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European Background Of American History - (Vol. I of The American Nation: A History)
by Edward Potts Cheyney
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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 nobles, the judges, the higher clergy, the official classes, 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 classes, 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 classes 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 Massachusetts 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 institutions, 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 asserted 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 documents 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); Petition of Right of 1628] they included protection against violence and injustice; they included the right of petition to the king against any grievance, [Footnote: Coke's speech on Petition 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 passed 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 Petition 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 document "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 reasserted 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 institutions 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 institutions of the nation.

The oldest, most stable, and most important unit of local government was the shire, 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 Lancashire 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 assistants, 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 scholarship 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 title, 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 shire 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 "pricked" 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 Coke writing to ask Sir J. Coke "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 Godstone, 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 title 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 shillings, 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 institution, 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 shire, 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 assizes, 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 assizes 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 analogous 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 assizes; 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 Yorkshire, 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 ship-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 assessment and collection.

The patriotic resistance of Hampden found a parallel in the passive opposition of some of the sheriffs to this demand upon them. On June 30, 1640, the King's Council wrote to the sheriff of Huntingdonshire: "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 circumspect 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.]

Alongside of the sheriff at the head of the shire was another officer, the lord-lieutenant, whose position, although but recently attained, was in some ways more conspicuous and in certain exigencies more powerful than his. No statute or other formal action provided for the original creation of the lord-lieutenancy, and it is probable that Henry VIII. simply began the habit of delegating his military power in the shires to such officers. Early in the reign of Edward VI., October, 1549, they are mentioned as existing in the counties, and by 1600 their office was fully established.[Footnote: 3 and 4 Ed VI, chap v, in Statutes of the Realm, IV, 107.]This position was usually held by the greatest nobleman with estates in the county, and he appointed as his deputies various knights and gentlemen of high position; as when, in 1626, the duke of Buckingham was lord-lieutenant of Bucks, and Sir Edward Verney and five others were his deputies in that county. Although purely honorary, the appointment was one of much dignity and responsibility in military matters.

It was the duty of the lord-lieutenant in times of peace to see that the musters of the trained bands were regularly held, that the militia- men had their arms, and that men of higher rank who owed military service to the crown were prepared to perform it; in time of war to levy, muster, and train soldiers, fix the quotas of the hundreds and townships, see to the payment of troops, the collection of horses, and equipment generally, until the recruits were actually handed over to their officers. It was also their duty to see that the beacons were kept in order. The lords-lieutenant must be present, by an order of 1615, nine months in the year [Footnote: Cal. of State Pap., Dom., 1611-1618, p. 337.] in their counties; but there was no such rigorous requirement of constant residence as in the case of the sheriff, nor was the appointment restricted to a single year.

Such an official as the lord-lieutenant was not likely to be left unburdened with other duties when the government was struggling to obtain the enforcement of its laws, and, as a matter of fact, functions quite unmilitary were imposed upon him. In 1637 the council orders the lords-lieutenant of six of the eastern counties to assist in the better enforcement of the acts for the drainage of the marshes. [Footnote: Cal. of State Pap., Dom., 1637, p. 92.] In 1621 they are to investigate frauds of his majesty's carters. [Footnote: Hist. MSS. Commission, Report VII., App., 670.] They are asked to help collect subsidies and benevolences, to search for popish recusants, to oversee ale-houses, slaughter-houses, and the assize of bread and ale, to assist in the administration of poor relief and the suppression of vagrancy. [Footnote: Chetham Society, Lancashire Lieutenancy, I, Int., 19; Camden Society, Verney Papers, 37, 88.] In 1619 the Lords of the Council write to the lieutenant of Surrey asking him to urge co-operation in a lottery for the success of "the English colonies planted in Virginia, to accept the sums adventured, and to report to the treasurer and council of Virginia." [Footnote: Hist. MSS. Commission, Report VII., App., 670.] Much less dignified in position than either the lord- lieutenant or the sheriff, and yet filling an old and important office, was the coroner. He was elected by the freeholders of the county in the county court, and his oath was administered by the county clerk. He was, therefore, more distinctly local and representative than the other county officers, who were appointed by the crown; and as a result he was the only officer whose office did not terminate with the death of the king. Notwithstanding the generality of duties indicated by his name, "custos placitarum coronae," his functions were few beyond the fundamental duty of investigating sudden deaths and binding over for trial such persons as were indicated by the jury through which he made his inquest. [Footnote: Smith, Commonwealth of England, book II., chap. xxiv.] Under some circumstances the coroner took the place of the sheriff, and in general his position looked back to a time when it was of greater significance than it had become in the seventeenth century. [Footnote: Greenwood, The County Court, 258.]



CHAPTER XV

ENGLISH JUSTICES OF THE PEACE (1600-1650)

However extensive the duties of the officers whose functions are described above, the real men-of-all-work in the counties at this time were the justices of the peace. The law required that a justice of the peace must have lands and tenements to the value of L 20 a year, the amount of the legal knight's fee; [Footnote: 18 Henry VI., chap. xi] but ordinarily he had much greater property. John Evelyn's father, who has been so often referred to as a typical country gentleman of the early seventeenth century, had an estate of L 4000 a year when he was successively sheriff and justice of the peace. [Footnote: Evelyn, Diary, year 1634] The justice of the peace, like the sheriff, the lord- lieutenant, and the coroner, was expected to perform his public services as part of his patriotic duty. It is true that certain statutes provided that part of the fines for any violation should go to the justices before whom the violators were prosecuted; two or three others gave small fees to the justice for affixing his seal or signing a document; but these were apparently casual efforts to secure enforcement, and can have brought no appreciable return to the justices. The law gave each justice 2s. for each day of quarter- sessions up to three days; but this could have produced at most only 6s., and seems to have been usually jointly expended by the magistrates in a dinner.

In an interesting speech by a Mr. Glascock in the House of Commons, December 16, 1601, two equally undesirable justices are described— first, the one "who from base stock and lineage by his wealth is gotten to be within the commission"; the other "a gentleman born, virtuous, discreet, and wise, yet poor and needy. And so only for his virtues and qualities put into the commission. This man I hold unfit to be a justice, though I think him to be a good member in the commonwealth. Because I hold this for a ground infallible—that no poor man ought to be in authority. My reason is this: he will so bribe you and extort you that the sweet scent of riches and gain taketh away and confoundeth the true taste of justice and equity." [Footnote: Townshend, Proceedings, 953, 954] But burdensome as the duties of a justice must have been, and almost unpaid as they were, the office does not seem to have been avoided as was that of sheriff. Probably such service was taken as a matter of course by the gentry, and compensation was found in the stamp of social position it placed upon them, and in the sense of power, as well as of a patriotic fulfilment of duty. It was sometimes a matter of complaint that "with us these magistrates have been so unsuitably appointed that a county justice is made a jest in comedies, and his character the subject of buffoonery and laughter." [Footnote: Carey, English Liberties, 275] This is an obvious reference to Justice Shallow and other worthies of the dramatists. It is dangerous to make too serious an inference from contemporary comedies, because certain personages soon became stock characters and ceased to have any very close relation to actual life, and in this particular instance Shakespeare was probably gratifying an old grudge.

