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JESSICA PEIXOTTO 
 3864- 1941 
 
S- 
 
Digitized by the Internet Archive 
 . in 2008 with funding from 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/englishconstitutOOtaswrich 
 
English 
 Constitutional History. 
 
1 N 
 
-l-v-fs-^ 
 
 1^ 
 
 Con0titutional ||i0tor5 
 
 FROM THE^ TEUTONIC CONQUEST 
 
 TO 
 
 THE PRESENT TIME. 
 
 BY 
 
 THOMAS PITT TASWELL-LANGMEAD, 
 
 B.C.L., OxoN., 
 
 STANHOPE PRIZEMAN IN THE UNIVERSITY, 1866, VINERIAN SCHOLAR IN THE UNIVERSITY, 1867, 
 AND LATE PROFESSOR OF CONSTITUTIONAL LAW AND HISTORY, UNIVERSITY COLLEGE, LONDON. 
 
 FOURTH EDITION. 
 
 REVISED THROUGHOUT, WITH NOTES AND APPENDICES, 
 
 BY 
 
 C. H. E. CARMICHAEL, M.A., OxoN., 
 
 TAYLORIAN SCHOLAR IN THE UNIVERSITY, 1862, 
 CORRESPONDING MEMBER OF THE SOCIETY OF COMPARATIVE LEGISLATION, PARIS. 
 
 LONDON: STEVENS & HAYNES, 
 
 BELL YARD, TEMPLE BAR. 
 
 BOSTON: HOUGHTON, MIFFLIN, & CO., 
 
 Mdcccxc. 
 
55o^^i-. 
 
 IN MEMORIAM 
 
JM)1? 
 
 TO 
 
 THE HON. T. C. AGAR-ROBARTES, M.A, 
 
 CHRIST CHURCH, OXFORD, 
 
 NOW SECOND LORD ROBARTES OF LANHYDROCK, 
 BY HIS FRIEND, 
 
 THE AUTHOR. 
 
PREFACE TO THE SECOND EDITION, 
 BY THE AUTHOR. 
 
 A Second Edition of this work being required, I have 
 taken the opportunity to revise it carefully throughout. 
 While preserving the original arrangement, I have added 
 much fresh matter, and several portions, more especially 
 the Chapter on 'The Succession to the Crown,' and the 
 last Chapter on the ' Progress of the Constitution since the 
 Revolution,' have been to a considerable extent re-written. 
 The latter chapter, from a fear lest the volume should 
 extend to an inconvenient length, had originally been too 
 much compressed. It has now. been broken up into two 
 chapters, which will, I trust, be found to treat with 
 adequate fulness the important topics which fall within 
 the post- Revolutionary period. 
 
 As stated in the Preface to the First Edition, the aim of 
 the present work is to give a concise but comprehensive 
 history of the origin and development of the English Con- 
 stitution. Intended primarily as a Text-book for students 
 at the Universities and Inns of Court, it was my hope 
 that the book might also prove not unacceptable to the 
 general reader. For all of us alike, the history of the 
 Political Constitution under which we live must possess a 
 
 Mlli29i 
 
viii Preface to the Second Edition. 
 
 practical value, apart from the interest attaching to the 
 many stirring events which light up the story of its genesis 
 and growth. A clear apprehension of the varying political 
 aspect of the English nation throughout its long career, is 
 as essential to a true knowledge of English History as a 
 familiarity with the wars and the social phaenomena which 
 mainly arrest the attention of the general historian. 
 
 The very favourable reception which this work has met 
 with, and the short space of time within which its position 
 has been established, constitute a source of legitimate 
 gratification, and I have spared no pains to make the 
 present edition as complete as possible. 
 
 My obligations to the older writers, Kemble, Lappen- 
 berg, Palgrave, and Hallam, as well as to the more recent 
 works of Stubbs, Freeman, and May, are apparent, and 
 have been duly acknowledged. But numerous other writers 
 of eminence have been referred to, and while gladly availing 
 myself of the guidance of previous workers in the same field, 
 I have also personally consulted the Rolls of Parliament, 
 the Mediaeval Chroniclers, and other original authorities, 
 and have endeavoured to arrive at an independent judg- 
 ment on all points of importance. 
 
 The arrangement adopted is still, in the main, chronolo- 
 gical, but with occasional deviations when some particular 
 topic seemed to require a continuous treatment. 
 
 I have adhered to my original plan of considering 
 ecclesiastical matters purely under their political aspect, 
 and of endeavouring, as far as possible, to keep aloof from 
 
 * -- 
 
Preface to the Second Edition. ix 
 
 all party spirit in describing the nature and growth of our 
 Institutions. 
 
 The texts of Magna Charta, the Petition of Right, and 
 the Bill of Rights — those three great landmarks of English 
 Constitutional History — which were given in full in the 
 First Edition, have been supplemented by the text of the 
 Act of Settlement, which completes the written code of our 
 Constitution. 
 
 T. P. T.-L. 
 
 The Temple, December, 1879. 
 
EDITOR'S PREFACE TO THE 
 THIRD EDITION. 
 
 In sending forth the Third Edition of such a book as 
 the present, it seems chiefly necessary to state briefly the 
 reasons which prevailed with me to undertake a task 
 which could only entail much heavy work, and no less 
 heavy a responsibility. 
 
 To Oxford men of our generation, and more particularly 
 to those, who, like ourselves, read for Honours in the old 
 undivided School of Jurisprudence and Modern History, 
 it will be unnecessary to say that Tas well- Langmead, and 
 I were close friends. I first knew him in the Summer 
 Term of 1862, and I came to know him as a friend of one 
 of my brother competitors in a competition within the 
 University which gained me some of my most valued 
 Oxford friends. Of these some still remain to me, while 
 others, such as Lockhart of University, and Taswell- 
 Langmead himself, have been too early lost to the world, 
 — the former shortly after gaining the crown of his Oxford 
 work by election to the Stowell Fellowship in his College, 
 and on the very threshold of his career at the English Bar ; 
 the latter just as his historical work had begun to receive 
 
•xii'' ' ■ "' 'Preface to the Third Edition, 
 
 its due meed of recognition, in his election to the 
 thoroughly congenial Chair which he filled at the time 
 of his death. Knowing Langmead as I had known him, 
 working with him as I had worked with him on the 
 previous editions of this book, I felt that I could bring to 
 the preparation of the Third Edition a more intimate 
 acquaintance with the author's mind on the subject-matter 
 of his book than any other Editdr, though better known 
 in the World of Letters. And I still think that I was 
 right in undertaking the task, however the accomplish- 
 ment may fall short of my desires. I have endeavoured 
 to correct all such press errors as I noticed in revising the 
 present edition, and I have also compared all the extracts 
 of any length and importance with the text of the authors 
 cited, and have, as far as possible, brought them into 
 exact conformity with the originals. In the extracts 
 from Rot. Pari, and the Mediaeval Statutes, this has 
 often involved the entire re-casting of the text. In the 
 case of writers such as Kemble, I have used the same 
 care to bring the passages cited into conformity with the 
 special orthography of the author, and to shew, in all cases, 
 by the ordinary marks of omission, where an extract was 
 welded together from different portions of the same page, or 
 of following pages, or of text and notes. 
 
 The foot-notes which I have added to the present 
 edition are throughout distinguished from Langmead's by 
 the use of square brackets, and generally also by the word 
 " Ed." For the notes at the end of several chapters, where 
 I have brought out and sometimes criticised the views 
 of M. Glasson, in his recent elaborate and interesting 
 
Preface to the Third Edition. xili 
 
 Histoire du Droit et des Institutions Politiques de I'Angle- 
 terrCy I am necessarily solely responsible, as Langmead 
 had only commenced reading the work, and had not left 
 more than a few pencilled marginal notes by way of a 
 guide to his own judgment of M. Glasson's book. 
 
 In illustrating the mediaeval portion of Langmead's 
 book, I have frequently cited Mr. Digby's valuable 
 History of the Law of Real Property^ Mr. Do well's History 
 of Taxation, and Mr. Clifford's Private Bill Legislation, on 
 the subjects of their respective works. I have also availed 
 myself of the interesting side-lights thrown upon History 
 by the publications of Societies, such as the Royal Society 
 of Literature, the Royal Archaeological Institute, the 
 Camden Society, and others, to a greater extent than in 
 the previous editions. I have departed from Langmead's 
 orthography in the matter of Anglo-Saxon names, because 
 it was a matter on which I knew him to have simply 
 followed others, and not given the result of his own 
 independent judgment, while the point was one on which 
 I always differed from him. At the same time it is one 
 on which I do not think that an iron rule of consistency 
 can be maintained. In the Appendices, for which I am 
 solely responsible, I have sought to say a few words on 
 some topics of Historical interest which seemed to me to 
 require further treatment than could be given in foot- 
 notes,^ and on some of which Langmead himself would not 
 improbably have spoken had he been bringing out this 
 edition. Where the Appendices refer to passages in the 
 text, I hope they may be found to set them in a somewhat 
 clearer light. I would, of course, by no means have it 
 
xiv P7'eface to the Third Edition. 
 
 supposed that I represent either Langmead's views or 
 any other than my own, in so far as, whether in notes 
 or Appendices, I express any opinion on controverted 
 points. I am indebted to Mr. Luke Owen Pike, M.A., 
 the learned Editor of the Year Books, for the readily given 
 help by which he enabled me to track a reference to the 
 Year Books, left incomplete by Langmead, and to 
 strengthen my own judgment in the case of Dr. Standish 
 and Convocation. 
 
 For my old friend Taswell-Langmead's sake, I would 
 express the hope that the present edition of his book may 
 be found not unworthy of his own good fame among 
 students of History alike in the Old World and among 
 our " kin beyond sea." 
 
 C. H. E. CARMICHAEL. 
 
 New University Club, S.W. 
 February, 1886. 
 
EDITOR'S PREFACE TO THE 
 FOURTH EDITION. 
 
 In sending out a Fourth Edition of my old friend's book 
 I think I may be justified in saying that I am glad to find 
 the demand for a new issue making itself felt so soon after 
 the publication of the Third Edition. This is due, I know, 
 to no inconsiderable extent, to its popularity among our 
 "kin beyond sea," of whom I expressed the hope, in 1886, 
 that they would find it not unworthy of the Author's fame. 
 I may, I think, fairly conclude that this has been the 
 case, and I yield with pleasure to pressure from the other 
 side of the Atlantic for an early issue of the present 
 Edition, though it may be at the risk of some points not 
 receiving so full a treatment as I would have liked to give 
 them. 
 
 I have drawn attention, in the Appendices which I have 
 added on the present occasion, to some matters of interest, 
 as it seemed to me, from a Constitutional point of view, 
 which had not been so treated in the last Edition. I 
 have, on the whole, decided to let my original Appendices 
 stand, almost untouched, save for some slight alterations in 
 details where any fresh light had reached me in the 
 
XVI Preface to the Fourth Edition. 
 
 interval between the two Editions. This course seems to 
 me alike the most suited to my present convictions and 
 the most likely to procure for me the communication of 
 details which would be of interest both to myself and to the 
 readers of this History. 
 
 It should be remembered by all who may read the 
 present Edition, that I only put forward any views of my 
 own, whether in Notes or Appendices, by way of sugges- 
 tion, and in order, as I hope, to be of some use to the 
 student. If I say anything at all, I must, occasionally at 
 least, express some opinion, though I have not always really 
 gone so far in that direction as may have been supposed. 
 Besides the sources named generally in my Preface to the 
 Third Edition, I have, as will be seen by those who may 
 use the present issue, endeavoured to throw light upon my 
 subject from fresh sources akin to those already specified. 
 Among such sources, old and new, I would particularly 
 mention the Exchequer Rolls of Scotlandy a fitting memorial 
 of the devotion to Historical studies of the late George 
 Burnett, LL.D., Lyon King of Arms, my correspondence 
 with whom lasted down to a very short period of the day 
 when he was taken from among us, while yet full of work 
 and of helpfulness to younger workers. Alere fiammanty it 
 has well been remarked in the Law Magazine and Review 
 for August last, may be said to have been the motto of 
 the late Lyon, as also, I would add, of another distin- 
 guished Scottish writer, whose researches have been laid 
 under contribution in my notes, and whose memory 
 I have likewise to cherish for the encouragement 
 which his friendship gave me in more than one line 
 
Preface to the Fourth Edition, xvii 
 
 of study, — the late Alexander, Earl of Crawford and 
 Balcarres. 
 
 Some of the points here treated are admittedly obscure, 
 and I can only profess to have stated the latest conclusions 
 or the latest hypothesis which I have been able to form. 
 This is specially the case with the questions concerning 
 Stephen of Aumale, the aid pur fille marier taken by 
 Edward I., and the post-ftatus miscalled * Calvin ' in the 
 English Reports. 
 
 On some difficult points of genealogy falling within the 
 scope of this History, I have, I hope, been able either to 
 throw new light in the present Edition, or at least to 
 strengthen the position previously taken up by Langmead 
 or myself. I have also added brief genealogical notices of 
 Historical characters, where such information seemed likely 
 to be of use. 
 
 I trust that some of the illustrations of Mediaeval Life 
 and Law which I have brought together in this Edition 
 from Scottish and Irish sources will be both new and 
 interesting to some of my readers, while our " kin beyond 
 sea" have contributed new matter for the student of 
 Constitutional History in the publication of the First 
 Constitution of Connecticut, to which I have devoted 
 one of my Appendices. 
 
 I have been indebted to the Worshipful Chancellor 
 Brunei, D.C.L., for a kind communication on a subject 
 connected with Convocation, and to my friends, Sir 
 Sherston Baker, Bart., Recorder of Barnstaple and 
 Bideford, for references with which he kindly supplied 
 
 C.H. i 
 
xviii Preface to the Fourth Edition, 
 
 me, and Henry Rutherfurd, Esq., of Fairnington and of 
 the Middle Temple, for the loan of an interesting pamphlet, 
 The Moors Baffled^ describing Tangier while under the 
 government of Andrew, Earl of Teviot, Lord Rutherfurd. 
 
 C. H. E. CARMICHAEL. 
 
 New University Club, S.W. 
 September, 1890. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 FROM THE TEUTONIC CONQUEST OF BRITAIN TO THE 
 NORMAN CONQUEST OF ENGLAND. 
 
 Origin of the English — Teutonic Conquest of Britain— Germanic origin of PAGE 
 English Institutions— Ancient German polity — The Mark system — 
 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 — Appropriation of the Soil — The masgths — 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 — Earldormen — The 
 Clergy — The King — Nature of Early English kingship — Gradual in- 
 crease in power and dignity — Assumption of Imperial titles — Royal 
 prerogatives and immunities — The Queen — The Athelings — The 
 Witenagemot — Its Constitution — Its Powers — It deposed and elected 
 Kings— And participated in every act of government— But these exten- 
 sive powers not invariably exerted — Except in legislation and taxation 
 — ^Judicial system — The Frithborg^ or Frankpledge — Responsibility of 
 the Hlaford for his dependents—The Hundredmoot — Private Soken or 
 Jurisdictions — The Shiremoot — Procedure — Compurgation — Ordeal— 
 Legally appointed witnesses to bargains — Punishments ( ^r^zA/, bdt^ 
 7uite, death) — Ancient English Laws — Early attempts at Codification — 
 Alfred as a legislator — Diversities of local customs — Gradual develop- 
 ment from personal to territorial organisation — Increased power of 
 the great nobles — The great Earldoms under Cnut and Edward the 
 Confessor ........ .... 1—48 
 
 CHAPTER n. 
 
 THE NORMAN CONQUEST. 
 
 Claimants to the Crown on death of Edward 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 Continen- 
 tal Feudalism— Feudal tenure of land without feudal principles of 
 government — Gemot of Salisbury — Domesday Book — Checks to the 
 power of the Feudatories — Great Earldoms abolished — Counties Pala- 
 
 b 2 
 
XX Contents, 
 
 tine — Feudal tenures — Their services and incidents — Tenure in Villein- PAGE 
 age — The Conqueror's policy National rather than Feudal — National 
 Witan continued — William's Laws — He renews the Law of Edward 
 the Confessor — Wager of Battle— English ry — Public Peace — The 
 Forest Laws — The Church — Separation of Spiritual from Temporal 
 Courts — William's canons of the Royal Supremacy— Judicial organisa- 
 tion — Ctcria Regis — ^Justiciars appointed — Riches of the Conqueror — 
 His great power — Harshness of his rule 49 — 79 
 
 CHAPTER III. 
 
 REIGNS OF THE NORMAN AND FIRST ANGEVIN KINGS. 
 
 Reign of William Rufus— How far Constitutionally important — Ranulf 
 Flambard— Struggle between the Royal and Feudal powers — William 
 seeks support of the English against the Baronage — and promises good 
 laws — Henry L : His Charter of Liberties — Mala consuetudines 
 abolished — Forests retained — So-called Leges Heurici Frivii — Henry 
 courts and receives the support of the native English — Marries a niece 
 of Edgar Atheling — Triumphs over the rebellious barons — Raises up 
 new men — Strengthens jurisdiction of County and Hundred Courts — 
 Charters to Boroughs — Royal administration centralised and systema- 
 tised — Occasional Circuits of the Judges — Severity in punishing offences 
 against the Laws — Question of Investitures — Stephen : His two 
 Charters — Feudal 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 H. : 
 The Angevin Dynasty— Charter of Liberties— Inquest of Sheriffs — 
 Henry's policy — Establishes law and order— The two great Constitu- 
 tional results of his reign — Administrative reforms — Itinerant Justices 
 — The Grand Assize — Scutage — Contest with Becket and the clergy — 
 Constitutions 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, Wil- 
 liam of Coutances, Hiibert Walter, and Geoffrey Fitz-Peter — Deposi- 
 tion 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 . 80 - 106 
 
 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 Edward the Con- 
 fessor — Events of John's reign which led to the granting of the Charter 
 — Separation of Normandy from England — Decay of Feudalism — Re- 
 fusal of the barons to follow the King on foreign service — John's per- 
 sonal character — Church, baronage and people united against him — 
 His struggle with the Papacy— Double election to see of Canterbury — 
 John refuses to receive the Pope's nominee— The Interdict, Excom- 
 munication and ultimate Deposition — The King submits, and surren- 
 ders his Kingdom to the Pope— Struggle with the barons— Councils at 
 
Contents. xxi 
 
 St. Alban's and St. Paul's— Confederacy of the barons at St. Edmund's PAGE 
 — 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 — Mode of enforcing the Charter — Recognition of 
 the National Unity — Events of John's reign subsequent to the grant of 
 the Charter — His attempts to evade it — Renew'al of the Civil War — 
 The Crown offered to Louis of France — Death of John — Accession of 
 Henry IH. — Earl of Pembroke chosen Rect07- Regis et Kegni — 
 Henry HI.'s first re-issue of the Cliarter — Alterations and omissions — 
 His second Charter and Charter of the Forest— Omissions, alterations, 
 and new clauses — Mortmain — His third Charter — Subsequent confirma- 
 tions 107—153 
 
 CHAPTER V. 
 
 ADMINISTRATIVE SYSTEM UNDER THE NORMAN AND 
 PLANTAGENET KINGS. 
 
 Personal share of the King in all branches of Administration — A trial 
 before Henry II. in person — The Justiciar — The Chancellor — Curia 
 Regis — Fiscal Administration — The Exchequer— Sources of revenue 
 — Important changes in taxation under Henry II. — Personal property 
 taxed — Pressure of new and systematic taxation excites opposition — 
 and leads to re-assertion by the Nation of its ancient right to be taxed 
 only by consent — Fines /-r^? respectu inilitiae — ^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 traced — the King's Continual Council or 
 Concilium Ordiiiarium — Rise of the Chancellor's jurisdiction — En- 
 croachments of the Council on jurisdiction of the Common Law — 
 Statutes in restraint of the Council and Chancery — Their small effect — 
 Equitable jurisdiction of the Court of Chancery permanently estab- 
 lished — Magnum Concilium — Origin of Judicial character of House of 
 Lords — and of the Legislative character of the Privy Council — Judicial 
 powers of Privy Council— Origin of Court of Star Chamber — Revived 
 under the Tudors — Nature of its jurisdiction and punishments — Police 
 and military organisation — The Frithborh — The Fyrd — The Huscarls 
 of Cnut— Employment of mercenary troops — Assize of Arms in 
 1 181 — The ancient Fyrd revived — Amalgamation of the alodial and 
 feudal military systems under Henry III. and Edward I. — Expansion 
 of ancient police organisation concurrently with that of the Fyrd — 
 Conservators of the Peace— Coroners — Watch and Ward — Statute of 
 Winchester, 13 Edw. I. — Commissions of Array — The Militia — Decay 
 of national local force — Superseded by standing army at end of 17th 
 century — Reorganised as the National Militia in 1757 .... 154 — 203 
 
 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 — "William the 
 Conqueror elected by the Witan — Election of William Rufus— Henry I. 
 
xxii Contents, 
 
 — Stephen — Henry II. — Richard I. — ^John — Henry III. — Edward I. page 
 the first king who reigned l^efore his coronation — but his reign dated 
 not from death of his father but from day on which oath of fealty taken 
 by the baronage — Edward II. declared to be King * by descent of 
 heritage,' but his reign dated from day following the death of his pre- 
 decessor — Hereditary succession practically established — But subject 
 to the paramount right of Parliament to re-settle the succession — De- 
 position of Edward II. — Edward III. — Deposition of Richard II. — 
 House of Lancaster — Election of Henry IV. — 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 Par- 
 liament on him and his issue — Parliamentary settlements of the suc- 
 cession 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 Eliza- 
 beth'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 — Revolu- 
 tion of 1688 — Deposition of James II. — Election of William of Orange 
 — Act of Settlement — Recapitulation 204—235 
 
 CHAPTER VII. 
 
 ORIGIN OF PARLIAMENT. 
 
 A Commune Concilium Regni has always existed — The Witenagemot — 
 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 — The * Mad Parliament ' at 
 Oxford, 1258 — ' Provisions of Oxford ' — Oligarchies in England — 
 Simon de Montfort, ' Founder of the Plouse of Commons ' — His first 
 Parliament — His second Parliament, to which Representatives of 
 Towns are summoned — Progress of the Towns — Representative 
 machinery first employed for judicial and fiscal purposes — Representa- 
 tion of boroughs in the Shire Courts — First symptoms of Representa- 
 tion of Towns in the National Assembly — Transitionary period in 
 the Constitution of Parliament, 1 265- 1295 — Parliament during latter 
 years of Henry III. — Parliaments under Edward I. (in 1273, 
 at Westminster; 1283, Jan., Northampton and York; Sept., Shrews- 
 bury or Acton Burnell ; 1290, Westminster, grant of aid pur 
 file marier ; 1294, Westminster; 1295, Westminster)— End of transi- 
 tionary period— Perfect representation of the three Estates of the 
 Realm— Inferior clergy represented in Parliament under fraemu- 
 nientes clause — Convocation — Inferior clergy cease to attend Parlia- 
 ment in the 14th century — but preserve the power of self-taxation till 
 1664 — Clergy, though still in theory, not now practically, 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—Ylx^C' 
 tions from the clergy— Bull Clericis Laicos — ' Maltoltc ' on wool — 
 Infractions of ^fagna Charta— Foreign service— Earls of Hereford and 
 
Contents. xxiii 
 
 Norfolk — Edward's speech to the people — A Grand Remonstrance page 
 
 presented to the King — grant of the Confirmatio Chartarum, 1297 — 
 
 De Tallagio non Concedendo 236 — 272 
 
 CHAPTER VIII. 
 
 GROWTH OF PARLIAMENT (1295-I399). 
 
 The National Council gradually wins back an active control over all the 
 affairs of the nation — Division of Parliament into two Houses — Two 
 elements of the Commons, Knights of the Shire and Burgesses — the 
 knights at first deliberated and voted with the barons — Union of the 
 knights and burgesses in one House — Its important consequences —No 
 noble caste in England — Civil equality of all ranks below the peerage — 
 Gradual growth of the power of the Commons under Edward II. and 
 Edward III. — The 'Lords Ordainers ' — Articles of Reform — Summary 
 of grievances in 1309 — Right of Commons to concur in legislation — 
 Regularity of meeting of Parliament — Annual Parliaments — The Com- 
 mons establish three great rights : (i. ) Taxation without consent 
 illegal — (Appropriation of supplies — Audit of public accounts — Wages 
 of members) — (ii. ) Legislation, concurrence of both Houses necessary 
 — (Difference between Ordinances and Statutes — Ordinances of the 
 Staple) — (iii.) Right of Commons to inquire into administrative abuses 
 — (Attempt to establish responsibility of Ministers to Parliament- 
 First protest on the rolls — First instance of Parliamentary impeach- 
 ment — The ' Good Parliament ' — Impeachment of Lords Latimer and 
 Nevill — Commons intervene in questions of War and Peace — and 
 exercise active control over various other affairs of State) — Reign of 
 Richard II. — Its Constitutional importance— Its history during the 
 three periods: (i) From 1377 to the f^«/ d'etat of 1389; (2) From 
 1389 to the second coup d'etat of 1397 ; (3) From 1397 to the King's 
 deposition in 1399 — Insurrection of the Villeins in 1 381 — History of 
 Villeinage 273—322 
 
 CHAPTER IX. 
 
 PARLIAMENT UNDER THE LANCASTRIAN AND YORKIST KINGS. 
 
 (1399-1485). 
 
 (Henry IV., Henry V., Henry VI., Edward IV., Edward V., 
 Richard III.) 
 
 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 griev- 
 ances — 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 — Dispensing and Suspending 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 — (i) Freedom of Speech : Haxey's case — King not to take 
 notice of Speeches in Parliament — Yonge's case — Strode's case — • 
 Statute 4 Hen. VIII. — Freedom of Speech claimed by Speaker, 1541 
 — Declaration of Commons, 1621 — Cases of Eliot, Holies, and Valen- 
 tine — The privilege confirmed by Bill of Rights — (2) Freedom from 
 
XX I V Contents. 
 
 arrest : Bishop of St. David's case — Prior of Malton's case — Statute PAGE 
 II Hen. VI. — Petition of Commons, 5 Hen. IV. — Atwyll's case — 
 Thorpe's case — Ferrers's case ; Commons release a member by their 
 own authority — Speech of Henry VIII. — Smalley's case— Case of Sir 
 Thomas Shirley — Stat, i James I. ; first legislative recognition of the 
 privilege — Abuse of the privilege — Arrest for contempt of Court — 
 Lord Cromwell's case — Privilege not available on refusal to obey writ 
 of habeas corpus — Privilege not asserted on committal for contempt of 
 Court — But still subsists — (3) Right of Commons to determine con- 
 tested elections — Early abuses in Parliamentary elections — Regulated 
 by Statutes — Commons first intervene in election disputes temp. Ric. II. 
 — Nowell's case — Case of County of Norfolk — Goodwin and Fortes- 
 cue's case — Case of Ashby v. While— Czse. of * The Aylesbury Men ' 
 — The County PVanchise enjoyed by all Freeholders — At its maximum 
 under Henry IV. — First disfranchising statute, 8 Hen. VI. ; forty 
 shilling freeholders — Both electors and elected required to be resident 
 — Knights of the Shire required to be of gentle birth — Val- tti in 
 Parliament — Property qualification of Members — Borough Elections — 
 Who were the electors in boroughs? — History of Regencies — Parlia- 
 irient under Edward IV. and Richard III. — Benevolences — Sir John 
 Forlescue's testimony to the freedom of the Constitution . , . 323—379 
 
 CHAPTER X. 
 
 THE TUDOR PERIOD (1483-1603) — REIGNS OF HENRY VII., 
 HENRY VIII., EDWARD VI., MARY. 
 
 General characteristics of the Tudor Period — Henry VIT. : 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 — Insurrections in 1488 and 1497 — Benevolences — 
 Morton's Fork — Empson and Dudley — Parliament seldom summoned — 
 His riches made him practically independent — Henry VIII.: Taxation 
 — Wolsey's attempt to intimidate the Commons — Forced loans and 
 benevolences — Privy Seals — 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 proclama- 
 tions the force of law — Causes of the increased power of the Crown — 
 Popularity of Henry VIU. — Consolidation of the Kingdom — Wales — 
 Ireland — Poynings' Law — Edward \T. and Mary : character of their 
 civil government— Law of Treason — Proclamations — Insurrections of 
 1549 — Their origin — Act against unlawful assemblies — Violence of 
 Mary's reign — Powers of a Queen Regnant settled by Act of Parlia- 
 ment — Reviving independence of the Commons — met by creation of 
 rotten boroughs and by influencing the elections 330—415 
 
 CHAPTER XI. 
 
 THE REFORMATION IN ENGLAND. 
 
 The Reformation under Henry VIII. political and legal, rather than reli- 
 gious — Doctrinal changes under Edward VI. and Elizabeth an unin- 
 tentional consequence — But both were the effect of causes long in 
 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 Asfortatis Religiosorvm^ 35 
 
Contents. xxv 
 
 Edw. I., 1307— Statute of Provisors, 25 Edw. III., 1351— Statute page 
 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 Wyclifife's followers — Their implication in 
 insurrection of the Villeins, 1381 — Conservative reaction in consequence 
 — Henry IV. supports the prelates — Statute De Hacretico Comburendo, 
 1401 — Petition of the Commons for a secularisation of Church 
 property — Insurrection of the Lollards under Sir John Oldcastle, 1412 
 — Lollardry repressed, but not extinguished — Revives at beginning of 
 i6th 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 Wittenberg, 1517 — 
 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 — Some reform of the ecclesiastical system inevitable — 
 Precipitated by Henry VIII. 's divorce suit —The Reformation Parlia- 
 ment, 1 529- 1 536 — 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 praemunire — Pardoned on 
 payment of a large sum and admitting the King's supremacy — The 
 laity in a /ra^w^w/Vtr — Pardoned by Act of Parliament— 6Vjj. ///. ; 
 Act to restrain citations from one diocese to another — First-fruits 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 r/'///>^— 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. VII. : Dissolu- 
 tion of Smaller Monasteries—' Pilgrimage of Grace,' 1536 — The Larger 
 Monasteries dissolved — Was the suppression of the Monasteries justifi- 
 able ? — Distribution of the Church property — Its results — Doctrine of 
 the Anglican Church declared by Henry — Act of the Six Articles, 
 1539 — English translation of the Bible, 1538 — ' Institution ' and ' Eru- 
 dition of a Christian Man ' — Edward VI. — The Religious Reformation 
 under him — Insurrections, 1549 — Persecution — Mary — Re-establish- 
 ment of Papal religion — The Marian persecution — The Reformation 
 promoted by it . 416—458 
 
 CHAPTER XII. 
 
 THE TUDOR PERIOD — REIGN OF ELIZABETH (1558-1603). 
 
 Ecclesiastical policy of Elizabeth — Acts of Supremacy and Uniformity, 
 1559 — Oath of Supremacy and Allegiance — 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 dis- 
 loyalty—Elizabeth's title to the throne purely Parliamentary — Roman 
 Catholics in favour of hereditary claims of Mary Queen of Scots — Title 
 of House of Suffolk— Harsh treatment of Lady Catherine Grey— 
 
XXVI Contents. 
 
 Treason of Edmund and Arthur I'ole— Effect of Mary's flight into PAGE 
 England — Rebellion of Duke of Norfolk and Earls of Northumber- 
 land and Westmoreland, 1569— Bull of Pius V., 1570— Statutes of 
 1571 — Jesuits and missionary priests in England — Act of 1581 — The 
 Jesuit Campion — Torture in England — 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 — Archbishop Parker's ' Advertise- 
 ments,' 1565 — Puritan conventicles — Attacks on Episcopacy — Cart- 
 wright's • Admonition to the Parliament ' — Archbishop Grindal — 
 Archbishop Whitgift — High Commission Court established, 1583 — 
 The oath ex officio — Martin Mar-Prelate tracts — Puritan libellers 
 punished vsrith death — influence of Scotch ecclesiastical affairs on 
 England — Presbyterianism in England, 1591 — 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 commit- 
 ments — Remonstrance of the Judges against them — Illegal proclama- 
 tions — Restrictions on printing and bookselling — Elizabeth's economy 
 — occasional forced loans, which are punctually repaid — Administra- 
 tion of Lord Burleigh — Puritan ascendency in House of Commons — 
 Conflicts with the Crown (i) as to settlement of the succession, (2) as 
 to ecclesiastical reforms — Speech of Peter Wentworth in 1576 — Mr. 
 Cope's Bill and Book, 1588— Parliament of 1593— Elizabeth's defini- 
 tion of liberty of speech — The Succession question again brought for- 
 ward by Peter Wentworth — Morice's bill for reform of ecclesiastical 
 courts — Causes of the general submissiveness of the Commons — 
 Successful opposition to Monopolies, 1601 — The Poor Laws — Privi- / 
 
 leges of Parliament— Storie's case, 1548 — Copley's case, 1558 — Hall's 
 case, 1581— Dr. Parry's case, 1585 — Bland's case, 1586— Bribery at 
 elections punished — 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 ' . 459— 5^6 
 
 CHAPTER XIII. 
 
 THE STUART PERIOD (1603-1688) — I. 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 educa- 
 tion — His political antipathy to Nonconformity — Arbitrary nature of 
 his civil government— Theory of Divine Right — A conflict with the 
 House of Commons inevitable — James is the aggressor — First Parlia- 
 ment, 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— The Post-nati :—Q2X\\xv% case- 
 Intermission of Parliament, 1607-10 — Illegal impositions on Merchan- 
 dise— Z?a/^j'j case, 1606— The ' Book of Rates,' 1608-Sess. IV. 1610. 
 Remonstrance against impositions — Complaints against High Com- 
 mission Court and Royal Proclamations — Cowell's ' Interpreter ' — 
 King James's proclamation suppressing it — 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 Par- 
 
Conteitts, 
 
 xxvu 
 
 liament — His method of raising money — His financial difficulties — The PAGE 
 'Undertakers' — Second Parliament, 1614. Impositions denounced — 
 Bishop Neile— Dissolution of the 'Addled Parliament,' June, 1614 — 
 Members sent to the Tower — Importance of the Step — Six years of 
 arbitrary government — A General Benevolence — Protests against it — 
 Imprisonment of Oliver St. John — Prosecution of Peacham, 161 5 — 
 Collision between the King and Chief Justice Coke — Case of Com- 
 mendams, 1 616— Independence of the Bar assailed — Dismissal of Coke 
 from the Chief Justiceship — His disgrace an historical landmark- 
 Foreign policy of James — Third Parliament, 1 62 1. Sess. I. Revival 
 of impeachments — Impeachments of Mompesson, 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 — Remonstrance 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 character. First Parliament^ 
 1625. Its dissolution, August, 1625 — Opposition to Buckingham — 
 Speech of Sir R. Cotton — Second Parliament, 1626. Impeachment of 
 Buckingham — The King's message — Reply of the Commons — Im- 
 prisonment of Members — Attack on Privileges of the Lords — Earl of 
 Arundel — Earl of Bristol — Hasty dissolution, June, 1626— Expedients 
 to raise money — A general loan demanded and enforced — Darnets 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 — Thte Royal Assent given in due form — Text of 
 Petition of Right, with Notes — Subsidies granted — Tonnage and 
 Poundage — Prorogation of Parliament — Sess. II. 1629. Merchants 
 imprisoned for refusing to pay Tonnage and Poundage — Copies of 
 Petition of Right circulated with King's first answer annexed — Selden 
 complains to the House — Question of Privilege, Rolle's case — Charles 
 renounces right to levy Tonnage and Poundage — Conservative position 
 of the Commons in politics and in religion — Position taken up by King 
 and Laud in the religious controversy — Toleration unthought of by 
 either party — Question of Tonnage and Poundage resumed — The 
 officers who seized Rolle's goods summoned — King refuses to allow 
 them to be questioned, and orders the Commons to adjourn — A further 
 adjournment ordered — The Commons refuse — Tumult in the House — 
 The three Resolutions of the Commons — Dissolution of Parliament, 
 March, 1629 507—577 
 
 CHAPTER XIV. 
 
 THE STUART PERIOD — II. FROM THE PETITION OF RIGHT TO 
 THE RESTORATION (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 accept 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 — Leightort — Lilbufne — 
 
xxviii Contents. 
 
 * Sion's Plea against Prelacy ' — Prynne, Burton, and Bastwick — Case PAGE 
 of Ship-money — Plrst writ of Ship-money, 1634 — Second writ, 1635 — 
 Resistance to the collection — Third writ, 1636 — Hampden's refusal to 
 pay — Extra-judicial opinions 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 Government — 
 Ihe Short Parliament, 1640. Its moderation and loyalty — Demand of 
 an immediate supply — Tlie Commons insist on redress of grievances — 
 Speech of Edmund Waller — Conference with the Lords on grievances 
 — Exclusive right of Commons to initiate Money Bills — Amendments 
 to Money Bills by the Lords — 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 re- 
 sumes his despotic courses — Convocation continued — promulgates a 
 new set of Canons — New oath for preventing Innovations in Religion 
 — Failure of Military operations against the Scots— Great Council of 
 Peers at York — Ihe Long Parliament, 1640. Its characteristics — 
 Speech of Pym on the state of the Kingdom — Impeachment of Straf- 
 ford — His execution under a bill of Attainder, 1641 — Impeachment of 
 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 — Compul- 
 sory Knighthood abolished — Extension of Royal Forests annulled — 
 Impressment declared illegal— Note on Impressment— 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 invalidity of statutes [passed 
 without his internal assent] — The Parliamentary Leaders apprehen- 
 sive of danger — and 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 — Re-assembling of Parliament, Oct. 1641 — 
 Motion of Pym on the new Army Plot — The Grand Remons' ranee 
 laid on table of the House — organised 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 contests between Charles I. and his Parliament — 
 The Revolutionary Period, 1642-1660— Results of the Revolutionary 
 Period— Note on Collisions between the two Houses .... 578—638 
 
 CHAPTER XV. . 
 
 THE STUART PERIOD — III. FROM THE RESTORATION TO THE 
 PASSING OF THE BILL OF RIGHTS (1660-1689). 
 
 Charles II. (1660--1685). Chief Constitutional statutes of his reign- 
 Abolition of Military tenures— Hereditary excise granted in exchange 
 — 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 Ac- 
 counis—Z/adeas Cor/>j4s Act, 1679— Ancient remedies for illegal de- 
 tention — Their inadequacy — Abortive attempts at a remedy — yenkes^s 
 
Contents, xxlx 
 
 case^ 1676— Provisions of the Habeas Corpus Act, 1679 — Its defects page 
 —Remedied by Bill of Rights and Statute 56 Geo. III. c. iod— Acts 
 against Nonconformists— Corporation Act, 1661 — Test Act, 1673 — 
 Events which led to its being passed — Bill for relief of Dissenters — 
 Parliamentary Test Act, 1675 — 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 — Despotic 
 power of Charles II. during the last years of his reign — ^James II. 
 (1685-168S). His despotic designs — Circumstances favourable to 
 them— 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 
 power — H'alcs's case — Deprivation of the Vice-Chancellor of Cambridge 
 — Expulsion of the Fellows of Magdalen College, Oxford — New High 
 Commission Court— The King's declaration for liberty of Conscience 
 — 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^- William 
 announces his intentions — The Lords give way, and vote that William 
 and Mary be proclaimed King and Queen — The Commons suggest con- 
 ditions — Postponement of reforms — Declaration of Right — Tender and 
 acceptance of the Crown — The Scottish Convention — Salutary Con- 
 sequences of the Revolution— Text of the Bill of Rights, with 
 notes 639—688 
 
 CHAPTER XVI. 
 
 PROGRESS OF THE CONSTITUTION SINCE THE REVOLUTION. 
 The Act of Settlement : The Cabinet System. 
 
 The Legal Code of the Constitution— Growth of the Unwritten or Custo- 
 mary Constitution — Text of the Act of Settlement, with notes- 
 Law of Aliens — Growth of the Cabinet — The Cojicilium Ordinariurn — 
 The Privy Council — Cabinet Council — The 'Cabal' Ministry, 167 1 — 
 Temple's Scheme for reorganisation of the Privy Council, 1679 — The 
 Cabinet System resumed — Change in its essential characteristics— Party 
 government — William III. opposed to it — but adopts it on advice of 
 Sunderland — ' The Junto' — Attempted revival of ancient authority of 
 Privy Council by Act of Settlement — Queen Anne's dislike of party 
 government — Final establishment of the Cabinet system under the first 
 two Georges — Important effects of their indifference to English politics 
 — Macaulay's description of the Ministerial system — Ministry and 
 Cabinet not synonymous — Cabinet Council distinct from Privy Council 
 — Essential that Ministers should be members of the Legislature — 
 Secrecy of the Cabinet — The Premier — Relations of the Cabinet to the 
 Crown and to Parliament ; to the House of Lords ; and to the House 
 of Commons — Three fold capacity of Cabinet Minister — Internal rela- 
 tions of the Cabinet — Of each member to the Cabinet as a whole, and 
 to its head — Increased security of the Crown and of Ministers under 
 
XXX Contents. 
 
 Cabinet system— Exclusion of placemen and pensioners fron\ the House pace 
 
 of Commons — The ' Place Bill ' of 1742 — Lord Rockinirham's Civil 
 
 List Act, 1782— Secret Pensions — Exclusion of the Judges from House 
 
 of Commons 689 — 715 
 
 CHAPTER XVII. 
 
 PROGRESS OF THE CONSTITUTION SINCE THE REVOLUTION — 
 
 {continued), 
 
 L Kingship since the Revolution. 
 
 Legal prerogatives of the Crown untouched at the Revolution — but now 
 practically vested in its responsible Ministers — Note on Convocation — 
 Personal influence of the Sovereign — Causes which tended to induce 
 its decline — Reaches its lowest point under George L and George H. 
 — Long struggle of George IIL against the Ministerial System- 
 Character of the King — 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 Courts— Arbitrary measures of the 
 King, during the Bute and Grenville ministries — The Rockingham 
 ministry, 1 765 — Organised opposition in Parliament by the ' King's 
 friends' to repeal of the Stamp Act — Ministry of Grafton and Pitt, 
 1766 — Influence of the King attains its maximum during Lord North's 
 Ministry, 1770-82 — The Royal z^^^ — Mr. Dunning's Resolutions on the 
 influence of the Crown, 1780 — Fall of Lord North's Ministry, 1782 — 
 Rockingham again Premier — Ministry of Lord Shelburne, 1782 — The 
 Coalition Ministry, 1783— Opposition of the ' King's friends ' to Fox's 
 India Bill, 1783 — Declaration of the Commons against the use of the 
 King's name — Abrupt dismissal of the Coalition Ministry, 1783 — 
 Critical relations of the King and Parliament — Mr. Pitt premier, 1783 
 — General election of 1784 — Triumph of Pitt and the King — The 
 King's personal influence diminished — but still very powerful — Diminu- 
 tion 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, 1835 — The 'Bedchamber 
 question,' 1839 — Sir Robert Peel's Resolution of want of confidence in 
 the Ministry, 1841 — He becomes Premier — The Queen's memorandum 
 on the relations of a Secretary of State to the Crown, 1850 — Constitu- 
 tional right of dismissing a Minister — asserted in the removal of Lord 
 Palmerston from the Foreign Secretaryship, 1851 — Increased power of 
 the Executive — Revenues of the Crown — The Civil list — Crown lands 
 — Private property of the Sovereign 716 — 741 
 
 II. The House of Lords. 
 
 Number of Peers — Rapid increase under the Stuart Kings — Addition of 
 16 Representative peers of Scotland in 1707 — 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 — The Peerages of Scotland and Ireland — Changes in Character 
 and Composition of House of Lords — Its political position — Its oppo- 
 sition to the Reform Bills of 1831-32 — overcome by threatened crea- 
 tion of peers — Earl Grey's vindication of the proposed creation — An 
 extraordinary creation of peers equivalent to a dissolution of the House 
 of Commons— Political weight of the Upper House affected by small 
 attendance and indifference to public business of great body of its 
 
Contents. xxxi 
 
 members, and by practice of giving proxies— Proxies discontinued page 
 since 1868 — Attempts to revive life peerages 742—750 
 
 III. The House of Commons. 
 
 Number of members — Defects of the Representative system — Scottish repre- 
 sentation — Irish representation — Bribery of members — Parliamentary 
 Reform advocated by Lord Chatham in 1766 — Wilkes' scheme of 
 reform, 1776— Mr. Pitt's advocacy of reform, 1782-85 — The question 
 revived after the Peace of 181 5 — Passing of the Reform Act of 1832 — 
 The principal provisions — The Scotch and Irish Reform Acts, 1832 — 
 The Reform Act of 1867— Scotch and Irish Reform Acts, 1868— 
 Electors of the United Kingdom — 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, 1 7 16 — Attempts to repeal the Septennial Act — Abrogation of old 
 rule that Parliament was dissolved by death of the Sovereign — Privi- 
 lege of Parliament since the Revolution — sometimes wielded by the 
 Executive for oppression of popular liberty — Expulsion of Sir R. 
 Steele, 17 14 — Proceedings against Wilkes, 1763— His expulsion from 
 the House — Declared incapable of re-election, 1768 — The declaration 
 expunged from the Journal of the Commons, 1782 — Disqualification of 
 Members — Cases of Smith O'Brien, 1849, O'Donovan Rossa, 1870, 
 John Mitchell, 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 — Motives for secrecy 
 — The ' Diurnal Occurrences of Parliament ' : 1641-1660 — Votes and 
 proceedings ordered to be printed, 1680 — Debates published anony- 
 mously — Complaints of unfairness — Contest with the Printers, 1771 — 
 and with the Lord Mayor and Aldermen of London — The Lord Mayor 
 (Brass Crosby) and Alderman Oliver committed to the Tower — Report- 
 ing still a breach of privilege — Exclusion of Strangers — Resolution of 
 the House, 1875 — Facilities afforded for reporting — 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. Han- 
 sard— Kx^i of Parliament to publish established by Act 3 & 4 Vict. 
 c. (^—Wason v. Walter, i%(i'^ . .751-782 
 
 IV. 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 
 11. — Lord Hardwicke's Marriage Act, 1753 — Relaxation of religious penal 
 code under George HI.— Principles of Toleration upheld in Judgment 
 of House of Lords in case of the City of London and the Dissenters, 
 1767 — Roman Catholic Relief Acts, 1778 and 1791 — Statutes relieving 
 Dissenters from Religious disabilities — Their Civil disabilities — Early 
 attempts at relief — Repeal of Test and Corporation Acts, 1828 — 
 Roman Catholic Emancipation Act, 1829 — Repeal of penalties affect- 
 ing Roman Catholic religion and education — Completion of Civil 
 enfranchisement of Dissenters — ^Jewish disabilities— Admission of Jews 
 to Parliament, 1858 — Civil registration of births, marriages, and deaths, 
 1836— Dissenters' Marriage Bill, 1836— Universities Tests Act, 1871 . 782—792 
 
 V. Liberty of the Press. 
 
 The Censorship — The Press under James I. and Charles I. — The first 
 Newspaper, the Weekly Newes, in 1623 — Continuance of the 
 
xxxii Conte7its. 
 
 Censorship under the Commonwealth — MiUon's Areopagitica — page 
 Licensing Act, 1662 — To publish anything concerning the Government 
 is declared criminal by the Judges— Unofficial newspapers stopped — 
 Their place supplied by the Coffee-houses and News-letters — Licensing 
 Act revived, 1685 — Finally expired, 1695 — '^^^ Press theoretically free, 
 but still subject to restraints — Stamp Duty on Newspapers— The ' Six 
 Acts,' 1819 — 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 under General Search- Warrant — ^Junius's Letter to the 
 King, 1769— Strained interpretation of law of Libel — Trial of Wood- 
 fall for publishing the Letter to the King, 1770 — Dean of St. Asaph's 
 case, 1779 — Stockdale's case, 1789 — 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 esta- 
 blished — Conclusion 792—803 
 
 APPENDICES TO FOURTH EDITION 805—848 
 
 INDEX 849—883 
 
 LIST OF AUTHORS AND EDITIONS CITED BY THE EDITOR xxxiii-xli 
 
LIST OF AUTHORS AND EDITIONS CITED 
 BY THE EDITOR. 
 
 American Law Review, The. St. Louis, Mo., U.S.A. Cited in App. D. 
 
 Amos, Sheldon, M.A., late Professor of Jurisprudence, University College, London. 
 
 The Science of Politics (International Scientific Series). Lond, 1883. 
 Anderson, William. The Scottish Nation. Edinb. and Lond. 1865-6. 
 Antiquary, The. Lond. Elliot Stock. 
 Aragon, D. Pedro of, Treaty of Alliance by Marriage, for Don Alfonso, with Filia 
 
 Primogenita of Ediv. I., 1 273. Text'xa Eng. Hist. Rev., April, 1890. 
 ArchcEological Review, The. Lond. Nutt. 
 Ashley, W. J. Introduction to Economic History and Theory in Aliddle Ages. 
 
 Lond. 1888. 
 Baker, Sir Sherston, Bart., Recorder of Barnstaple and Bideford. Art. A 
 
 Charge delivered by Sir Leoline Jenkins at an Old Bailey Admiralty Sessions, 
 
 1674-5, in La7v Magazine and Review for Aug. 1885. Art. Coroners and Fire 
 
 Inquests, in Law Magazine and Review for May, 1887. 
 Baudi di Vesme, Carlo. Vicende della Propriety, in Italia. Turin. 1836. 
 
 Bazalgette, C. N., and Humphreys, G. Local and Municipal Government. 
 Lond. 1885. 
 
 Beard, Charles, Hibbert Lectures for 1883, on The Reformation in relation to 
 
 Modern Thought. Lond. 1883. 
 Beaudoin, a. Art. Homme Lige, in Nouv. Rev. Hist, de Droit. Paris. Larose. 
 
 1883. 
 Belgian Netus, The. Brussels. 
 Benfante, G. B. // Salvamento e VAssistenza nel Diritto Marittimo. Turin. 
 
 Loescher. 1889. 
 Beveridge, D. Culross and Tulliallan. Edinb. and Lond. 1885. 
 BiGELOW, Melville M. History of Procedure in England. Lond. 1880. 
 Birch, W. De Gray, F.S.A. A Popular Account of Domesday Book. Lond. 
 
 S.P.C.K. 1887. 
 Blunt, J. PL, M.A. Dictionary of Doctrinal and Historical Theology. Lond. 
 
 2nd ed. 1873. Cited in App, C. 
 Blunt, J. H., M.A., and Phillimore, [Sir] Walter G. F., D.C.L. Book of 
 
 Church Law. Lond. 1876. 
 Bosnia, The Land System of. Art. in Law Magazine and Review, No. ccxxiii,, for 
 
 Feb. 1877. 
 BouTMY, Emile, Director, Free School of Political Science, Paris, Art. Les 
 
 Sources de la Constitution Anglaise, in Nouv. Rev. Hist, de Droit. Paris. 
 
 Larose. 1878. 
 Bowden, J. W., M.A. Life and Pontificctte of Gregory VII. Lond. 1840. 
 Brewer, Prof. J. S., M,A, History of Henry VIII. Ed. by James Gairdner. 
 
 Lond. 1884. The Endoivments and Establishment of the Church of England. 
 
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 C.H. X 
 
 %. 
 
xxxiv List of Authors and Editions Cited. 
 
 Bridges, J. H., B.A., Fellow of Oriel College, Oxford. Thejexvs of Europe in the 
 
 Middle Ages, in Oxford Essays for 1857 
 British Archaeological Association, yi^wrwa/ of. Lond. Paper on the County 
 
 Institutions of Hungary, by Augustus Goldsmid, F.S.A. Cited in App, E. 
 
 Bryce, James, D.C.L., M.P. Art. by, on The Referendum, in The Speaker, 19th 
 Apr., 1890. 
 
 Buckingham, Duke of, Documents illustrating Impeachment of Ed. by S. R. Gar- 
 diner. Camd. Soc. 1889. Cited in App. O. 
 
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 1890. 
 Burnett, George, The late, LL.D,, Lyon King of Arms. The Exchequer Rolls of 
 
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 Bute, History of the County of By J. Eaton Reid. Glasgow. T.Murray. 1864. 
 
 C, G. E. A New Peerage by, in Genealogist, N.S., i., ii. 1884-5. 
 
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 Suppression of the Monasteries. Narratives of the Reformatio7i, 1532-56. Three 
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 jyig the Prayer-Book of 1 549. Ed. by N. Pocock, M.A. 1884. Documents 
 illustrating the Impeachment of the Duke of Buckingham, 1626. Ed. by S. R. 
 Gardiner, LL.D., Director. 1889. 
 
 Campbell, Lord, Life of. By Hon. Mrs. Hardcastle. Lond. 1880. 
 
 Cavour, II Conte di, in Parlamento. Ed. by I. Artom and A. Blanc. Florence. 
 Barbera. 1868. Cited in App. E, 
 
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 Souabe. Paris. 1 841-4. 
 
 Church Quarterly Review, The. Lond. Spottiswoode and Co. 
 Church Review, The. Lond. Church Printing Co. 
 
 Clarence, Dukedom of Arts., by Rev. J. Maskell and others, in Notes and Queries, 
 7th S., ix. 481 ; X. I, 42, 62, 117, 171. 
 
 Clarke, Hyde, V.P.A.I. The Iberian and Belgian Influence and Epochs in 
 Britain. Lond. 1883. 
 
 Clifford, Frederick. A History of Private Bill Legislation. Lend. 1885-7. 
 
 Collins. Peerage of England. Ed. by Brydges. Lond. 1812. 
 
 Comparative History, The, of England and France during the Middle Ages. Art. by 
 C. V. Langlois, in Eng. Hist. Rev., April, 1890. 
 
 Constittition of the State of Connecticut, Celebration of the i^oth Anniversary of the 
 adoption of the First, 1639. Hartford, Conn. Published by Connecticut His- 
 torical Society. 1889. 
 
 Cornhill Magazine, The. Lond. Smith and Elder. 
 
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List of Authors and Editions Cited, xxxv 
 
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 The Earldom of Mar, in Sicnshijte and in Shade, Edinb. 1882. 
 
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 Davidson, John, D.D. Inverurie and the Earldom of the Garioch. Edinb. David 
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 1887. 
 Dehaye, Alexandre. Les Municipalites Anglaises. Paris. Cotillon. 1883. 
 
 (Reprint from Annuaire de Legislation Etrangere for 1883, pub. by Society of 
 
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 Democracies, Nature of . Art. in Quart. Rev., Oct. 1889. 
 
 Democracy in England. Art. by H. Labouchere, M.P., in Forum^ N.Y., Jan. 1890. 
 
 Democrcuy in Switzerland. Art. in Edinb. Rev., Jan. 1890. 
 
 Derbyshire Archaeological and Natural History Society, Journal of. 
 
 Burton Chartulary, ed. by Gen. Hon. G. Wrottesley. The Fitzherberts of 
 
 Norbury, by J. C. Cox, LL.D. 
 Dicey, A. V., M.A., Art. by, on The Referendum, in Contemporary Review, April, 
 
 1890. 
 Dictionary of Christiatt Antiquities. Ed. by Smith and Cheetham. Lond. 1 876-80. 
 
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 DiGBY, K. E., M.A., formerly Vinerian Reader in the University, Oxford. An 
 
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 Dilke, Lady. Art. The Next Extension of the Suffrage, in Universal Rev. for 
 
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 Dixon, R. W., M.A., Hon. Canon of Carlisle. History of the Church of England 
 
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 1890. 
 Domesday Book, A Popular Account of By W. De Gray Birch, F.S.A. Lond. 
 
 S.P.C.K. 1887. 
 Domesday Book, The Study of. Paper by Stuart Moore, F.S.A., in Domesday 
 
 Studies. 
 Domesday Studies. Published under direction of the Domesday Commemoration 
 
 Committee. Vol. i. Lond. 1887. 
 Dowell, Stephen, M.A. History of Taxes and Taxation in England. Lond. 
 
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 DuCANGE. Glossarium Medice ct Infimce Latinitatis. Paris. Didot. 1840-50. 
 DURUY, V. Histoire du Moyen Age. Paris. Hachette. 2nd ed. 1864. 
 East Anglian, The. Ipswich. New Series, vol. i., 1885. Letters in, by Sir 
 
 William Parker, Bart., and Rev. C. H. Evelyn White, M.A., Editor, on Sales 
 
 and Grants oi Nativi, 12th and 13th cents. 
 Economic History and Theory i?t Middle Ages, Introduction to. By W. J. Ashley. 
 
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 Edinburgh Ahnanack, Oliver and Boyd's, for 18 13. Edinb. 1813. 
 Edinburgh Reviezu, The. Lond. Longmans. 
 
 Elliot, Hon. Hugh. Life of Sidney, Earl of Godolphin, K.G. Lond. 1888. 
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XXX vi List of Atithors and Editions Cited. 
 
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 Forsyth, Frederic Gregory, Member of the Virginia Historical Society. The 
 
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 c. h. d 
 
Constitutional ^istorg. 
 
 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 
 EngHsh people is to determine the elements of the English ^"S^^^^- 
 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 ; yet in all some one element has maintained 
 a clear and decided predominance. In the English people 
 this predominant element is the German or Teutonic. 
 The Teutonic conquest of Britain was something more Teutonic 
 than a mere conquest of the country : it was in all senses Britain^^ " 
 a national occupation, a sustained immigration of a new a. d. 450- 
 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 invaders 
 had established a dominion in Britain, extending 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 
 
 C.H. B 
 
2 From the TeiUonic Conquest of Britain [Ch. 
 
 themselves for a time in several small states.^ The remnant 
 of the country which they retained was indeed at first of 
 considerable extent, including not only modern Wales but 
 the great kingdom of Strathclyde, stretching from Dum- 
 barton 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 any length of time their 
 No general ever-decreasing independence. During the long-continued 
 of Races; ^^^^ peculiarly ferocious series of contests between the 
 natives and invaders, vast numbers of the flower of the 
 British race perished. Many Britons sought refuge in 
 emigration to the Continent. Not a few of the less war- 
 like 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. ^ But the Germanic element 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.'^ Since the first immigration, each infusion of 
 
 1 [It is difficult to see the applicability of the epithet " soon " to a process 
 which, according to the received dates given in the text, lasted for a hundred 
 and fifty years. The general result of the Teutonic immigration is indisputable. 
 It ended in Teutonic supremacy, and crushed back those of the Britons who 
 maintained their independence into the western half of the Roman Province 
 of Britain. But there seems to be no use in attempting to maintain in the face 
 of acknowledged facts, that the Britons were "soon driven back." The 
 contrary would appear to be far nearer the truth. — Ed.] 
 
 2 This hypothesis is strengthened by the fact that the few words in our 
 language which have been retained from the original Celtic (about thirty-two 
 in number, excluding proper names) have all relation to inferior employments, 
 and for the most part apply exclusively to articles of feminine use or to the 
 domestic occupations of women. See a list by the late Rev. R. Garnett, in 
 his Linguistic Essays. [But Pearson, Hist. Eug. Early and Middle AgeSy 
 1867, I. 102, cites another list by Brandes, including lance, spear, &c. 
 
 For arguments in favour of a considerable Celtic influence, see, as to 
 language, Vaughan, Revolutions of Eng. Hist., and Kennedy, Ethnological 
 and Linguistic Essays, 1 861, and as to law, Law Magazine and Revieiu^ 
 No. cclviii., for Nov. 1885, Art. by J. Williams, B.C.L., The Welsh Element 
 in English I^aiv. — Ed.] 
 
 ^ Stubbs, Select Charters, Introductory Sketch, p. 3. See also Archdeacon 
 Squire, Anglo-Saxon Government in Germany and England (1745) ; P>ee- 
 raan, Norm. Conq. vol. i. ; and Stubbs, Const. Hist. vol. i. The arguments 
 
I.] to the Norman Conquest of England. 3 
 
 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 in- 
 stitutions, were yet descended from a branch of the same 
 ethnic stock. 
 
 But whatever be the proportion in which the various or of Institu- 
 national elements have coalesced, it is certain that the 
 principles of our Constitution are in no wise derived from 
 either Celt or Roman. The civilisation of the Romans, 
 for the most part, departed with them.^ The Roman Law Roman Law. 
 disappeared for a time from the judicial system of our 
 country. After the conversion of the English to Christi- 
 anity, however, it must indirectly have exercised con- 
 siderable influence on Anglo-Saxon jurisprudence, through 
 the medium of the dignified ecclesiastics who in Witena- 
 gemot and Shiremot took so large a part in the making 
 of laws and the administration of justice.^ Directly, also, 
 it was re-introduced from the Continent, in the I2th 
 century, as a consequence of the revived study of Juris- 
 prudence which had there taken place. In the year 1 149, 
 
 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. [The late] 
 Mr. Coote, in his Romans of Britain (1878), also maintains the permanence 
 of the population of Britain, but then he affirms that the greater part of the 
 island was occupied by a Belgic race, who began to settle here before the 
 invasion of Julius Caesar, and that these Belgians were Teutonic. [The late 
 Dr. Guest, in the interesting posthumous collection of his various writings, 
 Origiftes Celticce, 1883, treats the Belgae as a Gaelic race, and akin to the 
 Fir-Bolg of Ireland. Dr. Hyde Clarke argues for both an Iberian and a 
 Belgic period of civilisation in Britain, in his Essay on The Iberian and 
 Belgian Influence and Epochs in Britain, 1883, For him the Belgaa are 
 examples of ' one class of Iberians,' the Iberians themselves being 'nowhere 
 uniform.' — Ed.] 
 
 ^ Mr. Coote (Romans of Britain) has ably urged all that can be said for a 
 more complete survival of the Roman civilisation, ' sheltered in the ark of the 
 cities,' 
 
 2 L'Eglise defendit pied a pied le terrain de la societe romaine ; elle en 
 fut, sous le gouvernement poliiique des barbares, la representation eclairee et 
 courageuse ; elle en recueillit, elle en protegea la gloire passee. C'est a elle 
 principalement qu'est due la conservation de ce droit admirable, qui partage 
 encore aujonrd'hui avec le Christianisme la domination morale chez les peuples 
 civilises. Thierry, Tableau de I'Empire Romain, p. 359. 
 
From the Teutonic Conqtcest of Britain [Ch. 
 
 Vacarius, a distinguished Lombard Jurist, who had been 
 invited to England by Archbishop Theobald, established 
 a school of Civil Law at Oxford, and publicly taught the 
 Roman jurisprudence to a numerous and eager band of 
 students, for whose use he wrote his SummUy consisting 
 of annotated extracts from the Digest and the Code.^ 
 Although Vacarius was soon silenced by King Stephen, the 
 impulse which he had given to the study of Roman law 
 was not arrested. 2 The so-called Leges Henrici Primi 
 (written probably in the early part of Henry IL's reign) 
 contain many extracts from the Theodosian Code or the 
 Breviarium ; and the legal treatises of both Glanvill and 
 Bracton, the latter especially, are strongly marked by a 
 large infusion of Roman principles and terminology.^ As 
 a system, however, the Roman law was soon rejected in 
 England ; but some of its forms, and many of its prin- 
 ciples, were absorbed into and amalgamated with the sys- 
 tem which our own courts of Justice had been gradually 
 developing for themselves out of the primitive national 
 usages. Our language, and the main outlines of our poli- 
 tical and judicial institutions, are all inherited from our 
 Teutonic ancestors ; each has undergone a spontaneous 
 development during the course of centuries, each has 
 assimilated new elements ; but the national identity of 
 
 1 Gervas. Dorob. (Decern Script, col. 1665), in describing the strife between 
 Theobald, Archbishop of Canterbury, and the Papal Legate, Henry Bishop of 
 Winchester, says : ' Oriuntur hinc inde discordiae graves, lites et appellationes 
 antea inauditae. Tunc leges et causidici in Angliam primo vocati sunt. 
 Quorum primus erat Magister Vacarius. Hie in Oxonfordia legem docuit.' 
 Robertus de Monte is the authority for the date, 1 149, and for his compila- 
 tion of nine books from the Code and Digest 'qui sufficiunt ad omnes legum 
 lites quae in Schola frequentari solent decidendas.' 
 
 2 Vacario nostro indictum silentium, sed Deo faciente, eo magis virtus legis 
 invaluit quo earn amplius nitebatur impietas infirmare. Joh. Sarisb., Polycra- 
 ticus, lib. viii. c. 22. 
 
 •^ Of Bracton ' the entire form and a third of the contents were directly 
 borrowed from the Corpus Juris.' (Sir H. S. Maine, Anc. Law, p. 82.) 
 Bracton was largely indebted to Azo's Summa on the Code and Institutes 
 of Justinian. (Savigny, Geschichte des Romischen Rechts, iv. 583 seq.) Sir 
 Travers Twiss, in the Introductions to the several volumes of his new edition 
 of Bracton, has thrown fresh light on the dates and incidents of the great 
 legist's career. 
 
I.] to the Norman Conquest of England. \ 
 
 race, language, and institutions has never ceased to 
 exist.^ 
 
 The germs of our present constitution and laws must, Germanic 
 therefore, be sought in the primeval institutions of the first English 
 Teutonic immigrants. Of these institutions we have little institutions. 
 positive knowledge. According to Bede,^ the original im- 
 migrants consisted of the three kindred tribes of Angles, 
 Saxons, and Jutes. Of these Tacitus does not even men- 
 tion the Saxons or Jutes, and only names the Angles as 
 one of a number of North German tribes, without fixing 
 their locality. In the second 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 Holstein, Lauenburg, and Mecklen- 
 burg. Before the age of Bede the name of Saxon had 
 been extended from the designation of a single insignifi- 
 cant 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 suc- 
 cumbed to the Roman sway. 
 
 Scarcely, if at all, affected by contact with Roman in- 
 .fluences, the Teutonic tribes who invaded Britain had pro- 
 bably a less distinctly marked political organisation 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 
 
 ^ * 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 (b. 672, d. 735) records very few circumstances relative to the 
 English conquest of Britain from his own sources, but for the most part tran- 
 scribes the De Excidio Britanniae, composed about 560, of Gildas, b. 516. 
 
 [Morley, Eng. Writers before Chaucer, 1867, i. 348, places Bede's birth 
 *'in, or a few months before or after," 673. Robertson, Hist. Chr. Ch., 
 1874-5, iii. 29, "about the year 673." Morley, op. cit., says Gildas was 
 born "in or soon before the beginning " of the 6th cent. — Ed.] 
 
 ^ [With regard to the testimony of Tacitus, there have not b«en wanting 
 those who have seen in his Germania little more than an elaborate satire on the 
 
From the Teutonic Conquest of Britain [Ch. 
 
 Ancient 
 German 
 polity. 
 
 making due allowance for this difference, for the indistinct- 
 ness 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. 
 
 In the time of Tacitus, Germany appears to have been 
 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 com- 
 munity (the Mark} or Vicus)^ who annually allotted the 
 
 The Mark 
 system. 
 
 Roman morals of his day. And a still deeper incredulity has very recently 
 been manifested in France, where, according to the Belgian News, Brussels, 
 22nd Feb., 1890, ' M. Hochart has published a work on the authenticity of 
 the Annals and Histories of Tacitus, in which he endeavours to prove that 
 they are the work, not of Tacitus, but probably of an Italian scholar of the 
 15th century, Poggio Bracciolini.' It is scarcely probable, however, that 
 the general verdict of historians and men of letters will be reversed at this late 
 date.— Ed.] 
 
 * La constitution de la Marche parait dans Tacite. II la designe evidem- 
 ment dans son xxvi* chapitre par le mot agcr, qu'il oppose a arva [aj-va per 
 annos viutant, et superest ager\ et quand il dit que les barbares ainiaient k 
 entourer leurs habitations et leurs champs de vastes terrains vides \suam 
 quisque doimwi spatio circumdat, c. 16] pouvant leur servir de defense. Or 
 I'usage de la Marche est le signe d'une transition entre I'etat nomade et I'etat 
 agricole, entre le regime de I'entiere communaute de la terre et celui ou com- 
 mence k se montrer la propriete fonciere privee. En efFet la Marche est un 
 vaste territoire indivis qui s'etend au dela des cultures — un vrai boulevard. 
 Geffroy, op. cit.y p. 185. [On p. 179, Ji. i, Geffroy notes the extreme difficulty 
 of the celebrated passage in the Gerjjiania, c. xxvi., both as to readings and 
 sense. — Ed.] On the Mark system in its social, judicial, and political aspects, 
 see Kemble, Saxons in England ; G. L. Von Maurer, Gesch. der Marken 
 Verfassung, &c. ; Schmid, Gesetze der Angel-Sachsen ; Nasse, Agricultural 
 Community of the Middle Ages (by Ouvry) ; Stubbs, Const. Hist. vol. i. ; 
 Maine, Village Communities, Lects. i. and iii. [Cf. also, Garsonnet, Hist, 
 des Locations PerpSluelles, 1879, Germ. Mark, p. 40 seq. ; do. Merovingian 
 and Carolingian, p. 496 seq. ; Seebohm, Village Community in England, 1883; 
 Hearn, 7'he Aryan HouseJwld, 1879 ; G. L. Gomme, in Report of Glasgow 
 Archceol. Soc., 1885 ; Green, Making of England, 1881 ; Traces of Teutonic 
 Settlements in Sussex, by F. E. Sawyer, in ArchcBol. Journal, vol. xli. ; and 
 Digby, History of the Law of Real Property, 3rd ed., 1884. Cf. also, G. L. 
 Gomme, Art., Chippenham as a Village Community, Arch. Rev., vol. i. 
 pp. 102, 203; Prof. Kovalevsky, Villenage in England, Arch. Rev., vol. i. 
 p. 444 ; Origin and Grotvth of Village Commimities in Russia, lb. i. p. 266 ; 
 G. L. Gomme, Art., Village Community at Aston (1657), Arch. Rev,, vol. ii. 
 p, 29 ; W. J. Ashley, Introd. to Economic Histoiy and Theoiy in the Middle 
 Ages, Lond. 1888. For a recent account of the Servian village system, cf. 
 Revue Bleue, Paris, 1890, vol. 45, No. 7, pp. 198-204, Art., VEtat Social 
 de la Serbie, by Paul Seippel, who says, Ibid., 200, * Le village, c'est la 
 famille agrandie. II a sa slava, sa fete patronale. . . . Les Serbes voient dans 
 cette fete un des signes caracteristiques de leur race.* A remarkable instance of 
 
I.] . to the Nonnan Conquest of England, 
 
 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) ; and an aggregate oi pagi 
 made up the civitas, ox 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.^ Some of the tribes had kings selected from par- 
 ticular families ; others had not. But the King had only a 
 limited power,^ 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.* 
 
 They had also Duces, their leaders in war, elected pro- 
 bably from among the principes^ but whose authority was 
 based, not like that of the kings, on noble birth, but on 
 
 the persistency of archaic customs is furnished by M. Seippel in the circum- 
 stance that this Slava is kept up even by Bosnian famihes converted to 
 Mohammedanism, a fact which bears out the accountof the Bosnian Begs given 
 in the La%o Magazine and Revinu, No. ccxxiii., Feb. 1877, p. 232, Art., The 
 Land System of Bosnia. A volume on The Village Coyununity, from the pen 
 of Mr. G. L. Gomme, is announced as forthcoming in the Contemporary 
 Scientific Series, in Folk- Lore, vol. i. No. i., for March, 1890, from which it 
 would appear that Mr. Gomme proposes to use some of the results of Folk- 
 Lore to prove that the English village community is not simply an economical 
 institution, but one which contained much of the old tribal religion. How far 
 this may be capable of proof is perhaps a question. — Ed.] 
 
 ^ [The difficulty of understanding, and consequently of accurately rendering 
 these names given by Caesar and Tacitus to Teutonic institutions, is noted by 
 GefFroy, Rotne et les Barbares, Paris, 1874, p. 207, where he justly remarks 
 that those writers were evidently interpreting a foreign terminology which 
 they may not themselves have thoroughly understood. Pagus is connected by 
 Geffroy, p. 209 (w. i), following Rudorff, Groinatici Veteres, ii. 239-40, with 
 pax, pango, Trci-yw, irriyvv/xi, and vicus with oIkos. — Ed.] 
 
 2 De minoribus rebus principes consultant, de majoribus omnes ; ita tamen 
 ut ea quoque quorum penes plebem arbitrium est, apud principes pertrac- 
 tentur. — Tac. Germ. c. 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 exist- 
 ence of this triple constitution among the Germans. 
 
 3 Nee regibus infinita aut libera potestas. — Tac. Germ. c. vii. 
 
 ■♦ Eliguntur in iisdem consiliis et principes qui jura per pagos vicosque 
 reddunt. Centeni singulis ex plebe comites consiUum simul et auctoritas 
 adsunt. Id. c. xii. 
 
8 ' From the Teutonic Conquest of Britain [Ch. 
 
 personal valour.^ 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,^ receiving in return such 
 presents as their leader could confer. 
 
 The power of all the chiefs, whether reges, duces, or prin- 
 cipes, was greatly limited. All important State affairs were 
 discussed and determined in the national assemblies, 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 large 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 cultiva- 
 tors 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 noblf blood and some were 
 not ; but this distinction carried with it no inequality of 
 political rights. Military valour was shared by the Ger- 
 mans 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-pervading ; it formed 
 the basis of social organisation, and entered into the mili- 
 tary, the legal, and the territorial arrangements.^ Side by 
 
 * Reges ex nobilitate, duces ex virtute sumunt. Tac. Germ. c. vii. 
 
 2 In pace decus, in bello praesidium. Id. c. xiii. [For the Celtic cotniUs, 
 see Lefort, Le Droit et les Institutions dts Gaulois. Paris : Thorin, 1877. 
 —Ed.] 
 
 3 See Tacitus, op. cit., for the importance of the family tie ; its bearings on 
 
I.] to the Norman Conquest of England, 9 
 
 side with it may be discerned the germ of Feudalism in the 
 relation existing between the princeps and his comiteSy though 
 it was as yet unconnected 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 islsfnd home. But the process of migration 
 and conquest necessarily produced certain modifications 
 and developments of the primitive institutions. One of 
 the earliest of these developments was the institution of 
 Royalty. 
 
 According: to the Saxon Chronicle, the chieftains of the The Teu- 
 
 _ , ,,.. -111 1 -1 c T^ 1 J tonic leaders 
 
 first settlers were only distmguished by the title ot Ealdor- assume the 
 
 man, or Heretoga, the former word expressing the civil, ^^^S^^ ^^^le. 
 the latter the military, aspect of the same office.^ 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 de- 
 noting his altered relation to his followers.^ The word 
 Cyning, or King, [probably] connected [in Teutonic thought] 
 with 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 
 
 the host, c. 7 ; feuds, c. 21 ; inheritance, c. 20 ; the kin of the unfaithful wife, 
 c. 19; exogamy unusual, c. 4. Geffroy (<?/. cit., p. 207), says: II est facile 
 de distinguer dans les recits de Cesar et de Tacite I'existence de petits 
 groupes d'autant mieux constitues que les cercles en sont plus etroits, et qu'on 
 se rapproche d'avantage du groupe le plus simple et le moins nombreux, celui 
 de la famille. 
 
 1 S. a. 449 (of the Jutes) : Heora heretogan .... Hengest and Horsa. 
 S. a. 495 (of the West Saxons) : Her comen twegen ealdornien on Brytene, 
 Cerdic and Cynric. — A.-S. Chron, ; cf. Freeman, Norm. Conq. i. 77. 
 
 2 [The text here, and immediately above, lays down the early development 
 of Royalty in Teutonic Britain ; and the earliness of the kingly title, and its 
 identity with that of 'chief,' or 'great man,' is similarly involved in the 
 language of Mr. Digby, Hist, of the Law of Real Property (3rd ed., 1884). 
 But it appears difficult to consider a ' development ' early, or an assumption 
 'soon' made, which does not shew itself for nearly a century after the 
 Teutonic conquest had commenced. With regard to the position of the Heretoga 
 among the Germanic nations, he was, says Reichel, See of Rome in the Middle 
 Ages, 1870, p. 561, 'a leader in war, belonging to a privileged family, who, in 
 consequence, was said to be descended from the god of war ; but he was after 
 all one of the warriors.' The sanctity which came to be attached to the person 
 of the King was, Reichel shews, due to the influence of the Church.— Ed.] 
 
lO 
 
 From the TeiUonic Conquest of Britain [Ch. 
 
 Conversion 
 of the 
 English to 
 Christianity 
 (597-681). 
 
 National 
 character 
 of the 
 Church. 
 
 descend, invested with a semi-sacj-ed character the authority 
 which his own prowess and the will of the people had con- 
 ferred upon him. 
 
 The conversion of the English to Christianity exercised 
 an important influence upon the national development. 
 The Church not only introduced a higher civilisation, miti- 
 gated the original fierceness of the heathen conquerors, 
 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 organised system of ecclesiastical synods 
 they found a pattern by which to regulate the procedure of 
 their own political assemblies. From the first the Church 
 entered into the closest alliance with the State, and while 
 paying respectful deference to the Roman See, grew up 
 with a distinctly marked National character. Theodore of 
 Tarsus, enthroned Archbishop of Canterbury in 668, re- 
 duced the whole Ecclesiastical organisation of the various 
 kingdoms into one National Church.^ Henceforward the 
 Church existed as a united, central, and national institu- 
 tion, 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 promi- 
 nent members of the Witenagemot, and frequently acted 
 as the chief ministers of the King. They also shared with 
 
 ^ Isque primus erat in archiepiscopis cui omnis Anglorum aecclesia manus 
 dare consentiret. — Bede, Hist. Ecc. iv. 2 ; Kemble, Saxons in England, ii. 
 
 364. [Ed. 1849.] 
 
I.] to the Norman Conquest of England, 1 1 
 
 the Ealdormen in the local judicial administration. The 
 Church thus entered into close combination with the Civil 
 organisation, gradually intertwining itself with all the feel- 
 ings and customs of the people, and acquiring in the process 
 its exceptionally national character. 
 
 During the whole period commonly called the Hep- The Bret- 
 tarchy,^ the land was full of petty kings or princes, some^^^'^'^"^* 
 one of whom, from time to time, o btained a forcible pre- 
 
 dominance over his neighbours.. Bede enumerates seven 
 
 who are said to have enjoyed such a predominance or 
 leadership over nearly the whole island ; and the Saxon 
 Chronicle speaks of Egbert as ' the eighth king who was 
 Bretwalda.' ^ 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 supremacy over all his neigh- 
 bours. The existence of the Bretwaldas would seem to 
 indicate certain earlier attempts at a union of the whole 
 English race, which was ultimately carried out by the West 
 Saxon kings in the 9th and loth centuries.^ 
 
 The three kingdoms of Wessex, Mercia, and Northum- 
 bria at length became predominant. Egbert, King of 
 the West Saxons, not only added to his dominions the 
 dependent kingdoms of Kent and Essex, but compelled the 
 extensive states of Mercia and Northumbria to acknow- 
 ledge his supremacy. Still the Mercians, East Anglians, 
 and Northumbrians retained each their ancient line of 
 
 1 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, therefore, is not accurate, 
 but it is convenient if taken to denote the greater prominence of seven states 
 out of the number. 
 
 2 Bede, Hist. Eccles. ii. 5 ; Chron. Ang.-Sax. ann. 827. Mr. Kemble points 
 out that of six manuscripts in which the passage quoted occurs, only one reads 
 '^r^/walda,' four hoxQ Bryten-walda^ and one Breteji-anweald. 'The true 
 meaning of this word, which is compounded oiwealda, a ruler, and the adjective 
 bryten, is totally unconnected with Bret or Bretwealh, the name of the British 
 aborigines. . . Bryten is derived from breotan, to distribute, . . disperse : it 
 is a common prefix to words denoting wide or general dispersion, and when 
 coupled with ivealda means no more than an extensive, powerful king — a king 
 whose power is widely extended. ' — Saxons in England, ii. 20. 
 
