o Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN T1EI10RY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS KD3989.T2i n 2" UnlVerSi,yLibrary English constitutional history A text-bo 3 1924 017 831 243 (flnrndl IGaui ^rlfnnl Hibrary Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017831243 English Constitutional H istory. English Constitutional History. FOR STUDENTS AND OTHERS. THOMAS P. JTASWELL-LANGMEAD, B.C.L., late vinerian scholar in the university of oxford, of Lincoln's inn, barrister-at-law. LONDON: STEVENS & HAYNES, ILato ^ttbltssfjers, BELL YARD, TEMPLE BAR. i87S- LONDON I BRADBURY, AGNEW, & CO.,. PRINTER5, WH1TEFRIARS. DEDICATED TO THE HON. T. CHARLES AGAR-ROBARTES, M.A. OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, BY HIS FRIEND, THE AUTHOR. PREFACE. The aim of this work is to give a concise but com- prehensive history of the origin and development of the English Constitution. It is intended, primarily, as a Text-book for students, but I trust that it may also prove not unacceptable to the general reader. In its com- position, while necessarily making ample use of Hallam's masterpieces, I have availed myself largely of the writings of Professor Stubbs and Mr. Freeman, which have thrown so much new light upon the earlier phases of our Constitution. In the most recent period, the Constitutional History of Sir Erskine May has been my chief guide. But numerous other authorities have been consulted, and to all of them references are given in the notes, both as vouchers for the facts stated, and as indi- cations to the student where to seek for further and fuller information. The arrangement adopted is mainly chronological, but with occasional deviations from the strict order, where I have thought it most convenient to treat of some par- ticular topic in a continuous manner. viii Preface. Ecclesiastical matters have been considered, through- out, under a purely political aspect, and in tracing the growth of our Institutions, I have endeavoured, as far as possible, to keep aloof from all party spirit. Though adding somewhat to the bulk of the work, I have deemed it advisable to give in full the texts of Magna Charta, the Petition of Right, and the Bill of Rights, — the three great landmarks of English Con- stitutional History. The Temple, March, 1875. CONTENTS. CHAPTER I. FROM THE TEUTONIC CONQUEST OF BRITAIN TO THE NORMAN CONQUEST OF ENGLAND. PAGE. Origin of the English — -Teutonic Conquest of Britain — Germanic origin of English Institutions — -Ancient German polity — The successful leaders assume the regal title — Conversion of the English to Christianity — National character of the Church — The Bretwaldas — Invasions of the Danes — Constitution of English nation from 7th to nth century — Appropriations of the Soil — The moegths — Folkland and Bookland — Territorial divisions — The Township — The Hundred— The Shire — The Burgh — Guilds — The City of London — Ecclesiastical divisions — Ranks of the People — Slaves — Freemen (Eorls and Ceorls) — Growth of Thegnhood — Its effects — The Ceorls — Ealdormen — The Clergy — The King — Nature of early English kingship — The iEthelings — The Witen- agemot — Its Constitution — Its Powers — Judicial system — The Frith- borh, or Frankpledge — The Hundredmoot — The Shiremoot — Private Soken or Liberties — Procedure — Compurgation — Ordeal — Legally ap- pointed witnesses to bargains — Punishments — Ancient English laws — Early attempts at Codification — Alfred as a legislator — Diversities of local customs — Gradual development from personal to territorial orga- nization — Increased power of the great nobles — The great Earldoms under Cnut and Eadward the Confessor .... 1 — 44 CHAPTER II. THE NORMAN CONQUEST. Claimants to the Crown on death of Eadward the Confessor — Earl Harold — Elected and crowned King — William Duke of Normandy — English Kingship Elective — The Conquest — William is elected and crowned ' King of the English ' — Theoretically a constitutional king — Continuity of the Constitution — The Norman race — Effects of the Conquest — Feudalism — Its gradual establishment — The English redeem their lands — Insurrections, followed by extensive confiscations — Continental ■ Feudalism— Sub-infeudation — Commendation — Growth of Feudalism in England — Difference between English and Continental Feudalism — Feudal tenure of land without feudal principles of government — Gemdt of Salisbury — Domesday Book — Checks to the power of the Feuda- tories — Great Earldoms abolished — Counties Palatine — Feudal tenures — Their services and incidents — The Conqueror's policy national rather than feudal — National Witan continued — William's Laws— He renews the Law of Eadward the Confessor — Wager of Battle — Englishry — The Forest Laws — The Church — Separation of Spiritual from Temporal Contents. PAGE. Courts — William's canons of the Royal Supremacy — Judicial organi- zation — Curia Regis — Justiciars appointed — Riches of the Conqueror — His great power — Harshness of his rule .... 45 73 CHAPTER III. REIGNS OF THE NORMAN AND FIRST ANGEVIN KINGS. Reign of William Rufus — Ranulf Flambard — William seeks support of the English against the Baronage — and promises good laws — Henry I. : His Charter of Liberties — ' Malae consuetudines ' abolished — Forests retained — So-called ' Leges Henrici Primi' — Henry courts and receives the support of the native English — Marries a niece of Eadgar ^Etheling — Triumphs over the rebellious barons — Raises up new men — Strengthens jurisdiction of County and Hundred Courts — Charters to Boroughs — Royal administration centralized and systematized — Occa- sional Circuits of the judges — Severity in punishing offences against the Laws — Question of Investitures — Stephen : His two Charters — Anarchy of his reign — Creation of new earldoms — Arrest of the three bishops — Wretched condition of the People — Peace of Wallingford — Scheme of reform — Death of Stephen — Henry II. : The Angevin Dynasty — Charter of Liberties — Henry's policy — Establishes law and order — The two great constitutional results of his reign — Administrative reforms — Itinerant Justices — The Grand Assize — Scutage — Constitu- tions of Clarendon — Richard I. ; Character of his reign — Excessive taxation — Ways of raising money — Popular rising under William-with- the-Beard — Constitutional opposition of the Clergy — Administration of the kingdom by the Justiciars — Longchamp, William of Coutance, Hubert Walter, and Geoffrey Fitz-Peter — Deposition of Longchamp — Principles of representation and election in the assessment of taxes and appointment of County Coroners — Advance of the Boroughs towards independence — Summary of Richard's reign .... 74 — 97 CHAPTER IV. MAGNA CHARTA. The three great fundamental compacts between the Crown and the Nation — Magna Charta— An Act of the whole people under the leadership of the barons — in reality a treaty of peace between the King and his people in arms — its moderate, practical, and conservative character — based on the Charter of Henry I. and the Law of Eadward the Confessor — Events of John's reign which led to the granting of the Charter — Separation of Normandy from England — Decay of feudalism — Refusal of the barons to follow the King on foreign service — John's personal character— His struggle with the Papacy — and with the barons — Councils at St. Alban's — Confederacy of the barons at St. Edmund's — They present their Demands to the King at the Temple — John's unsuccessful attempts to break up the combination against him Assembly of the barons in arms at Stamford— their march to London — Support of the Londoners — John grants the Charter — Original text of John's Charter— Analysis and summary of its principal clauses- Explanatory notes— Events of John's reign subsequent to the giant of the Charter— Henry III.'s first re-issue of the Charter— Alterations and omissions — His second Charter and Charter of the Forests Omis- sions, alterations, and new clauses— His third Charter— Subsequent confirmations ....... gg, j.. Contents. xi CHAPTER V. ADMINISTRATIVE SYSTEM UNDER THE NORMAN AND PLANTAGENET KINGS. TAGE. Personal share of the King in all branches of Administration — The Justiciar — The Chancellor — Curia Regis — Fiscal Administration — The Exche- quer — Sources of revenue — Important changes in taxation under Henry II. — Judicial system — Changes in Curia Regis under Henry II. - — Division into three courts of King's Bench, Common Pleas, and Exchequer — Itinerant justices established by Henry II, — Judges of Assize and Nisi Prius — Trial by Jury — its origin and development — The King's Concilium Ordinarium — Rise of the Chancellor's jurisdic- tion — Equitable jurisdiction of the Court of Chancery— Statutes in restraint of the Council and Chancery — Magnum Concilium — Origin of judicial character of House of Lords — and of the legislative charac- ter of the Privy Council — Judicial powers of Privy Council — Origin of Court of Star Chamber — Police and military organization — The Frithborh — The Fyrd — The Huscarls of Cnut — Employment of mercenary troops — Assize of Arms, A.D. 1181 — The ancient Fyrd revived — Amalgamation of the alodial and feudal military systems under Henry III. and Edw. I. — Expansion of ancient police organiza- tion concurrently with that of the Fyrd — Conservators of the Peace — Coroners — Watch and Ward — Statute of Winchester, 13 Edw. I. — ■ Commissions of array — Decay of national local force — Reorganized as „ fi the National Militia in 1 75 7 ...... H 2 — ISo CHAPTER VI. THE SUCCESSION TO THE CROWN. The English kingship elective both before and after the Conquest — but restricted under ordinary circumstances to the members of one Royal House — -Growth of the doctrine of Hereditary Right — Accession of William Rufus — Henry I. — Stephen — Henry II. — Richard I. — John — Henry III. — Edward I. — Edward IL — Hereditary succession established — But subject to the paramount right of Parliament to re-settle the succession — House of Lancaster — The crown entailed on Henry IV. and his issue — House of York — Doctrine of indefeasible hereditary right first promulgated on their behalf— Deposition of Henry VI. and election of Edward IV. — Richard III. — The crown entailed by Parliament on his issue — Henry VII. — The crown entailed by Parliament on him and his issue — Parliamentary settle- ments of the succession in the reign of Henry VIII. — He is empowered by Parliament to limit the succession by letters patent or by his last will — He devises the crown — Act passed on accession of Queen Mary — Queen Elizabeth's title — Act passed on her accession— It is made treason to deny the. power of Queen and Parliament to limit the succession — James I.'s claim to the throne — Doctrine of indefeasible hereditary right — Revolution of 1688 — Deposition of James II. — Election of William of Orange — Act of Settlement . . . 187 — 209 xii Contents. CHAPTER VII. ORIGIN OF PARLIAMENT. PAGE. A * Commune Concilium Regni ' has always existed — The Witenagem6t — Curia Regis — Its constitution — The 'greater Barons' — Hereditary character of the House of Lords — Spiritual Peers — Lay peerages for Life — Ideas of election and representation familiar to the nation — Council of St. Alban's, 1213, first historical instance of summons of representatives to a National Council — Four instances of county representation in Parliament prior to De Montfort's Parliament in 1265 — Increased use of elected county representatives for fiscal and other matters — Name of Parliament — Parliament at Oxford, 1258 — ' Provisions of Oxford ' — Simon de Montfort, ' Founder of the House of Commons ' — Representatives of Towns summoned to Parliament by him — Progress of the Towns — Representative machinery first employed for judicial and fiscal purposes — First symptoms of representation of Towns in the National Assembly — Transitionary period in the constitution of Parliament, 1265-1295 — Parliament during latter years of Henry III. — Parliaments under Edward I. — End of transitionary period — Perfect representation of the Three Estates of the Realm — Inferior clergy represented in Parliament under preemunientes clause — Convocation— Inferior clergy cease to attend Parliament in the 14th century — but preserve the power of self-taxation till 1664 — Clergy not now a separate Estate of the Realm— Government by King, Lords and Commons established under Edward I. — And the right of arbitrary- taxation surrendered — Events leading to the ' Confirmatio Chartarum ' — Bull ' Clericis Laicos ' — 'Maltolte' on wool — Infractions of Magna Charta — Foreign service — Earls of Hereford and Norfolk — A Grand Remonstrance presented to the king — grant of the Confirmatio Char- tarum, 1297 — ' De Tallagio non Concedendo ' . . . . 210—236 CHAPTER VIII. GROWTH OF PARLIAMENT (a.D. 1265-1399). The National Council gradually wins back an active control over all the affairs of the nation — Division of Parliament into two Houses — Importance of the fusion of the Knights of the Shire and the Burgesses in one assembly — Civil equality of all ranks below the peerage — Gradual growth of the power of Parliament under Edward II. and Edward III.— Regularity of meeting of Parliament— Annual Parlia- ments — The Commons establish three great rights : (i.) Taxation with- out consentillegal— (Appropriation of supplies— Audit of publicaccounts) (ii.) Legislation, concurrence of both Houses necessary— (Difference between Ordinances and Statutes)— (iii.) Right of Commons to inquire into administrative abuses— (First instance of parliamentary impeach- ment — Commons intervene in questions of War and Peace)— Reign of Richard II. (1.) From 1377 to the coup d'Uatoi 1389 ; (2.) From 1389 to the second coup d'ttat of 1397 ; (3.) From 1397 to the King's deposition in 1399— Insurrection of the Villeins in 1381— History of Villeinage ' 237—282 Contents. xiii CHAPTER IX. parliament under the lancastrian and yorkist kings (a.d. 1399-1485). PAGE. Characteristics of the Lancastrian Period — Increased importance of the Commons — Taxation : conditional grants, appropriation of supplies, examination of accounts — Dependence of supply on redress of grievances — First collision between the two Houses — All money-bills must originate in the Commons — King ought not to notice matters pending in Parliament — Petitions assume the form of complete statutes under the name of Bills — Suspending and Dispensing powers of the Crown — Right of inquiry into Public Abuses and of controlling the Royal Administration — Petition of 31 Articles in 8 Hen. IV. — Right of the Commons to be consulted as to Peace or War, and in -all questions of National interest — Impeachment — Bills of Attainder — Privilege of Parliament — (1) Freedom of Speech; (2) Freedom from arrest; (3) Right of Commons to determine contested elections — Early Abuses in Parliamentary elections — Regulated by Statutes — The County Fran- chise enjoyed by all freeholders — Reaches its maximum under Henry IV. —First disfranchising statute, 8 Hen. VI. — Both electors and elected required to be resident — Knights of the Shire required to be of gentle birth — Property qualification of members — Borough Elections — Who were the electors in Boroughs ? — History of Regencies — Parlia- ment under Edward IV. and Richard III. — Benevolences — Sir John Fortescue's testimony to the freedom of the Constitution . . 2 °3 33 1 CHAPTER X. THE TUDOR PERIOD (a.D. 1485-1603) — REIGNS OF HENRY VII., HENRY VIII., EDWARD VI., MARY. General characteristics of the Tudor Period — Hen ry VII. : Checks on the royal authority at his accession — His laws — Obedience to a king de facto — Revival of the criminal jurisdiction of the Star Chamber — Royal exactions — Benevolences — Morton's Fork — Empsonand Dudley —Parliament seldom summoned — Henry VIII. : Taxation — Wolsey's attempt to intimidate the Commons — Forced loans and benevolences — Treatment of Reed and Roach — Release of the King's debts by Parliament — New treasons created by statute — Illustrious victims — Bills of Attainder — Act giving the King's proclamations the force of law — Causes of the increased power of the Crown — Popularity of Henry VIII. — Consolidation of the Kingdom — Wales — Ireland — Poyning's Laws — Edward VI. and Mary : Character of their civil government — Law of Treason — Proclamations — Insurrections of 1549 — Act against unlawful assemblies — Violence of Mary's reign — Powers of a Queen Regnant settled by Act of Parliament — Reviving independence of the Commons — met by creation of rotten boroughs and by influencing the elections ..... 332 — 368 CHAPTER XI. THE REFORMATION IN ENGLAND. The Reformation under Henry VIII. political and legal, rather than religious — Doctrinal changes under Edward VI. and Elizabeth an unintentional consequence — But both were the effect of causes long in xiv Contents. PAGE, operation — Early and continuous national character of English Church — Growth of Papal power from the Conquest till reign of Henry III.— Resistance of Edward I. to the Papal claims — Answer of the English Parliament to letter of Boniface VIII.— Series of Statutes passed to check aggressions of the Pope — De Asportatis Religiosorum, 35 Edw. I., 1306— Statute of Provisors, 25 Edw. III., 1350— Statute forbidding Citations to the Court of Rome, 1353 — Statute of 13 Ric. II., 1389 — Boniface IX. brings matters to a crisis, 1391 — Petition of the Commons — Statute of Praemunire, 16 Ric. II., 1392 — Boniface yields— Rise of the Lollards — John Wycliffe, 1360— and his ' poor priests ' — The Bible translated and disseminated — Revolutionary and socialistic tendencies of*Wycliffe's followers — Their implication in insurrection of the Villeins, 1381 — Conservative reaction in consequence — Henry IV. supports the prelates — Statute De Hasretico Comburendo, 1401 — Petition of the Commons for a secularization of Church property — Insurrection of the Lollards under Sir John Oldcastle, 1412 • — Lollardry repressed, but not extinguished— ^Revives at beginning of 16th century — The 'Association of Christian Brothers' — Abuses of the Ecclesiastical system — Benefit of Clergy — Dr. Standish and Con- vocation — Case of Richard Hunne — Luther at Wittenburg, 15 17 — Henry VIII. disposed to curb ecclesiastical abuses, but opposed to doctrinal changes— He gains the title of 'Defender of the Faith' — Influence of writings of Luther and other foreign reformers on English Lollardism — Henry VIII. 's divorce suit — The Reformation. Parlia- ment, 1529-153^6 — Session I. : Petition of Commons for a Scrutiny into Ecclesiastical abuses — Answer of the bishops — Henry's criticism thereon — Statutes in restraint of Probate fees, Mortuaries, Pluralities, Non-residence and clerical trading — Sess. II. : Proctors and pardoners punished as vagabonds — The clergy in a pramunire — Pardoned on payment of a large sum and admitting the King's supremacy — The laity in a pramunire — pardoned by Act of Parliament — Sess. III. : Act to restrain citations from one diocese to another — Annates taken from the Pope — Sess. IV. : Act for restraint of Appeals to Rome — Sess. V. : Act for submission of the clergy — Bishops to be nominated by the King's conge 1 . iVUire — Payment of Peter-pence and other papal exactions forbidden — Henry's first Royal Succession Act — Oath imposed thereby — Execution of Sir Thomas More and Bishop Fisher ■ — Sess. VI. : Royal proclamation against the Pope, 1534 — Act of Supremacy — First-fruits annexed to the Crown — Sess. V II. : Dissolu- tion of Smaller Monasteries — ' Pilgrimage of Grace,' 1536 — The Larger Monasteries dissolved— Act of the Six Articles, 1539 — English trans- lation of the Bible, 1538 — 'Institution' and '.Erudition of a Christian Man' — Edward VI. — The Religious Reformation under him — Insur- rections, 1 549 — Persecution — Mary — Re-establishment of Papal religion — The Marian persecution — The Reformation promoted by it . 369 410 CHAPTER XII. THE TUDOR PERIOD — REIGN OF ELIZABETH (A.D. 1558-1603). Ecclesiastical polity of Elizabeth — Acts of Supremacy and Uniformity, 1559 — First-fruits and tenths restored to the Crown — The XXXIX Articles of Religion — Relations of the Reformed National Church to the Crown — Refusal of oath of supremacy by all but one bishop — The clergy generally conform — Persecuting statutes — Act of 1562 — Speech of Lord Montagu against it— The Bishops' Act, 1566— The Roman Catholics suspected of disloyalty — Elizabeth's title to the throne purely parliamentary — The Catholics in favour of hereditary claims of Contents. xv PAGE. Mary Queen of Scots— Title of House of Suffolk — Harsh treatment of Lady Catherine Grey — Treason of Edmund and Arthur Pole — Effect of Mary's flight into England — Rebellion of Duke of Norfolk and of Earls of Northumberland and Westmoreland, 1569— Bull of Pius V., 1570 — Statutes of 157 1 — Jesuits and missionary priests in England — Act of 1580-81 — The Jesuit Campian— Plots against the Queen's life — Association for her defence— Act against Jesuits, 1585 — Execution of Mary Queen of Scots, 1587 — Spanish Armada, 1588 — Act of 1593 — Persecution of Protestant sectaries— Puritan conventicles — Attacks on Episcopacy — Cartwright's ' Admonition -to the Parliament' — Arch- bishop Grindal — Archbishop Whitgift— High Commission Court established, 1583 — Martin Mar-prelate tracts — Puritan libellers punished with death — Influence of Scotch ecclesiastical affairs on England — Act of 1593 against Protestant Nonconformists— Political results of persecution of Puritans— Civil Government of Elizabeth— Its despotic character — Political trials unjustly conducted — Courts-martial — Illegal commitments — Remonstrance of the judges against them — Illegal proclamations — Restrictions on printing and bookselling — Elizabeth's economy — occasional forced loans, which are punctually repaid— Administration of Lord Burleigh — Puritan ascendency in House of Commons — Conflicts with the Crown (1) as to settlement of the succession, (2) as to ecclesiastical reforms — Speech of Peter Wentworth in 1576 — Mr. CopeVBill and Book, 1588 — Parliament of 1593— Elizabeth's definition of liberty of speech — The succession question again brought forward by Peter Wentworth — Morice's bill for reform of ecclesiastical courts — Causes of the general submissiveness of the Commons — Successful opposition to Monopolies, 1601 — Poor Laws— Privileges of Parliament — Storie's case, 1547 — Copley's case, 1557 — Hall's case, 1581 — Dr. Parry's case, 1585— Bland's case, 1586 — Long's case, 1571 — Assertion by Commons of right to originate money bills, 1593 — The constitution, though frequently violated in practice, remained theoretically intact — Aylmer's ' Harborowe of True and Faithful Subjects,' 1559 — Mr. Speaker Onslow's address to Queen Elizabeth, 1566 — Harrison's 'Description of England,' 1577 — Hooker's ' Ecclesiastical Polity ' — Sir Thomas Smith's ' Commonwealth ' . 411 — 459 CHAPTER XIII. THE STEWART PERIOD (a.D. 1603-1688) FROM THE ACCESSION OF JAMES I. TO THE PASSING OF THE PETITION OF RIGHT. JAMES I. (1603-1625)— Tendency of political and religious thought at his accession — The Puritan party — Effect of James's Presbyterian education — His political antipathy to Nonconformity — Arbitrary nature of his civil government — Theory of Divine right — First Parliament, 1604 — Sess. I. Privileges of Commons vindicated — Complaints of grievances — Commons' justification of their proceedings— Sess. II. and III. 1605-7. Expulsion of Sir Christopher Pigott — Proposed Union between England and Scotland — Intermission of Parliament, 1607-10 — Illegal impositions on merchandise — Bates's case, 1606 — The 'Book of Rates,' 1608 — Sess. IV. 1610. Remonstrance against Impositions — Complaints against High Commission Court and Royal Proclamations — Cowell's ' Interpreter ' — Answer of the judges as to legality of Proclamations — The ' Great Contract ' — Sess. V. 1610. Parliament dissolved, Feb. 161 1 — James attempts to rule without Parliament — His method of raising money — His financial difficulties — The ' Under- xvi Contents. PAQE. takers' — Second Parliament, 1614. Impositions denounced— Bishop Neile — Dissolution of the 'Addled Parliament,' June, 1614 — Mem- bers sent to the Tower — Importance of the step— Six years of arbitrary government — A general Benevolence — Protests against it— Imprison- ment of Oliver St. John — Prosecution of Peacham, 1615 — Collision between the King and Chief Justice Coke — Case of Commendams, 1616 — Dismissal of Coke from the Chief Justiceship — His disgrace an historical landmark — Foreign policy of James — Third Parliament, 1621. Sess. I. Revival' of Impeachments — Impeachments of Mom- pesson, Mitchell, and Lord Chancellor Bacon, 1621, and of the Earl of Middlesex, 1624 — Later cases of Impeachment — Violent proceedings against Floyd — Sess. II. Prosecution of Coke and Sandys — Irritation of the Commons — Petition against Popery and the Spanish match — James forbids the House to meddle with mysteries of State — Remon- strance of the Commons — The King's Reply — Protestation of Dec. 18, 1621 — Parliament dissolved, Feb. 1622 — Imprisonment of Members — Fourth Parliament, 1624. Act against Monopolies — Constitutional results of James's reign — Charles I. (1625-1649) — His political cha- racter — First Parliament, 1625. Its dissolution, August, 1625— Oppo- sition to Buckingham — Speech of Sir R. Cotton — Second Parliament, 1626. Impeachment of Buckingham — -Imprisonment of Members — Attack on Privileges of the Lords — Earl of Arundel — Earl of Bristol — Hasty Dissolution, June, 1626 — Expedients to raise money — A general loandemanded and enforced — Darnel's case, 1627 — War with France — Third Parliament, 1628, Sess. I. The King's Speech — Committee of Grievances— Commons' resolutions — Conference with the Lords — Speech of Sir Edward Coke — Petition of Right drawn up by the Commons — The Lords propose an amendment which is discussed and rejected — The King consults the Judges — The King's first answer — The Royal Assent given in dueform — Text of Petition of Right, with notes— Prorogation of Parliament — Sess. II. 1629. The three Resolu- tions of the Commons— Dissolution of Parliament, March, 1629 . 460—525 CHAPTER XIV. THE STEWART PERIOD FROM THE PETITION OF RIGHT TO THE RESTORATION (A.D. 1629-1660). Determination of Charles I. to govern without a Parliament — Imprison- ment of Sir John Eliot, Selden, and other members of the Commons — Some of the popular party aceept office— Eleven years of Despotic Government — Expedients to raise a revenue— Royal Proclamations — Servility of the Judges— Punishments inflicted by Star Chamber- Cases of Bishop Williams and Osbaldiston — Leighton — Lilburne — Prynne, Burton, and Bastwick— Case of Ship-money— Hampden's refusal to pay— Extra-judicial opinion of the Judges — Arguments on the case — Judgment for the Crown -Clarendon's opinion of the effects of the Judgment-^The Scottish Rebellion— Distress of the Govern- ment — The Short Parliament, 1640. Its moderation and loyalty — Demand of an immediate supply— The Commons insist on redress of grievances— Speech of Edmund Waller— Conference with the Lords on grievances— Exclusive right of Commons to initiate Money Bills- Charles offers to give up Ship-money for twelve subsidies— The Commons decline to purchase immunity from an illegal imposition Speech of Secretary Vane— Parliament dissolved after three weeks' session— Effect of the Dissolution— The King resumes his despotic Contents. xvii PAGE courses— Convocation — promulgates a new set of Canons — New oath for preventing Innovations in Keligion — Failure of Military operations against the Scots — Great Council of Peers/at York — The Long Parlia- ment, 1640. Its characteristics — Speech of Pym on the state of the Kingdom — Impeachment of Strafford, Laud, Finch, Windebank, and others — Victims of the Star Chamber released — Assistance voted to the Scots — Salutary Acts of the Long Parliament — Triennial Act — Tonnage and Poundage not to be levied without consent — Ship- money abolished — Star Chamber abolished — High Commission Court abolished — Purveyance restricted — Compulsory Knighthood abolished — Extensions of Royal Forests annulled — Impressment declared illegal — Acts against Dissolution of'Parliament without its own consent, and To disable the Clergy from exercising temporal jurisdiction — Adjournment of the Parliament — Schism in the Constitutional Party — Defections from the popular ranks — The King's view as to the invalidity of statutes — Threatenings of force — The Parliamentary Leaders resolve to appeal to the People — Journey of the King to Edinburgh — its object — Negotiations, for giving office to the popular leaders — Alarm caused by the ' Incident ' in Scotland, and the Rebellion in Ireland — Reassembling of Parliament, Oct. 1641 — Motion of Pym on the new Army Plot — The Grand Remonstrance laid on table of the House — organized Court opposition to it — seven days' debate — the final debate — The Remonstrance carried by eleven votes— Character of its contents — Motion to print the Remonstrance — Protest of Mr. Palmer —Impeachment and attempted Arrest of the Five Members — Its critical nature — Question of the Militia — End of the Constitutional Contest between Charles I. and his Parliament — The Revolutionary Period, 1642-1660— Results of the Revolutionary Period . . . 526—580 CHAPTER XV. THE STEWART PERIOD — FROM THE RESTORATION TO THE PASSING OF THE BILL OF RIGHTS (A.D. 1660-1689). Charles II, (1660-1685). Chief constitutional statutes of his reign — Abolition of military tenures — Act against tumultuous petitioning — Right of Subject to petition the Crown and Parliament — Its historical development — Appropriation of supplies — Growth of National Debt — Commission of Public Accounts — Habeas Corpus Act, 1679 — Ancient remedies for illegal detention — Their inadequacy — Abortive attempts at a remedy — Jenkeis case, 1676 — Provisions of the Habeas Corpus Act, 1679 — Its defects — Remedied by Bill of Rights and Sta- tute 56 Geo. III. c. 100 — Acts against Nonconformists — Corporation Act, 1661 — Test Act, 1673 — Events which led to its being passed — Parliamentary Test Act, 1678 — Act of Uniformity, 1662 — Conventicle Act, 1664 — Five-Mile Act, 1665 — Persecution of Nonconformists — Attempts at comprehension — Origin of the Whig and Tory parties — and of their names — Differences in principle between the two parties The Exclusion Bill — Its failure, and prostration of the' Whigs — Des- potic power of Charles II. during the last years of his reign — James II. (1685-1688). His despotic designs — Circumstances favourable to &em — Illegal levy of the Customs — A Parliament summoned — Its servile character — Its opposition to the King's design to overthrow the Test Act punished by prorogation and ultimate dissolution — Increase of the Standing Army — Growth of Standing Army — The dispensing b xviii Contents. PAGE power — Hales 1 ! case — Deprivation of the Vice-Chancellor of Cam- bridge—Expulsion of the Fellows of Magdalen College, Oxford — New High Commission Court— The King's Declaration for Liberty of Con- science — Its motive — It is generally resisted by the Nonconformists — Second Declaration of Indulgence — Ordered to be read in all churches — Imprisonment and prosecution of the Seven Bishops — Invitation to William Prince of Orange — James endeavours to retrace his steps — Efforts of Louis XIV. on his behalf— Landing of the Prince of Orange — Flight of James — William is requested to assume the provisional government — The Convention Parliament — Parties in the nation — Resolutions of the Commons — Opposition in the Lords — They give way, and vote that William and Mary be proclaimed King and Queen — The Commons suggest conditions — Postponement of reforms — Declaration of Right — Tender and acceptance of the Crown — Salutary consequences of the Revolution — Text of the Bill of Rights, with notes ......... 581—628 CHAPTER XVI. PROGRESS OF THE CONSTITUTION SINCE THE REVOLUTION. The Legal Code of the Constitution — Growth of the Unwritten or Customary Constitution — Constitutional provisions of the Act of Settlement, 1700 — Law of Aliens — Growth of the Cabinet — The Concilium Ordinarium — The Privy Council — Cabinet Council — The ' Cabal ' Ministry, 1671 — Temple's scheme for reorganization of the Privy Council, 1679 — The Cabinet system resumed — Change in its essential characteristics — Party government— The 'Junto' — Attempted revival of ancient authority of Privy Council by Act of Settlement — Final establishment of the Cabinet system under the first two Georges — Important effects of their indifference to English politics — Macaulay's description of the Minis- terial system — Increased security of the Crown and of ministers under it — Exclusion of placemen and pensioners from the House of Commons — The ' Place Bill' of 1742— Lord Rockingham's Civil List Act, 1782 — Exclusion of the judges from House of Commons — (I.) Kingship since the Revolution —Legal prerogatives of the Crown — now practically vested in its responsible ministers — Personal influence of the Sovereign — Reaches its lowest point under George I. and George II. — Long struggle of George III. against the Ministerial system — Disastrous effects of his policy — His wretched education — His determination to govern — His secret counsellors— Premiership of Lord Bute, 1762 — His sudden fall — Continued secret influence — Ultimate dismissal from Court — Ar- bitrary measures of the king during the Bute and Grenville ministries — The Rockingham ministry, 1765 — Organized opposition in Parliament by the ' King's friends ' — Declaration of the Commons against the use of the King's name, 1783 — Influence of the King attains its maximum during Lord North's ministry, 1770-82 — The royal veto — Mr. Dunning's resolutions on the influence of the Crown, 1780 — Fall of Lord North's ministry, 1782 — Abrupt dismissal of the Coalition Ministry, 1783 — Critical relations of the King and Parliament — Mr. Pitt premier, 1783 — Triumph of Pitt and the King — Diminution of personal influence of the Sovereign since the reign of George III. — Its occasional assertion — Sudden dismissal of Lord Melbourne's ministry • by William IV., 1834— Short premiership of Sir Robert Peel, followed by recall of the Melbourne ministry— The 'Bedchamber question,' 1839 —Sir Robert Peel's resolution of want of confidence in the ministry, Contaits. xix PAGE 1 841 — He becomes Premier — The Queen's memorandum on the relations of a Secretary of State to the Crown, 1850 — Constitutional right of dismissing a minister — asserted in the removal of Lord Palmerston. from the foreign secretaryship, 185 1 — Increased power of the Executive — Revenues of the Crown — The Civil List — Crown lands — Private property of the Sovereign — (IT.) The House of Lords — Number of Peers — Rapid increase under the Stewart Kings — Addition of 16 representative peers of Scotland in 1706 — Attempts to limit the prerogative of creating peers — Profuse creations under George III. — Pitt and the peerage — Addition of 28 representative peers of Ireland in 1801 — Changes in Character and Composition of House of Lords — Its political position — Its opposition to the Reform Bills of "1831-32 — over- come by threatened creation of peers — Earl Grey's vindication of the proposed creation — An extraordinary creation of peers equivalent to a dissolution — Abolition of proxies — Attempts, to revive life-peerages — (III. ) The House of Commons — Number of members — Defects of the representative system — Under George III. the House had ceased to represent the People — Parliamentary Reform advocated by Lord Chatham in 1766 — Wilkes' scheme of reform, 1776— Mr. Pitt's advocacy of reform, 1 782-85 — The question revived after the Peace of 1815 — Provisions of the Reform Act of 1832 — The Scotch and Irish Reform Acts, 1 832 — The Reform Acts of 1 867-68 — Suppression of bribery and intimidation at Elections — The Ballot Act, 1872 — Summons, duration, and intermission of Parliament — The Parliament of 1399 — Convention Parliament of 1660 — Convention Parliament of 1688 — Triennial Act, 1641 — Triennial Act, 1694 — Septennial Act, 1715 — Abrogation of old rule that Parliament was dissolved by death of the Sovereign — Privilege of Parliament since the Revolution — sometimes wielded by the Executive for oppression of popular liberty — Expulsion ofSirR. Steele, 1714 — Proceedings against Wilkes, 1763 — Disqualifi- cation of members — Cases of Smith O'Brien, 1849, O'Donovan Rossa, 1870, John Mitchel, 1875 — Abuse of privilege of Commitment — Case of the printer Mist, 1721 — Case of Mr. Alex. Murray, 1751 — Case of Sir Francis Burdett, 1810 — Publication of Debates — Contest with the Printers, 1771 — and with the Lord Mayor and Aldermen of London — The Lord Mayor (Brass Crosby) and Alderman Oliver com- mitted to the Tower — Reporting still a breach of privilege!— Exclusion of strangers — Publication of Division lists— and of Parliamentary Reports and papers — Political results of reporting — Conflict between the Commons and Courts of Law as to publication of papers affecting character — Stockdale v. Hansard — Right of Parliament to publish established by Act 3 & 4 Vict. u. g—Wason v. Walter, 1868— (IV.) Toleration and growth of Religious Liberty — Toleration Act, 1689 — Toleration only partially established — Temporary re-action under Anne — Acts against Occasional Conformity and the Growth of Schism, 171 1, 1713 — Annual Indemnity Acts under George II. — Relaxation of penal religious code under George III. — Judgment of House of Lords in case of the Corporation of London and the Dissenters, 1767 — Repeal of Test and Corporation Acts, 1828 — Catholic Emancipation, 1829 — Completion of Civil enfranchisement of Dissenters —Jewish disabilities— Admission of Jews to Parliament, 1858 — Civil regis- tration of births, marriages, and deaths, 1836 — Dissenters' Mar- riage Bill, 1836— Universities Test Act, 1871— (V.) Liberty of the Press— The Censorship — The Press under James I. and Charles I. — Continuance of the Censorship under the Commonwealth— Milton's Areopagitica — Licensing Act, 1672 — To publish anything concerning the Government is declared criminal by the judges— Unofficial news- papers stopped — Their place supplied by the Coffee-houses and News- letters — Licensing Act revived, 1685 — Finally expired, 1695 — The xx Contents. PAGE Press theoretically free, but still subject to restraints— Stamp Duty on Newspapers— Law of Libel— No. 45 of the North Briton— Appre- hension of Wilkes and others on a general warrant — Leach v. Money, 1765 — General Warrants declared illegal — Entick v. Carrington — Seizure of Papers — Junius's Letter to the King, 1769— Strained inter- pretation of law of Libel — Trial of Woodfall for publishing the Letter to the King, 1770 — Mr. Fox's Libel Act, 1792 — Reactionary period in growth of Liberty of Opinion, 1792-1832 — Lord Campbell's Libel Act, 1843 — Freedom of the Press completely established . . 625 — 7c6, ERRATA. Page 13, 5th line from bottom, should read thus — "Land thus held in absolute property has been called " &c. Page 158, 5th line from bottom, _/&r "Et autem" read "Est autem." Page 296, 8th line from bottom, for "30 Edward III." read "50 Edward III." Page 376, 15th line from bottom, for "lord sindirectly " read "lords indirectly. " Page 464, 15th line from bottom, for " was " read " were." ENGLISH CONSTITUTIONAL HISTORY. CHAPTER I. FROM THE TEUTONIC CONQUEST OF BRITAIN TO THE NORMAN CONQUEST OF ENGLAND. THE first step in a history of the Institutions of the Origin of the English people is to determine the elements of the ngls English nationality. It is not unusual to speak of the English as a mixed race formed out of the fusion of the Britons, the Anglo-Saxons, the Danes, and the Normans ; but this form of expression is apt to convey an erroneous idea of the facts. No modern European nation is, indeed, of pure unmingled race ; but in all some one element has maintained a clear and decided pre-eminence. In the English people this pre-eminent element is the German, or Teutonic. The Teutonic Teutonic con- conquest of Britain was something more than a mere a!d! 450-600!"' conquest of the country : it was in all senses a national occupation, a sustained immigration of a new race, whose numbers, during a hundred and fifty years, were continually being augmented by fresh arrivals from the Fatherland. Before the end of the 6th century, the Teutonic in- vaders had established a dominion in Britain, extending From the Teutonic Conquest of Britain [Ch. No general commixture of from the German Ocean to the Severn and from the English Channel to the Firth of Forth. The Britons were soon driven into the western parts of the island where they maintained themselves for a time in several small states. The remnant of the country which they retained was indeed at first of considerable extent, in- cluding not only modern Wales but the great kingdom of Strathclyde, stretching from Dumbarton to Chester, together with Cornwall, Devon, and part of Somerset. But the eastern boundary of this territory yielded more and more to the influence of the invaders ; and it was only in the mountains of Wales and Cumbria that the Britons preserved for a considerable time -their ever-decreasing independence. During the long-continued and pecu- liarly ferocious series of contests between the natives and invaders, vast numbers of the flower of the British race perished. Many Britons sought refuge in emi- gration to the Continent. Some of the less warlike doubtless remained as slaves to the conquerors, and a still greater infusion of the Celtic element may have been effected by the intermarriages of the victors with the women of the vanquished. 1 But the Germanic ele- ment has always constituted the main stream of our race, absorbing in its course and assimilating each of the other elements. It is ' the paternal element in our system natural and political.' 3 Since the first immi- 1 This hypothesis is strengthened by the fact that the few words in our lan- guage which have been retained from the original Celtic (about thirty-two in number, excluding proper names) have all relation to inferior employ- ments, and for the most part apply exclusively to articles of feminine use or to the domestic occupations of women. (See a list of these words, made by the late Mr. Garnett, in Transactions of the Philological Society, vol. i. p. 171.) On the other hand, the tribal or family organiza- tion of the Germans, and the peculiar honour given to women among them, point to the strong improbability of any general amalgamation through in- termarriage. The Britons also were long averse to such an admixture. — See Stubbs, Const. Hist. i. 62. 2 Stubbs, Select Charters, Introductory Sketch, p. 3. See also Free- man, Norm. Conq. vol. i. ; Stubbs, Const. Hist. vol. i. ; and Squire, Anglo-Saxon Government in Germany and England (1745). The argu- ments in favour of the opposite theory, of the permanence of the British race, are very ably stated by Mr. L. O. Pike in his Origin of the English. i-] to the Norman Conquest of England. 3 gration, each infusion of new blood has but served to add intensity to the national Teutonic element. The Danes were very closely allied in race, language, and institutions to the people whom they invaded ; and the Normans, though speaking a different language, and possessing different political and social institutions, were yet descended from a branch of the same ethnic stock. But whatever be the proportion in which the various orof institutions national elements have coalesced, it is certain that the principles of our constitution are in nowise derived from either Celt or Roman. The civilization of the Romans, for the most part, departed with them. The Roman law entirely disappeared from our judicial system. It was indeed re-introduced from the Continent, in the 13th century, as a consequence of the revived study of jurisprudence which had there taken place. As a system it was soon rejected in England ; but some of its forms and many of its principles were absorbed into and amalgamated with the system which our own courts of justice had been gradually developing for themselves out of the primitive national usages. Our language, our political and judicial institutions, are all inherited from our Teutonic ancestors ; each has undergone a spon- taneous development during the course of centuries, each has assimilated new elements ; but the national identity of race, language, and institutions has never ceased to exist. 1 The germs of our present constitution and laws must, Germanic origin therefore, be sought in the primeval institutions of the institutions, first Teutonic immigrants. Of these institutions we have little positive information. According to Bede, a 1 ' The very diversity of the elements which are united within the isle of Britain serves to illustrate the strength and vitality of the one which for thirteen hundred years has maintained its position either unrivalled or in victorious supremacy. If its history is not the perfectly pure development of Germanic principles, it is the nearest existing approach to such a development' — Stubbs, Const. Hist. i. 6. 2 Bede (bom a.d. 672, died 735) records very few circumstances relative to the English conquest of Britain from his own sources, but for the most B 2 4 From the Teutonic Conquest of Britain [Ch. the original immigrants consisted of the three kindred tribes of Angles, Saxons, and Jutes. Of these, Tacitus does not even mention the Saxons or Jutes, and only- names the Angles as one of a number of North German tribes, without fixing their locality. In the 2nd century Ptolemy identifies the seats of the Saxons and Angles as the district between the Elbe, the Eyder, and the Warnow, now constituting the modern Duchies of Hol- stein, Lauenburg, and Mecklenburg. Before the age of Bede the name of Saxon had been extended from the designation of a single insignificant tribe to that of a wide confederacy of North German tribes. Retaining their independence of Rome, tenacious of their heathen worship and their primitive barbarism, they habitually plundered the richer nations who had succumbed to the Roman sway. Scarcely, if at all, affected by contact with Roman influences, the Teutonic tribes who invaded Britain had probably a less distinctly marked political organization than that of their kindred on the banks of the Rhine and the Danube, a picture of whose institutions has been handed down to us in the pages of Caesar and Tacitus. But after making due allowance for this difference, for the indistinctness of the picture itself, and for the contradictory ways in which it has been interpreted, we may yet gather from this source some general knowledge of the primeval institutions of our Teutonic forefathers. Ancient German In the time of Tacitus, Germany appears to have been polity. divided among a number of independent tribes, who had ceased to be nomadic and occupied fixed seats in settled communities. The whole land of the settlement belonged to the community (the Mark, or Vicus), who annually allotted part transcribes the ' Liber querulus de Excidio Britanniae ' of Gildas the Wise, a monk of Bangor, who was born in 516, and composed his history about the year 560. i.] to the Norman Conquest of England. the arable land among the freemen, while the pasture land was both held and used in common. An aggregate of communities (vici) of the same tribe constituted the pagus (the Gau, or shire) ; and an aggre- gate oipagi made up the civitas, or populus. In their political life the monarchic, aristocratic, and democratic elements were clearly marked ; but the ultimate sovereignty seems to have resided in a free and armed people. 1 Some of the tribes had kings, selected from particular families; others had not. But the king had only a limited power, 3 and was rather the representative of the unity of the tribe than its ruler. In the Vici and pagi justice was administered by prin- cipes, elected by. the nation in its popular assembly, and assisted in each district by a hundred companions or assessors. 3 They had also Duces, their leaders in war, elected probably from among the principes, but whose authority was based, not like that of the kings, on noble birth, but on personal valour. 4 Each district contributed its hundred fighting men to the national host. The principes were attended by bands of retainers {comites), who protected the person of their lord in war and upheld his state in peace, 8 receiving in return such presents as their leader could confer. The power of all the chiefs, whether reges, duces, or principes, was greatly limited. All important State affairs 1 ' De minoribus rebus principes consultant, de majoribus omnes ; ita tamen ut ea quoque quorum penes plebem arbitrium est, apud principes pertractentur.' — Tac. Germ. xi. The well-known words of Montesquieu, speaking of the English constitu- tion, ' Ce beau systeme a ete trouve dans les bois,' have reference to the existence of this triple constitution among the Germans. 2 Nee regibus innnita aut libera potestas. — Tac. Germ. vii. 3 Eliguntur in iisdem consiliis et principes qui jura per pagos vicosque reddunt. Centeni singulis ex plebe comites consilium sirmil et auctoritas ad sunt. Id. t. xii. 4 Reges ex nobilitate, duces ex virtute sumunt. Id. c. vii. 6 In pace decus, in bello praesidium. Id. c. xiii. • From the Teutonic Conquest of Britain [Ch. were discussed and determined in the national assem- blies, held at stated times and attended by all the freemen of the tribe. Questions of minor importance were settled by the principes meeting as a separate body, and this body also appears to have taken the initiative in bringing matters before the larger assembly. Below the freemen was a class of men intermediate between the slave and the freeman. They were not slaves, but they had no political rights. They were the cultivators of the soil which they held under the freemen, to whom they rendered a part of its produce as rent. Last of all came the mere slaves, chiefly made up of prisoners of war and of freemen who had been degraded for some crime. Among the freemen there were differences of rank and social status; some were of noble blood and some were not ; but this distinction carried with it no inequality of political rights. Military valour was shared by the Germans with all the northern nations ; but one of their national traits was remarkable from the earliest times — the respect paid by them to the women of their race, who on their side were celebrated for an exceptional chastity. The tie of kindred was strong and all-per- vading ; it formed the basis of social organization, and entered into the military, the legal, and the territorial arrangements. 1 Side by side with it may be discerned the germ of Feudalism in the relation existing between the princeps and his comites, though it was as yet uncon- nected with the tenure of land. Such were the general features of the political and social system which our Teutonic forefathers brought with them to their new island home. But the process of migration and conquest necessarily produced certain 1 On the importance of the family tie, see Tac. Germ., in relation to the host, c. 7 ; to feuds, c. 21 ; to inheritance, c. 20 ; the relations witness the punishment of the unfaithful wife, c. 19 ; marriages with alien nations unusual, c. 4. — Stubbs, Const. Hist. i. 32. I.] to the Norman Conquest of England. 5 modifications and developments of the primitive institu- tions. One of the earliest of these developments was the institution of royalty. According to the Saxon Chronicle, the chieftains of The Teutonic the first settlers were only distinguished by the title of t ^ e rega i ^tie. Ealdorman, or Heretoga, the former word expressing the civil, the latter the military, aspect of the same office. 1 But the successful leader soon won for himself a position much stronger than that of any chief in the old land, and, in most cases, assumed the regal title, as more accurately denoting his altered relation to his followers. The word Cyning, or King, closely connected as it is with the word Cyn, or Kin, marked out the bearer of the title as the representative of the race, the head and leader of the people, not the lord of the soil. His reputed descent from Woden, the god from whom all the English kings professed to descend, invested with a semi-sacred cha- racter the authority which his own prowess and the will of the people had conferred upon him. The conversion of the English to Christianity exercised £ on I ers !?? of an important influence upon the national development. Christianity. The Church not only introduced a higher civilization, (a.d. 597-681.) mitigated the original fierceness of the heathen conque- rors, softened their pride of birth and race, and exalted the power of the intellect above that of brute force, but also supplied a new and powerful bond of union to a divided people. Once within the pale of the universal Christian Church, the English, moreover, were necessarily brought into relations with the general political society of Europe ; and in the highly organized system of eccle- siastical synods they found a pattern by which to regu- late the procedure of their own political assemblies. 1 a.d. 449 (of the Jutes) : 'Heora heretogan wseron twegen gebrofta, Hengest and Horsa.' A. D. 49s (of the West Saxons) : ' Her comen twegen ealdormen on Brytene, Cerdic and Cynric his sunu.' — Sax. Chron. apud Freeman, Norm. Conq. i. 77. 8 From the Teutonic Conquest of Britain [Ch. National From the first the Church entered into the closest the Church. alliance with the State, and while paying respectful deference to the Roman See, grew up with a distinctly marked national character. Theodore of Tarsus, en- throned Archbishop of Canterbury in 668, reduced the whole ecclesiastical organization of the various kingdoms into one national Church. 1 Henceforward the Church existed as a united, central, and national institution, in spite of the separation and frequent hostility of the states to which the clergy individually belonged. Thus the ecclesiastical unity preceded and pointed the way to the civil unity of the nation. After the first missionary prelates had passed away, the highest spiritual dignities were filled by Englishmen, members, for the most part, of noble and powerful families. The tie thus created between the clergy and the State was strengthened by the union of secular and spiritual functions. The bishops were prominent members of the Witenagemdt, and fre- quently acted as the chief ministers of the king. They also shared with the ealdormen in the local judicial administration. The Church thus entered into close combination with the civil organization, gradually inter- twining itself with all the feelings and customs of the people, and acquiring in the process its exceptionally national character. TheBretwaldas. During the whole period commonly called the Hep- tarchy, 3 the land was full of petty kings or princes, some one of whom, from time to time, obtained a forcible predominance over his neighbours. Bede enumerates seven who are said to have enjoyed such a predominance or leadership over nearly the whole island ; and the 1 ' Isque primus erat in archiepiscopis cui omnis Anglorum aecclesia manus dare consentiret. '— Beda, Hist. Ecc. iv. 2; Kemble, Saxons in England, ii. 366. 2 There were at least nine, if not ten, independent states founded by the invaders ; and there was never a confederate government composed of the different states as members. The word Heptarchy is not therefore accurate, but it is convenient if taken to denote the greater prominence of sever* states out of the number. i.] to the Norman Conquest of England. 9 Saxon Chronicle speaks of Ecgberht as ' the eighth king who was Bretwalda.' 1 What were the exact nature and extent of the dominion of these Bretwaldas is very- doubtful ; but we may accept as a fact that each of the seven had acquired and exercised some kind of supre- macy over all his neighbours. The existence of the Bretwaldas would seem to indicate certain earlier at- tempts at a union of the whole English race, which was ultimately carried out by the West Saxon kings in the 9th and 10th centuries. 2 The three kingdoms of Wessex, Mercia, and Northum- bria at length became predominant. Ecgberht, King of the West Saxons, not only added to his dominions the dependent kingdoms of Kent and Essex, but com- pelled the extensive states of Mercia and Northumbria to acknowledge his supremacy. Still the Mercians, East Anglians, and Northumbrians retained each their ancient line of kings, and neither Ecgberht nor his five immediate successors assumed any other title than that of King of the West Saxons. This is the only style used by ^Elfred in his will. The consolidation of the various kingdoms into one Invasions of the was hastened by the invasions of the Danes, by which (787-1070.) the three minor kingdoms of Mercia, Northumbria, and East Anglia were overwhelmed, and even that of the West Saxons was brought to the brink of destruction. Led by their Vikingr, or Sea-kings, these 'Slayers of the North ' ravaged almost every European coast during the 9th and 10th centuries. They were closely akin to the 1 Beda, Hist. Eccles. ii. 5 ; Chron. Sax. An. 827. Mr. Kemble points out that of six manuscripts in which the passage quoted occurs, only one reads ' Bretwalda.,' four have Bryten-, and one Breten-wolda. ' The true meaning of this word, which is compounded of wealda, a. ruler, and the adjective bryten, is totally unconnected with Bret or Bretwealh, the name of the British aborigines. Bryten is derived from bredtan, to distribute, dis- perse : it is a common prefix to words denoting wide or general dispersion, and when coupled with wealda, means no more than an extensive, powerful king— a king whose power is widely extended.'— Saxons in England, ii. 20. 2 Freeman, Norm. Conq. i. 28. io From the Teutonic Conquest of Britain [ch. English, and spoke another dialect of the same common Teutonic speech. Their institutions exhibited a striking similarity to those of the English, and even where dif- fering in details were generally governed by identical principles. The first recorded descent of the Danes upon the shores of England occurred towards the end of the 8th century. They re-appeared again and again, and at length, instead of making mere predatory excursions, began to form permanent settlements in the island. The genius and heroism of ^Elfred x alone rescued the English from their imminent peril. Yet he was never able to expel the Danes from England, or to become its sole master. By the treaty of ^Elfred and Guthrum (A.D. 879), the limits of the Danish occupation southward were defined ' upon the Thames, along the sea to its source, then right to Bedford, and then upon the Ouse to Watling Street.' To the North it extended as far as the Tyne, and on the West to the mountain districts of Yorkshire, Westmoreland, and Cumberland. Throughout this dis- trict — the Denalagu, or region where the Danish law was in force — the armies, as the Saxon Chronicle expressly terms them, of the Danes continued to occupy the land, governing, as a military aristocracy, the subject Anglian population. The victorious arms of Alfred's three able and energetic successors, Eadward, ^Ethelstan, and Eadmund, succeeded in reducing the Danes to some- thing like real submission, and also in obtaining an acknowledgment of supremacy over the bordering nations of the isle of Britain. At length, in 959, Eadgar, having outlived the last Danish king of Northumbria, received the crown as King of all England, uniting in his person, as the elect of all three provinces of England, 1 Dr. Freeman thus eloquently sums up the character of the great Alfred : ' A saint without superstition, a scholar without ostentation, a warrior all whose wars were fought in defence of his country, a conqueror whose laurels were never stained by cruelty, a prince never cast down by adversity, never lifted up to insolence in the day of triumph,— there is no other name in history to compare with him.' — Norm. Conq. i. 51. i.] to the Norman Conquest of England. 1 1 the threefold sovereignty of the West Saxons, Mercians, and Northumbrians. 1 The English and the Anglo-Danes gradually coalesced, the English language and institu- tions maintaining the ascendency, though appreciably influenced by contact with the foreign element in their midst. After the death of Eadgar the Peaceable (A.D. 975), the minority and feeble character of iEthelred the Unready provoked fresh attacks from Denmark. These now as- sumed the form of a regular war of conquest, conducted by the kings of a country which had at length been admitted within the civilizing pale of Christendom, and whose people were no longer ferocious pirates, like their ancestors in the former invasions. The English royal house was for a time supplanted by its Danish rival, but the polity of the kingdom was not changed. The English still outnumbered their conquerors ; and on the death of Harthaknut, in 1042, the ancient line of Cerdic re- gained the throne. With the exception of the reigns of Harold II. and the first four Norman kings, descendants of the House of Cerdic have occupied it ever since. Before the Norman Conquest, the various Teutonic tribes had coalesced with one another and with the Anglo- Danes, and become fused into one nation. We have now to inquire 1 what was the constitution of the English Constitution of nation from the 7th to the nth century; a constitution 1^^^°°^ which survived the Norman Conquest, and which in all century, its essential principles— developed and adapted from time to time to meet the requirements of successive generations, but still the same — has continued down to our own day. Of the exact process by which the territory conquered Appropriation by each of the invading tribes was divided among the colonists, we have no positive knowledge. But there can be little doubt that a principle of allotment was generally 1 Robertson, Hist. Essays, p. 203 ; Stubbs, Const. Hist. i. 173. 12 From the Teutonic Conquest of Britain [Ch* General allot- ment probable. The mcegths. Private estates of the chiefs. Public lands. Absolute owner- ship in severalty soon became the general rule. Folkland. adopted based upon the existing divisions of the host into companies, each consisting of a hundred warriors united by the tie of kinship. The allotment of land made to each hundred warriors would be by them sub- divided, according to the minor divisions of the kindred, into mcegths, or districts occupied by a greater or less number of settlers closely connected by the family tie. Certain portions of the land appropriated to the separate mcegths were held in absolute ownership by the heads of families ; other portions were both held and cultivated in common as the common property of the community. Besides the land thus divided among the simple freemen, a further portion of the territory was retained by the chief of the tribe as his private estate ; and it is probable that the nobles also and leaders of subordinate rank either themselves appropriated or received grants of estates in severalty. All the land which remained after satisfying these various claimants was the common property of the whole colony — the Folkland. As the various tribal colonies or shires coalesced into kingdoms, and the kingdom of Wessex absorbed the other kingdoms and developed into the kingdom of England, the Folkland of the shire became in turn the Folkland of the provincial kingdom and of the English nation. Although tenure of land in common by local com- munities continued to subsist, and has left its traces in the common lands of townships and manors of the present day, absolute ownership in severalty, which had existed from the first, soon became the general rule. During the pre-Norman period, therefore, the whole land of England may be broadly divided under the two great heads of (i) Public, or Folkland ; and (2) Private, or Bocland. (1.) Folkland, the land of the folk or people, was the common property of the nation. It formed the main source of the State revenues, and could not be alienated I.] to the Norman Conquest of England. 13 without the consent of the national council. But it might be held by individuals, subject to such rents and services as the State, in its landowning capacity, should think fit to determine. While, however, it continued to be Folk- land, its alienation was only temporary, and could not be in perpetuity ; so that at the expiration of the term for which it had been granted it reverted to the nation. It was closely analogous to the Ager Publicus of the Romans, and its individual holders to the Roman possessores. (2.) Bocland 1 was land held in full ownership, either Bookland. as part of an original allotment, or as having been sub- sequently severed from the Folkland, with the consent of the nation, and appropriated to individuals in per- petuity, subject merely to such burdens as the State, in its political as distinguished from its landowning capacity, might impose upon its members. Folkland, even when granted to individuals for a life or lives or other term in severalty, always retained cer- tain marks of its public character in the burdens to which it was liable. Its possessors were bound to assist in the execution of various public works, including the repair of royal vills ; and they might be called upon to entertain the king and great men in their progress through the country, and to furnish carriages and horses for their service. Bocland, on the contrary, was released from all public burdens, except the trinoda necessitas, or liability of its owners to military service and to a contribution for 1 B6cland=land conveyed by book or charter, the usual mode after the introduction of writing. But at an earlier period the conveyance was symbolized by the delivery of a staff, spear, arrow, branch of a tree, or piece of turf. This practice was continued after the introduction of writing, and long survived in our law of real property, in a modified form, as the » livery of seisin, the essential part of a feoffment. Though all land, on being granted in perpetuity, ceased to be Folklani it was not strictly Bficland, unless conveyed in writing. Land thus held isSJbsolute property, and has been called in different Teutonic dialects *'&/, odal, or alod. Similar to the possessors of B6cland, both in name and with reference to the nature of their possessions, were the ' libellario nomine possidentes ' and the ' libellarii' of the Longobards and Franks. H From the Teutonic Conquest of Britain [Ch. The Folkland becomes terra regis. Territorial divisions. The Township. the repair of fortresses and bridges {fyrd, burh-bdt, and brycge-bdt). B6cland might be held for various estates or interests. It was generally alienable inter vivos, devisable by will, and transmissible by inheritance. It might be entailed or limited in descent, in which case the owner was de- prived of the power of alienation. The king, like any of his subjects, had private estates of B6cland which did not merge in the Crown, and over which he exercised the same powers of disposition as a private individual. 1 In the course of time much of the Folkland was converted into B6cland. Large grants were made to the Church, and also to individuals ' for specific purposes, as for the pay of the king's thegns (thegn-land), of the gerefa (gerefa-land, reve-land), or of the officers of the royal household. Both Folkland and Bdcland might be leased out to free cultivators, in such quantities and on such terms as the holders pleased. When so leased out, it was termed loenland (land lent or leased). As the regal office advanced in dignity and power, a tendency set in to substitute the king for the nation as the owner of the national lands ; the word Folkland gradually fell out of use, and was replaced by the term terra regis, or crown-land. This tendency reached its climax after the Norman Conquest, when the whole land of the kingdom was regarded as the demesne land of the king, held of him by a feudal tenure. The community of the magth, united by the tie of kindred, early gave place to the purely territorial division of the township or vicus, composed of a body of allodial owners associated by the tie of local contiguity, and having its tun-gemSt, or assembly of freemen, and a 1 From the will of King Alfred it is evident that both he and his grandfather Ecgberht had the absolute disposal of their bocland.— Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England, p. 143, sq. i.] to the Norman Conquest of England. 15 tun-gerefa as its headman or chief executive officer. 1 The townships were grouped together into hundreds, or as they were called in the Anglian districts, wapentakes. An aggregation of hundreds constituted the shire, and the union of shires made up the kingdom. The Hundred, or Wapentake, a district answering to The Hundred, the pagus of Tacitus, probably has its origin in the primitive settlements, varying in geographical extent, of each hundred warriors of the invading host. The term Wapentake, which clearly has reference to the armed gathering of the freemen, points to the military origin of the hundred, like that of the hmrred in the Scandinavian kingdoms. 2 In England the names Hundred and Wapen- take first appear in the laws of Eadgar (A.D. 959-975) in connection with the police organization of the king- dom. By this time the term Hundred, originally denot- ing certain personal relations of the inhabitants of a district, had probably acquired its territorial signification as a subdivision of the shire or kingdom to which it belonged. It had its hundred-gemdt, which took cog- i^ organization, nizance of all matters, criminal and civil, arising within 1 ' The tun is originally the enclosure or hedge, whether of the single farm or of the enclosed village, as the burh is the fortified house of the powerful man. The corresponding word in Norse is gardr, our garth or yard. The equivalent German termination is heim, our ham ; the Danish form is by (Norse, bii= German, bau).' — Stubbs, Const. Hist. i. 82. 2 The difficulty in determining the principle upon which the Hundreds were established is increased by the fact' that they are most numerous in some of the smaller shires. Kent contains 61, Sussex 65, Dorsetshire 34 hundreds ; while Lancashire has only six. A probable explanation of this disproportion, and a further argument in favour of a military origin, may be derived from the fact that the small southern counties were the districts first conquered, and therefore the most densely populated by the new settlers. The county of Kent is divided into six lathes, of nearly equal size, having the jurisdiction of the hundreds in other shires. The lathe may be derived from the Jutish ' lething' (in modern Danish 'leding') — a military levy. The singular division of Sussex into six ' rapes ' (each of which is subdivided into hundreds), seems also to have been made for military purposes. The old Norse ' hreppr' denoted a nearly similar territorial L division. (See Lappenberg, England under the Anglo-Saxons, by Thorpe, i. 96, 107.) Two counties, Yorkshire and Lincolnshire, were divided into Trithings or Thirds (which still subsist in Yorkshire under the corrupted name of Ridings), and these were subdivided generally into wapentakes. i6 From the Teutonic Conquest of Britain [Ch. The Shire. Organization and officers. The ealdorman. the hundred, and was attended by the thegns of the hundred and by the representative town-reve and four men from each township. The chief executive officer was the hundred-man or hundreds-ealdor, who convened the hundred-gem6t. He was generally, and at first always, elective ; but as the personal gradually gave way to the territorial influence, he was in many places nominated by the thegn or other great man to whom the hundred belonged. The division into Shires (a word originally signifying merely a subdivision or share of any larger whole) is very ancient, but the period at which this arose is uncertain. We have evidence that in Wessex the division into shires existed as early as the end of the 7th century, long anterior to the time of Alfred, to whom their institution has been popularly attributed. In the laws of Ini, King of the West Saxons (a.d. cir. 690), provision is made for the case of a plaintiff failing to obtain justice from his scir-man, or other judge ; if an ealdorman compound a felony it is declared that he shall forfeit his scir ; and the defendant is forbidden to secretly withdraw from his lord into another scir. As Wessex gradually annexed the other kingdoms, these naturally fell into the rank of shires ; or where they themselves had arisen from the union of several early settlements, were split up into several shires on the lines of the old tribal divisions. 1 The government of the shire was administered by an ealdorman and the scir-gerefa, or sheriff. The ealdor- man (the princeps of Tacitus and the comes of the Nor- mans) was originally elected in the general assembly of 1 On the various origin of the different historical shires or counties, see Stubbs, Const. Hist. i. 109. ' The constitutional machinery of the shire represents either the national organization of the several divisions created by West Saxon conquest ; or that of the early settlements which united in the Mercian kingdom, as it advanced westward ; or the rearrangement by the West Saxon dynasty of the whole of England on the principles already at work in its own shires.' — Id. no. i.] to the Norman Conquest of England. if the nation ; but there was a constant and increasing tendency to make the office hereditary in certain great families. On the annexation of an under-kingdom, the ealdormanship usually became hereditary in the old royal house ; but in all cases, down to the Norman Conquest, the consent of the King and Witan was required at each devolution of the office. Sometimes several shires were administered by one ealdorman, but this arrangement did not involve an amalgamation of the separate organizations of each shire. The sheriff, The Sheriff, or vice-comes, as he was termed after the Norman Con- quest, was the special representative of the regal or central authority, and as such usually nominated by the king. 1 He was judicial president of the scir-gemdt, or shiremoot, executor of the law, and steward of the royal demesne. At first the sheriff seems to have exercised co-ordinate authority with the ealdorman, but gradually the civil administration became almost entirely concentrated in the former, leaving to the latter, as his principal function, the command of the military force of the shire. Unlike the office of ealdorman, the sheriffdom, as a rule, never became hereditary. This circumstance was productive of important constitu- tional effects after the Norman Conquest, as the kings found ready to hand a machinery which enabled them to effectually assert the central authority in every shire, and thus to check the growth of local feudal jurisdictions. The burh, or town, was in its origin ' simply a more The Burgh, strictly organized form of the township.. It was probably in a more defensible position ;' had a ditch or mound in- stead of the quickset hedge or " tun " from which the township took its name ; and as the " tun " was originally 1 ' It is probable, on early analogy, that the gerefa was chosen in the folkmoot ; but there is no proof that within historical times this was the case, although the constitutionalists of the thirteenth century attempted to assert it as a right, and it was for a few years conceded by the Crown.' — Stubbs, Const.. Hist. i. 113. C 1 8 From the Teutonic Conquest of Britain [ch. the fenced homestead of the cultivator, the "burh" was the fortified house and court-yard of the mighty man — the king, the magistrate, or the noble.' * Other ' burhs ' were gradually developed out of the village township, or were founded on the folkland. In these the municipal authority was similar to that of the Its organization, free township. The chief magistrate was the gerefa, in mercantile places the port-gerefa, in others the wic or tun-gerefa, who presided in the burh-gemot, or meeting of all the freeholders of the burh. In the larger towns, which were made up of a cluster of townships or lord- ships, the organization more nearly resembled that of the hundred than that of the simple township. Side by side with the town constitution, and to a certain extent influencing its development, was the The Guilds, organization of the municipal guilds. The ancient municipal guilds (so called from gildan, to pay or con- tribute) were voluntary associations for ecclesiastical or secular purposes, analogous to our modern clubs. By some the guilds have been regarded as an inheritance from the Roman municipal constitution ; but an un- interrupted Roman descent can nowhere, in England, be traced. The similarity to be found in the oldest municipal denominations and institutions on both sides of the German Ocean points rather to a common origin in the ancient heathen sacrificial guilds, in which the common banquet, ' the cradle of many a political insti- tution,' formed a leading feature. 2 The suppression of these devil's guilds (deofol-gild), as they were termed in the Christian laws, proving extremely difficult, they were for the most part continued, with the substitution of Christian for heathen rites. Some guilds had for their principal object the mutual defence of their mem- bers and the preservation of peace ; and by the laws of The 'frith-gild.' Ini and iElfred, in case of homicide of or by one of the 1 Stubbs, Const. Hist. i. 92. 3 Lappenberg, England under the Anglo-Saxons, by Thorpe, i. 350. i.] to the Norman Conquest of England. 19 members, the guild-brethren were to share in the receipt or payment of the wergild} But the form of guild which exercised the most The merchant- permanent and extensive influence on the town consti- gm tution was the merchant-guild, ' ceapmanne gild,' or hansa, to which all the traders of the town were, as a rule, obliged to belong. At first independent of the governing body of the town, the merchant-guild gradually coalesced with it, monopolizing the rights which had originally belonged to all the free inhabitants. But the process was a very slow one, and though it began prior to the Norman Conquest, its principal development'pro- ceeded during the two centuries following that event. 'In the reign of Henry II.,' says Professor Stubbs, 'there can be little doubt that the possession of a merchant-guild had become the sign and token of municipal independence ; that it was in fact, if not in theory, the governing body of the town in which it was allowed to exist. It is recognized by Glanvill as identical with the communa of the privileged towns, the municipal corporation of the later age.' 2 The city of London has always occupied an exceptional The City of position, and though it has never stood to the rest of London - England in the same peculiar relation as Paris to the rest of France, it has just claims to be regarded even in very early times as ' a member of the political system.' 3 1 In the ' Judicia civitatis Lundoniae,' drawn up under King .^Ethelstan (a. d. cir. 930) by the bishops and reeves belonging to London, and con - firmed by the pledges of the 'frith-gegildas,' is preserved a complete code of a ' frith-gild ' of the city of London, with minute directions for the pursuit and conviction of thieves, the exacting of compensation, and the carrying out of the dooms which ^Ethelstan and the Witan had enacted at Greatley, Exeter, and Thundersfield. — Select Chart. 65. 2 Const. Hist. i. 418. a Hallam, Midd. Ages, iii. 24. (12th Edit.) Accordingto Roger Hoveden, the citizens of London, on the death of iEthelred II. , j oined with a portion of the nobility in raising Eadmund Ironside to the throne. They concurred, say the Saxon Chronicle and William of Malmesbury, in' the election of Harold I. ; and in later times they took an active part in the civil war between Stephen and Matilda. They sided with the barons in their con- tests with the Crown, and assisted in deposing Longchamp, the chancellor 20 From the Teutonic Conquest of Britain [Cn Its constitution analogous to that of the shire. Charter of the Conqueror to London. Whilst the constitution of ordinary towns resembled that of the hundred, the constitution of London was analogous to that of the shire. From time immemorial the city has been divided into wards, answering to the hundreds in the shire, each having its own wardmoot, answering to the hundred court, and its elected ealdorman. The chief municipal court— the general assembly of the citizens — was called the Hus-thing, whence the modern name Husting, a term derived probably from the Danes, and signifying a court or assembly in a house as dis- tinguished from one held in the open air. Side by side with* the jurisdiction of the several wardmoots, land- owners, both secular and ecclesiastical, possessed their exclusive sokens or jurisdictions within the city and its outlying liberties. These private sokens gradually gave way before the increasing power of the citizens ; but while they existed, the inclusion of an aristocratic ele- ment within the municipality doubtless added much to its power and influence, until the citizens were strong enough to hold their own as a purely commercial community. Towards the close of the pre-Norman period the two chief officers of the city, the representatives of the civic unity of the various wards, townships, parishes, and lord- ships of which it was composed, were the Port-reeve and the Bishop. It is to these two that the charter of William the Conqueror confirming to London the laws which it had enjoyed under King Eadward is addressed : ' William the king greets William the bishop and Gos- frith the port-reeve, 1 and all the burghers within London, and justiciar of Richard I. The mayor of London was one of the twenty- five barons empowered to maintain the provisions of the Great Charter. 1 ' The -word port in fort-reeve is the Latin " porta " (not portus), where the markets were held, and although used for the city generally, seems to refer to it specially in its character of i mart or city of merchants. The port-gerefa at Canterbury had a close connexion with the "ceapmanne gild ; " and the same was probably the case in London, where there was a cnihten-gild, the estates of which were formed into the ward of Portsoken. From the position assigned to the port-reeve in this writ, which answers to that given to the sheriff in ordinary writs, it may be inferred that he was a I.] to the Norman Conquest of England. 21 French and English, friendly : and I do you to wit that I will that ye twain be worthy of all the law that ye were worthy of in King Eadward's day. And I will that every child be his father's heir after his father's day ; and I will not endure that any man offer any wrong to you. God keep you.' x The original bishoprics were conterminous with the Ecclesiastical limits of the various kingdoms at the time of the conver- sion to Christianity ; but under Archbishop Theodore the dioceses were subdivided on the lines of the still earlier tribal divisions. As churches were gradually erected throughout the country, the township, or, in thinly populated districts, a cluster of small townships, naturally became in its ecclesiastical aspect the parish of a single priest. Later on the hundred became the deanery, the shire the archdeaconry, while the whole consolidated kingdom formed the province of the Metropolitan. 2 Turning from the divisions of the land to those of the Ranks of the people, we find at the bottom of the social scale the mere peop e ' slaves (theowas, esnas), of whom, under the name of servi, slaves. 25,000 are numbered in Domesday Book, or nearly one- eleventh of the registered population. These were of two kinds — (1) hereditary, consisting partly of the descendants of the conquered Britons, partly of persons of the common German stock either descended from the slaves of the first colonists or from freemen who had lost their liberty ; (2) penal slaves (wite-theowas), freemen who had been reduced to slavery on account of crime, or through failure to pay a wergild, or by voluntary sale, — the father having power to sell his child of seven, and a child of thirteen having power to sell himself. As among the Germans of Tacitus we find the distinc- Fr «=men: Eorls • royal officer who stood to the merchants of the city in the relation in which the bishop stood to the clergy ; . and if he were also the head of the guild, his office illustrates very well the combination of voluntary organization with administrative machinery which marks the English municipal system from its earliest days. ' — Stubbs, Const. Hist. i. 404. 1 Select Charters, 79. 2 Stubbs, Const. Hist. i. 224-227. 22 From the Teutonic Conquest of Britain [Ch. and Ceorls. The Eorl. Nobility by birth gives way to nobility by service. The comitatus. Gesith. Intimate tion between the noble and common freeman, so among the English the freemen were broadly divided into eorls and ceorls, the modern meaning of which may be ren- dered by gentle and simple, or esquire and yeoman. The rank of the eorl rested upon noble birth, and thus formed a perpetual barrier between him and the ceorl. But in England, as in other Germanic countries, a new kind of nobility speedily grew up — nobility by military service, which in the end superseded the nobility by birth. This arose out of the development of the comitatus, described by Tacitus, the band of personal followers of the king or other leader. These followers were the gesithas (= com- panions) ; their leader was the hlaford ( = loafgivet), in its modern form, Lord, whose title was derived from his character of giver of gifts in acknowledgment of the services received. The relation existing between the lord and his followers appears to have gradually assumed a somewhat lower type ; the gesith, or companion, be- came the thegn (= servant) ; and the service of the king, or other great lord, was eagerly sought by freemen as well for the social dignity as for the material rewards which it ensured. We read of the king's dish-thegn [disc-thegn), bower-thegn (bur-thegn), and horse-thegn or stallere, 1 as personages of high rank and great influence ; a feature in our early institutions which has survived to the present day in such offices as those of Lord Chamber- lain (bower-thegn) and Master of the Horse. Service to the king, or some great lord, gradually became the only avenue to distinguished rank. The word thegn itself came to be regarded as synonymous with noble or gentle. Among this nobility by service the highest rank comprised the king's thegns, whilst in a lower class were the thegns of the ealdorman or bishop. The dignity of thegn was closely (though not insepar- 1 The Staller (comes stabuli) = the Marshal (from Old High German marah, horse, and scalh, servant.) !•] to the Norman Conquest of England. 23 ably) connected with the possession of landed property ; connexion so much so that the possession of a certain quantity of between social status and land came to be regarded as a foundation of nobility, ownership The simple freeman who acquired five hides of land ofland - entered into the ranks of the thegnhood. For the position of ealdorman the possession of at least forty hides was necessary. This intimate connexion between social status and the ownership of large landed estates, which has continued with but slight modification down to our own times, may be traced even in the original institutions of our Teutonic ancestors : ' Agri .... quos inter se secundum dignationem partiuntur.' 1 The development of the comitatus, or thegnhood, had Effects of very important effects. In the original Teutonic com- growth of the munity, the monarchic and aristocratic elements were sub- e S nno ° • ordinate to the democratic element. The growth of the thegnhood, working in close alliance with the kingly power, which from motives of self-interest it was bound to support as the source of its own dignity, reversed this original relation. Thus the aristocratic and monarchic elements obtained a decided pre-eminence. Purely volun- tary in its origin, service rapidly grew to be universally compulsory. It soon came to be regarded as a principle that every freeman, not being a hlaford, must be attached to some superior, to whom he was bound by fealty, and who, in return, was his legal protector and the guarantee for his good behaviour. The freeman had indeed the right of choosing the lord to whom he should, in tech- nical language, commend himself; but if he failed to do so, his kindred were bound to present him to the county court and name a lord for him. The lordless man was treated as a kind of outlaw, and might be seized like a robber by any one who met him. Having once com- mended himself to some lord, the freeman was prohibited from exchanging into the service of another lord in 1 TaciC Germ. c. xxvi. 24 From the Teutonic Conquest of Britain [Ch. another shire without the consent of the ealdorman of the shire which he was desirous of quitting. ' A new order of things,' says Kemble, 1 ' was thus consummated, in which the honours and security of service became more anxiously desired than a needy and safe freedom ; and the alods being finally surrendered, to be taken back as beneficia under mediate lords, the foundations of the royal feudal system were securely laid on every side.' The Ceorls. In one respect the absorption of eorldom into thegn- hood had a liberalizing effect. The ceorl, who could never become an eorl, might become a thegn, and so attain a rank practically equivalent to that of eorl. Thus the caste distinction of birth was broken through. The ceorl who acquired five hides of land (about 600 acres), with a church and mansion of his own, acquired also, as we have seen, the right to thegnhood. King ^Ethelstan extended the privilege to the merchant who in his own vessel had made three voyages to foreign parts. This last was a remarkable exception, in favour of commerce, to the general polity of this period, in which the posses- sion of land was almost essential to dignity and perfect freedom. On the whole, however, the ceorls as a class were probably depressed by the growth of the thegnhood. 3 As there were degrees among the thegns, so among the ceorls there were various grades, according to the diffe- rent relations in which they stood towards the hlafords, under whom they had placed themselves. Some had 1 Kemble, Saxons in England, i. 183. ' Freeman, Norman Conquest, i. 95. The contents of Domesday Book ' leave little doubt that the condition of the ceorls had greatly changed for the worse in the later times as we approach the Norman Conquest. Some classes among them seem to have been fast approaching to the condition of villeinage, or even to that of serfdom. The change is not peculiar to England ; but it is the peculiar glory of England that the bondage of the mass of its people began later, and certainly ended sooner, than in any other western country where such bondage existed. The German peasantry gradually sank into a lower state of serfdom than ours, and they remained in it much longer. The free peasantry of Russia did not sink into serfdom till villeinage was nearly forgotten in England ; but their deliverance from the yoke has been reserved to our own times.' Id. p. 97. i-] to the Norman Conquest of England. 25 land, which again varied greatly in quantity; some were landless. The landless ceorl indeed was practically little better off than the slave, except that he might commend himself to any lord he pleased ; but still all ceorls were freemen and capable of becoming gentlemen. They were ' law-worthy,' and the wer of the lowest ceorl was payable to his kindred, not to the lord, to whom the composition for the murder of a slave would have belonged. In the Domesday Survey the name of ceorl does not occur; but the class is mentioned under the names oiliberi homines, socmanni, villani, bordarii, cotarii, and cotseti, indicating doubtless some peculiarity of service or tenure. They are always distinguished from the servi or serfs of the demesne. The socmen were probably ceorls who had acquired less than five hides of freehold land. They may be regarded as ' the root of a noble plant, the free socage tenants, or English yeomanry, whose independence has stamped with peculiar features both our constitution and our national character.' 1 Above the thegns in dignity were the ealdormen. In Ealdormen. the primitive patriarchal constitution the chief authority in each tribe seems to have been naturally exercised, in times of peace, by the eldest member. Hence the chief of the tribe was emphatically called the ealdorman. When the chiefs of the Teutonic settlers assumed the regal style, the title of ealdorman gradually became restricted in its signification. From the time of Ecgberht it denoted a magistrate or viceroy appointed by the king and his witan, more especially the governor of a shire or large district. Under the Danish kings in the nth century, the title of ealdorman was generally supplanted by that of eorl or earl, as the official title of the governor of a shire or province. 2 1 Hallam, Midd. Ages, ii. 277. 2 The title of eorl occurs early in the laws of the Kentish kings (Laws o f j/Ethelbert, xiii. xiv.), and was probably of Jutish origin, but its use as a substitute for ealdorman was borrowed from the Danish " jarl." 26 From the Teutonic Conquest of Britain [Ch. By this time the word 'eorl,' in its original signi- fication of gentle birth, had, as we have seen, itself been supplanted by thegn. From about the period of the Norman Conquest the title of ealdorman underwent a further restriction, and has survived to our days only as the designation of city and borough magistrates. The Clergy. As the result alike of their almost entire monopoly of learning and of the veneration, not unmixed with super- stition, which the sacerdotal character inspired in the laity, the clergy, as a class, held a very high political and social status. 1 The poorest priest ranked as a mass- thegn ; the bishop was on a par with the ealdorman and presided with him in the shire-moot, and the archbishop was never valued, in the eye of the law, at less than an aetheling, or member of the king's family. Whilst all laymen, even of the highest rank, were bound to find a number of compurgators in addition to their own oath, in order to clear themselves from a charge, the simple oath of a priest was accepted as sufficient. The archbishop, like the king, merely gave his word, without an oath. In every great council the prelates appear to have taken a prominent part, church and state working together in the closest alliance ; while for purely church matters, the clergy, from an early period, had their own synods. The King. At the head of the nation was its elected chief and representative, the Cyning, or King. 2 At the period of 1 Lappenberg (England under the Anglo-Saxons, by Thorpe, ii. p. 322) suggests, as a further explanation of the high position of the Christian priest- hood, the account given by Tacitus of the vast influence in secular affairs possessed by the pagan German priesthood, in whom exclusively resided the power of life and death. ' Such a primitive influence tended, no doubt, greatly to facilitate the domination of the Roman papal church ; and a part of their jurisdiction, the ordeals or so-called judgments of God, may have had their origin in the legal usages of the heathen priests.' 2 The meaning of the word cyning, or king, has been explained with much probability as ' child of the race,' from ns - - and sales. In some respects they are analogous to the public notaries of the present day. They are first men- tioned in a law of King ^Ethelstan (a.d. 924-940), which enacted that there should 'be named in every reeve's " manung " (district) as many men as are known to be unlying, that they may be for witness in every suit.' 1 But the most explicit information about these legal witnesses is contained in the laws of Eadgar (959-975): ' This, then, is what I will : that every man be under " borh " (surety) within the " burh " (town) and without ; and let witness be appointed to every " burh " and to every hundred. To every " burh " let there be chosen xxxiii as witness. To small " burhs " and in every hundred xii, unless ye desire more. And let every man, with their witness, buy and sell every of the chattels that he may buy or sell, either in a " burh " or in a wapontake ; and let every of them, when he is first chosen as witness, give the oath that he never, neither for money, nor for love, nor for fear, will deny any of those things of which he was witness, nor declare any other thing in witness save that alone which he saw or heard ; and of such sworn 1 Cone. Exon. cap. I. 4° From the Teutonic Conquest of Britain [Ch. men let there be at every bargain two or three as witness.' 1 The sworn testimony of these legally ap- pointed witnesses was decisive of any dispute which might subsequently arise. 2 Punishments. The principle that every injury either to person or property might be compensated by a money payment was common to all the northern nations. It was intro- duced into Gaul by the conquering Franks, and into Britain by the English invaders. Every man's life had a fixed money value, called the wergild. In the case of a freeman, this compensation for murder was payable to his relatives ; in that of a slave, to his master. The amount of the wergild varied, according to a graduated scale, with the rank of the person slain. For a ceorl it was fixed at 200 shillings ; for a lesser thegn, 600 shillings ; for a king's thegn, 1200 shillings. 3 The wer „ of an ealdorman was double that of a king's thegn ; that of an aetheling three times, that of a king usually six times, as much. For bodily injuries a bdl was payable, being highest in amount where any disfigurement ensued. 4 In every case the king was entitled to a wife, or fine, for the breach of his peace. In the course of time capital punishments were introduced for offences against the state, or the king as its representative. ^Elfred declared that treason against a lord he dared not pardon ; and fighting in the king's hall, coining, and several other state offences were made ' death-worthy.' At a later period the severity of the laws increased, especially as to theft, which was sometimes capitally punished. But 1 Eadgar, Secular Ordnance, Sup. cap. 3, 4, 5, 6. 2 For a sketch of the ancient English judicial system, which, while fuller than that in the text, is yet concise, see Forsyth, Trial by Jury, 54 — 92. 8 From the amount of his 'wer' a. thegn was sometimes called a 'twelf-hynde man' (hynde, hund, here = a hundred), a lesser thegn was a 'six-hynde man,' and a ceorl a 'twy-hynde man.' * The bit for the smallest disfigurement of the face was three shillings, the same as for breaking a rib. The breaking of a thigh was valued at only twelve shillings, the loss of a man's beard at twenty shillings, and of a front tooth at six shillings. i.] to the Norman Conquest of England. 4 1 neither severity nor lenity seems to have availed to re- strain the general turbulence of the people. The laws are filled with complaints of the open violations of the public peace. The relatives of a murdered man freely maintained the right to vengeance, and ' open morth,' as the private feud was termed, frequently went on for a long period between the two families. The law of money compensation must be regarded therefore as showing rather what society was intended to be, than what in very many instances it actually was. For certain offences, the punishment of exile was inflicted ; and the man who fled from trial became an outlaw, whom any one might slay as he would a wild beast. The laws of the English, the most ancient of modern Ancient English laws, extend in an unbroken series from the laws of (a. d. 600-1066). .iEthelberht, the first Christian king of Kent (A.D. 600), down to the present time. The earliest written collec- tions are simply digests of local unwritten customs which had been handed down by oral tradition, and which were now put into writing to meet the requirements of a more developed and centralized state organization. Many of these early laws consist of amendments of older unwritten customs, and from our lack of knowledge of the customs intended to be amended, are necessarily somewhat obscure. Even when the laws are clear, the great bulk of them ' concern chiefly such questions as the practice of compurgation, ordeal, wergild, sanctity of holy places, persons, or things ; the immunity of estates belonging to churches, and the tables of penalties for crimes, in their several aspects as offences against the law, the family, and the individual.' 1 But scattered through the collec- tion there occur from time to time many enactments of the highest interest and importance as elucidations of the early history of the constitution. 2 Some of these laws — e.g., those of Alfred (A.D. 890), Early attempts . at Codification. 1 Stubbs, Sel. Chart. 60. 2 Th'ese passages are collected by Professor Stubbs in his Select Charters, pp. 60—75. 42 From the Teutonic Conquest of Britain [Ch. of ^Ethelred (978-1016), of Cnut (1016-1035), and those ascribed to Eadward the Confessor (1043-1066), exhibit traces of early attempts at codification. But the name Code cannot with propriety be applied to them. They are unsystematic and fragmentary, and such general principles as they enunciate are not legal definitions, but maxims drawn from religion or morality. Alfred as a Of all our early kings, Alfred the Great has enjoyed egisaor. ^ widest fame as a legislator. Popular legend has represented him as the personal author of nearly all our institutions, of many of which the germs existed ages before, while the existing forms cannot be discerned till ages after him. There is no doubt that, like many others of our early kings, Alfred collected and arranged the laws of his predecessors ; but his real position, as a com- piler of old rather than an originator of new legislation, is accurately set forth by himself in the preamble to his 'Dooms :' 'I then, Alfred, King, these [laws] together gathered, and had many of them written which our fore- gangers held, those that me-liked. And many of them that me not liked, I threw aside, with my wise-men's thought, and on otherwise bade to hold them. For why, I durst not risk of my own much in writ to set, for why, it to me unknown was what of them would like those that after us were. But that which I met, either in Ine's days my kinsman, or in Offa's the king of the Mercians, or in ^Ethelberht's that erst of English kin baptism underwent, those that to me rightest seemed, those have I herein gathered, and the others passed by. I then, Alfred, King of the West Saxons, to all my wise men these showed, and they then quoth that to them it seemed good all to hold.' 1 The general features of the institutions and laws of the 1 Alfred's Dooms, Thorpe's Laws and Institutes, i. 58, 59 ; apud Freeman, Norm. Conq. i. i.] to the Norman Conquest of England. 43 English people during the five hundred years preceding the Norman Conquest have now been briefly surveyed. In different districts and at different periods a great Diversities of ' local custom, diversity of local customs prevailed ; but amidst many varieties of detail the essential principles and general machinery of government possessed throughout the characteristics' which have been described. It must not, Gradual process ' of development : however, be supposed that during this lengthened period the institutions of the English were at any time sta- tionary. They were subject to a marked though gradual process of development. The general tendency of the process has been described by Professor Stubbs as 'a movement from the personal to the territorial organiza- fr ° m personal tion ; from a state of things in which personal freedom organizatk Uon. and political right were the leading ideas, to one in which personal freedom and political right had become so bound up with the relations created by the possession of land, as to be actually subservient to it : the Angel- cyn of ^Elfred becomes the Engla-lande of Cnut. The Anglo-Saxon king never ceases to be the king of the nation, but he has become its lord and patron rather than its father ; and that in a state of society in which the lord- ship is bound up with landownership : he is the lord of the national land, and needs only one step to become the lord of the people by that title. This step was, how- ever, taken by the Norman lawyers and not by the English king ; and it was only because the transition seemed to them so easy, that they left the ancient local organization unimpaired, out of which a system was to grow that would ultimately reduce the landownership to its proper dimensions and functions.', 1 But whilst, in.theory, the power of the king was rising Increase in higher and higher, it was practically limited by the E° e atnobks! simultaneous advance in the power of the great nobles who were constantly tending towards a position not far 1 Const. Hist. i. 166, 168. 44 From the Teutonic Conquest of Britain. [Ch. i. The great earldoms under Cnut and Eadward the Confessor. removed from that of the great feudatories of the Conti- nent. Under Eadward the Martyr the condition of England was not unlike that of France under Charles the Bald. The great earls, or ealdormen of provinces, were forming a separate order in the State inimical alike to the supremacy of the king and the liberty of their fellow subjects. Cnut divided the kingdom into four great earldoms or duchies ; and the same policy was continued by Eadward the Confessor, in whose reign the whole land seems to have been divided among five earls, three of them being Earl Godwine and his sons Harold and Tostig. The power and statesmanship of William the Norman prevented the threatened disintegration of the kingdom. CHAPTER II. THE NORMAN CONQUEST. On the death of Eadward the Confessor, (5th of Disputed buc- January, 1066,) the succession to the crown was disputed. crown! The heir of the house of Cerdic, Eadgar the -Etheling, grand-nephew of the late king, was not only of tender age, but, as his after-life showed, of feeble character and mediocre intellect. The political exigencies of the kingdom imperatively demanded an able and resolute man as its head. King Eadward on his death-bed had recommended as his successor his brother-in-law, Earl Earl Harold : Harold. The earl was the most able general and states- man of the time, already exercising a quasi-royal autho- rity through his own personal influence and the vast possessions of the Godwine family, and, though lacking the blood of Cerdic in his veins, was allied to the English royal house by affinity, and by blood to the Danish house which had so lately occupied the throne. 1 The Wi tan, who elected and were at this time assembled in their ordinary mid-winter C1 ' session, approving of Eadward's recommendation, elected Earl Harold King of the English, and he was forthwith anointed and crowned by Ealdred, Archbishop of York. 2 But there was another competitor for the crown in the 1 Harold's mother, Gytha, was a sister- of Ulf Jarl and first cousin once removed of King Cnut. — Thorpe's Lappenberg, Ang. Sax. pp. 280, 370. 2 Flor. Wigom. 1066. ' Quo [Eadwardo] tumulato, Subregulus Haroldus, Godwini Ducis filius, quem Rex ante decessionem regni suc- cessorem elegerat, a totius Angliae primatibus ad regale culmen electus, die eodem ab Aldredo Eboracensi Archiepiscopo in Regem est honorifice consecratus. ' 4 6 The Norman Conquest. [Ch. William, Duke of Normandy. The kingship elective. The Conquest. 14 Oct. 1066. William elected and crowned ' King of the English.' person of William, Duke of Normandy, who was cousin to Eadward the Confessor through that king's mother, Emma of Normandy, and now claimed the throne under an alleged earlier appointment of his late kinsman. If such appointment or promise had indeed been made, which seems probable, 1 it was superseded by the last expression of King Eadward's wishes. Under any cir- cumstances it could merely amount to a recommendation to the Witan. A king of the English had never possessed a constitutional right to bequeath his kingdom like a private estate. The right of electing a king resided in the Witan alone, acting on behalf of the whole nation. Their choice, it is true, had hitherto, when freely exer- cised, been restricted to the members of the royal house ; but failing an eligible descendant of Cerdic, the choice of the nation was unlimited. William, however, professed to be merely asserting his legal right. Having secured the moral and religious support of the papal benediction, which the Roman See in its anxiety to reduce the independence of the National English Church was most ready to bestow, and leading a large army of Normans and other foreigners, all inured to warfare and eager for booty, William landed in England to decide by the fate of arms between himself and the ' usurper ' Harold. At the decisive battle of Senlac the Normans were victorious, Harold, his brothers, and the flower of the English thegnhood being left dead on the field. Al- though, on the news of Harold's death, the Londoners at once chose Eadgar ^Etheling for king, disunion and the lack of effective organization prevented any successful resistance to the onward march of the invaders. William had as yet conquered .but a very small portion of the kingdom, but such was the panic of the nation, that he was elected king by the Witan and crowned at West- 1 See Freeman, Norm. Conq. ii. 296 — 304. n -] The Norman Conquest. 47 minster on Christmas Day, 1066, by the same Archbishop Ealdred who had crowned the unfortunate Harold. In conformity with his original pretensions, he assumed the title of ' King of the English,' and entered into the usual compact with the nation in the ancient coronation oath. William evidently began with the intention of reigning Theoretically a as the appointed heir of Eadward and the lawful sue- £?^ itutional cessor of the English kings. In that character he was obliged to respect the laws and customs of the kingdom. Theoretically he continued to govern as a constitutional king, though practically in defiance of everything but his own wishes. The continuity of the English constitution Continuity of was not broken by the Norman conquest. That event the constitution - ought to be regarded not as a fresh starting-point, but as ' the great turning-point ' in the history of the English nation. ' The laws, with a few changes in detail, remained the same ; the language of public documents remained the same ; the powers which were vested in King William and his Witan remained constitutionally the same.' 1 The infusion of Norman blood has been considered The Norman extensive enough to count as one of the four chief race " elements of the present English nation ; but it was still only an infusion. In the course of little more than a century it became absorbed, as the smaller Celtic and larger Danish elements had been absorbed previously, in the predominant English nationality. The fusion was doubtless facilitated by the common Teutonic descent of the two peoples. 2 The Normans were in fact Northmen, who, instead of coming direct from Scandinavia, had sojourned for a century and a half in a French home. While retaining much of the Norse character, they had acquired, during the interval, the language and civilization of the Romanized Gauls and Franks, developing in the process a brilliant nationality distinct alike from the 1 Freeman, Norm. Conq. i. 72. 3 Supra, p. 3. 48 The Norman Conquest. [Ch. nationality of their origin and of their new home. The conquerors, moreover, were by no means utter strangers to the people whom they subdued. The vicinity of so remarkable a nation as the Normans had early begun to produce an influence upon the public mind of England, and had to some extent prepared the way for their ultimate supremacy. ' Before the Conquest, English princes received their education in Normandy. English sees and English estates were bestowed on Normans. The French of Normandy was familiarly spoken in the palace of Westminster. The court of Rouen seems to have been tathe court of Eadward the Confessor what the court of Versailles long afterwards was to the court of Charles the Second.' l Effects of the The immediate changes which the Conquest intro- Conquest. duced were , undoubtedly great, but they were practical rather than formal. ; The power of the crown was vastly increased. As the government became more centralized, local self-government, the essential characteristic of our Teutonic constitution, was for a time depressed ; but only to arise again later on, when the nobles and people became united against the tyranny of the crown. The social aspect of England was enormously changed. The old dynasty had been supplanted by an alien family. The old aristocracy was superseded by a new nobility. It is true that the conquest ' did not expel or transplant the English nation or any part of it, but it gradually deprived the leading men and families of England of their lands and offices, and thrust them down into a secondary position under alien intruders. It did not at once sweep away the old laws and liberties of the land ; but it at once changed the manner and spirit of their administration, and it opened the way for endless later changes in the laws themselves. It did not abolish the English language, but it brought in a new language by 1 Macaulay, Hist. Eng. i. 10. ii.] The Norman Conquest. 49 its side, which for a while supplanted it as the language of polite intercourse.' l The most important result of the Conquest, in its Feudalism, constitutional aspect, was the assimilation of all the institutions of the country, from : the 'highest to the lowest, to the feudal type. This was a consequence , of the immense confiscations of landed estates, which, occurring not all at once but from time to time, ulti- mately placed King William in the position of supreme landowner, and established the Feudal System in England. The steps by which this great change was brought its gradual about, and the nature of the system of tenure thus established, demand some consideration. At first the Conqueror, 3 with an appearance of strict legality, appropriated merely the extensive royal do- mains—the folkland, now finally changed into terra regis — and the large forfeited estates of the Godwine family and of all those who had, or were suspected of having, taken up arms against him. Reserving to him- self as the demesne of the Crown more than 1400 large manors scattered over various counties, he divided the rest among his companions in arms. Although William affected to regard all Englishmen as more or less tainted with treason and liable to forfeiture of their estates, inasmuch as they had either fought against him or failed to range themselves on his side, yet the bulk of the landholders were at first suffered to retain their possessions. But there is reason to believe that this was The English subject to the condition of accepting a regrant from the Conqueror ; the more important personages, in return for 1 Freeman, Norm. Conq. i. 4. 2 It is perhaps scarcely necessary to remark that the term ' Conqueror ' did not in the language of the time of which we are treating imply subju- gation, but signified merely one who 'had sought and obtained his right.' In reality, however, the modern meaning of the term more accurately de- scribes William's practical position, which was, as he himself once expressed it, ' King by the edge of the sword. ' E redeem their lands. 5o The Norman Conquest. [Ch. Insurrections, followed by extensive con- fiscations. their adhesion, receiving back their estates as a free gift, the smaller owners on payment of a money considera- tion. 1 By this means William procured a peaceable acknowledgment of his title over extensive districts i'nto which his arms had not yet penetrated. During the Conqueror's first absence from England a reaction set in after the panic ; and the oppression and insolence of the Normans, Odo of Bayeux and William FitzOsbern, who had been left in charge of the kingdom as justices regent, excited the natives to rebel. One rising was no sooner suppressed than others broke out in different parts of the kingdom, and the first four years of his reign were occupied by William in acquiring the actual sovereignty of his new dominions. Each insurrection as it occurred was followed by a confisca- tion of the estates of those who in the eye of the law were rebels, however patriotic and morally justifiable may have been the motives by which they were ac- tuated. Thus, by a gradual process and with an outward show of legality, 2 nearly all the lands of the kingdom came into the hands of the king, and were by him granted out to his Norman nobles, to be held by the feudal tenure, to which they were alone accustomed in their own country. The maxim of later times, ' Tout fuit en lui et vient de lui al commencement,' s seems to have been something more than a fiction. At the time 1 The Peterborough (contemporary) chronicler speaks of all who did homage to William at or soon after his coronation, as buying their land : ' And menn guidon him gyld and gislas sealdon, and sySSan heora land bohtan' (Chron. Petrib. 1066). This statement is confirmed by an in- cidental reference in Domesday to a time when the English as a body redeemed their lands. Of some of the lands of St. Eadmundsbury we read : ' Hanc terram habet Abbas in vadimonio pro xi marcas auri, concessu Engelrici quando redimebant Anglici terras suas ' (Domesday, ii. 360, afud Freeman, Norm. Conq. iv. 25). The Inquisitio Eliensis also confirms this view : ' Hoc totum tripliciter ; scilicet tempore Regis Eaduardi, et quando Rex Willelmus dedit ; et quomodo sit mode' 3 ' Nulli Gallo datum quod Anglo cuiquam injuste fuerit ablatum. ' — Orderic. Vital. 3 Year Book, 24 Edw. III. 65, afud Spence, Equitable Jurisdiction, i. 91. ii-] The Norman Conquest. 51 of the Domesday survey there still remained some few exceptions to the general feudal tenure, but before the accession of Henryl. all tenures seem to have become uniformly feudal. 1 At the period of the Norman conquest feudalism in Continental both tenure and government was fully established in France, the country of its historic development, and in most of the continental countries of Europe. It had grown up gradually, deriving its elements partly from a Roman, partly from a Teutonic source. Indirectly and in part it may be traced to the Roman system of usufructuary ownership and to the practice, under the empire, of granting out frontier lands to the limitanei milites, to be held by military service; but its direct and principal sources were (1) the system of beneficiary grants which grew up under the Frank kings and emperors, working in combination with (2) the practice of personal commendation or vassalage, which seems to have superseded and absorbed the primitive and, in many respects, analogous German comitatus. On the Continent feudalism had become much more The machinery than a mere system of tenure. It was inseparably flj^^ ent bound up with the system of government and the legal and social relations of the people. To the possession of a fief was united the right of local judicature. Originally tenable for life, only, fiefs soon came to be hereditary. t The practice of ' sub-infeudation ' naturally followed. Sub-infeudation. The great feudatory who had received large grants of land from his sovereign, retained a certain portion for his own demesne and then parcelled out the remainder amongst his own dependents, to be held by services similar to those which he himself owed. The provincial governors, who held the largest beneficiary estates, and in many cases were also extensive alodial proprietors, found themselves strong enough to establish a number 1 Stubbs, Select Chart. Introductory Sketch, 14. 52 The Norman Conquest. [Ch. Commendation. Feudal tenure of church lands. Growth of feudalism in England. of provincial principalities — imperia in imperio ; in which, while admitting a nominal dependence on the sovereign, they claimed and exercised a practically independent military and civil jurisdiction. It was of the essence of a fief that its tenant owed fealty to his immediate lord and not to the state or the sovereign. 1 The king might . be the immediate lord ; but in this case obedience was due to him, not in his political capacity as sovereign, but in his feudal capacity as lord. Thus during the height of the feudal system in France, the tenants of the immediate vassals of the Crown never hesitated to follow the lord's standard against the king. 3 The general conversion of alodial into feudal tenure was also due, in a great degree, to the voluntary action of the smaller free proprietors, who, in an age of lawless- ness and rapine, were glad to submit their persons and estates, by way of commendation, to some powerful neighbouring lord. 3 Not only the possessions of laymen, but those of the Church, became subject to the all- pervading feudal influence. ' The prelates and abbots were completely feudal nobles. They swore fealty for their lands to the king or other superior, received the homage of their vassals, enjoyed the same immunities, exercised the same jurisdiction, maintained the same authority, as the lay lords among whom they dwelt.' 4 In England an indigenous growth of feudalism had been going on, but its development had been slower and more purely Teutonic than on the Continent, where the legal principles and practices of imperial Rome 1 Hallam, Midd. Ages, i. 186. 2 ' Even so late as the age of St. Louis [i 226-1 270] it is laid down in his Establishments, that if justice is refused by the king to one of his vassals, he might summon iris own tenants, under penalty of forfeiting their fiefs, to assist him in obtaining redress by arms.' — Id. i. 168, quoting Etablisse- mens de St. Louis, c. 49. 3 See Guizot, Essais sur l'Histoire de France, 166, and Hallam, Midd. Ages, i. 317-320. The practice of commendation had originally no connection with land, but created a merely personal tie of mutual protection and fidelity, similar to the Roman clientela. 4 Hallam, Midd. Ages, i. 195. ii.] The Norman Conquest. 53 exercised an accelerating influence. As a system, feudalism cannot be said to have been established in England prior to the Conquest, but all its elements had long existed, both separately and sometimes in combination. The two chief elements of feudalism are : (i.) The personal relation of lord and vassal founded on contract, and binding the parties to mutual fidelity, the one owing protection, the other service. (2.) The holding of the usufruct {dominium utile) of land on the condition of rendering military service, the ultimate property {dominium directum) remaining in the lord, the grantor. Combined, these two elements constitute feudalism ; apart, neither is sufficient. In the personal relation which existed between the Teutonic princeps and his comites, between the English Hlaford and Thegn, we have the first element of feudalism in its integrity. We have seen how universal the practice of commendation became, insomuch that the lordless man was soon looked upon as an anomaly in the state and treated as an out- law. 1 One of the most natural modes in which the Hlaford would reward his followers would be by a grant of land, subject to the condition of service, military ser- vice more especially. By the beginning of the nth century the king seems to have assumed the right of disposing of the folkland without the consent of the Witan, and of granting it out to his followers as a reward for past, a retainer for future, services. Moreover, by means of sub-infeudation and commendation, 2 a very large part of the land of England had come to he held by a feudal 1 Supra, p. 23. 2 The practice of commending a man's person and lands, in order to obtain protection against violent aggression, appears to have been common in England as well as on the Continent. Thus in Domesday we read (p. 32, b.), under Terrae Ecclesiae de Certesyg (Surrey), 'Tempore Regis Eadwardi tenuerunt unus homo et ii feminae et quo voluerunt se vertere potuerunt, sed pro defensione se cum terra abbatiae summiserunt.' The practice continued even after the Conquest : another entry in Domesday (58) reads : ' Isdem Episcopus tenet de Rege I hidam et dimidiam, et Tori 54 The Norman Conquest. [Ch. tenure, in contradistinction from alodial ownership, which remained the privilege of the few. 1 But up to this stage feudality had affected only the tenure of land. The policy initiated by Cnut and continued under Eadward the Confessor, of dividing the kingdom among a few great earls, who in some cases succeeded in transmitting their jurisdictions to their children, carried the feudal principle a step further ; and but for the Norman conquest would probably have resulted in the development of a feudalism almost identical with that which existed on the Continent. Difference Both in the kingdom of France and in his own duchy between English of Normandy, William had been familiar with the evils fefdaUsm! nental of feudalism as there established. His recollection of contests with his own barons was too keen and too recent not to induce him to prevent, if possible, a recurrence of the struggle in his newly-acquired king- dom. From the very first he took measures to check the natural development of feudalism in England ; and although by gradually substituting the Frankish system of land tenure for the complicated system which had grown up in England, he may be said to have esta- blished the feudal system, it was as a system of de eo. Pater Tori tenuit T. R. E. et potuit ire quo voluit, sed pro sua defensione se commisit Hermanno Episcopo, et Tori Osmundo Episcopo similiter.' 1 'The dependent,' remarks Professor Stubbs, "might be connected with the king (i) by service, (2) by comitatus, (3) by commendation, (4) by reception of land as a benefice. Frank feudalism grew out of the two latter, the English nobility of service from the two first. It is not contended that either the principles at work in English society or the results at which they arrived before the Norman Conquest were very different from the corresponding influences and results on the Continent ; but they had a distinct history, which was different in every stage, especially in the point that, as in so many other things, the personal relation in England takes the place of the territorial, as it was in France ; and the feudalism that followed the Conquest was Frank and territorial, that which preceded it grew from personal and legal, not from territorial influences. On the growth of Frank feudalism, see Waitz, Deutsche Verfassungs-Geschichte, ii. 262; iv. 210. ... In the Frank empire the beneficiary system is uncon- nected with the comitatus, in the English they are in the closest connexion.' —Const. Hist. i. 153, u. IL ] The Norman Conquest. 55 tenure only, not of government organization. He was ^^H 1 ™^ determined to reign as the king of the nation, not merely feudal principles as feudal lord. While, therefore, availing himself of all of government. the advantages of the feudal system, he broke into its ' most essential attribute, the exclusive dependence of a vassal upon his lord,' 1 by requiring, in accordance with the old English practice, 2 that all landowners, mesne tenants as well as tenants-in-chief, should take the oath of fealty to the king. This was formally decreed, 3 at the celebrated Gem6t held on Salisbury Plain, on the Gem6t of ist of August, 1086, at which the Witan and all the Salisbury, landowners of substance in England, whose vassals A ' D- I0 ' soever they were, attended, to the number, it is re- ported, of 60,000. The statute, as soon as passed, was carried into immediate effect, and all the landowners (Jandsittende men) became 'this man's men,' and 'swore him oaths of allegiance that they would against all other men be faithful to him.' 4. This national act of homage and allegiance to the king, which, far from marking the formal acceptance of survey. ^ feudalism, as some have contended, was, in reality, anti- feudal, followed immediately upon the compilation of the Domesday Survey, which had been decreed in the 1 Hallam, Midd. Ages, ii. 315. 2 The oath is mentioned in the laws of King Eadmund (circ. A.D. 943) : ' De Sacramento Fidelitatis Regi Eadmundo faciendo. In primis ut omnes jurent in nomine Domini, pro quo sanctum illud sanctum est, fidelitatem Eadmundo regi, sicut homo debet esse fidelis domino suo, sine omni con- troversia et seditione, in manifesto in occulto, in amando quod amabit, nolendo quod nolet ; et antequam juramentum hoc dabitur, ut nemo concelet hoc in fratre rel proximo suo plus quam in extraneo.' — Select ■ Chart. 66. 3 ' Statuimus etiam ut omnis liber homo foedere et Sacramento affirmet, quod infra et extra Angliam Willelmo regi fideles esse volunt, terras et honorem illius omni fidelitate cum eo servare et ante eum contra inimicos defendere.'— Stat. Will. Conq. Id. p. 80. 4 Chron. Sax. A.D. 1086. ' Syththan he ferde abutan swa thset he com to Lammsessan to Searebyrig ; and thaer him comon to his Witan, and ealle tha landsittende men the antes wseron ofer eall Engleland, wseron thses mannes men the hi wseron, and ealle hi bugon to him, and wseron his menn, and him hold athas sworon thset hi woldon ongean ealle othre men him holde beon. ' 56 The Norman Conquest. [Ch. Checks to the power of the feudatories. memorable mid-winter Gemot of Gloucester, 1085-1086. The recently attempted invasion from Denmark seems to have impressed the king with the desirability of an accurate knowledge of his resources, military and fiscal, both of which were based upon the land. The survey was completed within the remarkably short space of a single year. In each shire the commissioners made their inquiries by the oaths of the sheriffs, the barons and their Norman retainers, the parish priests, the reeves and six ceorls of each township. The result of their labours was a minute description of all the lands of the kingdom, with the exception of the four northern counties of Northumberland, Cumberland, Westmoreland, and Dur- ham, and part of what is now Lancashire. It enumerates the tenants-in-chief, under tenants, freeholders, villeins, and serfs, describes the nature and obligations of the tenures, the value in the time of King Eadward, at the Conquest, and at the date of the survey, and, which gives a key to the whole inquiry, informs the king whether any advance in the valuation could be made. 1 In addition to his exaction of homage from the sub- tenants, William took other effective measures to keep the great feudatories in check. The lordships which he bestowed upon his principal barons were scattered over the kingdom, so that in no one district - should the terri- tories of any one man be great enough to tempt him to rebellion. 2 An unforeseen but very important result of 1 The returns were transmitted to Winchester, digested, and recorded in two volumes which have descended to posterity under the name of Domes- day Book. The name itself is probably derived from Domus Dei, the appellation of a chapel or vault of the Cathedral at Winchester in which the survey was at first deposited. From this authentic record our most certain information is obtained as to the old English common law, as it appears in the local customs referred to ; the character of the municipal government and ' consuetudines ' of the towns ; the financial system of the , shires whilst still under the administration of the earls ; and the general political and social condition of England towards the end of William's reign. 2 From Domesday we learn that the vast possessions of the king's brothers, Odo, Bishop of Bayeux, and Robert, Earl of Mortain, were scattered over seventeen and nineteen counties respectively. Eudes .the ii.] The Norman Conquest. 57 this arrangement was the necessity under which the nobles found themselves of combining with one another, and ultimately of seeking the help of the people, in order to resist the royal power. ' Thus the Old-English parliamentary instincts which the Conquest for a while checked were again awakened and strengthened.' 1 William abolished the great earldoms which had Great earldoms threatened the integrity of the kingdom under Eadward, and, reverting to the earlier English practice, restricted the jurisdiction of the earl to a single shire. 3 The govern- ment of the shire — judicial, military, and financial — was, moreover, practically executed by the sheriff, who was directly responsible to the king. An apparent exception to the general policy pursued by the Conqueror occurs in the creation of the three palatine counties of Chester, Counties Durham, and Kent. The extraordinary powers thus conferred were, however, requisite for the defence of the kingdom against attacks from Wales, Scotland, and the Continent' respectively, and two of the persons entrusted with them were ecclesiastics, who could not become the founders of families. A further check to the power of the baronage resulted from the maintenance in full vigour of the popular cfourts of the shire and the hundred, by which the private manorial jurisdictions of the nobles were restrained, as far as possible, within narrow limits. The political and social influence of the system of Feudal tenures, tenure established in England has been so vast and so enduring, that it is desirable to take a glance at its outline, in order to a right understanding of the develop- ment of our constitution and laws. The feudal tenures were, indeed, abolished by Act of Parliament in the steward (dapifer) held fiefs in twelve counties. Hugh (Lupus) of Avranches held lands in twenty-one counties, exclusive of those in his palatine county of Chester. '. Freeman, Norm. Conq. iv. 71. 2 '^This one revolution of the Conqueror did more than any other one cause to make England an united kingdom and keep it from falling asunder like France and Germany.' — Ibid. 58 The Norman Conquest. [Ch, Tenure by knight-service. Investiture. Homage. reign of Charles II., but the spirit of the system still lives on. It stands revealed in the theory of our law that 'all the lands and tenements in England in the hands of subjects are holden mediately or immediately of the king ; ' 1 in the law of primogeniture, as applied to the inheritance of real estate ; and in the custom of family settlements, by which the old law of entail is practically continued. Prior to the Conquest all lands had been subject to the trinoda necessitas. This obligation still continued. But after the feudal system of tenure had been fully established, all lands were held subject to certain additional obligations, which were due either to the king (not as sovereign, but as feudal lord) from the original grantees, called tenants-in-chief {tenentes in capite), or to the tenants-in-chief themselves from their under tenants. 3 Of these obligations the most honourable was that of knight-service. This was the tenure by which the king granted out fiefs to his followers, and by which they in turn provided for their own military retainers. The lands of the bishops and dignified ecclesiastics, and of most of the religious foundations, were also held by this tenure. A few exceptions only were made in favour of lands which had been immemorially held in frankalmoign, or free-alms. On th'e grant of a fief the tenant was publicly invested with the land by a symbolical or actual delivery, termed livery of seisin. He then did homage, so called from the words used in the ceremony : ' Je deveigne votre homme? Humbly kneeling before his lord, with sword ungirt and head uncovered, he placed his hands between those of 1 Coke upon Littleton, cap. I, sec. I. 2 The tenants-in-chief, including the ecclesiastical corporations, enume- rated in Domesday, amounted to about fifteen ■ hundred. The under- tenants were about eight thousand in number, and largely consisted of the ousted English owners, who had been reduced from the degree of thegn to the condition of simple freeholders or franklins, holding under a Norman lord. ii.] The Norman Conquest. 59 his lord, and pronounced the words : ' I become your man from this day forward, of life and limb, and of earthly worship ; and unto you shall be true and faith- ful, and bear to you faith for the tenements I claim to hold of you.' 1 The lord then kissed his vassal on the Fealty. cheek and received the oath of fealty. In the case of a sub-tenant (vavassor), his oath of fealty was guarded by a reservation of the faith due to his sovereign lord the king. For every portion of land of the annual value of £20, which constituted a knight's fee, the tenant was bound, whenever required, to render the services of a knight properly armed and accoutred, to serve in the field forty days at his own expense. In addition to service in war-time, the tenants-in-chief were also bound to attend the king's court at the three great festivals of the year; and on the same principle every mesne lord having two or more freehold tenants had a right to compel their attendance (termed 'suit of court,' from suivre, to follow) at the court-baron of the manor, as the lordship of pre-Norman times was now termed. 3 Tenure by knight-service was also subject to several incidents of other incidents of a burdensome character, the unfair and * ei l u ";by . knight-semce. oppressive exaction of which by the Norman and earlier Angevin kings supplied one of the chief incentives to the barons who wrested the great charter from King John. These incidental burdens were : 1 Littleton, s. 85. 2 Gilbert , Tenures, 431 et seq. 'The name "manor" is of Norman origin, but the estate to which it was given existed in its essential character long before the Conquest ; it received a new name as the shire also did, but neither the one nor the other was created by this change. The local jurisdictions of the thegns who had grants of sac and soc, or who exercised judicial functions amongst their free neighbours, were identical with the manorial jurisdictions of the new owners. It may be conjectured with great probability that in many cases the weaker freemen, who had either willingly or under constraint attended the courts of their great neighbours, were now, under the general infusion of feudal principle, regarded as holding their lands of them as lords ; it is not less probable that in a great number of grants the right to suit and service from small landowners passed from the king to the receiver of the fief as a matter of course ; but it is certain that even before the Conquest such a proceeding was not uncommon.' — Stubbs, Const. Hist. i. 273. 6o The Norman Conquest. [c». Ai ■ 65 The Norman Conquest. [Ch. earls, thegns and knights attended. 1 There is some evidence that it even retained for a time its old consti- tutional name of Witan. 3 But as the feudal principle gradually acquired predominating influence in every department of the state, the national council almost insensibly changed from the assembly of the Wise Men into the Curia Regis, the court of the king's feudal vassals. William's laws. William made but few changes in the national laws. It was their administration by foreign officials which con- stituted the grievance most heavily felt. In the fourth year of his reign, when the work of conquest had been completed, he ordained that peace and security should be observed between his English and Norman subjects, H renews the anc * renewe d the law of Eadward the Confessor, with law of Eadward certain additions made by himself, ' ad utilitatem populi the Confessor. Anglorum/ s In i^g manner Cnut, fifty-two years before, had reconciled the English and Danes at a gem6t at Oxford, and renewed the law of Eadgar the Peaceful.* This renewal by William is the first mention of the famous laws of King Eadward which Normans as well as English soon learnt to demand in every reign until Magna Charta supplied them with a more substantial founda- tion for their liberties. By the ' laws of Eadward ' they probably meant not the laws which he had promulgated but which he had observed. 6 The phrase imported a demand for a mild and good government as opposed to 1 Chfon. Sax. A.D. 1087. 'Thriwa he bser his cynehelm seke geare, swa oft swa he wses on Englelande : on Eastern he hine basr on Win- ceastre ; on Pentecosten on Westmynstre ; on Midewintre on Gleawe- ceastre ; and thsenne wseron mid him ealle tha rice men ofer eall Engla- land, arcebiscopas and leodbiscopas, abbodas and eorlas, thegnas and cnihtas.' " Chron. Petrib. 1085-1086 ; supra, p. 55, n. 4. s ' Hoc quoque praecipio et volo, ut omnes habeant et teneant legem Eadwardi regis in terris, et in omnibus rebus, adauctis iis quae constitui ad utilitatem populi Anglorum.' — Statutes of Will. Conq. ; Sel. Chart. 81. 4 ' Angli et Dani amid Oxenfordam de lege Regis Eadgari tenenda Concordes sunt effecti. — Flor. Wigorn. A.D. 1018 ; Freeman, Norm. Conq. i. 462. 5 'Non quas tulit sed quas observaverit.' — Will. Malmes., apud Hallam, Mid. Ages, ii. 325. ii.] The Norman Conquest. 67 harsh and unjust innovations. But before confirming the English laws, William took measures to ascertain what they were. He directed that in each county twelve representative men, — ' Anglos nobiles et sapientes et sua lege eruditos,' — should be elected to report to him on oath the laws and customs of the English. 1 Normans and English were, in theory, equal before the law; but the distinction of personal law was, for some purposes, allowed. The Normans were accustomed to the wager of battle, 2 the English to the ordeal and Wager of compurgation. King William allowed the men of each l e " race to be tried by the customs of his own country. But ' Francigenae ' (who would be mostly Normans) settled in England previously to the Conquest were to be treated as Englishmen. 3 The English frequently revenged themselves on their local tyrants by assassination. To check this, William Englishry. ordained that the whole hundred, within whose limits a Norman should be secretly slain, should be liable to a heavy amercement. 4 In connexion with this enactment there grew up the famous law of ' Englishry,' by which every murdered man was presumed to be a Norman, unless proofs of 'Englishry' were made by the four nearest relatives of the deceased. 5 'Presentments of Englishry,' as they were technically termed, are recorded in the reign of Richard I., 6 but not later. Even so early as the reign of Henry II. we are told that the two races 1 Hoveden, Chronica, ii. 218, A.D. 1070 ; Select Chart. 78. s ' The trial by battle, which on clearer evidence seems to have been brought in by the. Normans, is a relic of old Teutonic jurisprudence, the absence of which from the Anglo-Saxon courts is far more curious than its introduction from abroad.' — Stubbs, Const. Hist. i. 276. 3 Statutes of Will. Conq. ; Select Chart. 80, 81. 4 Statutes of Will. Conq. ; Dialogus de Scaccario, lib. I, c. 10 ; Select Chart. 80, 193. 5 Bracton, 1. 3, tr. 2, t. 15, s. 7. The crime of murder (murdrum) was anciently restricted to secret killing. ' Murdrum proprie dicitur mors alicujus occulta, cujus interfector ignoratur. Murdrum enim idem est quod absconditum vel occultum.' — Dial, de Scac. lib. I, u 10. 6 Abbrev. Plac. pp. 13, 17, 18, 19. 68 The Norman Conquest. [Ch. Public peace maintained. The Forest Laws. ( with the exception of the villeins) had become so blended through intermarriages that the distinction between Norman and Englishman had almost entirely disap- peared. 1 The public peace which William established and maintained was the greatest benefit of his reign. 3 ' He permitted no rapine but his own.' Meting out stern justice to Norman and Englishman alike, he yet abolished the punishment of death, and substituted what was pos- sibly regarded as the milder punishment of mutilation. 3 He also, like his predecessors ^Ethelred and Cnut, prohibited the infamous practice of selling men into foreign slavery. 4 The love of field sports amounted in the Conqueror to an ungovernable passion. ' He loved the tall deer as if he were their father.' The laying waste of 17,000 acres for the formation of the New Forest, in Hampshire, made a deep impression on the popular mind. The forest laws which William introduced, though not so cruel as they subsequently became under Henry I., were yet marked by extraordinary harshness. The penalty for killing a hart or hind was loss of sight. The killing of even wild boars and hares was forbidden. The beginning of forest laws is traceable to the legisla- tion of Cnut ; but by him the right of every man to hunt on his own ground was expressly recognized, 5 Up to 1 Richard, Bishop of London and Treasurer of the Exchequer under Henry II., tells us in his Dialogus de Scaccario, lib. i. a. : ' Sed jam cohab'itantibus Anglicis et Normannis, et alterutrum uxores ducentibus vel nubentibus, sic permixtae sunt nationes ut vix discemi possit hodie, de liberis loquor, quis Anglicus quis Normannus sit genere ; exceptis duntaxat ascriptitiis qui villani dicuntur, quibus non est liberum obstantibus dominis suisa sui status conditione discedere.' — Select Chart. 193. 2 ' No man durst slay other man had he never so mickle evil done to the other.' — Chron. Petrib. 1087; apud Freeman, Norm. Conq. iv. 619. 3 ' Interdico etiam ne quis occidatur aut suspendatur pro aliqua culpa, sed eruantur oculi, et testiculi abscidantur.' — Statutes of Will. Conq. ; Select Chart. 81. 4 ' Ego prohibeo ut nullus vendat hominem extra patriam super plenam forisfacluram meam.' — Ibid. 6 Cnul, Secular Dooms, c. 81. ' And I will that every man be entitled II The Norman Conquest. 69 the period of the Conquest, hunting was still regarded not merely as a pastime but as a means of extermina- ting noxious animals and of procuring food. Under William it became a mere sport for pleasure, and the exclusive privilege of the king and those whom he allowed to share it. 1 Though mitigated under Henry III. and in succeeding reigns, yet ' from this root,' says Blackstone, ' afterwards sprung a bastard slip known by the name of the Game Law,' by which, down to the reign of William IV., no one was permitted to take or sell game, even on his own land, unless possessed of a real property qualification of at least £100 a year. 3 Previous to the Conquest the English Church had The Church. enjoyed what has been termed ' an insular and barbaric independence.' 3 The Conquest brought it into much closer connexion with Rome. Foreign ecclesiastics were substituted in high places for the native clergy. But while the Church lost some of its national independence, it gained in power. 'As secular government gained in force through the strong centralization system of the Conqueror, so the power of the Church increased through its more complete subordination to the papacy. The Conqueror, however, had no intention of admitting the interference of the Pope in the English Church or State to a greater extent than he himself might judge to be expedient. He was, indeed, under great obligations to the papacy, and was at all times regarded as a favoured son of the Church. But he resolutely refused to admit a.d. dr. 1676. the haughty pretensions of Hildebrand, who in the prose- cution of his scheme of ecclesiastical feudalism, in which all kings of the earth were to hold their kingdoms as fiefs of the Holy See, requested William to do fealty for the to his hunting in wood and in field, on his own possession. And let everyone forego my hunting : take notice where I will have it untrespassed on under penalty of the full " wite." ' — Select Chart. 73. 1 See Freeman, Norm. Conq. iv. 3 Stephen, Commentaries, iv. 577. 3 Freeman, Norm. Conq. 7o The Norman Conquest. [Ch. Separation of spiritual from temporal courts. William's canons of the Royal Supremacy crown of England. 1 Under the pre-Norman kings the Church and the State had been practically identical, alike subject to the supreme power of the Witan, by whom kings, earls, and bishops were elected and deposed, and laws spiritual and temporal enacted. The bishop and the ealdorman sat side by side at the gemdt of the shire or hundred, deciding all causes, ecclesiastical as well as civil. One of the most important acts of Wil- liam's reign was the separation of the ecclesiastical from the civil jurisdiction of the courts of law. He directed that from henceforth no bishop or archdeacon should hold pleas of ecclesiastical matters in the shire or hun- dred court ; but that all such pleas should be determined according to the canon and ecclesiastical laws before the bishop, at the place which he should appoint for the pur- pose. All sheriffs and other lay persons were prohibited from interfering in spiritual causes. 2 But in making this change William took care to preserve the ancient supremacy of the State, by laying down his three famous canons of the royal supremacy, viz. : — i. That no pope should be acknowledged, or papal letters received, in England, without the king's consent. 2. That the decrees of national synods should not be binding without the king's confirmation. 3. That the king's barons and officers should not be excommunicated, or constrained by penalty of ecclesias- tical rigour, without his permission. 3 1 ' Fidelitatem facere nolui, nee volo : quia nee ego promisi, nee ante- cessores meos antecessoribus tuis id fecisse comperio.' — Epp. Lanfr. ed. Giles, No. 10. 2 See the Ordinance of William in Ancient Laws and Institutes, ed. Thorpe, p. 213, and Select Chart. 81. 3 Eadmer, Hist. Nov. i. p. 6 ; Select Chart. 79. ' A further usage, which was claimed by Henry I. as a precedent, was the prohibition of the exercise of legatine power in England, or even of the legates landing on the soil of the kingdom without royal license.' Of these rules, Professor Stubbs remarks : ' There is something Karolingian in their simplicity, and possibly they may have been suggested by the germinating Gallicanism of the day. They are, however, of great prospective importance, and form the basis of that ancient customary law on which throughout the middle ii.] The Norman Conquest. 71 A further check on the dignitaries of the Church con- sisted in the tenure of their estates ; which from having been held by alodial title, or in frankalmoign (free alms), were for the most part converted into baronies to be held of the king by military service. The judicial organization of the kingdom at the end Judicial of William's reign was but slightly altered from what it orgamza 10n ' had been under Eadward the Confessor. The spiritual courts had now, as we have seen, exclusive jurisdiction in spiritual matters, but for civil matters the ordinary courts were still those of the shire, the hundred, or the borough, together with the hall-moots, now become the manorial courts baron, of the king or other lord. In the court of the shire all the freeholders of the shire, 1 in the court baron all the free tenants of the manor, 2 continued, as of old, to act as judges, and doubtless gave judgment in accordance with their ancient local customs ; but in the shire and hundred courts the Norman sheriff, or vice comes, now presided with a power and authority far less limited than the power and authority of any of his English predecessors. The supreme court of the kingdom was the Curia Curia Regis. Regis, at once the council of the king and the Witen- agemot of the nation, with whose counsel and consent the king discharged both legislative and judicial func- tions. The immense amount of business to be trans- Justiciar acted, the frequent absence of the king in Normandy, a PP oin e ■ and his ignorance of the English language, caused the appointment of a new officer of the highest dignity, the Justiciar, who represented the king in all matters, acted ages the English Church relied in her struggles with the papacy. ' — Const. Hist. i. 286. 1 See the accounts of the suits between the Bishop of Rochester and Pichot, the sheriff, on behalf of the king, Text. Roffens. 150 ; between Bishop Wulstan and the Abbot of Veshand, ' judicante et testificante omni vicecomitatu,' Heming, p. 77 ; and between Archbishop Lanfranc and Odo, Bishop of Bayeux, Text. Roff. Hickes, p. 32. 2 Spence, Eq. Juris, i. 100. -72 The Norman Conquest. [Ch. William's riches. as regent in his absence, and at all times administered the legal and financial business of the country. The office of Chancellor, who, as official keeper of the royal seal, first appears under Eadward the Confessor (the first of our kings who had a seal), was continued ; but he was subordinate to the Justiciar, heading the king's clerks or chaplains, who performed the duties of secre- taries. William was reputed to be the most opulent prince in Christendom. His income is circumstantially stated byOrdericus Vitalis to have been £1061 10s. i\d. a day, a sum which seems incredible, when tested by the relative value of money then and now. Little trust can be placed in the numerical statements of early chroniclers ; but there is no doubt that the Conqueror's revenue was exceptionally large, whilst his expenditure was relatively small. His armies were furnished free of cost by his military tenants, and by the old constitutional fyrd or national militia. When he thought fit to employ mercenaries, their cost was defrayed by a Danegeld levied on the whole cultivated land of the kingdom, and by billeting the troops at free quarters throughout the country. 1 His great power As king of the English, feudal superior of his tenants- in-chief, and personal lord of all his subjects, William exercised a power far greater than that which any of his predecessors had ever wielded. Though the formal changes which he made in our constitution and laws were few in number, his government was practically despotic, and his administration harsh. His tyranny, says Hallam, ' displayed less of passion or insolence than of that in- Harshness of his rule. 1 In the winter of 1083-84 the Conqueror levied a tax of six shillings on every hide of land, three times the rate of the old Danegeld, which after having been abolished by Eadward the Confessor was now revived in an aggravated form and continued as a permanent, though only occasional, source of revenue.— Chron. Sax. A.D. 1083 ; Freeman, Norm. Conq. iv. 685; Stubbs, Const. Hist. i. 279. !!•] The Norman Conquest. 7*3 difference about human suffering which distinguishes a cold and far-sighted statesman.' 1 To resist a threatened invasion from Denmark he A - D - Io6 9- caused the whole country between the Tyne and the Humber to be laid waste, so that for some years after- wards there was not an inhabited village and hardly an inhabitant left. 3 ' He was a very stark man and very savage : so that no man durst do anything against his will. He had earls in his bonds who had done against his will ; bishops he set off their bishoprics, abbots off their abbotries, and thegns in prison, and at last he did not spare his own brother Odo.' 'Truly in his time men had mickle suffering and very many hardships. Castles he caused to be wrought and poor men to be oppressed. He was so very stark. He took from his subjects many marks of gold and many hundred pounds of silver : and that he took, some by right and some by mickle might, for very little need.' ' He let his lands to fine as dear as he could : then came some other and bade more than the first had given, and the king let it to him who had •bade more. Then came a third and bid yet more, and the king let it into the hands of the man who bade the most. Nor did he reck how sinfully his reeves got money of poor men, or how many unlawful things they did. As man spake more of right law, so man did more unlaw. His rich men moaned and his poor men murmured : but he was so hard that he recked not the hatred of them all' 3 1 Mid. Ages, ii. 305. 2 W. Malmesbury, p. 103. 3 Saxon Chron. p. 189-191. CHAPTER III. REIGNS OF THE NORMAN AND FIRST ANGEVIN KINGS. William Rufus. 1087-1100. Slight constitutional importance of his reign. Rami If Flambard. William seeks support of the English against the Baronage: William Rufus, A.D. 1087-1100. Henry I. 1100-1135. Stephen. 1 1 35-1 1 54. Henry II. A.D. 1154-1189. Richard I. 1189-1199. The reign of William Rufus possesses little consti- tutional importance. A tyrant of the worst sort, he de- voted himself almost entirely to his pleasures, and after the death of Archbishop Lanfranc, his ablest adviser, left nearly all the work of government to his justiciar. This great official was not, as in the Conqueror's days, a great baron, but a humble and clever chaplain of congenial and compliant tastes, Ranulf Flambard, by whom the Church, the feudal vassals, and the people were sub- jected to systematic oppression and extortion. Under William Rufus the great struggle between the royal and feudal powers, which began under the Con- queror himself in the conspiracy of Ralph Guader, Earl of Norfolk or East Anglia, and Roger of Breteuil, Earl of Herefordshire, was actively carried on. Taking ad- vantage of the claim of Duke Robert to the throne of England, the larger part of the barons eagerly seized the opportunity of siding with him against the King. Seven years later an attempt was made to set aside the line of the Conqueror altogether in favour of Stephen of Aumale, grandson of Duke Robert II. of Normandy. On both occasions the insurrections were unsuccessful ; and being followed by considerable forfeitures served only to bring about the decay, which ultimately ended in the almost utter extinction, of the baronage of the ch. hi.] Reigns of the Norman. 75 Conquest. 1 In order to maintain his ground, the king was compelled to court the support of his English subjects, who eagerly and successfully fought for him against their feudal oppressors. On three occasions And promises ° rr good laws. — at his coronation, at the outbreak of the rebellion of his Norman barons almost immediately afterwards, and again in 1093, when ill and in fear of death — he sought to engage the affections of the people by issuing constitutional manifestos in which he pro- mised good laws, lighter taxation,, and free hunting. 3 But his promises were never kept. Instead of the free hunting promised, he made the capture of a stag a capital offence. 3 Henry I. on his accession issued a Charter of Liberties Henry I. which is in form an amplification of the covenant made charter of by the king with his people in the coronation oath. Liberties. Copies were despatched to the several counties and deposited in the principal monasteries. In this charter Henry endeavoured to propitiate all classes of his sub- jects by abolishing the ' malae consuetudines,' the illegal exactions, with which the clergy, the baronage, and the people generally had been oppressed during the reign of the late king. (1.) To the church he promised that on (i.) The Church, the death of an archbishop, bishop, or abbot, he would neither sell, nor let to farm, nor accept anything from, the possessions of the church or its tenants, during the vacancy of the benefice. (2.) To his barons and other (ii.) The vassals. 1 Stubbs, Const. Hist. i. 294. 2 Will. Malmsb., Gesta Regum, lib. iv. §306; Eadmer, Hist. Nov. i. p. 6 ; Select Chart. 89. 3 ' Venationes quas rex prius indulserat, adeo prohibuit ut capitale esset supplicium prendisse cervum.' — Will. Malm. Gesta Reg. iv. § 319. ' The king's acknowledgments of his duty were not however without their value. . . . He had testified to the nation his own duty and their right. He had revealed to them their moral and material strength at the same time. Fear of man and dread of God's present judgment forced him to the promise which was a confession of justice, and placed means in their hands which would set their rights on a firmer basis than the conscience of a tyrant. If the reign of William Rufus had no other importance it taught a lesson of profoundly valuable consequence to his successor.' — Stubbs, Const. Hist. i. 297. 7 6 Reigns of the Norman [Ch. Reliefs. Marriages. Dower. Wardships. Demesne of military tenants. Testaments. Intestacy. Fines. (iii.) The nation, tenants-in-chief he promised a remission of various illegal exactions to which they had been subjected under cover of the incidents of feudal tenure. The heir should not be compelled to redeem his land, as in the time of the late king, William Rufus, but should pay only a lawful and just relief. The king's licence for the mar- riage of his vassal's daughter or other female relative must still be obtained, but it should be given without payment, and should not be refused unless the intended •husband was the king's enemy. In the case of an heiress, the king would take the advice of his baronage before giving her in marriage. Widows should not be given in marriage against their will. Widows without children should possess their dower unconditionally ; if with children, so long only as they continued chaste. The wardship of the persons and lands of children should belong to the mother or other relation. Knights, holding by military service, in order that they might efficiently equip themselves for the defence of the king and kingdom, should have their demesne lands free from all ' gilda ' and ' opera.' The right of the king's vassals to bequeath their per- sonal property by will was recognized ; and in the case of intestacy, the deceased person's wife, children, rela- tions, or vassals legally authorized, were to dispose of it for the good of his soul, as to them should seem good. Fines for offences should not be assessed at the king's mercy, as in the time of his father and brother, but according to the usage in the time of the king's ' other ancestors.' Thus early had the Norman barons begun to claim for themselves the benefit of old English laws. (3.) To the nation at large the king granted the laws of Eadward the Confessor with the emendations made by the Conqueror with the consent of his barons. 1 The 1 ' Lagam Eadwardi regis vobis reddo cum illis emendationibus quibus pater meus emendavit consilio baronum suonim.' ni.] and first Angevin Kings. * J 7 claims of the people were also recognized in the procla- mation of the king's peace, and ^especially in the express extension to all undertenants of the benefits granted to the king's immediate vassals. The king further pro- mised to exact no moneyage which had not been levied in the time of King Eadward, and to punish all coiners or utterers of base money. 1 The only unpopular clause in the charter was that in Forests retained. which Henry declared his intention to retain the forests in his own hand as his father had held them, a personal'' indulgence for which he pleads the ' common consent ' of his barons. This charter of liberties is the sole legislative enact- So-called Leges ment of Henry's reign; for the so-called 'Laws of Henry I.' were compiled at a later date. 3 Historically Historical and the charter records the nature and recent introduction of p onstltutlonal importance ot the illegal exactions which it specifically abolishes ; con- Henry's charter, stitutionally it is important as a formal and deliberate recognition, by a practically despotic king, of the ancient and lawful freedom of the nation, and of the limitation of the royal power. It seems to have been re-issued by Henry at various times ; but as soon as he found himself firmly seated on the throne, he never hesitated to dis- regard its provisions. It was renewed by Stephen and by Henry II. ; and under John it served, in the hands of Archbishop Stephen Langton, as a text upon which the barons founded their claim for a restoration of the ancient liberties of the nation. His somewhat questionable title to the throne, the Henry courts 1 See the charter in full in Ancient Laws and Institutes, p. 215, and Select Chart. 96. 3 The compilation known as the ' Leges Henrici Primi ' is * a collec- tion of legal memoranda and records of custom, illustrated by reference to the civil and canon laws, but containing very many vestiges of ancient English jurisprudence. The date of the compilation is later than the reign of Henry I. ' . . . 'It would appear to give probable but not authorita- tive illustrations of the amount of national custom existing in the country in the first half of the I Ith century, but cannot be appealed to with any confi- dence, except where it is borne out by other testimony.' — Stubbs, Select Chart. 100. 7 8 Reigns of the Norman [Ch. and receives support of the native English. Marries a niece of Eadgar ^Etheling. Triumphs over the rebellious barons. Raises up new men. Strengthens jurisdiction of County and HundredCourts. contest with his brother Robert, and the difficulty of keeping in check a turbulent and powerful baronage, caused Henry to court the alliance and support of the native population. The people were already predisposed in his favour, as being the first of the new dynasty who had been born and educated in England. His politic marriage with the 'good Queen Maud,' daughter of Malcolm Canniore, King of Scots, by Margaret, sister of Eadgar iEtheling, gave him a still stronger claim to national support. Moreover, the feudal barons, ever seeking to achieve their independence, were the common enemies of both king and people. Impelled alike by national sentiment and unity of interest, and encouraged by the king's promises of good government, the people steadily supported the crown against all assailants. Henry was thus enabled to obtain a complete triumph over his rebellious vassals, many of the most powerful of whom, '^including Robert de Belesme, Earl of Shrewsbury and Arundel, the most dangerous of them all, were expelled the kingdom with the forfeiture of their English estates. 1 In the end Henry acquired a pleni- tude of royal power equal, if not superior, to that which the Conqueror had enjoyed. In the redistribution of' the forfeited lands and jurisdictions he carried out his father's policy of keeping within moderate limits the possessions of any one vassal. As a further check to the still formidable nobility of the Conquest, he raised to the baronage a number of new men whom he placed on an equality with the proudest of their fellow-barons. 2 During the late reign the feudal nobles appear to have extended their local hereditary franchises to the 1 The expulsion of Robert de Belesme is vividly described by Ordericus Vitalis. The English were overjoyed at his downfall. ' Omnis Anglia, ex- ulante crudeli tyranno, exultavit, multorumque congratulatio regi Henrico tunc adulando dixit, "Gaude rex Henrice, DominoqueDeo gratias age quia tu libere coepisti regnare ex quo Rodbertum de Belismo vicisti et de finibus regni tui expulisti."' — Eccl. Hist. xi. 3. 2 ' Plerosque illustres pro temeritate sua de sublimi potestatis culmine praecipitavit, et haereditario jure irrecuperabiliter spoliatos condemnavit. ni.] and first Angevin Kings. 79 detriment of the national courts of the shire and hundred. Henry restored the jurisdiction of these courts to its ancient vigour by ordering that they should be held at the same places and during the same terms as in the time of King Eadward. All suits respecting lands be- tween tenants-in-chief of the crown were to be deter- mined in the king's court, but like suits between vassals of different mesne lords were to be heard in the county court. 1 The proper jurisdiction of the baronial court over the disputes of two or more tenants of the same lord was not interfered with. The king also granted charters to several boroughs, Charters to confirming and augmenting their ancient privileges. His charter to the citizens of London is remarkable for the amount of municipal independence and self-govern- ment which it accorded. But London had always held an exceptional position ; and its privileges were far in advance of those as yet granted to. the other towns of the kingdom. 3 At the same time that Henry strengthened the local ^P 3 ? 1 . courts of the shire, the hundred and the borough, as a centralized and check to the feudal nobility from below, he endeavoured sys ema Ize to curb them from above by centralizing and syste- matizing the royal administration. Roger, bishop of Salisbury, having served as Chancellor from 1101 to 1 103, was appointed, in 1 107, Chief Justiciar. Under his direction, during his thirty-two years' tenure of this high office, the administration of the Curia Regis was organ- Alios e contra favorabiliter illi obsequentes de ignobili stirpe illustravit, de pulvere, ut ita dicam, extulit, dataque multiplici facultate super consules et illustres, oppidanos exaltavit.'— Ord. Vit. Eccl. Hist. xi. c. 2; Select Chart. 94. 1 See the charter in Fadera, i. 12 ; Select Chart. 99. The address ' Henricus rex Anglorum Samsoni episcopo et Ursoni de Abetot et omnibus baronibus suis Francis et Anglis de Wirecestrescira salutem,' is remarkable for two reasons : (1) The Bishop of the diocese is joined with the sheriff, in the ancient form, notwithstanding the separation of the spiritual and temporal jurisdictions decreed by the Conqueror ; (2) English barons are mentioned. 3 Compare the charter to London with those to Beverley and Newcastle- on-Tyne.— Select Chart. 102-108. 8o Reigns of the Norman [Ch. Occasional circuits of the ■Justices. Severity in punishing offences against the law. ized for judicial and financial purposes. A regular routine of business was established. The annual courts were still held ' de more/ during the great festivals, at Gloucester, Winchester, and Westminster; but as these were found inadequate for the increasing business of the nation, the Chief Justiciar, accompanied by some of the other justices of the king's court, began, towards the end of Henry's reign, to make occasional circuits round the kingdom, principally for fiscal but partly also for judicial purposes. The local courts were thus brought into closer connexion with the supreme national tribunal. By introducing order and system into the administration of law and government, Henry prepared the way for the important reforms which the reign of his grandson will present to our notice. The severity with which Henry punished offences against the laws caused him to be popularly regarded as the ' Lion of Justice ' described in the prophecies of Merlin. William Rufus had reintroduced the punish- ment of death for offences against the forest laws ; by Henry it was extended to ordinary crimes. In the year 1 124 no less than forty-four thieves were hanged in Leicestershire at one time. ' No man,' says the Saxon Chronicle, 'durst misdo against another in his time. He made peace for man and beast. Whoso bare his burden of gold or silver, no man durst say to him aught but good.' 1 By severe punishments he effectually checked the malpractices of the moneyers, which had caused a general depreciation of the coinage. He also checked the abuse of the royal right of purveyance by the 1 officers of his court. But the expenses of his foreign wars and home administration necessitated the imposi- tion of heavy and regular taxation, of which the con- temporary chroniclers complain in bitter terms. 2 1 Chron. Ang. Sax. ad ami. 1135 ; Select Chart. 95. 2 ' Non facile potest narrari miseria quam sustinuit isto tempore terra Anglorum propter exactiones regias.'— Flor. Wigorn. A.D. 1104; Select Chart. 93. See also Chron. Sax. nib. ann. 1104, 1105, mo, 11 18, 1124. in.] and first Angevin Kings. 81 After the triumph of Henry over the feudal baronage, 9"^°^ the only class in the state strong enough to offer any resistance to the royal power consisted of the clergy. The contest between the king and Archbishop Anselm on the question of investitures ended in a compromise. The ring and crosier, as denoting spiritual jurisdiction, were in future to be conferred by the pope ; fealty and homage, being civil duties, were still to be rendered to the king, in return for the temporalities of the see. Thus the national church regained her spiritual freedom, which the rapid growth of the feudal principle had in- juriously affected, and the king retained all that he could justly claim — the supremacy in things temporal. The chief constitutional importance of the struggle consists in the successful imposition of a limit to the royal power. At his coronation Stephen issued a charter briefly Stephen, confirming, in general terms, to the barons and men of Hisfast charter. England all the liberties and good laws which his uncle Henry, King of the English, had granted them, as well as~ all the good laws and good customs which they possessed in the time of King Eadward. 1 After a short interval the king held his first great council at Oxford, at which most of the English, together with several Norman, prelates and barons attended. In this assembly a second charter was drawn up and promulgated by the His second king. It is more definite in form than the earlier one, and partakes more of the nature of a solemn compact between the king and the nation. It was attested by no less than thirty-seven witnesses, of whom fourteen were bishops (eleven English and three Norman), and the rest lay vassals, for the most part of high rank and official position. As Stephen owed his election chiefly to the favour of the clergy, who were greatly influenced by his brother Henry, Bishop of Winchester, it is not surprising to find 1 Statutes of the Realm— Charters of Liberties, p. 4. 82 Reigns of the Norman [Ch. to the clergy, nation. the greater part of the charter devoted to concessions i.) Concessions (■<-, (-fog Church, (i.) The king promised to repress all simony, and to maintain the jurisdiction of the bishops over all clerical persons and their possessions. Eccle- siastical dignities, with their privileges and ancient customs, should remain inviolate. The Church should retain possession of all estates which it had enjoyed by an uncontested title at the death of the Conqueror, or which the liberality of the faithful had since then con- ferred. But if it should demand anything which it held or possessed prior to the death of the Conqueror, but had since lost, the king reserved to his indulgence and dispensation either to refuse or restore it. He renounced all claim to the property of deceased clergymen, whether dying testate or intestate ; and ordered that every vacant see with its possessions should be committed to the custody of the clergy, or other upright men of such see, (ii.) And to the until a pastor be appointed. (2.) To the people generally Stephen promised to maintain peace and justice in all things. All exactions and extortions, wickedly intro- duced by sheriffs or any other persons, he totally abolished; and promised to observe and cause to be observed good laws and the ancient and just customs in cases of murdrum and other pleas and suits. He reserved to himself the forests made and held by William, his grandfather, and William, his uncle ; but those added by King Henry he restored to the Church and realm. All these things the king granted and confirmed, 'saving his royal and just dignity ' — a somewhat vague and elastic reservation. 1 During the tumult and anarchy of what can scarcely be termed the ' reign ' of Stephen, in which all central authority collapsed, the provisions of these charters fell into abeyance, together with the whole legal and ad- ministrative machinery. But they are important as 1 Statutes of the Realm— Charter of Liberties, p. 3 ; Select Chart. 114. ni.] and first Angevin Kings. 83 forming another link in the chain by which the ancient liberties of the nation, symbolized in the popular mind by the laws of Eadward the Confessor, were handed down in unbroken series to the framers of the Great Charter. Brave, energetic, and personally popular, Stephen Feudal anarchy, lacked administrative ability and the art of governing men. The barons, taking advantage of his weakness, fortified their castles, and, under colour of supporting either the king or the empress, made themselves prac- tically independent of both. They claimed and exercised all the most obnoxious privileges of continental feudalism. ' Quot domini castellorum,' says the chronicler, 1 ' tot reges vel potius tyranni.' The king endeavoured to Creation of new strengthen his position by creating new earldoms, sup- ported by extravagant grants from the crown-lands and the exchequer. The only result was to impoverish him- self and arouse the jealousy of the old nobility. His justifiable but impolitic violence towards the three Arrest of the bishops, Roger of Salisbury and his nephews, Nigel of j^°^ ,„„ Ely and Alexander of Lincoln, secured, indeed, the surrender of their castles, but alienated the entire body of the clergy, who had been the king's chief supporters, and threw into confusion the whole administration of the government, over which Bishpp Roger, as justiciar, had hitherto continued to'preside. 3 Even the king's brother, Henry of Winchester, went over to the side of the em- press. During the long period of civil war the condition Wretched of the people was most lamentable. Both sides employed peopie.° n ° f * e mercenary troops, principally from Flanders, who be- 1 Will. Newb. Hist. Angl. i. 22 ; Select Chart. 112. ' Castella quoque per singulas provincias studio partium crebra surrexerant, erantque in Anglia quodammodo tot reges vel potius tyranni, quot domini castellorum, habentes singuli percussuram proprii mimismatis, et potestatem subditis regio more dicendi juris.' 2 ' The arrest of Bishop Roger was perhaps the most important consti- tutional event that had taken place since the Conquest ; the whole adminis- tration of the country ceased to work, and the whole power of the clergy was arrayed in opposition to the King. It was also the signal for the civil war, which lasted with more or less activity for fourteen years.' — Stubbs, Const. Hist. i. 326. G 2 8 4 Reigns of the Norman [Ch. Peace of Wallingford. Scheme of reform. Death of Stephen. 'Henry II. 1154-1189. haved with the greatest insolence and barbarity. ' Never yet,' says the Saxon Chronicle, speaking of this reign, ' was there more wretchedness in the land.' 1 At length, in 1153, after the death of Stephen's eldest son, Eustace, a pacification was brought about at Wallingford, through the mediation of the bishops. 2 It was agreed between the king and young Henry, Matilda's son, now in his twenty-first year, and ratified by the assent and homage of the bishops and barons on both sides, that Henry should give up his claim to the present possession of the throne, and should be acknowledged as the rightful successor on the death of Stephen. As a part of the pacification a comprehensive scheme of reform was drawn up, to be carried out by both Stephen and Henry, for the restoration of good govern- ment and national prosperity. It included the resump- tion by the king of the royal rights which had been usurped by the barons ; the restoration to the lawful owners of the estates of which they had been deprived by intruders ; the razing of the ' adulterine,' or un- licensed castles ; the restoration of agriculture by means of a system of State subventions to the impoverished farmers; the maintenance of the rights of the clergy; the revival of the sheriffs' jurisdiction, and the appointment of impartial men to that office ; the disbandment of the armed forces ; the banishment of the foreign mercenaries ; the strict administration of justice ; the encouragement of commerce, and a reform of the coinage. 3 In less than a year from the date of the treaty, the death of Stephen on the 25 th Oct., 1154, handed over the imperfectly accomplished work of restoring order and good government to Henry of Anjou. Henry II. succeeded to the throne, pursuant to the treaty of Wallingford, without the faintest appearance of 1 Chron. Sax. 239. 2 Matt. Paris, Hist. Ang. (ed. Wats) p. 86, a.d. 1153; Select Chart. 112. 3 Stubbs, Const. Hist. i. 333. in.] and first Angevin Kings. 85 opposition. The regularity of his accession was doubt- less facilitated by the great strength which his extensive Continental possessions gave him. 1 To the English people, moreover, he was welcome as a descendant of their ancient royal house ; and throughout his reign they faithfully supported him in every emergency. But though claiming, through his mother, to be at once Norman and English, Henry was by birth and cha- racter neither Norman nor English. 3 He was the The Angevin founder of a new and foreign dynasty, the Angevin, or dvnast y- Plantagenet as it was subsequently called, 3 which was destined to rule over England for a period of more than three centuries (A.D. 1 154-1485). Henry himself en- deavoured to rule England as an English king, and he was far too able and energetic ever to succumb to the influence of a favourite, foreign or native. But under his sons Richard and John, and his grandson Henry III., the evils of a foreign dynasty made themselves felt, and the descendants of both English and Norman alike experienced the bitterness of being governed by a set of foreign favourites, supported by the swords of foreign mercenaries. *. Henry II. had the advantage of coming to the throne after a long civil war, during which the nation had 1 From his father Henry had inherited Anjou and Touraine ; in right of his mother he possessed Normandy and Maine, and with his wife Eleanor, who had been divorced from Louis VII. of France, he had received the seven provinces of Poitou, Saintonge, Auvergne, Perigord, Limousin, Angoumois, and Guienne. ' A third part of France, almost the whole western coast from the borders of Picardy to the mountains of Navarre acknowledged his authority ; and the vassal who did homage to the sovereign for his dominions was in reality a more powerful prince than the king who received it. ' — Lingard, ii. 189. 2 See Freeman, Growth of Eng. Const. 72. ' The peculiar position of Henry II. was something like that of the Emperor Charles V. — that of a prince ruling over a great number of distinct states without being nationally identified with any of therfi. Henry ruled over England, Normandy, and Aquitaine, but he was neither English, Norman, nor Gascon.' — Ibid. 177. * ' The Angevin family are commonly known as the Plantagenets ; but the name was never used as a surname till the fifteenth century. The name is sometimes convenient, but it is not a really correct description, like Tudor and Stewart, both of which were real surnames borne by the two families before they came to the crown.' — Ibid. 176. 86 Reigns of the Norman [Ch. Charter of Liberties. Establishes law and order. Henry's policy. Two great constitutional results of Henry's reign. become thoroughly weary of anarchy. At his corona- tion, or shortly afterwards, he issued a charter, briefly and in general terms granting and confirming to the Church, his earls, barons, and all his men, all the liberties and free customs granted by the charter of his grand- father, King Henry, and abolishing and remitting all the evil exactions which that king had abolished and re- mitted. 1 Without any delay the young king set himself energetically to the task, which he persistently worked at throughout his reign, of establishing law and order upon a permanent basis. Taking as his immediate model the government of his grandfather, Henry I., he reconstructed the disorganized administrative and judicial machinery of the kingdom, but with developments and innovations which were the outcome of his own individual policy. 2 The aim of his policy through life appears to have been the consolidation and centralization of the kingly power in his own hands, and the rounding off, as it were, of his great empire, extending from the Cheviots to the Pyrenees. He attempted, though with only partial success, to reduce the Welsh to obedience ; Ireland, unfortunately for herself only imperfectly conquered, was annexed to the English crown ; and Scotland ac- knowledged his superiority. The two great constitutional results of Henry's reign were : (i) the reorganization and full development of the kingship as a monarchy at once feudal and national.; and (2) the maintenance of the legal supremacy of the State over the National Church. In working out his policy, 1 Statutes of the Realm — Charter of Liberties, p. 4 ; Select Chart. 128. 2 ' Henry II. is the first of the three great kings who have left on the constitution indelible marks of their own individuality. What he reor- ganised Edward I. defined and completed. The Tudor policy, which is impersonated in Henry VIII. tested to the utmost the soundness of the fabric : the constitution stood the shock, and the Stewarts paid the cost of the experiment. Each of the three sovereigns had a strong idiosyncrasy, ' and in each case the state of things on which he acted was such as to make the impression of personal character distinct and permanent.' — Stubbs, Const. Hist. i. 446. in.] and first Angevin Kings. 87 the king had to contend with two powerful opponents — (1) the feudal baronage, whose power and privileges it was necessary largely to curtail, and (2) the clergy who, under the system of separate spiritual and temporal jurisdictions initiated by the Conqueror, had succeeded in obtaining a mischievous and even dangerous immunity from all the ordinary processes of law. Over the barons Henry was completely successful. The programme of Administrative administrative reform, which had been included in the ie orms ' terms of the pacification of Wallingford was strictly carried out. The ' adulterine ' castles were destroyed ; the new earldoms extinguished ; the alienated demesnes of the Crown resumed ; the foreign mercenaries banished ; the coinage was reformed. 1 With the aid of counsellors whose ability he had the discernment to detect, 2 he re- organized and extended the judicial and financial administration of the Curia Regis and Exchequer. He Itinerant renewed the provincial visitations of itinerant justices, Juslces increased their number, and assigned them regular circuits. This diffusion of royal justice over the whole kingdom was a great step in its organization. Another The Grand legal improvement in this reign was the institution of the Grand Assize, or trial by the recognition of a jury, which superseded the old modes of trial by battle and 1 Rob. de Monte, A.D. 1155. 'Rex Henricus coepit revocare in jus proprium urbes, castella, villas, quae ad coronam regni pertinefoant, castella noviter facta destniendo, et expellendo de regno maxime Flan- drenses, et deponendo quosdam imaginarios et pseudocomites quibus rex Stephanus omnia pene ad fiscum pertinentia minus caute distribuerat. ' The new coinage is mentioned in Ben. Abb. i. 263, sub. arm. 1180. — Select Chart. 122, 127. 2 Henry's first ministers were ' the Earl of Leicester, Robert de Beau- mont, Archbishop Theobald, who had been firmly attached to the interests of the Empress throughout the later years of the struggle, Bishop Henry of Winchester, and Nigel of Ely who represented the family and official training of Roger of Salisbury the justiciar of Henry I. In a subordinate capacity was Thomas Becket of London, the pupil of Theobald and future archbishop and martyr, and Richard de Lucy, who had charge of the castle of Windsor and the Tower of London at the peace, who had possibly acted as justiciar during the last year of Stephen, and who filled the office for the first twenty-five years of Henry's reign. ' De Lucy was succeeded as, justiciar in 1 1 80 by the great lawyer, Ranulf Glanvill. — Stubbs, Const. Hist. i. 449. 88 Reigns of the Norman [Ch. compurgation. The principle of recognition by a jury was extended to all descriptions of business, fiscal and legal. In conjunction with the visits of the itinerant justices, it exercised a very important influence in train- ing the people for self-government. 1 By means of Henry's administrative reforms, not only did the mass of the people obtain the enjoyment of an orderly and legal security, but the feudal baronage, a source of danger to Crown and people alike, were kept in strict subordination, and the executive power taken out of their hands. Instead of bestowing the office of sheriff on the great barons, who had evinced a tendency to make it hereditary in their families, Henry gave it to lawyers and soldiers drawn from the ranks of the new official nobility. For the office of chief justiciar he selected the ablest laymen instead of ecclesiastics, thus curbing the power of both bishops and barons. The , power of the latter was still further, and permanently, diminished by the institution, on the occasion of the Scutage, Toulouse, war, of a commutation of personal military service for a money payment termed Scutage? Thus, in addition to the fiscal and judicial, the military administration of the kingdom was now concen- trated in the king's hands. In a fiscal point of view the king was enabled, by means of scutage, to increase his revenue by bringing the lands of the dignified eccle- siastics under contribution. Politically it rendered him independent of the military aid of his barons in foreign warfare, in which their place was supplied by hired Assize of Arms, mercenaries. At home he rendered himself equally independent of the feudatories, by reviving in the Assize 1 For a more detailed consideration of Henry's legal and administrative reforms see infra, ch. v. 2 Rob. de Monte, A.D. 1159 ; Gervas, c. 1381 ; Select Chart. 122, 123. • A precedent was found in the ancient fyrdwite, the fine paid by the Anglo-Saxon warrior who failed to follow his king to the field. But instead of being a punishment it was now regarded as a privilege ; those tenants of the crown who did not choose to go to war paid a tax of two marks on the knight's fee.' — Stubbs, Const. Hist. i. 456. A.D. I l8l. in.] and first Angevin Kings. 