22

ORIGIN OF THE HOUSE OF LORDS.

the chief abbeys and priories formed here, as in every country of Christendom, an essential part of the Great Council. No other persons of any class whatever had the right to appear there either in person, or by any sort of representative.

Many among the large number of the tenants-in-chief, by reason of their comparative poverty, the distance of their estates from the cities where the Council was usually convened, and other causes, soon ceased to attend or to be expected to attend as regularly as the more powerful and wealthy nobles. These last were soon termed the Greater Barons, and ultimately, the titles of "Peer" and "Baron," which had first been common to all the King's immediate tenants, were, in speaking of the kingdom generally, exclusively applied to the heads of a few great houses, who, largely endowed with lands, and constant members of the Great Council, were clearly distinguishable in rank and in circumstances from the mass of the inferior tenants-in-chief. Traces of the distinction appear earlier than John's reign, but in that king's Great Charter the line is drawn decisively and broadly between these two bodies, which we may safely call, in modern phraseology, the Nobility and the Gentry of the Realm. By the 14th chapter of John's Charter, the king binds himself in order to constitute the General Council for the grant of pecuniary aids, that it shall be summoned thus-"We shall cause the Archbishops, Bishops, Abbots, Earls and greater Barons to be separately summoned by our letters. And we shall cause our sheriffs and bailiffs to summon generally all others who hold of us in chief."

In the earlier part of this clause we see, indisputably, the original of the upper house of our modern Parliament. And as it was thus originally composed of powerful landowners, the English Peerage naturally became an Hereditary Peerage, without any express enactment to that effect. For, the power of devising real estates did not exist for many ages after the grant of the Great Charter, and although alienation with the consent of the lord and upon paying him a fine, was permitted by law, the entire transfer of large estates by such means could seldom or never have occurred, for the simple and obvious reason, that there were no wealthy capitalists to come forward and buy the whole lands of a mighty but impoverished baron at a single bargain. As therefore the estates of the great barons descended generally from heir to heir, and as each heir on coming into possession had the same right as his predecessor to be treated as a great baron of the realm, the idea of hereditary descent became gradually associated with the status of a peer. And this theory of nobility by blood at last prevailed so far, that when our kings began to summon by writ to meet and consult among the barons, many who had no baronial possessions, these also were ultimately, though not without much discrepancy of opinion and irregularity of practice, held to have received an hereditary peerage. And the same attribute of hereditary transmissibility applied also to peerage created by patent. How far the latter part of the clause shows the germ of our House of Commons, requires more consideration. It depends, mainly, on the opinion we form respecting the antiquity of the system of the mass of these inferior land-holders in each county electing some of their number to represent

THE HOUSE OF COMMONS.

KNIGHTS OF THE SHIRE. 23

them in the Great Council. Even before the reign of John, elections of knights of the shire, for purposes connected with the administration of government, can be clearly traced in our records. And during his reign, and in the earlier part of that of Henry III., there are repeated instances of such representation for the purpose of presenting grievances, and of assessing on each individual his fair proportion of a voted subsidy. It seems, therefore, natural and reasonable to suppose that the Great Charter, in ordering the inferior tenants in chief to be summoned generally by the sheriffs, (the presiding officers of the county courts at which the other analogous elections took place,) contemplated the delegation of some individuals of that body to the Great Council to sit in the name of the rest. We find thus the germ of county representation. And although these important provisions were omitted in Henry's Charters, it was under the pretext of reserving the details for maturer deliberation, and the existence of the principle which they embody was clearly taken for granted. In 1245 we find Henry, in the very terms of the Great Charter of John, summoning the great barons singly, and the other tenants in chief generally, by writs to the sheriffs of each county. To a Great Council summoned in 1246, the title of Parliament is for the first time given by the old chronicler, which had previously been applied to any kind of conference, but thenceforth in England became restricted to the Great Council of the nation. In 1254 Henry directs a Parliament to be convened at London, to which the sheriff of each county is to cause to be elected in the county court two good and discreet knights of the shire, whom the men of the shire shall have chosen for this purpose, in the stead of all and each of them, to consider along with the knights of other counties what aid they will grant the king.

Finally, in 1265 in the celebrated Parliament summoned by De Montfort in Henry's name, at which the representation of the boroughs was created, that of the counties was undoubtedly placed or confirmed on its permanent basis, as the writs are still extant by which each sheriff is directed to return two lawful, good, and discreet knights for his shire.