 ^ Freeman, Norm. Conq. i. 28. 
 
1 2 From the Teutonic Conquest of Britain [Ch. 
 
 kings, and neither Egbert nor his five immediate suc- 
 cessors assumed any other title than that of King of the 
 West Saxons. This is the only style used by Alfred in 
 his will. 
 Invasions of The consolidation of the various kingdoms into one was 
 787—1070. ^^astened by the invasions of the Danes, by which 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 famous 
 Sea-kings, these ' Slayers of the North ' ravaged almost 
 every European coast during the 9th and lOth centuries. 
 They were closely akin to the English, and spoke another 
 dialect of the same common Teutonic speech. Their insti- 
 tutions exhibited a striking similarity to those of the 
 English, and even where differing in detail were generally 
 governed by identical principles. The first recorded descent 
 of th e 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 Alfred ^ 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 Alfred and Guthrum (A.D. 
 879), the limits of the Danish occupation southward were 
 defined ' up on the Thames, and then up on the Lea, along 
 the Lea unto its source, then right to Bedford, then up on 
 the Ouse unto 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 district — the Denalagtiy or region where 
 the Danish law was in force — the armies^ as the Saxon 
 
 ^ [Mr. Goldwin Smith, in his Lectures as Regius Professor of Modern 
 History in the University of Oxford, delivered in Easter Term, 1863, spoke of 
 Alfred as standing out, with St. Louis, as one of the perfect, ideal kings, and 
 described his genius as Anglo-Saxon, strictly practical, considering him as the 
 great man of the Anglo-Saxon race. From MS. notes of the Lectures. —Ed.] 
 
 2 Thorpe, Anc. Laws and Inst. ann. 879. 
 
.] to the Norman Conquest of England, 1 3 
 
 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, Edward, 
 Athelstan, and Edmund, succeeded in reducing the Danes 
 to something like real submission, and also in obtaining an 
 acknowledgment of supremacy over the bordering nations 
 of the isle of Britain. At length, in 959, Edgar, 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, the threefold 
 sovereignty of the West Saxons, Mercians, and Northum- 
 brians.^ The English and the Anglo-Danes gradually 
 coalesced, the English language and institutions maintain- 
 ing the ascendancy, though appreciably influenced by con- 
 tact with the foreign element in their midst. 
 
 After the death of Edgar the Peaceable (viz., in 975), 
 the minority and feeble character of Ethelred the Unready 
 provoked fresh attacks from Denmark. These now 
 assumed the form of a regular war of conquest, conducted 
 by the kings of a country which had at length been ad- 
 mitted within the civilising 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 regained 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 descen- 
 dants of the Danish settlers, and had become fused into 
 one nation. We have now to enquire what was the Consti- 
 tution of the English nation from the 7th to the nth 
 
 ^ E. W. Robertson, Hist. Essays, p. 203; Stubbs, Const. Hist. i. 173. 
 
14 
 
 From the Teutonic Conquest of Britain [Ch. 
 
 Constitution 
 of English 
 nation from 
 7th to nth 
 century. 
 
 Appropria- 
 tion of the 
 soil. 
 
 General 
 
 allotment 
 
 probable. 
 
 The nicBgth. 
 
 Private 
 estates of 
 the chiefs. 
 
 Public 
 lands. 
 
 century ; a Constitution which survived the Norman Con- 
 quest, and which in all 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 by 
 each of the invading tribes was divided amongst the colo- 
 nists, we have no positive knowledge. Any statement on 
 this point must therefore necessarily be hypothetical. But 
 there can be little doubt that, as to a large portion of the land 
 of each colony, a principle of allotment was generally adopted 
 based upon the existing divisions of the host into compa- 
 nies, each consisting of a hundred warriors united by the 
 tie of kinship. The allotment of land made to each 
 hundred warriors would be sub-divided, according to the 
 minor divisions of the kindred into mcegths, i.e.y 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 oi 
 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 
 
 1 ' There were two groups of individuals in the Anglo-Saxon community to 
 whirh the word family may be applied. . , The first and larger group, includ- 
 ing the whole body of the kindred, is called in Anglo-Saxon the Aficgtk or 
 McB^burh. . . The second and smaller group, including only the husband, 
 his wife, and children, may be called the household.' Young, Essays in Anglo- 
 Saxon Law. Boston. 1876. On the Mccgburh, see further, Kemble, Saxons 
 in England, i. 234. 
 
I.] to the Norman Conquest of England. 15 
 
 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 commu- Absolute 
 
 nities continued to subsist, and has left its traces in the h7sev«alty 
 
 common lands of townships and manors of the present day, ^°°" became 
 
 1 • 1 • 1 1 i • r ^^ general 
 
 absolute ownership m severalty, which had existed from rule. 
 
 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 Folcland ; and (2) Private, or Bocland. 
 
 (i) Folcland, the land of the folk or people, was the Folcland. 
 common property of the nation,, ' It formed the main 
 source of the State revenues, and could not be alienated 
 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 pub liais oi ih.Q Romans, 
 and its individual holders to the Roman possessores. 
 
 (2) Bocland^ was land held in full ownership, either as Bookland. 
 part of an original allotment, or as having been subse- 
 
 1 Boc/and= land conveyed by book or charter, the usual mode after the 
 introduction of writing. Though all land, on being granted in perpetuity, 
 ceased to be Folcland^ it was not strictly Bocland, unless conveyed in writing. 
 Land thus held in absolute property has been called in different Teutonic 
 dialects, e^el, odal, or alod. Similar to the possessors of Bocland, both in 
 name and with reference to the nature of their possessions, were the Hbellario 
 nomine possidentes and the libellariioi the Lombards and Franks. [So Thorpe's 
 Lappenberg, A.-S. ii. 324 n. But the Lombard libellarius seems tu have been 
 an emphyteuta, and to have got his name from the libellus, or petition, which 
 he presented to the lord. See Baudi di Vesme, Vicende della Propriefcl in 
 Italia, 1836, pp. 103, 172. Contra, Lefort, Location Perpetuelle, 1875, p. 157, 
 but apparently only as applied to church lands. Garsonnet, Hist, des Loca- 
 tions Perpettielles, 1879, P- 262, cites from a Pa via capitulary of 876, hbellario 
 nomine vel enfiteuticario jure, and quotes Muratori for libellarius and emphy- 
 teuta as synonymous. On Udal Tenure in Orkney, cf. Lazu Magazine and 
 Review, No. cclxix., for Aug., 1888, Art. Law and Self-Goverm?tent in Crkney, 
 by A. W. Johnston, and No. cclxxi., for Feb., 1889, Art. 77ie Udallers and 
 the Local Government Bill, Scotland. — Ed.] 
 
1 6 From the Teutonic Cong ice st of Britain [Ch. 
 
 quently severed from the Folkland, with the consent of 
 the nation, and appropriated to individuals in perpetuity, 
 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 certain 
 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, ^okland, on the contrary, was released from all 
 public burdens, except the trinoda necessitaSy or liability of 
 its owners to military service and to a contribution for 
 the repair of fortresses and bridges {fyrd^ burh-bot^ and 
 brycge-bot)^- _ 
 
 Bookland 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 
 deprived of the power of alienation. The King, like any 
 of his subjects, had private estates of Bookland which did 
 not merge in the Crown, and over which he exercised the 
 same powers of disposition as a private individual.^ In 
 
 1 [To the same effect, Digby, Hist. Law of Real Property, 3rd ed., p. 14, 
 and see notes there. — Ed.] From the will of King Alfred (Cod. Diplom. ii. 
 112) it is evident that both he and his grandfather Egbert had the absolute 
 disposal of their bocland. Allen (Royal Prerogative, p. 144) thus sums up the 
 information on the land laws of the Anglo-Saxons contained in this interesting 
 document : ' It appears that Egbert, grandfather of Alfred, had settled his 
 landed property on his male in preference to his female heirs ; that Ethel wulf, 
 father of Alfred, had bequeathed various estates to his younger children, and 
 regulated, in certain contingencies, how they should descend ; that Alfred him- 
 self and two of his brothers had acquired landed property, in addition to the 
 inheritance they received from their father ; that their rights over their estates 
 were settled and adjudged in the courts of law, as if they had been private 
 individuals ; and lastly that Alfred was empowered to make a new settlement 
 of his lands by a decision of the witan in these words, " It is now all thine 
 own ; bequeath it, give it, or sell it to kinsman or stranger, as it pleaseth thee 
 best."' 
 
I.] to the Norman Conquest of England, \ 7 
 
 the course of time much of the Folkland was converted 
 into Bookland. 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 Bookland 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 
 Icenla nd (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 The Folk- 
 fell out of use, and was replaced by the term terra regis^ or comes /^/-m 
 Crown-land. This tendency reached its climax after the regis- 
 Norman Conquest, when the whole land of the kingdom 
 came to be regarded as the demesne land of the king, 
 held of him by a feudal tenure.^ 
 
 The unit of the territorial division was the tiin^ township Territorial 
 or viciis, occupied by a body of alodial owners associated 
 by the tie of local contiguity, and also as representing 
 either the original nicegth community of allottees, or the 
 dependent settlers on the estate of the immigrant chief. 
 Each township had its tun-gemot, or assembly of freemen, 
 and a ttcn-gerefa as its head man or chief executive officer.^ 
 The townships were grouped together into htmdreds, or as The Town- 
 they were called in the Anglian districts, wapentakes. An ^^^P" 
 aggregation of hundreds constituted the shire, and the 
 union of shires made up the later kingdom. 
 
 Thejiundred, or Wapentake, a district answering to the The 
 pagus of Tacitus, probably has its origin in the primitive ^i^"^*"^^- 
 
 ^ For a fuller description of Folkland and Bookland, see Allen, Royal 
 Prerog. 135 et seq. 
 
 ^ * 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, ^// = German, bau).' — Stubbs, Const. Hist. i. 82. Cf. also the Flemish 
 and Frisic hetn aa<i um. 
 
1 8 ^ From the Teutonic Conquest of Britain [Ch. 
 
 ^ttlements, varying in geographical extent, of each hundred 
 ^arriors 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 
 hcerred in the Scandinavian kingdoms.^ In England the 
 names Hundred and Wapentake first appear in the laws 
 of Edgar (a.d. 959-975) in connexion with the police 
 organisation of the kingdom. By this time the term 
 Hundred, originally denoting certain personal relations 
 of the inhabitants of a district, had probably acquired 
 its territorial signification as a subdivision of the shire or 
 
 Its organisa- kingdom to which it belonged. It had its hicndred-gemot, 
 which took cognisance of all matters, criminal and civil, 
 arising within the hundred, and was attended by the thegns 
 of the hundred and by the representative townreve and 
 four men from each township. The chief executive officer 
 was the hundred-man or hundreds- ealdor, who convened 
 the hundred-gemot. 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 Shire. The division into Shires (a word originally signifying 
 
 * 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 6i, 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 hun- 
 dreds 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 division. (See Lappenberg, England under the 
 Anglo-Saxons, by Thorpe, i. 96, 107.) Two counties, Yorkshire and Lincoln- 
 shire, were divided into Trithings or Thirds (which still subsist in Yorkshire 
 under the corrupted name of Ridings), and these were subdivided generally 
 into wapentakes. [In Ireland, the division of Co. Cork into two Ridings, 
 is quite modern, being due to the 4 Geo. IV. c. 93. Cantreds appear to 
 have existed in Cork, /. Hen. II. In Cumberland and Westmoreland, Wards 
 take the place of Hundreds. Sawyer, Teut. Sett, in Sussex, doubts whether 
 the Rape is older than the Norman Conquest. Cf. Skeat, s. v. lathe. — Ed.] 
 
I.] to the Norman Conquest of England, 19 
 
 merely a subdivision or share of any larger whole) is very 
 ancient, but the period at which it arose is uncertain. 
 We have evidence that ia 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 Ina, King 
 of the West Saxons [cir. A.D. 690), provision is made for 
 the case of a plaintiff failing to obtain justice from his 
 scirmaiiy or other judge : if an ealdorman compound a 
 felony it is declared that he shall forfeit his scir ; and the 
 defendant is forbidden secretly to 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.^ 
 
 The government of the shire was administered concur- Organisa- 
 rently by an ealdorman, and the scir-gerefa, or sheriff, officers. 
 The Ealdorman (the princeps of Tacitus and the comes The Ealdor 
 of the Normans) was originally elected in the general "^^"' 
 assembly of 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 
 jroyal house ; but in all cases, down to the Norman Con- 
 quest, 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 arrange- 
 ment did not involve an amalgamation of the separate 
 organisations of each shire. The Sheriff (or as he was The Sherifif. 
 
 ^ On the various origin of the different historical shires or counties, see Pal- 
 grave, Commonwealth, p. ii6; and Stubbs, Const. Hist. i. 109-10, who says : 
 
 'The constitutional machinery of the shire represents either the national 
 organisation 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. ' [The more 
 carefully this statement is considered, the more difficult does it seem to be 
 to avoid the conclusion that we practically know next to nothing about the origin 
 of the Shire.— Ed.] 
 
20 From the Teutonic Conquest of Britain [Ch. 
 
 termed after the Norman Conquest, vice-cofnes — a title ^pt 
 to obscure his independence of the ealdorman) was the 
 special representative of the Regal or central authori^, and 
 as such usually nominated by the King.^ He was judicial 
 president of the scir-gemot, 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 ealdor- 
 
 1 man, the sheriffdom, as a rule, never became hereditary. 
 
 PjThis 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 
 
 j effectually assert the central authority in every shire, and 
 
 \ thus to check the growth of local feudal jurisdictions. 
 
 The Burgh. The burk, or town, was in its origin * simply' a more 
 
 strictly organised form of the township. It was probably 
 
 m a more defensible position ; had a_ditch or mound 
 
 instead of the quickset hedge or " tun " from which the 
 
 township took its name ; and as the " tun " was originally 
 
 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.' ^ 
 
 Its organisa- Other burhs were gradually developed out of the village 
 
 tion. township, or were founded on the Folkland. In these the 
 
 * * It is probftble, on early analogy, that the gerefa was chosen in the folk- 
 moot ; 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. 
 
 2 [The sheriff appears to be ?,\.y\td Prcepositus (and Is so taken by Stephen, Com- 
 metitaries, 1880, iii. p. 284) in the Laws of Edward the Elder, c. ii, where 
 bis duties are thus defined: "Praepositus ad quartam circiter septimanam 
 frequentem populi concionem celebrato : cuique jus dicito : litesque singulas 
 dirimito." On Sheriffs in Scotland, see Alexander Robertson, Laios, Con- 
 s'ttution, and Government of Scotland, 1878, and Law Magazifie ami RevieiUy 
 No. ccxli., for Aug., 1881, art. by Sheriff Lees. On Sheriffs in Ireland, see 
 Law Magazine and Review^ No. ccxlix., for Aug., 1883, art. by W. H. 
 Faloon, Q.C.— Eix] 
 
 3 Stubbs, Const. Hist. i. 92. 
 
I.] to the Norman Conquest of England. 21 
 
 municipal authority was similar to that of the free town- 
 ship. The chief magistrate was the gerefayXn mercantile 
 places ih.Q port-gerefa, in others the wic- or tim-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 lordships, the organisation more 
 nearly resenlbled that of the hundred than that of the 
 simple township. 
 
 Side by side with the town constitution, and to a certain The Guilds, 
 extent influencing its development, was the organisation of 
 the municipal guilds. The ancient municipal guilds (so 
 called from gildan^ to pay or contribute) were voluntary ,; 
 associ ations for ecclesiast ical or secular purposes, analogous 
 jo^ our modern clubs . By^ some the"guilds ha^e been 
 regarded as an inheritance from the Roman municipal 
 constitution ; but an uninterrupted Roman descent can no- 
 where, 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 institu- 
 tion,' formed a leading feature.^ 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 members and the 
 preservation of peace ; and by the laws of Ina and Alfred, The ' frith 
 in case of homicide of or by one of the members, the ^^^ * 
 guild-brethren were to share in the receipt or payment of 
 the wergild? 
 
 1 Lappenberg, England under the Anglo-Saxons, by Thorpe, ii. 350. 
 
 '^ In ihejudicia Civitatis Lujidojiiae, drawn up under King Althelstan («V. 
 930) by the bishops and reeves belonging to London, and confirmed 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 con- 
 viction of thieves, the exacting of compensation, and the carrying out of the 
 dooms which Athelstan and the Witan had enacted at Greatley, Exeter, and 
 Thundersfield. — Thorpe, Anc. Law6 and Inst. ; Select Chart. 65. 
 
22 From the Teutonic Conquest of Britain [Ch. 
 
 The mer- But the form of guild which exercised the most perma- 
 
 chant-guild. ^^^^ ^^^ extensive influence on the town constitution 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, njono- 
 
 polising 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 proceeded during the two centuries 
 
 .following that event. * In the reign of Henry II.,' says 
 
 Bishop Stubbs, * there can be little doubt that the possession 
 
 of a merchant-guild had become the sign and tolceri 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 recognised by Glanvill as identical 
 
 with the communa of the privileged towns, the municipal 
 
 corporation of the later age.' ^ 
 
 The City of The City of London has always occupied an exceptional 
 
 London. position, and though it has never stood to the rest of 
 
 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.' ^ 
 
 Its con- Whilst the constitution of ordinary towns resembled that 
 
 stitution of the hundred, the constitution of London was analogous 
 
 analogous ; . . . i , ^. -, 
 
 to thai of .- iP that of the shire. From time immemorial the City has 
 been divided into wards^ answering to the hundredsjn the 
 shire, each having its own wardmot, answering to the 
 hundred court, and its elected ealdorman. The chief 
 ►al^court — the general assembly of the citizens — was 
 
 1 Const. Hist. i. 418. 
 
 2 Hallam, Midd. Ages, iii. 24 (nth Edit.). According to Roger Hoveden, 
 the citizens of London, on the death of Ethelred II., joined with a portion of 
 the nobility in raising Edmund Ironside to the throne. They concurred, say 
 the Saxon Chronicle and William of Malmsbury, 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 contests with the Crown, 
 and assisted in deposing Longchamp, the chancellor and justiciar of Richard I. 
 The mayor of London was one of the twenty-five barons empowered to main* 
 tain the provisions of the Great Charter. 
 
 the shire. 
 
I.] to the Norman Conquest of England, 2% 
 
 called the Hus-thiiig, whence the modern name Husting, a 
 ternT derivedprobably from the Danes, and signifying a 
 court or assembly in a house as distinguished from one 
 ^eld in the open air. Side by side with the jurisdiction of 
 the several wardmotes, landowners, both secular and eccle- 
 siastical, possessed their exclusive sokens or jurisdictions i 
 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 element within the municipality doubtless 
 added much to its power and influence, until the citizens 
 were strong enough to hold their own as a purely com- 
 mercial community. 
 
 Towards the close of the pre-Norman period the twp_ 
 
 chief officers of the City of London, the representatives of 
 
 the civic unity of the various wards, townships, parishes, 
 and lordships of which it was composed, were the Port-reeve 
 ^nd the Bishop. It is to these two that the charter of William Charter of 
 the Conqueror confirming to London the laws which it had queroMo 
 enjoyed under King Edward is addressed : * William the London. 
 King greets William the bishop and Gosfrith the port-reeve,^ 
 and all the burghers within London, 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 
 Edward'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.' ^ 
 
 ^ *The ytoiAport m. port-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 a 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 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 organisation with administrative machinery which 
 marks the English municipal system from its earliest days. ' — Stubbs, Const. 
 Hist. i. 404, n. 
 
 2 Munim, Gildhallae Lond.^ Lib, Custum. [pp. 25, 247] ; Select Charters, 79. 
 
24 
 
 From the Teutonic Conquest of Britain [Ch. 
 
 Ecclesiasti- 
 cal divisions 
 
 Ranks of 
 the people. 
 
 Slaves. 
 
 Freemen : 
 Eorls and 
 Ceorls. 
 
 The Eorh 
 
 Nobility by 
 birth gives 
 way to 
 nobility by 
 service. 
 
 The original bishoprics werjs conterminous with the 
 ' 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 Jtliejtownship, 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 arch- 
 deaconry, while the whole consolidated Kingdom formed 
 the province of the Metropolitan.^ 
 
 Turning from the divisions of the land to those of the 
 people, we find at the bottom of the social scale the mere 
 slaves {theowas, es7ias\ of whom, under the name of servi^ 
 25,000 are numbered in Domesday Book, or nearly one- 
 eleventh of the registered population. These were of two 
 kinds — (i) 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- 
 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 rendered by 
 gentle and simple, or esquire and yeoman. 
 
 The rank of t\iQ 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 
 
 1 Stubbs, Const. Hist. i. 224-227. [This theory seems to break down at the 
 Metropolitanate, and by 'deanery' must be meant 'Rural Deanery.' — Ed.] 
 
I.] to the Norman Conquest of England. 25 
 
 arose out of the development of the comitatiis, described The Comi- 
 by Tacitus, the band of personal followers of the King or *^^^^' 
 other leader. These followers were the gesithas ( = com- Gesith. 
 panions) ; their leader was the hlaford ( = loafgiver), 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 gesitky or companion, became the t/tegrt 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-t/iegn), bower-thegn 
 ibur-thegn), and horse-thegn or stallere,^ 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 Chamberlain (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- intimate 
 ably) connected with the possession of landed property ; * so connexion 
 
 social status 
 and owner- 
 ship of land. 
 
 ^ [That thegn — servant is denied by Mr. A. G. Little, English Historical 
 Review y No. i6, for Oct., 1889, ' Notes and Documents, Gesiths and Thanes,' 
 p. 724, 71. 7, where he says that ' to derive pegn from \:>enian^ to serve, is to 
 put the cart before the horse,' and refers to Mayhew and Skeat, Diet, of 
 Middle English, s. v. ^enien. He connects it rather with pihart, to grow, so 
 that thegn would mean boy or young man. Still he cites the official ' dish- 
 thegn ' and ' bower-thegn, ' who can hardly have been boys, and he admits 
 that the thegn ' was probably, unlike the gesith, a servant in the royal house- 
 hold.' This seems to bring us back very near the conception of service as 
 inherent in the origin of the Thane. — Ed.] 
 
 2 The Staller {comes staiuli) = ihe Marshal (from O. H. G. marah, horse, 
 and scalh, servant). [Thorpe, n. to Lappenberg, A.-S. ii. 312.] 
 
 2 See Kemble, Saxons in England, i. ch. vii., 'the Noble by Service.' 
 
 * [In Scotland, to all appearance, at least between the nth and 15th 
 centuries, the Thane ranked below the Earl and the Baron. Several Thane - 
 doms are traceable quite late in Scottish history. See E. W. Robertson, 
 Scotland under her Early Kings ; W. F. Skene, Celtic Scotland; Innes, 
 
26 From the Teutonic Conquest of Britain [Ch. 
 
 much so that the possession of a certain quantity of land 
 came to be regarded as a foundation of nobility. The 
 simple freeman who acquired five hides of land entered 
 into the ranks of the thegnhood.^ For the position of 
 ealdorman the possession of at least forty hides was neces- 
 sary. 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 .... qiios inter se secu7idum dignatio- 
 nem partiuntur? 
 Effects of The development of the comitatus^ or thegnhood, had 
 
 fheThegn^- ^^^7 important effects. In the original Teutonic com- 
 hood. munity, the monarchic and aristocratic elements were sub- 
 
 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 voluntary in its 
 
 Book of the Thanes of Cawdor ; G. Burnett, Exchequer Rolls of Scoilandy vols, 
 vi.-xii. ; Davidson, Inverurie and the Earldom of the Garioch ; and Ret. Scot. 
 Abbrev. — Ed.] 
 
 1 [Mr. Little, Eng. Hist. Rev.y No. i6, pp. 726, 728, argues that the 
 passages on which Stubbs, following Maurer, based the doctrine that mere 
 possession of five hides constituted thanehood, do not bear out the con- 
 clusion, and submits that this was ' simply, in the seventh century, the normal, 
 traditional holding of a royal thegn — a member of the upper class of the 
 comitatusJ' This, even if allowed to be the truer view, is not destructive of 
 the statement in the text of the present work, that * possession of a certain 
 quantity of land came to be regarded as a foundation of nobility.* But it 
 would seriously modify the subsequent statement that a 'simple freeman,' 
 acquiring that quantity of land * entered,' clearly ipso facto, * into the ranks of 
 the thegnhood. ' It remains to be seen how far Mr. Little's somewhat destructive 
 criticism will win acceptance. He does not offer another theory in place of 
 that of Maurer : he only urges, with some apparent show of reason, that the 
 texts cited in its support do not sufficiently bear out the inferences which have 
 been drawn from them, and therefore bids us suspend our judgment. There 
 is an admitted doubt as to the date of the passage from the Wergelds, which 
 Kemble assigned to the loth cent., and the first passage, of uncertain date, 
 known as the 'ranks,' connects the five-hide thaneright with a specific duty 
 in the King's hall. This, Mr. Little arguQS, ' can scarcely be twisted into a 
 proof that at a later time the possession of five hides without this duty con- 
 ferred the same rank. ' But it is still true to say, as was said by the author 
 in the margin of the present work, that there was an ' intimate connexion 
 between social status and ownership of land.' — Ed.] 
 
 2 Tacit. Germ. c. xxvi. 
 
I.] to the Norman Conquest of England, 27 
 
 origin, service rapidly grew to be universally compulsory. 
 It soon came to be regarded as a principle that every free- 
 _man, 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 technical language, 
 commend himself ; but if he failed to do so, his kindred were 
 bound to present him to the shire 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 anyone who met him. 
 Having once commended himself to some lord, the freeman 
 was prohibited from exchanging into the service of another 
 lord in another shire without the consent of the ealdorman 
 of the shire which he was desirous of quitting. Thus, * a 
 new order of things,' says Kemble,^ * was consummated, in 
 which the honours and security of service became more 
 anxiously desired than a needy and unsafe 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.' 
 
 In one respect the absorption of Eorldom into Thegn- The Ceorh. 
 hood had a liberalising effect.^ The ceorl^ who could never 
 become an eorl, might become a thegUy and so attain a rank 
 practically equivalent to that of eorl. Thus the caste dis- 
 tinction of birth was broken through. The ceorl who ac- 
 _guired five hides of land (about 600 acres), with a church 
 _and^mansion of his own, acquired also, as we have seen, the 
 
 ^ Saxons in England, i. 184. 
 
 2 [That there was a great extension of the Thanehood after Alfred's time is 
 admitted on all hands. That it was really connected with Alfred's ' sweeping 
 reforms ' is suggested by Mr. Little, Eng. Hist. Rev., ti.s. Its precise nature 
 and causes cannot yet be safely laid down, and its effects were probably 
 mixed. But that there was anything which could fairly be described as an 
 * absorption of Eorldom into Thegnhood,' seems to us, on reconsidering the 
 questions connected with the Thanehood, difficult to admit. The olden 
 prestige of the Earl was no doubt weakened : it was shaken, but not destroyed. 
 Earls and Thanes alike survived the Norman Conquest, after which, indeed, 
 the Earl again got the .upper hand in England. It is to mediaeval Scotland 
 that we have to look for the survival of the Thane, long after he has dis- 
 appeared from England. Cf. Exch. Rolls, Scot., u.s, — Ed.] 
 
28 From the Teutonic Conquest of Britain [Ch. 
 
 right to thegnhood. King Athelstan extended the privi- 
 lege to t he merc haiat-who in his own vessel had made three 
 voyages to foreign parts. This last was a remarkable ex« 
 ception, in favour of commerce, to the general polity of this 
 period, in which the possession 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.^ As there were degrees among the 
 thegns, so among the ceorls there were various grades,, 
 according to the different relations in which they stood 
 towards the hlafords, under whom they had placed them- 
 selves. Some had 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 of liberi homhies^ socmanniy villa7ii^ bordarii^ cottariiy 
 and cotsetiy indicating doubtless some peculiarity of service 
 or tenure. They are always distinguished from the servi 
 or serfs of the demesne. Xh^^socjrn^n 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 
 Jree socage tenants, or English yeomanry, whosejndepen- 
 dence has stamped with peculiar features both our consti- 
 tution and our national character.' ^ 
 Ealdormen. Above the thegns in dignity were the Ealdormen. In 
 ^ the primitive patriarchal constitution the chief^thority in 
 
 * Freeman, Norman Conquest, i. 95 — 7. [Chapter iv. in Mr. J. F. 
 Morgan's England under the Norman Occupation^ 1858, entitled The Hall, 
 the Church and the Peasantry, gives a graphic picture, from Domesday and 
 other Records, of the condition of both thanes and ceorls at the time of the 
 Norman Conquest. — Ed.] 
 
 2 Hallam, Midd. Ages, ii. [274]. 
 
I.] to the N oilman Conquest of England. 29 
 
 ^ach t ribe seems to have been naturally ex ercised, 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 signi- 
 fication. From the time of Egbert, it denoted a magis- 
 _trate or viceroy appointed by the King and his Witan, 
 more especially the governor of a shire or large district. 
 Tinder 1-hp r)^nii'7h T^iticrq in the nth century, the_titl£_iif 
 Ealdorman was generally supplanted by that of Eorl or Earl, 
 as the official title of the governor of a shire or province.^ 
 
 By this time the word eorl^ in its original signification 
 of gentle birth, had, as we have seen, itself been supplanted 
 by thegn. From about the period of the Norman Con- 
 quest the title of Ealdorman underwent a further restriction, 
 and has survived to our days only as the designation of 
 city and borough magistrates.^ • ^ - ^ ^^^^ — - 
 
 ~Ai^e result alike of their almost entire monopoly of The Clergy, 
 learning and of the veneration, not unmixed with supersti- 
 tion, which the sacerdotal character inspired in the laity, 
 Jihe^ler gv, as a class, held a very high political and social 
 status.^ -The po orest pr iest ranked as a mass-thegn ; the 
 
 1 The title of eorl occurs early in the laws of the Kentish kings (Laws of 
 Ethelbert, xiii., xiv.), and was probably of Jutish origin, but its use as a sub- 
 stitute for ealdorman was borrowed from the Danish yar/. 
 
 [In Scotland, The title of Earl was no doubt of Scandinavian origin, and was 
 accepted as the equivalent of the Celtic maornio7' (or mormaer, as Skene writes 
 it). The Latin form was in each case Comes. The Seven Earls appear for 
 •several centuries to have been a sort of Constitutional body in the Scoto-Pictish 
 kingdom. See E. W. Robertson, Scotland under her Early KUigs, and Skene, 
 Celtic Scotland. — Ed.] 
 
 ' [It has also been, somewhat grotesquely, but without any apparent sense 
 of the ludicrous, applied to certain members of the new County Councils, of 
 ■which some writers, presumably of an antiquarian turn of mind, have spoken 
 as though they were bond fide revivals of the old shire-moot. Had this 
 lieen really intended, in theory at least, the chairman would have ,been the 
 "Alderman,' and the position ought in that case, perhaps, to have been filled by 
 the County officer now called Lord Lieutenant. But we do not know what 
 title could have been found, on Anglo-Saxon principles, for the Deputy- 
 Chairman, or where an authority would have been found for his salary. How 
 far it is possible in these days to restore features of the Anglo-Saxon Polity, 
 and how far, if possible, it would be desirable, are questions which need not 
 liere be entered upon. — Ed.] 
 
 2 Lappenberg (England under the Anglo-Saxons, by Thorpe,^ ii. p. 322) 
 suggests, as a further explanation of the high position of the Christian priest- 
 
From the Teutonic Conquest of Britain [Ch. 
 
 The King: 
 
 Limited 
 nature of 
 English 
 Kingship. 
 
 !^ ishop was on a par with the Ealdorman and presided with 
 him m the shire- moot, and the Archbishop was never 
 valued, in the eye of the law, at^less than an Atheling, or 
 ^ember of the King's family. Whilst all laymen, even of 
 the highest rank, were bound to find a number of compur- 
 gators in addition to their own oath, in order to clear them- 
 selves 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. 
 
 At the head of the nation was its elected chief and repre- 
 sentative, the Cyning, or King.^ At the period of which 
 we are now treating, the English kingship was in a transi- 
 tion stage between the old Teutonic type and the later 
 mediaeval type, into which it developed in the reign of 
 Henry II. The people were still the source of power, and 
 the King was their minister, not their master. The Royal 
 power was strictly limited by that of the Witan or National 
 ^Council, which, though not a representative assembly in 
 the modern acceptation of the word, stood in relation to the 
 King as the representative of the people. All the laws of 
 
 hood, the account given by Tacitus of the vast influence in secular affairs 
 possessed by the Pagan German priesthood, in whom exchisively 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.' 
 
 1 The meaning of the word cyning or king^ has been explained [by some 
 writers] as 'child of the race,' from cyn = x^zt. or kin, and ing the well- 
 known patronymic. (Allen, Royal Prerog. p. 176 ; Freeman, Norm. Conq. i. 
 82). In the Rigsmal, where 'Kon ' is the son of ' Jarl,' the historical develop- 
 ment of the King from the Earl seems to be hinted at. Max Miiller (Lectures 
 on the Science of Language, ii. 282, 284), decides that ' the old Norse kour 
 and komingr, the old High German chuninc^ and the Anglo-Saxon cyning, 
 were common Aryan words, not formed out of German materials, and therefore 
 not to be explained as regular German derivatives. ... It corresponds with 
 the Sanscrit ganaka. ... It simply meant father of a family.' 'But,' as 
 observed by Bishop Stubbs (Const. Hist. i. 140), * the Anglo-Saxons probably 
 connected the cyning with the cyn more closely than scientific etymology would 
 permit,' [though, as Max Miiller shews, it is not * child of the race.' — Ed.] 
 
I.] to the Norman Conquest of England, 3 1 
 
 the kings express the assent of this council, and there are 
 even instances of Royal grants of public land made without 
 its concurrence, being revoked. With the extension of the Gradual _ 
 national territory and the growth of the thegnhood, the Royal^power 
 personal dignity and power of Royalty gradually but steadily and dignity. 
 increased. The King became the personal lord as well as 
 t he chief and representative of his people. From the time Assumption 
 of Athelstan the kings began to assume Imperial titles, °itie^^^^"^ 
 with which the extensive European connections of that 
 sovereign had doubtless rendered them familiar.^ These 
 titles were probably not mere grandiloquent sounds, but 
 were intended to proclaim the Imperial character of the 
 sway which the King of the English asserted over the inha- 
 bitants of the whole island, and his independence of any 
 external potentate.^ In his Imperial character, as overlord, 
 the King called himself rex^ hnperator^ casere, basileiis^ 
 totius Britanniae or totms Albionis ; but in his Regal 
 character he is still King of his people, not lord of the soil 
 — rex A nglorinn^ not rex A ngliae? The_prerogatives and 
 immunities of the King were extensive. Like every other Royal 
 individual, he had originally a wer-gild, or fixed price for aM mv ^^^^ 
 his life ; but Alfred made plotting against the King's life munities. 
 ' death- worthy.' He_was entitled to maintenance for him- 
 self and retinue in public progresses ; to all treasure-trove, 
 wrecks, tolls, the profits of markets, mines, and salt-works, 
 and to the forfeited possessions of outlaws. A witey or fine, 
 was also payable to him, on every breach of the law, in 
 
 ^ Five of Athelstan's sisters were married to foreigners : (i) Eadgifu, to 
 Charles the Simple, the titular Carolingian King of the West Franks ; (2) 
 Eadhild, to Hugh the Great, founder of the house of Capet ; (3) Eadgyth, to 
 the Emperor Otho I. ; (4) Eadgifu, to Louis, King of Aries ; and (5) ^Ifgifu, 
 to the head of the house of Montmorency. [There are acknowledged doubts 
 among genealogists as to the names of the parties, and as to the real facts of 
 some of these marriages. — Ed.] 
 
 * [This may be partly true, but the titles of Imperial import used in charters 
 of the later West Saxon Kings have very much the ring of the clerkly style of a 
 Chancery following Roman and Byzantine models. They would, of course, be 
 at once explained, if they could be proved to be an inheritance from the Roman 
 dominion in Britain. — Ed.] 
 
 2 On the Imperial character of the early English kings, see Palgrave, Eng. 
 Commonwealth pp. 627, cccxlii-cccxliv. ; and Freeman, Norman Conq. i. 148. 
 
^'^t^"' 
 
 From the Teutonic Conquest of Britain [Cn. 
 
 addition to the compensation {b&t) due to the person injured. 
 'Jhe breach of the King^/jr^^^ peace, and the violation 
 - 'J of his muiid} or special security granted to any one, were 
 severely punished. He alone had sac, or jurisdiction, oyer 
 persons of the highest rank. Together with the duty of 
 executing justice in the last resort he possessed the pre- 
 ys^*Y rogative of mercy. He was commander-in-chief of the 
 l(V*^ national host {fyrd), and might accept of money composi- 
 tions in lieu of personal service. With regard to certain 
 classes of offences he was even clothed with an arbitrary 
 jurisdiction, and might eitjierslay,_fine, imprison, or banish 
 the culprits, at his own pleasure. 
 The Queen. The consort of the king, in accordance with the high 
 respect in which women were held by the Germans, seems 
 to have occupied a very exalted position. She was styled 
 emphatically ' the wife ' {cwen) and lady {Jilcefdige). Her 
 privileges and possessions were probably considerable, 
 although we have but few specific details concerning them. 
 The crimes of Edburga, who poisoned her husband King 
 Brihtric, caused the West Saxons, for a considerable period, 
 to withhold from the King's wife the name and authority 
 of queen. In 856 Ethelwulf gave deep offence to his 
 people by causing his second wife, Judith, to be crowned ; 
 but from the date of Edgar's second marriage with Elfrida, 
 in 965, the rank of queen appears to have been restored. 
 Emma, wife and Queen of Ethelred H., seems to have held 
 the city of Exeter as her peculiar property, and to have 
 governed it by her own officers. In Mercia and East- 
 Anglia the queen-consort was entitled to the payment of 
 an extra tenth, called aurum reginae {gersuma), or queen- 
 gold, on every fine or oblation of more than ten marks paid 
 to the king. This ancient due was claimed so late as the 
 time of Charles the First, by^gueen Henrietta Mariai^ 
 
 ^ The original signification of * mund ' is hand. It specially denoted the 
 power of the head of the family over his wifc, children, and slaves, in which 
 sense it may be compared with the similar use of viamts in the ancient legal 
 phraseology of the Romans. [Stratmann, Diet. O. Eng. Lang.,2^ded. 1878, 
 S.V., gives the meanings, mound, palm, protection. — Ed.] 
 • * Lappenberg, A.-S. ii. 310, 311. On 'Queen' and ' Lady,' see Freeman, 
 
I.] to the Norman Conquest of England. 33 
 
 The sons and brothers of the King were distinguished The 
 by the title of Athelings. The word Atheling, hke Eorl, ^thelings. 
 originally denoted noble birth simply ; but, as the Royal 
 House of Wessex rose to pre-eminence, and the other 
 Royal houses and the nobles generally were thereby 
 reduced to «. relatively lower grade, it became restricted 
 to the near kindred of the national King. The more 
 remote members of the Royal house fell into the ranks 
 of the ordinary nobility without any distinctive appella- 
 tion, on the same principle as [that by which] the descend- 
 ant of an English nobleman at the present day, if not heir 
 to the ancestral title, bears, in the third generation, no 
 external sign of his noble relationship. The Athelings 
 ranked above the rest of the nobility ; the penalty for a 
 violation of their rights being generally fixed at one-half 
 of that payable for a similar offence against the King. 
 
 The Supreme Council of the nation, the representative of The Witena- 
 the Teutonic national assembly described by Tacitus, and su^r^emr 
 the progenitor of our own Parliament, was the Witenagemot, Council of 
 or Meeting of the Wise. 
 
 Concerning the constitution of this assembly, there exists its constitu- 
 considerable difference of opinion. It is admitted that in *^°"' 
 the local gemots every freeman had a right to attend. In 
 the gemot of his own mark or township — whose modern 
 representative is the parish vestry — every Teutonic freeman 
 was entitled to a voice. So every freeman, whether eorl or 
 ceorl, had a voice in the folkmoot of the shire, the shire- 
 moot or county court of later times. But here the 
 divergence makes itself manifest. According to one view ^ 
 every freeman had also the right to attend the National 
 Assembly, although this right had practically gone out of 
 use at an early period. The Witenagemot was * demo- 
 cratic in ancient theory, aristocratic in ordinary practice,' 
 
 Norm. Conq. iv. 768; Appendix X. [Stratmann, O. E. Did., shnply explains 
 gcBrsume QS> treasure. Morgan, Eng. under Norm., p, 47, cites Little Domesday, 
 353, to shew that wherever the return for land was in gold or silver, it was 
 called ^-^rjz^w. Th& gersuma is also familiar in mediaeval charters of lands. — 
 Ed.] * Freeman, Norm. Conq. i. 107. 
 
 C.H. D 
 
34 From the Teutonic Conquest of Britain [Ch. 
 
 a view which, to a certain .extent, is supported by 
 the high authority of Kemble.^ According to another 
 view 2 the central assembly was never formed on the model 
 of the lower courts as the folkmoot of the whole nation, 
 the ordinary freemen never rising higher than their respec- 
 tive shiremoots ; but yet, constructively, the Witenagemot 
 represented the whole people, whose rights, as against. the 
 King, were all vested in this assembly. 
 
 Whatever may have been its theoretical constitution, 
 there is no doubt that practically it was an aristocratic 
 body. Its members were the King, the Ealdormen, or 
 governors of shires, the king's thegns, the Bishops, Abbats, 
 and generally the principes and sapientes of the kingdom. 
 Sapientes = witan = wise men, was the common title of 
 those who attended it. The lesser thegns, if entitled to be 
 present, did not, probably, attend in any numbers, so that 
 the assembly can never have been very large. * The largest 
 amount of signatures,' says Kemble, 'which I have yet 
 observed is io6, but numbers varying from 90 to 100 are 
 not uncommon, especially after the consolidation of the 
 monarchy. In earlier times, and smaller kingdoms, the 
 numbers must have been much less. . . . Other meetings, 
 which were rather in the nature of conventions, and were 
 held in the presence of armies, may have been much more 
 numerous and tumultuary, — much more like the ancient 
 armed folkmoot on the famous day which put an end 
 to the Merwingian dynasty among the Franks. Such, 
 perhaps, was the gemot which, after Eddmund Irensida's 
 
 1 Kemble (Saxons, ii. 239, 240), after quoting from charters expressions 
 which would seem to imply the presence and consent of the mass of the people 
 in the national assembly, remarks : * Whether expressions of this kind were 
 intended to denote the actual presence of the people on the spot ; or whether 
 populus is used in a strict and technical sense — that sense which is confined to 
 those who enjoy the full franchise, those who form part of the iroKirevixa — or 
 finally, whether the assembly of the witan making laws is considered to repre- 
 sent in our modern form an assembly of the whole people, it is clear that the 
 tower of self-government is recognized in the latter.'' 
 
 2 Stubbs, vSelect Chart., Introductory Sketch, 10, 11 ; and Const. Hist. i. 
 119— 127. 
 
I.] to the Norman Conquest of England. 35 
 
 death, elected Cnut sole king of England, or that in which 
 Earl Godwine and his family were outlawed.' ^ 
 
 Although the Witenagemot was not a Representative 
 body in the modern sense, it was unquestionably looked 
 upon as representing the whole people and consequently 
 the national will.^ The ancient principle of representa- 
 tion, after a period of obscuration, was restored in another 
 shape by De Montfort and Edward L, in the 13th century. 
 
 The powers of the Witenagemot were most extensive, Its powers. 
 greater even than those of the modern Parliament. 
 
 (i) It had the power of deposing the King for mis- ^'he'Ki'ng. 
 government.^ So great a step would obviously only be 
 taken at rare intervals. In Northumbria, indeed, the de- 
 position of Kings, with more or less of violence and 
 bloodshed, is extraordinarily frequent ; but two only, 
 Ethelvvald (probably) in 765, and Alcred (certainly) in 
 774, can be said to have been regularly deposed by the 
 Witenagemot.* In the Royal line of the West Saxons, 
 which grew into the Royal line of the English, there were 
 altogether three instances of deposition by the Witan 
 before the Norman Conquest. In 755, Sigebert of Wessex 
 was deposed by the Witan, and Cynewulf, his kinsman, 
 elected in his stead." Ethelred 11. was in like manner 
 practically deposed in 1013, and again restored in 1014;^ 
 
 * Kemble, Saxons in England, ii. 200, 201, n. 
 
 * In a charter of Athelstan, in 931, the act is said to have been confirmed 
 * tota plebis generalitate ovante '" ; and the act of a similar meeting at Win- 
 chester in 934, which was attended by the King, four Welsh princes, two 
 archbishops, seventeen bishops, four abbots, twelve dukes, and fifty-two thegns, 
 making a total of ninety-two persons, is described as being executed *tota 
 populi generalitate.' — Kemble, Sax., ii. 199. [Cf. Cod. Dip.^ Nos. 1103, 
 364.— Ed.] 
 
 ^ Kenable, Saxons, ii. 219. 
 
 ^ Alcred, * consilio et consensu suorum omnium, regiae familiae ac principum 
 destitutus socictate, exilio imperii mutavit majestatem.' Sim. Dun. ann. 774. 
 Of fifteen Kings of Northumbria in the 8th century, thirteen ended their reigns 
 by extraordinary means. See the list in Stubbs, Const. Hist. i. 137. 
 
 '" Chron, Angl.-Sax. ann. 755 ; Flor. Wigorn. ann. 755; and Kemble, Saxons, 
 ii. 219. 
 
 " Flor. Wig. ann. 1013, 1014 ; Chron. Angl.-Sax. 1014. The ealdormen of 
 Wessex and all the thegns of the West came to Swend at Bath and submitted 
 to him, giving hostages, ' Putting the language of the different accounts together, ' 
 says Freeman (Norm. Conq. i. 396), ' there can be little doubt that this was. 
 
36 From the Teutonic Conquest of Britat7i [Cn. 
 
 and in 1037 Harthacnut (who had reigned as King of the 
 West Saxons while his brother Harold reigned to the north 
 of the Thames, probably with a supremacy over the whole 
 kingdom) was deposed in Wessex and Harold chosen King 
 over all England.^ Since the Norman Conquest, the 
 deposing power has been three times exercised by the 
 National Parliament, in the cases of Edward H. in 1327, 
 Richard H. in 1399, and James II. in 1688.2 
 Election of (2) The Witenagemot had the power of electing the 
 King. All the old Teutonic Kingdoms were elective ; but 
 in every kingdom there was a Royal family, out of which 
 the Witan had the right to elect the most competent mem- 
 / ber to discharge the functions of king. The eldest son of 
 
 the last king, if of full age and not manifestly incompetent, 
 was usually chosen to succeed his father. But at a period 
 when the personal character and military prowess of the 
 King were of the utmost importance, minorities were too 
 dangerous to be endured. Thus Ethelred I., in 866, was 
 chosen in preference to the issue of his elder brother ; and 
 at his own death in 871, leaving only young children, was 
 himself succeeded by his younger brother Alfred. King 
 Athelstan, again, though reputed illegitimate, was preferred 
 in 925 to the younger but legitimate sons of Edward the 
 Elder.'^ In 946, Edwy, son of Edmund, was passed by 
 in favour of his uncle Edred ; but on Edred's death in 
 955 was elected to the exclusion of that king's issue. In 
 1042, Edward the Confessor was chosen in preference to 
 the absent son of his elder brother, Edmund Ironside. 
 
 or professed to be, a formal act of the Witan of Wessex, deposing Ethelred 
 and raising Swend to the throne.' 
 
 1 Chron. A. Sax. ann. 1037 (Earle, p. 166). 
 
 ' Infra, Chap. vi. Henry VI. was not, strictly speaking, deposed by Par- 
 liament. When Richard, Duke of York, claimed the throne, a parliamentary 
 compromise was come to between them : and Henry, who was looked upon by 
 the Yorkists as having broken this compromise, was ultimately set aside by a 
 purely partisan assembly. Charles I. was never deposed, but tried and exe- 
 cuted being king, [for which, and for the deposing power, cf. Freeman, Norm. 
 Conq. i. 114— 115.] 
 
 3 Illegitimacy, however, says Kemble, * was not considered a valid ground of 
 objection among the Anglo-Saxons, if the personal qualities of the prince were 
 such as to recommend him.'— Saxons in England, ii. 37, n. 
 
I.J to the Norman Conquest of England. 37 
 
 Finally, in 1066, the whole Royal house was passed by, and / >. T ^ 
 
 EarlJ ^rold, ^^^ mncf ^V>1^ general and statesman of his 
 time, was elected Kin p;-. T he race of Cerdic had once be- 
 fore been passed by, when, in 10 17, Cnut was chosen King ; ^^^ ^ ^ ^ ,, _ 
 but this election, though good^in form, was made under ^/i^^^,_^. 
 duress. A certain preference seems to have been given to \slj^ ^>pOb>^ 
 the issue born after the accession of the father to the throne ^ 
 
 — \\\.^ porphyrogeniti^ sons born in the purple; and a certain 
 preference was also acquired by the recommendation of the 
 last king : thus Edgar recommended his son Edward to 
 the Witan, and Edward the Confessor recommended Earl 
 Harold.^ But on every fresh accession * the great compact • 
 
 between the king and the people was literally, as well as 
 symbolically, renewed, and the technical expression for 
 ascending the throne is, being "gecoren and ahafen t6 
 cyninge," elected and raised to be King ; where the ahafen 
 refers to the old Teutonic custom of what we still at elec- 
 tion times call chairing the successful candidate ; and the 
 gecoren denotes the positive and foregone conclusion of a 
 real election.' ^ 
 
 (3) The Witenagemot had a direct share in every act of The Witan 
 government. In conjunction with the King, the Witan fn eveo^^act 
 enacted laws and levied taxes for the public service ; made of govem- 
 alliances and treaties of peace ; raised land and sea forces 
 when occasion demanded ; made grants of folkland ; ap- 
 pointed and deposed the bishops, ealdormen of shires, and 
 other great officers of Church and State ; adjudged the 
 lands of offenders and intestates dying without heirs to be 
 forfeit to the king; and authorised the enforcement of 
 Ecclesiastical decrees. Lastly, the Witan acted from time 
 to time as a Supreme Court of Justice, both in civil and 
 criminal causes.^ 
 
 * See Freeman, Norm. Conq. i. Ii8. 
 2 Kemble, Saxons in England, ii. 215. 
 
 ' See Kemble, Saxons in England, ii. 204 — 240, where numerous examples Kemble's 
 will be found of the exercise by the Witan of all the powers enumerated in the Canons 
 text. These powers were grouped by him into the following twelve canons : on the 
 i. ' First, and in general, they possessed a consultative voice, and right to powers of 
 consider erery public act, which could be authorised by the King. the Witan. 
 
38 
 
 From the Teutonic Conquest of Britain [Ch. 
 
 These 
 extensive 
 powers not 
 invariably 
 exerted : 
 
 except m 
 legislation 
 and taxa- 
 tion. ^ 
 
 Judicial 
 system. 
 
 But although the powers of the Witan were so extensive^ 
 the active exercise of them varied greatly with the personal 
 character and influence of each occupant of the throne. 
 Strong kings, like_Alfred and Athelstan, were able, by the 
 legitimate exercise of persoj;ial influence, to lead the Wi^n 
 in whatever direction they pleased, and thus to attain the 
 practical enjoyment of supreme power. Towards the close 
 of the pre-Norman period, many of the powers which had 
 been originally shared by the King and the Witan, were in 
 fact exercised by the King alone ; but in the two cardinal 
 matters of legislation and the imposition of extraordinary 
 taxation, the right of the Witan to give counsel and consent 
 was at all times recognised. 
 
 The great original principle of the English Judicial sys- 
 tem was that of trial in local courts popularly constituted, 
 or as it was termed in later times, trial per pais, in the pre- 
 sence of the country, as opposed to a distant and unknown 
 tribunal. This was at once an evidence of freedom and 
 the surest guarantee for its permanence. But before de- 
 scribing the different local courts, it is necessary to notice, 
 shortly, the principle of pledges, by which provision, was 
 madejthat every man should be either personalLy_lorth^ 
 
 ii. The Witan deliberated upon the making of new laws which were to be 
 
 added to the existing folcriht, and which were then promulgated by 
 
 their own and the King's authority, 
 iii. The Witan had the power of making alliances and treaties of peace, 
 
 and of settling their terms, 
 iv. The Witan had the power of electing the King. 
 V. The Witan had the power to depose the King, if his government was 
 
 not conducted for the benefit of his people, 
 vi. The King and the Witan had power to appoint to vacant sees. 
 vii. They had also power to regulate ecclesiastical matters, appoint feasts 
 
 and festivals, and decide upon the levy and expenditure of ecclesias- 
 tical revenue. 
 viii. The King and the Witan had power to levy taxes for the public service. 
 ix. The King and his Witan had power to raise land and sea forces, when 
 
 occasion demanded. 
 X. The Witan possessed the power of recommending, assenting to, and 
 
 guaranteeing grants of lands, and of permitting the conversion of 
 
 folcland into bocland, and vice versa. 
 xi. The Witan possessed the power of adjudging the lands of offenders 
 
 and. intestates to be forfeit to the King. 
 xii. Lastly, the Witan acted as a Supreme Court of Justice, both in civil 
 
 and criminal causes.' 
 
i.j to the Norman Conquest of England. 39 
 
 coming, or have some representative bound to answer for 
 ^im, in every case of litigation. 
 
 A collective responsibility for producing an offender The Frith- 
 appears origmally to have lam upon the mcegth or commu- j^rank- 
 nity of the kindred ; ^ it then devolved upon the voluntary P^^'^g'^- 
 associations called guilds ; and later on ^ the guild was 
 superseded by the local responsibility of Xh^^Jiihing, the 
 exact nature of which is doubtful, but which seems to 
 have been a personal and territorial subdivision of the 
 hundred practically identical with the township. Even- 
 tually, though probably not much earlier than the Nor- 
 man Conquest, for the local tithing was substituted the 
 personal collective Frithborh, or Frankpledge. Every free- 
 man, not being a hlaford, was bound to be enrolled in a 
 frith -borh, or tenmannetale as it was called in the North ; 
 that is, an association of ten men who formed a perpetual 
 collective bail for the appearance of any one of their 
 number when required to answer in a court of law. Each 
 association had its head-man, the borhs-ealdor^ or frith- borge- 
 heady who was also called the tithing-man, as the body of 
 ten was also called the tithing. If an accused member 
 appeared and was condemned, he had to make reparation 
 by his own property or by personal punishment ; but if he 
 fled from justice, the other members of the tithing, in de- 
 fault of exculpating themselves from all share in his crime 
 or escape, were pecuniarily liable for the penalty. 
 
 Side by side with the collective responsibility of the Responsi- 
 local community or of the personal association, was the ffiZ^^d for 
 individual responsibility of the hlaford for his men. By a his depend- 
 law of Athelstan, every landless man was to have a lord 
 to answer for his appearance ; and by an ordinance of 
 King Edgar it was enacted : ' Let every man so order 
 that he have a " borh " [surety] ; and let the " borh " then 
 bring and hold him to every justice ; and if any one then 
 
 1 Schmid notes, however (Ges. d. A.- Sachs.), that the wife did not enter 
 her husband's maegth on marriage, but remained in her own, and her kindred 
 alone made compensation. 
 
40 
 
 From the Teutonic Conquest of Britain [Ch. 
 
 Courts of the 
 Hundred 
 and the 
 Shire. 
 
 The Hun- 
 dred-moot. 
 
 ^ 
 
 Private 
 jurisdictions. 
 
 do wrong and run away, let the V borh " bear that which he 
 ought to bear. But if it be a thief, and if he can get hold 
 of him within twelve months, let him deliver him up to 
 justice, and let be rendered unto him what he before had 
 paid.'i 
 
 The two principal local courts were those of the hundred 
 and the shire. The Hundred court was held once a month, 
 under the presidency of the hundred-man^ or hundreds- 
 ealdor.^ The judges of the court were originally the whole 
 body of freeholders within the hundred ; but, probably 
 from motives of convenience, it soon became the custom to 
 delegate the judicial powers of the whole body of suitors 
 to a representative committee, generally twelve or some 
 multiple of twelve in number, and either chosen for the 
 occasion or permanently appointed. The Court of the 
 Hundred exercised jurisdiction both (^ivil and criminal, 
 voluntary and contentious ; and litigants were bound to 
 seek justice in this court before applying to a higher 
 tribunal. As the King was entitled to a wite^ or fine, for 
 every offence, his reeve was accustomed to attend the court 
 twice in each 3^ar. On the institution of the frithborh or 
 frankpledge, the hundred court, on the two yearly occasions 
 when it was attended by the reeve, undertook the duty of 
 seeing that every man was regularly enrolled in his tithing, 
 a practice which continued long after the Norman Con- 
 quest as the Sheriff's Tourn, or Leet, and View of Frank- 
 pledge. 
 
 From an early period certain districts within the hundred 
 were detached from its jurisdiction and subjected to the 
 socn of the Church or of the secular hlafords to whom 
 they belonged. Such districts formed "^x'w^X.^ franchises or 
 liberties^ and the name ^ sithesocna* by which they were 
 sometimes denoted, points to their origin in grants made 
 
 Edgar's Ordinance of the Hundred, cap. 6. On the origin and nature of 
 the Tithing and the Frithborh or Frankpledge — the subject of a great liter a- 
 ture— see Stubbs, Sel. Chart. 68, and Const. Hist. i. 86—88. 
 
 Supra, p. 1 8. 
 
I.] to the Norman Conquest of England. 41 
 
 by the King to his sith or gesith, and at a period before 
 the title of gesith had been supplanted by that of thegn. 
 The hlaford possessing a private soken over his lordship, 
 or manor as it was subsequently termed, was wont to dis- 
 pense justice in the hall of his mansion, whence his court 
 was called a hall-mote, the progenitor of the feudal court- 
 baron, which is not even now extinct. Sometimes the 
 jurisdiction of a whole hundred, or of several hundreds, 
 was granted to churches or private individuals. In this 
 way the organisation of the hundred was considerably 
 weakened, and the administration of justice became to a 
 large extent not national or royal, but territorial and 
 feudal. 
 
 The Scir-gemot^ or, as it was called after the Norman The Shire- 
 Conquest, the County Court, was not only the court of the "™°°^" 
 shire, but also the Folc-gemot, the general assembly of 
 the folk of the shire, a name which points to the original^ 
 independence of the population of each shire.^ The shires- 
 moot was convened by the sheriff twice in the year. It 
 ^was attended by the Ealdorman, the Bishop, and all other 
 public officers, by all lords of lands, and by the repre- 
 sentative reeve and four men and the parish priest from 
 each township. These, collectively, formed the judges of 
 the court ; but as in the hundred, so in the shire, the twelve 
 senior thegns acted as a body of councillors or assessors, 
 and declared the report of the shire. The jurisdiction of 
 the shiremoot extended to every kind of suit, except such 
 as concerned a high officer of state, or a king's thegn, which 
 
 * * If the shire be the ancient under-kingdom, or the district whose adminis- 
 trative system is created in imitation of that of the under-kingdom, the shire- 
 moot is the folkmoot in a double sense, not merely the popular court of the 
 district, but the chief council of the ancient nation who possessed that district 
 in independence, the witenagemot of the pre-heptarchic kingdom. Such a 
 theory would imply the much greater preponderance of popular liberties in the 
 earlier system, for the shiremoot is a representative assembly, which the his- 
 torical witenagemot is not ; and this is indeed natural, for the smaller the size 
 of the districts and the more nearly equal the condition of the landowners or 
 sharers in the common land, the more easy it would be to assemble the nation, 
 and so much the less danger of the supreme authority falling into the hands of 
 the king and the magistrates without reference to the national voice. But this 
 can only be matter of conjecture.' — Stubbs, Const. Hist. i. Ii6. 
 
42 
 
 From the Teutonic Conquest of Britain [Ch 
 
 Procedure. 
 
 Facts, how 
 decided. 
 
 Compurga- 
 tion. 
 
 were reserved for the King's in\mediate cognisance. But 
 the shiremoot could not be resorted to until justice had 
 first been sought and denied in the court of the hundred ; 
 and on the same principle no appeals could be carried to 
 the King, unless the shiremoot had previously failed to do 
 justice. The court of the shire, though it gradually lost 
 much of its importance after the Norman Conquest, espe- 
 cially after the institution of the justices itinerant, long 
 continued to exercise an extensive civil jurisdiction in 
 small causes, and remained the general assembly of all the 
 freeholders of the shire for county purposes.^ As an in- 
 strument in limiting the power of the feudal aristocracy, it 
 * contributed in no small degree to fix the liberties of 
 England upon a broad and popular basis.' ^ 
 
 Nearly all the work of judicature consisted in the decla- 
 ration of the law applicable to each case, as distinguished 
 from the finding of the facts. The law was declared by 
 the presiding magistrates — the ealdorman, or sheriff, and 
 the bishop, — and the select body of assessors. ^\v^ facts 
 (except in a certain class of civil causes to be presently 
 noticed) were decided either by compurgation or by 
 ordeal. 
 
 I. The accused might clear himself by his own oath 
 strengthened by the oaths of certain compurgators, usually 
 twelve in number, and either his relatives or immediate 
 neighbours, who testified to the trustworthiness of the 
 person on whose behalf they came forward. The com- 
 purgators were in reality ' witnesses to character.' ^ But 
 the oaths of different men varied in legal value and credit 
 according to the rank and property of the swearer. The 
 
 ^ [This general participation of the Freeholders in the County Court of post- 
 Norman times down to t. Hen. III. has of late been denied by Mr. F. W. 
 Maitland and Mr. J. H. Round, in Eng. Hist. Rev. 1889, but, as far as the 
 present Editor can judge, on grounds which are still mainly conjectural. See 
 post, ch. vii. — Ed.] 
 
 ' Hallam, Midd. Ages, ii. [277]. 
 
 3 The system of Compurgation was common to all the Teutonic nations, but 
 the number of compurgators required varied in the different nations. 
 
I.] to the Norman Conquest of England. 43 
 
 oath of one ealdorman counterbalanced that of six thegns ; 
 the oath of one thegn that of twelve ceorls. If the accused 
 were subject to a hlaford, the lord or his gerefa might 
 offer to swear on behalf of the vassal. But if the testimony 
 of the lord were not in his favour, the accused vassal was 
 bound either to produce a triple number of compurgators 
 or to undergo an ordeal of threefold rigour. Not only the 
 accused, but the accuser also, was bound to take an oath 
 (for-ath) that he was not actuated by interested or vin- 
 dictive motives. 
 
 2. But compurgation was not always allowed. In cer- Ordeal, 
 tain cases, as when a man was taken red-handed, or 
 bearing other proofs of guilt, he was obliged to submit to 
 
 the ordeal. The ordeal was also compulsory — (i) where 
 the accused was unable to produce a sufficient number of 
 compurgators ; (2) where he had been notoriously guilty 
 of perjury on a previous occasion ; (3) where he was not 
 a freeman — unless his hlaford swore to his belief in the 
 innocence of the accused, or bought him off by paying the 
 wergild. 
 
 The ordeal, or judgment of God, was of three kinds — hot 
 iron, hot or cold water, and the corsnaed, or accursed 
 morsel. It was to be undergone (except as to the cold 
 water ordeal) in a church, and under the superintendence of 
 the priests. It is very difficult for us to understand how 
 even the most innocent could have escaped condemnation 
 under this process, except by the collusion of the officials ; 
 but there is no doubt that in its origin the ordeal was 
 intended as a reverent appeal to God, in the firm belief 
 that He would make the truth manifest. 
 
 3. Besides the compurgators, or witnesses to character, Legally 
 there was also, in civil causes, a special class of witnesses witnesses to 
 appointed by law for the attestation of facts — bargains and ^^argams. 
 sales. In some respects they are analogous to the public 
 notaries of the present day. They are first mentioned in a 
 
 law of King Athelstan (a.d. 924-940), which enacted that 
 there should ' be named in every reeve's " manung " (dis- 
 trict) as many men as are known to be unlying, that they 
 
44 From the Teutonic Conquest of Britain [Ch. 
 
 may be for witness in every suitA^ But the most explicit 
 information about these legal witnesses is contained in the 
 Laws of Edgar (959-975) : * This, then, is what I will : that 
 every man be under " borh " both within the " burhs " and 
 without the " burhs ; " 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 wapen- 
 take ; 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 men 
 let there be at every bargain two or three as witness.'^ 
 The sworn testimony of these legally appointed witnesses 
 was decisive of any dispute which might subsequently 
 arise.^ 
 Punish- The principle that every injury either to person or pro- 
 
 ments. perty might be compensated by a money payment was 
 
 Wergild. common to all the northern nations. It was introduced 
 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 kindred ; 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, 1 200 shil- 
 
 ^ Cone. Exon. cap. i. (Thorpe, Anc. Laws and Inst.) [Sel. Chart 65.] 
 
 2 Edgar, Secular Ordnance, Suppl. cap. 3,4, 5,6. \Id, 71. '^^^M '= surety, 
 * burh ' = town,] 
 
 3 For the ancient English judicial system, see Forsyth, Trial by Jury, 
 
 PP- 54—92. 
 
 "* [M. Esmein, Rev. Gin. du Droit, 1885, p. 302^ seqq, cites letters of Sidonius 
 ApoUinaris, proving a Gallo-Roman compositio in criminal causes, and argues 
 that customs strikingly similar to those of the invaders were previously estab- 
 lished in Gaul. — Ed.] 
 
I.] to the Norman Conquest of England. 45 
 
 lings.^ The wer of an ealdorman was double that of a 
 king's thegn ; that of an atheling three times, that of a 
 king usually six times as much. For bodily injuries a bot Bdt. 
 was payable, being highest in amount where any disfigure- 
 ment ensued.^ In every case the King was entitled to a Wite. 
 wite, or fine, for the breach of his peace. In the course of 
 time capital punishments were introduced for offences Death, 
 against the State, or the King as its representative. Alfred 
 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 neither 
 severity nor lenity seems to have availed to restrain 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 actu- 
 ally 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 
 laws,^ extend in an unbroken series from the laws of Ethel- f^^l^^^ 
 bert, the first Christian king of Kent (600), down to (600—1066.) 
 the present time. The earliest written collections are 
 
 1 From the amount of his wer a thegn was sometimes called a twelf-hynde 
 man (hynde, hund, here = a hundred), a lesser thegn a six-hynde man, and a 
 ceorl a twy-hynde man. 
 
 ' The bot for the smallest disfigurement of the face was three shillings, the 
 same as for breaking a rib. 
 
 3 [In the scheme of European law here suggested, the Brehon law would 
 clearly belong to the Archaic system, and such would seem to be the true view, 
 from the researches of Sir Henry Sumner Maine, M. d'Arbois de Jubainville, 
 and others. For the laws of Ethelbert, cf. Haddan and Stubbs, Councils and 
 Ecclesiastical Documents. Oxford, 1869 — 78, vol. iii., pp. 42 — 50. — Ed.] 
 
46 From the Teutonic Conquest of Britain [Ch. 
 
 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 centralised state organisation. 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' ^ 
 But scattered through the collection there occur from time 
 to time many enactments of the highest interest and 
 importance as elucidations of the early history of the 
 Constitution.^ 
 Early at- Some of these laws, e.g.y those of Alfred (890), of 
 
 cXcalion Ethelred (978-1016), of Cnut (1016-1035), and those 
 in England, ascribed to Edward 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 the 
 legislator, ^j^j^gt 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 pre- 
 decessors ; but his real position, as a compiler of old rather 
 than an originator of new legislation, is accurately set forth 
 
 1 Stubbs, Sel. Chart. 60. 
 
 2 These passages are collected by Bishop Stubbs in his Select Charters, 
 pp. 60—75. 
 
I.] to the Norman Conquest of England, 47 
 
 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 no other wise 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, iElfred, 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.' ^ 
 
 The general features of the institutions and laws of the 
 English people during the five hundred years preceding 
 the Norman Conquest have now been briefly surveyed. In Diversities 
 different districts and at different periods a great 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, however, be supposed 
 that during this lengthened period the institutions of the 
 English were at any time stationary. They were subject Gradual 
 to a marked though gradual process of development, the Focess of 
 
 , , - - . - - - Ml develop- 
 
 general tendency of which may be described as a move- ment : 
 ment from the Personal organisation characteristic of all 
 ancient systems of government towards the Territorial from Par- 
 organisation which forms the basis of the modern State. Te"j.^itod 1 
 At the beginning of the period, the Anglo-Saxon Kings organisation, 
 were the leaders of the people, not the lords of the soil, 
 their jurisdiction was primarily over the persons of their 
 subjects, not over the territories included within the 
 
 1 Alfred's Dooms. Thorpe's Anc. Laws and Institutes, i. 58, 59 ; Free- 
 man, Norm. Conq. i. 53. 
 
4^ From the Teutonic Conquest of Britain, [Ch. i. 
 
 geographical boundaries of their kingdom.^ Towards the 
 close of the pre-Norman period, the King, though still 
 * King of the English ' had become, in addition, lord of 
 the English land. Nearly two centuries were indeed to 
 elapse before King John should declare himself, on his 
 great seal. Rex Angliae instead of Rex Anglorum, but the 
 transition from the Tribal to the Territorial system, from 
 the kingship of the people to the conception of the King 
 as feudal lord of both kingdom and people, was already 
 far advanced towards completion.^ 
 Increase in But whilst, in theory, the power of the King v/as rising 
 great nobles! higher and higher, it was practically limited by the simul- 
 taneous advance in the power of the great nobles, who 
 were constantly tending towards a position not far removed 
 from that of the great feudatories of the Continent. Under 
 Edward 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 
 The great Kinsf and the liberty of their fellow subjects. Cnut divided 
 
 Earldoms , , . , . / t- i i -r^ i • n t 
 
 under Cnut the kmgdom mto four great Earldoms or Duchies ; and the 
 ih^c'^^^'^^ same policy was continued by Edward the Confessor, in 
 fessor. whose reign the whole land seems to have been divided 
 
 among five Earls, three of them being Earl Godwin and his 
 sons Harold and Tostig. The power and statesmanship 
 of William the Norman prevented the threatened dis- 
 integration of the kingdom. 
 
 1 Palgrave, Eng. Commonwealth, pt. i. p. 62. 
 . 2 stubbs (Const. Hist., i. 166, 168). 
 
 [For recent views on the growth of Feudalism in France, cf. Flach, Les 
 Origines de la France AnciennCy Paris. Larose et Forcel. The expres- 
 sion * Duchies ' in the text is perhaps somewhat misleading. The epithet Dux 
 is no doubt found in A.-S. Charters, and it is urged by Mr. W. A. Lindsay, 
 M.A., in Genealogist, N. S., i. and ii., 1884-5, •^•^- 'Dukes, Earls, and 
 Maormars,' that there is internal evidence of a distinction between the Dux 
 and the Ealdorman, and that the Dux was the superior. The greater Earls 
 were probably willing to be adorned with high-sounding titles, but evidence 
 of a permanent substantive rank in the A.-S. hierarchy superior to that of 
 Ealdorman or Eorl, i.e.. Earl, appears still to be wanting. In Celtic Scot- 
 land there certainly does not seem to have existed any rank between the Earl 
 and the King.— Ed.] 
 
49 
 
 CHAPTER II. 
 
 THE NORMAN CONQUEST. 
 
 On the death of Edward the Confessor (5th of January, Disputed 
 
 1066), the succession to the crown was disputed. The heir succession 
 
 to the 
 
 of the house of Cerdic, Edgar the Atheling, grand-nephew Crown, 
 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 at its head. King 
 Edward on his death-bed had recommended as his successor 
 his brother-in-law. Earl Harold. The Earl was the most Earl 
 able general and statesman of the time, already exercising ^^'^o^*^ • 
 a quasi-Royal authority through his own personal influence 
 and the vast possessions of the Godwin 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. ^ 
 The Witan, who were at this time assembled in their elected and 
 ordinary mid-winter session, approving of Edward's re- KiX"^^ 
 commendation, elected Earl Harold King of the English, 
 and he was forthwith anointed and crowned by Aldred, 
 Archbishop of York.^ 
 
 But there was another competitor for the crown in the William, 
 person of William, Duke of Normandy, who was cousin to Normand 
 
 ^ 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, [The 
 exact relationships of Gytha have been matter of dispute among genealogists. — 
 Ed.] 
 
 2 Flor. Wigorn. an. 1066. ' Quo [Eadwardo] tumulato, Subregulus 
 Heraldus, Godwini Ducis filius, quern Rex ante suam decessionem regni suc- 
 cessorem elegerat, a totius Angliae primatibus ad regale culmen electus, die 
 eodem ab Aldredo Eboracensi Archiepiscopo in Regem est honorific^ conse- 
 cratus. ' 
 
 C.H. E 
 
50 The Norman Conquest, [Ch. 
 
 Edward 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 appoint- 
 ment or promise had indeed been made, which seems 
 probable,^ it was superseded by the last expression of 
 King Edward's wishes. Under any circumstance it could 
 merely amount to a recommendation to the Witan. A 
 King of the English had never possessed a Constitutional 
 The king- right to bequeath his kingdom like a private estate. The 
 elective. nght 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 exercised, been restricted to the 
 members of the Royal house ; but failing an eligible descen- 
 dant of Cerdic, the choice of the nation was unlimited. 
 The Con- William, however, professed to be merely asserting his 
 
 quest. 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 
 i40ct.io66. '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. 
 Although, on the news of Harold's death, the Londoners 
 • at once chose Edgar Atheling for king, disunion and the 
 lack of effective organisation prevented any successful 
 William resistance to the onward march of the invaders. William 
 crowned" ^ad as yet conquered but a very small portion of the 
 King of the kingdom, but such was the panic of the nation, that he was 
 elected king by .the Witan, and crowned at Westminster 
 on Christmas Day, 1066, by the same Archbishop Aldred 
 who had crowned the unfortunate Harold.^ In conformity 
 
 1 See Freeman, Norm. Conq. ii. 296 — 304. 
 
 ' Will. Pictav., Gesta Willelmi (ed. Maseres), p. 145; Flor. Wigorn. ann. 
 1066. 
 
II.] The Norman Conquest, ^X 
 
 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 Theoreti- 
 as the appointed heir of Edward and the lawful successor stitutional 
 of the English kings. In that character he was obliged to ^^"S- 
 respect the laws and customs of the Kingdom. Theoreti- 
 cally he continued to govern as a Constitutional king, 
 though practically in defiance of everything but his own 
 wishes. The continuity of the English Constitution was not Continuity 
 broken by the Norman Conquest. That event .ought to be stitution. 
 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 of King and Witan remained constitutionally the 
 same under William as under Edgar.^ 
 
 The infusion of Norman blood has been considered The Norman 
 extensive enough to count as one of the four chief 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.^ 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 civilisation of the Romanised Gauls and 
 Franks, developing in the process a brilliant nationality 
 distinct alike from the nationality of their origin and of 
 
 * See Freeman, Norm. Conq. i. 72. 
 
 2 [The writer of an interesting though somewhat fanciful work, The Norman 
 People, 1874, has offered an elaborate argument in favour of the great extent of 
 the Norman element. But though his researches are full of curious informa- 
 tion, the deductions of the author are far from carrying conviction in many 
 cases upon which he relies, and are not generally accepted. — Ed.] 
 
 3 Supra, p. 3. 
 
 E 2 
 
52 The Norman Conquest. [Ch. 
 
 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 Nor- 
 mans. The French of Normandy was familiarly spoken 
 in the palace of Westminster. The court of Rouen seems 
 to have been to the court of Edward the Confessor what 
 . the court of Versailles long afterwards was to the court of 
 Charles the Second.' ^ 
 Effects of The immediate changes which the Conquest introduced 
 
 quest.° " were undoubtedly great, but they were practical rather than 
 formal. The power of the Crown was vastly increased. 
 
 C' 
 
 As the government became more centralised, 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 
 [y\ England was enormously changed. TEe^Id dynasty had 
 been supplanted by an alien family. The old aristocracy 
 was superseded by a new nobility.^ The old offices 
 received new names — the ealdorman, or earl, became the 
 conies^ the sheriff the vice-comes; and with the new names 
 and alien officials, the old laws, though retained, and even 
 
 1 Macaulay, Hist. Eng. i. 12 [ed. 1861]. 
 
 2 [The Norman nobility in England can, in the main, of course, only be 
 spoken of as ' new ' with regard to its English settlement. Those who were 
 already the nobles of the Norman Duchy were necessarily also the nobles of 
 the English Kingdom, when the Norman Duke had become King of the 
 English. M. Glasson, in his Droit et Inst. Pol. de PAjigleterre (Paris. Pedone- 
 Lauriel. 1882 — 3), ii. p. 164, speaks, perhaps rhetorically, as though every 
 follower of William became if so facto noble in England (Tous les conquerants, 
 meme de la plus basse extraction, devinrent nobles). There seems to be no more 
 reason to believe this than to believe that they were all noble in Normandy, 
 or in the various other lands from which the * aventuriers ' and ' enfants 
 perdus de I'Europe Occidentale ' of M. Glasson 's text flocked to William's 
 standard. — Ed,] 
 
II.] The Norman Conquest, ^% 
 
 promulgated anew, must have been considerably modified 
 in practical administration.^ 
 
 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, ultimately 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 about, Its gradual 
 and the nature of the system of tenure thus established, ment. 
 demand some consideration. 
 
 At first the Conqueror,^ with an appearance of strict (ci.j 
 legality, appropriated merely the extensive Royal domains — 
 the folkland, now finally changed into terra regis — and the 
 ^arge forfeited estates of the Godwin family and of all 
 those who had, or were suspected of having, taken up arms 
 against him. Reserving to himself as the demesne of the 
 Crown more than 1400 large manors scattered over 
 various counties, he divided the rest among his com- 
 panions 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 landowners were at first suffered 
 to retain their possessions. But there is reason to believe The English 
 that this was subject to the condition of accepting a re-grant [^nds."^ * ^^^ 
 from the Conqueror ; the more important personages, in 
 
 1 Freeman, Norm. Conq. i. 4. [Cf. Glasson, op. cit. ii. p. 21. Quant aux 
 Saxons, s'ils ont ete vaincus, cependant ils ne sont pas une nation demembree, 
 disloquee, deracinee, inerte, comme les populations du continent qui, au sortir 
 de la longue domination Romaine, ont ete livrees ^ I'invasion desordonnee des 
 Barbares ; les Saxons font masse, restent attaches a leur sol. — Ed.] 
 
 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 subjugation, 
 but signified merely one who 'had sought and obtained his right.' In reality, 
 however, the modern meaning of the term more accurately describes William's 
 practical position, which was, as he himself once expressed it, ' King by the 
 edge of the sword.' 
 
54 
 
 The Norman Conquest, 
 
 [Ch. 
 
