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CHAPTER VI: History of the Parliament in the same Period. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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History of the Parliament in the same Period.
Among the important subjects of inquiry, which distinguish the period of English history, from the accession of Edward the first to that of Henry the seventh, our first attention is naturally directed to the changes which affected the legislative power; by the introduction of representatives into parliament; by the division of that assembly into two houses, attended with the appropriation of peculiar powers to each of them; and lastly, by the subsequent regulations, with respect to the right of electing members of the national council. These particulars appear to be of such magnitude, as to deserve a separate examination.
The Introduction of the Representatives of Counties and Boroughs into Parliament.
The parliament of England, from the time of William the Conqueror, was com-<183>posed, as I formerly took notice, of all the immediate vassals of the crown, the only part of the inhabitants that, according to the feudal constitution, could be admitted into the legislative assembly. As the English nobility had accumulated extensive landed property, towards the latter part of the Anglo-Saxon government; as yet larger territories were acquired by many of those Norman barons who settled in England at the time of the conquest; and as the conversion of allodial into feudal estates, under the crown, occasioned no diminution in the possessions of individuals; the original members of parliament must have been, for the most part, men of great power, and in very opulent circumstances. Of this we can have no doubt, when it is considered that, in the reign of William the first, the vassals of the crown did not amount to more than six hundred, and that, exclusive of the royal demesne, the whole land of the kingdom, in property or superiority, was divided among so small a number of persons. To these opulent barons, attendance in parliament was a duty which they were seldom unwilling to perform, as it gave them an opportunity of<184> asserting their privileges, of courting preferment, or of displaying their influence and magnificence. But in a long course of time, the members of that assembly were subjected to great revolutions; their property was frequently dismembered, and split into smaller divisions; their number was thus greatly increased; while the consideration and rank of individuals were proportionably impaired; and many of those who had appeared in eminent stations were reduced to poverty and obscurity. These changes proceeded from the concurrence chiefly of three different causes.
1. During that continual jealousy between the king and the nobles, and that unremitting struggle for power, which arose from the nature of the English constitution, it was the constant aim of the crown, from a consciousness of inferiority in force, to employ every artifice or stratagem for undermining the influence of the aristocracy. But no measure could be more effectual for this purpose, than to divide and dismember the overgrown estates of the nobles; for the same wealth, it is evident, which became formidable in the hands of one man, would be of no significance when<185> scattered among twenty. As the frequent insurrections and disorders, which prevailed in the country, were productive of numberless forfeitures, they afforded the king opportunities of seizing the property of those barons who had become obnoxious to him, and of either annexing it to the crown, or disposing of it at pleasure. In this manner a considerable part of the land in the kingdom, during the course of a century or two, passed through the hands of the sovereign, and, being distributed in such parcels as coincided with his views of policy, gave rise to a multiplicity of petty proprietors, from whose exertions he had no reason to fear much opposition to the progress of his authority.
2. Another circumstance which contributed still more effectually, though perhaps more slowly and gradually, to diminish the estates of the crown-vassals, was the advancement of arts and manufactures.
The irruption of the Gothic nations into the Roman empire; the struggles which took place during their conquest of the different provinces; the subsequent invasions carried on by new swarms of the same people, against the <186> states erected by their predecessors; the violent convulsions which, in a great part of Europe, were thus continued through the course of many centuries, could not fail to destroy all industry, and to extinguish the mechanical as well as the liberal professions. The rude and barbarous manners of the conquerors were, at the same time, communicated to those countries which fell under their dominion, and the fruits of their former culture and civilization being gradually lost, the inhabitants were at length sunk in universal ignorance and barbarism.
When these disorders had risen to a certain pitch, the countries which had so long poured out their inhabitants to disturb the peace of Europe, put a stop to their depredations. The northern hive,1 it has been said, was then exhausted. Those countries, however, were in reality so far from being drained of inhabitants, that they had increased in population. But they had become a little more civilized, and, consequently, had less inclination to roam in quest of distant settlements, or to procure subsistence by the plunder of nations who were now in a better condition to withstand them.<187>
The greater tranquillity which was thence-forward enjoyed in the states that had been formed upon the ruins of the Roman empire, gave the people more leisure and encouragement to introduce regulations for securing property, for preventing mutual injuries, and for promoting their internal prosperity. That original disposition to better their circumstances, implanted by nature in mankind, excited them to prosecute those different employments which procure the comforts of life, and gave rise to various and successive improvements. This progress was more or less accelerated in different countries, according as their situation was more favourable to navigation and commerce; the first attention of every people being usually turned to the arts most essential to subsistence, and, in proportion to the advancement of these, being followed by such as are subservient to conveniency, or to luxury and amusement. The eleventh and twelfth centuries have been marked by historians as presenting, in modern times, the first dawn of knowledge and literature to the western part of Europe; and from this period we begin to trace the rude footsteps<188> of manufactures in Italy, in France, and in the Netherlands.
The communication of the Normans with England, in the reign of Edward the Confessor, which began in 1041, and still more from that of William the Conqueror, contributed to spread, in this island, the improvements which had made a quicker progress upon the continent: the common arts of life were now more and more cultivated; tradesmen and mercantile people were gradually multiplied; foreign artificers, who had made proficiency in various branches of manufacture, came and settled in England; and particular towns upon the coasts of the sea, or of navigable rivers, or which happened to be otherwise advantageously situated, began to extend their commerce.
This alteration in the circumstances of society, which became more and more conspicuous through the reigns of the several princes of the Norman and Plantagenet race, was productive, as we may easily suppose, of a correspondent variation of manners. The proprietors of land, for whose benefit the new improvements were chiefly intended, endeavoured to render their situation more comfortable, by purchasing those<189> conveniences which were now introduced; their ancient plainness and simplicity, with respect to the accommodations of life, were more and more deserted; a mode of living more expensive, and somewhat more elegant, began to take place; and even men of smaller fortunes were tempted in this, as well as in most other particulars, to follow the example of their superiors. By an increase of their annual expence, without any addition to their annual revenue, many individuals, therefore, were laid under difficulties, found it necessary to contract debts, and being subjected to incumbrances, were at last obliged to dismember and alienate their estates.
To this general cause of alienation, we may add the epidemical madness of the crusades, by which many persons were induced to sell or mortgage their possessions, that they might put themselves in a condition for bearing a part in those unprosperous and expensive expeditions.
It may accordingly be remarked, that as, about this time, the commerce of land was rendered more frequent, it was gradually freed from those legal restraints to which it had an-<190>ciently been subjected. According to the simplicity of manners which had prevailed among the rude inhabitants of Europe, and which had kept estates invariably in the same families, no person was understood to have a right of squandering his fortune to the prejudice of his nearest relations.* The establishment of the feudal system produced an additional bar to alienation, from the circumstance that every vassal being a military servant, and having obtained his land as a consideration for services to be performed, could not transfer the property without the consent of his master. In England, upon the dawnings of improvement after the Norman conquest, persons who had acquired an estate by purchase, were permitted to dispose of it at pleasure; and in towns, the inhabitants of which became familiar with commerce, the same privilege was probably soon extended to every tenement, however acquired. When the disposition to alienate became somewhat more general over the country, the conveyance, even of estates descending by inheritance, was executed in a manner con-<191>sistent with feudal principles, by subinfeudation;2 the purchaser became the vassal of the person who sold the lands, and who still continued liable to the chief lord for all the feudal obligations. But in the reign of Edward the first a statute was made, by which an unbounded liberty was given to the alienation of landed property; and when any person sold an estate, the superior was bound to receive the purchaser as his immediate vassal.*
3. By the course of legal succession, the property of the crown vassals, or members of parliament, was also frequently broken and dismembered. The right of primogeniture,3 indeed, which, among the feudal nations, was introduced in order to shelter the individuals of every family under the protection of their own chief or leader, prevented, so far as it went, the division of estates by inheritance. But primogeniture had no place in female succession. Besides, the improvements of society, by enlarging the ideas of mankind, with rela-<192>tion to property, contributed to extend and to multiply devises,4 by which even landed possessions were bequeathed at pleasure, and, according to the situation or caprice of the owner, were liable to be split and distributed among different persons.
When the alienation of estates, together with those divisions of landed property which arose from female succession, or from devise, had proceeded so far as to threaten the destruction of great families, the nobility took the alarm, and had recourse to the artifice of entails for preserving their opulence and dignity. In the reign of Edward the first, they are said to have extorted from the king a remarkable statute, by which the privilege of entailing5 was greatly extended; from which it may be inferred that there had appeared, about this time, a strong disposition to alienate and dismember estates; since, in order to check the progress of the evil, this extraordinary remedy was thought requisite.* <193>
These changes in the state of landed property had necessarily an extensive influence upon the government, and more especially upon the interest and political views of those persons who composed the national council. Many of the crown-vassals were now, from the smallness of their fortune, unable to bear the expence of a regular attendance in parliament; at the same time that they were discouraged from appearing in that assembly; where, instead of gratifying their ambition, they were more likely to meet with situations to mortify their vanity, by exposing the insignificance into which they had fallen. They were no longer in a condition to view the extensions of the royal prerogative with an eye of jealous apprehension; but had commonly more cause of complaint against the great barons, who lived in their neighbourhood, and by whom they were frequently oppressed, than against the sovereign, whose power, being more distant, and operating in a higher sphere, gave them less disturbance.
