Chapter 13

[q]West's Inquiry. Prynne, who takes rather lower ground than West, and was not aware of Sir Henry de Bromflete's descent, admits that a writ of summons to any one, naming him baron, or dominus, as Baroni de Greystoke, domino de Furnival, did give an inheritable peerage; not so a writ generally worded, naming the party knight or esquire, unless he held by barony.[r]Lord Abergavenny's case, 12 Coke's Reports; and Collins's Proceedings on Claims of Baronies by Writ, p. 61.[s]Prynne's first Register, p. 232. Elsynge, who strenuously contends against the writ of summons conferring an hereditary nobility, is of opinion that the party summoned was never omitted in subsequent parliaments, and consequently was a peer for life. p. 43. But more regard is due to Prynne's later inquiries.[t]Case of Willoughby, Collins, p. 8; of Dacres, p. 41; of Abergavenny, p. 119. But see the case of Grey de Ruthin, p. 222 and 230, where the contrary position is stated by Selden upon better grounds.[u]It seems to have been admitted by Lord Redesdale, in the case of the barony of L'Isle, that a writ of summons, with sufficient proof of having sat by virtue of it in the house of lords, did in fact create an hereditary peerage from the fifth year of Richard II., though he resisted this with respect to claimants who could only deduce their pedigree from an ancestor summoned by one of the three Edwards. Nicolas's Case of Barony of L'Isle, p. 200. The theory, therefore, of West, which denies peerage by writ even to those summoned in several later reigns, must be taken with limitation. "I am informed," it is said by Mr. Hart,arguendo, "that every person whose name appears in the writ of summons of 5 Ric. II. was again summoned to the following parliament, and their posterity have sat in parliament as peers." p. 233.[x]Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, 424; vol. iv. p. 374. Rymer, t. vii. p. 161.[y]Selden's Works, vol. iii. p. 764. Selden's opinion that bannerets in the lords' house were the same as barons may seem to call on me for some contrary authorities, in order to support my own assertion, besides the passages above quoted from the rolls, of which he would naturally be supposed a more competent judge. I refer therefore to Spelman's Glossary, p. 74; Whitelocke on Parliamentary Writ, vol. i. p. 313; and Elsynge's Method of holding Parliaments, p. 65.[z]Puis un fut chalengé purce qu'il fut a banniere, et non allocatur; car s'il soit a banniere, et ne tient pas par baronie, il sera en l'assise. Year-book 22 Edw. III. fol. 18 a. apud West's Inquiry, p. 22.[a]Rot. Parl. vol. iv. p. 201.[b]Pinkerton's Hist. of Scotland, vol. i. p. 357 and 365.[c]The lords' committee do not like, apparently, to admit that bannerets were summoned to the house of lords as a distinct class of peers. "It is observable," they say, "that this statute (5 Ric. II. c. 4) speaks of bannerets as well as of dukes, earls, and barons, as persons bound to attend the parliament; but it does not follow that banneret was then considered as a name of dignity distinct from that honourable knighthood under the king's banner in the field of battle, to which precedence of all other knights was attributed." p. 342. But did the committee really believe that all the bannerets of whom we read in the reigns of Richard II. and afterwards had been knighted at Crecy and Poictiers? The name is only found in parliamentary proceedings during comparatively pacific times.[d]West, whose business it was to represent the barons by writ as mere assistants without suffrage, cites the writ to them rather disingenuously, as if it ran vobiscum et cum prelatis, magnatibus ac proceribus, omitting the important word cæteris. p. 35. Prynne, however, from whom West has borrowed a great part of his arguments, does not seem to go the length of denying the right of suffrage to persons so summoned. First Register, p. 237.[e]These descended from two persons, each named Geoffrey le Scrope, chief justices of K.B. and C.B. at the beginning of Edward III.'s reign. The name of one of them is once found among the barons, but I presume this to have been an accident, or mistake in the roll; as he is frequently mentioned afterwards among the judges. Scrope, chief justice of K.B., was made abanneretin 14 E. III. He was the father of Henry Scrope of Masham, a considerable person in Edward III. and Richard II.'s government, whose grandson, Lord Scrope of Masham, was beheaded for a conspiracy against Henry V. There was a family of Scrupe as old as the reign of Henry II.; but it is not clear, notwithstanding Dugdale's assertion, that the Scropes descended from them, or at least that they held the same lands: nor were the Scrupes barons, as appears by their paying a relief of only sixty marks for three knights' fees. Dugdale's Baronage, p. 654.The want of consistency in old records throws much additional difficulty over this intricate subject. Thus Scrope of Masham, though certainly a baron, and tried next year by the peers, is called chevalier in an instrument of 1 H. V. Rymer, t. ix. p. 13. So in the indictment against Sir John Oldcastle he is constantly styled knight, though he had been summoned several times as lord Cobham, in right of his wife, who inherited that barony. Rot. Parl. vol. iv. p. 107.[f]Blomefield's Hist, of Norfolk, vol. iii. p. 645 (folio edit).[g]Rot. Parl. vol. iii. p. 427.[h]Rot. Parl. vol. ii. p. 290.[i]vol. iii. p. 209.[k]Id. p. 263, 264.[m]vol. iv. p. 17.[n]Id. p. 401.[o]West's Inquiry, p. 65. This writer does not allow that the king possessed the prerogative of creating new peers without consent of parliament. But Prynne (1st Register, p. 225), who generally adopts the same theory of peerage as West, strongly asserts the contrary; and the party views of the latter's treatise, which I mentioned above, should be kept in sight. It was his object to prove that the pending bill to limit the numbers of the peerage was conformable to the original constitution.[p]Hody's History of Convocations, p. 12. Dissertatio de antiquâ et modernâ Synodi Anglicani Constitutione, prefixed to Wilkins's Concilia, t. 1.[q]2 Gale, Scriptores Rer. Anglic, t. ii. p. 355; Hody, p. 345. Atterbury (Rights of Convocations, p. 295, 315) endeavours to show that the clergy had been represented in parliament from the Conquest as well as before it. Many of the passages he quotes are very inconclusive; but possibly there may be some weight in one from Matthew Paris, ad ann. 1247 and two or three writs of the reign of Henry III.[r]Hody, p. 381; Atterbury's Rights of Convocations, p. 221.[s]Hody, p. 386; Atterbury, p. 222.[t]Hody, p. 391.[u]Gilbert's Hist. of Exchequer, p. 47.[x]Rot. Parl. vol. i. p. 189; Atterbury, p. 229.[y]The lower house of convocation, in 1547, terrified at the progress of reformation, petitioned that, "according to the tenor of the king's writ, and the ancient customs of the realm, they might have room and place and be associated with the commons in the nether house of this present parliament, as members of the commonwealth and the king's most humble subjects." Burnet's Hist. of Reformation, vol. ii.; Appendix, No. 17.This assertion that the clergy had ever been associated as one body with the commons is not borne out by anything that appears on our records, and is contradicted by many passages. But it is said that the clergy were actually so united with the commons in the Irish parliament till the Reformation. Gilbert's Hist. of the Exchequer, p. 57.