 Insurrec- 
 
 Ci tions, fol- 
 
 V" ) lowed by 
 
 extensive 
 
 confiscation. 
 
 return for their adhesion, receiving back their estates as a 
 free gift, the smaller owners on payment of a money con- 
 sideration.^ By this means William procured a peaceable 
 acknowledgment of his title over extensive districts into 
 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 dif- 
 ferent 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 confiscation 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 actuated. Thus, by a gradual process 
 and with an outward show of legality,^ 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 accus- 
 tomed in their own country. The maxim of later times, 
 * Tout fuit en lui et vient de lui al commencement,' ^ seems 
 
 1 The contemporary Peterborough 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 syi^an heora land bohtan ' (A. -Sax. 
 Chron. 1066). [All were obliged to seek the King, and to buy their lands, 
 says Morgan, Eng. under Norm. p. 3, citing, * Hanc terram habet Abbas 
 in vadimonio pro xi marcis auri, concessu Engelrici quando redimebant Anglici 
 terras suas,' Domesday, ii. 360; Cf. Freeman, Norm. Conq. iv. 25. — Ed.] 
 The Inquisitio Eliensis also confirms this view : ' Hoc totum tripliciter ; scilicet 
 tempore Regis Eaduardi, et quando Rex Willelmus dedit ; et quomodo sit 
 modo.' [This passage is on f. 38a of Tiberius A. VI., from which MS., in the 
 Cotton Collection, British Musuem, the text of the Inq. Eliensis has been 
 printed by Mr. N. E. S. A. Hamilton, in his valuable Inquisitio Comitatus 
 Cantabrigiensis, edited for the Royal Society of Literature, London, 1876, and 
 will be found on p. 97 of that edition. — Ed.] 
 
 2 Nulli Gallo datum quod Anglo cuiquam injuste fuerit ablatum. — Orderic. 
 Vital. [This statement by Orderic is the more interesting from the fact that, as 
 Freeman, Keign of William Rufus^ i. 271, says, he never forgot his birth on the 
 banks of the Severn. But it must not be presumed to mean more than outward 
 legality. — Ed.] 
 
 3 Vpcir "RnnV 
 
 Year Book, 24 Edw. HI. 65. 
 
II.] The Norman Conquest. 55 
 
 to have been something more than a fiction. At the time 
 of the Domesday survey there still remained some few- 
 exceptions to the general feudal tenure, but before the 
 accession of Hen ry I. all t enures seem to have become 
 uniformly feudal.^ 
 
 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 grant- 
 ing out frontier lands to the limitanei miliieSy to be held 
 by military service ; but its direct and principal sources 
 were (i) the system of beneficiary grants which grew up 
 under the Frank Kings and Emperors, working in com- 
 bination with (2) the practice of personal commendation 
 or vassalage, which seems to have superseded and absorbed 
 the primitive and, in many respects, analogous German 
 [and Celtic] ^ comitatus. 
 
 On the Continent, Feudalism had become much more The 
 than a mere system of tenure. It was inseparably bound "^achineryof 
 
 • 1 1 c 11111 government 
 
 up With the system of government and the legal and feudalised, 
 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. 
 The practice of * sub-infeudation ' naturally followed. The Sub-infeuda- 
 great feudatory who had received large grants of land ^^°"' 
 
 ^ Stubbs, Select Chart., Introductory Sketch, 14. 
 
 2 [For recent views on the history of Feudalism in France, see Les Origines 
 Se la France^ by J. Flach. Paris. Larose et Forcel, vol. i., and cf. also, 
 for special subjects, Garsonnet, Hist, des Locations PerpetuelleSy Lefort, Hist, 
 des Contrals de Location Perpetuelle, and Arts, by Garsonnet, in Nouv. 
 Rev. Hist, de Droit. Paris. Larose, and by Lefort in Rev. Gen. du Droit, 
 Paris. Thorin, and other works and arts, cited in list of authors in present 
 edition. — Ed.] 
 
 ' [That there was a Celtic comitatus is clearly proved by M. Joseph Lefort, 
 in his interesting essay, Le Droit et les Lnstitutions des Gaulois, already 
 cited. — Ed.] 
 
56 
 
 The Norman Conquest. 
 
 [Ch. 
 
 Commenda- 
 tion. 
 
 Feudal 
 tenure of 
 Church 
 lands. 
 
 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 them- 
 selves strong enough to establish a number of provincial 
 principalities — imperia in imperio ; in which, while ad- 
 mitting 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.^ 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 their lord's 
 standard against the King.^ 
 
 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 lawlessness and 
 rapine, were glad to submit their persons and estates, by 
 way of commendation, to some powerful neighbouring lord.^ 
 Not only the possessions of laymen, but those of the Church, 
 became subject to the all-pervading feudal influence : the 
 Bishops and Abbots, equally with the feudal nobles amidst 
 whom they lived, swearing fealty for their lands to the 
 
 1 Hallam, Middle Ages, i. [185]. 
 
 2 So late as the reign of St. Louis (1226 — 1270) it is laid down in his Estab- 
 lishments, that a vassal to whom the King had refused justice might summon 
 his own tenants, under penalty of forfeiting their fiefs, to assist him in obtain- 
 ing redress by arms. — Etab. de St. Louis, c. 49 ; Hallam, M. A. i." [167]. 
 
 3 See Guizot, Essais sur I'Hist. de France, 166, and Hallam, M. A. i. 
 [316 — 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. [On Commendation, cf. Garsonnet, La Re- 
 commandation, &c., in Nouv. Rev. Hist, de Dr. for 1878, and Lefort, Le 
 Patrocinmm, in Rev. Gin. du Dr. for 1889. — Ed.] 
 
II.] The Norman Conquest. 57 
 
 King or other superior, and exercising feudal jurisdiction 
 and authority over their own vassals.^ 
 
 In England an indigenous growth of feudalism had been Growth of 
 going on, but its development had been slower and more i^^Englami. 
 purely Teutonic than on the Continent, where the legal 
 principles and practices of imperial Rome exercised an 
 accelerating influence. As a system, Feudalism cannot be 
 said to have been established in England prior to the Con- 
 quest, but all its elements had long existed, both sepa- 
 rately and sometimes in combination. The two chief [Its two chief 
 elements of Feudalism are: (i.) The personal relation of 
 lord and vassal founded on contract, and binding the of mutual 
 parties to mutual fidelity, the one owing protection, the^^^^^^^' 
 other service. (2.) The holding of the usufruct (dominium 2. Tenure 
 utile) of land on the condition of rendering military service, service.] 
 the ultimate property {dominitmi directum) remaining in 
 the lord, the grantor. Combined, these two elements con- 
 stitute Feudalism ; apart, neither is sufficient. In the 
 personal relation which existed between the Teutonic 
 priiiceps 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, in so much that the lordless 
 man was soon looked upon as an anomaly in the State and 
 treated as an outlaw.^ 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 
 service more especially. By the beginning of the nth 
 century the King seems to have assumed the right of dis- 
 posing 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,^ a very large part of the 
 
 1 Hallam, Middle Ages, i. [194]. 
 
 2 Supra, p. 27. 
 
 ■^ 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. [Digby, Hist. Law of Real Property, 3rd ed., 
 
58 The Norman Conquest, [Ch. 
 
 land of England had come to be held by a feudal tenure, 
 in contradistinction from alodial ownership, which remained 
 the privilege of the few.^ But up to this stage feudality- 
 had affected only the tenure of land. The policy initiated 
 by Cnut and continued under Edward the Confessor, of 
 dividing the country among a few great Earls, who in some 
 cases succeeded in transmitting their jurisdictions to their 
 children, carried the feudal tendency 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 of 
 En^Ji^h and Normandy, William had been familiar with the evils of 
 
 Continental 
 feudalism. 
 
 p. 26, notes that liberi homines commendati is a very common expression in 
 Domesday, and as to land, shows that alodium was changing its meaning at 
 this date. Thus, ipse tenuit in alodio de rege Edivardo, is also a common entry 
 in Domesday, proving that though the name of allodial ownership remained, 
 its essence was gone, and the history of land-holding in England had entered 
 upon a new phase, which Mr. Digby justly describes {loc. cit.) as a transitional 
 period between absolute independence and feudal tenancy. This change was, 
 of course, partly due to the need of protection, as in Domesday, p. 326, and 
 p. 58, where a man and two women commended themselves, pro defensionCy 
 to the Abbey of Chertsey, and Tori, T. R. W. , commended himself to Bishop 
 Osmund, as his father had done, T. R. E., to Bishop Herman, /r^ defensione. 
 But it was also part of a general change, gradually tending to the complete 
 Feudalisation of Western Europe. In Eastern Europe, the Feudal system was 
 never anything else than an exotic introduced by the Latin invaders of the 
 Eastern Roman Empire. — Ed.] 
 
 ^ 'The dependent,' remarks Bishop 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. . . . 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 unconnected with the comitatus, in the 
 English they are in the closest connection.' — Const. Hist. i. 153, n. [Concern- 
 ing the nature and history of the beneficiary system, there is still some con- 
 troversy. M. Garsonnet, in the Nouv. Rev. Hist, de Droit, Paris, 1878 {La 
 Recommandation et les Benefices h VEpoqtie Franque), entirely repudiates the 
 ordinary view. His language is so strong as to deserve citation : ' Les 
 benefices n'ont done 6te, en droit, ni revocables, ni temporaires, mais il y en a 
 eu, k tout temps, d'hereditaires et de viagers ' {pp. cit. , p. 474). He admits the 
 frequency of life Beneficia, but asserts that their perpetuity was recognised 
 under the Franks in Gaul, as early as the Treaty of Andelot, in the 6th 
 century, and in Brittany from the 9th century. That the two forms existed 
 side by side during a portion of the Beneficiary period is no doubt true ; and 
 it may be that we ought to carry that portion further back than the ordinary 
 accounts take it. But M. Garsonnet 's position seems too extreme. — Ed.] 
 
II.] The Norman Conquest. 59 
 
 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 kingdom. From the very- 
 first he took measures to check the natural development 
 of feudalism in England ; and although by gradually substi- 
 tuting the Frankish system of land tenure for the compli- 
 cated system which had grown up in England, he may be 
 said to have established the Feudal System, it was as a 
 system of tenure only, not of government organisation. 
 Hejwas determined to reign as the King of the nation, not Feudal 
 merely as feudal lord. While, therefore, availing himself {^^^^^^j^^^^j. 
 of all the advantages of the Feudal System, he broke into feudal prin- 
 its ' most essential attribute, the exclusive dependence of a government 
 vassaTupon his lord,' ^ by requiring, in accordance with the 
 old English practice,^ that all landowners, mesne tenants 
 as well as tenants-in-chief, should take the oath of fealty to 
 the King. This was formally decreed ^ at the celebrated 
 Gemot held on Salisbury Plain, on the ist of August, 1086, Gemot'oi 
 
 at which the Witan and all the landowners of substance in(^^^^^^"^y' 
 
 Kd. 1080. 
 
 England, whose vassals soever they were, attended, to the 
 number, it is reported, of 60,000. The statute, as soon as 
 passed, was carried into immediate effect, and all the land- 
 owners {landsittende men) became * this man's men,' and 
 ' swore him oaths of allegiance that they would against all 
 other men be faithful to him.' * 
 
 ^ Hallam, Midd, Ages, ii. 315. 
 
 ' The oath is mentioned in the laws of King Edmund {circ. A. D. 943) : De 
 Sacramento Fidelitatis Regi Edmundo faciendo. In primis ut omnes jurent in 
 nomine Domini, pro quo sanctum illud sanctum est, fidelitatem Edmundo 
 regi, sicut homo debet esse fidelis domino suo, sine omni controversia et sedi- 
 tione, in manifesto, in occulto, in amando quod amabit, nolendo quod nolet ; 
 et antequam juramentum hoc dabitur, ut nemo concelet hoc in fratre vel 
 proximo suo plus quam in extraneo. — Thorpe, Anc. Laws and Inst. ; Select 
 Chart. 36. 
 
 ^ 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. 
 
 ■* Ang.-Sax. Chron. s.a. 1086. [It maybe questioned whether, in exacting 
 this general homage, which has been so strongly brought forward as an in- 
 novation, William was really doing more than he had been entitled and 
 
6o The Norman Conquest, [Ch. 
 
 Domesday This national act of homage and allegiance to the King, 
 ^' which, far from marking the formal acceptance of Feudalism, 
 as some have contended, was, in reality, anti-feudaj, 
 followed immediately upon the compilation of the Domes- 
 day Survey, which had been decreed in the 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 in the remark- 
 ably short space of a single year. In each shire the com- 
 missioners 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 coun- 
 ties of Northumberland, Cumberland, Westmoreland, and 
 Durham, and part of what is now Lancashire. It enu- 
 merates 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 Edward, at the 
 Conquest, and at the date of the survey, and, which gives 
 the key to the whole inquiry, informs the King whether any 
 advance in the valuation could be made.^ 
 
 accustomed to do as Duke of Normandy. Cf. CotisUimicr du Pays et Diiche 
 de Norniandie (Rouen and Paris, 1539), c xiiij., fol. xxiij. ; and NouvelU 
 Revue Historique de Droit Fran^ais et Etranger (Paris. Larose et Forcel), 
 1883, p. 662, Art. by M. Beaudoin. — Ed.] 
 
 1 The returns were transmitted to Winchester, digested, and recorded in 
 two volumes which have descended to posterity under the name of Domesday 
 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 inform^ition 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. [The origin and meaning of the name, Domesday 
 or Domesday Book, cannot yet be said to be free from doubt. Stow gives the 
 ' Domus dei ' explanation, while the author of the Dialogus de Scaccario pro- 
 pounds the ' Dies Judicii ' theory. It is certain, however, that the name was 
 applied to several similar records, as we have notices of the Domesday of 
 St. Paul's, or of Ralph de Diceto, the Domesday of Chester, the Domesday of 
 
II.] The Norman Conquest, 6i 
 
 In addition to his exaction of homage from the sub- Checks to 
 tenants, William took other effective measures to keep the onhTfeuda- 
 great feudatories in check. The lordships which he be- tories. 
 stowed upon his principal barons were scattered over thd^fC^ 
 kingdom, so that in no one district should the territories of 
 one man be great enough to tempt him to rebellion.^ An 
 unforeseen but very important result of this arrangement 
 was the necessity under which the nobles found them- 
 selves 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.' ^ William abolished the great Great W' ' 
 Earldoms which had threatened the integrity of the Kingdom Abolished 
 under Edward, and, reverting to the earlier English prac- 
 tice, restricted the jurisdiction of the Earl to a single shire. 
 The government of the shire — judicial, military and finan- 
 
 York, &c. In a Paper on The Study of Domesday Book, printed in Domesday 
 Studies, vol. i., Mr. Stuart Moore, F.S.A., discusses the name, without ap- 
 parently throwing any new light upon it. But he states {Ibid., p. 4) that ' wherever 
 the monk transcribing the Record has done so correctly, and appears to have 
 in any way studied his subject, he invariably writes Domesdei or Domesday, 
 but where the scribe has been manifestly ignorant we generally find Domus 
 Dei.' On Domesday generally, see, for recent views, Domesday Studies, i., 
 Lond., 1887, issued by the Domesday Commemoration Committee ; and a 
 useful Popular Account, by W. De Gray Birch, F.S.A., Lond., S.P.C.K. 
 1887. Cf. also on special subjects. Papers by the following: O. C, Pell, M.A., 
 on the Domesday Geldahle Hide, Trans. Camb. Ant. Soc. vol. vi., and on a 
 New View of the Geldable Unit of Asses s??ient, in Domesday Studies, vol. i., and 
 Arts, by same in Arch. Rev. vol. ii., 1889, p. 350, and by J. H. Round, M.A., 
 on Domesday Measures of Land, in Arch. Rev., 1888, vol. i,, p. 285, and 1889, 
 vol. iii., p. 130, and by W. H. Stevenson, in criticism, and O. C. Pell, in 
 defence, on The Long Hmtdred, 1890, vol. iv,, pp. 313, 460 (but N. and Q., 
 7th S. viii., Arts. s. v. are not on same subject) : and Eng. Hist. Rev., 1890, 
 p. 95, The Hundreds of Domesday, by W. II. Stevenson. The reasons which 
 existed for a New Survey of England after the Conquest are briefly but forcibly 
 marshalled by Mr. Stuart Moore, in his Paper in Domesday Studies, pp. 10 — 12, 
 and they may well be accepted as convincing in regard to the fiscal necessity 
 for such a measure, and the general equity with which it was carried 
 out.— Ed.] 
 
 1 From Domesday we learn that the vast possessions of the king's brothers, 
 Odo, Bishop of Bayeux, and Robert, Count of Mortain, were scattered over 
 seventeen and nineteen counties respectively. Eudes the steward (dapifer) held 
 fiefs in twelve counties. Hugh (Lupus) of Avranches held lands in twenty-one 
 counties, exclusive of those in his palatine earldom of Chester. See Thorpe's 
 Lappenberg's England under the Normans, p. 201. 
 
 2 Freeman, Norm. Conq. iv. 71. 
 
;62 
 
 The Norman Conquest, 
 
 [Ch. 
 
 Counties 
 Palatine. 
 
 Feudal 
 tenures. 
 
 C^^cial — 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, 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 courts of the Shire and the Hundred, by which 
 the private manorial jurisdictions of the nobles were re- 
 strained, as far as possible, within narrow limits. 
 
 The political and social influence of the system of Feudal 
 tenure gradually established in England under the Con- 
 queror and his son Rufus 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 development of our Consti- 
 tution and laws. The Feudal tenures were, indeed, abolished 
 by Act of Parliament in the 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 ; ' ^ 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 prac- 
 tically 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 them- 
 
 1 Coke upon Littleton, cap. i, 
 
 sec. I. 
 
II. J The Norman Conquest. 63 
 
 selves from their under-tenants.^ Of these obligations the 
 
 most honourable was that of knight-service. This was Tenure by 
 
 the tenure by which the King granted out fiefs to his ^"^^*^" 
 
 J ^ ^ , , service. 
 
 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 the grant of a fief, the tenant was publicly invested Investiture, 
 with the land by a symbolical or actual delivery, termed 
 livery of seisin. He then did homage, so called from the Homage. 
 words used in the ceremony: *Je deveigne votre //^;;2;;2^.' 
 flumbly kneeling before his lord, with sword ungirt and 
 head uncovered, he placed his hands between those of his 
 lord, and pronounced the words : * I become your man 
 from this day forward, of life and limb, and of earthly wor- 
 ship ; and unto you shall be true and faithful, and bear 
 to you faith for the tenements I claim to hold of you.' ^ 
 The lord then kissed his vassal on the cheek and received Fealty. 
 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 ex- 
 
 1 The tenants-in-chief, including the ecclesiastical corporations, enumerated 
 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. 
 
 2 Littleton {temp. Edw. IV.), 1. i. c. lo, s. 85, Glanvill {temp. Hen. II.) 
 gives the form thus : — ' Fieri autem debet homagium sub hac forma, scilicet ut 
 is qui homagium facere debet, ita fiat homo domini sui, quod fidem illi portet, 
 de illo tenemento unde homagium suum praestat, et quod ejus in omnibus 
 terrenum honorem servet, salva fide debita domino regi et haeredibus suis. ' — 
 Lib. ix, c. I. [Cf. Guizot, Civilisation en France (Brussels. 1839), iv. p. 249, 
 where is given the form in the Coutume de la Majxhe, art. 189, in nearly 
 identical words : — ' Jeo deveigne vostre home de cest jour en avant, de vie et 
 de membres, et foy a vous porterai des tenemens que jeo claime de tenir de 
 vous.' — Ed.] 
 
64 
 
 The Norman Conquest. 
 
 [Ch. 
 
 Incidents of 
 tenure by 
 knight- 
 service. 
 
 Aids. 
 
 Relief and 
 Primer 
 seisin. . 
 
 pense. 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 sidvre, to follow) at the court-baron of the manor, as 
 the lordship of pre-Norman times was now termed.^ 
 
 Tenure by knight-service was also subject to several 
 other incidents of a burdensome character, the unfair and 
 oppressive exactions 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 : 
 
 I. The tenant was at first expected, and afterwards 
 obliged, to render to his immediate lord certain contribu- 
 tions termed Aids. These, which were to be reasonable in 
 amount, were due on three special occasions — to ransom 
 the lord's person from captivity ; to make his eldest son a 
 knight ; and to provide a suitable portion for his eldest 
 daughter on her marriage." The Stat, of Westminster I. 
 (3 Edw. I.) fixed the reasonable aid at 20s, for every 
 knight's fee, and for every ;^20 value of land in socage. 
 
 2. On the death of the tenant, his fief descended to his 
 heir, sons being preferred to daughters, and the elder to 
 the younger son. But before taking up his ancestor's 
 estate, the heir, if of age^ had to pay a fine called a Relief, 
 which closelyresembled and was apparently a feudalised 
 form of the ancient English Heriot.^ By demanding arbi- 
 
 1 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.' — Stubbs, Const. Hist. i. 273. [The kindred word mesntl= 
 mansion, is of frequent occurrence in Norman place-names, and has entered 
 into the composition of some English family names of Norman origin, e.g., 
 Mesnilwarine, corrupted into Mainwaring.— Ed.] 
 
 2 Glanvill, lib. ix. c. 8 ; Magna Charta, c. 12 {infra^ ch. iv.). 
 
 3 Stubbs, Const. Hist. i. 261. [Thus Digby, History of Law of Real 
 Property {1884), pp. 39, 40, says, the Relief was confounded with the custom 
 
II.] The Norman Conquest. 65 
 
 trary and exorbitant reliefs the Norman kings, William 
 Rufus especially, often obliged the heir in effect to purchase 
 or redeem his lands. This abuse was specially provided 
 against in_the- charter, of Henry I., in which the King 
 promised to exact, and required his tenants to exact from 
 their under-tenants, only the accustomed and legal reliefs.^ 
 Glanvill, in the reign of Henry II., tells us that the rea- 
 sonable relief for a knight's fee was lOOi-., but that the 
 sum due for a barony varied juxta voluntatem et iniseri- 
 cordiam domini regis? The amount was not finally fixed 
 till Magna Charta defined the antiqumn relevium as ;^ioo 
 for a barony, loo^-. for a knight's fee.^ 
 
 Tenants-in-chief were subject to a kind of additional 
 relief termed primer seisiUy which consisted in the right 
 of the King, on the death of one of his tenants leaving an 
 heir of full age,- to receive one year's profits of the inherited 
 land.* 
 
 3. If the heir were under age, the lord was entitled, Wardship. 
 under the name of Wardships to the custody of his body 
 and lands, without any account of the profits. At the age 
 of twenty-one in males, and sixteen in females, the wards 
 were entitled to oiisterlemain or * sue out their livery ' — that 
 is, to require delivery of their lands out of their guardian's 
 hands, on payment of half a year's profits in lieu of all 
 reliefs and primer seisins.^ 
 
 of rendering Heriots on the death of the man or vassal which prevailed before 
 the Conquest, and refers to the Laws of Cnut, 71, 72, for the amounts due as 
 Heriot of an Earl, a King's thane, &c. William's provision on the subject of 
 Reliefs, Mr. Digby derives directly from Cnut's Laws. — Ed.] 
 
 ^ Si quis baronum, comitum meorum sive aliorum qui de me tenent, mortuus 
 fuerit, haeres suus non redimet terram suam sicut faciebat tempore fratris mei, 
 sed justa et legitinia relevatione relevabit eam. Similiter et homines baronum 
 meorum justa et legitima relevatione relevabunt terras suas de dominis suis. — 
 Chart. Hen. I., Thorpe, Anc. Laws and Inst. 215. 
 
 2 Glanvill, lib. ix. c. 4. 
 
 3 Infra, ch. iv. 
 
 ^ Coke upon Littleton, 77A. It was by analogy to the feudal incident of 
 Primer seisin, that the Popes — who, in carrying out Hildebrand's ideas, claimed 
 to be feudal lords of the lands of the Church — subsequently exacted from every 
 beneficed clergyman in England iht. first-fruits of his benefice. 
 
 ^ Wardship and marriage, the most oppressive of feudal exactions, seem not 
 to have been ordinary feudal incidents, but nearly peculiar to Normandy and 
 England (Hallam, Midd. Ages, i. 178). From the charter of Henry I. {infra^ 
 
 CH. F 
 
66 
 
 The Norman Conquest. 
 
 [Ch. 
 
 Marriage. 
 
 Fines on 
 alienation. 
 
 4. The lord also possessed the right of disposing of his 
 female wards in marriage. The rejection by the ward of 
 a suitable match incurred the forfeiture of a sum of 
 money equal to the value of the marriage — that is, as much 
 as the suitor was willing to pay down to the lord as the 
 price of the alliance. If the ward presumed to marry 
 without the lord's consent, she forfeited double the market 
 value of the marriage. This right, which applied not only 
 to female wards, but to daughters who were the presump- 
 tive heirs of living vassals, was originally intended as a 
 security against the lord being obliged to receive the 
 homage of a hostile or otherwise objectionable tenant ; ^ 
 but it was afterwards, without any feudal justification, 
 extended to male wards, and used as a lucrative source of 
 extortion both by the Crown and mesne lords.^ 
 
 5. The right of devising land by will ceased (with a few 
 local exceptions) at the Conquest, and for some time after- 
 wards the freedom of alienation inter vivos ^ which had 
 existed in Anglo-Saxon times, seems to have been limited 
 by certain restrictions in favour of the heir.^ Indirectly, 
 
 p. 84), it would appear that, so far as they were sources of pecuniary advantage, 
 they were not claimed even in England under William the Conqueror, but 
 were among the novel exactions introduced by William Rufus. Though 
 abolished by Henry L, they were soon re-introduced. The Assize of North- 
 ampton, c. 4 (a.d. 1 1 76), expressly gave the wardship of lands to the lord. 
 The feudal lawyers justified the right of wardship on the ground : as to the 
 land, that the infant heir being incapable of rendering the military service, 
 ought not to hold the fief: as to the person of the heir, that it was the interest 
 of the lord to educate him properly for military service. Cf. Fortescue, De 
 Laudibus Leg. Angl. p. 105. [Wardship and marriage undoubtedly prevailed 
 also in Scotland under the Feudal Law. Cf. Sir George Mackenzie of Rose- 
 haugh,. Institutions of the Laiv of Scotland. Edin. 1684. Part ii., Tit. v., 
 where both are duly entered into under the ' Casualities due to the Superior.' 
 See also Lectures on the Governmentj Constitution and Laws of Scotland^ by 
 Alexander Robertson, M.A. London. 1878. p. 89, citing Reg. Maj. IL 
 c. 42.— Ed.] 
 
 1 Ne de inimico suo, vel alio modo minus idonea persona, homagium de 
 feodo suo cogatur recipere. — Glanvill, 1. vii. c. 12. 
 
 2 Glanvill, 1. vii. c. 12; Stat, of Merton, 20 Hen. IH. c. 6. Glanvill {temp. 
 Hen. IL ) expressly limits the lord's right of marriage to female wards. Bracton 
 {temp. Hen. IH.) extends it to both, ' sive sit masculus, sive foemina.' The 
 extension of the right to males was based on a strained and iniquitous construc- 
 tion of the word 'haeredes' in Magna Charta {infra, ch. iv.). By the Statute 
 of Merton the lord's right of selling the ward in marriage, or else receiving the 
 value of it, is expressly declared. 
 
 3 In a fief granted to a man and his heirs, * the ancestor and his heirs took 
 
II.] The Norman Conquest. 67 
 
 however, alienation of portions of fiefs was effected through 
 the medium of sub-infeudation, a process which by the 
 time of Henry II., had been most extensively applied 
 throughout the country.^ By this time also the ancestor 
 appears to have acquired a limited right to defeat the 
 •expectation of his heir.^ Subsequently, by the Statute 
 of Quia Emptores (18 Edw. I. c. i) sub-infeudation was for- 
 bidden, and every freeman was allowed to aliene his land 
 at pleasure (except by will), to be held not of the alienor, 
 but of the lord of whom the alienor had immediately 
 held. All tenants-in-chief, however, still required a licence 
 from the King before they could aliene, for which a fine 
 was, of course, demanded, ^y a statute of Edward II I.^ 
 the necessity for a licence was done away with, and 
 tenants-in-chief were allowed to aliene at will, on payment 
 of a reasonable fine to the king. 
 
 6. Lastly, there was the valuable right of Escheat, by Esclieat 
 which, on the determination of the tenant's estate, — either ^^^^ ^"^ "' 
 on failure of legal heirs {propter defectum sanguinis), or on 
 conviction of the actual tenant of felony or treason (propter 
 delictum tenentis) — the fief reverted to the lord by whom 
 or by whose ancestors it had been originally granted. In- 
 dependently of escheat, the lands of a convicted felon were 
 also liable to forfeiture to the Crown (which intercepted 
 the escheat to the mesne lord) — in the case of treason, for 
 ever ; in other felonies for a year and a day.* 
 
 Besides the tenure by knight-service properly so called, Tenure by 
 there was a species of tenancy in chief by Grand Serjeanty sJrleanty. 
 {per magnum servitium), whereby the tenant was bound, 
 instead of serving the King generally in his wars, to do 
 some special service in his own proper person, as to carry 
 
 equally as a succession of usufructuaries, each of whom during his life enjoyed 
 the beneficial, but none of whom possessed or could lawfully dispose of the 
 direct or absolute dominion of the property.' — Coke upon Littleton, 191 a, n. 
 (i.) vi. 5. 
 
 ^ Report of Lords' Committee on the Dignity of a Peer, 1819, p. 107. 
 
 2 Glanvill, 1. vii. c. i. 
 
 3 I Edw. in. c. 12. 
 
 ■* Wright, Tenures, 44, 120. See Magna Charta, c. 32, infra, ch. iv. 
 
68 The Norman Conquest. [Ch, 
 
 the King's banner or lance, or to be his champion, butler, 
 or other officer at his coronation.^ This was, in fact, merely 
 a continuation of the system which, as we have seen, was 
 early developed in England through the growth of the 
 , Thegnhood,^ and was of the same nature as the fiefs of 
 office so general on the Continent.^ 
 Petit Grants of land were also made by the King to his inferior 
 
 Serjeanty. followers and personal attendants, to be held by meaner 
 services. Among the tenants-in-chief mentioned in Domes- 
 day occur the names of the king's foresters, huntsmen^ 
 falconers, farriers, cooks, and similar officers. Hence, pro- 
 bably, arose tenure by Petit Serjeanty, though later on we 
 find that term restricted to tenure in capite by the service 
 of rendering yearly some implement of war to the King.* 
 It was, in fact, merely a dignified species of the tenure in 
 Socage which has next to be noticed. 
 Tenure in Tenure in Free Socage ^ (which still subsists under the 
 
 Free Socage, j^odern denomination of Freehold, and may be regarded 
 as the representative of the primitive alodial ownership) 
 denotes, in its most general and extensive signification, a 
 tenure by any certain and determinate service, as to pay a 
 fixed money rent, or to plough the lord's land for a fixed 
 number of days in the year. In this sense it is constantly 
 opposed, by our ancient legal writers, to tenure by knight- 
 service, where the service, though esteemed more honour- 
 able, was precarious and uncertain.^ Not being held by 
 military service, socage tenure lacked one of the essential 
 elements of a feud, but the spirit of feudalism was all-em - 
 
 ^ Coke upon Littleton, i. 153. 
 
 2 Supra, p. 26. 
 
 3 The Count of Anjou, under Louis VL, claimed the office of Great Senes- 
 chal of France ; i.e., to carry dishes to the King's table on state days. — ^Hallam, 
 Middle Ages, i. [180]. [Cf. Lavallee, Hist, des Frau^ais, i. 338. — Ed.] 
 
 •* Coke upon Littleton, ss. 159, 160. Per servitium reddendi nobis cultellos, 
 vel sagittas, vel hujusmodi. Mag. Charta, c. 37, infra, cli. iv. 
 
 ^ Socage, from soca-=2>. franchise or jurisdiction. [A.-S. s8c, from saken. 
 Stratmann, O. E. Z>zVA— Ed.] 
 
 ^ Bracton, 1. 2, c. 16, s. 9. The author of Fleta says : Ex donationibus 
 servitia militaria vel magnae serjantiae non contincntibus, oriturnobis quoddam 
 nomen generale quod est socagium. — L. 3, c. 14, s. 9. 
 
IL] The Norman Conquest, 69 
 
 bracing and affected every tenure and every institution. 
 Thus we find that tenure in socage, like that by knight- 
 service, was created by words of pure donation accom- 
 panied by livery of seisin, and was liable to the obligation 
 of fealty invariably, sometimes of homage ; and was in like 
 manner subject, but in a modified form, to many of the inci- 
 dents of tenure by knight-service. Though considered less 
 honourable than the latter, socage was practically much 
 more beneficial, especially in its freedom from the grievous 
 Surdens of feudal Wardship and Marriage.^ 
 
 Besides petit serjeanty, socage tenure comprised two 
 other particular species, burgage and gavelkind. 
 
 Tenure in Burgage was a kind of town socage.^ \\. Burgage. 
 applied to tenements in any ancient borough, held by the 
 burgesses, of the King or other lord, by fixed rents or 
 services.^ At the Conquest the cities and boroughs were 
 retained by the King as part of the demesne of the Crown, 
 but a large number were subsequently granted out to his 
 barons. This tenure, which still subsists, is subject to a 
 variety of local customs, the most remarkable of which is 
 that of Boroitgh-English, by which the burgage tenement 
 descends to the youngest instead of to the eldest son.^ 
 
 Gavelkind'^ is almost confined to the county of Kent, Gavelkind. 
 
 1 The wardship and marriage of an infant tenant of a socage estate (up to 
 the age of 14, when wardship ceased), devolved upon his nearest relation not 
 being one to whom the inheritance could descend. Conversely to the rule in 
 knight-service, the guardian in socage was strictly accountable for the rents and 
 profits ; and if he allowed his ward to marry under the age of 14, he was bound 
 to account to the ward for the value of the marriage, even though nothing had 
 been received for it, unless he had married him to advantage. Stephen, Com- 
 mentaries, i. 312 (5th ed.), 
 
 2 [On Burgage, cf Digby, Hist. Law of Real Propej'ty, p. 47, who says that *by 
 the time of Glanvill,' the 'important class of socage tenants' who held lands of 
 lords by this tenure in towns, * had obtained the distinctive name of burgage 
 tenants,' and that they ' retained in many cases local customs, especially as to 
 the descent of lands, and as to devising them by will.' — Ed.] 
 
 3 Coke upon Litt., ss. 162, 163. 
 
 ^ Littleton, s. 165 ; Third Real Property Report, p. 8. [The Manor of 
 Kennington, it is believed, affords an instance, in what is now practically a 
 London suburb, of the survival of Borough-English. — Ed.] 
 
 * Gavelkind, A.-S. gafolcund, = 'rent-yielding' land, gafol = 'rent' or 
 'customarie paiment of woorkes.' Lambarde, Perambulation of Kent [ed. 
 1826, p. 477] ; Kemble, Int. Cod. Dipl. i. Ixi. [Cf. Gavellarii, J. A\ S. A. 
 Ireland. Dublin. 1890. — Ed.] 
 
70 The Norman Conquest, [Ch- 
 
 whose inhabitants are said to haye secured this and other 
 privileges by special favour of the Conqueror.^ The lands 
 are held by suit of court and fealty, a service in its nature^ 
 certain.^ The tenant in Gavelkind retained many of the 
 properties of alodial ownership : his lands were devisable 
 by will ; in case of intestacy, they descended to all his sons 
 equally ; they were not liable to escheat for felony, the 
 maxim being 'the father to the bough, the son to the 
 plough ' ; and they could be aliened by the tenant at the 
 age of fifteen. 
 Tenure in Below Free Socage was the tenure in Villeinage^ by which 
 
 Villeinage. ^^ agricultural labourers, both free and servile, held the 
 land which was to them in lieu of money wages. The 
 terms of the tenancy varied with the local customs of 
 different manors, but it was always more or less precarious. 
 Bracton, writing under Henry III., describes two kinds of 
 tenure in Villeinage, ^^^r^ and privileged. Pure villeinage^ 
 he tells us, was the tenure by which the demesne of mesne 
 lords was held by tenants who, whether free or slave, were 
 bound to do whatever work was set them, and who * knew 
 not in the evening what was to be done in the morning. *■ 
 They were occupiers of the land at the lord's will. Privi- 
 leged villeinage, or villein socage, was the tenure by which 
 tenants of the King's demesnes held their land, on condi- 
 tion of performing base services, but certain ;*and who could 
 not be removed from the land as long as they were willing 
 and able to perform the service due. It was this kind of 
 
 ^ [Digby, Hist. Law of Real Property, p. 46, n. 3, remarks that before the 
 Conquest, gafolcund or gavelkind lands meant simply * rent-paying ' lands. 
 As to the survival of this and other customs, Digby says, ' How it was that 
 these customs survived is a question of great difficulty.' That it was the result 
 of any special favour shewn by the Conqueror to the men of Kent does not 
 seem to be capable of proof. — Ed.] 
 
 2 Wright, Tenures, 211. 
 
 3 [On Tenure in Villeinage, cf. Digby, op. cit. , p. 1 28. * The practice of 
 allowing villeins to continue to occupy their lands without interruption, and 
 even to alienate and transmit their interests to their descendants has given a 
 new sense to the word villettagium, which has now \t. Hen. HI.] come to 
 mean (i) the nature of a villein's interest in land; (2) the kind of interest 
 which a villein has, though the land may be held by a freeman.' The relative 
 excerpt, pp. 129 — 30, from Bracton, 1. iv. c. 28, should be studied. — Ed.] 
 
II.] The Norman Conquest, Ji 
 
 * privileged villeins,' or * villein socmen/ who were properly 
 termed ' glebae ascriptitii'^ 
 
 Whilst availing himself of every advantage which his The Con- 
 position as feudal lord paramount gave him over his poUcy^ ^ 
 baronage, William was careful to maintain his rig-hts, and, National 
 
 1 , 1 r ,., , ^^. 'rather than 
 
 as a rule, endeavoured to perform his duties, as King of Feudal, 
 the English; 'preferring the forms of ancient royalty to the 
 more ostentatious position of a feudal conqueror.' ^ 
 
 He continued to hold, three times a year, at the accus- National 
 tomed times and places, the ancient National Assembly, at ^nued. ° 
 which the archbishops and bishops, abbots and earls, 
 thegns, and knights attended.^ There is some evidence 
 that it even retained for a time its old constitutional name 
 of Witan.^ 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 Ct^ria Regis^ the court 
 of the King's feudal vassals. William made but few changes William's 
 in the national laws . It was their administration by foreign ^^^^" 
 officials which constituted 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 sub- 
 jects, and renewed the law of Edward the Confessor, with He renews 
 certain additions made by himself ' ad titilitatem populi Edward the 
 Angloruin' ^ In like manner Cnut, fifty-two years before, Confessor. 
 had reconciled the English and Danes at a Gemot at 
 
 1 Bracton, 1. iv. c. 28. On the personal status of the villeins and the nature 
 of the tenure by which they held their land, see infra^ ch. viii. 
 
 *^ Stubbs, Const. Hist. i. 289. 
 
 3 A. -Sax, Chron. s. a. 1087. *priwa he bser his cynehelm gelce geare. swa 
 oft swa he wses on Englalande. On Eastron he hine bser on V^inceastre. on 
 Pentecosten on Westmynstre. on Midewintre on Gleaweceastre. and psenne 
 wseron mid him ealle pa rice men ofer call Englaland. arcebiscopas. and leod- 
 biscopas. abbodas. and eorlas. pegnas. and cnihtas.' [Bodl. Laud, 636. — 
 Ed.] 
 
 "* A. -Sax. Chron. s. a. 1086, supra, p. 59. 
 
 5 Hoc quoque praecipio et volo, ut omnes habeant et teneant legem 
 Edwardi regis in terris, et in omnibus rebus, adauctis iis quae constitui ad 
 utilitatem populi Anglorum. — Statutes of Will, Conq. ; Sel. Chart. 81. 
 
72 
 
 The Norman Conquest, 
 
 [Ch. 
 
 Wager of 
 Battle. 
 
 Englishry. 
 
 Oxford, and renewed the law, of Edgar the Peaceful.^ 
 This renewal by William is the first mention of the famous 
 laws of King Edward, which Normans as well as English 
 soon learnt to demand in every reign, until Magna Charta 
 supplied them with a more substantial foundation for their 
 liberties. By the * laws of Edward ' they probably meant 
 not the laws which he had promulgated but which he had 
 observed.^ The phrase imported a demand for a mild and 
 good government as opposed to harsh and unjust innova- 
 tions. 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.^ 
 
 Normans and English were, in theory, equal before the 
 law ; but the distinction of personal law was, for some pur- 
 poses, allowed. The Normans were accustomed to the 
 wager of battle,* the English to the ordeal and compurga- 
 tion. King William allowed the man of each race to be 
 tried by the customs of his own country. But Franci- 
 genae (who would be mostly Normans) settled in Eng- 
 land previously to the Conquest were to be treated as 
 Englishmen.^ 
 
 The English frequently revenged themselves on their 
 local tyrants by assassination. To check this, William 
 ordained that the whole Hundred, within whose limits a 
 Norman should be secretly slain, should be liable to a 
 
 * Angli et Dani apud Oxenafordam de lege regis Eadgari tenenda Con- 
 cordes sunt effecti, — P'lor. Wigorn. s. a. ioi8. 
 
 2 The remark is William of Malmesbury's — Non quas tulit sed quas obser- 
 vaverit. — Hallam, Middle Ages, ii. 325, 
 
 ^ Hoveden, Chronica, ii. 218, s. a. 1070. 
 
 ^ * 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. [A monograph on Trial by 
 Combat t by George Neilson, Writer, Glasgow, published by W. Hodge & Co., 
 Glasgow, is reviewed in Notes and Queries, for March i, 1890. — Ed.] 
 
 ^ Statutes of Will. Conq. ; Select Chart. 80, 81. 
 
II.] The Norman Conquest, y^ 
 
 heavy amercement.^ 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 rela- 
 tives of the deceased.^ 'Presentments of Englishry,' as 
 they were technically termed, are recorded in the reign of 
 Richard I,^ but not later. Even so early as the reign of 
 Henry II., we are told that the two races (with the excep- 
 tion of the villeins) had become so blended, through inter- * 
 marriages, that the distinction between Norman and Eng- 
 lishman had almost entirely disappeared.* 
 
 The public peace which William established and main- Public peace 
 tained was the greatest benefit of his reign.^ 'He per- "'^'"^^'^^'^• 
 mitted 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 possibly 
 regarded as the milder punishment of mutilation.^ He 
 also, like his predecessors Ethelred and Cnut, prohibited 
 the infamous practice of selling men into foreign slavery."^ 
 
 ^ Statutes of Will. Conq. ; Dialogus de Scaccario, lib. i. c, lo : Select 
 Chart. 80, 193. 
 
 2 Bracton, 1. 3, tr. 2, c. I5> s. 7. The crime of murder {murdrum) was 
 anciently restricted to secret killing. ' Murdrum proprie dicitur mors alicujus 
 occulta, cujus interfej:tor ignoratur. Murdrum enim idem est quod absconditum 
 vel occultum.' — Dial, de Scac. lib. i, c. 10. [On Murdrum, cf. Maitland, 
 Pleas of the Crown, Gloiic. (Introd. xxix.), where the Editor remarks that, 
 in the Roll, 5 Hen. III., ' the word murder is never used to differentiate two 
 degrees of homicidal guilt, it merely means that the slayer has not been 
 caught, and that Englishry has not been presented.' Bigelow, Hist, of 
 Procedure in Eng., 1880, p. 81, speaking of the last quarter of the 12th 
 century, says ' the fine was still imposed in all cases of secret slaying, upon the 
 old presumption,' and suggests what Maitland {op. cit.) seems to prove, that 
 ' the murdrum must have been more a matter for the Eyre, after the establish- 
 ment of provincial visitations, than of the central King's Court.' — Ed.] 
 
 3 Abbrev. Placit. pp. 13, 17, 18, 19. 
 
 ■* Richard, Bishop of London and Treasurer of the Exchequer under Henry 
 II., tells us in his Dialogus de Scaccario, lib. i. x. : Sed jam cohabitantibus , 
 Anglicis et Normannis, et alterutrum uxores ducentibus vel nubentibus, sic 
 permixtae sunt nationes ut vix discerni possit hodie, de liberis loquor, quis 
 Anglicus quis Normannus sit genere ; exceptis duntaxat ascriptitiis qui villani 
 dicuntur, quibus non est liberum obstantibus dominis suis a sui status conditione 
 discedere. — Select Chart. 193. 
 
 * ' No man durst slay other man had he never so mickle evil done to the 
 other.'— [A. -S. Chron., s. a. 1087.] 
 
 6 Statutes of Will. Conq. ; Select Chart. 81. 
 
 ' Ego prohibeo ut nullus vendat hominem extra patriam super plenam 
 forisfacturam meam. — Ibid. [s. 9.] 
 
74 The Norman Conquest. [Ch. 
 
 The Forest The love of field sports amoiinted in the Conqueror to- 
 ^^^* an ungovernable passion. ' He loved the tall deer/ says the 
 
 Anglo-Saxon Chronicler, 'as if he were their father ; ' and 
 the laying waste of lypoo 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 L, 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 legislation 
 of Cnut ; but by him the right of every man to hunt on 
 his own ground was expressly recognised.^ Up to the 
 period of the Conquest, hunting was still regarded not 
 merely as a pastime but as a means of exterminating 
 noxious animals and of procuring food. Under William it 
 became a mere sport for pleasure, and the exclusive privi- 
 lege of the King and those whom he allowed to share it.^ 
 Though mitigated under Henry HI. and in succeeding 
 reigns, yet ' from this root,' says Blackstone, * afterwards 
 sprung a bastard slip known by the name of the Game 
 Law,' — a system which, down to the reign of William IV.^ 
 made it illegal for any man to take or sell game, even on 
 his own land, unless possessed of a real property qualifica- 
 tion of at least £ioo 3. year.^ 
 
 The Church. Previous to the Conquest the English Church had 
 enjoyed what has been termed * an insular and barbaric 
 independence.' The Conquest brought it into much closer 
 connexion with Rome. Foreign ecclesiastics were substi- 
 tuted 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 
 
 ^ Cnut, Secular Dooms, c. 8i. — And I will that every man be entitled 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. 
 
 2 See Freeman, Norm. Conq. vol. iv. [6ig]. 
 
 * Stephen, Commentaries, iv. 577. 
 
II.] The Norman Conquest, "j^ 
 
 through the strong centralisation 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 the haughty preten- Clr. 1076. 
 sions of Hildebrand, who in the prosecution of his scheme 
 of Ecclesiastical Feudalism, in which all kings of the earth 
 were to hold their kingdoms as fiefs of the Holy See, 
 called upon William to do fealty for the crown of England.^ 
 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 gemot of the shire or hundred, deciding all causes, 
 ecclesiastical as well as civil. One of the most important Separation 
 acts of William's reign was the separation of the Ecclesias-^^"^;/^;,^.^ 
 tical from the Civil jurisdiction of the courts of law. YIq poral courts, 
 directed that from henceforth no bishop or archdeacon 
 should hold pleas of ecclesiastical matters in the shire or 
 hundred court ; but that all such pleas should be deter- 
 mined according to the Canon and Ecclesiastical laws 
 before the Bishop, at the place which he should appoint 
 for the purpose All sheriffs and other lay persons were 
 prohibited from interfering in spiritual causes.^ 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. : — 
 
 ^ Fidelitatem facere nolui, nee volo ; quia nee ego promisi, nee ante- 
 cessores meos anteeessoribus tuis id fecisse comperio. — Epp. Lanfr. ed Giles, 
 No. 10. Montalembert, in the concluding and posthumous volume of his 
 Monks of the West (vii. 27), oddly enough refers to this incident as a refusal 
 by Hildebrand of the homage of William I. 
 
 2 See the Ordinance of William in Ancient Laws and Institutes, ed. Thorpe, 
 p. 213, and Select Chart. 81. 
 
76 The Norman ConquesL [Ch. 
 
 William's I. That no Pope should be acknowledged, or Papal 
 
 %The'Koyli letters received, in England, without the King's consent. 
 Supremacy. 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 any penalty of ecclesias- 
 tical rigour, without his permission.^ 
 
 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. 
 Judicial The Judicial organisation of the kingdom at the end of 
 
 organisation. William's reign was but slightly altered from what it had 
 been under Edward 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,^ in the court baron all the 
 free tenants of the manor,^ 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 -^eriff, or vice-comes^ now presided with 
 
 1 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, Bishop 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 ages the English Church relied 
 in her struggles with the papacy.' — Const. Hist. i. 286. 
 
 2 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 Abbot Walter of Veshand [Evesham], ' judicante et testificante omni vice- 
 comitatu,' Hemingi Chartular. p. 77 ; and between Archbishop Lanfranc and 
 Odo, Bishop of Bayeux, Text. Roff. (Hickes), p. 32. 
 
 3 Coke, Fourth Inst. 46, 268 ; Co. Litt. 58 ; Spence, Eq. Juris, i. 100. In 
 Domesday mention is made of one lord lending another some free tenants to 
 make up his court, propter placita sua tenendcu 
 
li;.] The Norman Conquest. jj 
 
 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 Regis^ Curia Regis. 
 at once the Council of the King and the Witenagemot of 
 the nation, with whose counsel and consent the King dis- 
 charged both legislative and judicial functions. The 
 immense amount of business to be transacted, the frequent Justiciar 
 absence of the King in Normandy, and his ignorance of the ^PP^^"*^ ' 
 English language, caused the appointment of a new officer 
 of the highest dignity, the Justiciar, who represented the 
 King in all matters, acted 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 Edward the 
 Confessor (the first of our kings who had a seal), was con- 
 tinued ; but he was subordinate to the Justiciar, heading 
 the King's clerks or chaplains, who performed the duties of 
 secretaries. 
 
 William was reputed to be the most opulent prince in William's 
 Christendom. His daily income is circumstantially stated ^^ ^^' 
 by Ordericus VitaHs to have been £\q6\ \os. \\d., 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.^ 
 
 ^ [After Midwinter, the King caused a great and heavy tax to be exacted 
 over all England ; that was for every hide, two and seventy pence. A. -S. Chron. 
 Bodl. Laud, 636, s. a. 1083. — Ed.] This was three times the rate of the old 
 Danegeld, which, after having been abolished by Edward the Confessor, was 
 now revived in an aggravated form and continued as a permanent, though only 
 occasional, source of revenue. Cf. Freeman, Norm. Conq. iv. 685 ; Stubbs, 
 Const. Hist. i. 279. 
 
7S 
 
 The Norman Conquest. 
 
 [Ch. 
 
 His great 
 power. 
 
 Harshness 
 of his rule. 
 
 1069. 
 
 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 had made in our constitution and laws were few 
 in number, his government was practically despotic, and 
 his administration harsh. His tyranny, says Hallam, ' dis- 
 played less of passion or insolence than of that indifference 
 about human suffering, which distinguishes a cold and far- 
 sighted statesman.' ^ It was in this spirit that to resist 
 a threatened invasion from Denmark he caused the whole 
 country between the Tyne and the Humber to be laid 
 waste, so that for some years afterwards there was not an 
 inhabited village and hardly an inhabitant left.^ 
 
 The reign of the Conqueror was on the whole bene- 
 ficial to the nation, which required welding together and 
 organising by means of a strong central government ; 
 and he himself was both a wise and, from his own stand- 
 point, a just King.^ But his stern nature and the hard- 
 ness of his rule made him an object of fear to all ranks of 
 his subjects. In the picturesque language of the Anglo- 
 Saxon Chronicler :- — ' 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 
 
 1 Middle Ages, ii. [302]. 
 
 2 Will. Malmesb. Gesta Regum, 1. iii. s. 249. 
 
 3 Gregory VII. in his Epistles (Ep. vii. 33), calls William * gemma prin 
 cipum ; ' and extols his love of justice. [Ep. iv. 18.] 
 
II.] The Norman Conquest, 79 
 
 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.' ^ 
 
 1 Anglo-Saxon Chron. pp. 189 — 191. 
 
 [Digby, Hist. Law of Real Property, 1884, devotes sect. ii. of his chap. i. to 
 the consideration of the ' effects of the Norman Conquest upon the land law of 
 England.' He warns us, p. "^t^, that * it must not be supposed that a new system 
 •of rules of law was consciously introduced and forced upon the conquered 
 race ; the new structure was owing to the political and social changes wrought 
 by the great Conquest, to the process of settlement and reorganisation under a 
 powerful ruler, who would brook no imperium in it?iperio, and to the converg- 
 •ence of two distinct streams of customary law. ' Bigelow, Hist. Proc. Eng. , 
 devotes chap. iii. to the Courts of the Norman period. As to William's 
 character, Bowden, Life of Gregory VII., Lond. 1840, taking on the whole 
 the Ecclesiastical view, says, vol. ii., p. 260, 'William had, after his conquest 
 of England, been the great restorer of religion in that then irreligious kingdom, 
 . . . and in reference to matters strictly ecclesiastical, — though he ruled these 
 with a despotic sway, of which Gregory could not approve, — his liberality to 
 •churches and monasteries was magnificent, while he was entirely free from the 
 crime of simony : ' — a singular mixture of praise and blame, hardly up to the 
 Hildebrandine * gemma principum.' — Ed.] 
 
8o 
 
 CHAPTER III. 
 
 REIGNS OF THE NORMAN AND FIRST ANGEVIN 
 KINGS. 
 
 IViltaiJi RuftiSf A.D. 1 087-1100 
 Henry I. 1100-1135 
 
 Stephen. 11 35-1 154 
 
 Henry 11. A.D. 11 54-1 189 
 Richard I. 1 1 89- 1 1 99 
 
 WILLIAM The Constitutional importance of the reign of WiLLIAM 
 J^^^^S. RuFUS consists mainly: (i) in the systematic elaboration 
 by Ranulf Flambard of the theory of the incidents of 
 Feudal tenure, and its rigid application in practice, as a fiscal 
 expedient, to ecclesiastical and lay tenants alike ; and (2) 
 in the continued struggle between the Royal and Feudal 
 powers, which^jcaused the King to throw himself upon the 
 support of the native English, and led to the ultimate 
 breaking up of the baronage of the Conquest. A despot 
 of the worst sort, William devoted himself almost en- 
 tirely 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 powerful baron, but a humble 
 and clever Court chaplain of congenial and compliant tastes, 
 Ranulf Ranulf Flambard,^ by whom the Church, the feudal vassals, 
 Flambard ^^^ |.]^g people, were all subjected to systematic oppression 
 
 ^ Ranulf is by some said to have come over to England prior to the Con- 
 quest, being supposed to be the Ranulf who occurs in Domesday, i. 51, as a 
 small landowner in Hampshire, T. R. E. He was afterwards, perhaps, in the 
 service of Maurice, Bishop of London ; and then Chaplain to William Rufus, 
 who, after a time made him Chief Justiciar. (Ord. Vital, x. 18 : Ang. Sac. i. 
 706.) [Freeman, Reign of Williain Rufus. 1882. i. 329, and App. S., says 
 that Ranulf's early history is not easy to trace, and doubts his having been 
 with Bp. Maurice (1086— 1 107), but thinks the office which he held was that 
 of Justiciar. — Ed.] 
 
Ch. III.] The Norman and first Angevin Kings. 8i 
 
 and extortion. As Justiciar, he controlled and directed the 
 whole fiscal and judicial business of the Kingdom ; and in 
 order to supply the prodigality of the master who had 
 raised him to this exalted position, he directed his inge- 
 nuity — like Empson and Dudley four centuries later ^ — to 
 turning the feudal rights of the King and the procedure 
 of the Courts of justice into instruments of pecuniary 
 extortion. The feudal incidents of relief, wardship, and 
 marriage, which, under the Conqueror, had been based on 
 true feudal principles, and, for the most part, reasonably 
 exacted, were now systematically organised as a method 
 of arbitrarily taxing the tenants-in-chief, under colour of 
 exacting a legal due.^ The system of extortion thus fixed 
 upon the tenants of the King was naturally, indeed neces- 
 sarily, extended by them to their sub-tenants, and in this 
 way all holders of land by military tenure became subject 
 to the new imposts.^ The fiefs of the Church were assimi- 
 lated by Ranulf as far as possible to lay fiefs. Bishoprics 
 and abbeys were purposely kept vacant for years together, 
 during which time the king claimed, on the analogy of the 
 wardship of a lay fief, to receive all the profits for his own 
 use ; and when at length a successor was nominated to the 
 vacant benefice, a fine was demanded equivalent at least 
 to the relief which would have been payable by a lay 
 heir.^ 
 
 The great struggle between the Royal and Feudal powers, Struggle 
 which began under the Conqueror himself in the con- RoyaTand 
 spiracy of Ralph [del Guador, Earl of Norfolk or East Feudal 
 
 powers. 
 ^ [1073.] 
 
 ^ InfrUy ch. x. 
 
 2 Supra, pp. 64 — 6. 
 
 3 The mesne tenant had a legal right to the assistance of his sub-tenants to 
 meet the feudal claims of the lord paramount. Glanvill, lib. ix. c. 8 : * Post- 
 quam vero convenerit inter dominum et haeredem tenentis sui de rationabili 
 relevio dando et recipiendo, poterit idem haeres rationabilia auxilia de homini- 
 bus suis inde exigere.' 
 
 "* Ord. Vital, viii. 8 ; ' He desired to be the heir of every one, churchman or 
 layman.' A. -Sax. Chron. s. a. iioo; Stubbs, Const. Hist. i. 300, [Freeman, 
 J^eizn of William Rufus, i. 341 , calls Ranulf Flambard the law-giver of feudalism 
 in England, and remarks upon the fact that though he had served under the 
 Conqueror, probably aiding in the Domesday survey, he was not promoted till 
 the reign of the Red King, whose views he 'thoroughly suited.' — Ed.] 
 CH. G 
 
82 Reigns of the Norman [Ch. 
 
 Anglia, and Roger of Breteuil, Earl of Hereford,^ was 
 actively carried on under Rufus. Taking advantage of the 
 claim of Duke Robert to the thrqne of England, the larger 
 part of the barons eagerly seized the opportunity of siding 
 Rebellion of with him against the King. Seven years later an attempt 
 the barons. ^^^^ 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 
 
 * [These two Earls were brothers-in-law, Ralph de Guador, or de Gael, 
 having married Emma, sister of Roger de Breteuil, for whose descent, cf. 
 Annals of Chepstow Castle, by the late John Fitchett Marsh, edited by- 
 Sir John Maclean, F.S.A. Privately printed. Exeter. W. Pollard, 1883. 
 This work includes tabular pedigrees of the Houses of Clare, Eu, Fitz- 
 osbern. Marshal, and other great Anglo-Norman baronial families, the 
 understanding of whose relationships throws no little light on the history 
 of England during the Anglo-Norman and Angevin period. The in- 
 surrection is described by Pearson, Hist. Eng. Early and Midd. Ages, i. 
 369 — 70, as arising out of the heated discussion of their grievances among the 
 wedding guests. Ralph, or Raoul, variously styled de Guador or de Gael, 
 was, as Pearson notes, loc. cit., a grand-nephew of the late king, i.e., Edward 
 the Confessor, being grandson of ' Goda Comitissa,' as she is styled in Domes- 
 day, sister of the Confessor, not, it would seem, as apparently held by Pearson, 
 op. cit., u. s., by her second husband, Walter, Count of Mantes and Pontoise, 
 who d. circa 1044 — 51, but, as Eyton holds, Dorset Domesday, p. 79, 
 n. I, by her first husband, Drogo, Count of the Vexin, who d. in Palestine 
 circa 1035. Goda's third husband was Eustace II., Count of Boulogne, but 
 Eyton distinctly states that she had no issue by the last two. Ralph, the 
 Staller of the Confessor, was Countess Goda's eldest son, the second, Walter, 
 succeeding his stepfather as Count of Mantes. George, Gen. Tables, assigns 
 only two husbands to Goda, viz., Drogo (i) and Eustace {2), but agrees with 
 Eyton in making Ralph, whom he calls Radulph, the son of Goda and 
 Drogo. — Ed.] 
 
 - [The statement in the text that Stephen was grandson of Robert II. of 
 Normandy seems to be an error for Robert I. The account given by Green, 
 Hist. Eng. People, Lond. 1878, i. 136, is extremely brief, and does not in any 
 way affiliate this rather shadowy claimant on the Royal stock, and it is some- 
 what confusing from Anglicising his name as Stephen of Albemarle. Mr. 
 Hereford B. George, in his Genealogical Tables, 1875, ^oes not mention this 
 Stephen. It appears, however, from a comparison of Tables CIV. and 
 LXXXVIII., of '&o\x\\\^\.'% Atlas (T Hist, et de Geog, Paris, 1866, that Adelaide, 
 an illegitimate daughter of Robert I. of Normandy, variously known as 
 Robert the Devil, or the Magnificent, married Eudes II., Count of Champagne 
 and of Aumale, who d. after 1063, and who is noted by Bouillet as ' tige des 
 Comtes d'Aumale.' It is clear that Stephen of Aumale was a son of this 
 marriage, and he is so given by G. E. C. in his New Peerage, in Genealogist, 
 N. S. vol. i. 1884, s. V. Albemarle, where his mother is called Adeliza : he 
 was, therefore, a descendant of the Conqueror's ancestors, but not of the 
 Conqueror himself, and the line of which the Conqueror was the stock would 
 have been set aside, while the lineage of the Conqueror would have been to a 
 certain extent retained, though only through an illegitimate channel, and all 
 connection with the old English stock would have been severed. There seems 
 to be no mention of Stephen of Aumale in the genealogical tables appended to 
 Mr. Bailey's valuable Succession to the Crown. Nor does he occur in the 
 
III.] and first Angevin Kings, 83 
 
 were unsuccessful ; and being followed by considerable 
 forfeitures, served only to bring about the decay, ulti- 
 mately the almost utter extinction, of the baronage of the 
 Conquest.! In order to maintain his ground, the King was William 11. 
 compelled to court the support of his English subjects, support of 
 who eagerly and successfully fought for him against their ^^^ ^'^S^^^^- 
 feudal oppressors. On three separate occasions — at his 
 coronation, at the outbreak of the rebellion of his Norman 
 barons almost immediately afterwards, and again in 1093, and promises 
 when ill and in fear of death — he sought to engage the ^° ^^^* 
 affections of the people by issuing Constitutional mani- 
 festoes in which he promised good laws, lighter taxation, 
 and free hunting.^ But his promises were never kept. 
 Instead of the free hunting promised, he made the capture 
 of a stag a capital offence.^ 
 
 Henry L, 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. Copies Liberties, 
 were despatched to the several counties and deposited in the 
 principal monasteries. In this Charter Henry endeavoured 
 to propitiate all classes of his subjects by abolishing the 
 malae consuetudines, the illegal exactions with which the 
 
 Royal Lineage as prefixed in tabular form to Burke's Peerage, which only 
 professes to exhibit the descent from the Conqueror. A claim, however 
 shadowy in itself, such as that of Stephen of Aumale, which would have 
 brought an entirely different House to the Throne, seems deserving of a 
 clearer statement than is to be met with' in the ordinary sources, and it has, 
 therefore, been deemed advisable to set forth here what is the present Editor's 
 conclusion as to its nature. It is curious that G. E. C, while noticing two 
 conspiracies of Stephen of Aumale against Henry L, on behalf of other 
 claimants, says nothing of his having himself been put forward as a claimant. 
 But the whole subject seems to have been involved in some obscurity, and to 
 demand more attention than it has hitherto received. — Ed.] 
 
 1 Stubbs, Const, yist. i. 294. 
 
 2 Will. Malmesb., Gesta Regum, lib. iv. § 306; Eadmer, Hist. Nov. i. pp. 
 14, 16. 
 
 ^ 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. . . . 
 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. 
 
 G 2 
 
84 
 
 Reigns of the Norman 
 
 [Ch. 
 
 (i.) The 
 Church. 
 
 (ii.) The 
 vassals. 
 
 Reliefs. 
 
 Marriages. 
 
 Dower. 
 
 Wardships. 
 
 Demesne 
 of military 
 tenants. 
 
 Testaments. 
 Intestaqr. 
 
 Fines. 
 
 clergy, the baronage, and the people generally had been 
 oppressed during the reign of the late King, (i) To 
 the Church he promised that on the death of an arch- 
 bishop, 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 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 marriage of his vassal's daughter or other female 
 relative must still be obtained, but it should be given with- 
 out payment, and should not be refused unless the intended 
 husband were 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 dowers unconditionally ; if with chil- 
 dren, so long 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, should have their 
 demesne lands free from all gilda and opera, in order that 
 they might the more efficiently equip themselves for the 
 defence of the King and kingdom. 
 
 The right of the King's vassals to bequeath their personal 
 property by will was recognised ; and in case of intestacy, 
 the deceased person's wife, children, relations, or vassals 
 legally authorised, 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 nature of the offence, as in the time of the King's 
 ' other ancestors.' Thus early had the Norman barons 
 begun to claim for themselves the benefit of the old 
 English laws. 
 
III.] and first Angevin Kings. 85 
 
 (3.) To the Nation at large the King g ranted the laws of (i"-) The 
 Edward th eConfessor with the emendations made by the 
 Conquero r with tTie'consent of his barons.^ The claims of 
 the people were also recognised in the proclamation of the 
 King's peace, and especially in the express extension to all 
 under-tenants of the benefits granted to the King's imme- 
 diate vassals. The King further promised to exact no 
 moneyage which had not been levied in the time of King 
 Edward, and to punish all coiners or utterers of base 
 money. He forgave the debts due to his late brother ; and 
 all murder-fines (murdra) up to the day of his coronation. 
 Such fines should in future be regulated by the law of 
 King Edward.^ 
 
 The only unpopular clause in the charter was that in Forests 
 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 enactment So-called 
 of Henry's reign ; for the so-called ' Laws of Henry I.,' ^f^^^^^^ 
 were compiled at a later date.^ Historically the Charter Primi. 
 records the nature and recent introduction of the illegfal Historical 
 
 -. .... ./< ,, 11-1 ^ . • 11 and Consti- 
 
 exactions which it specifically abolishes ; Constitutionally tutional 
 it is important as a formal and deliberate recognition, by a ^'???'^[f^^^ 
 practically despotic king, of the ancient and lawful freedom charter. 
 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, 
 
 * Cap. 13. Lagam Edwardi regis vobis reddo cum illis emendationibus 
 quibus pater meus emendavit consilio baronum suorum. 
 
 2 See the charter in full in Ancient Laws and Institutes, p. 215, and Select 
 Chart. 96. 
 
 ^ The so-called Leges Hetirici Primi are ' a collection 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 authoritative illustrations of the amount of national 
 custom existing in the country in the first half of the nth century, but cannot 
 be app ealed to with any confidence, except where it is borne out by other testi- 
 mony. ' — Stubbs, Select Chart. 100, 
 
36 
 
 Reigns of the Norman 
 
 [Ch. 
 
 Henry 
 courts and 
 receives 
 support of 
 the Native 
 English. 
 
 Marries a 
 niece of 
 Edgar 
 Atheling. 
 
 Triumphs 
 over the 
 rebellious 
 barons. 
 
 Raises up 
 new men. 
 
 he never hesitated to disregard its provisions. It was 
 renewed by Stephen and by Henry II. ; and under John it 
 served, in the hands of the Archbishop, Stephen^Langton, 
 a^3^text upon which the barons founded their claim fo r a 
 restoration of the ancient Hberties of the nation. 
 
 His somewhat questionable title to the throne, the con- 
 test 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 Canmore, King of 
 Scots, by Margaret, sister of Edgar Atheling, 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. Im- 
 pelled alike by national sentiment and unity of interest, 
 and encouraged by the King's promises of good govern- 
 ment, 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 power- 
 ful of whom, including Robert de Belesme, Earl of Shrews- 
 bury and Arundel, the most dangerous of them all^ were 
 expelled the kingdom with the forfeiture of their English 
 estates.^ In the end Henry acquired a plenitude 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 
 
 ^ 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, Dominoque Deo gratias age quia tu 
 libere coepisti regnare ex quo Rodbertum de Belismo vicisti et de finibus regni 
 tui expulisti." ' — Eccl. Hist. xi. 3, 
 
III.] and first Angevin Kings, %^ 
 
 number of new men, whom he placed on an equality with 
 
 the proudest of their fellow-barons.^ 
 
 During the late reign the feudal nobles appear to have Strengthens 
 
 extended their local hereditary franchises to the detriment oycounty^ 
 
 of the national courts of the shire and the hundred. Henry and Hun- 
 
 ,,..,.. ^ , . . dred Courts. 
 
 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 
 Edward. Al l suits respecting lands between tenants-in- 
 chief of the Crown were to be determined in the King's 
 court, but like suits between vassals of different mesne 
 Jords were to be heard in the County court.^ 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-government 
 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 King- 
 dom.^ 
 
 At the same time that Henry strengthened the local Royal ad- 
 courts of the shire, the hundred, and the borough, as a centralised 
 check to the feudal nobility from below, he endeavoured and systema- 
 to curb them from above by centralising and system a- 
 tising the Royal administration. Roger, bishop of Salis- 
 bury, having served as Chancellor from iioi to 1103, was 
 
 ^ Plerosque illustres pro temeritate sua de sublimi potestatis culmine prae- 
 cipitavit, et haereditario jure irrecuperabiliter spoliatos condemnavit. Alios 
 contra favorabiliter illi obsequentes de ignobili stirpe illustravit, de pulvere, ut 
 ita dicam, extulit, dataque multiplici facultate super consules et illustres, oppi- 
 danos exaltavit. — Ord. Vit. Eccl. Hist. xi. c. 2 ; Select Chart. 94. 
 
 2 See the charter in Rymer, i. 12, and in 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 : (i) 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. 
 
ss 
 
 Reigns of the Norman 
 
 LCh. 
 
 [Organisa- 
 tion of Curia 
 Regis. \ 
 
 Occasional 
 circuits of 
 the Justices. 
 
 Severity in 
 punishing 
 offences 
 against the 
 law. 
 
 appointed, in 1107, Chief Justiciar. Under his direction, 
 during his thirty-two years' tenure of this high office, the 
 administration of the Curia ^ Regis was organised 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 punishment of death for 
 offences against the Forest laws ; by Henry it was extended 
 to ordinary crimes. In the year 1124 no less than forty- 
 four thieves were hanged in Leicestershire at one time. 
 * No man,' says the Anglo-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.'^ By severe punish- 
 ments 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 officers of his court. But the expenses 
 of his foreign wars and home administration necessitated 
 the imposition of heavy and regular taxation, of which the 
 contemporary chroniclers complain in bitter terms.^ 
 
 ^ Ang.-Sax. Chron. ad ann. I135 ; Select Chart. 95. 
 
 * Non facile potest narrari miseria quam sustinuit isto tempore terra 
 
III.] and first Angevin Kings. 89 
 
 After the triumph of Henry over the feudal baronage, Question of 
 the only class in the State strong enough to offer any ^^^^ itures. 
 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 injuriously 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 im- 
 position of a limit to the Royal power. 
 
 On his coronation, Stephen issued a Charter briefly STEPHEN, 
 confirming, in general terms, to the barons and men of". I""^"^" 
 England all the liberties and good laws which his uncle charter. 
 Henry, King of the English, had granted them, as well ^s 
 all the good laws and good customs which they possessed 
 in the time of King Edward.^ 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 His second 
 drawn up and promulgated by the King. It is more defi- \^ll^^' 
 nite 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 wit- 
 nesses, 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 
 
 Anglorum propter exactiones regias. — Flor. Wigorn, s. a. 1104. See also 
 A.-Sax. Chron. stib anji. I104, 1105, mo, 1118, 1124. 
 ^ Statutes of the Realm— Charter of Liberties, p. 4. 
 
90 Reigns of the Noi^man [Ch. 
 
 the greater part of the charter devoted to concessions 
 (i.) Conces- to the Church. (i) The King promised to repress all 
 clergy. ^ simony, and to maintain the jurisdiction of the bishops 
 over all clerical persons and their possessions. Eccle- 
 siastical dignities, with their privileges and ancient cus- 
 toms, should remain inviolate. The Church should retain 
 possession of all estates which it had enjoyed by an uncon- 
 tested title at the death of the Conqueror, or which the 
 liberality of the faithful had since then conferred. 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, until a pastor be 
 (ii.) And to appointed. (2) To the people generally Stephen pro- 
 the nation, mised to maintain peace and justice in all things. All 
 exactions and extortions, wickedly introduced 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 
 The Forests, 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.^ 
 
 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 Adminis- 
 trative machinery.^ But they are important as forming 
 
 1 Statutes of the Realm— Charter of Liberties, p. 3. 
 
 2 [Bigelow, Hist. Procedure in Eng., p. 174, notes one striking exception to 
 this general breakdown. 'The clergy,' he says, 'had preserved the only 
 
III.] and first Angevin Kings. 91 
 
 another link in the chain by which the ancient liberties of 
 the nation, symbolised in the popular mind by the Laws 
 of Edward the Confessor, were handed down in unbroken 
 series to the framers of the Great Charter. 
 
 Brave, energetic, and personally popular, Stephen lacked Feudal 
 administrative ability and the art of governing men. The ^^^'^^"y- 
 barons, taking advantage of his weakness, fortified their 
 castles, and, under colour of supporting either the King or 
 the Empress, made themselves practically independent of 
 both. They claimed and exercised all the most obnoxious 
 privileges of Continental Feudalism. Quot domini cas~ 
 tellorum, says the chronicler, tot reges vel potius tyranni} 
 The King endeavoured to strengthen his position by Creation of 
 creating new Earldoms, supported by extravagant grants '^^^ ^^"^^^^ 
 from the crown-lands and the exchequer. The only 
 result was to impoverish himself and arouse the jealousy 
 of the old nobility. His justifiable but impolitic violence Arrest of the 
 towards the three bishops, Roger of Salisbury and his jJneTI' 
 nephews, Nigel of Ely and Alexander of Lincoln, secured, "SQ- 
 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 adminis- 
 tration of the government, over which Bishop Roger, as 
 Justiciar, had hitherto continued to preside.^ Even the 
 King's brother, Henry of Winchester, went over to the side 
 of the Empress. During the long period of civil war the wretched 
 condition of the people was most lamentable. Both sides condition of 
 
 ^ ^ the people. 
 
 semblance of order and good government during the turmoil of Stephen and 
 Matilda ; and it was through their power and intervention that the peace of 
 Wallingford had been effected.' The same writer suggests {loc. cit.) the pro- 
 bable influence of the clergy, aided by the then very recent teaching of the 
 Roman Civil Law by Vacarius, upon the establishment of Recognitions as a 
 permanent feature of the existing writs of Disseisin. — Ed.] 
 
 ^ 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 numismatis, et potestatem 
 subditis, regio more, dicendi juris. — Will. Newb. Hist. Angl. 1. i. 22. 
 
 2 ' The arrest of Bishop Roger was perhaps the most important constitutional 
 €vent that had taken place since the Conquest ; the whole administration 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. 
 
92 Reigns of the Norman [Cu 
 
 employed mercenary troops, principally from Flanders, 
 who behaved with the greatest insolence and barbarity. 
 * In this King's time/ says the Anglo-Saxon Chronicler, 
 ' was all dissension and evil and rapine .... Never yet 
 was there more wretchedness in the land.' ^ 
 Peace of At length, in 1153, after the death of Stephen's eldest 
 
 1153."^^ ' ^°" Eustace, a pacification was brought about at Walling- 
 ford, through the mediation of the Bishops.- 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 suc- 
 cessor on the death of Stephen. 
 Scheme of As a part of the pacification a comprehensive scheme of 
 refonn. reform was drawn up, to be carried out by both Stephen 
 and Henry, for the restoration of good government and 
 national prosperity. It included the resumption by the 
 King of the Royal rights which had been usurped by the 
 barons ;,))the restoration to the lawful owners of the estates 
 J^ of which they had been deprived by intrudets * the razing 
 of the ' adulterine,' or unlicensed, castles j; the restoration of 
 agriculture by means of a system of State subventions to 
 V the impoverished farmers! ;t\the maintenance of the rights 
 of the clergyyiothe revival of the sheriffs' jurisdiction, and 
 the appointment of impartial men to that office ,^'ithe dis- 
 bandment of the armed forces ; the banishment of the 
 foreign mercenaries ;^^^ie strict administration of justice; 
 (^15'the encouragement of commerce, and/(a reform of the 
 coinage.^ 
 Death of In less than a year from the date of the treaty, the 
 
 Stephen. ^^^^j^ ^^ Stephen, on the 25th Oct., 11 54, handed over the 
 imperfectly accomplished work of restoring order and good 
 government to Henry of Anjou. 
 
 1 A. -Sax. Chron. (ed. Ingram), pp. 364, 367. 
 
 2 Matt. Paris \Chron. Maj.y ed. Luard, ii. 191.— Ed.], s. a. 1153; Sel. 
 Chart. 112. 
 
 3 Stubbs, Const. Hist. i. 333. 
 
III.] and first Angevin Kings. 93 
 
 Henry II. succeeded to the throne, pursuant to tht henry jt. 
 treaty of Wallingford, without the faintest appearance of "^^~" ^' 
 opposition. The regularity of his succession was doubtless 
 facilitated by the great strength which his extensive 
 Continental possessions gave him.^ To the English people, 
 moreover, he was welcome as a descendant of their ancient 
 Royal house ; and throughout his reign they faithfully sup- 
 ported him in every emergency. But though claiming, 
 through his mother, to be at once Norman and English, 
 Henry was by birth and character neither Norman nor 
 English.- He was the founder of a new and foreign The Ange- 
 dynasty, the Angevin, or Plantagenet, as it was subse- ^'^" ^y^^^^^* 
 quently called,^ which was destined to rule over England 
 for a period of more than three centuries (viz., 11 54-1485). 
 Henry himself endeavoured to rule England as an English 
 king, and he was far too able and energetic ever to succumb 
 to 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 become 
 thoroughly weary of anarchy. At his coronation, or shortly 
 
 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 pro- 
 vinces 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. [For this reign see The Court, Household, and Itinerary of Henry I/.^ 
 by R. W. Eyton, M.A., 1878. For Henry II. and Louis VII., cf. Lavallee, 
 Hist, des Fran^ais, Paris, 1863, i. 337-9, who considers both Kings as equally 
 French, and regards the result as a victory for Feudal Monarchy. — Ed.] 
 
 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 them. Henry ruled over England, Normandy, and Aquitaine, 
 but he was neither English, Norman, nor Gascon.' — Ibid. 177. 
 
 3 * The Angevin family are commonly known as the Plantagenets ; but the 
 name was never used as a surname till the fifteenth century.' — Ibid. 176. 
 
94 
 
 Reigns of the Norman 
 
 [Ch. 
 
 Charter of 
 Liberties. 
 
 Establishes 
 law and 
 order. 
 
 Inquest of 
 Sheriffs. 
 1 1 70. 
 
 afterwards, he issued a Charter, briefly and in general terms 
 granting and confirming to the Church, and all earls and 
 barons, and all his men, all the liberties and free customs 
 granted by the Charter of his grandfather, King Henry, and 
 abolishing and remitting all the evil exactions which that 
 King had abolished and remitted.^ 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 im- 
 mediate model the government of his grandfather, Henry I.,, 
 he reconstructed the disorganised administrative and judicial 
 machinery of the kingdom, but with developments and inno- 
 vations which were the outcome of his own individual policy;'^ 
 His determination to prevent peculation and other abuses 
 in the administration of the Royal officials, is shown by his 
 remarkable action in 1170, when in a Great Council at 
 London he dismissed all the sheriffs of the kingdom, with 
 their bailiffs, for alleged misconduct in their office. The 
 dismissed functionaries were compelled to give pledges to 
 answer, and make compensation for, all wrongful exactions 
 proved against them, and a special Commission was issued 
 by the King with instructions to make in every county an 
 exhaustive inquisition by the oaths of all the barons,, 
 knights, freeholders, and even the villeins of such county, 
 into the receipts of the sheriff and of all persons in any way 
 accountable to the Exchequer.* 
 
 ^ Statutes of the Realm — Charter of Liberties, p. 4. 
 
