Milne may be trying to provoke 56 pages but I will disappoint him.
Post by g***@gmilne.demon.co.ukI have read Mr. Howard's posting and will try to summarize his points
1). Whether tenure 'in baroniam' existed.
2). Whether feudal barons had a right to attend the King's Court, which
evolved into Parliament. In this context Derek Howard looks at feudal
aids.
3). Whether there was ever such a thing as a title of honour derived
from holding land 'in baroniam'.
TENURE IN BARONIAM
Mr. Howard's argument
I am quite happy for the views I support to be called mine even if
Milne says it is "nothing personal" but I prefer to stand on the
shoulders of those who have researched thoroughly with largely
consistent results. However, Milne is the sole author of his own
revisionist dream history and I am equally happy to criticise that
personal theory of his in his name.
Post by g***@gmilne.demon.co.ukThe core of Mr. Howards argument seems to be in the passages 'Maitand
has shown that there was no such tenure, at least in England in the
mid-thirteenth century and later' and 'though Sanders does accept the
existence of tenure in baroniam, at least in the first couple of
centuries after the Conquest though even he states that by the 13th
century it was a matter of record and not living fact'.
My response
Mr. Howard seems to accept that tenure in baroniam did exist at one
time but I am unclear by what is meant by the statement that 'by the
13th century it was a matter of record and not living fact'. When the
word 'record' is used does this mean legal record? I am not sure (and
Mr. Howard does not explain) but the issue is the LEGAL existence of
tenure in baroniam, so the extent to which it might be regarded as
obsolete in practice is irrelevant.
Sanders and Painter and others accept tenure in baroniam existing in
the 11-14th centuries. However, all scholars from Selden to Wagner have
come to the conclusion that the only possible definition is a modern
one that the status of a barony can _only_ be established by seeing if
it ever paid baronial relief.
The tenure did not exist in the later middle ages and I have already
cited Maitland's evidence. My quote about it having become a matter
of record and not living fact is from Sanders. Selden, Sanders and
Painter had all examined huge quantities of primary material and come
to the same conclusions. If Milne would care to produce a legal written
document from the 13th century that states unequivocally that there
were "titles of honour" of baron in existence applicable to the
holders of tenurial honours, I should be interested in what evidence he
has. So far he has only been able to refer to the general terminology
of Magna Carta with which I have dealt.
Post by g***@gmilne.demon.co.ukMilitary tenure had been obsolete
for hundreds of years before it was legally abolished in 1660 and the
fact that it was abolished in 1660 proves that it continued to exist
for over 300 years after it has ceased to be a 'living fact',
Milne has not read the 1660 Act in full. It did not specifically
abolish tenures per baroniam. It abolished tenures by knight service,
knight service in capite, and socage in capite of the king (this last
disposes of Milne's arguments that conversion to socage left it as a
feudal tenure held directly of the king). The effect was to abolish all
military tenures. (There was a savings clause for tenure by
frankalmoigne, copyholds and honorary services of Grand Serjeantry).
For Milne to be taken seriously he has to prove that there was any
tenure per baroniam in existence immediately prior to 1660. According
to Selden by 1630 they were all held by knight service and he
maintained it was *abusive* to continue calling them baronies.
Post by g***@gmilne.demon.co.ukgiven that the last full military summons was in 1327. I think the point here
is that Sanders (who Mr. Howard quotes as an authority) traces SEVERAL
HUNDRED BARONIES down to 1327,
Milne again shows he has not read the material. Sanders notes 131 that
at some time or another before 1327 can be shown to have been held per
baroniam and around another 70 where they may have been but there
simply is insufficient evidence - in particular no payment of
baronial relief. Where are these several hundred? Milne seems to be
getting an allergy to Sanders. Perhaps because he cannot refute the
detailed evidence and conclusions drawn.
Mr Fleming, acting for the claimant in Milne's beloved Berkeley case
(12 Jul 1860) , acknowledging that territorial baronies could be
destroyed, eg by alienation without licence, referring to the barony of
FitzWalter, stated that the barons FW were called to Parliament by
virtue of "Personal Honour", the territorial barony having been
destroyed. This is in the Berkeley claimants case!
