Front Page Titles (by Subject) CHAP. I.: The general Nature of the Gothic Constitution described, which the barbarous Nations introduced and settled in every Part of Europe, and particularly in England.—Various antiquated Customs and Laws explained relative thereto.—These Laws either n - A Treatise Concerning Civil Government in Three Parts
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CHAP. I.: The general Nature of the Gothic Constitution described, which the barbarous Nations introduced and settled in every Part of Europe, and particularly in England.—Various antiquated Customs and Laws explained relative thereto.—These Laws either n - Josiah Tucker, A Treatise Concerning Civil Government in Three Parts 
A Treatise Concerning Civil Government in Three Parts (London: T. Cadell, 1781).
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The general Nature of the Gothic Constitution described, which the barbarous Nations introduced and settled in every Part of Europe, and particularly in England.—Various antiquated Customs and Laws explained relative thereto.—These Laws either not understood, or wilfully misrepresented by our modern Lockians.
THOUGH I have in the preceding Work endeavoured to illustrate several antient Laws and Customs, the Knowledge of which are totally unknown to the Generality of News-Paper Politicians;—yet I find myself under a Kind of Necessity of giving a still more general Sketch of the Out-lines, of our former Gothic Constitution, in order to guard against the Misrepresentations of certain late Publications, circulated and dispersed with incredible Industry;—whose Authors must have had an uncommon Share either of Ignorance or of Disingenuity, intending only to give the Out-lines of the Gothic System, which once universally prevailed. I will endeavour to be as brief, as the Nature of the Subject will permit.
Setting aside the Clergy, whose Office and Character created them a distinct Consideration, there were but three general Classes of Men in this, and in every other Kingdom in Europe;—The Villains,—the Tradesmen,—and the Gentlemen.
The Villains were the lowest Class, but they were by far the most numerous: For there was hardly any Kind of laborious, or servile Work in all Branches of Husbandry performed by any other Class of Men. Nevertheless, they too had their Gradation of Servitude. For some of them were Villains in gross, other Villains regardant Manors [not to mention the Bordarii, Cottarii, &c. &c.] and the Rest were Copy-holders;—of which latter also there were various Kinds, and different Degrees.
The Villains in gross seem to have been on the same Footing with the Negro Slaves at present in the West-Indies. And as one of the chief Articles of Export from England to other Countries [even to Ireland.] during the Times of the Angle-Saxons, was this horrid Trade of selling their Fellow Creatures,—it is probable that such Slaves were Villains in gross.
The next Species were Villains regardant, or appendant to Manors. Being attached to the Soil [Globae ascriptitii.] They could not regularly be separated from it, without their own Consent: Consequently they passed with the Manor from Lord to Lord, as often as the Land changed its Master or Proprietor by Purchase, Donation, Devise, or Descent. However, Slaves they were in every Sense: For their Lord and Masters might use their own Discretion in imposing upon them, what Burdens or Tasks they pleased; and might punish them also very severely, without being accountable to any one;—provided they did not maim or kill them. Moreover these poor Wretches were not capable of acquiring any Property for themselves; for all theirs were their Masters.
The Severity of this Bondage became milder in Process of Time, by the Institution of Copyhold Tenures. The Villains of this Denomination were comparatively happy: because they had certain Portions of Land assigned them, which in some Respects they might call their own, provided they performed the Conditions annexed thereto. These Services were at first so much manual Labour, or so many Days’ Work, according as their Lord should appoint: Also the Copy-holders were generally obliged to furnish him with certain Quantities of Provisions of different Kind, of Corn, Cattle, Poultry, Meal for his Dogs, &c. &c. &c. Moreover there were often added to these Services, various other Stipulations, some of them not amiss, and others very ridiculous and absurd, to say no worse. But all, or most of them, as they took their Rise from the mere Will and Pleasure, or Caprice of the first Granter, became afterwards a Kind of Law to both Parties, that is, both to the Lord, and his Vassal; and were therefore called the Customs of the Manor, and held to be sacred for a long Season. However as the seudal System was evidently more the Work of present Necessity, than of cool and provident Deliberation, these Tenures were softened by little, and little, into more liberal Holdings, according as the Times became more peaceable and settled. The Services were often changed into annual Quit-Rents, and the Herriots, Escheats, Forseitures, Admittances, and Reliefs, were turned into Fines certain, and fixed Sums of Money. Moreover, several of these Holdings were made perpetual, according to the Custom of the Manor: And the Nature or Condition of most of the Rest was so changed, as to differ little from Lands held in Soccage. Indeed Soccage itself was a base, or servile Tenure: For whatever was not military, was base, according to the Ideas which then prevailed. The worst Part of this Institution, and what drew after it real Tyranny on the one Side, and Slavery on the other, was, that the Copy-holder seemed to be without a Remedy, in Case he was oppressed by his Lord: For he had no other Jurisdiction, at least in the first Instance, and in Civil Causes, to appeal to, but the Court Leet, or Court Baron of that very Man, his Steward, Bailiff, &c. who was his Oppressor. Happily at present all these Evils are effectually removed: And indeed the Institution itself, as far as it carries an Idea of Slavery, is vanishing away. For, as no new Copy-holds can now be erected, and as there are so many Ways of turning the old ones into different Holdings [which are putting in Practice every Day] it is probable, that this Kind of Tenure will be extinct. [The whole Manor of Taunton-Dean in Somersetshire, containing so many Thousands of Inhabitants, is Copy-hold of Inheritance under the Bishop of Winchester, and might be turned into distinct Freeholds for a trifling Consideration.] The several Tenures of base Condition [including Borderers, and Cotters, also Copy-hold and Soccage] were once so numerous, as to sustain a far greater Number of Inhabitants, than the noble, or military;—and the Peasantry and Yeomanry of this Kingdom, and perhaps several other Orders of Men, who now figure away in high Life, can trace their Pedigree from no other Origin, than that of Villainage, in one or other of its Branches.—Be it also remembered, that Villains of any Sort, were never considered as Citizens at large, or as Members of the State,—but rather as Goods and Chattels of a superior Kind, belonging to their respective Owners or Proprietors. Nay, Magna Charta itself considered these human Beings in no better Light than as so many Head of Cattle, or other live Stock, upon an Estate; ordaining [see Article the 5th.] That, whilst the Estate of a Minor was in Wardship, the Guardian should make no Destruction or Waste of the Men, or Things belonging to it. Such were the Ideas of Humanity, and its Rights, which then prevailed. In short, Slaves of any Sort were never allowed to vote. They were not represented in Parliament, and they had no Share in the Legislature. Therefore,—Whether Parliaments were to be held annually, or not,—and what was to be the Qualification either of a Freeholder, or of a Freeman, in order to entitle him to vote; was a Question in which they were not concerned; nor was it of any Consequence to them how these Matters were to be determined.—In one Word, the Majority of the Nation, as to Numbers, were not Electori ab Initio. This is Fact.