But while, from these considerations, the small barons were disposed, in many cases, to withdraw themselves from the meetings of parliament, the king had commonly an in-<194>terest in requiring their punctual attendance; because he found it no difficult matter to attach them to his party, and by their assistance was enabled to counterbalance the weight of the aristocracy. On every occasion, therefore, where any measure of public importance was to be agitated, the king was usually solicitous that many of the poorer members of parliament should be present; and a great part of these, on the other hand, were continually excusing themselves from so burdensome a service. The longer the causes which I have mentioned had continued to operate, in dividing and dismembering landed estates, the number of crown-vassals, desirous of procuring an exemption from this duty, became so much the greater.
Comparing the condition of the different landholders of the kingdom, towards the latter part of the Anglo-Saxon government, and for some time after the Norman conquest, we may observe a similar distinction among them, proceeding from opposite causes. In the former period, when people of small fortune were unable to subsist without the protection of their superiors, the property of many allodial<195> proprietors was gradually accumulated in the hands of a few, and those who possessed a landed territory of a certain extent, acquiring suitable consideration and rank, were distinguished by the title of proceres, or chief nobility. Under the first Norman princes, when the dependence of the lower ranks had produced its full effect in the completion of the feudal system, the owners of small estates were almost entirely annihilated; and in the condition of those opulent barons among whom the kingdom came to be divided, no difference was probably acknowledged. But when the revival of arts, and the progress of the people towards independence, had begun to dismember estates, and to multiply the vassals of the crown, the disproportion between the property of individuals became, once more, conspicuous; and the former distinction between the great and small barons excited the attention of the legislature.
The prior accumulation, and the subsequent dissipation, of wealth, had in this respect a similar effect. In amassing great fortunes some of the barons were necessarily more successful than others, which rendered estates extremely<196> unequal. In that state of society which tempted men to spend, or promoted the division of their estates, some proprietors proceeded likewise in this career with greater rapidity, by which the same inequality was produced.
In the great charter of king John it is ordained, that the archbishops, bishops, earls, and greater barons, shall be summoned to the meetings of parliament, by particular letters from the king; and that all other persons, holding immediately of the crown, shall receive a general citation from the king’s bailiffs or sheriffs. But, although the more opulent vassals of the crown are thus clearly exalted above those of inferior wealth, and dignified with particular marks of respect, it is difficult to ascertain the extent of property by which those two orders of men were separated from each other. That the statute has a reference to some known boundary between them, can hardly be doubted; but whether, in order to obtain the rank and title of a great baron, an estate amounting to forty hides of land was requisite, agreeable to the distinction of the chief nobility in the reign of Edward the Confessor, or whether the qualification in<197> point of property had been varied according to the alteration of times and circumstances, no account can be given.
The effect of a regulation for summoning the small barons to parliament, by a general citation only, was to place them in greater obscurity, and to encourage their desertion, by giving them reason to hope that it would pass without observation. In such a situation, however, where a complete and regular attendance was not to be expected, and where each individual was endeavouring to excuse himself, and to throw as much as possible the burden upon his neighbours, an agreement would naturally be suggested to the inhabitants of particular districts, that they should relieve and succeed each other by turns, in the performance of this duty, and thus contribute to their mutual ease and advantage, by sharing among them an inconvenience which they could not entirely avoid. Of these joint measures, it was an obvious improvement, that, instead of a vague and uncertain rotation, particular persons, who appeared the best qualified for the task, and were most willing to undertake it, should be regularly elected, and<198> sent, at the common expence, to represent their constituents in parliament. Nor can it be doubted that the king would be highly pleased with such an expedient, by which he secured a proportion of the small barons in the ordinary meetings of the national council, and which did not hinder him from convening a greater number on extraordinary occasions.
In this manner the knights of shires6 appear to have been first introduced into parliament. The date of this remarkable event cannot be fixed with precision; but it was undoubtedly as early as the reign of Henry the third.* The division of counties produced a separate association among the crown vassals, in each of<199> those districts, for electing their own representatives. The number of these appears to have been originally precarious, and probably was varied in different emergencies. On different occasions we meet with four knights called from each county; but they were gradually reduced to two, the smallest number capable of consulting together for the interest of their constituents.†
The same changes in the state of the nation, which contributed principally to the rise of the knights of shires, introduced likewise the burgesses7 into parliament.
By the advancement of agriculture, the peasants, in many parts of Europe, had been gradually emancipated from slavery, and been exalted successively to the condition of farmers, of tenants for life, and of hereditary proprietors. In consequence of the freedom attained by this inferior class of men, a great proportion of them had engaged in mechanical employ-<200>ments; and, being collected in towns, where the arts were most conveniently cultivated, had, in many cases, become manufacturers and merchants. The situation of these manufacturing and trading people enabled them, after the disorders which prevailed in Europe had in some measure subsided, to make a rapid progress in improving their circumstances, and in acquiring various immunities and privileges. By mutual emulation, and by the influence of example, the inhabitants of the same town were excited to greater industry, and to the continued exertion of their talents; at the same time that they were in a capacity of uniting readily for mutual defence, and in supporting their common interest. Being originally the tenants or dependents, either of the king or of some particular nobleman, upon whose demesne they resided, the superior exacted from them, not only a rent for the lands which they possessed, but various tolls and duties for the goods which they exchanged with their neighbours. These exactions, which had been at first precarious, were gradually ascertained and fixed, either by long custom, or by express regulations. But, as many artifices had, no<201> doubt, been frequently practised, in order to elude the payment of those duties, and as, on the other hand, the persons employed in levying them were often guilty of oppression, the inhabitants of particular towns, upon their increasing in wealth, were induced to make a bargain with the superior, by which they undertook to pay a certain yearly rent, in room of all his occasional demands: and these pecuniary compositions, being found expedient for both parties, were gradually extended to a longer period, and at last rendered perpetual.
An agreement of this kind appears to have suggested the first idea of a borough, considered as a corporation. Some of the principal inhabitants of the town undertook to pay the superior’s yearly rent, in consideration of which they were permitted to levy the old duties, and became responsible for the funds committed to their care. As managers for the community, therefore, they were bound to fulfil its obligations to the superior; and, by a natural extension of the same principle, it came to be understood that they might be prosecuted for all its debts; as, on the other hand, they obtained, of course, a right of pro-<202>secuting all its debtors. The society was thus viewed in the light of a body politic, or fictitious person, capable of legal deeds, and executing every sort of transaction by means of certain trustees or guardians.
This alteration in the state of towns was accompanied with many other improvements. They were now generally in a condition to dispense with the protection of their superior; and took upon themselves the burden of keeping a guard, to defend them against a foreign enemy, and to secure their internal tranquillity. Upon this account, beside the appointment of their own administrators, they obtained the privilege of electing magistrates, for distributing justice among them. They became, in a word, a species of soccage tenants, with this remarkable peculiarity in their favour, that by remaining in the state of a corporation from one generation to another, they were not liable to the incidents belonging to a superior, upon the transmission of lands to the heirs of a vassal.
The precise period of the first incorporation of boroughs, in the different kingdoms of Europe, is not easily determined; because the<203> privileges arising from the payment of a fixed rent to the superior, in the room of his casual emoluments, and the consequences which resulted from placing the revenue of a town under permanent administrators, were slowly and gradually unfolded and brought into the view of the public. In the eleventh and twelfth centuries, we may trace the progress, if not the first formation, of those communities, in Italy and in Germany, which corresponds with the advancement of trade and manufactures in those countries.* The towns in France are said by Father Daniel8 to have been first incorporated in the reign of Lewis the Gross; but it appears that they had then acquired considerable privileges, were intrusted with their own government, and the inhabi-<204>tants were formed into a militia for the service of the crown.†
In the reign of Henry the first of England, the cotemporary of Lewis the Gross, the inhabitants of London had begun to farm their tolls and duties, and obtained a royal charter for that purpose.† Their example was followed by the other trading towns, and from this time forward, the existence of English boroughs becomes more and more conspicuous.
When the towns, under the immediate protection of the king had been incorporated, and, of course, exalted into the rank of crown-vassals, it was agreeable to the general system of the feudal policy, that they should have a voice in the national council; and more especially, when extraordinary aids, beside their constant yearly rent, were demanded from them, as well as from the other tenants in capite, that they should have an opportunity of refusing or consenting to these demands. Their attendance in that assembly was, at the same<205> time, of advantage to the sovereign, and even more so than that of the small barons; for the trading people of all the inferior part of the nation were the most liable to be insulted and oppressed by the nobles, and were of consequence proportionably attached to the monarch, who had found his account in protecting and supporting them.