[z]Hody, p. 392.[a]The præmunientes clause in a bishop's writ of summons was so far regarded down to the Reformation, that proctors were elected, and their names returned upon the writ; though the clergy never attended from the beginning of the fifteenth century, and gave their money only in convocation. Since the Reformation the clause has been preserved for form merely in the writ. Wilkins, Dissertatio, ubi supra.[b]Hody, p. 396. 403, &c. In 1314 the clergy protest even against the recital of the king's writ to the archbishop directing him to summon the clergy of his province in his letters mandatory, declaring that the English clergy had not been accustomed, nor ought by right, to be convoked by the king's authority. Atterbury, p. 230.[c]Hody, p. 425. Atterbury, p. 42, 233. The latter seems to think that the clergy of both provinces never actually met in a national council or house of parliament, under the præmunientes writ, after the reign of Edward II., though the proctors were duly returned. But Hody does not go quite so far, and Atterbury had a particular motive to enhance the influence of the convocation of Canterbury.[d]Atterbury, p. 46.[e]Rot. Parl. vol. ii. p. 64, 65.[f]18 E. III. stat. 3. Rot. Parl. vol. ii p. 151. This is the parliament in which it is very doubtful whether any deputies from cities and boroughs had a place. The pretended statutes were therefore every way null; being falsely imputed to an incomplete parliament.[g]Rot. Parl. vol. ii. p. 151.[h]25 E. III. stat. 3.[i]p. 368. The wordtheyis ambiguous; Whitelocke (on Parliamentary Writ, vol. ii. p. 346) interprets it of the commons: I should rather suppose it to mean the clergy.[k]50 E. III. c. 4 & 5.[m]Rot. Parl. vol. iii. p. 25. A nostre tres excellent seigneur le roy supplient humblement ses devotes oratours, les prelats et la clergie de la province de Canterbirs et d'Everwyk. Stat. 1 Richard II. c. 13, 14, 15. But see Hody, p. 425; Atterbury, p. 329.[n]Rot. Parl. vol. iii. p. 37.[o]It might be argued, from a passage in the parliament-roll of 21 R. II., that the clergy of both provinces were not only present, but that they were accounted an essential part of parliament in temporal matters, which is contrary to the whole tenor of our laws. The commons are there said to have prayed that, "whereas many judgments and ordinances formerly made in parliament had been annulledbecause the estate of clergy had not been present thereat, the prelates and clergy might make a proxy with sufficient power to consent in their name to all things done in this parliament." Whereupon the spiritual lords agreed to intrust their powers to Sir Thomas Percy, and gave him a procuration commencing in the following words: "Nos Thomas Cantuar' et Robertus Ebor' archiepiscopi, ac prælatiet clerus utriusque provinciæ Cantuar' et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes jus interessendi in singulis parliamentisdomini nostri regis et regni Angliæ pro tempore celebrandis, necnon tractandi et expediendi in eisdem quantum ad singula in instanti parliamento pro statu et honore domini nostri regis, necnon regaliæ suæ, ac quiete, pace, et tranquillitate regni judicialiter justificandis, venerabili viro domino Thomæ de Percy militi, nostram plenarie committimus potestatem." It may be perceived by these expressions, and more unequivocally by the nature of the case, that it was the judicial power of parliament which the spiritual lords delegated to their proxy. Many impeachments for capital offences were coming on, at which, by their canons, the bishops could not assist. But it can never be conceived that the inferior clergy had any share in this high judicature. And, upon looking attentively at the words above printed in italics, it will be evident that the spiritual lords holding by barony are the only persons designated; whatever may have been meant by the singular phrase, as applied to them, clerus utriusque provinciæ. Rot. Parl. vol. iii. p. 348.[p]Atterbury. p. 346.[q]21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. 47) led me to this act, which I had overlooked.[r]Rot. Parl. vol. iii. p. 582. Atterbury, p. 61.[s]The ensuing sketch of the jurisdiction exercised by the king's council has been chiefly derived from Sir Matthew Hale's Treatise of the Jurisdiction of the Lords' House in Parliament, published by Mr. Hargrave.[t]The words "privy council" are said not to be used till after the reign of Henry VI.; the former style was "ordinary" or "continual council." But a distinction had always been made, according to the nature of the business: the great officers of state, or, as we might now say, the ministers, had no occasion for the presence of judges or any lawyers in the secret councils of the crown. They become, therefore, a council of government, though always members of theconsilium ordinarium; and, in the former capacity, began to keep formal records of their proceedings. The acts of this council though, as I have just said, it bore as yet no distinguishing name, are extant from the year 1386, and for seventy years afterwards are known through the valuable publication of Sir Harris Nicolas.[u]Rot. Parl. vol. iii. p. 84.[x]Ibid. p. 266.[y]25 E. III. stat. 5, c. 4. Probably this fifth statute of the 25th of Edward III. is the most extensively beneficial act in the whole body of our laws. It established certainty in treasons, regulated purveyance, prohibited arbitrary imprisonment and the determination of pleas of freehold before the council, took away the compulsory finding of men-at-arms and other troops, confirmed the reasonable aid of the king's tenants fixed by 3 E. I., and provided that the king's protection should not hinder civil process or execution.[z]28 E. III. c. 3.[a]42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295. It is not surprising that the king's council should have persisted in these transgressions of their lawful authority, when we find a similar jurisdiction usurped by the officers of inferior persons. Complaint is made in the 18th of Richard II. that men were compelled to answer beforethe council of divers lords and ladies, for their freeholds and other matters cognizable at common law, and a remedy for this abuse is given by petition in chancery, stat. 15 R. II. c. 12. This act is confirmed with a penalty on its contraveners the next year, 16 R. II. c. 2. The private gaols which some lords were permitted by law to possess, and for which there was always a provision in their castles, enabled them to render this oppressive jurisdiction effectual.[b]Rot. Parl. 17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 H. VI. vol. iv. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. 403; 15 H. VI. p. 501. To one of these (10 H. VI.), "that none should be put to answer for his freehold in parliament, nor before any court or council where such things are not cognizable by the law of the land," the king gave a denial. As it was less usual to refuse promises of this kind than to forget them afterwards, I do not understand the motive of this.