89 of Arms, an ordinance issued in 1 181, the ancient fyrd, or national militia. 1 The effect of Henry's policy was greatly to augment the power of the Crown. But while maintaining a strong central government,- he never aimed at despotic power. He appears to have been imbued with a sincere regard for constitutional government of the feudal type. He was continually calling his great council together. No public matter of importance was transacted, no law issued, without their consent and advice. And in this national council all ranks of the landowners attended — archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders. The form and much of the spirit of national representation was thus maintained. In his contest with Becket and the clergy, Henry was only partially successful. But though obliged to submit to personal humiliation and a seeming defeat, the prin- , ciple for which he had contended — the supremacy of the royal jurisdiction over clergy and laymen alike — was practically, as well as theoretically, vindicated. The celebrated Constitutions of Clarendon, six- Constitutions of teen in number, are in form a record and acknowledg- a .d. 1164.' ment by the archbishops and bishops, in presence of the earls, barons, and other ' proceres ' of the kingdom, clerical and lay, of the customs, ascertained by recogni- tion to have regulated the relations of Church and State in the time of v Henry I. The record is expressed as being made on account of the dissensions and discord which had arisen between the clergy and the king's justices and barons concerning the nature of these customs, and contains the distinct promise, of the arch- bishops and bishops faithfully to observe them as therein defined. The most important articles may be conveniently arranged in five groups : 1 Ben. Abb. i. 278; Hoveden, ii. 261 ; Select Chart. 127, 147. go Reigns of the Norman [Ch. Trial of clerks accused of Suits as to advowsons and presentations. Pleas of debt. Suits between laymen and clerks as to land. Trials of laymen for spiritual offences. I. All clerks accused of any crime were to be sum- moned in the first instance before the king's justices, who should determine whether the cause ought to be tried in the secular or spiritual court. In the event of the cause being remitted to the spiritual court, a lay officer should be appointed by the king's justices to watch the proceed- ings ; and the accused, if found guilty, should not be pro- tected by the Church (cap. iii.). All matters pertaining to the king's court should be terminated there ; but causes which appeared to fall within the jurisdiction of the ecclesiastical courts should be sent thither to be dealt with (cap. vii.). The distinction between the civil and ecclesiastical jurisdictions introduced by William the Conqueror was thus maintained. But the king's court was first to decide the fact whether or not the accused was entitled to be tried in the spiritual court ; the latter court then decided the fact of the guilt or innocence of such accused persons as were remitted to it ; and the king's court sentenced and punished the guilty. All disputes concerning advowsons and presentations to livings, whether between laymen, or clerks, or laymen and clerks, were to be dealt with and terminated in the king's court (cap. i.). The king's court should have jurisdiction over all pleas of debt, whether involving a question of good faith (of which the Church claimed exclusive cognizance) or not (cap. xv.). In disputes between laymen and clerks as to land, the chief justice should decide, by the recognition of twelve lawful men, whether it was held by feudal or eleemosy- nary tenure (frankalmoign), and should refer the suit accordingly, unless both parties agreed on the same judge, to the lay or ecclesiastical tribunal (cap. ix.). Laymen tried in the bishop's court were to have the benefit of common law rules of evidence. 1 If no one 1 ' Non debent accusari nisi per certos et legales accusatores et testes.' in.] and first Angevin Kings. 9 1 should be willing or dare to appear as accuser against a powerful delinquent, the sheriff, at the request of the bishop, should impanel and swear twelve lawful men of the vicinage to give true evidence (cap. vi.). 2. No tenant-in-chief of the king or officer of his Excommunica- household should be excommunicated, nor his lands put in-chief and under interdict, without the previous consent of the officers of the ' r . king s house- king, or, in his absence from the kingdom, of the justiciar hold. (cap. vii.). On the same principle, tenants of any of the king's cities, castles, boroughs, or demesne manors, refusing to appear when cited by the archdeacon or bishop to answer for any wrong falling within his lawful jurisdic- tion, might be placed under interdict, but not excom- municated until application had first been made for the intervention of the king's chief local officer (cap. x.). 3. The custody of vacant archbishoprics, bishoprics, Kin S to h * ve abbeys, and priories of royal foundation, should be in the vacant sees, etc. king's hand, and their revenues paid to him. Election of a new incumbent should take place, in Mode of election ■ ■ 1 • r^o bishoprics obedience to the kings writ, by the chief clergy of and abbacies. the Church, assembled in the king's chapel, with the assent of the king and with the advice of such bene- ficed clergymen as the king might summon for the purpose. Before consecration, the incumbent elect should do Homage and homage and fealty to the king as his liege lord, of life, incumbent elect. limb, and earthly honour, saving the rights of his order (cap. xii.). Archbishops, bishops, and all the beneficed clergy of Baronial duties , . , , , ,. c , . . . • . . . , of the prelates the kingdom, holding 01 the king.zw capite, should answer and other clergy for their baronies to the king's justices arid officers, and ca'ite^ - '" 1 follow and observe all royal rights and customs; and, like the rest of the barons, ought to take part in the judgments of the king's court, except in cases involving loss of life or limb (cap. xi.). No archbishop, bishop, or beneficed clergyman should c,er §7 not to r x aj quit the realm 92 Reigns of the Norman [Or. without the king's licence. Ecclesiastical appeals not to go further than the archbishop without the king's consent. Ordination of villeins. quit the realm without licence from the king. Those who were permitted to leave, should give pledge, if required, not to contrive any hurt to the king or kingdom during their absence. 4. Appeals ought to proceed from the archdeacon to the bishop, and from the bishop to the archbishop. If the archbishop failed to do justice, resort should be had, in the last instance, to the king, so that by his order the controversy might be terminated in the archbishops court and not proceed further {i.e., to the Pope), without the ' king's assent (cap. viii.). 5. Lastly, the sons of villeins (rusticorum) were not to be admitted to orders without the assent of the lord on whose land they were born (cap. xvi.) x This restriction on the ordination of villeins brings out the democratic element which, in a certain way, the Church of the Middle Ages possessed. Not that the mediaeval church was really democratic, for its system of government culminated in the papacy, and the papacy had become the key-stone of a great arch of despotism. But it was through the portals of the church only that the low-born and landless man, however great his intel- lectual ability, could hope to attain to dignity and power. The intention of the king and barons, in this article of the Constitutions of Clarendon, probably went no further than to protect the legal property which every feudal lord had in the services of his villeins. But its practical effect was undoubtedly still further to depress the lowest class of the population. A similar prohibition is contained in the Assize of Clarendon, issued by Henry in 1 166; and more than two hundred years afterwards, in the fifteenth year of Richard II., we find the Com- mons House of Parliament petitioning that villeins might not be allowed to put their children to school in order to advance them by the Church, 'and this 1 Constitutions of Clarendon, Lyttelton's Life of Henry II., iv. 182-185: Select Chart. 131-134. in.] and first Angevin Kings. 93 for the honour of all the freemen of the kingdom/ Under Richard II. it is not so much the feudal and pro- prietary as the anti-democratic and caste feeling which is manifested. 1 The reign of Richard I. belongs not so much to the Richard i. history of England as to the history of Christendom. J 9 He was the ' creation and impersonation of his own age,' 2 and occupied the central .place in the history of his times. With the exception of about four months immediately An absentee following his coronation, and the two months which he g " spent in England in 1194 after his release from cap- tivity, Richard was absent from his kingdom during the whole ten years of his reign. By birth, education, and sympathies essentially a foreigner, he seems to have regarded England merely as an appanage to his conti- nental possessions, and a profitable source of revenue. It was the strong administrative system established under his father, by which the power of the crown was so largely augmented, that rendered it possible for Richard thus to govern as an absentee king. To sup- Excessive port his expedition to Palestine, to pay his ransom from taxatlon - captivity, and to carry on his wars in France, every known source of taxation was exhausted. Public offices Ways of raising and dignities were openly sold to the highest bidder ; mone y- the demesne lands of the crown were first sold and then, after a time, forcibly resumed ; all the feudal dues, including the recently introduced scutage, were rigor- ously exacted ; the old Danegeld, under the thin disguise of a ' carucage,' was revived in a more stringent form ; not only land, but personal property, which had for the first time been subjected to taxation in the Saladin tithe granted to Henry II. in 1188, was laid under a heavy impost ; the gold and silver of the churches were seized ; and the Cistercian monks compelled to compound for 1 Rot. Pari. 15 Rich. II. 294; Hallam, Mid. Ages, iii. 181. 2 Stubbs, Itinerarium Ricardi Primi, Public Record Series. 94 Reigns of the Norman [Ch. Popular rising under William- with-the- Beard, or Fitz-Osbert. Constitutional opposition of the clergy. all their wool. 1 These systematic, and oppressive exac- tions appear to have been borne by the nation with remarkable patience. The rising of the populace of London, under William-with-the-Beard, ' quidam legis peritus,' was not so much a resistance to taxation as to its unjust assessment, because the rich citizens ' sparing their own purses, willed that the poor should pay the whole.' 2 The only real opposition proceeded from the clergy. In 1198 the regular clergy refused to pay the carucage, or tax of five shillings imposed on each caru- cate or hundred acres of land. The king immediately issued a proclamation directing that on the one hand no layman should be liable to make satisfaction for an injury committed against a clerk, and, on the other, that every clerk injuring a layman should be forthwith com- pelled to give redress. 3 This amounted to virtual out- lawry, and the monks were forced to submit. A more important and successful stand was made in the same year by the Bishops Hugh of Lincoln and Herbert of Salisbury. In a council of the barons, summoned at Oxford by the justiciar Archbishop Hubert Walter, to consider the king's demand for an aid of three hundred knights, each to receive three shillings a day, and to serve with him for a year against Philip of France, the two bishops alone had the courage to refuse ; alleging that the lands of their sees were liable for military ser- 1 " Et omnia erant ei venalia, scilicet potestates, dominationes, comi- tatus, vicecomitatus, castella, villae, praedia, et cetera iis similia. — Bened. Abb. ii. 90. For the various modes of taxation see Rog. Hoveden, iii. 210, 240, A.D. 1 193 ; Select Chart. 243, 244, 246. 2 Rog. Hoveden, iv. 5, A.D. 1 196. ' Eodem anno orta est dissensio inter cives Londoniarum. Frequentius enim solito propter regis captionem et alia accidentia imponebantur eis auxilia non modica, et divites propriis parcentes marsupiis volebant ut pauperes solverent universa. Quod cum quidam legis peritus, videlicet Willelmus cum barba, filius Osberti, videret, zelo justitiae et aequitatis accensus factus est pauperam advocatus, volens quod unusquisque tam dives quam pauper secundum mobilia et facilitates suas daret ad universa civitatis negotia.' — Select Chart. 247. The talliage was assessed as a poll tax equally on all the citizens rich and poor. Fitz- Osbert wished it to be assessed in proportion to the property of each citizen. 3 Rog. Hoveden, iv. 66 ; Select Chart. 250. in.] and first Angevin Kings. 95 vice within the kingdom only and not abroad. 1 The opposition was successful; the king's demand was with- drawn ; and shortly afterwards the justiciar resigned. 2 During the all but continuous absence of Richard, the Administration & of Richard s administration of the kingdom was carried on by four four successive successive justiciars who acted as viceroys, (i.) William ("?Longchamp : Longchamp, bishop of Ely, a Norman of obscure birth, was both justiciar and chancellor. As a parvenu he excited the jealousy of the barons, and by his vigorous assertion of the royal rights raised up a strong opposition headed by Earl John, who was ever plotting against his brother's government. The struggle ended in the depo- His deposition, sition of Longchamp from the justiciarship by a great council of the bishops, earls, and barons of England, and the citizens of London, assembled at St. Paul's by Earl John, and apparently acting in concert with William of Coutances, archbishop of Rouen, whom the king had sent over from Messina some months previously with a secret appointment to the office of justiciar, to be pro- duced only if circumstances should require it. 3 This proceeding has been characterized as 'the earliest au- thority for a leading principle of our constitution, the responsibility of ministers to parliament.' 4 But this 1 ' Scio equidem,' said St. Hugh of Lincoln, 'ad militare servitium domino regi, sed in hac terra solummodo, exhibendum, Lincolniensem ecclesiam teneri ; extra metas vero Angliae nil tale ab ea deberi. Unde mihi consultius arbitror ad natale solum repedare, et eremum more solito incolere, quam hie pontificatum gerere et ecclesiam mihi commissam, antiquas immunitates perdendo, insolitis angariis subjugare.' — Vita Magna S. Hugonis, p. 248 ; Select Chart. 247. 2 ' This event is a landmark of constitutional history : for the second time a constitutional opposition to a royal demand for money is made, and made successfully. It would perhaps be too great an anticipation of modem usages to suppose that the resignation of the minister was caused by his defeat.' — Stubbs, Const. Hist. i. 509. ' The first case of any opposition to the king's will in the matter of taxation which is recorded in our national history ' was the refusal of Becket to agree to Henry II. 's wishes with reference to the Danegeld in 1163. This was the commence- ment of the quarrel between the King and the Archbishop ; and as ' Dane- geld appears for the last time under that name in the accounts of the year,' the opposition ' would seem to have been, formally at least, successful.' — Ibid. 463. 3 Bened. Abb. ii. 213, A.D. 1191 ; Select Chart. 244. 4 Hallam, Mid. Ages, ii. 325. 9 6 Reigns of the Norman [Ch. (ii.) William of Coutances. (iii.) Hubert Walter. . (iv.) Geoffrey Fitz-Peter. Election of county Coroners. Charters granted to boroughs. view seems to invest the action of the council of St. Paul's with too great importance. It can at most be regarded as a rude anticipation, by an irregularly con- stituted assembly acting as if it represented the nation, of that constitutional control over ministers of the crown which the regular national council was later on to claim and obtain. (2.) The assembly which deposed Long- champ recognized the archbishop of Rouen as his suc- cessor. At the close of the year 1193, the archbishop of Rouen gave place to (3) Hubert Walter, archbishop of Canterbury, and a nephew of the celebrated Ranulf Glanvill ; and on the resignation of Hubert Walter in 1 194, Geoffrey Fitz-Peter, Earl of Essex, the fourth and last of Richard's justiciars, entered into office. Under the rule of each of the justiciars, but more especially of Hubert Walter and his successor, Geoffrey Fitz-Peter, the administrative system established by Henry II. was maintained and considerably developed. By the extensive application of the principle of repre- sentation to the assessment of the taxes on both real and personal property, the people were gradually educated for self-government. In the year 11 94, the principle of election in the appointment of county' officers was in- troduced. Coroners, three knights and a clergyman, were ordered to be elected in every county, to hold pleas of the Crown. 1 The advance made by the boroughs to- wards independence, through the charters which, as a means of raising money, were extensively sold to them, is also an important feature of this reign. In some instances the privileges granted were assimilated to those of the citizens of London, which served as a model for the provincial towns, and included the right of elect- ing the town- reeve. 2 On the occasion of Longchamp's 1 ' Praeterea in quolibet comitatu eligantur tres milites et unus clericus custodes placitorum coronae.' — Capitula placitorum Coronae Regis, cap. 20; Select Chart. 252. 1 ' Has praedictas consuetudines eis concessimus, et omnes alias m -] and first Angevin Kings. 97 deposition, in which, as we have seen, the citizens of London concurred, they secured a formal recognition, by the justiciar and barons, of their existence as a ' communal the exact meaning of which is not quite clear, but which was certainly a near approach to what is understood by a ' corporation.' l In connexion, doubt- less, with this establishment of the ' communa,' the mayor now appears for the first time. On the whole, the reign of Richard, through no merit Summary, however of his own, was beneficial to the liberties of the people. They became accustomed to the rule of law as opposed to the rule of force. Even the unexampled tax- ation was levied with the appearance of legal formality. The immense sums raised are a proof that the kingdom had rapidly advanced in wealth during the preceding reign. The baronage, which had been severely repressed under Henry II., became at once more orderly and less inclined than formerly to submit to the caprice of the sovereign, to whose personal interference they had become unac- customed. The fusion of the two races, nearly accom- plished under Henry II., was silently worked out under Richard ; and in the following reign we shall find the barons and people claiming for themselves against the crown the common liberties of Englishmen. libertates et liberas consuetudines quas habuerunt vel habent cives nostri Londoniarum qilando meliores vel liberiores habuerint, secundum libertates Londoniarum et leges civitatis Lincolniae. . . . Et cives Lincolniae faciant praepositum quem voluerint de se per annum, qui sit idoneus nobis et eis.' — From Charter of Richard I. to Lincoln, A.D. 1 194; Select Chart. 258. 1 Bened. Abb. ii. 213, A.D. 1191; Select Chart. 244. No boroughs were incorporated as municipal corporations, in the modem sense of the term, till the reign of Henry VI. — Merewether on Boroughs, vol. i. Introduction. CHAPTER IV. MAGNA CHARTA. The three great fundamental compacts between the crown and the nation: Magna Charta, Petition of Right, Bill of Rights. The Great Char- ter, an act of the wholepeople under the leader- ship of the barons. Three great political documents, in the nature of fundamental compacts between the crown and the nation, stand out as prominent landmarks in English Constitutional history. Magna Charta, the Petition of Right, and the Bill of Rights, constitute, in the words of Lord Chatham, ' the Bible of the English Constitu- tion.' In each of these documents, whether it be of the 13th or of the 17th century, is observable the common characteristic of professing to introduce nothing new. Each professed to assert rights and liberties which were already old, and sought to redress grievances which were for the most part themselves innovations upon the ancient liberties of the people. In its practical com- bination of conservative instincts with liberal aspirations, in its power of progressive development and self-adapta- tion to the changing political and social wants of each successive generation, have always consisted the peculiar excellence, and at the same time the surest safeguard, of our constitution. 1 The Great Charter of Liberties was the outcome of a movement of all the freemen of the realm, led by their 1 ' By far the greatest portions of the written or statute laws of England consist of the declaration, the re-assertion, repetition, or the re-enactment, of some older law or laws, either customary or written, with additions or modifications. The new building has been raised upon the old ground- work : the institutions of one age have always been modelled and formed from those of the preceding, and their lineal descent has never been interrupted or disturbed.' — Palgrave, Eng. Commonwealth, i. 6. Ch - iv.] Magna Ckarta. . 99 natural leaders the barons. 1 Far from being: 'a mere Unselfishness of piece of class legislation,' extorted by the barons alone for their own special interests, it is in itself a noble and remarkable proof of the sympathy and union then exist- ing between the aristocracy and all classes of the com- monalty. At least one-third of its provisions relate to promises and guarantees on behalf of the people in general, as contradistinguished from the baronage. But one fact is specially significant. The important and comprehensive clause (60), by which the customs and liberties granted to the king's tenants-in-chief, are ex- pressly extended to every sub-tenant in the kingdom, did not, like the similar provision in the charter of Henry I., emanate from the king, but was spontaneously in- cluded by the barons themselves in the articles presented to John as a summary of their demands. 2 The eminently moderate, practical, and conservative Tne Charter a character of the barons' demands is especially noticeable, between the"^ Magna Charta was in fact a treaty of peace between the kin & and his , . , 1 ■ , , . . . , people in arms, king and his people in arms ; yet their ancient rights and liberties, the acknowledgment of which had been Its m °°- erate > 1 ' The Great Charter is the first great public act of the nation after it has realised its own identity : the consummation of the work for which un- consciously kings, prelates, and lawyers have been labouring for a century. There is not a word in it that recalls the distinctions of race and blood, or that maintains the differences of English and Norman law. It is in one view the summing up of a period of national life, in another the starting- point of a new, not less eventful, period than that which it closes.'- — Stubbs, Const. Hist. i. 532. 2 Articles of the Barons, c. 48, Select Chart, p. 286 ; Magna Charta, c. 60, infra, p. 123. ' The barons maintain and secure the rights of the whole people as against themselves as well as against their master. Clause by clause the rights of the commons are provided for as well as the rights of the nobles ; the interest of the freeholder is everywhere coupled with that of the barons and knights ; the stock of the merchant and the wainage of the villein are preserved from undue severity of amercement as well as the settled estate of the earldom or barony. The knight is protected against the compulsory exaction of his services, and the horse and cart of the free- man against the irregular requisition even of the sheriff. In every case in which the privilege of the simple freeman is not secured by the provision that primarily affects the knight or the baron, a supplementary clause is added to define and protect his right ; and the whole advantage is obtained for him by the comprehensive article [60] which closes the essential part of the Charter.'— Stubbs, Const. Hist. i. 530. IOO Magna Charta. [Ch. practical, and conservative character. It is based on the charter of Henry I. and the law of Eadward the Confessor. extorted from the king, were expressed to flow from his grant. There is nothing theoretical or revolutionary in the Charter : no declaration of abstract principles of government, but merely a practical assertion of rights as between the crown and the subject, and, as a natural corollary under a system of feudal tenures, between mesne lords and their sub-vassals. Its language is ' simple, brief, general without being abstract, and ex- pressed in terms of authority, not of argument, yet com- monly so reasonable as to carry with it the intrinsic evidence of its own fitness. It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by them, and, although they did not perceive the extensive consequences which might be derived from it, their feelings were, however uncon- sciously, elevated by its generality and grandeur.' x Sir Edward Coke has remarked that the Charter was for the most part ' declaratory of the principal grounds of the fundamental laws of England.' 2 It was in fact founded on precedent. Its bases were the Charter of Henry I., and the law as administered in the time of good King Eadward. The law of the Confessor had been renewed by William the Conqueror, and again expressly confirmed by Henry I. in his Charter. A copy of this Charter, produced to the barons by Archbishop Stephen Langton, in 12 13, formed the groundwork of their de- mands. In this way the Great Charter may be regarded as the lineal representative of the laws of King Eadward, which from this time ceased to form the popular cry for good government. 3 1 Sir J. Mackintosh, Hist. ofEng. v. I. 2 2 Inst. Proeme. 3 According to Matthew Paris, (p. 240, Select Chart. 269) Archbishop Langton, at the meeting at St. Paul's, on the 25th August, 1213, assured the barons that before absolving John from the excommunication he had compelled him to swear to restore the laws of King Eadward : ' Audistis, inquit, quomodo ipse apud Wintoniam Regem absolvi, et ipsum jurare compulerim quod leges iniquas destrueret et leges bonas, videlicet leges Eadwardi revocaret et in regno faceret ab omnibus servari. Inventa est Iv -] Magna Charta. 101 The importance of Magna Charta can hardly be ex- The key-stone aggerated. It is ' the key-stone of English liberty. All Tiber!}? * that has since been obtained is little more than as con- firmation or commentary ; and if every subsequent law were to be- swept away, there would still remain the bold features that distinguish a free from a despotic monarchy.' 1 ' It was a peculiar advantage,' remarks Sir James Mackintosh, ' that the consequences of its prin- ciples were, if we may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the spirit of liberty and reformation as the cir- cumstances of succeeding generations required, and as their character would safely bear. For almost five cen- turies it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of the case demanded.' 3 Several causes worked together to bring about the Events of John's rr • i • iiiti t rt reign which led state of affairs which compelled J ohn to grant the Great to the granting Charter. Foremost among these was the fortunate loss of the charter - of Normandy. 3 The barons, confined within the limits Separation of J _ Normandy from of England, concentrated their attention upon its affairs. England, a.d. They became thoroughly English in interests and sym- I2 °^" pathies, and united with the people against the tyranny of the king. Moreover, a great part of the baronage now consisted of the new ministerial families raised up by the policy of Henry I. and Henry II. These were far less closely connected with Normandy than the baronage of the Conquest, and their sympathies were national rather than feudal. quoque nunc carta quaedam Henrici primi regis Angliae per quam, si volueritis, libertates diu amissas poteritis ad statum pristinum revocare.' 1 Hallam, Mid. Ages, ii. 326. 2 Mackintosh, Hist. Eng. v. 1. 3 ' The talents and even the virtues of England's first six French kings were a curse to her. The follies and vices of the seventh were her salva- tion. . • • John was driven from Normandy. The Norman nobles were compelled to make their election between the island and the con- tinent. Shut up by the sea with the people whom they had hitherto oppressed and despised, they gradually came to regard England as their country,' and the English as their countrymen. The two races so long 102 Magna Ckarta. [Ch. Decay of feudalism. The barons refuse to follow the king on. foreign service. Effect of the king's personal character. Church, baronage, and people united against the king. The loss of Normandy was itself in a great measure due to the decay of Feudalism, the result of Henry II.'s policy. John, who was not altogether destitute of energy and courage, made some efforts to recover Normandy, but the barons, especially in the north of England, where the possessions of the new families chiefly lay, refused to follow the king, alleging that they were not bound to military service abroad. Intimately connected with this refusal, and with the exaction of the Charter, was the personal character of the king, which inspired utter distrust and aversion in all classes of his subjects. In disposition and character John was an oriental despot, a tyrant of the worst sort. Under Henry II. and the ministers of Richard I., the nation had become accustomed to the rule of law ; John set at defiance all laws, human and divine. 1 Supported in his tyranny by bands of foreign mercenaries, he not only taxed and fined his subjects of every degree with an open disregard of all legal restraints, 3 but was guilty of acts of cruelty rivalling those of Nero. 3 The Church, the baronage and the people, united by common oppres- sion in a common hatred of the tyrant, were compelled hostile soon found that they had common interests and common enemies. Both were alike aggrieved by the tyranny of a bad king. Both were alike indignant at the favour shown by the court to the natives of Poitou and Aquitaine. The great-grandsons of those who had fought under William and the great-grandsons of those who had fought under Harold began to draw near to each other in friendship ; and the first pledge of reconciliation was the Great Charter, won by their united exertions and framed for their common benefit.' — Macaulay, Hist. Eng. i. 15. The Channel Islands — the only Norman territory not lost — still continue attached, as a separate dependency, to the English crown. ' Quosdam absque judicio parium suorum exhaeredebat, nonnullos morte durissim& condemnabat. Uxores filiasque eorum violabat ; et ita pro lege ei erat tyrannica voluntas. ' — Annal. Waverl. 2 A.D. 1205. 'Rex cepit de comitibus, baronibus, militibus et viris religiosis pecuniam iiifinitam.'—Matt. Paris, p. 212. A.D. 1210. ' In- aestimabilem et incomparabilem fecit pecuniae numeratae exactionem, nullis viris clericis vel laicis, nulli religioni cujuscunque ordinis parcens.' — Ann. Waverl. p. 264 ; Select Chart. 266. 3 See his treatment of the wife, son, and daughter-in-law of William de Braose, and of Geoffrey of Norwich, in Matt. Paris, 230, 232, and Roger de Wendover, Chron. iii. 235. iv.] Magna Charta. 103 to make a stand not so much for constitutional govern- ment as for personal liberty. In his struggle with the papacy, arising out of the dis- Straggle puted election of an archbishop of Canterbury, John had to deal with a man of consummate ability, who had carried to the highest point, both in theory and practice, the doctrine of the paramount suzerainty of the Pope. As a matter of fact, freedom of election to ecclesiastical Ecclesiastical benefices, though strictly canonical, had never been nominally free, practically recognised by the English kings. Prior to the Norman conquest, the appointments had been made in the Witenagemot, and since then by the king in his great courts. The political power of the bishops, of the archbishop of Canterbury especially, was so great in early and mediaeval times, that it would seem to have been a state necessity that they should be nominated by the king. Although the form of election was restored by Henry I., the process, under what was subsequently termed a congd d'elire, was only nominally free. At this time, whether from the king's weakness, or from the spread of high ecclesiastical doctrines throughout Europe under the powerful and successful leadership of Innocent III., the monks of Christ Church, Canterbury, attempted Double election to assert their right of election. In the meantime the Canterbury, king directed the suffragan bishops to elect John de Grey, Bishop of Norwich. The case was carried before Innocent, who set both elections aside and himself nomi- Pope Innocent , „ , -r _... r . , . , III. sets both nated Stephen Langton, an Englishman 01 the highest elections aside character and great reputation for learning. In this g°g ^ e ° secrates proceeding the Pope distinctly infringed upon the rights Langton. of the king, of the monks of Christ Church, and of the English nation ; but fortunately for the latter, he made as great a mistake in the person of his nominee as Henry II. found he had made in nominating Becket. John determined not to submit, and refused to receive John refuses to Langton as archbishop. The Pope then (1208) placed p^ nominee the kingdom under Interdict (which suspended the as bishop. io4 Magna Charta. [Ch. The Interdict. Excommunica- tion. Deposition. John submits. 15 May, 1213. Surrenders his kingdom to the Pope. The struggle with the barons. whole religious life of the nation). The people were made to suffer in order that they might put pressure on the king. John, not proving amenable to vicarious punishment, was formally excommunicated (1209), and ultimately (in 1212) deposed. Threatened by Philip of France, whom the Pope had empowered and directed to take possession of the for- feited Kingdom of England, and feeling no reliance on the support of his alienated people, John at length gave in. From the extreme of arrogance and violence he now passed to the extreme of abject submission. He not only accepted Langton as archbishop, and promised restitution of the money extorted from the Church, but surrendered his kingdom to Pandulf, the Pope's legate, receiving it back as a fief of the Holy See, subject to the annual tribute of one thousand marks. 1 A few months afterwards, the act of submission was renewed to Nicholas, Bishop of Tusculum, with the actual per- formance of liege homage on the part of the king. 2 This submission was undoubtedly a disgrace, although not quite to the same extent as it would be now. It was however a startling falling off from the position which Henry II. had occupied, that one of his sons should do homage to the Emperor and another to the Pope. The surrender of the temporal and spiritual inde- pendence of the kingdom completed the alienation of the people from the king, whose misgovernment had brought on this national humiliation. The Pope now changed his tactics, and supported the tyranny of his vassal. The barons determined upon resistance, and the National Church, headed by Archbishop Langton, gave the weight of its influence to the patriotic side. It may be convenient briefly to notice the most im- 1 See the concession of the kingdom to the Pope, and the form of oath of fealty in Select Chart. 276. The 1000 marks were apportioned, 700 for England and 300 for Ireland. 2 Ann. Waved. 277, 278; Select Chart. 269. iv.] Magna Charta. 105 portant events which immediately led up to the grant of the charter. 1 The open quarrel with the barons began It began in July, 121 "X by their in July, 12 1 3, with the refusal of the northern nobility to refusing foreign follow John to France. While the king was vowing servlce - vengeance against his recalcitrant vassals, two important councils of the bishops and barqns were held, the first at St. Alban's, on August 4th, the second at St. Paul's, Councils at St. London, on August 25th. They were summoned and at St. Paul's ostensibly for the purpose of assessing the compensation Au S- 2 S- promised to the Church ; but the justiciar, Geoffrey Fitz-Peter, and Archbishop Langton seized tbe oppor- tunity of introducing a discussion on the King's general mis-government. The half- forgotten charter of Henry I., Charter of having been referred to generally at St. Alban's as the du e C eY ' pr °" standard of the people's liberties, was at St, Paul's produced by the archbishop, and adopted as the basis of the barons' demands. The assembly at St. Alban's has a special importance Importance of of its own, as the first historical instance of the summons §t. Alban's as of representatives to a national council. It was attended the first national representative not only by the bishops and barons, but by the repre- assembly. sentative reeve and four men from each township on the royal demesne. ' To the first representative assembly on record,' observes Professor Stubbs, 'is submitted the first draught of the reforms afterwards embodied in the charter : the action of this council is the first hesitating and tentative step towards that great act in which Church, baronage, and people made their constitutional compact with the king, and their first sensible realisation of their corporate unity and the unity of their rights and interests.' 3 During the greater part of the year 12 14, John was a.d. 1214, the absent on the Continent, whence he returned in October. tiU October™* In the meantime, the barons met at St. Edmund's, and 1 For a more detailed statement, see Blackstone, Introduction to the Charters, and Stubbs, Const. Hist. i. 524-530. 2 Const. Hist. i. 527. io6 Magna Charta. [Ch. Confederacy of the barons at St. Edmund's. They present their demands to the king at the Temple Jan. 6, 1215. John attempts to break up the combination against him ; but without success. The barons assemble in arms at Stam- ford and-march to London. The support of the Londoners decides the contest. John, deserted entered into a confederacy, binding them, if the king would not acknowledge the rights which they claimed, to withdraw their fealty and make war upon him until by a sealed charter he should confirm the laws and liberties of the people. On January 6th, 121 5, the barons in arms presented their demands to the king at the Temple, and, at his urgent request, conceded a respite until after Easter, in order that he might have time for consideration. In this interval John did all he could to break up the combination against him. He granted a separate char- ter to the Church, 1 giving freedom of election of bishops and abbots ; he ordered the sheriffs to administer the oath of allegiance and fealty to the freemen of every shire ; he assumed the Cross, in order to gain the special protection of the Church as a crusader ; "and he attempted to detach the barons by offering them special terms. But the national party continued firm and united. The barons, strengthened by numerous adhesions since the councils of St. Alban's and St. Paul's, assembled in arms at Stamford ; and when the stipulated time had expired without an answer from the king, marched, under the leadership of Robert Fitz- Walter, ' Marshal of the army of God and of the Holy Church in England,' to Brackley, in Northamptonshire. Here the king sent to ask their demands, but when these were submitted to him, peremptorily refused to grant them. The barons now continued their march to London, which they entered on the 24th May, amidst the acclamations of the citizens. The support of the Londoners seems to have' decided the contest. The small, but by no means unimportant section of the baronage which had hitherto remained faithful to the king, now went over to the confederacy, and with them most of the officials of the Curia Regis and Exchequer and even of the king's household. Deserted by all but a few personal adherents, chiefly 1 First granted 21st Nov. 1214; re-issued 21st Jan. following. iv.] Magna Charta. 107 of foreign extraction, and utterly incapable of further b y a11 but a few y jt personal resistance, John accepted the articles of the barons which adherents, grants were embodied in the Great Charter, at Runnymede, on the Charter - the 15th of June, 12 15. Analysis -and Summary of the Charter. Magna Charta contains, in addition to the preamble, sixty-three clauses inserted without much regard to orderly arrangement. Its chief provisions may be con- veniently grouped and summarized as follows : Commencing with the declaration that the Church of Clause r. ° . Liberties of the England shall be free (' quod Anglicana ecclesia libera church, sit '), with all her rights and liberties inviolate, and expressly confirming the freedom of election which he had already granted by separate charter, John grants to all the freemen of the kingdom (' words,' remarks Sir Edward Coke, ' which extend also to villeins, for they are accounted free against all men saving against the lords '), the underwritten liberties : The following copy of John's charter in the original Latin is extracted from Professor Stubbs' ' Select Char- ters,' pp. 288-297. The clauses and sentences omitted in Henry III.'s re-issues have been placed within brackets. [Johannnes Dei gratia Rex Angliae, Dominus Hy- berniae, Dux Normanniae et Aquitanniae, Comes Ande- gaviae, archiepiscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariisj vicecomitibus, prae- positis, ministris et omnibus ballivis et fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute animae nostrae et omnium antecessorum et haeredum nostrorum, ad honorem Dei et exaltationem sanctae ecclesiae, et emendationem regni nostri, per consilium venerabilium patrum nostrorum, Stephani Cantuariensis archiepiscopi totius Angliae primatis et sanctae Romanae ecclesiae cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Lon- doniensis, Petri Wintoniensis, Joscelini Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri Wygornensis, Willelmi Coventrensis, et Benedicti Roffensis episcoporum ; magistri Pandulfi domini papae subdiaconi et familiaris, fratris Eymerici magistri militiae iempli in Anglia; et 108 Magna Charta. [Ch. /. — Feudal Obligations. Reliefs. 2, 3. The heir (if of age) shall pay only ' the ancient relief — viz., in the case of an earl or baron, 100/. ; of a knight, 100s. ; of one holding less than a knight's fee, less in proportion. A minor, who is in ward, shall have his inheritance, on coming of age, without relief or fine. By the charter of Henry I. reliefs were to be 'justa et legitinia.' The sum is now defined. Wardships. 4, 5- Guardians shall take only reasonable fruits and profits, without destruction or waste ; and shall keep up the estate in proper condition during the wardship. By Henry I.'s charter, the widow or next of kin was to be the guardian. The Assize of Northampton (1176), directed that the lord of the fee should have the ward- ship. Magna Charta remedies the abuses of wardship. Marriage. 6. Heirs shall be married without disparagement, their near blood-relations having notice beforehand. nobilium virorum Willelmi Mariscalli comitis Penbrok, Willelmi comitis Saresberiae, Willelmi comitis Wdrenniae, Willelmi comitis Arundelliae, Alani de Galweya consta- bularii Scottiae, Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo senescalli Pictaviae, Hugonis de Nevilla, Mathei filii Hereberti, Thomae Basset, Alani Basset, Philippi de Albiniaco, Roberti de Roppelay, Johannis Mariscalli, Johannis filii Hugonis, et aliorum fidelium nostrorum.] 1. In primis concessisse Deo et hac praesenti carta nostra confirmasse, pro nobis et haeredibus nostris in perpetuum, quod Anglicana ecclesia libera sit, et habeat jura sua integra, et liber- tates suas illaesas ; [et ita volumus observari ; quod apparet ex eo quod libertatem electionum, quae maxima et magis neces- saria reputatur ecclesiae Anglicanae, mera et spontanea volun- tate, ante discordiam inter nos et barones nostros motam concessimus et carta nostra confirmavimus, et earn optinuimus a domino papa Innocentio tertio confirmari ; quam et nos ob- servabimus et ab haeredibus nostris in perpetuum bona fide volumus observari.] Concessimus etiam omnibus liberis homi- nibus regni nostri, pro nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haere- dibus suis, de nobis et haeredibus nostris; IV -3 Magna Charta. 109 Henry I.'s charter bound the king to consult his baronage as to the marriage of heirs. In the Articles of the Barons heirs were to be married 'per consilium propin- quorum de consanguinitate sua.' In the charter itself this is softened down to barely giving notice to the relations ; and even this requirement was omitted in Henry III.'s re-issues. 7, 8. A widow shall receive freely, within forty days of Widows. her husband's death, her dowry and inheritance ; and shall have her quarantine (forty days' residence) in the family mansion. She shall not be forced to re-marry ; but if she wish to do so, must obtain the lord's consent. The king and other feudal lords sometimes forced the widows of their tenants to re-marry in order to gain the fine payable for consenting to the marriage. This abuse is here forbidden. 15. The king shall not empower mesne lords to exact Aids of mesne other than the three ordinary aids — to ransom the lord's or ' 2. Si quis comitum vel baronum nostrorum, sive aliorum tenentium de nobis in capite per servitium militare, mortuus fuerit, et cum decesserit haeres suus plenae aetatis fuerit et relevium debeat, habeat haereditatem suam per antiquum re- levium ; scilicet haeres vel haeredes comitis, de baronia comitis integra per centum libras ; haeres vel haeredes baronis, de baronia integra per centum libras ; haeres vel haeredes militis, de feodo militis integro, per centum solidos ad plus ; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum. 3. Si autem haeres alicujus talium fuerit infra aetatem et fuerit in custodia, cum ad aetatem pervenerit, habeat haere- ditatem suam sine relevio et sine fine. 4. Custos terrae hujusmodi haeredis qui infra aetatem fuerit, non capiat de terra haeredis nisi rationabiles exitus, et rationa- biles consuetudines, et rationabilia servitia, et hoc sine de- structione et vasto hominum vel rerum ; et si nos commiserimus custodiam alicujus talis terrae vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis homihibus de feodo illo, qui de exitibus. respondeant nobis vel ei cui eos assignaverimus ; et si dederimus vel vendiderimus alicui cus- no Magna Charta. [Ch. person, to knight his eldest son, and once to marry his eldest daughter, — and these of reasonable amount. Services. ig. No one shall be compelled to render more than the due service for a knight's fee or other free tenement. Castle-guard. 29. No knight shall be compelled to pay for castle- guard, if he be willing to perform the service in person, or (on reasonable excuse) by a proper deputy ; and whilst on service in the army, he shall be free from the duty of castle-guard. Lands of jelms. 32. The king shall not hold the lands of convicted X -%, felons except for a year and a day, at the expiration of which time the lands shall be given up to the lords of the fees. By the common law, the lands of a person attainted of treason were forfeited to the crown ; but on attainder of petit-treason or felony, to the immediate lord, subject, however, in this case, to the king's right to hold them for a year and a day. (2 Hawkins, Pleas of the Crown, c. 49, s. 1, 2.). By the 54th George III. c. 145, the for- todiam alicujus talis terrae, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis re- spondeat sicut praedictum est. 5. Custos autem, quamdiu custodiam terrae habuerit, sus- tentet domos, parcos, vivaria, stagna, molendina, et cetera ad terram illam pertinentia, de exitibus terrae ejusdem; et reddat haeredi, cum ad plenam aetatem pervenerit, terram suam totam instauratam de carrucis et wainnagiis secundum quod tempus wainnagii exiget et exitus terrae rationabiliter poterunt sustinere. 6. Haeredes maritentur absque disparagatione, [ita tamen quod, anteqUam contrahatur matrimonium, ostendaturpropinquis de consanguinitate ipsius haeredis.] 7. Vidua post mortem mariti sui statim et sine difficultate habeat maritagium et haereditatem suam, nee aliquid det pro dote sua, vel pro maritagio suo, vel haeredi tate sua quam haereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per quadraginta dies post mortem ipsius infra quos assignetur ei dos sua. _ 8. Nulla vidua distringatur ad se maritandum dum voluerit vivere sine marito, ita tamen quod securitatem faciat quod se iv.] Magna Charta. in feiture was limited, (except in the cases of treason, petit- treason, or murder,) to the life interest of the offender : but the personal property of all felons is still forfeited to the crown. In former times attainder also worked ' corrup- tion of blood,' the effect of which was to prevent any inheritance being claimed from or through the attainted person. This harsh law has now been abrogated by the last mentioned statute, and the 3rd & 4th William IV. c. 106. s. 10. 37. The king shall not have the wardship of land Wardship of held in chivalry of a mesne lord, by reason of the sub- lands h f do f J ' J mesne lords. tenant also holding other land of the king, either in fee- farm, socage, burgage, or petit-serjeanty ; nor the ward- ship of such fee-farm land unless it owe military service. For an explanation of these feudal tenures see supra, pp. 58—65. 43. The tenants of baronies escheated to the Crown Escheated shall only pay the same relief and perform the same services as if the lands were still held of a mesne lord. non maritabit sine assensu nostra, si de nobis tenuerit, vel sine assensu domini sui de quo tenuerit, si de alio tenuerit. 9. Nee nos nee ballivi nostri seisiemus terrain aliquam nee redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nee pleggii ipsius debitoris distrin- gantur quamdiu ipse capitalis debitor sufficit ad solutionem debiti ; et si capitalis debitor defecerit in solutione debiti, non habens unde solvat, plegii respondeant de debito ; et, si voluerint, habeant terras et redditus debitoris donee sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem pleggios. [10. Si quis mutuo ceperit aliquid a Judaeis, plus vel minus, et moriatur antequam debitum ilium solvatur, debitum non usuret quamdiu haeres fuerit infra aetatem, de quocumque teneat ; et si debitum illud incident in manus nostras, nos non capiemus nisi catallum contentum in carta.] [n. Et si quis moriatur, et debitum debeat Judaeis, uxor ejus habeat dotem suam, et nihil reddat de debito illo ; et si liberi ipsius defuncti qui fuerint infra aetatem remanserint, provideantur eis necessaria secundum tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo servitio domi- 112 Magna Charta. [Ch. Abbey of private foundation. Common Pleas. Assizes. 46. Barons who have founded abbeys shall have the custody of them when vacant. The above remedial provisions fully disclose the vexa- tious and onerous nature of the exactions of the feudal monarchy. II. — Administration of Law and Justice. 17. Common Pleas shall not follow the king's court, but be held in some certain place. The intent of this clause was that suitors might always have a fixed and settled court to resort to, instead of being subjected, as formerly, to the great expense and incon- venience of following the king in his progresses through the kingdom. 18, 19. The recognitions of Novel disseisin, Mort d\ancester, and Darrein presentment shall only be held in the court of the county where the lands in question lie. The king, or in his absence the chief justice, shall norum ; simili modo fiat de debitis quae debentur aliis quam Judaeis.] [12. Nullum scutagium vel auxilium ponatur in regno nostro nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem facien- dum, et ad filiam nostram primogenitam semel maritandam, et ad haec non fiat nisi rationabile auxilium : simili modo fiat de auxiliis de civitate Londoniarum.] 13. Et civitas Londoniarum habeat omnes antiquas libertates et liberas consuetudines suas, [tam per terras quam per aquas.] Praeterea volumus et concedimus quod omnes aliae civitates, et burgi, et villae, et portus, habeant omnes libertates et liberas consuetudines suas. [14. Et ad habendum commune consilium regni, de auxilio assidendo aliter quam in tribus casibus praedictis, vel de scutagio assidendo, summoneri faciemus archiepiscopos, epis- copos, abbates, comites, et majores barones, sigillatim per litteras nostras ; et praeterea faciemus summoneri in generali, per vicecomites et ballivos nostras, omnes illos qui de nobis tenent in capite ; ad certum diem,'scilicet ad terminum quadra- ginta dierum ad minus, et ad certum locum ; et in omnibus litteris illius summonitionis causam summonitionis exprimemus ; et sic facta summonitione negotium ad diem assignatum pro- iv.] Magna Charta. 113 send two justices into each county four times a year, who, with four knights to be chosen by the county court, shall hold such assizes. If all the matters cannot be determined on the day appointed for each county, a sufficient number of knights and freeholders present at the assizes shall stay to decide them. 20. A freeman shall only be amerced, for a small Amercements.^ offence after the manner of the offence, for a great crime according to the heinousness of it, saving to him his contenement ; and, after the same manner, a mer- chant saving his merchandise, and a villein saving his wainage ; the amercements in all cases to be assessed by the oath of honest men of the neighbourhood. 21. Earls and barons shall not be amerced but by their peers, and according to the degree of the offence. 22. No clerk shall be amerced for his lay tenement but according t,o the proportions aforesaid, and not according to the value of his ecclesiastical benefice. cedat secundum consilium illorum qui praesentes fuerint, quamvis non omnes summoniti venerint] [15. Nos non concedemus de cetero alicui quod capiat auxilium de liberis hominibus suis, nisi ad corpus suum redi- mendum et ad faciendum primogenitum filium suum militem, et ad primogenitam filiam suam semel maritandam, et ad haec non fiat nisi rationabile auxilium.] 16. Nullus distringatur ad faciendum majus servitium de feodo militis, nee de alio libero tenemento, quam inde de- betur. 17. Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo. 18. Recognitiones de nova dissaisina, de morte antecessoris, et de ultima praesentatione, non capiantur nisi in suis comi- tatibus et hoc modo; nos, vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciaries per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas prae- dictas. 19. Et si in die comitatus assisae praedictae capi nonpossint, tot milites et libere tenentes remaneant de illis qui interfuerint Crown, 1 1 4 Magna Charta. [Ch. These clauses were primarily intended as a safeguard against the tyrannical extortions under the name of amercements and fines, with which John had oppressed his people. At the same time they inculcate the general principle that punishments ought to be proportioned to the offence, and assert the right of all men, from the baron to the villein, to the 'Judicium Parium.' The term ' amercement ' is derived from the French ' a merci,' and signified the pecuniary mulct laid upon an individual who had offended, and therefore lay at the mercy of, the king. ' Contenement ' signifies that which is indispensable to a person's rank or occupation, as the armour of a soldier, the books of a scholar, the wagon or wain of a husbandman. At the present day the tools (contenement) of a workman cannot be taken on a distress for rent. Pleas of the 24. No sheriff, constable, coroner, or bailiff of the king shall hold pleas of the Crown. This clause is important as marking an era in the history of our criminal judicature. It secured the trial of all serious crimes before the king's justices, men of learning and experience in the law. Its practical effect was to take comitatui die illo, per quos possint judicia sufficienter fieri, secundum quod negotium fuerit majus vel minus. 20. Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti ; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo salva mercandisa sua ; et villanus eodem modo amercietur salvo wainnagio suo, si inciderint in miseri- cordiam nostram ; et nulla praedictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de vis- neto. 21. Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti. 22. Nullus clericus amercietur [de laico tenemento suo], nisi secundum modum aliorum praedictorum, et non secundum quantitatem beneficii sui ecclesiastici. 23. Nee villa nee homo distringatur facere pontes ad riparias, nisi qui ab antiquo et de jure facere debent. 24. Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri, teneant placita coronae nostrae. [25. Omnes comitatus, hundredi, wapentakii, et threthingii, sint ad antiquas firmas absque ullo incremento, exceptis do- minicis maneriis nostris.] 26. Si aliquis tenens de nobis laicum feodum moriatur, et iv.] Magna Charta. n 5 * away from the County Court and the other inferior local tribunals, the jurisdiction of nearly all criminal matters. This important judicial reform was not a sudden act, but the result of a gradual process. In the ' Assize of Clarendon,' a.d. n 66, the itinerant justices and the sheriffs are directed to share the office of judge between them. 1 A further step was taken in 1194, when it was ordered that no sheriff should be a justice in his own county. 2 Magna Charta deprived sheriffs and other local officers of all jurisdiction over pleas of the Crown. ' Pleas of the Crown' are criminal prosecutions carried on in the name of the sovereign, ' who is supposed by the law,' remarks Black- stone, ' to be the person injured by every infraction of the public rights of the community.' The word 'constables ' meant castellans, or constables of castles, of which, in the time of Henry II., there were upwards of eleven hundred in England. These constables possessed considerable power, and within the precincts of the manors upon which their castles were built, held trials of criminal charges, as the sheriffs did within their respective counties. In manors not having a castle, the criminal and civil jurisdic- tion of the lords was exercised by the stewards or bailiffs. The convenience of secure prisons afforded by these vicecomes vel ballivus noster ostendat litteras nostras patentes de summonitione nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare et inbreviare catalla defuncti inventa in laico feodo, ad valentiam illius debiti, per visum legalium hominum, ita tamen quod nihil inde amoveatur, donee persolvatur nobis debitum quod clarum fuerit ; et residuum relinquatur executoribus ad faciendum testamentum defuncti ; et si nihil nobis debeatur ab ipso, omnia catalla cedant defuncto, salvis uxori ipsius et pueris rationabilibus partibus suis. [27. Si aliquis liber homo intestatus decesserit, catalla sua per manus propinquorum parentum et amicorum suorum, per visum ecclesiae distribuantur, salvis unicuique debitis quae defunctus ei debebat] 28. Nullus constabularius, vel alius ballivus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios aut respectum inde habere possit de voluntate venditoris. 29. Nullus constabularius distringat aliquem militem ad dandum denarios pro custodia castri, si facere voluerit custo- 1 Assize of Clarendon, t. 1, Select Chart. 137. 2 Forma procedendi in placitis Coronae Regis, c. 20, Select Chart. 252. 1 1 6 Magna Charta. [Ch. private castles caused prisoners charged with crimes in the counties to be frequently committed to the custody of the constables, who too often abused their trust. Nearly two hundred years after the Great Charter, a statute (5th Henry IV. c. 10) directed justices of the peace to imprison in the common gaol, 'because that divers constables of castles within the realm of England be assigned to be justices of the peace by commission from our lord the king, and by colour of the said commission they take people to whom they bear ill-will and imprison them within the said castles till they have made fine and ransom with the said constables for their deliverance.' The depriving of such men of the power to try prisoners was a great boon to the people. Writ of Praecipe 34. The writ called Praecipe shall not in future be m capite. issued so as to cause a freeman to lose his court. This seems to be a concession to the old feudal party. Its object was to protect the local jurisdiction of the courts baron. The tenant of a mesne lord, if disseised of his land, was obliged to sue for its recovery, in the first instance, in the court-baron of his immediate lord. The diam illam in propria persona sua, vel per alium probum hominem, si ipse earn facere non possit propter rationabilem causam ; et si nos duxerimus vel miserimus eum in exercitum, erit quietus de custodia, secundum quantitatem temporis quo per nos fuerit in exercitu. 30. Nullus vicecomes, vel ballivus^noster, vel aliquis alius, capiat equos vel caretas alicujus liberi hominis pro cariagio faciendo, nisi de voluntate ipsius liberi hominis. 31. Nee nos nee ballivi nostri capiemus alienum boscum ad castra, vel alia agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit. 32. Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terrae dominis feodorum. 33. Omnes kydelli de cetero deponantur penitus de Thamisia et de Medewaye, et per totam Angliam, nisi per costeram maris. 34. Breve quod vocatur Praecipe de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam. 35. Una mensura vini sit per totum regnum nostrum, et una mensura cervisiae, et una mensura bladi. scilicet quarterium Londoniense, et una latitudo pannorum tinctorum, et russet- iv.] Magna Charta. 117 writ of praecipe in capite was the process , by which such causes were called up into the king's court. 36. The writ of inquest of life or limb shall be given Writ Deodio gratis, and not denied. a atm - The object of this clause was to prevent the long imprisonment of a person charged with a crime without examining into his guilt or innocence. The writ referred to was that de odio et atia (analogous to that of Habeas Corpus), and constituted one of the greatest securities of personal liberty. It was the only means by which a person imprisoned on a charge of homicide could procure the privilege, in certain circumstances, of being bailed. 38. No bailiff for the future shall put anyone to his Wager oj law. law upon his own bare saying, without credible witnesses to prove it. The meaning of this clause has been disputed. The Mirror of Justice (a compilation of not later date than the reign of Edward I.) explains it, ' that no justice, no minister of the king, nor other officer nor bailiff, have torum, et halbergettorum, scilicet duae ulnae infra listas ; de ponderibus autem sit ut de mensuris. 36. Nihil detur vel capiatur de cetero pro brevi inquisitionis de vita vel membris, sed gratis concedatur et non negetur. 37. Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium, et de alio terram teneat per servitium militare, nos non habemus custodiam haeredis nee terrae suae quae est de feodo alterius, occasione illius feodi- firmae, vel sokagii, vel burgagii; nee habebimus custodiam illius feodifirmae, vel sokagii, vel burgagii, nisi ipsa feodifirma debeat servitium militare. Nos non habebimus custodiam haeredis vel terrae alicujus, quam tenet de alio per servitium militare, occasione alicujus parvae sergenteriae quam tenet de nobis per servitium reddendi nobis cultellos, vel sagittas, vel hujusmodi. 38. Nullus ballivus ponat de cetero aliquem ad legem sim- plici loquela sua, sine testibus fidelibus ad hoc inductis. 39. Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae, i [ 8 Magna Charta. [Ch. power to make a freeman make oath without the king's command, nor receive any plaint without witnesses present, who testify the plaint to be true.' Wager of law was a relic of the old English trial by compurgators. Before a man could be put to his law or his oath, which meant the same thing, the accuser had to produce his witnesses, a practice which became obsolete in the time of Edward III., when the names of the fictitious and but lately defunct John Doe and Richard Roe, the common pledgers of prosecution,- made their appearance. (See Finlason's Reeves' Hist, of the Common Law, i. 283.) (36 & 37 Vict. c. 66), all the courts, both common law and chancery, have been again united and consoli- dated into one supreme court. The system of itinerant justices, or justices in eyre Itinerant justices ( = ?'« itinere), was not invented by Henry II., but its He^li? by establishment as an organized and permanent institution 1 The three-fold meaning of the words Curia Regis should be borne in mind. They were used to denote : (1). The Commune Concilium, or Common Council of the Realm, com- posed of the king's vassals : (2). The Ordinarium Concilium, the select council for judicial as well as administrative purposes : (3). The Court of Kings Bench, springing from the limited tribunal separated from the last by Henry II. in 1178, and soon after acquiring exclusively the denomination Curia Regis. — Hall am, Midd. Ages, ii. 425. 5 From a very early period every kind of contrivance was resorted to by the King's Bench, Common Pleas, and Exchequer to enlarge the jurisdiction of their respective courts. The King's Bench always had cognizance of all personal actions where the defendant was already under the custody of-t-hat court. By a legal fiction persons not actually in custody of the marshal of the court were assumed so to be, in order to bring them within its jurisdiction ; and by a similar legal fiction the Court of Exchequer, though by its constitution precluded from hearing common pleas, gained cognizance of them by allowing the plaintiff to allege that he was a debtor to the Crown and then to invoke the aid of the court to recover from the defendant what would enable him to pay his debt to the Crown. So long as the judges received profit from fees, they had a direct interest in drawing business each to his own court. The statutes 2 Will. IV. c. 39, and 2 Vict. c. no, at length put an end to these fictions, and estab- lished one form of process — the writ of summons— for all the courts.' — Spence, Eq. Juris, i. 14. 3 The Court of Exchequer Chamber exists under two forms : (1). As a court of mere debate, into which causes of great weight and difficulty may be adjourned, before judgment is given upon them in the court below (as was done in Calvin's case, 2 St. Tr. 559). The court is then composed of all the judges of the three superior courts, and sometimes the lord chancellor also. 152 Administrative System under the [Ch. is due to him. As early as the reign of Henry I., some of the justices of the Curia Regis were occasionally appointed by the king to go from county to county to collect the revenue and hold pleas, civil and criminal. 1 Their chief duty, originally, was to collect the revenue, determine disputes as to the amounts payable, and detect and punish frauds on the part of the sheriffs and other fiscal officers. 2 But they also supplied the, place both of the old English royal progresses, during which the kings had been wont to hear and determine complaints of failure of justice in the lower tribunals; and of the annual courts which the Conqueror and his two sons held ' de more' at Gloucester, Winchester, and Westminster, at the three great festivals of the year. During the anarchy of Stephen's reign the provincial visitations had ceased ; (2). As a Court of Error : (a). First created by statute 31 Edw. III. c. 12, to determine errors from the common law side of the Court of Ex- chequer. Composed of the Lord Chancellor, and Lord Treasurer, and the justices of the King's Bench and Common Pleas. (b). A second Court of Exchequer Chamber was erected by statute 27 Eliz. c. 8, to determine writs of error from the King's Bench. Composed of the justices of the Common Pleas and the barons of the Exchequer. Both (a) and (b) are now abolished. (c. ) The court was reconstituted by 1 1 Geo. IV. and 1 Will. IV. t. 70, a. 8. Judgments of each of the superior courts of common law (upon proceedings in error in law being instituted) are subject to revision by the judges of the other two courts sitting collectively as a court of error in the Exchequer Chamber. See Stephen, Commentaries, iii. 428. When the ' Supreme Court of Judicature Act, 1873,' comes into operation, the jurisdiction of the court of Exchequer Chamber will be merged in that of the new Court of Appeal. 1 Hardy, Introduction to Close Rolls, p. xxiv. n. 2 The itinerant justices long continued to be employed as the king's agents for squeezing money out of the people. In a great council convened by Henry III. in 1242, the baronage complained : ' Non cessaverunt justi- tiarii itinerantes itinerare per omnes partes Angliae tam de placitis forestae quam de omnibus aliis placitis, ita quod omnes comitatus Angliae et omnia hundreda, civitates et burgi, et fere omnes villae graviter amerciantur ; unde solummodo de illoitinere habet dominus rex vel habere debet maxi- mam summum pecuniae, si persolvatur et bene colligatur. Unde bene dicunt quod per ilia amerciamenta et per alia auxilia prius data, omnes de regno ita j;ravantur et depauperantur quod parum aut nihil habent in bonis. ' —Matt. Paris, 582. v.] Norman and Plantagenet Kings. 153 but Henry II. restored the practice. In 1176, at the Regular circuits ., , r ,..,,, 1 . 1 formed, A.D. great council of Northampton, he divided the kingdom 1176. for fiscal and judicial purposes into six circuits, to each of which three itinerant judges were assigned. 1 By the Magna Charta of John (c. 1 8) two justices were to be sent into each county four times a year, to take assizes of mort d'ancester, novel disseisin, and darrein present- ment ; but in the second re-issue of the charter by Henry III., in 1217, this was altered (c. 13) to one annual visitation. Shortly afterwards the justices ap- pear, for general purposes, to have made their circuit round the kingdom once in seven years only ; a practice which was continued till the reign of Edward I. By the statute of Westminster II. (13 Edw. I. c. 30), Judges of Assize • , r a • , -»T. • t. ■ , , , and Nisl Pnas - judges of Assize and Nisi rnus were ordered to be assigned out .of the king's sworn justices, associating to themselves two discreet knights of each county, to try matters of fact at the courts of assize and nisi prius. These justices of assize superseded the old justices in eyre, and have continued to the present day. 2 From their first institution the itinerant justices were accustomed on circuit to sit in the full county court, which was summoned to meet them. Their provincial visitations thus form ' the link between the Curia Regis and the Shire-moot, between royal and popular justice, between the old system and the new.' 3 This direct con- nexion between the court of the king and the court of the shire had most important constitutional effects, here- after to be noticed, on the growth of the national repre- 1 Benedict. Abbas, i. 107 ; Dialog, de Scacc. ii. c. 2. 2 Provincial justice has always been administered under a, variety of distinct authorizations, corresponding to the several commissions of the judges. Blackstone (iii. 60) describes the judges of assize as sitting under five commissions : (1) of the peace; (2) of oyer and terminer; (3) of gaol delivery; (4) of assize ; (5) of nisi prius. The recent abolition of actions of assize and otherreal actions has, however, thrown the commission of assize, as distinguished from that of nisi prius, out of force, so that there are now only four commissions. 3 Stubbs, Const. Hist. i. 605. 154 Administrative System under the [Ch. sentative assembly ; and to the same cause is also mainly due both the uniformity of our common law, and the repression within due limits of the local feudal jurisdictions. 1 Trial by Jury. To Henry II. 2 must also be ascribed, in addition to his other legal reforms, the wide expansion and regular establishment of the system of Recognition by Sworn Inquest, from which our modern trial by jury is lineally descended. Its origin. The origin of this ' most democratical of juridical institutions,' the cherished bulwark of constitutional liberty, has been the subject of much learned discussion, and of many conflicting theories. 3 Mr. Forsyth, the learned author of the ' History of Trial by Jury,' believes that ' it is capable almost of demonstration that the English jury is of indigenous growth, and was not copied or borrowed from any of the tribunals that existed on the Continent.' 4 Professor Stubbs, adopting in the main the theory of Palgrave, corrected and adjusted by the 1 The shire-moot summoned to meet the itinerant judges was a much more complete representation of the county than the ordinary county court, which at some period between the reigns of Henry I. and Henry III. began to be held once a month, like the court of the hundred, instead of only twice a year as formerly. ' The great franchises, liberties, and manors which by their tenure were exempted from shire-moot and hundred were, before these visitors, on equal terms with the freeholders of the geldable, as the portion of the county was called which had not fallen into the franchises. Not even the tenants of a great escheat in the royal hands escaped the obligation to attend their visitation. ... A writ of Henry III., issued in 1231, directs the summons to the county court to be addressed to "archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders ; four men of each township, and twelve burghers of each borough, to meet the justices."' — Stubbs, Const. Hist. p. 607. 2 ' The acts of the counsellor are frequently ascribed to the sovereign ; but the encomiast and the detractor both agree in ascribing the "assizes" enacted by Henry to the bent of his own mind. ' — Palgrave, Eng. Com. i. 243. 3 See Forsyth, Hist, of Trial by Jury; Bourguignon, Memoire sur le Jury, (who despairingly says, ' son origine se perd dans la nuit des temps ' ) ; Palgrave, English Commonwealth ; Turner, Hist. Anglo-Saxons; Reeves, Hist. Eng. Law (by Finlason) ; Meyer, Orig. et Progres des Inst. Judic. ii. c. II ; Gneist, Self-Government, i. 74, sq. ; K. Maurer in the Kritische .Ueberschau, v. 180, 332, sq. ; Brunner, Entstehung der Schwurgerichte ; Stubbs, Const. Hist. i. 395, 608-623. 4 Forsyth, Trial by Jury, p. 13. v.] Norman and Plantagenet Kings. 155 recent work of Dr. Brunner, says : ' The truth seems to be that the inquest by sworn recognitors is directly derived from the Frank Capitularies, into which it may have been adopted from the fiscal regulations of the Theodosian Code, and thus own some distant relationship with the Roman jurisprudence.' 1 Two points seem to be clear: (1.) The system of # inquest" by sworn recognitors, even in its rudest and simplest form, appears for the first time in England subsequently to the Norman Conquest. (2.) Whether the inquisitorial system be regarded as a modification of the old English judicial institutions, or, with far greater probability, as an importation from Normandy, — where, as in the rest of France, it had subsisted from the Karo- lingian times, — it was in England, from the first, worked in close combination with the previously existing procedure of the shire-moot ; and in its developed form of ' Trial by J ur y' is distinctly and exclusively an English institution. 3 As regards criminal trials, we do indeed meet in an The twelve ordinance of King ^Ethelred II. (a.D. 978-1016) with h „ e n g d n r s j n ^ t a species of jury of accusation clearly analogous to our a jury of present- Grand jury, and possibly its direct progenitor. In the JJ2" ° cnml " gemot of every hundred or wapentake the twelve senior thegns, with the reeve, were directed to go apart and accuse, or as we should say, present, on oath, all whom they should believe to have committed any crime. 3 The 1 Const. Hist. i. 612. 2 ~* The continuance of the system in France from the Karolingian times and through the Norman period is proved by Dr. Brunner in his work (Entstehung der Schwurgerichte). The most curious phaenomena in con- nexion with it is the fact that it was only on English soil that it gained much development, the Norman lawyers seeing themselves rapidly out- stripped by those of England, and the institution withering away in the rest of France until it became extinct' — Ibid. i. 614. 3 ' This is the ordinance which King jEthelred and his Witan ordained as " frith-bot " for the whole nation, at Woodstock, in the land of the Mercians, according to the law of the English.' 'III. cap. 3. . . . And that a gemot be held in every wapentake ; and the xii senior thegns go out, and the reeve with them, and swear on the relic which is given them in hand, that they will accuse no innocent man, nor conceal any guilty one. ' —Select Chart. 72. 156 Administrative System under the [Ch. twelve thegns seem to have performed the part of public prosecutors ; but the fact of the guilt or innocence of the accused person had still to be determined by compurga- tion, or the ordeal. This primitive grand jury probably continued in use, after the Conquest, until its reconstitu- tion by Henry II., 1 and thus the criminal jury, although, doubtless, largely influenced in its later development by the co-existence of the inquest by jury in civil matters, possesses strong claims to a purely indigenous origin. Growth of the For at least a hundred years after the Conquest the cases 1 " C1Vd ancient mode of trial by compurgation, ordeal, and witness continued in general use, concurrently with the wager of battle, a Norman innovation detested by the English, and at length gladly laid aside by the Normans themselves. It was only gradually that the advantages of the principle of recognition by jury in its application to judicial procedure became impressed upon the minds of both rulers and ruled. At first the sworn inquest seems to have been chiefly applied to matters not judicial, such as the laws of King Eadward, 3 the Domesday survey, 3 the assessment of feudal taxation under William Rufus and Henry I., and the customs of the church of York, which the latter monarch, in 1 106, directed five commissioners to ascertain by the oath of twelve of the citizens. 4 There are, however, equally early instances of strictly legal matters being decided by the recognition on oath of a certain number of ' probi et legales homines ' selected from the men of the county to represent the neighbour- 1 Chron. Ang. Sax. ad. ann. 1124. . . . 'After S. Andrew's mass, before Christmas, Ralph Basset [justiciar] and the king's thegns held a ' gewitenemot ' at Hundehoge in Leicestershire, and there hanged so many thieves as never were before, that was in that little while, altogether four and forty men ; and six men were deprived of their eyes and emasculated. ' The Pipe Roll of 31 Hen. I. contains numerous references to the ' judices ' and 'juratores' of the shire and hundred courts. Under one or the other of these names the jury of presentment may probably have been indicated. 2 Supra, p. 67. 3 Supra, p. 56. * Thoroton, Nottinghamshire, iii. 77, apud Stubbs, Const. Hist. i. 611. v.] Norman and Plantagenet Kings. 157 hood and testify to facts of which they had special knowledge. In a suit as to the lands of the Church of Ely, the Conqueror directed his justiciars to assemble the shire-moot and ascertain the truth by the oath of a number of English to be chosen for their knowledge of the state of the lands in the time of King Eadward. 1 A like proceeding is directed with reference to the rights of the monks of Ramsey in an extant writ of William Rufus directed to the Sheriff of Northamptonshire. 3 One of the most marked of these early instances of the probi vicini being summoned as a jury for judicial purposes occurs in the reign of Henry I. A writ was addressed in the name of William the -Etheling to the Sheriff of Kent, requiring him to summon ' Hamo the son of Vital, and the probi vicini of Sandwich whom Hamo shall name, to say the truth ' respecting the free- dom from toll of a vessel belonging to the Abbot of St. Augustine's, which seems to have been seized for non- payment of dues. By a subsequent writ the sheriff was directed to restore the vessel to the abbot, according to the verdict or recognition of the goodmen of the county ('sicut recognitum fuit per probos homines comitatus'). 3 Henry II. applied recognition by jury to every description of business, fiscal and legal, and henceforth down to the reign of Edward I. it was, in particular, the most usual machinery employed for the assessment of taxation* The use of a jury, both for criminal presentment and civil inquest, is mentioned for the first time in our Earliest mention of a jury in statute law. 1 ' Eligantur plures de illis Anglis qui sciunt quomodo terrae jacebant praefatae ecclesiae die qua rex Eadwardus obiit, et quod inde dixerint ibidem jurando testentur.' — Liber Eliensis, i. 256, apud Stubbs, Const. Hist. i. 395. 2 Palgrave, Eng. Com. clxxix. 3 Ibid. ; Forsyth, Trial by Jury, 104. 4 The variations in the mode of assessing taxation during this period and the increasing use of the jury for that purpose, are traced by Professor Stubbs, Select Chart, pp. 147, 251, 275, 342, 345, 351, 357. By the Great Charter of John, sec. 20, amercements were only to be imposed 'per sacramentum proborum hominum de visneto.' 158 Administrative System under the [Ch. Constitution of Clarendon, A.D. 1 164. Henry II.'s Grand Assize Procedure. statute law in the Constitutions of Clarendon. The way in which the jury is therein referred to seems to imply that it had already grown into general use and favour. When no one could be found to accuse a powerful layman amenable to the bishop's jurisdiction, the sheriff, at the bishop's request, was directed to ' swear twelve lawful men of the neighbourhood to tell the truth, according to their conscience,' and the same statute declared that ' by the recognition of twelve lawful men,' the chief justice should decide all disputes as to the lay or clerical tenure of land. 1 It was in the Grand Assize 2 (the exact date of which is unknown) that the principle of recognition by jury, having gradually grown into familiar use in various civil matters, was applied by Henry II., in an expanded and technical form, to the decision of suits to try the right to land. It is described by Glanvill as a royal boon conferred on the people, with the counsel and consent of the 'proceres,' to relieve freeholders from the hardship of defending the title to their lands by the doubtful issue of trial by battle. 3 By the grand assize the defendant was allowed his choice between wager of battle and the recognition {i.e., knowledge) of a jury of twelve sworn knights of the vicinage, to be elected by four other sworn knights of the vicinage summoned for that purpose by the sheriff. 1 Supra, p. 90. » 2 Assisa= Statute or Ordinance. The recognition by jurors was called an assise because it was established by an assisa or statute of Henry II., the text of which, however, has not been preserved. It seems to have been called ' Magna' from the importance of the questions to be decided under it and the superior station of the milites who were to compose the jury. The ' milites ' were not always actual knights, but they must have possessed landed property sufficient to render them legally compellable to take the degree of knighthood or pay a fine. In ancient times the word ' miles ' was in fact almost synonymous with ' gentleman ' now. — Forsyth, Trial by Jury. 453-X^L 3 ' Ktautem Magna Assisa regale quoddam beneficium, dementia prin- cipis de consilio procerum populis indultum, quo vitae hominum et status integritati tarn salubriter consulitur, lit in jure quod quis in libro soli tenemento possidet retinendo duelli casum declinare possint homines ambiguum.' —Glanvill, De Legibus Angliae, lib. ii. c. 7. v.] Norman and Plantagenet Kings. 159 In actions not seeking to determine the absolute right 0ther Assizes, to land, but dealing with the seisin only (of which the ' assize of novel disseisin ' was the most important), the sheriff himself chose twelve knights or freeholders {legales homines) of the vicinage, who were sworn to try the question. In both cases the recognitors were sworn to The Jury were found their verdict upon their own knowledge, gained wtnesses - either by eye-witness or by the words of their fathers, or by such words as they are bound to have as much confi- dence in as if they were their own. 1 The proceeding by •assize was in fact merely the sworn testimony of a cer- tain number of persons snmmoned to give evidence upon matters within their own knowledge. They were them- selves the only witnesses. If all were ignorant of the facts, a fresh jury had to be summoned ; if some of them only were ignorant, or if they could not agree, others were to be added until a verdict could be obtained from twelve unanimous witnesses. 2 The remedy by assize was subsequently improved by several Acts of Parliament, particularly 13 Ed. I. c. 25 ; and as all actions on the assize were tried in the king's court or in that of the justices itinerant, the jurisdiction of the county and hundred courts began, from this period, rapidly to decline. By the Assize of Clarendon the principle of recognition Growth of the by jury was extended to criminal cases. It was ordained casls. 1 " cnmina that in every county twelve lawful men of each hundred, 1 ' Ad scientiam autem eorum qui super hoc jurant inde habendam, exigitur quod per proprium visum suum et auditum illius reihabuerint noti- tiam, vel per verba patrum suorum et per talia quibus fklem teneantur habere ut propriis. : — Glanvill, ii. c. 17. 2 Ibid. An example of the whole jury being ignorant of the facts, and of the summons of a fresh one in consequence, occurs in Placit. Abb. 1 1, Wiltesir : ' Assisa venit recognitura si Adam de Greinvill et Willielmus de la Folie dissaisaverunt injuste et sine judicio Willielmum de Weston de libero teDe- mento suo in Suto post primam coronationem Domini Regis. Juratores dicunt quod non viderunt unquam alium saisitum de tenemento illo nisi ■Willielmum de la Folie. Et quod nesciunt si Willielmus de la Folie dis- saississet eum vel non, consideratum est quod alii juratores eligantur qui melius sciant rei veritatem. Dies datus est eis ad diem Mercurii. ' i6o Administrative System under the [Ch. Assize of Clarendon, A.D. 1 1 66. Richard I.'s Articles of Visitation, A.D. 1 194. The Grand Jury. Compurgation dies out. with four lawful men from each township, should be sworn to present all reputed criminals of their district in each county court. The persons so presented were to be at once seized and sent to the water ordeal. 1 This was simply a reconstitution or revival, in an expanded form, of the old English institution analogous to a grand jury, which, as we have seen, had existed at least since the time of King ^Ethelred II. By the Articles of Visitation issued under Richard I. in 1 1 94, as instructions to the itinerant justices, the election and constitution of the jury of presentment established by Henry II. was further regulated and assimilated to the system already in use for nominating the recognitors of the grand assize. 2 From this developed jury of presentment our present Grand Jury has .historically descended. 3 The establishment of this system of presentment and ordeal for all criminal cases had the effect of abolishing 1 Assize of Clarendon, Select Chart. 137. Even those who successfully passed through the ordeal were to abjure the kingdom within eight days, as being of evil character by the testimony of the neighbourhood. 2 Forma procedendi in placitis Coronae Regis. In primis eligendi sunt quatuor milites de toto comitatu, qui per sacramentum suum eligant duos legales milites de quolibet Hundredo vel Wapentacco, et illi duo eligant super sacramentum suum x milites de singulis Hundredis vel Wapentaccis ; vel, si milites defuerint, legales et liberos homines, ita quod illi xii. in simul respondeant de omnibus capitulis de toto Hundredo vel Wapentacco.' — Hoveden, iii. 262; Select Chart. 251. 3 In the course of time the element of popular election in the mode of nominating the grand jury was entirely eliminated. Under the present grand jury system twenty-four freeholders of the county are summoned by the sheriff. Of these, a certain number, varying from twelve to twenty- three, are sworn, and having been previously instructed in the articles of inquiry by a ' charge ' from the judge, withdraw to examine indictments and hear privately the evidence for the prosecution only. If twelve are satisfied of the truth of the accusation, the grand jury find ' a true bill ' and the prisoner is then put on his trial in open court before a judge and twelve petit jurymen. If not satisfied, the grand jury find ' no true bill. ' This is termed ' ignoring ' the bill, from the word ' ignoramus,' which was for- merly endorsed on it. A famous historic case of ' ignoramus ' occurred on the trial of Lord Shaftesbury for high treason in 1681, when the grand jury of London ignored the bill. — State Tr. viii. 768. A more recent case, arising out of the Jamaica rebellion, was the ignoring the indictment for murder against Governor Eyre. v -] Norman and Plantagenet Kings. 161 the ancient practice of compurgation by the oath of friends, 'the manifest fountain of unblushing perjury.' 1 In the year .1215, ordeal was abolished throughout Ordeal Christendom by the fourth Lateran Council ; and there abolished - remained only in England the grand jury and the com- bat. But the combat was not applicable unless an The combat not injured prosecutor, or 'appellant,' came forward to f^f*" 7 appU " demand it ; and as the grand jury was found inade- quate to secure perfect justice the practice (which had been introduced even before the abolition of ordeal) gradually grew up of allowing a second or petit jury to Petitjmy affirm or traverse the testimony of the first act of inquest- lntroduced - men. This became the general usage in the reign of Henry III. Still for a long time no prisoner was com- Pe ^ e forte et pellable to plead, that is, he might refuse to be tried by dure - the jury : but in this case he was remanded to prison, and from the date of the Statute of Westminster I. (3 Edward I.) was liable to the barbarous punishment called peine forte et dure, which was only abolished so late as the reign of George III. 2 It is important to bear in mind that in trial by jury as Difference permanently established, both in civil and criminal cases, between the Z . ancient and by Henry II., the function of the jury long continued modem jury, very different from that of the modern tribunal. The jurymen were still mere recognitors, deciding simply on their own knowledge. or from tradition, and not upon 1 In boroughs, (whose charters exempted them from the jurisdiction of the county court,) compurgation was retained some time longer. In the civil action of debt, it lingered on to a recent period. The defendant, in an action of debt, was allowed ' to wage his law, ' that is, to deny upon oath the debt, and vouch eleven compurgators in support of his credibility. The consequence of this was that plaintiffs avoided, when they could, that form of action, for as Sir Edward Coke says of his own time, ' Men's consciences do grow so large (specially in this case passing with impunity) as they ■choose rather to bring an action upon the case upon his (the defendant's) promise, wherein (because it is trespass sur le case) he cannot wage his law, than an action of debt.' — Co. Litt. 295, b. The defendant himself was sworn defidclitate, and the eleven compurgators de credulitate. — Forsyth, 82. 2 12 Geo. III. c. 20. For an account of the peine forte et dure, see Reeve, Hist. English Law, and Stephen, Com. iv. 476. l62 Administrative System under the [ch. Later develop- ment of the jury. Unanimity of jury. Special witnesses sum- moned as part of the jury, temp. Henrylll. Witnesses distinct from jury, 23 Edw. III. evidence produced before them ; and it was for this reason that they were always selected from the hundred or vicinage in which the question arose. 1 The later development; common to the civil and criminal jury alike, by which the jurors gradually changed from witnesses into judges of fact, the proof of which rested exclusively on the evidence of others, has now to be considered. We have seen that it was neces- sary that twelve jurymen should concur in their verdict, and this result, in civil cases at least, was procured by ' afforcing ' the jury, that is, adding other recognitors from the vicinage who were acquainted with the matter. But the difficulty of procuring a verdict of twelve, caused for a time the verdict of a majority to be received. In the reign of Edward III., however, the necessity for an unani- mous verdict of twelve was re-established. Under Henry III. special witnesses (such as the wit- nesses to a deed) were sometimes summoned together with, and formed part of, the jury. In the Year Books of 23rd Edward III. mention is made of witnesses being adjoined to the jury to give them their testimony, but without having any voice in the 1 ' Trial by jury, according to the old English law, was a proceeding essentially different from the modern tribunal, still bearing the same name, by which it has been replaced ; and whatever merits belonged to the original mode of judicial investigation — and they were great and unquestion- able, though accompanied by many imperfections — such benefits are not to be exactly identified with the advantages now resulting from the great bulwark of English liberty. Jurymen in the present day are triers of the issue : they are individuals who found their opinion upon the evidence, whether oral or written, adduced before them ; and the verdict delivered by them is their declaration of the judgment which they have formed. But the ancient jurymen were not impanelled to examine into the credibility of the evidence : the question was not discussed and argued before them : they, the jurymen, were the witnesses themselves, and the verdict was sub- stantially the examination of these witnesses, who of their own knowledge, and without the aid of other testimony, afforded their evidence respecting the facts in question to the best of their belief. In its primitive form a trial by jury was therefore only a trial by witnesses ; and jurymen were distin- guished from any other witnesses only by customs which imposed upon them the obligation of an oath and regulated their number, and which prescribed their rank and defined the territorial qualifications from whence they ob- tained their degree and influence in society.' — Palgrave, Eng. Com. i. 243. v l Norman and Plantagenet Kings. 163 verdict. This is the first indication of the jury deciding on evidence formally produced in addition to their own knowledge, and forms the connecting link between the ancient and the modern jury?- Early in the reign of Henry IV. a further advance was Temp. Henry IV. made. All evidence was required to be given at the bar artl^barofthe of the court, so that the judges might be enabled to court- exclude improper testimony. From this change flowed two important consequences : Consequences of (1) From the exercise of control on the part of the judges sprang up the whole system of rules as to evi- dence. (2) The practice of receiving evidence openly at the bar of the court produced a great extension of the duty of an advocate. ' In earlier times,' says Mr. Starkie, 2 ' — upon criminal as well as civil inquiries — the jury, after they had been sworn and merely charged by the court as to the points at issue, retired to consult together in secret without hearing either witnesses or counsel at the bar. But now the scene was totally changed ; witnesses were examined and cross-examined in open court ; the flood-gates of forensic eloquence were opened, and full scope given to the advocate to exercise his ingenuity and powers of persuasion on the jurors, to whose discretion, the power of judging on matters of fact was now intrusted.' In the treatise of Chief Justice Fortescue, ' De Laudibus Temp. Henry Legum Angliae,' written soon after the year 1450, we ^ sarneTs"'^ have clear evidence that the mode of procedure before present : juries by viva voce evidence was the same as at present. 3 But juries were still for a long time entitled to rely on But still entitled their own 'knowledge in addition to the evidence. In o^nlirXledge: the first year of Queen Anne, the Court of Queen's Bench decided that if a jury gave a verdict of their own 1 Spence, Eq. Juris, i. 129. 2 Law Review, No. iv. 3 Fortescue, De Laud. Leg. Ang. c. 26 ; Hallam, Midd. Ages, ii. 402. M 2 164 Administrative System under the [Ch. Down to reign of George I. Rule as to Venue. Writ of Attaint. Abolished temp. George IV. knowledge, they ought so to inform the court, that they might be sworn as witnesses. This, and a subsequent case in the reign of George I., at length put an end to all remains of the ancient functions of juries as re- cognitors. 1 In the same way the ancient rule requiring jurors to be returned from the vicinage or hundred, which arose when jurymen were themselves the witnesses, was, after various modifications, abolished in all civil actions in the reign of George II., 3 and it was directed that jurors should be summoned from the body of the county. While the jurymen were mere recognitors, or wit- nesses, if they gave a wrong verdict, they must usually have been guilty of perjury. Hence, at common law, they became liable to the writ of attaint, which, in the time of Henry II., was restricted to pleas of assize only, (Novel disseisin, &c), but was afterwards by various sta- tutes extended to ' every plea, real as well as personal.' 3 In attaint the cause was tried again by a jury of twenty-four. If the verdict of the second jury was opposed to that of the first, the original twelve jurors were arrested and imprisoned, their lands and chattels were forfeited to the king, and they became for the future infamous. At a later period other severities were added to the sentence.* After the jury became distinct from the witnesses, attaint gradually fell into disuse. Sir Thomas Smith, in 1583, says attaints were 'very seldom put in use.' 5 In 1757, Lord Mansfield said ' the writ of attaint is now a mere sound in every case ;' 6 but it was not legally abolished till the reign of George IV. 7 1 Spence, Eq. Juris, i. 130. 2 4 & 5 Anne, c. 16, and 24 Geo. II. c. 18. 8 34.Edw. III. c. 7. An attaint lay in civil cases only. Bushell's case, 6 State Trials, 999 ; Hawkins, Pleas Cr., bk. i. ch. 72, s. 5. 4 Broom, Constitutional Law, 154. 5 Smith, Commonwealth (ed. 1635), iii. ch. 2, p. 207. 6 Bright v. Eynon, I Burr. 393. 1 6 Geo. IV. c. 50, s. 60. v Norman and • P lantagenet Kings. 165 Long before the legislative abolition of attaint the its object effected DV 3i object which that proceeding indirectly attained — a new trial. review of the first verdict — had been superseded in prac- tice by the motion for a new trial and rule thereupon granted, the first recorded instance of which occurred in the year 166s. 1 Besides the legal method of attaint, there was also J ude ? fined and ' imprisoned. another and illegal method of punishing a jury for a false verdict frequently employed by the Tudor and Stewart sovereigns for political purposes. This was by fine and imprisonment by the Court of Star Chamber. In the first year of Queen Mary's reign, A.D. 1554, Sir Sir Nicholas Nicholas Throckmorton was tried and acquitted by a casej I5S4 _ jury on a charge of high treason in connexion with Sir Thomas Wyatt's rebellion. Thereupon 'the court, being dissatisfied with the verdict, committed the jury to prison.' Some of the jury apologized and were libe- rated, the rest were fined by the Court of Star Chamber and kept in prison till the fines were paid. 2 After the abolition of the Star Chamber the Crown made use of the judges to intimidate juries. At length the immunity of Immunity of Junes * juries was finally established in 1670, by the celebrated established: decision of Chief Justice Vaughan in Bushell's Case? Bushdl 's case, Edward Bushell was foreman of the jury who acquitted '°' the famous William Penn and William Mead, the Quakers, on a prosecution for having preached to a large assemblage of people in Gracechurch Street contrary to the Conventicle Act (16 Car. II. c. 4). The Recorder of London fined each of the jury forty marks (£26. 1 3-y. 4//.) ; and Bushell having been committed to prison for refus- ing to pay, sued out his writ of habeas corpus in the Court of Common Pleas. On the return being made that he had been committed for finding a verdict * against 1 Ftfrsyth, Hist, of Trial by Jury, 186. 2 I State Trials, 869. 3 6 State Trials, 999. i66 Administrative System under the [Ch. General verdicts. Fox's Libel Act. The King's Concilium Ordinarium. full and manifest evidence and against the direction of the Court,' Chief Justice Vaughan held the ground to be insufficient and discharged the prisoner. In his judgment in this case Chief Justice Vaughan was led to affirm the legal right of the jury, without the direction of the judge, to find a general verdict in criminal cases, that is, to determine not only the truth of the facts, but their quality of guilt or innocence. 1 This question came up again with reference to the law of libel. In the Trial of the Seven Bishops, in 1688, the jury as- serted their right to decide upon the purport of the libel, but subsequently in the trial of the printers of the ' North Briton' in 1764, Lord Mansfield ruled that it was the province of the court alone to judge of the criminality of a libel, a doctrine wholly subversive of the right of juries. This doctrine, after being both assailed and maintained for a long time, was at length reversed, in opposition to all the judges and -chief legal authorities of the time, by the passing, in 1792, of Fox's Libel Act (32 Geo. III. c. 60), which, in the form of a declaratory law, enacted that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue. 2 After the old Curia Regis had been permanently split up into the three separate courts of King's Bench, Com- mon Pleas, and Exchequer, each under its own chief, the ancient personal jurisdiction of the king still continued to be exercised by him in his Ordinary or Privy Council, 3 not only as an upper court of appeal, but as a direct court of royal justice in all cases which had not been 1 State Trials, vi. 1013. " See Sir Erskine May, Const. Hist. ii. 253-263. 3 The term ' Privy Council ' does not appear to have been used until after the reign of Henry VI. ; the former style was ' ordinary ' or ' con- tinual' council. But a distinction was always made according to the nature of the business ; subjects of purely political deliberation seem to have been discussed by the great officers of state, or as we should now say the ministers, alone, without the presence of the judges or other legal members of the concilium ordinarium. They formed therefore an internal council of government, in some respects analogous to the modem cabinet. v -] Norman and Plantagenct Kings. 167 specially delegated to the recently constituted courts of common law. The ' concilium ordinarium' was always sit- ting for the despatch of business, 1 and occupied for that purpose different chambers about the palace, among which the Star Chamber, la Chambre des Etoiles, is specially mentioned in the records of Edward III.'s reign. 3 The powers exercised by the Council were most extensive, Its extensive and indeed indefinite. It was the king's standing council of advice in all matters of administration ; it received, discussed, and remitted to the proper courts a vast number of petitions, which were constantly being pre- sented, praying for relief in various matters of judicial cognizance ; s it exercised by itself, or in conjunction with the Lords' house in Parliament, a very great juris- diction in causes both civil and criminal ; and in matters of a temporary, partial, or comparatively un- important nature, assumed, by issuing ordinances claim- . ing the force of statutes, the exercise of legislative powers. As regards the particular description of judicial busi- ness, civil and criminal, disposed of by the council itself, we have seen that Henry II., in 1178, had constituted it a court of appeal for all such causes as the ordinary judges should be incapable of determining. 4 The council also exercised a convenient and salutary jurisdiction in cases of injury and oppression where, from the heinous- ness of the offence, the rank or power of the defendant, popular riots, or other cause, it was likely that a fair trial in the inferior courts could not be obtained, or that the process of the courts would be resisted by force. 1 Sir H. Nicolas, Preface to Proceedings of Privy Council, p. iii. 2 31 Edw. III. St. 1, u. 12 ; Spence, Eq. Juris, i. 330. 3 The general nature of these petitions appears from the answers of the Council which have been preserved: 'Sue at Common Law' [i.e., by ordinary writ) ; ' sue in Chancery ' (i.e., before the ordinary common law court held before the chancellor) ; ' to be heard before the Great Council ; ' ' a writ on the subject shall be despatched out of Chancery ; ' ' a remedy shall be provided,' &c. — Hardy, Introd. to Close Rolls, p. xxvi. 4 Supra, p. 150. 1 68 Administrative System under the [Ch. The rapine and oppression committed by the aristocracy during the middle ages frequently called for the inter- position of this paramount authority. 1 Further, where a person was suffering imprisonment by the process of an inferior court, the double remedy of a subpoena against the pursuing party and a writ of habeas corpus cum causa (by which the cause itself and the body of the defendant were brought to be dealt with by the council) was some- times given. 2 The council had also the power of issuing writs into all special jurisdictions or franchises, such as Wales and Ireland ; s and the poor, in theory at least, were the objects of its special care.* Rise of the In the exercise of its judicial functions, the ' concilium jurfsdiction S ordinarium' appears to have been generally presided over by the Chancellor, who, until the reign of Edward III., was always an ecclesiastic of high dignity, and as keeper of the king's conscience was peculiarly entrusted with the duty of redressing the grievances of the king's sub- jects. This great officer, independently of his connexion with the council, exercised an ordinary legal jurisdiction of much importance. 5 But in the reign of Edward I. we begin to perceive signs of the rise of the extraordinary or equitable jurisdiction of the Chancellor. This monarch was wont to send certain of the petitions addressed to him, praying extraordinary remedies, to the Chancellor and Master of the Rolls, or to either separately, with 1 In the articles for the regulation of the Council agreed to in Parlia- ment 8th Henry VI. we read : ' Item, that alle the billes that comprehend matters terminable atte the common lawe shall be remitted ther to be de- termined ; but if so be that the discretion of the counseill fele to grete myght on the one syde and unmyght on that other, or elles other cause re- sonable yat shal move him.' — Rot. Pari. iv. 343; Hallam, Midd. Ages, iii. 145. 2 Palgrave, Essay on the Jurisdiction of the King's Council, 90, 134. 3 Ibid., p. 19. 4 Rot. Pari. iv. 201. 6 On the chancellor's ordinary jurisdiction, see Spence, Eq. Juris, i. 336. The proceedings were by common law process ; but as the chancellor had no authority to summon a jury, issues of fact were remitted for trial to the Court of King's Bench. v.] Norman and Plantagenet Kings. 169 directions to give such remedy as should appear to be consonant to honesty (or equity, konestati)} During the reign of Edward II. the jurisdiction of the Court of Chancery was considerably extended, and there occurs frequent and familiar mention of the 'consuetudo can- cellariae.' 3 Under Edward III. the equitable jurisdiction of the court was frequently invoked. By ' equitable jurisdiction ' we are to understand (to quote the words of Lord Campbell) 'the extraordinary interference of the Chancellor, without common-law process or regard to the common-law rules of proceeding, upon the petition of a party grieved who was without adequate remedy in a court of common law; whereupon the opposite party was compelled to appear and to be examined, either personally or upon written interrogatories : and.evidence being heard on both sides, without the interposition of a jury, an order was made secundum cequum et bonum, which was enforced by imprisonment. Such a jurisdic- tion had belonged to the Aula Regia, and was long exer- cised by Parliament ; and when Parliament was not sit- ting, by the king's ordinary council To avoid the circuity of applying to Parliament or the council, the petition was very soon, in many instances, addressed originally to the Chancellor himself.' s But the Council and the Chancellor, not content with Encroachments their admitted sphere of action, unconstitutionally as- nthejuris- sumed original jurisdiction in cases cognizable at common diction of the ,. . , r , ,., . , , , Common Law. law. In direct violation of the liberties guaranteed by the Great Charter, men were arbitrarily imprisoned without the legal process of indictment or presentment, and their lands seized into the king's hands. During the reign of Edward III. a series of statutes were passed, in answer to the repeated complaints of the Commons, restraining 1 Spence, Eq. Juris, i. 335. 2 Lord Campbell's Chancellors, i. 204. 3 Ibid., i. 7. 170 Administrative System under the [Ch. A series of Statutes passed in restraint of the Council and Chancery. these illegal invasions by the council upon the rights of property and personal liberty. In the 5th Edward III. it was enacted that ' no man from henceforth shall be attached by any accusation, nor forejudged of life or limb, nor his lands, tenements, goods, or chattels seized into the king's hands, against the form of the Great Charter and the law of the land.' l Twenty years later (25th Edw. III.) the commons again petitioned against the illegal proceedings of the council. Receiving a some- what unsatisfactory reply from the king, they repeated their petition in a subsequent Parliament, and obtained the enactment of a statute which, expounding the words of Magna Charta, explicitly declares : — -' Whereas it is contained in the Grand Charter of the franchizes of Eng- land that no freeman shall be imprisoned nor put out of his freehold, nor free custom, unless it be by the law of the land ; it is awarded assented and established that from hence none shall be taken by petition or suggestion, made to our lord the King or to his Council, unless it be by indictment, or presentment of his good and lawful people of the same neighbourhood; which such deeds shall be done in due manner, or by process made by writ original at the common law, nor that none be outed of his franchizes nor of his freehold, unless he be duly brought in to answer and forejudged of the same by the course of the law ; and if anything be done against the same it shall be redressed and holden for naught.' 3 Similar provi- sions were contained in a short enactment of the 28th of Edward III. ; 3 yet in the 36th of the same reign we find the commons again complaining, and it was ordered 'that the charters and statutes be held and put in execution according to their petition.' 4 In the following year an- other statute was passed in these terms : ' Though it be 1 5 Edw. III. u. 9. 2 25 Edw. III. t . 4. 3 28 Edw. III. u 3. 1 Rot. Pari. 9. v -] Norman and Plantagenet Kings. T 7 X contained in the Great Charter that no man be taken nor imprisoned nor put out of his freehold without process of the law ; nevertheless divers people make false sug- gestions to the king himself as well for malice as other- wise, whereat the king is often grieved and divers of the realm put in damage against the form of the said charter; wherefore it is ordained that all they which make such suggestion's shall be sent with the same sug- gestions to the Chancellor, Treasurer, and his Grand Council, and that they there find surety to pursue their suggestions, and incur the same pain that the other should have had, if he were attainted, in case that the suggestion be found evil : and that then process of law be made against them without being taken or im- prisoned against the form of the said charter and other statutes} In the 42nd year of Edward III. the commons again petitioned : ' Because many of your commons are hurt and destroyed by false accusers, who make their accusa- tions more for their revenge and particular gain than for the profit of the king or of his people ; and of those that are accused by them some have been taken, and others are made to come before the king's council by writ, or other commandment of the king, upon grievous pains contrary to the law : That it would please our lord the king, and his good council, for the just government of 1 37 Edw. III. c. 18. Hallam, (Midd. Ages, iii. 253,) appears to have misapprehended the purport of this obscurely-worded statute in saying that it ' recognizes in sqme measure those irregular proceedings before the council by providing only that those who make suggestions to the chan- cellor and great council by which men are put in danger against the form of the charter, shall give security for proving them.' The accusers were to give security to prosecute their suit and to incur, in the event of an acquittal, the same penalty as that to which the accused would have been subjected if found guilty ; but the prosecution itself was to be by ' process of law made against them [the accused] without being taken or imprisoned against the form of the said charter.' The effect of the statute would seem to be to punish 'all persons making false suggestions to the king himself instead of proceeding by due process of law, by compelling them to resort to the regular courts and in addition to pay a penalty if they failed to prove their case. 172 Administrative System under the [Ch. his people, to ordain that, if hereafter any accuser pro- pose any matter for the profit of the king, the same matter be sent to the justices of the one bench or of the other, or the assizes, to be inquired and determined according to the'law ; and if it concern the accuser or party, that he have his suit at the common law ; and that no man be put to answer without presentment before the justices or matter of record, or by due process and original writ, according to the ancient law of the land. And if anything henceforth be done to the con- trary, that it be void in law and held for error.' The answer to this petition, whereon a statute to the same effect was grounded, runs : ' Because this article is an article of the Grand Charter, the king willeth that this be done, as the petition doth demand.' * Acts of Parliament, however, were of little avail against the stubborn perseverance of King and Council in retain- ing the power which they had been so long accustomed to use. The civil jurisdiction of the Council was at this time principally exercised in conjunction with the Chan- cery, now growing into importance, and the two are henceforth generally named together in the remon- strances which the commons still from time to time con- tinued to present. To a petition in the 13th of Richard II., that neither the chancellor nor the king's council should make any Ordinance against the common or statute law or the ancient customs of the land, ' but that the common law have its course for all the people and no judgment be rendered without due legal process,' the king returned the unsatisfactory answer : ' Let it be done as has been usual heretofore, saving the preroga- tive ; and if any one is aggrieved, let him shew it specially and right shall be done him.' 3 During Richard II.'s reign, especially in the second 1 42 Edw. III. c. 3 and Rot. Pari. ii. 295. 2 Rot. Pari. iii. 266. v.] Norpian and Plantagenet Kings. 1 73 chancellorship of Archbishop Arundel, the equitable jurisdiction of the Chancery was much extended, and the famous writ of subpoena came into use as invented or improved by John de Waltham, Master of the Rolls. This innovation does not appear to have merited the great importance attached to it, 1 but it was highly un- popular at the time, and excited vigorous complaints from the commons. The lawyers, too, of the ordinary courts, manifested much professional jealousy of the growing jurisdiction of Chancery ; and as the Chancellor was almost always an ecclesiastic, and was guided in his decisions by the civil and canon laws rather than by the customary laws of the country, the laity naturally re- garded his office with distrust. 2 Nothing more, however, was effected in this reign than the passing an Act 3 by which power was given to the Chancellor to award damages in cases where people should be compelled ' to come before the King's Council or in the Chancery by writs grounded on untrue suggestions ;' a remedy which, being referred to the discretion of the Chancellor himself, whose jurisdiction was to be controlled, proved wholly ineffectual, but was used as a parliamentary recognition of the authority of the court, and a pretence for refusing to establish any other check upon it. 4 From the passing of the statute 17 Richard II. at the Permanent esta- latest, the Court of Chancery may be regarded as a dis- chan™d?or°s f the tinct and permanent court, having separate jurisdiction, equitable jurisdiction. 1 Lord Campbell's Chancellors, i. 246. 2 ' In the reign of Edward III. the exactions of the court of Rome had become odious to the king and the people. ... A general distaste on the part of the laity of all ranks to everything connected with the Holy See had begun to spring up. The name of the Roman Law, which in the reigns of Henry II. and III. and of Edward I. had been in considerable favour at court, and even with the judges, became the object of aversion. In the reign of Richard II. the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges pro- hibited it from being any longer cited in the common law tribunals.' — Spence, Eq. Juris, i. 346. 3 17 Ric. II. c. 6. * Lord Campbell's Chancellors, i. 247. 1 74 Administrative System under _ the [Ch. with its own peculiar mode of procedure similar to that which had prevailed in the Council. 1 During the reigns of Henry IV. and Henry V., and in the minority of Henry VI., the commons continued to remonstrate against the encroachments of the Chancery. But from the time of Edward IV. although the judges still dis- puted the Chancellor's authority to interfere with the proceedings of the common law courts, we do not trace any further opposition on the part of the commons ; and down to the reign of Charles II. the court continued to be substantially the same as it was in the reign of Edward IV. 3 Magnum The Concilium Ordinarium has been considered with reference to its independent jurisdiction : but it was also equally conspicuous in its relation to the high court of Parliament. It was this council, in conjunction with the Lords' house, and occasionally also with the other elements of Parliament, ' summoned to meet, but not under the proper parliamentary style,' which constituted the Magnum Concilium of the 13th and 14th centuries. As the Commons took no part in the judicial power of Parliament, 3 its function as the king's great and extra- ordinary court of justice was performed by the king's Great Council, — the Lords' house in Parliament blended Origin of the with the ordinary council. It is from the mixed powers oftteHouseof °f this assembly, and the double capacity of the peerage Lords : 1 Spence, Eq. Juris, i. 345. Suits in chancery were commenced by petition or bill, without any preliminary writ, followed by a subpoena sum- moning the party complained against to appear before the court and make answer. Disputed facts might be established by the personal examination of the parties on oath, a proceeding unknown to the common law, but employed by this tribunal and by the council from which it branched off. a Palgrave, Authority of the King's Council, 97 ; Spence, Eq. Juris, i- 349- a The Commons acknowledged in the 1st Henry IV. that they had no right to interfere in judicial matters (Rot. Pari. iii. 427 ; Lords Report, 1823, p. 360); but in the next reign they began to concern themselves with the petitions of private individuals to the lords or council, which in many instances were passed in the form of statutes with the express assent of all parts of the legislature. Hence originated private acts of Parliament. — See Hallam, Midd. Ages, iii. 92. v.] Norman and Plantagenet Kings. 1 75 as members both of the Parliament or legislative council and of the deliberative and judicial council, that the House of Lords derived its judicial character as a court of appeal, 1 and the Privy Council its legislative character, and of the legis- which it attempted to carry out in the shape of ordi- Vthe C Privy " nances. 2 The judges and other official members of the Council. Ordinary Council originally attended as constituent mem- bers of the Great Council, and in that capacity, although not peers, had right of suffrage ; but in the time of Edward III. or Richard II. the Lords by their ascen- dancy threw the judges and rest of the council into the shade, and took the decisive jurisdiction into their own hands : s thus reducing their ancient colleagues of the council, not being lords, to the position of assistants and advisers, which they have ever since held in the judicial proceedings of the Upper House. The original tribunal, the king's Concilium Ordinarium, Judicial powers retained throughout its extraordinary jurisdiction. After ofPrlv y CounclL throwing off as branches or offsets the Court of Requests, 4 and the more famous Court of Star Chamber, it trans- mitted its judicial powers to the Privy Council, by whom, through the medium of a judicial committee, 5 they are still exercised. 1 ' The king's delegated sovereignty in the administration of justice, rather than any intrinsic right in the peerage, is the foundation on which the judicature of the lords must be supported.' — Hallam, Midd. Ages, iii. 145. 2 Stubbs, Select Chart. Introductory Sketch, 23. 3 Hallam, Midd. Ages, iii. 145 ; Palgrave, Council, 64. 4 The Court of Requests, a minor court of Equity, is supposed to have had its origin in an order of the 13th Richard II. for regulating the council, by which the lords of the council were to meet between eight and nine o'clock, and the bills of the people of lesser charge were to be examined and despatched before the Keeper of the Privy Seal and such of the council as should be present for the time being: This court continued to be resorted to down to the 41st of Elizabeth when it was virtually abolished by a decision of the Court of Queen's Bench. It was legally dissolved at the same time as the Court of Star Chamber by statute 16 Car. I. c. 10. — • Palgrave, Council, 79, 99 > Spence, Eq. Juris, i. 351. 5 The Judicial Committee of the Privy Council was established by 3 & 4 Will. IV. c. 41. After hearing the allegations and proofs the Committee make their report to the Queen in Council, by whom the judgment is finally given. 176 Administrative System under the [Ch. Origin of Court of Star Chamber. New court instituted by Henry VII. As regards the origin of the Court of Star Chamber, it has already been mentioned that in the reign of Edward III. the king's Ordinary Council was in the habit of sitting in what was called the Starred Chamber. 1 After the establishment of the Court of Chancery as a separate and independent jurisdiction taking cognizance of the greater portion of the civil business of the*Council, the latter body appears to have usually sat in the Star Chamber while exercising jurisdiction over such cases as were not sent to the Chancery. ' The continual com- plaints of the commons,' says Lord Hale, 2 ' against the proceedings before the council in causes civil or criminal, although they did not always attain their concession, yet brought a disreputation upon the proceedings of the council as contrary to Magna Charta and the known laws/ and the jurisdiction appears to have gradually declined till the time of the Tudors. Henry VII., ap- parently prompted by a desire to restore in a new and more legal form a jurisdiction which was now become almost obsolete, created, in the 3rd year of his reign, a new court, sometimes inaccurately called the Court of Star Chamber. This new court consisted of the chan- cellor, treasurer, and lord privy seal, or any two of them, as judges, together with a bishop, a temporal lord of the council, and the two chief justices, or in their absence two other justices, as assistants. By a later statute, 21 Henry VIII. c. 20, the President of the Council was added to the number of the judges. Neither in this sta- tute, nor in that of the 3rd Henry VII., is the name of Star Chamber applied to this court ; but as most, if not all, of its members were also members of the king's ordinary council, it may be regarded, in a certain sense, as a judicial committee of that body. It continued to exist as a distinct tribunal from the ordinary council till to- ' Supra, p. 167. Jurisdiction of the Lords' House, 38, 39. v -l Norman and Plantagenet Kings. IJ7 wards the close of the reign of Henry VIII. ; but in the Jurisdiction of meantime, probably during the chancellorship of Wolsey, chamber'" the jurisdiction of the ancient Star Chamber was revived, revived under and in it the limited court erected by Henry VII. became enry gradually merged. In the revived court, the lord chan- cellor (as president), the treasurer, lord privy seal, and the president of the council, still continued to sit, but with them were associated all other members of the council and, at one time, apparently, all peers spiritual or temporal who chose to attend. Under the Stewart kings the court became practically identical with the Privy Council, thus combining in the same body of men the administrative and judicial functions. The Star Chamber exercised a jurisdiction analogous, in principle and procedure, to that .of the Court of Chancery, and founded on the inefficiency of the ordinary tribunals to do complete justice in criminal matters and other offences of an extraordinary or dangerous character. Its civil jurisdiction comprised disputes between alien merchants and Englishmen, questions of prize or un- lawful detention of ships, and other matters of maritime law ; certain testamentary causes, and suits between corporations. These were gradually absorbed by the Admiralty, Chancery, and CommonLaw courts, leaving to the Star Chamber its criminal jurisdiction ; which, greatly extended under James I. and Charles I., rendered that court ' so potent and so odious an auxiliary of a despotic administration.' As a court of ' criminal equity,' it took cognizance of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy ; and generally of all misdemeanours, especially those of a public nature, among which were included all breaches of proclamations, without regard to the illegality of the proclamations themselves. Fine and imprisonment were the usual punishments inflicted ; but the court was held competent to pronounce any sentence short of death. The fines were frequently of enormous amount, and though, as a rule, they were reduced or 1 78 Administrative System under the [Ch. Abolished in 1641. Police and military organ ization. remitted, they in many cases proved ruinous to the sufferers. Under the Stewart kings the pillory, whipping, and cruel mutilations were inflicted upon political of- fenders by the sentence of this court ; and at length the tyrannical exercise and illegal extension of its powers became so odious to the people that it was abolished by the Long Parliament in 164'L 1 One of the special characteristics of the English con- stitution — the permanence combined with progressive development of its primitive institutions — is illustrated by the system which we find in use under the Norman and Plantagenet kings, for the preservation of the internal peace of the country, and its defence against hostile invasion. There were two principal methods by which these ends were attained in ancient times, the one civil, The Frith-borh. the other military. (1.) The police organization of the mutual frith-borh, or frankpledge, supplemented by the ' hue and cry ' in pursuit of offenders, in which all the inhabitants of the hundred or tithing were bound to join : (2) The fyrd, or national militia, available not only for the defence of the country, but for the main- tenance of peace at home. Service in this national force was one of the three duties — the trinoda necessitas — to which all alodial proprietors were subject. These primitive institutions, which may be traced in the laws of Eadgar and Cnut, and had probably been customary for ages previously, are all met with in full vigour long after the Norman Conquest, ' working their way through the superstructure of feudalism and gaining strength in the process.' 3 The fyrd, the armed folk-moot of each shire, was The Fyrd. 1 16 Car. I. c. 10. See Palgrave, Essay upon the Original Authority of the King's Council, and Hallam, Const. Hist. i. 48, ii. 29. 2 Stubbs, Select Chart. 459. Although not an essential part of the constitution, these early methods of ensuring peace and defence ' are ancient buttresses of the fabric, and their very permanence attests as well as sustains the corporate identity of the English nationality, which feudalism has disguised, but has not been able to mutilate.' — Ibid. 362. v.] Norman and Plantagenet Kings. 179 originally the only military - system known to our ancestors. The Danish conqueror, Cnut, introduced the The Hus-carls germ of a standing army in the body-guard with which nut " he surrounded himself, composed of mercenaries drawn from various nations. But these hus-carls were not very numerous, being variously estimated at from three to six thousand. The limited period of service to which Employment of the feudal vassals were bound by tenure, and their ™o p e s nary general unmanageableness, caused both William the Conqueror and the succeeding Norman kings to employ mercenary forces, who, however, soon became odious in the eyes of the nation, and had eventually to be given up. Throughout this period the ancient national militia, though thrown into the shade for a time by the feudal and mercenary troops, still subsisted, and occasionally did good service in defence of their country, as at the battle of the Standard, in 1138, which was won by their exertions, and again in n 74, at the battle of Alnwick. The introduction of scutage, on the occasion of the Toulouse war in 1159, as a commutation of personal service, had the effect of diminishing the feudal levies ; and although Henry II. was enabled with the money thus obtained to hire mercenaries for his foreign wars, the hatred of the English towards these forces prevented him from employing them for the purposes of home defence, while the feudal army, besides being insufficient, was too much under the influence of the barons, whose power he was bent upon curtailing. Under these cir- cumstances, the king determined to resuscitate the ancient national force. By the Assize of Arms, issued Assize of arms, in the year 1181, in addition to requiring every IlSl - military tenant to possess a coat of mail, with helmet, J he j anci ? nt d shield, and lance, for every knight's fee which he held in demesne, it was ordained that every free layman having chattels or rent to the value of sixteen marks should be armed in like manner ; that he who was worth only ten marks should possess a habergeon, n 2 i8o Administrative System tinder the [Ch. The alodial and feudal military systems amal- gamated under Henry III. and Edward I. an iron skull cap, and a lance ; and that all burgesses and the whole community of freemen (tota communa liberorum hominum) should furnish themselves with doublets of mail, iron skull caps, and lances. To enforce this, the itinerant justices were charged to ascertain, by the recognition of a jury of ' lawful knights, or other free and lawful men of the hundred or borough,' the value of the rents and chattels of all freemen, and to enrol their names in separate classes, with the nature of the arms appertaining to each ; and then, after causing the schedule to be read in open court, to oblige all to swear that they would provide themselves with these arms within a stated time, and be true and faithful to the king. 1 The two military systems, the ancient alodial and the more modern feudal, continued for some time side by side without coalescing, but tending more and more to amalgamate into the general national armament which we meet with under Henry III. and Edward I. In 1205, a writ of King John, issued in accordance with a provision of the ' commune concilium regni,' directs that every nine knights throughout England shall provide a tenth well equipped with horses and arms for the de- fence of the kingdom, and shall contribute two shillings per diem for his keep. This tithe of knights is to repair to London three weeks after Easter, ready to go wherever ordered, and to remain in the king's service, for the defence of the kingdom as long as need shall require. So far, the military tenants only are affected ; but a connexion with the national militia is traceable in the provision which follows, that in case of foreign invasion, ' all men shall unanimously hurry to meet the enemy with force and arms, without any excuse or delay, at the first rumour of their coming ;' and also in the penal- ties for neglect, which were, in the case of a knightly or other landholder (unless his absence had arisen from 1 Benedict. Abb. i. 278 ; Hoveden, ii. 261. v -] Norman and Plantagenet Kings. 181 infirmity), the absolute forfeiture by him and his heirs of the land which he held ; in the case of knights or others having no land, perpetual slavery for them and their heirs, with the obligation to pay an annual poll tax of four pence each. 1 In the following reign we find the two military forces amalgamated for the purposes of national defence. In 1217, a writ issued during the minority of Henry III., shortly after the battle of Lincoln, and while Lewis of France was still in the country, directs the Sheriff of Berkshire to bring up the whole force of his county, both the feudal levy and also the jurati ad arma, the ancient local militia as re-organized under the Assize of Arms. 3 Concurrently with the development of the ancient f h f^°^ t o{ fyrd, the primitive police organization had also been police organiza- j c ■ ti i. r tion concur- undergoing a process of expansion. The system of rently with that frankpledge was maintained with even increased strin- of the fy rd - gency. It was enforced by an injunction of William the Conqueror and by the Assize of Clarendon under Henry II. 3 By a royal decree issued in 1195, by Arch- 1 Patent Rolls, i. 55. More than five centuries before, the laws of Ine of Wessex (A.D. cir. 690) had declared : 'If a gesithcund man owning land neglect the " fyrd " let him pay cxx. shillings and forfeit his land ; one not owning land, lx. shillings ; a ceorlish man, xxx. shillings, as " fyrdwite." ' So, in the laws of ./Ethelred (A.D. 978-1016): 'And if anyone without leave return from the " fyrd " in which the king himself is, let it be at the peril of himself and all his estate ; and he who else returns from the "fyrd" let him be liable in cxx. shillings.' In the customs of Berkshire as recorded in Domesday (i. 56) we read : ' Si Rex mittebat alicubi exer- citum, de quinque hidis tantum unus miles ibat et ad ejus victum vel stipendium de unaquaque hida dabantur ei iiii solidi ad duos menses. Hos vero denarios Regi non mittebantur sed militibus dabantur. Si quis in expeditionem summonitus non ibat, totam terram suam erga regem foris- faciebat.' The customs of Oxfordshire were more lenient : 'Quimonitus ire in expeditionem non vadit c. solidos regi dabit.' — Select Chart. 61, 72, 87. 2 Report on Dignity of a Peer, App. p. 2. In 1231 the plan already adopted in the case of the military tenants, of dispensing with the personal service of a part on the condition of contributing to the equipment of the remainder, was applied to the jurati ad arma. — Foedera, i. 200; Select Chart. 334, 350. 3 Stat. Will. Conq. 8 : ' Omnis homo qui voluerit se teneri pro libera sit in plegio, ut plegius teneat et habeat ilium adjustitiam si quid offenderit, 1 82 Administrative System tinder the [Ch. bishop Hubert, Richard I.'s chief justiciar, the ' hue and cry ' was enforced, and knights were assigned to receive the oaths for the preservation of the peace. All men above the age of fifteen years were required to swear to keep the peace of their lord the king ; to be neither themselves outlaws, robbers, or thieves, nor to aid such persons as receivers or consenting parties ; to follow up the hue and cry in pursuit of offenders, and seize as malefactors all who failed to join or withdrew from the pursuit, and to deliver them to the sheriff, from whose custody they should not be liberated, except by order of the king or of his chief justice. 1 Conservators of In this appointment of knights to receive the oaths the peace. ma y p r0D ably be discerned the germ of the office of conservator of the peace. Custodes pacis were assigned in 1253 and 1264? They afterwards appear to have been occasionally chosen by the landholders of the county, but were finally appointed to their office by the royal writ or commission. 8 By an act of 1 Edward III., st. 2, c. 16, it was ordained that for the better maintaining and keeping of the peace in every county ' good men and lawful, which were no maintainers of evil or barretors ' should be assigned to keep the peace ; and a later statute in the same reign (34 Edward III., c. 1) ' gave them the power of. trying felonies, when they acquired the more honourable appellation of justices.' 4 et si quisquam talium evaserit, videant plegii ut simpliciter solvant quod calumniatum est, et purgent se quia in evaso nullam fraudem noverint.' — And see the Assize of Clarendon, cap. 9, 10, 15, 16 ; Select Chart. 81, 138. 1 R. Hoveden, iii. 299. In Eadgar's ' ordinance of the hundred ' (A.D. 959-975) it was ordered: 'That a thief shall be pursued. ... If there be present need, let it be made known to the hundredman, and let him make it known to the tithingman, and let all go forth to where God may direct them to go. Let them do justice on the thief, as it was formerly the enactment of Eadmund.' And in Cnut's Secular Dooms, c. 21 : ' And we will that every man above xii. years make oath that he will neither be a thief nor cognizant of theft.'— Select Chart. 69, 73. 2 See the writs in Foedera, i. 291, 292, 442 ; Select Chart. 365, 402. . 3 Palgrave, Eng. Com. i. 300. < Stephen's Blackstone, ii. 665. v.] Norman and Plantagenet Kings. 183 The office of county coroner had already been Coroners, instituted under Richard L, in 1194. 1 The right of electing this officer has always resided in the freeholders of the county. In 1276 his duties were minutely pre- . scribed by Edward I.'s statute, De Officio Coronatoris, to which reference is still constantly made. 3 In 1233, the old police organization, proving inadequate, Watch and was supplemented by a system of watch and ward in a.d. 1233. every township throughout the country. 3 Twenty years later, further regulations were issued extending and en- forcing the watch and ward, and combining it, for the preservation of internal peace, with the Assize of Arms. (1.) Watch was to be kept from sunset to sunrise between Ascension Day and Michaelmas ; in the cities by companies of six good and strong armed men stationed at every gate, in the boroughs by a company of twelve, and in the townships by six, or four at the least, according to the number of the inhabitants. Any stranger attempting to pass through was to be arrested till the morning, and then, if suspected of any crime, delivered to the sheriff and kept in custody until liberated ' per legem terrae.' Even a stranger who arrived by daylight was not to remain in any village, except during harvest- time, unless his host would become surety for his con- duct. A merchant on his road was entitled, after count- ing his money in the presence of the mayor and bailiffs of any city or borough, to demand of them a guard ' per malos passus et loca ambigua,' and if subsequently robbed, could claim restitution from the inhabitants. 1 ' In quolibet coraitatu eligantur tres milites et unus clericus custodes placitorum coronae. ' — Forma procedendi in placitis Coronae Regis, c. 20 ; Hoveden, iii. 262. The coroner, coronalor, is so called ' because he hath principally to do with pleas of the crown. . . . And in this light, the Lord Chief Justice of the Queen's Bench is the principal coroner in the kingdom ; and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm.' — Stephen's Blackstone, ii. 653. 2 4 Edw. I. st. 2. 3 Writ of Hen. III. to the sheriff of Kent : ' De forma pacis conser vanda,' Foedera, i. 209. 184 Administrative System under the [Ch. With the exception of those specially deputed to guard the king's peace, no persons were to be allowed to carry- arms. (2.) The Assize of Arms was renewed and the classification remodelled, all men, 'citizens, burgesses, free tenants, villeins and others,' between the ages of fifteen and sixty, being ranked according to the value of their land or moveables from fifteen pounds annual rent in land down to forty shillings in chattels. 1 (3.) All these were sworn to provide themselves with the arms proper to their class, and ordered to join the hue and cry whenever required. For this purpose they were placed under the command of the local civil authorities, the mayor and bailiffs in cities and boroughs, and the constable in each township, the supreme authority over all being vested in the chief constable of each hundred. 2 Statute of Under our English Justinian, Edward I., whose ' legis- Winchester, l a ti n is so full that the laws of the next three centuries 13 Edward I. are little more than a necessary expansion of it,' 3 the celebrated Statute of Winchester, 4 which though now to a great extent obsolete has been the foundation of modern laws, elaborated and completed the various regulations for watch and ward, reception of strangers, hue and cry, and the Assize of Arms. It was also specially provided that the whole hundred where any robbery should be committed, should be answerable for the damage, unless the felons be brought to justice ; and that highways leading from one market town to another should be widened, ' so that there be neither dyke, tree, nor bush, whereby a man may lurk to do hurt,' within 200 feet of each side of the road. 1 The owner of land worth ^15 a year, and the owner of chattels of the value of 60 marks (,£40) were classed together with respect to their armour, and served in what may be termed the ' Yeomanry Cavalry ' of that period. Each had to provide himself with a coat of mail, an iron head- piece, sword, small knife, and a horse. The other classes served on foot. 2 Writs of 36 and 37 Hen. III. (1252-3) ; Foedera, i. 281, 291 ; Select Chart. 362, 365. 8 Stubbs, Select Chart. Introd. 35. 4 13 Edw. I. u, 6, A.D. 1285. v.] Norman and Plantagenct Kings. 185 The provisions of the Statute of Winchester with respect to the arming of the men of each county were more immediately directed to the preservation of internal peace, by rendering more effective the power of sum- moning the posse comitatus, which the sheriff, as chief con- servator of the peace of the county, had always possessed. But these local forces still continued available for the purposes of national defence ; and from the fourteenth Commissions of down to the middle of the sixteenth century, it was array- customary, whenever invasion was apprehended from Scotland or France, to empower special ' commissioners of array' to muster and train all the men of each county capable of bearing arms, and to hold them in readiness to defend the kingdom. The ancient obliga- tion to keep sufficient arms according to each man's estate was enforced by statutes of Philip and Mary, and the kind of weapons changed for those of more modern fashion j 1 but under James I. these provisions were abro- gated. 3 In 1638, Charles I. issued an unconstitutional Order in Council obliging every freeholder whose land was of the clear yearly value of .£200 to furnish a horse- soldier, when called upon to do so by the Lord Lieu- tenant of his county. The command of the Militia, as the local forces were usually denominated, formed the final ground of rupture between Charles and his Parlia- ment, the latter having passed ordinances (26 Feb. and 6 March, 1642) superseding the King's commissions of 1 4 and 5 Phil, and Mary, c. 2 and t. 3. Penalties were imposed on persons absenting themselves when commanded to muster by the sovereign, or any lieutenant authorized for the same. This was a new officer, the Lord Lieutenant, introduced in this reign as the chief military officer of the crown in every county. For the military purposes ■ of each county the lord-lieutenancy may be regarded as a revival of the office of the old English earl. Thenceforward the sheriff became practically a purely civil officer. By the Army Regulation Act, 1871, (34 & 35 Vict., c. 86, s. 6), the jurisdiction and command of the Lords-Lieutenant of Counties over the Militia and other auxiliary forces have been revested in the Crown, to be exercised through the Secretary of State for War and officers appointed with his advice. 2 1 Jac. c. 25, s. 46. i86 Administrative System. [Ch. v. The ancient lational force :uperseded by itanding army it end of 17th :entury, until revived in 1757 as the militia. lieutenancy by the appointment of fifty-five commis- sioners of array, with power to suppress 'all insurrections, rebellions, and invasions.' This proceeding, however necessary it may have been for the peace and safety of the kingdom, was clearly illegal. After the Restoration an Act of Parliament declared that the sole supreme government of the militia, and of all forces by sea and land, and of all forts and places of strength was, and by the laws of England ever had been, the undoubted right of the kings and queens of England, and that neither House of Parliament could pretend to the same, nor lawfully levy war, offensive or defensive, against the king. 1 By another Act, provision was made for calling together, arming, and arraying the militia, by the king's lieutenants of counties, and for charging the cost upon the landholders in proportion to the value of their estates. 3 But concurrently with the growth of a stand- ing army, the local forces languished for a lengthened period, until revived and remodelled in 1757, in con- sequence of a panic caused by rumours of a French armament, as the national militia'? 1 13 Car. II., st. 1, c. 6. 2 14 Car. II., c. 3. 5 Hallam, Const. Hist. ii. 133, iii. 262. Militiamen were to be chosen by ballot to serve for a limited number of years, but were not to be com- pelled to march out of their own county except in case of invasion or rebellion. In 1829, the practice was commenced and has ever since been continued, of passing an annual Act suspending the Militia ballot, the supply being furnished by voluntary enlistment. But the same Act which tempo- rarily suspends the law empowers the Queen in Council to at once order a ballot should necessity require it. CHAPTER VI. THE SUCCESSION TO THE' CROWN. THE elective character of the old English kingship, The English But with the choice exclusively limited, under all or- elective, both the Conquest. dinary circumstances, to the members of one royal house, J^ff^nnJ^ 61 has been already discussed in- a previous chapter. 1 The Norman Conquest introduced a new dynasty, and a more comprehensive idea of royalty, combining both the national and feudal theories of sovereignty; but it effected no legal change in the nature of the succession to the crown. Election by the National Assembly was still necessary to confer an inchoate right to become king — a right subsequently perfected by the ecclesias- tical ceremony of inunction and coronation. 3 So strongly marked was the elective character of the kingly office that, even after the choice of the nation had been once 1 Supra, pp. 26, 31-33. 2 On the origin of coronation and unction see Stubbs, Const. Hist. i. 144, 145. The ancient English kings were both crowned with a helmet and anointed. ' The ceremony was understood as bestowing the divine ratification on the election that had preceded it, and as typifying rather than conveying the spiritual gifts for which prayer was made. That it was re- garded, as conveying any spiritual character, or any special ecclesiastical prerogative, there is nothing to show : rather from the facility with which crowned kings could be set aside and new ones put in their place, without any objection on the part of the bishops, the exact contrary may be inferred. That the powers that be are -ordained of God, was a truth recognized as a motive to obedience, without any suspicion of the doctrine, so falsely imputed to churchmen of all ages, of the indefeasible sanctity of royalty. The statements of Allen (Prerogative, p. 22), on this point are very shallow and unfair. To attribute the ideas of the seventeenth century to the ages of S. Gregory, Anselm, and Becket seems an excess of absurdity.' — Ibid. p. 146. 1 88 The Succession [Ch. Growth of the doctrine of hereditary right. Accession of William Rufus, A.D. 1087. made, the form of election was again gone through by the clergy and people assembled in the church at the coronation. 1 The doctrine of the strict hereditary de- scent of the crown gradually grew up as the territorial idea of -kingship superseded the personal idea, 3 during the two centuries after the Conquest. As the king of the English developed into the King of England, 3 the feudal lord of the land, the kingdom came to be regarded, to a certain extent, as the private possession of the sovereign, to be enjoyed for his own personal profit ; and at length the feudal lawyers applied to the crown the same principles of strict hereditary right which had already begun to regulate the descent of a private in- heritance. 4 William the Conqueror on his death-bed bequeathed to his eldest surviving son, Robert, the patrimonial Duchy of Normandy. The crown of England he would not venture to bequeath, but left the succession to the decision of God. 5 He expressed, however, his ardent wish that his younger and favourite son William 1 See Freeman, Norm. Conq. iii. 44, 623 ; Maskell, Monumenta Ritualia Ecclesiae Anglicanae, vol. iii. 2 Supra, p. 43. 3 John was the first who called himself ' Rex Angliae ' on his great seal ; all his predecessors had been 'kings of the English.' 4 ' If the descendants of the Conqueror had succeeded one another by the ordinary rule of inheritance, there can be no doubt but that the forms as well as the reality of ancient liberty would have perished. Owing to the necessity, however, under which each of them lay, of making for himself a title in default of hereditary right, the ancient framework was not set aside ; and perfunctory as to a great extent the forms of election and coro- nation were, they did not lose such real importance as they had possessed earlier, but furnished an important acknowledgment of the rights of the nation, as well as a recognition of the duties of the king. The crown, then, continues to be elective : the form of coronation is duly performed : the •oath of good government is taken, and the promises of the oath are exem- plified in the form of charters. . . . The recognition of the king by the people was effected by the formal acceptance at the coronation of the person whom the national council had elected, by the acts of homage and fealty performed by the tenants-in-chief, and by the general oath of alle- giance imposed upon the whole people, and taken by every freeman once at least in his life.' — Stubbs, Const. Hist. i. 338, 339. 6 ' Neminem Anglici regni constituo haeredem, sed aeterno Conditori Cujus sum et in Cujus manu sunt omnia illud commendo : non enim tantum decus hereditario jure possedi.' — Ordericus Vital, vii. 15. vi.] to the Crown. 189 should succeed to the kingship of the English, in much the same way as formerly Eadward the Confessor had re- commended his brother-in-law, Earl Harold. 1 Furnished with a recommendatory letter from his father to Arch- bishop Lanfranc, William Rufus at once hastened to England. Here he was obliged to make a triple pro- mise, — to rule his future subjects with justice, equity and mercy, to protect the rights and privileges of the Church, and to conform to the "Primate's counsels in all things — before Lanfranc would declare in his favour. Having secured this powerful supporter, he was elected king at a meeting of the prelates and barons, in the third week after his father's death, and immediately crowned with the usual solemnities. 2 On the death of William Rufus in the New Forest, on Henry I. the 2nd of August, 1100, his younger brother Henry, A-D " II0 °' being close at hand, and having secured the royal treasure, was hastily elected king the following day at Winchester. 3 But, although the election was the hurried act of a small number of the barons, it was something more than a mere form. The claims of Henry's absent elder brother, Robert the Crusader, were advanced and discussed. They rested not merely on priority of birth, but upon the wishes of the late king, expressed in the arrangement which he had made with Duke Robert, at Caen, in 1091, that each should be heir to the other in case of his dying childless. Ultimately the arguments of the Earl of Warwick gained a decision in Henry's favour ;* and two days afterwards he was crowned at 1 Order. Vital, vii. 15, 16. 3 Eadmer, Hist. Nov. lib. i. p. 13 ; Chron. Sax. 192 ; Lingard, ii. 76. 3 William Rufus ' was slain on a Thursday and buried the next morning ; and after he was buried, the Witan, who were then near at hand, chose his brother Henry as king, and he forthwith gave the bishopric of Winchester to William Giffard, and then went to London.' — Chron. Sax. A.D. 1100. 4 A.D. 1100. ' Occiso vero rege Willelmo. . . . (Henricus) in regem electus est aliquantis tamen ante controversiis inter proceres agitatis atque sopitis annitente maxime comite Warwicensi Henrico.' — Will. Malmes. Gesta Regum, v. § 393. 190 The Succession [Ch. Westminster, by Maurice, Bishop of London, and took the ancient coronation oath of the English kings. 1 In the Charter of Liberties, which he issued at the same time, he announces to the nation his coronation ' Dei misericordia et communi consilio baronum totius regni Angliae.' 3 Stephen. The male line of the Conqueror became extinct on a.d. 1135. t i ie death f Henry I. The late king had endeavoured to secure the crown to his own offspring, first by pro- curing the baronage to do homage and fealty to his son William, and, after the untimely death of the ^Etheling, by exacting, on three separate occasions, an oath from the prelates and barons to acknowledge the Empress Matilda as his successor. This was a stretch of the king's constitutional powers ; and the attempt to bind men's con- sciences more firmly by the triple repetition of the oath would seem to indicate his own distrust. A recommen- dation to the nation was all he could lawfully give, and it was a moot point whether even this recommenda- tion had not been withdrawn on his death-bed. 8 More- over, a woman was incapable of performing the martial duties which then appertained to royalty, and the accept- ance of the Empress Matilda practically meant sub- jection to the rule of her husband, Geoffrey of Anjou — a man obnoxious to the Normans as an Angevin, to both English and Normans as a foreigner. 4 On the third 1 The exact words of the oath, agreeing with the ancient form used at the coronation of King jEthelred II. have been preserved : ' In Christi nomine promitto haec tria populo Christiano mihi subdito. In primis me praecepturum et opem pro viribus impensurum ut ecclesia Dei et omnis populus Christianus veram pacem nostro arbitrio in omni tempore servet ; aliud ut rapacitates et omnes iniquitates omnibus gradibus interdicam ; tertium ut in omnibus judiciis aequitatem et miseri- cordiam praecipiam, ut mihi et vobis indulgeat Suam misericordiam clemens et misericors Deus.' — Maskell, Mon. Rit. iii. 5, 6 ; Select Chart. 95. 2 Ancient Laws and Institutes, 215; 3 Gesta Stephani, p. 7: 4 Cont. Flor. Wig. App. 'Volente igitur Gaufrido comite cum uxore sua, quae haeres erat, in regnum succedere, primores terrae, juramenti sui male recordantes regent eum suscipere noluerunt, dicentes " Alienigena non VI -] to the Crown. 191 occasion when fealty had been sworn to the Empress, her infant son, afterwards Henry II., was joined with her, and was nominated by his grandfather to be king after him. But, as the child was little more than two years old when the throne became vacant by Henry's death, he was clearly ineligible. Such being the position of affairs, the prompt action of Stephen of Blois, Count of Mortain and Boulogne, 1 his personal popularity with the men of London and Winchester, and the great influence of his brother Henry, bishop of Winchester, ensured his election and coronation. 3 To call him an usurper is an abuse of the term. His election, like that of his uncle Henry I., was, indeed, somewhat irregular, few only of the magnates having been present : 3 but the paucity of magnates was counterbalanced by the presence and sup- port of the citizens of London, who might fairly claim to speak on behalf of the commonalty of the realm ;* and the election was shortly afterwards confirmed by the adhesion of the great body of the baronage, clerical and lay. In the second of Stephen's charters his title to the throne is somewhat elaborately set forth : ' Dei gratia, assensu cleri et populi in regem Anglorum electus, et a Willelmo Cantuariensi archiepiscopo et sanctae Romanae ecclesiae legato consecratus, et ab Innocentio regnabit super nos :" initoque consilio, Stephano comiti . . . coronam regni imposuerunt.' — Select Chart, no. 1 Stephen was a younger son of Stephen Count of Blois, by Adela, daughter of William the Conqueror. His wife, Matilda, was the daughter and heiress of Eustace Count of Boulogne, by Mary younger sister of Matilda wife of Henry I. and niece of Eadgar .(Etheling. 2 Will. Malmes. Hist. Nov. i. § n. 3 ' Coronatus est ergo in regem Angliae Stephanus . . . tribus episcopis praesentibus, archiepiscopo, Wintoniensi, Salisberiensi, nullis abbatibus, paucissimis optimatibus. ' — Ibid. 4 ' Cumque . . . cum paucissimo comitatu applicuisset, ad ipsam totius regionis reginam metropolim, maturato itinere, Londonias devenit . . . Majores igitur natu, consultuque quique provectiores concilium coegere, deque regni statu pro arbitrio suo utilia in commune providentes, ad regem eligendum unanimiter conspiravere .... Id quoque sui esse juris, suique specialiter privilegii, ut si rex ipsorum quoquo modo obiret, alius suo pro- visu in regno substituendus e vestigio succederet.' Gesta Stephani, p. 3. See also Chron. Sax. A. D. 1135, and Will. Malmesb. Hist. Nov. i. 11. A.D. IIS4- 192 The Succession [Ch. sanctae Romanae sedis pontifice confirmatus.' 1 Henry I., in a letter to Anselm notifying his accession to the throne, had in like manner declared himself ' nutu Dei a clero et a populo Angliae electus.' 3 Both kings founded their title on the choice of the people. The confirma- tion by the Pope was probably regarded, in Stephen's case, as a tacit condonation of the breach of their oaths by the king, prelates, and barons, who had all sworn to the late King Henry to support his daughter's claim. HeniyJL At the time of Stephen's death, on the 25th Oct., 1 1 54, Henry, Duke of Normandy, was absent from England. He returned on the 8th December, and after an interregnum of nearly two months, was elected and crowned king on the 19th of the same month. 8 He succeeded without opposition, not by hereditary descent, but by virtue of the recent compact of Wallingford, ratified by the assent and homage of the baronage. 4 The kingship was gradually passing out of the elective stage and becoming more feudal in character. Obtain- ing homage from all the feudatories was thought to give a secure title. The election became, as it were, feu- dalized in form, and to a great extent in spirit also. The action of Henry I., in exacting homage and fealty, first to his son William and then to his daughter and grandson, has already been noticed. In a similar manner Stephen, in 1152, endeavoured, unsuccessfully, to secure the recognition of his son Eustace as heir to the throne ; and Henry II. early procured the baronage to do homage, first to his young son William and then to his son Henry. But he took a further and, as it turned 1 Statutes of the Realm — Charters of Liberties, p. 3. 2 See Anselm's Letters, lib. iii.. Ep. 41. 3 'Ab omnibus electus est.' — Rob. de Monte, A.D. 1 1 54. "Anno a partu Virginis MCLIV. Henricus Henrici majoris ex filia olim Impera- trice nepos, post mortem regis Stephani a Normannia in Angliam veniens, haereditarium regnum suscepit, conclamatus ab omnibus ; et consecratus mystica unctione in regem, concrepantibus per Angliam turbis, Vivat Rex.' 1 — Will. Newb. ii. t . 1. 4 Supra, p. 84. vi.] to the Crown. 193 out, most unfortunate step. Not satisfied with the homage of the baronage, which might be regarded as a prospective election, he borrowed from the practice of France and the Empires of the East and West the ex- pedient of crowning the son during the lifetime of the father. The young Henry was twice solemnly crowned ; on the first occasion in 1170, alone, and again, two years later, in company with his wife, daughter of Lewis VII. of France. Under the sinister guidance of his father- in-law he soon assumed the position of a rival and an enemy, rather than of an heir-apparent. It was only a few days before his death that Henry II. Richard I. had recognized his eldest surviving son, Richard Cceur- de-Lion, as his successor. The prelates and barons making no opposition, Richard took the usual corona- tion oaths, and was duly anointed and crowned, with extraordinary splendour and formality, on the 3rd Sept., 1 1 89, in the presence of the assembled 'archbishops, bishops, earls, barons, clergy and a great multitude of knights.' 1 In the Chronicle of Dunstable he is said to have been ' elevated to the throne by hereditary right, after a solemn election by the clergy and people,' 2 words which indicate the mixed notion of right and choice which had then begun to prevail. Richard I. died without issue on the 8th April, 1 199. John, After an interregnum of about six weeks' duration, his AD ' n "' younger brother John, to whom the barons, by Richard's death-bed orders, had already sworn fealty, 3 succeeded to the throne, with ' a questionable title perfected by the election of the nation.'* Even in private inheritances 1 ' Deinde Ricardus Dux Normanniae venit Londonias, et congregatis ibi archiepiscopis et episcopis, comitibus et baronibus et copiosa militum multitudine, 111"° nonas Septembris die Dominica . . . consecratus et coronatus est in regem Angliae.' — Bened. Abbas, ii. 78, 81. 2 Apud Hallam, Midd. Ages, ii. 344. 3 ' Cum autem rex de vita desperaret, divisit Johanni fratri suo regnum Angliae, et fecit fieri praedicto Johanni fidelitates ab illis qui aderant.' — Hoveden, iv. 83. 4 Stubbs, Select Chart. Introductory Sketch, 29. o 194 The Succession [Ch. the doctrine of representation, by which the issue of a deceased elder brother would exclude the succession of the surviving younger brother was as yet unsettled. 1 In the succession to the crown of England the doctrine had never yet obtained. Nearly two centuries had yet to elapse before this stage in the growth of hereditary right was distinctly marked by the unopposed succession of Richard II. as heir to his grandfather. 3 The claim of proximity of blood, which the uncle possessed, was much more obvious in early times than the subtle doctrine of representative primogeniture ; and he was usually far better fitted by age, experience and personal authority to undertake the onerous duties of mediaeval royalty. In England there appears to have been an absence of any feeling in favour of the boy Arthur of Bretagne, son of John's elder brother Geoffrey ; while John's claim was supported by the death-bed recommendation of the late king, the influence of the queen-mother, and the ad- herence of a numerous and influential party among the barons. He was elected king without opposition, and crowned at Westminster on the 27th of May. At his election Archbishop Hubert, according to the account given by Matthew Paris, made a very remarkable speech, in which he declared the crown to be absolutely elective, giving even to the members of the royal stock no pre- ference unless founded on their own personal merit. 3 1 Glanvil, 1. vii. c. 3. 2 ' No opposition was made to the accession of Richard the Second, but there seems to have been a strong notion in men's minds that John of Gaunt sought to displace his nephew. In earlier limes, as the eldest and most eminent of the surviving sons of Edward the Third, John of Gaunt would probably have been elected without any thought of the claims of Young Richard.' — Freeman, Growth of Eng. Const. 213. 3 Matt. Paris (ed. Wats.), p. 197. ' Archiepiscopus stans in medio omnium dixit, "Audite universi. Noverit discretio vestra quod nullus praevia ratione alii succedere habet in regnum, nisi ab universitate regni unanimiter, invocata Sancti Spiritus gratia, electus, et secundum morum suorum eminentiam praeelectus, ad exemplum et similitudinem Saul primi regis irmncti, quem praeposuit Dominus populo suo, non regis filium nee de regali stirpe procreatum ; similiter post eum David Jessae filium ; hunc quia strenuum et aptum dignitati regiae, ilium quia sanctum et humilem ; ut sic qui cunctos in regno supereminet strenuitate, omnibus vi.] to the Crown. 195 The truth of this incident has been doubted by some ; but from the mouth of a zealous partizan the speech is by no means improbable. The archbishop, in fact, merely expressed, in very plain language indeed, what had been the theory of the constitution down to the time of Earl Harold, in whose person the theory was practically exemplified ; and what, if we except the denial of any preference to members of the royal house, had actually been the ordinary practice both before and since the Conquest. 1 In the preamble of a charter issued by John shortly after his accession he was careful to unite both his titles : ' rex jure haereditario, et mediante tam cleri et populi consensu et favore.' 2 There was every probability that a justly incensed Henry HI. nation would have compelled the House of Anjou to yield the throne of England to a new dynasty, when the death of John removed the chief cause of offence, and gave his family one more chance before it was too late. The young Henry was hastily crowned at Gloucester by the legate Gualo ; 3 but he owed his kingdom to the praesit et potestate et regimine. Verum si quis ex stirpe regis defuncti aliis praepolleret, pronius et promptius in electionem ejus est consentiendum. Haec idcirco diximus pro inclyto comite Johanne, qui praesens est frater illustrissimi regis nostri Ricardi jam defuncti, qui haerede caruit ab eo egrediente, qui providus et strenuus et manifeste nobilis, quem nos, invocata Spiritus Sancti gratia, ratione tam meritorum quam sanguinis regii unani- miter elegimus universi. ' 1 ' Matthew Paris supposes that the Archbishop, warned of John's utter faithlessness, and foreseeing the troubles of his reign, wished to impress upon him and upon the people that as an elected king he must do his duty under pain of forfeiture. But the speech of Hubert was probably in itself nothing more than a declaration of John's fitness to be elected, the recollection of which would naturally recur to those who heard it when they found out how unfit he was to reign. The enunciation, however, of the elective character of the royal dignity is of importance whether it be due to the Archbishop or the historian.' — Stubbs, Const. Hist. i. 515. 2 Foedera, i." 76. 3 Ann. Waverl. p. 286. At the coronation only Gualo the Legate, the bishops of Winchester, Worcester, Coventry, and Bath, and the earls of Chester, Pembroke, Ferrers, Wm. Brewer and Savary de Mallack were present : ' reliqui omnes comites et barones sequebantur Ludowicum. Nee multo post Gualo legatus concilium celebravit apud Bristollas in festivitate Sancti Martini, in quo coegit undecim episcopos Angliae et Walliae qui praesentes erant, et alios praelatos inferioris ordinis sed et comites et barones ac milites qui convenerant, Henrico regi fidelitatem jurare.' — Ibid. o 2 1-96 The Succession [Ch. energy and statesmanship of the Regent Pembroke, who, by timely concessions, secured, with much difficulty, the adhesion of the majority of the nation. 1 Arthur of Bre- tagne had left a sister surviving, but she seems never to have been regarded as having a claim to the succession. Edward I. Down to Henry III. inclusive the reign of each king a.d. 1272. - s ^ated f rom hjg coronation, not from the death of his predecessor., The interregnum was always made as short as possible, in consequence of the serious incon- venience resulting from the doctrine that the king's peace was interrupted during a vacancy of the throne. But when the coronation was delayed, as happened in the cases of Henry II., Richard I., and John, who had each been absent in France at the death of his prede- cessor, the regal title was never assumed until the pro- cess of election and coronation had been gone through; 2 Until then they were only entitled ' Dux Normanniae,' or, as Richard I. styles himself in a charter granted be- fore his coronation, ' Dominus Angliae.' 3 Edward I. was the first king who reigned before his coronation. His father, Henry III., died on the 16th Nov., 1272, whilst Edward was absent in Palestine. Four days afterwards the prelates and barons, with four represen- tatives from each county and city, assembled at West- minster, and swore allegiance to Edward as king. His hereditary claim perfected by the fealty of the baronage — the old election in a feudal guise — appears to have been now regarded as conferring the name of king pre- vious to coronation. But the necessity of consent to a king's accession was still preserved. The new king's reign was dated not from the death of his father, but from the day on which the oath of fealty was taken : and in the order for the proclamation of the king's peace, issued in his name by the guardians of the realm, 1 Supra, p. 136. 3 Nicolas, Chronol. of Hist. 272. 3 Archseologia, xxvii. 109. VI.] to the Crown. 197 Edward asserts the crown of England to have devolved upon him ' successione haereditaria ac procerum regni voluntate et fidelitate nobis praestita.' 1 In the proclamation issued on the accession of Ed- ward II. the words referring to the consent of the mag- nates of the realm were omitted. From henceforth hereditary succession was the established rule, and the old civil election dropped out. 3 The ecclesiastical form of election by the clergy and people survived, however, in the coronation service, down to the accession of Henry VIII. ; since whose time a mere recognition by the people is all that takes place. 3 But the strict rule of hereditary succession has always been liable to ex- ception. Parliament has constantly claimed and exer- cised the right to settle the succession to the crown. 4 Edward II. was formally deposed (1327), and his young son Edward chosen in his place. On the deposition of Richard II. (1399), the worthiest member of the royal Edward II. A.D. I307. Hereditary succession established But subject to the paramount right of Parlia- ment to re- settle the succession. House of Lancaster. 1 Foedera, i. 497. 2 From the accession of Edward II. to the deposition of Henry VI. the regnal years of each king (with the exception of Edward III. and Henry IV.) are reckoned from the day following the death of his pre- decessor. Since then the throne has never been regarded as vacant by death, but as descendible at the moment of the predecessor's decease to his successor. 3 The form for the coronation of Henry VIII., drawn up by that king himself, has been preserved. Hereditary right and elective right are set forth in equally strong terms. Prince Henry is described as ' rightfull and undoubted enheritour by the lawes of God and man,' but also as 'electe, chosen and required by all the three estates of this lande to take uppon hym the said coronne and royall dignitie. ' The assent of the people is asked thus : ' Woll ye serve at this tyme, and geve your wills and assents to the same consecration, enunction and coronacion? Whereunto the people shall say with a grete voyce, Ye, ye, ye ; So be it ; Kyng Henry, King Henry. ' — Maskell, Mon. Ritual. . iii. 73 j Freeman, Norm. Conq. iii. 622. 4 ' Hereditary succession in monarchical states is nothing more than an expedient in government founded in wisdom, and tending to publick utility : and consequently whenever the safety of the whole requireth it, this expedient, like all rules of merely positive institution, must be subject to the controul of the supreme power in every state. . . . Title by descent was always esteemed by the legislature a wise expedient in govern- ment ; but in cases of necessity, it was never thought to confer an inde- feasible right ; because that would have been to defeat the end for the sake of the means' — Sir Michael Foster, (one of the judges of the King's Bench,) Discourses on Crown Law, p. 405 (ed. 1792). ig8 The Succession [Ch. The crown entailed on Henry IV. and his issue. house was elected, as of old, to fill the throne, to the exclusion of the nearest lineal heir, who was a minor. The accession of Richard II. (1377) had been, as we have seen, the first instance in the succession to the crown of England, where the claims of representative primogeniture were preferred to those of proximity of blood. The next lineal heir, on the deposition of Richard II., was the child Edmund Mortimer, Earl of March, the great-great-grandson of Edward III., through Philippa, daughter of Lionel Duke of Clarence, third son of that king. Henry IV., the elect of the people, was the son of John of Gaunt, and grandson of Edward III., in the prime of life, and distinguished in both arms and council. The crown was entailed by Act of Parlia- ment 1 on Henry IV. and his issue, and the House of Lancaster reigned for more than sixty years House of York, by a good parliamentary title. The House of York, by whom the doctrine of indefeasible hereditary right was first promulgated, in order to justify their claims to the throne, 2 owed their success far less to that doctrine than to their intense personal popularity, their descent in the male line from Edward III., and the dislike which Henry VI. and his consort Margaret had excited amongst the people. The War of the Roses was not simply a dynastic contest. It arose from various causes, eccle- siastical, social, and political. The House of York placed itself at the head of the popular party in resisting the ecclesiastical and aristocratic policy with which the House of Lancaster had ultimately become identified, and by so doing gained a degree of power and influence which no mere genealogical claim would 1 7 Henry IV., c. 2. 2 ' The crown having been entailed by Act of Parliament (7 Henry IV. c. 2) on Henry IV. and his issue, the House of York saw itself totally ex- cluded, unless its pretensions could be supported by a title paramount to the power of Parliament. Proximity in blood was its only refuge, and to that the partizans of that house resorted.' — Sir Michael Foster, Crown Law, P- 4°3- VI.] to the Crown. 199 have afforded it. The right of Parliament to decide the question of succession was tacitly admitted by Richard Duke of York himself, when, in 1460, he personally urged his claim before that assembly, and accepted a compromise confirming the crown to Henry VI. for life, and acknowledging Duke Richard as heir apparent in place of Henry's son. 1 After the battle of Wakefield Deposition of (23 Dec, 1460), where Richard of York was slain, King ^ e e c n t £ n V f and Henry was regarded by the adherents of the White Edward IV. Rose as having forfeited the crown through his breach of the parliamentary compromise. He was deposed by an assembly of prelates and barons at London ; and Edward, son of the late Duke of York, was elected king, first by the select assembly, and afterwards, on the same day, by a popular vote of soldiers and citizens assembled in St. John's fields. 2 1 Rot. Pari. v. 375. 2 ' After the lordes had considered and weyghed his [Edward's] title and declaracion, they determined by authoritie of the sayd counsaill, for as much as Kyng Henry, contrary to his othe, honor and agreement, had violated and infringed the order taken and enacted in the last Parliament, and also because he was insufficient to rule the Realme, and inutile to the common wealth, and publique profite of the pore people, he was therefore by the aforesayed authoritie, deprived and deiected of all kyngly honor, and regall souereigntie. And incontinent, Edward erle of Marche, sonne and heyre to Richard duke of Yorke, was by the lordes in the sayd counsaill assembled, named, elected, and admitted, for kyng and gouernour of the realme : on which day, the people of the erles parte, beyng in their muster in sainct Ihons felde, and a great number of the substanciall citezens there assembled to behold their order : sodaynly the lord Fawconbridge, which toke the musters, wisely declared to the multitude the offences and breaches of the late agremente done and perpetrated by Kyng Henry the VI. and demaunded of the people, whether they woulde have the sayd Kyng Henry to rule and reigne any longer over them : To whome they with a whole voyce aunswered, nay, nay. Then he asked them, if they would serue, love, and obey, the erle of March as their earthly prince and souereign lord. To which question they aunswered, yea, yea, crieng King Edward, with many great showtes and clappyng of handes.' After at- tending a Tc Deum at St. Paul's Edward proceeded to Westminster Hall and sitting with the sceptre royal in his hand, in the presence of a great number of people there assembled, ' his title and clayme to the croune of England was declared by -ii maner of ways ; the firste, as sonne and heyre to duke Richard his father, right enheritor to the same : the second, by aucthoritie of Parliament and forfeiture committed by Kyng Henry. Whereupon it was agayne demaunded of the commons, if they would -admitte and take the sayd erle as their prince and souereigne lord, 200 The Succession [Ch. Richard III. A.D. 1483. The crown entailed by Parliament on his issue. Henry VII. A.D. 1485. The crown is entailed by Pan liament on him and his issue. Whatever may be thought of the claim of Richard III., 1 it appears certain that his accession was in accordance with the wishes of the main body of the nation, and, like Edward IV., he was acknowledged by a show of popular election. 3 The dangers of a long minority, and a wide-spread jealousy of the Woodville family, would seem to have caused the claims of the uncle to prevail, for the last time in English history, over those of a boy nephew. His first and only Parliament declared Richard ' undoubted King of this realm of England, as well by right of consanguinity and inheritance as by lawful election, consecration, and coronation ; ' and en- tailed the crown on the issue of his body, particularly his son Edward Prince of Wales, whose succession the members of both Houses bound themselves by oath to uphold. 3 Henry Tudor, who, in default of a legitimate heir of the house of Lancaster, was recognized, without any legal hereditary claim, as the head of the Lancastrian party, obtained the crown partly by the victory at Bos- worth (22 August, 1485), but mainly by the general acquiescence of the nation. His best and only legal title was the Act of Parliament by which it was ' ordained and enacted by the assent of the lords and at the request of the commons that the inheritance of the crowns of England and France, and all dominions appertaining to them, should remain in Henry VII. and the heirs of his body for ever and in none other.' * ' Words,' remarks which al with one voice cried, yea, yea.' — Hall, p. 253. Hall's Chronicle was published in 1542. The author was a scholar of Eton and .recorder of London. He died in 1547. Although not a contemporary authority much of his information was derived from the recollections of his grandfather David Halle, a constant attendant on Richard Duke of York. 1 Richard III. founded his claim on (1) an alleged pre-contract of marriage of Edward IV. which rendered his issue by 'dame Elizabeth Gray ' illegitimate ; and (2) the attainder of the Duke of Clarence, by which his children were debarred from the succession. — Lingard, v. 249. 2 Hall, 372. 3 Rot. Pari. vi. 240, 241 ; Lingard, v. 260. * I Hen. VII. 0. 1. vi.] to the Crown. 201 Hallam, ' studiously ambiguous, which, while they avoid the assertion of an hereditary right that the public voice repelled, were meant to create a parliamentary title, before which the pretensions of lineal descent were to give way.' 1 Henry VII. was, in fact, made by Par- liament the stock of a new dynasty, 3 to the exclusion of the whole house of York ; but the hereditary claims of that house were happily merged in the parliamentary title of the Tudors by the subsequent marriage of the king with the daughter of Edward IV. In the reign of Henry VIII. the succession to the Parliamentary crown was repeatedly altered by legislative enactment, the^cession (1) By the Royal Succession Act of 25 Henry VIII., in the reign of c. 22, passed on the occasion of the king's marriage with „ „' Anne Boleyn, the crown was entailed on the king's issue c. 22. male, ' and for default of such sons of your body begotten, that then the imperial crown shall be to the issue female between your majesty and your most dear and entirely beloved wife Queen Anne begotten, that is to say, first, to the eldest issue female, which is the Lady Elizabeth, now Princess . . . and so from issue female to issue female, and to the heirs of their bodies, one after an- other, by course of inheritance, according to their ages, as the crown of England hath been accustomed and ought to go, in cases when there be heirs female to the same.' (2) Subsequently to the king's marriage with Lady z8 Henry viii Jane Seymour, Parliament, in the plenitude of its sovereign authority, passed an Act 3 by which, after declaring the king's marriage with Queen Katherine void, and his mar- riage with Anne Boleyn likewise void, and the issue of both marriages illegitimate ; the crown was entailed on 1 Const. Hist. i. 8. 2 The words of the Act settling the crown upon Henry VII. have been literally carried out, every subsequent sovereign of England having been a descendant of his body. 3 28 Hen. VIII. c. 7. 202 The Succession [Ch. the sons of the king and Queen Jane successively and the heirs of their bodies, with remainder to the king's sons by any future wife, and on failure of such issue, to the daughters of the king and queen successively and their issue. And after reciting that if the king should die without lawful issue, no provision having been made in his lifetime touching the succession, the realm in that case would be destitute of a lawful governor, ' or else percase incumbered with such a person that would covet to aspire to the same, whom the subjects of this realm shall not find in their hearts to love, dread, and obediently serve as their sovereign lord,' x the Act proceeds to be- The king em- stow upon the king the extraordinary power, in default Hamen e t d to y ^^ ° f lawful issue of his hod y> to limit the Cr0wn > h y letterS limit the sue- patent or by last will, to such person or persons in pos- kHerspatent or session or remainder and after such order or condition by his last will. as j^ snou id judge expedient. Not even a preference for persons of royal descent was reserved, but it was declared that the persons so to be appointed should enjoy the crown ' as if they had been lawful heirs to the same or as if the crown had been given and limited to them plainly and particularly by special names and suf- ficient terms by full and immediate authority of the High Court of Parliament.' 35 Henry VIII. (3) By a later Act, 2 after reciting the previous statute, Henry's two daughters, Mary and Elizabeth, were put into the entail next after the lawful issue male or female of the King and Prince Edward, but subject to such con- ditions as the king should, by letters patent or his last 1 ' This seemeth to be pointed at James V. of Scotland, who was at this time the next in succession upon the failure of the king's issue : not barely as being descended from the union of the two roses, but under the par- liamentary entail in favour of Henry VII. and the heirs of his body made before that union took place. . . . Notwithstanding the near relation the house of Stuart stood in to the crown of England, Scotland was, during all King Henry's reign, the same detested enemy it had been for ages past : and a national prejudice operated in both kingdoms as strongly as ever. '— Sir M. Foster, Crown Law, 406. 2 35 Hen. VIII. c. 1, strongly enforced by 1 Edw. VI. c. 12. * VI -] to the Crown. 203 will, appoint. In the event of their failing to perform the conditions, or dying without issue, the king was again empowered to limit the succession as by the last Act. The second Succession Act had declared Mary and Elizabeth to be illegitimate. The third, upon a sup- position of their illegitimacy, now postponed them even to all the lawful issue female of the king : but yet in default of lawful issue of the king and Prince Edward, it limited the crown to the illegitimate daughters of the king and their issue in preference to all the other descendants of Henry VII. 1 In exercise of the power given to him by these Acts Henry VIII. of Parliament, 3 Henry VIII. devised the crown, in ^£ the remainder, on failure of issue of his three children, to the heirs of the body of his younger sister, Mary Duchess of Suffolk, thus postponing the descendants of his elder sister, Margaret Queen of Scots. 3 Edward VI., Mary, and Elizabeth, succeeded each other on the throne in strict accordance with, and by virtue of, the parliamentary entail. On the accession of Queen Act passed on Mary an Act was passed (1 Mary, sess. 2, c. 1.) repealing * e acc ^ sl0n of as far as concerned herself all the acts which stood in the way of her legitimacy, and declaring the marriage of her father and mother valid, the sentence of divorce a nullity, and that she was the legitimate issue of the king. On the Queen first notice of Mary's death Elizabeth was proclaimed, «ti^ betl1 S 1 The legitimacy of each of the daughters of Henry VIII. was liable to dispute, and it is impossible, on any theory, to support the legitimacy of both. Their illegitimacy was however taken out of the ordinary category by the fact that the mother of each was acknowledged as a lawful wife at the time of the daughter's birth. 2 ' The full and immediate authority of the legislature in the matter of the succession must have been presupposed as a matter past all dispute ; otherwise a delegation of that authority would have been no better than an idle, vain and ineffectual parade, an insult upon common sense and an affront to the king himself. ' — Sir Michael Foster, Crown Law, 410. 3 On the validity of • the execution of Henry VIII. 's will, see Hallam, Const.'Hist. i. 34, 288, 294, and Lingard, Hist. Eng. vi. 213. 201 The Succession [Ch. Act passed on her accession. t is made reason, by a tatute of Eliza- eth, to deny lie power of Queen and Parliament to limit the succession. by order of the House of Lords then sitting, true and lawful heir to the crown according to the act of succession of Henry VIII. 1 Whatever other title the Queen might be presumed to have, her parliamentary title was clearly the one on which she relied. Discarding the precedent set by her sister, she suffered all altercation about the marriage of her father and mother, and the subsequent divorce, to sink into oblivion. The Act passed on her accession, though vaguely asserting in general terms her descent from the blood royal, and that she was as fully entitled as her father or brother had been (which was perfectly true, since each reigned by a good parlia- mentary title), declared in guarded and limited terms that she was as fully entitled as her sister was at any time since the statute of the $$th year of King Henry VIII? So completely established, in the time of Elizabeth, was the power of Parliament to alter the line of succes- sion, that it was expressly enacted by statute ' That if any person during the Queen's life shall affirm or main- tain that the common law of the realm, not altered by Parliament, ought not to direct the right of the crown of England, or that the Queen, with the authority of Parliament, is not able to make laws of sufficient force to limit and bind the crown, and the descent, limitation, inheritance and government thereof, shall be judged a traitor, and shall suffer and forfeit as in cases of high treason.' 