View of the State of Europe during the Middle Ages Part 4

This was the introduction of complete statutes under the name of bills, instead of the old pet.i.tions; and these containing the royal a.s.sent and the whole form of a law, it became, though not quite immediately,[205] a constant principle that the king must admit or reject them without qualification. This alteration, which wrought an extraordinary effect on the character of our const.i.tution, was gradually introduced in Henry VI.'s reign.[206]

From the first years of Henry V., though not, I think, earlier, the commons began to concern themselves with the pet.i.tions of individuals to the lords or council. The nature of the jurisdiction exercised by the latter will be treated more fully hereafter; it is only necessary to mention in this place that many of the requests preferred to them were such as could not be granted without transcending the boundaries of law.

A just inquietude as to the encroachments of the king's council had long been manifested by the commons; and finding remonstrances ineffectual, they took measures for preventing such usurpations of legislative power by introducing their own consent to private pet.i.tions. These were now presented by the hands of the commons, and in very many instances pa.s.sed in the form of statutes with the express a.s.sent of all parts of the legislature. Such was the origin of private bills, which occupy the greater part of the rolls in Henry V. and VI.'s parliament. The commons once made an ineffectual endeavour to have their consent to all pet.i.tions presented to the council in parliament rendered necessary by law; if I rightly apprehend the meaning of the roll in this place, which seems obscure or corrupt.[207]

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

5. If the strength of the commons had lain merely in the weakness of the crown, it might be inferred that such hara.s.sing interference with the administration of affairs as the youthful and frivolous Richard was compelled to endure would have been sternly repelled by his experienced successor. But, on the contrary, the spirit of Richard might have rejoiced to see that his mortal enemy suffered as hard usage at the hands of parliament as himself. After a few years the government of Henry became extremely unpopular. Perhaps his dissension with the great family of Percy, which had placed him on the throne, and was regarded with partiality by the people,[208] chiefly contributed to this alienation of their attachment. The commons requested, in the fifth of his reign, that certain persons might be removed from the court; the lords concurred in displacing four of these, one being the king's confessor. Henry came down to parliament and excused these four persons, as knowing no special cause why they should be removed; yet, well understanding that what the lords and commons should ordain would be for his and his kingdom's interest, and therefore anxious to conform himself to their wishes, consented to the said ordinance, and charged the persons in question to leave his palace; adding, that he would do as much by any other about his person whom he should find to have incurred the ill affection of his people.[209] It was in the same session that the archbishop of Canterbury was commanded to declare before the lords the king's intention respecting his administration; allowing that some things had been done amiss in his court and household; and therefore, wis.h.i.+ng to conform to the will of G.o.d and laws of the land, protested that he would let in future no letters of signet or privy seal go in disturbance of law, beseeched the lords to put his household in order, so that every one might be paid, and declared that the money granted by the commons for the war should be received by treasurers appointed in parliament, and disbursed by them for no other purpose, unless in case of rebellion. At the request of the commons he named the members of his privy council; and did the same, with some variation of persons, two years afterwards. These, though not nominated with the express consent, seem to have had the approbation of the commons, for a subsidy is granted in 7 H. IV., among other causes, for "the great trust that the commons have in the lords lately chosen and ordained to be of the king's continual council, that there shall be better management than heretofore."[210]

In the sixth year of Henry the parliament, which Sir E. c.o.ke derides as unlearned because lawyers were excluded from it, proceeded to a resumption of grants and a prohibition of alienating the ancient inheritance of the crown without consent of parliament, in order to ease the commons of taxes, and that the king might live on his own.[211] This was a favourite though rather chimerical project. In a later parliament it was requested that the king would take his council's advice how to keep within his own revenue; he answered that he would willingly comply as soon as it should be in his power.[212]

But no parliament came near, in the number and boldness of its demands, to that held in the eighth year of Henry IV. The commons presented thirty-one articles, none of which the king ventured to refuse, though pressing very severely upon his prerogative. He was to name sixteen counsellors, by whose advice he was solely to be guided, none of them to be dismissed without conviction of misdemeanor. The chancellor and privy seal to pa.s.s no grants or other matter contrary to law. Any persons about the court stirring up the king or queen's minds against their subjects, and duly convicted thereof, to lose their offices and be fined. The king's ordinary revenue was wholly appropriated to his household and the payment of his debts; no grant of wards.h.i.+p or other profit to be made thereout, nor any forfeiture to be pardoned. The king, "considering the wise government of other Christian princes, and conforming himself thereto," was to a.s.sign two days in the week for pet.i.tions, "it being an honourable and necessary thing that his lieges, who desired to pet.i.tion him, should be heard." No judicial officer, nor any in the revenue or household, to enjoy his place for life or term of years. No pet.i.tion to be presented to the king, by any of his household, at times when the council were not sitting. The council to determine nothing cognizable at common law, unless for a reasonable cause and with consent of the judges. The statutes regulating purveyance were affirmed--abuses of various kinds in the council and in courts of justice enumerated and forbidden--elections of knights for counties put under regulation. The council and officers of state were sworn to observe the common law and all statutes, those especially just enacted.[213]

