Part 12 (1/2)

King and Parliament held diametrically opposite views of their relative powers, and both appealed to the past in justification of their opinions. But England's past was a long story, and its successive chapters read very variously. James appealed to the immediate past to justify his possession of the ”inseparable rights and prerogatives annexed to our imperial crown, whereof, not only in the times of other our progenitors, but in the blessed reign of our late predecessor, that renowned queen Elizabeth, we found our crown actually possessed.”

[Footnote: King's proclamation on dissolving Parliament, January 6,1622.] The leaders of the House of Commons, on the other hand, were looking back to a more remote past, the birth-time and period of acknowledgment by the crown of the parliamentary privileges and English liberties which now seemed to them endangered.

As a matter of fact, Parliament, like all other political inst.i.tutions in England, had grown up around the monarchy. Primarily, the Houses were a body of advisers of the king, summoned by him to give their counsel in matters in which he needed the advice of the various cla.s.ses of his subjects; and to give their consent to taxation, which would require sacrifice on the part of the people. Once organized, however, Parliament gathered into itself all the shadowy survivals of self- government coming down from a still earlier period; it reflected the local independence of the towns and counties which sent members to the House of Commons, and the corporate rights of the church and individual privileges of the n.o.bility, which const.i.tuted its upper house; it served as the instrument by which the nation at various times protected itself against bad government; it embodied the fifteenth-century ideal of a government conjointly by king and estates of the realm.

Moreover, Parliament gained by repeated use and acknowledgment an established procedure and powers, well-understood rights, and precedents frequently invoked. The four fundamental privileges of members of Parliament were: (1) freedom of elections: (2) freedom from arrest during the sessions; (3) freedom of speech in debate; (4) freedom of access to the sovereign for their speaker, if not for all individually. These were frequently acknowledged by the sovereign at the opening of Parliament and enrolled upon its records, and still more frequently a.s.serted in the House. [Footnote: D'Ewes, Journals, 65, 66, 175, 236, 259, 411, 460, etc; Petyt, Jus Parliamentarium, 227-243, quoted in Prothero, Select Statutes, 289; Commons Journals, I., 431, etc.] The powers of Parliament were less clearly defined than its privileges; but its control over taxation and legislation, its right to impeach the king's ministers and to discuss all matters of interest to the nation, were frequently a.s.serted, and usually conceded. [Footnote: Gneist, Hist. of the English Const.i.tution, chaps. v., x.x.xii.] Thus Parliament was much more than a royal council; it was a body with claims to co-ordinate powers of government. How far, at any one time, these privileges and powers were conceded, how far they were denied or encroached upon by the crown, was largely dependent on circ.u.mstances.

These circ.u.mstances during Tudor times had been such as to put the initiative and much of the actual power of government in the hands of the king, and parliamentary powers were largely in abeyance. Parliament during this time was a conservative body; the monarchy was the innovating element of the state.

Circ.u.mstances changed with the closing years of the sixteenth century and favored an increase of parliamentary partic.i.p.ation in government.

With all her prestige the old queen herself had to feel it. [Footnote: D'Ewes, Journals, 602.] With the accession of the half-foreign Stuarts, with the cessation of danger of invasion from abroad, with the increasing weight of exactions of an unwise and unpopular personal government, with the growing interest of the seventeenth century in matters of politics, and, above all, with the development of Puritanism, individualistic and self-a.s.sertive in its very essence, Parliament was sure to rea.s.sert all the powers which it had ever possessed, and likely to seek to extend them. The king was now the conservative element, while Parliament, if recent conditions be taken as the standard, was the innovating party.

