"non-resident ” It is evident the franchises in these charters could never have constitutionally extended to persons within the cities or boroughs. The grant of exemption from toll was usually contained in all borough charters; if limited to" inhabitant householders" within the borough paying scot and lot, a reasonable cause may be assigned; for the contributing to the public exigences in one place would be an adequate consideration, and be a release from such burdens in others; the inhabitants of which would, in the same manner, be reciprocally exonerated. If resident and non-resident persons could be indiscriminately admitted as burgesses, and, as such, entitled to exemption from toll, the consideration for it would cease to exist; and any one place might exercise the power of admitting nonresident freemen to such an extent, as to destroy the right to toll in all other places, and materially interfere with a valuable fiscal receipt. The grants of exclusive jurisdiction must, from its very nature, have been confined to the inhabitants, and could not extend to non-residents, otherwise, by their general admission as freemen, the king's jurisdiction might have been excluded. over an unlimited number of his subjects. JOHN. 1199-1216. Franchises in not have exresidents. charters could tended to non distinct from boroughs. It has been assumed by those, whose minds are incapable of Merchant guilds overcoming the delusions of fancy, that the members of the "merchant guilds" and the "burgesses," were one and the same body 12; but such guilds were distinct from the city and 12 The term "Guild" meant only originally the common payment made by the inhabitants of the several districts into which the country was divided, whether of counties, hundreds, cities, or boroughs, without reference to any idea of incorporation; because, generally speaking, the part of the county not included in any privileged district, was called the "geldable." And the term "geldavit," in Domesday, is applied to all the several classes of districts. In A. D. 1308, there is a distinct instance of the use of the word in this sense. Thus the king, desirous of granting that Frampton, in Gloucestershire, should be a free borough, directs by writ of "ad quod damnum," that it should be inquired to what the aforesaid town is "gildable" to the king, and what it renders with certainty. The franchises and the guildable are also contradistinguished from each other in the Sixth Year Book (fol. 6 B, pl. 30, M. T.). Error is assigned, for that the sheriff commanded the bailiffs of the franchise to make all the pannel, when one of the three towns was in the guildable; in which town the sheriff ought himself to make the array. So likewise in Stat. 19 Henry VII., c. 23, the merchants of the Hanse are described as the merchants of the Hanse of Almain, having a house in the city commonly called " Guillhallda Teutonicorum." JOHN. borough rights, dependant upon usages peculiar to those institutions, and were altogether distinct from the county and borough jurisdictions established under the common law 13. 1199-1216. Partial enjoy ment of borough franchises. Freedom of ap prentices had from corporate 14 ་ Thus, in the charter which Stephen granted to the inhabitants of Chichester ", he confirmed to them "all the customs of their borough and merchant guild, as they had them in the time of King William." In 22 Henry II., the burgesses of Totness paid a fine of five marks "for setting up a guild without authority 15." This fact irresistibly establishing the distinction of a mere guild from a borough, for Totness was a borough in the time of William I. 99 At the period when the "liberi homines" of the common law were admitted in accordance with ancient principles, the burgesses were in the habit of admitting "strangers" to the partial enjoyment of the borough rights, for the purpose of trading, having previously required a pecuniary contribution, and this perhaps was the original cause of the confusion in the different classes of freemen 16. It has been erroneously assumed that apprentices had their not their origin origin from corporate principles, but the fact is otherwise. It is from the combined effect of the common and statute law, and from no other source, that apprentices have derived their existence 17. principles. Interference of mayor, not in respect of any corporate right. A villain could enter into no The interference of the mayor or chief officer of the borough in the binding of apprentices, was not in respect of any corporate right, but as a precautionary measure for the purpose of ascertaining, whether the apprentice was "free" or "bond," so that neither the lord nor the burgesses might be damnified by any improper admission. A villain could enter into no contract with his lord whilst contract with his villainage subsisted; therefore the relation of master and apprentice would have negatived the inference of that of lord. 13 Domesday, fol. 3, 280. Inspex. Chart. Wallingford, 51 Henry III., Tur. Lond. Memb. 10, n. 4. 2 Hearne, Lib. Niger, 816. Mad. Fir. Bur. 95, 96. 4 Rymer, Foed. 382. 6 Year Book, fol. 6 B, pl. 30. Stat. 15 Henry VI. c. 6; 21 Henry VI. c. 10. Pet. Parl. 10 Henry VI. n. 9, 417. Stat. 11 Henry VII. c. 9; 19 Henry VII. c. 23; 27 Henry VIII. c. 26. 14 M. and S. Hist. Boroughs, 320. 15 Mad. Exch. 391. 16 M. and S. Hist. Boroughs, 117. 17 Ken. Par. Ant. Gloss. verb. App. Lib. Ass. 83 B, fol. 18. Stat. 5 Richard II. Liber Niger, fol. 66. Stat. 17 Henry IV. Pet. Parl. 8 Henry VI. n. 20, p. 354. Stat. 26 Henry VIII. c. 16; 5 Eliz. c. 4; 13 and 14 Car. II. Anon. 1 Lev. 12. M. and S. Hist. Boroughs, 235, 698, 722 -727, 762-765, 1099, 1100. lord and villain. If the apprentice served seven years unclaimed, it was clear he could not be a villain, because he must have resided away from his lord for that period, and such an absence was, of itself, a bar to the writ "de nativo replegiando:" a deed therefore which established these facts, was, by the principles of the common law, an irresistible proof of freedom. JOHN. 1199-1216. Leet juries bound freeman;" and to present apmen. The jury at the leet were bound to present every person, who had served such an apprenticeship, as a "freeman ;" and accordingly we find, upon the leet rolls at Stockbridge, Yarmouth, and Lynn, persons presented as "freemen by apprenticeship." In fact, the language, principles, and practice of the common law, whether relating to the poor or the rich, the peasant or the judge, the resiant or the vagrant, the civil or criminal jurisdiction, the duties in the county at large, or the particular privileges in cities, boroughs, or franchises, all had one common origin or object,-local permanent residence. prentices as free Borough privi leges applied to local permanent residence. SECTION IV. HENRY III., October 19, A. D. 1216,-November 16, A. D. 1272. 