Nevertheless, there was evidently some foundation for this picture of the county justice. Dorothy Osborne, in one of her delightful letters to Sir William Temple, in giving her requirements for a husband, pokes fun at such ambitions. "He must not be so much of a country gentleman as to understand nothing but hawks and dogs, and be fonder of either than his wife; nor of the next sort of them whose aim reaches no further than to be Justice of the Peace, and once in his life High Sheriff, who reads no book but statutes, and studies nothing but how to make a speech interlarded with Latin that may amaze his disagreeing poor neighbours, and fright them rather than persuade them into quietness." [Footnote: Letters of Dorothy Osborne to Sir William Temple, letter 36 (ed. by Parry), p 171] With all these criticisms, and in the face of occasional ineptitude, the body of justices of the peace included much ability. It was scarcely possible for a justice to act without some knowledge of Latin, as almost all the records and documents which he would have to make, read, or sign were in that language. A succession of text-books on the duties of the office, the more important of them appearing in many successive editions, proves an intelligent interest and demand for instruction in their duties. Moreover, the men who served as justices were often well known in other ways, many of them as sheriffs, as members of Parliament, and in still other capacities. They were of families who provided the active men of enterprise of the period. The list of Devonshire justices in 1592 includes Sir Francis Drake, Sir Ferdinando Gorges, Gilberts, Carews, Seymours, Courtenays, and other names prominent among the men who laid the foundations of the maritime greatness of England and of the existence of America. Of the fifty-five, twenty-eight were at one time or another high-sheriffs of the county, twenty more were then, or became afterwards, knights, six sat in the House of Commons, and three in the House of Lords. [Footnote: Hamilton, Devonshire Quarter- Sessions, 3, 330-348.]

The justices of the peace were fair representatives of that great class of rural gentry which exercised so strong an influence over the destinies of England in the sixteenth, seventeenth, and eighteenth centuries. From this class were drawn all the county officials who have been named, except the lord-lieutenant; from it were chosen the county representatives to Parliament; and in it were found the strength and the weakness of the English political system. James I., in appealing to the country gentry to continue to live on their estates in their counties, said to them, "Gentlemen, at London you are like ships in a sea, which shew like nothing, but in your country villages you are like ships in a river, which look like great things." [Footnote: Bacon, Apothegms, in Works (Spedding and Heath ed), VII., 125.]

Out of this body of rural gentry from twenty to sixty in each county were chosen by the lord-chancellor to serve as justices of the peace. [Footnote: Lambard, Eirenarcha, book I., chap. v.] The "commission of the peace," by which the justices were appointed and from which they drew their powers, was a formula well known and constantly quoted and commented upon, and added to from time to time until late in the sixteenth century. In was then, in 1590, revised and formulated anew by Sir Christopher May, Chief-Justice, with the advice of all the other judges of the time, and has not been changed from that day to this. [Footnote: Ibid., book II., chap. vii.]

The justices of the peace performed some of their duties separately, acting individually as circumstances required, or as proved convenient to themselves. Other powers they could exercise only when two or more acted together and concurrently. Still others, and those far the most important and dignified, they performed in a body at their "quarter- sessions." What things a justice might do singly, what two, three, or four justices might do together, and what they might do only in the formal sessions of the whole body of justices of the peace of the county were defined partly in the statutes, partly in the commission under which they acted.

The regular or quarter-sessions were meetings held four times a year— in October, midwinter, spring, and midsummer—at which all the justices of the peace of the county were supposed to be present. There were, besides, occasional irregular sessions, or meetings of the regular sessions adjourned from one time to another. In corporate towns the city officers acted as justices of the peace, reinforced usually by some others especially appointed; and each town followed its own customs as to meeting in general sessions.

Although the law contemplated the attendance of all the justices of the county at each quarter-sessions, as a matter of fact the attendance was very irregular and incomplete, few of the records, so far as published, showing an attendance of as many as a dozen out of perhaps forty or fifty. Most of them evidently came riding up to quarter-sessions if it suited their convenience and remained away if it did not, restricting their services to those duties which could be performed in their own neighborhoods, and leaving to a few active, regular, and hardworking magistrates the responsibilities of the higher work. [Footnote: West Riding Sessions Rolls; Manchester Quarter-Sessions, passim.]

Of those who made up quarter-sessions one at least must be "of the quorum." This expression is taken from the commission of the justices of the peace, which in the clause giving to the justices the power to inquire and determine by oath of the jurors as to felonies and other offences and to punish them, after naming all those to whom the commission for that county is issued, says, quorum aliquem vestrum, A, B, C, etc., unum esse volumus (of whom we wish you, A, B, C, etc., to be one), naming presumably such as were learned in the law or otherwise especially trustworthy. [Footnote: Lambarde, Eirenarcha, book I., chap. ix.] As without the presence of one of the "quorum" no quarter-sessions could be held, to be a "justice of the peace and of the quorum" was to be one of a select list of the justices. One-third or one-half of the list of those in the commission were usually named also in the quorum. In addition to the justices there should, according to law, be present at quarter-sessions, in the first place, the custos rotulorum, or keeper of the rolls of the sessions, the "custalorum" of Justice Shallow. [Footnote: Merry Wives of Windsor, act i., sc. i.] This was always one of the justices of high rank indicated to the lord- chancellor for appointment by the king himself, [Footnote: 37 Henry VIII., chap i.] and was very apt to be the lord-lieutenant of the county. He could be, and probably was, usually represented at the sessions by a deputy, who was a person of considerable importance and influence, upon whom much responsibility was placed by the statutes, and whose abilities must have been constantly relied upon by the magistrates. The title of this deputy was "clerk of the peace," the predecessor apparently of the American county clerk. He was usually familiar with the law, and his knowledge of precedents and procedure must often have stood the unlearned justices in good stead, besides the work which he performed in drawing up indictments, writing orders, and keeping records.

Besides the custos and the clerk, the sheriff or his deputy were bound to be present prepared to empanel jurors and execute process; as well as the jailer ready to produce his prisoners; the superintendent of the county house of correction; all jurors who had been summoned by the sheriff; all persons who had been bound over by single justices to appear at quarter-sessions; all high constables and bailiffs of hundreds; and the coroners. [Footnote: Dalton, Officium Vicecomitum, chaps, xxxiv., clxxxv.] The quarter-sessions should, by law, be kept for three continuous days if there was any need; [Footnote: 12 Richard II, chap. x.] but, as a matter of fact, sessions seldom lasted more than a day, and a contemporary complains that "many doe scantly afford them three whole hours, besides the time which is spent in calling of the county and giving of the charge." [Footnote: Lambarde, Eirenarcha, book IV., chap. xix.]

The powers and duties of the justices of the peace in quarter-sessions and separately were so considerable and varied as to tax the ability of an Elizabethan or Jacobean text-book writer to reduce them to simplicity of statement, or to the compass of five or six hundred pages of enumeration. Many of these powers were general, arising from the nature of the office for the "conservation of the peace"; but the great mass of their duties was placed upon them by statutes. Ten early statutes are enumerated in the commission itself, before coming to the inclusive "and cause to be kept all other ordinances and statutes made for the good of our peace and the quiet rule and government of our people." From the middle of the fifteenth century forward, the enforcement of the greater number of new laws was placed primarily in the hands of the justices of the peace.

As time passed on legislation became more and more minute and inclusive. Few interests in human life escaped the paternal attention of government under the Tudors and Stuarts, and this great mass of enactment it became the duty of the groups of country gentry in the counties and of the civic magistrates of the towns to put into force. A writer of the time enumerates two hundred and ninety-three statutes passed previous to 1603 in which justices of the peace are mentioned and given some jurisdiction or duties. [Footnote: Lambarde, Eirenarcha, book IV., chap, xix., Table, App.] Under Elizabeth alone there were seventy-eight, ranging from the "preservation of spawn and frie of fish" to those "touching bulls from Rome." The infrequent and short- lived parliaments of James I. added thirty-six to the list. [Footnote: Dalton, The Country Justice, Table of Contents.]

