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Amongst the new products found have endeavoured to show, was this : growing upon the old soil after the -instead of the commonwealth being deluge had subsided, was one of a regarded as the great corporate body, political nature. Perhaps the chief to the welfare of which the desires boast of the middle ages is, that they and passions of the individual should gave
birth to the system of represen- be subordinated, the individual stood tative government-an invention, as forth in his own claims, asserted his it has been justly called, by which free own rights, made the best stipulation institutions become applicable to exten- he could for their preservation and the sive territories. The old form of the re- good of the community; its order and public was appropriate only to a single government were left to be the chance city; the plan of representation allows result of these several treaties. Liberty an extensive territory to be united un- assumed a quite different form from der a free and equal government.
that which it bore in the ancient reWe trace representation as a lineal publics. There was here no public; descendant from that very feudalism there was scarce any representative of to which it is now seen in the light of the public; all was private property, a direct antagonist. Feudalism could all was personal privilege,—the conflict never itself have been converted into and compromise of individual claim. a good government, for its chief cha. Every baron, every freeholder, had racteristic consisted in the absence made his distinct treaty with his soveof any adequate idea of a state. It reign; he held his land on tenure, yielded inevitably before the love of that is, on condition of performing order. It was not conquered by arms. certain services to his lord ; these serWithout aid of a standing army, we vices rendered, he had done all that see monarchy in Spain, in France, could be rightfully demanded; if he in England, every where prevailing did more, it was voluntary. He had It was monarchy alone that could give made his bargain with the state, and these countries any approximation to to that he held. free and equal government; and there- The situation of the Jews in all the fore it naturally grew with their in- feudal governments illustrates the creasing wealth and intelligence, and manner in which the commonwealth increasing desire for good govern. was built up. Contrary to custom, ment. But though such was the im- they could here make no good bargain practicable nature of feudalism itself, for themselves. They were attached yet it infused a free spirit into men to the soil neither as its lords and conwhich tempered the monarchies of querors, nor as its bound cultivators ; Europe, and moreover gave birth to nor could the pious burgess associate a political offspring, which was fated, with them, nor they with him, in those not only to check, but to compete guilds and corporations which in their with monarchy.
essence were a species of voluntary We shall take our own House of association. They were put quite out Commons as the type and exemplar of the pale of government. The king of what was passing in the mind of seized upon them, by virtue of his preEurope. We suppose no one is so rogative; they became part of the little given to reflection as to be satis- Crown property—a sort of treasurefied with ascribing the origin of our trove. The king protected and pilsecond house of Parliament to the laged them at his pleasure. He somewrits issued by Simon Mountfort, in times even lent out his Jews, and took the disturbed reign of Henry III. ; up money upon them as a security. We this is an historical incident, which know that religious animosity led, in may or may not have hastened the the first instance, to their being thus development of that institution, which segregated from the rest of the world ; dates its constitutional existence from but under no government where laws the succeeding reign of Edward I. were made in the true spirit of legisWe are all prepared to trace such an lation, as having the good of a whole institution, not to an incident of this community in prospect, could any description, but to political notions body of men be allowed to remain in working in the mind of the people at this predicament. · They would either large.
have been expelled entirely, or the The character of feudalism, as we common rights of citizens, the usual
protection of person and property, necessary–for it was impossible would have been extended to them. that all the burgesses should attend,
This, then, was the prevailing spirit and come into the presence of their of feudal times :-The individual en- king, so neither was it considered tered into a compact with the govern- necessary that every town should send ing power, separating himself, as it its deputation or representatives; the were, from that community of which, interest of such as did not, being idenin fact, he was a component part, and tical with, and therefore under the treating with it in his own person. protection of those who did. Some The king, however powerful, never of the towns, as is well known, petithought of laying any additional tax tioned to be spared the expense and upon the feudatory without his con- burden of sending a deputation. sent. But how, in this respect, were Thus was formed and perpetuated the towns or burghs situated? These, our House of Commons.