 2 ['The reign of Henry IL,' says Digby, Hist. Law of Real Prop.^ p. 64,. 
 *is the starting-point of the history of modern English law, as well as of the 
 modern English Constitution.' — Ed.] 
 
 ^ ' Henry H. is the first of the three great kings who have left on the consti- 
 tution indelible marks of their own individuality. . . . 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. 
 
 ■* Ben. Abb. i. 5, Et postea fecit rex omnes homines regni sui, scilicet 
 comites, barones, milites, francos tenentes, et etiam villicanos, per singulos 
 vice-comitatus, jurare, tactis sacrosanctis evangeliis, quod verum dicerent ; 
 scilicet, quid et quantum vicecomites et ballivi eorum de eis ceperint, et quid 
 cum judicio et quid sine judicio, et pro quali forisfactura. A few only of the 
 Sheriffs were reinstated, ' et ipsi, adds the chronicler, ' postea multo cru- 
 deliores exstiterunt quam antea fuerunt.' Id.^ u. s. The comprehensive instruc- 
 
ni.] and first Afigevin Kings, 95 
 
 The aim of his policy through life appears to have been Policy of 
 the consolidation and centralisation 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 acknowledged his superiority. 
 
 The two great Constitutional results of Henry's reign were : Two great 
 (i) the reorganisation and full development of the King- ^^^^^x 
 ship as a monarchy at once feudal and national ; and (2) results of 
 
 1 . r 1 1 1 r 1 r- Henry S- 
 
 the manitenance of the legal supremacy of the State over reign, 
 the National Church. In working out his policy, the King 
 had to contend with two powerful opponents — (i) the 
 feudal baronage, whose power and privileges it was neces- 
 sary 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 Administra- 
 programme of administrative reform, which had been in- ^^^^ reforms, 
 eluded in the 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.^ With tlie aid of 
 
 tions to the Commissioners, comprised in thirteen articles, are given in SeL 
 Chart. 141, from Bodl. MS,, Rawlinson, C. 641. [It is stated in The 
 Antiquary for Nov. 1889, that a portion of the original MS. of the Inquest of 
 Sheriffs, which was not known to Bishop Stubbs to be in existence, has been 
 identified by Mr. J. H. Round, M.A.— Ed.] 
 
 ^ Rob. de Monte, s. a. 1155. Rex Henricus coepit revocare in jus pro- 
 prium urbes, castella, villas, quae ad coronam regni pertinebant, castella 
 noviter facta destruendo, et expellendo de regno maxime Flandrenses, et 
 deponendo quosdam imaginarios et pseudocomites quibus rex Stephanus omnia 
 pene ad fiscum pertinentia minus caute distribuerat. For the new 
 coinage cf. Ben. Abb. i. 263 [Henricus rex . . . fecit in Anglia novam 
 monetam fieri, . . . vetus namque moneta corrupta fuit. — Ed.], s. a, 
 1180. 
 
Assize. 
 
 96 Reigns of the Noi'man [Ch. 
 
 counsellors whose ability he had the discernment to detect,^ 
 he re-organised and extended the judicial and financial 
 Itinerant administration of the Curia Regis and Exchequer. He 
 Jus ices. renewed the provincial visitations of Itinerant Justices, 
 increased their number and assigned them regular circuits. 
 This diffusion of Royal justice over the whole kingdom was 
 The Grand a great step in its organisation. Another legal improve- 
 ment 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 by compurgation.^ The 
 principle of recognition by a jury was extended to all de- 
 scriptions of business, fiscal and legal. In conjunction with 
 the visits of the Itinerant Justices, it exercised a very impor- 
 tant influence in training the people for self-government.^ 
 
 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. After the Inquest of 1 170, instead of bestow- 
 ing 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 
 
 ^ Henry's first ministers were * the Earl of Leicester, Robert de Beaumont, 
 Archbishop Theobald, who had been firmly attached to the interests of the 
 Empress throughout the later years of the .struggle, Bishop Henry of Win- 
 chester, and Nigel of Ely who represented the family and the 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.' — Stubbs, Const. Hist. i. 449. De LuCy was succeeded as 
 Justiciar in 1180 by the great lawyer Ranulf de Glanvill. 
 
 2 [Bigelow, Hist. Procedure in Eng., p. 175, n. 2, and p. 400, w. i, on the 
 strength of Coram Rege Roll, Mich., 9 Joh., No. 33 (A. i. 40), memb. 8, 
 which he prints in full at p. 400, suggests that the Magna Assisa was ' one 
 of the reforms effected by virtue of the terms of the Peace of Wallingford.' 
 —Ed.] 
 
 ^ For a more detailed consideration of Henry's legal and administrative 
 reforms, see in/ra^ ch. v. 
 
III.] and first Angevin Kings, 92 
 
 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 Toulouse war, of 
 
 a commutation of personal military service for a money Scutage, 
 
 payment termed Scutage} "^^' 
 
 Thus, in addition to the fiscal and judicial, the military 
 administration of the kingdom was now concentrated 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 ecclesiastics under con- 
 tribution. Politically it rendered him independent of the 
 military aid of his barons in foreign warfare, in which their 
 place was supplied by hired mercenaries. At home he Assize of 
 rendered himself equally independent of the feudatories, by ugi.' 
 reviving in the Assize of Arms, an ordinance issued in i i8i, 
 the ancient fyrd^ or national militia.^ 
 
 The effect of Henry's policy was greatly to augment 
 the p£aKeiL_of_lh.e^rown. 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 Contest with 
 only partially successful. But though obliged to submit ^l^^^ 
 to personal humiliation and a seeming defeat, the principle 
 for which he hadj:ontended — the supremacy of the Royal 
 
 ^ Rob. de Monte, s. a. 1159; Gervas. Dorob. 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. 
 
 2 Ben. Abb. i. 278 ; Hoveden, ii. 261 ; Select Chart. 127, 147. 
 
 C.H. H 
 
98 
 
 Reigns of the Norman 
 
 [Ch. 
 
 jurisdiction over clergy and laymen alike — was practically, 
 
 as well as theoretically vindicated.^ 
 Constitu- The celebrated CONSTITUTIONS OF CLARENDON, six- 
 
 *Cu!reldon, ^^^^ ^" number, are in form a record and acknowledgment 
 
 1 164. 
 
 Trial of 
 clerks 
 accused of 
 crime. 
 
 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 recognition to have 
 regulated the relations of Church and State in the time of 
 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 archbishops and bishops faithfully 
 to observe them as therein defined. 
 
 The most important articles may be conveniently 
 arranged in five groups : 
 
 I. All clerks accused of any crime were to be summoned 
 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 
 hy the King's Justices to watch the proceedings ; and the 
 accused, if found guilty, should not be protected 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 jurisdic- 
 tions introduced by William the Conqueror was thus main- 
 tained.2 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 
 
 * [On the conflicts between Church and State in England under Becket and 
 Anselm, s.tt post. Appendices. — Ed.] 
 
 2 [Pearson, Hist. Eng. Early and Middle Ages, 1867, i. 495, remarks that 
 * vrhcn William I. and Lanfranc concurred in a policy which dissolved the old 
 amion of the two bodies politic (Church and State) they had unavoidably placed 
 4hem in a condition of suppressed antagonism.' — Ed.] 
 
III.] and first Angevin Kings. 99 
 
 remitted to it ; and the King's court sentenced and 
 punished the guilty. 
 
 All disputes concerning advowsons and presentations to Suits as to 
 livings, whether between laymen, or clerks, or laymen and and°presen- 
 clerks, were to be dealt with and terminated in the King's tations. 
 court (cap. i.). 
 
 The King's court should have jurisdiction over all pleas Pleas uf 
 of debt, whether involving a question of good faith (of ^ * 
 which the Church claimed exclusive cognisance) or not 
 (cap. XV.). 
 
 In disputes between laymen and clerks as to land, the Suits 
 Chief Justice should decide, by the recognition of twelve I'aymen^and 
 lawful men, whether it was held by feudal or eleemosynary clerks as to 
 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 Trials of 
 benefit of Common Law rules of evidence.^ If no one gSua/^*^ 
 should be willing, or dare, to appear as accuser against a offences. 
 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 house- Excommuni- 
 hold should be excommunicated, nor his lands put under trnants^in- 
 interdict, without the previous consent of the King, or, in chief and 
 his absence from the kingdom, of his Justiciar (cap. vii.). the King's 
 
 On the same principle, tenants of any of the King's cities, l^o^sehold. 
 castles, boroughs, or demesne manors, refusing to appear 
 when cited by the archdeacon or bishop to answer for any 
 wrong falling within his lawful jurisdiction, might be placed 
 under interdict, but not excommunicated until application 
 had first been made for the intervention of the King's chief 
 local officer (cap. x.).^ 
 
 1 Laid non debent accusari nisi per certos et legales accusatores et testes, [c. vi.] 
 
 2 [It is difficult to see what object was gained to the State by the distinction 
 in cap. X. , interdict and excommunication being equally ecclesiastical censures. 
 That which struck the greater number, and among them probably the more 
 innocent, viz. , interdict, is allowed, while the KLing's personal sense of dignity 
 
 H 2 
 
lOO 
 
 Reigns of the Norman 
 
 [Ch. 
 
 King to 
 have custody 
 of vacant 
 sees, etc. 
 
 Mode of 
 election to 
 bishoprics 
 and abba- 
 cies. 
 
 Homage and 
 fealty of 
 incumbent 
 elect. 
 
 Baronial 
 duties of the 
 prelates and 
 other clergy 
 holding in 
 capite. 
 
 Clergy not 
 to quit the 
 realm with- 
 out the 
 King's 
 licence. 
 
 Ecclesiasti- 
 cal appeals 
 not to go 
 further than 
 the arch- 
 bishop with- 
 out the 
 King's 
 consent. 
 
 Ordination 
 of villeins. 
 
 3. The custody of vacant archbishoprics, bishoprics, 
 abbeys, and priories of Royal foundation, should be in the 
 King's hand, and their revenues paid to him. 
 
 Election of a new incumbent should take place, in 
 obedience to the King's writ, by the chief clergy of the 
 church, assembled in the King's chapel, with the assent~b!^ 
 the King, and with the advice of such beneficed clergymen 
 as the King might summon for the purpose. 
 
 Before consecration, the incumbent elect should do 
 homage and fealty to the King as his liege lord, of life, 
 limb, and earthly honour, saving the rights of his order 
 (cap. xii.). 
 
 Archbishops, bishops, and all the beneficed clergy of the 
 kingdom, holding of the King in capite^ should answer for 
 their baronies to the King's justices and ofificers, and 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 
 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 tc 
 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 archbishop's court 
 and not proceed further {i.e. to the Pope), without the 
 King's assent (cap. viii.). 
 
 5. Lastly, the sons of villeins (rusticoruni) were not to be 
 admitted to orders without the assent of the lord on whose 
 land they were born (cap. xvi.).^ 
 
 is saved by the prohibition of the personal censure of excommunication of the 
 tenants of Royal cities and manors. — Ed.] 
 
 * See the Latin Text of the Constitutions in Lyttelton's Life of Henry H., 
 iv. 182—185, and in Select Chart. 131—134. 
 
III.] and first Angevin Kings. lol ' 
 
 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 mediseval 
 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 only 
 through the portals of the Church that the low-born and 
 landless man, however great his intellectual 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 ii 66; and more than two hundred 
 years afterwards, in the fifteenth year of Richard II., we 
 find the Commons 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 for the 
 honour of the freemen of the kingdom.' Under Richard II. 
 it is not so much the feudal and proprietary as the anti- 
 democratic and caste feeling which is manifested.^ 
 
 The reign of RICHARD I. belongs not so much to the richardi. 
 history of England as to the history of Christendom. He ii89-ii99- 
 was the ' creation and impersonation of his own age,' ^ 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 ^^"S- 
 spent in England in 1194 after his release' from captivity, 
 
 1 Rot. Pari. 15 Rich. II. 294; Hallam, Middle Ages, iii. 181. [Pearson, 
 Hist. Eng. Early and Middle Ages^ i. 499, argues strongly against c. xvi. as 
 ' shutting out the poor from their one refuge upon earth. ' M. Esmein, Rev. 
 Gen. dti Droit, 1885, p. 301, seq., cites the canons of the Council of Orleans, 
 538, against the ordination of serfs not previously freed. An earlier Council 
 of Orleans, 511, convoked by Clovis, had decreed that a bishop ordaining serfs 
 without the consent of their lord should pay him an indemnity, but that the serfs 
 so ordained should remain ordained. Guizot, Civ. en France, iii. 305. — Ed.] 
 
 2 Stubbs, Itinerarium Ricardi Primi^ Rolls Series [Int. xi.]. 
 
I02 
 
 Reigns of the Norman 
 
 [Ch. 
 
 Excessive 
 taxation. 
 
 Ways of 
 
 raising 
 money. 
 
 Popular 
 rising under 
 William 
 with the 
 Beard, or 
 Fitz-Osbert. 
 
 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 continental possessions, and 
 a profitable source of revenue. It was the strong adminis- 
 trative system established under his father, by which the 
 power of the Crown was so largely augmented, that ren- 
 dered it possible for Richard thus to govern as an absentee 
 king. To support his expedition to Palestine, to pay his 
 ransom from captivity, and to carry on his wars in France, 
 every known source of taxation was exhausted. Public 
 offices and dignities were openly sold to the highest 
 bidder; 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 ii 88, was laid under a heavy 
 impost ; the gold and silver of the churches were seized ; 
 and the Cistercian monks compelled to compound for all 
 their wool.^ These systematic and oppressive exactions 
 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.' ^ The only real 
 
 1 Et omnia erant ei venalia, scilicet potestates, dominationes, comitatus, 
 vicecomitatus, castella, villse, praedia, et cetera iis similia. Bened. Abb. ii. 
 90. For the various modes of taxation, see Rog. Hoveden, iii. 210, 240, s. a, 
 1 193 — 4; Select Chart. 243, 244, 246. 
 
 2 Rog. Hoveden, iv. 5, s. a. 1196. 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 pauperum advocatus, volens quod unusquisque tam 
 dives quam pauper secundum mobilia et facultates suas daret ad universa civi- 
 
III.] and first Angevin Kings. 105 
 
 opposition proceeded from the clergy. In 1 198 the regular Constitu- 
 clergy refused to pay the^amcage. or tax of five shillings 5)°^^^ ^\\i't: 
 imposed on each carucate (or hundred acres) of land. The clergy: 
 King immediately issued a proclamation directing that on 
 the one hand no layman should be liable to make satisfac- 
 tion for an injury committed against a clerk, and, on the 
 other, that every clerk injuring a layman should be forth- 
 with compelled to give redress.^ This amounted to virtual 
 outlawry, and the monastic clergy 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 service within 
 the kingdom only and not abroad.^ The opposition was [successful],, 
 successful ; the King's demand was withdrawn : and shortly 
 afterwards the Justiciar resigned.^ 
 
 During the all but continuous absence of Richard, the Administra- 
 tion of 
 
 — — Richard's 
 
 four succe&~ 
 tatis negotia. The talliage was assessed as a poll-tax equally on all the sive Justi- 
 citizens rich and poor. Fitz-Osbert wished it to be assessed in proportion to the ciars. 
 property of each citizen. 
 
 1 Rog. Hoveden, iv. 66 ; Select Chart. 250. 
 
 - 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 natal e solum repedate, et eremum more solito incolere, quam hie 
 pontificatum gerere et ecclesiam mihi commissam, antiquas immunitates per- 
 dendo, insolitis angariis subjugare. — Vita Magna S. Hugonis, p. 248; Select 
 Chart. 247. 
 
 •^ * 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 modern 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 H.'s wishes with reference to the Danegeld 
 in 1 163. This was the commencement of the quarrel between the King and 
 the Archbishop ; and as ' Danegeld 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. 
 
I04 Reigns of the Norman [Ch. 
 
 (i.) Long- administration of the kingdom was carried on by four 
 successive Justiciars who acted as viceroys, (i) William 
 V Longc hamp, Bishop of Ely, a Norman of [servile] 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 
 Hisdeposi- government. The struggle ended in the deposition of 
 tion, 1 191. 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 appoint- 
 ment to the office of Justiciar, to be produced only if 
 circumstances should require it.^ This proceeding has 
 been characterised as ' the earliest authority for a leading 
 principle of our constitution, the responsibility of ministers 
 to Parliament' ^ But this 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 irregu- 
 larly constituted 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 
 (ii.) William claim and obtain. (2) The assembly which deposed Long- 
 of Cou- champ recognised the Archbishop of Rouen as his successor. 
 At the close of the year 1193, the Archbishop of Rouen 
 (iii.) Hubert gave place to (3) Hubert Walter, Archbishop of Canterbury, 
 Walter. ^^^ ^ nephew of the celebrated Ranulf de Glanvill ; and 
 on the resignation of Hubert Walter in 1198, Geoffrey 
 (iv.) Geoffrey Fitz-Peter, Earl of Essex, the fourth and last of Richard's 
 Fitz-Peter. Justiciars, entered into office. 
 
 Under the rule of each of the Justiciars, but more espe- 
 cially of Hubert Walter and his successor, Geoffrey Fitz- 
 
 ^ Bened. Abb. [si cancellarius stultum quid fecerit quod esset in detri- 
 mentuin regis et regni. — Ed.] ii. 213, s. a. 1191 ; Sel. Chart. 244. 
 2 Hallam, Middle Ages, ii. [322]. 
 
III.] and first Angevin Kings, 105 
 
 Peter, the administrative system established by Henry II. 
 was maintained and considerably developed. By the exten- 
 sive application of the principle of representation to the 
 assessment of the taxes on both real and personal property, 
 the people were gradually educated for self-government. 
 In the year 1194, the principle of election in the appoint- Election of 
 ment of County officers was introduced. Coroners, three c^oroners. 
 knights and a clergyman, were ordered to be elected in 
 every county, to hold pleas of the Crown.^ The advance charters 
 made by the boroughs towards independence, through the ^^^"^^1^° 
 charters which, as a means of raising money, were exten- 
 sively 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 electing the town-reeve.^ On the occasion of Long- 
 champ's 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 ^ com- 
 munal the exact meaning of which is not quite clear, but 
 which was certainly a near approach to what is understood 
 by a * corporation.' '^ In connexion, doubtless, with this 
 establishment of the communa^ the Mayor now appears for 
 the first, time. 
 
 ^ Praeterea in quolibet comitatu eligantur tres milites et unus clericus cus- 
 todes placitorum coronae. — Capitula placitorum Coronae Regis, cap. 20 ; Select 
 Chart. 252. 
 
 2 Has praedictas consuetudines eis concessimus, et omnes alias libertates 
 et liberas consuetudines quas habuerunt vel habent cives nostri Londoniarum 
 quando meliores vel liberiores habuerint, secundum libertates Londoniarum et 
 leges civilatis 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, 1194, in Rymer, i. 52, and Select Chart. 258. 
 
 ^ Eened. Abb. ii. 214, s. a. 1191 ; Select Chart. 244. No boroughs were 
 incorporated as municipal corporations, in the modern sense of the term, till 
 the reign of Henry VI. — Merewether & Stephens on Boroughs, vol. i., Introd. 
 \Co7Jimuna is another form of Coniirmnitas, and is the origin of the French 
 word Commune. Guizot translates Conununitas by Commune, in his Civilisation 
 en France. The words of Benedictus Abbas, loc. cit. , Johannes comes . . . et 
 archiepiscopus Rothomagensis et omnes episcopi, comites et barones regni qui 
 aderant, concesserunt civibus Londoniarum communam suan^, read as though 
 relating to a grant rather than a confirmation, and this may have been 
 its formal aspect. — Ed.] 
 
io6 Reigns of Norman and Angevin Kings. [Ch. hi.. 
 
 Summary. On the whole, the reign of Richard, through no merit 
 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 
 taxation vv-as levied with the appearance of kgal 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 unaccustomed. 
 The fusion of the two races, nearly accomplished 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. 
 
I07 
 
 CHAPTER IV. 
 
 MAGNA CHARTA. 
 
 Three great political documents, in the nature of funda- The three 
 mental compacts between the Crown and the Nation, stand mental 
 out as prominent landmarks in Ens^lish Constitutional ^°"^P^^^^ , 
 
 ^ ^ between the 
 
 history. Magna Charta, the Petition of Right, and the Bill Crown and 
 
 of Rights, constitute, in the words of Lord Chatham, ' the *^^ ^^^'°'' ' 
 
 Bible of the English Constitution.' In each of these docu- charta, 
 
 ments, whether it be of the 13th or of the 17th century, is S^^^,^^°"?/, 
 , , , , , Right, Bill 
 
 observable the common characteristic of professing to in- of Rights. 
 
 troduce 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 innova- 
 tions upon the ancient liberties of the people. In its prac- 
 tical combination of conservative instincts with liberal 
 aspirations, in its power of progressive development and 
 self-adaptation to the changing political and social wants of 
 each successive generation, have always lain the peculiar 
 excellence, and at the same time the surest safeguard, of 
 our Constitution.^ 
 
 The Great Charter of Liberties was the outcome of a The Great 
 movement of all the freemen of the realm, led by their act^ofThe^ 
 
 whole people 
 ■ : under the 
 
 ^ '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 modifi- 
 cations. 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 dis- 
 turbed.' — Palgrave, Eng. Commonwealth, i. 6. 
 
io8 Magna Chart a. [Ch. 
 
 leadership natural leaders the barons.^ Far from being a * mere piece 
 barons. °^ ^^^^^ legislation,' extorted by the barons alone for their 
 Unselfish- own special interests, it is in itself a noble and remarkable 
 barons. proof of the sympathy and union then existing between the 
 aristocracy and all classes of the commonalty. 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 expressly 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 
 included by the barons themselves in the articles presented 
 to John as a summary of their demands.^ 
 The Charter The eminently moderate, practical, and conservative 
 character of the barons' demands is especially noticeable. 
 
 a treaty of 
 
 between the Magna Charta was in fact a treaty of peace between the 
 people in King and his people in arms ; yet their ancient rights and 
 
 arms. 
 
 liberties, the acknowledgment of which had been extorted 
 from the King, were expressed to flow from his grant. 
 Its mode- There is nothing theoretical or revolutionary in the Char- 
 rate, practi- i-gj. . no declaration of abstract principles of government, 
 conservative but merely a practical assertion of rights as between the 
 
 character. 
 
 ^ [Stubbs, Const. Hist. i. 532, calls the Great Charter ' the first great public 
 act of the nation after it has realised its own identity.' M. Glasson, Hist, du 
 Dr. et des Inst, de VAngl.y iii. 52, says, 'la Grande Charte est un Contrat, 
 niais qui se rapproche du traite passe entre deux nations,' and M. Boutmy, 
 Les Sources de la Const. Angl., in Nouv. Rev. Hist, de Droit Fr. et Etr.^ for 
 1878, calls it a * pacte ; ' not exactly a treaty (traite), because not made 
 between two sovereign powers or two nations ; nor yet a statute (loi), because 
 then it would bear the note of irregularity or force ; but a compromise (com- 
 promis ou pacte). In so far as it resembles anything in French history, 
 M. Boutmy likens it to the Treaty of Amboise, the Peace of St. Germain, 
 and all those conventions during the French wars of religion, which gave 
 guarantees to the Huguenot party, and almost made of them ' a nation within 
 the nation.' — Ed.] 
 
 2 Articles of the Barons, c. 48, Blackstone's Charters, pp. i — 9, and Select 
 Chart, p. 286 ; Magna Charta, c. 60, infra, p. 127 ; Stubbs, Const. Hist, 
 i. 530. [M. Glasson {ubi supra) draws attention to the strongly practical 
 character of Magna Charta, and says that every article gives proof of an 
 intimate acquaintance with the administration of the State, and with the evils 
 of which the nation had to complain, as well ag with the remedies which 
 needed to be appHed. — Ed.] 
 
IV.] Magna Charta, 109 
 
 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 expressed in terms of authority, not of 
 argument, yet commonly 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 in- 
 tended. 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.' ^ 
 
 Sir Edward Coke has remarked that the Charter was for it is based 
 the most part ' declaratory of the principal grounds of the charter of 
 fundamental laws of England.' - It was in fact founded on Henry I. 
 
 1 T 1 1 ^, /- x-r -w ., and the law 
 
 precedent. Its bases were the Charter of Henry I., and of Edward 
 the law as administered in the time of good King Edward. ?^ ^^^' 
 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 the Archbishop, Stephen Langton, in 1 2 1 3, formed 
 the groundwork, of their demands. In this way the Great 
 Charter may be regarded as the lineal representative of 
 the laws of King Edward, which from this time ceased to 
 form the popular cry of good government.'^ 
 
 The importance of Magna Charta can hardly be ex- The key- 
 aggerated. It has been well characterised by Hallam as !j°"^ °^ 
 the 'key-stone of English liberty,' to which all that has liberty, 
 since been added is ' little more than confirmation or com- 
 mentary.' And Sir James Mackintosh has insisted upon 
 
 1 Sir J. Mackintosh, Hist, of Eng. i. 220—21. 
 
 2 Coke, 2nd Inst. Proeme. 
 
 •* According to Matthew Paris [Chron. Maj., ed. Luard, ii. 552. — Ed.], 
 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 Edward : ' Audistis, 
 inquit, quomodo tempore quo apud Wintoniam regem absolvi, ipsum jurare 
 compulerim quod leges iniquas destrueret, et leges bonas, videlicet leges regis 
 Eadwardi, revocaret et in regno faceret ab omnibus observari. Inventa est 
 quoque nunc carta quaedam Henrici primi regis Angliae, per quara, si 
 volueritis, libertates diu amissas poteritis ad statum pristinum revocare. ' 
 
no 
 
 Magna Charta. 
 
 [Ch. 
 
 Events of 
 John's reign 
 which led to 
 the granting 
 of the 
 •Charter. 
 
 Separation 
 of Nor- 
 mandy from 
 England, 
 1203. 
 
 Decay of 
 Peudalism. 
 
 the noticeable fact that the consequences of its principles 
 were but slowly and gradually evolved, as circumstances 
 required, during the five succeeding centuries.^ 
 
 Several causes worked together to bring about the state 
 of affairs which compelled John to grant the Great 
 Charter. Foremost among these was the fortunate loss 
 of Normandy.^ The barons, confined within the limits of 
 England, concentrated their attention upon its affairs. 
 They became thoroughly English in interests and sym- 
 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 H. These were far 
 less closely connected with Normandy than the baronage 
 of the Conquest, and their sympathies were National rather 
 than Feudal. 
 
 The loss of Normandy was itself in a great measure 
 due to the decay of Feudalism, the result of Henry H.'s 
 policy. John, who was not altogether destitute of energy 
 
 1 Mackintosh, Hist. Eng. i. 221. 
 
 2 ' 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 salvation 
 
 John was driven from Normandy. The Norman nobles were compelled to 
 make their election between the island and the continent. 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 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 depen- 
 dency, to the English crown. [In a Paper on the Laws^ Constitutions, and 
 Language of the Channel Islands, recently read before the Royal Society of 
 Literature, by Mr. W. W. Marshall, B.C.L., the Islands were considered to 
 be a semi-sovereign state. Their position, in fact, resembles that of the Isle of 
 Man at the present day, and of the Orkney and Shetland Islands under their 
 Norse, and, to a lesser degree, under their Scottish Earls. — Ed.] 
 
 3 [Green, Hist, of the English People, 1878, i. 198, says, ' It was with a new 
 English people that John found himself face to face,' and also points out how 
 the rise of the Universities was synchronous with this welding together of 
 hitherto jarring elements, which produced a nation * quickened with a new 
 life and throbbing with a new energy.'— Ed.] 
 
2V.] Magna Chart a, ill 
 
 and courage, made some efforts to recover Normandy, 
 but the barons, especially in the north of England, where The barons 
 the possessions of the new families chiefly lay, refused to J^Jj^^^ ^° 
 follow the King, alleging that they were not bound to King on 
 ■military service abroad. service 
 
 Intimately connected with this refusal, and with the Effects of 
 ■exaction of the Charter was the personal character of the ^^^ King's 
 
 personal 
 
 King, which inspired utter distrust and aversion in all character, 
 ^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 
 liad become accustomed to the rule of Law ; John set at 
 defiance all laws, human and divine.^ Supported in his 
 tyranny by bands of foreign mercenaries, he not only taxed 
 and fined his subjects of every degree with an open dis- 
 regard of all legal restraints,^ but was guilty of acts of 
 cruelty rivalling those of Nero.^ The Church, the baronage church, 
 -and the people, united by common oppression in a com- baronage, 
 mon hatred of the tyrant, were compelled to make a stand united 
 .not so much for Constitutional government as for personal ^^^^^ ^^ 
 liberty. 
 
 In his struggle with the Papacy, arising out of the dis- Struggle 
 puted election of a successor to Hubert Walter in the p^^^^c^^ 
 -archiepiscopal see 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, 
 
 1 Quosdam absque judicio parium suorum exhaeredebat, nonnullus niorte 
 «durissima condemnabat. Uxores filiasque eorum violabat ; et ita pro lege ei 
 •erat tyrannica voluntas. — Annal. Waverl. (ed. Luard), p. 282. 
 
 2 S.a. 1205. Rex cepit de comitibus, baronibus, militibus, et viris religiosis 
 J)ecuniam infinitam. — Matt. Paris \^Chron. MaJ., ed. Luard, ii. 490. — Ed.], 
 s.a. 1 2 10. Inaestimabilem et tncomparadilem fecit pecnmaennmeTa.ta.e exactzonemf 
 
 nullis viris clericis vel laicis, nulli religion! cujuscunque ordinis parcens. — Ann. 
 
 Waverl., p. 264. 
 
 3 See his treatment of Matilda, the wife of William de Braose, and of their 
 •son and daughter-in-law, in Matt. Paris [Ckron. Ma/.'] (ed. Luard), ii. [531], 
 Roger of Wendover, Chron. iii. 235, and Ann. Waverl. p. 265 ; and of 
 Geoffrey of Norwich [called by Paris his faithful and prudent clerk, who, in 
 castro de Notingham poena excogitata usque mortem torquetur]. (Matt. Paris 
 \%_Chron. Maj. ed. Luard], ii. [537]). 
 
112 
 
 Magna Charta, 
 
 [Ch. 
 
 Ecclesiasti- 
 cal elections 
 only nomi- 
 nally free. 
 
 Double 
 election to 
 the see of 
 Canterbury. 
 
 Pope Inno- 
 cent III. 
 sets both 
 elections 
 aside and 
 consecrates 
 Stephen 
 Langton. 
 
 John 
 refuses to 
 receive the 
 Pope's 
 nominee. 
 
 The Inter- 
 dict. 
 
 freedom of election to the higher ecclesiastical benefices, 
 however it might accord with canonical requirements, had 
 never been practically recognised by the English kings. 
 Prior to the Norman Conquest, the appointments had been 
 made in the Witenagemot, and afterwards by the King in 
 the Curia Regis or Great Council of the Realm. The 
 political power of the Bishops, of the Archbishop of Can- 
 terbury especially, was so great in early and mediaeval 
 times, that it would seem to have been a State necessity 
 that their nomination should rest with the supreme Civil 
 authority. Although the form of election was conceded' 
 by Henry I., the process, under what was subsequently 
 termed a cong^ d'elire, was free only in name. 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 monastic chapter of Christ Church, Canterbury, at- 
 tempted to assert their right of election, and chose their 
 sub-prior. In the meantime the 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 nominated Stephen Langton, an English- 
 man of the highest character and great reputation for 
 learning.^ In this proceeding the Pope distinctly infringed 
 upon the rights of the King, of the Chapter of Canterbury, 
 and of the English nation ; but fortunately for the [realm], 
 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 
 Langton as Archbishop. The Pope then (1208) placed the 
 kingdom under Interdict (which suspended the 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 
 
 "^ The claim of the bishops to share in the election of the archbishops was 
 enforced on several occasions during the I2th century, but after its rejection by 
 Innocent III. was never advanced again. Stubbs, Const. Hist. iii. 305. 
 
IV.] Magna Charta. 113 
 
 formally excommunicated (1209), and ultimately (in 12 12) Excommu- 
 
 j J nication. 
 
 deposed. ^ 
 
 Deposition. 
 
 Threatened by Philip of France, whom the Pope had jo^n 
 empowered and directed to take possession of the for- submits, 
 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 [envoy], Surrenders 
 receiving it back as a fief of the Holy See, subject to the ^'1^?^ 
 annual tribute of one thousand marks.^ A few months ^^y 15, 
 afterwards, the act of submission was renewed to Nicholas, 
 Bishop of Tusculum, with the actual performance of liege 
 homage on the part of the King.^ This submission was 
 undoubtedly a disgrace, although not quite to the same 
 extent as it would be now. It was, however, a startling 
 faUing off from the position which Henry H. 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 indepen- 
 dence of the Kingdom completed the alienation of the 
 people from the King, whose misgovernment had brought 
 on this national humiliation. On the other hand, the Pope 
 now, having secured submission, changed his tactics, and 
 supported the tyranny of his vassal. The barons deter- The struggle 
 mined upon resistance, and the National Church, headed ,^^'^ ^^^ 
 
 barons. 
 
 ^ See the concession of the kingdom to the Pope, and the form of oath of 
 fealty in Rymer, i. iii, and Select Chart. 276. The 1000 marks were appor- 
 tioned, 700 for England and 300 for Ireland. [Similar homage, but even 
 more striking in its accompaniments, had been done, in 1204, by Peter of 
 Arragon for the Kingdom of Arragon, as recorded in De Cherrier, Hist, de 
 la Lutte des Papes et des Evipereurs, ii. p. 528, Pieces Justif., i. Peter was 
 first anointed and crowned at S. Pancrazio in Trastevere, by Innocent III., and 
 then went to St. Peter's, and laid down his crown and kingdom at the shrine 
 of the Apostles, as an offering to the Pope and the Roman Church, and by 
 charter, deposited on the High Altar, confirmed the said offering, and laid a 
 yearly tax on his kingdom of 250 ' massunetines ' for ever. In Peter's case a 
 double homage was rendered, the first at the coronation, and the second at 
 the solemn oblation at St. Peter's. Homage was done for Man, 1219. — Ed.] 
 
 2 Ann. Waverl. 277, 278 ; Select Chart. 269. 
 
114 
 
 Magna Charta, 
 
 [Ch. 
 
 It began in 
 July, 1213, 
 by their 
 refusing 
 foreign 
 service. 
 
 Councils at 
 St. Alban's 
 Aug. 4 ; and 
 at St. Paul's 
 Aug. 25. 
 
 Charter of 
 Henry I. 
 produced. 
 
 Importance 
 of the 
 Council of 
 St. Alban's 
 as the first 
 national re- 
 presentative 
 assembly. 
 
 by Archbishop Langton, gave the weight of its influence 
 to the patriotic side. 
 
 It may be convenient briefly to notice the most im- 
 portant events which immediately led up to the grant of 
 the Charter.^ The open quarrel with the barons began 
 in July, 121 3, with the refusal of the northern nobility 
 to follow John to France. While the King was vowing 
 vengeance against his recalcitrant vassals, two important 
 Councils of the Bishops and Barons were held, the first 
 at St. Alban's, on August 4th, the second at St. Paul's, 
 London, on August 25th. They were summoned osten- 
 sibly for the purpose of assessing the compensation pro- 
 mised to the Church ; but the Justiciar, Geoffrey Fitz- 
 Peter, and Archbishop Langton seized the opportunity 
 of introducing a discussion on the King's general mis- 
 government. The half-forgotten charter of Henry I., having 
 been referred to generally at St. Alban's as the 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 of 
 its own, as the first historical instance of the summons of 
 representatives to a National Council. It was attended not 
 only by the Bishops and Barons, but by the representative 
 reeve and four men from each township on the Royal de- 
 mesne. It is something more than a mere coincidence 
 that to this National Council, in which the element of direct 
 representation of the people, long familiar in the folkmoot 
 of the shire, appears for the first time, were presented the 
 first outlines of the reforms subsequently elaborated in the 
 Articles of the Barons, and promulgated in the Great 
 Charter.^ 
 
 1 For a more detailed statement, see Blackstone, Int. to the Charters, and 
 Stubbs, Const. Hist. i. 524—530. 
 
 2 Stubbs, Const. Hist. i. 527. * The action of this council is the first hesi- 
 tating 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. ' 
 
IV.] Magna Chart a. 115 
 
 During the greater part of the year 12 14, John was absent 1214, the 
 on the Continent, whence he returned in October. In the abroid°m 
 meantime, the barons met at Bury St. Edmund's, and entered October. 
 into a confederacy, binding them, if the King would not Confederacy 
 acknowledge the rights which they claimed, to withdraw \^ Bury^S°"^ 
 their fealty and make war upon him until by a sealed Edmund's. 
 charter he should confirm the laws and liberties of the 
 people.^ 
 
 On January 6th, 121 5, the barons in arms presented their They pre- 
 demands to the King at the Temple, and, at his urgent demandrto 
 request, conceded a respite until after Easter, in order that ^^^ JS^"g ^^ 
 
 , , , . - . 1 . o the Temple, 
 
 he might have time for consideration.^ Jan. 6, 1215. 
 
 In this interval John did all he could to break up the John at- 
 combination against him. He granted a separate charter brTak^up the 
 to the Church,^ ^ivins: freedom of election of bishops and combination 
 
 , - , 1 -r^ 1 • . -, agamsthim; 
 
 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 but without 
 
 party continued firm and united. The barons, strengthened ^"^^^^^• 
 
 by numerous adhesions since the Councils of St. Alban's assemble in 
 
 and St. Paul's, assembled in arms at Stamford ; and when ^™^,^^' 
 1 / • 1 1 • 1 • 1 r Stamford 
 
 the stipulated time had expired without an answer from and march 
 
 the King, marched under the leadership of Robert pftz- ^^ London. 
 Walter, 'Marshal of the army of God and of the Holy 
 Church in England,' to Brackley, in Northamptonshire. 
 
 ^ Itaque convenerunt universi [comites et barones Angliae] ad ecclesiam 
 Sancti Eadmundi, ct incipientibus majoribus juraverunt super majus altare, 
 quod si rex leges et libertates jam dictas concedere diffugeret, ipsi ei werram 
 tam diu moverent ut ab ejus fidelitate se subtraherent, donee eis [per] cartam 
 sigillo suo munitam confirmaret omnia quae petebant. Matt. Paris \_Chron. 
 Maj'., ed. Luard, ii. 583]. 
 
 2 Deinde cum festinatione [rex] Londonias veniens, apud Novum Templum 
 hospitio sese recepit. Venientesque ad regem ibi supradicti magnates, in las- 
 civo satis apparatu militari, petierunt quasdam libertates et leges regis 
 Eadwardi cum aliis libertatibus, sibi et regno Angliae et ecclesiae Anglicanae 
 concessis, confirmari, prout in carta regis Henrici primi et legibus praedictis 
 asscriptae continentur , . Audiens autem rex . , postulabat inducias usque ad 
 clausum Pascha. Matt. Paris {Chron. Maj., ed. Luard. ii. 584]. 
 
 2 First granted Nov. 21st, 1214; re-issued Jan. 21st following. 
 
 I 2 
 
ii6 
 
 Magna Charta, 
 
 [Ch. 
 
 The support 
 of the 
 Londoners 
 decides the 
 contest. 
 
 John, de- 
 serted by all 
 but a few 
 personal 
 adherents, 
 grants the 
 Charter. 
 
 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 unim- 
 portant, 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 house- 
 hold.i 
 
 Deserted by all but a few personal adherents, chiefly of 
 foreign extraction, and utterly incapable of further resist- 
 ance, John accepted the articles of the Barons, which were 
 embodied in the Great Charter at Runnymede, on the 
 15th of June, 12 1 5. 
 
 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 conveniently 
 grouped and summarised as follows : 
 
 The following text of John's Charter in the original 
 Latin accords with the copy in Stubbs' Select Charters 
 (pp. 288-297), except that the clauses and sentences omitted 
 in Henry III.'s re-issues have been placed within brackets. 
 
 [Johannes Dei gratia Rex Angliae, Dominus Hyberniae, 
 Dux Normanniae et Aquitanniae, Comes Andegaviae, archie- 
 piscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, 
 forestariis, vicecomitibus, praepositis, 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 vene- 
 rabilium patrum nostrorum, Stephani Cantuariensis archie- 
 piscopi totius Angliae primatis et sanctae Romanae ecclesiae 
 
 ^ Blackstone, Introduction to the Charters. 
 
IV.] Magna CJiarta. 117 
 
 Commencing with the declaration that the Church of Clause i. 
 England shall be free ( ' quod Anglicana ecclesia libera sit ' ) the Church, 
 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 : / 
 
 I. — Feudal Obligations. 
 
 2, 3. The heir (if of age) shall pay only * the ancient Reheis, 
 relief — viz., in the case of an earl or baron, 100/.; of a 
 knight, lOOi-. ; 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. 
 
 cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Lon- 
 doniensis^ Petri Wintoniensis^ Joscelini Bathofiiensis et Glas- 
 toniensis, Hugonis Lincohiiensis, Walteri Wygornensis^ Wil- 
 lelmi Coventrensis, et Benedicii Roffensis episcoporum ; 
 magistri Pandulfi domini papae subdiaconi et familiaris, 
 fratris Eymerici magistri militiae templi in Anglia ; et nobilium 
 virorum, Willelmi Mariscalli comitis Penbrok, Willelmi comitis 
 Saresberiae, Willelmi comitis Warenniae^ Willelmi comitis 
 Arundelliae, Alani de Galweya constabularii Scottiae, Warini 
 filii Geroldi^ Petri filii If ereberti, Huberti de Burgo senescalli 
 Pictaviae, Hugonis de Nevilla, Mathei filii Hereberti, Thomae 
 Basset, Alani Basset, Philippi de Albiniaco, Roberti de Rop- 
 pelay, Johannis Mariscalli, Johannis filii Hugonis, et aliorum 
 fidelium nostrorum.] 
 
 I. In primis concessisse Deo et hac praesenti carta nostra con- 
 firmasse, pro nobis et haeredibus nostris in perpetuum, quod 
 Anglicana ecclesia libera sit, et habeat jura sua Integra, et libertates 
 suas illaesas ; [et ita volumus observari ; quod apparet ex eo 
 quod libertatem electionum, quae maxima et magis necessaria 
 reputatur ecclesiae Anglicanae, mera et spontanea voluntate, ante 
 discordiam inter nos et barones nostros motam, concessimus et 
 carta nostra confirmavimus, et eam optinuimus a domino papa 
 Innocentio tertio confirmari; quam et nos observabimus et ab 
 haeredibus nostris in perpetuum bona fide volumus observari.] 
 Concessimus etiam omnibus liberis hominibus regni nostri, pro 
 
ii8 Magna Charta. [Ch. 
 
 By the charter of Henry I. reliefs were to be 'justa et 
 legitima.' The sum is now defined. {Supra^ pp. 65, 81.) 
 
 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 wardship. Magna 
 Charta remedies the abuses of wardship. {Supra, pp. 65, 81.) 
 
 Marriage. 6. Heirs shall be married without disparagement, their 
 near blood relations having notice beforehand. 
 
 Henry I.'s charter bound the King to consult his baronage 
 as to the marriage of heiresses. In the Articles of the 
 Barons ' haeredes ' were to be married ^per cotisilium 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. 
 
 nobis et haeredibus nostris in perpetuum, omnes libertates sub- 
 scriptas, habendas et tenendas, eis et haeredibus suis, de nobis et 
 haeredibus nostris. 
 
 2. Si quis comitum vel baronum nostrorum, sive aliorum tenen- 
 tium 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 relevium ; scilicet haeres 
 vel haeredes comitis, de baronia comitis integra per centum 
 libras; haeres vel haeredes mihtis, 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 haereditatem suam 
 sine relevio et sine fine. 
 
 4. Custos terrae hujusmodi haeredis qui infra aetatem fuerit, 
 non capiat de terra haeredis nisi rationabiles exitus, et rationabiles 
 consuetudines, et rationabilia servitia, et hoc sine destructione 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 hominibus de feodo illo, qui de 
 exitibus respondeant nobis vel ei cui eos assignaverimus ; et si 
 dederimus vel vendiderimus alicui custodiam alicujus talis terrae, 
 et ille destructionem inde fecerit vel vastum, amittat ipsam cus- 
 
IV.] Magna Charta, 119 
 
 By a strained construction, the word ' haeredes ' was held to 
 include male as well as female heirs. {Supra, pp. 66, 81.) 
 
 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 exsiCtAidsqf 
 other than the three ordinary aids — to ransom the lord's ^"^'^ ^ * 
 person, to knight his eldest son, and once to marry his 
 
 eldest daughter, — and these of reasonable amount. 
 
 16. No one shall be compelled to render more than the Services, 
 due service for a knight's fee or other free tenement. 
 
 29. No knight shall be compelled to pay for castle- Castk- 
 guard, if he be willing to perform the service in person, ox^^^^' 
 
 todiam, et tradatur duobus legalibus et discretis hominibus de 
 feodo illo qui similiter nobis respondeant sicut praedictum est. 
 
 5. Gustos autem, quamdiu custodiam terrae habuerit, sustentet 
 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 carnicis et wainnagiis secundum quod tempus wainnagii exiget 
 et exitus terrae rationabiliter poterunt sustinere. 
 
 6. Haeredes maritentur absque disparagatione, [ita tamen quod, 
 antequam contrahatur matrimonium, ostendatur propinquis 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 haereditate 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 non 
 maritabit sine assensu nostro, si de nobis tenuerit, vel sine assensu 
 domini sui de quo tenuerit, si de alio tenuerit. 
 
I20 Magna Chart a, [Cn. 
 
 (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 32. The Kinsf shall not hold the lands of convicted 
 
 felons. - , f* , , , . . r 
 
 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, they escheated 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, ss. I, 2.) By the 54th George III. c. 145, the for- 
 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 continued liable to be for- 
 feited to the Crown down to 1870. In former times attainder 
 also worked * corruption of blood,' the effect of which was to 
 prevent any inheritance being claimed from or through the 
 attainted person. This harsh law was considerably mitigated 
 by the 54th George HI. c. 145, and other statutes, and finally 
 by the 33rd & 34th Vict. c. 23, passed in 1870, it was 
 enacted that (with the single exception of forfeiture conse- 
 quent upon outlawry) ' no confession, verdict, inquest, con- 
 viction, or judgment of or for treason, or felony, or felo-de-se, 
 shall cause any attainder, or corruption of blood, or any for- 
 feiture or escheat.' 
 
 9. Nee nos nee ballivi nostri seisiemus terram aliquam nee 
 redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt 
 ad debitum reddendum ; nee pleggii ipsius debitoris distringantur 
 quamdiu ipse capitalis debitor sufhcit ad solutionem debiti ; et si 
 capitalis debitor defecerit in solutione debiti, non habens unde 
 solvat, pleggii respondeant de debito ; et, si voluerint, habeant 
 terras et redditiis 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 inciderit in manus nostras, nos non capiemus nisi 
 catallum contentum in carta.] 
 
 [11. Et si quis moriatur, et debitum debeat Judaeis, uxor ejus 
 habeat dotem suam, et nihil reddat de debito illo; et si liberi 
 
IV.] Magna Chart a, 121 
 
 37. The King shall not have the wardship of land held Wardship of 
 in chivalry of a mesne lord, by reason of the sub-tenant mesne lords. 
 also holding other land of the King, either in fee-farm, 
 socage, burgage, or petit-serjeanty ; nor the wardship of 
 such fee-farm unless it owe military service. 
 
 For an explanation of these feudal tenures see supra, pp. 
 65, 69. 
 
 43. The tenants of baronies escheated to the Crown shall Escheated 
 only pay the same relief and perform the same services as ^^^°^^^^- 
 if the lands were still held of a mesne lord. 
 
 46. Barons who have founded abbeys shall have the Abbeys of 
 custody of them when vacant %unLion, 
 
 The Constitutional importance of these remedial provisions, 
 grouped under the head of ' Feudal Obligations,' consists in 
 the evidence which they afford of the vexatious and increas- 
 ingly onerous character of the exactions of the feudal 
 monarchy of the Norman and early Angevin Kings. 
 
 II. — Administration of Lazv and Justice. 
 
 '/17. Common Pleas shall not follow the King's court, but CommoK 
 be held in some certain place. ^'^^'^^' 
 
 ipsius defuncti qui fuerint infra aetatem remanserint, provideantur 
 eis necessaria secundum tenementum quod fuerit defuncti, et de 
 residuo solvatur debitum, salvo servitio dominorum ; 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 faciendum, 
 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 ci vitas 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 con- 
 suetudines suas. 
 
 [14. Et ad habendum commune consilium regni, de auxilio 
 assidendo aliter quam in tribus casibus praedictis, vel de scutagio 
 assidendo, summoneri faciemus archiepiscopos, episcopos, abbates, 
 comites, et majores barones, sigillatim per litteras nostras; et 
 
122 Magna Chart a, iqxl. 
 
 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. 
 
 Assites, 1 8, 19. T\i^ r^co^m^Aon'^ oi Novel disseisin, Mort dances- 
 
 tor, 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 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 ap- 
 pointed for each county, a sufficient number of knights 
 and freeholders present at the assizes shall stay to decide 
 them. 
 
 Afnerce- / 20. A freeman shall only be amerced, for a small offence 
 after the manner of the offence, for a great crime according 
 
 praeterea faciemus summoneri in generali, per vicecomites et bal- 
 livos nostros, omnes illos qui de nobis tenent in capite ; ad certum 
 diem, scilicet ad terminum quadraginta dierum ad minus, et ad 
 certum locum ; et in omnibus litteris illius summonitionis causam 
 summonitionis exprimemus : et sic facta summonitione negotium 
 ad diem assignatum procedat 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 redimendum et ad 
 faciendum primogenitum filium suum militem, et ad primogenitam 
 filiam suam semel maritandam, et ad haec non fiat nisi rationabile 
 auxilium.J 
 
 16. Nullus distringatur ad faciendum majus servitium de feodo 
 militis, nee de alio libero tenemento, quam inde debetur. 
 
 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 comitatibus 
 et hoc modo ; nos, vel si extra regnum fuerimus, capitalis justi- 
 ciarius noster, mittemus duos justiciarios per unumquemque comi- 
 tatum per quatuor vices in anno, qui, cum quatuor militibus 
 cujuslibet comitatus electis per comitatum, capiant in comitatu et 
 in die et loco comitatus assisas praedictas. 
 
 19. Et si in die comitatus assisae praedictae capi non possint, 
 tot milites et libere tenentes remaneant de illis qui interfuerint 
 
IV.] Magna Chart a. 12; 
 
 to the heinousness of it, saving to him his contenement ; 
 and, after the same manner, a merchant saving his mer- 
 chandise, and a villein saving his wainage ; the amerce- 
 ments 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 
 except according to the proportions aforesaid, and not 
 according to the value of his ecclesiastical benefice. 
 
 These clauses (20, 21, 22) 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 'CciQ Judicium Parium. The term ' amercement' is derived • 
 [through] the [old] French \a7nercier, from the Low Lat. 
 amerciare, both meaning to fine], and signified the pecuniary 
 mulct laid upon an individual who had offended the King.^ 
 
 comkatui die illo, per quos possint judicia sufficienter fieri, secun- 
 dum quod negotium fuerit majus vel minus. 
 
 20. Liber homo non amercietur pro parvo delicto, nisi secun- 
 dum 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 misericordiam 
 nostram ; et nulla praedictarum misericordiarum ponatur, nisi per 
 sacramentum proborum hominum de visneto. 
 
 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 quan- 
 titatem beneficii sui ecclesiastici. 
 
 23. Nee villa nee homo distringatur facere pontes ad riparias, 
 nisi qui ab antiquo et de jure facere debent. 
 
 1 [I have here amended, in accordance with Skeat's Etymological Dictionary, 
 1882, s. V. amerce, the erroneous etymology and explanation of this term, 
 
 fiven in previous editions as being the current legal etymology and explanation, 
 t is probable that the author simply followed Blount. Singularly enough, 
 Mr. Lely, in his latest valuable edition of Wharton's Law Lexicon, still offers 
 no explanation whatever of the etymology. — Ed.] 
 
124 Magna Charta, [Gh. 
 
 * Contenement ' signifies that which is indispensable for a 
 man's support and maintenance, according to his rank or 
 occupation, as the armour of a soldier, the books of a scholar. 
 Thus in Glanvill (1. ix. c. 8.) the mesne lord is to demand 
 reliefs from his sub-tenants * secundum facultates, ne nimis 
 gravari inde videantur vel suum contenemenium amittere.' 
 
 * Wainage/ (the wagon or wain, and other implements of 
 husbandry,) was the contenement of the villein or husband- 
 man. At the present day the tools (contenement) of a 
 workman cannot be taken on a distress of rent. 
 
 Pleas of the X 24. No sheriff, constable, coroner, or bailiff of the King 
 Crown. gjj^ii ^q1^ plg^g Qjf ^he Crown.i 
 
 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 away 
 from the County Court and the other inferior local tribunals, 
 
 24. NuUus vicecomes, constabularius, coronatores, vel alii 
 ballivi nostri, teneant placita coronae nostrae. 
 
 [25. Omnes comitatus, hundredi, wapentakii, et trethingii, 
 sint ad antiquas firmas absque ullo incremento, exceptis dominicis 
 maneriis nostris.] 
 
 26. Sialiquis tenens de nobis laicum feodum moriatur, et vice- 
 comes 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. 
 
 1 [It should be remembered, with regard to Pleas of the Crown, as is 
 noted by Bigelow, Hist, of Procedtire hi E?tg., p. 245, that the term plcuita 
 corona; was ' not yet used in the sense now attached to it. It simply meant 
 business of concern to the Crown, reported to the Eyre by the jurors as having 
 transpired in the particular district since the last visitation or report. The 
 *' pleas of the Crown " in the modern sense {i. e., common criminal prosecutions) 
 appear to have been tried mostly in the popular courts, before the coming of 
 the Eyre, at least in the time of the Rotuli Curias Regis (1194 — 1199); and 
 considered merely as prosecutions of crime, these were not "placita coronae" 
 at all.' To the same effect, Maitland, Pleas of the Crown, Clone, 5 He^t. III.^ 
 Int. p. xxvi. , warns us that the ' distinction between the doing of penal justice 
 and the collection of the king's income is only gradually emerging.' Mr. 
 Maitland's interesting Introduction deserves careful study. — Ed.] 
 
rv.] Magna Ckai^ta. 125 
 
 the iujiMiction of jieaj^^ matters. This impor- 
 
 tant judicial reform was not a sudden act, but the result of a 
 gradual process. In the 'Assize of Clarendon,' a.d. 1166, 
 the Itinerant Justices and the Sheriffs are directed to share 
 the office of judge between them.^ A further step was taken 
 in 1 194, when it was ordered that no Sheriff should be a Jus- 
 tice in his own county." 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 Blackstone, ' to be the person injured by every 
 infraction of the public rights of the community.' The won! 
 * constables ' meant castellans, or constables of castles, of 
 
 [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. NuUus 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. NuUus constabularius distringat aliquem militem ad dandum 
 denarios pro custodia castri, si facere voluerit custodiam illam in 
 propria persona sua, vel per alium probum hominem, si ipse earn 
 facere non possit propter rationabilem causam ; et si nos duxeri- , 
 rnus vel miserimus eum in exercitum, erit quietus de custodia, 
 secundum quantitatem temporis quo per nos fuerit in exercitu. 
 
 30. NuUus 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 
 
 ' Et hoc inquirant Justitioe coram se, et vicecomites coram se. Assize of 
 Clarendon, c. I. (Select Chart. 137.) 
 
 2 Forma procedendi in placitis Coronee Regis, c. 21. Hoveden, iii. 262 — 
 267. (Select Chart. 252.) 
 
126 Magna Charta, [Ch. 
 
 which, in the time of Henry II., there were upwards of eleven 
 hundred in England. These constables possessed consi- 
 derable 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 jurisdiction 
 of the lords was exercised by the stewards or bailiffs. The 
 convenience of secure prisons afforded by these 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 (5 th 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 X 34- '^^^ ^^^^ called Praecipe shall not in future be issued 
 Praecipe in so as to cause a freeman to lose his court. 
 
 capite. 
 
 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, 
 
 Londoniense, et una latitudo pannorum tinctorum, et russettorum^ 
 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 feodifirmae, vel sokagii, vel 
 burgagii ; nee habebimus custodiam illius feodifirmae, vel sokagii, 
 vel burgagii, nisi ipsa feodifirma debeat servitium militare. Nos- 
 
 ^ [The reasons for this clause being required by the Baronage are forcibly 
 put by Bigelow, Hist, of Procedure in Eng., p. 76. 'There was nothing to 
 prevent the king from drawing into his court all the causes of the people ; and 
 on one pretext or another he did seriously invade the jurisdiction of other.courts, 
 especially of the Manorial Courts,' The jurisdiction of the King's Court, as- 
 Bigelow notes, was ' limited in fact only by the king's will.' On Constitutional 
 grounds, therefore, it would seem well to have set some limits to it, if only on 
 parchment. — Ed.] 
 
IV.] Magna Ckarta. 127 
 
 was obliged to sue for its recovery, in the first instance, in 
 the court-baron of his immediate lord. The writ of praecipe 
 in capite was the process by which such causes were called 
 up into the King's court. 
 
 K 36. The writ of inquest of life or limb shall be given Writ De 
 gratis, and not denied. '^'' '' ""^'^ 
 
 The object of this clause was to prevent the long im- 
 prisonment of a person charged with a crime without 
 examining into his guilt or innocence. The writ referred to 
 was that ^JDe odio et atia ' (analogous to that of Habeas Corpus), 
 and was the only means by which a person imprisoned on a 
 charge of homicide could procure the privilege, in certain 
 circumstances, of being released on bail to await the Iter of 
 the King's Justices (Glanvill, lib. xiv. c. 3). The writ was 
 not, however, issuable as of right, but only as a matter of 
 Royal favour (ex regise potestatis beneficio). Advantage was 
 taken of this circumstance during John's reign to extort large 
 sums of money for the privilege (see Bracton, Vol. II., Intro- 
 duction, Ixii., by Sir Travers Twiss). Magna Charta made 
 it grantable as a matter of right, and without payment. 
 Henceforth it became one of the greatest securities of 
 personal liberty. 
 
 ^ 38. No bailiff for the future shall put anyone to his law Wager of 
 {ad legem) upon hi« 
 witnesses to prove it. 
 
 {ad legem) upon his own bare saying, without credible ^^' 
 
 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 simplici 
 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. 
 
 40. NULLI VENDEMUS, NULLI NEGABIMUS, AUT DIFFEREMUS, 
 RECTUM AIJT JUSTICIAM. 
 
 41. Omnes mercatores habeant salvum et securum exire de 
 Anglia, et venire in Angliam, et morari et ire per Angliam, tarn 
 per terram quam per aquam, ad emendum et vendendum, sine 
 
3^8 Magna Chart a. [Cii. 
 
 The meaning of this clause has been disputed. By * ad 
 legem,' may have been signified the ordeal, to which reputed 
 criminals were not to be subjected except on the presentment 
 of a jury of the Hundred (Assize of Clarendon, in 1166; 
 Richard I.'s Articles of Visitation, in 11 94). But the ordeal 
 was declared unlawful by the Lateran Council ^ in November, 
 1 2 15, and this clause of the Charter was repeated in the re- 
 issue of 9 Hen. HI. c. 28. The Mirror of Justice (a compi- 
 lation of the reign of Edward II. -or the early part of Edw. 
 III.) explains it, 'that no justice, no minister of the King, 
 nor other officer nor bailiff, have 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, make their appearance. (See Reeves' Hist. 
 of the Common Law, ed. Finlason, i. 283.) 
 
 Ac 
 
 ^Ne exeat 42. In future anyone may leave the kingdom and return 
 
 ^restrained ^^ ^^'^^\ unless in time of war, when he may be restrained 
 ' for some short space for the common good of the king- 
 
 omnibus malis toltis, per antiquas et rectas consuetudines, praeter- 
 quam in tempore gwerrae, et si sint de terra contra nos gwerrina ; 
 et si tales inveniantur in terra nostra in principio gwerrae, attachi- 
 entur sine dampno corporum et rerum, donee sciatur a nobis vel 
 capitali justiciario nostro quomodo mercatores terrae nostrae 
 tractentur, qui tunc invenientur in terra contra nos gwerrina ; et 
 si nostri salvi sint ibi, alii salvi sint in terra nostra. 
 
 [42. Liceat unicuique de cetero exire de regno nostro, et redire, 
 salvo et secure, per terram et per aquam, salva fide nostra, nisi 
 tempore gwerrae per aliquod breve tempus, propter communem 
 utihtatem regni, exceptis imprisonatis et utlagatis secundum legem 
 regni, et gente de terra contra nos gwerrina, et mercatoribus de 
 quibus fiat sicut praedictum est.] 
 
 1 [A Conciliar Decree, it seems evident, could only bind inforo conscietUia, 
 And although it is true that the Judges of England, as of other countries, in 
 the 13th century, were to a great extent Ecclesiastics, it may well be doubted 
 whether they would have allowed the force of a vStatute to the Decree of what in 
 their eyes must have been an GEcumenical Council, while respecting it personally 
 as binding in Morals. It is submitted, therefore, that this Decree should not 
 be cited as though it had force to change the law of the land. — Ed.] 
 
IV.] Magna Charta, 129 
 
 dom.' Prisoners, outlaws, and alien enemies are excepted, 
 and foreign merchants shall be dealt with as provided in 
 the 41st clause {infra, p. 143). 
 
 This clause has some Ecclesiastical interest, as it removed 
 a practical impediment in the way of appeals to Rome.^ It 
 was among the clauses reserved for further consideration in 
 Henry III.'s first re-issue of the Charter, and was never after- 
 wards restored. The Sovereign still retains the prerogative 
 of preventing any subject from quitting the realm, by the writ 
 ne exeat regno. Sir Edward Coke points out (3 Inst. ch. 84), 
 that although by the Common Law every one had liberty to 
 go abroad when he would, unless specially enjoined to 
 remain at home, there were formerly certain orders of men 
 under a continual prohibition from quitting the realm, with- 
 out the King's previous licence. Peers were thus prohibited, 
 because they were the councillors of the Crown ; knights, 
 because they were to defend the kingdom from invasion j all 
 ecclesiastics, because they were confined by a special law 
 (Assize of Clarendon, 10 Hen. II.), on account of their 
 attachment to the See of Rome ; and all archers and artifi- 
 cers, lest they should instruct foreigners how to rival the 
 manufactures of England. In 138 1, a statute (5 Ric. II, 
 c. ii.) prohibited all persons whatever from going abroad 
 without licence, except only the lords and other great men 
 
 43. Si quis tenuerit de aUqua escaeta, sicut de honore Walinge- 
 ford, Notingeham, Bononiae, Lainkastriae, vel de aliis eskaetis, 
 quae sunt in manu nostra, et sunt baroniae, et obierit, haeres ejus 
 non det aliud relevium, nee faciat nobis aliud servitium quam 
 faceret baroni si baronia ilia esset in manu baronis ; et nos eodem 
 modo eam tenebimus quo baro eam tenuit. 
 
 44. Homines qui manent extra forestam non veniant de cetero 
 coram justiciariis nostris de foresta per communes summonitiones, 
 nisi sint in placito, vel pleggii alicujus vel aliquorum, qui attachiati 
 sint pro foresta. 
 
 [45. Nos non faciemus justiciarios, constabularios, vice-comites, 
 vel ballivos, nisi de talibus qui sciant legem regni et eam bene 
 velint observare.] 
 
 ^ [Mr. Pearson, Hist. Eng. Early and Middle Ages, 1867, ii. 89, quotes 
 this article as * a signal protest against the passport system.' Unfortunately, it 
 was 'reserved for consideration,' t. Hen. III., and never restored, so that 
 the theory of the Crown, and the judgment of the nation, as given in Magna 
 Charta, would seem to be still at issue, and the maintenance of the prerogative 
 writ ne exeat keeps up the mediaeval pretension that the Crown has the power 
 of making prisoners of a whole nation, which would be absurd. — Ed.] 
 CH. K 
 
130 Magna Charta, [Ch. 
 
 of the realm, true and notable merchants, and the King's 
 soldiers. This was not repealed till the 4th James I. c. i. 
 In his reign, however, various Acts were passed restraining, 
 as a particular guard against the Papacy, the sending, without 
 licence, any children out of the realm, to seminaries beyond 
 sea, or for any cause whatever, as well as an Act (3 Jac. I. 
 c. 4) making it felony for any person leaving the realm to 
 serve a foreign prince. The writ ne exeat is now, in practice, 
 only used to prevent a party to an action in respect of 
 equitable debts and claims from withdrawing his person and 
 property from the jurisdiction of the Court. 
 
 Forest S 44. Persons dwelling without [the limits of a] forest ^ 
 
 courts. gj^^jj j^Q^ jj^ future be compelled to attend the King's forest 
 
 courts upon common summons, unless they be impleaded 
 
 or be pledges for others attached for something concerning 
 
 the forest. 
 
 Henry II., in the Assize of Woodstock (1184), had estab- 
 lished an exact analogy between the courts of the Shire and 
 those of the Forest, all men being required to attend the 
 King's forest court, which exercised supreme jurisdiction over 
 all woods and forests, whether part of the Royal demesne or 
 not. He appointed Justices to visit the Forests at the same 
 time and on the same system as the Justices Itinerant. Com- 
 pulsory attendance at the Forest courts, which was regarded 
 
 46. Omnes barones qui fundaverunt abbatias, unde habent 
 cartas regum Angliae, vel antiquam tenuram, habeant earum cus- 
 todiam cum vacaverint, sicut habere debent. 
 
 47. Omnes forestae quae aforestatae sunt tempore nostro statim 
 deafforestentur, et ita fiat de ripariis quae per nos tempore nostro 
 positae sunt in defenso. 
 
 [48. Omnes malae consuetudines de forestis et warennis, et de 
 forestariis et warennariis, vicecomitibus et eorum ministris, ripariis 
 et earum custodibus, statim inquirantur in quolibet comitatu per 
 duodecim milites juratos de eodem comitatu, qui debent eligi per 
 probos homines ejusdem comitatus, et infra quadraginta dies post 
 inquisitionem factam, penitus, ita quod nunquam revocentur, 
 deleantur per eosdem, ita quod nos hoc sciamus prius, vel justi- 
 ciarius noster, si in Anglia non fuerimus.] 
 
 ^ [The text of the Charter must mean without the limits of any forest in the 
 Realm, and I have altered the translation so as to convey this meaning more 
 clearly. — Ed.] 
 
IV.] Magna Charta. 131 
 
 as a great grievance, was abolished by this clause of the 
 charter. Other remedial provisions were added in the Carta 
 de Foresta of Henry III. (12 17). 
 
 ^ 
 
 45. Justices, constables, sheriffs, and bailiffs shall only he Judges to be 
 
 skilk - ■ - 
 law. 
 
 appointed of * such as know the law and mean duly to •^'^"^^^ ^^ ^^* 
 
 observe it' 
 
 ^ 54. No one shall be taken or imprisoned on the appeal Appeal by a 
 of a woman except for the death of her husband. "Teathlfher 
 
 husband. 
 In cases of death by murder or manslaughter, an ' appeal ' 
 
 of felony was allowed to be brought by certain relations only 
 
 of the deceased ; by the widow for the death of her husband, 
 
 or by the heir male for the death of his ancestor. The word 
 
 * appeal ' is not used here in the ordinary sense of a complaint 
 
 to a higher court for injustice done by an inferior one ; but 
 
 signifies an accusation or challenge, an original suit by one 
 
 subject against another, rather because of his own peculiar 
 
 [49. Omnes obsides et cartas statim reddemus quae liberatae 
 fuerunt nobis ab Anglicis in securitatem pacis vel fidelis servitii.] 
 
 [50. Nos amovebimus penitus de balliis parentes Gerardi de 
 Athyes, quod de cetero nullam habeant balliam in Anglia : Enge- 
 lardum de Cygoniis^ Andream, Pet rum, et Gyonem de Cancellis, 
 ■ Gyonem de Cygoniis, Galfridum de Martyni et fratres ejus, Philip- 
 pui7i Mark et fratres ejus, et Galfridum nepotem ejus, et totara 
 sequelam eorundem.] 
 
 [51. Et statim post pacis reformatiottem amovebimus de regno 
 omnes alienigenas milites, balistarios, servientes, stipendiarios, qui 
 venerint cum equis et armis ad nocumentum regni.] 
 
 [52. Si quis fuerit disseisitus vel elongatus per nos sine legali 
 judicio parium suorum, de terris, castallis, libertatibus, vel jure 
 
 ^ [On Gerard de Athyes, and Engelard de Cygoniis, see Maitland's Pleas of 
 the Crown for the County of Gloucester^ 5 Hen. III., Introd., p. 13 seq. Mr. 
 Maitland writes the names of these 'foreign adventurers,' 'Athee' and 
 'Cigogne,' and says that Athee, Cigogne, and Chanceaux (referring to Gyo de ' 
 Cancellis), are all in Touraine, between Amboise and Loches. Gerard of 
 Athyes is stated by Will. Brito {Pkilippid. ) to have been * servus et a servis 
 oriundus utroque parentis his lord being the lord of Amboise. To say, as 
 Mr. Maitland says, that Gerard de Athyes ' must have been a man after John's 
 own heart,' is to pass a judgment the severity of which it would be difficult to 
 exceed. Pearson, Hist. Eng. Early and Middle Ages, ii. go, suggests that the 
 ignoble birth of the relations of Gerard may have made them ' specially 
 obnoxious.' But this does not seem an adequate reason for a wholesale 
 expulsion, if it ever took place, which seems doubtful. Cf. Luard, Preface, 
 p. XXXV., vol. ii. of Matt. Paris, Chron. Maj. Engelard de Cygoniis and Philip 
 Mark, at least, are found in England as peace disturbers, says Luard, citing 
 Wendover, in 1221 and 1224. — Ed.] 
 
 K 2 
 
132 Magna Charta, [Ch. 
 
 damage than for an offence against the public. The origin of 
 this private process for the punishment of pubHc crimes was 
 doubtless derived from the old days when a wergild was pay- 
 able to the relatives of the slain. The defendant in an 
 appeal had the right of trial by battel. The parties were 
 obliged to fight in their own persons, except the appellant 
 were a woman, a priest, an infant, lame, blind, or sixty years 
 old, in any of which cases he might 'counterplead the battel ' 
 and compel the defendant to put himself upon trial by his 
 country. It was perhaps because the appellee lost his right 
 of defending himself by combat when the appellant was a 
 woman that her appeal was limited to the death of her hus- 
 band. If the appellee were worsted in the combat, or found 
 guilty, he suffered the same judgment as if convicted on an 
 indictment : but the Crown had no power to pardon him, 
 because an * appeal ' was a private suit. (See Glanvill, lib. 4; 
 Bracton, lib. 3 ; Britton, lib. i. ; Hawkins, Pleas of Crown, ii. 
 392.) From the date of the statute 3 Hen. VII. c. i., an 
 appeal might be brought even after the appellee had been 
 tried and acquitted on an indictment. The * battel ' took 
 place in the presence of the Judges of the Court of Common 
 
 suo, statim ea ei restituemusj et si contentio super hoc orta 
 fuerit, tunc inde fiat per judicium viginti quinque baronum, de 
 quibus fit mentio inferius in securitate pacis ; de omnibus autem 
 illis de quibus aliquis disseisitus fuerit vel elongatus sine legali 
 judicio parium suorum, per Henricum regem patrem nostrum vel 
 per Ricardum regem fratrem nostrum, quae in manu nostra habe- 
 mus, vel quae alii tenent, quae nos oporteat warantizare, respec- 
 tum habebimus usque ad communem terminum crucesignatorum ; 
 exceptis illis de quibus placitum motum fuit vel inquisitio facta 
 per praeceptum nostrum, ante susceptionem crucis nostrae : cum 
 autem redierimus de peregrinatione nostra, vel si forte remanseri- 
 mus a peregrinatione nostra, statim inde plenam justiciam exhibe- 
 bimus.] 
 
 [53. Eundem autem respectum habebimus, et eodem modo, de 
 justicia exhibenda de forestis deafforestandis vel remansuris fores- 
 tis, quas Henricus pater noster vel Ricardus frater noster affores- 
 taverunt, et de custodiis terrarum quae sunt de alieno feodo, 
 cujusmodi custodias hucusque habuimus occasione feodi quod 
 aliquis de nobis tenuit per servitium militare, et de abbatiis quae 
 fundatae fuerint in feodo alterius quam nostro, in quibus dominus 
 feodi dixerit se jus habere ; et cum redierimus, vel si remanseri- 
 mus a peregrinatione nostra, super hiis conquerentibus plenam 
 justiciam statim exhibebimus.J 
 
 54. NuUus capiatur nee imprisonetur propter appellum foeminae 
 de morte alterius quam viri sui. 
 
IV,] Magna Charta, 133 
 
 Pleas, attired in their scarlet robes, who sat looking on while 
 the combatants, each armed with a staff an ell long, and a 
 leathern shield, cudgelled each other from sunrise to star- 
 rising, or until one of them cried 'craven.' Though long 
 obsolete, neither appeals nor trials by battle were legally- 
 abolished till the early part of the present century.^ In 1 8 1 7 a 
 writ of appeal was tried in the Court of King's Bench against 
 Abraham Thornton, for the alleged rape and murder of Mary 
 Ashford. The appellee, who had already been tried and 
 acquitted at Warwick Assizes on the same charge, cast down 
 his glove in open court and formally demanded trial by battle 
 
 [55. Omnes fines qui injuste et contra legem terrae facti sunt 
 nobiscum, et omnia amerciamenta facta injuste et contra legem 
 terrae, omnino condonentur, vel fiat inde per judicium viginti 
 quinque baronum de quibus fit mentio inferius in securitate pacis, 
 vel per judicium majoris partis eorundem, una cum praedicto 
 Stephano Cantuariensi archiepiscopo, si interesse poterit, et aliis 
 quos secum ad hoc vocare voluerit ; et si interesse non poterit, 
 nihilominus procedat negotium sine eo, ita quod, si aliquis vel 
 aliqui de praedictis viginti quinque baronibus fuerint in simili 
 querela, amoveantur quantum ad hoc judicium, et alii loco illorum 
 per residuos de eisdem viginti quinque, tantum ad hoc faciendum 
 electi et jurati substituantur.] 
 
 [56. Si nos dissaisivimus vel elongavimus Walenses de terris 
 vel libertatibus vel rebus aliis, sine legali judicio parium suorum, 
 in Angha vel in Wallia, eis statim reddantur ; et si contentio super 
 hoc orta fuerit, tunc inde fiat in marchia per judicium parium 
 suorum, de tenementis Angliae secundum legem Angliae, de tene- 
 mentis Walliae secundum legem Walliae, de tenementis marchiae 
 secundum legem marchiae. Idem facient Walenses nobis et 
 nostris.] 
 
 [57. De omnibus autem iUis de quibus aliquis Walensium dis- 
 saisitus fuerit vel elongatus sine legali judicio parium suorum, per 
 Henricum regem patrem nostrum vel Ricardum regem fratrem 
 nostrum, quae nos in manu nostra habemus, vel quae alii tenent 
 
 1 [It may be well to add that trial by battle appears to have been of Norman 
 introduction, and that it probably descended to the Normans from the 
 Scandinavian Holmgang. Bigelow, Hist, of Procedure in Eng., pp. 326 — 7, 
 says that ' the duel became a feature of judicial procedure in England, if the 
 absence of mention of it previously is conclusive, only upon the advent of the 
 Normans.' It was, he notes, 'as common in Normandy before the Conquest 
 as was the ordeal in England,' A case given in the same author's Placita 
 Anglo- Norniannica, 16, IVulfstan, Bp. of Worcester, v. Abbot Walter, probably 
 circa 1077, shews the men of the Bishop ready to prove his case ' by oath and by 
 battle,' and seems conclusive as to the early establishment of this Norman 
 innovation, if such it was. — Ed.] 
 
134 Magna Charta, [Ch. 
 
 against the appellant, the brother of the deceased. The 
 Court having allowed the demand, time was given for due 
 consideration of the novel circumstances of the case ; ulti- 
 mately the appellant declined to accept the challenge, and 
 the defendant was discharged without bail on Oct. 20, 18 18. 
 (See Ashfordv. Thornton^ i Barn. & Aid. 405-461.) This 
 led to the passing (22nd June, 18 19) of the statute 59 
 George III. c. 46, intituled * An Act to abolish appeals of 
 Murder, Treason, Felony, or other offences, and Wager of 
 Battel, or joining issue and trial by Battel in Writs of Right* 
 
 III. — Fundamental Principles of the Constitution, 
 
 Noscuiageor^ 12. No scutage or aid shall be imposed unless /^r ^^w- 
 'aX^id^to'be ^^^^ conciUum regni, except in the three cases of ransom- 
 imposed ing the King's person, making his eldest son a knight, and 
 Tht Common once for marrying his eldest daughter ; and for these the 
 
 Council of 
 
 the nation. 
 
 quae nos oporteat warantizare, respectum habebimus usque ad 
 communem terminum crucesignatorum, illis exceptis de quibus 
 placitum motum fuit vel inquisitio facta per praeceptum nostrum 
 ante susceptionem crucis nostrae : cum autem redierimus, vel si 
 forte remanserimus a peregrinatione nostra, statim eis inde plenam 
 justiciam exhibebimus, secundum leges Walensium et partes prae- 
 dictas.] 
 
 [58. Nos reddemus filium Lewelini statim, et omnes obsides 
 de Wallia, et cartas quae nobis liberatae fuerunt in securitatem 
 pacis.] 
 
 [59. Nos faciemus Allexandro regi Seottorum de sororibus 
 suis, et obsidibus reddendis, et libertatibus suis, et jure suo 
 secundum formani in qua faciemus aliis baronibus nostris Angliae, 
 nisi aliter esse debeat per cartas quas habemus de Willelmo 
 patre ipsius, quondam rege Seottorum ; et hoc erit per judicium 
 parium suorum in curia nostra.] 
 
 60. Omnes autem istas consuetudines praedictas et libertates 
 quas nos concessimus in regno nostro tenendas quantum ad nos 
 pertinet erga nostros, omnes de regno nostro, tam clerici quam 
 laici, observent quantum ad se pertinet erga suos. 
 
 [61. Cum autem pro Deo, et ad emendationem regni nostri, 
 et ad melius sopiendum discordiam inter nos et barones nostros 
 ortam, haec omnia praedicta concesserimus, volentes ea integra 
 et firma stabilitate gaudere in perpetuum, facimus et concedi- 
 mus eis securitatem subscriptam ; videlicet quod barones eligant 
 viginti quinque barones de regno quos voluerint, qui debeant pro 
 totis viribus suis observare, tenere, et facere observari^ pacem et 
 
IV.] Magna Charta. 135 
 
 aids shall be reasonable. In like manner it shall be con- 
 K:erning the aids of the city of London. 
 
 ^^ 14. In order to take the common counsel of the Nation Method of 
 in the imposition of aids (other than the three regular feudal the National 
 aids) and of scutage, the King shall cause to be summoned Council. 
 the archbishops, bishops, earls, and greater barons, by writ 
 directed to each severally, and all other tenants in capite by 
 a general writ addressed to the sheriff of each shire ; a 
 certain day and place shall be named for their meeting, 
 of which forty days' notice shall be given ; in all letters of 
 summons the cause of summons shall be specified ; and the 
 consent of those present on the appointed day shall bind 
 those who, though summoned, shall not have attended. 
 
