LECTURE XXI.

Earls or Counts as distinguished from Barons—The office of Counts—Their condition after the conquest—Counties Palatine in England—Counties Palatine in Ireland—Spiritual Peers—The trials of Noblemen.

In my last lecture I treated of baronies, which are the lowest rank of peerage, and of the right whereby this class of nobles sits in the great council of the nation, and also of the various methods that have prevailed in different ages of creating them; but before I have done with the higher nobility, it will be necessary to say something of earls or counts as distinguished from barons; for they differ from them, not only in having a greater number of knights fees, and consequently having a greater revenue, but in possessing also a more extensive jurisdiction. The institution of counts, I observed in a former lecture, wherein I treated of the progress of the feudal law, was not, originally, a part of the feudal policy. They were, indeed, always chosen out of the king’s companions, who resided in his house, and were therefore called comites, but they were not set to preside over Germans, who were the conquerors, but over such of the old inhabitants, Romans or Gauls, who by a voluntary submission had retained their freedom, and who in every respect, except bearing a share in the legislature or government, were on an equal footing with the conquerors[261].

The office of these counts was threefold, to judge these freemen in peace, to conduct them in war, to manage the king’s demesnes in their respective districts, and to account with him for them and the profits of his courts of justice; which were very considerable when all offences were punished by fines. At the beginning they were temporary officers, but they soon became fixed for life, and at length, towards the latter end of the second, and in the beginning of the third race in France, they got, through the weakness of the crown, estates in fee in their counties; and either by grants of the kings, or by usurpation, converted the profits they before accounted for to the crown, for their own use, and held their courts in their own name. In short, they became petty sovereigns, paying only homage, and the usual services of ward, marriage, and relief to their supreme lord; and as such they coined money, levied war against their neighbours, nay frequently against the king himself; until Lewis the Eleventh found the means of humbling them, and brought the crown out of tutelage, as the French express it[262].

The present state of Germany is an exact representation of what the French and the other continental monarchies were in those days, except that the kings had large countries, and multitudes of vassals immediately subject to them; whereas the emperor hath now none. But in England these lords, tho’ very powerful, never ascended to such a pinnacle of grandeur. Their first constitution here we must refer to the time of the division of England into counties, to which they had a reference, which is generally ascribed to Alfred. Their power and office was exactly the same with the counts on the continent in those early times, namely, to judge and lead the freemen to war. For the greatest part of the lands of England were at that time allodial, as is proved by Spelman, contrary to the opinion of Sir Edward Coke; although, with him, it must be allowed, that there were fiefs also before the Conquest, and that they were not all introduced at that period. Till that time their office was only for life, and they were known by various names, as duces, comites, and consules in Latin, ealdermen in Saxon, and earls in the Danish tongue[263].

But William, having turned all the lands into feudal, was obliged to put his earls on the same footing, that those on the continent were in his time, and consequently to make them hereditary. However he and his successors were careful not to give them such extensive powers and revenues as they had abroad. The county courts were held in the king’s name, neither were the earls allowed the whole profits of them, two-thirds of them being reserved to the king; and in appearance to ease them, who were often obliged to attend in council or in war, but in reality to prevent the king’s being defrauded, and to prevent the too great influence which their judging in person might acquire to them in their districts, officers chosen by the people, and approved by the king, were substituted to administer justice under the names of vice comites, or sheriffs; these were to pay to the king the two-thirds, and to the earl his third of the profits, which was in those times looked upon as so incident to an earldom, as to pass with it, although express words were wanting; so that in those times an earl and a county were correlatives[264].

Each earl took his title from some one county, and the number of the one could not exceed that of the other. King John, however, altered their nature in some measure, and his example has been followed in depriving the earl of the thirds of the county profits; for he created Henry de Bohun earl of Hereford, and granted to him twenty pounds yearly, to be received out of the third penny of the county in lieu thereof. But it is plain that the justice and success of this invention was doubted of at first, for John took a collateral security from the earl, that he should never in his earldom claim any more than the twenty pounds expressly granted him. These sums, so granted, are called creation money, and were formerly expressly granted out of the third penny of the county; but of late have been made payable at the Exchequer. Such was the nature of the ancient earldoms that were by tenure, and had reference to counties. The modern ones, that are merely honorary, and go with the blood, were first made in parliament. Afterwards the king was allowed, by his sole authority, to advance a baron to a higher rank; for that was not adding to the number of the peers; but the creation of a bare gentleman a peer at once hath only been practised since the accession of Henry the Seventh[265].