Yes, Milne is on notice, being in the HoL on Tuesday I took the
opportunity of going upstairs to the Record Office and I had the
pleasure of starting to read through the case files which are most
instructive and I have not finished.
Post by g***@gmilne.demon.co.ukthe date of the last full military
summons in England, and we therefore know the actual names of several
hundred barons (or co-heirs) in 1327, some of whom, of course, were
summoned to Parliament after 1264, such as Thomas de Berkeley
(1245-1321), who therefore became, by an erroneous modern concept,
barons by writ.
The Attorney General noted in the Berkeley case (10 Aug 1860) that the
claimant was indulging in the "mischief of confounding Land Honours
with Titular Honours". So Milne is not the first. The AG further
noted that the case of the Duke of Buckingham "proved that it is a
writ of summons not the occasion or reason of the writ of summons that
constitutes the status of a Lord of Parliament".
Post by g***@gmilne.demon.co.ukWe must remember, however, that the men who attended
the first Parliament in 1264 had no conception that they were doing
anything different from previous years, that the king who summoned them
had no concept that by doing so he was making them hereditary peers and
certainly no-one had any concept that feudal barons were obsolete;
these are all modern ideas. Sanders stops at this point merely because
it is a matter of convenience to him; there is no suggestion that
baronies ceased to legally exist in 1327. So do we all accept that
tenure 'in baroniam' (and therefore baronies) existed in law in 1327?
No. Sanders has pointed out that they are an estate, that they served a
military function and that this function ceased. The tenure did not
exist "in law" as Milne puts it as such a concept regarding tenures
had not fully developed. Tenure per baroniam was simply a Crown demand
for certain services and reliefs. These ceased to be demanded.
Post by g***@gmilne.demon.co.ukI hope so. The important point here is that we have established the legal
existence of tenure 'in baroniam' (and therefore baronies) in 1327,
more than 60 years AFTER the first so-called Parliament of 1264, when
(it is held) the first baronies by writ were created. Now, if tenure in
baroniam existed in 1327 exactly when and how was it later destroyed as
Mr. Howard claims?
As Painter, Selden and Sanders claim. See below for Painter's
conclusions with which I concur.
Post by g***@gmilne.demon.co.ukMr. Howard appears to argue that tenure in baroniam
was lost through desuetude (but, perhaps unsurprisingly, he doesn't
actually expand on this point), that is non-use. Put simply, this
argument is wrong, as I have previously demonstrated in this forum, on
account of two fundamental doctrines of English law, the doctrine of
the presumption against taking away rights and the doctrine that the
law itself cannot fall into desuetude, which means, basically, that
once a law exists it continues to exist for ever unless it is repealed
by lawful authority (i.e. an Act of Parliament).
Tenure by its nature in the early middle ages was not set in legal
stone but was evolving. Tenure per baroniam was not a statute or
customary law. Milne should read more on medieval tenure. If the late
medieval lawyers did not recognise it and it does not appear in any
legal records it did not then exist.
Post by g***@gmilne.demon.co.ukSo my view is quite
simple. Tenure in baroniam existed in law at a point in time (e.g.
1327) and it was not removed by any Act of Parliament before 1660;
therefore it continued to exist in law until that date (at least), just
like feudal military service in fact, over which there is no dispute.
Of course that statement would be disputed. But that is what Milne
seeks. Feudal military service did not exist to 1660! The Crown did not
raise its armies feudally after the mid 14th century. The feudal
incidents of tenure by knight service existed. Milne should attempt to
be accurate but it would not serve his propaganda purposes.
Post by g***@gmilne.demon.co.ukMr. Howard makes much of the apparent uncertainty which existed at that
time as to who was and who wasn't a baron. I think there was an
element of doubt at that time but only in relation to the powers of a
baron not in relation to identification. A barony was basically a
jurisdiction
Milne has said this several times drawing on the later Scottish model.
