can get hold of it.' If Brother Walter, the sacrist of St Edmund's, gets hold of the seal. . . and therewith seals a bond for forty marks to Benedict the Jew of Norwich, there is nothing for an enraged abbot to do but to depose Brother Walter.'* And normally the abbot kept the seal, and could bind the abbey, and was in fact 'the majority.' Thus the Statute of Carlisle (1307) provided for the seal to be laid up in the custody of five monks, and under the private seal of the abbot. It is stated that in 1449 the Court held this statute void for unreasonableness-a laudable practice which has unfortunately gone out of use-for how could a seal ever be used if it were always locked in a box? But it is curious to note that the old muniment chest of the city of Carlisle has five locks, with five keys, and is to be seen to this day in the civic museum there.

That obscure and fragmentary document, the 'Leges Henrici,' dating from about 1118, tells us that in early English tribunals the opinion of the majority on the bench prevailed; but, when the author comes to details, he qualifies this by declaring, 'vincat sententia meliorum et cui justitia magis acquieverit.' The sheriff, that is, must decide in accordance with the opinion of the majority; but this must be the majority by rank, repute, and sound judgment.† In such early times as these the corporate character of cities and boroughs is hardly recognised. Cities and towns there are; but their possessions are viewed as the joint possessions of their citizens. In theory the unanimous consent of them all is necessary to dealings with the property. But-again to quote Pollock and Maitland-'the unanimity of ancient moots is wonderful.' 'Dissentients can be shouted down, or compelled to withdraw their opinions.' So that we are still far from the conception of the rule of a bare majority. Half the assembly cannot be shouted down, nor can it be tired out. In 1293 the burgesses (if we may use an inaccurate title) of Toddington convey land; some of them afterwards repudiate the bargain because they were under age at the time. There is no suggestion of their being bound by the majority of adults.

* Pollock and Maitland (i, 491), quoting Jocelyn de Brakelonda. † Pollock and Maitland (ii, 539) give a rather different interpretation.

Majority decisions came to be accepted at a comparatively early date for the election of members of Parliament. This has, of course, no direct bearing on the problem of the origin of majority rule; for the diversity of interests represented by the various constituencies was sufficient to secure that minorities would have a voice in the House of Commons. Even in elections, however, unanimity long prevailed. By the Reform Act of 1406 returns were to be sealed by all the county electors. The majority of votes was made decisive in 1430, when the forty-shilling freeholder was introduced. In the boroughs it was different. At York, in 26 Eliz.,* we find the majority of thirty-six freeholders nominating four burgesses; then the whole town council appointed two of them and sealed the election. At Worcester, in 1466, the borough members were chosen by the most voice.' But the whole of our medieval history scarcely furnishes more than one or two instances of a contested county election; the town histories too are nearly silent.' ‡

[ocr errors]

Ecclesiastical contests were very frequent; but here there was a superior authority to decide matters. In 1299 the monks of Ely were divided in the election of a bishop; § the majority chose Prior John, the minority the Chancellor, John Langton. The chapter seal was affixed to the record of neither party's election; the king took upon him to confirm the candidate of the minority. The matter was carried to Rome and compromised. Well into the fourteenth century there seems to be no record of dissent in the choosing of a London mayor; though there is an undercurrent of popular dissatisfaction with the exercise of the choice by a select few. The 'Chronicon Angliæ' (p. 112), indeed, presents us with a picture of an early majority election-that of a Speaker by the knights of the shire in 1377. But the knights had been packed by the Duke of Lancaster, and the minority was insignificant; 'pauci de fidelioribus, qui remanserant, tantæ multitudini non poterant prævalere.' It is clear that the chronicler considered that a stronger minority would have obtained more consideration.

• Drake, 'Eboracum,' p. 358.

+ Stubbs, iii, 451, citing Smith's 'Gilds,' p. 393.
§ Prynne, Records,' iii, 784, 785, 798, 799.
Mildmay, 'City of London Elections,' exci.

Ib. p. 452.

Stubbs is mistaken in speaking of it as a 'strong' minority-if its numerical strength is intended for the chronicle repeats that it was the 'pauci qui, ut dixi, remanserant' who then tried to obtain the release of De la Mare. It was strong neither in numbers nor in resolution, for it was soon reduced to terms by threats.

