The Origin and History of the Constitution of England and of the Early Parliaments in Ireland

Front matter

THE ORIGIN AND HISTORY OF THE CONSTITUTION OF ENGLAND, &c. &c. PRINTBD »V f. jj, 11ARDT, 3, CECIMA.ITUEET. THE ORIGIN AND HISTORY OF THB CONSTITUTION OF ENGLAND, AND OF THE EARLY PARLIAMENTS OF IRELAND. BY SIR WILLIAM BETHAM, ULSTER KINO OF ARM?, Vc. 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 to re publish it with one more fully declaring its contents and objects, which were intended to show the origin and gradual 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.

Chapter I

General 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 institutions of the Normans and Saxons, 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 reign of her first ten monarchs — Normandy separated from France by Charles the Simple— Original 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 crown of which, before his accession, he held his 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 the peers of all power — Sale of privileges to serfs and tradesmen— Parliament of Paris in 1223— Parliament at Anceny in 1230— At St. Denis in 1235 — Parliament of Paris in 1240-1 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, a new idea of Philip the Fair — Ficat 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 feodal courts is England in the Saxon times, and from the Conqueror to the reign of Henry III. — Witanagemote 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 property and subjected it to the feudal incidents — The commune concilium 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 chatters 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 charier an act of the king — No reference to a legislative assembly, during the disputes between John and his barons — Legislative power must have been acquired by the concession of the CONTENTS.

XI crown — The struggle between the king and his barons arose from the violation of their chartered rights — No legislative assembly existed in England until after the reign of king Johu 41

Chapter IV

Henry III. — State ot' the kingdom on his accession — A minor, aged (en 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 bis ninth — Henry questions the legality of the charters issued during his minority — Issues a new charter of confirmation in his 2 1st year — Commotions and discontents — Meeting in London 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 prisoner 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 parliament assumed the title of le commun de Eng let erre —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 I2G0 — The earl of Leicester, a counter meeting at St. Alban'sand summons three knights for each shire to treat with Leicester and ill 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 of 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 contents. assumed the sovereign power, but in the king's name — Parliament Ht London in 1263, 48 Henry II I. — Council appointed to act vice ilomini regis — Parliament of London, 49 Hen. 1264 — Citizens and burgesses summoned for the tirst 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 domini regis 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 aud 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 111 67

Chapter V

Edward I. — His 6rst parliament held at Westminster, 1274 — Statute de viris religiosis — Magna concilia at Northampton and York in 1283— Parliament at Shrewsbury, 1282— Statute of Acton Harriett, or de mercatoribus, an ordinance of the king — No parliament held at Acton Buruell— Statute of Winchester— Of the city of London — All st.tutes 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 quia emptores terrarum — Of quo warranto de consultatione — The Scottish controversy for the crown — General legislative power conceded to the parliament — Statute de tallagio non concedendo — Charter of legislative power — Parliament at Lincoln — Ring's power to enact laws — New constitution — Lffect 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. XIII 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

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, condemned by the peers, who refuse to try Beresford because he was not a peer — Peers who were not earls or barons— Plein parliament — 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 who held by barony for themselves and tenants, separately from others — And by the commons — Committees for petitions appointed — Persons bound to come to parliament — Magnum concilium at Westminster — Ordinance 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 exteuded to *' advice on alt things for the common profit of the realm"9 — The descent of the crown settled by the statute, and the knights, citizens, aud 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 CONTENTS.

Chapter VIII

Modern peers of parliament. — Third Report of the lords committees—Members of the common council of the realm had no dignities — 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 allowed 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 by 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 possessed by the king's barons, and therefore such tenants were also called barons 167

CHAPTER VIII.

* Constitution op the aula regis. — All tenants of the crown in chief obliged to attend when summoned — Chief justiciary presided — 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 hear such 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 op pointed — The chancellor — Discontinuance of the office of lord justiciary at the end of the reign of Henry 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 Ian-, 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

Feodal 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 — Peerage a mere personal dignity. — Mr. Wallace — Peerages did not exist in Scotland in the sixteenth century, every freehold before 1587, gave the possessor an ineketive 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 conferred by the crown — Called so because the party possessed lands called a barony — Small barons and free tenants excused from attending parliaments by statute in 1427, if they sent two wise men to represent them, but not prohibited from attendance — Barous in Scotland included [all tenants in chief but burgesses — At the revolution of 1688, commissaries for the sbires constituted the second estate, and the burgesses the third — Ancient Scottish statutes — The Regiam Majeslatem ,the oldest institute of Scottish law, borrowed from Glanville 20'J CONTENTS.

Chapter X

Ireland. — Legal institutions of Ireland formed on the English model— Documents on the rolls, referring to Ireland, omitted in the Fœdera— 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 Ireland — 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 justiciarii in Hibernia 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. equis et armis *S 2 * •> aV

Chapter XI

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 Ireland. 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, aud 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 1897 — Constituent parts— Its acts and ordinances— Placita parliamenti of 1898— 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 two. three, or four representatives .JiS***" "> CONTENTS. XVII

Chapter XII

Edward II — Statute of Winchester transmitted to Ireland and proclaimed — First enrolment of writs of summons to the parliament 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 parliament — 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 proclaimed, 9 Edward III. 1335— Parliament at Kilkenny, 1346— Grants the king a subsidy — The bishops and clergy excommunicate 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 Dublin, 1359 — The lords spiritual and temporal, and representatives of the counties, cities, and towns of Leinster, summoned to meet in Dublin, those of Munster, at Waterford — Great council 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 representation to the king of the state of the country, and complain of absentees — The king ordains that all who possess lands in Ireland 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 Kilkenny — John Fitz-John, baron of Delvin, (a baron of the palatine of Meath) representative for the liberty of Meath, 44 Ed. III.

J370— A magnum concilium held in Dublin — 1373, persons summoned thereto by the sheriffs and seneschals — 1374, a magnum concilium held in Dublin — Persons summoned thereto — 1375, a parliament at Kilkenny — Walter L'Enfaunt summoned thereto as a bwron by tenure— Fined for non-attendance — Petitions 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

Councils and parliaments of Ireland from Richard II. to Richard III.— 1373, parliament at Tristledermot— Persons summoned — Names of those fined for non-attendance— 1379, parliament 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. Henry IV. — Parliament in Dublin in 1402 — Statute against forcible entry— 1404, a parliament in Dublin— Others in the years 1406, 1408, and 1410.

Henry 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 coinage — 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, archbishop of Dublin, was appointed to carry a message from the parliament, 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 and 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 Trish students of law had been refused admission into the Inns of Court in London, which had been accustomed since the first conquest of Ireland — That the Spaniards and Scots pirates captured the Irish vessels with impunity — That the escheators 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 a3 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 prerogative, by purchasing a bull from the pope, to ba 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 lieutenants — False suggestions made by private individuals to the king, should not be attended to — III treatment of the Anglo- Irish in travelling to London — Compensation prayed for the earl of Ormond — His valuable services — That the lord lieutenant 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 Cnuit 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. andWaterford, were nearly starved for XX CONTENTS. want of provisions — The lieutenants had not visited these counties for thirty years— In Ulster, no towns in possession of the English but Carricksergus and Ardglass — In Connaught, but Galway and A theory — 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 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 Englishmen so much an object of veneration, and almost idolatry, that they could not be satisfied in seeking its origin amongst sources similar to those from which have sprung the iustitutions 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 popular, constitutional, and free government, and a representation of the people, which they imagined to have I! 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, " What 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 tho whole ; but if it were evident that sueh 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 together, arising out of, and dependant on each other. 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 lordships 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.