feudal tenure, which, in a short time, was bartered for pecuniary commutation, under the name of scutage. This, together with the increasing necessities of the crown, and the proportionate independence of the barons, soon brought the people at large, especially the trading part of them, into some consideration. The policy of the crown raised a counterbalance to the power of the barons, and by giving the people consequence, at the same time erected for itself a tower of strength, and a treasury for supplies. It was from this policy probably, that Hen. 2. gave charters and immunities to the people, which meeting with no disturbance from the military genius of the 1st Richard, solely occupied in foreign wars, and strengthened by the weakness of king John, prepared the way for that consequence to which they were arisen at the latter end of the reign of Hen. 3. The extreme indigence of this monarch towards the latter period of his reign, made it necessary for him to look out for new sources for supply. Hitherto that burden had fallen upon the land; and the towns, secure through their humility, had escaped taxation. But many of them being now grown wealthy by industry and commerce, began to contribute their share to the public expense. Talliage, which was a tax upon personal property as scutage was upon land, was adopted about this period, and was probably the first and active cause of summoning delegates from those places, who might have the appearance of granting what they were not strong enough to refuse. The crown indeed would sometimes take it Rev. p. 71. without attending to this form; but the statute de tallagio non concedendo, made in the 25 E. 1. restrained this tyranny, and secured the continuation of that right, which, though solemnly established by Hen. 3. would probably soon have grown into disuse. Sim. p. 3. Boden de 1. c. 8. Sincl. Hist. Hume, v. 2. 1777, p. 68. Carew's Pref. p. 8. Though it seems probable that during the Saxon ara, the people had a share in legislation, yet it is from the Parliamen tary repre Pryn. Bre. Par. Red. pt. 2. p. 3. ties collect the authori ed. A. D. 1225. The king's council not a parlia ment. end of the reign of Hen. 3. only that it is possible for Date of a lawyer to date the commencement of parliamentary representation. The antiquary may indulge himself in sentation. amusing speculations upon a parliament anterior to the 49 Hen. 3. but there are no records which shew that the people had a right to any voices in matters of state, much less in the form of the present constitution, as some have contended.* The crown had always indeed a council, to which it might summon, by writ, any persons whose advice it wanted; but this was casual, at the will of the crown, and for its own benefit. The summons was personal, and arose out of the prerogative, which called for service from the subject at such times, and in such manner, as became convenient to the crown, and did not authorize or depend upon any elective delegation by the people. The charter of king John bound him only to summons, by writ under his seal, the archbishops, bishops, abbots, earls, and greater barons, and does not extend to milites, or any inferior description of persons. This council consisted as well of clergy as of secular persons, who might not happen to be lords or barons of the realm, as, namely, his treasurer, chancellor of the exchequer, judges, justices in eyre, justices assigns, barons of his exchequer, clerks, secretaries of his council, and sometimes his serjeants at law, with such other officers and persons whom he chose to summon; and they were to assist the king and barons. The writs of summons to these assistants differ from the writs to the peers in this respect, that the latter are summoned to advise, &c. nobiscum ac cum "cateris" proceribus, &c. whereas in the writs to the former, “ cæteris,” which implies equality, is omitted. Modus tenendi parliamentum, which seems to be the principal authority relied upon by Elsing, Hackwell, Sadler, Harrington, Dugdale, Lambert, Petyt, Lord Coke, and others, to prove a Parliament existing in the reign of Edward the Confessor, is now universally admitted a fabrication of no earlier date than the reign of Edw. 3, and probably of as late a date as the 31 H. 6. Pryn. Par. Red. pt. 2, 173. 3 pt. 230. Plea for Lords, p. 164 to 214. Har. Co. Lit. 69. b. n. 2. Selden rejects it as spurious. Seld. Tit. Hon. 2d edit. pt. 2. c. 5. s. 26. Sim. p. 4. moued to such coun Who sum cil as assist ants. Pryn. Parl. Red. pt. 1. 341, & seq. Writs of summons, 22 E. 1. Sim p. 5. It is not to be supposed that the plan of representation was so matured at this early period, as to exist in as perfect a manner as at this day. There are no writs of summons extant, except those which issued to the cinque ports, until the 22d year of E. 1. which are entered in the clause rolls at large; but by the memorandums of the writs issued before that period, for electing knights, and pt. 2. p. 31. entered on the parliament rolls, at a small distance from the entry of the writs of summons to the spiritual and temporal lords, the sheriffs are only generally directed to cause to come, &c. duos, milites, &c. without specifying whether they were in any manner, and how, to be elected. And the subsequent part of the entry in the 22 E. 1. relating to citizens, burgesses, and barons of the cinque ports, is, "In formâ prædicta scribitur civibus Eborum, &c. and "cæteris burgis Angliæ quod mittant duos, &c. Item "mandatum est baronibus, &c. de quinq; portuum, &c." without specifying how they should proceed; though indeed it is plain, that