View of the State of Europe during the Middle Ages Part 1

View of the State of Europe during the Middle Ages.

by Henry Hallam.

Vol. 3.

CHAPTER VIII.

PART III.

THE ENGLISH CONSt.i.tUTION

Reign of Edward I.--Confirmatio Chartarum--Const.i.tution of Parliament --the Prelates--the Temporal Peers--Tenure by Barony--its Changes-- Difficulty of the Subject--Origin of Representation of the Commons-- Knights of s.h.i.+res--their Existence doubtfully traced through the Reign of Henry III.--Question whether Representation was confined to Tenants in capite discussed--State of English Towns at the Conquest and afterwards--their Progress--Representatives from them summoned to Parliament by Earl of Leicester--Improbability of an earlier Origin-- Cases of St. Albans and Barnstaple considered--Parliaments under Edward I.--Separation of Knights and Burgesses from the Peers--Edward II.--gradual Progress of the Authority of Parliament traced through the Reigns of Edward III. and his Successors down to Henry IV.-- Privilege of Parliament--the early Instances of it noticed--Nature of Borough Representation--Rights of Election--other Particulars relative to Election--House of Lords--Baronies by Tenure--by Writ--Nature of the latter discussed--Creation of Peers by Act of Parliament and by Patent--Summons of Clergy to Parliament--King's Ordinary Council--its Judicial and other Power--Character of the Plantagenet Government-- Prerogative--its Excesses--erroneous Views corrected--Testimony of Sir John Fortescue to the Freedom of the Const.i.tution--Causes of the superior Liberty of England considered--State of Society in England-- Want of Police--Villenage--its gradual Extinction--latter Years of Henry VI.--Regencies--Instances of them enumerated--Pretensions of the House of York, and War of the Roses--Edward IV.--Conclusion.

[Sidenote: Accession of Edward I.]

Though the undisputed accession of a prince like Edward I. to the throne of his father does not seem so convenient a resting-place in history as one of those revolutions which interrupt the natural chain of events, yet the changes wrought during his reign make it properly an epoch in the progress of these inquiries. And, indeed, as ours is emphatically styled a government by king, lords, and commons, we cannot, perhaps, in strictness carry it further back than the admission of the latter into parliament; so that if the constant representation of the commons is to be referred to the age of Edward I., it will be nearer the truth to date the English const.i.tution from that than from any earlier era.

[Sidenote: Confirmation of the Charters.]

The various statutes affecting the law of property and administration of justice which have caused Edward I. to be named, rather hyperbolically, the English Justinian, bear no immediate relation to our present inquiries. In a const.i.tutional point of view the princ.i.p.al object is that statute ent.i.tled the Confirmation of the Charters, which was very reluctantly conceded by the king in the 25th year of his reign. I do not know that England has ever produced any patriots to whose memory she owes more grat.i.tude than Humphrey Bohun, earl of Hereford and Ess.e.x, and Roger BiG.o.d, earl of Norfolk. In the Great Charter the base spirit and deserted condition of John take off something from the glory of the triumph, though they enhance the moderation of those who pressed no further upon an abject tyrant. But to withstand the measures of Edward, a prince unequalled by any who had reigned in England since the Conqueror, for prudence, valour, and success, required a far more intrepid patriotism. Their provocations, if less outrageous than those received from John, were such as evidently manifested a disposition in Edward to reign without any control; a constant refusal to confirm the charters, which in that age were hardly deemed to bind the king without his actual consent; heavy impositions, especially one on the export of wool, and other unwarrantable demands. He had acted with such unmeasured violence towards the clergy, on account of their refusal of further subsidies, that, although the ill-judged policy of that cla.s.s kept their interests too distinct from those of the people, it was natural for all to be alarmed at the precedent of despotism.[1] These encroachments made resistance justifiable, and the circ.u.mstances of Edward made it prudent. His ambition, luckily for the people, had involved him in foreign warfare, from which he could not recede without disappointment and dishonour. Thus was wrested from him that famous statute, inadequately denominated the Confirmation of the Charters, because it added another pillar to our const.i.tution, not less important than the Great Charter itself.[2]