It was impossible, however, that all the members of every royal borough should assemble in order to deliberate upon the business of the nation; and in this, as well as in the separate concerns of each respective community, it was natural for them to commit the administration to particular commissioners or representatives. In England, accordingly, it appears, that after the boroughs had been incorporated, and had been raised, by their trade, to a degree of consideration and independence, they began to send representatives into parliament. The records of parliament, as has been before remarked, during several reigns after the Norman conquest have not been preserved; so that it is no less uncertain at what precise time the burgesses, than at what time the knights of shires, made their first ap-<206>pearance in that assembly; but as those two events proceeded from the same cause, the advancement of commerce and manufactures, it is probable that they were nearly coeval.*
In the great charter of king John, it is expressly ordained, that aids shall not be imposed upon the boroughs without the consent of parliament; from which it may be inferred, that those communities had then acquired the rank of soccage tenants, and that matters were at last ripened and prepared for their introduction into the councils of the nation. The first instance upon record of the burgesses attending in parliament, occurs in the forty-ninth year of the reign of Henry the third; when they are said to have been called by the famous earl of Leicester, in order to support his ambitious views: but this is not mentioned by any historian as a late innovation; neither is it probable that this nobleman, at the very time when he was endeavouring to screen himself from the resentment of the nation,<207> would have ventured to open a new source of discontent, by making a sudden and violent change in the constitution. It is likely that some of the burgesses had been present in former parliaments; as we find that they afterwards were, upon two different occasions, in the early part of the reign of Edward the first: but the number of them was not fixed; nor were they accustomed to give a regular attendance.
The policy of Edward the first led him to take hold of the circumstances, which have been mentioned, for promoting the interest of the crown. In the twenty-third year of his reign, directions were given to summon regularly the knights of the shires, together with the burgesses; of which, after the example of the former, two were generally sent by each borough; and from that period, both these classes of representatives continued to be constant members of the legislature.
The same circumstances, according as they existed more or less completely, in the other countries of Europe, were productive of similar changes in the constitution of their national councils.<208>
In Scotland, a country whose government and laws bore a great analogy to those of England, not only from the common circumstances which operated upon all the feudal nations, but also from that vicinity which produced an intercourse and imitation between the two countries, the parliament, as far back as we can trace the records of Scottish history, appears to have been composed of the greater thanes, or independent proprietors of land. The representatives of boroughs are supposed by historians to have been first introduced into its meetings during the reign of Robert Bruce, which corresponds to that of Edward the second; but satisfactory evidence has lately been produced, that this event must have happened at an earlier period.* From the slow progress, however, of trade in Scotland, the number of burgesses in her national council was for a long time inconsiderable; and their appearance was limited to a few extraordinary cases.
The representatives of counties became con-<209>stituent members of the Scottish parliament by the authority of a statute, which, being still preserved, affords great light with respect to the origin of this establishment both in Scotland and in England. By that statute it is provided, that the smaller vassals of the crown should be excused from personal attendance in parliament, upon condition of their sending representatives, and maintaining them at the common expence. This regulation was introduced by James the first,9 who, as he had resided for many years in England, and was a prince of learning and discernment, had probably been induced to copy this branch of policy from the institutions of a people, among whom the monarchy had made greater advances than in his own country. But the Scottish barons, whose poverty had given occasion to this regulation, laid hold of the dispensation which it bestowed upon them, without fulfilling the conditions which it required; and it was not until the reign of James the sixth,10 that their obligation to send representatives into parliament was regularly enforced.* <210>
In France, the representatives of boroughs, according to the most probable account, were first introduced into the national assembly in the reign of Philip the Fair, by whom they are said to have been called for the purpose chiefly of consenting to taxes.† It is remarkable, however, that in the French convention of estates,11 no set of men, corresponding<211> to the knights of shires in England, was ever admitted. The improvement of arts, in France as well as in England, contributed not only to raise the trading people, but also to dismember the estates of many proprietors of land; but the king does not seem to have availed himself of that situation for obliging the small barons to send representatives into the national council. The greater authority possessed, about this period, by the French monarch, was probably the cause of his not resorting to the same shifts, that were practised in England, to counterbalance the power of the aristocracy. That a sovereign should court the lower part of his subjects, and raise them to consideration, with a view of deriving support from them, is none of the most agreeable expedients; and nothing, we may suppose, but some very urgent necessity, could make him think of submitting to it.
The circumstance now mentioned, created a most essential difference between the national council in France and in England; the latter comprehending the representatives of counties as well as of boroughs, and consequently a large proportion of the people; whereas the former<212> admitted no other representatives but those of boroughs, the number of which, in either country, was for a long time inconsiderable.
The free cities of Germany had, in the thirteenth century, acquired such opulence as enabled them to form that famous Hanseatick league,12 which not only secured their independence, but rendered them formidable to all the military powers in their neighbourhood. From these circumstances they rose to political power, and obtained a seat in the diet of the empire. But in Germany, the representatives of the small barons were not admitted into that assembly, from an opposite reason, it should seem, to that which prevented their admission into the French convention of estates. At the time when the rise of commerce had led the way to such a regulation, the nobility, and the free states of the empire, had so firmly established their independence, and the emperors had so far declined in authority, that it was vain to expect, by any artifice or exertion, to stop the progress of the aristocracy. The great exaltation of the German states had indeed produced a wide difference in the power and dignity of the different nobles; and those<213> of inferior rank, instead of maintaining an equal voice with their superiors, were at length associated in different classes; each of which, having only a single vote in the diet, were, in fact, reduced to a worse condition than if they had acted by representatives.
In Flanders, in the several principalities which afterwards composed the Spanish monarchy, and, in general, in all the feudal governments of Europe, we may observe, that whenever the towns became free and opulent, and where they continued members of a larger community, they obtained a seat in the legislative assembly. But with respect to the representatives of the small barons, or inferior nobles, their introduction into the legislature is to be regarded as a more singular regulation, which, depending upon a nice balance between the crown and the nobility, has been adopted in some countries, and in others neglected, according as it happened to suit the interest and policy of the sovereign, or the peculiar circumstances of the people.* <214>
In Italy, a country which had been broken into small principalities, under princes possessed of little power, or residing at such a distance as to have little capacity of exerting it over the inhabitants, the principal towns, whose prosperity in trade, if we except the territories belonging to the Moors in Spain, was prior to that of the other parts of Europe, became separate and independent states; and fell under such modes of republican government as were agreeable to the situation of their respective societies.
From a connected view of the different countries of Europe, during the period now under examination, it seems hardly possible to entertain a doubt, that the representatives in the English parliament were introduced in the manner, and from the causes, which have been<215> specified. It appears, at the same time, surprising, and may perhaps be considered as an objection to the account which has been given, that there is a profound silence, among all cotemporary writers, concerning this important event. The historians of that age, it is true, were neither philosophers nor politicians; they were narrow-minded and bigotted ecclesiastics, who saw nothing of importance in the history of England, but what was immediately connected with those religious institutions to which they were devoted. But still it may be said, that if the commons were unknown in the early assemblies of the nation, the introduction of that order of men into parliament, would have been such a novelty, as could hardly fail to strike the imagination, and to be mentioned in some of the writings of those times.
It is necessary, however, to remark, that this alteration was produced in a gradual manner, and without any appearance of innovation. When the knights of shires began to attend the meetings of parliament, they were no other than barons formerly entitled to that privilege. Their being sent at the common expence of the small barons be-<216>longing to a district, was a circumstance that would excite little attention; as it probably arose from the private contribution of the parties concerned, not from any public regulation. The burgesses, in like manner, were not admitted into parliament all at once, or by any general law of the kingdom; but when particular towns, by their incorporation, and by the privileges bestowed upon them, had acquired the rank of crown-vassals, their obtaining a share in the legislature, by means of representatives named for that purpose, was a natural consequence of their advancement. This privilege, so far from being regarded as new or uncommon, had regularly been acquired by such of the churles, or peasantry, as were exalted to the condition of soccage tenants; and was in reality a consequence of vassalage, interwoven in the system of that feudal government, with which the people of that age were familiarly acquainted. Neither was it likely that the appearance, from time to time, of a few of these inferior persons, along with the greater lords of parliaments, would have an apparent tendency to vary the deliberations of that assembly; and the practice had, in all pro-<217>bability, been long continued, and greatly extended, before the effects of it were of such magnitude as to attract the notice of the public.
The Division of Parliament into two Houses, and the peculiar Privileges acquired by each House.
