The exorbitant estates conferred by the Norman on his barons and chieftains, remained not long entire and unimpaired. The landed property was gradually shared out into more hands; and those immense baronies were divided, either by provisions to younger children, by partitions among co-heirs, by sale, or by escheating to the king, who gratified a great number of his courtiers by dealing them out among them in smaller portions. Such moderate estates, as they required economy, and confined the proprietors to live at home, were better calculated for duration; and the order of knights and small barons grew daily more numerous, and began to form a very respectable rank or order in the state. As they were all immediate vassals of the crown by military tenure, they were, by the principles of the feudal law, equally entitled with the greatest barons to a seat in the national or general councils; and this right, though regarded as a privilege which the owners would not entirely relinquish, was also considered as a burden which they desired to be subjected to on extraordinary occasions only. Hence it was provided in the charter of King John, that, while the great barons were summoned to the national council by a particular writ, the small barons, under which appellation the knights were also comprehended, should only be called by a general summons of the sheriff. The distinction between great and small barons, like that between rich and poor, was not exactly defined; but, agreeably to the inaccurate genius of that age, and to the simplicity of ancient government, was left very much to be determined by the discretion of the king and his ministers. It was usual for the prince to require, by a particular summons, the attendance of a baron in one parliament, and to neglect him in future parliaments;[*] nor was this uncertainty ever complained of as an injury. He attended when required: he was better pleased on other occasions to be exempted from the burden: and as he was acknowledged to be of the same order with the greatest barons, it gave them no surprise to see him take his seat in the great council, whether he appeared of his own accord, or by a particular summons from the king. The barons by writ, therefore, began gradually to intermix themselves with the barons by tenure; and, as Camden tells us,[**] from an ancient manuscript now lost, that after the battle of Evesham, a positive law was enacted, prohibiting every baron from appearing in parliament, who was not invited thither by a particular summons, the whole baronage of England held thenceforward their seat by writ, and this important privilege of their tenures was in effect abolished. Only where writs had been regularly continued for some time in one great family, the omission of them would have been regarded as an affront, and even as an injury.
* Chancellor West’s Inquiry into the Manner of creating Peers p. 43, 46, 47, 55. ** In Britain. p 122.
A like alteration gradually took place in the order of earls who were the highest rank of barons. The dignity of an earl, like that of a baron, was anciently territorial and official:[*] he exercised jurisdiction within his county: he levied the third of the fines to his own profit: he was at once a civil and a military magistrate: and though his authority, from the time of the Norman conquest, was hereditary in England, the title was so much connected with the office, that where the king intended to create a new earl, he had no other expedient than to erect a certain territory into a county or earldom, and to bestow it upon the person and his family.[**] But as the sheriffs, who were the vicegerents of the earls, were named by the king, and removable at pleasure, he found them more dependent upon him; and endeavored to throw the whole authority and jurisdiction of the office into their hands. This magistrate was at the head of the finances, and levied all the king’s rents within the county: he assessed at pleasure the talliages of the inhabitants in royal demesne: he had usually committed to him the management of wards, and often of escheats: he presided in the lower courts of judicature: and thus, though inferior to the earl in dignity, he was soon considered, by this union of the judicial and fiscal powers, and by the confidence reposed in him by the king, as much superior to him in authority, and undermined his influence within his own jurisdiction.[***] It became usual, in creating an earl, to give him a fixed salary, commonly about twenty pounds a year, in lieu of his third of the fines: the diminution of his power kept pace with the retrenchment of his profit: and the dignity of earl, instead of being territorial and official, dwindled into personal and titular. Such were the mighty alterations which already had fully taken place, or were gradually advancing, in the house of peers; that is, in the parliament: for there seems anciently to have been no other house.
* Spel. Gloss, in voce Comes. ** Essays on British Antiquities. This practice, however, seems to have been more familiar in Scotland and the kingdoms on the continent, than in England. *** There are instances of princes of the blood who accepted of the office of sheriff. Spel. in voce Vicecomes.
