PART III.
THE ENGLISH CONSTITUTION
Reign of Edward I.--Confirmatio Chartarum--Constitution of Parliament
--the Prelates--the Temporal Peers--Tenure by Barony--its Changes--
Difficulty of the Subject--Origin of Representation of the Commons--
Knights of Shires--their Existence doubtfully traced through the Reign
of Henry III.--Question whether Representation was confined to
Tenants in capite discussed--State of English Towns at the Conquest
and afterwards--their Progress--Representatives from them summoned to
Parliament by Earl of Leicester--Improbability of an earlier Origin--
Cases of St. Albans and Barnstaple considered--Parliaments under
Edward I.--Separation of Knights and Burgesses from the Peers--Edward
II.--gradual Progress of the Authority of Parliament traced through
the Reigns of Edward III. and his Successors down to Henry IV.--
Privilege of Parliament--the early Instances of it noticed--Nature of
Borough Representation--Rights of Election--other Particulars relative
to Election--House of Lords--Baronies by Tenure--by Writ--Nature of
the latter discussed--Creation of Peers by Act of Parliament and by
Patent--Summons of Clergy to Parliament--King's Ordinary Council--its
Judicial and other Power--Character of the Plantagenet Government--
Prerogative--its Excesses--erroneous Views corrected--Testimony of Sir
John Fortescue to the Freedom of the Constitution--Causes of the
superior Liberty of England considered--State of Society in England--
Want of Police--Villenage--its gradual Extinction--latter Years of
Henry VI.--Regencies--Instances of them enumerated--Pretensions of the
House of York, and War of the Roses--Edward IV.--Conclusion.
[Sidenote: Accession of Edward I.]
Though the undisputed accession of a prince like Edward I. to the throne
of his father does not seem so convenient a resting-place in history as
one of those revolutions which interrupt the natural chain of events,
yet the changes wrought during his reign make it properly an epoch in
the progress of these inquiries. And, indeed, as ours is emphatically
styled a government by king, lords, and commons, we cannot, perhaps, in
strictness carry it further back than the admission of the latter into
parliament; so that if the constant representation of the commons is to
be referred to the age of Edward I., it will be nearer the truth to date
the English constitution from that than from any earlier era.
[Sidenote: Confirmation of the Charters.]
The various statutes affecting the law of property and administration of
justice which have caused Edward I. to be named, rather hyperbolically,
the English Justinian, bear no immediate relation to our present
inquiries. In a constitutional point of view the principal object is
that statute entitled the Confirmation of the Charters, which was very
reluctantly conceded by the king in the 25th year of his reign. I do not
know that England has ever produced any patriots to whose memory she
owes more gratitude than Humphrey Bohun, earl of Hereford and Essex, and
Roger Bigod, earl of Norfolk. In the Great Charter the base spirit and
deserted condition of John take off something from the glory of the
triumph, though they enhance the moderation of those who pressed no
further upon an abject tyrant. But to withstand the measures of Edward,
a prince unequalled by any who had reigned in England since the
Conqueror, for prudence, valour, and success, required a far more
intrepid patriotism. Their provocations, if less outrageous than those
received from John, were such as evidently manifested a disposition in
Edward to reign without any control; a constant refusal to confirm the
charters, which in that age were hardly deemed to bind the king without
his actual consent; heavy impositions, especially one on the export of
wool, and other unwarrantable demands. He had acted with such unmeasured
violence towards the clergy, on account of their refusal of further
subsidies, that, although the ill-judged policy of that class kept their
interests too distinct from those of the people, it was natural for all
to be alarmed at the precedent of despotism.[1] These encroachments
made resistance justifiable, and the circumstances of Edward made it
prudent. His ambition, luckily for the people, had involved him in
foreign warfare, from which he could not recede without disappointment
and dishonour. Thus was wrested from him that famous statute,
inadequately denominated the Confirmation of the Charters, because it
added another pillar to our constitution, not less important than the
Great Charter itself.[2]
It was enacted by the 25 Edw. I. that the charter of liberties, and that
of the forest, besides being explicitly confirmed,[3] should be sent to
all sheriffs, justices in eyre, and other magistrates throughout the
realm, in order to their publication before the people; that copies of
them should be kept in cathedral churches, and publicly read twice in
the year, accompanied by a solemn sentence of excommunication against
all who should infringe them; that any judgment given contrary to these
charters should be invalid, and holden for nought. This authentic
promulgation, those awful sanctions of the Great Charter, would alone
render the statute of which we are speaking illustrious. But it went a
great deal further. Hitherto the king's prerogative of levying money by
name of tallage or prise from his towns and tenants in demesne had
passed unquestioned. Some impositions, that especially on the export of
wool, affected all his subjects. It was now the moment to enfranchise
the people, and give that security to private property which Magna
Charta had given to personal liberty. By the 5th and 6th sections of
this statute "the aids, tasks, and prises," before taken are renounced
as precedents; and the king "grants for him and his heirs, as well to
archbishops, bishops, abbots, priors, and other folk of holy church, as
also to earls, barons, and to all commonalty of the land, that for no
business from henceforth we shall take such manner of aids, tasks, nor
prises, but by the common assent of the realm, and for the common
profit thereof, saving the ancient aids and prises due and accustomed."
The toll upon wool, so far as levied by the king's mere prerogative, is
expressly released by the seventh section.[4]
[Sidenote: Constitution of parliament.]
We come now to a part of our subject exceedingly important, but more
intricate and controverted than any other, the constitution of
parliament. I have taken no notice of this in the last section, in order
to present uninterruptedly to the reader the gradual progress of our
legislature down to its complete establishment under the Edwards. No
excuse need be made for the dry and critical disquisition of the
following pages; but among such obscure inquiries I cannot feel myself
as secure from error as I certainly do from partiality.
[Sidenote: The spiritual peers.]
One constituent branch of the great councils held by William the
Conqueror and all his successors was composed of the bishops and the
heads of religious houses holding their temporalities immediately of the
crown. It has been frequently maintained that these spiritual lords sat
in parliament only by virtue of their baronial tenure. And certainly
they did all hold baronies, which, according to the analogy of lay
peerages, were sufficient to give them such a share in the legislature.
Nevertheless, I think that this is rather too contracted a view of the
rights of the English hierarchy, and, indeed, by implication, of the
peerage. For a great council of advice and assent in matters of
legislation or national importance was essential to all the northern
governments. And all of them, except, perhaps, the Lombards, invited the
superior ecclesiastics to their councils; not upon any feudal notions,
which at that time had hardly begun to prevail, but chiefly as
representatives of the church and of religion itself; next, as more
learned and enlightened counsellors than the lay nobility; and in some
degree, no doubt, as rich proprietors of land. It will be remembered
also that ecclesiastical and temporal affairs were originally decided in
the same assemblies, both upon the continent and in England. The Norman
Conquest, which destroyed the Anglo-Saxon nobility, and substituted a
new race in their stead, could not affect the immortality of church
possessions. The bishops of William's age were entitled to sit in his
councils by the general custom of Europe, and by the common law of
England, which the Conquest did not overturn.[5] Some smaller arguments
might be urged against the supposition that their legislative rights are
merely baronial; such as that the guardian of the spiritualities was
commonly summoned to parliament during the vacancy of a bishopric, and
that the five sees created by Henry VIII. have no baronies annexed to
them;[6] but the former reasoning appears less technical and
confined.[7]
Next to these spiritual lords are the earls and barons, or lay peerage
of England. The former dignity was, perhaps, not so merely official as
in the Saxon times, although the earl was entitled to the third penny of
all emoluments arising from the administration of justice in the
county-courts, and might, perhaps, command the militia of his county,
when it was called forth.[8] Every earl was also a baron, and held an
honour or barony of the crown, for which he paid a higher relief than an
ordinary baron, probably on account of the profits of his earldom. I
will not pretend to say whether titular earldoms, absolutely distinct
from the lieutenancy of a county, were as ancient as the Conquest, which
Madox seems to think, or were considered as irregular so late as Henry
II., according to Lord Lyttelton. In Dugdale's Baronage I find none of
this description in the first Norman reigns; for even that of Clare was
connected with the local earldom of Hertford.
[Sidenote: Question as to the nature of baronies.]
It is universally agreed that the only baronies known for two centuries
after the Conquest were incident to the tenure of land held immediately
from the crown. There are, however, material difficulties in the way of
rightly understanding their nature which ought not to be passed over,
because the consideration of baronial tenures will best develop the
formation of our parliamentary system. Two of our most eminent legal
antiquaries, Selden and Madox, have entertained different opinions as to
the characteristics and attributes of this tenure.
[Sidenote: Theory of Selden;]
According to the first, every tenant in chief by knight-service was an
honorary or parliamentary baron by reason of his tenure. All these were
summoned to the king's councils, and were peers of his court. Their
baronies, or honours, as they were frequently called, consisted of a
number of knight's fees; that is, of estates, from each of which the
feudal service of a knight was due; not fixed to thirteen fees and a
third, as has been erroneously conceived, but varying according to the
extent of the barony and the reservation of service at the time of its
creation. Were they more or fewer, however, their owner was equally a
baron, and summoned to serve the king in parliament with his advice and
judgment, as appears by many records and passages in history.
But about the latter end of John's reign, some only of the most eminent
tenants in chief were summoned by particular writs; the rest by one
general summons through the sheriffs of their several counties. This is
declared in the Great Charter of that prince, wherein he promises that,
whenever an aid or scutage shall be required, faciemus summoneri
archiepiscopos, episcopos, abbates, comites et majores barones regni
sigillatim per literas nostras. Et praeterea faciemus summoneri in
generali per vicecomites et ballivos nostros omnes alios qui in capite
tenent de nobis. Thus the barons are distinguished from other tenants in
chief, as if the former name were only applicable to a particular number
of the king's immediate vassals. But it is reasonable to think that,
before this charter was made, it had been settled by the law of some
other parliament, how these greater barons should be distinguished from
the lesser tenants in chief; else what certainty could there be in an
expression so general and indefinite? And this is likely to have
proceeded from the pride with which the ancient and wealthy barons of
the realm would regard those newly created by grants of escheated
honours, or those decayed in estate, who yet were by their tenures on an
equality with themselves. They procured therefore two innovations in
their condition; first that these inferior barons should be summoned
generally by the sheriff, instead of receiving their particular writs,
which made an honorary distinction; and next, that they should pay
relief, not, as for an entire barony, one hundred marks; but at the rate
of five pounds for each knight's fee which they held of the crown. This
changed their tenure to one by mere knight-service, and their
denomination to tenants in chief. It was not difficult, afterwards, for
the greater barons to exclude any from coming to parliament as such
without particular writs directed to them, for which purpose some law
was probably enacted in the reign of Henry III. If indeed we could place
reliance on a nameless author whom Camden has quoted, this limitation of
the peerage to such as were expressly summoned depended upon a statute
made soon after the battle of Evesham. But no one has ever been able to
discover Camden's authority, and the change was, probably, of a much
earlier date.[9]
[Sidenote: of Madox,]
[Sidenote: and observations on both.]
Such is the theory of Selden, which, if it rested less upon conjectural
alterations in the law, would undoubtedly solve some material
difficulties that occur in the opposite view of the subject. According
to Madox, tenure by knight-service in chief was always distinct from
that by barony. It is not easy, however, to point out the characteristic
differences of the two; nor has that eminent antiquary, in his large
work, the Baronia Anglica, laid down any definition, or attempted to
explain the real nature of a barony. The distinction could not consist
in the number of knight's fees; for the barony of Hwayton consisted of
only three; while John de Baliol held thirty fees by mere
knight-service.[10] Nor does it seem to have consisted in the privilege
or service of attending parliament, since all tenants in chief were
usually summoned. But whatever may have been the line between these
modes of tenure, there seems complete proof of their separation long
before the reign of John. Tenants in chief are enumerated distinctly
from earls and barons in the charter of Henry I. Knights, as well as
barons, are named as present in the parliament of Northampton in 1165,
in that held at the same town in 1176, and upon other occasions.[11]
Several persons appear in the Liber Niger Scaccarii, a roll of military
tenants made in the age of Henry II., who held single knight's fees of
the crown. It is, however, highly probable, that, in a lax sense of the
word, these knights may sometimes have been termed barons. The author of
the Dialogus de Scaccario speaks of those holding greater or lesser
baronies, including, as appears by the context, all tenants in
chief.[12] The former of these seem to be the majores barones of King
John's Charter. And the secundae dignitatis barones, said by a
contemporary historian to have been present in the parliament of
Northampton, were in all probability no other than the knightly tenants
of the crown.[13] For the word baro, originally meaning only a man, was
of very large significance, and is not unfrequently applied to common
freeholders, as in the phrase of court-baron. It was used too for the
magistrates or chief men of cities, as it is still for the judges of the
exchequer, and the representatives of the Cinque Ports.[14]
The passage however before cited from the Great Charter of John affords
one spot of firm footing in the course of our progress. Then, at least,
it is evident that all tenants in chief were entitled to their summons;
the greater barons by particular writs, the rest through one directed to
their sheriff. The epoch when all, who, though tenants in chief, had not
been actually summoned, were deprived of their right of attendance in
parliament, is again involved in uncertainty and conjecture. The unknown
writer quoted by Camden seems not sufficient authority to establish his
assertion, that they were excluded by a statute made after the battle of
Evesham. The principle was most likely acknowledged at an earlier time.