It was not true for English feudal baronies. Many did have rights of
sac and soc or often infangentheof and sometimes utfangentheof but not
all and equally these rights often were also held by others. Milne
should read Painter on this. Selden (1631, p 848) recognised "Fossam
& Furcam" as one of the bases for Scottish baronies but not so for
English feudal baronies. A barony was basically a land grant in return
for military services.
Post by g***@gmilne.demon.co.ukand I suspect that the rapid development of the legal
system in England (and particularly the expansion of the powers of the
King's Courts) meant that many barons quickly lost the rights of high
justice (powers of life and death) that had distinguished them from
other tenants in chief.
See above. This was not the distinguishing feature.
Post by g***@gmilne.demon.co.ukHowever, the fact that today we have difficulty
in determining what distinguished a baron at that time does not mean
that people at that time were similarly confused; the authors of Magna
Carta clearly knew exactly what they meant by the term.
The authors of Magna Carta were self interested not interested in
establishing rights for everyone. Anyone who has been involved in
writing major treaties will tell you how to achieve a deal some
obscurity and lack of clarity is often needed. Painter and Sanders both
repeatedly make the point that no-one , not even the officials of Henry
III, new precisely who held per baroniam nor why nor what precisely it
was!
Post by g***@gmilne.demon.co.ukMr. Howard says
that we can only tell who was a baron by identifying those who paid
baronial relief but ask yourself this question Mr. Howard - 'How did
people in those days identify who should pay baronial relief?'
The King decided to make a claim. Sanders and Painter have both stated
that when written records began to be common this claim was often able
to be challenged. A claim to hold of by knight service was enough to
stifle the Kings claim to baronial relief. There are a number of
recorded cases of this happening. Often it was cheaper to hold by
knight service. Milne should really read the numerous examples cited by
the authors I have referred to.
Post by g***@gmilne.demon.co.ukTHE RIGHT TO ATTEND THE KING'S COURT (LATER PARLIAMENT)
Mr. Howard's argument
Mr. Howard's argument is that neither the major barons (tenants in
chief who held 'in baroniam') or the minor barons (tenants in chief by
non-baronial tenure i.e. freeholders)
In England freeholders were not minor barons. The only exception to
this is found in the aldermen of London who in the 12th century were
known as barons, and the citizens and aldermen of the Cinque Ports
whose representatives in the House of Commons continued to be known as
barons. This represents the residue of an ancient usage of the term
baron for man.
Post by g***@gmilne.demon.co.ukhad a right to attend the King's
Court/Great Council/Parliament.
I have shown this was an obligation if called on and not a right.
However, Milne really should read more deeply.
He should for instance read Sidney Painter : Studies in the History of
the English Feudal Barony, John Hopkins University, 1943. In particular
pages 48 -56.
"In general feudal theory began to grow logical and orderly in the
late twelfth and early thirteenth centuries. The Norman and early
Angevin kings were far more likely to consider political reality than
feudal theory", (p. 49).
"As there is no evidence that an assembly like the one described in
Magna Carta was ever summoned either before or after 1215 and the
chapter providing for it did not appear in later issues of the charter,
I am forced to the conclusion that this body was an abortive
innovation."
"At least 2 of the 25 "barons" chosen to enforce Magna Carta were
not tenants by barony." Being referred to by the generic term "a
baron" does not mean that someone held a barony nor did they hold a
title of Baron. (Indeed, none of the 25 "barons" used the title
Baron in any of the documents given by Holt in "Magna Carta").
.... "the assembly provided for by Magna Carta fell into the
oblivion it deserved".
Painter also examined the composition of the Great Council based on
surviving lists of those called to parliaments under Henry III and
after the accession of Edward I. "Many scholars have studies these
lists and compared them with the system mentioned in Magna Carta. The
accepted view seems to be that if the general summons of all tenants in
chief by the sheriffs was ever practiced, it ceased before our series
of lists begins" (p. 50). In other words, there is not the slightest
evidence that this general summons ever took place.