But though the introduction of barons by writ, and of titular earls, had given some increase to royal authority, there were other causes which counterbalanced those innovations, and tended in a higher degree to diminish the power of the sovereign. The disuse into which the feudal militia had in a great measure fallen made the barons almost entirely forget their dependence on the crown: by the diminution of the number of knights’ fees the king had no reasonable compensation when he levied scutages, and exchanged their service for money: the alienations of the crown lands had reduced him to poverty: and above all, the concession of the Great Charter had set bounds to royal power, and had rendered it more difficult and dangerous for the prince to exert any extraordinary act of arbitrary authority. In this situation it was natural for the king to court the friendship of the lesser barons and knights, whose influence was no ways dangerous to him, and who, being exposed to oppression from their powerful neighbors, sought a legal protection under the shadow of the throne. He desired, therefore, to have their presence in parliament, where they served to control the turbulent resolutions of the great. To exact a regular attendance of the whole body would have produced confusion, and would have imposed too heavy a burden upon them. To summon only a few by writ, though it was practised and had a good effect, served not entirely the king’s purpose; because these members had no further authority than attended their personal character, and were eclipsed by the appearance of the more powerful nobility, He therefore dispensed with the attendance of most of the lesser barons in parliament; and in return for this indulgence (for such it was then esteemed) required them to choose in each county a certain number of their own body, whose charges they bore, and who, having gained the confidence, carried with them, of course, the authority of the whole order. This expedient had been practised at different times in the reign of Henry III.,[*] and regularly during that of the present king. The numbers sent up by each county varied at the will of the prince:[**] they took their seat among the other peers; because by their tenure they belonged to that order:[***] the introducing of them into that house scarcely appeared an innovation: and though it was easily in the king’s power, by varying their number, to command the resolutions of the whole parliament this circumstance was little attended to in an age when force was more prevalent than laws, and when a resolution, though taken by the majority of a legal assembly, could not be executed, if it opposed the will of the more powerful minority.
*Rot. Glaus. 38. Hen. III. pp. 7. and 12. d.; as also Ret. Claus 12 Hen. III. m. 1. d. Prynne’s Pref. to Cotton’s Abridgment. ** Brady’s Answer to Petyt, from the records, p 151. *** Brady’s Treatise of Boroughs, App. No. 13.
But there were other important consequences, which followed the diminution and consequent disuse of the ancient feudal militia. The king’s expense in levying and maintaining a military force for every enterprise, was increased beyond what his narrow revenues were able to bear: as the scutages of his military tenants, which were accepted in lieu of their personal service, had fallen to nothing, there were no means of supply but from voluntary aids granted him by the parliament and clergy, or from the talliages which he might levy upon the towns and inhabitants in royal demesne. In the preceding year, Edward had been obliged to exact no less than the sixth of all movables from the laity, and a moiety of all ecclesiastical benefices[*] for his expedition into Poictou, and the suppression of the Welsh: and this distressful situation which was likely often to return upon him and his successors, made him think of a new device, and summon the representatives of all the boroughs to parliament. This period, which is the twenty-third of his reign, seems to be the real and true epoch of the house of commons, and the faint dawn of popular government in England. For the representatives of the counties were only deputies from the smaller barons and lesser nobility; and the former precedent of representatives from the boroughs, who were summoned by the earl of Leicester, was regarded as the act of a violent usurpation, had beer, discontinued in all the subsequent parliaments; and if such a measure had not become necessary on other accounts, that precedent was more likely to blast than give credit to it.
* Brady’s Treatise of Boroughs, p. 31, from the records. Heming vol. i. p. 52. M. West. p. 422. Ryley, p. 462
During the course of several years, the kings of England, in imitation of other European princes, had embraced the salutary policy of encouraging and protecting the lower and more industrious orders of the state; whom they found well disposed to obey the laws and civil magistrate, and whose ingenuity and labor furnish commodities requisite for the ornament of peace and support of war. Though the inhabitants of the country were still left at the disposal of their imperious lords, many attempts were made to give more security and liberty to citizens, and make them enjoy unmolested the fruits of their industry. Boroughs were erected by royal patent within the demesne lands; liberty of trade was conferred upon them; the inhabitants were allowed to farm, at a fixed rent, their own tolls and customs,[*] they were permitted to elect their own magistrates; justice was administered to them by these magistrates, without obliging them to attend the sheriff or county court: and some shadow of independence, by means of these equitable privileges, was gradually acquired by the people.[**] The king, however, retained still the power of levying talliage or taxes upon them at pleasure;[***] and though their poverty and the customs of the age made these demands neither frequent or exorbitant, such unlimited authority in the sovereign was a sensible check upon commerce, and was utterly incompatible with all the principles of a free government. But when the multiplied necessities of the crown produced a greater avidity for supply, the king, whose prerogative entitled him to exact it, found that he had not power sufficient to enforce his edicts, and that it was necessary, before he imposed taxes, to smooth the way for his demand, and to obtain the previous consent of the boroughs, by solicitations, remonstrances, and authority. The inconvenience of transacting this business with every particular borough was soon felt; and Edward became sensible, that the most expeditious way of obtaining supply, was to assemble the deputies of all the boroughs, to lay before them the necessities of the state, to discuss the matter in their presence, and to require their consent to the demands of their sovereign, For this reason, he issued writs to the sheriffs, enjoining them to send to parliament, along with two knights of the shire two deputies from each borough within their county,[****] and these provided with sufficient powers from their community to consent, in their name, to what he and his council should require of them.
