View of the State of Europe during the Middle Ages Part 19

[453] See in Cro. Car. 120, the indictment against Burdett for compa.s.sing the king's death, and for that purpose conspiring with Stacie and Blake to calculate his nativity and his son's, ad sciendum quando iidem rex et Edwardus ejus filius morientur: Also for the same end dispersing divers rhymes and ballads de murmurationibus, seditionibus et proditoriis excitationibus, factas et fabricatas apud Holbourn, to the intent that the people might withdraw their love from the king and desert him, ac erga ipsum regem insurgerent, et guerram erga ipsum regem levarent, ad finalem destructionem ipsorum regis ac domini principis, &c.

[454] Rot. Parl. vol. vi. p. 193.

[455] The rolls of Henry VII.'s first parliament are full of an absurd confusion in thought and language, which is rendered odious by the purposes to which it is applied. Both Henry VI. and Edward IV. are considered as lawful kings; except in one instance, where Alan Cotterell, pet.i.tioning for the reversal of his attainder, speaks of Edward, "late called Edward IV." (vol. iv. p. 290.) But this is only the language of a private Lancastrian. And Henry VI. pa.s.ses for having been king during his short restoration in 1470, when Edward had been nine years upon the throne. For the earl of Oxford is said to have been attainted "for the true allegiance and service he owed and did to Henry VI. at Barnet field and otherwise." (p. 281.) This might be reasonable enough on the true principle that allegiance is due to a king _de facto_; if indeed we could determine who was the king de facto on the morning of the battle of Barnet. But this principle was not fairly recognised. Richard III. is always called, "in deed and not in right king of England." Nor was this merely founded on his usurpation as against his nephew. For that unfortunate boy is little better treated, and in the act of resumption, 1 H. VII., while Edward IV. is styled "late king," appears only with the denomination of "Edward his son, late called Edward V." (p. 336.) Who then was king after the death of Edward IV.? And was his son really illegitimate, as an usurping uncle pretended? Or did the crime of Richard, though punished in him, enure to the benefit of Henry? These were points which, like the fate of the young princes in the Tower, he chose to wrap in discreet silence. But the first question he seems to have answered in his own favour. For Richard himself, Howard duke of Norfolk, Lord Lovel, and some others, are attainted (p. 276) for "traiterously intending, compa.s.sing, and imagining" the death of Henry; of course before or at the battle of Bosworth; and while his right, unsupported by possession, could have rested only on an hereditary t.i.tle which it was an insult to the nation to prefer. These monstrous proceedings explain the necessity of that conservative statute to which I have already alluded, which pa.s.sed in the eleventh year of his reign, and afforded as much security for men following the plain line of rallying round the standard of their country as mere law can offer. There is some extraordinary reasoning upon this act in Carte's History (vol. ii. p. 844), for the purpose of proving that the adherents of George II. would not be protected by it on the restoration of the true blood.

[456] Difference of Absolute and Limited Monarchy, p. 83.

[457] Rot. Parl. vol. vi. p. 241.

[458] 1 R. III. c. 2.

[459] The long-debated question as to the murder of Edward and his brother seems to me more probably solved on the common supposition that it was really perpetrated by the orders of Richard, than on that of Walpole, Carte, Henry, and Laing, who maintain that the duke of York, at least, was in some way released from the Tower, and reappeared as Perkin Warbeck. But a very strong conviction either way is not readily attainable.

NOTES TO CHAPTER VIII.

(PART III.)

NOTE I. Page 5.

It is rather a curious speculative question, and such only, we may presume, it will long continue, whether bishops are ent.i.tled, on charges of treason or felony, to a trial by the peers. If this question be considered either theoretically or according to ancient authority, I think the affirmative proposition is beyond dispute. Bishops were at all times members of the great national council, and fully equal to lay lords in temporal power as well as dignity. Since the Conquest they have held their temporalities of the crown by a baronial tenure, which, if there be any consistency in law, must unequivocally distinguish them from commoners--since any one holding by barony might be challenged on a jury, as not being the peer of the party whom he was to try. It is true that they take no share in the judicial power of the house of lords in cases of treason or felony; but this is merely in conformity to those ecclesiastical canons which prohibited the clergy from partaking in capital judgment, and they have always withdrawn from the house on such occasions under a protestation of their right to remain. Had it not been for this particularity, arising wholly out of their own discipline, the question of their peerage could never have come into dispute. As for the common argument that they are not tried as peers because they have no inheritable n.o.bility, I consider it as very frivolous, since it takes for granted the precise matter in controversy, that an inheritable n.o.bility is necessary to the definition of peerage, or to its incidental privileges.

