Chapter 10

FOOTNOTES:[a]The fullest account we possess of these domestic transactions from 1294 to 1298 is in Walter Hemingford, one of the historians edited by Hearne, p. 52-168. They have been vilely perverted by Carte, but extremely well told by Hume, the first writer who had the merit of exposing the character of Edward I. See too Knyghton in Twysden's Decem Scriptores, col. 2492.[b]Walsingham, in Camden's Scriptores Rer. Anglicarum, p. 71-73.[c]Edward would not confirm the charters, notwithstanding his promise, without the words, salvo jure coronæ nostræ; on which the two earls retired from court. When the confirmation was read to the people at St. Paul's, says Hemingford, they blessed the king on seeing the charters with the great seal affixed; but when they heard the captious conclusion, they cursed him instead. At the next meeting of parliament, the king agreed to omit these insidious words, p. 168.[d]The supposed statute, De Tallagio non concedendo, is considered by Blackstone (Introduction to Charters, p. 67) as merely an abstract of the Confirmatio Chartarum. By that entitled Articuli super Chartas, 28 Edw. I., a court was erected in every county, of three knights or others, to be elected by the commons of the shire, whose sole province was to determine offences against the two charters, with the power of punishing by fine and imprisonment; but not to extend to any case wherein a remedy by writ was already provided. The Confirmatio Chartarum is properly denominated a statute, and always printed as such; but in form, like Magna Charta, it is a charter, or letters patent, proceeding from the crown, without even reciting the consent of the realm. And its "teste" is at Ghent, 2 Nov. 1297; Edward having engaged, conjointly with the count of Flanders, in a war with Philip the Fair. But a parliament had been held at London, when the barons insisted on these concessions. The circumstances are not wholly unlike those of Magna Charta.The Lords' Committee do not seem to reject the statute "de tallagio non concedendo" altogether, but say that, "if the manuscript containing it (in Corpus Christi College, Cambridge) is a true copy of a statute, it is undoubtedly a copy of a statute of the 25th, and not of a statute of the 34th of Edward I." p. 230. It seems to me on comparing the two, that the supposed statute de tallagio is but an imperfect transcript of the king's charter at Ghent. But at least, as one exists in an authentic form, and the other is only found in an unauthorized copy, there can be no question which ought to be quoted.[e]Hody (Treatise on Convocations, p. 126) states the matter thus: in the Saxon times all bishops and abbots sat and voted in the state councils, or parliament, as such, and not on account of their tenures. After the Conquest the abbots sat there not as such, but by virtue of their tenures, as barons; and the bishops sat in a double capacity, as bishops, and as barons.[f]Hody, p. 128.[g][NoteI.][h]Madox, Baronia Anglica, p. 138. Dialogus de Scaccario, 1. i. c. 17. Lyttelton's Henry II. vol. ii. p. 217. The last of these writers supposes, contrary to Selden, that the earls continued to be governors of their counties under Henry II. Stephen created a few titular earls, with grants of crown lands to support them; but his successor resumed the grants, and deprived them of their earldoms.In Rymer's Fœdera, vol. i. p. 3, we find a grant of Matilda, creating Milo of Gloucester earl of Hereford, with the moat and castle of that city in fee to him and his heirs, the third penny of the rent of the city, and of the pleas in the county, three manors and a forest, and the service of three tenants in chief, with all their fiefs; to be held with all privileges and liberties as fully as ever any earl in England had possessed them.[i]Selden's Works, vol. iii. p. 713-743.[k]Lyttelton's Henry II. vol. ii. p. 212.[m]Hody on Convocations, p. 222, 234.[n]Lib. ii. c. 9.[o]Hody and Lord Lyttelton maintain these "barons of the second rank" to have been the sub-vassals of the crown; tenants of the great barons to whom the name was sometimes improperly applied. This was very consistent with their opinion, that the commons were a part of parliament at that time. But Hume, assuming at once the truth of their interpretation in this instance, and the falsehood of their system, treats it as a deviation from the established rule, and a proof of the unsettled state of the constitution.[p][NoteII.][q]M. Paris, p. 785. The barons even tell the king that this was contrary tohischarter, in which nevertheless the clause to that effect, contained in his father's charter, had been omitted.[r]Henry II., in 1175, forbad any of those who had been concerned in the late rebellion to come to his court without a particular summons. Carte, vol. ii. p. 249.[s]Upon the subject of tenure by barony, besides the writers already quoted, see West's Inquiry into the Method of creating Peers, and Carte's History of England, vol. ii. p. 247.[t]Hody on Convocations, p. 293.[u]Brady, Introduction to History of England. Appendix, p. 43.[x]Brady's History of England, vol. i. Appendix, p. 182.[y]Brady's Introduction, p. 94.[z]Hist. of Common Law, vol, i. p. 202.[a]This assembly is mentioned in the preamble, and afterwards, of the spurious laws of Edward the Confessor; and I have been accused of passing it over too slightly. The fact certainly does not rest on the authority of Hoveden, who transcribes these lawsverbatim; and they are in substance an ancient document. There seems to me somewhat rather suspicious in this assembly of delegates; it looks like a pious fraud to maintain the old Saxon jurisprudence, which was giving way. But even if we admit the fact as here told, I still adhere to the assertion that there is no appearance that these twelve deputies of each county were invested with any higher authority than that of declaring their ancient usages. Any supposition of a real legislative parliament would be inconsistent with all that we know of the state of England under the Conqueror. And what an anomaly, upon every constitutional principle, Anglo-Saxon or Norman, would be a parliament of twelve from each county! Nor is it perfectly manifest that they were chosen by the people; the word summoneri fecit is first used; and afterwards, electis de (notin) singulis totius patriæ comitatibus. This might be construed of the king's selection; but perhaps the common interpretation is rather the better.William, the compiler informs us, having heard some of the Danish laws, was disposed to confirm them in preference to those of England; but yielded to the supplication of the delegates, omnes compatriotæ, qui leges narraverant, that he would permit them to retain the customs of their ancestors, imploring him by the soul of King Edward, cujus erant leges, nec aliorum exterorum. The king at length gave way, by the advice and request of his barons, consilio et precatu baronum. These of course were Normans; but what inference can be drawn in favour of parliamentary representation in England from the behaviour of the rest? They were supplicants, not legislators.[b]2 Prynne's Register, p. 16.[c]Brady's Introduction, Appendix, pp. 41 and 44. "The language of these writs implies a distinction between such as were styled barons, apparently including the earls and the four knights who were to come from the several counties ad loquendum, and who were also distinguished from the knights summoned to attend with arms, in performance, it should seem, of the military service due by their respective tenures; and the writs, therefore, apparently distinguished certain tenants in chief by knight-service from barons, if the knights so summoned to attend with arms were required to attend by reason of their respective tenures in chief of the king. How the four knights of each county who were thus summoned to confer with the king were to be chosen, whether by the county, or according to the mere will of the sheriff, does not appear; but it seems most probable that they were intended by the king as representatives of the freeholders of each county, and to balance the power of the hostile nobles, who were then leagued against him; and the measure might lead to conciliate the minds of those who would otherwise have had no voice in the legislative assembly." Report of Lords' Committee, p. 61.This would be a remarkable fact, and the motive is by no means improbable, being perhaps that which led to the large provisions for summoning tenants in chief, contained in the charter of John, and afterwards passed over. But this parley of the four knights from each county, for they are only summoned ad loquendum, may not amount to bestowing on them any legislative power. It is nevertheless to be remembered that the word parliament meant, by its etymology, nothing more; and the words, ad loquendum, may have been used in reference to that. It is probable that these writs were not obeyed; we have no evidence that they were, and it was a season of great confusion very little before the granting of the charter of Henry III.[d]Brady's Hist. of England, vol. i. Appendix, p. 227.[e]2 Prynne, p. 23.[f]"This writ tends strongly to show that there then existed no law by which a representation either of the king's tenants in capite or of others, for the purpose of constituting a legislative assembly, or for granting an aid, was specially provided; and it seems to have been the first instance appearing on any record now extant, of an attempt to substitute representatives elected by bodies of men for the attendance of the individual so to be represented, personally or by their several procurators, in an assembly convened for the purpose of obtaining an aid." Report, p. 95.[g]2 Prynne, p. 27.[h]12 Ric. II. c. 12. Prynne's 4th Register.[i]Pinkerton's Hist. of Scotland, vol. i. p. 120, 357. But this law was not regularly acted upon till 1587. p. 368.[k]What can one who adopts this opinion of Dr. Brady say to the following record? Rex militibus, liberis hominibus, ettoti communitaticomitatus Wygorniæ tam intra libertates quam extra, salutem. Cum comites, barones, milites, liberi homines, et communitates comitatuum regni nostri vicesimam omnium bonorum suorum mobilium, civesque et burgenses et communitates omnium civitatum et burgorum ejusdem regni, necnon tenentes de antiquis dominicis coronæ nostræ quindecimam bonorum suorum mobilium nobis concesserunt. Pat. Rot. 1 E. II. in Rot. Parl. vol. i. p. 442. See also p. 241 and p. 269. If the word communitas is here used in any precise sense, which, when possible, we are to suppose in construing a legal instrument, it must designate, not the tenants in chief, but the inferior class, who, though neither freeholders nor free burgesses, were yet contributable to the subsidy on their goods.