* Madox, Firma Burgi, p. 21. ** Brady of Boroughs, App. No. I, 2, 3. *** The king had not only the power of talliating the inhabitants within his own demosnes, but that of granting to particular barons the power of talliating the inhabitants within theirs. See Brady’s Answer to Petyt, p. 118. Madox, Hist, of the Exch. p. 518. *** Writs were issued to about one hundred and twenty cities and boroughs.
“As it is a most equitable rule,” says he, in his preamble to this writ, “that what concerns all should be approved of by all; and common dangers be repelled by united efforts;”[*] a noble principle, which may seem to indicate a liberal mind in the king, and which laid the foundation of a free and an equitable government.
After the election of these deputies by the aldermen and common council, they gave sureties for their attendance before the king and parliament: their charges were respectively borne by the borough which sent them; and they had so little idea of appearing as legislators,—a character extremely wide of their low rank and condition,[**]—that no intelligence could be more disagreeable to any borough, than to find that they must elect, or to any individual than that he was elected, to a trust from which no profit or honor could possibly be derived.[***] They composed not, properly speaking, any essential part of the parliament: they sat apart both from the barons and knights,[****] who disdained to mix with such mean personages: after they had given their consent to the taxes required of them, their business being then finished, they separated, even though the parliament still continued to sit, and to canvass the national business.[*****] And as they all consisted of men who were real burgesses of the place from which they were sent, the sheriff, when he found no person of abilities or wealth sufficient for the office, often used the freedom of omitting particular boroughs in his returns; and as he received the thanks of the people for this indulgence, he gave no displeasure to the court, who levied on all the boroughs, without distinction, the tax agreed to by the majority of deputies.[******]
* Brady of Boroughs, p. 25, 33, from the records. The writs of the parliament immediately preceding, remain: and the return of knights is there required, but not a word of the boroughs: a demonstration that this was the very year in which they commenced. In the year immediately preceding, the taxes were levied by a seeming free consent of each particular borough, beginning with London. Brady of Boroughs, p. 31, 32, 33, from the records. Also his Answer to Petyt, p. 40, 41. ** Reiiquia Spel. p. 64. Prynne’s Pref. to Cotton’s Abridg. and the Abridg. passim. *** Brady of Boroughs, p. 59, 60. **** Brady of Boroughs, p. 37, 38, from the records, and Append. p. 19. Also his Append, to his Answer to Petyt, Record. And his gloss. in verb. Communitas regn. p. 33. Abridg. p. 14. ****** Bradv of Boroughs, p. 52, from the records. There is even an instance in the reign of Edward III., when the king named all the deputies. Brady’s Answer to Petyt, p. 161. If he fairly named the most considerable and creditable burgesses, little exception would be taken; as their business was not to check the king, but to reason with him, and consent to his demands. It was not till the reign of Richard II. that the sheriffs were deprived of the power of omitting boroughs at pleasure. See Stat. at large, 5th Richard II. cap. iv.
The union, however, of the representatives from the boroughs gave gradually more weight to the whole order; and it became customary for them, in return for the supplies which they granted, to prefer petitions to the crown for the redress of any particular grievance, of which they found reason to complain. The more the king’s demands multiplied, the faster these petitions increased both in number and authority; and the prince found it difficult to refuse men whose grants had supported his throne, and to whose assistance he might so soon be again obliged to have recourse. The commons, however, were still much below the rank of legislators.[*] 4 Their petitions, though they received a verbal assent from the throne, were only the rudiments of laws: the judges were afterwards intrusted with the power of putting them into form. and the king, by adding to them the sanction of his authority, and that sometimes without the assent of the nobles, bestowed validity upon them. The age did not refine so much as to perceive the danger of these irregularities. No man was displeased that the sovereign, at the desire of any class of men, should issue an order which appeared only to concern that class; and his predecessors were so near possessing the whole legislative power, that he gave no disgust by assuming it in this seemingly inoffensive manner. But time and further experience gradually opened men’s eyes, and corrected these abuses. It was found that no laws could be fixed for one order of men without affecting the whole; and that the force and efficacy of laws depended entirely on the terms employed in wording them. The house of peers, therefore, the most powerful order in the state, with reason, expected that their assent should be expressly granted to all public ordinances:[**]
* See note D, at the end of the volume. ** In those instances found in Cotton’s Abridgment, where the king appears to answer of himself the petitions of the commons, he probably exerted no more than that power, which was long inherent in the crown, of regulating matters by royal edicts or proclamations.
But no durable or general statute seems ever to have been made by the king from the petition of the commons alone, without the assent of the peers. It is more likely that the peers alone without the commons, would enact statutes, and in the reign of Henry V., the commons required, that no laws should be framed merely upon their petitions, unless the statutes were worded by themselves, and had passed their house in the form of a bill.[*]
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