[c]Hale's Jurisdiction of Lords' House, p. 46. Coke, 2 Inst. p. 553. The last author places this a little later. There is a petition of the commons, in the roll of the 4th of Henry IV. p. 511, that, whereas many grantees and feoffees in trust for their grantors and feoffers alienate or charge the tenements granted,in which case there is no remedy unless one is ordered by parliament, that the king and lords would provide a remedy. This petition is referred to the king's council to advise of a remedy against the ensuing parliament. It may perhaps be inferred from hence that the writ of subpœna out of chancery had not yet been applied to protect the cestui que use. But it is equally possible that the commons, being disinclined to what they would deem an illegal innovation, were endeavouring to reduce these fiduciary estates within the pale of the common law, as was afterwards done by the statute of uses. [NoteX.][d]Rot. Parl. vol. i. p. 416.[e]L. ii. c. 2.[f][NoteXI.][g]This is remarkably expressed in one of the articles agreed in parliament 8 H. VI. for the regulation of the council. "Item, that alle the billes that comprehend matters terminable atte the common lawe shall be remitted ther to be determined; but if so be that the discresion of the counseill fele to grete myght on that õ syde, and unmyght on that other, or elles other cause resonable yat shal move him." Rot. Parl. vol. iv. p. 343. Mr. Bruce has well observed of the articles agreed upon in 8 Hen. VI., or rather of "those in 5 Hen. VI., which were nearly the same, that in theory nothing could be more excellent. In turbulent times, it is scarcely necessary to remark, great men were too apt to weigh out justice for themselves, and with no great nicety; a court, therefore, to which the people might fly for relief against powerful oppressors, was most especially needful. Law charges also were considerable; and this, 'the poor man's court, in which he might have right without paying any money' (Sir T. Smith's Commonwealth, book iii. ch. 7), was an institution apparently calculated to be of unquestionable utility. It was the comprehensiveness of the last clause—the 'other cause resonable'—which was its ruin." Archæologia, vol. xxv. p. 348. The statute 31 Hen. VI. c. 2, which is not printed in Ruffhead's edition, is very important, as giving a legal authority to the council, by writs under the great seal, and by writs of proclamation to the sheriffs, on parties making default, to compel the attendance of any persons complained of for "great riots, extortions, oppressions, and grievous offences," under heavy penalties; in case of a peer, "the loss of his estate, and name of lord, and his place in parliament," and all his lands for the term of his life; and fine at discretion in the case of other persons. A proviso is added that no matter determinable by the law of the realm should be determined in other form than after the course of law in the king's courts. Sir Francis Palgrave (Essay on the King's Council, p. 84) observes that this proviso "would in no way interfere with the effective jurisdiction of the council, inasmuch as it could always be alleged in the bills which were preferred before it that the oppressive and grievous offences of which they complained were not determinable by the ordinary course of the common law" p. 86. But this takes the word "determinable" to meanin fact; whereas I apprehend that the proviso must be understood to mean cases legally determinable; the words, I think, will bear no other construction. But as all the offences enumerated were indictable, we must either hold the proviso to be utterly inconsistent with the rest of the statute, or suppose that the words "other form" were intended to prohibit the irregular process usual with the council; secret examination of witnesses, torture, neglect of technical formality in specifying charges, punishments not according to the course of law, and other violations of fair and free trial, which constituted the greatest grievance in the proceedings of the council.[h]The judgment against Mortimer was reversed at the suit of his son, 28 E. III., because he had not been put on his trial. The peers had adjudged him to death in his absence, upon common notoriety of his guilt. 4 E. III. p. 53. In the same session of 28 E. III. the earl of Arundel's attainder was also reversed, which had passed in 1 E. III., when Mortimer was at the height of his power. These precedents taken together seem to have resulted from no partiality, but a true sense of justice in respect of treasons, animated by the recent statute. Rot. Parl. vol. ii. p. 256.[i]Rot. Parl. vol. iii. p. 427.[k]Blackstone's Comment. from Finch, vol. i. c. 7.[m]Letters are directed to all the sheriffs, 2 E. I., enjoining them to send up a certain number of beeves, sheep, capons, &c., for the king's coronation. Rymer, vol. ii. p. 21. By the statute 21 E. III. c. 12, goods taken by the purveyors were to be paid for on the spot if under twenty shillings' value, or within three months' time if above that value. But it is not to be imagined that this law was or could be observed.Edward III., impelled by the exigencies of his French war, went still greater lengths, and seized larger quantities of wool, which he sold beyond sea, as well as provisions for the supply of his army. In both cases the proprietors had tallies, or other securities; but their despair of obtaining payment gave rise, in 1338, to an insurrection. There is a singular apologetical letter of Edward to the archbishops on this occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col. 2570.[n]Rymer, t. vi. p. 417.[o]Idem, t. xi. p. 852.[p]Matthew Paris asserts that John granted a separate forest-charter, and supports his position by asserting that of Henry III. at full length. In fact, the clauses relating to the forest were incorporated with the great charter of John. Such an error as this shows the precariousness of historical testimony, even where it seems to be best grounded.[q]Coke, fourth Inst. p. 294. The forest domain of the king, says the author of the Dialogue on the Exchequer under Henry II., is governed by its own laws, not founded on the common law of the land, but the voluntary enactment of princes: so that whatever is done by that law is reckoned not legal in itself, but legal according to forest law, p. 29, non justum absolutè, sed justum secundum legem forestæ dicatur. I believe my translation ofjustumis right; for he is not writing satirically.[r]13 R. II. c. 2.[s]Rot. Parl. vol. iii. p. 530.[t]The apprehension of this compliant spirit in the ministers of justice led to an excellent act in 2 E. III. c. 8, that the judges shall not omit to do right for any command under the great or privy seal. And the conduct of Richard II., who sought absolute power by corrupting or intimidating them, produced another statute in the eleventh year of his reign (c. 10), providing that neither letters of the king's signet nor of the privy seal should from thenceforth be sent in disturbance of the law. An ordinance of Charles V., king of France, in 1369, directs the parliament of Paris to pay no regard to any letters under his seal suspending the course of legal procedure, but to consider them as surreptitiously obtained. Villaret, t. x. p. 175. This ordinance, which was sedulously observed, tended very much to confirm the independence and integrity of that tribunal.