It must strike every reader that these provisions were of themselves a n.o.ble fabric of const.i.tutional liberty, and hardly perhaps inferior to the pet.i.tion of right under Charles I. We cannot account for the submission of Henry to conditions far more derogatory than ever were imposed on Richard, because the secret politics of his reign are very imperfectly understood. Towards its close he manifested more vigour. The speaker, Sir Thomas Chaucer, having made the usual pet.i.tion for liberty of speech, the king answered that he might speak as others had done in the time of his (Henry's) ancestors, and his own, but not otherwise; for he would by no means have any innovation, but be as much at his liberty as any of his ancestors had ever been. Some time after he sent a message to the commons, complaining of a law pa.s.sed at the last parliament infringing his liberty and prerogative, which he requested their consent to repeal. To this the commons agreed, and received the king's thanks, who declared at the same time that he would keep as much freedom and prerogative as any of his ancestors. It does not appear what was the particular subject of complaint; but there had been much of the same remonstrating spirit in the last parliament that was manifested on preceding occasions. The commons, however, for reasons we cannot explain, were rather dismayed. Before their dissolution, they pet.i.tion the king, that, whereas he was reported to be offended at some of his subjects in this and in the preceding parliament, he would openly declare that he held them all for loyal subjects. Henry granted this "of his special grace;" and thus concluded his reign more triumphantly with respect to his domestic battles than he had gone through it.[214]

[Sidenote: Henry V. His popularity.]

Power deemed to be ill gotten is naturally precarious; and the instance of Henry IV. has been well quoted to prove that public liberty flourishes with a bad t.i.tle in the sovereign. None of our kings seem to have been less beloved; and indeed he had little claim to affection. But what men denied to the reigning king they poured in full measure upon the heir of his throne. The virtues of the prince of Wales are almost invidiously eulogized by those parliaments who treat harshly his father;[215] and these records afford a strong presumption that some early petulance or riot has been much exaggerated by the vulgar minds of our chroniclers. One can scarcely understand at least that a prince who was three years engaged in quelling the dangerous insurrection of Glendower, and who in the latter time of his father's reign presided at the council, was so lost in a cloud of low debauchery as common fame represents.[216] Loved he certainly was throughout his life, as so intrepid, affable, and generous a temper well deserved; and this sentiment was heightened to admiration by successes still more rapid and dazzling than those of Edward III. During his reign there scarcely appears any vestige of dissatisfaction in parliament--a circ.u.mstance very honourable, whether we ascribe it to the justice of his administration or to the affection of his people. Perhaps two exceptions, though they are rather one in spirit, might be made: the first, a pet.i.tion to the duke of Gloucester, then holding parliament as guardian of England, that he would move the king and queen to return, as speedily as might please them, in relief and comfort of the commons;[217] the second, a request that their pet.i.tions might not be sent to the king beyond sea, but altogether determined "within this kingdom of England, during this parliament," and that this ordinance might be of force in all future parliaments to be held in England.[218]

This prayer, to which the guardian declined to accede, evidently sprang from the apprehensions, excited in their minds by the treaty of Troyes, that England might become a province of the French crown, which led them to obtain a renewal of the statute of Edward III., declaring the independence of this kingdom.[219]

[Sidenote: Parliament consulted on all public affairs.]

It has been seen already that even Edward III. consulted his parliament upon the expediency of negociations for peace, though at that time the commons had not acquired boldness enough to tender their advice. In Richard II.'s reign they answered to a similar proposition with a little more confidence, that the dangers each way were so considerable they dared not decide, though an honourable peace would be the greatest comfort they could have, and concluded by hoping that the king would not engage to do homage for Calais or the conquered country.[220] The parliament of the tenth of his reign was expressly summoned in order to advise concerning the king's intended expedition beyond sea--a great council, which had previously been a.s.sembled at Oxford, having declared their incompetence to consent to this measure without the advice of parliament.[221] Yet a few years afterwards, on a similar reference, the commons rather declined to give any opinion.[222] They confirmed the league of Henry V. with the emperor Sigismund;[223] and the treaty of Troyes, which was so fundamentally to change the situation of Henry and his successors, obtained, as it evidently required, the sanction of both houses of parliament.[224] These precedents conspiring with the weakness of the executive government, in the minority of Henry VI., to fling an increase of influence into the scale of the commons, they made their concurrence necessary to all important business both of a foreign and domestic nature. Thus commissioners were appointed to treat of the deliverance of the king of Scots, the d.u.c.h.esses of Bedford and Gloucester were made denizens, and mediators were appointed to reconcile the dukes of Gloucester and Burgundy, by authority of the three estates a.s.sembled in parliament.[225] Leave was given to the dukes of Bedford and Gloucester, and others in the king's behalf, to treat of peace with France, by both houses of parliament, in pursuance of an article in the treaty of Troyes, that no treaty should be set on foot with the dauphin without consent of the three estates of both realms.[226] This article was afterwards repealed.[227]