Painter further examined the belief that the "major barons" of
Magna Carta can be identified with tenants by barony. He concluded:
"There seems to be no sound reason for refusing to give the term
"major barons" as used in Magna Carta its natural meaning - the
more important barons. Men of comparatively modest position held by
baronial tenure. ... In short the term "major barons" had *no
tenurial meaning*". [My emphasis]. "This leads to the conclusion
that under the system provided by Magna Carta tenure by barony had no
connection with the obligation ..." [note he does not say right]
"... to attend the Great Council except in so far as all tenants by
barony were tenants in chief of the king".
Turning to the reign of Henry III, Painter repeats an assertion to be
found also in detail in Sanders: "... the crown itself was none too
certain as to who were its barons by tenure".
Then Painter turned to examine the composition of the 1265 and 1295
parliaments. He identifies a number who were certainly not barons by
tenure and then looked at those summoned regularly by Edward I and
Edward II. His conclusion: "I am convinced that there was *no
connection between tenure by barony and being summoned to the Great
Council or Parliament*" (p 52) again my emphasis.
Painter advances an account of the transition from the assembly of
Magna Carta to those held by Henry III and the three Edwards. "The
general summons of tenants-in-chief through the sheriffs was never
used. It would have produced a hopelessly large and unwieldy body. The
Great Council consisted of men summoned by individual writs - the
great men, the prelates, earls, and majores barones. But in selecting
these men the crown was not limited by tenurial considerations.
Probably in theory the king could only call tenants in chief, but even
this restriction seems to have been little observed in practice. In
theory he could summon individuals from all the classes mentioned in
Magna Carta, and in practice he called whomever he pleased" (p 55).
"tenure by barony had lost much of its importance by the time of
Magna Carta and declined steadily in significance thereafter. ... The
king chose his advisers among the rich and powerful. As barony by
tenure had ceased to be closely connected with wealth and power it was
ignored.
"To sum up, the weight of evidence shows that a baron owed no court
service beyond that expected from any tenant in chief of the crown.
Tenure by barony implied no special obligations or rights in this
respect. This does not mean that tenurial barons did not throughout our
period form the major part of the Great Council. They were the
magnates, the lords of castles and knightly vassals, the men of
political importance. When money income began to replace castles and
vassals as the basis for power, the tenurial barons as a class held
their place. Money came from franchises, towns and manors, and they
possessed these sources of wealth. As long as a tenurial barony of any
importance remained intact, its lord was likely to be a Parliamentary
baron. As time went on the old baronies escheated and were regranted in
parcels, became minutely subdivided among heiresses, or were alienated
by their lords. By the time the hereditary Parliamentary baronage was
well established, few tenurial baronies remained intact or even in
portions large enough to be of much significance. In fact barony by
tenure seems to have been forgotten between th elate fourteenth century
and its revival by Tudor and Stuart antiquarians" (p 55-6).
Post by g***@gmilne.demon.co.ukHe points out that only a small number
of the major barons were summoned to the King's Council. He also argues
that consent to aids or scutage (shield money) was not required, so
attendance by vassals to grant consent to aids or scutage was not
required.
My response
Mr. Howard confuses ORDINARY AIDS, EXTRAORDINARY AIDS and SCUTAGE. In
the first place scutage was not an aid as such, it was a commutation of
military service. In other words, people paid a sum of money (scutage
or shield-money) instead of serving personally in the army; the king
used scutage to hire mercenaries i.e. a professional army. This
arrangement suited everyone. Military service was unconditional in the
sense that, in the nature of things, war is unpredictable; you could
not say 'I will render military aid 2 times a year in March and
September' (You would look a bit stupid rolling up in your suit of
armour with the enemy quietly gathering in the harvest on the other
side of the Channel). Thus the king could summon military aid whenever
he needed it and no consent was required from his vassals. By extension
the same applied to scutage. Therefore, any argument that employs the
fact that consent was not required for scutage falls to the ground.