The date cannot be exactly given of the important feature in county representation, of all the freeholders of the county voting in the election of knights of the shire, and not merely those who held their land directly of the Crown by military tenure. It is obvious that this extension of the franchise arose from the circumstance of the knights being elected at the county courts, at which all the freeholders of the Ishire did suit and service. And although opinions vary as to the precise time and mode in which it was effected, it is clear that at a very early period, certainly in the first half of Henry the Third's reign, the county members of England were elected by all the freeholders, without regard to their holding by military or by socage tenure, and without reference to their being or not being immediate tenants of the Crown. Subsequently, a statute of Henry VI. limited the county franchise to such freeholders only as possessed free tenements of the clear annual value of forty shillings.

For the commencement of the other branch of our House of Commons, we must take a date subsequent to the Great Charter of

24

BOROUGH MEMBERS. THE TWO HOUSES.

John. They who obtained that Charter, had designed to give the citizens and burghers of England the same protection from royal rapacity which they exacted for the land-holders. This is evident from the "Articuli Magna Cartæ,"* the rough draft of the barons' stipulations laid before King John at Runnymede, and to which he assented under seal. In the 32nd of these articles, after the provision against the levy of scutages or aids, save by consent of the general council of the realm, were added the important words, "And in like manner be it "done respecting the tallages and aids of and from the city of London "and other cities." Through some unexplained neglect or manœuvre, these important words were omitted when the Charter was formally drawn up: and the cities and towns were left exposed to the exactions of their feudal oppressors, without any protection in the national council. Simon de Montfort was the first statesman who perceived and fully appreciated the growing importance of the commercial middle classes in England. The instances sometimes asserted of borough representation before his time, are both scanty and spurious; but to the Parliament summoned by him in Henry's name, after the battle of Lewes, 1264, two burgesses were returned for every burgh in each county, the writs for which are still preserved. De Montfort soon perished in the vicissitude of civil war; but his reform measure perished not with him. The victorious royalists felt the policy of enfranchising the trading community of the land. Parliaments continued to be summoned on De Montfort's plan, and when at length the Confirmatio Chartarum, in the 25th year of Edward I., by the enactments which have above been quoted, made the consent of Parliament necessary to the levy of talliages, of subsidies, and, in effect, of all taxes, the presence of the burgesses in the Parliaments of England became thenceforward essential and indispensable.

The division of our Parliament into two Houses is foreshadowed in the distinction drawn by John's Charter between the Great Barons and the inferior tenants in chief. Providentially for England the representatives of these last, the knights of the shire, coalesced with the borough representatives; and though some time elapsed before any certain system was maintained, they became the joint representatives of the Commons of England, leaving the Great Barons to form together with the prelates a separate senate and a separate order. The benefits of this to England have been incalculable. She has had the advantage of a nobility, and has not been cursed with a noblesse. One of the proud deficiencies of our language is, that the term "Roturier is untranslateable into English. As Hallam truly and eloquently remarks, "from "the reign of Henry III. at least, the legal equality of all ranks [of "freemen] below the peerage was to every essential purpose as complete as at present. * What is most particular, is that the peerage itself confers no privilege, except on its actual possessor. "The sons of peers, as we well know, are commoners, and totally "destitute of any legal right beyond a barren pre-eminence. There is no part of our constitution so admirable as this equality of civil

66

66

*

* See them at length in "Blackstone on the Charter,” pp. 1, et seq.

1

66

HABEAS CORPUS. TRIAL BY JURY.

25

rights, this isonomia, which the philosophers of ancient Greece only "hoped to find in democratical government. From the beginning our "law has been no respecter of persons. It screens not the gentleman "of ancient lineage from the judgment of an ordinary jury, nor from ignominious punishment. It confers not, it never did confer, those unjust immunities from public burthens which the superior orders arrogated to themselves upon the Continent. Thus while the privi"leges of our peers, as hereditary legislators of a free people, are "incomparably more valuable and dignified in their nature, they are "far less invidious in their exercise than those of any other nobility in "Europe. It is, I am firmly persuaded, to this peculiarly democratical "character of the English monarchy that we are indebted for its long permanence, its regular improvement, and its present vigour. It is a singular, a providential circumstance that in an age when the gradual march of civilisation and commerce was so little foreseen, our "ancestors, deviating from the usages of neighbouring countries, should, "as if deliberately, have guarded against that expansive force which in bursting through obstacles improvidently opposed, has scattered "havoc over Europe."

