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A Case for feudal baronies: History & Law
History
To speak intelligently of England's Manors and Lordships is rather like speaking of automobiles: at law they are commonly defined and are regulated equally on the public motor ways; but who would deny the very substantial differences of quality and value between a Rolls-Royce Corniche convertible and a Ford Anglia? So it is among English Manors and Lordships and one of these defining characteristics is the tenure under which they were held.
Following the Conquest in 1066, Duke William of Normandy, called "The Conqueror," became King of England and imposed the Iron Canons of feudal law, Nulle terre sans seigneur; Nulle seigneur sans terre (No land without a lord; No lord without land), the traditional policy of Norman dukes. He gave English lands to many of his Norman followers and certain Anglo-Saxons, their heirs and their successors to hold of the new King, and his successors, to help govern the newly transformed Anglo-Saxon kingdom.
Norman and formerly Anglo-Saxon subjects who held lands immediately of King William became tenants-in-chief in right of the Crown; they were called "lords" and their lands, "manors." If such lands were large enough to be divided into smaller manors tenants-in-chief were called "lords paramount" and their manors were also known as land baronies or honours. It is speculated that there were 200-300 of these "feudal barons" immediately after Conquest. Subordinate tenants of lords paramount given smaller manors were also called "lords," but as a class they were inferior or mesne lords.
In this way, the Feudal Pyramid was constructed from the top downwards. The king was at the apex; his tenants-in-chief beneath him rendered military, spiritual and certain honourable personal services called "serjeanty" to him. In turn, tenants-in-chief received minor military, administrative, agricultural and skilled trade services from other occupants of their lands, the mesne lords, and freemen at the base of the pyramid. All of England became a unified structure; it's bricks were land and mortar a tangle of greater and lesser manorial lords.
When a certain territory was recognized as an honour and/or land barony, it retained that identity through all its fortunes. When a tenant-in-chief in right of the Crown's land barony fell into the king's hands through wardship or forfeiture because of attainder for treason, the estate continued as an honour or barony. Important legal meaning was attached to a manor that was named an honour and barony. They owed exceptional feudal duties and burdens. King George III's Royal Historiographer, Thomas Madox, explained the differences between them:
"Tenure of the King in Capite ut de Corona, as of his Crown; and Tenure of the King in Capite ut de Honoure, Baronia, Castro, as of an Honour, Barony, Castle, being in the King's hands."
When a tenant-in-chief in right of the Crown's Estate came into the king's hands did his mesne lord become the king's tenant-in-chief? Was his mesne lord now subject to the duties and burdens incident to chief lordship? No. That would have been unfair and it would have changed the terms of the mesne lord's tenure - violating his charter. So, it became necessary to distinguish between those tenants-in-chief who always held immediately of the king ut de corona and those who came to hold of the king by reason of their former lord's forfeiture to the king by escheat or wardship. These tenants were considered to hold of the king ut de escaeta or ut de Honoure where the tenant held lands of an Honour that came into the Crown by escheat or wardship or ut de persona where the tenant held lands of a lord whose lordship escheated to the Crown.
Law
England's Constitution and the whole of its public law rests squarely upon immutable principles of Feudal Custom and the Common Law. Some authorities on England's Constitution believe it to be "merely an extension of [England's] Property Law. It is a characteristic feature of English law from earliest times that the right of property has been particularly jealous of any attempt to limit or encroach upon it.
No statute of England, Great Britain or the United Kingdom extinguished the feudal baronage and peerage, and none bars their use or enjoyment of any "Title of Honour, Feodal or other" formerly used, enjoyed, or claimed by ancient constitutional declaration or prescription." To the contrary, The Abolition of Tenures Act, cap. 12, specifically preserves them.
Further still, The Law of Property Act, 1925, preserves the existence of manors, lords and the rights of lordship. Except for statutory rights of political representations, recreations of some feudal barons as modern parliamentary Barons by Writ and the creation of new modern parliamentary Barons by Letters Patent; the immutable principles of feudal custom and the Common Law remain unchanged. Halsbury's Laws of England notes that the dignity of peerage "can only be lost by attainder or an Act of Parliament." Attainder was abolished by The Forfeiture Act, 1870, and Parliament has extinguished peerages in only two instances. IN the fifteenth century, Parliament degraded George Neville, Duke of Bedford, because of his poverty (which rendered him unable to support the dignity of peerage). In this century, The Titles Deprivation Act, 1917, deprived three dukes and a viscount of their peerages for bearing arms against the Crown or adhering to its enemy in WWI.