[m]Madox, Firma Burgi, p. 99 and p. 102 note Z.[n]Prynne's 2nd Register, p. 50.[o]Carte's Hist. of England, ii. 250.[p]The present question has been discussed with much ability in the Edinburgh Review, vol. xxvi. p. 341. [NoteIII.][q]Wilkins, p. 71.[r]Burgensis Exoniæ urbis habent extra civitatem terram duodecim carucatarum: quæ nullam consuetudinem reddunt nisi ad ipsam civitatem. Domesday, p. 100. At Canterbury the burgesses had forty-five houses without the city, de quibus ipsi habebant gablum et consuetudinem, rex autem socam et sacam; ipsi quoque burgenses habebant de rege triginta tres acras prati in gildam, suam. p. 2. In Lincoln and Stamford some resident proprietors, called Lagemanni, had jurisdiction (socam et sacam) over their tenants. But nowhere have I been able to discover any trace of municipal self-government; unless Chester may be deemed an exception, where we read of twelve judices civitatis; but by whom constituted does not appear. The word lageman seems equivalent to judex. The guild mentioned above at Canterbury was, in all probability, a voluntary association: so at Dover we find the burgesses' guildhall, gihalla burgensium. p. 1.Many of the passages in Domesday relative to the state of burgesses are collected in Brady's History of Boroughs; a work which, if read with due suspicion of the author's honesty, will convey a great deal of knowledge.Since the former part of this note was written, I have met with a charter granted by Henry II. to Lincoln, which seems to refer, more explicitly than any similar instrument, to municipal privileges of jurisdiction enjoyed by the citizens under Edward the Confessor. These charters, it is well known, do not always recite what is true; yet it is possible that the citizens of Lincoln, which had been one of the five Danish towns, sometimes mentioned with a sort of distinction by writers before the Conquest, might be in a more advantageous situation than the generality of burgesses. Sciatis me concessisse civibus meis Lincoln, omnes libertates et consuetudines et leges suas, quas habuerunt tempore Edwardi et Will. et Henr. regum Angliæ, et gildam suam mercatoriam de hominibus civitatis et de aliis mercatoribus comitatus, sicut illam habuerunt tempore predictorum, antecessorum nostrorum, regum Angliæ, melius et liberius. Et omnes homines qui infra quatuor divisas civitates manent et mercatum deducunt, sint ad gildas, et consuetudines et assisas civitatis, sicut melius fuerunt temp. Edw. et Will. et Hen. regum Angliæ. Rymer, t. i. p. 40 (edit. 1816).I am indebted to the friendly remarks of the periodical critic whom I have before mentioned for reminding me of other charters of the same age, expressed in a similar manner, which in my haste I had overlooked, though printed in common books. But whether these general words ought to outweigh the silence of Domesday Book I am not prepared to decide. I have admitted below that the possession of corporate property implies an elective government for its administration, and I think it perfectly clear that the guilds made by-laws for the regulation of their members. Yet this is something different from municipal jurisdiction over all the inhabitants of a town. [NoteIV.][s]Madox, Hist. of Exchequer, c. 17.[t]Madox, Firma Burgi, p. 1. There is one instance, I know not if any more could be found, of a firma burgi before the Conquest. It was at Huntingdon. Domesday, p. 203.[u]Madox, p. 12, 13.[x]Id. p. 21.[y]I have read somewhere that this charter was granted in 1101. But the instrument itself, which is only preserved by an Inspeximus of Edward IV., does not contain any date. Rymer, t. i. p. 11 (edit. 1816). Could it be traced so high, the circumstance would be remarkable, as the earliest charters granted by Louis VI., supposed to be the father of these institutions, are several years later.It is said by Mr. Thorpe (Ancient Laws of England, p. 267), that, though there are ten witnesses, he only finds one who throws any light on the date: namely, Hugh Bigod, who succeeded his brother William in 1120. But Mr. Thorpe does not mention in what respect he succeeded. It was asdapifer regis; but he is not so named in the charter. Dugdale's Baronage, p. 132. The date, therefore, still seems problematical.[z]This did not, however, save the citizens from paying one hundred marks to the king for this privilege. Mag. Rot. 5 Steph. apud Madox, Hist. Exchequer, t. xi. I do not know that the charter of Henry I. can be suspected; but Brady, in his treatise of Boroughs (p. 38, edit. 1777), does not think proper once to mention it; and indeed uses many expressions incompatible with its existence.[a]Blomefield, Hist of Norfolk, vol. ii. p. 16, says that Henry I. granted the same privileges by charter to Norwich in 1122 which London possessed. Yet it appears that the king named the port reeve or provost; but Blomefield suggests that he was probably recommended by the citizens, the office being annual.[b]Madox, Firma Burgi, p. 23. Hickes has given us a bond of fellowship among the thanes of Cambridgeshire, containing several curious particulars. A composition of eight pounds, exclusive, I conceive, of the usual weregild, was to be enforced from the slayer of any fellow. If a fellow (gilda) killed a man of 1200 shillings weregild, each of the society was to contribute half a marc; for a ceorl, two oræ (perhaps ten shillings); for a Welshman, one. If however this act was committed wantonly, the fellow had no right to call on the society for contribution. If one fellow killed another, he was to pay the legal weregild to his kindred, and also eight pounds to the society. Harsh words used by one fellow towards another, or even towards a stranger, incurred a fine. No one was to eat or drink in the company of one who had killed his brother fellow, unless in the presence of the king, bishop, or alderman. Dissertatio Epistolaris, p. 21.We find in Wilkins's Anglo-Saxon Laws, p. 65, a number of ordinances sworn to by persons both of noble and ignoble rank (ge eorlisce ge ceorlisce), and confirmed by king Athelstan. These are in the nature of by-laws for the regulation of certain societies that had been formed for the preservation of public order. Their remedy was rather violent: to kill and seize the effects of all who should rob any member of the association. This property, after deducting the value of the things stolen, was to be divided into two parts; one given to the criminal's wife if not an accomplice, the other shared between the king and the society.In another fraternity among the clergy and laity of Exeter every fellow was entitled to a contribution in case of taking a journey, or if his house was burned. Thus they resembled, in some degree, our friendly societies; and display an interesting picture of manners, which has induced me to insert this note, though not greatly to the present purpose. See more of the Anglo-Saxon guilds in Turner's History, vol. ii. p. 102. Societies of the same kind, for purposes of religion, charity, or mutual assistance, rather than trade, may be found long afterwards. Blomefield's Hist. of Norfolk, vol. iii. p. 494.[c]See a grant from Turstin, archbishop of York, in the reign of Henry I., to the burgesses of Beverley, that they may have theirhanshus(i.e. guildhall) like those of York, et ibi sua statuta pertractent ad honorem Dei, &c. Rymer, t. i. p. 10, edit. 1816.[d]Madox, Firma Burgi, p. 189.[e]Idem, passim. A few of an earlier date may be found in the new edition of Rymer.[f]Lyttelton's History of Henry II., vol. ii. p. 170. Macpherson's Annals of Commerce, vol. i. p. 331.[g]Macpherson, p. 245.[h]Id. p. 282.[i]Cives Lundinenses, et pars nobilium qui eo tempore consistebant Lundoniæ, Clitonem Eadmundum unanimi consensu in regem levavere. p. 249.[k]Chron. Saxon. p. 154. Malmsbury, p. 76. He says the people of London were become almost barbarians through their intercourse with the Danes; propter frequentem convictum.[m]Londinenses, qui sunt quasi optimates pro magnitudine civitatis in Angliâ. Malmsb. p. 189. Thus too Matthew Paris: cives Londinenses, quos propter civitatis dignitatem et civium antiquam libertatem Barones consuevimus appellare. p. 744. And in another place: totius civitatis cives, quos barones vocant. p. 835. Spelman says that the magistrates of several other towns were called barons. Glossary, Barones de London.A singular proof of the estimation in which the citizens of London held themselves in the reign of Richard I. occurs in the Chronicle of Jocelyn de Brakelonde (p. 56—Camden Society, 1840). They claimed to be free from toll in every part of England, and in every jurisdiction, resting their immunity on the antiquity of London (which was coeval, they said, with Rome), and on its rank as metropolis of the kingdom. Et dicebant cives Lundonienses fuisse quietos de theloneo in omni foro, et semper et ubique, per totam Angliam, à tempore quo Roma primo fundata fuit, et civitatem Lundoniæ, eodem tempore fundatam, talem debere habere libertatem per totam Angliam, et ratione civitatis privilegiatæ quæ olim metropolis fuit et caput regni, et ratione antiquitatis. Palgrave inclines to think that London never formed part of any kingdom of the Heptarchy. Introduction to Rot. Cur. Regis. p. 95. But this seems to imply a republican city in the midst of so many royal states, which seems hardly probable. Certainly it seems strange, though I cannot explain it away, that the capital of England should have fallen, as we generally suppose, to the small and obscure kingdom of Essex. Winchester, indeed, may be considered as having become afterwards the capital during the Anglo-Saxon monarchy, so far as that it was for the most part the residence of our kings. But London was always more populous.