in chief were originally electors of Knights of the shire. * If ' it could be established,' say they, that such was the law in 'the reign of Henry III., much difficulty in the investigation of the original constitution of the legislative assemblies of the realm, would be avoided.' There are documents, they afterwards tell us, which afford ground for doubt, whether the ' tenants in chief of the Crown, were not at one time the only suitors of the County Court, or at least the sole electors of the Knights of the shires.' The documents to which they allude, appear to be the petitions and other proceedings in Parliament, under Edward III. and his successors, concerning the payment of wages to Knights of the shires, from which they are inclined to infer, that the origin of the representation of the counties in Parliament, was the impossibility of assembling all the tenants in chief of the Crown, according to the charter ' of John;' and that Knights of the shire originally represented, and were elected by none but tenants in chief. † We are of opinion, that no conclusion whatever can be drawn from the disputes concerning the payment of wages. The Committee lay it down as a principle, that the electors were the persons who were to pay the elected. ' But, if they had looked into a writ of Edward III., which appears to have escaped their notice, though published by Rymer, they would have seen that villeins, as well as freeholders, contributed to the wages of Knights of the shires; and consequently, that persons were charged with the expenses of representatives of counties, who had no voice in the election of those representatives; for nothing is more certain, than that villeins and copyholders were never possessed of the elective franchise in counties. The payment of wages was, in some counties, regulated by particular customs; but there seems to have been no general exemption, except for the demesne lands of Lords of Parliament, occupied by themselves and their bondmen. The earliest writ de expensis, which is of the 42d of Henry III., directs the wages to be levied de communitate comitatus: § and the subsequent petitions and disputes, which have misled the Committee, evidently arose out of the casual or fraudulent omission of the words tam infra libertates quam extra, in the writs issued to the Sheriffs in the time of Edward III. ¶ We are told by the Committee, that in the earliest writs addressed to the Sheriffs for the election of county representatives, * Report, 30, 321, 332, 365, 367, 388. + Report, 150, 188, 367. Brady, Introd. 141. Rymer, 7, 134. the directions are so loose and indefinite, that it is not surprising a variety should have obtained in the practice of different counties, both in the mode of election, and in the levy ' of the wages of the Knights elected.' The Committee seem not to be aware, that elections in the county courts are of a much older date, than the introduction of county members into the Parliament, or Common Council of the realm. The Sheriffs were accustomed to these elections; and therefore, such general expressions as quod elegi facias, were sufficient directions to them how to proceed. A writ of the 17th of John, enjoins the Sheriffs to elect twelve Knights from their respective counties, in the first county court, de ipso comitatu, to inquire into bad customs.* A writ of the 4th of Henry III., directs two Knights to be elected in every county, in pleno comitatu, de voluntate et consilio eorum de comitatu, in order to collect a grant made by the Common Council.+ In the 10th of the same reign, certain counties, which had been aggrieved by their Sheriffs, were ordered to elect two Knights in their county court, by the knights and good men of the county; and to send them to Lincoln to lay their complaints before the Magnates. In the 38th of the same Prince, two Knights were directed to appear before the Council, from every county in England, quos iidem comitatus ad hoc elegerint vice omnium et singulorum, § for the purpose of conferring together, and considering what aid they could afford to the King. After the battle of Lewes, four knights were ordered to be elected in every county, per assensum ejusdem comitatus, to attend a Parliament in London on the Utas of Trinity. Who can doubt, that the knights summoned by the same authority to a subsequent Parliament in the January following, were elected in the same manner-though, in the short entries of the writs to the Sheriffs, which appear on the close rolls, it is merely said, quod venire faciant duos milites singulorum comi tatuum? It is true, that the writs for the election of county members, under Edwards I. and II., and in the early part of Edward III., contain, in general, no other directions to the Sheriff, than quod elegi facias. But this is not the case universally. A writ of the 22d of Edward I. declares that knights are to be elected de consensu comitatus; and other writs of the 28th and 34th of the same Prince, de assensu communitatis comitatus, or per communitatem comitatus. Besides, if there was any uncertainty from the lan *Brady, App. 150. + Brady, Introd. App. 41. Report, 88. Prynne, 2. 22. Fœdera, 1. 442. Prynne, 2. 31, 62.-Brady, Boroughs, App. 26. guage of the writs, it would be removed by the returns of the Sheriffs, which frequently state, that the persons, whose names are contained in their schedules, have been elected by the whole county-in full county court-with consent of the whole county -in pleno comitatu-per totam communitatem comitatus. * Towards the middle of the reign of Edward III., probably in consequence of some tricks of the Sheriffs, the writs became more explicit, and directed the members to be chosen in full county court, de arbitrio et assensu hominum comitatus; or de communi assensu comitatus; And this formula, once introduced, continued in use under Richard II., and till the statute of Henry IV. placed the election of county members under the control of au act of Parliament. † Discarding, then, entirely, the vain surmises of the Committee, and assuming, as an indisputable fact, that county members have been at all times chosen in the county courts, par commune assente de tout le contée, the only question that remains for determination, is the description of persons who constituted the county court, when county members were first elected. On this point, we have entered at such length in one of our former numbers, that we think it unnecessary to enlarge upon it at present. We shall only mention two facts;-the one to show, who were the members of the county court