assembly becomes the king's feudal vas court of sals. The prac became his tenants-in-chief, holding their lands from him as The ancient their lord. Through this feudalizing process the ancient national assembly of great men gradually became the king's court of feudal vassals, whose right to exercise power was made to depend practically upon the king's pleasure.1 Under Henry II. and his sons, the national council, which was now summoned at regular intervals, attained to a definiteness of organization which it had never possessed before. Its composition was that of a perfect feudal court, — an assembly of archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders. The constituent members of the assembly are the same as under the Norman kings, but greater prominence and a more definite position is now assigned to the minor tenants-in-chief. In the days of Henry of Anjou, as in the days of Eadward and of William, an ordinary meeting of the national assembly embraced only the witan, the great men of the kingdom; while on an extraordinary occasion it might embrace, besides these, not only the tenants-in-chief, but the whole body of freeholders. Through the influence tice of sum of the practice of summons, to whose origin an exact date cannot be assigned, the tendency was fast gaining ground to limit the national assembly to those only who were summoned by the king's writ either personally or in a body.2 The writs of summons were of two kinds: first, such as were specially addressed to those great personages whose presence was necessary, and who were summoned as a matter of course; second, such as were addressed generally to the sheriff of each shire, requiring him to summon in a body the lesser landowners. How far this practice of summons, which was in active operation in the time of Henry II., had developed up to the sixteenth year of the reign of John, can be defias defined nitely ascertained from the fourteenth article of the Great Charter, which provides that, "to have the common counsel of the kingdom, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons singly by our letters; and besides we will cause to be summoned in general by our sheriffs and bailiffs all those who hold of us in chief." 3 By this clause, which no doubt expressed the then mons, by the Great Charter. 1 See above, p. 242. 2 See above, pp. 289–291. 8 The Lords' Committee report, "That the Great Charter of John is existing practice, the qualification for membership in the national assembly was at last distinctly defined, and that qualification naturally assumed a feudal shape. No one was expected to attend unless he was summoned, and no one was summoned unless he was a tenant-in-chief. By the form of the summons, a line was also distinctly drawn between two different classes of men, between the magnates, who were entitled to a personal summons, and the main body of tenantsin-chief, who were summoned generally in the shires in this way the distinction between lords and commons begins. The greater tenants-in-chief, who received personal sum- Every peer supposed to mons to the national council, and whose right to receive such hold a barpersonal summons became hereditary, represent, together of the king. ony directly with the lords spiritual, the peerage of England.1 Every peer, whether temporal or spiritual, holds, or is supposed to hold, an ancient barony directly of the king. The theory is that the holding of an estate by the peculiar tenure of barony was the original qualification which entitled the tenant-inchief to the right of personal summons,3-"the baronage of the thirteenth century was the body of tenants-in-chief holding a fief or a number of fiefs consolidated into a baronial honor or qualification." The difficult matter, in the absence of any early enfeoffment of a barony, is to determine what elements were necessary to constitute the baronial honor or estate. Although the characteristics and attributes of the Nature of baronial tenure have been made the subject of special investi- tenure. gations by Selden, Madox, Hallam, and Stubbs, no precise or satisfactory definition of a barony has resulted from the the earliest document of which authentic evidence remains, from which the constitution of that legislative as sembly called the king's great council, or the great council of the realm, can be, with any degree of certainty, collected; .. that that assembly consisted of certain persons who by that charter were required to be personally summoned by the king's writ, and of other persons who by that charter were allowed to be summoned generally, and 2 But the simple holding by barony was not of itself a sufficient ground for requiring attendance in parliament; a writ of summons did not necessarily follow tenure by barony. Lords' Report, vol. i. pp. 326, 342. Cf. Blackstone, bk. i. p. 156, as to the baronial tenure of the lords spiritual. 8 Hallam, Middle Ages, vol. iii. pp. 4 Stubbs, Const. Hist., vol. ii. p. 178. not personally." - Lords' Report, vol. i. 743 Baronia Anglica. P. 389. I No reference is here made to life peerage, which will be separately considered hereafter. 7 Middle Ages, vol. iii. pp. 9-14, 117– 119. Const. Hist., vol. ii. pp. 178–184. the baronial summons. inquiry. The writer last named cautiously concludes that the definitions of law recognize rather than create the character of barony; that that estate, however acquired, was a barony which entitled its owner to a personal summons to Barony by the council of the king; that the baronage was ultimately defined and recognized as an estate of the realm by the royal action in summons, writ, and patent. But the status of the peer was not fully established by the mere reception of the king's writ; it was upon the hereditary right to receive the writ that the status of the peer ultimately depended. The hereditary right to receive the king's writ, rather than the tenure which was the original qualification for the writ, represents the constitutional basis upon which the peerage now Feudal rule reposes. As the process of feudalization