It arose if in the royal demesne, originally from the application to chartered formed part of the crown property, towns of the feudal notion that those and the king could levy a talliage who had made their stipulation with upon them at his pleasure. If they government could not further be taxed fell within the barony of the greater without their own consent ;-a notion lord, the lord could, in the same man- which soon became a prevailing sentiner, exact tribute from them. But ment of the people at large. The the royal towns obtained charters from county member represented the small the king, by which they were relieved freeholders, who had an undoubted from uncertain and arbitrary taxation right to partake in this political sention the payment of a fixed and stipu- ment. The county courts, it may be lated sum.
These charters, many of observed, which had been preserved which weregranted by King John, were from Saxon times, gave a facility for either purchased from the necessity, this mode of representation, which or granted by the policy of the crown. otherwise perhaps might not have Such burghs as were the property of been devised. Thus, our second the barons obtained relief in a similar branch of the Legislature arose from way; the inhabitants paid a certain no endeavour to approximate the confixed sum for their land and houses, stitution to a republic, nor from any and then held by what was called bur design on the part of the people to gage tenure.
The towns were now share in the general work of legislaplaced, with respect to the sovereign tion; and nothing can be more absurd power, in the same independent posi- than the clamour (it cannot be called tion as the nobles ; they had made argument) of those who, while they their treaty, though they could not are carrying forward and amplifying always guard it from infringement the theory of representation, talk of quite so effectually as the barons. But reforming and returning to ancestral the wants of the crown and the wealth purity. It was some time before the of the burghs were both increasing Commons took any other part in le. a new composition must be made; but gislation than the humble one of pethe will of both parties must now be titioning. Their petitions were reconsulted. The power of the king ferred by the crown to his council, or and of his great council of peers might to the lords of Parliament, who, if be, and doubtless was, sufficient to they were granted, converted them enforce a tax upon the towns; but it into a law. They were burghers who was ever the more profitable plan to came up, and often very reluctantly, respect the feeling of right which the to hear the wants of their sovereign, burgess now shared with the noble. and fix their tributes ; taking occasion, man, and induce him to tax himself. however, to bring with them their To enter into a new treaty with the grievances along with their money. towns-a treaty to be renewed as often This character of men who came up as the want of money was renewed to be taxed, they long preserved. We was scarcely possible, without some find them unwilling to enter on quessystem of deputation. Citizens were tions of peace and war, when these are sent up from the different towns to proposed by the king; they declare the meeting of the great council, who, that such high and lofty matters are on hearing the wants of the sove- above their simple understandings; reign, would appoint the quota to be they decline giving any opinion. This paid by themselves. As it was not affectation of modesty, which has been
described as a notable humility, we their representatives had grown more have no doubt arose from sound mer. feeble and insignificant, and political cantile policy. They were unwilling power appears to have deserted them to give any pledge, by participating in as their wealth and knowledge, which the king's counsels, that they would we are told are the true sources of support those counsels with their political power, had increased. The purses; nor did they wish to see too difficulty, which else would be very clearly those exigencies of the state, startling, is solved by this considerawhich were laid before them, they tion ;-that the privileges and powers knew, as foundations for a pecuniary of the House of Commons in the reign demand.
of Richard II. flourished under the But though the principle of repre- protection of the Peers of Parliament. sentation was thus limited in its ori- What they did was not done in their gin, it was one well calculated for own strength. The Commons had growth. The Commons began to re- not themselves grown weaker in the present their constituents on time of Henry VIII., but they had subjects than one, and gradually crept lost their powerful allies. These had up to an equality with the hereditary indeed become politically feeble; they legislators which the feudal system had been transformed by the change had provided. Their petitions are of manners which England with all listened to with spect in the reign of Europe was undergoing, from indeEdward I. In the commencement of pendent barons, jealous of their rights, that of Edward III. their assent to and prompt to maintain them by force the statutes is first mentioned ; pro- of arms, into submissive and silken bably, as Hallam suggests, with the courtiers, competing for the favours of object only of giving additional weight a monarch ; or, at all events, into genand popularity to a law which would tlemen willing to lead a very different have been equally valid without that life from that which could alone preassent. What, during the long reign serve their feudal superiority. The of Edward III., grew to be a custom, Commons under Richard II. were as became a right in that of his successor little able to stand alone, or in the Richard II. In the reign following, front of the battle, against the king, as namely that of Henry IV., they made under Henry VIII. The nobility took an attempt to share the judicial func- them in alliance, and the Lower House tions of Parliament; in this they faile itself gained part of its strength from ed, but their equality in the legislative that minor nobility which represented power was at the same time distinctly the counties, and which shared in the acknowledged.
