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 Stewart 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 Since this chapter was revised for the present edition an interesting monograph on theSuccession to the English Crown' has appeared, from the pen of Mr. Alfred Bailey, of Lincoln's Inn, a former Stowell Civil Law Fellow, Univ. Coll., Oxford, whose views coincide in the main with those expressed in the text. CHAPTER VII. ORIGIN OF PARLIAMENT. regni' has existed. ENGLAND has never been without a National Assembly, a 'commune a Commune Concilium Regni,' by whose counsel and concilium 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 WitenageWitenagemôt have been already sufficiently described.1 môt. 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. 30-35. tion. 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 Witenagemôts 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. 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 and probably from a still earlier period-is evidence of the inequality then existing among the tenants-in-chief. Though formally recognized by Magna Charta, the right of the in 1 Hallam, Midd. Ages, iii. 235. Report of Lords' Committee on Dignity of a Peer, 1819. 3 See supra, p. 55. 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 at Northampton, not by special writ but through a common summons directed to the Sheriff of Kent.-Will. Fitz Stephen, i. 220. 6 character of 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 Assembly gradually ceased to be anything barones. 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 the House 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 summons, 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. Freeman, Growth of English Constitution, 61; Hallam, 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. Professor 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. Q Spiritual peers. first instance of which was the creation of Sir John Beauchamp of Holt as Lord Beauchamp of Kidderminster, in the 10th of Richard II.), the hereditary nature of the baronage, irrespective of tenure, may be regarded as the established rule. Still, the rule has never been without exception. The presence of the bishops in the House of Lords is at once an exception to the principle of hereditary right, and a continuing witness of the times when such right had no existence. Down to the suppression of the monasteries by Henry VIII., in 1539, while the abbots and priors sat with the bishops, the spiritual life-peers actually outnumbered the lords temporal; and even after the abbots and priors had been removed, the bishops alone formed about one-third of the House of Lords. Independently, ages for life. however, of the spiritual peers, several cases of the creation of lay peerages-dukedoms and carldoms-for life only occurred between the reigns of Richard II. and Henry VI.; but from the latter date, for more than four hundred years, no instance is recorded of any man being admitted to a seat in the House of Lords as a peer for life. In 1856, with the object of improving the ancient appellate jurisdiction of the Upper House, an attempt was made to re-introduce life-pcerages by means of the royal prerogative. This was defeated, however, by the successful resistance of the House of Lords. After an interval of twenty years, during which the appellate jurisdiction was at one time actually Lay peer Lord Redesdale, in the L'Isle peerage case, gave his opinion that from the 5th year of Richard II. a writ of summons, with a sufficient proof of having sat by virtue of it in the House of Lords, created a hereditary peerage.Nicolas's Case of the Barony of L'Isle, p. 200. Sir Erskine May, Constitutional History, i. 299. By the profuse creation of peers in recent time, the relative proportion of the bishops in the House of Lords has been reduced from one-third to less than one-fifteenth. 3 The cases are collected in the Report of the Committee of Privileges, 1856. The attempt in 1856 to re-introduce life-peerages in the person of Sir James Parke, late one of the barons of the Court of Exchequer, created Baron Wensleydale for and during the time of his natural life,' was resisted by the Lords, who referred the patent to a Committee of Privileges, and agreed, in accordance with the report of that Committee, 'that neither the letters patent, nor the letters patent with the usual writ of summons in pursuance thereof, can entitle the grantee to sit and vote in Parliament.' In consequence of this decision a new patent was issued creating Lord Wensleydale |