 These two clauses (12, 14) surrender the Royal claim to 
 arbitrary taxation, and lay down the principle that the 
 Nation ought not to be taxed except by consent of the 
 National Council. Talliages upon towns are not indeed 
 included. The towns were still to a great extent in the 
 position of demesne lands of the King or other lord, and their 
 
 libertates quas eis concessimus, et hac praesenti carta nostra con- 
 firmavimus, ita scilicet quod, si nos, vel justiciarius noster, vel 
 ballivi nostri, vel aliquis de ministris nostris, in aliquo erga 
 aliquem deliquerimus, vel aliquem articulorum pacis aut secu- 
 ritatis transgress! fuerimus, et delictum ostensum fuerit quatuor 
 baronibus de praedictis viginti quinque baronibus, illi quatuor 
 barones accedant ad nos vel ad justiciarium nostrum, si fuerimus 
 extra regnum, proponentes nobis excessum : petent ut excessum 
 ilium sine dilatione faciamus emendari. Et si nos excessum non 
 emendaverimus, vel, si fuerimus extra regnum, justiciarius noster 
 non emendaverit infra tempus quadraginta dierum computandum 
 a tempore quo monstratum fuerit nobis vel justiciario nostro si 
 extra regnum fuerimus, praedicti quatuor barones referant causam 
 illam ad residues de viginti quinque baronibus, et illi viginti 
 quinque barones cum communa totius terra destringent et grava- 
 bunt nos modis omnibus quibus poterunt, scilicet per captionem 
 castrorum, terrarum, possessionum, et aliis modis quibus poterunt, 
 donee fuerit emendatum secundum arbitrium eorum, salva per- 
 sona nostra et reginae nostrae et liberorum nostrorum ; et cum 
 fuerit emendatum intendent nobis sicut prius fecerunt. Et qui- 
 cumque voluerit de terra juret quod ad praedicta omnia exse- 
 quenda parebit mandatis praedictorum viginti quinque baronam, 
 
13^ Magna Ckarta. 
 
 [Ch. 
 
 inhabitants in a state of quasi-villeinage. They had yet to 
 work their way into acknowledged participation in the rights 
 here admitted to belong to all the free landholders of the 
 kingdom. It is noticeable that in the * Capitula quae 
 Barones petunt et Dominus Rex concedit ' (the rough draft 
 of the barons' demands, subsequently embodied in the 
 Charter,), after the provision against levying scutage or aids 
 except by consent of the national council, occur the words : 
 * Simili modo fiat de tallagiis et auxiliis de civitate Lon- 
 doniarum et de aliis civitatibus quae inde habent libertates.' 
 The barons evidently intended to make the proiiibition of 
 arbitary taxation general, and to protect the citizens and 
 burgesses equally with the landholders ; but for some unex- 
 plained reason, these words were omitted in the Charter 
 itself. The City of London can never have been regarded 
 as a demesne of the Crown, and it is accordingly here 
 ranked with the free tenants in capite. The word ' baron ' 
 was of wide signification, including, if not all freeholders, 
 all free tenants in chief. It had not yet become a title in 
 its modern acceptation. The citizens of London and of the 
 Cinque Ports were sometimes designated ' barons.' While 
 the 'greater barons' developed into the House of Lords, 
 
 et quod gravabit nos pro posse suo cum ipsis, et nos publice et 
 libere damns licentiam jurandi cuilibet qui jurare voluerit, et 
 nulli unquam jurare prohibebimus. Omnes autem illos de terra 
 qui per se et sponte sua noluerint jurare viginti quinque baro- 
 nibus, de distringendo et gravando nos cum eis, faciemus jurare 
 eosdem de mandato nostro, sicut praedictum est. Et si aliquis 
 de viginti quinque baronibus decesserit, vel a terra recesserit, vel 
 aliquo alio modo impeditus fuerit, quo minus ista praedicta pos- 
 sent exsequi, qui residui fuerint de praedictis viginti quinque 
 baronibus eligant alium loco ipsius, pro arbitrio suo, qui simili 
 modo erit juratus quo et ceteri. In omnibus autem quae istis 
 viginti quinque baronibus committuntur exsequenda, si forte ipsi 
 viginti quinque praesentes fuerint, et inter se super re aliqua dis- 
 cordaverint, vel aliqui ex eis summoniti nolint vel nequeant 
 interesse, ratum habeatur et firmum quod major pars eorum qui 
 praesentes fuerint provident, vel praeceperit, ac si omnes viginti 
 quinque in hoc consensissent ; et praedicti viginti quinque jurent 
 quod omnia antedicta fideliter observabunt, et pro toto posse suo 
 facient observari. Et nos nihil impetrabimus ab aliquo, per nos 
 nee alium, per quod aliqua istarum concessionum et libertatum 
 revocetur vel minuatur ; et, si aliquid tale imj^etratum fuerit, 
 irritum sit et inane et nunquam eo utemur per nos nee per 
 alium.] 
 
 [62. Et omnes malas voluntates, indignationes, et rancorcs, 
 
IV.] Magna Charta, 137 
 
 the 'lesser barons' became absorbed in the mass of the 
 commonalty, and were represented, with the towns, in the 
 House of Commons. The significance of the 14th clause, 
 as defining the method of summoning the National Council, 
 will be discussed later on in the chapter on the * Origin of 
 Parliament.' Although the 12th and 14th clauses were 
 omitted in Henry IH.'s renewals of the Charter, the form of 
 a grant appears to have been generally observed throughout 
 his reign. ^ 
 
 [Prof. Burrows, Arch, Rev.^ iv. p. 442, says that the title of 
 * baron ' was applied to the freemen of several of the later 
 Members of the Cinque Ports, ' with no mark whatever of the 
 title being adopted in consequence of membership.' — Ed.] 
 
 ^39. No FREE MAN SHALL BE TAKEN OR IMPRISONED, y«^f^''''« 
 
 iartum. ' 
 OR DISSEISED, OR OUTLAWED, OR EXILED, OR ANYWAYS ' . 
 
 DESTROYED ; NOR WILL W^E GO UPON HIM, NOR WILL WE 
 
 SEND UPON HIM, UNLESS BY THE LAWFUL JUDGMENT OF 
 
 HIS PEERS, OR BY THE LAW OF THE LAND. 
 
 ^ 40. To NONE WILL WE SELL, TO NONE WILL WE DENY JVo sale, 
 
 denial or 
 OR DELAY, RIGHT OR JUSTICE. delay of 
 
 In these clauses of the Charter, remarks Sir James-' 
 Mackintosh,^ ' are clearly contained the Habeas Corpus and 
 the Trial by Jury, the most effectual securities against 
 oppression which the wisdom of man has hitherto been able 
 to devise.' Hallam has termed them the ' essential clauses,' ' 
 as being those which ' protect the personal liberty and pro- 
 perty of all freemen, by giving security from arbitrary im- 
 
 ortos inter nos et homines nostros, clericos et laicos, a tempore 
 discordiae, plene omnibus remisimus et condonavimus. Praeterea 
 omnes transgressiones factas occasione ejusdem discordiae, a 
 Pascha anno regni nostri sextodecimo usque ad pacem reformatam 
 plene remisimus omnibus, clericis et laicis, et quantum ad nos 
 pertinet plene condonavimus. Et insuper fecimus eis fieri litteras 
 testimoniales patentes domini StephaniCantuariensisarchiepiscopi, 
 domini Henrici Dublinensis archiepiscopi, et episcoporum prae- 
 dictorum, et magistri Pandulfi, super securitate ista et conces- 
 sionibus praefatis.] 
 
 [63. Quare volumus et firmiter praecipimus quod Anglicana 
 ecclesia libera sit et quod homines in regno nostro habeant et 
 teneant omnes praefatas libertates, jura, et concessiones, bene 
 
 1 Scias quod comites et barones et omnes alii de toto regno nostro Angliae 
 spontanea voluntate sua et sine consuetudine concesserunt nobis efHcax auxiliuni 
 ad magna negotia nostra expedienda, — Writ for collection of scutage, A.D. 
 1235, Brady, Introduct. Hist. Eng., App. 43, and Select Chart. 355. 
 
 '^ [Hist. Eng. i. 219 — 20. — Ed.] 
 
138 Magna Charta, [Ch. 
 
 prisonment and arbitrary spoliation/ There is a breadth 
 about the simple language employed, as if those who wrote it 
 felt that they were asserting universal principles of justice. 
 Henceforth * it must have been a clear principle of our 
 constitution, that no man can be detained in prison without 
 trial. Whether courts of justice framed the writ of Habeas 
 Corpus in conformity to the spirit of this clause, or found it 
 already in their register, it became from that era the right of 
 every subject to demand it' 1 Sir Edward Coke, commenting 
 on these clauses,^ (as they stand combined in the 29th clause 
 of the 9th of Henry HI. with the words * de libero tenemento 
 suo, vel liber tatibus, vel liberis consMetudinibus suis,' inserted 
 after * dissaisietur'), points out that the evils from which the 
 laws of the land are to protect the subject are here recited 
 in the order in which they most affect him. 
 
 (i) Nullus liber homo capiatur vel imprisonetur ; because 
 the liberty of a man's person is more precious to him than 
 all the rest that follows ; and the word * taken ' includes the 
 being restrained of liberty by petition or suggestion to the 
 King or his council. 
 
 (2) Aut dissaisieiur de libero tenemento suo, vel libertatibus, 
 vel liberis consuetudinibus suis ; meaning thereby that no man 
 shall be dispossessed * of his freehold — that is, lands or liveli- 
 hood ; or of his liberties or free customs — that is, of such 
 franchises or free customs as belong to him of his free birth- 
 right' The word ' liberties ' has various significations, as the 
 laws of the realm, franchises and privileges bestowed by the 
 King, and the natural freedom possessed by the subjects of 
 England : and as being opposed to this last, monopolies, in 
 general, are contrary to the Great Charter. 
 
 (3) Aut utlagetur, aut exuletur, aut aliquo modo destruatur. 
 By outlawry is signified the ejecting of a person, by three- 
 
 et in pace, libere et quiete, plene et integre, sibi et haeredibus 
 suis, de nobis et haeredibus nostris, in omnibus rebus et locis, 
 in perpetuum, sicut praedictum est Juratum est autem tam 
 ex parte nostra quam ex parte baronum, quod haec omnia 
 supradicta bona fide et sine malo ingenio observabuntur. 
 Testibus supradictis et multis aliis. Data per manum nostram 
 in prato quod vocatur Runingmede, inter Windelesorum et 
 Stanes, quinto decimo die Junii, anno regni nostri septimo 
 decimo.l 
 
 * Hallam, Middle Ages, ii, [325]. 
 
 2 See Coke's Second Institute, i. i — 77 ; and Thomson, Magna Charta. 
 
IV.] Magna Charta, ^39 
 
 public proclamations, from the benefit of the law, a process 
 which, from the time of Alfred until long after the reign of 
 William the Conqueror, was available in the case of felony- 
 only, for which the penalty was death; and therefore an 
 outlaw, having, as it was said, a wolfs head, might be slain 
 by any man. Early in Edward III.'s reign it was enacted 
 that none but the sheriff should put an outlaw to death, 
 under pain of being considered guilty of felony; the only 
 exception was when an outlaw was slain during an at- 
 tempt to capture him. By exile is signified the being com-* — 
 pulsorily banished, or forced to abjure the realm. For this— 
 cause, says Sir Edward Coke, the King cannot send any 
 subject of England against his will on service out of this 
 realm, lest, under pretence of service as ambassador or the 
 like, he might be sent into exile contrary to the Charter. 
 Destroyed \s interpreted to mean ' fore-judged of life and limb, — 
 disherited, or put to torture, or death, and includes every 
 oppression against law, by colour of any usurped authority.' 
 Sir Edward also points out that the words ' in any manner ' 
 are added to the verb 'destroyed,' and to no other in the 
 sentence, because everything in any manner tending to de-""" 
 struction is prohibited ; thus, if a man be accused or indicted 
 of treason or felony, his lands or goods can neither be seized 
 into the king's hands, nor granted, nor even promised to 
 another, before attainder, for until attainder, the accused 
 ought to live of his own ; and when a promise of the forfei- 
 ture had previously been made, it often followed that for 
 private lucre undue means and more violent prosecution than 
 the ordinary course of law would justify, were employed. 
 
 (4) Nee super eum ibimus nee super eufn 7Jiittemus ; inade- 
 quately translated in the Statutes at large by ' nor will we 
 pass upon him, nor condemn him.' Sir Edward Coke ex- 
 plains these words : * No man shall be condemned at the ^ 
 king's suit, either before the King in his bench, where the 
 pleas are coram rege (and so are the words nee super eu7n 
 ibimus to be understood), nor before any other commissioner 
 or judge whatsoever (and so are the words nee super eum 
 mittemus to be understood) but by the judgment of his peers 
 — that is, equals, .or according to the law of the land.' But— 
 the significance of the words is brought out much more 
 clearly by Dr. Lingard, who remarks that John had hitherto 
 been in the habit of going with an armed force, or sending an 
 armed force on the lands and against the castles of all whom 
 he knew or suspected to be his secret enemies, without 
 observing any form of law.^ The king's letters patent still 
 
 1 Lingard, Hist. Eng. iii. c. i. 
 
i'40 Magna Charta. [Ch. 
 
 exist,^ dated at Windsor the loth of May, in the i6th year of 
 his reign, about a month before ihe meeting at Runnymede, 
 in which he attempted to detach the barons from the confe- 
 deracy against him, by promising to them and their retainers 
 specially what was afterwards granted to all the freemen of 
 the realm : * Sciatis nos concessisse baronibus nostris qui 
 contra nos sunt quod nee eos nee homines suos capiemus, 
 nee dissaisiemus, nee super eos per vim vel per arma ibimus, 
 nisi per legem regni nostri, vel per judicium parium suorum 
 in curia nostra.^ 
 
 (5) Nisi per legale judicium pariu?n suorum y vel per legem 
 terrae. These words, which refer to and govern all that 
 precedes, have been variously interpreted. Sir Edward Coke 
 renders them, * unless it be by the lawful judgment, that is, 
 verdict of his equals (that is, men of his own condition), or 
 by the law of the land (that is, to speak it once for all), by 
 the due course and process of law.' The 'judicium parium' 
 of Magna Charta is a phrase of wide signification, — the 
 enunciation of a general legal principle rather than the 
 technical definition of a mode of trial. ' It lay at the founda- 
 tion of all German law ; and the very formula here used is 
 probably adopted from the laws of the Franconian and Saxon 
 Caesars.'^ But the mode of ' trial by peers,' with which the^ 
 English people had gradually become familiarised since the 
 Norman Conquest, and which Henry II. had made the esta- 
 blished practice in both civil and criminal causes, was that of 
 recognition by jury. It is probable, therefore, that by * judi-^ 
 cium parium,' trial by jury — of course in that stage of deve- 
 lopment only to which it had reached in the reign of John — 
 was specially, though not exclusively, intended. The regular- 
 holding at short intervals of recognitions of novel disseisin, 
 mort d'ancestor, and darrein presentment, was demanded by 
 
 ^ Rot. Pat. 16 Joh. part i. m. 3. d. n. 2., printed in Blackstone's Introduc- 
 tion to the Charters. 
 
 " Stubbs, Const. Hist. i. 537. Cf. the Constitution 'De Beneficiis' of 
 Conrad the Salic (a.d. 1024 — 1036): Omnibus, &c., praecipimus et firmiter 
 statuimus ut nullus miles episcoporum, abbatum, abbatissarum, marchionum 
 vel comitum, vel hominum, qui beneficium de nostris publicis bonis aut de 
 ecclesiarum praediis nunc tenent aut tenuerint, aut hactenus injuste perdiderint, 
 tarn de nostris majoribus valvassoribus, quam eorum militibus sine certa et con- 
 victa culpa suum beneficium perdat, nisi secundum consuetudinem antecessorum 
 nostrorum et judicium parittnt suorujji. . . Si ccntentio fuerit de beneficio 
 inter capitaneos, coram imperatore definiri debet ; si vero fuerit contentio inter 
 minores valvassores et majores de beneficio, in judicio f avium suorum definiatur 
 per judicem curiae. — (Cujacius, Dc Feudis, Lib. V., cited in Kriegel's ed. of 
 \.\\Q Corpus Juris, torn, iii., p. 88o, seq.) Similarly, Lothair II. declares: 
 Sancimus ut nemo miles adimatur de possessione sui beneficii nisi convicta 
 culpa quae sit laudanda. per judicium parium suorutn sicut supra dictum est. 
 In the so-called ' Leges Henrici Primi ' (xxxi. 7), we find the same principle 
 expressed in nearly the same words : Unxisqmsque per pares suos jj/dicavdus est. 
 
IV. Magna Chart a. 141 
 
 the barons (Art. 8), and granted by the Charter (Arts. 18, 19) ; 
 and it is further provided that earls and barons shall be 
 amerced only by their peers, and all other men by the equi- 
 valent jury of lawful men of the neighbourhood (Magna 
 Charta, Arts. 21, 22). The words 'judicium parium' un- 
 doubtedly included the right of the great barons, as a matter 
 of Parliamentary privilege, to be tried by their fellow barons, 
 in all Pleas of the Crown, in the great court of the King. 
 But they included also the right of every subject to be tried 
 by a jury of his countrymen, in both criminal and civil suits. 
 As regards civil matters, pleas between subject and subject, 
 the general body of the freeholders were all 'pares,' and 
 they could try, as jurors, any such pleas, whether the parties 
 were barons or not ; and in this case tbe doctrine that a 
 baron could only be tried by his fellow barons, did not apply. ^ 
 Vel per legem terrae."^ The "judicium parium' was not*-/ 
 applicable in all cases, as where trial by battle was legally 
 demanded, or judgment went by default, or where there was 
 no question of fact but merely a demurrer raised on a question 
 of law, all of which were proceedings * per legem terrae.' In 
 the reign of Edward III., the words were expounded by ■ 
 several statutes to mean * by due course of law,' ' by indict- 
 ment or presentment of good and lawful men of the neigh- 
 bourhood, or by writ original at the common law.' ^ 
 
 (6) Nulli vende?nus, nulli negabifnus, aiit diferemus, rectum 
 aut justiciam. ' This is spoken,' remarks Sir Edward Coke, 
 *in the person of the King, who, in judgment of law, in all 
 his courts of justice is present, and repeating these words;' 
 wherefore all men, for all kinds of injuries, may have justice 
 and right, 'freely without sale, fully without denial, and 
 speedily without delay.' The proviso was probably mainly 
 directed against the bribes or fines which were anciently paid 
 to delay or expedite judicial proceedings, many instances of 
 which are given in Madox's History of the Exchequer ^ ch. xii. 
 The words ' to none will we sell ' were intended to abolish 
 the fines paid for procuring right or judgment ; ' to none will 
 we deny,' referred to the stopping of suits and the denial of 
 writs; 'to none will we delay' meant the delays caused 
 either by the counter-fines of defendants (who sometimes 
 outbad the plaintiffs), or by the will of the King. This 
 
 ^ Reeves (ed. Finlason), i. 285. 
 
 ' [Bigelow, Hist, of Procedure in Eng., p. 155, n. 3, on this clause of Mag. 
 Chart., argues that the expression per legem terra ' simply required judicial 
 proceedings, according to the nature of the case,' and observes that 'jury trial 
 in criminal cases had not come into use at this time, except as matter of special 
 grace on the part of the king.' — Ed.] 
 
 * See especially 25 Edw. III. c. 4. 
 
142 
 
 Magna Charta, 
 
 [Ch. 
 
 clause of the Charter, sajis Madox, was so far effectual that 
 fines for law proceedings bec^e more moderate, and the evils 
 alluded to gradually fell in^o disuse. In concluding his 
 minute illustrations of these provisions of the Charter, Sir 
 Edward Coke quaintly observes : * As the gold-finer will not 
 out of the dust, threds, or shreds of gold, let passe the least 
 crum, in respect of the excellency of the metall : so ought not 
 the learned reader to pass any syllable of this law, in respect 
 of the excellency of the matter.' ^ 
 
 IV. — Cities, Borotighs, Commerce. 
 
 Liberties of 1 3. The City of London shall have all its ancient liberties 
 on on, QT^c. ^^^ ^^^^ customs, and so of all other cities, boroughs, towns, 
 and ports. 
 
 33. All wears ('kydelli') in the Thames and Medway 
 and throughout England shall be put down, except on the 
 sea-coast. 
 
 The object of this was to prevent private appropriations of 
 the right of fishing in public rivers. The removal of wears 
 from the Thames and Medway is directed in several ancient 
 charters besides the present, and by many statutes. 2 [See Law 
 Magazine and Review, No. cclxxii., for May, 1889, art. The Law 
 of River and Lake Fishery, by W. H. Brown, M.A. — Ed.] 
 
 Uniformity 
 of weights 
 and mea- 
 
 35. There shall be one standard of measures and one 
 standard of weights throughout the kingdom.^ 
 
 Uniformity of weights and measures had been enjoined in 
 an Assize of Richard I. ; and in the Articles of Visitation, 
 issued by that King in 1194, the itinerant justices were 
 directed to inquire ' de vinis venditis contra assisam, et de 
 falsis mensuris tam vini quam aliarum rerum.' (Hoveden, iii. 
 263, iv. 33.) On the numerous statutory regulations of 
 weights and measures subsequent to Magna Charta, see the 
 Seventh Annual Report of the Warden of the Standards, 
 1872-3. The law on the subject is now embodied in the 
 consoHdating 'Weights and Measures Act, 1878' (41 & 42 Vict, 
 c. 49), [as now amended by 52 & 53 Vict. c. 21, the Weights 
 and Measures Act, 1889. The tenor of modem legislation 
 
 ^ Coke, Second Institute, i. 77 ; Thomson, Magna Charta ; Creasy, English 
 Constitution [, ch. xi.]. 
 
 "^ Stow, Survey, i. c. viii. ; Thomson, Magna Charta, p. 214. 
 
 ^ [Pearson, Hist. Eng., Early and Middle Ages, ii. 89, remarks on art. 35 as 
 being ' so much in advance of possibilities that it has never yet been carried 
 out.' — Ed. 
 
IV.] Magna Chart a, 14; 
 
 on this subject, as on some others practically affecting all 
 ranks of the population, has been somewhat exclusively direc- 
 ted to the benefit of the so-called poor. It seems difficult to 
 understand why the so-called rich should not be protected 
 against false weights, but, at least for the important matter of 
 bread, recent legislation pays no heed to any except the 
 ' masses,' leaving the * classes ' practically unprotected, the 
 bread which they mostly purchase being, by what seems a freak 
 of the Legislature, styled ' fancy ' bread, and not subject to 
 any restrictions as to true weight. There seems no good 
 reason for confining the right to have bread weighed to the 
 one case of bread sold over the counter, which, as a rule, only 
 protects the poorer purchasers. Weights and scales could 
 as easily be carried in a baker's basket or hand-cart as in a 
 coal-merchant's waggon, and then rich and poor alike could 
 exercise the right at present limited to the case of 
 coal. — Ed.] 
 
 41. All merchants shall have liberty safely to enter, to /r^r<?/^« 
 dwell and travel in, and to depart from, England, for the '«^'^^^'^^-^- 
 purposes of commerce, without being subjected to any evil 
 tolls, but only to the ancient and allowed customs, except 
 in time of war. On the breaking out of war, merchants of 
 the hostile State who may be in England shall be attached, 
 without damage to their bodies or goods, until it be known 
 how our merchants are treated in such hostile State ; and 
 if ours be safe, the others shall be safe also. 
 
 This provision in favour of merchants and for the advance- 
 ment of trade has been justly eulogised, as showing great 
 breadth and liberality in days when the feudal barons through- 
 out Europe were accustomed to oppress and pillage com- 
 merce. In Henry IIL's first re-issue of the Charter, the 
 words 'nisi publice antea prohibiti fuerint' were inserted 
 immediately after ' Omnes mercatores.' But such prohibition, 
 observes Sir Edward Coke, must be by the common or public 
 council of the realm, that is, by Act of Parliament. 
 
 V. — Purveyance and otiur Royal Exactions. 
 
 28. No constable or other Royal bailiff shall take any purveyance, 
 man's corn or other chattels without immediate payment, 
 unless the seller voluntarily give credit. 
 
 30, 31. Nor shall the King, his sheriffs, or bailiffs, take 
 
144 Magna Charta, [Ch. 
 
 any horses or carriages of freemen for carriage, or any 
 man's timber for castles or other -uses, unless by consent of 
 the owner. 
 
 Purveyance (from pourvoir^ to provide) was a prerogative 
 enjoyed by the Crown * of buying up provisions and other 
 necessaries, by the intervention of the king's purveyors, for 
 the use of his royal household, at an appraised valuation, 
 in preference to all others, and even without the con- 
 sent of the owner, and also of forcibly impressing the 
 carriages and horses of the subject to do the king's business 
 on the public road, . . . upon paying a settled price ; a pre- 
 rogative which prevailed pretty generally throughout Europe.' ^ 
 In Henry III.'s charters the restrictions on purveyance were 
 modified and rendered less stringent. The abuses to which 
 this system gave rise were manifold and grievous. The evil 
 was never completely suppressed until the prerogative itself 
 was resigned by Charles II. The right was even extended 
 to men's labour as well as to their goods. Thus, Edward III. 
 granted a commission to WiUiam of Walsingham to impress 
 painters for the works at St. Stephen's Chapel, Westminster, 
 * to be at our wages as long as shall be necessary,' and 
 directed all sheriffs to arrest and imprison such as should 
 refuse. Edward IV. granted a similar commission for the 
 impressment of workers in gold for the Royal household.^ 
 
 Bridges. 23. Neither a town nor any man shall be distrained to 
 
 make bridges or banks, unless anciently and of right bound 
 
 to do so. 
 
 Fcrmof 25. Counties, hundreds, wapentakes, and trethings shall 
 
 counties,^c g^^j^^^ 3^^ ^j^g ancient ferms, without any increase, except 
 
 the manors of the Royal demesne. 
 
 It was customary for the King to farm out by the year, to 
 the highest bidder, the sheriffdoms of counties and other 
 offices. The officials recouped themselves by the exaction 
 of excessive fines and fees, so that the people were the real 
 sufferers by the exaction of an increased rental. 
 
 [Trethings, supra^ = Ridings. — Ed.] 
 
 D:bti due to 9- Land or rent shall not be seized for any debt due to the 
 
 i^e Crown, Crown, SO long as the chattels of the debtor will suflfice ; 
 
 sureties shall not be distrained while the principal debtor is 
 
 1 Blackstone, Comm. i. 287. 
 
 2 Rymer, t. vi. 417 ; t. xi. 852 j Hallam, Middle Ages, iii. 149. 
 
IV.] Magna Charta. 145 
 
 capable of payment, and if they have to pay, they shall be 
 indemnified out of the lands and rents of their principal. 
 
 10, II. Debts due to the Jews are to bear no interest ^«^ ^^ ^^'^ 
 during the minority of the heir of a deceased debtor ; the '^^' 
 widow shall have her dower, and pay nothing of the debt ; 
 and the children shall be provided with necessaries before 
 payment of the debt out of the residue. 
 
 In all debts due to the Jews, the Crown had an ulterior 
 interest. They were the King's bondmen, and are so de- 
 scribed in 'Les Estatuz de Jeuerie' of Edward I.'s reign, 
 which direct that every Jew of the age of twelve years and 
 upwards shall pay threepence annually * de taillage au Rey ky 
 serf il est,' and that they shall not pay scot or lot, or be taxed 
 with the men of the cities or boroughs, ' cum il sunt taillables 
 al Rey comes ses serfs e a nul autres for a Rey.' (Stat, of the 
 Realm, pp. 221-2.) Under the Norman and early Angevin 
 Kings the Jews were employed * as a sponge ' to suck up the 
 wealth of their subjects, and be periodically squeezed to 
 supply the wants of the Crown. Madox {History of the Ex- 
 chequer^ 2nd ed., ii. 221 — 261) thus sums up their position as 
 disclosed by the Exchequer records : * The King seemed to 
 be absolute lord of their estates and effects, and of the per- 
 sons of them, their wives, and children. 'Tis true he let 
 them enjoy their trade and acquests, but they seemed to 
 trade and acquire for his profit as well as their own ; for at 
 one time or other their fortunes, or great part of them, came 
 into his cofiers.' [Mr. Bridges of Oriel, in his very interest- 
 ing essay on TJie Jews of Europe in the Middle Ages^ tells us 
 that the ' employment of Jews as an engine of taxation was 
 far more thoroughly and systematically carried out in England, 
 than in any other country. . . . But it was not till the reign of 
 Henry II. that the control of their affairs absorbed the cares 
 of a special office of state. The Scaccarium Judaismi, or 
 Exchequer of Jewry, was the name of this office ; it was a 
 branch of the General Exchequer ; but it was managed by 
 its own justiciaries (at first both Jew and Christian, after- 
 wards Christian only), who enjoyed all the immunities of 
 barons of the Exchequer ; it had branch offices in the chief 
 cities of the realm and a numerous service of clerks and 
 treasurers.' — Oxford Essays for 1857, pp. 218 j^^.— Ed.] 
 
 26. On the death of a tenant in capita of a lay fee, in- 
 debted to the Crown, the sheriff or other bailiff may attach 
 the chattels of the deceased found upon his lay fee, to the 
 
 C.H. L 
 
146 
 
 Magna Ckarta, 
 
 [Ch. 
 
 value of the debt, by the view of lawful men ; and nothing 
 shall be removed until the whole debt be paid, the surplus 
 being left to the executors to fulfil the testament of the 
 deceased. If nothing be found due to the King, all the 
 chattels shall go to the use of the deceased, saving to his 
 wife and children their reasonable shares. 
 
 The rigour with which the King's debts were exacted and 
 levied was the subject of frequent complaints, and is strongly 
 animadverted upon in the Mirror of fustics (c. v. s. 2. art. 
 xxviii). 
 
 General 
 application. 
 
 Enacting 
 woyds and 
 oath. 
 
 Temporary 
 provisions. 
 
 Mode of 
 enforcing the 
 Charter. 
 
 By clause 60, to which reference has already been made, 
 all the foregoing rights and liberties granted to the King's 
 vassals are expressly extended to the whole nation. The 
 Charter concludes : * 63. Wherefore we will and firmly enjoin 
 that the Church of England be free, and that all men in 
 our kingdom have and hold the aforesaid liberties, rights, 
 and concessions, well and in peace, freely and quietly, fully 
 and wholly, to them and their heirs, of us and our heirs, in 
 all things and places for ever as aforesaid.' This is followed 
 by the oath to be taken by the King and the barons, 
 mutually to observe all the articles of the Charter, in good 
 faith and without evasion. 
 
 Clauses 47, 48, 49, 50, Si, 52, 53. 55, 5^, 57, 58, 59, and 
 62 have been omitted from this summary, as being mainly 
 of a special and temporary character, but may be found in 
 full in the Latin text. They relate principally to the reform 
 of the Forests, the surrender of charters and hostages placed 
 in the king's hands as securities, the dismissal of his foreign 
 servants and mercenary troops, the rights of the Welsh and 
 of the King of Scots, and the grant of a general political 
 amnesty. 
 
 There remains only the 6ist clause, by which means were 
 provided for enforcing the due observance of the Charter. 
 The question, how should the compact between the King 
 and his people be enforced, was at once difficult and 
 pressing. The King was left in possession of the Regal 
 power and dignity; experience had shown the ease with 
 
IV.] Magna Chart a, i47 
 
 which former sovereigns had broken their most solemn 
 written engagements ; and the insincerity of John was 
 notorious. At this period there were no effective Consti- 
 tutional checks against the King ; and so a rude device was 
 hit upon, in its nature really impracticable, by which John 
 granted, in effect, to all his subjects a qualified liberty of 
 rebellion. The whole baronage were to elect a Council of 
 Twenty-five barons charged to take care with all their The twenty- 
 might that the provisions of the Charter were carried into-^^^^^^'^ 
 effect. If the King or any of his officers should violate the 
 Charter in the smallest particular, these Barons, or four of 
 their number, were to complain to the King, or in his 
 absence to the Justiciar, and demand instant redress. If 
 no redress be given within forty days, * the said five-and- 
 twenty barons, together with the commonalty of the whole The national 
 land {communa totius terrae) shall distrain and distress us ^^^%^ ^^^^^' 
 in all possible ways, by seizing our castles, lands, posses- 
 sions, and in any other manner they can, till the grievance 
 is redressed according to their pleasure, saving harmless our 
 own person and the persons of our queen and children ; and 
 when it is redressed they shall obey us as before. And 
 any person whatsoever in the land may swear that he will 
 obey the orders of the five-and-twenty barons aforesaid in 
 the execution of the premises, and will distress us, jointly 
 with them, to the utmost of his power ; and we publicly 
 and freely give liberty to anyone that shall please to swear 
 this, and never will hinder any person from taking the 
 same oath. As to all those in the land who will not of 
 their own accord swear to join the five-and-twenty barons 
 in distraining and distressing us, we will issue orders to 
 make them take the same oath as aforesaid.* 
 
 John soon gave evidence of his intention to break from John at- 
 the Charter if he could. He applied for aid to the Pope, evTde Ae 
 now his suzerain, who declared the Charter void, excommu- Charter 
 nicated the Barons, and suspended Archbishop Langton. 
 The City of London also, which had ardently supported the 
 Barons in their demands, and whose Mayor was one of the 
 
 L 2 
 
148 Magna Charta. [Ch. 
 
 council of twenty-five executors, was laid under interdict. 
 
 and renews In addition to these spiritual arms, John sent for a body of 
 
 ' mercenaries and renewed the Civil war. The mercenaries, 
 
 as professional soldiers, proved themselves an overmatch 
 
 The Barons for the Barons with their half-trained retainers. In this 
 
 crown to extremity, the Barons determined to renounce their alle- 
 
 Louis of giance to John and to dethrone him by the aid of Louis, 
 
 eldest son of Philip Augustus of France, to whom they 
 
 made a formal offer of the English crown.^ Louis at once 
 
 sent aid to the Barons, and himself landed in England on 
 
 Death of the 2ist of May, 12 16. But for John's unexpected death, 
 
 Oct 'i2?6. on the 19th of October following, it is highly probable that 
 
 a change of dynasty would have been carried out. 
 Accession of At the death of John things looked badly for the succes- 
 sion of his son Henry, then only nine years old. Louis was 
 in the south, the Scots in the north, as enemies, and the 
 Welsh March was for a time the only place of refuge for 
 the Angevin dynasty. Without delay, on the 28th of Oct. 
 I2i6,the boy Henry was crowned at Gloucester by the Papal 
 Earl of legate Gualo ; ^ and William Marshal, Earl of Pembroke, 
 Rector Regis assumed, with the assent of the friendly barons, the title of 
 et Regni. Rector^Regis et Regni. The Regent, by his politic conduct, 
 contrived, within the space of a twelvemonth, to bring over 
 the disaffected baronage to the King's side, and to induce 
 Louis, after the ' Fair of Lincoln ' (May 29, 12 17), and the 
 loss of his reinforcements in the naval engagement off 
 Dover (Aug. 24), to abandon his pretensions to the English 
 crown. 
 Henry lll.'s One of the first acts of the Earl of Pembroke had been 
 Charter, to renew the Great Charter at a meeting of the Royalist 
 1216. prelates and barons held at Bristol on the 24th November, 
 
 1 2 16, a few weeks after John's death. The alterations in 
 
 1 Ann. Waverl. 283 ; Rymer, i. 140; Matt. Paris \^Chron. MaJ.y ed. Luard, 
 ii. 647. They cursed John and the Pope, and, after a little hesitation whom 
 to elect, chose Louis. — Ed.] 
 
 2 [This act of the Legate was undoubtedly an infringement of the rights of 
 the See of Canterbury, but was probably acquiesced in by all parties for the 
 sake of the Papal confirmation thereby given to Henry's succession at a very 
 critical moment. — Ed.] 
 
IV.3 Magna Chart a. 149 
 
 the reissue are numerous. The merely temporary provi- 
 sions of John's charter were omitted as a matter of course. 
 But there were also omitted the 12th and 14th clauses, 
 forbidding the levying of extraordinary aids without the 
 consent of the Comfmme Concilium regni^ and regulating the 
 mode in which that Council was to be summoned, as well 
 as all other clauses which in any way restricted the King's 
 power to increase his revenue. In clause 42 of the re-issue 
 the King's ministers assign as their reason for the omission, 
 that these articles being ' gravia et dubitabilia,' the prelates 
 and barons had thought it best that the consideration of 
 them should be respited until such time as, together with 
 such other things as pertained to the welfare of all, they 
 could be fully considered and established. The 42nd clause 
 of John's charter, in restraint of the King's prerogative 
 to prevent any of his subjects from quitting the kingdom, 
 and the 45th, as to the qualifications of the King's Justices, 
 were also left out. The alterations in the Feudal clauses 
 are characterised by the greater authority conceded to the 
 mesne lords over their sub- vassals, a retrograde policy 
 which was probably dictated by a desire to conciliate the 
 baronage.^ 
 
 In the following year (12 17), after Louis had finally Henry III., s 
 quitted the kingdom, the Great Charter was again re- charter, and 
 issued, with many further important omissions, altera- ^^^^f^"^ °^ 
 tions, and additions. The Forest clauses, which had been 121 7. 
 retained in the preceding Charter, were now omitted, being Omissions. 
 embodied in the Charter of the Forest, which was issued 
 about the same time.^ The respiting clause (42) was also 
 
 1 A duplicate of Henry IH.'s first charter was transmitted to Ireland, under 
 the seals of the Legate and the Protector, for the benefit of the king's faithful 
 subjects there, with some few alterations which the local necessities of that 
 island required. — Blackstone, Introduction to the Charters. 
 
 2 No Forest' Charter was issued by John separately from the Forest clauses The Forest 
 <44, 47, 48) of Magna Charta. By these, in addition to the abolition of com- Charter, 
 pulsory attendance at the Forest Court already referred to, all forests made 
 
 during John's reign were deafforested ; a searching inquiry into the Forest usages 
 to be made by an inquest of 12 sworn knights was promised, and all bad 
 customs were at once to be abolished. The first Forest Charter was issued by 
 the Earl of Pembroke, in Hen. III.'s name, on the i6th November, 1217. 
 
ISO 
 
 Magna Charta. 
 
 [Ch. 
 
 left out, provision- being made in this and the Forest 
 Charter for several of the matters previously respited, and 
 as to the other matters, their absence was to some extent 
 supplied by a new clause in this re-issue (46), saving all 
 Alterations, existing liberties and free customs. The chief alterations 
 are: In the 'essential clauses' of John's charter (39, 40)^ 
 the words already referred to {supra, p. 138) were added,, 
 apparently for the sake of greater accuracy ; and, probably 
 as a concession to the old Feudal party, who regarded with 
 dislike all extension of the central Royal jurisdiction, the 
 assizes of the Itinerant Justices were reduced from four to 
 one annually ; and the direction for the election by each 
 county of four knights to take the recognitions is omitted,, 
 the knights of the county generally being substituted. 
 
 In addition to the 46th, the other new clauses in Henry's 
 second Charter are the 39th, 42nd, 43rd, 44th, and 47th. By 
 clause 39 land was forbidden to be aliened by gift or sale, 
 unless sufficient were retained to answer for the services 
 due to the superior lord of the fee.^ The 42nd directs that 
 the County Court shall be holden but from month to month, 
 the Sheriff's Tourn but twice in the year, and the view 
 
 New 
 clauses : 
 
 Alienation 
 of land. 
 
 County 
 Court. 
 
 Sheriff's 
 Tourn. 
 
 It contains 17 articles, by which the most grievous burdens of the Forest laws^ 
 as formulated by Hen. II. in the Assize at Woodstock, 1184, were either 
 repealed or mitigated. The forests were still suffered to remain * an oasis of 
 despotism in the midst of the old common law ; ' but the restriction on the 
 jurisdiction of the Forest Courts imposed by the 44th clause of John's charter 
 was maintained, and all lands afforested by Richard and John were to be at 
 once deafforested, as well as such lands afforested by Henry II. as were not 
 within the bounds of the Royal demesne. The penalty of death or mutilation 
 was forbidden for the future, fine, imprisonment, or banishment from the realn* 
 being substituted (art. 10) ; but the cruel mutilation of dogs, in order to pre- 
 vent them from being used in hunting, was expressly retained and regulated 
 (three claws of the forefoot were to be cut off). See the Charter of the Forest, 
 and the Assize of Woodstock, with which it should be compared, in Select 
 Chart. 150, 339. 
 
 ^ This prohibition applied both to tenants in capite and to tenants of mesne 
 lords. It was doubted whether tenants in capite could aliene any part of their 
 lands without the Royal licence, but by statute ist Edward III. c. 12, it was 
 declared that the king should not hold such lands as forfeit, but that a reason- 
 able fine should be paid into the Chancery. With regard to tenants of mesne 
 lords, this prohibition of Magna Charta was repealed by the statute QuiaEfiip- 
 tores, i8th Edward I., which put a stop to sub-infeudation and gave free 
 liberty of alienation in whole or in part, with reservation of the services to the 
 superior lord of the fee. Stipra^ p. 67. 
 
IV.] Magna Charta, 151 
 
 of Frankpledge at Michaelmas ; regulations probably die- Frank- 
 tated by the jealousy of the feudal lords exercising local ^ ^ ^^^' 
 franchises. 
 
 The 43rd restrains fraudulent gifts in mortmain to Mortmain 
 religious corporations : * It shall not be lawful from hence- 
 forth to any to give his lands to any religious house, and 
 to take the same land again to hold of the same house ; nor 
 shall it be lawful to any religious house to take the lands of 
 any, and to leave the same to him of whom he received it. 
 If any from henceforth give his lands to any religious house, 
 and thereupon be convict, the gift shall be utterly void, and 
 the land shall accrue to the lord of the fee.' ^ 
 
 The 44th clause asserts the King's right to scutage ' sicut Scutage. 
 capi consuevit tempore Henrici regis avi nostri : ' and the 
 47th directs the immediate destruction of the * ^^j^n? [Adulterine] 
 adulterina' (a phrase forcibly recalling the disorders ofdemoUshed^ 
 Stephen's reign), either erected or rebuilt since the com- 
 mencement of the Barons* war. 
 
 In the 9th year of his reign, Henry, who was now Henry III. 's 
 declared of age, re-issued Magna Charta and the Charter Quarter 
 of the Forest, in consideration of the grant of an aid of a 1225. 
 ' fifteenth.' They contained only two alterations of import- ^ ^^'^'^'^^ • 
 ance : (i) In the preamble, the words * spontanea et bona 
 
 ^ The term mortmain, in mortud manUy applies generally to alienations of Mortmain. 
 lands or tenements to aizy corporation, sole or aggregate, ecclesiastical or tem- 
 poral ; but it is used specially with reference to religious houses, whose enor- 
 mous acquisitions of landed property and subtle evasions of the law gave rise to 
 a series of restraining enactments. The earlier measures seem to have been 
 specially directed against the fraud so frequently committed upon the feudal 
 lords by pretended and colourable donations to religious houses with the in- 
 tention of receiving the lands back again freed from the feudal obligations. 
 Henry II. endeavoured to check this abuse by exacting scutage and the other 
 feudal dues from the lands held in chief by the clergy (Const, of Clarendon, c. 
 xi.) ; and the present clause of the Great Charter seems to refer to fraudulent 
 as opposed to innocent alienations. But its effect, as expounded in the follow- 
 ing reign by the Statute de Religiosis, 7th Edward I., was to prohibit gifts of 
 land to religious houses generally — i. e. , even in cases where the religious house 
 did not give the land back to hold of the house, but kept it in its own hands. 
 The clerical evasions of this statute were successively and at length effectually met 
 by the 13th Edward I. (Westminster II.) and the 15th Richard II. c. 5. — Coke, 
 2 Inst. 74 ; Reeves (ed. Finlason), i. 274. [Creasy, Eng. Const, ch. xi. — Ed. 
 
152 
 
 Magna Charta, 
 
 [Gh. 
 
 Subsequent 
 confirma- 
 tions of the 
 Charter. 
 
 voluntate nostra* were substituted for the Uonsilio ;* a 
 change which, though capable of being interpreted as an 
 assertion on the King's part of his independence of the 
 counsel of his baronage, was, with greater probability, 
 intended to obviate any subsequent evasion by him on the 
 ground that his former Charters, having been granted by 
 others in his name during his minority, were no longer 
 binding on himself.^ (2) A final clause was added speci- 
 fying the grant of the * fifteenth ' as the price of the King's 
 concession : ' And for this our gift and grant of these 
 liberties and of other liberties contained in our charter of 
 liberties of the forest, the archbishops, bishops, abbots, 
 priors, earls, barons, knights, freeholders, and all our sub- 
 jects have given unto us the fifteenth part of all their 
 moveables. And we have granted unto them for us and 
 our heirs that neither we nor our heirs shall procure or do 
 anything whereby the liberties in this charter contained 
 may be infringed or broken ; and if anything be procured 
 by any person contrary to the premises, it shall be had of 
 no force nor effect.' ^ 
 
 It is in the form in which it was promulgated in the 
 9th Henry III. that Magna Charta was confirmed by 
 Edward I. in the twenty-fifth year of his reign. The 
 copy which heads our statute book is taken from an 
 Inspeximus of the Charter, so called from the letters patent 
 prefixed in the name of Edward I., ^Inspeximus Magnam 
 Chartam domini Henrici quondam regis Angliae patris 
 nostri de libertatibus Angliae in haec verba,' Regarding 
 the Charter as the palladium of the nation's liberties, the 
 people for centuries were ever ready to purchase its 
 confirmation from successive Kings by the grant of a 
 liberal subsidy. In this way it was solemnly confirmed no 
 
 * Post multas vero sententiarum revolutiones, communiter placuit, quod rex 
 tam populo quam plebi libertates, prius abeo puero concessas, jam major foetus 
 indulsit. — Ann. Dunstapl. p. 93, s. a. 1225 ; Select Chart. 314. 
 
 * Stat, of the Realm, Charters of Liberties, 22 — 25. 
 
IV.] Magna Charta. 153 
 
 less than thirty-seven times down to the second year of 
 Henry VI.^ 
 
 ^ The Charter was confirmed 
 6 times by Henry III. 
 3 „ Edward I. 
 14 „ Edward III. 
 
 6 times by Richard II. 
 6 „ Henry IV. 
 Once by Henry V. 
 Henry VI. 
 
 'To have produced it,' remarks Sir James Mackintosh, *to have preserved 
 it, to have matured it, constitute the immortal claim of England upon the es- 
 teem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, 
 with all the truth which they have revealed, and all the generous virtue 
 which they have inspired, are of inferior value when compared with the sub- 
 jection of men and their rulers to the principles of justice, if indeed it be not 
 more true that these mighty spirits could not have been formed except under 
 equal laws, nor roused to full activity without the influence of that spirit which 
 the Great Charter breathed over their forefathers.' (Hist. Eng. i. 221.) 
 [Lingard, iii. p. 58 (ed. 1851), counts the confirmations as thirty-eight, 
 ascribing fifteen to Edward III., instead of fourteen, as here reckoned.] 
 
 [I have left the text as it stood, on the homage by John, only altering 
 Pandulf 's title from Legate to Envoy, as, with Greenwood, Cath. Pet. , v. 588, 
 I see no proof that he was Legate in 121 5, and he is not so described in Magna 
 Charta. I should not myself admit that in the Middle Ages any disgrace 
 attached to holding of the Roman See any more than to holding of the Roman 
 Empire. But John's character gave the submission a different aspect from that 
 which it might have borne under another King. The cases of Peter of Arragon 
 and the King of Man, cited by me in the present edition, shew that there was 
 nothing unusual in the action of the Roman See with regard to the Crown of 
 England. Under Innocent III., indeed, such action was rather to be expected 
 than otherwise, where the circumstances were favourable to advancing a claim 
 on the part of the Holy See. The much earlier case of the Normans in 
 Apulia and Sicily, and the Hungarian and Bulgarian cases, shew that the 
 practice of claiming Kingdoms and Principalities to be held as fiefs of the 
 Roman See, or even creating them on such terms, was no innovation on 
 Innocent's part, but went back, in the traditions of the Papacy, at least as far 
 as Gregory VII. — Ed.] 
 
154 
 
 CHAPTER V. 
 
 ADMINISTRATIVE SYSTEM UNDER THE NORMAN AND 
 PLANTAGENET KINGS. 
 
 The King At the head of the whole Administrative system was the 
 fook^parHn ^^^g himself, personally taking part not only in legislation 
 all branches but in fiscal, judicial, and every other kind of executive 
 
 ofadmims- , . , .. .., , \. , ^ ^ ■, 
 
 tration. Dusmess/ It was not till long after the Conquest that the 
 kings of the English ceased, occasionally at least, to attend 
 and take part in the proceedings of their Courts of Law. 
 Henry II. was accustomed to assist in dispensing justice 
 both in the Curia Regis and in its financial committee the 
 Exchequer.^ Some of his sayings on the judgment seat 
 have been preserved. In a case tried before him, shortly 
 after his accession to the throne in 1154, the defendant alleged 
 that a charter of Henry I. produced in evidence had been 
 improperly obtained. 'Per oculos Deiy exclaimed the 
 King, taking the Charter into his own hands, * si cartam 
 hanc falsam comprobare posses^ lucrum mille librarian 
 mihi in Anglia conferres'^ In another case, a dispute, be- 
 
 ^ The Norman period, comprising the reigns of the Conqueror and his three 
 successors, was *the epoch of the growth of a new administrative system, 
 having the source of its strength in the royal power.' Stubbs, Const. Hist. i. 
 337- [Of this period Green says, Hist. Eng. People^ i. 124, 'It was in these 
 years of subjection that England first became really England. . . . The new 
 nation grew to a sense of its oneness, and this consciousness was strengthened 
 by the political ability which in Henry the First gave it administrative order 
 and in Henry the Second built up the fabric of its law. ' — Ed. J 
 
 2 Domini Regis Curia, in qua ipse in propria persona jura decernit. Dial. 
 
 de Scac. i. c. 4. 
 
 A trial before ^ Walter, Abbot of St, Martin of Battle v. Gilbert de Balliol {Chxon. Monas- 
 
 Henry II. in ^^"i de Bello, 106 ; Bigelow's Placita Anglo-Normannica, 175). This case is 
 
 person. interesting for the light which it throws alike on the working of the feudal 
 
 > tenures, the system of judicature, and the social aspects of the 12th century. 
 
Ch. v.] Administrative System, 155 
 
 tween Baldwin, Archbishop of Canterbury and the Abbot 
 of St. Edmund as to a territorial franchise, we are told 
 that the King, puzzled by the production of conflicting 
 charters, declared * Nescio quid dicam : nisi ut cartae ad 
 invicem pugnent' And when the Archbishop subsequently 
 refused to accept the Abbot's offer to submit the dispute 
 to the verdict of the counties of Norfolk and Suffolk, the 
 King angrily arose and left the court, saying, * Qui potest 
 capere capiat^ ^ King John personally decided a case in 
 
 The Abbot of St. Martin had acquired certain lands, partly by purchase and 
 partly by gift, from a sub-tenant of the Manor of Barnhorn, with the consent 
 of Withelard de Balliol, who held the same of the Count of Eu : and the dona- 
 tion had been confirmed by the Count and by the King (Henry I.). Withelard 
 afterwards disseised the Abbot for refusing 'exactions,' and no restitution was 
 obtainable either during the remainder of Henry I. 's reign, or under Stephen, 
 * in whose time justice was little regarded, and he who was strongest got most. ' 
 On the accession of Hen. II. * qui avita tempora renovaret,' Abbot Walter 
 renewed his claim against Gilbert de Balliol, the heir of Withelard, and the 
 King grants a writ to John, Count of Eu, commanding him, personally or by 
 the Sheriff of Sussex, to do justice to the Abbot. The defendant manages by 
 various subterfuges to evade the trial ; and at length the plaintiff, with much 
 difficulty, gets the suit called up into the Curia Regis. But the King is unable 
 to attend personally, and the cause, though much litigated before the King's 
 Justices, is brought to no satisfactory conclusion. Ultimately the suit comes 
 before the King himself at Clarendon. The Abbot's case is stated by Osmund, 
 a monk of Battle, and Peter de Chriel, a knight, and the deeds of purchase 
 and donation and the charters of confirmation are read in Court. The de- 
 fendant objects that the deeds of his ancestors have no seal. Thereupon 
 Richard de Lucy, the Chief Justice (who was also, we are told, the Abbot's 
 brother), asks whether the objector himself has a seal, and on receiving an 
 afiirmative reply, sneers at the modern custom for every little knight to have 
 a seal, and overrules the objection. ('Moris,' inquit, 'antiquitus non erat 
 quemlibet militulum sigillum habere, quod regibus et praecipuis tantum com- 
 petit personis, nee antiquorum temporibus homines ut nunc causidicos vel in- 
 credulos malitia reddebat.') Undismayed, Gilbert proceeds to question the 
 confirmatory charter of Henry I. ; whereupon the King interposes with the 
 exclamation ' Per oculos Dei,' given in the text, and adds : * Si monachi per 
 similem cartam et confirmationem hujusmodi jus in praesenti loco scilicet 
 Clarendona, quem plurimum diligo, se habere possent ostendere, nihil esset in 
 quo eis juste possem contradicere, quo minus eis omnino dimitteretur.' Then 
 turning to the Abbot and his advocates, *'* Ite," inquit, "et consilio habito, 
 invicem conferte, si forte sit aliquid cui amplius quam huic cartae velitis inniti. 
 Non tamen vos puto ad praesens aliam quaesituros probationem." ' After this 
 expression of opinion from the Court, it is not surprising that the Abbot, 
 though he retired in obedience to the Royal command, quickly returned and 
 expressed his intention to produce no further proof but to take his stand upon 
 the charter. Judgment is given for the plaintiff, ' unanimi consensu totius 
 curiae, ' followed by a king's writ *ad quatuor mihtes qui tunc ex ejus prae- 
 cepto vicecomitatum Suthsexiae regebant,' directing them to ascertain the 
 boundaries of the lands in question, by the oaths of twelve men of the vicinage, 
 and then to reinstate the plaintiff. Which was accordingly done by Richard 
 de Chaaines, one of the four knights, ' sociorum suorum sibi vice commissa. ' « 
 
 * Archbishop of Canterbury v. Abbot of St. Edmund. Circa A.D. n86. 
 
156 Administrative System under the [Ch. 
 
 the Exchequer in the sixth year of his reign. Henry III. 
 frequently sat in Westminster Hall with his Judges ; and 
 several instances are recorded of criminal jurisdiction 
 exercised in person by John, Henry HI., Edward I., and 
 Edward H.^ Still the exercise of ordinary jurisdiction by 
 the King was an exception to the general rule. Edward 
 IV., we are told, sat in the King's Bench for three con- 
 secutive days, in order to see how his laws were executed, 
 but it is not said that he interfered in the proceedings.^ 
 By the usage of many centuries it has now been long an 
 undisputed principle that, although the King should be 
 present in a Court of Justice, he is not entitled to ' deter- 
 mine any cause but by the mouth of his judges, to whom 
 he has committed the whole of his judicial authority.' ^ 
 When James I. sat personally in court, and wished to inter- 
 fere, he was told by the judges that he could not deliver an 
 opinion.* 
 The justi- Next to the King in power and authority was his chief 
 minister, the Justiciar, the supreme administrator of law 
 and finance. He was ' the greatest subject in England,' 
 the representative of the King in all matters, and by virtue 
 of his office, lieutenant, viceroy, or regent of the kingdom 
 during the King's absence. The Justiciar was, as we have 
 seen,^ a new officer appointed by the Conqueror, not only 
 to carry on the government during his frequent absence 
 
 Chron. Jocelin. de Brakelonda, p. 37 (Camden Soc); Bigelow's Placita Anglo- 
 Normannica, 238. 
 
 ^ Allen on the Royal Prerogative, 92 ; Madox, Hist, of the Exch. i. 191 ; 
 Dialogus de Scacc. 1. i. c. 4 ; Palgrave, Eng. Com. i. 292. In early times 
 even Queens consort sometimes sat in court. Matilda, in the absence of Wil- 
 liam the Conqueror, held pleas in person in the County court (Domesday, 
 Heming, p. 512; 'coram Regina Matilda in praesentia iv. vicecomitum ). 
 The 'good Queen Maud,' wife of Henry I., was present at a trial in the Ex- 
 chequer between the men of Periton and the Abbot of Abingdon ( ' Quia rex 
 tunc in Normannia erat, regina, quae tunc praesens aderat, taliter hoc sigillo 
 suo confirmavit : Sciatis quod Faritius abbas de Abbendona in curia domini 
 mei et mea apud Wintoniam, in thesauro' &c. (Hist. Mon. Abingd. ii. 116 
 [Rolls Ser.], Bigelow's Plac. Ang. Norm. 99.) Henry HI.'s Queen also held 
 pleas in person (Spence, Equit. Jurisdiction, lOl, n.). 
 
 2 Stow, Chron. 416 (1631). 
 
 => Coke, 4th Inst. 73. 
 
 ■* Blackstone, iii. 41. 
 
 * SuprUy p. 77. 
 
 ciar 
 
v.] Norman and Plant agenet Kings, 157 
 
 from England, but at all times to relieve him from the 
 pressure of the vast amount of business which the govern- 
 ment of that newly-acquired dominion involved. The 
 Justiciar, in short, stood to the King in the whole kingdom 
 in the same relation as the Sheriff did in each shire.^ The 
 dignity of the Justiciar's office remained unimpaired until 
 the death of King John, when Hubert de Burgh, the 
 Justiciar, being besieged in Dover^ Castle, the Barons who 
 proclaimed Henry HI. constituted the Earl of Pembroke 
 ' Rector Regis et regni] De Burgh still retaining his office. 
 In 1 241, the Archbishop of York was appointed Regent 
 during Henry's absence in Poitou, without the title of 
 Justiciar. But the office was still considered of such im- 
 portance that in 1258, in the *Mad Parliament' at Oxford, 
 the Barons demanded that the Justiciar should be annually 
 chosen with their approbation. At length Edward I. 
 dispensed with the office altogether ; and the Chancellor, 
 who now entered into many of the rights and dignities 
 formerly enjoyed by the Justiciar, became the principal 
 minister. 
 
 The title of Chancellor was introduced into England '^\f ^^^"' 
 
 cellor. 
 
 under Edward the Confessor, as the designation of the 
 official keeper of the Royal seal and chief of the King's 
 chaplains. With the Chancellor at their head, the King's 
 chaplains, like the ' clerks of the palace ' of the Frankish 
 monarchs, formed a select body of scribes or secretaries, 
 who, under the Justiciar, drew up and sealed the Royal writs, 
 conducted the king's correspondence, and assisted the trea- 
 
 1 Stubbs, Sel. Chart. Introd. Sketch, i6. 'The growth of [the Justiciar's] 
 
 functions was gradual, and even the history of the title is obscure 
 
 The office first appears as the lieutenancy of the kingdom or vice-royalty exer- 
 cised during the king's absence from England. In this capacity William 
 Fitz-Osbern the steward of Normandy, and Odo of Bayeux, acted during the 
 
 Conqueror's visit to the Continent in 1067 It would seem most probable 
 
 that William Fitz-Osbern, at least, was left in his character of steward, and 
 that the Norman seneschalship was thus the origin of the English justiciarship.' 
 — Const. Hist. i. 346. [This hardly seems sufficient to account for the Jus- 
 ticiar's position as President of the King's Court, in the King's absence, unless 
 there be evidence, not offered in the passage cited, of a similar position having 
 been filled by the Seneschal of Normandy in the absence of the Duke. — Ed.] 
 
J 58 Administrative System under the [Ch. 
 
 surer in keeping the Royal accounts.^ Under the Norman 
 kings the office of Chancellor, though dignified and im- 
 portant, was thrown into shade by the Justiciarship. From 
 the time of Becket, however, the Chancellorship appears to 
 have steadily advanced in dignity until, on the abolition of 
 the office of Justiciar, it attained, as we have seen, the fore- 
 most rank. 
 The Curia The term Curia Regis^ in its widest signification, and 
 ^^^^^' early use under William the Conqueror and William Rufus, 
 
 seems to have denoted the National, Common, or Great 
 Council of the Realm — the Witenagemot in its feudalised 
 form — at the threefold sessions of which the Bishops and 
 Earls and all tenants-in-chief had the right of attending. 
 In addition to its political function of giving ' counsel and 
 consent ' to legislative changes and other acts of national 
 import, the Curia, in its Judicial aspect, was invested with 
 the old appellate jurisdiction of the Witenagemot, and 
 with a direct jurisdiction, as the Feudal court of the King's 
 vassals, in all disputes between the tenants in capite. From 
 ! the reign of Henry I. at the latest, the Judicial functions of 
 the Common Council of the Realm appear to have been 
 exercised by a supreme Court of Justice, to which the name 
 Curia Regis is specially, though as yet not exclusively, 
 appropriated, and which is attendant upon the King in his 
 movements from place to place.^ It is presided over by the 
 King, or in his absence by the Justiciar, who was assisted 
 in the performance of his duties by a staff of officials com- 
 posed of those barons who were attached to the Royal 
 
 ^ Palgrave, Eng. Com. i. 177. *The name, derived probably from the 
 cancdliy or skreen behind which the secretarial work of the royal household 
 was carried on, claims a considerable antiquity ; and the offices which it de- 
 notes are various in proportion. The chancellor of the Karolingian sovereigns, 
 succeeding to the place of the more ancient referendarius, is simply the royal 
 notary : the archi-cancellarius is the chief of a large body of such officers 
 associated under the name of the Chancery, and is the official keeper of the 
 royal seal. It is from this minister that the English chancellor derives his name 
 and function.' — Stubbs, Const. Hist. i. 351 — 352. 
 
 2 ['With the Norman Conquest,' says Bigelow, Hist. Proc. in Eng.^ 
 p. 75, * the king's court proper became a disturbing and an uncertain influence 
 in administration. It appeared furnished with new processes of law, and with 
 claims to jurisdiction of unknown extent.' — Ed.] 
 
J 
 
 v.] Norman and Plantagenet Kings, 159 
 
 household, such as the constable, marshal, chamberlain, 
 steward, and treasurer, together with the Chancellor and 
 other persons selected by the King as being specially 
 qualified by their legal knowledge to act as Judges.^ This 
 Court possessed originally all those different powers which 
 were subsequently distributed among the three courts of the 
 King's Bench, the Common Pleas, and the Exchequer. In 
 the Curia Regis were discussed and tried all pleas imme- 
 diately concerning the King and the realm ; it superin- 
 tended the assessment and collection of the Royal revenue ; 
 decided all appeals ; and to it suitors were allowed, on 
 payment of a fine, to remove their plaints from the older 
 but inferior Courts of the shire, the hundred, the manor / 
 and the borough.^ The exact relation of the Curia Regis 
 thus constituted as a Court of Justice, to the Curia Regis 
 in its wide signification as the National Council, is admit- 
 tedly obscure ; nor can we expect to find clearness of defi- 
 nition and limitation at a period when the machinery of 
 government was undergoing a process of transition and 
 development. Practically, however, the King's Court exer- 
 cised the Judicial powers of a permanent committee of the 
 National Council,^ consisting mainly of the great officers of 
 
 1 On the origin of the great officials of the Household and the State, see 
 Stubbs, Const. Hist. i. 343—356. 
 
 2 Hardy, Introduction to Close Rolls, p. 23. 
 
 * [Bigelow, Hist. Proc. Eng. , p. 76, disputes this, saying that the use of the 
 expression Committee of the Witenagemot, or Great Council, for the King's 
 Court is * so inapt and misleading that no consideration even of convenience 
 should permit its use. A committee is the delegate of the superior body, 
 working for it, and subject to its order and control. The King's Court stood in 
 no such relation to the Great Court \i.e.^ obviously, the Great Council. — Ed.]. 
 It was in no sense the delegate of that court ; it was not created by it, and it 
 did not act for it. It was coeval in the (Anglo-Norman) Constitution with 
 the Great Court itself; it had sprung at the same time from the same parentj^e, 
 the Conquest. ... In its relation to the Great Court, it was simply a smaller 
 body of great men attendant upon the King, who had their place also in the 
 larger court.* This independent view should be borne in mind, whether 
 acceptable or not to the English student of Mediaeval History. Mr. Bigelow 
 does not deny to the King's Court a certain representation, though he deems 
 it but a * flickering ' one, of the A.-S. * Thegn-men's Court,' which, as he 
 says, was ' enlarging in the time of the Confessor, and must finally have 
 become the most important judicial tribunal of the kingdom, had there been 
 no Conquest.' — Ed.] 
 
i6o 
 
 Administrative System under the [Ch. 
 
 ministration. 
 
 The Exche- 
 quer. 
 
 the King's household, and strengthened by the addition of 
 other officials specially qualified for the position of judge.^ 
 Fiscal ad- The administration of the Justiciar was first systematically 
 
 organised under Henry I., by Roger, Bishop of Salisbury, 
 the founder of a family of officials. From the reign of 
 that King, at the latest, a committee or branch of the Curia 
 Regis was specially devoted to fiscal matters, and when so 
 employed, sat in the chamber and was known by the name of 
 the Exchequer {Curia Regis ad Scaccarium).^ Twice in each 
 year, at Easter and Michaelmas, every sheriff was bound to 
 appear at the Exchequer in the Palace at Westminster and 
 account for the sums due from his shire. These were 
 mainly of two kinds (i.) the ancient national payments 
 (which required no new authorisation), consisting of {a) the 
 ferm of the shire, that is the rent (formerly paid in kind, 
 now commuted for fixed sums) from public land and Royal 
 demesnes — the old Folkland now become terra regis ; {b) 
 Danegeld, * the ship-money of those times,' a tax of two 
 shillings on every hide of land, originally imposed under 
 Ethelred IL, to raise a tribute exacted by the Danes, and 
 by the Norman Kings turned into a permanent contribution 
 for the public defence ; ^ {c) the fines of local courts — the 
 old English wite payable to the King. (2.) The new Feudal 
 aids, reliefs, and other payments, for which also ho authori- 
 sation of Parliament was required unless when some extra- 
 ordinary gift was demanded. In addition to these sources 
 
 Sources of 
 revenue. 
 
 1 Besides being applied to the National Council, and the Supreme Court of 
 Justice, the term Curia Regis was also employed to denote the King's Continual, 
 Ordinary, or Select Council. 
 
 2 The members of the Curia were all termed Justices, their head being the 
 Capitalis Justiciarius ; but in the Exchequer they were called Barones, or 
 Barones Scaccarii, a title which they retained after the Court of Exchequer had 
 come to be filled with mere lawyers not chosen from the baronage. Justi- 
 ciaries ibidem commorantes, says Fleta, barones esse dicimus eo quod suis 
 locis barones sedere solebant. — Hallam, Midd. Ages, ii. [423]. The Exchequer 
 derived its name from the ' chequered cloth which covered the table at which 
 the accounts were taken, a name which suggested to the spectator the idea of a 
 game at chess between the receiver and the payer, the treasurer and the sheriff. ' 
 — Stubbs, Const. Hist. i. 377 ; Dialogus de Scaccario, i. i. 
 
 3 The latest instance of its payment is in the 20th of Henry H,, but 
 Richard I. practically revived it under the disguise of a ' carucage,' or land- 
 tax. 
 
v.] Norman mid Plantagenet Kings, i6i 
 
 of revenue the demesne lands of the King and the towns 
 were liable to talliage, which was arbitrarily exacted with- 
 out the consent of Parliament, until the right was sur- 
 rendered by Edward I.^ No inconsiderable income was 
 also received by the Exchequer from the fines and other 
 proceeds of the ' pleas of the crown,' from the amercements 
 payable in respect of a large class of small offences of 
 commission or omission, and from the fines paid to the 
 King by the parties to suits at law, either by the plaintiff 
 to obtain speedy judgment, or by the defendant in order to 
 delay or put an end to further proceedings. 
 
 Henry II., the first of the Angevin or Plantagenet Important 
 dynasty, introduced important changes in Taxation. All xSion'* 
 classes of the people and all kinds of property were under 
 brought under contribution. His Scutage was a new land ^""^^ 
 tax imposed upon the tenants in chivalry, clerical as well 
 as lay, and rated, not upon the ancient basis of the hide, 
 but upon the scutum, or knight's fee.^ Danegeld, after 
 the King's dispute with Becket, was allowed to drop out 
 of the fiscal system, but only to be almost immediately 
 revived under the name of dotium or hidage. Under 
 Richard I., it became the ' carucage,' a tax levied upon all 
 holders of land of whatever tenure. But Henry's most Taxation of 
 important innovation was the taxation of income and per- prolgrKr 
 sonal property, which, as we have seen,^ were made contri- 
 butory for the first time by his ordinance of the Saladin 
 Tithe in 1188. The practice, when once introduced, was 
 speedily extended and permanently retained. For the 
 
 » Hallam, Midd. Ages, ii. [318]; Stubbs, Select Chart. Introductory Sketch, 
 18. 
 
 2 On the disputed extent of the Anglo-Saxon 'hide,' see Kemble, Saxons, i. 
 88 seq., who makes it about thirty-three acres; and G. L. Von Maurer, Einlei- 
 tung, 126 — 134. It is agreed that the later hide was one hundred or one hun- 
 dred and twenty acres. The quantity of land constituting a Knight's fee was 
 not uniform. It probably varied with the value. The usual value requisite for 
 a Knight's fee was £10, temp. Edw. I. (Pari. Writs, i, 214), and the amount 
 had probably been the same from the introduction of the tenure. [Sec also 
 The Acre attd the Hide, by E. W. Robertson, in Gent. Mag., Dec. 1866, Jan. 
 1867, Eyton, Dorset Domesday, and Domesday Studies, vol. i.— Ed.] 
 
 3 Supra, p. 102. 
 
 C.H. M 
 
l62 
 
 Administrative System under the [Ch. 
 
 The pressure 
 of new and 
 systematic 
 taxation ex- 
 cites opposi- 
 tion ; 
 
 and leads to 
 the re-asser- 
 tion by the 
 Nation of its 
 ancient right 
 to be taxed 
 only by 
 consent. 
 
 Fines pro 
 respectu 
 tnUitiae 
 enforced by 
 Edward I. 
 
 ransom of Richard I. in 1193, every person in the realm 
 was called upon to pay one-fourth of revenue or goods. 
 King John exacted, in 1203, a seventh of the moveables of 
 his barons, and in 1207 a thirteenth from the whole people.^ 
 It was only after taxation had been remodelled and sys- 
 tematically extended, under the first Angevin Kings, to all 
 classes of men and all kinds of property, personal as well 
 as real, that any serious opposition, first by the clergy and 
 then by the -rest of the nation, begins to make itself felt. 
 In the pre-Norman period the right of the National 
 Council to consent to the imposition of taxes was undis- 
 puted, although rarely called into exercise. By the theory 
 of the Feudal System, also, the taxpayer ' made a volun- 
 tary offering to relieve the wants of his ruler.' Now that 
 taxation had again become national, and was pressing 
 heavily upon all classes, it became necessary to re-assert 
 the ancient right of the Nation to give its counsel and con- 
 sent. The process by which the bulk of the feudal vassals 
 exchanged their theoretical right of personal consent for 
 the practical right of granting taxes by their representa- 
 tives, in an assembly which represented not merely the 
 landowners, but all sections of the Nation, will be discussed 
 later on when treating of the origin and growth of Parlia- 
 ment. 
 
 Edward I. employed an expedient for raising money 
 without the consent of Parliament, analogous to the insti- 
 tution of scutage by Henry II. It was one of the liabilities 
 of a tenant by knight-service to be obliged, on attaining 
 full age, to receive the order of knighthood, and to provide 
 himself with the arms and equipments appropriate to that 
 dignity. Henry III., in 1224, had directed the sheriffs to 
 
 ^ In subsequent times a * fifteenth ' of the value of every man's chattels be- 
 came the usual grant. From the 8th Edward III. a 'fifteenth' signified a 
 fixed sum according to an assessment of the value made in that year upon all 
 the cities, boroughs, and towns of England. Under Richard II. the old scu- 
 tage, hidage, and talliage began to be replaced by the 'subsidy,' a property 
 tax of 4J. in the pound for land and zs. Sd. in the pound for goods. Like 
 the 'fifteenth,' the 'subsidy' also became a fixed amount ; one 'subsidy* = 
 ^70,000. 
 
v.] Norman and Plantagenet Kings, 163 
 
 enforce this obligation against all lay holders of a knight's 
 fee :^ an order which was repeated in 1234 as to tenants 
 in capita only.^ In 1278, Edward I., being pressed for funds 
 issued stringent orders to the sheriffs to compel all persons, 
 as well tenants of mesne lords as tenants-in-chief, who 
 held land to the value of ;^ 20 a year, or one whole knight's 
 fee of the same annual value, and who ought to be knights, 
 to take up their knighthood.^ Those who preferred to pay 
 a fine pro respectu militiae^ were excused. The distraint 
 of knighthood was not merely a method of raising money ; 
 it was also intended to effect the military object of aug- 
 menting the knightly body from competent freeholders, 
 who were neither tenants-in-chief nor tenants in chivalry, 
 thus forming a link between the Feudal force and the old 
 National militia ; and politically it tended to weaken the 
 influence which the baronage derived from the mesne 
 tenures.* But the early abuse of this prerogative is shown 
 by the institution in 1274 of an inquiry into the misconduct 
 of the sheriffs and others in reference to the compulsory 
 knighthood,^ and by the remedial Statute De Militibus Edward II.. 
 passed on the accession of Edward II. It was enacted that Mmtums. 
 tenants whose lands produced ;^20 a year, or who were 
 under age, or in holy orders, or whose lands were held by 
 socage or burgage tenure, should not be compelled to re- 
 ceive knighthood ; and that other persons, if of great age, 
 afflicted with bodily injury or incurable disease, or burdened 
 by the charge of children or by suits, should be excused 
 on payment of a reasonable fine.^ This mode of raising 
 money without the consent of Parliament was vexatiously 
 employed in later times by Edward VI., Elizabeth, and 
 Charles I. It was abolished, with the other incidents of 
 Feudal tenure, by the Act of Charles II.'' 
 
 1 Rot. Claus. ii. 69. 
 
 2 Royal Letters [Hen. III.], i. 456. 
 
 3 Palgrave's Pari. Writs, i, 214. 
 
 '* See Stubbs, Const. Hist. ii. iii, 28] 
 * Rymer, i. 517. 
 ^ I Edw. II. Stat. I. 
 7 12 Car. II. c. 24. 
 
r64 
 
 Ad7ni7iistrative System under the [Ch. 
 
 Indirect 
 taxation. 
 
 Judicial 
 system : 
 
 Changes in 
 the Curia 
 Regis under 
 Henry II. 
 
 Besides the various forms of direct taxation under the 
 Norman and early Angevin kings, the prisage of imported 
 wines and the customs duties on certain other imports and 
 exports (based upon the ancient right of levying toll, which 
 in some places was exercised even by the lords of manors), 
 formed the nucleus of a system of indirect taxation which 
 gradually grew up with the expansion of commerce and 
 the increasing pecuniary necessities of the Crown. The 
 early abuse of the King's claim to customs is shown by the 
 provision in Magna Charta (c. 41), that merchants may 
 buy and sell sine om7iibus malis toltis^ per antiquas 
 et rectas consuettidines. The Constitutional aspect of 
 the later struggles between the King and the Parlia- 
 ment on the subject of indirect taxation will be discussed 
 hereafter. 
 
 Down to the reign of Henry II. the Curia Regis still 
 continued as the one Supreme Court, cf which some of the 
 Judges, selected from time to time out of the whole body, 
 and varying in number and combination, held a practically 
 continuous session at the Exchequer for all financial busi- 
 ness. Under Henry II. — more especially during the decade 
 beginning with the Assize of Clarendon in 11 66 and ending 
 with the Assize of Northampton in 1176 — the great in- 
 crease in the business of the Curiay both in its central 
 sessions and on its fiscal and judicial circuits, caused the 
 staff of Judges to be gradually augmented to eighteen. But 
 in the year 11 78, the King, finding this number too great, 
 reduced the Judges in the Curia from eighteen to five (two 
 clerics and three laymen) ; and at the same time deprived 
 the court of its character of a court of final appeal, by re- 
 serving to his own hearing in Council causes in which the 
 Curia should fail to do justice.^ From this limited tribunal. 
 
 1 Benedict. Abbas, i. 207. Et cum didicisset [rex] quod terra et homines 
 terrse nimis gravati essent ex tanta justiliarum multitudine, quia octodecim 
 erant numero ; per consilium sapientium regni sui quinque tantum elegit, duos 
 scilicet clericos et tres laicos : . . . Et statuit quod illi quinque audirent omnes 
 clamores regni, et rectum facerent ; et quod a curia regis non recederent, sed 
 ibi ad audiendum clamores hominum remanerent ; ila ut si aliqua quaeslio 
 
v.] Norman and Plant agenet Kings. 165 
 
 which from the following year held regular sessions in 
 Banco, nominally but not actually coram Rege, sprang 
 the Courts [now Divisions] of King's [or Queen's] Bench and 
 Common Pleas. Being still, in theory, held coram RegCy the 
 Curia continued, as of old, to follow the King's person, but 
 this practice being found productive of great inconvenience 
 to both suitors and witnesses, it was provided by Magna 
 Charta that common pleas— civil suits between private in- 
 dividuals — should be separated from the other business of 
 the Curia and fixed at Westminster.^ 
 
 Not long after the granting of Magna Charta, the Curia Later divi- 
 Regis was permanently divided into three committees or ^j^^^g courts 
 courts, each taking a certain portion of the business: (i) ?/^^^s's 
 Fiscal matters were confined to the Exchequer ; (2) Civil Common 
 disputes, where neither the King's interest nor any matter p^^^^^f^' ^^J^^^ 
 savouring of a criminal nature was involved, were decided 
 in the Common Pleas ; and (3) the court of King's Bench 
 retained all the remaining business and soon acquired the 
 exclusive denomination of the ancient Curia Regis? But 
 the same staff of Judges was still retained for all three 
 courts, with the Chief Justiciar at their head. Towards the 
 end of Henry III.'s reign, the three courts received each a 
 distinct staff, and on the abolition by Edward I. of the 
 office of Chief Justiciar, the only remaining bond of union 
 being severed, they became completely separated.^ Some 
 
 inter eos veniret, quae per eos ad finem duci non posset, auditui regie prsesen- 
 taretur et sicut ei et sapientioribus regni placeret terminaretur. \_s.a. 1178.] 
 ^ Mag. Chart, c. 17, supra, p. 121. 
 
 2 The somewhat confusing employment of the term Curia Regis down to 
 the time when it became exclusively appropriated to the Court of King's Bench, 
 is referred to by Hallam (M. A. ii. 423), and should be borne in mind. It 
 was used to denote: (i) The Commune Concilium, or National Council of 
 the Realm, the Witenagemot in a feudalised form : (2) The Ordinarium Con- 
 cilium, the continual or select council for judicial as well as administrative 
 purposes : (3) The Court of King's Bench, springing from the limited tribunal 
 separated from this la.st by Henry II. in 1178, and soon after acquiring ex- 
 clusively the denomination Curia Regis. 
 
 3 From an early period after their complete severance, the King's Bench, 
 Common Pleas, and Exchequer resorted to various contrivances to enlarge the 
 jurisdiction of their respective courts. The King's Bench always had cogni- 
 sance of all personal actions where the defendant was already under the custody 
 of that 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 juris- 
 
1 66 
 
 Administrative System under the [Ch. 
 