Under the present Head the following Observations may be ranged, as they tend to throw a general Light on the Subject;—namely, That formerly almost every Lord of a Manor had three Sorts of Lands within the Boundaries of his Lordship. The first Sort was for his own peculiar Use, that is, for the Support of himself and Family, and for the keeping of what was then called great Hospitality. This Lot of Land was generally large and extensive, lying compact, and convenient round his Castle, or Court-House, and not intersected by, or intermixed with the Property of others. The second Sort was for his military Tenants, or Freeholders, who were to pay him annually some small Acknowledgment in Money, or perhaps none at all, the Estate being only subject to Reliefs, Wardships, Heriots, the furnishing of so many Pieces of Armour, warlike Stores, and the like. But all these Tenants were to do Suit and Service at the Court of his Manor-House, according to their respective Holdings; which Attendance was then equivalent, or nearly equivalent to what the calling over the Muster-Roll of Soldiers is at present.—But it is remarkable, that the Estates granted to these Warriors, or second-rate Gentlemen, were not only of less Extent than the former (which is natural enough to suppose) but also greatly interspersed and intermixed with the Estates of other Tenants; so that (excepting the mere Homesteads, or Lands surrounding the Mansion-Houses) the chief Part lay confusedly dispersed in Common Fields, and Common Meadows.—However these were not scattered in any Degree so much as the last Class to be mentioned and the most numerous, viz: The Estates of Copyholders; for these Men had hardly five Acres lying together; on the contrary an Holding of 40, or 50 Acres might be found to be divided into Bits and Scraps, called Langlets, Headlands, Gores, Rudges, Lands, &c. &c. perhaps to the Number of Fourscore, or an Hundred Pieces.—It is difficult to discover what could have been the Policy of such a Contrivance:—For that a Contrivance it was, [and not what happened by mere Chance or Accident] is evident beyond Dispute: The very Universality of it, were there no other Proof, being sufficient to shew, that some End or other was intended to be answered by it.—I acknowledge myself at a Loss to guess what that End could be;—unless it was to keep both Sorts of Tenants the more dependent on their original Lords, by Means of those frequent Appeals, which must be made to his Courts, in order to settle the Disputes, which such an Intermixture of Property, and mutual Encroachments, (some perhaps voluntary, and others involuntary) would necessarily create.—Such a Motive as this for the Institution was certainly a very bad one;—and yet bad as it was, it is hard to assign a better.—[If it was to increase the Fees and Profits of the Court for the Benefit of the Steward, or Court-Keeper, that was certainly a worse.] Be that as it may, Fact it is, that it has cost this Nation already many Scores of Acts of Parliament, and almost as many Thousands of Pounds to undo those Mischiefs which have sprung from this Intermixture of Property, the Confusion of Interests, and the Discord of Inclinations of different Landholders.
ARTIFICERS and TRADESMEN, The Second Class.
As no Trade was honourable among barbarous Nations but the Trade of War, it is therefore highly improbable, that a Gentleman-Soldier should so far degrade himself, as to take to any other Employment, than that of the Sword. Nevertheless there was a Necessity that other Trades, besides that of destroying Mankind, should subsist even in Times of the greatest Simplicity. Villains of different Kinds were to furnish the Warrior with Victuals:—But how was he to be supplied with Raiment, and Dwelling? and who was to serve him with all the Articles whatever of Profit, or of Pleasure, of Use, or of Ostentation belonging to Cloathing and Habitation? Things these, which require many Hands, and infinitely more Skill and Judgment, and much larger Capitals, than are necessary for the bare Preparation of coarse Food.—To get over these Difficulties, both the Prince and his great Lords condescended to invite as many Tradesmen and Artizans as they could collect, or as they thought necessary, to settle in some commodious Spot on their principal Domains, near their Castles and Places of Residence, under their own immediate Patronage and Protection.—And for their greater Security and Encouragement, they granted them Charters, which were originally designed to answer much the same Ends to Artificers in Towns as Copies of Court Rolls were to those poor Dependants, who were called Villains in the Country.—For as the lesser Lords of Manors did not chuse that any should tyrannize over their own Vassals but themselves; so likewise the Magnates, the Proceres Regni, and the Sovereign, took especial Care to guard their Traders and Mechanics from any Insults but their own. At first these Charters of Protection were very sparingly granted, and contained little more than general Promises of Favor and Good Will.—During this Period, these Collections, or little Nests of Pedlars and Artificers, were not considered as Members of the State; for they had no Representatives in the national Councils; and of course had no Share in the Legislature. On the contrary, they were regarded as the private Property of their respective Patrons and Protectors, the King, and the great Barons, who were to answer to the Public for their good Conduct and Behaviour. But a Circumstance arose, which gave them much greater Weight and Importance in the Community, than otherwise they would have acquired, perhaps for Ages.—This remarkable Revolution in their Favour came to pass in the following Manner: When there were no more Countries in Europe for the Northern Barbarians and Free-booters to subdue, these Heroes by Profession would have been greatly at a Loss, how to have employed their Time, had not a certain enthusiastic Monk, whose Name I think, was Peter, hit on an Expedient to employ vast Numbers of them, in the military Line, and assuring them at the same Time, that the more Throats they cut, the greater would be their Reward in Heaven. The Scheme proposed was to undertake Pilgrimages to Jerusalem, and to sight for the Recovery of the Holy Land, out of the Hands of the Infidels. Joyful News indeed! For no sooner had this Fanatic announced his Commission, and got the Pope and some Councils to ratify the Promises of eternal Happiness, than the whole Host of idle Warriors throughout most Parts of Europe were seized with an epidemical Madness to engage in this Holy War [The Cause of God, as it was called]; and to purchase Heaven on such soldier-like Terms. So great was their Phrensy, that they never reflected that in passing from Europe to Palestine they would be under a Necessity of laying in great Quantities of Provivisions, Hay, Straw, &c. in order to form Magazines, and of storing up Medicines for the Use of Hospitals, to accommodate not only the Troops of * God, but also the prodigious Numbers of other Pilgrims [among whom were Swarms of Females of Quality] during so long a March, or so long a Voyage. But furious and frantic, they rushed headlong on the Expedition expecting to be sed and cured by Miracles. The first Host of these pious Mad-Men and Women miserably perished, some few excepted, who brought home with them that loathsome Disease called the Lepresy, and likewise the Knowledge and Experience, that long Marches and long Voyages require many other Things besides enthusiastic Zeal, and brutal Courage.
Therefore whilst the blood-thirstly Zealots, the Monks, were preaching up a Revival of the Crusade, with Crosses in their Hands, the second, and third, and fourth Swarms were collecting together, various Ways and Means were suggested towards raising Money for defraying the enormous Expence of these frantic Expeditions. Among other Expedients, it was conceived, that the emancipating those little Societies of Tradesmen, who were settled in different Parts of the Kingdom, and empowering them to elect their own Magistrates, and to make Bye-Laws for their own internal Government; also exempting them from all arbitrary Impositions. Tolls, or Taxes, would bring good Sums of Money to the King, and to the great Lords, on whose Estates they were settled,—at the same Time, that the Measure itself would be highly acceptable to the Purchasers of such Charters. Therefore it is not improbable, but that William II. Henry I. Stephen, and Henry II. availed themselves, as did likewise some of the greater Barons, of this Mode, this very popular Mode of raising Money. But above all, our glorious Richard I. [that Lion-hearted Man, Cæur de Lion, who went in Person to the Holy War, and who had great Need of this Kind of Merit, to atone for the Want of almost every moral Virtue.] I say, it is not to be doubted, but that Richard I. sold as many Charters as he could find Purchasers. Which Example was most probably followed by John, by Henry III. and the three first Edwards. [Indeed Charters of Exemption were to be had in such Plenty on all Occasions, in those Times, that even private Persons used to purchase them to be freed from being impannelled in Assizes’ Juries, and Inquests: [See 52d of Henry III. Chap. 14.] Nay, I believe, it would be found on Examination, that almost all the old Charters to Cities, or Towns-Corporate, were granted during the Phrensy of the several Crusades, which lasted from the Time of William II. to Edward III. or thereabouts, that is, during the Space of upwards of 200 Years! Astonishing Insatuation! and utterly incredible—had we not Instances of as great, or even greater national Infanity in our own Times, in fighting for Countries still farther off, and of much less intrinsic Value than Palestine or Syria,—yet who knows, but that Providence may in this, as in the former Case, bring much Good out of Evil?—But to return. Certain it is, that in the Reign of Edward I. not a few of these trading Places were grown up into so much Consequence, as to be thought worthy to be summoned to send Representatives to Parliament: Which Summons, as far as appears, was the first they ever had; for there are no * Records extant of their sending Representatives before the 23d of Edward I.—or even of their being required to send them.