Although many of these laws are repetitions, some others temporary or local, still others insignificant, yet, on the other hand, some of them opened up whole new fields of activity to the justices: as, for instance, those placing upon them, after 1563, the administration of the Act of Apprentice; and, after 1581, the responsibility for the search for and punishment of popish recusants. A whole code of law, procedure, and precedent grew up on these two subjects, besides others scarcely less extensive.

Quarter-sessions had nothing to do with civil suits, and cases of treason, murder, and certain other high crimes were excluded from their competence. Apart from this restriction and these offences, there was little difference between sessions and assizes, between the jurisdiction of the learned judges of the king in their half-yearly circuit and that of the county magistrates in their quarter-sessions. Before them both grand and petty juries were empanelled, indictments drawn up, prisoners tried for assault, burglary, horse-stealing, witchcraft, pocket-picking, keeping up nuisances, cheating, failure to attend church, and almost all other offences of which seventeenth- century Englishmen were capable. If convicted they were placed in the stocks, whipped, or hanged. In Devonshire, in the midwinter sessions of 1598, out of sixty-five culprits who were tried eight were hanged; at midsummer, out of forty-five eight were hanged, thirteen flogged, seven acquitted, and seven, on account of their claim of benefit of clergy, were branded and then released. [Footnote: Hamilton, Devonshire Quarter-Sessions, 33.]

The justices in sessions or singly also performed much administrative work, such as the oversight and repair of bridges, the granting of licenses to ale-houses, the establishment of wages, the binding out of apprentices, and the relief of wounded soldiers. Many laws passed under Elizabeth and James I. admitted of exceptions when approved by one or more justices of the peace, and there was thus constant occasion for granting to individual persons or at special times permission to export grain, to turn their barley into malt, to build cottages without land attached, to carry hand-guns, to buy and sell out of market-hours, to beg, and other dispensations from the rigorous application of the law. [Footnote: Ibid., 27, 164, etc.]

The punishing of recusants and the discipline of those who refused or neglected to go to church was, as already stated, an active occupation of the justices.

At certain times, such as the period just following the Gunpowder Plot, when the search was for Catholics, and somewhat later, when the search was for Puritans and Separatists, the Privy Council brought severe pressure upon the justices to fulfill these duties, and numerous prosecutions were brought by them. In Middlesex during the reign of James I. the indictments averaged eighty-five per year for religious offences, and sometimes at one session there were as many as one hundred and fifty persons indicted. [Footnote: Middlesex County Sessions Rolls, II., III.; Hamilton, Devonshire Quarter-Sessions, 27, 74, etc.; Cal. of State Pap., Dom., 1633-1634, p. 531.]

The justices were constantly called upon to act in special emergencies or to give special relief. If a man's thatched cottage were burned, the nearest justice might authorize him to make an appeal to his neighbors for help to rebuild; if a whole village or town suffered from a more extensive fire, the justices in their sessions quartered the homeless people in various parishes, announced a subscription, and, calling constables and leading villagers before them, exhorted them to liberal voluntary gifts, and appointed a subcommittee to administer the funds for relief; if a pestilence appeared, a tax-rate for immediate assistance was levied, and the justices supported the sick and enforced the quarantine; if food became scarce and high-priced the justices forbade its export from the county or conversion into malt, and even announced a maximum market-price for it. When weavers or other artificers were out of work the justices set to work to induce masters to employ them or merchants to buy their goods, or, as a last resort, levied a rate for their support. If news came of the capture of a number of English sailors or merchants by Barbary pirates, collections were taken up by the justices of the maritime counties for their redemption. In all such exigencies it was the justices of the peace who were expected to tide over the special temporary difficulty or need.

Besides the ancient regulative duties of the justices, and besides those that were definitely given them by successive statutes, they were constantly subject to the commands and instructions of the Privy Council. In 1592, soon after the remodelling of the commission, a circular letter was sent by the Privy Council to certain commissioners in each county requiring them to call a special meeting of all justices of the peace, at which the oath of office and the oath of supremacy must be taken by each, or they must retire from the commission of the peace. [Footnote: Hamilton, Devonshire Quarter-Sessions, 36, 48; Nichols, Hist. of the Poor Law, 252; Hist. MSS. Commission, Report XIV., App. IV., 42.] This seems to have been preparatory to a more strict discipline and oversight of their actions, for communications from the council now became more frequent and more drastic. In requiring them to fulfil their duties as magistrates the Privy Council spoke categorically in the name of the king in a constant series of letters, couched often in such harsh terms of reproof as to make it hard to realize that the justices were gentlemen of rank and dignity, fulfilling laborious services practically without compensation. In 1598 vigorous letters were sent to the various counties calling the attention of the justices to the recently enacted poor law, and requiring them to see it put into execution. [Footnote: Leonard, "the Poor Law," 143.] From this time forward to the outbreak of the civil war the pressure of the council on the justices became stronger and stronger. In January, 1631, a "Book of Orders" was issued by the Privy Council giving instructions in greater detail to the justices as to their duties, especially in regard to the poor law, and requiring them to make reports every three months to the sheriffs, who were to transmit these reports to the justices of assize, who were in turn to send them to certain members of the Privy Council deputed for the purpose. The judges of assize were also to report directly to the king if they learned of the negligence of any of the justices of the peace. [Footnote: Ibid., 158, etc.] "The Book of Orders" was reissued from time to time and its requirements followed up.

An attempt was made by these means to introduce a system of "thorough" in the affairs of local government during the period of the personal government of Charles I., analogous to that attempted in the higher ranges of government by Wentworth, Laud, and their fellow-members of the Privy Council. The great instruments of this plan were the justices of the peace, acting within the limits of their respective counties, carrying out the manifold duties imposed upon them by law, under constant pressure from the Privy Council and the king. After even this partial enumeration of the services of the justices of the peace and of the supervision kept over them, one can readily appreciate the feeling of the justices of Nottingham who complained that they had "little rest at home or abroad." [Footnote: "Cal. of State Pap, Dom," 1631-1633, p. 18.]

The centre of gravity of local government in England was in the county. The power which put its machinery in motion was that of the central government; but the actual administration was in the hands of the sheriff, the lord-lieutenant, the coroner, and the justices of the peace. The county bounded the sphere of activity of all these officials. The commission of any group of justices named the county in which they were to exercise their functions, and outside of its boundaries all their powers dropped from them. The coroner could not hold an inquest outside of his own county, and even the lord-lieutenant could exercise his military functions only within the shire or shires named in his commission. When, in 1603, James I. rode southward from Edinburgh on the news of the death of Elizabeth, and crossed the border at Berwick, he was met by the sheriff of Northumberland and escorted by him to the borders of Durham, where he was met by the sheriff of that county, and so from shire to shire through the whole length of England till he reached London.

The basis of representation in Parliament was the county: the counties formed the districts for all the circuit courts; national taxation was largely distributed by counties, and, as has been seen, local jurisdiction and administration were largely in the hands of county officials.



