[23] This assembly is mentioned in the preamble, and afterwards, of the

spurious laws of Edward the Confessor; and I have been accused of

passing it over too slightly. The fact certainly does not rest on the

authority of Hoveden, who transcribes these laws _verbatim_; and they

are in substance an ancient document. There seems to me somewhat rather

suspicious in this assembly of delegates; it looks like a pious fraud to

maintain the old Saxon jurisprudence, which was giving way. But even if

we admit the fact as here told, I still adhere to the assertion that

there is no appearance that these twelve deputies of each county were

invested with any higher authority than that of declaring their ancient

usages. Any supposition of a real legislative parliament would be

inconsistent with all that we know of the state of England under the

Conqueror. And what an anomaly, upon every constitutional principle,

Anglo-Saxon or Norman, would be a parliament of twelve from each county!

Nor is it perfectly manifest that they were chosen by the people; the

word summoneri fecit is first used; and afterwards, electis de (not

_in_) singulis totius patriae comitatibus. This might be construed of the

king's selection; but perhaps the common interpretation is rather the

better.

William, the compiler informs us, having heard some of the Danish laws,

was disposed to confirm them in preference to those of England; but

yielded to the supplication of the delegates, omnes compatriotae, qui

leges narraverant, that he would permit them to retain the customs of

their ancestors, imploring him by the soul of King Edward, cujus erant

leges, nec aliorum exterorum. The king at length gave way, by the advice

and request of his barons, consilio et precatu baronum. These of course

were Normans; but what inference can be drawn in favour of parliamentary

representation in England from the behaviour of the rest? They were

supplicants, not legislators.

[24] 2 Prynne's Register, p. 16.

[25] Brady's Introduction, Appendix, pp. 41 and 44. "The language of

these writs implies a distinction between such as were styled barons,

apparently including the earls and the four knights who were to come

from the several counties ad loquendum, and who were also distinguished

from the knights summoned to attend with arms, in performance, it should

seem, of the military service due by their respective tenures; and the

writs, therefore, apparently distinguished certain tenants in chief by

knight-service from barons, if the knights so summoned to attend with

arms were required to attend by reason of their respective tenures in

chief of the king. How the four knights of each county who were thus

summoned to confer with the king were to be chosen, whether by the

county, or according to the mere will of the sheriff, does not appear;

but it seems most probable that they were intended by the king as

representatives of the freeholders of each county, and to balance the

power of the hostile nobles, who were then leagued against him; and the

measure might lead to conciliate the minds of those who would otherwise

have had no voice in the legislative assembly." Report of Lords'

Committee, p. 61.

This would be a remarkable fact, and the motive is by no means

improbable, being perhaps that which led to the large provisions for

summoning tenants in chief, contained in the charter of John, and

afterwards passed over. But this parley of the four knights from each

county, for they are only summoned ad loquendum, may not amount to

bestowing on them any legislative power. It is nevertheless to be

remembered that the word parliament meant, by its etymology, nothing

more; and the words, ad loquendum, may have been used in reference to

that. It is probable that these writs were not obeyed; we have no

evidence that they were, and it was a season of great confusion very

little before the granting of the charter of Henry III.

[26] Brady's Hist. of England, vol. i. Appendix, p. 227.

[27] 2 Prynne, p. 23.

[28] "This writ tends strongly to show that there then existed no law by

which a representation either of the king's tenants in capite or of

others, for the purpose of constituting a legislative assembly, or for

granting an aid, was specially provided; and it seems to have been the

first instance appearing on any record now extant, of an attempt to

substitute representatives elected by bodies of men for the attendance

of the individual so to be represented, personally or by their several

procurators, in an assembly convened for the purpose of obtaining an

aid." Report, p. 95.

[29] 2 Prynne, p. 27.

[30] 12 Ric. II. c. 12. Prynne's 4th Register.

[31] Pinkerton's Hist. of Scotland, vol. i. p. 120, 357. But this law

was not regularly acted upon till 1587. p. 368.

[32] What can one who adopts this opinion of Dr. Brady say to the

following record? Rex militibus, liberis hominibus, et _toti

communitati_ comitatus Wygorniae tam intra libertates quam extra,

salutem. Cum comites, barones, milites, liberi homines, et communitates

comitatuum regni nostri vicesimam omnium bonorum suorum mobilium,

civesque et burgenses et communitates omnium civitatum et burgorum

ejusdem regni, necnon tenentes de antiquis dominicis coronae nostrae

quindecimam bonorum suorum mobilium nobis concesserunt. Pat. Rot. 1 E.

II. in Rot. Parl. vol. i. p. 442. See also p. 241 and p. 269. If the

word communitas is here used in any precise sense, which, when possible,

we are to suppose in construing a legal instrument, it must designate,

not the tenants in chief, but the inferior class, who, though neither

freeholders nor free burgesses, were yet contributable to the subsidy on

their goods.

[33] Madox, Firma Burgi, p. 99 and p. 102 note Z.

[34] Prynne's 2nd Register, p. 50.

[35] Carte's Hist. of England, ii. 250.

[36] The present question has been discussed with much ability in the

Edinburgh Review, vol. xxvi. p. 341. [Note III.]

[37] Wilkins, p. 71.

[38] Burgensis Exoniae urbis habent extra civitatem terram duodecim

carucatarum: quae nullam consuetudinem reddunt nisi ad ipsam civitatem.

Domesday, p. 100. At Canterbury the burgesses had forty-five houses

without the city, de quibus ipsi habebant gablum et consuetudinem, rex

autem socam et sacam; ipsi quoque burgenses habebant de rege triginta

tres acras prati in gildam, suam. p. 2. In Lincoln and Stamford some

resident proprietors, called Lagemanni, had jurisdiction (socam et

sacam) over their tenants. But nowhere have I been able to discover any

trace of municipal self-government; unless Chester may be deemed an

exception, where we read of twelve judices civitatis; but by whom

constituted does not appear. The word lageman seems equivalent to judex.

The guild mentioned above at Canterbury was, in all probability, a

voluntary association: so at Dover we find the burgesses' guildhall,

gihalla burgensium. p. 1.

Many of the passages in Domesday relative to the state of burgesses are

collected in Brady's History of Boroughs; a work which, if read with due

suspicion of the author's honesty, will convey a great deal of

knowledge.

Since the former part of this note was written, I have met with a

charter granted by Henry II. to Lincoln, which seems to refer, more

explicitly than any similar instrument, to municipal privileges of

jurisdiction enjoyed by the citizens under Edward the Confessor. These

charters, it is well known, do not always recite what is true; yet it is

possible that the citizens of Lincoln, which had been one of the five

Danish towns, sometimes mentioned with a sort of distinction by writers

before the Conquest, might be in a more advantageous situation than the

generality of burgesses. Sciatis me concessisse civibus meis Lincoln,

omnes libertates et consuetudines et leges suas, quas habuerunt tempore

Edwardi et Will. et Henr. regum Angliae, et gildam suam mercatoriam de

hominibus civitatis et de aliis mercatoribus comitatus, sicut illam

habuerunt tempore predictorum, antecessorum nostrorum, regum Angliae,

melius et liberius. Et omnes homines qui infra quatuor divisas civitates

manent et mercatum deducunt, sint ad gildas, et consuetudines et assisas

civitatis, sicut melius fuerunt temp. Edw. et Will. et Hen. regum

Angliae. Rymer, t. i. p. 40 (edit. 1816).

I am indebted to the friendly remarks of the periodical critic whom I

have before mentioned for reminding me of other charters of the same

age, expressed in a similar manner, which in my haste I had overlooked,

though printed in common books. But whether these general words ought to

outweigh the silence of Domesday Book I am not prepared to decide. I

have admitted below that the possession of corporate property implies an

elective government for its administration, and I think it perfectly

clear that the guilds made by-laws for the regulation of their members.

Yet this is something different from municipal jurisdiction over all the

inhabitants of a town. [Note IV.]

[39] Madox, Hist. of Exchequer, c. 17.

[40] Madox, Firma Burgi, p. 1. There is one instance, I know not if any

more could be found, of a firma burgi before the Conquest. It was at

Huntingdon. Domesday, p. 203.

[41] Madox, p. 12, 13.

[42] Id. p. 21.

[43] I have read somewhere that this charter was granted in 1101. But

the instrument itself, which is only preserved by an Inspeximus of

Edward IV., does not contain any date. Rymer, t. i. p. 11 (edit. 1816).

Could it be traced so high, the circumstance would be remarkable, as the

earliest charters granted by Louis VI., supposed to be the father of

these institutions, are several years later.

It is said by Mr. Thorpe (Ancient Laws of England, p. 267), that, though

there are ten witnesses, he only finds one who throws any light on the

date: namely, Hugh Bigod, who succeeded his brother William in 1120. But

Mr. Thorpe does not mention in what respect he succeeded. It was as

_dapifer regis_; but he is not so named in the charter. Dugdale's

Baronage, p. 132. The date, therefore, still seems problematical.

[44] This did not, however, save the citizens from paying one hundred

marks to the king for this privilege. Mag. Rot. 5 Steph. apud Madox,

Hist. Exchequer, t. xi. I do not know that the charter of Henry I. can

be suspected; but Brady, in his treatise of Boroughs (p. 38, edit.

1777), does not think proper once to mention it; and indeed uses many

expressions incompatible with its existence.

[45] Blomefield, Hist of Norfolk, vol. ii. p. 16, says that Henry I.

granted the same privileges by charter to Norwich in 1122 which London

possessed. Yet it appears that the king named the port reeve or provost;

but Blomefield suggests that he was probably recommended by the

citizens, the office being annual.

[46] Madox, Firma Burgi, p. 23. Hickes has given us a bond of fellowship

among the thanes of Cambridgeshire, containing several curious

particulars. A composition of eight pounds, exclusive, I conceive, of

the usual weregild, was to be enforced from the slayer of any fellow. If

a fellow (gilda) killed a man of 1200 shillings weregild, each of the

society was to contribute half a marc; for a ceorl, two orae (perhaps ten

shillings); for a Welshman, one. If however this act was committed

wantonly, the fellow had no right to call on the society for

contribution. If one fellow killed another, he was to pay the legal

weregild to his kindred, and also eight pounds to the society. Harsh

words used by one fellow towards another, or even towards a stranger,

incurred a fine. No one was to eat or drink in the company of one who

had killed his brother fellow, unless in the presence of the king,

bishop, or alderman. Dissertatio Epistolaris, p. 21.

We find in Wilkins's Anglo-Saxon Laws, p. 65, a number of ordinances

sworn to by persons both of noble and ignoble rank (ge eorlisce ge

ceorlisce), and confirmed by king Athelstan. These are in the nature of

by-laws for the regulation of certain societies that had been formed for

the preservation of public order. Their remedy was rather violent: to

kill and seize the effects of all who should rob any member of the

association. This property, after deducting the value of the things

stolen, was to be divided into two parts; one given to the criminal's

wife if not an accomplice, the other shared between the king and the

society.

In another fraternity among the clergy and laity of Exeter every fellow

was entitled to a contribution in case of taking a journey, or if his

house was burned. Thus they resembled, in some degree, our friendly

societies; and display an interesting picture of manners, which has

induced me to insert this note, though not greatly to the present

purpose. See more of the Anglo-Saxon guilds in Turner's History, vol.

ii. p. 102. Societies of the same kind, for purposes of religion,

charity, or mutual assistance, rather than trade, may be found long

afterwards. Blomefield's Hist. of Norfolk, vol. iii. p. 494.

[47] See a grant from Turstin, archbishop of York, in the reign of Henry

I., to the burgesses of Beverley, that they may have their _hanshus_

(i.e. guildhall) like those of York, et ibi sua statuta pertractent ad

honorem Dei, &c. Rymer, t. i. p. 10, edit. 1816.

