Those who have written our history with more or less of a Tory bias

exclaim against this parliamentary commission as an unwarrantable

violation of the king's sovereignty, and even impartial men are struck

at first sight by a measure that seems to overset the natural balance of

our constitution. But it would be unfair to blame either those concerned

in this commission, some of whose names at least have been handed down

with unquestioned respect, or those high-spirited representatives of the

people whose patriot firmness has been hitherto commanding all our

sympathy and gratitude, unless we could distinctly pronounce by what

gentler means they could restrain the excesses of government. Thirteen

parliaments had already met since the accession of Richard; in all the

same remonstrances had been repeated, and the same promises renewed.

Subsidies, more frequent than in any former reign, had been granted for

the supposed exigencies of the war; but this was no longer illuminated

by those dazzling victories which give to fortune the mien of wisdom;

the coasts of England were perpetually ravaged, and her trade destroyed;

while the administration incurred the suspicion of diverting to private

uses that treasure which they so feebly and unsuccessfully applied to

the public service. No voice of his people, until it spoke in thunder,

would stop an intoxicated boy in the wasteful career of dissipation. He

loved festivals and pageants, the prevailing folly of his time, with

unusual frivolity; and his ordinary living is represented as beyond

comparison more showy and sumptuous than even that of his magnificent

and chivalrous predecessor. Acts of parliament were no adequate barriers

to his misgovernment. "Of what avail are statutes," says Walsingham,

"since the king with his privy council is wont to abolish what

parliament has just enacted?"[161] The constant prayer of the commons in

every session, that former statutes might be kept in force, is no slight

presumption that they were not secure of being regarded. It may be true

that Edward III.'s government had been full as arbitrary, though not so

unwise, as his grandson's; but this is the strongest argument that

nothing less than an extraordinary remedy could preserve the still

unstable liberties of England.

The best plea that could be made for Richard was his inexperience, and

the misguided suggestions of favourites. This, however, made it more

necessary to remove those false advisers, and to supply that

inexperience. Unquestionably the choice of ministers is reposed in the

sovereign; a trust, like every other attribute of legitimate power, for

the public good; not, what no legitimate power can ever be, the

instrument of selfishness or caprice. There is something more sacred

than the prerogative, or even than the constitution; the public weal,

for which all powers are granted, and to which they must all be

referred. For this public weal it is confessed to be sometimes necessary

to shake the possessor of the throne out of his seat; could it never be

permitted to suspend, though but indirectly and for a time, the positive

exercise of misapplied prerogatives? He has learned in a very different

school from myself, who denies to parliament at the present day a

preventive as well as vindictive control over the administration of

affairs; a right of resisting, by those means which lie within its

sphere, the appointment of unfit ministers. These means are now

indirect; they need not to be the less effectual, and they are certainly

more salutary on that account. But we must not make our notions of the

constitution in its perfect symmetry of manhood the measure of its

infantine proportions, nor expect from a parliament just struggling into

life, and "pawing to get free its hinder parts," the regularity of

definite and habitual power.

It is assumed rather too lightly by some of those historians to whom I

have alluded that these commissioners, though but appointed for a

twelvemonth, designed to retain longer, or would not in fact have

surrendered, their authority. There is certainly a danger in these

delegations of pre-eminent trust; but I think it more formidable in a

republican form than under such a government as our own. The spirit of

the people, the letter of the law, were both so decidedly monarchical,

that no glaring attempt of the commissioners to keep the helm

continually in their hands, though it had been in the king's name, would

have had a fair probability of success. And an oligarchy of fourteen

persons, different in rank and profession, even if we should impute

criminal designs to all of them, was ill calculated for permanent union.

Indeed the facility with which Richard re-assumed his full powers two

years afterwards, when misconduct had rendered his circumstances far

more unfavourable, gives the corroboration of experience to this

reasoning. By yielding to the will of his parliament and to a temporary

suspension of prerogative, this unfortunate prince might probably have

reigned long and peacefully; the contrary course of acting led

eventually to his deposition and miserable death.

[Sidenote: Answers of the judges to Richard's questions.]

Before the dissolution of parliament Richard made a verbal protestation

that nothing done therein should be in prejudice of his rights; a

reservation not unusual when any remarkable concession was made, but

which could not decently be interpreted, whatever he might mean, as a

dissent from the statute, just passed. Some months had intervened when

the king, who had already released Suffolk from prison and restored him

to his favour, procured from the judges, whom he had summoned to

Nottingham, a most convenient set of answers to questions concerning the

late proceedings in parliament. Tresilian and Belknap, chief justices of

the King's Bench and Common Pleas, with several other judges, gave it

under their seals that the late statute and commission were derogatory

to the prerogative; that all who procured it to be passed, or persuaded

or compelled the king to consent to it, were guilty of treason; that the

king's business must be proceeded upon before any other in parliament;

that he may put an end to the session at his pleasure; that his

ministers cannot be impeached without his consent; that any members of

parliament contravening the three last articles incur the penalties of

treason, and especially he who moved for the sentence of deposition

against Edward II. to be read; and that the judgment against the earl of

Suffolk might be revoked as altogether erroneous.

[Sidenote: Subsequent revolution.]

These answers, perhaps extorted by menaces, as all the judges, except

Tresilian, protested before the next parliament, were for the most part

servile and unconstitutional. The indignation which they excited, and

the measures successfully taken to withstand the king's designs, belong

to general history; but I shall pass slightly over that season of

turbulence, which afforded no legitimate precedent, to our

constitutional annals. Of the five lords appellants, as they were

called, Gloucester, Derby, Nottingham, Warwick, and Arundel, the three

former, at least, have little claim to our esteem; but in every age it

is the sophism of malignant and peevish men to traduce the cause of

freedom itself, on account of the interested motives by which its

ostensible advocates have frequently been actuated. The parliament, who

had the country thoroughly with them, acted no doubt honestly, but with

an inattention to the rules of law, culpable indeed, yet from which the

most civilized of their successors, in the heat of passion and triumph,

have scarcely been exempt. Whether all with whom they dealt severely,

some of them apparently of good previous reputation, merited such

punishment, is more than, upon uncertain evidence, a modern writer can

profess to decide.[162]

Notwithstanding the death or exile of all Richard's favourites, and the

oath taken not only by parliament, but by every class of the people, to

stand by the lords appellants, we find him, after about a year, suddenly

annihilating their pretensions, and snatching the reins again without

obstruction. The secret cause of this event is among the many

obscurities that attend the history of his reign. It was conducted with

a spirit and activity which broke out two or three times in the course

of his imprudent life; but we may conjecture that he had the advantage

of disunion among his enemies. For some years after this the king's

administration was prudent. The great seal, which he took away from

archbishop Arundel, he gave to Wykeham bishop of Winchester, another

member of the reforming commission, but a man of great moderation and

political experience. Some time after he restored the seal to Arundel,

and reinstated the duke of Gloucester in the council. The duke of

Lancaster, who had been absent during the transactions of the tenth and

eleventh years of the king, in prosecution of his Castilian war, formed

a link between the parties, and seems to have maintained some share of

public favour.

[Sidenote: Greater harmony between the king and parliament.]

There was now a more apparent harmony between the court and the

parliament. It seems to have been tacitly agreed that they should not

interfere with the king's household expenses; and they gratified him in

a point where his honour had been most wounded, declaring his

prerogative to be as high and unimpaired as that of his predecessors,

and repealing the pretended statute by virtue of which Edward II. was

said to have been deposed.[163]. They were provident enough, however, to

grant conditional subsidies, to be levied only in case of a royal

expedition against the enemy; and several were accordingly remitted by

proclamation, this condition not being fulfilled. Richard never ventured

to recall his favourites, though he testified his unabated affection for

Vere by a pompous funeral. Few complaints, unequivocally affecting the

ministry, were presented by the commons. In one parliament the

chancellor, treasurer, and counsel resigned their offices, submitting

themselves to its judgment in case any matter of accusation should be

alleged against them. The commons, after a day's deliberation, probably

to make their approbation appear more solemn, declared in full

parliament that nothing amiss had been found in the conduct of these

ministers, and that they held them to have faithfully discharged their

duties. The king reinstated them accordingly, with a protestation that

this should not be made a precedent, and that it was his right to change

his servants at pleasure.[164]

[Sidenote: Disunion among some leading peers.]

But this summer season was not to last for ever. Richard had but

dissembled with those concerned in the transactions of 1388, none of

whom he could ever forgive. These lords in lapse of time were divided

among each other. The earls of Derby and Nottingham were brought into

the king's interest. The earl of Arundel came to an open breach with the

duke of Lancaster, whose pardon he was compelled to ask for an unfounded

accusation in parliament.[165] Gloucester's ungoverned ambition, elated

by popularity, could not brook the ascendency of his brother Lancaster,

who was much less odious to the king. He had constantly urged and

defended the concession of Guienne to this prince to be held for life,

reserving only his liege homage to Richard as king of France;[166] a

grant as unpopular among the natives of that country as it was

derogatory to the crown; but Lancaster was not much indebted to his

brother for assistance which was only given in order to diminish his

influence in England. The truce with France, and the king's French

marriage, which Lancaster supported, were passionately opposed by

Gloucester. And the latter had given keener provocation by speaking

contemptuously of that misalliance with Katherine Swineford which

contaminated the blood of Plantagenet. To the parliament summoned in the

20th of Richard, one object of which was to legitimate the duke of

Lancaster's antenuptial children by this lady, neither Gloucester nor

Arundel would repair. There passed in this assembly something

remarkable, as it exhibits not only the arbitrary temper of the king, a

point by no means doubtful, but the inefficiency of the commons to

resist it without support from political confederacies of the nobility.

The circumstances are thus related in the record.

[Sidenote: Richard's prosecution of Haxey.]

During the session the king sent for the lords into parliament one

afternoon, and told them how he had heard of certain articles of

complaint made by the commons in conference with them a few days before,

some of which appeared to the king against his royalty, estate, and

liberty, and commanded the chancellor to inform him fully as to this.

The chancellor accordingly related the whole matter, which consisted of

four alleged grievances; namely, that sheriffs and escheators,

notwithstanding a statute, are continued in their offices beyond a

year;[167] that the Scottish marches were not well kept; that the

statute against wearing great men's liveries was disregarded; and,

lastly, that the excessive charges of the king's household ought to be

diminished, arising from the multitude of bishops and of ladies who are

there maintained at his cost.

Upon this information the king declared to the lords that through God's

gift he is by lineal right of inheritance king of England, and will have

the royalty and freedom of his crown, from which some of these articles

derogate. The first petition, that sheriffs should never remain in

office beyond a year, he rejected; but, passing lightly over the rest,

took most offence that the commons, who are his lieges, should take on

themselves to make any ordinance respecting his royal person or

household, or those whom he might please to have about him. He enjoined

therefore the lords to declare plainly to the commons his pleasure in

this matter; and especially directed the duke of Lancaster to make the

speaker give up the name of the person who presented a bill for this

last article in the lower house.

The commons were in no state to resist this unexpected promptitude of

action in the king. They surrendered the obnoxious bill, with its

proposer, one Thomas Haxey, and with great humility made excuse that

they never designed to give offence to his majesty, nor to interfere

with his household or attendants, knowing well that such things do not

belong to them, but to the king alone; but merely to draw his attention,

that he might act therein as should please him best. The king forgave

these pitiful suppliants; but Haxey was adjudged in parliament to suffer

death as a traitor. As, however, he was a clerk,[168] the archbishop of

Canterbury, at the head of the prelates, obtained of the king that his

life might be spared, and that they might have the custody of his

person; protesting that this was not claimed by way of right, but merely

of the king's grace.[169]

[Sidenote: Arbitrary measures of the king.]

This was an open defiance of parliament, and a declaration of arbitrary

power. For it would be impossible to contend that, after the repeated

instances of control over public expenditure by the commons since the

50th of Edward III., this principle was novel and unauthorized by the

constitution, or that the right of free speech demanded by them in every

parliament was not a real and indisputable privilege. The king, however,

was completely successful, and, having proved the feebleness of the

commons, fell next upon those he more dreaded. By a skilful piece of

treachery he seized the duke of Gloucester, and spread consternation

among all his party. A parliament was summoned, in which the only

struggle was to outdo the king's wishes, and thus to efface their former

transgressions.[170] Gloucester, who had been murdered at Calais, was

attainted after his death; Arundel was beheaded, his brother the

archbishop of Canterbury deposed and banished, Warwick and Cobham sent

beyond sea. The commission of the tenth, the proceedings in parliament

of the eleventh year of the king, were annulled. The answers of the

judges to the questions put at Nottingham, which had been punished with

death and exile, were pronounced by parliament to be just and legal. It

was declared high treason to procure the repeal of any judgment against

persons therein impeached. Their issue male were disabled from ever

sitting in parliament or holding place in council. These violent

ordinances, as if the precedent they were then overturning had not

shielded itself with the same sanction, were sworn to by parliament upon

the cross of Canterbury, and confirmed by a national oath, with the

penalty of excommunication denounced against its infringers. Of those

recorded to have bound themselves by this adjuration to Richard, far the

greater part had touched the same relics for Gloucester and Arundel ten

years before, and two years afterwards swore allegiance to Henry of

Lancaster.[171]

In the fervour of prosecution this parliament could hardly go beyond

that whose acts they were annulling; and each is alike unworthy to be

remembered in the way of precedent. But the leaders of the former,

though vindictive and turbulent, had a concern for the public interest;

and, after punishing their enemies, left the government upon its right

foundation. In this all regard for liberty was extinct; and the commons

set the dangerous precedent of granting the king a subsidy upon wool

during his life. Their remarkable act of severity was accompanied by

another, less unexampled, but, as it proved, of more ruinous tendency.