Simon de Montfort summoned only twenty-three temporal peers to his
famous parliament. In the year 1255 the barons complained that many of
their number had not received their writs according to the tenor of the
charter, and refused to grant an aid to the king till they were
issued.[15] But it would have been easy to disappoint this mode of
packing a parliament, if an unsummoned baron could have sat by mere
right of his tenure. The opinion of Selden, that a law of exclusion was
enacted towards the beginning of Henry's reign is not liable to so much
objection. But perhaps it is unnecessary to frame an hypothesis of this
nature. Writs of summons seem to have been older than the time of
John;[16] and when this had become the customary and regular preliminary
of a baron's coming to parliament, it was a natural transition to look
upon it as an indispensable condition; in times when the prerogative was
high, the law unsettled, and the service in parliament deemed by many
still more burthensome than honourable. Some omissions in summoning the
king's tenants to former parliaments may perhaps have produced the
above-mentioned provision of the Great Charter, which had a relation to
the imposition of taxes wherein it was deemed essential to obtain a more
universal consent than was required in councils held for state, or even
for advice.[17]
[Sidenote: Whether mere tenants in chief attended parliament under Henry
III.]
It is not easy to determine how long the inferior tenants in chief
continued to sit personally in parliament. In the charters of Henry
III., the clause which we have been considering is omitted: and I think
there is no express proof remaining that the sheriff was ever directed
to summon the king's military tenants within his county, in the manner
which the charter of John required. It appears however that they were in
fact members of parliament on many occasions during Henry's reign, which
shows that they were summoned either by particular writs or through the
sheriff; and the latter is the more plausible conjecture. There is
indeed great obscurity as to the constitution of parliament in this
reign; and the passages which I am about to produce may lead some to
conceive that the freeholders were _represented_ even from its
beginning. I rather incline to a different opinion.
In the Magna Charta of 1 Henry III. it is said: Pro hac donatione et
concessione ... archiepiscopi, episcopi, comites, barones, milites, et
libere tenentes, et omnes de regno nostro, dederunt nobis quintam
decimam partem omnium bonorum suorum mobilium.[18] So in a record of 19
Henry III.: Comites, et barones, et omnes alii de toto regno nostro
Angliae, spontanea voluntate sua, concesserunt nobis efficax
auxilium.[19] The largeness of these words is, however, controlled by a
subsequent passage, which declares the tax to be imposed ad mandatum
omnium comitum et baronum et omnium aliorum _qui de nobis tenent in
capite_. And it seems to have been a general practice to assume the
common consent of all ranks to that which had actually been agreed by
the higher. In a similar writ, 21 Henry III., the rants of men are
enumerated specifically; archiepiscopi, episcopi, abbates, priores, et
clerici terras habentes quae ad ecclesias suas non pertinent, comites,
barones, milites, et liberi homines, pro se et suis villanis, nobis
concesserunt in auxilium tricesimam partem omnium mobilium.[20] In the
close roll of the same year, we have a writ directed to the archbishops,
bishops, abbots, priors, earls, barons, knights, and freeholders (liberi
homines) of Ireland, in which an aid is desired of them, and it is urged
that one had been granted by his fideles Angliae.[21]
But this attendance in parliament of inferior tenants in chief, some of
them too poor to have received knighthood, grew insupportably vexatious
to themselves, and was not well liked by the king. He knew them to be
dependent upon the barons, and dreaded the confluence of a multitude,
who assumed the privilege of coming in arms to the appointed place. So
inconvenient and mischievous a scheme could not long subsist among an
advancing people, and fortunately the true remedy was discovered with
little difficulty.
[Sidenote: Origin and progress of parliamentary representation.]
The principle of representation, in its widest sense, can hardly be
unknown to any government not purely democratical. In almost every
country the sense of the whole is understood to be spoken by a part, and
the decisions of a part are binding upon the whole. Among our ancestors
the lord stood in the place of his vassals, and, still more
unquestionably, the abbot in that of his monks. The system indeed of
ecclesiastical councils, considered as organs of the church, rested upon
the principle of a virtual or an express representation, and had a
tendency to render its application to national assemblies more familiar.
The first instance of actual representation which occurs in our history
is only four years after the Conquest; when William, if we may rely on
Hoveden, caused twelve persons skilled in the customs of England to be
chosen from each county, who were sworn to inform him rightly of their
laws; and these, so ascertained, were ratified by the consent of the
great council. This, Sir Matthew Hale asserts to be "as sufficient and
effectual a parliament as ever was held in England."[22] But there is no
appearance that these twelve deputies of each county were invested with
any higher authority than that of declaring their ancient usages. No
stress can be laid at least on this insulated and anomalous assembly,
the existence of which is only learned from an historian of a century
later.[23]
We find nothing that can arrest our attention, in searching out the
origin of county representation, till we come to a writ in the fifteenth
year of John, directed to all the sheriffs in the following terms: Rex
Vicecomiti N., salutem. Praecipimus tibi quod omnes milites ballivae tuae
qui summoniti fuerunt esse apud Oxoniam ad Nos a die Omnium Sanctorum in
quindecim dies venire facias cum armis suis: corpora vero baronum sine
armis singulariter, et _quatuor discretos milites_ de comitatu tuo,
illuc venire facias ad eundem terminum, ad loquendum nobiscum de
negotiis regni nostri. For the explanation of this obscure writ I must
refer to what Prynne has said;[24] but it remains problematical whether
these four knights (the only clause which concerns our purpose) were to
be elected by the county or returned in the nature of a jury, at the
discretion of the sheriff. Since there is no sufficient proof whereon to
decide, we can only say with hesitation, that there _may_ have been an
instance of county representation in the fifteenth year of John.
We may next advert to a practice, of which there is very clear proof in
the reign of Henry III. Subsidies granted in parliament were assessed,
not as in former times by the justices upon their circuits, but by
knights freely chosen in the county court. This appears by two writs,
one of the fourth and one of the ninth year of Henry III.[25] At a
subsequent period, by a provision of the Oxford parliament in 1258,
every county elected four knights to inquire into grievances, and
deliver their inquisition into parliament.[26]
The next writ now extant, that wears the appearance of parliamentary
representation, is in the thirty-eighth of Henry III. This, after
reciting that the earls, barons, and other great men (caeteri magnates)
were to meet at London three weeks after Easter, with horses and arms,
for the purpose of sailing into Gascony, requires the sheriff to compel
all within his jurisdiction, who hold twenty pounds a year of the king
in chief, or of those in ward of the king, to appear at the same time
and place. And that besides those mentioned he shall cause to come
before the king's council at Westminster, on the fifteenth day after
Easter, two good and discreet knights of his county, whom the men of the
county shall have chosen for this purpose, in the stead of all and each
of them, to consider, along with the knights of other counties, what aid
they will grant the king in such an emergency.[27] In the principle of
election, and in the object of the assembly, which was to grant money,
this certainly resembles a summons to parliament. There are indeed
anomalies sufficiently remarkable upon the face of the writ which
distinguish this meeting from a regular parliament. But when the scheme
of obtaining money from the commons of shires through the consent of
their representatives had once been entertained, it was easily
applicable to more formal councils of the nation.[28]
A few years later there appears another writ analogous to a summons.
During the contest between Henry III. and the confederate barons in
1261, they presumed to call a sort of parliament, summoning three
knights out of every county, secum tractaturos super communibus negotiis
regni. This we learn only by an opposite writ issued by the king,
directing the sheriff to enjoin these knights who had been convened by
the earls of Leicester and Gloucester to their meeting at St. Alban's,
that they should repair instead to the king at Windsor, and to no other
place, nobiscum super praemissis colloquium habituros.[29] It is not
absolutely certain that these knights were elected by their respective
counties. But even if they were so, this assembly has much less the
appearance of a parliament, than that in the thirty-eighth of Henry III.
At length, in the year 1265, the forty-ninth of Henry III., while he was
a captive in the hands of Simon de Montfort, writs were issued in his
name to all the sheriffs, directing them to return two knights for the
body of their county, with two citizens or burgesses for every city and
borough contained within it. This therefore is the epoch at which the
representation of the commons becomes indisputably manifest; even should
we reject altogether the more equivocal instances of it which have just
been enumerated.
[Sidenote: Whether the knights were elected by freeholders in general.]
If indeed the knights were still elected by none but the king's military
tenants, if the mode of representation was merely adopted to spare them
the inconvenience of personal attendance, the immediate innovation in
our polity was not very extensive. This is an interesting, but very
obscure, topic of inquiry. Spelman and Brady, with other writers, have
restrained the original right of election to tenants in chief, among
whom, in process of time, those holding under mesne lords, not being
readily distinguishable in the hurry of an election, contrived to slide
in, till at length their encroachments were rendered legitimate by the
statute 7 Hen. IV. c. 15, which put all suitors to the county court on
an equal footing as to the elective franchise. The argument on this side
might be plausibly urged with the following reasoning.
The spirit of a feudal monarchy, which compelled every lord to act by
the advice and assent of his immediate vassals, established no relation
between him and those who held nothing at his hands. They were included,
so far as he was concerned, in their superiors; and the feudal incidents
were due to him from the whole of his vassal's fief, whatever tenants
might possess it by subinfeudation. In England the tenants in chief
alone were called to the great councils before representation was
thought of, as is evident both by the charter of John, and by the
language of many records; nor were any others concerned in levying aids
or escuages, which were only due by virtue of their tenure. These
military tenants were become, in the reign of Henry III., far more
numerous than they had been under the Conqueror. If we include those who
held of the king ut de honore, that is, the tenants of baronies
escheated or in ward, who may probably have enjoyed the same
privileges, being subject in general to the same burdens, their number
will be greatly augmented, and form no inconsiderable portion of the
freeholders of the kingdom. After the statute commonly called Quia
emptores in the eighteenth of Edward I. they were likely to increase
much more, as every licensed alienation of any portion of a fief by a
tenant in chief would create a new freehold immediately depending upon
the crown. Many of these tenants in capite held very small fractions of
knight's fees, and were consequently not called upon to receive
knighthood. They were plain freeholders holding in chief, and the liberi
homines or libere tenentes of those writs which have been already
quoted. The common form indeed of writs to the sheriff directs the
knights to be chosen de communitate comitatus. But the word communitas,
as in boroughs, denotes only the superior part: it is not unusual to
find mention in records of communitas populi or omnes de regno, where
none are intended but the barons, or at most the tenants in chief. If we
look attentively at the earliest instance of summoning knights of shires
to parliament, that in 38 Henry III., which has been noticed above, it
will appear that they could only have been chosen by military tenants in
chief. The object of calling this parliament, if parliament it were, was
to obtain an aid from the military tenants, who, holding less than a
knight's fee, were not required to do personal service. None then,
surely, but the tenants in chief could be electors upon this occasion,
which merely respected their feudal duties. Again, to come much lower
down, we find a series of petitions in the reigns of Edward III. and
Richard II., which seem to lead us to a conclusion that only tenants in
chief were represented by the knights of shires. The writ for wages
directed the sheriff to levy them on the commons of the county, both
within franchises and without (tam intra libertates quam extra). But the
tenants of lords holding by barony endeavoured to exempt themselves from
this burthen, in which they seem to have been countenanced by the king.
