to heirs, not to the eldest son only, as lands, but to all the sons;
saving that the younger were to take some addition, for distinction sake.
While these coats were granted by the king alone, and that for real
service done, and consequently were not too common; and while the custom
of wearing compleat armour remained, and the office of high constable
(the judge in such matters) continued, the gentry were very curious in
preserving these distinctions, and vindicating them from usurpation. But
as the military disposition of our gentry hath greatly subsided since the
loss of the provinces in France, and the kings at arms have assumed the
power of giving coats, nicety in these respects hath long since expired;
and now, as in a commercial country, especially, it should be, education
and behaviour are sufficient criterions of a gentleman.
I shall therefore say no more of them, as distinguished from the rest
of the commonalty, but observe, that of these there are two ranks,
_knights_ and _esquires_, or gentlemen. For though we now make a
distinction between these two last, the old law knew none, nor is it now
a misnomer, in a writ of pleadings, to stile an esquire a gentleman, or
the contrary. The holding of a knight’s fee did not make a man of that
order, but there were particular ceremonies required for the purpose. For
the original design of the institution of _dubbing knights_, was that,
after a person had, by performing military exercises, shewn that he had
properly accomplished himself, and was capable of that honourable service
in the field, in his proper person, he should, by a public solemnity,
be openly declared so. No wonder, then, that the highest nobility, the
sons of kings, nay kings themselves, thought this title an addition to
their dignity, as it was then an infallible proof, that they had not
degenerated from the virtue of their ancestors[272].
But among knights there were some of a more distinguished kind (I do
not mean to speak of particular orders, such as those of the garter and
others) called _Bannerets_, as knights in general were made, upon their
proving themselves by exercises capable of service. These were never
made but for an actual exploit in war, and then were dubbed with great
solemnity under the royal banner. Their distinction was bearing a little
banner, annexed to the wooden part of their lance, adjoining the iron
point; as, originally, every man who had a whole knight’s fee, or the
amount thereof in parts of fees, was obliged to serve in person, and was
not allowed a proxy, but in cases of necessity every such person was
obliged to appear upon the king’s summons, to shew himself qualified, and
to receive the order of knighthood. This power continued in the king,
even after the military tenants were discharged of personal attendance
on sending another, or paying escuage, and came to be considered as a
profitable fruit of the king’s seignory, and was frequently used as an
expedient to raise money, by obliging the unqualified, or those who had
no mind to the expence or fatigue of attending, to compound[273].
This right of composition was established by act of parliament, the
first of Edward the Second, which likewise fixes the estate the persons
summoned must have at twenty pounds a year, the quantity of a knight’s
fee; twenty pounds a year was indeed the valuation of a knight’s fee at
the time of the conquest, but by change of times, in Edward the Second’s
reign, it may well be esteemed forty; so that by this act a man who
had half a knight’s fee was liable to be summoned. This was one of the
unhappy means made use of by king Charles the First to procure money
when he quarrelled with his parliament. He was sensible, indeed, of a
difference in the value of money, and therefore summoned none but such
as had forty pounds a-year; but had he paid due attention to its real
rise, he should have summoned none under an hundred and twenty. For in
Edward’s reign a pound in money was a real pound in silver, whereas in
Charles’s, it was but a third part, and so the proportion was to sixty
pound sterling, and sixty more is the least rise that can be allowed for
the improvements in the value of lands, by the intermediate increase of
commerce. No wonder, therefore, that his people looked upon it as an
unsupportable grievance. Accordingly, in the 17th of his reign, the act
of Edward the second was repealed, and in Ireland, it vanished with the
tenures on which it depended[274].
The great change in the nature of knighthood happened in the reign of
James the First. The Plantagenets never created any persons such but with
a view to military merit, except their judges. The Tudors extended it to
persons who had served them well in civil stations, but so sparingly, and
to persons of such evident merit, that it still was an encouragement to
those that deserved well of the public. But James, who had a passion for
creating honours, poured forth his knighthoods, without regard to desert,
with so lavish an hand, confirming them for money frequently on wealthy
traders, and others without any apparent public merit, that thereby, as
also by creating an order of hereditary knights, called _baronets_, a
knighthood soon lost the badge of merit it before had carried.