The members of the great council, in all the feudal governments of Europe, were divided originally into two classes or orders; the one composed of ecclesiastical, the other of lay barons. These two sets of men, from their circumstances and way of life, having a different interest, and being actuated by different views of policy, entertained a mutual jealousy, and were frequently disposed to combat and thwart the designs of each other. In the conduct of national business, they usually held separate conferences among themselves; and when they afterwards came to a joint meeting, were accustomed, instead of voting promiscuously, to deliver, upon the part of each, the result of their previous deliberations. As each of those bodies was possessed of independent authority,<218> it would have been dangerous to venture upon any measure of importance, in opposition to the inclination or judgment of either; and, therefore, in all public transactions which they had occasion to determine, the concurrence of both was held indispensable. Hence, by long custom, they became two separate estates, having each a negative upon the resolutions of the legislature.
When the burgesses were admitted into the national assembly, they were, by their situation and character, still more distinguished from the ecclesiastical and lay barons, than these last from each other. They acted, not in their own name, but in the name of those communities, by whom they had been appointed, and to whom they were accountable: at the same time that the chief object in requiring their attendance, was to give their consent to such peculiar aids, or taxes, as were demanded from their constituents. It was necessary, therefore, that they should consult among themselves, in matters relating to their peculiar interest; and, as the department allotted them was unconnected with that of all the other members, they naturally obtained a separate<219> voice in the assembly. We may easily conceive, that when this method of procedure had been established in the imposition of taxes, it was afterwards, upon the subsequent rise of the burgesses, extended to every branch of parliamentary business, in which they claimed the privilege of interfering. Thus, in all the feudal kingdoms which had made advances in commerce, the great council came to be composed of three estates:13 each of whom, in the determination of public measures, enjoyed a separate negative.
Whether these different classes of men should be convened in the same, or in different places, depended, in all probability, upon accident, and in particular on the number of their members, which, at the times of their meeting, might render it more or less difficult to procure them accommodation. In England, the prelates, and the nobility, were accustomed, in ordinary cases, to meet in the same place; although it is likely that each of them, in order to settle their plan of operations, had previous consultations among themselves. When the deputies from counties and boroughs were first<220> called into parliament, they proceeded upon the same plan, and were included in the same meeting with the ancient members. It is probable, that the boroughs, then in a condition to use this privilege, were not numerous. To a parliament held in the eleventh of Edward the first, we find that no more than twenty towns were required to send representatives; of which two were summoned from each town.* But upon the regular establishment of the deputies from counties and boroughs, in the twenty-third year of that reign, the number of the latter was greatly encreased. The returning boroughs, from each of which two representatives were generally required, are said to have then amounted to about an hundred and twenty; besides thoses belonging to Wales, of which there are supposed to have been about twelve.† <221>
From the number of the burgesses at this time, from the influence and weight which they had acquired, and from their peculiar character and circumstances, as representing the commercial interest, they now found it convenient, it should seem, to have a different place of meeting from the other members of parliament, and began to form a separate body, which was called the house of commons.<222>
The knights of shires continued, for some time after, to sit in what now became the house of peers. Although the small barons were, in general, excused from personal attendance, yet, as crown-vassals, they had still a title to vote in parliament; and such of them as attended, even in consequence of an election, were at first considered in the same light with the greater nobility. By appearing frequently, however, in the capacity of mere representatives, not only elected, but having their charges borne by their constituents, their privilege of attending in their own right was gradually lost and forgotten. In consequence of the progressive alienation and division of landed property, their personal influence was continually sinking, while that of the mercantile people was rising in the same proportion; and, as these two classes were thus brought nearer to a level, the landed gentry were often indiscriminately chosen to represent either the one or the other. In such a situation, it became at length an obvious improvement, that the deputies of the counties and boroughs, as by the circumstance of their being representatives, and responsible<223> to those who had appointed them, they were led into a similarity of procedure, should meet in the same house, and carry on their deliberations in common. It is conjectured by Carte, the historian, that this change was not effected before the latter part of the reign of Edward the third; but with respect to the precise time when it happened, there seems to be no evidence whatever.14
The coalition of these two orders of deputies may perhaps be regarded as the great cause of the authority acquired by the English house of commons. The members of that house were by this measure exalted to higher consideration and respect, from the increase of their numbers, as well as from the augmentation of their property. They now represented the mercantile people and the landed gentry; who, exclusive of those who remained in a state of servitude, composed the great body of the people, and who possessed a great proportion of the national wealth. Of those two classes of the free inhabitants, the landed gentry, for a long time, enjoyed the first rank; and the deputies of boroughs were therefore frequently<224> chosen among the neighbouring gentlemen, who, by reason of their independence, were more capable than their own burgesses of protecting their constituents. By joining together and confounding these different orders of representatives, the importance of either was in some degree communicated to both; at the same time that the people, under so many leaders, became attentive to their common privileges, and were taught to unite in defending them. Had all the constituents been to appear in the national council, they would have been a disorderly multitude, without aim or direction: by choosing deputies to manage their parliamentary interest, they became an army, reduced into regular subordination, and conducted by intelligent officers.
We accordingly find, that, even so early as the reign of Richard the second, the commons, when they had been induced to take party with the crown, were able to defeat the designs of the nobility, and to raise the sovereign from the lowest extremity to the height of absolute power. The sudden revolution, produced at that time by the national representa-<225>tives, was a prelude to those greater exertions, which, at a subsequent period, they displayed in a better cause.
In the principal kingdoms upon the continent of Europe, the third estate was differently constituted. It comprehended, as I formerly observed, no other deputies but those of the trading towns; a set of men, who, in comparison even of the small barons, or inferior gentry, were long obscure and insignificant. In supporting their privileges, the boroughs were not aided by the joint efforts of the counties; and the family interest of the representative was not super-added to the weight of his personal wealth.
In some of those kingdoms, therefore, as in France and in Spain, the monarch was enabled to break the aristocracy, and to annihilate the national council, before the third estate, in consequence of the advancement of commerce, was in a condition to establish its authority: in others, as in the German empire, the great nobles, before the deputies of towns had acquired much influence in the diet, reduced the power both of that assembly, and of the emperor, to a mere shadow.<226>
After the members of parliament had been accustomed to meet regularly in two separate places, the three estates were gradually melted down and lost, in the division of the two houses. The ecclesiastical and lay barons, who sat in the upper house, were led, most frequently, into a promiscuous deliberation; and did not think it worth while to demand a separate voice, except in determining any nice or important question, by which the interest of either was particularly affected. But as government came to be more established upon a regular plan, those extraordinary questions occurred less frequently; at the same time that the progress of knowledge, and of the arts, diminished the influence of the clergy, and rendered them less willing to hazard a direct and avowed contest with the nobles. The custom of deliberating promiscuously, was thus more and more confirmed, and the exertions of a separate negative, being considered as indications of obstinacy or a factious disposition, were marked with disapprobation and censure, and at length entirely exploded. It appears that, in the time of Richard the second, this innovation was not entirely compleated.<227>
The two houses, on the other hand, having occasion always to deliberate apart, acquired an independent authority, and were naturally regarded as distinct branches of the legislature. The resolutions of each house constituted a separate voice; and the concurrence of both was necessary in all the determinations of parliament.
After the formation of the two houses of parliament, in the manner just mentioned, each of them came to be possessed of certain peculiar privileges; which, although probably the objects of little attention in the beginning, have since risen to great political importance.
1. The house of commons, from the nature of its original establishment, obtained the sole power of bringing in money-bills. This was not, at first, regarded as a privilege, but was introduced merely for the sake of dispatch. The primitive house of commons was composed of burgesses only, empowered to grant the king a supply, by one general agreement, in place of the separate bargains, which had formerly been made with each borough. In conducting this business, each borough seems to have directed its repre-<228>sentatives with respect to the rate of assessment to which they should consent; and by collecting these particular directions, the sum total to be granted by the whole trading interest was easily ascertained. In a matter so simple as that of determining the extent of the contribution which, on any particular occasion, they were willing to make, the constituents found no difficulty either in preparing their deputies, by expressing a previous opinion upon the subject, or by sending them clear and pointed instructions, in case, from any new exigence, after the meeting of parliament, an unexpected demand was made by the sovereign.
According to this constitution of parliament, the imposition of taxes produced no intercourse between the two houses; but each house consented to the exactions laid upon that order of men with which it was connected. This method of procedure was continued so long as the house of commons consisted only of burgesses; but when the deputies from counties came to sit and deliberate along with them, a variation was necessary. The deputies of the counties having, by this change, assumed entirely the character of representatives, came<229> naturally to be limited, in the same manner as the burgesses, by the instructions of their constituents.* But those two orders of men, who now formed the cumulative body of the commons, were connected with different parts of the nation; and, while the burgesses were interested in the taxes laid upon the boroughs, the county-members had an equal concern in such as were paid by the landed gentry. In their promiscuous deliberations, therefore, upon the subject of taxation, it was found convenient, that each of them should not confine their views to that part of the community which they represented, but should agree in the duties to be paid in common by the whole of their constituents; and, as the taxes paid by landed gentry or small barons were of the same nature with those which were laid upon the great barons or peers, this naturally suggested the idea of a general assessment upon the nation at large, to be imposed by the concurrence of both houses of parliament. Hence<230> the introduction of tenths, fifteenths, and subsidies; the two former of which were taxes upon personal property; the last, upon estates real and personal. In the imposition of such taxes, both houses of parliament were equally concerned; and the concurrence of both was therefore held requisite.
