlia- ment as lord of Kells, lord lieutenant of Ireland. Died 29th July, 1350. daughter and coheir of John, lord Egre- mont,relictof Robert de Haverington. 1 Walter de Birming- ham, lord of Kells, only son and heir; died with- out issue. Sir Robert de Preston,= lord of Gormanstown in Meath, lord chief justice of the common pleas. = Margaret, only daugh- ter, heir to her brother. Christopher Preston, lord of Gormanstown in right of his= father, and of Kells jure matris. Sat in Parliament. | Christopher Preston, lord of Kells and Gormanstown= Robert Preston, lord of Kells and Gormanstown, 2 Edw. IV. The peerage of Gormanstown was puisne, but that of Kells was senior, to Slane, and, therefore, the parlia- ment decreed the precedence to Preston, as lord of Kells, which he inherited as heir general to his mother, both, consequently, were titles in fee descendible to heirs ge- neral. David, lord Slane, was himself a peer by a recent sum- mons, not being heir general of his great grandfather, who EDWARD IV. 375 was the first that sat in parliament, for his half brother John, left a son, who died without issue, and two daugh- ters, who became coheirs of their brothers, between whom the original title went into abeyance. But David, lord Slane, being related to the duke of York, and to king Edward IV. through the Genevills, had the old precedence allowed him. 1463 A parliament was summoned to meet at Wex- ford, on Friday after the feast of St. Martin, the bishop, 3 Edward IV. 1463, before Thomas, earl of Desmond, deputy to George, duke of Clarence, lord lieutenant, where it met, and adjourned to Waterford, and met there on the Thursday following, and continued till the Monday after, when it adjourned to Saturday, the feast of St. Edmund the king, at Naas, and afterwards to Dublin, on Monday after the feast of St. David the bishop, where its sittings ended the Saturday following. The roll of the proceed- ings of this parliament is extant, and contains one hun- dred and nine statutes. Chapter four, is an enactment of the privilege of parliament, " That every member, as well lords, proxies, and commons, be discharged, and quit of all manner of actions, had, or moved against them, or any of them, during forty days before and forty days after every parliameut, and this to endure for ever." There are but three of the acts printed in the authorised edition of the statutes. The greater proportion of the unprinted acts are private, conferring livery or rectifying mistakes, or informalities in suing out livery, granting wardships, or other matters concerning estates. 1465 Thomas, earl of Desmond, lord deputy, held a 376 IRELAND. parliament at Trim, on Wednesday after the feast of St. Lawrence in this year. The roll of the enactments is in the rolls office, and contains seventy-seven statutes, enacted in three sessions, of which but six are printed. 1467 John, earl of Worcester, lord deputy to George, duke of Clarence, held a parliament at Dublin, which was divers times prorogued ; the roll of its proceedings is in the rolls office, and contains eighty-four statutes of six sessions, four of which are printed in the authorised edi- tion. Among the unprinted public acts is an act of re- sumption of the grants of land made during the reign of Henry the Sixth ; and another authorising the lord lieu- tenant to appoint a seneschal to the palatine liberty of Meath, which had merged in the crown by inheritance. The others are private acts correcting errors in livery, &c. 1467- A parliament was held at Drogheda, on Monday after the feast of St. Michael, its enactments are enrolled on the preceding roll, only two of its statutes are printed. Among the unprinted statutes is one enacting, that the palatine liberty of Meath should continue, notwithstand- ing it had merged in the crown. 1469. A parliament was held in this year ; the roll of its proceedings is extant, but none of the statutes thereon have been printed. 1471. Thomas, earl of Kildare, deputy to George, duke of Clarence, lord lieutenant, held a parliament which met at Naas, on Friday after the feast of St. Andrew, and was aftenvards prorogued to Dublin. The roll of its sta- EDWARD IV. 377 tutesare extant, and contains ninety-one enactments, three of which are printed. 1 474. A roll of the statutes of a parliament held in this year, is in the rolls office, and contains twenty-four acts, none of which have been printed. 1475. William, bishop of Meath, deputy to George, duke of Clarence, lord lieutenant of Ireland, held a par- liament at Dublin, on Friday after the feast of St. Mar- garet, the virgin, a roll of the statutes whereof is in the rolls office, and contain ninety-two acts, of which but one is printed. 