The occasion of creating baronets was this. On the escheat of the six
counties in Ulster, they were planted with colonies of Scotch and
English; and, as it was necessary to support a standing army there, for
some years after, for the defence of the infant settlements, and money
was wanting for that purpose, as, in that reign, it always was for every
other, this scheme of creating an order of hereditary knights, to take
place after the barons, was fixed upon for that purpose. At first it
had some aspect towards military service, for each of them was obliged
to maintain so many soldiers in the plantation, for a limited time; and
to make the honour more valuable, and to get the better terms for it in
the first plan, it was provided, that no more than two hundred should
be originally created; and when any of them failed, no new ones to be
created in their room. But it was soon seen that these new knights,
when they had once attained their dignities, might not duly perform the
services they engaged for. The maintaining the soldiers, therefore,
was commuted into a sum paid to the king, who undertook to do it; and
had he been a good œconomist, it would have been a prudent precaution,
but whatever sums he could lay his hands on were always at the mercy of
his reigning favourite. He was, therefore, obliged to depart from his
intended limitation, and to exceed his number; and yet, after all, the
service was not done so well as it should have been. His successors have
followed his example, in adding to the number, which now is certainly
unlimited[275].
Next to the gentry, or military order, in estimation among the northern
nations stood the _citizens_ and _burghers_, that is, the trading
part of the nation, whether merchants or artificers. These were for
some ages held in a very low light, none of the conquerors or their
defendants applying themselves to such occupations. They were, indeed,
at first, allowed certain privileges and enjoyed their own laws, under
the inspection of magistrates appointed by the king, known by the name
of _Præpositi_, _Provosts_, or some other equivalent title. But these
liberties did not last long. The turbulent temper of the times, the
frequent competitions for the throne, and the many rebellions of the
great lords, occasioned the towns and their inhabitants to be taken in
war, one after another; and the persons so taken, were, by the prevailing
_Jus Gentium_ of these ages reduced to servitude; not, however to a
condition so low as the _villeins_, who were, properly, the slaves of
those people, and had no property but at the will of their lords. However
it is, no state, except one absolutely barbarous, could subsist without
artizans; and as commerce is the parent of wealth, and as neither it,
nor arts, could thrive where property is not, in some sort, secure, the
lords were in some degree, by their own interest, obliged to relinquish
to these people the seizing of their goods at pleasure, as they practised
towards their villeins, and to leave them at liberty to make regulations
among themselves for the benefit of trade[276].
Thus far, then, they were free, but their servitude consisted in their
being liable to taxes, or _tailliages_, at the will of the lords, who, if
they were wise, laid on such only as they could well bear; but miserable
was their condition when they fell into the hands of one who was needy
and rapacious; for, then, they were often fleeced, even to ruin and
depopulation. This induced the wiser lords, who saw the consequences,
and how much the arbitrary exertion of such powers must, in the end,
hurt themselves, to restrain their own powers; and, by degrees, by
granting them _charters_, to emancipate them. They formed them into
_bodies corporate_, confirmed the right of making _bye-laws_, which had
been permitted them, and granted them other privileges, or _franchises_,
as they called them, from their being infranchised, in derogation to
former regal or seignoral rights. But for their total freedom they were
indebted to parliament, which, seeing the bad use king John made of his
right in this kind, provided thus in Magna Charta, _Civitas London habeat
omnes libertates suas antiquas, & consuetudines suas. Præterea volumus
& concedimus, quod omnes aliæ civitates, burgi, & villæ, & barones de
quinque portubus, & omnes alii portus, habeant omnes libertates & liberas
consuetudines suas._ And another chapter restrains the king from laying
new and evil tolls, and confines him to the antient customs[277].
Hitherto, however, the citizens and burgesses were no part of the body
politic, and were not represented in parliament. But as, with their
security, their wealth and consequence encreased, about, or before the
year 1300, they were admitted to that privilege; that they might, in
conjunction with the knights of shires, be a check on the overgrown
power of the mighty lords; and about that time also the same privilege
was allowed to this class of people in the other nations of Europe also.
This right was confirmed, and so I may say, the _house of commons_, in
its present condition, formed by the statute of the thirty-fourth of
Edward the First. _Nullum tallagium vel auxilium, per nos vel heredes
nostros, in regno nostro ponatur, seu levetur, sine voluntate & assensu
archiepiscoporum, episcoporum, comitum, baronum, militum, burgensium,
& aliorum liberorum communium de regno nostro_; where we see, not only
the burgesses, but free yeomen also had representatives, namely, by
their voting along with the knights of the shires, according to the
maxim of that wise prince, _Quæ ad omnes pertinent, ab omnibus debent
tractani_[278].