If we come to const.i.tutional precedents, by which, when sufficiently numerous and unexceptionable, all questions of this kind are ultimately to be determined, the weight of ancient authority seems to be in favour of the prelates. In the fifteenth year of Edward III. (1340), the king brought several charges against archbishop Stratford. He came to parliament with a declared intention of defending himself before his peers. The king insisted upon his answering in the court of exchequer.

Stratford however persevered, and the house of lords, by the king's consent, appointed twelve of their number, bishops, earls, and barons, to report whether peers ought to answer criminal charges in parliament, and not elsewhere. This committee reported to the king in full parliament that the peers of the land ought not to be arraigned, nor put on trial, except in parliament and by their peers. The archbishop upon this prayed the king, that, inasmuch as he had been notoriously defamed, he might be arraigned in full parliament before the peers, and there make answer; which request the king granted. (Rot. Parl. vol. ii. p.

127. Collier's Eccles. Hist. vol. i. p. 543.) The proceedings against Stratford went no further; but I think it impossible not to admit that his right to trial as a peer was fully recognised both by the king and lords.

This is, however, the latest, and perhaps the only instance of a prelate's obtaining so high a privilege. In the preceding reign of Edward II., if we can rely on the account of Walsingham (p. 119), Adam Orleton, the factious bishop of Hereford, had first been arraigned before the house of lords, and subsequently convicted by a common jury; but the transaction was of a singular nature, and the king might probably be influenced by the difficulty of obtaining a conviction from the temporal peers, of whom many were disaffected to him, in a case where privilege of clergy was vehemently claimed. But about 1357 a bishop of Ely, being accused of harbouring one guilty of murder, though he demanded a trial by the peers, was compelled to abide the verdict of a jury. (Collier, p. 557.) In the 31st of Edw. III. (1358) the abbot of Missenden was hanged for coining. (2 Inst. p. 635.) The abbot of this monastery appears from Dugdale to have been summoned by writ in the 49th of Henry III. If he actually held by barony, I do not perceive any strong distinction between his case and that of a bishop. The leading precedent, however, and that upon which lawyers princ.i.p.ally found their denial of this privilege to the bishops, is the case of Fisher, who was certainly tried before an ordinary jury; nor am I aware that any remonstrance was made by himself, or complaint by his friends, upon this ground. Cranmer was treated in the same manner; and from these two, being the most recent precedents, though neither of them in the best of times, the great plurality of law-books have drawn a conclusion that bishops are not ent.i.tled to trial by the temporal peers. Nor can there be much doubt that, whenever the occasion shall occur, this will be the decision of the house of lords.

There are two peculiarities, as it may naturally appear, in the above-mentioned resolution of the lords in Stratford's case. The first is, that they claim to be tried, not only before their peers, but in parliament. And in the case of the bishop of Ely it is said to have been objected to his claim of trial by his peers, that parliament was not then sitting. (Collier, ubi sup.) It is most probable, therefore, that the court of the lord high steward, for the special purpose of trying a peer, was of more recent inst.i.tution--as appears also from Sir E. c.o.ke's expressions. (4 Inst. p. 58.) The second circ.u.mstance that may strike a reader is, that the lords a.s.sert their privilege in all criminal cases, not distinguishing misdemeanors from treasons and felonies. But in this they were undoubtedly warranted by the clear language of Magna Charta, which makes no distinction of the kind. The practice of trying a peer for misdemeanors by a jury of commoners, concerning the origin of which I can say nothing, is one of those anomalies which too often render our laws capricious and unreasonable in the eyes of impartial men.