advanced, the inherent power of the crown to determine who should be summoned as barons gradually became subject to the limitation imposed by the feudal rule of primogeniture. It is generally conceded that certainly during the reign of Edward I. the right of a baron whose ancestor had once been summoned and had once sat in parliament — to claim the hereditary right to be so summoned was clearly and definitely established. The peers of the realm who thus acquired the hereditary right to be summoned, together with the lords spiritual, constitute the estate of the peerage which is identical with the house of lords.1 of primogeniture. The right to be sum moned be comes hereditary. The lords spiritual. The political status of the lords spiritual, which was at one time involved in some confusion, has of late years been placed upon a broad and rational basis. It was for a long time contended that the spiritual lords sat in parliament by virtue of their baronial tenures only, and not by virtue of that older and higher right upon which the baronial status was simply superimposed. The fact has been pointed out over and over again that in the Old-English witan the prelates sat with the other magnates of the realm as constituent elements in the national assembly. The Conquest wrought no formal change in this condition of things, apart from that general process of change through which the witan itself was silently transformed into a feudal council. In the process of feudalization the church in its temporal relations was directly in 1 Courthope, Hist. Peerage, p. xli.; Stubbs, Const. Hist., vol. ii. p. 184. abbot re fief. volved. The system of feudal law which Flambard seems to have worked into a definite and formal shape was applied by him with equal severity to all feudatories, temporal and spiritual. The estate of a bishop or abbot came to be regarded Estate of a as a fief or benefice held personally of the king by the tenure bishop or of military service. When a vacancy occurred, as there was garded as a no heir who could demand seisin, the king took the fief into his own hands until he saw fit to admit a successor. The profits of the vacancy and the payment from the successor were the equivalents which the church paid for being exempt from the ordinary feudal exactions which fell upon the estates of laymen.1 In this way the bishops and abbots were made to assume the relation of tenants-in-chief, holding baronies of the crown "sicut barones ceteri," and in this way the idea grew up that the bishops and abbots sat in parliament by virtue of their baronial tenure only. But the sounder view seems to be that, as a part of the witan of the realm, the prelates never lost their immemorial right to sit in the national assembly. To this ancient right was simply added the new right growing out of their feudal relations; the title of "barones" was simply added to that of "sapientes." That Title of the ancient right was never forfeited is evidenced by the fact added to that the guardian of the spiritualities of a vacant see, who that of sapien could not pretend to a baronial qualification, received the tes formal summons; and by the further fact that even now, when the bishops no longer hold baronies, they are still summoned to the house of lords. "barones" 66 of the com mons. If we subtract from the English nation as constituted in The estate the thirteenth century the estate of the clergy and the estate of the baronage, the remainder represents, although in a very vague and general sense, the third estate, the estate of the commons. From the very variety and diversity of the The term " commons as upon the elements that entered into its constitution, the commonalty necessarily lacked that force of internal cohesion, that sense of corporate identity and oneness, which bound together the clergy and the nobles. No mediæval politician would have thought of defining the third estate to be a union into one corporate body, conscious of its own identity, of all orders of men below the nobility and the clergy. Any such comprehensive definition would have been at utter variance with the facts. As an illustration of the narrow view of the "com" that existed on the Continent in mediæval times, the fact may be cited that in France and Spain the term was understood then understood to embrace only the citizens of privileged Continent; towns, or of chartered communities of kindred municipal origin.1 In England, however, the term has always borne a wider signification; it has there embraced not only freemen incorporated in towns, but freemen incorporated in shires. The term "commons," as it appears in the English political England. system, must therefore be understood to include all freemen organized and incorporated for government in the two leading classes of local communities, towns and shires.2 In the English system the commonalty as organized in shires were the first to send representatives to parliament in the persons of the knights of the shire, who appeared as the representatives of all the freeholders in their respective counties. Their example was soon followed by the commonalty as Represen- organized in communities of cities and boroughs. Out of the union of the knights of the shire, who represented the and towns lesser landowners, with the citizens and burgesses, who house of represented the commercial interests of the towns, has grown the house of commons in which is now embodied a as understood in tatives of the shires unite in the commons. 1 As to France, cf. Thierry, History of the Tiers-Etat, vol. i. p. 56 (Eng. trans.); Savaron, États généraux, p. 74. As to Spain, cf. Schäfer, Spanien, vol. iii. pp. 215, 218; Zurita, t. i. fol. 71, 74. On the Aragonese cortes, see Middle Ages, vol. ii. p. 58 and notes. The term "commons originally bore the same meaning in the constitution of Scotland. For the history of that constitution, and of the change made in it in 1427, whereby commissioners of shires were permitted to appear in parliament as the representatives of the minor tenants-in-chief, see Lords' Re |