It was enacted by the 25 Edw. I. that the charter of liberties, and that of the forest, besides being explicitly confirmed,[3] should be sent to all sheriffs, justices in eyre, and other magistrates throughout the realm, in order to their publication before the people; that copies of them should be kept in cathedral churches, and publicly read twice in the year, accompanied by a solemn sentence of excommunication against all who should infringe them; that any judgment given contrary to these charters should be invalid, and holden for nought. This authentic promulgation, those awful sanctions of the Great Charter, would alone render the statute of which we are speaking ill.u.s.trious. But it went a great deal further. Hitherto the king's prerogative of levying money by name of tallage or prise from his towns and tenants in demesne had pa.s.sed unquestioned. Some impositions, that especially on the export of wool, affected all his subjects. It was now the moment to enfranchise the people, and give that security to private property which Magna Charta had given to personal liberty. By the 5th and 6th sections of this statute "the aids, tasks, and prises," before taken are renounced as precedents; and the king "grants for him and his heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy church, as also to earls, barons, and to all commonalty of the land, that for no business from henceforth we shall take such manner of aids, tasks, nor prises, but by the common a.s.sent of the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed."

The toll upon wool, so far as levied by the king's mere prerogative, is expressly released by the seventh section.[4]

[Sidenote: Const.i.tution of parliament.]

We come now to a part of our subject exceedingly important, but more intricate and controverted than any other, the const.i.tution of parliament. I have taken no notice of this in the last section, in order to present uninterruptedly to the reader the gradual progress of our legislature down to its complete establishment under the Edwards. No excuse need be made for the dry and critical disquisition of the following pages; but among such obscure inquiries I cannot feel myself as secure from error as I certainly do from partiality.

[Sidenote: The spiritual peers.]

One const.i.tuent branch of the great councils held by William the Conqueror and all his successors was composed of the bishops and the heads of religious houses holding their temporalities immediately of the crown. It has been frequently maintained that these spiritual lords sat in parliament only by virtue of their baronial tenure. And certainly they did all hold baronies, which, according to the a.n.a.logy of lay peerages, were sufficient to give them such a share in the legislature.

Nevertheless, I think that this is rather too contracted a view of the rights of the English hierarchy, and, indeed, by implication, of the peerage. For a great council of advice and a.s.sent in matters of legislation or national importance was essential to all the northern governments. And all of them, except, perhaps, the Lombards, invited the superior ecclesiastics to their councils; not upon any feudal notions, which at that time had hardly begun to prevail, but chiefly as representatives of the church and of religion itself; next, as more learned and enlightened counsellors than the lay n.o.bility; and in some degree, no doubt, as rich proprietors of land. It will be remembered also that ecclesiastical and temporal affairs were originally decided in the same a.s.semblies, both upon the continent and in England. The Norman Conquest, which destroyed the Anglo-Saxon n.o.bility, and subst.i.tuted a new race in their stead, could not affect the immortality of church possessions. The bishops of William's age were ent.i.tled to sit in his councils by the general custom of Europe, and by the common law of England, which the Conquest did not overturn.[5] Some smaller arguments might be urged against the supposition that their legislative rights are merely baronial; such as that the guardian of the spiritualities was commonly summoned to parliament during the vacancy of a bishopric, and that the five sees created by Henry VIII. have no baronies annexed to them;[6] but the former reasoning appears less technical and confined.[7]

Next to these spiritual lords are the earls and barons, or lay peerage of England. The former dignity was, perhaps, not so merely official as in the Saxon times, although the earl was ent.i.tled to the third penny of all emoluments arising from the administration of justice in the county-courts, and might, perhaps, command the militia of his county, when it was called forth.[8] Every earl was also a baron, and held an honour or barony of the crown, for which he paid a higher relief than an ordinary baron, probably on account of the profits of his earldom. I will not pretend to say whether t.i.tular earldoms, absolutely distinct from the lieutenancy of a county, were as ancient as the Conquest, which Madox seems to think, or were considered as irregular so late as Henry II., according to Lord Lyttelton. In Dugdale's Baronage I find none of this description in the first Norman reigns; for even that of Clare was connected with the local earldom of Hertford.

[Sidenote: Question as to the nature of baronies.]