It was exactly at this period of contest and of unsettled balance of powers that the early settlements were made in America. The colonists represented almost without exception what might be called the parliamentarian view. It was not the king, the--courtiers, the n.o.bles, the judges, the higher clergy, the official cla.s.ses, and the fellows of the universities that emigrated. Among these the royalist spirit was strong, but they remained in England. It was rather from the middle and lower cla.s.ses, from those who were on poor terms with the king, whatever their position in society, from the persecuted, the dissatisfied, the restless, that the great body of colonists was drawn; and among these cla.s.ses the views upheld by the House of Commons were wide-spread. The same thing was true of those companies which, remaining in England, yet had so much influence over the destinies of the American colonies. The most influential elements in the Virginia Company, the Ma.s.sachusetts Bay Company, and other similar bodies were distinctly opposed to the high claims of the king. Yet unanimity did not exist even among those who, left England; and strong as the predilection was among the founders of America for self-government and representative inst.i.tutions, the Old-World differences of view were transferred to the colonies and played a part in local struggles there.

Much of the disputation between James and the House of Commons concerned the privileges of Parliament, and might be suspected of being largely the natural jealousy of its own rights felt and a.s.serted by an ancient corporation. But Parliament was waging war for larger objects than the rights of its own body; it felt itself to be defending in its own privileges the personal rights of all Englishmen. In the contested election case of 1604 a member declared that ”the case of Sir John Fortescue and Sir Francis Goodwin has become the case of the whole kingdom.” [Footnote: Commons Journals, I, 159, March 30, 1604] ”The rights and liberties of your subjects of England and the privileges of this House,” is a formula that appears frequently in the doc.u.ments of the time, and combines the two objects of the contest, in which the latter were upheld largely because they supported and protected the former.

These ancient rights of the people were less definite than either the privileges or the powers of Parliament. They were, perhaps, attractive and valued somewhat in proportion to their vagueness. They certainly included right of freedom from arrest or imprisonment except on a definite charge and by due process of law; they included exemption from taxation except after consent of Parliament, [Footnote: Hakewell's argument in the Bates case of 1610 (State Trials, ed 1779, XI); Pet.i.tion of Right of 1628] they included protection against violence and injustice; they included the right of pet.i.tion to the king against any grievance, [Footnote: c.o.ke's speech on Pet.i.tion of Right (Parliamentary History, VIII., 104). VOL 1--19] and in general a right to have the laws enforced, yet to have nothing done to their disadvantage which was not in the law. It was the spirit rather than the letter of Magna Carta that was valued by the English people. As time pa.s.sed and under Charles I. the conflict between the parliamentary and the royal claims became more intense, the upholders of the former fell back more and more on the ancient rights and liberties of the people, and relatively less is said of parliamentary privileges. In the Pet.i.tion of Right of 1629, Parliament appeals to the Great Charter, to the Confirmation of the Charters, and to other early statements of personal liberties. Pym declared that ”the liberties of this House are inferior to the liberties of this kingdom.” When the civil war was actually imminent, in December, 1641, the Grand Remonstrance was issued as a statement of the contentions of the leaders in Parliament. In this doc.u.ment ”the people,” ”the liberties of subjects,” ”rights of the nation,” and other popular expressions are constantly used or implied.

[Footnote: Grand Remonstrance, SS 11, 19, 28, 40, 53, 57, 98, 130, etc., in Rushworth, Historical Collections, IV., 438.]

Ultimately, as a result of the struggles of the later years of the seventeenth century, the more important of such rights were formulated in the Bill of Rights of 1689. Thus the heritage of civil freedom which the people of England had traditionally enjoyed was neither taken from them by the strong monarchy of the sixteenth century nor forgotten in the struggle of Parliament for its own privileges in the seventeenth.

It was rea.s.serted with constantly new insistence in England, and was carried to America by the colonists as an acknowledged and valued possession.

CHAPTER XIV

THE ENGLISH COUNTY AND ITS OFFICERS (1600-1650)

The ordinary Englishman in the seventeenth century had much more to do with local than with national government. Only a few score men served the king as ministers, councillors, or judges; only a few hundred attended Parliament; while as lords lieutenant, sheriffs, justices of the peace, constables, church-wardens, mayors, aldermen, and in other capacities of local and limited but real power, many thousands must have taken a part in public affairs. National government was remote from the ordinary man; local government came close to him. The political inst.i.tutions which surrounded him on all sides, insensibly controlling every action and forming the world to which his outward life conformed, were familiar to him and affected his habits and ideas, whether he remained at home or emigrated to the colonies, far more directly than did the political inst.i.tutions of the nation.