Since writing the above note I have read Stillingfleet's treatise on the judicial power of the bishops in capital cases--a right which, though now, I think, abrogated by non-claim and a course of contrary precedents, he proves beyond dispute to have existed by the common law and const.i.tutions of Clarendon, to have been occasionally exercised, and to have been only suspended by their voluntary act. In the course of this argument he treats of the peerage of the bishops, and produces abundant evidence from the records of parliament that they were styled peers, for which, though convinced from general recollection, I had not leisure or disposition to search. But if any doubt should remain, the statute 25 E. III. c. 6, contains a legislative declaration of the peerage of bishops. The whole subject is discussed with much perspicuity and force by Stillingfleet, who seems however not to press very greatly the right of trial by peers, aware no doubt of the weight of opposite precedents. (Stillingfleet's Works, vol. iii. p. 820.) In one distinction, that the bishops vote in their judicial functions as barons, but in legislation as magnates, which Warburton has brought forward as his own in the Alliance of Church and State, Stillingfleet has perhaps not taken the strongest ground, nor sufficiently accounted for their right of sitting in judgment on the impeachment of a commoner.

Parliamentary impeachment, upon charges of high public crimes, seems to be the exercise of a right inherent in the great council of the nation, some traces of which appear even before the Conquest (Chron. Sax. p.

164, 169), independent of and superseding that of trial by peers, which, if the 29th section of Magna Charta be strictly construed, is only required upon indictments at the king's suit. And this consideration is of great weight in the question, still unsettled, whether a commoner can be tried by the lords upon an impeachment for treason.

The treatise of Stillingfleet was written on occasion of the objection raised by the commons to the bishops voting on the question of Lord Danby's pardon, which he pleaded in bar of his impeachment. Burnet seems to suppose that their right to final judgment had never been defended, and confounds judgment with sentence. Mr. Hargrave, strange to say, has made a much greater blunder, and imagined that the question related to their right of voting on a bill of attainder, which no one, I believe, ever disputed. (Notes on Co. Litt. 134 b.)

NOTE II. Page 9.

The const.i.tution of parliament in this period, antecedent to the Great Charter, has been minutely and scrupulously investigated by the Lords'

Committee on the Dignity of a Peer in 1819. Two questions may be raised as to the lay portion of the great council of the nation from the Conquest to the reign of John:--first, Did it comprise any members, whether from the counties or boroughs, not holding themselves, nor deputed by others holding in chief of the crown by knight-service or grand serjeanty? secondly, Were all such tenants _in capite_ personally, or in contemplation of law, a.s.sisting, by advice and suffrage, in councils held for the purpose of laying on burthens, or for permanent and important legislation?

The former of these questions they readily determine. The committee have discovered no proof, nor any likelihood from a.n.a.logy, that the great council, in these Norman reigns, was composed of any who did not hold in chief of the crown by a military tenure, or one in grand serjeanty; and they exclude, not only tenants in petty serjeanty and socage, but such as held of an escheated barony, or, as it was called, _de honore_.

They found more difficulty in the second question. It has generally been concluded, and I may have taken it for granted in my text, that all military tenants _in capite_ were summoned, or ought to have been summoned, to any great council of the realm, whether for the purpose of levying a new tax, or any other affecting the public weal. The committee, however, laudably cautious in drawing any positive inference, have moved step by step through this obscure path with a circ.u.mspection as honourable to themselves as it renders their ultimate judgment worthy of respect.

"The council of the kingdom, however composed (they are adverting to the reign of Henry I.), must have been a.s.sembled by the king's command; and the king, therefore, may have a.s.sumed the power of selecting the persons to whom he addressed the command, especially if the object of a.s.sembling such a council was not to impose any burthen on any of the subjects of the realm exempted from such burthens except by their own free grants.