It is universally agreed that the only baronies known for two centuries after the Conquest were incident to the tenure of land held immediately from the crown. There are, however, material difficulties in the way of rightly understanding their nature which ought not to be pa.s.sed over, because the consideration of baronial tenures will best develop the formation of our parliamentary system. Two of our most eminent legal antiquaries, Selden and Madox, have entertained different opinions as to the characteristics and attributes of this tenure.

[Sidenote: Theory of Selden;]

According to the first, every tenant in chief by knight-service was an honorary or parliamentary baron by reason of his tenure. All these were summoned to the king's councils, and were peers of his court. Their baronies, or honours, as they were frequently called, consisted of a number of knight's fees; that is, of estates, from each of which the feudal service of a knight was due; not fixed to thirteen fees and a third, as has been erroneously conceived, but varying according to the extent of the barony and the reservation of service at the time of its creation. Were they more or fewer, however, their owner was equally a baron, and summoned to serve the king in parliament with his advice and judgment, as appears by many records and pa.s.sages in history.

But about the latter end of John's reign, some only of the most eminent tenants in chief were summoned by particular writs; the rest by one general summons through the sheriffs of their several counties. This is declared in the Great Charter of that prince, wherein he promises that, whenever an aid or scutage shall be required, faciemus summoneri archiepiscopos, episcopos, abbates, comites et majores barones regni sigillatim per literas nostras. Et praeterea faciemus summoneri in generali per vicecomites et ballivos nostros omnes alios qui in capite tenent de n.o.bis. Thus the barons are distinguished from other tenants in chief, as if the former name were only applicable to a particular number of the king's immediate va.s.sals. But it is reasonable to think that, before this charter was made, it had been settled by the law of some other parliament, how these greater barons should be distinguished from the lesser tenants in chief; else what certainty could there be in an expression so general and indefinite? And this is likely to have proceeded from the pride with which the ancient and wealthy barons of the realm would regard those newly created by grants of escheated honours, or those decayed in estate, who yet were by their tenures on an equality with themselves. They procured therefore two innovations in their condition; first that these inferior barons should be summoned generally by the sheriff, instead of receiving their particular writs, which made an honorary distinction; and next, that they should pay relief, not, as for an entire barony, one hundred marks; but at the rate of five pounds for each knight's fee which they held of the crown. This changed their tenure to one by mere knight-service, and their denomination to tenants in chief. It was not difficult, afterwards, for the greater barons to exclude any from coming to parliament as such without particular writs directed to them, for which purpose some law was probably enacted in the reign of Henry III. If indeed we could place reliance on a nameless author whom Camden has quoted, this limitation of the peerage to such as were expressly summoned depended upon a statute made soon after the battle of Evesham. But no one has ever been able to discover Camden's authority, and the change was, probably, of a much earlier date.[9]

[Sidenote: of Madox,]

[Sidenote: and observations on both.]

Such is the theory of Selden, which, if it rested less upon conjectural alterations in the law, would undoubtedly solve some material difficulties that occur in the opposite view of the subject. According to Madox, tenure by knight-service in chief was always distinct from that by barony. It is not easy, however, to point out the characteristic differences of the two; nor has that eminent antiquary, in his large work, the Baronia Anglica, laid down any definition, or attempted to explain the real nature of a barony. The distinction could not consist in the number of knight's fees; for the barony of Hwayton consisted of only three; while John de Baliol held thirty fees by mere knight-service.[10] Nor does it seem to have consisted in the privilege or service of attending parliament, since all tenants in chief were usually summoned. But whatever may have been the line between these modes of tenure, there seems complete proof of their separation long before the reign of John. Tenants in chief are enumerated distinctly from earls and barons in the charter of Henry I. Knights, as well as barons, are named as present in the parliament of Northampton in 1165, in that held at the same town in 1176, and upon other occasions.[11]

Several persons appear in the Liber Niger Scaccarii, a roll of military tenants made in the age of Henry II., who held single knight's fees of the crown. It is, however, highly probable, that, in a lax sense of the word, these knights may sometimes have been termed barons. The author of the Dialogus de Scaccario speaks of those holding greater or lesser baronies, including, as appears by the context, all tenants in chief.[12] The former of these seem to be the majores barones of King John's Charter. And the secundae dignitatis barones, said by a contemporary historian to have been present in the parliament of Northampton, were in all probability no other than the knightly tenants of the crown.[13] For the word baro, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase of court-baron. It was used too for the magistrates or chief men of cities, as it is still for the judges of the exchequer, and the representatives of the Cinque Ports.[14]