The petitions of the commons not having been answered during the

session, which they were always anxious to conclude, a commission was

granted for twelve peers and six commoners to sit after the dissolution,

and "examine, answer, and fully determine, as well all the said

petitions, and the matters therein comprised, as all other matters and

things moved in the king's presence, and all things incident thereto not

yet determined, as shall seem best to them."[172] The "other matters"

mentioned above were, I suppose, private petitions to the king's council

in parliament, which had been frequently despatched after a dissolution.

For in the statute which establishes this commission, 21 R. II. c. 16,

no powers are committed but those of examining petitions: which, if it

does not confirm the charge afterwards alleged against Richard, of

falsifying the parliament roll, must at least be considered as limiting

and explaining the terms of the latter. Such a trust had been committed

to some lords of the council eight years before, in very peaceful times;

and it was even requested that the same might be done in future

parliaments.[173] But it is obvious what a latitude this gave to a

prevailing faction. These eighteen commissioners, or some of them (for

there were who disliked the turn of affairs), usurped the full rights of

the legislature, which undoubtedly were only delegated in respect of

business already commenced.[174] They imposed a perpetual oath on

prelates and lords for all time to come, to be taken before obtaining

livery of their lands, that they would maintain the statutes and

ordinances made by this parliament, or "afterwards by the lords and

knights having power committed to them by the same." They declared it

high treason to disobey their ordinances. They annulled the patents of

the dukes of Hereford and Norfolk, and adjudged Henry Bowet, the

former's chaplain, who had advised him to petition for his inheritance,

to the penalties of treason.[175] And thus, having obtained a revenue

for life, and the power of parliament being notoriously usurped by a

knot of his creatures, the king was little likely to meet his people

again, and became as truly absolute as his ambition could require.

[Sidenote: Quarrel of the dukes of Hereford and Norfolk.]

[Sidenote: Necessity for deposing Richard II.]

It had been necessary for this purpose to subjugate the ancient

nobility. For the English constitution gave them such paramount rights

that it was impossible either to make them surrender their country's

freedom, or to destroy it without their consent. But several of the

chief men had fallen or were involved with the party of Gloucester. Two

who, having once belonged to it, had lately plunged into the depths of

infamy to ruin their former friends; were still perfectly obnoxious to

the king, who never forgave their original sin. These two, Henry of

Bolingbroke, earl of Derby, and Mowbray, earl of Nottingham, now dukes

of Hereford and Norfolk, the most powerful of the remaining nobility,

were, by a singular conjuncture, thrown, as it were, at the king's feet.

Of the political mysteries which this reign affords, none is more

inexplicable than the quarrel of these peers. In the parliament at

Shrewsbury, in 1398, Hereford was called upon by the king to relate what

had passed between the duke of Norfolk and himself in slander of his

majesty. He detailed a pretty long and not improbable conversation, in

which Norfolk had asserted the king's intention of destroying them both

for their old offence in impeaching his ministers. Norfolk had only to

deny the charge and throw his gauntlet at the accuser. It was referred

to the eighteen commissioners who sat after the dissolution, and a trial

by combat was awarded. But when this, after many delays, was about to

take place at Coventry, Richard interfered and settled the dispute by

condemning Hereford to banishment for ten years and Norfolk for life.

This strange determination, which treated both as guilty where only one

could be so, seems to admit no other solution than the king's desire to

rid himself of two peers whom he feared and hated at a blow. But it is

difficult to understand by what means he drew the crafty Bolingbroke

into his snare.[176] However this might have been, he now threw away all

appearance of moderate government. The indignities he had suffered in

the eleventh year of his reign were still at his heart, a desire to

revenge which seems to have been the mainspring of his conduct. Though a

general pardon of those proceedings had been granted, not only at the

time, but in his own last parliament, he made use of them as a pretence

to extort money from seventeen counties, to whom he imputed a share in

the rebellion. He compelled men to confess under their seals that they

had been guilty of treason, and to give blank obligations, which his

officers filled up with large sums.[177] Upon the death of the duke of

Lancaster, who had passively complied throughout all these transactions,

Richard refused livery of his inheritance to Hereford, whose exile

implied no crime, and who had letters patent enabling him to make his

attorney for that purpose during its continuance. In short, his

government for nearly two years was altogether tyrannical; and, upon the

same principles that cost James II. his throne, it was unquestionably

far more necessary, unless our fathers would have abandoned all thought

of liberty, to expel Richard II. Far be it from us to extenuate the

treachery of the Percies towards this unhappy prince, or the cruel

circumstances of his death, or in any way to extol either his successor

or the chief men of that time, most of whom were ambitious and

faithless; but after such long experience of the king's arbitrary,

dissembling, and revengeful temper, I see no other safe course, in the

actual state of the constitution, than what the nation concurred in

pursuing.

The reign of Richard II. is, in a constitutional light, the most

interesting part of our earlier history; and it has been the most

imperfectly written. Some have misrepresented the truth through

prejudice, and others through carelessness. It is only to be understood,

and, indeed, there are great difficulties in the way of understanding it

at all, by a perusal of the rolls of parliament, with some assistance

from the contemporary historians, Walsingham, Knyghton, the anonymous

biographer published by Hearne, and Froissart. These, I must remark,

except occasionally the last, are extremely hostile to Richard; and

although we are far from being bound to acquiesce in their opinions, it

is at least unwarrantable in modern writers to sprinkle their margins

with references to such authority in support of positions decidedly

opposite.[178]

[Sidenote: Circumstances attending Henry IV.'s accession.]

The revolution which elevated Henry IV. to the throne was certainly so

far accomplished by force, that the king was in captivity, and those who

might still adhere to him in no condition to support his authority. But

the sincere concurrence which most of the prelates and nobility, with

the mass of the people, gave to changes that could not have been

otherwise effected by one so unprovided with foreign support as Henry,

proves this revolution to have been, if not an indispensable, yet a

national act, and should prevent our considering the Lancastrian kings

as usurpers of the throne. Nothing indeed looks so much like usurpation

in the whole transaction as Henry's remarkable challenge of the crown,

insinuating, though not avowing, as Hume has justly animadverted upon

it, a false and ridiculous title by right line of descent, and one

equally unwarrantable by conquest. The course of proceedings is worthy

of notice. As the renunciation of Richard might well pass for the effect

of compulsion, there was a strong reason for propping up its instability

by a solemn deposition from the throne, founded upon specific charges of

misgovernment. Again, as the right of dethroning a monarch was nowhere

found in the law, it was equally requisite to support this assumption of

power by an actual abdication. But as neither one nor the other filled

up the duke of Lancaster's wishes, who was not contented with owing a

crown to election, nor seemed altogether to account for the exclusion of

the house of March, he devised this claim, which was preferred in the

vacancy of the throne, Richard's cession, having been read and approved

in parliament, and the sentence of deposition, "out of abundant caution,

and to remove all scruple," solemnly passed by seven commissioners

appointed out of the several estates. "After which challenge and claim,"

says the record, "the lords spiritual and temporal, and all the estates

there present, being asked, separately and together, what they thought

of the said challenge and claim, the said estates, with the whole

people, without any difficulty or delay, consented that the said duke

should reign over them."[179] The claim of Henry, as opposed to that of

the earl of March, was indeed ridiculous; but it is by no means evident

that, in such cases of extreme urgency as leave no security for the

common weal but the deposition of a reigning prince, there rests any

positive obligation upon the estates of the realm to fill his place with

the nearest heir. A revolution of this kind seems rather to defeat and

confound all prior titles; though in the new settlement it will commonly

be prudent, as well as equitable, to treat them with some regard. Were

this otherwise it would be hard to say why William III. reigned to the

exclusion of Anne, or even of the Pretender, who had surely committed no

offence at that time; or why (if such indeed be the true construction of

the Act of Settlement) the more distant branches of the royal stock,

descendants of Henry VII. and earlier kings, have been cut off from

their hope of succession by the restriction to the heirs of the princess

Sophia.

In this revolution of 1399 there was as remarkable an attention shown to

the formalities of the constitution, allowance made for the men and the

times, as in that of 1688. The parliament was not opened by commission;

no one took the office of president; the commons did not adjourn to

their own chamber; they chose no speaker; the name of parliament was not

taken, but that only of estates of the realm. But as it would have been

a violation of constitutional principles to assume a parliamentary

character without the king's commission, though summoned by his writ, so

it was still more essential to limit their exercise of power to the

necessity of circumstances. Upon the cession of the king, as upon his

death, the parliament was no more; its existence, as the council of the

sovereign, being dependent upon his will. The actual convention summoned

by the writs of Richard could not legally become the parliament of

Henry; and the validity of a statute declaring it to be such would

probably have been questionable in that age, when the power of statutes

to alter the original principles of the common law was by no means so

thoroughly recognised as at the Restoration and Revolution. Yet Henry

was too well pleased with his friends to part with them so readily; and

he had much to effect before the fervour of their spirits should abate.

Hence an expedient was devised of issuing writs for a new parliament,

returnable in six days. These neither were nor could be complied with;

but the same members as had deposed Richard sat in the new parliament,

which was regularly opened by Henry's commissioner as if they had been

duly elected.[180] In this contrivance, more than in all the rest, we

may trace the hand of lawyers.

[Sidenote: Retrospect of the progress of the constitution under Richard

II.]

[Sidenote: Its advances under the house of Lancaster.]

If we look back from the accession of Henry IV. to that of his

predecessor, the constitutional authority of the house of commons will

be perceived to have made surprising progress during the course of

twenty-two years. Of the three capital points in contest while Edward

reigned, that money could not be levied, or laws enacted, without the

commons' consent, and that the administration of government was subject

to their inspection and control, the first was absolutely decided in

their favour, the second was at least perfectly admitted in principle,

and the last was confirmed by frequent exercise. The commons had

acquired two additional engines of immense efficiency; one, the right of

directing the application of subsidies, and calling accountants before

them; the other, that of impeaching the king's ministers for misconduct.

All these vigorous shoots of liberty throve more and more under the

three kings of the house of Lancaster, and drew such strength and

nourishment from the generous heart of England, that in after-times, and

in a less prosperous season, though checked and obstructed in their

growth, neither the blasts of arbitrary power could break them off, nor

the mildew of servile opinion cause them to wither. I shall trace the

progress of parliament till the civil wars of York and Lancaster: 1. in

maintaining the exclusive right of taxation; 2. in directing and

checking the public expenditure; 3. in making supplies depend on the

redress of grievances; 4. in securing the people against illegal

ordinances and interpolations of the statutes; 5. in controlling the

royal administration; 6. in punishing bad ministers; and lastly, in

establishing their own immunities and privileges.

1. The pretence of levying money without consent of parliament expired

with Edward III., who had asserted it, as we have seen, in the very last

year of his reign. A great council of lords and prelates, summoned in

the second year of his successor, declared that they could advise no

remedy for the king's necessities without laying taxes on the people,

which could only be granted in parliament.[181] Nor was Richard ever

accused of illegal tallages, the frequent theme of remonstrance under

Edward, unless we may conjecture that this charge is implied in an act

(11 R. II. c. 9) which annuls all impositions on wool and leather,

without consent of parliament, _if any there be_.[182] Doubtless his

innocence in this respect was the effect of weakness; and if the

revolution of 1399 had not put an end to his newly acquired despotism,

this, like every other right of his people, would have been swept away.

A less palpable means of evading the consent of the commons was by the

extortion of loans, and harassing those who refused to pay by summonses

before the council. These loans, the frequent resource of arbitrary

sovereigns in later times, are first complained of in an early

parliament of Richard II.: and a petition is granted that no man shall

be compelled to lend the king money.[183] But how little this was

regarded we may infer from a writ directed, in 1386, to some persons in

Boston, enjoining them to assess every person who had goods and chattels

to the amount of twenty pounds, in his proportion of two hundred pounds,

which the town had promised to lend the king; and giving an assurance

that this shall be deducted from the next subsidy to be granted by

parliament. Among other extraordinary parts of this letter is a menace

of forfeiting life, limbs, and property, held out against such as should

not obey these commissioners.[184] After his triumph over the popular

party towards the end of his reign, he obtained large sums in this way.