[48] Madox, Firma Burgi, p. 189.

[49] Idem, passim. A few of an earlier date may be found in the new

edition of Rymer.

[50] Lyttelton's History of Henry II., vol. ii. p. 170. Macpherson's

Annals of Commerce, vol. i. p. 331.

[51] Macpherson, p. 245.

[52] Id. p. 282.

[53] Cives Lundinenses, et pars nobilium qui eo tempore consistebant

Lundoniae, Clitonem Eadmundum unanimi consensu in regem levavere. p. 249.

[54] Chron. Saxon. p. 154. Malmsbury, p. 76. He says the people of

London were become almost barbarians through their intercourse with the

Danes; propter frequentem convictum.

[55] Londinenses, qui sunt quasi optimates pro magnitudine civitatis in

Anglia. Malmsb. p. 189. Thus too Matthew Paris: cives Londinenses, quos

propter civitatis dignitatem et civium antiquam libertatem Barones

consuevimus appellare. p. 744. And in another place: totius civitatis

cives, quos barones vocant. p. 835. Spelman says that the magistrates of

several other towns were called barons. Glossary, Barones de London.

A singular proof of the estimation in which the citizens of London held

themselves in the reign of Richard I. occurs in the Chronicle of Jocelyn

de Brakelonde (p. 56--Camden Society, 1840). They claimed to be free

from toll in every part of England, and in every jurisdiction, resting

their immunity on the antiquity of London (which was coeval, they said,

with Rome), and on its rank as metropolis of the kingdom. Et dicebant

cives Lundonienses fuisse quietos de theloneo in omni foro, et semper et

ubique, per totam Angliam, a tempore quo Roma primo fundata fuit, et

civitatem Lundoniae, eodem tempore fundatam, talem debere habere

libertatem per totam Angliam, et ratione civitatis privilegiatae quae olim

metropolis fuit et caput regni, et ratione antiquitatis. Palgrave

inclines to think that London never formed part of any kingdom of the

Heptarchy. Introduction to Rot. Cur. Regis. p. 95. But this seems to

imply a republican city in the midst of so many royal states, which

seems hardly probable. Certainly it seems strange, though I cannot

explain it away, that the capital of England should have fallen, as we

generally suppose, to the small and obscure kingdom of Essex.

Winchester, indeed, may be considered as having become afterwards the

capital during the Anglo-Saxon monarchy, so far as that it was for the

most part the residence of our kings. But London was always more

populous.

[56] Drake, the historian of York, maintains that London was less

populous, about the time of the Conquest, than that city; and quotes

Hardynge, a writer of Henry V.'s age, to prove that the interior part of

the former was not closely built. Eboracum, p. 91. York however does not

appear to have contained more than 10,000 inhabitants at the accession

of the Conqueror; and the very exaggerations as to the populousness of

London prove that it must have far exceeded that number. Fitz-Stephen,

the contemporary biographer of Thomas a Becket, tells us of 80,000 men

capable of bearing arms within its precincts; where however his

translator, Pegge, suspects a mistake of the MS. in the numerals. And

this, with similar hyperboles, so imposed on the judicious mind of Lord

Lyttelton, that, finding in Peter of Blois the inhabitants of London

reckoned at quadraginta millia, he has actually proposed to read

quadringenta. Hist. Henry II., vol. iv. ad finem. It is hardly necessary

to observe that the condition of agriculture and internal communication

would not have allowed half that number to subsist.

The subsidy-roll of 1377, published in the Archaeologia, vol. vii., would

lead to a conclusion that all the inhabitants of London did not even

then exceed 35,000. If this be true, they could not have amounted,

probably, to so great a number two or three centuries earlier. But the

numbers given in that document have been questioned as to Norwich upon

very plausible grounds, and seem rather suspicious in the present

instance. [Note V.]

[57] This seditious, or at least refractory character of the Londoners,

was displayed in the tumult headed by William Longbeard in the time of

Richard I., and that under Constantine in 1222, the patriarchs of a long

line of city demagogues. Hoveden, p. 765. M. Paris, p. 154.

[58] Hoveden's expressions are very precise, and show that the share

taken by the citizens of London (probably the mayor and aldermen) in

this measure was no tumultuary acclamation, but a deliberate concurrence

with the nobility. Comes Johannes, et fere omnes episcopi, et comites

Angliae eadem die intraverunt Londonias; et in crastino praedictus

Johannes frater regis, et archiepiscopus Rothomagensis, et omnes

episcopi, et comites et barones, et cives Londonienses cum illis

convenerunt in atrio ecclesiae S. Pauli.... Placuit ergo Johanni fratri

regis, et omnibus episcopis, et comitibus et baronibus regni, et civibus

Londoniarum, quod cancellarius ille deponeretur, et deposuerunt eum, &c.

p. 701.

[59] The reader may consult, for a more full account of the English

towns before the middle of the thirteenth century, Lyttelton's History

of Henry II. vol. ii. p. 174; and Macpherson's Annals of Commerce.

[60] Frequent proofs of this may be found in Madox, Hist. of Exchequer,

c. 17, as well as in Matt. Paris, who laments it with indignation. Cives

Londinenses, contra consuetudinem et libertatem civitatis, quasi servi

ultimae conditionis, non sub nomine aut titulo liberi adjutorii, sed

tallagii, quod multum eos angebat, regi, licet inviti et renitentes,

numerare sunt coacti. p. 492. Heu ubi est Londinensis, toties empta,

toties concessa, toties scripta, toties jurata libertas! &c. p. 627. The

king sometimes suspended their market, that is, I suppose, their right

of toll, till his demands were paid.

[61] These writs are not extant, having perhaps never been returned; and

consequently we cannot tell to what particular places they were

addressed. It appears however that the assembly was intended to be

numerous; for the entry runs: scribitur civibus Ebor, civibus Lincoln,

et caeteris burgis Angliae. It is singular that no mention is made of

London, which must have had some special summons. Rymer, t. i. p. 803.

Dugdale, Summonitiones ad Parliamentum, p. 1.

[62] It would ill repay any reader's diligence to wade through the vapid

and diluted pages of Tyrrell; but whoever would know what can be best

pleaded for a higher antiquity of our present parliamentary constitution

may have recourse to Hody on Convocations, and Lord Lyttelton's History

of Henry II. vol. ii. p. 276, and vol. iv. p. 79-106. I do not conceive

it possible to argue the question more ingeniously than has been done by

the noble writer last quoted. Whitelocke, in his commentary on the

parliamentary writ, has treated it very much at length, but with no

critical discrimination. [Note VII.]

[63] Madox, Hist. of Exchequer, c. 17.

[64] The only apparent exception to this is in the letter addressed to

the pope by the parliament of 1246; the salutation of which runs thus:

Barones, proceres, et magnates, _ac nobiles portuum maris habitatores_,

necnon et clerus et populus universus, salutem. Matt. Paris, p. 696. It

is plain, I think, from these words, that some of the chief inhabitants

of the Cinque Ports, at that time very flourishing towns, were present

in this parliament. But whether they sat as representatives, or by a

peculiar writ of summons, is not so evident; and the latter may be the

more probable hypothesis of the two.

[65] Thus Matthew Paris tells us that in 1237 the whole kingdom, regni

totius universitas, repaired to a parliament of Henry III. p. 367.

[66] Brady's Introduction to Hist. of England, p. 38.

[67] Convocatis universis Angliae prelatis et magnatibus, necnon

cunctatum regni sui civitatum et burgorum potentioribus. Wykes, in Gale,

XV Scriptores, t. ii. p. 88. I am indebted to Hody on Convocations for

this reference, which seems to have escaped most of our constitutional

writers.

[68] Hoc anno ... convenerunt archiepiscopi, episcopi, comites et

barones, abbates et priores, et de quolibet comitatu quatuor milites, et

de qualibet civitate quatuor. Annales Waverleienses in Gale, t. ii. p.

227. I was led to this passage by Atterbury, Rights of Convocations, p.

310, where some other authorities less unquestionable are adduced for

the same purpose. Both this assembly and that mentioned by Wykes in 1269

were certainly parliaments, and acted as such, particularly the former,

though summoned for purposes not strictly parliamentary.

[69] The statute of Marlebridge is said to be made convocatis

discretioribus, tam majoribus quam minoribus; that of Westminster

primer, par son conseil, et par l'assentements des archievesques,

evesques, abbes, priors, countes, barons, et tout le comminality de la

terre illonques summones. The statute of Gloucester runs, appelles les

plus discretes de son royaume, auxibien des grandes come des meinders.

These preambles seem to have satisfied Mr. Prynne that the commons were

then represented, though the writs are wanting; and certainly no one

could be less disposed to exaggerate their antiquity. 2nd Register, p.

30.

[70] Brady's Hist. of England, vol. ii. Appendix; Carte, vol. ii. p.

257.

[71] This is commonly denominated the parliament of Acton Burnell; the

clergy and commons having sat in that town, while the barons passed

judgment upon David prince of Wales at Shrewsbury. The towns which were

honoured with the privilege of representation, and may consequently be

supposed to have been at that time the most considerable in England,

were York, Carlisle, Scarborough, Nottingham, Grimsby, Lincoln,

Northampton, Lynn, Yarmouth, Colchester, Norwich, Chester, Shrewsbury,

Worcester, Hereford, Bristol, Canterbury, Winchester, and Exeter. Rymer,

t. ii. p. 247.

"This [the trial and judgment of Llewellin] seems to have been the only

business transacted at Shrewsbury; for the bishops and abbots, and four

knights of each shire, and two representatives of London and nineteen

other trading towns, summoned to meet the same day in parliament, are

said to have sat at Acton Burnell; and thence the law made for the more

easy recovery of the debts of merchants is called the Statute of Acton

Burnell. It was probably made at the request of the representatives of

the cities and boroughs present in that parliament, authentic copies in

the king's name being sent to seven of those trading towns; but it runs

only in the name of the king and his council." Carte, ii. 195, referring

to Rot. Wall. 11 Edw. I. m. 2nd.

As the parliament was summoned to meet at Shrewsbury, it may be presumed

that the Commons adjourned to Acton Burnell. The word "statute" implies

that some consent was given, though the enactment came from the king and

council. It is entitled in the Book of the Exchequer--des Estatus de

Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at

Salopsebur, al parlement prochein apres la fete Seint Michel, l'an del

reigne le Rey Edward, Fitz le Rey Henry, unzime. Report of Lords'

Committee, p. 191. The enactment by the king and council founded on the

consent of the estates was at Acton Burnell. And the Statute of

Merchants, 13 Edw. I., refers to that of the 11th, as made by the king,

a son parlement que il tint a Acton Burnell, and again mentions l'avant

dit statut fait a Acton Burnell. This seems to afford a voucher for what

is said in my text, which has been controverted by a learned

antiquary.[*] It is certain that the lords were at Shrewsbury in their

judicial character condemning Llewellin; but whether they proceeded

afterwards to Acton Burnell, and joined in the statute, is not quite so

clear.

* Archaeological Journal, vol. ii. p. 337, by the Rev. W. Hartshorne.

[72] [Note VI.]

[73] Willis, Notitia Parliamentaria, vol. ii. p. 312; Lyttelton's Hist.

of Hen. II. vol. iv. p. 89.

[74] 6 Ric. II. stat. 2, c. iv.

[75] Rot. Parl. vol. iv. p. 22.