Before I quit this head of earldoms, it will be proper to say somewhat about counties palatine which had extraordinary privileges, like unto the counties and duchies abroad. The first was that of Chester, erected by the Conqueror, in favour of his nephew Hugh Lupus, in these words: Totumque hunc comitatum tenendum sibi & hæredibus, ita libere ad gladium, sicut ipse rex tenet Angliam ad coronam. The effect of this creation was to have jura regalia; for the earl palatine might pardon treason, murder, and other offences, might make justices of assize, gaol delivery, and of the peace; might create barons of his county palatine, and confer knighthood. They had likewise all forfeitures, that arose by the common law, or by any prior statute; but forfeitures arising from statute, made after the erection of the county palatine, belonged to the king. They had courts as the king had at Westminster, and out of their chancery issued all writs, original and judicial. Neither did the king’s writs run within the county palatine, except writs of error, which were in the nature of appeals, or in cases where, otherwise, there would be a failure of justice. All manner of indictments and processes were made in the name, and every trespass was laid to be done against the peace of him that had the county palatine. But these and some other privileges have been taken away, and annexed to the crown, in whose name they must now be; but the teste of the writs is still in the name of the earl palatine[266].

Of these counties palatine there are now in England four, Lancaster united to the crown, Chester to the principality of Wales; Durham and Ely, each belonging to the bishop of the place; but the privileges of these two are going fast into disuse. But in this kingdom, (Ireland) for the encouragement of adventurers, the whole country, as fast as it could be reduced, was erected into palatinates, and very little, except the cities, retained in the king’s hand. The making so many great lords, who had frequent quarrels with each other, and that at such a distance from the seat of government, was one great occasion of the slowness of the settlement of the kingdom. For, to strengthen themselves, such of them as resided here attached the natives to them, and taught them the use of arms, and others that dwelt in England entirely neglected to send hither any defence, so that, by the end of Edward the Third’s time, the Irish had repossessed themselves of almost the whole kingdom, if we except five or six counties; whereas in John’s reign they held not above half, and that under homage and tribute, either to the king, or the lords, who had grants from him.

I shall give a short detail of these palatinates, and an account of the manner of their distinguishment. The present county of Gallway, under the name of the county of Cannaught, was a palatinate in the De Burghs; as was Ulster, first in De Courcy, then in De Lacy; and these two were united by De Burgh’s marriage with Lacy’s daughter, and afterwards descended to Lionel of Clarence’s daughter, who married the earl of March, and, in the person of Edward the Fourth, merged in the crown. In the same prince, likewise, merged that of Meath, which, being in another branch of the Lacy’s, was divided into the eastern and western between two daughters. The former came by descent to the house of March, and so to Edward the Fourth. Strongbow had the grant of Leinster as a Palatinate, which at length was divided into five distinct ones between his grand-daughters, who being married to English noblemen, took no care for the defence of the country, their titles, estates, and Jura Regalia were taken from them by act of parliament, under Henry the Eighth.

Kildare, being in the hands of the earl of that name, escaped for a little time, until he was attainted under the same king, where it ended; for though his heir was restored to the title and estate by queen Mary, it was with an express exception of the palatinate. The kingdom of Cork, containing that county and the south of Kerry, was another palatinate, granted to Fitz Stephen and Cogan, who made partition between them; and on Fitz Stephen’s death without issue, his part escheated to the crown. Cogan’s share should have gone to the Courcey’s and Carens, but they could never obtain the possession of it; for the earl of Desmond got the estate by purchase from a Cogan who pretended a right, and held it; so this share of the palatinate fell likewise into disuse. Desmond, indeed, had interest enough to get a new palatinate created for himself in the county of Kerry, called Desmond, which for repeated rebellions was justly forefeited to queen Elizabeth.

Edward the Third erected the palatinate of Tipperary in favour of the earl of Ormond, who was grandson to Edward the First, which continued in that family, with some interruptions, until the attainder of the late duke in 1715. Thus by degrees the crown regained the power it had parted with, and was at length enabled, though with difficulty, to reduce the whole kingdom, which had been well nigh lost by means of such profuse grants.

Besides the temporal peers, there are spiritual ones, that is the bishops, and, they have seats in parliament, which antiently many abbots also enjoyed. The original of this right was from the feudal customs. The priests of the Germans, while they continued pagans, were necessary attendants in their general assemblies, not only for advice, but the benefit of their prayers and divinations. When these nations embraced Christianity, they transferred the same veneration and honour to their new instructors and bishops; and sometimes other churchmen of eminence, though they held lands not by military tenure, but by what is called free alms, were, in every nation as well as England, members of the states of parliaments. But since the conquest they have begun to sit by another right, namely by their baronies; the conqueror having converted their estates in free alms into baronies, and to their great mortification, subjected them to military service[267].