Under the Lancastrian kings there is much less appearance of raising

money in an unparliamentary course. Henry IV. obtained an aid from a

great council in the year 1400; but they did not pretend to charge any

besides themselves; though it seems that some towns afterwards gave the

king a contribution.[185] A few years afterwards he directs the sheriffs

to call on the richest men in their counties to advance the money voted

by parliament. This, if any compulsion was threatened, is an instance of

overstrained prerogative, though consonant to the practice of the late

reign.[186] There is, however, an instance of very arbitrary conduct

with respect to a grant of money in the minority of Henry VI. A subsidy

had been granted by parliament upon goods imported under certain

restrictions in favour of the merchants, with a provision that, if these

conditions be not observed on the king's part, then the grant should be

void and of no effect.[187] But an entry is made on the roll of the next

parliament, that, "whereas some disputes have arisen about the grant of

the last subsidy, it is declared by the duke of Bedford and other lords

in parliament, with advice of the judges and others learned in the law,

that the said subsidy was at all events to be collected and levied for

the king's use; notwithstanding any conditions in the grant of the said

subsidy contained."[188] The commons, however, in making the grant of a

fresh subsidy in this parliament, renewed their former conditions, with

the addition of another, that "it ne no part thereof be beset ne

dispensed to no other use, but only in and for the defense of the said

roialme."[189]

[Sidenote: Appropriation of supplies.]

2. The right of granting supplies would have been very incomplete, had

it not been accompanied with that of directing their application. The

principle of appropriating public moneys began, as we have seen, in the

minority of Richard; and was among the best fruits of that period. It

was steadily maintained under the new dynasty. The parliament of 6 H.

IV. granted two fifteenths and two tenths, with a tax on skins and wool,

on condition that it should be expended in the defence of the kingdom,

and not otherwise, as Thomas lord Furnival and Sir John Pelham, ordained

treasurers of war for this parliament, to receive the said subsidies,

shall account and answer to the commons at the next parliament. These

treasurers were sworn in parliament to execute their trusts.[190] A

similar precaution was adopted in the next session.[191]

[Sidenote: Attempt to make supply depend on redress of grievances.]

3. The commons made a bold attempt in the second year of Henry IV. to

give the strongest security to their claims of redress, by inverting the

usual course of parliamentary proceedings. It was usual to answer their

petitions on the last day of the session, which put an end to all

further discussion upon them, and prevented their making the redress of

grievances a necessary condition of supply. They now requested that an

answer might be given before they made their grant of subsidy. This was

one of the articles which Richard II.'s judges had declared it high

treason to attempt. Henry was not inclined to make a concession which

would virtually have removed the chief impediment to the ascendency of

parliament. He first said that he would consult with the lords, and

answer according to their advice. On the last day of the session the

commons were informed that "it had never been known in the time of his

ancestors that they should have their petitions answered before they had

done all their business in parliament, whether of granting money or any

other concern; wherefore the king will not alter the good customs and

usages of ancient times."[192]

Notwithstanding the just views these parliaments appear generally to

have entertained of their power over the public purse, that of the third

of Henry V. followed a precedent from the worst times of Richard II., by

granting the king a subsidy on wool and leather during his life.[193]

This, an historian tells us, Henry IV. had vainly laboured to

obtain;[194] but the taking of Harfleur intoxicated the English with new

dreams of conquest in France, which their good sense and constitutional

jealousy were not firm enough to resist. The continued expenses of the

war, however, prevented this grant from becoming so dangerous as it

might have been in a season of tranquillity. Henry V., like his father,

convoked parliament almost in every year of his reign.

[Sidenote: Legislative rights of the commons established.]

4. It had long been out of all question that the legislature consisted

of the king, lords, and commons; or, in stricter language, that the king

could not make or repeal statutes without the consent of parliament. But

this fundamental maxim was still frequently defeated by various acts of

evasion or violence; which, though protested against as illegal, it was

a difficult task to prevent. The king sometimes exerted a power of

suspending the observance of statutes, as in the ninth of Richard II.,

when a petition that all statutes might be confirmed is granted, with

an exception as to one passed in the last parliament, forbidding the

judges to take fees, or give counsel in cases where the king was a

party; which, "because it was too severe and needs declaration, the king

would have of no effect till it should be declared in parliament."[195]

The apprehension of the dispensing prerogative and sense of its

illegality are manifested by the wary terms wherein the commons, in one

of Richard's parliaments, "assent that the king make such sufferance

respecting the statute of provisors as shall seem reasonable to him, so

that the said statute be not repealed; and, moreover, that the commons

may disagree thereto at the next parliament, and resort to the statute;"

with a protestation that this assent, which is a novelty and never done

before, shall not be drawn into precedent; praying the king that this

protestation may be entered on the roll of parliament.[196] A petition,

in one of Henry IV.'s parliaments, to limit the number of attorneys, and

forbid filazers and prothonotaries from practising, having been answered

favourably as to the first point, we find a marginal entry in the roll

that the prince and council had respited the execution of this act.[197]

[Sidenote: Dispensing power of the crown.]

The dispensing power, as exercised in favour of individuals, is quite of

a different character from this general suspension of statutes, but

indirectly weakens the sovereignty of the legislature. This power was

exerted, and even recognised, throughout all the reigns of the

Plantagenets. In the first of Henry V. the commons pray that the statute

for driving aliens out of the kingdom be executed. The king assents,

saving his prerogative and his right of dispensing with it when he

pleased. To which the commons replied that their intention was never

otherwise, nor, by God's help, ever should be. At the same time one Rees

ap Thomas petitions the king to modify or dispense with the statute

prohibiting Welchmen from purchasing lands in England, or the English

towns in Wales; which the king grants. In the same parliament the

commons pray that no grant or protection be made to any one in

contravention of the statute of provisors, saving the king's

prerogative. He merely answers, "Let the statutes be observed:" evading

any allusion to his dispensing power.[198]

It has been observed, under the reign of Edward III., that the practice

of leaving statutes to be drawn up by the judges, from the petition and

answer jointly, after a dissolution of parliament, presented an

opportunity of falsifying the intention of the legislature, whereof

advantage was often taken. Some very remarkable instances of this fraud

occurred in the succeeding reigns.

An ordinance was put upon the roll of parliament, in the fifth of

Richard II., empowering sheriffs of counties to arrest preachers of

heresy and their abettors, and detain them in prison till they should

justify themselves before the church. This was introduced into the

statutes of the year; but the assent of lords and commons is not

expressed. In the next parliament the commons, reciting this ordinance,

declare that it was never assented to or granted by them, but what had

been proposed in this matter was without their concurrence (that is, as

I conceive, had been rejected by them), and pray that this statute be

annulled; for it was never their intent to bind themselves or their

descendants to the bishops more than their ancestors had been bound in

times past. The king returned an answer, agreeing to this petition.

Nevertheless the pretended statute was untouched, and remains still

among our laws;[199] unrepealed, except by desuetude, and by inference

from the acts of much later times.

This commendable reluctance of the commons to let the clergy forge

chains for them produced, as there is much appearance, a similar

violation of their legislative rights in the next reign. The statute

against heresy in the second of Henry IV. is not grounded upon any

petition of the commons, but only upon one of the clergy. It is said to

be enacted by consent of the lords, but no notice is taken of the lower

house in the parliament roll, though the statute reciting the petition

asserts the commons to have joined in it.[200] The petition and the

statute are both in Latin, which is unusual in the laws of this time. In

a subsequent petition of the commons this act is styled "the statute

made in the second year of your majesty's reign at the request of the

prelates and clergy of your kingdom;" which affords a presumption that

it had no regular assent of parliament.[201] And the spirit of the

commons during this whole reign being remarkably hostile to the church,

it would have been hardly possible to obtain their consent to so penal a

law against heresy. Several of their petitions seem designed indirectly

to weaken its efficacy.[202]

These infringements of their most essential right were resisted by the

commons in various ways, according to the measure of their power. In the

fifth of Richard II. they request the lords to let them see a certain

ordinance before it is engrossed.[203] At another time they procured

some of their own members, as well as peers, to be present at engrossing

the roll. At length they spoke out unequivocally in a memorable

petition, which, besides its intrinsic importance, is deserving of

notice as the earliest instance in which the house of commons adopted

the English language. I shall present its venerable orthography without

change.

"Oure soverain lord, youre humble and trewe lieges that ben come for the

comune of youre lond bysechyn onto youre rizt riztwesnesse, That so as

hit hath ever be thair libte and fredom, that thar sholde no statut no

lawe be made offlasse than they yaf therto their assent; consideringe

that the comune of youre lond, the whiche that is, and ever hath be, a

membre of youre parlemente, ben as well assenters as petitioners, that

fro this tyme foreward, by compleynte of the comune of any myschief

axknyge remedie by mouthe of their speker for the comune, other ellys by

petition writen, that ther never be no lawe made theruppon, and

engrossed as statut and lawe, nother by addicions, nother by

diminucions, by no manner of terme ne termes, the whiche that sholde

chaunge the sentence, and the entente axked by the speker mouthe, or the

petitions beforesaid yeven up yn writyng by the manere forsaid, withoute

assent of the forsaid comune. Consideringe, oure soverain lord, that it

is not in no wyse the entente of youre comunes, zif yet be so that they

axke you by spekyng, or by writyng, two thynges or three, or as manye as

theym lust: But that ever it stande in the fredom of youre hie regalie,

to graunte whiche of thoo that you lust, and to werune the remanent.

"The kyng of his grace especial graunteth that fro hensforth nothyng be

enacted to the peticions of his comune that be contrarie of hir askyng,

wharby they shuld be bounde withoute their assent. Savyng alwey to our

liege lord his real prerogatif, to graunte and denye what him lust of

their petitions and askynges aforesaid."[204]

Notwithstanding the fulness of this assent to so important a petition we

find no vestige of either among the statutes, and the whole transaction

is unnoticed by those historians who have not looked into our original

records. If the compilers of the statute-roll were able to keep out of

it the very provision that was intended to check their fraudulent

machinations, it was in vain to hope for redress without altering the

established practice in this respect; and indeed, where there was no

design to falsify the roll it was impossible to draw up statutes which

should be in truth the acts of the whole legislature, so long as the

king continued to grant petitions in part, and to engraft new matter

upon them. Such was still the case till the commons hit upon an

effectual expedient for screening themselves against these

encroachments, which has lasted without alteration to the present day.

This was the introduction of complete statutes under the name of bills,

instead of the old petitions; and these containing the royal assent and

the whole form of a law, it became, though not quite immediately,[205] a

constant principle that the king must admit or reject them without

qualification. This alteration, which wrought an extraordinary effect on

the character of our constitution, was gradually introduced in Henry

VI.'s reign.[206]

From the first years of Henry V., though not, I think, earlier, the

commons began to concern themselves with the petitions of individuals to

the lords or council. The nature of the jurisdiction exercised by the

latter will be treated more fully hereafter; it is only necessary to

mention in this place that many of the requests preferred to them were

such as could not be granted without transcending the boundaries of law.

A just inquietude as to the encroachments of the king's council had long

been manifested by the commons; and finding remonstrances ineffectual,

they took measures for preventing such usurpations of legislative power

by introducing their own consent to private petitions. These were now

presented by the hands of the commons, and in very many instances

passed in the form of statutes with the express assent of all parts of

the legislature. Such was the origin of private bills, which occupy the

greater part of the rolls in Henry V. and VI.'s parliament. The commons

once made an ineffectual endeavour to have their consent to all

petitions presented to the council in parliament rendered necessary by

law; if I rightly apprehend the meaning of the roll in this place, which

seems obscure or corrupt.[207]

[Sidenote: Interference of parliament with the royal expenditure.]