The pa.s.sage however before cited from the Great Charter of John affords one spot of firm footing in the course of our progress. Then, at least, it is evident that all tenants in chief were ent.i.tled to their summons; the greater barons by particular writs, the rest through one directed to their sheriff. The epoch when all, who, though tenants in chief, had not been actually summoned, were deprived of their right of attendance in parliament, is again involved in uncertainty and conjecture. The unknown writer quoted by Camden seems not sufficient authority to establish his a.s.sertion, that they were excluded by a statute made after the battle of Evesham. The principle was most likely acknowledged at an earlier time.

Simon de Montfort summoned only twenty-three temporal peers to his famous parliament. In the year 1255 the barons complained that many of their number had not received their writs according to the tenor of the charter, and refused to grant an aid to the king till they were issued.[15] But it would have been easy to disappoint this mode of packing a parliament, if an unsummoned baron could have sat by mere right of his tenure. The opinion of Selden, that a law of exclusion was enacted towards the beginning of Henry's reign is not liable to so much objection. But perhaps it is unnecessary to frame an hypothesis of this nature. Writs of summons seem to have been older than the time of John;[16] and when this had become the customary and regular preliminary of a baron's coming to parliament, it was a natural transition to look upon it as an indispensable condition; in times when the prerogative was high, the law unsettled, and the service in parliament deemed by many still more burthensome than honourable. Some omissions in summoning the king's tenants to former parliaments may perhaps have produced the above-mentioned provision of the Great Charter, which had a relation to the imposition of taxes wherein it was deemed essential to obtain a more universal consent than was required in councils held for state, or even for advice.[17]

[Sidenote: Whether mere tenants in chief attended parliament under Henry III.]

It is not easy to determine how long the inferior tenants in chief continued to sit personally in parliament. In the charters of Henry III., the clause which we have been considering is omitted: and I think there is no express proof remaining that the sheriff was ever directed to summon the king's military tenants within his county, in the manner which the charter of John required. It appears however that they were in fact members of parliament on many occasions during Henry's reign, which shows that they were summoned either by particular writs or through the sheriff; and the latter is the more plausible conjecture. There is indeed great obscurity as to the const.i.tution of parliament in this reign; and the pa.s.sages which I am about to produce may lead some to conceive that the freeholders were _represented_ even from its beginning. I rather incline to a different opinion.

In the Magna Charta of 1 Henry III. it is said: Pro hac donatione et concessione ... archiepiscopi, episcopi, comites, barones, milites, et libere tenentes, et omnes de regno nostro, dederunt n.o.bis quintam decimam partem omnium bonorum suorum mobilium.[18] So in a record of 19 Henry III.: Comites, et barones, et omnes alii de toto regno nostro Angliae, spontanea voluntate sua, concesserunt n.o.bis efficax auxilium.[19] The largeness of these words is, however, controlled by a subsequent pa.s.sage, which declares the tax to be imposed ad mandatum omnium comitum et baronum et omnium aliorum _qui de n.o.bis tenent in capite_. And it seems to have been a general practice to a.s.sume the common consent of all ranks to that which had actually been agreed by the higher. In a similar writ, 21 Henry III., the rants of men are enumerated specifically; archiepiscopi, episcopi, abbates, priores, et clerici terras habentes quae ad ecclesias suas non pertinent, comites, barones, milites, et liberi homines, pro se et suis villanis, n.o.bis concesserunt in auxilium tricesimam partem omnium mobilium.[20] In the close roll of the same year, we have a writ directed to the archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders (liberi homines) of Ireland, in which an aid is desired of them, and it is urged that one had been granted by his fideles Angliae.[21]

But this attendance in parliament of inferior tenants in chief, some of them too poor to have received knighthood, grew insupportably vexatious to themselves, and was not well liked by the king. He knew them to be dependent upon the barons, and dreaded the confluence of a mult.i.tude, who a.s.sumed the privilege of coming in arms to the appointed place. So inconvenient and mischievous a scheme could not long subsist among an advancing people, and fortunately the true remedy was discovered with little difficulty.

