These writs, which were at first very general and indefinite, expressing neither the sum to be paid, nor the names of those who were to receive payment, continued to be issued at the end of every parliament.

In 35 Edw. I the writs for the wages of citizens and burgesses are addressed to the mayors, bailiffs, and other officers of the respective cities and boroughs, and not, as before, to the sheriffs. The writs in 16 Edw. II first reduced the wages to a definite amount, namely, to four shillings a day for every knight of the shire, and two shillings for every citizen and burgess, in coming, staying, and returning.

With few exceptions, the wages for knights continued to be four shillings, and for citizens and burgesses two shillings, for some centuries, even to the reign of Charles the Second, notwithstanding the immense difference in the value of money. Prynne is of opinion, that in his day (1660) forty shillings were scarcely equivalent to four shillings when wages were first determined; and at this day five pounds would be scarcely an equivalent.

In a parliament, held at Leicester 30th April, 2 Hen. V, A.D. 1414, is presented

"A petition of the Gentlemen and others who hold their lands by Knights' service, within the gyldable, in the county of Kent, which states, that the wages of the knights for that county were not leviable of others within the county, according to the custom there, but only of those who held their lands by knights' service, as well within as without franchises; and lately the sheriffs levied the wages only of those who held by such service within the gyldable, and not within the franchises, contrary to antient custom and usage. They pray that the king will ordain that the wages shall be levied generally of all those who hold by knights' service, as well within as without franchises, except the knights' fees in the hands of the archbishop of Canterbury, and the other lords, spiritual and temporal, who come to the parliaments by authority of the king's writs. It is answered, 'Let the statute thereof be put in due execution." (Parry's Parl. and Councils of England, p. 171.)

The statute here referred to seems to be that of 12 Ric. II, cap. 12, A.D. 1388, intituled "In what cases the Lords and

Spiritual Persons shall be contributory to the Expenses of

the Knights of Parliament."

66

"Item, endroit de la levee des despenses des chivalers venantz as parlementz pur les communes des countees, accordez est assentuz,

qe

la dite levee soit faite come ad este use avant ces hures, ajouste a ycell, qe si ascun seignur, ou autre homme, espirituel ou temporel, eit purchasez ascuns terres ou tenementz, ou autres possessions, qi soleient estre contributoirs as tiels despenses devant le temps du dit purchace, qe mesmes les terres, tenementz, possessions, les tenantz dicelles, soient contributoirs as dites despenses come les ditz terres, tenementz, possessions, les tenantz dicelles, solient faire devant le temps de mesme la purchase."

"Item, in the right of the levying of the expenses of the knights coming to the parliaments for the Commons of the counties, it is accorded and assented, that the said levying be made as it hath been used before this time, joining to the same, that if any lord, or any other man, spiritual or temporal, hath purchased any lands or tenements, or other possessions, that were wont to be contributory to such expenses before the time of the said purchase, that the said lands, tenements, and possessions, and the tenants of the same, be contributory to the same expenses as the said lands, tenements, and possessions, and the tenants of the same, were wont to do before the time of the same purchase."

This Act, as well as the petition, shows that much of the law depended on usage. The county of Kent seems to have been the only one in which the wages of knights were, by usage, paid only by those who held knights' fees, and not by other freeholders. In all the counties the lords, spiritual and temporal, claimed exemption for their lands, which claim was admitted by the statute, except such lands as were purchased, and then only if such had not before paid. The exemption of the lords spiritual and temporal, and of cities and boroughs which sent members, and the usage in the county of Kent, all originated probably in the supposition that the lords represented their own tenants, and that in the first constitution of elected representatives for shires, these appeared instead of the tenants in chief of the crown by knights' service, who were to be generally summoned, according to the charter of

John. The usage must have commenced subsequently to that charter, and on no other principle than that the electors were to pay the elected. Before and in the 2d Hen. V it was established that the knights represented all the people of the shires, and the ground of exemption for the tenants of the lords was at an end. They no longer represented their own tenants. The exemption had become a mere privilege, founded on usage. They had become a separate and distinct branch of the legislature, having the character they now maintain.

There seems to have been no positive law extant, when the questions were first raised, who were to be the electors, and who were chargeable with wages, and that the legislature had no guide except usage, which was, therefore, the "author of that constitution of the legislative assembly, acknowledged to be the established law of the land."

It is, however, perfectly clear, from the language of the petition of the gentlemen of Kent (anno 2 Hen. V), that lands in Kent, of the tenure of Gavelkind, were not contributory to the wages of knights of the shire; but that tenants in capite, or by knights' service (according to the Magna Carta of King John), were alone contributory.