5. If the strength of the commons had lain merely in the weakness of the

crown, it might be inferred that such harassing interference with the

administration of affairs as the youthful and frivolous Richard was

compelled to endure would have been sternly repelled by his experienced

successor. But, on the contrary, the spirit of Richard might have

rejoiced to see that his mortal enemy suffered as hard usage at the

hands of parliament as himself. After a few years the government of

Henry became extremely unpopular. Perhaps his dissension with the great

family of Percy, which had placed him on the throne, and was regarded

with partiality by the people,[208] chiefly contributed to this

alienation of their attachment. The commons requested, in the fifth of

his reign, that certain persons might be removed from the court; the

lords concurred in displacing four of these, one being the king's

confessor. Henry came down to parliament and excused these four persons,

as knowing no special cause why they should be removed; yet, well

understanding that what the lords and commons should ordain would be for

his and his kingdom's interest, and therefore anxious to conform himself

to their wishes, consented to the said ordinance, and charged the

persons in question to leave his palace; adding, that he would do as

much by any other about his person whom he should find to have incurred

the ill affection of his people.[209] It was in the same session that

the archbishop of Canterbury was commanded to declare before the lords

the king's intention respecting his administration; allowing that some

things had been done amiss in his court and household; and therefore,

wishing to conform to the will of God and laws of the land, protested

that he would let in future no letters of signet or privy seal go in

disturbance of law, beseeched the lords to put his household in order,

so that every one might be paid, and declared that the money granted by

the commons for the war should be received by treasurers appointed in

parliament, and disbursed by them for no other purpose, unless in case

of rebellion. At the request of the commons he named the members of his

privy council; and did the same, with some variation of persons, two

years afterwards. These, though not nominated with the express consent,

seem to have had the approbation of the commons, for a subsidy is

granted in 7 H. IV., among other causes, for "the great trust that the

commons have in the lords lately chosen and ordained to be of the king's

continual council, that there shall be better management than

heretofore."[210]

In the sixth year of Henry the parliament, which Sir E. Coke derides as

unlearned because lawyers were excluded from it, proceeded to a

resumption of grants and a prohibition of alienating the ancient

inheritance of the crown without consent of parliament, in order to ease

the commons of taxes, and that the king might live on his own.[211] This

was a favourite though rather chimerical project. In a later parliament

it was requested that the king would take his council's advice how to

keep within his own revenue; he answered that he would willingly comply

as soon as it should be in his power.[212]

But no parliament came near, in the number and boldness of its demands,

to that held in the eighth year of Henry IV. The commons presented

thirty-one articles, none of which the king ventured to refuse, though

pressing very severely upon his prerogative. He was to name sixteen

counsellors, by whose advice he was solely to be guided, none of them to

be dismissed without conviction of misdemeanor. The chancellor and privy

seal to pass no grants or other matter contrary to law. Any persons

about the court stirring up the king or queen's minds against their

subjects, and duly convicted thereof, to lose their offices and be

fined. The king's ordinary revenue was wholly appropriated to his

household and the payment of his debts; no grant of wardship or other

profit to be made thereout, nor any forfeiture to be pardoned. The king,

"considering the wise government of other Christian princes, and

conforming himself thereto," was to assign two days in the week for

petitions, "it being an honourable and necessary thing that his lieges,

who desired to petition him, should be heard." No judicial officer, nor

any in the revenue or household, to enjoy his place for life or term of

years. No petition to be presented to the king, by any of his household,

at times when the council were not sitting. The council to determine

nothing cognizable at common law, unless for a reasonable cause and with

consent of the judges. The statutes regulating purveyance were

affirmed--abuses of various kinds in the council and in courts of

justice enumerated and forbidden--elections of knights for counties put

under regulation. The council and officers of state were sworn to

observe the common law and all statutes, those especially just

enacted.[213]

It must strike every reader that these provisions were of themselves a

noble fabric of constitutional liberty, and hardly perhaps inferior to

the petition of right under Charles I. We cannot account for the

submission of Henry to conditions far more derogatory than ever were

imposed on Richard, because the secret politics of his reign are very

imperfectly understood. Towards its close he manifested more vigour. The

speaker, Sir Thomas Chaucer, having made the usual petition for liberty

of speech, the king answered that he might speak as others had done in

the time of his (Henry's) ancestors, and his own, but not otherwise; for

he would by no means have any innovation, but be as much at his liberty

as any of his ancestors had ever been. Some time after he sent a message

to the commons, complaining of a law passed at the last parliament

infringing his liberty and prerogative, which he requested their consent

to repeal. To this the commons agreed, and received the king's thanks,

who declared at the same time that he would keep as much freedom and

prerogative as any of his ancestors. It does not appear what was the

particular subject of complaint; but there had been much of the same

remonstrating spirit in the last parliament that was manifested on

preceding occasions. The commons, however, for reasons we cannot

explain, were rather dismayed. Before their dissolution, they petition

the king, that, whereas he was reported to be offended at some of his

subjects in this and in the preceding parliament, he would openly

declare that he held them all for loyal subjects. Henry granted this "of

his special grace;" and thus concluded his reign more triumphantly with

respect to his domestic battles than he had gone through it.[214]

[Sidenote: Henry V. His popularity.]

Power deemed to be ill gotten is naturally precarious; and the instance

of Henry IV. has been well quoted to prove that public liberty

flourishes with a bad title in the sovereign. None of our kings seem to

have been less beloved; and indeed he had little claim to affection. But

what men denied to the reigning king they poured in full measure upon

the heir of his throne. The virtues of the prince of Wales are almost

invidiously eulogized by those parliaments who treat harshly his

father;[215] and these records afford a strong presumption that some

early petulance or riot has been much exaggerated by the vulgar minds of

our chroniclers. One can scarcely understand at least that a prince who

was three years engaged in quelling the dangerous insurrection of

Glendower, and who in the latter time of his father's reign presided at

the council, was so lost in a cloud of low debauchery as common fame

represents.[216] Loved he certainly was throughout his life, as so

intrepid, affable, and generous a temper well deserved; and this

sentiment was heightened to admiration by successes still more rapid and

dazzling than those of Edward III. During his reign there scarcely

appears any vestige of dissatisfaction in parliament--a circumstance

very honourable, whether we ascribe it to the justice of his

administration or to the affection of his people. Perhaps two

exceptions, though they are rather one in spirit, might be made: the

first, a petition to the duke of Gloucester, then holding parliament as

guardian of England, that he would move the king and queen to return,

as speedily as might please them, in relief and comfort of the

commons;[217] the second, a request that their petitions might not be

sent to the king beyond sea, but altogether determined "within this

kingdom of England, during this parliament," and that this ordinance

might be of force in all future parliaments to be held in England.[218]

This prayer, to which the guardian declined to accede, evidently sprang

from the apprehensions, excited in their minds by the treaty of Troyes,

that England might become a province of the French crown, which led them

to obtain a renewal of the statute of Edward III., declaring the

independence of this kingdom.[219]

[Sidenote: Parliament consulted on all public affairs.]

It has been seen already that even Edward III. consulted his parliament

upon the expediency of negociations for peace, though at that time the

commons had not acquired boldness enough to tender their advice. In

Richard II.'s reign they answered to a similar proposition with a little

more confidence, that the dangers each way were so considerable they

dared not decide, though an honourable peace would be the greatest

comfort they could have, and concluded by hoping that the king would not

engage to do homage for Calais or the conquered country.[220] The

parliament of the tenth of his reign was expressly summoned in order to

advise concerning the king's intended expedition beyond sea--a great

council, which had previously been assembled at Oxford, having declared

their incompetence to consent to this measure without the advice of

parliament.[221] Yet a few years afterwards, on a similar reference, the

commons rather declined to give any opinion.[222] They confirmed the

league of Henry V. with the emperor Sigismund;[223] and the treaty of

Troyes, which was so fundamentally to change the situation of Henry and

his successors, obtained, as it evidently required, the sanction of both

houses of parliament.[224] These precedents conspiring with the weakness

of the executive government, in the minority of Henry VI., to fling an

increase of influence into the scale of the commons, they made their

concurrence necessary to all important business both of a foreign and

domestic nature. Thus commissioners were appointed to treat of the

deliverance of the king of Scots, the duchesses of Bedford and

Gloucester were made denizens, and mediators were appointed to reconcile

the dukes of Gloucester and Burgundy, by authority of the three estates

assembled in parliament.[225] Leave was given to the dukes of Bedford

and Gloucester, and others in the king's behalf, to treat of peace with

France, by both houses of parliament, in pursuance of an article in the

treaty of Troyes, that no treaty should be set on foot with the dauphin

without consent of the three estates of both realms.[226] This article

was afterwards repealed.[227]

Some complaints are made by the commons, even during the first years of

Henry's minority, that the king's subjects underwent arbitrary

imprisonment, and were vexed by summonses before the council and by the

newly-invented writ of subpoena out of chancery.[228] But these are

not so common as formerly; and so far as the rolls lead us to any

inference, there was less injustice committed by the government under

Henry VI. and his father than at any former period. Wastefulness indeed

might justly be imputed to the regency, who had scandalously lavished

the king's revenue.[229] This ultimately led to an act for resuming all

grants since his accession, founded upon a public declaration of the

great officers of the crown that his debts amounted to 372,000_l._, and

the annual expense of the household to 24,000_l._, while the ordinary

revenue was not more than 5000_l._[230]

[Sidenote: Impeachments of ministers.]

6. But before this time the sky had begun to darken, and discontent with

the actual administration pervaded every rank. The causes of this are

familiar--the unpopularity of the king's marriage with Margaret of

Anjou, and her impolitic violence in the conduct of affairs,

particularly the imputed murder of the people's favourite, the duke of

Gloucester. This provoked an attack upon her own creature, the duke of

Suffolk. Impeachment had lain still, like a sword in the scabbard, since

the accession of Henry IV., when the commons, though not preferring

formal articles of accusation, had petitioned the king that Justice

Rickhill, who had been employed to take the former duke of Gloucester's

confession at Calais, and the lords appellants of Richard II.'s last

parliament, should be put on their defence before the lords.[231] In

Suffolk's case the commons seem to have proceeded by bill of attainder,

or at least to have designed the judgment against that minister to be

the act of the whole legislature; for they delivered a bill containing

articles against him to the lords, with a request that they would pray

the king's majesty to enact that bill in parliament, and that the said

duke might be proceeded against upon the said articles in parliament

according to the law and custom of England. These articles contained

charges of high treason, chiefly relating to his conduct in France,

which, whether treasonable or not, seems to have been grossly against

the honour and advantage of the crown. At a later day the commons

presented many other articles of misdemeanor. To the former he made a

defence, in presence of the king as well as the lords both spiritual and

temporal; and indeed the articles of impeachment were directly addressed

to the king, which gave him a reasonable pretext to interfere in the

judgment. But from apprehension, as it is said, that Suffolk could not

escape conviction upon at least some part of these charges, Henry

anticipated with no slight irregularity the course of legal trial, and,

summoning the peers into a private chamber, informed the duke of

Suffolk, by mouth of his chancellor, that, inasmuch as he had not put

himself upon his peerage, but submitted wholly to the royal pleasure,

the king, acquitting him of the first articles containing matter of

treason, by his own advice and not that of the lords, nor by way of

judgment, not being in a place where judgment could be delivered,

banished him for five years from his dominions. The lords then present

besought the king to let their protest appear on record, that neither

they nor their posterity might lose their rights of peerage by this

precedent. It was justly considered as an arbitrary stretch of

prerogative, in order to defeat the privileges of parliament and screen

a favourite minister from punishment. But the course of proceeding by

bill of attainder, instead of regular impeachment, was not judiciously

chosen by the commons.[232]

[Sidenote: Privilege of parliament.]

7. Privilege of parliament, an extensive and singular branch of our

constitutional law, begins to attract attention under the Lancastrian

princes. It is true indeed that we can trace long before by records, and

may infer with probability as to times whose records have not survived,

one considerable immunity--a freedom from arrest for persons transacting

the king's business in his national council.[233] Several authorities

may be found in Mr. Hatsell's Precedents; of which one, in the 9th of

Edward II., is conclusive.[234] But in those rude times members of

parliament were not always respected by the officers executing legal

process, and still less by the violators of law. After several

remonstrances, which the crown had evaded,[235] the commons obtained the

statute 11 Henry VI. c. 11, for the punishment of such as assault any on

their way to the parliament, giving double damages to the party.[236]

They had more difficulty in establishing, notwithstanding the old

precedents in their favour, an immunity from all criminal process except

in charges of treason, felony, and breach of the peace, which is their

present measure of privilege. The truth was, that, with a right pretty

clearly recognised, as is admitted by the judges in Thorp's case, the

house of commons had no regular compulsory process at their command. In

the cases of Lark, servant of a member, in the 8th of Henry VI.,[237]

and of Clerke, himself a burgess, in the 39th of the same king,[238] it

was thought necessary to effect their release from a civil execution by

special acts of parliament. The commons, in a former instance,

endeavoured to make the law general that no members nor their servants

might be taken except for treason, felony, and breach of peace; but the

king put a negative upon this part of their petition.

The most celebrated, however, of these early cases of privilege is that

of Thomas Thorp, speaker of the commons in 31 Henry VI. This person, who

was moreover a baron of the exchequer, had been imprisoned on an

execution at suit of the duke of York. The commons sent some of their

members to complain of a violation of privilege to the king and lords in

parliament, and to demand Thorp's release. It was alleged by the duke of

York's counsel that the trespass done by Thorp was since the beginning

of the parliament, and the judgment thereon given in time of vacation,

and not during the sitting. The lords referred the question to the

judges, who said, after deliberation, that "they ought not to answer to

that question, for it hath not be used aforetyme that the judges should

in any wise determine the privilege of this high court of parliament;

for it is so high and so mighty in his nature that it may make law, and

that that is law it may make no law; and the determination and knowledge

of that privilege belongeth to the lords of the parliament, and not to

the justices." They went on, however, after observing that a general

writ of supersedeas of all processes upon ground of privilege had not

been known, to say that, "if any person that is a member of this high

court of parliament be arrested in such cases as be not for treason, or

felony, or surety of the peace, or for a condemnation had before the

parliament, it is used that all such persons should be released of such

arrests and make an attorney, so that they may have their freedom and

liberty freely to intend upon the parliament."