This led to frequent remonstrances from the commons, who finally
procured a statute, that all lands which had been accustomed to
contribute towards the wages of members should continue to do so, even
though they should be purchased by a lord.[30] But, if these mesne
tenants had possessed equal rights of voting with tenants in chief, it
is impossible to conceive that they would have thought of claiming so
unreasonable an exemption. Yet, as it would appear harsh to make any
distinction between the rights of those who sustained an equal burthen,
we may perceive how the freeholders holding of mesne lords might on that
account obtain after the statute a participation in the privilege of
tenants in chief. And without supposing any partiality or connivance, it
is easy to comprehend that, while the nature of tenures and services was
so obscure as to give rise to continual disputes, of which the ancient
records of the King's Bench are full, no sheriff could be very accurate
in rejecting the votes of common freeholders repairing to the county
court, and undistinguishable, as must be allowed, from tenants in capite
upon other occasions, such as serving on juries, or voting on the
election of coroners. To all this it yields some corroboration, that a
neighbouring though long hostile kingdom, who borrowed much of her law
from our own, has never admitted any freeholders, except tenants in
chief of the crown, to a suffrage in county elections. These attended
the parliament of Scotland in person till 1428, when a law of James I.
permitted them to send representatives.[31]
Such is, I think, a fair statement of the arguments that might be
alleged by those who would restrain the right of election to tenants of
the crown. It may be urged on the other side that the genius of the
feudal system was never completely displayed in England; much less can
we make use of that policy to explain institutions that prevailed under
Edward I. Instead of aids and scutages levied upon the king's military
tenants, the crown found ample resources in subsidies upon moveables,
from which no class of men was exempted. But the statute that abolished
all unparliamentary taxation led, at least in theoretical principle, to
extend the elective franchise to as large a mass of the people as could
conveniently exercise it. It was even in the mouth of our kings that
what concerned all should be approved by all. Nor is the language of
all extant writs less adverse to the supposition that the right of
suffrage in county elections was limited to tenants in chief. It seems
extraordinary that such a restriction, if it existed, should never be
deducible from these instruments; that their terms should invariably be
large enough to comprise all freeholders. Yet no more is ever required
of the sheriff than to return two knights chosen by the body of the
county. For they are not only said to be returned pro communitate, but
"per communitatem," and "de assensu totius communitatis." Nor is it
satisfactory to allege, without any proof, that this word should be
restricted to the tenants in chief, contrary to what must appear to be
its obvious meaning.[32] Certainly, if these tenants of the crown had
found inferior freeholds usurping a right of suffrage, we might expect
to find it the subject of some legislative provision, or at least of
some petition and complaint. And, on the other hand, it would have been
considered as unreasonable to levy the wages due to knights of the shire
for their service in parliament on those who had no share in their
election. But it appears by writs at the very beginning of Edward II.'s
reign, that wages were levied "de communitate comitatus."[33] It will
scarcely be contended that no one was to contribute under this writ but
tenants in chief; and yet the word communitas can hardly be applied to
different persons, when it occurs in the same instrument and upon the
same matter. The series of petitions above mentioned relative to the
payment of wages rather tends to support a conclusion that all mesne
tenants had the right of suffrage, if they thought fit to exercise it,
since it was earnestly contended that they were liable to contribute
towards that expense. Nor does there appear any reason to doubt that
all freeholders, except those within particular franchises, were suitors
to the county court--an institution of no feudal nature, and in which
elections were to be made by those present. As to the meeting to which
knights of shires were summoned in 38 Henry III., it ought not to be
reckoned a parliament, but rather one of those anomalous conventions
which sometimes occurred in the unfixed state of government. It is at
least the earliest known instance of representation, and leads us to no
conclusion in respect of later times, when the commons had become an
essential part of the legislature, and their consent was required to all
public burthens.
This question, upon the whole, is certainly not free from considerable
difficulty. The legal antiquaries are divided. Prynne does not seem to
have doubted but that the knights were "elected in the full county, by
and for the whole county," without respect to the tenure of the
freeholders.[34] But Brady and Carte are of a different opinion.[35] Yet
their disposition to narrow the basis of the constitution is so strong,
that it creates a sort of prejudice against their authority. And if I
might offer an opinion on so obscure a subject, I should be much
inclined to believe that, even from the reign of Henry III., the
election of knights by all freeholders in the county-court, without
regard to tenure, was little, if at all, different from what it is at
present.[36]
[Sidenote: Progress of towns.]
The progress of towns in several continental countries, from a condition
bordering upon servitude to wealth and liberty, has more than once
attracted our attention in other parts of the present work. Their growth
in England, both from general causes and imitative policy, was very
similar and nearly coincident. Under the Anglo-Saxon line of sovereigns
we scarcely can discover in our scanty records the condition of their
inhabitants, except retrospectively from the great survey of Domesday
Book, which displays the state of England under Edward the Confessor.
Some attention to commerce had been shown by Alfred and Athelstan; and a
merchant who had made three voyages beyond sea was raised by law of the
latter monarch to the dignity of a Thane.[37] This privilege was not
perhaps often claimed; but the burgesses of towns were already a
distinct class from the ceorls or rustics, and, though hardly free
according to our estimation, seem to have laid the foundation of more
extensive immunities. It is probable, at least, that the English towns
had made full as great advances towards emancipation as those of France.
At the Conquest we find the burgesses or inhabitants of towns living
under the superiority or protection of the king, or of some other lord,
to whom they paid annual rents, and determinate dues or customs.
Sometimes they belonged to different lords, and sometimes the same
burgess paid customs to one master, while he was under the jurisdiction
of another. They frequently enjoyed special privileges as to
inheritance; and in two or three instances they seem to have possessed
common property, belonging to a sort of guild or corporation, and in
some instances, perhaps, had a municipal administration by magistrates
of their own choice.[38] Besides the regular payments, which were in
general not heavy, they were liable to tallages at the discretion of
their lords. This burthen continued for two centuries, with no
limitation, except that the barons were latterly forced to ask
permission of the king before they set a tallage on their tenants, which
was commonly done when he imposed one upon his own.[39] Still the towns
became considerably richer; for the profits of their traffic were
undiminished by competition, and the consciousness that they could not
be individually despoiled of their possessions, like the villeins of the
country around, inspired an industry and perseverance which all the
rapacity of Norman kings and barons was unable to daunt or overcome.
[Sidenote: Towns let in fee-farm.]
One of the earliest and most important changes in the condition of the
burgesses was the conversion of their individual tributes into a
perpetual rent from the whole borough. The town was then said to be
affirmed, or let in fee-farm, to the burgesses and their successors for
ever.[40] Previously to such a grant the lord held the town in his
demesne, and was the legal proprietor of the soil and tenements; though
I by no means apprehend that the burgesses were destitute of a certain
estate in their possessions. But of a town in fee-farm he only kept the
superiority and the inheritance of the annual rent, which he might
recover by distress.[41] The burgesses held their lands by
burgage-tenure, nearly analogous to, or rather a species of, free
socage.[42] Perhaps before the grant they might correspond to modern
copyholders. It is of some importance to observe that the lord, by such
a grant of the town in fee-farm, whatever we may think of its previous
condition, divested himself of his property, or lucrative dominion over
the soil, in return for the perpetual rent; so that tallages
subsequently set at his own discretion upon the inhabitants, however
common, can hardly be considered as a just exercise of the rights of
proprietorship.
[Sidenote: Charters of incorporation.]
Under such a system of arbitrary taxation, however, it was evident to
the most selfish tyrant that the wealth of his burgesses was his wealth,
and their prosperity his interest; much more were liberal and sagacious
monarchs, like Henry II., inclined to encourage them by privileges. From
the time of William Rufus there was no reign in which charters were not
granted to different towns of exemption from tolls on rivers and at
markets, those lighter manacles of feudal tyranny; or of commercial
franchises; or of immunity from the ordinary jurisdictions; or, lastly,
of internal self-regulation. Thus the original charter of Henry I. to
the city of London[43] concedes to the citizens, in addition to valuable
commercial and fiscal immunities, the right of choosing their own
sheriff and justice, to the exclusion of every foreign jurisdiction.[44]
These grants, however, were not in general so extensive till the reign
of John.[45] Before that time the interior arrangement of towns had
received a new organization. In the Saxon period we find voluntary
associations, sometimes religious, sometimes secular; in some cases for
mutual defence against injury, in others for mutual relief in poverty.
These were called guilds, from the Saxon verb _gildan_, to pay or
contribute, and exhibited the natural, if not the legal, character of
corporations.[46] At the time of the Conquest, as has been mentioned
above, such voluntary incorporations of the burgesses possessed in some
towns either landed property of their own, or rights of superiority over
that of others. An internal elective government seems to have been
required for the administration of a common revenue, and of other
business incident to their association.[47] They became more numerous
and more peculiarly commercial after that era, as well from the increase
of trade as through imitation of similar fraternities existing in many
towns of France. The spirit of monopoly gave strength to those
institutions, each class of traders forming itself into a body, in order
to exclude competition. Thus were established the companies in corporate
towns, that of the Weavers in London being perhaps the earliest;[48] and
these were successively consolidated and sanctioned by charters from
the crown. In towns not large enough to admit of distinct companies, one
merchant guild comprehended the traders in general, or the chief of
them; and this, from the reign of Henry II. downwards, became the
subject of incorporating charters. The management of their internal
concerns, previously to any incorporation, fell naturally enough into a
sort of oligarchy, which the tenor of the charter generally preserved.
Though the immunities might be very extensive, the powers were more or
less restrained to a small number. Except in a few places, the right of
choosing magistrates was first given by king John; and certainly must
rather be ascribed to his poverty than to any enlarged policy, of which
he was utterly incapable.[49]
[Sidenote: Prosperity of English towns.]
[Sidenote: London.]
From the middle of the twelfth century to that of the thirteenth the
traders of England became more and more prosperous. The towns on the
southern coast exported tin and other metals in exchange for the wines
of France; those on the eastern sent corn to Norway--the Cinque Ports
bartered wool against the stuffs of Flanders.[50] Though bearing no
comparison with the cities of Italy or the Empire, they increased
sufficiently to acquire importance at home. That vigorous prerogative of
the Norman monarchs, which kept down the feudal aristocracy, compensated
for whatever inferiority there might be in the population and defensible
strength of the English towns, compared with those on the continent.
They had to fear no petty oppressors, no local hostility; and if they
could satisfy the rapacity of the crown, were secure from all other
grievances. London, far above the rest, our ancient and noble capital,
might, even in those early times, be justly termed a member of the
political system. This great city, so admirably situated, was rich and
populous long before the Conquest. Bede, at the beginning of the eighth
century, speaks of London as a great market, which traders frequented by
land and sea.[51] It paid 15,000_l._ out of 82,000_l._, raised by Canute
upon the kingdom.[52] If we believe Roger Hoveden, the citizens of
London, on the death of Ethelred II., joined with part of the nobility
in raising Edmund Ironside to the throne.[53] Harold I., according to
better authority, the Saxon Chronicle and William of Malmsbury, was
elected by their concurrence.[54] Descending to later history, we find
them active in the civil war of Stephen and Matilda. The famous bishop
of Winchester tells the Londoners that they are almost accounted as
noblemen on account of the greatness of their city; into the community
of which it appears that some barons had been received.[55] Indeed, the
citizens themselves, or at least the principal of them, were called
barons. It was certainly by far the greatest city in England. There have
been different estimates of its population, some of which are
extravagant; but I think it could hardly have contained less than thirty
or forty thousand souls within its walls; and the suburbs were very
populous.[56] These numbers, the enjoyment of privileges, and the
consciousness of strength, infused a free and even a mutinous spirit
into their conduct.[57] The Londoners were always on the barons' side in
their contests with the crown. They bore a part in deposing William
Longchamp, the chancellor and justiciary of Richard I.[58] They were
distinguished in the great struggle for Magna Charta; the privileges of
their city are expressly confirmed in it; and the mayor of London was
one of the twenty-five barons to whom the maintenance of its provisions
was delegated. In the subsequent reign the citizens of London were
regarded with much dislike and jealousy by the court, and sometimes
suffered pretty severely at its hands, especially after the battle of
Evesham.[59]
Notwithstanding the influence of London in these seasons of disturbance,
we do not perceive that it was distinguished from the most insignificant
town by greater participation in national councils. Rich, powerful,
honourable, and high-spirited as its citizens had become, it was very
long before they found a regular place in parliament. The prerogative of
imposing tallages at pleasure, unsparingly exercised by Henry III. even
over London,[60] left the crown no inducement to summon the inhabitants
of cities and boroughs. As these indeed were daily growing more
considerable, they were certain, in a monarchy so limited as that of
England became in the thirteenth century, of attaining, sooner or later,
this eminent privilege. Although therefore the object of Simon de
Montfort in calling them to his parliament after the battle of Lewes was
merely to strengthen his own faction, which prevailed among the
commonalty, yet, their permanent admission into the legislature may be
ascribed to a more general cause. For otherwise it is not easy to see
why the innovation of an usurper should have been drawn into precedent,
though it might perhaps accelerate what the course of affairs was
gradually preparing.
[Sidenote: First summoning of towns to parliament, in 49 H. III.]
It is well known that the earliest writs of summons to cities and
boroughs, of which we can prove the existence, are those of Simon de
Montfort, earl of Leicester, bearing date 12th of December, 1264, in the
forty-ninth year of Henry III.[61] After a long controversy almost all
judicious inquirers seem to have acquiesced in admitting this origin of
popular representation.[62] The argument may be very concisely stated.