However these newly-erected Corporations were so far from esteeming the being obliged to send Deputies to Parliament as an Honour conserred upon them, that the Generality considered it as a sore Burden, from which they wished most heartily to be released. So little had the Idea of unalienable Rights prevailed in those Days! Nay, several Boroughs, after having once obeyed the Sheriff’s Precept, desisted from making Returns for a long Time afterwards, till they were compelled to do it by the 5th of Richard II. Stat. 2d. C. 4. [The Clause respecting the Returns made, or to be made by the Sheriffs, is so much in Point to the Case here before us, that it would be almost unpardonable to omit it, viz. “And if any Sheriff of the Realm be from henceforth negligent in making his Returns of Writs of the Parliament; or that he leave out of the said Returns any Cities or Boroughs, which be bound, and of old Time were wont to come to the Parliament, he shall be amerced, &c.” Be it likewise remembered, that there are Instances of some Boroughs being summoned, and of appearing at first, which nevertheless got themselves released afterwards; which Releases or Exemptions remain valid to this Day; by what Authority, or on what Ground this was done after passing the above Act of Compulsion, is not my Business to enquire. Nay more, when the two famous Acts were made in the Reign of Edward III. for requiring that Parliaments should be held once a Year, or more often, if need be, they [the Boroughs] shewed plainly by their Actions, what were their Sentiments concerning this Privilege; for, according to the Account given in the Appendix just mentioned, not one of those, which had omitted or neglected to make Returns during the two former Reigns, embraced the Opportunity of recovering their unalienable Rights, by complying with the Laws lately made for annual Parliaments;—On the contrary, and—(what is still more extraordinary) some other Boroughs, which had not omitted to make Returns before, chose to be refractory or negligent on the Occasion, till they were compelled.—So that, it is evident, that the Laws, which required even annual Meetings of Parliaments [without saying a Word about annual Elections of Citizens or Burgesses to be present at such parliamentary Meetings] were unpopular at the Time to one Part of the Community, tho’ perhaps very popular to another. They were generally unpopular to Tradesmen, Shopkeepers, and Artificers, because such frequent Meetings put their Corporations to an Expence which many of them could ill bear, and because also they detained some of the principal Inhabitants, chosen to represent the rest, from their proper Trades and Business,—by obliging them to attend on Assemblies, where they had but small Influence, and less Respect. For not only the great Barons beheld them with Disdain, and treated them with Contempt, but also the * Representatives of the lesser Barons, (the Knights of Shires) looked on them as an Order of Men much inferior to themselves. Hence it came to pass, that the Deputies from Towns and Boroughs were very often in great Haste to depart, and to retire to their respective Homes, whilst the Barons and Knights of Shires wished to stay longer, and complete the Schemes they had in Contemplation. The Fact was, to speak the Truth at once, the landed Interest, as it was then erroneously understood, was supposed to be directly opposite to the trading Interest of the Kingdom. For the personal and immediate Interest of the Barons, great and small, was to preserve their own Importance in the State, and their Authority and Jurisdiction over their Vassals and Dependents, in Contradistinction to the regal Power. Whereas Shopkeepers, Traders, and Mechanics, could have had no such Views. Therefore the former were always desirous of having frequent Meetings of Parliament, in order to consult and associate together against the Crown, whom they regarded as their common Enemy: [Magna Charta itself was owing to this very Principle.] Whereas the latter, the Corporate-Towns and Boroughs, which had Reason to esteem the Crown more their Protector than their Oppressor, had no such Motives, either offensive or defensive, for associating together. In one Word, the Crown, and the Law-Courts of the Crown, were then the only Security and Defence which trading Corporations could have had against the Power and Insults of the feudal Baronage.—The great Barons having attempted several Times to bring almost all Causes into their own Courts, to be judged by themselves, or by Deputies, Stewards, Bailiffs, &c. &c.
To confirm what I have here advanced, I will relate two very curious Facts. The first is, that though the Towns and Boroughs had gained their Liberty, and were no longer in a State of Slavery either to King or Barons,—yet they still retained such a Jealousy of the encroaching Nature of the feudal System, and such a Dread of being brought again into Bondage, that many of them caused every new Member of their Body, when he took up his Freedom, to promise upon Oath, that he would not take one who was bound in Blood, to be is Apprentice. This Clause is continued in the Oath of a Freeman of Bristol to this Day, and I think was formerly in that of London, and of several other Places: Though most undoubtedly not one in a Thousand know its antient Meaning, or to what it referred. The Case, of which they are at present so happily ignorant, I will endeavour to explain, because it throws great Light on the Subject now before us. When the trading Towns, and especially the Metropolis, were grown into such Importance as to afford some Sort of Shelter to those miserable and distressed Objects, who were in a State of Slavery, many of them [Male and Female, Villains and Neifs] fled to these Places, as to an Asylum, to be protected from the Tyranny of their cruel Masters. When there, they entered into the Service of such Persons as would employ them, in order to get a Livelihood. And it is very probable that they offered to work or serve on lower Terms than others. In short, the Towns found their Account in this Affair; and therefore espoused the Cause of such Refugees, as far as they dared,—by granting them the Privileges of defending themselves in the Law Courts of these local Jurisdictions.—In these Courts they alledged, when claimed by their Lords, that they were the Servants or Apprentices of such, or such Citizens, or Burgesses, and therefore owed no Submission or Subjection to any others. This Plea, it must be owned, was not strictly justifiable, being little better than a prevaricatory Subtersuge, However, as the Tradesmen were willing that these Fugitives should urge it against their former Masters,—the Barons and great Men got two remarkable Laws to pass, which enabled them to pursue their Slaves, and to seize and take them, as well within the Liberties of Cities and Towns, as without. The first was made the 25th of Edward III. Stat. 4. Chap. 18. and the other, which is still more express, the 9th of Richard II. Chap. 2. The Words of this latter Act are the following,
“Whereas divers Villains and Neiffs, as well of great Lords, as of other People, as well spiritual as temporal, do fly within Cities, Towns, and Places enfranchised, as the City of London, and other like, and seign divers Suits against their Lords, to the Intent to make them free by the Answer of their Lords: It is accorded and assented, that the Lords, nor other, shall not be forebarred of their Villains, because of their Answer in the Law.” Had the Cities and Towns persisted in their Designs of protecting the Fugitives, it is easy to conceive, that this Affair would have embroiled them with every great Lord, and with the whole landed Interest of the Kingdom: For which Conflict they were, by no Means, a Match at that Time of Day. Therefore they gave up the Cause with a good Grace; for they passed a Bye-Law, obliging all the Members of their respective Fraternities, not to harbour or employ any of these poor Runaways for the future;—at least not to employ them in such a Manner, as would give them any Colour or Pretence to demand the Franchise of the Place: For every Man at the Admission to his Freedom, was to swear, that he would take no Person as an Apprentice, who was bound in Blood. By this Regulation, they not only avoided numberless Quarrels with the Lords of Manors, but also preserved the Credit of their own Body, by resusing to mix or incorporate with Persons of a base Condition, or Slaves by Birth.
2dly.The other Anecdote is, that the corporate Towns required every Member at his Admission, to bind himself by an Oath, that he would wear no Man’s Livery, except Mr. Mayor’s, or the Master of his Craft. This is another Regulation, which, if understood according to the modern Practice of wearing Liveries, must appear a most ridiculous Thing, and a very improper Covenant. Nevertheless, at the Time it was made, I will be bold to say, it was a wise, and even a necessary Caution.—But as the right Explanation of this Prohibition will fall more properly under the next Head, I shall defer it for the present, ’till we shall come to an Opportunity of ascertaining its true and original Signification.
Before I conclude this Article, perhaps it may not be amiss to mention a Circumstance or two, which, though not immediately connected with the Subject now before us, yet will give us such a Picture of the Manners and Modes of thinking and acting in antient Times, as may serve to correct many Mistakes, which modern Politicians are too apt to commit, either through Inattention, or through Ignorance,—if not from Motives of a much worse Nature.