[76] Though such an argument would not be conclusive, it might afford

some ground for hesitation, if the royal burghs of Scotland were

actually represented in their parliament more than half a century before

the date assigned to the first representation of English towns. Lord

Hailes concludes from a passage in Fordun "that as early as 1211

burgesses gave suit and presence in the great council of the king's

vassals; though the contrary has been asserted with much confidence by

various authors." Annals of Scotland, vol. i. p. 139. Fordun's words,

however, so far from importing that they formed a member of the

legislature, which perhaps Lord Hailes did not mean by the quaint

expression "gave suit and presence," do not appear to me conclusive to

prove that they were actually present. Hoc anno Rex Scotiae Willelmus

magnum tenuit consilium. Ubi, petito ab optimatibus auxilio, promiserunt

se daturos decem mille marcas: praeter burgenses regni, qui sex millia

promiserunt. Those who know the brief and incorrect style of chronicles

will not think it unlikely that the offer of 6000 marks by the burgesses

was not made in parliament, but in consequence of separate requisitions

from the crown. Pinkerton is of opinion that the magistrates of royal

burghs might upon this, and perhaps other occasions, have attended at

the bar of parliament with their offers of money. But the deputies of

towns do not appear as a part of parliament till 1326. Hist. of

Scotland, vol. i. p. 352, 371.

[77] [Note VII.]

[78] These expressions cannot appear too strong. But it is very

remarkable that to the parliament of 18 Edward III. the writs appear to

have summoned none of the towns, but only the counties. Willis, Notit.

Parliament. vol. i. Preface, p. 13. Prynne's Register, 3rd part, p. 144.

Yet the citizens and burgesses are once, but only once, named as present

in the parliamentary roll; and there is, in general, a chasm in place of

their names, where the different ranks present are enumerated. Rot.

Parl. vol. ii. p. 146. A subsidy was granted at this parliament; so

that, if the citizens and burgesses were really not summoned, it is by

far the most violent stretch of power during the reign of Edward III.

But I know of no collateral evidence to illustrate or disprove it.

[79] Tallages were imposed without consent of parliament in 17 E. I.

Wykes, p. 117; and in 32 E. I. Brady's Hist. of Eng. vol. ii. In the

latter instance the king also gave leave to the lay and spiritual

nobility to set a tallage on their own tenants. This was subsequent to

the Confirmatio Chartarum, and unquestionably illegal.

[80] Prynne's 2nd Register. It may be remarked that writs of summons to

great councils never ran ad faciendum, but ad tractandum, consulendum et

consentiendum; from which some would infer that faciendum had the sense

of enacting; since statutes could not be passed in such assemblies. Id.

p. 92.

[81] 28 E. I., in Prynne's 4th Register, p. 12; 9 E. II. (a great

council), p. 48.

[82] Brady's Hist. of England, vol. ii. p. 40; Parliamentary History,

vol. i. p. 206; Rot. Parl. t. ii. p. 66.

[83] Carte, vol. ii. p. 451; Parliamentary History, vol. i. p. 234.

[84] Rot. Parl. vol. i. p. 289.

[85] Id. p. 430.

[86] Id. vol. ii. p. 7.

[87] Id. p. 289, 351, 430.

[88] Id. p. 5.

[89] Id. p. 86.

[90] Rot. Parl. vol. i. p. 285.

[91] 4 E. III. c. 14. Annual sessions of parliament seem fully to

satisfy the words, and still more the spirit, of this act, and of 36 E.

III. c. 10; which however are repealed by implication from the

provisions of 6 Will. III. c. 2. But it was very rare under the

Plantagenet dynasty for a parliament to continue more than a year.

It has been observed that this provision "had probably in view the

administration of justice by the king's court in parliament." Report of

L. C. p. 301. And in another place:--"It is clear that the word

parliament in the reign of Edward I. was not used only to describe a

legislative assembly, but was the common appellation of the ordinary

assembly of the king's great court or council; and that the legislative

assembly of the realm, composed generally, in and after the 23rd of

Edward I., of lords spiritual and temporal, and representatives of the

commons, was usually convened to meet the king's council in one of these

parliaments." p. 171.

Certainly the commons could not desire to have an annual parliament in

order to make new statutes, much less to grant subsidies. It was,

however, important to present their petitions, and to set forth their

grievances to this high court. We may easily reconcile the anxiety so

often expressed by the commons to have frequent sessions of parliament,

with the individual reluctance of members to attend. A few active men

procured these petitions, which the majority could not with decency

oppose, since the public benefit was generally admitted. But when the

writs came down, every pretext was commonly made use of to avoid a

troublesome and ill-remunerated journey to Westminster. For the subject

of annual parliaments see a valuable article by Allen in the 28th volume

of the Edinburgh Review.

[92] This article is so expressed as to make it appear that the

grievance was the high price of commodities. But as this was the natural

effect of a degraded currency, and the whole tenor of these articles

relates to abuses of government, I think it must have meant what I have

said in the text.

[93] Prynne's 2nd Register, p. 68.

[94] Id. p. 75.

[95] Madox, Firma Burgi, p. 6; Rot. Parl. vol. i. p. 449.

[96] Rot. Parl. vol. i. p. 430.

[97] It is however distinctly specified in stat. 7 Edw. II. and in 12

Edw. II., and equivalent words are found in other statutes. Though often

wanting, the testimony to the constitution of parliament is sufficient

and conclusive.

[98] Rot. Parl. vol. i. p. 281.

[99] Walsingham, p. 97. The Lords' committee "have found no evidence of

any writ issued for election of knights, citizens, and burgesses to

attend the same meetings; from the subsequent documents it seems

probable that none were issued, and that the parliament which assembled

at Westminster consisted only of prelates, earls, and barons." p. 259.

We have no record of this parliament; but in that of 5 Edw. II. it is

recited--Come le seizieme jour de Marz l'an de notre regne tierce, a

l'honeur de Dieu et pour le bien de nous et de nostre roiaume, eussions

grante de notre franche volonte, par nos lettres ouvertes aux prelatz,

countes, et barons, _et communes de dit roiaume_, qu'ils puissent eslire

certain persones des prelatz, comtes, et barons, &c. Rot. Parl. i. 281.

The inference therefore of the committee seems erroneous. [Note VIII.]

[100] "La commonaltee" seems in this place to mean the tenants of land,

or commons of the counties, in contradistinction to citizens and

burgesses.

[101] Rot. Parl. vol. ii. p. 66. The Lords' committee observe on this

passage in the roll of parliament, that "the king's right to tallage his

cities, boroughs, and demesnes seems not to have been questioned by the

parliament, though the commissions for setting the tallage were objected

to." p. 305. But how can we believe that after the representatives of

these cities and boroughs had sat, at least at times, for two reigns,

and after the explicit renunciation of all right of tallage by Edward I.

(for it was never pretended that the king could lay a tallage on any

towns which did not hold of himself), there could have been a parliament

which "did not question" the legality of a tallage set without their

consent? The silence of the rolls of parliament would furnish but a poor

argument. But in fact their language is expressive enough. The several

ranks of lords and commons grant the fifteenth penny from the

commonalty, and the tenth from the cities, boroughs, and demesnes of the

king, "that our lord the king may live of his own, and pay for his

expenses, and not aggrieve his people by excessive (outraiouses) prises,

or otherwise." And upon this the king revokes the commission in the

words of the text. Can anything be clearer than that the parliament,

though in a much gentler tone than they came afterwards to assume,

intimate the illegality of the late tallage? As to any other objection

to the commissions, which the committee suppose to have been taken,

nothing appears on the roll.

[102] Rot. Parl. vol. ii. p. 104.

[103] Id.

[104] Rot. Parl. vol. ii. p. 161.

[105] Case of impositions in Howell's State Trials, vol. ii. p. 371-519;

particularly the argument of Mr. Hakewill. Hale's Treatise on the

Customs, in Hargrave's Tracts, vol. i.

Edward III. imposed another duty on cloth exported, on the pretence

that, as the wool must have paid a tax, he had a right to place the

wrought and unwrought article on an equality. The commons remonstrated

against this; but it was not repealed. This took place about 22 E. III.

Hale's Treatise, p. 175.

[106] Rot. Parl. p. 160.

[107] p. 161, 166, 201.

[108] 25 E. III. stat. v. c. 8.

[109] Rot. Parl. vol. ii. p. 366.

[110] Prynne's 4th Register, p. 289.

[111] Rot. Parl. p. 304.

[112] Rot. Parl. p. 310. In the mode of levying subsidies a remarkable

improvement took place early in the reign of Edward III. Originally two

chief taxors were appointed by the king for each county, who named

twelve persons in every hundred to assess the moveable estate of all

inhabitants according to its real value. But in 8 E. III., on complaint

of parliament that these taxors were partial, commissioners were sent

round to compound with every town and parish for a gross sum, which was

from thenceforth the fixed quota of subsidy, and raised by the

inhabitants themselves. Brady on Boroughs, p. 81.

[113] Laws appear to have been drawn up, and proposed to the two houses

by the king, down to the time of Edward I. Hale's Hist. of Common Law,

p. 16.

Sometimes the representatives of particular places address separate

petitions to the king and council; as the citizens of London, the

commons of Devonshire, &c. These are intermingled with the general

petitions, and both together are for the most part very numerous. In the

roll of 50 Edw. III. they amount to 140.

[114] Rot. Parl. p. 239.

[115] Rot. Parl. p. 113.

[116] p. 280.

[117] "If there be any difference between an ordinance and a statute, as

some have collected, it is but only this, that an ordinance is but

temporary till confirmed and made perpetual, but a statute is perpetual

at first, and so have some ordinances also been." Whitelocke on

Parliamentary Writ, vol. ii. p. 297. See Rot. Parl. vol. iii. p. 17;

vol. iv. p. 35.

[118] These may be found in Willis's Notitia Parliamentaria. In 28 E. I.

the universities were summoned to send members to a great council in

order to defend the king's right to the kingdom of Scotland. 1 Prynne.

[119] Rot. Parl. ii. 206.

[120] Rot. Parl. ii 253, 257.

[121] Id. p. 131.

[122] Rot. Parl. ii. p. 128.

[123] Rymer, t. v. p. 282. This instrument betrays in its language

Edward's consciousness of the violent step he was taking; and his wish

to excuse it as much as possible.

[124] The commons in the 17th of Edw. III. petition that the statutes

made two years before be maintained in their force, having granted for

them the subsidies which they enumerate, "which was a great spoiling

(rancon) and grievous charge for them." But the king answered that,

"perceiving the said statute to be against his oath, and to the blemish

of his crown and royalty, and against the law of the land in many

points, he had repealed it. But he would have the articles of the said

statute examined, and what should be found honourable and profitable to

the king and his people put into a new statute, and observed in future."

Rot. Parl. ii. 139. But though this is inserted among the petitions, it

appears from the roll a little before (p. 139, n. 23), that the statute

was actually repealed by common consent; such consent at least being

recited, whether truly or not.

[125] Rymer, t. v. p. 165.

[126] p. 148.

[127] 21 E. III. p. 165.

[128] 28 E. III. p. 261.

[129] 28 E. III. p. 295. Carte says, "the lords and commons, giving this

advice separately, declared," &c. Hist. of England, vol. ii. p. 518. I

can find no mention of the commons doing this in the roll of parliament.

[130] Rymer, p. 269.

[131] p. 114.

[132] p. 304.

[133] Most of our general historians have slurred over this important

session. The best view, perhaps, of its secret history will be found in

Lowth's Life of Wykeham; an instructive and elegant work, only to be

blamed for marks of that academical point of honour which makes a fellow

of a college too indiscriminate an encomiast of its founder. Another

modern book may be named with some commendation, though very inferior in

its execution, Godwin's Life of Chaucer of which the duke of Lancaster

is the political hero.

[134] Rymer, p. 322.

[135] Rymer, p. 322.

[136] p. 329.

[137] Anonym. Hist. Edw. III. ad calcem Hemingford, p. 444, 448.

Walsingham gives a different reason, p. 192.