I will conclude this inquiry into the constitution of parliament by giving (from memoirs of my own family) some instances of levying wages for knights of the shire.

"A.D. 1377. 1 Ric. II.-Richard del Sandes and Robert Mowbray Chevaler were returned knights of the shire for Cumberland, and £28 was levied by the sheriff for their expenses in attending 70 days in parliament at Westminster."

This parliament sat only forty-seven days, from 13th October to 28th November, so that twenty-eight days' wages were allowed the knights, veniendo et redeundo to and from Westminster to Cumberland.

“A.D. 1390. 14 Ric. II.-Thomas del Sandes and William de Stapleton served in parliament as knights of the shyre for Cumberland, and had £14. 88. for 36 days' attendance at Westminster."

This parliament assembled on Saturday, 12th November, sat twenty-two days, and was dissolved on Saturday, 3d December; so that fourteen days' wages were allowed the knights, veniendo et redeundo.

'A.D. 1395. 18 Ric. II.-Thomas del Sandes 193 and William de Stapleton were again returned knights for Cumberland, and had the like sum for their expenses, in attending 36 days."

This parliament assembled on 27th January, sat 20 days, and was dissolved on 15th February, so that sixteen days' wages were allowed to the knights, veniendo et redeundo.

TRIAL BY BATTLE.

This section of the Custumal also provides not only against taking the grand assize by twelve knights, but also against Trial by Battle.

Trial by combat, or the Wager of Battle, was introduced into England, among other Norman customs, by William the Conqueror, but was only used in three cases-one military, one criminal, and the third civil. The first in the court martial, or court of chivalry and honour; the second in appeals of felony; and the third upon issue joined in a writ of right, the last and most solemn decision of real property; and it is to this last case that the Custumal applies.

This form of "trial by battel," which was an immediate

193 It may not be altogether without antiquarian interest to remark, that, after a lapse of nearly five centuries, I possess the personal seal of this Thomas del Sandes, my ancestor. The matrix is of silver, of rude workmanship, and was found in Carlisle Castle. The heraldic bearing on the shield is 'a fesse dancetté between three cross-croslets fitchées ;' the legend SIGII. THOME. DEL. SANDES.' The shield is surmounted by a helm. No crest, but a branch of foliage resembling the Plantagenistæ, a sort of heraldic cognizance, perhaps indicating that he was a feudatory of the Plantagenets.

These arms are still borne by his descendants, and the seal affords an imperishable record of the antiquity and authenticity of our family-heraldic bearings, a record long anterior to the creation of the College of Heralds.

As an antiquary, I cannot but regret the change in our family name from SANDES to SANDYS, which was effected by Sir Samuel and Sir Edwin Sandys, the sons of Edwyn Sandes, abp. of York, temp. Qu. Eliz.

appeal to heaven-"Dieu defend le droit," was the only decision of such writ of right from the Conquest, until King Hen. II, by consent of parliament, introduced the Grand Assize, in concurrence therewith, giving the tenant the choice. of either the one or the other.

Although the writ of right itself, and of course this trial thereof, has long since been disused, yet the trial by battle was not formally abolished by law till our own days.

The statute passed 22d June, 1819 (59 Geo. III, c. 46), intituled "An Act to abolish Appeals of Murder, Treason, Felony, or other Offences, and Wager of Battel, or joining Issue and Trial by Battel in Writs of Right," after stating that the trial by battle in any suit is a mode of trial unfit to be used, enacts

"That from and after the passing of this Act, in any writ of right now depending, or which may hereafter be brought, instituted, or commenced, the tenant shall not be received to wage battel, nor shall issue be joined, nor trial be had by battle, in any writ of right, any law, custom, or usage notwithstanding." (Sec. 2.)

The last trial by battle that was waged in the Court of Common Pleas, at Westminster, was in 13th Eliz., A.D. 1571, and was held in Tothill-fields, Westminster. (See Spelman voc. Campus, who was present at the ceremony.)

In this trial by battle on a writ of right, the battel is waged by champions, and not by the parties themselves, because in civil actions, if any party to the suit die, the suit must abate, and be at end for the present; and therefore no judgment could be given for the lands in question if either of the parties were slain.

The circumstance which gave occasion to the statute of 1819 was an appeal of murder brought in Michaelmas Term, 58 Geo. III, by William Ashford against Abraham Thornton, for the murder of his sister, under the following circumstances.

William Ashford, the eldest brother and heir-at-law of Mary Ashford, spinster, deceased, brought a writ of appeal