Notwithstanding this answer of the judges, it was concluded by the lords

that Thorp should remain in prison, without regarding the alleged

privilege; and the commons were directed in the king's name to proceed

"with all goodly haste and speed" to the election of a new speaker. It

is curious to observe that the commons, forgetting their grievances, or

content to drop them, made such haste and speed according to this

command, that they presented a new speaker for approbation the next

day.[239]

This case, as has been strongly said, was begotten by the iniquity of

the times. The state was verging fast towards civil war; and Thorp, who

afterwards distinguished himself for the Lancastrian cause, was an

inveterate enemy of the duke of York. That prince seems to have been

swayed a little from his usual temper in procuring so unwarrantable a

determination. In the reign of Edward IV. the commons claimed privilege

against any civil suit during the time of their session; but they had

recourse, as before, to a particular act of parliament to obtain a writ

of supersedeas in favour of one Atwell, a member, who had been sued. The

present law of privilege seems not to have been fully established, or at

least effectually maintained, before the reign of Henry VIII.[240]

No privilege of the commons can be so fundamental as liberty of speech.

This is claimed at the opening of every parliament by their speaker, and

could never be infringed without shaking the ramparts of the

constitution. Richard II.'s attack upon Haxey has been already mentioned

as a flagrant evidence of his despotic intentions. No other case occurs

until the 33rd year of Henry VI., when Thomas Young, member for Bristol,

complained to the commons, that, "for matters by him showed in the house

accustomed for the commons in the said parliaments, he was therefore

taken, arrested, and rigorously in open wise led to the Tower of London,

and there grievously in great duress long time imprisoned against the

said freedom and liberty;" with much more to the like effect. The

commons transmitted this petition to the lords, and the king "willed

that the lords of his council do and provide for the said suppliant as

in their discretions shall be thought convenient and reasonable." This

imprisonment of Young, however, had happened six years before, in

consequence of a motion made by him that, the king then having no issue,

the duke of York might be declared heir-apparent to the crown. In the

present session, when the duke was protector, he thought it well-timed

to prefer his claim to remuneration.[241]

There is a remarkable precedent in the 9th of Henry IV., and perhaps the

earliest authority for two eminent maxims of parliamentary law--that the

commons possess an exclusive right of originating money bills, and that

the king ought not to take notice of matters pending in parliament. A

quarrel broke out between the two houses upon this ground; and as we

have not before seen the commons venture to clash openly with their

superiors, the circumstance is for this additional reason worthy of

attention. As it has been little noticed, I shall translate the whole

record.

"Friday the second day of December, which was the last day of the

parliament, the commons came before the king and the lords in

parliament, and there, by command of the king, a schedule of indemnity

touching a certain altercation moved between the lords and commons was

read; and on this it was commanded by our said lord the king that the

said schedule should be entered of record in the roll of parliament; of

which schedule the tenor is as follows: Be it remembered, that on Monday

the 21st day of November, the king our sovereign lord being in the

council-chamber in the abbey of Gloucester,[242] the lords spiritual and

temporal for this present parliament assembled being then in his

presence, a debate took place among them about the state of the kingdom,

and its defence to resist the malice of the enemies who on every side

prepare to molest the said kingdom and its faithful subjects, and how no

man can resist this malice, unless, for the safeguard and defence of his

said kingdom, our sovereign lord the king has some notable aid and

subsidy granted to him in his present parliament. And therefore it was

demanded of the said lords by way of question what aid would be

sufficient and requisite in these circumstances? To which question it

was answered by the said lords severally, that, considering the

necessity of the king on one side, and the poverty of his people on the

other, no less aid could be sufficient than one tenth and a half from

cities and towns, and one fifteenth and a half from all other lay

persons; and, besides, to grant a continuance of the subsidy on wool,

woolfells, and leather, and of three shillings on the tun (of wine),

and twelve pence on the pound (of other merchandise), from Michaelmas

next ensuing for two years thenceforth. Whereupon, by command of our

said lord the king, a message was sent to the commons of this parliament

to cause a certain number of their body to come before our said lord the

king and the lords, in order to hear and report to their companions what

they should be commanded by our said lord the king. And upon this the

said commons sent into the presence of our said lord the king and the

said lords twelve of their companions; to whom, by command of our said

lord the king, the said question was declared, with the answer by the

said lords severally given to it. Which answer it was the pleasure of

our said lord the king that they should report to the rest of their

fellows, to the end that they might take the shortest course to comply

with the intention of the said lords. Which report being thus made to

the said commons, they were greatly disturbed at it, saying and

asserting it to be much to the prejudice and derogation of their

liberties. And after that our said lord the king had heard this, not

willing that anything should be done at present, or in time to come,

that might anywise turn against the liberty of the estate for which they

are come to parliament, nor against the liberties of the said lords,

wills and grants and declares, by the advice and consent of the said

lords, as follows: to wit, that it shall be lawful for the lords to

debate together in this present parliament, and in every other for time

to come, in the king's absence, concerning the condition of the kingdom,

and the remedies necessary for it. And in like manner it shall be lawful

for the commons, on their part, to debate together concerning the said

condition and remedies. Provided always that neither the lords on their

part, nor the commons on theirs, do make any report to our said lord the

king of any grant granted by the commons, and agreed to by the lords,

nor of the communications of the said grant, before that the said lords

and commons are of one accord and agreement in this matter, and then in

manner and form accustomed--that is to say, by the mouth of the speaker

of the said commons for the time being--to the end that the said lords

and commons may have what they desire (avoir puissent leur gree) of our

said lord the king. Our said lord the king willing moreover, by the

consent of the said lords, that the communication had in this present

parliament as above be not drawn into precedent in time to come, nor be

turned to the prejudice or derogation of the liberty of the estate for

which the said commons are now come, neither in this present parliament

nor in any other time to come. But wills that himself and all the other

estates should be as free as they were before. Also, the said last day

of parliament, the said speaker prayed our said lord the king, on the

part of the said commons, that he would grant the said commons that they

should depart in as great liberty as other commons had done before. To

which the king answered that this pleased him well, and that at all

times it had been his desire."[243]

Every attentive reader will discover this remarkable passage to

illustrate several points of constitutional law. For hence it may be

perceived--first, that the king was used in those times to be present at

debates of the lords, personally advising with them upon the public

business; which also appears by many other passages on record; and this

practice, I conceive, is not abolished by the king's present

declaration, save as to grants of money, which ought to be of the free

will of parliament, and without that fear or influence which the

presence of so high a person might create: secondly, that it was already

the established law of parliament that the lords should consent to the

commons' grant, and not the commons to the lords'; since it is the

inversion of this order whereof the commons complain, and it is said

expressly that grants are made by the commons, and agreed to by the

lords: thirdly, that the lower house of parliament is not, in proper

language, an estate of the realm, but rather the image and

representative of the commons of England; who, being the third estate,

with the nobility and clergy make up and constitute the people of this

kingdom and liege subjects of the crown.[244]

At the next meeting of parliament, in allusion probably to this

disagreement between the houses, the king told them that the states of

parliament were come together for the common profit of the king and

kingdom, and for unanimity's sake and general consent; and therefore he

was sure the commons would not attempt nor say anything but what should

be fitting and conducive to unanimity; commanding them to meet together

and communicate for the public service.[245]

It was not only in money bills that the originating power was supposed

to reside in the commons. The course of proceedings in parliament, as

has been seen, from the commencement at least of Edward III.'s reign,

was that the commons presented petitions, which the lords, by

themselves, or with the assistance of the council, having duly

considered, the sanction of the king was notified or withheld. This was

so much according to usage, that, on one occasion, when the commons

requested the advice of the other house on a matter before them, it was

answered that the ancient custom and form of parliament had ever been

for the commons to report their own opinion to the king and lords, and

not to the contrary; and the king would have the ancient and laudable

usages of parliament maintained.[246] It is singular that in the terror

of innovation the lords did not discover how materially this usage of

parliament took off from their own legislative influence. The rule,

however, was not observed in succeeding times; bills originated

indiscriminately in either house; and indeed some acts of Henry V.,

which do not appear to be grounded on any petition, may be suspected,

from the manner of their insertion in the rolls of parliament, to have

been proposed on the king's part to the commons.[247] But there is one

manifest instance in the 18th of Henry VI., where the king requested the

commons to give their authority to such regulations[248] as his council

might provide for redressing the abuse of purveyance; to which they

assented.

If we are to choose constitutional precedents from seasons of

tranquillity rather than disturbance, which surely is the only means of

preserving justice or consistency, but little intrinsic authority can be

given to the following declaration of parliamentary law in the 11th of

Richard II.: "In this parliament (the roll says) all the lords as well

spiritual and temporal there present claimed as their liberty and

privilege, that the great matters moved in this parliament, and to be

moved in other parliaments for time to come, touching the peers of the

land, should be treated, adjudged, and debated according to the course

of parliament, and not by the civil law nor the common law of the land,

used in the other lower courts of the kingdom; which claim, liberty, and

privileges, the king graciously allowed and granted them in full

parliament."[249] It should be remembered that this assertion of

paramount privilege was made in very irregular times, when the king was

at the mercy of the duke of Gloucester and his associates, and that it

had a view to the immediate object of justifying their violent

proceedings against the opposite party, and taking away the restraint of

the common law. It stands as a dangerous rock to be avoided, not a

lighthouse to guide us along the channel. The law of parliament, as

determined by regular custom, is incorporated into our constitution; but

not so as to warrant an indefinite, uncontrollable assumption of power

in any case, least of all in judicial procedure, where the form and the

essence of justice are inseparable from each other. And, in fact, this

claim of the lords, whatever gloss Sir E. Coke may put upon it, was

never intended to bear any relation to the privileges of the lower

house. I should not, perhaps, have noticed this passage so strongly if

it had not been made the basis of extravagant assertions as to the

privileges of parliament;[250] the spirit of which exaggerations might

not be ill adapted to the times wherein Sir E. Coke lived, though I

think they produced at several later periods no slight mischief, some

consequences of which we may still have to experience.

[Sidenote: Contested elections how determined.]

The want of all judicial authority, either to issue process or to

examine witnesses, together with the usual shortness of sessions,

deprived the house of commons of what is now considered one of its most

fundamental privileges, the cognizance of disputed elections. Upon a

false return by the sheriff, there was no remedy but through the king or

his council. Six instances only, I believe, occur, during the reigns of

the Plantagenet family, wherein the misconduct or mistake of the sheriff

is recorded to have called for a specific animadversion, though it was

frequently the ground of general complaint, and even of some statutes.

The first is in the 12th of Edward II., when a petition was presented to

the council against a false return for the county of Devon, the

petitioner having been duly elected. It was referred to the court of

exchequer to summon the sheriff before them.[251] The next occurs in the

36th of Edward III., when a writ was directed to the sheriff of

Lancashire, after the dissolution of parliament, to inquire at the

county-court into the validity of the election; and upon his neglect a

second writ issued to the justices of the peace to satisfy themselves

about this in the best manner they could, and report the truth into

chancery. This inquiry after the dissolution was on account of the wages

for attendance, to which the knights unduly returned could have no

pretence.[252] We find a third case in the 7th of Richard II., when the

king took notice that Thomas de Camoys, who was summoned by writ to the

house of peers, had been elected knight for Surrey, and directed the

sheriff to return another.[253] In the same year the town of Shaftesbury

petitioned the king, lords, and commons against a false return of the

sheriff of Dorset, and prayed them to order remedy. Nothing further

appears respecting this petition.[254] This is the first instance of

the commons being noticed in matters of election. But the next case is

more material; in the 5th of Henry IV. the commons prayed the king and

lords in parliament, that, because the writ of summons to parliament was

not sufficiently returned by the sheriff of Rutland, this matter might

be examined in parliament, and in case of default found therein an

exemplary punishment might be inflicted; whereupon the lords sent for

the sheriff and Oneby, the knight returned, as well as for Thorp, who

had been duly elected, and, having examined into the facts of the case,

directed the return to be amended, by the insertion of Thorp's name, and

committed the sheriff to the Fleet till he should pay a fine at the

king's pleasure.[255] The last passage that I can produce is from the

roll of 18 H. VI., where "it is considered by the king, with the advice

and assent of the lords spiritual and temporal," that, whereas no

knights have been returned for Cambridgeshire, the sheriff shall be

directed, by another writ, to hold a court and to proceed to an

election, proclaiming that no person shall come armed, nor any

tumultuous proceeding take place; something of which sort appears to

have obstructed the execution of the first writ. It is to be noticed

that the commons are not so much as named in this entry.[256] But

several provisions were made by statute under the Lancastrian kings,

when seats in parliament became much more an object of competition than

before, to check the partiality of the sheriffs in making undue returns.