[u]Cotton's Posthuma, p. 221. Howell's State Trials, vol. iii. p. 1. Hume quotes a grant of the office of constable to the earl of Rivers in 7 E. IV., and infers, unwarrantably enough, that "its authority was in direct contradiction to Magna Charta; and it is evident that no regular liberty could subsist with it. It involved a full dictatorial power, continually subsisting in the state." Hist. of England, c. 22. But by the very words of this patent the jurisdiction given was only over such causes quæ in curiâ constabularii Angliæ ab antiquo, viz. tempore dicti Gulielmi conquæstoris, seu aliquo tempore citra, tractari, audiri, examinari, aut decidi consueverunt autjure debuerant aut debent. These are expressed, though not very perspicuously, in the statute 13 R. II. c. 2, that declares the constable's jurisdiction. And the chief criminal matter reserved by law to the court of this officer was treason committed out of the kingdom. In violent and revolutionary seasons, such as the commencement of Edward IV.'s reign, some persons were tried by martial law before the constable. But, in general, the exercise of criminal justice by this tribunal, though one of the abuses of the times, cannot be said to warrant the strong language adopted by Hume.[x]Fortescue, De Laudibus Legum Angliæ, c. 9.[y]Id. c. 13.[z]The latter treatise having been written under Edward IV., whom Fortescue, as a restored Lancastrian, would be anxious not to offend, and whom in fact he took some pains to conciliate both in this and other writings, it is evident that the principles of limited monarchy were as fully recognised in his reign whatever particular acts of violence might occur, as they had been under the Lancastrian princes.[a]The following is one example of these prejudices: In the 9th of Richard II. a tax on wool granted till the ensuing feast of St. John Baptist was to be intermitted from thence to that of St. Peter, and then to recommence; that it might not be claimed as a right. Rot. Parl. vol. iii. p. 214. Mr. Hume has noticed this provision, as "showing an accuracy beyond what was to be expected in thoserudetimes." In this epithet we see the foundation of his mistakes. The age of Richard II. might perhaps be called rude in some respects. But assuredly in prudent and circumspect perception of consequences, and an accurate use of language, there could be no reason why it should be deemed inferior to our own. If Mr. Hume had ever deigned to glance at the legal decisions reported in the Year-books of those times, he would have been surprised, not only at the utmostaccuracy, but at a subtle refinement in verbal logic, which none of his own metaphysical treatises could surpass.[b][NoteXII.][c]During the famous process against the knights templars in the reign of Edward II., the archbishop of York, having taken the examination of certain templars in his province, felt some doubts which he propounded to several monasteries and divines. Most of these relate to the main subject. But one question, fitter indeed for lawyers than theologians, was, whereas many would not confess without torture, whether he might make use of this means,licet hoc in regno Angliæ nunquam visum fuerit vel auditum? Et si torquendi sunt, utrum per clericos vel laicos? Et dato, quòdnullus omnino tortor inveniri valeatin Angliâ, utrum pro tortoribus mittendum sit ad partes transmarinas? Walt. Hemingford, p. 256. Instances, however, of its use are said to have occurred in the 15th century. See a learned 'Reading on the Use of Torture in the Criminal Law of England, by David Jardine, Esq., 1837.'[d]Rot. Parl. vol. iv. p. 65.[e]Rot. Parl. vol. iv. p. 202.[f]This was written in 1811 or 1812; and is among many passages which the progress of time has somewhat falsified.[g]Philip de Comines takes several opportunities of testifying his esteem for the English government. See particularly 1. iv. c. i. and 1. v. c. xix.[h]By a frankleyn in this place we are to understand what we call a country squire, like the frankleyn of Chaucer; for the word esquire in Fortescue's time was only used in its limited sense, for the sons of peers and knights, or such as had obtained the title by creation or some other legal means.The mention of Chaucer leads me to add that the prologue to his Canterbury Tales is of itself a continual testimony to the plenteous and comfortable situation of the middle ranks in England, as well as to that fearless independence and frequent originality of character amongst them, which liberty and competence have conspired to produce.[i]Brady's Hist. vol. i.; Appendix, p. 148.[k]Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. iv. p. 41.[m]If a man was disseised of his land, he might enter upon the disseisor and reinstate himself without course of law. In what case this right of entry was taken away, ortolled, as it was expressed, by the death or alienation of the disseisor, is a subject extensive enough to occupy two chapters of Littleton. What pertains to our inquiry is, that by an entry in the old law-books we must understand an actual repossession of the disseisee, not a suit in ejectment, as it is now interpreted, but which is a comparatively modern proceeding. The first remedy, says Britton, of the disseisee is to collect a body of his friends (recoiller amys et force), and without delay to cast out the disseisors, or at least to maintain himself in possession along with them. c. 44. This entry ought indeed, by 5 R. II. stat. i. c. 8, to be made peaceably; and the justices might assemble the posse comitatus to imprison persons entering on lands by violence (15 R. II. c. 2), but these laws imply the facts that made them necessary.[n]No lord, or other person, by 20 R. II. c. 3, was permitted to sit on the bench with the justices of assise. Trials were sometimes overawed by armed parties, who endeavoured to prevent their adversaries from appearing. Paston Letters, vol. iii. p. 119.[o]From a passage in the Paston Letters (vol. ii. p. 23) it appears that, far from these acts being regarded, it was considered as a mark of respect to the king, when he came into a county, for the noblemen and gentry to meet him with as many attendants in livery as they could muster. Sir John Paston was to provide twenty men in their livery-gowns, and the duke of Norfolk two hundred. This illustrates the well-known story of Henry VII. and the earl of Oxford, and shows the mean and oppressive conduct of the king in that affair, which Hume has pretended to justify.In the first of Edward IV. it is said in the roll of parliament (vol. v. p. 407), that, "by yeving of liveries and signets, contrary to the statutes and ordinances made aforetyme maintenaunce of quarrels, extortions, robberies, murders been multiplied and continued within this reame, to the grete disturbaunce and inquietation of the same."[p]Thus to select one passage out of many: Eodem anno (1332) quidam maligni, fulti quorundam magnatum præsidio, regis adolescentiam spernentes, et regnum perturbare intendentes, in tantam turbam creverunt, nemora et saltus occupaverunt, ita quod toti regno terrori essent. Walsingham, p. 132.