1. General Observations. 3. Legislative Assemblies. 2. The Great Charters. 1. General Observations. HENRY III. 1216-1272. of the country. Upon the accession of Henry, the country was in a dis- Distracted state tracted state, arising not only from the minority of the sovereign, but from the disaffection of a considerable party, who had sworn allegiance to Lewis, son of the King of France. These circumstances induced every possible effort to conciliate the country, by confirming the ancient national franchises. The weakness and misconduct of the king, his necessities, Misconduct of and the distress of the country proceeding from various causes, with the power and ambition of individuals, involved him in great difficulties, urged him to arbitrary conduct, and gave rise to that opposition which controlled his powers, produced a civil war, at one time almost annihilated the royal authority, and finally led to the gradual establishment of that system of representative government, which partially prevailed in this F Henry. HENRY III. reign, and of which the constitution of the legislature afterwards formed an essential part. 1216-1272. Publication of legislative acts. Prerogative of the crown. Continued existence of councils. Situation of Henry, different from that of his predecessors. A royal charter was the usual form in which legislative acts had been announced to the people, and it is very questionable whether, up to this period, any absolute or controlling power, except "brute force," existed since the Anglo-Saxon dynasty, which interfered with the absolute exercise of the royal prerogative. The uncivilized state of society being such, that force was more prevalent than laws, and a resolution, though taken by a majority of a legal assembly, could not have been executed, if it opposed the will of the more powerful minority. The crown, not being enabled to have its commands carried into execution, without the co-operation of the great landed proprietors, it became imperative, when new laws were to be enacted, that the most influential men should be assembled, in order to obtain their acquiescence and consequent support. That "councils " always existed from the accession of William I., no doubt can exist; but there is no record to prove that the members attended in a direct representative capacity, or that the king was exclusively confined to summon any particular class. The great necessities of Henry III., and his frequent recurrence to his people to supply those necessities, placed him in a different situation from that in which many of his predecessors, and particularly William I. and his sons, had been. They seldom, perhaps never, had occasion to seek for voluntary aid, by convening an assembly for pecuniary purposes, which might peaceably stipulate for a redress of grievances, and purchase concessions from their sovereign by a pecuniary grant'. The assemblies, convened by Henry previous to 1258, appear to have often aimed at such concessions, but generally failed in obtaining more than promises to observe the Great Charter, and generally to administer duly the law of the land. But nothing so much accelerated the operation of causes, crown dependant tending to constitutional changes, as the separation of Normandy from England, the former having produced a revenue sufficient to support itself, and also contributed to the dignity of the kings of England, who frequently resided there for lengthened periods. Loss of Nor mandy made the on England. 11 Rep. Dig. Peer. 97. 1216-1272. By the loss of Normandy, the kings of England, instead of HENRY III. having a power and influence in Normandy, which, in its consequences, increased their power and influence in England, were induced to rely on their subjects in England, even for the preservation of their other territories in France; and though their possession of those territories tended to lessen the power of the French monarchy, and enabled the kings of England to invade the territories of the kings of France, yet in England that possession rendered the crown more dependant on the people, by the expenses which its preservation continually required. 2. The Great Charters. Henry III. One of the first acts of the advisers of Henry, was to issue First charter of a charter in his name. It is in a great measure a transcript of the charter of John, but it omits the clause respecting scutage and aid not to be assessed "nisi per commune concilium regni nostri ;" neither were the full privileges of elections in the clergy, nor the liberty of going out of the kingdom without the royal consent, renewed 3. It appears extraordinary that the deviations in this first charter of Henry, and indeed in a great degree in all his subsequent charters, from the charter of John, should have been so little noticed. the Great Charter. The non-insertion of the provisions that no scutage, nor any omissions from aid (except in three specified cases), should be assessed, unless by the authority of the common council of the realm; that the aids to be assessed in the three specified cases should be reasonable aids; and that aids to be required of the city of London should also be reasonable aids, (which seems to be A copy of this charter is printed in the authorized collection of the Statutes from a charter under seal, preserved in the archives of Durham Cathedral. 21 Rymer, 215. 2 Hume, 246. 3 From a letter addressed in the king's name to the justiciar of Ireland, announcing the death of his father, and his own accession to the throne, it is stated, "Convenerunt apud Gloucestř plures regni nostri magnates, episcopi, abbates, comites, et barones, qui patri nostro viventi semper astiterunt fideliter, et devotè, et alii quamplurimi; applaudentibus clero et populo, &c., puplice fuimus in regem Anglie inuncti, et coronati, fidelitate et homagio omnium illorum nobis exhibitis." From whence it appears, that the word "magnates "included the "prelates," "earls," and "barons," and excluded those termed "alii quamplurimi." Foedera, N. E. tom. i. 145; et vide ib. 146. |