Having come to the constitution of the house of commons as it stands
at present, it will not be amiss to look back, and see how far its
present form agrees with, or differs from the feudal principles. These
principles, we have seen, were principles of liberty; but not of liberty
to the whole nation, nor even to the conquerors; I mean, as to the point
I am now upon, of having a share in the legislation. That was reserved
to the military tenants, and to such of them only as held immediately
of the king. And the lowest and poorest of these also, finding it too
burthensome to attend these parliaments, or assemblies, that were held
so frequently, soon, by disuse, lost their privileges; so that the whole
legislature centered in the king, and his rich immediate tenants, of his
barony. And it is no wonder the times were tempestuous, when there was no
mediator, to balance between two so great contending powers, and were it
not that the clergy, who, though sitting as barons, were in some degree
a separate body, and had a peculiar interest of their own, performed
that office, sometimes, by throwing themselves into the lighter scale,
the government must soon have ended either in a despotical monarchy, or
tyrannical oligarchy.
Such were the general assemblies abroad in the feudal countries, but
such were not strictly the _wittenagemots_ of the Saxons, for their
constitution was not exactly feudal. I have observed that the most of
their lands were allodial, and very little held by tenure. The reason
I take to be this: On their settlement in Britain they extirpated, or
drove out, the old inhabitants, and therefore, being in no danger from
them, they were under no necessity of forming a constitution compleatly
military. But then those allodial proprietors being equally freemen, and
equal adventurers with these who had lands given them by tenure, if any
in truth had such, they could not be deprived of their old German rights,
of sitting in the public assemblies. From the old historians, who call
these meetings _infinita multituda_, it appears that they sat in person,
not by representation[279].
This constitution, however, vanished with the conquest, when all the
lands became feudal, and none but the immediate military tenants were
admitted. We find, indeed, in the fourth year of William the First,
twelve men summoned from every county, and Sir Matthew Hale will have
this to be as effectual a parliament as any in England[280]; but, with
deference to so great an authority, I apprehend that these were not
members of the legislature, but only assistants to that body. For if
they were part thereof, how came they afterwards to be discontinued till
Henry the Third’s time, where we first find any account of the commons?
The truth seems to be, that they were summoned on a particular occasion,
and for a purpose that none but they could answer. On his coronation he
had sworn to govern by Edward the Confessor’s laws, which had been some
of them reduced into writing, but the greater part were the immemorial
custom of the realm; and he having distributed his confiscations, which
were almost the whole of England, into his follower’s hands, who were
foreigners, and strangers to what these laws and customs were, it was
necessary to have them ascertained; and, for this purpose, he summoned
these twelve Saxons from every county, to inform him and his lords what
the antient laws were. And that they were not legislators, I think
appears from this, that when William wanted to revive the Danish laws,
which had been abolished by the Confessor, as coming nearer to his own
Norman laws, they prevailed against him, not by refusing their consent,
but by tears and prayers, and adjurations, by the soul of Edward his
benefactor.
Thus William’s laws were no other than the Confessor’s, except that
by one new one, he dextrously, by general words, unperceived by the
English, because couched in terms of the foreign feudal law, turned all
the allodial lands, which had remained unforfeited in the proprietor’s
hands, into military tenures. From that time, until the latter end of
Henry the Third’s reign, our parliaments bore the exact face of those on
the continent in that age; but then, in order to do some justice to the
lesser barons, and the lower military tenants, who were entitled by the
principles of the constitution to be present, but disabled by indigence
to be so in person, they were allowed to appear by representation,
as were the boroughs about the same time, or soon after. The persons
entitled to vote in these elections for knights of the shire, were, in
my apprehension, only the minor barons, and tenants by knight service,
for they were the only persons that had been omitted, and had a right
before, or perhaps with them, the king’s immediate socage tenants _in
capite_.
But certain it is, the law that settled this had soon, with regard to
liberty, a great and favourable extension, by which all freemen, whether
holding of the king mediately or immediately, by military tenure or
otherwise, were admitted equally to vote; and none were excluded from
that privilege, except villeins, copy-holders, and tenants in antient
demesne. That so great a deviation from the feudal principles of
government happened in so short a time, can only be accounted for by
conjecture. For records, or history, do not inform us. I shall guess
then, that the great barons, who, at the end of Henry the Third’s reign,
had been subject to forfeiture, and obliged to submit, and accept of
mercy, were duly sensible of the design the king had in introducing this
new body of legislators, and sensible that it was aimed against them,
could not oppose it. But, however, they attempted, and for some time
succeeded to elude the effects of it, by insisting that all freemen,
whether they held of the king, or of any other lord, should be equally
admitted to the right of the representation.
The king, whose profession was to be a patron of liberty, Edward the
First, could not oppose this; and as he was a prince of great wisdom
and foresight, I think it is not irrational to suppose, that he might
be pleased to see even the vassals of his lords, act in some sort
independently of them, and look immediately to the king their lord’s
lord. The effect was certainly this, by the power and influence their
great fortunes gave them in the country, the majority of the commons
were, for a long time, more in the dominion of the lords than of the
crown; though, if the king was either a wise or a good prince, they were
even then a considerable check upon the too mighty peers.