[n]Drake, the historian of York, maintains that London was less populous, about the time of the Conquest, than that city; and quotes Hardynge, a writer of Henry V.'s age, to prove that the interior part of the former was not closely built. Eboracum, p. 91. York however does not appear to have contained more than 10,000 inhabitants at the accession of the Conqueror; and the very exaggerations as to the populousness of London prove that it must have far exceeded that number. Fitz-Stephen, the contemporary biographer of Thomas à Becket, tells us of 80,000 men capable of bearing arms within its precincts; where however his translator, Pegge, suspects a mistake of the MS. in the numerals. And this, with similar hyperboles, so imposed on the judicious mind of Lord Lyttelton, that, finding in Peter of Blois the inhabitants of London reckoned at quadraginta millia, he has actually proposed to read quadringenta. Hist. Henry II., vol. iv. ad finem. It is hardly necessary to observe that the condition of agriculture and internal communication would not have allowed half that number to subsist.The subsidy-roll of 1377, published in the Archæologia, vol. vii., would lead to a conclusion that all the inhabitants of London did not even then exceed 35,000. If this be true, they could not have amounted, probably, to so great a number two or three centuries earlier. But the numbers given in that document have been questioned as to Norwich upon very plausible grounds, and seem rather suspicious in the present instance. [NoteV.][o]This seditious, or at least refractory character of the Londoners, was displayed in the tumult headed by William Longbeard in the time of Richard I., and that under Constantine in 1222, the patriarchs of a long line of city demagogues. Hoveden, p. 765. M. Paris, p. 154.[p]Hoveden's expressions are very precise, and show that the share taken by the citizens of London (probably the mayor and aldermen) in this measure was no tumultuary acclamation, but a deliberate concurrence with the nobility. Comes Johannes, et fere omnes episcopi, et comites Angliæ eâdem die intraverunt Londonias; et in crastino prædictus Johannes frater regis, et archiepiscopus Rothomagensis, et omnes episcopi, et comites et barones, et cives Londonienses cum illis convenerunt in atrio ecclesiæ S. Pauli.... Placuit ergo Johanni fratri regis, et omnibus episcopis, et comitibus et baronibus regni, et civibus Londoniarum, quod cancellarius ille deponeretur, et deposuerunt eum, &c. p. 701.[q]The reader may consult, for a more full account of the English towns before the middle of the thirteenth century, Lyttelton's History of Henry II. vol. ii. p. 174; and Macpherson's Annals of Commerce.[r]Frequent proofs of this may be found in Madox, Hist. of Exchequer, c. 17, as well as in Matt. Paris, who laments it with indignation. Cives Londinenses, contra consuetudinem et libertatem civitatis, quasi servi ultimæ conditionis, non sub nomine aut titulo liberi adjutorii, sed tallagii, quod multum eos angebat, regi, licet inviti et renitentes, numerare sunt coacti. p. 492. Heu ubi est Londinensis, toties empta, toties concessa, toties scripta, toties jurata libertas! &c. p. 627. The king sometimes suspended their market, that is, I suppose, their right of toll, till his demands were paid.[s]These writs are not extant, having perhaps never been returned; and consequently we cannot tell to what particular places they were addressed. It appears however that the assembly was intended to be numerous; for the entry runs: scribitur civibus Ebor, civibus Lincoln, et cæteris burgis Angliæ. It is singular that no mention is made of London, which must have had some special summons. Rymer, t. i. p. 803. Dugdale, Summonitiones ad Parliamentum, p. 1.[t]It would ill repay any reader's diligence to wade through the vapid and diluted pages of Tyrrell; but whoever would know what can be best pleaded for a higher antiquity of our present parliamentary constitution may have recourse to Hody on Convocations, and Lord Lyttelton's History of Henry II. vol. ii. p. 276, and vol. iv. p. 79-106. I do not conceive it possible to argue the question more ingeniously than has been done by the noble writer last quoted. Whitelocke, in his commentary on the parliamentary writ, has treated it very much at length, but with no critical discrimination. [NoteVII.][u]Madox, Hist. of Exchequer, c. 17.[x]The only apparent exception to this is in the letter addressed to the pope by the parliament of 1246; the salutation of which runs thus: Barones, proceres, et magnates,ac nobiles portuum maris habitatores, necnon et clerus et populus universus, salutem. Matt. Paris, p. 696. It is plain, I think, from these words, that some of the chief inhabitants of the Cinque Ports, at that time very flourishing towns, were present in this parliament. But whether they sat as representatives, or by a peculiar writ of summons, is not so evident; and the latter may be the more probable hypothesis of the two.[y]Thus Matthew Paris tells us that in 1237 the whole kingdom, regni totius universitas, repaired to a parliament of Henry III. p. 367.[z]Brady's Introduction to Hist. of England, p. 38.[a]Convocatis universis Angliæ prelatis et magnatibus, necnon cunctatum regni sui civitatum et burgorum potentioribus. Wykes, in Gale, XV Scriptores, t. ii. p. 88. I am indebted to Hody on Convocations for this reference, which seems to have escaped most of our constitutional writers.[b]Hoc anno ... convenerunt archiepiscopi, episcopi, comites et barones, abbates et priores, et de quolibet comitatu quatuor milites, et de quâlibet civitate quatuor. Annales Waverleienses in Gale, t. ii. p. 227. I was led to this passage by Atterbury, Rights of Convocations, p. 310, where some other authorities less unquestionable are adduced for the same purpose. Both this assembly and that mentioned by Wykes in 1269 were certainly parliaments, and acted as such, particularly the former, though summoned for purposes not strictly parliamentary.[c]The statute of Marlebridge is said to be made convocatis discretioribus, tam majoribus quàm minoribus; that of Westminster primer, par son conseil, et par l'assentements des archievesques, evesques, abbes, priors, countes, barons, et tout le comminality de la terre illonques summones. The statute of Gloucester runs, appelles les plus discretes de son royaume, auxibien des grandes come des meinders. These preambles seem to have satisfied Mr. Prynne that the commons were then represented, though the writs are wanting; and certainly no one could be less disposed to exaggerate their antiquity. 2nd Register, p. 30.[d]Brady's Hist. of England, vol. ii. Appendix; Carte, vol. ii. p. 257.[e]This is commonly denominated the parliament of Acton Burnell; the clergy and commons having sat in that town, while the barons passed judgment upon David prince of Wales at Shrewsbury. The towns which were honoured with the privilege of representation, and may consequently be supposed to have been at that time the most considerable in England, were York, Carlisle, Scarborough, Nottingham, Grimsby, Lincoln, Northampton, Lynn, Yarmouth, Colchester, Norwich, Chester, Shrewsbury, Worcester, Hereford, Bristol, Canterbury, Winchester, and Exeter. Rymer, t. ii. p. 247."This [the trial and judgment of Llewellin] seems to have been the only business transacted at Shrewsbury; for the bishops and abbots, and four knights of each shire, and two representatives of London and nineteen other trading towns, summoned to meet the same day in parliament, are said to have sat at Acton Burnell; and thence the law made for the more easy recovery of the debts of merchants is called the Statute of Acton Burnell. It was probably made at the request of the representatives of the cities and boroughs present in that parliament, authentic copies in the king's name being sent to seven of those trading towns; but it runs only in the name of the king and his council." Carte, ii. 195, referring to Rot. Wall. 11 Edw. I. m. 2nd.As the parliament was summoned to meet at Shrewsbury, it may be presumed that the Commons adjourned to Acton Burnell. The word "statute" implies that some consent was given, though the enactment came from the king and council. It is entitled in the Book of the Exchequer—des Estatus de Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at Salopsebur, al parlement prochein apres la fete Seint Michel, l'an del reigne le Rey Edward, Fitz le Rey Henry, unzime. Report of Lords' Committee, p. 191. The enactment by the king and council founded on the consent of the estates was at Acton Burnell. And the Statute of Merchants, 13 Edw. I., refers to that of the 11th, as made by the king, a son parlement que il tint à Acton Burnell, and again mentions l'avant dit statut fait à Acton Burnell. This seems to afford a voucher for what is said in my text, which has been controverted by a learned antiquary.[*] It is certain that the lords were at Shrewsbury in their judicial character condemning Llewellin; but whether they proceeded afterwards to Acton Burnell, and joined in the statute, is not quite so clear.* Archæological Journal, vol. ii. p. 337, by the Rev. W. Hartshorne.[f][Note VI.][g]Willis, Notitia Parliamentaria, vol. ii. p. 312; Lyttelton's Hist. of Hen. II. vol. iv. p. 89.[h]6 Ric. II. stat. 2, c. iv.[i]Rot. Parl. vol. iv. p. 22.[k]Though such an argument would not be conclusive, it might afford some ground for hesitation, if the royal burghs of Scotland were actually represented in their parliament more than half a century before the date assigned to the first representation of English towns. Lord Hailes concludes from a passage in Fordun "that as early as 1211 burgesses gave suit and presence in the great council of the king's vassals; though the contrary has been asserted with much confidence by various authors." Annals of Scotland, vol. i. p. 139. Fordun's words, however, so far from importing that they formed a member of the legislature, which perhaps Lord Hailes did not mean by the quaint expression "gave suit and presence," do not appear to me conclusive to prove that they were actually present. Hoc anno Rex Scotiæ Willelmus magnum tenuit consilium. Ubi, petito ab optimatibus auxilio, promiserunt se daturos decem mille marcas: præter burgenses regni, qui sex millia promiserunt. Those who know the brief and incorrect style of chronicles will not think it unlikely that the offer of 6000 marks by the burgesses was not made in parliament, but in consequence of separate requisitions from the crown. Pinkerton is of opinion that the magistrates of royal burghs might upon this, and perhaps other occasions, have attended at the bar of parliament with their offers of money. But the deputies of towns do not appear as a part of parliament till 1326. Hist. of Scotland, vol. i. p. 352, 371.[m][NoteVII.]