[Sidenote: Origin and progress of parliamentary representation.]

The principle of representation, in its widest sense, can hardly be unknown to any government not purely democratical. In almost every country the sense of the whole is understood to be spoken by a part, and the decisions of a part are binding upon the whole. Among our ancestors the lord stood in the place of his va.s.sals, and, still more unquestionably, the abbot in that of his monks. The system indeed of ecclesiastical councils, considered as organs of the church, rested upon the principle of a virtual or an express representation, and had a tendency to render its application to national a.s.semblies more familiar.

The first instance of actual representation which occurs in our history is only four years after the Conquest; when William, if we may rely on Hoveden, caused twelve persons skilled in the customs of England to be chosen from each county, who were sworn to inform him rightly of their laws; and these, so ascertained, were ratified by the consent of the great council. This, Sir Matthew Hale a.s.serts to be "as sufficient and effectual a parliament as ever was held in England."[22] But there is no appearance that these twelve deputies of each county were invested with any higher authority than that of declaring their ancient usages. No stress can be laid at least on this insulated and anomalous a.s.sembly, the existence of which is only learned from an historian of a century later.[23]

We find nothing that can arrest our attention, in searching out the origin of county representation, till we come to a writ in the fifteenth year of John, directed to all the sheriffs in the following terms: Rex Vicecomiti N., salutem. Praecipimus tibi quod omnes milites ballivae tuae qui summoniti fuerunt esse apud Oxoniam ad Nos a die Omnium Sanctorum in quindecim dies venire facias c.u.m armis suis: corpora vero baronum sine armis singulariter, et _quatuor discretos milites_ de comitatu tuo, illuc venire facias ad eundem terminum, ad loquendum n.o.bisc.u.m de negotiis regni nostri. For the explanation of this obscure writ I must refer to what Prynne has said;[24] but it remains problematical whether these four knights (the only clause which concerns our purpose) were to be elected by the county or returned in the nature of a jury, at the discretion of the sheriff. Since there is no sufficient proof whereon to decide, we can only say with hesitation, that there _may_ have been an instance of county representation in the fifteenth year of John.

We may next advert to a practice, of which there is very clear proof in the reign of Henry III. Subsidies granted in parliament were a.s.sessed, not as in former times by the justices upon their circuits, but by knights freely chosen in the county court. This appears by two writs, one of the fourth and one of the ninth year of Henry III.[25] At a subsequent period, by a provision of the Oxford parliament in 1258, every county elected four knights to inquire into grievances, and deliver their inquisition into parliament.[26]

The next writ now extant, that wears the appearance of parliamentary representation, is in the thirty-eighth of Henry III. This, after reciting that the earls, barons, and other great men (caeteri magnates) were to meet at London three weeks after Easter, with horses and arms, for the purpose of sailing into Gascony, requires the sheriff to compel all within his jurisdiction, who hold twenty pounds a year of the king in chief, or of those in ward of the king, to appear at the same time and place. And that besides those mentioned he shall cause to come before the king's council at Westminster, on the fifteenth day after Easter, two good and discreet knights of his county, whom the men of the county shall have chosen for this purpose, in the stead of all and each of them, to consider, along with the knights of other counties, what aid they will grant the king in such an emergency.[27] In the principle of election, and in the object of the a.s.sembly, which was to grant money, this certainly resembles a summons to parliament. There are indeed anomalies sufficiently remarkable upon the face of the writ which distinguish this meeting from a regular parliament. But when the scheme of obtaining money from the commons of s.h.i.+res through the consent of their representatives had once been entertained, it was easily applicable to more formal councils of the nation.[28]

A few years later there appears another writ a.n.a.logous to a summons.

During the contest between Henry III. and the confederate barons in 1261, they presumed to call a sort of parliament, summoning three knights out of every county, sec.u.m tractaturos super communibus negotiis regni. This we learn only by an opposite writ issued by the king, directing the sheriff to enjoin these knights who had been convened by the earls of Leicester and Gloucester to their meeting at St. Alban's, that they should repair instead to the king at Windsor, and to no other place, n.o.bisc.u.m super praemissis colloquium habituros.[29] It is not absolutely certain that these knights were elected by their respective counties. But even if they were so, this a.s.sembly has much less the appearance of a parliament, than that in the thirty-eighth of Henry III.