The last great principles of our Constitution relate to the Administration of Justice. One maxim has been stated in the very words of the Great Charter and the solemn declaration and covenant of the sovereign, as chief magistrate and supreme lord of all judicial proceedings, that justice shall not be sold or delayed, requires no comment. Though, our legal reformers would do well to consider how far the practice of making suitors pay for judicial writs, and exacting court-fees on trials is in accordance with the great constitutional canon; and though "the law's delay" continues as in Shakspeare's time to form one of the curses of humanity to an extent never contemplated at Runnymede. The security from arbitrary imprisonment, and the other great constitutional principle, that of Trial by Jury, claim our most earnest attention, both on account of their universal practical importance, and by reason of the tendency now shown in many quarters to disparage and discard that long-venerated system of trial.

The great words of the Great Charter-worth all the classics to Lord Chatham's mind-which have protected for six centuries, and still protect the personal liberty and property of all freemen, have been already quoted, but never can be too often repeated. "No "freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed or exiled, or any other"wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will "sell to no man, we will not deny or defer to any man justice or " right."

"It is obvious," says Hallam, "that these words, interpreted by any honest court of law, convey an ample security for the two main Frights of civil society. From the era, therefore, of King John's "Charter it must have been a clear principle in our constitution that no man can be detained in prison without trial. Whether courts of justice framed the writ of Habeas Corpus in conformity to the spirit

26

TRIAL BY JURY; NOT ANGLO-SAXON.

"of this clause, or found it already in their register, it became from "that æra the right of every subject to demand it. That writ, ren"dered more actively remedial by the statute of Charles II., but "founded upon the broad basis of Magna Charta, is the principal "bulwark of English liberty; and if ever temporary circumstances or "the doubtful plea of political necessity shall lead men to look on its "denial with apathy, the most distinguishing characteristic of our "constitution will be effaced."

With respect to Trial by Jury, the words of the Charter, "by the lawful judgment of his peers," (per legale judicium parium suorum,) have generally been understood to refer to it, and to establish this mode of trial as the constitutional birthright of every Englishman when prosecuted in the name of the sovereign on any charge of a criminal nature. Some writers, however, of eminent learning, have treated this supposition as a mere vulgar error; and deny that the judicium parium has any reference whatever to trial by Jury. The subject well deserves investigation; and it certainly involves not a mere point of legal archæology or of forensic practice, but a constitutional question of the most solemn order. Were any authority wanting to justify the treating this great judicial question as a constitutional one, I would refer to the greatest of all philosophical and political writers, to

Il maestro di color che sanno,

who tells us that every Constitution is divisible into three branches : -1st, the Deliberative, 2ndly, the Executive, and 3rdly, the Judicial.* Trial by Jury, in the literal sense in which we usually understand it, that is to say, trial by twelve men sworn to return a verdict determining the guilt or innocence of the accused party, was certainly not generally introduced into England at the epoch of the Great Charter. It is to be hoped that few educated men at the present day, except cartoon painters, believe in the silly story of its having been an invention of the great Alfred. The Anglo-Saxon system of criminal judicature had indeed the great principles of trying men publicly before a popular tribunal, and not permitting their fate to be dependent on the judgment or caprice of any officer of the crown. These principles are also essential attributes of Trial by Jury, and the introduction of that system was without doubt facilitated by its being thus congenial to the old feelings and customs of the mass of the population. But an Anglo-Saxon criminal trial took place, not before twelve sworn men, or any other definite number, but in presence of all the assembled members of the hundred or the county court, the latter being the tribunal before which most criminal charges were determined. All the landowners of the county, under the presidency of the sheriff and bishop, formed this court. They were its "Sectatores," or suitors. They all took part, or had a right to take part, in a criminal trial, and they all looked on to see whether the stipulated proof of guilt or innocence was given. I say they looked on, for that term implies more accurately the functions of the county court suitors in a

* Τριὰ μοριὰ τῶν πολιτειῶν πάσων. ἕν μεν το βουλευόμενον περὶ τῶν κοινων. ἕτερόν δε τὸ περὶ τὰς ἄρχας. τριτόν δέ τι τό δίκαζον.—Aristotle, Polit. iv., 11, 1.