The difference, though apparently a slight one in its practical effect, in reality is of considerable importance as marking the persistence of the elective and fiduciary character of the Kingship.

Edward I. had been recognised as King four days after the death of his father. The accession of Edward II. on the day following his father's decease marks a further advance in the hereditary doctrine: an advance, however, which was more than neutralised by the revival, against his person, of the right of the National Assembly to depose the King. By the unopposed succession of Richard II. to the exclusion of his uncles, the right of representative primogeniture was for the first time asserted in the devolution of the Crown. But as in the case of Edward II., so in the case of Richard, no sooner had the doctrine of strict hereditary descent progressed another step, than it was met by the reassertion of the right of Parliament to depose the sovereign, and by the negation of any indefeasible right of primogeniture, through the election of Henry of Lancaster.

It was by the House of York, who were themselves the real'usurpers' of the throne, that the doctrine of indefeasible hereditary right was first propounded in its full force and significance. The Crown seems to have been by them actually regarded as a private estate for their own personal benefit. Yet even Edward IV. sought and obtained a Parliamentary confirmation of his title: and when, a quarter of a century later, the Crown was settled by Parliament on Henry VII. and his issue, to the exclusion of the whole House of York, the Kingship was replaced on its elective basis.

The elective right of Parliament, however, was now exercised not periodically on the death of each sovereign— hereditary succession having been the normal rule from the accession of Edward II. at the latest-but whenever it became necessary to elect a new royal stock, as in the case of Henry IV. and of Henry VII. By the marriage of Henry VII. with Elizabeth of York, what may be termed the 'legitimate' claims of that house were transmitted to all her

descendants; yet the right of Parliament to alter the succession was never more signally asserted than in the Act which conferred upon King Henry VIII. unlimited power to nominate his successor. James I., coming to the throne without a legal title, attempted to revive the Yorkist theory of hereditary right. In the recitals of the Act of Parliament by which the Crown was settled upon him, care was taken to carry back his pedigree to Elizabeth, daughter of Edward IV. and to omit all mention of the entail upon Henry VII. and his issue. But the theory of indefeasible hereditary right, fortified as it was by the Stuart addition of a sanction jure divino, utterly failed to take permanent root: and was finally extirpated by the Revolution of 1688 and the subsequent Act of Settlement, which entailed the Crown on the descendants of Sophia of Hanover. In that statute, Parliament, for the last time in our history, exercised its paramount right to settle the succession to the Crown; a right founded not only in reason, but in the ancient principles of our Constitution, and supported by long usage and a uniformity of theory and practice for centuries prior to the Revolution.1

1 On the subject of this chapter, reference may be made to an interesting monograph on The Succession to the English Crown' (1879), from the pen of Mr. Alfred Bailey, M. A., of Lincoln's Inn, a former Stowell Civil Law Fellow of University College, Oxford, whose views coincide in the main with those expressed in the text. [Besides the careful analysis to which the whole question has been subjected by Mr. Bailey, his book contains a number of useful genealogical tables, not to be met with in the ordinary historical textbooks. It should not be forgotten, when the absence of a "legal" title to the Crown is insisted upon, as above, in the case of James I., that the Act conferring upon Henry VIII. the special testamentary powers which it is alleged that he exercised, may itself have been, as some have held it, ultra vires.-ED.]

225

CHAPTER VII.

ORIGIN OF PARLIAMENT.

concilium

existed.

mot.

ENGLAND has never been without a National Assembly, A 'commune 'Commune Concilium Regni, by whose 'counsel and regni' has consent' the work of government has been carried on. always But, whilst retaining its corporate identity, the name, powers, and constitution of this assembly have varied from time to time. The nature and functions of the old English WitenageWitenagemot have been already sufficiently described.1 After the Norman Conquest, the Witan still continued to be summoned, as before, to give counsel and consent on the promulgation of a new law, or the imposition of a new tax; but owing alike to the infrequency of legislation under the Norman kings, and to the predominance of the royal power, the legislative functions of the assembly must have been formal, rather than real. As the feudal principle Curia Regis. gradually acquired predominating influence in every department of the state, the Meeting of the Wise almost insensibly changed into the Curia Regis, the court of the Its constituking's feudal vassals. All immediate tenants of the Crown by military service, however small might be their holdings, had originally a personal right to be summoned to the Common Council of the Realm whenever the King wished to impose any extraordinary aid, and probably on other occasions also. The bishops and principal abbots continued to be summoned without any intermission, though their ancient character of Witan appears to have become

1 Supra, pp. 31-36.

tion.