[138] Rot. Parl. p. 374. Not more than six or seven of the knights who

had sat in the last parliament were returned to this, as appears by the

writs in Prynne's 4th Register, p. 302, 311.

[139] Walsingham, p. 200, says pene omnes; but the list published in

Prynne's 4th Register induces me to qualify this loose expression. Alice

Perrers had bribed, he tells us, many of the lords and all the lawyers

of England; yet by the perseverance of these knights she was convicted.

[140] Rot. Parl. vol. ii. p. 374.

[141] vol. iii. p. 12.

[142] Rot. Parl. vol. iii. p. 12

[143] Rot. Parl. p. 35-38.

[144] Id. p. 57.

[145] See p. 47 of this volume.

[146] Nevertheless, the commons repeated it in their schedule of

petitions; and received an evasive answer, referring to an ordinance

made in the first parliament of the king, the application of which is

indefinite. Rot. Parl. p. 82.

[147] p. 73. In Rymer, t. viii. p. 250, the archbishop of York's name

appears among these commissioners, which makes their number sixteen. But

it is plain by the instrument that only fifteen were meant to be

appointed.

[148] Rot. Parl. 5 R. II. p. 100.

[149] Rot. Parl. 5 R. II. p. 104.

[150] The commons granted a subsidy, 7 R. II., to support Lancaster's

war in Castile. R. P. p. 284. Whether the populace changed their opinion

of him I know not. He was still disliked by them two years before. The

insurgents of 1382 are said to have compelled men to swear that they

would obey king Richard and the commons, and that they would accept no

king named John. Walsingham, p. 248.

[151] Walsing. p. 290, 315, 317.

[152] Rot. Parl. 5 R. II. p. 100; 6 R. II. sess. 1, p. 134.

[153] p. 145.

[154] Rot. Parl. 9 R. II. p. 209.

[155] Ib. p. 213. It is however asserted in the articles of impeachment

against Suffolk, and admitted by his defence, that nine lords had been

appointed in the last parliament, viz. 9 R. II., to inquire into the

state of the household, and reform whatever was amiss. But nothing of

this appears in the roll.

[156] Knyghton, in Twysden x. Script. col. 2680.

[157] Upon full consideration, I am much inclined to give credit to this

passage of Knyghton, as to the main facts; and perhaps even the speech

of Gloucester and the bishop of Ely is more likely to have been made

public by them than invented by so jejune an historian. Walsingham

indeed says nothing of the matter; but he is so unequally informed and

so frequently defective, that we can draw no strong inference from his

silence. What most weighs with me is that parliament met on Oct. 1,

1387, and was not dissolved till Nov. 28; a longer period than the

business done in it seems to have required; and also that Suffolk, who

opened the session as chancellor, is styled "darrein chancellor" in the

articles of impeachment against him; so that he must have been removed

in the interval, which tallies with Knyghton's story. Besides, it is

plain, from the famous questions subsequently put by the king to his

judges at Nottingham, that both the right of retiring without a regular

dissolution, and the precedent of Edward II., had been discussed in

parliament, which does not appear anywhere else than in Knyghton.

[158] Rot. Parl. vol. iii. p. 219.

[159] Articles had been exhibited by the chancellor before the peers, in

the seventh of the king, against Spencer, bishop of Norwich, who had led

a considerable army in a disastrous expedition against the Flemings,

adherents to the anti-pope Clement in the schism. This crusade had been

exceedingly popular, but its ill success had the usual effect. The

commons were not parties in this proceeding. Rot. Parl. p 153.

[160] Rot. Parl. p. 221.

[161] Rot. Parl. p. 281.

[162] The judgment against Simon de Burley, one of those who were

executed on this occasion, upon impeachment of the commons, was reversed

under Henry IV.; a fair presumption of its injustice. Rot. Parl. vol.

iii. p. 464.

[163] Rot. Parl. 14 R II. p. 279; 15 R. II. p. 286.

[164] Rot. Parl. 13 R. II. p. 258.

[165] 17 R. II. p. 313.

[166] Rymer, t. vii. p. 583, 659.

[167] Hume has represented this as if the commons had petitioned for the

continuance of sheriffs beyond a year, and grounds upon this mistake

part of his defence of Richard II. (Note to vol. ii. p. 270, 4to. edit.)

For this he refers to Cotton's Abridgment; whether rightly or not I

cannot say, being little acquainted with that inaccurate book, upon

which it is unfortunate that Hume relied so much. The passage from

Walsingham in the same note is also wholly perverted; as the reader will

discover without further observation. An historian must be strangely

warped who quotes a passage explicitly complaining of illegal acts in

order to infer that those very acts were legal.

[168] The church would perhaps have interfered in behalf of Haxey if he

had only received the tonsure. But it seems that he was actually in

orders; for the record calls him Sir Thomas Haxey, a title at that time

regularly given to the parson of a parish. If this be so, it is a

remarkable authority for the clergy's capacity of sitting in parliament.

[169] Rot. Parl. 20 R. II. p. 339. In Henry IV.'s first parliament the

commons petitioned for Haxey's restoration, and truly say that his

sentence was en aneantissement des custumes de la commune, p. 434. His

judgment was reversed by both houses, as having passed de volonte du roy

Richard en contre droit et la course quel avoit este devant en

parlement. p. 480. There can be no doubt with any man who looks

attentively at the passages relative to Haxey that he was a member of

parliament; though this was questioned a few years ago by the committee

of the house of commons, who made a report on the right of the clergy to

be elected; a right which, I am inclined to believe, did exist down to

the Reformation, as the grounds alleged for Nowell's expulsion in the

first, of Mary, besides this instance of Haxey conspire to prove, though

it has since been lost by disuse.

[170] This assembly, if we may trust the anonymous author of the Life of

Richard II., published by Hearne, was surrounded by the king's troops.

p. 133.

[171] Rot. Parl, 21 R. II. p. 347.

[172] 21 R. II. p. 369.

[173] 13 R. II. p. 256.

[174] This proceeding was made one of the articles of charge against

Richard in the following terms: Item, in parliamento ultimo celebrato

apud Salopiam, idem rex proponens opprimere populum suum procuravit

subtiliter et fecit concedi, quod potestas parliamenti de consensu

omnium statuum regni sui remaneret apud quasdam certas personas ad

terminandum, dissoluto parliamento, certas petitiones in eodem

parliamento porrectas protunc minime expeditas. Cujus concessionis

colore personae sic deputatae processerunt ad alia generaliter

parliamentum illud tangentia; et hoc de voluntate regis; in derogationem

status parliamenti, et in magnum incommodum totius regni et perniciosum

exemplum. Et ut super factis eorum hujusmodi aliquem colorem et

auctoritatem viderentur habere, rex fecit rotulos parliamenti pro voto

suo mutari et deleri, contra effectum consensionis praedictae. Rot. Parl.

1 H. IV. vol. iii. p. 418. Whether the last accusation, of altering the

parliamentary roll, be true or not, there is enough left in it to prove

everything I have asserted in the text. From this it is sufficiently

manifest how unfairly Carte and Hume have drawn a parallel between this

self-deputed legislative commission and that appointed by parliament to

reform the administration eleven years before.

[175] Rot. Parl. p. 372, 385.

[176] Besides the contemporary historians, we may read a full narrative

of these proceedings in the Rolls of Parliament, vol. iii. p. 382. It

appears that Mowbray was the most offending party, since, independently

of Hereford's accusation, he is charged with openly maintaining the

appeals made in the false parliament of the eleventh of the king. But

the banishment of his accuser was wholly unjustifiable by any motives

that we can discover. It is strange that Carte should express surprise

at the sentence upon the duke of Norfolk, while he seems to consider

that upon Hereford as very equitable. But he viewed the whole of this

reign, and of those that ensued, with the jaundiced eye of Jacobitism.

[177] Rot. Parl. 1 H. IV. p. 420, 426; Walsingham, p. 353, 357;

Otterburn, p. 199; Vita Ric. II. p. 147.

[178] It is fair to observe that Froissart's testimony makes most in

favour of the king, or rather against his enemies, where it is most

valuable; that is, in his account of what he heard in the English court

in 1395, 1. iv. c. 62, where he gives a very indifferent character of

the duke of Gloucester. In general this writer is ill-informed of

English affairs, and undeserving to be quoted as an authority.

[179] Rot. Parl. p. 423.

[180] If proof could be required of anything so self-evident as that

these assemblies consisted of exactly the same persons, it may be found

in their writs of expenses, as published by Prynne, 4th Register, p.

450.

[181] 2 R. II. p. 56.

[182] It is positively laid down by the asserters of civil liberty, in

the great case of impositions (Howell's State Trials, vol. ii. p. 443,

507), that no precedents for arbitrary taxation of exports or imports

occur from the accession of Richard II. to the reign of Mary.

[183] 2 R. II. p. 62. This did not find its way to the statute-book.

[184] Rymer, t. vii. p. 544.

[185] Carte, vol. ii. p. 640. Sir M. Hale observes that he finds no

complaints of illegal impositions under the kings of the house of

Lancaster. Hargrave's Tracts, vol. i. p. 184.

[186] Rymer, t. viii. p. 412, 488.

[187] Rot. Parl. vol. iv. p. 216.

[188] Id. p. 301.

[189] Id. p. 302.

[190] Id. vol. iii. p. 546.

[191] Id. p. 568.

[192] Rot. Parl. vol. iii. p. 453.

[193] Id. vol. iv. p. 63.

[194] Walsingham, p. 379.

[195] Walsingham, p. 210. Ruffhead observes in the margin upon this

statute, 8 R. II. c. 3, that it is repealed, but does not take notice

what sort of repeal it had.

[196] 15 R. II. p. 285. See, too, 16 R. II. p. 301, where the same power

is renewed in H. IV.'s parliaments.

[197] 13 H. IV. p. 643.

[198] Rot. Parl. v. 4 H. V. p. 6, 9.

[199] 5 R. II. stat. 2, c. 5; Rot. Parl. 6 R. II. p. 141. Some other

instances of the commons attempting to prevent these unfair practices

are adduced by Ruffhead, in his preface to the Statutes, and in Prynne's

preface to Cotton's Abridgment of the Records. The act 13 R. II. stat.

1, c. 15, that the king's castles and gaols which had been separated

from the body of the adjoining counties should be reunited to them, is

not founded upon any petition that appears on the roll; and probably, by

making search, other instances equally flagrant might be discovered.

[200] There had been, however, a petition of the commons on the same

subject, expressed in very general terms, on which this terrible

superstructure might artfully be raised. p. 474.

[201] p. 626.

[202] We find a remarkable petition in 8 H. IV., professedly aimed

against the Lollards, but intended, as I strongly suspect, in their

favour. It condemns persons preaching against the catholic faith or

sacraments to imprisonment till the next parliament, where they were to

abide such judgment as should be rendered _by the king and peers of the

realm_. This seems to supersede the burning statute of 2 H. IV., and the

spiritual cognizance of heresy. Rot. Parl. p. 583. See, too, p. 626. The

petition was expressly granted; but the clergy, I suppose, prevented its

appearing on the statute roll.

[203] Rot. Parl. vol iii. p. 102.

[204] Rot. Parl. vol. iv. p. 22. It is curious that the authors of the

Parliamentary History say that the roll of this parliament is lost, and

consequently suppress altogether this important petition. Instead of

which they give, as their fashion is, impertinent speeches out of

Holingshed, which are certainly not genuine, and would be of no value if

they were so.

[205] Henry VI. and Edward IV. in some cases passed bills with sundry

provisions annexed by themselves. Thus the act for resumption of grants,

4 E. IV., was encumbered with 289 clauses in favour of so many persons

whom the king meant to exempt from its operation; and the same was done

in other acts of the same description. Rot. Parl. vol. v. p. 517.