In the sixteenth century, King Charles I's attacks on the rights of property owners evoked bitter resistance - ending in his execution and the Inter Regnum. The hapless king's efforts to exercise to the fullest his rights under feudal law, while perhaps legally defensible, resulted in much indignation and brought about the abolition of military and other chivalrous feudal tenures following the monarchy's restoration.
Before the Abolition of Tenure Act, tenancies-in-chief in right of the Crown were at law "lordships of the manor. They remains so today; honorable lordships and closest in relation to the Crown, but they were also subject to more burdensome feudal duties and services than were mesne or lesser lords of the manor. Among Parliament's first business following the Inter Regnum and restoration of England's monarchy in 1660, was enactment of 12 Car. II cap 25, the Abolition of Tenures.
The purpose of The Abolition of Tenures Act was to do away with the burdens of that feudal relationship which had by then become an irritation to the barons, and a source of friction between them and the Crown. The Act was not intended to destroy ancient dignities annexed to land or extinguish the feudal peerage of manor lords whose status as tenants-in-chief in right of the Crown created a special honourable relationship with the monarch.
The Act abolished all military and chivalrous tenures and the burdensome feudal services that Magna Carta 1215 thrust upon them. It cut away the luxuriances that had grown out of England's military tenures while preserving the ancient system's vigour. The Abolition of Tenures Act canceled the burden of required attendance at Parliament together with all of the other burdensome feudal obligations of chivalrous tenures, and converted them to common soccage. However, tenures to which "any title of honour, feodal or other" was attached or tenures held by grand serjeanty were preserved intact:
"XI. Provided also, and be it further enacted, That this act, or any thing herein contained, shall not take away or be construed to take away...the honorary services of grand serjeantry..."
"XIII. Provided also, that neither this act , nor any thing therein contained shall infringe or hurt any title of honour, Feodal or other, by which any person hath or may have right to sit in the lords house of Parliament, as to his or their title of honour or sitting in Parliament, and the privileges belonging to them as peers; this act or any thig therein contained to the contrary in any wise notwithstanding."
The language of The Abolition of Tenures Act, 1660, which reserved "Titles of Honour, Feodal [a Barony or an Earldom] or other, by which any Person hath or may have right to sit in the Lords house of Parliament' was consistent with the language of the Constitutions of Clarendon, 1164, affirming England's feudal law that baronies subsist in those who held of the Crown in chief. In later times, antiquarian and constitutional lawyers held that all subjects who possessed tenures as tenants-in-chief in right of the Crown before the Abolition of Tenures Act were Barons by Tenure. It was accepted doctrine as late as 1799:
"A proprietor holding immediately of the Crown, and having his land either erected or confirmed by the king into a free Barony is the only person, in strict law, denominated a baron...The baron is such a free lord as hath a lordship or baronie, whereof he beareth his name." (emphasis added)
This was also the earlier view of England's great jurist, William Blackstone:
"A baron's is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a Barony annexed to his other titles when an ancient baron hath been raised to a new degree of peerage...the origin and antiquity of baronies has occasioned great enquiries among English antiquarians. The most probable opinion seems to be that they were the same with our present lords of manors to which the name Court Baron, (which is the lord's court, and incident to every manor) given some countenance. All lords of manors, or barons, that held of the king in capite, had seats in the great council." (emphasis added)
It was also consistent with Blackstone's predecessor, John Selden, antiquarian lawyer and scholar:
"As the use of the word Baron, is to this day such as it denotes, in the most Honourable sense, only the Barons of Parliament, and yet it is variously communicated to some Officers of Courts of ordinary justice, to those of the Cinque Ports, and to the Lords of Manors...But in the most Honourable sense, it denoted the King's thanes or Tenants by grand serjeanty, or knights service in chief; who were joyned with Earls in those times as afterwards Barons were." (emphasis added)
None of the Magna Cartas, 1215, 1216 and 1217 or any statute from the Magna Carta, 1225, England's first statute, or any thereafter, take from the feudal peers their ancient right to the dignity and style of Barony and peerage upon which by summons by tenure rests. Magna Carta declares "No free man shall be deprived of his standing except by the law of the land." The Royal Prerogative, when exercised to create modern parliamentary barons and other peers, is not the law of the land. The Common Law and statutes enacted by the Crown in Parliament is the law of the land.