in the reign of Henry III.; and the other to prove, that the tenants of mesne lands were suitors and judges of the county court in the time of the Conqueror. In the 2d of Henry III., we have a writ to the Sheriff of Yorkshire, commanding him to publish the charters in pleno comitatu tuo, convocatis baronibus, militibus et omnibus libere tenentibus ejusdem comitatus;-showing, beyond a doubt, that all freeholders were at that time members of the county court. In the reign of the Conqueror, there was a lawsuit in the county court of Cambridgeshire, between Gundulf, bishop of Rochester, and Sheriff Picot on the part of the King. It was a question about some land, which the Bishop claimed for his see, and Picot for the crown. The latter having taken forcible possession of the land, the Bishop complained to the King, who referred the matter to the homines comitatus, and sent his justiciary into Cambridgeshire to try the question. The county, when assembled, decided in favour of the King; but the justiciary, suspecting the suitors were biassed by their fears of the Sheriff, ordered them to elect twelve ex seipsis, qui quod omnes dixerant, jurejurando confirmarent. The names and * Prynne, 2. 41–47, 57. 63.—3, 143. Vol. xxvi. p. 342. + Prynne, 2. 117–3. 145. Brady, App. 166. places of abode of six of these jurymen are given, and the rest are described as alii sex de melioribus comitatus ; but not one of the persons mentioned by name is to be found in Domesday, among the tenants in chief of the Crown. One of them only, Ordmær of Bellingeham, is to be met with in that record; and he is put down as a subtenant of Earl Alan, holding under him six ploughgates of land, which he had held under Eddeva in the time of King Edward. * With respect to our borough representation, the Committee are decidedly of opinion, that cities and boroughs were on no occasion called upon to assist at legislative meetings before the 49th of Henry III.; and much disposed to believe, that none were originally summoned to Parliament, except cities and boroughs of antient demesne, or in the hands of the king at the time when they received their first summons. We are inclined to doubt the first of these propositions, and convinced that the latter is entirely erroneous. There is some obscurity in the early part of our history with regard to the aids or tallages of cities and boroughs. Under Henry I., and in the early part of Henry II., we find the sheriffs accounting to the king for the donum of the knights and community of the county, as well as for the donum of the cities and boroughs in their bailliwicks, without the slightest indication of the authority by which these grants were made, or of the circumstances under which they took place. † But in later times, we are certain that the aids or tallages of citizens, burgesses and tenants, in antient demesne, were not imposed by the Parliament or Common Council, but obtained from the cities and boroughs individually, by employing the justices in their iters, or by sending special commissioners through the kingdom, to solicit or extort a gift or aid from each city and borough in particular. We have writs of Edward I., thanking the city of London for the liberality of its grants, and appointing commissioners to ask a proportional aid from the other cities and boroughs in his demesnes. This practice was introduced by Henry II., and not entirely abandoned till the reign of Edward II. While it lasted, it is obvious that our kings had no motive to summon their cities and boroughs to the legislature, for the purpose of obtaining money; and therefore, if summoned at all, it is probable that the citizens and burgesses were assembled on particular occasions only, when their assistance or *Thorpe, Regist. Roff. 32-Great Domesday, 195. 6. 1. Fœdera, i. 815-Brady, Boroughs, 8vo. 58. 66. authority was wanted to confirm or establish the measures in contemplation by the government. Those who have derived their notions of the antient state of our cities and boroughs from the mistatements and misrepresentations of Brady, will be inclined to deride our notion of the government deriving influence or authority from places scarcely more than country villages, inhabited by low dependent tradesmen, of a station little better than servile.' Even Madox, who ought to have known better, tells us with the utmost gravity, that boroughs were in their nature plebeian, inhabited by mercantile persons, not exercised in knightly exploits.' But if we look into our antient history with unprejudiced eyes, we shall find that, long before the Conquest, many of our cities and boroughs were, like the cities of Spain during the contest with the Moors, places of strength and importance, inhabited by a martial population, used to arms, and accustomed to take a leading part in the political revolutions of the State. In the wars with the Danes, we frequently find the Bushwara, or banghers, the most forward and active against the invaders. Harold I. owed his crown to the northern thegns, and to the citizens of London, in opposition to all the great men of Wessex. Edmund Ironside was elected king by the witan and the bushwara of London. In the time of Ethelred II., the citizens of Canterbury are mentioned among the suitors or members of the county court. In Domesday, many towns are mentioned that included among their inhabitants persons of the rank of thegns, with privileged jurisdiction. From the same record, it appears that many towns owed military service to the State, both by sea and land; that their inhabitants in some places were associated in gilds, and had common property; and that burgesses, in general, held their lands and tenements in heritage, on paying certain definite dues and rents to their superior lord. After the Conquest, it is probable that, for some time, the cities and boroughs declined in political importance, though, in many instances, they improved in wealth and population. They were viewed with jealousy, as disaffected to the Norman government; and instead of being entrusted with their own defence, castles were built in every place of note, to bridle the inhabitants. The institution of knight service embodied the great mass of landed proprietors in a martial confederacy, unconnected with the towns, which became the chief protection, and consequently the chief power, of the State. Gradually, however, the principal cities recovered their influence. In the civil wars between Stephen and Maud,-in the dissensions during Richard's absence in the Holy Land,-in the short but important strug 5 |