Some complaints are made by the commons, even during the first years of Henry's minority, that the king's subjects underwent arbitrary imprisonment, and were vexed by summonses before the council and by the newly-invented writ of subpoena out of chancery.[228] But these are not so common as formerly; and so far as the rolls lead us to any inference, there was less injustice committed by the government under Henry VI. and his father than at any former period. Wastefulness indeed might justly be imputed to the regency, who had scandalously lavished the king's revenue.[229] This ultimately led to an act for resuming all grants since his accession, founded upon a public declaration of the great officers of the crown that his debts amounted to 372,000_l._, and the annual expense of the household to 24,000_l._, while the ordinary revenue was not more than 5000_l._[230]

[Sidenote: Impeachments of ministers.]

6. But before this time the sky had begun to darken, and discontent with the actual administration pervaded every rank. The causes of this are familiar--the unpopularity of the king's marriage with Margaret of Anjou, and her impolitic violence in the conduct of affairs, particularly the imputed murder of the people's favourite, the duke of Gloucester. This provoked an attack upon her own creature, the duke of Suffolk. Impeachment had lain still, like a sword in the scabbard, since the accession of Henry IV., when the commons, though not preferring formal articles of accusation, had pet.i.tioned the king that Justice Rickhill, who had been employed to take the former duke of Gloucester's confession at Calais, and the lords appellants of Richard II.'s last parliament, should be put on their defence before the lords.[231] In Suffolk's case the commons seem to have proceeded by bill of attainder, or at least to have designed the judgment against that minister to be the act of the whole legislature; for they delivered a bill containing articles against him to the lords, with a request that they would pray the king's majesty to enact that bill in parliament, and that the said duke might be proceeded against upon the said articles in parliament according to the law and custom of England. These articles contained charges of high treason, chiefly relating to his conduct in France, which, whether treasonable or not, seems to have been grossly against the honour and advantage of the crown. At a later day the commons presented many other articles of misdemeanor. To the former he made a defence, in presence of the king as well as the lords both spiritual and temporal; and indeed the articles of impeachment were directly addressed to the king, which gave him a reasonable pretext to interfere in the judgment. But from apprehension, as it is said, that Suffolk could not escape conviction upon at least some part of these charges, Henry antic.i.p.ated with no slight irregularity the course of legal trial, and, summoning the peers into a private chamber, informed the duke of Suffolk, by mouth of his chancellor, that, inasmuch as he had not put himself upon his peerage, but submitted wholly to the royal pleasure, the king, acquitting him of the first articles containing matter of treason, by his own advice and not that of the lords, nor by way of judgment, not being in a place where judgment could be delivered, banished him for five years from his dominions. The lords then present besought the king to let their protest appear on record, that neither they nor their posterity might lose their rights of peerage by this precedent. It was justly considered as an arbitrary stretch of prerogative, in order to defeat the privileges of parliament and screen a favourite minister from punishment. But the course of proceeding by bill of attainder, instead of regular impeachment, was not judiciously chosen by the commons.[232]

[Sidenote: Privilege of parliament.]

7. Privilege of parliament, an extensive and singular branch of our const.i.tutional law, begins to attract attention under the Lancastrian princes. It is true indeed that we can trace long before by records, and may infer with probability as to times whose records have not survived, one considerable immunity--a freedom from arrest for persons transacting the king's business in his national council.[233] Several authorities may be found in Mr. Hatsell's Precedents; of which one, in the 9th of Edward II., is conclusive.[234] But in those rude times members of parliament were not always respected by the officers executing legal process, and still less by the violators of law. After several remonstrances, which the crown had evaded,[235] the commons obtained the statute 11 Henry VI. c. 11, for the punishment of such as a.s.sault any on their way to the parliament, giving double damages to the party.[236]

They had more difficulty in establis.h.i.+ng, notwithstanding the old precedents in their favour, an immunity from all criminal process except in charges of treason, felony, and breach of the peace, which is their present measure of privilege. The truth was, that, with a right pretty clearly recognised, as is admitted by the judges in Thorp's case, the house of commons had no regular compulsory process at their command. In the cases of Lark, servant of a member, in the 8th of Henry VI.,[237]

and of Clerke, himself a burgess, in the 39th of the same king,[238] it was thought necessary to effect their release from a civil execution by special acts of parliament. The commons, in a former instance, endeavoured to make the law general that no members nor their servants might be taken except for treason, felony, and breach of peace; but the king put a negative upon this part of their pet.i.tion.