the cities, boroughs, and cinque ports, could not concur in doing what was required of them without unanimity or suffrage, which implies election. We may conjecture, however, from the form of the writs issued to elect members for the cinque ports, which are preserved from the 49 Hen. 3. and which are addressed "baronibus ballivis portus sui de Sandivico, &c." [and not to the constable of Dover, or warden of the cinque ports] that the first writs for electing citizens and burgesses were directed to the cities and boroughs nominatim, and not to the sheriff of the county. And this conjecture seems the more probable, that, in the writs of 22 E. 1. directed to the sheriff to cause knights to be elected for the county, no direction is given for electing citizens or burgesses. It is not till the following year, that the writ to the sheriff orders him to cause to be elected two citizens for every city, and two burgesses for every borough, within his county. Carew, overlooking the records of writs issued to the cinque ports, inclines to think that there was no representation of cities and boroughs 'Writs di rected to cities, &c. nominatim. Citizens & burgesses not sum moned till 23 E. 1. till the 22 E. 1. but only of the counties by knights of Sim. p. 6. the shire. Hume and Brady also fix it at this period. Mr. Prynne concludes with great probability, that the representation of cities and boroughs is coeval with that of the cinque ports, and that the writs have been lost. Carew's Brady on 1777. p. 68. tation of The writs therefore of 22 E. 1. are the first authentic Represendocuments from whence we learn that the general system counties. of representation for counties existed as at this time. The writs of that period are as full, as to the essential* qualifications of eligibility for county members, as any subsequent writ up to this day; for they require that such persons should be knights of the same county for which they are chosen, and that they should come with full power to consult and consent for themselves and the whole commonalty of the county. Much however as yet depended Brad. 125. upon the sheriff, who was not expressly under any controul as to the manner, time, or place of election, which often. gave his arbitrary nomination the force of election. Causes assigned. Sim. p. 7. Par. Writ, It would be both tedious and unnecessary to observe upon the various terms and phrases of the writ between the 22 E. 1. and this period, otherwise than as they tend Variation to illustrate some point of representation, or some material in the writ. alteration or improvement of it. In some writs there are special causes assigned for calling a Parliament, as in the 25 E. 1. to confirm the great charter: in others, the num- Pryme's ber of delegates is varied. In the 45 E. 3. the freedom of election is by implication restrained both as to the number and the objects of choice; for by the writ of that year, only half of the number of knights, citizens, and burgesses, who had come to parliament the year preceding, are summoned. So also in the 26 E. 3. but half the number is summoned; but in both cases, it is expressly stated in the summoned. writ to have been done for the benefit of the subject: those Statutes have made alterations which will afterwards be noticed. pt. 2. p. 31. 35. Ibid. 107. Objects re strained. number of members Sim. p. 8. p. 92. p. 223, & seq. Why 9 boroughs were not summoned. in the 45 E. 3. expressing it to be "for saving labour "and expence," and in 26 E. 3. " to take as few as possi"to "ble from the harvest." These therefore never were or Ibid. pt. 3, could be drawn into precedents for narrowing the right of representation. Between the reigns of E. 1. and E. 4. both inclusive, though we find that writs were issued to 170 cities, boroughs, and cinque ports, the number of members who are actually returned varied prodigiously. Nine of the boroughs to which writs were sent, took no notice of the precept of the sheriff, whe consequently returned “ quod ballivi libertatis nullum dederunt respon"sum," and were never afterwards summoned during that period. Twenty of them never returned members more than once, and out of the whole number of 170, it appears there were in all sixty places which did not invariably return members, owing either to the sheriff not issuing his precept to them; a practice which prevailed till the 23 Hen. 6. as appears by the recital of that statute; or from the poverty of the place,* or the negligence of the returning officer. Nolumus clause. In the 47 E. 3. a most material alteration took place in the writ, by inserting in it an express prohibition (which is usually called from the words of the writ, the "nolumus” clause) against chusing sheriffs" aut aliquem alterius "conditionis quem superius specificat." This alteration arose from an act, either of the whole or part of the legislature, in the preceding year; it being a matter of doubt * Members of parliament were formerly paid by their constituents. The wages were, according to Lord Coke, for a knight of a county, four shillings per diem, and for a citizen or burgess, two shillings; which, by the writ set forth by him, is pro expensis suis veniendo ad parliament' prædict'. ibid. morando et exinde ad propria redeundo. 4 Inst. 48. See also the recital of stat. 35 H. 8. c. 11. the bill for the knights and burgesses in Wales concerning the payment of their fees and wages.-See the list of those cities, boroughs, &c. which were created and disfranchised, and of those which were afterwards restored by different sovereigns, Appendix, No. xlii & xliii, p. 43 and 47. |