[206] The variations of each statute, as now printed, from the

parliamentary roll, whether in form or substance, are noticed in

Cotton's Abridgment. It may be worth while to consult the preface to

Ruffhead's edition of the Statutes, where this subject is treated at

some length.

Perhaps the triple division of our legislature may be dated from this

innovation. For as it is impossible to deny that, while the king

promulgated a statute founded upon a mere petition, he was himself the

real legislator, so I think it is equally fair to assert,

notwithstanding the formal preamble of our statutes, that laws brought

into either house of parliament in a perfect shape, and receiving first

the assent of lords and commons, and finally that of the king, who has

no power to modify them, must be deemed to proceed, and derive their

efficacy, from the joint concurrence of all the three. It is said,

indeed, at a much earlier time, that le ley de la terre est fait en

parlement par le roi, et les seigneurs espirituels et temporels, et tout

la communaute du royaume. Rot. Parl. vol. iii. p. 293. But this, I must

allow, was in the violent session of 11 Ric. II., the constitutional

authority of which is not to be highly prized.

[207] 8 H. V. vol. iv. p. 127.

[208] The house of commons thanked the king for pardoning

Northumberland, whom, as it proved, he had just cause to suspect. 5 H.

IV. p. 525.

[209] 5 H. IV. p. 505.

[210] Rot. Parl. vol. iii. p. 529, 568, 573.

[211] p. 547.

[212] 13 H. IV. p 624.

[213] Rot. Parl. 8 H. IV. p. 585.

[214] 13 H. IV. p. 648, 658.

[215] Rot. Parl. vol. iii. p. 549, 568, 574, 611.

[216] This passage was written before I was aware that the same opinion

had been elaborately maintained by Mr. Luders, in one of his valuable

essays upon points of constitutional history.

[217] Rot. Parl. 8 H. V. vol. iv. p. 125.

[218] p. 128.

[219] p. 130.

[220] 7 R. II. vol. iii. p. 170.

[221] p. 215.

[222] 7 R. II. p. 315.

[223] 4 H. V. vol. iv. p. 98.

[224] p. 135.

[225] Rot. Parl. 4 H. V. vol. iv. p. 211, 242, 277.

[226] p. 371.

[227] 23 H. VI. vol. v. p. 102. There is rather a curious instance in 3

H. VI. of the jealousy with which the commons regarded any proceedings

in parliament where they were not concerned. A controversy arose between

the earls marshal and of Warwick respecting their precedence; founded

upon the royal blood of the first, and long possession of the second. In

this the commons could not affect to interfere judicially; but they

found a singular way of meddling, by petitioning the king to confer the

dukedom of Norfolk on the earl marshal. vol. iv. p. 273.

[228] Rot. Parl. 1 H. VI. p. 189; 3 K. VI. p. 292; 8 H. VI. p. 343.

[229] vol. v. 18 H. VI. p. 17.

[230] 28 H. VI. p. 185.

[231] Rot. Parl. vol. iii. p. 430, 449.

[232] Rot. Parl. 28 H. VI. vol. v. p. 176.

[233] If this were to rest upon antiquity of precedent, one might be

produced that would challenge all competition. In the laws of Ethelbert,

the first Christian king of Kent, at the end of the sixth century, we

find this provision: "If the king call his people to him (i.e. in the

witenagemot), and any one does an injury to one of them, let him pay a

fine." Wilkins, Leges Anglo-Saxon. p. 2.

[234] Hatsell, vol. i. p. 12.

[235] Rot. Parl. 5 H. IV. p. 541.

[236] The clergy had got a little precedence in this. An act passed 8 H.

VI. c. 1, granting privilege from arrest for themselves and servants on

their way to convocation.

[237] Rot. Parl. vol. iv. p. 357.

[238] vol. v. p. 374.

[239] Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29.

[240] Upon this subject the reader should have recourse to Hatsell's

Precedents, vol. i. chap. 1.

[241] Rot. Parl. vol. v. p. 337; W. Worcester, p. 415. Mr. Hatsell seems

to have overlooked this case, for he mentions that of Strickland, in

1571, as the earliest instance of the crown's interference with freedom

of speech in parliament. vol. i. p. 85.

[242] This parliament sat at Gloucester.

[243] Rot. Parl. vol. iii. p. 611.

[244] A notion is entertained by many people, and not without the

authority of some very respectable names, that the king is one of the

three estates of the realm, the lords spiritual and temporal forming

together the second, as the commons in parliament do the third. This is

contradicted by the general tenor of our ancient records and law-books;

and indeed the analogy of other governments ought to have the greatest

weight, even if more reason for doubt appeared upon the face of our own

authorities. But the instances where the three estates are declared or

implied to be the nobility, clergy, and commons, or at least their

representatives in parliament, are too numerous for insertion. This land

standeth, says the Chancellor Stillington, in 7th Edward IV., by three

states, and above that one principal, that is to wit, lords spiritual,

lords temporal, and commons, and over that, state royal, as our

sovereign lord the king. Rot. Parl. vol. v. p. 622. Thus, too, it is

declared that the treaty of Staples in 1492 was to be confirmed per tres

status regni Angliae rite et debite convocatos, videlicet per prelatos et

clerum, nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508.

I will not, however, suppress one passage, and the only instance that

has occurred in my reading, where the king does appear to have been

reckoned among the three estates. The commons say, in the 2nd of Henry

IV., that the states of the realm may be compared to a trinity, that is,

the king, the lords spiritual and temporal, and the commons. Rot. Parl.

vol. iii. p. 459. In this expression, however, the sense shows that by

estates of the realm they meant members, or necessary parts, of the

parliament.

Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length,

that the three estates are king, lords, and commons, which seems to have

been a current doctrine among the popular lawyers of the seventeenth

century. His reasoning is chiefly grounded on the baronial tenure of

bishops, the validity of acts passed against their consent, and other

arguments of the same kind; which might go to prove that there are only

at present two estates, but can never turn the king into one.

The source of this error is an inattention to the primary sense of the

word estate (status), which means an order or condition into which men

are classed by the institutions of society. It is only in a secondary,

or rather an elliptical application, that it can be referred to their

representatives in parliament or national councils. The lords temporal,

indeed, of England are identical with the estate of the nobility; but

the house of commons is not, strictly speaking, the estate of

commonalty, to which its members belong, and from which they are

deputed. So the whole body of the clergy are properly speaking one of

the estates, and are described as such in the older authorities, 21 Ric.

II. Rot. Parl. vol. iii. p. 348, though latterly the lords spiritual in

parliament acquired, with less correctness, that appellation. Hody on

Convocations, p. 426. The bishops, indeed, may be said, constructively,

to represent the whole of the clergy, with whose grievances they are

supposed to be best acquainted, and whose rights it is their peculiar

duty to defend. And I do not find that the inferior clergy had any other

representation in the cortes of Castile and Aragon, where the

ecclesiastical order was always counted among the estates of the realm.

[245] Rot. Parl. vol. iii. p. 623.

[246] Rot. Parl. 5 R. II. p. 100.

[247] Stat. 2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7.

[248] Rot. Parl. vol. v. p. 7. It appears by a case in the Year Book of

the 33rd of Henry VI., that, where the lords made only some minor

alterations in a bill sent up to them from the commons, even if it

related to a grant of money, the custom was not to remand it for their

assent to the amendment. Brooke's Abridgment: Parliament. 4. The passage

is worth extracting, in order to illustrate the course of proceeding in

parliament at that time. Case fuit que Sir J. P. fuit attaint de certeyn

trespas par acte de parliament dont les commons furent assentus, que sil

ne vient eins per tiel jour que il forfeytera tiel summe, et les

seigneurs done plus longe jour, et le bil nient rebaile al commons

arrere; et per Kirby, clerk des roles del parliament, l'use del

parliament est, que si bil vient primes a les commons, et ils passent

ceo, il est use d'endorser ceo en tiel forme, Soit bayle as seigniors;

et si les seigniors _ne le roy_ ne alteront le bil, donques est use a

liverer ceo al clerke del parliamente destre enrol saunz endorser

ceo.... Et si les seigniors volent alter un bil in ceo que poet estoyer

ore le bil, ils poyent saunz remandre ceo al commons, come si les

commons graunte poundage, pur quatuor ans, et les grantent nisi par deux

ans, ceo ne serra rebayle al commons; mes si les commons grauntent nisi

pur deux ans, et les seigneurs pur quatre ans, la ceo serra reliver al

commons, et en cest case les seigniors doyent faire un sedule de lour

intent, ou d'endorser le bil en ceste forme, Les seigneurs ceo assentent

pur durer par quatuor ans; et quant les commons ount le bil arrere, et

ne volent assenter a ceo, ceo ne poet estre un actre; mes si les commons

volent assenter, donques ils indorse leur respons sur le mergent ne

basse deins le bil en tiel forme, Les commons sont assentans al sedul

des seigniors, a mesme cesty bil annexe, et donques sera bayle ad clerke

del parliament, ut supra. Et si un bil soit primes liver al seigniors,

et le bil passe eux, ils ne usont de fayre ascun endorsement, mess de

mitter le bil as commons; et donques, si le bil passe les commons, il

est use destre issint endorce, Les commons sont assentants; et ceo prove

que il ad passe les seigniors devant, et lour assent est a cest passer

del seigniors; et ideo cest acte supra nest bon, pur ceo que ne fuit

rebaile as commons.

A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's

edit.), that a subsidy granted by the commons without assent of the

peers is good enough. This cannot surely have been law at that time.

[249] Rot. Parl. vol. iii. p. 244.

[250] Coke's 4th Institute, p. 15.

[251] Glanvil's Reports of Elections, edit. 1774; Introduction, p. 12.

[252] 4 Prynne, p. 261.

[253] Glanvil's Reports, ibid. from Prynne.

[254] Glanvil's Reports, ibid. from Prynne.

[255] Id. ibid. and Rot. Parl. vol. iii. p. 530.

[256] Rot. Parl. vol. v. p. 7.

[257] 3 Prynne's Register, p. 187. This hypothesis, though embraced by

Prynne, is, I confess, much opposed to general opinion; and a very

respectable living writer treats such an interpretation of the statute 7

H. IV. as chimerical. The words cited in the text, "as others," mean

only, according to him, suitors not duly summoned. Heywood on Elections,

vol. i. p. 20. But, as I presume, the summons to freeholders was by

general proclamation; so that it is not easy to perceive what difference

there could be between summoned and unsummoned suitors. And if the words

are supposed to glance at the private summonses to a few friends, by

means of which the sheriffs were accustomed to procure a clandestine

election, one can hardly imagine that such persons would be styled "duly

summoned." It is not unlikely, however, that these large expressions

were inadvertently used, and that they led to that inundation of voters

without property which rendered the subsequent act of Henry VI.

necessary. That of Henry IV. had itself been occasioned by an opposite

evil, the close election of knights by a few persons in the name of the

county.

Yet the consequence of the statute of Henry IV. was not to let in too

many voters, or to render elections tumultuous, in the largest of

English counties, whatever it might be in others. Prynne has published

some singular sheriff's indentures for the county of York, all during

the interval between the acts of Henry IV. and Henry VI., which are

sealed by a few persons calling themselves the attorneys of some peers

and ladies, who, as far as appears, had solely returned the knights of

that shire. 3 Prynne, p. 152. What degree of weight these anomalous

returns ought to possess I leave to the reader.

[258] The majority of prescriptive boroughs have prescriptive

corporations, which carry the legal, which is not always the moral,

presumption of an original charter. But "many boroughs and towns in

England have burgesses by prescription, that never were incorporated."