3 1 Sir M. Foster, Crown Law, 412. 2 I Eliz. c. 3. ' This declaration so guarded and limited seemeth strongly to imply either that in the judgment of Parliament Queen Mary had no title antecedently to that act (35 Hen. VIII.), or that Elizabeth, having no other, it was thought but decent to put the sisters upon an equal footing, as former Parliaments had done. — Sir M. Foster, Crown Law, 412. 3 13 Eliz. c. 1. This clause as to the power of Parliament in the matter of the succession was in substance and with almost identical words, revived and re-enacted by the 4th of Anne, c. 8, and the 6th of Anne, c. 7. Another section of the act of Elizabeth enacted that whoever during the life of the Queen should by writing or printing declare before the same by Act 'of Par- VI.] to the Crown. 205 On the death of Elizabeth, the council of the late queen James I. proclaimed as her successor James, King of Scots, the heir of Margaret, elder sister of Henry VIII. As the claim of the house of Suffolk under the will of Henry VIII., and the Acts of Parliament authorizing him to dis- pose of the crown, was legally indisputable, the first king of the house of Stewart was in the eye of the law an usurper. 1 But the proclamation of the council, which in itself could give no right, was voluntarily ratified by the popular voice ; 2 and after the'ceremony of his coronation had been performed, an Act of his first Parliament 3 made him, what he had not up to that time been, a legitimate sovereign. James I. was the twenty-third occupant of the English PjrfeasMe throne since the death of William the Conqueror. Of hereditary right, that number, twelve had succeeded to the throne not being legal heirs of the Conqueror, according to the doctrine of primogenitary succession, and three more, although legal heirs, had not succeeded in the regular course of descent.* Edward II. and Richard II. had liamenl established and affirmed that any person in particular except the issue of her Majesty, is or ought to be right heir or successor to the Queen, should for the first offence suffer imprisonment for a year and forfeit half his goods, and for the second incur the penalties of praemunire. Neither the claims of the House of Suffolk nor of the House of Stewart were affected by this section. It merely shows, remarks Sir Michael Foster, ' that the eventual right of any individual, though grounded on common or statute law, was judged a question too big for ordinary discussion and proper only for the discussion of the legislature.' 1 ' There is much reason to believe that the consciousness of this defect in his parliamentary title put James on magnifying, still more than from his natural temper he was prone to do, the inherent rights of primogenitary succession as something indefeasible by the legislature ; a doctrine which, however it might suit the schools of divinity, was in diametrical opposition to our statutes.'— Hallam, Const. Hist. i. 294. 2 ' What renders it absurd to call him [James] and his children usurpers ? He had that which the flatterers of his family most affected to disdain — the will of the people ; not certainly expressed in regular suffrage or declared election, but unanimously and voluntarily ratifying that which in itself could surely give no right, the determination of the late queen's Council to proclaim his accession to the throne.' — Hallam, Const. Hist. i. 288. 3 1 Jac. I. c. I. 4 The twelve not primogenitary heirs of the Conqueror were : William II., Henry I., Stephen, John, Henry III., Henry IV., Henry V, Henry VI., Richard III., Henry VII., Mary, Elizabeth. The three who although 206 The Succession LCh. Revolution of 1688. Deposition of James II. been solemnly deposed by Parliament, and on the latter occasion the throne itself was declared to be vacant. 1 The line of succession had on several occasions been altered, as we have seen, by the authority of Parliament Yet in the teeth of these facts, the lawyers and divines of the Stewart period laboured to establish the doctrine of an indefeasible hereditary right to the crown. But even the ultra : royalist and reactionary House of Com- mons under Charles II. attempted to assert the right of Parliament to alter the succession by twice passing, in 1679 and 1680, the Bill for the Exclusion of the Duke of York from the throne. At length in 1688, all doubts as to the power of Parliament to regulate the succession as it should think fit, were finally set at rest by the 'glorious Revolution ' which overturned the Stewart dynasty, and once more set an elective king upon the throne. Both houses of the Convention Parliament con- curred in a resolution ' That King James II. having endeavoured to subvert the constitution of the king- dom, by breaking the original contract between king and people, 3 and having by the advice of Jesuits and other wicked persons, violated the fundamental laws, and withdrawn himself out of the kingdom, has abdi- cated the government, and that the throne is thereby vacant.' 3 In the Declaration of Rights, the final reso- lution to which both houses came on the 13th of primogenitary heirs did not succeed in the regular course of descent were : Henry II., Edward III., Edward IV. To these latter we ought to add James himself: for since, Mary and Elizabeth had both been declared ille- gitimate by Act of Parliament, and since in any case one of them must have been so, the hereditary right of James, as well as that of his mother Mary Queen of Scots, had, in the view of the upholders of indefeasible primogenitary succession, been postponed to a mere parliamentary title. 1 ' Ut constabat de praemissis, et eorum occasione, regnum Angliae, cum pertinentiis suis, vacare.' — Walsingham, ii. 237. 2 The 'original contract' between king and people which is here solemnly asserted, is as utterly devoid of historic foundation as the op- posite principle of 'divine right,' but, in the words of the late Dr. Whewell, ' it may be a convenient form for the expression of moral truths.'— See Maine, Ancient Law, p. 347. 3 Commons' Journals ; Pari. Hist. Settlement. vi.] to the Crown. 207 February, it was determined ' That William and Mary, Election of Prince and Princess of Orange be, and be declared, ™| 1 ia e nof King and Queen of England, France, and Ireland, and the dominions thereunto belonging, to hold the crown and dignity of the said kingdoms and dominions to them the said Prince and Princess, during their lives and the life of the survivor of them ; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess during their joint lives : and after their decease the said crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said Princess ; for default of such issue, to the Princess Anne of Denmark, and the heirs of her body ; and for default of such issue, the heirs of the body of the said Prince of Orange.' l Queen Mary died in 1694 without issue, and William Act of in accordance with the Act for settling the succession to ±he crown became sole ruler. On the death, in 1700, of the young duke of Gloucester, son of the Princess of Denmark, the manifest probability that the entail es- tablished would come to an end at the decease of the 1 This declaration was afterwards embodied and confirmed in the Bill of Rights (1 Will, and Mar. sess. 2, c, 2) with the further important re- striction that all persons who shall profess the Popish religion or marry a Papist, shall be excluded and for ever incapable to inherit, possess or enjoy the crown and government of this realm ; and in all such cases the people shall be absolved from their allegiance, and the crown shall descend to the next Protestant heir. Hallam (Const. Hist. iii. 99) thus sums up the changes effected by the Convention Parliament : It ' pronounced, under the slight disguise of a word unusual in the language of English law, that the actual sovereign had forfeited his right to the nation's allegiance. It swept away by the same vote the reversion of his posterity and of those who could claim the inheritance of the crown. It declared that, during an interval of nearly two months, there was no King of England ; the monarchy lying, as it were, in abeyance from the 23rd of December to the 13th of February. It bestowed the crown on William, jointly with his wife, indeed, but so that her participation in the sovereignty should be only in name. It postponed the succession of the princess Anne during his life. Lastly, it made no provision for any future devolution of the crown in failure of issue from those to whom it was" thus limited, leaving that to the wisdom of future parliaments.' 208 The Succession [Ch. king and the Princess Anne, rendered it again necessary that parliament should exercise its power of settling the succession. Passing over the children of James II. ; the Duchess of Savoy, daughter of Henrietta, Duchess of Orleans ; and the elder children of Elizabeth, wife of the Elector Palatine ; Parliament selected the Electress Sophia of Hanover, the nearest heir who professed the Protestant faith, as the root of a new royal line. By the Act of Settlement, 1 all prior claims of inheritance, save the existing entail in favour of the issue of the Princess Anne and of King William being set aside and annulled, the crown was settled on the ' Princess Sophia, Electress and Duchess Dowager of Hanover, daughter of the most excellent Princess Elizabeth, late Queen of Bohemia, daughter of our late sovereign lord King James the First of happy memory,' and 'the heirs of her body being Protestants.' Since the Act of Settlement, the crown of England has been more strictly hereditary than it ever was under the Plantagenets or Tudors. But its hereditary character flows not from them, but directly and wholly from the will of the people as expressed in the Act of Settlement. In that statute, Parliament, for the last time in our history, exercised its paramount right to settle the succession r to the crown ; a right founded not only in reason, but in the ancient principles of our constitu- tion, as shown by long usage and an uniformity of principle and practice for many ages prior to the Revolution. 2 1 12 and 13 Will. III. c. 2. 2 ' Widely as the hereditary kingship of our latest times differs in out- ward form from the hereditary kingship of our earliest times, the two have points of likeness which are not shared by kingship in the form which it took in the ages between the two. . In our earliest and in our latest system, the King exists for the sake of the people ; in the intermediate times it sometimes seemed that the people existed for the sake of the King. In our earliest and in our latest system, the King is clothed with an office, the duties of which are to be discharged for the common good of all. In the intermediate times it sometimes seemed as if the King had been made master of a possession, which was to be enjoyed for his personal pleasure and profit. vi.] to the Crown. 209 In the intermediate times we constantly hear of the rights and powers of the Crown as something distinct from, and almost hostile to, the common rights of the people. In our earliest and in our latest times, the rights of the Crown and the rights of the people are the same, for it is allowed that the powers of the Crown are to be exercised for the welfare of the people by the advice and consent of the people or their representatives Our present Sovereign reigns by as good a right as Alfred or Harold, for she reigns by the same right by which they reigned, by the will of the people, embodied in the Act of Parliament which made the Crown of Alfred and Harold hereditary in her ancestress. And, reigning by the same right by which they reigned, she reigns also for the same ends, for the common good of the nation of which the Law has made her the head. And we can wish nothing better for her kingdom than that the Crown which she so lawfully holds, which she has so worthily worn among two generations of her people, she may, like Nestor of old, continue to wear amid the well-deserved affection of a third.' — Freeman, Growth of Eng. Const. 150, 151. CHAPTER VII. Witenagem&t. ORIGIN OF PARLIAMENT. A ' commune ENGLAND has never been without a National concilium regni ' Assembly, a 'commune concilium regni,' by whose existed?^ ' counsel and consent ' the work of government has been carried on. But, whilst retaining its corporate identity, the name, powers and constitution of this assembly have varied from time to time. The nature and functions of the old English Witenagem6t have been already suffi- ciently described. 1 After the Norman Conquest, the Witan still continued to be summoned, as before, to give counsel and consent on the promulgation of a new law, or the imposition of a new tax ; but, owing alike to the infrequency of legislation under the Norman kings, and to the predominance of the royal power, the legisla- tive functions of the assembly must have been formal, rather than real. As the feudal principle gradually acquired predominating influence in every department of the state, the Meeting of the Wise almost insensibly changed into the CuriaRegis, the court of the king's feudal vassals. All immediate tenants of the Crown by mili- tary service, however small might be their holdings, had originally a personal right to be summoned to the Com- mon Council of the Realm whenever the king wished to impose any extraordinary aid, and probably on other occasions also. The bishops and principal abbots con- Curia Regis. Its constitution. 1 Supra, pp. 29-34. vil.] Origin of Parliament. 211 tinued to be summoned without any intermission, though their ancient character of witan appears to have become gradually merged in that of feudal barons. The earls also, who were ' at all times and without exception indis- putably noble,' l never lost their right to attend. But as regards all other military tenants in capite, although con- stitutionally members of the ' commune concilium,' it is highly probable that the king early assumed the power of selecting the persons to whom writs of summons should be addressed. 2 Thus the same indefiniteness and uncertainty which had characterized the constitution of the Witenagemdts continued as a feature of the feudal Great Councils. With the exception of the famous Gemdt of Salisbury, in 1086, which was attended not only by the witan, but by all the landowners of the kingdom, 3 the complete assembly of all the tenants-in- chief can hardly ever have taken place. 4 Still the per- sonal right always subsisted ; and it was the infringe- ment of this right, when councils were summoned for the purpose of granting extraordinary aids, which led to the provision in John's Magna Charta, by which the king promised on such occasions to summon all tenants in capite, the archbishops, bishops, abbots, earls, and ' majores barones ' individually, and the rest generally through the sheriff. This difference in the mode of sum- mons is evidence of the inequality at that time existing among the tenants-in-chief. Though formally recog- nized by Magna Charta, the right of the inferior tenants- 1 Hallam, Midd. Ages, iii. 235. 2 Report of Lords' Committee on Dignity of a Peer, 1819. 3 See supra, p. 55. A similar general muster of landowners was held by Henry I. at Salisbury in 11 16. 4 ' Henry II. made the national council a different thing from what Henry I. had left it Its composition was a perfect feudal court : archbishops, bishops, abbots, priors, earls, barons, knights, and free- holders. . . . That towards the end of his reign he found it necessary to limit the number of lower freeholders who attended the councils is very probable ; the use of summonses, which prevailed from the first year of the reign, gave him the power of doing this.' — Stubbs, Select Chart. Intro- duction, 22. p 2 212 Origin of Parliament. [Ch. The ' majores barones.' in-chief to attend the National Council must soon have become impracticable through the increase in their numbers (arising from the subdivision of tenures), their comparative poverty, and the personal inconvenience of attending at long distances from home. Thus the ancient National Assembly gradually ceased to be any- thing more than an assembly of the ' greater barons,' and ultimately developed into a hereditary House of Lords, the Upper House of the National Parliament. 1 The Hereditary hereditary character of the House of Lords — now long House of Lords, regarded as fixed and fundamental — accrued slowly and undesignedly, as a consequence of the hereditary descent of the baronial fiefs, practically inalienable, in right of which summonses to the council were issued. But, in addition to the barons by tenure, the king had always the right, and, at least as early as the reign of Edward I. had acquired the habit,' of summoning other persons who held nothing of the crown by barony. It is certain that a summons was not at first regarded as conferring ' a hereditary, or even a lasting personal right ; ' 2 but by 1 The Lords' Committee (p. 314), speaking of the 15th of Edward III., say : ' Those who may have been deemed to have been in the reign of John distinguished as majores barones, by the honour of a personal writ of sum- mons, or by the extent and influence of their property, from the other tenants-in-chief of the crown, were now clearly become, with the earls and the newly-created dignity of duke, a distinct body of men denominated peers of the land, and having distinct personal rights ; while the other tenants-in-chief, whatsoever their rights may have been in the reign of John, sunk into the general mass. ' 2 Freeman, Growth of English Constitution, 61 ; Hallam, quoting Prynne's 1st Register, p. 232, says : ' No less than 98 laymen were sum- moned once only to Parliament, none of their names occurring afterwards ; and 50 others, two, three, or four times. Some were constantly sum- moned during their lives, none of whose posterity ever attained that honour.' For the obscure history of the early baronage, see generally Hallam, iii. 121, 234. Professor Stubbs has briefly summed up the suc- cessive changes in the constitution of the baronage, the chronology of which is far from easy to fix. Originally including all barones — that is, all homagers holding directly of the crown — the baronage was limited : (1) to all who possess a united ' corpus ' or collection of knights' fees held under one title ; (2) to those who, possessing such a barony, are summoned by special writ ; (3) to those who, whether entitled by such tenure or not, have received a special summons ; (4) and finally to those who have become by creation or prescription entitled hereditarily to receive such a summons. — Select Chart. Introductory Sketch, 37. vii.] Origin of Parliament. 213 the time that the custom arose of creating peerages by letters patent (the first instance of which was the creation of Sir John Holt as Lord Beauchamp of Kid- derminster, in the 10th of Richard II.), the hereditary- nature of the baronage, irrespective of tenure, may be re- garded as the established rule. 1 Still, the rule has never been without exception. The presence of the bishops in spiritual peers, the House of Lords is at once an exception to the prin- ciple of hereditary right, and a continuing witness of the times when such right had no existence. Down to the suppression of the monasteries by Henry VIII., in 1539, while the abbots and priors sat with the bishops, the spiritual life-peers actually outnumbered the lords tem- poral ; and even after the abbots and priors had been removed, the bishops alone formed about one-third of the House of Lords. 2 Independently, however, of the Lay peerages spiritual peers, several precedents occur between the reigns of Richard II. and Henry VI. of the creation of lay peerages for life only ; but since the latter date, ' for upwards of four hundred years there is no instance on record in which any man has been admitted to a seat in the House of Lords as a peer for life.' 3 As the ordinary tenant-in-chief became gradually Ideas of election 1 Lord Redesdale, in the L'Isle peerage case, gave his opinion that from the 5th year of Richard II. a writ of summons, with sufficient proof of having . sat by virtue of it in the House of Lords, created a hereditary peerage. — Nicolas's Case of Barony of L'Isle, 200. 2 Sir Erskine May, Constitutional History, i. 299. By the profuse creation of peers in recent time, the relative proportion of the bishops in the House of Lords has been reduced from one-third to less than one-fifteenth. — Ibid. 3 Ibid., i. 292. The attempt in 1 856 to re-introduce life-peerages in the person of L_ord Wensleydale, was resisted by the lords, who referred the patent to a Committee of Privileges, and agreed, in accordance with the report of that committee, ' that neither the letters patent, nor the letters patent with the usual writ of summons in pursuance thereof, can entitle the grantee to sit and vote in Parliament. ' In consequence of this decision a new patent was issued creating Lord Wensleydale a hereditary peer of the realm. The resolution of the lords, remarks Sir Erskine May, ' has since been generally accepted as a sound exposition of constitutional law. Where institutions are founded upon ancient usage, it is a safe and wholesome doctrine that they shall not be changed, unless by the supreme legislative authority of Parliament' — Ibid. i. 298. 214 Origin of Parliament. [Ci-i. and representa- tion familiar to the nation. First historical instance of the summons of representatives to a National Council. merged in the general mass of freeholders, his right of attending the 'commune concilium' in person was ex- changed for the right of electing representatives, who in his name consented to the imposition of taxes. The ideas of election and representation, both separately and in combination, had been familiar to the nation, in its legal and fiscal system, long before they were applied to the constitution of the National Parliament. The English kingship was always in theory, and to a great extent in practice, elective. The bishops and abbots were sup- posed to be elected by the clergy, of whom they were the representatives. In the local courts of the hundred and the shire the reeve and four men attended as repre- sentatives from each township ; and the twelve assessors of the sheriff represented the judicial opinion of the whole shire. Subsequently, in the system of recognition by jury, as established by Henry II., the principles- of election and representation were successively applied to almost every description of business — fiscal, judicial, and administrative. In the four sworn knights summoned by the sheriff to nominate the recognitors of the Grand Assize we have, probably, the first germ of a county re- presentation. 1 The first historical instance of the extension to a National Council of the representative machinery which had long existed in the folkmoot of the shire is afforded by the Council held at St. Alban's on August 4th, 1213, after John's submission to the Pope, and during his dispute with the Northern barons on the question of foreign service. 2 This assembly was attended not only by the bishops and barons, but also by the re- presentative reeve and four men from each township on the royal demesne. The immediate business to be transacted was the assessment of the amount due by 1 Stubbs, Select Chart. Introductory Sketch, 24 ; and see Palgrave, Eng. Commonwealth, ch. viii. 3 See mpra, p. 105. vii.] Origin of Parliament. 215 way of restitution to the church ; but several other matters of national importance appear to have been dis- cussed by the assembly. The justiciar, Geoffrey Fitz- Peter, submitted to the whole body the recent promise of good government made to Archbishop Langton by the king on receiving absolution Ut Winchester, about a fortnight previously ; referred them to the laws of Henry I. as the standard of what that good government should be ; and issued an edict commanding the sheriffs and other royal officers, on penalty of life and limb, to cease from their illegal exactions. 1 Four instances of summoning representatives of the County repre- shires to the National Council are met with prior to De Ration m r Parliament : Montfort's celebrated Parliament of 1265, which is some- four instances times erroneously spoken of as the ' origin of popular re- Montfort's 6 presentation.' 3 (1.) The first occurred during the contest Parliament of between John and the barons, when both sides found it necessary to seek the support of the free tenants of the counties. In 12 13 (15th of John) the king, by (i.) 7th Nov., his writ to the sheriffs, directed four discreet knights knights from of each shire to be sent to him at Oxford ' ad each county , . , . j ... . ., T-, • summoned to loquendum nobiscum de negotns regni nostn. 1 here is Oxford. no indication on the face of this writ whether the four knights were to be elected by the county or returned at the discretion of the sheriff ; but as there already existed a recognized machinery for the election, in the county court, of four knights to nominate the recognitors in civil suits and the grand jury for the presentment of criminals, we may reasonably conclude that the ac- customed machinery was now made use of for the novel purpose of county representation in the general assembly. It is probable also that the 14th clause of John's charter, which promised that the minor barons should be sum- 1 Matt. Paris, p. 239, A.D. 1213. 2 E.g., Hallam, speaking of De Montfort's parliament, says, ' almost all judicious inquirers seem to have acquiesced in admitting this origin of popular representation. '— Midd. Ages, iii. 27. 216 Origin of Parliament. [Ch. Increased use of elected county representatives for fiscal and other matters. Name of Par- liament. moned generally by the sheriff, though it undoubtedly recognized their personal right to attend, was practically interpreted by the light of the county representative system already introduced less than two years previously. 'The only constitutional mode of the sheriff's action,' remarks Professor Stubbs, 'was in the county court. Hence the minor barons, to be consulted at all, must be consulted in the county court. But that court was already constituted of all the freeholders, and the machi- nery of representation and election was already familiar to them. It would then appear certain that, from the time the representatives of the shires were summoned, they were held to represent the whole body of free- holders.' x A long interval of forty years elapsed before the pre- sence of representatives of the counties in Parliament is again recorded. But the period is marked by the in- creasing use of representatives elected ~ in the county court for fiscal and other purposes. Thus, in 1220 and 1225, two writs of Henry III. direct the election of knights for the assessment and collection of subsidies, 3 and in 1226 writs were directed to the sheriffs of eight counties to send to the king, at Lincoln, four knights elected in each county, to make complaints against the sheriffs, concerning an alleged infringement of the Great Charter. 3 To a general assemby of the barons at London in 1246, the name of Parliament, which had previously been indiscriminately applied to assemblies of various kinds, is for the first time given by a contemporary chronicler, Matthew Paris (p. 696). Henceforth it became the distinctive appellation of the National Council. * 1 Select Chart. Introductory Sketch, 39, 40. 2 Close Rolls, i. 437 ; Foedera, i. 177. 3 Report on Dignity of a Peer, App. i. 4. " In a writ of the 32nd of Henry III. the expression ' coram rege et toto parliamento ' is used. — Rot. Clauses, 32 Hen. III. m. 13, Dors. The name given to the sessions of the national council ' was often expressed by the Latin colloquium ; and it is by no means unlikely that the name of vii.] Origin of Parliament. 217 (2.) The second instance of county representation in (U.) a. p. 1254: Parliament is met with in 1254, when Henry III. was in from each Gascony, and in want of men and money. By his ^one'd toWest- direction Queen Eleanor and the Earl of Cornwall, the minster, regents, issued writs to the sheriffs to cause to come before the king's council at Westminster two lawful and discreet knights from each county, whom the men of the county shall have chosen for this purpose in the place of all and each of them, . to consider, together with the knights of the other counties, what aid they will grant the king in such an emergency. These writs possess both a positive and a negative importance. On the one hand we have it clearly directed that the two knights are to be chosen by the county — that is, in the county court ; that they are to represent the county, and are to have a deliberative voice in the assembly ; on the other, the absence of any restriction of the elective franchise to tenants in capite, or to knights, is sufficient evidence that no such restriction then existed. 1 The utter falseness of Henry III., who persistently Henry III. disregarded the Great Charter, notwithstanding his re- ^tional & peated solemn confirmations of it, his devotion to sue- opposition, cessive sets of foreign favourites, his foolish and expen- sive attempt to secure the crown of Sicily for his son Edmund, his illegal exactions, prodigality, and support of Rome against the National Church, excited in all classes of his subjects feelings of animosity and resist- ance equal, if not exceeding, in intensity, those which had inspired the combination against John. Parliament, which is used as early as 1175 by Jordan Fantosme (p. 14), may have been in common use. But of this we have no distinct instance in the Latin Chroniclers for some years further, although when the term comes into use it is applied retrospectively ; and in a record of the 28th year of Henry III. , the assembly in which the Great Charter was granted - is mentioned as the " Parliamentum Runimedae." It is a word of Italian origin, and may have been introduced either through the Normans, or through intercourse with the French kingdom.' Stubbs, Const. Hist. i. S7o. 1 Stubbs, Select Chart. 367. 2l8 Origin of Parliament. [Ch. Parliament at Oxford. a.d. 1258. ' Provisions of Oxford.' Matters came to a crisis in the Great Council or Parliament, which met at London on the 9th of April, 1258; and after stormydebates,lasting till the 5th of May, the king found himself obliged to consent to the ap- pointment of a committee of twenty-four persons, to be elected, twelve by the barons and twelve by the king, in a Parliament summoned to meet at Oxford on the nth of June. To these twenty-four unlimited power was confided to carry out all necessary reforms. They began by drawing up the set of articles known as the Pro- visions of Oxford, under which all the powers of govern- ment were placed in the hands of a kind of representative oligarchy. 1 By a rather complicated process, bearing some resemblance to the Venetian constitution, each twelve of the twenty-four selected two from the other twelve, and the four thus chosen elected fifteen as a council of state. Another committee of twenty-four was appointed for the special business of treating of aids ; and in order, as was alleged, to spare the other members the expense of frequent attendance in Par- liament (which was to meet three times a year), a third body of ' twelve honest men ' was elected by the barons, as representatives of the community, to treat with the king's council of the common need. 2 Although representatives of the shires were not sum- 1 The government in England has on four occasions been placed for a time in the hands of an oligarchy. In John's reign, the 25 barons of Magna Charta; under Henry III., the Oxford committee of 24; under Edward II., the 'Lords Ordainers' ; and under Richard II. the 'Lords Appellant.' Guizot, treating of the Provisions of Oxford, observes : ' Les barons qui avaient arrache la Grande Charte au roi Jean avaient essaye, pour se donner des garanties, d'organiser d'avance et legalement la guerre civile, en cas de violation dela charte. Les barons quidicterent laloi aHenri III. allerent plus loin : ils essayerent d'organiser non la resistance, mais le pouvoir, et de se donner des garanties, non par la guerre, mais par la con- stitution me"me du gouvernement. Ne pouvant contenir dans de justes limites l'autorite du roi, ils entreprirent de la lui enlever et de la prendre eux-memes ; en un mot, de substituer au gouvernement du roi celui de l'aristocratie.' — Hist, des Origines du Gouvernement Repr&entatif, p. 165. 2 See the series of documents relating to the Provisions' of Oxford in Stubbs, Select Chart. 369-396. vii.] Origin of Parliament. 2I 9 moned to the Oxford parliament, the machinery of county representation was made use of for other pur- poses under the ' Provisions,' each county being directed to elect ' four discreet and lawful knights ' to inquire into abuses. The application, moreover, of the prin- ciples of election and representation to the constitution of the governing body of the kingdom under the ' Pro- visions,' was probably not without effect in securing popular representation in . Parliament. In these Provi- sions the barons are designated as. ' the party of the commonalty ; ' and in the proclamation in English of the king's adhesion to the Provisions, he speaks of his counsellors as ' chosen by us and by the landsfolk of . our kingdom ; ' x an expression which recalls to mind the ' landsittende men ' who attended King William's gemdt at Salisbury in 1086. It would seem that at least all the landed proprietors of the realm, and not merely the barons, or even the tenants-in-chief, were regarded as represented in the governing council. (3.) In 1261 the king openly refused to abide by the (iii.)A.p. 1261: Provisions of Oxford, and civil war broke out. During f r om each the contest, the confederate barons summoned to St. county sum- - 1 moned to St. Alban s three knights from each county, ' secum tracta- Alban's. turos super communibus negotiis regni ; ' whereupon . the king, in opposition, issued other writs directing the sheriffs to enjoin the same knights to repair instead, on the day originally fixed, to the king at Windsor, * nobiscum super praemissis colloquium habituros.' (4.) The decisive victory at the battle of Lewes, on (iv.) a. p. 1264: four knights the 14th of May, 1264, followed by the surrender of the f r0 m each king and his son Edward, placed the supreme power in J^™ed j" m " the hands of Simon de Montfort. Although the arbitra- London, tion of St. Lewis of France and his award in Henry's favour (23rd of January, 1264) had served only to 1 Foedera i. 378. 220 Origin of Parliament. [Ch. Simon de Mont- fort founder of the House of ' Commons. Representatives of towns sum- moned to Parliament by De Montiort, 14th December, 1264. rekindle the flames of civil war, a proviso was inserted in the 'Mise of Lewes,' referring all controversies be- tween the king and the barons to the decision of a second arbitration. In the meantime, De Montfort, having placed friendly garrisons in all the royal castles, issued writs in the king's name, appointing certain extra- ordinary magistrates, called guardians of the peace, in every county, and summoning four lawful and discreet knights, ' per assensum ejusdem comitatus ad hoc electos pro toto comitatu illo,' to attend the king in Parliament at London, ' nobiscum tractaturi de negotiis praedictis.' J If not ' the founder of representative government in England,' as Guizot has termed him, Simon de Montfort may justly be regarded as the ' founder of the House of Commons.' 2 An assembly of knights of the shire, ex- clusively representing the ' landsfolk ' of the kingdom, and closely united by descent, interest, and sympathies with the great barons, could never have formed a really popular Chamber, entitled to speak in the name and on behalf of the whole commonalty of the realm. To Simon, Earl of Leicester, belongs the lasting glory of having been ~ the first to admit within the pale of our political constitution the really popular and progressive burgher class, which, together with the freeholders of the counties, constituted henceforth the newly-developed Third Estate of the realm. 3 This 'bold and happy innovation'* was 1 See the Writ, Foedera, i. 442. Guizot very justly remarks : ' II fallait que les idees sur l'autorite legale des parlements et sur illegitimite de la force en matiere de gouvernement eussent fait bien des progres pour que Leicester vainqueur n'osat regler seul le plan d'administration du royaume. ' — Hist, du Gouv. Represent, ii. 173. 2 ' Der Schopfer des Hauses der Gemeinen.' — Pauli, Simon von Mont- fort Graf von Leicester. 3 For an examination of the authorities in favour of an earlier representa- tion of towns, and especially the complaint of St. Albans in the 8th Edw. II. and the complaint of Barnstaple in the 1 8th Edw. III., see Hallam, Midd. Ages, Hi. 28-34, 228. 4 Freeman, Growth of Eng. Const. 83. On the career of De Montfort, the popular hero and martyr-saint, see Blaauw, ' Barons' War,' and Pauli ' Simon von Montfort, Graf von Leicester.' ' A stranger, but a stranger who came to our shores to claim lands and honours which were his lawful heritage, he became our leader against strangers of another mould, against towns. vii.] Origin of Parliament. 221 effected on the 14th of December, 1264 (49th Henry III.), when De Montfort, in the name of the captive king, sum- moned his famous Parliament to meet at London on the 20th of the following January. Writs were issued to all the sheriffs, directing them to return not only two knights from each shire, but also two citizens from each city, and two burgesses from each borough. 1 The towns of England, from a position of semi- Progress of the servitude, had slowly attained to the possession of liberty, wealth, and the political franchise. Originally the de- mesne of the king or other lord, spiritual or temporal, they long continued subject to arbitrary talliage and other exactions ; their inhabitants differed indeed but . little from the villeins of an ordinary manor. Before the Norman Conquest the towns had acquired an indi- viduality distinct from the hundred in which they were locally comprised. Instead of attending at the court leet of the hundred, the townsmen had their own leet, presided over by the elective or nominated reeve, assisted by a body of counsellors, subsequently known as the leet jury. With this primitive organization, the inde- pendent voluntary associations of trade guilds ulti- the adventurers who thronged the court of a king who turned his back on his own people. The first noble of England, the brother-in-law of the king, he threw in his lot not with princes or nobles, but with the whole people. He was the chosen leader of England in his life, and in death he was worshipped as her martyr. In those days religion coloured every feel- ing ; the patriot who stood up for right and freedom was honoured along- side of him who suffered for his faith. . . . The poets of three languages vied in singing the praises of the man who strove and suffered for right, and Simon, the guardian of England on the field and in the senate, was held to be her truer guardian still in the heavenly places from which our fathers deemed that the curse of Rome had no power to shut him out.' — Freeman, ibid. 1 See the writ in Rymer, Foedera, i. 449, and Select Chart. 406. The material portions are : ' Item mandatum est singulis vicecomitibus per Angliam quod venire faciant duos milites de legalioribus, probioribus et discretioribus militibus singulorum comitatuum ad regem Londoniis in octavis praedictis in forma supradicta. ' Item in forma praedicta scribitur civibus Eboraci, civibus Lincolniae, et ceteris burgis Angliae, quod mittant in forma praedicta duos de discretiori- bus, legalioribus" et probioribus tam civibus quam burgensibus suis. ' Item in forma praedicta mandatum est baronibus et probis hominibus Quinque Portuum.' • 222 Origin of Parliament. [Ch. Representative machinery first employed for judicial and fiscal purposes. mately coalesced. 1 As the boroughs increased in wealth and population, the burghers began to purchase from their lords the firma burgi, thus commuting their individual payments for a fixed sum, to be rendered by them in respect of the whole borough, and re-apportioned amongst themselves at their own discretion. The bur- gesses thus acquired the freehold of their houses and tenements in burgage tenure, which was analogous to that in free socage, being subject only to the suzerainty of the lord, and to a fixed annual rent payable to him. During the lapse of two hundred years after the Con- quest, the citizens and burgesses were enabled to extort, from the pecuniary necessities of the kings, charters of liberties varying greatly in extent, but all conceding more or less of self-government, through the medium of elected and representative magistrates. 1 As in the case of the counties, so in that of the boroughs, the representative machinery was first em- ployed for judicial and financial purposes before its extension to the domain of politics. In the court of the shire — the ancient folk-moot, or assembly of the people — all the national elements had from time im- memorial been wont to meet together, the bishops and other dignified clergy, earls, barons, knights, and free- holders in person ; the townships each by their repre- sentative reeve and four men. As the boroughs gradually grew into incorporate municipalities, they also sent their representatives to the assembly of the shire. This is apparent from a very important writ, issued by Henry III. in 1 23 1 to the Sheriff of Yorkshire, for assembling the county court before the justices itinerant, in which he is directed to summon for that purpose not only the 1 Supra, pp. 18, 19 ; and see Stubbs, Select Chart. Introductory Sketch, and Hallam, Midd. Ages, iii. 220. 2 The progressive liberties granted to the towns should be studied in the charters of Henry I., Henry II., Richard I., and John, collected in Stubbs, Select Chart. 102-108, 157-160, 256-259, 299-^6. vii.] Origin of Parliament. 223 persons already enumerated, but also twelve lawful burgesses as representatives from every borough. 1 The year 12 13, in which the first instance of county First symptom representation occurred, is also the date of the first "mStionof symptom — it can scarcely be termed anything more — tow . ns in the of the representation of towns in the Central Assembly, assembly. To the Council (the importance of which has already been pointed out 2 ) summoned by King John to meet at St. Alban's in 121 3, and at which the prelates and 'mag- nates of the realm ' are stated to have been present, the sheriffs of every county were directed to return from every township in the king's demesne four men and the reeve, to estimate the damages lately suffered by the bishops. 3 This was evidently an adaptation for a par- ticular purpose, by the central government, of the local system of representation long familiar in the constitution of the court of the shire. It is probable that from an early period some of the wealthy burghers of important towns occasionally" attended the general assembly. The letter addressed to the pope by the Parliament of 1246 is written in the name, not only of ' totius regni Angliae barones, proceres, et magnates,' but also ' Et nobiles por- 1 The words of the writ are ' omnes archiepiscopos, episcopos, abbates, priores, comites, barones, milites, et omnes libere tenentes, de tota ballia tua, et de qualibet villa quatuor legales homines et praepositum, et de quolibet burgo duodecim legales burgenses.' — Shirley, Royal Letters, i. 325. Professor Stubbs commenting on this writ, points out that the county court contained all the elements that were united in the ' commune concilium regni' at the time, and in addition the representatives of the townships and boroughs. 'We begin,' he remarks, 'to see more clearly the process by which the national council becomes the representative par- liament. It will, when it is completed, be the concentration of all the constituents of the shiremoots in a central assembly ; the permanence of the ancient popular elements, and the assimilation to them of the new municipal ones, make a perfect parliament possible.' — Select Chart. 349. 2 Supra, pp. 105, 212. 3 a.d. 12 13. 'Misit rex litteras ad omnes vicecomites regni Angliae, praecipiens ut de singulis dominicorum suorum villis quatuor legales homines cum praeposito, apud Sanctum Albanum pridie nonas Augusti facerent con- venire, utper illos et alios ministros suos de damnis singulorum episcoporum et ablatis certitudinem inquireret, et quid singulis deberetur. Interfuerunt concilio apud Sanctum Albanum Galfridus Filius Petri et episcopus Win- toniensis cum archiepiscopo et episcopis et magnatibus regni. —Matt. Paris, 239- 224 Origin of Parliament. [Ch. Transitionary Period in con- stitution of P arliament, 1265-1295. Parliament during latter years of Henry III. tuum maris habitatores, necnon et clerus et populus universus.' 1 We are not, however, justified in attributing any representative character to these barons of the Cinque Ports, or to the other burghers, whose presence in Parliament is sometimes recorded or implied prior to the year 1265. The only object for summoning repre- sentatives of the towns was to secure their consent to taxation, and hitherto the kings had found it more con- venient to treat separately, through the officers of the Exchequer, with each town in the royal demesne. The innovation of Simon de Montfort in calling to the central assembly elected representatives of the boroughs, completed the formation of the national Parliament on substantially the same basis which it has ever since retained. But its existence during the next thirty years was still precarious. From 1265 to 1295 was a tran- sitionary period ; and it is only from the latter year that we can date the regular and complete establishment of a perfect representation of the Three Estates in Par- liament. There is no proof that representatives of either counties or boroughs attended the Parliaments of the latter years of Henry III.'s reign. It is true that a contemporary chronicler records the summoning in 1269 of representatives from the cities and boroughs, to assist at the translation of the body of Eadward the Confessor to Westminster Abbey, and that on the conclusion of the ceremony a Parliament was held, at which a subsidy on the moveables of all laymen was granted to the king. But it is not certain that the representatives of boroughs remained for the Parliament ;• indeed, the language of the chronicler would rather seem to imply that they did not. 2 The fact, however, that they were summoned on 1 Matt. Paris, 700. 2 a.d. 1269. 'Convocatis universis Angliae praelatis et magnatibus necnon cunctarum regni sui civitatum pariter et burgorum potentioribus . . . venerandas illas reliquias (sc. Sancti Edwardi) de veteri scrinio transferens. . . . Celebrato tandem tantae translationis solemnio, coeperunt nobiles, ut assolent, parliamentationis genere de regis et regni- negotiis pertractare.'— Chron. T. Wykes, 226 ; Select Charters, 327. vii.] Origin of Parliament. ' 225 this occasion, together with the prelates and magnates of the kingdom, is evidence of the greatly increased im- portance with which the civic element in the nation was now regarded. Under Edward I. instances of representation are few, Parliaments while great councils, attended only by the prelates and magnates,- are very frequent. With all his good and great qualities, Edward loved the exercise of despotic power, and was evidently loth to admit the Commons to a share in the government. At this period there appears to have been no legal or definite distinction between complete Parliaments and Great Councils of the realm. Several of the most important statutes of Edward's reign were passed in assemblies at which no repre- sentatives of the Commons attended. But even during the first twenty years of his reign, before the force of circumstances had compelled him to yield to popular demands, Parliaments, containing representatives from either counties or boroughs, or from both, were occa- sionally summoned for extraordinary purposes. At the national assembly, summoned after the death A - D - 12 73- of Henry III. to meet at Westminster on the 14th of January, 1273, to swear allegiance to Edward I., who was still in Palestine, there attended not only the prelates and barons, but four knights from each county, and four citizens from every city. 1 On his return to England, Edward summoned his a.d. 1275. first general Parliament at Westminster in April, 1275. In the preambles of the important statutes therein enacted (statute of Westminster I. and the statute granting to the king the custom on wool, woolfels, and leather), they are said to be made ' by his council and 1 A.D. 1273. 'Facta convocatione omnium praelatorum et aliorum magnatum regni apud Westmonasterium, post mortem illustris regis Henrici, convenerunt archiepiscopi et episcopi, comites et barones, abbates et priores, et de quolibet comitatu quatuor milites et de qualibet civitate quatuor, qui omnes. . . . sacramentum eidem Edwardo tanquam terrae principi praestiterunt. ' — Ann. Winton. 113. Q 22 6 Origin of Parliament. [ch. by the assent of the archbishops, bishops, abbots, priors, earls, barons, and the commonalty of the land thither summoned,' and the custom is specially said to be granted by the ' communitates regni ad instantiam et rogatum mercatorum,' as well as by the prelates and barons. 1 . a.d. 1283: 20th In 1283, while the king, the barons, and the military January. force of the ^ n ^ om were at Rhuddlan, intent upon the conquest of Wales, two extraordinary assemblies were summoned, the one at Northampton, the other at York, to raise additional forces and grant subsidies. Writs were' issued on the 24th November to the sheriffs, order- ing them to send to Northampton or York, as the case might be, on the 20th of January, 1283, (1) all free- holders, not already with the army, capable of bearing arms, and holding lands of more than 20/. annual value ; (2) four knights from each county, having full power for the commonalty of the same county ; and (3) two men from each city, borough, and market town, having like power for the commonalty of the same, ' ad audi- endum et faciendum ea quae sibi ex parte nostra faciemus ostendi.' % The parliamentary proceedings of this year are important, as ' marking the point of final transition from the system of local to that of central assent to taxation.' 3 The king had already, in order to raise funds for the Welsh war, successfully negotiated for a subsidy with the counties and boroughs separately. But the sums raised not proving sufficient, the necessity for a general grant became apparent, and led to the general 1 Stat. Westminster I., Statutes ofjihe Realm, i. 26 ; Parliamentary Writs, i. 2. The presence of representatives of the commons in par- liament may also be inferred from the preamble of the statute of Marie- bridge (51 Hen. III.), ' convocatis discretioribus tarn majoribus quam minoribus,' repeated in French in the statute of Gloucester (6 Edw. I.), ' appelez les plus descrez de sun regne, ausi bien des greindres cum les meindres.' 2 Parliamentary Writs, i. 10. s Stubbs, Select Chart. 449. vii.] Origin of Parliament. 227 assemblies of representatives of the counties and boroughs above described. 1 In June of the same year, Edward, being at Rhuddlan, a.d. 1283, 30th summoned a national council to meet at Shrewsbury on parliament of the 30th of September, for the purpose of passing Shrewsbury or judgment on David, brother and successor of Llewelyn, Prince of Wales, who had surrendered as prisoner after the conquest of that country. Besides the earls and barons who were individually summoned, writs were issued (1) to the sheriffs through- out England, directing the attendance at Shrewsbury of two elected knights from each county, and (2) to the magistrates of London and twenty other towns, direct- ing the return from each of two elected representatives, ' nobiscum super hoc [sc. 'quid de David fieri debeat '] et aliis locuturi.' 2 This assembly is called by contem- poraries the Parliament of Shrewsbury or Acton Burnell. Exception has been taken to the use of the word ' par- liament' in this instance, on the double ground that there is no proof that any of the clergy were present, and that the representatives of the twenty-one towns were summoned by separate writs, instead of through the sheriffs in the usual way. But however imperfect the composition of this Parliament may have been, we have here an unequivocal instance of the representation - of both sections of the commons in the central assembly of the nation. The commons would appear to have left David of Wales to be tried by his peers, at Shrewsbury, while they themselves adjourned to Acton Burnell, to discuss the ' other matters ' referred to in the writ. The 'Statute of Acton Burnell,' or ' De Mercatoribus,' 3 though in form an ordinance of the king and his council only, was the outcome of the deliberations of this assembly of the commons. The next instance is one of county representation a.d. 1290. 1 See Parliamentary Writs, i. 384, 387. ■ Parliamentary Writs, i. 16. 3 u'Edw. I., confirmed by 13 Edw. I. 0. 3. Q2 228 Origin of Parliament. [Ch. only. On the 14th of June, 1290 (18th Edward I.), writs were issued to the sheriffs to send from each shire, to a Parliament at Westminster on the 15th of July, two or three elected knights, ' ad consulendum et con- sentiendum pro se et tota communitate comitatus, hiis quae comites, barones, et proceres tunc duxerint con- cordanda.' 1 The transitionary state of Parliament is peculiarly illustrated by the proceedings of this year. The king had already held a Parliament on St. Hilary's Day, to which the magnates and 'proceres' only were summoned, in which an aid of forty shillings on every knight's fee was granted for the marriage of the king's eldest daughter. It is remarkable that the aid was granted by the magnates, ' pro se et communitate totius regpi quantum in ipsis est,' 2 lan- guage which seems to imply that at this period they ' still regarded themselves as competent to make a grant on the knight's fee for the whole community, without the presence of the commons.' 3 It would appear, however, that doubts were entertained on the subject, and that, in consequence, the representatives of the shires were sum- moned on the 15th of July to give their consent. In the meantime, on the 8th of July, before the commons had arrived, the king, at the instance of the magnates alone (' ad instantiam magnatum regni sui ') enacted the celebrated Statute of Quia Emptores, by which a stop was put to the practice of subinfeudation* As both the aid 'pur fille marier,' and the Statute Quia Emptores affected the landowners only, the consent of the citizens and burgesses would not be considered necessary. But that the right to share in legislation of even that section of the commons which was closely allied to the baronage was not at this time established, is evident from the publication by the king of a statute affecting all land- 1 Report on the Dignity of a Peer, App. i. 54. 2 Rot. Pari. i. 25. 8 Stubbs, Select Chart. 466. 4 Supra, pp. 6a, 138. vii.] Origin of Parliament. 229 owners with the counsel and consent of the baronage alone, and without the assent of the representatives of the shires. With regard to taxation, however, the latter appear to have effectively vindicated their rights. The aid granted by the baronage was laid aside for a time, (it was not exacted till twelve years later, in 1 302), and in lieu thereof the king appears to have accepted a •fifteenth.' 1 Four years later, on the 8th of October, 1294, the king a.d. 1294. being in want of money, again summoned to a Parlia- ment at Westminster two elected knights from each shire ' ad consulendum et consentiendum pro se et com- munitate ilia hiis quae comites, barones, et proceres praedicti coricorditer ordinaverint in praemissis ; ' and on the following day issued fresh writs summoning two other knights from each county to attend in addition to those previously called ' ad audiendum et faciendum quod eis tunc ibidem plenius injungemus.' 2 The barons and knights granted a tenth ; and a sixth, probably by way of talliage, was exacted from the towns without asking their consent. 3 The year 120? (23rd Edward I.) is an important epoch a.d. 1295. .: \. T , , , i\, Endoftransi- in parliamentary history. It marks the close 01 the tionary period, transitionary period, and the regular and complete esta- Perfect J r ° representation blishment of a perfect representation of the three estates of the Three of the realm in a really national Parliament. 4 Requiring | s ^ of the 1 Stubbs, Select Chart. 465. The remarks of Professor Stubbs on the constitution of Parliament during the transitionary period, 1265-1295, and the authorities cited by him, should be carefully studied in pp. 420-429, 438-441, 449-455. 457, 4°4-47°- 2 Report on Dignity of a Peer, App. 1. 60. 3 Matt. Westm. 422. 4 ' The materials of a parliamentary constitution were ready • to his (Edward's) hand, yet it cannot be denied that it is to him that we owe its regular and practical establishment. Without a single afterthought, or reservation of any kind, he at once accepted the limitation of his own powers. To the Parliament thus formed he submitted his legislative enact- ments. He requested their advice on the most important administrative measures, and even yielded to them, though not without some reluctance, the last remnant of his powers of arbitrary taxation. He had his reward. Great as were his achievements in peace and war, the Parliament of Eng- land was the noblest monument ever reared by mortal man. ... He Origin of Parliament. [Ch. Inferior clergy represented in Parliament under the praemunientes clause. a large sum of money for the conduct of his war with France, Edward summoned a Parliament to meet at Westminster, in November, so constituted as to have the power to tax the whole nation. Besides the ordinary- summons to the lay and spiritual baronage, writs were issued to the sheriffs ordering the election and return of two knights from each county, two citizens from each city, and two burgesses from each borough, 'ad faci- endum quod tunc de communi consilio ordinabitur in praemissis.' But together with the knights and bur- gesses, the inferior clergy, by their representatives under the praemunientes clause, were now for the first time united with the assembled baronage in the national Parliament. In the writs addressed to the Archbishops of Canterbury and York, each was directed not only to be present at the Parliament, but also premonished to cause the prior of his cathedral and the archdeacons of his diocese to attend in person, and the chapter of the cathedral and the parochial clergy by their repre- sentative proctors. 1 This great assembly, the most general which had ever yet been held, did not form found it a council occasionally meeting to grant supplies to the king, and to urge upon him in return the obligation of observing the charter to which he had sworn : he left it a body representing the nation from which it sprung, and claiming to take part in the settlement of all questions in which the nation was concerned. Many things have changed, but in all main points the Parliament of England, as it exists at this day, is the same as that which gathered round the great Plantagenet. It is especially the same, in that which forms its chief glory, that it is the representative not of one class, or of one portion of society alone, but of every class and every portion which, at any given time, is capable of representation. . . Edward was a far more powerful sovereign than his father, not so much by the immeasurable superiority of his genius, as because he placed the basis of his authority on a broader footing, and carried on the work of con- solidating the English nation in the only way in which such a work can, in the end, be successfully accomplished, by making its progress go hand-in- hand with liberty. ' — S.R. Gardiner, Hist. Eng. i. 21. 1 Report on Dignity of a Peer, App. i. 66, 67. There were summoned to this Parliament eight earls, forty-one barons, the two archbishops and the bishops, sixty-seven abbots, the Master of the Temple and of Sempring- ham and the Prior of the Hospital, the prior and archdeacons of the dioceses of Canterbury and of York, one proctor from the chapter of each cathedral, and two proctors from the parochial clergy of each diocese, two knights from each county, and two citizens or burgesses from each city or borough in every shire. vii.] Origin of Parliament. 231 a single body. The aid was discussed and voted by each of the three bodies separately. Each made a dif- ferent proportional grant. The barons and knights gave the king one-eleventh of their moveables ; the burgesses one-seventh ; the clergy only one-tenth. The summons to Parliament of representatives of the inferior clergy was due, like that of the citizens and bur- gesses, to the pecuniary necessities of the king, controlled by the principle established during the 13th century, that taxation could only be legally imposed with the consent of the taxed. 1 It was doubtless the intention of Edward's legal and systematic mind to make the repre- sentatives of the clergy an effective branch of a com- prehensive national Parliament. But this design was The clergy defeated by the action of the clergy themselves. Averse, ? ver 5 e ^ rom . ' OJ ' interfering in by the nature of their calling, from interfering, in the secular ordinary subjects of secular legislation, despising as bar- egls atl0n " barous the system of common law, and desirous of keep- ing themselves as a privileged class apart from the body of the people, they unwillingly obeyed a summons the primary object of which they well knew was to get from them as much money as possible. The clergy, Convocation, moreover, had long possessed their own peculiar assembly or Convocation which, earlier in the reign of Edward I., had already been remodelled upon the repre- sentative basis. 2 In this assembly, sitting in two divi- sions, at London and York, they preferred to grant their aids ; and although regularly summoned to Parliament, under the praemunientes clause, from the 28th of Edward III. down to the present time, their attendance was The clergy always reluctant and intermittent, and in the fourteenth £ eas ;? to at ' e . nd J Parliament in century ceased altogether. But whether in Convocation the 14th or in Parliament, 'they certainly formed a legislative cenury: 1 ' Ut quod omnes tangit ab omnibus approbetur.' — Summons of the Archbishop and Clergy to the Parliament of 1295. (Report on Dignity of a Peer, App. i. 67). 2 See the series of summonses to Convocation, 1225-1277, in Stubbs, Select Chart. 442, and the Introductory Sketch, p. 38. 232 Origin of Parliament. [Ch. But preserve the power of self-taxation till 1664. The clergy not now a separate estate of the realm. council in ecclesiastical matters, by the advice and con- sent of which alone, without that of the commons (I can say nothing as to the lords), Edward III., and even Richard II., enacted laws to bind the laity.' x For two hundred years after they had ceased to attend Parlia- ment, the clergy retained the strictly parliamentary function of taxing themselves in Convocation. But from the reign of Henry VIII., when the Reformed Church, which in its national aspect was itself the creation of Parliament, was placed in strict subordination to the State, 3 the subsidies granted in Convocation were hence- forward always confirmed by Act of Parliament. At length, in 1664, the practice of ecclesiastical taxation was discontinued, without the enactment of any special law, and the clergy, being henceforth taxed at the same rate and in the same manner with the laity, assumed and have ever since enjoyed the right of voting, in respect of their ecclesiastical freeholds, in the election of members of the House of Commons. 3 Thus, whilst theoretically the political constituents of the nation are the King, and the three estates of the realm, the Lords, the Clergy, and the Commons, practi- cally there are and have been for centuries but two estates, the Lords and Commons. The clergy are now a separate estate only by a political and legal fiction. In fact, they are amalgamated with the two continuing estates, and are represented in the Lords by the bishops, in the Commons by the members of that house, who are elected by all qualified persons, whether clerical or lay, below the rank of peerage. 1 Hallam, Midd. Ages, iii. 137. The celebrated statute ' De Haeretico Comburendo,' 2 Hen. IV. c. 15, A.D. 1401, was enacted on the petition of the clergy alone, and is expressed as being made by cousent of the lords but without mention of the commons. 2 By 25 Hen. VIII. c. 19, Convocation was forbidden' to exercise any of its functions without the King's licence. — See Froude, Hist. Eng. iii. 193, 325 ; iv. 479. 3 The taxation of the clergy out of Convocation has been termed ' the greatest alteration in the constitution ever made without an express law.' It was settled by a mere verbal agreement between Archbishop Sheldon and the Lord Chancellor Clarendou. — See Hallam, Const. Hist. iii. 243. vii.] Origin of Parliament. 2^2, Ever since the year 1295 (23rd Edward I.) Parliaments Government by after the model of Simon de Montfort's famous assem- a n™ Commons bly have been regularly summoned in continuous, or all established u j.- ■ r~, . , ... under Edward I: Dut continuous, succession. The essential basis of the English constitution, government by King, Lords and Commons, may thus be said to have been definitely fixed in the reign of the great Edward. 1 To the same period And the right of we must also assign the full and complete acknowledge- Oration 7 ment of the most important — because the practical surrendered, mainspring of every other — power of Parliament. It Events leading was long before the king would surrender the right of ^i„ Co11 ' taking talliages without a parliamentary grant. In order Chartarum.' to carry on his extensive wars he was in constant need of large sums of money, which he raised by arbitrary exactions from all classes of his subjects, lay and clerical. In vain did the clergy endeavour to shelter themselves under the bull of Boniface VIII., ' Clericis laicos' (24th Bull 'Clericis of February, 1296), which absolutely forbade the pay- Lalcos - ment to laymen of any tax whatever on the revenues of the church. The practical outlawry of the whole cleri- cal body, and the confiscation of the estates of the see of Canterbury, compelled the clergy to abandon their untenable position. 2 Whilst the clergy were exasperated by these violent Maltolte on proceedings, the merchants were equally aggrieved by w0 ° ' the heavy impositions placed on the export of their- wool, and by the actual seizure of the greater part of it, 1 ' It was by Edward I. that the bases were settled upon which the English constitution rests. With marvellous sagacity he comprehended the purport of every true thought which was floating on the surface of the age in which he lived. Perhaps no man, excepting Cromwell, possessed of equal capacity for government, ever showed less inclination to exercise arbitrary rule. He knew how to mould his subjects to his own wise will, not by crushing them into unwilling obedience, but by inspiring them with noble thoughts. When he first reached man's estate he found his country- men ready to rush headlong into civil war. When he died, he left England free as ever, but welded together into a compact and harmonious body. There was work enough left for future generations to do, but their work would consist merely in filling in the details of the outline which had been drawn once for all by a steady hand.' — Gardiner, Hist. Eng. i. 16. 2 Ann. Trivet, p. 353, a.d. 1297. 234 Origin of Parliament. [Ch. Infractions of Magna Charta. Foreign service. The Earls of Hereford and Norfolk. A Grand Re- monstrance presented to the king. for which payment was nominally given by tallies upon the Exchequer. Large quantities of provisions were, in the same manner, exacted from the men of each county "for the king's expedition to Flanders, and, in the words of the old chronicler, 'multae fiebant oppressiones in populo terrae.' * The baronage also were irritated by the king's open disregard of many of the provisions of the Great Charter and the Charter of the Forest, both of which he persistently refused to confirm. They had, moreover, a personal grievance in the king's demand of foreign service, which they alleged that neither they nor their ancestors had ever been liable to perform. 2 Hal- lam's eulogium on Bohun Earl of Hereford, the con- stable, and Bigod Earl of Norfolk, the marshal of England, the two leaders of the political- party who forced from the king the Confirmatio Chartarum, re- quires some qualification. They would appear to have been actuated quite as much by personal claims as by motives of true patriotism. But whatever were their motives, it is mainly to their combined courage and prudence, and to the patriotic exertions of Archbishop Winchelsey, that we owe the addition of ' another pillar to our constitution not less important than the Great Charter itself.' 3 What may be termed a Grand Remon- strance was presented to the king in the name of the ■' archbishops, bishops, abbots and priors, earls and barons, and the whole commonalty of the land,' setting forth the evils of which they complained and demanding redress. They complained in forcible language of the talliages, aids, and .prises exacted, as they asserted, with such rigour that the people had scarcely wherewithal to support themselves ('et multi sunt qui nullam sus- tentionem habent, nee terras suas colere possunt ;') of the non-observance of Magna Charta and the Charter of. the Forest ; and of the ' evil toll ' on wool recently 1 W. de Hemingburgh, ii. 119, A.D. 1297. '' W. Rishanger, Chron. 1.75, A.D. 1297. 8 Hallam, Midd. Ages, iii. 3. vii.] Origin of Parliament. 235 Imposed. 1 To this remonstrance the king declined to return any specific answer without the advice of his council, part of which had already sailed for Flanders. A few days afterwards he himself proceeded to Ghent, leaving his son, Edward Prince of Wales, as regent. When the king had departed, the earls seized the oppor- tunity to press their demands upon the young prince and his council, who found it necessary to yield. The ' Confirmatio Chartarum,' 3 which, although a statute, is The statute drawn up in the form of a charter, was passed on the chartaram,' 1 oth of October, 1297, in a Parliament at which repre- passed 10th sentatives of the commons as well as the lay and clerical baronage attended, the two earls being supported by a large military following. It was immediately sent over to King Edward at Ghent, and there confirmed by him on the 5th of November following. 3 By the 5 th section of this statute the king expressly renounced as precedents the 'aids, tasks, and prises' before taken. The next section proceeds : — ' VI. Moreover we have granted for us and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy Church, as also to earls, barons, and to all the commonalty of the land, that for no business from henceforth will we take such manner of aids, tasks, nor 1 See the document in W. Rishanger, Chron. 175, A.D. 1297. With reference to the tax on wool the remonstrants add, ' Lana enim Angliae ascendit fere ad valorem medietatis totius terrae, et vectigal quod inde solvitur ascendit ad quintam partem valoris totius terrae.' 2 25 Edw. I. st. 1, c. 6. * In 1299, the Earls of Hereford and Norfolk, doubting the King's sincerity or the binding force of his confirmation at Ghent of his son's acts, demanded a second formal confirmation. This the King reluctantly granted on the 8th of March, but with a comprehensive proviso saving the rights of the crown ('Salvis tamen juramento nostro, jure coronae nostrae, et rationibus nostris ac etiam aliorum.') The openly expressed discontent of the people at this unlooked-for reservation induced Edward to repeat the process shortly afterwards without the obnoxious salvo. The charters were twice again confirmed by Edward, in the 'Articuli Super Cartas,' on March the 6th, 1300, and finally on the 14th of February, 1301, in return for a subsidy of a 'fifteenth.' Notwithstanding this, Edward secretly sought and obtained, in 1306, from Pope Clement V. an absolution from the observance of the Confirmation of the Charters ; but, to his honour be it said, the absolution was never acted upon. 236 Origin of Parliament. [Ch. vii. ' De Tallagio non conce- dendo.' prises, but by *the common assent of [all] the realm, and for the common profit thereof, saving the ancient aids and prises due^and accustomed.' By section VII. the ' maltolte of wools, that is, to wit, a toll of forty shillings for every sack of wool,' is released, and the king grants ' that we shall not take such thing nor any other ' without the common assent and good- will of the commonalty of the realm, ' saving to us and our heirs the custom of wools, skins, and leather granted before by the commonalty aforesaid.' x The saving words in this statute would appear to have preserved to the king the ancient custom on wool (as distinguished from the ' evil toll '), and even the legal right of talliaging the towns and royal demesne, a right which he exercised in 1 304. 3 But although not formally taken away, talliage without consent of Parliament was clearly contrary to the interpretation of this statute given in the ' De Tallagio non Concedendo.' This document is now admitted not to have been an actual statute, but we are at least justified in regarding it 'as good evidence of a principle which, from the time of the Confirmation of the Charters, has been universally received.' 3 The ex- clusive right of Parliament to impose taxation, though often infringed by the illegal exercise of prerogative, became from this time an axiom of the constitution. 1 Statutes of the Realm, i. 124. 2 See the king's writ in Rolls of Parliament, i. 266. There was also an ' ancient prise' of wines imported, — a duty of two tons from every vessel. 3 Freeman, Growth of English Constitution, 188. The ' Statutum de Tallagio non Concedendo ' is quoted as a statute in the preamble of the Petition of Right, and thenceforth acquired the authority of a statute. In 1637 it was decided to be a statute by the judges: but there is now no doubt that originally it was a mere ' abstract, imperfect and unauthoritative, of the regent's act of confirmation and of the pardon of the two earls.' — See Stubbs, Select Chart. 487 ; and Hallam, Midd. Ages, iii. 4, n. The material words are : ' Nullum tallagium vel auxilium per nos vel haeredes nostras de cetero in regno nostro imponatur seu levetur, sine voluntate et assensu communi archiepiscoporum, episcoporum et aliorum praelatorum, comitum, baronum militum, burgensium et aliorum hominum in regno nostro.' CHAPTER VIII. GROWTH OF PARLIAMENT. A.D. 1 295- 1 399. (23 Edward I.*; Edward II. ; Edward'lII. ; Richard II.) We have seen that under Edward I. the ' Commune The National Concilium Regni,' which for a time, after the Norman Par ] ia ™ ent . ° ' ' gradually wins Conquest, had been absorbed into the feudal ' Curia back an active Regis,' again emerged as a really national Parliament, in the affairs of a which all the political elements of the nation were the nation. present either in person or by representation. But although complete in its representative character, Par- liament had yet, as a whole, to make good its powers ; and the newly-admitted Commons to vindicate their right to an equal, and ultimately to a preponderating, share in the government of the country. The king was at all times in theory bound to act with the ' counsel and consent ' of the great assembly of the nation. But by the overthrow of the old feudal party under Henry II., and the break-up of the new national combination which, until the death of De Montfort, had successfully opposed the misgovernment of Henry III., the king had in reality acquired and exercised, through the medium of his ' concilium ordinarium,' a power little less than despotic. In the growth of Parliament, from the date of its definitive establishment under Edward I., we shall trace the process by which the National Council gradually won back that active control over all the affairs of the nation, which the ancient Witenagem6t 2 3 8 Growth of Parliament. [Ch. Parliament divided into two Houses. Two elements of the Com- mons, knights and burgesses. always, and even- the feudal Great Councils at times, had undoubtedly exercised. 1 The exact date of the division of Parliament into two Houses is not quite clear, but it was completely effected before the middle of the fourteenth century. 3 It must be borne in mind that the commons consisted of two elements, the knights of the shire and the burgesses. The knights belonged socially to the same class as the barons, and had, moreover, originally possessed an equal 1 The comprehensive functions of the Witan have already been discussed, supra, pp. 31-33. Dr. Freeman (Norm. Conq. ii."go) cites an instance of a debate in the Witenagem6t under Eadward the Confessor, on a question of war or peace. In 1242, Henry III. being desirous, at the request of his mother Isabella and her husband the Count de la Marche, of resuming the war with France, submitted the question to a Great Council at Westminster, at the same time demanding an aid. A great debate ensued, of which a detailed account is given in Matthew Paris. The magnates unanimously determined that it was the king's duty to observe the truce then subsisting so long as it was not violated by the French king ; and with respect to the aid asked for ' responderunt eidem domino regi praecise quod nullum ad praesens ei facerent auxilium. ' An early instance of control by the national council over public expenditure had occurred a few years previously, in 1237, when the thirtieth granted to the king as the price of one of his numerous confirmations of the Charter, had been paid into the hands of four of the barons to be expended at their discretion for the benefit of the king and kingdom. — Matt. Paris, 581, 582. 'A l'origine des Etats modernes,' says M. Guizor, ' et notamment de 1' Angleterre, on etait fort loin de penser que la corps des citoyens capables, que la nation politique, eut pour tout droit, celui de consentir aux imp6ts, qu'elle fut soumise d'ailleurs a une autorite independante, et ne dfit point intervenir, directement ou indirectement, dans la generalite des affaires de l'Etat. Quelles que fussent ces affaires, elles etaient les siennes ; elle s'en occupait toutes les fois que leur importance appelait naturellement son in- tervention. L'histoire du Wittenagemot saxori, du Magnum-concilium anglo-normand, et de toutes les assemblies nationales des peuples ger. mains, dans la premiere periode de leur existence, en fait foi. Ces assem- blies Etaient vraiment le grand conseil national traitant et decidant, de concert avec le roi, des affaires de la nation. Quand le systeme repre- sentatif a fait toutes ses grandes conquetes et porti ses fruits essentiels, on en est revenu la. ; on s'est trouve reporte au point de depart. . . . Le parlement est redevenu le grand conseil national oil sont debattus et regies tous les interets nationaux.'' — Hist, du Gouv. Rep. ii. 318. 2 The advantages of the ' Bi-cameral system ' as a guarantee for orderly and permanent government have been forcibly stated by the American writers Kent, Stoiy, and Lieber, and by Jeremy Bentham and Bowyer in our own country. A brief summary of them is given in Sir Edward Creasy 's Eng. Const. 198. But it should be noted that it was only the accidental circumstance of the withdrawal of the clergy from all inter- ference in secular legislation that prevented us from having, as was generally the case in continental constitutions, three houses of Nobles, Clergy, and Commons. — Supra, pp. 230, 231. viii.] Growth of Parliament. 239 right with them to attend in person. On the intro- The knights at duction of county representation the knights of the ^ vote^with shire, although elected not merely by the immediate the barons, apart tenants of the king, but by all the freeholders of the burgesses, county, naturally continued to sit, deliberate, and vote with the greater barons. But the representatives of boroughs, belonging to a lower social grade, and enter- ing Parliament "in virtue of a newly-acquired right, formed from the first a distinct assembly, deliberating and voting apart. Whether they sat in a separate chamber, or at the bottom of Westminster Hall, while the lords and knights occupied the upper end, is a matter of little importance. The separation of the burgesses is evident from the grants of subsidies which, for many years after the introduction of the commons, were voted in different proportions by (1) the earls, barons, and knights, (2) the clergy and (3) the citizens and burgesses. 1 There is reason to believe that the knights even while still voting apart, occasionally joined with the burgesses in petitions. In the 8th of Edward II. ' the Commons of England complain to the king and his council ; ' and there are several other petitions in the 19th of the same king, from the body of the Commons in Parliament. 2 At length, in 1347, we find the Commons, without distinction, granting two-fifteenths from the . cities, boroughs, ancient demesnes of the crown, and the counties. The complete fusion of the two elements of Union of the Lower House into one assembly, — the result of one burfesseTin one House. 1 In 1296, the barons and knights and the clergy gave each a twelfth, the burgesses an eighth ; in 1305, the barons and knights and the clergy gave a thirtieth, the burgesses a twentieth ; in 1308, the barons and knights gave a twentieth, the clergy and the burgesses each a fifteenth. In the 6th of Edward III. ■) Ri g ht of . , . . , . , tii • commons to the commons interfered with great boldness in matters inquire into of governmental administration. administrative abuses. (1.) In 1342 (15 Edward III.) they made a laudable" Attempt to but premature attempt to establish the responsibility of establish the public ministers to Parliament. They petitioned: (1) minkterstc/ That peers should not be tried for any trespass except Parliament. ' A A.D. 1342. by peers ; (2) That commissioners should be appointed to inquire into the accounts of such as had received public monies ; (3) That the ministers and judges should be appointed in Parliament, and sworn to observe Magna Charta and the other laws. The most important of these demands, and at the same time the most obnoxious to the king, was the parlia- mentary appointment of the ministers and judges, which would at once have involved full ministerial responsi- bility. Finding, however, that a subsidy could only be obtained on condition that the petitions were granted, the king reluctantly allowed them to be embodied in a statute ; but with a modification by which he was still to appoint, ' with the advice of his council] the ministers and judges, who however should be bound to surrender their offices at the next Parliament, and be there respon- sible to all having cause of complaint against them. The passing of this statute gave rise to the first protest First protest on on the rolls of Parliament, the chancellor, treasurer, and li^en^agamst iudees, recording their dissent. On the dissolution of the passing of an Act Parliament, Edward had recourse to the violent measure of declaring this statute null and void, in a proclamation addressed to all the sheriffs. He was, however, conscious of the gross illegality of his conduct, and in the follow- ing Parliament procured the formal repeal of the ob- noxious act. 1 (2.) In 1376 (50 Edward III.) the commons for the First instance of 1 Hallam, Midd. Ages, iii. 51. 254 Growth of Parliament. [Ch. parliamentary impeachment. The ' Good Parliament.' Lords Latimer and Nevil im- peached by the Commons. A.D. 1376. first time exercised the constitutional right of impeach- ment. During the declining age of the king and the lin- gering illness of the Black Prince, John of Gaunt, Duke of Lancaster, had acquired the chief direction of affairs. His administration was exceedingly unpopular, and he appears to have been suspected by his dying brother of ambitious designs, inimical to the claims of young Richard of Bordeaux to succeed to the throne of his grandfather. The great increase in the power and influence of the House of Commons is remarkably brought out by the proceedings which took place in ' the Good Parliament,' as that which met in the 50th of Edward III. was long called among the people. Fifty years before, a com- bination of the barons against the Lancasterian party would doubtless have been the form which the oppo- sition would have assumed. Now, the Prince of Wales and the Earl of March (the husband of Philippa, daughter and heiress of Lionel, Duke of Clarence), found that the best means of effecting their object was by backing up the lower House in a political attack upon the government. The commons, voted a subsidy, but insisted that the council should be augmented by the addition of ten or twelve bishops, lords, and others, ' to be constantly at hand so that no business of weight should be despatched without the consent of all.' After complaining, in general terms, that the king and kingdom had been impoverished 'for the private advantage of some near the king, and of others by their collusion,' the Commons proceeded to impeach, at the bar of the House of Lords, two peers, Latimer and Nevil, who held office under the king, and four commoners, Lyons, Ellys, Peachey, and Bury, farmers of the customs and of certain monopolies. 1 The grounds of impeachment 1 ' Before this time the lords appear to have tried both peers and com- moners for great public offences, but not upon complaints addressed to them by the commons.'— Sir Erskine May, Pari. Practice (7th ed.), p. 55. VIIL J Growth of Parliament. 255 were various, but the three principal allegations against the accused were: (1) That they had procured and advised the removal of the staple from Calais, where it had been fixed by Parliament ; (2) That they had lent money to the king at exorbitant usury ; and (3), That they had purchased at a low price, old debts due from the crown, and afterwards paid themselves in full out of the treasury. The House of Lords tried and convicted all the accused, with the exception of Bury, who did not appear to take his trial. Lord Latimer was ex- pelled from the council for ever and placed under arrest ; Lord Nevil was deprived of all his offices ; while Lyons, Ellys, and Peachey were imprisoned and placed at the king's mercy. 1 But the commons were not yet strong enough to stand alone. By the death of the Prince of Wales (8th June, 1376), they lost their chief supporter. On the dissolution of the ' Good Parliament,' the Duke of Lancaster resumed the chief place in the administra- tion ; the new council of twelve was removed ; the former partizans of the Duke returned to court; and Sir Peter de la Mare (steward to the Earl of March), who had led the opposition in the House of Commons, was arrested under false pretences, and imprisoned in Not- tingham Castle. In the following year a Parliament, A packed packed with the Duke's supporters, illegally returned by the sheriffs at his request, 2 undid the work of his pre- decessors, and reversed the judgments given against the impeached ministers. No testimony to the real advance in the power and importance of the lower House can be stronger than this subversion of the measures of one House of Commons by another specially packed for the purpose. ' The intervention of the commons was not confined The Commons 1 Rot. Pari. ii. 322-329. 2 Lingard, Hist. Eng. iv. 104; and Rot. Pari. ii. 374. Not more than seven of the knights who had sat in the ' Good Parliament ' were returned to this one.— See the writs in Prynne's Fourth Register, 302, 311. House of Com- 256 Growth of Parliament. [Ch. intervene in to questions of internal administration. Under Edward and S peace? *"** III. we find them constantly consulted and giving ad- vice on questions of war and peace. Hallam calls this an ' unfair trick of his policy ' in order to prevent any murmuring about subsidies required to maintain wars undertaken by common assent. 1 But we have seen that the consideration of questions, of this nature was an ancient right of the National Council, 3 a body with which - the Commons had now been long permanently incorpo- rated ; and M. Guizot contends that they voluntarily sought the exercise of this power, accepted the attendant responsibility, and gained greatly by so doing. 3 In 1328, while Edward was still a minor, and Mor- timer held the reigns of power, the treaty of peace-with Scotland, by which that kingdom was liberated from all feudal subordination to England, was concluded with the consent of Parliament, the commons being expressly mentioned. In 1 33 1, the king consulted Parliament on the ques- tion of peace or war with France, and was advised in favour of peace. Five years later, however, in 1336, we find them urging the king to war with Scotland on the ground that ' the king could no longer, with honour, put up with the wrongs and injuries daily done to him and his subjects by the Scots.' * Again, in 1341, in the first flush of Edward's French victories, the Parliament pressed him to continue the war, and voted large subsidies for that purpose. In 1343 Parliament was asked to advise the king as to making peace with France. The Lord Chamberlain, Sir Bartholomew de Burghersh, announced on the part of the king that ' as the war was begun by the common 1 Midd. Ages, iii. 53. 2 Supra, p. 238. 3 Guizot, Hist, du Gouv. Rep. vol. ii. 4 Pari. Hist. i. 93. viii.] Growth of Parliament. 257 advice of the prelates, great men, and commons, the king could not treat of, or make, peace without the like assent' The lords and commons, after separate delibe- ration, gave their opinion that the king ought to make peace if he could obtain a truce that would be honour- able and advantageous to himself and his friends, but if not, the commons declared that they would aid and maintain his quarrel with all their power. 1 In 1344 Parliament, on being consulted, again urged that the war should be prosecuted energetically ; but in 1348, when asked for advice (the expenses of the war having in the meantime proved exceedingly burthen- some), the commons returned a very discreet and guarded answer. ' Most dread lord,' they said, ' as to your war and the array of your army, we are so ignorant and simple that we cannot give you advice. We therefore beg your gracious lordship to excuse us, and with the advice of the great men, and of the sages of your council, to ordain what you may judge to be for your honour and the honour of your kingdom ; and whatever shall be thus ordained with the agreement and consent of you and of the great men aforesaid, we will also approve and hold to be firm and established.' 2 In 1354, the king informed the Parliament, through the lord chamberlain, that there was great hope of bring- ing about a peace with France, but that as he would not conclude anything without the assent of the lords and commons, he wished to know whether they would agree to peace if it might be had by treaty. To this the com- mons at first replied ' that what should be agreeable to the king and his council in making of this treaty, would be so to them ;' but on being asked again ' If they con- sented to a perpetual peace if it might be had ? ' they all unanimously cried out ' Yea ! Yea ! ' 3 1 Pari. Hist. i. 106. 2 Rot. Pari. ii. 165 ; Pari. Hist. i. 115. 3 Pari. Hist. i. 122. 258 Grozvth of Parliament. [Ch. When at length peace was concluded, in 1360, by the treaty of Bretigni, Parliament was summoned, and the treaty submitted to its inspection and formally approved. In 1368, when David Bruce offered peace with Scot- land on condition of being relieved from all homage for his crown to the king of England, the Parliament, on being consulted, advised the king ' not to hearken to any such propositions,' seeing that ' they could not assent to any such peace, upon any account, without a disherison of the king, his heirs and crown, which they themselves were sworn to preserve.' ' Once again, in 1369, the king consulted Parliament as to whether he should renew the war with France, be- cause the conditions of the last treaty had not been observed ; and the Parliament advised him to do so. 3 'From the reign of Edward III.,' remarks Sir Erskine May, ' Parliament has been consulted by the crown, and has freely offered its advice, on questions of peace and war. The exercise of this right, — so far from being a modern invasion of the royal prerogative, — is an ancient constitutional usage. It was not, however, until- the power of Parliament had prevailed over preroga- tive that it had the means of enforcing its advice.' 3 Active control In many other matters, besides those already enume- Commonsover rated, the Commons, under Edward III., exercised an various affairs of active control over State affairs. The statute of Pro- SttttC, visors (25 Edw. III.), — which checked the power assumed by the Pope of nominating foreign clerks to fill the ecclesiastical benefices and dignities of Eng- land, — was passed in consequence of 'the grievous complaints of all the commons of the realm.' In 1 Pari. Hist. i. 131. 2 See Guizot, Hist, du Gouv. Rep. vol. ii. 3 Const. Hist. ii. 86. For instances of parliament being consulted as to peace or war under Henry VII., James I., and Queen Anne' see Pari. Hist. 1. 452 ; 1. 1293 ; vi. 609. vin.] Growth of Parliament. 259 this reign also we meet with the first efforts to repress electoral abuses. In addition to several petitions that none but knights or reputable esquires might be allowed to serve as county members, it was enacted in 1373 (46 Edw. III.) that no lawyer practising in the king's court, nor sheriff during his shrievalty, should be returned knight of the shire. The reason alleged was that many lawyers had procured seats in Parliament for the pur- pose of putting forward, in the name of the commons, petitions which only concerned their private clients. 1 The reign of Richard II. is perhaps the most interest- Richard II. ing period in the early constitutional history of England. It was the turning-point in the long struggle between con- Constitutional . , , , . "" , , . importance of stitutional liberty and that arbitrary power towards which his reign. the loosely-defined prerogatives of our early kings were always impelling them. During the last two years of his reign Richard succeeded in establishing a practical despotism, and the question between him and his people was narrowed to the simple issue of absolute monarchy against parliamentary government. His deposition and the election of the worthiest member of the royal house to fill his place marked the final triumph of consti- tutional principles, and furnished a precedent of the greatest value when, nearly three hundred years later, the last of the Stewart kings attempted once more to make 'the royal will the only law.' It was in the reign of Richard II., moreover, that the formidable insurrection of 1 38 1 proved the turning-point in the history of vil- leinage, which thenceforth gradually declined until it .died out without any legislative abolition ; and in this reign also, we recognize in the theological writings of Wycliffe ' the true epoch of the beginning of the Eng- lish Reformation.' 3 1 Rot. Pari. ii. 310. Though long obsolete, this statute was not for mally repealed till 187 1. 2 Shirley, Fasciculi Zizaniorum Magistri Johannis Wyclif. ;6o Growth of Parliament. [Ch- The three periods of Richard II. 's reign. First period : a.d. I377-I3 8 9- Great increase in power of the Commons. Council of twelve ap- pointed as a quasi-regency by the prelates and barons. Under Richard II. not only did the commons confirm by frequent exercise the three main rights established under Edward III., that (i) no money could be levied or (2) laws enacted without their assent, and that (3) the administration of government was subject to their inspection and control ; but they also secured on an equally firm basis the two derivative rights, which had been asserted for the first time in the late king's reign — namely, (1) the right to examine the public accounts and appropriate the supplies, and (2) the right to im- peach the king's ministers for misconduct. In taking a rapid survey of the principal constitu- tional events of the twenty-two years of Richard's reign, it will be convenient to divide it into three periods. I. From 1377 to the coup d'tiat of 1389, when the king suddenly inquired his age and took the reins of govern- ment into his own hands. II. From 1389 to the second coup d'etat of 1 397, when the king seized the Duke of Gloucester and the Earls of Warwick and Arundel (three of the five ' lords appellants ') and executed his long dissimulated project of revenge. III. From 1397, when the king began to exercise despotic power, until his deposition in 1399. !■ 1377— 1389. During this period of minority the commons, no longer content with a defensive warfare against the crown in order to protect the rights already acquired, assumed an aggressive character, and for some years ' the whole executive government was transferred to the two Houses.' 1 As soon as the coronation of the boy-king was over the prelates and barons held a great council, and chose, ' in aid of the chancellor and treasurer,' twelve coun- cillors to act as a quasi-regency. About three months afterwards a Parliament was summoned, and the House of Commons, to which had been returned a large pro- ] Hallam, Midd. Ages, iii. 59. viii.] Growth of Parliament. 261 portion of the knights who sat in the ' Good Parlia- ment' which impeached the Lancastrian ministry, elected as their speaker Sir Peter de la Mare, now released from prison. The commons at once proceeded to assert their On the meeting right to a voice in the government ; and at their request, a permanent ' the lords, in the king's name, appointed a permanent executive «>uii- council of nine, without whose unanimous consent no appointed at business of importance was to be transacted. They commons" 10 also petitioned that, during the king's minority, the chancellor, treasurer, judges, and other high officers, should be made in Parliament; and procured the ap- pointment of two London merchants, Walworth and Walworth and Philpot (the latter of whom is celebrated as the first SWO m%arlia° Englishman who has left behind him the reputation of mentary a financier), as sworn parliamentary treasurers to receive and disburse the liberal subsidy granted for the French war. 1 The heavy expenses attending the prosecution of this Right of Com- war, — a legacy which Richard had inherited from his pu biic accounts grandfather, — and the usual want of economy incident a , nd a PPi' P nate . , J the supplies to a minority, necessitated frequent and urgent appeals established. to Parliament, and the commons were always careful to tack conditions to their grants. In the next Parliament they required a clear account in writing of the receipt and expenditure of the last subsidy, a request which was reluc- tantly granted. In the second year of Richard's reign, the kingdom was in imminent danger of invasion. The Privy Council, not wishing to call a Parliament so soon after the dissolution of the last, convoked a Great Council of peers and other great men, who, finding the absolute necessity of preparation for defence, and that the king wanted money for that purpose, declared that they could not provide a remedy without charging the commons, which could not be done out of Parliament ; but as the necessity was very urgent, they lent their own money for a 1 Rot. Pari. iii. 12. of the Commons : 262 Growth of Parliament. [Ch. time, and strongly advised that a Parliament should be presently summoned as well for the repayment of their loan as for further supply. 1 Parliament was accordingly summoned, and it is significant of the real progress made that the king voluntarily, without waiting for a petition, informed the commons that the treasurers were ready to exhibit the accounts before them ; and a com- mittee was appointed to inquire generally into the state of the revenue. A similar committee, but with more extended powers, was appointed in the following year (3 Ric. II.) ; and the right of the commons to investigate the accounts and appropriate the supplies was clearly established. 2 Bold language In the Parliament whichmet after the insurrection of the villeins in 1382 (5 Ric. II.), the language of the commons was characterized by a remarkable boldness. After ex- pressing their conviction that ' unless the administration of the kingdom were speedily reformed, the kingdom itself would be utterly lost and ruined for ever,' they assert ' that there are such defects in the said administration as well about the king's person and in his household as in his courts of justice ; and by grievous oppression in the country through maintainers of suits, who are, as it were, kings in the country, that right and law are come to nothing, and the poor commons are from time to time so pillaged and ruined, partly by the king's pur- veyors of the household and others, who pay nothing for what they take, partly by the subsidies and talliages raised upon them, and besides by the oppressive be- haviour of the servants of the king and other lords, and especially by the aforesaid maintainers of suits, that they are reduced to greater poverty and discomfort than ever they were before.' After making many other 1 Rot. Pari, 2 Ric. II., Nos. 3, 4, and 5. 2 After, the reign of Hen. IV. this right fell into disuse. It was revived in 1624 and 1641, and again firmly established as an undisputed principle under Charles II. in 1665.— Hallam, Const. Hist. ii. 357. VIII.] Growth of Parliament. 263 bitter complaints against the administration, they em- phatically conclude : ' And for God's sake let it not be forgotten that there be put about the king, and of his council, the best lords and knights that can be found in the kingdom.' A Commission of Reform was appointed 'to survey and examine in privy council both the government of the king's person and of his household, and to suggest proper remedies.' 'And it was" said and of the (continues the entry on the roll), by the peers in Par- liament that, as it seemed to them, if reform of govern- ment were to take place throughout the kingdom, it should begin by the chief member, which is the king himself, and so from person to person, as well church- men as others, and place to place, from higher to lower, without sparing any degree.' 1 The lords and commons seem to have vied with each other in boldness and plainness of speech. It was in a great measure owing to this unanimity between the two houses, and to the support thus afforded to the commons in their struggle with the crown, that the early triumph of constitutional principles was obtained. 3 It was only when, later on, the baronage had split up into rival factions, that Unanimity of the two Houses. 1 Rot. Pari. iii. 100 ; Midd. Ages, iii. 64. 2 ' Few things in our parliamentary history are more remarkable than the way in which the two Houses have for the most part worked together ' in times when they ' were really co-ordinate powers in the state. During the six hundred years that the two Houses have lived side by side, serious disputes between them have been very rare, and those disputes which have happened have generally had to do with matters of form and privilege which were chiefly interesting to members of the two Houses themselves, not with questions which had any great importance for the nation at large.' — Freeman, Growth of Eng. Const., 95. In very recent times the differences between the two Houses have become more common. ' The lords,' remarks Sir Erskine May, ' opposed themselves to concessions to the Roman Catholics, and to amendments of the Criminal Law, which had been approved by the commons. For several years neither the commons nor the people were sufficiently earnest to enforce the adoption of those measures ; but when public opinion could no longer be resisted, the lords avoided a collision with the commons, by acquiescing in measures of which they still disap- proved. Since popular opinion has been more independently expressed by the commons, the hazard of such collisions has been greatly increased. The commons, deriving their authority direct from the people, have in- creased in power ; and the influences which formerly tended to bring them into harmony with the lords have been impaired.' — Const. Hist. i. 307. 264 Growth of Parliament. [Ch. Richard was enabled to get rid of the chiefs of the opposition, and to secure an obsequious lower house. As the king grew up towards manhood, he began to exercise the prerogative of appointing his own ministers, and unfortunately for himself, developed the same par- tiality for favourites which had proved so disastrous to Proceedings of Edward II. This led to the proceedings of the tenth year the'ioth of m of tm ' s 1 " e 'g n » which mark an important epoch in parliamen- Richavd. tary history. The abuses of administration, unchecked by the remonstrances of Parliament or even by statutory enactments, 1 at length became so grave, that the commons determined to remove the ministry and to impeach its Impeachment chief the chancellor, Michael de la Pole, Earl of Suffolk. otMichael dela ThJs prosecut j on con fi rme d to the commons their newly- acquired right of impeaching the ministers of the crown. In the Parliament which met on the 1st of October, 1386, the Lower House, instead of taking into con- sideration the question of supply, at once expressed, in the presence of the king, their resolution to impeach the chancellor. The king then withdrew to Eltham, and when both Houses jointly requested the removal of the chancellor, the king, with characteristic impetuosity and arrogance, replied ' that he would not for them, or at their instance, remove the meanest scullion from his kitchen.' The lords and commons returned a joint answer, refusing to proceed with any business until the king should come back to his Parliament and remove the obnoxious minister from office. 3 At length Richard was rash enough to threaten to call in the advice of the King of France ; a threat which produced the memorable address in answer, in which the Parliament referred to the deposition of Edward II., and plainly intimated to the king that his continued contumacy would produce a 1 ' Of what avail are statutes,' says Walsingham, ' since the king with his privy council is wont to abolish what Parliament has just enacted.' 2 Knyghton in Decern Script ; Hallam, Midd. Ages, iii. 67. viii. ] Growth of Parliament. 265 similar result. 1 After this Richard yielded ; the chan- cellor was removed and his enemy, Arundel, Bishop of Ely, appointed in his stead. In a bill of impeachment, divided into seven heads, Suffolk was charged with divers crimes and misdemeanours, and especially with having obtained from the king grants beyond his deserts and contrary to his oath of office, and with having enriched himself by defrauding the crown. He made an able defence and was acquitted on some of the charges ; but being found guilty on the rest was condemned to forfeit all his grants, and to be committed to prison during the king's pleasure. 3 Acting on the precedents of the reign' of John, Commission of Henry III., and Edward II., and of the third and fifth years of the king's own reign, the commons now petitioned for the appointment of a Commission of Reform. The king at first resolutely refused to give his assent, and threatened to dissolve Parliament, when the commons, to terrify him, sent for the statute by which Edward II. had been deposed. 3 At length the king consented, and a commission, consisting of fourteen persons of the highest eminence, was appointed by statute with almost unlimited powers for the space of one year. 4 Richard, who was now in his twentieth year, had no 1 Their words were : ' We have an ancient constitution, and it was not many years ago experimented (it grieves us that we must mention it), that if the king through any evil counsel or weak obstinacy, or contempt of his people, or out of a perverse or froward wilfulness, or by any other irregular courses, shall alienate himself from his people, and refuse to govern by the laws and statutes of the realm, but will throw himself headlong into wild designs, and stubbornly exercise his own singular arbitrary will, — from that time it shall be lawful for his people, by their full and free assent and con- sent, to depose the king from his throne, and in his stead to establish some other of the royal race upon the same. ' — Pari. Hist. i. 186. - Rot. Pari. iii. 216. There is reason to believe that Suffolk was as much 'sinned against as sinning.' As a parvenu he was regarded with enmity and jealousy by the old nobility, headed by the king's uncle, the Duke of Gloucester. See Taswell-Langmead's 'Reign of Richard II.: the Stanhope Prize (Oxford) Essay for 1866.' 3 Rot. Pari. iii. 233. '' 'Even impartial men,' Hallam remarks, 'are struck at first sight by a measure that seems to overset the natural balance of our constitution. But it would be unfair to blame either those concerned in this commission, some 266 Growth of Parliament. [Ch. intention of submitting to the loss of power. Before the dissolution of Parliament he had made a verbal pro- testation that nothing done therein should be in preju- dice of his prerogatives ; and a few months afterwards, having in the meantime released Suffolk and restored him to favour, he summoned the judges to Nottingham, and propounded to them the famous set of questions. Answers of the The judges gave their answers in writing under seal, that Richard's ques- (0 tne late statute and commission were derogatory to lions - the prerogative ; (2) that all who procured the statute to be passed, or persuaded or compelled the king to consent to it, were guilty of treason ; (3) that the king, and not the lords and commons, had the power to determine the order in which business should be proceeded upon in Parliament; 1 (4) that the king could dissolve Parliament at pleasure ; (5) that his ministers could not be im- peached without his consent ; (6) that any member of parliament contravening articles 3, 4, and S> was a traitor, and especially he who had moved for the statute deposing Edward II. to be read ; and (7) that the judgment against the Earl of Suffolk might be revoked, as altogether erroneous. 3 Whether or not, as all the judges, except one, subsequently protested, these answers had been extorted by threats, they were for the most part servile and unconstitutional, and 'if acted upon would have been for ever fatal to public liberty.' s Plot of the King The king had been secretly maturing a plot for work- of whose names at least have been handed down with unquestioned respect, or those high-spirited representatives of the people whose patriot firmness has been hitherto commanding all our sympathy and gratitude, unless we could distinctly pronounce by what gentler means they could restrain the excesses of government. . . . No voice of his people, until it spoke in thunder, would stop an intoxicated boy in the wasteful career of dissipa- tion. . . . Nothing less than an extraordinary remedy could preserve the still unstable liberties of England.'— Midd. Ages, iii. 69, 70. 1 This was directed against the contention of the commons, insisted upon in the case of Suffolk's dismissal, that redress of grievances ought to precede supply. 3 Rot. Pari. iii. 232 ; Midd. Ages, iii. 72. 8 Lord Campbell, Lives of the Chancellors. viii.] Growth of Parliament. 267 ing out his revenge through the medium of a corrupt against Parlia- bench of judges and a packed House of Commons. He had intended, after securing a Parliament favourable to his cause, 1 to seize the most obnoxious members of the opposition, and send them for trial before the judges who had already given their opinion on the question of law. The discovery of this plot led to the subsequent Its discovery revolutionary proceedings of the five 'Lords Appellants' Evolutionary in the Parliament, which with equal propriety has been proceedings of termed the ' wonder-working ' and the ' merciless.' De- Appellants.' prived, by death or exile, of all his favourites, Richard remained for nearly a year subservient to the Duke of Gloucester's party ; until taking advantage of the grow- ing disunion in their ranks, and of a reaction in public opinion, he suddenly (a.d. 1389) snatched the helm of government from their grasp. The formidable insurrection of the villeins in 138 1 Insurrection of had very forcibly called the attention of the knights and A ^ \$^' burgesses, who had hitherto been intent upon the main- tenance of their own political liberties, to the growing feeling of discontent among the agricultural labourers. Forming probably a majority of the whole nation, they were not merely destitute of political privileges, but harassed by vexatious restrictions on the freedom of their labour, and in many cases were in a state of personal bondage. For a long time prior to the Conquest, the condition History of of a large number of the ceorls had been gradually ' eina s e - becoming more and more depressed. Although they Depression ol were all freemen, an increasing number had lost the ^fjj'totne privilege of commending themselves to whatever hlaford Conquest, they pleased, and were unable to quit the soil which they cultivated for their own and their lord's benefit. There is 1 He sent for the sheriffs and required them to permit no knight or burgess to be elected without the approbation of the king and his council. The sheriffs refused, asserting that the commons would maintain their ancient privilege of electing their own representatives. — Vita Ricardi, p. 85. 268 Growth of Parliament. [Ch. Depression continued after the Conquest : as an indirect result of the feudal system. ' Villein ' a generic term for the agricultural labourer, both free and servile. no evidence that the Normans made any change in the legal position of this class of the people. On the con- trary, the customary rights of the agricultural tenants — the main body of the people — are expressly confirmed in the laws attributed to William the Conqueror : ' Coloni et terrarum exercitores non vexentur ultra debitum et statutum nee licet dominis removere colonos a tern's dummodo debita servitia persolvant.' 1 But the general status of all agricultural tenants would naturally be lowered under the harsh rule of their new military masters. The multitude of smaller or larger ' manors ' with which the whole of England appears covered in the first century after the Conquest, were not indeed of Norman origin, though called by a Norman name. But the strict application of the feudal system to all kinds of land, which was a result of the Conquest, must have tended very much to throw the small landed proprietors under manorial lordships. 3 The ceorl who had previously been at liberty to go where he willed, would now tend to the position of ascriptus glebae; and the service which was formerly certain in amount would now in many cases be exacted at the will of the lord. But the ceorl did not on that account cease to be a freeman. Ceorls who had land for the most part retained it, either as ' libere tenentes,' or as ' socmanni,' rendering, by way of rent, fixed agricultural services, exclusively of, or in conjunction with, a money payment. The rest, under the generic term 'villani,' were the agricultural labourers whose wages were paid in land carved out of 1 Ang.-Sax. Laws, 481, c. I j Leg. Gul. Conq. c. 29. 2 In Bracton (lib. i. c. 1 1, fol. 7) we read : ' Fuerunt etiam in Conqttestu liberi homines qui libere tenuerunt tenementa sua per libera servitia vel per liberas consuetudines, et cum per potentiores ejecti essent, postmodum l'eversi receperunt eadem tenementa sua tenenda in villenagio, faciendo inde opera servilia, sed certa et nominata : et nihilominus liberi, quia licet faciant opera servilia non faciunt ea ratione personarum sed ratione tenementorum.' This is borne out by Domesday, ii. 315 : 'Duo taini tenuere, ibi sunt inn villani.' viii.] Growth of Parliament. 269 the demesne which they cultivated for the lord. But amongst the villeins there were various grades, of which the higher, possessing larger holdings, and performing the more honourable services of agriculture, probably approached very near to the 'socmanni'; while the lower, such as the ' bordarii,' ' cotarii,' and ' cotsetes,' with but scanty allotments, and rendering a baser and less skilled labour, would be liable in many cases to become gradually confounded with the ' servi ' who, after the date of Domesday, disappear as a class distinct from the ' villani.' 1 Glanvil, writing in the reign of Henry II., speaks of Status of the the villeins as being absolutely dependent upon their lords' will, and destitute of any kind of property what- ever. 3 Applied to the lower grade of villeins — the repre- sentatives of the ancient theows, the 'servi' of Domesday — this description is doubtless quite accurate ; but with regard to the whole class of agricultural labourers, generically known as villeins, it is inconsistent with what 1 ' For two centuries after the Conquest the villani are to be traced in the possession of rights both social and to a certain extent political : their oaths are taken in the compilation of Domesday, their representatives attend the hundred-moot and shire-moot ; they are spoken of by the writers of the time as a distinct order of society, who, although despicable for ignorance and coarseness, were in possession of considerable comforts, and whose immunities from the dangers of a warlike life compensated for the somewhat unreasoning contempt with which they were viewed by clerk and knight. During this time the villein could assert his rights against every oppressor but his master ; and even against his master the law gave him a standing-ground if he could make his complaint known to those who had the will to maintain it. But there can be little doubt that the Norman knight practically declined to recognise the minute distinctions of Anglo-Saxon dependence, and that the tendency of both law and social habit was to throw into the class of nativi or born villeins the whole of the population described in Domesday under the heads of servi, bordarii, and villani. Not but that, if it came to a question of law, the local witnesses might in each case draw a distinction as to the status of the villein con- cerned ; the testimony of the township or the hundred might prove that this man was descended from a family which had never been free, this from a bought slave, this from a commended ceorl ; but the law administered by Norman jurists classed nativi and villani together,' Stubbs, Const. Hist. i. 428. 2 ' Omnia catella cujuslibet nativi ita intelliguntur esse in potestate domini sui, quod propriis denariis suis versus dominum suum a villenagio se redimere non poterit.' — Glanvil, lib. v. c. 5 ; see also Dialog, de Scac. lib. i. c. 11 ; lib. ii. c. 14. 2 70 Growth of Parliament. [en. we learn from other historic sources. That villeins had property, notwithstanding the general statements of Bracton and other legal writers to the contrary, seems to be clearly proved. Thus, in the chronicle of Simeon of Durham, we read (a.d. 1096) : ' Comites, barones, vice- comites suos milites et villanos spoliaverunt et regi non modicam summam auri et argenti detulerunt.' l So in the ' Dialogus de Scaccario,' among possible debtors to the king are enumerated 'miles, vel liber alius, vel ascriptitius! ~ In Magna Charta (sec. 20), the ' wainage ' (implements of tillage) of a villein is specially excepted from liability to seizure for a fine due to the king. Henry III., in a writ issued in 1225 for the collection of a ' fifteenth,' excepts from assessment the arms which a villein was sworn to keep for service in the local militia, as well as his household utensils, and such of his pro- visions, hay, and provender as were not for sale. 3 In 1232 a 'fortieth' is declared to have been granted by the ' archbishops, bishops, abbots, priors, clergy holding lay fees ; earls, barons, freeholders, and villeins' 4 Five years later a ' thirtieth ' is declared to be granted by the freeholders, ' pro se et suis villanis,' and a distinction is drawn between the villeins and the poor having less than forty pence ' in bonis,' who are to pay nothing. 5 Change insigni- It seems clear that the word 'villanus' had undergone word^viil* 6 ' acnan g e °f meaning between the times when Domesday was compiled and when Bracton wrote under Henry III. In Domesday the men who, though performing base ser- vices, were still free, are carefully distinguished from the 1 Sim. Dunelm. p. 222. 2 Dial, de Scac. ilb. ii. c. 13. The 'Dialogus de Scaccario' was written by Richard, Bishop of London, Treasurer of the Exchequer under Henry II. , son of Nigel, Bishop of Ely, his predecessor in the office, and great- nephew of Bishop Roger of Salisbury, the original organizer of the adminis- tration of that court. It contains ' an extraordinary mass of information on every important point in the development of constitutional principles, before the Great Charter. '—See Stubbs, Select Chart. 160. 3 Foedera, i. 177. 4 Matt. Paris, 380; Select Chart. 351, 6 Foedera, i. 232 ; Select Chart. 367. viii.] Grozvtk of Parliament. 271 ' servi.' But both the villani and servi received, the one their wages, the other their means of subsistence, inland, which, however it might differ in quantity, was still held by the same villein tenure, and for which they rendered ser- vices the same in kind though differing in extent. From the status of the 'servi' — the lowest species of tenants-in- villeinage — the generic term ' villein ' seems gradually to have acquired a lower sense and meaning, and came at length to denote the condition of personal servitude. 1 The majority of The great mass of the villeins, however, were still freemen, si aves , though subject to services of a base or servile character. The ■ servi ' of The 'word 'servus' disappeared as the name of a class, represented by but villeins, in the lower sense of the term, are generally the 1?*?* mitivi ' specifically described as 'nativi '—villeins by birth, not merely by tenure, — or by the addition of the word ' servus ' after ' villanus.' The double signification of the word is evident from the returns in the Hundred Rolls {temp. Edward I.), where, in certain cases, it is specially stated ' villani sunt servi ' or ' nativi ; ' 3 while, on the other hand, in the decisions of the Curia Regis of the same period, the word 'villanus' is used to designate the state of personal serfdom. 3 We are expressly told by Bracton {temp. Hen. III.), that a freeman might hold tenements in villeinage, in which case his personal liberty existed along with the burthens of territorial servitude. 1 He distinguishes two kinds of villeinage, 1 ' It may be doubted whether the word villani had during the twelfth century fully acquired the meaning of servitude which was attached to it by the later lawyers.' Stubbs, Const. Hist. i. 431. - Rot. Hund. 324: ' Tenentes in villenagio sunt nativi de sanguine suo ;' 327, ' tenentes in villenagio sunt ita servi et nativi quod non possunt mavi- tare filias suas sine licentia domini ;' 329, 'sunt servi et villani de sanguine sno ;' 822, ' De Nativis, Robertus Noreyes tenet unam virgatam in puro villenagio et reddit per annum ii s. ii denar' et debet operari per Mum annum et talliari, et redimet pueros suos ad voluntatem domini. ' 3 Placit. Abbrev. p. 25 : ' £t dicunt quod villanus est quia ipse debet arare et metere et auxilium dare per consuetudinem et quod non potest sine licentia filiam suam maritare.' Id. 161 : ' Homines cognoverunt se esse villanos et consuetudinarios predicti A. operando quidquid ipse precepit et dando merchetum pro filiabus suis maritandis.' 4 Bracton, 1. ii. c. 8 ; iv. c. 28 ; see also Placit. Abbrev. 29 Edw. III. p. 243 : ' Tenura in villenagio non facit liberum hominem villanum. ' 272 Growth of Parliament. [Ch. Viliein-solcemen socage and pure. The ' villani socmanni ' were bound Teins PUre Vl1 ' to fixed services, but while they could not, so long as they performed the service due, be removed from their land against their will, they could at any time voluntarily leave it. They had no power, however, any more than the tenant in pure villeinage, to confer on another any right or interest in the land occupied ; they could only by a bargain with the lord surrender it to him or his steward, so that it might be let out afresh to the person in whose favour it had been relinquished. 1 The ' pure ' villein, on the contrary, according to Bracton, might be subjected to unlimited services and burthens, ' nee scire debeat sero quid facere debeat in crastino, — talliari potest ad plus vel minus.' He had not the smallest right in the land which he cultivated; and was in the strongest sense of the word a predial serf. The ' villani socmanni ' seem to have consisted chiefly of those who were ' tenants of the king's demesnes,' but there is very strong evidence that at the beginning of the thirteenth century the majority of the agricultural tenants of ordinary manors, though subject to many vexatious conditions, were free- men, and that only those specially denominated ' nativi ' were ' pure ' villeins — that is, in actual serfdom or slavery. 3 1 Bracton, ii. 8. 2 See especially ' Domesday of St. Paul's,' of the year 1222, edited for tlie Camden Society by the late Archdeacon Hale. ' Tenants of four ranks or orders,' remarks the Archdeacon, ' occupied the manors of St. Paul's at the time of the Exchequer (Domesday) Survey— Villani, Bordarii, Cotarii, Servi. In the Domesday of 1222 only one of these distinctive names is preserved — that of the Cotarii ; but the other three classes appear to be represented by the Teuantes ['libere,' 'antiquum tenementum,' 'de dominico,' 'in villenagio,' &c], the Operarii [persons holding land 'ad operationem,' i.e., exclusively by the tenancy of labour], and the Nativi. . . Though there were ' Servi ' on every manor in the earlier times, no distinct mention is made of this class on any of the manors in 1222 though probably the persons described as ' nativi a principio ' belonged to it. The ordinary predial services required from the Tenantes or Villani were not required to be performed in person ; and whether in the manor or without it the Villanus was not in legal language "sub potes- tate domini." Not so the Nativus; wherever he was dwelling he was his lord's property, and must return to his manor or be pursued as a fugitive slave.— (Bracton, 1. 1, c. 6, 10.) Under the manorial system all the tenants performed predial services, but the higher was the rank of the viii.] Growth of Parliament. 273 It is important to bear in mind that manorial pro- Difference ,.„. , . ,. , 1 1 . j between the perty differed in many respects from the modern landed ancient manor estate. ' It was not a breadth of land which the lord J^'^™ 11 might cultivate or not as he pleased, suffer it to be in- habited or reduce it to solitude and waste ; but it was a dominion or empire, within which the lord was superior over subjects of different ranks, his power over them not being absolute bnt limited by law and custom. The demesne, the assised, 1 and the waste lands were his ; but the usufruct of the assised land belonged, on conditions, to the tenants, and the waste lands were not so entirely his that he could exclude the tenants from the use of them.' 2 The natural tendency of the customary law by which Tendency in the , , , . , , , . manor towards each manor was regulated was towards certainty ; cer- cer tainty of tainty of services, certainty of tenure. Accordingly we tem \ re an(l find in the Hundred Rolls and other land registers of the thirteenth century, exact specifications of the services due from the various denominations of tenants ; and even those villeins who are entered as liable to be talliaged at the will of the lord, have their agricultural services accurately determined both in kind and extent. There was another circumstance which favourably affected the condition of the agricultural population. A money Early establish- , , ., ,. it, • 1 • 1 ment of a money economy, as opposed to the mediaeval barter in kind, economy in was established in England at a much earlier period, and En g land > far more extensively than in the great inland countries tenant the fewer services were due.' — Introduct. pp. si, 23, 26. 'I sus- pect,' says Hallam, 'that we go a great deal too far in setting down the descendants of these ceorls— that is, the whole Anglo-Saxon popu- lation, except thanes and burgesses, as almost universally to be accounted such villeins as we read of in our law-books, or in concluding that the cultivators of the land, even in the 13th century, were wholly, or at least generally, servile. It is not only evident that small freeholders were always numerous, but we are perhaps greatly deceived in fancying that the occupiers of villein tenements were usually villeins.' — Midd. Ages, iii. 261. 1 Assised lands = parts of the demesne granted out to tenants subsequently to the original formation of the manor. 2 Hale, Domesday of St. Paul's, Introduct. 32. 274 Growth of Parliament. [Ch. Rise of the class of free labourers. Transmutation of villein-tenure into copyhold. Gradual eman- cipation of the ' nativi. ' of the European continent. 1 The lords of manors found it more profitable and convenient to receive money payments in lieu of the ancient predial services, and the tenants were very willing by such payments to relieve themselves from the burthen of personal per- formance of the services. This change was gradually carried out between the end of the thirteenth and the middle of the fifteenth centuries. In this way a numerous class of free labourers arose, and the lords of manors passed into the condition of the landlord of modern times, who must hire, but cannot command, labour. The first to profit by this change were the higher classes of villeins, who gradually, by force of custom, developed from mere tenants-at-will into customary freeholders and copyholders, with inheritable estates in their lands subject to fixed services. 3 The lowest class, the 'nativi,' stiU continued for a long time in a state of transitio: \ their birth state of slavery presenting an almost Jsuperable bar to emancipation otherwise than by the free will of their lords, so long as they continued on the manors to which they were attached. Their ultimate emancipation was due partly to voluntary manumission, which the clergy persistently urged upon the lords, partly to the humane presumptions of the law in favour of liberty, but mainly to the efforts of the slaves themselves, who being in bondage only relatively to their masters, but free as to all the world besides, practically escaped from servitude by flight to distant counties, or sought the shelter of some city or borough within whose hospitable walls unmolested resi- dence for a year and a day rendered them for ever freemen. 1 Nasse, Agricultural Community of the Middle Ages (translated by Ouvry), p. 67. 2 The remarkable transmutation of villein tenure into copyhold began at least as early as the time of Henry III., and was completely carried out before the reign of Edward IV., when the judges permitted the copyholder to bring an action of trespass against his lord for dispossession. viii.] Growth of Parliament. 275 The dreadful pestilence of 1348, by greatly reducing Statutes regu- the number of the new class of hired labourers, nearly doubled the value of their labour,-^-to the great loss of those landed proprietors who had commuted the predial services of their tenants. The landlords, with an utter disregard of the rights of the labourers, had recourse to the statute of 1349, 1 and to a series of . similar statutes between that year and 1368, by which every able-bodied man, not living of his own nor by any trade, was com- pelled to hire himself to any master who should demand his services, 'at such wages as were paid three years previously, or for some time preceding. These statutes, whilst failing in the object which they had in view, as appears by the frequent complaints of the commons Discontent of that they were not kept, greatly increased the general the P easantr y- discontent of the peasantry. 2 In a great many manors at this period the ancient services still remained due, but the villeins, lured by the prospect of high wages impatient of the burthens of predial service, and animated by the general democratic spirit which the progress in knowledge and refinement had excited throughout Europe, began to confederate for the purpose of resist- ing their lords. A statute of the first year of Richard II., 1 Statute of Labourers, 23 Edw. III. 2 The legislation respecting the whole class of free labourers, from the early part of the 14th century till the end of the 15th, was selfish and unjust throughout. 'The labourer,' remarks Mr. Pashley, ' was never to better his condition. Imprisonment and branding on the forehead with a hot iron was the lot of the fugitive servant, although he had never consented to enter into the service of his lord, and had been compelled to do so for wages less than he was justly entitled to receive. Even "artificers and people of mysteries " were liable to be pressed by the lord to get in his harvest (13 Rich. II. c. 3), and if a poor labourer's unmarried daughter of eighteen or twenty years of age, had been " required to serve " any master, she must, under the statutory provisions, either have gone into the service, or have been committed to gaol for refusing. No child could be. appren- ticed to any useful craft, unless its parents were owners of land yielding a certain amount of yearly rent, and the compulsory service, such as has been described, paid for by a rate of wages below the just level would be a per- petual cause why servants should have endeavoured to free themselves from their bondage, and why the "valiant beggars" of whom we read, should have so greatly increased throughout the country.' — Pauperism and the Poor Laws, p. 163. T 2 276 Growth of Parliament. [Ch. ' To inquire of and punish villeins,' recites that ' villeins and tenants of land in villeinage, had withdrawn their customs and services from their lords, having attached themselves to other persons who maintained and abetted them; and under colour of exemplifications from Domesday of the manors and villes in which they dwelt, and by wrong interpretation of those exemplifications, claimed to be quit and discharged of all manner of service, either of their body or of their lands, and would suffer no distress or other course of justice to be taken against them ; the villeins aiding their maintainers by threatening the officers of their lords with peril to life and limb, as well as by open assemblies and by con- federacies to support each other.' 1 It has been sug- gested, with much probability, that about this period the lords of manors who had commuted the services of their tenantsj attempted to reimpose the old predial burthens, 2 and that this, in conjunction with the unjust poll-tax of twelve pence a head exacted from rich and poor alike, was the exciting cause of the formidable insurrec- tion of 1 38 1, in which all classes of the villeins — free Demands of the and slave — made common cause. The actual demands insurgent vil- f ^g msur gents were evidently framed so as to include the grievances of the free agricultural labourers as well as of the ' nativi.' They comprised (1) the abolition of slavery ; (2) a fixed rent of fourpence the acre on lands instead of the predial services due by villeinage ; and (3) freedom of commerce in market towns without toll or impost. Reaction after The immediate effect of the violence of the democratic of e i38 S i!' reCtion P art y was t0 create a reaction of stern repression. The general charter of manumission extorted from Richard by the rioters, was annulled by royal proclamation and 1 I Ric. II. c. 6. 2 Thorold Rogers, History of Agriculture and Prices in England, a.d, 1259-1400. viii.] Growth of Parliament. 27 by statute, both Houses of Parliament unanimously re- fusing to accept the king's suggestion to entirely abolish the state of bondage, and affirming, in the exaggerated language of panic, that they would never consent to such a measure even ' to save themselves from perishing all together in one day.' 1 But the .insurrection was Decay andulfi really the turning-point in the history of predial servi- oTvMdnage. 10 tude. When the panic had passed away, the process of decay, which had begun in the previous century, pro- ceeded at an accelerated pace, and was consummated by the Wars of the Roses, which weakened the authority of the lords over all classes of their tenants, and enabled the latter in the midst of the political confusion to make good their independence. In a few exceptional instances the state of servitude lingered on till the commencement of the seventeenth century, when it became extinct without any legislative abolition. 3 II. 1389-1397. During this period of nearly eight Secona period :• years, comparative harmony subsisted between Richard A-D ' I 3 s 9-i39J 1 Rot. Pari. iii. ioo. 2 The last case in which villeinage was pleaded was that of Pigg v. Caley (Noy, R. 27), in the 15th of James I. The plaintiff, Pigg, sued the defend- ant in trespass for taking his horse. The defendant pleaded that he was seised of the manor of D., to which Pigg was a villein regardant, and that de- fendant and those seised of the said manor had been seised of the plaintiff and his ancestors. The plaintiff replied that he was free, and this issue was found in his favour. Since the extinction of villeinage, no form of slavery in England has been recognized by law. But in the Colonies it was legal- ized by statutes 10 Will. III. c. 26, 5 Geo. II. c. 7, and 32 Geo. II. c. 31 ; and the status of a colonial slave in England long continued doubtful. As early as Queen Anne's reign, Lord Chief Justice Holt expressed an opinion that 'as soon as a negro comes into England he becomes free,' and Mr. Justice Powell also declared that, ' the law takes no notice of a negro ' (2 Salk. 666) ; but the first express adjudication on the subject was not given till 1772, when Lord Mansfield, in the celebrated case of the negro Summersett, pronounced the decision of the Court of King's Bench that slavery in England is illegal, and that the negro must be set free. (State Trials, xx. i; Broom, Const. Law, 65-119.) Four years later, in the case of the negro Knight, the Court of Session of Scotland declared the un- lawfulness of negro- slavery in that country (Morisofl, Diet, of Decisions, iii. 14545). It was not however till 1799 that the colliers and salters of Scotland, who, by force of a comparatively modern custom which had grown into recognition since the extinction, of the ancient, feudal villeinage, had been reduced to a state of serfdom, were declared absolutely free by Statute 39 Geo. III. c. 56. Seven years later the Slave Trade was pro- hibited ; and on the 1st of August, 1834, colonial slavery itself was abolished, 278 Growth of Parliament. [Ch. Apparent har- mony between Richard and his Parliament. Division among the leading nobles. Prosecution of Haxey. and his Parliament. The events of the earlier part of his reign had taught, the king discretion, or rather dis- simulation ; and the return of John of Gaunt, who had been absent during the late revolutionary proceedings prosecuting his claim to the throne of Castile, served to keep his brother of Gloucester in check, and exercised a mitigating influence over the excited passions of all parties. A revulsion of popular feeling, somewhat similar to that which in later times brought about the restora- tion of Charles II., seems to have set in ; and the Par- liament during this period proved complaisant and even obsequious. The popular leaders among the nobles were moreover divided by personal jealousies, and thus the commons lacked the powerful support which they had hitherto received. The Parliament refrained from inter- fering with the king's household expenses, and repealed the statute by which Edward II. had been deposed ; l but they continued the practice of making conditional grants, to be levied only in case of an expedition against the enemy, and on account of the non-fulfilment of this condition, several subsidies were remitted by proclama- tion. The king on his side behaved with unusual courtesy. In 1390, he ordered the chancellor, treasurer, and other members of his council, to resign their offices in Parliament, and submit themselves to its judgment in case any charge should be brought against them. After a day's deliberation the commons declared, in full Parliament, that nothing amiss had been found in the conduct of the ministers, who were consequently restored to their former positions. 3 As soon however as Richard, having secured an alliance with the royal family of France, and perceiving the disunion which existed among his principal nobility, fancied himself secure upon his throne, he ventured once more to indulge his naturally arbitrary and tyrannical 1 Rot. Pari. iii. 286. Ibid. p. 258. vni.] Growth of Parliament. 279 disposition. His first ' open defiance of Parliament and declaration of arbitrary power/ was the prosecution in 1 397 of Sir Thomas Haxey, a priest and a member of the Lower House, who had introduced a bill for the regu- lation of the king's household, and complaining of the excessive charges arising from the multitude of bishops and ladies who were there maintained at the king's cost. Richard sent for the lords, who were considering the bill, declared it to be an invasion of his prerogative, and ordered the Duke of Lancaster to demand from the commons the name of the person who had introduced 'it. This request the commons, with many humble apologies, complied with ; and being intimidated by the king and unsupported in this instance by the nobility, they immediately passed an ex post facto law, declaring it treason for anyperson to move Parliament to remedy anything appertaining to the king's person, rule, or royalty. Two days after, under this law, Haxey was condemned, on his own confession, to suffer the punish- ment of a traitor. 1 This violent proceeding was un- doubtedly (to quote the words used in Henry IV. 's first Parliament, when the judgment was reversed in both Houses), "en an^antissement des custumes de la com- mune, en contre droit et la course quel avoit este" devant en Parlement.' 3 Since the 50th of Edward III., the right of the commons to a control over public expendi- ture as well as to freedom of speech in Parliament, had been established by its frequent and effective exercise. Third Period- III. 1 397-1 399. The prosecution of Haxey was A - D - '397-I399- quickly followed up by the execution of the king's long- surest Rkhard. cherished project of revenge, the first step towards which was the seizure of the Duke of Gloucester and the Earls of Warwick and Arundel (three out of the five 1 Rot. Pail. Hi. 339, 341, 407, 408. As a clerk, his life was spared at the intercession of the bishops. 3 Ibid. 438, 480. 28o • Growth of Parliament. [Ch. Servility of < Lords Appellants '). The conduct of the Parliament Parliament. wag sq servi i ej as to fen der probable the statement of the anonymous author of a life of Richard II., 1 that it was surrounded by the king's troops, and thus coerced into compliance with his wishes. Notwithstanding the general and special pardons formerly granted, the Duke of Gloucester, who had been sent to Calais and there murdered, was attainted after his death, the Earl of Arundel was beheaded, his brother the Archbishop of Canterbury, deposed and banished, and the Lords Warwick and Cobham sent beyond sea. The proceed- ings of Parliament in the tenth and eleventh years of the reign were annulled. The answers of the judges to the questions put by the king at Nottingham, which had been punished by death and exile, were declared to be just and legal. 3 An attempt was also made to bind future Parliaments by enacting that every judgment, ordinance, and declaration, made in the present Par- liament, should in all time to come have the full force of statutes, and that any man who should attempt to repeal or overturn them should suffer the penalty of treason. 3 The commons then set the dangerous precedent of Grant to Rich- granting the king a tax (upon wool and hides) for the forHfe! ireVenUe term of his life - The concludin g act of the session proved the most disastrous of all to constitutional liberty. It had been the custom to dismiss the members as soon as ever public business would permit, and to Appointment of appoint a committee to hear and determine such petitions eighteen com- as h ac i no t been answered during the sitting: of Par- liament. Accordingly, a committee of twelve peers and six commoners was appointed to sit after the dissolution of Parliament. It is evident that no further power was 1 Vita Ricardi (ed. Hearne), 133. There is reason to believe that this par- liament was also packed. Otterbourne (p. 191) says that the knights returned were elected ' per commraiitatem, ut mos exigit, scd per regiam voluntatem.' 2 Hallam, Midd. Ages, iii. 77. 8 Rot. Pari. iii. 353-356. missioners ; viii.] Growth of Parliament. 281 intended by Parliament to be delegated to these eighteen commissioners than such as had been conferred upon previous occasions. But the words of their appointment were of somewhat indefinite scope, under colour of which the committee usurped the complete rights of the legis- who usurp toe lature, and exercised all the powers and functions of a nament. full Parliament. 1 The obscure quarrel between the Dukes of Here- Quarrel and ford and Norfolk (the two remaining ' Lords Appel- Hereford and lants') gave Richard an excuse for banishing them Norfolk, both. The king was now triumphant over all his enemies. The grant of a revenue for life relieved him from the necessity of summoning a Parliament. The committee of eighteen issued ordinances at the Triumph of to king's will, and decreed the penalties of treason against ing ' all who should disobey them ; and a former declaration of the two Houses, that the king's prerogative was as high and unimpaired as that of any of his predecessors, 3 was now construed as giving him the power to dispense with such statutes as controlled it. The career of tyranny and extortion upon which Richard had entered, alienated all classes of the nation, and speedily led to his depo- sition. The time had now come of which the Parliament His deposition, had warned the king in 1 386, when it became ' lawful for his people, by their full and free assent and consent, to depose the king from his throne, and in his stead to establish some other of the royal race upon the same.' 3 1 Rot. Pari. iii. 369, 372, 385. Among the charges brought against Richard prior to his deposition, he was accused of having falsified the parliament roll so as to make it appear that the commissioners had received unlimited powers. After reciting their appointment ' ad terminandum, dissoluto parliamento, certas petitiones in eodem parliamento porrectas pro tunc minime expeditas,' the impeachment continues : ' Cujus concessionis colore personae sic de- putatae processerunt ad alia generaliter parliamentum illud tangentia ; et hoc de voluntate regis ; in derogationem status parliament^ et in magnum incommodum totius regni et perniciosum exemplum. Et ut super factis eorum hujusmodi aliquem colorem et auctoritatem viderentur habere, rex fecit rotulos parliament pro voto suo mutari et deleri, contra effectum con- cessionis praedictae. — Ibid. p. 418. s Rot. Pari. 14 Ric. II. 279. 3 Pari. Hist. i. 186. 282 Growth of Parliament. [Ch. viii. In the solemn exercise of the greatest of its powers, Parliament was careful to observe every formality and precaution which the constitutional lawyers of that day could suggest. But although Richard was induced to resign the crown, and Henry of Lancaster laid claim to it, the deposition, the vacancy of the throne, and the .subsequent election of Henry, are each recorded in the most distinct terms in the official entry on the rolls of Parliament. 1 1 After reciting Richard's resignation of the crown, the crimes of which he had been guilty, and his general unfitness to be king, the formula of de- position runs : ' Propter praemissa, et eorum praetextu, ab omni dignitate et honore regiis, si quid dignitatis et honoris hujusmodi in eo remanserit, merito deponendum pronunciamus, decernimus, et declaramus, et etiam simili cautela deponimus.' The throne is then declared vacant : 'utcon- stabat de praemissis, et eorum occasione, regnum Angliae, cum pertinentiis suis, vacare.' Finally the crown is granted to Henry : ' concesserunt una- nimiter ut Dux praefatus super eos regnaret.' — Walsingham, ii. 234-238. CHAPTER IX. PARLIAMENT UNDER THE LANCASTRIAN AND YORKIST KINGS. AD. 1399—1485. (Henry IV., Henry V., Henry VI., Edward IV., Edward V., Richard III.) Under the Lancastrian kings the Parliament was The Lancastria occupied rather in the consolidation and regulation of its characteris- the results of former contests with the crown than, in the tics> acquisition of any new fundamental rights. The com- mons continued to exercise, with but slight opposition, the main rights which they had established during the 14th century, — voting taxes, appropriating the supplies which they made dependent upon the redress of griev- ances, examining public accounts, controlling the internal administration, sharing in legislation, and intervening in questions of war and peace, and in all important business foreign and domestic. But the chief characteristic of the period was the settlement of the internal constitution of Parliament, and the establishment of its principal forms of procedure and most essential privileges. 1 During the latter half of the 15 th century, the House of Commons became much less independent than it had been under Edward III., Richard II., or Henry IV. The wars of 1 'C'est line epoque plus remarquable par certains perfectionnements dans les ressorts du gouvernement parlementaire, que par la conquSte de grands droits et par la formation d'institutions fondamentales. ' — Guizot, Hist, du Gouv. Repres. ii. 413. 284 Parliament under the [Ch. Increased im- portance of the Commons. the Roses in the first place enhanced the power of the nobles at the expense of the commons, who proved in- variably ready to give a parliamentary sanction to the claims of a victorious military leader ; and, finally, by almost annihilating the ancient nobility, left the lower House to face unaided the augmented power of the crown. But the growing importance of the popular as- sembly is proved by the attempts which were now sys- tematically made by the crown and the nobility, to influence the elections in boroughs as well as in counties. A seat in the House of Commons, even as the representa- tive of a borough constituency, became an object of am- bition to the members of what would now be termed county families, and the higher social status to which the burgesses had attained is marked by the fact, to which Hallam calls attention, that in the reign of Edward IV., and not before, they received the addition of 'esquire' in the returns made by the sheriffs. 1 Taxation : con- Instances of illegal taxation are very rare under the apprapriffof Lancastrian kings. Under Richard II. the system of supplies, exami- forced loans, of which we find the commons complaining nation of ac- „ , . . , . - , . .0111 counts. for the first time in the 2nd year of his reign/ had been very extensively made use of, but the Lancastrian kings seldom had recourse to this means of filling their coffers. In 1400, Henry IV. appears to have obtained an aid from a great council, but they did not pretend to charge any besides themselves. 3 There is also an instance during 1 Midd. Ages, iii. 11 9. The importance attached to a seat in Parliament at this time, and the attempts made to influence the electors are shown in the contemporary Paston correspondence. In vol. i. p. 96 we find the Duchess of Norfolk soliciting the influence of John Paston, Esq. at a county election. ' It is thought right necessarie,' she tells him, ' for divers causes pt my Lord have at this tyme in the p'lment suche p'sones as longe unto him and be of his menyall s'vaunts wherin we conceyve yo r good will and diligence shall be right expedient.' The 'menyell s'vaunts' were 'our right wel-belovid'cossin and s'vaunts John Howard and Syr Roger Chambirlayn.' In vol. ii. p. 98 is a letter to the Bailiff of Maldon recom- mending the election of Sir John Paston. It is cited in full by Freeman, Growth of Eng. Const, p. 197. 2 Rot. Pari. 2 Ric. II. 62. 3 Hallam, Midd. Ages, iii. 85. ix.] Lancastrian and Yorkist Kings. 2S5 the minority of Henry VI, of illegal conduct with res- pect to a conditional grant of a subsidy ; the Duke of Bedford and other lords having subsequently declared in Parliament, with the advice of the judges, and others learned in the law, that the said subsidy was to be at all events collected and levied for the king's use, notwith- standing any condition in the grant. 1 But these were merely occasional exceptions to the admitted legal rule. In the same Parliament the commons, in making a fresh grant, not only renewed the former conditions, but ap- propriated the supply, declaring that 'it ne no part thereof be beset ne dispensed to no other use, but only in and for the defense of the said roialme.' 3 Similar precautions had been taken in the grants made to Henry IV. In the 6th year of his reign the commons granted a subsidy on condition that it should be expended for the defence of the kingdom and not otherwise, and two treasurers of war were appointed and sworn in Parlia- ment to receive it, and account to the commons at the next Parliament. 3 Thus, conditional grants, appropria- tion of supplies, and examination of accounts became the established usage. The dependance of supplies on re- Dependance of dress of grievances originated under Richard II. It had of^evsmMs™ 55 previously been usual for the king not to answer peti- tions until the last day of the session, when the supplies had of course been granted. The attempt to invert this order of proceeding had been declared by Richard IPs judges to be high treason. But in the 2nd of Henry IV. the commons again endeavoured to secure this important lever for the application of parliamentary power. The king resisted firmly, and the commons gave way for the time, 4 but the practice gradually gained ground. In 1407, (9 Henry IV.) a proceeding took place which Fi «t collision 1 Rot. Pari. iv. 301. 2 Id. p. 302. 3 Id. iii. 546, * Id. 453. 286 Parliament under the [Ch. between the two j s interesting both as the first instance of a collision be- tween the two Houses,. and as the earliest authority for what are now two well-known axioms of parliamentary law : (i.) That all money bills must originate in the All money bills House of Commons, and (2), that the king ought not must originate to j. ^ no ti ce f matters debated in Parliament, until a in the Com- ' mons. decision be come to by both Houses, and such decision nouo nof i°e S * be regularly brought before him. It appears that the matters pending l orc ls, in the king's presence, had held a debate on the in Parliament. .,,., ,. , , . , , state of the kingdom, and in answer to the king s de- mands, had specified certain subsidies as being requisite 1 for the national defence. The king then requested the \commons to send a deputation to the Lords' House to hear and report to their fellows what had taken place, ' to the end that they might take the shortest course to ■comply with the intention of the said lords.' Twelve of the commons accordingly attended and made their re- iport to the rest of the Lower House, who were thereupon /greatly disturbed at it, saying and asserting it to be ■much to the prejudice and derogation of their liberties.' ' And after that the king had heard this,' the entry on the roll proceeds, ' not willing that anything should be done at present, or in time to come, that might anywise ^urn against the liberty of the estate for which they are ^ome to Parliament, 1 nor against the liberties of the lprds, — wills and grants, and declares, by the advice and cjonsent of the lords, that it shall be lawful for the lords th_ commune amongst themselves in this present Parliament, The true position of the House of Commons as not being in itself an estkte of the realm but the representative of the estate of the Commons of England, is here expressed. In the same way, the knights, citizens, and burgesses assembled in the Parliament of 1406 (7 Hen. IV. ) which settled the succession to the crown, are described as the ' procurators and attorneys of all the counties, cities, and boroughs, and of the whole people of the kingdom.' Although only elected by a portion of the population they werej regarded as in effect procurators and attorneys for the whole. At this period the Parliamentary franchise was at its maximum ; under Henry VI. fit sank to its minimum. Subsequent extensions of the suffrage have beerl merely attempts to render the essentially representative character of the Commons' House more real and national. ix.] Lancastrian and Yorkist Kings. 287 and in every other in time to come, in the absence of the king, of the state of the realm, and of the remedy neces- sary for the same. And that in like manner it shall be lawful for the commons, on their part, to commune together of the state and remedy aforesaid. Provided always that the lords on their part, and the commons on their part, shall not make any report to the king of any grant by the commons granted, and by the lords assented to, nor of the communications of the said grant, before the lords and commons shall be of one assent and accord in such matters, and then in manner and form accustomed, that is to say, by the mouth of the speaker of the commons! x Originally, not only grants of money but, as we have Petitions assume seen, almost all statutes originated in the proceedings of Sete'statiites 1 "" the House of Commons. The practice of drawing up und might sue out a new writ of execution. The act also distinctly recognised as existing law : (1) the privilege of freedom from arrest ; (2) the right of eithei House of Parliament to set a privileged person at liberty : and (3) the right to punish those who make or procure arrests. 3 . The extension of the privilege of members, so as tc protect, not only their own persons, but their property their servants, and their servant's property, from all civi' suits during the period of privilege, gave rise to verj grave abuses. These were partially restrained by severa statutes, 3 and at length, in 1770, an act was passed, bj which the privilege was reduced to its ancient dimensions protection from arrest for the persons of members only leaving the course of justice as to their property anc their servants entirely free. 4 ' By these several statutes, remarks Sir Erskine May, 'the freedom of member: from arrest has become a legal right rather than a parlia mentary privilege. The arrest of a member has beei held therefore to be irregular ab initio, and he may b< discharged immediately, upon motion in the court fron which the process issued.' 5 The privilege of freedom from arrest has always beei nition of the privilege. The privilege abused. Arrest of mem 1 Hatsell, i. 157 ; May, Pari. Prac. 123. 2 1 Jac. I. c. 13. 3 12 and 13 Will. III. c. 3 ; 2 and 3 Anne, c. 18; n Geo. II. c. 24. 4 10 Geo. III. c. 50. 8 Pari. Prac. 126. ix.] * Lancastrian and Yorkist Kings. 3°5 limited to civil causes, and has never been allowed to {^ {™ f ~"' ourt interfere with the administration of criminal justice. f justice. But as regards one species of offence, — contempt of a court of justice, — which partakes of a criminal character, it was for some time doubtful how far privilege would avail as a protection for members. In 1572, Henry Lord Cromwell complained to the LordCromwell's Lords that his person had been attached by virtue of a ' writ out of Chancery for not obeying an injunction of that court. The Lords agreed that ' the attachment did not appear to be warranted by the common law or custom of the realm, or by any statute law, or by prece- dents of the Court of Chancery,' and ordered Lord Cromwell to be discharged. They added, however, that if at any future time it should be shown that by the Queen's prerogative, or by common law or custom, or by any statute or precedents, the persons of Lords of Parliament are attachable, the order in this case should not affect their decision in judging according to the cause shown. 1 From this period down to 1757, the cases, as Privilege not regards both Lords and Commons, were mainly in favour of attachmen? Se of privilege f but in that year it was ' ordered and for refusing to declared by the Lords that no peer or lord of Parlia- Habeas™rpus. ment hath privilege of peerage, or of Parliament, against being compelled by process of the Courts of Westminster Hall, to pay obedience to a writ of Habeas Corpus directed to him' 3 In the case of Earl Ferrers it was decided that an attachment may be granted, if a peer refuse obedience to the writ. 4 In more recent times, members committed by courts of In recent times law for open contempt have failed in obtaining release Pa f llamerit has 1 Lords' Journ. i. 727. 2 See the cases of Mr. Brereton in 1605 ; of Sir W. Bampfield in 16 14 • of Lord Vaux in 1625 ; and of the Earl of Arundel shortly afterwards.— May, Pari. Prac. 144, 145. 3 Lords' Journ. xxix. 181. * Burr. 631. 306 Parliament under the [Ch its privilege in case of members committed for open contempt of court. But the right still subsists. (iii). Right of the Commons to determine con- tested elections. Early abuse of the sheriff's power of returning members. by virtue of privilege. 1 But it must not, therefore, b( supposed that either House of Parliament has waived it: right to interfere when members are committed fo contempt. 'Each case,' observes Sir Erskine May, 'h open to consideration, when it arises ; and althougl protection has not been extended to flagrant contempt privilege would still be allowed against commitment undei any civil process, or if the circumstances of the cas< appeared otherwise to justify it.' 3 III. The growing power of the House of Commons i; specially marked, during the Lancastrian period, by th( earnest attention bestowed by Parliament upon the subject of elections. Owing to the unlimited power o: the sheriffs, gross abuses in the return of members verj early crept in. It was to the sheriff of each county thai the king's writ was addressed, requiring him to return twc knights for the county and two citizens or burgesses foi each city or borough in his bailiwick. But as no parti- cular cities or boroughs were specified in the writ, this functionary assumed the power of determining whal cities and boroughs should exercise the franchise ; and ii became the constant practice to omit boroughs which hac been in the recent habit of electing members, and tc return upon the writ, 'There are no more cities 01 boroughs within my bailiwick.' There is some excuse for the sheriffs in the fact that the boroughs for the most part were anxious to be omitted, so as to escape the burthen of paying the wages of their members and frequently set at naught the writ ordering ar election, by sending no return. 3 But the discretionary 1 See the cases of Mr. Long Wellesley in 1831, and of Mr. Lechmerf Charlton in 1837, and the reports of the Committee of Privileges. — Com. Journ. vol. 86, p. 701, vol. 92, p. 3, et seq. In 1873, Mr. Whalley and Mr. Guildford Onslow, members of Parliament, were reprimanded and heavily fined by the Court of Queen's Bench for a contempt of court in connexion with the celebrated ' Tichborne case.' 2 Pari. Prac. 147. 3 The town of Torrington, in Devonshire, even obtained a charter 0] exemption from sending burgesses to Parliament. — Hallam, Midd. Ages, iii. US- ix.] Lancastrian and Yorkist Kings. 3°7 power of the sheriffs was often abused by them for the purpose of influencing the elections and falsifying the returns, either at the instigation of the Crown or of great local magnates. Several statutes were from time to time Attempt to ° , restrain the passed to prevent these malpractices. So early as the reign a b US e by of Edward I. the Statute of Westminster I. (3 Edw. I. c. 5) statute - declared that elections ought to be free, and forbade any disturbance of their freedom. In the 5th of Richard II." an act was passed imposing a fine on sheriffs who should neglect to make a return to parliamentary writs, or omit from such return any city or borough which was bound and formerly accustomed to send members to Parlia- ment. 1 A statute of the 7th Henry IV. made ' on the grievous complaints of the Commons against undue elections for shires,' regulated the time and manner of electing knights, and provided for a true return by the sheriff of the result of the election. 3 An act, passed four years later (11 Hen. IV.) gave the justices of assize power to inquire into false returns, and inflicted the penalty of one hundred pounds on any sheriff guilty of this offence. 3 In the 23rd of Henry VI. a further attempt was made to check abuses by an act which gave an additional penalty, upon a false return, to the party aggrieved, and required every sheriff duly to deliver a proper precept to the mayor and bailiff of each city or borough in his shire, to elect representatives for Parliament/and every mayor and bailiff to make a true return of the members chosen. 4 The cognizance of election disputes was originally vested in the king and his council. The first instance of the intervention of the Commons in such matters occurred under Richard II., whose reign was so fruitful in consti- tutional precedents. In 1384 (7 Ric. II.) the town of Shaftesbury presented First inter- a petition to the King, Lords and Commons, complaining Yf ntlon of * e L 11 Commons in of a false return by the Sheriff of Dorset, and praying election- 1 5 Ric. II. st. ii. c. 4. 3 ii Hen. IV. 0. 1. 2 7 Hen. IV. c. 15. 4 23 Hen. VI. c. 14. x 2 3 o8 Parliament under the [Ch. disputes, temp. Ric. II. Nowell's case, A.D. ISS3. Case of the county of Norfolk, 1586. them to order remedy. 1 In the 5th Henry IV. the Commons prayed the King and Lords in Parliament thai an insufficient return by the Sheriff of Rutland might be examined in Parliament, and exemplary punishmenl inflicted in case of default found. The Lords thereupor sent for the Sheriff and for 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 in lieu of Oneby's, and committed the Sheriff to the Fleet till he should pay a fine at the King's pleasure. 3 Ir a subsequent case, in the 18th Henry VI., the Commons are not even named, but the matter was determined by the King and the Lords. Under Edward IV, Henry VII., and Henry VIII. there is no record of any interference on the pari of the Commons ; but the imperfect state of the rolls and journals of Parliament during these reigns renders this negative testimony of little weight. In the 1st year of Queen Mary, the journals of the Commons record the appointment of a committee ' to inquire i; Alexander Nowell, prebendary of Westminster, may be o the House.' On the following day they reported tha: 'Alexander Nowell, prebendary in Westminster, anc thereby having voice in the Convocation house, cannot b< a member of this House, and the Queen's writ to b< directed for another burgess in his place.' 3 The next case was that of the county of Norfolk, in 1 586 On account of some irregularity in the first return, th< chancellor had issued a second writ for this county, anc a different member had been elected. The circumstanci having been noticed in the House of Commons, Queei Elizabeth directed the speaker to express her displeasun 1 Glanvil, Reports of Elections, ed. 1774, Introd. p. 12. The result c this petition is not stated. 3 Ibid. Hallam, Midd. Ages, iii. no. s Com. Journals, 1 Mary, p. 27. ix.] Lancastrian and Yorkist Kings. 3°9 that ' the House had been troubled with a thing imperti- nent for them to deal with, and only belonging to the charge and office of the lord chancellor, whom she had appointed to confer with the judges about the returns for the county of Norfolk, and to act therein according to justice and right.' The House, however, appointed a committee to investigate the circumstances, who reported in favour of the election under the first writ. While intimating that they had reason to believe that the chancellor, and some of the judges, held the same opinion as themselves, the committee declared that ' they had not thought it proper to inquire of the chancellor what he had done, because they . thought it prejudicial to the privilege of the House to have the same determined by others than such as were members thereof. And though they thought very reverently of the said lord chancellor and judges, and knew them to be competent judges in their places, yet in this case they took them not for judges in Parliament in this House : and thereupon required that the members, if it were so thought good, might take their oaths and be allowed of by force of the first writ, as allowed by the censure of this House, and not as allowed of by the said lord chancellor and judges; Which was agreed unto by the whole House.' 1 James I., in the proclamation summoning his first Case of Parliament, attempted to exercise a wide control over Fortescue "ta parliamentary elections, specifying the kind of men who l6o 4- were to be elected, and specially forbidding the choice of 1 bankrupts or outlaws.' All returns were to be filed in chancery ; and any found contrary to this proclamation were to be rejected as unlawful and insufficient, and the constituencies fined. Any person elected contrary to the proclamation was also to be fined and imprisoned. 3 The question soon came to an issue. Sir Francis Goodwin was elected for the county of Buckingham • 1 D'Ewes, 393, cited by Hallam. 2 Pari. Hist. i. 967. 3io Parliament under the [Ch but the Clerk of the Crown refused to receive the retun on the ground that Goodwin had been outlawed some years before, and Sir John Fortescue, a member of th< Privy Council, was elected by virtue of a second writ The Commons, on the matter being brought" under thei: notice, voted that Goodwin was duly elected, and refusec to confer on the subject with the Lords, or to submit tc the contrary decision of the judges. The king desirec them to confer with the judges, which they also refused but at length yielded to his peremptory command. Al his suggestion they finally agreed to a compromise, — thai both Goodwin and Fortescue should be set aside and c new writ issued. This was in effect a victory for the Commons, whose right to decide upon the legality o; returns and the conduct of returning officers in making them, was thenceforth regularly claimed and exercised It was fully recognized as their exclusive right by the Court of Exchequer Chamber in 1674, 1 by the House oi Lords in 1689, 2 and also by the courts in 1680 3 and 1702. 4 Their right was further recognized by the acl 7 William III. c. 7, which declared that ' the last deter- mination of the House of Commons concerning the righl of elections is to be pursued.' The claim of the Commons to determine the rights of the electors as well as the legality of the election gave rise, in 1702, to a memorable contest between the Lords and Commons. One Ashby, a burgess oi Caseof Ashby Aylesbury, having been refused permission to vote 1702. at an election, brought an action at common law against White and others, the returning officers oi that borough. He obtained a verdict ; but it was moved in the Court of Queen's Bench, in arrest of judg- ment, 'that this action did not lie;' and, contrary tc 1 Bamardiston v. Soame, 6 Howell, St. Tr. 1092. 2 lb. 1 1 19. 3 Onslow's case, 2 Vent. 37. 4 Prideaux v. Morris, 2 Salk. 502, ix.] Lancastrian and Yorkist Kings. 3 11 the opinion of Lord Chief Justice Holt, judgment was entered for the defendant, a decision which was after- wards reversed, on a writ of error, by the House of Lords. Upon this the Commons declared that 'the determination of the right of election of members to serve in Parliament is the proper business of the House of Commons, which they would always be very jealous of, and this jurisdiction of theirs is uncontested ; that they exercise a great power in that matter, for they oblige the officer to alter his return according to their judgment ; and that they cannot judge of the right of election, without determining the right of electors ; and if electors were at liberty to prosecute suits touching their right of giving voices, in other courts, there might be different voices in other courts, which would make confusion, and be dishonourable to the House of Com- mons ; and that therefore such an action was a breach of privilege.' On the other side it was objected that ' there is a great difference between the right of the electors and the right of the elected : the one is a tem- porary right to a place in Parliament, pro hac vice ; the ' other is a freehold or a franchise. Who has a right to sit in the House of Commons may be properly cogniz- able there ; but who has a right to choose, is a matter originally established, even before there is a Parliament. A man has a right to his freehold by the common law, and the law having annexed the right of voting to his freehold, it is of the nature of his freehold, and must depend upon it. The same law that gives him his right must defend it for him, and any other power that will pre- tend to take away his right of voting may as well pretend to take away the freehold upon which it depends.' 1 Shortly after the decision of the House of Lords Case of the in this case 'five other burgesses of Aylesbury, now ^y lesbu rymen.' familiarly known as "the Aylesbury men," com- 1 Report of Lords' Committee, 27th March, 1704, upon the conferences in the case of Ashby and White. — Hatsell, vol. iii. App. 3 f 2 Parliament under the [Ch The county franchise enjoyed by all freeholders. menced actions against the constables of their borough and were committed to Newgate by the House o Commons for a contempt of their jurisdiction. The] endeavoured to obtain their discharge on writs of habea, corpus, but did not succeed. The Commons declarec their counsel, agents and solicitors guilty of a breach o privilege, and committed them also. Resolutions con demning these proceedings were passed by the Lords —conferences were held, and addresses presented to th Queen. At length the Queen prorogued Parliamenl and thus put an end to the contest and to the imprison ment of the Aylesbury men and their counsel. Thi plaintiffs, no longer impeded by the interposition of pri vilege, and supported by the judgment of the House o Lords, obtained 'verdicts and execution against the re turning officers.' 1 The exclusive jurisdiction of the Commons it matters of election, which, for the s^.ke of their owi independence, they had insisted on and obtained became subsequently prostituted to the purposes o party, and this abuse reached its greatest heigh under George II. and George III. 8 The evil was re medied as far as possible by the acts of Mr. Grenville ii 1770, and of Sir Robert Peel in 1839; but to the las the constitution and proceedings of election committee ' too often exposed them to imputation of political bias. At length, in 1868, the trial of controverted elections wa transferred to judges of the superior courts of law, 3 thu recurring to the method adopted more than 450 year before in the election statute of 1 1 Henry IV. , It was under the Lancastrian dynasty that the firs statutes were passed regulating the qualifications of par 1 May, Pari. Prac. 55. 2 See May, Const. Hist. i. 362-369. ' The struggle between Sir Robei Walpole and his enemies was determined in 1741 — not upon any questio of public policy — but by the defeat of the minister on the Chippenhar Election Petition.' — Ibid. p. 364. 3 31 & 32 Vict. c. 125. ix.] Lancastrian and Yorkist Kings, 3 X 3 liamentary electors and of persons to be elected. It is probable that from the first introduction of county re- presentation, but certainly as early as the year 1254, the knights of the shire were elected, not merely by the knights or tenants in capite, but by all the freeholders of m ^ e u s m ts under the county assembled in the county court. The earliest Henry IV. statute regulating their election, 7th Henry IV." c. 15, seems to have placed the franchise upon a very popular basis, so as to include not only all freeholders, but all freemen. It was enacted, that 'at the next county [court] to be holden after the delivery of the writ, pro- clamation should be made, in the full county, of the day and place of the Parliament, and that all they that be there present, as well suitors duly summoned for the same cause as others, shall attend to the election of the knights for the Parliament ; and then, in the full county, they shall proceed to the election, freely and indiffer- ently, notwithstanding any request or command to the contrary.' 3 But in 1429 (8 Henry VI.), was passed a First dis- very remarkable measure, — the first disfranchising sta- statute*™ Hen. tute on record, — by which the qualification of county VI. c. 7. electors was restricted to such freeholders as ' have free land or tenement to the value of forty shillings by the year at least, above all charges.' Allowing for the change in the value of money, this was equivalent to a real property qualification of from thirty to forty pounds annual value, and must have disfranchised a very large number of the smaller freeholders. The county franchise, which had reached its maximum under Henry IV., was now reduced to its minimum. The reactionary tenden- cies of the times are disclosed in the recital in the act of 1 Writ for the election of two knights of the shire to grant an aid, A.D. 1254, inStubbs, Sel. Chart. 367. 2 The language of the act is ambiguous, but a comparison of the parlia- mentary writs issued before and immediately after its passing appears to con- firm the wide interpretation. In the later writs all who shallattend upon the proclamation of the sheriff are freely and indifferently to elect the members no mention being made of the franchise being confined to suitors. See Homersham Cox, Ancient Parliamentary Elections, 105. 3H Parliament under the [Ch. Both electors and elected required to be resident. the reasons which were thought to render it necessary. It complained that elections of knights of shires had of late been made ' by very great, outrageous and exces- sive number of people dwelling within the counties, of the which most part was people of small substance and no value, whereof every of them pretended a voice equivalent as to such elections to be made, with the most worthy knights and esquires dwelling within the same counties, — whereby manslaughters, riots, batteries, and divisions among the gentlemen and other people of the same counties shall very likely rise and be [it is not said that they had actually occurred] unless convenient and due remedy be provided.' 1 Besides fixing a property qualification for voters, this statute also required that both the electors and the elected should be actually resident in the county. This had already been insisted on in 141 3, as to both counties and boroughs, by a statute of Henry V. ; 2 and another statute of the 10th Henry VI. (c. 2) ordained that the land which gave the vote should be situate within the county. The restrictions as to residence seem to have been generally evaded as early as the reign of Edward IV. ; and the statute of Henry V. having proved ' almost a solitary instance in the law of England wherein the principle of desuetude has been avowedly set up against an unrepealed enactment,' Geo e in c y s8 was at len S th re P ealed b y the J 4th George III. c. 58. 3 1 8 Hen. VI. c. 7. s I Hen. V. c. I. 3 Hallam, Midd. Ages, iii. 119. In Onslow v. Ripley, 1781, the Court of King's Bench resolved that ' little regard was to be had to that ancient statute, 1 Hen. V., because the common practice of the kingdom had been ever since to the contrary.'' — Peckwell, Reports of Contested Elections, i. 53, note D. In the reign of Elizabeth, in 1571, abill was introduced in the Commons to repeal, as to boroughs, the ancient statute of Henry V. and legalize the innovation which time had brought about. The bill appears to have been dropped, but it gave rise to an interesting debate which has been preserved in the pages of D'Ewes' Journal. The supporters of the bill argued the question on its merits, asserting that a man could not be presumed to be wiser for being a resident burgess, and that the whole body of the realm, and the service of the same, was rather to be respected than any private regard of place or person. • This,' observes Hallam, ' is a remarkable, and perhaps the earliest assertion,, of an important constitutional principle, that each x] Lancastrian and Yorkist Kings. 3 J 5 The act of 23rd Henry VI. has been already referred to |? r f£ q °H h d e n reference to the restraints put upon the malpractices of to be -of gentle :he sheriffs ; but it is more important on account of one ^^2 VI.' Df its provisions, which attempted to establish not only a c. 14. property qualification for members, but also a qualifica- tion of gentle birth, contrary to that important constitu- tional principle, — the legal equality of all freemen below the peerage, — which has exercised so beneficial an in- fluence over the English nation. It would seem that the knights of the shire were ceasing to be in all cases knights in the strict sense of the term, or even gentlemen by birth, and it was now .enacted, that henceforth the :ounty representatives should be ' notable knights of the same counties for which they shall be chosen, or other- wise such notable esquires, gentlemen born, of the same counties as shall be able to be knights, and no man to be such knight which standeth in the degree of a yeoman 3r under.' The property qualification thus established was con- Property quali- siderable, the amount of land which made its owner members, eligible for knighthood being estimated at ^20 annual value, equivalent to at least £300 a year at the present time. The celebrated, statute of Queen Anne — passed to correct the evils of bribery caused by the candidature of rich commercial men without local connexions — excluded all but landowners from the House of member of the House of Commons is deputed to serve not only for his con- stituents but for the whole kingdom ; a principle which marks the distinc- tion between a modern English Parliament and such deputations of the estates as were assembled in several continental kingdoms ; a principle to which the House of Commons is indebted for its weight and dignity, as well as its beneficial efficiency, and which none but the servile worshippers of the populace are ever found to gainsay.' Those who defended the existing law, and appeared anxious to restore it to vigour, urged that the inferior ranks using manual and mechanical arts ought, like the rest, to be regarded and consulted with on matters which concerned them (an argu- ment which has been revived in the present day in favour of working-men candidates for Parliament). But the chief mischief dwelt upon as resulting from non-resident borough members was the interference of noblemen in elections in favour of nominees. Some members proposed to impose a fine of ^40 on any borough making its election on a peer's nomination. — D'Ewes, p. 168 ; Hallam, Const. Hist. i. 266. 3i6 Parliament under the [Ch. Abolished in 1858. Borough elections. Who were the electors in boroughs. Commons, the qualification being fixed at £600 a year for county, and £300 a year for borough members, 1 which was to be exclusively derived from freehold or copyhold estate. 2 This invidious and unjust law was maintained until 1838, when the monopoly of the land- owners was surrendered, and personal property was admitted as a qualification. 3 At length, in 1858, the law of property qualification, having been systematically evaded from its first establishment, was abolished altogether. 4 There is only one recorded instance in which advantage was taken of the oligarchic provision of Henry VI.'s statute, that knights of the shire should be of gentle birth, and this occurred six years after the law was passed. 5 But it would be very rare during the reactionary period upon which England had now entered, that other than men of aristocratic birth should be returned as county members. The servility of Parlia- ment during the Tudor period was in no small degree owing to the political corruption, for which the limited constituencies introduced by Henry VI. afforded every facility. In boroughs, prior to the passing of the act of Queen Anne above referred to, no other qualification was required in the members except that imposed by the 1 Henry V. c. i., that they should be ' citizens and burgesses resiant, dwelling, and free, in the same cities and boroughs.' The question, Who were the electors in boroughs ? has been the subject of much controversy ; but Mr. Serjeant Merewether and Mr. Stephens, in their learned work on the ' History of Boroughs,' have con- clusively shown that originally the elective franchise was enjoyed by all burgesses, that is, by all the free inhabit- 1 The members for the Universities were excepted. 2 9 Anne, c. 5. A bill to the same effect passed both Houses in 1696, but William III. withheld the royal assent. 3 1 & 2 Vict. c. 48. 4 6 & 7 Vict. c. 18. 5 In the 29th Hen. VI. the election of Henry Gimber for Huntingdonshire was set aside on the ground (among others alleged by the petitioning electors) that he was not of gentle birth.— Prynne's 3rd Register, p. 157. :x.] Lancastrian and Yorkist Kings. 317 int householders paying scot and hearing lot, and sworn md enrolled at the court leet of the borough. The court leet,' or ' burghmoot,' was the ' folkmoot ' of the aorough, justas the 'shiremoot ' was the ' folkmoot ' of the shire. Those householders only who bore their share of the burthens of the place, who paid scot and bore lot, were entitled to the privilege ; those who, from poverty or other cause, did not pay the charges, nor serve the public offices of the borough, were not ' burgesses,' and therefore excluded. 1 But at an early period it seems to have been customary for the borough representatives to be elected in the county court by delegates, chosen by their fellow-burgesses for that purpose; and gradually these select bodies, by whatever names distinguished, usurped the power, and by long usage acquired a kind }f prescriptive right,, of election. By the end of the 15 th century these select bodies had in many places substituted self-election for the suffrages of the whole sody of the burgesses. ' Until the reign of Henry VII.,' ■emarks Sir Erskine May, ' these encroachments had been ocal and spontaneous. The people had submitted to hem : but the law had not enforced them. From this :ime, however, popular rights were set aside in a new brm. The Crown began to grant charters to boroughs, 2 generally conferring, or reviving the privilege of ■eturning members to Parliament ; and most of these ;harters vested all the powers of municipal government n the mayor and town council, nominated in the first nstance by the Crown itself, and afterwards self-elected, ^or did the contempt of the Tudors for popular rights 1 In the Year Book of Edward III. the persons entitled to be citizens of ^ondon were decided to be ' those who were born and heritable in the same ity by descent of inheritance, or who were resiants and taxable to scot and ot.' The .latter is the most general description, and as the former would nclude all who had heritable houses, so would the latter include all other esident householders who were of free condition. — Merewether and Stephens in Boroughs, Introd. xxvi. 2 The first charter of municipal incorporation was granted in the reign of lenry VI. 318 Parliament under the [Ch. stop here. By many of their charters the same governing body was entrusted with the exclusive right of returning members to Parliament. For national, as well as local purposes, the burgesses were put beyond the pale of the constitution. And in order to bring municipalities under the direct influence of the Crown and the nobility, the office of high steward was often created : when the nobleman holding that office became the patron of the borough, and returned its members to Parliament. The power of the Crown and aristocracy was increased at the expense of the liberties of the people. The same policy was pursued by the Stuarts ; and the two last of that race violated the liberties of the few corporations which still retained a popular con- stitution, after the encroachments of centuries.' 