The house of commons, however, if the precise sum to be granted by them had not been previously specified, were accustomed, in cases of this nature, to consult their constituents, and to regulate their conduct by the instructions which they received.
They could have no debate, therefore, on any occasion, upon the subject of taxation; as their province extended no farther than merely to declare the determination of their constituents. Upon this account, it was to no purpose that any particular tax should first become the subject of deliberation among the peers, and afterwards be submitted to the consideration of the commons; since, after the fullest and most laborious discussion of the question by the former, no other point could be considered by the latter, but whether the intended supply was agreeable to their instructions. The<231> most expedient course, in order to save time and useless disputation, was evidently, that the commons should begin with stating the exact sum which they had been empowered to grant; and that the tax proposed by them should afterwards be examined and canvassed in the house of peers, whose conduct, in this as well as in other particulars, was not subject to any direction or controul.
From the same circumstance which introduced the practice, that every proposal for a tax should originate in the house of commons, it became customary that every such proposal or bill, when presented to the house of peers, should receive their simple assent, or negative, without variation or amendment. It could answer no purpose, to return the bill, with amendments, to the house of commons; because the members of that house had no power of deliberating upon such matters, and, having once declared the opinion of their constituents, could not venture to deviate from it in any subsequent stage of the business.
It is probable, at the same time, that this mode of conducting the business of taxation was promoted by the king; who, finding the<232> people of inferior condition most ready to acquiesce in his demands, was willing that, by taking the lead in the imposition of taxes, they might incite the nobility to follow their example, and make them ashamed of declining a burden which they were much more able to bear.
Such appears to have been the origin of this important privilege, which is now justly regarded by Englishmen as one of the greatest pillars of their free constitution. Like many other parts of the British government, it arose from views of immediate conveniency; and its distant consequences were neither foreseen nor intended: but, after it had received the sanction of immemorial custom, it was preserved inviolable, without any consideration of the circumstances from which it had taken its rise. As the commons interfered by degrees in legislation, and in various other branches of business, their interpositions became too extensive and complicated, to permit that they should be regulated by the opinion of constituents living at a distance. In consequence of more liberal views, it came also to be considered as the duty of each representative, to pro-<233>mote the good of the nation at large, even in opposition to the interest of that particular community which he represented. The instructions, therefore, of constituents were laid aside, or regarded as producing no obligation, upon any set of deputies, to depart from the dictates of their own conscience. The expediency of this important privilege, with which the house of commons came thus accidentally to be invested, will fall more properly to be examined hereafter.
2. Upon the establishment of the two houses of parliament, the supreme judiciary power was, on the other hand, appropriated to the house of peers. The jurisdiction belonging to the Saxon Wittenagemote was exercised promiscuously by all the members of that assembly; and in the Norman parliaments, both before and after the formation of the aula regis, the same rule was observed. It seems, however, to be a principle of natural law, that when a magistrate of any sort is invested with jurisdiction, he is bound to a personal discharge of the duties of his office, and has no power to commit the exercise of them to a delegate. The public, by whom he is appointed, has a<234> right to the fruit of that capacity or diligence, upon account of which he was selected to the office; and as, in the decision of law-suits, no security can be given that different individuals will act precisely in the same manner, the appointment of a delegate for the discharge of this employment, would be to impose upon the public a different rate or measure of service from that which was due. Upon this principle, the members of the house of commons, having only a delegated power, were excluded from the exercise of that jurisdiction with which the members of parliament, in general, had been anciently invested. Their disqualification, at the same time, was rendered still more apparent, by their acting in consequence of instructions from their constituents. The counties and boroughs might be in a condition, from their general information, to instruct their deputies concerning the taxes to be imposed, or even concerning any law to be enacted, but were altogether incapable of directing them how to proceed in the determination of law-suits. The decision given in any cause must depend upon a complex view of the proofs and arguments produced in court;<235> and, therefore, no person who is absent, especially in cases where the chief part of the business is transacted viva voce,15 can form any proper judgment concerning it. Upon this account, the only members of parliament, qualified to act as judges, came to be those who sat in their own right, who had the liberty to form their opinions upon the spot, and, by an immediate investigation of the circumstances, were capable of deciding from the impression made upon their own minds.
From the same cause, therefore, which bestowed upon the commons the right of suggesting taxes, the house of peers became the ultimate tribunal of the nation, and obtained the power of determining, in the last resort, both civil and criminal actions. Thus, while one of these branches of the legislature enjoyed an immediate access to the purses of the people for the public service, the other was intrusted with the guardianship of their lives and fortunes. What was acquired by the commons, in one department, was fully compensated by what fell to the share of the peers in another; so that the constitution remained upon its an-<236>cient basis, and was kept in equilibrio by an equal distribution of privileges.
It may farther deserve to be remarked, that, by the exclusion of the commons from the judicial power, the supreme tribunal of the nation came to be composed of a moderate number of persons; a circumstance highly conducive to the uniformity of their decisions, as well as to the expedition and regularity of their procedure.
When law-suits before the Norman parliament had become frequent, it was found inconvenient to determine them in a full meeting, and they were brought, in the first instance, before the aula regis. But even as a court of review, the parliament, after the deputies of boroughs and counties were obliged to give constant attendance, was perhaps too numerous; while, by the division of its members into two houses, they were prevented, at least, according to their usual forms, from co-operating with one another in the distribution of justice. The same regulation, therefore, which was introduced from the peculiar situation of the lords and of the commons, was<237> afterwards recommended, no doubt, and supported by general considerations of utility.
3. The supreme judiciary power being limited to the house of peers, the right of impeachment was of course devolved upon the commons.
When the persons intrusted with great offices under the crown, or enjoying any share in the public administration, were guilty of malversation in office, or of what are called high misdemeanors, it was frequently thought necessary, that they should be tried before the highest court in the nation, whose weight alone was adequate to the task of bringing such powerful offenders to justice. In the earlier periods of the English government, the national council was accustomed to inquire into the conduct of the different executive officers, and to punish them for their offences. The king himself was not exempted from such inquiry and punishment, more than persons of inferior rank. On such great occasions, the prosecution, instead of being committed, as in ordinary crimes, to the management of an individual, was usually conducted by the assembly, who acted both in the capacity of accusers and<238> judges. This was, doubtless, a practice ill calculated for securing a fair trial to the delinquent; but it was no more than what happened in criminal trials before the ordinary courts of justice, where the king was both judge and prosecutor.
Upon the establishment of the two houses of parliament, it became a natural and obvious improvement, that, as the power of trying those offences was restricted to the house of peers, the privilege of conducting the accusation should belong to the commons; that branch of the legislative assembly, which had no share in the judicial department, though it was no less concerned than the other to prevent the abuses of administration. In this manner the two characters of a judge and a prosecutor, which, in the ordinary courts, had been placed in different hands by the custom of appointing deputies to officiate in the name of the crown, came likewise to be separated in the trial of those extraordinary crimes, where, from the danger of arbitrary measures, an amendment of the ancient method of proceeding was most especially requisite.
4. Beside the foregoing privileges, which,<239> from the influence of peculiar circumstances, were acquired by the different branches of parliament, either house was led to assume the power of ascertaining the persons of whom it was composed; a jurisdiction and authority over them, and the cognizance of the several rights and immunities belonging to their own order. Hence it came to be established, that the house of commons should determine questions concerning the election of its own members; and that every bill affecting the rights of the peerage should take its origin in the house of peers. The privileges arising from this principle, which have been acquired by the house of commons, were afterwards greatly multiplied, and variously subdivided, in consequence of the attention given by that house to the forms of its procedure, and to the rules and maxims necessary for securing its independence.<240>
Concerning the Manner of electing the national Representatives, and the Forms of Procedure in Parliament.
The establishment of a house of commons, consisting entirely of representatives, required a set of regulations for the election of its members. From the different situation of the counties and boroughs, the deputies of those two classes of men came to be chosen in a very different manner.