The most celebrated, however, of these early cases of privilege is that of Thomas Thorp, speaker of the commons in 31 Henry VI. This person, who was moreover a baron of the exchequer, had been imprisoned on an execution at suit of the duke of York. The commons sent some of their members to complain of a violation of privilege to the king and lords in parliament, and to demand Thorp's release. It was alleged by the duke of York's counsel that the trespa.s.s done by Thorp was since the beginning of the parliament, and the judgment thereon given in time of vacation, and not during the sitting. The lords referred the question to the judges, who said, after deliberation, that "they ought not to answer to that question, for it hath not be used aforetyme that the judges should in any wise determine the privilege of this high court of parliament; for it is so high and so mighty in his nature that it may make law, and that that is law it may make no law; and the determination and knowledge of that privilege belongeth to the lords of the parliament, and not to the justices." They went on, however, after observing that a general writ of supersedeas of all processes upon ground of privilege had not been known, to say that, "if any person that is a member of this high court of parliament be arrested in such cases as be not for treason, or felony, or surety of the peace, or for a condemnation had before the parliament, it is used that all such persons should be released of such arrests and make an attorney, so that they may have their freedom and liberty freely to intend upon the parliament."

Notwithstanding this answer of the judges, it was concluded by the lords that Thorp should remain in prison, without regarding the alleged privilege; and the commons were directed in the king's name to proceed "with all goodly haste and speed" to the election of a new speaker. It is curious to observe that the commons, forgetting their grievances, or content to drop them, made such haste and speed according to this command, that they presented a new speaker for approbation the next day.[239]

This case, as has been strongly said, was begotten by the iniquity of the times. The state was verging fast towards civil war; and Thorp, who afterwards distinguished himself for the Lancastrian cause, was an inveterate enemy of the duke of York. That prince seems to have been swayed a little from his usual temper in procuring so unwarrantable a determination. In the reign of Edward IV. the commons claimed privilege against any civil suit during the time of their session; but they had recourse, as before, to a particular act of parliament to obtain a writ of supersedeas in favour of one Atwell, a member, who had been sued. The present law of privilege seems not to have been fully established, or at least effectually maintained, before the reign of Henry VIII.[240]

No privilege of the commons can be so fundamental as liberty of speech.

This is claimed at the opening of every parliament by their speaker, and could never be infringed without shaking the ramparts of the const.i.tution. Richard II.'s attack upon Haxey has been already mentioned as a flagrant evidence of his despotic intentions. No other case occurs until the 33rd year of Henry VI., when Thomas Young, member for Bristol, complained to the commons, that, "for matters by him showed in the house accustomed for the commons in the said parliaments, he was therefore taken, arrested, and rigorously in open wise led to the Tower of London, and there grievously in great duress long time imprisoned against the said freedom and liberty;" with much more to the like effect. The commons transmitted this pet.i.tion to the lords, and the king "willed that the lords of his council do and provide for the said suppliant as in their discretions shall be thought convenient and reasonable." This imprisonment of Young, however, had happened six years before, in consequence of a motion made by him that, the king then having no issue, the duke of York might be declared heir-apparent to the crown. In the present session, when the duke was protector, he thought it well-timed to prefer his claim to remuneration.[241]

There is a remarkable precedent in the 9th of Henry IV., and perhaps the earliest authority for two eminent maxims of parliamentary law--that the commons possess an exclusive right of originating money bills, and that the king ought not to take notice of matters pending in parliament. A quarrel broke out between the two houses upon this ground; and as we have not before seen the commons venture to clash openly with their superiors, the circ.u.mstance is for this additional reason worthy of attention. As it has been little noticed, I shall translate the whole record.