At length, in the year 1265, the forty-ninth of Henry III., while he was a captive in the hands of Simon de Montfort, writs were issued in his name to all the sheriffs, directing them to return two knights for the body of their county, with two citizens or burgesses for every city and borough contained within it. This therefore is the epoch at which the representation of the commons becomes indisputably manifest; even should we reject altogether the more equivocal instances of it which have just been enumerated.

[Sidenote: Whether the knights were elected by freeholders in general.]

If indeed the knights were still elected by none but the king's military tenants, if the mode of representation was merely adopted to spare them the inconvenience of personal attendance, the immediate innovation in our polity was not very extensive. This is an interesting, but very obscure, topic of inquiry. Spelman and Brady, with other writers, have restrained the original right of election to tenants in chief, among whom, in process of time, those holding under mesne lords, not being readily distinguishable in the hurry of an election, contrived to slide in, till at length their encroachments were rendered legitimate by the statute 7 Hen. IV. c. 15, which put all suitors to the county court on an equal footing as to the elective franchise. The argument on this side might be plausibly urged with the following reasoning.

The spirit of a feudal monarchy, which compelled every lord to act by the advice and a.s.sent of his immediate va.s.sals, established no relation between him and those who held nothing at his hands. They were included, so far as he was concerned, in their superiors; and the feudal incidents were due to him from the whole of his va.s.sal's fief, whatever tenants might possess it by subinfeudation. In England the tenants in chief alone were called to the great councils before representation was thought of, as is evident both by the charter of John, and by the language of many records; nor were any others concerned in levying aids or escuages, which were only due by virtue of their tenure. These military tenants were become, in the reign of Henry III., far more numerous than they had been under the Conqueror. If we include those who held of the king ut de honore, that is, the tenants of baronies escheated or in ward, who may probably have enjoyed the same privileges, being subject in general to the same burdens, their number will be greatly augmented, and form no inconsiderable portion of the freeholders of the kingdom. After the statute commonly called Quia emptores in the eighteenth of Edward I. they were likely to increase much more, as every licensed alienation of any portion of a fief by a tenant in chief would create a new freehold immediately depending upon the crown. Many of these tenants in capite held very small fractions of knight's fees, and were consequently not called upon to receive knighthood. They were plain freeholders holding in chief, and the liberi homines or libere tenentes of those writs which have been already quoted. The common form indeed of writs to the sheriff directs the knights to be chosen de communitate comitatus. But the word communitas, as in boroughs, denotes only the superior part: it is not unusual to find mention in records of communitas populi or omnes de regno, where none are intended but the barons, or at most the tenants in chief. If we look attentively at the earliest instance of summoning knights of s.h.i.+res to parliament, that in 38 Henry III., which has been noticed above, it will appear that they could only have been chosen by military tenants in chief. The object of calling this parliament, if parliament it were, was to obtain an aid from the military tenants, who, holding less than a knight's fee, were not required to do personal service. None then, surely, but the tenants in chief could be electors upon this occasion, which merely respected their feudal duties. Again, to come much lower down, we find a series of pet.i.tions in the reigns of Edward III. and Richard II., which seem to lead us to a conclusion that only tenants in chief were represented by the knights of s.h.i.+res. The writ for wages directed the sheriff to levy them on the commons of the county, both within franchises and without (tam intra libertates quam extra). But the tenants of lords holding by barony endeavoured to exempt themselves from this burthen, in which they seem to have been countenanced by the king.