The oldest, most stable, and most important unit of local government was the s.h.i.+re, or county. The conspicuous official and historic head of the county was the sheriff. As Camden says, ”Every year some one of the gentlemen inhabitants is made ruler of the county wherein he dwelleth.”

[Footnote: Camden, Britannia (ed. 1637), 160.] Though no longer relatively so powerful as in the Middle Ages, his position was even yet one of much dignity and importance. On occasions of public ceremony he had an imposing personal retinue, carried a white rod of office, and wore official robes. [Footnote: King, The Vale-Royall, 40; North, Examen, quoted in Dict. Nat. Biog., XII., 121.] Richard Evelyn, when sheriff, ”had one hundred and sixteen servants in liverys, every one liveryed in greene sattin doubliets; divers gentlemen and persons of quality waited on him in the same garbe and habit.” [Footnote: Evelyn, Diary, 1634.] William Ffarrington, sheriff of Lancas.h.i.+re in 1636, kept up the following household: a steward, a clerk of the kitchen, two yeomen of the plate cupboard, a yeoman of the wine-cellar, two attendants on the sheriff's chamber, an usher of the hall, two chamberlains, four butlers and butler's a.s.sistants, eight cooks, five scullions, a porter, a baker, a caterer, a slaughterman, a poulterer, two watchmen for the horses, two men to attend the docket door each day by turns, twenty men to attend upon the prisoners each day by turns-- altogether a household of fifty-six servants. [Footnote: The Shrievalty of William Ffarrington, 17 (Chetham Society). This reference and a number of those which follow I owe to the industry and good scholars.h.i.+p of Mr. Charles Burrows, a young man of great promise, who, after studying at the universities of Chicago and Pennsylvania, and beginning the preparation of a thesis on the Subject of this chapter, went abroad for further study and died in 1902.] With the need for such official outlays, it is no wonder that a long series of statutes should have provided that the sheriff should be one who had land in the county ”sufficient to answer king and people.” [Footnote: 9 Ed. II., st. 2; 4 Ed. III., chap, ix.; 5 Ed. III., chaps, iv., xiii., xiv.] In fact, he was usually a knight or a man of such rank as might be made a knight. A list of the sheriffs of the county of Chester during the reigns of James I. and Charles I. shows twenty-three knights and twenty-three without t.i.tle, but presumably of equal rank in society. [Footnote: King, The Vale-Royall, 233.] Many of the best-known men of this period, such as Sir Thomas Wentworth, Sir Ralph Verney, Sir William Selby, and Sir Anthony Ashley Cooper, afterwards earl of Shaftesbury, acted at various times as sheriffs of their respective counties. They were direct successors of Chaucer's Franklyn, of whom we are told, ”A schirreeve had he been.” With some exceptions, such as those cities which had their own elective sheriffs, and those pairs of counties which were conjoined under one sheriff, each s.h.i.+re had one sheriff, appointed in the following manner: every year, on November 1, a special meeting of the Privy Council was held at the exchequer, a number of the higher government officials being especially required to be present; here a list of three persons of distinction from each county, qualified to fill the office of sheriff, was made up and submitted to the king, who ”p.r.i.c.ked” one from each three; the men thus chosen were then bound to seek letters-patent, and take their oaths as sheriffs for the ensuing year in their respective counties. [Footnote: Fortescue, De Laudibus Legum Angliae, chap. xxiv.] By law the same man could not be appointed for two successive years. [Footnote: 14 Ed. III., chap, vii., etc.] This was probably a welcome restriction, as the appointees bore somewhat unwillingly the burdens and expenditures of the office.