1 Resi- dence was at first an essential qualification for a burgess, whether as member or elector; but when the practice of electing non-resident members had been introduced, in open defiance of the Parliamentary writ, and the statutes of the realm, non-resident electors were also admitted. This was extensively resorted to at the restoration of Charles II., when, under the act of the 13th year of that reign, the resident corporators were expelled from their offices by the king's commissioners, and the great officers of state and other persons intro- duced in their stead. Although these usurpations were in some places corrected after the Revolution, yet in others they were improperly continued and sanctioned by legal authority. By these various means the right of voting in cities and boroughs became generally restricted, either to the mayor and town council, or to that body and its own nominees, the freemen ; and by the growth of an infinite variety of local usages, which, though not really ancient, were judicially recognized as such, the electoral, as well 1 Const. Hist. iii. 279. Case of Quo Warranto, 1683, St. Tr. viii. 1093 ; remodelling the Corporations, 1687, Hallam, Const. Hist. iii. 74. x.] Lancastrian and Yorkist Kings. 3*9. is the municipal, system of boroughs became greatly- banged from its primitive popular character. 1 The nass of abuses and anomalies was at length swept away jy the Reform Act 2 and the Municipal Corporations A.ct. 3 Finally, in 1867, the ancient system of household suffrage, with certain restrictions, which cannot be re- _ yarded as in any way more stringent than those which ariginally existed, was "re-established. 4 Henry VI. was only nine months old when he sue- History of needed to the throne. His long minority, and the mental e & encie imbecility which he evinced on reaching manhood, rendered his reign practically a perpetual regency ; although nominally a protector of the kingdom was Dnly appointed at Henry's accession, and on two other Dccasions, once when the king was specially afflicted by tiis malady, and again in 1455, when, after the first battle of St. Alban's, the Duke of York was stretching 1 Sir Erskine May (Const. Hist. iii. 276) has pointed out the remark - ible parallel existing between the general political history of the country md the history of local government, both in boroughs and parishes : ' While ;he aristocracy was encroaching upon popular power in the government of :he state, it was making advances, no less sure, in local institutions. The r ew were gradually appropriating the franchises which were the birthright of he many ; and again, as political liberties were enlarged, the rights of self- jovernment were recovered. Every parish is the image and reflection of :he state. The land, the church, and the commonalty share in its govem- nent ; the aristocratic and democratic elements are combined in its society. The common law, in its grand simplicity, recognized the right of all the ■ated parishioners to assemble in vestry and administer parochial affairs. But in many parishes this popular principle gradually fell into disuse ; and 1 few inhabitants — self-elected and irresponsible — claimed the right of im- josing taxes, administering the parochial funds, and exercising all local tuthority. This usurpation, long acquiesced in, grew into a custom, which he courts recognized as a legal exception from the common law. The >eople had forfeited their rights, and select vestries ruled in their behalf. ' V partial remedy for this abuse of parochial government was applied by Kir. Sturges Bourne's Act in 1818, (58 Geo. III. c. 69), and by Sir John lobhouse's Vestry Act (1 & 2 Will. IV. c. 60) in 1831. 3 2 & 3 Will. IV. t . 45. 3 5 & 6 Will. IV. c. 76, amended by 22 Vict. c. 35. * The Reform Act of 1867 (30 & 31 Vict. c. 102) admitted to the lorough franchise all male occupiers of dwelling-houses (of full age) who lave resided for twelve months on the 31st July in any year, and have been ■ated to the poor rates as ordinary occupiers, and have, on or before the 10th July, paid such rates up to the preceding 5th January. It also ad- mitted lodgers who have occupied for the same period lodgings of the nnual value, unfurnished, of £\o. 320 Parliament under the [Ch. forth his hand towards the throne. The action of Parlia- ment with reference to the question of regency forms an interesting point in constitutional history. During the temporary absence from the realm of our Norman and early Angevin kings, the government of the kingdom de- volved officially on the chief justiciar, and from the reign of Henry III. it became common to appoint lords justices, or custodes regni — usually by royal authority only. 1 But these appointments scarcely fall within the stricter sense of the term ' regency,' which connotes the infancy or other natural incapacity of the reigning king. Owing probably to the ancient elective character of the English kingship, the common law makes no provision for the case of an infant king who, in judgment of law, can never be a minor, and has therefore no legal guardian. 3 But pari passu with the gradual establishment of heredi- tary succession to the Crown, the national council, besides altering the course of succession as occasion required, began to exercise the power of vesting the royal authority, during the infancy or other incapacity of the reigning prince, in a protector, guardian, or council of regency. There are fifteen instances in English history of the appointment of a regency, either actual or prospective. Henry III. i. On the accession of Henry III., at the age of nine years, the Earl of Pembroke assumed the title of ' rector regis et regni,' with the consent of the few loyal barons who had just proclaimed the young king. The powers of the ' rector ' were practically limited by the advice of the baronage. 1 After the death of Mary II. in 1695, Lords Justices, consisting of the principal officers of state and the Archbishop of Canterbury, were appointed to carry on the government during William III. 's absence from the realm on his foreign expeditions. a Co. Litt. 43. Sir Edward Coke reasons thus : ' In judgment of law the king, as king, cannot be said to be a minor : for when the royall bodie politique of the king doth meete with the naturall capacity in one person, the whole bodie shall have the qualitie of the royall politique, which is the greater and more worthy, and wherein is no minoritie.' ix.] Lancastrian and Yorkist Kings. 321 2. On the death of Henry III., his son Edward being Edward 1. in Sicily, the barons met at the Temple Church, and after making a new great seal, appointed Walter Gififard, arch- bishop of York, Edmund, Earl of Cornwall, the nearest prince of the blood, and the Earl of Gloucester to be mi- nisters and guardians of the realm until the king's return. 3. On the accession of Edward III., at the age of Edward III. fourteen, Parliament was immediately summoned, and proceeded to appoint a standing council, ' a sort of par- liamentary regency,' consisting of four bishops, four earls and six barons, with the Earl of Lancaster at their head, to advise the king in all matters of government. 4. Richard II. was only ten years and six months old Richard II. at the date of his accession. But however incapable naturally of exercising sovereign authority, he was regarded as in the legal enjoyment of it, and no regent was appointed. The great seal, according to the subtle reasoning of the lawyers of that age, was supposed to pos- sess a sort of magical influence rendering any government legal. The day after his grandfather's death, Richard received the seal from the hands of its keepers, and delivered it to the Duke of Lancaster for safe custody. Four days afterwards it was handed over to the Bishop of St. David's, who was thus enabled to legalize all acts of the government. But although no regent was ap- pointed, the House of Lords nominated a council of twelve, without whose concurrence no measure was to be carried into effect. This council was modified from time to time by Parliament, which itself acted as ' a great council of regency ' during the earlier years of Richard's reign. 1 5. At the accession of Henry VI: far more regularity Henry VI. and deliberation were shown in supplying the defect in First Re F nc y- the executive authority. Henry V. on his death-bed had named the Duke of Gloucester regent and guardian of his infant son. But this disposition was disregarded 1 Hallam, Midd. Ages, iii. 186. 322 Parliament under the [Ch. by the Parliament. On hearing of the late king's death, several of the lords spiritual and temporal, chiefly mem- bers of the old council, met together and provided for the exigencies of government by issuing commissions to judges, sheriffs, and other officers, to continue in the exercise of their respective duties, and also writs for a new Parliament. This was opened by the Duke of Gloucester, as commissioner appointed in the king's name, with the consent of the council, under the great seal, and at once proceeded to ratify all the acts of the peers who had taken on themselves the administration and summoned the Parliament. Some weeks later it is recorded in the rolls that the king, 'considering his tender age and inability to direct in person the concerns of his realm, by assent of lords and commons appoints the Duke of Bedford, or in his absence beyond sea, the Duke of Gloucester, to be protector and defender of the kingdom and English church, and the king's chief coun- sellor.' Letters patent were afterwards passed to this effect, but the tenure of the office was expressly limited to during the king's pleasure. Sixteen counsellors were afterwards appointed in Parliament to assist in the administration, with an almost unlimited power of veto on the removal and appointment of officers. 1 The nature and extent of the powers committed ta the Protector may be learnt from the answer of the lords to a request of the Duke of Gloucester in the sixth year of Henry's reign, that he might be informed what authority he possessed. After reminding the duke that . at first he had desired ' to have had the governance of this land, affirming that it belonged unto you of right, as well by means of your birth as by the last will of the king that was your brother, whom God assoile; alleging for you such grounds and motives as it was thought to your discretion made for your intent ; whereupon the 1 Rot. Pari. iv. 169, 174, 176 ; Hallam, Midd. Ages, iii. 186. [x ] Lancastrian and Yorkist Kings. 323 lords spiritual and temporal assembled there in Parlia- ment . . . had great and long deliberation and advice, searched precedents of the governail of the land in time and case semblable, when kings of this land have been tender of age, took also information of the laws of the land of such persons as be notably learned therein, and finally found your said desire not caused nor grounded in precedent nor in the law of the land ; the which the king that dead is, in his life nor might by his last will nor otherwise alter, change nor abrogate, without the assent of the three estates, nor commit or grant to any person governance or rule of this land longer than he lived'; and that nevertheless 'it was advised and appointed by authority of the king, assenting the three estates of this land, that ye, in absence of my lord your brother of Bedford, should be chief of the king's council, and devised unto you a name different from other counsellors, not the name of tutor, lieutenant, governor, nor of regent, nor no name that should import authority of governance of the land, but the name of protector and defensor, which importeth a personal duty of attendance to the actual defence of the land, as well against enemies outward, if case required, as against rebels inward, if any were, that God forbid ; granting you therewith certain power, the which is specified and contained in an aet of the said Parliament, to endure as long as it liked the king '; the lords then proceed to exhort and require the duke ' to content you with the power abovesaid and declared, of the which my lord your brother of Bedford, the king's eldest uncle, con- tented him ; and that ye none larger power desire, will nor use ; giving you this that is above written for our answer to your foresaid demand, the which we will dwell and abide with withouten variance or changing.' 1 From these proceedings it appears to have been already 1 Rot. Pari. iv. 326. 3 2 4 Parliament Under the [Ch. Second Regency, recognized as constitutional law : (i) That the king does not possess the power of nominating a regent during the minority of his successor ; and (2) that neither the heir presumptive, nor any other person, is entitled to exercise the royal prerogative during the king's infancy (or, by parity of reasoning, his infirmity) ; but that the sole right of determining the persons by whom, and the limi- tations under which, the executive government shall be conducted in the king's name and behalf, resides in the great council of Parliament. 1 6. In 1454 (32 Henry VI.), it having been reported to the House of Lords by a deputation of twelve peers who had waited upon the king, that his mental deranger ment was such that they ' could get no answer nor sign ' from him, the lords 'elected and nominated Richard Duke of York to be protector and defender of the realm of England during the king's pleasure,' with powers similar to those which had been formerly conferred upon the Duke of Gloucester. An Act of Parliament was sub- sequently passed constituting the Duke of York pro- tector of the church and kingdom and the king's chief counsellor during the royal pleasure, or until the Prince of Wales (then only two years old) should attain years of discretion, on whom the said dignity was immediately to devolve. 3 In less than a year the king became slightly better, and at once annulled the Duke of York's protec - torate. Hitherto the peers had assumed the exclusive right of choosing the protector, the Commons being merely assenting parties to the act which ratified his election. But on the next occasion the Commons — who were for the most part strong partizans of the White Rose — took a much more active part, and would appear to have forced the Lords unwillingly to re-appoint the Duke of York. Third Regency. 7- The king being a prisoner in the hands of the 1 Hallam, Midd. Ages, iii. 189. 2 Rot. Pari. v. 241. ix.] Lancastrian and Yorkist Kings. 3 2 5 Yorkists, after the first battle of St. Alban's, was obliged to appoint the Duke his lieutenant to open Parliament in November, 1455. The Commons immediately pro- posed to the Lords that ' whereas the king had deputed the Duke of York as his commissioner to proceed in this Parliament, it was thought by the Commons that, if the king hereafter could not attend to the protec- tion of the country, an able person should be appointed protector, to whom they might have recourse for redress of injuries.' While the Lords were considering the mat- ter, the Commons, two days afterwards, repeated their request ; and after they had left the chamber, the chan- cellor declared that ' it is understood that they will not further proceed in matters of Parliament to the time that they have answer to their desire and request.' Having a third time pressed for an answer, the Com- mons were at length informed that ' the king our sove- reign lord, by the advice and assent of the lords spiritual and temporal being in this present Parliament, had named and desired the Duke of York to be protector and defensor of this land.' In the act of ratification the duke was to hold his office not ' during the king's plea- sure,' as formerly, but * until he should be discharged of it by the Lords in Parliament.' l 8. On the accession of Edward V. at the age of Edward V. thirteen, the queen-mother endeavoured to obtain the regency, but the Duke of Gloucester (afterwards Richard III.) was appointed by a great council of prelates, nobles and chief citizens, protector of the king and kingdom. 9. By statute 28 Henry VIII. c. 7, it was provided Regency Act, that the successor, if a male and under eighteen, or if a c 8 7 Hen " VIII> female and under sixteen, should be until such age in the government of his or her natural mother (if approved by the king), and of such other councillors as the king by letters patent or by his will should appoint ; and the 1 Rot. Pari. v. 284-290 ; Hallam, Midd. Ages, iii. 192. 326 Parliament under the [Ch. king accordingly appointed his sixteen executors to con- stitute the privy council and exercise the authority of the Crown until his son Edward VI. should attain the age of eighteen. By these executors the Earl of Hertford (afterwards Duke of Somerset), the king's maternal uncle, was appointed protector of the realm and guardian of the king's person. This arrangement, though contrary to the late king's will, was confirmed by the assent of the Lords spiritual and temporal ; and shortly afterwards the protector procured a grant of his office, with almost unlimited powers, by letters patent from the young king. 1 Regency Act, iq. No other instance of appointing a regent occurred 0^24!° till the year .175 1, when, after the death of Frederick Prince of Wales, an Act was passed appointing the Princess Dowager of Wales to be guardian and regent in case the Crown should descend to any of the children of Frederick, Prince of Wales, under the age of eighteen years. A council of regency was also nominated by the act ; but the king was empowered to add four other members by instrument under his sign manual, to be opened after his death. 2 George III. ii. The proceedings during the reign of George III. Act' i76^ nCy have a special importance as recent precedents. In 1765 an alarming illness led the king to consider the necessity of providing for a regency in case of his death. At first the king wished Parliament to confer upon him the unconditional right of nominating any person as regent whom he might select. 8 But by the Regency Act, as ultimately passed, the king was empowered to nomi- nate, under his sign manual, either the Queen, the Princess Dowager of Wales, or any descendant of George II. residing in this kingdom, to be guardian of his successor ^while under eighteen years of age) and 1 Burnet, ii. 4, 15. 2 24 Geo. II. c. 24. 3 Walpole's Mem. ii. 98. ix.] Lancastrian and Yorkist Kings. 327 'regent of the kingdom.' A council of regency was appointed by the act, which also defined its powers and those of the regent. 12. On two occasions during the illness, of George III., Proceedings on __ , n 1 1 ^1 the kings in 1788-9, and again in 18 10, the name and authority illness in 1788. of the Crown — through the means of letters, patent under the great seal affixed by the authority of both Houses of Parliament — were used for the purpose of opening Parliament when the king was personally incap- able of exercising his constitutional functions. In 1788, in the discussions concerning the appointment of a • regent, Mr. Fox 'advanced the startling opinion that the Prince of Wales had as clear a right to exercise the power of sovereignty during the king's incapacity as if the king were actually dead ; and that it was merely for the two Houses of Parliament to pronounce at what time he should commence the exercise of his right. 1 Mr. Pitt, however, firmly maintained the absolute right of Parliament to make what provision it thought fit for carrying on the government, and the Duke of York, in the House of Lords, disclaimed the right on behalf of the Prince, who ' understood too well the sacred prin- ciples which seated the house of Brunswick on the throne, ever to assume or exercise any power, be his claim what it might, not derived from the will of the people, expressed by their representatives and their lord- ships in Parliament assembled.' 2 A regency bill was introduced in the Commons and sent up to the Lords, but the king's sudden recovery put a stop to all further proceedings. In 1810, when the king was seized with Second Regency his last mental disorder, the proceedings of Parliament Act in l8ia \ were grounded generally upon the precedent of 1788. An Act was ultimately passed — the royal assent being given by commission under the great seal authorized by a 1 May, Const. Hist. i. 177. 2 Pari. Hist, xxvii. 678, 684. 328 Parliament under the [Ch. Regency Act, I Will. IV. First Regency Act of Queen Victoria, 1837. Second Regency Act, 1840. resolution of both Houses — by which the Prince of Wales was empowered to exercise the royal authority as regent, in the name and on behalf of the king,- but subject to many important limitations, particularly specified. 1 13. By the 1 William IV. c. 2, the late Duchess of Kent was appointed guardian and regent in the event of her present gracious Majesty coming to the throne before attaining the age of eighteen years, and, contrary to former precedents, no provision was made for a controlling council, but the regent was left to carry on the government through the responsible ministers of the Crown, and to act upon their advice alone. 14. On the accession of her Majesty, the King of Hanover became presumptive heir to the throne, and an Act was passed providing that in the event of the Queen's decease, while her successor was out of the realm, the government should be carried on in his name by lords justices until his arrival. 3 15. The last occasion on which Parliament exercised its powers of appointing a regent was on the Queen's marriage, in 1840. An Act was passed by which, in the event of any child of her Majesty succeeding to the throne under the age of- eighteen, the late Prince Consort, as the surviving parent, was appointed regent, without any council of regency, or any limitation upon the exercise of the royal prerogatives, — except an inca- pacity to assent to any bill for altering the succession to the throne, or affecting the uniformity of worship in the Church of England, or the rights of the Church of Scotland. 3 From this general view of the history of regencies we must now return to the particular period of which this chapter more especially treats. 1 For a short but comprehensive summary of the important proceedings relative to the Regency under Geo. III. see May, Const. Hist. i. 175-215. 2 1 Vict. c. 72. 3 3 & 4 Vict, c 52. ix.] Lancastrian and Yorkist Kings. 329 Under Edward IV. and Richard III., Parliament has Parliament - 1 ■ m r~, , .,. , . ,1 . m 1 ^1 under Edward no history. The nobility, thinned by civil war and the iv. and hands of the executioner, and split up into contending R- lch!a:A in - factions, were unable to offer any political resistance to the power of the Crown. The Commons alone were as yet unequal to the contest. Under Edward IV. both Lords and Commons, instead of contending, like their predecessors, for the establishment of rights and the redress of grievances, were subservient to the royal will. His was the first reign in which no public remedial statute was passed, nor even a petition presented similar to those with which we have seen the Commons, in former reigns, approaching the throne. From 1477 to 1483 no Parliament was summoned, — a suspension of the national council without example since 1327. In money matters Edward appears to have made himself as far as possible independent of parliamentary grants. He derived a very large income from the numerous forfeited estates of his enemies ; and all the feudal dues and the customs duties on merchandise were exacted with the greatest rigour. He also extorted frequent Benevolences, tenths from the clergy, and, discarding the specious appellation of 'loans,' by which former kings had endeavoured to disguise the forced contributions of their subjects, he compelled the richer classes to make apparently voluntary gifts, under the new and less plausible name of benevolences. As already mentioned no complaint of any kind appears in the parliamentary records of his reign, but it is evident from a passage in the remarkable address presented to Richard, Duke of Gloucester, when invited, in 1483, to assume the Crown, that the nation, though hitherto silent, had not been insensible to the illegality. ' For certainly we be deter- mined,' say the authors of the address, 'rather to iventure and committe us to the perill of owre lyfs and iopardie of deth, than to lyve in such thraldome and aondage as we have lyved long tyme heretofore, 33° Parliament under the [Ch. Sir John For- tescue's testi- mony to the freedom of the Constitution. oppressed and injured by extortions and newe imposi- tions ayenst the lawes of God and man, and the libertie, old policie and lawes of this realme, whereyn every Englishman is inherited.' 1 Accordingly, in Richard Ill's only Parliament, benevolences were declared by stutute to be for ever illegal. 2 Our consideration of the growth of constitutional government during the 15 th century may be appro- priately closed by a quotation which ' no writer on the English constitution,' says Hallam, ' can be excused from inserting.' Sir John Fortescue, chief justice of the King's Bench under Henry VI., in his treatise ' De Laudibus Legum Angliae,' written for the instruction of the young Prince of Wales, gives the following expo- sition of the nature of the English kingship : — ' A king of England cannot at his pleasure make any alterations in the laws of the land, for the nature of his government is not only regal but political. Had it been merely regal, he would have a power to make what innovations and alterations he pleased in the laws of the kingdom, impose talliages and other hardships upon the people whether they would or no, without their consent, which sort of government the civil laws point out when they declare "Quod principi placuit legis habet vigorem." But it is much otherwise with a king whose government is political, because he can neither make any alteration or change in the laws of the realm without the consent of the subjects, nor burthen them against their wills with strange impositions, so that a people governed by such laws as are made by their own consent and approbation enjoy their properties securely, and without the hazard of being deprived of them, either by the king or any other. The same things may be effected under an absolute prince, provided he do not degenerate into the 1 Rot. Pari. vi. 241. 2 I Ric. III. u. 2. ix.] Lancastrian and Yorkist Kings. 33 1 tyrant. Of such a prince, Aristotle, in the third of his Politics, says, " It is better for a city to be governed by a good man than by good laws." But because it does not always happen that the person presiding over a people is so qualified, St. Thomas, in the book which he writ to the king of Cyprus, " De Regimine Prihcipum," wishes that a kingdom could be so instituted as that the king might not be at liberty to tyrannize over his people ; which only comes to pass in the present case ; that is, when the sovereign power is restrained by political laws. Rejoice, therefore, my good prince, that such is the law of the kingdom which you are to inherit, because it will afford, both to yourself and subjects, the greatest security and satisfaction.' And again : ' As the head of a body natural cannot change its nerves and sinews, cannot deny to the several parts their proper energy, their due pro- portion and aliment of blood ; neither can a king, who is the head of a body politic, change the laws thereof, nor take from the people what is theirs by right, against their consent. Thus you have, sir, the formal institution of every political kingdom, from whence you may guess; at the power which a king may exercise with respect to the laws and the subject. For he is appointed to protect his subjects in their lives, properties, and laws, ; for this very end: and purpose he has the delegation of power from the people, and he has no just claim to any other power but this,' 1 1 De Laudibus Legum Angliae, c. 9, 13. Two centuries previously, Bracton, writing under Henry III. , had borne very similar testimony to the limited nature of the English kingship : ' Rex autem habet superiorem, Deum. Item Legem, per quam factus est rex. Item Curiam suam, videlicet comites, barones, quia comites dicuntur quasi socii regis, et qui habet socium, habet magistrum ; et ideo, si rex fuerit sine fraeno, id est, sine lege, debent ei fraenum ponere, nisi ipsimet fuerint cum rege sine fraeno.' — L. ii. c. 16, § 3. CHAPTER X. the tudor period, (a.d. 1483— 1603.) Reigns of Henry VII., Henry VIII., Edward VI., Mary. General charac- The Tudor period is almost synchronous with the Tudor Period. J^th century, an age remarkable for its material pros- perity, its intellectual and religious activity, and its political retrogression. The mighty impulse given to commerce by the discovery of America and of the pas- sage to the East Indies by the Cape of Good Hope, coupled with the certainty imparted to the science of navigation by the use of the compass, caused an enor- mous increase of the wealth of the middle classes. Intent upon the acquisition of private gain, the merchants and traders were for the most part satisfied to leave questions of government to others, so long as they them- selves were permitted to pursue their avocations in peace. Simultaneously with the extraordinary expansion of commerce there were other causes at work which tended to withdraw men's minds from the consideration of purely political topics. The revival of learning and its rapid dissemination among all classes, through the medium of the printing- press, the profound religious agitation of the Reformation, and the spirit of bold inquiry which it excited concerning matters of thedeepest interest hitherto generally accepted as beyond dispute, — all contributed to concentrate popu- lar attention upon intellectual and religious progress, to the neglect of politics. On the continent of Europe, Ch. x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 333 the introduction of standing armies, and the revolution in the art of war which made it ' a distinct science and a distinct trade/ had emancipated rulers from the chief restraint on their power — the fear of an armed people — and enabled them to either utterly sweep away, or reduce to empty formalities, the national assemblies which had once been as free and potent as our own early Parliaments. The free constitutions of Castile and Aragon were successively overthrown by Charles V. and Philip II.; and the States-General of France, after lan- guishing for a time, ceased altogether in 16 14, until resuscitated in 1789, for their final meeting on the eve of the Great Revolution. In England, too, parliamentary institutions passed through a season of trial. That they did not perish here as on the continent, was mainly due to our insular position, which rendered the nation com- paratively secure against foreign invasion, and thus obviated for a lengthened period the necessity of em- ploying regular troops. 1 In a less degree the personal character of Henry VIII. was also instrumental in the preservation of our liberties. Tyrant as he was, he was yet animated by a scrupulous jregard for the letter of the law. ' While his fellow-tyrants abroad were everywhere overthrowing free institutions, Henry was in all things showing them the deepest outward respect. Through his reign he took care to do nothing except in outward and regular legal form, nothing for which he could not shelter himself under the sanction either of precedent or of written law.' If he ' could get the letter of the law on his side he was satisfied ; otherwise his conscience was uneasy.' 2 This peculiar character of Henry's tyranny, his anxiety to do everything in proper parlia- 1 Macaulay, Hist. Eng. i. 34. Henry VII. had a small body-guard of 50 archers, and Henry VIII. 50 horse-guards, each attended by an archer, demilance and couteiller, making 200 in all ; but even this small force was, probably on account of the expense, soon given up. 2 Freeman, Growth of Eng. Const., 101 : Fortnightly Review, Sept. 187 1, on ' The Use of Historical Documents.' 334 The Tudor Period. [Ch. mentary and judicial form, "while it degraded parlia- mentary and judicial institutions at the time, really did a great deal to strengthen and preserve them for better days.' 1 The Parliament was indeed so disgracefully subservient and sycophantic that there was little tempta- tion for the king to endeavour to destroy an institution which served to cover his most outrageous proceedings with a convenient and plausible appearance of popular approbation. When Henry had cut off Anne Boleyn's head on one day and married Jane Seymour the next morning, the Parliament gravely listened to a speech from the Lord Chancellor, assuring the world that the king did not do it ' in any carnal concupiscence,' and im- mediately proceeded to pass an Act declaring that it was all done ' of the king's most excellent goodness ' ! 2 Such being the temper of the national representatives, it is not surprising to find Henry holding high their privileges, as in Ferrers' Case, 3 or writing to the Pope, in 1529: 'The discussions in the English Parliament are free and unrestricted ; the Crown has no power to limit their debates, or to control the votes of their members. They determine everything for themselves, as the in- terests of the Commonwealth require.' 4 The reaction towards absolutism which had set in during the latter part of Henry VI.'s reign, culminated under Henry VIII. ' We have got into a state of things,' ob- serves Dr. Freeman, ' when Parliaments were ready to proscribe anybody, or to ordain anything, when judges were ready to declare anything to be the law, when juries were ready to find any verdict, when bishops and convo- cations were ready to declare anything to be true and or- thodox, at the mere bidding of the capricious despot on the 1 Freeman, Fortnightly Review, Sept. 1871. 2 Speech of Lord Chancellor Audeley in 1536, Lords' Journals, p. 84 ; 28 Hen. VIII. c. 7 ; Froude, Hist. Eng. ii. 503. 3 Supra, p. 302. 4 State Papers, vii. 361, cited by Froude, Hist. Eng. i, 187. x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 335 throne. We have reached the state which our fore- fathers called unlaw, not the state when law is silent, but the state when law had turned about and become its own opposite, the state when the institutions which were meant to declare right, and truth, and freedom, had been turned into engines of wrong, and falsehood, and bond- age.' 1 Independently of the general political apathy to which allusion has been made, the extraordinary subser- vience of Parliament during the Tudor age, so unlike its demeanour at an earlier and at a later period, is to be accounted for by the fact that the old nobility, the leaders in former struggles for liberty, had been cut off in the War of the Roses, and the Commons had not yet acquired sufficient importance and self-reliance to act alone. The temporal lords summoned by Henry VII. to the Parliament of 1485 were only 29 in number, and of these several were new creations. The new nobility which grew up under Henry VII. and his son owed everything to the royal favour, and were restrained from independent action alike by gratitude, by interest, and by fear of the resolute vengeance which those monarcbs unsparingly dealt out to all who opposed them. A watchful jealousy of all individuals likely to disturb their power was a characteristic of all the Tudor sovereigns. The nobles found safety and advancement by acting the part of courtiers rather than of parliamentary barons. ' Henry VII.,' says Lord Bacon, ' kept a strait hand on his nobility ; and chose rather to advance clergymen and lawyers, which were more obsequious to him, but had less interest in the people.' The same policy was pursued by Henry VIII. and Elizabeth. The remnant of the old nobility, the Percies, Nevilles, and Howards, were disgusted at the advancement of men like Wolsey, Crom- well, Cecil, Bacon, and Walsingham. The rebellion of the earls of Northumberland and Westmoreland, in 1569, 1 Fortnightly Review, Sept. 1871. 336 The Tudor Period. [ch. was as much a protest against the 'newe set-upp nobles' as against the ' new-found religion ' and the incarcera- tion of Mary Queen of Scots, the representative of the ancient faith. 1 At the same time the House of Com- mons, under the restricted franchise introduced by the Act of Henry VI., consisted largely of nominees, servants and pensioners of the Crown. Under Henry VIII. govern- ment interference with elections became a common prac- tice, and in the reigns of Edward VI., Mary and Elizabeth, petty boroughs were specially created in order to be corrupt. But the very fact that it was found needful to pack the House of Commons, and the anxiety which the Tudor monarchs generally displayed to secure the sanction of Parliament for all their proceedings, afford the strongest testimony to the real power and im- portance of the national assembly. Under Elizabeth, the Commons began to resume their firm tone and bear- ing, and henceforth never desisted until they had won back their ancient liberties and established them on a sure foundation. During the 120 years spanned by the Tudor dynasty, the constitutional historian has scarcely any general progress of free principles, any important measure of im- provement to record. The power of the Crown steadily increased until it acquired dangerous proportions ; but it was usually exercised with discretion ; and the want of a standing army acted as a perpetual restraint which did not indeed prevent the Crown ' from sometimes treating an individual in an arbitrary and even in a bar- barous manner, but which effectually secured the nation against general and long continued oppression.' 3 In the 1 In their proclamation the rebels justified their proceedings on the ground that the Queen was surrounded ' by divers newe set-upp nobles, who not onlie go aboute to overthrow and put downe the ancient nobilitie of the realme, but also have misused the Queen's majestie's owne personne, and also have by the space of twelve yeares nowe past set upp and mayn- tayned a new-found religion andheresie contrary to God's word.' — Lingard, Hist. Eng. viii. 45. 2 Macaulay, Hist. Eng. i. 31. .] Hen. VII., Hen. VIII, Edw. VI, Mary. 337 leantime amidst the political lethargy of the great mass f the people, a silent transfer of power was taking place, 'he commercial wealth of the middle classes enabled lem to buy up the estates of the old landed proprietors, rid feudalism gradually died out. 1 The persecution of le Puritans roused up a spirit of opposition to the !rown, and the struggle for religious freedom led on to tie vindication of political freedom also. Under Eliza- eth, opposition was restrained by her personal popu- irity, and by the feeling that a strong government was ecessary amidst the perils to which both she and the ation were exposed from the Pope, from Spain, and ■om France ; but this forbearance ended with the dvent of the House of Stewart. At the commencement f the Tudor period England was a single kingdom, dis- •acted and impoverished by a sanguinary civil war, with cotland as a thorn in her side, and Ireland as a dis- lrbed dependency. At the accession of the House of tewart, she had reached the zenith of material pros- erity, and assumed the position of a United Kingdom. The results of the protracted contest between the Crown Henry VII. nd the people during the middle ages are thus summed 1 The Jaw of strict entail established by the statute De Bonis condition- 'ibus (13 Edw. I. c. I, called also the Statute of Westminster the Second) ldured for about 200 years. But in the 12th Edw. IV. a decision of the Ldges in the celebrated Taltarutiis case had restored the power of aliena- on by means of the collusive judicial proceeding termed a recovery. nother mode of barring an estate tail, though not so effectually as by a icovery, was by a fine, a fictitious action, commenced and then compro- ised by leave of the court, and which barred all claims on the part of the sue not made within a year and a day afterwards. This power of barring ;ture claims was taken from fines by statute 34 Edward III. c. 13 ; but it as again restored with an extension of the time of claim to five years by atute I Ric. III. c. 7, which was re-enacted by the statute of fines, Henry VII. c. 24. The deep designs attributed to Henry VII. in rocuring the passing of the statute of fines as a means of exalting the lyal authority upon the ruins of the aristocracy have been shown by [allam to be without foundation (Const. Hist. i. 11.) The statute forded, indeed, some slightly increased facilities for the alienation of nd, by establishing a short term of prescription, but its efficiency as igards barring entails depended upon a judicial construction of it in the 3 Henry VIII. confirmed by statute 32 Henry VIII. t. 36. 338 The Tudor Period. [Ch. Checks on the royal authority, Taxation. Legislation. Trial by jury. up by Hallam, in enumerating the essential checks upon the royal authority existing at the accession of Henry VII. (i.) 'The king could levy no sort of new tax upon his people, except by the grant of his Parliament, con- sisting as well of bishops and mitred abbots, or lords spiritual, and of hereditary peers or temporal lords, who sat and voted promiscuously in the same chamber, as of representatives from the freeholders of each county, and from the burgesses of many towns and less considerable places, forming the lower or Commons' House. (2.) The previous assent and authority of the same assembly were necessary for every new law, whether of a general or Personalliberty. temporary nature. (3.) No man could be committed to prison but by a legal warrant specifying his offence ; and by an usage nearly tantamount to constitutional right, he must be speedily brought to trial by means of regular sessions of gaol-delivery. (4.) The fact of guilt or innocence on a criminal charge, was determined in a public court, and in the county where the offence was alleged to have occurred, by a jury of twelve men, from whose unanimous verdict no appeal could be made. Civil rights, so far as they depended on questions of fact, were subject to the same decision. (5.) The officers and servants of the Crown, violating the personal liberty or other right of the subject, might be sued in an action for damages to be assessed by a jury, or, in some cases, were liable to criminal process ; nor could they plead any warrant or command in their justification, nor even the direct order of the king.' 1 To these may be added, (6.) The liability of the king's ministers to be impeached by the Commons for mis-government. This constitutional right had not indeed been exercised since the reign of Henry VI., and lay dormant throughout the Tudor period, but it was dormant only, and with the revival of the spirit of liberty under James I. the right of impeach- Legal liability of the servants of the Crown. Impeachment. 1 Const. Hist. i. 2. K.] Hen, VII., Hen. VIII, Edw. VI, Mary. 339 nent was reasserted. Indeed, all these securities, though undoubtedly established by law, were more or less evaded n actual practice by the violent and unconstitutional icts of the Tudor sovereigns. 'The general privileges of the nation were far more secure than those of private men ; ' and on the whole ' there was, perhaps, little sffective restraint upon the government, except in the two articles of levying money and enacting laws.' 1 Henry VII. has been eulogized by Lord Bacon as Henry Vll.'s : the best lawgiver to this nation since Edward I.' His laws are characterized by the same noble author as deep and not vulgar, not made upon the spur of a par- ticular occasion for the present, but out of providence for the future, to make the estate of his people still more ind more happy, after the manner of the legislators in indent and heroical times.' 3 But this high praise is sery inadequately supported by the actual facts. The aws of Henry VII. are few in number, and generally of small public interest. Only two among them — the statute for the security of the subject under a king de facto, and the statute by which a new court was erected reviving the authority of the Star Chamber — at all ipproach Lord Bacon's general description ; and even :hese, though they had important effects in the future evidently were enacted ' upon the spur of a particular occasion,' — namely, the necessity of providing for the security of his somewhat rickety throne. By the first-named Act it was declared that 'no person Statute for the ittending upon the king and sovereign lord of this land ^bjeaimde^a for the time being, and doing him true and faithful service, king de facto. shall be convicted of high treason by Act of Parliament Dr other process of law, nor suffer any forfeiture or Dunishment ; but that every Act made contrary to this statute shall be void and of no effect.' 3 The attempt 1 Hallam, Const. Hist. i. 5. 2 Bacon's Life and Reign of Henry VII. 3 11 Hen. VII. c I. z 2 31° The Tudor Period. [CH. Criminal juris- diction of the court of Star Chamber revived. to bind future Parliaments was of course nugatory ; ' for a supreme and absolute power cannot exclude itself; neither can that which is in its nature revocable, be made fixed.' 1 But from the passing of this statute it has been an accepted constitutional maxim that ' possession of the throne gives a sufficient title to the subjects' allegiance, and justifies his resistance of those who may pretend to a better right.' At the trial of the regicides after the Restoration, some of them endeavoured to justify them- selves under this Act by pleading that they had obeyed the government which was in possession, and were there- fore not traitors. The judges however held that although this would have been a good defence for acts done by authority of a usurping king, it would not avail to cover the proceedings of a non-regal government against one who was indicted and executed being king. At the Revolution of 1688, the provisions of the Act were much relied upon in argument as a reason for accepting William III. as king, instead of establishing a Regency as suggested by Archbishop Sancroft and certain of the Tory party. 2 Henry's attention was early directed to the prevention of conspiracies among the adherents of the House of York, by which his throne was perpetually threatened during the earlier portion of his reign. 3 The practice of ' maintenance ' by which a number of individuals asso- ciated together under some powerful nobleman, whose livery they wore and to whom they were bound by oaths 1 Bacon's Henry VII. ii. 160. 2 See Macaulay, Hist. Eng. ii. 356, 372. 3 Hatred of the House of York was with Henry VII. a passion which even political considerations of expediency could hardly control. ' He never seemed to be weary,' says Mr. Campbell, 'of branding the name of the Yorkists and their supporters with the gravest charges of rebelliousness and want of patriotism ; and we shall see that the name of the late king is never mentioned by him without the favourite iteration of king "in dede but not in right." The state scriveners seem to have received a standing order to introduce this hateful formula into every paper connected with Richard's name, however insignificant.' — Materials for Hist, of Hen. VII., Introd. xiii. :.\ Hen. VII., Hen. VIII, Edw. VI, Mary. 34 1 ind promises, for the purpose of forcibly maintaining his md their own private quarrels, afforded a ready means of •aising forces at short notice to assist the claims of any Dretender. Although prohibited by statute, this practice Df giving liveries to numerous retainers had become general throughout the kingdom. With the view of effec- tually suppressing it, Henry~procured the passing of the statute in the third year of his reign, by which the ;riminal jurisdiction of the ancient Concilium Ordinarium exercised in the Star Chamber was revived and trans- ferred to a new and specially constituted court. 1 The king's object was clearly explained to the Parliament by Morton, Archbishop of Canterbury, speaking on his behalf: 'His Grace {i.e. the king) saith, that it is not the blood spilt in the field that will save the blood in the city ; nor the marshal's sword that will set this kingdom in perfect peace ; but that the true way is to stop the seeds of sedition and rebellion at the beginning, and for that purpose to devise, confirm, and quicken good and wholesome laws against riots and unlawful assemblies of people, and all combinations and confederacies of them by liveries, tokens, and other badges of factious depen- dence ; that the peace of the land may, by these ordi- nances, as by bars of iron, be soundly bound in and strengthened, and all force, both in court, country, and private houses, be suppressed.' 3 Henry VII. has been reproached with his insatiable Exactions of avarice, but it is improbable that he amassed money " enry merely for its own sake. As a clever and unscrupulous political adventurer, who had taken advantage of the dis- turbed state of the kingdom, after an exhausting and pro- tracted civil war, to seize the throne by the aid of the 1 See supra, p. 176. 2 Bacon's Henry VII. The speech of Morton is not found in the Rolls of Parliament, and was possibly invented by Bacon as representing what he considered ought to have been said. In any case, it accurately expresses the object of the statute passed. 342 The Tudor Period. [Ch. 1489 and 1497. Lancastrian faction, he had learnt the value and power of money as a means of buying future, and rewarding past support. 1 Taxation, moreover, was the one point which the mass of the people seem to have considered worth fighting about. Twice during his reign, when general subsidies were granted, formidable insurrections insurrections in broke out ; in 1489 in the North, under John a Chambre and Sir John Egremont ; in 1497 in Cornwall, under Flammock, an attorney, and Joseph, a farrier, who, with 16,000 followers, marched as far as Blackheath in Kent, and, having been joined by Lord Audley, engaged the king's troops, surrendering only after the loss of 2,000 killed and 1,500 made^ prisoners. 3 Hence Henry deemed it politic to squeeze money out of the rich and to avoid general impositions affecting the poorer classes. He first had recourse to benevolences which, as we have seen, had been abolished in Richard III.'s only Parliament as an intolerable grievance. A benevolence extorted by the king in the 7th year of his reign, received, four years later, a kind of parliamentary sanction by ' a shoring or under-propping Act,' making legally pay- able under pain of imprisonment, the arrears which private individuals had promised but not brought in. 3 The inquisitorial and arbitrary nature of the exaction appears from the statement of Lord Bacon that ' there was a tradition of a dilemma that Bishop -Morton the Chancellor used, to raise up the benevolence to a Benevolences. Morton's Fork. ' Notwithstanding his rigid and business-like economy, and his eagerness in the acquisition of wealth, Henry VII. was liberal in spending where an important object was to be gained. There is no parsimony apparent in the numerous grants made to men in every station of life who had assisted him in obtaining the throne. See ' Materials for a History of the reign of Henry VII.', vol. i., A.D. 1485-6, edited by the Rev. W. Campbell, M.A., and published under the direction of the Master of the Rolls, 1873. The usual form of recital in these grants runs ' in consideracioun of the faithfull service which oure true subject and faithfull liegeman hath doone unto us, as wele beyond the see as on this side in oure moost victorious journay and trihumphe, and so during his lyfe mtendelh to do heraftre.' 2 Lingard, Hist. Eng. v. 299, 314. 3 11 Hen. VII. t. 10. x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 343 higher rate ; and some called it his fork, and some his crotch. For he had couched an article in the instruc- tions to the commissioners who were to levy the bene- volence, that if they met with any that were sparing, % they should tell them that they must needs have, because they laid up ; and if they were spenders, they must needs have, because it was seen in their port and manner of living; so neither kind came amiss.' 1 In addition to Other modes of benevolences, Henry extorted large sums by suing for penalties under obsolete statutes ; by rigorously exacting the extreme feudal rights of the -Crown, and by employ- ing the various processes of the courts of law, not for the dispensation of justice, but for the accumulation of fines and penalties. During the latter part of his reign he made use, for this purpose, of the notorious Empson and Em'pson and Dudley, ' lawyers in science and privy counsellors in 7 ' authority, who turned law and justice into wormwood and rapine.' 2 At the accession of Henry VIII. they were both committed to prison, tried, and executed on a frivolous charge of treason. But, while sacrificing to popular resentment the agents of his father's extortions, the new king was careful to retain the fruits of their iniquity in his treasury. 3 Throughout his reign of twenty-four years Henry VII. Parliament , . ,,. , seldom sum- summoned Parliament only seven times, and during the moned by last thirteen years only once, in 1504. To obtain money Hem y vn - was the object on each occasion ; but, like his predeces- sors, he submitted the expediency of his wars to the con- sideration and advice of the national council. His first His riches made Parliament had granted him the duties on tonnage and independent of poundage for life,* and the wealth which he amassed by ie - 1 Bacon's Henry VII. p. 121. 2 Ibid. p. 217. 3 In order to conciliate the nation, an Act (1 Hen. VIII. c. 4) was passed to correct the abuses which had prevailed in finding the king's title to land by escheat, and providing that all suits on penal statutes should be commenced within three years after the time of the alleged offence. 4 Rot. Pari. 1 Hen. VII. 344 The Tudor Period. [Ch. Henry VIII. 1509-1547. Taxation. Wolsey's attempt to in- timidate the Commons. the various means already referred to, by the attainder of the most opulent of the Yorkists, and by revocation, on his own sole authority, of all Crown grants made since the 34 Henry VI. (1454-5), rendered him the richest prince in Christendom, and thus practically independent of parliamentary control. The peculiar characteristics of Henry VI I I.'s reign, — the subservience of Parliament, the real despotism of the king thinly disguised under parliamentary and judicial forms, the fair words uttered, the foul deeds done, — have been already referred to. On one point only — taxation — do we meet with an exception alike to the general servility of Parliament and to the general regard of the king for constitutional formalities. Henry's first Parliament granted him tonnage and poundage for life : but with a proviso 'that these grants be not taken in example to the Kings of England in time to come.' 1 Liberal subsidies were granted by the four following Parliaments for the prosecution of the war with France; but, in 1523, Wolsey took the indis- creet step of going to the House of Commons, and per- sonally urging the grant of £800,000, an unprecedented sum, to be raised by a property tax of 20 per cent, on lands and goods. Many members were inclined to resist his admission into the House, his presence there being evidently calculated to intimidate the members, and thus silence all opposition. It was resolved however to admit him, and on the suggestion of Sir Thomas More, the Speaker, not with a few followers only, but ' with all his pomp, with his maces, his pillars, his pole-axes, his cross, his hat, and the great seal too.' The Cardinal made a long and eloquent oration in favour of joining the Emperor Charles V. in a war against France, and urging the grant of the sum demanded as the estimated cost of the expedition. But all the independent mem- 1 Hen. VIII. c. 20. ..] Hen. VII., Hen. VIII., Edw. VI, Mary. 345 ers opposed a vigorous resistance. Wolsey came down d the House a second time, but the Commons received is harangue with silence ; ' and when the minister de- manded some reasonable answer, every member held his leace. At last the Speaker, falling on his knees, with nuch reverence excused the silence of the House, .bashed, as he said, at the sight of so noble a personage, smo was able to amaze the wisest and most learned men a the realm : but with many probable arguments he • mdeavoured to show the Cardinal that his coming hither was neither expedient nor agreeable to the an- ient liberties of that House ; ' x it being the usage of the Commons to debate only amongst themselves. After ifteen days' debate, a subsidy, much inferior in amount o that which the Cardinal had demanded and payable >y instalments in four years, was at length granted, nainly through the influence of the servants and depend- ints of the Crown holding seats in the House. ' And I >eseeke Almighty God,' wrote a member of the Com- nons to the Earl of Surrey, ' it may be well and peace- tbly levied, and surely payd unto the king's grace, with- >ut grudge, and especially without losing the good will ind true hearts of his subjects, which I reckon a far greater treasure for the king than gold and silver. And he gentlemen that must take pains to levy this money imong the king's subjects, I think shall have no little msiness about the same.' 3 This manifestation of an in- lependent spirit among some of the Commons' House was tgreeable neither to the King nor the Cardinal ; and for learly seven years Parliament was not again summoned. In the mean time recourse was had to forced loans Forced loans ind benevolences. A forced loan had been already . i en ces. :xacted in 1522, every man being required to swear to he value of his possessions, and to contribute a rateable 1 More's Life of Sir T. More. 2 Ellis's Letters Illustrative of English History, i. 220. 346 The Tudor Period. [Ch. portion according to such declaration, on the king's promise of repayment out of the next subsidy granted by Parliament. 1 In 1525, soon after the news of the battle of Pavia had been received, fresh commissioners were appointed with instructions to demand the sixth part of the goods of the laity and the tenth part of the goods of the clergy, on the pretext that the king was about to lead an army into France. This demand was unanimously resisted. The mayor and citizens of London on attempting to remonstrate were warned to beware, lest ' it might fortune to cost some their heads.' The clergy boldly stood upon their privilege to grant money only in Convocation ; asserting that the commis- sion was contrary to the liberties of the realm, inasmuch as the king could take no man's goods without the au- thority of Parliament. By preaching and example they animated the people to resistance. ' When this matter was opened through Englande,' says the old chronicler Hall, 'howe the greate men toke it was marvel; the poore cursed, the rich repugned, the light wits railed ; but, in conclusion, all people cursed the Cardinal and his co-adherents as subversors of the lawes and libertie of Englande. For, thei saide, if men should geve their goodes by a commission, then wer it worse than the taxes of France ; and so England should be bond and not free.' The royal commissioners being forcibly resisted in several counties and a serious insur- rection having broken out in Suffolk, Henry was at length obliged to annul the obnoxious commission, and 'the 1 The form of these 'privy seals,' as the king's promises of repayment were called, ran : ' We Henry VIII. by the grace of God, King of Eng- land and of France, Defender of Faith and Lord of Ireland, promise by these presents truly to content and repay unto our trusty and well-beloved subject, A, B. the sum of , which he hath lovingly advanced unto us by way of loan, for defence of our realm, and maintenance of our wars against France and Scotland. In witness whereof we have caused our privy seal hereunto to be set and annexed the day of the four- teenth year of our reign.' — MS. Instructions to the Commissioners, cited in Hallam, Const. Hist. i. 19. :.] Hen. VII., Hen. VIII, Edw. VI, Mary. 347 emaunde of money ceased in all the realme, for well it ras perceived that the Commons would none paie.' 1 The forced loan having failed, recourse was now had the more specious demand for a voluntary benevo- snce. This being objected to by the citizens of London, ,s illegal under the statute of Richard III., the judges vere consulted, and gave answer that the statute, as he work of an usurper, was not binding on a lawful , overeign. In 1544 another forced loan was exacted from all lersons rated at £50 per annum ; and in the following ■ear a general benevolence from all persons having land o the annual value of 40J., or chattels worth £\^. The ommissioners were instructed that if any one ' should withstand their gentle solicitations,, alleging either loverty or some other pretence which the commissioners hould deem unfit to be allowed, then after failure of lersuasions and reproaches for ingratitude, they were to ommand his attendance before the Privy Council, at such ime as they should appoint, to whom they were to certify lis behaviour, enjoining him silence in the mean time, that lis evil example might not corrupt the better disposed.' 2 The consequences of refusing to contribute may be earnt from the oppressive treatment of two aldermen , if London, Richard Reed and Sir William Roach. Reed Oppressive ras sent down to serve as a common soldier on the ^ ea ' men ' of Reed and Scottish border, where the English army was then in the Roach. ield, with special instructions to the General to employ rim on the hardest and most perilous duty, and to ' use iim in all things according to the sharpe disciplyne militar >f the northern wars.' 8 Having been taken prisoner in he first engagement, the unhappy alderman was com- ' idled to pay much more for his ransom than the bene- 1 Hall, 686-700. 2 Lodge, Illustrations of British History, i. 711, cited in Hallam, Const, list. i. 24. 3 Lodge, p. 80. 348 The Tudor Period. [Ch. volence required of him. Sir William Roach received the milder punishment of imprisonment for three months, on a charge of uttering seditious words. 1 The king twice The forced loans were nominally secured, as we have released from , . , , . , . r , , , his debts by Act seen, by the king s promises of repayment ; but even of Parliament, this shadowy hope of reimbursement was taken away by the Acts of a servile Parliament. On two occasions the king was formally released from his debts. In 1529 a statute was passed by which the Parliament, ' for them- selves and all the whole body of the realm which they represent, freely, liberally, and absolutely, give and grant unto the king's highness, by authority of this pre- sent Parliament, all and every sum and sums of money which to them and every of them is, ought, or might be due, by reason of any money, or any other thing to his grace at any time heretofore advanced or paid by way of trust or loan, either upon any letter or letters under the king's privy seal, general or particular, letter missive, promise, bond, or obligation of repayment, or by any taxation or other assessing, by virtue of any commission or commissions, or by any other mean or means, what- ever it be, heretofore passed for that purpose.' 3 ' When this release of the loan,' Hall tells us, ' was known to the Commons of the realm, Lord ! so they grudged and spake ill of the whole Parliament ; for almost every man counted on his debt, and reckoned surely of the pay- ment of the same, and therefore some made their wills of the same, and some others did set it over to other for debt ; and so many men had loss by it, which caused them sore to murmur, but there was no remedy.' 3 Again, in 1544, just after the exaction of a fresh loan, an Act was passed granting to the king all sums bor- rowed from any of his subjects since 1542, with a further provision that any money which his Majesty should have 1 Lingard, vi. 347. a 21 Hen. VIII. c. 24. 3 Hall, 767. 1 Hen. VII., Hen. VIII, Edw. VI, Mary. 349 ready paid in discharge of these debts, should be :funded by the creditor or his heirs. 1 Under Henry VIII., the offence of high treason was New treasons sxatiously and wantonly extended far beyond the statute. Y mits marked out by the ancient statute of Edward III. t was made treason to dispute, and afterwards to main- lin, the validity of the king's marriage with Anne ioleyn, or the legitimacy of her daughter Elizabeth, It ras declared treason to marry without the royal licence, r have a criminal intercourse with, any of the king's hildren ' lawfully born, or otherwise commonly reputed d be his children, or his sister, aunt, or niece ; ' or for ny woman to marry the king himself, unless she were haste, or had previously revealed to him her former in- ontinence. It was treason to wish by words to deprive he king of his title, name, or dignity, (including the title f Supreme Head on earth of the Church of England) ; to all the king a heretic, or schismaflc, openly to wish him arm, or to slander him, his wife, or his issue. 3 The guilt of reason was even extended from deeds and assertions to he very thoughts of men. It was incurred ' by any erson who should by words, writing, imprinting, or any ther exterior act, directly or indirectly accept or take, idge, or believe, that either of the royal marriages, that nth Catherine or that with Anne Boleyn, was valid, or /ho should protest that he was not bound to declare his pinion, or should refuse to swear that he would answer ruly such questions as should be asked him on those angerous subjects.' 3 'It would be difficult,' says yingard, ' to discover, under the most despotic govern- lents, a law more cruel and absurd. The validity or lvalidity of the two marriages was certainly matter of pinion, supported and opposed on each side by so many 1 35 Hen. VIII. c. 12. > 25 Hen. VIII. c. 22 ; 26 Hen. VIII. c. 13 ; 28 Hen. VIII. c. 18 ; 2 Hen. VIII. c. 25 ; 33 Hen. VIII. c. 21. 3 28 Hen. VIII. c. 7 ; Lingard, vi. 372. 35° The Tudor Period. [Ch. Illustrious victims. Bills of Attainder. contradictory arguments, that men of the soundest judg- ments might reasonably be expected to differ from each other. Yet Henry by this statute was authorized to dive into the breast of every individual, to extort from him his secret sentiments upon oath, and to subject him to the penalties of treason, if those sentiments did not accord with the royal pleasure.' 1 The Earl of Warwick, only son of the Duke of Clarence, brother of Edward IV. ; the Earl of Suffolk, nephew of that king ; the Duke of Buckingham, also of royal descent and the first in rank and consequence among the nobility; the aged Countess of Salisbury, daughter of Edward IV. and mother of Cardinal Pole ; Queen Anne Boleyn ; Bishop Fisher ; Sir Thomas More ; Thomas Cromwell ; the Earl of Surrey ; and the Duke of Norfolk ordered for execution but sayed by the opportune death of "the king, were among the most conspicuous victims to Henry's ferocious ven- geance, policy, or caprice. The forms of law became the engines for the perpetration of judicial murders ; the most trivial evidence was regarded as sufficient to support a conviction for treason ; and during the latter part of Henry's reign even the few advantages which the accused possessed in the ordinary courts were taken away by the habitual employment of Bills of Attainder. 2 To obviate all danger of refutation or of unpleasant dis- closures, Cromwell, by the king's express command, 1 Lingard, vi. 372. 2 A Bill of Attainder differs from an Impeachment thus : Impeachment is a judicial proceeding in which the Commons, ' the most solemn grand inquest of the whole kingdom,' are prosecutors, supporting their accusation by evidence, and the Lords are the sole judges. Attainder is a legislative act, which must pass through the same stages as any other Act of Parlia- ment. It may be introduced in either the Lords or Commons, and after passing through both Houses receives the royal assent. No evidence is necessarily adduced to support it. It is analogous to a bill of pains and penalties, and was originally intended for the punishment of those who fled from justice. The earliest notable instance of its employment was in the banishment by Parliament of the two Despencers, father and son, in the 15th Edw. II. a.d. 1321. — (Proceedings against the Despencers, I St. Trials, 23, 38. ) See supra, p. 293, n. 4. .] Hen. V II., Hen. VIII, Edw. VI, Mary. 35 1 lquired of the judges whether, if Parliament should Accused persons , , . r ■ , , ... not heard in ondemn a man to die for treason without hearing him their defence. 1 his defence, the attainder could ever be disputed. They replied that it would form a dangerous precedent; hat Parliament should rather set an example to inferior ourts by proceeding according to justice ; but that the ourt of Parliament being supreme, an attainder in Par- iament could never, under any circumstances, be subse- [uently questioned in a court of law. 1 By the irony of ate, Cromwell was himself the first to perish by an Act of Attainder hurried through Parliament without hearing lim in his defence. A remarkable example of the way in which Henry VIII. Act pving-the :ontrived to unite the exercise of practically absolute matLnsrtie* lower with respect for constitutional forms — to play the force of law : lespot by the co-operation of his Parliament, — is afforded jy the Act giving the king's proclamations the force of aw. The king having issued certain royal proclama- ions, the judges held that those who disobeyed them :ould not be punished by the council. The king then ippealed to Parliament to give to his proclamations the ibrce of statutes. This request was complied with, but lot without ' many large words.' The Act recites the ;ontempt and disobedience of the king's proclamations ay some ' who did not consider what a king by his royal jower might do,' and then, in order ' that the king might lot be driven to extend his royal supremacy ' enacts that aroclamations made by the king, with the advice of a majority of his council, should, under the penalty of fine and imprisonment, have the force of statutes, but ;o that they should not be prejudicial to any person's nheritance, offices, liberties, goods and chattels, or nfringe the established laws. It was moreover specially ieclared that such proclamations should derive all their brce ' from the authority of this Act,' and that no persons 1 Coke, Inst. iv. 37. 352 The Tudor Period. [Ch. a striking tes- timony to the free constitution it infringed. Power of the Crown increased by the assump- tion of the ecclesiastical supremacy ; by the dissolu- tion of the monasteries ; and by the should 'by virtue of this Act suffer any pains of death ;' but from this provision against capital punishment there was a formidable exception of such persons as ' should offend against any proclamation to be made by the king's highness, his heirs or successors, for or concerning any kind of heresies against Christian doctrine.' x The fact that the king was obliged to obtain this statute, and the considerable limitations with which it was granted, afford ' a striking testimony to the free constitution it infringed, and demonstrate that the prerogative could not soar to the heights it aimed at, till thus imped Jby the perfidious hand of Parliament.' 3 We have seen how the despotism of Henry was rendered possible by the decay and intimidation of the nobility and by the obsequiousness of the Commons. His arbitrary rule was still further augmented by the assumption of the ecclesiastical supremacy and the practical transfer to the Crown of the immense power which the church had hitherto wielded. The dissolution of the monasteries not only supplied Henry with vast wealth with which to bribe the temporal peerage into implicit conformity with his will, but at the same time by depriving twenty-six parliamentary abbots and two parliamentary priors of their seats in the House of Lords, reduced, from a majority to a minority, the spiritual peerage, who alone were likely to be sufficiently independent to offer a serious opposition. 3 The religious 1 31 Hen. VIII. c. 8. 2 Hallam, Const. Hist. i. 35. By the Act 31 Hen. VIII. c. 8, trans- gressors against the king's proclamations were to be tried and punished by certain persons enumerated therein, consisting of the usual officers of the privy council together with some bishops and judges, ' in the star-chamber or elsewhere.' The prescribed number proving inconveniently large, another Act was passed in 1544 (34 Hen. VIII. c. 23) by which the juris- diction was given to a tribunal of nine privy counsellors. 3 In the Parliament which met, after the dissolution of the monasteries, in r539, there were present 41 temporal peers and only 20 spiritual peers. — Henry, Hist. Eng. xii. 151. To the 21 old bishoprics Henry VIII. sub- sequently added 6 new ones, — Westminster, suppressed in 1550, and Bristol, Chester, Gloucester, Oxford and Peterborough, which still exist. x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 353 disputes of the Reformation also contributed in no small religious dis- , . putes. degree to sustain the influence of the crown. The two great parties into which the nation was divided were too jealous of each other, too intent upon winning the favour of the king in order to crush their adversaries, to offer any real resistance to the encroachments of royal power. Notwithstanding his many vices, Henry VIII. was on Popularity of the whole popular with the mass of his subjects. The Henr y VI11 - times were peculiarly favourable for the exercise of a * strong paternal government. Henry secured to the people that domestic peace for which they so ar- dently longed ; and recognizing the spirit of the age as antagonistic to the tyranny of the Church, wisely headed the movement, and adroitly made use of it to secure his own personal ends, and to establish the tyranny of the Crown. His wars were uniformly successful, and if the maintenance of the balance, of power between the Emperor Charles V. and Francis I. of France was pro- ductive of no material advantage, it flattered the pride of the English people, and exalted them in the estima- tion of the European nations. During the earlier portion of his reign at least, he displayed a frank, affable, and generous temper ; he was no mean scholar ; expert in all manly exercises ; of noble presence and elegant bearing ; and he at all times devoted a large portion of time to the arduous duties of personal government. Amidst the perils and dangers, foreign and domestic, to which the nation was on several occasions exposed during Henry's reign, men felt that in him they pos- sessed an able, vigorous, and thoroughly national administrator. 1 The consolidation of the kingdom with respect to Consolidation 1 For all that can possibly be said in Henry VIII. 's favour see Froude, Hist. Eng., vols, i.-iv. It is unnecessary, in order to recognize the abilities and greatness of Henry, that we should, with Mr. Froude, regard him as a virtuous and beneficent ruler. A A 354 The Tudor Period. [Ch. of the kingdom, both Wales and Ireland, was considerably advanced under Henry VIII. By the Statutum Walliae (12 Wales. Edward I. A.D. 1284) the land of Wales and its in- habitants, theretofore subject in feudal right to the kings of England, had been wholly annexed and united to the English crown. But, although many material alterations were at the same time made in the Welsh laws, the con- quered people still retained several provincial immunities and disabilities. They preserved their ancient rule of inheritance, by which lands were divided equally among all the issue male, instead of descending to the eldest son alone ; but on the other hand, with the exception of two Parliaments of Edward II. in 1322 and 1326, to which 24 members were summoned as representatives of south, and other 24 as representatives of north Wales, 1 the Welsh people had continued without any representa- tion in the House of Commons. By the statute 27 Henry VIII., c. 26, Wales was thoroughly incorporated into and united with England ; all persons born in the principality were admitted to enjoy and inherit all the freedoms, liberties, rights, privileges and laws of Eng- land ; and lands in Wales were declared to be inheritable after the English tenures and rules of descent. By a subsequent statute (34 & 35 Henry VIII., c. 26), Wales was divided into 12 counties, 2 each empowered to send one knight to Parliament ; and every borough, being a shire town, was to send one burgess. At the same time the County Palatine of Chester was admitted to 1 New Rymer, ii. 484, 649 ; Lingard, iii. 328. 2 This was exclusive of Monmouthshire, which, though formerly part of Wales, had been made, by the 27 Hen. VIII. c. 26 before mentioned, one of the counties of the realm of England. Under the statute 34 & 35 Hen. VIII. c. 26 (1542-3), superior courts of justice called Courts of Great Session were established, with a jurisdiction independent of the process of Westminster Hall. These continued to administer law and equity in civil cases and also criminal matters arising within the principality down to the year 1830, when the courts were abolished by statute (1 Will. IV. c. 70), and it was enacted that assizes should be held in the principality for the trial of all matters criminal and civil in like manner and form as had been usual for the counties in England. x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 355- parliamentary representation, two knights for the county, and two burgesses for the city of Chester. 1 During the Wars of the Roses, the authority of the Ireland. English crown over Ireland had sunk to a very low ebb. At the accession of Henry VIII. his rule was practically limited, with the exception of the principal seaports, to the English pale, consisting of the eastern half of the five counties of Louth, Meath, Dublin, Kildare and Wexford. The western half of these counties was a march land, more disorderly, if possible, than the rest of the island, which was divided among a large number of petty chieftains, mainly of Irish but partly of English origin, who governed the inhabitants of their respective territories and made war upon each other with the free- dom of independent princes. Under the strong govern- ment of the Tudor kings the English ascendancy in Ireland was re-asserted and placed upon a firmer basis than it had occupied since the days of Henry II. In the contest between the rival houses of York and Lancaster, the Anglo-Irish had for the most part espoused the cause of the White Rose, and they readily gave their support to the two pretenders who successively put in jeopardy the throne of Henry VII. 2 It was with the view of reducing to subjection the settlers within the pale, that in 1495 was passed the celebrated Poynings' Poynings' Law, Law, as the statute of Drogheda was styled from Sir A,D ' I495, Edward Poynings, the deputy of young Henry, duke of York (afterwards Henry VI 1 1.), who at the age of four years had been appointed Lord Lieutenant of Ireland. This statute contained a variety of provisions for restrain- ing the power of the great lords within the pale, and strengthening the royal authority. Its two most im- 1 34 & 35 Hen. VIII. c. 13. 2 Lambert Siranel was undoubtedly an impostor. It is a question of much uncertainty who the young man really was who called himself Richard Duke of York, son of Edward IV., and who is generally styled by historians Perkin Warbeck. The evidence is not conclusive either way, but the balance seems to incline in favour of his pretensions. 356 The Tudor Period. [Ch. portant enactments were : (i.) All statutes 'lately made in England, and belonging to the public weal of the same,' should have the force of law in Ireland. (2.) No Parliament should in future be holden in Ireland till the king and his council had been informed by the Lieutenant of the necessity of the same, and of the acts proposed to be passed in it, and the royal licence and approbation had been previously obtained. By securing the initiative power to the king and his English council, a check was placed upon the action of every Irish Parliament, and upon the lord-deputies, sometimes powerful Irish nobles ■ whom it was dangerous not to employ, but still more dangerous to trust.' 'Whatever might be its motive,' says Hallam, ' it proved, in the course of time, the great means of preserving the subordination of an island, which, from the similarity of constitution, and the high spirit of its inhabitants, was constantly panting for an independence which her more powerful neighbour neither desired, nor dared to concede.' ' The stern and systematic despotism of Henry VIII., coupled with the intimidation produced by his relentless vengeance against the powerful family of Fitzgerald, had still greater effect in reviving the royal authority. From a lordship, — the title which it had hitherto borne under the successors of Henry II., — Ireland was raised to the higher rank of a kingdom ; 2 the native chiefs came in and submitted ; peerages were sought and obtained, not only by the Anglo-Irish, but by some of the most power- ful of the old Irish families; 3 and although still far from secure, the English government in Ireland assumed during the last years of Henry VIII. a much more 1 Const. Hist. iii. 362. 2 Henry assumed the style of King of Ireland, January 23, 1542. The change was confirmed in 1544 by Act of Parliament, 35 Hen. VIII. c 3- 3 William Bermingham was created Lord Carbery in 154 1 ; Con O'Neal and his son Matthew, respectively Earl of Tyrone and Lord Dungannon in 1542 ; Morogh O'Brien was made Earl of Thomond, Ul ick de Burgh, Earl of Clanrickard, and Donough O'Brien, Lord Ibracken, in 1543. x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 357 settled aspect than it had borne for very many years previously. The ecclesiastical changes under Edward VI. and Edward VI. Mary, as well as those effected by Henry VIII., will be I547_I5S3 - treated of in the succeeding chapter on the ' Reforma- Mary > tion in England.' In their civil aspect the reigns of Edward VI. and Mary were scarcely, if at all, less Character of despotic than that of their father, although we shall see government. some signs that the House of Commons was beginning to recover a little of its ancient independence.. The youth of Edward VI. precluded him from exeroising any but a very slight influence upon affairs, the royal power being practically vested first in the Protector Somerset and afterwards in John Dudley, Duke of Northumber- land. One of the first acts of the young king's advisers New treasons J ° ° abolished, was to endeavour to propitiate the nation by abrogating some of the sanguinary and unconstitutional laws of Henry VIII. By a statute of Edward's first Parliament all new treasons and felonies created during the last reign were abolished ; and the act of Edward III. again became the standard of high treason, except that to affirm in words or writing that the king was not, or that the Pope was, head of the Church, still remained a treasonable offence. 1 In 1552, however, after the fall of Somerset, many of Butarere- the treasons created under Henry VIII., and abolished enac e inI 55 2 - by this statute, were re-enacted, together with some new ones. 2 But in this Parliament the Commons exhibited Two witnesses an unwonted independence and zeal for liberty and jus- ^treason." ° aSeS tice. They threw out the bill as originally framed by the ministers and substituted one of a much more mode- rate nature, in which was embodied ' one of the most important constitutional provisions which the annals of 1 1 Edw. VI. c. 12. 2 5 &6Ed. VI. c. 11. 358 The Tudor Period. [Ch. the Tudor family afford.' 1 The constant complaint of persons accused of treason, that they could not establish their innocence because never confronted with their accusers, had brought home to the public mind the iniquity of the usual method of procedure. It was now enacted that no person should in future be indicted or attainted for any manner of treason except on the testi- mony of two lawful witnesses, who should be brought face to face with the accused at the time of his trial, unless he should willingly confess the charges. Although shamelessly evaded, or utterly disregarded, in the State- trials under Elizabeth and James I., this salutary statute was ultimately recognized, when all ranks and parties had learnt moderation in the school of adversity, as the foundation of a rule of procedure which has afforded to the subject ' a mighty safe-guard against oppressive prosecutions.' 2 1 Hallam, Const. Hist. i. 40. 2 Foster, Crown Law, 238. Treason by the Law of Treason. — The crime of High Treason as it existed at Common Common Law. Law prior to the statute of Edward III. was vague and indefinite. The fundamental principle upon which the law of treason was based, was the allegiance, either natural or local, due from every man who lives under the King's protection. The smallest breach of allegiance was punished as treason ; but the ruling of the judges as to what constituted a breach was at once arbitrary and unlimited, varying in different reigns according as the power of the king or of the barons happened to be in the ascendant. In the reign of Edward I. appealing to the French courts, in opposition to the lung's, was adjudged high treason in the case of Nicholas Segrave. Under Edward II. the Spencers were accused of 'accroaching' or exercising 'royal power,' by keeping the administration in their own hands, though without violence to the sovereign. A similar charge was brought against Roger Mortimer in Edward III.'s reign. Killing the king's uncle, father, brother, or even a messenger, was held to be treason, and a knight was indicted for the treason of ' accroaching royal power ' by assaulting one of the king's subjects on the highway, and forcibly detaining him till he paid fyo. At length, after frequent complaints and petitions from the Commons against the arbitrary decisions of the courts, the popular statute of 25 Ed- Treison by stat. ward III. st. 5, c. 2, was passed, strictly defining the limits of treason 25 Edw. Ill, (supra, p. 251, n. ) Seven heads of treason were declared by this statute, which also provided that no other cases should be adjudged by the judges to be treason until the King and his Parliament should declare whether they ought to be so judged. The treasons enumerated in the statute of Edward are : (1) ' When a man doth compass or imagine the death of our lord the King, or of our lady the Queen, or of their eldest son and heir ; or (2) if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King s eldest son and heir ; or (3) if a man do x.] Hen. VII., Hen. VIII. f Edw. VI, Mary. 359 The same Act of Edward's first Parliament which re- Repeal of the Act giving the pealed the new-made treasons of Henry VIII., repealed king's procla- levy war against our lord the King in his realm, or (4) be adherent to the King's enemies [ = aliens, subjects of a hostile foreign power] in the realm, giving them aid and comfort in the realm or elsewhere, and [in any such case] thereof be proveably attainted of open deed by people of their condition [par gents de lour condition = the 'judicium parium of Magna Charta.] (5) And if a man counterfeit the King's great or privy seal, or his money ; (6) and if a man bring false money into this realm, counterfeit to the money of England, knowing the money to be false, to merchandize or make payment, in deceit of the King and his people ; (7) and if a man slay the chancellor, treasurer, or the King's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and deter- mine, being in their places, doing their offices.' The offence of counterfeiting the king's seals or his coins ought always to have been regarded as a branch of the crimen falsi, or forgery, rather than a species of the crimen laesae majestatis, or treason ; and by the recent statutes, 24 & 25 Vict. cc. 98, 99, it is now punishable as felony only. Of the other species of treason enumerated it is unnecessary here to notice more than two, the 1st and 3rd. (1) Compassing or imagining the death of the King. A king, within the meaning of the Act, must be in actual possession of the crown. Only a .king de facto is the object of treason; a king de jure, who has merely a title or claim to the crown without possession, has no right to allegiance. Accordingly the Act, 2 Henry VII. c. I, which is declaratory of the Common Law, declares that no person shall be convicted or attainted of treason for serving and paying allegiance to a king de facto. The words compass and imagine are synonymous, and denote the purpose or design of the mind or will, even though the purpose or design take not effect ; but the statute specially requires that the traitorous imagination be manifested by some overt or open act. Still, it is the mental act which, under this head of the statute, constitutes the crime of treason ; and there- fore in the trial of the Regicides, in 1660, it was held that not the decapi- tation of Charles I. but the ' compassing ' his death constituted the treason, and that the killing was only an overt act proving the compassing. Meeting and consulting how to kill the king, although no scheme be finally adopted, is an overt act ; and every person who assents to overtures for that purpose, or who encourages others, by advice, persuasion or command, to commit the fact, shares in the guilt. Sir Everard Digby was convicted of high treason for being privy to and not revealing the Gunpowder Plot, although it was not proved that he either said or did anything at the consultation. Not merely personal plots of assassination, but all wilful and deliberate attempts which may immediately, or consequentially, endanger the life of the Sovereign, have been held within the scope of the statute. Thus a conspiracy to depose or imprison the king has been constructively de- termined to be an overt act of compassing his death ; ' for experience hath shewn,' observes Sir Michael Foster (p. 196), 'that between the prisons and the graves of princes the distance is very small. ' Other offences still less personal, but having a remote tendency towards the same end, have been held to be overt acts under this head of treason. Entering into measures in concert with foreign powers, to invade the kingdom, would seem more properly to fall under the head of levying war or of adhering to the king's enemies. But unless the powers incited be actually at war it will not fall within any branch of the statute, except compassing the king's death. And even when the overt act would have properly fallen within the clause of adhering, it has been held an overt act of compassing, as in the case of (i.) Compassing the king's death. Overt acts of compassing. Corresponding •with foreigners to invade the 360 The Tudor Period. [Ch. mations the force of law. also the statute which had given to that monarch's pro- clamations the force of law. But this made little prac- Strained con- structions of the statute. ' Levying war. Words. Patrick Harding, who raised and sent men to France, then at open war with us, for the purpose of restoring James II. The Duke of Norfolk was convicted contrary to all law and justice, of a treason resting on presumptions and inferences only. The overt act was his intended marriage with Mary Queen of Scots, and his correspondence with the Duke of Alva to raise an army to invade the kingdom. It was argued that as Mary had formerly laid claim to the crown, whoever married her would support Iier title, and consequently endeavour to depose Queen Elizabeth. The letters to Alva had no signatures, and were only proved to be the Duke's by reading the confession of an agent, who vouched for their authenticity. A distinct act of treason, such as levying war, has been decided to be an overt act of compassing. The statute 29 Hen. VI. c. I, which attainted Jack Cade of rebellion, declared that {gathering men together and exciting them to rise against the king was an overt act of imagining his death. Mere loose words spoken, not relating to any treason- able purpose in agitation, are not an overt act ; but words may expound an overt act, in itself indifferent, and words of advice and persuasion in con- templation or prosecution of a traitorous design, actually on foot, may be overt acts. Words written and published, either in letters or books, where the matter contained imports a compassing, have_ been held overt acts. It was so held in Twyn's case (15 Car. II.), for publishing ' A Treatise of the Execution of Justice,' asserting that the supreme magistrate was accountable to the people, and that they might take up arms to put the king to death : and in Williams' case, (17 Jac. I.) for enclosing and sending in a box to James I. a book declaring that the king should die in the year 1621, and that the kingdom should be destroyed. Under the Stewarts, even un- published writings were made use of to convict their authors of treason, as in Peacham's case, in whose study was found a manuscript sermon which had never been preached or published ; and in that of Algernon Sidney, at whose trial for participating in the Rye House Plot, the want of a second witness was supplied by the production of a discourse found in his closet, and evidently written many years before, in which it was maintained that kings were accountable to the people for their conduct. (2) The third species of treason enumerated in the Statute of Edward III. is that of levying war, which lies not in the intention or purpose, but in the act itself. The levying must be against the king, which is either direct, against his person, or constructive, against his government. Enlisting and marching have been held sufficient acts without coming to a battle or Acts of levying, action. Attacking the king's forces in opposition to his authority, upon a march or in quarters, and holding a castle or fort against the king or his forces, if actual force be used in order to keep possession, have been held a sufficient levying of war. The true criterion as to what unlawful assemblies amount to a levying of war is, Quo animo did the parties assemble 1 and to constitute the offence the object of the assembly must be to effect by force something of a public and general concern. For if the assembly be upon account of some private quarrel, or to take revenge on particular persons, the statute of Edward itself has specially declared that it is no treason. ' If any man,' says the statute, ' ride armed, openly or secretly, with men of arms against any other to slay or to rob him, or to take and keep him till he make fine for his deliverance, it is not the mind of the king or his coun- cil that in such case it shall be judged treason ; but it shall be judged felony or trespass according to the law of the land of old time used and according as the case requireth.' In accordance with this principle, and within the reason and equity of the statute, while on the one hand, popular risings to (ii. ) Levying war against the king. x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 361 tical change with regard to royal proclamations. Several But illegal were issued during Edward's reign, enforced by penalty maintain a private claim or to destroy particular enclosures, or to break prisons in order to release particular persons, and risings of men of a particular class against others of the same class, — as of the weavers in and about London, who rose to destroy all engine-looms because those machines enabled those of the trade who made use of them to undersell those who had them not— have been held not to amount to levying war within the statute : on the other hand, with equal reason, every insurrection which in judgment of law is intended against the person of the king, either to dethrone or imprison him, or to oblige him to alter his measures of government, or to remove evil councillors, — although not conducted with military array — has been held to be a levying of war within the statute. Another class of popular risings, not levelled at the person of the king, but ' against his Royal Majesty,' that is, against the established law and government, have been brought within the clause of the statute against ' levying war against the king,' by constructions scarcely less strained than those upon compassing his death. Acting upon the logical distinction between general and particular purposes, but regardless of the fact that in the majority of cases there was an entire absence of any intention either to depose the sovereign or to generally subvert his government, the courts held trifling insurrections for the purpose of destroying all brothels, or of throwing down all enclosures or all dissenting meeting houses (case of Damaree and Purchase, arising out of Sacheverell's trial, St. Tr. viii. 218, 267), or to enhance the price of all labour, or to open all prisons, or to expel all foreigners, or to redress real or imaginary national grievances in which the insurgents had no special interest, — to be constructive ' levyings ' within the statute. It is to be noted that the Statute of Edward III. entirely omitted in its Conspiracies enumeration of the modes whereby treason could be committed, to include to levy war. the act of conspiring or consulting to levy war. But by a strained construc- tion it gradually became the established doctrine that a conspiracy to levy , war against the king's person, though not 'in itself a distinct treason, might be received in evidence as an overt act of compassing his death. Notwith- standing this construction, however, it was thought necessary under Elizabeth, Charles II. and George III. to pass temporary acts rendering a -conspiracy to levy war treasonable. (13 Eliz. t. 1 ; 13 Car. II. c. 1 ; 36 Geo. III. c. 7.) The disposition to extend a constructive interpretation to the Statute of Edward III. continued to increase down to the end of Geo. III.'s reign, during which it was carried to a great length, especially by Chief- Justice Eyre in the trials of 1794. Finally by the 57 Geo. III. c. 6, 35 q c0- jjj_ making perpetual the temporary Act, 36 Geo. 3, c. 7 (the main object c ^ an j 57 of which seems to have been to turn into substantive treasons certain things g e0 [ jj/ € Cm 6. which had been judicially construed to be treasonable) it is enacted : (1) that if any person shall, within the realm or without, compass, imagine, invent, devise or intend death, destruction or any bodily harm, tending to death or destruction, maim or wounding, imprisonment or restraint of the person of the King, his heirs and successors ; and shall express, utter, or declare such intention by publishing any printing or writing, or by any overt act or deed ; being legally convicted thereof upon the oaths of two lawful and credible witnesses, — he shall be adjudged a traitor and suffer as in cases of high treason. (2) It was also declared by the same Act that it should be , treason to compass, imagine or intend (such intention being expressed by print, writing, or overt act) to deprive or depose the king or his successors from the style, honour, or kingly name of the imperial crown, or to levy war within the realm, in order by force to compel the sovereign to change his measures or counsels, or to overcome either House of Parliament, or to stir 362 The Tudor Period. [Ch. still continued to be issued. of fine and imprisonment; and by one issued in 1549, all justices of the peace were commanded to arrest Treason- Felony Act, II & 12 Vict. c. 12. Treasons created by 1 Anne, st. 2, e. 17 ; 6 Anne, c. 7 ; l&$Vicl.c. 52. Evidence. Statute of Bdw. VI. any foreigner with force to invade this realm, or any of the King's dominions. Neither under this Act, nor, as we have seen, under any of the judicial constructions, was the speaking of words, not written or published, held to amount to an overt act of treason, unless the words were direct councillings or persuasions in prosecution of a traitorous design actually on foot. Thus the law continued down to the year 1848, when the II & 12 Vict. c. 12 ' An Act for the better security of the Crown and Government of the United Kingdom ' was passed. By this Act, commonly called the ' Trea- son-Felony Act,' the latter part of the statute 57 Geo. III. not relating to the King's person was repealed, and the offences therein enumerated were made felonies, but with the addition of the words ' open and advised speaking ' to the other modes of expressing the compassing. In addition to the species of treason already enumerated, the three fol- lowing have been created by statutes still in force. (1) By 1 Anne, st. 2, c. 17, s. 3, the endeavouring to deprive or hinder any person being the next in succession, according to the limitations of the Act of Settlement, from succeeding to the Crown, and maliciously and directly attempting the same by any overt act. (2) By 6 Anne, c. 7, the maliciously, advisedly and directly, by writing or printing, maintaining and affirming that any other person hath any right or title to the crown of this realm, otherwise than according to the Act of Settlement, or that the kings of this realm, with the authority of Parliament, are not able to make laws and statutes, to bind the crown and the descent thereof. {Supra, p. 204.) (3) By 3 & 4 Vict. c. 5 2 j s ' 4 (having reference to a contingency which cannot now happen, viz., that any issue of the Queen should ascend the throne under the age of 18), it was enacted that any person aiding or abetting in bringing about a marriage to, as well as any person so marrying, such issue under the age of 18, without the consent in writing of the regent, and the assent of both Houses of Parliament previously obtained, should be guilty of treason. At common law, one positive witness was sufficient in the case of treason as in every other capital case. But by the salutary Act, 5 & 6 Edw. VI. c. 11, to which reference has been made in the text, it was enacted ' that no person shall be indicted, arraigned, condemned, convicted, or attainted, for any treasons that now be, or hereafter shall be, which shall hereafter be perpetrated, committed or done, unless the same offender or offenders be thereof accused by two lawful accusers ; which said accusers, at the time of the arraignment of the party accused, if they be then living, shall be brought in person before the party so accused, and avow and maintain that that they have to say against the said party, to prove him guilty of the treason or offences con- . tained in the bill of indictment laid against the party arraigned.' Yet for a century after the passing of this Act, little if any regard was paid to it in crown prosecutions, or indeed to the common well-known rules of legal evidence. It was even contended that a statute of I & 2 Phil. & Mary, c. 10 (which, as Sir Michael Foster has shown, was really meant to restore to the accused ' the benefit of a trial by jury of the proper county, with all the advantages of defence peculiar to that method of trial, where former statutes had deprived him of it '), had repealed the statute of Edward VI. by enacting that ' all trials for any treason shall be according to the due order and course of the common law and not otherwise.' At the .trial of the Regicides, however, and upon Lord Stafford's trial, it was treated as a point beyond all doubt that the law required two witnesses ; and from the date ot the Restoration the wholesome distinction (subsequently established by the statute of William III. ) appears to have been taken that although the two x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 363 ' sowers and tellers abroad of forged tales and lies,' and to commit them to the galleys, there to row in chains witnesses may depose to different overt acts, the acts must relate to the same species of treason; so that one witness to an alleged act of compassing the king's death cannot be conjoined with another deposing to an act of levying war, in order to make up the required number. In 1691 a bill for the ,if!^f e "? TTT regulation of trials upon charges of high treason, passed the Commons ; but William ■<■"• in consequence of the opposition of the court and a dispute between the two Houses, it fell to the ground. Though more than once revived, the obstinacy of the Commons in resisting a very just and reasonable amend- ment of the Lords as to the trial of peers in the court of the High Steward, delayed the passing of the measure until 1695, when it became law as the Act 7 Will. III. c. 3. It provides that prisoners indicted for high treason shall have a copy of the indictment delivered to them five days at least before the trial, and a copy of the panel of the jurors two days before the trial ; that they shall be allowed the assistance of counsel throughout the trial, and be entitled to process of the court to compel the attendance of their witnesses, who must be examined on oath. It removes any doubts as to the statute of Edw. VI. by requiring the oaths of two lawful witnesses, either both to the same overt act, or one of them to one, and the other to another overt act of the same treason ; unless the prisoner shall willingly, without violence, in open court, confess the charge. It limits prosecutions for treason to the term of three years from the commission of the offence, except in the case of attempted assassination of the king. The contested provision as to the trial of peers (intended to remedy a serious defect in the constitution of the court of the High Steward, in which the Peers-triers were a select number returned at the nomination rjf the High Steward) was included in the Act, which provided that all peers having a right to sit and vote in Parliament shall be summoned on the trial of any peer for treason, and that every peer so summoned and appearing shall vote in the trial. By a later statute, 7 Anne, c. 21, the time for delivering a copy of the indictment to Statute of Anne. the prisoner was extended to ten days, and it was directed that a list of the witnesses intended to be brought for proving the indictment, and of the jury, with their professions and places of abode, shall be delivered to the prisoner at the same time with the copy of the indictment. But the operation of this clause was suspended until after the death of the Pretender. In recent times the tendency of the legislature has been to restrict rather than to enlarge the crime of treason. Since the passing of the ' Riot Act,' 1 Geo. I. st. 2, c. 5, the government have possessed a great accession of strength in dealing with all tumultuous risings attended with violence, and can more advantageously treat the offence as felony under that Act than as treason. A large number of offences formerly punishable as treason have been removed into the class of ' treason-felony ' by the Act 1 1 & 1 2 Vict. c. 1 2, to which reference has already been made. By another Act of the present reign, 5 & 6 Vict. c. 51, the offence of any person discharging, pointing, aiming or presenting at the person of the Queen, any gun or other arms, (whether containing explosive materials or not) ; or striking at or attempt- ing to throw anything upon her person ; or producing any firearms or other arms, or any explosive or dangerous matter near her Majesty's person ; — with intent to injure or alarm her, is declared to be a high misdemeanour and punishable by penal servitude for seven or not less than three years ; or by imprisonment for not more than three years, and (if the court shall so direct) by a whipping not more than thrice during that period. A conviction under this statute may be supported by the like evidence as if the prisoner stood charged with murder, so that the rule requiring 364 The Tudor Period. [Ch. Insurrections in 1549. Their origin. as slaves during the king's pleasure. 1 The same prac- tice was continued under Mary, who in the last year of her reign went so far as to issue a proclamation which, after denouncing the importation of books filled with heresy and treason from beyond sea, declares that who- soever should be found to have such books in his posses- sion should be reputed and taken for a rebel, and executed according to martial law. 3 The year 1549 was remarkable for the tumults and insurrections of the common people which arose in many counties. In Cornwall and Devonshire under Arundel, and in Norfolk under Ket, the risings assumed formid- able dimensions, and were suppressed with some diffi- culty. They arose partly from opposition to the re- formed doctrines, but mainly from discontent at the proceedings of the larftiowners, who, regardless of the ancient commonable rights of their tenants, made large enclosures of the waste or common lands of manors, and, experience having shown that the growth of wool was more profitable than that of corn, converted the arable land into pasture. This strictly commercial mode of dealing with their estates was especially adopted by the new-made nobles and gentry who had acquired a large share of the confiscated abbey lands, and both they and the reformed religion which they professed became ob- jects of hatred to the thousands of agricultural labourers whom the restriction of tillage had thrown out of em- two witnesses is in this case dispensed with. By the 33 & 34 Vict. c. 23, forfeiture and attainder for treason or felony have been abolished. On the subject of this note see Foster, Crown Law ; Hale, Pleas of the Crown; Kelyng, Crown Cases (3d ed.); Hawkins, Pleas of the Crown. 1 Strype, ii. 149, cited by Hallam, Const. Hist. i. 38. 2 Strype, iii. 459 ; Hallam, Const. Hist., i. 43. There was some excuse for this arbitrary proceeding in the fact that a violent libel had recently been written at Geneva by Goodman, a refugee, exciting the people to dethrone the Queen ; and that, in 1557, Sir Thomas Stafford, a grandson of the Duke of Buckingham beheaded by Henry VIII. , had sailed from Dieppe with the connivance of the French king, and landing at Scarborough with a small force had vainly endeavoured to raise the people in rebellion against ' the most devilish devices of Mary, unrightful and unworthy queen.' (Strype, iii. 259-262.) x.] Hen. VII., Hen. VIII., Edw. VI, Mary. 3 6 5 ployment, and the curtailment of commons had deprived of one great source of support. 1 For the suppression of Act against ,, . . . . . , , unlawful and these risings in future, a very severe Act was passed by rebellious Parliament against unlawful and rebellious assemblies, assemblies. by which it was declared to be treason for any twelve persons to meet together on any matter of state, and felony if the object of the assembly was to destroy enclosures. 3 Independently of the sanguinary religious persecutions Violence of , ,, . . , ... , ., Mary's reign. of Mary s reign, her civil government was characterized by much violence and arbitrariness. Reference has already been made to her proclamation ordering the possessors of heretical and seditious books to be exe- cuted by martial law. Her zeal for the restoration of the Roman Catholic religion caused her to anticipate the authority of Parliament in her dealings with the clergy and the services of the church which she found legally established at her accession. She followed the example of her predecessors in extorting loans from her subjects. 3 She imposed a duty upon foreign cloth without 1 ' Parallel to the religious Reformation, social changes of vast importance were silently keeping pace with it. In the break up of feudal ideas the relations of landowners to their property and their tenants were passing through a revolution ; and between the gentlemen and the small farmers and yeomen and labourers were large differences of opinion as to their respective rights. The high price of wool and the comparative cheapness of sheep farming continued to tempt the landlords to throw their ploughlands into grass, to amalgamate farms, and turn the people who were thrown out of employment adrift to shift for themselves. The commons at the same time were being largely enclosed, forests turned into parks, and public pastures hedged round and appropriated. Under the late reign these ten- dencies had with great difficulty been held partially in check ; but on the death of Henry they acquired new force and activity. The enclosing, especially, was carried forward with a disregard of all rights and interests, except those of the proprietors.' Froude, Hist. Eng. v. 107. ' It is the com- mon custom with covetous landlords to let their housing so decay, that the farmers shall be fain for small regard or coin to give up their leases, that they, taking the ground into their own hands, may turn all into pasture. So now old fathers, poor widows, and young children lie begging in the streets.' Sermon of Lever in Strype's Memorials. 2 3 & 4 Edw. VI. c. 5. 3 In the directions to the Commissioners for a forced loan in 1557 they are informed that should any persons be ' froward ' they were to be compelled to find sureties to appear before the Privy Council when called on, or else to 366 The Tudor Period. [Ch. the assent of Parliament ; and illegal modes of punish- ment, the torture especially, are ' more frequently men- tioned in her short reign than in all former ages of our history put together.' x I n l 5S7> a commission was issued to Bishop Bonner and others authorizing them to inquire rigorously con- cerning ' devilish and clamorous persons ' who spread seditious reports or brought in heretical and seditious books, or neglected or contemned the ceremonies of the Church, and in some instances to fine, imprison, or * otherwise punish ' the guilty ; in others of a graver nature to remit them to the spiritual courts. It was feared at the time that this proceeding was a preliminary to the establishment of the Inquisition ; it proved, in fact, to be the precursor of the High Commission Court of the next reign. 3 The violence of Mary's reign is in curious contrast with the humane and enlightened sentiments enunciated in the preamble of the first Act upon her Statute-book. Like her immediate predecessor, Mary began her reign by a statute repealing all new treasons and felonies, although, as in his case, new treasons were very soon again introduced. In the preamble of the abolishing statute it is recited ' that the state of a king standeth more assured by the love and favour of the subject towards the sovereign, than in the dread and fear of the laws made with rigorous pains and extreme punishment ;' and that ' laws made without extreme punishment are more often obeyed than laws made with extreme punishment.' 3 Doubts as to Mary was the first queen regnant of England (for it is be arrested on the spot and sent to London. j£i 10,000 was collected under this commission in spite of outcry and resistance. Commission for the Loan, MS., Mary, Domestic, vol. xi. xii., cited in Froude, Hist. Eng. vi. 486. 1 Hallam, Const. Hist., i. 42. 2 Burnet, ii. 256 ; iii. 243. " 3 1 Mary, c. i, an Act to ' Repeal and take away Treasons, Felonies, and cases of Praemunire. ' x.] Hen. VII., Hen. VIII, Edw. VI, Mary. 367 unnecessary to take into account the nine days' usurpa- the powers of a tion of the unfortunate Lady Jane Grey); 1 and some doubts were at one time started as to her constitutional powers. Some of the reformed preachers even went so far as to contend that the government of a woman was both prohibited by the word of God, and unrecognised by the laws of the land, which conferred no authority upon queens. On the other hand a silly book was written to exalt Mary's prerogative, on the pretence that as queen, she was not bound by the laws of former kings. Mary showed her contempt for this sophism by herself throwing the book into the fire. But to set all Settled by Act questions at rest an Act was passed to declare that ' the of Parliament - royal power and dignities vested in a queen the same as in a king,' and that all statutes in which a king was named applied equally to a queen. 2 Under Henry VIII. there is only one instance, in Reviving inde- 1532, when the Commons refused to pass a bill recom- commons" tie mended by the crown. But under Edward VI. and Mary, they on several occasions rejected bills sent down from the Upper House, and we have seen how they insisted upon the insertion in the Act of Edward VI. creating new treasons, of the provision requiring proof of the offence by the testimony of two witnesses in open court. These indications of reviving independence on the Met by the part of some of the Commons were met by the creation C1 ^ atl0n of ^ J rotten boroughs of rotten boroughs and by the direct interference of the and by crown in elections. Edward VI. created -or restored ekfctions? g twenty-two boroughs, of which at least half, including seven in Cornwall, were places of no kind of importance. Mary added fourteen to the number, and Elizabeth, in a similar manner, increased the representation in Parlia- 1 After the capture of King Stephen at the battle of Lincoln, in February, 1 141, the Empress Matilda was elected ' Domina Angliae' on the 8th of April following ; but although she held courts arid issued charters in royal form, she never succeeded in making good her claim to the crown 2 i Mary, sess. 3, c. 1. 368 The Tudor Period. [Ch. x. ment by no less than sixty-two members. The inter- ference of the crown in elections was exerted in the most open manner. In 15 S3, Edward VI. directed a circular letter to all the sheriffs, commanding them to apprize' the freeholders, citizens and burgesses of their respective counties 'that our pleasure and command- ment is, that they shall choose and appoint, as nigh as they possibly may, men of knowledge and experience within their counties, cities or boroughs ;' and especially that whenever the Privy Council, or any of them, having instructions in the king's behalf, should 'recommend men of learning and wisdom, in such case their direc- tions be regarded and followed.' Accordingly several persons — all of them belonging to the court, or in places of trust about the king — were recommended by letters to the sheriffs, and elected as knights for different shires. 1 The writs for the Parliament summoned by Mary in 1554, to sanction the return of the country to obedience to the Apostolic See, were accompanied in like manner by royal circulars requiring the mayors, sheriffs, and other influential persons to admonish the electors to choose as their representatives ' such as, being eligible by order of the laws, were of a wise, grave, and Catholic sort ;' 2 and the earl of Sussex, one of the queen's coun- cillors, wrote to the electors of Norfolk and to the bur- gesses of Yarmouth requesting them to reserve their votes for the persons whom he should name. 3 1 Hallam, Const. Hist., i. 46, citing Strype, ii. 394. The drafts of the circular letters are preserved in Lansdowne MSS. 3, cited in Froude, v. 464, n. In some instances the orders of the crown were sent direct to the candidate himself. The Council, in a letter to Sir P. Hoby, inform him ' that his Majesty hath willed us to signify unto you this his pleasure to have you one of the Commons House, which thing we also require you to foresee, that either for the county where ye abide ye be chosen knight, or else other- wise to have some place in the house, like as all others of your degree be appointed. And herein, if either his Majesty or we knew where to recom- mend you, according to your own desires, we would not fail but provide the same.' Hatl. MSS., 523, in Froude, v. 465. 2 Froude, vi. 260. These general directions were copied from a form which had been in use under Henry VII. 3 Burnet, ii. 228. CHAPTER XI. THE REFORMATION IN ENGLAND. The separation of the Church of England from The Refor- that of Rome, formally accomplished under Henry VIII., nation under was a political and legal rather than a religious reforma- political and tion. The doctrinal changes which followed under le g al . ratherthan Edward VI. and Elizabeth, were an unintentional con- Doctrinal sequence, to which Henry and his Parliament more than chan g es unde r once declared themselves utterly repugnant. But in and Elizabeth, reality the Reformation, in both its political and reli- an unintentionaI J r consequence. gious aspects, was the effect of causes which had been Both were the in operation for centuries, not only in England, but effect of causes throughout Europe. 'No revolution,' says Hallam, operation. ' has ever been more gradually prepared than that which separated almost one half of Europe from the commu- nion of the Roman see ; nor were Luther and Zwingle any more than occasional instruments of that change, which, had they never existed, would at no great dis- tance of time have been effected under the names of some other reformers. At the beginning of the sixteenth century, the learned doubtfully and with caution, the ignorant with zeal and eagerness, were tending to depart from the faith and rites which authority prescribed.' 1 In England, the Church, from its first institution, had Early and con- always possessed a marked national character. The ^SSS^rfS^ spiritual primacy of the Pope and his authority in mat- English Church. 1 Const. Hist. i. 57. B B 370 The Reformation in England. [Ch. ters of faith were fully and reverentially admitted : but the exorbitant claims of jurisdiction and territorial power asserted by Hildebrand and his successors, toge- ther with the pecuniary exactions founded on those claims, were persistently, though with varying degrees of firmness, resisted by the English kings and people. Growth of Papal Prior to the Norman Conquest, Church and State in ConquestdU 6 England were so intimately united that they were prac- tice reign of tically identical. William of Normandy, to further his designs on England, entered into an alliance with the Papacy, and when the Conquest — which it had been his object to present to the eyes of Europe somewhat in the light of a crusade — had been effected, the ecclesiastical power was to a great extent separated from the civil power and placed in much closer communion with and subordination to the Papal See. But anxious as he was to propitiate the See of Rome, William was careful not to surrender the ancient supremacy of the state over the national church. 1 Still, the impetus given by the Con- quest to the Papal power in England caused it to go on rising, until — notwithstanding the partial checks which it received under Henry I. and Henry II., on the questions of investitures and clerical immunity from civil jurisdiction— it reached its acme under John and Henry III. For one hundred and fifty years succeeding the Con- quest the right of nominating the archbishops, bishops, and mitred abbots had been claimed and exercised by the king. This right had been specially confirmed by the Constitutions of Clarendon, which also provided that the revenues of vacant sees should belong to the crown. But John admitted all the Papal claims, surrendering even his kingdom to the Pope, and receiving it back as a fief of the Holy See. By the Great Charter the church recovered its liberties ; the right of free election being specially conceded to the cathedral chapters and the — - ' „ 1 Suj>ra, p. 69. xi.] The Reformation in England. 371 religious houses. Every election was, however, subject to the approval of the Pope, who also claimed a right of veto on institutions to the smaller church benefices, — the small monasteries and parish churches which were in the hands of private patrons, lay or ecclesiastical. 'There was thus,' observes Mr. Froude, 'in the Pope's • hands an authority of an indefinite kind, which it was presumed that his sacred office would forbid him to abuse ; but which, however, if he so unfortunately pleased, he might abuse at his discretion. He had absolute power over every nomination to an English benefice ; he might refuse his consent till such adequate reasons, material or spiritual, as he considered sufficient to induce him to acquiesce, had been submitted to his considera- tion. In the case of nominations to the religious houses the superiors of the various orders residing abroad had equal facilities for obstructiveness.' 1 Under Henry III. the power thus vested in the Pope and foreign superiors of the monastic orders was greatly abused, and soon degenerated into a mere channel for draining money into the Roman exchequer. Edward I. firmly withstood the exactions of the Pope, Edward I. and re-asserted the independence of both church and p^aidaims crown. To the letter of Boniface VIII. claiming to be and exactions. feudal lord of Scotland and commanding Edward I. to Answer of the withdraw his troops from that kingdom and submit his jj^} 1 ^ J h a e rlia " pretensions to the decision of the Papal See, the Parlia- letter of Boni- ment of England returned a very emphatic repudiation of the Pope's temporal jurisdiction. 'The kings of England,' they said, ' have never pleaded, or been bound to plead, respecting their rights in the kingdom of Scotland, or any other their temporal rights, before any judge, eccle- siastical or secular. It is, therefore, and by the grace of God shall always be, our common and unanimous resolve that with respect to the rights of his kingdom of Scot- 1 Froude, Hist. Eng., ii. 3. 8 n 2 372 The Reformation in England. [Ch. land, or other his temporal rights, our aforesaid lord the king shall not plead before you, nor submit in any man- ner to your judgment, nor suffer his right to be brought in question by any inquiry, nor send agents or procu- rators for that purpose to your court. . . . Neither do we, nor will we, permit, as we neither can nor ought, our aforesaid lord the king to do, or attempt to do, even if he wished it, any of the things aforesaid.' 1 Series of In the reign of the great Edward began a series of Statutes passed , 111 ./•>*, to check the statutes passed to check the aggressions of the Pope, aggressions of anc j res tore the independence of the national church and kingdom. The first of the series was passed in 1306-7. De Aspartate It recites that ' the abbots, priors, and governors of reli- %5$&ww&I gi° us houses, and certain aliens their superiors, as the a.d. 1306-7. abbots and priors of the Cistertians, the Premonstrants, superior? 1 tne orders of Saint Augustine and of Saint Benedict, resident abroad anc j m any more of other religions and orders, have at from levying taxes on English their own pleasure set divers heavy, unwonted, and un- rehgious houses. p 0r t a ble talliages, payments and impositions upon every of the said monasteries and houses subject unto them in England, Ireland, Scotland and Wales, without the pri- vity of the king and his nobility, contrary to the laws and customs of the said realm ;' and that in consequence of such impositions, ' the service of God is diminished ; alms are not given to the poor, the sick, and the feeble ; the health of the living and the souls of the dead be miserably defrauded ; hospitality, almsgiving and other godly deeds do cease ; and so that which in times past was charitably given to godly uses and to the service of God, is now converted to an evil end, by permission whereof there groweth great scandal to the people.' It was therefore enacted, — ' the king considering it would be very prejudicial to him and his people, if he should any longer suffer so great losses and injuries to be winked at,' — that for the future no abbot or other reli- 1 Rymer, ii. 873-875, cited in Lingard, Hist. Eng., iii. 233. xi.] The Reformation in England. 373 gious person should, directly or indirectly, secretly or openly, carry or send any tax, rent or talliage, imposed by the superiors, or assessed amongst themselves, out of the, kingdom ; and that ' priors aliens ' should not presume to assess any such payment whatever upon religious houses subject to them. 1 This statute was confirmed under Edward III. in the Statute of Pro- i ■ • i /- i • • i.i visors, 25 Jidw. 4th, and again in the 5th year of his reign ; and in the m., a .d. 1350. 25 th of his reign, roused ' by the grievous complaints of all the commons of his realm,' the king and Parliament passed the famous statute of Provisors, aimed directly at the Pope, and emphatically forbidding his nomina- tions to English benefices. The preamble recites that ' the holy Church of England was founded in the estate of prelacy within the realm of England, by the king's progenitors and the ancestors of the earls, barons, and other nobles of his realm, to inform them and the people of the law of God, and to make hospitalities, alms, and other works of charity, in the places where the churches were founded, for the souls of the founders, their heirs, and all Christians ; and certain possessions as well in fees, lands, rents, as in advowsons, which do extend to a great value, were assigned by the said founders to the prelates and other people of the Holy Church of the said realm to sustain the same charge . .' . . and the kings, earls, barons, and other nobles, as lords and ad- vowees, have had, and ought to have, the custody of such voidances, and the presentments of the collations of the benefices being of such prelacies : And the said kings in times past were wont to have the greatest part of their council, for the safeguard of the realm when they had need, of such prelates and clerks so advanced ; but the Pope of Rome accroaching to him the seignories of such possessions and benefices, doth give and grant the same benefices to aliens, which did never dwell in Eng- 1 35 Edw. I., st. i. c. 1-4. 374 The Reformation in England. [ch. land, and to cardinals which- might not dwell here, and to others as well aliens as denizens, as if he had been patron or advowee of the said dignities and benefices, as he was not of right by the law of England. . . . And now of late, our holy father the Pope . . . taketh of all such benefices the first fruits and many other profits, and a great part of the treasure of the said realm is car- ried away and dispended out of the realm by the pur- chasers of such benefices and graces aforesaid ; and also by such privy reservations, many clerks advanced in this realm by their true patrons, which have peaceably holden their advancements by long time, be suddenly put out.' It was therefore declared that the elections of bishops and other dignitaries should be free as in time past ; that the rights of all patrons should be preserved ; and penalties of imprisonment, forfeiture, or outlawry, ac- cording to the degree of the offence were enacted' against all 'provisors,' who should obtain benefices from Rome by purchase or otherwise. x Statute forbid- Three years afterwards it was found necessary to pass ding citation to a statute, forbidding citations to the court of Rome. It RomeT^Edw. was based upon 'the grievous and clamorous complaints in. st. i. f t ]j e rr rea t men an d commons, how that divers of the people be and have been drawn out of the realm to answer of things whereof the cognizance pertaineth to the king's court ; and also that the judgments given in the same court be impeached in the court of another in prejudice and disherison of our lord the king and of his crown, and of all the people of his said realm, and to the undoing and destruction of the common law of the same realm at all times used.' The cumulative penal- ties of outlawry, forfeiture of lands and goods, and im- prisonment at the king's pleasure, were therefore enacted against all people of the king's legiance who should ' draw any out of the realm in plea, whereof the 1 25 Edw. III. st. 4. XI -] The Reformation in England. 375 cognizance pertaineth to the king's court, or of things whereof judgments be given in the king's court, or who do sue in the court of another, to defeat or impeach the judgments given in the king's court,' and who should fail to appear, within two months after summons, before the king and his council, or in his Chancery, or before the king's justices, to answer in their proper persons for the contempt so committed. 1 Statutes, however, were of little avail. The law still P c es f statutes defied or continued to be defied, or evaded, although several fresh evaded. Acts of Parliament to the same effect as the former were promulgated from time to time. 2 In 1389, there was an expectation that the Pope Former pro- was about to attempt to enforce his claims, by excom- enacted with municating those who rejected them. The Parliament special pro-^ > i-ii 1 1 • 1 1 • 1 visions against at once passed a highly penal statute, which, besides excommuni- re-enacting in the most emphatic terms the former pro- ^ tIons from R . hibitions of papal aggressions, declared that ' if any man II. st. 2, c. 3. bring or send within the realm or the king's power any A ' D ' ' 3 9 ' summons, sentences, or excommunications against any person of what condition that he be,' because of his as- sent to or execution of the statute of Provisors, he should incur pain of life and members, with forfeiture of lands and goods ; and if any prelate should execute such sentences or excommunications, his temporalities should be taken from him, and abide in the king's hands till re- dress and correction be made. 3 Matters were shortly afterwards brought to a crisis by Bonifa ce IX. Boniface IX., who, after declaring the statutes enacted to a crisis. by the English Parliament null and void, granted to an A - D - '39 1 - Italian cardinal a prebendal stall at Wells, to which the 1 Revised Statutes, 27 Edw. III. stat. i., a.d. 1353. From this statute originated the offence afterwards known as Praemunire, from the words of the writ praemunire facias requiring the sheriff to warn the accused to appear and answer the contempt on a day fixed. * 38 Edw. III., st. 2; 3 Ric. II., c. 3 ; 7 Ric. II., c. 12 ; 12 Ric. II., c. IS- 3 13 Ric. II., st. 2. 376 The Reformation in England. [C«- Petition of the Commons. They declare they will stand by the king to live and die. The lords spiritual and temporal are interrogated and answer to the same effect. Statute of Praemunire. 16 Ric. II. c. 5. A.D. 1392. king had already presented. Cross suits were at once instituted by the two claimants in the Papal and English . courts. A decision was given by the latter, in favour of the king's nominee, and the bishops having agreed to sup- port the Crown, were forthwith excommunicated by the Pope. The Commons were now roused to the highest pitch of indignation. They drew up, in the form of a petition to the king, a declaration of the circumstances which had occurred, and affirmed that ' the said things so at- tempted, be clearly against the king's crown and his regality, used and approved of the time of all his pro- genitors, wherefore they and all the liege commons of the said realm will stand with our said lord the king, and his crown, and his regality, in the cases aforesaid, and in all other cases attempted, in all points to live and to die.' After this emphatic assertion of their own opi- nion, they prayed the king, 'and required him by way of justice,' to examine severally all the lords spiritual and tem- poral in the Parliament how they thought and how they would stand. The lay lords answered directly, and the spiritual lordS indirectly, to the same effect as the Com- mons. 1 Whereupon the petition and the separate decla- rations of the three estates of Parliament were incor- porated in the great Statute of Praemunire. It was enacted, that ' if any man purchase or pursue in the court of Rome or elsewhere any translations, processes, and sentences of excommunications, bulls, instruments, or any other things whatsoever, which touch the king, against him, his crown and regality, or his realm, as aforesaid, or bring them within the realm, or receive, notify, or execute them, either within the realm or without, such person or persons, their notaries, procura- tors, maintainers, abettors, fautors, and counsellors, should incur the penalties of praemunire in manner as 1 Rot., Pari., iii. 304. xi.] The Reformation in England. 377 it is ordained in other statutes of provisors against those which do sue in the court of another in derogation of the regality of our lord the king.' 1 The firm and resolute attitude assumed by the Boniface yields, country caused Boniface to yield; "and for the moment,' observes Mr. Froude, ' and indeed for ever under this especial form, the wave of papal encroachment was rolled back. The temper which had been roused in the contest might perhaps have carried the nation further. The liberties of the crown had been asserted successfully. The analogous liberties of the church might have fol- lowed ; and other channels, too, might have been cut off through which the papal exchequer fed itself on English blood. But at this crisis, the anti-Roman policy was Rise of the arrested in its course by another movement, which ° ar s- turned the current of suspicion and frightened back the nation to conservatism. While the Crown and the Par- liament had been engaged with the Pope, the undula- tions of the dispute had penetrated down among the body of the people, and an agitation had been com- menced of an analogous kind against the spiritual authorities at home. . . This form of discontent found its exponent in John Wycliffe, the great forerunner of John Wycliffe, the Reformation, whose austere figure stands out above A,D- ' 3 ° : the crowd of figures in English history, with an outline not unlike that of another forerunner of a greater change. . . . The burden of Wycliffe's teaching was the exposure of the indolent fictions which passed under the name of religion in the established theory of the church. He was a man of most simple life ; austere in appear- ance, with bare feet and russet mantle. By the contagion of example he gathered about him other men who thought as he did ; and gradually under his captaincy, these " poor priests," as they were called . . . spread out and his 'poor over the country as an army of missionaries to preach the priest3, 1 1 6 Ric. II., c. 5- 378 The Reformation in England. [Ch. The Bible translated and disseminated among the people. Revolutionary and socialistic tendencies of Wycliffe's followers. They are implicated in the insurrection of the Villeins in 1381. Conservative reaction in consequence. faith which they found in the Bible — to preach, not of relics and of indulgences, but of repentance and of the grace of God. They carried with them copies of the Bible, which Wycliffe had translated, leaving here and there as they travelled their costly treasures, as shining seed-points of light ; and they refused to recognize the authority of the bishops, or their right to silence them. If this had been all, and perhaps, if Edward III. had been succeeded by a prince less miserably incapable than his grandson Richard, WyclifTe might have made good his ground ; the movement of the Parliament against the Pope might have united in a common stream with the spiritual move against the church at home, and the Reformation have been antedated by a century.' 1 But the ' poor priests ' had other doctrines besides those which they found in the Bible. The tenets of Wycliffe himself were not free from revolutionary tendencies, though probably intended by him, so far as regarded temporal matters, as mere idealistic theories ; his fol- lowers superadded, and propagated among their ignorant proselytes, wild socialistic views which did much harm, not only to their cause but to the reputation of their master. Although there is no evidence that Wycliffe himself had any hand in exciting the insurrection of the Villeins in 1381, the complicity of many of his followers, the Lollards, is undoubted. John Balle, the fanatical leader of the insurgents, is said to have confessed before his execution, that he had been for two years a pupil of Wycliffe, and had imbibed his views on the eucharist. 2 The insurrection was in fact a great blow to Wycliffe and the Lollards. Now that it was seen that they had become political revolutionists as well as religious re- formers, a reaction set in. A bill was passed in the 1 Froude, Hist; Eng., ii. 12-15. 2 Fasciculi Zizaniorum Magistri Johannis Wyclif, edited by the late Canon Shirley, and published under authority of the Master of the Rolls, P. 273- XL] The Reformation in England. 379 House of Lords, ordering that unlicensed preachers should be arrested and imprisoned ' until they will justify themselves according to the laws and reason of .Holy Church.' 1 But Wycliffe petitioned against the bill, and the Commons rejected it. During the remainder of Richard's reign, after the panic of the insurrection had subsided, the Lollards, though no longer favoured by the court and nobility, were very little molested. It was the policy of Henry Henry IV. IV. to gain the support of the prelates by sustaining p^^ the them against their new adversaries, who, moreover, as disturbers of order, were equally obnoxious to the secular power. 2 With this object was passed, in the second year of his reign, the celebrated statute De Heretico Com- Statute burendo. The preamble recites that ' divers false and comburendo. perverse people, of a certain new sect, of the faith of the 2 Hem y IV - sacraments of the Church and th& authority of the same a.d. 1401. damnably thinking, . . . and usurping the office of preaching, — do preach and teach, openly and privily, divers new doctrines, and wicked, heretical, and erro- neous opinions, contrary to the faith and determinations of Holy Church. And of such sect and wicked doctrine and opinions they make unlawful conventicles and con- federacies ; they hold and exercise schools ; they make and write books ; they do wilfully instruct and inform people ; and, as much as they may, incite and stir them to sedition and insurrection ; the diocesans and their 1 5 Ric. II., st. 2, c: 5. In this statute, or rather ordinance, the assent of lords and commons is not expressed. In the next Parliament the com- mons, reciting this ordinance, declare it was never assented to or granted by them, but that what had been proposed in this matter was without their concurrence, and pray that this statute may be annulled ; for it was never their intent to bind themselves, or their descendants, to the bishops more than their ancestors had been bound in time past. The king returned an answer agreeing to their petition. Nevertheless the pretended statute remained unrepealed. Rot. Pari., 6 Ric. II., p. 141; Hallam, Mid. Ages, iii. 89. 2 At the same time that Henry IV. was supporting the national church against domestic adversaries, he was careful to maintain the policy of resistance to the aggressions of the Pope. See statutes 2 Hen. IV. c. 3 ; 2 Hen. IV. c. 4 ; S Hen. IV. c. 1 1 ; and 9 Hen. IV. c. 9. ;8o The Reformation in England. [ch. The Commons petition the Crown for a secularization of Church property. Insurrection of the Lollards under Sir John Oldcastle. A.D. 1412. jurisdictions spiritual, and the keys of the Church with the censures of the same, they do utterly contemn and despise ; and so their wicked proceedings continue from day to day, to the hatred of right and reason, and utter destruction of order and good rule.' To remedy these evils it was enacted, that the bishops, at their mere will and pleasure, should have power to arrest and imprison per- sons defamed or vehemently suspected of such offences, until they should make canonical purgation ; and, if convicted, to punish them with fine and imprisonment. And if any persons so convicted should refuse to abjure such preachings, doctrines, opinions, schools, and mis- informations, or, after abjuration, should be proved to have relapsed, then the sheriff of the county, or the mayor and bailiffs of the nearest borough should, on requisition, be present at the pronunciation of the sen- tence, should receive the persons so condemned into custody, ' and them before the people, in a high place, do to be burnt, that such punishment may strike in fear to the minds of others.' 1 It is very doubtful whether the Commons were as- senting parties to this burning statute. Throughout the whole of Henry IV.'s reign they manifested a very hostile spirit to the clergy; and on two occa- sions, in 1404 and again in 1410, they proposed that the temporalities of the church should be confis- cated to the use of the state : but the king refused to countenance the scheme. 2 The abortive insurrection of the Lollards at the commencement of Henry V.'s reign, under the leadership of Sir John Oldcastle, had the effect of adding to the penal laws already in existence 1 2 Hen. IV., cap. 15, A.D. 1401. The writ De Heretico Comburendo ' and all process and proceedings thereupon, and all punishment by death in pursuance of any ecclesiastical censures ' were finally abolished by statute 29 & 30 Car. II., c. 9. 2 Walsingham, 379. From the superfluous revenues of the church, the commons asserted that the king might maintain 15 earls, 1500 knights, and 6200 esquires ; and also support 100 hospitals for the relief of the poor. xi.] The Reformation in England. 3% l against the sect. In a proclamation the king asserted that the insurgents intended ' to destroy him, his brothers, and several of the spiritual and temporal lords, to con- fiscate the possessions of the church, to secularize the religious orders, to divide the realm into confederate districts, and to appoint Sir John Oldcastle president of the commonwealth.' In 1414 a statute was passed which, after reciting that ' great rumours, congregations and insurrections of people of the sect of heresy com- monly called Lollardry, were of late made to subvert the Christian faith, and the law of God, and Holy Church, to destroy the king and all the estates of the realm, and also all manner of policy, and finally the laws of the realm,' enacted that the lord chancellor, the judges, and all magistrates, should be sworn to use their best power and diligence to detect and arrest persons suspected of Lollardry, and deliver them over to the ecclesiastical courts ; and that the prisoners on conviction should for- feit lands, goods, and chattels as in cases of felony. 1 Although repressed and discredited, Lollardry was by Lollardry re- no means extinguished. Henry VI, in 143 1, writes of Anguished! 5 ' the Lollards ' as God knoweth never would they be sub- ject to His laws nor to man's, but would be loose and free to rob, reve and despoil, slay and destroy all men of thrift and worship, as they proposed to have done in our father's days ; and of lads and lurdains would make lords.' 2 The revolutionary tendencies of the Lollards were indeed effectually crushed out ; but ' the fire of heresy continued to smoulder,' and copies of Wycliffe's Bible were still read in secret with fear and trembling. During the troubled period of the Wars of the Roses we hear little of heretical doctrines, 3 but from the beginning 1 2 Hen. V., c. 7. a.d. 1415. 1 Archreologia, vol. xxiii. p. 339, &c, apud Froude, Hist. Eng. 3 In 1457, Bishop Reginald Peacock, for maintaining opinions similar in many points to those of Wycliffe, was deprived of the see of Chichester and compelled to recant. He had recommended the study of the Bible by the laity, and the marriage of priests, and objected to ascetic practices. 382 The Reformation in England. [Ch. It revives at beginning of 16th century. The ' Associa- tion of Christian Brothers. ' Even the orthodox are disgusted with the exactions of the Papacy and the abuses of the Ecclesi- astical system. Benefit of Clergy. Dr. Standish and Convoca- tion. of the 1 6th century the records of the bishops' courts are filled with accounts of prosecutions for heresy. In the first years of Henry VIII. several persons were burnt for this crime, while others only escaped by ab- juring their errors. About the same time the mantle of Wycliffe's ' poor priests ' was taken up by a society in London calling itself ' The Association of Christian Bro- thers.' ' It was composed,' says Mr. Froude, ' of poor men, chiefly tradesmen, artisans, a few, a very few of the clergy ; but it was carefully organized, it was pro- vided with moderate funds, which were regularly audited ; and its paid agents went up and down the country carry- ing Testaments and tracts with them, and enrolling in the order all persons who dared to risk their lives in such a cause.' x Even those persons who felt no sym- pathy with the doctrines of Lollardry, had been long disgusted with the vices and exactions of the Papal See, with the inordinate wealth, privileges, and encroaching temper of the clergy, and the abuses of the ecclesiastical courts. One of the most mischievous of clerical privileges was the immunity of all tonsured persons from civil punishment for crimes. This had been partially re- strained under Henry VI., by requiring that clerks arrested on any criminal charge, instead of being instantly claimed by the bishop, should plead their pri- vilege at the time of arraignment, or after conviction. Under Henry VII. all clerks convicted of felony were ordered to be burned in the hand: and in 1513, the ' benefit of clergy ' was entirely taken away from mur- derers and felons. 2 The immunity was, however, still enjoyed by priests, deacons, and subdeacons. In 1515, Dr. Standish, having denied the right of clerks to be exempt from the jurisdiction of the king's courts, was 1 Froude, Hist. Eng., ii. p. 26. 2 4 Hen. VIII., sess. 2, c. 2. xi.] The Reformation in England. 3^3 attacked by Convocation ; whereupon Parliament peti- tioned the king to support him against his enemies. The king, after hearing both sides, decided in favour of Standish. About the same time popular indignation was greatly excited against the clergy by the case of Richard Hunne, a citizen of London, who having sued a Case of clerk, in a civil court, for illegal extortion, was, by way c ar of retaliation, prosecuted in the bishop's court for heresy, and having been committed to the bishop's prison, was found hanged in his chamber. The bishop's chancellor and sumner were indicted for the murder on such vehe- ment presumption, that, a conviction being almost certain, the bishops appealed to the king to defer the trial, declar- ing that the London juries were so prejudiced against the church that they would find Abel guilty of the murder of Cain ; and that the clergy ought to have time to inquire of the court of Rome whether submission to'the civil courts was consistent with the laws of God and the liberties of Holy Church. In reply Henry declared that 'By the per- mission and ordinance of God, we are King of England ; and the kings of England in times past never had any superior but God only. Therefore know you well, that we will maintain the right of our crown, and of our temporal jurisdiction, as well in this as in all other points, in as ample a manner as any of our predecessors have done before our time.' 1 Such was the state of popular feeling in England when Luther at Martin Luther nailed his theses to the church door of yi, tte ™ b " rg - Wittemburg, and set in motion that religious revolution which has ' coloured the destinies of all Christian nations, and in an especial manner the destinies of England.' 3 Inclined as a man of Henry's intelligence and force of Henry pre- character must have been to reform the abuses of the dl *P 0S . ed '° ™ rb ecclesiastical system, and curb the excesses of clerical abuses, but 1 Burnet, Hist. Reformation, i. part I. 2 Macaulay, Hist. Eng., i. 35. 3»4 The Reformation in England. [Ch. opposed to doctrinal changes. His book against Luther gains him the title of Defender of the- Faith, A.D. 1521. Influence of the writings of Luther and other foreign Reformers on English Lollardism. Some reform of the ecclesiastical system was inevitable. Precipitated by the Pope's action in the king's divorce suit, against Queen Catherine. Progress of events. power, he was altogether opposed to doctrinal innova- tions. In defence of orthodoxy he even condescended to a polemic contest with Luther, and for the treatise,- 'Assertio Septeni Sacramentorum adversus Martinum Lutherum,' received from Pope Leo X. the title of 'Defender of the Faith.' But among the people the writings of the ' arch-heretic,' and of other foreign refor- mers, were sedulously circulated by the ' Christian Bro- thers,' until at length, under Edward VI. and Elizabeth, English Lollardism, stimulated and developed by the in- fluence of Germanic Protestantism, brought about the doc- trinal, as Henry VIII. had brought about the political and legal, reformation of the national church. Some reform of the ecclesiastical system, and even of the doctrines of the church, must certainly have been carried out at no great distance of time, even had no quarrel arisen between Henry VIII. and the Papacy. The crisis was precipitated by the famous divorce suit against Queen Catherine. It is unnecessary here to discuss the merits of the case, or to dwell upon the vacillation and duplicity of Pope Clement VII., ' the assurances he gave the king, and the arts with which he receded from them, the unfinished trial in England before his delegates, Campeggio and Wolsey, the opinions obtained from foreign universities in the king's favour, not always with- out a little bribery, and those of the same import at home, not given without a little intimidation, or the tedious continuance of the process after its adjournment to Rome.' 1 More than five years elapsed between Henry's first application to the Pope, in 15 27, for a bull annulling his marriage with Catherine as being originally contrary to the laws of God, and the celebration of his marriage with Anne Boleyn in November or January, 1532-3. On the 1 2th of April, 1533, the marriage was publicly owned ; 1 Hallam, Const. Hist., i. 61. xi.] The Reformation in England. 385 on the 23rd of May, Archbishop Cranmer pronounced sentence of divorce from Catherine ; and on the 7th Sep- tember following Anne became the mother of Elizabeth. On the 23rd of March, 1534, the Pope, urged by the car- dinals to extreme measures, pronounced a definitive sentence in favour of Catherine, and required the king, under pain of excommunication, to take her back as his wife. Henceforth the breach between the king and the Pope was irreparable ; but long before the final rupture Henry had entered upon the course of ecclesiastical reform, which was retarded or accelerated as the progress of the great suit seemed to call for a conciliatory or threatening attitude on the part of the king. It is remarkable that the seven years' legislation which The abolished the Papal supremacy in England, reformed Parliament.' the constitution and administrative system of the Angli- can church, and established the royal supremacy, was the work of one and the same Parliament. The ' Refor- mation Parliament ' met in London on the 3rd November, 1529, after an illegal intermission of the national council for seven years, and, with the exception of a single ses- sion, for fourteen years. It was continued by proroga- tions — unusual in those days — from year to year, until it was finally dissolved on the 14th April, 1536, having completed the task for which it had been specially summoned. We shall consider the ecclesiastical reforms of the Reformation Parliament in the chronological order of its seven sessions. Soon after the meeting of Parliament a petition was Session 1. presented to the king, in the name of the Commons of p e ^ t j°' J f 2 ? n England, containing what was in fact a formal ' act of Commons for a accusation,' with a detailed summary of grievances scrutiny into against the clergy generally and the bishops in par- ecclesiastical ticular. This address disclosed the design of a sys- tematic scrutiny into all the abuses which had been imputed to the Anglican Church. ' The king's conduct 386 The Reformation in England. [Ch. It is referred to the bishops for an answer. Henry's criti- cism on the bishops' answer. and observations with regard to it,' remarks Mr. Andrew Amos, ' shewed that he favoured and had perhaps ori- ginated, the bold and novel inquiry. They also exhibit the point of view in which the subject was particularly interesting to him ; namely, the divided allegiance of his prelates. He probably thought that their oaths to the Pope on their consecrations and their ordinations, al- though sanctioned by English kings for centuries, would lead them to take part against him in the impending struggle.' 1 The address of the Commons was referred by the king to the bishops with a' request that they would imme- diately answer its charges. After some delay the bishops replied in a lengthy document, which was handed by the king to the Commons with the remark, ' We think their answer will smally please you, for it seemeth to us very slender.' A few days later 'the king sent for the Speaker again, and twelve of the Common House, having with him eight lords, and said to them, Well-beloved subjects ! we thought that the clergy of our realm had been our subjects wholly, but now, we have well perceived that they be but half our subjects ; yea, and scarce our sub- jects, for all the prelates, at their consecration, take an oath to the Pope clean contrary to the oath they make to us, so that they seem to be his subjects and not ours. Copies of both the oaths I deliver here to you, requiring you to invent some order that we be not thus deluded of our spiritual subjects. The Speaker then departed and 1 Andrew Amos, Statutes of the Reformation Parliament, 232. Mr. Amos remarks, of the Statutes of Henry's reign, that ' their parentage is less that of deliberative assembles than of an individual author, whose dictates and expressions have a marked peculiarity of sentiment and tone.' The Preambles are 'prolix, diffuse, and redundant beyond all former example, as if, apparently, to guard the enacting clauses from misrepresentation of motives rather than misinterpretation of texts. They generally consist of reasonings and facts upon which it was professed that the statutes were grounded; they _ exhibit, with greater probability of truth, the lights in which it was desired that the nation should view them, without conjectures to the right hand or the left,' pp. 3, 9. xi.] The Reformation in England. 3^7 caused the two oaths to be read in the Common House.' i Three statutes were passed in the first session in Statutes in A restraint . restraint of the personal privileges and emoluments of the clergy. - (i.) The fees, hitherto assessed at discretion, upon the of Probate fees ; granting of probates and administrations by the eccle- siastical courts were reduced to fixed and moderate proportions. This was a mode of ecclesiastical extortion which had been long and bitterly resented. A statute of the 31st year of Edward III. (st. 1, c. 4) had been passed to repress the 'outrageous and grievous fines and sums of money taken by the ministers of bishops and other ordinaries 3 of Holy Church, for the probate of testaments ; ' and another statute of the 3 Hen. V. c. 8, had been made temporary only by reason that 'the ordinaries did then promise to reform and amend the oppressions and exactions complained of ; ' but as the abuse still con- tinued, ' nothing reformed nor amended but greatly augmented and increased against right and justice,' it was now effectually restrained by this statute of Henry's reign. 3 (2.) The mortuary fees, or ' corse presents,' of the of Mortuaries ; parochial clergy were regulated. After reciting that these fees had been ' over excessive to the poor people and other persons of this realm, and also had been de- manded and levied for such as at the time of their death have had no property in any goods or chattels, and many times for wayfaring travelling men in the places where they have fortuned to die ; ' the statute fixed the fees on a graduated scale, from three shillings and four- 1 Hall, cited by A. Amos, p. 233. 2 The term ordinary is generally synonymous with bishop ; but it includes eicery ecclesiastical judge who has the regular ordinary jurisdiction indepen- dent of another. Co. Litt. 344. 3 21 Hen. VIII. c. 5. c c 2 3 88 The Reformation in England. [Ch. of Pluralities, non-residence and clerical trading. S/ssion II. I53Q-I- Proctors and Pardoners punished as vagabonds. pence up to ten shillings, according to the value of the deceased person's property, but with an entire exemp- tion in the case of married women, children, persons not keeping house, and wayfaring men. 1 (3.) Pluralities, non-residence, farming and trading by the clergy were forbidden. It was enacted that no clergyman should thenceforth take any land to farm beyond what was absolutely necessary for the support of his own household ; or should buy merchandise to sell again ; or keep tanneries or brewhouses, 3 or other- wise directly or indirectly trade for gain. Pluralities were not to be permitted with respect to benefices above the yearly value of £8 ; and residence was made obligatory. Papal and episcopal dispensations with pluralities and non-residence were declared illegal, and persons procuring them rendered liable to heavy penal- ties : but power was reserved to the king to sell such dispensations to a numerous list of chaplains (of the king, the nobility, the judges, and other officials), to the brothers and sons of temporal peers and of knights, and to persons holding the degree of Doctor or Bachelor of Divinity or Law. The crown thus acquired a powerful means — hitherto enjoyed by the Pope — of influencing the lower House of Convocation. In this Session no statute directly aimed at either Pope or clergy was passed. But in an Act for the punishment (by whipping, pillory, and loss of ears) of beggars and vagabonds, were significantly included ' all Proctors and Pardoners going about the country without sufficient authority.' 3 Proctors were officers of the ecclesiastical courts analogous to attorneys of the civil courts ; Pardoners were the itinerant vendors of pardons and relics from the court of Rome, 1 21 Hen. VIII. c. 6. 1 The Commons, in a petition to the king concerning clerical abuses, had made a particular complaint of reverend tanners and brewers. A. Amos, Statutes of Hen. VIII. p. 237. 3 22 Hen. VIII. c. 12. xi.] The Reformation in England. 3^9 This was followed by the Act for the pardon of the £ r h a ^3 e in a clergy in the matter of the praemunire to which they were very harshly and unfairly held to have rendered them- selves liable, in consequence of admitting the legatine authority of Cardinal Wolsey. The cardinal had been indicted in Oct. 1529, upon the Statute of Praemunire of the 1 6th Richard II., for having obtained bulls from Rome, which he caused to be publicly read, and by which he exercised jurisdiction and authority legatine, to the deprivation of the King's power established in his courts of justice. Wolsey had been careful to obtain the king's licence under the great seal authorizing him to exercise the legatine authority, and although the king may be considered to have exceeded his legal right in granting such a licence, still, as the dispensing power had been continuously claimed and frequently exercised by the Crown, both with respect to the Statutes of Prae- munire and others, there was clearly an equitable and moral if not a legal defence to the charge. 1 Wolsey, however, thinking it prudent not to plead his royal licence, was found guilty on his own confession ; and after being plundered, received the king's pardon. It was now contended, on the ground of his conviction, that all the clergy of the realm had been guilty of praemunire, because by admitting his jurisdiction they had become, in the language of the statute, his 'fautors and abet- tors;' and the attorney-general was instructed to file an information against the whole clerical body in the Court of King's Bench. The Convocation of Canterbury Pardoned on hastily assembled, and offered the king £100,000 in re- S-gTsutnand turn for a full pardon. This offer the king refused to ^nitting the 1 -i 1 < r . . King s supre- accept, unless in the preamble of their petition he was macy. acknowledged to be ' the protector and only supreme 1 It had been decided in Henry VII. 's reign, that although the king could not dispense with penalties for an act against the common law, he could do so with respect to an act prohibited by statute only. See supra, p. 290. 390 The Reformation in England. [Ch. head of the church and clergy of England.' After much discussion, the king finally consented to accept the ac- knowledgment of his supremacy, with the qualifying words, ' so far as the law of Christ will allow.' The Convocation of York adopted the same language, and voted for a like pardon the sum of £18,840.' It is remarkable in a reign when the power of the Crown was at its highest, and when Parliament even de- legated to the king its legislative functions, that the king should have admitted his Parliament to participate in the undoubted royal prerogative of pardoning offences. The unusual character of a pardon granted to a whole estate of the realm may have been a reason for a special parliamentary sanction, and, moreover, until the clergy had been found guilty by a court of law, a pardon from the king alone would have been in fact an exercise of the dispensing power which had already proved so poor The kity also in a protection to Wolsey. But a difficulty arose in the passage of the Bill of Pardon through the lower House. The comprehensive words of the Statute of Praemunire, applied not only to the clergy but to the Privy Council, the Lords and Commons, and indirectly to the whole nation, as having recognized Wolsey in his capacity as legate. The Commons, therefore, fearing that the king might make the alleged praemunire an excuse for fleecing the laity as well as the clergy, boldly refused to pass the bill for the pardon of the latter, ' unless all men might be included, arguing that every man who had anything to do with the cardinal was in the same case.' The Speaker and a number of members subsequently waited upon the king, and in more submissive language declared ' that his faithful Commons sore lamented and bewailed their chance, in having occasion to think or imagine themselves out of his favour, because he had granted his most gracious pardon to his spiritual subjects a Praemunire. The Commons insist on a pardon to the laity, 1 22 Hen. VIII. c. 15 ; 23 Hen. VIII. c. 19. xi.] The Reformation in England. 39 1 for the Praemunire and not to them ; wherefore they most humbly besought his majesty, out of his wonted goodness and clemency, to include them in the same pardon.' The king replied, ' that he was their prince and sovereign lord, and that they ought not to restrain him of his liberty, nor to compel him to shew his mercy. Wherefore, since they had denied to consent to the pardon of his spiritual subjects, which, he said, he might give, without their consent, under his great seal, he would be well advised before he pardoned them, because he would . not have it look as if he was compelled to do so.' l However, a pardon to the laity was signed by the king, and embodied in an Act of Parliament, by which wnicn is grante a his majesty 'of his mere motion, and of his benignity, by Act of 1'ar- i j 7 liament. special grace, pity and liberality, hath granted, and by the authority of the present Parliament granteth to all and singular his temporal and lay subjects and temporal bodies politic and corporate, and to every one of them, his pardon for offences against the Statutes of Provisors and Praemunire.' This pardon of a whole nation is not only one of the most extraordinary events of this extra- ordinary reign, but is probably unparalleled in history. It was all the more preposterous from the circumstance that, in effect, the Lords and Commons pardoned them- selves. 2 These proceedings took place in the early part of the year 1531, while the king's representatives at Rome were still pressing, though with diminished hopes, for a favourable termination of the king's suit. In the next session of Parliament, while the clergy were still under the terror of their recent narrow escape from the penal- ties of a praemunire, the attack upon the papal and 1 Hall, cited by A. Amos, Reformation Parliament, p. 61. 2 Amos, p. 62. The pardon to the clergy of the Province of Canterbury was by Stat. 22 Hen. VIII. t. 15, the pardon of the laity by 22 Hen. VIII. c. 16 ; the pardon of the clergy of York Province by 23 Hen. VIII. c. 19, passed in the foDowing session. 392 The Reformation in England. [Ch. Session III. A.D. IS3I-2. Act to restrain the citation of persons out of the diocese in which they reside. Annates or first- fruits taken from the Pope. ecclesiastical privileges was vigorously but cautiously- renewed. (1.) An Act was passed to restrain the citation of per- sons out of the dioceses in which they were resident. The preamble recites, that ' great number of the king's sub- jects as well men, wives, servants, as others, dwelling in divers dioceses of England and Wales, have been at many times called by citation and other processes com- pulsory to appear in the Arches audience and other high courts of the archbishops of this realm, far from their dwellings, and many times to answer to surmised and feigned causes, and suits of defamation, withholding of tithes, and such other like causes and matters, which have been sued more for malice and for vexation than for any just cause of suit ; and not appearing, they are excommunicated, or at least suspended from all divine services, and can only be absolved on payment of the fees of court,' and also to the ' summoner, apparitor, or other light literate person ' by whom they were certified to be summoned, a further sum for every mile distant from the court to the residence of the party. It was therefore enacted that, with certain exceptions, no person should be summoned out of the diocese in which he resided, and the fee for a citation was reduced from two shillings to three pence. 1 (2.) Shortly afterwards an Act was passed depriving the Pope of the annates, or first-fruits of benefices. It recites ' that the Pope's holiness, his predecessors, and the court of Rome, by long time had theretofore taken of all archbishops and bishops elected within this realm of England annates or first-fruits ; which they were compelled to pay before they could receive the Pope's bulls for their elections to be confirmed ; that such annates had risen, grown and increased by an uncha- ritable custom grounded upon no just or good title, and 23 Hen. VIII. c. 9. xi.] The Reformation in England. 393 the payment thereof enforced by the restraint of bulls against all equity and justice : therefore the noblemen of this realm and the wise sage politic commons of the same considering that the court of Rome ceaseth not to tax take and exact the said annates — which were first suffered to be taken within this realm for the only defence of Christian people against the Infidels, but now be claimed as mere duty, only for lucre, against all right and conscience. . . . And albeit that the king and all his subjects, spiritual and temporal, be as obe- dient, devout, catholic and humble children of God and Holy Church as any people be within any realm chris- tened ; yet the said exactions of annates be so intolerable and importable that it is considered and declared by the whole body of this realm now represented by all the states of the same assembled in the present Parliament, that the king's Highness before Almighty God is bound, as by the duty of a good Christian Prince, for the con- servation of the good estate and commonwealth of this his realm, to do all that in him is, to obviate repress and redress the said abusions and exactions of annates.' It was thereupon enacted that the payment of annates should cease ; that any bishop making such payments should forfeit all his lands and goods to the king ; that if any bishop presented by the king to the Pope should be letted or delayed through withholding of bulls, he should be consecrated in England by the archbishop ; that every archbishop presented by the king and from whom the Pope should withhold the necessary bulls, should be consecrated by two bishops to be nominated by the king ; that bishops so consecrated should be installed, accepted, and obeyed, and should enjoy their spiritualities and temporalities as completely as if they had obtained their bulls from Rome ; and that any cen- sures, excommunications, or interdicts issued in conse- quence by the Pope should be utterly disregarded. A remarkable proviso was added, evidently with the object 394 The Reformation in England. [Ch. of influencing the Pope in the negotiations for the divorce still pending at Rome. ' Forasmuch as the king and the Parliament did not intend to use, in this or any other like cause, extremity of violence, before gentle courtesy and friendship first attempted,' it was further enacted that, in order to come to an amicable compo- sition with the Pope, the king should have power to declare by his letters patent, before the beginning of the next session of Parliament, ' whether the premises or any part clause or matter thereof,' should be observed and take effect as a statute or not. 1 Session IV. The fourth session of Parliament began on the 4th of '"'" February. The king had been secretly married to Anne Boleyn in the January or November preceding ; and arrangements were in contemplation for the sen- tence of divorce from Catherine which Archbishop Cranmer pronounced in the ensuing May. It was pro- bably with the view of quashing Queen Catherine's pend- ing appeal to Rome, and also, prospectively, any appeal which she might make against the archbishop's sentence, Act for the that an Act was now passed forbidding, under the penalty restraint of Q f praemunire, all appeals from the spiritual judges in Rome. England to the court of the Pontiff. In a curious and lengthy preamble it is recited that 'By divers and sundry old authentic histories and chronicles it is mani- festly declared that this realm of England is an Empire, and so hath been accepted in the world, governed by one supreme Head and king having the dignity and royal estate of the imperial crown of the same ; unto whom a body politic, compact of Spiritualty and Tem- poralty, owe next to God a natural and humble obe- dience.' After referring to the statutes of Edward I., Edward III., Richard II., and Henry IV., made to keep ' the imperial crown of this realm from the annoyance as well of the see of Rome as from the authority of 1 23 Hen. VIII. c. 20. xi.] The Reformation in England. 395 other foreign potentates/ x and reciting that since those good statutes and ordinances, inconveniences and dan- gers not provided for plainly therein had arisen and sprung up ' by reason of appeals to Rome, in causes tes- tamentary, of matrimony and divorces, tithes, oblations, and obventions, not only to the great vexation, trouble, costs and charges of the king's highness and many of his subjects, but also to the great delay and let to the true and speedy determination of the said causes, for so much as the said parties appealing to the said court of Rome, most commonly do the same for the delay of justice : ' it was therefore enacted : That all causes tes- tamentary, of matrimony and divorce, tithes, oblations, and obventions, already commenced or hereafter coming in contention, whether they concerned the king his heirs or successors, or any subjects or resiants of what degree soever they be, should be heard and deter- mined within the king's jurisdiction, and not elsewhere, in such courts, spiritual and temporal, as the case should require, any inhibitions, or excommunications, or pro- cesses from the see of Rome notwithstanding ; that any person procuring from Rome any foreign process, should incur the penalties of praemunire ; that the course of appeal should be from the archdeacon to the bishop, and from the* bishop to the archbishop 'of his province ; and that in any case touching the king or his successors, the appeal should be to the upper house of Convo- cation. 3 Before the meeting of Parliament for its fifth session, Session v. on the 15th January, 15 33-4. Archbishop Cranmer had r 533-4- pronounced the divorce of Henry from Queen Catherine, the king's marriage with Anne Boleyn had been publicly acknowledged, and a final breach with the Pope appeared imminent. 1 Supra, p. 372-379. * 24 Hen. VIII. c. 12. 396 The Reformation in England. [Ch Act for the sub- mission of the clergy. Archbishops and bishops to be nominated by the king's conge d'elire. (i.) The first important Act passed was one for making the king's assent requisite to the validity of ecclesiastical canons, and for the more general prohibi- tion of appeals to Rome. The clergy in Convocation had already been induced to promise that they would never from thenceforth enact, promulge or execute, any new canons, constitutions, or ordinances, without the king's licence to make them and his approval of the same when made. By the present statute this submis- sion of the clergy was recorded and confirmed, and the penalty of fine and imprisonment at the king's pleasure imposed upon all who should act contrary to its provi- sions. Appeals to Rome, which had been already pro- hibited in certain cases, were now, under penalty of a • praemunire, forbidden in any case whatsoever ; and in lieu of the rights thus abolished it was declared that appeals from the archbishops' courts should be made to the king in chancery, and that the king should, appoint commissioners to hear and determine finally in the cause. 1 (2.) The statute of 1531, by which the payment of annates to the Pope had been contingently forbidden, and which had since been ratified by the king's letters patent, was re-enacted, with additional clauses providing a mode of nominating archbishops and bishops by congi 1 25 Hen. VIII. c. 19, ' An Act for the submission of the clergy to the king's majesty.' The Delegates of Appeals, as the commissioners were termed, continued to form the final court for ecclesiastical appeals, until superseded by the Judicial Committee of the Privy Council under the provisions of 2 & 3 Will. IV. c. 92. By the ' Supreme Court of Judicature Act, 1873,' the Queen is empowered, at any time by Order in Council, to direct that all appeals and petitions, which according to the laws now in force ought to be heard by the Judicial Committee of the Privy Council, shall, from and after a time to be fixed by such order, be referred to and heard by Her Majesty's New Court of Appeal constituted by this Act. And the Court of Appeal, when hearing any appeals in ecclesiastical causes which may be referred to it in manner aforesaid, shall be constituted of ' such and so many of the Judges thereof, and shall be assisted by such assessors, being Archbishops and Bishops of the Church of England,' as shall be directed by any general rules to be made by Order in Council. 36 & 37 Vict., c. 66, sec. 21. xi.] The Reformation in England. 397 d'etre, which is that now in force. For the future no archbishop, or bishop was to be presented to 'the Bishop of Rome, otherwise called the Pope,' (the expression in the previous Act was ' our holy Father the Pope ') for confirmation, or sue out any bulls in his court. But at every vacancy of any cathedral church the king should grant to the dean and chapter a licence under the great seal to elect the person named in the accompanying letters missive, and him they should choose and none other. Should they defer the election for more than twelve days, the king should elect by his letters patent. The prelate so elected or nominated should first swear fealty ; after which the king should signify the election to the archbishop, or if there be no archbishop, to four bishops, requiring them to confirm the election, and to invest and consecrate the bishop elect, who might then sue his temporalities out of the king's hands, making a corporal oath to the king and none other, and should receive the profits spiritual and temporal belonging to his bishopric. 1 * (3.) This statute was immediately succeeded by an- Payment of Pct6r _ i3cncG other lopping off a multitude of petty payments which an( j ot hev paj-al the Pope had been wont to exact. It is declared to be ^notions lor - , . . r . „ . . bidden. founded on the petition of the Commons complaining to the king that his subjects were greatly decayed and im- poverished by the intolerable exactions of the Bishop and See of Rome, the specialities whereof were over long, large in number, and tedious to be particularly inserted ; wherein the Bishop of Rome had not only to be blamed for his usurpation of the revenues, but for his abusing and beguiling the king's subjects, — ' pretending and persuading them that he hath power to dispense with all human laws in causes which are called spiritual, in great derogation of your imperial crown and autho- 1 25 Hen. VIII. c. 20, 'An Act restraining the payment of An- nates, &c.' , g 3 The Reformation in England. [Ch. rity royal ; whereas your grace's realm recognizing no superior under God, but only your grace, hath been and is free from subjection to any man's laws ; but only to such as have been made within this realm for the wealth of the same ; or to such other as by sufferance of your grace and your progenitors the people of this your realm have taken as their free liberty, by their own consent to be used amongst them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of any laws of any foreign Prince, Potentate or Prelate, but as to the ancient and accus- tomed laws of this realm originally established as laws of the same, by the said reference, consent and custom and none otherwise.' It was therefore enacted that Peter-pence and every other kind of payment made to the Bishop of Rome 'and to his chambers which he calleth Apostolic,' and every species of licence, dispen- sation and grant, accustomed to be obtained at Rome, should cease; that thereafter all such licences, faculties, and other writings might be granted by the Archbishop of Canterbury ; that children born of marriages solem- nized by virtue of an archbishop's licence should be legitimate ; and that the penalties of praemunire should be incurred by any one suing to Rome for any licences, bulls, or instruments forbidden by the Act. It was however declared that the king, his nobles and subjects, did not intend by this Act ' to decline or vary from the" congregation of Christ's church in any things concerning the very articles of the Catholic faith of Christendom, or in any other things declared by Holy Scripture and the Word of God necessary for salvation.' In order, doubtless, to leave open a possibility of arrangement with the Pope, it was provided that this Act should not take effect till the next feast of St. John the Baptist (24th June, 1534), unless the king before that Feast should declare his will that it should take effect earlier, and at all times before the said Feast he was empowered xi.] The Reformation in England. 399 to annul the whole or any part of the Act at his pleasure. 1 (4.) The first of Henry's statutes for the settlement Henry's first of the Royal Succession was also passed in this session. sio^Act C<= ' Its principal enactments were : an adjudication by authority of Parliament of the nullity of the king's marriage with Queen Catherine and of the validity of that with Anne Boleyn ; a declaration of fourteen pro- hibited degrees of marriage, the tenth on the list being the marriage of a brother with a brother's widow ; an entail of the crown ; a certain new treasons and mispri- sions of treason ; and an oath to observe and maintain the Act, to be taken by all subjects of full age under the penalty, on refusal, of being adjudged guilty of mis- prision of treason. The terms of the oath precribed in Oath imposed the Act were, that the deponents would ' truly, firmly b y the Act- and constantly, without fraud or guile, observe, fulfil, maintain, defend and keep, to their cunning wit and uttermost of their powers, the whole effects and contents of this present Act.' 3 But the oath actually tendered to be taken differed very materially from that required by the statute. Professedly drawn up in the sense of the statute, this oath was devised so as to include a virtual acknowledgment of the king's ecclesiastical supremacy before that supremacy had been established by the legislature. In its amplified form, it included an abjuration of all faith truth and obedience to any 'foreign authority, prince, or potentate;' a declaration that the deponent reputed ' as vain and annihilate ' any oath, already made or to be made to any person or persons other than the king and the heirs of his body ; and a promise not only to observe the late Act, but also ' all other Acts and Statutes made since the beginning of this present Parliament in confirmation 1 25 Hen. VIII. c. 21, ' An Act for the exoneration from exactions paid to the See of Rome.' 2 Sup-a, p. 201. ' 25 Hen. VIII. c. 22. 4oo The Reformation in England. [Ch. Sir Thomas More and Bishop Fisher. Session VI. •534- Royal Procla- mation against the Pope, 9 June, 1534. or for due execution of the same.' Sir Thomas More and Bishop Fisher when called upon to take this ampli- fied oath which had no- legislative authority, refused, and were in consequence illegally committed to prison, where they remained a long time without trial. In the next session of Parliament the legal difficulty was surmounted by a special Act, by which, after reciting the oath pre- scribed in the Succession Act ; the oath devised (but not by Parliament) for the maintenance and defence of the said Act ; and setting forth the tenor of such devised oath, but with further verbal alterations, it was enacted that the said last mentioned tenor oath should ' be interpreted, ex- pounded, reported, accepted and adjudged the very oath that the King's Highness, the Lords spiritual and tem- poral, and the Commons of this present Parliament meant and intended that every subject of this realm should be bound to take and accept.' 1 For refusing to take this substituted oath, More and Fisher — who were willing to swear to maintain the succession as settled by Parliament, but had scruples as to the preamble of the oath denying the Pope's right of dispensation — were shortly after, while close prisoners in the Tower, and without being heard in their defence, attainted by Acts of ^Parliament of misprision of treason, and executed. 2 Shortly after the close of the preceding session, the news arrived in England of the Pope's adjudication annulling Cranmer's sentence of divorce. This was followed by a royal proclamation ordering ' all manner of prayers, oracions, rubrics, canons, or mass-books, and all other books in churches, wherein the Bishop of Rome is named, or his presumptuous and proud pomp and authority preferred, utterly to be abolished, eradicate and rased out, and his name and memory to be never more (except to his contumely and reproach) remem- 1 26 Hen. VIII. c. 2. ' See Amos, ' Statutes of the Reformation Parliament,' pp. 31-36, 46-52. XL] The Reformation in England. 40 r. bered, but perpetually suppressed and obscured.' * Par- liament met after the prorogation, on the 3 rd of November, 1534, and sat till the 18th of the following month. (1) Act of Su P re " Its first Act was the famous Act of Supremacy. The king had already been recognized by Convocation — under the terror of the Praemunire — ' quantum per Christi legem licet Supremum Caput.' It was now enacted (without the saving clause) that the king should be taken and reputed ' the only Supreme Head on earth of the Church of England called Ecclesia Anglicana, and shall have and enjoy, annexed and united to the imperial crown of this realm, as well the title and style thereof, as all honours, dignities, pre-eminences, jurisdictions, privi- leges, authorities, immunities, profits, and commodities, to the said dignity of Supreme Head of the same church belonging and appertaining ; ' with full power to visit, reform, and correct all heresies, errors, abuses, offences, contempts and enormities which, by any manner of' spiritual authority or jurisdiction, ought to be reformed or corrected. 2 (2) The second Act of this session was Oath to main- ,« , , i_ • i_ r ' 1. 1 jl j \- • ta i n the succes- that to which reference has already been made, as having s i on _ been passed to justify retrospectively the imprisonment of Sir Thomas More and Bishop Fisher, for not taking an oath, which it was now declared 3 had been meant by the legislature to be taken, although it had in fact prescribed a different oath. (3) By another Act the First-fruits first-fruits and tenths of the annual income of all eccle- ™"™ ed t0 the siastical benefices, — the payment of which to the Pope had been stigmatized, in the third session of this Parlia- ment, as having arisen by an uncharitable custom against all equity and justice, and as being exacted only for lucre against all rights and conscience — were ' united and knit to the king's imperial crown for ever.' 4 1 Amos, Reformation Parliament. i 2 26 Hen. VIII. c. I, endorsed on the original ' The King's Grace to be authorized Supreme Head.' 3 Id., c. 2. 