[r]Lord Abergavenny's case, 12 Coke's Reports; and Collins's Proceedings on Claims of Baronies by Writ, p. 61.

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

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

[u]It seems to have been admitted by Lord Redesdale, in the case of the barony of L'Isle, that a writ of summons, with sufficient proof of having sat by virtue of it in the house of lords, did in fact create an hereditary peerage from the fifth year of Richard II., though he resisted this with respect to claimants who could only deduce their pedigree from an ancestor summoned by one of the three Edwards. Nicolas's Case of Barony of L'Isle, p. 200. The theory, therefore, of West, which denies peerage by writ even to those summoned in several later reigns, must be taken with limitation. "I am informed," it is said by Mr. Hart,arguendo, "that every person whose name appears in the writ of summons of 5 Ric. II. was again summoned to the following parliament, and their posterity have sat in parliament as peers." p. 233.

[x]Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, 424; vol. iv. p. 374. Rymer, t. vii. p. 161.

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

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

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

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

[c]The lords' committee do not like, apparently, to admit that bannerets were summoned to the house of lords as a distinct class of peers. "It is observable," they say, "that this statute (5 Ric. II. c. 4) speaks of bannerets as well as of dukes, earls, and barons, as persons bound to attend the parliament; but it does not follow that banneret was then considered as a name of dignity distinct from that honourable knighthood under the king's banner in the field of battle, to which precedence of all other knights was attributed." p. 342. But did the committee really believe that all the bannerets of whom we read in the reigns of Richard II. and afterwards had been knighted at Crecy and Poictiers? The name is only found in parliamentary proceedings during comparatively pacific times.

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

[e]These descended from two persons, each named Geoffrey le Scrope, chief justices of K.B. and C.B. at the beginning of Edward III.'s reign. The name of one of them is once found among the barons, but I presume this to have been an accident, or mistake in the roll; as he is frequently mentioned afterwards among the judges. Scrope, chief justice of K.B., was made abanneretin 14 E. III. He was the father of Henry Scrope of Masham, a considerable person in Edward III. and Richard II.'s government, whose grandson, Lord Scrope of Masham, was beheaded for a conspiracy against Henry V. There was a family of Scrupe as old as the reign of Henry II.; but it is not clear, notwithstanding Dugdale's assertion, that the Scropes descended from them, or at least that they held the same lands: nor were the Scrupes barons, as appears by their paying a relief of only sixty marks for three knights' fees. Dugdale's Baronage, p. 654.The want of consistency in old records throws much additional difficulty over this intricate subject. Thus Scrope of Masham, though certainly a baron, and tried next year by the peers, is called chevalier in an instrument of 1 H. V. Rymer, t. ix. p. 13. So in the indictment against Sir John Oldcastle he is constantly styled knight, though he had been summoned several times as lord Cobham, in right of his wife, who inherited that barony. Rot. Parl. vol. iv. p. 107.

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

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

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

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

[i]vol. iii. p. 209.

[k]Id. p. 263, 264.

[m]vol. iv. p. 17.

[n]Id. p. 401.

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

[p]Hody's History of Convocations, p. 12. Dissertatio de antiquâ et modernâ Synodi Anglicani Constitutione, prefixed to Wilkins's Concilia, t. 1.

[q]2 Gale, Scriptores Rer. Anglic, t. ii. p. 355; Hody, p. 345. Atterbury (Rights of Convocations, p. 295, 315) endeavours to show that the clergy had been represented in parliament from the Conquest as well as before it. Many of the passages he quotes are very inconclusive; but possibly there may be some weight in one from Matthew Paris, ad ann. 1247 and two or three writs of the reign of Henry III.

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

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

[t]Hody, p. 391.

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

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

[y]The lower house of convocation, in 1547, terrified at the progress of reformation, petitioned that, "according to the tenor of the king's writ, and the ancient customs of the realm, they might have room and place and be associated with the commons in the nether house of this present parliament, as members of the commonwealth and the king's most humble subjects." Burnet's Hist. of Reformation, vol. ii.; Appendix, No. 17.This assertion that the clergy had ever been associated as one body with the commons is not borne out by anything that appears on our records, and is contradicted by many passages. But it is said that the clergy were actually so united with the commons in the Irish parliament till the Reformation. Gilbert's Hist. of the Exchequer, p. 57.

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

[z]Hody, p. 392.

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

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

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

[d]Atterbury, p. 46.

[e]Rot. Parl. vol. ii. p. 64, 65.

[f]18 E. III. stat. 3. Rot. Parl. vol. ii p. 151. This is the parliament in which it is very doubtful whether any deputies from cities and boroughs had a place. The pretended statutes were therefore every way null; being falsely imputed to an incomplete parliament.

[g]Rot. Parl. vol. ii. p. 151.