We find from innumerable records that the king imposed tallages upon his
demesne towns at discretion.[63] No public instrument previous to the
forty-ninth of Henry III. names the citizens and burgesses as
constituent parts of parliament; though prelates, barons, knights, and
sometimes freeholders, are enumerated;[64] while, since the undoubted
admission of the commons, they are almost invariably mentioned. No
historian speaks of representatives appearing for the people, or uses
the word citizen or burgess in describing those present in parliament.
Such convincing, though negative, evidence is not to be invalidated by
some general and ambiguous phrases, whether in writs and records or in
historians.[65] Those monkish annalists are poor authorities upon any
point where their language is to be delicately measured. But it is
hardly possible that, writing circumstantially, as Roger de Hoveden and
Matthew Paris sometimes did, concerning proceedings in parliament, they
could have failed to mention the commons in unequivocal expressions, if
any representatives from that order had actually formed a part of the
assembly.
[Sidenote: Authorities in favour of an earlier date. St. Albans.]
Two authorities, however, which had been supposed to prove a greater
antiquity than we have assigned to the representation of the commons,
are deserving of particular consideration; the cases of St. Albans and
Barnstaple. The burgesses of St. Albans complained to the council in the
eighth year of Edward II., that, although they held of the king in
capite, and ought to attend his parliaments whenever they are summoned,
by two of their number, instead of all other services, as had been their
custom in all past times, which services the said burgesses and their
predecessors had performed as well in the time of the late king Edward
and his ancestors as in that of the present king until the parliament
now sitting, the names of their deputies having been constantly enrolled
in chancery, yet the sheriff of Hertfordshire, at the instigation of the
abbot of St. Albans, had neglected to cause an election and return to be
made; and prayed remedy. To this petition it was answered, "Let the
rolls of chancery be examined, that it may appear whether the said
burgesses were accustomed to come to parliament, or not, in the time of
the king's ancestors; and let right be done to them, vocatis evocandis,
si necesse fuerit." I do not translate these words, concerning the sense
of which there has been some dispute, though not, apparently, very
material to the principal subject.[66]
This is, in my opinion, by far the most plausible testimony for the
early representation of boroughs. The burgesses of St. Albans claim a
prescriptive right from the usage of all past times, and more especially
those of the late Edward and his ancestors. Could this be alleged, it
has been said, of a privilege at the utmost of fifty years' standing,
once granted by an usurper, in the days of the late king's father, and
afterwards discontinued till about twenty years before the date of their
petition, according to those who refer the regular appearance of the
commons in parliament to the twenty-third of Edward I.? Brady, who
obviously felt the strength of this authority, has shown little of his
usual ardour and acuteness in repelling it. It was observed, however, by
Madox, that the petition of St. Albans contains two very singular
allegations: it asserts that the town was part of the king's demesne,
whereas it had invariably belonged to the adjoining abbey; and that its
burgesses held by the tenure of attending parliament, instead of all
other services, contrary to all analogy, and without parallel in the
condition of any tenant in capite throughout the kingdom. "It is no
wonder, therefore," says Hume, "that a petition which advances two
falsehoods should contain one historical mistake, which indeed amounts
only to an inaccurate expression." But it must be confessed that we
cannot so easily set aside the whole authority of this record. For
whatever assurance the people of St. Albans might show in asserting what
was untrue, the king's council must have been aware how recently the
deputies of any towns had been admitted into parliament. If the lawful
birth of the House of Commons were in 1295, as is maintained by Brady
and his disciples, is it conceivable that, in 1315, the council would
have received a petition, claiming the elective franchise by
prescription, and have referred to the rolls of chancery to inquire
whether this had been used in the days of the king's progenitors? I
confess that I see no answer which can easily be given to this objection
by such as adopt the _latest_ epoch of borough representation, namely,
the parliament of 23 E. I. But they are by no means equally conclusive
against the supposition that the communities of cities and towns, having
been first introduced into the legislature during Leicester's
usurpation, in the forty-ninth year of Henry III., were summoned, not
perhaps uniformly, but without any long intermission, to succeeding
parliaments. There is a strong presumption, from the language of a
contemporary historian, that they sat in the parliament of 1269, four
years after that convened by Leicester.[67] It is more unequivocally
stated by another annalist that they were present in the first
parliament of Edward I. held in 1271.[68] Nor does a similar inference
want some degree of support from the preambles of the statute of
Marlebridge in 51 H. III., of Westminster I. in the third, and of
Gloucester in the sixth, year of Edward I.[69] And the writs are extant
which summon every city, borough, and market town to send two deputies
to a council in the eleventh year of his reign. I call this a council,
for it undoubtedly was not a parliament. The sheriffs were directed to
summon personally all who held more than twenty pounds a year of the
crown, as well as four knights for each county invested with full powers
to act for the commons thereof. The knights and burgesses thus chosen,
as well as the clergy within the province of Canterbury, met at
Northampton; those within the province of York, at that city. And
neither assembly was opened by the king.[70] This anomalous convention
was nevertheless one means of establishing the representative system,
and, to an inquirer free from technical prejudice, is little less
important than a regular parliament. Nor have we long to look even for
this. In the same year, about eight months after the councils at
Northampton and York, writs were issued summoning to a parliament at
Shrewsbury two citizens from London, and as many from each of twenty
other considerable towns.[71] It is a slight cavil to object that these
were not directed as usual to the sheriff of each county, but to the
magistrates of each place. Though a very imperfect, this was a regular
and unequivocal representation of the commons in parliament. But their
attendance seems to have intermitted from this time to the twenty-third
year of Edward's reign.[72]
[Sidenote: Barnstaple.]
Those to whom the petition of St. Albans is not satisfactory will hardly
yield their conviction to that of Barnstaple. This town set forth in the
eighteenth of Edward III. that, among other franchises granted to them
by a charter of Athelstan, they had ever since exercised the right of
sending two burgesses to parliament. The said charter, indeed, was
unfortunately mislaid; and the prayer of their petition was to obtain
one of the like import in its stead. Barnstaple, it must be observed,
was a town belonging to Lord Audley, and had actually returned members
ever since the twenty-third of Edward I. Upon an inquisition directed by
the king to be made into the truth of these allegations, it was found
that "the burgesses of the said town were wont to send two burgesses to
parliament for the commonalty of the borough;" but nothing appeared as
to the pretended charter of Athelstan, or the liberties which it was
alleged to contain. The burgesses, dissatisfied with this inquest,
prevailed that another should be taken, which certainly answered better
their wishes. The second jury found that Barnstaple was a free borough
from time immemorial; that the burgesses had enjoyed under a charter of
Athelstan, which had been casually lost, certain franchises by them
enumerated, and particularly that they should send two burgesses to
parliament; and that it would not be to the king's prejudice if he
should grant them a fresh charter in terms equally ample with that of
his predecessor Athelstan. But the following year we have another writ
and another inquest; the former reciting that the second return had been
unduly and fraudulently made; and the latter expressly contradicting the
previous inquest in many points, and especially finding no proof of
Athelstan's supposed charter. Comparing the various parts of this
business, we shall probably be induced to agree with Willis, that it was
but an attempt of the inhabitants of Barnstaple to withdraw themselves
from the jurisdiction of their lord. For the right of returning
burgesses, though it is the main point of our inquiries, was by no means
the most prominent part of their petition, which rather went to
establish some civil privileges of devising their tenements and electing
their own mayor. The first and fairest return finds only that they were
accustomed to send members to parliament, which an usage of fifty years
(from 23 E. I. to 18 E. III.) was fully sufficient to establish, without
searching into more remote antiquity.[73]
It has, however, probably occurred to the reader of these two cases, St.
Albans and Barnstaple, that the representation of the commons in
parliament was not treated as a novelty, even in times little posterior
to those in which we have been supposing it to have originated. In this
consists, I think, the sole strength of the opposite argument. An act in
the fifth year of Richard II. declares that, if any sheriff shall leave
out of his returns any cities or boroughs which be bound and of old
times were wont to come to the parliament, he shall be punished as was
accustomed to be done in the like case in time past.[74] In the
memorable assertion of legislative right by the commons in the second of
Henry V. (which will be quoted hereafter) they affirm that "the commune
of the land is, _and ever has been_, a member of parliament."[75] And
the consenting suffrage of our older law-books must be placed in the
same scale. The first gainsayers, I think, were Camden and Sir Henry
Spelman, who, upon probing the antiquities of our constitution somewhat
more exactly than their predecessors, declared that they could find no
signs of the commons in parliament till the forty-ninth of Henry III.
Prynne, some years afterwards, with much vigour and learning, maintained
the same argument, and Brady completed the victory. But the current
doctrine of Westminster Hall, and still more of the two chambers of
parliament, was certainly much against these antiquaries; and it passed
at one time for a surrender of popular principles, and almost a breach
of privilege, to dispute the lineal descent of the House of Commons from
the witenagemot.[76]
The true ground of these pretensions to antiquity was a very
well-founded persuasion that no other argument would be so conclusive to
ordinary minds, or cut short so effectually all encroachments of the
prerogative. The populace of every country, but none so much as the
English, easily grasp the notion of right, meaning thereby something
positive and definite; while the maxims of expediency or theoretical
reasoning pass slightly over their minds. Happy indeed for England that
it is so! But we have here to do with the fact alone. And it may be
observed that several pious frauds were practised to exalt the antiquity
of our constitutional liberties. These began, perhaps, very early, when
the imaginary laws of Edward the Confessor were so earnestly demanded.
They were carried further under Edward I. and his successor, when the
fable of privileges granted by the Conqueror to the men of Kent was
devised; when Andrew Horn filled his Mirrour of Justices with fictitious
tales of Alfred; and, above all, when the "Method of holding parliaments
in the time of Ethelred" was fabricated, about the end of Richard II.'s
reign; an imposture which was not too gross to deceive Sir Edward
Coke.[77]
[Sidenote: Causes of summoning deputies from boroughs.]
There is no great difficulty in answering the question why the deputies
of boroughs were finally and permanently ingrafted upon parliament by
Edward I.[78] The government was becoming constantly more attentive to
the wealth that commerce brought into the kingdom, and the towns were
becoming more flourishing and more independent. But chiefly there was a
much stronger spirit of general liberty and a greater discontent at
violent acts of prerogative from the era of Magna Charta; after which
authentic recognition of free principles many acts which had seemed
before but the regular exercise of authority were looked upon as
infringements of the subject's right. Among these the custom of setting
tallages at discretion would naturally appear the most intolerable; and
men were unwilling to remember that the burgesses who paid them were
indebted for the rest of their possessions to the bounty of the crown.
In Edward I.'s reign, even before the great act of Confirmation of the
Charters had rendered arbitrary impositions absolutely unconstitutional,
they might perhaps excite louder murmurs than a discreet administration
would risk. Though the necessities of the king, therefore, and his
imperious temper often led him to this course,[79] it was a more
prudent counsel to try the willingness of his people before he forced
their reluctance. And the success of his innovation rendered it worth
repetition. Whether it were from the complacency of the commons at being
thus admitted among the peers of the realm, or from a persuasion that
the king would take their money if they refused it, or from inability to
withstand the plausible reasons of his ministers, or from the private
influence to which the leaders of every popular assembly have been
accessible, much more was granted in subsidies after the representation
of the towns commenced than had ever been extorted in tallages.
To grant money was, therefore, the main object of their meeting; and if
the exigencies of the administration could have been relieved without
subsidies, the citizens and burgesses might still have sat at home and
obeyed the laws which a council of prelates and barons enacted for their
government. But it is a difficult question whether the king and the
peers designed to make room for them, as it were, in legislation; and
whether the power of the purse drew after it immediately, of only by
degrees, those indispensable rights of consenting to laws which they now
possess. There are no sufficient means of solving this doubt during the
reign of Edward I. The writ in 22 E. I. directs two knights to be chosen
cum plena potestate pro se et tota communitate comitatus praedicti ad
consulendum et consentiendum pro se et communitate illa, his quae
comites, barones, et proceres praedicti concorditer ordinaverint in
praemissis. That of the next year runs, ad faciendum tunc quod de communi
consilio ordinabitur in praemissis. The same words are inserted in the
writ of 26 E. I. In that of 28 E. I. the knights are directed to be sent
cum plena potestate audiendi et faciendi quae ibidem ordinari contigerint
pro communi commodo. Several others of the same reign have the words ad
faciendum. The difficulty is to pronounce whether this term is to be
interpreted in the sense of _performing_ or of _enacting_; whether the
representatives of the commons were merely to learn from the lords what
was to be done, or to bear their part in advising upon it. The earliest
writ, that of 22 E. I., certainly implies the latter; and I do not know
that any of the rest are conclusive to the contrary. In the reign of
Edward II. the words ad consentiendum alone, or ad faciendum et
consentiendum, begin; and from that of Edward III. this form has been
constantly used.[80] It must still, however, be highly questionable
whether the commons, who had so recently taken their place in
parliament, gave anything more than a constructive assent to the laws
enacted during this reign. They are not even named in the preamble of
any statute till the last year of Edward I. Upon more than one occasion
the sheriffs were directed to return the same members who had sat in the
last parliament, unless prevented by death or infirmity.[81]
[Sidenote: At what time parliament was divided into two houses.]