This led to frequent remonstrances from the commons, who finally procured a statute, that all lands which had been accustomed to contribute towards the wages of members should continue to do so, even though they should be purchased by a lord.[30] But, if these mesne tenants had possessed equal rights of voting with tenants in chief, it is impossible to conceive that they would have thought of claiming so unreasonable an exemption. Yet, as it would appear harsh to make any distinction between the rights of those who sustained an equal burthen, we may perceive how the freeholders holding of mesne lords might on that account obtain after the statute a partic.i.p.ation in the privilege of tenants in chief. And without supposing any partiality or connivance, it is easy to comprehend that, while the nature of tenures and services was so obscure as to give rise to continual disputes, of which the ancient records of the King's Bench are full, no sheriff could be very accurate in rejecting the votes of common freeholders repairing to the county court, and undistinguishable, as must be allowed, from tenants in capite upon other occasions, such as serving on juries, or voting on the election of coroners. To all this it yields some corroboration, that a neighbouring though long hostile kingdom, who borrowed much of her law from our own, has never admitted any freeholders, except tenants in chief of the crown, to a suffrage in county elections. These attended the parliament of Scotland in person till 1428, when a law of James I.

permitted them to send representatives.[31]

Such is, I think, a fair statement of the arguments that might be alleged by those who would restrain the right of election to tenants of the crown. It may be urged on the other side that the genius of the feudal system was never completely displayed in England; much less can we make use of that policy to explain inst.i.tutions that prevailed under Edward I. Instead of aids and scutages levied upon the king's military tenants, the crown found ample resources in subsidies upon moveables, from which no cla.s.s of men was exempted. But the statute that abolished all unparliamentary taxation led, at least in theoretical principle, to extend the elective franchise to as large a ma.s.s of the people as could conveniently exercise it. It was even in the mouth of our kings that what concerned all should be approved by all. Nor is the language of all extant writs less adverse to the supposition that the right of suffrage in county elections was limited to tenants in chief. It seems extraordinary that such a restriction, if it existed, should never be deducible from these instruments; that their terms should invariably be large enough to comprise all freeholders. Yet no more is ever required of the sheriff than to return two knights chosen by the body of the county. For they are not only said to be returned pro communitate, but "per communitatem," and "de a.s.sensu totius communitatis." Nor is it satisfactory to allege, without any proof, that this word should be restricted to the tenants in chief, contrary to what must appear to be its obvious meaning.[32] Certainly, if these tenants of the crown had found inferior freeholds usurping a right of suffrage, we might expect to find it the subject of some legislative provision, or at least of some pet.i.tion and complaint. And, on the other hand, it would have been considered as unreasonable to levy the wages due to knights of the s.h.i.+re for their service in parliament on those who had no share in their election. But it appears by writs at the very beginning of Edward II.'s reign, that wages were levied "de communitate comitatus."[33] It will scarcely be contended that no one was to contribute under this writ but tenants in chief; and yet the word communitas can hardly be applied to different persons, when it occurs in the same instrument and upon the same matter. The series of pet.i.tions above mentioned relative to the payment of wages rather tends to support a conclusion that all mesne tenants had the right of suffrage, if they thought fit to exercise it, since it was earnestly contended that they were liable to contribute towards that expense. Nor does there appear any reason to doubt that all freeholders, except those within particular franchises, were suitors to the county court--an inst.i.tution of no feudal nature, and in which elections were to be made by those present. As to the meeting to which knights of s.h.i.+res were summoned in 38 Henry III., it ought not to be reckoned a parliament, but rather one of those anomalous conventions which sometimes occurred in the unfixed state of government. It is at least the earliest known instance of representation, and leads us to no conclusion in respect of later times, when the commons had become an essential part of the legislature, and their consent was required to all public burthens.

This question, upon the whole, is certainly not free from considerable difficulty. The legal antiquaries are divided. Prynne does not seem to have doubted but that the knights were "elected in the full county, by and for the whole county," without respect to the tenure of the freeholders.[34] But Brady and Carte are of a different opinion.[35] Yet their disposition to narrow the basis of the const.i.tution is so strong, that it creates a sort of prejudice against their authority. And if I might offer an opinion on so obscure a subject, I should be much inclined to believe that, even from the reign of Henry III., the election of knights by all freeholders in the county-court, without regard to tenure, was little, if at all, different from what it is at present.[36]

[Sidenote: Progress of towns.]

The progress of towns in several continental countries, from a condition bordering upon servitude to wealth and liberty, has more than once attracted our attention in other parts of the present work. Their growth in England, both from general causes and imitative policy, was very similar and nearly coincident. Under the Anglo-Saxon line of sovereigns we scarcely can discover in our scanty records the condition of their inhabitants, except retrospectively from the great survey of Domesday Book, which displays the state of England under Edward the Confessor.