[ocr errors]

Some, but not much, light is thrown on the problem by the history of juries. This is rather like explaining the less obscure by the more obscure, for the history of the jury is wrapped in Cimmerian gloom. Still, we know that the English jury decides unanimously and the Scottish one by a majority. Can the investigation of their origin lead us to any results of importance? We cannot,' says Maitland, treat the unanimous verdict as an aboriginal principle.' He might equally have said, 'We cannot treat the majority verdict as an aboriginal principle.' All that can be said is that there the jurors were; there were their respective convictions; and it was an open question whether the presiding judge would (1) analyse them and adopt the most reasonable, (2) take the majority decision, (3) decline to accept anything but unanimity. Maitland thinks that the prevalence of the third method was due to three reasons, the cardinal one of which was this, that the verdict was the verdict of the locality, personified in the twelve jurors. Just as the district must speak with one voice, dissentients being silenced, so must the jury. In the new-fangled and comparatively unimportant Assize of Novel Disseisin,' Bracton says that a majority verdict sufficed.*

[ocr errors]

We can only conclude, on the whole, that in fifteenth century England the general impression was that a body of persons acting in a given capacity must be unanimous; with the practical qualification that the unanimity may take the form of a unanimous suppression of discordant elements, and may include a good deal of reluctant acquiescence. But the Canon Law took another course; and it was with the Canon Law that the early corporations, being mainly ecclesiastical, were mostly concerned. The canon lawyers, say Pollock and Maitland, escaped the fallacy that some natural law enables a majority of members in a duly convened meeting to express

* Cited by Pollock and Maitland, ii, 623,

the will of the corporation. The hierarchical organisation of the ecclesiastical group kept them from this error. The will of the corporation was expressed, not necessarily by the 'major pars conventus,' but by the 'major et sanior pars.' We have therefore the native idea of unanimity, produced by compromise and the suppression of insignificant opposition; and the canonical idea of intrinsic reasonableness, which may in ordinary matters of administration be ascertained, prima facie, by numbers.

Let us now see how Parliament acted. The first cases of division recorded in the Commons Journals (which begin in 1547) are cases of rejection; of course a majority may well claim a right of veto. Thus on December 8, 1548 (the date of the earliest such division recorded), a private Bill for assurance of the Earl of Bath's lands is noted-'vacat per majorem numerum super Quæstione.' Then on February 1 in the ensuing year a Bill for uniting Trinity Hall and Clerk Hall was lost in the same way, and one for the Rearing of Calves on February 23. On March 28, 1549, a private Bill was rejected by 69 to 68. It is not until 1554, in the reign of Queen Mary I, that we get in the Journals an instance of the passing of a Bill by a majority. This was on April 19 of that year. The entry in the Journals' is short.

'Arguments upon the Bill for the Bishop of Durham.

'Upon the question for the Bill, the House did divide; and the number that said Yea to the Bill were 201 persons, and against the Bill, but 120; and so the Bill passed* with Yea.'

But a very significant addendum follows. 'It is agreed by the House that Mr Speaker, in their names, shall require the Bishop of Durham to show favour unto Sir Francis Jobson, Kt., in his suit'-clearly a compromise in view of the considerable minority. In the subsequent Parliament a curious incident is recordedthe voluntary secession of thirty-three members of Parliament, who went on strike because they found the majority inclined to sacrifice everything to the Ministry.'

*The Bill had been rejected by a majority on Dec. 4, 1553 ('Com. Journals').

† Jobson had been granted bishopric lands by King Edward VI; see Commons' Journals, April 18.

They were indicted; and six of them submitted to the payment of fines, whilst the Queen's demise stopped the proceedings against the rest. Plowden was one of them. Whether any earlier divisions ever resulted in the passage of a Bill of public importance may be doubted. A story is told in the Parliamentary History (vol. iii, p. 34) that in 15 Hen. VIII, on a motion for an increased supply, it was doubtful whether the Yeas or the Noes had it. The House divided, the citizens and burgesses by themselves, and the knights on the other side. Apparently each interest was unanimous; the town representatives affirmed that those in favour of the motion were enemies to the realm.* The King then privately sent for the Speaker† and threatened him; and on the next day the Bill passed. This rests on no firmer foundation than gossip out of old letters; and it may be doubted whether the division by Yea and Nay is not the embroidery of a later time. It seems much more likely that here we have a glimpse of an older procedure-the voting by interests, town and country opposing each other. It is most unlikely that the knights present on this occasion exactly equalled the numbers of the burgesses. The deadlock was probably caused by the burgesses (of whatever number) standing out as a class against the county members; and, if this is so, we have an invaluable indication that the principle of numerical rule took consistency during Henry's prolonged reign. In 33 Henry VIII (1542), a member was arrested for debt, and, he being discharged by the House, the creditor's remedy was preserved to him by 14 votes. This incident, related by Hollingshead (p. 955), appears to be the first unequivocal instance of a division in the House of Commons: but it dealt with a mere personal indulgence to an individual.

On February 24, 1558, a resolution was taken by 112 to 107; but it was again rather of the nature of a judicial

* The proposal was that an existing land tax of 8 per cent, should be levied on personal property as well.

†The Parl. Hist.' says 'an influential member'; but from the original story in Collins' Peerage,' s.v. 'Manchester,' it seems that it was Sir Edw. Montacute, the Speaker (afterwards Chief Justice, and ancestor of the Dukes of Manchester). The 'Dict. of Nat. Biog.' discredits the whole anecdote, because More is supposed to have been Speaker at the time, and there is no record of Montacute's ever being in Parliament. But the story is circumstantial.

« VorigeDoorgaan »