4 26 Hen. VIII. c. 3. In the following session of Parliament, ' for the D D crown. 402 The Reformation in England. [Ch. Session VII., and last. '535-6. Dissolution of the smaller monasteries. The destruction of the Papal power, emoluments, and influence in England, and the reduction of the national English Church under due subordination to the state had now been accomplished. In its seventh and last'session the Reformation Parliament commenced the ' second grand innovation in the ecclesiastical polity of England,' — the dissolution of the monasteries. All religious houses under the yearly value of 200/. were, to the num- ber of 376, suppressed by Act of Parliament, and all their property, real and personal, given to the king, his heirs and assigns ' to do and use therewith his or their own wills to the pleasure of Almighty God and the honour and profit of the realm.' 1 To prepare the way for this measure, Thomas Cromwell, the king's chief minister and adviser since the death of Wolsey, had been ap- pointed lord vicegerent of the king in all matters eccle- siastical, and, at his suggestion, commissioners were nominated to make a general visitation of the monas- teries. The nature of their report — which formed the basis of the subsequent legislation — is accurately de- scribed in the preamble of the Act. ' Manifest sin,' it is recited, ' vicious, carnal, and abominable luxury, is daily used and committed in such little and small abbeys, priories and other religious houses of monks, canons, and nuns. Amendment has been long tried, but their vicious living shamelessly increaseth and augmenteth.' It scarcely admits of doubt that the commissioners con- ducted their investigations with unwarrantable harshness, and that their report is in particular cases exaggerated. It is a suspicious circumstance that all the smaller monasteries — whose suppression was alone immediately contemplated — are described as vicious, while those whose incomes rose above the hard and fast line of 200/. a year are not only not blamed but even praised. entire and hearty love that his grace bore to the prelates and other incum- bents,' they were excused from the tenths in the same year that they paid their first-fruits. 27 Hen. VIII. c. 8. 1 27 Hen. VIII. c. 28. xl] The Reformation in England. 403 It looks very much as if the small and remote houses, having no one to speak in their favbur, were condemned, while the larger, whose abbots could refute unfounded accusations by personal testimony from their seats in Parliament, were conveniently spared till a more favour- able opportunity. Yet there is no reason to doubt the substantial and general truth of the allegations of the commissioners. As religious houses were in general ' exempted from episcopal visitation, and entrusted with the care of their own discipline, such abuses had gradually prevailed and gained strength by connivance, as we may naturally expect in corporate bodies of men leading almost of necessity useless and indolent lives, and in whom very indistinct views of moral obligations were combined with a great facility of violating them.' And it is always to be remembered that the vices to which the report bears witness 'are not only probable from the nature of such foundations, but are imputed to them by the most respectable writers of preceding ages.' 1 Arch- bishop Morton, under Henry VII. had obtained a bull from the Pope for the reform of the English monasteries, in which many of them were charged with dissoluteness of life ; and the Abbot of St. Alban's was severely repri- manded by the same archbishop for the alleged scanda- lous vices of himself and his monks. In 1523, Cardinal Wolsey, as papal legate, commenced a visitation of the professed as well as secular clergy, in consequence of the general complaint against their manners. He also set the example of diverting the revenues of these institutions to more useful purposes, by procuring from Rome the suppression of many convents in order to endow a new college at Oxford, which, after his fall, was more com- pletely established under the name of Christ Church. 58 Henry VIII. may have been chiefly actuated by greed 1 Hallam, Const, Hist. i. 70, 71. 2 Ibid. 404 The Reformation in England. [Ch. of gain and by hatred to the monastic orders, who as the special proteges of the Papacy were the most obstinate opponents of his ecclesiastical policy. Their wide- spread influence over the mass of the people rendered them dangerous enemies to a ruler of whose conduct they The 'Pilgrim- disapproved. This is evidenced by the insurrections in a S d°i«6-7? Lincolnshire and Somersetshire, and the great northern rebellion, styled by the insurgents the ' Pilgrimage of Grace,' which broke out, on the suppression of the smaller monasteries, and was imputed to the 'solicitation and traitorous conspiracy of the monks and cano*ns.' The larger The rebellion having been ruthlessly stamped out, 1 dissoTved! eS Henry ventured, four years later, to dissolve the larger a.d. 1540. monasteries also, without encountering any open resist- ance from a terrified people. A few had already been held, contrary to every principle of the common law, to be forfeited to the Crown by the attainder of their abbots for high treason. The rest were all surrendered, practically under duress. It only remained for Parlia- ment to ratify the king's title under the surrenders and forfeitures, in order to obviate any objection on the score that as all the members of a foundation possessed only life-interests in the property, they could not, either singly or collectively, confer anything more on the sovereign. An Act was accordingly passed, which, after hypocriti- cally reciting that the abbots, priors, abbesses, and 1 On the 22nd February, 1537, after the rebels in the north had dispersed, the king wrote to the Duke of Norfolk : ' Forasmuch as our banner is now spread and displayed, by reason whereof, till the same shall be closed again, the course of our laws must give place to the ordinances and statutes martial, our pleasure is that before you close up our said banner again, you shall, in anywise, cause such needful execution to be done upon a good number of the inhabitants of every town, village and hamlet, that have offended in this rebellion, as well by the hanging of them up in trees, as by the quartering of them, anfl the setting of their heads and quarters in every town, great and small, and all such other places, as they may be a fearful spectacle to all other hereafter that would practise any like matter : which we require you to do without pity or respect, according to our former letters. ' The Duke was also to 'cause all the monks and canons that be in anywise faulty, to be tied up, without further delay or ceremony, to the terrible example of others ; wherein we think you shall do unto us high service.' xi.] The Reformation in England. 405 prioresses had made surrender, 'of their own free and voluntary minds, goodwills, and assents, without con- straint, coaction, or compulsion,' vested in the king and his heirs for ever all the property, real or moveable, of the religious houses ' which had been already or might be hereafter dissolved, suppressed, surrendered, or had or might by any other means come into the hands of the king.' 1 However harsh and unjust may have been the mode in Was the sup- which, to use a modern phrase, the ' disestablishment and monasteries disendowment ' of the monasteries was carried out, it was justifiable? a measure politic in itself, supported by the precedents of the Knights Templars under Edward II. and the Alien Priories under Henry V., and fraught with benefits to the English nation. Hallam has well remarked how in many persons the violence which accompanied this great revolu- tion ' excite so just an indignation, that they either forget to ask whether the end might not have been reached by more laudable means, or condemn that end itself either as sacrilege, or at least as an atrocious violation of the rights of property.' But this is not only to ignore the inherent right of the supreme authority of Parliament to confiscate any property, private or corporate, lay or ecclesiastical, for reasons of which it is itself the sole judge, but also to lose sight of the important distinction * between private property and corporate property with respect to the justice and expediency of their confiscation. 'The law of hereditary succession,' continues Hallam, ' as ancient and universal as that of property itself, the law of testamentary disposition, the complement of the former, so long established in most countries as to seem a natural right, have invested the individual possessor of the soil with such a fictitious immortality, such anticipated enjoyment, as it were, of futurity, that his perpetual ownership could not be limited to the term 1 31 Hen. VIII. c. 13. 406 The Reformation in England. [Ch. of his own existence, without what he would justly feel as a real deprivation of property. Nor are the expecta- tions of children, or other probable heirs, less real pos- sessions, which it is a hardship, if not a real injury, to defeat. Yet even this hereditary claim is set aside by the laws of forfeiture, which have almost everywhere prevailed. But in estates held, as we call it, in mort- main, there is no intercommunity, no natural privity of interest, between the present possessor and those who may succeed him ; and as the former cannot have any pretext for complaint, if, his own rights being preserved, the legislature should alter the course of transmission after his decease, so neither is any hardship sustained by others, unless their succession has been already desig- nated or rendered probable. Corporate property, there- fore, appears to stand on a very different footing from that of private individuals ; and while all infringements of the established privileges of the latter are to be sedu- lously avoided, and held justifiable only by the strongest motives of public expediency, we cannot but admit the full right of the legislature to new-mould and regulate the former, in all that does not involve existing interests, upon far slighter reasons of convenience. If Henry had been content with prohibiting the profession of religious persons for the future, and had gradually diverted their revenues instead of violently confiscating them, no Pro- testant could have found it easy to censure his policy.' 1 Distribution of The vast wealth which accrued to the Crown by the the church ,.,. . . • 1 1 111 property. dissolution of the monasteries, might have rendered the king, had he been able to retain it, independent of the Commons. But he was obliged to bribe all around him, to acquiesce in, and maintain a measure, the accomplishment of which had been attained not without great hazard and difficulty. Some portion was expended on public works and on the foundation of six new bishoprics, but the 1 Const. Hist. i. 74, 75 ; and see Freeman, ' Disestablishment and Disendowment, What are they ? ' xi.] The Reformation in England. 4° 7 greater part was distributed among the nobles and gentry, either as gifts or by sale at low prices. The Its results - results of this policy were — (i) the new owners of mo- nastic lands were engaged by the strongest ties of private interest to oppose the re-establishment of the papal do- minion in England ; (2) the territorial aristocracy were strengthened by the large infusion of wealth amongst the newly elevated and the more ancient but decayed families ; and (3) land was rendered to a much greater extent than formerly, an article of commerce. In con- nexion with this latter result, it is remarkable that the very next year after the passing of the Act for the dis- solution of the larger monasteries witnessed the enact- ment of a goodly array of laws to facilitate the transfer and enjoyment of real property, a circumstance which can scarcely be regarded as fortuitous. 1 Henry had now been completely victorious in his con- Doctrines of the . , ' J Anglican test with the Pope ; and the English clergy were so Church declared humbled and intimidated that they dared not offer any by Heni 7- open resistance to the royal will. So far as he had ad- vanced on the road of ecclesiastical reform, with the single exception of the confiscation of the monasteries, the king had probably been heartily supported by a ma- jority of the nation. But there was a growing minority who were eagerly desirous of essential changes in reli- gious -faith. With these Henry had no sympathy. Concurrently with the series of political and legal 1 Amos, Reformation Parliament, p. 313. Mr. Amos enumerates among the real property statutes of this year, the statutes— of Wills ; of limitations; of fines ; for conveyances of tithes ; for lessees of tenants in tail ; for executions upon lands ; for partitions ; for disseisins ; for grantees of rever- sions ; for collusive recoveries ; for arrearages of rent claimable by executors ; and for buying of titles. Another indirect consequence of the partition of the church lands among the laity, to which Mr. Amos also calls attention, was to promote the extinction of villeinage. Sir Thomas Smith in his ' Commonwealth of England ' (b. 3, u. 10.) tells us that the clergy, while im- pressing upon the laity the duty of manumitting theirvilleins, ' had a scruple in conscience to impoverish and despoil the church so much as to manumit such as were bound to their churches, or to the manors which the church had gotten,' but 'the monasteries coming into temporal men's hands have been occasion that now they (the villeins) be almost all manumitted. 4o8 The Reformation in England. [Ch. Act of the Six" Articles. A.D. 1539. English transla- tion of the Bible. a.d. 1538. changes which had been effected in the ecclesiastical system, severe measures of repression had been taken againsfc the holders of heretical doctrines, and many had from time to time suffered for their opinions. In his new character of supreme head of the Church, Henry now determined to vindicate its doctrinal orthodoxy by imposing on his people a compulsory belief in all the leading doctrines of the Romish Church. By the ' Sta- tute of the Six Articles,' as it is commonly called, it was affirmed : 1. That in the eucharist there is really present the natural body of Christ, under the forms, but without the substance, of bread and wine. 2. That commu- nion in both kinds is, not necessary to salvation. 3. That priests may not marry by the law of God. 4. That vows of chastity ought to be observed. 5. That private masses ought to be retained in the English Church. 6. That auricular confession is expedient and necessary, and ought to be retained. The penalties for writing, preaching, or disputing against these articles were : Against the first article, death as a heretic with- out the option of abjuring. Against the other five, the usual penalties of felony. The Act also declared the marriages of priests or nuns utterly void, ordered any such who were married to be immediately separated, and pronounced their future cohabitation to be felony. Lastly, persons contemptuously refusing to confess at the usual times, or to receive the sacrament, were, for the first offence to be fined and imprisoned ; and for the second, to suffer the punishment of felony. 1 In some other re- spects Henry was induced by Cromwell and Cranmer to favour Protestant doctrines. An English translation of the Bible was directed to be set up in each parish church for the use of the people ; 2 and in the ' Institu- 1 31 Hen. VIII. c. 14, 'An Act for Abolishing of Diversity of Opinions in certain Articles concerning Christian Religion.' 2 In x 543> by an Act 'for the advancement of true religion' (34 Hen. VIII. c. 1) the liberty formerly granted of reading the Bible was abridged. xi.] The Reformation m England. 409 tion' and 'Necessary Doctrine and Erudition of a 'institution' and „, . . >ii ,,.,ii 1 1 ' Erudition of a Christian man, — books published by royal authority, — Christian man.' explications were given which, 'if they did not abso- lutely proscribe most of the ancient opinions, threw at least much doubt upon them, and gave intimations which the people, now become attentive to these ques- tions, were acute enough to interpret.' x The actual reformation in religion was established in Edward VI. the early part of the reign of Edward VI., mainly The Re i ig ; ous through the instrumentality of Cranmer and the Pro- Reformation tector Somerset. The first Act of Edward's first Parlia- ment (which met on the 4th of Nov. 1547), directed the ■sacrament of the altar to be administered in both kinds, as being agreeable to primitive usage. * In the following year was passed the ' Act for Uniformity of Service and Administration of the Sacraments,' ordaining that the ' order of divine worship,' contained in the book of Com- mon Prayer which had been, ' with the aid of the Holy Ghost,' drawn up by a committee of bishops and other divines appointed for that purpose, should in future be the only one to be used by all ministers in any cathedral, parish, or other church. 3 In the same session, the mar- riage of priests was declared lawful ; 4 and shortly after- wards images and pictures of saints in churches were ordered to be destroyed. 5 But these changes were not Insurrections, carried out without considerable opposition from a part of the nation. Insurrections of a serious nature broke AD> '549- 1 Hallam, Const. Hist. i. 82. 2 I Edw. VI. c. I, An Act 'against such as shall irreverently speak against the sacrament of the altar, and the receiving thereof under both kinds.' 3 2 & 3 Edw. VI. c. I. The penalties for refusing to use, or speaking or writing in derogation of, the Book of Common Prayer, were, for the first or second offence, a fine ; for the third, forfeiture of goods and imprisonment for life. In 1552, a second Act of Uniformity (5 & 6 Edw. VI. c. 1) was passed, reciting that the Book of Common Prayer had been ' perused, explained, and made fully perfect,' and ordering the new version alone to be used. 4 2 & 3 Edw. VI. ... 21. 5 3 & 4 Edw. VI. u. 10. 4io The Reformation in England. [Ch. xi. Persecution. Mary. . I553-I558- Re-establish- ment of the Papal religion. The Marian Persecution. The Reforma- tion promoted by it. out in Devonshire, Norfolk, and several other counties ; and religious persecution, 'the deadly original sin of the reformed churches ' was employed as vigorously, if not so extensively,' as in the succeeding reigns of Mary and Elizabeth. During the short reign of Mary the Papal religion was completely re-established, probably with the entire ap- proval of a large portion, if not of a majority, of the nation, for whom the progress of the reformation doc- trines had been too precipitate. All the laws made against the supremacy of the See of Rome, since the 20th year of Henry VIII., were formally repealed ; but it was found impossible to restore the ecclesiastical pro- perty in the hands of subjects ; * and even, the bill for restoring to the Church the first-fruits and impropria- tions in the queen's hands was passed not without difficulty. The cruel and wide-spread persecution of the Protestants under Mary, far from eradicating the re- formed faith was instrumental in promoting it. The abhorrence and disgust excited in the people against Mary and the Romish hierarchy were extended to the doctrines which they professed. ' Many persons,' remarks Hallam, ' are said to have become Protestants under Mary, who, at her coming to the throne, had retained the contrary persuasion. And the strongest proof of this may be drawn from the acquiescence of the great body of the people in the re-establishment of Protestant- ism by Elizabeth, when compared with the seditions and discontent on that account under Edward.' 2 1 1 & 2 Phil. & Mary, c. 8, repealing 'all Statutes, Articles, and Provi- sions made against the See Apostolic of Rome, since the 20th year of King Henry VIII. and also for the Establishment of all Spiritual and Ecclesiasti- cal possessions and hereditaments conveyed to the Laity. ' The preamble recites that ' much false and erroneous doctrine hath been taught, preached and written, partly by divers the natural-born subjects of this realm, and partly being brought hither from sundry other foreign countries, had been sown and spread abroad within the same. ' 2 Const. Hist. i. 107. CHAPTER XII. THE TUDOR PERIOD. REIGN OF ELIZABETH. (A.D. 1558-1603.) THE reign of Elizabeth spans a period of very great political and religious ferment throughout Europe. It is the glory of this great queen that by her courage and wisdom, aided by the able policy of her statesmen, Cecil, Nicholas Bacon, and Walsingham, she safely guided the nation through a sea of troubles, foreign and domestic, and achieved for England a position in the foremost rank of European monarchies. In commercial and naval enterprise, in every branch of material pros- perity, the country advanced with sure and rapid strides, while literature was adorned by the writings of Shak- spere,. Spenser, Sidney, Hooker, and Jewel. But of constitutional progress during the greater part of Eliza- beth's reign there is little to be recorded. From her father she had inherited the arbitrary Tudor notions of the royal prerogative. Her government was eminently despotic both in church and state ; and it was only at intervals that the gradually reviving spirit of liberty manifested itself in the House of Commons. A brief consideration of the principal features of Ecclesiastical Elizabeth's ecclesiastical polity — so important in its in- E^abetj, fluence on later English constitutional history — will appropriately precede a discussion of the civil govern- ment during her reign. 412 The Tudor Period. [Ch. The first care of Elizabeth's first Parliament — which met on the 25th of January, 1558-9, about two months after her accession to the throne — was to restore the con- stitution and liturgy of the national church to nearly the same state in which Edward VI. had left them at his death. This was effected by the statutes commonly known as the Acts of Supremacy and Uniformity. By Act of Supre- the Act of Supremacy, the statute of Philip and Mary macy, A.D.1559. ^ & 2 phn & Maf _ c g ^ which ^ d generally repealed all the previous statutes affecting religion, was abro- gated, — thus reviving the laws of King Henry which established the ecclesiastical supremacy of the crown. It was also particularly enacted : (1) That 'no foreign prince, person, prelate, state, or potentate, spiritual or temporal, shall use enjoy or exercise any manner of power, jurisdiction, superiority, authority, pre-eminence, or privilege, spiritual or ecclesiastical, within this realm, or the dominions thereof.' (2) That ' such jurisdictions, privileges, superiorities, pre-eminences, spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority hath heretofore been, or may lawfully be, exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order, and correc- tion of the same, and of all manner of errors, heresies, schisms, abuses, contempts and enormities, shall for ever be united and annexed to the imperial crown of this realm.' (3) All beneficed ecclesiastics, and all judges, justipes, mayors, and other laymen holding office under the crown, were required to take the oath of supremacy and allegiance, 1 on pain of forfeiting their benefices or 1 This oath, which remained unaltered till the Revolution, was thus worded : ' I, A. B. , do utterly testify and declare that the Queen's Highness is the only supreme governor of this realm, and all other her highness's dominions and countries, as well in all spiritual and ecclesiastical tilings or causes as temporal ; and that no foreign prince, person, prelate, state or potentate, hath or ought to have any jurisdiction, power, superiority, pre- eminence or authority, ecclesiastical or spiritual, within this realm ; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities and authorities, and do promise that from henceforth I shall xii.] Elizabeth. 4*3 offices. (4) Any person maintaining the spiritual or temporal jurisdiction of any foreign prince or prelate should, for the first offence, forfeit all his property real and personal ; for the second, incur the penalties of praemunire, and for the third offence, suffer death as a traitor. (5) The queen was also empowered to execute the ecclesiastical jurisdiction of every kind vested in her by the Act by means of commissioners appointed under the great seal for such time as she should direct. 1 It was by virtue of this last provision that Elizabeth established the famous High Commission Court, which continued a powerful instrument of oppression in the hands of the crown until abolished by the Long Parliament under Charles I. By the Act of Uniformity, (1) the revised Book of ActofUnifor- Common Prayer as established by Edward VI. in 1552, was, with a few alterations and additions, revived and confirmed. (2) Any parson, vicar, or other minister, whether beneficed or not, wilfully using any but the established liturgy was to suffer, for the first offence, six months' imprisonment, and, if beneficed, forfeit the profits of his benefice for a year ; for the second offence, a year's imprisonment ; for the third, imprisonment for life. (3) All persons absenting themselves, without lawful or reasonable excuse, from the service at their parish church on Sundays and holydays, were to be punished by ecclesiastical censures and a fine of one shilling for the use of the poor. 2 By another Act of the same session, first-fruits and First-fruits and bear faith and true allegiance to the Queen's highness, her heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre- eminences, privileges, and authorities, granted or belonging to the Queen's highness, her heirs and successors, or united and annexed to the imperial crown of this realm.' 1 1 Eliz. c. I, ' An Act to restore to the crown the ancient jurisdiction over the estate ecclesiastical and spiritual, and abolishing all foreign powers repugnant to the same. ' *" 1 Eliz. c. 2, ' An Act for the Uniformity of Common Prayer in the Church, and Administration of the Sacraments.' 4 i4 The Tudor Period. [Ch. tenths restored to the crown. The Thirty-nine Articles of Religion. Peculiar charac- ter of the re- formed national church. tenths, which the preamble states the late queen had given up ' upon certain zealous and inconvenient respects,' were again vested in the crown, in order to lessen ' the huge, immeasurable and inestimable charges of the royal estate.' x Such religious houses as Queen Mary had refounded were suppressed, and their property given to the crown. 2 In 1563 the articles of the English Church, forty-two in number, originally drawn up in 1 5 5 1 under Edward VI., were revised in Convocation, and reduced to their present number, thirty-nine; but it was not until 1571 that they were made binding upon the clergy by Act of Parliament. 3 These changes in religion were not effected without considerable opposition in the House of Lords, nine temporal peers and all the bishops having protested against the Bill of Uniformity establishing the Anglican liturgy : the Commons, on the contrary, far from offering any opposition, were throughout Elizabeth's reign anxious for further reforms. The formularies of the national church thus finally established, appear to have been designedly framed in a comprehensive spirit, so as to avoid giving offence to the moderate, men of both the religious parties in the state. With reference to this peculiar character of the reformed national church as a compromise between the extreme parties of the old and new theology, Lord Macaulay has remarked : ' She occupies a middle position between the churches of Rome and Geneva. Her doctrinal confessions and discourses, composed by Protestants, set forth principles of theology in which Calvin or Knox would have found scarcely a word to disapprove. Her prayers and thanksgivings, derived from the ancient breviaries, are very generally such that Cardinal Fisher or Cardinal Pole might have 1 1 Eliz. c. 4. 1 Eliz. c. 24. 13 Eliz. c. 12. xii.] Elizabeth. 415 heartily joined in them. . . . Nothing, however, so Relation in strongly distinguished the Church of England from church stood to other churches as the relation in which she stood to tlie crown - the monarchy. The king was her head. The limits of the authority which he possessed, as such, were not traced, and indeed have never yet been, traced, with pre- cision. . . . What Henry and his favourite counsellors meant, at one time, by the supremacy, was certainly nothing less than the whole power of the keys. The king was to be the Pope of his kingdom, the vicar of God, the expositor of Catholic verity, the channel of sacramental graces. He arrogated to himself the right of deciding dogmatically what was orthodox doctrine and what was heresy, of drawing up and imposing con- fessions of faith, and of giving religious instruction to his people. He proclaimed that all jurisdiction, spiritual as well as temporal, was derived from him alone, and that it was in his power to confer episcopal authority, and to take it away. . . . According to this system, as expounded by Cranmer, the king was the spiritual as well as the temporal chief of the nation. In both capacities his highness must have lieutenants. As he appointed civil officers to keep his seal, to collect his revenues, and to dispense justice in his name, so he appointed divines of various ranks to preach the gospel, and to administer the sacraments. These opinions the archbishop, in spite of the opposition of less courtly divines, followed out to every legitimate consequence. He held that his own spiritual functions, like the secular functions of the chancellor and treasurer, were at once determined by a demise of the crown. When Henry died, therefore, the primate and his suffragans took out fresh commissions, empowering them to ordain and govern the church till the new sovereign should think fit to order otherwise. . . . These high pretensions gave scandal to Protestants as well as to Catholics ; ' and Elizabeth ' found it necessary expressly to disclaim 41 6 The Tudor Period. [Ch. that sacerdotal character which her father had assumed, and which, according to Cranmer, had been inseparably joined, by divine ordinance, to the regal function. 1 . . . The queen, however, still had over the church a visita- torial power of vast and undefined extent. ... By the royal authority alone, the prelates of the Church of England were appointed. By the royal authority alone her Convocations were summoned, regulated, prorogued and dissolved. Without the royal sanction her canons had no force. One of the articles of her faith was that without the royal consent no ecclesiastical council could lawfully assemble. From all her judicatures an appeal • lay, in the last resort to the sovereign, even when the question was whether an opinion ought to be accounted heretical, or whether the administration of a sacrament had been valid. Nor did the Church grudge this ex- tensive power to our princes. By them she had been called into existence, nursed through a feeble infancy, guarded from Papists on one side and from Puritans on the other, protected against Parliaments which bore her no goodwill, and avenged on literary assailants whom she found it hard to answer. Thus gratitude, hope, fear, common " attachments, common enmities, bound her to the throne. All her traditions, all her tastes were monarchical. Loyalty became a point of professional honour among her clergy, the peculiar badge which dis- tinguished them at once from Calvinists and from Papists. Both the Calvinists and the Papists, widely as they differed in other respects, regarded with extreme jealousy all encroachments of the temporal power on the domain of the spiritual power. Both Calvinists and Papists maintained that subjects might justifiably draw the sword against ungodly rulers. In France, Calvinists 1 The 37th Article of religion, framed under Elizabeth, declares in emphatic terms, that the ministering of God's Word does not belong to princes. The title of ' Head of the Church,' after being used by Henry VIII., Edward VI., and for a short time by Mary also, was given up by the latter sovereign, and has not since been assumed by the crown. xii.] Elizabeth. 4 l 7 * resisted Charles IX. ; Papists resisted Henry IV. ; both Papists and Calvinists resisted Henry III. In Scotland, Calvinists led Mary captive. On the north of the Trent Papists took arms against the English throne. The Church of England meantime condemned both Calvinists and Papists, and loudly boasted that no duty was more constantly or earnestly inculcated by her than that of submission to princes.' J When the oath of supremacy was tendered to the Oathofsupre- bishops, one only, Kitchin of Llandaff, was prevailed all the bishops upon to take it ; the rest, on refusal, were deprived of their ^^P 1 one - sees. 3 But the general body of the beneficed cle'rgy, with But th f, cl »gy , r i. i • i ■ i generally con- the exception of a very small number, acquiesced in the form. new order of things and retained their livings. 3 Throughout her reign it was the constant policy of Persecuting Elizabeth to maintain her ecclesiastical supremacy, and to enforce outward conformity with the religion esta- blished by law.* This policy, which is expressed in a series of persecuting and disabling Acts against Roman Catholics and Protestant sectaries, continued as a marked feature of our system of government for more than two centuries. The church and the throne mutually sup- ported each other against the advocates of civil and religious freedom, and to the heat of political contests was added the bitterness of theological hatred. The first attack upon the Catholics was made by a Act of 'S 62 - 1 Macaulay, Hist. Eng. i. 41-46. 2 It happened that ten sees were vacant at Elizabeth's accession, and fifteen more were vacated by the non-juring bishops. Matthew Parker, who had been chaplain to Queen Anne Boleyn, was consecrated Arch- bishop of Canterbury, December, I?, 1559, and before the end of 1562, all the sees, except Oxford, were filled up by men eminent for their zeal in the Protestant cause, many of whom had been exiles during the Marian persecution. 3 Out of a body of nearly 10,000, only about 100 dignitaries, and 80 paro- chial priests, resigned their benefices or were deprived. Strype's Annals, 169, cited by Hallam. 4 Elizabeth's own words were : ' She would suppress the papistical religion, that it should not grow ; but would root out puritanism, and the favourers thereof.' 'No man should be suffered to decline, either to the right or left hand, from the drawn line limited by authority.' Strype, Life of Whitgift, and Eccles. Annals, iv. 242. 41 8 The Tudor Period. [Ch. statute passed in 1562, 'for the assurance of the queen's royal power over all estates and subjects within her dominions.' The preamble recites the ' perils, dishonours, and inconveniences that have resulted from the usurped power of the see of Rome, and the dangers from the fautors of that usurped power, at this time grown to marvellous outrage and licentious boldness, and now requiring more sharp restraint and correction of laws, than hitherto in the time of the queen's most mild and merciful reign, hath been had, used, and established.' It was therefore enacted: (1) That the penalties of praemunire should be incurred by all who maintained the authority of the Pope within the realm. (2) That the bishops and commissioners to be appointed under the great seal should have power to tender the oath of supremacy to, and that the same should be taken by, all persons who had ever been admitted into holy orders or to any degree in the universities ; all schoolmasters and public and private teachers of children ; and all barristers, attorneys, officers of the inns of court, and other persons engaged in the execution of the law. The penalty for the first refusal of this oath was that of praemunire, but if, after three months, there was a second tender and refusal, the offence was made high treason. (3) Every member of the House of Commons was to take the oath before entering upon his parliamentary functions ; but it was not to be tendered to the temporal peers, in whom, although many of them were still Catholics, the queen declared her full confidence. 1 Speech of Lord This severe statute excited some opposition in both Houses of Parliament. In the Upper House, Lord Mon- tagu delivered a speech against it which is characterized by great liberality and tolerance, virtues which in that age were rarely advocated by any party, except when itself the object of persecution. 'This law,' said 1 5 Kliz. t . 1. xii.] Elizabeth. 419 Lord Montagu, ' is not necessary ; forasmuch as the Catholics of this realm disturb not, nor hinder the public affairs of the realm, neither spiritual nor temporal. They dispute not, they preach not, they disobey not the queen ; they cause no trouble nor tumults among the people ; so that no man can say that thereby the realm doth receive any hurt or damage by them. They have brought into the realm no novelties in doctrine and religion. This being true and evident, as it is indeed, there is no necessity why any new law should be made against them. . . . I do entreat,' he continued, ' whether it be just to make this penal statute to force the subjects of this realm to receive and believe the religion of Protestants on pain of death. This I say to be a thing most unjust ; for that it is repugnant to the natural liberty of men's understanding. For under- standing may be persuaded but not forced.' He con- cluded by pointing out the danger of driving the Catholics to forcible resistance : ' It is an easy thing to understand that a thing so unjust, and so contrary to all reason and liberty of man, cannot be put in execution but with great incommodity and difficulty. . . . To be still, or dissemble, may be borne and suffered for a time — to keep his reckoning with God alone ; but to be compelled to lie and to swear, or else to die therefor, are things that no man ought to suffer and endure. And it is to be feared, rather than to die, they will seek how to defend themselves ; whereby should ensue the contrary of what every good prince and well-advised commonwealth ought to seek and pretend, that is, to keep their kingdom and government in peace.' 1 This reasoning seems to have produced some effect upon the Government, although it did not prevent the passing of the statute. Archbishop Parker privately instructed the bishops to use great caution in tendering the oath of 1 Strype, cited in Hallam, Const. Hist. i. 116. 420 The Tudor Period. [Ch. supremacy under the Act, and never to do so the second time, on which the penalty of treason might attach, without his previous authorization. Some time afterwards, however, Home, Bishop of Winchester, in- discreetly giving vent to his indignation against Bonner, the deprived Bishop of London, who was specially obnoxious on account of the prominent part taken by him in the Marian persecution, indicted him for refusing to take the oath of supremacy. On his trial, Bonner pleaded that Home was not a lawful bishop, and there- fore had no authority to tender the oath. The prosecu- tion was now dropped ; Bonner was suffered to return to his prison in the Marshalsea, where he had been con- The Bishop's fined since the accession of the queen ; and as soon as Par- liament re-assembled, an Act was passed declaring the consecration of the archbishops and bishops, as practised since the queen's accession, ' good, lawful, and perfect.' 1 The Roman Eight years elapsed before further legislation was peered of dis- directed against the Roman Catholics ; but in the mean- loyalty, time several circumstances had occurred, which rendered them specially obnoxious to the Government, not merely as being opponents of the established religion, but as tainted with disloyalty to the queen. At first the catholics generally had attended church, and yielded an apparent conformity to the English service; but in 1563, the Council of Trent, in its last session, pro- nounced a condemnation of such occasional conformity. This censure was industriously circulated throughout England by William Allen 3 and other priests, who now 1 8 Eliz. c. I. The only irregularity in the consecration of the bishops had consisted in the use of the ordinal of Edward VI. before it had been legally re-established. As the Roman Catholic ordinal had been abolished and that of Edward VI. was not yet re-established, there existed at the time no form of consecration prescribed by law. 2 Allen had been principal of St. Mary Hall, Oxford, in Mary's reign, and had gone into exile on the re-establishment of the reformed faith. He founded a seminary at Douay, where Catholics of the best English families were sent to be educated, and whence a constant succession of priests passed into England, not only to look after the spiritual welfare of the Romanists, but to intrigue against the Government. Allen was made a cardinal in 1587, Xii.] Elizabeth. 4 21 ventured to return from the voluntary banishment into which they had gone on the death of Queen Mary. The Romanists, in consequence, began to decline attendance at church ; and many withdrew abroad, where they formed centres of disaffection, in which plots were con- stantly being hatched against Queen Elizabeth. The relations of Elizabeth towards her Catholic sub- Elizabeth's jects were also materially affected by the peculiar cha- throne pure i y racter of her title to the throne, and the uncertainty in parliamentary, which the succession was involved, — an uncertainty which was increased by her repeated refusals to marry, or to agree to a parliamentary appointment of a successor. The queen's title to the throne depended absolutely on an Act of Parliament (35 Hen. VIII. c. i), by which the crown had been settled upon her. She had also been nomi- nated in the succession, after her sister Mary, by her father's will, and her title had been ratified by the Act passed immediately after her accession (1 Eliz. c. 3). Her right to the crown was therefore based upon the best of all titles, the will of the people expressed by their representatives in Parliament. But the natural The Catholics prejudice of most of the Roman Catholics in favour of a ^am claims of monarch of their own religion, coupled with the prefer- Mar y Queen of ence felt by many for a hereditary over a parliamentary title, led them to regard the Queen of Scots, grand- daughter of Henry VIII. 's elder sister Margaret, as having a prior right to the throne during Elizabeth's life, and in any case as its presumptive heir after her decease. Under the provisions of Henry's will — executed under Title of the parliamentary authority — the succession in remainder ?,? use - of ^ uf " was vested in the House of Suffolk to the postpone- ment, if not exclusion, of the Scottish line. But the Harsh treat- harsh and unjust condemnation of Lady Catherine ment °. f Lad y Grey's private marriage with the Earl of Hertford, which a enne rey ' wrote an admonition in favour of the projected Spanish Armada, and was rewarded by Philip II. with the Archbishopric of Mechlin. He died ra 1594. Lingard, Hist. Eng. viii. 140, 442. 42 2 The Tudor Period. [Ch. Treason of Edmund and Arthur Pole. Effect of Mary's flight into England. Rebellion of the Duke of Norfolk ; and of the Earls of Northumber- land and West- moreland, 1569. Bull of Pius V. A,D. 1570. Elizabeth's jealous humour procured to be pronounced early in her reign, cast a doubt upon the legitimacy of the Protestant line of Suffolk, and thus strengthened the hopes of the Catholic adherents of Mary of Scotland. So early as 1563, Edmund and Arthur Pole, nephews of the late cardinal, were tried and convicted of high treason on a charge of designing to set the Queen of Scots on the throne and to re-establish Romanism in England. In 1567, Mary, having been driven from her throne, in a great measure owing to the intrigues of Elizabeth's ministers with the Scottish malecontents, escaped into England, only to endure a long imprisonment ending in a violent death. Her presence on English soil revived the hopes of the Romanists. Plots were formed for her liberation, for the invasion of England by Spain, and for the re-establishment of the Romish religion. In 1569 the Duke of Norfolk, the greatest and richest subject in England, was concerned in an extensive con- spiracy, involving the deposition of the queen, his own marriage with Mary of Scotland, and the invasion of the kingdom by the Duke of Alva. 1 Later in the same year the Earls of Northumberland and Westmoreland took up arms in the north, with the design of restoring the old religion; and at the beginning of 1570, Pope Pius V., who had secretly instigated this insurrection, published his celebrated bull, excommunicating and de- posing Elizabeth, and absolving all her subjects from their oaths of fidelity and allegiance. ' The bull of Pius V.,' observes Hallam, ' far more in- jurious in its consequences to those it was designed to serve "than to Elizabeth, forms a leading epoch in the history of our English Catholics. It rested upon a principle never universally acknowledged, and regarded with much jealousy by temporal governments, yet main- tained in all countries by many whose zeal and ability 1 Supra, p. 360. xii.] Elizabeth. 4 2 3 rendered them formidable — the right vested in the supreme pontiff to depose kings for heinous crimes against the church. One Felton affixed this bull to the gates of the Bishop of London's palace, and suffered death for the offence. So audacious a manifestation of disloyalty was imputed with little justice to the Catholics at large, but might more reasonably lie at the door of those active instruments of Rome, the English refugee priests and Jesuits dispersed over Flanders, and lately established at Douay, who were continually passing into the king- dom, not only to keep alive the precarious faith of the laity, but, as was generally surmised, to excite them against their sovereign.' l As soon as Parliament met, in April, 1571, two statutes Actsof 1571. were passed in reply to the Pope's bull, and as a precau- tion against fresh attempts on the part of Mary's parti- sans. By the first of these, (1) It was made high treason to affirm that the queen was a heretic, schismatic, tyrant, infidel, or usurper of the crown ; or that the common law, until altered by Parliament, ought not to bind the right of the Crown, or that the queen, with the authority of Parliament, was not able to make laws limiting and binding the Crown and the descent, inheritance, and government thereof. (2) And it was further declared to be an offence, punishable by imprisonment and for- feiture of goods, and on repetition by a praemunire, for any one during the queen's life, and before the same had been established by Parliament, to affirm, print, or write that any one particular person was or ought to be heir or successor of the queen, except the, natural issue of her body. 2 The second Act refers specially to the Pope's recent bull, and recites that by colour thereof ' wicked persons, in parts of the realm where the people, for want of good instruction, are weak, simple, and ignorant, have so far wrought, that sundry simple and ignorant persons 1 Const. Hist. i. 137. 3 13 Eliz. c. 1 ; Supra, p. 204. 124 The Tudor Period. [Ch. have been reconciled to the usurped authority of Rome, and to take absolution, whereby have grown great dis- obedience and boldness, not only to withdraw from all divine service, but thinking themselves discharged from all allegiance to the queen, wicked and unnatural re- bellion hath ensued.' It was therefore enacted : (i) That any person publishing any bull from Rome, or absolving and reconciling any one to the Romish Church, or being so reconciled, should incur the penalties of high treason. (2) Aiders and comforters after the fact were to incur praemunire ; and any person to whom absolution should be offered, and who should not disclose such within six weeks to some member of the Privy Council, was to be held guilty of misprision of treason. (3) Prae- munire was also imposed upon such as brought into the realm ' things called Agnus Dei, or any pictures, crosses, beads, or such-like superstitious things, hallowed and consecrated, as it is termed, by the Bishop of Rome.' T Jesuits and mis- During an interval of ten years no further statute was sionaiy priests passe d against the Catholics, but the existing laws were in England. ^ , „ . ., , . .. -n enforced by the Government in all their severity. Perse- cution, however, served only to excite fresh manifestations of zeal. Missionary priests were poured into the king- dom from Douay and Rome ; and in 1580, a mission of the recently-founded order of Jesuits, under the leader- ship of Robert Parsons and Edmund Campian, was despatched by Pope Gregory XIII. to bring about the re-conversion of England. The Government was seriously alarmed. A proclamation was issued de- nouncing as aiders and abettors of treason all who should harbour or conceal any Jesuit or seminarist in the kingdom, and as soon as Parliament met a severe Act of 1580-1. Act was passed 'to retain the queen's majesty's subjects in their due obedience.' By this statute : (1) The former provisions making it high treason to reconcile any of her 1 13 Eliz. c. 2. xii.] Elizabeth. 425 majesty's subjects, or to be reconciled to the Church of Rome, were re-enacted. (2) The celebration of the mass was made punishable with a fine of 200 marks and a year's imprisonment ; hearing mass, with a fine of 100 marks and imprisonment for a like period. (3) All persons above sixteen absenting themselves from church, unless they should hear the established service at home, were to forfeit 20/. a month, or, in default of payment within three months after judgment, to be imprisoned until they should conform. (4) All schoolmasters were to be licensed by the ordinary, or suffer a year's im- prisonment ; and persons employing them unlicensed, were to forfeit 10/. a month. 1 Shortly afterwards, the Jesuit Campian and several The Jesuit seminary priests from Flanders, after having eluded the am P lan - vigilance of the Government for some time, were seized and imprisoned in the Tower. Under the pain of the rack, 3 Campian revealed the names of several Catholics who had sheltered him, who were fined and imprisoned for the offence. Failing to give satisfactory answers as 1 23 Eliz., c.l. By a subsequent Act (29 Eliz. c. 6) the queen was empowered for default of payments of the fine, to seize two-thirds of the land and all the goods of the delinquents. 2 ' The common law of England has always abhtffred the accursed mysteries of a prison-house, and neither- admits of torture to extort confes- sion, nor of any penal infliction not warranted by a judicial sentence. But this law, though still sacred in the courts of justice, was set aside by the Privy Council under the Tudor line. The rack seldom stood idle in the Tower for all the latter part of Elizabeth's reign.' Hallam, Const. Hist, i. 148. For a description of the different kinds of torture,— the rack, the 'scavenger's daughter,' the iron gauntlets, and the 'little ease,'— see Lingard, viii. 428, note (G.) Sir Edward Coke (3 Inst. p. 35) says the rack in the Tower was introduced by the Duke of Exeter under Henry VI. whence it obtained the name of 'the Duke of Exeter's daughter.' He adds ' there is no law to warrant tortures in this land, nor can they be justified by any prescription being so lately brought in.' Under James I. the torture was employed in the case of the Gunpowder Plot conspirators, and on other occasions ; but on the trial of Felton {temp. Car. I.) for the assassination of the Duke of Buckingham, when it was proposed in the Privy Council to put the accused to the rack in order to discover his accomplices, the judges (being consulted) declared unanimously that no such proceeding was allow- able by the law. They equally refused, as being ultra vires, to add some additional punishment, at the king's request, to that which the law had ordained for murder. 3 State Tr., 367, 371. Mr. Jardine, in his 'Read- ing on the use of Torture ' says ' the last trace of torture in England, of which I can find any trace, occurred in the year 1640.' 426 The Tudor Period. [Ch. Executed 1581, Dec. 1. Plots against the queen's life. Association for the queen's defence. to the Pope's deposing power, he was tried and con- demned for high treason and executed with two other priests. Driven to desperation by the severity of the persecu- tion, some of the more reckless spirits among the Catholics now began to form plots for the assassination of the queen, as a means to the elevation of Mary of Scotlarfd to the throne. In September, 1584, one Creighton, a Scottish Jesuit, was captured at sea, bear- ing about him the heads of a plan for a Spanish invasion and the deposition or death of the queen. When Parlia- ment met in November, its first Act was one 'for the security of the queen's most royal person and the con- tinuance of the realm in peace.' This statute legalized a voluntary association which had been formed shortly before, the members of which had sworn to protect the queen from assassination or to avenge her death. It also enacted that if any invasion or rebellion should be made by or for any person pretending title to the crown after the queen's decease, or if anything be com- passed or imagined tending to the hurt of her person, with the privity of any such person, a number of peers, privy councillors, and judges, to be commissioned by the queen, should examine and give judgment on such offences and all circumstances relating thereto. All persons who should authorize such an attempt, or on whose behalf the same should be made, were declared to be incapable of ever inheriting the throne. 1 It was under the provisions of this statute that Mary Queen of Scots was tried and found guilty, in 1586, of having been privy to Babington's conspiracy to kill the queen, and of having herself ' compassed and imagined within this realm of England divers matters tending to the hurt, death, and destruction of the royal person of our sovereign lady the queen.' 2 1 27 Eliz. c 1. 2 For some just remarks on the trial and execution of Mary of Scotland, xii. ] Elizabeth. 4 2 7 The second Act of the Parliament of 1 585 was directed Act against the Jesuits, 1505. against 'Jesuits, seminary priests, and other such-like disobedient persons.' (1) All Jesuits, seminary and other Catholic priests, whether ordained within or with- out the kingdom, were commanded to quit the realm within forty days, under the penalty of high treason ; to aid or receive them was made felony ; and any person knowing a priest to be within the kingdom and not dis- closing the fact to a magistrate, was to be fined and imprisoned at the queen's pleasure. (2) All students in the Catholic seminaries who should not return within six months after proclamation to that effect, and within two days afterwards take the oath of supremacy, should be punished as traitors ; persons sending children abroad without licence were to forfeit 100/. for each offence, and to incur a praemunire if they sent money to any already at a seminary : the children so sent were disabled from inheriting any property from the sender. 1 So drastic a law as this would seem to have rendered any further penal legislation against; the Catholics un- necessary. The execution ; of RJary of Scotland on the Execution of 8th of Feb. 1586^7 relieved the queen from the only Scots', 1587" ° dangerous pretender to the throne, and deprived the Catholics of their last hope. The patriotism and loyalty SpanishArmada, displayed by them during the agonizing crisis of the A-D ' IS ' Armada would have been fitly acknowledged by some remission of penalties. But far from being relaxed, Act of 1593. the persecution became more rigorous ; s and yet one more statute was passed against ' popish recusants,' as persons convicted for non-attendance at church were now denominated, restraining them to particular places of residence, from which they were not to travel showing that 'if not capable of complete vindication it has at least encoun- tered a disproportioned censure,' see Hallam, Const. Hist. i. 158-162. 1 27 Eliz. c. 2. 2 The Catholic martyrs under Elizabeth have been reckoned at from 191 to 204. Hallam, Const. Hist. i. 163. Of these no suffered death between 1588 and 1603. Lingard, viii. 295. 428 The Tudor Period. [Ch. Persecution of the Protes- tant secretaries. more than five miles ; and providing that if they had not goods enough to pay the monthly fine of 20/. to which they were subject, they should abjure the realm, _ or suffer as felons. 1 The perils with which the throne of Elizabeth was constantly menaced by the perpetual conspiracy of Rome and Spain against her during the greater part of her reign, and the imputation of disloyalty necessarily attaching to all strict Catholics after the promulgation of the Pope's deposing bull, afforded some justification for the harsh persecution to which they were subjected. For the simultaneous persecution of the Protestant Nonconformists no such extenuation can be pleaded. ' The Puritans,' remarks Macaulay, ' even in the depths of the prisons to which Elizabeth had sent them, prayed, and with no simulated fervour, that she might be kept from the dagger of the assassin, that rebellion might be put down under her feet, and that her arms might be victorious by sea and land. One of the most stubborn of the stubborn sect, immediately after his hand had been lopped off for an offence into which he had been hurried by his intemperate zeal, waved his hat with the hand which was still left him, and shouted, " God save the queen ! " ' 2 The reformed Anglican Church, as professedly ' keep- ing the mean between the two extremes,' had from the first been distasteful to a large body of the more zealous Protestants, who were, eager to discard all rites and ceremonies savouring in any degree of the Romish 1 35 Eliz. u. 2. 2 Hist. Eng. i. 48. The person referred to was Thomas Stubbe, a lawyer, and brother-in-law of Cartwright the leader of the Puritans. In 1579, the queen, much to the alarm of her Protestant subjeets, entered into negotiations for a marriage with the Duke of Alencon (afterwards Duke of Anjou). Stubbe ventured to remonstrate in a pamphlet entitled the ' Discovery of a Gaping Gulph in which England will be swallowed up by the French Marriage. ' For this pamphlet which, ' very far from being a virulent libel, is written in a sensible manner and with unfeigned loyalty atid affection towards the queen,' he suffered the mutilation mentioned in the text. xii.] Elizabeth. 4 2 9 system of worship. During the Marian persecution many of these men sought refuge in Germany and Switzerland, where they imbibed Calvinistic doctrines and grew accustomed to a simple form of divine service and a democratic system of church government. Re- turning to England on the accession of Elizabeth, these exiles were dissatisfied at finding that far from proceed- ing in the path of reform, the queen artd her ministers were inclined somewhat to recede even from the point which had been attained under Edward VI. 1 In- se- ceding from the Roman Catholic Church the founders of the reformed faith had by no means intended to abolish the binding nature of authority in matters of religion, but merely to substitute one kind of authority for another. But the very act of secession was in its essence an assertion, however unintentional, of the right of private judgment. Having emancipated themselves by a great mental effort from the despotism of a church ' strong in immemorial antiquity and catholic consent,' the more ardent reformers were indignant at the attempt made to bind them anew by the authority of a church sprung from the exercise of that right of private judg- ment which it now sought to suppress. For several years the deviations of many of the clergy from the uniformity prescribed by statute were connived at by the bishops, several of whom sympathized with the Puritan party. But in 1565 the queen determined to put a stop to these irregularities. At her instigation Archbishop Parker published a. book of 'Advertisements' 1 The retention of vestments, instrumental music, and other features of the ancient church ceremonial, though, defensible on the grounds of decency and order, and as tending to conciliate the very large Romish party existing in the kingdom, was due in a large measure to the strong personal predilection of the queen. She manifested a strong leaning towards the forms of worship and even to some of the doctrines of the Romish Church, and resolutely opposed the marriage of the clergy. Although the marriage of bishops and priests was connived at, the queen would never consent to repeal the statute of Mary against it. Until the first year of James I. when this statute was explicitly abrogated, the offspring of clerical marriages were, in the eye of the law, illegitimate. Hallam, Const. Hist. i. 173. 430 The Tudor Period. [Ch. Puritan con- venticles. Attempt to sup- press them, i5°7- The Puritans attack Episco- pacy. Cartwright's ' Admonition to the Parlia- ment.' Archbishop Grindal sequestered from his see for declining to sup- to the clergy, containing strict regulations for their dis- cipline. Shortly afterwards, Sampson, Dean of Christ- church, and Humphrey, Regius Professor of Divinity and President of Magdalen College, Oxford, two of the most eminent Nonconformists, were deprived of their preferments ; and thirty-seven of the London clergy refusing to comply with the legal ceremonies, were sus- pended from their ministry and threatened with the punishment of deprivation. Abandoning the churches, the lay Puritans in London now began to form separate conventicles. In June, 1567, a congregation Of more than one hundred were seized at Plumbers' Hall, and about thirty of them subjected to a year's imprison- ment for their contumacy. 1 This was the first instance of actual punishment inflicted on Protestant dissenters. Hitherto the Puritans had restricted their opposition to the retention of what they deemed superstitious cere- monies in the church services ; but about the year 1570, attacks began to be made on the Episcopal system of church government. The principal leader in this new movement was Thomas Cartwright, Lady Margaret Professor of Divinity at Cambridge, and the reputed author of an ' Admonition to the Parliament,' published in 1572, which demanded in bold and contemptuous language a reform of the various abuses alleged to exist in the Established Church. The Puritans had many friends in the House of Commons, in the queen's council, and among the bishops. From time to time bills were introduced for abolishing various ecclesiastical rites and ceremonies, and even for abrogat- ing some of the thirty-nine articles, but, mainly through the determined opposition of the queen, they were inva- riably withdrawn. Archbishop Grindal, who succeeded Parker in February, 1575-6, was inclined to the views of the Puritans, and for refusing to comply with the command to suppress certain meetings of the more pre- 1 Lingard, viii. 73. xii.] Elizabeth. 43 l rise clergy for prayer and exposition of scripture, termed press * e s '. pr °" ' prophesyings,' was sequestered from his see for five years, and only escaped deprivation by his death in 1583. Whitgift, his successor in the primacy, was a Archbishop strenuous opponent of the Puritans. Under the provi- sion of the Act of Supremacy of 1559, authorizing the queen to execute her ecclesiastical jurisdiction by com- missioners appointed under the great seal, several tem- porary commissions had been successively appointed, mainly with a view to the coercion of the Roman Catholics. In 1583 the High Commission Court was HighCommis- permanently established with such extensive and for- established, mid able powers as to render it a very near approach to '5 8 3- the Spanish Inquisition. Of the forty-four commis- sioners who composed this tribunal, twelve were pre- lates ; and three, of whom one must be a bishop, formed a quorum. They were directed to inquire generally, as well by the oaths of twelve good and lawful men, as by witnesses, and all other means they could devise, of all matters affecting religion, such as heretical and schis- matic opinions, absence from church, seditious books, slanderous words and sayings, incests, adulteries, and other immoralities ; to examine all suspected persons on their oaths ; to tender the oath of supremacy according to the Act of Parliament, and to punish all who should refuse to appear or to obey their orders, by excommu- nication, fine and imprisonment. 1 Under these extensive powers, such of the clergy as were suspected of Puritanic tendencies, were summoned to take the famous oath ex officio. This was a technical name for a series of eccle- siastical interrogatories founded on the canon law, but utterly opposed to the maxims of the law of England, and which Lord Burleigh, who strongly disapproved of the proceeding, described as ' so curiously penned, so full of branches and circumstances, as he thought the 1 Neal, Hist. Puritans, 274 ; Strype, Annals, iii. 180. 432 The Tudor Period. [Ch. Martin Mar- Prelate pam- phlets. Puritan 'libel- lers ' punished with death. Udal,-i59i.. Barrow and Greenwood, 1593- Tenry, 1593. inquisitors of Spain used not so many questions to com- prehend and to trap their preys.' 1 Instead of producing conformity, the rigorous proceed- ings of the High Commission Court only served to exasperate the sectaries still more against the hierarchy. Declamatory and scurrilous pamphlets directed against the bishops, of which the most notable was a series pub- lished under the pseudonym of Martin Mar-Prelate, rapidly issued from the press, and obtained a. wide popularity. An Act had been passed in 158 1, levelled at the writings of the seminary priests, by which it was made a capital felony ' to write, print, or set forth any manner of book, rhyme, ballad, letter or writing, containing any false or seditious matter to the defamation of the queen's majesty, or the encouraging of insurrection or rebellion within the realm.' 2 By a strained construc- tion of the judges it was held that the puritanical 'libels,' as they were termed, tending to subvert the constitution of the church and the supremacy of the queen, were seditious, and punishable under the Act. Of the most conspicuous victims, Udal, a Puritan minister, was convicted for an alleged libel on the bishops in 1591 and sentenced to death. The extreme penalty was remitted, on the intercession of Whitgift, but the prisoner soon died from the severity of his confinement. In 1593, Henry Barrow, a lawyer, and John Greenwood, a clergyman, were convicted and executed for writing ' sundry seditious books tend- ing to the slander of the queen and ■ state ; ' and the same year, Henry Penry, a young Welsh clergyman who was strongly suspected of being one of the authors of the Martin Mar- Prelate tracts, was tried for ' seditious, words and rumours against the queen.' Although the only evidence against him consisted of certain uncon- Strype's Whitgift, 157.- 2 23 Eliz. c. 2. Xii.] • Elizabeth. 433 nected sentences discovered among his private papers, and which had never been communicated to any other person, he was found guilty, and executed with great haste and cruelty. 1 The position of ecclesiastical affairs in Scotland was influence of tCOlCII CCClCSlRS* at once an encouragement to the English Puritans to tical affairs on persevere in their efforts and an incentive to Elizabeth En S land - and her councillors to enforce strict uniformity. The Scottish reformed church, as established in 1560, though retaining a limited form of episcopacy, approached very nearly to the system of church polity advocated by the Puritans, and in 1592 episcopacy was abolished al' gether. About the same time a serious attempt was made, under the leadership of Cartwright, to set up the Presbyterian system in England. Cartwright and nine a.d. 1591. of his associates were summoned before the High Com- mission Court, and, refusing to answer interrogatories under the oath ex officio, were committed to prison. In the Star Chamber — a tribunal possessing more ex- tended powers of punishment — they still persisted in their refusal to incriminate themselves, as being contrary to the law of the land. Although it was contemplated at one time to send them into perpetual banishment, more moderate counsels prevailed, and they were ultimately liberated on bail, after satisfying the court on the question of the queen's supremacy. The favour with which the Puritans were regarded in the queen's council, and especially in the House of Commons, had hitherto prevented any special legislation against them. But in 1593, Parliament Act of 1593 was induced to pass an Act subjecting Protestant non- ^'n Protes " conformists to - penalties ' similar to those already im- formists. posed upon Popish recusants. All persons above the age of sixteen denying or impugning the queen's supremacy, or obstinately refusing to come to the 1 Lingard, viii. 304. 434 The Tudor Period. [Ch. Political results of the persecu- tion of the 1 uritans. Civil govern- ment of Elizabeth. church established by law, or attending 'any assem- blies, conventicles, or meetings, under colour or pretence of the exercise of religion,' were to be imprisoned until they should openly conform. Failing to conform within three months they were to abjure the realm, and for refusal to do so, or for returning after abjuration without licence, the punishment was, to suffer death as a felon. 1 The persecuting policy adopted by Elizabeth against the Puritans had most important political results. ' It found them a sect ; it made them a faction. To their hatred of the Church was now added hatred of the Crown. The two sentiments were intermingled; and each embittered the other.' 2 During the closing years of Elizabeth's reign, and throughout the Stewart period, the firmest champions of constitutional liberty against the arbitrary exercise of royal power were drawn from the Puritan ranks. 3 The ecclesiastical despotism of Elizabeth was, at least, a legal despotism, based on the extraordinary powers which Parliament in its wisdom had seen fit to confer upon the Crown. Religious liberty indeed was as yet totally unrecognized by the constitution, either in theory or in practice: 4 for the Church was still re- garded as the whole nation in its religious aspect, 1 35 Eliz. c. I, ' An Act to retain the Queen's majesty's subjects in their due obedience.' 2 Macaulay, Hist. Eng. i. 47. 3 'The slavish Parliament of Henry VIII. grew into the murmuring Parliament of Queen Elizabeth, the mutinous Parliament of James I., and the rebellious Parliament of Charles I. The steps were many, but the energy was one — the growth of the English middle-class using that word in its most inclusive sense, and its animation under the influence of Protest- antism. No one, I think, can doubt that Lord Macaulay is right in saying that political causes would not alone have then provoked such a resistance to the sovereign, unless propelled by religious theory. . -. Gradually, a strong Evangelic spirit (as we should now speak), and a still stronger anti- Papal spirit, entered into the middle sort of Englishmen, and added to that force, fibre, and substance which they have never wanted, an ideal warmth and fervour which they have almost always wanted.' Bagehot, Eng. Const. 282. 4 'At the end of the 1 6th century the simple proposition, that men for holding or declaring heterodox opinions in religion should not be burned alive or otherwise put to death, was itself little else than a sort of hetero- xii.] Elizabeth. 435 though in fact the Church and the nation were ceasing Its despotic to be co-extensive. But the despotic acts of Eliza- character - beth's civil government, though there was some excuse for them in the perils and dangers by Which she was surrounded, and in the example of her immediate pre- decessors of the Tudor dynasty, were undoubtedly illegal, and known to be so by those who nevertheless submitted to them. Protests were from time to time uttered in Parliament, at first feebly and ineffectually, but gradually becoming more vigorous, until by the end of her reign the opposition in the House of Commons was suffi- ciently strong and organized to compel the queen and her ministers to defer to its wishes. The administration of justice in all trials partaking in political trials any degree of a political nature was characterized by unjustly con- .... . . r , , . ducted. that iniquitous straining of law and evidence in favour of the Crown, which was the common feature of all the Tudor reigns, and attained a still more disgraceful noto- riety under the Stewarts. Hallam has denounced in eloquent language 'those glaring transgressions of natural as well as positive law that rendered our courts of justice, in cases of treason, little better than the caverns of mur- derers. Whoever was arraigned at their bar was almost certain to meet a virulent prosecutor, a judge hardly distinguishable from the prosecutor except by his ermine, and a passive pusillanimous jury.' 1 The trials of Stubbe, of Penry, and of Udal, already referred to, are samples of the kind of justice meted out by the legal tribunals to all who were obnoxious to the court. 3 But besides the doxy ; and though many privately must have been persuaded of its truth, the Protestant churches were as far from acknowledging it as that of Rome. No one had yet pretended to assert the general right of religious worship, which, in fact, was rarely or never conceded to the Romanists in a Protes- tant country, though the Huguenots shed oceans of blood to secure the same privilege for themselves.' Hallam, Hist, of Literature, i. 559. 'Even at the close of the 1 7th century, Bossuet was able to maintain that the right of the civil magistrate to punish religious error was one of the points on which both churches agreed ; and he added that he only knew two bodies of Christians who denied it. They were the Socinians and the Anabaptists.' Lecky, Rationalism in Europe, ii. 59. 1 Const. Hist. i. 231. 2 Supi-a, pp. 428, 432. F F 2 436 The Tudor Period. [Ch. "ordinary judicial tribunals there existed the two courts of High Commission and Star Chamber, respectively taking cognizance of all offences against the ecclesiastical supremacy and the royal prerogative of the sovereign ; Courts-Martial, special courts of commissioners occasionally appointed for the trial of offences, and the courts-martial by which the queen frequently superseded the operation of the common law. During a period of actual rebellion all governments have been wont to exercise the right of suspending the ordinary course of justice in favour of the more summary and awe-inspiring military tribunal. A royal proclamation, issued on the ist of July, 1588, in the crisis of the Spanish invasion, directing that all persons importing or dispersing papal bulls, or disloyal or traitorous books, should be instantly proceeded against and punished by martial law, was fairly justified, however unconstitutional in character, by the extraordinary perils of the time. But' the hasty and arbitrary temper of Eliza- beth led her to have recourse to this summary process when there existed no justification in the circumstances of the time. In 1573, one Peter Burchell, a Puritan, who was probably insane, attempted to murder the famous sea-captain John Hawkins, in mistake for Sir Christopher Hatton, the captain of the queen's guard. Elizabeth wished to have him immediately executed by martial law, and was with great difficulty persuaded by her council to allow the civil jurisdiction to take its ordinary course. 1 A much more violent and illegal pro- ceeding took place in July, 1595. A street broil, devoid of all political character, having taken place one Sunday evening, between some riotous apprentices and the warders of the Tower, the queen issued a commission to Sir Thomas Wyllford, appointing him provost-marshal, with power to punish by martial law. He was em- 1 Strype, Ann. ii. 288. While imprisoned in the Tower, Burchell murdered one of his keepers, for which offence he was hanged in due course oi law. xii.] Elizabeth. 43 7 powered ' to repair to all common highways near to the city which any vagrant persons do haunt, and with the assistance of justices and constables, to apprehend all such vagrant and suspected persons, and them to deliver to the said justices, by them to be committed and ex- amined of the causes of their wandering, and finding them notoriously culpable in their unlawful manner of life, as incorrigible, and so certified by the said justices, to cause to be executed upon the gallows or gibbet some of them that are so found most notorious and incor- rigible offenders.' 1 Another intolerable grievance by which the people ™egal commit- were oppressed under Elizabeth was the discretionary power which the queen, and each member of her privy council, arrogated to themselves of committing to prison all persons who were on any account obnoxious to the court. Every obstacle was thrown in the way of a pri- soner suing out a writ of habeas corpus ; and even when liberty had been obtained by order of a court of law, the person so discharged was frequently re-committed by order of the council, while the officers of the court were imprisoned for having executed their duty. So flagrant were these abuses that, in 1591, the judges ventured to Remonstance oi present a joint remonstrance to Sir Christopher Hatton, against them, lord chancellor, Sir William Cecil, and Lord Burleigh, the treasurer. They desired that ' order may be taken that her highness's subjects may not be committed or de- tained in prison, by commandment of any nobleman or councillor, against the laws of the realm, to the grievous charges and oppression of her majesty's said subjects,' ' For divers,' the remonstrance continues, ' have been imprisoned for suing ordinary actions and suits at the common law, until they will leave the same, or against their wills put their matter to order, although sometime 1 Rymer, xvi. .279. Five of the apprentices were executed as traitors on Tower Hill, July 24. 438 The Tudor Period. [Ch, it be after judgment and accusation. 1 Item: Others have been committed and detained in prison upon such commandment against the law ; and upon the queen's writ in that behalf, no cause sufficient hath been certi- fied or returned. Item : Some of the parties so com- mitted and detained in prison after they have, by the queen's writ, been lawfully discharged in court, have been eftsoones recommitted to prison in secret places, and not in common and ordinary known prisons, as the Marshalsea, Fleet, King's- Bench, Gatehouse, nor the custodie of any sheriff, so as, upon complaint made for their delivery, the queen's court cannot learn to whom to award her majesty's writ, without which justice cannot be done. Item : Divers Serjeants of London and officers have been many times committed to prison for lawful execution of her majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great charges and oppression, whereby they are put in such fear as they dare not execute the queen's process. Item: Divers have been sent for by pursuivants for private causes, some of them dwelling far distant from London, and com- pelled to pay to the pursuivants great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or executions, for remedie, in which behalf we are almost daily called upon to minister justice according to law, whereunto we are bound by our office and oath.' Thus far the remonstrance of the judges, having regard to the fact that they were removeable from office at the queen's pleasure, is a remarkably outspoken vindica- tion of the right of personal freedom. But it concludes 1 In a patent, dated May 10, 1591, Elizabeth ' of our prerogative royal which we will not have argued nor brought in question, ' grants to Patrick Lord Dunsany, an Irish nobleman, and John Mathewe, a gentleman gf Londcfn, protection from all suits for debt for both person and property ; and directs the judges of the different courts to stay any suit which might be commenced against them, ' without other warrant than the sight of these our letters patent or the inrolment thereof.' Annals of England, ii. 260. xii.] Elizabeth. 439 rather tamely, by leaving to the executive government a great and dangerous latitude wholly inconsistent with the chartered liberties of the people. 'Whereas,' the judges continue, ' it pleased your lordships to will -divers of us to set down when a prisoner sent to custody by her majesty, her council, or some one or two of them, is to be detained in prison and not to be delivered by her majesty's courts or judges : We think that, if any person shall be committed by her majesty's special commandment, or by order from the council-board, or for treason touch- ing her majesty's person, which causes being generally returned into any court, is good cause for the same court to leave the person committed in custody ! x The royal proclamations put forth under Elizabeth Illegal pro- seem to show that the Crown then claimed not merely a kind of supplemental right of legislation, to perfect and carry out what the spirit of existing laws might require, but also ' a paramount supremacy, called sometimes the king's absolute or sovereign power, which sanctioned com- mands beyond the legal prerogative, for the sake of public safety, whenever the council might judge that to be in hazard.' 3 New offences, unknown to the common law, and affecting the persons and property of whole classes of the queen's subjects, were from time to time . constituted by royal proclamation alone, and made punishable with fine and imprisonment. 3 The press was placed under a strict censorship; and in 1585, at the Restrictions on instigation of Archbishop Whitgift, the trades of printing book^sflltng. and book-selling were subjected to most stringent regu- lations by an ordinance of the Star Chamber, published 1 Lansdowne MSS. Iviii. 87, Brit. Mus., cited in Hallam, Const. Hist.i. 235. 2 Hallam, Const. Hist. i. 237. 3 Hume goes so far as to assert, referring to the reign of Elizabeth, that ' in reality the Crown possessed the full legislative power by means of proclamations, which might affect any matter even of the greatest import- ance, and which the Star Chamber took care to see more vigorously executed than the laws themselves. The motives for these proclamations were sometimes frivolous and even ridiculous.' Hist. Eng. v. 463. 440 The Tudor Period. [Ch, to restrain the 'enormities and abuses of disorderly- persons professing the art of printing and selling books.' 1 Economy of The frugality of Elizabeth, and the sums which she received from the fines of recusants and from the grant of monopolies for the exclusive sale of commodities, enabled her to avoid frequent applications to Parliament for money. This greatly increased her popularity, and caused subsidies to be granted, when applied for, with both Revenue occa- liberality and readiness. She indeed occasionally had anticipated by recourse to the ancient practice of forced loans from the means of forced wealthy, notwithstanding the statute of Richard III. against them. But she is honourably distinguished from which were her predecessftrs by the moderation and tact with- which repaid^ y these loans were exacted and by her punctuality and speed in repayment. 2 Lord Burleigh's Very much of the credit, and a fair share of the administration. di um , attaching to the government of Elizabeth, are of right due, not to her personally, but to the policy of her ministers, among whom Sir William Cecil, Lord Burleigh, stands pre-eminent. Under his ad- ministration England, it has been said, ' was managed as if it had been the household and estate of a nobleman under a strict and prying steward. It was a main part . of his system to keep alive in the English gentry a per- suasion that his eye was upon them. No minister was ever more exempt from that false security which is the usual weakness of a court. His failing was rather a bias 1 Strype, Whitgift, 222, Appendix, 94. 2 ' In the time of Queen Elizabeth, ' said Mr. Justice Hutton in his judgment in the case of ship money, ' in the end of her reign, whether through covetousness or by reason of the wars which came upon her, I know not by what council, she desired benevolence ; the statute of 2d Richard III. was pressed, yet it went so far that by commission and direction money was gathered in every Inn of Court ; and I myself, for my part, paid twenty shillings. 'But when the Queen was informed by her judges that this kind of proceeding was against law, she gave directions to pay all such sums as were collected back ; and so I (as all the rest of our house, and as I think of other houses too) had my twenty shillings repaid me again ; and privy councillors were sent down to all parts, to tell them that it was for the defence of the realm, and it should be repaid them again.' State Trials, iii. 1 199. XII.] Elizabeth. 441 towards suspicion and timidity; there were times, at least, in which his strength of mind seems to have almost deserted him through a sense of the perils of his sovereign and country. But those perils appear less to us, who know how the vessel outrode them, than they could do to one harassed by continual informations of those numerous spies whom he employed both at home and abroad. The one word of Burleigh's policy was preven- tion ; and this was dictated by a consciousness of want- ing an armed force or money to support it, as well as by some uncertainty as to the public spirit in respect at least of religion. But a government that directs its chief attention to prevent offences against itself is in its very nature incompatible with that absence of restraint, that immunity from suspicion, in which civil liberty, as a tangible possession, may be said to consist. It appears probable that Elizabeth's administration carried too far, even as a matter of policy, this precautionary system upon which they founded the penal code against popery ; and we may surely point to a contrast. very advantageous to our modern constitution in the lenient treatment which the Jacobite faction experienced from the princes of the House of Hanover. She reigned, however, in a period of real difficulty and danger. At such seasons few ministers will abstain from arbitrary actions, except those who are not strong enough -to practise them.' 1 Throughout the reign of Elizabeth the predominant Puritan ascend- party in the House of Commons was composed of Housed members more or less imbued with the Puritan doctrines. Commons. Amongst them were many bold and active spirits, well- read in constitutional lore, who gradually organized an opposition to the despotism of the Crown, and on several occasions successfully resisted all the efforts of the to present an address to the queen on the same subject, to which she replied, through the lord keeper, that she 'hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, and the principal and head pearl in her crown and diadem ; but would rather leave that to her disposition, promising to examine all patents and to abide the touchstone of the law.' a In spite of these fair words, the abuse, far from being abated, rose to a still greater height. So numerous were the articles subject to monopoly, that when the list of them was read over in the House in 1 60 1, an indignant member exclaimed, ' Is not bread amongst them ? Nay, if no remedy is found for these, bread will be there before the next Parliament.' 3 A bill ' for the explanation of the common law in certain cases of letters-patent ' was intro- duced by Mr. Laurence Hyde, and was debated with unprecedented warmth for four days. The ministers and courtiers, who endeavoured to support the prerogative, were overborne by a torrent of indignant and menacing eloquence. The populace openly cursed the monopolies, and declared that the prerogative should not be suffered to touch the old liberties of England. Seeing that resistance was no longer politic, or even possible, Elizabeth, with admirable tact, sent a message to the House, that 'understanding that divers patents which she had granted had been grievous to her subjects, some should be presently repealed, some superseded, and 1 D'Ewes, 159. 2 D'Ewes, 547. 3 Pari. Hist. iv. 462. G G 45o The Tudor Period. [Ch none put in execution but such as .should first have j trial, according to the law, for the good of the people. Robert Cecil, the secretary, added the more direct assur- ance that all existing patents should be revoked, and nc others granted for the future. Overjoyed at their victory the Commons waited upon the queen with an address oi thanks; to which she replied in an affectionate and even apologetic tone. ' Never since I was a queen,' she told them, ' did I put my pen to any grant but upon pretext and semblance made to me, that it was both good and beneficial to the subjects in general, though a private profit to some of my ancient servants who had deserved well. . . . Never thought was cherished in my heart that tended not to my people's good.' x Act for relief of the poor, A.D. 1601. Relief of the poor in ancient times. Tithes. Indiscriminate alms-giving of the clergy. 1 Pari. Hist. iv. 480. Poor Laws. — The year 1601 is remarkable not only for the victory of the Commons on the question of monopolies but also for the passing of the great statute, 43 Eliz. c. 2, 'An Act for the Relief of the Poor,' which is the foundation of our modern Poor Law. In pre-Norman times the State did not directly relieve poverty, but by enforcing by legal sanctions the payment of tithes to the Church, it may be said to have indirectly provided for the relief of the poor. In their incep- tion tithes were voluntary offerings of the people, made under the belief — carefully inculcated by the clergy— of the religious duty of every Christian to bestow on God's service a tenth part of his goods. ' But it was not possible or desirable,' observes Professor Stubbs (Const. Hist. i. 228), ' to enforce this duty by spiritual penalties : nor was the actual expenditure determined except by custom, or by the will of the bishop, who usually divided it between the church, the clergy, and the poor. . . The recognition of the legal obligation of tithes dates from the eighth century, both on the continent and in England. In A.D. 779 Charles the Great ordained that every one should pay tithe, and that the proceeds -should be disposed of by the bishop : and in A.D. 787 it was made imperative by the legatine councils held in England, which being attended and Confirmed by the kings and ealdormen had the authority of Witenagemots. From that time it was enforced by not unfrequent legislation : the cathedral church being the normal recipient, and the bishop the distributor. ' By a law of ^Ethelred II. the tithes were directed to be applied, in accordance with the ancient usage, one-third to church fabrics, one-third to the clergy and the remain- ing third to the poor. It was not until the council held in A.D. 1200 that the principle of the prior claim of the parochial clergy on tithes was summarily stated (Stubbs, Const. Hist. i. 229). In the Mirror of Justice (c. 1, s. 3) it is said to be the right of the poor to be ' sustained by parsons, rectors of the church, and the parishioners, so that none of them die for default of sustenance,' but the duty was one of imperfect obligation, there being no compulsory method of enforcing it. The clergy, however, more especially the monastic bodies, who, as impropriators of parochial benefices, had managed to secure a large portion of tithes, by no means neglected this duty; but unfortunately 'the blind eleemosynary spirit' XII.] Elizabeth. 451 The reviving independence of the House of Commons Privileges of under the Tudor sovereigns, especially during the reign vindicated. which led them to practise and inculcate indiscriminate alms-giving had a direct tendency to foster ' that vagabond mendicity which unceasing and very severe statutes were enacted to repress.' By Edward III.'s Statute of Labourers {supra, p. 275) it was forbidden to give alms, under colour of charity, to the able-bodied poor ; every man having no means of his own was to accept service under pain of imprisonment. By the 12 Richard II. begging was permitted, subject to regulations, — certificates might be given to poor men and women authorizing them to beg within specified local- limits. Under Henry VIII. the same policy with regard to the poor was maintained, but with a great increase of severity. By the 22 Hen. VIII., 1;. '12, all beggars and vagrants — as well aged and impotent' as able-bodied — were ordered to repair to the place of their birth. Justices of the peace were authorized to give licences to 'aged poor and impotent persons' to beg within certain prescribed districts, but licensed beggars transgressing their limits, and all unlicensed beggars, were to be twice whipped and set in the pillory, and, on repeating the offence, to lose their ears. By the 27 Hen. VIII. c. 25, all cities, counties, towns, and parishes were directed to maintain their aged and impotent poor by voluntary alms, and to set the able-bodied to work ; but ' valiant and sturdy beggars,' refusing to work, were to be punished by whipping for the first offence, loss of an ear for the second, and hanging for the third. By the same Act indiscriminate alms- giving was forbidden on pain of forfeiting ten times the value of the gift ; but an offertory was to be made in every parish church on Sundays, to which the clergy were to exhort the people to contribute. By the suppression of the monasteries the chief support of vagrant mendicity was withdrawn ; and under Edw. VI. and Elizabeth numerous statutes were passed enforcing with greater stringency and severity the provisions already in existence for the relief of the aged and impotent, and the punishment of the ' valiant and sturdy ' poor. At length in 1601, the Act of 43 Eliz. introduced regular local taxa- tion for the relief of the poor. Every parish was to be responsible for the maintenance of its own poor out of a rate to be levied on the landed property of the parish by ' overseers of the poor,' consisting of the church- wardens, and from two to four substantial householders nominated yearly by two justices of the neighbourhood. The rate was to be applied by the overseers (1) in providing work for all able-bodied persons who had no means to maintain themselves, and (2) in relieving the lame, impotent, old, blind, and such other persons as were poor and not able to work, and who had no parents, grand -parents, or children competent to maintain them. The Act of 43 Eliz. involved two principles : (I) the relief of the impotent and aged, and the providing work for the able-bodied, poor ; (2) that this should be done parochially, each parish providing for its own poor. It had already been directed by certain earlier statutes that paupers unable or unwilling to work, should be compellable to remain in the particular parishes where they were settled {i.e. where they were born, or had resided for a certain period, varying from 1 to 3 years). But there was nothing to prevent able-bodied and industrious paupers from resorting to any parish that they pleased for employment ; and the irregular and im- perfect manner in which the Act of Elizabeth was for years carried out in many parishes caused a migration of poor into those which were better regu- lated. To relieve the latter from this unfair burthen an Act was passed in 1662 (14 Car. II. c. 12) providing that within 40 days after the coming of any person to settle in any parish, he might, on complaint of the church- G G 2 Edw. 7/1.' s statute of Labourers : Alms-giving to the able-bodied forbidden. Begging regu- lated by statute 1 2 Richard II. Henry VIII. 's poor laws. 22 Henrv VIII. ». 12. 27 Henry VIII. c.2S. Suppression of the monasteries. Statute 43 Eliz. c. 2, a.d. 1601, the basis of modern poor- laws. Law of Settlement. 45 2 The Tudor Period. [Ch Administration of poor-relief . Statute 9 Geo. I. . 7. A.D. 1723. Gilberts Act, 22 Geo. III. <.. 83. A.D. 1782. Select Vestry Act, 59 Geo. III. c. 12. A.D. 1819. Ignorant administration of the poor-law : its disastrous effects. of Elizabeth, is further evidenced in the care with which the peculiar privileges and immunities of Parliament were from time to time vindicated. The cases of Ferrers in 1543, and of Smalley in 1575, (relating to the free- wardens or overseers that his circumstances were such that he was likely to become a charge upon the parish, be removed, by the warrant of two justices, back to the parish in which he was born, or had been last settled for at least 40 days. Thus originated the law of settlement, which has been the subject of a vast amount of subsequent legislation and still retains a close connexion with the relief of the poor. (On the existing law of settlement, see Stephen, Commentaries, iii. 175-178.) The relief of the poor in all its various details continued for more than a century under the uncontrolled management of the overseers, who, in too many instances, proved quite unequal to the duty of effectively working the Act. In 1723, by 9 Geo. I. c. 7, churchwardens and overseers of parishes were empowered, with the consent of the vestry, to purchase or hire houses, or to contract with any person, for the lodging and employment of the poor ; three small parishes were permitted to unite in establishing a single workhouse ; and it was declared that all persons who declined to submit to the lodging provided for them should not be entitled to any relief. In 1782 Mr. Davies Gilbert's Act (22 Geo. III. c. 83) authorized parishes in which the adoption of the Act should be agreed upon by two-thirds in number and value of the owners and occupiers, to appoint guardians to act in place of overseers of the poor ; and also to enter into voluntary unions with each other for the accommodation, employment, and maintenance of their paupers. In 1819 the Act 59 Geo. III. c. 12, empowered the vestry of any parish to commit the management of its poor to a committee of substantial householders, termed a select vestry, to whose directions the overseers should be bound to conform. Both the Gilbert Act and the Select Vestry Act being permissive only and not compulsory, the relief of the poor in the great majority of parishes continued to be administered by the overseers. Under their ignorant administration the wise and simple provisions of the law for the relief of the poor gradually assumed the proportions of a gigantic national evil. 'The industrial population of the whole country,' observes Sir Erskine May (Const. Hist. iii. 405), 'was being rapidly reduced to pauperism, while property was threatened with no distant ruin. The system which was working this mischief assumed to be founded upon benevolence : but no evil genius could have designed a scheme of greater malignity for the corruption of the human race. The fund intended for the relief of want and sickness, — of age and impotence, ■ — was recklessly distributed to all who begged a share. Everyone was taught to look to the parish, and not to his own honest industry, for support. The idle clown, without work, fared as well as the industrious labourer who toiled from morn till night. The shameless slut, with half a dozen children, the progeny of many fathers, was provided for as liberally as the destitute widow and her orphans. But worse than this, independent labourers were tempted and seduced into the degraded ranks of pauperism, by payments freely made in aid of wages. Cottage rents were paid, and allowances given according to the number of a family. Hence thrift, self-denial, and honest independence were discouraged. The manly farm labourer, who scorned to ask for alms, found his own wages artificially lowered, while improvidence was cherished and rewarded by the parish. He could barely live, without incumbrance : but boys and girls were hastening to church,— without a. thought of the XII.] Elizabeth. 453 dom of members and their servants from arrest), and the cases of Nowell in 1553, .and of the county of Norfolk in 1586, (as to the right of the House to deter- mine contested elections,) have been already considered morrow, — and rearing new broods of paupers, to be maintained by the overseer. Who can wonder that labourers were rapidly sinking into pauperism, without pride or self-respect? But the evil did not even rest here. Paupers were actually driving other labourers out of employment, — that labour being preferred which was partly paid out of rates, to which employers were forced to contribute. As the cost of pauperism, thus encouraged, was increasing, the poorer ratepayers were themselves reduced to poverty. The soil was ill-cultivated by pauper labour, and its rental consumed by parish rates. In a period of fifty years, the poor-rates were quadrupled; and had reached, in 1833, the enormous amount of j£8, 600,000. In many parishes they were approaching the annual value of the land itself.' At length, in 1834, on the recommendation of a royal commission appointed at the request of Parliament in the preceding year, to inquire into the state and administration of the laws relating to the poor, was passed the important 'Toor Law Amendment Act' (4 & 5 Will TV. c. 761. 'The principle was that of the Act of Elizabeth, to confine relief to destitution ; and its object to distinguish between want and imposture. This test was to be found in the workhouse. Hitherto pauperism had been generally relieved at home, the parish workhouse being the refuge for the aged, for orphans and others, whom it suited better than out-door relief. Now out-door relief was to be withdrawn altogether from the able-bodied, whose wants were to be tested by their willingness to enter the workhouse. This experiment had already been successfully tried in a few well-ordered parishes, and was now generally adopted. But instead of continuing ill- regulated parish workhouses, several parishes were united, and union workhouses established common to them all. The local administration of the poor was placed under elected boards of guardians ; and its general superintendence under a central Board of Commissioners in London.' (May, Const Hist. iii. 407.) The 'Poor Law Commissioners' were appointed for five years, but the duration of the Commission was afterwards extended from time to time till 1847, when, by statute 10 & 11 Vict c. 109, it was superseded by a new Commission, afterwards known as the ' Poor Law Board,' consisting of the Lord President of the Council, Lord Privy Seal, Home Secretary, and Chancellor of the Exchequer for the time being, and of such other persons as the Crown might appoint. In 1871, by statute 34 & 35 Vict. c. 70, the ' Poor Law Board ' was abolished and its powers transferred to a new body called the ' Local Government Board ' (in which was concentrated the supervision of the laws relating to the public health, the relief of the poor, and local government), consisting of a President, appointed by and holding office during the pleasure of the Crown, of the President of the Council, all the principal Secretaries of State, the Lord Privy Seal, and the Chancellor of the Exchequer. Within three years from the passing of the Act of 1834 its beneficial effects were manifested in a reduction, to the extent of three millions, in the annual expenditure for the relief of the poor. Some of the provisions of the Act have since been partially relaxed ; and the strict and universal application of the workhouse test can hardly be hoped for, until supplemented by an efficient organization of private charity for the relief of industrious and deserving persons in temporary difficulties, who, by timely aid, may be kept from falling into the ranks of paupers. Poor Law Amendment Act, 1834. The ■workhouse test for able- bodied poor. ' Poor law Commissioners, ' 1834. ' Poor Law Board? 1847. 'Local Government Board,' 1 87 1. 454 The Tudor Period. [Ch. Storie - s case, a.d. i S47-8- Copley's case, A.D. 1557-8. in treating of the three principal privileges of the Com- mons. 1 But there was another species of privilege, relating to the internal discipline of the House, — the power to punish offences against established order com- mitted by any of themselves — which though apparently at all times an essential attribute of any assembly enjoying the right of free debate, first begins to attract attention during the Tudor period. The Journal of the Commons records, under the date 21st January, 1547-8, that John Storie, one of the bur- gesses, was ordered to be committed to the custody of the serjeant of the House. On the next day but one, articles of accusation were read against him, and on the following day the Commons, of their single authority, committed him to the Tower. The exact nature of his offence is not stated, but he is known to have been a zealous opponent of the Reformation, and would appear to have made use of language disrespectful alike to the House and to the government of the Protector Somerset. On the 20th of March Storie sent a letter from the Tower with a full submission ; whereupon the Commons made an order ' that the king's privy council in the Nether House shall humbly declare unto the Lord Protector's grace that the resolution of the House is, that Mr. Storie be enlarged, and at liberty, out of prison; and to require the "King's Majesty to forgive him his offences in this case towards his Majesty and his council.' Under Queen Mary, Storie again fell under the censure of the House for disrespect to the Speaker ; and in the same reign Mr. Copley, another member, was committed by the House to the custody of their serjeant for disrespectful words uttered of her majesty. With less regard for their privileges, they directed the Speaker to declare this offence to the queen, and solicit her mercy for the offender. 8 1 Supra, pp. 301-303, 308. 3 Hallam, Const. Hist. i. 272. xii.] Elizabeth. 455 The next case is more important, constituting as it j^ 11 '^ 6 ' does the leading precedent, so far as records show, for Expulsion of a the power of the House to expel a member. Arthur memter - Hall, a burgess for Grantham, was charged with having, on account of certain proceedings of the last session of Parliament, wherein he was privately interested, caused to be published a book, *not only reproaching some particular good members of the House, but also very much slanderous and derogatory to its general authority power and state, and prejudicial to the validity of its proceedings in making and establishing of laws.' He had previously incurred the displeasure of the Commons in 1572, when he was ordered to appear at the bar 'to answer for sundry lewd speeches, used as well in the House as elsewhere.' On another occasion he had been ' charged with seven several articles, but, having humbly submitted himself to the House and confessed his folly, was released with a good exhortation from the Speaker.' Regarded now as incorrigible, he was expelled the House, fined 500 marks, and sent to the Tower, where he remained until the dissolution of Parliament. 1 The right of expulsion was again exercised by the Dr. Parry's Commons in 1585, against Dr. Parry, for denouncing as case ' A " D- is8s * cruel and bloody the bill for inflicting the penalty of death on Jesuits and seminary priests ; and so tenacious were they of their dignity, that in the following year they caused a poor currier named Bland, on account of Bland's case, contemptuous words uttered against the House, to be A ' D ' is86- brought to their bar, whence he was discharged only on making submission and paying a fine of twenty shillings. 2 It was in the reign of Elizabeth also, that the earliest Bribery at precedent occurs for the punishment of bribery at elec- Actions tions. In 1571, the House inflicted a fine upon the Encase, . A.D. 1571. ' 1 D'Ewes, 291 ; Hallam, Const. Hist. i. 273. In addition to the mis- conduct mentioned in the text, Hall was suspected of being privy to the fraud committed by his servant Smalley in 1575 : see suira p 202 2 D'Ewes, 366 ; Hallam, Const. Hist. i. 274. ' ' 3 J " j6 The Tudor Period. [Ch. borough of Westbury for receiving a bribe of four pounds from Thomas Long, the member returned, who is described as 'a very simple man and of small capacity to serve in that place.' The mayor was also ordered to refund the bribe : but Long, the briber, does not appear to have been expelled or otherwise punished. 1 amnions assert i n \tn* an attempt was made by the Lords to en- eir right to , , ,-f .... . . iginate money croach upon the Commons privilege of originating lis. a.d. 1593. mone y bills. A message was sent from the Upper House referring to the queen's want of a supply, and requesting that a committee of conference might be appointed. This was acceded to ; but it soon appeared that there was a difference of opinion between the Upper and Lower Houses. Sir Robert Cecil was instructed to report from the committee that the Lords would not con- sent to grant anything less than three subsidies, while the Commons wished to give only two. Hereupon Mr. Francis Bacon (afterwards the celebrated chancellor) rose, and while disclaiming any wish to refuse a subsidy, ' disliked that this House should join with the Upper House in granting it. For the custom and privilege of this House hath always been, first to make offer of the subsidies from hence, then to the Upper House ; except it were that they present a bill unto this House, with desire of our assent thereto, and then to send it up again.' The court party tried hard to bring about another conference with the Lords, but their motion to that effect was lost on a division by 217 to 128. 3 :he constitution Notwithstanding the arbitrary practice of Elizabeth's luenfly violated government, and the submissive and adulatory strain in a practice, which she was always addressed by the Commons, it is heoretically evident that the theory of the constitution as a monarchy atact - greatly limited by law, remained intact. The facts already cited might be regarded as sufficient proof of this 1 Commons' Journals, p. 88. 2 P'Ewes, 486 ; Hallam, Const. Hist. i. 276. xii.] Elizabeth. 457 assertion, but it is supported by still further evidence of much weight. In his ' Harborowe of True and Faithful Subjects,' Aylmer's published in 1559 by Aylmer, afterwards Bishop of f True and London, in answer to John Knox's celebrated treatise Faithful Sub- jects. A.D. 1559. against female monarchy entitled ' A Blast of the Trumpet against the Monstrous Regiment of Women,' 1 the author thus enumerates his reasons why, in England, ' it was not so dangerous a matter to have a woman ruler as men take it to be : ' ' First, it is not' she that ruleth, but the laws, the executors whereof be her judges appointed by her, her justices, and such other officers. Secondly, she maketh no statutes or laws, but the honourable Court of Parliament ; she breaketh none, but it must be she and they together, or else not. If, on the other part, the regiment were such as all hanged on the king's or queen's will, and not upon the laws written ; if she might decree and make laws alone without her senate ; if she judged offences according to her wisdom, and not by limitation of statutes and laws ; if she might dispose alone of war and peace ; if, to be short, she were a mere monarch, and not a mixed ruler, you might per- adventure make me to fear the matter the more, and the less to defend the cause.' 3 Again, in 1566, Mr. Onslow, then Solicitor-general and Mr. Speaker Speaker of the Commons, addressing Queen Eliza- ° ( ^ low 'f tll beth at the conclusion of the session said : .' By our com- Queen, mon law, although there be for the prince provided A-D- I5 many princely prerogatives and royalties, yet it is not such as the prince can take money or other things, or do as he will at his own pleasure, without order ; but 1 Knox's 'Blast ' was written in the time of Queen Mary and directed against her, but it was of course equally applicable to her sister Elizabeth. 2 Harborowe of True and Faithful Subjects, 1559, cited by Brodie, Hist. Brit. Emp. — Title in margin 'It is less danger to be governed in England by a woman than anywhere else.' Aylmer afterwards presents a picture of the wretchedness 'of the French, and compares their condition, and that of other continental states, with the situation of England. 458 The Tudor Period. [Ch. Harrison's ' Description of England.' A.D. 1577. Hooker's ' Ecclesiastical Polity.' quietly to suffer his subjects to enjoy their own, without wrongful oppression ; wherein other princes by their liberty do take as pleaseth them.' 1 Harrison, in his ' Description of England,' published in 1577, says of the Parliament : 'This House hath the most high and absolute power of the realm ; for thereby kings and mighty princes have from time to time been deposed from their thrones ; laws either enacted or ab- rogated ; offenders of all sorts punished ; and corrupted religion either disannulled or reformed. To be short, whatsoever the people of Rome did in their centuriatis or tribunitiis comitiis, the same is and may be done by authority of our Parliament House, which is the head and body of all the realm, and the place wherein every parti- cular person is intended to be present, if not by himself, yet by his advocate or attorney. For this cause also, any thing there enacted is not to be misliked, but obeyed by all men without contradiction or grudge.' 2 That the same theory of the constitution prevailed in the later period of Elizabeth's reign is evidenced by the words of the judicious Hooker in his ' Ecclesiastical Polity.' I cannot choose,' he says, 'but commend highly their wisdom, by whom the foundation of the common- wealth hath been laid ; wherein, though no manner of person or cause be unsubject unto the king's power, yet so is the power of the king over all, and in all, limited, that unto all his proceedings the law itself is a rule. The axioms of our regal government are these : "Lex facit regem" — the king's grant of any favour made con- trary to the law is void ; — " Rex nihil potest nisi quod jure potest" — what -power the king hath he hath it by law ; the bounds and limits of it are known, the entire community giveth general order by law how all things publicly are to be done ; and the king as the head 1 D'Ewes, p. 115. 2 Harrison's Description of England, cited by Brodie, Hist. Brit. Emp. xii.] Elisabeth. 459 thereof, the highest in authority over all, causeth, accord- ing to the same law, every particular to be framed and ordered thereby. The whole body politic maketh laws, which laws give power unto the king ; and the king having bound himself to use according to law that power, it so falleth out that the execution of the one is accom- plished by the other.' 1 Similar views of the constitution — vaguely and some- Sir Thomas what timidly expressed it is true — are found in the m ™ nwe S a ith° m " ' Commonwealth ' of Sir Thomas Smith, one of Eliza- beth's Secretaries of State. 2 On the other hand a novel theory — utterly unknown to the ancient English constitution — of an absolute and paramount power inherent in the very nature of the regal office, had already found not a few supporters among the lawyers and courtiers of Elizabeth's reign. It was only after long years of bitter conflict, after the decapitation of one monarch and the deposition of another, that this theory of government which the Stewart dynasty adopted, developed and pushed to its extreme logical results, was at length finally vanquished by the ancient free principles of the constitution which it had attempted to supplant. 1 Ecclesiastical Polity, book viii. The first four books were published in 1594; the fifth in 1597 ; the remaining three not till forty-seven years after his death, which happened in the year 1600. The sixth book, though written by Hooker, did not belong to this work ; the real sixth book appears therefore to have been lost. See Keble's edition. * Smith's 'Commonwealth,' book ii. c. 3. CHAPTER XIII. THE STEWART PERIOD. (A.D. 1603-1688.) FROM THE ACCESSION OF JAMES t. TO THE PASSING OF THE PETITION OF RIGHT. James I. JAMES I. came to the English throne at a critical Tendency of' P er i°d of our history. The reactionary movement ic-litical and towards despotism, which began under Henry VI., t 'his'accession. reached its climax under Henry VIII., and had since been slowly receding before the reviving spirit of free- The Puritan dom. During the latter years of Elizabeth the Puritan ,arty " party had become organized and powerful. Whilst the old queen lived, they were, for the most part, content to postpone the active assertion of the rights of the people against the Crown. They looked forward with hope to the advent of her successor, in the expectation of volun- tary concessions ; but were determined in any case to carry out further reforms in the ecclesiastical system, and to insist upon all the ancient privileges of Parliament, and all the legal liberties of the subject. Violent changes were not, however, generally desired. Although there was a party hostile to the hierarchy, the bulk of the Puritans had no desire to abolish episcopacy, and would have been fully satisfied with a dispensation from certain ceremonies which too forcibly reminded them of the Effect of James's religion they had renounced. The Presbyterian educa- 'd r ucatio e n! an tion of J ames had led them to anticipate a ready acquiescence in such a moderate measure of reform. Ch. xm. ] James I. to Petition of Right. 461 But the king's experience of the Presbyterian clergy had, in fact, been productive of prejudices the very opposite to what the English Puritans had expected. ' The Scotch clergy,' observes Mr. Brodie, ' full of the highest ambi- tion, had converted the pulpit into a theatre for political declamation ; and James had imbibed the bitterest hostility to everything which approached to the Presby- terian form of ecclesiastical establishment, declaring that under it Jack and Tom and Dick and Will presumed to instruct him in affairs of State.' 1 Under the tuition of the celebrated George Buchanan James had acquired more learning than he had understanding to digest. Puffed up with literary pride and self-sufficiency, he imagined himself possessed of supereminent wisdom, while in reality lacking the judgment of a man of ordi- nary abilities. The Due de Sully called him 'the wisest fool in Europe,' — a phrase which epigrammatically sums up the peculiarities of the king's intellect. The avowed antipathy of James to every kind of Pro- His . political testant nonconformity, was based on political, rather than nonconfor- on religious, reasoning. 'The presbytery,' he said, 'agreeth mlt y- as well with monarchy as God with the devil.' He was convinced that the hierarchy was the firmest support of the Crown, and that where there was no bishop there would soon be no king. He determined, therefore, to allow not the slightest toleration to Nonconformists, a resolution in which he was confirmed by the fulsome flattery of the prelates, some of whom, at the Hampton Court Conference, did not hesitate to ascribe to him immediate inspiration from Heaven. 3 1 Brodie, Hist. Brit. Emp. i. 332. 2 On his journey to London, the Puritan clergy presented to the king what is commonly called the 'Millenary Petition,' because it purported to proceed from ' more than 1000 ministers ' though the actual number of those who signified their assent to it is said not to have exceeded 825. It contained nothing inconsistent with the established hierarchy ; but the petitioners prayed for ' a reformation in the church service, ministry, livings, and dis- cipline.' In order to obtain further information on the points in dispute, James summoned the famous conference at Hampton Court between the 462 The Stewart Period. [Ch. Arbitrary nature of his civil government. While sternly repressing the nonconforming Protes- tants, James at the same time showed an inclination to grant some partial indulgence to the Roman Catholics, — a policy which excited disgust and jealousy throughout the kingdom, and thus strengthened the hands of the Puritan faction. 1 The civil government of James was no less impolitic and arbitrary than his ecclesiastical. At a time when the growing spirit of freedom, the general diffusion of knowledge, and the revived study of Greek and Roman authors 3 had caused a republican tendency to mani- fest itself in Parliament, and among the people, this alien king, — who, having been legally excluded from the English throne by the testament of Henry VIII., had no title to it but such as he derived from the will of the Archbishop of Canterbury, eight bishops, five deans and two doctors on the one side, and Dr. Reynolds and three other Puritan divines on the other. At the conference, which was held before the king on the 14th, 15th, and 16th of January, 1603-4, instead of acting as moderator, James, eager to dis- play his theological learning, assumed the part of advocate for the Church. Transported with admiration the primate exclaimed that 'his majesty spoke by the special assistance of God's Spirit ; ' and the Bishop of London said ' his heart melted within him to hear a king, the like of whom had not been since the time of Christ.' (Howell's State Trials, ii. 86, 87.) Some slight alterations in the Book of Common Prayer were made after the Conference; but ten of the men who had presented the Millenary Petition were com- mitted to prison, ' the judges having declared in the Star Chamber that it was an offence finable at discretion, and very near to treason and felony, as it tended to sedition and rebellion.' Hallam, Const. Hist. i. 298. 1 James soon found it necessary, in order to free himself from the impu- tation of Papistry with which the Puritans assailed him, to cause the penal laws against the Catholics to be put into execution. After the discovery of the Gunpowder Plot additional severity was added to the statutes in force by two Acts ' containing more than seventy articles inflicting penalties on the Catholics in all their several capacities of masters, servants, husbands, parents, children, heirs, executors, patrons, barristers, and physicians. ' (3 James I. c. 4, ' For the better discovering and repressing of Popish recusants ; ' and 3 James I. c. 5, ' To prevent and avoid dangers which grow by Popish recusants.' See also 7 James I. u. 2 and c. 6.) 2 On the powerful influence of the classical writings in the direction of liberty, see Lecky, Rationalism in Europe, ii. 218. Hobbes (born 1588, died 1679) says in the Leviathan (ch. xxix) 'Inter rebellionis causas maximas numerari potest librorum politicorum et historicorum quos scripserunt veteres Graeci et Romani lectio. . . Mihi ergo monarchiis nihil videtur esse damnosius posse, quam permittere ut hujusmodi libri publice doceantur, nisi simul a magistris sapientibus quibus venenum corrigi possit remedia applicentur. Morbum hunc comparari libet cum hydro- phobia,' &c. xiii.] James I. to Petition of Right. 463 English people, — was constantly asserting, in the most offensive form, the novel and monstrous theory of his divine right to absolute and irresponsible sovereignty. This doctrine had already been advanced by him some Theory of years before in Scotland, in a treatise on the ' True Law mne rig *" of Free Monarchies.' 1 Adopted by the hierarchy 2 and the courtiers, the theory of divine right was later on elaborated into a system by Filmer, 3 and became the dis- tinctive badge of the more violent high-churchmen and Tories. ' It was gravely maintained that the Supreme Being regarded hereditary monarchy, as opposed to other forms of government, with peculiar favour ; that • the rule of succession in order of primogeniture was a Divine institution, anterior to the Christian, and even to the Mosaic dispensation ; that no human power, not even that of the whole legislature, no length of adverse possession, though it extended to ten centuries, could deprive a legitimate prince of his rights ; that the authority of such a prince was necessarily always des- potic ; that the laws, by which, in England and in other countries, the prerogative was limited, were to be re- garded merely as concessions which the sovereign had freely made and might at his pleasure resume ; and that any treaty which a king might conclude with his people was merely a declaration of his present intentions, and l_ 1 King James's Works, p. 207. 2 In 1604, Convocation drew up a set of canons, 141 in number, which received the royal assent, but never having been sanctioned by Parliament are not legally binding upon the laity. Besides declaring every man to be excommunicated who should question the complete accordance of the Prayer Book with the Word of God ; they denounce as erroneous a number of tenets believed to be hostile to royal government, and inculcate the duty of passive obedience to the king, in all cases without exception. 3 Sir Robert Filmer wrote his famous 'Patriarca' in the reign of Charles I., but it was not published till after the restoration of Charles II. He maintained that ' All government is absolute monarchy. No man is born free ; and, therefore, could never have the liberty to choose either governor or form of government. The father of a family governs by no laws but his own. Kings, in the right of parents, succeed to the exercise of supreme jurisdiction. They are above all laws. They have a divine right to absolute power, and are not answerable to human authority. ' 464 The Stewart Period. [Ch. A conflict with the House of Commons inevitable. James is the aggressor. not a contract of which the performance could be demanded.' 1 Such being the ideas of the king on regal government, it was inevitable that he should speedily come into con- flict with the House of Commons, a body fully aware of its ancient rights and privileges, impressed with the duty of asserting and maintaining them, and strong in the consciousness that it represented the feelings and wishes of the great majority of all classes of the nation. 3 The very first, acts of James's reign were ominous of the arbitrary manner in which he designed to rule his new kingdom. On his journey to London he ordered a thief, taken in the fact, to be executed without the formality of a trial; 3 and in the proclamation summon- 1 Macaulay, Hist. Eng. i. 55. The sublime pretensions of James were rendered ludicrous, as well as irritating, by the contemptible demeanour of the king himself. 'His cowardice, his childishness, his pedantry, his ungainly person and manners, his provincial accent, made him an object of derision. Even in his virtues and accomplishments there was something emi- nently unkingly. Throughout the whole course of his reign, all the venerable associations by which the throne had long been fenced were gradually losing their strength. During two hundred years all the sovereigns who had ruled England, with the single exception of the unfortunate Henry the Sixth, had been strong-minded, high-spirited, courageous, and of princely bearing. Almost all had possessed abilities above the ordinary level. It was no light thing that, on the very eve of the decisive struggle between our Kings and their Parliaments, royalty should be exhibited to the world stammering, slobbering, shedding unmanly tears, trembling at a drawn sword, and talking in the style alternately of a buffoon and of a pedagogue.' Id. p. 58. See also Mr. J. R. Green's ' Short History of the English People, pp. 464-467. 2 Towards the end of the 16th, and during the earlier part of the 17th century, the House of Commons included among its members a large body of men of ability, recruited especially from amongst the lawyers who became known to the electors by the talent which they displayed at the bar. ' The services which this class of men rendered to the cause of freedom wsb- U>eAJL- incalculable. The learning of the ablest lawyers in the 1 6th century may have been small in comparison with the stores of knowledge which may be acquired in our own day ; but, relatively to the general level of education, it stood far higher. A few years later a race of parliamentary statesmen would begin to arise from amongst the country gentlemen : but, as yet, almost all pretensions to statesmanship were confined to the council-table and its supporters. For the present, the burthen of the conflict in the Commons lay upon the lawyers, who at once gave to the struggle against the Crown that strong legal character which it never afterwards lost.' — S. R. Gardiner, Hist. Eng. from 1603 to 1616, i. 178. 3 ' I hear our new king, ' said Sir John Harrington, ' has hanged one man before he was tried ; it is strangely done. Now, if the'wind bloweth thus, why may not a man be tried before he has offended ? '— Nuga: Antique, i. xiii.] James I. to Petition of Right. 465 ing his first Parliament he was guilty of a glaring infringement upon the privileges and independence of the House of Commons. He took upon himself to specify the kind of men who were to be elected, and directed that all returns should be sent to his Court of Chancery, and that such as should be there found contrary to the Proclamation should be rejected as 'unlawful and insufficient.' l James' first Parliament met on the 19th March, ui Parliament, 1603-4. It was felt that a struggle with the Crown was session I. at hand. So large was the attendance of members in March 19th- July 7th. their places that additional seats had to be provided. In answer to the address from the throne, the Speaker, Sir Edward Phelips, was careful to remind the King of the limited nature of his regal powers : ' New laws,' he said, 'could not be instituted, nor imperfect laws reformed, nor inconvenient laws abrogated, by any other power than that of the high court of Parliament, that is, by the agreement of the Commons, the accord of the Lords, and the assent of the Sovereign : that to the king belonged the right either negatively to frustrate, or affirmatively to ratify ; but that he could not institute : every bill must pass the two Houses before it could be submitted to his pleasure.' The first business of the Commons was the vindication Privileges of the of their exclusive right to determine contested elections, ^^ated. against the attempt of James to transfer the decision of such cases to his Court of Chancery. Another of their privileges, freedom from arrest, was also energetically asserted, and received for the first time a distinct legisla- tive recognition. 2 During a long and stormy session the Commons Complaints of grievances. 1 Pari. Hist. i. 967. 2 See the cases of Goodwin and Fortescue, and of Sir Thomas Shirley, sup'a, pp. 303, 309.. During the discussions on Goodwin's case, James informed the Commons that 'he had no purpose to impeach their privilege, but since they derived all matters of privilege from him, and by his grant, he expected that they should not be turned against him.' 466 The Stewart Period. [Ch Commons' justification of their proceed- ings. freely discussed their various grievances ; the ancien abuse of purveyance, which, notwithstanding thirty-so restraining statutes, still flourished with scarcely di minished vigour ; the hardships of feudal guardianshij in chivalry ; the monopolies of the great foreign trading companies, and several other matters of complaint After granting the usual duties of tonnage and poundage for the king's life, they concluded by placing on record a remarkable protestation of their rights and liberties drawn up by a committee of the House, and entitled ' A Form of Apology and Satisfaction to be delivered to his Majesty.' In this important constitutional document the Commons commence by expressing a desire to justify their own conduct and to remove from the king's mind certain misinformations under which he appeared to be labouring, namely, first, That the privileges of the Commons were not held of right, but of grace only renewed every Parliament by way of donative, upon petition ; secondly, that they are no court of record, nor yet a court that can command view of records, but that the attendance with the records is courtesy not duty ; and lastly, that the examination of the returns of writs for knights and burgesses is without their compass and belonging to the Chancery : assertions against which, as ' tending directly and apparently to the utter overthrow of the very fundamental privileges of our House, and therein of the rights and liberties of the whole Commons of the realm of England, which they and their ancestors from time immemorial have undoubtedly enjoyed,' they protest, ' in the name of the whole Commons of England with uniform consent, for themselves and their posterity.' In contradiction to these misinformations the Commons avouched : (i.) ' That our privileges and liberties are of right and due inheritance no less than our very lands and goods ; (2.) That they cannot be withheld from us, denied, or impaired, but with apparent wrong to the whole state of the realm ; (3.) That our making of xin.] James I. to Petition of Right. 4 7 request, in the entrance of Parliament, to enjoy our privileges, is an act of manners only, and doth not weaken our right, no more than our sueing to the king for our lands by petition, which form, though new and more decent than the old praecipe, yet the subject's right is no less now than of old ; (4.) That our House is a Court of Record and so ever esteemed ; (5.) That there is not the highest standing court in this land that ought to enter into competency, either for dignity or authority, with this high court of Parliament, which, with your Majesty's royal assent, gives laws to other courts, but from other courts receives neither laws nor orders; (6.) And lastly, that the House of Commons is the sole proper judge of the return of all such writs and of the election of all such members as belong unto it, without the which the freedom of election were not entire ; and that though your Majesty's Court of Chancery send out these writs and receive the returns and preserve them, yet the same is done only for the use of Parliament, over which neither the Chancery, nor any other court, ever had, or ought to have, any manner of jurisdiction.' Further on they inform the king that ' in regard to the late queen's sex and age which we had great cause to tender, and much more upon care to avoid all trouble, which by wicked practice might have been drawn to im- peach the quiet of your Majesty's right in the succession, [a gentle hint at the legal and other difficulties which had stood in the way of James's claim to the throne], actions were then passed over which we hoped in succeeding times to redress and rectify ; whereas, contrarywise in this Par- liament, not only privileges, but the whole freedom of the Parliament and realm, hath from time to time, on all occasions, been mainly hewed at.' They then enter into particulars of the various matters which had arisen during the session — the business of Goodwin's election of Sir Thomas Shirley's arrest, and other causes of com- plaint. ' For matter of religion,' they assure his Majesty 468 The Stewart Period. [Ch. that he would be misinformed 'if any man should deliver that the kings of England have any absolute power in themselves, either to after religion, (which God forefend should be in the power of any mortal man what- soever,) or to make any laws concerning the same, other- wise than as in temporal causes, by consent of Parlia- ment.' Touching their own desires and proceedings therein, there had been not a little misconception and misinterpretation. ' We have not come,' they said, ' in any Puritan or Brownist 1 spirit to introduce their purity, or to work the subversion of the state ecclesiastical as now it stands, things so far and so clear from our mean- ing as that, with uniform consent, in the beginning of this Parliament we committed to the Tower a man who out of that humour had, in a petition exhibited to our House, slandered the bishops ; but according to the tenor of your Majesty's writs of summons directed to the counties from which we came, and according to the ancient and long continued use of Parliaments, as by many records from time to time appeareth, we came with another spirit, even with the spirit of peace ; we disputed not of matters of faith and doctrine, our desire was peace only, and our desire of unity, how this lament- able and long-lasting dissension amongst the ministers (from which both atheism, sects, and ill-life have received such encouragement and dangerous increase) might at length, before help came too late, be extinguished. And for the ways of this peace we are not addicted at all to our own inventions, but ready to embrace any fit way that may be offered. Neither desire we so much that any man, in regard of weakness of conscience, may be exempted after Parliament from obedience to laws established, as that in this Parliament such laws may be 1 The ' Brownists ' took their name from Robert Browne, a kinsman of Lord Burleigh, and at one time chaplain to the Duke of Norfolk. His principles were very much those which were afterwards held by the Independents. xiii.] yames I. to Petition of Right. 469 enacted as by relinquishment of some few ceremonies of small importance, or by any better way, a perpetual uni- formity may be enjoined and observed.' They conclude by assuring the king that ' Our care is, and must be, to confirm the love, and to tie the hearts of your subjects, the Commons, most firmly to your Majesty. Let no suspicion have access to their fearful thoughts that their privileges, which they think by your Majesty should be protected, should now by sinister information or counsel be violated or impaired, or that those who with dutiful respect to your Majesty speak freely for the right and good of their country shall be oppressed or disgraced. Let your Majesty be pleased to receive public informa- tion from your Commons in Parliament, as well of the abuses in the Church as in the Civil State and Government. For private informations pass often by practice. The voice of the people, in things of their knowledge, is said to be as the voice of God. And if your Majesty shall vouchsafe, at your best pleasure and leisure, to enter into .gracious consideration of our petitions for ease of those burthens under which your whole people have long time mourned, hoping for relief by your Majesty, then may you be assured to be possessed of their hearts for ever, and if of their hearts, then of all they can do and have.' 1 In this free and outspoken yet thoroughly conserva- tive and monarchical address, the Commons of England, at the commencement of their conflict for liberty with the House of Stewart, took up the position which they resolutely maintained during eighty-four long and stormy years. 'To understand this Apology,' says Mr. Gardiner, 'is to understand the causes of the success of the English Revolution. They did not ask for anything which was not in accordance with justice. They did not demand a single privilege which was not necessary for 1 Pari. Hist. i. 1030, and State Papers, Domestic, viii. 70. 470 The Stewart Period. . [ch, the good of the nation as well as for their own dignity. In every point they were emphatically* in the right, while in some point or other, the King, the Council, the House of Lords, the Bishops, and the Puritans, were no less emphatically in the wrong. Their cause was just, and with the knowledge that the nation would support them, they could afford to wait with patience.' 1 Sessions During the next two sessions of Parliament (January a"d a i&J;-6 2Ist ' l6 °5 -6 10 Mav 2 7 th > and November 18th 1606 to Jan. 2i-May27. July 4, 1607) constant bickerings occurred between the July! 1607/ ki n S and the Commons, but unmarked by any very decisive assertion of prerogative on the one hand or of privilege on the other. In the session of 1606, the rule that the same bill cannot be proposed twice in the same session was established, probably for the first time, by the action of the Lords, who peremptorily rejected a bill respecting purveyance which the Commons sent-up to them very shortly after they had thrown out a pre- Expulsion of vious bill to the same effect. In the session of 1607 the Sir Christopher Commons, at the king's request, expelled and imprisoned one of their members, Sir Christopher Pigott (who had been chosen for Buckinghamshire on the resignation of Sir Francis Goodwin), for slanderous aspersions cast upon the national character of the Scots. But this was rather a confirmation of their jurisdiction over their own members than any surrender of their privileges. Three days after the speech had been uttered, the king sent them a message ' how much he did mislike and tax the neglect of the House, in that the speech was not interrupted in the instant and the party committed before it became public, and to his highness' ear.' They hesitated for some time ; 'they knew not,' they said, ' what way to censure him for it, freedom of speech in their House was a darling privilege.' But it was evident that 1 Gardiner, Hist. Eng. (1603-1616),;. 208. xiii.] James I. to Petition of Right. 471 the king had just cause to complain, and, after resolving that Pigott, being a member of the House, was not liable to be called in question elsewhere, they determined in the exercise of their own discretion to punish the intem- perance of their own member. 1 During both sessions the Proposed union principal subject of discussion was James's favourite, but land and Scot- premature, scheme for a perfect union between England land .> and Scotland, so that all his subjects might enjoy the same rights and be amenable to the same laws. But the proposition was repugnant to both English and Scotch, in whom the national prejudices and animosities of ages still warmly glowed, and the only result was the passing of an Act (4 Jac. I. c. 1.) by which all hostile laws between the two kingdoms, extending from the 7th Richard II. (A.D. 1383) to the reign of Elizabeth, were repealed. 2 Offended at the Commons' bold assertion of their Parliament not privileges and constant complaints of grievances, James ^™ ^ fe 1 " allowed an interval of two years and a half to elapse 4. to 1609-10, without meeting his Parliament. In want of money, but unwilling to apply for a legislative grant, he had recourse to the unconstitutional expedient of increasing the duty illegal imposi- on imports by his own sole authority. In 1606 the king chahd'ise 11 "*" had directed the collectors of customs to demand a duty of $s. per cwt. on all currants imported, in ad- 1 Com. Journ. i. 335. 2 The king was anxious to have a declaratory Act pronouncing that the union of the crowns had effected a mutual naturalization of the post-nati (i.e., persons born after his accession to the throne of England), and also an enabling Act conferring the same right upon the ante-nati. The English House of Commons was averse to this proposal, and the king, knowing that the opinions of the judges were favourable to the post-nati, determined to get the point settled out of Parliament by an English court of law. 'A piece of ground was accordingly bought in the name of Richard Calvin, an infant, born at Edinburgh in 1605, and an action was then brought in his name against two persons who, by collusion, were supposed to have deprived him of his land. This raised the question as to whether Calvin was an alien, as, in that case, he would be disabled from holding land in Eng- land. It was held by twelve judges out of fourteen, in the Exchequer Chamber, that the Scotch post-natus was a natural subject of the King of England. — Calvin's case, 2 St. Tr. 559, 7 Jac. I. a.d. 1608. 472 The Stewart Period. [Ch. dition to the 2s. 6d. granted by the statute of tonnage Bates's case, an( j poundage. John Bates, a merchant of the Levant Company, refused to pay the additional impost, alleging that it was illegal without the authority of Parliament. An information was exhibited against him in the Court of Exchequer, and an unanimous decision of the four Barons was soon given for the Crown. But the language of Chief Baron Fleming and Baron Clark (the only two whose judgments are reported) was even more sub- versive of liberty than the actual decision itself. They maintained that ' the king's power is twofold, ordinary and absolute. His ordinary power is for the profit of particular subjects, for the execution of civil justice in the ordinary courts, and is called by civilians jus privatum, with us common law : it cannot be changed without Parliament. The king's absolute power, on the contrary, is applied not for the benefit of particular persons, but for the general benefit of the people, and is salus populi. This power is not directed by the rules of common law, but is properly termed policy or govern- ment, varying according to the wisdom of the king for the common good. The matter in question is material matter of State, and ought to be governed according to the rules of policy by the king's extraordinary power. All customs (=duties) be they old or new, are the effects of foreign commerce : but commerce and all affairs with foreigners, war and peace, and all treaties whatsoever, are made by the absolute power of the king ; he there- fore who has power over the cause, has power also over the effect. No exportation or importation can be but at the king's ports. But the seaports are the king's gates which he may open or shut to whom he pleases.' As to the statutes alleged on the part of the defendant, limiting the king's prerogative to impose duties, Baron Clark maintained the monstrous pro- position that Edward III. in giving his assent to the Act of the 43 rd of his reign, c. 4, (forbidding any new xiii.j James I. to Petition of Right. 473 impositions to be laid on wool or leather) ' did not bind his successors.' 1 Even while the case was pending the merchants hast- ened to appeal to the House of Commons: and in the Petition of Grievances presented by the House at the end of the session of 1606 a request was included that the impositions might cease to be levied, as no such duty could legally be demanded without the consent of Parliament. When the Commons reassembled in November, James informed them of the legal decision in his favour, and for a time the matter was allowed to drop. But the king soon determined to make a more extensive use of this power of taxation which the judges had declared to be vested in the Crown. On the 28th of The ' Book 6f July, 1608, a Book of Rates was published under the authority of the Great Seal, imposing heavy duties upon almost all mercantile commodities, ' to be for ever here- after paid to the king and his successors, on pain of his displeasure.' At length the financial difficulties of the king com- Session IV. pelled him again to summon Parliament. 3 The lawyers rtb%— TuY '2* 1 Judgment (abridged) in Bates's case (the Case of Impositions), 2 St. Tr. 371- 2 Special precautions were taken to obtain a majority favourable to the Crown. ' During the long interval which had passed since the last session several vacancies had occurred. To four, at least, of the constituencies which had seats at their disposal [the Treasurer] Salisbury made applications in favour of nominees of his own. The answers which he received throw some light upon the manner in which elections were at that time conducted. The bailiffs of Eye said that they had already selected a candidate at the nomination of a neighbouring gentleman, but that he had consented to waive his claim, when he heard that a letter had been received from Salisbury. Another of the Treasurer's letters was sent down to Bossiney. It was carried by the mayor to a gentleman named Hender, who wrote to Salisbury, telling him that he had held the nomination for more than twenty years, but that, on this occasion, he was willing to place it at the disposal of the Government. The bailiffs of Boroughbridge answered a similar request by saying that they would rather die than refuse to elect Salisbury's nominee. The corporation of Ludlow alone refused to elect the person designated, as they were bound to choose no one who was not a resident in their town. They would, however, take care that their new member should vote entirely according to the wishes of the Government. ' — Gardiner, Hist. Eng. (1603-1616), i. 449, citing State Papers, Domestic, xlviii. 109, 116; xlix. 10; 1. I. 474 The Stewart Period. [Ch. in the Lower House had in the mean time been look- ing into the legal authorities, and were now prepared 1 to dispute the decision of the judges in the case of Remonstrance impositions. Notwithstanding a message from the king igainst im- forbidding them to discuss the question, the Commons positions. were not to be deterred. During a four days' debate the illegality of impositions was conclusively shown from statutes and precedents, in the elaborate and luminous arguments of Hakewill, Yelverton, and Whitelocke. The House was almost unanimous against the Crown. They presented a strong remonstrance to the king on his attempt to prevent discussion, claiming ' as an ancient, general, and undoubted right of Parliament to debate freely all matters which do properly concern the subject ; which freedom of debate being once foreclosed, the essence of the liberty of Parliament is withal dissolved.' With regard to the impositions and judgment in the Exchequer, ' the reasons whereof extended much farther, even to the utter ruin of the ancient liberty of this kingdom, and of the subjects' right of property in their lands and goods,' they remind the king that ' the policy and constitution of this your kingdom appropriates unto the kings of this realm, with the assent of the Parliament, as well the sovereign power of making laws as that of taxing or imposing upon the subjects' goods or mer- chandises, wherein they have justly such a property as may not, without their consent, be altered or changed:' that whenever former kings ' occasioned v either by their wars, or their over-great bounty, have without consent of Parliament set impositions either within the land or upon commodities exported or imported by the mer- chants,' the Commons ' have in open Parliament com- plained of it, in that it was done without their consents, and thereupon never failed to obtain a speedy and full redress, without any claim made by the kings of any powers or prerogative in that point ' : that ' these famous kings for the better contentment and assurance of their xiii.] James I. to Petition of Right. 475 loving subjects agreed that this old fundamental right should be further declared and established by Act of Parliament, wherein it is provided that no such charges should ever be laid upon the people, without their com- mon consent, as may appear by sundry records of former times.' They proceed : ' We therefore, your Majesty's most humble Commons assembled in Parliament, fol- lowing the example of this worthy care of our ancestors, and out of a duty to those for whom we serve, finding that your Majesty, without advice or consent of Parlia- ment, hath lately, in time of peace, set both greater im- positions, and far more in number than any your noble ancestors did in time of war, have with all humility presumed to present this most just and necessary Peti- tion unto your Majesty : That all impositions set with- out the assent of Parliament may be quite abolished and taken away ; and that your Majesty, in imitation like- wise of your noble progenitors, will be pleased that a law may be made during this session of Parliament to declare that all impositions set, or to be set, upon your people, their goods or merchandises, save only by com- mon assent in Parliament, are and shall be void.' 1 A bill was introduced and passed through the Com- mons enacting that no imposition should thereafter be laid without consent of Parliament, other than those already in existence, but it was thrown out by the Lords. Besides the question of impositions, the Commons Complaints brought forward a number of other grievances. They espe- HjX c ^ mis _ cially'complained of the High Commission Court ; and of sion Court, and the abuse of Proclamations, ' by reason whereof they 2«° da ' said, 'there is a general fear conceived and spread amongst your Majesty's people, that Proclamations will, by de- grees, grow up and increase to the strength and nature of laws ; whereby not only that ancient happiness, — 1 Petyt, Jus. Pari. 322, 323. 476 The Stewart Period. [Ch. freedom, — will be much blemished, (if not quite taken away) which their ancestors have so long enjoyed ; but the same may also, in process of time, bring a new form of arbitrary government upon the realm, and this their fear is the more increased by occasion of certain books lately published, which ascribe a greater power to proclama- tions than heretofore had been conceived to belong unto Cowell's them.' Dr. Cowell, Reader on Civil Law at the Univer- ' interpreter.' sity of Cambridge, had recently published, under the patronage of Archbishop Bancroft, a law dictionary called 'The Interpreter,' containing most extravagant assertions in support of the king's absolute power. Under the title King was written : ' He is above the law by his absolute power ; and though for the better and equal course in making laws he do admit the three estates unto council, yet this in divers learned men's opinion is not of constraint, but of his own benignity, or by reason of the promise made upon oath at the time of his coronation. And though at his coronation he take an oath not to alter the laws of the land, yet, this oath notwithstanding, he may alter or suspend any particular law that seemeth hurtful to the public estate. Thus much in short, because I have heard some to be of opinion that the laws are above the king.' Of the Par- liament it is asserted : ' Of these two, one must needs be true, that either the king is above the Parliament, that is, the positive laws of his kingdom, or else that he is not an absolute king And, therefore, though it be a merciful policy, and also a politic mercy (not alterable without great peril) to make laws by the consent of the whole realm, because so no one part shall have cause to complain of a partiality, yet simply to bind a prince to or by those laws were repugnant to the nature and consti- tution of an absolute monarchy.' Further on he ' holds it incontrollable that the king of England is an absolute king,' and ' that subsidies were granted by Parliament in consideration of the king's goodness in waiving his . xiii.] James I. to Petition of Right. 477 absolute power to make laws without their consent.' 1 The Commons were so incensed at these opinions, more especially as the king was reported to have spoken in praise of the book, that they requested a conference on the subject with the Lords. But before any further steps had been taken, James thought it expedient to express his displeasure at the imprudent language of this too zealous advocate of prerogative, and a proclamation was shortly afterwards issued commanding the suppression of the book. 2 The remonstrance of the Commons on the subject Answer of the of Proclamations was not unproductive of good. Sir legality of Edward Coke, Chief Justice of the King's Bench, was Proclamations, sent for to attend the council, and was asked by Salis- bury (i) whether the king could by proclamation prohibit the building of new houses in London (with the object ■ of checking what was regarded as the overgrowth of the capital), and (2) whether he could in the same way forbid the manufacture of starch from wheat (so as to preserve the latter for consumption as food only). Coke replied that it was a matter of great importance, on which he would confer with the other judges. To this the council reluctantly agreed, and Chief Justice Fleming, Chief Baron Tanfield, and Baron Altham were appointed to consider the matter in conjunction with him. Shortly afterwards the four judges delivered their opinion in the presence of the Privy Council. The king, they said, could not create any new offence by his proclamation ; for then he might alter the law of the land in a high point; for if 1 Cowell's 'Interpreter,' ed. 1697, articles 'King,' 'Parliament,' ' Prerogative,' ' Subsidy.' 2 Lord Salisbury reported to the House of Lords that the king had acknowledged that, although he derived his title from his ancestors, ' yet the law did set the crown upon his head, ' ' and that he was a king by the common law of the land.' He ' had no power to make laws of himself, or to exact any subsidies dejure, without the consent of his three estates, and, therefore, he was so far from approving the opinion, that he did hate those that believed it.'— Pari. Deb. in 1610 (Camden Society), p. 24, cited by. Gardiner, Hist. Eng. 478 The Stewart Period. [Ch. The ' Great Contract. ' Session V. A.D. l6lO. . Oct. 16— Dec. 6. he may create an offence where none is, upon that ensues fine and imprisonment. But the king might admonish his subjects to keep the existing laws, on pain of punishment to be inflicted by the law. Further, the king could not, by proclamation, make an offence punishable in the Star Chamber, if it were not already by law under the jurisdiction of that court. They also formally declared that the king had no prerogative but what the law of the land allowed him. By their firmness on this occasion the judges rendered an important service to their country. A check was given to the exercise of arbitrary power in this direction, and for some time no proclamation im- posing fine and imprisonment was issued. 1 Another measure which occupied much of the atten- tion of the king and Parliament during this and the following session was what was termed the Great Contract. The Commons were desirous of getting rid of the irk- some incidents of tenure in chivalry and the right of purveyance. After a great deal of negotiation between the parties, it was at length agreed that the king should receive the sum of £200,000 yearly as compensation for the abolition of both these feudal sources of revenue. The matter was adjourned to the next session of Parlia- ment : but in the mean time the Commons had grown lukewarm. They were impressed with a sense of the insecurity of any contract made with the king in face of the doctrines maintained by himself and by the court lawyers, of a paramount royal prerogative uncontrol- lable by any statute. They were apprehensive that if the king's wants were fully supplied by a permanent grant, he might in future be tempted to govern without summoning Parliaments : they were especially dissatisfied with his steady refusal to admit of any change, however slight, in the ceremonial of the National Church, or of any reform in the system of the Ecclesiastical Courts 12 Reports, 74. xni.] James I. to Petition of Right. 479 whose jurisdiction the Bishops were persistently attempt- ing to emancipate from all control by the Courts of Common Law. James, too, on his part, appears to have become less eager to carry out the contract. It was represented to him that after all he would not gain much by the bargain ; that by a little more care in managing the Crown lands, by putting in force with the utmost rigour all the rights, which he possessed against his subjects, he might obtain the required revenue without having recourse to Parliament, and so retain his prero- gative undiminished. 1 It became evident that the scheme must fall through ; and Salisbury then pressed the Com- mons for a supply for the king's immediate necessities. But the Commons were in no humour to grant a subsidy unless the whole of their just grievances were redressed. If the king would not give way they were determined to fall back upon their right to refuse supplies. Some sharp things were said of the king's prodigality to his Scotch favourites ; impatient and angry, he adjourned the House ; and shortly afterwards the Parliament was Parliament finally dissolved, after an existence of nearly, seven 9 Feb V i6io-ii years. For the next three years James endeavoured to rule James attempts without having recourse to Parliament. His great dim- thelid^f" 10111 culty was the financial one. His own extravagance, and Parliament, the prodigality with which he rewarded the worthless favourites of his court, had involved him in a heavy debt and raised the ordinary expenditure far above the Crown- revenues. A vigorous effort was made to raise Means resorted funds. Loans on Privy Seals were demanded, often un- to . morderto J ' raise money. successfully, from such as were supposed most capable of bearing the burthen ; the arrears of fines inflicted in the Star Chamber were rigorously] exacted ; the King of France was induced to pay up an old debt of ;£ 65,000; the Dutch were successfully pressed to liquidate their 1 Gardiner, Hist. Eng. i. 478 ; Pari. Deb. in 1610, p. 163. 48o The Stewart Period. [Ch. His financial difficulties. The ' Under- takers.' debt, contracted with Elizabeth, by annual instalments of £40,000 ; several peerages were sold at £10,000 a piece; and a new order of hereditary knights, called baronets, was created, each of whom paid £ 1 000 for his patent. In addition, large sums were raised by the sale of ,Crown lands. But such resources were clearly temporary and inadequate. At the beginning of 1614 the king's liabili- ties amounted to £680,000 as contrasted with £300,000 at which they had stood at the opening of the session of 1610, whilst the annual expenditure exceeded the income by £20o,ooo. 1 For some time it had been evident that Parliament must be summoned ; a course which had always been consistently recommended to the king by Bacon and by Sir Henry Nevill, who, though an opposition member in the late Parliament, had since been seeking the post of Secretary of State. In a very statesmanlike memorial Nevill assured the king that it was a mistake to suppose that the opposition in the late Parliament had arisen from factious mo'tives. He had himself lived on familiar terms with the leaders of the opposition, and was able to affirm without fear of contradiction that they bore no ill-will towards the king. He was ready to undertake for the greater part of them that, if the king would act fairly by his people, he would find these men ready to exert themselves in support of the Government. It would, of course, be necessary to grant certain things upon which those who would be called to pay the sub- sidies had set their hearts. Let the king consider what had been 'demanded, and what had been promised in the last session, granting" the most reasonable of the Commons' requests, in addition to performing all his own promises. Let him avoid any speech likely to excite irritation ; and appear confident of the Parlia- ment's good affections, yielding what he meant to yield 1 For the financial details of James's reign from 1603-1616, see Gardiner, Hist. Eng. xiii.] James I. to Petition of Right. ■ 4-8 1 without waiting to be pressed. Let him communicate such proposals as he wished to lay before the Commons, not through a member of the House of Lords, but either by his own mouth or by such of his ministers as were members of the Lower House, and let him request the Commons to nominate a Committee which might confer with him on all points on which any difference should arise between them. 1 Bacon also strongly advised the king to summon a Parliament, but his advice was much less straightforward and moral than that of Sir Henry Nevill. He sub- mitted that there were many expedients for judiciously managing a House of Commons ; that some of those who had been most forward in opposing were now won over, such as Nevill, Yelverton, Hyde, Crewe, Dudley Digges ; that much might be done through intimidation or flattery towards filling the House with well-affected persons, winning or blinding the lawyers — the ' literae vocales of the House ' — and drawing the country gentle- men, the merchants, and the courtiers, to act for the king's advantage. The king might voluntarily tender such graces and modifications of his prerogative as might with smallest injury be conceded, in order to save, the more important parts unimpaired. 2 Besides Nevill, who had offered to undertake, on behalf of the future House of Commons, that if the king would concede the chief points in dispute the House would not be nig- gardly in granting supplies, there were some others who appear to have engaged, not only to facilitate the king's dealings with the , House, but to influence the elections. The project of these men, who, in the phraseology of the day, were termed the ' Undertakers,' soon leaked out, and excited -much indignation throughout the country. The belief that a general attempt was being made to 1 See the Memorial in Gardiner, Hist. Eng. App.' V. 2 Cott. MS. Tit. F. iv. fol. 328, 330, 332, cited by Gardiner. 1 1 482 The Stewart Period. [Ch. Second Parlia- ment, a.d. 1614. April 5. Impositions denounced. ■Bishop Neile. pack the Parliament caused the government candidates to be rejected on all sides. Of the members returned to Westminster, three hundred, or nearly two-thirds of the whole assembly, were elected for the first time, the consti- tuencies having evidently looked out for men who repre- sented the determined spirit of the nation even more strongly than the members of the late Parliament had done. 1 Parliament met on April 5th, 1614. In the king's speech certain concessions were offered, but of slight con- stitutional importance. The Commons were not to be satisfied with these small instalments of justice. They went at once to the old grievance of Impositions. An unanimous vote was passed against the king's right of imposing taxes without the consent of Parliament ; and a conference on the subject was demanded of the Lords. The Lords requested the advice of the judges on the legal point ; but this was adroitly refused by the mouth of Chief Justice Coke, on the ground that the question might come before them judicially. The Lords, finally, declined the conference ; but in the course of their debate an incident occurred which caused much excite- ment in the Lower House. Neile, Bishop of Lichfield, a sycophantic seeker after power and place, indulged in very abusive language towards the Commons. The Lower House immediately demanded satisfaction from the Lords. The bishop, when called upon to explain his words, protested ' with many tears ' that he had been misconstrued and never meant to speak any evil of the Commons. The Lords acquainted the Lower House with what had passed, but expressed an opinion that in future no member of their House ought to be called in 1 Gardiner, Hist. Eug. ii. 147. ' Amongst those who were thus elected were two men who were to set their mark upon the history of their country. Sir Thomas Wentworth, a young man of twenty-one, and heir to a princely estate in Yorkshire, represented the great county of the north ; John Pym, a Somersetshire country gentleman, nine years older than Wentworth, was sent to the House of Commons by the little borough of Calne. ' — Id. xiii.] James I. to Petition of Right. 483 question on the ground of common fame alone. The king now sent a message that unless the Commons pro- ceeded forthwith to treat of supply, he should dissolve Parliament. But it was too late for intimidation. They declared that they would first proceed with the business of impositions before taking supply into consideration. A few days later, on the 7th of June, Tames dissolved The second or , „ ,. , . , r - . r . ' Addled Parha- the Parliament, which, from the circumstances of its not men t' dissolved, having passed a single bill, was nicknamed ' The Addled 7 J™ 6 ' l6 ' 4- Parliament.' It had sat a little more than two months. This sudden dissolution of Parliament was not suffi- cient to appease the exasperation of James. Four Members se ^ " members who had distinguished themselves by the warmth of their language, Wentworth, 1 Hoskins, Christo- . pher Nevill (a younger son of Lord Abergavenny), and Sir Walter Chute, were sent to the Tower. Sir Edwin Sandys and four other members were orderedj at the same time, not to leave London without permission, while Sir John Savile, Sir Roger Owen, Sir Edward Philips, and Nicholas Hyde, were punished by dismissal from the Commission of the Peace. This intemperate action of James committed him still' Importance of more deeply to the conflict with the House of Commons. byY^es.^ 6 " His position towards that assembly had, in fact, already become untenable. 'No political truth,' observes Mr. Gardiner, ' has been more completely demonstrated by experience than that which declares the impossibility of the co-existence, for any long time, of an hereditary 1 Thomas Wentworth, a. Puritan lawyer and member for Oxford. He was a son of the Peter Wentworth who suffered for his boldness of speech under Elizabeth, and had himself already given offence, in the last Parlia- ment, by the freedom of his language. He is to be distinguished from Sir Thomas Wentworth, member for Yorkshire, who was returned to Parlia- ment in 1614 for the first time. Of the four members sent to the Tower, Wentworth was released on the 29th June, Nevill on the loth July, and Chute on the 2nd October. Hoskins who, in declaiming against the Scottish favourites, had gone so far as to hint at the possibility of an imita- tion of the Sicilian Vespers, was detained in prison for a twelvemonth. Privy Council Register, cited by Gardiner. 4 8 4 The Stewart Period. [Ch. Six years of arbitrary government. A general benevolence. sovereign and a representative legislature, wherever no right of control is recognised as existing either in the legislature itself, or in the nation which it represents. James might choose- one of two courses ; he might attempt to deprive the Parliament of its representative character, by refusing to allow it to express the wishes of the nation, or he might give it a control over the executive government. No ■ middle way was possible. Supported by his Council, by his own ideas of his rights as a king, and by a few precedents from the reign of Elizabeth, he chose the former alternative. To this step of his there could be but one reply. Misgovernment had been met by the Commons with refusal of supplies. Imprisonment of their members, it might safely be pre- dicted, would be answered, whenever they met again, by impeachment of the ministers of the Crown.' 1 During the next six years James pursued a career of arbitrary government unchecked by the existence of Parliament. To supply the wants of his treasury recourse was again had to the old expedients of forced loans, monopolies, heavy fines, and the rigorous exac- tion of the old feudal payments. At the time of the dissolution some of the bishops offered the king a con- tribution to help him out of his difficulties. In a few days their example was followed by the principal nobility and officers of the court ; and a resolution was then taken to call upon all England for a general benevolence. Letters were written by the Council to the sheriffs and magistrates in each county and borough calling upon them to collect and send in contributions from all persons of ability. Although care was taken to represent these payments in the character of voluntary contributions, the Council in their letters did not hesitate - to give very strong hints that it would not be well with those who refused to pay. It was significant that the 1 Gardiner, Hist. Eng. ii. 166. xin.] James I. to Petition of Right. 4^5 judges of assize were specially charged with the task of recommending payment, 1 a mischievous resuscitation of the blended judicial and fiscal functions of the ancient justices itinerant. But despite of all the exertions of the court only a very small sum was with much difficulty and pressure obtained. The bishops, courtiers, and city of London had contributed £23,500 previously to the general appeal. From the general appeal itself, extend- ing over nearly three years, the total sum obtained from the people of England was no more than £4.2,600? In Protests against several counties the sheriffs and magistrates sent up '' united protests against the demand, appealing to the Act of 1 Richard III. c. 2. against benevolences, and expressing their unwillingness to injure their posterity by establishing a bad precedent. 3 Mr. Oliver St. John on being applied to by the Mayor imprisonment of Marlborough for a contribution, replied in a letter in g t T ^ n lver which he maintained that all such contributions were contrary to Magna Charta and other statutes, including the well-known Act of Richard III., and that it was im- proper for private individuals to oppose their judgment to that of the Commons in Parliament who had refused to grant any supply. He concluded somewhat intem- perately by charging the king with breaking the corona- tion oath, and declared his belief that all who paid the benevolence were supporting their sovereign in perjury. This letter having come to the knowledge of the Council, St. John was sent for to London, committed to the Tower, arid sentenced by the Star Chamber to pay a fine of £5,000, and to be imprisoned during the king's pleasure. The fine was afterwards remitted, but he was not set at liberty for some time. At this time the king and council were also engaged Prosecution of Peacham, . _ A.D. 1615. 1 Gardiner, Hist. Eng. ii. 172. 2 Id. 3 Privy Council Register, cited by Gardiner, App. VI. 486 The Stewart Period. [Ch. in investigating another affair, which was probably clothed with an importance which it did not possess in consequence of the excited feelings roused by the levy of the benevolence. Edmond Peacham, rector of Hinton St. George, Somersetshire, (one of the counties which had taken the lead in remonstrating against the benevolence), had recently been prosecuted in the High Commission Court for a libel on his bishop and on the Consistory Court, and was sentenced to be deprived of his orders. While the prosecution was pending, his house was searched, apparently for papers connected with the alleged libel, and the officials happened to alight upon a manuscript treatise in the form of a sermon, together with some loose sheets, containing, in very offen- sive language, such an attack upon the personal conduct of the king and the actions of his ministers, as would un- doubtedly, if published, have amounted to a seditious • libel. These writings were submitted to the Council, who, there is little doubt (though there is no direct evidence on the point), jumped to the conclusion that Peacham's sermon, instead of being an isolated piece of Puritanic intemperance, had been prepared in connexion with an organized conspiracy of the Somersetshire gentry. 1 Peacham was put to the rack and examined, as it is expressed by Secretary Winwood, ' before torture, in torture, between torture, and after torture,' in the vain expectation that he would reveal a plot which had never existed. No conspiracy or shadow of a conspiracy having been detected, the king and his council deter- mined to proceed directly against the prisoner not for a seditious libel, but for treason, under the statute of 1 In consequence of the resistance to the benevolence shown by the county of Somerset, three of its magistrates had recently been summoned before the Council to receive a lecture on the impropriety of their conduct. Of these, one, Sir Maurice Berkeley, was known to have been in communication with Peacham at the time of the last Parliament, and another, John Paulet, was his immediate neighbour, and had presented him with the living of Hinton. — Gardiner, Hist. Eng. ii. 181. xin.] James I. to Petition of Right. 4^7 Edward III., in compassing the king's death. The only semblance of evidence of an overt act of treason was the manuscript sermon, never preached nor neces- sarily intended to be preached. James directed the Attorney General, Bacon, to confer with the judges of the King's Bench separately, in order to ascertain, and probably to influence, their opinion. Chief Justice Coke objected, (so Bacon reported to the king), that ' such particular, and as he called it, auricular taking of opinions was not according to the custom of the realm.' x The three puisne judges made no difficulty in giving an opinion favourable to the Crown ; and Coke, finding himself unsupported by his brethren in his resistance to separate and private consultation of the judges, at length consented to give a written opinion, which proved however by no means satisfactory. Of the two grounds for ques- tioning the treasonable nature of Peacham's writing, first, that it had never been published, secondly, that even if it had been published, it did not amount to treason, Coke appears to have passed over the first, but asserted boldly that no mere declaration of the king's unworthiness to govern amounted to treason. 3 Peacham was brought to trial at the Taunton Assizes, convicted, and sentenced to death. He was not, however, executed, but died in gaol about seven months afterwards. For some time there had been indications of an Collision impending collision between the king and the Chief king and Chief Justice of the King's Bench. Now that James was at J ust; ce Coke, open war with the representatives of the nation, and was determined to govern as long as possible without the 1 Bacon's Works (ed. Montagu), xii. 124. Coke's objection was not to the consultation of the judges by the king, but to their being consulted separately. At a later time he expressed himself against the propriety of the law-officers consulting the judges at all (3 Inst. 29), and quoted a conclusive precedent in his favour from the Year Books ; but this point was never moved on the present occasion. — Gardiner, ii. 186. 2 ' Innovations of Sir E. Coke,' Bacon's Works (ed. Montagu), vii. 404, cited by Gardiner. 488 The Stewart Period. [Ch. co-operation of a Parliament, the only power in the State which he had to fear was the judicial power. It was impossible to prevent cases involving questions of the utmost constitutional importance from being sub- mitted, as they arose from time to time, to the decision of the judges of the land. They were the authorized exponents of the existing law, and thus possessed the power, if so minded, effectually to check the encroach- ments of the royal prerogative. Prior to Coke's accession to the bench, the judges had shown themselves, on the whole, sufficiently favourable to the prerogative. No reasons could be more satis- factory to the Crown than those upon which the judges had founded their decisions in the celebrated cases of the Postnati and of the Impositions. 1 But Coke early developed upon the bench a sturdy personal indepen- dence, and a determination to appeal on all occasions to the supremacy of the law, which frequently brought him into conflict with the king and the ecclesiastical and courtly supporters of the king's absolute power. 2 The claim, pertinaciously asserted by the king and his council, to interfere with the opinions of the judges in every case in which the rights of the Crown were in the slightest degree involved, was met by Coke with as pertinacious a denial. Case of Com- Matters were brought to a crisis, in 1616, by the pro- mendams, ceedings in what is known as the ' Case of Commendams.' A.D. 1616. & During the time that Bishop Neile held the See of Lich- field, he had received from the king the grant of a living to be held 'in commendam,' that is, along with his bishopric. Two persons named Colt and Glover brought an action against the bishop on the ground that the 1 Supra, p. 471, 472. 2 See, in particular, the case of Brownlow v. Michell, and Bacon s argu- ment on the writ ' De Rege Inconsulto ' (Works, vii. 683), and the case of Glanville and Courtney, which gave rise to Coke's quarrel with the Chancery (Cro. Jac). The facts are concisely stated in Gardiner, Hist. Eng. ii. 266-271. xiii. ] James I. to Petition of Right. 489 presentation was theirs, and not the king's, and they further pleaded that, owing to certain legal objections, the king's grant was invalid in itself. On account of its great importance the case was adjourned into the Exchequer Chamber, before all the twelve judges. The king, hearing that his prerogative was likely to be called in question, deputed Bishop Bilson to sit in court, in his name, whilst the case was being argued, and to report on the language employed. Bilson reported that the counsel for the plaintiffs, besides arguing the special points 'of the case, had disputed the king's general prerogative to grant a commendam. Hereupon James directed the Attorney General Bacon to write to the Chief Justice, ordering him and the rest of the judges not to proceed to judgment until they had spoken with the king. Coke shortly replied that if it was wished that the other judges should receive the information just given to him, Bacon had better write to them himself. This was done ; but the next day, the judges, as if nothing had happened, proceeded with their arguments. On the day following, they despatched a letter to the king, signed by all the twelve, informing his Majesty that, as they were unani- mously of opinion that the Attorney General's letter was contrary to law, they felt bound by their oaths to pay no attention to it, and had accordingly proceeded with the case on the appointed day. The king, who was then at Newmarket, returned answer that the present case was one which concerned not merely the interests of private persons, but in which he himself was to all intents and purposes a party ; that delay was necessary in order that he might lay before them his own case, and that the oath not to delay justice was not meant to prejudice the king's prerogative ; and concluded by commanding them, of his absolute power and authority royal, not to proceed further in the cause till they should hear his pleasure from his own mouth. On his return to London, the twelve judges were sum- 490 The Stewart Period. [Ch. moned before the king and his council. James personally expatiated upon their misdemeanours both in substance and in the form of their letter certifying him merely what they had done, instead of submitting to his judg- ment what they should do. He told them it was their duty to check those advocates who presumed to argue against his prerogative ; that the popular lawyers were the men who, ever since his accession, had trodden on his prerogative in all Parliaments ; J that his prerogative was double, the one ordinary, having relation to private interests, and which might and was every day disputed in Westminster Hall; the other of a higher nature, referring to his supreme and imperial power and sove- reignty, which ought not to be disputed or handled in vulgar argument ; but that of late the courts of common law had grown so vast and transcendent, as both to meddle with the king's prerogative and encroach upon all other courts of justice. As soon as he had concluded, all the judges fell upon their knees and asked pardon for their error.' But Coke, though he joined in demand- ing pardon, entered on a justification of their conduct, reiterating his opinion that the postponement required by the king was in fact a real delay of justice, contrary to 1 James was careful to do what he could to repress the independence of the bar. In 1607 Nicholas Fuller, a bencher of Gray's Inn (who had sat in James's first Parliament, and was returned for the City of London in 1614), was employed by two Puritans, Lad and Maunsell, committed by the High Commission Court for refusing the oath ex-officio, to move for their habeas corpus. This he did on the ground that the commissioners had no power to fine or imprison under the Statute of Elizabeth (I Eliz. c. 1). Although this interpretation was not accepted by the judges at the time, the language of the statute was such as to admit of argument. On the ground that he had slandered the king's authority by questioning the power of the Commission, Fuller was himself summoned before the High Com- mission Court, fined 200/. , and committed to prison. In 1613, James White- locke, a barrister who had been brought into notice in James's first Parliament by his great speech on Impositions, was summoned before the Star Chamber on the charge of having given a private opinion to his client that a commission issued by the king to inquire into the state of the navy was illegal, on account of certain directions contained in it, as to punishing offenders, which Whitelocke considered contrary to the well-known clause of Magna Charta. He was committed to the Fleet, but on making humble submission, was set at liberty.— Fuller's Case, Rep. XII. 41 ; Whitelocke's Liber Famelicus, 33-4°i 113-118; Gardiner, Hist. Eng. i. 443; ii. 109. xiii.] James I. to Petition of Right. 49 1 the law and their oaths. At the desire of James, the Lord Chancellor Ellesmere and the Attorney General Bacon then delivered their opinions, which were directly- opposed to those of the Chief Justice. The following question was then put to the judges, one by one ; ' Whether, if at any time, in a case depending before the judges, his Majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the meantime, they ought not to stay accordingly ? ' All, except Coke, fearful of offending the king, to whom they owed all their future prospects of professional advance- ment, promised to act in future according to the royal wishes. But from Coke no- other answer could be extracted than that, whenever such a case should come before him, he would do what was fitting for a judge to do. The noble conduct of the Chief Justice on this occa- sion has deservedly obtained for him the admiration of posterity. Rather than prostitute the independence of the judicial bench to the arbitrary interference of the king, he showed himself ready to sacrifice, for conscience sake, the high position to which his own merits had raised him. Within a few weeks he was censured by the Coke is dis- council and suspended from his office, and not long ^usteh'p 6 afterwards received notice that he had ceased to be Chief Justice. 1 ' With the disgrace of Coke,' observes Mr. Gardiner, His disgrace an 'the period of transition between the history of the landmark. Tudors and the history of the Stewarts comes to an end. It is a great historical landmark. Up to this time James had been busy in acquiring the powers which were after- wards to be used with such fatal results to himself and to his son. By the deprivation of Coke he obtained at a blow all that he had been seeking by more devious courses. The common law judges now held their offices 1 Hallam, Const. Hist. i. 346-349 ; Gardiner, Hist. Eng. ii. 272-283. |_92 The Stewart Period. [Ch. practically, as well as theoretically, at the good pleasure of the sovereign. From henceforward the prerogative was safe from attack in the courts of law. From hence- forth, too, it stood on its own merits, and could no longer expect to obtain that moral support which it had hitherto received from the decisions pronounced from the bench by judges who were, comparatively at least with those who held office subsequently to Coke's disgrace, independent of the favours and the anger of the Crown.' 1 Foreign policy The foreign policy of James was scarcely/if at all, less of James. irritating to his people than his domestic misgovernment. On coming to the throne he immediately declared for peace with Spain, regardless of the wishes of the great body of Englishmen who, looking with righteous indig- nation on the Spanish power as the great supporter of Popery and tyranny, and feeling bound in honour not to desert their old allies the Dutch in their gallant and now at length hopeful struggle for independence, were eager to carry on the war. James, however, was not only by nature averse from all war, but his notions of the divine right of kings caused him to regard the Dutch war in particular as a contest of rebels against their lawful sovereign, and therefore undeserving of any assistance from him. There were indeed many circumstances in the condition of England at the death of Elizabeth which rendered an honourable peace with Spain highly desir- able ; but not content with peace, James must needs run counter to the whole current of national feeling and prejudice, by setting his heart upon a marriage between his son and the Infanta. The unfeeling execution of Sir Walter Raleigh (29 Oct. 1618), under a sentence of treason passed fifteen years previously, on evidence which was generally considered to be inconclusive, was regarded by the nation as a mean truckling to the revengeful demands of the court of Madrid ; and the 1 Gardiner, Hist. Eng. ii.' 284, 326. xiii.] James. I. to Petition of Right. 