[a]The fullest account we possess of these domestic transactions from 1294 to 1298 is in Walter Hemingford, one of the historians edited by Hearne, p. 52-168. They have been vilely perverted by Carte, but extremely well told by Hume, the first writer who had the merit of exposing the character of Edward I. See too Knyghton in Twysden's Decem Scriptores, col. 2492.

[b]Walsingham, in Camden's Scriptores Rer. Anglicarum, p. 71-73.

[c]Edward would not confirm the charters, notwithstanding his promise, without the words, salvo jure coronæ nostræ; on which the two earls retired from court. When the confirmation was read to the people at St. Paul's, says Hemingford, they blessed the king on seeing the charters with the great seal affixed; but when they heard the captious conclusion, they cursed him instead. At the next meeting of parliament, the king agreed to omit these insidious words, p. 168.

[d]The supposed statute, De Tallagio non concedendo, is considered by Blackstone (Introduction to Charters, p. 67) as merely an abstract of the Confirmatio Chartarum. By that entitled Articuli super Chartas, 28 Edw. I., a court was erected in every county, of three knights or others, to be elected by the commons of the shire, whose sole province was to determine offences against the two charters, with the power of punishing by fine and imprisonment; but not to extend to any case wherein a remedy by writ was already provided. The Confirmatio Chartarum is properly denominated a statute, and always printed as such; but in form, like Magna Charta, it is a charter, or letters patent, proceeding from the crown, without even reciting the consent of the realm. And its "teste" is at Ghent, 2 Nov. 1297; Edward having engaged, conjointly with the count of Flanders, in a war with Philip the Fair. But a parliament had been held at London, when the barons insisted on these concessions. The circumstances are not wholly unlike those of Magna Charta.The Lords' Committee do not seem to reject the statute "de tallagio non concedendo" altogether, but say that, "if the manuscript containing it (in Corpus Christi College, Cambridge) is a true copy of a statute, it is undoubtedly a copy of a statute of the 25th, and not of a statute of the 34th of Edward I." p. 230. It seems to me on comparing the two, that the supposed statute de tallagio is but an imperfect transcript of the king's charter at Ghent. But at least, as one exists in an authentic form, and the other is only found in an unauthorized copy, there can be no question which ought to be quoted.

The Lords' Committee do not seem to reject the statute "de tallagio non concedendo" altogether, but say that, "if the manuscript containing it (in Corpus Christi College, Cambridge) is a true copy of a statute, it is undoubtedly a copy of a statute of the 25th, and not of a statute of the 34th of Edward I." p. 230. It seems to me on comparing the two, that the supposed statute de tallagio is but an imperfect transcript of the king's charter at Ghent. But at least, as one exists in an authentic form, and the other is only found in an unauthorized copy, there can be no question which ought to be quoted.

[e]Hody (Treatise on Convocations, p. 126) states the matter thus: in the Saxon times all bishops and abbots sat and voted in the state councils, or parliament, as such, and not on account of their tenures. After the Conquest the abbots sat there not as such, but by virtue of their tenures, as barons; and the bishops sat in a double capacity, as bishops, and as barons.

[f]Hody, p. 128.

[g][NoteI.]

[h]Madox, Baronia Anglica, p. 138. Dialogus de Scaccario, 1. i. c. 17. Lyttelton's Henry II. vol. ii. p. 217. The last of these writers supposes, contrary to Selden, that the earls continued to be governors of their counties under Henry II. Stephen created a few titular earls, with grants of crown lands to support them; but his successor resumed the grants, and deprived them of their earldoms.In Rymer's Fœdera, vol. i. p. 3, we find a grant of Matilda, creating Milo of Gloucester earl of Hereford, with the moat and castle of that city in fee to him and his heirs, the third penny of the rent of the city, and of the pleas in the county, three manors and a forest, and the service of three tenants in chief, with all their fiefs; to be held with all privileges and liberties as fully as ever any earl in England had possessed them.

In Rymer's Fœdera, vol. i. p. 3, we find a grant of Matilda, creating Milo of Gloucester earl of Hereford, with the moat and castle of that city in fee to him and his heirs, the third penny of the rent of the city, and of the pleas in the county, three manors and a forest, and the service of three tenants in chief, with all their fiefs; to be held with all privileges and liberties as fully as ever any earl in England had possessed them.

[i]Selden's Works, vol. iii. p. 713-743.

