Page:The Complete Peerage Ed 2 Vol 4.djvu/705

 APPENDIX H 683 and there is another century (1166-1266) during which these tenures still supply an army, though chiefly by supplying the pay for an army; and that when Edward I is on the throne the military organization which we call feudal has already broken down and will no longer supply eitlier soldiers or money save in very inadequate amounts. Howcer, just while it is becoming little better than a misnomer to speak of military tenure, the law about military tenure is being evolved, but as a part rather of our private than of our public law. The tenant will really neither fight nor pay scutage, but there will be harsh and intricate law for him about reliefs and wardships and marriages that his lord can claim because the tenure is military .{•) Although it is not proposed to follow the evolution of our modern Parliament from the King's Court (the Curia Regis) and the Council, we must, in order to avoid a confusion of terms and ideas, keep in mind the status of the baron at this time. We have remarked that we have reached the period when tenure began to be qualified by writ. This very imperfectly expresses the position of the larger landholders other than earls in the time of Edward I. The man who held by barony was very much at the King's mercy. If he was summoned to Parliament, it was his duty to attend, and he might be fined for absenting himself; but it does not appear that he could claim a writ of summons by virtue of his tenure. The King was now asserting his prerogative to choose his advisers, and the lists of writs, by their great varia- tions in the number summoned, show that the issue of a writ depended entirely on the King's will; for a summons to a man was not necessarily repeated, nor followed by one to his son who stood in the same relation to the Sovereign. To those who lived in parts remote from the place ot meeting the summons was a burden, and applications for exemption from attendance were common. None of those summoned can have regarded the summons as a privilege; it imposed a duty which was tolerated or disliked according to the recipient's topographical and financial position. That it had any meaning or intention other than that expressed by its wording — namely, that the King desired the advice of the person to whom it was addressed — can only be believed by those who are wholly ignorant ot English history.C') It has already been observed that the Lords' Reports on the Dignity of a Peer carry great weight with all who engage in presenting and adjudicating on petitions for the determination of alleged abeyances in so-called early baronies by writ. At the time that the Reports were drawn up the modern law as to baronies by writ had been "ascertained," as the legal phrase puts it; but the earliest period to which the law was to apply retrospectively had not been definitely settled, and in one of their reports the Committee express doubts as to the advisability of extending its application to so remote a time (*) History ef English Law, vol. i, p. 231. C") The only known writ containing words of inheritance (excepting three issued by James II in 1689, after his deposition) is that directed to Henry Bromflctc in 1448/9, for which see post, p. 700. Writs of summons and the actual effect of their issue are more fully discussed in Appendix A in the last volume of this work.