Yawn. I have not confused aids and scutage. Knowing Milne likes being a
weasel doubling as an eel, I included a comprehensive coverage of all
the aids and scutage up to the 14th century to show that the King did
not require consent for either! If Milne wishes to debate on aids and
scutage he had better start reading his sources and gathering his
evidence (and moving to a different newsgroup for that subject). His
guesses as to what should have happened for it to fit his theory just
are not good enough.
Post by g***@gmilne.demon.co.ukSimilarly, ORDINARY AIDS were part of the 'feudal contract' between
superior and vassal. The king could demand them in the appropriate
circumstances and no consent was required from his vassals. There were
3 ORDINARY AIDS which were (if I remember rightly) to pay the ransom of
the superior if he was captured in war; on the knighting of the
superior's eldest son and on the marriage of his eldest daughter.
Generally speaking, everything else was an EXTRAORDINARY AID and
required the consent of the king's vassals, that is it was outside the
feudal contract (but the king could levy a taille, I think it was
called, on his demesne tenants and on the towns according to their
charters - I am unclear on the king's precise powers in this area).
Not only did extraordinary aids demanded by the King require the
consent of his barons but the barons, in their turn, had to obtain the
consent of their vassals as well (If you think the baron's paid solely
out of their own pockets you have another think coming!).
Nice theory, shame about the practice.
Post by g***@gmilne.demon.co.ukMr. Howard points out that sections 12 and 14 of Magna Carta were
breaking new ground with regard to scutage and aids and implies that
before this time no consent was required to levy them. The actual
situation is as I have described above;
Evidence lacking as always with Milne
Post by g***@gmilne.demon.co.ukit was breaking new ground to
require consent for scutage and ordinary aids but not of course for
extraordinary aids. So what was the practical significance of
extraordinary aids? It will be appreciated that almost everything a
government does costs money. Now the king's power to raise money was
limited as we have seen and the original feudal concept was that he,
like his vassals, should manage on the revenue from his own demesne
lands but as the business of government expanded these revenues quickly
became hopelessly inadequate. The king could demand scutage but only
for war of course. He could demand the ordinary feudal aids but they
were pretty useless ('Pssst! If I allow you to capture me, could we
split the ransom?'). So, as the business of government expanded so did
the government's need for money to do the business of government. This
gave the barons considerable power since, basically, their consent was
required in order to raise revenue from a large chunk of the kingdom
and from the king's wealthiest subjects (i.e. themselves). In this way
the requirement for consent for extraordinary aids meant that in
practice government could not be carried out without the barons'
consent. In this manner they effectively acquired a right to a voice in
the government of the country. Pretty simple really.
Good at story telling, poor at scholarship, lacking evidence. The
problem is that things that are "pretty simple" in medieval England
are usually not what they seem - as one should expect. It says
something about the author of this theory though.
Post by g***@gmilne.demon.co.ukOf course, this begs the question as to what actually happened in the
case of extraordinary aids? Was every one of the king's tenants in
chief actually summoned to give their consent? Well, the short answer
is that I don't know; I don't think anyone has researched this specific
question. What I do know is that Hallam in his 'Middle Ages' quotes an
occasion when the barons that were summoned refused an aid because not
all those whose consent was required were present.
In conclusion I can do no better than to quote the Report of the Lords
'the records of the reign of King John seem to give strong ground for
supposing that all the King's tenants in chief by military tenure [not
just those holding in baroniam], if not all tenants in chief, were at
one time deemed necessary members of the common councils of the realm,
when summoned for extraordinary purposes, and especially for the
purpose of obtaining a grant of any extraordinary aid to the king.'
See Hallam's 'Middle Ages', vol. III, p. 211.
I have shown that this was not the case and could not have been the
case. Name me an extraordinary aid when all military tenants were
consulted? Hallam's supposition is not borne out by the evidence from
the records of the aids, as I have cited. Hence it was only a
supposition.
Post by g***@gmilne.demon.co.ukSo this covers the question of CONSENT. The consent of the barons was
required for extraordinary aids and this gave the barons a voice in
government because the business of government could not be carried out
without such aids; that is, the barons acquired a right to be consulted
in matters of taxation, which, in practical terms, meant government
generally.
