after the tical trans assembly. It seems to be clear, however, that the Norman conquest wrought no formal change in the constitution of the witan; that, in legal theory at least, what the witan was in the days of King Eadward it remained in the days of King The witan, William. But although the witan under the name of the Conquest, great council outlived the Conquest, and although in legal passes theory it still retained all of its old powers, yet the fact rethrough a great prac mains that the constitution of the assembly underwent a formation: great practical transformation. At the beginning of William's reign, those who composed the council that ordinarily gathered around the person of the king were a body of Englishmen; by the end of the reign, this body had gradually been changed into an assembly of Normans in which an Englishman here and there held his place. This change naturally resulted from the nature of the Conquest itself. Through William's policy of confiscation and regrant, nearly all of the great estates passed from English to Norman hands; and in the same way nearly all of the great offices in church and state were parcelled out among his followers. The king's thegns thus became his tenants-in-chief, holding their lands from him as their lord. Through this feudalizing process, the ancient assembly of wise men was gradually and feudal vas silently transformed into the king's court of feudal vassals, whose right to exercise power was made to depend practically upon the king's pleasure. During the reigns of the Norman kings the legislative functions of the great council were reduced to a mere shadow.1 Under Henry II. and his sons the constitution of the national council reached a definiteness of organization which it had never possessed before. The composition of the council, which was now summoned at regular intervals, 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. Through the influence of the pracof the practice of summons, to whose origin an exact date cannot be assigned, the tendency was fast gaining ground to limit the national council to those only who were summoned by the 1 See above, pp. 239–242. it becomes the king's court of sals. Influence tice of sum mons. drawn be tween lords and com mons. king's writ, either personally or in a body. How far the practice of summons, which was in active operation in the time of Henry II., had developed up to the sixteenth year of John, can be definitely 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." By this article, which no doubt expressed the then existing practice, the qualification for membership in the national council 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 to be summoned unless he was a tenant-in-chief. By the form of The line the summons a line was also distinctly drawn between two definite 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 form the distinction between lords and commons begins.1 The time was now fast approaching when the constitution Constituof the feudal council, which the practice of summons had thus feudal definitely defined, was in its turn to be modified by the force council of a new principle which demanded that every national assem- the growth bly should consist of representatives of all the estates or tate system. classes of men into which the body-politic was divided. The causes which brought about the establishment of the estate system were general in their operation, and in each one of the European countries the result was reached about the same time. The complete establishment of the system is generally regarded by the historians as the work of the thirteenth century. During that period was established throughout Western Europe that type of a national assembly into which the several orders or classes of men entered in the form of definitely organized estates. In each country the system has its special or local history, but as a general rule in all of the European constitutions the three political factors are the same, the clergy, the nobles, and the commons.2 In nearly all of the Western nations the old primary assem1 See above, pp. 289–291. 2 See above, pp. 337. tion of the modified by of the es semblies land. Effects of the process the national council. - Primary as blies died out and were succeeded by representative assemdie out blies founded on the principle of estates. In one important everywhere but particular the English kingdom stands as an exception to the general rule, in England the old primary assembly never entirely died out. After first shrinking up into the narrow aristocratic body known as the witan, the witan of the consolidated kingdom which survived the Conquest was ultimately transformed, through the practice of personal summons to the great magnates of whom it had been immemorially composed, into the house of lords. In this feudalized form the Old-English national assembly survived, and entered as the aristocratic element into the new system of estates.1 3. The ultimate effect of the process of feudalization upon of feudali- the constitution of the national council was to transform the zation upon ancient assembly, composed of the lay and spiritual witan, into a court or council of feudal vassals in which, according to feudal theory, every tenant-in-chief possessed the right of membership. In practice, however, after the Conquest as before, the feudal councils which ordinarily gathered round the king were composed, as the old assembly had been, only of the territorial magnates, and of the holders of the great offices in church and state. The greater tenants-in-chief who thus gathered around the person of the king, and who won for themselves the right to be personally summoned to his council, and in whom that right became hereditary, represent, together with the lords spiritual, the peerage of England, which is identical with the house of lords. By the practice of personal summons, to whose origin an exact date cannot be assigned, the line was first drawn between the greater tenants and the mass of lesser vassals who were summoned generally in the shires. This practice, which was in active operation in the reign of Henry II., received positive recognition in the terms of the Great Charter itself. The difficult matter to ascertain is the qualification of blood, or tenure, or English peerage identical with the house of lords. 