1. Upon the first incorporation of a borough, the nomination of particular persons, for distributing justice, for managing the funds, and for executing the other business of the community, would seem naturally to belong to all its members, who have a common concern in those branches of administration. In those towns, accordingly, where commerce had introduced a degree of wealth and independence among the bulk of the inhabitants, such a popular plan of government appears to have been generally adopted. But in many of the<241> boroughs, whose trade was more in its infancy, the people of inferior rank were still too poor, and in too servile a condition, to claim the privilege of electing their own administrators; and by their neglecting to intermeddle in public business, the care of every thing relating to the community was devolved upon particular citizens, distinguished by their opulence. When the boroughs were afterwards permitted to have a voice in parliament, the differences in their condition occasioned the same, or even a greater diversity in the mode of choosing their representatives; and, in a long course of time, many other varieties were added, from the operation of accidental circumstances. In some towns, therefore, the representatives were chosen by a considerable part, in others, by a very small proportion, of the inhabitants; in many, by a few individuals, and these, in particular cases, directed, perhaps, or influenced, by a single person.
Two sorts of inequality were thus produced in the representation of the mercantile and manufacturing interest: the one from the very different magnitude of the boroughs, who sent, for the most part, an equal number of representatives: the other, from the very<242> different number of voters, by whom, in each borough, those representatives were chosen. But this inequality, whatever bad consequences may have flowed from it in a later period, was originally an object of little attention, and excited no jealousy or complaint. The primitive burgesses were sent into parliament for the purpose chiefly of making a bargain with the crown, concerning the taxes to be imposed upon their own constituents; and the representatives of each borough had merely the power of consenting to the sum paid by that community which they represented, without interfering in what was paid by any other. It was of no consequence, therefore, to any one borough, that another, of inferior size or opulence, should have as many representatives in the national assembly; since those representatives, as far as taxes were concerned, could only protect their own corporation, but were incapable of injuring or hurting their neighbours. So far were the boroughs from entertaining a jealousy of one another upon this account, that some of them found it more eligible to acquiesce in whatever aids the king thought proper to demand, than to be at the expence of supporting their depu-<243>ties in parliament; and were willing to renounce the privilege, in order to be free of the burden attending it. Many instances of this occur in the English history, from the reign of Edward the first. Mr. Browne Willis has produced a large list of boroughs, which had early sent representatives into parliament, but which lost that privilege by disuse;16 and there is no doubt that several towns, which had been incorporated, and which obtained the denomination of boroughs, exerted themselves from the beginning, and successfully, in avoiding any parliamentary representation.
Neither was it originally of much importance to any parliamentary borough, in what manner its deputies were chosen; for these, being instructed by the corporation, with respect to the precise amount of the supply to be granted, were only the messengers, who declared the will of their constituents; and as they were not intrusted with discretionary powers, their behaviour occasioned no apprehension or anxiety. The honour of being the representative of a borough was, in those times, little coveted; and the privilege of voting in his election was yet less. The rank which the<244> burgesses held in parliament was too low to become the object of much interest or solicitation; and those who voted for a burgess, were so far from gaining any thing by it, that they had scarcely an opportunity of obliging their friends.
2. The knights of the shires were at first elected, in each county, by a meeting composed of the small barons, or vassals of the crown. Of this, from the nature of the thing, it seems hardly possible to doubt. The small barons had been originally members of parliament, but were excused from personal attendance, upon condition of their sending representatives. Who could have a right to chuse those representatives, but the persons whom they represented; the persons by whom they were sent; and who bore the charges of their attendance?
But although the vassals of the crown only had, in the beginning, a right to interfere in the appointment of the knights of shires; the rear-vassals, or such as held their lands of a subject-superior, were afterwards admitted to a share in the election. This, although an important change in the constitution of par-<245>liament, has passed, like many others, without any notice of cotemporary historians. Of the circumstances from which it proceeded, a probable conjecture seems to be the utmost that can be attained.
The small barons, or vassals, who, exclusive of the nobility, held their lands of the crown, and those who held them of a subject-superior, were separate orders of men, who originally, by their situation, were removed to a great distance from each other. As members of the community, they appeared to be distinguished most remarkably in two respects. The vassals of the crown sat in parliament: those of a subject-superior were members of his baron-court. The former were liable for aids, and for the other feudal incidents, to the king: the latter were bound, for similar duties, to their inferior liege lord.
But these distinctions, arising from the feudal policy, continued no longer than while that system remained in its vigour. After the reign of Edward the first, the small barons, having ceased to attend in parliament, otherwise than by representatives, were at length understood, unless when particularly called by<246> the king, to have no more a seat in that assembly than the vassals of a subject-superior.
With respect to the feudal incidents, great alterations, in the course of time, were also produced. The demesnes of the crown, together with the extraordinary aids, and other incidents, drawn from the crown-vassals, were the only original funds for supporting the expence of government. But when the charges of the public, in consequence of the gradual advancement of society, had from time to time been encreased, these funds became at length insufficient; new supplies were demanded by the king; and after stretching as far as possible the ancient duties of the crown-vassals, it was found necessary to levy an assessment upon all the proprietors of land, without considering whether they held immediately of the king, or of a subject. The greater part of the public burdens came thus to be imposed upon the nation at large; and the casual emoluments, which the crown derived from its immediate vassals, became, in proportion, of little importance.
In this situation, there was no longer any essential difference between the small pro-<247>prietors of land, who held immediately of the crown, and those who held of a subject. Neither of them had any right, in their own persons, to sit in the house of commons. Both of them, according to the later notions of property, had the same full power over the respective estates which they possessed; and the estates of both were equally subject to the taxes imposed upon the counties. Both of them, therefore, were equally beholden to the knights of the shires, by whose consent those taxes were imposed, and who had it in their power to secure either the one or the other from oppression. As those two classes of men thus reaped an equal benefit from the service of the knights of shires, it became reasonable that they should contribute jointly to the expence with which that service was attended; and if they joined in maintaining the county representatives, it was no less equitable, that they should have a voice in their election. If they submitted to the burden, they could not decently be excluded from the privilege.
By this relaxation of the feudal system, the foundation of the house of commons was en-<248>larged; and its establishment was rendered more extensively useful. The knights of the shires became properly the representatives, not of one class, but of the whole gentry of every rank and description. All the independent property in the kingdom was, according to this constitution, represented in parliament: the lords appeared in behalf of their own possessions; the inferior landed interest fell under the care of the county members; and the burgesses were entrusted with the protection of that wealth which was employed in trade.
Such, in all probability, were the circumstances, from which the rear-vassals obtained a share in the election of county-members; but at what time this change was produced is very uncertain. Mr. Hume has concluded, that it took place in consequence of an act of parliament in the reign of Henry the fourth. But when we examine that statute, it does not appear to have introduced any such regulation: on the contrary, it supposes that proprietors of land, not holding directly of the crown, had been formerly entitled to vote for the county-members; and makes a general provision for<249> securing the freedom of their election, as well as for preventing undue returns by the sheriff.*
A late respectable historian,17 notwithstanding all the light which has been thrown upon the subject in the present age, declares it still to be his opinion, not only that the knights of counties were coeval with the existence of the English parliament; but that, from the beginning, they were chosen, as at present, in a joint meeting of the rear-vassals, and those who held immediately of the crown.* The former part of this opinion has been already examined. With regard to the latter, it is totally inconsistent with the original plan of the feudal government. But what puts the matter beyond all possibility of doubt, is, that in Scotland, whose constitution, from a similarity of circumstances, as well as from imitation, is extremely analogous to that of England, but who, from the slow progress of arts, has retained a number of her primitive regulations; in Scotland, the original practice has been in-<250>variably continued; and, from the first introduction of county-representatives to the present day, no person who does not hold his lands immediately of the crown, whatever be the extent of his property, has ever been permitted to vote in a county election.†
When a number of crown-vassals had been excused from personal attendance in parliament, on account of the smallness of their fortunes, it might have been expected that some rule would be established, concerning the precise extent of property which gave a title to this concession; and that an exact line of partition would thus be formed between the small barons, or gentry, and the great barons, or nobility. It appears, however, that no such regulation was ever made. The liberty of absence enjoyed by particular members of parliament, seems to have depended, at first, upon the mere will of the sovereign, who never thought of restraining himself with regard to the terms upon which he granted this indulgence. To procure this liberty was the aim<251> of by far the greater part of the crown-vassals; as to prevent the unreasonable extension of it was the great object of the king; and the exemption was, by custom, established in favour of individuals, before any precautions had been suggested for ascertaining its boundaries.‡
The want of a general rule to define the limits, in point of property, between the small and the great barons, appears to have produced an irregularity in this part of the constitution. Those crown-vassals whose attendance in parliament had been dispensed with, continued ever after to be excluded from that assembly, and their posterity remained in the same situation, however great the fortune which they might happen to acquire. On the other hand, those opulent barons who continued, in their own right, to sit in parliament, after the time<252> of Edward the first, retained for the future their seat in the house of peers, notwithstanding all the vicissitudes of their fortune, and whatever might be the degree of poverty to which they were afterwards reduced. Property, the natural source of influence and authority, was, in this manner, detached from political power; while indigence, the parent of servility and dependence, was often invested with privileges which he was not qualified to exercise. The former inconvenience might, in particular cases, be removed by the interposition of the sovereign; who could, at pleasure, create any commoner a member of the house of peers: but the latter admitted of no remedy; since a peer, who had squandered his estate, could not, unless he committed a crime, be deprived of his rank; and since by that rank he was excluded from the usual means of repairing his fortune.*
As there was no regulation concerning the<253> greatest extent of property, from which a baron might be excused from attending in parliament, so there was originally none, with respect to the least, which entitled him to vote for a county-member. All the crown-vassals whatever, whose personal attendance was dispensed with, had of course a title to choose representatives, and were bound by their joint contribution to defray the expence of maintaining them.† But when landed property had undergone so much division, that the possessions of many individuals were become extremely insignificant; more especially after the rear-vassals had been joined with those who held immediately of the crown, in voting for the county-members; the poorer sort of proprietors endeavoured to excuse themselves from contributing to the support of national representatives; and, upon being relieved from that burden, had no longer a pretence for interfering in their election.<254>
By an act of parliament, in the reign of Henry the sixth, it is provided, that the knights of shires shall be chosen by persons residing within the same county, and possessed of lands or tenements, of which the yearly rent, free from all charges, amounts to forty shillings.* By another statute, in the same reign, it is declared, that the voter shall have this estate within the county where the election is made.† Mr. Hume is of opinion, that forty shillings, at that time, making allowance for the alteration in the weight of the coin, and in the price of commodities, was equivalent to near twenty pounds of our present money.