fluctuations of that order to which it Still they were far, even under the belonged. We may always observe, Lancastrian Kings, from having at- that whenever Richard is predominant tained the position 'we recognise as over his refractory barons, the Com. due to a House of Representatives. mons drop their lofty tone. When Circumstances in the reigns of Richard the confederacy of the Lords Appellant II. and his successor, gave to the is crushed or dissolved, the privilege House of Commons an appearance of of Parliament is found to be no propower which it by no means possess- tection against the most extravagant ed; but its substantial and independent resentment of the king. During this power dates from a subsequent period. period, and through the reign of the How is it, we have heard the question Lancastrians, the nobility are seen as sometimes asked, that the Commons, the rude conservators of the liberties who under Richard II. made so bold of the country and the rights of Para stand against the royal prerogative liament. Under the Tudors they for. -impeached the King's Ministers, feited this honourable character; they and Chancellor, and an Archbishop of deserted their post, or rather, they Canterbury, and controlled and scru- were no longer the men capable of tinized all the expenses of the Crown occupying it. The Commons were -were the passive tools of a court now left to themselves; and when they under Henry VIII., and had scarce next grew strong, their strength was spirit enough to mutter something their own. In the ensuing dynasty of about their rights and privileges the Stuarts, our house of representaunder Elizabeth and James ? The tives obtained and abused an indepeople of England had grown more pendent and predominating power. wealthy, more enlightened, and yet Were we to travel through Europe,
especially to Spain and the Nether- principle of conduct—had advanced a lands, we should still more distinctly step in the art of government-this see how representation followed the would be a great event, charter, and grew out of feudal no- would hardly be traceable to some one tions. But we have no wish to weary s trifling cause,” but rather to very our readers by any such survey.
A many causes acting on the public glance, however, at the corresponding mind, some remote, some direct, and history of our neighbour France, while acting perhaps through a long period it will show the same principles ope- of time. The introduction of the rating elsewhere, will also corroborate principle of representation is a great what has been said of the progress of event; but we must reverse the usual our House of Commons. Notwith exclamation. All the pomp of cirstanding the advantage which is said cumstance attends upon the causeto have accrued to kingly power in the result itself steals unperceived into that country by reason of its having the world. The tumult and uproar of grown on the conquest of the great feudal times, and the barbarian confiefs, the same difficulty occurred to quest, were the noisy precursors that the crown of France as to that of Eug- prepared the way for this unheeded land in raising money without consent novelty. Society seems to have been of their subjects. There, too, the driven back to its first elements, in States-General were accordingly con- order that, at its reconstruction, anvened, to which the chartered towns other invention should be added to our sent their representatives. But in schemes of polity. France there was no union between Representation, viewed as a comthe burghers and the nobility; on the plete theory of politics-a theory contrary, the burghers were more which is to solve, for all future times, jealous of the privileges of the nobles the problem of human governmentthan even of the power of the Crown. is manifestly defective : it proceeds on These privileges were the first object the supposition that the wisest election of their attack: the Crown protected will be made by the greatest number the nobility, and the nobility were of electors, and carries with it the alwilling to assist him in dispensing together impracticable conclusion, that with the States-general.
a man is bound to obey the laws of This origin of the representative his country only on the ground of his system is a striking instance of the having given his assent, or having had indirect and circuitous route in which some share in their construction. Rehuman affairs seem to progress, and it presentation cannot safely pretend to instructs us to look at the notions pre. be more than a conventional method valent in the general mind for the real of electing the senate, or any other causes of momentous changes. “ What body of rulers. But then let this also great events from trifling causes be borne in mind, that we should never spring!” has been a frequent excla- have enjoyed the benefits of this conmation. But what are called “ great ventional institute, unless there had events are often such only to the existed in the country at large some imagination, or to the persons imme- notions of individual right, however diately concerned; they are perhaps obscure and ill-defined, leading to its matters of indifference in the real his adoption. A theory arose in the tory of mankind. The change of a minds of the commonalty which has its dynasty, or the conquest of a kingdom, fit result in a method of election, not may leave the life of man just where to be determined by the theory, but it was.