It has been a very prevailing opinion that parliament was not divided
into two houses at the first admission of the commons. If by this is
only meant that the commons did not occupy a separate chamber till some
time in the reign of Edward III., the proposition, true or false, will
be of little importance. They may have sat at the bottom of Westminster
Hall, while the lords occupied the upper end. But that they were ever
intermingled in voting appears inconsistent with likelihood and
authority. The usual object of calling a parliament was to impose taxes;
and these for many years after the introduction of the commons were laid
in different proportions upon the three estates of the realm. Thus in
the 23 E. I. the earls, barons, and knights gave the king an eleventh,
the clergy a tenth; while he obtained a seventh from the citizens and
burgesses; in the twenty-fourth of the same king the two former of these
orders gave a twelfth, the last an eighth; in the thirty-third year a
thirtieth was the grant of the barons and knights and of the clergy, a
twentieth of the cities and towns; in the first of Edward II. the
counties paid a twentieth, the towns a fifteenth; in the sixth of Edward
III. the rates were a fifteenth and a tenth.[82] These distinct grants
imply distinct grantors; for it is not to be imagined that the commons
intermeddled in those affecting the lords, or the lords in those of the
commons. In fact, however, there is abundant proof of their separate
existence long before the seventeenth of Edward III., which is the epoch
assigned by Carte,[83] or even the sixth of that king, which has been
chosen by some other writers. Thus the commons sat at Acton Burnell in
the eleventh of Edward I., while the upper house was at Shrewsbury. In
the eighth of Edward II. "the commons of England complain to the king
and his council, &c."[84] These must surely have been the commons
assembled in parliament, for who else could thus have entitled
themselves? In the nineteenth of the same king we find several
petitions, evidently proceeding from the body of the commons in
parliament, and complaining of public grievances.[85] The roll of 1 E.
III., though mutilated, is conclusive to show that separate petitions
were then presented by the commons, according to the regular usage of
subsequent times.[86] And indeed the preamble of 1 E. III., stat. 2, is
apparently capable of no other inference.
As the knights of shires correspond to the lower nobility of other
feudal countries, we have less cause to be surprised that they belonged
originally to the same branch of parliament as the barons, than at their
subsequent intermixture with men so inferior in station as the citizens
and burgesses. It is by no means easy to define the point of time when
this distribution was settled; but I think it may be inferred from the
rolls of parliament that the houses were divided as they are at present
in the eighth, ninth, and nineteenth years of Edward II.[87] This
appears, however, beyond doubt in the first of Edward III.[88] Yet in
the sixth of the same prince, though the knights and burgesses are
expressly mentioned to have consulted together, the former taxed
themselves in a smaller rate of subsidy than the latter.[89]
The proper business of the House of Commons was to petition for redress
of grievances, as much as to provide for the necessities of the crown.
In the prudent fiction of English law no wrong is supposed to proceed
from the source of right. The throne is fixed upon a pinnacle, which
perpetual beams of truth and justice irradiate, though corruption and
partiality may occupy the middle region and cast their chill shade upon
all below. In his high court of parliament a king of England was to
learn where injustice had been unpunished and where right had been
delayed. The common courts of law, if they were sufficiently honest,
were not sufficiently strong, to redress the subject's injuries where
the officers of the crown or the nobles interfered. To parliament he
looked as the great remedial court for relief of private as well as
public grievances. For this cause it was ordained in the fifth of Edward
II. that the king should hold a parliament once, or if necessary, twice
every year; "that the pleas which have been thus delayed, and those
where the justices have differed, may be brought to a close."[90] And a
short act of 4 Edward III., which was not very strictly regarded,
provides that a parliament shall be held "every year, or oftener, if
need be."[91] By what persons, and under what limitations, this
jurisdiction in parliament was exercised will come under our future
consideration.
[Sidenote: Edward II. Petitions of parliament during his reign.]
The efficacy of a king's personal character in so imperfect a state of
government was never more strongly exemplified than in the two first
Edwards. The father, a little before his death, had humbled his boldest
opponents among the nobility; and as for the commons, so far from
claiming a right of remonstrating, we have seen cause to doubt whether
they were accounted effectual members of the legislature for any
purposes but taxation. But in the very second year of the son's reign
they granted the twenty-fifth penny of their goods, "upon this
condition, that the king should take advice and grant redress upon
certain articles wherein they are aggrieved." These were answered at the
ensuing parliament, and are entered with the king's respective promises
of redress upon the roll. It will be worth while to extract part of this
record, that we may see what were the complaints of the commons of
England, and their notions of right, in 1309. I have chosen on this as
on other occasions to translate very literally, at the expense of some
stiffness, and perhaps obscurity, in language.
"The good people of the kingdom who are come hither to parliament pray
our lord the king that he will, if it please him, have regard to his
poor subjects, who are much aggrieved by reason that they are not
governed as they should be, especially as to the articles of the Great
Charter; and for this, if it please him, they pray remedy. Besides
which, they pray their lord the king to hear what has long aggrieved his
people, and still does so from day to day, on the part of those who call
themselves his officers, and to amend it, if he pleases." The articles,
eleven in number, are to the following purport:--1. That the king's
purveyors seize great quantities of victuals without payment; 2. That
new customs are set on wine, cloth, and other imports; 3. That the
current coin is not so good as formerly;[92] 4, 5. That the steward and
marshal enlarge their jurisdiction beyond measure, to the oppression of
the people; 6. That the commons find none to receive petitions addressed
to the council; 7. That the collectors of the king's dues (pernours des
prises) in towns and at fairs take more than is lawful; 8. That men are
delayed in their civil suits by writs of protection; 9. That felons
escape punishment by procuring charters of pardon; 10. That the
constables of the king's castles take cognizance of common pleas; 11.
That the king's escheators oust men of lands held by good title, under
pretence of an inquest of office.[93]
These articles display in a short compass the nature of those grievances
which existed under almost all the princes of the Plantagenet dynasty,
and are spread over the rolls of parliament for more than a century
after this time. Edward gave the amplest assurances of putting an end to
them all, except in one instance, the augmented customs on imports, to
which he answered, rather evasively, that he would take them off till he
should perceive whether himself and his people derived advantage from so
doing, and act thereupon as he should be advised. Accordingly, the next
year, he issued writs to collect these new customs again. But the Lords
Ordainers superseded the writs, having entirely abrogated all illegal
impositions.[94] It does not appear, however, that, regard had to the
times, there was anything very tyrannical in Edward's government. He set
tallages sometimes, like his father, on his demesne towns, without
assent of parliament.[95] In the nineteenth year of his reign the
commons show that, "whereas we and our ancestors have given many
tallages to the king's ancestors to obtain the charter of the forest,
which charter we have had confirmed by the present king, paying him
largely on our part; yet the king's officers of the forest seize on
lands, and destroy ditches, and oppress the people, for which they pray
remedy, for the sake of God and his father's soul." They complain at the
same time of arbitrary imprisonment, against the law of the land.[96] To
both these petitions the king returned a promise of redress; and they
complete the catalogue of customary grievances in this period of our
constitution.
During the reign of Edward II. the rolls of parliament are imperfect,
and we have not much assistance from other sources. The assent of the
commons, which frequently is not specified in the statutes of this
age,[97] appears in a remarkable and revolutionary proceeding, the
appointment of the Lords Ordainers in 1312.[98] In this case it
indicates that the aristocratic party then combined against the crown
were desirous of conciliating popularity. An historian relates that some
of the commons were consulted upon the ordinances to be made for the
reformation of government.[99]
[Sidenote: Edward III. The commons establish several rights.]
During the long and prosperous reign of Edward III. the efforts of
parliament in behalf of their country were rewarded with success in
establishing upon a firm footing three essential principles of our
government--the illegality of raising money without consent; the
necessity that the two houses should concur for any alterations in the
law; and, lastly, the right of the commons to inquire into public
abuses, and to impeach public counsellors. By exhibiting proofs of each
of these from parliamentary records I shall be able to substantiate the
progressive improvement of our free constitution, which was principally
consolidated during the reigns of Edward III. and his two next
successors. Brady, indeed, Carte, and the authors of the Parliamentary
History, have trod already over this ground; but none of the three can
be considered as familiar to the generality of readers, and I may at
least take credit for a sincerer love of liberty than any of their
writings display.
[Sidenote: Remonstrances against levying money without consent.]
In the sixth year of Edward III. a parliament was called to provide for
the emergency of an Irish rebellion, wherein, "because the king could
not send troops and money to Ireland without the aid of his people, the
prelates, earls, barons, and other great men, and the knights of
shires, and all the commons, of their free will, for the said purpose,
and also in order that the king might live of his own, and not vex his
people by excessive prises, nor in other manner, grant to him the
fifteenth penny, to levy of the commons,[100] and the tenth from the
cities, towns, and royal demesnes. And the king, at the request of the
same, in ease of his people, grants that the commissions lately made to
certain persons assigned to set tallages on cities, towns, and demesnes
throughout England shall be immediately repealed; and that in time to
come he will not set such tallage, except as it has been done in the
time of his ancestors, and as he may reasonably do."[101]
These concluding words are of dangerous implication; and certainly it
was not the intention of Edward, inferior to none of his predecessors in
the love of power, to divest himself of that eminent prerogative, which,
however illegally since the Confirmatio Chartarum, had been exercised by
them all. But the parliament took no notice of this reservation, and
continued with unshaken perseverance to insist on this incontestable and
fundamental right, which he was prone enough to violate.
In the thirteenth year of this reign the lords gave their answer to
commissioners sent to open the parliament, and to treat with them on the
king's part, in a sealed roll. This contained a grant of the tenth
sheaf, fleece, and lamb. But before they gave it they took care to have
letters patent showed them, by which the commissioners had power "to
grant some graces to the great and small of the kingdom." "And the said
lords," the roll proceeds to say, "will that the imposition (maletoste)
which now again has been levied upon wool be entirely abolished, that
the old customary duty be kept, and that they may have it by charter,
and by enrolment in parliament, that such custom be never more levied,
and that this grant now made to the king, or any other made in time
past, shall not turn hereafter to their charge, nor be drawn into
precedent." The commons, who gave their answer in a separate roll,
declared that they could grant no subsidy without consulting their
constituents; and therefore begged that another parliament might be
summoned, and in the mean time they would endeavour, by using persuasion
with the people of their respective counties, to procure the grant of a
reasonable aid in the next parliament.[102] They demanded also that the
imposition on wool and lead should be taken as it used to be in former
times, "inasmuch as it is enhanced without assent of the commons, or of
the lords, as we understand; and if it be otherwise demanded, that any
one of the commons may refuse it (le puisse arester), without being
troubled on that account (saunz estre chalange.)"[103]
Wool, however, the staple export of that age, was too easy and tempting
a prey to be relinquished by a prince engaged in an impoverishing war.