Whether the king was at this time considered as bound by any const.i.tutional law to address such command to any particular persons, designated by law as essential parts of such an a.s.sembly for all purposes, the committee have been unable to ascertain. It has generally been considered as the law of the land that the king had a right to require the advice of any of his subjects, and their personal services, for the general benefit of the kingdom; but as, by the terms of the charters of Henry and of his father, no aid could be required of the immediate tenants of the crown by military service, beyond the obligation of their respective tenures, if the crown had occasion for any extraordinary aid from those tenants, it must have been necessary, according to law, to a.s.semble all persons so holding, to give their consent to the imposition. Though the numbers of such tenants of the crown were not originally very great, as far as appears from Domesday, yet, if it was necessary to convene all to form a const.i.tutional legislative a.s.sembly, the distances of their respective residences, and the inconvenience of a.s.sembling at one time, in one spot, all those who thus held of the crown, and upon whom the maintenance of the Conquest itself must for a considerable time have importantly depended, must have produced difficulties, even in the reign of the Conqueror; and the increase of their numbers by subdivision of tenures must have greatly increased the difficulty in the reign of his son Henry: and at length, in the reigns of his successors, it must have been almost impossible to have convened such an a.s.sembly, except by general summons of the greater part of the persons who were to form it; and unless those who obeyed the summons could bind those who did not, the powers of the a.s.sembly when convened must have been very defective." (p. 40.)

Though I do not perceive why we should a.s.sume any great subdivision of tenures before the statute of _Quia Emptores_, in 18 Edw. I., which prohibited subinfeudation, it is obvious that the committee have pointed out the inconvenience of a scheme which gave all tenants _in capite_ (more numerous in Domesday than they perhaps were aware) a right to a.s.sist at great councils. Still, as it is manifest from the early charters, and explicitly admitted by the committee, that the king could raise no extraordinary contribution from his immediate va.s.sals by his own authority, and as there was no feudal subordination between one of these and another, however differing in wealth, it is clear that they were legally ent.i.tled to a voice, be it through general or special summons, in the imposition of taxes which they were to pay. It will not follow that they were summoned, or had an acknowledged right to be summoned, on the few other occasions when legislative measures were in contemplation, or in the determinations taken by the king's great council. This can only be inferred by presumptive proof or const.i.tutional a.n.a.logy.

The eleventh article of the Const.i.tutions of Clarendon in 1164 declares that archbishops, bishops, and all persons of the realm who hold of the king _in capite_, possess their lands as a barony, and are bound to attend in the judgments of the king's court like other barons. It is plain, from the general tenor of these const.i.tutions, that "universae personae regni" must be restrained to ecclesiastics; and the only words which can be important in the present discussion are "sicut barones caeteri." "It seems," says the committee, "to follow that all those termed the king's barons were tenants in chief of the king; but it does not follow that all tenants in chief of the king were the king's barons, and as such bound to attend his court. They might not be bound to attend unless they held their lands of the king in chief 'sicut baroniam,' as expressed in this article with respect to the archbishops and other clergy." (p. 44.) They conclude, however, that "upon the whole the Const.i.tutions of Clarendon, if the existing copies be correct, afford strong ground for presuming that owing suit to the king's great court rendered the tenant one of the king's barons or members of that court, though probably in general none attended who were not specially summoned. It has been already observed that this would not include all the king's tenants in chief, and particularly those who did not hold of him as of his crown, or even to all who did hold of him as of his crown, but not by knight-service or grand serjeanty, which were alone deemed military and honourable tenures; though, whether all who held of the king as of his crown, by knight-service or grand serjeanty, did originally owe suit to the king's court, or whether that obligation was confined to persons holding by a particular tenure, called _tenure per baroniam_, as has been a.s.serted, the Const.i.tutions of Clarendon do not a.s.sist to ascertain." (p. 45.) But this, as they point out, involves the question whether the _Curia Regis_, mentioned in these const.i.tutions, was not only a judicial but a legislative a.s.sembly, or one competent to levy a tax on military tenants, since by the terms of the charter of Henry I., confirmed by that of Henry II., all such tenants were clearly exempted from taxation, except by their own consents.

They touch slightly on the reign of Richard I. with the remark that "the result of all which they have found with respect to the const.i.tution of the legislative a.s.semblies of the realm still leaves the subject in great obscurity." (p. 49.) But it is remarkable that they have never alluded to the presence of tenants in chief, knights as well as barons, at the parliament of Northampton under Henry II. They come, however, rather suddenly to the conclusion that "the records of the reign of John seem to give strong ground for supposing that all the king's tenants in chief by military tenure, if not all the tenants in chief,[460] 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; and this opinion accords with what has generally been deemed originally the law in France, of other countries where what is called the feudal system of tenures has been established." (p. 54.) It cannot surely admit of a doubt, and has been already affirmed more than once by the committee, that for an extraordinary grant of money the consent of military tenants in chief was required long before the reign of John. Nor was that a reign, till the enactment of the Great Charter, when any fresh extension of political liberty was likely to have become established. But the difficulty may still remain with respect to "extraordinary purposes" of another description.