If it should be found that shaped according to the times and the society had gained a new idea, a new people.
THE JUDICIAL COMBAT.
CHIVALRY is the only remaining martial spirit of the times, and preinstitution of the middle ages that we pares us to expect that the virtues of are here desirous of characterizing; dawning civilisation would be grafted, but before we touch on this, (which as on their main stock, on the passions we shall do very lightly,) let us drop of the warrior. Nor is it, perhaps, a word, in passing, upon the Judicial undeserving of remark, that war had Combat, an elder and independent earned a sort of judicial sacredness institution, which reveals to us the before it was enlisted in the service of the cross, and called on to encamp the benefit of so enlightened a system around the tomb at Palestine.
of laws, those beneath the dignity of As to those numerous ordeals of a knight might confirm their testiwhich we read—such as walking mony by the weight of their cudgels, upon burning ploughshares, holding and champions were allowed to wo. in the hand a heated iron, or plunging men and to the clergy. And not only the supposed criminal in the water, to did this very compendious method of see whether he would sink or swim- judicial investigation decide on the they, no doubt, deserve to be enume- innocence or veracity of the individual rated amongst the historical curiosi- brought before the court, but if, after ties of the times; but we nowhere the facts had been determined, tlie law read, nor is it possible to believe, that itself were uncertain, the wisdom of they were ever the frequent and ordi- the Bench might be assisted by sendnary methods by which truth and ing down the issue to be tried in the falsehood, guilt and innocence, were lists. It was at one time an unsettled to be determined. They were too point whether the son of an elder unskilfully framed to have borne the brother, or the next living brother, test of repeated experiment; they should succeed to the estate-the law could only have been an occasional, was decided at the point of the lance. unsystematized folly; they belong According to the rules of the judirather to the manners than the juris- cial combat, the accused might not prudence of the people. There was only challenge his accuser, but might one mode of trial, however, partaking challenge any witness who gave his of the nature of an appeal to Heaven; testimony against him; and, on the namely, this of the judicial combat, continent, he might even challenge the which, though hardly less absurd, peers, or the baron himself who passed undoubtedly prevailed, and was the judgment on him. This was called favourite method of deciding all legal an appeal of false judgment, and was controversies, whether civil or cri- tried by arms, with great solemnity, in minal. But then the judicial combat the court of the king or the next suwas not only supported by a supersti- perior lord. On reading such a passage tious faith that victory would fall to as the following, which is extracted the true man or the innocent, it was from Robertson's Survey of the State demanded by a fierce and warlike of Europe, prefixed to his history of people, impatient of law, and confi- Charles V., one is quite perplexed, so dent in their prowess, who held it the egregious appears the folly it exposes, highest prerogative of free men to how to believe it; one is apt to make defend their own cause by their own a sort of mental reservation, and withright arm. It partook of the nature out venturing exactly to contradict the of the ordeal, but still more of another author, to resolve internally that there character ; namely, the permitted is some mistake or exaggeration. “To violence of men too rude and warlike complete," he says, “the absurdity of to submit to a peaceful arbitration of this military jurisprudence, even the their claims-who would have been character of a judge was not sacred satisfied with no decision in which from its violence. Any one of the force had not the casting.vote—who parties might interrupt a judge when would have thought
about to deliver his opinion; might “ Arms ridiculous, useless the forgery accuse him of iniquity and corruption Of brazen shield or spear,”
in the most reproachful terms, and unless with these they had been als throwing down his gauntlet, might lowed to maintain and establish their challenge him to defend his integrity own claims.
in the field; nor could he without inThe judicial combat was a sort of famy refuse to accept the defiance, or jurisprudence which the feudal baron decline to enter the lists against such could perhaps administer quite as well an adversary. The passage perhaps as the most learned judge who ever requires a little explanation. Robertson presided at Westminster Hall; and this is here speaking of this appeal of false made it still more acceptable among a judgment ; but the sacred character of rude nobility, proud of the privilege judge, which he somewhat indignantly of executing justice, and accounts pro- describes as being thus violated, was bably for its application to all persons, sustained, be it remembered, by the and to all manner of questions. That same sort of person as the challenger all ranks and conditions might have himself. These judges were not men