 Itinerant 
 Justices 
 established 
 by Henry 
 
 trace of their ancient unity of organisation always survived, 
 however, in the Court of Exchequer Chamber ; ^ until at 
 length after six centuries of independent existence they 
 were again united by the Judicature Act, 1873.^ Together 
 with the Court of Chancery and the Probate, Divorce, and 
 Admiralty Courts, they now form Divisions of a consoli- 
 dated High Court of Justice, itself a branch of the Supreme 
 Court of Judicature. 
 
 The system of Itinerant Justices, or Justices in Eyre 
 (=: in itinere) was not invented by Henry H., but its estab- 
 lishment as an organised and permanent institution is due 
 to him. As early as the reign of Henry I., some of the 
 justices of the Curia Regis were occasionally appointed by 
 
 diction ; and by a similar legal fiction the Court of Exchequer, though by its 
 constitution precluded from hearing common pleas, gained cognisance 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 enabk 
 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 ; and 
 the legal maxim ho7ii judicis est ampliare Jurisdictiojiem seemed capable of a 
 somewhat mercenary interpretation. The statutes 2 Will. IV. c. 39, and 
 2 Vict. c. no, at length put an end to these fictions, and established one form 
 of process — the writ of summons — for all the courts. 
 
 f The Court of Exchequer Chamber existed down to the passing of the 
 Judicature Act, 1873, under two forms : 
 
 (i) As a court of mere debate, into which causes of great weight and diffi- 
 culty might be adjourned, before judgment was given upon them 
 in the court below (as was done in Calvin's case, 2 St. Tr. 559). 
 The court was then composed of all the Judges of the three superior 
 Courts, and sometimes the Lord Chancellor also. 
 (2) Asa 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) were abolished, and 
 {c) The court was reconstituted by 1 1 Geo. IV. & i Will. IV. c. 
 70, s. 8. Judgments of each of the superior Courts of 
 Common Law (upon proceedings in error in law being insti- 
 tuted) were subject to revision by the Judges of the other 
 two Courts sitting collectively as a Court of Error in the Ex- 
 chequer Chamber. 
 (See Stephen, Commentaries, iii. 428.) By the Supreme Court of 
 Judicature Act, 1873, the jurisdiction of the Court of Exchequer 
 Chamber was merged in that of the new Court of Appeal. 
 2 36 & 37 Vict. c. 66. 
 
v.] Norman and Plantagenet Kings, 167 
 
 the King to go from county to county to collect the revenue 
 and hold pleas, civil and criminal.^ Their chief duty, ori- 
 ginally, 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 ofhcers.^ But they 
 also supplied the place both of the old English Royal pro- 
 gresses, 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, on the three great festivals of the year. 
 During the anarchy of Stephen's reign the provincial visita- 
 tions had ceased ; but Henry II. restored the practice. 
 The instructions contained in the Assize of Clarendon in 
 1 166 are evidently intended for the guidance of a body of 
 itinerant Justices who were about to visit each county, and 
 in conjunction with the Sherififs, try all offenders accused by 
 the Jury of Presentment.^ In 11 76, at the Great Council Regular 
 of Northamptom, Henry divided the kingdom for fiscal and {^^^l 
 judicial purposes into six circuits, to each of which three 1176- 
 itinerant Judges were assigned.* By the Magna Charta of 
 John (c. 18) two Justices were to be sent into each county 
 four times a year, to take assizes of mort d'ancestor, novel 
 disseisin, and darrein presentment ; but in the second re- 
 issue of the Charter by Henry III., in 12 17, this was altered 
 (c. 13), to one annual visitation. Shortly afterwards the 
 Justices appear, for general purposes, to have made their 
 
 ^ 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 justitiarii 
 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 illo itinere habet dominus rex vel habere debet maximam summam pecuniae, 
 si persolvatur et bene coUigatur. Unde bene dicunt quod per ilia amercia- 
 menta et per alia auxilia prius data, omnes de regno ita gravantur et depauper- 
 antur quod parum aut nihil habent in bonis. — Matt. Paris. 582. 
 
 3 Select Chart. 134. 
 
 ■* Ben. Abb., i. 107 ; Dial, de Scacc. ii. c. 2 [secuii regnum in sex partes]. 
 
1 68 Administrative System under the [Ch. 
 
 circuit round the kingdom once in seven years only ; a 
 practice which was continued till the reign of Edward I. 
 Judges of By the statute of Westminster II. (13 Edw. I. c. 30), 
 
 Nisi Prius. Judges of Assize and Nisi Prius 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 con- 
 tinued to the present day.^ 
 
 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 visi- 
 tations thus form * the link between the Curia Regis and 
 the Shire-moot, between royal and popular justice, between 
 the old system and the new.' ^ This direct connection 
 between the court of the King and the court of the Shire 
 had most important Constitutional effects, hereafter to be 
 noticed, on the growth of the national representative as- 
 sembly ; and to the same cause is mainly due both the 
 uniformity of our Common Law, and the repression within 
 due limits of the local Feudal jurisdictions.^ 
 
 * Provincial justice has always been administered under a variety of distinct 
 authorizations, corresponding to the several commissions of the judges. Black- 
 stone (iii. 60) describes the judges of Assize as sitting under five commissions ; 
 (i) 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 other real 
 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. 
 
 2 Stubbs, Const. Hist. i. 605. 
 
 2 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 HI. 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 visita- 
 tion. ... A writ of Henry HI., 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, 
 i. p. 607 [and n. 3, ibJ\, 
 
v.] Norman and Plant agenet Kings, 169 
 
 To Henry 11.^ must also be ascribed, in addition to his Trial by 
 other legal reforms, the wide expansion and regular estab- 
 lishment of the system of Recognition by Sworn Inquest, 
 that is, the finding of facts by the oath of a body of impar- 
 tial witnesses, who represent the testimony of the local 
 community, and are summoned and examined by an official 
 acting under the King's writ. From this institution our 
 modern Trial by Jury is lineally descended. 
 
 The origin of this *most democratical of juridical institu- its origin, 
 tions,' the cherished bulwark of Constitutional liberty, has 
 been the subject of much learned discussion, and of 
 numerous conflicting theories. ^ Many eminent writers, 
 including the learned author of the * History of Trial by 
 Jury,' have stoutly maintained that the English jury is 
 of indigenous growth, and was not derived, directly or 
 indirectly, from any of the tribunals that existed on the 
 Continent.^ Some have contended for its ancient British 
 or Romano-British origin.* By others the Anglo-Saxon 
 compurgators (or sworn witnesses to credibility), the sworn 
 witnesses to facts, the frithborky the twelve senior thegns 
 of Ethelred's law who were sworn to accuse none falsely, 
 the system of trial in local courts by the whole body of the 
 Shire or Hundred, have all been regarded as containing, 
 severally or in combination, the germ of the modern Jury. 
 Yet, with the exception of what may be termed Ethelred's 
 
 * * 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. 
 
 2 See Forsyth, Hist, of Trial by Jury ; Bourguignon, Memoire sur le Jury, 
 (who despairingly says, ' son origine se perd dans la nuit des temps '), Pal- 
 grave, English Commonwealth, i. ch. 8 ; Turner, Hist. Anglo-Saxons ; 
 Reeves, Hist. Eng. Law (ed. Finlason) ; Meyer, Orig. et Progr^s des Inst. 
 Judic. ii. c. II ; Gneist, Self- Government, i. 74, sq. ; K. Maurer, in the Kri- 
 tische Ueberschau, v. 180, 332, sq. ; Brunner, Entstehung dcr Schwurgerichte ; 
 Stubbs, Const. Hist. i. 395, 608-623 ; [and Glasson, Hist, du Droit et des 
 Inst, de C Angleterre, iii. 409-414. M. Glasson shows that the Judicium 
 pariuni was claimed as a common law right in France under Louis VIII., and 
 also notes the salient difference between the Jurors of English Law and the 
 Juraii of the Assises de Jerusalem, who have by some been claimed as their 
 prototype. — Ed. ] 
 
 3 Forsyth, Trial by Jury, p. 13. 
 
 ^ Philipps on Juries ; Probert, Ancient Laws of Cambria ; Finlason's 
 Reeves' Hist, of English Law. 
 
170 Administrative System under the [Ch. 
 
 Jury of Presentment (which will be considered in connexion 
 with the Grand Jury of later times), not one of these 
 supposed origines will be found, on careful examination, to 
 possess much more than a superficial analogy to the Inquest 
 by Sworn Recognitors, the historic progenitor of the existing 
 Jury. The theory which presents the fewest a priori diffi- 
 culties, and which is supported by arguments and evidence 
 only falling short of actual demonstration, regards the 
 English system of sworn inquests as an importation from 
 Normandy. There, both before and after the cession of the 
 Neustrian province to RoUo by Charles the Simple, it had 
 existed, as in the rest of France, from its establishment 
 under the Carolingian Kings, whose Capitularies contain 
 minute instructions for inquisitions by sworn witnesses in 
 the local courts.^ But whatever may be the remote source 
 of this institution, out of which Trial by Jury grew — a 
 question after all chiefly of antiquarian interest — whether we 
 regard the institution as a modification of the old English 
 Judicial system, or, with far greater reason, as an inheritance 
 derived through the Normans from the Carolingian Kings, 
 two points are in any case clear : (i) The system of Inquest 
 by Sworn Recognitors, even in its rudest and simplest 
 form, appears for the first time in England subsequently to 
 and shortly after the Norman Conquest. (2) This system 
 was in England, from the first, worked in close combination 
 with the previously existing procedure of the shire-moot ; ^ 
 
 ^ See Palgrave, English Commonwealth, i. ch. 8 ; Brunner, Entstehung der 
 Schwurgerichte, who traces the inquest by jury, both Norman and English, 
 from the Carolingian Inquisitiones ; and Stubbs (Const. Hist. i. 612-614, n. i), 
 who, adopting in the main the theory of Palgrave corrected and adjusted by the 
 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 
 
 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 \sic\ in connexion with 
 it is the fact that it was only on English soil that it gained much development, 
 the Norman lawyers seeing themselves rapidly outstripped by those of England, 
 and the institution withering away in the rest of France until it became 
 extinct.' 
 
 ^ See the celebrated trials in the reign of William the Conqueror between 
 
v.] Norman and Plantagenet Kings. 17 1 
 
 and in its developed form of ' Trial by Jury ' is distinctly 
 and exclusively an English institution.^ 
 
 As regards Criminal trials, we do indeed meet in the The twelve 
 ordinance of King Ethelred 11. {flor. 978-1016) with allSld"-'^" 
 species of jury of accusation clearly analogous to our Grand moot, a jury 
 Jury, and possibly its direct progenitor. In the gemot of mentor 
 every hundred or wapentake the twelve senior thegns, ^""^^"^^s- 
 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.^ The 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 compurgation, or the ordeal. 
 This primitive Grand Jury probably continued in use, after 
 the Conquest, until its reconstitution by Henry 11.,^ 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. 
 
 For more than a hundred years after the Conquest the Growth of 
 ancient Anglo-Saxon modes of trial, or forms of proof, cJvj/cases? 
 by ordeal {judicium Dei)^ by oath (compurgation, termed 
 
 Lanfranc, Archbishop of Canterbury, and Odo, Bishop of Bayeux, on Pen- 
 nenden Heath (Ang, Sacra, i. 334-336) ; and between Gundulf, Bishop of 
 Rochester, and Picot, Sheriff of Cambridgeshire {lb. i. 339). [Cf. Bigelow, Flac. 
 Ang.- Norm. y 4, 34. — Ed.] 
 
 ^ [Bigelow, Hist, of Procedure in Eng.^ p. 334, calls the modern jury a 
 ' purely Norman-English ' institution, and says that ' the essential features of 
 the modern jury were in fact nearly consummated in the recognitions.' — Ed.] 
 
 2 ' This is the ordinance which King Ethelred 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 wapontake ; 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.' Thorpe, Anc. Laws and 
 Inst. ; Select Chart. 71-2. 
 
 3 Ang. -Sax. Chron. ann. 1124. . . . 'After S. Andrew's mass, before 
 Christmas, Ralph Basset [justiciar] and the king's thegns held a "gewitenemot" 
 at Hundehoge [Huncot] in Leicestershire, and there hanged so many thieves as 
 never were before, that was in that little while, altogether four and forty men.' 
 [This is said by Bigelow, Hist. Proc. Eng. , 24, to be * one of the latest men- 
 tions of the witenagemot by that name.' — Ed.] 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 present- 
 ment may probably have been indicated. 
 
172 Administrative System under the [Ch. 
 
 later on * wager of law ' ), by witnesses, and by production 
 of charters, continued in general use, side by side with the 
 Norman procedure, the wager of battle — an innovation 
 detested by the English,^ and at length gladly laid aside 
 by the Normans themselves, — and the occasional use of the 
 Inquest by sworn recognitors. It was only gradually, how- 
 ever, 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 ascertainment of the laws 
 of King Edward,^ the Domesday survey,^ the assessment 
 of feudal taxation under William Rufus and Henry I., and 
 the customs of the Church of York, which the latter 
 monarch, in 1106, directed five commissioners to verify by 
 the oath of twelve of the citizens.* There are, however, 
 equally early instances of strictly legal matters being 
 decided by the recognition on oath of a certain number of 
 probi et legates homines, selected from the men of the 
 county to represent the neighbourhood and testify to facts 
 of which they had special knowledge. In a suit as to 
 certain lands of the Church of Ely, the Conqueror directed 
 his justiciars to assemble the shire-moots^ of the shires 
 in which the possessions of the Abbey of Ely lay, 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 Edward.^ A like proceeding is 
 directed with reference to the rights of the monks of 
 
 * [As to this alleged English detestation, see contra, Bigelow, Hist, of 
 Proc. Eng., p. 327, and the case there cited, where an Englishman, Bp. 
 Wulfstan, was plaintiff so soon after the Conquest as circa 1077. — Ed.]. 
 
 2 Supra, p. 72. 
 
 3 Supra, p. 60. 
 
 ^ Thoroton, Nottinghamshire, iii. 77 ; Stubbs, Const. Hist. i. 611. 
 
 ^ \Omnes scyras is the expression in the Writ. Bigelow, Plac. Ang.-Nomi., 
 24. — Ed.] 
 
 ^ Eligantur plures de illis Anglis qui sciunt quorcodo terrae jacebant 
 praefatDc ecclesise die qua rex Edwardus obiit, et quod inde dixerint ibidem 
 jurando testentur. — Liber Eliensis, 256. [Bigelow, Plac. Ang.-Aortn., 24. 
 —Ed.] 
 
v.] . Norman and Plantagenet Kings. 1 7^ 
 
 Ramsey in an extant writ of William Rufus directed to the 
 Sheriff of Northamptonshire.^ 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 
 Atheling to the Sheriff of Kent, requiring him to summon 
 * Hamo the son of Vital, and the probi vicini of Sandwich 
 whom Hamo has named, to say the truth ' respecting the 
 freedom 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 good men of the county 
 {sicut recognitum fuit per probos homines comitatus)} 
 Henry H. 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 Earliest 
 civil inquest, is mentioned for the first time in our statute Z%ry hi 
 law in the Constitutions of Clarendon. The way in which ^f^^"^-^. '^^^^' 
 
 ' Constitu- 
 
 the jury is therein referred to seems to imply that it hsid tions of 
 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 sheriffs, at the Bishop's request, 
 were directed to * swear twelve lawful men of the neighbour- 
 hood 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.* 
 
 * Palgrave, Eng. Com. (Proofs), clxxix. 
 
 2 Hist. Mon. S. August, pp. 353-4; Palgrave, ubi sup. ; Forsyth, Trial by 
 Jury, 104. 
 
 3 The variations in the mode of assessing taxation during this period and the 
 increasing use of the jury for that purpose, are traced by Bp. 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.' 
 
 ■* Supra, p. 99. 
 
174 
 
 Administrative System under the [Ch. 
 
 Henry II. 's 
 Grand 
 
 Assize. 
 
 Procedure. 
 
 Other 
 
 Assizes. 
 
 The Jury 
 were xoit- 
 nesses. 
 
 It was in the Grand Assize ^ (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 IL, 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 procereSy to 
 relieve freeholders from the hardship of defending the title 
 to their lands by the doubtful issue of trial by battle.^ By 
 the Grand Assize the defendant was allowed his choice 
 between wager of battle and the recognition {i.e., know- 
 ledge) of a jury of twelve sworn knights of the vicinage 
 summoned for that purpose by the sheriff. 
 
 In actions not seeking to determine the absolute right to 
 land, but dealing with the seisin only (of which the * assize 
 of novel disseisin ' was the most important), the sheriff him- 
 self chose twelve knights or freeholders {legates homines) of 
 the vicinage, who were sworn to try the question. In both 
 
 1 Assisa= Statute or Ordinance. The recognition by jurors was called an 
 assize because it was established by an Assisa or statute of Henry IL, 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. [Some of these state 
 ments taken from Mr. Forsyth appear to be of doubtful accuracy. In mediaeval 
 charters the milites are always carefully distinguished by their proper descrip 
 tion, and separated from other witnesses in the test clause, and it is appre- 
 hended that no armigcr would find place among them, still less a generosus^ if 
 that epithet can be traced sufficiently far back to be considered. Per contra, 
 it is within the Editor's knowledge that so eminent a peerage lawyer and 
 genealogist as John Riddell, in an opinion on a peerage claim, laid great stress 
 on the value of the description, miles, in charters of David II. , as occurring 
 at a time when knighthood was a high distinction. That it ever sank so low 
 as to be ' almost synonymous ' with the extremely vague modern term * gentle- 
 man,' seems to the Editor to be a suggestion devoid of support from mediaeval 
 documentary evidence. — Ed.] 
 
 2 [For the suggestion of the Peace of Wallingford as the probable date, and 
 the Clergy as the originators of the Grand Assize, see Bigelow, Hist, of 
 Procedure in Eng., p. 175, n. 2. — Ed.]. 
 
 3 Est autem Magna Assisa regale quoddam beneficium, dementia principis 
 de consilio procerum populis indultum, quo vitae hominum et status integritati 
 tam salubriter consulitur, ut in jure quod quis in libera soli tenemento possidet 
 retifiendo duelli casum declinare possinl homines ambigtium. — Glanvill, De 
 Legibus Angliae, lib. ii. c. 7. 
 
v.] Norman and Plant agenet Kings. 175 
 
 cases the recognitors were sworn to found their verdict 
 upon their own knowledge, gained either by eye-witness or 
 by the words of their fathers, or by such words as they are 
 bound to have as much confidence in as if they were their 
 own.^ The proceeding by assize was in fact merely the 
 sworn testimony of a certain number of persons summoned 
 to give evidence upon matters within their own knowledge. 
 They were themselves 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 Affordng 
 agree, others were to be added — a process subsequently the Jury. 
 called afforcing the jury — until a verdict could be obtained 
 from twelve unanimous witnesses.^ 
 
 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 
 Cpurt 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 
 by jury was extended to Criminal cases. It was ordained crimind ^^ 
 that in every county twelve lawful men of each hundred, ^^^^^ '- 
 with four lawful men from each township, should be sworn QaJendon 
 to present all reputed criminals of their district in each 1166. 
 County court. The persons so presented were to be at once 
 seized and sent to the water ordeal.^ This was simply a 
 
 ^ Ad scientiam autem eorum qui super hoc jurant inde habendam, exigitur 
 quod per proprium visum suum et auditum illius rei habuerint notitiam, vel per 
 verba patrum suorum et per talia quibus fidem teneantur habere ut propriis. — 
 Glanvill, ii. c. 17. 
 
 2 Ibid. : Bracton, lib. iv. c. 19. An example of the whole jury being igno- 
 rant of the facts, and of the summons of a fresh one in consequence, occurs in 
 Placit. Abbrev. 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 tenemento suo in Suto post primam coronationem Domini 
 Regis. Juratores dicunt quod non viderunt unquam alium saisitum de tene- 
 mento illo nisi Willielmum de la Folie, ct quod nesciunt si Willielmus de la 
 Folie dissaississet eum vel non. Consideratum est quod alii juratores eligantur 
 qui melius sciant rei veritatem. Dies datus est eis ad diem Mercurii. 
 
 ■* 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. 
 
176 Administrative System under the [Ch. 
 
 reconstitutlon 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. 
 
 Richard I., By the Articles of Visitation issued under Richard I. in 
 
 Visitadon, ^ ^94j ^s instructions to the Itinerant Justices, the election 
 
 "9^. and constitution of the Jury of Presentment established 
 
 by Henry 11. was further regulated, and assimilated to 
 
 the system already in use for nominating the recognitors 
 
 of the Grand Assize.^ From this developed Jury of 
 
 The Grand Presentment our present Grand Jury has historically 
 
 descended.^ 
 Compurga- The establishment of this system of combined present- 
 ment and ordeal had the effect of abolishing, in all criminal 
 cases, the ancient practice of compurgation by the oath of 
 friends, 'the manifest fountain of unblushing perjury.' ^ 
 
 ^ Forma procedendi in placitis Coronae Regis. In primis eligendi sunt qua- 
 tuor milites de toto comitatu, qui per sacramentum suum eligant duos legales 
 milites de quolibet Hundredo vel Wapentacco, et illi duo eligant super sacra- 
 mentum 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. 
 
 2 In the course of time the element of popular election in the mode of nomi- 
 nating 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 oi 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 formerly endorsed on it. A famous historic 
 case of ' ignoramus ' occurred on the trial of Lord Shaftesbury for high treason 
 in 168 1, 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 ilyre. 
 
 ' 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 U case) he cannot wage his law, than an action 01 
 
v.] Norman and Plantagenet Kings, .177 
 
 In the year 1215, the ordeal was aboHshed throughout Ordeal 
 [Western Europe] by the fourth Lateran Council ; ^ and there 
 remained only, for criminal trials in England, the Grand 
 Jury and the Combat. But the Combat was not applicable The combat 
 unless an injured prosecutor, or ' appellant,' came forward appicablf ^^ 
 to demand it ; and as the Grand Jury was found inadequate 
 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 affirm, or Petit jury 
 traverse, the testimony of the first set of inquest-men. introduced. 
 This became the general usage in the reign of Henry III. 
 Still for a long time no prisoner was compellable to plead, Peine forte 
 that is, he might refuse to be tried by 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 1 11.^ 
 
 It is important to bear in mind that in Trial by Jury as Difference 
 permanently established, both in Civil and Criminal cases, ^ncilnTancr 
 by Henry II., the function of the Jury long continued modern 
 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 
 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.^ 
 
 debt. ' — Co. Lit. 295, b. The defendant himself was sworn de fidelitate^ and 
 the eleven compurgators de credulitate (Forsyth, 82). Wager of law was 
 abolished, in 1883, by 3 & 4 Will. IV. c. 42, s. 13. 
 
 1 [For reasons already given, it is submitted that although, practically, the 
 Lateran canon on this subject may have been allowed force by the Civil 
 Government, as a measure of utility, the canon itself can have had no validity 
 in Law, though its violation might have been good ground for excommunication 
 in the Ecclesiastical Courts. — Ed.] 
 
 2 12 Geo. in. c. 20. For an account of the peine forte et dure, see Palgrave, 
 Eng. Comm., (Proofs) clxxxix. Stephen, Comm. iv. 476, [and Bigelow, 
 Hist. Eng. Proc, 324. — Ed.]. 
 
 ^ ' Trial by jury, according to the old English law, was a proceeding essen- 
 tially 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 unquestionable, though accom- 
 panied by many imperfections — such benefits are not to be exactly identified 
 
 c.H. N 
 
178 Administrative System under the [Ch, 
 
 I^ater The later development, common to the Civil and Criminal 
 
 of the Jury. Jui'y alike, by which the jurors gradually changed from wit- 
 nesses into judges of fact, the proof of which rested exclu- 
 sively on the evidence of others, has now to be considered. 
 The number of the recognitors was at first undefined, but 
 when Glanvill wrote, under Henry II., twelve appears to 
 have been the usual, though not the invariable, number 
 Unanimity mentioned in the King's writs. We have seen that it was 
 
 of Jury. , , . 11, . , . 
 
 necessary that twelve jurymen should concur m 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 a unanimous 
 
 verdict of twelve was re-established.^ 
 
 Special wit- Under Henry III. special witnesses (such as the wit- 
 
 nfoneVas"^" ^^^^ses to a deed) were sometimes summoned together 
 
 part of the with, and formed part of, the Jury. 
 
 lien. m. ' I^ the Year Books of 23rd Edward III. mention is made 
 Witnesses } of witnesses being adjoined to the Jury to give them their 
 w" 2^^°"^ testimony, but without having any voice in the verdict. 
 Kdw. II r. ' This is the first indication of the Jury deciding on evidence 
 
 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 a'rgued before them : they, the jurymen, were the witnesses themselves, 
 and the verdict was substantially 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 pri- 
 mitive form a trial by jury was therefore only a trial by witnesses ; and jurymen 
 were distinguished 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 obtained their degree and influence in society,* — Palgrave, op. cit., 
 i. 243. 
 
 1 [Bigelow, Btst. Proc. Eng., 5, 259, citing Glanvill's testimony at both 
 places, thinks that in the Recognitions, 'judging from the analogy of compur- 
 gation and witnesses, ... if there was not at least a substantial agreement in 
 the truth of the allegation of the party who had sought the recognition, his 
 case must have failed.' — Ed.] 
 
v.] Norman and Plantagenet Kings. 1 79 
 
 formally produced in addition to their own knowledge, and 
 forms the connecting link between the ancient and the modern ' 
 Jury} 
 
 Early in the reigfn of Henry IV. a further advance was Temp. 
 
 J All .J . 1 . t. . ..,1 ^Hen. IV. 
 
 made. All evidence was required to be given at the bar of evidence 
 the court, so that the Juds^es mi^ht be enabled to exclude given at the 
 
 ' -/ fc> to bar of the 
 
 improper testimony.^ court. 
 
 From this change flowed two important consequences : Conse- 
 (i) From the exercise of control on the part of the Judges this. 
 sprang up the whole system of rules as to Evidence. 
 {2) The practice of receiving evidence openly at the bar of 
 the Court produced a great extension of the duty of an 
 advocate. Henceforward * 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 were now entrusted.' ^ 
 
 In the treatise of Chief Justice Fortescue, * De Laudibus Temp. 
 Legum Angliae,' written soon after the year 1450, we ^^e jury 
 liave clear evidence that the mode of procedure before nearly the 
 
 . same as at 
 
 juries by viva voce evidence was the same as at present* present: 
 
 But Juries were still for a long time entitled to rely on But still en- 
 their own knowledge in addition to the evidence. Ii^ on their own 
 the first year of Queen Anne, the Court of Queen's Bench ivnowiedge : 
 decided that if a Jury gave a verdict of their own know- 
 ledge, they ought so to inform the Court, that they might 
 be sworn as witnesses. This, and a subsequent case in down to 
 the reign of George I., at length put an end to all remains George r. 
 •of the ancient functions of Juries as recognitors.^ 
 
 In the same way the ancient rule requiring jurors to J^^'^^ as to 
 
 v enue. 
 
 ^ Spence, Eq. Juris, i. 129. 
 
 2 In a reported case of 1 1 Hen. IV. , a verdict was set aside because the Jury, 
 on retiring to consider their verdict, had taken with them an escrow which had 
 not been proved in evidence at the bar by the party, nor delivered to them by the 
 Court. Starkie, Trial by Jury, (Law Review, No. iv. , Aug. 1845, p. 397). 
 
 2 Starkie, Trial by Jury, {Law Review, No. iv., Aug. 1845.) 
 
 " Fortescue, De Laud. Leg. Ang. c. 26; Hallam, Midd. Ages, ii. [400]. 
 
 * Spence, Eq. Juris, i. 130. 
 
 N 2 
 
t8o 
 
 Administrative System under the [Ch. 
 
 Writ of 
 Attaint. 
 
 Abolished 
 Geo. IV. 
 
 Its object 
 effected by 
 new trial. 
 
 Juries fined 
 and im- 
 prisoned. 
 
 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 11.,^ and it was directed that juries should 
 be summoned from the body of the county. 
 
 While the jurymen were mere recognitors, or witnesses, 
 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 H., 
 was restricted to pleas of assize only (novel disseisin, &c.), 
 but was afterwards, by various statutes, extended to ' every 
 plea, real as well as personal.' ^ 
 
 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 into use.*"* In 1757, Lord 
 Mansfield said ' the writ of attaint is now a mere sound in 
 every case ; ' ^ but it was not legally abolished till the reign 
 of George IV.^ 
 
 Long before the legislative abolition of attaint, the im- 
 portant object which that proceeding indirectly attained — 
 a review of the first verdict — had been otherwise secured, 
 in practice, by the motion for a new trial and rule there- 
 upon granted, the first recorded instance of which occurred 
 in the year 1665.'' 
 
 Besides the legal method of attaint, there was also 
 
 1 4 & 5 Anne, c. 16, and 24 Geo. II. c. 18. 
 
 2 34 Edw. III. 0. 7. An attaint lay in Civil cases only. Bushell's case, State 
 Trials, vi. 999; Hawkins, Pleas Cr., bk. i. ch. 72, s. 5. 
 
 3 Broom, Constitutional Law, 154. [2nd ed. by G. Denman, 1885.] 
 ■* Smith, Commonwealth (ed. 1635), "i- ch. 2, p. 207. 
 
 ^ Bright V. Eynon, i Burr. 393. 
 
 ^ 6 Geo. IV. c. 50, s. 60. 
 
 " Forsyth, Hist, of Trial by Jury, 186. 
 
v.] Norman and Plant agenet Kings. i8i 
 
 another and illegal method of punishing- a Jury for a false 
 verdict, frequently employed by the Tudor and Stuart 
 sovereigns for political purposes. This was by fine and 
 imprisonment by the Court of the Star Chamber. In the 
 first year of Queen Mary's reign, in 1554, Sir Nicholas ^?v iV/,/^^/aj 
 Throckmorton was tried and acquitted by a Jury on a ,^J^.^'J_j. 
 charge of high treason in connection with Sir Thomas case, 1554. 
 Wyatt's rebellion. Thereupon ' the Court, being dissatisfied 
 with the verdict, committed the jury to prison.' Some of 
 the Jury apologised and were liberated, the rest were fined 
 by the Court of Star Chamber and kept in prison till the 
 fines were paid.^ 
 
 After the abolition of the Star Chamber, the Crown immunity of 
 made use of the Judges to intimidate Juries. At length the jlSfgher-^^" 
 immunity of Juries was finally established in 1670, by the 
 celebrated decision of Chief Justice Vaughan in BusheWs BusheiVs 
 Case? Edmund Bushell was foreman of the Jury who ''''^' ^^7°* 
 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 \^s. 4^.) ; 
 and Bushell, having been committed to prison for refusing 
 to pay, sued out his writ of habeas corpics in the Court of 
 Common Pleas. On the return being made that he had 
 been committed for finding a verdict * against 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 General 
 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.''^ This question came 
 
 1 I State Trials, 869. 
 
 2 6 State Trials, 999. [Denman's Broom's Const. Lazv, 117-38. — Ed.] 
 ^ 6 State Trials, 1013. 
 
1 82 Administrative Syste^n under the [Ch. 
 
 up again with reference to the law of Libel. In the trial of 
 
 the Seven Bishops, in 1688, the Jury asserted 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 rights 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,. 
 
 Fox's Lihel of Fox's Libel Act (32 Geo. IIL c. 60), which, in the form 
 
 c , 1792- qI" ^ declaratory law, enacted that the Jury may give a 
 
 general verdict of guilty or not guilty upon the whole 
 
 matter put in issue.'^ 
 
 The Kings After the old Curia Regis had been permanently split up 
 
 Cound"^or ^^^^ ^^ three separate Courts of King's Bench, Common 
 
 Conciluun Pleas, and Exchequer, each under its own chief, the 
 
 * ancient personal jurisdiction of the King still continued 
 
 to be exercised by him in his ' Continual ' or Ordinary 
 
 Council (the source of the later Privy Council), - not only 
 
 as an upper court of appeal, but as a direct court of Royal 
 
 justice in all cases which had not been specially delegated 
 
 to the recently constituted courts of Common Law. It 
 
 was, however, during the minority of Henry IIL that the 
 
 King's Continual or Permanent Council, as distinct alike 
 
 from the Curia Regis of Henry II.'s time and from the 
 
 Commune Concilium Regni, acquired special prominence 
 
 and strength. It comprised not only the officers of State 
 
 * See May, Const. Hist. ii. 253-263. 
 
 2 The term * Privy Council ' does not appear to have been used until after 
 the reign of Hen. VI. ; secreHtm concilium occurs in Hemingburgh (ii. 20) ; 
 and Walsingham (ii. 48), speaking of the abrogation of Acts of Pailiament by 
 Richard H. and his Council, says, Rex cu??i privato consilio ; but the usual 
 style was ' continual ' or * ordinary ' council. A distinction was probably 
 always made according to the nature of the business ; subjects of purely politi- 
 cal 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 modern 
 Cabinet. 
 
v.] Norman and Plantagenet Kings, 183 
 
 and of the Royal household, with the whole body of the 
 Judges, but a varying number of Bishops and Barons, as well 
 as other members, both clerical and lay, whose sole official 
 status appears to have been that of counsellors.^ Main- 
 tained by Henry III. throughout his long reign, and adopted 
 and further developed by Edward I., the Royal Council 
 became henceforth the special representative and instru- 
 ment of the Kingly power acting side by side with, often in 
 opposition to, the power of the National Council. The Royal 
 Council, as its designation ' Continual ' denotes, was always 
 sitting for the despatch of business,^ and for that purpose it 
 occupied different chambers about the Palace, among which 
 the Star Chamber, la Chambre des Etoiles, is specially men- 
 tioned in the records of Edward III.'s reign.^ Its powers its extensive 
 were most extensive and indeed indefinite. It was the ^""^"^ 
 King's standing council of advice in all matters of adminis- 
 tration ; it received, discussed, and remitted to the proper 
 courts a vast number of petitions, which were constantly 
 being presented, praying for relief in various matters of 
 Judicial cognisance ; ^ it exercised by itself, in conjunction 
 with the Lords' house in Parliament, a very great jurisdic- 
 tion in causes both Civil and Criminal ; and in matters of a 
 temporary, partial, or comparatively unimportant nature,, 
 it assumed, by issuing ordinances claiming the force of 
 statutes, the exercise of Legislative powers. 
 
 As regards the particular description of Judicial business. 
 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.^ The Council also 
 
 1 See Stubbs, Const. Hist. ii. 40, 255 seq. 
 
 2 Sir N. H. Nicolas, Preface to Proceedings of Privy Council, p. iii. 
 
 3 31 p:dw. III. St. I, c. 12 ; Spente, Eq. Juris, i. 330. 
 
 ^ 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 pro- 
 vided,' &c. — Hardy, Introd. to Close Rolls, p. xxvi. 
 
 5 Supra, p. 164. 
 
r84 Administrative System under the [Ch. 
 
 exercised a convenient and salutary jurisdiction in cases of 
 injury and oppression where, from the heinousness of the 
 offence, the rank or power of the defendant, popular riots, 
 or other causes, 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. The rapine and oppres- 
 sion committed by the powerful nobility during the Middle 
 Ages, more especially under the weak administration of the 
 Lancastrian Kings, frequently called for the interposition 
 of this paramount authority.^ 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 cuin causa (by which the cause 
 itself and the body of the defendant were brought to be 
 dealt with by the Council) was sometimes given.^ The 
 Council had also the power of issuing writs into all special 
 jurisdictions or franchises, such as Wales and Ireland ; ^ 
 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 
 jurisdiction Ordinavium 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 subjects. This 
 
 1 In * Provisions for the good governance of this land, that the Lordes, which 
 ben of the K. Counsaill desireth,' of the 2nd year of Henry VI., subsequently 
 embodied, with additions, in the Articles for the Regulation of the Council 
 agreed to in Parliament, the 8th year of his reign, we read : * Item, that 
 alle the billes that comprehend materes terminable atte the commune Lawe, 
 .... be remitted there to be determined ; but if so be that the discrecion of 
 the Counsaill feele to greet viyght on that oo sydeand unmyght oo that othir, [or 
 elles other cause reasonable yai shall move hem.'] — Rot. Pari. iv. 201, [343]. 
 
 2 Palgrave, Essay on the Jurisdiction of the King's Council, 90, 134. 
 
 3 Ibid., p. 19. 
 
 < Rot. Pari. iv. 201. 2 Hen. VI., 1423. ' Item that the Clerc of the 
 Counsail be sworn, that every day that the Counseill sitteth on ony Billes 
 bitwyx partie and partie, that he shall, as fer as he can, aspye which is the 
 porest Suyturs Bilk, and that first to be redd and ans7uered, and the A'ing^s 
 Sergeant to be sworne trewly and plainly, to yeve the poor Man that for suche 
 is accept to the Counsail, assistense and treiv Counsaill in his matere so to be 
 suyd, wythoute eny good takyng of hyin, on peyne of discharge of ther Offic*.' 
 
v.] Norman and Plantagenet Kings. 185 
 
 great officer, independently of his connection with the 
 Council, exercised an ordinary legal jurisdiction of much 
 importance.^ But in the reign of Edward I. we begin to 
 perceive signs of the rise of the extraordinary or Equitable 
 jurisdiction of the Chancellor. The numerous petitions 
 addressed to the King and his Council, seeking the inter- 
 position of the Royal grace and favour either to mitigate the 
 harshness of the Common Law or supply its deficiencies, had 
 been in the special care of the Chancellor, who examined 
 and reported upon them to the King. The inconvenience 
 arising from the * multitude ' of petitions in the year 1280, 
 caused a special order to be issued by Edward I., directing 
 that all petitions be examined, and according as they 
 concerned the Seal, the Exchequer, the law of the land, or 
 Jewry, they should go primarily to the Chancellor, the 
 Exchequer, the Justices, or the Justices of the Jewry. But 
 if the wants of the petitioners were of a nature so great, or so 
 much of grace, that the Chancellor and the Justices could 
 not act without the King, then they should be brought 
 before the King to learn his will ; but so that no petition 
 come before the King and his Council except by the hands 
 of the Chancellor and the other chief Ministers.^ This 
 monarch was wont to assign by writ under the privy seal 
 certain of the petitions addressed to him, praying extra- 
 ordinary remedies, to the Chancellor and Master of the 
 Rolls, or to either separately, with directions to give such 
 remedy as should appear to be consonant to honesty (or 
 equity, honestati)^ 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 cancellariaej^ At length, in 1348, by a writ 
 
 ^ 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. 
 
 2 Rot. Claus. 8 Edw. I., in Ryley's Placita Pari. 442. 
 
 •* Spence, Eq. Juris, i. 335. * Quale de jure et gratia cancellariae ' occurs 
 in a writ of 12 Edw. I. 
 
 * Lord Campbell's Chancellors, i. 204. 
 
1 86 Administrative Syste^n under the [Cn. 
 
 or ordinance of the 22nd year of Edward III., all such 
 matters as were of Grace were directed to be despatched by 
 the Chancellor or by the Keeper of the Privy Seal.^ This 
 was a great step in the recognition of the Equitable jurisdic- 
 tion of the Court of Chancery as distinct from the Legal 
 jurisdiction of the Chancellor and of the Courts of Common 
 Law,^ although it was not until the following reign that it 
 can be said to have been permanently established. 
 Encroach- But the Council and the Chancellor, not content with 
 Council on their admitted sphere of action, unconstitutionally assumed 
 thejunsdic- original jurisdiction in cases cognisable at Common Law. 
 Common In direct violation of the liberties guaranteed by the 
 i^aw. Great Charter, men were arbitrarily imprisoned without 
 
 the legal process of indictment or presentment, and their 
 A series of lands seized into the King's hands. During the reign of 
 passed^in Edward III. a series of statutes were passed, in answer 
 restraint of to the repeated complaints of the Commons, restraining 
 and Chan-' these illegal invasions by the Council upon the rights of 
 eery. property and personal liberty. In the 5th Edward IIL 
 
 (1331), it was enacted that ^ no man from henceforth shall 
 be attached by any accusation, nor forjudged 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.' ^ Twenty years later, the Commons 
 again petitioned against the illegal proceedings of the 
 Council. Receiving a somewhat unsatisfactory reply from 
 the King, they repeated their petition to Parliament in the 
 
 ^ Sir T. Duffus Hardy, Introduction to Close Rolls, xxviii, 
 
 2 <gy "equitable jurisdiction" must be understood,' says Lord Campbell, 
 * the extraordinary interference of the Chancellor, without common-law pro- 
 cess 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 
 ccquum et bonum, which was enforced by imprisonment. Such a jurisdiction 
 had belonged to the Aula Regia, and was long exercised by Parliament ; and 
 
 when Parliament was not sitting, 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.* 
 [Lives of the Chancellors, i. 8, 9. — Ed.] 
 
 3 5 Edw. IIL c. 9. 
 
v.] Norman and Plantagenet Kings. 187 
 
 following year (1352), and obtained the enactment of a 
 statute which, expounding the words of Magna Charta, 
 explicitly declares : — ' Whereas it is contained in the Great 
 Charter of the Franchises of England that none shall be 
 imprisoned nor put out of his freehold, nor of his franchises 
 nor free custom, unless it be by the Law of the Land ; it 
 is accorded, assented, and established, That from henceforth 
 none shall be take7i by petition or suggestion, made to our lord 
 the King or to his Council, tmless it be by indictfnent, or pre- 
 sentment of good and lawful people of the same fieighbour- 
 hood where such deeds be done, ifi due manner, or by process 
 made by writ original at the common law, nor that none be 
 ousted of his franchises nor of his freeholds, unless he be 
 duly brought into 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.' ^ 
 
 Similar provisions were contained in a short enactment 
 of the 28th of Edward IIL ;^ yet in the 36th of the same 
 reign (1362) we find the Commons again complaining, and 
 it was ' ordained and established by the assent of the 
 prelates, dukes, earls, barons, and the commons, that the 
 charters and statutes be held and put in execution accord- 
 ing to the said petition.' ^ In the following year another 
 statute was passed in these terms : * Though it be 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 suggestions to the 
 King himself as well for malice as otherwise, whereat the 
 King is often grieved and divers of the realm put in damage 
 
 1 25 Edw. III. Stat. 5, c. 4 (Stat, of the Realm, i. 321). 
 
 2 28 Edw. III. c. 3. 
 
 ^ Rot. Pari. ii. 269. The mention here of Dukes as a separate rank is note- 
 worthy. The title had been bestowed for the first time in England only twenty- 
 five years previously (in 1337), when the Black Prince was created Duke of 
 Cornwall. Henry, Earl of Lancaster, [great-grandson of Henry] HI., was, in 
 I35[i], the next recipient ; [he d. 24 Mar. 1360] and his title was revived this 
 very year, 1362, in his son-in-law,. John of Gaunt. The only other English 
 Duke then in existence, besides the Black Prince and John of Gaunt, was 
 their brother Lionel, created Duke of Clarence [15 Sept. 1362]. [On the title 
 of Clarence, revived, 1890, cf. N. 6^ Q., 7th S. ix. 481, x. i, seqq.—^Y).^ 
 
1 88 Administrative System under the [Ch. 
 
 against the form of the said Charter; wherefore it is 
 ordained that all they which make such suggestions shall 
 be sent with the same suggestions to the Chancellor, Trea- 
 surer, 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 ; mid that then process of 
 law be made against them without being taken or imprisoned 
 against the form of the said Charter and other statutes.^ ^ 
 
 In the 42nd year of Edward III. (1368) the Commons 
 again petitioned : * Because many of your commons are 
 hurt and destroyed by false accusers, who make their 
 accusations 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 pain con- 
 trary to the law : That it would please our lord the King, 
 and his good Council, for the just government of his 
 people, to ordain that, if hereafter any accuser propose any 
 matter for the profit of the King, the same matter be 
 sent to his Justices of the one bench or of the other, or of 
 the Assizes, to be inquired of 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 
 
 1 37 Edw. III. c. 18 ; Stat, of the Realm, i. 384. Hallam (Midd. Ages, 
 lii. 253,) appears to have misapprehended the purport of this obscurely-worded 
 statute in saying that it * recognizes in some measure those irregular proceed- 
 ings before the council by providing only that those who made suggestions to 
 the chancellor 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. 
 
v.] Norman and Plantagenet Kings. 189 
 
 the ancient law of the land. And if anything henceforth 
 be done to the contrary, 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 Great Charter, the King willeth that 
 this be done, as the petition doth demand.' ^ 
 
 Acts of Parliament, however, were of little avail against Little effect 
 the stubborn perseverance of King and Council in retain- restraining 
 ing the power which they had been so long accustomed to statutts. 
 use. The Civil jurisdiction of the Council was at this time 
 principally exercised in conjunction with the Chancery, 
 now growing into importance, and the two are henceforth 
 generally named together in the remonstrances which the 
 Commons still from time to time continued to present. To 
 a petition in the 13th of Richard II. (1389), 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 whole people, and that no judgment 
 rendered be annulled without due process of law,' ^ the 
 King returned the unsatisfactory answer ; ' Let it be done 
 as has been usual heretofore, provided the royal preroga- 
 tive be saved (issint que la Regalie du Roi soit sauve) ; 
 and if any one feel aggrieved, let him show it specially and 
 right shall be done him.' ^ 
 
 During Richard II.'s reign, especially in the second chan- 
 cellorship of Archbishop Arundel, the Equitable jurisdic- 
 tion of the Chancery was much extended, and the famous 
 writ of subpoena came into use as invented or improved by The Writ of 
 John de Waltham, Master of the Rolls. This innovation ^''^'P''^'"'- 
 does not appear to have merited the great importance 
 attached to it,* but it was highly unpopular at the time, and 
 
 1 42 Edw. III. c. 3, and Rot. Pari. ii. 295. 
 
 2 * Et que null Juggement renduz soit adnulle sanz due proces du Ley. ' 
 Hallam [M. A. iii. 139] translates this passage with less than his usual accuracy, 
 in a manner which materially alters its sense. 
 
 3 Rot. Pari. iii. 266. 
 
 ■* Lord Campbell's Chancellors, i. 246. 
 
iQO Administrative System under the [Ch. 
 
 excited vigorous complaints from the Commons. The 
 lawyers, too, of the ordinary courts, manifested much pro- 
 fessional 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 
 regarded his office with distrust.^ Nothing more, however, 
 Act of 1393, was effected in this reign than the passing the Act of 1393, 
 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 in- 
 effectual, but which was used as a Parliamentary recognition 
 of the authority of the court, and a pretence for refusing to 
 establish any other check upon it.^ 
 Permanent From the passing of the statute 17 Richard II. at the 
 ment of the l^'tcst, the Court of Chancery may be regarded as a dis- 
 Chancellor's tinct and permanent Court, having separate jurisdiction, 
 
 equitable . i • i. i r i • -i i 
 
 jurisdiction. With its own peculiar mode of procedure, similar to that 
 which had prevailed in the Council.* 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 
 
 ' ' 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 prohibited it from 
 being any longer cited in the common law tribunals.' — Spence, Eq. Juris, 
 i. 346. 
 
 - 17 Ric. II. c. 6. 
 
 ^ Lord Campbell's Chancellors, i. 257. 
 
 ^ Spence, Eq. Juris, i. 345. Suits in Chancery were commenced by petition 
 or bill, without any preliminary writ, followed by a subpoena summoning the 
 party complained against to appear before the court and make answer. Dis- 
 puted 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. 
 
v.l Norman and Plantagenet Kings, 191 
 
 Edward IV., although the Judges still disputed the Chan- 
 cellor'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.^ 
 
 The Continual or Ordinary Council has been considered Magnum 
 with reference to its independent jurisdiction : but it was ^''"^^ ^^""" 
 also equally conspicuous in its relation to the High Court 
 of Parliament. The growth of the National Parliament 
 has yet to be considered ; but we may anticipate so far as 
 to note that even after the permanent establishment of a 
 Parliament of the three Estates under Edward I., the 
 baronage, spiritual as well as temporal, still retained, inde- 
 pendently of Parliament, certain powers which had been 
 theirs when they alone constituted the Commune Con- 
 cilium Regniy and which they ultimately transmitted to the 
 House of Lords.^ Under the title of Magnum Concilium 
 Regis et Regni they continued to meet at intervals during 
 the 13th and 14th centuries, sometimes in conjunction with 
 the King's Continual Council, and occasionally also in an 
 assembly containing all the elements of Parliament, ' sum- 
 moned to meet, but not under the proper parliamentary 
 style.' As the Commons took no part in ih^ judicial power 
 of Parliament,^ 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 bleiided 
 with the Ordinary Council. It is from the mixed powers odgin of the 
 of this assembly, and the double capacity of the Peerage JjJ<^^c^^^ 
 
 the House 
 
 of Lords 
 
 ^ Palgrave, Authority of the King's Council, 97 ; Spence, Eq. Juris, i. 
 
 349. 
 
 2 Stubbs, Const. Hist. ii. 204. 
 
 3 The Commons acknowledged in the ist 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 peti- 
 tions 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. [Cf. Clifford, Private Bill Legislatiotty i. 275, n. i, 279, 
 n. 2, 287. — Ed.] 
 
192 Administrative System under the [Ch. 
 
 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,^ 
 and of the and the Privy Council its legislative character, which it 
 character of attempted to carry out in the shape of Ordinances.^ The 
 the Privy Judges and other official members of the King's Continual 
 Council originally attended as constituent members of the 
 Great Council, and in that capacity, although not Peers, 
 seem to have had the right of suffrage ; ^ but under Edward 
 in. or Richard II. the Lords successfully asserted their 
 ascendancy over the Judges and rest of the Council, and 
 took the decisive jurisdiction into their own hands.^ Their 
 ancient colleagues of the Council, not being lords, were 
 thus reduced to the position of assistants and advisers, a 
 position which they have ever since held in the Judicial 
 proceedings of the Upper House, the heir and representa- 
 tive of the mediaeval Great Councils. 
 Judicial The original tribunal, the King's Continual Council, re- 
 
 Pri^y'^^° tained throughout its extraordinary jurisdiction. After 
 throwing off as branches or offsets the Court of Requests,^ 
 and the more famous Court of Star Chamber, it transmitted 
 its Judicial powers to the Privy Council, by whom, through 
 the medium of a Judicial Committee,^ 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 judica- 
 ture of the lords must be supported.' — Hallam, Midd. Ages. iii. [144]. But 
 the House of Lords may also be regarded as inheriting the Judicial functions of 
 the Witenagemot. [As to the Council, cf. Hallam, n. xi., loc. cit, — Ed.] 
 
 2 Stubbs, Select Chart. Introductory Sketch, 23. 
 
 3 Hale, Jurisdiction of the Lords House [ed. by Hargrave, pp. 6, 8. — Ed.]. 
 ■* Palgrave, King's Council, 54; Hallam, Midd. Ages, iii. [144]. 
 
 ^ The Court of Requests, a minor Court of Equity, is supposed to have had 
 its origin in an order of the 13th Richard IL 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 pre- 
 sent 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. lo.— Palgrave, King's Council, 79, 99 ; 
 Spence, Eq. Juris, i. 351. 
 
 " The Judicial Committee of the Privy Council was established by 3 & 4 
 
 Council. 
 
v.] Norman and Plantagenet Kings. 193 
 
 As regards the origin of the Court of Star Chamber, it Origin of 
 has already been mentioned that in the reign of Edward star Cham- 
 III. the King's Continual Council was in the habit of sitting ^^''• 
 in what was called the Starred Chamber {la Chambre des 
 Etoiles)} After the establishment of the Court of Chancery 
 as a separate and independent jurisdiction taking cogni- 
 sance 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,^ * against the 
 proceedings before the council in causes civil and 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., apparently prompted New Court 
 by a desire to restore in a new and more legal form a juris- Henry Vll. 
 diction which had now become almost obsolete, created, in 
 the 3rd year of his reign, a new court, sometimes inaccu- 
 rately called the Court of Star Chamber. This new Court 
 consisted of the Chancellor, Treasurer, and Lord Privy Seal, 
 and any other 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 VI 1 1, c. 20, the President of the 
 Council was added to the number of the Judges. Neither 
 in this statute, 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 
 Continual, or as it was now termed Privy, Council, it was 
 practically a judicial committee of that body. It continued 
 
 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. 
 
 * Supra, p. 183. 
 
 2 Jurisdiction of the Lords House, 39 [ed. by Hargrave, Lond. 1796. — Ed.], 
 
 3 3 Hen. VII, c. i. 
 
 C.H. O 
 
194 
 
 Administrative System tmder the [Ch. 
 
 Jurisdiction 
 of the old 
 Star Cham- 
 ber revived 
 under Henry 
 VIII. 
 
 Nature of 
 jurisdiction 
 of the re- 
 vived Court. 
 
 A court of 
 * Criminal 
 Equity.' 
 
 Its ]ninish- 
 ments. 
 
 to exist as a distinct tribunal from the Privy Council till 
 towards the close of the reign of Henry VIII. ; but in the 
 meantime, probably during the chancellorship of Wolsey, 
 the jurisdiction of the ancient Star Chamber (i.e, the 
 Council sitting for judicial business) was revived, and in it 
 the limited court erected by Henry VII. became gradually 
 merged. In the revived court, the Lord Chancellor (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 Stuart Kings the court was practi- 
 cally 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 unlawful deten- 
 tion of ships, and other matters of maritime law ; 
 certain testamentary causes, and suits between corporations. 
 These were gradually absorbed by the Admiralty, Chancery, 
 and Common Law 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 cognisance 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 Pro- 
 clamations themselves. Fine and imprisonment were the 
 usual punishments inflicted ; but the court was held compe- 
 tent to pronounce any sentence short of death. The fines 
 were frequently of enormous amount, and though, as a rule, 
 
v.] Norman and Plantagenet Kings, 195 
 
 they were reduced or remitted, they in many cases proved 
 ruinous to the sufferers. Under the Stuart Kings the 
 pillory, whipping, and cruel mutilations were inflicted upon 
 political offenders 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 Aboiisheii lii 
 abolished by the Long Parliament in 1641.^ ^^^i- 
 
 One of the special characteristics of the English Consti- Police and 
 tution — the permanence combined with progressive deve- ^nfsatlon^ 
 lopment 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 inva- 
 sion. There were two principal methods by which these 
 ends were attained in ancient times, the one civil, the other 
 military : (i) The police organisation of the mutual _/r///^- The Frith- 
 horky or frankpledge, supplemented by the *hueandcry' ^^^* 
 in pursuit of offenders, in which all the inhabitants of the 
 hundred or tithing were bound to join ; (2) the fyrd, or The Fyrd. 
 national militia, available not only for the defence of the 
 country, but for the maintenance of peace at home. 
 Service in this national force was one of the three duties — 
 the trmoda necessitas — to which all alodial proprietors were 
 subject. These primitive institutions, which may be 
 traced to the laws of Edgar and Cnut, and had probably 
 been customary for [some centuries], are all met with in full 
 vigour long after the Norman Conquest, ' working their 
 way through the superstratum of feudalism and gaining 
 strength in the process.' ^ 
 
 The fyrdy the armed folk-moot of each shire, was 
 
 originally the only military system known to our ancestors. 
 
 The Danish conqueror, Cnut, introduced the germ of a The Hus- 
 
 carlsofCnut. 
 
 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 consti- 
 tution, these early methods of ensuring peace and defence * are ancient but- 
 tresses 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. 
 
196 
 
 Administrative System under the [Ch. 
 
 Employ- 
 ment of 
 mercenary 
 troops. 
 
 Assize of 
 Arms, 1 181. 
 
 The ancient 
 
 Fyrd 
 
 revived. 
 
 standing- army in the body-guard with which 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 the feudal vassals 
 were bound by tenure, and their general unmanageableness, 
 caused both William the Conqueror and the succeeding 
 Norman and early Angevin 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 in the battle of the Standard, in 1 138, 
 which was won by their exertions, and again in 1 174, at 
 the battle of Alnwick. The introduction of Scutage, on the 
 occasion of the Toulouse war in 1 1 59, 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 pre- 
 vented 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 circum- 
 stances, the King determined to resuscitate the ancient 
 national force. By the Assize of Arms, issued in the year 
 1 181, in addition to requiring every military tenant to 
 possess a coat of mail, with helmet, 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 16 marks should be armed in like manner; 
 that he who was worth only ten marks should possess a 
 habergeon, an iron skull cap, and a lance ; and that all 
 burgesses and the whole community of freemen {tota com- 
 muna 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 
 
v.] Norman and Plantagenet Kings, 197 
 
 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 enroll their names 
 in separate classes, with the nature of the arms apper- 
 taining to each ; and then, after causing the schedule to be 
 read in open court, to oblige all to swear that they would 
 provide themselv^es with these arms within a stated time, 
 and be true and faithful to the King.^ 
 
 The two military systems, the ancient Alodial and the '^^^ Alodial 
 
 T- / 1 . 1 r . -11 -1 ^^^ Feudal 
 
 more modern Feudal, contmued for some time side by side military sys- 
 without coalescing, but tending more and more to amalga- ^^^^ ^™^^" 
 mate into the general national armament which we meet under Henry 
 with under Henry III. and Edward I. 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 defence 
 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 king- 
 dom as long as need shall require. So far, the military 
 tenants only are affected ; but a connection 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 penalties for neglect, which were, in the case of a 
 knightly or other landholder (unless his absence had arisen 
 from 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 
 {ipsi et haeredes sui servi fient in perpetuum), with the obli- 
 gation to pay an annual poll tax of four pence each.^ 
 
 ^ Benedict. Abb. i. 278 ; Hoveden, ii. 261. 
 
 2 Cum assensu archiepiscoporum, episcoporum, comitum, baronum, et 
 omnium fidelium nostrorum Angliae. [Sel. Chart. 273. — Ed.] 
 
 3 Patent Rolls, i. 55. More than five centuries before, the laws of Ina of 
 
198 Administrative System under the [Ch. 
 
 In the following reign we find the two military forces 
 amalgamated for the purposes of national defence. In 
 1 2 17, a writ, issued during the minority of Henry III.,. 
 shortly after the battle of Lincoln, and while Louis of 
 France was still in the country, directs the Sheriff of Berk- 
 shire to bring up the whole force of his county, both the 
 feudal levy and also the jiirati ad arma^ the ancient local 
 militia as reorganised under the Assize of Arms.^ 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 anna} 
 Expansion Concurrently with the development of the ancient fyrdy 
 ancient ^hc primitive police organisation had also been undergoing 
 police organ- ^ process of expansion. The system of frankpledge was 
 
 isation con- . . , . , . , . t 
 
 currently mamtamed with even mcreased stnngency. It was en- 
 J!,^^'/!^f ^^^ forced by an injunction of William the Conqueror, and by 
 the Assize of Clarendon under Henry II."^ By a Royal 
 decree issued in 1195, by Archbishop Hubert, Richard I.'s 
 Knights Chief Justiciar, the ' hue and cry ' was enforced, and knights 
 /^^w/^Ric. I. were assigned to receive the oaths for the preservation of 
 the peace. All men above the age of fifteen years were re- 
 quired to swear to keep the peace to their lord the King ; 
 
 Wessex («>. 690) had declared [c. 51] : * If a gesithcund man owning land neg- 
 lect the '■^fyrcf'' let him pay cxx. shillings and forfeit his land ; one not owning 
 land, Ix. shillings ; a ceorlish man, xxx. shillings, as "fyrdwite." ' So, in the 
 laws of Ethelred {978-1016) [c. 28]: '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 exercitum, de quinque hidis tantum unus mile& 
 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 da- 
 l)antur. Si quis in expeditionem summonitus non ibat, totam terram suaixi 
 trga regem forisfaciebat. The customs of Oxfordshire were more lenient :. 
 (}ui monilus ire in expeditionem non vadit c. solidos regi dabit. — Select 
 Chart. 61, 72, 87. 
 
 * Report on Dignity of a Peer, App. p. 2. 
 
 2 Rymer, i. 200 ; Select Chart. [272], 334, 350. 
 
 ^ Stat. Will. Conq. 8 : Omnis homo qui voluerit se teneri pro libero sit iiv 
 plegio, ut plegius teneat et habeat ilium ad justitiam si quid offenderit. Et si 
 quisquam talium evaserit, videant plegii ut simpliciter solvant quod calumniatuna 
 est, et purgent se quia in evaso nuUam fraudem noverint. — And see the Assize 
 of Clarendon, capp. 9, 10, 15, i6 ; Select Chart. 81, 138-9. 
 
v.] Norma7i and Plant agenet Kings. i99 
 
 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 cus- 
 tody they should not be liberated, except by order of the 
 King or of his Chief Justice.^ 
 
 In this appointment of knights to receive the oaths may Conserva- 
 probably be discerned the germ of the office of Conservator peace. 
 of the Peace. Custodes pads were assigned in 1253 and 
 1 264.^ 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.^ 
 By an Act of i 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 main- 
 tainers of evil or barretors ' should be assigned to keep the 
 peace ; and a later statute in the same reign (34 Edward III., 
 c. I) ' gave them the power of trying felonies, when they justices of 
 acquired the more honourable appellation of justices.* ^ ^^^ Peace. 
 
 The office of county Coroner had already been instituted Coroners, 
 under Richard L, in 1194.^ The right of electing this 
 officer has always resided in the freeholders of the county. 
 In 1276 his duties were minutely prescribed by Edward I.'s 
 
 ^ R. Hoveden, iii. 299. In Edgar's Ordinance of the Hundred {Jlor. 
 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 tithingmcn, 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 
 Edmund.' 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 Rymer, i. 291, 292, 442 ; Select Chart. 365, 402. 
 
 3 Palgrave, Eng. Com. i. 300. 
 
 ^ Stephen's Commentaries, ii. 665. 
 
 ' In quolibet comitatu eligantur tres milites et unus clericus custodes 
 placitorum coronae.— Forma procedendi in placitis Coronae Regis, c. 20; 
 Hoveden, iii. 262. The coroner, coronator, 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 Commentaries, ii, 656. 
 
200 
 
 Administrative System under the 
 
 [Ch. 
 
 Watch and 
 Ward. 
 
 Watch and 
 Ward and 
 Assize of 
 Arms. 
 1252. 
 
 statute, De Officio Coronatoris, to which reference is still 
 constantly made.^ 
 
 In 1233, the old police organisation, proving inadequate, 
 was supplemented by a system of watch and ward in every 
 township throughout the country.* Twenty years later, 
 further regulations were issued extending and enforcing the 
 Watch and Ward, and combining it, for the preservation of 
 internal peace, with the Assize of Arms, (i) 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 in- 
 habitants. 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 
 conduct. 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. With the ex- 
 ception of those specially deputed to guard the Kmg's 
 peace, no persons were to be allowed to carry arms. (2) 
 The Assize of Arms was renewed and the classification re- 
 modelled, 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 shil- 
 lings in chattels.^ (3) All these were sworn to provide 
 
 ^ 4 Edw. I. Stat. 2. [For a recent historical account of the Coroner and his 
 duties cf. Law Magazine and Review^ No. CCLXIV., for May, 1887, Art. 
 Coroners and Fire Inquests^ by Sir Sherston Baker, Bart. — Ed.] 
 
 2 Writ of Hen. III. to the Sheriff of Kent : De forma pacis conservanda. 
 Rymer, i. 209. [Sel. Chart. 353. — Ed.] 
 
 3 The owner of land worth 2^1$ a year, and the owner of chattels of the 
 
v.] Norman and Plant agenet Kings. 20 1 
 
 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 autho- 
 rity over all being vested in the chief constable of each 
 hundred.^ 
 
 Under our English Justinian, Edward I., whose 'legisla- Statute of 
 
 Winchester, 
 
 tion is so full that the laws of the next three centuries are 13 Edward I. 
 little more than a necessary expansion of it,' ^ the celebrated ^^^5- 
 Statute of Winchester,^ which though now to a great extent 
 obsolete has been the foundation of modern laws, elabo- 
 rated 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. 
 
 The provisions of the Statute of Winchester with respect 
 to the arming of the men of each county were more imme- 
 diately directed to the preservation of internal peace, by 
 rendering more effective the power of summoning the posse 
 comitatus^ which the Sheriff, as chief conservator 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 thirteenth down to the middle of 
 the sixteenth century, it was customary, whenever invasion 
 was apprehended from Scotland or France, to empower 
 
 value of 60 marks (;^4o) 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 headpiece, sword, 
 $mall knife, and a horse. The other classes served on foot. 
 
 * Writs of 36 and yj Hen. III. (1252-3); Rymer, i. 281, 291 ; Select 
 Chart. 362, 365. 
 
 ^ Stubbs, Select Chart., Introd. 35. 
 
 ' 13 Edw. I. c. 6, 1285. 
 
202 Administrative System under the [Ch„ 
 
 Commis- special * Commissioners of Array ' to muster and train all 
 
 sions of '' 
 
 Array. or a portion of the men of each county capable of bearing 
 
 arms, and to hold them in readiness to defend the king- 
 dom. 
 Obligation The ancient obligation to keep sufficient arms according 
 enforced by '^ ^^ ^^^^ man's estate was enforced by statutes of Philip and 
 Acts of Mary, and the kind of weapons chansfed for those of more 
 
 Phihp and i r i • it t 
 
 Mary. modern fashion ; ^ but under James I. these provisions were 
 
 abrogated.^ 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-Lieutenant of his 
 
 The Militia, county. The command of the Militia, as the local forces 
 were usually denominated, formed the final ground of rup- 
 ture between Charles and his Parliament, the latter having 
 passed ordinances (26 Feb. and 6 March, 1642) superseding 
 the King's commissions of lieutenancy by the appointment 
 of fifty-five Commissioners of Array, with power to suppress 
 * all insurrections, rebellions, and invasions.' This proceed- 
 ing, however necessary it may have been at the time 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 
 
 * 4 & 5 Phil, and Mary, c. 2, and c. 3. Penalties were imposed on persons 
 absenting themselves when commanded to muster by the sovereign, or any 
 lieutenant authorised for the same. This was a new officer, the Lord Lieu- 
 tenant, introduced in this reign as the chief military officer of the Crown ir» 
 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. Thence- 
 forward 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. [The close re- 
 semblance between the positions of the ancient Earl or Ealdorman, and the 
 modern Lord Lieutenant, was pointed out by Mr. Goldwin Smith, in his 
 Lectures as Regius Professor of Modern History, Oxford, in Easter Term, 
 1863. From MS. notes of the Lectures. — Ed.] 
 
 2 I Jac. I. c. 25, s. 46. 
 
v.] Norman and Plajttagenet Kings, 203 
 
 House of Parliament could pretend to the same, nor law- 
 fully levy war, offensive or defensive, against the King.^ By 
 another Act, provision was made for calling together, arm- 
 ing, and arraying the Militia, by the King's lieutenants of 
 counties, and for charging the cost upon the landholders in The ancient 
 proportion to the value of their estates.^ But concurrently fo^ceTuLr- 
 with the growth of a Standing Army, the local forces seded by 
 languished for a lengthened period, until revived and Army Tf end 
 remodelled in 1757, in consequence of a panic caused by ^^ ^7th cen- 
 rumours of a French armament, as the national Militia? revived in 
 
 1757 as the 
 
 Militia. 
 
 ^ 13 Car. II., St. I, c. 6. 
 
 2 14 Car. II., c. 3. 
 
 ^ Hallam, Const. Hist. ii. 133, iii. [259]. Militiamen were to be chosen by 
 ballot to serve for a limited number of years, but were not to be compelled to 
 march out of their own country except in case of invasion or rebellion. Irv 
 1829, the practice was commenced and has ever since been continued, of 
 passing an annual Act suspending the Militia ballot, the supply being fur- 
 nished by voluntary enlistment. But the same Act which temporarily sus- 
 pends the law empowers the Queen in Council to at once order a ballot should 
 necessity require it. [The Constitutional results of the recent reconstruction 
 of the Army, including the introduction of so-called * Territorial ' Regiments, 
 and the close connection which has been effected between the Militia and the 
 Standing Army by the system of * linking ' Militia Regiments as subordinate 
 * Battalions ' of Regiments of the Line, are rather difficult to estimate. It 
 would seem as though it were not now possible clearly to distinguish between 
 the ancient National Force and the modern Standing Army, save in the fact 
 of the temporary character of the embodiment of the Militia, and the continued 
 restriction of its legal service to the defence of the country. 
 
 With regard to the Sheriff of the Angevin period. Sir Travers Twiss, in 
 vol. v. of his edition oi Bradon, Introd., xxiii., urges that 'the vicecomes of 
 the Angevin monarchs was a very different personage from the scirgerefa of 
 the Anglo-Saxon period. . . . The scirgerefa . . . was the executive officer 
 of the shire who carried into execution the judgments of the shiremoot in civil 
 and criminal matters. Under the Angevin monarchs the ealdorman had dis- 
 appeared from the political stage, . . . whilst the vicecomes in the name of 
 the king presided over the freeholders of the county. . . . Further, the vice- 
 comes had become the chief fiscal officer of the crown within the county, and 
 he had the command of the fyrd, which in Anglo-Saxon times could only be 
 summoned by the ealdorman. ' — Ed. ] 
 
204 
 
 CHAPTER VI. 
 
 THE SUCCESSION TO THE CROWN. 
 
 The English The elective character of the old English kingship, but 
 decdve^^ with the choice exclusively limited, under all ordinary 
 both before circuttistances, to the members of one Royal house, has been 
 Conquest, already discussed in a previous chapter.^ The Norman 
 Conquest introduced a new dynasty, and a more compre- 
 hensive 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 subse- 
 quently perfected by the ecclesiastical ceremony of inunc- 
 tion and coronation.2 So strongly m.arked was the elective 
 character of the kingly office that, even after the choice of 
 the Nation had been once made, the form of election was 
 again gone through by the clergy and people assembled in 
 
 1 Supra, p. 30, 36-37. 
 
 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 regarded as convey- 
 ing 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 recognised 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 seven- 
 teenth century to the ages of S. Gregory, Anselm, and Becket, seems an excess 
 of absurdity. ' — Ibid. p. 146 [and n. 2]. 
 
Ch. vl] The Succession to the Crown. 205 
 
 the church at the coronation.^ The doctrine of the heredi- Growth of 
 tary descent of the Crown gradually grew up, as the terri- of hereditary 
 torial idea of kingship superseded the personal idea,^ "S^^- 
 during the two centuries after the Conquest. As the King 
 of the English developed into the King of England,^ the 
 Feudal lord of the land, the kingdom came to be regarded 
 by kings and courtiers as the private possession of the 
 Sovereign, to be enjoyed for his own personal profit ; and 
 by degrees the feudal lawyers, arguing from a false analogy, 
 applied to the Crown the same principles of strict heredi- 
 tary right which had already begun to regulate the descent 
 of a private inheritance. But the forms of election and 
 coronation still continued, and periodically, as the throne 
 became vacant on the death of each Sovereign, bore wit- 
 ness to the fallacy of this legal theory.^ Edward II., who 
 succeeded in 1 307, was the first king whose reign was dated 
 from the day following the death of his predecessor. In 
 him, then, the principle of hereditary right appeared to 
 have finally triumphed over the old elective system. But 
 the true nature of the Crown as an office or trust, and the 
 continuing right of the Nation to regulate the succession 
 to it, were signally re-asserted not twenty years later, 
 by the formal deposition of this unfortunate King. This 
 
 ^ See Maskell, Monumenta Ritualia Ecclesiae Anglicanae, vol. iii. ; Free- 
 man, Norm. Conq. iii. 44, 623. 
 
 2 Supra, p. 47. 
 
 3 John was the first who called himself * Rex Angliae ' on his Great Seal ; all 
 his predecessors had been * Kings of the English.' 
 
 ** ' 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 coronation were, they did not 
 lose such real importance as they had possessed earlier, but furnished an im- 
 portant 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 exemplified in the form of charters. . . . The recog- 
 nition 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 allegiance imposed upon the whole people, and taken by every freeman once 
 at least in his life.'— Stubbs, Const. Hist. i. 338, 339. 
 
2o6 The Succession [Ch. 
 
 persistence of the national right to choose the Sovereign, 
 the same in principle whether applied to the individual 
 King or to the selected dynasty, we shall now consider 
 somewhat more in detail. 
 William the We have seen how William the Norman found little 
 SeT^'"'' difficulty, immediately after the Battle of Hastings, in 
 procuring his election by the terrified Witan. After taking 
 the ancient oath of the English kings, constituting a com- 
 pact with the nation to govern with justice and equity, he 
 was duly crowned at Westminster by the Archbishop of 
 Accession York.^ On his death-bed the Conqueror bequeathed to 
 RufusI T087. ^^^ eldest surviving son, Robert, the patrimonial Duchy of 
 Normandy. The Crown of England he would not attempt 
 to bequeath, declaring that he held it not by hereditary 
 right ; he left the succession to the decision of God.^ He 
 expressed, however, his ardent wish that his younger and 
 favourite son William should succeed to the kingship of the 
 English, in much the same way as formerly Edward the 
 Confessor had recommended his brother-in-law Harold.^ 
 Furnished with a recommendatory letter from his father to 
 Archbishop Lanfranc, as the head of the Witenagemot, 
 William Rufus at once hastened to England. Here he 
 was obliged to make a triple promise, — 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 sup- 
 porter, 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.* 
 Henry I. On the death of William Rufus in the New Forest, on 
 
 1 100. ^^ 2nd of August, 1 100, his younger brother Henry, being 
 
 ^ Supra, p. 50. 
 
 2 Neminem Anglici regni constituo haeredem, sed aeterno Conditori Cujus 
 sum et in Cujus manu sunt omnia illud commando : non enim tantum decus 
 hereditario jure possedi. — Ordericus Vital, vii. 15. 
 
 3 Order. Vital, vii. 15, 16. 
 
 ^ Eadmer, Hist. Nov. lib. i. p. 13; A. -Sax. Chron. 192; Lingard, ii. 76. 
 
VI.] to the Crown. 207 
 
 close at hand, and having secured the Royal treasure, was 
 hastily elected King the following day at Winchester.^ 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 ;2 and two days afterwards (Aug. 5) 
 he was crowned at Westminster by Maurice, Bishop of 
 London, and took the ancient coronation oath of the 
 English kings.^ In the Charter of Liberties, which he 
 issued at the same time, he announces to the nation his 
 coronation Dei misericordid et communi consilio baronuni 
 totius regni Angiiae.^ 
 
 The male line of the Conqueror became extinct on the Stephen. 
 death of Henry I. The late King had endeavoured to "^5- 
 secure the Crown to his own offspring, first by inducing 
 the baronage to do homage and fealty to his son William, 
 and, after the untimely death of the Atheling, by exacting, 
 
 ^ 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.' — A. -Sax. Chron. s.a. iioo. 
 
 2 s.a. iicx). 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- 
 
 * The exact words of the' oath, agreeing with the ancient form used at the 
 coronation of King Ethelred H. have been preserved : In Christi nomine 
 promitto haec tria populo Christiaao mihi subdito. In primis me praeceptu- 
 rum et opem pro viribus impensurum ut ecclesia Dei et omnis populus Christi- 
 anus veram pacem nostro arbitrio in omni tempore servet ; aliud ut rapacitates 
 et omnes iniquitates omnibus gradibus interdicam ; tertium ut in omnibus 
 judiciis aequitatem et misericordiam praecipiam, ut mihi et vobis indulgeat 
 Suam misericordiam clemens et misericors Deus, — Maskell, Mon. Rit. iii, 5, 6: 
 Select Chart. 95. [For an interesting historical analysis of the ancient Corona- 
 tion formulae in Celtic and Mediaeval Scotland, cf. Scottish Review. Paisley. 
 Gardner, vols x. and xi. for 1887-8, Arts. Early Scottish Coronations and The 
 Scottish Coronations of Charles I. and Charles II. — Ed.] 
 
 * Thorpe, Ancient Laws and Institutes, 215, 
 
2o8 The Succession [Ch. 
 
 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 consciences more 
 firmly by the triple repetition of the oath would seem to 
 indicate his own distrust. A recommendation to the 
 nation was all he could lawfully give, and it was a moot 
 point whether even this recommendation had not been 
 withdrawn on his death-bed.^ Moreover, a woman was 
 incapable of performing the martial duties which then 
 appertained to Royalty, and the acceptance of the Empress 
 Matilda practically meant subjection 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.^ On the third 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,^ 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.^ To call him a 
 usurper is an abuse of the term. His election, like that of 
 his uncle, Henry L, was, indeed, somewhat irregular, few 
 only of the magnates having been present : ^ but the 
 
 1 Gesta Stephani, p. 7. 
 
 2 Cont. Flor. Wig., App. Volente igitur Gaufrido comite cum uxore sua, 
 quae haeres erat, in regnum succedere, prim ores terrae, juramenti sui male 
 recordantes, regent eum suscipere noluerunt, dicentes 'Alienigena non regnabit 
 super nos : ' initoque consilio, Stephano comiti . . . coronam regni imposue- 
 runt.— Select Chart, no. 
 
 3 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 Edgar Atheling. 
 
 ^ Will. Malmes. Hist. Nov. i. § 11. 
 
 * Coronatus est ergo in regem Angliae Stephanos . . . tribus episcopis 
 
VI.] to the Crown. 209 
 
 paucity of magnates was counterbalanced by the presence 
 and support 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 gratid 
 assensu cleri et populi in regent Anglorum electtis, et a 
 Willelmo Cantuariensi archiepiscopo et sanctae Romanae 
 ecclesiae legato co7isea'atus, et ab Innocentio sanctae 
 Romanae sedis pontifice confirmatus? Henry L, 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? Both kings founded their title on the 
 choice of the people. The confirmation 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. 
 
 At the time of Stephen's death, on the 25th Oct., 11 54, Henry II. 
 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.* He succeeded without 
 opposition, not by hereditary descent, but by virtue of the 
 
 praesentibus, archiepiscopo, Wintoniensi, Salisberiensi, nullis abbatibus, pau- 
 cissimis optimatibus. — 3id. loc. cit. 
 
 • Cumque . . . cum paucissimo comitatu applicuisset, ad ipsam totius 
 regionis reginam metropolim, maturato itinere, Londonias devenit . . . Ma- 
 jores 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 provisu in regno 
 substituendus e vestigio succederet. Gesta Stephani, p. 3. Cf. also Chron. 
 A. -Sax. s. a. 1135 ; and Will. Malmesb. Hist. Nov. i. § 11 [in regem exceptus.] 
 
 ^ Statutes of the Realm — Charters of Liberties, p. 3. 
 
 ' See Anselm's Letters, lib. iii., Ep. 41, 
 
 ^ Ab omnibus electus est. — Rob. de Monte, s. a. 1154. Anno a partu 
 Vii^inis M.C.LIV. Henricus, Henrici majoris ex filia olim imperatrice nepos, 
 post mortem regis Stephani a Normannia in Angliam veniens, hoereditarium 
 regnum suscepit, conclamatus ab omnibus, et consecratus mystica unctione in 
 regem, concrepantibus per Angliam turbis, "vivat rex." — Will. Newb. ii. 
 c. I. [Eng. Hist. Soc, 1856, p. 89.— Ed.] 
 