Again this issue of consent - no evidence and I have shown it to be
otherwise.
Post by g***@gmilne.demon.co.ukThis leads me to the question of COUNSEL and this is another area where
Mr. Howard gets confused, that is between COUNSEL and CONSENT. Mr.
Howard points out that only a small number of barons were generally
called to the King's Council; he argues that this is proof that barons
did not have a right to be summoned but here we are dealing with the
giving of COUNSEL as opposed to CONSENT. The point is that feudal
vassals had a duty to give advice and counsel to their superior, so the
superior had a clear right to demand it (and of any vassal of his that
he wished).
Correct. A duty.
Post by g***@gmilne.demon.co.ukTo what extent a vassal had a right to give advice and
counsel (that is a right to be consulted - as opposed to giving
consent to extraordinary feudal aids) is somewhat less clear but simply
because the vassal had less power to insist upon it.
Milne admits that it is not clear. In fact it is unclear because there
are no instances of it.
Post by g***@gmilne.demon.co.ukIn practice, it
would be a very foolish king who did not obtain the advice of his more
powerful vassals and their effective consent as well. This reminds me
of the famous occasion when the de Bohun, Earl of Hereford (I think it
was) refused to accompany Edward I on campaign to France. Edward
apparently said to Hereford 'By God, Earl, you shall either go or hang'
to which the Earl replied 'By God, King, I shall neither go nor hang'
(and this to a man like Edward, at the mere sight of whom one of his
subjects had once dropped dead with terror). In any event, the fact
that the King could summon whoever he liked to give him COUNSEL does
not alter the fact the King did, as explained above, have to summon all
his immediate vassals in order to obtain CONSENT for an extraordinary
aid. It should be clear that both COUNSEL and CONSENT might be given in
the same sitting or session of the King's Council.
Might be!! There is no evidence that there was any right to attend in
the first place which is what the debate was about, not whether anyone
spoke when in the King's presence. Of course, Milne is seeking again
to alter the terms of the debate and drag it off to irrelevances.
Post by g***@gmilne.demon.co.ukThere is nothing
wrong with this of course, except it is clear that if the King summoned
a small number of barons to give COUNSEL and then asked for an
extraordinary aid, their reply would be 'Not on your life, buster, not
without the CONSENT of our peers.' Clearly, the idea of summoning all
the king's tenants in chief was both impractical and inconvenient (but
this is what actually happened in the early days of feudalism e.g. the
entire Frankish nation, at least the male half, used to gather every
March in what is now known as the Champ de Mars (the Field of March)
outside Paris for what was effectively an annual Parliament)
The name means "Field of Mars", from Mars the Roman god of war, because
it was originally used for military training. It was probably named
after the Campus Martius of Rome. Little to do with annual Parliaments
or the Franks! How Milne expects to be taken seriously with such simple
errors abounding I don't know.
Post by g***@gmilne.demon.co.ukand this
explains why a system of representation evolved from such an early
date; considerations of practicality meant that there was always a gap
between practice and the law. Sometimes of course (and tenure in
baroniam is a good example) it took several hundred years for the law
to catch up with practice. But remember, we are talking about the legal
existence of tenure in baroniam and the legal right to be summoned, not
what happened in practice.
Thus Mr. Howard's arguments fall to the ground. The requirement that a
vassal's consent was required for EXTRAORDINARY AIDS means that the
barons did have a right (a legal right) to be summoned to Parliament
because the financing of the WHOLE (peaceful) business of government
was, in the strict feudal sense, extraordinary in that it did not
relate either to the paying of a ransom, the knighting of the king's
eldest son or the marriage of his eldest daughter. Odd but true (and in
fact rather a good thing for democracy since it prevented the King from
taxing his subjects into the ground).