493 policy of alliance with Spain became still more odious after the outbreak of the war in Germany, in which the king's son-in-law, Frederic, Count Palatine, [was driven out of his hereditary dominions by Austria. Despite of his pacific temper, James was roused to attempt the restoration of his son-in-law, but while he was anxious to effect his object through the friendly mediation of Spain, the nation was clamorous to support the Protes- tant interest in Germany by force of arms. In this state of affairs the ministers advised the king to take advan- ' tage of the war enthusiasm to summon a Parliament, and James reluctantly gave his consent. James's third Parliament met on the 30th January Third Parlia- 1620- 1, and was opened with a conciliatory speech from session I. the throne. The Commons made some complaints of AD - 1620-1. . , Jan. 30— June4- the imprisonment of four of their members, at the close of the Parliament of 1614, for words spoken in the House ; but the matter was allowed to drop on some explanations being given by Mr. Secretary Calvert, and an assurance from the king that he would ' faithfully maintain the privilege of freedom of speech demanded by the House. Two subsidies were then voted. On the motion of the ex-Chief Justice, Sir Edward Revival of Coke, a committee of inquiry into grievances had been Im P eachments - early appointed. The first abuse to which their atten- tion was directed was that of monopolies, and this led to the revival of the ancient right of parliamentary impeachment — the solemn accusation of an individual by the Commons at the bar of the Lords — which had lain dormant since the impeachment of the Duke of Suffolk in 1449. 1 Under the Tudors impeachments had fallen 1 In 1534 the Commons had complained to the Lords of the conduct? of Stokesley, Bishop of London, and called upon him to make answer. But the Lords declared that it was unbecoming of any Lord of Parliament to make answer in that place ; and the proceeding has not generally been regarded as a case of impeachment. —Lords' Journals, i. 71; Hallam, Const. Hist. i. 357. The proceedings against Wolsey in 1529 have some- times been termed an ' impeachment,' but inaccurately. Articles against 494 The Stewart Period. [Ch. Impeachment of Mompesson and Mitchell, A.D. I62I. And of Lord Chancellor Bacon, a.d. 162 1. into disuse, partly through the subservience of the Commons, and partly through the preference of those sovereigns for bills of attainder, or of pains and penalties. Moreover, the power wielded by the Crown though the Star Chamber enabled it to inflict punishment for many state offences without resorting to the assistance of Par- liament. With the revival of the spirit of liberty in the reign of James I., the practice of impeachment revived also, and was energetically used by the Commons in the interest alike of public justice and of popular power. In the session of 162 1, the Commons impeached Sir Giles Mompesson and Sir Francis Mitchell who, as patentees for the exclusive manufacture of gold and silver thread, for the licensing of ale-houses, and for the inspection of inns and hostelries, had been guilty of gross fraud, violence, and oppression. The Lords passed judgment on both," condemning them to be imprisoned, fined, and degraded from the honour of knighthood. 1 The impeachments of Mompesson and Mitchell were followed up by others against Sir John Bennet, judge of the prerogative court of Canterbury, for corruption in his office ; and Field, Bishop of Llandaff, for brocage of judicial bribery. As yet the Commons had only attacked private persons ; a much more important step was the impeachment of Lord Chancellor Bacon, which revived the right of impeaching the king's ministers. He was found guilty by the Lords of receiving bribes from the suitors of his court, and condemned to pay a fine of ^40,000, to be imprisoned in the Tower during the king's pleasure, to be for ever incapable of any office, place, or employment, and never again to sit in Parliament. 3 The hfm were first presented to the Upper House and then sent down to the Commons, who rejected them, chiefly through the eloquent defence of his patron made by Thomas Cromwell. — Lingard, vi. 1 60. 1 Mompesson had escaped beyond sea, but Mitchell suffered his punish- ment. 2 It is to the credit of James that, recognising the transcendent genius of the great philosopher, he mercifully released him from the Tower after a xiii.] James I. to Petition of Right. 495 constitutional right, revived by the proceedings against impeachment -D i. j j , f ,,.,,, of Middlesex, .bacon, was confirmed and completely re-established by A-D . 1624. the impeachment, in 1624, of Lionel Cranfield, Earl of Middlesex, Lord Treasurer of England, for bribery and other misdemeanours. On his trial he maintained his innocence with much spirit, and bitterly complained of the law which denied to him the benefit of counsel's assistance. He was unanimously convicted, but his remonstrance on the harshness of the law induced the Lords to make an order that in future cases of impeach- ment the accused should be furnished with copies of the depositions for and against him, and that on demand he • should be allowed the aid of counsel. 1 short confinement, remitted the fine and the other parts of the sentence, and conferred upon him a pension of 1800/. 1 Lords' Journals, 307-383, 418. . Impeachments. — ' Between the year 1621, when S'ir Giles Mompesson and Lord Bacon were impeached, and the Revolution in 1688, there were about forty cases of impeachment. In the reigns of William III., Queen Anne, and George I., there were fifteen ; and in the reign of George II. none but that of Lord Lovat, in 1746, for high treason.' (May, Pari Prac. p. 55). The principal cases of constitutional importance since the impeachment of the Earl of Middlesex in 1624, are the following : — George Villiers, Duke of Buckingham. — Impeached by the Commons before the Lords on thirteen charges, of which the most important were that (1) he had neglected to guard the high seas ; (2) had lent ,3. squadron of English ships to be employed against the Huguenots ; and (3) had pur- chased for money and monopolized in his own person several of the highest offices of state. Sir .Dudley Digges, Sir John Eliot, and six other members of the Commons managed the accusation before the Lords. Buckingham delivered in his answer, and the Commons were preparing to reply, when Charles I. dissolved Parliament., In 1628 the Commons presented a remonstrance to the king, ascribing the evils which afflicted the kingdom to the excessive power exercised and abused by Buckingham, and prayed for his removal from office and from about the king's person. Shortly after- wards Charles prorogued Parliament, and during the recess Buckingham was assassinated by Felton. Dr. Roger Mainwaring. — Impeached by the Commons for three political sermons (two preached before the king), afterwards published under the title of ' Religion and Allegiance. ' He maintained that ' Parliaments were not ordained to contribute any right to .the king, but for the more equal imposing and more easy exacting of that which unto kings doth appertain by natural and original law and justice, as their proper inheritance annexed to their imperial crowns from their birth ; ' and that those who refused to pay taxes and loans imposed by the king's royal command, without consent of Parliament, ' did offend against the law of God and the king's supreme authority, and became guilty of impiety, disloyalty, and rebellion.* He was condemned by the Lords to imprisonment during the pleasure of the House, to pay a fine of 1000/., to be suspended for three years from the Subseqenl eases of Impeachment. Buckingham, A.D. 1626. A.D. 1628. 496 The Stewart Period. [Ch. Violent pro- Not content with reasserting their ancient right of ceedings against . < . ^i /— • ii r s- Floyd. impeachment, the Commons, in the session of. 162 1, Strafford, A.D. 1640. laud, l.D. 1641. ministry, and to be incapable of holding any office ecclesiastical or civil. Yet Charles almost immediately pardoned him, gave him an additional rectory, and some years afterwards made him bishop of St. David's. Thomas Wentworth, Earl of Strafford, — Impeached by the Commons of high treason. Of the twenty-eight articles exhibited against him, having reference to his conduct as President of the Council of the North, as Lieutenant of Ireland, as" a Privy Councillor, and as Commaitder of the king's army in England, one only, the 15th, charging him with levying money by his own authority and quartering troops on the people of Ireland, in order to compel them to pay, could be fairly construed as a substantive treason— that of 'levying war againstthe king'— within the Statuteof Ed ward III. The Commons attempted to set up a principle of cumulative treason ; but even if the evidence as to all the charges had been legally sufficient, it appeared extremely doubtful whether the crime of- treason could be established. Firmly persuaded that Strafford was an enemy to his country, and, if not technically, yet to all intents and purposes, a traitor, some of the leaders of the Commons resolved to avail themselves of one of the worst precedents of the Tudor times, and to proceed by bill of attainder. Pym and Hampden opposed this course, but were outvoted : Falkland and Hyde, who shortly afterwards became the leaders of the royalist party, eagerly supported the attainder. (See Forster's Historical and Biographical Essays, i. 252.) Fifty-nine members of the Commons voted against the bill when it was introduced in the Lower House, and were in consequence placarded in the streets as ' Straffordians, who, to save a traitor, would betray their country.' The Lords requested the opinion of the judges whether some of the articles of accusation amounted to treason, and received a somewhat indecisively expressed answer which, without distinctly - stating that the prisoner was guilty of treason, declared that ' they were of opinion, upon all which their lordships had voted to be proved, that the Earl of Strafford doth deserve to undergo the pains and forfeitures of high treason by law.' Apprehension of popular tumult prevented more than forty-five peers from attending at the passing of the bill (May 7, 1641), and of these, nineteen voted against it. In the midst of violent anxiety and doubt, Charles I. weakly and ungenerously gave the royal assent, thus sacri. firing the man who had so faithfully served him, and whom he had promised that ' not a hair of his head should be touched. ' ' The execution of Strafford,' as remarked by Earl Russell, ' casts a stain upon all parties in the state. The House of Commons were instigated by passion ; the House of Lords acted from fear ; and Charles from some motive or other, which, at all events, was not the right one. The admission of the mob to overawe the deliberation of Parliament was a sure sign that law was about to be subverted.' (English Government and Constitution, p. 66.) Archbishop Laud. — Impeached of high treason in March, 1641, and sent to the Tower, where he remained until his death. In October, 1643, specific articles were exhibited against him, relating partly to religious matters and partly to the violent proceedings in the Star Chamber and High Commission Court, in which, as a councillor, he had borne a very prominent part. The charges may be summed up under the three heads of endeavouring ( 1) to subvert the fundamental laws of the realm and introduce arbitrary government ; (2) to subvert true religion and introduce Popery ; and (3) to subvert the rights of Parliament. After a long trial and the examination of more than 150 witnesses, there appeared so little likelihood of obtaining a judicial condemnation, that the Commons changed their impeachment into an ordinance (or bill) of attainder. The Peers con- xiii.] James I. to Petition of Right. were hurried by their zeal against Popery and their enthusiasm for the Protestant Elector Palatine, into an 497 suited the judges, who answered ' that they could deliver no opinion in this case in point of law, because they could not deliver any opinion in point of treason but what was particularly expressed to be treason in the Statute of 25 Edwavd III., and so referred it wholly to the judgment of this House.' (Lords' Journ. 17 Dec, 1644.) This was tantamount to a declaration that the charges contained no legal treason ; but the Peers (twenty only were present) passed the bill ; and the Archbishop was beheaded on the loth January, 1644-5. Edward Hyde, Earl of Clarendon, the Lord Chancellor and Chief Minis- Clarendon, ter of Charles II. from the Restoration till his own fall. — Impeached on a a.d. 1667. ' general ' charge of high treason. Of the seventeen articles against him, the most important were the first, the fourth, and the eleventh ; viz., (1) ' That the Earl of Clarendon hath designed a standing army to be raised, and to govern the kingdom thereby, and advised the king to dissolve this present Parliament, to lay aside all thoughts of Parliaments for the future, to govern by a military power, and to maintain the same by free quarters and contributions.' (4) That he 'advised and procured divers of his Majesty's subjects to be imprisoned against law, in remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law, and to produce precedents for the imprisoning any other of his Majesty's subjects in like manner. ' [This charge was undoubtedly true. The arbitrary pro- ceedings of Lord Clarendon gave rise to an agitation which ultimately led to the enactment of the ' Habeas Corpus Act ' in 1679.] (11) That he had advised and effected the sale of Dunkirk (won by Oliver Cromwell from Spain), for a sum much below its value, to Louis XIV. of France. The Lords, declining to follow the precedent of Strafford's case in favour of a ' general charge ' of treason (which the Commons had endeavoured to get up by using the word ' traitorously ' in their impeachment), refused to commit Clarendon to theTower. He fled from justice. In his absence an Act was passed (19 & 20 Car. II. c. 2) commanding him to surrender for trial within a limited time, and in default of appearance banishing him for life, subjecting him to the penalties of high treason if he returned to England, and rendering him incapable of pardon, except by Act of Parliament. Illness prevented Clarendon from appearing within the prescribed time to take his trial, and he died an exile at Rouen in 1674. Thomas Osborne, Earl of Danby. — Impeached of high treason and other Danby, high crimes and misdemeanours. The principal charge against him was his a.d. 1679. having written a letter to Montagu, the English minister at the court of Versailles, empowering him, only five days after an Act had been passed to raise supplies for carrying on the war with France, to make an offer of neutrality between France and Holland for the price of 6,000,000 livres. The impeachment of Danby brought forward several points of great constitutional importance. ' (1) The letter to Montagu had been most un- willingly written by Danby at the express command of King Charles II., who, to satisfy the scruples of his minister, had even subjoined a postscript in his own handwriting— 'This letter is writ by my order, C.R.' As the king's authority for the letter was undeniable, 'the Commons,' as Hallam has observed, ' in impeaching Lord Danby, went a great way towards establishing the principle (recognized by the modern theory of the constitu- tion) that no minister can shelter himself behind the throne by pleading obedience to the orders of his sovereign, ' but is answerable ' for the justice, the honesty, the uiility of all measures emanating from the Crown, as well as for their legality ; ' thus rendering the executive administration subject, in 498 The Stewart Period. [Ch. act which was at once an invasion of the judicial rights of the Lords and a piece of gross and cruel injustice. It all great matters of policy, to the virtual control of the Houses of Parlia- ment. (Const. Hist. ii. 411.) (2) As in the previous instance of Lord Clarendon, a difference arose in this case between the Lords and Commons as to committing the accused to the Tower. The charges against Danby, as specified in the articles of im- peachment, could not be brought within any reasonable interpretation of the statutes relating to treason, and manifestly amounted to no more than a misdemeanour. After an adjourned debate, the Lords refused to commit Danby to the Tower merely on the ' general charge ' contained in the word ' traitorously,' and in the absence of a specific allegation of some overt act of treason. Parliament was shortly afterwards prorogued and then dis- solved ;" but the next House of Commons revived the impeachment, and the Lords then, of their own motion, ordered the nsher of the black rod to take the accused into custody. Although the Lords thus receded from the position which they had originally taken up, their opposition in this case may be said to have checked the practice of general impeachments. (3) Another point raised in this case was the right of pleading the king 1 s pardon in bar of a Parliamentary impeachment. On being called upon to give in his written answer to the charges of the Commons, Danby pleaded a pardon, secretly obtained from the king, in discharge of all the offences of which he was accused. The Commons alleged ' that there was no precedent that ever any pardon was granted to any person impeached by the Commons of high treason, or other high crimes, depending the impeachment ; ' and resolved ' that the pardon so pleaded was illegal and void, and ought not to be allowed in bar of the impeachment of the Commons of England.' (Com. Journ. 28 April and 5 May, 1679.) The question was not settled on this occasion, as Parliament was prorogued and the impeachment not afterwards revived. On both legal and political grounds the Commons would seem to have been right in their contention. Althoughthe king's preroga- tive to grant a pardon, even before trial, was undoubted in all ordinary criminal proceedings by indictment at the king's suit, it was equally un- doubted that in any ' appeal ' or prosecution for felony, not at the suit of the king, but of the injured party or his next of blood, the king had no power to remit the capital sentence. (See ' Appeal,' iupra, p. 121.) If the king could not deprive a private individual of his remedy at law, much less could he -stop an impeachment at the suit of the whole Commons of England. And on political grounds it was clear that if the plea of the accused were admitted, there would be an end to the pre- tended responsibility of the ministers of the Crown, who by the inter- vention of prerogative might be screened from the inquiry and justice of Parliament. Directly after the Revolution the Commons again voted that ' a pardon isnot pleadable in bar of an impeachment,' (Com. Journ. 6 June, 1689) ; but the question was not finally decided till the Act of Settlement (12 & 13 Will. III. c. 2) declared ' that no pardon under the Great Seal of England shall be pleadable to an impeachment by the Commons in Parlia- ment.' The right of the Crown to reprieve or pardon after sentence, remains, however, unaffected. James I. had remitted the whole sentence on Lord Chancellor Bacon ; and after the impeachment and attainder of the six Scottish lords concerned in the rebellion of 1715, three of them received the king's pardon. Indirectly, the Commons possess the power of pardon- ing by refusing to demand judgment after the Lords have found the accused guilty ; for no judgment can be pronounced by the Lords till after it has been demanded by the Commons. (May, Pari. Prac. 662, 7th edit.) (4) The right of the bishops to sit and vote on the trial of peers in capital xiii.] James I. to Petition of Right. 499 came to the knowledge of the House that Edward Floyd, a Roman Catholic banister, then a prisoner in the Fleet, cases was another question raised by the impeachment of Lord Danby. It was admitted that by ancient custom — originating in a claim of privilege by the Church — the bishops never voted on judgment of death. But the Commons contended that as the final judgment often depends upon the preliminary pro- ceedings — as in this case upon the validity of Danby's plea of a pardon in bar — the bishops ought not to vote on such preliminary proceedings. The Lords, however, passed a resolution, which has ever since been adhered to, ' that the Lords Spiritual have a right to stay and sit in court in capital cases till the court proceeds to the vote of guilty or not guilty. ' This is in con- formity with the nth chapter of the Constitutions of Clarendon (nth Hen. II.) which expressly required the bishops to be present on trials, but, in deference to the canon law, excused them from voting when it came to a question of life or limb, ('episcopi sicut caeteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem.') The limited exclusion of the bishops applies only to purely judicial proceedings. They are fully entitled to vote at every stage of a bill of attainder, which, though judicial in substance, is in form a legis- lative act — even though it affect the life of the person attainted. In the attainder of Sir John Fenwick, in 1696, the bishops voted in all the pro- ceedings, including the final question for the passing of the bill. (S) Another point raised for the first time on the trial of Lord Danby was, whether an impeachment abated on the prorogation or dissolution of Par- liament. In 1673 a committee of the Lords appointed to inquire whether 'appeals, either- by writ of error or petition, from the proceedings of any other court, being depending and not determined in one session of Parliament continue in statu quo until the next session,' had reported in the affirma- tive, and their report had received the confirmation of the House. In March, 1678-9, a similar decision was come to by the Lords with regard to the effect of a dissolution of Parliament, as distinguished from a prorogation from ses- sion to session. It was also resolved (with special reference to Lord Danby's case) ' that the dissolution of the last Parliament did not alter the state of the impeachments brought up by the Commons in that Parliament.' (Lords' Journ. March 18th, 19th, 1678-9.) This continued to be the law of Parlia- ment until 1685, when, in order to secure the escape of the ' popish lords ' then under impeachment, the previous resolution was reversed and annulled. (Lords' Journ. May 22nd, 1685.) The lingering impeachment of Lord Danby, which had been continued by the first decision, was put an end to by the last. He had suffered five years' imprisonment in the Tower, not being admitted to bail until 1683. He subsequently took an active part in public affairs under William III., by whom he was created Marquis of Carmarthen and, in 1694, Duke of Leeds. In the following year he was again impeached by the Commons on a charge of corruption ; but the session being suddenly prorogued, no further proceedings were taken. The question of abatement was not finally settled until 1791, when a dissolution having intervened during the impeachment of Warren Hastings, it became necessary for Parliament to review the precedents of former impeachments and to pass its judgment on the contradictory decisions of the Lords. After full discussion, it was voted in both Houses, by large majorities, that by the law and custom of Parliament an impeachment pending in the House of Lords continues in statu quo, from one session and from one Parliament to another, until a judgment shall have been given. Edward Fitzharris.— Impeached by the Commons of high treason. Fitzharris Their real object was to elicit disclosures of a pretended 'popish plot,' and A D> l6gl '_ • so aid the progress of the Exclusion Bill against the Duke of York. In K K 2 5oo The Stewart Period, [CH. had expressed his satisfaction that ' goodman Palsgrave and goodwife Palsgrave ' (the Palatine and his consort) Portland, Or/ore/, Halifax, ana Somers, A.D. 1 701. order to prevent the Commons from interfering in the prosecution, Charles II. had already instructed the attorney-general to proceed against Fitzharris in the King's Bench for a treasonable libel. The attempt of the Commons to take the prosecution out of the hands of the court brought into discussion an important point of constitutional law — viz., whether a commoner could be impeached for a capital offence. The Lords, in the interest of the court, voted that ' Fitzharris should be proceeded with according to the course of common law, and not by way of impeachment.' The grounds of their decision were not stated ; but the fact of his being a commoner appears to have been mainly relied on. They were supported by a supposed authority in the case of Sir Simon de Beresford in the 4th Edward III. Sir Simon, however, was not impeached by the Commons, but charged before the Lords, at the suit of the Crown, of participation in the treason of Roger Mortimer. After giving judgment against him, the Lords made a declaration (which, as being made ' with the' assent of the king in full Parliament,' has been regarded by some as a statute) ' that the aforesaid judgment be not drawn into example or consequence in time to come, whereby the said peers may be charged hereafter to judge others than their peers, contrary to the law of the land.' (2 Rot. Pari. 53, 54-) Even if this declaration amounted to a statute, which was doubtful, it clearly applied to cases similar to that of De Beresford, and not to an im- peachment at the suit of the Commons. In subsequent cases the Lords had violated not only their own declaration, but also Magna Charta and the common law, by trying Commoners for capital offences at the suit ot the Crown. But an impeachment by the Commons is a proceeding of a totally distinct character. The reign of Richard II. afforded several precedents of the impeachment of commoners ; and the right had been exercised, without question, so recently as the time of Charles I. The Commons met the decision of the Lords by voting it ' a denial of justice, a violation of the constitution of Parliament, and an obstruction to the further discovery of the popish plot, and that if any inferior court should proceed to the trial of Fitzharris, it would be guilty of a high breach of the privileges of the House of Commons.' The king shortly afterwards dissolved Parliament, and the prosecution of Fitzharris by indictment in the King's Bench was proceeded with. He pleaded in abatement that an impeachment was then pending against him for the same offence, but the plea was disallowed, and he was found guilty and executed. (8 Howell's St. Tr. 326.) The unconstitutional theory of the Lords put forward in the isolated case of Fitzharris has been superseded by a later decision. After the Revolution, in 1689, Sir Adam Blair and four other commoners were impeached of high treason in having published a proclamation of James II. A committee was appointed to search for precedents ; and after full deliberation, and rejecting a motion requiring the opinion of the judges, the Lords came to a resolution to proceed on the impeachments. (Lords' Journ. xiv. 260 ; May, Pari. Practice, 659.) William Bentinck, Earl of Portland ; Edward Russell, Earl of Orford; Charles Montagu, Earl of Halifax ; and John, Lord Somers, four Whig peers impeached of high treason, by a Tory House of Commons, for their share in promoting the Partition Treaties, and for other alleged illegal practices. The two Houses quarrelled as to the time and mode of the trial ; and as the Commons refused to appear on the day appointed to bring forward their evidence, the impeached ministers were acquitted. Few have pretended to justify these impeachments which ' have generally been xiii.] James I. to Petition of Right. 50i had been driven from the city of Prague. The Com- mons, who suspected James of being very lukewarm in his son-in-law's cause, appear to have been lashed into a sudden paroxysm of rage by this flippant expression. reckoned a disgraceful instance of party spirit.' (Hallam, Const. Hist. iii. 147 ; St. Tr. xiv. 233.) Dr. Sachevertll, rector of St. Saviour's, Southwark- impeached by the Commons for two sermons_ inculcating the doctrine of unlimited passive obedience. A prosecution ' of high importance in a constitutional light, and not only the most authentic exposition, but the most authoritative ratification, of the principles upon which the Revolution is to be defended. ' (Hallam, Const. Hist. iii. 204.) ' The managers appointed by the House of Commons,' says Lockhart, an ardent Jacobite, ' behaved with all the insolence imaginable. In their discourse they boldly asserted, even in her Majesty's presence, that, if the right to the crown was hereditary and in- defeasible, the prince beyond seas (meaning the king), and not the queen, had the legal title to it, she having no claim thereto but what she owed to the people ; and that by the Revolution principles, on which the constitu- tion was founded, and to which the laws of the land agreed, the people might turn out or lay aside their sovereigns as they saw cause. Though, no doubt of it, there was a great deal of truth in these assertions, it is easy to be believed that the queen was not well pleased to hear them maintained, even in her own presence, and in so solemn a manner, before such a great concourse of her subjects. For, though princes do cherish these and the like doctrines whilst they serve as the means to advance themselves to a crown, yet, being once possessed thereof, they have as little satisfaction in them as those who succeed by an hereditary unquestionable title. ' (Lockhart Papers, i. 312, cited by Hallam.) The Lords found Sacheverell guilty by 67 votes to 59 ; but passed only a slight sentence, of suspension from preaching for three years, and that his sermons should be burnt by the hands of the common hangman. Queen Anne afterwards rewarded him with the rich living of St. Andrew, Holborn. He died in I7 2 4» Robert Harley, Earl of Oxford ; Henry St. John, Viscount Bolingbroke; and James Butler, Duke of Ormond. — Tory ministers, impeached by the Commons for their share in negotiating the Peace of Utrecht, in 1713. Bolingbroke and Ormond fled to France, and were attainted in their absence. Oxford alleged in justification the immediate commands of the sovereign for what he had done, a defence which, though it had failed to shelter Danby, and would not be tolerated now, found many supporters in the then unsettled state of the theory of ministerial responsibility. After two years' imprisonment in the Tower Oxford was set at liberty, the Commons, unable to agree with the Lords as to the mode of procedure, having declined to continue the prosecution. This is the last instance of purely political impeachment. The establish- ment of the constant Parliamentary responsibility of ministers ' has prevented the commission of those political crimes which had provoked the indignation of the Commons ; and when the conduct or policy of ministers has been condemned, loss of power has been their only punishment. Hence the rarity of impeachment in later times. The last hundred years present but two cases of impeachment — the one against Mr. Warren Hastings, on charges of misgovernment in India, the other against Lord Melville (in 1804), for alleged malversation in his office. The former was not a minister of the Crown, and he was accused of offences beyond the reach of Parliamentary control ; and the offences charged against the latter had no relation to his political duties as a responsible minister.' (May, Const. Hist. ii. 93.) Sacheverell, A.D. I7IO. Oxford, Boling- broke, and Ormond, A.D. 1715. Warren Hastings, A.D. 1788. Melville, A.D. 1 8O14. 502 The Stewart Period. [Ch. Floyd was condemned by the House to pay a fine of £1000, to stand in the pillory in three different places for two hours each time, and to be carried from place to place on horseback, without a saddle, with his face to the horse's tail and the tail in his hand. The Lords con- sidering this proceeding to be an infringement of their privileges, requested a conference with the Commons. As early as the first year of Henry IV., an entry on the rolls of Parliament had declared that the judicial power of Parliament did not belong to the Commons, 1 and in this very session they had come to a vote, prior to im- peaching Mompesson, that they had no jurisdiction over cases which did not concern the privileges of their House. Without now formally confessing themselves in the wrong, they agreed that the prisoner should be arraigned before the Lords, and entered a declaration in their Journals that the proceedings in the Lower House should not be ' drawn or used as a precedent to the enlarging or diminishing of the lawful rights or privileges of either House.' 2 The Parliament had now sat four months busily engaged in impeachments, enquiries into grievances, and the preparation of bills of reform, but without paying any attention to the king's request for a further supply in addition to the two subsidies already granted. Impatient at the delay and tired of listening to grievances, the king, much to "the chagrin of the Commons, adjourned Parliament till November. Session II. When the Commons re-assembled in November they —Feb 8 f ° V " 2 ° were m anything but a complacent frame of mind. During 1621-2. the recess, proceedings had been taken by the court 1 Supra, p. 174. 2 Pari, or Const. Hist. (2nd ed., 1772) v. 349. By the Lords, Floyd was adjudged, in addition to the punishment of the pillory, to pay a fine of j£5,ooo, to be degraded from the estate of a gentleman and held infamous, to be whipped at the cart's tail from the Fleet to Westminster Hall, and to be imprisoned for life in Newgate. On the following day the whipping was remitted on a motion of Prince Charles. — Lords' Journ. 148. xiii.] James I. to Petition of Right. 5°3 party against Sir Edward Coke and Sir Edwin Sandys, Prosecution of r . ... Coke and two oi the most popular parliamentary orators, which, Sandys. though not ostensibly grounded on their conduct in the House, were believed to be due to that cause. A prose- cution had been commenced against Coke on a charge of misdemeanour connected with the discharge of his late judicial functions, and Sandys had been arrested, together with Selden, his legal adviser, examined before the Council on some secret charge, and kept in confinement for a month. The Commons took up the cause of their Irritation of i -1 , ^, r ^ < tne Commons members with great warmth. The accusers of Coke were thereat. ordered to be taken into custody by the serjeant-at-arms, and a committee was appointed to examine witnesses with the view of establishing the fact of a conspiracy against him, originating in hostility to his political con- duct. Sandys was absent through illness, but although Mr. Secretary Calvert declared that his arrest had no connexion with his speeches in that House, two members were appointed to visit him and solicit a disclosure of the truth. 1 While expressing themselves willing to grant a mode- rate subsidy, the Commons resolved first of all to enter upon the question of grievances. On the proposition of Petition against Sir Edward Coke, a petition was drawn up against the spTnisiniiatch? growth of popery. It asserted that both the Pope and the King of Spain were aspiring to universal dominion, the one in spirituals, the other in temporals ; that to these two powers the English papists looked for support ; and that their hopes had been recently raised by the report of an intended marriage between the prince and the Infanta of Spain ; the House therefore prayed that the king would marry his son to a Protestant princess, and would order an expedition to be sent against that power (meaning Spain) which first maintained the war in the Palatinate. The king having furtively obtained 1 Com. Journ. 643, 644, 662 ; Lingard, ix. 193. 504 The Stewart Period. [Ch. James forbids the House to ' meddle with mysteries of State.' Remonstrance of the Com- mons. The King's reply. a copy of this petition, before its presentation, wrote a peremptory letter to the Speaker, forbidding the House to meddle generally with mysteries of State, and in par- ticular not to speak of his son's match with the princess of Spain, or touch the honour of any prince his friend or ally. Sandys' commitment, he told them, was not for anything in his public conduct : adding, however, ' We think ourself very free and able to punish any man's misdemeanour in Parliament, as well during the sitting as after, upon any occasion of any man's insolent behaviour that shall be ministered to us.' 1 Undismayed by the king's menacing language, the Commons pre- sented to him a strong but respectful justification of their conduct, in which, adverting to that part of the king's message which threatened them for freedom of speech, they claimed the privilege as their ' ancient and undoubted right, and an inheritance received from their ancestors.' 2 In a long, laboured, and sarcastic reply, James dwelt at length on their unfitness for meddling with matters of government far above their reach, com- mended to them the maxim ' ne sutor ultra crepidam,' and concluded by remarking that, ' although he could not allow of the style calling their privilege an ancient and undoubted right of inheritance, but could rather have wished that they had said that their privileges were derived from the grace and permission of his ancestors (for most of them had grown from precedents, which shows rather a toleration than inheritance), yet he gave them his royal assurance that so long as they contained themselves within the limits of their duty, he would be as careful of their lawful liberties and privileges as of his own prerogative, but so that their House did not touch on that prerogative, which would enforce him, or any just king, to retrench their privileges.' 3 1 Pari, and Const. Hist. xv. 492. 2 Id. p. 497. Pari. Hist. v. 507. Dec. 18, 1621. xiii.] James I. to Petition of Right. 5°5 It was impossible for the Commons to leave un- answered this explicit attack upon the essential privileges which they claimed as their' birthright. On the eve of the Christmas recess, they drew up and recorded in their Journal their memorable Protestation of the 18th Decem- ber, 162 1, in these words : — ' The Commons now assembled in Parliament, being Protestation^ justly occasioned thereunto, concerning sundry liberties, franchises, privileges, and jurisdictions of Parliament, do make this Protestation following : — - ' That the liberties, franchises, privileges, and juris- dictions of Parliament, are the ancient and un- doubted birthright and inheritance of the subjects of England : ' And that the arduous and urgent affairs concerning the king, state, and the defence of the realm, and of the Church of England, and the maintenance and making of laws, and redress of mischiefs and grievances, which daily happen within this realm, are proper subjects and matter of counsel and debate in Parliament : ' And that in the handling and proceeding of those businesses, every member of the House of Parliament hath, and of right ought to have, freedom of speech, to propound, treat, reason, and bring to conclusion the same : ' And that the Commons in Parliament have like liberty of freedom to treat of those matters, in such order as in their judgment shall seem fittest : ' And that every member of the said House hath like freedom from all impeachment, imprisonment and moles- tation (other than by the censure of the House itself), for or concerning any speaking, reasoning, or declaring any matter or matters, touching the Parliament, or Par- liament business : ' And that if any of the said members be complained of and questioned for anything done or said in Parlia- ment, the same is to be showed to the king by the advice 5o6 The Stewart Period. [ch: Parliament dissolved, Feb. 8,1621-2. Imprisonment of members. Fourth Parlia- vient, A.D. 1623-4. Feb. 19 — May 29. and assent of all the Commons assembled in Parliament, before the king give credence to any private informa- tion.' 1 Sending for the journals of the Commons, James, in the presence of his council, tore out the obnoxious protestation with his own hand. He dissolved Parlia- ment ; and revenged himself on the ' ill-tempered spirits who by their cunning diversions had imposed on him the necessity of discontinuing it,' by committing Sir Edward Coke and Sir Robert Philips to the Tower and Mr. Selden, Mr. Pym, and Mr. Mallory to other prisons ; while Sir Dudley Digges, Sir Thomas Crewe, Sir Nathaniel Rich, and Sir James Perrot, were sent in a sort of honourable banishment, to act as royal commissioners in Ireland. 3 ' It is worthy of observation,' says Hallam, ' that in this session a portion of the Upper House had united in opposing the court. Their opposition must be reckoned an evident sign of the change that was at work in the spirit of the nation, and by which no rank could be wholly unaffected.' This minority in the Lords included Oxford, Southampton, Essex, Warwick, Say, and Spencer. The Earls of Oxford and Southampton were summoned before the Council, and the former, on pretence of having spoken words against the king, was committed to the Tower. 3 James's fourth and last Parliament met on the 19th February, 1623-4. The abandonment of the projected marriage between the Prince of Wales and the Infanta of Spain, in which the king was reluctantly induced to acquiesce through the interested influence of the favourite Buckingham, rendered the Commons unexpectedly com- placent. James on his part exhibited a condescension equally unusual. He submitted for their consideration and advice, the matrimonial negotiations with Spain, and 1 Pari. Hist. v. 512; Com. Journ. i. 668. 2 Pari, and Const. Hist. v. 525. 3 Const. Hist. i. 369. xiii.] James I. to Petition of Right. 507 the desirability of entering into,a war for the recovery of the Palatinate, and even promised, that if they would ^ grant the money for the war, it should be paid into the hands of treasurers appointed by the Commons, and that he would not treat of peace without previously taking their advice. The Commons voted three subsidies and three fifteenths (about ^300,000) ; and eight citizens of London were appointed treasurers, and ten other selected persons a council of war, all of whom were to be accountable for their conduct to the Commons in Parliament. 1 Besides confirming their right to impeach the ministers of the Crown, by their proceedings against the Earl of Middlesex to which reference has already been made, the Commons, in this session, procured the passing of several salutary statutes, of which the most important was a declaratory ' Act concerning Monopolies, and Dispensa- tions with Penal Laws and the Forfeitures thereof.' All Act against monopolies ; all licences to do, use, or exercise anything ono P° ies » against the tenor or purport of any law or statute, or to agree or compound with others for any penalty or for- feiture limited by any statute ; all grants or promises of the benefit or profit of any forfeiture or penalty due on any statute, made before judgment thereupon had ; and all proclamations, inhibitions, and other proceedings any way tending to the furthering or countenancing of the same or any of them, — were declared to be contrary to the ancient and fundamental laws of the realm, and utterly void. 3 1 Pari. Hist. vi. i-no. 2 2 1 Jac. I. c. 3. It is under an exception contained in this Act that the Crown has since exercised the right of granting letters-patent for new in- ventions, which would otherwise have been included in the general declara- tion against monopolies. It is provided that the Act ' shall not extend to letters-patent and grants of privilege for the term of fourteen years and under, thereafter to be made, of the sole working or making of any manner of new manufactures within this realm to the true and first inventor or inventors of such manufactures, which others, at the time of making such letters-patent and grants, shall not use.' 5o8 The Stewart Period. [Ch. Constitutional results of Jame"s's reign. On the 29th May, 1624, James dissolved his last Par- liament, in which, for the first time throughout his reign, hardly any difference had arisen between the Crown and the Commons. He died on the 27th of March, 1625. The constitutional results of his reign are thus summed up by Hallam': ' The Commons had now been engaged for more than twenty years in a struggle to restore and to fortify their own and their fellow-subjects' liberties. They had obtained in this period but one legislative measure of importance, the late declaratory Act against monopolies. But they had rescued from disuse their ancient right of impeachment. They had placed on record a protestation of their claim to debate all matters of public concern. They had remonstrated against the usurped prerogatives of binding the subject by proclamation, and of levying customs at the out- ports. They had secured beyond controversy their ex- clusive privilege of determining contested elections of their members. Of these advantages, some were evidently incomplete, and it would require the most vigorous exertions of future Parliaments to realize them.' 1 Charles I. 1625 — 1649. His political character. At the age of 25, Charles I. succeeded to the throne on the death of his father, March 27th, 1625. Nurtured from his infancy in the doctrine of the divine right and absolute power of kings, which James I. had so industriously promulgated, and which the Church, the Court, and the Judicial Bench had openly espoused as the true principles of religion and policy, Charles ' came a party man to the throne, and continued an invasion on the people's rights whilst he imagined himself only con- 1 Const. Hist. i. 373. xiii.] James I. to Petition of Right. 5°9 cerned in the defence of his own.' 1 Distrust of his own judgment and too great a deference for the opinions of others, whose ill advice he followed, are the greatest faults admitted by his zealous partisan Lord Cla- rendon. Unhappy in the choice of his councillors — in Buckingham, Strafford and Laud more especially — he certainly was, but it was his own insincerity which contributed more than anything else to embitter the struggle between him and his people, and which in the end effectually closed the door against reconcilia- tion. ' Faithlessness,' observes Macaulay, ' was the chief cause of his disasters, and is the chief stain on his memory. He was, in truth, impelled by an incurable propensity to dark and crooked ways. It may seem strange that his conscience, which, on occasions of little moment, was sufficiently sensitive, should never have reproached him with this great vice. But there is reason to believe that he was perfidious, not only from constitution and from habit, but also on principle. He seems to have learned from the theologians whom he most esteemed that between him and his subjects there could be nothing of the nature of mutual contract ; that he could not, even if he would, divest himself of his despotic authority ; and that in every promise which he made, there was an implied reservation that such promise might be broken in case of necessity, and that of the necessity he was the sole judge.' 2 " The first fifteen months of Charles's reign saw two First Parliament Parliaments successively summoned and abruptly dis» 1625, June 18 solved. Guided by the pernicious counsels of Bucking- Au £- I2 - ham, his heart was set upon a war with Spain, a war which, though approved by the last Parliament of his father, had not yet been declared, and might easily have been avoided. Before commencing hostilities, funds were 1 Bolingbroke,J. 516. 2 Macaulay, Hist. Eng. i. 66. 5io The Stewart Period. [Ch. Its dissolution Aug. 12, 1625. Opposition to Buckingham. Speech of Sir R. Cotton. absolutely necessary, and Charles expected from the Commons a large and unconditional grant. But the members of the Lower House were much more impressed with the necessity of securing the redress of grievances and placing the enjoyment of civil liberty upon a secure basis, than eager for the prosecution of the war. They accordingly doled out supplies very sparingly, granting, in the first Parliament but two subsidies (about ;£ 1 40,000), together with the customs duties of tonnage and poundage for one year only instead of for the king's life as had for two centuries been the practice. 1 They had no intention of refusing a further supply, but were resolved to avail themselves of their constitutional right to make it dependent upon redress of grievances. Pro- fessing themselves ' ready in a convenient time, and in a parliamentary way, to afford all necessary supply to his Majesty upon his present and all other his just occa- sions/ they were equally determined ' freely and duti- fully to do their utmost endeavours to discover and reform the abuses and grievances of the realm and state.' Indignant that they should thus dare to prescribe to him, the king hastily dissolved his first Parliament, and en- deavoured to raise money upon Privy Seals ; but within six months he again found it necessary to seek parlia- mentary aid. One of the chief causes of the late dissolution had been the desire of Charles to screen his favourite Buck- ingham from an anticipated impeachment by the Com- mons. One of the most learned and moderate members, Sir Robert Cotton, in a significant though studiously humble speech, had reminded the House of the control formerly exercised over the king's ministers, and alluded to ' the young and simple counsel ' by which the king was led. ' We do not desire,' he said, ' as 5 Henry IV., or 1 The Lords refused their consent to this limited grant, and Charles caused the tonnage and poundage to be levied without any Parliamentary authority. xiii.] , James I. to Petition of Right. 5 1 1 29 Henry VI., the removing from about the king any evil councillors. We do not request a choice by name, as 14 Edward II., 3, 5, 11 Richard II., 8 Henry IV., or 31 Henry VI.; nor to swear them in Parliament, as 35 Edward I., 9 Edward II., or 5 Richard II.; or to line them out their directions of rule, as 43 Henry III., and 8 Henry VI.; or desire that which Henry III. did pro- mise in his 42nd year, ' se acta omnia per assensum magnatum de concilio suo electorum, et sine eorum assensu nihil.' We only in loyal duty offer up our humble desires, that since his Majesty hath, with advised judgment, elected so wise, religious, and worthy ser- vants, to attend him in that high employment, he will be pleased to advise with them together a way of remedy for these disasters in state r brought on by long security and happy peace ; and not be lead with young and simple counsel.' 1 Care had been taken to prevent several of the most Second Pmiia- popular orators of the last Parliament from sitting in Feb. 6— June' the new assembly by appointing them sheriffs 2 for the '5- year : but this manoeuvre failed in its effect. Irritated more than ever against the favourite, the new Par- guckhfgW ° f liament determined to proceed to his impeachment. Whilst the Commons were preparing materials for the charge, the king sent them word : ' I must let you know The King's that I will not allow any of my servants to be ques- messa £ e - tioned amongst you, much less such as are of eminent place and near unto me.' Buckingham, he assured them, had done nothing without his own special direc- tion and appointment and as his servant. ' I wish,' he added in conclusion, ' you would hasten my supply, or else it will be worse for yourselves ; for if any ill happen, I think I shall be the last that shall feel it.' 3 1 Pari, and Const. Hist. vi. 2 Among them were Sir Edward Coke, Sir Robert Philips, Sir Thomas Wentworth (who had not yet gone over to the court party), and Sir Francis Seymour. 3 Pari, and Const. Hist. vi. 430. ;i2 The Stewart Period. [Ch. Reply of the Commons. Members of the Commons imprisoned. Notwithstanding this haughty message the Commons resolved that three subsidies and three fifteenths should be granted to the king : but with a proviso that the bill of supply should only be brought in after they had pre- sented their grievances and received the king's answer. Addressing the king, they declared 'that it had been the usual, constant, and undoubted right and usage of Parliament to question and complain of all persons, of what degree soever, found grievous to the common- wealth, in abusing the power and trust committed to them by their sovereign. And as to the supply, that though it had been the long custom of Parliaments to handle the matter of supply with the last of their busi- nesses ; yet, at that time, out of extraordinary respect to his person and care of his affairs, they had taken the same into speedy consideration, and had agreed to a resolution for a present supply.' 1 They subsequently agreed to add a fourth subsidy, and prepared a bill to grant the king tonnage and poundage for life, but di- rected that concurrently with it a remonstrance should be drawn up against his taking those duties without the previous grant of Parliament. 2 Buckingham was now formally impeached. 3 Two of the managers on the part of the Commons, Sir John Eliot and Sir Dudley Digges, were committed to the Tower by the king for alleged insolence of speech. The Commons, incensed, declared that they would do no more business, until their members were set at liberty. Sir Dudley Carleton, Vice-Chamberlain of the House- hold, endeavoured to frighten the House into submission by insinuating that the king might very likely be tempted to govern without a Parliament, like the princes on the continent. But the Commons compelled him to apolo- gize, and a large number of peers having assured the 1 Pari, and Const. Hist. vi. 464. 2 Id. vii. 36. 3 Supra, p. 495. xiii.] James I. to Petition of Right. 5 1 3 king that Sir Dudley Digges had not spoken the words imputed to him, the two prisoners were shortly after- wards released. Not content with attacking the privileges of the Com- Attack on the . ' 1 1 privileges of the mons, Charles was imprudent enough to wantonly pro- Lords. voke a quarrel with the House of Lords. For permitting his son, without the king's licence, to marry a daughter of Earl of Arundel, the Duke of Lennox, a lady of royal blood, the Earl of Arundel (an enemy of Buckingham) was committed to the Tower during the session of Parliament. The Lords, resenting this attack upon their privileges, resolved ' that no lord of Parliament, the Parliament sitting, or within the usual times of privilege of Parliament, is to be im- prisoned or restrained without sentence or order of the House, unless it be for treason or felony, or for refusing to give surety for the peace.' After a contest of three months between the king and the lords, Arundel was at length set at liberty. Another enemy whom Buckingham specially feared Earl of Bristol, was the Earl of Bristol, who having been ambassador to Spain at the time of Prince Charles's visit, had it in his power to make most damaging disclosures con- cerning the Duke's conduct there. Charles refused him a writ of summons to Parliament. Bristol complained to the peers of this violation of their common privilege ; and the peers insisting, the king sent the writ, but with a letter forbidding the Earl to avail himself of it on pain of the royal displeasure. This letter he laid before the House of Lords, and the next day the Attorney-General, by the king's order, charged him with high treason at the bar of the House. Bristol retaliated by impeaching the Duke of Buckingham, who thus became the object of two concurrent prosecutions, respectively instituted by the House of Commons and by a former colleague in the late king's service. To protect his favourite, Charles determined to dissolve Hasty dissolu- Parliament. The peers petitioned against this design, ^6. JUM ^' 5H The Stewart Period. [Ch. Expedients to raise money. A general loan demanded and payment enforced. Darnel's case, A.D. 1627. but the king angrily replied ' No, not a minute,' and the dissolution was immediately declared. 1 By this hasty and ill-advised dissolution before the liberal subsidies conditionally promised had been granted, the king found himself without funds to carry on the war with Spain. He again had recourse to the old illegal methods of raising money. Tonnage and poundage were arbitrarily exacted ; commissions were issued to compound with recusants for dispensing with the penal laws ; privy, seals and benevolences were demanded from the rich ; and the seaport towns were ordered to furnish vessels armed and equipped, the first attempt at ship- money. But that which excited the greatest indignation was the levying and exacting of a general loan from every subject, according to the rate at which he had been assessed to the last subsidy. The common people who refused to contribute were punished by impressment into the navy ; many of the gentry were committed to prison ; several regiments of soldiers were sent into different counties and quartered upon the inhabitants ; and in some places martial law was enforced. Of the many persons imprisoned throughout England for refusing the loan, five only, Sir Thomas Darnel, Sir John Corbet, Sir Walter Earl, Sir John Heveningham and Sir Edmund Hampden (cousin of John Hampden, after- wards so celebrated) sued out their writs of habeas corpus in the King's Bench, to which the warden of the Fleet returned that they were detained under a warrant from the Privy Council by special command of the king. This gave rise to a most important discussion as to the sufficiency of such a return as a legal cause of detention ; Noy, Selden, and other eminent counsel for the prisoners, arguing with much ability and learning in favour of the chartered immunity of English subjects from arbitrary detention, against Sir Robert Heath, the Attorney- 1 Pari. Hist. vii. 290. xiii.] James 1. to Petition of Rights 515 General, who upheld the absolute prerogative of the Crown. The judges displayed great moderation and apparent impartiality while the question was being argued, but in the end Sir Nicholas Hyde, Chief Justice, gave the decision of the court in favour of the Crown, and the prisoners were remanded to custody. 1 The temporary triumph of the king was dearly bought at the price of the dismay and indignation which it spread among the people, who saw their fundamental right of personal liberty practically annihilated by this decision. Undeterred by the difficulties which he had encoun- War with tered in providing for the war with Spain, Charles rashly entered, at the instigation of Buckingham, upon a fresh war with France. After the disastrous expedition of the favourite to the Isle of Rhe, the absolute necessity of a large supply forced the king to summon a third Parlia- Third Parlia- ment. Previously to its assembling, it was deemed Session I. advisable to release the persons imprisoned for refusing if 27 ^' T 17 6 the loan. Seventy-eight were thus set at liberty ; of whom twenty-seven were immediately returned to the new Parliament. Charles opened the session with a proud The king's and threatening speech. ' There is none here,' he said, speec ' ' but knows that common danger is the cause of this Par- liament, and that supply, at this time, is the chief end of it. . . . Every man must now do according to his con- science ; wherefore, if you (which God forbid) should not do your duties in contributing what the State at this time needs, I must, in discharge of my conscience, use those other means, which God hath put into my hands, to save that which the follies of some particular men may other- wise hazard to lose. Take not this as a threatening (for I scorn to threaten any but my equals), but an admo- nition from him that, both out of nature and duty, hath most care of your preservation and prosperities.' The Lord-Keeper added : ' This mode (of supply), as his 1 Darnel's case, 3 St. Tr. 1. ; Broom's Const. Law, 162. L L 2 5i6 The Stewart Period. [Ch. Committee of grievances. Common's resolutions. Majesty hath told you, he hath chosen, not as the only way, but as the fittest ; not as destitute of others, but as' most agreeable to the goodness of his own most gracious disposition, and to the desire and weal of his people. If this be deferred, necessity and the sword of the enemy will make way to the others. Remember his Majesty's admonition; I say remember it.' 1 The Commons were not at all disturbed by this menacing language. 'We have come together,' said Wentworth, who was so soon to desert the popular cause, 'firmly deter- mined on vindicating our ancient vital liberties, by reinforcing our ancient laws made by our ancestors ; by setting forth such a character of them as no licentious spirit shall dare to enter upon them.' They at once resolved themselves into a Committee of Grievances to consider ' the liberty of the subject in person and estate.' The principal matters discussed were : (i) illegal exac- tions under the name of loans ; (2) the arbitrary com- mitment of those who refused compliance, and especially the recent decision of the King's Bench remanding Sir Thomas Darnel and others upon a habeas corpus ; (3) the billeting of soldiers on private persons ; and (4) the infliction of punishment by martial law. After passing resolutions ' That no freeman ought to be imprisoned or restrained by command of the king or the Privy Council or any other, except for lawful cause expressed in a lawful warrant ; and that the ancient and undoubted right of every freeman is, that he hath a full and abso- lute property in his goods and estate ; and that no tax, talliage, loan, benevolence, or other like charge, ought to be commanded or levied by the king or his ministers, without common assent of Parliament,' the Commons applied to the Lords for a conference, in order to agree on a petition to the king for a declaratory confirmation of these liberties. For two months the attention of both 1 Pari, and Const. Hist. vii. 339. xiii.] James I. to Petition of Right. 517 Houses, either in conference or in separate debate, was Conference with . r .the Lords, almost exclusively devoted to this momentous subject, which was exhaustively argued by Selden, Coke, Little- ton, Digges, Noy, and other eminent lawyers on the part of the Commons, and by the Attorney-General Heath, Serjeant Ashley and others as counsel for the Crown. In the mean time the Commons, anxious not to give the king any just cause of offence, unanimously voted the unusually large amount of five subsidies (£3 5 0,000), but deferred the passing of a regular money bill until their grievances should be redressed. The king tried hard to satisfy the Commons by offering his royal word not to arrest any one without just cause, or a simple confirmation of the Great Charter and the other ancient statutes in favour of liberty. But Sir Edward speech of Sir Coke warned the House to proceed by bill. ' Was it Edward Coke, ever known,' he said, ' that general words were a suffi- cient satisfaction for general grievances ? The king's answer is very gracious ; but what is the law of the realm ? that is the question. I put no diffidence in his Majesty ; but the king must speak by record, and in particulars, and not in general. Let us put up a Petition of Right ; not that I distrust the king, but that I cannot take his trust, save in a parliamentary way.' 1 The Petition of Right was then drawn up by the Petition of Right Commons. The Lords vainly proposed as an amend- t h e Commons, ment : ' We humbly present this petition to your Majesty, Amendment not only with a care of preserving our own liberties, but Jhe^Lords y with due regard to leave entire that sovereign power wherewith your Majesty is trusted for the protection, safety, and happiness of your people.' This insidious which is dis- saving clause was firmly rejected by the Commons. ' Let ^J^ the us look into the records,' said Mr. Alford, ' and see what Commons, they are : what is " sovereign power " ? . Bodin saith that it is free from any conditions. By this we shall 1 Pari. Hist. viii. 104. I 1 ^ The Stewart Period. [Ch. acknowledge a regal as well as a legal power. Let us give that to the king the law gives him and no more.' ' I am not able,' said Pym, ' to speak to this question, for I know not what it is. All our petition is for the laws of England ; and this power seems to be another distinct power from the power of the law. I know how to add " sovereign " to the king's person, but not to his power ; and we cannot " leave " to him a " sovereign power," for we never were possessed of it.' Sir Edward Coke said : ' This is magnum in parvo. This is pro- pounded to be a conclusion of our petition. It is a matter of great weight ; ' and, to speak plainly, it will overthrow all our petition ; it trenches to all parts of it ; it flies at loans, at the oath, at imprisonment, and at billeting of soldiers : this turns all about again. Look into all petitions of former times ; they never petitioned wherein there was a saving of the king's sovereignty. I know that prerogative is part of the law, but "sovereign power" is no parliamentary word. In my opinion it weakens Magna Charta, and all the statutes ; for they are absolute, without any saving of " sovereign power ;" and should we now add to it, we shall weaken the foundations of law, and then the building must needs fall. Take we heed what we yield unto : Magna Charta is such a fellow, that he will have no " sovereign." I wonder this " sove- reign " was not in Magna Charta, or in the confirmations of it. If we grant this, by implication we give a " sove- reign power " above all laws. Power, in law, is taken for a power with force ; the sheriff shall take the power of the county ; what it means here, God only knows. It is repugnant to our petition ; that is, a Petition of Right, grounded on Acts of Parliament.' In a further con- ference with the Lords, Sir Henry Martyn dwelt with much force upon the moderation displayed by the Commons as a reason for supporting the petition in its integrity. ' The moderate and temperate carriage of the House of Commons in this Parliament,' he said, ' be it xiii. ] y antes I. to Petition of Right. 5*9 spoken without vanity, and yet in much modesty, may seem to deserve your lordships' assistance in this petition ex congruo et condigno ; especially if you would be pleased to consider the discontents, pressures, and grievances, under which themselves in great number, and the parts for which they serve, lamentably groaned, when they first arrived here ; and which was daily represented unto them by frequent packets and advertisements out of their several counties : all which, nothwithstanding, have not been able to prevail upon our moderation, or to cause our passion to overrule our discretions ; and the same yet continueth in our hearts, in our hands, and in our tongues : as appeareth in the mould of this petition, wherein we pray no more but that we may be better treated hereafter. My Lords, we are not ignorant in what language our predecessors were wont to express themselves upon much lighter provocation ; and in what style they framed their petitions : no less amends could serve their turn than severe commissions to inquire upon the violators of their liberties ; banishment of some, execution of other offenders ; more liberties, new oaths of magistrates, judges, and officers, with many other pro- visions written in blood. Yet from us there hath been heard no angry word in this petition. No man's person is named. We say no more than what a worm trodden on would say (if he could speak), " I pray tread on me no more. " ' At length the peers passed the petition without any material alteration, and it awaited only.the royal assent to acquire the force of law. In the meantime Charles The king con- sent for the two chief justices, Hyde and Richardson, and e JU ges ' submitted to them certain questions to be answered by themselves and the other judges. One was ' Whether, if the king grant the Commons' petition, he doth not there- by exclude himself from committing or restraining a subject for any time or cause whatsoever without showing a cause ? ' To this the judges replied, ' Every law '520 The Stewart Period. [Ch. The king's first answer. The royal assent is given in due form. after it is made, hath its exposition, and so this petition and answer must have an exposition as the case in the nature thereof shall require to stand with justice ; which is to be left to the courts of justice to determine, which cannot be particularly discovered until such case shall happen. And although the petition be granted, there is no fear of conclusion as is intimated in the question.' 1 This indirect promise of compliance on the part of the judges was apparently unsatisfactory to the king, who had no intention of really parting with the prerogative of arbitrary commitment. On the 2nd of June, 1628, he attended in the House of Lords to give his answer to the Bill, before the Peers and Commons in Parliament. To the surprise of all men, instead of the usual concise and clear form of words by which a bill receives the royal assent, Charles returned a long and equivocal answer, that 'the king willeth that right be done according to the laws and customs of the realm, and that the statutes be put in due execution, that his subjects may have no cause to complain of any wrong or oppression contrary to their just rights and liberties ; to the preservation whereof he holds himself in conscience as well obliged, as of his prerogative.' Highly incensed at this evasive reply, which was tantamount to a refusal to pass the bill, the Commons gave vent to their ill-humour by impeaching Dr. Mainwaring, 2 and were proceeding to censure the favourite Buckingham, when, on the joint application of the Lords and Commons, the king at length signified the royal assent in the customary form — ' Soit droit fait come est desire ' — which gave to this second great fundamental compact between the Crown and the nation the sanction of an Act of Parliament. 1 Hargrave MSS. xxxii. 97, cited by Hallam. 3 Supra, p. 495. xiii.] James I. to Petition of Right 521 PETITION OF RIGHT. 3 Car. I. c. 1. (7 June, 1628). The Petition exhibited to his Majesty by the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, concerning divers Rights and Liberties of the Subjects, with the King's Majesty's royal answer thereunto in full Parliament. To the King's most Excellent Majesty, Humbly show unto our Sovereign Lord the King, the Lords Spiritual and Temporal, and Commons, in Parliament assem- exactlons - bled, that whereas it is declared and enacted by a statute made in the time of the reign of King Edward I., commonly called Statutum de Tallagio non Concedendo, 1 that no tallage or aid shall be laid or levied by the king or his heirs in this realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonalty of this realm ; and by authority of Parliament holden in the five-and-twentieth year of the reign of King Edward III., 2 it is declared and enacted, that from thenceforth no person should be compelled to make any loans to the king against his will, because such loans were against reason and the franchise of the land ; and by other laws of this realm it is provided, that none should be charged by any charge or impo- sition called a benevolence, or by such like charge f by which statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge, not set by common consent in Par- liament. II. Yet nevertheless of late divers commissions directed to sundry commissioners in several counties, with instructions, have issued ; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your Majesty, and many of them, upon their re- fusal so to do, have had an oath administered unto them not warrantable by the laws or statutes of this realm, and have been constrained to become bound and make appearance and give 1 Supra, p. 236. 2 And see Rot. Pari. ii. 238, No. 1 1. s 1 Ric. III. c. 2. 522 The Stewart Period. [Ch. Arbitrary imprisonment. Billeting of soldiers and utterance before your Privy Council and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted ; and divers other charges have been laid and levied upon your people in several counties by lord lieutenants, deputy lieutenants, commissioners for musters, justices of peace and others, by command or direc- tion from your Majesty, or your Privy Council, against the laws and free customs of the realm. III. And whereas also by the statute called the 'Great Charter of the liberties of England,' it is declared and enacted, that no freeman may be taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. 1 IV. And in the eight-and-twentieth year of the reign of King Edward III., it was declared and enacted by authority of Parliament, that no man, of what estate or condition that he be, should be put out of his land or tenement, nor taken, nor imprisoned, nor disherited, nor put to death, without being brought to answer by due process of law. 2 V. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm to that end pro- vided, 3 divers of your subjects have of late been imprisoned without any cause showed ; and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were de- tained by your Majesty's special command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law. VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm, and to the great grievance and vexation of the people. 4 1 9 Hen. III. c. 29 ; supra, p. 125. 2 28 Edw. III. c. 3. 3 See 37 Edw. III. c. 18, 38 Edw. III. c. 9, 42 Edw. III. u. 3, 17 Ric. II. c. 6. 1 By stat. 31 Car. II. c. I, it is enacted that no officer, military or civil, or other persons, shall quarter or billet any soldier upon any inhabitant of this realm without his consent, and that every such inhabitant may refuse to quarter any soldier, notwithstanding any order whatsoever. The provisions of the Petition of Right and of this statute of Charles II. against billeting xiii.] James I. to Petition of Right. 523 VII. And whereas also by authority of Parliament, in the Martial law. five-and-twentieth year of the reign of King Edward III., it is declared and enacted that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the . land ; and by the said Great Charter and other the laws and statutes of this your realm, no man ought to be adjudged to death, but by the laws established in this your realm, either by the customs of the same realm, or by Acts of Parliament ; and whereas no offender of what kind soever is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm : nevertheless of late time divers commissions under your Majesty's Great Seal have issued forth, by which certain persons have been assigned and ap- pointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial. VIII. By pretext whereof some of your Majesty's subjects have been by some of the said commissioners put to death, when and where, if by the laws and statutes of the land they had deserved death, by the same laws and statutes also they might, and by no other ought, to have been judged and executed. • IX. And also sundry grievous offenders, by colour thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretence that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid ; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm. X. They do therefore humbly pray your most excellent Remedies Majesty that no man hereafter be compelled to make or yield frayed for: any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the are annually suspended by the Mutiny Act, which expressly gives permis- sion to billet soldiers in inns and victualling houses. 524 The Stewart Period. [Ch. as their rights and liberties according to the laws and statutes. same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained ; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come ; and that the aforesaid commissions, for pro- ceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be de- stroyed or put to death contrary to the laws and franchise of the land. XL All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm ; and that your Majesty would also vouch- safe to declare, that the awards, doings, and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further com- fort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom. Qua quidem petitione lecta et plenius intellecta per dictum do- minum regem taliter est responsum in pleno parliamento, viz., Soit droit fait come est desir'e. (Statutes of the Realm, v. 24.) Subsidies granted. Tonnage and poundage. Parliament prorogued. Session II. 1628-9. 20 Jan. — 10 March. The Commons were triumphant ; and grateful amidst their rejoicings. They immediately passed a bill grant- ing the five subsidies already promised ; and were pre- paring another giving the king tonnage and poundage for life, but delayed its passing in order to remonatrate against the continued illegal levying of those duties without the sanction of Parliament. To prevent the deli- very of this remonstrance the king suddenly prorogued Parliament. On the 20th of January, 1628-9, the two Houses re- assembled. During the recess the king had continued, in direct violation of the Petition of Right, to raise the cus- toms duties as before, and several merchants, on refusal to pay, had been punished by distraint of their goods and mprisonment. On appealing to the courts of law, they xiii.] James I. to Petition of Right. 525 were informed by the judges that the king's right was conclusively established by the decision in Bates's case. The natural irritation of the Commons was increased on hearing that the king, with extraordinary meanness, had caused 1,500 copies of the Petition of Right to be circulated throughout the country with his first and repudiated answer annexed, while all copies con- taining- the true answer had, been suppressed. They refused to grant further supplies until the unconstitu- tional impostition of tonnage and poundage had been given up. When Sir John Eliot proposed a resolution on the subject, the Speaker alleged the king's command not to put any such question to the vote, and imme- diately left the chair. The whole House was now in an uproar. Hollis and Valentine forcibly held the Speaker in his seat, while the House tumultuously passed three Tlle t]lree hastily prepared resolutions, declaring (1) that the intro- resolutions. ducers of Popery, or Arminianism, or other opinions dis- agreeing from the true orthodox Church ; (2) that all who should counsel or advise the taking and levying of tonnage and poundage not being granted by Parliament, or should be actors or instruments therein ; and (3) that all merchants or others who should voluntarily pay the same, — should be reputed capital enemies to the king- dom and commonwealth. The House at its rising adjourned to the 10th of March. Parliament 1 it-it • dissolved, On that day the king dissolved Parliament in person, 10 March. with an angry reference to the ' disobedient carriage of the Lower House,' and a threat that ' the vipers amongst them should meet with their reward.' 1 1 Pari, and Const. Hist. viii. 333. CHAPTER XIV. FROM THE PETITION 01? RIGHT TO THE RESTORATION. Determination of Charles I. to govern without a Parliament intimated in a proclamation. Imprisonment of Sir John Eliot, Selden, and other members of the Commons. (A.D. 1 629- 1 660.) On the dissolution of his third Parliament, Charles I. appears to have come to a settled determination to over- throw the old parliamentary constitution of England by governing for the future without the intervention of the national council. In an arrogant Proclamation, referring to certain false rumours that he was about again to call a Parliament, he announced that ' the late abuse having driven him unwillingly out of that course, he should account it presumption for any to prescribe any time to him for Parliaments, the calling, continuing, and dissolv- ing of which was always in his own power. He should be more inclinable to meet a Parliament again, when his people should see more clearly into his intents and actions, and when such as had bred this interruption should have received their condign punishment.' 1 Even before the actual dissolution, the king had hastened to take vengeance on the opposition 'vipers.' Sir John Eliot, Selden, Hollis, Long, Valentine, Strode, and other eminent members of the Commons were summoned before the Council and committed to prison. Against Eliot, Hollis, and Valentine an information was filed in the King's Bench. On suing out their writ of habeas Rymer, XIX. 62. Ch. xiv.] Petition of Right to Restoration. 5 2 7 corpus they were by the king's order removed to the Tower, so as to elude the judgment of the court. On being required to plead to the information, they demurred to the jurisdiction of the court on the ground that as their alleged offences had been committed in Parliament, they were not punishable in any other place. This demurrer, which raised the great question of Parlia- mentary privilege, was overruled ; and as the -defendants persisted in their refusal to plead, judgment was given that they should be imprisoned during the king's pleasure, and not released until each had given surety for good behaviour and had made submission. In addition, Eliot, as the ringleader, was fined £2,000, Hollis, £1,000, and Valentine, £500. ' Other distinguished Some of the leaders of the opposition had been brought over to the acce^offiw:. 5 ' king's side by the gift of office. Sir Dudley Digges was made Master of the Rolls ; Noy, Attorney-General ; and Littleton, Solicitor-General ; Wentworth, created first a baron, then a viscount, and subsequently Earl of Strafford, was made President of the Council of the North, and Lord Deputy of Ireland. Surrounded by these new councillors, and guided Eleven years of chiefly by the advice of Wentworth and Laud, Charles m e ^° lc ^ vem " now entered upon a career of despotism which he main- tained for eleven years. This period, during which the king governed without the Parliament, was, constitu- tionally speaking, as much a revolutionary period as that during which, later on, Parliament governed without the king. It should always be borne in mind that it was the aggression of Charles which provoked the counter aggression of the Parliament. To raise a revenue, Charles had recourse to various Expedients to exactions, many of which were clearly illegal, and nearly raise a revenue - all odious and vexatious. ' Obsolete laws,' says Claren- 1 Eliot died in prison some years afterwards, universally regarded as a martyr in the cause of liberty. See supra, p. 298, and Forster's Life of Sir John Eliot. 528 The Stewart Period. [Ch. Tonnage and poundage. Monopolies. Compulsory knighthood. Inquisition into titles to estates. Forest laws revived. Royal procla- mations. don, ' were revived and rigorously executed,' and ' unjust projects of all kinds, many ridiculous, many scandalous, all very grievous, were set on foot.' Tonnage and poundage and other duties were rigorously enforced by the royal authority alone. Monopolies, abolished by Act of Parliament in the last reign, were re-established and applied to almost every article of ordinary consump- tion. The ancient prerogative of compelling tenants in chivalry to receive the order of knighthood or pay a fine was revived, arid extended to all men of full age seised of lands or rents (by whatever tenure) of the annual value of £40 or more. 'By this expedient,' says Clarendon, ' which, though it had a foundation in right, yet in the circumstances of proceeding was very grievous, the king received a vast sum of money from persons of quality, or of any reasonable condition, throughout the kingdom.' 1 Commissioners were appointed to search out and compound for defects in titles to estates ; and an attempt was even made to revive the ancient and odious Forest Laws. Under cover of the rule of law that no length of prescription could be pleaded in bar of the king's title, the boundaries of the royal forests were so extended that the forest of Rockingham alone was increased from six to sixty miles in circuit at the expense of the neighbouring landowners, who, at the same time, were mulcted in enormous fines for alleged encroachments, some of which were from three to four hundred years' standing. 3 ' This burthen,' says Claren- don, ' lighted most upon people of quality and honour, who thought themselves above ordinary oppression, and were like to remember it with more sharpness.' 3 In lieu of Acts of Parliament, royal proclamations, 1 Hist. Rebellion, i. 67 ; supra, p. 148. 2 On this ground Lord Salisbury was fined £20,000 ; Lord Westmore- land, £19,000; Sir Christopher Hatton, ,£12,000; Sir Lewis Watson, £4,000 ; and many other persons in smaller amounts. — Strafford's Letters, ii. 117. Cobbett's Pari. Hist. ii. 642. 3 Clar. Hist. i. 16. xiv.] Petition of Right to the Restoration. 529 much more numerous arid oppressive than those which had excited so much opposition under James I., were issued from time to time and declared to have the force of laws. The common law judges, with a few honourable Servility of the" exceptions, upheld by their decisions the illegal acts of J ud s es - the king ; whilst the irregular tribunals, the courts of Star Chamber and High Commission, by extending their authority and exercising a vigilant and severe coercive jurisdiction- whenever the slightest opposition was manifested against the civil tyranny of the king or the ecclesiastical tyranny of Laud, maintained for some years what may not unfairly be designated as a reign of terror. 1 Of the barbarous and tyrannical punishments in- Punishments in- flicted by the court of Star Chamber it will be sum- StoChJmber. cient to refer to a few only of the more celebrated instances. (1.) John Williams, Bishop of Lincoln, who, Case of Bishop r r 1 t-> I.-,* .1 Williams and as a favourer of the Puritans, had excited the enmity of Osbaldiston. Laud, had received certain letters from one Osbaldiston, the master of Westminster School, wherein some con- temptuous nickname was applied to the Archbishop. For concealing (not publishing) this libellous letter, Williams was condemned to pay £5000 to the king, and .£3000 to Laud, and to be imprisoned during pleasure. A few days afterwards he was suspended from his office by the High Commission Court. Osbaldiston was adjudged to pay a still heavier fine, to be deprived of his 1 ' For the better support of these extraordinary ways,' says Lord Clarendon, ' and to protect the agents and instruments who must be em- ployed in them, and to discountenance and suppress_ all bold inquiries and opposers, the Council-table and Star Chamber enlarged their jurisdictions to a vast extent, "holding (as Thucydides said of the Athenians) for honourable that which pleased, and for just that which profited ; " and being the same persons in several rooms, grew both courts of law to determine right, and courts of revenue to bring money into the Treasury ; the Council-table by proclamations enjoining to the people what- was not enjoined by the law, and prohibiting that which was not prohibited ; and the Star-Chamber censuring the breach and disobedience to those proclamations by very great fines and imprisonment ; so that any disrespect to any acts of State, or to the persons of statesmen, was in no time more penal, and those foundations of right, by which men valued their security, to the apprehension and under- standing of wise men, never more in danger to be destroyed.' — Hist. i. 68. M M 53° The Stewart Period. [Ch. benefices, and to be imprisoned until he should make submission. In addition he was to stand in the pillory, with his ears nailed to it, in front of his school in Dean's Leighton. Yard. (2.) Alexander Leighton, a Scottish divine, for publishing an erudite but scurrilous book entitled ' An Appeal to Parliament, or Sion's Plea against Prelacy,' was sentenced to pay a fine of £10,000, to be degraded from orders, to be whipped at Westminster and set in the pillory, to have one ear cut off, one side of his nose slit, and one cheek branded with S.S., (for Sower of Sedition,) to have the whole of this repeated the next week at Cheapside, and to suffer imprisonment Lilbume. for life. 1 (3.) For distributing pamphlets against the bishops, Lilbume, a London apprentice (who after- wards fought with great bravery in the parliamentary army, and attained the rank of lieutenant-colonel), was severely whipped from the Fleet to Westminster, set in the pillory, and kept in prison until released three Prynne, Burton, years afterwards by the Long Parliament. (4.) But and Bastwick. the case ^jch excited the greatest popular indigna- tion was that of Prynne, Burton, and Bastwick, who were together brought before the Star Chamber in 1637. Prynne, a barrister of Lincoln's Inn, of great learning, but a bigoted Puritan, had already suffered, in 1633, for publishing a ponderous tome of 1000 pages, entitled ' Histriomastix,' condemning stage plays, May games, and similar diversions. Unfortunately for Prynne, the queen, six weeks after the publication of his book, took part in a masque at court. A passage reflecting on female actors was now unfairly alleged to be an inten- tional insult to her Majesty ; and Prynne was condemned to stand twice in the pillory, to lose both ears, to pay a fine of £5000, to be degraded from the bar and at the University, and to be imprisoned for life. While in prison he managed to elude the prohibition of pen, ink 1 State Tr. iii. 383. xiv.] Petition of Right to the Restoration. 531 and paper, and published some fresh works in defence of his principles which caused him to be again brought before the Star Chamber. The offence of Burton, a London rector, was the publication of two sermons, and also a pamphlet entitled ' News from Ipswich,' containing charges of Romish innovations against Wren, Bishop of Norwich. Bastwick, a physician, was already, like Prynne, undergoing punishment for a former offence. Some years previously he had published a Latin work called 'Elenchus Papismi et Flagellum Episcoporum,' in answer to a book written by one Short, a papist, in support of his religion. For this he was sentenced by the High Commission Court to a fine of ^1000, to be debarred his practice of physic, to be excommunicated, and imprisoned until he should make recantation. .While in gaol he published a defence of himself and an acri- monious attack upon his prosecutors, and for this publi- cation he was summoned, at the same time as Prynne and Burton, before the Star Chamber. It was at first intended to proceed against the three for high treason, but the judges, on being consulted, had the courage to declare that their libels against the bishops did not amount to treason. The accused were all fined ^5000 each, condemned to the pillory, to lose their ears, to be branded on both cheeks', and to be imprisoned for life, without access to kindred or friends, and without books or writing materials. The sentence ,was executed in the most savage manner ; the stumps of Prynne's ears, which had been mercifully spared by the hangman on the former occasion, being now pared off so closely as to endanger his life. So great was the sympathy expressed for them in London, and even in some country districts, that the Council deemed it prudent to send Prynne to Jersey, Burton to Guernsey, and Bastwick to Scilly, where they remained in close confinement until released by order of the Long Parliament. 1 1 Brodie, Hist. Brit. Empire, ii. 334. Several other instances of the M M 2 532 The Stewart Period. [Cur Case of ship- Shortly before these proceedings against Prynne, a money ■ decision had been pronounced by the Exchequer Chamber, in the famous case of Ship-money, by which the whole property of the English people was placed at the disposal of the Crown. The idea of ship-money originated in the ' venal dili- gence and prostituted learning ' of Sir William Noy, the Attorney-General. Among the records in the Tower he had found ancient writs compelling the sea-ports and even maritime counties to provide ships for the use of the king : and upon these precedents he devised a plan by which a large fleet might be procured without any additional charge upon the revenue. In October, 1634, writs were issued to the magistrates of London and other ports prdering them to provide a certain number of ships of war of a specified tonnage and equipage, and empower- ing them to assess all the inhabitants, according to their substance, for a contribution towards this armament. Notwithstanding the remonstrances of London and some other towns, obedience was enforced by the im- prisonment of such persons as refused to pay their share of the assessment, and the experiment proved a great success. Although it was a direct violation of the Petition of Right, this expedient had some show of precedent in its favour ; and there was moreover an evident necessity at the time for a powerful fleet to repress as well the depredations of the Algerine pirates, who had become bold enough to infest the coasts both of England and Ireland, as the insolence of the Dutch, who had taken advantage of the naval weakness of England to dispute the ancient right of the English Crown to the dominion of the narrow seas. 1 Noy died merciless punishments inflicted by the Star Chamber are enumerated in the 4th chapter of Mr. Brodie's 2nd vol. 1 It was to uphold these claims of the Dutch that Grotius wrote his celebrated ' Mare Liberum,' which was answered by Selden in his ' Mare Clausum,' proving that the sovereignty of the narrow seas had belonged to England from the earliest times. xiv.] Petition of Right to the Restoration. 53 soon after suggesting the expedient of ship-money, but Lord-Keeper Finch improved upon the original scheme by advising an extension of the writs from the sea-ports to the whole kingdom. Clarendon admits that this tax was intended not merely for the support of the navy, but ' for a spring and magazine that should have no bottom, and for an everlasting supply of all occasions.' 1 Writs were accordingly sent to the sheriff of every county in England and Wales ordering him to provide a ship of war of a prescribed tonnage, armed and equipped for the king's service ; but as it was never intended that an actual ship should be provided, instructions were sent with each writ commanding the sheriff, instead of a ship, to levy upon his county a specified sum of money, and return the same to the Treasurer of the Navy for his Majesty's use, with directions to enforce payment by compulsory process. During four years the tax was annually exacted, producing a revenue of over £200,000. The people murmured, but were obliged to yield to the overbearing power of the Crown. Several attempts were made to raise the question of the legality of the levy in the courts of law, but the Crown always found means to elude the discussion. At length John Hampden, a gen- Hampden's tleman of ancient family and good estate in Bucking- re usa ° pay ' - hamshire, succeeded in obtaining a judicial decision upon the point of law. Having refused to pay the sum of 20s. assessed upon a portion of his estate, proceedings were instituted against him in the Exchequer, to which he appeared and demurred to the writ as insufficient in law. ' Till this time,' says Clarendon, ' he was rather of reputation in his own country than of public discourse or fame in the kingdom : but then he grew the argument of all tongues, every man inquiring who and what he was that durst, at his own charge, support the liberty and prosperity of the kingdom.' 2 The king awaited the 1 Hist. i. 68. 2 Hampden, who was a cousin of Oliver Cromwell, had sat in Charles's 534 The Stewart Period. [Ch. Extra-judicial opinion of the judges. Arguments on the case. decision of the judges with confidence. Some time pre- viously he had privately submitted to them the following questions : ' When the good and safety of the kingdom in general is concerned and the whole kingdom is in danger ; whether may not the king by writ under the Great Seal of England, command all the subjects of this kingdom, at their charge, to provide and furnish such number of ships, with men, victuals, and munitions, and for such time as he shall think fit, for the defence and safeguard of the kingdom from such danger and peril ; and by law compel the doing thereof in case of refusal or refractoriness ? And whether, in such case, is not the king sole judge, both of the danger, and when and how the same is to be prevented and avoided ?' The judges (with the exception of Crooke and Hutton, who however subscribed their names. on the principle that thejudg-. ment of the majority was that of the whole body) an- swered in favour of the prerogative : and this extra- judicial opinion was by the king's order publicly read in the Star Chamber, and enrolled in all the courts at Westminster. 1 During twelve days the great case was argued in the Ex- chequer Chamber, by the celebrated Oliver St. John and Mr. Holborne as counsel for Hampden, by the Attorney- first three Parliaments. For refusing to contribute to the general loan in 1626, on the ground that 'he feared to draw upon himself that curse in Magna Charta which should be read twice a year on those who infringe it,' he was committed to prison, but regained his freedom in time to be re- elected to the Parliament of 1628. In the Long Parliament he sat for Buckinghamshire, and on the breaking out of the civil war took a colonel's commission in the Parliamentary army. He died, 24th June, 1643, of wounds received in a skirmish at Chalgrove, near Oxford, six days previously. 1 On this opinion of the judges Strafford wrote : 'Since it is lawful for the king to impose a tax towards the equipment of the navy, it must be equally so for the levy of an army ; and the same reason which authorizes him to levy an army to resist will authorize him to carry that army abroad, that he may prevent invasion. Moreover, what is law in England is law also in Scotland and Ireland. This decision of the judges will therefore make the king absolute at home and formidable abroad. Let him only abstain from war a few years, that he may habituate his subjects to the payment of this tax, and in the end he will find himself more powerful and respected than any of his predecessors.' — Strafford Papers, ii. 61. xiv.] Petition of Right to the Restoration. 53 General Bankes and the Solicitor-General Littleton on behalf of the Crown. On the part of Hampden it was maintained : (I.) That the law and constitution of Eng- land had provided certain known and undoubted means for the defence of the realm whether by sea or land. (a.) The military tenures of land bound a large part of the kingdom to a stipulated service at the charge of the holders. The Cinque Ports also, and some other towns held by an analogous tenure, were bound to furnish a quota of ships or men in return for the special privileges which they enjoyed, (b) In addition to these services in kind for defence by land and sea, things coming to the king by prerogative, as the profits arising from the feudal tenures, and various other emoluments received in right of the Crown, were applicable so far as they would ex- tend to the public use. (c.) The king moreover had been specially provided with particular supplies of money for defence of the sea in time of danger, as the customs on wool and leather, tonnage and poundage. With regard to the legality of the modern impositions, far in excess of the ancient use, Mr. St. John said he did not intend to speak : ' for in case his Majesty may impose upon merchandise what himself pleaseth, there will be less cause to tax the inland counties ; and in case he cannot do it, it will be strongly presumed that he can much less tax them.' (II.) When these ordinary revenues proved insufficient, the constitution had provided other sufficient and lawful means— viz., aids and subsidies granted in Parliament. To these the kings of England had at all times habitually had recourse. ' For as,' said St. John, 'without the assist- ance of his judges, his Majesty applies not his laws, so neither without the assistance of his great council in Parliament can he impose.' The fact that our kings also obtained supplies of money by loans on promise of re- payment, or by benevolences which were in the nature of alms from their subjects, afforded additional proof that 53 6 The Stewart Period. [Ch. they possessed no prerogative of general taxation. It is rare in a subject, and more so in a prince, to ask and take that as a gift, which he may and ought to have of right. (III.) But the most conclusive and irrefutable argu- ment was founded on the long series of statutes, con- cluding with the recently granted Petition of Right, by which, in most emphatic language, it was provided that no tax should be levied on the subject without the con- sent of Parliament. (IV.) As to the precedents alleged on the Crown side, it was answered that most or all of them applied to sea- towns and havens ; and that it appeared that the inland counties had not so much as de facto been usually charged for ships. But even if precedents could be adduced, they could not be upheld in the teeth of so many statutes. The question was not what had been done de facto, for many things had been done which were never allowed, but what had been done, and might be done, de jure. Judicandum est legibus non exernplis. (V.) Lastly, admitting that in a case of over-ruling necessity, as of actual invasion, or its immediate pro- spect, not only the sovereign, but each man in respect of his neighbour, might do many things absolutely illegal at other seasons, yet in the present case there was no overwhelming danger ; the nation was at peace with all the world ; and it would be absurd to reckon the piracies of a few Turkish corsairs among those instant perils for which a Parliament would provide too late. Judgment for The twelve judges took some time for deliberation, tie Crown. an( j d e ii verec i their judgments during the three next terms, four in each term. Seven pronounced in favour of the Crown, and five in favour of Hampden ; so that the majority against him was the least possible. Of the five who decided for Hampden, three based their judg- ments upon merely technical grounds peculiar to his particular case: but the other two, Crooke and Hutton, xiv.] Petition of Right to the Restoration. 537 boldly denied the right claimed by the Crown, without the smallest qualification. The elaborate and learned judgment of Sir George Crooke was grounded upon the following reasons : 1st. That the command by the king's writ to have ships at the charge of the inhabitants of the county was illegal and contrary to the common law, not being by authority of Parliament. 2ndly. That if at the common law it had been lawful, yet this writ was illegal, being expressly contrary to divers statutes prohibiting a general charge to be laid upon the Commons without consent in Parliament. 3rdly. That it was not to be maintained by any prerogative, nor allegation of neces- sity or danger. 4thly. Admitting it were legal to lay such a charge upon maritime ports, yet to charge any inland county, as the county of Bucks, for making ships, and furnishing them with mariners, &c, was illegal, and not warranted by any precedent. On the other hand> several of the judges who pronounced for the Crown, finding it almost impossible to elude the force of the numerous prohibitory statutes, rested their decision upon the intrinsic absolute authority of the king, and the inability of Parliament to limit the high prerogative of the Crown. Mr. Justice Crawley said : ' This imposition without Parliament appertains to the king originally, and to the successor ipso facto, if he be a sovereign in right of his sovereignty from the Crown. You cannot have a king without these royal rights.' ' Where Mr. Holborne,' said Mr. Justice Berkley, ' supposed a funda- mental policy in the creation of the frame of this king- dom, that, in case the monarch of England should be inclined to exact from his subjects at his pleasure, he should be restrained, for that he could have nothing from them but upon a common consent in Parliament, he is utterly mistaken herein. The law knows no such king-yoking policy. The law is itself an old and trusty servant of the king's, it is his instrument or means which he useth to govern his people by : I never read nor 53 8 The Stewart Period. \Qn. heard that Lex was Rex ; but it is common and most true that Rex is Lex.' ' The king, pro bono publico,' said Vernon, another judge, ' may charge his subjects, for the safety and defence of the kingdom, notwith- standing any Act of Parliament, and a statute derogatory from the prerogative doth not bind the king : and the king may dispense with any law in cases of necessity.' Sir John Finch, Chief Justice of the Common Pleas, who had himself advised the extension of the writs of ship- money to inland counties, followed in the same strain : ' No Act of Parliament,' he said, ' can bar a king of his regality, as that no lands should hold of him ; or bar him of the allegiance of his subjects ; or the relative on his part, as trust and power to defend his people : there- fore Acts of Parliament to take away his royal power in the defence of his kingdom are void ; they are void Acts of Parliament to bind the king not to command the subjects, their persons, and goods, and I say their money too ; for no Acts of Parliament make any difference.' 1 Effect of this Charles had little cause for rejoicing at the legal deci- judgment. g j on j n j^ f avour jt s on \y effect was to make Hampden the most popular man in England, and to strengthen and widely extend the public indignation. ' It is notoriously known,' says Lord Clarendon, 'that pressure [ship-money] was borne with much more cheerfulness before the judg- ment for the king than ever it was after ; men before pleasing themselves with doing somewhat for the king's service, as a testimony of their affection, which they were not bound to do, many really believing the necessity, and therefore thinking the burthen reasonable ; others ob- serving that the advantage to the king was of import- ance, when the damage to them was not considerable, and all assuring themselves that when they should be weary, or unwilling to continue the payment, they might 1 3 St. Tr. 825 ; Broom, Const. Law, 306 ; Hallatn, Const. Hist. ii. 18. xiv.] Petition of Right to the Restoration. 539 resort to the law for relief, and find it. But when they heard this demanded in a court of law, as a right, and found it, by sworn judges of the law, adjudged so, upon such grounds and reasons as every stander-by was able to swear was not law, and so had lost the pleasure and delight of being kind and dutiful to the king, and instead of giving were required to pay, and by a logic that left no man anything which he might call his own ; they no more looked upon it as the case of one man, but the case of the kingdom, nor as an imposition laid upon them by the king, but by the judges, which they thought them- selves bound in conscience to the public justice not to submit to. It was an observation long ago by Thucy- dides, " that men are more passionate for much injustice than for violence, because," says he, " the one coming as from an equal seems rapine, when the other, proceeding from one stronger, is but the effect of necessity." So, wh£ n ship-money was transacted at the Council Board, they looked upon it as a work of that power they were all obliged to trust, and an effect of that foresight they were naturally to rely upon. Imminent necessity and public safety were convincing persuasions ; and it might not seem of apparent ill-consequence to them, that upon an emergent occasion the royal power should fill up an hiatus, or supply an impotency in the law. But when they saw in a court of law (that law that gave them title to, and possession of, all that they had) reason of state urged as elements of law, judges as sharp-sighted as secretaries of state, and in the mysteries of state ; judg- ment of law grounded upon matter of fact, of which there was neither inquiry nor proof, and no reason given for the payment of the thirty shillings in question, but what included the estates of all the standers-by ; they had no reason to hope that doctrine, or the promoters of it, would be contained within any bounds, and it was no wonder that they, who had so little reason to be pleased with their own condition, were no less solicitous for, or 540 The Stewart Period. [Ch. apprehensive of, the inconveniences that might attend any alteration. 'And here the damage and mischief cannot be ex- pressed that the Crown and State sustained, by the deserved reproach and infamy that attended the judges, by being made use of in this and like acts of power ; there being no possibility to preserve the dignity, reverence, and estimation of the laws themselves,' but by the integrity and innocency of the judges. And no question, as the exorbitancy of the House of Commons, in the next Parliament, proceeded principally from their contempt of the laws, and that contempt from the scandal of that judgment: -so the concurrence of the House of Peers in that fury, can be imputed to no one thing more than to the irreverence and scorn the judges were justly in, who had been always before looked upon there as the oracles of the law, and the best guides to assist that House in their opinions and actions. And the Lords now thought themselves excused for swerving from the rules and customs of their predecessors (who, in altering and making of laws, in judging of things and persons, had always observed the advice and judgment of those sages) in not asking questions of those whom they knew nobody would believe ; thinking it a just reproach upon them (who, out of their councilship, had submitted the difficulties and mysteries of the law to be measured by the standard of what they called general reason, and explained by the wisdom of state) that they themselves should make use of the licence, which the others had taught them, and determined that to be law which they thought to be reasonable, or found to be con- venient. If these men had preserved the simplicity of their ancestors, in severely and strictly defending the laws, other men had observed the modesty of theirs, in humbly and dutifully obeying them.' 1 1 Hist. Rebell. i. 69. xiv.] Petition of Right to the Restoration. 54 x It was not long after the condemnation of Hampden The Scottish , rebellion. that Charles entered upon his rash and illegal attempt to change the ecclesiastical constitution of Scotland, and to force upon the people of that kingdom a liturgy which the great body of them regarded with fanatic abhorrence. The Scots took up arms in defence of their religious freedom. By the ignominious pacification of Berwick (18th June, 1639), the contest was only adjourned, and both sides almost' immediately began to prepare for a renewal of the war. In this emergency, the real impo- Distress of the tence of the king's arbitrary system of government s became apparent. The illegal methods of supply so long practised proved utterly inadequate for the support of an army, and the king, after eleven years of despotic rule, most reluctantly yielded to the advice of his council and issued writs for a Parliament which met on the 1 3th April, 1640. It is remarkable that the House of Commons which Fourth (the met after so long a period of arbitrary misgovernment, m Zt, i6%>'' 1 ' was admitted on all sides to be one of the most moderate A P ril 1 S~- May 5. and loyal assemblies which had been known for many i ts moderation years. 'The House generally,' says Clarendon, 'was and loyalty. exceedingly disposed to please the king and to do him service. It could never be hoped,' he remarks elsewhere, 'that more sober or dispassionate men could ever meet together in that place, or fewer who brought ill purposes with them.' 1 Charles pressed for an ample and imme- C j,arles diate supply, and pledged his word that if the Commons demands an would gratify him with the despatch of this matter, he sup pi y . would give them time enough afterwards to represent any grievances to him. But the Commons, led by Pym xhe Commons and Hampden, and mindful how shamefully the royal insist on redress • 1 11 11 °f grievances. word had been already violated, snowed a thorough determination to have their accumulated grievances redressed before voting supplies. They declared that the 1 Clarendon, Hist. i. 139. 542 The Stewart Period. [Ch. Speech of Edmund Waller. Committee to confer with the Lords on griev- ances. A question of privilege. conduct of the Speaker on the last day of the former Parliament, jn refusing, at the alleged command of the king, to put the question ; and the prosecution and imprisonment of Eliot, Hollis, and Valentine, for their behaviour in Parliament, were breaches of privilege. The proceedings against Hampden in the case of ship-money- were inquired into by a committee and reported matter of grievance : and the various other illegal proceedings during the long discontinuance of Parliament were discussed in detail. ' Let us not stand too nicely upon circumstances,' said Edmund Waller ; ' let us do what may be done with reason and honesty on our part to comply with the king's desires. But let us first give new force to the old laws for maintaining our rights and privileges, and endeavour to restore this nation to its fundamental and vital liberties, — the property of our goods, and the freedom of our persons. The kings of this nation have always governed by Parliaments ; but now divines would persuade us that a monarch must be absolute, and that he may do all things ad libitum. Since they are so ready to let loose the conscience of the king, to enterprise the change of a long-established government, we are the more carefully to provide for our protection against this pulpit law — by declaring and re- enforcing the municipal laws of the kingdom.' 1 With this object, a committee was appointed to confer with the peers on a long list of grievances divided, by the advice of Pym, into the three heads of innovations in religion, invasions of private property, and, breaches of the privileges of Parliament. Impatient at the delay, Charles had recourse to the interposition of the Lords. They voted that in their opinion ' the supply should have precedency, and be resolved upon before any other matter whatsoever,' and in a conference communicated this resolution to the Commons. The latter at once voted 1 Pari, and Const. Hist. viii. 441. xiv.] Petition of Right to the Restoration. 543 this a high breach of their privileges, which the Lords answered by a disclaimer of any intention to interfere with the undoubted right of the Commons, admitting Exclusive right that ' the bill of subsidies ought to have its inception in ° n j t iat™money-° your House ; and that when it comes up to their lord- bills. ships, and is by them agreed to, it must be returned back to you, and be, by your Speaker, presented.' 1 1 Besides the exclusive right of initiating money-bills, the Commons also maintained that such bills could not be amended by the Lords. In 1671, they successfully disputed the right of the Lords to reduce the amount of an imposition ; and since that year the Lords have tacitly acquiesced in the contention of the Commons. Whenever amendments have been made which the Commons were desirous of adopting, they have invariably saved their privilege by throwing out the amended bill and sending up a fresh bill embodying the Lords' amendments. But while abstaining from direct interference with grants of supply, the Lords occasionally, without objection from the Lower House, rejected or postponed other bills incidentally affect- ' ing supply and taxation, such as bills for the regulation of trade and for imposing or repealing protective duties. When, however, in 1790, they amended a bill for regulating Warwick Gaol, by shifting the proposed rate from the owners to the occupiers of land, the Commons vindicated their privilege by throwing out the bill. The right of the Lords to reject a money-bill, 'to pass all or reject all, without diminution or alteration,' was explicitly admitted by the Lower House in 1671 and 1689 ; but as the exercise of this right involved the withholding supplies from the Crown, the Lords were loth to avail themselves of it, and, unable to exercise any control, ceased for the most part even to discuss financial measures. When, in 1 763, they opposed the third reading of the Wines and Cider Duties Bill, it was observed that this was the first occasion on which they had been known to divide upon a money-bill. At length, in i860, the Lords exercised their legal right of rejection ' in a novel and startling form, ' by rejecting a bill for the repeal of the paper duty, after bills for the increase of the property tax and stamp duties, intended to supply the deficiency which would be caused by such repeal, had already received the royal assent. The legal right of the Lords to reject any bill whatever was indisputable; and this particular bill had encountered stormy opposition in the Lower House, where it was only carried by a majority of nine. ' Yet it was contended,' observes Sir Erskine May, ' with great force, that to undertake the office of revising the balances of supplies and ways and means — which had never been assumed by the Lords during two hundred years — was a breach of , constitutional usage, and a violation of the first principles upon which the privileges of the House are founded. If the letter of the law was with the Lords, its spirit was clearly with the Commons.' After the lapse of six weeks, during which a committee of the Commons had searched for pre- cedents and reported to the House, Lord Palmerston, on the part of the Government, addressed the House, deprecating a collision with the Lords, and expressing his opinion that, in rejecting the Paper Duties Bill, they had been actuated by motives of public policy merely, without any intention of entering upon a deliberate course of interference with the peculiar func- tions of the Commons ; adding, however, that should that appear to be their intention, the latter would know how to vindicate their privileges, if invaded, and would be supported by the people. He concluded by pro- 544 The Stewart Period. [Ch. Charles offers to give up ship- money for twelve subsidies. The commons decline to pur- chase immunity from an illegal imposition. Imprudent speech of Mr. Secretary Vane. Parliament dis- solved after three weeks', session. In the meantime the king sent a message to the Commons, offering, if they would grant him twelve subsidies (about £850,000), payable in three years, to give up the prerogative of ship-money. But the Com- mons were by no means inclined to purchase that which they justly claimed as their right. Many observed ' that they were to purchase a release of an imposition very unjustly laid upon the kingdom, and by purchasing it, they should upon the matter confess it had been just ; which no man in his heart acknowledged ; ' and there- fore wished 'that the judgment might be first examined, and being once declared void, what they should present the king with would appear a gift and not a recompense.' 1 The message was, however, taken into favourable con- sideration, and the Commons were on the point of deciding that a supply should be granted to the king, leaving the amount and the manner for subsequent con- sideration, when Sir Henry Vane, the secretary, told them that if the supply were not voted in the amount and manner proposed in the king's message, it would not be accepted. This caused an adjournment of the debate, and the next day the king angrily dissolved Parliament, which had sat only three weeks. 2 ' There could not a greater damp,' says Clarendon, ' have seized upon the spirits of the whole nation than this dissolution posing three resolutions, which were passed by the House: (1) 'That the right of granting aids and supplies to the Crown is in the Commons alone ; ' (2) That, although the Lords had sometimes exercised the power of rejecting bills relating to taxation, yet the exercise of that power was 'justly regarded by this House with peculiar jealousy, as affecting the right of the Commons to grant supplies and to provide the ways and means for the service of the year ; ' and (3) That to secure to the Commons their rightful control over taxation, ' this House has in its own hands the power so to impose and remit taxes, and to frame bills of supply, that the right of the Commons as to the matter, manner, measure, and time, may be maintained inviolate.' In the following session the Commons effectually prevented a second interference of the Lords, by including the repeal of the paper duty in a general financial measure granting the property tax, the tea and sugar duties, and other ways and means for the service of the year, which the Lords were. constrained to accept. — May, Const. Hist. ii. 104-112. 1 Clarendon, Hist. i. 136. ' Id. 138. xiv.] Petition of Right to the Restoration. 545 caused ; and men had much of the misery in view which Effect of the shortly after fell -out. Nor could any man imagine what offence the Commons had given, which put the king upon that resolution. But it was observed that in the countenances of those who had most opposed all that was desired by his Majesty, there was a marvellous serenity ; nor could they conceal the joy of their hearts: for they knew enough of what was to come, to conclude that the king would be shortly compelled to call another Parliament, and they were as sure that so many so unbiassed men would never be elected again.' 1 Charles now returned to his old despotic courses. The kin g _ . , _ , . „ c „ resumes his old Several members of the late House 01 Commons were despotic courses, committed to prison. Forced loans were exacted ; fresh monopolies were created. Ship-money was enforced with even greater rigour than before, and the Lord Mayor and Sheriffs of London were prosecuted in the Star Chamber for neglecting to levy it. A new imposi- tion was laid upon the counties, under the name of 'coat and conduct money,' for clothing and defraying the travelling expenses of the recruits whom the king had pressed into his service against the Scots. In order to obtain a grant of six subsidies from the clergy, Convoca- Convocation, tion was unconstitutionally continued after the dissolu- tion of Parliament, under a fresh commission authorizing its sittings ' during pleasure,' and empowering it to alter and amend the laws of the Church. It accordingly framed and promulgated a set of canons which greatly Promulgates a irritated both the political and religious feelings of a canons! ° f great part of the nation. In addition to inculcating the divine right of kings, and denouncing the damnable sin of resistance to authority, a new oath ' for the preventing A new oath for of all innovations in doctrine and government' was vation" t in gmn °" appointed to be taken by all clergymen, and all graduates religion. in the Universities, while Separatists of all denominations 1 Clarendon, Hist. i. 139. 546 Failure of military opera- tions against the Scots. 1640, Aug. 27. The Stewart Period. [Ch. Great Council of peers summoned at York. Fifth (the Long) Parliament. 1640, Nov. 3. Its character- istics. were subjected to the same penalties as Romish recu- sants. 1 In his military operations against the Scots, Charles failed utterly and ignominiously. After the defeat at Newburn-on-Tyne, the English army, disheartened, un- disciplined, and disaffected, had retreated' to York, leaving the four northern counties to be possessed by the victors. ' The game of tyranny was now up. Charles had risked and lost his last stake. His army was mutinous, his treasury was empty, his people clamoured for a Parliament ; addresses and petitions against the government were presented. Strafford was for shooting the petitioners by martial law ; but the king could not trust the soldiers. A Great Council of peers was called at York, but the king could not trust even the peers. He struggled, evaded, hesitated, tried every shift rather than again face the representatives of his injured people. At length no shift was left. He made a truce with the Scots, and summoned a Parliament.' 2 On the 3rd of November, 1640, met that renowned Parliament ' destined to every extreme of fortune, to empire and to servitude, to glory and to contempt ; at one time the sovereign of its sovereign, at another time the servant of its servants ; ' but which, ' in spite of many errors and disasters, is justly entitled to the reverence and gratitude of all who, in any part of the world, enjoy the blessings of constitutional government.' 3 The elec- tions had proceeded with the utmost excitement through- out England. The court candidates were rejected on all sides. The exertions of the leaders of the popular party — of Hampden in particular, who rode from shire to shire exhorting the electors to return worthy members — secured an overwhelming majority on the side of the opposition. ' There was observed,' says Clarendon, ' a 1 Neal, Hist. Pur. ii. 302. 2 Macaulay, Works, ,. granted for two prerogative of levying customs on merchandise. By this Act, (which granted to the king tonnage and poundage for less than two months,) after reciting that these duties, months. 1 16 Car. I. c. I. 2 Supra, p. 244, 246. xiv.] Petition of Right to the Restoration. 55 J not having been granted by Parliament, had been collected against the laws of the realm, and that the farmers and collectors had received condign punishment, it was provided that in future any officer presuming to levy these customs, except during the time specified in the Act, should incur the penalties of praemunire, and be disabled during life to sue in any court. It was further, in general terms, ' declared and enacted that it is, and hath been, the ancient right of the subjects of this realm, that no subsidy, custom, impost, or other charge whatsoever, ought or may be laid or imposed upon any merchandise exported or imported by subjects, denizens, or aliens, without .common consent in Parliament.' 1 An ' Act for the declaring unlawful and void the late Ship-money proceedings touching ship-money, and for the vacating abollshed - of all records and process concerning the same,' was passed, declaring that charge illegal, and annulling the. judgment in the Exchequer Chamber against Hampden as contrary to the laws and statutes of the realm, the right of property, the liberty of the subject, and the Petition of Right. 3 These two acts closed the lengthy series of statutes which during the course of centuries had been passed in restraint of arbitrary taxation by the Crown. The next care of Parliament was to sweep away all those irregular and arbitrary tribunals which had been the principal instruments of despotic power. By an Star Chamber ' Act for the regulating of the Privy Council, and for abolished - taking away the court commonly called the Star- Chamber,' after reciting Magna Charta and its train of statutes for protecting the liberty and property of the subject, the Court of Star-Chamber was abolished, and 1 16 Car. I. c. 8. The grant was continued by six subsequent Acts (cc. 12, 22, 25, 29, 31, 36) for short periods up to July 2, 1642. 2 16 Car. I. c. 14. Five of the judges who had pronounced in favour of ship-money (Berkley, Crawley, Davenport, Trevor, and Weston) were imprisoned for their judgment. 55 2 The Stewart P-eriod. [Ch. the old constitutional principle re-enunciated 'that neither his Majesty nor his Privy Council hath, or ought to have, any jurisdiction, power, or authority, by any arbitrary way whatsoever, to examine or draw into ques- tion, determine, or dispose of the lands or goods of any subjects of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law.' Under this statute, although the jurisdiction of the Privy Council, as well as of the Star-Chamber, to try and determine any civil or criminal cause, was abrogated, the Council still retained the power of examining and committing persons charged with offences. But it was enacted that every person com- mitted by the Council, or any of them, or by the king's special command, should, on application to the judges of the King's Bench or Common Pleas, have granted unto him, without delay on any pretence whatever, a writ of habeas corpus ; that in the return to the writ the gaoler should certify the true cause of commitment ; and that the court whence the writ had issued should, within three days, examine, and determine whether the cause were just and legal or not, and thereupon do what to justice should appertain, either by deliver- ing, bailing, or remanding the prisoner. 1 Another clause of this Act abolished the Court of the President and Council of the North, the Court of the President and Council of the- Welsh Marches (which extended its jurisdiction over the adjacent counties of Salop, Worcester, Hereford, and Gloucester), the Court of the Duchy of Lancaster, and the Court of Exchequer of the County Palatine of Chester — all irregular tribunals which, ' under various pretexts, had usurped so extensive a cognizance as to deprive one-third of England of the privileges of the common law.' 3 1 16 Car. I. c. 10. a Hallam, Const. Hist. ii. 99. By another Act (16 Car. I. c. 15) certain abuses m the Stannary courts of Cornwall and Devon were remedied. The xiv.] Petition of Right to the Restoration. 553 With the Court of Star-Chamber and the provin- HighCommis- cial irregular tribunals fell also the Court of High abolished. Commission. By an Act intituled 'A repeal of a branch of a Statute, primo ElizabethEe, concerning Commissioners for causes ecclesiastical,' after reciting that the commissioners, to the insufferable wrong and oppression of the king's subjects, had illegally assumed the right to fine and imprison for ecclesiastical offences, the clause of the statute under which the court had been erected was repealed, and the other ecclesiastical courts were deprived of all power to inflict fine, imprisonment, or corporal punishment. 1 'By other statutes the vexatious prerogative of purvey- Purveyance ance was restrained, writs to compel the taking up of compulsory knighthood were abolished, and the boundaries of the knighthood royal forests were again reduced to their limits in the extensions' of 20th year of James IA the *??*} forests annulled. Among the beneficial Acts of the Long Parliament is impressment also to be reckoned one which, while empowering the declared llIe S a • king to levy troops compulsorily for the suppression of the Irish rebellion, recites in the preamble that, ' by the laws of this realm none of his Majesty's subjects ought to be impressed or compelled to go out of his country to , serve as a soldier in the wars, except in case of necessity of the sudden coming in of strange enemies into the kingdom, or except they be otherwise bound by the tenure of their lands or possessions.' 3 Council of the North was instituted by Henry VIII. at York, in 1537, after the suppression of the great northern insurrection, to administer justice and maintain order in Yorkshire and the four more northern counties, independently of the courts at Westminster. Strafford, as President, greatly extended the jurisdiction of this court, and excited much odium by his tyranny and arrogance. The courts of the Council of the North and of the Marches of Wales were entirely abolished, but the juris- diction of khose of the Duchy of Lancaster and of the County Palatine of Chester was preserved as to matters touching the king's private estate. 1 16 Car. I. c. 11. The latter part of the Act was repealed after the Restoration. 2 16 Car. I. cc. 19, 20, 16. 3 16 Car. I. c. 28. Since this statute, impressment for the army has never Impressment, been exercised by virtue of the royal prerogative ; but under the authority 554 The Stewart Period. [Ch. Hallam's re- marks on the foregoing legis- lature. Upon the foregoing statutory measures of the Long Parliament Hallam makes two remarks : (i) ' They made scarce any material change in our constitution such as it had been established and recognized under the House of Plantagenet ; the monarchy lost nothing that it had anciently possessed ; and the balance of the constitution might seem rather to have been restored to its former equipoise than to have undergone any fresh change.' (2) ' By these salutary restrictions, and some new retrenchments of pernicious or abused prerogative, the for the army .' for the navy. of Parliament it has occasionally been resorted to, more especially during the American war. In 1779, by statute 19 Geo. III. c. 10, all idle and disorderly persons, not following any lawful trade, or having some sub-' sistence sufficient for their maintenance, were made liable to impressment, and numbers of this class were seized without compunction and hurried to the war. In later times, however, this odious violation of personal liberty has not been practised for strengthening the land forces, which have been recruited by enlistment, stimulated by bounties. , Impressment of sailors for the public service seems always to have stood on a somewhat different footing from military impressment. It is 'a pre- rogative inherent in the Crown,' says Sir Michael Foster, 'grounded upon- common law and recognized by many Acts of Parliament.' (2 Ric. II. c. 4 ; 2 & 3 Phil. & Mary, c. 16 ; 2 & 3 Anne, c. 6 ; 4 & 5 Anne, c. 19 ; 7 & 8 Will. III. c. 21 ; 5 & 6 Will. IV. c. 24.) Several early statutes against the impressment of soldiers (I Edw. III. c. 5 ; 25 Edw. III. c. 8) are silent as to the impressment of sailors ; a difference between the two services which was probably due in some measure to the fact that while the land service was provided for in ordinary cases by the military tenures and by the jurati ad arma or national militia, no competent provision was made by law for the ordinary sea-service, except in the case of the Cinque-Ports and a few others, which were altogether inadequate for the public service. During the American War the hardships and cruelties of the system of naval impressment, carried out by armed press-gangs, were a disgrace to a free country ; and since the conclusion of peace, ministers and Parliament, alive to the dangerous principles on which recruiting for the navy had hitherto been conducted, have devised new expedients — higher wages, larger bounties, shorter periods of service, and a reserve volunteer force — more consistent with the liberty of the subject. The right of impressment for the navy has not yet been formally renounced by law ; but the Commission on Manning the Navy, in 1859, reported that 'the evidence of the witnesses, with scarcely an exception, shows that the system of naval impressment, as practised in former wars, could not now be successfully enforced.' The difference between impressment and conscription should be borne in mind. ' There is nothing, ' says Sir Erskine May, ' incompatible with freedom in a conscription or forced levy of men for the defence of the countny. It may be submitted to in the freest republic, like the payment of taxes. The services of every subject may be required in such form as the State deter- mines. But impressment is the arbitrary and capricious seizure of individuals from among the general body of citizens. It differs from con- scription as a particular confiscation differs from a general tax.' — See Foster, Crown Law, 154-180; May, Const. Hist, iii. 20-24. xiv.] Petition of Right to the Restoration. 555 Long Parliament formed our constitution such nearly as it now exists.' 1 Two other statutes of the Long Parliament, one pro- Acts against the viding that the Parliament then sitting should not be p ar u a mentwith- prorogued or dissolved without its own consent, and the ° ut its ° wn con - . . - , sent, and for other depriving the bishops of their suffrages among the disabling the peers, are more open to animadversion. They were both cler sy to r ' r J exercise tem- departures from the old lines of the constitution ; but porai jurisdic- the one, which was of a purely temporary nature, was rendered necessary by the deep and well-founded distrust which the character of Charles had inspired ; 2 the other was the outcome of the abuse of their coercive jurisdiction and temporal power, by which the bishops had rendered themselves odious not merely to the Puritans, but even to many of those who wished well to the royal cause. 3 After a session of ten months devoted to passing the Parliament series of Acts above-enumerated, the two Houses, in a J0urne September, 164.1, adjourned for a short recess of six weeks. It was about this time that a final schism in the Schism in the constitutional party developed itself. The concessions p™ t s y ' already made by the king -were deemed by a large minority a sufficient surrender of the royal power. ' The 1 Hallam, Const. Hist. ii. 101, 102. 2 The 'Act to prevent inconveniences which may happen by the un- timely adjourning, proroguing, or dissolving of this present Parliament ' (16 Car. I. c. 7), was ostensibly grounded on the necessity of speedily rais- ing money for the relief of the army in. the northern parts of the realm, and the impossibility of borrowing on the authority of resolutions of Parliament, unless some security was furnished to the creditors, that the assembly would not be dissolved before sufficient provision had been made for repayment of the moneys to be raised. But the chief motive was, undoubtedly, a just apprehension of the king's intention to overthrow the Parliament, and of personal danger to the popular leaders after a dissolution. It was clearly proved that the king had given his sanction to a plan to bring up the English army from the north in order to overawe the Parliament. — Hallam, Const. Hist. ii. 112. 3 In a very remarkable conversation with Hyde, Sir Edward Verney, who was killed at the battle of Edgehill, declared his reluctance to fight for the bishops, whose quarrel he took it to be, though bound in gratitude not to desert the king. — Clarendon, Life, p. 68. The Act to disable persons in holy orders to exercise any temporal jurisdiction or authority (16 Car. I. c. 27), passed Feb. 1641-2, was repealed after the Restoration by 13 Car. II. c. 2. 556 The Stewart Period. [CH: Old positions reversed. Daily defections from popular ranks. Character of the king. His view as to invalidity of statutes. Assenting with purpose to revoke. king was now,' says Mr. Forster, 'to all appearance the weaker party, and the House of Commons was the stronger; and how readily sympathy is attracted to those who are weak, however much in the wrong, and how apt to fall away from the strong, however clearly in the right, it does not need to say. The popular leaders became conscious of daily defections from the ranks ; the House of Lords unexpectedly deserted them on questions in which they had embarked in unison ; the army was entirely unsafe ; and opinions began to be busily put about that enough had been conceded by the king, and that the demand for more would be un- generous. ' Never had a great cause been in peril more extreme. For most thoroughly was the character of their adversary known to its chiefs, and that not a single measure of redress had been extorted from him which was not yielded in the secret hope of finding early occasion to reclaim it. It was notorious that Charles the First enter- tained a belief of the invalidity of the most important of the measures already passed by the Long Parliament on the ground that his own assent, having been given by compulsion, was ipso facto void. His Attorney-General had encouraged him in this notion ; 1 and Hyde himself 2 cannot help condemning the facility with which he assented to acts requiring grave deliberation, in reliance on this dangerous opinion that the violence and force used in procuring them rendered them absolutely invalid and void.' ' If ever warning for future guidance were needed the time for it was now come ; and there was nevertheless no way, consistent with safety, of showing the people in whose cause they were labouring the present perils and pitfalls that beset them, without turn- ing frankly and boldly to the lessons of the past. With even so much semblance of amended administration and 1 Clarendon, Life and Continuation, i. 206-2 1 1 . 2 Clarendon, Hist. ii. 252. xiv.] Petition of Right to the Restoration. 557 such pretensions of half-popular measures as the ingenuity of Hyde could furnish (if Charles could be brought to concede only so much), there was yet the means, in the absence of that indispensable warning against reposing confidence in the sovereign, of striking a heavy blow for recovery of the old prerogative. Nor were nearer dan- gers wanting. Pym's life had been aimed at repeatedly ; and more than one attempt had been tried to overawe de- Threatenings of liberation by the display of force. Something was in peril orce ' beyond the abstract freedom of Parliament or debate ; Freedom or nor was it more to secure the permanence of provisions des P° tlsm ? already achieved for the public liberty, than to guard against sudden substitution of a naked despotism, that the parliamentary chiefs were now called to assert and defend their position, or to abandon it for ever. They were not The Parlia- . , , , mentary leaders men to hesitate, and they resolved upon an appeal to resolve to ap- the people in a more direct form than had ever yet been P eal , t0 the r r J people. attempted.' 1 In the meantime Charles had gone to Edinburgh, Charles goes to much against the wish of the Commons, partly for the m urg purpose of adjusting the points of difference which object of his remained between him and his Scottish subjects, but J ournev - mainly, as has since been shown, with the object of gathering ' supposed proofs with which to build a charge of treason against Pym and Hampden, and such acces- sions from the undisbanded Scotch army to the con- spirators of the army of the North as to render safe the prosecution of such a charge. ' 2 Chiefly with the view of saving Strafford's life, the Negotiations for king had, some months previously, made overtures for ^popular 8 1 ° giving office to the leaders of the popular party, and had leaders. even made St. John, one of the most uncompromising opponents of the court, solicitor-general, besides appoint- ing Lords Essex, Holland, and Say to other posts. But 1 Forster, ' Grand Remonstrance,' p. 154. 2 Ibid, 558 The Stewart Pvriod. [Ch. Alarm caused by the 'Incident' in Scotland ; and the rebel- lion in Ireland. Re-assembling of Parliament, 1641, Oct. 20. Motion of Pym on the new army-plot. the ill-timed death of the Earl of Bedford, a Puritan, who was to have been made Lord Treasurer, and the discovery of the first army-plot, had caused the scheme to fall through. Warned before his departure for Scot- land of the intention of the leaders of the popular party to put forth the Grand Remonstrance, Charles now caused negotiations to be opened for a revival of the plan of giving' them office. ' What had formerly for its object to save. Strafford's life, was now designed to save the king, by giving him time to ruin the very men he was meanwhile to invite to serve him. The continued hostility of Pym and Hampden to the Scottish visit, and their calm determination to bring forward the Remon- strance, baffled the plan.' 1 The popular agitation and alarm were increased by two events which occurred during the king's absence in Scotland. One of these, commonly called the ' Incident,' had all the appearances of a concerted design against the two great leaders of the constitutional party in the northern kingdom, Hamilton and Argyle, and raised a natural fear that similar measures might be in contem- plation against the English malcontents. The other was the Irish rebellion, with its attendant massacre, which raised a fierce outcry against all Papists, and was by many believed to have been secretly instigated or encouraged by the king. 3 On the 20th October, i64i,the Parliament re-assembled. An examination into an alleged new army-plot was instituted in the Commons, and on the 18th November Pym moved and carried a resolution, ' that in the exami- nations now read unto us, we did conceive that there was sufficient evidence for us to believe, that there was a 1 Forster, 'Grand Remonstrance,' p. 159. 2 Hallam, Const. Hist. ii. 1 24. Though doubtless in no way connected with the original rising, the king had been in negotiation with the Irish, through his agent, Lord Glamorgan, (who was empowered to treat with them without the knowledge of Ormond, the Lord Lieutenant), for help against his Parliament. xiv.] Petition of Right to the Restoration. 559 second design to bring up the army to overawe the deliberations of this House.' 'This,' observes Mr. Forster, ' was the most direct avowal yet made of a con- sciousness on the part of the Commons, not merely of what had taken the king to Scotland, but of what still kept him there. The alarm and dismay it carried with it showed how unerringly the mark had been hit.' 1 On the 8th November the rough draft of the Remon- The Grand strance or 'Declaration of the State of the Kingdom' laid on the table was laid upon the table of the House. Secretary of the House. Nicholas at once wrote to the king informing him of the fact, and urging his instant return to London. In reply the king wrote, ' You must needs speak with such of my Organized servants that you may best trust, in my name, that by all to jj- means possible this Declaration may be stopped.' Under the leadership of Hyde, a band of members in the Lower House was now organized as what was truly to be called his Majesty's Opposition. With steady perseverance and tenacity the passage of the Remonstrance was disputed clause by clause during a seven days' debate. Only the Seven days' most watchful and resolute determination on the part of the popular leaders availed to maintain any part of it unimpaired ; and all the forms of the House were exhausted in pretences for delay. At length the final The final debate was fixed for the 22nd November. The king, eager at last to reach London before the final vote could be taken, was now hastening with all speed back from Edinburgh, and on the eventful 22nd was only distant two days' journey from the Metropolis. For fourteen hours the debate was sustained with much warmth by Hyde, Falkland, Dering, Rudyard, Bagshaw, Culpeper, Pym, Orlando Bridgman, Waller, Hampden, Hollis, Glyn, Coventry, Geoffrey Palmer and Maynard. Near mid- night Secretary Nicholas retired and wrote to the king that the Commons had been in debate since twelve at 1 Forster, ' Grand Remonstrance, ' p. 2!o. 560 The Stewart Period. [Ch. noon and were at it still, it being near twelve at mid- night. ' I stayed this despatch/ he continued, ' in hopes to have sent your Majesty the result of that debate, but it is so late, as I dare not (after my sickness) adventure to watch any longer to see the issue of it : only I assure your Majesty there are divers in the Commons' House that are resolved to stand very stiff for rejecting that Declaration, and if they prevail not then to protest against it: The Remon- At length, about two in the morning, the Remon- by ii votes. strance was carried by a majority of eleven only. So critical was the contest deemed, that Cromwell declared to Lord Falkland, as they were leaving the House together after the division : 'had the Remonstrance been rejected, I would to-morrow have sold everything I possess, and never seen England more ; and I know many other honest men of the same resolution.' The nature and design of this memorable constitu- tional document are thus described by Mr. Forster. 1 What the Grand ' It embodies the case of the Parliament against the Remonstrance mm i sters of the king. It is the most authentic state- Case of the Par- ment ever put forth of the wrongs endured by all classes lhTkin t g agahlSt of the English people, during the first fifteen years of the reign of Charles the First ; and, for that reason, the Most complete most complete justification upon record of the Great Grea^Rebellion. Rebellion. It possesses, for the student of that event, the special interest which arises from the fact, that it demonstrates more clearly than any other paper of the time, by its close and powerful reasoning, how insepar- Religion and able religion and politics had become, and how each was politics inunion. t0 be stabbed only through the side of the other It describes, then, the condition of the three kingdoms at the time when the Long Parliament met, and the measures taken thereon to redress still remediable wrongs, and deal out justice on their authors. Enume- 1 'Grand Remonstrance,' pp. 114 et seq., 215 et seq. xiv.] Petition of Right to the Restoration. 561 rating the statutes passed at the same time for the good Character of its of the subject, and his safety in future years, it points out what yet waited to be done to complete that necessary work, and the grave obstructions that had arisen, in each of the three kingdoms, to intercept its completion. It warns the people of dangerous and desperate intrigues Warnings to recover ascendancy for the court faction ; hints not a S ainst court - obscurely at serious defections in progress, even from the popular phalanx ; accuses the bishops of a design to Romanize the English Church ; denounces the effects of ill-counsels in Scotland and Ireland ; and calls upon the king to dismiss evil counsellors. It is, in brief, an appeal to the country ; consisting, on the one hand, Appeal to the of a dignified assertion of the power of the House of Commons in re-establishing the public liberties, and, on the other, of an urgent representation of its powerlessness either to protect the future or save the past, without immediate present support against papists and their favourers in the House of Lords, and their unscrupulous partisans near the throne. There is in it, nevertheless, No disrespect not a word of disrespect to the person or the just privi- church ° r leges of royalty ; and nothing that the fair supporters of a sound Church Establishment might not frankly have approved and accepted. Of all the state papers of the period, it is in these points much the most remarkable ; nor, without very careful reading it, is it easy to under- stand rightly, or with any exactness, either the issue chal- lenged by the king when he unfurled his standard, or States what the the objects and desires of the men who led the House warpu inissue - of Commons up to the actual breaking out of the war.' The preamble, consisting of twenty unnumbered The preamble, clauses, and opening in the name of ' The Commons in the present parliament assembled,' begins by declaring that for the past twelve months they had been carrying on a Struggle of which the object was to restore and establish the ancient honour, greatness, and security, of the nation and the Crown. That the object of the 562 The Stewart Period. [Ch. Proofs and illustrations. Defence of the leaders of the Commons. Reply to their assailants. Remonstrance was as well to answer the great aspersions cast upon what they had done, as to point out what remained to do, and the difficulties raised for their hindrance. In express terms they denounce the court conspiracy to subvert the fundamental laws and prin- ciples of government, to degrade the Protestant religion, to discredit the claims and authority of Parliament, and to introduce such opinions and ceremonies as would necessarily end in accommodation with Popery. The body of the Remonstrance is contained in 206 numbered clauses, (each clause, as we have seen, having been separately voted by the House,) and takes the form of practical proofs and illustrations of the state- ments advanced in the preamble. After detailing, with vigorous and incisive rhetoric, all the invidious and tyrannical proceedings of the king during his first, second, and third Parliaments ; the government by prerogative from the third Parliament to the pacification of Berwick ; the Short Parliament and the Scottish invasion ; the remedial Acts of the Long Parliament ; and the practices of the court party ; the Remonstrance proceeds to set forth the defence of the popular leaders. ' What hope,' they said, ' have we now but in God ? The only means of our subsistence, and power of reforma- tion, is, under Him, in the Parliament ; but what can we, the Commons, do, without the conjunction of the House of Lords ? And what conjunction can we expect there when the bishops and the recusant Lords are so numerous and prevalent, that they are able to cross and interrupt our best endeavours for reformation, and by that means give advantage to this malignant party to traduce our proceedings ? ' They infuse into the people that we mean to abolish all Church government, and leave every man to his own fancy for the service and worship of God, absolving him of that obedience which he owes, under God, to his xiv.] Petition of Right to the Restoration. 563 Majesty ; whom we know indeed to be entrusted with the ecclesiastical law as well as with the temporal, to regulate all the members of the Church of England — though by such rules of order and discipline only as are established by Parliament ; which is his great council in all affairs, both in Church and State. ' They have strained to blast our proceedings in Parlia- Champions of ment by wresting the interpretations of our orders from E P lsco P ac y- their genuine intentions. They tell the people that our meddling with the power of episcopacy hath caused sectaries and conventicles, when it is idolatry, and the Popish ceremonies introduced into the Church by com- mand of the bishops, which have not only debarred the people from them but expelled them from the kingdom. And thus, with Eliab, we are called by this malignant party the troublers of the State ; and still, while we endeavour to reform their abuses, they make us authors of those mischiefs we study to prevent. ' We confess our intention is, and our endeavours have Design of the been, to reduce within bounds that exorbitant power Blsho P s blU - which the prelates have assumed unto themselves, so contrary both to the word of God and to the laws of the land : to which end we passed the Bill for the removing them from their temporal power and employments, that so the better they might with meekness apply them- selves to the discharge of their functions ; which Bill they themselves opposed, and were the principal instruments of crossing. 1 1 Three bills were introduced by the Commons for taking away the temporal power of the bishops. The first, ' A Bill to restrain Bishops, and others in Holy Orders, from intermeddling in secular affairs,' was sent up to the Lords, May 1st 1641, where it was thrown out by a large majority. The second, popularly termed the ' Root and Branch Bill,' was intituled ' for the utter abolishing and taking away all Archbishops, Bishops, their Chancellors and Commissaries, Deans and Chapters, Archdeacons, Pre- bendaries, Chanters, Canons, and all other their under-officers. ' It was introduced by Sir Edward Dering while the first bill was still pending,- but after being long and vehemently debated, was allowed to drop on the king's 002 564 The Stewart Period. [Ch. No intention to relax just dis- cipline. Conformity desired. Suggestion for a Synod to settle church government. Desire to advance learn- ing, by reforming Universities. Remedial measures demanded. (i.) Safeguards against Roman Catholic religion . ' And we do here declare that it is far from our pur- pose or desire to let loose the golden reins of discipline and government in the Church, leaving private persons, or particular congregations to take up what form of divine service they please : for we hold it requisite that there should be, throughout the whole realm, a con- formity to that order which the laws enjoin according to the Word of God. But we desire to unburthen the con- sciences of men of needless and superstitious ceremonies, to suppress innovations, and to take away the monu- ments of idolatry' They then suggest a general synod of divines, the result of whose consultations should be represented to the Parliament, there to be allowed of and confirmed, and to receive the stamp of authority. 'We have been maliciously charged/ they continue, ' with the intention to destroy and discourage learning, whereas it is our chiefest care and desire to advance it, and to provide such competent maintenance for consci- entious and preaching ministers throughout the realm as will be a great encouragement to scholars, and a certain means whereby the want, meanness, and ignorance, to which a great part of the clergy is now subject, will be prevented. And we have intended likewise to reform and purge the Fountains of Learning, the two Universi- ties, that the streams flowing from thence may be clear and pure, and an honour and comfort to the whole land.' Finally, the Remonstrance specifies the Remedial Measure demanded : ' the groundwork of which,' remarks Mr. Forster, ' was precisely that which formed afterwards the basis of the settlement by which alone the Monarchy was again firmly established in England.' (I.) To keep Papists in such condition, as that they might not be able to do any hurt ; and for avoiding such departure for Scotland. The third, which passed into a law in Feb. 1641-2 (supra, p. 555), was the last concession made by Charles before finally quitting London with the intention of appealing to arms. xiv.] Petition of Right to the Restoration. 565 connivance and favour as had theretofore been shown to them, his Majesty was moved fo grant a standing com- mission to some choice men named in Parliament, who Suggested . , , , . . commission. mignt take watch of their increase, report upon their counsels and proceedings, and use all due means, by exe- cution of the laws, to prevent mischievous designs, from that quarter, against the peace and safety of the realm. And further, that some sufficient tests should be applied to discover the false conformity of Papists to the English Church, by colour of which they had been ad- mitted into places of highest authority and trust. (II.) That, for the better preservation of the liberties (ii.) Securities and laws, all illegal grievances and exactions should be [? r admmlstra - ° tion of laws. presented and punished at the sessions and assizes ; • and that judges and justices should be sworn to the due execution of the Petition of Right and other laws. (III.) A series of precautions were suggested to pre- (;;;,) Protection vent the employment of evil councillors ; and it was a g ain stevil ,.,">• . councillors. plainly stated that supplies for support of the king's own estate could not be given, nor such assistance provided as the times required for the Protestant party beyond the sea, Unless such councillors, ambassadors, and other ministers only were in future employed, as Parliament could give its confidence to ; and unless all councillors of p ar 2; ament to State were sworn, as well to avoid receiving, in any be consulted in c 1 r r . choice of minis- form, reward or pension irorq any foreign prince, as to ters • who should observe strictly those laws which concerned the subject be sworn to . , ., observe the at home in his liberty. laws. ' If these things,' the Remonstrance concludes,' be ob- served, we doubt not but God will crown this Parliament with such success, as shall be the beginning and founda- tion of more honour and happiness to his Majesty, than ever was yet enjoyed by any one of his royal prede- cessors.' l 1 The Remonstrance is printed in externa in Rushworth's Collections, part 3, i. 438. For a just apprehension of its real nature and importance Mr. Forster's ' Grand Remonstrance, 1641 ' (from which the particulars in the text are mainly drawn), should be carefully studied. 5.66 The Stewart Period. [Ch. Motion to print the Remon- strance. Protest of Mr. Palmer. Immediately after the Remonstrance had been voted, Mr. Peard, member for Barnstaple, moved that it should be forthwith printed. Hyde opposed the de- sign as unlawful and mischievous, and in pursuance of the tactics already decided upon, said that if the motion were adopted, he should ask leave of the House to pro- test. Other voices cried out that they protested, and Palmer declared ' I protest for myself and all the rest' Protests, though in use with the Lords, were utterly unknown to the Commons, and the. presumption of Palmer not merely in protesting at all without leave of the House, but also in the name of 'all the rest,' raised such a tumult that many members laid their hands upon their swords, and a violent conflict seemed imminent, ' had not the sagacity and calmness of Mr. Hampden,' says an eye-witness, 'by a short speech prevented it' On a division it was decided by a majority of 23 that although the Remonstrance might be published, it should - not be printed until the further order of the House. The question whether the minority should be allowed to protest against a decision of the House of Commons was far too serious to admit of Palmer's offence being passed "over unpunished. It was of vital importance to the authority and influence of the Commons that, no matter what their internal divisions might be, their deci- sions should be kept before the people sole and intact. ' Palmer's success would have divided the House against itself. Once admit such division, all the votes of the past year would lose their claim to continued respect, and the sovereign would again be uncontrolled.' 1 At the next sitting of the House, Palmer, after being heard in his defence, was committed to the Tower, but almost immediately afterwards released, on making a humble apology and retractation. On the 15th December the Remonstrance, having been previously presented to the 1 Forster, ' Grand Remonstrance,' p. 347. xiv.] Petition of Right to the Restoration. 567 king, was ordered to be printed by a majority of 135 votes to 83. The next important, and indeed the critical, event in Impeachment the relations between Charles I. and his Parliament was arresf oTthe 6 the impeachment and attempted arrest of the Five Five Members. Members. The king had no intention of submitting quietly to the adverse vote of the House of Commons. He once more indeed, even with what he afterwards alleged to be the proofs of treason in his hand, attempted to make use of what Clarendon has termed ' the strata- gem of winning men by places n by offering the Chan- cellorship of the Exchequer to Pym, the leader of the popular party. 2 But this attempt at conciliation failed, Preliminary like the former, doubtless on account of the utter dis- measures - trust and disbelief which the king in all his dealings had inspired. Charles now seems to have resumed his ori- ginal intention to crush his opponents. The leaders of the opposition to the Remonstrance were called to office. Hyde preferred for the present to serve the king as a pri- vate member of the House, butFalkland accepted the post of Secretary of State, and Culpeper that of Chancellor of the Exchequer. Balfour, the tried friend of the Par- liament, was removed from the Governorship of the Tower — the ' bridle ' of the City — and Colonel Luns- ford, a soldier of evil character and infamous name, was appointed in his place ' as one,' says Clarendon, ' who would be faithful for the obligation, and execute any- thing desired or directed.' The appointment of Luns- ford excited tumults in the City and at Westminster. The Commons demanded his removal, and at length the king was obliged to give way, appointing Sir John Byron in his stead. Disturbed by secret reports and the unusual concourse of armed men about the king at Whitehall, the Commons sought the protection of a guard. On the 30th of December, Pym (who seems to have 1 Clarendon, ii. 60. * Forster, ' Arrest of the Five Members,' p. 59, 568 The Stewart Period. [Ch. The impeach- ment. already received intimation of the intended impeachment) moved ' that there being a design to be executed this day upon the House of Commons, .we might send instantly to the City of London .... to come down with the Train Bands for our assistance.' The next day the Commons sent a verbal message to the king by Denzil Hollis, expressing their earnest desire for a guard out of the City, under command of the Earl of Essex. The king required the message to be communicated to him in writing. This was immediately drawn up and pre- sented, but no answer was returned for three days. At length, on the 3rd January, 164.1-2, the king's answer came. It was a refusal, but accompanied by a promise ' on the word of a king, that the security of all and every one of you from violence, is and shall ever be as much our care as the preservation of us and our children.' At that very time the Attorney-General was engaged in delivering a royal message to the House of Lords, im- peaching of high treason Lord Kimbolton and five members of the Commons, Pym, Hampden, Hollis, Haslerig, and Strode. 1 He demanded that the House Articles of impeachment against the Five Members. (i.) General charge. (ii.) Authorship of Remonstrance. (iii.) Tampering with the army. (iv. ) Invitation to the Scotch. (v.) Punishment ofi>i-otesting minority. (vi. ) Raisins; tumults. 1 A copy of the charge, endorsed in the handwriting of Secretary Nicholas as ' Articles of treason against Mr. Pym and the rest,' exists among the State Papers, and is printed in Mr. Forster's ' Arrest of the Five Members' (p. 114) as follows : ' Articles of High Treason and other high misdemeanors ag' the Lord Kemolton, M r John Pym, M r John Hampden, M r Denzil Hollis, Sir Arth'"Haslericke, and M r Will™ Strode. ' 1. That they have traytorously endeav rd to subvert the fundamental! Lawes and Gov" 1 of the Kingdome of England, to deprive y c king of his royale power, and to place in subjects an arbitrary and tyrannicall power over the lives, libertyes, and estates of his Maj ts lovinge people. ' 2. That they have traytorously endeav" 1 , by many fowle aspersions upon his Ma lie and his Govern', to alienate the affections of his people, and to make his Ma" odious unto them. ' 3. That they have endeav d to drawe his M" late armye to disobedience to his Ma"" comands, and to syde with them in their traytorous designs. ' 4. That they have traytorously invited and incouraged a forreigne power to invade his Ma lit " kingdome of England. ' 5. That they have traytorously endeav d to subvert the rights and very being of Pari". ' 6. That for the compleating of their traytorous designs, they have endeav d , as farr as in them lay, by force and terror to compell the Parlam' to joyne with them in theire traytorous Designs, and to that end have actually raysed and countenanced tumults ag' y e King and Parlam'. xiv. j Petition of Right to the Restoration. 569 should secure the persons of the accused and appoint a committee to examine the charges. The Lords, 'appalled ' (to qu<3te Clarendon's expression) at this proceeding, at once raised the question of the illegality of the accusa- tion, and, disregarding the king's request, sent an imme- diate message to the Commons and named members for a conference. In the meantime the king's officers had gone to the houses of the five members and were putting seals on everything found there. The Commons, having just heard of these proceedings, had voted them a breach of privilege, when the king's Serjeant appeared, and in the name of his master ' required Mr. Speaker to place in his custody five gentlemen, members of this House (naming them), whom his Majesty had commanded him to arrest for high treason.' The House appointed a committee, including two ministers of the Crown, Lord Falkland and Sir John Culpeper, to attend on and inform the king that such an important message could only be answered after mature consideration, but that the accused would be ready to answer any legal charge made against them. The five members were ordered to attend daily Commons apply in their places, and the previous resolution for a military a"™^ 1 y guard out of the City was turned into an Order of the House and sent by the hands of two of the members for the City to the Lord Mayor. Of this impeachment Macaulay has remarked, 'it is difficult to find in the whole history Illegality of the of England such an instance of tyranny, perfidy, and im P eachment - folly. The most precious and ancient rights of the sub- ject were violated by this act. The only way in which Hampden and Pym could legally be tried for treason at the suit of the king was by a petty jury on a bill found by a grand jury. The Attorney-General had no right to impeach them. The House of Lords had no right to try them The tyrant resolved to follow up one out- "]. That they have traytorously conspired to levie, and actually have ( v ij.) Levying levyed warr ag' the king.' [Referring to the~ armed guard whichthey had waK persisted in voting for protection of the House.] 57o The Stewart Period. [Ch. rage by another. In making the charge he had struck at the institution of juries. In executing the arrest, he struck at the privileges of Parliament. He resolved to go to the House in person with an armed force, and there to seize the leaders of the opposition while en- gaged in the discharge of their parliamentary duties.' ! Preparations for Careful preparations were made to ensure the success the arrest. Q f t j 1 j g cm p ^ ^ tat ^ Whitehall was fortified with a con- - siderable accession of arms and ammunition, and the palace guard were ordered to hold themselves in readi- ness. Sir William Killigrew was sent round to each of the Inns of Court (collectively capable of furnishing a military guard of at least 500 men) with copies of the articles of treason, and with a summons from his Majesty in each case to be in waiting the next morning at White- hall. Late in the night the king, after consultation with his secretary Nicholas, sent instructions to the Lord Mayor of London not merely to refuse to the Commons the guard which they had requested, but in its place to enrol such a guard for the royal service, with orders for its immediate employment in suppressing and dispersing all tumults and assemblages of the people in the streets of the city, and with express instructions, ' by shooting with bullets, or otherwayes, to suppresse those tumults and destroy such of them as shall persist in their tumul- tuous wayes and disorders.' 2 Pym's speech in The next morning, the 4th of January, the accused charee" *" * e members attended in their places, and in a grand com- mittee of the House defended themselves from the charges which the king had brought against them. Pym, admitting that the articles, if proved, amounted to high treason, proceeded to clear himself by drawing a parallel between his actions and the articles. ' If,' he said, ' to vote with the Parliament, as a member of the House, wherein all our votes ought to be free, be to endeavour 11 Macaulay, Works, v. 573 (Nugent's Memorials of Hampden). ■ Forster, ' Arrest of the Five Members,' 154-157. xiv.] Petition of Right to the Restoration. 571 to subvert the fundamental laws, then I am guilty of the first article. If to agree and consent by vote with the whole state of the kingdom, to ordain and make laws for the good government of the king's subjects, in peace and dutiful obedience to their lawful sovereign, be to introduce an arbitrary and tyrannical government, then I am guilty of the second article. If to consent, by vote with the Parliament, to raise a guard or trained band, to secure and defend the persons of the members, envi- roned and beset with many dangers in the absence of the king ; and to vote with the House, in obedience to the king's command, .at his return, be actually to levy arms against the king, then I am guilty of the third article. If to join with the Parliament of England, by free vote, to crave brotherly assistance from Scotland to suppress the rebellion in Ireland, be to invite and encourage a foreign power to invade the kingdom, then am I guilty of high treason by the fourth article. If to agree with the greatest and wisest council of state, to suppress unlawful tumults and riotous assemblies — to agree with the House, by vote, to all orders, edicts, and declara- tions for their repelling, — be to raise and countenance them in their unlawful actions, then am I guilty of the fifth article. If by free vote to join with the Parliament in publishing of a Remonstrance, in setting forth declara- tions against delinquents in the state, against incen- diaries against his Majesty and his kingdom, against ill counsellors which labour to avert the king's affections from Parliament, — against those ill-affected bishops that have innovated our religion, oppressed painful, learned, and godly ministers with vexatious suits and molestations in their unjust courts ; by cruel sentences of pillory and cutting off their ears ; by great fines, banishments and perpetual imprisonments ; — if this be to cast aspersions upon his Majesty and his government, and to alienate the hearts of his loyal subjects, good Protestants and well-affected in religion, from their due 572 The Stewart Period. [Ch. The impeach- ment voted ' a scandalous paper.' Attempted arrest by the king and an armed force. obedience to his royal Majesty, then I am guilty of the sixth article. If to consent, by vote with the Parlia- ment, to put forth proclamations, or to send declarations to his Majesty's army, to animate arid encourage them to his loyal obedience, to give so many subsidies, and raise so many great sums of money, willingly, for their keeping on foot, to serve the king upon his royal com- mand, on any occasion ; to apprehend and attack as delinquents such persons in the same as were disaffected both to his sacred person, his crown and dignity, to his wise and great council of Parliament, to the true and orthodox doctrine of the Church of England, and to the true religion grounded on the doctrine of Christ himself, and established and confirmed by many Acts of Parlia- ment in the reigns of Henry VIII., Edward VI., Eliza- beth, and James, —if these be to draw his Majesty's army into disobedience and to side with us in our dan- gers, then am I guilty of the seventh article.' J When the last of the accused members had resumed his seat, the Commons resolved to request a conference with the Lords to acquaint them that ' a scandalous paper ' (the Articles of Impeachment) had been published, and to require their help in instituting inquiries. as to who were its authors and publishers, to the end that they might receive condign punishment, and the Commonwealth be secured against such persons. 3 Forewarned of the king's approach at the head of 400 or 500 armed men, the accused members, by the desire of the House, discreetly withdrew as the king was enter- ing New Palace Yard. At the entrance to Westminster Hall the king's armed band formed suddenly into a lane, ranging themselves on either side along the whole length of the Hall, and 1 The order in which the articles are enumerated by Pym does not corre- spond with the copy existing in the handwriting of Secretary Nicholas {supra, p. 5^8). The latter was probably only a draft, which was re- arranged before formal presentation. 2 Forster, 'Arrest of the Five Members,' 172. xiv.] Petition of Right to the Restoration. 573 Charles, passing through this lane, ascended the stairs leading to the House of Commons. ' The king's com- mand had been, according to Sir Ralph Verney and Captain Slingsby, himself one of the company, that the great body should stay in the Hall ; but, says D'Ewes, " his Majesty coming into the lobby, a little room just without the House of Commons, divers officers of the late army of the North, and other desperate ruffians, pressed in after him to the number of about fourscore, besides some of his pensioners." ' Charles entered the House, followed only by his nephew, the Prince Elector Palatine, having commanded the rest of his followers ' upon their lives not to come in ; ' but the door was not permitted to be closed behind him. ' Visible now at the threshold to all, were the officers and desperadoes above named, of whom D'Ewes proceeds, " some had left their cloaks in the Hall, and most of them were armed with pistols and swords, and they forcibly kept the door of the House of Commons open, one Captain Hide standing next the door holding his sword upright in the scab- bard :" a picture which Sir Ralph Verney, who was pre- sent that day in his place, completes by adding that "so the doors were kept open, and the Earl of Roxborough stood within the door, leaning upon it." As the king entered all the members rose and uncovered, and the king also removed his hat, and it would not have been easy, says Rushworth, to discern any of the five members, had they been there, among so many bare faces standing up together. But there was One face, among the Five, which Charles knew too well not to have singled out even there ; and hardly had he appeared within the chamber, when it was observed that his glance and his step were turned in the direction of Pym's seat close by the bar. His intention, baffled by the absence of the popular leader, can only now be guessed at ; but Rushworth adds, " his Majesty not seeing Mr. Pym there, knowing him well, went up to the chair." As he approached the 574 The Stewart Period. [Ch. chair, Lenthall stepped out to meet him : upon which " he first spake," says D'Ewes, saying, " Mr. Speaker, I must for a time make bold with your chair." And then the king stepped up to his place and stood upon the step, but sat not down in the chair. And after he had speech " g S looked a great while he spoke again. " Gentlemen," he said, " I am sorry for this occasion of coming unto you. Yesterday I sent a serjeant-at-arms upon a very im- portant occasion to apprehend some that by my com- mand were accused of High Treason ; whereunto I did expect obedience, and not a message. And I must declare unto you here, that albeit no king that ever was in England shall be more careful of your privileges, to maintain them to the uttermost of his power, than I shall be, yet you must know that in cases of treason no person hath a privilege. And therefore I am come to know if any of these • persons that were accused are here." Then he paused ; and casting his eyes upon all the members in the House, said, " I do not see any of them. I think I should know them." " For I must tell you, gentlemen," he resumed, after another pause, " that so long as those persons that I have accused (for no slight crime, but for treason) are here, I cannot expect that this House will be in the right way that I do heartily wish it. Therefore I am come to tell you that I must have them wheresoever I find them." Then again he hesitated, stopped : and called out, " Is Mr. Pym here?" To which nobody gave answer. "He then asked (continues D'Ewes) for Mr. Hollis, whether he were pre- sent, and when nobody answered him, he pressed the Speaker to tell him, who, kneeling down, did very wisely desire his Majesty to pardon him, saying that he could neither see nor speak but by command of the House : to which the king answered, ' Well, well ; 'tis no matter. I think my eyes are as good as another's.' And then he looked round about the House a pretty while, to see if he could espie any of them." After that long pause xiv.] Petition of Right to the Restoration. 575 described by D'Ewes, 'the dreadful silence,' as one member called it, Charles spoke again to the crowd of mute and sullen faces. The complete failure of his scheme was now accomplished, and all its possible con- sequences, all the suspicions and retaliations to which it had laid him open, appear to have rushed upon his mind. "Well, since I see all my birds are flown, I do expect from you that you will send them unto me as soon as they return hither. But, I assure you, on the word of a king, I never did intend any force, but shall proceed against them in a legal and fair way, for I never meant any other. And now, since I see I cannot do what I came for, I think this no unfit occasion to repeat what I have said formerly, that whatsoever I have done in favour, and to the good, of my subjects, I do mean to maintain it. I will trouble you no more, but tell- you I do expect, as soon as they come to the House, you will send them to me ; otherwise I must take my own course to find them." " After he had ended his speech," con- tinues D'Ewes, " he went out of the House in a more discontented and angry passion than he came in, going out again between myself and the south end of the clerk's table, and the Prince Elector after him." Low mutterings of fierce discontent broke out as he passed along, and " many members cried out aloud, so as he might hear them, Privilege ! Privilege /" With those words, ominous of ill, ringing in his ear, he repassed to his palace He retires through the lane, again formed,- of his armed adherents, baffled. and amid audible shouts of as evil augury from despe- radoes disappointed of their prey. Eagerly in that lobby had the word been waited for, which must have been the prelude to a terrible scene. -" For the design was," Design of the pursues Sir Simonds D'Ewes, writing at the close of his ^re^' 6 ' 1 day's journal, "to have taken out of our House by force and violence the said five members, if we had refused to have delivered them up peaceably and willingly ; which, for the preservation of the privileges of our House, we 576 The Stewart Period. [Ch. must have refused. And in the taking of them away, they were to have set upon us. all, if we had resisted, in a hostile manner. It is very true that the plot was so contrived as that the king should have withdrawn out of the House, and passed through the lobby or little room next without it, before the massacre should have begun, upon a watchword by him to have been given upon his passing through them. But 'tis most likely that those ruffians, being about eighty in number, who were gotten into the said lobby, being armed all of them with swords, and some of them with pistols ready charged, were so thirsty after innocent blood as they would scarce have stayed the watchword, if those members had been there; but would have begun their violence as soon as they had understood of our denial, to the hazard of the persons of the king and the Prince Elector, as well as of us. For, one of them understanding a little before the king came out that those five gentlemen were absent, ' Zounds ! ' said he, ' they are gone ! and we are never the better for our coming ! '" 1 Its critical ' The arrest of the Five Members,' observes Mr.Forster, ' was the final stage of the struggle against the Grand Remonstrance. It was a violent effort to reverse the eleven votes by which the victory was achieved, and to constitute the leaders of the minority, to whom the highest offices in the State had meanwhile been given, masters of the House of Commons. When Charles and his armed attendants passed through the lobby of the House of Commons on the 4th of January, the Civil War had substantially begun. Clarendon himself admits as much when he calls it "the most visible introduction to all the misery that afterwards befell the king and kingdom." ' 3 1 Forster, ' Arrest of the Five Members,' pp. 184-200. 2 Ibid. pp. 376, 377. ' The attempt to seize the five members was undoubtedly the real cause of the war.' — Macaulay, Works, v. 188 (Essay on Hallam's Const. Hist.). nature. xiv.] Petition of Right to the Restoration. 577 The immediate question upon which- the quarrel be- Question of the . -, r . 1 t. i- 1 • 1 i 1 nuhtja. tween King and Parliament ultimately turned was the command of the militia. Ireland was in a state of rebel- lion, and a large army was absolutely necessary to reduce that kingdom to obedience. Justly persuaded of the utter insincerity of the king and with the evidence before them of his intention to win back his authority at the sword's point, it would have been suicidal on the part of the Commons to place in the king's hands a military force which might, and probably would, have been used for their own overthrow. The bill for regulating the militia presented to the kfng in February. 1642, by which persons to be nominated by the Commons were to be entrusted with authority over the militia of the kingdom, was an undoubted encroachment upon the king's legal pre- rogative, unjustifiable perhaps as a permanent measure, but temporarily necessary and salutary in the crisis which the king himself had provoked. ' When this bill,' says Clarendon, ' had been with much ado accepted, and first read, there were few men who imagined that it would ever receive further countenance ; but now there were very few who did not believe it to be a very necessary provision for the peace and safety of the kingdom. So great an impression had the late proceedings made upon them, that with little opposition it passed the Commons and was sent up to the Lords.' x The king's resolute refusal to pass the bill led by rapid steps to the Civil War. The constitutional period of the great contest between End of the the King and the Parliament may be said to have ended eontlst'bet'ween' with the attempted arrest of the Five Members. Charles and his The revolutionary period between 1642 and the x^iuvolu- Restoratiqn of Charles II. in 1660 — highly interesting tionaiy Period, and instructive to the student of political history, but not * 42_I strictly belonging to a work designed as a concise rela- 1 Clarendon, Hist. ii. 1 80. 578 The Stewart Period. [Ch. tion of the progress of the English Constitution— must be necessarily here passed over. Under Cromwell ' the government, though in form a republic, was in truth a despotism moderated only by the wisdom, the sobriety, and the magnanimity of the despot.' l Justice between man and man seems to have been administered as fairly as, if not more fairly than, under the monarchy, but be- tween the government and the subject arbitrary rule prevailed. The country was mapped out into military districts, under the command of major-generals, by whom every insur-rectionary movement was immediately sup- pressed and punished. The death of Cromwell exposed the nation to the danger of being ruled by a succession of petty military. despots, and almost all parties, post- poning their differences, political and religious, welcomed back the Stewart dynasty and the old civil polity of the kingdom. But although the legal constitution had been Results of the suspended during this period and revived again at the Period. accession of Charles II., the Great Rebellion of the English nation could not fail to produce certain perma- nent political and constitutional results. 3 These may be summed up under the following heads : 1. Although the cause of monarchy was gained, that of absolute monarchy was lost for ever. Henceforth royalists and revolutionists alike regarded the close union and mutual interdependence of Kings and Parlia- ments as necessary for the good government of the country. 2. The predominant influence of the House of Com- mons in the government of the nation was permanently 1 Macaulay, Hist. i. 108. 5 ' Of course, in seeming, Cromwell's work died with him ; his dynasty was rejected, his republic cast aside ; but the spirit which culminated in him never sank again, never ceased to be a potent, though often a latent and volcanic, force in the country. Charles II. said that he would never go again on his travels for anything or anybody ; and he well knew that though the men whom he met at Worcester might be dead, still the spirit which warmed them was alive and young in others.' — Bagehot, Eng. Const. (2nd ed.) p. 282. xiv.] Petition of Right to the Restoration. established, and has ever since been growing more and more marked and decisive. The overthrow of the Crown and the House of Lords had been so violent and com- plete, that the unqualified restoration of their rights and dignity failed to reinstate them in their ancient ascend- ency. The royalist House of Commons of Charles II., in its relations to the Crown and the administration of the country, inherited, defended, and transmitted to its suc- cessors the conquests of the Long Parliament. 