They observe afterwards that "they have found no doc.u.ment before the Great Charter of John in which the term 'majores barones' has been used, though in some subsequent doc.u.ments words of apparently similar import have been used. From the instrument itself it might be presumed that the term 'majores barones' was then a term in some degree understood; and that the distinction had, therefore, an earlier origin, though the committee have not found the term in any earlier instrument." (p. 67.) But though the Dialogue on the Exchequer, generally referred to the reign of Henry II., is not an instrument, it is a law-book of sufficient reputation, and in this we read--"Quidam de rege tenent in capite quae ad coronam pertinent; baronias scilicet majores seu minores." (Lib. ii.

cap. 10.) It would be trifling to dispute that the tenant of a _baronia major_ might be called a _baro major_. And what could the _secundae dignitatis barones_ at Northampton have been but tenants _in capite_ holding fiefs by some line or other distinguishable from a superior cla.s.s?[461]

It appears, therefore, on the whole, that in the judgment of the committee, by no means indulgent in their requisition of evidence, or disposed to take the more popular side, all the military tenants _in capite_ were const.i.tutionally members of the _commune concilium_ of the realm during the Norman const.i.tution. This _commune concilium_ the committee distinguish from a _magnum concilium_, though it seems doubtful whether there were any very definite line between the two. But that the consent of these tenants was required for taxation they repeatedly acknowledge. And there appears sufficient evidence that they were occasionally present for other important purposes. It is, however, very probable that writs of summons were actually addressed only to those of distinguished name, to those resident near the place of meeting, or to the servants and favourites of the crown. This seems to be deducible from the words in the Great Charter, which limit the king's engagement to summon all tenants in chief, through the sheriff, to the case of his requiring an aid or scutage, and still more from the withdrawing of this promise in the first year of Henry III. The privilege of attending on such occasions, though legally general, may never have been generally exercised.

The committee seem to have been perplexed about the word _magnates_ employed in several records to express part of those present in great councils. In general they interpret it, as well as the word _proceres_, to include persons not distinguished by the name "_barones_;" a word which in the reign of Henry III. seems to have been chiefly used in the restricted sense it has latterly acquired. Yet in one instance, a letter addressed to the justiciar of Ireland, 1 Hen. III., they suppose the word _magnates_ to "exclude those termed therein 'alii quamplurimi;' and consequently to be confined to prelates, earls, and barons. This may be deemed important in the consideration of many other instruments in which the word _magnates_ has been used to express persons const.i.tuting the 'commune concilium regni.'" But this strikes me as an erroneous construction of the letter. The words are as follows:--"Convenerunt apud Glocestriam plures regni nostri magnates, episcopi, abbates, comites, et barones, qui patri nostro viventi semper ast.i.terunt fideliter et devote, et alii quamplurimi; applaudentibus clero et populo, &c., publice fuimus in regem Angliae inuncti et coronati." (p. 77.) I think that _magnates_ is a collective word, including the "alii quamplurimi." It appears to me that _magnates_, and perhaps some other Latin words, correspond to the witan of the Anglo-Saxons, expressing the legislature in general, under which were comprised those who held peculiar dignities, whether lay or spiritual. And upon the whole we may be led to believe that the Norman great council was essentially of the same composition as the witenagemot which had preceded it; the king's thanes being replaced by the barons of the first or second degree, who, whatever may have been the distinction between them, shared one common character, one source of their legislative rights--the derivation of their lands as immediate fiefs from the crown.