Ch. J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders

thinks, I know not how justly, that in the age of Edward I., which is

most to our immediate purpose, "there were not perhaps thirty

corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I

must allow that, in the opinion of many sound lawyers, the

representation of unchartered, or at least, unincorporated boroughs was

rather a _real_ privilege, and founded upon tenure, than one arising out

of their share in public contributions. Ch. J. Holt in Ashby v. White, 2

Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is

very obscure; and perhaps the more so, because the learning directed

towards it has more frequently been that of advocates pleading for their

clients than of unbiassed antiquaries. If this be kept in view, the

lover of constitutional history will find much information in several of

the reported cases on controverted elections; particularly those of

Tewksbury and Liskeard, in Peckwell's Reports, vol. i.

[259] Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in

Peckwell's Reports, vol. i. p. 178.

[260] Littleton, s. 162, 163.

[261] Brady, p. 97.

[262] Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even

argues that this power of omitting ancient boroughs was legally vested

in the sheriff before the 5th of Richard II.; and though the language of

that act implies the contrary of this position, yet it is more than

probable that most of our parliamentary boroughs by prescription,

especially such as were then unincorporated, are indebted for their

privileges to the exercise of the sheriff's discretion; not founded on

partiality, which would rather have led him to omit them, but on the

broad principle that they were sufficiently opulent and important to

send representatives to parliament.

[263] Willis, Notitia Parliamentaria, vol. i. preface, p. 35.

[264] p. 117.

[265] It is a perplexing question whether freeholders in socage were

liable to contribute towards the wages of knights; and authorities might

be produced on both sides. The more probable supposition is, that they

were not exempted. See the various petitions relating to the payment of

wages in Prynne's fourth Register. This is not unconnected with the

question as to their right of suffrage. See p. 115 of this volume.

Freeholders within franchises made repeated endeavours to exempt

themselves from payment of wages. Thus in 9 H. IV. it was settled by

parliament that, to put an end to the disputes on this subject between

the people of Cambridgeshire and those of the Isle of Ely, the latter

should pay 200_l._ and be quit in future of all charges on that account.

Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that

franchise seem to have purchased the right of suffrage, which they still

enjoy, though not, I suppose, suitors to the county-court. In most other

franchises, and in many cities erected into distinct counties, the same

privilege of voting for knights of the shire is practically exercised;

but whether this has not proceeded as much from the tendency of

returning officers and of parliament to favour the right of election in

doubtful cases, as from the merits of their pretensions, may be a

question.

[266] The wages of knights and burgesses were first reduced to this

certain sum by the writs De levandis expensis, 16 E. II. Prynne's fourth

Register, p. 53. These were issued at the request of those who had

served, after the dissolution of parliament, and included a certain

number of days, according to the distance of the county whence they

came, for going and returning. It appears by these that thirty-five or

forty miles were reckoned a day's journey; which may correct the

exaggerated notions of bad roads and tardy locomotion that are sometimes

entertained. See Prynne's fourth Register, and Willis's Notitia

Parliamentaria, passim.

The latest entries of writs for expenses in the close rolls are of 2 H.

V.; but they may be proved to have issued much longer; and Prynne traces

them to the end of Henry VIII.'s reign, p. 495. Without the formality of

this writ a very few instances of towns remunerating their burgesses for

attendance in parliament are known to have occurred in later times.

Andrew Marvel is commonly said to have been the last who received this

honourable salary. A modern book asserts that wages were paid in some

Cornish boroughs as late as the eighteenth century. Lysons's Cornwall,

preface, p. xxxii; but the passage quoted in proof of this is not

precise enough to support so unlikely a fact.

[267] 3 Prynne, p. 165.

[268] 4 Prynne, p. 317.

[269] 4 Prynne, p. 320.

[270] 3 Prynne, p. 241.

[271] 5 R. II. stat. ii. c. 4.

[272] Luders's Reports, vol. i. p. 15. Sometimes an elected burgess

absolutely refused to go to parliament, and drove his constituents to a

fresh choice. 3 Prynne, p. 277.

[273] 3 Prynne, p. 252.

[274] 3 Prynne, p. 257, de assensu totius communitatis praedictae

elegerunt R. W.; so in several other instances quoted in the ensuing

pages.

[275] Brady on Boroughs, p. 132, &c. Mr. Allen, than whom no one of

equal learning was ever less inclined to depreciate popular rights,

inclines more than we should expect to the school of Brady in this

point. "There is reason to believe that originally the right of election

in boroughs was vested in the governing part of these communities, or in

a select portion of the burgesses; and that, in the progress of the

house of commons to power and importance, the tendency has been in

general to render the elections more popular. It is certain that for

many years burgesses were elected in the county courts, and apparently

by delegates from the boroughs, who were authorised by their

fellow-burgesses to elect representatives for them in parliament. In the

reigns of James I. and Charles I., when popular principles were in their

greatest vigour, there was a strong disposition in the house of commons

to extend the right of suffrage in boroughs, and in many instances these

efforts were crowned with success." Edin. Rev. xxviii. 145. But an

election by delegates chosen for that purpose by the burgesses at large

is very different from one by the governing part of the community. Even

in the latter case, however, this part had generally been chosen, at a

greater or less interval of time, by the entire body. Sometimes, indeed,

corporations fell into self-election and became close.

[276] Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p.

224, &c.

[277] In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci

in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc

comitatu commorantes, duos homines de comitatu Rutland, de

discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But

this deficiency of actual knights soon became very common. In 19 E. II.

there were twenty-eight members returned from shires who were not

knights, and but twenty-seven who were such. The former had at this time

only two shillings or three shillings a day for their wages, while the

real knights had four shillings. 4 Prynne, p. 53. 74. But in the next

reign their wages were put on a level.

[278] Rot. Parl. vol. ii. p. 310.

[279] Rot. Parl. 1 H. V. c. 1.

[280] See the case of Dublin university in the first volume of

Peckwell's Reports of contested elections. Note D, p. 53. The statute

itself was repealed by 14 G. III. c. 58.

[281] By 23 H. VI. c. 15, none but gentlemen born, generosi a

nativitate, are capable of sitting in parliament as knights of counties;

an election was set aside 39 H. VI. because the person returned was not

of gentle birth. Prynne's third Register. p. 161.

[282] Willis, Notitia Parliamentaria, Prynne's fourth Register, p. 1184.

A letter in that authentic and interesting accession to our knowledge of

ancient times, the Paston collection, shows that eager canvass was

sometimes made by country gentlemen in Edward IV.'s reign to represent

boroughs. This letter throws light at the same time on the creation or

revival of boroughs. The writer tells Sir John Paston, "If ye miss to be

burgess of Malden, and my lord chamberlain will, ye may be in another

place; there be a dozen towns in England that choose no burgess, which

ought to do it: ye may be set in for one of those towns an' ye be

friended." This was in 1472. vol. ii. p. 107.

[283] Glanvil's Reports of Elections, edit. 1774, Introduction, p. xii.

[284] Prynne's third Register, p. 171.

[285] 28 E. I. c. 8; 9 E. II. It is said that the sheriff was elected by

the people of his county in the Anglo-Saxon period; no instance of this

however, according to lord Lyttelton, occurs after the Conquest.

Shrievalties were commonly sold by the Norman kings. Hist. of Henry II.

vol. ii. p. 921.

[286] Vita Ricardi II. p. 85.

[287] Otterbourne, p. 191. He says of the knights returned on this

occasion, that they were not elected per communitatem, ut mos exigit,

sed per regiam voluntatem.

[288] Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.

[289] Prynne's second Reg. p. 450.

[290] vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.

[291] Upon this dry and obscure subject of inquiry, the nature and

constitution of the house of lords during this period, I have been much

indebted to the first part of Prynne's Register, and to West's Inquiry

into the Manner of creating Peers; which, though written with a party

motive, to serve the ministry of 1719 in the peerage bill, deserves, for

the perspicuity of the method and style, to be reckoned among the best

of our constitutional dissertations.

[292] Baronies were often divided by descent among females into many

parts, each retaining its character as a fractional member of a barony.

The tenants in such case were said to hold of the king by the third,

fourth, or twentieth part of a barony, and did service or paid relief in

such proportion.

[293] Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. 28, 33.

That a baron could only be tried by his fellow barons was probably a

rule as old as the trial per pais of a commoner. In 4 E. III. Sir Simon

Bereford having been accused before the lords in parliament of aiding

and advising Mortimer in his treasons, they declared with one voice that

he was not their peer; wherefore they were not bound to judge him as a

peer of the land; but inasmuch as it was notorious that he had been

concerned in usurpation of royal powers and murder of the liege lord (as

they styled Edward II.), the lords, as judges of parliament, by assent

of the king in parliament, awarded and adjudged him to be hanged. A like

sentence with a like protestation was passed on Mautravers and Gournay.

There is a very remarkable anomaly in the case of Lord Berkley, who,

though undoubtedly a baron, his ancestors having been summoned from the

earliest date of writs, put himself on his trial in parliament, by

twelve knights of the county of Gloucester. Rot. Parl. vol. ii. p. 53;

Rymer, t. iv. p. 734.

[294] Prynne, p. 142, &c.; West's Inquiry.

[295] Prynne, p. 141.

[296] It is worthy of observation that the spiritual peers summoned to

parliament were in general considerably more numerous than the temporal.

Prynne, p. 114. This appears, among other causes, to have saved the

church from that sweeping reformation of its wealth, and perhaps of its

doctrines, which the commons were thoroughly inclined to make under

Richard II. and Henry IV. Thus the reduction of the spiritual lords by

the dissolution of monasteries was indispensably required to bring the

ecclesiastical order into due subjection to the state.

[297] Perhaps it can hardly be said that the king's prerogative

compelled the party summoned, not being a tenant by barony, to take his

seat. But though several spiritual persons appear to have been

discharged from attendance on account of their holding nothing by

barony, as has been justly observed, yet there is, I believe, no

instance of any layman's making such an application. The terms of the

ancient writ of summons, however, in fide et _homagio_ quibus nobis

tenemini, afford a presumption that a feudal tenure was, in construction

of law, the basis of every lord's attendance in parliament. This form

was not finally changed to the present, in fide et _ligeantia_, till the

46th of Edw. III. Prynne's first Register, p. 206.

[298] Collins's Proceedings on Claims of Baronies, p. 24 and 73.

[299] Prynne speaks of "the alienation of baronies by sale, gift, or

marriage, after which the new purchasers were summoned instead," as if

it frequently happened. First Register, p. 239. And several instances

are mentioned in the Bergavenny case (Collins's Proceedings, p. 113)

where, land-baronies having been entailed by the owners on their heirs

male, the heirs general have been excluded from inheriting the dignity.

[300] Prynne's first Register, p. 237. This must be understood to mean

that no new families were summoned; for the descendants of some who are

not supposed to have held land-baronies may constantly be found in later

lists. [Note IX.]

[301] West's Inquiry. Prynne, who takes rather lower ground than West,

and was not aware of Sir Henry de Bromflete's descent, admits that a

writ of summons to any one, naming him baron, or dominus, as Baroni de

Greystoke, domino de Furnival, did give an inheritable peerage; not so a

writ generally worded, naming the party knight or esquire, unless he

held by barony.

[302] Lord Abergavenny's case, 12 Coke's Reports; and Collins's

Proceedings on Claims of Baronies by Writ, p. 61.

[303] Prynne's first Register, p. 232. Elsynge, who strenuously contends

against the writ of summons conferring an hereditary nobility, is of

opinion that the party summoned was never omitted in subsequent

parliaments, and consequently was a peer for life. p. 43. But more

regard is due to Prynne's later inquiries.

[304] Case of Willoughby, Collins, p. 8; of Dacres, p. 41; of

Abergavenny, p. 119. But see the case of Grey de Ruthin, p. 222 and 230,

where the contrary position is stated by Selden upon better grounds.

