appear in full county court by representatives. The towns courts each town was represented by twelve lawful1 men; and the mixed juries before which the townsmen were tried were composed of six strangers, and six drawn from the body of which they were members.2 Thus practically severed from the administration of the shire, the burghers made a further advance towards complete civic organization by obtaining from the king, or other lord, grants which widened Purchase of their commercial privileges, exempted them from tolls, and privileges. at the same time conferred upon the body of the citizens organized in the merchant-gild greater power to regulate their internal trade. The charters which conveyed to the townsmen these precious privileges of freedom of trade, of justice, and of internal government had invariably to be purchased from the lord of the town, whether king, noble, or abbot, and paid for in hard cash.3 commercial The towns win the right to own magistrates. The leet jury. In order to administer the special rights and privileges thus acquired by purchase from the king and other lords, and elect their in order to supply the deficiency which arose out of the exclusion of the shire administration, it became necessary for the towns to acquire the further right of electing their own magistrates. While the borough was administered as a dependent township, or as a group of dependent townships, the reeve and his companions, afterwards called the leet jury, constituted the only magistracy, whose authority was supplemented and strengthened by that of the gild. The reeve or bailiff held the courts of the borough upon the same general principle of accountability to an external authority under which the steward held the courts of the manor. Not until the borough won exemption from the jurisdiction of the sheriff, did it win the further right to establish an independent magistracy, and to choose as its head a reeve or bailiff, who now became an elective officer.5 The municipal char 1 The sheriffs were required to summon "of each vill four lawful men and the reeve, and of each borough twelve lawful burgesses." See the form of the summons as stated by Stephen, Hist. of the Crim. Law, vol. i. p. 101, citing Bracton, ii. (Twiss ed.), pp. 234, 581. 2 An illustration of this may be found in John's charter to Dunwich. "Et si forte amerciari debuerint, per sex probos homines de burgo suo et per vi probos homines extra burgum amercientur."- Charter Rolls, p. 51. 8 In the charters granted to the cities and boroughs by Henry I., Henry II., Richard I., and John, may be found ample illustration of the various privileges thus purchased. 4 See Select Charters, 2d ed. p. 41. 5 For the terms in which Richard grants the right to Lincoln to elect its own reeve (præpositus), see Fœdera, i. p. 52. For the terms in which John tive bailiff by a 66 power of acter of the borough was not completed, however, until the The elec elective reeve or bailiff was supplanted by the "mayor," superseded whose advent completed the transition from the old system mayor." of township government to the new system in which the borough community appears as a "communitas" or corporation. "The 'communitas' has, at common law, and with- Inherent out any statute, full power to regulate its own affairs, and to the "commake 'bye-laws,' for its own governance, by the assent of its munitas." own members. This power is inherent, and necessary to enable it to fulfil its obligations to the state."2 The entire communitas was the corporation, and yet the exercise of all real power lay in the hands of the gild-merchant, which was in fact, if not in theory, the governing body. Acting as such, it gave law to the corporation : "what was gild-law became the law of the town."3 So fully was the idea of Incorporation implied corporate existence represented by the gild that it was de- by the cided in later times, in the case of Totnes, that the incor- grant of gilda merporation of a borough was implied by the grant of gilda catoria. mercatoria. When the existence of the merchant-gild became merged in the corporation, the title of alderman, which originally belonged to the heads of the separate gilds, was transferred to the magistrates of the several wards into which the town was divided, or, where there was no such division, to the mayor's sworn assistants. And what was more important, the common property held by the merchant-gild became the property of the town corporation. By the beginning of Condition the thirteenth century the cities and towns that had made the beginthe greatest advance towards municipal independence had ning of the won the right to be exempt from the financial and judicial century. administration of the sheriff, to pay their dues to the crown in the form of a gross sum settled by a direct negotiation with the exchequer, to hold their own courts under their own officers, to elect their own bailiffs, and in some instances a grants the same right to Nottingham, see Charter Rolls, p. 39. 1 "When municipal rights were granted by the Plantagenet kings this officer (reeve) was replaced by the 'mayor,' whose appearance is always the sign of the establishment of an independent commune." Elton's article on "Municipality," in Enc. Brit., vol. xvii. p. 30. 2 Introduction to Smith's English Gilds, p. xxii., quoting from an unpublished paper written by Toulmin Smith in 1864 upon the “Origin of Corporations." 3 Brentano's Essay in Smith's English Gilds, p. xciii. 4 Stubbs, Const. Hist., vol. iii. pp. 565, 566. of things at thirteenth mayor, and, above all, the right to regulate their internal trade through by-laws enacted by their gild-merchant. Such was the general nature of the municipal rights recognized or confirmed in the charters which were granted by the Plantagenet kings. In the numerous charters issued by Richard and John, nearly every stage can be traced in the unequal march of the English towns towards municipal completeness. At the head of the column stands the great city of London, whose constitution is the model after which the privileges of all larger towns are modelled. A month before the Great Charter was extorted from John, he granted to the barones of May, 1215. the city of London the right to elect their mayor annually; and in the charter itself provision was made that "the city of London shall have all its ancient liberties and free customs, as well by land as by water: furthermore we will grant that all other cities and boroughs, and towns and ports, shall have all their liberties and free customs." 