The result of the whole inquiry into the const.i.tution of parliament down to the reign of John seems to be--1. That the Norman kings explicitly renounced all prerogative of levying money on the immediate military tenants of the crown, without their consent given in a great council of the realm; this immunity extending also to their sub-tenants and dependants. 2. That all these tenants in chief had a const.i.tutional right to attend, and ought to be summoned; but whether they could attend without a summons is not manifest. 3. That the summons was usually directed to the higher barons, and to such of a second cla.s.s as the king pleased, many being omitted for different reasons, though all had a right to it. 4. That on occasions when money was not to be demanded, but alterations made in the law, some of these second barons, or tenants in chief, were at least occasionally summoned, but whether by strict right or usage does not fully appear. 5. That the irregularity of pa.s.sing many of them over when councils were held for the purpose of levying money, led to the provision in the Great Charter of John by which the king promises that they shall all be summoned through the sheriff on such occasions; but the promise does not extend to any other subject of parliamentary deliberation. 6. That even this concession, though but the recognition of a known right, appeared so dangerous to some in the government that it was withdrawn in the first charter of Henry III.

The charter of John, as has just been observed, while it removes all doubt, if any could have been entertained, as to the right of every military tenant _in capite_ to be summoned through the sheriff, when an aid or scutage was to be demanded, will not of itself establish their right of attending parliament on other occasions. We cannot absolutely a.s.sume any to have been, in a general sense, members of the legislature except the prelates and the _majores barones_. But who were these, and how distinguished? For distinguished they must now have become, and that by no new provision, since none is made. The right of personal summons did not const.i.tute them, for it is on _majores barones_, as already a determinate rank, that the right is conferred. The extent of property afforded no definite criterion; at least some baronies, which appear to have been of the first cla.s.s, comprehended very few knights' fees: yet it seems probable that this was the original ground of distinction.[462]

The charter, as renewed in the first year of Henry III., does not only omit the clause prohibiting the imposition of aids and scutages without consent, and providing for the summons of all tenants _in capite_ before either could be levied, but gives the following reason for suspending this and other articles of king John's charter:--"Quia vero quaedam capitula in priori carta continebantur, quae gravia et dubitabilia videbantur, _sicut de scutagiis et auxiliis a.s.sidendis_ ... placuit supra-dictis praelatis et magnatibus ea esse in respectu, quousque plenius consilium habuerimus, et tunc faciemus plurissime, tam de his quam de aliis quae occurrerint emendanda, quae ad communem omnium utilitatem pertinuerint, et pacem et statum nostrum et regni nostri."

This charter was made but twenty-four days after the death of John; and we may agree with the committee (p. 77) in thinking it extraordinary that these deviations from the charter of Runnymede, in such important particulars, have been so little noticed. It is worthy of consideration in what respects the provisions respecting the levying of money could have appeared grave and doubtful. We cannot believe that the earl of Pembroke, and the other barons who were with the young king, himself a child of nine years old and incapable of taking a part, meant to abandon the const.i.tutional privilege of not being taxed in aids without their consent. But this they might deem sufficiently provided for by the charters of former kings and by general usage. It is not, however, impossible that the government demurred to the prohibition of levying scutage, which stood on a different footing from extraordinary aids; for scutage appears to have been formerly taken without consent of the tenants; and in the second charter of Henry III. there is a clause that it should be taken as it had been in the time of Henry II. This was a certain payment for every knight's fee; but if the original provision of the Runnymede charter had been maintained, none could have been levied without consent of parliament.

It seems also highly probable that, before the principle of representation had been established, the greater barons looked with jealousy on the equality of suffrage claimed by the inferior tenants _in capite_. That these were const.i.tutionally members of the great council, at least in respect of taxation, has been sufficiently shown; but they had hitherto come in small numbers, likely to act always in subordination to the more potent aristocracy. It became another question whether they should all be summoned, in their own counties, by a writ selecting no one through favour, and in its terms compelling all to obey. And this question was less for the crown, which might possibly find its advantage in the disunion of its tenants, than for the barons themselves. They would naturally be jealous of a second order, whom in their haughtiness they held much beneath them, yet by whom they might be outnumbered in those councils where they had bearded the king. No effectual or permanent compromise could be made but by representation, and the hour for representation was not come.

NOTE III. Page 19.