It has been observed already, That the Baronage, or Landed Interest, during the feudal System looked down on the Trading with sovereign Contempt, hardly allowing them the Rank of Fellow Subjects,—and very unwilling to suppose, that they were entitled to equal Law and Liberty with themselves. Now, would not any one have inferred from this Treatment that the several Cities and Boroughs of the Kingdom would on their Parts endeavour to form themselves into some Kind of League or Union, like the Hanseatic Cities of Germany, in order to repel the Insults, and defend themselves against the Oppressions of so formidable a Body? Certainly this is a natural Supposition:—Yet the Fact was far otherwise. For the Londoners were continually attempting to engross all the little Trade of the Kingdom to themselves; treating the other trading Corporations with as little Ceremony as if they had been their Slaves and Vassals: And these latter, instead of being the more firmly united, carried on a Kind of Hostility against each other. It was thought lawful at that Time for the Inhabitants of one Town to make Reprisals on those of another, like the Subjects of different States, when at open War. Thus, for Example, if a Tradesman of Glocester was a Debtor to, or had committed an Offence against a Tradesman of Bristol, the Bristolian thought himself warranted to seize on any other Burgess of Glocester by Way of Reprisal, and to oblige him to make Reparation for the Offence or Debt of his Brother-Burgess. [See Cokes Institute, Page 204, and Statutes at large, 27th Edward III. Stat. 2, C. 17.] Now, can any Thing be more repugnant to Order and Government, not to mention Honesty, Industry, and commercial Intercourse than such Proccedings? Yet this was the Case: For, as the Barons were continually plaguing one another with their Robberies and Inroads, their Quarrels, and private Wars; [as I shall fully shew under the next Head] so these tiny Heroes chose to mimic then Betters, by being as mischievous as they could.—In short, the Spirit of Envy and Jealousy was so predominant in these trading Bodies, that they could hardly agree about any Thing, except in their mortal Aversion to Foreigners: In that they were unanimous; as most of their Successors continue to be to this Day. Indeed they also considered their Fellow-Subjects in the Light of Strangers, stiling them such in all their public Acts;—because forsooth they were not of the same Guild, Fraternity, or Corporation with themselves: And the above Quotation shews in what Manner they treated them. But though they used their Fellow-Subjects ill, yet their Conduct was mild and gracious, in Comparison to the Fury with which they persecuted outlandish Strangers: For in respect to them, their Antipathy knew no Bounds. Edward III. was a sagacious Prince, as well as a great Warrior. His Laws for the Extention of Commerce, and Increase of Manufactures, indicate a liberal Mind, much more enlightened than could be expected in those Times of general Darkness. In the 11th Year of his Reign [Anno. 1337] he caused four Statutes to be made for the Encouragement of the Woollen Manufacture, then in its Infancy among the English. In one of which Laws, Foreigners are invited to come in by the Offer of large Privileges. “It is accorded, that all the Cloth-Workers of strange Lands, of whatsoever Country they be, which will come into England, Ireland, Wales, and Scotland, within the King’s Power, shall come safely and surely, and shall be in the King’s Protection and safe Conduct, to dwell in the same Lands, chusing where they will. And to the Intent the said Cloth-Workers shall have the greater Will to come, and dwell here, our Sovereign Lord the King will grant them Franchises as many, and such as may suffice them.” Yet, notwithstanding this Protection of an express Law, Complaint was made against the Mayor and Bailiffs of Bristol, that they greatly obstructed the Execution of it, by extorting Money from the Undertakers under various Pretences, and by molesting them in different Ways;—the King therefore required them by a special Mandamus, under heavy Penalties, to desist from such Practices for the future. This was about two Years after passing the above excellent Law. [See Rymer’s Fæd. Vol. v. Page 137.] And this, one would have thought, would have been Warning sufficient to the rest of the trading Corporations to desist from such scandalous Practices; but it was not.—For about five Years afterwards, and seven Years from the first passing of the Law, the Freemen of London were so far from being intimidated by the Reprimand sent to Bristol, that they became so much the more outrageous, threatning, that they would knock these Foreigners on the Head, and break their Bones, [de vita, & membris minitantur] if they should dare to exercise their Trades of Cloth-making within the Liberties of the City of London. On which Account the royal Authority was obliged to interpose, by issuing another Mandamus more strict, and penal than the former. [Rymer’s Fæd. Vol. v. Page 429.]
Now from the Behaviour of Tradesmen on this, and similar Occasions, and particularly from the Conduct of the City of London, which always takes the Lead, and which generally obstructs the most public national Good, through narrow monopolizing Views,—let the Reader judge, whether the modern Doctrines of unalienable Rights,—of Self Government,—Self Legislation, &c. &c. &c. are fit Doctrines to be inculcated into large Mobs, and the Mass of Mankind?—And whether the Bulk of ignorant, short-sighted People, Men. Women, and Children, [would not do, both themselves and others, much greater Harm than Good, were they to be left at Liberty to put such Plans into Execution according to their Wishes and Caprices?—But alas! those who know better, and yet inculcate these pernicious Doctrines, have the more to answer for.
GENTLEMEN. The Third, or highest Class.
It has been observed already, that amongst all barbarous Nations, and before Civilization has been sufficiently introduced, there are never found more than three Classes of Men in Civil Life, the Slaves,—Mechanics,—and Warriors. These latter are of Course the Men of Consequence, or the Gentlemen of that Country. For they hold the others under great Subjection, and therefore esteem themselves, and are esteemed, as Persons of a superior Rank.
Now, whether our Saxon Ancestors were utter Strangers to the feudal System, or whether they were in Possession of the Substance, without the Terms of Art belonging to it (which is the more probable Opinion) is a Matter of no Consequence in the present Case. For it is an undoubted Fact, that the Chiestains of the several Tribes of Angles, Jutes, Saxons, &c. &c. seized on vast Tracts of Country, according as they drove the antient Inhabitants before them; and that they afterwards divided these Districts into smaller Shares among their numerous Relations, Followers, and Dependents. It is also equally certain, that Lands, and Jurisdiction originally went together. So that the same Person, who was the Landlord, or the Lord of the Land,—was also the Judge over the Inhabitants of that Land in Times of Peace,—and their Leader in Times of War. For these three Offices, now so separate, were in Times of great Simplicity, and before the Refinement of Government, hardly supposed to be capable of a Separation. The only Distinction necessary to be observed in those Times, was the different Nature of the Tenure, whether it was base, or noble,—servile or military,—by the Soc, or by the Sword. If the Lands in Question were held by antient Soccage, that is, by a servile or ignoble Tenure, the Occupiers were Slaves, and bound to work for their Masters:—But, if by the Service of the Sword, that is, by a military, a frank, or noble Tenure, the Occupiers were the Frankmen of the Realm. Liberi Homines Regni, were Freeholders, Warriors, Gentlemen; whose Duty it was to fight for their Chief. And these Distinctions were thought to be so important, as not only to influence all the Rules of Conduct and Decorum, and to settle the Claims of Rank and Precedency in the Departments of Civil Life;—but also to deserve a Place in the fundamental Constitutions of the Realm. For even in Magna Charta it is enacted, in the 7th Clause, that Heirs shall be married without Disparagement: which Words were understood then to means that all Minors, Male or Female, who were the Wards of the Crown, or the Wards of any great Baron, should not be married to Persons below their Rank. Money was not then the greatest Object: For the greatest Wealth or Fortune with ignoble Birth, was a Degradation; and therefore a Breach of Magna-Charta.—Whereas, to have married the Ward to a Beggar of high Blood, was no legal Objection. In a subsequent Statute, made the 20th of Henry III. C. 6. the Word Disparagement is more particularly explained: It is there made to signify, the causing of a Ward to be married either to a Villain, or to a Burgess: For either of those would be a Disparagement. The same Rules prevail throughout almost every Part of Europe to this Day. In Germany in particular (from whence our Ancestors originally came) if a poor Count of the Empire, not worth a Shilling, should marry a rich Burgher’s Daughter of Amsterdam, worth Half a Million sterling, the Children cannot inherit the Family-Titles, but must be reputed as no other than the Bastards of the Empire, though born in lawful Wedlock. And if a Lady of this high German Quality, tho without a Penny of Fortune, should condescend to give her Hand in Marriage to a rich Merchant or Mechanic, the Friends and Relations of this illustrious Spouse, may prosecute the lowborn, presumptuous Husband, even to Death, if they please, for a Rape,—not indeed of Violence, but of Seduction.—[And this latter Law likewise takes Place in France, with very little Alteration.] However, we find that here in England, the Case was somewhat different even in the most antient Times. For long before the Institution of a Lord Mayor, the principal Citizens of London were stiled Barons, by Way of Eminence and Distinction; so that they were plainly distinguished from common Burgesses; and therefore we may naturally conclude, that an Intermarriage with any of these London Barons was no legal Disparagement. But be that as it may, one Thing is certain, that the Exception here mentioned is so far from invalidating the Observation respecting Mechanics and Tradesmen, that it strongly confirms it.