"Friday the second day of December, which was the last day of the parliament, the commons came before the king and the lords in parliament, and there, by command of the king, a schedule of indemnity touching a certain altercation moved between the lords and commons was read; and on this it was commanded by our said lord the king that the said schedule should be entered of record in the roll of parliament; of which schedule the tenor is as follows: Be it remembered, that on Monday the 21st day of November, the king our sovereign lord being in the council-chamber in the abbey of Gloucester,[242] the lords spiritual and temporal for this present parliament a.s.sembled being then in his presence, a debate took place among them about the state of the kingdom, and its defence to resist the malice of the enemies who on every side prepare to molest the said kingdom and its faithful subjects, and how no man can resist this malice, unless, for the safeguard and defence of his said kingdom, our sovereign lord the king has some notable aid and subsidy granted to him in his present parliament. And therefore it was demanded of the said lords by way of question what aid would be sufficient and requisite in these circ.u.mstances? To which question it was answered by the said lords severally, that, considering the necessity of the king on one side, and the poverty of his people on the other, no less aid could be sufficient than one tenth and a half from cities and towns, and one fifteenth and a half from all other lay persons; and, besides, to grant a continuance of the subsidy on wool, woolfells, and leather, and of three s.h.i.+llings on the tun (of wine), and twelve pence on the pound (of other merchandise), from Michaelmas next ensuing for two years thenceforth. Whereupon, by command of our said lord the king, a message was sent to the commons of this parliament to cause a certain number of their body to come before our said lord the king and the lords, in order to hear and report to their companions what they should be commanded by our said lord the king. And upon this the said commons sent into the presence of our said lord the king and the said lords twelve of their companions; to whom, by command of our said lord the king, the said question was declared, with the answer by the said lords severally given to it. Which answer it was the pleasure of our said lord the king that they should report to the rest of their fellows, to the end that they might take the shortest course to comply with the intention of the said lords. Which report being thus made to the said commons, they were greatly disturbed at it, saying and a.s.serting it to be much to the prejudice and derogation of their liberties. And after that our said lord the king had heard this, not willing that anything should be done at present, or in time to come, that might anywise turn against the liberty of the estate for which they are come to parliament, nor against the liberties of the said lords, wills and grants and declares, by the advice and consent of the said lords, as follows: to wit, that it shall be lawful for the lords to debate together in this present parliament, and in every other for time to come, in the king's absence, concerning the condition of the kingdom, and the remedies necessary for it. And in like manner it shall be lawful for the commons, on their part, to debate together concerning the said condition and remedies. Provided always that neither the lords on their part, nor the commons on theirs, do make any report to our said lord the king of any grant granted by the commons, and agreed to by the lords, nor of the communications of the said grant, before that the said lords and commons are of one accord and agreement in this matter, and then in manner and form accustomed--that is to say, by the mouth of the speaker of the said commons for the time being--to the end that the said lords and commons may have what they desire (avoir puissent leur gree) of our said lord the king. Our said lord the king willing moreover, by the consent of the said lords, that the communication had in this present parliament as above be not drawn into precedent in time to come, nor be turned to the prejudice or derogation of the liberty of the estate for which the said commons are now come, neither in this present parliament nor in any other time to come. But wills that himself and all the other estates should be as free as they were before. Also, the said last day of parliament, the said speaker prayed our said lord the king, on the part of the said commons, that he would grant the said commons that they should depart in as great liberty as other commons had done before. To which the king answered that this pleased him well, and that at all times it had been his desire."[243]

Every attentive reader will discover this remarkable pa.s.sage to ill.u.s.trate several points of const.i.tutional law. For hence it may be perceived--first, that the king was used in those times to be present at debates of the lords, personally advising with them upon the public business; which also appears by many other pa.s.sages on record; and this practice, I conceive, is not abolished by the king's present declaration, save as to grants of money, which ought to be of the free will of parliament, and without that fear or influence which the presence of so high a person might create: secondly, that it was already the established law of parliament that the lords should consent to the commons' grant, and not the commons to the lords'; since it is the inversion of this order whereof the commons complain, and it is said expressly that grants are made by the commons, and agreed to by the lords: thirdly, that the lower house of parliament is not, in proper language, an estate of the realm, but rather the image and representative of the commons of England; who, being the third estate, with the n.o.bility and clergy make up and const.i.tute the people of this kingdom and liege subjects of the crown.[244]

At the next meeting of parliament, in allusion probably to this disagreement between the houses, the king told them that the states of parliament were come together for the common profit of the king and kingdom, and for unanimity's sake and general consent; and therefore he was sure the commons would not attempt nor say anything but what should be fitting and conducive to unanimity; commanding them to meet together and communicate for the public service.[245]

It was not only in money bills that the originating power was supposed to reside in the commons. The course of proceedings in parliament, as has been seen, from the commencement at least of Edward III.'s reign, was that the commons presented pet.i.tions, which the lords, by themselves, or with the a.s.sistance of the council, having duly considered, the sanction of the king was notified or withheld. This was so much according to usage, that, on one occasion, when the commons requested the advice of the other house on a matter before them, it was answered that the ancient custom and form of parliament had ever been for the commons to report their own opinion to the king and lords, and not to the contrary; and the king would have the ancient and laudable usages of parliament maintained.[246] It is singular that in the terror of innovation the lords did not discover how materially this usage of parliament took off from their own legislative influence. The rule, however, was not observed in succeeding times; bills originated indiscriminately in either house; and indeed some acts of Henry V., which do not appear to be grounded on any pet.i.tion, may be suspected, from the manner of their insertion in the rolls of parliament, to have been proposed on the king's part to the commons.[247] But there is one manifest instance in the 18th of Henry VI., where the king requested the commons to give their authority to such regulations[248] as his council might provide for redressing the abuse of purveyance; to which they a.s.sented.

