« AnteriorContinuar »
the Great Council (now unquestionably also styled, a parliament) I have on various occasions throughout this history endeavoured to show. That in respect of legislative power, what was called the Great Council shared with even the earliest Norman kings; and that, like the Saxon Witan, it was in its character representative ;, I have formerly pointed out. A baron claimed his summons as, a proprietor:, and from these baronial tenures our larger parliamentary system arose. - Through all the differences and dissensions of the many learned persons by whom these matters have been discussed, and without touching the vexed questions which their learning has left still unsolved, it seems tolerably clear that, whether or not tenure by knight's service in chief was originally distinct from tenure by barony, they had become so separated sometime before the reign of John. Tenants/in chief appear, in the first instance, to have only comprised the king's immediate rasgals.; but as time wore on, they could not so be restricted. Many of the greater baronies split up and became divided ;, while the name of baron, no matter the number of fees it represented, or for tlie, feudal service of how few or how many knights it, may, have been been responsible, was still retained.
But this led to a natural jealousy on the part of the greater proprietors; and in time to a broad distinetion, in uame at least, between the more important of those barons who held by their honours or þaronies, and the lesser proprietors whom grants of escheated '
honours might have : newly created, or whose ancient rights had been reduced by eşcheat or decay. A tenant in chief was now - not necessarily a baron ; or he might be a baron of inferior grade. It is more difficult to determine what regulated: the issue of writs of, summons; but it seems probable that the same jealousy to which I have adverted, induced the distinction which is first observable in John's reign, between the greater baron summoned by his special writ, and the inferior tenants in chief called together by a summons directed to their sheriff. It is clear also, that, though all were entitled to summons, the mere right of tenure could not dispense with its forms; and an unsummoned tenant, without resorting to such remedies as might compel: the issue of the writ, could not take his place in the council..
Up to this point, it will be observed, the principle is distinctly that of Feudal representation. The immediate vassals of the crown, representing certain land, possess the personal right to be
present in parliament. They are the liegemen of the sovereign ; and, by the universal feudal compact, though aid could be asked of the liegeman, the man's consont was necessary to legalise the aid; while this relation, implying protection from the lord, conveyed a further right to insist upon guarantees for that protection. In this view, the presence of both larger and lesser tenants was necessary, and even exacted by the crown as needful to the authority and execution of a law. But as tlie inferior tenants increased, the tax for parliamentary attendance on men of smaller fortunes became intolerable ; and their consent and attendance came to be implied in that of the greater barons. Still, they were supposed be in the council ; and it seems to me that we may trace to the mere form and legal fiction thus resorted to, the gradual transition from a mere feudal to a more real representation. It is wonderful with what silent power, happily unknown to those who might otherwise strive to control it, a growing and enlarging society of men will adapt and modify old institutions to new necessities, at once widening and strengthening their foundations.
As the inferior tenants in chief gradually withdrew from the council, its component members became restricted to the bishops and abbots, the earls and barons, the ministers and judges, and neighbouring knights holding of the crown. But the language of the writs continued to imply a much larger attendance. When, for example, the Great Charter was confirmed in the ninth year of the present reign, the roll informs us that at the same time a fifteenth had been granted in return by the bishops, earls, barons, knights, free tenants, and all of the kingdom (pro hac donatione et concessione......archiepiscopi, episcopi, comites, barones, milites, et liberè tenentes, et omnes de regno nostro Angliæ, spontanea voluntate sua concesserunt nobis efficax auxilium): and when, seven years later, a fortieth was granted, we find the strange and ominous combination of bishops, earls, barons, knights, freemen, and villeins,' put forth as having concurred in the grant. This was a fiction with an expanding germ of truth. The consent of particular classes was to be understood, as a matter of course, to be included in that of others. But the emptiest acknowledgment of a right is precious. The right itself waits only its due occasion to assume the substance and importance of reality.
Nor had the English freeman, even under his earliest Norman kings, been wholly without the means of knowing what representation meant. When the Conqueror or his sons had any special reason to make inquiry into their own rights; when particular wrongs of the people reached them, or peculations were charged against their barons or officers ; nothing was more common than a commission of knights in each shire, not simply named by the sovereign (as when the Conqueror issued his inquiry into the details of the Saxon law) but as frequently elected in the county court, whose business it was to proceed from hundred to hundred, to make investigation upon oath, and to lay the result before the king either in council or parliament. The Great Charter contained a provision for the election of twelve knights in the next court of each county, to inquire into forest abuses. In the seventh year of the present reign every sheriff was ordered to inquire, by means of twelve lawful and discreet knights, what special privileges existed in his shire on the day of the first outbreak between John and his barons. And in the very year to which I have brought this history, a commission of four knights in each county received it in charge to inquire into certain exeesses committed by men in authority. So also in relation to the levy of subsidies. As far back as half a century before this date, the most ancient instance of a subsidy on record (that of 1207) we find to have been collected by the itinerant judges; but only thirteen years later (1220) we discover the office of collection deputed to the sheriff, in conjunction with two knights to be chosen in a full court of the county with the consent of all the suitors.