CHAPTER XVI

ENGLISH PARISH OR TOWNSHIP GOVERNMENT (1500-1650)

Next below the county as a political subdivision of England came the hundred, or wapentake, as it was called in the northern shires. One of the oldest political units of the country, perhaps the very oldest, it had become the least important of all. Its ancient significance as the primary organization of the community for judicial purposes disappeared long before the beginning of the seventeenth century, leaving only a desultory practice of holding a sheriff's semi-annual "tourn" through the hundreds of the shire; and some traditional payments of fees to the noblemen who held the hundred court as a "liberty," or to the crown. Apart from its existence as a unit of jurisdiction, the hundred was still put to some use as a subdivision of the county for purposes of taxation, for military organization and service, for the preservation of order, and as the sphere of activity of the high-constable. [Footnote: Lambarde, Constables, S 25; Cal. of State Pap., Dom., 1637, pp. 39, 104.] The high-constables were, indeed, the only officers of the hundreds, one or more being chosen annually by the justices of the peace in quarter-sessions from the same class of rural gentry as we have already seen furnishing the county local officials. The hundred, for some reason, took but slight root in colonial soil, though it was established in a few of the colonies, and in such places many of its English functions reappeared. [Footnote: Howard, Local Constitutional History of the U. 5., 272-286; Wilhelmi, Local Institutions of Maryland, 60, n. 5.] An ancient Latin law writer says, "England is divided into counties, counties are divided into hundreds (which in some parts of England are called wapentakes), and hundreds are again subdivided into villas." [Footnote: Fortescue, De Laudibus Legum Angliae, chap. cxxiv.] By using the general word villas ("vills") he evaded one of the greatest difficulties in the description of English local government in the sixteenth and seventeenth centuries, the confusing and conflicting use of terms for the smallest subdivision of civil government. Shall we use parish, town, township, manor, or tithing when we speak of a neighborhood organized for the affairs of petty government? All these terms are used abundantly in the records of the time and to a great extent are used indiscriminately.

This lack of consistency is quite natural and explicable. In the first place, local organization as it existed at this time was the residuum of several successive systems of custom and law, and contained survivals from the nomenclature of each. "Township" or "town" was a term belonging to a far-distant Anglo-Saxon past, and had been long obscured by the later institution of tithings and the still later manors. Secondly, the union of church and state, the mutual interpenetration of the ecclesiastical and civil systems, served to complicate the matter still further by confusing the word "parish" with terms which applied in a non-ecclesiastical sense to the same little group of people and the same tract of land.

Of all these terms, three—manor, town (or township), and parish—are the most usual. A manor was a group of inhabitants and the land they occupied (usually a single village), so far as these people were connected with and dependent upon a certain "lord of the manor," who had various rights over the people and their lands. Aside from his position as landlord, the most important of these rights was that of holding a court-baron and a court-leet and view of frank-pledge.

Various powers and activities had long gathered around these petty courts, but the whole group of manorial rights and duties of jurisdiction and administration was, in 1600, fast becoming an obsolete and insignificant institution. Yet the terms connected with it had worked themselves inseparably into local life. Courts-baron were held in but few places, and almost solely for the purpose of making land transfers; courts-leet were held only infrequently and irregularly, many lords of manors who possessed the right exercising it but once a year or less frequently; the whole system of frank-pledges had long gone into desuetude. Grants of manorial powers, "court-leet, court- baron, and view of frank-pledge," were made in several of the colonial charters; but these institutions showed little inclination to renew in America a vitality they had lost in England.

The English word town or township is the nearest equivalent to the Latin word villa or vill, which is a generic term used in the records, without very exact connotation, for one of those country villages in which the rural population of England was distributed, including the land connected with the village. Town and township meant the same thing, except when the former was applied to an urban community. Over and over again to the same locality first the term "town" and then "township" is applied; [Footnote: West Riding Sessions Rolls, passim.] and a careful search fails to find any distinction drawn between them. In the north of England the term town or township seems to have been especially familiar and frequently used as a subdivision of some of the other local units; [Footnote: Fishwick, Hist of Preston, 2.] and it was in common use everywhere as a synonym for manor or parish.

While all these terms meet us frequently in the records of the seventeenth century, the term parish, notwithstanding its ecclesiastical connotation, was, in fact, superseding all others as the most usual appellation to give to the unit of local government. Terms strictly applicable to other phases of the local organization were apt to be applied to the parish. For instance, we hear of the "constable of a parish," [Footnote: Archaeological Review, IV, 344.] although that officer was an official of a township; proprietors of "free" and "copy- hold" lands of a parish are spoken of, though those terms properly applied only to a manor; the same is true of an order for a court to be held every three weeks in certain parishes, [Footnote: Saalkeld, Reports, III., 98.] the term "court" being properly manorial. These expressions show the tendency of the time to substitute the term "parish" for more exact terms applied to the local governing body in its different aspects. It was the "parish" that was usually sued, taxed, and fined, that received property by bequest, and that was ordered by the government to perform various duties.

Our colonial forefathers, according to the locality of their origin or the particular phase of local government that applied to their new conditions, used sometimes one term, sometimes another; but in this study of English conditions the parish and the officers whose sphere of action was the parish may be taken to include all that is necessary, with the understanding that our use of the term parish is broad, in conformity with seventeenth-century usage.

The knowledge of the boundaries of the parish was kept alive by the traditional ceremony of perambulation. From time to time, usually once a year, a procession was formed which went the rounds of the outer boundary, stopping from time to time at well-marked points for various commemorative ceremonies. In pre-Reformation times the ceremony was a religious one, the priest leading and the parishioners following with cross, banners, bells, lights, and sacred emblems, successive points being blessed and sprinkled with holy water. [Footnote: Burn, Ecclesiastical Law, II, 133,134.] When religious processions were forbidden at the Reformation, this ceremony came under the condemnation of the law; and Queen Elizabeth found it necessary, in order to perpetuate the useful civil element in it, to direct by proclamation a certain form of renewal of the processions. "The people should, once in the year, at the time appointed, with the curate and substantial men of the parish, walk about the parish, and at their return to the church make their common prayers. And the curate in the said perambulation was, at certain convenient places, to admonish the people to give thanks to God in the beholding of His benefits, and for the increase and abundance of his fruits upon the face of the earth, with the saying of the one hundred and third Psalm." [Footnote: Gibson, Codex, 213.]

The custom survived in this or other forms, [Footnote: Shillingfleet, Ecclesiastical Cases, I., 244.] because there were no surveyed boundaries, and reliance had to be placed on marked stones and trees, hill-tops, watercourses, and such indications, interpreted and defined only by human tradition. In some remote districts it is still preserved. From the practice of performing the perambulation in rogation week it was often called "the rogation," and conversely rogation days were sometimes called "gang-days" [Footnote: Burn, Ecclesiastical Law, II., 133.] In the seventeenth century, as the men who afterwards practised it in New England and Virginia must have remembered, it was still a festivity. In the church-wardens' accounts for the parish of St. Clements, Ipswich, in 1638, is the item "ffor bread and beare given to the boyes when they wente the boundes of the parishe, 12s." [Footnote: East Anglian, IV., 2d series, 5.] Boys were taken as those whose life and memory would naturally be the longest, and the poorer boys were often especially included as a treat. In Chelsea, Middlesex, at a somewhat later time, a more official feast is suggested by the entry: "Spent at the perambulation dinner, 3 pounds 10s." [Footnote: Toulmin Smith, The Parish, 473.]

No material obstacle was allowed to interfere with the progress of the perambulators. They could, by law, enter all dwellings on the boundary and pass through and even break down all enclosures which lay across it. Private persons whose houses lay in the line of march of the perambulators sometimes provided food and drink for them, and this became so customary that efforts were made, though unsuccessfully, to enforce this custom by law. [Footnote: Burn, Ecclesiastical Law, II., 133.]