1477- A roll of the statutes enacted in the parliament of this year is extant, containing fifty-five acts, of which none have been printed. Gerald, earl of Kildare, lord justiciary of Ireland, held a parliament at Naas, on Friday before the feast of St. Petronilla, the virgin, which was prorogued and adjourned various times. Three rolls of the statutes whereof are extant, containing forty-seven enactments, two of which only are printed. Chapter five, is an act repealing and annulling certain statutes of former parlia- ments, the precise terms of which were not known, which ordained, " That no manner of man should be admitted as proxy into any parliament for any clergy, if he were not beneficed within the diocess, nor knight for a county, if he were not dwelling within the said county, and might dispend forty shillings within the said county yearly, or citizen for a city, nor burgess for a town, unless he were Dd 378 IRELAND. dwelling in the said city or borough." This statute enacts that the statutes hereafter made in parliament shall be good and valid, although the proxies, or representatives, be not so qualified. 1479. There is in the rolls office a roll of sixteen sta- tutes, enacted in the 19th of Edward IV. 1480. Gerald, earl of Kildare, deputy to Richard, duke of York, lord lieutenant, held a parliament at Dub- lin, on Monday, next after the feast of the translation of St. Thomas the martyr, the roll of the proceeding of which contains sixty statutes, only one of which, laying a duty on hawks exported, is printed. There is a roll endorsed as of the 21st of Edward IV. in the rolls office, but it is a matter of doubt, if it be of that year ; it contains an act of resumption. The following letter from king Richard the Third, settles the period of the commencement of his reign, it is enrolled on the memorandum roll of the exchequer of Ireland : " Richard, by the grace of God, king of England and of Ffrance, and lord of Ireland, to all oure subgietts and liegemen within oure land of Ireland, hering or seing these oure letters, greting. Fforasmuch as we are enfourmed that there is grete doubte and ambiguyte amoung you for the certaine day of the comensing of our ragne. We sig- nifie unto you for the trouthe that, by the grace and suf- feraunce of oure blessed criatour, we entred into oure just title, taking upon us oure dignitie royall and suppreme RICHARD III. 379 governaunce of this oure royms of England, the xxvi day of Juyn, the yere of our Lord M,CCCC,LXXXIII. and after that we woll that ye doo make all writing and records among you. Yeven, under signet, at our castell of Notingham, the xiith day of Octobre, the second yere of our reigne." There are none of the statutes of Richard the Third printed, but there are two rolls of statutes of the par- liaments of his first and second years in the Rolls Office, that of the first year containing twenty-seven acts, that of the second seventeen. In the second year the act passed, in which the statute of Henry Fitz Empress is recited.* Earls of Kildare, were lord deputies during this and the preceding reign, and exercised the royal power according to their will, summoning parliaments which ^enacted laws of a very singular and extraordinary character ; among others an act was passed that the corporation and men of the town of Ross, might reprize themselves against rob- bers, in other words, might rob the innocent to in- demnify themselves for having been previously plundered. Similar acts were passed for the citizens of Dublin, who were thereby authorized to reprize themselves by seizing the persons and goods of all English subjects ivhat- ever, except certain individuals mentioned in the act, and English merchants then in Dublin were allowed a cer- tain time to remove themselves and their property from Ireland. * See page 299. 380 IRELAND. As these acts are curiosities, and so clearly demon- strated the necessity for the enactment of Poyning's statute, which, \rithout such an explanation, is scarcely to be credited, translations are annexed. Among the statutes passed in the parliament, held at Naas, on Friday, after the feast of St. Andrew the apostle, before Thomas Fitzmaurice, earl of Kildare, lord deputy to George, duke of Clarence, &c. &c. in the 12th year of king Edward the Second, A. D. 1473, is the follow- ing, cap. 47 : " Prayen the Commons Whereas, the merchants of the city of Dublin, as well as those of Drogheda, have for time beyond memory gone to the noble realm of England, to practice their merchandize, remaining there buying and