If we are to choose const.i.tutional precedents from seasons of tranquillity rather than disturbance, which surely is the only means of preserving justice or consistency, but little intrinsic authority can be given to the following declaration of parliamentary law in the 11th of Richard II.: "In this parliament (the roll says) all the lords as well spiritual and temporal there present claimed as their liberty and privilege, that the great matters moved in this parliament, and to be moved in other parliaments for time to come, touching the peers of the land, should be treated, adjudged, and debated according to the course of parliament, and not by the civil law nor the common law of the land, used in the other lower courts of the kingdom; which claim, liberty, and privileges, the king graciously allowed and granted them in full parliament."[249] It should be remembered that this a.s.sertion of paramount privilege was made in very irregular times, when the king was at the mercy of the duke of Gloucester and his a.s.sociates, and that it had a view to the immediate object of justifying their violent proceedings against the opposite party, and taking away the restraint of the common law. It stands as a dangerous rock to be avoided, not a lighthouse to guide us along the channel. The law of parliament, as determined by regular custom, is incorporated into our const.i.tution; but not so as to warrant an indefinite, uncontrollable a.s.sumption of power in any case, least of all in judicial procedure, where the form and the essence of justice are inseparable from each other. And, in fact, this claim of the lords, whatever gloss Sir E. c.o.ke may put upon it, was never intended to bear any relation to the privileges of the lower house. I should not, perhaps, have noticed this pa.s.sage so strongly if it had not been made the basis of extravagant a.s.sertions as to the privileges of parliament;[250] the spirit of which exaggerations might not be ill adapted to the times wherein Sir E. c.o.ke lived, though I think they produced at several later periods no slight mischief, some consequences of which we may still have to experience.

[Sidenote: Contested elections how determined.]

The want of all judicial authority, either to issue process or to examine witnesses, together with the usual shortness of sessions, deprived the house of commons of what is now considered one of its most fundamental privileges, the cognizance of disputed elections. Upon a false return by the sheriff, there was no remedy but through the king or his council. Six instances only, I believe, occur, during the reigns of the Plantagenet family, wherein the misconduct or mistake of the sheriff is recorded to have called for a specific animadversion, though it was frequently the ground of general complaint, and even of some statutes.

The first is in the 12th of Edward II., when a pet.i.tion was presented to the council against a false return for the county of Devon, the pet.i.tioner having been duly elected. It was referred to the court of exchequer to summon the sheriff before them.[251] The next occurs in the 36th of Edward III., when a writ was directed to the sheriff of Lancas.h.i.+re, after the dissolution of parliament, to inquire at the county-court into the validity of the election; and upon his neglect a second writ issued to the justices of the peace to satisfy themselves about this in the best manner they could, and report the truth into chancery. This inquiry after the dissolution was on account of the wages for attendance, to which the knights unduly returned could have no pretence.[252] We find a third case in the 7th of Richard II., when the king took notice that Thomas de Camoys, who was summoned by writ to the house of peers, had been elected knight for Surrey, and directed the sheriff to return another.[253] In the same year the town of Shaftesbury pet.i.tioned the king, lords, and commons against a false return of the sheriff of Dorset, and prayed them to order remedy. Nothing further appears respecting this pet.i.tion.[254] This is the first instance of the commons being noticed in matters of election. But the next case is more material; in the 5th of Henry IV. the commons prayed the king and lords in parliament, that, because the writ of summons to parliament was not sufficiently returned by the sheriff of Rutland, this matter might be examined in parliament, and in case of default found therein an exemplary punishment might be inflicted; whereupon the lords sent for the sheriff and Oneby, the knight returned, as well as for Thorp, who had been duly elected, and, having examined into the facts of the case, directed the return to be amended, by the insertion of Thorp's name, and committed the sheriff to the Fleet till he should pay a fine at the king's pleasure.[255] The last pa.s.sage that I can produce is from the roll of 18 H. VI., where "it is considered by the king, with the advice and a.s.sent of the lords spiritual and temporal," that, whereas no knights have been returned for Cambridges.h.i.+re, the sheriff shall be directed, by another writ, to hold a court and to proceed to an election, proclaiming that no person shall come armed, nor any tumultuous proceeding take place; something of which sort appears to have obstructed the execution of the first writ. It is to be noticed that the commons are not so much as named in this entry.[256] But several provisions were made by statute under the Lancastrian kings, when seats in parliament became much more an object of compet.i.tion than before, to check the partiality of the sheriffs in making undue returns.

One act (11 H. IV. c. 1) gives the justices of a.s.sise power to inquire into this matter, and inflicts a penalty of one hundred pounds on the sheriff. Another (6 H. VI. c. 4) mitigates the rigour of the former, so far as to permit the sheriff or the knights returned by him to traverse the inquests before the justices; that is, to be heard in their own defence, which, it seems, had not been permitted to them. Another (23 H.

VI. c. 14) gives an additional penalty upon false returns to the party aggrieved. These statutes conspire with many other testimonies to manifest the rising importance of the house of commons, and the eagerness with which gentlemen of landed estates (whatever might be the case in petty boroughs) sought for a share in the national representation.

[Sidenote: In whom the right of voting for knights resided.]