We have now seen what it was to be a Gentleman, and what was his original Occupation, let him be rich, or poor, a Prince, or a Beggar, in regard to outward Circumstances. His Trade was Fighting: And it would have been a Blot in his Eschutcheon to have taken to any other Employment. But the Misfortune was, That Fighting was not a constant Trade: For there are so many Intervals in it, that a Man who has nothing else to do, and is fit for nothing else, is at a Loss how to employ his Time. Besides, the Number of these Heroes greatly encreased during the Continuance of a long Peace, at the same Time that the Means of subsisting them on their own frank Estates were as much lessened by their Multiplication.—Not to mention, that the younger Brothers of prolific Families, and the Decay of others, through private bad Management, public Misfortunes, and various other Causes, added to the Distresses of this Order of Men, without pointing out any effectual Means for their Relief. In short, till the Pride of Family, and the Notions of Birth and Blood can be, in some Degree, got over, perhaps a more miserable Being cannot exist, than a poor Gentleman,—without any visible honest Means of mending his Condition.
I mentioned under a former Article, [Page 311] that Peter the Hermit found out Employment for great Numbers of those idle free People, by sending them to the Holy Land, to be knocked on the Head. But still, those who stayed at home, on various Accounts,—and those who were born between one Crusade and the other, also the rising Generation, after the Crusades were out of Fashion:—All these had nothing to do, unless they would employ themselves in doing Mischief. And a very little Insight into human Nature may enable us to judge, that Mischief of some Sort or other would become their principal Imployment.—The only Question therefore is, What Sort or Kind it would probably be?—
All the superior Barons, and many of the smaller, had great Royalties, and extensive Jurisdictions, besides Possessions intermixed with each other, and rival Claims. These Things naturally occasioned intestine Quarrels and Disputes; so that when the Grandees of the Realm were not leagued together against their Sovereigns, they were hardly ever free from Broils and Contentions with each other, which were sure to end in Blood. Here then was created a Sort of Necessity of imploying many of these Gentlemen Bravos;—and that too in their own Way. For if any one of the great Barons should entertain a Band of such Desperadoes in his Castles, or about his Person,—his Neighbours, or his Rivals were obliged to do the like, merely from a Principle of Self-Defence or Self-Preservation. So that every Castle, of which there were then such Multitudes, and every great House, especially if trenched or moated round, became of Course little better than a Den of Thieves and Robbers. A modern English Reader may possibly be surprised to hear, that in Times of profound public Peace, such strange Proceedings should be permitted; but strange as they were, they were not only permitted, but countenanced in every Part of Europe, in spite of the sovereign Power, according to the Ideas of those Times. Nay, they were dignified by the Name of Private Wars. Those who wish to see a true and faithful, and at the same Time an elegant, Account of these barbarous Transactions, may consult the preliminary Discourses of Dr. Robertson’s instructive History of Charles V.—But as my Business is confined to England, I shall chuse to borrow my Account from the very Words of English Acts of Parliament, rather than indulge myself in the Pleasure of transcribing Passages from an Author, whom I will dare to pronounce excellent, though a Scotchman.
In the Reigns of Henry III. Edward I. II. III. and IV. Richard II. and Henry IV. V. VI. and VII. many Laws were expressly made either to prevent or suppress such Outrages.—the Opprobrium of Common Sense, as well as the Destruction of all Order and good Government. [And besides these, many other Statutes were enacted, which occasionally referred to the same Affair.] One of the most antient, tho’ not the oldest of all, exhibits such a curious Picture of those blessed Times of Old England, which some of our modern Patriots wish us to prefer to our own, that I shall produce it at full length, and then quote some Passages out of other Statutes, as Comments upon it.
“A Desinition of Conspirators made Anno 23. Edward I. Stat. 2. Anno Dom. 1304. [Pickering’sEdition.]
Who beConspirators,and who beChampertors.
“Conspirators be they that do confeder or bind themselves by Oath, Covenant, or other Alliance, that every of them shall aid and bear the other falsly and maliciously to indite, or falsly to move, or maintain Pleas: And also such as cause Children within Age to appeal [accuse] Men of Felony, whereby they are imprisoned and sore grieved; and such as retain Men in the Country [in the Country is not in the original Norman-French] with Liveries or Fees for to maintain their malicious Enterprises; and this extendeth as well to the Takers, as the Givers. And Stewards and Bailiffs of great Lords, who, by their Seignory, Office, or Power, undertake to bear or maintain Quarrels, Pleas, or Debates that concern other Parties, than such as touch the Estate of their Lords, or themselves. This Ordinance and final Desinition of Conspirators was made and accorded by the King and his Council in his Parliament, the 33d Year of his Reign. And it was further ordained, that Justices assigned to the hearing and determining of Felonies and Trespasses, should have the Transcript hereof.
“Champertors be they that move Pleas and Suits, or cause to be moved either by their own Procurement, or by others, and sue them at their own proper Costs, for to have Part of the Land in Variance, or Part of the Gains.”
It is a Pity, that the very learned and ingenious Commentator on the more ancient Statutes, had not made his Observations upon this, which so much wanted the Assistance of his able Hand; being wrote, (short as it is) in three different Languages, the Beginning in old Norman French, the middle Parts in Law-Latin, and the Conclusion in English; and not without some Difficulties in each. To supply this Defect to the best of my Power, and to make Use of his Authority as far as I can, I would observe in the first Place, that though the poor Gentleman of every Country looked upon Trade with Horror and Disdain;—yet it was no Disparagement to him to serve a rich Brother-Gentleman in the meanest Capacity, especially if he was a great Baron. In that Case it was no Disgrace to wear a Livery, and to serve at Table,—and even to make Beds in the Castles, or great Men’s Houses, and to sweep the Rooms, if they were to be swept at all. The same Customs still prevail in Poland; which is a Country that exhibits a true Picture of what Old England was.—N. B. The Croisade never got much Footing in Poland; therefore the Polish Nobles still remain in Statu quo.