One act (11 H. IV. c. 1) gives the justices of assise power to inquire

into this matter, and inflicts a penalty of one hundred pounds on the

sheriff. Another (6 H. VI. c. 4) mitigates the rigour of the former, so

far as to permit the sheriff or the knights returned by him to traverse

the inquests before the justices; that is, to be heard in their own

defence, which, it seems, had not been permitted to them. Another (23 H.

VI. c. 14) gives an additional penalty upon false returns to the party

aggrieved. These statutes conspire with many other testimonies to

manifest the rising importance of the house of commons, and the

eagerness with which gentlemen of landed estates (whatever might be the

case in petty boroughs) sought for a share in the national

representation.

[Sidenote: In whom the right of voting for knights resided.]

Whoever may have been the original voters for county representatives,

the first statute that regulates their election, so far from limiting

the privilege to tenants in capite, appears to place it upon a very

large and democratical foundation. For (as I rather conceive, though not

without much hesitation), not only all freeholders, but all persons

whatever present at the county-court, were declared, or rendered,

capable of voting for the knight of their shire. Such at least seems to

be the inference from the expressions of 7 H. IV. c. 15, "all who are

there present, as well suitors duly summoned for that cause as

others."[257] And this acquires some degree of confirmation from the

later statute, 8 H. VI. c. 7, which, reciting that "elections of knights

of shires have now of late been made by very great, outrageous, and

excessive number of people dwelling within the same counties, of the

which most part was people of small substance and of no value," confines

the elective franchise to freeholders of lands or tenements to the value

of forty shillings.

[Sidenote: Elections of burgesses.]

The representation of towns in parliament was founded upon two

principles--of consent to public burthens, and of advice in public

measures, especially such as related to trade and shipping. Upon both

these accounts it was natural for the kings who first summoned them to

parliament, little foreseeing that such half-emancipated burghers would

ever clip the loftiest plumes of their prerogative, to make these

assemblies numerous, and summon members from every town of consideration

in the kingdom. Thus the writ of 23 E. I. directs the sheriffs to cause

deputies to be elected to a general council from every city, borough,

and trading town. And although the last words are omitted in subsequent

writs, yet their spirit was preserved; many towns having constantly

returned members to parliament by regular summonses, from the sheriffs,

which were no chartered boroughs, nor had apparently any other claim

than their populousness or commerce. These are now called boroughs by

prescription.[258]

Besides these respectable towns, there were some of a less eminent

figure which had writs directed to them as ancient demesnes of the

crown. During times of arbitrary taxation the crown had set tallages

alike upon its chartered boroughs and upon its tenants in demesne. When

parliamentary consent became indispensable, the free tenants in ancient

demesne, or rather such of them as inhabited some particular vills, were

called to parliament among the other representatives of the commons.

They are usually specified distinctly from the other classes of

representatives in grants of subsidies throughout the parliaments of the

first and second Edwards, till, about the beginning of the third's

reign, they were confounded with ordinary burgesses.[259] This is the

foundation of that particular species of elective franchise incident to

what we denominate burgage tenure; which, however, is not confined to

the ancient demesne of the crown.[260]

[Sidenote: Power of the sheriff to omit boroughs.]

The proper constituents therefore of the citizens and burgesses in

parliament appear to have been--1. All chartered boroughs, whether they

derived their privileges from the crown, or from a mesne lord, as

several in Cornwall did from Richard king of the Romans;[261] 2. All

towns which were the ancient or the actual demesne of the crown; 3. All

considerable places, though unincorporated, which could afford to defray

the expenses of their representatives, and had a notable interest in the

public welfare. But no parliament ever perfectly corresponded with this

theory. The writ was addressed in general terms to the sheriff,

requiring him to cause two knights to be elected out of the body of the

county, two citizens from every city, and two burgesses from every

borough. It rested altogether upon him to determine what towns should

exercise this franchise; and it is really incredible, with all the

carelessness and ignorance of those times, what frauds the sheriffs

ventured to commit in executing this trust. Though parliaments met

almost every year, and there could be no mistake in so notorious a fact,

it was the continual practice of sheriffs to omit boroughs that had been

in recent habit of electing members, and to return upon the writ that

there were no more within their county. Thus in the 12th of Edward III.

the sheriff of Wiltshire, after returning two citizens for Salisbury,

and burgesses for two boroughs, concludes with these words:--"There are

no other cities or boroughs within my bailiwick." Yet in fact eight

other towns had sent members to preceding parliaments. So in the 6th of

Edward II. the sheriff of Bucks declared that he had no borough within

his county except Wycomb; though Wendover, Agmondesham, and Marlow had

twice made returns since that king's accession.[262] And from this

cause alone it has happened that many towns called boroughs, and having

a charter and constitution as such, have never returned members to

parliament; some of which are now among the most considerable in

England, as Leeds, Birmingham, and Macclesfield.[263]

It has been suggested, indeed, by Brady,[264] that these returns may not

appear so false and collusive if we suppose the sheriff to mean only

that there were no resident burgesses within these boroughs fit to be

returned, or that the expense of their wages would be too heavy for the

place to support. And no doubt the latter plea, whether implied or not

in the return, was very frequently an inducement to the sheriffs to

spare the smaller boroughs. The wages of knights were four shillings a

day, levied on all freeholders, or at least on all holding by

knight-service, within the county.[265] Those of burgesses were half

that sum;[266] but even this pittance was raised with reluctance and

difficulty from miserable burghers, little solicitous about political

franchises. Poverty, indeed, seems to have been accepted as a legal

excuse. In the 6th of E. II. the sheriff of Northumberland returns to

the writ of summons that all his knights are not sufficient to protect

the county; and in the 1st of E. III. that they were too much ravaged by

their enemies to send any members to parliament.[267] The sheriffs of

Lancashire, after several returns that they had no boroughs within their

county, though Wigan, Liverpool, and Preston were such, alleged at

length that none ought to be called upon on account of their poverty.

This return was constantly made, from 36 E. III. to the reign of Henry

VI.[268]

[Sidenote: Reluctance of boroughs to send members.]

The elective franchise was deemed by the boroughs no privilege or

blessing, but rather, during the chief part of this period, an

intolerable grievance. Where they could not persuade the sheriff to omit

sending his writ to them, they set it at defiance by sending no return.

And this seldom failed to succeed, so that, after one or two refusals to

comply, which brought no punishment upon them, they were left in quiet

enjoyment of their insignificance. The town of Torrington, in

Devonshire, went further, and obtained a charter of exemption from

sending burgesses, grounded upon what the charter asserts to appear on

the rolls of chancery, that it had never been represented before the

21st of E. III. This is absolutely false, and is a proof how little we

can rely upon the veracity of records, Torrington having made not less

than twenty-two returns before that time. It is curious that in spite of

this charter the town sent members to the two ensuing parliaments, and

then ceased for ever.[269] Richard II. gave the inhabitants of

Colchester a dispensation from returning burgesses for five years, in

consideration of the expenses they had incurred in fortifying the

town.[270] But this immunity, from whatever reason, was not regarded,

Colchester having continued to make returns as before.

The partiality of sheriffs in leaving out boroughs, which were

accustomed in old time to come to the parliament, was repressed, as far

as law could repress it, by a statute of Richard II., which imposed a

fine on them for such neglect, and upon any member of parliament who

should absent himself from his duty.[271] But it is, I think, highly

probable that a great part of those who were elected from the boroughs

did not trouble themselves with attendance in parliament. The sheriff

even found it necessary to take sureties for their execution of so

burthensome a duty, whose names it was usual, down to the end of the

fifteenth century, to endorse upon the writ along with those of the

elected.[272] This expedient is not likely to have been very successful;

and the small number, comparatively speaking, of writs for expenses of

members for boroughs, which have been published by Prynne, while those

for the knights of shires are almost complete, leads to a strong

presumption that their attendance was very defective. This statute of

Richard II. produced no sensible effect.

[Sidenote: Who the electors in boroughs were.]

By what persons the election of burgesses was usually made is a question

of great obscurity, which is still occasionally debated before

committees of parliament. It appears to have been the common practice

for a very few of the principal members of the corporation to make the

election in the county-court, and their names, as actual electors, are

generally returned upon the writ by the sheriff.[273] But we cannot

surely be warranted by this to infer that they acted in any other

capacity than as deputies of the whole body, and indeed it is frequently

expressed that they chose such and such persons by the assent of the

community;[274] by which word, in an ancient corporate borough, it seems

natural to understand the freemen participating in its general

franchises, rather than the ruling body, which, in many instances at

present, and always perhaps in the earliest age of corporations, derived

its authority by delegation from the rest. The consent, however, of the

inferior freemen we may easily believe to have been merely nominal; and,

from being nominal, it would in many places come by degrees not to be

required at all; the corporation, specially so denominated, or municipal

government, acquiring by length of usage an exclusive privilege in

election of members of parliament, as they did in local administration.

This, at least, appears to me a more probable hypothesis than that of

Dr. Brady, who limits the original right of election in all corporate

boroughs to the aldermen or other capital burgesses.[275]

[Sidenote: Members of the house of commons.]

The members of the house of commons, from this occasional disuse of

ancient boroughs as well as from the creation of new ones, underwent

some fluctuation during the period subject to our review. Two hundred

citizens and burgesses sat in the parliament held by Edward I. in his

twenty-third year, the earliest epoch of acknowledged representation.

But in the reigns of Edward III. and his three successors about ninety

places, on an average, returned members, so that we may reckon this part

of the commons at one hundred and eighty.[276] These, if regular in

their duties, might appear an over-balance for the seventy-four knights

who sat with them. But the dignity of ancient lineage, territorial

wealth, and military character, in times when the feudal spirit was

hardly extinct and that of chivalry at its height, made these burghers

vail their heads to the landed aristocracy. It is pretty manifest that

the knights, though doubtless with some support from the representatives

of towns, sustained the chief brunt of battle against the crown. The

rule and intention of our old constitution was, that each county, city,

or borough, should elect deputies out of its own body, resident among

themselves, and consequently acquainted with their necessities and

grievances.[277] It would be very interesting to discover at what time,

and by what degrees, the practice of election swerved from this

strictness. But I have not been able to trace many steps of the

transition. The number of practising lawyers who sat in parliament, of

which there are several complaints, seems to afford an inference that it

had begun in the reign of Edward III. Besides several petitions of the

commons that none but knights or reputable squires should be returned

for shires, an ordinance was made in the forty-sixth of his reign that

no lawyer practising in the king's court, nor sheriff during his

shrievalty, be returned knight for a county; because these lawyers put

forward many petitions in the name of the commons which only concerned

their clients.[278] This probably was truly alleged, as we may guess

from the vast number of proposals for changing the course of legal

process which fill the rolls during this reign. It is not to be doubted,

however, that many practising lawyers were men of landed estate in their

respective counties.

An act in the first year of Henry V. directs that none be chosen

knights, citizens, or burgesses, who are not resident within the place

for which they are returned on the day of the date of the writ.[279]

This statute apparently indicates a point of time when the deviation

from the line of law was frequent enough to attract notice, and yet not

so established as to pass for an unavoidable irregularity. It proceeded,

however, from great and general causes, which new laws, in this instance

very fortunately, are utterly incompetent to withstand. There cannot be

a more apposite proof of the inefficacy of human institutions to

struggle against the steady course of events than this unlucky statute

of Henry V., which is almost a solitary instance in the law of England

wherein the principle of desuetude has been avowedly set up against an

unrepealed enactment. I am not aware, at least, of any other, which not

only the house of commons, but the court of king's bench, has deemed

itself at liberty to declare unfit to be observed.[280] Even at the time

when it was enacted, the law had probably, as such, very little effect.

But still the plurality of elections were made according to ancient

usage, as well as statute, out of the constituent body. The contrary

instances were exceptions to the rule; but exceptions increasing

continually, till they subverted the rule itself. Prynne has remarked

that we chiefly find Cornish surnames among the representatives of

Cornwall, and those of northern families among the returns from the

North. Nor do the members for shires and towns seem to have been much

interchanged; the names of the former belonging to the most ancient

families, while those of the latter have a more plebeian cast.[281] In

the reign of Edward IV., and not before, a very few of the burgesses

bear the addition of esquire in the returns, which became universal in

the middle of the succeeding century.[282]

[Sidenote: Irregularity of elections.]

[Sidenote: Influence of the crown upon them.]