Seven years afterwards, in 20 E. III., we find the commons praying that
the great subsidy of forty shillings upon the sack of wool be taken off;
and the old custom paid as heretofore was assented to and granted. The
government spoke this time in a more authoritative tone. "As to this
point," the answer runs, "the prelates and others, seeing in what need
the king stood of an aid before his passage beyond sea, to recover his
rights and defend his kingdom of England, consented, with the
concurrence of the merchants, that he should have in aid of his said
war, and in defence of his said kingdom, forty shillings of subsidy for
each sack of wool that should be exported beyond sea for two years to
come. And upon this grant divers merchants have made many advances to
our lord the king in aid of his war; for which cause this subsidy cannot
be repealed without assent of the king and his lords."[104]
It is probable that Edward's counsellors wished to establish a
distinction, long afterwards revived by those of James I., between
customs levied on merchandise at the ports and internal taxes. The
statute entitled Confirmatio Chartarum had manifestly taken away the
prerogative of imposing the latter, which, indeed, had never extended
beyond the tenants of the royal demesne. But its language was not quite
so explicit as to the former, although no reasonable doubt could be
entertained that the intention of the legislature was to abrogate every
species of imposition unauthorized by parliament. The thirtieth section
of Magna Charta had provided that foreign merchants should be free from
all tributes, except the ancient customs; and it was strange to suppose
that natives were excluded from the benefit of that enactment. Yet,
owing to the ambiguous and elliptical style so frequent in our older
laws, this was open to dispute, and could, perhaps, only be explained by
usage. Edward I., in despite of both these statutes, had set a duty of
threepence in the pound upon goods imported by merchant strangers. This
imposition was noticed as a grievance in the third year of his
successor, and repealed by the Lords Ordainers. It was revived, however,
by Edward III., and continued to be levied ever afterwards.[105]
Edward was led by the necessities of his unjust and expensive war into
another arbitrary encroachment, of which we find as many complaints as
of his pecuniary extortions. The commons pray, in the same parliament of
20 E. III., that commissions should not issue for the future out of
chancery to charge the people with providing men-at-arms, hobelers (or
light cavalry), archers, victuals, or in any other manner, without
consent of parliament. It is replied to this petition, that "it is
notorious how in many parliaments the lords and commons had promised to
aid the king in his quarrel with their bodies and goods as far as was in
their power; wherefore the said lords, seeing the necessity in which the
king stood of having aid of men-at-arms, hobelers, and archers, before
his passage to recover his rights beyond sea, and to defend his realm of
England, ordained that such as had five pounds a year, or more, in land
on this side of Trent should furnish men-at-arms, hobelers, and archers,
according to the proportion of the land they held, to attend the king at
his cost; and some who would neither go themselves nor find others in
their stead were willing to give the king wherewithal he might provide
himself with some in their place. And thus the thing has been done, and
no otherwise. And the king wills that henceforth what has been thus done
in this necessity be not drawn into consequence or example."[106]
The commons were not abashed by these arbitrary pretensions; they knew
that by incessant remonstrances they should gain at least one essential
point, that of preventing the crown from claiming these usurpations as
uncontested prerogatives. The roll of parliament in the next two years,
the 21st and 22nd of Edw. III., is full of the same complaints on one
side, and the same allegations of necessity on the other.[107] In the
latter year the commons grant a subsidy, on condition that no illegal
levying of money should take place, with several other remedial
provisions; "and that these conditions should be entered on the roll of
parliament, as a matter of record, by which they may have remedy, if
anything should be attempted to the contrary in time to come." From this
year the complaints of extortion become rather less frequent; and soon
afterwards a statute was passed, "That no man shall be constrained to
find men-at-arms, hobelers, nor archers, other than those which hold by
such services, if it be not by common assent and grant made in
parliament."[108] Yet, even in the last year of Edward's reign, when the
boundaries of prerogative and the rights of parliament were better
ascertained, the king lays a sort of claim to impose charges upon his
subjects in cases of great necessity, and for the defence of his
kingdom.[109] But this more humble language indicates a change in the
spirit of government, which, after long fretting impatiently at the
curb, began at length to acknowledge the controlling hand of law.
These are the chief instances of a struggle between the crown and
commons as to arbitrary taxation; but there are two remarkable
proceedings in the 45th and 46th of Edward, which, though they would not
have been endured in later times, are rather anomalies arising out of
the unsettled state of the constitution and the recency of parliamentary
rights than mere encroachments of the prerogative. In the former year
parliament had granted a subsidy of fifty thousand pounds, to be
collected by an assessment of twenty-two shillings and threepence upon
every parish, on a presumption that the parishes in England amounted to
forty-five thousand, whereas they were hardly a fifth of that number.
This amazing mistake was not discovered till the parliament had been
dissolved. Upon its detection the king summoned a great council,
consisting of one knight, citizen, and burgess, named by himself out of
two that had been returned to the last parliament.[110] To this assembly
the chancellor set forth the deficiency of the last subsidy, and proved
by the certificates of all the bishops in England how strangely the
parliament had miscalculated the number of parishes; whereupon they
increased the parochial assessment, by their own authority, to one
hundred and sixteen shillings.[111] It is obvious that the main
intention of parliament was carried into effect by this irregularity,
which seems to have been the subject of no complaint. In the next
parliament a still more objectionable measure was resorted to; after the
petitions of the commons had been answered, and the knights dismissed,
the citizens and burgesses were convened before the prince of Wales and
the lords in a room near the white chamber, and solicited to renew their
subsidy of forty shillings upon the tun of wine, and sixpence in the
pound upon other imports, for safe convoy of shipping, during one year
more, to which they assented, "and so departed."[112]
[Sidenote: The concurrence of both houses in legislation necessary.]
The second constitutional principle established in the reign of Edward
III. was that the king and two houses of parliament, in conjunction,
possessed exclusively the right of legislation. Laws were now declared
to be made by the king at the request of the commons, and by the assent
of the lords and prelates. Such at least was the general form, though
for many subsequent ages there was no invariable regularity in this
respect. The commons, who till this reign were rarely mentioned, were
now as rarely omitted in the enacting clause. In fact, it is evident
from the rolls of parliament that statutes were almost always founded
upon their petition.[113] These petitions, with the respective answers
made to them in the king's name, were drawn up after the end of the
session in the form of laws, and entered upon the statute-roll. But here
it must be remarked that the petitions were often extremely qualified
and altered by the answer, insomuch that many statutes of this and some
later reigns by no means express the true sense of the commons.
Sometimes they contented themselves with showing their grievance, and
praying remedy from the king and his council. Of this one eminent
instance is the great statute of treasons. In the petition whereon this
act is founded it is merely prayed that, "whereas the king's justices in
different counties adjudge persons indicted before them to be traitors
for sundry matters not known by the commons to be treason, it would
please the king by his council, and by the great and wise men of the
land, to declare what are treasons in this present parliament." The
answer to this petition contains the existing statute, as a declaration
on the king's part.[114] But there is no appearance that it received
the direct assent of the lower house. In the next reigns we shall find
more remarkable instances of assuming a consent which was never
positively given.
[Sidenote: Statutes distinguished from ordinances.]
The statute of treasons, however, was supposed to be declaratory of the
ancient law: in permanent and material innovations a more direct
concurrence of all the estates was probably required. A new statute, to
be perpetually incorporated with the law of England, was regarded as no
light matter. It was a very common answer to a petition of the commons,
in the early part of this reign, that it could not be granted without
making a new law. After the parliament of 14 E. III. a certain number of
prelates, barons, and counsellors, with twelve knights and six
burgesses, were appointed to sit from day to day in order to turn such
petitions and answers as were fit to be perpetual into a statute; but
for such as were of a temporary nature the king issued his letters
patent.[115] This reluctance to innovate without necessity, and to swell
the number of laws which all were bound to know and obey with an
accumulation of transitory enactments, led apparently to the distinction
between statutes and ordinances. The latter are indeed defined by some
lawyers to be regulations proceeding from the king and lords without
concurrence of the commons. But if this be applicable to some
ordinances, it is certain that the word, even when opposed to statute,
with which it is often synonymous, sometimes denotes an act of the whole
legislature. In the 37th of Edward III., when divers sumptuary
regulations against excess of apparel were made in full parliament, "it
was demanded of the lords and commons, inasmuch as the matter of their
petitions was novel and unheard of before, whether they would have them
granted by way of ordinance or of statute. They answered that it would
be best to have them by way of ordinance and not of statute, in order
that anything which should need amendment might be amended at the next
parliament."[116] So much scruple did they entertain about tampering
with the statute law of the land.
Ordinances which, if it were not for their partial or temporary
operation, could not well be distinguished from laws,[117] were often
established in great councils. These assemblies, which frequently
occurred in Edward's reign, were hardly distinguishable, except in name,
from parliaments; being constituted not only of those who were regularly
summoned to the house of lords, but of deputies from counties, cities,
and boroughs. Several places that never returned burgesses to parliament
have sent deputies to some of these councils.[118] The most remarkable
of these was that held in the 27th of Edward III., consisting of one
knight for each county, and of two citizens or burgesses from every city
or borough wherein the ordinances of the staple were established.[119]
These were previously agreed upon by the king and lords, and copies
given, one to the knights, another to the burgesses. The roll tells us
that they gave their opinion in writing to the council, after much
deliberation, and that this was read and discussed by the great men.
These ordinances fix the staple of wool in particular places within
England, prohibit English merchants from exporting that article under
pain of death, inflict sundry other penalties, create jurisdictions, and
in short have the effect of a new and important law. After they were
passed the deputies of the commons granted a subsidy for three years,
complained of grievances, and received answers, as if in a regular
parliament. But they were aware that these proceedings partook of some
irregularity, and endeavoured, as was their constant method, to keep up
the legal forms of the constitution. In the last petition of this
council the commons pray, "because many articles touching the state of
the king and common profit of his kingdom have been agreed by him, the
prelates, lords, and commons of his land, at this council, that the said
articles may be recited at the next parliament, and entered upon the
roll; for this cause, that ordinances and agreements made in council
are not of record, as if they had been made in a general parliament."
This accordingly was done at the ensuing parliament, when these
ordinances were expressly confirmed, and directed to be "holden for a
statute to endure always."[120]
It must be confessed that the distinction between ordinances and
statutes is very obscure, and perhaps no precise and uniform principle
can be laid down about it. But it sufficiently appears that whatever
provisions altered the common law or any former statute, and were
entered upon the statute-roll, transmitted to the sheriffs, and
promulgated to the people as general obligatory enactments, were holden
to require the positive assent of both houses of parliament, duly and
formally summoned.
Before we leave this subject it will be proper to take notice of a
remarkable stretch of prerogative, which, if drawn into precedent, would
have effectually subverted this principle of parliamentary consent in
legislation. In the 15th of Edward III. petitions were presented of a
bolder and more innovating cast than was acceptable to the court:--That
no peer should be put to answer for any trespass except before his
peers; that commissioners should be assigned to examine the accounts of
such as had received public moneys; that the judges and ministers should
be sworn to observe the Great Charter and other laws; and that they
should be appointed in parliament. The last of these was probably the
most obnoxious; but the king, unwilling to defer a supply which was
granted merely upon condition that these petitions should prevail,
suffered them to pass into a statute with an alteration which did not
take off much from their efficacy--namely, that these officers should
indeed be appointed by the king with the advice of his council, but
should surrender their charges at the next parliament, and be there
responsible to any who should have cause of complaint against them. The
chancellor, treasurer, and judges entered their protestation that they
had not assented to the said statutes, nor could they observe them, in
case they should prove contrary to the laws and customs of the kingdom,
which they were sworn to maintain.[121] This is the first instance of a
protest on the roll of parliament against the passing of an act.
Nevertheless they were compelled to swear on the cross of Canterbury to
its observance.[122]
This excellent statute was attempted too early for complete success.
Edward's ministers plainly saw that it left them at the mercy of future
parliaments, who would readily learn the wholesome and constitutional
principle of sparing the sovereign while they punished his advisers.
They had recourse therefore to a violent measure, but which was likely
in those times to be endured. By a proclamation addressed to all the
sheriffs the king revokes and annuls the statute, as contrary to the
laws and customs of England and to his own just rights and prerogatives,
which he had sworn to preserve; declaring that he had never consented to
its passing, but, having previously protested that he would revoke it,
lest the parliament should have been separated in wrath, had dissembled,
as was his duty, and permitted the great seal to be affixed; and that it
appeared to the earls, barons, and other learned persons of his kingdom
with whom he had consulted, that, as the said statute had not proceeded
from his own good will, it was null, and could not have the name or
force of law.[123] This revocation of a statute, as the price of which a
subsidy had been granted, was a gross infringement of law, and
undoubtedly passed for such at that time; for the right was already
clear, though the remedy was not always attainable. Two years afterwards
Edward met his parliament, when that obnoxious statute was formally
repealed.[124]
[Sidenote: Advice of parliament required on matters of war and peace.]
Notwithstanding the king's unwillingness to permit this control of
parliament over his administration, he suffered, or rather solicited,
their interference in matters which have since been reckoned the
exclusive province of the crown. This was an unfair trick of his policy.
He was desirous, in order to prevent any murmuring about subsidies, to
throw the war upon parliament as their own act, though none could have
been commenced more selfishly for his own benefit, or less for the
advantage of the people of England. It is called "the war which our lord
the king has undertaken against his adversary of France by common assent
of all the lords and commons of his realm in divers parliaments."[125]
And he several times referred it to them to advise upon the subject of
peace. But the commons showed their humility or discretion by treating
this as an invitation which it would show good manners to decline,
though in the eighteenth of the king's reign they had joined with the
lords in imploring the king to make an end of the war by a battle or by
a suitable peace.[126] "Most dreaded lord," they say upon one occasion,
"as to your war, and the equipment necessary for it, we are so ignorant
and simple that we know not how, nor have the power, to devise;
wherefore we pray your grace to excuse us in this matter, and that it
please you, with advice of the great and wise persons of your council,
to ordain what seems best to you for the honour and profit of yourself
and your kingdom; and whatever shall be thus ordained by assent and
agreement for you and your lords we readily assent to, and will hold it
firmly established."[127] At another time, after their petitions had
been answered, "it was shewed to the lords and commons by Bartholomew de
Burghersh, the king's chamberlain, how a treaty had been set on foot
between the king and his adversary of France; and how he had good hope
of a final and agreeable issue with God's help; to which he would not
come without assent of the lords and commons. Wherefore the said
chamberlain inquired on the king's part of the said lords and commons
whether they would assent and agree to the peace, in case it might be
had by treaty between the parties. To which the said commons with one
voice replied, that whatever end it should please the king and lords to
make of the treaty would be agreeable to them. On which answer the
chamberlain said to the commons, Then you will assent to a perpetual
treaty of peace if it can be had. And the said commons answered at once
and unanimously, Yes, yes."[128] The lords were not so diffident. Their
great station as hereditary councillors gave them weight in all
deliberations of government; and they seem to have pretended to a
negative voice in the question of peace. At least they answer, upon the
proposals made by David king of Scots in 1368, which were submitted to
them in parliament, that, "saving to the said David and his heirs the
articles contained therein, they saw no way of making a treaty which
would not openly turn to the disherison of the king and his heirs, to
which they would on no account assent; and so departed for that
day."[129] A few years before they had made a similar answer to some
other propositions from Scotland.[130] It is not improbable that, in
both these cases, they acted with the concurrence and at the instigation
of the king; but the precedents, might have been remembered in other
circumstances.