1

gradually merged in that of feudal barons. The earls also, who were at all times and without exception indisputably noble,' never lost their right to attend. But as regards all other military tenants in capite, although constitutionally members of the Commune Concilium, it is highly probable that the King early assumed the power of selecting the persons to whom writs of summons should be addressed. Thus the same indefiniteness and uncertainty which had characterised the constitution of the Witenagemots continued as a feature of the feudal Great Councils. With the exception of the famous Gemot of Salisbury in 1086, which was attended not only by the Witan but by all the landowners of the kingdom, whether tenants-in-chief or not, and the similar general muster of landowners held by Henry I. at Salisbury in 1116, the complete assembly of all the tenants-in-chief can hardly ever have taken place.5 Still, the personal right always subsisted; and it was the infringement of this right, when councils were summoned for the purpose of granting extraordinary aids, which led to the provision in John's Magna Charta, by which the King promised on such occasions to summon all tenants in capite, the archbishops, bishops, abbots, earls, and majores barones individually, and the rest generally through the sheriff. This difference in the mode of summons- -a difference which had been observed for at least half a century 6 and probably from a still earlier period-is evidence of the inequality then existing among the tenants-in-chief. Though formally recognised by Magna Charta, the right of the in

1 Hallam, Midd. Ages, iii. 235.

2 Report of Lords' Committee on Dignity of a Peer, 1819.

3 See supra, p. 57.

4 Flor. Wigorn. A.D. 1116.

5 'Henry II. made the national council a different thing from what Henry I. had left it. . . Its composition was a perfect feudal court: archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders. . . . That towards the end of his reign he found it necessary to limit the number of lower freeholders who attended the councils is very probable; the use of summonses, which prevailed from the first year of the reign, gave him the power of doing this.'-Stubbs, Select Chart. Introduction, 22.

6 In 1164, Archbishop Becket felt himself insulted by receiving a summons to the Great Council in Northampton, not by special writ, but through a common summons directed to the Sheriff of Kent. Will. Fitz Stephen [Rolls ed.

iii. 51].

barones.

the House

ferior tenants-in-chief to attend the National Council must soon have become impracticable through the increase in their numbers (arising from the subdivision of tenures), their comparative poverty, and the personal inconvenience of attending at long distances from home. Thus the The majores ancient National Asembly gradually ceased to be anything more than an assembly of the 'greater barons,' and ultimately developed into a hereditary House of Lords, the Upper House of the National Parliament. The hereditary Hereditary character of the House of Lords-now long regarded as character of fixed and fundamental-accrued slowly and undesignedly, of Lords. as a consequence of the hereditary descent of the baronial fiefs, practically inalienable, in right of which summonses to the National Council were issued. But, in addition to the barons by tenure, the King had always the right, and, at least as early as the reign of Edward I. had acquired the habit, of summoning other persons who held nothing of the Crown by barony. It is certain that a summons was not at first regarded as conferring even a lasting personal right much less one that was hereditary; but by the time that the custom arose of creating baronies by letters patent (the

1 The Lords' Committee (p. 314), speaking of the 15th of Edward III., say: "Those who may have been deemed to have been in the reign of John distinguished as majores barones, by the honour of a personal writ of summions, or by the extent and influence of their property, from the other tenants-inchief of the crown, were now clearly become, with the earls and the newlycreated dignity of duke, a distinct body of men denominated peers of the land, and having distinct personal rights; while the other tenants-in-chief, whatsoever their rights may have been in the reign of John, sunk into the general

mass.

2 Freeman, Growth of Eng. Const., 61; Hallam [M. A. iii. 125], quoting Prynne's 1st Register, p. 232, says: No less than 98 laymen were summoned once only to Parliament, none of their names occurring afterwards; and 50 others, two, three, or four times. Some were constantly summoned during their lives, none of whose posterity ever attained that honour.' For the obscure history of the early baronage, see generally Hallam, iii. 121, 234. Bishop Stubbs has briefly summed up the successive changes in the constitution of the baronage, the chronology of which is far from easy to fix. Originally including all barones-that is, all homagers holding directly of the Crown-the baronage was limited (1) to all who possessed a united 'corpus' or collection of knights' fees held under one title; (2) to those who, possessing such a barony, were summoned by special writ; (3) to those who, whether entitled by such tenure or not, had received a special summons; (4) and finally to those who had become by creation or prescription entitled hereditarily to receive such a summons.-Select Chart. Introductory Sketch, 37.