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.

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.*

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.

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determination in a private matter, i.e. whether fraudulent outlaw should continue to sit for Camelford. It was decided that he should. So, on January 21, 1581, after a warm debate, a public fast was appointed in the Temple Church by 115 to 100.* In one case, in 1571, on the question being put regarding the second reading of a Bill to enable non-residents to be elected as burgesses, 'some said Yea, and some Nay, but the greater number seemed to say Yea'; whereupon the debate appears to have commenced again de novo (D'Ewes, 168). That the habit of taking divisions was novel may perhaps be inferred from another incident related by D'Ewes (p. 54). A member declared to the House that the Master of the Rolls' servant had boasted of hearing the Lords say at his master's table that 'If a Bill were brought in for women's wires in their pastes, they [the Commons] would dispute it and go to the question.'†

The jealousy which the Houses of Parliament long showed of any report of their proceedings makes it difficult to say how far these instances were typical. Why, in these sporadic cases, the clerks should lift the curtain and set down the figures, it is difficult to say. It was not until late in the seventeenth century that regular treatises on parliamentary procedure were composed. Scobell then (1656) shows us the modern system of voting by count of heads as in regular force for the determination of every question. It seems, says Redlich (ii, 260), to have been looked upon, at the end of the 16th century, as an unusual and important matter;' and the practical difficulties of division were the subject of complaint. It was the custom that one party should leave the House and be counted outside; they complained that members were afraid to join them, for fear of losing their seats. Sometimes members were subjected to the gentle suasion of a friendly pull. Thus in the close division of March 13, 1601, it was complained that one of the members, who wished to go out with the Nays,

D'Ewes, pp. 282-3. 'The House being divided, and many arguments being spent pro et con., at length the said matter in question was put to voices, and the better side had the greater number; for there were 115 voices for it, and but 100 against it.'

The servant was committed; but, Parliament being dissolved three weeks later, we hear no more of the incident.

had been held back by another member. Sir Walter Raleigh remarked, like a bold sailor, Why, if it please you, it is a small matter to pull one by the sleeve, for so I have done myself sometimes.'

In the obscurity which remains, there seem to be two possible hypotheses open. First, that decisions of the House were long unanimous in theory; that the minority gave way and concurred in the evident sense of the great bulk of the House; that divisions were resorted to but seldom, and in comparatively unimportant matters; but that insensibly they came to be accepted as a simple and efficient, if unsatisfactory, means of arriving at a rapid decision on all matters. This seems to be on the whole the most reasonable theory. Redlich takes a different view, holding that divisions, which he has already admitted to be infrequent and unusual, so late as the sixteenth century, were almost coeval with the existence of the House. As soon as we are able to follow the proceedings of the House in detail,' he declares, 'we find the majority principle old-established and uncontested.' But the House has already existed for three hundred years before we are able to follow its proceedings in detail. When we can do so, we find divisions recorded on the rarest occasions, and seldom or never on vital questions.

Redlich supports his theory by the suggestion that, in adopting the majority principle, the Commons imitated the practice of the Magnum Concilium which existed in feudal times. Magna Carta contains a provision that, out of twenty-five guardian barons, the majority present at a duly-summoned meeting can act. The Provisions of Oxford give their twenty-five select nobles a veto on the acts of the Chancellor, exercisable by the 'greinure partie.' But these cases are very far from establishing a general rule. In each case it is a check which is imposed upon the arbitrary action of the executive. The guardian barons under Magna Carta are a committee of check upon the King. Naturally the majority at a meeting can exercise the check. Any single baron of the twenty-five might almost have been entrusted with the power. The twenty-five lords under the Provisions of Oxford are again a committee of check

upon the Chancellor. Naturally it was desired to