2 John's charter to London, Summary. Such in general terms was the stage of development reached by the cities and towns when the parliamentary period begins. The more advanced have attained a complete municipal existence as communes or corporations, while the rest are advancing towards the common goal at different rates of progress. Under this condition of things there is, of course, a great variety of local usage, and an utter lack of uniformity in the internal arrangements through which the cities and towns are governed. "Roughly, however, we may divide them into two classes, those in which the local administration was carried on by a ruling body of magistrates or magnates, and those in which it remained in the hands of the townspeople in general; the former being the type of the larger and more ancient municipalities, the latter that of the smaller towns, and of those whose corporate character was simpler and newer." 3 7. Having now indicated the stage of development reached by the two great classes of self-governing communities when the parliamentary period begins, the processes must next be drawn out through which the shires and towns appear by already enjoyed." Bretano's Essay, p. cv. 1 "It became a general rule to confirm the gild of a town by granting it all the liberties which another town 2 Charter Rolls, p. 207. 8 Stubbs, Const. Hist., vol. ii. p. 217. of the shire tives in the council, and union in one house. writ sum sentatives ment, 1213. their representatives in the national council, and through Appearance which such representatives finally unite in the formation of and town the house of commons. The records of the year 1213 furnish representathe earliest authentic instance of the shire communities being national called upon to send representatives to a national council. their final On the 7th of November the king called a council at Oxford to which the sheriffs were directed to summon, besides the Earliest armed force of the knights, quatuor discretos homines de moning comitatu tuo illuc venire facias ad nos ad eundem terminum shire repread loquendum nobiscum de negotiis regni nostri.1 The im- to parlia memorial practice of sending the reeve and four men as representatives of the township to the shire-moot thus widened into the practice of sending "four discreet men" as representatives of the county to confer with the king in his great council touching the affairs of the kingdom.2 The next instance in which it is clear that representatives of the shire were summoned to parliament occurs in 1254, when the The writ of sheriffs are commanded to return, duos de uno comitatu et 1254. duos de alio, ad providendum, una cum militibus aliorum comitatuum quos ad eundem diem vocari fecimus, quale auxilium nobis in tanta necessitate impendere voluerint. In the language of the Lords' Report, this "seems to have been the first instance appearing upon any record now extant, of an attempt to substitute representatives elected by bodies of men for the attendance of the individuals so to be represented, personally or by their several procurators, in an assembly convened for the purpose of obtaining an aid."4 Gloucester and Earl Simon joined in calling an assembly at Alban's in St. Alban's, to which were summoned three knights from 1261. every shire south of Trent. The significant words in the writ, in which the king afterwards commanded the sheriffs to send these knights, not to St. Alban's but to Windsor, are colloquium habituros.5 In 1264, after his triumph at Lewes, Earl Simon caused writs to be issued summoning four knights from each shire to meet the king in parliament, tractaturi de negotiis prædictis. In 1261 The assem bly at St. nobiscum To the famous parliament Earl Simon's liament of 1265. of 1265 the representatives from the shires and towns were famous par- summoned in the same form as the magnates.1 Passing over the anomalous assemblies which met prior to the year 1290, we find in that year the knights of the shire summoned ad consulendum et consentiendum pro se et communitate. To Edward's model parliament which met in 1295- from which liament of time the attendance of representatives from both shires and Edward's model par 1295. Knights of the shire elected by the whole body of towns has been continuous, or nearly so- both knights and burgesses are summoned ad faciendum quod tunc de communi consilio ordinabitur in præmissis.3 The writs which thus clearly explain the purpose for which the knights of the shire were summoned to the national council fail, however, to disclose who were the electors of the repfreeholders resentative members. From the returns to the writs, it is in full county court. plain that they were elected per totam communitatem, or in pleno comitatu, or per consensum totius comitatus. Beyond this the record evidence does not go; only by inference from the well established usage of the county court can be determined who were the electors by whom the shire representatives were chosen. Despite all the conflicting views which have been expressed concerning the representative character in which the elected knights first appear in the national council, the following statement may be accepted as a substantial embodiment of the conclusions which have been established by the latest and ripest research. It seems to be more than Fourteenth probable that the fourteenth article of the Great Charter, which provided that the lesser tenants-in-chief should be summoned by the sheriffs generally in the shires, was intended to rouse the lesser baronage to the exercise of rights which had practically passed into desuetude. But the fact that this provision was omitted from the very first reissue of the charter is persuasive to prove that the principle requiring the whole body of the lesser barons to attend in person never received more than a limited application in practice. The fact seems to be unquestioned that from the issuance of the Great Charter down to the time when the representative members appear, the great council, although occasionally attended by a few of article of Charter, 1 Lords' Report, App. i. p. 33. See, 8 Lords' Report, App. i. p. 66. 4 See Parl. Writs, i. 21-24, 38, 40, 41; Stubbs, Const. Hist., vol. ii. p. 226. |