In describing the officers of the parish we pass from the class of country gentry, from which the sheriffs, coroners, justices of the peace, and high-constables were drawn, to a group of lower social rank. In the towns they may have been of somewhat higher or at least more varied status, but in the rural parishes the officers were of very humble position. In the invaluable description of England written by Harrison in the latter part of the reign of Elizabeth, from which we have had occasion to quote so frequently, the author says: "The fourth and last sort of people in England are day-labourers, poor husbandmen, and some retailers (which have no free land), copyholders, and all artificers, as tailors, shoemakers, carpenters, brickmakers, masons, etc. ... This fourth and last sort of people therefore have neither voice nor authority in the commonwealth, but are to be ruled and not to rule others: yet they are not altogether neglected, for ... in villages they are commonly made churchwardens, sidesmen, aleconners, now and then constables, and many times enjoy the name of head boroughs." [Footnote: Harrison, Description of England (Camelot ed.), 13.]

The most active and conspicuous officer of the parish or township was the constable, or petty constable, as he is often called, to distinguish him from the high-constable of the hundred. He was appointed by the court-leet, where this was still held; in other cases by the steward of the lord of the manor, the vestry of the parish, or, as a part of their residuary duties, by the justices of the peace. The regular form of oath of the constable may be quoted in some fulness to show the nature of his duties. "You shall swear that you shall well and truly serve our sovereign lord, the king, in the office of a constable. You shall see and cause his majesty's peace to be well and duly kept and preserved, according to your power. You shall arrest all such persons as in your sight and presence shall ride or go armed offensively, or shall commit or make any riot, affray, or other breach of his majesty's peace. You shall do your best endeavor to apprehend all felons, barrators, and rioters, or persons riotously assembled; and if any such offenders shall make resistance you shall levy hue and cry and shall pursue them until they be taken. You shall do your best endeavors that the watch in and about your town be duly kept for the apprehending of rogues, vagabonds, nightwalkers, eavesdroppers, and other suspected persons, and of such as go armed and the like. ... You shall well and duly execute all precepts and warrants to you directed from the justices of the peace of the county or higher officers. In time of hay or corn harvest you shall cause all meet persons to serve by the day for the mowing, reaping, and getting in of corn or hay. You shall, in Easter week, cause your parishioners to chuse surveyors for the mending of the highways in your parish. ... And you shall well and duly, according to your knowledge, power, and ability, do and execute all things belonging to the office of a constable so long as you shall continue in this office. So help you God." [Footnote: Dalton, The Country Justice, chap. clxxiv.]

The constable, among the other duties prescribed by his oath, had to "raise the hue and cry" when it was demanded—that is to say, if any one were assaulted or robbed and appealed to the constable of the parish in which the injury occurred, the constable must summon out his neighbors, whether it were by day or by night, to seek the culprit. If not successful he must give notice to the constables of the adjacent parishes, who were similarly to raise the hue and cry in their neighborhoods. If the offender was not then discovered the person who suffered the loss might bring suit for its recovery from the whole hundred in which the attack occurred. [Footnote: Ibid., chap. lxxxiv,]

In practice hue and cry was a very ineffective method of capturing ill- doers. Harrison says: "I have known by my own experience felons being taken to have escaped out of the stocks, being rescued by others for want of watch and guard, that thieves have been let pass, because the covetous and greedy parishioners would neither take the pains nor be at the charge to carry them to prison, if it were far off; that when hue and cry have been made even to the faces of some constables, they have said: 'God restore your loss! I have other business at this time.'" [Footnote: Harrison, Description of England (Camelot ed.), 247.] To prosecute petty offenders, to force laborers to serve during harvest- time, to sign their testimonials when they wished to leave the parish, and to see that innkeepers refused no travellers, gave the constable considerable duties of local supervision.

The constable must, with the advice of the minister and of one other inhabitant of the parish, whip any rogue, vagabond, or sturdy beggar who appeared in the parish, and then send him, with a testimonial to the fact of the whipping, back to his native parish. The word rogue was a comprehensive term as used in the laws of Elizabeth, including wandering sailors, fortune-tellers, collectors of money for charities, fencers, bearwards, minstrels, common players of interludes, jugglers, tinkers, peddlers, and many others, and adequate whipping of them and starting them in the direct route homeward must have been no sinecure. [Footnote: Lambarde, Duties of Constables, S 45.]

A contemporary testimonial with which such a person was provided may not be without interest as an illustration of the manners of the time. "A. B., a sturdy rogue of tall stature, red-haired and bearded, about the age of thirty years, and having a wart neere under his right eie, born (as he confesseth) at East Tilberie, in Essex, was taken begging at Shorne in this county of Kent, the tenth of March, 1598, and was then and there lawfully whipped therefor, and hee is appointed to goe to East Tilberie aforesaid, the direct way by Gravesend, over the river of Thamise; for which hee is allowed one whole day, and no more at his peril; subscribed and sealed the day and yeare aforesaid. By us" (signed by the minister, the constable, and a parishioner). [Footnote: Lambarde, Duties of Constables, S 45.] It is no wonder that constables are advised "in every corner to have a readie hand and whip."

The constable was also the warden of such arms and armor as each parish kept, or was supposed to keep, in obedience to the militia requirements. A writer of Elizabeth's time says: "The said armour and munition likewise is kept in one several place of every town, appointed by the consent of the whole parish, where it is always ready to be had and worn within an hour's warning. ... Certes there is almost no village so poor ... that hath not sufficient furniture in a readiness to set forth three or four soldiers, as one archer, one gunner, one pike, and a billman." [Footnote: Harrison, Description of England (Camelot ed.), 224.]

An account of the armor kept in a parish in Middlesex is entered in the vestry accounts of the year 1583. "Note of the armour for the parish of Fulham: first, a corslet, with a pyke, sworde, and daiger, furnished in all points, a gyrdle only excepted. Item, two hargobushes, with flaskes and touch-boxes to the same; two morryons; two swords, and two daigers, which are all for Fulham side only. All which armore are, and do remayne in the possession and appointment of John Palton, of Northend, being constable of Fulhamsyde the yere above wrytten." [Footnote: Toulmin Smith, The Parish, 473.] One may easily imagine the nature and value of such accoutrements, and of the villagers who were occasionally pressed into the service to wear them. Mouldy and Bullcalf, Wart, Shadow, and Feeble, and Falstaff's whole company of "cankers of a calm world and a long peace" may readily enough have been drawn from the life.