selling, and were reputed and considered Englishmen, and faithful liegemen of the king, and had liberty to go and return at their will. But that lately certain merchants of the same, who were waiting' at Chester, and other places in England, with their wares and merchandize, were arrested and taken and remain in custody, without reasonable cause, to their great costs and loss unless they be graciously redressed. Whereupon the premises tenderly considered, it is enacted, ordained, and established by authority of parliament, that it shall be lawful for the friends of every person going into Eng- land, and returning out of the same, who is arrested or taken, or shall hereafter be arrested or kept at Chester aforesaid, or at any other place in England, for any fault or misdeed committed in fact, or surmised to be committed, by any other person of this land, of whatsoever estate and IRELAND. 381 condition he be, to take any merchant or person of the said realm, that to them shall seem best, being within the said city or town, or in any other place within the said land, and them to retain until the merchant or person of the said city, town, or place, or any of them so arrested, kept, or taken, be absolutely delivered to their liberty and will. Provided that the merchants of England who are now in this land, slwll have time of respite to withdraiv themselves and their goods, that is to say, between this and the feast of the apostles, Philp and James, next ensuing" The following act is not to be found on the Rolls of Parliament, but an exemplification under the Great Seal of Ireland, and teste of Gerald, earl of Kildare, deputy to Jasper, earl of Pembroke, lord lieutenant, is entered in the " Domesday Book of Di/velyn Cytye" A record in the possession of the Corporation of Dublin, dated 5th June, 2 Hen. VII. in these words : " Henry the Seventh, &c. king of England and lord of Ireland, &c. to all, &c. greeting. We have inspected a certain act of our parliament, held at Dublin on Friday next, after the feast of St. Katharine the virgin, last past, before Gerald, earl of Kildare, deputy to our dearly be- loved uncle, Jasper, earl of Pembroke, our lieutenant of our land of Ireland, which act being in the French lan- guage, we have caused to be translated (into Latin). " Item. At the humble supplication of the mayor and all the'J. king's inhabitants of Dublin, whereas the said mayor, citizens and inhabitants, carry on great merchan- dize and trade in the kingdom of England, and beyond 382 IRELAND. the said kingdom, from the land of Ireland, to the great benefit and advantage of the same, and so it is that the said mayor, citizens and inhabitants, have been often robbed and despoiled of their goods against all law and conscience, as well lately John Odeinport, Robert de Irland, Thomas de Ebes, and William de Hiborn of Li- verpool, in the county of Lancaster, went with force and arms to Wirrall, in the said kingdom, and there robbed and spoiled Robert Lawless of Dublin, merchant, of his goods to the value of one hundred marks, and Reginald Talbot, of goods to the value of forty pounds. And also the people of Yorkshire, took from Richard Bruyn, John Clerk, and the Baron of Skryne, goods to the value of forty pounds. Also Leo Hoknatt, of Wirrall, in the county of Chester, with divers others of the said counties of Lancaster and Cheshire, robbed and despoiled William Brown, Patrick Mele, John Pelet, Robert Forster, and divers others of the citizens and inhabitants of the said city of their goods and merchandize to the value of twenty pounds, and threatened to kill them, calling them false herlottes and Ireshe knaves, to their great [injury and damage, and extreme annihilation and debilitation of the said mayor, and divers of the said citizens and inhabitants, and all others in future, unless that immediate, direct, and due remedy be quickly had in this behalf. Upon consideration of the premises, and also that the said Robert Lawless took proceedings to prosecute, accord- ing to due form of law, the said malefactors, and could obtain no remedy, upon which he laboured for a remedy from the king's good and royal favour, praying that he would command that the nobles on the coasts should dis- train the robbers, and make full restitution to the said IRELAND. 