Upon this head several questions have been propounded, as how far they are lords of parliament, and whether the clergy are a third estate of the realm, and sit solely in that right. This is a question of some importance, because if they make a distinct estate, no law would be good to which the majority of them did not consent. Certain it is that in France, the clergy made one estate, the nobility the second, the burghers the third; and in Sweden the peasants make the fourth, all sitting in distinct houses, the majority of each of which must concur. And therefore I do believe, that when, in England, we talk of three estates, the clergy, not the bishops alone, make one of them, contrary to the modern opinion, that the king is the first estate, and the bishops and the nobility the second; for the king is in no country reckoned one of the estates, but the head of all. However from this no argument can be drawn that the bishops should sit separately, or that a majority of them, as representing the clergy, should concur.

As to sitting separately, it is pretty clear that, by the old law, none were members of parliament, but the immediate military tenants of the king, and that they sat all in one house, however their titles and fortune might differ; being all equal as to rank, with respect to the king, and all having the same rights. The division of parliament into two houses was never known in Scotland, who, in all probability, modelled their constitution from their neighbours; nor doth it appear in England previous to Edward the First, but arose, probably, from the great barons disdaining to sit, as equals with citizens and burgesses. For even, after this time, they did not disdain to associate with the knights of the shires, who represented the minor barons, and other military tenants, as appears by many instances. But for a number of centuries past the gentry, which were formerly considered as a lower noblesse, and are so abroad, have been melted into one body with the other commoners[268].

If then there was originally but one house, and if, since the division, the bishops have constantly sat in the house of peers, there can be no pretence for any privilege for them more than for the body of barons or earls. It is urged, likewise, that several valid acts of parliament were passed without any bishop present; but this happened only in distracted times; and, whoever might think it prudent or proper to absent themselves at a particular season, it will hardly be said to be a good parliament when they were not summoned; and if, at any time, they refused to attend, there was no reason why the public business should stop, as they sat, not as an independent constituent part of parliament, but each distinctly for himself, in right of his barony. From these occasional and general absences of theirs, an opinion grew up by degrees, and now is established law, that there is a material difference between bishops and lay lords, in respect to their nobility. In truth, that they are not peers to each other, and consequently that a bishop cannot sit in judgment on the life of a peer, neither is he to be tried by the peers, but by a jury of commoners.

It is worth while to see how these opinions grew up; for, from the original constitution, every bishop, being a baron by tenure, and having a fee simple therein, had certainly as great right as other barons; but the canon law having forbid any ecclesiastics being concerned in matters of blood, and they being obliged by the common law to attend judgments in parliament, were in a great streight between the two laws, how to act when a peer was capitally accused. They at length obtained from Henry the Second in the constitutions of Clarendon, the following allowance: Et sicut cæteri barones debent interesse judiciis curiæ, regis quousque perveniatur ad diminutionem membrorum, vel ad mortem; where the last words are plainly an exception in their favour, in derogation to the common law, on account of their peculiar circumstances under the canon. However, as many questions might arise before it came to the last vote, that might intirely influence the final determination, they used to absent themselves totally, and this going on for ages, and the feudal baronies wearing out, and all titles becoming fixed to the blood, not to the land, they came to be considered as peers of a different nature, because their blood did not succeed, and that which was first a favourable permission, was construed a prohibition; and when this was once established, it followed necessarily, that, not being peers to the nobility by blood, they must be tried by commoners[269].

With respect to the trials of noblemen, now I have said so much on that head, I shall observe, they were carried on in two different methods. Either the accused person was tried in parliament, and then all the temporal lords had voices, or he was tried by a jury of peers; that is the king appointed twenty-four noblemen for that purpose: A law that has proved fatal to many noblemen, who happened to fall under the displeasure of the court. A commoner hath a right to prevent the sheriffs returning a jury to try him, if he can shew a just exception to the sheriff; and after the return is made, he can challenge a certain number for causes known only to himself, and as many more as he can prove sufficient matter of exception to. Such care did the law take of the lives of the commons, but no exception lay for a peer to the king’s return. The law would not suppose the least partiality in him, even in his own cause; neither would it suspect that a peer could be biassed by any consideration from doing strict justice, and therefore no challenge lay against him for any cause, however strong and notorious; and the same confidence is the reason why they give their votes, guilty or not guilty, not upon their oaths, but upon their honours.

I can scarce imagine that this method of trial could have prevailed in the times of the great power of the barons, when they often made the crown to totter; neither have I been able to discover its beginning. Certain it is that, in the reigns of the Plantagenets most, if not all noblemen, were tried in full parliament; and as certain it is, that, during the reigns of the Tudors and Stuarts, the other was universally followed; insomuch that every nobleman was sure either to suffer or escape, according as the court was at that time affected towards him. At length, after many struggles, about 1695, the bill for regulating trials for high treason and misprision of treason was passed; one clause of which provides, that on the trial of peers, every lord who hath a right to vote in parliament, shall be summoned, and have a right to vote. Thus was the inconvenience attending the king’s naming the jury remedied; but the law in the other point stands as before, that no peer can be challenged. According to this law have all trials of Irish peers proceeded since that time, though there is no act for that purpose in this kingdom[270].