Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

The occasion of creating baronets was this. On the escheat of the six counties in Ulster, they were planted with colonies of Scotch and English; and, as it was necessary to support a standing army there, for some years after, for the defence of the infant settlements, and money was wanting for that purpose, as, in that reign, it always was for every other, this scheme of creating an order of hereditary knights, to take place after the barons, was fixed upon for that purpose. At first it had some aspect towards military service, for each of them was obliged to maintain so many soldiers in the plantation, for a limited time; and to make the honour more valuable, and to get the better terms for it in the first plan, it was provided, that no more than two hundred should be originally created; and when any of them failed, no new ones to be created in their room. But it was soon seen that these new knights, when they had once attained their dignities, might not duly perform the services they engaged for. The maintaining the soldiers, therefore, was commuted into a sum paid to the king, who undertook to do it; and had he been a good œconomist, it would have been a prudent precaution, but whatever sums he could lay his hands on were always at the mercy of his reigning favourite. He was, therefore, obliged to depart from his intended limitation, and to exceed his number; and yet, after all, the service was not done so well as it should have been. His successors have followed his example, in adding to the number, which now is certainly unlimited[275].

Next to the gentry, or military order, in estimation among the northern nations stood the citizens and burghers, that is, the trading part of the nation, whether merchants or artificers. These were for some ages held in a very low light, none of the conquerors or their defendants applying themselves to such occupations. They were, indeed, at first, allowed certain privileges and enjoyed their own laws, under the inspection of magistrates appointed by the king, known by the name of Præpositi, Provosts, or some other equivalent title. But these liberties did not last long. The turbulent temper of the times, the frequent competitions for the throne, and the many rebellions of the great lords, occasioned the towns and their inhabitants to be taken in war, one after another; and the persons so taken, were, by the prevailing Jus Gentium of these ages reduced to servitude; not, however to a condition so low as the villeins, who were, properly, the slaves of those people, and had no property but at the will of their lords. However it is, no state, except one absolutely barbarous, could subsist without artizans; and as commerce is the parent of wealth, and as neither it, nor arts, could thrive where property is not, in some sort, secure, the lords were in some degree, by their own interest, obliged to relinquish to these people the seizing of their goods at pleasure, as they practised towards their villeins, and to leave them at liberty to make regulations among themselves for the benefit of trade[276].

Thus far, then, they were free, but their servitude consisted in their being liable to taxes, or tailliages, at the will of the lords, who, if they were wise, laid on such only as they could well bear; but miserable was their condition when they fell into the hands of one who was needy and rapacious; for, then, they were often fleeced, even to ruin and depopulation. This induced the wiser lords, who saw the consequences, and how much the arbitrary exertion of such powers must, in the end, hurt themselves, to restrain their own powers; and, by degrees, by granting them charters, to emancipate them. They formed them into bodies corporate, confirmed the right of making bye-laws, which had been permitted them, and granted them other privileges, or franchises, as they called them, from their being infranchised, in derogation to former regal or seignoral rights. But for their total freedom they were indebted to parliament, which, seeing the bad use king John made of his right in this kind, provided thus in Magna Charta, Civitas London habeat omnes libertates suas antiquas, & consuetudines suas. Præterea volumus & concedimus, quod omnes aliæ civitates, burgi, & villæ, & barones de quinque portubus, & omnes alii portus, habeant omnes libertates & liberas consuetudines suas. And another chapter restrains the king from laying new and evil tolls, and confines him to the antient customs[277].

Hitherto, however, the citizens and burgesses were no part of the body politic, and were not represented in parliament. But as, with their security, their wealth and consequence encreased, about, or before the year 1300, they were admitted to that privilege; that they might, in conjunction with the knights of shires, be a check on the overgrown power of the mighty lords; and about that time also the same privilege was allowed to this class of people in the other nations of Europe also. This right was confirmed, and so I may say, the house of commons, in its present condition, formed by the statute of the thirty-fourth of Edward the First. Nullum tallagium vel auxilium, per nos vel heredes nostros, in regno nostro ponatur, seu levetur, sine voluntate & assensu archiepiscoporum, episcoporum, comitum, baronum, militum, burgensium, & aliorum liberorum communium de regno nostro; where we see, not only the burgesses, but free yeomen also had representatives, namely, by their voting along with the knights of the shires, according to the maxim of that wise prince, Quæ ad omnes pertinent, ab omnibus debent tractani[278].