These duties the constable must fulfil at his own initiation or upon the recurrence of the occasion for them. But the great part of his duties were those imposed upon him from above in special cases—that is to say, in carrying out the warrants and precepts of the justices of the peace, or occasionally of the coroner, sheriff, lord-lieutenant, or still higher officials. If the justice of the peace was the man-of-all- work, as has been said, of the government of the time, the constable was the tool and instrument with which he worked. The constable was required to arrest all persons who were to be bound over by the justices to keep the peace, and all felons and other ill-doers for whom a warrant had been issued, and to bring them before the justices into jail. And woe be to him if he allowed such a prisoner to escape. The justices might construe his inactivity as participation in the crime of the prisoner, or he might be fined to the extent of all his property. [Footnote: Lambarde, Duties of Constables, S 15]

The constable must carry out the lesser sentences of the justices, inflicting the punishment ordered and collecting the fines imposed. For instance, when a certain poor woman, Elizabeth Armistead, was convicted of petty larceny at the West Riding Sessions, in 1598, it was ordered by the justices that "she shall nowe be delivered to the constable of Keerbie, and he to cause her to be stripped naked from the middle upward and soundly whipped thorowe the said town of Keerbie, and by hym delivered to the constable of Kirkby and he to see like execution within his town, and the next markett att Weatherbie to delyver her to the constables of Weatherbie, and they to see like punishment of her executed thorow their towns." [Footnote: West Riding Sessions Rolls, 58] In assessing and collecting taxes and in obtaining information the constables were at the command of county and hundred authorities. They were used as the active or at least the most available intermediaries between the justices of the peace and the individuals whom it was desirable to reach. [Footnote: Hist. MSS. Commission, Report XIV., App, pt. iv, 28, 67.] They were by no means ideal instruments; many were extremely ignorant—as, for instance, the constable of Collingbourne Ducis, who in 1650 prays to be relieved from his office because he can neither read nor write, and is obliged to go to the minister and divers others to get his warrants read. [Footnote: Hist. MSS. Commission, Report I., 121] They were constantly being fined by the justices for neglect of their duties or for inefficiency. [Footnote: Middlesex County Records, II., 36, 41, 139.]

The most important remaining ancient parochial officers were the church-wardens. Their position and functions were not so purely ecclesiastical as the name would suggest. Their duties included, it is true, the care of the parish church and the provision of other material requirements for religious services. But they also included many things which were quite clearly temporal or civil in their nature. Coke says of their position, "The office is mere temporal." [Footnote: Lambarde, Duties of Constables, SS 57-60.] That is to say, the church-wardens represented the parishioners, not the minister or the ecclesiastical authorities. They formed a quasi-corporation for the holding of the personal property that belonged to the parish, and could sue and be sued as trustees for the parish. [Footnote: Lambarde, Duties of Church- wardens, S 1.]

The almost invariable custom was for the body of the parishioners at a vestry meeting in Easter week to choose two church-wardens for the next year. But neither the number nor the mode of appointment was at this time quite fixed. During the first half of the seventeenth century clergymen were inclined to magnify their office, and the canons of 1603 and 1639 gave to the minister of the parish some control over the choice of the wardens; although whenever the rights of the parishioners were asserted and an established custom shown, the courts upheld this custom against ecclesiastical encroachments. [Footnote: Toulmin Smith, The Parish, 78-87.]

The financial powers of the church-wardens were considerable, though exercised in most cases along with the constable, and in many only after the approval of the whole body of parishioners at a vestry meeting. They had, of course, the duty of providing for the repairs of the church and of taxing their neighbors for this purpose. Unless previously settled upon by the parishioners themselves, they levied and collected the local taxes already described as being imposed by the justices upon the parishes for various purposes. They had the power to seize and sell the property of such parishioners as refused or neglected to pay the amounts assessed upon them. Many of the parishes also received considerable sums by gift or bequest, which were invested, and the income expended for the poor or other parish objects. [Footnote: Ibid., chap, v., App.]

Property in land and houses also belonged to some parishes, apart from the minister's glebe, and the renting and accounts fell within the church-warden's duties. Various means of combining the securing of funds with much neighborhood merriment, even in those days of militant Puritanism, were used by the parish authorities, such as "church-ales," "pigeon-holes," Hock-tide games, Easter games, processions, and festive gatherings, at all of which farthings, pence, and shillings were gathered. [Footnote: Various quotations in Toulmin Smith, The Parish, chap, vii., S 12.] Such accounts of these various funds and the record of the thousand and one petty expenditures for local purposes as were kept were usually the work of the church-wardens and made their office one of real local importance. In fact, a whole cycle of parish life passes before us in these accounts. "Paid the carpenters 5s. for a barrow to carry the people that died of the sickness to church to bury them." "For a coat for the whipper, and making, 3s." "For too payre of glovys for Robin Hode and Mayde Maryan, 3d." "Received for the May- pole, 1 pound 4s." "Paid Robert Warden, the constable, which he disbursed for carrying away the witches, 11s." [Footnote: Ibid., 465- 472.]

The church-wardens, under a law of Queen Mary, [Footnote: 2 and 3 Philip and Mary, chap. viii.] with the constables and parishioners, selected the surveyors of highways; and under two statutes of Queen Elizabeth [Footnote: 8 Eliz., chap, xv., and 14 Eliz., chap. xi.] every year appointed two men who should be named "the distributers of the provision for the destruction of noisome fowle and vermine." A tax was levied upon the parishioners to provide these officers with funds, and it then became their duty to pay bounties for the heads and eggs of crows, rooks, starlings, and many other birds. A long list of four- footed beasts is also included in the definition of "vermine," and rates ranging from a shilling for a fox to a halfpenny for a mole were established. [Footnote: Lambarde, Office of Distributers, etc., 92.] The mole-catcher was a regular employe of some parishes. [Footnote: Hist. MSS. Commission, Report III., App., 331; V., App., 597.]

Finally, the church-wardens were ex-officio overseers of the poor. By the great poor law of 1597 the church-wardens, along with four overseers of the poor appointed each year at Easter by the justices, had the whole charge of the relief of the poor. [Footnote: 8 Leonard, The Poor Law, 76, etc.]

They were to estimate the annual costs and to tax their fellow-townsmen for this purpose. From this time forward taxation for the poor under the control of parish officers became the most important, as it was the heaviest, of local charges. The constant efforts of the Privy Council, through the justices of the peace, to enforce the poor law, kept church-wardens and other overseers of the poor up to their duties and engaged them in constant conferences with the justices and in making reports, as well as in the actual work of poor relief.

A vestry clerk existed in some parishes, and later such an office became quite general and influential, but at this period the records were generally preserved by one of the church-wardens or by the minister. The vestry-clerk is of special interest as being apparently the prototype of the town-clerk in the American colonies. [Footnote: Howard, Local Constitutional History of the U. S., 39.]

Various other petty officers existed, but their duties were either identical with those already described, or insignificant, or so exceptional as not to reward inquiry and description here. Such were the beadle, sexton, haywards, ale-conners, waymen, way-wardens, sidesmen, synodsmen, swornmen, questmen, and perhaps some others. [Footnote: Discussed in Charming, Town and County Government in the English Colonies (Johns Hopkins University Studies, II.), No. 10, p. 18, etc.]

Such being the officers whose sphere of activity was the parish, it remains to describe the general assembly of the people of the parish, the vestry. This name arose apparently from the practice of meeting in the part of the church in which the vestments were kept. Ordinarily, all who held house or land in a parish, no matter on what tenure, were members of the vestry of the parish. All inhabitants, therefore—land- owners, free tenants, copy-holders, laborers occupying cottages, even those who held land in the parish but lived somewhere else—were by law at liberty to attend the meetings of the parishioners and to join in the exercise of their functions.

Such a body is of great interest. [Footnote: Coke, 5 Report, 66, 67.] Those officials whose positions and functions have been discussed in the two preceding chapters drew all their powers from the crown, and the duties that they performed were imposed upon them by statute law or by royal instruction. The same is true of a considerable part of the activity of constables and church-wardens. But the vestry of the parish existed as a body which within certain limits had powers of government of its own, and could impose duties upon parish officials, appoint committees and require services from them, adopt by-laws which bound all the inhabitants, and impose taxes upon the landholders of the parish which they were bound to pay.