Whoever may have been the original voters for county representatives, the first statute that regulates their election, so far from limiting the privilege to tenants in capite, appears to place it upon a very large and democratical foundation. For (as I rather conceive, though not without much hesitation), not only all freeholders, but all persons whatever present at the county-court, were declared, or rendered, capable of voting for the knight of their s.h.i.+re. Such at least seems to be the inference from the expressions of 7 H. IV. c. 15, "all who are there present, as well suitors duly summoned for that cause as others."[257] And this acquires some degree of confirmation from the later statute, 8 H. VI. c. 7, which, reciting that "elections of knights of s.h.i.+res have now of late been made by very great, outrageous, and excessive number of people dwelling within the same counties, of the which most part was people of small substance and of no value," confines the elective franchise to freeholders of lands or tenements to the value of forty s.h.i.+llings.

[Sidenote: Elections of burgesses.]

The representation of towns in parliament was founded upon two principles--of consent to public burthens, and of advice in public measures, especially such as related to trade and s.h.i.+pping. Upon both these accounts it was natural for the kings who first summoned them to parliament, little foreseeing that such half-emanc.i.p.ated burghers would ever clip the loftiest plumes of their prerogative, to make these a.s.semblies numerous, and summon members from every town of consideration in the kingdom. Thus the writ of 23 E. I. directs the sheriffs to cause deputies to be elected to a general council from every city, borough, and trading town. And although the last words are omitted in subsequent writs, yet their spirit was preserved; many towns having constantly returned members to parliament by regular summonses, from the sheriffs, which were no chartered boroughs, nor had apparently any other claim than their populousness or commerce. These are now called boroughs by prescription.[258]

Besides these respectable towns, there were some of a less eminent figure which had writs directed to them as ancient demesnes of the crown. During times of arbitrary taxation the crown had set tallages alike upon its chartered boroughs and upon its tenants in demesne. When parliamentary consent became indispensable, the free tenants in ancient demesne, or rather such of them as inhabited some particular vills, were called to parliament among the other representatives of the commons.

They are usually specified distinctly from the other cla.s.ses of representatives in grants of subsidies throughout the parliaments of the first and second Edwards, till, about the beginning of the third's reign, they were confounded with ordinary burgesses.[259] This is the foundation of that particular species of elective franchise incident to what we denominate burgage tenure; which, however, is not confined to the ancient demesne of the crown.[260]

[Sidenote: Power of the sheriff to omit boroughs.]

The proper const.i.tuents therefore of the citizens and burgesses in parliament appear to have been--1. All chartered boroughs, whether they derived their privileges from the crown, or from a mesne lord, as several in Cornwall did from Richard king of the Romans;[261] 2. All towns which were the ancient or the actual demesne of the crown; 3. All considerable places, though unincorporated, which could afford to defray the expenses of their representatives, and had a notable interest in the public welfare. But no parliament ever perfectly corresponded with this theory. The writ was addressed in general terms to the sheriff, requiring him to cause two knights to be elected out of the body of the county, two citizens from every city, and two burgesses from every borough. It rested altogether upon him to determine what towns should exercise this franchise; and it is really incredible, with all the carelessness and ignorance of those times, what frauds the sheriffs ventured to commit in executing this trust. Though parliaments met almost every year, and there could be no mistake in so notorious a fact, it was the continual practice of sheriffs to omit boroughs that had been in recent habit of electing members, and to return upon the writ that there were no more within their county. Thus in the 12th of Edward III.

the sheriff of Wilts.h.i.+re, after returning two citizens for Salisbury, and burgesses for two boroughs, concludes with these words:--"There are no other cities or boroughs within my bailiwick." Yet in fact eight other towns had sent members to preceding parliaments. So in the 6th of Edward II. the sheriff of Bucks declared that he had no borough within his county except Wycomb; though Wendover, Agmondesham, and Marlow had twice made returns since that king's accession.[262] And from this cause alone it has happened that many towns called boroughs, and having a charter and const.i.tution as such, have never returned members to parliament; some of which are now among the most considerable in England, as Leeds, Birmingham, and Macclesfield.[263]

It has been suggested, indeed, by Brady,[264] that these returns may not appear so false and collusive if we suppose the sheriff to mean only that there were no resident burgesses within these boroughs fit to be returned, or that the expense of their wages would be too heavy for the place to support. And no doubt the latter plea, whether implied or not in the return, was very frequently an inducement to the sheriffs to spare the smaller boroughs. The wages of knights were four s.h.i.+llings a day, levied on all freeholders, or at least on all holding by knight-service, within the county.[265] Those of burgesses were half that sum;[266] but even this pittance was raised with reluctance and difficulty from miserable burghers, little solicitous about political franchises. Poverty, indeed, seems to have been accepted as a legal excuse. In the 6th of E. II. the sheriff of Northumberland returns to the writ of summons that all his knights are not sufficient to protect the county; and in the 1st of E. III. that they were too much ravaged by their enemies to send any members to parliament.[267] The sheriffs of Lancas.h.i.+re, after several returns that they had no boroughs within their county, though Wigan, Liverpool, and Preston were such, alleged at length that none ought to be called upon on account of their poverty.