The Lords' committee, though not very confidently, take the view of Brady and Blackstone, confining the electors of knights to tenants _in capite_. They admit that "the subsequent usage, and the subsequent statutes founded on that usage, afford ground for supposing that in the 49th of Henry III. and in the reign of Edward I. the knights of the shires returned to parliament were elected at the county courts and by the suitors of those courts. If the knights of the shires were so elected in the reigns of Henry III. and Edward I., it seems important to discover, if possible, who were the suitors of the county courts in these reigns" (p. 149). The subject, they are compelled to confess, after a discussion of some length, remains involved in great obscurity, which their industry has been unable to disperse. They had, however, in an earlier part of their report (p. 30), thought it highly probable that the knights of the shires in the reign of Edward III. represented a description of persons who might in the reign of the Conqueror have been termed barons. And the general spirit of their subsequent investigation seems to favour this result, though they finally somewhat recede from it, and admit at least that, before the close of Edward III.'s reign, the elective franchise extended to freeholders.

The question, as the committee have stated it, will turn on the character of those who were suitors to the county court. And, if this may be granted, I must own that to my apprehension there is no room for the hypothesis that the county court was differently const.i.tuted in the reign of Edward I. or of Edward III. from what it was very lately, and what it was long before those princes sat on the throne. In the Anglo-Saxon period we find this court composed of thanes, but not exclusively of royal thanes, who were comparatively few. In the laws of Henry I. we still find sufficient evidence that the suitors of the court were all who held freehold lands, _terrarum domini_; or, even if we please to limit this to lords of manors, which is not at all probable, still without distinction of a mesne or immediate tenure. Vava.s.sors, that is, mesne tenants, are particularly mentioned in one enumeration of barons attending the court. In some counties a limitation to tenants _in capite_ would have left this important tribunal very deficient in numbers. And as in all our law-books we find the county court composed of freeholders, we may reasonably demand evidence of two changes in its const.i.tution, which the adherents to the theory of restrained representation must combine--one which excluded all freeholders except those who held immediately of the crown; another which restored them.

The notion that the county court was the king's court baron (Report, p.

150), and thus bore an a.n.a.logy to that of the lord in every manor, whether it rests on any modern legal authority or not, seems delusive.

The court baron was essentially a feudal inst.i.tution; the county court was from a different source; it was old Teutonic, and subsisted in this and other countries before the feudal jurisdictions had taken root. It is a serious error to conceive that, because many great alterations were introduced by the Normans, there was nothing left of the old system of society.[463]

It may, however, be naturally inquired why, if the king's tenants in chief were exclusively members of the national council before the era of county representation, they did not retain that privilege; especially if we conceive, as seems on the whole probable, that the knights chosen in 38 Henry III. were actually representatives of the military tenants of the crown. The answer might be that these knights do not appear to have been elected in the county court; and when that mode of choosing knights of the shire was adopted, it was but consonant to the increasing spirit of liberty, and to the weight also of the barons, whose tenants crowded the court, that no freeholder should be debarred of his equal suffrage.

But this became the more important, and we might almost add necessary, when the feudal aids were replaced by subsidies on movables; so that, unless the mesne freeholders could vote at county elections, they would have been taxed without their consent and placed in a worse condition than ordinary burgesses. This of itself seems almost a decisive argument to prove that they must have joined in the election of knights of the shire after the _Confirmatio Chartarum_. If we were to go down so late as Richard II., and some pretend that the mesne freeholders did not vote before the reign of Henry IV., we find Chaucer's franklin, a vava.s.sor, capable even of sitting in parliament for his shire. For I do not think Chaucer ignorant of the proper meaning of that word. And Allen says (Edinb. Rev. xxviii. 145)--"In the earliest records of the house of commons we have found many instances of sub-va.s.sals who have represented their counties in parliament."

If, however, it should be suggested that the practice of admitting the votes of mesne tenants at county elections may have crept in by degrees, partly by the const.i.tutional principle of common consent, partly on account of the broad demarcation of tenants _in capite_ by knight-service from barons, which the separation of the houses of parliament produced, thus tending, by diminishing the importance of the former, to bring them down to the level of other freeholders; partly, also, through the operation of the statute _Quia Emptores_ (18 Edward I.), which, by putting an end to subinfeudation, created a new tenant of the crown upon every alienation of land, however partial, by one who was such already, and thus both multiplied their numbers and lowered their dignity; this supposition, though incompatible with the argument built on the nature of the county court, would be sufficient to explain the facts, provided we do not date the establishment of the new usage too low. The Lords' committee themselves, after much wavering, come to the conclusion that "at length, if not always, two persons were elected by all the freeholders of the county, whether holding in chief of the crown or of others" (p. 331). This they infer from the pet.i.tions of the commons that the mesne tenants should be charged with the wages of knights of the shire; since it would not be reasonable to levy such wages from those who had no voice in the election. They ultimately incline to the hypothesis that the change came in silently, favoured by the growing tendency to enlarge the basis of the const.i.tution, and by the operation of the statute _Quia Emptores_, which may not have been of inconsiderable influence. It appears by a pet.i.tion in 51 Edward III.