1 579 1 A singular proof of the influence of the Commons under Charles II. is furnished by the result of the famous controversy between the two Houses as to the original jurisdiction of the Lords, in the case of Skinners. The East India Company. The Lords having entertained a petition of Skinner against the Company, overruled the defendants' plea to the jurisdiction, and condemned them to pay the plaintiff ^5,000, the Company presented a com- plaint to the House of Commons. , The Commons resolved ' that the Lords, in taking cognizance of an original complaint, and that relievable in the ordinary course of law, had acted illegally, and in a manner to deprive the subject of the benefit of the law.' The Lords, in return, voted, ' That the House of Commons entertaining the scandalous petition of the East India Company against the Lords' House of Parliament, and their proceedings, examinations, and votes thereupon had and made, are a breach of the privileges of the House of Peers ;' and that their own proceedings in Skinner's case had been ' agreeable to the laws of the land, and well warranted by the law and custom of Parliament, and justified by many Parliamentary pre- cedents ancient and ^modern.' After two conferences between the Houses ' had failed to produce an amicable settlement of the dispute, the Commons voted Skinner into custody for a breach of privilege, and resolved that who- ever should be aiding in execution of the order of the Lords against the East India Company should be deemed a betrayer of the liberties of the Commons of England and an infringer of the privileges of the House. The Lords, in return, committed to prison Sir Samuel Barnardiston, chairman of the company, and a member of the House of Commons, and imposed on him a fine of £^00. By successive adjournments and prorogations the king managed to stop the course of the quarrel during fifteen months. ' But at the meeting of Parliament in 1669, the Commons renewed the dispute. Ultimately, the king recommended an erasure from the journals of all that had passed on the subject, and an entire cessation, — an expedient which both Houses willingly embraced : and from this time the Lords have tacitly abandoned all pretensions to an original jurisdiction in civil suits. The Houses also came into collision on account of what was deemed a breach of privilege in the citation of members of the Commons to appear before the Lords as respondents in Chancery appeals. The most celebrated case is the appeal of Shirley against Sir John Fagg, in 1675, which gave rise to much intemperate behaviour on both sides, and induced the Commons to vote that there lies no appeal to the judicature of the Lords in Parliament from courts of equity. The dispute was at length only put an end to by the long prorogation from November, 1675, to February, 1677. The particular appeal of Shirley was never revived ; but the Lords continued without objection to exercise their general jurisdiction over appeals from courts of equity. Under Charles II., also, the Commons, in 1671, successfully resisted the Collisions between Lords and Commons under Charles II. Skinner v. East India Company. Skirl Fagg, 580 The Stewart Period. [Ch. xiv. 3. The complete and definitive ascendency of Pro- testantism in England was assured ; but the position of the National Church after the Restoration was no longer precisely the same as before the Rebellion. Down to the time of the Commonwealth the Church had never ceased, in legal theory and to a great extent in actual fact, to be co-extensive with the nation. At its deliberate and formal re-establishment by Charles II. and his Parliament, it was patently the Church not of the whole nation but of a majority only. Thenceforward," as the other religious communities have gradually at- tained first to toleration and then to civil equality with the members of the National Church, the ecclesiastical constitution, whilst still in theory national, has gradually come to be regarded not so much as the National Church (which in legal theory it still continues to be) as the ' Established ' Church, using the word ' established ' in its modern signification, as denoting a religious body standing in a special relation to the State in contradis- tinction from all other religious bodies. 1 4. Another important result of the revolutionary crisis through which the nation had passed was the development of an intense national antipathy to a stand- ing army, and of a wide-spread distrust of men of extreme views. right of the Lords to amend money bills {supra, p. 543). Hallam, Const. Hist. iii. 21. 1 See Guizot, English Revolution ; and Freeman, Disestablishment and Disendowment. CHAPTER XV. FROM THE RESTORATION TO THE PASSING OF THE BILL OF RIGHTS. (A.D. 1 660- 1 689.) THE reign of Charles II. 1 has been described as the Charles II. 'era of good laws and bad government ;' 2 but whilst the A-D- ' bad government was continuous, the good laws appeared only at intervals amidst many others of a violent and Chief constitu- questionable character. We shall briefly consider the ^eign^ 5 ° f principal statutes of constitutional importance. During the Commonwealth the vexatious emoluments Abolition of . derived from the military tenures had been suspended, mi ltary tenures- and at the Restoration the feeling was unanimous in favour of abolishing those intolerable feudal burthens, which had so long survived their original raison d'etre. By the 12 Car. II. c. 24.it was enacted that the Court of Wards and Liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the King's Majesty, or of any other, by knight service, and all other gifts, grants, or charges incident or arising therefrom, be totally taken away, from the 24th of February, 1645 (the date of the intermission of the Court of Wards by the Long Parliament) : And that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the king's daughter or knighting his son, and 1 By a legal fiction the first year of Charles II. 's reign was called the twelfth : king de jure, on the death of Charles I., 30th January, 1648-49 ; king de facto, at the Restoration, 29th May, 1660. 2 Fox, Reign of James II. p. 22. 5 82 The Stewart Period. [Car. Hereditary excise granted in exchange. all tenures of the king in capite, be likewise taken away: 1 And that all sorts of tenures, held of the king or others, be turned \rvto free and common socage, save only tenures in frankalmoign, copyholds, and the honorary services of grand serjeanty. By the same statute the famous rights of purveyance and pre-emption were also finally abolished. ' This Act may be said to have wrought an important change in the spirit of our constitution, by reducing what is emphatically called the prerogative of the Crown, and which, by its practical exhibition in these two vexatious exercises of power, wardship and purvey- ance, kept up in the minds of the people a more distinct perception, as well as more awe of the monarchy, than could be felt in later periods, when it has become, as it were, merged in the common course of law, and blended with the very complex mechanism of our institutions.' 2 In consideration of the surrender of these feudal privi- leges by the Crown, the Parliament resolved to make up the royal revenue to the annual sum of £ 1,200,000. As the landed gentry were the great gainers by the surrender, they ought, in justice, to have been subjected to some compensatory tax : and a proposal was made that a per- manent tax should be laid on lands held in chivalry, which, as distinguished from those held in socage, had been alone liable to the feudal burthens. But being powerful in Parliament, the landowners succeeded, though only by the small majority of two, in substituting a hereditary excise on beer and some other liquors, thus transferring their own particular burthen to the community at large. 3 1 For the incidents of feudal tenure, see supra, p. 59. Hargrave (Co. Litt. by Hargrave, 108, n. 5) considers this mention of tenures in capite to have been a mistake by the framers of the Act. ' It is, at all events, certain that the enactment was not intended to prohibit per- sons from holding immediately under the Crown. Indeed, it is in this manner that land in fee is now most usually held.'— Stephen, Com. i. 209, n. g. 2 Hallam, Const. Hist. ii. 313. 3 The excise was not a newly invented tax, having been originally im- posed by the Long Parliament in 1643. xv.] Restoration to the Bill of Rights. 583 By the 13 Car. II. c. 5, it was enacted that no petition Act against to the king or either House of Parliament, for alteration petitioning. of matters established by law in Church or State (unless the contents thereof had been previously approved, in the country by three justices or the grand jury of the county, and in London by the Lord Mayor, Aldermen, and Common Council), should be signed by more than twenty names or delivered by more than ten persons, under penalty, in either case, of £100 fine and three months' imprisonment. The right of petitioning the Crown and Parliament is Right of the one of the most valuable possessed by the subject, a nftVcrown and seems to have been exercised from the earliest and Parliament. times. But for many centuries it was practically j tsll , lstonca J J r J development. restricted to petitions for redress of private and local grievances, and the remedies prayed for were such as have since been provided by Courts of Equity and by private Acts of Parliament. The practice of petitioning on political subjects came into vogue during the period of the Great Rebellion, many petitions, signed by large bodies of people, being presented both to Charles I. and the Long Parliament ; and it was probably the recollection of the intimidation exercised by numerous bodies of petitioners in the early days of the Long Par- liament which prompted this restraining Act of Charles II. In December, 1679, in consequence of the dissatis- faction of the nation at the repeated prorogations, great exertions were made to get up numerously signed petitions to the king for the assembling of Parliament. A royal proclamation was thereupon issued, forbidding all persons to sign such petitions under pain of punish- ment. This, though it checked, did not entirely prevent the presentation of these petitions. Counter addresses were therefore sent up to the throne from grand juries, magis- trates, and many corporations, expressing their abhorrence of the petitions for the assembling of Parliament, whence the two principal parties in the country subsequently c;84 The Stewart Period. [Ch. distinguished as Whigs and Tories, obtained for the time the names of Petitioners and Abhorrers. By the Bill of Rights the right of the subject to petition the king was expressly sanctioned ; but the House of Commons for a long time showed itself intolerant of a free expression of opinion, and extremely jealous of any semblance of interference with its functions. In 1701 the Commons imprisoned five of the Kentish Petitioners until the end of the session, for praying the House to attend to the voice of the people and turn its. loyal addresses into bills of supply. Any petition expressing opinions of which the majority of the House did not approve was liable to summary rejection. In 1772, a most temperate petition signed by about 250 of the clergy and by several members of the professions of law and physic, praying for relief from subscription to the Thirty-nine Articles, was rejected by a large majority of the Commons. ' It was not until 1779/ says Sir Erskine May, ' that an extensive organization to pro- mote measures of economical and Parliamentary reform called into activity a general system of petitioning, — commencing with the freeholders of Yorkshire, and extending to many of the most important counties and cities in the kingdom. This may be regarded as the origin of the modern system of petitioning, by which public measures, and matters of general policy, have been pressed upon the attention of Parliament. Correspond- ing committees being established in various parts of the country were associated for the purpose of effecting a common object by means of petitions, to be followed by concerted motions made in Parliament. An organi- zation which has since been so often used with success was now first introduced into our political system. But as yet the number of petitions was comparatively small ; and bore little proportion to the vast accumulation of later times.' 1 The great movement for the abolition of 1 May, Const. Hist. ii. 63. xv.] Restoration to the Bill of Rights. ' 585 the slave trade, which began with a petition from the Quakers in 1782, affords the most remarkable example of the direct influence of petitions upon the deliberations of Parliament. But it was not until the latter part of the reign of George IV. that petitioning attained the develop- ment which has since distinguished it in all the great political movements. 1 Not only is the" right to petition now fully recognized, but ' the act of petitioning is free to all, and Parliament will receive any petition respectfully worded, and complying with the forms of the House, whilst the statute of 13 Car. II. has nearly become a dead letter, and under ordinary circumstances no one dreams of enforcing that Act (intended to prevent violent and tumultuous petitioning), or of inquiring, when a petition is presented, whether its conditions have been complied with. However, on the trial of Lord George Gordon, Lord Mansfield expressly decided that the said statute had not been repealed, and on the presentation of the great Chartist petition in 1848 the Act was cited when the large body of petitioners were prohibited from marching to present it to the House.' 3 In the session of 1665 the Commons took advantage Appropriation of the necessity under which the king lay, of asking for ° supp ,es " extraordinarily large grants for the prosecution of the Dutch war, to establish the important principle of appropriating the supplies to specific purposes. Sir George Downing, one of the tellers of the Exchequer, introduced into the subsidy bill granting the sum of ^1,250,000 for the war with Holland, a proviso that all moneys raised by virtue of that Act should be solely applicable to the service of the war, and should not be issued out of the Exchequer except by order or warrant mentioning that they were payable for such service. Despite the furious opposition^ Clarendon, who stigma- tized the proviso as derogatory to the honour of the 1 May, Const. Hist. ii. 64-70. 2 Broom, Const. Law, 512. 586 ' The Stewart Period. [Ch. Crown, Charles himself insisted upon this restraint on the executive power, having been persuaded that the bankers would be more easily induced to advance the money, in anticipation of the revenue, upon this better security for speedy repayment. 1 The principle of appropriating Growth of ike ' The commencement of the National Debt dates from the reign of National Debt. Charles II. During the civil war large sums of money were deposited, for safe custody, with some of the most eminent London goldsmiths, who, after the Restoration, continued to act in their new capacity as bankers, and began to advance money to the national Exchequer on the security of an assignment of some branch of the public revenue. Down to 1672 these loans were always punctually repaid ; but in that year, at the outbreak of the Dutch war, Charles II. was persuaded by the Cabal administration to issue a proclamation forbidding the payment of any money out of the Exchequer due upon existing securities, but promising, instead, to add the interest then due to the capital and to allow 6 per cent, interest on this new stock. By this iniquitous proceeding, which caused several bankers to fail and reduced many of their customers to the deepest distress, the king acquired the disposal of about £1,300,000. Interest was paid down to the year 1683, when even this was stopped ; and nothing was done for the public creditor until 1699, when an Act was passed (which was not to take effect till December 25, 1 705) charging the Excise with payment, from the latter date, of 3 per cent, interest on the principal sum of £1,328,526, redeemable on payment of a moiety, but no compensation was made for the loss of twenty- two years' arrears of interest. Five years previously, in 1694, the sum of £1,200,000, at 8 per cent, interest, had been borrowed by the Government from a body of merchants who, in return, received the privilege of incorpora- tion, by royal charter, as ' The Governor and Company of the Bank of England.' The charter was originally granted for only eleven years certain, Parliament reserving the right to redeem the debt at any time after 1705, upon giving a year's notice ; and with the redemption of the debt the charter was to expire. But far from paying off old debts, new loans were from time to time raised by the Government in a similar manner, and the Bank Charter has been prolonged by several renewals. At the end of William III.'s reign the national debt amounted to over £16,000,0000, under Queen Anne it reached the sum of ,£54,000,000. The Spanish War, which com- menced in 1739, added £31,300,000 ; and in 1763, after the Seven Tears' War, the debt amounted to £146,000,000. The American War of Inde- pendence increased the debt by £121,000,000; and £601,000,000 was added during the great French War, at the close of which it had reached the enormous total of £840,850,491, involving an annual expenditure, for interest and management, of £32,038,191. Attempts to The apprehensions excited by the steady advance of the debt caused efforts reduce it. to De made at an early period for its reduction. Sir Robert Walpole instituted a sinking fund, of which great hopes were entertained," and under the operation of which the capital amount had been reduced by about £7,000,000 prior to the outbreak of the Spanish War in 1739. Some further slight reductions were made during subsequent intervals of peace, and in 1786 Mr. Pitt established his famous permanent sinking fund of £1,000,000 a year, which was perseveringly maintained for many years, even when it was necessary to contract fresh loans for that purpose. Since 1829 the absurdity of paying off the debt by borrowing has been abandoned, and only surplus annual revenue has been applied in the reduction of the debt. From £840,850,491, its amount in 1817, it had been reduced onthe3lst xv.] Restoration to the Bill of Rights. 587 the supplies was by no means a novelty in the constitu- tion, but it had only been put into practice occasionally and at long intervals. 1 The complete authority exercised by the Commons, during the late Civil War and the Commonwealth, over the whole receipts and expenditure of the national treasury had ' accustomed the House to the idea that they had something more to do than simply to grant money;' the advantage to the nation from their control of its finances was self-evident ; and from the date of the Appropriation Act of Charles II. it became ' an undisputed principle, recognized by frequent and at length constant practice, that supplies granted by Parliament are only to be expended for particular objects specified by itself.' 2 The principle of appropriation was not, however, carried into full effect till after the Revolu- tion. But from the reign of William III. it has been the invariable usage. ' The Lords of the Treasury, by a clause annually repeated in the Appropriation Act of every session, are forbidden, under severe penalties, to order by their warrant any moneys in the Exchequer so appro- priated from being issued for any other service, and the officers of the Exchequer to obey any such warrant. This has given the House of Commons so effectual a control over the executive power, or, more truly speaking, has rendered it so much a participator in that power, that no administration can possibly subsist without its concur- rence ; nor can the session of Parliament be intermitted for an entire year, without leaving both the naval and military force of the kingdom unprovided for. ... It is to this transference of the executive government (for the of March, 1873, to £726,584,423, making, together with £4,829,100 unfunded debt, and a sum of £53,558,580, the estimated capital of existing terminable annuities, a total national debt of £784,972,103, the interest and management of which amounted to an annual charge of £26,804,853. See Earl Russell, Eng. Gov. and Const. 225 ; Hallam, Const. Hist. iii. 134, 214; Macaulay, Hist. i. 169; and the Statesman's Year-Book (by F. Martin) for 1874. 1 Supra, pp. 249, 261, 285. 2 Hallam, Const. Hist. ii. 357. 588 The Stewart Period. [Ch. phrase is hardly too strong) from the Crown to the two Houses of Parliament, and especially the Commons, that we owe the proud attitude which England has maintained since the Revolution, so extraordinarily dissimilar, in the eyes of Europe, to her condition under the Stewarts. The supplies, meted out with niggardly caution by former Parliaments to sovereigns whom they could not trust, have flowed with redundant profuseness when they could judge of their necessity and direct their applica- tion.' 1 Commission of \ n the session of 1666, the demand of large additional public accounts. ,. .,,.,... supplies for the Dutch war, coupled with the indifferent success which had attended the military operations, pro- voked suspicions of the dishonest appropriation of the money previously voted. The Commons appointed a committee to inspect the accounts of the officers of the navy, ordnance, and stores, and subsequently sent up a bill appointing commissioners to inspect the public accounts, with full powers to inquire and report as to such persons as they should find to have broken their trust. While this measure was impending, the king prorogued Parliament, but promised to issue a royal commission for the examination of the accounts. In the following session, 1667 (Lord Clarendon having fallen in the interval), the Commons re-introduced their bill, which passed as ' An Act for taking the accounts of the several sums therein mentioned.' 3 Commissioners (who were to report from time to time to the king and both Houses of Parlia- ment) were nominated in the Act and invested with most extensive powers, not only for auditing the public accounts, but for investigating frauds in the expenditure of money and employment of stores. They, were authorized to examine upon oath, to summon inquests, to commit to prison without bail all persons disobeying their orders, and to determine finally on the charge and 1 Hallam, Const. Hist. ill. 117. 2 19 Car. II. c. 9. xv.] Restoration to the Bill of Rights. 589 discharge of all accountants; and upon a certificate of their judgment the barons of the Exchequer were directed to issue process for recovering money to the king's use, as if there had been an immediate judgment of their own court. 1 The passing of this statute marked a further step in that transfer of the control of the execu- tive administration from the Crown to the House of Commons which, throughout the long existence of the ' Pensionary ' Parliament of Charles II., was quietly but steadily proceeding. Of all the statutes passed in the reign of Charles II. Habeas Corpus perhaps the most celebrated is the Habeas Corpus Act. Act ' A,D- ,679 ' But although this statute afforded to the subject a prompt and efficacious remedy in many cases of illegal imprisonment, it is a mistake to suppose that it intro- duced any new principle or conferred any new right. The right of personal liberty — the most precious of all Ancient rights — is as old as the constitution itself. It rests upon {Jw£} ies for the common law, which was merely defined and declared detemion. by Magna Charta and the stream of statutes which affirm that enactment. The subject was therefore always legally free from detention except upon a criminal charge or conviction, or for a civil debt. Besides the ancient writs De odio et atid and De homine replegiando (which were available only in particular cases), 3 any freeman im- prisoned was entitled at common law to demand of the Court of King's Bench a writ of habeas corpus, or corpus cum causa as it was called, directed to the keeper of the prison, and commanding him to bring up the body of the prisoner, with the cause of the caption "and detention, in order that the court might judge of its sufficiency, and either remand the prisoner, admit him to bail, or dis- 1 Hallam Const. Hist. ii. 360. A great deal of abuse and misapplica- tion o'f the public revenues were brought to light by the commission ; and at ' the next meeting of Parliament, in October, 1669, Sir George Carteret, treasurer of the navy, was expelled the House for issuing money without legal warrant. — Ibid. 3 Supra, pp. 117. I26 - 59Q The Stewart Period. [Ch. charge him, according to the nature of the charge. This writ issued of right, and ex debito justitiae, and could not be denied. It possessed, however, various defects. Their i. The gaoler was not bound to make an immediate inadequacy. re turn to the writ, but might wait for a second writ called an ' alias', and a third, a 'pluries;' and other expedients, such as shifting the prisoner about from prison to prison, were sometimes adopted in order to evade obedience. 2. It was doubtful whether the Court of Common Pleas could issue this writ ; and the Court of Exchequer seems never to have done so. It was also doubtful whether a single judge of the Cour,t of King's Bench could issue it during the vacation. These defects caused much delay in obtaining the writ ; but a more serious matter was the attempt made by the Crown to defeat the right altogether, by maintaining that the ' special command of the king ' was per se a sufficient cause to justify the commitment and detention of a sub- ject. This vitally important point was, as we have seen, elaborately argued in court and in Parliament, in the great case of the five knights (Darnel's case) in 1627, and was intended to have been settled by the Petition of Right which declared against it. 1 The arbitrary arrest of Sir John Eliot, Selden, and other members, on the dissolu- tion of Parliament in 1629, and the attempt made to evade the words of the Petition of Right by setting forth in the warrant and in the return to the habeas corpus a colour- able cause of commitment, ' notable contempts of the king and government and stirring up sedition,' led to the enactment of the remedial clauses concerning the writ of habeas corpus contained in the Act which abolished the Star Chamber. 3 Under Charles II. the arbitrary conduct of Lord ' Clarendon in procuring political offenders to be illegally 1 Supra, pp. 514, 516, 521. 1 16 Car. I. c. 10. Supra, pp. 526, 552. xv.] Restoration to the Bill of Rights. 591 imprisoned in distant and unknown places directed public attention to the necessity for a more speedy and effective process of enforcing the subject's right to personal liberty. 1 In April, 1668, a bill to prevent the Abortive refusal of the writ of habeas corpus was introduced in the attem P' s at 1 a remedy. House of Commons, but did not pass through committee. In March, 1669-70, another bill to the same effect was sent up to the Lords, but fell through. In the session of 1673-74, the Commons passed two bills — one to prevent imprisonment in gaols beyond the seas, the other to give a more expeditious use of the writ of habeas corpus in criminal matters. These appear to have failed in the Upper House, as similar bills were sent up to the Lords in 1675, and with a like result. In 1676 the delay and difficulty in procuring a habeas corpus were forcibly exem- plified in the case of Francis Jenkes, a citizen of London. Jenkes's case, He had delivered a speech at the Guildhall urging that ' 7 " a common council should speedily be held to petition the king, in the name of the City, to call a new Parlia- ment. For this he was summoned before the Privy Council and committed to prison. Various attempts were unsuccessfully made to obtain his enlargement. The Court of Quarter Session for Westminster refused to admit him to bail, on the plea that he had been com- mitted by a superior court; or to try him, because he was not entered in the calendar of prisoners. The Lord Chancellor, on being applied to for a habeas corpus, refused to issue it during the vacation ; and the Chief Justice of the King's Bench, to whom in the next place recourse was had, made so many difficulties that J enkes lay in prison many weeks before he was eventually enlarged on bail. At length, in 1679, three years after the proceedings in Jenkes's case, the famous Habeas Corpus Act was passed. It is intituled ' An Act for the better securing the liberty of the subject, and for Supra, p. 497- 592 The Stewart Period. [Ch. prevention of imprisonments beyond the seas,' 1 and is restricted to the case of persons imprisoned (before sentence) for ' criminal or supposed criminal matters.' Provisions of ^ enacts : — •' i. That on complaint and request in writing the Habeas by or on behalf of any person committed and charged i67q. US ' with any crime .(unless committed for treason or felony expressed in the warrant ; or as accessory or on suspicion of being accessory before the fact to any petit treason or felony ; or upon suspicion of such petit treason plainly expressed in the warrant ; or unless he is con- victed or charged in execution by legal process) the Lord Chancellor or any of the judges in vacation, upon view- ing a copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges ; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper course of judicature. 2. That such writs shall be endorsed as granted in pursuance of this Act, and signed by the person awarding them. 3. That the writ shall be returned, and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours . after demand a copy of the warrant of commitment, or shifting the custody of the prisoner from one to another without sufficient reason or authority (specified in the Act), shall for the first offence forfeit ;£ioo, and for the second offence £200 to the party grieved and be disabled to hold his office. 5. That no person once delivered by habeas corpus shall be re-committed for the same offence, on penalty of ^500. 6. That every 1 31 Car. II. c. 2. xv.] Restoration to the Bill of Rights. 593 person committed for treason or felony, shall, if he requires it, the first week of the next term, or -the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail, unless the king's witnesses cannot be produced at that time ; and if acquitted, or not indicted and tried in the second term or session, he shall be discharged from his im- prisonment for such imputed offence ; but that no person after the assizes shall be open for the county in which he is detained, shall be removed by habeas corpus till after the assizes are ended, but shall be left to the justice of the judges of assize. 7. That any such prisoner may move for and obtain his habeas corpus as well out of the Chancery or Exchequer as out of the King's Bench or Common Pleas ; and the Lord Chancellor or judges denying the same, on sight of the warrant or oath that the same is refused, forfeits severally to the party grieved the sum of £5 00. 8. That this writ of habeas ^corpus shall run into the Counties Palatine, Cinque Ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England (except persons contracting, or convicts praying, to be trans- ported, or having committed some capital offence in the place to which they are sent) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas within or without the king's dominions, on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than £500, to be recovered with treble costs; shall be disabled to bear any office of trust or profit ; shall incur the penalties of praemunire ; and shall be incapable of the king's pardon.' 1 Such is the substance of this great and important Its defects, statute. It was subject, however, to three defects. (1.) It fixed no limit on the amount of bail which might 1 Stephen, Com. iv. 25. QQ 594 The Stewart Period. [Ch. Remedied by Bill of Rights ; 56 Geo. c. 100: III. 25 & 26 Vict, c. 20. Acts against Nonconformists. be demanded. (2.) It only applied to commitments on criminal or supposed criminal charges ; all other cases of . unjust imprisonment being left to the habeas corpus at common law as it subsisted before this enactment. (3.) It did not guard against falsehood in the return. The first of these defects was remedied in 1689, by the Bill of Rights, which declared ' that excessive bail ought not to be required.' The other two (notwithstanding a serious attempt in 1757 to render the habeas corpus at common law more efficient) subsisted down to the year 18 16, when they were at length removed by 'An Act for more effectually securing the liberty of the subject/ (56 Geo. III. c. 100.) By this Act, in addition to various minor but important improvements, the statutable remedy was extended to cases of imprison- ment on non-criminal charges, and the judges were empowered to examine and determine the truth of the facts set forth in the return, and in all cases of doubt to bail the prisoner. The legislation in regard to the writ of habeas corpus terminates with the Act 25 & 26 Vict. c. 20 (passed in consequence of the decision of the Court of Queen's Bench in Anderson's case, 1 where the writ was issued into Upper Canada) which provides : That ' no writ of habeas corpus shall issue out of England by authority of any judge or court of justice therein, into any colony or foreign dominion of the Crown where her Majesty has a lawfully established court or courts of justice, having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or dominion.' In contrast with the beneficial legislation which we have been considering, is the series of odious acts against the -Nonconformists passed by the ' Pensionary ' Parlia- ment of Charles II. This Parliament (which lasted from 1 30 Law Journ. Q.B, 129. xv.] Restoration to the Bill of Rights. 595 May 8th, 1661, to January 24th, 1679) was, during the first few years of its existence, * more zealous for royalty than the king, more zealous for episcopacy than the bishops,' 1 As the terror from the late civil war abated, it gradually threw off its exuberant loyalty, and though its leaders were corrupt, they were too much alive to their own interests ever to sacrifice any Parliamentary power. But the devoted attachment to the Church and the hatred of sectaries, which distinguished its earlier sessions, continued unabated to the last. By the ' Act for the well-governing and regulating of Corporation Corporations' (13 Car. II. st. 2, c. 1.) a religious test Act > l66l> was combined with a political test. All corporate magis- trates and office-bearers were obliged to take ' the Sacrament of the Lord's Supper, according to the rites of the Church of England,' to renounce the solemn league and covenant, and to swear that they believed it unlawful, on any pretence whatever, to take arms against the king, and that they abhorred the 'traitorous position' of bearing arms by his authority against his person or his officers. 'These provisions,' says Hallam, 'struck'at the heart of the Presbyterian party, whose strength lay in the little oligarchies of corporate towns, which directly or indirectly returned to Parliament a very large propor- tion of its members.' 2 But they equally affected all other Nonconformists, and established an inequality of civil rights between Churchmen and Dissenters which con- tinued down to our own day. The political test con- tained in the corporation oath of non-resistance, having been practically renounced at the Revolution, was abolished shortly after the accession of the House of Hanover by the ' Act for quieting and establishing corporations' (5 Geo. 1. c. 6, s. 2.). The religious test was not repealed till the reign of George IV. 3 The famous Test Act (25 Car. II. c. 2.) was passed in Test Act, 1673. 1 Macaulay, Hist. i. 138. 2 Hallam, Const. Hist. ii. 330. 3 6 Geo. IV.' c. 17. QQ2 596 The Stewart Period. [Ch. 1673 'for preventing dangers which may happen from Popish recusants.' It was provoked by the 'Declaration of Indulgence ' recently issued by the king, dispensing with the laws against nonconformity. This Declara- tion, though apparently a concession to the Protestant dissenters, was really intended as a step towards the re-establishment of the Roman Catholic religion, in which the Duke of York was an avowed, Charles a secret believer. By the secret treaty of Dover, in 1670, the king, his brother, and Louis XIV. of France, had entered into a royal conspiracy against the Protestant faith and civil liberties of England. The precise terms of this treaty were not then indeed authentically known, ' but there can be no doubt,' says Hallam, ' that those who from this time displayed an insuperable jealousy of one brother, and a determined enmity to the other, had proofs enough for moral conviction of their deep conspiracy with France against religion and liberty. This suspicion is implied in all the conduct of that parliamentary oppo- sition, and is the apology of much that seems violence and faction, especially in the business of the Popish plot and the bill of exclusion.' The secret treaty of Dover ' may be reckoned the first act of a drama which ended in the Revolution.' 1 The king's declaration' of indul- gence united in opposition to it not only the zealous Churchmen, who were disgusted at the favour shown to both Papists and Dissenters, but also the Dissenters themselves, whose hatred of popery outweighed their gratification at their own toleration, as well as all lovers of liberty and law, who could not but regard the king's pretension, in explicit terms, to suspend a body of statutes, and a command to magistrates not to put them in execution, as an assertion of despotic power illegal in itself, and capable of most dangerous extension. The House of Commons voted ' that penal statutes in matters 1 Hallam, Const. Hist. ii. 386. xv.] Restoration to the Bill of Rights. 597 ecclesiastical cannot be suspended but by Act of Parlia- ment/ and addressed the king to recall his Declaration. In- his answer the king lamented that the Commons should question his ecclesiastical power, which had never, he said, been done before. To which they replied that they 'humbly considered that his Majesty had been very much misinformed : since no such power was ever claimed or exercised by any of his predecessors ; and, if it should be admitted, might tend to the interruption of the free course of the laws, and altering of the legislative power, which had always been acknowledged to reside in the king and the two Houses of Parliament.' 1 At length the king was obliged to give way, and cancelled the Declaration. But the Commons, not satisfied with this concession, extorted his assent to the Test Act, as a measure of security against popish counsellors and officials. The Act, however, was so framed as to affect with equal disqualification nearly all classes of Protestant dissenters. It provided that all persons holding any office or place of trust, civil or military, or admitted of the king's or the Duke of York's household, should publicly receive the sacrament according to the rites of the Church of England, and also take the oath of supre- macy, and subscribe a declaration against transubstan- tiation. The immediate effect of the Act was to compel Lord Clifford to resign his office of Treasurer, and the Duke of York to quit the post of Lord High Admiral. Five years later, in 1678, a Parliamentary Test was Parliamentary imposed which, for the first time, excluded Roman Test Act > l6 ? 8 - Catholic peers from Parliament. This was mainly due to the alarm excited in the nation by the discovery of the supposed Popish plot. 2 By the ' Act for the more 1 Cobbett's Pari. Hist. iv. 55 1 - , ,, ,,„.,, 3 ' It is to be remembered that there was really and truly a Popish plot in being though not that which Titus Oates and. his associates pretended to reveal— not merely in the sense of Hume, who, arguing from the general spirit of proselytism in that religion, says there is a perpetual conspiracy against all governments, Protestant, Mahometan, and Pagan, but one alert. 598 The Stewart Period. [Ch. effectual preserving the king's person and government, by disabling Papists from sitting in either House of Parlia- ment' (30 Car. II. st. 2. c. 1), it was provided that «o peer, or member of the House of Commons, should sit or vote without taking the oaths of allegiance and supre- macy, and a declaration repudiating the doctrine of transubstantiation, the adoration of the virgin, and the sacrifice of the mass. Peers and members offending were to be deemed and judged Popish recusants convict, and forfeit £500, besides suffering numerous disabilities. . While the bill was in the Lords' House, the Duke of York moved that an exception might be admitted in his favour, and this was agreed to, but only by a majority of two. 1 ActofUnifor- The provisions of the Act of Uniformity (13 & 14 " l '' ,u0 " Car. II. c. 4.), maybe divided into two classes : (r.) Clauses which continue in force at the present day, viz., those which legalize the Book of Common Prayer as then recently revised in Convocation, with a direction for its use in every parish church and other places of public worship ; and which require episcopal ordination of all persons holding ecclesiastical preferment, together with a enterprising, effective, in direct operation- against the established Protestant religion in England. In this plot the king, the Duke of York, and the King of France were chief conspirators ; the Romish priests, and especially the Jesuits, were eager co-operators. Their machinations and their hopes, long suspected, and in a general sense known, were divulged by the seizure and publication of Coleman's letters. "We have here," he says, in one of them, ' ' a mighty work upon our hands — no less than the conversion of the three kingdoms, and by that, perhaps, the utter subduing of a Protestant heresy which has a long time domineered over this northern world. There were never such hopes since the death of our Queen Mary as now in our days. God hath given us a. prince who isrbecome (I may say by miracle) zealous of being the author and instrument of so glorious a work ; but the opposition we are sure to meet with is also like to be great, so that it im- ports us to get all the aid and assistance we can." These letters were addressed to Father La Chaise, confessor of Louis XIV., and displayed an intimate connexion with France for the great purpose of restoring popery.' — Hallam, Const. Hist. ii. 423. 1 From the time of Elizabeth the oath of supremacy had been exacted from members of the House of Commons but not from the Lords (supra, p. 418). Roman Catholic Lords were now for the first time excluded from their seats; and until the reign of George IV. (10 Geo. IV. c. 7) both Houses were effectually closed to the members of that religion. xv.] Restoration to the Bill of Rights. 599 declaration from all such persons of unfeigned assent and consent to the contents of the Book of Common Prayer. (2.) Certain persecuting clauses directed against Dissenters, which have since been repealed. By the 34th section the Uniformity Act of the 1st Eliz. c. 2. was re-enacted ; and as this incorporates by reference penal clauses in the earlier Uniformity Act of 5 & 6 Edw. VI. c. 1., which again incorporates similar clauses in the Uniformity Act 2 & 3 Edw. VI. c. 1., the statute of Charles II., revived and confirmed, (a) the offences of ' declaring or speaking anything in the derogation, depraving, or despising of the Book of Common Prayer, or of anything therein contained, or any part thereof/ and of ' willingly and wittingly hearing or being present at any other manner or form of Common Prayer than is mentioned and set forth in the Book of Common Prayer,' (the punishment in each case being, for the third offence, imprisonment for life) ; and also (b) the compulsory attendance at parish churches. These provisions were not repealed till the reign of her present Majesty. 1 The 14th sec. of the Act of Charles II. declared ' that no person should presume to administer the holy sacra-, ment of the Lord's Supper ' until he should be ordained priest by episcopal ordination, under the penalty of £100 for such offence. This penalty was repealed by the Toleration Act of William and Mary. 3 By the 9th sec, not only all persons in holy orders, but all schoolmasters and persons instructing youth, were required to subscribe a declaration of non-resistance, and that they would conform to the liturgy of the Church of England as by law established. Schoolmasters and private tutors were also subjected to the penalty of three months' imprisonment if they should presume to exercise their calling without previous licence from the bishop of the diocese. That part of the declaration which related 1 7 & 8 Vict. c. 102 ; 9 & 10 Vict. o. 59. '" 1 Will, and Mar. st. I. c. 18. 600 The Stewart Period. [Ch. to non-resistance was abolished at the Revolution by- statute i Will. & Mar. c. 8 ; but the licence of private tutors, though in later times practically obsolete, was not repealed till the 9 & 10 Vict. c. 59. 1 The immediate result of the new Act of Uniformity was to eject from the Established Church about 2000 ministers, who further recruited the ranks of Protestant Conventicle Nonconformists. But these were not allowed to worship among themselves in peace. By the monstrous Con- venticle Act (16 Car. II. c. 4.) every person above sixteen years of age present at a conventicle (denned as ' any meeting for religious worship at which five persons were present besides the household ') was subjected to the penalty of three months' imprisonment for the first offence, of six for the second, and for the third to seven years' transportation. A single justice of the peace was empowered to convict for the first and second offences, (a provision which, Burnet tells us, ' was thought a great breach, on the security of the English Constitution'), but transportation for the third offence could only be awarded on conviction by a jury. Return before the expiration of the term of banishment, or escape after conviction, was made felony punishable with death. 2 Five-Mile Act, This enactment was followed, in the next session, by '" 'An Act for restraining Nonconformists from inhabiting in corporations' (17 Car. II. c. 2.) By this 'Five-Mile Act/ as it is usually termed, (1) a new test oath of non- resistance was imposed upon the clergy ; (2) every Non- conformist minister was prohibited, under the penalty of ^■40 for each offence, from coming within five miles of 1 On the Uniformity, Test, and Corporation Acts, see A. Amos, ' English Constitution in the Reign of Charles II.,' pp. 87, 135. 2 The Conventicle Act was limited in duration to three years, and expired in 1667. In 1670 it was renewed, with some mitigation of penalties, but with an extraordinary proviso which reversed the established legal principle of construing penal Acts, — ' That all clauses in the Act should be construed most largely and beneficially for suppressing conventicles, and for the justification and encouragement of all persons to be employed in the execution thereof.' — 22 Car. II. c. 1. xv.] Restoration to the Bill of Rights. 60 1 any corporate town, or of any parish, town, or place wherein he had been parson, vicar, curate, stipendiary, or lecturer, or had taken upon him to preach in unlawful assembly or conventicle ; and (3) all Nonconformists, whether lay or clerical, were restrained from teaching in any public or private school, under the penalty of £40 fine and six months' imprisonment. The provisions of these merciless statutes were not Persecution of allowed to remain a dead letter. 'The religious persecu- ' " tion was not only far more severe than it was ever during the Commonwealth, but perhaps more extensively felt than under Charles I.' 1 No less than 8000 Protestants are said to have been imprisoned during this reign, in addition to a large number of Roman Catholics. Of 1500 Quakers who were confined, 350 died in prison. 2 In 1 66 1 at the Savoy Conference, in 1669 under the Attempts at Cabal ministry, and again in 1674 through the exertions com P re enslon - of Tillotson andStillingfleet, attempts were indeed made to bring about a reconciliation between the Church and the Protestant Nonconformists ; but the real difficulty of effecting a compromise, and the unyielding temper of both parties, caused every effort at comprehension to fail. It was in the year 1679, during the intense public Origin of the agitation caused by the introduction of a bill to exclude ^f s ^ nd Tory the Duke of York from the throne, on the ground of his professed Romanism, that the now familiar names of Whig and Tory were first applied to the two great political parties in the State. The king, having dissolved Parliament on the 27th May, in order to quash the exclusion project, numerous petitions were sent up from all parts of the country praying for the speedy meeting of a new Parliament. These were met by others -from the adherents of the court party, expressing abhorrence at 1 Hallam, Const. Hist. ii. 353. _ 2 Neal, Hist, of the Puritans, v. 17 ; Delaune, Plea for Nonconformists; Short's Hist. 559- 6o2 . The Stewart Period. [Ch. the attempt to coerce the king to summon Parliament, as an encroachment on the royal prerogative. The rival parties were termed in consequence '' Petitioners ' and ' Abhorrers,' names which were soon afterwards changed for ' Whig,' and ' Tory.' x Names of Whig ' It is a curious circumstance,' observes Lord Macaulay, 'that one of these nicknames was of Scotch and the other of Irish origin. Both in Scotland and in Ireland misgovernment had called into existence bands of desperate men whose ferocity was heightened by re- ligious enthusiasm. In Scotland, some of the persecuted Covenanters, driven mad by oppression, had lately mur- dered the primate, had taken arms against the Govern- ment, had obtained some advantages against the king's forces, and had not been put down till Monmouth, at the head of some troops from England, had routed them at Bothwell Bridge. These zealots were most numerous among the rustics of the western lowlands, who were vulgarly called Whigs. Thus the appellation of Whig was fastened on the Presbyterian zealots of Scotland, and was transferred to those English politicians who showed a disposition to oppose the court, and to treat Protestant Nonconformists with indulgence. The bogs of Ireland at the same time afforded a refuge to Popish outlaws, much resembling those who were afterwards known as Whiteboys. These men were then called Tories. The name of Tory was therefore given to Englishmen who refused to concur in excluding a Roman Catholic prince from the throne.' 3 But although the Whigs and Tories were first so designated at the time of the Exclusion Bill, the germs of the two parties may be discerned in the opposition of the Puritan members of the Lower House to the upholders of the royal prerogative under Elizabeth, and their corporate existence may be carried back at least to the schism in the constitutional party in the Commons which manifested 1 Supra, p. 583. 2 Macaulay, Hist. i. 202. xv.] Restoration to the Bill of Rights. 603 itself during the debates on the Grand Remonstrance in 1641. 1 Both Whigs and Tories, it is to be observed, agreed in Difference maintaining the system of government by King, Lords, between Ae and Commons, and all the ancient and fundamental two parties. institutions of the English constitution. But there was, nevertheless, a wide and irreconcilable difference of opinion between them. The Tories looked towards the Crown, and thought that the public good was best subserved by the exaltation of the royal prerogative ; the Whigs looked towards the people, whose welfare they regarded as the end and object of all governments. ' They differed,' says Hallam, ' mainly in this : that to a Tory the constitution, inasmuch as it was the constitu- tion, was an ultimate point, beyond which he never looked, and from which he thought it altogether im- possible to swerve ; whereas a Whig deemed all forms of government subordinate to the public good, and therefore liable to change when they should cease to promote that object. Within those bounds which he, as well as his antagonist, meant not to transgress, and rejecting all unnecessary innovation, the Whig had a natural tendency to political improvement, the Tory an aversion to it. The one loved to descant on liberty and the rights of mankind, the other on the mischiefs of sedition and the rights of kings. Though both, as I have said, admitted a common principle, the maintenance of the constitution, yet this made the privileges of the subject, that the Crown's prerogative, its peculiar care. Hence it seemed likely that, through passion and cir- cumstance, the Tory might aid in establishing despotism, or the Whig in subverting monarchy. The former was generally hostile to the liberty of the press, and to free- dom of inquiry, especially in religion ; the latter their friend. The principle of the one, in short, was ameliora- tion, of the other, conservation.' 2 1 Supra, p. 555- 2 Hallam, Const. Hist. iii. 199. 604 • The Stewart Period. [ch. Failure of the The failure of the Exclusion Bill and the excesses of ^prostration tne opposition were followed by a violent reaction in of the Whigs, public opinion, which laid the Whig party prostrate, and enabled Charles II. to enjoy, during the last years of his Despotic power reign, that despotic power for which he had long been during the last languidly scheming. ' It is difficult to say,' Lord Russell years of his jj as remarked, ' for what reason Charles, a witty and reign. heartless man of pleasure, embarked in the vast under- taking of making himself absolute. Perhaps his easy temper made him yield to the suggestions of his brother ; perhaps he merely consented to the advice of his courtiers. The ready way of accomplishing this design, once adopted, was, as he conceived, to obtain money and troops from France. And as his father's throne had been overturned by religious fanaticism, he proposed to lay the foundation of his own upon a religion of blind obedience. The scheme not running on smoothly, how- ever, he gave it up, partly from laziness and partly from prudence, contenting himself with charitable donations from France from time to time. The virulent opposition of Shaftesbury, and the attempt to exclude his brother from the throne, again roused him to exertion ; and the discovery of the Rye House plot afforded him a tolerable pretext for ridding himself of all his considerable enemies. Thus, without activity or anxiety, by merely taking advan- tage of events as they arose, he procured for himself an au- thority which those of his family who made kingcraft their occupation never possessed. He subdued the liberties of England, because it gave him less trouble than to maintain them. But still, though unsuccessful, the men who could propose and carry through the House of Commons a bill for the exclusion of the next heir to the throne evinced a spirit of honesty and freedom which no hazard could quell. The Bill of Exclusion was the legal warning of the Revolution.' x 1 Earl Russell, Eng. Gov. and Const, p. 83. xv.] Restoration to the Bill of Rights. 605 JAMES II. ascended the throne in 168$, with a fixed James II. design to make himself an absolute monarch, and to His' despotic subvert the established Protestant faith. designs. In many respects circumstances appeared peculiarly Circumstances favourable to his despotic aims. The popular party were ^^^ l ° for the time completely crushed. The determination of Charles II.'s last Parliament, in 168 1, to accept of no- thing but the Exclusion Bill had been punished by a sudden dissolution, after a session of only one week ; and in violation of the plain letter of the law, which required that no longer interval than three years should elapse between the dissolution of one Parliament and the as- sembling of another, no writs had since been issued for an election. The High Church and Tory party were loud in their advocacy of hereditary despotism as a divinely-ordained institution, and the University of Ox- ford had but recently (July, 1683) published a decree asserting the necessity of passive obedience, and con- demning the works of Milton, Buchanan, and others, containing contrary propositions, to be publicly burnt. If it should be found necessary or expedient to summon a Parliament, steps had been taken to render that assembly as subservient to the Crown as its prede- cessors had been under Henry VIII. In 1683 an information quo warranto had been filed in the King's Bench against the Corporation of London, which, on the ground of some alleged irregularities, was adjudged to have forfeited its charters. The corporation was then remodelled in such a manner as to render it a mere tool of the court. The same policy was pursued during the next five years against several other obnoxious corpora- tions ; many others were intimidated into making quasi voluntary surrenders, receiving in return new charters, framed on a far more oligarchical model, and reserving to the king the right of appointing the first members ; l 1 Judge Jeffreys, on the northern circuit, in 1684, is said to have ' made 6o6 The Stewart Period. [Ch. The customs illegally levied. A Parliament summoned. Its servile character. and the general result was to confine the power of returning a large proportion of the members of the House of Commons to nominees of the Crown. In addition, Louis XIV, of France was ready and anxious to aid the designs of his brother monarch with money and men. James began his reign by an illegal proclamation ordering the continued payment of the customs duties, which had been granted only for the late king's life. With much misgiving, the king yielded to the advice of his ministers and summoned a Parliament. 1 ' Those who look,' says Hallam, ' at the debates and votes of this assembly, their large grant of a permanent revenue to the annual amount of two millions, rendering a frugal prince, in time of peace, entirely out of all de- pendence on his people ; their timid departure from a resolution taken to address the king on the only matter for which they were really solicitous — the enforcement of the penal laws — on a suggestion of his displeasure ; their bill entitled, " For the preservation of his Majesty's person," full of dangerous innovations in the law of treason, especially one most unconstitutional clause, that all the charters, like the walls of Jericho, fall down before him, and returned laden with surrenders, the spoils of towns.' — North's Examen, 626, cited in Hallam, Const. Hist. ii. 455. 1 James ' was painfully anxious to exculpate himself from the guilt of having acted undutifully and disrespectfully towards France. He led Barillon into a private room, and there apologized for having dared to take so important a step without the previous sanction of Louis. " Assure your master," said James, " of my gratitude and attachment. I know that with- out his protection I can do nothing. I know what troubles my brother brought on himself by not adhering steadily to France. I will take good care not to let the Houses meddle with foreign affairs. If I see in them any disposition to make mischief, I will send them about their business. Explain this to my good brother. I hope that he will not take it amiss that I have acted without consulting him. He has a right to be consulted ; and it is my wish to consult him about everything. But in this case the delay, even of a week, might have produced serious consequences. " On the following morning Rochester proceeded to ask Barillon for money. " It will be well laid out," he said ; "your master cannot employ his revenues better. Represent to him strongly how important it is that the King of England should be dependent not on his own people, but on the friendship of France alone."' — Macaulay, Hist. i. 356. xv.] Restoration to the Bill of Rights. 607 anyone moving in either House of Parliament to change the descent of the crown should incur the penalties of that offence ; their supply of £700,000, after the suppres- sion of Monmouth's rebellion, for the support of a stand- ing army ; will be inclined to believe that, had James been as zealous for the Church of England as his father, he would have succeeded in establishing a power so nearly despotic that neither the privileges of Parliament nor much less those of private men would have stood in his way. Nothing less than a motive more universally operating than the interests of civil freedom would have stayed the compliant spirit of this unworthy Parliament, or rallied, for a time at least, the supporters of indefinite prerogative under a banner they abhorred. We know that the king's intention was to obtain the repeal of the Habeas Corpus Act, a law which he reckoned as de- structive of monarchy as the Test was of the Catholic religion. And I see no reason to suppose that he would have failed of this, had he not given alarm to his high- church Parliament by a premature manifestation of his design to fill the civil and military employments with the professors of his own mode of faith.' 1 The opposition shown by the Parliament to the king's its opposition to avowed intention of keeping Romish officers in his ^sigJTto over- service, contrary to the provisions of the Test Act, was throw the Test punished by a hasty prorogation ; and although Parlia- by prorogation ment was continued in existence by further prorogations ^JJ^f 6 for about eighteen months before being dissolved, it was never again assembled during James's reign. Taking advantage of Monmouth's late insurrection, increase of the the king increased the number of regular troops in England from 6,000 to about 30,000 ; 2 and as these standing army. 1 Const. Hist. iii. 5°- .,. , . „ . , , , , •*,„,. ., 2 Standing Army. — The military force in England had long consisted Standing Army. of two kinds of troops, which may be classified as constitutional and Two kinds oj unconstitutional. troops, onstu (1) The constitutional forces, consisting ot («) the feudal miutia, bound tutional and un- bv the tenure of their lands to serve the king both at home and abroad constitutional. 6o8 The Stewart Period. [Ch. were largely officered by Roman Catholics, he trusted that he had rendered himself independent of all forcible (i. ) Consti- tutional : (a.) Feudal militia. (b. ) Alodial militia. (ii.) Unconsti- tutional: (a.) Royal body-guard. Garrisons. (b. ) Stipen- diary troops. Conscripts. Statutes against compulsory levies. Troops raised ,by contract. Revival of compulsion under the Tudors. Act of 16 Car. I. against it. Origin of standing army during the Civil War. Disbanded at the Restoration. (summoned for the last time to render personal service in the expedition of Charles I. against the Scots in 1640, and extinguished by the Act 12 Car. II. c. 24, abolishing the military tenures), and (b) the alodial or national militia, bound exclusively to service at home, have been already described (supra, pp. 58, 59, 88, 89, 178-186). (2) The unconstitutional forces were also of two kinds: (a) those of a more or less permanent character, such as the small body guard of the sovereign (supra, p. 333) and the garrisons, insignificant in number, main- tained in a few fortified places — the Tower of London, Portsmouth, Dover, Tilbury, and, before the union of the crowns, Berwick and some other places on the Scottish border : (b) those raised for special emergencies, comprising the stipendiary troops, which even in feudal times were regularly employed by English kings for the purposes of foreign warfare, and the levies raised by compulsory conscription. Edward I. and Edward II. on several occasions had recourse to compulsory conscription. But this was clearly illegal ; and accordingly the first Parliament of Edward III. passed a statute (1 Edw. III. c. 5) 'That no man from henceforth should be charged to arm himself otherwise than he was wont in the time of the king's progenitors ; and that no man be compelled to go out of his shire but when necessity requireth and sudden coming of strange enemies into the realm ; and then it shall be done as hath been used in times past for the defence of the realm.' This statute Edward endeavoured to evade by calling, not on individuals, but on the counties and chief towns to furnish him with troops. The Parliament met this new demand by a statute (25 Edw. III. c. 8) pro- viding ' That no man shall be constrained to find men-at-arms, hoblers, nor archers, other than those who hold by such service, if it be not by common consent and grant in Parliament.' Both these statutes were confirmed in the fourth year of Henry IV. (c. 13K For some time compulsory levies for foreign warfare were discontinued, and a system of contracting with men of rank and influence to raise troops at a high rate of pay was adopted. But . as the great cost of stipendiary troops caused our kings to disband them as soon as the particular necessity for which they were engaged had ceased, the country escaped the danger of a standing army. Under the despotic sway of the Tudors the prerogative of pressing men for military service out of the kingdom was to some extent revived. Its exercise by Charles I. called forth, as we have seen, the declaratory statute against impressment of the 16th year of his reign (supra, p. 553). The great object of Charles and of Strafford was to obtain a standing army ; but the popular party in Parliament, aware that the free monarchies of the Continent had been turned into despotisms through this very means, offered a determined opposition. The outbreak of the civil war ultimately turned upon the question who should command the military forces ; and it was in the civil war that the system of standing armies in this country originated. By the ' Instrument of Government,' in 1653, which invested Cromwell with the title of ' His Highness the Lord Protector,' provision was made for the support of a regular army of 30,000 men; and the military subjection in which Cromwell held the country excited amongst all parties a deep-rooted antipathy to a standing army_ At the Restoration the people clamoured for the disbandment of the army of the Commonwealth, to which Charles II. somewhat reluctantly assented. General Monk's foot regiment (the Cold- stream) and one other of horse were, however, retained in the king's ser- vice ; another was formed out of troops brought from Dunkirk ; and these, amounting in 1662 to 5000 men, formed, under the name of guards, the nucleus of the present regular army. xv.] Restoration to the Bill of Rights. 609 opposition. Throwing off all disguise, he soon made it The kin g„ <„ , ..,,-., ,. throws off all apparent that, with a bench of judges to pronounce his disguise. Towards the end of Charles II. 's reign the garrison of Tangier (consisting of one regiment of horse and two of foot) was recalled to England, and raised the numbers of the regular force to about 7000 foot and 1 700 cavalry and dragoons. James II. endeavoured to make himself absolute by means of a great standing army. Taking advantage of Monmouth's insurrection, he made large additions to the military force left by his brother, and brought up their numbers to about 30,000 men. He formed a vast camp at Hounslow for the purpose of overawing London, and induced the judges to pronounce sentence of death on deserters contrary to both the letter and spirit of the law. But under both Charles II. and James II. the Parliament took every opportunity of opposing the permanent retention of the troops ■which were necessarily raised from time to time for special purposes. When, in 1667, 12,000 fresh troops were hastily levied for the Dutch war, the Commons at once came to an unanimous resolution to request the king to disband them immediately upon the conclusion of peace. Similarly, in 1673, arter fresh levies had been raised for the second Dutch war, the Commons resolved ' that the continuing of any standing forces in this nation, other than the militia, is a great grievance and vexation to the people ; ' and when, in 1678, Charles II. suddenly levied 20,000 men, on the pretext of a war with France, the Commons only consented to vote supplies on condition that these troops should be disbanded. One of the principal articles of Clarendon's impeachment was that he had advised ' the raising of a standing army and to govern the kingdom thereby ' {supra, p. 497). The illegality of raising or keeping a standing army within the kingdom in time of peace, except with consent of Parliament, is expressly declared by the Bill of Rights. This declaration has been regularly repeated in the Mutiny Act (passed for the first time in 1688, for one year only, and annually renewed ever since), together with the further declaration ' that no man can be forejudged of life or limb, or subjected in time of peace to any kind of punishment within this realm by martial law, or in any other manner than by judgment of his peers and according to the known and established laws of this realm.' Then follow provisions for embodying an army for the safety of the kingdom and its dependencies, and authorizing the Sovereign to make articles of war for the government of the troops by martial law. Although the maintenance of a military force has been absolutely dependent, since the Revolution, upon the will of Parliament, so strong was the national prejudice under William III. against a standing army, that in 1697, after the Peace of Ryswick, the Commons insisted upon the dismissal of the king's Dutch guards and on the reduction of the number of troops to 7000 (afterwards increased to 10,000) for the defence of England and„i2,ooo for Ireland The great victories of Marlborough reconciled the nation some- what to' the idea of a standing army ; and it was, moreover necessary, during the life of the Pretender, in order to prevent the Scotch and other adherents ot the exiled Stewarts from rising in rebellion ; yet, under George I. and down to the close of the eighteenth century, the ordinary peace establishment, exclusive of the troops in Ireland, but including the garrisons of Minorca and Gibraltar, but slightly exceeded 17,000 men. _ In 1731, Parliament manifested its jealousy of the military power by passing an Act (8 Geo. II c 10) forbidding any troops to come within two miles of any place, except the capital or a garrison town, during an election. In the same spirit the Commons resoled, in 1741, consequent upon the military haying been called in to quell some riotous proceedings at a Westminster election, that the oresence of a regular body of armed soldiers at an election of members "J™ in Parliament is a high infringement of the liberties of the subject, R R Growth of stand- ing army under Charles II. and James II. Parliamentary opposition to it. Declared illegal by Bill of Rights. The Mutiny Act. judice against standing a?my after the Revo- lution. to serve in 6io The Stewart Period. [Ch. The dispensing power. commands, and an army to enforce them, constitutional limitations would no longer be suffered to stand in the way of his despotic designs. 1 His first step was to procure a judicial decision in favour of his assumed prerogative of dispensing with the observance of the laws. 3 Having carefully eliminated from the bench such of the judges as would not promise to decide according to his wishes, 3 and having appointed, others in their stead, a collusive action was brought The nation re- conciled to a 1 army after the Penin- sular War. Earl Russell's remarks on a r army. a manifest violation of the freedom of elections, and an open defiance of the laws and constitution of this kingdom ; ' and the persons concerned in the matter were ordered to attend the House, and received on their knees a severe reprimand from the Speaker. The French Revolution and the Peninsular War not only finally reconciled the nation to a standing army, but excited a desire in many — the country gentlemen especially — for a very large permanent force. In proposing for the peace establishment of the United Kingdom, in 1816, an army of 50,000 men (in addition to 100,000 to be distributed among the colonies, reliefs, France, and India), the Ministers of the Crown said ' it was rendered necessary, first on account of the increase of the military establishments of continental states, and the necessity of preserving our station among the Powers of Europe ; and, secondly, because of the increase of population, and the military services required in collecting the revenue and executing the laws.' 'These reasons,' observes Earl Russell (Eng. Const. 281), ' may serve as a guide to teach the people of England for what purposes an army ought not to be kept up. They afford a limit and a rule for the amount of our military force. As long as the numbers of the army can be proved to be indispensable for maintaining garrisons in fortified places and preserving a nucleus for war, the nation may consider general harangues against a standing army as puerile declamation ; but when they hear it urged that it is necessary to assimilate our peace establishment to that of the Continental Powers, and that a large army is rendered necessary by the increase of our population, then it is time for them to rouse them- selves and shake off, before it is too late, the burthen of a military govern- ment.' The vast scale upon which warfare has been conducted in recent years has, of course, rendered it necessary that the 'nucleus,' even for purely defensive purposes, should be much larger than formerly. — On the standing army, see Earl Russell, Eng. Const. 269-281 ; Hallam, Mid. Ages, i. 266, iii. 45, 46, Const. Hist. iii. 105-107, 259-263 ; Macaulay, Hist. Eng. (Works, ed. 1866), i. 94-97, 227-233, 525, 526, iv. 331-349. 1 Hallam, Const. Hist. iii. p. 60. 2 On the suspending and dispensing power, see supra, p. 289. 3 ' I am determined,' said the king to Chief Justice Jones, of the Common Pleas, ' to have twelve judges who will be all of my mind as to this matter.' 'Your Majesty,' answered the Chief Justice, ' may find twelve judges of your mind, but hardly twelve lawyers. ' He was then plainly told that he must either give up his opinion or his place. ' For my place,' he answered, ' I care little. I am old and worn out in the service of the Crown ; but I am mortified to find that your Majesty thinks me capable of giving a judgment which none but an ignorant or a dishonest man could give. ' He was dis- missed, together with Montague, Chief Baron of the Exchequer, and two puisne judges, Neville, and Charlton. — Macaulay, Hist. i. 585. xv.] Restoration to the Bill of Rights. 611 against Sir Edward Hales, a recent convert to Romanism, Hales' case. for the penalty incurred by accepting a military command without taking the oath and making the subscription required by the Test Act. The defendant having pleaded, in answer to the Act, a dispensation from the Crown, eleven out of the twelve judges decided in favour of the prerogative ; grounding their decision upon slavish maxims of absolute power which were capable of extension far beyond the immediate case. 1 The dispensing power, which the courts of law had thus solemnly recognized, was now vigorously and systematically exercised. Four Roman Catholic peers, Powis, Bellasyse, Arundell, and Dover, with Father Petre, a Jesuit, were sworn of the Privy Council. Several clergymen who had apostatized to Romanism were authorized to hold benefices without complying with the requirements of the Act of Uniformity ; the Vice-Chan- Deprivation of cellor of Cambridge was deprived of his office for declin- J^u^ tf'cam- ing to confer, at the king's request, an academical degree bridge. upon Alban Francis, a Benedictine monk ; and the fellows of Magdalen College, Oxford, were expelled for Expulsion of refusing to elect as their president a Roman Catholic Magdalen™ ° nominee of the Crown. These last two acts of tyranny College, Oxford, were accomplished under the summary and arbitrary New High' jurisdiction of a new ' court of Commissioners for Ec- cour™ 1SS ° n clesiastical Causes,' which the king had recently estab- lished in direct defiance of the Act of the Long Parlia- ment (16 Car. I. c. n) abolishing the High-Commission Court, and of the more recent statute, 13 Car. II. c. 12, which, while reinstating the clergy in the ecclesiastical power, had expressly forbidden the creation by commis- sion of any similar court. 3 1 Godden-v. Hales, 11 State Trials, 1166; Hallam, Const. Hist. iii. 62. 2 The whole government of the Church was entrusted to seven commis- sioners (three clerics and four laymen), of whom the Chancellor Jeffreys was the chief. ' The words in which the jurisdiction of these officers was described were loose, and might be stretched to almost any extent. All colleges and grammar schools, even those which had been founded by R K 2 6l2 The Stewart Period. [Ch Declaration for Liberty of Conscience. Its motive. It is generally resisted by the Noncon- formists. In April, 1687, James published his famous Declaration for Liberty of Conscience, declaring it to be his ' royal will and pleasure that from henceforth the execution of all and all manner of penal laws, in matters ecclesiastical, for not coming to church, or not receiving the sacrament, or for any other non-conformity to the religion estab- lished, or for or by reason of the exercise of religion in any manner whatsoever, be immediately suspended ; and the further execution of the said penal laws, and every of them, is hereby suspended.' ' The motive of this declaration,' Hallam has remarked, ' was not so much to relieve the Roman Catholics from penal and incapacitating statutes (which, since the king's accession and the judgment of the court of King's Bench in favour of Hales, were virtually at an end), as, by extending to the Protestant dissenters the same full measure of toleration, to enlist under the standard of arbitrary power those who had been its most intrepid and steadiest adversaries.' 1 The Nonconformists, how- ever, for the most part mistrusted the insidious advances the liberality of private benefactors, were placed under the authority of the new board. All who depended for bread on situations in the Church or in academical institutions, from the Primate down to the youngest curate, from the Vice-Chancellors of Oxford and Cambridge down to the humblest pedagogue who taught Corderius, were subjected to this despotic tribunal. If any one of those many thousands was suspected of doing or saying any- thing distasteful to the Government, the Commissioners might cite him before them. In their mode of dealing with him they were fettered by no rule. They were themselves at once prosecutors and judges. The accused party was to be furnished with no copy of the charge. He was to be examined and cross-examined. If his answers did not give satisfaction, he was liable to be suspended from his office, to be ejected from it, to be pro- nounced incapable of holding any preferment in future. If he were contu- macious, he might be excommunicated, or, in other words, be deprived of all civil rights and imprisoned for life. He might also, at the discretion of the court, be loaded with all the costs of the proceeding by which he had been reduced to beggary. No appeal was given. The Commissioners were directed to execute their office notwithstanding any law which might be, or might seem to be, inconsistent with these regulations. Lastly, lesf any person should doubt that it was intended to revive that terrible court from which the Long Parliament had freed the nation, the new Visitors were directed to use a seal bearing exactly the same device and the same super- scription with the seal of the old High Commission.' — Macaulay, Hist, i, 594- 1 Const. Hist. iii. Ji. xv.] Restoration to the Bill of Rights. 6r3 of the king, and, against their own immediate interests, joined the Church in resisting a measure which they well knew had for its ultimate object the restoration of Romanism. It is to be observed that this declaration went much further than the prerogative recognized in Hales' case, of dispensing with prohibitory statutes in the case of particular individuals, sweeping away, as it did in effect, a whole series of laws made for the security of the established religion. It amounted, in the words of Mr. Justice Powell, ' to an abrogation and utter repeal of all the laws ; for I can see no difference, nor know any, in law, between the king's power to dispense with laws ecclesiastical and his power to dispense with any other laws whatsoever. If this be once allowed of, there will need no Parliament. All the legislature will be in the king.' » After a year's interval, during which the king had Second Decla- made rapid and open advances towards Romanism, diligence, the Declaration of Indulgence was published a second time followed by an order in council directing it to be Ordered to be , , , read in all read in all churches, and for that purpose to be sent and c h urc hes. distributed throughout their several dioceses by the bishops. A humble petition of the primate and six other prelates 2 against this order, presented to the king in his own closet, was pronounced a seditious libel ; and the seven bishops were sent to the Tower, and soon after- imprisonment wards brought to trial before the Court of King's Bench. ^ d th p e ro s S even 011 Amidst the enthusiastic rejoicings of the whole nation, Bishops, the jury returned a verdict of acquittal (30 June, 1688). ' The prosecution of the bishops,' says Macaulay, ' is an event which stands by itself in our history. It was the first and last occasion on which two feelings of tre- mendous potency— two feelings which have generally 1 Judgment of Mr. Justice Powell in the ' Case of the Seven Bishops,' Br 2 0< TW°n n ames we're^ancroft, Archbishop of Canterbury ; Lloyd, Bishop „f Qt A«mh • Ken, of Bath and Wells; Trelawney, of Bristol ; Lake, of Chihetten Tute;, of Ely ; and White, of Peterborough. 614 The Stewart Period. [Ch Invitation to the Prince of Orange. James endea- vours to retrace his steps. been opposed to each other, and either of which, when strongly excited, has sufficed to convulse the State — were united in perfect harmony. Those feelings were, love of the Church and love of freedom. During many generations every violent outbreak of High-Church feel- ing, with one exception, has been unfavourable to civil liberty ; every violent outbreak of zeal for liberty, with one exception, has been unfavourable to the authority and influence of the prelacy and the priesthood. In 1688 the cause of the hierarchy was for a moment that of the popular party. More than nine thousand clergymen, with the primate and his most respect- able suffragans at their head, offered themselves to endure bonds and the spoiling of their goods for the great fundamental principle of our free constitution. The effect was a coalition which included the most zealous Cavaliers, the most zealous Republicans, and all the intermediate sections of the community. The spirit which had supported Hampden in the preceding genera- tion, the spirit which, in the succeeding generation, sup- ported Sacheverell, 1 combined to support the archbishop, who was Hampden and Sacheverell in one. . . . The names of Whig and Tory were for a moment forgotten. The old Exclusionist took the old Abhorrer by the hand. Episcopalians, Presbyterians, Independents, Baptists, forgot their long feud, and remembered only their common Protestantism and their common danger.' 2 On the day on which the verdict of not guilty was returned in the case of the seven bishops, the celebrated invitation, signed by the earls of Danby, Devonshire, and Shrewsbury, Lord Lumley, Compton, Bishop of London, Admiral Edward Russell, and Henry Sydney, was despatched to William, Prince of Orange, and Stadtholder of the Dutch Commonwealth. James now endeavoured to retrace his steps, but it was too late to regain the confidence of his people. Louis XIV. 1 Supra, p. 501. - Macaulay, Hist. ch. viii. (Works, ii. 182.) xv.] Restoration to the Bill of Rights. 615 bestirred himself to assist, his royal brother. He gave Efforts of notice to the States-General that he was strictly hUbehalf. ' bound in friendship and alliance with his Britannic Majesty, and that any attack on England would be con- sidered as a declaration of war against France. But James, who appeared bent on his own ruin, formally dis- owned the existence of any such alliance between France and England ; and Louis, in disgust, withdrew his troops from the Netherlands and poured them into Germany thus removing from before William one of his greatest obstacles. On the 5th November, 1688, William landed at Landing of the it. t-. ■ t Prince of Torbay, in Devonshire. It is unnecessary to enter at orange, length into the details of a revolution which the elo- quent pages of Macaulay have rendered generally familiar. After the second flight of James (23rd December), an Flight of James, assembly composed of the lords spiritual and temporal then in London (about .70 in number), and of all persons William is rco nested, to who had been members of the House of Commons in the assume the reign of Charles II., together with the lord mayor, alder- p ™^^ t men, .and fifty of the common council of London, re- quested the Prince of Orange to assume the provisional government of the country, and to summon all the con- stituent bodies of the kingdom to send up represen- tatives to Westminster, to a Convention Parliament for the settlement of the affairs of the nation. The Convention Parliament met on the 22nd January } The Convention 1688-9. The nation was at this time divided into six Pariiament - parties of which two — the blind enthusiasts for James II., Parties in the who wished to recall him without stipulations, and the natx ° n ^ Ultra-Republicans, who wished to set up a Common- wealth were too small and insignificant to exercise any appreciable influence. The bulk of the nation and of the Convention was divided among the remaining four parties, three being Tories of varying shades, and the fourth and largest the Whig party. Of the Tories, (1) Sherlock's party, which was especially strong among the 6i6 The Stewart Period. [Ch. Resolutions of the Commons : {i.) That James clergy, wished that a negotiation should be opened with James for his restoration, on such conditions as might fully secure the civil and ecclesiastical constitution of the realm. (2) Sancroft's party maintained that the king's stupidity, perverseness, and superstition, entitled the nation to treat him as though he were insane : they wished, therefore, to hand over the administration of the kingdom to a Regent named by the Estates of the Realm, while continuing the title of James as nominal king. (3) Danby's party held that the king, by his flight, had abdicated his power and dignity. But as the throne of England could not be vacant for one moment, the crown had legally devolved on the next heir, who was the Princess of Orange. For as to James's infant son, his birth, they said, had been attended by such suspicious circumstances that it was impossible to admit his claim without inquiry ; * and as those who called themselves his parents had removed him to France, together with all those French and Italian women of the bedchamber who, if there had been foul play, must have been privy to it, inquiry had been rendered impossible. It only remained then to proclaim the Princess of Orange, who was actually queen-regent, (4) The Whigs maintained that James, hav- ing, by the gross abuse of his power, broken the mutual contract between king and people — expressed on one side by the coronation oath and on the other by the oath of allegiance — had forfeited the crown ; that the throne was therefore vacant ; and that it was the right of the nation to elect a new king, and to impose upon him such condi- tions as might ensure the country against mis-government. In the Upper House the Tories, who for the most part favoured the scheme of a Regency, were in a majority : in the Commons the Whigs greatly predominated. On the 28th January the Commons passed their cele- brated resolutions: (1.) ' That King James II. having 1 The legitimacy of James II. 's son is now admitted by historians, but it was fiercely disputed at the time. xv.] Restoration to the Bill of Rights. 617 endeavoured to subvert the constitution of the kingdom, IL ^ abdi_ cat eel the by breaking the original contract between king and peo- government, pie, and having, by the advice of Jesuits and other wicked f" d that the throne was persons, violated the fundamental laws, and withdrawn thereby vacant. himself out of the kingdom, has abdicated the govern- ment, and that the throne is thereby vacant.' (2.) ' That (ii.) That it hath been found by experience inconsistent with the f°PoSsh ent by safety and welfare of this Protestant kingdom to be' prince was ln- " , 1 t> . , . , """ consistent with governed by a Popish prince. the sa f etv f the To the second resolution, though obviously irrecon- kin g dom - cilable with the doctrine of indefeasible hereditary thel^ords! 1 m right, the Lords at once gave their unanimous assent ; but the first, which was debated clause by clause,' en- countered much opposition in the Upper House. The first division took place on the question whether or not there should be a Regency ; and a Regency was nega- tived by fifty-one votes against forty-nine. The Lords then voted, by fifty-three to forty-six, that there was an original contract between the king and the people. They agreed, without a dissentient voice, to the Com- mons' statement as to the mis-government of James, but substituted the word ' deserted ' for ' abdicated,' and rejected the final and most important clause ' that the throne was thereby vacant,' by a majority of fifty-five to forty-one. William had shown his wisdom and tact by leaving "William . . 1 r 11 , • • i j -j announces his the nation to settle itself. But a crisis had now arrived i nte ntions. when it became necessary for him to explain his views. Sending for Halifax, Danby, Shrewsbury, and some other political leaders of note, he disclaimed any right or wish to dictate to the Convention, but gave them clearly to understand that he would not accept the position of Regent, nor yet that of King Consort with only such a share in the administration as his wife, as Queen, might be pleased to allow him. If the Estates offered him the crown for life, he would accept it ; if not, he would return to his native country. It was only reasonable, he 6i8 The Stewart Period. [Ch. The Lords withdraw their opposition; and vote that William and Mary shall be declared King and Queen. The Commons suggest condi- tions. added, that the Lady Anne and her descendants should be preferred in the succession to any children whom he might have by any other wife than the Lady Mary. 1 After a pre-conference between the two Houses in which the questions between them were fully argued on both sides, the Lords at length gave way. They resolved not to insist on their amendment to the original vote of the Commons ; and proposed and carried, without a division, that the Prince and Princess of Orange should be declared King and Queen of England. It was still to be decided upon what conditions Wil- liam and Mary should be made King and Queen. A committee of the Commons appointed to consider what steps it might be advisable to take in order to secure law and liberty against the aggressions of future sove- reigns, reported (i) that the great principles of the con- stitution which had been violated by the dethroned king should be solemnly asserted, and (2) that a long and varied list of new laws which they enumerated should be enacted in restraint of the prerogative and for the purer administration of justice. It was proposed that the militia should be re-modelled ; that the duration of Parliaments should be limited, and the royal prerogative of prorogation and dissolution restricted ; that the royal pardon should not be pleadable to a Parliamentary im- peachment ; that toleration should be granted to Pro- testant dissenters ; that the crime of treason should be more precisely denned, and State trials be conducted in a manner more favourable to innocence ; that the judges should hold their offices for life ; that juries should be nominated in such a way as to exclude partiality and corruption ; with many other salutary reforms, a re- markable omission, however, being the absence of any provision in favour of the liberty of the press. In a debate on the report it was urged that legislation on so many and important subjects would delay the settlement Macaulay, Hist. ii. 382. xv.] Restoration to the Bill of Rights. 6T9 of the nation. The list of reforms was either too long if it referred only to what ought to be accomplished before the throne was filled ; too short, if intended to include all reforms which the legislature would do well to make in proper season. It was finally decided to Postponement postpone all reforms until after the settlement of the ° reorms - government on its ancient constitutional basis had been accomplished, but to set forth in the instrument by which the Prince and Princess of Orange were called to the throne, and the order of succession settled, a distinct and solemn assertion of the fundamental principles of the constitution and of the ancient franchises of the English nation, so that the right of the king to his crown and of the people to their liberties might rest upon one and the same title deed. The Declaration of Right was accord- Declaration of ingly drawn up. It contains : (1) a recital of all the lg " illegal and arbitrary acts committed by James II.; of his abdication, and of the consequent vacancy of the throne ; (2) an emphatic assertion, nearly following the words of the previous recital, that all such enumerated acts are illegal ; and (3) a resolution that the crown should be settled on William and Mary for their joint and separate lives, but with the administration of the government, during their joint lives, in William alone ; and after the decease of the survivor, on the descendants of Mary, then on Anne and her issue, and lastly on the issue of William. On the 13th of February, 1688-9, a tender of Tender and " j ' . , acceptance of the crown, on the conditions set forth in the Decla- the crown, ration, was made by the Marquis of Halifax in the name of all the Estates of the realm. 1 'We thankfully accept,' 1 The Scottish Estates, which met a month later, passed resolutions, framed as far as possible, in conformity with those recently passed at Westminster. There was, however, one important deviation from the original The English Convention, by voting a constructive abdication of the throne had, while actually deposing a bad king, endeavoured to evade the question whether subjects may lawfully perform such an act. The Scottish Convention did not shrink from using the bolder word 'forfeited. Thev resolved ' That James VII., being a professed Papist, did assume the royal power and acted as king, without ever taking the oath required by 6 2D The Stewart Period. [Ch replied William, speaking for himself and his wife, ' what you have offered us.' Salutary con- Thus was accomplished the ' Glorious Revolution ' of the U Revolution. 1 688, of all revolutions the least violent and the most beneficent. ' It finally decided,' says Macaulay, ' the great question whether the popular element which had, ever since the age of Fitzwalter and De Montfort, been found in the English polity, should be destroyed by the monarchical element, or should be suffered to develope itself freely, and to become dominant. The strife be- tween the two principles had been long, fierce, and doubtful. It had lasted through four reigns. It had produced seditions, impeachments, rebellions, battles, sieges, proscriptions, judicial massacres. Sometimes liberty, sometimes royalty, had seemed to be on the point of perishing. During many years one half of the energy of England had been employed in counteracting the other half. The executive power and the legislative power had so effectually impeded each other that the State had been of no account in Europe. The king-at- arms who proclaimed William and Mary before White- hall Gate, did in truth announce that this great struggle was over ; that there was entire union between the throne and the Parliament ; and that England, long dependent and degraded, was again a power of the first rank ; that the ancient laws by which the prerogative was bounded would thenceforth be held as sacred as the prerogative itself, and would be followed out to all their consequences ; that the executive administration would law, and had, by the advice of evil and wicked counsellors, invaded the fundamental constitution of the kingdom, and altered it from a legal limited monarchy to an abitrary despotic power, and hath exerted the same to the subversion of the Protestant religion and the violation of the laws and liberties of the kingdom, whereby he haXh. forfaulted [forfeited] his right to the crown, and the throne has become vacant. ' They also voted Papists incapable of wearing the crown, abolished episcopacy, made a claim of rights, and bestowed the crown on William and Mary, to descend afterwards in conformity with the limitations already marked out by the English Convention. — Macaulay, Hist. iii. 30; Hallam, Const. Hist. iii. 332. xv.]. Restoration to the Bill of Rights. 621 be conducted in conformity with the sense of the repre- sentatives of the nation ; and that no reform, which the two Houses should, after mature deliberation, propose, would be obstinately withstood by the sovereign. The Declara- tion of Right, though it made nothing law which had not been law before, contained the germ of every good law which has been passed during more than a century and a half, of every good law which may hereafter, in the course of ages, be found necessary to promote the public weal, and to satisfy the demands of public opinion.' 1 In the second session of the Convention' Parliament The Bill of which re-assembled in October, 1689, the Declaration of 1§1S ' Right was embodied and confirmed, with some slight but important amendments, in a regular Act of the legis- lature. The text of the Bill of Rights, the third great charter of English liberty and the coping-stone of the constitutional building, is as follows : — BILL OF RIGHTS. 1 Will, and Mar., Sess. 2. c. 2. (a.d. 1689.) An Act for Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown. Whereas the Lords Spiritual and Temporal, and Commons, Recitals. assembled at Westminster, lawfully, fully, and freely repre- senting all the Estates of the people of this realm, did, Presentation of upon the thirteenth day of February, in the year of our Declaration of Lord One thousand six hundred and eighty-eight, present ™S m > unto their Majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain Declaration in writing, made by the said Lords and ** contents: Commons, in the words following viz:— Whereas the late King James II. by the advice of divers Illegal and evil counsellors, judges, and ministers employed by him, did arbitrary acts 1 Macaulay, Hist. ii. 396. 622 The Stewart Period. [Ch. committed by the late King James II. Abdication and consequent vacancy of the throne. Summons oj the Convention Parliament. endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom : — i. By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament. 2. By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the same assumed power. 3. By issuing and causing to be executed a commission under the Great Seal for erecting a court, called the Court of Commissioners for Ecclesiastical Causes. 4. By levying money for and . to the use of the Crown, by pretence of prerogative, for other time, and in other manner than the same was granted by Parliament. 5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law. 6. By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law. 7. By violating the freedom of election of members to serve in Parliament. 8. By prosecutions in the Court of King's Bench, for matters and causes cognizable only in Parliament; and by divers other arbitrary and illegal courses. 9. And whereas of late years, partial, corrupt, and unquali- fied persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason, which were not freeholders. 10. And excessive bail hath been required of persons com- mitted in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. 11. And excessive fines have been imposed; and illegal and cruel punishments inflicted. 12. And several grants and promises made of fines and for- feitures, before any conviction or judgment against the persons upon whom the same were to be levied. All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm. And whereas the said late King James II. having abdicated the government, and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from Popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other xv.] Restoration to the Bill of Rights. 623 letters to the several counties, cities, universities, boroughs, and Cinque Ports, for the choosing of such persons as represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year One thousand six hundred eighty and eight, in order to such an establishment, as that their religion, laws and liberties might not again be in danger of being subverted ; upon which letters elections have been accordingly made. And thereupon the said Lords Spiritual and Temporal, and Declaration Commons, pursuant to their respective letters and elections, that the acts being now assembled in a full and free representation of this previously nation, taking into their most serious consideration the best ^"^f^^f means for attaining the ends aforesaid, do in the first place (as " '"'''"" their ancestors in like case have usually done) for the vin- dicating and asserting their ancient rights and liberties, declare : — 1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Par- liament is illegal. 2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal. 1 3. That the commission for erecting the late Court of Com- missioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious. 4. That levying money for or to the use of the Crown, by pretence of prerogative, without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal. 5. That it is the right of the subject to petition the king, and all commitments and prosecutions for such petitioning are illegal. 2 6. That the raising or keeping a standing army withm the kingdom in time of peace, unless it be with consent of Parlia- ment, is against law. 3 7. That the subjects which are Protestants may have arms 1 Supra, p. 289. In drawing up the Declaration of Right the Lords were unwilling absolutely to condemn the dispensing power, and therefore in- serted the qualifying words, ' as it hath been assumed and exercised of late ; ' the effect of which is to reserve to the Crown the prerogative of pardoning criminals or commuting their sentences. By sec. xii. of the Bill of Rights (infra p 628.) the dispensing power was absolutely abolished, except in such cases as should be specially provided for by a bill to be passed during the then present session. No such bill was, however, passed. 3 On the right of petitioning see' supra, p. 583. The Act 13 Car. II. c 5 against tumultuous petitioning was not affected by this clause of the Bill' of Rights. 3 Supra, p. 607. 624 The Stewart Period. [Ch. for their defence suitable to their conditions, and as allowed by law. 1 8. That elections of members of Parliament ought to be free. 9. That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. 10. That excessive bail ought not to be required, nor excessive fines imposed ; nor cruel and unusual punishment inflicted. 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders, 12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. 13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, Parlia- ment ought to be held frequently. And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties ; and that no declarations, judgments, doings or proceedings, to the pre- judice of the people in any of the said premises, ought in anywise to be drawn hereafter into consequence or example. To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and liberties : Bestowal of the H- The said Lords Spiritual and Temporal, and Commons, Crown on assembled at Westminster, do resolve, that William and Mary, William and Prince and Princess of Orange, be, and be declared, King and 1 This declaration (says Blackstone) of the right of the subject to carry arms proper for his defence ' is a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanction of society and laws are found insufficient to restrain the violence of oppression.' There is an ancient enactment, however (2 Edw. III. c. 3), against going armed under such circumstances as may 'tend to terrify the people,' or indicate an intention of disturbing the public peace ; and by a modern statute (60 Geo. III. t. I ) the training of persons, without lawful authority, to the use of arms*, is prohibited ; and any justice of the peace is authorized to disperse such assemblies of persons as he may find engaged in that occu- pation, and to arrest any of the persons present. — Stephen, Commentaries, i. 1 54, and (as to the authority under which the Volunteer Rifle Corps are trained) ii. 610 (5th ed.). xv.] Restoration to the Bill of Rights. 625 Queen of England, France and Ireland, and the dominions Mary, aecord- thereunto belonging, to hold the Crown and royal dignity of the in & t0 Citations said kingdoms and dominions to them the said Prince and Prin- menhoned - cess during their lives, and the life of the survivor of them ; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said king- doms and dominions, to be to the heirs of the body of the said Princess ; and for default of such issue to the Princess Anne of Denmark, and the heirs of her body ; and for default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal, and Commons, do pray the said Prince- and Princess to accept the same accordingly. III. And that the oaths hereafter mentioned be taken by all New oaths in persons of whom the oaths of allegiance and supremacy might lieu °fthe »M be required by law, instead of them ; and that the said oaths oa f hs °f al { e - of allegiance and supremacy be abrogated. ^prcnmcy. I, A.B., do sincerely promise and swear, That I will be faith- ful and bear true allegiance to their Majesties King William and Queen Mary : So help me God. I, A.B., do swear, That I do from my heart abhor, detest, and abjure as impious and heretical, that damnable doctrine and position, that Princes excommunicated or deprived by the Pope, or any authority of the See of Rome, may be deposed . or murdered by their subjects, or any other whatsoever. And I do declare, That no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority ecclesiastical or spiritual, within this realm : So help me God. IV. Upon which their said Majesties did accept the Crown Acceptance of and royal dignity of the kingdoms of England, France, and the Crown by Ireland, and the dominions thereunto belonging, according to *™£" m and the resolution and desire of the said Lords and Commons con- tained in the said declaration. V. And thereupon their Majesties were pleased, that the said Agreement Lords Spiritual and Temporal, and Commons, being the two between their Houses of Parliament, should continue to sit, and with their Majesties and : , . , < 1 tr i i • • r u. the Convention Majesties' royal concurrence make effectual provision for the that the latter ^ settlement of the religion, laws, and liberties of this kingdom, being the two' so that the same for the future might not be in danger again of Houses of Par- being subverted; to which the said Lords Spiritual and ^ t "'f n J' f m -f Temporal, and Commons, did agree and proceed to act con "*" e ° a ' accordingly. 626 The Stewart Period. [Ch. Formal ratifica- tion and con- firmation of Declaration of Right. Recognition and declaration of their Majesties' title as King and Queen of France and Ireland, and the dominions thereunto belonging. Settlement of the Crown and limitations of the succession. VI. Now in pursuance of the premises, the said Lords Spiritual and Temporal, and Commons, in Parliament as- sembled, for the ratifying, confirming, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of Parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration ; and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come. VII. And the said Lords Spiritual and Temporal, and Commons, seriously considering how it hath pleased Almighty God, in his marvellous providence, and merciful goodness to this nation, to provide and preserve their said Majesties' royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto Him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly, and in the sincerity of their hearts, think, and do hereby recognize, acknowledge, and declare, that King James II. having abdicated the government, and their Majesties having accepted the Crown and royal dignity aforesaid, their said Majesties did become, were, are, and of right ought to be, by the laws of this realm, our sovereign liege Lord and Lady, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, in and to whose princely persons the royal State, Crown, and dignity of the same realms, with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and apper- taining, are most fully, rightfully, and entirely invested and incorporated, united, and annexed. VIII. And for preventing all questions and divisions in this realm, by reason of any pretended titles to the Crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquillity, and safety of this nation doth, under God, wholly consist and depend, the said Lords Spiritual and Temporal, and Commons, do beseech their Majesties that it may be enacted, established, and declared, that the Crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties, and the survivor of them, during their lives, and the life of the survivor of them. And that the entire, perfect, and xv.] Restoration to the Bill of Rights. 627 full exercise of the regal power and government be only in, and executed by, his Majesty, in the names of both their Majesties during their joint lives ; and after their deceases the said Crown and premises shall be and remain to the heirs of the body of her Majesty; and for default of such issue, to her Royal High- ness the Princess Anne of Denmark, and the heirs of her body ; and for default of such issue, to the heirs of the body of his said Majesty : and thereunto the said Lords Spiritual and Temporal, and Commons, do, in the name of all the people aforesaid, most humbly and faithfully submit themselves, their heirs and posterities, for ever : and do faithfully promise, That they will stand to, maintain, and defend their said Majesties, and also the limitation and succession of the Crown herein specified and contained, to the utmost of their powers, with their lives and estates, against all persons whatsoever that shall attempt anything to the contrary. IX. And whereas it hath been found by experience, that it Exclusion from is inconsistent with the safety and welfare of this Protestant the succession kingdom, to be governed by a Popish prince, or by any king or °fr^f lstsand queen marrying a Papist, the said Lords Spiritual and Temporal, marrying and Commons, do further pray that it may be enacted, That all Papists. ' and every person and persons that is, are, or shall be reconciled to, or shall hold communion with, the See or Church of Rome, or shall profess the Popish religion, or shall marry a Papist, shall be excluded, and be for ever incapable to inherit, possess, or enjoy the Crown and government of this realm, and Ireland, and the dominions thereunto belonging, or any part of the same, or to have, use, or exercise any regal power, authority, or jurisdiction within the same ; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance, and the said Crown and govern- ment shall from time to time descend to, and be enjoyed by, such person or persons, being Protestants, as should have in- herited and enjoyed the same, in case the said person or persons so reconciled, holding communion, or professing or marrying as aforesaid, were naturally dead. 1 X. And that every king and queen of this realm, who at Declaration to any time hereafter shall come to and succeed in the Imperial oe OTfl * h Crown of this kingdom, shall, on the first day of the meeting e ^ n k ^f e Z er of the first Parliament, next after his or her coming to the SU c™ e dingto' Crown, sitting in his or her throne in the House of Peers, in the crown. the presence of the Lords and Commons therein assembled, or at his or her coronation, before such person or persons who 1 This provision, although not included in the Declaration of Right, was in accordance with the previous resolution of the Convention, that it was contrary to the interests of the kingdom to be governed by a Papist. 628 From the Restoration to Bill of Rights. [Ch. xv. Enacting clause. Dispensing bower ibolished. Exception in r avour of harters, grants, md pardons nade before !3 Oct., 1689. shall administer the coronation oath to him or her, at the time of his or her taking the said oath (which shall first happen), make, subscribe, and audibly repeat the declaration mentioned in the statute made in the thirtieth year of the reign of King Charles II. intituled 'An Act for the more effectual preserving the King's person and government, by disabling Papists from sitting in either House of Parliament.' But if it shall happen, that such king or queen, upon his or her succession to the Crown of this realm, shall be under the age of twelve years, then every such king or queen shall make, subscribe, and audibly repeat the said declaration at his or her coronation, or the first day of meeting of the first Parliament as aforesaid, which shall first happen after such king or queen shall have attained the said age of twelve years. 1 XI. All which their Majesties are contented and pleased shall be declared, enacted, and established by authority of this present Parliament, and shall stand, remain, and be the law of this realm for ever ; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in Parliament assembled, and by the authority of the same, declared, enacted, and established accordingly. XII. And be it further declared and enacted by the authority aforesaid, That from and after this present session of Parliament, no dispensation by non obstante of or to any statute, or any part thereof, shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of Parliament. 2 XIII. Provided that no charter, or grant, or pardon granted before the three-and-twentieth day of October, in the year of our Lord one thousand six hundred eighty nine, shall be any ways impeached or invalidated by this Act, but that the same shall be and remain of the same force and effect in law, and no other, than as if this Act had never been made. (Statutes of the Realm, yi. 142.) 1 This clause supplements the preceding by enacting that every English sovereign shall, as a test of non-popery, repeat and subscribe, in full Par- liament or at the coronation, the Declaration against Transubstantiation, Adoration of the Virgin, and the Sacrifice of the Mass, contained in the Parliamentary Test Act of the 30th Car. IT. st. 2, c. 1.— See supra, p. 597. 2 Supra, p. 623. CHAPTER XVI. PROGRESS OF THE CONSTITUTION SINCE THE REVOLUTION. The Revolution of 1688 marks at once a resting place The legal code and a fresh point of departure in the history of the °l t ^_ constl " English Constitution. The Bill of Rights was the summing up, as it were, and final establishment of the legal bases of the Constitution. With Magna Charta and the Petition of Right it forms the legal constitutional code, to which no additions of equal importance (except the provisions of the Act of Settlement to be presently noticed) have since been made by legislative enactment. Political progress has indeed, from time to time, left its mark on the statute-book, in laws the importance of which can hardly be exaggerated. But even.the greatest of these enactments — the Reform Act of 1832, sup- plemented by the Act of 1867 — have been of the nature of amendments to the machinery of the Constitution, supplying defects and correcting abuses, rather than alterations in the great constitutional principles finally established by the Revolution. As might be expected in a living organism, "the^Gi'owth of the 7 . 1 L i- 1 • TflHwritten or Constitution has not remained stationary during a customary period of nearly two centuries. But its greatest changes constitution. have been brought about not by legislative enact- ment. Whilst the legal code has remained substan- tially unaltered, there has grown up by its side a purely unwritten and conventional code, 1 -which, firmly 1 See Freeman, Growth of Eng. Const., p. 112. S 3 o Progress of the Constitution [Ch. Act' of Settle- ment, A.D. 1700. Its constitu- tional pro- visions. established as a part of the Constitution though still unknown to the law, has so completely modified the practical working of the legal code as to form a present constitution which would be scarely recognizable, except in its fundamental principles, by the authors of the Bill of Rights. The doctrines of Divine hereditary right, of absolute royal power, of the passive obedience of the subject, were negatived once and for ever by the Revo- lution, and the rule of Parliament was definitively estab- lished; but the mode of exercising that rule has since become something wholly different to what it then was, and in its present form of Parliamentary government through a Cabinet ministry, forms the main characteristic of our constitutional system. The history of this remarkable development has now to be briefly considered, but before doing so the consti- tutional clauses of the Act of Settlement, which were to take effect from the accession of the House of Hanover, claim attention. It is provided : — 1. That whosoever shall hereafter come to the pos- session of this Crown, shall join in communion with the Church of England as by law established. 2. That in case the Crown and imperial dignity of this realm shall hereafter come to any person, not being a native of this kingdom of England, this nation be not obliged to engage in any war for defence of any dominions or territories which do not belong to the Crown of England, without the consent of Parliament. 3. [That no person who shall hereafter come to the possession of this Crown shall go out of the dominions of England, Scotland, or Ireland, without consent of Parliament.] 1 4. [That from and after the time that the further limi- tation by this Act shall take effect, all matters and things relating to the well-governing of this kingdom, which 1 This clause was repealed by 1 Geo. I. c. 51. XVL 3 since the Revolution. 6 3I are properly cognizable in the Privy Council by the laws and customs of this realm, shall be transacted there, and all resolutions taken thereupon shall be signed by such of the Privy Council as shall advise and consent to the same.] 1 5. That after the limitation shall take effect as afore- said, no person born out of the dominions of England, Scotland, or Ireland, or the dominions thereunto belong- ing (although he be naturalized or made a denizen), ex- cept such as are borri of English parents, shall be capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands or tenements or hereditaments from the Crown to himself, or to any others in trust for hirnJ , 2 J Repealed by 4 Anne, c. 8, s. 24. 2 This clause (founded, like the 2nd and, 3rd, on a very reasonable Aliens jealousy of a foreign king and foreign favourites) was confirmed by statute I Geo. I. st. 2, c. 4, which, ' for the better preserving the said clause in the said Act entire and inviolate,' provided that no Bill for the naturalization of any person should be received without a clause disqualify- ing him from sitting in Parliament or enjoying the prohibited offices or places of trust. Jealousy of aliens was at this time specially strong in consequence of the conduct of Will. III. in appointing foreigners who accompanied him from Holland to high positions in the English State, but Th ' ■ d' I V the feeling had always existed more or less. By the common law aliens were f,"! lm 1 1 ~ incapacitated from holding land or any public office, and even from exercising IJ ,^ common any civil rights. Magna Charta {supra, p. 131) granted certain privileges to foreign merchants, but all aliens dwelling in England long remained sub- Magha Charta. ject to higher taxation and to many vexatious restrictions, more particularly as to retail trade. By stat. 32 Hen. VIII. c. 16, they were further pro- ry ,, ,, jr hibited from taking any shop or dwelling-house on lease, and they were at t/-ttt ,r"' all times liable to be ordered by the Crown to quit the realm. The last ' c ' occasion on which this right of expulsion was exercised occurred in 1575 under Elizabeth. An alien might become, to a certain extent, an English subject, either by denization under the king's letters patent, or by naturali- Denization and zation by Act of Parliament, the latter mode not merely enabling him to naturalization. hold land, but to inherit it from others and to transmit it by inheritance to his children, whether born before or after his naturalization. By stat. 7 s ta t_ » y aCt j- Jac. I. c. 2, it was, however, enacted that no person should be naturalized c _ 2- unless he should first take the oaths of allegiance and supremacy in the presence of the Parliament and also take the sacrament. But as it was impossible to limit the action of future Parliaments, these provisions, as well as those of the 1 Geo. 1. st. 2, c. 4, for insuring the observance of the 5th S(at l Geo ^ clause of the Act of Settlement, were occasionally dispensed with by special s t ' t . Acts of Parliament passed previously to the introduction of bills for the ' ' ' ' ' naturalization of particular individuals. In 1708 one general Act was passed (7 Anne, c. 5) for the naturalization of all foreign Protestants, but 632 Progress of the Constitution [Ch. 6. [That no person who has an office or place of profit under the king, or receives a pension from the Crown, Right of asylum. Alien Act, 1793. Registration of aliens, 1836. Mr. Hurts Naturalization Act, 1844. Naturalization Act, 1870. this was repealed three years afterwards. In 1 753, the famous Jew Bill was passed (26 Geo. II. c. 26) enabling foreign Jews to be naturalized without taking the sacrament as required by the 7 Jac. I. c. 2 ; but the popular dislike excited by this measure was so great that it was repealed in the following session of Parliament. At length, in 1825, by 6 Geo. IV. t. 67, the preliminary sacramental test imposed by the 7 Jac. I. t. 2, was abolished in all cases ; and in 1844 the provision of 1 Geo. I. st. 2, c. 4, as to naturalization bills was also repealed by 7 & 8 Vict. u. 66, s. 2. While in the interest, or supposed interest, of the English people, aliens were subjected to certain disabilities and even to liability to expulsion when the safety of the State should require it, their right of asylum against foreign . governments was ever maintained inviolate. But in 1793 the suspicion that some of the political refugees who came over in great numbers at the time of the French Revolution were in league with democratic associations in England in conspiracies against the Government, led to the passing of an Alien Act (33 Geo. III. c. 4) placing all foreigners under strict surveillance, and empowering the Secretary of State to re- move any who were suspected out of the realm. The Alien Act, which was passed for one year only, was renewed from time to time, but its more stringent provisions were relaxed as soon as peace was tempora- rily restored in 1802. In that year the arrogant demand of Napoleon, First Consul of the French Republic, that we should 'remove out of the British dominions all the French princes and their adherents, toge- ther with the bishops and other individuals whose political principles and conduct must necessarily occasion great jealousy to the French Government, ' was firmly refused, except in the single instance of M. Georges, who, having been concerned in circulating papers hostile to the Government in France, was removed from our European dominions. On the resump- tion of the war the Alien Act was again renewed in its integrity ; after the peace of 1814, its provisions were again relaxed ; and from 1816 its re- enactment, even in a modified form, was strongly opposed in Parliament, until its final abandonment in. 1826. The registration of aliens was still, however, insisted on, and fresh provisions for this purpose were enacted in 1836 by the 6 & 7 Will. IV. c. II ; but their execution has gradually fallen into disuse. During the political disturbances of 1848 the English Executive were empowered by Parliament (n & 12 Vict. c. 20), for the space of one year, to remove from the kingdom any foreigners who should be considered dangerous to its peace, but this power was never exercised. In the meantime, in 1844, the naturalization of aliens had been greatly facilitated by Mr. Hutt's Act, 7 & 8 Vict. c. 66, which enabled them, on obtaining a certificate from the Home Secretary and taking the oath of allegi- ance, to acquire all the rights and capacities of natural-born British subjects, except the capacity of becoming a member of either House of Parliament, or of the Privy Council, or any other rights and capacities specially excepted in the certificate. This Act has since been repealed by the Naturalization Act of 1870 (33 & 34 Vict. c. 14, amended by 35 & 36 Vict. c. 39), which has completely altered the status of aliens and naturalized subjects, upsetting the ancient maxim, " nemo patriam in aud natus est exuere, aut Ugeantiae debitum ejurare, potest," and rendering much of the learning as to allegiance and aliens contained in the famous Calvin's case (supra, p. 471), and in subsequent cases, now only historically interesting. Under the existing law an alien may take, acquire, hold, and dispose of real and personal pro- perty in the United Kingdom, of every description (except British ships) in the same manner in all respects as a natural-born British subject, but xvi.] since the Revolution. 633 shall be capable of serving as a member of the House of Commons.] l 7. That after the limitations shall take effect as aforesaid, judges' commissions be made quamdiu se bene gesserint and their salaries ascertained and established ; but upon the address of both Houses of Parliament, it may be lawful to remove them. 3 8. That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament. 3 The Act of Settlement, — characterized by Hallam as ' the seal of our constitutional laws, the complement of the Revolution itself and the Bill of Rights, and the last great statute which restrains the power of the Crown,' 4 — concludes with a general confirmation of the rights and liberties of the people : — ' And whereas the laws of England are the birthright of the people thereof, and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws, and all their officers and ministers ought to serve them respectively according to the same ; the said Lords Spiritual and Temporal, and Commons, do therefore further humbly pray, That all the laws and statutes of this realm for securing the established religion, and the rights and liberties of the people thereof, and all other without the right to any office or franchise, municipal, parliamentary, or other ; and on obtaining a certificate of naturalization from one of Her Majesty's Principal Secretaries of State, he becomes entitled, in the United Kingdom, to all political and other rights and privileges, and subject to all the obligations of a natural -born subject. It is also provided that a natural- born subject may become a "statutory alien" by being voluntarily natu- ralized in a Foreign State, and may again acquire British nationality by permission of a Secretary of State. 1 Repealed by 4 Anne, c. 8, s. 25, and other provisions enacted in lieu thereof by 6 Anne, c. 7. 2 This important provision, which established the independence of the judicial bench, and the 8th clause enacting that the royal pardon should not be pleadable to an impeachment, had been omitted in the hasty and im- perfect Bill of Rights. Supra, pp. 618, 619. 3 See supra, p. 498. * Hallam, Const. Hist. iii. 198. 634 Progress of the Constitution [Ch. Growth of the Cabinet. The Concilium Ordinarium. laws and statutes of the same now in force, may be ratified and confirmed, and the same are by his Majesty, by and with the advice and consent of the said Lords Spiritual and Temporal, and Commons, and by authority of the same, ratified and confirmed accordingly.' 1 The 4th and 6th of these remedial clauses of the Act of Settlement, although repealed in Queen Anne's reign before they could come into operation, call for some de- tailed comment, and lead us to a consideration of the growth of Cabinet government. The fourth clause was intended to put a stop to a very remarkable change which had been silently effected in the executive func- tions of the king's Ordinary or Privy Council : the sixth would have entirely severed the connexion between the House of Commons and the Executive. Of the Concilium Ordinarium something has already been said in an earlier chapter of this work. 2 Consisting of the chief officers of the court, of the two archbishops, and of certain leading members of the baronage selected by the king, the Ordinary or Continual council was originally a kind of permanent committee of the ' Great Council ' or ' Common Council ' of the realm, sitting for the despatch of executive business during the intervals between the meetings of the larger assembly, but becom- ing merged in that assembly whenever it was convened. Gradually, however, the nature both of the Common Council and of the Ordinary Council underwent a change. As with the rise of the House of Commons the ' Common Council ' developed into the National Parlia- ment, the Ordinary Council tended more and more to become a strictly official body, distinct from the larger assembly out of which it had grown ; its members ceased to be appointed exclusively from the ranks of the baronage, clerical or lay, and commoners (not neces- 1 12 & 13 Will. III. c. 2. : Supra, pp. 166, 174, 175. xvi.] since the Revolution. 635 sarily members of the House of Commons) were admitted to the council board. In 1404, under Henry IV., the council consisted of 19 members, of whom 3 were bishops, 9 peers, and 7 commoners. They were bound by a special oath of fidelity and secrecy, and received regular salaries of large amounts. But the council still remained a checking as well as a ministerial body. It was at once the controller and the servant of the Crown ; the instrument of the king's prerogative, and the curb placed by the baronage on the arbitrary exercise of his will. The number of councillors soon however appears to have proved too large for effective administration, and about the time of Henry VI. the more eminent and assiduous members were formed into a select or con- The Privy fidential committee, exercising alone all the administra- tive functions previously shared with the other members of the Ordinary Council, and distinguished from these latter by the title of Privy Councillors. The oath of secrecy was now only exacted from the Privy Coun- cillors, the ordinary councillors being no longer consulted on purely executive business, although they continued to take part in the judicial duties of the Council in its court of Star Chamber. Under Edward VI., in 1553, the Ordinary Council consisted of 40 members (22 being commoners), and was divided for judicial and administrative purposes, into S commissions or committees. The most important of these, composed of eleven noblemen, two bishops, and seven commoners (one half of the whole number of councillors) was styled the Committee ' for the State ' and constituted, in fact, the Privy Council. The large num- ber of commoners, both in the whole Council and in the Committee ' for the State ' marks the change which had silently been effected in the relations between the Council and the Crown. The independence of the Council had rested on the presence of men who could not easily be removed, great hereditary officials and powerful nobles. 636 Progress of the Constitution [Ch, Under the Tudors the large infusion of commoners changed the nature of the Council from a mixed check- ing and administrative, into a purely official body, exercising the whole executive power of the Crown, and, through the medium of the Star Chamber and of proclamations, a very large part of the judicial and the legislative power also. On the abolition of the Star Chamber the judicial functions of the Council fell into abeyance, and the reason for the distinction between ordinary and Privy Councillors having then ceased to exist, all the members of the Council, from the date of the Restoration, were sworn as Privy Councillors. Cabinet Council. The Privy Council continued to be the constitutional body of advisers of the king, whom he was bound by the laws and customs of the realm to consult. But Charles II. hated the delays and restraints imposed upon his designs by long debates in Council, and having greatly augmented its numbers was able to allege with truth that 'the great number of the Council made it unfit for the secrecy and despatch which are necessary in great affairs.' Availing himself of one of the peculiar charac- teristics of the Council — its action through committees — Charles formed a small select committee or Cabinet Council 1 with whom he concerted all measures of importance before submitting them, for a merely formal ratification, to the whole body of Privy Councillors. ' Formerly,' says Trenchard, writing towards the close of the 17th century, 'all matters of state and discretion were debated and resolved in the Privy Council, where every man subscribed his opinion and was answerable for it. The late King Charles [II.] was the first who 1 ' The name of a Cabinet Council,' says Hallam, • as distinguished from a larger body, may be found as far back as the reign of Charles I.' (Const. Hist. iii. 184) ; but it occurs in the preceding reign in the writings of Lord Bacon, who, in his essay on the 'Inconveniences of Counsel,' says 'for which inconveniences, the doctrine of Italy and practice of France, in some kings' times,, hath introduced cabinet counsels : a remedy worse than the disease.' Bacon, Works (ed. Spedding, Ellis & Heath, 1858), vi. 424. xvi.] since the Revolution. 637 broke this most excellent part of our constitution, by- settling a Cabal or Cabinet Council, where all matters of consequence were debated and resolved, and then brought to the Privy Council to be confirmed.' l The word ' cabal,' with the meaning of ' club ' or ' association of intriguers ' had been popularly applied to the secret councillors of the king even under James I., and the accidental coincidence that, in 1671,'the Cabinet con- sisted of the five unprincipled ministers, Clifford, Arling- The . ' Cabal ' ton, Buckingham, Ashley, and Lauderdale, the initials of whose names made up the word Cabal, caused the latter designation to be used for some years as synonymous with Cabinet, and did much to bring the cabinet system of government into disrepute. Moreover, though convenient and even necessary for administrative purposes, Cabinet government, in the form which it assumed at this period, was undoubtedly fraught with great evils. It deprived the Privy Council of all power to check the actions of the king, and vested the real government of the country in a body of ministers practically irrespon- sible to the nation. Accordingly, in 1679, an attempt Temple's , .... S. ,.,..,. ™ , scheme for was made, on the advice 01 Sir William lemple, to reorganization restore the Privy Council to its former position. It was ° f '^^ ""L remodelled and its numbers reduced from 50 to 30, of whom 1 5 were the chief officers of state, and the other 15 were made up of 10 lords and 5 commoners. The joint income of the new council was not to fall below £ 300,000, a sum nearly equal to the estimated income of the whole House of Commons. Temple hoped that a body thus constituted of great nobles and wealthy landed proprietors, too numerous for a Cabal and yet not too numerous for secret deliberation, would form at once a check upon the Crown and a counterbalance to the influence of Parliament. By the advice of this Council 1 Trenchard, Short History of Standing Armies (published about 1698)/ p. 9. 6 3 8 Progress of the Constitution [Ch. The Cabinet system resumed. Change in its essential characteristics. of Thirty, Charles II. pledged himself to be guided in all affairs of State ; but the pledge was quickly broken, and an interior or Cabinet Council was again formed which differed from the whole body of the Privy Council, as, under Edward VI., the Committee ' for the State,' and under Henry VI., the Privy Council itself had differed from the Ordinary Council. 1 This distinction of the Cabinet from the Privy Council has ever since continued. The Privy Council still remains the only legally recognized body, but the Cabinet though altogether unknown to the law, and for a long time regarded as unconstitutional and dangerous, has gradually drawn to itself the chief executive power, and become, by universal consent and usage, the essen- tial feature of our system of Parliamentary government. The firm establishment of the Cabinet system has, how- ever, only been rendered possible and advantageous by a gradual, but long since completed, change in its essential characteristics. Under the two last Stewarts the Cabinet was, in truth, a cabal of the king's servants for sustaining the authority of the Crown, not only against its legally authorized Privy Councillors, but against the wishes and power of Parliament. Since the Revolution it has become a ministry, 3 nominally appointed by the sovereign, but in reality an executive committee of the 1 An excellent sketch of the history of the Privy Council will be found in Mr. A. V. Dicey's Arnold Prize Essay, Oxford, i860, to which I am indebted for several of the details in the text. 2 In 171 1 the Earl of Scarsdale, in the House of Lords, having proposed a resolution in which the responsible advisers of the Crown were referred to as the ' Cabinet Council,' it was suggested that the word ' Ministers ' should be substituted as being better known. This alteration the mover ultimately agreed to ; but while the point was under discussion some peers maintained that ' Ministers ' and ' Cabinet Council ' were synonymous, others that there might be a difference, Lord Cowper that they were both terms of an uncertain signification, and the latter unknown to our law, while Lord Peterborough observed that ' he had heard a distinction between the Cabinet Council and the Privy Council ; that the Privy Council were thought to know everything, and knew nothing, and those of the Cabinet Council thought nobody knew anything but themselves.' Pari. Hist. vi. 971, cited by Hallam, Const. Hist. iii. 185. xvi.] since the Revolution. 639 two Houses of Parliament, practically chosen by the Party govem- majority of the House of Commons. This result is mainly due to the division of the English people, and consequently of the Parliament, into two great political parties which have contended one against the other for the control of the executive power. It was not, however, until the accession of George I. that govern- ment by party was fully established. Down to the year 1693, William III. distributed the chief offices in the Government about equally between the two parties, a policy which not only failed to secure una- nimity, but even allowed of open hostility between the various ministers of the Crown, as well in the dis- charge of their executive duties as in the discussions in Parliament. The inconvenience of this state of things was so great that at length, between 1693 and 1696, William III., acting on the advice of Robert, Earl of Sunderland, abandoned the neutral position which he had hitherto maintained between the two parties, and entrusted all the chief administrative offices to the Whigs, who commanded a majority in the House of Commons. The close union of the Whig leaders, each promptly defending his colleagues against every attack, was so novel a spectacle that they became popularly known as 'the Junto.' But the ministerial system of The 'Junto.' government in its modern form was by no means as yet completely established. When, at the general election of 1698, a House of Commons was returned adverse to the Junto, and Montague, who, as First Lord of the Treasury, had for four years occupied the position and wielded the power of leader of the House, ceased to exercise any control over it, the ministry, instead of resigning office to their adversaries, as statesmen simi- larly situated would now act, kept their places: Thus the old want of harmony between the servants of the Crown and the representatives of the people returned in full force, and continued, with some short intervals of 640 Progress of the Constitution [Ch. Attempted revival of ancientauthcrity of Privy Coun- cil by Act of Settlement. Final establish- ment of the Cabinet system under the first two Georges. composedness, until the general election of 1705 again sent up a Whig majority to Parliament. 1 It was during this interval of disunion between the Cabinet and the majority in Parliament, and while the possibility of still greater divergence, on the accession of a foreign dynasty, was present in men's minds, that an attempt was made at once to check the personal action of the king and to secure the responsibility of his ministers by providing, in the 4th clause of the Act of Settlement, that after the accession of the House of Hanover, all matters relating to the government of the kingdom which were cognisable in the Privy Council, should be transacted there and authenticated by the signatures of such Privy Councillors as should advise and consent to the same. It was - , however, soon perceived that this revival of the ancient authority of the Privy Council was an anachronism, and the clause was repealed early in Queen Anne's reign before it could come into operation. It was under the first two kings of the House of Hanover, the accession of whose dynasty was to have marked the extinction of the Cabinet system, that Parlia- mentary government by means of a ministry — nominally the king's servants, but really an executive committee representing the will of the party majority for the time being in the House of Commons — was fully and finally established. This was due, in a great measure, to the personal character of George I. and George II., who, aliens in blood, in language, and in political sympathies, clung fondly to their beloved Hanover, and seemed to regard the kingship of Great Britain as an appendage, and rather an irksome appendage, to their small German Electorate. ' The troublesome energies, of Parliament,' observes Sir Erskine May, ' were an enigma to them ; and they Macaulay, Hist, Eng. ch. xx. XVI '] since the Revolution. 641 cheerfully acquiesced in the ascendency of able ministers who had suppressed and crushed pretenders to their crown — who had triumphed over parliamentary opposi- tion, and had borne all the burthen of the Government. Left to the indulgence of their own personal tastes — occupied by frequent visits to the land of their birth, by a German court, favourites and mistresses — they were not anxious to engage more than was necessary in the turbulent contests of a constitutional government. Having lent their name and authority to competent ministers, they acted upon their advice, and aided them by all the means at the disposal of the Court. ' x This Important indifference of the first two Georges to everything not indifference to affecting the interests of their Continental dominions English politics, had most important and beneficial effects. It allowed the English Constitution to develop freely under a kingship from which the element of personal royal power was for the time - practically eliminated. George III., who ' gloried^in the name of Briton ' without understanding in what it is that the glory of a Briton consists, strove hard throughout his reign to recover the ground lost under his two immediate predecessors ; but the system of ministerial government with collective responsibility to the House of Commons was too firmly established to be overthrown, and is now regarded, though still un- recognized in the written Constitution, as a part of our polity almost as essential- as the Parliament itself. Under this system, ' the Ministry,' says Lord Macaulay, Macaulay's ' is, in fact, a committee of leading members of the fhemmisterial two Houses. It is nominated by the Crown ; but it system, consists exclusively of statesmen whose opinions on the passing questions of the time agree in the main with the opinions of the majority of the House of Commons. Among the members of this committee are distributed the great departments of the administration. Each May, Const. Hist. i. 7. TT 642 Progress of the Constitution [Ch. Increased security of the Crown and of ministers under the Cabinet system. Minister conducts the ordinary business of his own office without reference to his colleagues. But the most im- portant business of every office, and especially such business as is likely to be the subject of discussion in Parliament, is brought under the consideration of the whole Ministry. In Parliament the Ministers are bound to act as one man on all questions relating to the execu- tive government. If one of them dissents from the rest on a question too important to admit of compromise, it is his duty to retire. While the Ministers retain the confidence of the parliamentary majority, that majority supports them against opposition, and rejects every motion which reflects on them or is likely to embarrass them. If they forfeit that confidence, if the parliamentary majority is dissatisfied with the way in which patronage is distributed, with the way in which the prerogative of mercy is used, with the conduct of foreign affairs, with the conduct of a war, the remedy is simple. . . . they have merely to declare that they have ceased to trust the Ministry, and to ask for a Ministry which they can trust' l Not the least of the many advantages which have accrued from the establishment of this form of Parlia- mentary government has been the increased security of the Crown and of its ministers. The old constitutional maxim that ' the king can do no wrong ' is now literally true, for his acts are really the acts of his ministers ; and his ministers are responsible to the House of Commons not merely, as of old, for any breach of the law, but for the general course of their policy, which must accord with the opinions of the majority of that House, or else, in conformity with a constitutional usage practically as binding as a legal enactment, the ministers are bound to 1 Macaulay, Hist. Eng. ch. xx., Works (ed. 1866) iv. 44 ; and see Mr. Bagehot's 'English Constitution' for a spirited and able sketch of the conventional or unwritten constitution as contrasted both with the written or legal constitution and with the Presidential form of government in the United States of America. xvi.] since the Revolution. 643 resign office. Instead of a revolution or a Parliamentary impeachment, a change of ministry suffices to preserve harmony between the Crown and the people. The sixth clause of the Act of Settlement, by which Exclusion of all placemen and pensioners were excluded from Parlia- pendon^from ment, was directly aimed, not at the Cabinet system, but * e Hoiise of at the dangerous influence which the Crown had acquired through the profuse distribution of offices and pensions among the members of the legislature. This means o'f corrupting the representatives of the people had been extensively employed under the last two Stewarts ; and William III., amidst the difficulties with which he found himself surrounded, adopted and even extended this baneful expedient for controlling his Parliaments. To check this abuse the Commons, in 1693, passed a bill to prohibit all members thereafter elected from accepting any office under the Crown. Rejected by a small majority of the Lords, the bill was re-introduced in the following year and passed both Houses ; but William III. refused the royal assent. A few years later, however, the principle of disqualification received a legislative sanction by the express exclusion from the House of Commons of the newly-appointed Commissioners of Stamps and Excise. 1 The total exclusion of all servants of the Crown from the House of Commons, enacted by the Act of Settlement, was not only far too drastic a remedy for the special evil which it was intended to meet, but would also, if carried into practice, have brought the ministers of the Crown into hopeless conflict with the House of Commons, and, by preventing the fusion of the legislative and executive powers, have effectually stopped the development of the system of Parliamentary or Cabinetgovernment which we now enjoy. The clausewas, however, as we have seen, repealed before it could come 1 4 & S Will, and Mary, c. 21 (Stamps) ; II & 12 Will. III. c. 2, s. 50 (Excise). 644 Progress of the Constitution [Ch. into operation, in the fourth year of Queen Anne's reign j 1 and two years afterwards, by the ' Act for the Security of the Crown and Succession,' 2 more reasonable provisions were enacted for the prevention of corrupt influence. Every person holding an office created since the 25 th of October, 1705, or in receipt of a pension during the plea- sure of the Crown, was incapacitated from sitting in the House of Commons, and every member of that House accepting any of the previously existing offices under the Crown (except a higher commission in the army) was obliged to vacate his seat, though still eligible for re- election. 3 Before the system of ministerial government, with responsibility to the House of Commons, had been fully established, and while the House of Commons itself remained liable to corrupt influences, and, under a re- stricted franchise, failed to represent the people, a provi- sion which compelled the acceptance of office by a repre- sentative to be submitted to the approval of his constitu- ents, acted as a salutary check both upon the Crown and the leading members of the Commons. But now, with a reformed suffrage, and under a customary or unwritten constitution in which one of the principal functions of the members of the Commons is, by an indirect process, to choose the ministers of the Crown, the reasons for the enactment have ceased to exist. Although, however, several attempts have been made to modify the principle, they have been always unsuccessful, with the single exception contained in the Reform Act of 1867, dis- pensing with the requirement of 6 Anne, c. 7, in the case of the removal of a minister from one office under the Crown to another. 4 BM' 0^1742 The exce P tion from the Act of 6 Anne, c. 7, of all offices existing on the 25th October, 1705, enabled the Crown still to exercise extensive corruption by means of 1 4 Anne, c. 8, s. 25. 2 6 Anne, a 7. 3 6 Anne, c. 7. To check the increase of placemen, certain restrictions were also imposed on the multiplication of commissioners. 4 30 & 31 Vict. c. 102, s. 52. XVI -] since the Revolution. 645 places ; and in 1741 no less than two hundred appoint- ments were held-by members of the House of Commons. In the following year, however, the Place Bill, 1 which had been thrice rejected by the Commons and twice by the Lords, passed into an Act, excluding from the House a large number of officials, chiefly clerks and other subordinate officers of the public departments. In 1782 several other offices which had been generally LordRocking- held by members of Parliament were suppressed by LUt'lct^iW Lord Rockingham's Civil List Act ; a and the policy of official disfranchisement has been since almost invariably followed whenever new officers have been appointed by Acts of Parliament. The incapacity imposed by the Act 6 Anne, c. 7, upon pensioners of the Crown, though extended at the com- mencement of the next reign to pensioners for terms of years, 3 was eluded by the grant of secret pensions out of the large sum annually voted to the Crown as ' secret service money,' and expended without any account ; but by Lord Rockingham's Act already referred to, the power of granting pensions out of the king's Civil List was considerably limited, and secret pensions were abolished by a provision that in future all pensions should be paid at the public Exchequer. In the same year a stop was put to another form of Parliamentary corruption by an Act disqualifying contractors for the public service from sitting in the House.* The common law judges had always been disqualified Exclusion of from sitting in the House of Commons ; and this exclu.- h iS of Com. sion was extended to the Scotch judges under George II., mons - and to the Irish judges under George IV. The same rule 1 is Geo. II. c. 22. 2 22 Geo. III. c. 82. 3 I Geo. I. c. 56. * 22 Geo. III. c. 45. On Places and Pensions in the House of Com- mons see May, Const. Hist. i. pp. 369—375- I n the first Parliament of George I. there were 271 members holding offices, pensions, and sinecures. In the first Parliament of George II., 257; in the first Parliament of George IV. but 80, exclusive of officers in the Army and Navy ; and in 1833 there were only 60 members holding civil offices and pensions, and 83 holding naval and military commissions. Id, p. 374. 646 I, Kingship since the Revolution. Legal preroga- tives of the Crown. Progress of the Constitution [Ch. was applied in 1840 to the judge of the Court of Admi- ralty ; and the holders of all newly-created judicial posts have been disqualified by the Acts under which they were constituted. The Master of the Rolls— hitherto the sole judge who has retained the capacity of sitting in the Commons— has been also at length disqualified by the clause of the Supreme Court of Judicature Act, 1873, which declares that no judge of the High Court of Justice or of the Court of Appeal shall be capable of being elected to or of sitting in that House. 1 Having discussed the Act of Settlement and the growth of the Cabinet system, the further progress of the Con- stitution may be conveniently considered under the five following heads: (1) the Kingship, (2) the House of Lords, (3) the House of Commons, (4) Religious Liberty, and (5) the Liberty of the Press. I. The legal prerogatives of the Crown were untouched by the Revolution settlement. It was only the recent innovations which were swept away, leaving to the king- ship the legal character which it had possessed prior to the usurpations of the Tudors and Stewarts. By the written constitution the king still retains the supreme executive and a co-ordinate legislative power. He calls Parliament together, prorogues or dissolves it at pleasure, and may refuse the royal assent to any bills. He is the ' fountain of justice,' and as such dispenses royal justice through judges appointed to preside, in his name, over the various courts of judicature. As supreme magistrate and conservator of the peace, he nominally prosecutes criminals, and may pardon them after convic- tion. As supreme military commander, he has the sole power of raising, regulating, and disbanding armies and fleets. As the ' fountain of honour,' he alone can create peers (a power of the highest constitutional importance) and confer titles, dignities and offices of all kinds. He 1 36 & 37 Vict. c. 66, s. 9. XVI.] since the Revolution. 647 is the legal head and supreme governor of the National Church, and in that capacity convenes, prorogues, regu- lates, and dissolves all ecclesiastical synods or convoca- tions. 1 As the representative of the majesty of the State in its relations with foreign powers, he has the sole power of sending and receiving ambassadors, of contracting treaties and alliances, and of making war and peace. 3 But in practice these vast prerogatives have now long Now practically been exercised not at the will of the sovereign, but responsible of the responsible ministers of the Crown, who represent the will of the majority in the House of Commons. ' In outer seeming,' it has been well observed, ' the Revolution of 1688 had only transferred the sove- reignty over England from James to William and Mary. In actual fact, it was transferring the sovereignty from the king to the House of Commons. From the moment ministers. 1 On the early history of Convocation and its relations to the king and Convocation. Parliament something has been said supra, pp. 231, 232. From the passing of the Act 25 Hen. VIII. c. 19 {supra, p. 396), Convocation has ceased to possess any independent legislative power, Church and State being alike subjected to the supreme power of Parliament. Under Elizabeth it was occasionally consulted on questions affecting the national religion, and it confirmed, in 1562-3, the xxxix. Articles. By the king's licence Convoca- tion established certain canons in 1604 (which, however, not having been confirmed by Parliament, are not binding on the laity) ; and attempted to make further regulations in 1640 (supra, pp. 463, 545) ; bjit from the year 1664, when the practice of ecclesiastical taxation was discontinued, even discussions in Convocation practically ceased. About the time of the Revolution attempts were made to resuscitate the action of Convocation, more especially by Atterbury (afterwards Bishop of Rochester), who pub- lished a book entitled ' The Rights and Privileges of an English Convoca- tion.'- In 1717, the religious ferment excited by the Bangorian controversy Suspended, 1717. (arising out of the denunciation by the Lower House of Convocation of a sermon in favour of religious liberty preached by Hoadley, Bishop of Bangor,) induced the ministers of George I. to suddenly prorogue the would- be ecclesiastical Parliament. From this time Convocation, though regularly summoned, was for more than a century as regularly prorogued immediately after it had assembled. In 1850 it was again allowed to resume the dis- R esume d jg 50 . cussion of Church matters ; and in 1 86 1 Was empowered by Royal licence to alter the 29th Canon of 1603, which prohibited parents from acting as sponsors to their children : but it was specially provided in the licence that no alterations should be of any validity until confirmed by letters patent under the great seal. In 1872, letters of business were issued by the Crown empowering Convocation to frame resolutions on the subject of public worship, and these were afterwards incorporated in an Act of Par- liament (Act of Uniformity Amendment Act, 35 & 36 Vict. c. 35). See Hallam, Const. Hist. iii. 242-247 ; Stephen, Commentaries, ii. 544"546. 2 See Stephen, Commentaries, ii. 473-547- 648 Progress of the Constitution [Ch. Personal influence of the sovereign. Reaches its lowest point under George I. and George II. when its sole right to tax the nation was established by the Bill of Rights, and when its own resolve settled the practice of granting none but annual supplies "to the Crown, the House of Commons became the supreme power in the State. It was impossible permanently to suspend its sittings, or, in the long run, to oppose its will, when either course must end in leaving the Govern- ment penniless, in breaking up the army and navy, and in rendering the public service impossible.' 1 The mode in which the executive power of the Crown has gradually been transferred to what has £>een aptly termed ' a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation,' 2 has been already sketched in treating of the growth of the Cabinet. But though greatly weakened at the Revolution, the personal influence of the sovereign over the administration of affairs long continued to be openly exercised, and is still potent, to an extent which can be known only to the parties themselves, in the confidential intercourse of ministers with the Head of the State. In early times the king had been accustomed to preside in person at the council board, and necessarily exercised an immense influence upon its determinations. Abandoned about the close of the 14th century, this practice was revived by the Tudor and Stewart monarchs, and was maintained, after the Revolution, by William III. and by Anne. William III., a man of consummate political ability, was indeed his own prime minister, his own foreign minister, and his own commander-in-chief. Queen Anne not only regularly presided at Cabinet Councils, but occasionally attended debates in the House of Lords. It was only at the accession of George I. that the king's ignorance of the English language and his indifference to English politics caused the introduction of the practice — which has ever since been maintained 1 J. R. Green, Short History of the English People, p. 680. 2 Bagehot, Eng. Const, p. 13. xvi.] since the Revohition. 649 —of Cabinet Councils being held, as in the ante-Tudor times Privy Councils had been held, without the presence of the sovereign. But though firmly, and, as the event has shown, Long struggle of permanently, established under the first two Georges. George III. , , - „ , . , against the the system of Parliamentary government had to ministerial undergo a severe struggle for existence throughout s y stem - the reign of George III., who, not content with reigning, was determined also to govern. ' For the first and last time, since the accession of the House of Hanover, England saw a king who was resolved to play a part in English politics ; and the part which George the Third succeeded in playing was undoubtedly a memorable one. In ten years he reduced government to a shadow, and Disastrous turned the loyalty of his subjects into disaffection. In ^5^ of hls twenty he had forced the colonies of America into revolt and independence, and brought England to the brink of ruin. Work such as this has sometimes been done by very great men, and often by very wicked and profligate men ; but George was neither profligate nor great. He His wretched had a smaller mind than any English king before him, educatl0n - save James the Second. He was wretchedly educated, and his natural taste was of the meanest sort. " Was there ever such stuff," he asked, "as Shakspere?" Nor had he the capacity of using greater minds than his own by which some sovereigns have concealed their natural littleness. . On the contrary, his only feeling towards great men was one of jealousy and hate. He longed for the time when " decrepitude or death " might put an end to [the elder] Pitt ; and even when death had freed him from this "trumpet of sedition," he denounced the proposal for a public monument as " an offensive measure to me personally." But dull and petty His determina- as his temper was, he was clear as to his purpose and tlon t0 s ° wem ' obstinate in the pursuit of it. And his purpose was to rule. " George," his mother, the Princess of Wales, had continually repeated to him in youth, "George, be king." 650 Progress of the Constitution [Ch. He called himself always " a Whig of the Revolution," and he had no wish to undo the work which he believed the Revolution had done. It was his wish not to govern against law, but simply to govern — to be freed from the dictation of parties and ministers, to be, in effect, the first minister of the State. How utterly incompatible such a dream was with the Parliamentary constitution of the country as it had received its final form from Sunder- land, we have already seen ; but George was resolved to carry out his dream.' l The King's In pursuance of his settled resolve to wrest all power lors? counse from the hands of his ministers and to exercise it him- self, George began his reign by calling to his aid a cabal of secret counsellors, with Lord Bute, his groom of the stole, at their head. These were mainly composed of Tories whose Jacobite tendencies had hitherto kept them apart from public affairs, but who now, having ' abjured their ancient master, but retained their principles,' 2 brought to the service of the new sovereign the reveren- tial sentiments which had distinguished the adherents of the Stewarts. Supported by these ' king's friends ' and their followers in the House of Commons", the king endeavoured to govern independently of both Parliament and people, thwarted and opposed his ministers, and distributed at his own will the vast amount of, ecclesi- astical, military, and civil patronage which, during the reigns of his two immediate predecessors, had been practically at the disposal of the Cabinet. Premiership of The effect of this policy was soon seen in the resigna- 1762. ' tion of the ministers, who declined to retain responsibility without power ; and in 1762 Lord Bute, who thirteen months previously had been simply groom of the stole, was entrusted by the king with the premiership. But the intense unpopularity of Lord Bute both within and without Parliament soon rendered his position un- 1 J. R. Green, Short History of the English People, p. 740. 2 Walpole, Mem. i. 15, cited by May, Const. Hist. i. 13. xvi.] since the Revolution. 651 tenable ; and afraid, as he himself confessed, ' not only of falling himself, but of involving his royal master in his ruin,' he suddenly resigned, only, however, to retire His sudden fall. to the interior cabinet, whence he hoped to direct more securely the measures of the new ministry which, under His continued the presidency of Mr. George Grenville, the king had J£j£ 1 ^ uence appointed, at the recommendation of his favourite. But Grenville , . ministry. the new premier was by no means contented to be the mere agent of Lord Bute, and the king soon found him- *?is ul ' !m ate ° dismissal from self bound to dismiss the favourite from court, . and to court. promise that he should not be suffered to interfere in the royal councils ' in any manner or shape whatever.' Arbitrary During the Bute and Grenville ministries George III. Spring the" entered on a course of arbitrary conduct which approached Bute and Gren- as nearly to the character of the Stewart government as the ■ difference of circumstance would allow. The Duke of Devonshire having declined to attend the council summoned to decide upon peace with France — a measure highly unpopular with the nation — was in- sulted by the king, forced to resign his office of Lord Chamberlain, and was struck out of the list of privy councillors by the king's own hand. For presuming, as peers of Parliament, to express disapprobation of the peace, the Dukes of Newcastle and Grafton and the Marquis of Rockingham were dismissed from the lord- lieutenancies of their counties, and the Duke of Devon- shire, to avoid a similar affront, found it necessary to resign. Earl Temple was also dismissed from the lord- lieutenancy and from the Privy Council on account of his friendship for John Wilkes, whose journal, the North Briton, had excited the anger of the court by denouncing the peace and the ministry with unexampled boldness and bitterness. For their votes in Parliament, General Conway was dismissed from his civil and military com- missions, Colonel Barre" and Colonel A'Court were de- prived of their military commands, and Lord Shelburne of his office of aide-de-camp to the king. Mr. Fitzherbert 652 Progress of the Constitution [Ch. The Rocking- ham ministry, 176S. Organized opposition in Parliament by the 'king's friends ' to the repeal of the Stamp Act in 1766, was removed from the Board of Trade, Mr. Calcraft from the office of deputy muster-master. All parliamentary placemen who failed to vote in accordance with the king's wishes were summarily dismissed, and even clerks in public offices and other small officials shared the fate of the patrons by whom they had been appointed. 1 ' To commit General Conway or Colonel Barre to prison,' remarks Sir Erskine May, ' as James I. had committed Sir Edwin Sandys, and as Charles I. had committed Selden and other leading members of the House of Commons, could not now have been attempted. Nor was the ill-omened adventure of Charles I. against the Five Members likely to be repeated ; but the king was violating the same principles of constitutional government as his arbitrary predecessors. He punished, as far as he was able, those who had incurred his dis- pleasure, for their conduct in Parliament ; and denied them the protection which they claimed from privilege and the laws of their country.' 3 The king's ' policy of proscription ' was soon, however, destined, for a time at least, to very ignominious failure. In 1765 he found himself reduced to the necessity of accepting as premier the Marquis of Rockingham, whom he had so recently removed from his lord-lieutenancy ; while General Conway, who had been dismissed from an office in the king's household and from the command of his regiment, became Secretary of State and ministerial leader of the House of Commons. But though forced by circumstances to place in office men whom he detested, George III. was still determined to have his own way. He now adopted a different system of tactics. Having, in 1766, vainly resisted in council the proposal of his ministers to repeal the Stamp Act, which they deemed absolutely necessary for the con- ciliation of the American colonies, he opposed them in Parliament "by means of an organized opposition of the 1 May, Const. Hist. i. 21 — 30. 2 Id. 1. 3°- xvi.] since the Revolution. 653 'king's friends,' made up not only of independent members of the court party, but of office-holders under the Crown, who were encouraged by the king to oppose his ministers, and were retained and protected in their offices while voting with the Opposition. Similar unconstitutional tactics were made use of and to Mr. later on, in 1783, against the Coalition Ministry, in order Bafta. 1 ?^. to defeat in the Lords the India Bill introduced by Mr. Fox, Secretary of State. Lord Temple was authorized to protest against the bill in the king's name and to canvass the peers against the measure of his own ministers. ' His Majesty,' the king wrote on a card, as an authority for the proceeding, ' allows Earl Temple to say that whoever voted for the India Bill was not only not his friend, but would be considered by him as an enemy ; and if these words were not strong enough, Earl Temple might use whatever words he might deem stronger, and more to the purpose.' 1 Indignant at this Declaration of conduct, the Commons passed a resolution, on the 17th j^n^h^e December, 1783, 'that to report any opinion, or pre- of the king's tended opinion, of his Majesty, upon any bill, or other j^' proceeding, depending in either House of Parliament, with a view to influence the votes of the members, is a high crime and misdemeanour, derogatory to the honour of the Crown, a breach of the fundamental privileges of Parliament, and subversive of the constitution.' 2 It was, however, during the administration of Lord i n fl uen ce of the North who held office from 1770 to 1782, that the- king attains its 1,uu "i ' '' ' maximum personal influence of the king attained its highest pitch, during Lord ' Not only,' we are told, ' did he direct the minister in all f s ^'*^ 2 . important matters of foreign and domestic policy, but he instructed him as to the management of debates in Parliament, suggested what motions should be made or opposed, and how measures should be carried. He reserved for himself all the patronage ; he arranged the 1 Court and Cabinets of Geo. III. i. 288, 289 ; May, Const. Hist. i. 68. 2 Com. Journ. xxxix. 842. 654 Progress of the Constitution [Ch. whole cast of the administration ; settled the relative place and pensions of ministers of state, law officers, and members of the household ; nominated and pro- moted the English and Scotch judges ; appointed and translated bishops and deans ; and dispensed other pre- ferments in the Church. He disposed of military govern- ments, regiments, and commissions, and himself ordered the marching of troops. He gave and refused titles, honours, and pensions.' 1 He was, in fact, as declared by Mr. Fox in the House of Commons, ' his own unadvised minister,' Lord North submitting to be the mere mouth- piece of his royal master, and continuing to carry on the American war, although, as he informed the king in 1779, 'he held in his heart, and had held for three years past,' the opinion that its continuance ' must end in ruin to his Majesty and the country.' 3 To enforce his system of personal government the king professed himself ready to adopt the most extreme measures. In 1770, when Lord Chatham was about to move an address for dissolving Parliament, the king, in a conversation with General Conway, said, laying his hand upon his sword, ' I will have recourse to this sooner than yield to a dissolution.' 3 He several times threatened to abdicate and retire to Hanover rather than accept ministers or measures of which he disapproved ; a threat which was on one occasion met by the significant remark of Lord Thurlow, ' Your Majesty may go ; nothing is more easy ; but you may not find it so easy to return when your Majesty becomes tired of staying there.' i The royal veto. Since the accession of the House of Hanover, no sovereign of this country has exercised the prerogative of refusing the royal assent to a bill which has passed both Houses, 6 but it is not surprising to find that 1 May, Const. Hist. i. 58, citing Corr. of Geo. III. with Lord North passim, and Wraxall's Mem. ii. 148. 2 King's letters to Lord North, cited by May, Const. Hist. i. 50. 3 Rockingham Mem. ii. 179. * May, Const. Hist. i. 64. 6 The last occasions on which the prerogative of rejecting bills was xvi.] since the Revolution. 655 George III. was prepared to do so. ' I hope/ he wrote to Lord North, in 1774, ' the Crown will always be able, in either House of Parliament, to throw out a bill ; but I shall never consent to use any expression which tends to establish that at no time the right of the Crown to dissent is to be used.' J At length, in 1780, Mr. Dunning proposed and carried Mr. Dumping's iri the House of Commons his celebrated resolutions tiie°influence n of affirming 'that the influence of the Crown has increased, the Crown, 1780. is increasing, and ought to be diminished ; ' 3 but it was not until the lapse of two more years, and after repeated motions of want of confidence in the Government, that Lord North was compelled to resign office, and the king Fall of Lord to acknowledge, without reserve, the Independence of m^ty 1782. America. The abrupt and contemptuous dismissal, in 1783, of Abrupt dis- the Coalition Ministry, who were supported by a vast coalition majority in the House of Commons, brought the king ministry, 1783. into critical conflict with his Parliament, from which he Critical relations was only saved by the genius, perseverance, and tact of and' Parliament. William Pitt, whom the king had entrusted with the Mr. Pitt pre- formation of a government. In spite of votes of want of mier > ' 7 83- confidence, and of attempts to prevent a dissolution by postponing the supplies, the youthful premier of twenty- five gained the enthusiastic support of the nation, and within four months the opposition majority, which had been two to one against the ministry, dwindled down to a bare majority of one. Parliament was now dissolved ; and a general election gave to Pitt an overwhelming majority, which maintained him in power for seventeen years. The triumph of the king and the minister was complete ; Triumph of the ascendency of the Crown was established, and con- ^ and the tinued, for nearly fifty years, to prevail over every other The king . s per . nower in the state. But the king's will was no longer sonal influence " ' . diminished ; exerted were in 1692, when William III. refused the Royal assent to the Bill for triennial Parliaments, and in 1707, when Queen Anne rejected a ^LorTBrougnarn's Works, iii. 85. - 2 Pari. Hist. xxi. 339. 656 Progress of the Constitution [Ch. but still very powerful. Diminution of personal in- fluence of the sovereign since the reign of George III. Its occasional assertion. supreme, as it had been during the administration of Lord North. Although he continued his accustomed activity in public affairs, ' he had now a minister who, with higher abilities and larger views of state policy, had a will even stronger than his own. Throughout his reign, it had been the tendency of the king's personal administration to favour men whose chief merit was their subservience to his own views, instead of leaving the country to be governed — as a free state should be governed — by its ablest and most popular statesmen. He had only had one other minister ^of the same lofty pretensions — Lord Chatham ; and now, while trusting that statesman's son — sharing his councils, and approving his policy — he yielded to his superior intellect.' l The wishes of the king, however, still exercised great influence on the ministers in the general policy of the Govern- ment ; and it was the king's persistent refusal to sanction the introduction of a measure for the relief of the Roman Catholics which at length caused Pitt to resign. Out of personal regard for the king, he shortly after- wards promised never to revive the Catholic question ; and on his again taking office in 1804, he was prevented from strengthening his government by the admission of Mr. Fox to the Cabinet, by the king's absolute refusal. George declared ' that he had taken a positive determi- nation not to admit Mr. Fox into his councils, even at the hazard of a civil war! 3 Since the reign of George III., but more especially since the Reform Act of 1832 made the House of Com- mons what it had ceased to be — a body really represent- ing the opinions of the largest estate of the realm, the Commons of England — the personal influence of the sovereign in the executive administration has steadily declined. It has, however, been asserted at intervals with effect. Under George IV., the influence of the 1 May, Const. Hist. i. 78. Id. i. 100. XV L] since the Revolution. 657 Crown remained paramount, and the two great parties in the State sought the royal favour first, as the avenue to Parliamentary support. William IV., in 1834, at the dictate of his own personal wishes, suddenly dismissed Sudden dis- the Whig ministry of Lord Melbourne, and entrusted to Melbourne's Sir Robert Peel the formation of a government from a m ™? tr y ty r & William IV. party whose followers numbered less than a fourth of 1834. the House of Commons. ' The right of the king to dis- miss his ministers,' observes Sir Erskine May, 'was unquestionable : but constitutional usage has prescribed certain conditions under which this right should be exercised. It should be exercised solely in the interests of the State, and on grounds which can be justified to Parliament, to whom, as well as to the king, the ministers are responsible. ... It was not directly alleged that the ministers had lost the confidence of the king ; and so little could it be affirmed that they had lost the con- fidence of Parliament that an immediate dissolution was counselled by the new administration. The act of the king bore too much the impress of his personal will, and too little of those reasons of state policy by which it should have been prompted : but its impolicy was -so signal as to throw into the shade its unconstitutional character.' 1 After a gallant Struggle — in which he Short premier- rivalled the great qualities formerly displayed by Pitt— ^P^ f £ el against the hostile majority which his appeal to the followed by the country had evoked, Peel was compelled to resign, and Melbourne 6 the Melbourne ministry, with some alterations, was re- ministry. instated in office. It was still in power at the accession of her present most gracious Majesty, and was at once honoured with her confidence. Growing unpopularity caused it to resign in 1839, and the summons of Sir Robert Peel to form an administration gave rise to what is known as the ' Bedchamber Question.' Nearly all the ladies of The Bedcham- the household were related to the members of the Mel- ^er Question, 1 May, Const. Hist-, i, 147. 6 5 8 Progress of the Constitution [Ch. Sir Robert Peel's resolution of want of con- fidence in the ministry, 1841. He becomes premier. The Queen's memorandum on the relations of a Secretary" of State to the Crown, 1850. bourne cabinet or to their political adherents ; and Sir Robert Peel, convinced of the difficulties which would beset a minister who should leave about her Majesty's person the nearest relatives of his political opponents, informed the Queen that he could not undertake the formation of a ministry unless he was permitted to make some changes in the higher offices of the court, 'including the ladies of her bedchamber. The Queen, by the advice of Lord Melbourne and his colleagues, refused ' to adopt a course which she conceived to be contrary to usage, and which was repugnant to her feelings.' Sir Robert Peel declined to accept office on these terms ; and the Melbourne ministry conducted the government for two years longer. It again resigned in 1841, after an appeal to the country had failed to reverse the verdict of the Hous'e of Commons, pronounced by a majority of one, on a resolution of Sir Robert Peel, affirming that the ministers of the Crown did not possess the confidence of the House of Commons, and ' that their continuance in office, under such circumstances, was at variance with the spirit of the constitution.' On assuming office, Peel met with no further difficulties on the bedchamber question. 'Her Majesty was now sensible,' says Sir Erskine May, ' that the position she had once been advised to assert was constitutionally un- tenable. The principle which Sir Robert Peel applied to the household has since been admitted, on all sides, to be constitutional.' x The latest illustration of the personal share which the sovereign takes in public business is afforded by the memorandum communicated by the Queen, in 1850, through Lord John Russell, her prime minister, to Lord Palmerston, the secretary of state for foreign affairs. 'The Queen requires,' it declared, 'first, that Lord Palmerston will distinctly state what he proposes in a 1 May, Const. Hist. i. 159. xvi.] since the Revohition. 659 given case, in order that the Queen may know as dis- tinctly to what she is giving her royal sanction. Secondly, having once given her sanction to a measure, that it be not arbitrarily altered or modified by the minister. ' Such an act she must consider as failing in sincerity towards the Crown, and justly to be visited by the exercise of her constitutional right of dismissing that minister. She expects to be kept informed of what passes between him and the foreign ministers before im- portant decisions are taken based upon that intercourse ; to receive the foreign despatches in. good time ; and to have the drafts for her approval sent to her in sufficient time to make herself acquainted with their contents before they must be sent off.' But in controlling one minister the sovereign still acts upon the advice and responsibility of another — her first minister — to whom copies of despatches and other information are also communicated in order to enable him to give such advice effectually. 1 The constitutional right of dismissing a minister, Constitutional . .11 right 01 dis- asserted in the Queen's memorandum, is now practically m i ss ing a placed at the disposal of the premier and the Cabinet, mimstei " who are thus enabled, as a whole, to exercise, through the Crown, a check upon each individual member. This was exemplified, shortly after the French coup detect of the 2nd December, 1851, when Lord Palmerston was removed from the foreign secretary-: asserted in the ship in Lord John Russell's administration, on the pXe^tonfrom around that he had exceeded his authority in express- the foreign S luu " ««*•■ _ » secretaryship in ing to the French ambassador opinions favourable to ,8 S ,. the policy of the recent coup (Tttat and at variance with the non-intervention despatch agreed upon by the Cabinet. 3 While the personal influence of the sovereign in the Increased power r of the Executive. government of the country has steadily decreased since the » May, Const. Hist. i. 160. - IS. i. 161. V V 2 660 Progress of the Constitution [Ch. reign of George III., the power of the Crown, as wielded by its ministers, has continued to increase from the Revolu- tion down to the present time. The expansion of the em- pire, the great extension of public establishments, the vast increase of patronage— civil, military, and ecclesiastical — and the more profuse distribution of honours, have all largely added to the influence of the executive govern- ment, while its coercive power has been augmented by the establishment of the police, the recent concentration of the military forces, the abolition of purchase in the army, and the transfer of the command and jurisdiction over the auxiliary forces to the sovereign, to be exercised through the secretary of state for war. During the present reign the power and influence of the Crown, always. wisely and constitutionally exercised for the public benefit, on the advice of responsible ministers, have provoked no attempts at restraint, and the ancient jealousy of the Crown, inherited from the struggles of our ancestors, may now almost be said to have died out among the people. Revenues of It was at the Revolution that a limitation was for the first time imposed upon the personal expenditure of the sovereign. Previously it had been customary for the Parliament, at the commencement of each reign, to grant to the king the ordinary Crown revenues, consist- ing of (i) the hereditary revenues of the Crown itself, viz., the rents of Crown lands, the feudal rights (sur- rendered by Charles II. in 1660, in exchange for the excise duties), the proceeds of the post-office and wine licences ; and (2) the produce of taxes voted to the king for life. The annual revenue of Charles II. from these sources was sometimes a little above, sometimes a little below, the sum of £1,200,000, which was fixed by Parlia- ment as the ordinary revenue of the Crown ; that of James II. amounted on an average to £1,500,964 a year, out of which the king was expected, in time of peace, to support the royal dignity and civil government and the Crown. xvi.] since the Revolution. 66 1 also the public defence. But whatever remained after payment of these necessary expenses of the government was at the king's absolute disposal ; in addition to which Charles II. did not hesitate to apply to his own privy purse large sums of money which had been specially appropriated by Parliament for the purposes of the war. At the accession of William and Mary, however, Parlia- ment fixed the annual revenue of the Crown, in time of peace, at £1,200,000, of which about £700,000 . (derived The 'Civil from the hereditary revenues of the Crown, and from a Llst ' part of the excise duties) was separately appropriated to what was afterwards called the king's ' Civil List,' com- prising the personal expenses of the king, the support of the royal household, and also the payment of civil offices and pensions, which were more fairly chargeable to the remaining portion of the Crown revenue devoted to the strictly public expenditure of the State. The principle that the king's regular and domestic expenses should be restricted to a fixed annual sum, distinct from the other departments of public expendi- ture, was adhered to in succeeding reigns, and down to the accession of George II. the Civil List was maintained at £700,000. Both Anne and George I., however,/ in- curred debts, the former of £1,200,000, the latter of £1,000,000, which were discharged by Parliament by loans charged upon the Civil List itself. The Civil List of George II. was fixed at a minimum of £800,000, Parliament undertaking that if the hereditary revenues should produce less than that sum, it would make up the deficiency — a liability which it discharged in 1746, by paying off a Civil List debt of £456,000. But the direct control of Parliament over the personal expenses of the king was first acquired on the accession of George III., who surrendered to the nation his life interest in the hereditary revenues, and all claim to any surplus which might accrue from them, in return for a fixed Civil List of £800,000 (increased in , 1777 to 662 Progress of the Constitution Lch. £900,000) 'for the support of his household, and the honour and dignity of the Crown.' In addition, however, to the fixed Civil List, George III. enjoyed a considerable further income, derived from the droits of the Crown and Admiralty and other sources, which was wholly inde- pendent of Parliamentary control ; and yet, notwith- standing the king's economical and even parsimonious mode of living, and the removal, from time to time, from the Civil List of various charges which were unconnected with the personal comfort and dignity of the sovereign, his struggle to establish the ascendency of the Crown by systematic bribery of members of Parliament with places, pensions, and direct gifts of money, compelled him to make repeated applications to the nation for pay- ment of debts upon the Civil List. Altogether, the arrears paid off by Parliament during his reign — exclusive of a debt of £300,000 charged on the Civil List in 1782, when its expenditure was curtailed and split up into separate classes — amounted to a total of ^3>398,°oo. 1 William IV. on his accession surrendered not only the hereditary revenues, but all the other sources of revenue which had been enjoyed by his predecessors ; receiving in return a Civil List of £'$ 10,000, which was at the same time relieved from most of the charges which more properly belonged to -the civil government of the State. The Civil List of Queen Victoria was settled, on the same principles, at the annual sum of £385,000 ; and while the removal of civil charges has freed the Crown from any suspicion of indirect influences, the improved administration of the present sovereign and her two immediate predecessors has rendered it unnecessary to apply to Parliament during their reigns for the discharge of debts upon the Civil List. Crown lands. The surrender of the Crown lands to be disposed of 1 Report on Civil List 1815, p. 4 ; May, Const. Hist. i. 243. XVI -] since the Revolution. 66; by Parliament, like the other revenues of the State, for ' the public service — begun by George III. and now 'by a custom as strong as law ' repeated by each sovereign at the beginning of his reign — is one instance among others of the return in modern constitutional usage to the simpler principles of the older constitution. We have seen, in an earlier chapter, how the folkland, the land of the nation which could not be alienated without the consent of the Witan, gradually changed into Terra Regis, the land of the king, to be dealt with according to his personal pleasure. 