Respecting the giving, taking, and wearing of Liveries and Hats [Chaperons, Kind of Caps or Bonnets; Hats being not then in Use] also Badges, and of using Watch-Words, Signs, or Signals;—these Practices were grown to such an enormous Height, that Multitudes of Statutes were made to prevent, or punish them. For there was hardly a Session of Parliament from the Time of Henry III. to Henry VIII. but Laws were enacted for restraining the Feuds, Robberies, and Oppressions, of the Barons and their Dependants, on the one Side,—and to moderate and check the Excesses and Extortions of the royal Purveyors on the other:—These being the two capital Evils then felt. Respecting the Tyranny of the antient Baronage (the only Evil I am now considering) even Squires as well as others were not ashamed to wear the Liveries of such Leaders, and to glory in every Badge of Distinction, whereby they might be known to be retained as the Bullies of such or such great Men, and to engage in their Quarrels, just or unjust, right or wrong. In fact, the Old English. Hospitality so much boasted of, and so little understood, was for the most Part dedicated to the very Purposes of retaining and feeding, in the great Halls, Numbers of these unhappy People, to be the general Pests of Society, and a Torment to each other. The Histories of those Times, together with the Statutes of the Realm inform us, That they associated, (or, as they called it, confederated together) in great Bodies, parading on Horse-back in Fairs and Markets, and clad in Armour, with Lances or Javelins in their Hands, to the great Terror of all peaceable Subjects;—Nay, that they attended their Lords to Parliament, equipped in the same Military Dress;—and even dared sometimes to present themselves before the Judges of Assize, and to enter the Courts of Justice in a hostile Manner, whilst their Principals sat with the Judges on the Bench, intimidating the Witnesses, and influencing the Juries by Looks and Nods, Signs and Signals. And as one Species of Iniquity generally begets another, it was no unusual Thing with the weaker Party [weaker I mean, in these Kinds of Arguments] to apply to the King in Council for a Commission of Inquiry, Whether the Prosecutor commenced the Suit out of a sincere Desire of obtaining Justice? or from Motives of Revenge, Avarice, or Oppression?* And as the Appellant was allowed to name his own Commissioners, it is no difficult Matter to guess, on which Side these impartial Commissioners would determine. This Method of proceeding was therefore considered as a Kind of previous Question; so that the Logic of the Times was,
But amongst the strangest of these Doings, perhaps nothing would more surprise a modern Reader, than to be told, That Gentlemen of the long Robe made a Part of the Retinue of the great Men of those Days; that they lived in their Houses or Castles, and wore their Liveries. Yet this was the Fact. Their Employment, besides that of being Stewards of the Courts, and keeping the Records, and Title Deeds of the Baron, [who, generally speaking, could himself neither write, nor read] was to find out Flaws in the Titles and Conveyances of some rival Baron,—or (what answered the same End) in the Titles or Claims of some of his Adherents, Partizans, or Dependents. The next Step was to suborn Witnesses, of which, it seems, there was a very great Plenty to be had on all Occasions, and then to undertake the Cause by sharing in the legal Plunder, if they succeeded;—or else by making an absolute Purchase thereof, and taking the Chance of the Suit to themselves.
This accounts for the many severe Prohibitions in the old Statutes against such horrid Abuses of the Law, especially by the * Professors of it. One of the most remarkable of these Prohibitions has never been translated from the Norman-French. It is the 13th of Richard II. Stat. 3. I will endeavour to give the general Sense of one Passage in it, without attempting to explain all the Law-Terms, or making myself answerable for the Justness of the Translation in every technical Part.
“The King to the Sheriff of Kent, Health.” [The like Writ was directed to all the Sheriffs in England.]
“Whereas by the Laws and Customs of our Realm, which we are bound to observe, by our Coronation Oath, all our Liege Subjects within the said Realm, as well poor as rich, ought freely to sue, defend, receive, and obtain Justice and Right, and the Accomplishment and Execution of the same, in all our Courts, and elsewhere, without being disturbed, or oppressed by Maintenance, [see Jacob’s Law-Dictionary for the Explanation of all these Terms] Menace, or by any other Manner;—and whereas also in many of our Parliaments held in Times past, and particularly in the Parliaments lately held at Canterbury and Westminster, grievous Complaints, and great Lamentations have been made, as well by the Lords Spiritual and Temporal, as also by our Commons of our said Realm, of the great and outrageous Oppressions and Maintenance committed, to the Damage of us, and our People, in different Parts of the said Realm, by divers Maintainers, Menors, Baratters, Procurers, and Embracers of Quarrels and Enquests, in the perpetrating of which, many are the more emboldened and hardened;—☞ because they are of the Retinue of Lords, and others of our said Realm, by [Means of] Fees, Robes, and other Liveries, stiled the Liveries of Company [Association.] Therefore We ordain and enjoin by the Advice of our great Council (the Parliament) that no Prelate, nor any other of Holy Church, nor Batchelor, nor Squire, nor any other of inferior Rank shall give the Livery, called the Livery of Association: And that no Duke, Earl, Baron, or Banneret shall give such Livery of Association to a Knight or ’Squire,—unless he be retained for Life, as well in Peace as War, by Indenture, without Fraud, or evil Engine:—Or that he be an Officer in his Family, and that he resides in his House:—Neither shall any Duke, Earl, Baron. &c. grant any Livery (whatever) to a Valet, or Yeoman, an Archer, or to any Person of a Degree lower than a Squire, unless he be his menial Servant, or Domestic, making a Part of his * Household.
Thus stood the Case with the higher Ranks in Society: And as Vice and Wickedness are generally contagious, in Process of Time, the very Cities and Boroughs began to ape their Betters in doing Mischief. They too had their Associations, their Liveries, and Retainers. Therefore a Law was made to restrain them,—at least so far as to prevent them from biring themselves out to be the Bullies and Retainers of the Great Barons. They might indeed associate, and parade in Armour and Military Array among themselves, as the proper Garrisons of their own Franchises, but were to proceed no farther (see particularly 7th of Henry IV. C. 14.] Moreover Care was taken by the Magistrates of several of these incorporated Places, and particularly by those of Bristol, that every Person, when he came to take up his Freedom, should engage by an Oath, that he would wear no Man’s Livery (the Livery of Association, Maintenance, or Retaining) except Mr. Mayor’s, or the Master’s of his Company.
But perhaps some may say, “During all this while, there is not a Word about the Complaint and Grievance of the present Day, Bribery and Corruption.” To this I answer, that respecting the Prevalence of Corruption, there surely has been a great deal said,—and also proved: Respecting Bribery there has not. And the Reason is obvious. The most corrupt could not bribe, unless they had the Means;—and even then, they would not, unless there was some End to answer. But, generally speaking, neither of these was the Case in those Times. Indeed, if any Bribery was at all introduced, it is most natural to suppose, that it was among the Cities and Boroughs:—Among them, I say, not to obtain the Election, as at present,—but to avoid being elected. For when none but resident Citizens and Burgesses were eligible by Law,—also when almost every one of these Tradesmen or Mechanics deemed the Office of a Deputy to Parliament a sore Burden, not attended with a proportionable Degree of Honour or Profit to counterbalance it, the likeliest Thing to have happened in such a Case, was for the Persons in Danger of being elected, to make private Applications to the Electors, to be set aside;—or if elected, to the Sheriffs, or Returning Officers to be excused, or omitted, and others to be sent in their Room. Moreover Application was made sometimes to the Crown, for Letters Patent to be exempted [See 29th Henry VI. C. 3.] Abuses of this Nature, we find, did frequently happen: For there are many severe Penalties in the old Statutes against the Partiality of Sheriffs, and Returning Officers for excusing, as well as against the Patents of Exemption granted by the Crown.
The Knights of Shires, the Representatives of Freeholders, or of the lesser Barons, were on a much more honourable Footing. Their very Institution required them to be of the Order of Knighthood, and consequently to be girt with Swords as Milites, or military Men;—by which Circumstance, as well as by their Rank, they were greatly elevated above the Representatives of Tradesmen and Mechanics. Not to mention that their Pay or Wages in some Counties was a considerable Object. Moreover, as they were to be of the honourable Order of Knighthood;—this required a certain Qualification in Land, to be held, not by a base, but by a noble Tenure [See particularly the Statute for Knights, made 1st Edward II. Stat. 1.] which must have amounted, as far as I perceive by comparing different Accounts together, to an Income of about 400l. a Year of modern Rent.—Whereas no such Qualification was ever required from the Representatives of Citizens, and Burgesses. They were eligible, though not worth a Groat. Nay, in Process of Time, when the Requisition of actual Knighthood was a good deal dispensed with, as appears by the 23d of Henry VI. C. 15.—yet still it was thought necessary, that Candidates for Counties should be, if not respectable Knights, at least respectable Squires, and Gentlemen by their Nativity, who were able to take upon them the Order of Knighthood, whenever required so to do: And it was added, that no * Person of the Degree of a Vadlet, [a Varlet, or Serving-Man] much less a Plebeian, or Mechanic, should be permitted to be the Knight of a Shire, or to represent the lesser Barons.