[k]Lyttelton's Henry II. vol. ii. p. 212.

[m]Hody on Convocations, p. 222, 234.

[n]Lib. ii. c. 9.

[o]Hody and Lord Lyttelton maintain these "barons of the second rank" to have been the sub-vassals of the crown; tenants of the great barons to whom the name was sometimes improperly applied. This was very consistent with their opinion, that the commons were a part of parliament at that time. But Hume, assuming at once the truth of their interpretation in this instance, and the falsehood of their system, treats it as a deviation from the established rule, and a proof of the unsettled state of the constitution.

[p][NoteII.]

[q]M. Paris, p. 785. The barons even tell the king that this was contrary tohischarter, in which nevertheless the clause to that effect, contained in his father's charter, had been omitted.

[r]Henry II., in 1175, forbad any of those who had been concerned in the late rebellion to come to his court without a particular summons. Carte, vol. ii. p. 249.

[s]Upon the subject of tenure by barony, besides the writers already quoted, see West's Inquiry into the Method of creating Peers, and Carte's History of England, vol. ii. p. 247.

[t]Hody on Convocations, p. 293.

[u]Brady, Introduction to History of England. Appendix, p. 43.

[x]Brady's History of England, vol. i. Appendix, p. 182.

[y]Brady's Introduction, p. 94.

[z]Hist. of Common Law, vol, i. p. 202.

[a]This assembly is mentioned in the preamble, and afterwards, of the spurious laws of Edward the Confessor; and I have been accused of passing it over too slightly. The fact certainly does not rest on the authority of Hoveden, who transcribes these lawsverbatim; and they are in substance an ancient document. There seems to me somewhat rather suspicious in this assembly of delegates; it looks like a pious fraud to maintain the old Saxon jurisprudence, which was giving way. But even if we admit the fact as here told, I still adhere to the assertion that there is no appearance that these twelve deputies of each county were invested with any higher authority than that of declaring their ancient usages. Any supposition of a real legislative parliament would be inconsistent with all that we know of the state of England under the Conqueror. And what an anomaly, upon every constitutional principle, Anglo-Saxon or Norman, would be a parliament of twelve from each county! Nor is it perfectly manifest that they were chosen by the people; the word summoneri fecit is first used; and afterwards, electis de (notin) singulis totius patriæ comitatibus. This might be construed of the king's selection; but perhaps the common interpretation is rather the better.William, the compiler informs us, having heard some of the Danish laws, was disposed to confirm them in preference to those of England; but yielded to the supplication of the delegates, omnes compatriotæ, qui leges narraverant, that he would permit them to retain the customs of their ancestors, imploring him by the soul of King Edward, cujus erant leges, nec aliorum exterorum. The king at length gave way, by the advice and request of his barons, consilio et precatu baronum. These of course were Normans; but what inference can be drawn in favour of parliamentary representation in England from the behaviour of the rest? They were supplicants, not legislators.

William, the compiler informs us, having heard some of the Danish laws, was disposed to confirm them in preference to those of England; but yielded to the supplication of the delegates, omnes compatriotæ, qui leges narraverant, that he would permit them to retain the customs of their ancestors, imploring him by the soul of King Edward, cujus erant leges, nec aliorum exterorum. The king at length gave way, by the advice and request of his barons, consilio et precatu baronum. These of course were Normans; but what inference can be drawn in favour of parliamentary representation in England from the behaviour of the rest? They were supplicants, not legislators.

[b]2 Prynne's Register, p. 16.

[c]Brady's Introduction, Appendix, pp. 41 and 44. "The language of these writs implies a distinction between such as were styled barons, apparently including the earls and the four knights who were to come from the several counties ad loquendum, and who were also distinguished from the knights summoned to attend with arms, in performance, it should seem, of the military service due by their respective tenures; and the writs, therefore, apparently distinguished certain tenants in chief by knight-service from barons, if the knights so summoned to attend with arms were required to attend by reason of their respective tenures in chief of the king. How the four knights of each county who were thus summoned to confer with the king were to be chosen, whether by the county, or according to the mere will of the sheriff, does not appear; but it seems most probable that they were intended by the king as representatives of the freeholders of each county, and to balance the power of the hostile nobles, who were then leagued against him; and the measure might lead to conciliate the minds of those who would otherwise have had no voice in the legislative assembly." Report of Lords' Committee, p. 61.This would be a remarkable fact, and the motive is by no means improbable, being perhaps that which led to the large provisions for summoning tenants in chief, contained in the charter of John, and afterwards passed over. But this parley of the four knights from each county, for they are only summoned ad loquendum, may not amount to bestowing on them any legislative power. It is nevertheless to be remembered that the word parliament meant, by its etymology, nothing more; and the words, ad loquendum, may have been used in reference to that. It is probable that these writs were not obeyed; we have no evidence that they were, and it was a season of great confusion very little before the granting of the charter of Henry III.

This would be a remarkable fact, and the motive is by no means improbable, being perhaps that which led to the large provisions for summoning tenants in chief, contained in the charter of John, and afterwards passed over. But this parley of the four knights from each county, for they are only summoned ad loquendum, may not amount to bestowing on them any legislative power. It is nevertheless to be remembered that the word parliament meant, by its etymology, nothing more; and the words, ad loquendum, may have been used in reference to that. It is probable that these writs were not obeyed; we have no evidence that they were, and it was a season of great confusion very little before the granting of the charter of Henry III.

[d]Brady's Hist. of England, vol. i. Appendix, p. 227.

[e]2 Prynne, p. 23.

[f]"This writ tends strongly to show that there then existed no law by which a representation either of the king's tenants in capite or of others, for the purpose of constituting a legislative assembly, or for granting an aid, was specially provided; and it seems to have been the first instance appearing on any record now extant, of an attempt to substitute representatives elected by bodies of men for the attendance of the individual so to be represented, personally or by their several procurators, in an assembly convened for the purpose of obtaining an aid." Report, p. 95.

[g]2 Prynne, p. 27.

[h]12 Ric. II. c. 12. Prynne's 4th Register.

[i]Pinkerton's Hist. of Scotland, vol. i. p. 120, 357. But this law was not regularly acted upon till 1587. p. 368.

[k]What can one who adopts this opinion of Dr. Brady say to the following record? Rex militibus, liberis hominibus, ettoti communitaticomitatus Wygorniæ tam intra libertates quam extra, salutem. Cum comites, barones, milites, liberi homines, et communitates comitatuum regni nostri vicesimam omnium bonorum suorum mobilium, civesque et burgenses et communitates omnium civitatum et burgorum ejusdem regni, necnon tenentes de antiquis dominicis coronæ nostræ quindecimam bonorum suorum mobilium nobis concesserunt. Pat. Rot. 1 E. II. in Rot. Parl. vol. i. p. 442. See also p. 241 and p. 269. If the word communitas is here used in any precise sense, which, when possible, we are to suppose in construing a legal instrument, it must designate, not the tenants in chief, but the inferior class, who, though neither freeholders nor free burgesses, were yet contributable to the subsidy on their goods.

[m]Madox, Firma Burgi, p. 99 and p. 102 note Z.

[n]Prynne's 2nd Register, p. 50.

[o]Carte's Hist. of England, ii. 250.

[p]The present question has been discussed with much ability in the Edinburgh Review, vol. xxvi. p. 341. [NoteIII.]

[q]Wilkins, p. 71.

