maintain ties the (22 Hen. law the roads against the special care of the sheriff's toun and leet,1 was finally so apportioned that the burden of maintaining the highways devolved the parishes alone upon the parish, while the more general duty of building the roads, and repairing bridges passed to the county as a whole. In the counorder to clearly define the duty last named was passed the bridges; statute 2 of bridges (22 Hen. VIII. c. 5), whereby the burden the statute of bridges of contributing to their maintenance was cast upon all householders, whether landowners or not, and upon all real estates, VIII. c. 3) ; whether their owners lived in the county or not. As all inhabitants, regardless of the holding of land, used the roads, the duty of maintaining them was cast upon all as a common common law obligation, enforceable by the old Norman practice of obligation fines and amercements imposed under indictments presentable to maintain either in the courts of assize or greater sessions. In order enforced to render more efficient a system that depended in the main parish by upon the power to punish the delinquent parish by indictment indictment; was passed, in aid of the common law, the statute of 2 & 3 surveyors of Phil. & Mar. c. 8, which created the offices of surveyors of created by highways highways, whose incumbents were electable by the parish, 2 & 3 Phil. and whose special duty it was to keep the roads in repair through services which they were authorized to exact in kind from all parishioners, according to a scheme that imposed a certain part of the labor upon every possessor of an acre of land, upon every owner of a team or plough, and upon every other inhabitant able to work who was not in a domestic relation of annual service.5 And when the, labor in kind thus provided did not suffice, the parish could escape an indictment for roads badly kept only by bearing a highway rate assessed a highway as a supplementary tax by the justices of the peace. And so, assessed by before the Tudor period ended, the parish, in addition to the the peace; 6 1 It was the duty of the constable to see that each landowner fulfilled this condition of his tenure, and to report his failure to the court-leet. Smith, The Parish, p. 105, and notes. 2 This act was simply declaratory of the common law obligation, which required that all bridges should be repaired by the whole county as "of common right."- Coke, 2 Inst. 701. As to the effect of 43 Geo. III. c. 59 upon the liability, see R. v. Wilts, 1 Sal keld, 359. rate justices of church rate in reference to which it had a constitutional right to be consulted, became subject to a poor rate and to a supplementary highway rate.1 The former, imposed by the churchwardens and overseers of the poor, was expended under the supervision of the justices of the peace; the latter, assessed by the justices, was expended under the immediate supervision of the surveyors of highways whom the parish elected. The most important change which then ensued in the parochial constitution as thus reorganized - a change that made its mark upon the local institutions of the new world—was that through which the powers originally vested in the open vestry, composed of all parishioners, gradually passed to a committee or council of into a close that body which, under the name of a select vestry, hardened into a close corporation that filled all vacancies in its own ranks by coöptation.2 the open vestry gradually hardened corporation known as the select vestry. Development of the system of county administration; As a part of the development which took place during this period in the parochial constitution should be noted here the coincident growth in the system of county administration, to whose supervision and control the parishes were subordinate in almost every particular. The progressive element in the justices of county constitution was the office of justice of the peace, the peace; whose history has been heretofore reviewed down to the point at which the justices, fully armed with judicial powers, hold regular courts known as quarter sessions, in which as police magistrates they try, with the aid of juries, all the lesser offences which, in the period following the Conquest, had been presented and tried in the courts-leet. In that way the criminal punished in and police jurisdiction of the manorial courts, excepting the view of frank-pledge,3 was, through the rise of justices of the peace, gradually transferred to the quarter sessions which try all serious "petty larcenies and misdemeanors" only, while trials of all reserved for serious offences are reserved for the courts of assize. The in their courts of quarter sessions, try all lesser offences originally the courts leet; offences the courts of assize; high constables originally appointed at the courts-leet of the hundred or franchise, in default of an election in that way, are 1 "The personal service nominally continued, as to highways, under the name of statute duty, until the present Highway Act was passed in 1835. It was regularly compounded for, however, on what were called 'composition days.' The whole is now commuted to a rate," and is levied by the highway surveyors, the elected officers of the parish.-Smith, The Parish, p. 566, and notes. 2 Cf. vol. i. p. 37, and notes. 8 "A manorial right exercised in the courts - leet, where it still exists."Stubbs, Const. Hist., vol. i. p. 88. 4 Vol. i. pp. 452-454. sessions system; become sessions as the administra of the appointed by the justices at their quarter sessions,1 a practice which has been extended to the appointment of the petty constables as well.2 From the right of appointment naturally followed the right of dismissal, and in that way the quarter the quarter sessions acquired full control over all local police officers, control the including even the coroners themselves. Thus deprived of local police every important function, the courts-leet withered and became courts-leet obsolete in the shade of the quarter sessions, just as the obsolete; ancient county courts, after having their powers transferred to the courts of assize, withered into that theoretical existence which they have preserved to the present day. The court of the quarter quarter sessions must be viewed, however, not simply as a police court, but rather as the supreme administrative body of supreme the county, constituted by the crown for the supervision and tive body direction of the limited system of local self-government which county; the parishes were permitted to enjoy. The supervisory power made a of the quarter sessions - which by 43 Eliz. c. 2, s. 6, was court of declared to be a general court of appeal for "all persons who appeal by 43 Eliz. c. feel themselves aggrieved by any action or neglect of the 2, s. 6; church-wardens or overseers of the poor" really extended to nearly every branch of the parochial administration. While the church-wardens as church officers were accountable only the justices to the ecclesiastical parish, as administrators of the poor rate the poorthey were directly accountable to the justices of the peace, who appointed the overseers as their colleagues, who examined their accounts, who settled all appeals against the rating, who assessed other parishes in the hundred when any one parish was unable to make the necessary provision; in fine, who supplied all the coercive authority necessary for the enforcement and the of the poor-law system. Over the management of highways manage the justices exercised a similar control through the statutory highways. 