Now taking all these Circumstances together, the Elections of the Representatives of the lesser Barons must have become a most turbulent and bloody Affair, in which, Might would be sure to overcome Right; and the strongest Sword, as in Poland, be the Returning Officer;—or else such a Number of the poorest, and most dependent of these Gentleman-born Electors must be excluded, as would render Elections a reasonable and practicable System. Therefore, as the Evils of Associations, Liveries, and Maintenance were risen to such an alarming Height, as to become more and more intolerable, the Legislature chose the latter; that is, they wisely resolved to strike at the Root at once, by excluding all those diminutive Gentlemen-Barons from voting, who had little or nothing to lose in any Contest, but might have something to get by stirring up Riots and Batteries in every public Meeting, and breaking the Peace of Society. See the 8th of H. VI. C. 7.
But let the Preamble of the Statute speak for itself.
Item “Whereas the Elections of Knights of Shires to come to the Parliament of our Lord the King in many Counties [most Countries] of the Realm of England, have now of late been made by a very great and excessive Number of People dwelling within the said Counties, of the which most Part was of People of small Substance, and of no Value, [no Property] whereof every of them pretended to have a Voice equivalent, as to such Elections to be made, with the most worthy Knights and Squires (that is, Knights and Squires of the greatest Property, les plus Valants) dwelling within the same Counties, whereby Manslaughters, (Murders) Riots, Batteries, and Divisions among the Gentlemen, and other People of the same Counties, shall very probably rise, and be, unless convenient and due Remedy be provided in this Behalf:—Our Lord the King, considering the Premises, hath provided and ordained by the Authority of this Parliament, that the Knights of Shires to be chosen within the Realm of England to come to the Parliaments hereafter to be holden, shall be elected in each County by People abiding and residing therein, of whom each shall have a Frank Tenement of the Value of 40s. a Year at least, (or over and above) Reprisals, or Out-goings.”
These are the Words of the Statute, rendered as literally, as perhaps they well can be, from one Language to another. The Things which deserve our more attentive Regard, are principally these:
1st.The Nature of the Tenure itself: It was to be a frank Tenement; that is, such as was fit for a Frank, a Liber Homo, a Freeman of the Realm, a Gentleman, or a lesser Baron to hold, without Disparagement.—So that the Suit and Service belonging to it (Words which imply, to follow, and to serve) were to be of the noble Kind, and not base or servile; therefore would not have degraded him into the State and Condition of a Villain, or a Slave, by performing them.
2dly.The Value of such a Frank Tenement, is another Consideration.—It was to be 40s. at least, above all Out-goings. Here therefore be it remembered, that originally, eleven Ounces of Silver of Troy-Weight (with a Fraction) together with a certain Quantity of Copper sufficient to harden it, were cut into 20s. now into 62s.—So that a Pound Sterling, and a Pound Troy were then of equal Weight. But in Process of Time, such very dishonest Arts were practised at the Mints, that the just Proportion, between Weight and Currency, could not easily be ascertained. When this Law was made (Anno 1429) I think the Weight of One Shilling was equal, or nearly equal to the Weight of 2s. 6d. of modern Coin: So that 40s. at that Juncture must have been nearly as heavy as 5l. in Silver is now: And if to this you take into Consideration the Difference between past and present Times, respecting bot’ the Rents of Lands, and the Prices of Provisions, surely, it must be allowed, That a Mass of Silver of that Weight was equal to at at least 40l. Value of present Income.—Besides, the Framers of this Law seem to have had in their Eye a certain Proportion proper to be observed between the Gentlemen Electors, and the Knights to be elected. The Qualifications for a Candidate to be elected, (that is, for a respectable Knight girt with a sword, to represent the lesser Barons) was, that he was to be in Possession of a Freehold Estate of at least 20l. a Year in Tale (See the Statute for Knights, 1st of Edward II. Stat. 1.) And probably about 50l. in Weight of present Silver; which we may well suppose was then equal to 400l. a Year of modern Rent. So that the Proportion between the respective Qualifications of the Electors and the Elected, was intended to be as one to ten, or nearly thereabouts: That is, as 40l. to 400l. a Year.
3dly.The Evils proposed to be prevented by these Regulations, are a farther Proof of the Use and Advantage of this Law. The Preamble assures us, that it was made to prevent Murders, Riots, Batteries, and Divisions among Gentlemen, &c. assembled to elect the Knights of Counties, or the Representatives of the lesser Barons residing in such Counties. Motives good, and very commendable! But how could these Evils have been restrained at that Juncture by any other Method, than by that which this Act prescribes? Liveries and Associations every where prevailed; Maintainers and Retainers were the Appellations, by which all the Barons might have been known and described from the highest to the lowest, either as Givers, or Takers. And the whole Class of them had a Right to assemble themselves together, and to give their Votes for Knights of Shires, ’till this Law thinned their Numbers: For none were excluded but Villains, Copy-holders, Burgesses, and Mechanics. In short, the Number of Pauper-Gentlemen-Barons was become so public a Nuisance, continually encreasing, that it called aloud for speedy Reformation. Nay, the very Laws, which both preceded, and followed the present Act in the same Statute [for it is a capitular Statute, composed of various Articles] I say the very Laws both preceding, and subsequent thereto, plainly point out those Evils then intended to be redressed. In the 4th Chapter we read, That notwithstanding the many Laws which had been made (I might say Multitudes of Laws, during the Space of upwards of 300 Years) to prevent the giving of Liveries, forming Conspiracies, or Associations, maintaining of Quarrels, riding in Armour, and the like;—the Evils still remained uncorrected, and were likely to encrease;—therefore it is ordained, “that if any Person after the Feast of Christmas (1429) shall buy or wear for his Clothing any Cloths, or Hats called Liveries, of the Sort, or Suit of any Lord, Lady, Knight, Esq; or other Person, for to have Supportation, Succours, or Maintenance, in any Quarrel, or in any other Manner, if he be thereof duly convict by Examination, or otherwise, before by the Statutes declared, he shall incur the Pain before limitted of them that take Liveries of Lords, or other Persons aforesaid, and moreover shall have a whole Years’ Imprisonment without being let to Bail or Mainprise, for their Falsity, and subtil Imagination in this Part.”
This was a preceding Law;—a subsequent one (Chap. 9.) in the same Statute was to this Effect, That whereas the “Statutes and Ordinances made, and not repealed, of them that make Entries with strong Hand into Lands, Tenements, or other Possessions whatsoever, and them hold with Force;—likewise of them that make Insurrections, Riots, Routs, Ridings [Chivaches] or Assemblies in Disturbance of the Peace of the Common-Law, or in Affray of the People, should be holden and fully executed;”—And, after having recited divers others grievous Complaints, it adds also, Whereas it was a common Practice with those who had forced themselves into the Possession of other Men’s Estates, without just Title of Law, to make over such usurped Possessions by Deeds, or Feoffments, ☞ to Lords, and other puissant Persons;—or even to Persons utterly unknown, whereby the legal Recovery of such Estates or Possessions was rendered the more difficult, tedious, and expensive:—Therefore it enacts, That all the former Laws should be reinforced with new Penalties, and new Provisions. One of the new Provisions was, that for the Recovery of the usurped Possessions, the Justices of Affize, or Justices of the Peace, might direct the Sheriff to impannel a Jury of the Vicinage to enquire into the Truth of the Premises: And every Juror thus to be impannelled was to have Lands or Tenements of the clear yearly Value of at least 40s. or about 40l. of modern Rents, the better to support the Character of a creditable Man. But, N. B. the Act is silent as to the Nature of this Tenure, whether it was to be military, or servile: So that a Villain, a Copy-holder, or a Yeoman, if possessed of an Income of 40s. might have been impannelled on such a Jury, yet he could not have voted as one of the lesser Barons at a County Election, because he held by a base, or servile Tenure. But what Need of multiplying Proofs?—Every Instance serves to shew that the Legislature meant at this Juncture to cooperate with, and render effectual, those good Laws, which had been made from Time to Time against Liveries, Badges, Signs, Signals, Conspiracies, Riots, Ridings, Maintenance, &c. &c. &c.;—Evils, which it was impossible to have prevented by any other Means, than by discarding the numerous beggarly Gentlemen-Barons from having any Thing to do with electioneering Contests, and by vesting the Right of voting in Men of Weight and Property. N. B. The modern Doctrine of unalienable and indefeasible Rights had not then been discovered.—This was reserved for the Honour of the present Age! And great Blessings are likely to attend it! some of which we very lately felt.—One Thing more is necessary to be observed, namely, That during all the Times under our present Consideration, that is, about the Space of 400 Years, and upwards, no Mention is made of any Disturbances at Elections in Cities and Boroughs,—the very Places where the greatest Disorders are now committed:—And the Reason is plain: A Candidate even in our Days for a burdensome, disagreeable Office, attended with no Honour, and less Profit, would be sure to have a peaceable Election.