[r]Burgensis Exoniæ urbis habent extra civitatem terram duodecim carucatarum: quæ nullam consuetudinem reddunt nisi ad ipsam civitatem. Domesday, p. 100. At Canterbury the burgesses had forty-five houses without the city, de quibus ipsi habebant gablum et consuetudinem, rex autem socam et sacam; ipsi quoque burgenses habebant de rege triginta tres acras prati in gildam, suam. p. 2. In Lincoln and Stamford some resident proprietors, called Lagemanni, had jurisdiction (socam et sacam) over their tenants. But nowhere have I been able to discover any trace of municipal self-government; unless Chester may be deemed an exception, where we read of twelve judices civitatis; but by whom constituted does not appear. The word lageman seems equivalent to judex. The guild mentioned above at Canterbury was, in all probability, a voluntary association: so at Dover we find the burgesses' guildhall, gihalla burgensium. p. 1.Many of the passages in Domesday relative to the state of burgesses are collected in Brady's History of Boroughs; a work which, if read with due suspicion of the author's honesty, will convey a great deal of knowledge.Since the former part of this note was written, I have met with a charter granted by Henry II. to Lincoln, which seems to refer, more explicitly than any similar instrument, to municipal privileges of jurisdiction enjoyed by the citizens under Edward the Confessor. These charters, it is well known, do not always recite what is true; yet it is possible that the citizens of Lincoln, which had been one of the five Danish towns, sometimes mentioned with a sort of distinction by writers before the Conquest, might be in a more advantageous situation than the generality of burgesses. Sciatis me concessisse civibus meis Lincoln, omnes libertates et consuetudines et leges suas, quas habuerunt tempore Edwardi et Will. et Henr. regum Angliæ, et gildam suam mercatoriam de hominibus civitatis et de aliis mercatoribus comitatus, sicut illam habuerunt tempore predictorum, antecessorum nostrorum, regum Angliæ, melius et liberius. Et omnes homines qui infra quatuor divisas civitates manent et mercatum deducunt, sint ad gildas, et consuetudines et assisas civitatis, sicut melius fuerunt temp. Edw. et Will. et Hen. regum Angliæ. Rymer, t. i. p. 40 (edit. 1816).I am indebted to the friendly remarks of the periodical critic whom I have before mentioned for reminding me of other charters of the same age, expressed in a similar manner, which in my haste I had overlooked, though printed in common books. But whether these general words ought to outweigh the silence of Domesday Book I am not prepared to decide. I have admitted below that the possession of corporate property implies an elective government for its administration, and I think it perfectly clear that the guilds made by-laws for the regulation of their members. Yet this is something different from municipal jurisdiction over all the inhabitants of a town. [NoteIV.]

Many of the passages in Domesday relative to the state of burgesses are collected in Brady's History of Boroughs; a work which, if read with due suspicion of the author's honesty, will convey a great deal of knowledge.

Since the former part of this note was written, I have met with a charter granted by Henry II. to Lincoln, which seems to refer, more explicitly than any similar instrument, to municipal privileges of jurisdiction enjoyed by the citizens under Edward the Confessor. These charters, it is well known, do not always recite what is true; yet it is possible that the citizens of Lincoln, which had been one of the five Danish towns, sometimes mentioned with a sort of distinction by writers before the Conquest, might be in a more advantageous situation than the generality of burgesses. Sciatis me concessisse civibus meis Lincoln, omnes libertates et consuetudines et leges suas, quas habuerunt tempore Edwardi et Will. et Henr. regum Angliæ, et gildam suam mercatoriam de hominibus civitatis et de aliis mercatoribus comitatus, sicut illam habuerunt tempore predictorum, antecessorum nostrorum, regum Angliæ, melius et liberius. Et omnes homines qui infra quatuor divisas civitates manent et mercatum deducunt, sint ad gildas, et consuetudines et assisas civitatis, sicut melius fuerunt temp. Edw. et Will. et Hen. regum Angliæ. Rymer, t. i. p. 40 (edit. 1816).

I am indebted to the friendly remarks of the periodical critic whom I have before mentioned for reminding me of other charters of the same age, expressed in a similar manner, which in my haste I had overlooked, though printed in common books. But whether these general words ought to outweigh the silence of Domesday Book I am not prepared to decide. I have admitted below that the possession of corporate property implies an elective government for its administration, and I think it perfectly clear that the guilds made by-laws for the regulation of their members. Yet this is something different from municipal jurisdiction over all the inhabitants of a town. [NoteIV.]

[s]Madox, Hist. of Exchequer, c. 17.

[t]Madox, Firma Burgi, p. 1. There is one instance, I know not if any more could be found, of a firma burgi before the Conquest. It was at Huntingdon. Domesday, p. 203.

[u]Madox, p. 12, 13.

[x]Id. p. 21.

[y]I have read somewhere that this charter was granted in 1101. But the instrument itself, which is only preserved by an Inspeximus of Edward IV., does not contain any date. Rymer, t. i. p. 11 (edit. 1816). Could it be traced so high, the circumstance would be remarkable, as the earliest charters granted by Louis VI., supposed to be the father of these institutions, are several years later.It is said by Mr. Thorpe (Ancient Laws of England, p. 267), that, though there are ten witnesses, he only finds one who throws any light on the date: namely, Hugh Bigod, who succeeded his brother William in 1120. But Mr. Thorpe does not mention in what respect he succeeded. It was asdapifer regis; but he is not so named in the charter. Dugdale's Baronage, p. 132. The date, therefore, still seems problematical.

It is said by Mr. Thorpe (Ancient Laws of England, p. 267), that, though there are ten witnesses, he only finds one who throws any light on the date: namely, Hugh Bigod, who succeeded his brother William in 1120. But Mr. Thorpe does not mention in what respect he succeeded. It was asdapifer regis; but he is not so named in the charter. Dugdale's Baronage, p. 132. The date, therefore, still seems problematical.

[z]This did not, however, save the citizens from paying one hundred marks to the king for this privilege. Mag. Rot. 5 Steph. apud Madox, Hist. Exchequer, t. xi. I do not know that the charter of Henry I. can be suspected; but Brady, in his treatise of Boroughs (p. 38, edit. 1777), does not think proper once to mention it; and indeed uses many expressions incompatible with its existence.

[a]Blomefield, Hist of Norfolk, vol. ii. p. 16, says that Henry I. granted the same privileges by charter to Norwich in 1122 which London possessed. Yet it appears that the king named the port reeve or provost; but Blomefield suggests that he was probably recommended by the citizens, the office being annual.

[b]Madox, Firma Burgi, p. 23. Hickes has given us a bond of fellowship among the thanes of Cambridgeshire, containing several curious particulars. A composition of eight pounds, exclusive, I conceive, of the usual weregild, was to be enforced from the slayer of any fellow. If a fellow (gilda) killed a man of 1200 shillings weregild, each of the society was to contribute half a marc; for a ceorl, two oræ (perhaps ten shillings); for a Welshman, one. If however this act was committed wantonly, the fellow had no right to call on the society for contribution. If one fellow killed another, he was to pay the legal weregild to his kindred, and also eight pounds to the society. Harsh words used by one fellow towards another, or even towards a stranger, incurred a fine. No one was to eat or drink in the company of one who had killed his brother fellow, unless in the presence of the king, bishop, or alderman. Dissertatio Epistolaris, p. 21.We find in Wilkins's Anglo-Saxon Laws, p. 65, a number of ordinances sworn to by persons both of noble and ignoble rank (ge eorlisce ge ceorlisce), and confirmed by king Athelstan. These are in the nature of by-laws for the regulation of certain societies that had been formed for the preservation of public order. Their remedy was rather violent: to kill and seize the effects of all who should rob any member of the association. This property, after deducting the value of the things stolen, was to be divided into two parts; one given to the criminal's wife if not an accomplice, the other shared between the king and the society.In another fraternity among the clergy and laity of Exeter every fellow was entitled to a contribution in case of taking a journey, or if his house was burned. Thus they resembled, in some degree, our friendly societies; and display an interesting picture of manners, which has induced me to insert this note, though not greatly to the present purpose. See more of the Anglo-Saxon guilds in Turner's History, vol. ii. p. 102. Societies of the same kind, for purposes of religion, charity, or mutual assistance, rather than trade, may be found long afterwards. Blomefield's Hist. of Norfolk, vol. iii. p. 494.

We find in Wilkins's Anglo-Saxon Laws, p. 65, a number of ordinances sworn to by persons both of noble and ignoble rank (ge eorlisce ge ceorlisce), and confirmed by king Athelstan. These are in the nature of by-laws for the regulation of certain societies that had been formed for the preservation of public order. Their remedy was rather violent: to kill and seize the effects of all who should rob any member of the association. This property, after deducting the value of the things stolen, was to be divided into two parts; one given to the criminal's wife if not an accomplice, the other shared between the king and the society.