[h]25 E. III. stat. 3.

[i]p. 368. The wordtheyis ambiguous; Whitelocke (on Parliamentary Writ, vol. ii. p. 346) interprets it of the commons: I should rather suppose it to mean the clergy.

[k]50 E. III. c. 4 & 5.

[m]Rot. Parl. vol. iii. p. 25. A nostre tres excellent seigneur le roy supplient humblement ses devotes oratours, les prelats et la clergie de la province de Canterbirs et d'Everwyk. Stat. 1 Richard II. c. 13, 14, 15. But see Hody, p. 425; Atterbury, p. 329.

[n]Rot. Parl. vol. iii. p. 37.

[o]It might be argued, from a passage in the parliament-roll of 21 R. II., that the clergy of both provinces were not only present, but that they were accounted an essential part of parliament in temporal matters, which is contrary to the whole tenor of our laws. The commons are there said to have prayed that, "whereas many judgments and ordinances formerly made in parliament had been annulledbecause the estate of clergy had not been present thereat, the prelates and clergy might make a proxy with sufficient power to consent in their name to all things done in this parliament." Whereupon the spiritual lords agreed to intrust their powers to Sir Thomas Percy, and gave him a procuration commencing in the following words: "Nos Thomas Cantuar' et Robertus Ebor' archiepiscopi, ac prælatiet clerus utriusque provinciæ Cantuar' et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes jus interessendi in singulis parliamentisdomini nostri regis et regni Angliæ pro tempore celebrandis, necnon tractandi et expediendi in eisdem quantum ad singula in instanti parliamento pro statu et honore domini nostri regis, necnon regaliæ suæ, ac quiete, pace, et tranquillitate regni judicialiter justificandis, venerabili viro domino Thomæ de Percy militi, nostram plenarie committimus potestatem." It may be perceived by these expressions, and more unequivocally by the nature of the case, that it was the judicial power of parliament which the spiritual lords delegated to their proxy. Many impeachments for capital offences were coming on, at which, by their canons, the bishops could not assist. But it can never be conceived that the inferior clergy had any share in this high judicature. And, upon looking attentively at the words above printed in italics, it will be evident that the spiritual lords holding by barony are the only persons designated; whatever may have been meant by the singular phrase, as applied to them, clerus utriusque provinciæ. Rot. Parl. vol. iii. p. 348.

[p]Atterbury. p. 346.

[q]21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. 47) led me to this act, which I had overlooked.

[r]Rot. Parl. vol. iii. p. 582. Atterbury, p. 61.

[s]The ensuing sketch of the jurisdiction exercised by the king's council has been chiefly derived from Sir Matthew Hale's Treatise of the Jurisdiction of the Lords' House in Parliament, published by Mr. Hargrave.

[t]The words "privy council" are said not to be used till after the reign of Henry VI.; the former style was "ordinary" or "continual council." But a distinction had always been made, according to the nature of the business: the great officers of state, or, as we might now say, the ministers, had no occasion for the presence of judges or any lawyers in the secret councils of the crown. They become, therefore, a council of government, though always members of theconsilium ordinarium; and, in the former capacity, began to keep formal records of their proceedings. The acts of this council though, as I have just said, it bore as yet no distinguishing name, are extant from the year 1386, and for seventy years afterwards are known through the valuable publication of Sir Harris Nicolas.

[u]Rot. Parl. vol. iii. p. 84.

[x]Ibid. p. 266.

[y]25 E. III. stat. 5, c. 4. Probably this fifth statute of the 25th of Edward III. is the most extensively beneficial act in the whole body of our laws. It established certainty in treasons, regulated purveyance, prohibited arbitrary imprisonment and the determination of pleas of freehold before the council, took away the compulsory finding of men-at-arms and other troops, confirmed the reasonable aid of the king's tenants fixed by 3 E. I., and provided that the king's protection should not hinder civil process or execution.

[z]28 E. III. c. 3.

[a]42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295. It is not surprising that the king's council should have persisted in these transgressions of their lawful authority, when we find a similar jurisdiction usurped by the officers of inferior persons. Complaint is made in the 18th of Richard II. that men were compelled to answer beforethe council of divers lords and ladies, for their freeholds and other matters cognizable at common law, and a remedy for this abuse is given by petition in chancery, stat. 15 R. II. c. 12. This act is confirmed with a penalty on its contraveners the next year, 16 R. II. c. 2. The private gaols which some lords were permitted by law to possess, and for which there was always a provision in their castles, enabled them to render this oppressive jurisdiction effectual.

[b]Rot. Parl. 17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 H. VI. vol. iv. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. 403; 15 H. VI. p. 501. To one of these (10 H. VI.), "that none should be put to answer for his freehold in parliament, nor before any court or council where such things are not cognizable by the law of the land," the king gave a denial. As it was less usual to refuse promises of this kind than to forget them afterwards, I do not understand the motive of this.

[c]Hale's Jurisdiction of Lords' House, p. 46. Coke, 2 Inst. p. 553. The last author places this a little later. There is a petition of the commons, in the roll of the 4th of Henry IV. p. 511, that, whereas many grantees and feoffees in trust for their grantors and feoffers alienate or charge the tenements granted,in which case there is no remedy unless one is ordered by parliament, that the king and lords would provide a remedy. This petition is referred to the king's council to advise of a remedy against the ensuing parliament. It may perhaps be inferred from hence that the writ of subpœna out of chancery had not yet been applied to protect the cestui que use. But it is equally possible that the commons, being disinclined to what they would deem an illegal innovation, were endeavouring to reduce these fiduciary estates within the pale of the common law, as was afterwards done by the statute of uses. [NoteX.]

[d]Rot. Parl. vol. i. p. 416.

[e]L. ii. c. 2.

[f][NoteXI.]