1 "In England, . . the primitive Assembly never died out; it never was trampled out; it simply through the natural working of causes of which I have already spoken - shrank up into a narrow body. Through that law of shrinking up, the old democratic Assembly lived on to become the aristocratic element in a new form of the constitution. That is to say, I believe that the primitive Assembly was, by lineal personal succession, continued in the Witenagemót, and that the Witenagemót is, by lineal personal succession, continued in the House of Lords." - Freeman, Comparative Politics, p. 232. estate by tion for follow such special privilege, which entitled the greater tenants to receive the special writ. Upon what principle were those who received the special writ distinguished above their fellows? The theory is that the holding of a feudal estate by the pe- The holdculiar tenure of barony was the original qualification which of an entitled the tenant-in-chief to the right of personal summons, barony the original -"the baronage of the thirteenth century was the body of qualificatenants-in-chief holding a fief or a number of fiefs consol- personal idated into a baronial honor or qualification." 1 It seems to summons; be clear, however, that a special summons did not necessarily although follow tenure by barony, that the holding by such tenure writ did not the special was not of itself a sufficient ground for requiring attendance necessarily in parliament. It follows, therefore, that the right to receive tenure. the special writ was not an incident of tenure merely. Only by the actual reception of the writ was the dignity of peerage conferred upon the holder by barony. But not until this right to receive the king's writ had become hereditary was the status of the peer ultimately fixed and determined. The hereditary right to receive the writ, rather than the tenure The herediwhich was the original qualification for the writ, finally be- tary right came the constitutional basis upon which the peerage now reposes. As the process of feudalization advanced, the inher- of peerage. ent power of the king, as the fountain of honor to determine who should be summoned as barons, gradually became subject to the limitation imposed by the feudal rule of primogeniture. Feudal rule of primoIt is generally conceded that certainly during the reign of geniture. Edward I. the right of a baron-whose ancestor had been summoned and who had once sat in parliament - to claim the hereditary right to be so summoned was clearly and firmly established.2 The right thus established was ulti- Peerage by mately defined in that rule which provides that where a scends by peerage has been created by writ the right descends by operation operation of law to the heirs of the person so ennobled, without words to that effect in the terms of the writ itself. 1 Stubbs, Const. Hist., vol. ii. p. 178. 2 For the authorities upon the subjects restated in this section, see above, PP: 353, 354. 3 See Blackstone (Sharswood's ed.), Comm., bk. i. p. 399. "The blood of a temporal lord is considered as ennobled by a writ of summons to parliament, and taking his seat under that writ; and unless the terms of the writ, to receive the writ the real basis writ de of law to the heirs of nobled. person en the peer and barons Under this rule a barony created by writ could, in default of Heiresses. male heirs, descend to baronial heiresses, who, although they could not themselves sit in the king's council, conveyed to their husbands the presumptive right to receive his sumDegrees of mons. The hereditary peers thus created by writ were dignity in designated - prior to the reign of Edward III.-by the age earls titles of earl and baron only.2 The former dignity, which descended from the Old-English system, was generally embraced, however, in the latter term. Upon the comprehensive title of baron, which was common to the whole peerage, the higher titles of duke, marquis, earl, and viscount were simply superimposed. In the reign of Edward III. the title of duke was for the first time conferred upon a subject, and, what is more important, the new dignity was created by letters patent. This new method of creation by patent created by instead of by writ gave rise to an important innovation. only prior to Edward III. A duke patent. A baron created by patent in 1387. The dignity conferred by the new method did not descend generally to the heirs of the person ennobled; its descent was prescribed and limited by the terms of the instrument by which it was created. The result of the new method of creation was to limit the descent of the peerage to a particular line of succession, generally to the heirs male of the person ennobled. Prior to the reign of John, the ancient dignity of earl seems to have been generally derived from patents of the crown. In the reign of Edward III. the title of duke was so granted, and in subsequent reigns the titles of marquis and viscount. But not until the reign of Richard II. was a baron pure and simple created by patent instead of by writ. In 1387 Richard II. created John Beauchamp of Holt, a baron by patent, and from the twenty-fourth year of Henry VI., barons were generally created in that manner. To the two 1 "They even sat, after the death of 2 Lords' Report, vol. ii. p. 65. 4 Ibid., vol. ii. p. 186. "The dignity of Cornwall. In the patent for this pur- 5 Lords' Report, vol. i. p. 69. 7 Ibid., vol. i. p. 345. The language of the Report is, "which is commonly considered as the first creation of a baron by patent." 8 See Nicolas, Hist. Peerage (Courthope ed.), p. 291; Stubbs, Const. Hist vol. iii. p. 437. |