BARONIAL TITLES
Mr. Howard's argument
Mr. Howard argues that there has never been such a thing as a title of
'Baron' derived from a feudal barony. To support this he asserts a).
that charters granting lands to be held 'per baroniam' make no mention
of granting a title
I actually stated that no original grant of a tenurial barony survives
containing any evidence of any grant of a title. I have previously
pointed to the Berkeley forged grant and later royal confirmations as
to what was granted (no title). I have also pointed to post abolition
grant. Milne as usual re-writes in order to be able to attack. But
there are no other Royal confirmations of such a title. He would be
better seeking evidence of his claims.
Post by g***@gmilne.demon.co.ukand b). that in lists of various types the title of
baron is not generally used (or at least he produces a list - which
does actually inconveniently refer to several instances of 'the Baron
of [x]' - of examples of people called something other than 'Baron of
[x]' and asserts that because people were called something other than
'Baron of [x]' we can conclude that no-one was called 'Baron of [x]').
An interesting exercise in logic.
An interesting exercise deliberately in failing to read. The titles
Baron of X were barons by writ or patent. It illustrates the difference
in treatment between them and the lords of territorial honours. Indeed
the difference is obvious when they are held by the same person. Milne
knows this well of course but choses to have his "nice argument".
Post by g***@gmilne.demon.co.ukMy response
Mr. Howard makes much of the lack of the use of the title 'Baron' in
describing feudal barons but it is equally true that people summoned to
Parliament by writ (barons by writ) weren't called barons either
(Complete Peerage, Vol. I, p. viii-xxv) but Mr. Howard would not dream
of asserting that these people were not barons.
They are titled barons by virtue of it having been determined since
that they were but I doubt one would find the first ones using a title
of baron. No such determination has been made regarding holders of
territorial honours. Barons by writ only had a right to sit in the HoL
by virtue of the writs so there is no need to examine what titles they
are given. I am away from my books at present but I am sure an
examination of the Parliamentary writs would be instructive. More to
come on that perhaps if I can be bothered, though it would have no
impact on the issue of feudal barons.
Post by g***@gmilne.demon.co.ukMr. Howard confuses PERSONAL TITLES with FEUDAL TITLES. Feudal titles
were attached to land, which meant that that a man became a baron by
being granted a an area of land that had been erected into a barony
(but see below). There was never any personal grant of a title to the
individual (at least we agree on that point). In short, it was
understood (it didn't need to be stated) that if you were granted a
barony you became baron. This was exactly the situation in Scotland
until 2004 where crown charters did not usually (or rather rarely -
in fact I know of only one instance, namely Spynie) refer to the
grantee as a baron; they erected the lands into a barony and stated
that the lands were to be held 'in liberam baroniam' by the grantee.
Often the lands weren't even erected into a barony, they were simply
granted to be held 'in liberam baroniam'. There was no mention of a
title but it is a fact (recognised in law) that such a grant did confer
a title of nobility - the title of baron.
Where is this "fact (recognised in law)"? By whom was it recognised
and which law? Milne should not use modern Scottish history as a means
of interpreting medieval English history. Selden "THE expert" of
the 17th century, as Milne might have put it if he were honest, stated
that it was "abusive" to call holders of territorial honours barons
in his day. Now what was true in this respect in 1631 is certainly true
now.
Post by g***@gmilne.demon.co.ukIn fact, early grants not
only didn't erect the lands into a barony, they didn't even grant the
lands to be held 'in liberam baroniam', they simply granted the land
with the right of 'pit and gallows' (e.g. Seton in 1169) and this was
enough to erect a barony and of course confer the title of baron on the
grantee - the word 'baron', 'barony' or ' barony' simply didn't
appear in the charter (and they didn't need to).
Pit and gallows is a Scottish expression, not an English one. See
above.
Post by g***@gmilne.demon.co.ukHilariously, Mr. Howard quotes the Complete Peerage 'there is no
evidence that there was any conception of a barony as a peerage dignity
before the creation 10 Oct (1387) 11 Ric II, of John de Beauchamp as
Lord de Beauchamp and Baron of Kidderminster'. Now this is one of those
1). I define a peer as someone who has been granted a PERSONAL dignity
carrying a right to a seat in the House of Lords (i.e. a peer in the
'modern sense');
2). FEUDAL barons did not hold PERSONAL dignities;
3). Therefore FEUDAL barons were not peers.