[g]This is remarkably expressed in one of the articles agreed in parliament 8 H. VI. for the regulation of the council. "Item, that alle the billes that comprehend matters terminable atte the common lawe shall be remitted ther to be determined; but if so be that the discresion of the counseill fele to grete myght on that õ syde, and unmyght on that other, or elles other cause resonable yat shal move him." Rot. Parl. vol. iv. p. 343. Mr. Bruce has well observed of the articles agreed upon in 8 Hen. VI., or rather of "those in 5 Hen. VI., which were nearly the same, that in theory nothing could be more excellent. In turbulent times, it is scarcely necessary to remark, great men were too apt to weigh out justice for themselves, and with no great nicety; a court, therefore, to which the people might fly for relief against powerful oppressors, was most especially needful. Law charges also were considerable; and this, 'the poor man's court, in which he might have right without paying any money' (Sir T. Smith's Commonwealth, book iii. ch. 7), was an institution apparently calculated to be of unquestionable utility. It was the comprehensiveness of the last clause—the 'other cause resonable'—which was its ruin." Archæologia, vol. xxv. p. 348. The statute 31 Hen. VI. c. 2, which is not printed in Ruffhead's edition, is very important, as giving a legal authority to the council, by writs under the great seal, and by writs of proclamation to the sheriffs, on parties making default, to compel the attendance of any persons complained of for "great riots, extortions, oppressions, and grievous offences," under heavy penalties; in case of a peer, "the loss of his estate, and name of lord, and his place in parliament," and all his lands for the term of his life; and fine at discretion in the case of other persons. A proviso is added that no matter determinable by the law of the realm should be determined in other form than after the course of law in the king's courts. Sir Francis Palgrave (Essay on the King's Council, p. 84) observes that this proviso "would in no way interfere with the effective jurisdiction of the council, inasmuch as it could always be alleged in the bills which were preferred before it that the oppressive and grievous offences of which they complained were not determinable by the ordinary course of the common law" p. 86. But this takes the word "determinable" to meanin fact; whereas I apprehend that the proviso must be understood to mean cases legally determinable; the words, I think, will bear no other construction. But as all the offences enumerated were indictable, we must either hold the proviso to be utterly inconsistent with the rest of the statute, or suppose that the words "other form" were intended to prohibit the irregular process usual with the council; secret examination of witnesses, torture, neglect of technical formality in specifying charges, punishments not according to the course of law, and other violations of fair and free trial, which constituted the greatest grievance in the proceedings of the council.

[h]The judgment against Mortimer was reversed at the suit of his son, 28 E. III., because he had not been put on his trial. The peers had adjudged him to death in his absence, upon common notoriety of his guilt. 4 E. III. p. 53. In the same session of 28 E. III. the earl of Arundel's attainder was also reversed, which had passed in 1 E. III., when Mortimer was at the height of his power. These precedents taken together seem to have resulted from no partiality, but a true sense of justice in respect of treasons, animated by the recent statute. Rot. Parl. vol. ii. p. 256.

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

[k]Blackstone's Comment. from Finch, vol. i. c. 7.

[m]Letters are directed to all the sheriffs, 2 E. I., enjoining them to send up a certain number of beeves, sheep, capons, &c., for the king's coronation. Rymer, vol. ii. p. 21. By the statute 21 E. III. c. 12, goods taken by the purveyors were to be paid for on the spot if under twenty shillings' value, or within three months' time if above that value. But it is not to be imagined that this law was or could be observed.Edward III., impelled by the exigencies of his French war, went still greater lengths, and seized larger quantities of wool, which he sold beyond sea, as well as provisions for the supply of his army. In both cases the proprietors had tallies, or other securities; but their despair of obtaining payment gave rise, in 1338, to an insurrection. There is a singular apologetical letter of Edward to the archbishops on this occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col. 2570.

Edward III., impelled by the exigencies of his French war, went still greater lengths, and seized larger quantities of wool, which he sold beyond sea, as well as provisions for the supply of his army. In both cases the proprietors had tallies, or other securities; but their despair of obtaining payment gave rise, in 1338, to an insurrection. There is a singular apologetical letter of Edward to the archbishops on this occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col. 2570.

[n]Rymer, t. vi. p. 417.

[o]Idem, t. xi. p. 852.

[p]Matthew Paris asserts that John granted a separate forest-charter, and supports his position by asserting that of Henry III. at full length. In fact, the clauses relating to the forest were incorporated with the great charter of John. Such an error as this shows the precariousness of historical testimony, even where it seems to be best grounded.

[q]Coke, fourth Inst. p. 294. The forest domain of the king, says the author of the Dialogue on the Exchequer under Henry II., is governed by its own laws, not founded on the common law of the land, but the voluntary enactment of princes: so that whatever is done by that law is reckoned not legal in itself, but legal according to forest law, p. 29, non justum absolutè, sed justum secundum legem forestæ dicatur. I believe my translation ofjustumis right; for he is not writing satirically.

[r]13 R. II. c. 2.

[s]Rot. Parl. vol. iii. p. 530.

[t]The apprehension of this compliant spirit in the ministers of justice led to an excellent act in 2 E. III. c. 8, that the judges shall not omit to do right for any command under the great or privy seal. And the conduct of Richard II., who sought absolute power by corrupting or intimidating them, produced another statute in the eleventh year of his reign (c. 10), providing that neither letters of the king's signet nor of the privy seal should from thenceforth be sent in disturbance of the law. An ordinance of Charles V., king of France, in 1369, directs the parliament of Paris to pay no regard to any letters under his seal suspending the course of legal procedure, but to consider them as surreptitiously obtained. Villaret, t. x. p. 175. This ordinance, which was sedulously observed, tended very much to confirm the independence and integrity of that tribunal.

[u]Cotton's Posthuma, p. 221. Howell's State Trials, vol. iii. p. 1. Hume quotes a grant of the office of constable to the earl of Rivers in 7 E. IV., and infers, unwarrantably enough, that "its authority was in direct contradiction to Magna Charta; and it is evident that no regular liberty could subsist with it. It involved a full dictatorial power, continually subsisting in the state." Hist. of England, c. 22. But by the very words of this patent the jurisdiction given was only over such causes quæ in curiâ constabularii Angliæ ab antiquo, viz. tempore dicti Gulielmi conquæstoris, seu aliquo tempore citra, tractari, audiri, examinari, aut decidi consueverunt autjure debuerant aut debent. These are expressed, though not very perspicuously, in the statute 13 R. II. c. 2, that declares the constable's jurisdiction. And the chief criminal matter reserved by law to the court of this officer was treason committed out of the kingdom. In violent and revolutionary seasons, such as the commencement of Edward IV.'s reign, some persons were tried by martial law before the constable. But, in general, the exercise of criminal justice by this tribunal, though one of the abuses of the times, cannot be said to warrant the strong language adopted by Hume.