Having come to the constitution of the house of commons as it stands at present, it will not be amiss to look back, and see how far its present form agrees with, or differs from the feudal principles. These principles, we have seen, were principles of liberty; but not of liberty to the whole nation, nor even to the conquerors; I mean, as to the point I am now upon, of having a share in the legislation. That was reserved to the military tenants, and to such of them only as held immediately of the king. And the lowest and poorest of these also, finding it too burthensome to attend these parliaments, or assemblies, that were held so frequently, soon, by disuse, lost their privileges; so that the whole legislature centered in the king, and his rich immediate tenants, of his barony. And it is no wonder the times were tempestuous, when there was no mediator, to balance between two so great contending powers, and were it not that the clergy, who, though sitting as barons, were in some degree a separate body, and had a peculiar interest of their own, performed that office, sometimes, by throwing themselves into the lighter scale, the government must soon have ended either in a despotical monarchy, or tyrannical oligarchy.

Such were the general assemblies abroad in the feudal countries, but such were not strictly the wittenagemots of the Saxons, for their constitution was not exactly feudal. I have observed that the most of their lands were allodial, and very little held by tenure. The reason I take to be this: On their settlement in Britain they extirpated, or drove out, the old inhabitants, and therefore, being in no danger from them, they were under no necessity of forming a constitution compleatly military. But then those allodial proprietors being equally freemen, and equal adventurers with these who had lands given them by tenure, if any in truth had such, they could not be deprived of their old German rights, of sitting in the public assemblies. From the old historians, who call these meetings infinita multituda, it appears that they sat in person, not by representation[279].

This constitution, however, vanished with the conquest, when all the lands became feudal, and none but the immediate military tenants were admitted. We find, indeed, in the fourth year of William the First, twelve men summoned from every county, and Sir Matthew Hale will have this to be as effectual a parliament as any in England[280]; but, with deference to so great an authority, I apprehend that these were not members of the legislature, but only assistants to that body. For if they were part thereof, how came they afterwards to be discontinued till Henry the Third’s time, where we first find any account of the commons? The truth seems to be, that they were summoned on a particular occasion, and for a purpose that none but they could answer. On his coronation he had sworn to govern by Edward the Confessor’s laws, which had been some of them reduced into writing, but the greater part were the immemorial custom of the realm; and he having distributed his confiscations, which were almost the whole of England, into his follower’s hands, who were foreigners, and strangers to what these laws and customs were, it was necessary to have them ascertained; and, for this purpose, he summoned these twelve Saxons from every county, to inform him and his lords what the antient laws were. And that they were not legislators, I think appears from this, that when William wanted to revive the Danish laws, which had been abolished by the Confessor, as coming nearer to his own Norman laws, they prevailed against him, not by refusing their consent, but by tears and prayers, and adjurations, by the soul of Edward his benefactor.

Thus William’s laws were no other than the Confessor’s, except that by one new one, he dextrously, by general words, unperceived by the English, because couched in terms of the foreign feudal law, turned all the allodial lands, which had remained unforfeited in the proprietor’s hands, into military tenures. From that time, until the latter end of Henry the Third’s reign, our parliaments bore the exact face of those on the continent in that age; but then, in order to do some justice to the lesser barons, and the lower military tenants, who were entitled by the principles of the constitution to be present, but disabled by indigence to be so in person, they were allowed to appear by representation, as were the boroughs about the same time, or soon after. The persons entitled to vote in these elections for knights of the shire, were, in my apprehension, only the minor barons, and tenants by knight service, for they were the only persons that had been omitted, and had a right before, or perhaps with them, the king’s immediate socage tenants in capite.

But certain it is, the law that settled this had soon, with regard to liberty, a great and favourable extension, by which all freemen, whether holding of the king mediately or immediately, by military tenure or otherwise, were admitted equally to vote; and none were excluded from that privilege, except villeins, copy-holders, and tenants in antient demesne. That so great a deviation from the feudal principles of government happened in so short a time, can only be accounted for by conjecture. For records, or history, do not inform us. I shall guess then, that the great barons, who, at the end of Henry the Third’s reign, had been subject to forfeiture, and obliged to submit, and accept of mercy, were duly sensible of the design the king had in introducing this new body of legislators, and sensible that it was aimed against them, could not oppose it. But, however, they attempted, and for some time succeeded to elude the effects of it, by insisting that all freemen, whether they held of the king, or of any other lord, should be equally admitted to the right of the representation.