[305] It seems to have been admitted by Lord Redesdale, in the case of

the barony of L'Isle, that a writ of summons, with sufficient proof of

having sat by virtue of it in the house of lords, did in fact create an

hereditary peerage from the fifth year of Richard II., though he

resisted this with respect to claimants who could only deduce their

pedigree from an ancestor summoned by one of the three Edwards.

Nicolas's Case of Barony of L'Isle, p. 200. The theory, therefore, of

West, which denies peerage by writ even to those summoned in several

later reigns, must be taken with limitation. "I am informed," it is said

by Mr. Hart, _arguendo_, "that every person whose name appears in the

writ of summons of 5 Ric. II. was again summoned to the following

parliament, and their posterity have sat in parliament as peers." p.

233.

[306] Rot. Parl. vol. ii. p. 147, 309; vol. iii. p. 100, 386, 424; vol.

iv. p. 374. Rymer, t. vii. p. 161.

[307] Selden's Works, vol. iii. p. 764. Selden's opinion that bannerets

in the lords' house were the same as barons may seem to call on me for

some contrary authorities, in order to support my own assertion, besides

the passages above quoted from the rolls, of which he would naturally be

supposed a more competent judge. I refer therefore to Spelman's

Glossary, p. 74; Whitelocke on Parliamentary Writ, vol. i. p. 313; and

Elsynge's Method of holding Parliaments, p. 65.

[308] Puis un fut chalenge purce qu'il fut a banniere, et non allocatur;

car s'il soit a banniere, et ne tient pas par baronie, il sera en

l'assise. Year-book 22 Edw. III. fol. 18 a. apud West's Inquiry, p. 22.

[309] Rot. Parl. vol. iv. p. 201.

[310] Pinkerton's Hist. of Scotland, vol. i. p. 357 and 365.

[311] The lords' committee do not like, apparently, to admit that

bannerets were summoned to the house of lords as a distinct class of

peers. "It is observable," they say, "that this statute (5 Ric. II. c.

4) speaks of bannerets as well as of dukes, earls, and barons, as

persons bound to attend the parliament; but it does not follow that

banneret was then considered as a name of dignity distinct from that

honourable knighthood under the king's banner in the field of battle, to

which precedence of all other knights was attributed." p. 342. But did

the committee really believe that all the bannerets of whom we read in

the reigns of Richard II. and afterwards had been knighted at Crecy and

Poictiers? The name is only found in parliamentary proceedings during

comparatively pacific times.

[312] West, whose business it was to represent the barons by writ as

mere assistants without suffrage, cites the writ to them rather

disingenuously, as if it ran vobiscum et cum prelatis, magnatibus ac

proceribus, omitting the important word caeteris. p. 35. Prynne, however,

from whom West has borrowed a great part of his arguments, does not seem

to go the length of denying the right of suffrage to persons so

summoned. First Register, p. 237.

[313] These descended from two persons, each named Geoffrey le Scrope,

chief justices of K.B. and C.B. at the beginning of Edward III.'s reign.

The name of one of them is once found among the barons, but I presume

this to have been an accident, or mistake in the roll; as he is

frequently mentioned afterwards among the judges. Scrope, chief justice

of K.B., was made a _banneret_ in 14 E. III. He was the father of Henry

Scrope of Masham, a considerable person in Edward III. and Richard II.'s

government, whose grandson, Lord Scrope of Masham, was beheaded for a

conspiracy against Henry V. There was a family of Scrupe as old as the

reign of Henry II.; but it is not clear, notwithstanding Dugdale's

assertion, that the Scropes descended from them, or at least that they

held the same lands: nor were the Scrupes barons, as appears by their

paying a relief of only sixty marks for three knights' fees. Dugdale's

Baronage, p. 654.

The want of consistency in old records throws much additional difficulty

over this intricate subject. Thus Scrope of Masham, though certainly a

baron, and tried next year by the peers, is called chevalier in an

instrument of 1 H. V. Rymer, t. ix. p. 13. So in the indictment against

Sir John Oldcastle he is constantly styled knight, though he had been

summoned several times as lord Cobham, in right of his wife, who

inherited that barony. Rot. Parl. vol. iv. p. 107.

[314] Blomefield's Hist, of Norfolk, vol. iii. p. 645 (folio edit).

[315] Rot. Parl. vol. iii. p. 427.

[316] Rot. Parl. vol. ii. p. 290.

[317] vol. iii. p. 209.

[318] Id. p. 263, 264.

[319] vol. iv. p. 17.

[320] Id. p. 401.

[321] West's Inquiry, p. 65. This writer does not allow that the king

possessed the prerogative of creating new peers without consent of

parliament. But Prynne (1st Register, p. 225), who generally adopts the

same theory of peerage as West, strongly asserts the contrary; and the

party views of the latter's treatise, which I mentioned above, should be

kept in sight. It was his object to prove that the pending bill to limit

the numbers of the peerage was conformable to the original constitution.

[322] Hody's History of Convocations, p. 12. Dissertatio de antiqua et

moderna Synodi Anglicani Constitutione, prefixed to Wilkins's Concilia,

t. 1.

[323] 2 Gale, Scriptores Rer. Anglic, t. ii. p. 355; Hody, p. 345.

Atterbury (Rights of Convocations, p. 295, 315) endeavours to show that

the clergy had been represented in parliament from the Conquest as well

as before it. Many of the passages he quotes are very inconclusive; but

possibly there may be some weight in one from Matthew Paris, ad ann.

1247 and two or three writs of the reign of Henry III.

[324] Hody, p. 381; Atterbury's Rights of Convocations, p. 221.

[325] Hody, p. 386; Atterbury, p. 222.

[326] Hody, p. 391.

[327] Gilbert's Hist. of Exchequer, p. 47.

[328] Rot. Parl. vol. i. p. 189; Atterbury, p. 229.

[329] The lower house of convocation, in 1547, terrified at the progress

of reformation, petitioned that, "according to the tenor of the king's

writ, and the ancient customs of the realm, they might have room and

place and be associated with the commons in the nether house of this

present parliament, as members of the commonwealth and the king's most

humble subjects." Burnet's Hist. of Reformation, vol. ii.; Appendix, No.

17.

This assertion that the clergy had ever been associated as one body with

the commons is not borne out by anything that appears on our records,

and is contradicted by many passages. But it is said that the clergy

were actually so united with the commons in the Irish parliament till

the Reformation. Gilbert's Hist. of the Exchequer, p. 57.

[330] Hody, p. 392.

[331] The praemunientes clause in a bishop's writ of summons was so far

regarded down to the Reformation, that proctors were elected, and their

names returned upon the writ; though the clergy never attended from the

beginning of the fifteenth century, and gave their money only in

convocation. Since the Reformation the clause has been preserved for

form merely in the writ. Wilkins, Dissertatio, ubi supra.

[332] Hody, p. 396. 403, &c. In 1314 the clergy protest even against the

recital of the king's writ to the archbishop directing him to summon the

clergy of his province in his letters mandatory, declaring that the

English clergy had not been accustomed, nor ought by right, to be

convoked by the king's authority. Atterbury, p. 230.

[333] Hody, p. 425. Atterbury, p. 42, 233. The latter seems to think

that the clergy of both provinces never actually met in a national

council or house of parliament, under the praemunientes writ, after the

reign of Edward II., though the proctors were duly returned. But Hody

does not go quite so far, and Atterbury had a particular motive to

enhance the influence of the convocation of Canterbury.

[334] Atterbury, p. 46.

[335] Rot. Parl. vol. ii. p. 64, 65.

[336] 18 E. III. stat. 3. Rot. Parl. vol. ii p. 151. This is the

parliament in which it is very doubtful whether any deputies from cities

and boroughs had a place. The pretended statutes were therefore every

way null; being falsely imputed to an incomplete parliament.

[337] Rot. Parl. vol. ii. p. 151.

[338] 25 E. III. stat. 3.

[339] p. 368. The word _they_ is ambiguous; Whitelocke (on Parliamentary

Writ, vol. ii. p. 346) interprets it of the commons: I should rather

suppose it to mean the clergy.

[340] 50 E. III. c. 4 & 5.

[341] Rot. Parl. vol. iii. p. 25. A nostre tres excellent seigneur le

roy supplient humblement ses devotes oratours, les prelats et la clergie

de la province de Canterbirs et d'Everwyk. Stat. 1 Richard II. c. 13,

14, 15. But see Hody, p. 425; Atterbury, p. 329.

[342] Rot. Parl. vol. iii. p. 37.

[343] It might be argued, from a passage in the parliament-roll of 21 R.

II., that the clergy of both provinces were not only present, but that

they were accounted an essential part of parliament in temporal matters,

which is contrary to the whole tenor of our laws. The commons are there

said to have prayed that, "whereas many judgments and ordinances

formerly made in parliament had been annulled _because the estate of

clergy had not been present thereat_, the prelates and clergy might make

a proxy with sufficient power to consent in their name to all things

done in this parliament." Whereupon the spiritual lords agreed to

intrust their powers to Sir Thomas Percy, and gave him a procuration

commencing in the following words: "Nos Thomas Cantuar' et Robertus

Ebor' archiepiscopi, ac praelati _et clerus utriusque provinciae Cantuar'

et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes jus

interessendi in singulis parliamentis_ domini nostri regis et regni

Angliae pro tempore celebrandis, necnon tractandi et expediendi in eisdem

quantum ad singula in instanti parliamento pro statu et honore domini

nostri regis, necnon regaliae suae, ac quiete, pace, et tranquillitate

regni judicialiter justificandis, venerabili viro domino Thomae de Percy

militi, nostram plenarie committimus potestatem." It may be perceived by

these expressions, and more unequivocally by the nature of the case,

that it was the judicial power of parliament which the spiritual lords

delegated to their proxy. Many impeachments for capital offences were

coming on, at which, by their canons, the bishops could not assist. But

it can never be conceived that the inferior clergy had any share in this

high judicature. And, upon looking attentively at the words above

printed in italics, it will be evident that the spiritual lords holding

by barony are the only persons designated; whatever may have been meant

by the singular phrase, as applied to them, clerus utriusque provinciae.

Rot. Parl. vol. iii. p. 348.

[344] Atterbury. p. 346.

[345] 21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. 47) led

me to this act, which I had overlooked.

[346] Rot. Parl. vol. iii. p. 582. Atterbury, p. 61.

[347] The ensuing sketch of the jurisdiction exercised by the king's

council has been chiefly derived from Sir Matthew Hale's Treatise of the

Jurisdiction of the Lords' House in Parliament, published by Mr.

Hargrave.

[348] The words "privy council" are said not to be used till after the

reign of Henry VI.; the former style was "ordinary" or "continual

council." But a distinction had always been made, according to the

nature of the business: the great officers of state, or, as we might now

say, the ministers, had no occasion for the presence of judges or any

lawyers in the secret councils of the crown. They become, therefore, a

council of government, though always members of the _consilium

ordinarium_; and, in the former capacity, began to keep formal records

of their proceedings. The acts of this council though, as I have just

said, it bore as yet no distinguishing name, are extant from the year

1386, and for seventy years afterwards are known through the valuable

publication of Sir Harris Nicolas.

[349] Rot. Parl. vol. iii. p. 84.

[350] Ibid. p. 266.

[351] 25 E. III. stat. 5, c. 4. Probably this fifth statute of the 25th

of Edward III. is the most extensively beneficial act in the whole body

of our laws. It established certainty in treasons, regulated purveyance,

prohibited arbitrary imprisonment and the determination of pleas of

freehold before the council, took away the compulsory finding of

men-at-arms and other troops, confirmed the reasonable aid of the king's

tenants fixed by 3 E. I., and provided that the king's protection should

not hinder civil process or execution.

[352] 28 E. III. c. 3.