In another fraternity among the clergy and laity of Exeter every fellow was entitled to a contribution in case of taking a journey, or if his house was burned. Thus they resembled, in some degree, our friendly societies; and display an interesting picture of manners, which has induced me to insert this note, though not greatly to the present purpose. See more of the Anglo-Saxon guilds in Turner's History, vol. ii. p. 102. Societies of the same kind, for purposes of religion, charity, or mutual assistance, rather than trade, may be found long afterwards. Blomefield's Hist. of Norfolk, vol. iii. p. 494.

[c]See a grant from Turstin, archbishop of York, in the reign of Henry I., to the burgesses of Beverley, that they may have theirhanshus(i.e. guildhall) like those of York, et ibi sua statuta pertractent ad honorem Dei, &c. Rymer, t. i. p. 10, edit. 1816.

[d]Madox, Firma Burgi, p. 189.

[e]Idem, passim. A few of an earlier date may be found in the new edition of Rymer.

[f]Lyttelton's History of Henry II., vol. ii. p. 170. Macpherson's Annals of Commerce, vol. i. p. 331.

[g]Macpherson, p. 245.

[h]Id. p. 282.

[i]Cives Lundinenses, et pars nobilium qui eo tempore consistebant Lundoniæ, Clitonem Eadmundum unanimi consensu in regem levavere. p. 249.

[k]Chron. Saxon. p. 154. Malmsbury, p. 76. He says the people of London were become almost barbarians through their intercourse with the Danes; propter frequentem convictum.

[m]Londinenses, qui sunt quasi optimates pro magnitudine civitatis in Angliâ. Malmsb. p. 189. Thus too Matthew Paris: cives Londinenses, quos propter civitatis dignitatem et civium antiquam libertatem Barones consuevimus appellare. p. 744. And in another place: totius civitatis cives, quos barones vocant. p. 835. Spelman says that the magistrates of several other towns were called barons. Glossary, Barones de London.A singular proof of the estimation in which the citizens of London held themselves in the reign of Richard I. occurs in the Chronicle of Jocelyn de Brakelonde (p. 56—Camden Society, 1840). They claimed to be free from toll in every part of England, and in every jurisdiction, resting their immunity on the antiquity of London (which was coeval, they said, with Rome), and on its rank as metropolis of the kingdom. Et dicebant cives Lundonienses fuisse quietos de theloneo in omni foro, et semper et ubique, per totam Angliam, à tempore quo Roma primo fundata fuit, et civitatem Lundoniæ, eodem tempore fundatam, talem debere habere libertatem per totam Angliam, et ratione civitatis privilegiatæ quæ olim metropolis fuit et caput regni, et ratione antiquitatis. Palgrave inclines to think that London never formed part of any kingdom of the Heptarchy. Introduction to Rot. Cur. Regis. p. 95. But this seems to imply a republican city in the midst of so many royal states, which seems hardly probable. Certainly it seems strange, though I cannot explain it away, that the capital of England should have fallen, as we generally suppose, to the small and obscure kingdom of Essex. Winchester, indeed, may be considered as having become afterwards the capital during the Anglo-Saxon monarchy, so far as that it was for the most part the residence of our kings. But London was always more populous.

A singular proof of the estimation in which the citizens of London held themselves in the reign of Richard I. occurs in the Chronicle of Jocelyn de Brakelonde (p. 56—Camden Society, 1840). They claimed to be free from toll in every part of England, and in every jurisdiction, resting their immunity on the antiquity of London (which was coeval, they said, with Rome), and on its rank as metropolis of the kingdom. Et dicebant cives Lundonienses fuisse quietos de theloneo in omni foro, et semper et ubique, per totam Angliam, à tempore quo Roma primo fundata fuit, et civitatem Lundoniæ, eodem tempore fundatam, talem debere habere libertatem per totam Angliam, et ratione civitatis privilegiatæ quæ olim metropolis fuit et caput regni, et ratione antiquitatis. Palgrave inclines to think that London never formed part of any kingdom of the Heptarchy. Introduction to Rot. Cur. Regis. p. 95. But this seems to imply a republican city in the midst of so many royal states, which seems hardly probable. Certainly it seems strange, though I cannot explain it away, that the capital of England should have fallen, as we generally suppose, to the small and obscure kingdom of Essex. Winchester, indeed, may be considered as having become afterwards the capital during the Anglo-Saxon monarchy, so far as that it was for the most part the residence of our kings. But London was always more populous.

[n]Drake, the historian of York, maintains that London was less populous, about the time of the Conquest, than that city; and quotes Hardynge, a writer of Henry V.'s age, to prove that the interior part of the former was not closely built. Eboracum, p. 91. York however does not appear to have contained more than 10,000 inhabitants at the accession of the Conqueror; and the very exaggerations as to the populousness of London prove that it must have far exceeded that number. Fitz-Stephen, the contemporary biographer of Thomas à Becket, tells us of 80,000 men capable of bearing arms within its precincts; where however his translator, Pegge, suspects a mistake of the MS. in the numerals. And this, with similar hyperboles, so imposed on the judicious mind of Lord Lyttelton, that, finding in Peter of Blois the inhabitants of London reckoned at quadraginta millia, he has actually proposed to read quadringenta. Hist. Henry II., vol. iv. ad finem. It is hardly necessary to observe that the condition of agriculture and internal communication would not have allowed half that number to subsist.The subsidy-roll of 1377, published in the Archæologia, vol. vii., would lead to a conclusion that all the inhabitants of London did not even then exceed 35,000. If this be true, they could not have amounted, probably, to so great a number two or three centuries earlier. But the numbers given in that document have been questioned as to Norwich upon very plausible grounds, and seem rather suspicious in the present instance. [NoteV.]

The subsidy-roll of 1377, published in the Archæologia, vol. vii., would lead to a conclusion that all the inhabitants of London did not even then exceed 35,000. If this be true, they could not have amounted, probably, to so great a number two or three centuries earlier. But the numbers given in that document have been questioned as to Norwich upon very plausible grounds, and seem rather suspicious in the present instance. [NoteV.]

[o]This seditious, or at least refractory character of the Londoners, was displayed in the tumult headed by William Longbeard in the time of Richard I., and that under Constantine in 1222, the patriarchs of a long line of city demagogues. Hoveden, p. 765. M. Paris, p. 154.

[p]Hoveden's expressions are very precise, and show that the share taken by the citizens of London (probably the mayor and aldermen) in this measure was no tumultuary acclamation, but a deliberate concurrence with the nobility. Comes Johannes, et fere omnes episcopi, et comites Angliæ eâdem die intraverunt Londonias; et in crastino prædictus Johannes frater regis, et archiepiscopus Rothomagensis, et omnes episcopi, et comites et barones, et cives Londonienses cum illis convenerunt in atrio ecclesiæ S. Pauli.... Placuit ergo Johanni fratri regis, et omnibus episcopis, et comitibus et baronibus regni, et civibus Londoniarum, quod cancellarius ille deponeretur, et deposuerunt eum, &c. p. 701.

[q]The reader may consult, for a more full account of the English towns before the middle of the thirteenth century, Lyttelton's History of Henry II. vol. ii. p. 174; and Macpherson's Annals of Commerce.

[r]Frequent proofs of this may be found in Madox, Hist. of Exchequer, c. 17, as well as in Matt. Paris, who laments it with indignation. Cives Londinenses, contra consuetudinem et libertatem civitatis, quasi servi ultimæ conditionis, non sub nomine aut titulo liberi adjutorii, sed tallagii, quod multum eos angebat, regi, licet inviti et renitentes, numerare sunt coacti. p. 492. Heu ubi est Londinensis, toties empta, toties concessa, toties scripta, toties jurata libertas! &c. p. 627. The king sometimes suspended their market, that is, I suppose, their right of toll, till his demands were paid.

[s]These writs are not extant, having perhaps never been returned; and consequently we cannot tell to what particular places they were addressed. It appears however that the assembly was intended to be numerous; for the entry runs: scribitur civibus Ebor, civibus Lincoln, et cæteris burgis Angliæ. It is singular that no mention is made of London, which must have had some special summons. Rymer, t. i. p. 803. Dugdale, Summonitiones ad Parliamentum, p. 1.

