Lords Spiritual and those of Lords CHAP. V. highest secular offices in the land-to that of Chief Justiciary, to that of Chancellor, and to that of Earl. The Bishops certainly had it in their power to secure absolute equality with the Earls in all points, and might have secured Temporal. the right of trial by Peers at a later period had they not thought fit to struggle for immunity from all secular jurisdiction. But the clergy had already entered on a conflict with the lay authority, in an attempt to secure exceptional privileges. It will, however, be most convenient to trace the course and issue of this policy in a later chapter, when the efforts of Becket and Stratford on behalf of their order are considered. The first known earldom, with limitation to and his heirs, made in As the growth of hereditary earldoms cannot be distinctly grant of an traced before the reign of Stephen, it may be suspected that the exigencies of the war between him and the Empress Maud, daughter of Henry I, gave a stimulus to royal the grantee generosity. The first known documents which prove quite clearly that an earldom was conferred upon the grantee the reign of and his heirs are charters of King Stephen and the Empress Maud. Geoffrey de Mandeville had creations or grants from both to the effect that he and his heirs should be Earls of Essex'. Maud also created Milo (or Miles) de Gloucester Earl of Hereford, giving him the castle of Hereford, and the 'third penny' of the pleas of the County Court in fee and inheritance". Stephen. The From this time onwards the creation of Earls to hold to the grantees and their heirs is common. There is. however, apparent a very remarkable feature which still to some extent qualifies the hereditary succession. In the reign of Henry II Hugh Bigod was created Earl of Norfolk, receiving the third penny from Norwich and Norfolk. He heir should and his heirs were to hold of the King and his heirs. His hereditary succession to an earldom at first qualified by the necessity that the The two charters have been printed by Mr. Round (the one from Cott. Chart., vii. 4, the other from Cott. Chart., xvi. 27, collated with the Dugdale and Ashmole MSS.) in Geoffrey de Mandeville, pp. 51 and 88. 2 Rymer's Foedera (1816), i. 14, from the Cotton Collections. 3 Cartae Antiquae, S. n. 13, printed in Reports on the Dignity of a Peer, vol. v. p. 2. son Roger Bigod was nevertheless created Earl of Norfolk CHAP. V. by Richard I, just as if he had no right of inheritance'. It be girt is, indeed, possible that Hugh may in this case have been with a sword by considered to have forfeited his earldom for traitorous the King: practices, and that Roger may have been restored by instances. a new grant. But there are other examples which show that the son did not at any rate become a full Earl upon the death of his father. Geoffrey Fitz-Piers or Fitz-Peter, Earl of Essex, died, it is said, in the year 1213. He had been girt with the sword of the earldom, at the Coronation of King John 2, and he appears as a witness to several charters by the designation of Earl of Essex. He had married a grand-daughter of the heiress of William de Mandeville, Earl of Essex, but it is not clear that he was supposed to have a title to an hereditary earldom. His eldest son, Geoffrey, was eventually recognized as Earl of Essex, but not immediately after his death. The fact is curiously shown by the record of a cause of Michaelmas term in the fifteenth year of John's reign (A. D. 1214). Geoffrey de Say demanded the manor of Pleshey, together with the honour which had belonged to William de Mandeville, Earl of Essex. Geoffrey de Mandeville (the son of Geoffrey Fitz-Piers) pleaded that much was wanting to him of the honour which had belonged to Earl William. that William was Earl of Essex and girt with the sword of an Earl, and in receipt of the third penny, whereas Geoffrey de Mandeville was neither an Earl, nor girt with the sword, nor in receipt of the third penny 3. At the beginning of the reign of Henry III also it seems that the son and heir of a deceased Earl did not immediately become Earl, and that he was not even in full possession of his earldom after having had livery of his lands. Thomas, son and heir of Henry Earl of Warwick, appears to have had livery of his lands in the thirteenth year of the 1 The second grant is printed in the Reports on the Dignity of a Peer, vol. v. p. 4, from Cart. Antiq., 1 Ric. I, S. n. 14. 2 Hoveden (Rolls Series), vol. iv. p. 90. • Printed in the Plac. Abbr., p. 93. CHAP. V. reign, but it was not until the seventeenth year (four years afterwards) that the following precept was sent to the sheriff of the county of Warwick: The King hath girded Thomas de Warwick with the girdle of the Earldom of Warwick, and the sheriff of Warwick is commanded that he cause the same Earl to have of the County aforesaid that which he ought to have in the name of Earl of Warwick and whereof his predecessors Earls of Warwick, were seised as belonging to them in the name of the Earldom of Warwick',' Another principle It might have been supposed a priori that when it was necessary for an Earl to be girt with the sword by the sovereign, the girding of the ancestor could not enure (or operate) to the benefit of the heir. When the heir of any tenant in capite had to sue out livery of the land held by his ancestor, it could hardly be possible that the heir of an Earl could gain possession of his Earldom