that much confusion had arisen with respect to tenures; and it was frequently disputed whether lands were held of the king or of other lords. This question would often turn on the date of alienation; and, in the hurry of an election, the bias being always in favour of an extended suffrage, it is to be supposed that the sheriff would not reject a claim to vote which he had not leisure to investigate.

NOTE IV. Page 21.

It now appears more probable to me than it did that some of the greater towns, but almost unquestionably London, did enjoy the right of electing magistrates with a certain jurisdiction before the Conquest. The notion which I found prevailing among the writers of the last century, that the munic.i.p.al privileges of towns on the continent were merely derived from charters of the twelfth century, though I was aware of some degree of limitation which it required, swayed me too much in estimating the condition of our own burgesses. And I must fairly admit that I have laid too much stress on the silence of Domesday Book; which, as has been justly pointed out, does not relate to matters of internal government, unless when they involve some rights of property.

I do not conceive, nevertheless, that the munic.i.p.al government of Anglo-Saxon boroughs was a.n.a.logous to that generally established in our corporations from the reign of Henry II. and his successors. The real presumption has been acutely indicated by Sir F. Palgrave, arising from the universal inst.i.tution of the court-leet, which gave to an alderman, or otherwise denominated officer, chosen by the suitors, a jurisdiction, in conjunction with themselves as a jury, over the greater part of civil disputes and criminal accusations, as well as general police, that might arise within the hundred. Wherever the town or borough was too large to be included within a hundred, this would imply a distinct jurisdiction, which may of course be called munic.i.p.al. It would be similar to that which, till lately, existed in some towns--an elective high bailiff or princ.i.p.al magistrate, without a representative body of aldermen and councillors. But this is more distinctly proved with respect to London, which, as is well known, does not appear in Domesday, than as to any other town. It was divided into wards, answering to hundreds in the county; each having its own wardmote, or leet, under its elected alderman. "The city of London, as well within the walls, as its liberties without the walls, has been divided from time immemorial into wards, bearing nearly the same relation to the city that the hundred anciently did to the shire. Each ward is, for certain purposes, a distinct jurisdiction. The organisation of the existing munic.i.p.al const.i.tution of the city is, and always has been, as far as can be traced, entirely founded upon the ward system." (Introduction to the French Chronicle of London.--Camden Society, 1844.)

Sir F. Palgrave extends this much further:--"There were certain districts locally included within the hundreds, which nevertheless const.i.tuted independent bodies politic. The burgesses, the tenants, the resiants of the king's burghs and manors in ancient demesne, owed neither suit nor service to the hundred leet. They attended at their own leet, which differed in no essential respect from the leet of the hundred. The principle of frank-pledge required that each friborg should appear by its head as its representative; and consequently, the jurymen of the leet of the burgh or manor are usually described under the style of the twelve chief pledges. The legislative and remedial a.s.sembly of the burgh or manor was const.i.tuted by the meeting of the heads of its component parts. The portreeve, constable, headborough, bailiff, or other the chief executive magistrate, was elected or presented by the leet jury. Offences against the law were repressed by their summary presentments. They who were answerable to the community for the breach of the peace punished the crime. Responsibility and authority were conjoined. In their legislative capacity they bound their fellow-townsmen by making by-laws." (Edin. Rev. x.x.xvi. 309.) "Domesday Book," he says afterwards, "does not notice the hundred court, or the county-court; because it was unnecessary to inform the king or his justiciaries of the existence of the tribunals which were in constant action throughout all the land. It was equally unnecessary to make a return of the leets which they knew to be inherent in every burgh. Where any special munic.i.p.al jurisdiction existed, as in Chester, Stamford, and Lincoln, then it became necessary that the franchise should be recorded.