[t]It would ill repay any reader's diligence to wade through the vapid and diluted pages of Tyrrell; but whoever would know what can be best pleaded for a higher antiquity of our present parliamentary constitution may have recourse to Hody on Convocations, and Lord Lyttelton's History of Henry II. vol. ii. p. 276, and vol. iv. p. 79-106. I do not conceive it possible to argue the question more ingeniously than has been done by the noble writer last quoted. Whitelocke, in his commentary on the parliamentary writ, has treated it very much at length, but with no critical discrimination. [NoteVII.]

[u]Madox, Hist. of Exchequer, c. 17.

[x]The only apparent exception to this is in the letter addressed to the pope by the parliament of 1246; the salutation of which runs thus: Barones, proceres, et magnates,ac nobiles portuum maris habitatores, necnon et clerus et populus universus, salutem. Matt. Paris, p. 696. It is plain, I think, from these words, that some of the chief inhabitants of the Cinque Ports, at that time very flourishing towns, were present in this parliament. But whether they sat as representatives, or by a peculiar writ of summons, is not so evident; and the latter may be the more probable hypothesis of the two.

[y]Thus Matthew Paris tells us that in 1237 the whole kingdom, regni totius universitas, repaired to a parliament of Henry III. p. 367.

[z]Brady's Introduction to Hist. of England, p. 38.

[a]Convocatis universis Angliæ prelatis et magnatibus, necnon cunctatum regni sui civitatum et burgorum potentioribus. Wykes, in Gale, XV Scriptores, t. ii. p. 88. I am indebted to Hody on Convocations for this reference, which seems to have escaped most of our constitutional writers.

[b]Hoc anno ... convenerunt archiepiscopi, episcopi, comites et barones, abbates et priores, et de quolibet comitatu quatuor milites, et de quâlibet civitate quatuor. Annales Waverleienses in Gale, t. ii. p. 227. I was led to this passage by Atterbury, Rights of Convocations, p. 310, where some other authorities less unquestionable are adduced for the same purpose. Both this assembly and that mentioned by Wykes in 1269 were certainly parliaments, and acted as such, particularly the former, though summoned for purposes not strictly parliamentary.

[c]The statute of Marlebridge is said to be made convocatis discretioribus, tam majoribus quàm minoribus; that of Westminster primer, par son conseil, et par l'assentements des archievesques, evesques, abbes, priors, countes, barons, et tout le comminality de la terre illonques summones. The statute of Gloucester runs, appelles les plus discretes de son royaume, auxibien des grandes come des meinders. These preambles seem to have satisfied Mr. Prynne that the commons were then represented, though the writs are wanting; and certainly no one could be less disposed to exaggerate their antiquity. 2nd Register, p. 30.

[d]Brady's Hist. of England, vol. ii. Appendix; Carte, vol. ii. p. 257.

[e]This is commonly denominated the parliament of Acton Burnell; the clergy and commons having sat in that town, while the barons passed judgment upon David prince of Wales at Shrewsbury. The towns which were honoured with the privilege of representation, and may consequently be supposed to have been at that time the most considerable in England, were York, Carlisle, Scarborough, Nottingham, Grimsby, Lincoln, Northampton, Lynn, Yarmouth, Colchester, Norwich, Chester, Shrewsbury, Worcester, Hereford, Bristol, Canterbury, Winchester, and Exeter. Rymer, t. ii. p. 247."This [the trial and judgment of Llewellin] seems to have been the only business transacted at Shrewsbury; for the bishops and abbots, and four knights of each shire, and two representatives of London and nineteen other trading towns, summoned to meet the same day in parliament, are said to have sat at Acton Burnell; and thence the law made for the more easy recovery of the debts of merchants is called the Statute of Acton Burnell. It was probably made at the request of the representatives of the cities and boroughs present in that parliament, authentic copies in the king's name being sent to seven of those trading towns; but it runs only in the name of the king and his council." Carte, ii. 195, referring to Rot. Wall. 11 Edw. I. m. 2nd.As the parliament was summoned to meet at Shrewsbury, it may be presumed that the Commons adjourned to Acton Burnell. The word "statute" implies that some consent was given, though the enactment came from the king and council. It is entitled in the Book of the Exchequer—des Estatus de Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at Salopsebur, al parlement prochein apres la fete Seint Michel, l'an del reigne le Rey Edward, Fitz le Rey Henry, unzime. Report of Lords' Committee, p. 191. The enactment by the king and council founded on the consent of the estates was at Acton Burnell. And the Statute of Merchants, 13 Edw. I., refers to that of the 11th, as made by the king, a son parlement que il tint à Acton Burnell, and again mentions l'avant dit statut fait à Acton Burnell. This seems to afford a voucher for what is said in my text, which has been controverted by a learned antiquary.[*] It is certain that the lords were at Shrewsbury in their judicial character condemning Llewellin; but whether they proceeded afterwards to Acton Burnell, and joined in the statute, is not quite so clear.* Archæological Journal, vol. ii. p. 337, by the Rev. W. Hartshorne.

"This [the trial and judgment of Llewellin] seems to have been the only business transacted at Shrewsbury; for the bishops and abbots, and four knights of each shire, and two representatives of London and nineteen other trading towns, summoned to meet the same day in parliament, are said to have sat at Acton Burnell; and thence the law made for the more easy recovery of the debts of merchants is called the Statute of Acton Burnell. It was probably made at the request of the representatives of the cities and boroughs present in that parliament, authentic copies in the king's name being sent to seven of those trading towns; but it runs only in the name of the king and his council." Carte, ii. 195, referring to Rot. Wall. 11 Edw. I. m. 2nd.

As the parliament was summoned to meet at Shrewsbury, it may be presumed that the Commons adjourned to Acton Burnell. The word "statute" implies that some consent was given, though the enactment came from the king and council. It is entitled in the Book of the Exchequer—des Estatus de Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at Salopsebur, al parlement prochein apres la fete Seint Michel, l'an del reigne le Rey Edward, Fitz le Rey Henry, unzime. Report of Lords' Committee, p. 191. The enactment by the king and council founded on the consent of the estates was at Acton Burnell. And the Statute of Merchants, 13 Edw. I., refers to that of the 11th, as made by the king, a son parlement que il tint à Acton Burnell, and again mentions l'avant dit statut fait à Acton Burnell. This seems to afford a voucher for what is said in my text, which has been controverted by a learned antiquary.[*] It is certain that the lords were at Shrewsbury in their judicial character condemning Llewellin; but whether they proceeded afterwards to Acton Burnell, and joined in the statute, is not quite so clear.

* Archæological Journal, vol. ii. p. 337, by the Rev. W. Hartshorne.

[f][Note VI.]

[g]Willis, Notitia Parliamentaria, vol. ii. p. 312; Lyttelton's Hist. of Hen. II. vol. iv. p. 89.

[h]6 Ric. II. stat. 2, c. iv.

[i]Rot. Parl. vol. iv. p. 22.

[k]Though such an argument would not be conclusive, it might afford some ground for hesitation, if the royal burghs of Scotland were actually represented in their parliament more than half a century before the date assigned to the first representation of English towns. Lord Hailes concludes from a passage in Fordun "that as early as 1211 burgesses gave suit and presence in the great council of the king's vassals; though the contrary has been asserted with much confidence by various authors." Annals of Scotland, vol. i. p. 139. Fordun's words, however, so far from importing that they formed a member of the legislature, which perhaps Lord Hailes did not mean by the quaint expression "gave suit and presence," do not appear to me conclusive to prove that they were actually present. Hoc anno Rex Scotiæ Willelmus magnum tenuit consilium. Ubi, petito ab optimatibus auxilio, promiserunt se daturos decem mille marcas: præter burgenses regni, qui sex millia promiserunt. Those who know the brief and incorrect style of chronicles will not think it unlikely that the offer of 6000 marks by the burgesses was not made in parliament, but in consequence of separate requisitions from the crown. Pinkerton is of opinion that the magistrates of royal burghs might upon this, and perhaps other occasions, have attended at the bar of parliament with their offers of money. But the deputies of towns do not appear as a part of parliament till 1326. Hist. of Scotland, vol. i. p. 352, 371.

[m][NoteVII.]

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