The Act for the Placement of Lords, 1539, refers to "Barons of the Parliament" in several of its sections. If the lawyers who drafted it thought it necessary specifically to identify "Barons of Parliament," they must have known of barons who were not summoned by name to Parliament; the feudal barons who did not receive the individual summons of Magna Carta, 1215.
Writing the Majority Opinion in Metropolitan Asylum District v Hill, 6 App Case 193, House of Lords, 1881, Lord Blackburn affirmed that:
"It is clear that the burden is on those who seek to establish that the legislature intended to take away the private rights of individuals to show that by express words or by necessary implication such an intention appears."
Lord Blackburn's statement of the law was strengthened in Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd, App. Case 744, House of Lords, 1919, in which it was the Lords' Majority Opinion that:
"The rule [as to Parliament's] intention to take away the property of a subject without giving him a legal right to compensation for the loss of it is not to be imputed to the legislature unless that intention is expressed in unequivocal terms. Apart from the force of public opinion, one of the protections of subjects' liberties is the rule of construction that statues and other legislative acts are, so far as it is possible, to be interpreted so as not to cause any interference with his vested constitutional rights."
Nineteenth century historian Maurice Powicke, author of The Thirteenth Century, 1216-1307, concurred:
"The idea that statute law was a separate body of written law, not customary...has never implied a superiority which requires no accommodation to the common law."
In 29 State Tr. 1, Rex v Cobbet, 1804, Lord Ellenborough declared, "The law of England is a law of liberty." Although the liberties of English subjects, and aliens under protection of the Crown, are not expressly defined in any statute they are implications drawn from two well-accepted constitutional principles:
"Subjects, and aliens under protection of the Crown, may say or do what they please provided they do not transgress the substantive law or infringe the legal rights of others; and the Crown may do nothing but what it is a authorized to do by some rule of the Common Law or statute."
It is true that the sovereign can do no wrong in the eyes of the law; but it is not true that the sovereign can act wrong or sanction the wrong acts of others contrary to the Common Law or statute. If the Royal Prerogative exercised to create titles, rank, places, preeminence and precedence in one class of persons effects an intended or unintended abrogation of the rights of another class of persons without authority of Common Law or an Act of Parliament such exercise of the Royal Prerogative is bad law. Magna Carta forbids the sovereign to make any grant or charter that derogates the public or private rights of subjects. The Crown's Estate Act, 1322 specifies that:
"The matters to be established for the estate of the king and his heirs, and for the estate of the realm and of the people, should be treated, accorded and established in Parliament, by the king, and by the assent of the prelates, earls, and barons, and the commonality of the realm, according as had been before accustomed."
The Bill of Rights Act restrains the sovereign from making any grant or charter in derogation of the Common Law or any statute law; and England's great historian Hallam also noted,
"There is not a single instance from the first dawn of our constitutional history, where a proclamation or order of council, has dictated any change, however trifling, in the code of private rights."
Nine years after The Abolition of Tenures Act, 1660, Charles II's Privy Council over-reached its constitutional authority and "discontinued" Barony by Tenure. At Common Law English monarchs had power to legislate by Order in Council (a relic of the time when legislation was part of the Royal Prerogative). The seventeenth century attempt to exercise that power was limited to legislating for newly ceded or conquered territories. Moreover, The Habeas Corpus Act, 1640, made it law "That neither His Majesty, nor his Privy Council, have or ought to have any Jurisdiction, Power or Authority...to examine or draw into Question, determine or dispose of the lands, tenements, Hereditaments...of any the Subjects of this Kingdom."
It is now well-settled law that a Sovereign's Proclamation may not enact any new law, or contradict any old law, or extinguish or restrict a subject's rights in matters about which the law is otherwise silent. With few exceptions, Titles of Honour are not a matter of statutes; mostly they have their origin in the Royal Prerogative or in ancient constitutional declarations and prescriptive usages with which the Crown may not interfere.