Yet evidences of anything like regular meetings of the parishioners are, in the sixteenth and seventeenth centuries, so scanty as to leave considerable doubt as to whether they occurred at all generally. They are not mentioned in the legal text-books of the time, which were, of course, written by men who looked from above downward and were not interested in local institutions as such. A few accounts of such vestry meetings remain, [Footnote: E.g., those of Steeple Ashton, quoted in Toulmin Smith, The Parish, chap, vii, SS 12.] but the action taken at them was apparently restricted to the choice of parish officers, the adoption of by-laws for the carrying out of necessary taxation and other distribution of burdens, and for matters connected with the building or repair of the church. The attendance probably consisted only of the more substantial members of the parish and of those who held office and must present reports. The parish life resided more in the activity of its officials than of its assembly. Vigorous local self-government could not have existed without leaving more distinct traces than it has done, and our study of the political system of the time will have made it clear that much local independence was not suited to the period of the Tudors and Stuarts. [Footnote: See Toulmin Smith, The Parish, chaps, ii., iv., vii.; and Gneist, Self-Government, book III., chap, ix., S 115.] Such was the provision for the carrying out of those matters of local concern in the county, the hundred, and rural parish which were not performed by immediate officials or commissioners of the central government. It is evident that in the early seventeenth century the motive power for almost all government, local as well as general, emanated from the national government—from the king, Privy Council, and Parliament. It was a vigorous, assertive, centralized administration, eager to carry out its will and enforce order, uniformity, and its own ideas upon all persons and bodies in England. No shade of doubt of their own wisdom or reluctance to override local or individual liberty of action troubled the thought or weakened the resolution of the Tudor and Stuart sovereigns and their ministers. Nor were their Parliaments antagonistic to the principle of centralized government, even when they wished to curb unrestrained royal control of it. Strong government was in entire consonance with the spirit of the time.

Yet this ambitious central government was working with very inadequate and unsuitable instruments. Instead of a body of efficient and responsible officials, directly and immediately dependent upon their superiors, receiving wages and hoping for promotion, such as successful centralized governments have usually possessed, the king and council made use of the old and cumbrous machinery of local self-government as they found it. It was quite unsuited to their purposes. Sheriffs, coroners, high and petty constables, church-wardens, even justices of the peace, had come down from a period when government was of quite another and more primitive character, in which the central power counted for far less, local powers for far more. Most of the local officials were unpaid, and the others were dependent on insignificant fees for such money reward as they obtained. The labors imposed upon them were performed only from a sense of duty, loyalty, or necessity, not as a fair return for remuneration received.

There was little provision for a wise selection of office-holders, so far as regarded their suitability to the objects of the central administration. The county and hundred officials were taken from one restricted class, the rural gentry; the township and parish officials were chosen by their neighbors from their own number. In a word, the government of Elizabeth, James, and Charles was trying to carry on an ambitious, centralized administration by means of an unpaid, untrained, and carelessly selected group of local officials, whose offices had been established and whose characters had been formed for a system of much more limited powers and of more independent local life.

At certain times, as in the period of personal government of Charles I., something like a hierarchy seemed about to develop itself, in which the Privy Council, speaking in the name of the king, gave instructions to the justices of assize, the justices of assize to the sheriffs and justices of the peace, the justices of the peace to the high-constable of the hundred, and the high-constable to the petty constable, church- wardens, and other township or parish officials. But no such regularity was attained; the council frequently communicated directly with the justices of the peace, the sheriff with the parish officers; and the administration became no more systematic as time went on.

The primary governmental division of the country, the shire, was the sphere of much activity; but it was not automatic, and acted wholly or almost wholly in response to pressure from above. The ultimate unit of local government, the parish, township, or manor, had many and interesting functions, but they were for the most part either declining survivals of earlier powers, or new forms of activity imposed upon it from above. It had the necessary officials and the political rights to enable it to do a great deal, but it showed few signs of vigorous life. Thus government in England in the early seventeenth century was so organized that at the top was an energetic national government, midway an active but dependent county organization, and at the bottom the parish with a residuum of ancient but unutilized powers of self- government.

No greater contrast could be noted in the position of men than that between the Englishman at home, in the early seventeenth century, and the Englishman who emigrated to America. Almost all the conditions that surrounded the former were reversed in the case of the latter. The pressure of central government was immediately and almost completely withdrawn. Many of the most urgent activities of government in England, such as the administration of the poor law and the restriction of vagabondage, almost ceased in the colonies. The class of settled rural gentry from which most local officials were drawn in England did not exist in America. On the other hand, the wilderness, the Indians, the freedom from restraint, the religious liberty, the opportunity for economic and social rise in the New World made a set of conditions which had been quite unknown in the mother-country.

As a result, the colonists had to make a choice from among the institutions with which they were familiar at home, of those which were applicable to their new needs. Of such institutions of local government in England there were, as has been seen, a considerable number and variety. Naturally, some functions which had been prominent at home were reduced to insignificance in the colonies; some which had been almost forgotten or had remained quite undeveloped in England gained unwonted importance in America. Almost every local official or body which existed in England reappeared in some part or other of the English colonies, although often with much altered powers and duties. All the familiar names are to be found, though sometimes with new meanings and always more or less considerably adapted to new conditions. Moreover, the choice was in the main restricted to familiar English institutions, for in the great variety of system in different parts of the colonies there was scarcely an official or body which did not have its prototype in England. [Footnote: Howard, Local Constitutional History of the U. S.; Channing, Town and County Government in the English Colonies; Adams, Germanic Origin of New England Towns. Cf. also Tyler, England in America; Andrews, Colonial Self-Government; Greene, Colonial Commonwealth (American Nation Series), IV., V., VI.]

In this as in other matters, the foundations of America were laid in European conditions and occurrences. European needs sent explorers on their voyages of discovery, and European ambitions equipped adventurers for their expeditions of conquest; the commercial projects of England, France, Holland, and Sweden led to the establishment of the principal New-World colonies; the economic exigencies and the political and religious struggles of Europe sent a flood of settlers to people them; the institutions of Spain, France, Holland, and England all found a lodgment in the western continent; and those of England became the basis of the great nation which has reached so distinct a primacy in America.



CHAPTER XVII

CRITICAL ESSAY ON AUTHORITIES

BIBLIOGRAPHIES

No general bibliography of the whole field of this volume exists, although two comprehensive publications (both described below) have special bibliographic sections: The Cambridge Modern History has full lists of books, less well analyzed than the systematic and useful bibliographies in Lavisse et Rambaud, Histoire Generale.

GENERAL SECONDARY WORKS

Several general histories of Europe covering the field of this volume have been published in recent years or are now appearing. The most important are: Lavisse et Rambaud, Histoire Generale (12 vols., 1893- 1901), of which vols. III. and VI. apply most nearly to the subjects included in this book; The Cambridge Modern History (to be in 12 vols., 1902-), especially vols. I.-IV.; H. H. Helmolt, History of the World, translated from the German (to be in 8 vols., 1902-), especially vols. I. and VII. Helmolt differs from all other general histories by its arrangement in accordance with ethnographical and geographical divisions rather than historical epochs; he pays also especial attention to economic phenomena. The following three volumes in the series entitled Periods of European History, give an account of this period in somewhat shorter form: Richard Lodge, The Close of the Middle Ages, 1272-1494 (1901); A. H. Johnson, Europe in the Sixteenth Century, 1494-1598 (1897); H. O. Wakeman, Europe, 1598-1715 (1904).