[Footnote: Hist. MSS. Commission, Report VII., App., 3-9, 25.] In 1630 we find Sir Francis c.o.ke writing to ask Sir J. c.o.ke ”to keep my loving neighbour and friend Edward Revell of Brookhill from being sheriff this year”;[Footnote: Ibid., Report XII., App. I., 414. ] and in 1663 Evelyn enters in his diary, ”To court to get Sir John Evelyn, of G.o.dstone, off from being sheriff of Surrey.” [Footnote: November 6, 1663.] It is true that the office brought with it many small fees. A long list of customary payments for the issue of various writs and the performance of various services by the sheriff is given in the manuals of the time.

[Footnote: Greenwood, The County Court, 183.] On the other hand, the fees payable by the sheriff to the officials of the exchequer on his appointment and discharge, [Footnote: Ibid., 122.] the expenses of his office, and the requirements of his position for social expenditure were very considerable, and the comment of a contemporary law-writer was, no doubt, in most cases, justified: ”But the sheriff is at much more charge, which is laid out and is disbursed during his sheriffwick, as experience will inform him.”[Footnote: Greenwood, The County Court, 187.] Another burden of the sheriff's office was enforced residence in his own county during his term of service. The records are overspread with fines for the violation of this requirement and with requests for dispensations from conformity to it.[Footnote: Hist. MSS. Commission, Report VII., App., 5; Rushworth, Historical Collections, II., App., 27, Deputy Keeper of the Public Records, Reports, XLIII.,151; Cal. of State Pap., Dom., 1628-1629, pp., 396, 403, etc.] A personage in an old play says of the ladies of his time, ”I think they would rather marry a London jailer than a high-sheriff of a county, since neither can stir from his employment.” [Footnote: Wycherly, The Country Wife, act iv., sc. 1.] The t.i.tle high-sheriff, frequently used instead of the simple term sheriff, had no especial significance and was probably suggested by a desire to discriminate him from the under-sheriff. The exacting duties of the office led the sheriff very frequently to appoint, at his own cost, such a subordinate and to empower him to perform such services as could be legally transferred to another. He was usually a man of some position, ”learned somewhat in the law, especially if the sheriff be not learned himselfe.” [Footnote: Smith, Commonwealth of England, book II., chap. xvii.] He was a source of considerable expense to his superior, an estimate of annual cost made in 1628 amounting to 352 Pounds 18s. 6d. He relieved the sheriff, however, of his more onerous and invidious duties. North declared that ”Clifford and Shaftesbury looked like high-sheriff and under-sheriff. The former held the white staff and had his name to all returns, but all the business, especially the knavish part, was done by the latter.” [Footnote: Examen, 8, quoted in Dict. Nat, Biog., XII., 113.]

The duties of the sheriff were many and varied; some of them old judicial and administrative functions, others new and irregular services demanded of him by the innovating Tudor and Stuart sovereigns.

Every month he must hold a county court, at which were brought suits for debts of less than forty s.h.i.+llings, suits for damages, for breach of contract, for non-payment of wages, for not returning borrowed or pledged articles, and a hundred other petty causes. [Footnote: Fitzherbert, Natura Brevium, 28 d, etc.] In this court also, and at some other times and places, he must proclaim certain ancient statutes and new laws and ordinances for the information and warning of the people.

The county court as a judicial body was, in the seventeenth century, a waning inst.i.tution, its competence and functions becoming rapidly obsolete; but occasionally it awakened suddenly to life, took on a new aspect, and became of unwonted importance. This occurred when a summons was issued for a new parliament, for the county court was the electing body of the knights of the s.h.i.+re, and to the next session after the writs for the parliament had been issued came the gentry and freeholders of the county to elect their representatives. [Footnote: Dalton, Officium Vicecomitum, chap. xcii.] There was often a great concourse and much excitement, and the petty disputes of poor suitors and the labors of obscure officials were for the time completely superseded. The sheriff, as presiding official at this election, as the returning officer of the elected members, and as the official charged with levying money for the payment of their wages and expenses, had an active and influential connection with the choice of members of Parliament. A long series of statutes checked the abuses connected with this influence; but even yet the sheriff exercised some power over the selection made, especially when he was a man of large influence in his county apart from his office.[Footnote: Ibid.]