According as parliament had occasion to determine a greater variety of questions, had attained more experience in discussing the business which came before it, the forms of parliamentary procedure became an object of greater attention, and received, as we may easily imagine, a variety of improvements. The appointment of a president, in order to prevent confusion in delivering opinions, to declare the<255> result of a debate, and even, in some measure, to direct the method of handling any question, was a step so necessary in a numerous meeting, that we meet with it as far back as there are any records of the English national council. The lord high steward, as I formerly took notice, was anciently the person who, in absence of the king, presided in that assembly; and when that officer no longer existed, the chancellor, who then rose to the chief consideration in the king’s household, was commonly entrusted with this department. After the division of parliament into two houses, this officer continued in most cases to preside in the house of peers; but in that of the commons, whose deliberations were totally separate, another president became necessary.
From the primitive situation of the commons, who, in all cases, were instructed how to act, they had no opportunity of debating upon any subject; but they required a person to intimate their determinations to the king; and for this purpose they, at first, elected a speaker. The farther the business of that house was extended, the more they ventured to form resolutions without the advice of their con-<256>stituents; the power and privileges of their speaker were enlarged in proportion, and he at length obtained the province of an ordinary president. The first election of this officer, upon record, occurs in the first parliament of Richard the second. From the influence and dignity acquired, in that reign, by the commons, their speaker was exalted to an eminent station; and the persons who enjoyed the office became so conspicuous, as to attract the attention of the public.
One of the principal branches of business which fell under the consideration of parliament was legislation. The first method of conducting a measure of this kind was by a petition from parliament addressed to the king, setting forth some particular grievance or inconvenience, and requesting that it should be removed. To the king belonged the direction both of the executive and judicial powers; and, agreeably to the spirit of a rude age, he was originally under no restraint in the exercise of his prerogative, farther than what might arise from his apprehension of incurring the public displeasure. By a statute it was proposed to limit the former discretionary power of the<257> king, and, out of respect to his dignity, any proposal to this effect was made in the form of a request, that he would consent to the intended regulation. As every new law was, in fact, an innovation of the ancient establishment, it required the agreement of all parties concerned; that is, of the national assembly, including virtually the whole people, and of the king, whose power was to undergo a limitation. When the petition, therefore, had passed the two houses, and had obtained the consent of the king, it became an act of the legislature.
The petitions which had thus been granted, during the course of a parliament, were afterwards digested into the form of a statute; and, as the execution of this task required a degree of legal knowledge, it was devolved upon the principal judges of the kingdom. From the observation, it is said, that mistakes and abuses were committed in a matter of such importance, it was provided, in the reign of Henry the fifth, that the statutes should be drawn up by the judges before the end of each parliament; and, in the reign of Henry the sixth, the present mode of presenting bills to parliament,<258> already digested in the form of a statute, was first introduced.*
For some time after the introduction of the commons into parliament, no notice was taken of them in the character of legislators. The burgesses who composed the first house of commons, were not regarded as the advisers of the crown; and if on any occasion they were capable of extorting a redress of grievances, it was merely by creating an apprehension that they might refuse the supply which was demanded from them. In the beginning of the reign of Edward the third, the commons are mentioned in the character of petitioners; and the statutes are said, in the preamble, to have been ordained “at the request of the commonalty of the realm, by their petition made before the king and his council in the parliament, by the assent of the prelates, earls, barons, and other great men assembled at the said parliament.” The union of the knights of shires, in the same house with the burgesses, contributed quickly to bestow a deliberative voice upon the aggregate body of the commons; and in the reign<259> of Richard the second, we find them interfering in public regulations of the highest importance.* In digesting the= statutes, however, the old stile was continued, until the reign of Edward the fourth; when laws are said to be established by the advice and consent of the lords, at the request of the commons, and by the authority of the same parliament.†
From the primitive method of conducting bills for a new law, in the form of a petition to the king, was derived the custom that they should take their origin from parliament, and that the king should give no opinion concerning them, till they had been approved of in that assembly. As the king had no inclination to limit his own discretionary powers, it was never supposed that a bill for that purpose would be suggested by the crown. All that could be expected from the sovereign, in a matter of this nature, was, that he would be graciously pleased to comply with the desires of his people, communicated to him by the national council: and when a bill had come to be agitated in parliament, it was not yet<260> considered as the request of the nation, and could not, therefore, be regularly presented to the king, for the royal assent, before the two houses had given their authority for that measure.
Such was the original foundation of a maxim, which is now regarded as one of the main pillars of the British constitution; that the king’s negative upon bills shall not be interposed, until they have undergone the final discussion of the two houses of parliament; and, as a consequence of this, that he shall not take notice of any bill depending in parliament, until it shall be communicated to him in the usual and parliamentary manner. The effect of this maxim, in supporting the democratical part of the government, is now universally admitted; but that it was dictated by a regard to the interest of the people, or from the view of encreasing their weight in the exertions of the legislature, there is no reason to believe. It is probable, on the contrary, that the form of procedure above mentioned was thought advantageous, or at least respectful, to the sovereign; as it prevented his being troubled with solicitations to limit his power,<261> until there was an immediate necessity for it. But in reality, this method of conducting the deliberations of the legislature, was not the fruit of any pre-conceived system of policy, nor the result of any claim of right, either upon the part of the king, or of parliament; it arose merely from the nature of the business under consideration, which was most conveniently brought to an issue in that manner; and, as this gave rise to a practice, which was observed with some degree of uniformity, so, in the revolution of ages, the ancient usage, whose utility became daily more observable, was invested with complete legal authority.
It merits attention, however, that what has been observed, concerning the method of ordinary legislation, is not applicable to the imposition of taxes. As the effect of a statute was to ascertain and determine the behaviour of the king, and consequently implied a privilege gained by the people; that of taxation was to bestow some emolument upon the crown, and to lay a correspondent burden upon the nation. An opposite course, therefore, was followed in those two branches of government. The people were understood to be the<262> prime movers in the former; the king, in the latter. The proposal for a new law proceeded upon a petition from parliament to the crown. The proposal for a new tax proceeded upon a request or solicitation of the crown to parliament. Each of these parties having something to bestow which the other wanted, they both became coy and reserved in their turn, and, by their address and perseverance, were enabled to extort reciprocal advantages. When the king was in want of money, he offered his consent to beneficial regulations, upon condition that certain taxes were imposed. When parliament were about to grant supplies to the crown, they took advantage of its necessities, and, as a preliminary article, stipulated the redress of grievances.
Upon this principle, that taxes are granted by parliament, at the desire of the king, is founded a rule, at present, “that the house of commons shall receive no petition for any sum of money relating to the public service, but what is recommended from the crown.” And when a money bill is offered to that house, it is necessary, that the chancellor of the exchequer, or some other<263> officer of the crown, should declare, “that his majesty having been informed of the contents of the said bill, recommends the same to the consideration of the house.”* After this preliminary step, a bill for the imposition of taxes is conducted in the same course, and passes through similar stages, with every other matter which comes under the determination of the legislature.<264>
[1. ]A reference to the migrations of the northern or Gothic nations who eventually destroyed the Roman Empire. The phrase is used by a variety of authors, including Sir William Temple (1628–99), Montesquieu (1689–1755), and Edward Gibbon (1737–94).
[* ]Vide L. L. Aelfred, c. 37.
[2. ]The granting of lands by a feudatory to an inferior.
