Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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].