383 Robert of his goods as before recited, to which they were disobedient, and restored nothing to the said Robert. " Therefore be it enacted, and established by the au- thority of the said parliament, that from the feast of St. John the baptist next ensuing, it shall be lawful to the said mayor, citizens and inhabitants, and every of them, to at- tach, and arrest any person or persons of the said kingdom of England, and all places in obedience to the royal au- thority thereof, as well for the future as the past, for any offences committed, or hereafter to be committed, and like- wise to arrest their bodies and goods wherever they be able to find them, as well within franchises as without, and them to keep under the said arrest until the said mayor, ci- tizens and inhabitants, and every of them have and receive full restitution of their goods, and compensation for their losses. And if any person or persons, whatsoever be their state or condition, shall help, support, maintain, or colour, any person or goods of the said kingdom, by which the said mayor, citizens, or inhabitants of any of them shall, or may be injured against the meaning of this act or or- dinance, so that they cannot, or shall not be able to draw benefit from the same, they shall forfeit two hundred pounds, one-half to the king and the other to the said mayor, citizens, and inhabitants, who shall be so injured and aggrieved, because that no protection or safeguard shall be held valid to any person against this act or ordi- nance. Provided always nevertheless, that this act or ordinance shall not extend, or be prejudicial, to John Vale of Coventre, merchant, John Gale of Wakefield, merchant, Thomas Hoggeson of the same, merchant, John Flacker of 384 IRELAND. Manchester, merchant, nor to Richard Beswick, junior, of the same, nor to their factors, attornies, goods, chatties, or warehouses, &c. or any of them for any offence before this time committed." We have, therefore, at the request of the said mayor, &c. exemplified this act or ordinance under our Great Seal, &c. Witness our aforesaid deputy at Dublin. 5th Jan. in the second year of our reign. These, and other acts of a similar nature and tendency, which went effectually to destroy the royal authority in Ireland, led to the sending over Sir Edward Poynings as lord-deputy, by Henry the Seventh, and the passing of the act afterwards known by the name of Poynings law, by which the parliament and government of Ireland were deprived of the power of originating any act, or bringing in any bill into either house of parliament, until the mea- sure had received the assent of the king in council in England, which continued to be the law of Ireland until the year 1783. The before-mentioned statutes which made it lawful for one part of the king's subjects to levy war against another part were also repealed, and the earl of Kildare was shortly after attainted and executed for high treason. The statutes passed during the reigns of Henry the Sixth, Edward the Fourth and Richard the Third, con- tain a very complete history of the transactions of the English government in Ireland for that period; even IRELAND. 385 the courts of law; required the assistance of parliament to enforce their decrees and, to compel the great proprietors to attend their summons, or the king's writs, acts were passed calling, by proclamation, for the attendance of individuals on pain of attainder or outlawry. In some parts of the country the law of England was altogether superseded, and the civil code substituted in its stead, and that law was administered by the mayor of Galway, in the name of God, so completely had the English power been enfeebled or set aside. In the 17th year of king Edward the Fourth, A. D. 1478, Jermyn Lynch, Goldsmith, complained to parliament that he had been sued by Walter White of Limerick, mer- chant, and Garrett Lewes, "before the sovereign and portrieves of Galway, by the civil law, and that on judg- ment they got possession of his premises in the town of Galway," whereupon, as there is no sheriff in the counties of Limerick or Connaught, nor any lettered man by which the law could be duly executed, William, son of Saunders Lynch, sovereign of Galway, John French, John Fitzwilliam Blake, and Thomas Blake of Galway, merchants, who had proceeded according to the imperial or civil law, and not according to the law of England, were by this statute required to appear in the court of King's Bench, with the records of their proceedings, or forfeit 10. for each offence. Henry the Seventh, however, introduced a better sys- 386 IRELAND. tern of administration, but the English power did not fully recover its stability till the reign of James the First. The greater part of the Irish chieftains acknowledged no superior but the sword, and no law but their will. THE END. THE LIBRARY UNIVERSITY OF CALIFORNIA Santa Barbara THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW. Series 9482 A 001 028 259 8