[* ]The famous statute quia emptores [[Forasmuch as purchasers. For a modern edition of the statute, see Select Charters and Other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward the First, ed. William Stubbs, 9th ed., rev. H. W. C. Davis (Oxford: Clarendon Press, 1921; 1960), 473–74., passed in the 18th of Edward I. This law was farther extended, or at least received a more liberal interpretation, in the reign of Edward III.]]
[3. ]The right of the firstborn to inherit the entire estate.
[4. ]A gift by will of freehold land is called a devise. A gift by will of personal property is called a bequest.
[5. ]The settlement of the succession of a landed estate in a secured inheritance, so that it cannot be bequeathed at pleasure by any one possessor.
[* ]This was the statute of Westminster de donis conditionalibus [[Concerning gifts with conditions attached. See Select Charters, 463., 13 Edward I c. 1. By which it was provided, that an estate left to a person, and the heirs of his body, should in all cases go to the issue, if there was any; if not, should revert to the donor.]]
[6. ]An obsolete term for the separate class of knights which was employed in the administration of English counties and shires. Burgesses were broadly defined as residents of a borough, and toward the end of the medieval period the term was more likely to be used to distinguish one group of privileged townsmen from a less privileged group. Millar’s note cites Thomas Carte, A General History of England, 4 vols. (London, 1747–55). More specifically, see vol. 2, bk. 7 (on Henry III), 60. On Carte, see p. 307, note 14, in the present volume.
[* ]The records of parliament, for several reigns after the Norman conquest, are in a great measure lost, having probably, during the barons wars, been destroyed alternately by each prevailing party, who found them unfavourable to their interest. [Prynne’s preface to Cotton’s Abridgment of Records in the Tower.] This circumstance accounts for the great obscurity in which, after all the labour of antiquaries, the origin of so great a change in the constitution of that assembly still remains. The first introduction of representatives of counties may, with some probability, be traced as far back as the reign of king John. See Carte’s Hist. reign of Edward I.
[† ]In the eleventh year of Edward I. four knights were summoned for each county. [Brady’s Hist. of England.] In the reign of John, there had been a writ issued to the sheriff of Oxfordshire, to return four knights for that county. Carte, in the reign of Edward I.
[7. ]One possessing full municipal rights as a citizen or freeman of a borough, a town possessing municipal organization.
[* ]With respect to the rise of the cities of Italy, see Muratori Antiq. Ital. Med. Aevi, tom. iv. The advancement of the German free cities appears to have been rather posterior to that of the Italian; their chief privileges having been acquired under the princes of the Swabian family. They attained their highest pitch of grandeur in consequence of the famous Hanseatick confederacy, which began in the year 1241. See Abrégé de l’histoire et du droit public d’Allemagne, par M. Pfeffel.
[8. ]Gabriel Daniel (1649–1728), French Jesuit and royal historian, author of the Histoire de France depuis l’éstablissement de la monarchie françoise de la Gaules (1713) and Histoire de la milice françoise (1721). Louis VI, the Gross (r. 1081–1137).
[† ]M. Pfeffel’s History of the reign of Lewis VII.
[† ]Hume’s History of England.
[* ]Sir Henry Spelman declares, that, from the most careful examination, he could find no traces of the representatives of boroughs in parliament, before the latter part of the reign of Henry III. Glossar. v. Parliamentum.
[* ]See Dr. Stuart’s acute researches into the ancient government of Scotland. [[On the introduction of borough representatives by Mary, Queen of Scots, see Gilbert Stuart, The History of Scotland, from the Establishment of the Reformation, till the Death of Queen Mary, 2 vols. (London, 1782), 1:66.]]
[9. ]James I, king of Scotland (r. 1406–37).
[10. ]James VI, king of Scotland (r. 1567–1625) and England (r. 1603–25).
[* ]In the reign of James the first, we meet with two statutes upon this subject. By act 1425, c. 52. it is required, that all the freeholders shall give personal attendance in parliament, and not by a procurator; unless they can prove a lawful cause of their absence. Afterwards, by a statute 1427, c. 102. it is enacted, “that the small barons and free tenants need not come to parliaments, provided that, at the head court of every sheriffdom, two or more wise men be chosen, according to the extent of the shire, who shall have power to hear, treat, and finally to determine all causes laid before parliament; and to chuse a speaker, who shall propone all and sundry needs and causes pertaining to the commons in parliament.”
[† ]This happened about the year 1300. See Pasquier Recherches de la France.
[11. ]The Estates General, first summoned in Paris in 1302.
[12. ]The Hanseatic League was a late medieval federation of north European, especially German, towns, including Hamburg, Bremen, and Lübeck. The Hansa facilitated trade among towns and dominated trade in the north Atlantic and the Baltic Sea. At its height, it encompassed two hundred towns.
[* ]The boroughs are said to have been introduced into the cortes of the different petty kingdoms of Spain, about the same time as in the other nations of Europe. In each of those kingdoms the cortes came to be composed of the nobility, of the dignified ecclesiastics, and the representatives of the cities. But in none of them do we find that the representatives of the small proprietors of land were admitted into those assemblies; though, in the kingdom of Arragon, it appears that the nobility were distinguished into those of the first, and those of the second rank. See Dr. Robertson’s History of Charles V. [[Millar cites William Robertson’s discussion of the cortes in Spain. See the introduction to the History of Charles V, published in a modern edition: The Progress of Society in Europe: A Historical Outline from the Subversion of the Roman Empire to the Beginning of the Sixteenth Century, ed. Felix Gilbert (Chicago: University of Chicago Press, 1972), 114–20.]]
[13. ]That is, the nobility, the upper clergy, and the commons.
[* ]The trading towns, who sent representatives to this parliament, were London, York, Carlisle, Scarborough, Nottingham, Grimesby, Lincoln, Northampton, Lynne, Yarmouth, Colchester, Norwich, Chester, Shrewsbury, Worcester, Hereford, Bristol, Canterbury, Winchester, and Exeter. See Carte’s Hist.
[† ]Some of these boroughs, however, were omitted in the summons to future parliaments. Mr. Browne Willis, from a diligent inspection of such materials, as he could find, to afford any information upon this point, is of opinion, that from about the middle of Edward the third’s reign, to the beginning of that of Edward the sixth, the parliament consisted of a pretty uniform number of boroughs: that, about this last period, it consisted of 126, and at no former time amounted to 130. See Notitia Parliam.
[14. ]Thomas Carte (1686–1754), English Jacobite historian and author of A General History of England (1747–55). For his argument that counties and boroughs do not start to meet in common before the latter part of Edward III’s reign, see vol. 2, bk. 10, 451; on the 1339 parliament and knights of shires pleading to not grant a tax without consent of constituents, see 433.
[* ]In a parliament held in the year 1339, that is, about the middle of the reign of Edward the third, we find the knights of shires pleading that they durst not grant a tax without the consent of their constituents. Carte.
[15. ]Spoken aloud.
[16. ]Browne Willis (1682–1760): English antiquary and author of History of the Counties, Cities, and Boroughs in England and Wales (1715–16), among other works. Both volumes of this work detail the history of counties, boroughs, and towns, and the representatives they sent to every Parliament from Edward VI to 1715, with only the exception of the twelfth of James I.
[* ]7 Henry IV. c. 15. See a farther provision to the same purpose, II Henry IV. c. 1.
[17. ]Millar is referring to Baron George Lyttelton and his History of the Life of King Henry the Second, 3rd ed., 4 vols. (London, 1769). See vol. 3, bk. 2, 220–25, 373–79.
[* ]See Lord Lyttelton’s History of Henry II.
[† ]Holding of the prince of Wales, is in Scotland viewed in the same light with holding of the king.
[‡ ]It seems at one time to have been intended by Edward I. that personal attendance in parliament should be required from every landed proprietor, whose yearly rent was above 20l. This was the rule prescribed to the sheriffs of counties, in summoning the crown-vassals to an assembly held in the eleventh of that king’s reign. This was also the extent of property in Scotland, which distinguished the great barons, or those who were “constrenzied to come to the parliament or general council.” Parl. 1457, c. 75.
[* ]There occurs, in the reign of Edward IV. an act of parliament, declaring, in the case of George Nevil, duke of Bedford, that his title of honour, as a duke, was void and extinguished, in respect of his poverty, by which he was incapable of supporting his dignity.
[† ]With respect to the contribution laid upon the counties for maintaining the members, see Madox Firma-burgi. It was at first levied by the king’s writ; and afterwards by act of parliament, from the time of Richard II. See 12 Rich. II. c. 12.
[* ]8 Henry VI. c. 7.
[† ]10 Henry VI. c. 2.
[* ]See Blackstone’s Commentaries.
[* ]See Gurdon’s History of Parliament.
[† ]See the preamble to those statutes.
[* ]See Hatsell’s Proceedings in the House of Commons. [[Millar’s source for these passages is John Hatsell, Precedents of Proceedings in the House of Commons (London, 1785), 3:142.]]