Even county elections seem in general, at least in the fourteenth century,

to have been ill-attended and left to the influence of a few powerful and

active persons. A petitioner against an undue return in the 12th of Edward

II. complains that, whereas he had been chosen knight for Devon by Sir

William Martin, bishop of Exeter, with the consent of the county, yet the

sheriff had returned another.[283] In several indentures of a much later

date a few persons only seem to have been concerned in the election,

though the assent of the community be expressed.[284] These

irregularities, which it would be exceedingly erroneous to convert, with

Hume, into lawful customs, resulted from the abuses of the sheriff's

power, which, when parliament sat only for a few weeks with its hands full

of business, were almost sure to escape with impunity. They were sometimes

also countenanced, or rather instigated, by the crown, which, having

recovered in Edward II.'s reign the prerogative of naming the sheriffs,

surrendered by an act of his father,[285] filled that office with its

creatures, and constantly disregarded the statute forbidding their

continuance beyond a year. Without searching for every passage that might

illustrate the interference of the crown in elections, I will mention two

or three leading instances. When Richard II. was meditating to overturn

the famous commission of reform, he sent for some of the sheriffs, and

required them to permit no knight or burgess to be elected to the next

parliament without the approbation of the king and his council. The

sheriffs replied that the commons would maintain their ancient privilege

of electing their own representatives.[286] The parliament of 1397, which

attainted his enemies and left the constitution at his mercy, was chosen,

as we are told, by dint of intimidation and influence.[287] Thus also that

of Henry VI., held at Coventry in 1460, wherein the duke of York and his

party were attainted, is said to have been unduly returned by the like

means. This is rendered probable by a petition presented to it by the

sheriffs, praying indemnity for all which they had done in relation

thereto contrary to law.[288] An act passed according to their prayer, and

in confirmation of elections. A few years before, in 1455, a singular

letter under the king's signet is addressed to the sheriffs, reciting that

"we be enfourmed there is busy labour made in sondry wises by certaine

persons for the chesyng of the said knights, ... of which labour we

marvaille greatly, insomuche as it is nothing to the honour of the

laborers, but ayenst their worship; it is also ayenst the lawes of the

lande," with more to that effect; and enjoining the sheriff to let

elections be free and the peace kept.[289] There was certainly no reason

to wonder that a parliament, which was to shift the virtual sovereignty of

the kingdom into the hands of one whose claims were known to extend much

further, should be the object of tolerably warm contests. Thus in the

Paston letters we find several proofs of the importance attached to

parliamentary elections by the highest nobility.[290]

[Sidenote: Constitution of the house of lords.]

The house of lords, as we left it in the reign of Henry III., was

entirely composed of such persons holding lands by barony as were

summoned by particular writ of parliament.[291] Tenure and summons were

both essential at this time in order to render any one a lord of

parliament--the first by the ancient constitution of our feudal monarchy

from the Conquest, the second by some regulation or usage of doubtful

origin, which was thoroughly established before the conclusion of Henry

III.'s reign. This produced, of course, a very marked difference between

the greater and the lesser or unparliamentary barons. The tenure of the

latter, however, still subsisted, and, though too inconsiderable to be

members of the legislature, they paid relief as barons, they might be

challenged on juries, and, as I presume, by parity of reasoning, were

entitled to trial by their peerage. These lower barons, or more commonly

tenants by parcels of baronies,[292] may be dimly traced to the latter

years of Edward III.[293] But many of them were successively summoned to

parliament, and thus recovered the former lustre of their rank, while

the rest fell gradually into the station of commoners, as tenants by

simple knight-service.

[Sidenote: Baronial tenure required for lords spiritual.]

As tenure without summons did not entitle any one to the privileges of a

lord of parliament, so no spiritual person at least ought to have been

summoned without baronial tenure. The prior of St. James at Northampton,

having been summoned in the twelfth of Edward II., was discharged upon

his petition, because he held nothing of the king by barony, but only in

frankalmoign. The prior of Bridlington, after frequent summonses, was

finally left out, with an entry made in the roll that he held nothing of

the king. The abbot of Leicester had been called to fifty parliaments;

yet, in the 25th of Edward III., he obtained a charter of perpetual

exemption, reciting that he held no lands or tenements of the crown by

barony or any such service as bound him to attend parliaments or

councils.[294] But great irregularities prevailed in the rolls of

chancery, from which the writs to spiritual and temporal peers were

taken--arising in part, perhaps, from negligence, in part from wilful

perversion; so that many abbots and priors, who like these had no

baronial tenure, were summoned at times and subsequently omitted, of

whose actual exemption we have no record. Out of one hundred and

twenty-two abbots and forty-one priors who at some time or other sat in

parliament, but twenty-five of the former and two of the latter were

constantly summoned: the names of forty occur only once, and those of

thirty-six others not, more than five times.[295] Their want of baronial

tenure, in all probability, prevented the repetition of writs which

accident or occasion had caused to issue.[296]

[Sidenote: Barons called by writ.]

The ancient temporal peers are supposed to have been intermingled with

persons who held nothing of the crown by barony, but attended in

parliament solely by virtue of the king's prerogative exercised in the

writ of summons.[297] These have been called barons by writ; and it

seems to be denied by no one that, at least under the first three

Edwards, there were some of this description in parliament. But after

all the labours of Dugdale and others in tracing the genealogies of our

ancient aristocracy, it is a problem of much difficulty to distinguish

these from the territorial barons. As the latter honours descended to

female heirs, they passed into new families and new names, so that we

can hardly decide of one summoned for the first time to parliament that

he did not inherit the possession of a feudal barony. Husbands of

baronial heiresses were frequently summoned in their wives' right, but

by their own names. They even sat after the death of their wives, as

tenants by the courtesy.[298] Again, as lands, though not the subject of

frequent transfer, were, especially before the statute de donis, not

inalienable, we cannot positively assume that all the right heirs of

original barons had preserved those estates upon which their barony had

depended.[299] If we judge, however, by the lists of those summoned,

according to the best means in our power, it will appear, according at

least to one of our most learned investigators of this subject, that the

regular barons by tenure were all along very far more numerous than

those called by writ; and that from the end of Edward III.'s reign no

spiritual persons, and few if any laymen, except peers created by

patent, were summoned to parliament who did not hold territorial

baronies.[300]

With respect to those who were indebted for their seats among the lords

to the king's writ, there are two material questions: whether they

acquired an hereditary nobility by virtue of the writ; and, if this be

determined against them, whether they had a decisive or merely a

deliberative voice in the house. Now, for the first question, it seems

that, if the writ of summons conferred an estate of inheritance, it must

have done so either by virtue of its terms or by established

construction and precedent. But the writ contains no words by which such

an estate can in law be limited; it summons the person addressed to

attend in parliament in order to give his advice on the public business,

but by no means implies that his advice will be required of his heirs,

or even of himself on any other occasion. The strongest expression is

"vobiscum et _caeteris_ praelatis, magnatibus et proceribus," which

appears to place the party on a sort of level with the peers. But the

words magnates and proceres are used very largely in ancient language,

and, down to the time of Edward III., comprehend the king's ordinary

council, as well as his barons. Nor can these, at any rate, be

construed to pass an inheritance, which in the grant of a private

person, much more of a king, would require express words of limitation.

In a single instance, the writ of summons to Sir Henry de Bromflete (27

H. VI.), we find these remarkable words: Volumus enim vos et haeredes

vestros masculos de corpore vestro legitime exeuntes barones de Vescy

existere. But this Sir Henry de Bromflete was the lineal heir of the

ancient barony de Vesci.[301] And if it were true that the writ of

summons conveyed a barony of itself, there seems no occasion to have

introduced these extraordinary words of creation or revival. Indeed

there is less necessity to urge these arguments from the nature of the

writ, because the modern doctrine, which is entirely opposite to what

has here been suggested, asserts that no one is ennobled by the mere

summons unless he has rendered it operative by taking his seat in

parliament; distinguishing it in this from a patent of peerage, which

requires no act of the party for its completion.[302] But this

distinction could be supported by nothing except long usage. If,

however, we recur to the practice of former times, we shall find that no

less than ninety-eight laymen were summoned once only to parliament,

none of their names occurring afterwards; and fifty others two, three,

or four times. Some were constantly summoned during their lives, none of

whose posterity ever attained that honour.[303] The course of

proceeding, therefore, previous to the accession of Henry VII., by no

means warrants the doctrine which was held in the latter end of

Elizabeth's reign,[304] and has since been too fully established by

repeated precedents to be shaken by any reasoning. The foregoing

observations relate to the more ancient history of our constitution,

and to the plain matter of fact as to those times, without considering

what political cause there might be to prevent the crown from

introducing occasional counsellors into the house of lords.[305]

[Sidenote: Bannerets summoned to house of lords.]

It is manifest by many passages in these records that bannerets were

frequently summoned to the upper house of parliament, constituting a

distinct class inferior to barons, though generally named together, and

ultimately confounded, with them.[306] Barons are distinguished by the

appellation of Sire, bannerets have only that of Monsieur, as le Sire de

Berkeley, le Sire de Fitzwalter, Monsieur Richard Scrop, Monsieur

Richard Stafford. In the 7th of Richard II. Thomas Camoys having been

elected knight of the shire for Surrey, the king addresses a writ to the

sheriff, directing him to proceed to a new election, cum hujusmodi

banneretti ante haec tempora in milites comitatus ratione alicujus

parliamenti eligi minime consueverunt. Camoys was summoned by writ to

the same parliament. It has been inferred from hence by Selden that he

was a baron, and that the word banneret is merely synonymous.[307] But

this is contradicted by too many passages. Bannerets had so far been

considered as commoners some years before that they could not be

challenged on juries.[308] But they seem to have been more highly

estimated at the date of this writ.

The distinction, however, between barons and bannerets died away by

degrees. In the 2nd of Henry VI.[309] Scrop of Bolton is called le Sire

de Scrop; a proof that he was then reckoned among the barons. The

bannerets do not often appear afterwards by that appellation as members

of the upper house. Bannerets, or, as they are called, banrents, are

enumerated among the orders of Scottish nobility in the year 1428, when

the statute directing the common lairds or tenants in capite to send

representatives was enacted; and a modern historian justly calls them an

intermediate order between the peers and lairds.[310] Perhaps a

consideration of these facts, which have frequently been overlooked, may

tend in some measure to explain the occasional discontinuance, or

sometimes the entire cessation, of writs of summons to an individual or

his descendants; since we may conceive that bannerets, being of a

dignity much inferior to that of barons, had no such inheritable

nobility in their blood as rendered their parliamentary privileges a

matter of right. But whether all those who without any baronial tenure

received their writs of summons to parliament belonged to the order of

bannerets I cannot pretend to affirm; though some passages in the rolls

might rather lead to such a supposition.[311]

The second question relates to the right of suffrage possessed by these

temporary members of the upper house. It might seem plausible certainly

to conceive that the real and ancient aristocracy would not permit their

powers to be impaired by numbering the votes of such as the king might

please to send among them, however they might allow them to assist in

their debates. But I am much more inclined to suppose that they were in

all respects on an equality with other peers during their actual

attendance in parliament. For,--1. They are summoned by the same writ as

the rest, and their names are confused among them in the lists; whereas

the judges and ordinary counsellors are called by a separate writ,

vobiscum et caeteris de consilio nostro, and their names are entered

after those of the peers.[312] 2. Some, who do not appear to have held

land-baronies, were constantly summoned from father to son, and thus

became hereditary lords of parliament through a sort of prescriptive

right, which probably was the foundation of extending the same privilege

afterwards to the descendants of all who had once been summoned. There

is no evidence that the family of Scrope, for example, which was eminent

under Edward III. and subsequent kings, and gave rise to two branches,

the lords of Bolton and Masham, inherited any territorial honour.[313]

3. It is very difficult to obtain any direct proof as to the right of

voting, because the rolls of parliament do not take notice of any

debates; but there happens to exist one remarkable passage in which the

suffrages of the lords are individually specified. In the first

parliament of Henry IV. they were requested by the earl of

Northumberland to declare what should be done with the late king

Richard. The lords then present agreed that he should be detained in

safe custody; and on account of the importance of this matter it seems

to have been thought necessary to enter their names upon the roll in

these words:--The names of the lords concurring in their answer to the

said question here follow; to wit, the archbishop of Canterbury and

fourteen other bishops; seven abbots; the prince of Wales, the duke of

York, and six earls; nineteen barons, styled thus--le Sire de Roos, or

le Sire de Grey de Ruthyn. Thus far the entry has nothing singular; but

then follow these nine names: Monsieur Henry Percy, Monsieur Richard

Scrop, le Sire Fitz-hugh, le Sire de Bergeveny, le Sire de Lomley, le

Baron de Greystock, le Baron de Hilton, Monsieur Thomas Erpyngham,

chamberlayn, Monsieur Mayhewe Gournay. Of these nine five were

undoubtedly barons, from whatever cause misplaced in order. Scrop was

summoned by writ; but his title of Monsieur, by which he is invariably

denominated, would of itself create a strong suspicion that he was no

baron, and in another place we find him reckoned among the bannerets.

The other three do not appear to have been summoned, their writs

probably being lost. One of them, Sir Thomas Erpyngham, a statesman well

known in the history of those times, is said to have been a

banneret;[314] certainly he was not a baron. It is not unlikely that the

two others, Henry Percy (Hotspur) and Gournay, an officer of the

household, were also bannerets; they cannot at least be supposed to be

barons, neither were they ever summoned to any subsequent parliament.