Every day, and by insensible steps, their house advanced in reputation
and privileges and power; but since Henry the Seventh’s time, the
progress has been very great. The encrease of commerce gave the commons
ability to purchase; the extravagance of the lords gave them an
inclination, the laws of that king gave them a power to alienate their
intailed estates; insomuch that, as the share of property which the
commons have is so disproportionate to that of the king and nobles, and
that power is said to follow property, the opinion of many is, that,
in our present situation, our government leans too much to the popular
side; while others, though they admit it is so in appearance, reflecting
what a number of the house of commons are returned by indigent boroughs,
who are wholly in the power of a few great men, think the weight of the
government is rather oligarchical[281].
LECTURE XXIII.
_The privilege of voting for Knights of the Shire—The business
of the different branches of the Legislature, distinct and
separate—The method of passing laws—The history and form of the
legislature in Ireland._
The house of commons growing daily in consequence, and the socage tenants
having got the same privilege of voting for the knights of the shire as
the military ones, it naturally followed, that every free person was
ambitious of tendering his vote, and thereby of claiming a share in the
legislature of his country. The number of persons, many of them indigent,
resorting to such elections, introduced many inconveniences, which are
taken notice of, and remedied by the statute of the eighth of Henry the
sixth chapter the seventh which recites, that of late “elections of
knights had been made by very great, outrageous, and excessive numbers
of people of which the most part was of people of small substance, and
of no value, whereof every one of them pretended a voice equivalent
with the most worthy knights and esquires, whereby manslaughter, riots,
batteries, and divisions among the gentlemen and other people of the
same counties shall very likely rise and be, unless convenient and due
remedy be provided in this behalf;” and then it provides that, “no
persons should have votes, but such as have lands or tenements to the
value of forty shillings a year above all charges.” And so the law stands
at this day, though by the change in the value of money, by the spirit
of this statute, no person should have a vote that could not dispend
ten pounds a year at least. Such a regulation, were it now to be made,
would, certainly, be of great advantage both to the representers and
represented; but there is little prospect of its ever taking place: And
if it should be proposed, it would be looked upon as an innovation,
though in truth, it would be only returning to the original principles of
the constitution[282].
Our legislature, then, consisting of three distinct parts, the king,
lords, and commons, in process of time, each of them grew up to have
distinct privileges, as to the beginning particular businesses. Thus all
acts of general grace and pardon take their rise from the king; acts
relative to the lords and matters of dignity, in that house; and the
granting of money in the commons. How the commons came by this exclusive
right, as to money matters, is not so easy to determine. Certain it is
that, originally, the lords frequently taxed themselves, as did the
commons the commonalty, without any communication with each other; but
afterwards, when it was judged better to lay on general taxes, that
should equally affect the whole nation, these generally took their rise
in that house which represented the bulk of the people; and this, by
steadiness and perseverance, they have arrogated so far into a right
peculiar to themselves, as not to allow the lords a power to change the
least title in a money bill. As to laws that relate not to these peculiar
privileges, they now take their rise indifferently either in the lords or
commons, and when framed into a bill, and approved by both, are presented
to the king for his assent; and this has been the practice for these two
or three hundred years past[283].
But the ancient method of passing laws was different, and was not only
more respectful to, but left more power in the crown. The house which
thought a new law expedient, drew up a petition to the king, setting
forth the mischief, and praying that it might be redressed by such or
such a remedy. When both houses had agreed to the petition, it was
entered on the parliament-roll, and presented to the king, who gave such
answer as he thought proper, either consenting in the whole, by saying,
_let it be as is desired_, or accepting part and refusing or passing
by the rest, or refusing the whole by saying, _let the ancient laws be
observed_, or in a gentler tone, _the king will deliberate_. And after
his answer was entered on the roll, the judges met, and on consideration
of the petition and answer, drew up the act, which was sent to be
proclaimed in the several counties[284].
Lord Coke very justly observes that these acts drawn up by men, masters
of the law, were generally exceedingly well penned, short, and pithy,
striking at the root of the grievance, and introducing no new ones;
whereas the long and ill penned statutes of later days, drawn up in the
houses, have given occasion to multitudes of doubts and suits, and often,
in stopping one hole, have opened two. However, notwithstanding this
inconvenience, there was good cause for the alteration of method. The
judges, if at the devotion of the court, would sometimes, make the most
beneficial laws elusory, by inserting a salvo to the prerogative, though
there was none in the king’s answer; whereas, by following the present
course, the subjects have reduced the king to his bare affirmative or
negative, and he has lost that privilege, by the disuse of petitions,
of accepting that part which was beneficial to himself, and denying the
remainder[285].