There was no title of Baron held by anyone before the appearance of
baronies by patent. The title did not exist. That is simple enough even
for Milne. Not my definition. I never referred to personal or feudal
dignities in this way but of course Milne knows that. Milne wishes to
introduce different terms in order to confuse the debate. The debate
over the continued existence of English feudal baronies is however
defined by the terms of the 1660 Act which do not refer to
"personal" dignities but to titles of honour. Milne has to prove
that a holding of a tenurial honour was a title of honour - which he
cannot do; that there were such titles in existence in 1660 - which
he cannot do; and that such survived 1660 - which he cannot do. Hence
his wriggling and slithering
Post by g***@gmilne.demon.co.ukOf course, whether feudal barons were peers or not depends on your
definition of the word 'peer'. If your definition is limited to the
holders of PERSONAL titles, it is hardly surprising that the holders of
FEUDAL titles do not fall within that definition. (Killer argument Mr.
Howard)
Poor Milne. How sad if this is considered to be a "killer"
argument.
Post by g***@gmilne.demon.co.ukBut feudal barons were the original peers of the realm as I
have previously pointed out; there is no argument on this point (see
Magna Carta). Of course the whole point is that since feudal barons
were the original peers of the realm and since their right to sit in
Parliament was not only never been removed but specifically preserved
by the Tenures Abolition Act of 1660, they have continued to be peers
to this day, making them very much 'peers in the modern sense'.
Milne tries to divert the debate into one about "personal" versus
"feudal" barons, terms chosen to confuse and obscure. The debate
however is one as to whether holders of territorial honours held a
title of honour in 1660 (or rather 1645 for the Act backdates its
effects to then).
I would remind him of the terms of the 1660 Act he himself has cited.
The Lords amendment (for such it was - it was not in the original
draft):
"Provided also that neither this Act nor any thing therein conteyned
shall infringe or hurt any title of honor ffeodall or other by wch any
person hath or may have right to sett in the Lords house of Parliament,
as to his or their title of honor or sitting in Parliament, and the
priviledge belonging to them as Peeres, This Act or any thing therein
conteyned to the contrary in any wise notwithstanding". (HoLRO,
HL/PO/PU/11660/12C2n37, slip of parchment sown to the roll to insert
the clause at line 65 of membrane 2 - after the abolition clauses and
before the financial provisions which take up from m.2 to m.10). (The
1660 Act does not have the numbered sections Milne uses and he is
taking a secondary source).
I have not - yet - examined the Lords journals for 1660 to
establish the arguments laid but it is possible that some earldoms and
hereditary offices such the Earl Marshal or Constable, when not in
commission, carried a seat in Parliament worthy of saving (just as the
office of EM survived recent peerage changes). There was no need to
seek to maintain "titles" that never existed and for holders of
territories an importance that had been lost since before Parliament
and the House of Lords had ever sat.
Milne has referred on another thread today to "curious and illogical
blind spot you have about English feudal baronies (I feel a 56 page
post coming on)."
He goes on playing the fool with his web page. So be it, but his
ridiculous attempts to be taken seriously as an historian or an expert
on feudal or titular matters take a dive every time he posts on this
issue. Were he to read the works of those who have spent years
undertaking proper research on original material he would understand
the issue better.
It is intellectually dishonest to pretend, as Milne has done, that
there are two views on the issue of equal validity and demand that his
be recognised as an equivalent to well researched, argued and proved.
That is akin to accepting that the Flat Earth Society or the exponents
of "intelligent design" have an argument approaching the
intellectual rigor and academic and scholarly integrity of the
scientific views. I would have more time for him if he were to come to
this newsgroup bearing good arguments as to why three centuries of
scholars are wrong on all points and providing convincing evidence
particularly from original sources to support his case. But as his self
avowed purpose is a "nice argument" this is not going to happen.
Derek Howard