Yet in the only record we possess of votes actually given in the house

of lords they appear to have been reckoned among the rest.[315]

[Sidenote: Creation of peers by statute.]

The next method of conferring an honour of peerage was by creation in

parliament. This was adopted by Edward III. in several instances, though

always, I believe, for the higher titles of duke or earl. It is laid

down by lawyers that whatever the king is said in an ancient record to

have done in full parliament must be taken to have proceeded from the

whole legislature. As a question of fact, indeed, it might be doubted

whether, in many proceedings where this expression is used, and

especially in the creation of peers, the assent of the commons was

specifically and deliberately given. It seems hardly consonant to the

circumstances of their order under Edward III. to suppose their sanction

necessary in what seemed so little to concern their interest. Yet there

is an instance in the fortieth year of that prince where the lords

individually, and the commons with one voice, are declared to have

consented, at the king's request, that the lord de Coucy, who had

married his daughter, and was already possessed of estates in England,

might be raised to the dignity of an earl, whenever the king should

determine what earldom he would confer upon him.[316] Under Richard II.

the marquisate of Dublin is granted to Vere by full consent of all the

estates. But this instrument, besides the unusual name of dignity,

contained an extensive jurisdiction and authority over Ireland.[317] In

the same reign Lancaster was made duke of Guienne, and the duke of

York's son created earl of Rutland, to hold during his father's life.

The consent of the lords and commons is expressed in their patents, and

they are entered upon the roll of parliament.[318] Henry V. created his

brothers dukes of Bedford and Gloucester by request of the lords and

commons.[319] But the patent of Sir John Cornwall, in the tenth of Henry

VI., declares him to be made lord Fanhope, "by consent of the lords, in

the presence of the three estates of parliament;" as if it were designed

to show that the commons had not a legislative voice in the creation of

peers.[320]

[Sidenote: And by patent.]

The mention I have made of creating peers by act of parliament has

partly anticipated the modern form of letters patent, with which the

other was nearly allied. The first instance of a barony conferred by

patent was in the tenth year of Richard II., when Sir John Holt, a judge

of the Common Pleas, was created lord Beauchamp of Kidderminster. Holt's

patent, however, passed while Richard was endeavouring to act in an

arbitrary manner; and in fact he never sat in parliament, having been

attainted in that of the next year by the name of Sir John Holt. In a

number of subsequent patents down to the reign of Henry VII. the assent

of parliament is expressed, though it frequently happens that no mention

of it occurs in the parliamentary roll. And in some instances the roll

speaks to the consent of parliament where the patent itself is

silent.[321]

[Sidenote: Clergy summoned to attend parliament.]

It is now perhaps scarcely known by many persons not unversed in the

constitution of their country, that, besides the bishops and baronial

abbots, the inferior clergy were regularly summoned at every parliament.

In the writ of summons to a bishop he is still directed to cause the

dean of his cathedral church, the archdeacon of his diocese, with one

proctor from the chapter of the former, and two from the body of his

clergy, to attend with him at the place of meeting. This might, by an

inobservant reader, be confounded with the summons to the convocation,

which is composed of the same constituent parts, and, by modern usage,

is made to assemble on the same day. But it may easily be distinguished

by this difference--that the convocation is provincial, and summoned by

the metropolitans of Canterbury and York; whereas the clause commonly

denominated praemunientes (from its first word) in the writ to each

bishop proceeds from the crown, and enjoins the attendance of the clergy

at the national council of parliament.[322]

The first unequivocal instance of representatives appearing for the

lower clergy is in the year 1255, when they are expressly named by the

author of the Annals of Burton.[323] They preceded, therefore, by a few

years the house of commons; but the introduction of each was founded

upon the same principle. The king required the clergy's money, but

dared not take it without their consent.[324] In the double parliament,

if so we may call it, summoned in the eleventh of Edward I. to meet at

Northampton and York, and divided according to the two ecclesiastical

provinces, the proctors of chapters for each province, but not those of

the diocesan clergy, were summoned through a royal writ addressed to the

archbishops. Upon account of the absence of any deputies from the lower

clergy these assemblies refused to grant a subsidy. The proctors of both

descriptions appear to have been summoned by the praemunientes clause in

the 22nd, 23rd, 24th, 28th, and 35th years of the same king; but in some

other parliaments of his reign the praemunientes clause is omitted.[325]

The same irregularity continued under his successor; and the constant

usage of inserting this clause in the bishop's writ is dated from the

twenty-eighth of Edward III.[326]

It is highly probable that Edward I., whose legislative mind was engaged

in modelling the constitution on a comprehensive scheme, designed to

render the clergy an effective branch of parliament, however their

continual resistance may have defeated the accomplishment of this

intention.[327] We find an entry upon the roll of his parliament at

Carlisle, containing a list of all the proctors deputed to it by the

several dioceses of the kingdom. This may be reckoned a clear proof of

their parliamentary attendance during his reign under the praemunientes

clause; since the province of Canterbury could not have been present in

convocation at a city beyond its limits.[328] And indeed, if we were to

found our judgment merely on the language used in these writs, it would

be hard to resist a very strange paradox, that the clergy were not only

one of the three estates of the realm, but as essential a member of the

legislature by their representatives as the commons.[329] They are

summoned in the earliest year extant (23 E. I.) ad tractandum,

ordinandum et faciendum nobiscum, et cum caeteris praelatis, proceribus,

ac aliis incolis regni nostri; in that of the next year, ad ordinandum

de quantitate et modo subsidii; in that of the twenty-eighth, ad

faciendum et consentiendum his, quae tunc de communi consilio ordinari

contigerit. In later times it ran sometimes ad faciendum et

consentiendum, sometimes only ad consentiendum; which, from the fifth of

Richard II., has been the term invariably adopted.[330] Now, as it is

usual to infer from the same words, when introduced into the writs for

election of the commons, that they possessed an enacting power, implied

in the words ad faciendum, or at least to deduce the necessity of their

assent from the words ad consentiendum, it should seem to follow that

the clergy were invested, as a branch of the parliament, with rights no

less extensive. It is to be considered how we can reconcile these

apparent attributes of political power with the unquestionable facts

that almost all laws, even while they continued to attend, were passed

without their concurrence, and that, after some time, they ceased

altogether to comply with the writ.[331]

The solution of this difficulty can only be found in that estrangement

from the common law and the temporal courts which the clergy throughout

Europe were disposed to effect. In this country their ambition defeated

its own ends; and while they endeavoured by privileges and immunities to

separate themselves from the people, they did not perceive that the line

of demarcation thus strongly traced would cut them off from the sympathy

of common interests. Everything which they could call of ecclesiastical

cognizance was drawn into their own courts; while the administration of

what they contemned as a barbarous system, the temporal law of the

land, fell into the hands of lay judges. But these were men not less

subtle, not less ambitious, not less attached to their profession than

themselves; and wielding, as they did in the courts of Westminster, the

delegated sceptre of judicial sovereignty, they soon began to control

the spiritual jurisdiction, and to establish the inherent supremacy of

the common law. From this time an inveterate animosity subsisted between

the two courts, the vestiges of which have only been effaced by the

liberal wisdom of modern ages. The general love of the common law,

however, with the great weight of its professors in the king's council

and in parliament, kept the clergy in surprising subjection. None of our

kings after Henry III. were bigots; and the constant tone of the commons

serves to show that the English nation was thoroughly averse to

ecclesiastical influence, whether of their own church or the see of

Rome.

It was natural, therefore, to withstand the interference of the clergy

summoned to parliament in legislation, as much as that of the spiritual

court in temporal jurisdiction. With the ordinary subjects, indeed, of

legislation they had little concern. The oppressions of the king's

purveyors, or escheators, or officers of the forests, the abuses or

defects of the common law, the regulations necessary for trading towns

and seaports, were matters that touched them not, and to which their

consent was never required. And, as they well knew there was no design

in summoning their attendance but to obtain money, it was with great

reluctance that they obeyed the royal writ, which was generally obliged

to be enforced by an archiepiscopal mandate.[332] Thus, instead of an

assembly of deputies from an estate of the realm, they became a synod or

convocation. And it seems probable that in most, if not all, instances

where the clergy are said in the roll of parliament to have presented

their petitions, or are otherwise mentioned as a deliberative body, we

should suppose the convocation alone of the province of Canterbury to

be intended.[333] For that of York seems to have been always considered

as inferior, and even ancillary, to the greater province, voting

subsidies, and even assenting to canons, without deliberation, in

compliance with the example of Canterbury;[334] the convocation of which

province consequently assumed the importance of a national council. But

in either point of view the proceedings of this ecclesiastical assembly,

collateral in a certain sense to parliament, yet very intimately

connected with it, whether sitting by virtue of the praemunientes clause

or otherwise, deserve some notice in a constitutional history.

In the sixth year of Edward III. the proctors of the clergy are

specially mentioned as present at the speech pronounced by the king's

commissioner, and retired, along with the prelates, to consult together

upon the business submitted to their deliberation. They proposed

accordingly a sentence of excommunication against disturbers of the

peace, which was assented to by the lords and commons. The clergy are

said afterwards to have had leave, as well as the knights, citizens, and

burgesses, to return to their homes; the prelates and peers continuing

with the king.[335] This appearance of the clergy in full parliament is

not, perhaps, so decisively proved by any later record. But in the

eighteenth of the same reign several petitions of the clergy are granted

by the king and his council, entered on the roll of parliament, and even

the statute roll, and in some respects are still part of our law.[336]

To these it seems highly probable that the commons gave no assent; and

they may be reckoned among the other infringements of their legislative

rights. It is remarkable that in the same parliament the commons, as if

apprehensive of what was in preparation, besought the king that no

petition of the clergy might be granted till he and his council should

have considered whether it would turn to the prejudice of the lords or

commons.[337]

A series of petitions from the clergy, in the twenty-fifth of Edward.

III., had not probably any real assent of the commons, though it is once

mentioned in the enacting words, when they were drawn into a

statute.[338] Indeed the petitions correspond so little with the general

sentiment of hostility towards ecclesiastical privileges manifested by

the lower house of parliament, that they would not easily have obtained

its acquiescence. The convocation of the province of Canterbury

presented several petitions in the fiftieth year of the same king, to

which they received an assenting answer; but they are not found in the

statute-book. This, however, produced the following remonstrance from

the commons at the next parliament: "Also the commons beseech their lord

the king, that no statute nor ordinance be made at the petition of the

clergy, unless by assent of your commons; and that your commons be not

bound by any constitutions which they make for their own profit without

the commons' assent. For they will not be bound by any of your statutes

or ordinances made without their assent."[339] The king evaded a direct

answer to this petition. But the province of Canterbury did not the less

present their own grievances to the king in that parliament, and two

among the statutes of the year seem to be founded upon no other

authority.[340]

In the first session of Richard II. the prelates and clergy of both

provinces are said to have presented their schedule of petitions which

appear upon the roll, and three of which are the foundation of statutes

unassented to in all probability by the commons.[341] If the clergy of

both provinces were actually present, as is here asserted, it must of

course have been as a house of parliament, and not of convocation. It

rather seems, so far as we can trust to the phraseology of records,

that the clergy sat also in a national assembly under the king's writ in

the second year of the same king.[342] Upon other occasions during the

same reign, where the representatives of the clergy are alluded to as a

deliberative body, sitting at the same time with the parliament, it is

impossible to ascertain its constitution; and, indeed, even from those

already cited we cannot draw any positive inference.[343] But whether in

convocation or in parliament, they certainly formed a legislative

council in ecclesiastical matters by the advice and consent of which

alone, without that of the commons (I can say nothing as to the lords),

Edward III. and even Richard II. enacted laws to bind the laity. I have

mentioned in a different place a still more conspicuous instance of this

assumed prerogative; namely, the memorable statute against heresy in the

second of Henry IV.; which can hardly be deemed anything else than an

infringement of the rights of parliament, more clearly established at

that time than at the accession of Richard II. Petitions of the commons

relative to spiritual matters, however frequently proposed, in few or no

instances obtained the king's assent so as to pass into statutes,

unless approved by the convocation.[344] But, on the other hand,

scarcely any temporal laws appear to have passed by the concurrence of

the clergy. Two instances only, so far as I know, are on record: the

parliament held in the eleventh of Richard II. is annulled by that in

the twenty-first of his reign, "with the assent of the lords spiritual

and temporal, _and the proctors of the clergy_, and the commons;"[345]

and the statute entailing the crown on the children of Henry IV. is said

to be enacted on the petition of the prelates, nobles, clergy, and

commons.[346] Both these were stronger exertions of legislative

authority than ordinary acts of parliament, and were very likely to be

questioned in succeeding times.

[Sidenote: Jurisdiction of the king's council.]