This was beyond Dispute the Case with almost all Cities and Boroughs in antient Times. Nay, what is still more extraordinary, we learn from Prynne, as quoted by Mr. Cartwright [Page 71 of the People’s Barrier, Note at the Bottom] “That the elected Person was compellable to find Manucaptors, or Sureties, sometimes four, five, or six, for his executing the Office of Representative; and, if he failed, his Goods were distrained.” Can a better Proof be ever given of the Truth of the Facts here insisted on, than what may be drawn from this Quotation? Would any Man wish or desire a stronger?
From a View and Retrospect of all these Things, it is natural for every honest Man to think, that had he lived in those corrupt Days, he would have acted a better, a more consistent, and a more honourable Part. A Thought which ought to be cherished in every virtuous Breast. But at the same Time, let the real Patriot reflect, that we have Abuses in our Days, which approach too nearly to those of our Fore-fathers; and therefore cannot be viewed by an honest Man, but with Horror and Indignation.—’Tis true, our modern Champions do not wear Liveries, or stalk about in Caps of Maintenance: Tis true, we have none at present, who parade in Armour, and ride in Harness at Fairs and Markets, tilting against each other, Badge against Badge, and Colour against Colour. But alas! What we have left off in the Field, we have too much adopted in the Senate. For there we have something, which is too much a Kin to the former Badges, Signs, and Signals:—There we find too much of an East-India Livery:—too much of a West-India,—of an American,—of an Opposition,—of a Ministerial Livery:—And alas! a great deal too little of that, which ought to be the only Badge of a British Senator, The Constitutional Livery of his Country.
[* ]Gestae Dei apud Francos was the Title of a famous Treatise recording the Exploits of those holy Murderers, the Croises.
[* ]The Authority I make Use of, on this Occasion, is the Appendix, No. 2, to the Enquiry into the Foundation of the Constitution above mentioned. The Title of the Appendix is, An Accounts of all the Cities, Towns, and Boroughs in England and Wales, which have been ever summoned to send Members to Parliament, with the Date of their first Returns: Extracted chiefly from the three Vols. of Dr. Brown Willis’sNotitia Parliamentaria.—Many Vouchers from Brady and Madox are likewise produced in the Notes annexed.
[* ]The Stile of Parliament as low down as the Reign of Edward III. plainly proves, that there was a Distinction then existing in Point of Dignity and Honour, between the Knights of Shires and the more Citizens and Burgesses chosen to represent their respective trading Societies. Statutes made at Westminster Anno 10. Edward III. Stat. 1. Anno Dom. 1336. Because our Lord the King, Edward III. after the Conquest (which sovereignly desireth the Maintenance of his Peace, and Safeguard of his People) hath perceived as the Complaint of the Prelates, Earls, Lords, Barons,—and also as the shewing of the Knights of the Shires,—and his Commons, &c.—hath ordained and established by the Assent of the said Prelates, Earls, Barons, and other Nobles of his Realm,—and at the Request of the said Knights and Commons, &c. &c.—By the Words of this Preamble, it is evident to a Demonstration, that the Representatives of the lesser Barons [the Freeholders of Counties] were of a superior Rank, and not to be confounded, as they are now, in the same Class with the Representatives of Cities and Boroughs. Before the Admission of Citizens and Burgesses, the greater Barons, and the Deputies from the lesser, sat in the same Room.—But the Deputies from the trading Places never did. In short, the one were Knights Milites, Soldiers, or Gentlemen,—the others more Commoners, that is, common People, Tradesmen, or Mechanics; who were only one Step above the Villains or Slaves.
[* ]Many Examples of this Nature occur in Rymer’s Fæd.
[* ]Perhaps there never existed a greater Contrast between the Proceedings in the Courts of Law in antient Times, and in those of the present. It is really a Matter of Astonishment (and surely ought to be of Thanksgiving) that such pure Streams should flow from so very impure a Fountain.
[* ]As this Translation is not warranted to be technically, but only substantially just, I would here observe once for all, after the judicious Mr. Barrington, that the common Translation, printed in a Column opposite to the Original in the Statute-Books, is miserably defective and incorrect. In a very short Paragraph from a Statute, which I am going to quote, there are two very capital Mistakes in almost as many Lines. The Words of the first are these, Notables Chevilers, et Notables Esquiers, which are rendered notable Knights, and notable Esquires: Whereas the Sense itself, as well as the original Language, requires, that they should be translated, respectable Knights, and respectable Esquires, that is, Men of Eminence and Property in their Country. In this Sense, the Duke de Sully says in his Memoirs, that when he was the Baron de Rhoni he assisted at an Assembly of the Notables of Britanny. The other Sense is perfectly ludicrous. Falstaff was a very notable Knight in that Sense: But surely he was not a respectable one. Apropos; the Humours of Falstaff,extravagant as they may now appear, were the Humours of those Times. He was not the first Knight by a great many, whose Profession it was, to enroll a Band of poor ragged Gentlemen Adventurers, and to rob on the Highways. The other Mistake is a capital Omission, Gentil-hommes del Nativitée, that is, Gentlemen by Birth, or Gentlemen born; whereas the Words del Nativitée is totally left out in the Translation, as if of no Consequence, though the Sense of the Passage, and the Contrast of what follows, lay a particular Stress upon it. Here I will also note a remarkable Change in the Signification of some Words in our Language. We now say, I signed my Name, meaning thereby, I wrote my Name: Whereas it originally signified, when very few People, even of the Grandees, could write a Letter, I made a Mark or Sign [generally the Sign of the Cross] for my Name. Those that were such Scholars, as to be able to write, frequently added, Ego A. B. prepria manu [Editor: illegible word].
[* ]The Vadlet, Varlet, Valet, or Serving-Man mentioned in this Statute of Henry VI. seems to explain the whole Drist and Intention of the Law. Evidently there was some shameful Abuse about that Time committed in the Choice of a Knight of a Shire, which this Statute was intended to correct. And the most probable Account is the following: When some great Baron, such as an Earl of Warwick, of Lancaster, Glocester, Northumberland, Norfolk, &c. &c. had perhaps more than Half a County his own Property, and when the Freeholders of most Part of the rest were in Dependance on him, wearing his Livery on all public Occasions; he might nominate whom he pleased to represent the County. For none dared to oppose him openly, or contest the Election. If therefore the Great Baron had a Favourite Valet to recommend, he must be obeyed, and the favourite be elected. But most undoubtedly the Knights of the other Counties could not be pleased with being classed in such Company. Therefore, they caused a general Law to be made, requiring that for the future the Candidate should be not only a Gentleman born, which it was no uncommon Thing for a Valet to be at that time of Day, but also a respectable Gentleman, a Man of Character and Fortune, even such an one as was able to support the Expence of Knighthood, if required. This effectually disqualified all Vadlets, Varlets, or Valets from being Candidates for Knights of Shires, Some Anecdotes concerning the insolent Behaviour of the great Nobility towards the inferior Gentry in former Times render this Conjecture very probable. And hence also a much better Reason may be assigned for the Anxiety which the House of Commons, have expressed of old, as well as in modern Times against any Peer of the Realm interfering in the Election of their Members, I say a much better Reason than that which is usually given.