1 Vol. i. p. 454 2 The right of the courts-leet to chose parish constables was taken away in 1842 by 5 & 6 Vict. c. 109, s. 21. As to the ancient mode of appointment by the courts-leet, see Sir Thomas Smith, The Commonw. of Eng. (1621), bk. ii. c. 12. By 1 Hen. VIII. c. 7, the magistrates were authorized to punish the coroners for breach of duty. + Vol. i. pp. 320, 321, and notes. In theory and as matter of law, both the ancient county courts and the courts- 5 The church courts had no juris- 6 Upon all these points, see Toulmin Smith, The Parish, pp. 146, 151, 158, 579. general supervise law system, ment of Tudors strengthened the power to fix the working days for the repair of the roads,1 and through the imposition of the supplementary highway tax, which, like the bridge rate, was levied upon the same basis as the poor rate. The primary agent, then, of the Tudor administrative system was the invigorated parish, which discharged control of its functions under the supervision and control of the county local admin- government as represented by the quarter sessions of the jus istration. tices of the peace, who were appointed by the crown, and who could be summarily punished by it, either by dismissal, or through the corrective jurisdiction over the abuses of office as exercised in the star chamber.2 central over Tudors reorganized host composed of both feudal and national elements; In connection with the system of county administration the militia; must also be mentioned the reorganization, which took place during the Tudor period, of the county militia, the national force, whose existence is clear from the earliest times. In the the Norman review heretofore made of the military system as it existed after the Conquest, the conclusion was reached that as suc cessors of the Old-English kings the Norman and Angevin rulers retained the right to summon, under the command of the sheriffs, the ancient constitutional force of the shire, while as feudal lords they gained through the growth of tenures the right to call upon the feudal array to perform the military service due from their lands. To the army thus made up of feudal and national elements were sometimes added mercenary soldiers, whom the Norman kings employed from the beginduty of the ning. As the primary and normal duty of the county militia militia was that of national defence, the crown was forced to rely mainly upon the feudal array for military service abroad or in the border wars against Wales and Scotland. And yet the very nature of that service implied long campaigns, with which the short-time service due from the feudal array was incompatible. The need thus created for mercenary soldiers, whose services could be controlled as long as they were required, led to the commutation of personal service for the money payment called mercenary soldiers sometimes added; primary national defence; feudal array and military service abroad; 1 See 5 Eliz. c. I3; 29 Eliz. c. 5. was only technically developed somewhat later by the formation of a 'Staatsrath' and Behördensystem' for the provincial and district government." Gneist, Hist. of the Eng. Const., p. 531. 8 Vol. i. p. 296. service money called great lords deprived military created; mainte scutage, an anti-feudal device, whereby a fund for the hiring of such mercenaries was provided.1 In addition to that blow at the commuted feudal array, by the breaking up of the great estates which for the the process of subinfeudation steadily advanced, the great lords payment were gradually deprived of their military followings, whose scutage; numbers originally depended upon the extent of their terri- how the torial possessions.2 In spite, however, of both assaults the were feudal element was able to nourish and maintain itself as the of their most powerful military force in the state by an artificial process followings; of adoption, which consisted of the giving of their liveries an artificial by the baronial houses not only to the smaller gentry and vassalage farmers of the neighborhood, but also to the vagrant or the outlaw who was willing to swell the retinue of the great man and to wear his livery, in consideration of his maintenance and livery and protection. Through the artificial vassalage which thus grew nance; up the great baronial leaders were surrounded after the French wars began by standing companies of trained and liveried soldiers, who stood to their chief in a relation which substantially reproduced that embodied in the comitatus of earlier times. With the feudal array thus reconstituted the crown soon en- the crown tered into new relations through a series of contracts, which with the appear in the archives in great numbers from the time of Ed- feudal ward III., and in which the great lords undertook to furnish reconstigreater or smaller bands at a daily rate per man which varied according to rank. Of the superior efficiency of these trained bands in foreign warfare there can be no doubt, but the difficulty was that when such warfare ended, the military house- the new holds of the baronial chiefs became hotbeds of a lawless spirit households of disorder, ever ready to overawe not only the law courts and become the parliament, but even to defy the king himself.6 By this disorder; condition of things was fostered the two rival parties which for so long a time involved the realm in the dynastic struggle the system carried on under the opposing banners of York and Lancaster. extin It is not therefore strange that at the close of the War of the guished by Roses, during which the strength of the feudal element was VII.; 1 Vol. i. p. 284. 2 Ibid., pp. 412, 413, 566. 3 Ibid., pp. 566, 567. Ibid., pp. 110, III. Cf. Grose's Military Antiquities, vol. i. p. 71 seq. As to the extant musterroll of the English army which besieged Calais, giving every detail as to the pay é vol. i. p. 567. contracts array as tuted; military hotbeds of of liveries Henry |