[Sidenote: Right of the commons to inquire into public abuses.]
A third important acquisition of the house of commons during this reign
was the establishment of their right to investigate and chastise the
abuses of administration. In the fourteenth of Edward III. a committee
of the lords' house had been appointed to examine the accounts of
persons responsible for the receipt of the last subsidy; but it does not
appear that the commons were concerned in this.[131] The unfortunate
statute of the next year contained a similar provision, which was
annulled with the rest. Many years elapsed before the commons tried the
force of their vindictive arm. We must pass onward an entire generation
of man, and look at the parliament assembled in the fiftieth of Edward
III. Nothing memorable as to the interference of the commons in
government occurs before, unless it be their request, in the forty-fifth
of the king, that no clergyman should be made chancellor, treasurer, or
other great officer; to which the king answered that he would do what
best pleased his council.[132]
[Sidenote: Parliament of 50 E. III.]
It will be remembered by every one who has read our history that in the
latter years of Edward's life his fame was tarnished by the ascendancy
of the duke of Lancaster and Alice Perrers. The former, a man of more
ambition than his capacity seems to have warranted, even incurred the
suspicion of meditating to set aside the heir of the crown when the
Black Prince should have sunk into the grave. Whether he were wronged or
not by these conjectures, they certainly appear to have operated on
those most concerned to take alarm at them. A parliament met in April,
1376, wherein the general unpopularity of the king's administration, or
the influence of the prince of Wales, led to very remarkable
consequences.[133] After granting a subsidy, the commons, "considering
the evils of the country, through so many wars and other causes, and
that the officers now in the king's service are insufficient without
further assistance for so great a charge, pray that the council be
strengthened by the addition of ten or twelve bishops, lords, and
others, to be constantly at hand, so that no business of weight should
be despatched without the consent of all; nor smaller matters without
that of four or six."[134] The king pretended to come with alacrity into
this measure, which was followed by a strict restraint on them and all
other officers from taking presents in the course of their duty. After
this, "the said commons appeared in parliament, protesting that they had
the same good will as ever to assist the king with their lives and
fortunes; but that it seemed to them, if their said liege lord had
always possessed about him faithful counsellors and good officers, he
would have been so rich that he would have had no need of charging his
commons with subsidy or tallage, considering the great ransoms of the
French and Scotch kings, and of so many other prisoners; and that it
appeared to be for the private advantage of some near the king, and of
others by their collusion, that the king and kingdom are so
impoverished, and the commons so ruined. And they promised the king
that, if he would do speedy justice on such as should be found guilty,
and take from them what law and reason permit, with what had been
already granted in parliament, they will engage that he should be rich
enough to maintain his wars for a long time, without much charging his
people in any manner." They next proceeded to allege three particular
grievances; the removal of the staple from Calais, where it had been
fixed by parliament, through the procurement and advice of the said
private counsellors about the king; the participation of the same
persons in lending money to the king at exorbitant usury; and their
purchasing at a low rate, for their own benefit, old debts from the
crown, the whole of which they had afterwards induced the king to repay
to themselves. For these and for many more misdemeanours the commons
accused and impeached the lords Latimer and Nevil, with four merchants,
Lyons, Ellis, Peachey, and Bury.[135] Latimer had been chamberlain, and
Nevil held another office. The former was the friend and creature of the
duke of Lancaster. Nor was this parliament at all nice in touching a
point where kings least endure their interference. An ordinance was
made, that, "whereas many women prosecute the suits of others in courts
of justice by way of maintenance, and to get profit thereby, which is
displeasing to the king, he forbids any woman henceforward, and
especially Alice Perrers, to do so, on pain of the said Alice forfeiting
all her goods, and suffering banishment from the kingdom."[136]
The part which the prince of Wales, who had ever been distinguished for
his respectful demeanour towards Edward, bore in this unprecedented
opposition, is strong evidence of the jealousy with which he regarded
the duke of Lancaster; and it was led in the house of commons by Peter
de la Mare, a servant of the earl of March, who, by his marriage with
Philippa, heiress of Lionel duke of Clarence, stood next after the young
prince Richard in lineal succession to the crown. The proceedings of
this session were indeed highly popular. But no house of commons would
have gone such lengths on the mere support of popular opinion, unless
instigated and encouraged by higher authority. Without this their
petitions might perhaps have obtained, for the sake of subsidy, an
immediate consent; but those who took the lead in preparing them must
have remained unsheltered after a dissolution, to abide the vengeance of
the crown, with no assurance that another parliament would espouse their
cause as its own. Such, indeed, was their fate in the present instance.
Soon after the dissolution of parliament, the prince of Wales, who, long
sinking by fatal decay, had rallied his expiring energies for this
domestic combat, left his inheritance to a child ten years old, Richard
of Bordeaux. Immediately after this event Lancaster recovered his
influence; and the former favourites returned to court. Peter de la Mare
was confined at Nottingham, where he remained two years. The citizens
indeed attempted an insurrection, and threatened to burn the Savoy,
Lancaster's residence, if de la Mare was not released; but the bishop of
London succeeded in appeasing them.[137] A parliament met next year
which overthrew the work of its predecessor, restored those who had been
impeached, and repealed the ordinance against Alice Perrers.[138] So
little security will popular assemblies ever afford against arbitrary
power, when deprived of regular leaders and the consciousness of mutual
fidelity.
The policy adopted by the prince of Wales and earl of March, in
employing the house of commons as an engine of attack against an
obnoxious ministry, was perfectly novel, and indicates a sensible change
in the character of our constitution. In the reign of Edward II.
parliament had little share in resisting the government; much more was
effected by the barons through risings of their feudal tenantry. Fifty
years of authority better respected, of law better enforced, had
rendered these more perilous, and of a more violent appearance than
formerly. A surer resource presented itself in the increased weight of
the lower house in parliament. And this indirect aristocratical
influence gave a surprising impulse to that assembly, and particularly
tended to establish beyond question its control over public abuses. It
is no less just to remark that it also tended to preserve the relation
and harmony between each part and the other, and to prevent that jarring
of emulation and jealousy which, though generally found in the division
of power between a noble and a popular estate, has scarcely ever caused
a dissension, except in cases of little moment, between our two houses
of parliament.
[Sidenote: Richard II. Great increase of the power of the commons.]
The commons had sustained with equal firmness and discretion a defensive
war against arbitrary power under Edward III.: they advanced with very
different steps towards his successor. Upon the king's death, though
Richard's coronation took place without delay, and no proper regency was
constituted, yet a council of twelve, whom the great officers of state
were to obey, supplied its place to every effectual intent. Among these
the duke of Lancaster was not numbered; and he retired from court in
some disgust. In the first parliament of the young king a large
proportion of the knights who had sat in that which impeached the
Lancastrian party were returned.[139] Peter de la Mare, now released
from prison, was elected speaker; a dignity which, according to some, he
had filled in the Good Parliament, as that of the fiftieth of Edward
III. was popularly styled; though the rolls do not mention either him or
any other as bearing that honourable name before Sir Thomas Hungerford
in the parliament of the following year.[140] The prosecution against
Alice Perrers was now revived; not, as far as appears, by direct
impeachment of the commons; but articles were exhibited against her in
the house of lords on the king's part, for breaking the ordinance made
against her intermeddling at court: upon which she received judgment of
banishment and forfeiture.[141] At the request of the lower house, the
lords, in the king's name, appointed nine persons of different
ranks--three bishops, two earls, two bannerets, and two bachelors--to
be a permanent council about the king, so that no business of importance
should be transacted without their unanimous consent. The king was even
compelled to consent that, during his minority, the chancellor,
treasurer, judges, and other chief officers, should be made in
parliament; by which provision, combined with that of the parliamentary
council, the whole executive government was transferred to the two
houses. A petition that none might be employed in the king's service,
nor belong to his council, who had been formerly accused upon good
grounds, struck at lord Latimer, who had retained some degree of power
in the new establishment. Another, suggesting that Gascony, Ireland,
Artois, and the Scottish marches were in danger of being lost for want
of good officers, though it was so generally worded as to leave the
means of remedy to the king's pleasure, yet shows a growing energy and
self-confidence in that assembly which not many years before had thought
the question of peace or war too high for their deliberation. Their
subsidy was sufficiently liberal; but they took care to pray the king
that fit persons might be assigned for its receipt and disbursement,
lest it should any way be diverted from the purposes of the war.
Accordingly Walworth and Philpot, two eminent citizens of London, were
appointed to this office, and sworn in parliament to its execution.[142]
But whether through the wastefulness of government, or rather because
Edward's legacy, the French war, like a ruinous and interminable
lawsuit, exhausted all public contributions, there was an equally
craving demand for subsidy at the next meeting of parliament. The
commons now made a more serious stand. The speaker, Sir James Pickering,
after the protestation against giving offence which has since become
more matter of form than, perhaps, it was then considered, reminded the
lords of the council of a promise made to the last parliament, that, if
they would help the king for once with a large subsidy, so as to enable
him to undertake an expedition against the enemy, he trusted not to call
on them again, but to support the war from his own revenues; in faith
of which promise there had been granted the largest sum that any king of
England had ever been suffered to levy within so short a time, to the
utmost loss and inconvenience of the commons, part of which ought still
to remain in the treasury, and render it unnecessary to burthen anew the
exhausted people. To this Scrope, lord steward of the household,
protesting that he knew not of any such promise, made answer by order of
the king, that, "saving the honour and reverence of our lord the king,
and the lords there present, the commons did not speak truth in
asserting that part of the last subsidy should be still in the treasury;
it being notorious that every penny had gone into the hands of Walworth
and Philpot, appointed and sworn treasurers in the last parliament, to
receive and expend it upon the purposes of the war, for which they had
in effect disbursed the whole." Not satisfied with this general
justification, the commons pressed for an account of the expenditure.
Scrope was again commissioned to answer, that, "though it had never been
seen that of a subsidy or other grant made to the king in parliament or
out of parliament by the commons any account had afterwards been
rendered to the commons, or to any other except the king and his
officers, yet the king, to gratify them, of his own accord, without
doing it by way of right, would have Walworth along with certain persons
of the council exhibit to them in writing a clear account of the receipt
and expenditure, upon condition that this should never be used as a
precedent, nor inferred to be done otherwise than by the king's
spontaneous command." The commons were again urged to provide for the
public defence, being their own concern as much as that of the king. But
they merely shifted their ground and had recourse to other pretences.
They requested that five or six peers might come to them, in order to
discuss this question of subsidy. The lords entirely rejected this
proposal, and affirmed that such a proceeding had never been known
except in the three last parliaments; but allowed that it had been the
course to elect a committee of eight or ten from each house, to confer
easily and without noise together. The commons acceded to this, and a
committee of conference was appointed, though no result of their
discussion appears upon the roll.
Upon examining the accounts submitted to them, these sturdy commoners
raised a new objection. It appeared that large sums had been expended
upon garrisons in France and Ireland and other places beyond the
kingdom, of which they protested themselves not liable to bear the
charge. It was answered that Gascony and the king's other dominions
beyond sea were the outworks of England, nor could the people ever be
secure from war at their thresholds, unless these were maintained. They
lastly insisted that the king ought to be rich through the wealth that
had devolved on him from his grandfather. But this was affirmed, in
reply, to be merely sufficient for the payment of Edward's creditors.