[x]Fortescue, De Laudibus Legum Angliæ, c. 9.

[y]Id. c. 13.

[z]The latter treatise having been written under Edward IV., whom Fortescue, as a restored Lancastrian, would be anxious not to offend, and whom in fact he took some pains to conciliate both in this and other writings, it is evident that the principles of limited monarchy were as fully recognised in his reign whatever particular acts of violence might occur, as they had been under the Lancastrian princes.

[a]The following is one example of these prejudices: In the 9th of Richard II. a tax on wool granted till the ensuing feast of St. John Baptist was to be intermitted from thence to that of St. Peter, and then to recommence; that it might not be claimed as a right. Rot. Parl. vol. iii. p. 214. Mr. Hume has noticed this provision, as "showing an accuracy beyond what was to be expected in thoserudetimes." In this epithet we see the foundation of his mistakes. The age of Richard II. might perhaps be called rude in some respects. But assuredly in prudent and circumspect perception of consequences, and an accurate use of language, there could be no reason why it should be deemed inferior to our own. If Mr. Hume had ever deigned to glance at the legal decisions reported in the Year-books of those times, he would have been surprised, not only at the utmostaccuracy, but at a subtle refinement in verbal logic, which none of his own metaphysical treatises could surpass.

[b][NoteXII.]

[c]During the famous process against the knights templars in the reign of Edward II., the archbishop of York, having taken the examination of certain templars in his province, felt some doubts which he propounded to several monasteries and divines. Most of these relate to the main subject. But one question, fitter indeed for lawyers than theologians, was, whereas many would not confess without torture, whether he might make use of this means,licet hoc in regno Angliæ nunquam visum fuerit vel auditum? Et si torquendi sunt, utrum per clericos vel laicos? Et dato, quòdnullus omnino tortor inveniri valeatin Angliâ, utrum pro tortoribus mittendum sit ad partes transmarinas? Walt. Hemingford, p. 256. Instances, however, of its use are said to have occurred in the 15th century. See a learned 'Reading on the Use of Torture in the Criminal Law of England, by David Jardine, Esq., 1837.'

[d]Rot. Parl. vol. iv. p. 65.

[e]Rot. Parl. vol. iv. p. 202.

[f]This was written in 1811 or 1812; and is among many passages which the progress of time has somewhat falsified.

[g]Philip de Comines takes several opportunities of testifying his esteem for the English government. See particularly 1. iv. c. i. and 1. v. c. xix.

[h]By a frankleyn in this place we are to understand what we call a country squire, like the frankleyn of Chaucer; for the word esquire in Fortescue's time was only used in its limited sense, for the sons of peers and knights, or such as had obtained the title by creation or some other legal means.The mention of Chaucer leads me to add that the prologue to his Canterbury Tales is of itself a continual testimony to the plenteous and comfortable situation of the middle ranks in England, as well as to that fearless independence and frequent originality of character amongst them, which liberty and competence have conspired to produce.

The mention of Chaucer leads me to add that the prologue to his Canterbury Tales is of itself a continual testimony to the plenteous and comfortable situation of the middle ranks in England, as well as to that fearless independence and frequent originality of character amongst them, which liberty and competence have conspired to produce.

[i]Brady's Hist. vol. i.; Appendix, p. 148.

[k]Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. iv. p. 41.

[m]If a man was disseised of his land, he might enter upon the disseisor and reinstate himself without course of law. In what case this right of entry was taken away, ortolled, as it was expressed, by the death or alienation of the disseisor, is a subject extensive enough to occupy two chapters of Littleton. What pertains to our inquiry is, that by an entry in the old law-books we must understand an actual repossession of the disseisee, not a suit in ejectment, as it is now interpreted, but which is a comparatively modern proceeding. The first remedy, says Britton, of the disseisee is to collect a body of his friends (recoiller amys et force), and without delay to cast out the disseisors, or at least to maintain himself in possession along with them. c. 44. This entry ought indeed, by 5 R. II. stat. i. c. 8, to be made peaceably; and the justices might assemble the posse comitatus to imprison persons entering on lands by violence (15 R. II. c. 2), but these laws imply the facts that made them necessary.

[n]No lord, or other person, by 20 R. II. c. 3, was permitted to sit on the bench with the justices of assise. Trials were sometimes overawed by armed parties, who endeavoured to prevent their adversaries from appearing. Paston Letters, vol. iii. p. 119.

[o]From a passage in the Paston Letters (vol. ii. p. 23) it appears that, far from these acts being regarded, it was considered as a mark of respect to the king, when he came into a county, for the noblemen and gentry to meet him with as many attendants in livery as they could muster. Sir John Paston was to provide twenty men in their livery-gowns, and the duke of Norfolk two hundred. This illustrates the well-known story of Henry VII. and the earl of Oxford, and shows the mean and oppressive conduct of the king in that affair, which Hume has pretended to justify.In the first of Edward IV. it is said in the roll of parliament (vol. v. p. 407), that, "by yeving of liveries and signets, contrary to the statutes and ordinances made aforetyme maintenaunce of quarrels, extortions, robberies, murders been multiplied and continued within this reame, to the grete disturbaunce and inquietation of the same."

In the first of Edward IV. it is said in the roll of parliament (vol. v. p. 407), that, "by yeving of liveries and signets, contrary to the statutes and ordinances made aforetyme maintenaunce of quarrels, extortions, robberies, murders been multiplied and continued within this reame, to the grete disturbaunce and inquietation of the same."

[p]Thus to select one passage out of many: Eodem anno (1332) quidam maligni, fulti quorundam magnatum præsidio, regis adolescentiam spernentes, et regnum perturbare intendentes, in tantam turbam creverunt, nemora et saltus occupaverunt, ita quod toti regno terrori essent. Walsingham, p. 132.

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