2IO The Succession [Ch. 
 
 recent compact of Wallingford, ratified by the assent and 
 homage of the baronage.^ The kingship was gradually 
 passing out of the elective stage and becoming more Feudal 
 in character. Obtaining homage from all the feudatories 
 was thought to give a secure title. The election became, as it 
 were, feudalised 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 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 expedient of crowning the son 
 during the lifetime of the father. The young Henry was 
 twice solemnly crowned; on the first occasion in 11 70, 
 alone, and again, two years later, in company with his wife, 
 daughter of Louis 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. 
 Richard I. It was only a few days before his death, on the 6th of 
 " ^' July, 1 189, that Henry 11. had recognised his eldest survi- 
 
 ving son, Richard Coeur-de-lion, as his successor. Richard 
 remained absent from England about five weeks engaged 
 in receiving investiture of the Duchy of Normandy (July 
 20th), and in concluding a treaty with Philip of France. 
 In the meantime his mother, Queen Eleanor, issued a 
 proclamation to the English calling upon all freemen to 
 take the oath of allegiance to her son Richard as * Lord of 
 England.' ^ No opposition of any kind was made by pre- 
 
 ^ Supra^ p. 92. 
 
 ^ Bened. Abbas, ii. 74, 75. Et juret unusquisque liberorum hominum totius 
 regni, quod fidem portabit domino Ricardo domino Anglise, filio domini regis 
 Henrici et dominse Alienor reginae, [. . . . sicut ligio domino suo. — Ed.] 
 
VI. 1 to the Crown, 211 
 
 lates, barons, or people, and on the 3rd of September, three 
 weeks after he had landed in England, Richard took the 
 usual Coronation oaths, and was duly anointed and crowned, 
 with extraordinary splendour and formality, in the presence 
 of the assembled 'archbishops, bishops, earls, barons, 
 clergy, and a great multitude of knights.' ^ In the Annals 
 of Dunstable he is said to have been * elevated to the 
 throne by hereditary right, after a solemn election by the 
 clergy and people,' ^ words which indicate the mixed notion 
 of hereditary right and popular choice which was then 
 beginning to prevail.^ 
 
 Richard I. died without issue on the 8th April, 1 199. John. 
 After an interregnum of a duration of about six weeks, his "^^* 
 younger brother John, to whom the barons, by Richard's 
 death-bed orders, had already sworn fealty,* succeeded to 
 the throne, with *a questionable title perfected by the 
 election of the nation.' ^ Even in private inheritances 
 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.^ In the 
 
 ^ Deinde Ricardus Dux Normanniae venit Lundonias, et congregatis ibi 
 archiepiscopis et episcopis, comitibus et baronibus et copiosa militum multitu- 
 dine, tertio nonas Septembris, die Dominica . . . consecratus et coronatus est 
 in regem Angliae. — Bened. Abbas, ii. 78. 
 
 2 Inde veniens in Angliam, hsereditario jure promovendus in regem, post 
 cleri et populi solemnem electionem, triplici involutus est sacramento . . . 
 Tunc dominus Cantuariensis divina celebravit ; et nocte sequenti plures Judse- 
 orum occisi sunt, et plures rebus spoliati. Ann. Dunstapl. s. a. 1189 (Annales 
 Monastici, iii. p. 24-5). The earlier portion of the Annals of Dunstable down 
 to 1201 appears to be principally derived from the ' Abbreviationes Chroni- 
 corum ' and the ' Imagines Historiarum ' of Ralph de Diceto, the latter an 
 original work of a contemporary. [Hardy, Cat. of Brit. Hist. 1871, iii. 252.] 
 
 2 By the chroniclers Richard is termed ' Earl ' from his father's death till 
 his investiture as Duke of Normandy on July 20th, thenceforward * Duke 
 Richard ' till his coronation on the 3rd of September, 1189, when he became 
 for the first time 'Rex.' His regnal years are reckoned only from this date. 
 The curious mistake of Allen {Royal Prerogative, p. 45), in asserting that there 
 are public acts in Richard's name, dated in the first year of his reign, before 
 his coronation had taken place, although exposed by Nicolas in his Chronology 
 of History, was unfortunately allowed to remain uncorrected in the second 
 edition of Allen's work published, after the author's death, in 1849. 
 
 ■* 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. 
 
 ^ Stubbs, Select Chart., Introductory Sketch, 29. 
 
 ^ Glanvill, 1. vii. c. 3. 
 
 p 2 
 
212 The Succession [Ch. 
 
 succession to the Crown of England the doctrine had never 
 hitherto obtained. Nearly two 'centuries had still to elapse 
 . before this stage in the growth of hereditary right was 
 distinctly marked by the unopposed succession of Richard 
 11. as heir to his grandfather.^ 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 Brittany, 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 adherence 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, accord- 
 ing 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 preference unless founded on their own personal 
 merit.^ The truth of this incident has been doubted by 
 
 ^ * 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 times, as the eldest and most emi- 
 nent 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. 
 
 2 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 unani miter, invocata 
 Sancti Spiritus gratia, electus, et secundum morum suorum eminentiam prae- 
 electus, ad exemplum et similitudinem Saul primi regis inuncti, quern praepo- 
 suit Dominus populo Suo, non regis filium nee de regali stirpe procreatum ; 
 similiter post eum David jessae filium ; hunc quia strcnuum et aptum dignitati 
 regiae, ilium quia sanctum et humilem ; ut sic qui cunctos in regno supereminet 
 strenuitate, omnibus praesit et potestate et regimine. Verum si quis ex stirpe 
 regis defuncti aliis praepollerit, pronius et promptius in electionem ejus est 
 consentiendum. Haec idcirco diximus pro mclyto comite Johanne, qui prae- 
 sens est frater illustrissimi regis nostri Ricardi jam defuncti, qui haercdi caruit 
 ab CO egrediente, qui providus et strenuus et manifeste nobilis, quem nos, 
 invocata Spiritus Sancti gratia, ratione tam meritorum quam sanguinis regii 
 unanimiter elegimus universi. ' [Sel. Chart. 263.] 
 
VI.] to the Crown, 213 
 
 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.^ 
 In the preamble of a charter issued by John shortly after 
 his accession he was careful to unite both his titles : Rex 
 jure haereditariOy et mediante tarn cleri et populi consensu et 
 favore? 
 
 There was every probability that a justly incensed nation Henry III. 
 would have compelled the House of Anjou to yield the 
 throne of England to a new dynasty, when the death of 
 John on the 19th of October, 12 16, 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 on the 28th of October, by the Legate Gualo ; ^ 
 but he owed his kingdom to the energy and statesmanship 
 of the Regent Pembroke, who, by timely concessions, 
 secured, with much difficulty, the adhesion of the majority 
 of the nation.* Arthur of Brittany had left a sister Eleanor, 
 known as the * Damsel of Brittany,' ^ who survived till 
 
 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 to the historian.' 
 — Stubbs, Const. Hist. i. 515. 
 
 2 Rymer, 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, and Ferrers, Wm. Brewer and Savary de Maulac 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 prae- 
 sentes erant, et alios praelatos inferioris ordinis, sed et comites et barones ac 
 milites qui convenerant, Henrico regi fidehtatem jurare. — Ibid. 
 
 ■* Supra, p. 148. 
 
 * [There seems to be a modern tendency, among some Heralds, to treat the 
 
214 T^^ Succession [Ch. 
 
 1 24 1, 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 is 
 ^^^^' dated from his coronation only. The interregnum between 
 
 the death of the old and the coronation of the new King 
 was always made as short as possible, in consequence of the 
 serious inconvenience 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 predecessor, the 
 regal title was never assumed until the process of election 
 and coronation had been gone through.^ Until then they 
 were only entitled ' Dux Normanniae,' or, as Richard I. was 
 styled in the proclamation issued by his mother ^ — and also 
 in a charter granted by him before his coronation, ' Dominus 
 Angliae.' ^ ^^dward I. was the first King who reigned 
 before his coronation.\His father, Henry III., died on the 
 1 6th Nov., 1272, whilst Edward was absent in Palestine. 
 Four days afterwards, when Henry was buried in West- 
 minster Abbey, the Earl of Gloucester, with the prelates 
 and barons, swore allegiance to Edward as King.^ His 
 
 succession to the English Crown as if it were, and had always been, descendible 
 according to the strict rule of primogeniture, and it therefore appears desirable 
 to remind the student of Constitutional History that the description of 
 ' Heiress Presumptive to the English Throne, ' attributed to Eleanor of 
 Brittany, in a recent Paper on ' Heiresses Presumptive, ' by H. Murray 
 Lane, Chester Herald, in Notes and Queries^ 7th s., vii,, 221, is entirely out 
 of harmony with the Legal and Constitutional doctrine of Eleanor's own day, 
 when it was never supposed that she held such a position. — Ed.] 
 
 * Both Glanvill and Bracton were inclined to favour the claim of the nephew 
 as against the uncle in the succession to private inheritances. But so long as 
 Eleanor lived the ' casus regis' seems to have been regarded as an obstacle in 
 the way of a judicial decision for the nephew. In treating of the writ of entry, 
 Bracton, f. 327 b., says expressly, et cum de propinquitale constiterit quamdiu 
 casus regis duraverit nunquam ad judicium proceditur. — Twiss's Bracton, i, xlv. 
 
 2 Nicolas, Chron. of Hist. 272. 
 
 ' Supra^ p. 210. 
 
 ^ Archseologia, xxvii. 109. 
 
 ^ Antequam corpus regis Henrici traditum esset sepulturge, Gilebertus 
 comes Gloverniae . . . propria voluntate ductus, tactis sacrosanctis corporale 
 prsestitit juramentum, quod pacem regni pro viribus suis custodiret, et fideli- 
 tatem domino Edwardo tanquam domino suo per omnia observaret. Similiter 
 archiepiscopus Eboracensis et etiam Herefordiae et Warennae comites 
 
VI.] to the Crown. 215 
 
 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 previous to 
 coronation. But the idea of election, and the necessity for 
 consent to a King's accession were still preserved. During 
 the four days which elapsed between the death of Henry 
 and the recognition of Edward as King, the throne was 
 legally vacant. The new King's reign was dated not from 
 the death of his father, but from the day on which the oath 
 of fealty zvas taken :^ and in the order for the proclamation 
 of the King's peace, issued in his name three days later by 
 the Royal Council, Edward asserts the crown of England 
 to have devolved upon him successione haereditaria ac pro- 
 ceriim regni voltmtate et fidelitate nobis praestita? Shortly 
 afterwards the oath of fealty was renewed in a great assem- 
 bly held at Westminster after the feast of St. Hilary, 1273, 
 and attended not only by all the prelates and other 
 magnates of the kingdom, but by four representatives from 
 each county and each city.^ 
 
 et multi alii qui tunc prsesentes erant ibidem. Ann. Winton. p. 1 12. Mag- 
 nates regni nominarunt Edwardum filium suum in regem. Annal. Dunst. 
 p. 254. Recognoverunt paternique successorem honoris ordinaverunt. Ris- 
 hanger, p. 75. ' Nominare ' and 'ordinare' imply much more than passive 
 acquiescence in the succession of an heir. 
 
 ^ Duffus Hardy, Introduction to Close Rolls ; Nicolas, Chronology of 
 History, p. 291-2 ; Allen, Royal Prerogative (ed. 1849), p. 46. 
 
 2 Rymer, i, 497. ' For the first time,' says Bishop Stubbs (Const. Hist, 
 ii. 103) of Edward I.'s accession, ' the reign of the new King began, both in 
 law and in fact, from the death of his predecessor.' With all deference, how- 
 ever, to so eminent a historian, it is evident that although the hereditary claim 
 of Edward was admitted without opposition, yet in law, and in fact, there was 
 actually no King for the space of four days. Indeed, the Bishop had just before 
 told us ' that his reign began on the day of his father's funeral. ' The fact that 
 the regnal years of Edward were dated only from the day of his recognition as 
 King by the baronage marks the persistence of the elective idea, and the differ- 
 ence still recognised between the Kingship and a private inheritance. It is 
 important not to antedate the steps in the development of the hereditary doctrine. 
 As Edward I. was the first King who reigned before coronation, so Edward II. 
 was the first whose reign is dated from the day following the death of his pre- 
 decessor. The theory embodied in the legal maxim ' the King never dies,* is 
 of still later growth. It may be said to have been practically accepted from 
 the accession of the House of York : yet even Henry VIII. 's reign commenced 
 on the day after the death of his father (Nicolas, Chron. of Hist.). From the 
 accession of Edward VI. there has been no interregnum, however short, except 
 only where the line of succession has been broken. 
 
 ^ Ann. Winton. p. 113. 
 
2l6 
 
 The Succession 
 
 [Ch. 
 
 Edward II. 
 1307- 
 
 Hereditary 
 
 succession 
 established: 
 
 But subject 
 to the para- 
 mount right 
 of Parlia- 
 ment to 
 settle the 
 
 In the proclamation issued on the accession of Edward 
 II. he was declared to be already King of England by 
 descent of heritage (' ja roi d'Engleterre par descente de 
 heritage ' ), the words referring to the consent of the mag- 
 nates of the realm being omitted.^ From henceforth the 
 old civil election dropped out, and hereditary succession 
 became the established rule, subject, however, in cases of 
 necessity, to the paramount power of Parliament, not only 
 to depose an individual Sovereign, but also, for good 
 reason, to set aside the direct line of descent and establish 
 a new Royal stock.^ The ecclesiastical form of election by 
 the clergy and people survived the civil form, and was 
 maintained, in the coronation service, down to the acces- 
 sion of Henry VIII. ; since whose time a mere recog- 
 nition by the people is all that takes place.^ The right 
 of the National Assembly — whether acting as a technically 
 constituted Parliament, or as a Convention of the Estates 
 of the Realm — to regulate and vary the succession to the 
 Crown, has been constantly claimed and exercised when- 
 ever the safety and welfare of the Kingdom have impera- 
 
 ^ Rymer, ii. i. Walsingham {i. 119) says, Successil . . . non tam jure 
 haereditario quam unanimi assensu procerum et magnatum. 
 
 [For a recently printed contribution to the history of Edward II., see 
 Ckronicon Adce de llsk, edited for the Royal Society of Literature, from a MS. 
 in Brit. Mus., by E. M. Thompson, now Principal Librarian, — Ed.] 
 
 2 * Hereditary succession in monarchical states is nothing more than an ex- 
 pedient 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 government ; but in cases of necessity, 
 it was never thought to confer an indefeasible 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). 
 
 ^ The form for the coronation of Henry VIII., drawn up by that King him- 
 self, 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 re- 
 quired 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, enunc- 
 tion and coronacion ? Whereunto the people shall say with a grete vo)xe, 
 Ye, Ye, Ye ; So be it ; Kyng Henry, Kyng Henry. ' — Maskell, Mon. Ritual, 
 iii. 73 ; Freeman, Norm. Conq. iii. 622. 
 
VI.] to the Crown. 217 
 
 tively required it. The depositions by the Witan of Sige- 
 bert in 755, of Ethelred the Unready in 10 17, and of 
 Harthacnut in 1037, have already been referred to in a 
 previous chapter.^ Since the Norman Conquest there had 
 hitherto been no actual case of formal deposition : but we 
 have seen the Barons under King John renouncing their alle- 
 giance and electing Louis, son of the King of France, to be 
 their King;- and the misgovernment of Henry III. caused 
 a change in the succession to be again mooted amongst the 
 baronage. In 1327, however, Edward II. was formally de- Deposition 
 posed by the Parliament which assembled at Westminster on jj j^l;!^ 
 the 7th January, 1327, after a bill of six articles, drawn up by 
 Stratford, Bishop of Winchester, had been exhibited against 
 him. These articles set forth as the reasons for his depo- 
 sition, that he was devoid of the ability to govern, had 
 suffered himself to be led in all things by evil councillors, 
 had neglected the business of the state, lost the Crown of 
 Scotland, broken his coronation oath, ruined his kingdom 
 and people, and that there appeared no'hope of his amend- 
 ment. The Parliament therefore resolved that the Lord 
 Edward, the King's eldest son, should immediately take 
 upon him the government of the kingdom and be crowned 
 King. As an additional precaution, the Queen's advisers 
 determined to procure a formal resignation from Edward 
 II. On the 20th of January a deputation of prelates, 
 earls, barons, abbots, and two judges, waited on the King, 
 then a prisoner in Kenilworth Castle, and, after notifying 
 to him the resolution of Parliament, obtained his consent 
 to the election of his son. Then Sir William Trussell, in 
 the name of the rest, and as procurator for the whole Par- 
 liament, renounced the homage and fealty which the 
 members had severally made to the King, and declared 
 that they should thereafter account him as a private person 
 without any manner of Royal dignity. The ceremony 
 ended by Sir Thomas Blount, the Steward of the House- 
 
 ^ Supra^ p. 35. 2 Supra, p. 148. 
 
2l8 
 
 The Succession 
 
 [Ch. 
 
 Edward III 
 1327- 
 
 House of 
 Lancaster, 
 
 Deposition 
 of Richard 
 II. 1399. 
 
 hold, breaking his staff of office, as a sign that his master 
 had ceased to reign as completely as if he were dead.^ 
 
 In the proclamation of his peace issued on the 24th of 
 January, the twofold title of Edward III., derived from the 
 common counsel and consent of the Estates of the realm 
 and the resignation of his father, are carefully set forth. On 
 the 29th of January he was crowned at Westminster.^ 
 
 The deposition of Richard IL, in 1399, was preceded, as 
 in Edward II.'s case, by a so-called voluntary resignation, 
 and accompanied by Henry of Lancaster's very remark- 
 able claim to the Crown, in which an insinuated priority 
 of descent from Henry III., a right of conquest, and the 
 misgovernment of Richard are artfully combined. But 
 the power of the National Assembly to depose and elect 
 the Sovereign is brought out with peculiar distinctness in 
 the official record entered on the Parliamentary Rolls. 
 The Parliament which deposed him was summoned to 
 meet on the 30th September, by writs issued in Richard's 
 name on the 19th of August, the same day on which he 
 met the Duke of Lancaster at Flint. Richard, while a 
 prisoner in the Tower, executed a formal Deed of Resig- 
 nation on the 29th of September, which was presented to 
 the Parliament assembled on the following day. The 
 resignation of the King was held to have the technically 
 legal effisct of dissolving the Parliament as soon as it had 
 met,^ but the Assembly, as the representative of the Estates 
 of the Realm,* accepted the resignation, deposed the King, 
 and elected his successor. In the record of the proceed- 
 ings, after reciting Richard's resignation of the Crown, the 
 
 ^ T. de la Moor, pp. 600, 601 ; Knyghton, c. 2549 ; and see Lingard, ill. 
 345, and Stubbs, Const. Hist. ii. 362. The Parliament Roll, which was pro- 
 duced in Parliament in the loth year of Richard II. {infra^ p. 305) is not now 
 extant. 
 
 - Rymer, ii. 683, 684. 
 
 '^ Fresh writs were consequently issued on the 30th Sept. summoning the 
 same assembly to meet as a Parliament six days later. Lords' Report on 
 Dignity of a Peer, iv. 768. 
 
 "* Pares et proceres regni Angliae spirituales et temporales et ejus regni 
 communitates, omnes Status ejusdem regni repraesentantes. Walsingham, ii. 
 234- 
 
VI . to the Crown, 219 
 
 crimes of which he had been guilty, and his general 
 unfitness to be King, the formula of deposition runs : 
 Propter praemissay et eorunt praetextu, ab omni dignitatem 
 et honore regiis, si quid dignitatis et honoris hujusmodi in eo 
 remanserit, inerito deponendum pronunciamus, decernintus, 
 et declaramuSy et etiam simili cautela deponimus. The 
 throne is then declared vacant : tit constabat de praemissis, 
 et eorwn occasione, regnum Angliae, cum pertinentiis suis 
 vacare. Finally the crown is granted to Henry : conces- 
 serunt iinanimiter ut Dux praefatus super eos regnaret} 
 The election of Henry IV. was of course determined by Election 01 
 special circumstances, yet in one aspect it was but a Henry IV 
 recurrence to the ancient practice of choosing the worthiest 
 member of the Royal house to fill the throne, to the 
 exclusion of the nearest lineal heir, who was a minor. 
 The accession of Richard H. (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 H., 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: while 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 distin- 
 guished in both arms and council. Under Henry IV. the The Crown 
 right of succession to the Crown was settled, altered, and Henry iv" 
 re-settled no less than four times. In his first Parliament ^"^ his 
 — the same whiph had deposed Richard II. on the 30th of 
 September and re-assembled under the new King's writs 
 on the 6th of October, 1399 — the Lord Henry, Prince of 1399. 
 Wales, with the assent of the Lords Spiritual and Temporal 
 and all the Commons, was ' created and ordained Heir 
 Apparent, to have and enjoy the Realm in time to come 
 when God it should will.' ^ Four years afterwards, by an 1404. 
 
 1 Walsingham, ii. 234-238 ; Rot. Pari. iii. 416, et seq. 
 
 ^ Item, come en cest present Parlement par notre Seigneur le Roy et 
 
220 
 
 The Succession 
 
 ICh. 
 
 [Settling 
 Acts,] 
 
 June, 1406. 
 
 Decembei 
 1406. 
 
 Act (5 Hen. IV.) passed in the Parliament which met at 
 Westminster on the 14th of January, 1404, the succession 
 was entailed upon the Prince of Wales and the heirs of his 
 body, and in default upon his brothers, the other sons of 
 the King, and their issue in order of seniority.^ In addition 
 to his four sons, Henry, Thomas, John, and Humphrey, 
 Henry IV. had two daughters who appear to have been 
 intentionally ignored in this settlement : the daughters of 
 his sons were, however, capable of inheriting under the 
 entail. Two years later it seems to have been thought 
 desirable to exclude these also, probably with a view to 
 negativing the right of succession through females which 
 was the basis of title of the young Earl of March. Accord- 
 ingly, on the 7th of June, 1406, an Act was passed reset- 
 tling the Crowns of England and France on the King and 
 the heirs male of his body ; - but this restriction being 
 quickly perceived to involve certain inconvenient conse- 
 quences, the last Act was repealed ^ on the 22nd Decem- 
 ber, in the same year, and the Crown was finally settled 
 
 assent des Seigneurs Espirituelx et Temporelx et toutz les Communes, nostre 
 Seigneur Seigneur Henry Prince du Gales estoit creez et ordeignez Heir ap- 
 parant, a avoir et enjoir le Roialme en temps advenir quant Dieu le voille : 
 Queles assent et ordinance plese a notre Seigneur le Roy faire entrer de 
 record en les Rolles du ceste present Parlenient. Responsio : Le Roy le voet. 
 Rot. Pari. iii. 434 {s. a. 1 399, i Hen. IV,). 
 
 ^ A mon tres honore Seigneur le Prince son eisne Fitz, come Heir Apparant 
 et enheritable a la Corone d'Engleterre, et a les Heires de son corps 
 issantz ; et pur defaute d'issue de son corps ; a mes tres honores Seigneurs 
 ses Freres, et lour issue successivement et enheritablement solonc la Ley 
 d'Engleterre. Rot. Pari. iii. 525, 575 ; perforce d'icel Act fait I'an de vre 
 regne quint ; iii. 581. 
 
 The distinction between the generic term 'heirs,' denoting all heirs, col- 
 lateral as well as lineal, and the specific term 'heirs of the body,' which is 
 restricted to lineal heirs alone, is sometimes overlooked by non-legal historians. 
 Even Lingard (Hist. iv. 317) and Stubbs (Const. Hist. iii. 45) are not free 
 from this inaccuracy ; and in the case of the latter, who tells us that the succes- 
 sion was settled ' on the Prince of Wales and his heirs^ and in default, on the 
 other sons of the King in order,' this inaccuracy leads to a legal absurdity. 
 
 2 Rot. Pari. iii. 575-6. Septimo die Junii, anno regni nostri septimo. 
 
 •* In the repealing statute (7 & 8 Hen. IV.) the reason for the change as 
 alleged in the recited petition of the Lords and Commons is : Et vueillantz 
 les ditz Seigneurs et Commune pluis tost faire et procurer chose qe purra 
 tourner en honour et encres de Vous, tres soverein Seigneur, et du dit 
 Monsr le Prince, et des ditz Messrs ses Freres, vos tres honorables Filz, qe 
 de la Succession de mesmes voz Filz de droit de la Corone ascun restriction 
 demaunder. Rot. Pari. iii. 581. 
 
VI.] to the Crown. 221 
 
 upon King Henry and the heirs of his body, thus ad- 
 mitting into the Hne of succession not only his sons and 
 their issue, female as well as male, but also his daughters 
 and their descendants.^ 
 
 The House of Lancaster reigned for more than sixty 
 years by a good Parliamentary title. The House of York, House of 
 by whom the doctrine of indefeasible hereditary right was 
 first, promulgated, in order to justify their claims to the 
 throne,^ owed their success far less to that doctrine than to 
 their intense personal popularity, their descent in the male 
 line from Edward HI., 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, ecclesiastical, social, and 
 political. The House of York placed itself at the head of 
 the popular party in resisting the ecclesiastical and aristo- 
 cratic 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 have afforded it. The right of Parliament to 
 decide the question of succession was tacitly admitted by 
 
 1 7 Hen. IV, c. 2, in Statutes Revised, i. 278. Its proper dale is 8 Hen. IV., 
 as given in Rymer, viii. 462, and in the exemplification in Rot. Pari. iii. 581. 
 The enacting words as therein set out run : De consilio, concensu expresso 
 et spontaneo, ac instanti Petitione, omnium et singulorum Prelatorum et 
 Procerum, ac Cominunitatis et universitatis Regni nostri in presenti Parlia- 
 mento nostro, Volumus, ordinamus, et statuimus, quod Hereditas sive Here- 
 ditacio, Corone nostre, ac Regnorum nostrorum Anglie et Francie, ac omnium 
 aliorum Dominiorum nostrorum ultra mare, cum omnibus eorum pertinentiis, 
 Nobis, et Heredibus de corpore nostro exeuntibus resideat. Ac ulterius in 
 speciali, ad requisicionem et de assensu predicto, ordinamus, pronunciamus, 
 decernimus, et declaramus, prefatum Principem Henricum filium nostrum primo- 
 genitum Heredem nostrum apparentem, Nobis in Corona, Regnis, et Dominiis 
 predictis successurum. Habend' cum omnibus pertinentiis suis post decessum 
 nostrum sibi et Heredibus de corpore suo exeuntibus : Ita quod si ipse sine 
 herede de corpore suo exeunte obierit, tunc predicta Corona, Regna, et Do- 
 minia, cum omnibus pertinentiis suis, Thome secundo filio nostro et He- 
 redibus de corpore suo exeuntibus remaneant. Et si ipse, &c. Similar 
 remainders to John, the 3rd son, and Humphrey, the 4th son, and the heirs of 
 their bodies. 
 
 ^ * The crown having been entailed by Act of Parliameut {7 Hen. 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 
 partisans of that house resorted.' — Sir Michael Foster, Crown Law, p. 403. 
 
Edward IV. 
 
 222 The Succession [Ch. 
 
 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 
 Deposition place of Henry's son.^ From the day of the battle of 
 Vi"an7 Wakefield (23 Dec, 1460), when Richard of York was 
 election of slain. King Henry was regarded by the adherents of the 
 White Rose as having forfeited the Crown through his 
 breach of the Parliamentary compromise. He was deposed 
 by an assembly of Yorkist prelates and barons at London, 
 on the 3rd of March, 1461 ; and Edward, son of the late 
 Duke of York, was elected King, as well by the select 
 assembly as by a popular vote of soldiers and citizens 
 assembled in St John's fields, Clerkenwell. On the 4th 
 he went in procession to Westminster and was proclaimed 
 King as Edward IV.^ The Crown was in reality seized 
 
 ^ Rot. Pari. V. 375. Among the objections drawn up and formally pro- 
 pounded by the Lords in answer to the Duke of York's claim, was the assertion 
 that the statutes settling the crown on the House of Lancaster were of so high 
 authority ' as to defeat any manner of title made to any person.' — Ibid. p. 376. 
 
 - * By the advice of the Lords Spiritual and Temporal, and by the election 
 of the Commons.' Gregory, Chron. p. 215. Hall, (Chron. p. 253) says : 
 ' After the lordes had considered and weyghed his [Edward's] title and declar- 
 acion, they determined by authoritie of the sayd counsaill, for as much as 
 Kyng Henry, contrary to his othe, honor and agreement, had violated and in- 
 fringed, 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 therfore by the aforesayd 
 authoritie, depriued 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 P^awconbridge, which toke the musters, wisely declared to the mul- 
 titude, 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 lenger over them : to whome they 
 with a whole voyce aunswered, nay, nay. Then he asked them, if they would 
 serue, loue, 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 attending a Te 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 Plenry. Whereupon it was agayne demaunded of the commons, if 
 
VI.] to the Crown, 223 
 
 by Edward flagrante bello^ and it was not until after his 
 victory at Towton on the 29th of March, which put an 
 end to all competition, that he can be said to have obtained 
 actual possession of the sovereignty. His first Parliament, 
 however (whose meeting was delayed by the troubled state 
 of the Kingdom till the 4th November), adopting the 
 Yorkist theory of indefeasible hereditary right, found no 
 difficulty in fixing the commencement of his reign at the 
 4th of March, and in declaring the sovereigns of the House 
 of Lancaster to have been usurpers and ' pretensed Kings.' ^ 
 
 During the brief Lancastrian restoration (October, 1470 
 — April, 1 471) the Crown was re-settled by Parliament 
 on Henry VI. and his issue male, with remainder, in 
 default of such issue, to George, Duke of Clarence, brother 
 of Edward IV., and his heirs.^ 
 
 Whatever may be thought of the claim of Richard 1 11.,^ Richard III. 
 it appears certain that his accession was in accordance with ^^ 
 the wishes of the main body of the nation, and, like 
 
 they woulde admitte, and take the sayd erle as their prince and souereigne lord, 
 which al with one voice cried, yea, yea.' Hall's Chronicle was published in 
 1548. 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 of Richard, Duke of York. 
 
 1 I Edw. IV. c. I. 
 
 2 ' That if the said Herry, and Edward his first begoton son, died without 
 Issue Male of theire Body, that the said Duke and his Heires, should be Kynge 
 of this Lande.' Rot. Pari. vi. 194. This Act is known only by the reference 
 to it in the statute (17 Edw. IV., 1468), by which it was repealed. The 
 petition of the Commons on which the repealing statute is founded is curious, 
 and well brings out the Yorkist theory : ' That where in your moost dolorous 
 absence oute of this your Reame, in the parties of Holond beyng, and afore 
 your moost victorious regresse into this same your Reame, in a pretensed Parle- 
 ment, unlawfully and by usurped auctoritie summoned and called by your Rebell 
 and Ennemye Henry the Vlth, late in dede and not in right Kyng of Englond, 
 holden here at your Paloys of Westm', the xxvi day of Novembr', the ixth yere 
 of your moost noble reigne, under the colored title of the said Henry from the 
 begynnyng of this pretensed reigne xlixti, and of the readeption of his usurped 
 power and estate the first, dyvers and many maters were treated, commoned 
 and opened, to the anyntifying and disheritaunce of You, Soveraigne Lord, and 
 of your Roiall bloode,' &c. [Rot. Pari, vi, 191.— Ed.] 
 
 ^ Richard III. founded his claim on (i) an alleged pre-contract of marriage 
 of Edward IV. , which rendered his issue by ' dame Elizabeth Gray' illegitimate ; 
 (2) the attainder of the Duke of Clarence, by which his children were de- 
 barred from the succession; and (3) the misgovernment of Edward IV. — ^Rot. 
 Pari. vi. 240, 241. 
 
2 24 "^^^ Succession [Ch. 
 
 Edward IV., he was acknowledged by a show of popular 
 election.^ The ' many and divers" lords spiritual and tem- 
 poral and other nobles and notable persons of the com- 
 mons, in great multitude/ who, on the 25th of June, 1483, 
 presented a roll of parchment to Richard inviting him to 
 accept the Crown, professed to act * on the behalf and in the 
 name of the Three Estates of this realm of England,' and 
 declared that they had ' chosen him into their King and 
 Soveraigne Lord, to whom they knew for certain it apper- 
 tained of Inheritance so to be chosen.' ^ 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, after reciting 
 that neither the said Three Estates, nor the persons acting 
 in their name had been * assembled in form of Parliament,' 
 and ' how that the Court of Parliament is of such authority 
 and the people of this land of such nature and disposition, 
 as experience teacheth that manifestation and declaration 
 of any truth or right made by the Three Estates of this 
 Realm assembled in Parliament, and by authority of the 
 same, maketh before all other things most faith and cer- 
 tainty,' proceeded to declare Richard 'very and undoubted, 
 King of this realm of England, as well by right of consan- 
 guinity and inheritance as by lawful election, consecration, 
 entailed by and coronation ; ' and entailed the Crown on the heirs of 
 Parliament j^j body, particularly his son Edward, Prince of Wales, who 
 
 on the issue j y ir j ' » 
 
 of Rich. III. was thereby declared heir apparent.^ 
 
 Henry VII. Henry Tudor, who in default of a legitimate heir of the 
 
 '^^5- house of Lancaster, was recognised, without any legal 
 
 hereditary claim, as the head of the Lancastrian party, 
 obtained the Crown partly by the victory at Bosworth (22 
 August, 1485), but mainly by the general acquiescence of 
 
 The Crown the nation. His best and only legal title was the Act of 
 
 is entailed by 
 
 ^ Hall, Chron. 372. 
 
 2 Rot, Pari. vi. 240, 241. 
 
 ' Rot. Pari. vi. 240-242. 
 
VM to the Crown, 225 
 
 Parliament by which it was * ordained and enacted by the Parliament 
 assent of the Lords and at the request of the Commons his is^e^" 
 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 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.' ^ Henry VII. was, in fact, made 
 by Parliament the stock of a new dynasty,^ 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 Crown Parliamen- 
 was repeatedly altered by legislative enactment. rnents^of the 
 
 (i) By the Royal Succession Act of 25 Henry VIII., succession in 
 c. 22, passed on the occasion of the King's marriage with Henry Vlir. 
 Anne Boleyn, the Crown was entailed on the King's issue 25 Henry 
 male, ' and for Default of such sons of your Body begotten, * ^' ^^' 
 . . . that then the said 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 
 another, 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 Females to the same.' 
 
 (2) Subsequently to the King's marriage with Lady Jane 28 Henry 
 Seymour, Parliament, in the plenitude of its sovereign 
 authority, passed an Act ^ by which (after declaring the 
 
 1 I Hen. Vn. c. i. 
 
 2 Const. Hist. i. 8. 
 
 ^ The words of the Act settling the Crown upon Henry VH, have been sub- 
 stantially carried out, every subsequent sovereign of England having been a 
 descendant — although not, since the Revolution, ' heir ' — of his body. 
 
 " 28 Hen. VIII. c. 7. [Not in Ruffhead, Statutes at Large.— Ed. 
 c.H. Q 
 
2 26 The Succession [Ch.- 
 
 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 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 in like manner, 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,' ^ the Act proceeds to bestow upon 
 The King the King the extraordinary power, in default of lawful issue 
 by Parlia- o^ ^^^ body, to limit the Crown, by letters patent, or by his 
 ment to j^st will made in writinj? and sig^ned with his hand, to such 
 
 limit the sue- . ^ . ^ . , , ' , 
 
 cession by person or persons m possession or remamder, and after such 
 ^^"b'^T'^^^"^ order or condition, as he should judge expedient. Not even 
 last will. 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 suffi- 
 cient terms, by full and immediate authority of the High 
 Court of Parliament.' ^ 
 
 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 parliamentary 
 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 wStuart 
 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 pre- 
 judice operated in both kingdoms as strongly as ever.' — Sir M. Foster, Crown 
 I^aw, 406. 
 
 ' These alternatives, * as if they had been lawful heirs,' or * as if the crown 
 had been given by Parliament, ' indicate the two principles upon which the 
 succession has rested since the Crown ceased to be purely elective. Sir Michael 
 Foster (Cr. Law, 408) enunciates them thus : ' That, no Act of the Legis- 
 lature intervening, the crown and royal dignity ought to descend from ancestor 
 
VI.] to the Crown, 227 
 
 (3) By a later Act,^ after reciting the previous statute, 35 Henry 
 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 conditions as 
 the King should, by letters patent or his last 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 supposition 
 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.^ 
 
 In exercise of the power given to him by these Acts Hemy viil. 
 of Parliament,^ Henry VIIL devised the Crown, in re- ^rown. ^^"^ 
 mainder, 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.* 
 
 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 Mary Act passed 
 an Act was passed (i Mary, sess. 2, c. i.) repealing, as far ''^^^H'^'^^^' 
 
 Queen Mary 
 
 to heir in a certain established course of descent ; but that this course of 
 descent is subject to the controul of the legislature.' When the deposition of 
 a reigning sovereign is necessary— as in James II. 's case — the 'Legislature' 
 must be taken as synonymous with the ' Estates of the Realm. ' 
 ^ 35 Hen. VIIL c. i, strongly enforced by i Edw. VI. c. 12. 
 
 2 The legitimacy of each of the daughters of Henry VIIL 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. 
 
 3 ' 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, 
 
 ^ On the validity of the execution of Henry VIII.'s will, see Hallam, Const. 
 Hist. i. 34, 289, 294, Lingard, Hist. Eng. vi. 213 [and Bailey, Succession to 
 Eng. Crown, 156-64]. 
 
 Q 2 
 
228 
 
 The Succession 
 
 CCh. 
 
 Queen 
 
 Elizabeth's 
 
 title. 
 
 Act passed 
 on her 
 accession. 
 
 It is made 
 treason by a 
 statute of 
 Elizabeth, 
 to deny the 
 power of 
 Queen and 
 Parliament 
 to limit the 
 succession. 
 
 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 first notice of Mary's death, Elizabeth was pro- 
 claimed, by order of the House of Lords then sitting, true 
 and lawful heir to the crown according to the act of succession 
 of the i^th year of Henry VIII} 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 per- 
 fectly true, since each reigned by a good Parliamentary 
 title), declared in guarded and limited terms that she was 
 as fully entitled as her sister was at any time sijice the 
 statute of tJu ^^th year of King Henry VIII? 
 
 So completely established, in the time of Elizabeth, was 
 the power of Parliament to alter the line of succession, that 
 it was expressly enacted by statute that if any person 
 should affirm or maintain that the Laws and Statutes did 
 not bind the Right of the Crown and the Descent, Limita- 
 tion, Inheritance, and Governance thereof, his offence 
 should be High Treason. To affirm, by any Book or Work 
 written or printed (before the same should be established 
 by Parliament), that any one particular Person was or ought 
 to be Heir and Successor to the Queen, involved imprison- 
 ment, and for the second offence, a Prcemunire? 
 
 * Sir M. Foster, Crown Law, 409, 
 
 "-' I Eliz. c. 3. ' I'his declaration so guarded and limited scemeth 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. I. The penalty for every person so affirming or maintaining 
 after the decease of the Queen^ was forfeiture of goods and chattels only. This 
 
yj.) to the Crown. 229. 
 
 On the death of Elizabeth, the Council of the late Queen James I 
 
 1603. 
 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 authorising him to 
 
 dispose of the Crown, was legally indisputable,^ the first 
 
 King of the House of Stuart was in the eye of the law a 
 
 usurper. But the proclamation of the Council, which in 
 
 itself could give no right, was voluntarily ratified by the 
 
 popular voice ; ^ and after the ceremony of his coronation 
 
 had been performed, an Act of his first Parliament ^ made 
 
 Jiim7 what he_fiacLjiot._upL.to that time been, a legitimate 
 
 sovereign. 
 
 James I. was the twenty- third occupant of the English Doctrine of 
 
 throne since the death of William the Conqueror. Of that h^eiedkaly ^ 
 
 "ght. 
 
 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 be so established and affirmed by Act of Par- 
 liament that any person in particular except the issue of her Majesty, was 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 pr£emunire. Neither the claims of the House of Suffolk 
 nor of the House of Stuart 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 ordi- 
 nary discussion and proper only for the discussion of the legislature. ' 
 
 * [This strong expression is left as it was written. But Mr. Alfred Bailey's 
 more guarded language, in his interesting work on The Succession to the 
 English Crowjt (1879), should be read alongside, where he says {op. cit., 
 pp. 163-4) of the alleged Will, 'It is sufficient to treat the instrument as it 
 appeared to our forefathers in connection with the succession to the throne. 
 Its authenticity, or at least its validity, was questioned. If genuine, it shifted 
 the succession from the descendants of the elder of Mary's sisters to those of 
 the younger. Thus it hung like a cloud over the prospect of the succession 
 to the crown during the whole of Elizabeth's reign, and even after the accession 
 of the Stuart line, when it had been treated as a piece of waste paper, it 
 affected powerfully and fatally the policy of the new dynasty. ' How it so 
 affected the policy of the Stuart kings is shewn by Hallam, Const. Hist. i. 
 294.— Ed.) 
 
 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 elec- 
 tion, 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. [289]. 
 
 3 I Jac. I. c. I. 
 
230 The Succession [Ch. 
 
 number, twelve had succeeded to the throne not being legal 
 heirs of the Conqueror, according to the doctrine of primo- 
 genitary succession, and three more, although legal primo- 
 genitary heirs, had not succeeded in the regular course of 
 descent.^ Edward II. and Richard II. had been solemnly 
 deposed by Parliament, and on the latter occasion the 
 throne itself was declared to be vacant.^ The line of suc- 
 cession 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 Stuart period 
 laboured to establish the doctrine of an indefeasible here- 
 ditary right to the Crown.^ But even the ultra-royalist and 
 reactionary House of Commons under Charles II. attempted 
 
 ^ 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 primo- 
 genitary 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 illegitimate by Act of 
 Parliament, and since in any case one of them must have been so, the here- 
 ditary 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 post- 
 poned to a mere Parliamentary title. 
 
 -^ Ut constabat de praemissis, et eorum occasione, regnum Angliae, cum 
 pertinentiis suis, vacare. — Walsingham, ii. 237. 
 
 ^ [It is somewhat remarkable that since the publication both of Mr. Bailey's 
 valuable work on The Succession^ and the lasc edition of the present book, a 
 certain activity of assertion of the doctrine of Hereditary right, and a treatment 
 of Mediaeval English History in accordance therewith, and out of accord with 
 the Constitutional doctrine laid down by Prof. Taswell-Langmead and Mr. 
 Bailey, should be manifesting itself. The circumstance that one who has 
 recently penned statements re-asserting the thesis of the Stuart ' lawyers and 
 divines ' is a member of the College of Arms lends an apparent importance to 
 the language of Chester Herald, which seems to render it necessary for the 
 present Editor to state that he is at one alike with his old friend the author of 
 this book and with Mr. Bailey, in their general view of the true Constitutional 
 doctrine, which combined the Elective and the Hereditary principles by 
 treating the Succession as open, within the limits, in ordinary cases, of a given 
 Royal House. But that in extraordinary cases, the power of Election was 
 unlimited, is evident from the cases of the Danish Kings, and of Harold, as 
 well as of William the Conqueror, who clearly went through the form of an 
 election, however little weight he may have personally attached to it. Nor 
 did the creation of a new Royal stock at the Norman Conquest work any 
 change in the old English doctrine, which William's own action had publicly 
 and solemnly recognised at his Coronation. It was possible for King and 
 magnates to agree as to the King's successor, as was arranged at the Peace of 
 Wallingford in the case of Stephen and Henry Fitz Empress. But there was no 
 room, Constitutionally speaking, for such a person as an Heir Presumptive 
 to the Crown in the days of John, as is asserted of Eleanor of Brittany by 
 H. Murray Lane, Chester Herald, in Notes and Queries^ 7th s. vii. 221. — Ed.] 
 
VI.] to the Crown. 23 1 
 
 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 Revolution 
 doubts as to the power of Parliament to regulate the sue- °^ ^ ' 
 cession as it should think fit, were finally set at rest by the 
 ' glorious revolution ' which overturned the Stuart dynasty, 
 and once more set an elective king upon the throne. 
 Both houses of the Convention Parliament concurred in a 
 resolution 'That King James II. having endeavoured to sub- 
 vertthe constitution of the kingdom, by breaking the original Deposition 
 contract between king and people,^ and having by the advice <^f J^"^^^ II 
 of Jesuits and other wicked persons, violated the funda- 
 mental laws, and withdrawn himself out of the kingdom, 
 has abdicated the government, and that the throne is thereby 
 vacant.' ^ In the Declaration of Rights, the final resolution 
 to which both Houses came on the 1 3th of February, it was 
 determined ' That William and Mary, Prince and Princess Election of 
 of Orange, be, and be declared, King and Queen of England, William of 
 France, and Ireland, and the dominions thereunto belong- 
 ing, 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 Prin- 
 cess 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.' ^ 
 
 1 The ' original contract ' between King and People which is here solemnly 
 asserted, is as utterly devoid of historic foundation as the opposite 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- 
 
 2 Commons' Journals ; Pari. Hist. 
 
 ' This declaration was afterwards embodied and confirmed in the Bill of 
 Rights (i Will, and Mary, sess. 2, c. 2) with the further important restriction 
 
232 The Succession [Ch. 
 
 s ul^m nt Queen Mary died in 1694 without issue, and William, in 
 accordance with the Act for settling the succession to the 
 Crown, became sole ruler. On the death, in 1700, of the young 
 Duke of Gloucester, son of the Princess Anne of Denmark, 
 the manifest probability that the entail established would 
 come to an end at the decease of the King and the Princess 
 Anne, rendered it again necessary that Parliament should 
 exercise its power of settling the succession. Its freedom 
 of choice was unlimited. The Resolution of the Conven- 
 tion Parliament which declared the throne of James II. to 
 be * vacant,' abrogated by implication the hereditary right 
 to the succession previously existing in the descendants of 
 Henry VII. But the wisdom was obvious of deviating no 
 further than the welfare of the nation absolutely demanded 
 from the old hereditary line. Passing over therefore 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 pro- 
 fessed the Protestant faith, as the root of a new Royal line. 
 By the Act of Settlement,^ 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 
 
 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, {Infra, ch. xv.) Hallam (Const. Hist. iii. [98]) thus sums up the changes 
 effected by the Convention Parliament : It ' pronounced, under the slight dis- 
 guise of a word unusual in the language of English law, that the actual sove- 
 reign had forfeited his right to the nation's allegiance. It swept aNvay by the 
 same vote the reversion of his posterity and of those who could claim the in- 
 heritance of the crown. It declared that, during an interval of nearly two 
 inonths, 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 participa- 
 tion 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. ' 
 ^ 12 & 13 Will. III. c. 2, in/ray ch. xvi. 
 
VI.] to the Crown. '^'^'^ 
 
 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 Pro- 
 testants.' ^ 
 
 Taking a brief retrospect of the ground travelled over in Recapituia- 
 this chapter, and summing up the results of the detailed in- 
 vestigation in which we have been engaged, the facts as to the 
 succession to the Crown may be broadly stated as follows : — 
 
 In its origin the Kingship of the English was distinctly 
 elective, but with a restriction of choice, in all ordinary 
 cases, to the members of one Royal house. At the Norman 
 Conquest a new Royal stock was substituted for the ancient 
 line of Cerdic, but the elective character of the Kingship 
 continued unaltered. In form the election was, indeed, 
 presently modified by the prevailing Feudalism, and the 
 vote of the Witenagemot was then represented by the prof- 
 fered homage and fealty of the magnates of the Realm. 
 But in addition to election, the ecclesiastical ceremony of 
 coronation was throughout essential to the acquisition of 
 the regal status, and in the coronation service the form of 
 election was again gone through, nominally, this time, by 
 the whole people. The accession of Edward I. marks 
 the earliest important innovation. He was the first King 
 who reigned before his coronation. The doctrine of here- 
 ditary right, which gradually arose as the personal idea of 
 Kingship was superseded by the territorial idea, had now 
 largely obscured the elective character of the Kingship, and 
 its true nature as an office or trust as distinguished from 
 a mere descendible property. But this obscuration was 
 never total. The hereditary right of the heir was not a 
 right to succeed as to an estate, but a right to be elected" 
 Kin^." Its nature was well expressed by the representatives 
 of the Three Estates when they declared to Richard III. in 
 1483 that they had ' chosen him into their King to whom 
 
 ^ A provision settling the reversion to the crown on the Electress Sophia 
 had been inserted, by the House of Lords, in the Bill of Rights, but the Com- 
 mons rejected it without a division. Pari. Hist. v. 339 
 
234 The Succsesion [Ch. 
 
 they knew it appertained of inheritance so to be chosen.' 
 The difference, though apparently a slight one in its 
 practical effect, in reality is of considerable importance 
 as marking the persistence of the elective and fiduciary 
 character of the Kingship. 
 
 Edward I. had been recognised as King four days after 
 the death of his father. The accession of Edward II. on 
 the day following his father's decease marks a further 
 advance in the hereditary doctrine : an advance, however, 
 which was more than neutralised by the revival, against his 
 person, of the right of the National Assembly to depose the 
 King. By the unopposed succession of Richard II. to the 
 exclusion of his uncles, the right of representative primo- 
 geniture was for the first time asserted in the devolution of 
 the Crown. But as in the case of Edward II., so in the 
 case of Richard, no sooner had the doctrine of strict here- 
 ditary descent progressed another step, than it was met by 
 the reassertion of the right of Parliament to depose the 
 sovereign, and by the negation of any indefeasible right of 
 primogeniture, through the election of Henry of Lancaster. 
 
 It was by the House of York, who were themselves the 
 real * usurpers ' of the throne, that the doctrine of indefea- 
 sible hereditary right was first propounded in its full force 
 and significance. The Crown seems to have been by them 
 actually regarded as a private estate for their own personal 
 benefit. Yet even Edward IV. sought and obtained a 
 Parliamentary confirmation of his title : and when, a quarter 
 of a century later, the Crown was settled by Parliament 
 on Henry VII. and his issue, to the exclusion of the whole 
 House of York, the Kingship was replaced on its elective 
 basis. 
 
 The elective right of Parliament, however, was now 
 exercised not periodically on the death of each sovereign — 
 hereditary succession having been the normal rule from 
 the accession of Edward II. at the latest — but whenever it 
 became necessary to elect a new Royal stock, as in the 
 case of Henry IV. and of Henry VII. By the marriage of 
 Henry VII. with Elizabeth of York, what may be termed 
 
VI.] to the Crown. 235 
 
 the ^ legitimate ' claims of that house were transmitted to all 
 her descendants ; yet the right of Parliament to alter the 
 succession was never more signally asserted than in the Act 
 which conferred upon King Henry VIII. unlimited power 
 to nominate his successor. James I., coming to the throne 
 without a legal title, attempted to revive the Yorkist theory 
 of hereditary right. In the recitals of the Act of Parlia- 
 ment by which the Crown was settled upon him, care was 
 taken to carry back his pedigree to Elizabeth, daughter 
 of Edward IV. and to omit all mention of the entail upon 
 Henry VII. and his issue. But the theory of indefeasible 
 hereditary right, fortified as it was~by the Stuart addition 
 of a sanction jure divino, utterly failed to take permanent 
 root : and was finally extirpated by the Revolution of 1688 
 and the subsequent Act of Settlement, which entailed the 
 Crown on the descendants of Sophia of Hanover. In that 
 statute. Parliament, for the last time in our history, exer- 
 cised its paramount right to settle the succession to the 
 Crown ; a right founded not only in reason, but in the 
 ancient principles of our Constitution, and supported by 
 long usage and a uniformity of theory and practice for 
 centuries prior to the Revolution.^ 
 
 ^ On the subject of this chapter, reference may be made to an interesting 
 monograph on ' The Succession to the English Crown ' (1879), from the pen of 
 Mr. Alfred Bailey, M.A., of Lincoln's Inn, a former Stowell Civil Law Fellow 
 of University College, Oxford, whose views coincide in the main with those 
 expressed in the text. [Besides the careful analysis to which the whole 
 question has been subjected by Mr. Bailey, his book contains a number of 
 useful genealogical tables, not to be met with in the ordinary historical text- 
 books. It should not be forgotten, when the absence of a " legal " title to 
 the Crown is insisted upon, as above, in the case of James I., that the Act 
 conferring upon Henry VIII. the special testamentary powers which it is 
 alleged that he exercised, may itself have been, as some have held it, ultra 
 vires. On the Electress Sophia, cf. Edinb. Rev.^ Jan. 1890, Art. A Hano- 
 verian Marriage, for a suggestion, made in Beaucaire's Eleonore d'' Olbreuze, 
 Duchesse de Zell (Paris, 1884), that the Duchess of Zell had some hand in 
 inducing William III. to recommend the settlement of the crown of England 
 on the Electress Sophia and her descendants. William III. visited Zell ' as 
 an old friend,' in 1688. The letter from Leibnitz, quoted loc. cit., certainly 
 states the negotiations of the Duchess as a fact. — Ed.] 
 
236 
 
 CHAPTER VII. 
 
 ORIGIN OF PARLIAMENT. 
 
 A Commune ENGLAND has never been without a National Assembly, 
 Regnihos, 3- ^ Commune Concilium Regni' by whose * counsel and 
 always consent ' the work of government has been carried on. 
 
 existed. -r» , ., . 
 
 But, whilst retammg its corporate identity, the name, 
 powers, and constitution of this assembly have varied from 
 
 Witena- time to time. The nature and functions of the old English 
 
 "* ' Witenagemot have been already sufficiently described.^ 
 
 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 legislative functions of the assembly must 
 
 Curia Regis, have been formal, rather than real. As the Feudal principle 
 gradually acquired predominating influence in every de- 
 partment of the state, the Meeting of the Wise almost 
 
 Its constitu- insensibly changed into the Curia Regis^ the court of the 
 King's feudal vassals. All immediate tenants of the Crown 
 by military service, however small might be their holdings, 
 had originally a personal right to be summoned to the 
 Common 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- 
 tinued to be summoned without any intermission, though 
 their ancient character of Witan appears to have become 
 
 1 Supra, pp. 33-38. 
 
Ch. VII.] Origin of Parliament, 237 
 
 gradually merged in that of feudal barons. The Earls also, 
 who were * at all times and without exception indisputably- 
 noble/^ never lost their right to attend. But as regards 
 all other military tenants in capite, although Constitution- 
 ally members of the Commune Concilium^ it is highly 
 probable that the King early assumed the power of select- 
 ing the persons to whom writs of summons should be 
 addressed.^ Thus the same indefiniteness and uncertainty 
 which had characterised the constitution of the Witena- 
 gemots continued as a feature of the feudal Great Councils. 
 With the exception of the famous Gemot of Salisbury in 
 1086, which was attended not only by the Witanbut by all 
 the landowners of the kingdom,^ whether tenants-in-chief 
 or not, and the similar general muster of landowners held 
 by Henry I. at Salisbury in in 6,* the complete assembly of 
 all the tenants-in-chief can hardly ever have taken place.^ 
 Still, the personal right always subsisted ; and it was the 
 infringement 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 summons — a differ- 
 ence which had been observed for at least half a century ^ 
 and probably from a still earlier period — is evidence of the 
 inequality then existing among the tenants-in-chief Though 
 
 1 Hallam, Midd. Ages, iii. 235. 
 
 - Report of Lords' Committee on Dignity of a Peer, 181 9. 
 See supra^ p. 59. 
 
 ** Flor. Wigorn. s.a. 1 1 16. 
 
 ^ ' 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 freeholders. . . . 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., Introduction, 22. 
 
 *» In 1 164, Archbishop Becket felt himself insulted by receiving a summons 
 to the Great Council in Northampton, not by special writ, but through a com- 
 mon summons directed to the Sheriff of Kent. Will. Fitz Stephen [Rolls ed. 
 iii. 51]. 
 
238 Origm of Parliament. [Ch. 
 
 formally recognised by Magna Charta, the right of the in- 
 ferior tenants-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 
 T\iQ majores of attending at long distances from home. Thus the 
 ancient National Assembly gradually ceased to be anything 
 more than an assembly of the ' greater barons,' and ulti- 
 mately developed into a hereditary House of Lords, the 
 Hereditary Upper House of the National Parliament^ The hereditary 
 thrHouse^ character of the House of Lords — now long regarded as 
 01 Lords. 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 National 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 L 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 even a lasting personal right much 
 less one that was hereditary ; - but by the time that the 
 
 1 The Lords' Committee (p. 314), speaking of the 15th of Edward IIL, 
 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 summons, 
 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, what- 
 soever their rights may have been in the reign of John, sunk into the general 
 
 - Freeman, Growth of Eng. Const., 61 ; Hallam [M. A. iii. 125], quoting 
 Prynne's 1st Register, p. 232, says : ' No less than 98 laymen were summoned 
 once only to Parliament, none of their names occurring afterwards ; and 50 others, 
 two, three, or four times. Some were constantly summoned 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. Bishop Stubbs 
 has briefly summed up the successive changes in the constitution of the baron- 
 age, the chronology of which is far from easy to fix. Originally including all 
 harones — that is, all homagers holding directly of the Crown — the baronage 
 was limited : (i) to all who possessed a united 'corpus' or collection of knights' 
 fees held under one title ; (2) to those who, possessing such a barony, were 
 summoned by special writ ; (3) to those who, whether entitled by such tenure 
 or not, had received a special summons ; (4) and finally to those who had 
 become by creation or prescription entitled hereditarily to receive such a sum- 
 mons.— Select Chart., Introductory Sketch, 37. [This account, of course. 
 
VII.] Origin of Parliament. 239 
 
 custom arose of creating baronies by letters patent (the 
 first instance of which [in England] was the creation of 
 Sir John Beauchamp of Holt as Lord Beauchamp of 
 Kidderminster, in the lOth of Richard II.), the hereditary- 
 nature of the baronage, irrespective of tenure, may be 
 regarded as the established rule.^ Still, the rule has 
 never been without exception. The presence of the Spiritual 
 Bishops in the House of Lords is at once an exception to P^^^^- 
 the principle 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 
 temporal ; and even after the abbots and priors had been 
 removed, the Bishops alone formed about one-third of 
 the House of Lords.^ Independently, however, of the Lay peer- 
 spiritual peers, several cases of the creation of lay peerages — ^^es for hfe. 
 
 must be taken as applying only to England. It would not, as far as the 
 evidence seems to go, be accurate if applied to Ireland, where there are some 
 questions not yet completely solved regarding the status of certain alleged 
 Feudal dignities, called, or claiming to be, Baronies, presumably by tenure. 
 It would be still less accurate if applied to Scotland, which certainly never 
 was divided into knights' fees, and where the lesser Barons continued to be 
 acknowledged as a part of the Baronial order, by the very Act 1427, allowing 
 them to attend in Parliament by representation, and who, as Barons, contested 
 precedence with the Baronets of Scotland and Nova Scotia, on the institution 
 of that order.— Ed.] 
 
 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 a SM^cieni proof of having 
 sat by virtue of it in the House of Lords, created a hereditary peerage. — 
 Nicolas's Case of the Barony of L'Isle, p. 2CXD. [The system of creation of Peers 
 by Letters Patent was unknown in Scotland until after the accession of James VI. 
 to the English throne, and was clearly copied from the English practice. The 
 exact date of the first creation of Lords of Parliament in Scotland, eo nojnine, 
 cannot be asserted with precision, but may be placed with sufficient approach 
 to accuracy at the middle of the fifteenth century. Charter of Comitatus, 
 with the designation of the grantee as Comes or Comitissa, passed an Earldom, 
 and the ancient Earldoms of Scotland, which were of Celtic or Celto- 
 Scandinavian origin, were descendible to heirs general, belonging, as they did, 
 to a period anterior to the general Feudalisation of Scottish Institutions which 
 may be broadly traced to the reign of David I. On these points reference 
 may be made to Riddell's Peerage and Consistorial Law, Skene's Celtic 
 Scotland, Robertson's Scotland under her Early Kings, Burnett's Exchequer 
 Rolls, Scotland, and the late Earl of Crawford's Earldom of Mar. — Ed.] 
 
 2 May, Constitutional History, i. 299. By the profuse creation of peers in 
 recent times, the relative proportion of the Bishops in the House of Lords has 
 been reduced from one-third to less than one-fifteenth. 
 
240 Origin of Parliament. [Ch. 
 
 Dukedoms and Earldoms — for life only ^ occurred between 
 the reigns of Richard II. and Henry VI., but from the 
 latter date, for more than four hundred years, no instance 
 is recorded of any man being admitted to a seat in the 
 House of Lords as a peer for life. In 1856, with the 
 object of improving the ancient Appellate jurisdiction of 
 the Upper House, an attempt was made to re-introduce 
 life-peerages by means of the Royal prerogative. This 
 was defeated, however, by the successful resistance of the 
 House of Lords.2 After an interval of twenty years, during 
 which the Appellate jurisdiction was at one time actually 
 abolished prospectively, as to England, by the Judicature 
 Act, 1873, two Lords of Appeal in Ordinary were consti- 
 tuted by Act of Parliament, with the rank of baron for life 
 and the right hi sitting and voting during their tenure of 
 office only.^ 
 Ideas of As the ordinary tenant-in-chief became gradually merged 
 
 representT-^ in the general mass of freeholders, his theoretical right 
 tion familiar of attending the Cofnmune Concilimn in person was ex- 
 nation, changed for the practical 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 
 
 ^ The cases are collected in the Report of the Committee of Privileges, 
 1856. 
 
 ^ The attempt in 1856 to re-introduce life-peerages in the person of 
 Sir James Parke, late one of the Barons of the Court of Exchequer, created 
 Baron Wensleydale 'for and during the time of his natural life,' 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 pur- 
 suance thereof, can entitle the grantee to sit and vote in Parliament.' In con- 
 sequence 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 expi sition of con- 
 stitutional 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 lef^ish live authority of Parliament.' — Const. Hist. i. 298. 
 
 3 39 & 40 Vict. c. 59. 
 
VII.] Origin of Parliament, 241 
 
 practice, elective. The Bishops and Abbots were supposed 
 to be elected by the clergy, of whom they were the repre- 
 sentatives. In the local courts of the hundred and the 
 shire the reeve and four men attended as representatives 
 from each township ; and the twelve assessors of the Sheriff 
 represented the judicial opinion of the whole shire. Sub- 
 sequently, in the system of recognition by jury, as estab- 
 lished by Henry II., the principles of election and represen- 
 tation were successively applied to almost every description 
 of business — fiscal, judicial, and administrative. In the 
 fJQur-sworn knights summoned by the sheriff to nominate 
 the recognitors of the Grand Assize we have, probably, the 
 first germ of a county representation.^ 
 
 The first historical instance of the extension to a National First histori- 
 Council of the representative machinery which had long of the sum- 
 existed in the Folkmoot of the Shire is afforded by the '^^^'^-^ ^f 
 
 ^ 7'epresenta- 
 
 Council held at St. Alban's on August 4th, 12 13, 2X\.^x tives to a 
 John's submission to the Pope, and during his dispute with ^^^^^^^^^f 
 the Northern barons on the question of foreign service.^ St. Aiban's, 
 This assembly was attended not only by the Bishops and ^^^^' 
 Barons, but also by the representative reeve and four men 
 from each township on the Royal demesne. The imme- 
 diate business to be transacted was the assessment of the 
 amount due by way of restitution to the Church ; but 
 several other matters of national importance appear to 
 have been discussed 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 at Win- 
 chester, 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.^ 
 
 ^ Stubbs, Select Chart., Introductory Sketch, 24 ; and see Palgrave, Eng. 
 Commonwealth, ch. viii. 
 
 2 See supra, p. m. 
 
 3 Matt. Paris, p. 239, s.a. 1 21 3. 
 
 CH. R 
 
242 
 
 Origin of Parliament. 
 
 [Ch. 
 
 County 
 representa- 
 tion in 
 Parliament : 
 four in- 
 stances prior 
 to De 
 Montfurt's 
 Parliament 
 ^71265. 
 
 (i.) 7th 
 
 Nov., 1213: 
 four knights 
 from each 
 
 £Ounty sum- 
 
 jiioncd to 
 
 Oxford. 
 
 Increased 
 use of 
 elected 
 ■county 
 represcnta- 
 
 Four instances of summoning representatives of the 
 shires to the National Council are met with prior to De 
 Montfort's celebrated Parliament of 1265, which is some- 
 times erroneously spoken of as the * origin of popular re- 
 presentation.' ^ (i) The first occurred during the contest 
 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 his writ to 
 the sheriffs, directed four discreet knights of each shire to 
 be sent to him at Oxford ad loquendum nobiscum de 
 negotiis regni nostri. There is 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 recognised machinery for the 
 election, in the County Court, of four knights, to nomi- 
 nate the recognitors in civil suits and the Grand Jury for 
 the presentment of criminals, we may reasonably conclude 
 that the accustomed 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 summoned generally by the Sheriff, though it 
 undoubtedly recognized their personal right to attend, 
 was practically interpreted by the light of the county 
 representation system already introduced less than two 
 years previously. If, as we cannot doubt, the County repre- 
 sentatives were elected in the County Court, it follows, since 
 all freeholders had a right to attend this court, that the 
 knights of the shire were held to represent not merely the 
 minor tenants-in-chief, but all the freeholders of the shire." 
 
 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 increas- 
 
 ^ E.g. Hallam, speaking of De Montfort's parliament, says, * almost all 
 judicious inquirers seemed to have acquiesced in admitting this origin of popular 
 representation.' — Middle Ages, iii. 27. 
 
 2 Stubbs, Select Chart., Introd. Sketch, 39, 40. See also, Const. Hist. ii. 
 225-232. 
 
viL] Origin of Parliament. -43 
 
 ing use of representatives elected in the County Court for [jj^^^^^^^^^ 
 fiscal and other purposes. Thus, in 1220 and 1225, two other mat- 
 writs of Henry III. direct the election of knights for the ^^'^• 
 assessment and collection of subsidies,"^ 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.^ To a general assembly N<^'"^ of 
 
 /.,-r^ _ ,. -, /»-r»i. .Q Parliament. 
 
 of the Barons at London m 1246, the name of Parliament,"^ 
 which had previously been indiscriminately ascribed to 
 assemblies of various kinds, is for the first time given by a 
 contemporary chronicler, Matthew Paris (p. 696). Hence- 
 forth it became specially, though not for many years ex- 
 clusively, the appellation of the National Council.* 
 
 1 Close Rolls, i. 437 ; Rymer, i. 177. 
 
 2 Report on Dignity of a Peer, App. i. 4. 
 
 •^ [The name of Farlamentumy or publicum parlamentum, was in use in the 
 Republic of Avignon during the 13th century, for the Plenary Assembly of the 
 People, otherwise called Concio, picblica concio, or iiniversitas civmm, or 
 civitatis^ in front of or within the church of Notre Dame des Doms. Cf. 
 Nouv. Rev. Hist, de Droit, 1877, p. 188, art. Coutumes et Reghtnents de 
 la Rep. ^Avignon, by Rene de Maulde. The first recorded use of the name 
 Parliament in Scotland is given as 1292, and ascribed to John de Balliol, by 
 Mr. A. Robertson, Government, Constitution and Laws of Scotland, '^. 67. It 
 was applied to the Great Council of William the Lion by Jordan Fantosme, 
 before Parliament, in the full Constitutional sense, existed either in Scotland 
 or England, and was probably used in a broad, general sense, in the thirteenth 
 century for any assembly which, as at Avignon, could be called Popular or 
 Representative. What Richard de S. Germano, p. 992, calls Curia generalis 
 pro bono statu regni, as convoked by the Emperor Frederick II. for the 
 Kingdom of Sicily and Naples at Capua in 1220, De Cherrier, Hist, de la 
 Lutte des Rapes et Empereurs, II., 263, citing Richard, calls a ' Parlement 
 General,' and the title is probably fairly appropriate. — Ed.] 
 
 ■* In a writ of the 32nd of Henry III. (1247), the expression 'coram rege et 
 toto parliamento ' is used. — Rot. Claus. 32 Hen. HI. m. 13, dors. Even 
 after the National Council had permanently in 1295 assumed the form of a per- 
 fect representation of the three Estates of the Realm, the name of Parliament 
 continued, though improperly, to be applied both to the terminal sessions of 
 the King's Ordinary Council, and to the occasional assemblies of the Magnum 
 Concilium. From these councils the true National Council, the Commune Con- 
 cilium Regni, is sometimes distinguished by the Chroniclers as Generale Parlia- 
 mentum. A not infrequent term in early use for the sessions of the National 
 Council was the Latin colloquitim ; and 'it is by no means unlikely,' remarks 
 Bishop Stubbs, ' that the name of Parliament, which is used as early as 1175 
 by Jordan Fantosme [who mentions, 1. 288, that the King of Scots held * sun 
 plenier parlement: ' — Ed. ] may have been in common use. . . . When the term 
 comes into use it is applied retrospectively ; and in a record of the 28th year of 
 Henry HI., the assembly in which the Great Charter was granted is mentioned 
 as the " Parliamentum Runimedae.'" — Const. Hist. i. 570; ii. 224, 261. 
 
 R 2 
 
244 
 
 Origin of Parliament. 
 
 [Ch, 
 
 (ii.) 1254: 
 
 hvo knights 
 frovi each 
 C07inty 
 stivwioned 
 to West- 
 minster. 
 
 Henry III. 
 excites the 
 national 
 opposition. 
 
 (2) The second instance of County representation in 
 Parliament is met with in 1254; when Henry III. was in 
 Gascony, and in want of men and money. By his direc- 
 tion Queen Eleanor and the Earl of Cornwall, the 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 re- 
 present the whole county, and are to have a deliberate 
 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.^ 
 
 The utter falseness of Henry HI. — who persistently dis- 
 regarded the Great Charter, notwithstanding his repeated 
 solemn confirmations of it — his devotion to successive sets 
 of foreign favourites, his foolish and expensive 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 resistance equal to, if not exceeding in 
 intensity, those which had inspired the combination against 
 John. 
 
 Matters came to a crisis in the Great Council or Parlia- 
 ment, which met at London on the 9th of April, 1258 ; 
 and after stormy debates, lasting till the 5th of May, the 
 King found himself obliged to submit wholly to the 
 
 * The words of the writ are : ' quatuor legales et discretes milities de comi- 
 tatibus praedictis [Bedeford et Bukingeham] quos iidem comitates ad hoc 
 elegerinty vice omnium et singuloruin eorundem comitatum, videlicet duos de 
 uno comitatu et duos de alio.' — Lords' Report on the Dignity of a Teer, i. 95, 
 and App. i. p. 13 ; Select Chart. 367. 
 
VII.] Origin of Parliament, 245 
 
 guidance of the barons. At their desire he consented to The Mad 
 
 1 . r /- • r T« r Parhajtieiit 
 
 the appointment of a Committee of Twenty-four persons, at Oxford, 
 to be elected, twelve by the barons and twelve by the ^^^S- 
 King, in a Parliament — which the King's friends stigma- 
 tised as the ' Mad Parliament ' — summoned to meet at 
 Oxford on the nth of June. To these Twenty-four un- j2c8. 
 limited power was confided to carry out all necessary 
 reforms. They began by drawing up the set of articles 
 known as the Provisions of Oxford, under which all the Provisions of 
 powers of government were placed in the hands of a kind ^-^^^ 
 of representative oligarchy .^ By a rather complicated Council of 
 process, bearing some resemblance to the Venetian Consti- 
 tution, each twelve of the twenty-four selected two from 
 the other twelve, and the four thus chosen elected fifteen as 
 a continual Council of State. Another committee of twenty- Committee of 
 four was appointed for the special business of treating ^^ for^Auh^ 
 the aid required by the King for the war ; and in order, 
 as was alleged, to spare the other members the expense of Committee 
 frequent attendance in Parliament (which was to meet three for pariia- 
 times a year), a third body of ' twelve honest men ' was J^^entary 
 
 •^ ^' *' busmess. 
 
 •elected by the barons, as representatives of the community, 
 to treat with the King's Council of the common need.^ 
 
 Although representatives of the shires were not sum- 
 moned to the Oxford Parliament, the machinery of County 
 representation was [yet] made use of for other purposes under 
 the Provisions, each county being directed to elect ' four 
 
 1 The government in England has on four occasions been placed for a time Oligarchies 
 in the hands of an oligarchy. In John's reign, the 25 barons of Magna Charta; in England. 
 under Henry III., the Oxford Committee of 24; under Edward II., the 21 
 
 Lords Ordainers ; and under Richard II. the 5 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, 
 <rorganiser d'avance et legalement la guerre civile, en cas de violation de la 
 •charte. Les barons qui dicterent la loi a Henri 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 constitution meme du gouvernement. 
 Ne pouvant contenir dans de justes limites I'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 I'aristocratie. — Hist, des Origines du Gouverne- 
 ment Representatif, p. 165. 
 
 2 See the series of documents relating to the Provisions of Oxford in Stubbs, 
 Select Chart. 369-396. 
 
246 Origin of Parliament, [Ch. 
 
 discreet and lawful knights ' to inquire into abuses. The 
 application, moreover, of the principles of election and 
 representation to the constitution of the governing bodjr 
 of the kingdom under the Provisions, was probably not 
 without effect in securing popular representation in Parlia- 
 ment. In these Provisions 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 councillors as ' chosen by us and by the 
 layidsfolk of our kingdom ' ;^ an expression which calls to- 
 mind the landsittende men who attended King William's 
 Gemot 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 repre- 
 sented in the governing council, 
 (iii.) 1261 : (3) In 1 26 1 the King openly refused to abide by the 
 fivmeacV ^ Provisions of Oxford, and civil war broke out. During the 
 county contest, the confederate Barons summoned to St. Alban's 
 
 sunwioned to i . i r i 
 
 St. Albaji's. three knights from each county, secum tractattiros super com- 
 
 munibus 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, nobiscuni super prae^nissis colloquium 
 
 habituros? 
 
 (iv.) 1264 (4) The decisive victory at the battle of Lewes, on the 
 
 '^D^Mmt-'' ^4^^ ^^ ^^y^ ^^^4' followed by the surrender of the King 
 
 fort's 1st and his son Edward, placed the supreme power in the 
 
 Foul'^ktd^hts hands of Simon de Montfort. Although the arbitration 
 
 from each of St. Louis of France and his award in Henry's favour 
 
 county 
 
 summoned (23rd of January, 1264) had served only to rekindle the 
 
 to London, fla^ne of civil Avar, a proviso was inserted in the ' Mise of 
 
 Lewes,' referring all controversies between the King and 
 
 the Barons to the decision of a second arbitration. la 
 
 the meantime, De Montfort, having placed friendly garri- 
 
 1 Rymer, i. 378. 
 
 - Report on Dignity of a Peer, App. i. p. 23 ; Shirley's Royal Letters of 
 Hen. HI. ii. 179. 
 
VII.] Origin of Parliament, 247 
 
 sons in all the Royal castles, issued writs in the King's 
 name, appointing certain extraordinary magistrates, called 
 guardians of the peace, in every county, and summoning 
 four lawful and discreet knights, per assensum ejiisdem 
 comitatus ad hoc electos pro toto comitatu illo^ to attend the 
 King in Parliament at London, 7tobiscum tractaturi de 
 riegotiis praedictis} 
 
 If not * the founder of representative government in Simon de 
 England,' as Guizot has termed him, Simon de Montfort foundeTof 
 may justly be regarded as the 'founder of the House of the House of 
 Commons.' =^ An assembly of knights of the shire, exclu- 
 sively 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 De Mont- 
 Leicester, belongs the lasting glory of having been ^^ ParuJlnmt, 
 first to admit within the pale of our political constitution ,^4th Decem- 
 
 ber, 1264. 
 
 the really popular and progressive Burgher class, which, Kepresenta- 
 tosfether with the freeholders of the counties, constituted f ^^"^ ^^ 
 henceforth the newly-developed Third Estate of the realm.^ moned. 
 This 'bold and happy innovation' was effected on the 
 14th of December, 1264 (49th Henry HI.), when De 
 Montfort, in the name of the captive King, summoned his 
 famous Parliament to meet at London on the 20th of the 
 following January.'^ Writs were issued to all the sheriffs 
 
 ' See the Writ, Rymer, i. 442. Guizot very justly remarks : II fallait 
 que les idees sur I'autorite legale des parlements et sur I'illegitimite de la force 
 en mati^re 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 Montfort. 
 
 3 For an examination of the authorities in favour of an alleged (but apocry- 
 phal) earlier representation of towns, and especially the complaint of St. Alban's 
 in the 8th Edward II. and the complaint of Barnstaple in the i8th Edw. III., 
 see Hallam, Middle Ages, iii. 28-34, 228. 
 
 '* On the career of De Montfort, the popular hero and martyr-saint, see 
 Blaauw, Barons' War, and Pauli, Sitnon 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 the adventurers who thronged the court of a king 
 who turned his back on his own people. The first noble of England, the 
 
248 Origin of Parliament, [Ch. 
 
 directing them to return not only two knights from each 
 shire, but also two citizens from each city, and two bur- 
 gesses from each borough.^ 
 Progress of The towns of England, from a position of semi-servitude, 
 the towns, j^^^ slowly attained to the possession of liberty, wealth, 
 and the political franchise.^ Originally the demesne of the 
 King or other lord, spiritual or temporal, they long con- 
 tinued 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 individuality 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 nomi- 
 nated reeve, assisted by a body of counsellors, subse- 
 quently known as the leet jury. With this primitive 
 organisation, the independent voluntary association of 
 trade guilds ultimately coalesced.^ As the boroughs 
 
 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.' — Freeman, Growth of Eng. 
 Const. 83. 
 
 1 See the writ in Rymer, 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 comitatum 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 discretioribus, 
 legalioribus et probioribus tarn civibus quam burgensibus suis. 
 
 Item in forma praedicta mandatum est baronibus et probis hominibus 
 Quinque Portuum. 
 
 2 [The silent but persistent growth of towns into the fulness of Communal 
 liberties during the Early Middle Ages, is well illustrated, on the Continent, by the 
 history of Faverney, which grew up under the Abbey of Faverney, during the 
 troubled period 700-1132, when the Nuns had so much to do to see to the safety 
 of their House, that they ultimately deserted it. By 1260, the Benedictine monks 
 who had succeeded the Nuns, found it necessary to make the men of the town 
 of Faverney confess that they were * tailliabiles abbati et Conventui. ' But the 
 town still grew, with its twelve prtidhommes and three echevins, elected by the 
 townsfolk, side by side with two echevins elected by the Nobles and the 
 Church. And in 1428 the town acted as a Communautey with liberties and 
 franchises, proved by ancient usages and customs, which the Abbey recognised. 
 See Nouv. Rev. Hist, de Droit., 1878, p. 67 seq.^ Art. Les Franchises Munici- 
 
 pales du Bourg de Faverney^ by Jules Finot. — Ed.] 
 
 3 SuprUy pp. 21-22. 
 
VII.] Origin of Parliament. 249 
 
 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 tene- 
 ments 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 Conquest, 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-govern- 
 ment through the medium of elected and representative 
 magistrates.^ 
 
 As in the case of the counties, so in that of the boroughs, Representa- 
 the representative machinery was first employed for *V^5 ^^\ 
 
 ^ '' r J chinery first 
 
 judicial and financial purposes before its extension to the employed 
 domain of politics.^ In the court of the shire— the ancient fn^Fisclf 
 Folk- Moot, or assembly of the people — all the national purposes, 
 elenicnts had from time immemorial been wont to meet 
 together, the bishops and other dignified clergy, earls, 
 barons, knights, and freeholders in person ; ^ the townships 
 each by their representative reeve and four men. As the Representa- 
 boroughs gradually grew into incorporate municipalities, {JoJ^jy^^s^ 
 they also sent their representatives to the assembly of the Shire 
 
 Courts. 
 
 ^ 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, 256-259,299-306; and on the difficult and 
 obscure subject of the various constitutions of the cities and boroughs, see his 
 Const. Hist. ii. 216, 232 ; and Hallam, Midd. Ages, iii. 220. 
 
 - [On taxation generally, see Dowell, History of Taxation and Taxes in 
 England^ 1884. The mediaeval period is comprised in vol. i. bks. i.-vi. — Ed.] 
 