Thus driven from all their arguments, the commons finally consented to a
moderate additional imposition upon the export of wool and leather,
which were already subject to considerable duties, apologizing on
account of their poverty for the slenderness of their grant.[143]
The necessities of government, however, let their cause be what it
might, were by no means feigned; and a new parliament was assembled
about seven months after the last, wherein the king, without waiting for
a petition, informed the commons that the treasurers were ready to
exhibit their accounts before them. This was a signal victory after the
reluctant and ungracious concession made to the last parliament. Nine
persons of different ranks were appointed at the request of the commons
to investigate the state of the revenue and the disposition which had
been made of the late king's personal estate. They ended by granting a
poll-tax, which they pretended to think adequate to the supply
required.[144] But in those times no one possessed any statistical
knowledge, and every calculation which required it was subject to
enormous error, of which we have already seen an eminent example.[145]
In the next parliament (3 Ric. II.) it was set forth that only
22,000_l._ had been collected by the poll-tax, while the pay of the
king's troops hired for the expedition to Britany, the pretext of the
grant, had amounted for but half a year to 50,000_l._ The king, in
short, was more straitened than ever. His distresses gave no small
advantage to the commons. Their speaker was instructed to declare that,
as it appeared to them, if the affairs of their liege lord had been
properly conducted at home and abroad, he could not have wanted aid of
his commons, who now are poorer than before. They pray that, as the king
was so much advanced in age and discretion, his perpetual council
(appointed in his first parliament) might be discharged of their
labours, and that, instead of them, the five chief officers of state, to
wit, the chancellor, treasurer, keeper of the privy seal, chamberlain,
and steward of the household, might be named in parliament, and declared
to the commons, as the king's sole counsellors, not removable before the
next parliament. They required also a general commission to be made out,
similar to that in the last session, giving powers to a certain number
of peers and other distinguished persons to inquire into the state of
the household, as well as into all receipts and expenses since the
king's accession. The former petition seems to have been passed
over;[146] but a commission as requested was made out to three prelates,
three earls, three bannerets, three knights, and three citizens.[147]
After guarding thus, as they conceived, against malversation, but in
effect rather protecting their posterity than themselves, the commons
prolonged the last imposition on wool and leather for another year.
It would be but repetition to make extracts from the rolls of the two
next years; we have still the same tale--demand of subsidy on one side,
remonstrance and endeavours at reformation on the other. After the
tremendous insurrection of the villeins in 1382 a parliament was
convened to advise about repealing the charters of general manumission,
extorted from the king by the pressure of circumstances. In this measure
all concurred; but the commons were not afraid to say that the late
risings had been provoked by the burthens which a prodigal court had
called for in the preceding session. Their language is unusually bold.
"It seemed to them, after full deliberation," they said, "that, unless
the administration of the kingdom were speedily reformed, the kingdom
itself would be utterly lost and ruined for ever, and therein their lord
the king, with all the peers and commons, which God forbid. For true it
is that there are such defects in the said administration, as well about
the king's person and his household as in his courts of justice; and by
grievous oppressions in the country through maintainers of suits, who
are, as it were, kings in the country, that right and law are come to
nothing, and the poor commons are from time to time so pillaged and
ruined; partly by the king's purveyors of the household, and others who
pay nothing for what they take, partly by the subsidies and tallages
raised upon them, and besides by the oppressive behaviour of the
servants of the king and other lords, and especially of the aforesaid
maintainers of suits, that they are reduced to greater poverty and
discomfort than ever they were before. And moreover, though great sums
have been continually granted by and levied upon them, for the defence
of the kingdom, yet they are not the better defended against their
enemies, but every year are plundered and wasted by sea and land,
without any relief. Which calamities the said poor commons, who lately
used to live in honour and prosperity, can no longer endure. And to
speak the real truth, these injuries lately done to the poorer commons,
more than they ever suffered before, caused them to rise and to commit
the mischief done in their late riot; and there is still cause to fear
greater evils, if sufficient remedy be not timely provided against the
outrages and oppressions aforesaid. Wherefore may it please our lord the
king, and the noble peers of the realm now assembled in this parliament,
to provide such remedy and amendment as to the said administration, that
the state and dignity of the king in the first place, and of the lords,
may be preserved, as the commons have always desired, and the commons
may be put in peace; removing, as soon as they can be detected, evil
ministers and counsellors, and putting in their stead the best and most
sufficient, and taking away all the bad practices which have led to the
last rising, or else none can imagine that this kingdom can longer
subsist without greater misfortunes than it ever endured. And for God's
sake let it not be forgotten that there be put about the king, and of
his council, the best lords and knights that can be found in the
kingdom.
"And be it known (the entry proceeds) that, after the king our lord with
the peers of the realm and his council had taken advice upon these
requests made to him for his good and his kingdom's as it really
appeared to him, willed and granted that certain bishops, lords, and
others should be appointed to survey and examine in privy council both
the government of the king's person and of his household, and to suggest
proper remedies wherever necessary, and report them to the king. And it
was said by the peers in parliament, that, as it seemed to them, if
reform of government were to take place throughout the kingdom, it
should begin by the chief member, which is the king himself, and so from
person to person, as well churchmen as others, and place to place, from
higher to lower, without sparing any degree."[148] A considerable number
of commissioners were accordingly appointed, whether by the king alone,
or in parliament, does not appear; the latter, however, is more
probable. They seem to have made some progress in the work of
reformation, for we find that the officers of the household were sworn
to observe their regulations. But in all likelihood these were soon
neglected.
It is not wonderful that, with such feelings of resentment towards the
crown, the commons were backward in granting subsidies. Perhaps the king
would not have obtained one at all if he had not withheld his charter of
pardon for all offences committed during the insurrection. This was
absolutely necessary to restore quiet among the people; and though the
members of the commons had certainly not been insurgents, yet inevitable
irregularities had occurred in quelling the tumults, which would have
put them too much in the power of those unworthy men who filled the
benches of justice under Richard. The king declared that it was unusual
to grant a pardon without a subsidy; the commons still answered that
they would consider about that matter; and the king instantly rejoined
that he would consider about his pardon (s'aviseroit de sa dite grace)
till they had done what they ought. They renewed, at length the usual
tax on wool and leather.[149]
This extraordinary assumption of power by the commons was not merely
owing to the king's poverty. It was encouraged by the natural feebleness
of a disunited government. The high rank and ambitious spirit of
Lancaster gave him no little influence, though contending with many
enemies at court as well as the ill-will of the people. Thomas of
Woodstock, the king's youngest uncle, more able and turbulent than
Lancaster, became, as he grew older, an eager competitor for power,
which he sought through the channel of popularity. The earls of March,
Arundel, and Warwick bore a considerable part, and were the favourites
of parliament. Even Lancaster, after a few years, seems to have fallen
into popular courses, and recovered some share of public esteem. He was
at the head of the reforming commission in the fifth of Richard II.,
though he had been studiously excluded from those preceding. We cannot
hope to disentangle the intrigues of this remote age, as to which our
records are of no service, and the chroniclers are very slightly
informed. So far as we may conjecture, Lancaster, finding his station
insecure at court, began to solicit the favour of the commons, whose
hatred of the administration abated their former hostility towards
him.[150]
[Sidenote: Character of Richard.]
The character of Richard II. was now developing itself, and the hopes
excited by his remarkable presence of mind in confronting the rioters on
Blackheath were rapidly destroyed. Not that he was wanting in capacity,
as has been sometimes imagined. For if we measure intellectual power by
the greatest exertion it ever displays, rather than by its average
results, Richard II. was a man of considerable talents. He possessed,
along with much dissimulation, a decisive promptitude in seizing the
critical moment for action. Of this quality, besides his celebrated
behaviour towards the insurgents, he gave striking evidence in several
circumstances which we shall have shortly to notice. But his ordinary
conduct belied the abilities which on these rare occasions shone forth,
and rendered them ineffectual for his security. Extreme pride and
violence, with an inordinate partiality for the most worthless
favourites, were his predominant characteristics. In the latter quality,
and in the events of his reign, he forms a pretty exact parallel to
Edward II. Scrope, lord chancellor, who had been appointed in
parliament, and was understood to be irremovable without its
concurrence, lost the great seal for refusing to set it to some prodigal
grants. Upon a slight quarrel with archbishop Courtney the king ordered
his temporalities to be seized, the execution of which, Michael de la
Pole, his new chancellor, and a favourite of his own, could hardly
prevent. This was accompanied with indecent and outrageous expressions
of anger, unworthy of his station and of those whom he insulted.[151]
[Sidenote: He acquires more power on his majority.]
Though no king could be less respectable than Richard, yet the
constitution invested a sovereign with such ample prerogative, that it
was far less easy to resist his personal exercise of power than the
unsettled councils of a minority. In the parliament 6 R. II., sess. 2,
the commons pray certain lords, whom they name, to be assigned as their
advisers. This had been permitted in the two last sessions without
exception.[152] But the king, in granting their request, reserved his
right of naming any others.[153] Though the commons did not relax in
their importunities for the redress of general grievances, they did not
venture to intermeddle as before with the conduct of administration.
They did not even object to the grant of the marquisate of Dublin, with
almost a princely dominion over Ireland; which enormous donation was
confirmed by act of parliament to Vere, a favourite of the king.[154] A
petition that the officers of state should annually visit and inquire
into his household was answered that the king would do what he
pleased.[155] Yet this was little in comparison of their former
proceedings.
[Sidenote: Proceedings of parliament in the tenth of Richard.]
There is nothing, however, more deceitful to a monarch, unsupported by
an armed force, and destitute of wary advisers, than this submission of
his people. A single effort was enough to overturn his government.
Parliament met in the tenth year of his reign, steadily determined to
reform the administration, and especially to punish its chief leader,
Michael de la Pole, earl of Suffolk and lord chancellor. According to
the remarkable narration of a contemporary historian,[156] too
circumstantial to be rejected, but rendered somewhat doubtful by the
silence of all other writers and of the parliamentary roll, the king was
loitering at his palace at Eltham when he received a message from the
two houses, requesting the dismissal of Suffolk, since they had matter
to allege against him that they could not move while he kept the office
of chancellor. Richard, with his usual intemperance, answered that he
would not for their request remove the meanest scullion from his
kitchen. They returned a positive refusal to proceed on any public
business until the king should appear personally in parliament and
displace the chancellor. The king required forty knights to be deputed
from the rest to inform him clearly of their wishes. But the commons
declined a proposal in which they feared, or affected to fear, some
treachery. At length the duke of Gloucester and Arundel bishop of Ely
were commissioned to speak the sense of parliament; and they delivered
it, if we may still believe what we read, in very extraordinary
language, asserting that there was an ancient statute, according to
which, if the king absented himself from parliament without just cause
during forty days, which he had now exceeded, every man might return
without permission to his own country; and, moreover, there was another
statute, and (as they might more truly say) a precedent of no remote
date, that if a king, by bad counsel, or his own folly and obstinacy,
alienated himself from his people, and would not govern according to
the laws of the land and the advice of the peers, but madly and wantonly
followed his own single will, it should be lawful for them, with the
common assent of the people, to expel him from his throne, and elevate
to it some near kinsman of the royal blood. By this discourse the king
was induced to meet his parliament, where Suffolk was removed from his
office, and the impeachment against him commenced.[157]
[Sidenote: Impeachment of Suffolk.]
The charges against this minister, without being wholly frivolous, were
not so weighty as the clamour of the commons might have led us to
expect. Besides forfeiting all his grants from the crown, he was
committed to prison, there to remain till he should have paid such fine
as the king might impose; a sentence that would have been outrageously
severe in many cases, though little more than nugatory in the
present.[158]
[Sidenote: Commission of reform.]
This was the second precedent of that grand constitutional resource,
parliamentary impeachment: and more remarkable from the eminence of the
person attacked than that of lord Latimer in the fiftieth year of Edward
III.[159] The commons were content to waive the prosecution of any other
ministers; but they rather chose a scheme of reforming the
administration, which should avert both the necessity of punishment and
the malversations that provoked it. They petitioned the king to ordain
in parliament certain chief officers of his household and other lords of
his council, with power to reform those abuses, by which his crown was
so much blemished that the laws were not kept and his revenues were
dilapidated, confirming by a statute a commission for a year, and
forbidding, under heavy penalties, any one from opposing, in private or
openly, what they should advise.[160] With this the king complied, and a
commission founded upon the prayer of parliament was established by
statute. It comprehended fourteen persons of the highest eminence for
rank and general estimation; princes of the blood and ancient servants
of the crown, by whom its prerogatives were not likely to be
unnecessarily impaired. In fact the principle of this commission,
without looking back at the precedents in the reign of John, Henry III.,
and Edward II., which yet were not without their weight as
constitutional analogies, was merely that which the commons had
repeatedly maintained during the minority of the present king, and which
had produced the former commissions of reform in the third and fifth
years of his reign. These were upon the whole nearly the same in their
operation. It must be owned there was a more extensive sway virtually
given to the lords now appointed, by the penalties imposed on any who
should endeavour to obstruct what they might advise; the design as well
as tendency of which was no doubt to throw the whole administration into
their hands during the period of this commission.