1 Continually augmented by feudal escheats and forfeitures, the Crown lands were as continually diminished by improvident grants to the royal favourites and followers. Attempts were made to check this abuse from time to time, but without effect, and Charles I. still further diminished the royal patrimony by extensive sales and mortgages. His example was followed by the Parliaments of the Commonwealth ; and although at the Restoration these latter sales were declared void, Charles II. soon squandered the estates which had been restored to the Crown, and in three years reduced their annual income from £217,000 to £100,000. James II. and William III. were equally liberal and improvident, and, on the accession of Queen Anne, it was found by Parliament that the Crown lands had been so reduced that the net income from them scarcely exceeded the rent-roll of a squire. 2 To preserve what still remained, an Act was passed (1 Anne, c. 8, s. 5) which, after sadly reciting 'that the necessary expenses 2 The Crown lands received some augmentation from forfeitures after the rebellions of 1 715 and 1745 ; but during the first 25 years of George III. they produced a net average rental of little more than £6,000 a year. Im- proved administration and the rise in the value of land have since rendered them much more productive. In 1798 they were valued at £201,250 a year- in 1812 at £283,160; in 1820 they actually yielded £114,852 ; in 18^0' they produced £373,770 ; and in i860 they returned an income of £416,530, exceeding the Civil List granted to the Queen. May, Const. Hist. 'i. 255. 664 Progress of the Constitution [Ch. of supporting the Crown, or the greater part of them, were formerly defrayed by a land revenue, which had, from time to time, been impaired by the grants of former kings and queens, so that her Majesty's land revenues could then afford very little towards the support of her government,' prohibited absolute grants entirely, and prescribed stringent conditions as to the length of term and rentals of all future leases. Thus the small remnant of the land which had once been the land of the people was saved from utter dissipation, and since its restoration to the nation by George III. ' the Terra Regis of the Norman has once more become the folkland of the days of our earliest freedom.' 1 Private property This change has been accompanied by the restoration of the sovereign. ^ ^ e c rown of a right which it had lost during its uncontrolled tenure of the hereditary estates. During the days when the folkland was really the land of the people, the king, equally with a subject, had enjoyed the right of inheriting, purchasing, devising, and other- wise disposing of lands which were his own private property. 2 But when the kingship had become strictly hereditary, and the lands of the nation came to be regarded as the personal property of the king, the person and the office of the king were held to be so thoroughly identified that his private estates were merged in the royal demesne and made incapable of alienation by will. After the restoration of the Crown lands to the nation, it was felt to be reasonable 'that a restriction which belonged to a past state of things should be swept away, and that sovereigns who had surrendered an usurped power which they ought never to have held should be restored to the enjoyment of a natural right which ought never to have been taken from them.' 3 1 Freeman, Growth of Eng. Const, p. 134. 5 Supra, p. 14. 3 Freeman, Growth of Eng. Const, p. 136 ; and see Allen, Royal Prero- gative, p. 154. XVI -] since the Revohition. 665 Accordingly ,the sovereign has again been invested with the right of acquiring and disposing of private property in the same manner as any other member of the nation. 1 II. Since the Revolution, the House of Peers — the lineal (II.) The House representative of the old Great Councils and the older ofLords - Witenagemots 2 — has undergone changes in its numbers, composition, and political weight and influence, greater even than the changes which, during the same period, have so materially affected the practical exercise of the authority of the Crown in government and legislation. In the Parlia- ment of 1454, the last held before the outbreak of the Number of Wars of the Roses, the number of lay peers who attended eers ' was 53. In 1485, only 29 received writs of summons to the first Parliament of Henry VII. 3 The greatest number summoned by Henry VIII. was 5 1, which had increased at the death of Elizabeth to 59. In the meantime, by the suppression of the monasteries and the consequent removal from the Upper House of about 36 abbots and priors, the spiritual peerage (including 5 of the new sees created by Henry VIII. 4 ) had been reduced to the number of 26, at which it has ever since remained. The four Stewart kings created 193 new peers, but as Rapid increase during their reigns 99 peerages became extinct, the stewarVkings. number of the peerage at the Revolution of 1688 actually stood at about 150, which was raised by William III. and Queen Anne to 168. The House of Lords was Addition of 16 further increased in 1706, on the passing of the Act of ^Hf Scot* Union with Scotland, by the addition of 16 representa- land in 1706. . tive peers from that kingdom, elected at the commence- ment of every Parliament. This rapid augmentation of the peerage, but more especiallythe realization of the power of the Crown to swamp the majority in the Upper House (manifested in 171 1 by Queen Anne's creation of. 12 peers in one batch), excited the jealousy of the Lords, and 1 See 39 & 40 Geo. III. c. 88 ; 4 Geo. IV. c. 18 ; 25 & 26 Vict. °' * Sutra, p. 212. 3 Supra, p. 335- 4 Supra, p. 352. 666 Progress of the Constitution [Ch. Attempts to limit the pre- rogative of creating peers in 1 719, 1720. Profuse crea- tions of peers under George III. Pitt and the peerage. induced the ministry in 1719 and 1720 to support pro- posals for the limitation of the royal prerogative of creating peers. With the concurrence of George I., bills were introduced, in the former year by the Duke of Somerset, and in the latter by the Duke of Bucking- ham, providing that the Crown should be restrained from augmenting the then existing .number of 178 peerages by more than 6, although new peerages might be created in the place of any which should be- come extinct ; and that 25 hereditary peers should be substituted for the 16 elective peers of Scotland. This unconstitutional scheme was strongly opposed in the House of Commons by Sir Robert Walpole and others, and finally rejected by a large majority. Its passing would have transformed the House of Lords into a close aristocratic body, independent alike of the Crown and of the people. It would have eliminated from the complex mechanism of the constitution what has been termed its 'safety-valve,' 1 — that peer-creative power by which the sovereign, on the advice of his responsible ministers, is enabled, in cases of great emergency, to force the peers to bow to the will of the people expressed by their re- presentatives in the House of Commons, and thus to render possible the smooth and continuous working of our present system of Parliamentary government. At the accession of George III. the number of peer- ages amounted to only 174, but throughout his long reign new creations were multiplied with unprecedented profusion. In the earlier part of his reign the peer- creative power was mainly wielded by the king himself, as one means of carrying out his determination to break up the system of party government ; but Mr. Pitt, on acceding to office, employed it for another and a far nobler purpose. The consolidation of his own authority as minister was naturally one of the objects which he 1 Bagehot, Eng. Const, 229. xvi.] since the Revolution. , 667 had in view, but his great aim was to reform the House of Lords by changing it from a narrow and exclusive caste into a large representation of the intellect, the achievements, and more especially of the wealth of England. He wished, he said, 'to reward merit, to recruit the peerage from the great landowners and other ^opulent classes, and to render the Crown independent of factious combinations among the existing peers.' 1 With this object, while himself disdaining honours, he dis- pensed them to others with the greatest profusion. In the first five years of his administration he created 48 new peers ; at the end of eight years he had created between 60 and 70 ; and later, in the two years 1796-7, he created no less than 35. In 1801, at the end of his seventeen years' administration, his creations had reached the total of 141. The example set by Pitt was followed by succeeding ministers, and at the end of George III.'s reign the actual number of peerages conferred by that king (in- cluding some promotions of existing peers to a higher rank) amounted to the enormous number of 388. The House of Lords was further augmented on the Union with Ireland in 1801, by the addition of 28 Irish repre- Addition of 28 sentative peers, elected, not for each Parliament only pMrTtflreland, like the Scotch representative peers, but for life. 3 At l8oj - 1 Speech on the 16th January, 1789, cited in May, Const. Hist. i. 278. 2 There were other differences in the mode of treating the Scotch and Irish peerage. From the date of the Union with Scotland the Crown has been debarred from creating any new Scottish peers, but the then existing peerage of Scotland was perpetuated in its integrity as an exclusive aristocracy. On the Union with Ireland, however, it was determined to gradually diminish the excessive numbers of the Irish nobility, and it was therefore provided 'by the Act of Union that only one Irish peerage should be created for every three which should become extinct, until the reduction of the number to 100, at which figure it might be maintained by the creation of one Irish peerage as often as a peerage became extinct, or as often as an Irish peer should become entitled, by descent or creation, to a peerage of the United Kingdom. At the same time the privilege was .granted to all Irish peers (except the representative twenty-eight for the time being) of sitting in the House of Commons if elected by any con- stituency in Great Britain, but not in Ireland. The peerage of both Scotland and Ireland has been undergoing a process of gradual absorption 668 Progress of the Constitution [Ch. Changes in the character and composition of the House of Lords. the same time four Irish bishops were admitted to seats in the Upper House of the United Kingdom, sitting by rotation of sessions as representatives of the Irish episcopate. 1 The vast increase in the peerage under George Ill- affected not merely the numbers but the whole character of the House of Lords. ' Up to this time/ observes a recent historian, 2 ' it had been a small assembly of great nobles, bound together by family or party ties into a distinct power in the State. By pouring into it members of the middle and commercial class, who formed the basis of its political power, small landowners, bankers, merchants, nabobs, army contractors, lawyers, soldiers, and seamen, Pitt revolutionized the Upper House. It became the stronghold, not of blood, but of property, the repre- sentative of the great estates and great fortunes which into the peerage of the United Kingdom. In i860 the number of Scottish peers, which at the time of the Union was 154, had been reduced to seventy-eight, of whom no less than forty sat in the House of Lords by virtue of British peerages created since the Union ; and as no new creations can be made, we may look to the ultimate extinction, at no distant date, of all but sixteen Scottish peers not embraced in the British peerage. These sixteen peers, instead of continuing a system of self-election, will then probably be incorporated with the British peerage. Of Irish peers, there were in i860, 193, of whom seventy-one sat in Parliament as peers of the United Kingdom, in addition to the twenty-eight representative peers. But by the terms of the Act of Union the Irish peerage is never to fall below the number of 100. ' By this fusion of the peerages of the three kingdoms,' remarks Sir Erskine May, 'the House of Lords has grown at once more national, and more representative in its character.' As different classes of society have become represented there, so different nationalities have also acquired a wider representation.' May, Const. Hist. i. 280, 281, 290. 1 On the disestablishment of the Church of Ireland in 1869, the Irish bishops lost their seats in Parliament. Attempts were made in 1834, 1836, and 1837, to exclude the episcopal element altogether from the House of Lords, but unsuccessfully. It was, however, determined by the Legislature in 1847, when a new bishopric was created for Manchester, that no increase in the existing number of twenty-six bishops in the Upper House should take place (10 & 1 1 Vict. c. 108). The two archbishops, and the bishops of London, Durham, and Winchester, have always a right to sit in Parlia- ment, but the bishop last elected to any other see (except Sodor and Man, whose bishop is in no case a lord spiritual) cannot claim a seat until another vacancy has occurred. May, Const. Hist. i. 301 : Stephen, Com. iii. 10. r ' 2 J. R. Green, Hist, of Eng. People, p. 792. xvi.] since the Revolution. 669 the vast increase of English wealth was building up. For the first time, too, in our history, it became the dis- tinctly conservative element in our constitution. The full import of Pitt's changes has still to be revealed, but in some ways their results have been very different from the end at which he aimed. The larger number of the ^peerage, though due to the will of the Crown, has prac- tically freed the House from any influence which the Crown can exert by the distribution of honours. This change, since the power of the Crown has been practi- cally wielded by the House of Commons, has rendered it far harder to reconcile the free action of the Lords with the regular working of constitutional govern- ment. On the other hand, the larger number of its members has rendered the House more responsive to public opinion, when public opinion is strongly pro- nounced ; and the political tact which is inherent in great aristocratic assemblies has hitherto prevented any collision with the Lower House from being pushed to an irreconcileable quarrel. Perhaps the most direct result of the change is seen in the undoubted popularity of the House of Lords with the mass of the people. The large number of its members, and the constant additions to them from almost every class of the community, has secured it as yet from the suspicion and ill-will which in almost every other constitutional country has hampered the effective working of a second legislative chamber.' The largely increased numbers of the House of Lords, Political posi- and the more representative character which it has ac- h "use of Lords, quired through the changes in its composition here briefly sketched, have enabled it to preserve very much of its ancient authority and political influence. But it has nevertheless tended — especially since the Reform Act of 1832 — to decline more and more from the position which it still theoretically occupies, of a co-ordinate legis- lative power, and to become simply a revising and sus- pending House — altering and modifying bills sent up 67o Progress of the Constitution [Ch. Determined opposition of the Lords to the Reform Bills of 1831 and 1832 overcome by a threatened creation of peers : which is de- nounced as unconstitutional. Earl Grey's vin- dication of the proposed creation. from the Commons, rejecting them sometimes when the mind of the nation is not thoroughly made up in their favour, but yielding to the national will whenever un- equivocally expressed. 1 The constitutional position of the Lords with regard to legislation of which they disapprove, but which is 'sup- ported by the ministers of the Crown, the House of Commons, and the people, may be said to have been definitely settled by the result of the memorable struggle with the Upper House in 183 1 and 1832 on the passing of the Reform Bill. After sixteen peers had been created to assist the progress of the measure, the continued opposition of the House of Lords was at length overcome by the private persuasions of the king, and the knowledge that he had consented to his ministers' request for power to create a sufficient number of peers to ensure a majority. The threatened creation of peers was denounced at the time by the Duke of Wellington and the Tory party generally as ' an un- constitutional exercise of the prerogative ; ' but it was admirably answered by Earl Grey : ' I ask what would be the consequences if we were to suppose that such a prerogative did not exist, or could not be constitutionally 1 The late Earl of Derby, in speaking against the second reading of the Corn Importation Bill, in 1846, said : ' My lords, if I know anything of the constitutional importance of this House, it is to interpose a salutary obstacle to rash and inconsiderate legislation ; it is to protect the people from the consequences of their own imprudence. It never has been the course of this House to resist a continued and deliberately expressed public opinion. Your lordships always have bowed, and always will bow, to the expression of such an opinion ; but it is yours to check hasty legislation leading to irreparable evils. ' (Hansard, Deb. Ixxxvi. p. 1175.) Similarly, the late Lord Lyndhurst, speaking on the second reading of the Oaths Bill, in 1858, said in the House of Lords : ' It is part of our duty to originate legislation ; but it is also a most important part of our duty to check the inconsiderate, rash, hasty, and undigested legislation of the other House ; — to give time for consideration ; and for consulting or perhaps modifying the opinions of the constituencies ; but I never understood, nor could such a principle be acted upon, that we were to make a firm, deter- mined, persevering stand against the opinion of the other House of Parlia- ment, when that opinion is backed by the opinion of the people ; and, least of all, on questions affecting, in a certain degree, the constitution of that House, and popular rights. If we do make such a stand, we ought to take care that we stand on a rock.' (Hansard, Deb. 3rd ser. ii. p. 1768.) XVI -] since the Revolution. 671 exercised ? The Commons have a control over the power of the Crown, by the privilege, in extreme cases, of refusing the supplies ; and the Crown has, by means of its power to dissolve the House of Commons, a con- trol upon any violent and rash proceedings on the part of the Commons ; but if a majority of this House is to have the power, whenever they please, of opposing the declared and decided wishes both of the Crown and the people, without any means of modifying that power, — then this country is placed entirely under the influence of an uncontrollable oligarchy. I say that, if a majority of this House should have the power of acting adversely to the Crown and the Commons, and was determined to exercise that power, without being liable to check or control, the constitution is completely altered, and the government of this country is not a limited monarchy : it is no longer, my lords, the Crown, the Lords, and the Commons, but a House of Lords — a separate oligarchy — governing absolutely the others.' x In its practical aspect, an extraordinary creation of An extra- peers is to the House of Lords what a dissolution is to Son"ofpeers ' the House of Commons : and although such a creation equivalent to ought never to be made use of except in the greatest emergency, its use in such an emergency is not only constitutional, but essential to the safety of the constitu- tion itself. 3 The political weight of the Upper House has been to Political weight some extent injuriously' affected by the indifference to affectedby their public business displayed (though with many brilliant small attendance . * , 1 , 1 1 r •. 1 1 , and indifference exceptions) by the great body of its members, and by to business. their scanty attendance, favoured by the rule which requires only three peers to make a quorum and by the practice of giving proxies. By a resolution of the House, Proxies discon- in 1868, this latter practice has been advantageously tinued > l868 - 1 Hansard, Deb. 3rd ser. xii. 1006 (May 17, 1832). 2 See May, Const. Hist. i. 315. 672 Progress of the Constitution [Ch. Attempts to revive life- peerages. (III.) The House of Commons. Number of members. discontinued : but the attempts made, in 1855 by the Crown, and in the following year by bill founded on the recommendation of a committee of the Lords, to increase the critical power and representative character of the Upper House by calling up men of ability as life-peers, were unfortunately defeated. 1 III. Like the House of Lords, the House of Commons also has undergone very important changes in its num- bers, its composition, and its political influence. In the year 1295, the date of the perfect constitution of the national Parliament, 3 the members of the Lower House numbered 274, comprising 74 knights of the shire, and 200 citizens and burgesses. Under Edward III. and his three immediate successors the number of the burgesses was about 180, fluctuating in different Parliaments ac- cording to the negligence or partiality of the sheriffs in omitting places which had formerly returned members. New boroughs, however, either on account of their growing importance or to increase the authority of the Crown in the Lower House, were from time to time summoned to return representatives, and at the accession of Henry VIII. we find 1 1 1 cities and boroughs (all of which retained their privilege down to the Reform Act of 1832) represented in Parliament by 224 citizens and burgesses. In this reign the number of members was considerably increased by the addition of representatives for Wales, 3 and the Tudor sovereigns systematically pursued the policy of creating insignificant boroughs — many of them mere villages — for the express purpose of corruptly supporting the influence of the Crown in the House of Commons. 1 Between the reigns of Henry VIII. and Charles II. no less than 180 members were added to the House by royal charter alone. 5 Under the last 1 May, Const. Hist. i. 291-299; supra, p. 213. 2 Supra, pp. 229, 237. » Supra, pp. 354, 355. 4 Supra, p. 336. 5 In the reign of James I. the Commons, out of favour to popular rights, xvi.] since the Revolution. 673 two Stewarts, the total number of members averaged .about 500. The Act of Union with Scotland (6 Anne, c. 7) added 45 representatives of that kingdom ; and the Act of Union with Ireland in i§oo (39 & 40 Geo. III. c. 67) made a further addition to the House of 100 Irish members. Since then the number of members has re- mained nearly the same, fluctuating around the figure 650, with a slight tendency to increase, in consequence of the extension of the suffrage and the formation of new classes of constituencies, such as the Universities. 1 For some time after its establishment the representa- Defects of the , , . . , , , , • 1 r . • ' representative tive system, though never aiming at theoretical perfection S y Ste m. had been practically efficient. The knights of the shire and the burgesses who sat in the Parliaments of the 1 3th and 14th centuriesreally did represent the wishes of the great majority of the free inhabitants of the counties and boroughs by whom they were elected. But from the end of the 14th century to the passing of the Reform Act, early in the second quarter of the 19th, the House of Commons, as it gained in numbers, lost more and more in real representative character. ' The changes in the distribution of seats, which were called for by the natural shiftings of population and wealth since the days of Edward I., had been recognized as early as the Civil Wars ; but the reforms of the Long Parliament were cancelled at the Restoration. 2 From the time of resolved that every town which had at any time returned members to Par- liament was entitled to a writ as a matter of course ; and by virtue of this resolution fifteen boroughs regained the Parliamentary franchise under Tames and Charles I. In 1673 the county palatine and city of Durham were for the first time admitted to the franchise by Act 25 Car. II. c. 9 ; and about the same time a royal charter was granted to Newark, enabling it to return two burgesses to Parliament. This is the latest instance of a borough created by royal charter. 1 Hallam, Const. Hist. 111. 36 ; May, Const. Hist. 1. 329 ; Martin, Statesman's Year-Book. 2 In 1653, Cromwell disfranchised many small boroughs, increased the number of county members, and enfranchised Manchester, Leeds, and Halifax a testimony at once to his statesmanship and to the anomalies of a representation which were not corrected for nearly 200 years. May, Const. Hist. i. 329. 674 Progress of the Constitution [Ch. Charles II. to that of George III. not a single effort had been made to meet the growing abuses of our Par- liamentary system. Great towns like Manchester or Birmingham remained without a member, while members still sat for boroughs which, like Old Sarum, had actually vanished from the face of the earth. The effort of the Tudor sovereigns to establish a Court party in the House by the profuse creation of boroughs, most of which were villages then in the hands of the Crown, had ended in the appropriation of these seats by the neigh- bouring landowners, who bought and sold them as they sold their own estates. Even in towns which had a real claim to representation, the narrowing of municipal privileges ever since the 14th century to a small part of the inhabitants, 1 and in many cases the restric- tion of electoral rights to the members of the governing corporation, rendered their representation a mere name. The choice of such places hung simply on the purse or influence of politicians. Some were ' the King's boroughs,' others obediently returned nominees of the Ministry of the day, others were ' close boroughs,' in the hands of jobbers like the Duke of Newcastle, who at one time returned a third of all the borough members in the House. The counties and the great commercial towns could alone be said to exercise any real right of suffrage, though the enormous expense of contesting such con- stituencies practically left their representation in the hands of the great local families. But even in the counties the suffrage was ridiculously limited and un- equal. Out of a population, in fact, of 8,000,000 of English people, only 160,000 were electors at all. How far such a House was from really representing English opinion we see from the fact that, in the height of his po- pularity, Pitt could hardly find a seat in it. When he did find one, it was at the hands of a great borough-jobber, 1 Supra, p. 317. xvi.j since the Revolution. 675 Lord Clive. Purchase was the real means of entering Parliament. Seats were bought and sold in the open market at a price which rose to ^4000, and we can hardly wonder that the younger Pitt cried indignantly at a later time, 'This House is not the Under George representative of the People of Great Britain ; it is o^tomi^T the representative of nominal boroughs, of fuined and had ceased to exterminated towns, of noble families, of wealthy indi- people? viduals, of foreign potentates.' The meanest motives naturally told on a body returned by such constituencies, cut off from the influence of public opinion by the secrecy of Parliamentary proceedings, and yet invested with almost boundless authority. 'Newcastle had made bribery and borough-jobbing the base of the power of the Whigs. George III. seized it, in his turn, as the base of the power he proposed to give to the Crowji. The royal revenue was employed to buy seats and to buy votes. Day by day George himself scrutinized the voting-list of the two Houses, and distributed rewards. and punishments as members voted according to his will or no. Promotion in the civil service, preferment in the Church, rank in the army, was reserved for ' the King's friends.' Pensions and court places were used to influence debates. Under Bute's ministry an office was opened at the Treasury for the bribery of members, and ^25,000 are said to have been spent in a single day.' 1 The glaring defects of the representative system, — the Parliamentary decayed and rotten boroughs the private property of ^tedbfLord noblemen, the close corporations openly selling the seats Chatham in at their disposal to members who in turn sold their own Parliamentary votes, and the existence of great manufac- turing cities distinguished by their wealth, industry, and intelligence, and yet possessing no right of sending repre- sentatives to Parliament — led Lord Chatham as early as 1 J. R. Green, History of the English People, p. 743 ; and see May, Const. Hist. i. 327"3 8 9- x x 2 676 Progress of the Constitution [Ch. 1766 to advocate Parliamentary reform. ' Before the end of this century,' he said,' either the Parliament will reform itself from within, or be reformed with a vengeance from without.' He denounced the borough representation as ' the rotten part of our constitution. If it does not drop, Wilkes' scheme it must be amputated.' 1 Ten years later, in 1776, the no- ' ' torious John Wilkes introduced a comprehensive scheme of reform in a bill proposing to give additional members to the Metropolis and to Middlesex, Yorkshire, and other large counties; to disfranchise the rotten boroughs and add the electors to the county constituency; and lastly, to enfranchise Manchester, Leeds, Sheffield, Bir- mingham, and ' other rich populous trading towns.' ' His scheme, indeed,' says Sir Erskine May, ' comprised all the leading principles of Parliamentary reform which were advocated for the next fifty years without success, and have been sanctioned within our own time.' 3 After further abortive attempts at reform, by the Duke of Richmond and others, the subject was taken up by the Mr. Pitt's advo- younger Pitt in 1782 and 1783. In 1785 he moved for j»g^° g 5 e orm ' leave to introduce a bill ' to amend the representation of the people of England in Parliament' ; but George III. being adverse to it, the House of Commons indifferent, and the public generally apathetic, his motion was nega- tived by a majority of 74. The matter was now allowed to drop, and the terror caused by the outbreak of the French Revolution some years later rendered all efforts at reform fruitless. The question After the conclusion of the war in 1815 the question the'pl aft( f °f re f° rm was revived. Thenceforward it was again 1815. and again brought before Parliament, by Sir Francis Burdett, Lord John Russell, and others, until at length, under the Whig ministry of Lord Grey (who had advo- cated the cause of reform for forty years), the Reform 1 Debates on the Address, Jan. 1766 ; Pari. Hist. xvii. 223. 8 May, Const. Hist. i. 394. XVI -] since the Revolution. 677 Bill — after defeats in both Houses of Parliament, a dis- Passing of the solution, the resignation and recall of the ministry, and a 0/1832. threatened creation of peers by the king — was passed amidst the greatest popular excitement, and became an Act on the 7th of June, 1832. By this statute — 'the Great Charter of 1832/ as it its principal has been called — 56 nomination or rotten boroughs, with pr °" "''"'"" less than 2000 inhabitants, and returning 1 1 1 members, were swept away. Thirty boroughs, having less than 4000 inhabitants, lost each a member, and two more were taken from Weymouth and Melcombe Regis. In this way 143 seats were obtained for distribution among the towns and counties requiring additional representa- tion. Forty-three new boroughs were created, 22 of which, including metropolitan districts, received the pri- vilege of returning two members, and 21 one member each. The number of county members for England and Wales was increased from 95 to 159, the larger counties being divided, and a third member being assigned to other important county constituencies. All narrow rights of election were set aside in boroughs, and a £ 10 house- holder qualification (subject to conditions as to residence and payment of rates) was established instead, while the county franchise was extended by the addition to the old forty-shilling freeholders of copyholders and lease- holders for terms of years and of tenants-at-will paying a rent of £50 a year. 1 In the same session Reform Acts were passed for Scotch Reform Scotland and Ireland. The number of Scotch represen- c ' l 32- ' tatives, fixed by the Act of Union at 45, was increased to S3, of whom 30 were assigned to counties and 23 to cities and burghs. The county franchise was extended to all owners of property of £10 a year and to certain classes of leaseholders, and the burgh franchise to all- £10 householders. 3 1 2 & 3 Will. IV. c. 45. 2 2 & 3 Will. IV. t . 65. 678 Progress of the Constitution [Ch. Irish Reform Act, 1832. The Reform Act of 1867. Suppression of bribery and in- timidation at elections. The Ballot Act, 1872. In Ireland several rotten boroughs had been disfran- chised at the time of the Union. The right of election was now taken away from borough corporations and vested in ^10 householders; and large additions were made to the county constituencies. The number of Irish representatives, fixed by the Act of Union at 100, was increased to 105. 1 By the Reform Act of 1 867 — passed by Lord Derby's Conservative ministry with the aid of the Liberal ma- jority in the House of Commons — a further extension of the electoral franchise was introduced scarcely less im- portant than that conceded by the Reform Acts of 1832. The borough franchise was extended to all house- holders (subject to one year's residence and payment of poor's rates) as well as to lodgers occupying lodgings of the annual value of £\o? The county occupation franchise was reduced to £ 1 2 ; and 33 seats were with- drawn from English boroughs, 25 of which were trans- ferred to English counties, and the remaining 8 to Scot- land and Ireland. 3 Since the Reform Act of 1832 the attention of Parlia- ment has been continually directed to the suppression of bribery and intimidation at elections. The measures for this purpose culminated in 1872 in the passing of an experimental Ballot Act (to continue in force till the 31st December, 1880), by which the open nomination of candidates on the hustings was abolished, and voting by secret ballot at both Parliamentary and municipal elec- 1 2 & 3 Will. IV. c. 88. In 1850 the Irish borough franchise was extended to householders rated at £8, and the qualifications required for the county franchise were also lowered. 13 & 14 Vict. c. 69. 2 Supra, p. 319. 3 30 & 31 Vict. c. 102. In the following year Reform Acts were passed for Scotland and Ireland, similar to the English Act in principle, but differing from it in many of their details. 31 & 32 Vict. t. 48; 31 & 32 Vict. t . 49. The increase in the constituencies since the passing of the Reform Acts of 1867-8, is shown in the following tabular statement, which srivpstlip tntnl XVI], since the Revolution. 679 tions was substituted for the old English system of open voting. 1 The duration and intermission of Parliament have Summons, dura- been the subject of important legislative enactments in m°"sion oTpar- the period since the Revolution. By the ancient legal lament. doctrine of the constitution, Parliament can only be sum- moned by the king's writ ; when summoned its duration was formerly limited by the king's pleasure alone ; and on the death of the king who summoned it, it was held to be ipso facto dissolved. By a logical deduction of constitutional lawyers, it was held that the Parliament which deposed Richard II. in 1399 ceased to exist when The Parliament Richard ceased to be king ; but as it was not convenient ° I399 ' for Henry IV. to summon a new Parliament, an expe- dient was devised by which, under a transparent legal number of electors, in boroughs and counties of the United Kingdom, in , 1868 and in 1874 :— Electors of the United Kingdom. 1868. 1874. Increase. Boroughs . 602,088 1,647,596 1,045,508 Counties . 768,705 1,078,180 3°9.475 Total i,37o.793 2,725,776 1,354.983 In the session of 1874, the House of Commons consisted of 652 members, returned as follows by the three divisions of the United Kingdom : — England and Wales. Members. 52 Counties and Isle of Wight . . .187 200 Cities and Boroughs 295 3 Universities ....... 5 Total of England and Wales . . 487 Scotland. 33 Counties ....•■• 3 2 22 Cities and Burgh Districts . . . . 26 4 Universities z Total of Scotland . . . . 60 Ireland. 32 Counties 64 33 Cities and Boroughs 39 1 University 2 Total of Ireland .... 105 Total of United Kingdom . 652 See Martin's Statesman's Year-Book for 1875. 1 ,,- & 2,6 Vict. c. 33. The Universities were excepted. 68o Progress of the Constitution [Ch. Convention Parliament of 1660. Convention Parliament of 1688. Triennial Act, 1641. fiction, the same members who had deposed Richard were assembled again in Parliament under Henry's writs. Nearly three centuries later the Convention Par- liament which restored Charles II. was looked on as of doubtful validity because not summoned by the king's writ. The Convention acted indeed as a Parliament, and even passed an Act declaring itself to be ' the two Houses of Parliament, notwithstanding the want of the king's writ of summons, and as if his Majesty had been present in person at the commencement thereof:' 1 but it was deemed needful, or at all events prudent, that all its Acts should be confirmed by the succeeding Parliament summoned in due form. At the Revolution of 1688 legal subtleties, though still potent, were treated with greater boldness and common sense. The Convention Parliament which deposed James II. 3 and elected William and Mary, passed an Act indeed, like the Convention of 1660, declaring itself to be a legal Par- liament, notwithstanding any defect of form in its summons or otherwise ; 3 but it was no longer thought necessary that its Acts should be confirmed by another Parliament.' 1 ' We have seen how the king's prerogative of calling Parliament had been limited under Edward II. and Edward III. by statutes requiring annual sessions, and under Charles I. by the Triennial Act. 5 After the Resto- ration this Act was repealed, in 1664, by the ' Pensionary Parliament' (which was prolonged for nearly eighteen years), but it was at the same time provided by the re- 1 12 Car. 11. c. 1. 3 1 Will, and Mary, sess. I, c. I. 2 Supra, pp. 206, 617, 619. 'Each of these differences [in the proceedings of 1399, 1660, and 1688] marks a stage in the return to the common- sense doctrine, that, convenient as it is in all ordinary times that Parliament should be sum- moned by the writ of the sovereign, yet it is not from that summons, but from the choice of the people, that Parliament derives its real being, and its inherent powers.' Freeman, Growth of Eng. Const, p. 131. 6 Supra, pp. 244, 246, 549. XVl -] since the Revolution. 68 1 pealing statute 'that Parliament should not be interrupted above three years at the most, 1 and the Bill of Rights declared that ' Parliament ought to be held frequently.' 2 By the Triennial Act of William and Mary, in i6g4,it was Triennial Act, provided that a new Parliament should be called within l694> three years after the dissolution of a former one, and the utmost extent of time that any Parliament should be al- lowed to sit was limited to three years. 3 The Septennial Se P ten nial Act, Act of- George I. in 1715 extended the period of dura- tion to seven years. 4 From the reign of George II. down to 1849 various attempts have been made from time to time to repeal the Septennial Act and shorten the dura- tion of Parliaments, but more recently the popularity of this question has sensibly declined, 'not so much on account of any theoretical preference for septennial Par- liaments, as from a conviction that the House of Com- mons has become accountable to the people, and prompt in responding to their reasonable desires.' 5 The rule that Parliament was ipso facto dissolved by Abrogation of the death of the sovereign was abrogated in Queen p ar Hament was Anne's reign by an enactment that the Parliament in dissolved by , ■ r 1 r 1 ^ , ,i death of the being at the time of a demise of the Crown should con- sovereign. tinue for six months afterwards, unless specially pro- rogued or dissolved by the new sovereign. 6 A statute of George III.'s reign further provides, that if the sove- reign should die in the interval between the dissolution of one Parliament and the meeting of a new one, the 1 16 Car. II. c. I. 2 Supra, p. 624. 3 6 Will, and Mary, c. 2. " I Geo. I. c. 38. 6 May, Const. Hist. i. 444. It is found that in practice no Parliament is permitted to continue longer than six years ; and that frequent dis- solutions have reduced Parliaments, at several periods, to an average duration of three or four years. Sir Samuel Romilly stated, in 1818, that out of eleven Parliaments of George III., eight had lasted six years. But from the accession of William IV. in 1830 to the year i860, there were no less than ten Parliaments, showing an average duration of three years only. — Ibid. 6 7 & 8 Will. HI. c. 15 ; 6 Anne, c. 7. 682 Progress of the Constitution. [Ch. Privilege of Parliament since the Revolution. Sometimes wielded by the Executive for the oppression of popular liberty. Expulsion of Sir Richard Steele, 1 7 14. Proceedings against Wilkes, 1763. last preceding Parliament shall ipso facto revive and con- tinue in being, unless again dissolved, for six months. 1 The six months' limit imposed by the Act of Anne .was abolished by a clause in the Reform Act of 1867, so that now the continuance of a Parliament in being at a demise of the Crown is in no way affected by that event. 3 Prior to the Revolution, privilege of Parliament had been nearly always asserted on behalf of ' popular rights and liberties against the arbitrary authority of the Crown. The Revolution established the supremacy of Parlia- ment in the government of the country; but by the time that the House of Commons had become all-powerful in the State it was ceasing, as we have seen, to be a real and effective representative of the Commons of England. Corrupt in itself, and the offspring of narrow and corrupt constituencies, its necessary power of inflicting punishment for breach of privilege was placed at the disposal of the Executive for the oppression of popular liberty. In 17 14, Sir Richard Steele was expelled the House for writing The Crisis, a pamphlet reflecting on the mi- nistry of the day. In their proceedings against Wilkes in 1763 and following years, the Commons first withdrew the shield of privilege in order to justify a judicial deci- sion contrary to law and usage, and then, not content with expelling the obnoxious member, proceeded ille- gally to deprive the electors of Middlesex of their free choice of a representative. Wilkes had been imprisoned on a 'general warrant' from the Secretary of State, in consequence of the publication of the celebrated No. 45 of the North Briton. Released on a writ of habeas corpus, on the ground of his privilege as a member of the House of Commons, the Lower House, eager to second the 1 37 Geo. III. c. 127. 2 30 & 31 Vict. c. 102, s. 51. 3 x vi.] since the Revolution. 68 vengeance of the king, voted the publication, while still the subject of a prosecution in the King's Bench (which Wilkes declared himself ready to meet notwithstanding his privilege), ' a false, scandalous, and malicious libel,' and resolved ' that privilege of Parliament does not extend to the case of writing and publishing seditious libels.' Wilkes was expelled the House, and withdrew He is expelled to France, an exile and an outlaw. Returned for Mid- the House ' dlesex in 1768, he was again expelled ; and on his im- mediate re-election, the House not only expelled him a third time, but resolved that his expulsion rendered him incapable of being elected a member to Parliament. Again re-elected by the county of Middlesex, the House Declared in- declared his return to be null and void, and adjudged the diction, °i 768. seat to Colonel Luttrell, the second candidate, who had received only 296 votes against 1143 recorded for Wilkes. A profligate demagogue was thus turned into a popular hero and a champion of constitutional freedom. After the lapse of five years Parliament was dissolved, and to the new Parliament, in 1774, Wilkes was again returned for Middlesex. The former intemperate proceedings respecting the Middlesex election, which Lord Camden said had ' given the constitution a more dangerous wound than any which were given during the twelve years' absence of Parliament in the reign of Charles I.,' were at length, in 1782, expunged from the journals of J x he u dec l ai f ation the Commons, as being subversive of the rights of the the Journal of Whole body Of electors in the kingdom. 1 the Commons, 1 The right of the Commons to expel a member is undoubted : but since Expulsion and the reversal in 1782 of the proceedings against Wilkes, it has been equally disqualification undoubted that expulsion, though it vacates the seat of the expelled mem- f members. ber, does not create any disability to serve again in Parliament. In fact, the Commons have no control over the eligibility of candidates, except in the administration of the laws which define their qualification, for one House of Parliament cannot create a disability unknown to the law. (May, Pari. Practice, p. 60, 7th ed.) The question of the disability Disability aris- arising from- conviction of treason or felony has been the subject of dis- ingfrom convic- cussion in the Commons on two or three recent occasions. By the common tion of treason or law a person attainted of treason or felony was incapable of being elected a felony. member of Parliament (Coke, 4th Inst. 47). But a doubt was at one time 684 Progress of the Constitution [Ch. Abuse of the privilege of com- mitment. Commitment of the printer Mist, 1721. In the exercise of its power of commitment the House of Commons, on more than one occasion since the Revo- lution, has been carried by passion beyond the reasonable and customary limits of privilege. In 1721 a printer named Mist was committed to Newgate by the House for printing a Jacobite newspaper which the Commons resolved to be 'a false, malicious, scandalous, in- famous, and traitorous libel.' As the offence of Mist could not possibly be interpreted as a contempt of the House, or a breach of its privileges, this proceeding of the Commons was quite as unjustifiable, if not quite so Smith O'Brien, 1849. & Donovan J?ossa, 1870. Act 33 & 34 Vict., c. 23 (-1870;. John Mitchell 1875- entertained whether a person who was not attainted for treason or felony, but was merely convicted, was disqualified. In 1849, a resolution was brought before the House of Commons that Mr. Smith O'Brien, M.P., having been convicted of treason, was ineligible to sit in the House. It was proposed as an amendment that the resolution should run that he was attainted, but the amendment was rejected, and the resolution carried was, that having been adjudged guilty of treason, he was ineligible to sit in the House. The next case was that of O'Donovan Rossa, in 1870, who was re- turned for Tipperary while undergoing sentence of penal servitude for treason- felony. As he had been convicted and sentenced under the Treason-felony Act 11 & 12 Vict. u. 12 {supra, p. 362) it was contended that, not being attainted, there was no disqualification ; but the House again rejected the contention, and resolved " that Rossa ' having been adjudged guilty of felony, and sentenced to penal servitude for life, and being now imprisoned under such sentence, has become, and continues, incapable of being elected or returned as a member of this House. ' In order however to obviate any doubts as to the legality of this determination, a provision was inserted in the Act which abolished forfeiture and attainder for treason or felony (33 & 34 Vict. c. 23 passed in the same' year, 1870) that any person thereafter convicted of those offences should be incapable, while undergoing punish- ment, of being elected a member of, or of sitting or voting in, Parliament, or of exercising any parliamentary or municipal franchise. The proceedings in Rossa's case also established that the House, notwithstanding the Act of 1868 (31 & 32 Vict. c. 125. supra, p. 312), reserved in its own hands the power to decide on the eligibility of members. The next and latest case is that of Mr. John Mitchell. In 1848 he was tried for treason- felony, found guilty, and sentenced to 14 years' transportation. After a comparatively short period he escaped from his imprisonment, and after remaining abroad for many years, returned to Ireland in 1874, without having suffered his sentence or received a pardon. In February of the present year 1875, he was returned unopposed for Tipperary. On the 18th of February, on the motion of the Premier, Mr. Disraeli, and notwithstanding the expression of several doubts as to the legality of the course proposed to be adopted, the House resolved ' That John Mitchell, returned as member for the County of Tipperary, having been adjudged guilty of felony and sentenced to trans- portation for 14 years, and not having endured the punishment to which he was adjudged for such felony, or received apardon under the Great Seal, has become, and continues, incapable of being elected or returned as a member of this House.' xvi.] since the Revolution. 685 violent, as their treatment of Floyd in the reign of James I. 1 The more recent practice of the House^ of Commons has been to avoid such excesses of jurisdiction by directing a prosecution by the Attorney-General for offences of a public nature which have been brought to their notice. The right of the Commons to commit for breach of pri- Case of Mr. vilege was distinctly recognized by the judges in the two ^^ urray ' celebrated cases of Mr. Alexander Murray in 175 1, and Sir Francis Burdett in 18 10. In the course of an inquiry before the House into a contested Westminster election, the high-bailiff complained of Mr. Murray (who had been actively engaged in the election against the ministerial candidate) for insulting him in the discharge of his duty. The Commons decided to hear the parties by counsel, and after ordering Murray to give bail for his appearance from time to time, finally resolved that he should be committed to Newgate, and should receive this sentence on his knees. This humiliating command he steadily refused to obey, and the Commons were obliged to con- tent themselves with ordering that no person should be admitted to him in Newgate, a severity which, on account of his ill-health, was soon afterwards relaxed. 3 On suing out his writ of habeas corpus in the King's Bench, the judges unanimously refused to discharge him, on the ground of their want of jurisdiction to judge of the privileges of the House of Commons or of contempts against them. 3 As the authority of the House to commit extends only to the duration of the session of Parliament, Murray soon obtained his liberty, amidst the plaudits of the people, who regarded him as a martyr in the cause 1 Supra, p. 49 6 - , „ . „. . * By a standing order of the Commons, in I 772, the offensive custom of requiring prisoners to kneel at the bar of the House was renounced. The Lords though silently discontinuing the practice, still affect to maintain it, in cases of privilege, by continuing the accustomed entries in their journals. —May, Const. Hist. ii. 75- . ... » State Trials, vin. 30. Hallam, Const. Hist. 111. 283. 686 Progress of the Constitution [Ch. Case of Sir Francis Burdett 1810. Publication of Debates. of popular freedom ; but in the following session he was again committed on the same charge. In 1 8 10, the Commons having committed to Newgate the publisher of an offensive placard announcing for discussion in a debating society the conduct of two Members of Parliament, Sir Francis Burdett denied the authority of the Commons in his place in Parlia- ment, and enforced his denial in a published address to his constituents. He was himself adjudged by the House guilty of contempt, and committed to the Tower by the warrant of the Speaker, but not'until the aid of the military had been called in to overcome his forcible resistance. He then brought actions for redress against the Speaker and the serjeant-at-arms, but the Court of King's Bench, and, on appeal, the Exchequer Chamber and the House of Lords, successively upheld the authority of the House. 1 Of all the privileges of Parliament, the one which has •undergone the greatest modification, and of which the practical abandonment has produced the most mo- mentous political results, is that which concerns the secrecy of its proceedings. The Long Parliament, in 1641, permitted the publi- cation of its proceedings in the 'Diurnal Occurrences of Parliament,' but prohibited the printing of speeches without leave of the House. For printing a collection of his speeches, without such leave, Sir E. Dering was expelled the- House and imprisoned in the Tower, and his book was ordered to be burned by the common hangman. 3 The prohibition was continued after the Restoration ; but in 1680, to prevent inaccurate accounts of the business done, the Commons directed their ' votes and proceedings,', without any reference to the debates, to be printed under the direction of the Speaker. 3 De- 1 May, Const. Hist. ii. 76. 2 Cora. Journ. ii. 411 (Feb. 2, 1641.) 3 Com. Journ. ix. 74. xvi.] since the Revolution. 687 bates were also frequently published anonymously in news-letters and pamphlets. After the Revolution fre- quent resolutions were passed by both Houses, from 1694 to 1698, to restrain 'news-letter writers' from 'inter- meddling with their debates or other proceedings,' or ' giving any account or minute of the debates.' But not- withstanding these resolutions, and the punishment of offenders, privilege was unable to prevail against the craving for political news natural to a free country ; and from the accession of the House of Hanover imperfect reports of the more important discussions began to be published in Boyer's ' Political State of Great Britain,' the 'London Magazine,' and the 'Gentleman's Magazine,' under the title of the ' Senate of Great Lilliput,' or the ' Political Club,' and with either simple initials, or feigned names for the speakers. The difficulties of re- porting when notes had to be taken by stealth and the memory was mainly trusted to, naturally led to serious inaccuracies, which were often aggravated by intentional misrepresentation. Dr. Johnson, who wrote the Parlia- mentary reports in the. 'Gentleman's Magazine' from November, 1740, to February, 1743, is said to have confessed that 'he took care that the Whig dogs should not have the best of it,' and later reporters too often indulged in offensive and scurrilous nick- names. 1 In 177 1 notes of the speeches were published in Contest with several journals, accompanied, for the first time, with the ijp™ names of the speakers ; and Col. George Onslow, who had been provoked by the opprobrious terms' applied to him by some of the reporters, precipitated a con- flict between the House and the press by making a formal complaint of several journals 'as misrepresenting the speeches and reflecting on several of the members of 1 May, Const. Hist. ii. 37. 688 Progress of the Constitution [Ch. this House.' Six printers were in consequence ordered to attend the bar of the House. One of them, who failed to appear, was arrested by its messenger, but instead of submitting, sent for a constable and gave the messenger into custody for an assault and false imprisonment. and with the They were both taken before the Lord Mayor (Mr. Brass aldemS' 3 ^ Crosby), Mr. Alderman Oliver, and Mr. Alderman London. Wilkes, who, on the ground that the messenger was neither a peace-officer nor a constable, and that his warrant was not backed by a city magistrate, discharged the printer from custody, and committed the messenger to prison for an unlawful arrest. Two other printers, for whose apprehension a reward had been offered by a Government proclamation, were collusively apprehended by friends, and taken before Aldermen Wilkes and Oliver, who discharged the prisoners as ' not being accused of having committed any crime.' These pro- ceedings at once brought the House into conflict with TheLordMayor the Lord Mayor and Aldermen of London. The Lord and^Alderman Mayor and Alderman Oliver, who were both members Oliver com- f Parliament, were ordered by the House to attend in Tower. e their places, and were subsequently committed to the Tower. Their imprisonment, instead of being a punish- ment, was one long-continued popular ovation, and from the date of their release, at the prorogation of Parlia- ment shortly afterwards, the publication of debates has been pursued without any interference or restraint. 1 Reporting still Though still in theory a breach of privilege, reporting a breach of j s now enco'uraged by Parliament as one of the main privilege, sources of its influence — its censure being reserved for wilful misrepresentation only. But reporters long con- tinued beset with many difficulties. The taking of notes was prohibited, no places were reserved for reporters, Exclusion of and the power of a single member of either House to strangers. require the exclusion of strangers was frequently and 1 Pari. Hist. xvii. 90—157 ; May, Const. Hist. ii. 39 — 49. xv ^] since the Revolution. 689 capriciously employed. This power still continues, and was exercised in the House of Commons in 1849, and - also in 1870, 1872, and 1873. After the destruction of the Houses of Parliament by Facilities fire in 1834, separate galleries were assigned for the reporting accommodation of reporters, and in 1845 the presence of strangers in the galleries and other parts of the House not appropriated to members was for the first time officially recognized in the Orders of the House of Com- mons. The daily publication of the . division lists as , part of the proceedings of the House, — which alone was division lists. wanting to complete the publicity of its proceedings and the responsibility of members, — was not adopted by the Commons until 1836, an example which was followed by the Lords in 1857. Previously it had been impossible to ascertain, in the great majority of cases, what mem- bers were present at a division and how they voted, the Houses themselves taking no cognizance of names, but only of numbers. On questions of great public interest, the exertions of individual members usually secured the publication of the names of the minority, and this prac- tice — notwithstanding it was declared by the House of Commons in 1696 to be a breach of privilege 'destruc- tive of the freedom and liberties of Parliament '—was persisted in, and latterly a list of the majority was also similarly published. The official daily publication of the division lists was followed up by the adoption by the Commons, in 1839, and by the Lords in 1852, of the practice of publishing the names of members serving on select committees with the questions addressed by them to witnesses ; and a few years previously, in 1835, Publication of the Commons admitted the public into ' community of repoXand" 7 knowledge as well as community of discussion ' by P a P ers - directing all Parliamentary reports and papers to be freely sold at a cheap rate. ' The entire people,' observes Sir Erskine May, ' are political results now present, as it were, and assist in the deliberations of of reporting. 690 Progress of the Constitution [Ch. Conflict between the Commons and the Courts of Law as to publication of papers affecting character. Stockdale v. Hansard. Parliament. An orator addresses not only the assembly of which he is a member ; but, through them, the civi- lized world. His influence and his responsibilities are alike extended. Publicity has become one of the most important instruments of parliamentary government. The people are taken into counsel by Parliament, and concur in approving or condemning the laws, which are there proposed ; and thus the doctrine of Hooker is verified to the very letter : ' Laws they are not, which public approbation hath not made so.' x The revolution which has taken place since the 18th century in the relations between the House of Commons and the people, is forcibly brought out by the conflict which occurred in 1836 between the House and the Courts of Law consequent upon the publication of the parliamentary reports and proceedings. In 177 1 we have seen the Commons in conflict with the magistrates of London to uphold the privilege of the inviolable secrecy of the proceedings of the House; in 1836 the object of their contention with the courts of justice was the privilege of publishing all their own papers for the information of the nation. Certain reports of the Inspec- tors of Prisons, printed by Messrs. Hansard in obedience to the orders of the House of Commons, contained severe animadversions on a book written by a Mr. Stockdale, who thereupon brought an action for libel against the printers. It having been proved that the book was of an indecent character, a verdict was given for the defendants on a plea of justification ; but Lord Chief Justice Denman, before whom the cause was tried, ob- served incidentally that ' the fact of the House of Com- mons having directed Messrs. Hansard to publish all their parliamentary reports, was no justification for them, or for any bookseller who publishes- a parliamentary report containing a libel against any man.' This denial of par- 1 May, Const. Hist. ii. 53. XVI -]. since the Revolution. 691 liamentary privilege was met by a declaration of the Commons that the power of publishing their proceedings and reports was ' an essential incident of the constitu- tional functions of Parliament/ and that any person insti- tuting a suit as to, or any court deciding on, a matter of privilege contrary to the determination of either House, would be guilty of a breach of privilege. Stockdale at once proceeded to bring other actions, and on the issue whether the printers were justified by the privilege and order of the House, the Court of Queen's Bench unani- mously decided against them. 1 The sheriffs levied the amount of damages, and the House vindicated its privi- leges by committing Stockdale and his attorney Howard, and also the sheriffs. 2 While in prison Stockdale re- peated his offence by bringing other actions, for which his attorney's son and clerk were committed ; and the dead- lock was at length only removed by the passing of an Act of Parliament providing that all such actions should Right of Pariia- be stayed on the production of a certificate or affidavit Stablidied by ^ that the paper complained of had been published by the Act 3 & 4 Vict. order of either House of Parliament. 3 The right of a news- paper to publish a fair and faithful report of the debates and proceedings in Parliament without any authorization from either House, was determined in 1 868 by the deci- sion of the Court of Queen's Bench, in Wason v. Walter, Wasonv. that no action for libel would lie against the proprietor Walter, 1868. of the ' Times ' for so doing. 4 IV. Protestant Nonconformity, fostered instead of <££) Toleration 1 Stockdale v. Hansard, 9 Ad. & E. I ; Broom, Const. Law, 870-957. 2 Case of the Sheriff of Middlesex, 11 Ad. & E. 273 ; Broom, Const. Law, 960. 3 3 & 4 Vict. c. 9 ; Broom, Const. Law, 964. Subsequently Stock- dale's Attorney, Howard, brought two actions against the officers of the House, which, on the grounds of excess of authority and informality in the Speaker's warrant were given in the plaintiff's favour. But on a writ of error the judgment in the second action was reversed by the Court of Exchequer Chamber. Howard v. Gssset, 10 Q. B. 359 ; Broom, Const. Law, 969. 4 Wason v. Walter, 8 Best & Smith, 671. y y 2 692 Progress of the Constitution [Ch. Religious Liberty. Toleration Act, 1 Will, and Mar. c. 18. Toleration only partially established. being crushed by the very efforts of the Church to enforce unity, had gained considerably in numbers, organization, and political weight, during the reigns of the last two Stewarts ; and the important services of the Dissenters in combining with the Church to bring about the Revo- lution of 1688, were rewarded by the Toleration Act. This famous statute was far indeed from granting reli- gious freedom ; it repealed none of the Acts by which conformity with the Church of England was exacted, and left the civil disabilities of nonconformists intact ; but it recognized, for the first time, the right of public worship beyond the pale of the State Church, by ex- empting from the penalties of existing statutes against separate conventicles and absence from church, all persons who should take fche oaths of allegiance and supremacy, and subscribe a declaration against transubstantiation. Dissenting ministers were relieved from the restrictions imposed by the Act of Uniformity and the Conventicle Act upon the administration of the sacrament and preaching in meetings, 1 on condition that, in addition to taking the oaths, they signed the 39 Articles, with the exception of three and part of a fourth. 3 Quakers were allowed to make an affirmation in lieu of taking the oaths. All meeting-houses were required to be regis- tered, but when registered their congregations were protected from molestation. 3 The principle of religious toleration was as yet, how- ever, but imperfectly established. Roman Catholics and Unitarians were specially excepted from the Act, and were soon afterwards subjected to additional penal- ties. Unitarians were disabled from holding any office ecclesiastical, civil or military:* and Roman Catholics 1 Supra, pp. 599, 600. 2 The articles excepted (as expressing the distinctive doctrines of the Church) were Nos. 34, 35, 36, and part of No. 20. 3 1 Will. & Mar. c- 18, confirmed by 10 Anne, c. 2. 4 9 Will. III. c. 35. XVL 1 since the Revolution. 693 were placed under mostsevere restrictions. 1 In 1700 an Act was passed offering a reward of £100 for the discovery of any Roman Catholic priest exercising the functions of his office and subjecting him to perpetual imprisonment. By the same Act every Roman Catholic was declared incapable of inheriting or purchasing land, unless he abjured his religion upon oath, and on his refusal, his property was vested, during his life, in his next of kin, being a Protestant. He was also prohibited from sending his children abroad to be educated. 3 During the four last Temporary years of Queen Anne's reign serious inroads upon the Anne? n toleration formerly granted to Protestant Nonconform- Acts against ists were made by two Acts, the one passed in 17 11, to ^Xmify and prevent occasional conformity, 8 and the other in 171 3, for the growth of preventing the growth of schism. 4 These reactionary and 1 ^'^. statutes were repealed, however, in the following reign, 5 and from the beginning of the reign of George II. civil offices were practically thrown open to Protestant Dis- senters, by means of the Annual Indemnity Acts passed Annual Indem- in favour of those who had failed to qualify themselves g^lT" 161 under the Corporation and Test Acts. The severe laws against the Roman Catholics, although enforced by a proclamation of Queen Anne in 171 1, by a further Act of Parliament after the Rebellion of 1715/ and by an- other royal proclamation after the rebellion of 1745, were also greatly mitigated in practice, It was not, however, till the reign of George III., when Relaxation of the Jacobitism of the Roman Catholics had become code unde? ° US lukewarm and innocuous, and the preaching of Wesley George III. and Whitefield had stimulated and revived the dissent- ing sects, that the gradual relaxation of the penal reli- gious code was commenced in earnest. Early in this 1 1 Will. & Mar. st. 2, c. I. 2 ii & 12 Will. III. c. 4; 13 Will. III. c. 6. 3 io Anne, c. 2. 4 12 Anne, c. 7. 6 5 Geo. I. c. 4. 6 1 Geo. I. c. 55. 694 Progress of the Constitution [Ch. Principle of reign the broad principles of toleration were judicially Toleration J- , T , . , fl , „ upheld by House affirmed by the House of Lords, in the case 01 the Cor- ofLor AV nthe poration of London and the Dissenters. 'It is now no case of the r Corporation of crime,' said Lord Mansfield in moving the judgment of Dis"enters"i767. ^ e House, ' for a man to say he is a dissenter ; nor is it any crime for him not to take the sacrament according to the rites of the Church of England ; nay, the crime is if he does it contrary to the dictates of his conscience.' 'The Toleration Act renders that which was illegal before, now legal ; the dissenters' way of worship is permitted and allowed by this Act. It is not only ex- empted from punishment, but rendered innocent and lawful ; it is established : it is put under the protection, and is not merely under the connivance, of the law.' ' There is nothing certainly,' he added, ' more unreason- able, more inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and unjust, more impolitic, than persecution. It is against natural religion, revealed religion, and sound policy.' 1 Despite the repugnance and opposition to Catholic emancipation of George III., the ignorant bigotry. of the masses which culminated in the Gordon riots of 1780, and the generally unsettled temper of Parliament and the country as to the doctrines of religious liberty, the penal code, as regards both Roman Catholics and Protestant Dissenters, was gradually, though unsystematically, re- Repeal of Test l axe d- At length in 1828, towards the close of George md Corporation I V.'s reign, the civil disabilities of Dissenters were swept Apj-g jgoS away by the repeal of the Test and Corporation Acts, and the substitution for the sacramental test previously re- quired by law, as a qualification for civil, military, and corporate offices, of a declaration ' upon the true faith of a Christian' against injuring or disturbing the Established Church. 3 Pari. Hist. xvi. 316 ; May, Const. Hist. iii. 91. 2 9 Geo. IV. c. 17. XVI -3 since the Revolution. 695 The following year, 1829, witnessed the passing of the Catholic Roman Catholic Relief Act. It admitted Roman I™^g lon Catholics, on taking the oath of allegiance with a repu- diation of the doctrine that princes excommunicated by the Pope might be deposed or murdered (instead of the oath of supremacy and declaration against transubstan- tiation and the invocation of saints), to both Houses of Parliament, to all corporate offices, to all judicial offices, (except in the ecclesiastical courts), and to all civil and political offices, except those of Regent, Lord Chancellor in England and Ireland, 1 and Lord Lieutenant of Ire- land. Additional restraints were, however, imposed by the Act upon the interference of Roman Catholics in Church patronage : Jesuits and monks were prohibited from coming into the realm without licence ; and pro- visions were inserted for regulating the residence of such . as were already within the kingdom. 3 In 1832 an Act was passed . providing that Roman Repeal of Catholics in respect of their schools, places of worship, affecting Roman and charities, and of property held therewith, and of Catholic religion persons employed about them, should be subject to the same laws as were applicable to Protestant Dissenters. 3 A few years later the policy of according perfect reli- gious liberty to the Roman Catholics was consummated by the repeal of almost all the enactments against them which (though for the most part obsolete) still remained in the statute book. 4 A few supplementary measures were' still required to Completion complete the civil enfranchisement of Dissenters. In °£? lvl1 e ° f ™ n " 1833, Mr. Pease, the first Quaker who had been elected Dissenters. to the House of Commons for one hundred and forty 1 The Irish Lord Chancellorship has since been thrown open to all persons irrespective of their religious belief. * 10 Geo. IV. c. 7. 3 2 & 3 Will. IV. c. 115. 4 7 & 8 Vict. c. 102, 9 & io Vict, c; 59. 6g6 Progress of the Constitution [Ch. Jewish disabilities. Admission of Jews to Parliament, 1858. Civil registration of births, marriages, and deaths, 1836. Dissenters' Marriage Bill, 1836. Universities Tests Act, 1871. years, was allowed to take his seat on making an affir- mation instead of an oath. In the same year Quakers,- Moravians, and Separatists, were enabled by statute to substitute an affirmation, in all cases, for an oath, 1 The Jews — banished from England under Edward I. and suffered to return by Cromwell — had been occasionally admitted to municipal offices, together with Protestant Nonconformists, under cover of the Annual Indemnity Acts. The declaration 'on the true faith of a Christian/ imposed by the Act 9 Geo. IV. c. 17, while relieving Dissenters from the requirements of the Test and Cor- poration Acts, had forged new fetters for the Jew. These were removed, so far as regards corporations, in 1845; 2 and after a lengthened struggle, the only legal obstacle to the admission of Jews to Parliament was also removed, in 1858, by an Act which empowered either House of Par- liament, by resolution, to omit the words ' upon the true faith of a Christian ' from the oath of abjuration. 8 In 1836 a civil registration of births, marriages, and deaths was established ; and by another Act Dissenters were permitted to solemnize marriages in their own chapels, registered for that purpose. 4 The grievance com- plained of by Dissenters with regard to burials still continues in the country districts of England, mitigated, however, by the practice of some incumbents who allow Dissenting ministers to perform their own burial service in the parish churchyard ; and in populous towns the Dis- senters have generally provided themselves with separate burying grounds and unconsecrated parts of cemeteries. Lastly, in 1871, one of the few remaining disabilities of Dissenters was redressed by the Universities Tests Act 1 3 & 4 Will. IV. cc. 49, 82 ; and see I & 2 Vict. c. 77. 2 8 & 9 Vict. c. 52. 8 21 & 22 Vict. c. 49 ; 23 & 24 Vict. c. 63. By the 29 & 30 Vict. c. 19, all distinctions between Jewish and other members were removed by the enactment of a new form of oath from which the words ' on the true faith of a Christian ' were omitted. 4 6 & 7 Will. IV. c. 85. XVI -1 since the Revohition. 697 which opened all lay academical degrees and all lay academical and collegiate offices in the Universities of Oxford, Cambridge, and Durham to persons of any religious belief. V. Of the political privileges of the people acquired or (V.) Liberty of enlarged since the Revolution, we have still to consider the Press ' the liberty of the Press,—' the guardian and guide of all other liberties,' l — and the last to be recognized by the State. We have seen how freedom of opinion in religious matters was early restrained by the action of the Church against the Lollard teachers and writers; 2 and soon after the invention of -printing in the fifteenth century the press was placed under a rigorous censorship, not only in England but throughout Europe. After the Reforma- The Censorship, tion in England the censorship of the press passed with the ecclesiastical supremacy to the Crown. It became a, part of the royal prerogative to appoint a licenser with- out whose imprimatur no writings could be lawfully published ; and the printing of unlicensed works was visited with the severest punishments. Printing was further restrained by patents and monopolies. The privilege was confined, in the first instance, under regula- tions established by the Star Chamber in Queen Mary's reign, to members of the Stationers' Company, and -the number of presses and of men to be employed on them was strictly limited. Under Elizabeth the censorship was enforced by more rigorous -penalties. All printing was interdicted except in London, Oxford, and Cambridge ; and nothing whatever was allowed to be published until it had first been 'seen, perused, and allowed' by the Archbishop of Canterbury or the Bishop of London, except by the Queen's printer, to be appointed for some special service, or by law-printers who should require Earl Russell, Eng. Con. p. 339- 2 Supra, p. 378-381. 6g8 Progress of the Constitution [Ch. The Press under James I. and Charles I. The first news- paper, the Weekly Newes, 1623. the licence only of the chief justices. 1 Mutilation or death was the penalty of those who dared to print any- thing which the Judges might choose to construe as sedi- tious or slanderous of the government in Church or State. 2 Under James I. and Charles I. political and religious discussion was repressed by the Star Chamber with the greatest severity. 3 By an Ordinance of the Star Cham- ber, issued in July, 1637, the number of master printers was limited to twenty, who were to give sureties for good behaviour, and were to have not more than two presses and two apprentices each (unless they were pre- sent or past masters of the Stationers' Company, when they were allowed three presses and three apprentices) : and the number of letter-founders was limited to four. The penalty for practising the arts of printing, book- binding, letter-founding, or making any part of a press, or other printing materials, by persons disqualified, or not apprenticed thereto, was whipping, the pillory, and imprisonment. Even books which had been once ex- amined and allowed were not to be reprinted without a fresh licence ; and books brought from abroad were to be landed in London only, and carefully examined by licensers appointed by the Archbishop of Canterbury and the Bishop of London, who were empowered to seize and destroy all such as were ' seditious, schismatical, or offensive.' Periodical searches both of booksellers' shops and private houses, were also enjoined and autho- rized. Yet it was during this inauspicious period that the first newspaper, the Weekly Newes, made its appear- ance, late in the reign of James I. ;* and after the aboli- 1 Ordinances of the Star Chamber for the regulation of the Press in 1585, supra p. 439. 2 St. 23 Eliz. c. 2. See the cases of Stubbe, Udal, Barrow, Greenwood, and Penry, supra pp. 428, 432. 3 Supra, pp. 529 — 531. 4 The ' Weekly Newes,' May 23rd, 1623, printed for Nicholas Bourne and Thomas Archer. — May, Const. Hist. ii. 240. XVI -1 since the Revolution. 699 tion of the Star Chamber (Feb. 1640-1) tracts and news- papers issued forth in shoals during the contest between the Crown and the Parliament. 1 The Long Parliament, however, while abolishing the Star Chamber, continued the censorship of the press ; and endeavoured to silence The Censorship all royalist and prelatical writers by most tyrannical continued under j • , ^ 1 • 1 . . . , , , . , the Common- ordinances, to repress disorders in printing, by which wealth. the messengers of the government were empowered to break open doors and locks, by day or by night; in order to discover unlicensed printing presses, and to appre- hend authors, printers, and others. These proceedings called forth the ' Areopagitica ' of Milton, in which he Milton's branded the suppression of truth by the licenser as the Areopagitica. slaying of ' an immortality rather than a life,' and nobly, but ineffectually, pleaded for ' the liberty to know, to utter, and argue freely, according to conscience, above all other liberties.' 2 After the Restoration, the entire control of printing Licensing Act, was placed in the hands of the Government by the l6 7 2 - Licensing Act of 1662, which, though originally passed only for three years, was continued by subsequent renewals until 1679. Printing was strictly confined to London, York, and the two Universities: and the number of master printers was limited, as in the ordinances of the Star Chamber, in 1637, to twenty. 3 Authors and printers of obnoxious works were hung, quartered, mutilated, ex- posed in the pillory, flogged, or simply fined and im- prisoned, according to the temper of the judges ; and the works themselves were burned by the common hangman. 4 After the Licensing Act had been temporarily suffered 1 More than 30,000 political pamphlets and newspapers were issued from the press during the 20 years from 1640 to the Restoration. They may be seen at the British Museum bound up in 2,000 volumes.— May, Const. ' Milton, Areopagitica ; a Speech for Liberty of Unlicensed Printing. 3 13 & 14 Car. II. c. 33. 4 May, Const. Hist. ii. 242. 7oo Progress of the Constitution [Ch. The judges declare it criminal to publish anything concerning the Government. Unofficial news- papers stopped. Their place supplied by the Coffee-houses and News- letters. Licensing Act revived, 1685. Finally expired, 1695. The Press theoretically free, but still subject to restraints. to expire in 1679, the twelve judges, with Chief Justice Scroggs at their head, declared it to be criminal at common law to publish anything concerning the Govern- ment, whether true or false, of praise or censure, without the royal licence. 1 All newspapers were in consequence stopped ; and the people were reduced for political intelligence and instruction to two Government publica- tions, the official London Gazette, which furnished a scanty supply of news without comment, and the Ob- servator, which consisted of comment without news. In the absence of newspapers, the Coffee-houses became the chief organs through which the public opinion of the metropolis vented itself, while the inhabitants of pro- vincial towns, and the great body of the gentry and country clergy, depended almost exclusively on News- letters from London for their knowledge of political events. 2 At the accession of James II., in 1685, the Licensing Act was revived for seven years, and was thus in force at the Revolution. It was once more renewed in 1692, for one year and until the end of the following session of Parliament ; but a further attempt to renew it in 1695 was negatived by the Commons, and henceforth the censorship of the press has ceased to form part of the law of England. The press was now theoretically free ; but in practice it was still subject to several methods of restraint. The way in which the summary jurisdiction of Parliament was employed to check the publication of debates has already been referred to, with reference to the privileges 1 ' If you write on the subject of government, whether in terms of praise or censure, it is not material ; for no man has a right to say anything of government.'— Cart's case; 1680, State Tr. vii. 929. This monstrous opinion was not judicially condemned until 1765, by Lord Camden, Chief Justice of the Common Pleas, in the case of Entick v. Carrington; St. Tr. xix. 1 07 1. 2 See Macaulay, Hist. Eng. Ch. III. (Works, i. pp. 287, 305.) xvi.] since the Revolution. 701 of the House of Commons ; 1 and the Government also made use of two other means of controlling the press — (1) the stamp duty on newspapers, and (2) the law of libel. Newspapers, however, quickly multiplied when freed from the censorship, and in the reign of Queen Anne assumed their present form, combining intelligence with political discussion. 2 At the same time the intellectual character of the periodical literature was raised, and its influence widely extended, by the talents of writers like Addison, Steele, Swift, and Bolingbroke. But the press soon became the favourite instrument of party warfare, and by its scurrilous language excited a strong feeling of opposition to it among the governing classes. Each party when in power endeavoured to crush its opponents by prosecuting as seditious libels all publications which supported the Opposition. The gtam Dut on revival of the Licensing Act was even suggested, but Newspapers. dismissed as impracticable ; and the stamp duty on news- papers and advertisements was adopted instead, avowedly for the purpose of restraining the press generally and of crushing the smaller papers. The first Stamp Act was passed in the 10th year of Queen Anne, 3 and being found efficient both as a check on the circulation of cheap periodicals and as a source of revenue, the stamp was gradually raised to fourpence. At the end of George III.'s reign it was extended, by one of the series of statutes known as the Six Acts, 4 to tracts and other 1 Supra, p. 685. 2 The first daily paper, the Daily Courant, was issued in 1709. 3 10 Anne, c. 19. 1 The Six Acts (60 Geo. III. and 1 Geo. IV. c. i, 2, 4, 6, 8, 9) were a The 'Six Acts,' batch of repressive measures passed at the instance of the Government, in 1819. 1819 in consequence of the disturbed state of the country. By the first (c 1 ) the training of persons to the use of arms was prohibited ; by the second (c. 2) the magistrates in the disturbed counties were authorized to search for and seize arms ; by the third (e. 4) defendants in cases of mis- demeanour were deprived of the right of traversing ; by the fourth (c. 6), called the Seditious Meetings Act, extraordinary powers were conferred on the Executive, and all meetings of more than 50 persons for the discussion of public grievances were prohibited, except under very stringent conditions ; 702 Progress of the Constitution [Ch. unstamped periodicals which, while professing not to be newspapers, had obtained a wide circulation among the poor as disseminators of political news and dissertations. Evasions of the Stamp duty were frequent, and the State and the contraband press'continued at war until after the Reform Act of 1832. In 1833 the advertisement duty, which had been increased under George III., was reduced in amount, and in 1853 was relinquished alto- gether. In 1836 the stamp on newspapers was lowered to id., and in 1855 abandoned. The duty on paper, which had latterly proved a serious stumbling block in the way of popular education, was swept away in 1861. 1 Law of libel. A far more powerful instrument for the suppression of freedom of discussion than the Stamp Act was the law of libel. This was rigorously enforced by the Govern- ment under William III. and Anne ; but during the reigns of the two first Georges the press generally en- joyed more toleration, Sir Robert Walpole being indif- ferent to its attacks, and openly avowing his contempt for political writers of all parties. Shortly after the accession of George III., the nation, taking a keen interest in political affairs, and finding itself unrepre- sented in a corrupt House of Commons, sought utterance for its opinions in the columns of the press, which from this time rapidly rose into a formidable political power. A renewed conflict with the Government was the natural by the fifth (c. 8) the courts of law were enabled, on the conviction of a publisher of a seditious or blasphemous libel, to order the seizure of all copies of the libel in his possession or that of any other person specified, and on a second conviction, to punish him with fine, imprisonment, or banishment. The sixth (c. 9) extended the Newspaper Stamp duty to cheap political pamphlets and periodicals, as mentioned in the text. All these Acts were permanent except the Seditious Meetings Act, which was limited to five years, and the Seizure of Arms Act which expired on the 25th March, 1822. The punishment of banishment inflicted by the Seditious Libels Act was repealed in 1830 by 11 Geo. IV. & 1 Will. IV. c 73- 1 Supra, p. 543. XVI '] since the Revolution. 703 result. Lord Bute, the premier, was driven from power (April 8, 1763) mainly by the criticism of Wilkes in the North Briton} and a fortnight afterwards (Ap. 23) the celebrated No. 45 of that journal appeared, commenting No. 45 of the in severe and offensive terms on the king's speech at the prorogation of Parliament and upon the unpopular Peace of Paris recently (Feb. io, 1763) concluded. By a strained exercise of prerogative a general warrant was Apprehension issued for the discovery and apprehension of the authors °f Wilkes and , . ' rr others on a ana printers (not named) of the obnoxious No. 45. general warrant. Forty-nine persons, including Wilkes, were arrested on suspicion under the general warrant ; and it having been ascertained that Wilkes was the author, an information for libel was filed against him in the King's Bench on which a verdict was obtained. 2 Released from prison on the ground of privilege as a member of Parliament, 3 Wilkes brought an action against Mr. Wood, the under Secretary of State, and obtained a verdict of £1000 damages ; 4 and four days afterwards Dryden Leach, Leach v. Money, one of the printers arrested on suspicion, gained another verdict with £400 damages against the messengers. On a bill of exceptions, which was argued before the Court of King's Bench in 1765, Lord Mansfield and the other three iudees pronounced the general warrant illegal Genera l J ° r ... . . warrants declaring that ' no degree of antiquity could give sanction declared illegal. to an usage bad in itself.' 5 In the same year, 1765, an action brought by Entkkw. Mr. John Entick, the suspected author of the 'Monitor, or British Freeholder,' against the messengers who had seized all his books and papers under a general Seizure of search warrant from the Secretary of State, was decided ^eral"ea£h against the Government. Lord Camden, Chief Justice of warrant. 1 Supra, p. 650. 2 Rex v. Wilkes, 4 Burr. 2527, 2574. 3 Supra, p. 683. 4 Wilkes v. Wood, 19 St. Tr. 1153 ; Broom, Const. Law, 548. 5 Leach v. Money, 19 St. Tr. 1001 ; Broom, Const. Law, 525. 704 Progress of the Constitution [Ch. Junius'sLetterto tbe King, 1769. Strained interpretation of the law of libel. Trial of Woodfall for publishing the the Common Pleas, determined that such warrants, which had originated in the practice of the Star Chamber, and had been unjustifiably continued since the expiration of the Licensing Act of Charles II., were absolutely illegal. 1 The excitement caused by the proceedings against Wilkes and the printers had scarcely subsided, when the prosecutions which followed upon the publication of Junius 's celebrated Letter to the King in the ' Morning Advertiser ' of the 19th December, 1769, forcibly directed the attention of the public to the severe and extended interpretation of the law of libel adopted by the judges since the Revolution. Already, in 1731, on the trial of one Franklin for publishing a libel in the Craftsman, it had been held that falsehood, though always alleged in the indictment, was not essential to the guilt of the libel, and Lord Raymond positively refused to admit of any evidence to prove the truth of the statements com- plained of. On the trial of Almon, a bookseller, for selling a reprint of Junius's letter, two other doctrines which excepted libels from the general principles of the common law were maintained by the courts. (1.) It was held that the publisher of a libel was criminally liable for the acts of his servants, unless proved to be neither privy nor assenting thereto ; and afterwards the judges decided that exculpatory evidence was inadmissible, and that publication of a libel by the servant was conclusive proof of the criminality of the master. (2.) Lord Mans- field laid it down that it was the province of the judge alone to determine the criminality of a libel, leaving to the jury to determine merely the fact of publication, and whether the libel meant what it was alleged in the in- dictment to mean. On the trial of Woodfall, the original publisher of the ' Letter to the King,' the jury, Entick v. Carrington, 19 St. Tr. 1030 ; Broom, Const. Law, 558. XVI -] since the Revolution. 7°5 in order to defeat this interpretation of the law, found Letter to the the defendant 'guilty of printing and publishing only,'— King ' I77 °' a verdict which the court held to be uncertain, necessi- tating a new trial. Miller and other printers who were subsequently tried for printing the same letter were boldly declared by the jury to be not guilty. The doctrine held by the judges in these trials was strongly animadverted upon in both Houses of Parlia- ment ; and the rights of juries in cases of libel were nobly and eloquently maintained by the advocacy of Erskine in the cases of the Dean of St. Asaph, in 1779, and of Stockdale, in 1789, the latter being a prosecution for publishing what was charged as ' a scandalous and seditious libel ' concerning the conduct of the House of Commons in its impeachment of Warren Hastings. At length, in 1792, the ruling of the judges as to the province of juries was in effect reversed by Mr. Fox's Mr. Fox's Libel Libel Act, which declared their right, on any trial or in- Act ' I?92 - formation for libel, to give a general verdict of guilty or' not guilty on the whole matter. 1 But the signal advance made by liberty of opinion Reactionary during the first thirty years of George Ill's reign was P« ™dm growth about to receive a decided check. The proceedings of opinion, the French revolutionists created a wide-spread terror of * 792-1832. democracy among the great body of the English people, which was aggravated by the extravagance of a small but turbulent body of social and political reformers in England itself. With the publication by the Government in 1792, of a proclamation warning the people against wicked and seditious writings industriously dispersed among them, and commanding magistrates to discover the authors, printers, and promulgators of such writings, began a reactionary period in the growth o.f the liberty of opinion which cannot be said to have entirely passed 32 Geo. III. c. 60 ; supra, p. 166. jo6 Progress of the Constitution. [xvi. away until after the passing of the Reform Act of 1832. During this period prosecutions of the press abounded : seditious speaking was severely restrained ; and the regulation of newspapers frequently occupied the atten- Freedom of the tion of the legislature. But from the year 1832 at latest fstebiuh^d 16 ' 617 the freedom of the P ress has been completely established. The utmost latitude of criticism and invective has been allowed it in discussing the actions of the Government and Lord Campbell's of all public men and measures. By Lord Campbell's Libel Libel Act, 1843. Act, passed in 1843, the defendant on an indictment or information for a defamatory libel is allowed to plead its truth and that its publication was for the public benefit ; and the harsh extension of the ruling in Almon's case, 1 as to the criminal liability of a publisher for the unauthorized acts of his servants, has been altered by allowing the de- fendant in all cases to prove that such publication was made without his authority, consent, or knowledge, and that it did not arise from want of due care or caution on his part. 2 State prosecution for libel is now as much a thing of the past as the censorship itself. The policy of repression has been finally discarded ; and rulers have at length recognized in practice the truth and wisdom of Lord Bacon's maxim, that ' the punishing of wits enhances their authority ; and a forbidden writing is thought to be a certain spark of truth, that flies up in the faces of them that seek to tread it out.' 3 1 Supra, p. 703. 2 6 & 7 Vict. c. 96. 3 On liberty of the press see Hallam, Const. Hist. iii. 2-6, 166-170; May, Const. Hist. ii. 238 — 379. INDEX. ABBEYS, Barons founders of, to have the custody of, when vacant, 112. 'Abhorrers' and 'Petitioners,' 584. Act of Settlement, 207; its constitu- tional provisions, 630. Acts of Supremacy and Uniformity, passed A.D. 1559, 412 ; and 1662, 598. Administration, system of, under the Norman and Plantagenet kings, 142 ; right of the Commons to inquire into the abuses of the, 246, 253. Advowsons, suits as to, 90. Alfred (the Great) styled only King of the West Saxons in his will, 9 ; Dr. Freeman's summary of the character of, 10, n. ; as a legislator, 42. ^Ethelings, sons or brothers of the king, 29 ; word originally denoted noble birth, ib. ; ranked above the nobility, ib. ; penalty for the violation of their rights, ib. Ager publicus, analogy of Folkland to the, 13. Agricultural labourers, discontent of, with the landowners, 364. Agriculture, means proposed for the restoration of, at Peace of Walling- ford, 84. Aids, contributions from the tenant to his lord, 60 ; provision as to, made in Magna Charta, 109 ; not to be made except by common counsel of the nation, 123. Aliens, their disabilities, denization, and naturalization, &c, 631, n. 2. Allen (Cardinal William), founds Papist seminary at Douay, 420, ». 2. Amercements, 113; derivation of the term, 114. Ancient English laws, 41. Ancient German polity, 4. Angevin or Plantagenet dynasty, Henry II. the founder of the, in England, 85. Annates, Act restraining the payment of, to the Pope, 392, 397, n. 1. Annual Indemnity Acts passed under George II. in favour of Dissenters, 693. 'Appeal,' meaning an accusation, origin of this private process, 121. Appropriation of Supplies, first instance of, 249. Arbitrary imprisonment, Stat. Pet. of Right, 3 Car. I. against, 522. Archbishops, rank as high as members of, the King's family, 26 ; to be nominated by the King'srconge d'elire, 396. Arms, Protestants allowed to carry, for their defence, by the Bill of Rights, 623 and 624, n. Army, standing, supersedes the militia, 186 ; used by Charles to overawe parliament, 55^ ; increased by James II., 607 ; sketch of the military force in England, 607, n. 2, et seq. ; made illegal by the Bill of Rights, without consent of parliament, 623. Arrest, freedom from, a privilege of • parliament, 299 ; vindicated by the Commons, 465, and ib. n. 2. ' Articles of Reform,' 244 ; annulled by stat. 15 Edw. II., ib., n. 1 ; their purport, ib. n. 2. Articles of Religion made Thirty-nine in number, 414. Arundel (Earl of) committed to the Tower by Charles I., 51 3- Ashby v. White, 1702, 310. Ashford v. Thornton, 122. Assassination practised by the English on the Normans, 67 ; law of ' Eng- lishry ' against, ib. Assemblies, rebellious and unlawful, Act 2 & 3 Edw. IV. against, 365. Assize, judges of, 153. Assize of Arms, national militia revived by the, 89 ; requirements of the, regarding military service, 179 ; re- newed and remodelled by Edward I. , 7o8 Index. Assizes, provision made by Magna Charta for the holding of, 112, 158, 159- ' Association of Christian Brothers,' the, 382 ; Luther's writings sedulously circulated by, 384. Attainder, Bills of, 293, 350; difference of, from an Impeachment, ib. n. I. Attainder and forfeiture for treason or felony abolished, 364, n. Attaint, writ of, jurymen liable to, 164; abolished temp. George IV. ib. Audit of public accounts enacted by parliament, 249. Aylesbury men, case of the, 311. Aylmer's ' Harborowe of True and Faithful Subjects,' 457, and ib. n. 2. BACON (Francis, Lord Chancellor), his advice to James I. for managing the House of Commons, 481 ; im- peached, punished, and imprisoned, 494 ; his sentence remitted by James, ib. n. 2. Ballot Act, 1872, 678; the Universities exempted from, 679, n. 1. Bar, the, James I. attempts to repress the liberty of, 490, n. 1. ' Baron,' the word of wide signification, 125. Barons, unsuccessful insurrections of the, in William II. 's reign, 74 ; new ones created by Henry I., 78 ; their power largely curtailed by Henry II., 87; and by the institution of Scutage, 88 ; .obtain Magna Charta for the people, 99 ; refuse to follow John on foreign service, 102, 105; confederacy of the, at St. Edmund's, 106 ; offer the Crown to Louis of France, 136. Barrow (Henry) executed for writing seditious books, 432. Bastwick (Dr.), his trial with Prynne and Burton, and sentence for pub- blishing ' Elenchus Papismi et Fla- gellum Episcoporam,'53i; further heavy sentence by the Star Chamber for attacking his prosecutors, ib. ; popular sympathy .for, ib. ; liberated by the Long Parliament, 548. Bates (John), case against, in the Court of Exchequer, a.d. 1601, 472; the decision of the judges subversive of liberty, ib. Battle, trial by, superseded by trial by Jury, 87; demand for, made in Thornton's Case, 122; abolished, ib. Bede's history of the English conquest of Britain, 3, n. 4. Belesme (Robert de), Earl of Shrews- bury and Arundel, forfeiture of his estates and expulsion from the king- dom, 78. Benefices, John concedes to the Pope the right of nominating to, 370; which is greatly abused, 371 ; the Stat, of Provisors, 25 Edw. III., forbidding the Pope's nomination to, 373. Benefit of Clergy, 382. Benevolence, James I. calls for a gene- ral, 484; Protests against it, 485. Benevolences extorted from the richer classes by Edward IV. , 329 ; declared illegal by Richard III.'s parliament, 330; again introduced by Henry VII., 342; 'Bishop Morton's Fork,' 343; had recourse to by Henry VIII. , 347 ; oppressive treatment of those refusing to contribute, ib. Bennet (Sir John, Judge of the Prero- gative Court), impeached, A.D. 1621, 494. Berkley (Justice), his judgment in the Ship-money xase of Hampden, 537 ; imprisoned, 551, «. 2. Bible, English translation of the, A.D 1538, 408. Bill of Rights, 1689, 207, n. 1, the ' Declaration of Right ' embodied and confirmed in the, 621 ; text of the, 621-628. Billeting of Soldiers and Mariners, 522. Bills of Attainder, 293, 350. Bills, petitions to parliament assume the form of statutes under the name of, 287; money bills originate in the Commons, 286 ; Peerage Bills in the Lords, 288. Births, Marriages, and Deaths, estab- lishment in 1836 of a civil registration of, 696. Bishops ; prominent members of the Witenagem&t, 8 ; arrest of the three, by Stephen, 83; the petition of the Commons for a scrutiny into eccle- siastical abuses referred to the, 386 ; their answer and Henry VIII. 's criti- cism on it, ib.; to be nominated by the King's congi d 'Mire, 396; Oath of Supremacy refused by, 417, and ib. n. 2; the Bishops' Act passed, 1566, 420; deprived of temporal jurisdic- tion by the Long Parliament, 555, and ib. n. 3; the bills introduced in the House of Commons for that purpose, 563, n. 1, attempt to exclude them from the House of Lords, 668, n. 1. Index. 709 Bishops, trial of the Seven, 1688, 613; their names, ib. n. 2. Eland's case, privilege of parliament, 455- Bocland, 12, 13, and «. Bolingbroke (Henry St. John, Visct.), case of the impeachment of, a.d 171S. S°l. n. Boniface VIII. (Pope) claims to be feudallordofScotland, and commands Ed ward I. to withdraw his troops, 371; answer of the English parliament, ib. Boniface IX., struggle of the Crown with, 375. Bonner (Bishop) indicted by Home, Bishop of Winchester, for refusing the oath of Supremacy, 420 ; pleads that Home is not a lawful bishop, ib. Book of Common Prayer, Acts for Uniformity of Service, &c, Edw. VI., 409, and ib. n. 2 ; penal clauses Jfor using any other form of prayer, re- enacted in the Act of Uniformity, 1662, 599. Books, importation of, containing heresy and treason, forbidden by Mary, 364'; possessors of, to be executed, ib. ; excuse for this arbitrary proceeding, ib. n. 2. Borough Elections, qualification of members at, 316 ; the electors in, ib. et seq. Borough-English, a variety of tenure in burgage, 64. Boroughs, Charters to, granted by Henry I., 79; and extensively sold, 96; growth of the representation of, 222. Bretigni, treaty of, A.D. 1360, 258. Bretwaldas, the, 8; Ecgberht, eighth king who was Bretwalda, 9 ; etymo- logy of the word, ib. n. i. Bribery at Elections, attempt to pre- vent by Statute of Queen Anne, excluding all but landowners from House of Commons, 316; repealed 1838, ib.; earliest precedent for the punishment of, Long's case, 1571, 455 ; measures for the suppression of, 678. Bridges, no town or man to be distrained to make, 133. Bristol (Earl of), refusal of Charles I. to grant him a writ of summons to parliament, 513 ; complains to the peers, ib. ; charged with high treason, ib.; retaliates by impeaching Bucking- ham, ib. Britons (The) driven to the western parts of the island, 2 ; hypothesis as to Britons (The)— their intermarrying with the English, ib. ' Brownists,' the, 468. Buckingham (George Villiers, Duke of), case of the impeachment of, a.d. 1626, 495, n. I; opposition to him, 510; Speech of Sir R. Cotton against, ib. ; the King's message on the im- peachment of, 51 1; impeached by Earl of Bristol, 513. Burdett (Sir Francis) adjudged guilty of contempt by the House of Commons and committed to the Tower, 686. Burgage, tenure in, 64. Burgh, the, 17; its organization, 18. Burleigh (Sir William Cecil, Lord) administration of, 440. Burton (Henry), his pamphlet, "News from Ipswich," 531 ; tried and sen- tenced with Prynne and Bastwick, ib.; popular sympathy with, ib.; liberated by the Long Parliament, 548. BushelVs case, immunity of juries esta- blished in, 165. Bute (Lord), his administration, 1762, 650 ; his fall, 65 1 ; continued in- fluence with the King, ib.; dismissal, ib. CABAL MINISTRY, THE, 1671,637. Cabinet, the, its growth, 634, et seq. Catholic Emancipation Act, 1829, 695. Calvin (Richd.) The post-nati case, 7 Jac. I., 471, n. 2 ; 632, n. Campbell (Lord), Libel Act passed by, 1843, 706. Campian (Edmund) despatched by Pope Gregory XIII. to England to bring about its re-conversion, 424 ; im- prisoned in the Tower, 425 ; exe- cuted, 426. Canons, a new set of, promulgated by Convocation, 545. Canterbury, double election to the See of, 103 ; both set aside by the Pope, ib. Cartwright (Thomas), leader of the at- tacks on Episcopacy, 430 ; pub- lishes 'Admonition to Parliament,' ib. Garucage, a form of taxation under Richard I., 93. Case of Commendams, A.D. 1616, 488. Castle-guard, no. Georls, the, 24 ; their depression prior to Norman Conquest, U>. n. Cerdic, ancient line of, II. o Index. ncellor, the office of, subordinate to tat of Justiciar, 72 ; introduction of le title of, 144; and derivation of le name, ib. n. 1 ; growth of the Dwer of, 145 ; rise of the jurisdiction "the, 168; equitable jurisdiction of, 39; encroachments of, on the juris- ction of the common law, ib. ; office : , regarded with distrust by the laity, 73- ncery, Court of, extension of its risdiction during Edward II. 's reign, 39; statutes passed restraining it, 70; its equitable jurisdiction muchex- nded in the reign ofRichardll., 172; mtinual remonstrances of the Com- ons against its encroachments, 74- rles I., A.D. 1625-49, 32, n. ; his Dlitical character, 508 ; his first par- ament, 509 ; his message to the ommons on the impeachment of uckingham, 511; his expedients to .ise money without parliament, 514; lforces a general loan, ib. ; his third irliament, 1627, 515; his opening peech, ib. ; gives his assent to the etition of Right, 520 ; his violation " it, 524; calls another parliament, 328-9, 524; dissolved, ib.; inti- ates his determination to govern ithout parliament, 526; the ag- ressor in his conflict with Parlia- ent, 527; ship-money, 532, etseq.; tempts to change the ecclesiastical mstitution of Scotland, 541 ; calls a urth parliament, 1640, ib. ; offers 1 give up ship-money for twelve sub- dies, 544; dissolves his fourth par- iment, ib. ; resumes his despotic >urses, S45 ; failure of his military aerations against the Scots, 546; immons his fifth {the Long) Parlia- ient, ib. ; his view as to invalidity of atutes, 556; goes to Edinburgh, 57; object of his journey, ib. ; offers lice to the popular leaders, 557 ; at- :mpts to arrest the 'Five Members,' J2; his speech on the occasion to le Commons, 574; end of his con- itutional struggle with parliament, n- rles II., A. D. 1660-1685; chief con- itutional statutes of his reign, 581 ; le first year of his reign called by a gal fiction the twelfth, ib. n. 1 ; iters into a conspiracy with Louis IV. of France against the Protestant ith in England, 596 ; enjoys despotic Charles II. — power during the last years of his reign,. 604. Charters to Boroughs extensively sold by Richard I., 96. Charter of Liberties granted by Henry I., 75; its importance, 77. Chatham (Lord) advocated parliamen- tary reform in 1766, 675. Chester, the County Palatine of, ad- mitted to parliamentary representa- tion, 355. Chester, Court of the County Palatine of; its jurisdiction abolished, except in matters touching the King's private estate, 55 2 > an( i >'*■ ». 2 - Christianity, conversion of the English to, 7 ; influence of, ib. Church (the), English brought within the pale of, 8 ; deference to Rome, but marked national character of, ib. ; various ecclesiastical organizations re- duced to one National Church by Theodore of Tarsus, ib. ; ecclesiasti- cal unity precedes civil unity, ib. ; enjoyed independence before the Conquest, 69; afterwards brought into closer connexion with Rome, ib. ; identical with the State before the Conquest, 70 ; separation of spiritual from temporal courts by William the Conqueror, ib. ; but the supremacy of the Crown maintained, ib. ; promises made by Henry I. to, 75 ; regains her spiritual freedom, 81 ; concessions to, by Stephen, 82; supremacy of the State over, maintained by Henry II. , 86 ; her relations with the State de- fined by the Constitutions of Claren- don, 89 ; of the Middle Ages, though despotic, also democratic, 92; liber- ties of, preserved by Magna Charta, 107 ; separation of, from the Church of Rome, political and legal rather than religious, 369 ; always possessed a marked national character, ib. ; re- formation of, by Henry VIII., 384; influence of Luther's writings on the doctrines of, ib. ; the King enacted to be ' the Supreme Head ' of, 401 ; dis- solution of the monasteries, 402, 404; distribution of the property of, 406 ; peculiar character of the reformed national, 414; its rela- tion to the Crown, 415; distaste- ful to the more zealous Protestants, 428; government of, entrusted to seven commissioners, by James II., 611, n. 2. Index. 711 Church of Scotland, interference of Charles I. with the, 541 ; consequent rebellion, ib. Circuits of the Justices commence to- wards the end of Henry I.'s reign, 80; regularly formed, 153. Citations to the Court of Rome forbid- den by stat. 27 Edw. III., 374. Civil equality of all ranks below the peerage, 242. 'Civil List,' account of the changes in the amount of the, 661. Clarendon, the Constitutions of, 89; enumeration of the articles, 90-92. Clarendon (Edward Hyde, Earl of), Case of the Impeachment of, A.D. 1667, 497, n. Clark, Baron, judgment in Bates' Case, 472. Classical writings, influence of, in the direction of liberty, 462, n. 2. Clement VII. (Pope), vacillation and duplicity of, in Henry VIII. 's divorce suit, 384. Clergy (the), high political and social status of, 26; had their own synods for Church matters, ib. ; contest of, with Henry I., 81 ; concessions to, by Stephen, 82 ; alienated from Ste- phen, 83 ; customs of, regulated by the Constitution of Clarendon, 89 ; contest with Henry II., ib, ; not to quit the realm without permission, 91 ; constitutional opposition of, to Richard I., 94; represented in parlia- ment, 230; but averse from interfer- ing in secular legislation, 231 ; prefer their own assembly or ' Convocation,' ib. ; cease to attend parliament in the 14th century, ib. ; laws enacted by the advice of, alone, 232; retained the power of taxing themselves till 1664, 232; since then have the right of voting, ib. ; not now a separate estate of the realm, ib. ; taxation of, by Edward I., 233; wealth- privileges, and encroaching temper of, 382 ; be- nefit of, ib. ; Henry VIII. 's opinion on the oath taken by, to the Pope, 386; the whole body of, guilty of Praemunire, 389; pardoned on pay- ment of a large sum, and admitting the King's supremacy, ib. ; an act passed for the submission of, to the King's authority, 396; archbishops and bishops to be appointed by the King's conge" a" Hire, ib. ; the Thirty- nine Articles made binding on the, 414; generally conform to the re- Clergy— formed religion, 417; deviations of, from the Act of Uniformity stopped by Elizabeth, 429 ; the marriage of, 429, n. I ; deprived, by the Long Parliament, of temporal jurisdiction, 555, and ib. n. 3. And see Church —Ecclesiastical. Clerks accused of crime, trial of, 90. Coalition Ministry, 1783, abruptly dis- missed by the King, 655. Codification, early attempts at, 41. Coinage reformed by Henry II., 87. Coke (Chief Justice Sir Edw.) objects to the judges being consulted sepa- rately by the King or his law officers, 487, and n. 1 ; his collision with King James, 488 ; dismissed from the chief justiceship, 491 ; his disgrace an his- torical landmark, ib. ; moves in the House of Commons for a committee to enquire into grievances, 493 ; pro- secution of, 503; speech of, in favour of a Petition of Right, 517. Comites, the retainers of tie principles, 5. Commendation, 52, 53, n. Commerce, extraordinary expansion of, during the Tudor period, 332. Commission of Reform appointed temp. Richard II., 265. Commissioners of array appointed when invasion apprehended, 185. Common lands, large enclosures of, made, which leads tp insurrections, 364, 365, «• i. ^7— /-V. Common law, encroachments of the Council on the jurisdiction of the, 169. Common Pleas, the, to be held in some fixed place, 112; jurisdiction of, 150. and 151, n. 1. Commons, House of. See House of Commons. Compurgation, facts at law decided by, 38 ; superseded by trial by jury, 87 ; dies out, 160 ; retained some time longer in boroughs, 161, n. 1. Concilium Ordinarium, the, of the King, 166; its extensive jurisdiction, 167; encroaches on the common law, 169; statutes passed in restraint of, 170; its relation to parliament, 1 74, 634. See House of Lords. ' Confirmatio Ckartarum,' 25 Edward I., 235, and ib. n. 3. Conge d'elire, archbishops and bishops to be nominated by the King's, 396. Conservators of the peace, germ of the office of, 182. Constables, meaning of the word, 115. Index. stituencies, tabular statement of the crease in, since the Reform Acts of 567-8, 678, n. stitution, the, nowise derived from elt or Roman, 3; freedom of the, the 15th century, 330; views of ylmer, Onslow, Harrison, Hooker, id Sir Thomas Smith on, under lizabeth, 459 ; theory of an inherent iramount power in the regal office, pugnant to the, ib. ; progress of, ace the Revolution, 629-706; owth of the unwritten or conven- jnal code of the, 629. stitutions (the) of Clarendon, nature ', 89 ; enumeration of the articles, 1-92. tempt of a Court of Justice, arrest ' members of parliament for, 305 ; 3rd Cromwell's case in 1572, ib. ; ses of, by members of parliament, )6, n. 1. venticle Act of 1664, 600. vocation, unconstitutionally con- lued by Charles after the dissolu- )n of parliament, 545 ; promul- ites a new set of canons, ib. jpoints a. new oath to be taken to event innovations in religion, ib. ; litome of the history of, from enry VIII. to the present time, 17, ». 1. e (Mr., M. P. , ) his Bill and Book for :clesiastical reform, 446. ley (Mr., M.P.,) committed by the ouse for disrespectful words of ueen Elizabeth, 454. yhold, transmutation of Villein nure into, 274. Miation, the ceremony of, 187, n. 2. Dners for the Counties, elected, 96 ; ities of, prescribed by statute Ed- ard I., 183. ioration Act repealed, 1828, 694. Dorations intimidated into surrender- ig their charters 1683, 605. on (Sir Robert), speech against uckingham, 510. ncil of the North, ■ the Court of, jolished, 552, and ib. n. 2. ncil. See Concilium ordinarium T agnum concilium, and Privy Coun- tries Palatine, creation of, by Wil- im the Conqueror, 57. nty franchise enjoyed by all free- ilders, 312. nty and Hundred Courts, jurisdic- >n of, strengthened by Henry I., 79. County representation in National Council prior to De Montfort's Par- liament, 215. Courts of the Hundred, constitution of, 35 > organization of, weakened by private jurisdictions, 36. Courts of law, separation of ecclesiasti- cal from civil jurisdiction in, 70. Courts-Martial, resorted to by Eliza- beth without justification, 436. Coutances (William of), 'entrusted with a secret appointment to the office of justiciar by Richard I., 95 ; his ap- pointment recognized, 96. Cowell (Dr.), Law Dictionary or 'In- terpreter ' published by, 476 ; ex- travagant assertions in it, in support of the King's absolute power, ib. Crawley (Justice), upholds the royal pre- rogative in his judgment on Hamp- den's ship-money case, 537. Creighton (a Scottish Jesuit), capture of, at sea, bearing a plan for a Spanish invasion, 426. Cromwell (Thomas, Earl of Essex), questions the judges as to condemna- tions for treason, 350 ; executed, 351 ; Henry VIII. 's vicegerent in matters ecclesiastical, 402. Cromwell (Oliver), the importance he attached to the passing of the " Grand Remonstrance,' 560; his government a despotism, 578 ; permanent effect of his work ib. n. 2. Crooke (Sir George), his judgment in the ship-money case of Hampden, 537- Crown, power of the, augmented by Henry II., 89 ; the succession to the, 187 ; ecclesiastical form of election to the, survived to the accession of Henry VIII., 197 ; right of parlia- ment to re-settle the succession to the paramount, 197 ; doctrine of in- defeasible hereditary right to the, first promulgated by the House of York, 198 ; entailed on Henry IV. and his issue, ib. ; devised by Henry VIII., 203 ; more strictly hereditary since the Act of Settlement, 208 ; suspending and dispensing powers of the, 289 ; dangerous increase of the power of the, during the Tudor period, 336 ; legal liability of the servants of, 338 ; the power of the, increased by the assumption of eccle- siastical supremacy, 352 ; relation of the Reformed Church to the, 415 ; Papists excluded from succession to, Index. 713 Crown — 627 ; declaration to be made by King or Queen on succession to, ib. and 628, n. ; legal prerogatives of the, 646 ; resolutions of Mr. Dunning on the influence of the, 655 ; revenues of. 660. Crown debts, clause as to, in Magna Charta, 133. Crown lands placed at the disposal of parliament, 663, and n. Curia Regis, its administration organ- ized, 79 ; reorganized by Henry II., 87 ; its constitution and powers, 145 — title of its members, 146, n. 1 ; its changes under Henry II., 150; its division into three courts, ib. — mean- ing of the words, 151, n. 1, 210. Custodes pads, office of, 182. Cyning, or King, title of, assumed by the Teutonic leaders, 7 ; meaning of the word, 26, n. DAMAREE and Purchase, case of, 361, n. Danby (Thomas Osborne, Earl of), case of the impeachment of, a.d. 1679. 497-99, «• Danby 's party, 1688, their opinions, 616. Danegeld, cost of mercenary troops de- frayed by a, 72 and ib. n. 1 ; revived by Richard I., 93 ; the nature of, 146 and ib. n. 2. Danes closely allied in race, language, &c, to the Germans, 3 ; invasions of the, hasten the consolidation of the various kingdoms, 9 ; similarity of their institutions to those of the Eng- lish, 10 ; limits of their occupation defined by the treaty of Alfred and Guthrum, 10 ; reduced to submission, ib. ; fresh attacks from, 11 ; English royal house supplanted by the, ib. Darnel (Sir Thomas), case of, A.D., 1627, 514- De Asportatis Rehgiosormn, 35 Edward I., 372. Death, punishment of, abolished by William the Conqueror, 68 ; re-intro- duced for offences against the forest laws, by William Rufus, 80 ; ex- tended to ordinary crimes by Henry I., ib. Debates in Parliament, their publica- tion, 686; 'news-letters' prohibited, 687 ; conflict of parliament with the printers, 1771, ib. ; reporting, still in Debates — theory a breach of privilege, 688 ; political results of reporting, 689 ; right of a newspaper to publish a fair and faithful report of, determined, 691. Debt, pleas of, King's court to have jurisdiction over, 90. Declaration for Liberty of Conscience, issued by James II., 1687, 612 ; its motive mistrusted by the Noncon- formists, ib. ; a second one published, 613 ; ordered to be read in all churches, ib. ; petition of the Seven Bishops against this order, ib. ; their imprisonment, prosecution, and ac- quittal, ib. ' Declaration of Right,' drawn up, 1688-9, 619 ; embodied as an" Act, "The Bill of Rights," 621. ' De Haeretico Comburendo,' enacted on the petition of the clergy' alone, 232, «. 1 ; the statute passed, 2 Henry IV. c. 15, 379 — abolished 29 and 30 Car. II. c. 9. — 380, n. I. 'De Mercatoribus,' Stat. 11 Edward I., 227. De Montfort's parliament, A.D. 1265, not the ' origin of popular representa- tion,' 215. De Montfort (Simon), founder of the House of Commons, 220 — admits representatives of towns, ib. career of, ib. n. 4. Denalagu, the, region where the Dan- ish law was in force, 10. De odio et atia writ, to be given gratis, 117. Derby (Earl of), on the House of Lords and public opinion, 670, n. ' De Tallagio non Concedendo ' not an actual statute, 236 and ib. n. 3. Digges (Sir Dudley), committed to the Tower by Charles I. 512 ; deserts the popular party, 527 — made Master of the Rolls, ib. Disfranchising statute, the first, 8 Henry VI. c. 7, 313. Dispensing power of the Crown, 289 ; the prerogative assumed by James II., 610 ; decision of the judges in favour of it, 611 ; its exercise declared ille- gal by the Bill of Rights, 623. Dissenters. See Nonconformists.- Dissenters' Marriage Act, 1836, 696. Divine right of Kings, theory of the, 463 ; adopted by the hierarchy ib. n. 2 ; elaborated into a system by Filmer, ib. n. 3. Domesday Book, 56, n. 1. 714 Index Domesday Survey decreed, 55 ; its quick completion, fulness, and accu- racy, 56. Dover, the secret treaty of, 1670, entered into by Charles II. with Louis XIV., 596. Duces, leaders in war, authority based on personal valour, 5. Dunning (Mr.), his celebrated resolu- tions, 1780, on the influence of the Crown, 655. EADGAR crowned King of all Eng- land, 10. Eadward the Confessor recommends Harold to be his successor, 45 ; laws of, renewed by William the Con- queror, 66 ; and granted to the nation at large by Henry I., 76. Ealdorman, a title of the Teutonic leaders, "J. Earldoms, power of the great, under Cnut and Eadward the Confessor, 44 ; abolished, 57- Earls, "jurisdiction of, restricted, 57' Ecclesiastical abuses, 384 ; statutes in restraint of probate fees and of mor- tuaries, 387 ; of pluralities, non-resi- dence, and clerical trading, 388 ; of the citation of persons out of the diocese in which they reside, 392 ; of appeals to the Pope, 394. Ecclesiastical affairs in England in- fluenced by those in Scotland, 433. Ecclesiastical appeals not to go further than the archbishop, without the King's consent, 92. Ecclesiastical causes, Court of Com- missioners for, established by James II., 611. Ecclesiastical courts, established by William the Conquerer, 70 ; juris- diction of, 90 ; appeal from the, to Rome, forbidden, 395 ; the course of appeal regulated, ib. ; commissioners to hear and determine finally ap- pointed, 396 ; termed the Delegates of Appeals, and only superseded by 2 and 3 William IV., c. 92, ib. n. I ; bill introduced into the House of Commons for the reform of the, 447 ; deprived of the power to inflict fine, imprisonment, &c, 553 ; Ecclesiastical divisions, 21. Ecclesiastical elections only nominally free, 103. Ecclesiastical polity of Elizabeth, 411. Ecclesiastical Preferments : right of the Pope to nominate to ; conceded by John, 370 ; greatly abused under Henry III., 371. Ecgberht, King of the West Saxons, 9. Edward I., a.d. 1272-1307, our Eng- lish Justinian, 184 ; preferred great councils to parliaments, 225 ; his first general parliament, 1275, ib.;his , capacity for government, 233, ». 1 ; a grand remonstrance presented to, 234; confirms the "Confirmatio Chartarum." Edward II., A.D. 1307-27, his de- position .the work of the barons, sanctioned by parliament, 243. Edward III., A.D. 1327-77, his ille- galities and disregard of constitutional formalities, 245-250. Edward IV., A.D. 1460-73, elected King, 199 ; long suspension of parlia- ment during his reign, 329 ; forces contributions under the name of benevo- lences from the richer classes, 329. Edward VI., A.D., 1547-53, the re- ligious reformation under, 409. Election, the principle of, introduced, 96. Election and representation, at an early period familiar to the nation, 214. Elections, systematic attempts to in- fluence, 284 ; right of the Commons to determine contested, 306, et. seq. ; election cases, 308, et. seq. ; abuse- of the exclusive jurisdiction of the Com- mons in, 312 ; trial of controverted, transferred to the Judges of the Sup. C. L. Courts, ib. ; qualifications of members for boroughs, 316 ; the elec- tors in boroughs, ib. et. seq. ; open interference of the Crown in, 368 ; first precedent tor the punishment of bribery at, in Long's case, A.D. 1571, 455 ; interference of James I. in, 465 ; the House of Commons vindi- cate their right to determine contested, ib. ; answers of constituencies sought to be influenced by James I . , 473, ». 2. Electors, the Commons claim the right .to determine the rights of, 310, et. seq. ; contest on this subject with the Lords, 3 1 1 ; case of the ' Aylesbury men,' ib. ; first statutes regulating the qualifications of, 312. Eliot, Hollis and Valentine, case of, 5 Charles I., 298. Eliot (Sir John), committed to the Tower by Charles I., 512 ; again with other members of parliament im- prisoned and fined, 526-7 and ib. n. I. Index. 715 Elizabeth, a.d. 1558-1603, her title to the Crown, 203 ; question as to her legitimacy, ib. n. I; Act passed on her accession, 204 ; importance of the period spanned by her reign, 411 ; her government despotic, ib. ; her ecclesias- tical polity, ib. ; enforces strict con- formity to the established religion, 417; her title to the throne purely parlia- mentary, 421 ; Bull of Pius V. ex- communicating, 422 ; plots against her life, 426 ; statute passed for her protection, id. ; Romish tendencies of, 429, n. 1 ; civil government of, 434 ; her economy, 440 ; her conflict with parliament as to the succession, 443- Empson and Dudley, agents of Henry VII.'s extortions, 343 ; executed by Henry VIII., ib. English (The), origin of, 1 ; constitution of the nation, 7th to nth century, 11; revenge themselves on local tyrants by assassination, 67 ; support William Rufus against the baronage, 75 ; their faithful support of Henry II., 85. English institutions, gradual develop- ment of, 43. English language and institutions, in- herited from our Teutonic ancestors, 3. English laws confirmed by William the Conqueror, 67 ; representative men appointed to report on, ib. ' Englishry, ' famous law of, founded on stat. of William the Conqueror, 67. Entail, law of, 337, n. I. Entick v. Carrington ; general search warrants declared illegal by Lord Camden, 1765, 703. Eorl, distinction between the, and the' Ceorl, 22 ; title probably of Jutish origin, 25, n. ; the word, supplanted by thegn, 26. ' Equitable jurisdiction, .Lord Camp- bell's definition of the meaning of, 169. Escheat and forfeiture of lands, 62. Exactions of Henry VII., 341. Exchequer, The, constitution of the Court of, 146 ; title of members of, ib. n. 1; derivation of the name of, ib. ; sources of income of, 147 ; fiscal matters confined to the, 150 and 151, n. I. Exchequer Chamber, Court of, 151. Excise, on beer and other liquors, im- posed by parliament, 582. Excommunication, no tenant or officer of the King to suffer, without his con- sent, 19. Excommunication from Rome, penal statute of parliament providing against, 375. Ex-officio, the oath, 431. FALKLAND (Lord), supports attain- der of Strafford, 496, n. ; made Secretary of State, 567-569. Ferrers (George), member of parlia- ment 1543, arrested, released by the authority of the Commons, 301-2. Feudalism, germ of, in the relation be- tween the princeps and his comites, 6 ; its gradual establishment, 49 ; be- comes general, 50 ; general through- out Europe, 5 1 ; its originand growth, ib.; Church lands become subject to, 52 ; growth of in England, ib. ; the two chief elements of, 53 ; difference between English and Continental, 54 ; in England a system of tenure only, not of government organization, 55 ; struggle between royalty and, 74 ; decay of, 102. Field (Bishop of Llandaff ), impeached A.D. 1621, 494. Filmer (Sir Robert), his famous ' Patri- arca,' 463, n. 3. Finch (Lord Keeper), advises the exten- sion of ' ship-money ' from seaports to the whole kingdom, 533 ; his judgment in Hampden's ship-money . case, 538 ; impeachment of, 548. Fines on alienation, 61. Fines ordered by Henry I. to be assessed according to the old English laws, 76 ; ' pro respectu militias, ' introduced by Edward I., 148; the remedial statute De militibus, 149 ; not abolished until the reign of Charles II. , ib. First Fruits annexed to the Crown, 401. Fisher (Bishop), refuses to take the oath desired for the maintenance of Henry VHI.'s Royal Succession Act, 400. . Fitzharris (Edward), case of the im- peachment of, A.D., 1681, 499~50o,«. Fitz-Peter (Geoffrey), Earl of Essex, appointed justiciar, 96. Five Members, the impeachment and attempted arrest of, 567 ; articles of the impeachment, 568, n. ; illegality °f> 5^9 > preparations made for the arrest of, 5 7° > arrest attempted by the King with an armed force, 57 2 '> thwarted by the withdrawal of the Members from the House, ib. ; design of the attempted arrest, 575 ; the real cause of the war, 576. 7 16 Index. Five-Mile Act, 1665, 600. Flambard (Ranulf) justiciar in the reign of William Rufus, 74. Fleming (Chief Baron), judgment in Bates' case, 472. Floyd (Edward), violent proceedings of the House of Commons against, 496- -502. Folkland, 12, 13 ; becomes terra regis, 14 ; King assumes the right of dis- posing of the, 53> Foreign merchants granted liberty to travel or dwell in England by Magna Charta, 131. Foreign service, barons deny their lia- bility to, 234. Forest Courts, compulsory attendance at the, abolished by Magna Charta, 120. Forest Laws, Charter issued by Henry III., 137; the clauses of Magna Charta, ib. n. 2 ; harshness of those intro- duced by William the Conqueror, 68 ; introduction of, traceable to Cnut, ib. ; Henry I. upholds the, 77 ; revived by Charles I. , 528 ; heavy fines in- flicted for alleged encroachments, ib. n. 2. Forests, those made by Henry I. re- stored to the realm by Stephen, 82 ; extensions of the royal, annulled by the Long Parliament, 553. Forfeiture, lands of convicted felons, liable to, 62 ; abolition of, for treason or felony, 364, «. Fox's India Bill, 1783; Lord Temple authorized by George III. to protest against it in his name, 653 ; indigna- tion of the Commons at this conduct, ib. Fox's Libel Act, 1792, 705. France, disastrous war with, entered into by Charles I., 515. Franchise, popular basis of the, under Henry IV., 313; restriction of the, 8 Henry VI., ib. (See Reform.) Franchises, or liberties, private, 36. Frankalmoign, or free alms, 58. Freedom of speech, inherent in the constitution ~oi parliament, 294; vio- lation of, in Haxey's case, 295 ; Young's case, 33 Henry VI., 296; Strode' s case,' 4 Henry VIII., ib.; claimed by the Speaker in 1541, 297 ; the privilege of, often violated, ib. ; case of Eliot, Hollis, and Valentine, 5 Charles I., 298 ; confirmed by the Bill of Rights, ib. Freedom from arrest, a privilege of Freedom from arrest — parliament, 299 ; cases 300-305 ; speech of Henry VIII., 3025 first legislative recognition of, 304 ; abuse of the privilege of, ib. Freehold or Free Socage, tenure in, 63. Freemen broadly divided into eorls and ceorls, 22 ; must be attached to some superior, 23. Free Socage or Freehold, tenure in, 63. French Revolution, reaction in the growth of liberty of opinion caused by the, 705. Frithborh (the), or Frankpledge, 34. Fuller (Nicholas), Bencherof Gray's Inn, imprisoned for his argument in the case of two Puritans, 490, n. 1. Fyrd, the, 178; revived, 179- GAME Laws, the, sprung from the Forest Laws of William the Con- queror, 69. Gau, or shire, 5. Gaunt (John of, Duke of Lancaster), unpopularity of his administration, 254- Gavelkind, tenure in, 65. General warrants declared illegal, 176S, 7°3- George I. and II., their indifference to English politics, 641 ; effect on the development of the constitution, ib. George III., A.D. 1 760-1 820; his long struggle against the ministerial system, 649 ; disastrous effects of his policy, ib. ; his wretched education, ib. ; his determination to govern, ib. ; his secret counsellors, 650 ; his arbitrary measures, 651 ; organizes an opposi- tion to his ministers in parliament, 652 ; his great influence during Lord North's administration, 653 ; pre- pared to use the royal veto against bills, 654 ; abruptly dismisses the Coalition Ministry, 655 ; his critical relations with parliament, ib. ; makes William Pitt premier, ib. ; his per- sonal influence diminished, ib. ; his refusal to pass any measure for the relief of the Roman Catholics, 656 j his dislike of Fox, ib. Gerefa, the, probably chosen in the folkmoot, 17, ?i. German element pre-eminent in the English people, I. Index. 717 Germans, military valour of the, 6 ; respect paid to the women, ib. ; women celebrated for chastity, ib. ; the tie of kindred strong, ib. Germany, in the time of Tacitus divided amongst independent tribes, 4, Gesith, the, 22. Glanvill (Ranulf) justiciar in reign of Henry II., 87, n. 2. Grand Assize, the, instituted by Henry II., 87. Grand Jury, the, development of, 160; present composition of, ib. n. 3. Grand Remonstrance, the, laid on the table of the House, 1641, 559; Court opposition to it, ib. ; seven days' de- bate'on, ib. ; carried by eleven votes, 560 ; Mr. Forster's description of, ib. ; its preamble and principal clauses, 561-65 ; motion to print it, 566 ; Mr. Palmer's 'protest, '2$.; ordered to be printed, 567' Grand Serjeanty, tenure by, 63 ; of the same nature as the fiefs of office on the Continent, ib. and n. 3. Great Contract, the, proposed measure between James I. and his parliament, 478>; falls through, 479. Greenwood (John), a clergyman, exe-, cuted for writing seditious books, 432. Grey (Earl) vindicates the proposal of creating new peers to pass the Reform ' Bill, 670. Grindal (Archbishop, 1575-6), seques- tered from his see, 430. Grotius, the claims upheld in his ' Mare Liberum,' 532> »• T - Guilds, analogous to our modern clubs, 18; origin of, ib.; the 'frith-gild,' ib. ; the merchant guild, 19. Guizot (M.), remarks of, on the House of Commons, 240, «. I. HABEAS Corpus, the essence of, con- tained in Magna Charta, 126 ; privi- lege of parliament not available in case of attachment for refusing to obey a. writ of, 305 ; any person com- mitted by the Privy Council to have a writ of, on application to the King s Bench or Common Pleas, 552; 'the Act of, 1679, 589 ; review of the ancient remedies for illegal detention before the passing of, ib. ; their inade- quapy, 590 ; provisions of the Act, 31 Car' II. c. 2, 592 ; of the Bill of Rights, and 56 Geo. III. c. 100, 594 ; Ander- son's case, ib.; 25 & 26 Vict. u. 20 passed in consequence, ib. Hales' case, question raised of the dis- pensing power of the King, 611 ; de- cision of the judges in favour of the prerogative, ib. Halifax (Charles Montagu, Earl of), case of the impeachment of, a.d. 1710, 500, n. Hall (Arthur), M.P., expelled from the House, 455. Hampden (John), refuses to pay ' Ship- money,' 533 ; his career, ib. n. 1 ; proceedings against in the Court of Exchequer, arguments on the case, 534 ; judgment given for the Crown, 536 ; becomes universally popular^ 538 ; his exertions at the elections to the Long Parliament, 546 ; the judg- ment of the Exchequer against, annulled by the Long Parliament, 551; his firm opposition to Charles I., Harold, Earl, recommended by Eadward the Confessor to be his successor, 45 ; elected by the Witan and crowned, ib. ; defeated and killed by William the Conqueror, 46. Harrison's description of England, A. D. I577,458- Hastings (Warren) impeached, a.d. 1788, 501, n. Haxey (Sir Thomas), prosecution of, A.D. 1397, 279. Henry I., 1100-1135, issues a Charter of Liberties, 75 ; its historical and constitutional importance, 77 ; re- ceives the support of the native Eng- lish, 78 ; marries a niece of Eadgar iEtheling, ib. ; defeats his rebellious barons, ib. ; his severity in punishing offences against the law, 80 ; his charter referred to at the council of St. Alban's, 105 ; his election to the Crown, 189. Henry II., 11 54-1 189, accedes to the throne without opposition, 84 ; strength of his Continental posses- sions, 85 and ib. n. 1 ; the founder of the Angevin dynasty, 85 ; confirms the Charter of Henry I., 86 ; esta- blishes law and order, ib. ; his policy, ib. ; two great constitutional results of his reign, ib. ; strong individuality of, 86, n. 2 ; legal improvements made by, 87 ; his ministers, ib. n. -2 ; the administrative reforms of, 88 ; greatly augments the power of the Crown, 89.; his contest with the clergy, ib. ; his succession to the Crown, 192. 7i8 Index. Henry III., A.D. 1216-72, accession, 136 ; his first Charter, ib. ; his second Charter and Charter of the Forest, 137 ; declared of age, 139 ; his third Charter, ib. ; his election to the throne, 195. Henry IV., the Crown entailed on, and his issue by Act of Parliament, 198. Henry VI., A. D. 1422-60, 32, ». ; depo- sition of, 199 ; appointment of a re- gency on his accession, 321, et seq. ; second and third regency, 324. Henry VII., A.D. 1485-1509, general assent of the nation to his accession, „ 200 ; the Crown entailed on him and his issue, ib. ; the laws of, 339 ; his hatred of the House of York, 340, n. 3 ; his exactions, 341 ; so rich as to be practically independent of parliament, 343. Henry VIII. , 1 509-1 547, form for the co- ronation of, 197, n. 3 ; parliamentary settlements of the succession in the reign of, 201 ; devises the Crown, 203 ; his speech on the privilege of the Commons of freedom from arrest, 302 ; great outward respect of, for the law, 333 ; servility of parliament to, 344 ; except in the matter of taxation, ib. ; his illustrious victims, 350 ; his pro- clamations given the force of law by Act of Parliament, 351; his personal popularity, 353 ; disposed to curb ecclesiastical abuses, 383 ; but op- posed to doctrinal changes, 384 ; his book against Luther gains him the title of Defender of the Faith, ib. ; his divorce from Catherine and mar- riage with Anne Boleyn, ib. ; breach with Pope Clement VII., 385 ; de- clares the oath taken by the clergy to the Pope to be contrary to the oath made to him, 386 ; first Royal Succes- sion Act of, 399. Heptarchy, the word not strictly accu- rate, 8, n. Hereditary kingship of our latest and earliest times compared, 208, n. 2. Hereditary peerage, Lord Redesdale's opinion of what creates a, 213, n. 1. Hereditary right, growth of the doctrine of, 188 ; doctrine of indefeasible, 205. Hereditary succession to the Crown always liable to exception, 197. Heresy, statute passed against, 2 Henry IV., 379 ; revives at beginning of 1 6th century, 382. Herdoga , a title of the Teutonic leaders, 7. High Commission Court, establishment of the, with formidable powers, 431 j complaints against, 475 ; under Charles I., 529 ; abolished by the Long Parliament, 553- Hildebrand's scheme of ecclesiastical feudalism not acceded to by William the Conqueror, 69. 'Histriomastix,' a work published by William Prynne, 530. Hlaford, the, individually responsible for his men, 35 ; private jurisdiction of, 36. Homage of tenant to his lord, 58. Hooker's ' Ecclesiastical polity,' 458, and 459, n. I. House of Commons, the, De Montfort the founder of, 220 ; temp. Edward I. did not share in all legislation, 228 ; two elements of, knights and burgesses, 238 ; union of in one house, 239 ; the predominant autho- rity in the State, 242; growth of, very gradual, 243 ; right of, to concur in legislation, 245 ; establish three great rights, 246 ; impeach- ments by, 254 ; packed with the Duke of Lancaster's supporters, 255 ; con- sulted by Edward III. on questions of peace and war, 256 ; exercise active control over various affairs of State, 258 ; exclusion of lawyers from the, 2 59 j great increase in the power of, 1377-89, 260 ; right of, to examine public accounts and appropriate, the supplies established, 261, and 262, n. 2 ; conduct of, in Sir Thomas Haxey's case, 279 ; grant Richard III. a re- venue for life, 280 ; less independent during the latter half of the 1 5th cen- tury, 283; growing importance of, 284, and ib. n. ; money bills to origi- nate in, . 286 ; inquire into public abuses and the royal administration, 291; petition of 31 articles in 8 Henry IV., ib.; consulted in ques- tions of national interest, 292 ; right of impeachment, 293 ; privileges of, 294, et seq. ; Ashby v. White ; claim of, to determine the rights of electors, 310 ; members of, required to be of gentle birth by 23 Henry VI., 315 ; property qualification of members of, ib.; abolished in 1858, 316; largely packed by nominees of the Crown, 336 ; reviving independence of, under Edward VI. and Mary, 367 ; hostile spirit of, towards the clergy, 380; petition for a scrutiny into ecclesias- tical abuses, 385 ; anxious for eccle- Index. 719 House of Commons — siastical reforms throughout Eliza- beth's reign, 414 ; Puritan ascendancy in, 441 ; conflict with Elizabeth as to settlement of the succession, 442 ; and as to ecclesiastical reforms, 443 ; cause of the general submissiveness of, under Elizabeth, 448 ; successful opposition of, to monopolies, ib. ; vindicate their privileges in many cases, 452-55 ; assert their right to originate money bills, 456 ; vindicate their privileges against James I., 465 ; draw up a protestation of their rights and liberties, 466 ; members of sent to the Tower by James I., 483 ; re- vival of impeachments by the, 496 ; petition against Popery and the Span- ish match, 503 ; menacing language of James I. to, 504 ; remonstrance of, ib. ; protestation of, Dec. 1621, 505; dissolved and members imprisoned by James I., 506 ; committee of griev- ances of, 516; resolutions of, ib.; draw up the Petition of Right, 517 ; irritation of, with Charles I., 525 ; the three resolutions of,' ib.; Sir John Eliot, Selden, and other eminent members of, imprisoned by Charles I. , 526 ; raise the question of privi- lege, 527 ; demand a redress of griev- ances before voting supplies, A.D. 1640, 541 ; committee appointed to confer with the Lords on grievances, 542 ; peculiar privileges of initiating money bills, &c, discussed, 543 and n. ; assist the Scots against Charles I., 548; pass the Triennial Act, 549; the ' Grand Remonstrance,' 559-60 ; the question of allowing the minority to protest against a decision of, set- tled in the case of Mr. Palmer, 566 ; impeachment and attempted arrest of the Five Members by Charles I., 567 ; apply to the city for a guard, 569 ; the articles of impeachment voted a scandalous paper by, 572 ; collisions with the House of-Lords under Charles IE, 579, »• l > petitions to, 583-5 ; appropriate supplies to specific pur- poses, 585-7; appoint a commission to inquire into the public accounts, c88 • resolutions of, declaring the throne vacant, 1688-9, 616 ; suggest conditions before calling William and Mary to the throne, 618 ; draw up the ' Declaration of Right,' 619 ; ex- clusion of placemen and pensioners from, 643 ; exclusion of judges from, House of Commons — 645 ; protest against the use of the King's name in debates, 653 ; review of the changes in its numbers, compo- sition and political influence, 672 ; right to commit for breach of privi- lege, 685. (See Parliament, Privi- lege). House of Lords, the, origin of its judi- cial character, 1 74 ; development of the 'majores barones' into, 212; slow growth of the hereditary cha- racter of, ib. ; bold language of, and unanimity with the Commons, 263 ; number of peers present in the par- liament of 1539, 352, n. 1 ; opposition in, to the changes in religion made by Elizabeth, 414; Charles I. attacks the privileges of, 513; their right of rejecting or amending money bills originating in the House of Commons discussed, 543, n. ; collisions with the Commons as to original jurisdiction and general jurisdiction over appeals from courts of equity, 579, «. 1 ; Ro- man Catholics excluded from, by the Parliamentary Tests Act, 1678, 597 ; dissent from the Commons' resolu- tions declaring the throne vacant, 1688-9, 617 j withdraw their opposi- tion and vote William and Mary to the throne, 618 ; unwilling abso- lutely to condemn the 'dispensing power,' 623, n. ; changes in the num- bers, composition, &c, of, 665-669 ; its present political position, 669 ; oppose the Reform Bills of 1831-32, 670 ; extraordinary creation of peers threatened, ib. (See Parliament, Wi- tenagem6t). Household suffrage re-established by the Reform Act of 1867, 319. . Hubert (Arbp.), speech of, on the coro- nation of John, declaring the Crown to be absolutely elective, 194. Hundreds or Wapentakes, townships grouped into, 15 ; their organization,^. Hunne (Richard), case of, 383. Hus-carls, the, of Cnut, 179. IGNORAMUS, the endorsement of the grand jury when finding ' no true bill ' 160, n. 3. Illegal commitments under Eliza- beth, 437 ; remonstrance of the judges against, ib. Illegal exactions, Statute Petition of Right, 3 Charles I., against, 521. ?20 Inaex. Impeachments by the Commons, case of Michael de la Pole, Earl of Suffolk, 264 ; power of, exercised, 293; the Commons the accusers, the Lords the judges, ib. ; the right of, dormant during the Tudor period, 339 ; difference between, and Bills of Attainder, 350 ; revival of, a.d. 1620, 493 and ib. n. 1 ; important cases of, A.D. 1626-1804, 495-501, n. ; a pardon under the Great Seal not to be pleadable to, 633. Impositions, illegal, of James I., remon- strated against, 474 ; denounced by parliament, 1614, 482. Impressment declared illegal by the Long Parliament, 553> an 186 ; the bill for regulating the, in- troduced and passed in the Commons, 577 ; resolute refusal of Charles I. to pass it, ib. Milton's Areopagitica, 699. Ministers, attempt to establish the re- ■ sponsibility of, to parliament, 253 ; established, 501, n. ; Lord Macau- lay's account of, 641 ; increased secu- rity of the Crown under, 642 ; strug- gle of George III. against, 649 ; right of dismissing, asserted by the Queen in her memorandum to Lord Palmer- ston, 659 ; practically rests with the Premier and Cabinet, ib. Mitchell (Sir Francis) impeached and punished, A.D. 1621, 494. Mitchell (Mr. John), declared incapable . of being returned to parliament, 684, n. 'Modus Tenendi Parliamentum,' views of the author on the Lords and Com- mons, 243, n. Mosgths, the, 12. Mompesson (Sir Giles) impeached and punished A.D. 1621, 494. Monarchy, full development of the kingship as a, by Henry II., 86. Monasteries, dissolution of the smaller, 402 ; report of the Commissioners on the, ib. ; the larger, dissolved, 404 ; was their suppression justifiable ? 405. Money bills to originate in the Com- mons, 286. Money, coiners of bad, to be punished, 77- Money, economy, early establishment of a, in England, 273. Monopolies, in general, contrary to Mag- naCharta, 127; successful opposition of the House of Commons to, A.D. 1601, 448-450; Act 21 Jac. I. c. 3, against, 507; re-established by Charles I.. 528. Montagu (Lord), tolerant speech of, re- garding the persecution of the Roman Catholics, 418. Index. 725 Montesquieu on the English constitu- tion, 5, n. More (Sir Thomas) refuses to take the oath devised for the maintenance of Henry. VIII. 's Royal Succession Act, 400. Morice (Attorney of the Court of Wards) introduces a bill in the House of Com- mons for the reform of the Ecclesias- tical Courts, 44.7 ; displeasure of Elizabeth with, imprisoned and de- prived of office, 448. Mortmain, fraudulent gifts in, restrained, 138, 139, n. Morton (Bishop and Chancellor), his celebrated ' Fork ' concerning the levying of benevolences, 343. Mortuaries, statute in restraint of, 387. Mund, original signification of, 28. Murder, anciently restricted to secret killing, 67, tf.5. Murray (Mr. Alexander), case of, 1751, before the House of Commons, 985. Mutilation substituted by William the Conqueror for the punishment of death, 68. NATIONAL Assembly, a, or 'commune concilium regni,' always existent in England, 210. National Council, the, how to be sum- moned, 123 ; composition of, under Henry II., 211, n. 4 ; gradually be- came an assembly of the 'greater barons' only, 212; developes into a hereditary House of Lords, to. ; first instance of the summons of representa- tives to, 214 ; four instances of County representation in, prior to De Mont- fort's Parliament, 215'; first called ' Parliament' A.D. 1246. , {See House of Lords, Parliament.) National Debt commenced in Charles II. 's reign, 586, n. ; its growth -and attempts to reduce it, ib. 'Nativi,' gradual emancipation of the, 274. Naturalization of Aliens, 631, n. 2. Nee super eum ibimus, nee super eum mit- temus, inadequately translated in the statutes, 128 ; explained by Sir Ed- ward Coke and Dr. Lingard, ib. 'Ne exeat regno, ' restrained by Magna Charta, 118; the prerogative of pre- venting any subject quitting the realm, . by, still retained by the King, ib. ; its present practical use, 120. Neile (Bishop), abusive language in the Neile — House of Lords towards the House of Commons, 482. Nevill (Sir Henry) advises James I, to summon a parliament, 480. Neville (Mr. Justice) dismissed from his office by James II., 310, n. 3. New Forest, Hampshire, formation of, by William the Conqueror, 68. Newspapers, the first, 698 ; quickly multiply when freed from the censor- ship, 701 ; the stamp duty on, adopted 10 Anne, ib. {See Debates in Parlia- ment — Press.) ' Nisi per legale judiciumparium suorum, vel per legem terrce / these words vari- ously interpreted, 129. Nisi Prius, judges of, 153. Nobility, the increasing power of the, 43 ; destruction of many of the old, in the Wars of the Roses, 335 ; new nobility created who show less inde- pendence, ib. Noblesse, non-existence of, in England, 240. Nonconformists, trials of, for publishing 'libels,'432 ; Act against Protestant, 433 ; a series of odious Acts passed by the Pensionary Parliament against, 594 ; the religious test in the ' Cor- poration Act,' 595; — 'Test Act,' 25 Car. II. c. 2, ib. ; Charles' ' De- claration of Indulgence,' 596; can- celled by request of the Commons, 597 ; the Conventicle Act, 1664, and the Five-mile Act, 1665, 600; se- verity of the persecution of, 60 1 ; attempts at reconciliation between, and the Church, ib. ; growth of religious liberty, 692 ; Toleration Act, 1 William and Mary, c. 18, parsed, ib. ; Acts against occasional conformity and schism, 693 ; annual Indemnity Acts, in favour of, under George II., ib. ; the penal religious code relaxed under George III., ib. ; toleration upheld by the House of Lords in the case of the Corporation of Lon- don and the, 1767, 694; their com- plete civil enfranchisement, 696 ; Dissenters' Marriage Bill, 1836, 696; Universities Tests Act, 1871, ib. Non obstanles, introduction of, by the Pope, 289. Norfolk, case of the county of, election inquiry, 1586, 308. Norman Conquest, the, A.D. 1066, 45; the continuity of the English constitu- 726 Index. Norman Conquest — tion not broken by, 47 ; the effects of, 48. Normandy, separation of, from Eng- land, 101. Normans (the), their relationship to the Germans, 3 ; their origin and descent, 47 ; their absorption in the English nationality, ib. ; influence of, on the English before the Conquest, 48 ; their oppression and insolence cause insurrection, 50. Nbrth (Lord), great influence of George III. during his ministry, 1770-82, 653 ; compelled to resign, 655. North Briton (the), 651; apprehension of Wilkes and others on a general warrant, 703. Nowell's case, 1553, controverted elec- tion, 308. Noy (Sir William), deserts the popular party, 527 ; made Attorney-General, ib. ; originates the idea of ship- money, 532. OATH to the Pope taken by the Clergy declared by Henry VIII. to be con- trary to the oath taken to him, 386 ; to maintain the succession, 399, 401 ; of supremacy and allegiance, copy of the, 412 ; all the bishops except one refuse to take it, 417; a new test, appointed by Convocation, 545 ; of allegiance enacted by the Bill of Rights, 625. O'Brien (Mr. Smith) declared ineligible to sit in parliament, 684, n. O'Donovan Rossa declared incapable of being elected to parliament, 684, n. Oligarchy, occasions on which the go- vernment of England has been placed in the hands of an, 218, n. 1. Onslow (Mr. Speaker), address to Queen Elizabeth, 457. Opposition in parliament organized by George III., 653. Ordeal, facts in law cases decided by, 38 ; was of three kinds, 39 ; abolished, 161. Ordinances, difference between statutes and, 251. 'Ordinances of the Staple,' 27 Ed- ward III., 252. Ordinary, the term, 387. Ordination of Villeins, 92. Orford (Edw. Russell, Earl of), case of the impeachment of, a.d. 170 1, 500, n. Ormond (James Butler, Duke of), case of the impeachment of, A.D. 1715. 501, n. Osbaldison (Master of Westminster school) punished by the Star Chamber for writing contemptuously of Arch- bishop Laud, 529. Outlawry, signification of, 127. Oxford (Robert Harley, Earl of), case of the impeachment of, A.D. 1715. 501, n. Oxford University asserts the necessity of passive obedience, and condemns the works of Milton, &c, 1683, 605. PAGUS, the Gau, or shire, 5. Palmer (Mr.), M.P., protests against the printing of the Grand Remonstrance, 566 ; committed to the Tower by the Commons, ib. Palmerston (Lord), the Queen's memo- randum to, on the relations of a Secretary of State to the Crown, 658 ; removed from the foreign secretary- ship in 1851, 659. Pardoners and Proctors punished as vagabonds, 388. Parishes, error regarding the number of, made by the parliament of 1371, 249. Parker (Archbishop), his books of ' Ad- vertisements,' or regulations for the discipline of the clergy, 429. Parliament, power of, to regulate the succession asserted by the Revolu- tion of 1688, 206 ; origin of, c. vii. p. 210 ; four instances of county representation in parliament, prior to De Montfort's, 215 ; first use of the name Parliament as applied to the National Council, 216 ; parlia- ment of Oxford 1258, 218 ; De Mont- fort founder of the House of Com- mons, 220 ; representatives of towns summoned to parliament, ib. ; transi- tionary period in the constitution of parliament, 1265-95, 22 4 5 the parlia- ment of the latter years of Henry III. 224 ; parliaments under Edward I. 225; parliament of Shrewsbury 1283. 227 ; perfect representation of the ' Three Estates of the Realm,' 229 , clergy represented in, 230 ; but cease to attend in 14th century, 231 ; ex- clusive right of parliament to impose taxation, 236 ; growth of, 237 ; di- vided into two houses, 238 ; knights at first distinct from the burgesses, 239 ; its regularity of meeting, reign Index. 727 Parliament — of Edward III., 245; its annual, meeting decreed by statute, 246; first protest on the rolls of, 253 ; im- peachment by, 254; the ' Good Parlia- ment,'^.; a packed, 255 ; consulted by Edward III. on questions of peace and war, 256 ; treaties submitted for approval of, 258 ; proceedings of, 10 Richard II., 264 ; impeachment of Michael de la Pole, ib. ; plot of Richard II. against, 266 ; revolution- ary proceedings of the 'Lord's Appel- lants ' in, 267 ; servility of, 280 ; usurpation of the powers of, by eigh- teen commissioners, 281 ; deposes Richard II., and grants the Crown to Henry IV., 282 ; under the Houses of Lancaster and York, 283 ; settle- ment of the internal constitution of, 283 ; first collision between Lords and Commons, 286 ; the King not to notice matters pending in, ib; the Unlearned Parliament, 291 ; privileges of, 294, et seq. ; under Edward IV. and Richard III. , 329; long suspen- sion of, in Edward IV. 's reign, 329 ; subserviency of to Henry VIII., 334 ; seldom summoned by Henry VII., 343 ; the number of peers present in the parliament of 1539, 352, 11. 3 ; series of statutes passed by, to check the aggressions of the Pope, 372, et seq.; the 'Reformation Parliament' and its statutes, 385, 386, «• 1 ; note on the parliament of Henry VIII. and its growth into that of Charles I., 434. "■ 3 5 conflicts with the Crown in Elizabeth's reign, 441 ; causes of general submissiveness of, under Elizabeth, 448 ; its victory in'1601 over monopolies, ib. ; privileges of, vindicated under Elizabeth, 451 ; Tames I. attempts to rule without, 479; a new one elected a.d. 1614, ,4.82 • its strong national character, ib and n. I ; dissolved, called the 'Addled Parliament,' 483; mem- bers sent to the Tower, ib. , James's third parliament, 1620, 493 ; dis- solved and members imprisoned, 506 ; James's fourth parliament, 506 ; Charles I. calls and dissolves abruptly two parliaments, 509 ; members im- prisoned, 512 ; Sir John Eliot, Sel- den and other members imprisoned, 526 ; they raise the question of privi- lege, 527 ; Charles governs eleven years without, 527 ; the fourth or Parliament — ' Short ' Parliament, 1640, 541 ; its moderation and loyalty, ib. , dissolved after three weeks' session; 544 ; the Long Parliament summoned, 1640, 546 ; its characteristics, ib. ; assists the Scots, 548 ; passes the Triennial Act, 549 ; Acts passed against the dissolution of, without its own con- sent, 555 ; end of the constitutional struggle of Charles with, 577 '> c0 ^" lisions between Lords and Commons „ under Charles II., 579 ; right of the subject to petition to, 583-85 ; the Parliamentary Test Act passed 1678, 597 ; servile character of James II. 's first parliament, 606 ; the ' Conven- tion parliament,' 615 ; Ministerial responsibility to, 642 ; critical rela- tions of, with George III., 655; review of the enactments on the dura- tion and intermission of, 679 ; privi- leges of, placed at the disposal of the executive for the oppression of popular liberty, 682 ; note on the ex- pulsion and disqualification of mem- bers of, 683, ». ; publication of the debates of, 686 ; conflict with Lord Mayor, &c. , of London, 688 ; con- flict with the courts of law as to publication of papers affecting cha- racter, 690. {See Debates. ) Parliamentary treasurers appointed during the minority of Richard II., 261. Parry (Dr. ), M.P., expelled from the House of Commons; 455. Parliamentary government not fully established till the reign of George L, 639. Patents granted by the Crow^i under an exception in 21 Jac. I. c. 3, 507, n. 2. Peacham (Edmond), case of, for treason- able writing, •without publication, 486 ; C. J. Coke's opinion, 487. Peel (Sir Robert), his short Premier- ship in 1834, 657; declines office on the 'Bedchamber Question,' 1839, ib. ; becomes Premier 1841, 658. Peerages, creation of, by letters patent, first introduced 10 Richard II., 213 ; several precedents of lay, for life only, Richard II.-Henry VI., but none since, ib. ; for life only attempted to. . be reintroduced, ib. n. 3. Peers, a great council of, summoned at York by Charles, 1640, 546 ; their 728 Index. Peers — numbers at different periods from HS4, 665-68. - Peine forte et dure, origin and abolition of, 161. Pembroke (William Marshall, Earl of), regent during minority of Henry III., 136. Penry (Henry), trial of, 432. People, the, ranks of, 21 ; wretched condition of, during Stephen's reign, 83 ; enjoy orderly and legal security under Henry II. , 88 , rising of, against the taxation of Richard I., 94 ; Magna Charta, an act of, 98 ; its promises and guarantees to, ib. ; se- curities against the oppression of, contained in Magna Charta, 126. Persecuting statutes against Roman Catholics and Protestant sectaries, 417. Personal liberty, how assured, temp. Henry VII., 338. Personal property first taxed by Henry II., 147. Peter's pence, payment of, to the Pope forbidden, 397-399, n. 1. Petit jury introduced,- 161. Petit Serjeanty, tenure by, 63. Petition of thirty-one Articles, presented by the Commons, 8 Henry IV., 291. Petition of Right drawn up by the Com- mons, 517 ; amendment proposed to it bythe Lords, rejected, ib. ; speeches of Alford, Pym, Coke and Martyn on it> 5 X 7> S r 9 > passed by the peers without material alteration, 519 ; the King's first answer to, 520 ; royal as- sent given, ib. ; the text of the statute, 52I-24. ' Petitioners ' and ' Abhorrers,' 584. Petitions to the King or parliament re- gulated by Act 13 Car. II. 583 ; the right of the subject to present peti- tions, ib. ; historical development of the right, ib. ; maintained by the Bill of Rights, 623. Petitions of parliament, the Commons endeavour to procure the King's assent to, before voting supplies, 285 ; as- sume the form of bills, 287. Pigg v. Caley, the last case in which vil- leinage was pleaded, 277, n. A. Pigott (Sir Christopher, M.P.) expelled from the House of Commons by re- quest of James I., 470. ' Pilgrimage, the, of Grace,' and other rebellions on the suppression of the monasteries, 404 ; ruthlessly stamped out, ib. n. 1. Pitt (William) entrusted by George III. with the formation of a ministry, 665 ; gains the support of the nation, ib. ; advocates parliamentary reform, 1782- 85, 676. Pius V., bull of, deposing and excom- municating Elizabeth, 422 ; injured those it was designed to serve, ib. ; statutes passed in reply to, 423. Place, bill of, 1742, 645. Plantagenet. See Angevin. Pleas of the Crown, no sheriff, con- stable, &c, to hold, 114 ; importance of this as marking an era in our crimi- nal judicature, ib. Pledges, principle of, amongst the Anglo-Saxons, 34. Pluralities, statute forbidding, 388. Pole (Edward and Arthur) convicted of high treason, 422. Pole (Michael de la, Earl of Suffolk), impeachment of, 264. Police organization of the Anglo-Saxons, 178 ; expansion of the ancient organi- zation, 181 ; supplemented by Watch and Ward, 183. Poor laws, the, Act of 1601, relief granted in ancient times, tithes, &c, &c, see note, 450-453. Pope, the, William the Conqueror re- fuses to do fealty to, for the Crown of England, 69 ; struggle of John with, 103 ; exorbitant claims and pecuniary exactions of, persistently resisted by the kings and people, 370 ; growth of the power of, from the Conquest till Henry III.'s reign, ib. ; John concedes to, the right of nominating ecclesiastical dignitaries, 370 ; claims and exactions of, resisted by Ed- ward I., 371 ; series of statutes passed to check the aggressions of, 372 ; statute of provisors 25 Edward III. against, 373 ; statute forbidding cita- tions to Rome by the, 374 ; re-enact- ment of former prohibitions against, with special provisions against excom- munication, 375 ; struggle of the Crown with Boniface IX., ib. • the statute of Praemunire enacted, 376 ; Boniface yields, 377 ; vices and exac- tions of, disgust even the orthodox, 382 ; annates taken from, 392 ; ap- peals to, from the spiritual judges in England forbidden, 394 ; payment of Peter's pence to the, forbidden, 397 ; royal proclamation against, 1534, 400 ; despatches Jesuits to reconvert England, 424 ; petition of the House Index. 729 Pope — of Commons against the growing power of, 503. Popish plot (the), 597, «. 2. Portland (Wm. Bentinck, Earl of), case of the impeachment of, a.d. 1701 500, »• Post-nati case, the, 7 Jac. I., 471, „. 2 Powell (Mr. Justice), judgment in the ' case of the Seven Bishops,' 613. Praecipe, writ of, provision made in Magna Charta as to its issue, 116. Praemunientes clause, clergy represented in parliament under the, 230. Praemunire, origin of the offence known as, 375, n.i; thestatute of, i6Richard II- c - Si 37 6 ; the whole clergy in a, 389 ; and also the laity, 390 ; a gene- ral pardon by Acts of Parliament, 391- Preachers, a bill passed by the Lords against unlicensed, 379 ; petitioned against by Wycliffe, and rejected by the Commons, ib. ; but nevertheless placed in the Statute Book, ib. n. Prerogative of the Crown, exclusion of members of parliament from the house not a, 444. Prerogatives of the Crown, 646. Presbyterian system, attempt to intro- duce the, into England, 433. Press, the liberty of the, restraints of the censorship, 697-99 ; Milton's Areopagitica, 699 ; the Licensing Act of 1672, 699 ; anything published concerning the government declared to be criminal by the judges, 700; renewal of the Licensing Act, 1685, 700 ; its final expiration, ib. ; still subject to restraint, ib.; the Stamp Act, 701 ; and the law of libel used to suppress the, 702 ; its complete free- dom established since 1832, 706. Priests. See Clergy. Primer seisin, the relief payable by a tenant-in-chief, 60. _ Primeval institutions of the leutomc race, 4. ,,. . . Printing and bookselling, restrictions on, under Elizabeth, 439. Printing, penalties attaching to dis- qualified persons, under the Stewarts, 698. Princifes, justice administered by, 5. Privilege of Parliament, 294 ; cases of Ferrers and Smalley, 452 ; of Nowell and of the county of Norfolk, 453 ; Storie's case, 4545 Copley's case, ib.; Hall's case, 455 ; Dr. Parry's case, Privilege of Parliament — 455; Bland's case, ib.; Long's case, ib. ; James I. on, 504 ; question of, raised on the • imprisonment of Sir John Eliot, Selden, &c, by Charles I., 5 2 7 \ right of the Commons to commit for breach of, 685. Privy Council, personal jurisdiction of the King continued by him in his, 166 ; a series of statutes passed in re- straint of the, 170 ; legislative cha- racter of the, 175; judicial powers of the, ib. ; attempted revival of its ancient authority by the Act of Settle- ment, 640. Probate fees, statute in restraint of, 387. Proclamations of Henry VIII. given the force of law by statute, 35 1 ; the statute repealed by Edward VI., 359 ; still continued to be issued, 362 ; under Elizabeth, 439, and ib. n. 3 ; complaints of the abuse of royal, 475 ; answer of the judges as to the legality of, 477 ; numerous and oppressive, issued by Charles I., 529. Proctors and , Pardoners punished as vagabonds, 388. ' Provisions of Oxford,' A.D. 1258, 218. Provisors, statute of, 25 Edward III., 258. Proxies in the House of Lords discon- tinued, 1868, 671. Prynne (Wm.), severe sentence on, for publishing his ' Histriomastix, ' 530 ; sentence of the Star Chamber for publishing other works, 531 ; popular sympathy with, ib. ; liberated by the Long Parliament, 548. Public accounts, commission appointed by parliament to inquire into the, 588. Punishments under early English law, 40 ; severity of, in reign of Henry I., 80. Puritans, persecution of the, 428 ; their loyalty, ib. ; their conventicles, 430 ; attempt to suppress them, ib. ; attack the Episcopacy, ib. ; 'libellers' punished with death, 432; political results of the persecution of the, 434 ; ascend- ancy of, in the House of Commons in Elizabeth's reign, 441 ; become organized and powerful, 460 ; their aims and wishes, ib. ; their ' millenary petition' to James I., 461. Purveyance, provision as to, made by Magna Charta, 132 ; the abuses of, ib. ; prerogative of, resigned by Charles II., ib. ; restricted by the ■ Long Parliament, 553- 73° Index. Pym (John) elected for Calne, 48.2, ».; his speech in the Long Parliament on the state of the kingdom, 547 ; de- nounces Strafford, ib. ; repeated at- tempts on his life, 557 ; his firm op- position to Charles I., 558 ; motion of, on the new army plot, ib. ; his speech in answer to the articles im- peachingthe ' Five Members,'57°-7 2 ' QUAKERS allowed to substitute an affirmation for an oath, 3 &4 William IV., 696. Queen consort, position of, 28 ; her privileges and possessions, ib. Queen regnant, doubts as to the consti- tutional powers of a, 367 ; settled by Act of Parliament, ib. Quia Emptores, sub-infeudation for- bidden by the statute of, 62 ; the statute of, 228. RALEIGH (Sir Walter), public opinion on his execution, 492. Rapes, Sussex divided into, 15, n. Reform, scheme of, drawn up in Stephen's reign, 84 ; fully carried out by Henry II. , 87 ; commission of, ap- pointed, temp. Richard II. , 265 ; Act of, 1867 (30 & 31 Vict. c. 102), 319, n. 4 ; advocated by Lord Chatham in 1766, 675 ; Wilkes' scheme of, 676 ; and Wm. Pitt's, ib. ; question of, re- vived after the peace of 1815; 676; passing of the Act of 1832, 677 ; its principal provisions, ib. ; the Act of 1867, 678 ; tabular statement of the increase to constituencies, 678, n. Reform Bills of 1831 and 1832, opposi- tion to, in the House of Lords, 670 ; overcome by threatened creation of new peers, ib. Reformation (the), 369-410 ; under Henry VIII., political rather than religious, 369 ; doctrinal changes under Edward VI. and Elizabeth, ib. ; causes of, long in operation, ib.; in- fluence of Luther's writings, 384 ; some reform of the ecclesiastical sys- tem inevitable, ib. ; precipitated by the Pope's action in Henry VIII. 's divorce suit, ib. ; doctrines of the An- glican Church declared by Henry, 407 ; actual reformation in religion under Edward VI., 409 ; considerable opposition to, ib. ; persecution, 410 ; re-establishment of the Papal religion under Mary, 1553-58, 410 ; the Re- ' Reformation — formation promoted by the Marian persecution, ib. Regal Office, theory of an inherent paramount power in the, repugnant to the ancient constitution, 459. Regencies, history of, 319, et seq. ; acts passed, 325-28. Registration of Births, Marriages, and Deaths, established, 696. Relief 'and primer seisin, 60. Reliefs, mitigation of by Henry I., 76 ; the sum defined by Magna Charta, 108. Religious houses, act passed 35 Edw. I. to prevent superior resident abroad from levying taxes on, 372. Religious liberty not formerly recognized by the Constitution, 434, and ib. n. 4. Representation, defects in the system' of, 673. Requests, Court of, supposed origin of the, 175, n. 4. Revenue, sources of, 146 ; expedients of Charles I. to raise a, 527 ; of the Crown, 660. Revolution of 1688 (the), its salutary consequences, 620. Revolutionary period 1642-60, results of the, 577-80. ' Rex Anglice,' John first called, 188, n. 3. Richard I., 1189-99, an absentee king, 93 ; excessive taxation of the country by, ib. ; summary of his reign, 97 ; his right of succession to the throne, 193. Richard II., A.D. 1377-99 5 constitu- tional importance of his reign, 259 ; his despotism and deposition, ib. ; the three periods of his reign, 260 ; his partiality for favourites, 264 ; his arrogant behaviour to parliament, ib. his plot against parliament, 266 ; ap- parent harmony of, with parliament, 278 ; despotic measure of, 279 ; ap- points commissioners who usurp the power of parliament, 281 ; his short triumph, tb. ; deposition, ib. Richard III., a.d. 1483-85, his acces- sion in accordance with the wishes of the nation, 200 ; crown entailed on his issue, ib. Rockingham (Marquis of), his ministry, 1765, 652. Roger, Bishop of Salisbury, Chancellor and afterwards High Justiciar, 1101- 1 10,7, 79 ; arrest of by Stephen, 83, n. 2. Index. 73 1 Roman Catholics, persecuting statutes of Elizabeth against, 417 ; suspected of disloyalty, 420 ; patriotism displayed by the, during the crisis of the Armada, 427 ; further persecution of, ib. ; the number of, who suffered death during Elizabeth's reign, ib. n. ; excepted from the Toleration Act, 1 William and Mary, 692; disabilities taken from, by the Emancipation Act of . 1829, 695; complete religious liberty given to, by later Acts, ib. Roman Catholic peers excluded from parliament by the Parliamentary Test Act, 1678, 597, and ib. n. *. Roman law ; disappearance of, from our judicial system, 3 ; re-introduced from the Continent in 13th century, tb. ; many of its principles absorbed in our own judicial system, ib. ; judges prohibit the citation of the, in the common law courts, 173, n. 2. Rotten boroughs, great creation of by Edward VI., Mary, and Eliza- beth, 367. Royal authority, checks on the, 338. Royal Succession Acts of Henry VIII. 's reign, enactments of the, 201, 202, 399 ; oath imposed by, ib. Royal Supremacy, William I. 's canons of the, 70. Royal Veto, the prerogative of the, has not been exercised since 1707, 654 and n. 4. Royalty, development of the institution of, 7- SACHEVERELL (Dr.), case of the impeachment of, A.D. 17 10, 501, n. Sacrament not to be administered ex- cept by ordained priests, 599. St. Alban's, council of, important as the first national representative assembly, 105, 223. St. Edmund's, confederacy of the barons St 3 Tohn' (Oliver), letter against the ''benevolence' asked for by James I., 48 < ■ fined and imprisoned, ib. ; his ar- gument in Hampden's 'ship-money' case, 534 ; made Solicitor-General by Charles I., 557- Salisbury, Gem6t of, A.D. 1086, 55. Sancroft's party, 1 688; their opinions, 616. Sandys (Sir Edwin), prosecution of, a.d. 1621, 503. Sapientes, those who attended the Wit- enagem6t, 30. Saxons, no mention of, by Tacitus, 4 ; mentioned by Ptolemy, ib. ; form a wide confederacy of North German tribes, ib. ; retain their independence of Rome, ib. Schoolmasters required by the Act of Uniformity, 1662, to conform to the liturgy of the Church of England, 599- Scir-gem6t, the, constitution of, 36. Scotland acknowledges the superiority of Henry II., 86 ; influence of, on the ecclesiastical affairs of England, 433 ; interference of Charles I. with the Church of, 541 ; visit of Charles to, 557 ; alarm caused by the ' inci- dent ' in, 558 ; James II. deposed by the ' Scottish Estates,' 619, n. ; peerage of, representation of the peerage of in parliament, &c, 667, and n. 2 ; Reform Act for, passed 1832, 677, and in 1868, 678, n. 3. Scroggs (Chief Justice) declares it cri- minal to publish anything concerning the government, 700. Scutage, commutation of personal mili- tary service for a money payment, 88 ; not to be imposed except by the common counsel of the nation, 123. Selden, his 'Mare Clausum,' an an- swer to Grotius' ' Mare Liberum,' 532, «. 1. Seven Bishops, trial of the, 1688, 613 ; their names, ib. n. 2. Sheriff, the, his office and duties, 1 7 ; government of the shire executed by the, 57 ; from the time of Philip and Mary the office of, purely civil, 185, n. I ; early abuse of his power of re- turning members to parliament, 306 ; attempt to restrain the abuse by sta- tute, 307. Sherlock's party, 1688, their opinions, 615. Ship-money, case of, decision of the Court of Exchequer, 532— Sir William Noy, Attorney-General, the originator of, ib. ; a direct violation of the Petition of Right, ib. ; extended from the sea- ports to the whole kingdom, 533 ; refusal of Hampden to pay, 533 ; pro- ceedings against him in the Exche- quer, ib. ; extra-judicial opinion of the judges, 534 ; arguments on the case, ib. ; judgment given for the Crown, 536 ; effect of this judgment on the people, 538-40 ; Charles offers to give it up for twelve subsidies, 732 Index. Ship-money — 544 ; offer rejected by the House of Commons, ib. ; abolished by the Long Parliament, 55 1 • Shire, 5 ; an aggregation of hundreds, 15 ; government of, &c., 16 ; theory as to the original independence of each, 37, n. Shiremoot or Scir-gem&t, constitution of, 36- Shiremoot, the, 154, n. 1. Shirley (Sir Thomas), case of, in 1603, question of freedom from arrest, 303. Shirley v. Fagg — controversy between the Lords and Commons as to the jurisdiction of the former, in appeals from courts of equity, 579- Sigeberht, King of Wessex, deposed by the Witan in 755, 31. Simnel, Lambert, 355, «• 2. 'Six Acts,' the, 1819, 701, n. Skinner v. East India Co., controversy between the Lords and Commons as to the original jurisdiction of the former in the case of, 579, n. 1. Slaves, 25,000 numbered in. Domesday Book, 21,; hereditary and penal, ib. Socage, philology of the word, 63, n. 5. Somers (John Lord), case of the im- peachment of, A.D. 1701, 500, n. Somerset (County of), resistance of the, to the benevolence asked for by James I., 486. Sovereign, diminution of the personal influence of the, since the reign of George III., 656 ; private property of the, 664. Spain, policy of James I. towards, 492 ; his scheme for the marriage of his son with the Infanta, ib. ; odious to the English, ib. ; petition against it by the Commons, 503 ; abandoned, 506. Speech, liberty of, speech of Peter Wentworth, 444 ; Elizabeth's defini- tion of, 447. (.SiK Freedom of Speech. ) Stamp Act of 1765, organized opposi- tion in parliament by the ' King's friends ' to the repeal of the, 652. 3tandish (Dr.) and Convocation, 382. Stannaries Court of Cornwall and Devon, its privileges and jurisdic- tions, 296, n. 2. Star Chamber, the, had the power of fining and imprisoning juries, 165 ; its origin, 176; decline of its juris- diction, ib.; renewed in a more legal form by Henry VII., ib. ; its old juris- diction revived by Henry VIII., 177 ; Star Chamber — under the Stewarts practically merged in the Privy Council, ib. ; review of its jurisdiction and procedure, ib. ; abolished in 1641, 178; its criminal jurisdiction, temp. Henry VII., 340; punishments inflicted by the, under Charles I., 529 and ib. n. I ; its victims released by the Long Parlia- ment, 54^ > abolished by the Long Parliament, 551. State, the, ancient supremacy of, over the Church maintained by William I., 70. Statute for the security of the subject under a King de facto, 339 ; held not to cover the proceedings of a. non- regal government, 340. Statute of 'Acton Burnell,' "or 'De Mercatoribus,' 227. Statute of Praemunire, 16 Richard II. 0. 6, 376. Statute of Provisors, 25 Edward III., A.D. 1350, 373. 'Statute of the Six Articles,' A.D. 1539, 408. Statutes of Westminster I., preambles of the, 225. Statutes, frauds in the practice of draw- ing up the, from the petitions granted by the King, 287. Statutes passed to check the aggressions of the Pope, 372. Steele (Sir - Richard) expelled from the House of Commons, 1714, for writ- ing a pamphlet against the Ministry, 682. Stephen, 1135-54, confirms the laws of Henry I., 81 ; concessions to the clergy and the nation, 82 ; the tumult and anarchy of his reign, 82 ; his arrest of the bishops, 83 ; death of his eldest son, 84 ; his scheme of re- form, ib. ; his death, ib. ; his election to the Crown, 191 ; his title to it, ib. Stockdale v. Hansard — conflict between the House of Commons and the courts of law as to the publication of papers affecting character, 690. Storie (John), M.P., imprisoned for disrespectful language to the house, &c, 454. Strafford (Thomas Wentworth, Earl of), case of the impeachment of, A. D. 1646, 496, n. ; and see Wentworth (Sir Thomas). Strathclyde, kingdom of, retained by the Britons, 2. Index. 733 Strickland, M.P., question of privilege, Strode (Richard, member of parliament) prosecuted in the Stannary Court, 296; proceedings declared void by stat. 4 Henry VIII. c. 8, 297 ; and the stat. declared to be a general law, 298. Stubbe (Thomas), 1579, 428, n. 2. Sub-infeudation, 51; put a stop to by the stat. Quia Emptores, 228. Subpoena, writ of, introduced, 173; its unpopularity, ib. Subsidies voted in different proportions, 239- Succession, the, to the Crown, 187 ; the right of parliament to re-settle the, paramount, 197; Henry VIII. empowered by parliament to limit the, 202 ; treason to deny the power of parliament to limit the, 13 Eliz. c. I, 204 ; conflict of Elizabeth and parliament as to the, 442 ; question again brought forward by Peter Wentworth, 447. Sully (Ducde), his opinion of James I., 461. Supplies appropriated to specific pur- poses by" the House of Commons in the reign of Charles II., 585 ; be- comes the constant practice and an undisputed principle, 587. Supremacy, Act of, 401. Suspending power of the Crown, 289. Synods of the clergy, date from an early period, 26. TALLIAGE, right of, surrendered by Edward I., 147. Taltarum's case, 337, n. I. Taxation, the Witenagemot only had the power to impose, 34 ; heavy, im- posed by Henry I., 80; excessive, during Richard I.'s reign, 93 ; royal claim to arbitrary, surrendered by Magna Charta, 124 ; of the people generally by Henry II., 147; °> in- come and personal property first introduced,^.; of a 'fifteenth,'' 1b._n.3-, the pressure of, excites opposition, 148; the right to consent of the people to, re-asserted, ib. ; gradual growth of indirect, 149; the point of transition from local to central, 226 ; the Commons vindicate their right to share in any legislation regarding, 229 ; the principle adopted that the taxed must consent to, 231; exclu- sive right of parliament to impose, Taxation — 236 ; without consent illegal, 246 ; illegal, rare under the Lancastrian kings, 284 ; consent of parliament necessary for, temp. Henry VII., 338 ; resisted by the mass of the people, temp. Henry VII., 342- 344 ; the right of import and ex- port, declared by the judges to be vested in the Crown, 473 ; the ' Book of Rates' A. D. 1608, ib. ; remon- strance against, 474; without the consent of Parliament denounced by the House of Commons, 1614, 482 ; the two Acts of the Long Parlia- ment, close the series of ' statutes against arbitrary, 551. Temple (Earl) dismissed from the Lord ~ Lieutenancy and the Privy Council ' ■ by George III., 651. Temple (Sir William) remodels the Privy Council, 637, Tenant, investiture on the grant of a fief to a, 58 ; homage of, to his lord, ib. ; and oath of fealty, 59 ; obliga- tions of, to his lord, ib. Tenures, feudal, glance at the outline of the system of, 57; though abolished by Charles II. the spirit of the system still lives, 58 ; by Knight service, 58 ; by Grand Serjeanty, 63 ; by Petit Serjeanty, ib. ; in free Socage, ib. ; in gavelkind, 65 ; in villeinage, 65 ; abolition of old feudal, under Charles II., 581. Territorial divisions, 14. Test Act, design of James II. to over- throw the, opposed by parliament, 609 ; repealed 1828, 694. Teutonic conquest of Britain, 1. Theodore of Tarsus, Archbishop 01 Canterbury, reduces the various eccle- siastical organizations into one na- tional church, 8. Thirty-nine Articles (the), 414 ; made binding on the clergy, ib. Thornton's case, demand for trial by battle, 122. Thorpe's case, 31 Henry VI., freedom from arrest, 300. Throckmorton (Sir Nicholas), case of, 165. Thegn, the, 23. Theguhood, effects of the growth, of, 23. Tithing, the exact nature of, doubtful, 34 ; responsibility of, fora member, 35. Titles to Estates, Commissioners pointed by Charles I. to inquire into and compound for defects in, 528. T Index. ration Act, I Will, and Mary, c. 1 8, 2. iage and poundage rigorously en- -ced by Charles I., on the royal au- Drity alone, 538; granted for two mens only, by the Long Parlia- -nt, 550. ure, abhorrent to the common law England, 425, n. 2. and Whig parties, origin of the, 1 ; difference in principle between, 3- us, representatives of, summoned parliament by De Montfort, 220 ; Dgress of the towtas, 221 ; charters 222 ; first symptom of the repre- ltation of, 223. nship (the) or Vicus, 14. son, lands of person convicted of, ble to forfeiture for ever, 62 ; feiture for abolished, 364, n. sons, statute of, 25 Edward III., I, n. I ; laws enacting new, temp. ;nry VIII., 349 ; accused persons t heard in their defence, 351 ; the w laws of Henry VIII. abolished by [ward VI., 357 ; re-enacted in 1552, ; two witnesses required in cases of, ; the law of, 358, etseq. ty of Alfred and Guthrum defines :limits-of the Danish occupation, , first recorded instance of the inting of a new, 165. s of a political nature unjustly con- cted under the Tudors and Stew- :s, 435- mals, abolition of irregular, by the mg Parliament, 552. mialAct passed by the Long Parlia- :nt, 549. oda necessitas, prior to the conquest, lands subject to the, 58. meaning of .the word originally, ■gembt, an assembly of freemen, 14. VL, a Puritan minister, alleged libel , on the bishops, 432. lertakers, ' the, 481. :>rmity, Act of, A.D. 1559, 413; and 1662, 598. » arians excepted from the Toleration :t, I Will, and Mary, 692. ersities Tests Act, 1871, 696. wful assemblies, riots and combin- ons, measures to suppress, by :nry VII., 341 ; Act 2 & 3 Ed- ird IV. c. 5, against, 365. VANE (secretary, Sir Henry), impru- dent speech in the Commons, 544. Vaughan, C. J., celebrated decision in Bushel? s case, 165. Venue, rule as to the, of jurymen, 164. Victoria, Queen, A.D. 1837; her action in regard to the ' Bedchamber Ques- tion,' 1839, 658 ; her memorandum to Lord Palmerston on the relations of a secretary of state to the Crown, 1850, ib. Vicus (the), 4. Vikings, or sea-kings, leaders of the Danes, 9. Villeinage, tenure in, 65 ; gradual de- cline of, 259 ; history of, 267-77 > its extinction promoted by the disso- lution of the monasteries, 407. Villeins, insurrection of the, A.D. 1 38 1, 267; status of the, temp. Henry II., 269. Visitation, articles of, issued by Richard I., 160. WAGER of Battle, 67 and ib. n. .2. Wager of law", bailiff must before put- ting any one to his law, have wit- nesses, 117. Wales, retained by the Britons, 2 ; an- nexation of, to the English crown, 354 ; rights, privilege, and laws of England extended to, ib. Waller (Edmund), speech on maintain- ing the rights and privileges of Parlia- ment, 542. Wallingford, peace of, A.D. 1 153, 84. Walter (Hubert), "Archbishop of Canter- bury, appointed justiciar, 96. Warbeck, Perkin, 355, n. 2. Wardship, the lord entitled to, if the heir under age, 61 and ib. n. 1 ; of an infant tenant of a socage estate, 64, n. ; of children to belong to the mother or relation, 76 ; remedy of the abuses of, by Magna Charta, 108 ; of lands held of mesne lords, ill. Wason v. Walter, 1868, right of a newspaper to publish a faithful re- port of parliamentary debates, deter- mined, 691. Watch and Ward, system of, 183. Weights and measures, uniformity of the standard of, enjoined by Magna Charta, 131. Welsh Marches, court of the presi- dent and council of the, abolished, 552- Index. 735 Wensleydale, Lord, attempt to create him a peer for life only, 213, n. 3. Wentworth (Paul, M.P.), 443, 444. Wentworth (Peter, M.P.), his speech on liberty and freedom of speech, /|/|/] ; his direct attack on Elizabeth, 445 ; imprisoned by the Commons, 446 ; his speech on Mr. Cope's Bill, again imprisoned, ib. ; brings forward the Succession Question, 447. Wentworth (Thomas), member for Ox- ford, sent to the Tower by James I., 483; his parentage, &c, ib. n. 1. Wentworth (Sir Thomas) elected for the County of York, 482, n. 1 ; created Earl of Strafford, 527 ; deserts the popular party, ib., the adviser of Charles in his career of despotism, ib. ; attaches great im- portance to the opinion of the judges on the levying of ship-money, 534, n. I ; Pym denounces him, in a speech in the Long Parliament, 547 ; impeachment of, 548. Westbury (Borough of) fined for receiv- ing a bribe at an election, 456. Whig and Tory parties, origin of the, 601. Whigs, the, opinions of, as to the for- feiture of the Crown by James II., 616. Whitelocke (James) imprisoned by King Jam esl., 490, n. 1. Whitgift (Archbishop), 431. Widows, provisions in Magna Charta with regard to, 109. Wilkes (John), 1766, his scheme of re- form, 676 ; proceedings of the Com- mons against, 682; expelled thehouse, 683 ; declared incapableof re-election, ib.; again elected in 1774, ib.; the de- claration of the Commons expunged from the journals, ib. William I., A.D. 1066-87, a competitor for the English crown, 46; secures the moral support of the Pope, ib.'; invades England and defeats Harold at Senlac, ib. ; elected by the Witan and crowned at Westminster, ib. ; assumes the title of 'King of the English,' 47; national act of allegi- ance to, 55 ; checks the power of his barons, 56, and ib., n. 2; abolishes the great earldoms, 57; his policy national rather than feudal, 65 ; made but few changes in the laws, 66; renews the law of Eadward the Con- fessor, ib. ; maintains the public peace, 68; prohibits the selling of men into foreign jslavery, ib. ; harshness of his William I.— forest laws, ib. ; refuses to accede to Hildebrand's scheme of ecclesiastical feudalism, 69 ; his canons of the Royal supremacy, 70; his opulence, 72 ; great power of, ib. ; his govern- ment despotic, ib. ; summary of his character, 73. William II., 1087-IIOO, slight consti- tutional importance of his reign, 74; gains the support of the English against the Barons, 75 ; promises good laws, ib. ; his accession to the Crown, 188. William III., A.D. 1688-9-1701-2, his election to the crown by parliament, 207; his invitation to England, 614; lands at Torbay, 615 ; is requested to assume the provisional government, ib. ; declines to become Regent or King Consort, 617. William III. and Mary, 1688-9, 94; accept the crown, 619. William IV., sudden dismissal of the Melbourne ministry by, 657 ; his surrender to Parliament of the Crown revenues, 662. Williams (John, Bishop of Lincoln), tyrannical sentence of the Star Cham- ber on, 529. Wills and testaments recognized in Henry I.'s charter, 76. Winchester, statute of, 13 Edward I., 184 ; provisions of, 185. Windebank, Secretary of State, im- peachment of, by the Long Parlia- ment, 548. Witan=v/ise men, those who attended the Witenagemot, 30. Witenagemot, the, bishops mem- bers of, 8 ; its constitution, 29 ; practically an aristocratic body, ib. ; title of those who attended it, 30 ; represented the national will, 31 ; its powers most extensive, ib. ; could depose the King, ib. ; and elect the King, 32 ; had a direct share in every act of government, 33 ; acted as a supreme court of justice, ib. ; its ex- tensive powers not always exerted, 34 ; its right of electing a king un- fettered, 46; continued by William the Conqueror, 66 ; gradually changes into the Curia Regis, ib. ; a debate in the, 238, n. 1. See Parliament. Witnesses legally appointed in civil causes, 39 ; analogous to public no- taries, ib. Wolsey (Cardinal) attempts to intirni- 736 Index. Wolsey — date the Commons in the matter of taxation, 344 ; convicted of having exercised jurisdiction and authority legatine, 389 ; commenced a visita- tion of the clergy, 403 ; procured the suppression of many convents to en- dow a new college at Oxford, ib. Women, Celtic words retained in our language nearly all relate to, 2, n. ; could only appeal for the death of a husband, 121. Wool, heavy tax on, 233, 235, «. I, 236 ; its imposition without the consent of the Commons, 247 ; grants on, by Wool— the merchants to Edwardlll., without consent of the Commons, 248. Writ of privilege, originally members of parliament released from custody by, or Special Act, 301. Wycliffe (John), his writings ' the be- ginning of the Reformation,' 259 ; the leader of the Lollards, 377 ; translates the Bible, 378 ; revolution- ary and socialistic tendencies of his followers, ib. YOUNG'S case, 33 Henry VI., free- dom of speech, 296. THE END. BRADBURY, AGNEW, & CO. PRINTERS, WHITEFRIARS, LONDOK.