First, the number of tenants in chief, or the king’s freeholders, was much increased by various causes, but chiefly by the alienation which the greater barons made of their fees. Such alienation, though under some restraint, seems to have been generally permitted in the Norman feuds; I mean, till Magna Charta and some subsequent statutes laid it under particular limitations. But, whether the practice were regular or not, it certainly prevailed from the earliest times; especially on some more extraordinary occasions. Thus, when the fashionable madness of the Croisades had involved the greater barons in immense debts, in order to discharge the expences of these expeditions, they alienated their fees, and even dismembered them; that is, they parted with their right in them, and made them over in small parcels to others, to hold of the superior lord. And what these barons did from necessity, the crown itself did, out of policy: for the Norman princes, growing sensible of the inconvenience of making their vassals too great, disposed of such estates of their barons as fell in to them by forfeiture, and were not a few, in the same manner. The consequence of all this was, that, in process of time, the lesser military tenants in capite multiplied exceedingly. And, as many of them were poor, and unequal to a personal attendance in the court of their lord, or in the common council of the kingdom (where of right and duty they were to pay their attendance), they were willing, and it was found convenient to give them leave, to appear in the way of representation. And this was the origin of what we now call the Knights of the Shires; who, in those times, were appointed to represent, not all the free-holders of counties, but the lesser tenants of the crown only. For these not attending in person, would otherwise have had no place in the king’s council.
The rise of Citizens and Burgesses, that is, representatives of the cities and trading towns, must be accounted for somewhat differently. These had originally been in the jurisdiction, and made part of the demesnes, of the king and his great lords. The reason of which appears from what I observed of the genius of the feudal policy. For, little account being had of any but martial men, and trade being not only dishonourable, but almost unknown in those ages; the lower people, who lived together in towns, most of them small and inconsiderable, were left in a state of subjection to the crown, or some other of the barons, and exposed to their arbitrary impositions and talliages.
But this condition of burghers, as it sprang from the military genius of the nation, could only be supported by it. When that declined therefore, and, instead of a people of soldiers, the commercial spirit prevailed, and filled our towns with rich traders and merchants, it was no longer reasonable, nor was it the interest of the crown, that these communities and bodies of men should be so little regarded. On the contrary, a large share of the public burdens being laid upon them, and the frequent necessities of the crown, especially in foreign wars, or in the king’s contentions with his barons, requiring him to have recourse to their purses, it was naturally brought about that those, as well as the tenants in capite, should, in time, be admitted to have a share in the public councils.
I do not stay to trace the steps of this change. It is enough to say, that arose insensibly and naturally out of the growing wealth and consequence of the trading towns; the convenience the king found in drawing considerable sums from them, with greater ease to himself, and less offence to the people; and, perhaps, from the view of lessening by their means the exorbitant power and influence of the barons.
From these, or the like reasons, the great towns and cities, that before were royal demesnes, part of the king’s private patrimony, and talliable by him at pleasure, were allowed to appear in his council by their deputies, to treat with him of the proportion of taxes to be raised on them, and, in a word, to be considered it the same light as the other members of that great assembly.
I do not inquire when this great alteration was first made. I find it subsisting at least under Edward III. And from that time, there is no dispute but that the legislature, which was originally composed of the sovereign and his feudal tenants, included also the representatives of the counties, and of the royal towns and cities. To speak in our modern style, the House of Commons was, now, formed. And by this addition, the glorious edifice of English liberty was completed.
I am sensible, I must have wearied you with this deduction, which can be no secret to either of you. But it was of importance to shew, that the constitution of England, as laid in the feudal tenures, was essentially free; and that the very changes it hath undergone, were the natural and almost unavoidable effects of those tenures. So that what the adversaries of liberty object to us, as usurpations on the regal prerogative, are now seen to be either the proper result of the feudal establishment, or the most just and necessary amendments of it.
BP. BURNET.
I have waited with much pleasure for this conclusion, which entirely discredits the notion of an absolute, despotic government. I will not take upon me to answer for Mr. Somers, whose great knowledge in the laws and history of the kingdom enables him to see further into the subject than I do; but to me nothing appears more natural or probable than this account of the rise and progress of the English monarchy. One difficulty, in particular, which seemed to embarrass this inquiry, you have entirely removed, by shewing how, from the aristocratical form which prevailed in the earlier times, the more free and popular one of our days hath gradually taken place, and that without any violence to the antient constitution[127].