There was great irregularity in the process of election. Sometimes the members were elected by acclamation, sometimes by show of hands, sometimes by a poll, one voter after another expressing orally his preference. The election should, by law, be held between eight and eleven o'clock in the morning, but a sheriff sometimes postponed the election, or refused to acknowledge the candidate insisted on by the electors, or threw out votes which he claimed were not properly given, or closed the election when his preferred candidate was in an advantageous position. The journals of the House of Commons are filled with reports of contested elections, and sheriffs are repeatedly found kneeling at the bar of the House to receive censure or pardon for such offences.[Footnote: Commons Journals, I., 511, 556, 801, 854, 884, etc.]

A period of scarcely less responsibility for the sheriff was the semi- annual a.s.sizes, when the judges in their robes, on their circuit, with all the dignity of the judicial representatives of the crown, visited the county.[Footnote: Rushworth, Historical Collections, I., 294.] It was the duty of the sheriff to see that grand and petty juries were ready to perform the services required of them by these judges, and to carry out the mandates and judgments of the court. These judgments, which he had to execute either in person or by his under-sheriff or bailiffs, varied in character from the serving of writs or levying upon property for debt to the infliction of the death penalty. [Footnote: Greenwood, 133; Fortescue, De Laudibus Legum Angliae, chap xxiv.] The sheriff had also the supervision of the jail and the appointment of jailers. His presence at the two a.s.sizes of the year was considered one of his most fundamental duties, and heavy fines were imposed when occasionally a sheriff was absent from his post at that time.

[Footnote: Rushworth, Historical Collections, II., App., 27; Cal. of State Pap., Dom, 1628-1629, p. 396.] He not only met the judges with his retinue and furnished them a guard, but feasted them and acted as a sort of local host to the circuit court so long as it was in session in his county.

Closely a.n.a.logous to this duty of the sheriff was the requirement that he should be present, provide jurymen, and carry out the behests of the justices of the peace at their quarter-sessions; but the justices were, like himself, local officers belonging to the county, not visitors from the capital, so that their sessions had little of the ceremony and excitement of the a.s.sizes; and, in fact, the sheriff was usually represented there by the under-sheriff acting as his deputy. [Footnote: Lister, Two Earliest Sessions Rolls of West Riding of Yorks.h.i.+re, 1597- 1602, III., 28, 44, 64, etc.]

In addition to these and many less conspicuous regular duties the sheriff in the early seventeenth century was utilized from time to time by the central government in irregular and somewhat questionable services. When James revived the distraint of knighthood it was the sheriffs who were required to make out lists of all who had 40 Pounds a year of lands or rents and to order them to appear at court and receive knighthood. When Charles I. revived the imposition of s.h.i.+p-money it was to the sheriff of each county that the writ was sent, stating the amount to be paid by his county and ordering him to arrange with the lower officials for its a.s.sessment and collection.

The patriotic resistance of Hampden found a parallel in the pa.s.sive opposition of some of the sheriffs to this demand upon them. On June 30, 1640, the King's Council wrote to the sheriff of Huntingdons.h.i.+re: ”We have read and considered of your letter of the 24th of the present, wherein we perceive that you have been rather industrious to represent the difficulties which, as you say, you find in the execution of his majesty's writ, than circ.u.mspect or careful, as you ought to have been, in overcoming and removing them,... and we cannot but make this judgment upon your proceedings, that instead of doing your duty in person and compelling others subordinate to you to do theirs, you endeavor to make excuses both for yourself and them.” [Footnote: Rushworth, Historical Collections, I, 1203.]