-II.

CHAP. the tenth of the ecclesiastical revenues, which he received for some years: an impost which, though insufficient to rescue him from the pressure of poverty, was calculated from its partial operation to exasperate the minds of those who were compelled to pay it. The clergy struggled in vain to shake off the burden; their writers have laboured more successfully to interest in their favour the feelings of posterity by the description, probably the exaggerated description, of their wrongs.124

Constitu

tionof parliament.

Before I proceed to the history of the next king, I may be allowed to notice a few miscellaneous but interesting particulars, which regard the legislature, the laws, the police, and the church of England.

I. During the reign of Henry, but while he was under the control of Leicester, we are surprised at the unexpected appearance of a parlia

tenants of the crown were obliged to pay by their tenures, and which were reckoned in the ordinary revenue of the year.

124 Of these writers the most querulous is Matthew Paris, a monk of St. Alban's, partly the author, partly the compiler of the ponderous volume, which with Rishanger's continuation has been published under his name. It contains many original and some valuable documents: but the writer, accustomed to lash the great, whether clergy or laity, seems to have collected and preserved every malicious and scandalous anecdote, that could gratify his censorious disposition. It may appear invidious to speak harshly of this favourite historian: but this I may say, that when I could confront his pages with authentic records, or contemporary writers, I have in most instances found the discrepancy between them so. great, as to give to his narrative the appearance of a romance rather than a history.

CHAP.

II.

ment, constituted as our present parliaments are of the lords spiritual and temporal, and the representatives of the counties, cities, and boroughs.125 Was this the innovation of a bold and politic adventurer, or merely the repetition of an ancient and accustomed form? Something more than a century ago, the question was fiercely debated between the adverse champions of the prerogative of the crown, and the liberties of the people: since that period it has been investigated with more coolness and impartiality: and most writers have agreed to pronounce the assembly of 1265 a new experiment, devised for the purpose of extending the influence, and procuring support to the projects, of Leicester. 1° In the history of the preceding reigns we Originally shall search in vain for any satisfactory evidence it comprised only that the cities and burghs sent their represen- the te tatives to the national councils. Historians, indeed, sometimes mention the people, or the multitude, as awaiting the decision of the assembly, and testifying their approbation by their applause but such passages may with propriety be understood of the neighbouring inhabitants, whom curiosity might lead to the spot; of the culprits and petitioners, the suitors and pledges, whose duty or whose interest it was to be present; and of the clergymen and monks, the knights and esquires, who were in attend

125 See p. 191.

tants in

chief

CHAP.

II.

ance on their lords, the prelates and barons.126 If at a later period some boroughs claimed the privilege of representation from remote antiquity, or if the members of the lower house boasted that they had formed a constituent part of the legislature from time beyond the memory of man; such pretensions may be attributed either to their ignorance of history, or to the use of legal expressions without any definite meaning 127 To me all the great councils under the first Norman kings appear to have been constituted on feudal principles. The sovereign might claim an extraordinary aid from his liege man; but the consent of the man was requisite to legalize the aid: he might seek to make alterations in the laws and customs of the realm; but he was previously expected to ask the advice of those vassals, whose rights and interests it was his duty, as their lord, to protect and improve.

126 If the passage sometimes quoted from Eadmer (p 26) prove any thing, it will prove that all the clergymen and monks, who attended the archbishop, were members of the council: and the other passage from the Gesta Stephani (p. 932, 933) seems to describe nothing more than the crowd of spectators. The rolls mention the approbation of the spectators, as being given occasionally to the determinations of parliament, even in the reign of Richard II. Rot. Parl. iii. 360.

127 The borough of St. Alban's, in a petition to the council in the reign of Edward II., says it had sent representatives under the king's father and his predecessors: that of Barnstaple, that it had always sent representatives by virtue of a charter of king Athelstan which unfortunately was lost. I suspect that the framers of such petitions were accustomed to give to their pretensions an antiquity which, they knew, would not bear investigation.

II.

Hence all who held in barony were summoned CHAP. to the great council: but, as the reader has seen, a line of distinction was soon drawn between the greater barons, the lords spiritual and temporal, and the lesser barons, the inferior tenants in chief. From their great property the former (and through them their numerous tenantry) were deeply interested in almost every legislative enactment: and so extensive was their influence, that the royal authority could not, without their concurrence, carry any law into execution. Hence their presence in the national councils was exacted as a duty: and every unjustifiable failure on their part was punishable as a breach of that fealty, which they owed to the crown. But with the inferior tenants the case was different. Their consent was implied in that of the greater barons: and as attendance must have proved expensive and inconvenient to men of small fortunes, it was but seldom enforced.128 Hence on ordinary occasions

128 If we seek to discover the members of these councils in the description given of them in the original writs, our labour will be fruitless. There is something singularly ambiguous in their language. Thus in the confirmation of the great charter (9th Henry III.) we are told that a fifteenth has been granted in return by the bishops, earls, barons, knights, free tenants, and all of the kingdom-omnes de regno-an expression which would induce a belief that the representatives of the free tenants, the cities and boroughs, were present. Yet such inference cannot be supported. For in another writ we have a grant by the "earls, barons, and all others of "the whole kingdom, omnes alii de toto regno nostro:" and yet the same persons a few lines lower are described as the "earls,

CHAP. the great council appears to have been com

II.

Introduction of

posed of the bishops and abbots, the earls and barons, the ministers and judges, and the neighbouring knights, holding of the crown: but on others, when the safety of the kingdom was at stake, or an extraordinary aid was to be granted, the king convoked an assembly of all his tenants in chief: in more early times perhaps by a summons directed to each individual separately, 129 afterwards by personal writs to the greater barons, and a general writ to the other tenants in each county.130

2o. But though the immediate vassals of the crown were the only individuals possessing a the shire. personal right to be present in parliament, there

knights of

"barons, and all others holding in chief of the crown, et omnium “aliorum qui de nobis tenent in capite." (Cl. 19 Hen. III. Brad. i. App. p. 43.) In the same reign we find a fortieth granted by the bishops, carls, barons, knights, freemen, and villeins (Claus. 16 Hen. III. Brad. ii. App. No. 151). Certainly the villeins sent no representatives, and yet they are said to have made the grant. Probably, as the lord could at any time with the permission of the crown raise money by tallage on his free tenants, his burgesses, and his villeins, their consent was understood to be included in his. Thus in the grant of a thirtieth, five years later, it is said to have been made by the bishops, earls, barons, knights, and freemen for themselves, and their villeins-pro se et villanis suis. Cl. 21 Hen. III. Brad. ii. App. No. 159.

129 Thus, when king John before the grant of Magna Charta sent only a general summons to his barons, knights, and all his liege men from Rochelle, he excused the informality of the writ, by alleging the necessity of expedition. Unicuique vestrum si fieri posset literas nostras super hoc transmisissemus, sed ut negotium cum majore expediretur festi atione has literas, &c. Pat. 15 Johan. Brad, i. 40. 130 Mag. Chart. c. 14.