This return was constantly made, from 36 E. III. to the reign of Henry VI.[268]

[Sidenote: Reluctance of boroughs to send members.]

The elective franchise was deemed by the boroughs no privilege or blessing, but rather, during the chief part of this period, an intolerable grievance. Where they could not persuade the sheriff to omit sending his writ to them, they set it at defiance by sending no return.

And this seldom failed to succeed, so that, after one or two refusals to comply, which brought no punishment upon them, they were left in quiet enjoyment of their insignificance. The town of Torrington, in Devons.h.i.+re, went further, and obtained a charter of exemption from sending burgesses, grounded upon what the charter a.s.serts to appear on the rolls of chancery, that it had never been represented before the 21st of E. III. This is absolutely false, and is a proof how little we can rely upon the veracity of records, Torrington having made not less than twenty-two returns before that time. It is curious that in spite of this charter the town sent members to the two ensuing parliaments, and then ceased for ever.[269] Richard II. gave the inhabitants of Colchester a dispensation from returning burgesses for five years, in consideration of the expenses they had incurred in fortifying the town.[270] But this immunity, from whatever reason, was not regarded, Colchester having continued to make returns as before.

The partiality of sheriffs in leaving out boroughs, which were accustomed in old time to come to the parliament, was repressed, as far as law could repress it, by a statute of Richard II., which imposed a fine on them for such neglect, and upon any member of parliament who should absent himself from his duty.[271] But it is, I think, highly probable that a great part of those who were elected from the boroughs did not trouble themselves with attendance in parliament. The sheriff even found it necessary to take sureties for their execution of so burthensome a duty, whose names it was usual, down to the end of the fifteenth century, to endorse upon the writ along with those of the elected.[272] This expedient is not likely to have been very successful; and the small number, comparatively speaking, of writs for expenses of members for boroughs, which have been published by Prynne, while those for the knights of s.h.i.+res are almost complete, leads to a strong presumption that their attendance was very defective. This statute of Richard II. produced no sensible effect.

[Sidenote: Who the electors in boroughs were.]

By what persons the election of burgesses was usually made is a question of great obscurity, which is still occasionally debated before committees of parliament. It appears to have been the common practice for a very few of the princ.i.p.al members of the corporation to make the election in the county-court, and their names, as actual electors, are generally returned upon the writ by the sheriff.[273] But we cannot surely be warranted by this to infer that they acted in any other capacity than as deputies of the whole body, and indeed it is frequently expressed that they chose such and such persons by the a.s.sent of the community;[274] by which word, in an ancient corporate borough, it seems natural to understand the freemen partic.i.p.ating in its general franchises, rather than the ruling body, which, in many instances at present, and always perhaps in the earliest age of corporations, derived its authority by delegation from the rest. The consent, however, of the inferior freemen we may easily believe to have been merely nominal; and, from being nominal, it would in many places come by degrees not to be required at all; the corporation, specially so denominated, or munic.i.p.al government, acquiring by length of usage an exclusive privilege in election of members of parliament, as they did in local administration.

This, at least, appears to me a more probable hypothesis than that of Dr. Brady, who limits the original right of election in all corporate boroughs to the aldermen or other capital burgesses.[275]

[Sidenote: Members of the house of commons.]

The members of the house of commons, from this occasional disuse of ancient boroughs as well as from the creation of new ones, underwent some fluctuation during the period subject to our review. Two hundred citizens and burgesses sat in the parliament held by Edward I. in his twenty-third year, the earliest epoch of acknowledged representation.

But in the reigns of Edward III. and his three successors about ninety places, on an average, returned members, so that we may reckon this part of the commons at one hundred and eighty.[276] These, if regular in their duties, might appear an over-balance for the seventy-four knights who sat with them. But the dignity of ancient lineage, territorial wealth, and military character, in times when the feudal spirit was hardly extinct and that of chivalry at its height, made these burghers vail their heads to the landed aristocracy. It is pretty manifest that the knights, though doubtless with some support from the representatives of towns, sustained the chief brunt of battle against the crown. The rule and intention of our old const.i.tution was, that each county, city, or borough, should elect deputies out of its own body, resident among themselves, and consequently acquainted with their necessities and grievances.[277] It would be very interesting to discover at what time, and by what degrees, the practice of election swerved from this strictness. But I have not been able to trace many steps of the transition. The number of practising lawyers who sat in parliament, of which there are several complaints, seems to afford an inference that it had begun in the reign of Edward III. Besides several pet.i.tions of the commons that none but knights or reputable squires should be returned for s.h.i.+res, an ordinance was made in the forty-sixth of his reign that no lawyer practising in the king's court, nor sheriff during his shrievalty, be returned knight for a county; because these lawyers put forward many pet.i.tions in the name of the commons which only concerned their clients.[278] This probably was truly alleged, as we may guess from the vast number of proposals for changing the course of legal process which fill the rolls during this reign. It is not to be doubted, however, that many practising lawyers were men of landed estate in their respective counties.