Was it not obvious that such usage as this must grow as the people grew? Was not the collection of taxes and the report of grievances, the manifest step to a power over the money collected, and to a right of petition against the grievances exposed ? Do we not discern, throughout these efforts of Norman royalty to check the excess of its ministers and obtain the co-operation of its people, the vague formation of that authority and house of the Commons, which has proved more formidable than either of the powers it was called into existence to control ?
A writ has been discovered of the date of two years before the Great Charter, which makes the first distinct transition to this vast and memorable change. It combines a summons for military service, with an order that four discreet knights of the county (quatuor discretos milites de comitatu tuo) should be sent to Oxford without arms to treat with the king concerning the affairs of the kingdom (ad loquendum nobiscum de negotiis regni nostri.) This was a summons to parliament. Its terms are the same as
those of later date. And it is followed, after an interval of forty years, by another and more decisive instance. While the present king was on the continent in 1254, his queen and regents summoned the tenants in chief to sail to his assistance; and gave order in the summons, that “ besides these, two lawful and discreet
knights should be chosen by the men of every county in the * place of all and each of them, to assemble at Westminster, and to determine with the knights of the other counties what aid * they would grant to their sovereign in his present necessity, so that the same knights might be able to answer in the matter of the said aid for their respective counties,”
Of the meaning of such a writ and its return there cannot be a question ; nor is it easy to understand the discussion it has raised. Call it singular, anomalous ; or by what name may seem best fitted to express its irregular character ; except it from ordinary parliaments, and call it a convention ;-still the undeniable fact remains, that it was a scheme to obtain money from the commons of the various counties, and that to this end it prescribed the election of representatives whose determination and assent should controul those of their constituents. The language of the writ connects itself undoubtedly with that of its predecessor in the fifteenth of John. It is quite immaterial whether or not the barons and higher tenants in chief were summoned to sit with these knights. Enough that the commons of the shires were thus admitted to a coordinate share in the imposition and voting of taxes. Whatever antiquarians may urge as to Parliament's use of one chamber at Westminster, up to the middle of the third Edward's reign (abundant proof exists of separate sittings in other parts of England), it is sufficiently clear that the voting must always have been by each order separately, and without interference from each other. The mere circumstance of the different proportions of taxation would be evidence of this.
Here, then, in the 38th of Henry the Third, we have the principle of a real representation become part of our English constitution. Yet there had been no violent effort to obtain this acknowledgement. It had grown out of that increasing importance of the people, each step of whose development it has been the object of this history to trace. From lesser they had quietly risen to higher duties. The knight, whose business it had been to assess subsidies, was at length admitted by the side of the earls and barons to aid in the disposition of the money so obtained. That
they were admitted merely as the deputies of others, appeared even in the remuneration set apart for them. Great men such as carls and barons, who attended in their own right, paid their own charges ; men of smaller substance who had simply undertaken to transact business for others, were thought to have a right to compensation from those in behalf of whom they acted. As they were paid for their labour in assessment, so for their sacrifice of time and labour in representation they were paid. Wherefore a rate levied on the county discharged their expenses for so many specified days, in going, staying, and returning.' ,
This county rate would seem to have an important bearing on another branch of this inquiry, which has been sadly encumbered with needless learning and misplaced vehemence of discussion. It has been doubted, by antiquarians who would narrow as much as possible the basis on which our English freedom has been built, whether these representative knights did not simply represent the inferior tenants in chief (from whose reluctance to attend in parliament they first derived importance), and are not to be taken to have had relation to the county at large. But every reasonable supposition negatives this. The wages of the knights were levied on the whole county (de communitate comitatûs). The mesne tenant could hardly have been denied a right to the support of which he was obliged to contribute. That What concerned All should be approved by All, was a maxim not unused by even Norman kings. Nor can anything be more specific than the language of the writs of election. The tenants in chief are never mentioned in them. Tenants of the crown implied both tenants by free and by military service. The condition required of the candidate was to be discreet and lawful ; of the electors to be suitors of the county ; and of the election to be made in a full court. · A full county court was always the least feudal of the modified feudality that prevailed in England. It comprised all freeholders ; whether of the king, of a mesne lord, or by military, or any other free service ; and it surely therefore cannot admit of a doubt, that the knights of the shire in the reign of Henry the Third, as in that of Victoria the First, represented without regard to the quality of tenure the whole body of freeholders.
Still, they were knights. Their station associated them with the earls and barons. They were part of what in feudal institution was held to be a lower nobility. They did not rank with burgess or citizen' churl. · They represented the power of the
NO. XXI.- VOL. IV,