Two excellent histories of the period of discovery are O. F. Peschel, Geschichte des Zeitalters der Entdeckungen (1858), and Sophus Ruge, Geschichte des Zeitalters der Entdeckungen (1881). More recent works are S. Gunther, Das Zeitalter der Entdeckungen (1901), and Carlo Errera, L'Epoca delle Grandi Scoperti Geografiche (1902).

SPECIAL QUESTION ON COLUMBUS

The seemingly well-established view that Columbus when he discovered America was in search of a direct western route to the East Indies and Cathay, and that he had been led to form this plan by correspondence with the Florentine scholar Toscanelli, was attacked by Henry Vignaud, La Lettre et la Carte de Toscanelli sur la Route des Indes par L'Orient (1901), and in a translation and extension of the same work under the title Toscanelli and Columbus (1902). Vignaud considers the letter of Toscanelli a forgery, and the object of Columbus in making the voyage the discovery of a certain island of which he had been informed by a dying pilot. His work elicited many replies in the form of book reviews or more extended works. Of the former may be mentioned those of E. G. Bourne (American Historical Review, January, 1903) and Sophus Ruge (Zeitschrift der Gesellschaft fur Erdkunde zu Berlin, 1902); among the latter, the monumental work, Christopher Columbus, His Life, His Work, His Remains, by John Boyd Thacher (I., 1903). Few scholars seem to have been convinced by the arguments of Vignaud, but the whole question must be considered as still undetermined. The last word is E. G. Bourne, Spain in America (The American Nation, III., 1904).

SOURCES

A large number of the contemporary accounts of the early expeditions of discovery and adventure are published by the Hakluyt Society. These volumes are provided with introductions of great value and with numerous maps, glossaries, and other material illustrative of the time. They cover a long period of time and include many lines of travel not referred to in this book; but many of them refer to the early expeditions to the southeast, west, and northwest which had much to do with the discovery and exploration of America. Some of the most important publications of this character in the series are the following: Select Letters of Columbus, edited by R. H. Major (II, and XLIII, 1849 and 1870); Narratives of Early Voyages to the Northwest, edited by Thomas Rundall (V., 1851); India in the Fifteenth Century, edited by R. H. Major (XXII., 1859); The Commentaries of the Great Afonso Dalboquerque, edited by Walter de Gray Birch (LIII., LV., LXII., LXIX., 1875, 1880, and 1883); The Voyage of John Huyghen van Linschoten to the East Indies, edited by A. C. Burnell and P. A. Tiele (LXX. and LXXI., 1884); The Journal of Christopher Columbus, edited by C. R. Markham (LXXXVI., 1892); The Discovery and Conquest of Guinea, Written by Gomes Eannes de Azurara, edited by C. R. Beazley and Edgar Prestage (XCV. and C., 1896 and 1900); The First Voyage of Vasco da Gama, edited by E. G. Ravenstein (XCIX., 1898); Texts and Versions of John de Piano Carpini and William de Rubruquis, edited by C. R. Beazley (1903).

The standard editions of the narratives of the early land travellers in eastern Asia are those of the Recueil de Voyages et de Memoires publie par la Societe de Geographie, including (IV., 1839) Relations des Voyages de Guillaume de Rubruk, Jean du Plan Carpin, etc. (edited by M. A. R. D'Avezac); and Schafer et Cordier, Recueil de Voyages et de Documents pour Servir a L'Histoire de la Geographie, especially "Voyages en Asie ... du ... Odoric de Pordenone" (edited by Henri Cordier). English translations of Rubruquis and Pordenone also appear as an appendix in Travels of Sir John Mandeville, edited by A. W. Pollard (1900). Sir John Mandeville is worthless as an historical source, as his genuine material is all drawn from these sources and from Marco Polo, and there is no probability that he ever travelled in the East. His own additions are usually mendacious. The standard edition of Marco Polo is that of Sir Henry Yule (2 vols., 1871). This has just been reprinted with additional editorial notes by Henri Cordier, under the title, The Book of Ser Marco Polo the Venetian, Concerning the Kingdoms and Marvels of the East, etc. (1903). A valuable collection of narratives of early discovery is M. F. de Navarrete, Coleccion de los Viages y Descubrimientos (5 vols., 1825- 1837). Those of particular interest to England are in Richard Hakluyt, Principal Navigations, Voyages, and Discoveries (1589, reprinted 1903, to be in 12 vols.).

GEOGRAPHY AND COMMERCE

Among the standard histories of mediaeval and modern geography are Joachim Lelewel, Geographie du Moyen Age (4 vols., 1852-1857); Vivien de St. Martin, Histoire de la Geographie et des Decouvertes Geographiques (1873); M. F. Vicomte de Santarem, Essai sur L'Histoire de la Cosmographie pendant le Moyen Age (3 vols., 1849-1852); and C. R. Beazley, The Dawn of Modern Geography (vols. I. and II., 1897 and 1901). A full account of the history and development of maps, especially of the form known as portolani, is to be found in the two works translated from the Swedish of A. E. Nordenskiold: Facsimile Atlas to the Early History of Cartography (1889), Periplus, an Essay on the Early History of Charts and Sailing-Directions (1 vol. and an atlas, 1897); G. Wauverman, Histoire de L'Ecole Cartographique Belge et Anversois du 16 degrees Siecle (2 vols., 1895).

The state of geographical knowledge at the beginning of the period of explorations is well described in C. R. Beazley, Introduction to the volume of the Hakluyt Society's publications for 1899. F. Kunstmann, Die Kenntniss Indiens in XV. Jahrhunderts (1863); and G. H. Pertz, Der Aelteste Versuch zur Entdeckung des Seeweges nach Ostindien (1859), describe two important phases of that subject.

The fullest and best work on the relations between the Orient and the Occident, the trade-routes, the objects of trade, and the methods of its administration is Wilhelm Heyd, Geschichte des Levantehandels im Mittelalter (2 vols., 1879). There is a French translation of this work (1885-1887), which is later and has been corrected by the author. There is a valuable article on ancient trade in Encyclopaedia Biblica, IV., 48, etc. Much that is suggestive and informing concerning Eastern commerce and trade-routes can be found in Sir W. W. Hunter, History of British India, I. (1899), and on the products of the East in Sir George Birdwood, Report of Commissioners for the Paris Exhibition of 1878 (1878). Some information concerning trade organization in the Mediterranean Sea and throughout Europe can be found in William Cunningham, An Essay on Western Civilization in Its Economic Aspects (2 vols., 1898-1900). H. H. Helmolt, General History, VII., pt. i., pp. 1- 139, has a long and valuable chapter on "The Economic Development of Western Europe Since the Time of the Crusades," by Dr. Richard Mayr. John Fiske, The Discovery of America (2 vols., 1892), contains an interesting popular account of the trade conditions of the time and of those explorations which were directed westward.

The formation of the later commercial companies is described and the provisions of their charters analyzed in P. Bonnassieux, Les Grandes Compagnies de Commerce (1892). This work is somewhat superficial, being based, apparently, entirely on works in the French and Latin languages, and using secondary materials where primary sources are attainable; but it stands almost alone in its subject, and has, therefore, considerable importance.

Naval architecture is described in Auguste Jal, Archeologie Navale (2 vols., 1840); and J. P. E. Jurien de la Graviere, Les Manns du XV. et du XVI. Siecle (1879); Sir William Stirling-Maxwell, Don John of Austria (2 vols., 1883).

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