[353] 42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295. It is not

surprising that the king's council should have persisted in these

transgressions of their lawful authority, when we find a similar

jurisdiction usurped by the officers of inferior persons. Complaint is

made in the 18th of Richard II. that men were compelled to answer before

_the council of divers lords and ladies_, for their freeholds and other

matters cognizable at common law, and a remedy for this abuse is given

by petition in chancery, stat. 15 R. II. c. 12. This act is confirmed

with a penalty on its contraveners the next year, 16 R. II. c. 2. The

private gaols which some lords were permitted by law to possess, and for

which there was always a provision in their castles, enabled them to

render this oppressive jurisdiction effectual.

[354] Rot. Parl. 17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 H. VI.

vol. iv. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. 403; 15

H. VI. p. 501. To one of these (10 H. VI.), "that none should be put to

answer for his freehold in parliament, nor before any court or council

where such things are not cognizable by the law of the land," the king

gave a denial. As it was less usual to refuse promises of this kind than

to forget them afterwards, I do not understand the motive of this.

[355] Hale's Jurisdiction of Lords' House, p. 46. Coke, 2 Inst. p. 553.

The last author places this a little later. There is a petition of the

commons, in the roll of the 4th of Henry IV. p. 511, that, whereas many

grantees and feoffees in trust for their grantors and feoffers alienate

or charge the tenements granted, _in which case there is no remedy

unless one is ordered by parliament_, that the king and lords would

provide a remedy. This petition is referred to the king's council to

advise of a remedy against the ensuing parliament. It may perhaps be

inferred from hence that the writ of subpoena out of chancery had not

yet been applied to protect the cestui que use. But it is equally

possible that the commons, being disinclined to what they would deem an

illegal innovation, were endeavouring to reduce these fiduciary estates

within the pale of the common law, as was afterwards done by the statute

of uses. [Note X.]

[356] Rot. Parl. vol. i. p. 416.

[357] L. ii. c. 2.

[358] [Note XI.]

[359] This is remarkably expressed in one of the articles agreed in

parliament 8 H. VI. for the regulation of the council. "Item, that alle

the billes that comprehend matters terminable atte the common lawe shall

be remitted ther to be determined; but if so be that the discresion of

the counseill fele to grete myght on that o syde, and unmyght on that

other, or elles other cause resonable yat shal move him." Rot. Parl.

vol. iv. p. 343. Mr. Bruce has well observed of the articles agreed upon

in 8 Hen. VI., or rather of "those in 5 Hen. VI., which were nearly the

same, that in theory nothing could be more excellent. In turbulent

times, it is scarcely necessary to remark, great men were too apt to

weigh out justice for themselves, and with no great nicety; a court,

therefore, to which the people might fly for relief against powerful

oppressors, was most especially needful. Law charges also were

considerable; and this, 'the poor man's court, in which he might have

right without paying any money' (Sir T. Smith's Commonwealth, book iii.

ch. 7), was an institution apparently calculated to be of unquestionable

utility. It was the comprehensiveness of the last clause--the 'other

cause resonable'--which was its ruin." Archaeologia, vol. xxv. p. 348.

The statute 31 Hen. VI. c. 2, which is not printed in Ruffhead's

edition, is very important, as giving a legal authority to the council,

by writs under the great seal, and by writs of proclamation to the

sheriffs, on parties making default, to compel the attendance of any

persons complained of for "great riots, extortions, oppressions, and

grievous offences," under heavy penalties; in case of a peer, "the loss

of his estate, and name of lord, and his place in parliament," and all

his lands for the term of his life; and fine at discretion in the case

of other persons. A proviso is added that no matter determinable by the

law of the realm should be determined in other form than after the

course of law in the king's courts. Sir Francis Palgrave (Essay on the

King's Council, p. 84) observes that this proviso "would in no way

interfere with the effective jurisdiction of the council, inasmuch as it

could always be alleged in the bills which were preferred before it that

the oppressive and grievous offences of which they complained were not

determinable by the ordinary course of the common law" p. 86. But this

takes the word "determinable" to mean _in fact_; whereas I apprehend

that the proviso must be understood to mean cases legally determinable;

the words, I think, will bear no other construction. But as all the

offences enumerated were indictable, we must either hold the proviso to

be utterly inconsistent with the rest of the statute, or suppose that

the words "other form" were intended to prohibit the irregular process

usual with the council; secret examination of witnesses, torture,

neglect of technical formality in specifying charges, punishments not

according to the course of law, and other violations of fair and free

trial, which constituted the greatest grievance in the proceedings of

the council.

[360] The judgment against Mortimer was reversed at the suit of his son,

28 E. III., because he had not been put on his trial. The peers had

adjudged him to death in his absence, upon common notoriety of his

guilt. 4 E. III. p. 53. In the same session of 28 E. III. the earl of

Arundel's attainder was also reversed, which had passed in 1 E. III.,

when Mortimer was at the height of his power. These precedents taken

together seem to have resulted from no partiality, but a true sense of

justice in respect of treasons, animated by the recent statute. Rot.

Parl. vol. ii. p. 256.

[361] Rot. Parl. vol. iii. p. 427.

[362] Blackstone's Comment. from Finch, vol. i. c. 7.

[363] Letters are directed to all the sheriffs, 2 E. I., enjoining them

to send up a certain number of beeves, sheep, capons, &c., for the

king's coronation. Rymer, vol. ii. p. 21. By the statute 21 E. III. c.

12, goods taken by the purveyors were to be paid for on the spot if

under twenty shillings' value, or within three months' time if above

that value. But it is not to be imagined that this law was or could be

observed.

Edward III., impelled by the exigencies of his French war, went still

greater lengths, and seized larger quantities of wool, which he sold

beyond sea, as well as provisions for the supply of his army. In both

cases the proprietors had tallies, or other securities; but their

despair of obtaining payment gave rise, in 1338, to an insurrection.

There is a singular apologetical letter of Edward to the archbishops on

this occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col.

2570.

[364] Rymer, t. vi. p. 417.

[365] Idem, t. xi. p. 852.

[366] Matthew Paris asserts that John granted a separate forest-charter,

and supports his position by asserting that of Henry III. at full

length. In fact, the clauses relating to the forest were incorporated

with the great charter of John. Such an error as this shows the

precariousness of historical testimony, even where it seems to be best

grounded.

[367] Coke, fourth Inst. p. 294. The forest domain of the king, says the

author of the Dialogue on the Exchequer under Henry II., is governed by

its own laws, not founded on the common law of the land, but the

voluntary enactment of princes: so that whatever is done by that law is

reckoned not legal in itself, but legal according to forest law, p. 29,

non justum absolute, sed justum secundum legem forestae dicatur. I

believe my translation of _justum_ is right; for he is not writing

satirically.

[368] 13 R. II. c. 2.

[369] Rot. Parl. vol. iii. p. 530.

[370] The apprehension of this compliant spirit in the ministers of

justice led to an excellent act in 2 E. III. c. 8, that the judges shall

not omit to do right for any command under the great or privy seal. And

the conduct of Richard II., who sought absolute power by corrupting or

intimidating them, produced another statute in the eleventh year of his

reign (c. 10), providing that neither letters of the king's signet nor

of the privy seal should from thenceforth be sent in disturbance of the

law. An ordinance of Charles V., king of France, in 1369, directs the

parliament of Paris to pay no regard to any letters under his seal

suspending the course of legal procedure, but to consider them as

surreptitiously obtained. Villaret, t. x. p. 175. This ordinance, which

was sedulously observed, tended very much to confirm the independence

and integrity of that tribunal.

[371] Cotton's Posthuma, p. 221. Howell's State Trials, vol. iii. p. 1.

Hume quotes a grant of the office of constable to the earl of Rivers in

7 E. IV., and infers, unwarrantably enough, that "its authority was in

direct contradiction to Magna Charta; and it is evident that no regular

liberty could subsist with it. It involved a full dictatorial power,

continually subsisting in the state." Hist. of England, c. 22. But by

the very words of this patent the jurisdiction given was only over such

causes quae in curia constabularii Angliae ab antiquo, viz. tempore dicti

Gulielmi conquaestoris, seu aliquo tempore citra, tractari, audiri,

examinari, aut decidi consueverunt aut _jure debuerant aut debent_.

These are expressed, though not very perspicuously, in the statute 13 R.

II. c. 2, that declares the constable's jurisdiction. And the chief

criminal matter reserved by law to the court of this officer was treason

committed out of the kingdom. In violent and revolutionary seasons, such

as the commencement of Edward IV.'s reign, some persons were tried by

martial law before the constable. But, in general, the exercise of

criminal justice by this tribunal, though one of the abuses of the

times, cannot be said to warrant the strong language adopted by Hume.

[372] Fortescue, De Laudibus Legum Angliae, c. 9.

[373] Id. c. 13.

[374] The latter treatise having been written under Edward IV., whom

Fortescue, as a restored Lancastrian, would be anxious not to offend,

and whom in fact he took some pains to conciliate both in this and other

writings, it is evident that the principles of limited monarchy were as

fully recognised in his reign whatever particular acts of violence might

occur, as they had been under the Lancastrian princes.

[375] The following is one example of these prejudices: In the 9th of

Richard II. a tax on wool granted till the ensuing feast of St. John

Baptist was to be intermitted from thence to that of St. Peter, and then

to recommence; that it might not be claimed as a right. Rot. Parl. vol.

iii. p. 214. Mr. Hume has noticed this provision, as "showing an

accuracy beyond what was to be expected in those _rude_ times." In this

epithet we see the foundation of his mistakes. The age of Richard II.

might perhaps be called rude in some respects. But assuredly in prudent

and circumspect perception of consequences, and an accurate use of

language, there could be no reason why it should be deemed inferior to

our own. If Mr. Hume had ever deigned to glance at the legal decisions

reported in the Year-books of those times, he would have been surprised,

not only at the utmost _accuracy_, but at a subtle refinement in verbal

logic, which none of his own metaphysical treatises could surpass.

[376] [Note XII.]

[377] During the famous process against the knights templars in the

reign of Edward II., the archbishop of York, having taken the

examination of certain templars in his province, felt some doubts which

he propounded to several monasteries and divines. Most of these relate

to the main subject. But one question, fitter indeed for lawyers than

theologians, was, whereas many would not confess without torture,

whether he might make use of this means, _licet hoc in regno Angliae

nunquam visum fuerit vel auditum_? Et si torquendi sunt, utrum per

clericos vel laicos? Et dato, quod _nullus omnino tortor inveniri

valeat_ in Anglia, utrum pro tortoribus mittendum sit ad partes

transmarinas? Walt. Hemingford, p. 256. Instances, however, of its use

are said to have occurred in the 15th century. See a learned 'Reading on

the Use of Torture in the Criminal Law of England, by David Jardine,

Esq., 1837.'

[378] Rot. Parl. vol. iv. p. 65.

[379] Rot. Parl. vol. iv. p. 202.

[380] This was written in 1811 or 1812; and is among many passages which

the progress of time has somewhat falsified.

[381] Philip de Comines takes several opportunities of testifying his

esteem for the English government. See particularly 1. iv. c. i. and 1.

v. c. xix.

[382] By a frankleyn in this place we are to understand what we call a

country squire, like the frankleyn of Chaucer; for the word esquire in

Fortescue's time was only used in its limited sense, for the sons of

peers and knights, or such as had obtained the title by creation or some

other legal means.

The mention of Chaucer leads me to add that the prologue to his

Canterbury Tales is of itself a continual testimony to the plenteous and

comfortable situation of the middle ranks in England, as well as to that

fearless independence and frequent originality of character amongst

them, which liberty and competence have conspired to produce.

[383] Brady's Hist. vol. i.; Appendix, p. 148.

[384] Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. iv. p.

41.