without the ceremony of girding with the sword. The instances above cited are probably sufficient to prove the point, and the point when proved goes far to qualify the principle of absolutely hereditary succession. The succession was hereditary, but subject to the approval of the sovereign as expressed by the ceremony of investiture with the sword and belt. There was, however, another principle coming into operadistinguish- tion in the reign of Henry III, and one closely associated able in the with the doctrine of barony by tenure. Every Earl, as reign of Henry III: forming part of the baronage, was a baron also. A man who succeeded to an estate of inheritance in a barony appears to have been subject to the burdens and to have had a right to the privileges of his predecessor. The theory that an Earl had a purely official or administrative rank was now on the wane, though not yet extinct. The theory that the rank followed an estate of inheritance in the lands seems now to have been entertained, though not yet fully estab earldoms associated with an estate of inheritance in lands: the earldom of Lincoln. 1 Cited in Dugdale's Antiquities of Warwickshire, p. 270, from Anon. Evesh, MS. (in the Bodleian Library), fo. 50 a. lished. Thus Ranulf Earl of Chester and Lincoln, executed CHAP. V. a deed conveying to his sister, Hawise de Quency, the county (comitatum) of Lincoln (so far as it belonged to him), to hold to her and her heirs, of the King and his heirs, with all its appurtenances and with all the franchises thereto belonging, in order that she might be Countess thereof (inde Comitissa)1. The 'county, so far as it belonged to' Ranulf, can in this instrument hardly mean anything but those possessions in the county which had been held by the Earls of Lincoln, The word comitatus has sometimes been otherwise translated-sometimes as the earldom in the sense of the dignity, and sometimes as the third penny attaching to the earldom3. It is, however, impossible that the word could have been used in either of those two senses. Ranulf wished his sister to be Countess of Lincoln, not Countess of the earldom, which would be a phrase without meaning. He wished her to have not barely the third of the proceeds of the County Court, but an estate of inheritance also in the lands with which the earldom of Lincoln was associated; and although comitatus is a word used to express the County Court as well as the county, it would not be used to express a third part of the proceeds alone. Hawise de Quency, it appears, wished her son-in-law, John de Lacy, to be recognized as Earl of Lincoln in her lifetime, and King Henry III, at her instance, granted to him the third penny of the County Court of Lincoln, as previously received by Ranulf Earl of Chester and Lincoln. It is mentioned in the grant that Ranulf had in his lifetime given this third penny to his sister. The royal grant, however, differs from the terms of the deed made by Ranulf. According to the latter the comitatus or county was conveyed to Hawise in fee simple. Henry's grant settled the 1 The deed is printed in Selden's Titles of Honour, p. 653. E.g. in Cruise on Dignities (2nd edition), pp. 109-111. E.g. in the Third Report on the Dignity of a Peer, vol. ii. p. 238. CHAP. V. third penny in special tail to John de Lacy and his heirs by Margaret his wife, daughter of Hawise1. Partition between coheirs : effect of or earldom alone falling to coheirs : the Earldom of Chester. It is sufficiently clear from these transactions that the word county or comitatus in a conveyance was held not to be, but to include the third penny received by the Earl from the proceeds of the County Court. It seems clear also that the third penny could not be treated as a charge on the issues of the County Court which might be conveyed away at his pleasure by a person having the fee simple. A licence to alienate was of course necessary, and the Crown could therefore interfere to prevent any alienation which had not the royal approval, and would certainly regard with a very jealous eye any alienation which affected a part of the royal revenue. If an Earl held a county, together with lands in other counties, and died without male heir, partition could be made between his female coheirs, and one of them one county could receive the 'county' as her share, though many cases show that, for some centuries after the Conquest, the death of an Earl who was Earl of one county only, and left only female coheirs, was a cause of perplexity. In the twentythird year of the reign of Henry III it was decided that 'if the Earldom of Chester descend to coparceners, it shall be divided between them just as other lands, and the eldest shall not have that seignory (or lordship) entirely to herself?.' The confusion, in this passage, between the earldom and the lands of the earldom is a sufficient indication that there was some connexion between the two. There is no evidence that the first Earls of Chester after the Conquest, though invested with the sword, held a dignity apart from the lands. They must, indeed, having Palatine rights, have been in the same position with regard to the lands of the county, as the King with regard to the lands of England generally, and have been chief lords over them all. 1 Rot. Lit. Pat., 17 Hen. III, m. 9, No. 35 (printed in Reports on the Dignity of a Peer, vol. v. p. 8). 2 Fitzherbert's Abridgement, Particion, 18 (23 Hen. III), and see Co. Litt. 165. |