 3 [The personal attendance of the Freeholders generally in the County Court, 
 after the Conquest, is now being denied by some writers, e.g.^ Mr. F. W. 
 Maitland, and Mr. J. H. Round, in Arts, in Eng. Hist. Rev., and Arch. Rev.., 
 1888-9, but it does not appear that any Legislative restriction of this right or 
 duty of the Freeholder is adduced in favour of the new theory that, when 
 present, it was in virtue of some special duty, and not as Freeholder. Until 
 evidence of a Legislative restriction of the right is adduced, it would seem to 
 the present Editor safer to adhere to the old view of the continuity of the 
 Freeholder's presence. — Ed.] 
 
250 Origin of Parliament. [Ch. 
 
 the shire. This is apparent from^ a very important wrif^ 
 issued by Henry III. in 1231 to the Sheriff of York- 
 shire, for assembling the county court before the Justices 
 itinerant, in which he is directed to summon for that 
 purpose not only the persons already enumerated, but 
 also twelve lawful burgesses as representatives from every 
 borough.^ 
 First symp- The year 12 13, in which the first instance of county 
 representa- representation occurred, is also the date of the first symp- 
 Hon of towns tom — it Can scarcely be termed anything more — of the 
 National representation of towns in the Central Assembly. To the 
 Ass^embiy, Council (the importance of which has already been pointed 
 out ^) summoned by King John to meet at St. Alban's in 
 12 1 3, and at which the prelates and 'magnates 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.^ This was 
 evidently an adaptation for a particular 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 words of the writ are : omnes archiepiscopos, episcopos, abbates, 
 priores, comites, barones, milites, et omnes libere tenentes, de tota balHa tua, 
 et de qualibet villa, quatuor legales homines et praepositum, et de quolibet 
 burgo duodecim legales burgenses. — Shirley, Royal Letters, i. 325. Bishop 
 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 parhament. 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 assimila- 
 tion to them of the new municipal ones, makes a perfect parliament possible. ' 
 —Select Chart. 349. 
 
 2 Supra, pp. 114, 241. 
 
 ^ S.a. 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, ut per 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. 
 
VII.] Origin of Parliajnent, 251 
 
 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 bar ones, proceres, et magnates ^ 
 but also of nobiles portiiurn maris habitatores, nec?zon et 
 clerus et populus universus.^ We are not, however, jus- 
 tified 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 representatives of the towns was to secure 
 their consent to taxation, and hitherto the kings had 
 found it more convenient 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 Transition- 
 central assembly elected representatives of the boroughs, constitudou" 
 completed the formation of the National Parliament on of Parlia- 
 
 , . „ , , • , . 1 . 1 • ment, 1265- 
 
 substantially the same basis which it has ever since 1295. 
 
 retained. But its existence during the next thirty years 
 
 was still precarious. From 1265 to 1295 was a transi- 
 
 tionary period ; and it is only from the latter year that [Perfect 
 
 we can date the regular and complete establishment of a ^^^^^'^'^^ "oT 1 
 
 perfect representation of the Three Estates in Parliament. 
 
 There is no proof that representatives of either counties or Parliament 
 
 boroughs attended the Parliaments of the latter years of yeals^f^ 
 
 Henry III.'s reign. The statement, however, in the preamble l^enry ill. 
 
 to the Statute of Marlborough (52 Hen. HI.) that the King 
 
 had called together the more discreet men of the realm tarn 
 
 ex majoribus quam, mijioribus affords a strong presumption 
 
 that the knights of the shire attended the Parliament 
 
 of 1267.2 A contemporary chronicler, moreover, records 
 
 the summoning in 1269 of representatives from the cities 
 
 and boroughs, to assist at the translation of the body of 
 
 Edward the Confessor to Westminster Abbey, and that 
 
 on the conclusion of the ceremony a Parliament was held, 
 
 ^ Matt. Paris, 700. [Cf. Arch. Rev., Jan. 1890, Prof. Burrows on the 
 Cinque Forts. — Ed.] 
 2 Statutes of the Realm, p. 19; and see Stubbs, Const. Hist. ii. 222. 
 
252 Origin of Parliament. [Ch. 
 
 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.^ The fact, however, that they 
 were summoned on this occasion, together with the prelates 
 and magnates of the kingdom, is evidence of the greatly 
 increased importance with which the Civic element in the 
 nation was now regarded. 
 Parliaments Under Edward I. instances of representation are few, 
 Edward I 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 representatives 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, contain- 
 ing representatives from either counties or boroughs, or 
 from both, were occasionally summoned for extraordinary 
 purposes. 
 1273. At the national assembly, summoned after the death 
 
 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.^ 
 
 ^ S.a. 1269. Convocatis universis Angliae praelatis et magnatibus, nee non 
 cunctarum regni sui civitatum pariter et burgorum potentioribus . . . vene- 
 
 randas illas reliquias (sc. Sancti Edwardi) de veteri scrinio transferens 
 
 Celebrato tandem tantae translationis solemnio, coeperunt nobilesy ut assolent, 
 parliamentationis genere de regis et regni negotiis pertractare. — Chron. T. 
 Wvkes [Ann. Mon. iv.], 226[-7]. 
 
 ^ S.a. 1273. Facta convocatione omnium praelatorum et aliorum magna- 
 tum regni apud Westmonasterium, post mortem illustris regis Henrici, con- 
 
VII.] Origin of Parliament, 253 
 
 On his return to England, Edward summoned his first 1275. 
 general Parliament at Westminster in April, 1275. In the uament of 
 preambles of the important statutes therein enacted (the ^^^^^^"^ ^■ 
 statute of Westminster I. and the statute granting to the 
 King the custom on wool, woolfells, and leather), they are 
 said to be made ' by his council and 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 commnnitates regni 
 ad instantiam et rogatum mercatorum^ as well as by the 
 prelates and barons.^ 
 
 In 1283, while the King, the barons, and the mihtary 20th Jan. 
 force of the kingdom were at Rhuddlan, intent upon the Extraor- 
 conquest of Wales, two extraordinary assemblies were dinary 
 summoned, the one at Northampton, the other at York, Northamp- 
 to raise additional forces and grant subsidies. Writs were ^^'^ f '^^ 
 
 ° York. 
 
 issued on the 24th November to the sheriffs, ordering them 
 to send to Northampton or York, as the case might be, on 
 the 20th of January, 1283, (i) all freeholders, 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 community of the same 
 county ; and (3) two men from each city, borough, and 
 market town, having like power for the community of the 
 same, ad audiendum et faciendum ea quae sibi ex parte 
 nostra faciemus ostendi? The Parliamentary proceedings y 
 of this year are important, as ' marking the point of final 
 transition from the system of local to that of central assent 
 to taxation.' ^ The King had already, in order to raise 
 
 renerunt archiepiscopi et episcopi, comites et barones, abbates et priores, et 
 de quolibet comitatu quatuor milites et de qualibet civitate quatuor, qui 
 omnes. . . . [sacramentum eidem domino Edwardo tanquam terrae principi 
 praestiterunt]. — Ann. Winton. 113. [Ann. Waverl. 379.] 
 
 1 Stat. Westminster L, vStatutes of the Realm, i. 26; Palgrave's Parlia- 
 mentary Writs, i. 2. The presence of representatives of the commons in 
 Parliament may also be inferred from the preamble of the statute of Marie- 
 bridge (51 Hen. III.), convocatis discretioribus tarn majeribus quam minoribusy 
 repeated in French in the statute of Gloucester (6 Edw. I. ), appelez les plus descrez 
 de sun regnCy ausi bien greindres, cum des meindres. [Rev. Stat. i. 29. — Ed.] 
 
 2 Palgrave's Parliamentary Writs, i. 10. 
 
 3 Stubbs, Select Chart. 449. 
 
254 
 
 07dgin of Parliament. 
 
 [Ch. 
 
 1283, 
 
 30th Sep- 
 tember, 
 Parliament 
 of Shrews- 
 bury or 
 Acton 
 Burnell. 
 
 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 
 assemblies of representatives of the counties and boroughs 
 above described. Convocations of the Bishops, abbots, 
 priors, and other heads of religious houses, with the 
 proctors of the cathedral clergy of the provinces of Canter- 
 bury and York were also summoned, through their respec- 
 tive Archbishops, to meet at Northampton and York on the 
 same day as the Estate of the Commons, for the purpose 
 of making a grant to the King.^ On the ground that the 
 parochial clergy were unrepresented, the Convocation of 
 Canterbury refused to contribute anything ; and it was not 
 until after a long delay, during which the diocesan synods 
 were separately consulted, that a ' twentieth ' (half the sum 
 originally demanded by the King) was at length granted in 
 another Convocation, held in November, and attended by 
 two proctors from the parochial clergy of each diocese.^ 
 
 In June of the same year, Edward, being at Rhuddlan, 
 summoned a national Council to meet at Shrewsbury on 
 the 30th of September, for the purpose of passing judgment 
 of treason 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 (i) to the sheriffs throughout 
 England, directing the attendance at Shrewsbury of two 
 elected knights from each county, and (2) to the magis- 
 trates of London and twenty other towns, directing the 
 return from each of two elected representatives nobisctim 
 siLper hoc \sc. quid de David fieri debeat] et aliis locuturi.^ 
 
 * See Palgrave's Parliamentary Writs, i. 384, 387. 
 
 2 Pari. Writs, i. 10. 
 
 ' Stubbs, Select Chart. 452. The Convocation of York seem to hare been 
 more compliant, but their promised contribution was still unpaid three years 
 afterwards. Id. Const. Hist. ii. 115. 
 
 ^ Parliamentary Writs, i. 16. 
 
A^iL] Origin of Parliament. 255 
 
 This assembly is called by contemporaries the Parlia- 
 ment of Shrewsbury or Acton Burnell. Exception has 
 been taken to the use of the word ' parliament ' 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 Mercato- 
 ribusf 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 only. 1290. 
 On the 14th of June, 1290 (i8th Edward I.), writs were 
 issued to the sheriffs to send from each shire, to a Parlia- 
 ment at Westminster on the 15th of July, two or three 
 elected knights, ad considendum et consentienduin pro se 
 et tota communitate comitatus, hiis quae comites, barones^ 
 et proceres tunc duxerint concordayida? The transitory state 
 of Parliament is peculiarly illustrated by the proceedings 
 of this year. The King had already held a Parliament 
 on St. Hilary's Day (Jan. 13), to which the magnates and 
 proceres only were summoned. In a second session of 
 this Parliament, on the morrow of Holy Trinity (29th of 
 May) the prelates, earls, barons, and proceres granted 
 for the marriage of the King's eldest daughter {ad filiani 
 
 ^ The fact that the principal object of the assembly was a trial for a capital 
 offence sufficiently accounts for their non-summons. [But of. Sal. Chart. 
 453.— Ed.] 
 
 '■' II Edw. I., confirmed by 13 Edw. I. c. 3. 
 
 ' Report on the Dignity of a Peer, App. i. 54; Palgrave's Pari. Writs, i. 21. 
 
256 Origin of Parliament. [Ch. 
 
 suam primogenitam maritandmn)} (i) that he should take 
 an aid of the same kind and aniount as his father King 
 Henry had taken from the kingdom for the marriage of his 
 daughter to the King of Scots, and (2) after reciting that 
 King Henry had only received from each knight's fee two 
 marks (i mark = 13^. \d) they further granted that the 
 King, for this turn, should take forty shillings on every 
 knight's fee ; but on condition that the present grant 
 should not form a precedent to their prejudice, and that the 
 aid should be levied in the same manner as that granted to 
 King Henry .2 It is remarkable that the aid was further 
 declared by the magnates to be granted pro se et cominu- 
 nitate totiits regni quantum in ipsis est} words which seem 
 to express a doubt of their competency to make a grant, 
 even on the knight's fee, for the whole community, without 
 
 1 Rot. Pari. i. 25. The words of the Roll are ^vsXxnzWyfiliam primogettitam^ 
 and indeed it is difficult to understand, having regard to the well-known 
 feudal incidents, how the aid purfille marier could be asked for any other than 
 the eldest daughter. The fact, however, that Edward's second daughter Joan 
 of Acre had been married shortly before, on the 30th of April, to the Earl of 
 Gloucester (Cont. Flor. Wigorn. ii. 242) seems to have led Bishop Stubbs to 
 infer in his Const. Hist. (ii. 121) that the aid was demanded not indeed for, but 
 on the occasion of, Joan's marriage, which was made use of by the King as a 
 pretext for 'raising money on the old customary plea.' The genealogical 
 accounts of Edward's children by his two wives are by no means free from 
 ambiguity ; but Rapin (Hist. Eng. i. 303), Anderson (Royal Genealogies, 
 Table 491), Betham (Geneal. Tables, tab. 506), Bouillet (Atlas d'Histoire, 
 1865, p. 511), the 'Annals of England' (Lib. ed. p. 166), and Burke (Peerage) 
 [1890] concur in making Eleanor the eldest daughter of the first marriage. 
 Mr. Hereford B. George (Geneal. Tables, 1874, tab. 3) omits all mention of 
 Eleanor and makes Joan [born 1272, Cont. Flor. Wig. ii. 210] the eldest 
 daughter. Bishop Stubbs agrees genealogically with the majority of these autho- 
 rities that Joan 'was not the King's eldest daughter.' According to Anderson 
 (tab. 491) the eldest daughter Eleanor was born in 1268 [Bouillet, Atlas ^ u. j., 
 says 1266, the Annals of England 1264J ; married, ist by proxy, to Alphonso, 
 King of Aragon, who died before consummation, and 2ndly, in 1294 \Cont, 
 Flor. Wig. gives the date as 20th Sept. 1293], to Henry, Count of Bar ; and 
 she died 1298. In another table (p. 706) Anderson states that Alphonso HI., 
 ' Munificus,' succeeded as King of Aragon in 1285, and died in 1291. The 
 marriage (by proxy) between Eleanor and Alphonso must have been contracted 
 before the demand of the aid pur fille marier, in May, 1290; and it would 
 seem therefore that the aid for her marriage was demanded in the ordinary 
 course, and that Joan's marriage to Gilbert de Clare, Earl of Gloucester, on 
 the 30th of April, as well as the marriage of her other sister Margaret, to 
 John, Duke of Brabant and Limburg on the loth of July (Cont. Flor. Wig. ii. 
 243) [9th, Ann. Dunst. 359] were only accidentally coincident. [See note, 
 post, p. 272, for latest documentary evidence. — Ed.] 
 
 ' Rot. Pari. i. 25 ; Palgrave's Pari. Writs, i. 20. 
 
 ' Rot. Pari. loc. cit. 
 
VII.] Origin of Parliament. 257 
 
 the presence of the Commons, or at least of the minor 
 tenants-in-chief. The aid pur fille mar'ier was one of the 
 three ancient feudal imposts excepted from the twelfth 
 section of King John's Magna Charta,^ and, even if that 
 section had not been omitted from every subsequent re- 
 issue of the Charter, would not appear, in strict law, to have 
 required a Parliamentary authorisation. But the amount of 
 the aid in the case of tenants in capita was not yet fixed by 
 law,^ and hence the necessity for an agreement with them 
 on this point. The hesitation of the magnates to bind the 
 minor tenants-in-chief without their authority, seems to 
 mark the deepening sense of the injustice of taxation with- 
 out consent which seven years later was to culminate in the 
 general restraint on arbitrary exactions embodied in the 
 Confirmatio Chartarum. It was probably in consequence 
 of the doubts entertained by the magnates as to their 
 authority, and also not without a view to a further grant, 
 that the representatives of the shires were summoned 
 on the 15th of July to give their consent. In the mean- 
 time, 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 Westminster the Third or Quia EinptoreSy 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 general 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- 
 owners with the counsel and consent of the baronage alone, 
 
 * Supra, p. 134. 
 
 ' The aids payable by the tenants of mesne lords, for making the eldest son 
 a knight or marrying the eldest daughter, had been fixed by the slat, of West. I. 
 3 Edw. I. c. 36, at 20J. on the knight's fee. It was not until the 25 Edw. III. 
 c. II, that the same was done for the tenants in capite. 
 
 * SuprUy pp. 67, 150, n. I. 
 
 C.H. S 
 
258 Origin of Parliament, [Ch. 
 
 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 1302),^ and in lieu thereof the King 
 appears to have accepted a ' fifteenth ' from the laity and a 
 * tenth ' from the clergy.^ 
 "94- Four years later, on the 8th of October, 1294, the King 
 
 being in want of money, both for the suppression of the 
 Welsh rebellion and for his projected expedition against 
 Philip the Fair for the recovery of Gascony, again summoned 
 to a Parliament which was to meet at Westminster on the 
 1 2th of November, two elected knights from each shire ad 
 consulendum et consentiendiim pro se et commufiitate ilia 
 Mis quae comiteSy barones^ et proceres praedicti concor- 
 diter ordhiaverint in praemissis. On the following day 
 fresh writs were issued summoning two other knights from 
 ^ each county to attend in addition to those previously called 
 
 ad audiendum et faciendum quod eis tunc ibidem plenhis 
 injungemiLS? The barons and knights granted a * tenth ; ' 
 and a * sixth,' probably by way of talliage, was exacted from 
 the towns without asking their consent* 
 1295. The following year, 1295 (23rd Edward I.), is an im- 
 
 transitionary portant epoch in Parliamentary history. It marks the close 
 
 period. 
 
 In the order for its collection, dated 7th Nov., 30 Edw. I., the King de- 
 clares 'cujus quidem auxilii levacioni faciende, pro dicte communitatis aisia- 
 mento, hucusque supersedimus graciose.' Rot. Pari. i. 266. [Pat. 30 Edw. I. 
 n. I.— Ed.] 
 
 2 Annal. Dunstapl. p. 362. The documents and other authorities for the 
 constitution of Parliament during the transitionary period, 1265- 1295, with 
 the valuable comments of Bishop Stubbs thereon, should be carefully studied 
 in Select Chart, pp. 420-429, 438-441, 449-455. 457, 464-476. 
 
 * Report on Dignity of a Peer, App. i. 60. 
 
 '* Matt. Westm. 422. [Dowell, Hist, of Taxation, i. p. 64, citing Records, 23 
 Edw. I., Roll 73, says, ' Tallage was again used in 1294, when a grant was 
 obtained by separate negotiation with the cities and boroughs, on an occasion 
 when no representatives of their interests had been summoned to Parliament, 
 and the barons and knights had granted, on their part, a tenth of all their 
 moveables. London made the liberal grant of a sixth of moveables, and the 
 sixth was levied in ten other towns by royal commissioners appointed for the 
 purpose of * asking, requiring and effectually inducing personally the tenants of 
 demesne' to make the grant *by all ways that they should see expedient.' — Ed.] 
 
VII.] Origin of Parliament, 259 
 
 of the transitionary period, and the ree^ular and complete Perfect re-- 
 
 - - . r 1 T-i presentation 
 
 establishment of a perfect representation of the lux^^ of the Three 
 Estates of the Realm in a really national Parliament.^ ^^^^^^^/ 
 Edward's difficulties had become serious. The expedition 
 to France was still delayed by the rebellion of the Welsh, 
 and before their obstinate resistance could be subdued, war 
 with Scotland supervened. The French had not only over- 
 run Gascony, but had sent a fleet to the English coast, 
 which effected a landing at Dover and burnt a convent and 
 several houses on the ist of August — the very day on 
 which a Great Council had been summoned to meet at 
 Westminster^ to consider, among other things, the pro- 
 posals of two Legates sent by the Pope to endeavour to 
 bring about peace between France and England.^ The 
 Legates were ultimately empowered to conclude a truce ; ^ 
 but the position of the kingdom was still critical, and 
 Edward seems to have felt that he required to be backed 
 up by the whole nation, supporting him as well by their 
 
 1 * The materials of a parliamentary constitution were ready to his (Ed- 
 ward's) hand, yet it cannot be denied that it is to him 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 ParUa- 
 ment thus formed he submitted his legislative enactments. 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 England was the noblest monument ever 
 reared by mortal man. . . . He 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 sprang, 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 por- 
 tion, which at any given time, is capable of representation. . . . Edward was 
 a far more powerful sovereign than his father, not so much by the immeasur- 
 able superiority of his genius, as because he placed the basis of his authority on 
 a broader footing, and carried on the work of consolidating the English nation 
 in the only way in which such a work can, in the end, be successfully accom- 
 plished, by making its progress go hand-in-hand with liberty.' — S. R. Gardiner, 
 Hist. Eng. i. 21. 
 
 2 Rymer, i. 822. 
 
 3 Flor. Wigorn, (Contin.) ii. 276. 
 ^ Rymer, i. 825. 
 
26o Origin of Parliament. [Ch. 
 
 common counsel and approval as by a general and ade- 
 quate grant of an aid. He accordingly, on the 30th of 
 September, summoned a Parliament to meet at West- 
 minster in the November following, so constituted as to 
 represent, and have the power to tax, the whole nation. 
 The summons to the bishops enters with unusual detail 
 into the causes which had rendered it necessary to call 
 Parliament together, and is prefaced by a citation from the 
 Code — quodomnes . . tangit ab omnibus comprobetur^ — which 
 happily expresses at once the theory of the earlier Anglo- 
 Saxon Constitution, and, as interpreted by the system 
 of representation, both the theory and the practice of the 
 English Constitution from the days of the ' greatest of the 
 Plantagenets ' to our own.^ In its beneficent influence 
 upon the development of Constitutionalism this maxim of 
 Roman law may be regarded as an antidote to its more 
 famous fellow-maxim, quod principi placuit legis habet 
 
 ^ Cod. v., lix., 5. It occurs also in the Canon Law, but in a part {Sexta 
 pars Decretal, de Regulis juris ^ c. 30) unpublished in 1295. But it seems to 
 have been familiarly known in England ; cfs Matt. Paris (anno 1251), p. 815 : 
 'quod enim omnes angit et tangit ab omnibus debet trutinari ;' and the Vita 
 Edwardi II. (ed. Hearne), p. iii. Stubbs, Const. Hist. ii. 128. 
 
 2 The whole preamble of the writs to the archbishops and bishops is re- 
 markable. * Sicut lex justissima, provida circnmspectione sacrorum principum 
 stabilitata, hortatur et statuit ut quod omncs tangit ab onwibiis apfrobetiir^ sic et 
 nimis evid enter ut communibus periculis per remedia provisa communiter 
 obvietur. Sane satis noscis et jam est, ut credimus, per univeri?a mundi 
 climata divulgatum, qualiter rex Franciae de terra nostra Vasconiae nos 
 fraudulenter et cautelose decepit, earn nobis nequiter detinendo. Nunc vero 
 praedictis fraude et nequitia non contentus, ad expugnationem regni nostri 
 classe maxima et bellatorum copiosa muhitudine congregatis, cum quibus 
 regnum nostrum et regni ejusdem incolas hostiliter jam invasit, linguam 
 Anglicam, si conceptae iniquitatis proposito detestabili potestas corrcspondeat, 
 quod Deus avertat, omnino de terra delere proponat. Quia igitur prat visa 
 jacula minus laedunt, et res vestra maxime, sicut ceterorum regni ejusdem con- 
 civium, agitur in hac parte, vobis mandamus,' &c. The preaml>le of the 
 writs to the lay baronage is more concise : ' Quia super remediis contra pericula 
 quae toti regno nostro hiis diebus imminent providendum vobiscum et cum 
 ceteris regni nostri proceribus habere volumus colloquium et tractatum.' The 
 writs to the sherifis are very similar : * Quia cum comitibus, baronibus et 
 ceteris proceribus regni nostri, super remediis contra pericula quae eidem regno 
 hiis diebus imminent providendum, colloquium habere volumus et tractaium.* 
 The elected knights, citizens, and burgesses are directed to attend * pltiiam et 
 sufficientem potestatem pro se et communitate comitatus, civitatum et burgorum 
 praedictorum divisim ab ipsis tunc ibidem habcntes . . . iia quod pro def«. ctu 
 hujusmodi potestatis negotium praedictum infectum non remaneat quoquo 
 modo.' — Rep. on Dignity of a Peer, App. i. 66, 67. 
 
VII.] Origin of Parliament. 261 
 
 vigorem, which, in the mouths of the mediaeval jurists, did 
 so much to build up the despotic power of the kingly- 
 office.^ 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 faciendum quod tunc de communi consilio 
 ordinabitur in praemissis. But together with the knights inferior 
 and burgesses, the whole inferior clergy, by their representa- seS ^in''^^' 
 tives under the praemunientes clause, were now for the first Parliament 
 time united with the assembled baronage in the national ^"^/J^;^/ 
 Parliament. In the writs addressed to the Archbishops nientes 
 
 clause. 
 
 of Canterbury and York, each was directed not only to 
 be present at the Parliament, but oXso premonished \.o cause 
 the prior [Dean] 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 representative 
 proctors.2 This great assembly, the most general which ;, 
 had ever yet been held, did not form a single body. The 
 aid was discussed and voted by each of the three bodies 
 separately. Each made a different 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 expressed in the maxim, * what touches all 
 should be approved by all,' that taxation could only be 
 legally imposed with the consent of the taxed. It was 
 
 ^ [The limitation of this maxim supplied by Gaius in the words following, 
 quia ipse f^er legem imperium necessity seems to be generally overlooked. — Ed.] 
 
 2 Ftport 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 Masters of the Temple and of Sempringham 
 and the Prior of the Hospital of St. John of Jerusalem, the prior [Dean] 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 Irom each 
 city or borough in every shire. 
 
262 
 
 Origin of Parliament, 
 
 [Ch. 
 
 The clergy 
 averse from 
 interfering 
 in secular 
 legislation. 
 
 Convoca- 
 tion. 
 
 The clergy 
 cease to 
 attend Par- 
 liament in 
 the 14th 
 century : 
 [in Scotland 
 only in 1 7th 
 cent. — Ed.] 
 
 But preserve 
 the power of 
 self-taxation 
 till 1664. 
 
 doubtless the intention of Edward's legal and systematic 
 mind to make the representatives of the clergy an effective 
 branch of a comprehensive national Parliament. But this 
 design was defeated by the action of the clergy themselves. 
 Averse, by the nature of their calling, from interfering in 
 the ordinary subjects of secular legislation, despising as 
 barbarous the system of Common Law, and desirous of 
 keeping 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, more- 
 over, had long possessed their own peculiar assembly or 
 Convocation which, earlier in the reign of Edward I., had 
 already been remodelled upon the representative basis.^ In 
 this assembly, sitting in two Provincial divisions, at London 
 and York, they preferred to grant their aids ; and, although 
 regularly summoned to Parliament, under the praemunientes 
 clause, their attendance was always reluctant and intermit- 
 tent, and in the Fourteenth century ceased altogether. But 
 whether in Convocation or in Parliament, * they certainly 
 formed a legislative council in ecclesiastical matters, by the 
 advice and consent of which alone, without that of the 
 Commons (I can say nothing as to the Lords), Edward III., 
 and even Richard II., enacted laws to bind the laity.' ^ 
 For two hundred years after they had ceased to attend 
 Parliament, 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,^ 
 
 1 See the series of summonses to Convocation, 1225- 1227, in Stubbs, Select 
 Chart. 442, and the Introductory Sketch, p. 38. 
 
 2 Hallam, Midd. Ages, iii. 137. The celebrated statute De Haeretico 
 ComburendOy 2 Hen. IV. c. 15, 1401, was enacted on the petition of the 
 clergy alone, and is expressed as being made by the consent of the Lords but 
 without mention of the Commons. 
 
 3 By 25 Hen. VJII., c. 19, Convocation was forbidden to [enact constitu- 
 tions or Canons] without the King's licence. — See [Rev. Statutes, i. 416]. 
 [On Convocation generally, see Joyce, England's Sacred Synods ; Burrows, 
 Parliament and the Ch. of Eng. ; Dixon, Hist, of Church of England; and 
 
VII.] Origin of Parliament. 263 
 
 the subsidies granted in Convocation were henceforward 
 always confirmed by Act of Parliament At length, in 
 1664, the practice of ecclesiastical taxation was discon- 
 tinued, 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 ecclesias- 
 tical freeholds, in the election of members of the House of 
 Commons.1 
 
 Thus, whilst theoretically the political constituents of the The clergy 
 nation are the King, and the three estates of the realm, the separate 
 Lords, the Clergy, and the Commons, practically 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. 
 
 Ever since the year 1295 (23rd Edward L) Parliaments Government 
 after the model of Simon de Montfort's famous assembly Lords and 
 have been regularly summoned in continuous, or all but Conimons 
 
 . rr^, . , , . r 1 T- 1- 1 established 
 
 continuous, succession. The essential basis of the English under 
 Constitution, government by King, Lords, and Commons, ^^^ard I. 
 may thus be said to have been definitely fixed in the reign 
 of the great Edward.^ To the same period we must also And the 
 
 right of 
 
 arbitrary 
 
 taxation 
 on the Reformation Settlement, Dibdin's Brewer's Reformation Settlement, surrendered. 
 —Ed.] 
 
 ^ The taxation of the clergy out of Convocation was termed [by Bp. Gibson] 
 * 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 Clarendon. — See Hallam, Const. Hist. iii. 240, 241. 
 
 2 ' 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 countrymen ready to rush headlong 
 
264 Origin of Parliament. [Ch. 
 
 assign the full and complete acknowledgment of the 
 
 most important — because the practical mainspring of every 
 
 other — power of Parliament. It was long before the King 
 
 Events lead- would Surrender the right of taking talliages without a 
 
 ^Conjrmafio parliamentary grant.^ In order to carry on his extensive 
 
 Chartarum. -yi^ars 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 
 
 Exactions endeavour to shelter themselves under the Bull of Boniface 
 
 cleJ^y.^^ VIII., Clericis laicos (24th of February, 1296), which 
 
 Bull Clericis absolutely forbade, under pain of excommunication, the 
 
 ^^^' payment to laymen of any tax whatever on the revenues 
 
 of the Church. The practical outlawry of the whole clerical 
 
 body (30th January, 1297), and the temporary confiscation 
 
 of the estates of the see of Canterbury (12th February, 
 
 1297), compelled the clergy to abandon their untenable 
 
 position,^ [and to yield /^r se^ ox per mediatores.'] 
 
 Exactions Whilst the clergy were exasperated by these violent 
 
 merchants, proceedings, the merchants were equally aggrieved by the 
 
 by seizure of heavy impositions placed on the export of their wool, 
 
 and the and by the actual seizure of the greater part of it, for 
 
 'maltolte. ^hi^h 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 
 
 Infractions tervae? The baronage also were irritated by the King's 
 
 Charta."^ open disregard of many of the provisions of the Great 
 
 Charter and the Charter of the Forest, both of which he 
 
 Foreign persistently refused to confirm. They had, moreover, a 
 service. 
 
 into civil war. When he died, he left England free as ever, but welded to- 
 gether 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. i6. 
 
 1 [Dowell, Hist, of Taxation^ i. 66, gives 1332 as the date of the last attempt 
 at a tallage. — Ed.] 
 
 * Ann. Trivet, p. 353, s. a. 1297. 
 
 ' Walt, de Hemingburgh, ii. 120, s. a. 1297. 
 
VII.] Origin of Parliament, 265 
 
 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.^ On the 24th of February 1297. 
 Edward held what was styled a ' Parliament,' but to which 
 only the lay baronage, without any clergy or representa- 
 tives of the Commons, was summoned. He here proposed 
 that the barons should go to Gascony, while he himself 
 proceeded to Flanders. On their refusal,^ he threatened 
 to take away their lands and give them to those who would 
 go. This led to a personal altercation with Roger Bigod, 
 Earl of Norfolk, the Marshal of England,^ which ended in 
 the breaking up of the assembly and the withdrawal of 
 the Marshal, and of Bohun, Earl of Hereford, the Con- 
 stable, who, supported by a large number of the mag- 
 nates and a force of 1500 cavalry, stopped the King's 
 officials from seizing the wool, hides, and other commo- 
 dities on their estates, and resolutely prepared for armed 
 resistance.* 
 
 On the 1 5th of May, Edward issued writs to the bishops, The Earls of 
 barons, and sheriffs for a general military levy of all the ^^^'^^q'JI 
 landholders of the kingdom whose lands were of ;^2o folk. 
 annual value and upwards, whether tenants in chief or 
 holding of mesne lords. They were to assemble in London 
 on the 7th of July, with horses and arms, ready to cross the 
 sea under the King's personal command.^ On the 7th the 
 
 * W. Rishanger, Chron. 175, s. a. 1297. [Petitiones Comniunitatis.'\ 
 
 2 Cf. the refusal of foreign service by St. Hugh of Lincoln in 1198 {supra^ 
 p. 103), and by the barons of King John {s3tp'>-a, p. iii). 
 
 3 The altercation is graphically described by Walter de Hemingburgh (ii. 121): 
 ' Comes etiam Herefordensis et comes marescallus excusaverunt se, dicentes 
 quod ofificia sua quaesibi jure haereditario competebant facerent libenter, eundo 
 cum ipso rege. Iterataque prece rogatus est comes marescallus ut iret. Et ait, 
 *' Libenter tecum vadam, O rex, praecedendo faciem tuam in acie prima, sicut 
 mihi competit haereditario jure." Et rex, " Et etiam sine me ibis cum aliis." 
 At ille, •' Non teneor, nee est meae voluntatis, O rex, sine te iter arripere." 
 Et iratus rex prorupit in haec verba, ut dicitur, " Per Deum, comes, aut 
 ibis aut pendel)is." Et ille, *' Per idem juramentum, O rex, nee ibo nee 
 pendebo." ' [This * Parlinmentum ' was held at Salisbury. — Ed.] 
 
 ^ Walt, de Hemingburgh, ii. 121-2. 
 
 * Pa'grave's Pari. Writs, i. 281, A preliminary writ to the sheriffs to summon 
 the landholders, but without specif) ing the intended vo}age beyond sea, was 
 issued on the 5th of May. Edward again applies the maxim ' quod omnestangit' 
 — * perpendentes quod istud negocium est tam grande et iia communitates omnes 
 
266 Origin of Parliament, [Ch. 
 
 force met ; the Constable and Marshal, when called upon 
 by the King, refused to perform tHe duties of their offices, 
 in taking the lists of the army, and at their own request 
 were superseded. The summons of the whole force of the 
 kingdom for the purpose of an aggressive foreign war was 
 such a violent straining of the military obligations, alike 
 of feudal tenants and national militia, that the two Earls 
 might well have based their refusal on the broad ground 
 of the unconstitutionality, if not of the illegality, of the 
 King's proceedings. They chose, however, to base their 
 refusal on what looks very like a bit of special pleading 
 as to the wording of the summons. Edward, distrustful 
 apparently of the legality of his position, had employed 
 the words affectuose reqtiirimus et rogainus, instead of 
 the usual imperative formula, in his summons to the earls 
 and barons, and the Constable and Marshal professed to 
 have regarded this as a mere informal invitation^ and not 
 a legal summons.^ Their answer had probably been deli- 
 berately determined upon as most appropriate in the cir- 
 cumstances ; for we know from Matthew of Westminster that 
 the Earls and Barons had been concerting their measures 
 in what he terms a Parliament of their own {parliamentum 
 suum) in the forest of Wyre in the Welsh march. In 
 dealing with a man of Edward's well-known legal affini- 
 ties, they might have thought it prudent in the coming 
 contest to cover themselves with the shield of technical 
 legality, while at the same time accentuating the fact, 
 which might otherwise have been overlooked, that the 
 King had not ventured to command what they alleged, 
 and he himself ultimately admitted, to be an illegal 
 requisition.^ Hallam's eulogium upon these two leaders 
 
 et singulos de dicto regno nostro tangit, quod in hoc nemini deferri potest.' In 
 the writs of the 1 5th the sheriffs are ordered to summon [the] archbishops, bishops, 
 abbots, priors, and other ecclesiastical persons, ' et etiam viduas et alias mulieres 
 qui de nobis tenent in capite per servicium militare vel per serjanciam vel de 
 wardiis in manu nostra existentibus quod habeant ad nos Londoniis totum 
 servicium suum debitum.' 
 
 1 Matt. Westm. p. 430 ; Stubbs, Const. Hist. ii. 135. 
 
 2 From Bartholomew de Cotton (Hist. Ang. p. 327) we learn that in the 
 
VII.] Origin of Parliament, 267 
 
 of the political party which forced from the King the 
 Confirmatio Ckartarum, may require some qualification. 
 They were probably 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 Arch- 
 bishop Winchelsey, that we owe the addition of ' another 
 pillar to our constitution not less important than the Great 
 Charter itself ^ In his extremity, Edward determined to 
 appeal to the people. Having made friends with the 
 Archbishop, and restored the confiscated lands of the see 
 of Canterbury, he proceeded, on the 14th of July, to make Edward's 
 a public harangue, standing upon a wooden stage erected th^people 
 in front of the great hall at Westminster, and accompanied 
 by his young son Edward (afterwards Prince of Wales), 
 together with the Archbishop and the Earl of Warwick. 
 With visible emotion {eriunpentibus lacrymis are the 
 words of the chronicler) he humbly asked forgiveness for 
 his past acts, admitting that he had not governed them so 
 well and peaceably as became a King ; but reminding them 
 that such small portions of their property as they had 
 given him, or as his servants without his knowledge had 
 extorted, had been accepted by him in order that by the 
 expenditure of a part the bulk might be possessed in 
 greater quietude, and that he might be enabled to over- 
 come the injurious attempts of enemies who were thirsting 
 for English blood. ' Behold,' he added, ' I am going to 
 expose myself to danger for your sakes ; I pray you, if I 
 return, receive me as you have me now, and I will restore 
 to you all that has been taken. But if I return not, crown 
 my son as your King.' - 
 
 The hearts of the people were touched by this politic 
 and affecting address ; and with uplifted hands they pro- 
 
 same year * concessit dominus rex omnibus qui debebant sibi servitium, et omni- 
 bus viginti libratas terrae habentibus, non teneri ire secum in Flandriam^ nisi 
 ad vadia et pro stipendiis dicti regis. ^ 
 
 ^ Hallam, Middle Ages, iii. 3. 
 
 2 Matt. Westm. p. 430. 
 
268 Origin of Parliament. [Ch. 
 
 mised fealty to the King. But Edward was still in want 
 of money : and the barons, when appealed to, insisted on 
 the various grievances of th6 nation, and demanded the 
 confirmation of the Charters. By promising to comply 
 with this demand the King ultimately, after many of the 
 barons had departed, induced an irregular assembly of 
 some of the barons and others who had attended the 
 military summons, to make an illegal grant of an ' eighth ' 
 from the barons and knights and a * fifth ' from the towns.^ 
 After a vain effort to negotiate with the absent Constable 
 and Marshal, Edward gave orders (July 30) for the collec- 
 tion of the eighth and fifth, and again directed the seizure 
 of all the wool of the kingdom, promising to pay for it as 
 soon as he was able.^ The clergy, who were still hampered 
 by the prohibitions of the Bull Clericis Laicos, expressed 
 (Aug. 10) their willingness to make a grant as soon as they 
 could obtain the Pope's permission, which they had good 
 hopes of getting.^ But the King, impatient at the delay, 
 directed the seizure of a third of their temporal goods.* 
 A few days previously he had issued a manifesto to the 
 people justifying his action in the dispute with the two 
 Earls, excusing his exactions as being necessary for the 
 defence of the nation, and promising to set all things right 
 on his return.^ Shortly afterwards, while the King was at 
 Winchclsea preparing to embark, messengers arrived from 
 the Earls and presented to him what, to anticipate the 
 A Grand Re language of a later age, may be termed a Grand Remon- 
 presented^tc strance in the name of the * archbishops, bishops, abbots 
 the King, and priors, earls and barons, and the whole community of 
 the land,' setting forth the evils of which they complained 
 
 1 Matt. Westm. p. 430. 
 
 2 Rot. Pari. i. 239 ; Barth. Cotton, Hist. Ang. 338. 
 
 3 Barth. Cotton, Hist. Ang. 327, 335. 
 
 ^ Palgravc's Pari. Writs, i. 396. All articles dedicated to spiritual purposes 
 were excepted, and clerks whose benefices were under 5 marks in value were 
 exempt. Lay fees of the clergy, not appurtenant to thtir churches, were to be 
 taxed with those of the laity : but ihey might be quit of the whole by payment 
 of a fifth of their goods temporal and spiritual. 
 
 ^ Rymer, i. 372 ; Stubbs, Const. Hist. ii. 137. 
 
VII.] Origin of Parliafuent. 269 
 
 and demandinp- redress, (i) In the first place, they said, f^^^^'"*^^' . 
 it seems to the whole community of the land that vcv^ petierunt 
 summons made to them by the King's writ was not suffi- '^^'^"fj^,-. 
 cient, because it did not mention any certain place to tatis. ^ 
 which they were to go ; yet it was on the place that the burgh^fi 
 nature of the outfit and requisite amount of money de- 121.— Ed.] 
 pended. But whether they were bound to serve or not, it 
 was commonly said that their lord wishes to cross the sea 
 to Flanders, and it seems to them that there they are not 
 bound to perform any service whatever ; for neither they 
 nor their predecessors or ancestors ever served in that 
 land. Even if they were bound to serve there or else- 
 where, yet they have not the necessary means ; so afflicted 
 are they by divers talliages, aids, and prises (to wit, of 
 corn, oats, malt, wool, hides, oxen, kine, salt meat), exacted 
 without payment of a single penny by which they might 
 sustain themselves. (2) Further, they say they are unable 
 to grant an aid, because of their poverty arising from the 
 aforesaid talliages and prises ; for they have hardly where- 
 withal to support themselves, et multi sunt gin millam [Rishanger, 
 stistentationem habent, nee terras suas colere posstmt. (3) '^^■■' 
 They are not dealt with {tractantur) according to the laws 
 and customs of the land as their ancestors were wont to be 
 dealt with, nor have they the liberties which they were 
 wont to have, but are arbitrarily refused them : for they 
 were wont to be dealt with in accordance with Magna 
 Charta, but now all its provisions are disregarded to the 
 exceeding damage of the whole people. Wherefore they 
 beseech their lord the King to correct these things, both 
 for his own honour and the salvation of his people. (4) 
 Moreover, the Community of the land feels itself sorely 
 aggrieved by the Assize of the Forest, which is not kept 
 as formerly ; neither is the Charter of the Forest observed, 
 but attachments are made at will, beyond the jurisdiction, 
 contrary to custom. (5) The tax on wool is too heavy, 
 namely 40i-. on each sack, and of broken wool 7 marks, 
 [ = ;^4 I3J-. 4<ar.] per sack ; for the wool of England amounts 
 to the value of half the whole land, and the tax paid on it 
 
270 Origin of Parliament. [Ch. 
 
 to a fifth part of the value of the whole land. (6) Lastly, 
 the Community wishing-, as it ought to wish, honour and 
 safety to the King, considers it not for the King's good 
 that he should go into Flanders unless he have further 
 assurance as regards the Flemings, both for himself and 
 his people ; and further, on account of Scotland, which is 
 already beginning to rebel now that he is going, and will 
 assuredly do worse when they know that he has crossed 
 the sea. Nor is it Scotland only that has to be con- 
 sidered : there are other lands also which are not yet duly 
 secured.^ 
 
 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 while the other part 
 was in London.^ A few days afterwards (Aug. 22), he 
 himself proceeded to Ghent, leaving his son, Edward, Prince 
 of Wales, as Regent. As soon as the King had departed, 
 the Earls seized the opportunity to press their demands. 
 Entering the Exchequer they peremptorily forbade the 
 Barons there to levy the aid, the grant of which they 
 asserted had been illegally obtained, until the Charters 
 had been confirmed. Supported by a large military fol- 
 lowing, and backed up by the citizens of London, they 
 were masters of the situation, and the young Prince and 
 The statute j^jg Council found it necessary to yield. The Confirmatio 
 Ckartaruffi, Chartannn? which, although a statute, is drawn up in the 
 0^.^29?^ form of a charter, was passed on the loth of October, 1297, 
 in a Parliament at which knights of the shire attended as 
 representatives of the commons, as well as the lay and 
 clerical baronage. It was immediately sent over to King 
 Edward at Ghent, and there confirmed by him on the 5th 
 of November following.* The former grant of an eighth 
 
 1 Rishanger, Chron. I75-^- \.^'<^' 1297.] 
 
 2 Ibid. 
 
 3 25 Ed. I. St. I, c. 6. 
 
 ^ In 129S, 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, 1299, but wth a comprehensive proviso, as to the forests, saving the 
 
VII.] Origin of Parliament, 271 
 
 and a fifth was treated as invalid, and a fresh grant of a 
 ninth was substituted.^ The Constitutional opposition had 
 now been completely successful. The Confirmatio Char- 
 tarum was not merely a reissue of Magna Charta and the 
 Charter of the Forest, with special provisions for their 
 distribution throughout the realm and annual publication, 
 but the enactment of a series of new provisions intended 
 to deprive the Crown in the future of its assumed right of 
 arbitrary taxation. 
 
 By the 5th 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 hence- 
 forth will we take such manner of aids, tasks, nor prises, 
 but by the common consent 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.' ^ 
 
 The saving words in this statute would appear to have 
 
 rights of the crown ('salvis semper juramento nostro, jure coronae nostrae, 
 et rationibus nostris atque calumpniis ac omnium 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, 
 1 301, in return for a subsidy of a ' fifteenth.' Notwithstanding this, Edward 
 secretly sought and obtained, in 1305, from Pope Clement V. an absolution 
 from the observance of the Confirmation of the Charters ; but to his credit 
 be it said, the absolution, except as to the Forest articles, was never acted 
 upon. 
 
 » Palgrave's Pari. Writs, i. 63. 
 
 2 Statutes of the Realm, i. 124. 
 
272 
 
 07dgin of Parliamejit. 
 
 [Cii. vir. 
 
 non Conce 
 
 detido. 
 
 [1297.] 
 
 preserved to the King the ancient custom on wool (as 
 distinguished from the * evil toll ')"; and even the le^al right 
 of talliaging the towns and Royal demesne, a right which 
 DeTallagio he exercised in 1304.^ 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 Co7icedendo. 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 prin- 
 ciple which, from the time of the Confirmation of the 
 Charters, has been universally received.' ^ The exclusive 
 right of Parliament to impose taxation, though often 
 infringed by the illegal exercise of prerogative, became 
 from this time an axiom of the Constitution. 
 
 ^ See the king's writ in Rot, Pari., i. 266. There was also an * ancient 
 prise ' of wines imported, — a duty of two tons from every vessel. 
 
 2 Freeman, Growth of English Constitution, [195]. 
 
 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 de.:ided to be a statute by the Judges : but there is 
 now no doubt that originally it was a mere ' abstract, imperfect and unauthori- 
 tative, 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 nostros de cetero in 
 regno nostro imponatur seu levetur, sine voluntate et assensu communi archie- 
 piscoporum, episcoporum et aliorum praelatorum, comitum, baronum, militum, 
 burgensium, et aliorum hominum in regno nostro.' 
 
 [Dowell, Hist, of Taxilion, i. 66, gives the following account of the last 
 attempt, made by Edward III. in 1332, at obtaining tallage without consent 
 of Parliament. ' On obtaining the grant of a fifteenth and a tenth from Parlia- 
 ment, Edward recalled the Commissions for tallage, and promised in future 
 not to ciuse tallage to be assessed in any other manner than had been the 
 practice in the time of his ancestors, and as he might of right.' Tallage now, 
 says Dowell, fell into disuse. 
 
 With regard to the Aid pur Jille marier, taken by Edw. I. 1290 {supray 
 p. 256), fresh information has been printed, Env. f/ist. Rev., April, 1890, 
 from the Archives of Aragon, Jaime I., Parcht. No. 1173, ^7 M^r. F. Darwin 
 Swift, in the text of the Treaty of Alliance by Marriage between the Infante 
 D. Pedro of Aragon, for his son, Alfonso (III., ob. 1291), and the ^Jilia 
 pHniogenita'' of Edw. I., dated, 'vii. Id. Oct.' 1273, 'in villa Sordue .... 
 Testt., Ausitanense Archiep. [Auch, Primate of Aquitaine. — Ed.] .... Ep. 
 Lectorense [Lectoure, nr. Auch. — Ei).]. Ethivarde de Chabhenays comite 
 Bigorre, .... Rogero de Clifford, Johanne de Boun, niilitibus. et Antonio 
 Bekcltrico .... dom. Regis.' The date of this Treaty seems to make it certain 
 that Joan \b. 1272, Con'. Floi: Wi^.^ was not, and almost certain that 
 Eleanor was, the eldest daughter of Edw. I., and to place Eleanor's birth, 
 most probably, as Ann. of Eng., in 1264. — Ei).] 
 
273 
 
 CHAPTER VIII. 
 
 GROWTH OF PARLIAMENT. 
 (1295— 1399.) 
 
 23 EDWARD I. ; EDWARD II. ; EDWARD III. J RICHARD II. 
 
 We have seen that under Edward I. the Commune The 1^2^- 
 Concilium Regni, which for a time, after the Norman n°enf gm-^^^' 
 Conquest, had been absorbed into the feudal Ctiria Regis, dually wins 
 again emerged as a really national Parliament, in which all active con- 
 the political elements of the nation were present either in ^''°^ °J^^ ^\ 
 
 . ^ 1 . . ^"^ affairs of 
 
 person or by representation. But although complete m its the nation. 
 representative character, Parliament 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 reahty acquired and exercised, through the medium of 
 his Continual or Ordinary Council, 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 Witenagemot always, and even the feudal Great 
 Councils at times, had undoubtedly exercised.^ 
 
 * The comprehensive functions of the Witan have already been discussed, 
 supra, pp. 33-38. Dr. Freeman (Norm. Conq. ii. 90) cites an instance of a 
 C.H. T 
 
274 Growth of Parliament. [Ch. 
 
 Parliament Xhe exact date of the division of Parliament into two 
 
 •divided into 
 
 two Houses. Houses is not quite clear, but it was completely effected 
 before the middle of the fourteenth century.^ It must be 
 
 debate in the Witenagemot under Edward the Confessor, on a question of war 
 or peace. In 1242, Henry IH. 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 ' responde- 
 runt eidem domino regi praecise quod nullum ad praesens ei facerent aux- 
 ilium. ' An early instance of control by the national council over the public ex- 
 penditure 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. 
 
 [Guizot, Hist, du Gouv. Rep. ii. 318, points out that the representative 
 system, when established in its fulness, brought back the English Parliament 
 to its original position. ' Le Parlement est redevenu le grand conseil national 
 ou sont debattus et regies tous les interets nationaux.' — Ed.] 
 
 1 The first mention in the Rolls of Parliament of a separate session occurs 
 in 1332 (Rot. Pari. ii. 66), From 1339 the division may be regarded as per- 
 manent. In 1352 the Chapter House of Westminster Abbey was the Chamber 
 of the Commons. (Rot. Pari. ii. 237; Stubbs, Const. Hist. iii. 429, 430.) 
 The advantages of the ' Bi-cameral system ' as a guarantee for orderly and per- 
 manent government have been forcibly stated by the American writers, Kent, 
 Story, 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 interference in secular legislation that pre- 
 vented us from having, as was generally the case in continental constitutions, 
 three houses of Nobles, Clergy, and Commons. — {Supra, pp. 262, 263.) 
 Stubbs (Const. Hist. ii. 189) points out that there was even at one time a 
 possibility that the lawyers and the merchants might have been grouped in 
 separate sub-estates. [Mr. Sheldon Amos, Science of Politics (Int. Sc. Series), 
 1883, pp. 236-46, discusses the various aspects of the question of ' the superior 
 advisability of having one or more chambers, ' summing up in favour of ' one 
 broadly representative Chamber,' as best ensuring alike ' effective representa- 
 tion, harmonious co-operation, timely concession, apt adjustment, and habitual 
 preference of the more pressing to the less pressing claim. ' On the other hand, 
 a recent writer in the Quarterly Review, No. 316, for October, 1884, in an article 
 on the Nature of Democracies, forecasting the drift of the political situation in 
 our country in the direction of a single Chamber, sees nothing but danger in 
 the prospect. * We are drifting,' the Article concludes, p. 332, 'towards a 
 type of government associated with terrible events — a Single Assembly, armed 
 with full powers over the Constitution, which it may exercise at pleasure. It 
 will be a theoretically all-powerful Convention, governed by a practically all- 
 powerful Secret Committee of Public Safety, but kept from complete submis- 
 sion to its authority by Obstruction, for which its rulers are always seeking to 
 find a remedy in some kind of moral guillotine.' This seems to be an extreme 
 view, expressed in rather extreme language. But, on the assumption that there 
 are those who seek such a change, there is no denying the truth of the calmer 
 statement in another Article in the same number of the Quarterly, p. 592, on 
 
^iii.] Growth of Pa7diament, 275 
 
 borne in mind that the Commons consisted of two elements, Two ele- 
 the knights of the shire and the burgesses. The knights Commons, ^ 
 belonged socially to the same class as the barons, and had, J^"ights and 
 
 . . ' ' burgesses. 
 
 moreover, origmally possessed an equal right with them to 
 attend in person. On the introduction of County represen- The knights 
 tation the knights of the shire, although elected not merely f;* ^^^""/^^j 
 by the immediate tenants of the King, but by all the free- voted with 
 holders of the county, naturally continued to sit, deliberate, apa^^rom' 
 and vote with the greater barons.^ But the representatives the bur- 
 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 (i) 
 the earls, barons, and knights, (2) the clergy, and (3) the 
 citizens and burgesses.^ There is reason to believe that 
 the knights, even while still voting apart, occasionally 
 joined with the burgesses in petitions. In the 8th of 
 
 the House of Lords and the Government^ that * to dispense with a Second 
 Chamber, to vest unlimited, unquaUfied, indisputable, unquestionable power in 
 a single Assembly is a revolution ; a revolution far more complete and search- 
 ing than the expulsion of a dynasty or the reconstitution of the Third Estate.' 
 Whether such a Revolution is or is not imminent is another question. — Ed.] 
 
 ^ [It would have been more satisfactory if authority had been cited for this 
 statement, and also for the application of the epithet 'distinct assembly,' where 
 * estate ' would seem a more accurate description of the position of the burgesses. 
 Perhaps both statements may be considered to be in the nature of a suggestion. 
 The separation is said to have originated circa 1289, though not completely 
 carried out till the middle of the 14th century. To this effect, Clifford, Hist. 
 Priv. Bill LegisL, vol. i, 275, where it is admitted that the period of the 
 separation 'cannot be fixed with precision.' — Ed.] 
 
 2 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 Ed- 
 ward III. (1333) the rates were for the barons and knights and the clergy a 
 fifteenth, for the burgesses a tenth ; but on this occasion the knights and bur- 
 gesses deliberated, although they did not vote, in common. In 1345 the 
 knights granted two fifteenths, the burgesses one fifth, while the lords promised 
 to follow the king in person and granted nothing. — Pari. Hist. i. 206 ; Rot. 
 Pari. ii. 66. 
 
276 
 
 Growth of Parliament, 
 
 [Ch. 
 
 quer 
 this 
 
 Edward II. (1315) *the Commons of England [in another 
 part of the record they are termeci * le poeple '] complain to- 
 our lord 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 (voz liges gentz . . . pur tote la 
 Com[m]une, les gentz de la Com[m]une de vostre Roialme).^ 
 At length, in 1347, we find the Commons, without distinc- 
 tion, granting two-fifteenths from the cities, boroughs. 
 Union of ancient demesnes of the Crown, and the counties. The 
 burgesses^in complete fusion of the two elements of the Lower House 
 one House, jnto One assembly, — the result of one of those unions of 
 con^e-^^"^ happy accident and practical wisdom, to which the English 
 juences of Constitution owes so much — was fraught with the most 
 ""^°"' important consequences. The knights, who represented 
 the landed property of the country, gave to the House of 
 Commons, from the first, stability, weight, and permanence, 
 and obtained for it a respect which the citizens and bur- 
 gesses alone could not have commanded, in a country so 
 permeated with feudal ideas as England then was. With- 
 out the knights of the shire the burgesses would have been 
 mere deputies to consent to taxation and advise on matters 
 of trade ; united with them on equal terms, they were 
 enabled at once to claim a voice in the government of the 
 nation, and to defend the liberties of the people against 
 • both King and nobles.^ The commingling of the knights 
 and burgesses in a single House was rendered possible by 
 the existence in the English Constitution of a peculiarity 
 which most prominently and honourably distinguished it 
 from nearly every kindred Constitution in Europe, — the 
 
 1 Rot. Pari. i. 430. 
 
 ' *Cest 1^,' remarks M. Guizot, * le grand fait qui a decide la destinee poli- 
 tique de I'Angleterre. A eux seuls, les deputes des bourgs n'auraient jamais 
 eu assez d'importance, assez de force pour former une Chambre des Communes 
 capable de resister tantot au roi, tantot aux hauts barons, et de conquerir, sur 
 les affaires publiques, une influence toujours croissante. Mais I'aristocratie ou 
 plutot la nation feodale s'etant coupee en deux, et la nation nouvelle qui se 
 formait dans les villes s'etant fondue avec les franctenanciers des comtes, de 
 14 sortit une Chambre des Communes imposante et necessaire. II y eut un 
 grand corps de nation independant et du roi et des grands seigneurs. ' — Hist, 
 du Gouvern. Rep. ii. 276. 
 
VIII.] Growth of Parliament. 277 
 
 absence of an exclusive noble caste. In most of the Con- ^ nobility, 
 
 , but no noble 
 
 tinental states the nobles formed a distinct class, distin- caste in 
 guished, by privileges inherent in their blood, from ordinary ^^g^^"<^- 
 freemen, and transmitting their privileges, and in some 
 countries their titles also, to all their descendants in per- 
 petuity. The words 'nobleman' and 'gentleman' were 
 strictly synonymous ; the Estate of the Nobles (wherever 
 the system of estates obtained), represented in the National 
 Assembly not only the high nobility, but the class who In 
 England formed the ' landed gentry,' and the Commons, 
 the Tiers Etat, consisted almost exclusively of citizens 
 and burgesses. In England, on the contrary, the privileges 
 of nobility have always, except perhaps in the days of the 
 ancient Eorlas} been confined to one only of the family at 
 a time, the actual possessor of the peerage. The sons of 
 peers are commoners, and on a perfect equality, as regards 
 legal and political privileges, with the humblest citizen. 
 Even the eldest son, the heir to the peerage, though he 
 may bear a title by courtesy, is still, so long as his father 
 lives, a commoner like his younger brothers.^ No restraint 
 seems ever to have lain upon the free intermarriage of all 
 ranks.^ The highest offices of the state were always legally 
 
 ' [There is a certain vagueness about this suggestion. The alleged privilege 
 in the members of the family of an Earl seems, as far as the author's meaning 
 is clear, to have been rather a statement of the genealogical fact that a given 
 man was of Earl kind, i.e.^ of the kin of an Earl, than a privilege, and it is 
 believed that it was of Scandinavian importation. — Ed.] 
 
 ^ ' As the Law of England knows no classes of men except peers and com- 
 moners, it follows that the younger children of the King — the eldest is born 
 Duke of Cornwall — are, in strictness of speech, commoners, unless they are 
 personally raised to the peerage. I am not aware that either case has ever 
 arisen, but I conceive that there is nothing to hinder a King's son, not being a 
 peer, from voting at an election, or from being chosen to the House of 
 Commons, and I conceive that, if he committed a crime, he would be tried by 
 a jury.' — Freeman, Growth of Eng. Const. [93, 195]. 
 
 •* ' It was regarded as no disparagement for the daughter of a Duke, nay, of 
 a royal Duke, to espouse a distinguished commoner. Thus Sir John Howard 
 married the daughter of Thomas Mowbray, Duke of Norfolk, Sir Richard 
 Pole married the Countess of Salisbury, daughter of George, Duke of Clarence. 
 "Good blood was indeed held in high respect ; but between good blood and the 
 privileges of peerage, there was, most fortunately for our country, no necessary 
 connexion. There was therefore here no line like that which in some other 
 .countries divided the patrician from the plebian. Our democracy was, from 
 an early period, the most aristocratic, and our aristocracy the most democratic 
 in the world.' Macaulay, Hist. Eng. i. 30, 31. An earlier instance is the 
 
278 
 
 Growth of Parliament, 
 
 rcH. 
 
 Civil 
 
 equality of 
 all ranks 
 below the 
 peerage. 
 
 open to all freemen. All ranks, rooreover, have at all times 
 borne a share of the public burthens without claiming any 
 of those unjust exemptions from taxation which the Conti- 
 nental noblesse habitually enjoyed. 
 
 Few things are more important in our early Constitution,. 
 or have exercised a more potent and beneficial influence 
 upon the political and social condition of the people, than 
 this civil equality of all ranks below the peerage. Had it 
 been otherwise, the House of Commons could scarcely 
 have become what it is at the present day. ' The knight 
 of the shire was the connecting link between the baron and 
 the shopkeeper. On the same benches on which sat the 
 goldsmiths, drapers, and grocers, who had been returned to- 
 Parliament by the commercial towns, sat also members 
 who, in any other country, would have been called noble- 
 men, hereditary lords of manors, entitled to hold courts and 
 to bear coat armour, and able to trace back an honourable 
 descent through many generations. Some of them were 
 younger sons and brothers of great lords. Others could 
 boast even of royal blood. At length an eldest son of the 
 Earl of Bedford, called in courtesy by the second title of 
 his father, offered himself as a candidate for a seat in the 
 House of Commons,^ and his example was followed by 
 others.' ^ In this way the House of Commons has at 
 length come to represent not any single order in the State,, 
 but, with the exception of the actual members of the 
 House of Lords, the whole nation ; and, as a natural con- 
 
 marriage in 1296 of Joan of Acre, daughter of Edward I. and widow of Gil- 
 bert de Clare, Earl of Gloucester, {sup. p. 256, n. i) to Ralph de Monthermer, 
 a handsome but needy knight ( ' quemdam militem, elegantem forma, sed 
 tenuem substantia '). The anonymous author of the ' Opus Chronicorum *■ 
 [Trokelowe et Anon. Chr. et Anfi., Rolls ed. p. 27] represents her as defending 
 the alHance by saying : * Non est ignominiosum neque probrosum magno Comiti, 
 et potenti, pauperculam mulierem, et tenuem, sibi legitimo matrimonio copulare ; 
 sic vice versa, nee Comitissai non est reprehensible nee difficile, juvenem stre- 
 nuum promovere.' * Placuit responsio ejus,' adds the chronicler, 'DominO' 
 Regi, et sic sopita est indignatio ejus et optimatum.' 
 
 ^ ' It was decided by votes of Parliament, both in the reign of Henry VIII. 
 and in that of Elizabeth, that the eldest son of the Earl of Bedford was 
 entitled to sit in the House of Commons.' — Earl Russell, Eng. Gov. and 
 Const. II. 
 
 ^ Macaulay, Hist. Eng. i. 38. 
 
VIII. ] Growth of Parliament, 279 
 
 sequence, has drawn to itself * the predominant authority in 
 the state.' 1 
 
 But the growth of the powers of the Commons has been Gradual 
 very gradual. At first the burgesses deferred to their aris- fhe powers 
 tocratic associates the knights of the shire, and these natur- of the 
 ally followed the lead of the barons. 
 
 Under Edward II., jealousy of the successive favourites, Edward II. 
 Gaveston and the Spencers, threw the baronage into ^3°7-i327. 
 chronic opposition to the King ; and on two occasions, in 
 1 3 12 and again in 1321, drove them into open revolt. The 
 ultimate deposition of the King was also mainly the work 
 of the Barons acting in concert with the Queen. But it is 
 noteworthy that in all these proceedings the sanction of 
 Parliament was always regarded as necessary to legalise 
 them ; and the Commons, while acting in subservience to 
 the Lords, were in reality gradually consolidating their 
 own power. The appointment ^ of the ' Lords Ordainers ' The Lords 
 
 Ordainers, 
 
 * May, Const. Hist. ii. 83 : see also Freeman, Growth of Eng. Const. 96. 
 
 The difference between the House of Commons as representing * the whole 
 community of England ' and the House of Lords as representing only them- 
 selves, is strongly insisted upon by the writer of the ' Modus Tenendi Parlia- 
 mentum.' The date of this treatise is uncertain, but it * is found in manuscripts 
 of the 14th century, and is shown by contemporary writs and records to be a 
 fairly credible account of the state of Parliament under Edward II.' (Stubbs, 
 Select Chart. 492-502.) Under the heading ' De Auxilio Regis,' the writer 
 says, ' et ideo oportet quod omnia quae affirmari vel infirmari, concedi vel 
 negari, vel fieri debent per parliamentum, per communitatem parliamenti con- 
 cedi debent, quae est ex tribus gradibus sive generibus parliamenti, scilicet ex 
 procuratoribus cleri, militibus comitatuum, civibus et burgensibus, qui reprae- 
 sentant totam com?nunitatem Angliae^ et non de magnatibus^ quia quilibet 
 eorujn est pro sua propria persona ad parliamentum et pro nulla alia.^ — Mod. 
 Tenend. Pari. (ed. Hardy) [Sel. Ch. 502]. 
 
 2 Bp. Stubbs (Const. Hist. ii. 327 [n. 2] ) says * Hallam was mistaken in 
 supposing that the Commons co-operated ' in the appointment. The details 
 of the election of the Ordainers as given in Hemingburgh, ii. 276, and the 
 [Vit. Edw.] Mon. Malmesb. 104, contain, indeed, no reference to the Com- 
 mons, nor are they mentioned in the King's commission for the election as 
 it appears in Rot. Pari. (Append.) i. 445, and Rymer, ii. 105. Writs of sum- 
 mons to the * Parliament ' which exacted this temporary supersession of the 
 Royal authority are extant addressed to the Barons, but not to the Commons 
 (Palgrave's Pari. Writs, II. i. 40, 41). The assembly was in fact a Great 
 Council attended by the baronage in arms. Yet in Rot. Pari. i. 281 the Com- 
 mons are distinctly stated to have been included in the Commission, which is 
 declared to have been granted ' de nostre fraunche volunte par noz lettres 
 overtes as Prelatz, Countes, et Barons, et Comunes de dit Roiaume, q'il puissent 
 eslire certaines persones des Prelatz, Countes et Barons ; ' and in the preamble 
 to the Ordinances, the Ordainers themselves, ' elected by virtue of the said 
 
28o Growth of Parliament. [Ch. 
 
 (twenty-one in number), in 1310, like the previous appoint- 
 ment of similar committees in ^the reigns of John and 
 Henry III., and of the subsequent commissions of reform 
 under Richard II., was an extraordinary and revolutionary 
 remedy to meet exceptional circumstances. At the time 
 when kings governed as well as reigned their personal 
 character was of the utmost importance. The practical 
 effect to the nation was much the same whether the King 
 was wicked or only weak. When, from either cause, mis- 
 government reached a certain pitch of intensity, an attempt 
 appears to have been made to reconcile the continuance of 
 the King upon his throne with the enjoyment of good 
 government by the people, by temporarily putting into 
 commission, as it were, the powers of the Kingship. In 
 Edward II.'s case, it was doubtless the personal jealousy 
 of the barons against Gaveston and the King's other 
 favourites, quite as much as a desire for the public weal, 
 Articles of which actuated the Ordainers. Yet most of their compre- 
 [ifiZf hensive Articles of Reform, by which remedies were pro- 
 vided for the old and undoubted grievances of the nation, 
 were highly beneficial ; and others, which trenched on the 
 prerogative of the Crown, were in many cases but anticipa- 
 tions of that direct Parliamentary control over the appoint- 
 ment of the King's Ministers, and the action of the Execu- 
 tive, which was subsequently attained for a time, and 
 which is now exercised by Parliament indirectly. Among 
 the Articles of this nature may be noted : (ix.) That the 
 King should not leave the kingdom, or levy war, without 
 the consent of the baronage in Parliament ; and in the case 
 of his absence with such consent, a guardian of the realm 
 should be chosen by the common assent of the baronage in 
 
 Commission,' recite that it had been granted by the King ' as Prelatz, Countes 
 et Barons, tt as autres hones gentz de son Roiaume.^ (Rot. Pari. i. 281). The 
 assertion on the Parliament Roll of the co-operation of the Commons has, 
 under the circumstances, a peculiar significance. The Constitutional right of 
 the Commons to participate, on the principle quod omnes tangit^ is tacitly 
 admitted ; and the value attached to such participation by the Ordainers is 
 indicated by their assumption of it, whether based upon fact or not. 
 
VIII.] Growth of Pm'liament. 281 
 
 Parliament; (xiv.) That the Chancellor, two Chief Justices, 
 Treasurer, and other great officers of the Crown should be 
 chosen by the counsel and assent of the barons in Parlia- 
 ment ; and (xxix.) That to prevent delay in the admin- 
 istration of justice, Parliaments should be holden once 
 in every year, or twice if need be, and in convenient 
 places.^ 
 
 So early in this reign as 1309, the Commons manifested 
 a knowledge of their power and rights by granting a sub- Constitu- 
 sidy ' tipon this condition that the king should take advice oTa^sub^s^dy. 
 and grant redress upon certain Articles, in which their 
 grievances were set forth.' ^ Their right to concur in legis- Right of 
 
 Commons to 
 
 ^ Rot. Pari. i. 281. The Ordinances were annulled by st. 15 Edw. II. 
 (1322), but several of the most popular were re-issued by the King in a Royal 
 Ordinance. Ibid, 456. 
 
 2 These Articles, eleven in number, present a concise summary of the griev- Summary of 
 ances — arising in many cases from distinct violations of the existing law — by Grievances in 
 which the nation had been morejor less oppressed under all the successors of ^^qq. 
 Henry of Anjou, which the Lords Ordainers endeavoured to redress in 131 1, 
 but which continued for at least another century to form the burthen of the 
 complaints of the Commons in Parliament. (See Hallam, M. A. iii. 40.) 
 They are to the following effect : — ' Les bones gentz du roialme qi sont cy venuz 
 au Parlement,' after a general prayer for the .observance of the Great Charter, 
 and that the oppressions of ' those who call themselves the King's servants ' 
 may be restrained, specifically complain : i. That the King's purveyors seize 
 great quantities of corn, malt, meat, and other provisions, without any pay- 
 ment, not even by tallies. 2. That new customs are exacted on wine, cloth, and 
 other imports whereby the price to the people is enhanced. 3. That the cur- 
 rent coin is accepted by traders at only half its nominal value, notwithstanding 
 the King's proclamation to the contrary. 4, 5. That the Steward and Marshal 
 illegally enlarge their jurisdiction beyond measure, to the oppression and im- 
 poverishment of the people. 6. That the Commons find no one to receive 
 petitions in Parliament, as in the time of the King's father. 7. That the col- 
 lectors of the King's dues (pernours de prises) at fairs and in cities take prises 
 of commodities in excess of the King's needs, and barter away the surplus for 
 their own advantage. 8. That men are delayed in their actions at law by 
 writs of protection. 9. That felons escape punishment by too easily procuring 
 charters of pardon so that those who have indicted them are afraid to stay in 
 their own districts, and many forbare, on this account, from prosecuting. 10. 
 That the constables of the King's castles take cognizance of common pleas. 
 II. That the King's escheators oust men of lands held in capite^ by them 
 and their ancestors from time immemorial, under pretence of an inquest of 
 office, without summoning them before the King's Court. Edward accepted all 
 the articles unreservedly, except the second, which had reference to the new 
 customs of 2s. on the ton of wine, is. on the piece of foreign cloth, and 3*^. on 
 the pound avoir-du-pois of other merchandise, originally conceded to Edward I. 
 by the foreign merchants in 1303. As to this the King, at the request of the 
 people, granted that the * little custom ' should be taken off until it should 
 appear whether any advantage would accrue to him and his people thereby, 
 and afterwards he would take counsel thereon. The ' ancient prises and cus- 
 
282 
 
 Growth of Parliament. 
 
 [Ch. 
 
 concur m 
 legislation. 
 
 Edward III. 
 1327-1377. 
 
 Regularity 
 of meeting 
 of Parlia- 
 ment. 
 
 Annual 
 Parliaments, 
 
 lation was affirmed in 1322, by the Act which repealed the 
 Ordinances made by the Lords Ordainers in the 5th year of 
 Edw. 11.^ It was declared that 'the matters which are ta 
 be established for the estate of our lord the King and of 
 his heirs, and for the estate of the realm and of the people, 
 shall be treated, accorded, and established in Parliaments 
 by our lord the King, and by the assent of prelates, earls,, 
 and barons, and the commonalty of the realm, according as 
 it hath been heretofore accustomed.' ^ 
 
 Under Edward III. the Barons, instead of opposing the 
 King, rallied round the throne, and the Commons, ceasing 
 to be mere auxiliaries of the Lords, became the chief as- 
 serters of Constitutional rights against the arbitrary power 
 of the Crown. They did not, however, so much curb the 
 Royal power as consolidate their own. No reign, perhaps,, 
 is so replete with illegalities as [that of] Edward III. ; 
 but they were admitted to be exceptions, and disowned 
 as precedents, while the legal rule Was firmly established. 
 
 The regularity with which Parliament was assembled by 
 Edward III. confirmed the power of the Commons, by 
 affording them an opportunity for its frequent exercise. 
 To defray the enormous expenses of his wars, the King was 
 perpetually compelled to solicit the aid of his people, and 
 during the fifty years of his reign, forty-eight sessions of 
 Parliament are recorded. 
 
 It was, moreover, twice declared by statute (as it had 
 been previously directed by the Lords Ordainers in 131 1), 
 that Parliament should be held annually — by Which appears 
 
 toms anciently due and approved ' were not to be affected. In 13 10 the * little 
 custom ' was again imposed, on the ground that no reduction in prices had 
 followed the remission. (Pari. Writs, II. ii. 30.) In the following year the 
 Ordainers declared it illegal. 
 
 ^ [On the early concurrence of the Commons in legislation, see Clifford, 
 Hist, of Private Bill Legislation, 1885, vol. i. p. 288. Mr. Clifford says that 
 ' when the commons are not named in early statutes, their assent may be 
 presumed from the fact that most measures originated with their petitions.* 
 This statement, however, seems a little too broad, as it would, if unqualified, 
 import the assent of the Commons in cases where we know that, as a matter of 
 fact, it was not given, e.g., De Uceretico Comburendo. But it may perhaps be 
 taken as generally true, where there are not rebutting circumstances. — Ed.] 
 
 2 Statutes of the Realm, 15 Edw. II., i. 189. 
 
VIII.] Growth of Parliament, 283 
 
 to have been meant, not that there should be annual 
 sessions of the same Parliament, but a newly elected Par- 
 liament every year.^ Thus, in 1330, it was enacted: 'A 
 Parliament shall be holden every year once, and more often 
 if need be ; ' and again in 1362 : — 'For redress of divers 
 mischiefs and grievances which daily happen a Parliament 
 shall be holden every year, as another time was ordained 
 by statute.' ^ 
 
 During the long reign of Edward 1 11.,^ the Commons The 
 succeeded in firmly estabHshing as essential principles of^^^^^^^^ 
 our government three great rights : — three great 
 
 1. That all taxation without the consent of Parliament ^f, Edw, 
 is illegal. ^^^.] : * 
 
 2. The necessity for the concurrence of both Houses in 
 legislation. 
 
 3. The right of the Commons to inquire into and amend 
 the abuses of the administration. 
 
 Growing out of these main rights, two derivative rights 
 were also exercised by the Commons for the first time : 
 {a) The right to examine public accounts and appropriate 
 the supplies, which was involved in Nos. i and 3 ; and {b) 
 the right to impeach the King's Ministers for misconduct, 
 which was a corollary to No. 3. 
 
 I. Ever since the enactment of the Confirmatio Char- (i.) Taxation 
 tarum^ the illegality of levying aids or imposing talliages '^el^^illJa?' 
 by the sole authority of the King, had been an admitted 
 principle of the Constitution. But both Edward I. and his 
 son still continued occasionally to raise money in defiance 
 
 1 See Stubbs, Const. Hist. iii. 380. 
 
 2 4 Edw. III. c. 14 ; 36 Edw. III. st. i, c. 10. (Stat, of the Realm, i. 
 265, 374.) In the year 1328, no less than four Parliaments were held ; three 
 in 1340 ; and two in one year were not infrequent towards the end of Ed- 
 ward III.'s reign and during the early years of his successor. Stubbs, Const. 
 Hist. ii. 613. 
 
 ^ In the last year of Edward's reign, 1377, the Rolls of Parliament contafti 
 the first mention of a Speaker of the House of Commons, expressly named as 
 such, ' Monsieur Thomas de Hungerford, Chivaler, qi avoit les paroles pur les 
 Communes d'Engleterre en cest Parlement.' (Rot. Pari. ii. 374.) Peter de 
 la Mare, who was elected Speaker in Richard II. 's first Parliament, had 
 acted in that capacity, but without the name, in the Good Parliament of 1376. 
 [In Scotland a Speaker seems to be first mentioned in the Act 1427. — Ed.] 
 
284 Growth of Parliament. [Ch. 
 
 of this statute, and Edward III. constantly levied arbitrary- 
 imposts of every kind. The Commons, however, by their 
 continual remonstrances, their conditional grants, and their 
 liberal subsidies, whenever the King applied to them for 
 aid, succeeded at length in establishing 'the practice of 
 what was before the law^ the right of the people to tax 
 themselves.' ^ 
 
 In 1332 (6 Edward III.), a rebellion having broken out 
 in Ireland, the King assigned certain commissioners to 
 talliage the cities, towns, and Royal demesnes throughout 
 England ; but finding it still necessary to apply to Parlia- 
 ment he revoked these commissions, at the request of the 
 prelates, earls, barons, and knights of the shire, and in 
 consideration of the grant by the Lords and Commons of 
 a subsidy, promised that in time to come he would not set 
 such talliage, except as it had been done in the time of his 
 ancestors, and as he might reasonably do.^ 
 
 In 1339 (13 Edward III.), the prelates, earls and barons 
 made a grant of one-tenth of their corn, fleece, and lambs, 
 but only on the assurance of * some graces to the great and 
 small of the kingdom,' and with a stipulation that the 
 ' maltolt,' or illegal custom on wool, should be abolished, 
 and their present grant not drawn into precedent. The 
 Commons professed themselves most willing to grant a 
 subsidy, but unable to do so without first consulting their 
 constituents, for which purpose they desired that another 
 Parliament might be summoned. And they prayed that 
 the sheriffs be directed that no knight of the shire be 
 returned to the next Parliament who is himself a sheriff 
 or other official. They complained of the increased imposi- 
 tion on wool and lead, and boldly asserted that ' inasmuch 
 as it is inhanced without assent of the Commons, or of the 
 Lords, as we understand,' * any one of the Commons may 
 refuse it (le puisse arester) without being troubled on that 
 account (saunz estre chalangee).' ^ 
 
 1 Lingard, Hist. Eng. iv. 127. 
 
 ' Rot. Pari. ii. 66. 
 
 ^ Rot. Pari. ii. 104, 105 ; and see Hallam, Middle Ages, iii. 44. 
 
VIII.] Growth of Parliament, 285 
 
 Four years later, in 1343 (17 Edward III.), the King being 
 much pressed for money, assembled, with the concurrence 
 of the Lords, a council of merchants, and procured from 
 them, without the assent of the Commons, a grant of forty 
 shillings on every sack of wool that should be exported. It 
 seems to have been contended that this duty did not fall 
 upon the people, but upon the foreign purchaser ; but the 
 Commons in their remonstrance, showed that they possessed 
 some rudimentary knowledge of the principles of political 
 economy, alleging that the tax actually fell on the seller, 
 the foreign merchants refusing to give the accustomed 
 price on account of the additional duty.^ 
 
 In 1346 (20 Edward III.) Parliament prayed the King 
 that this forty shillings on the sack of wool might be taken 
 off ; but it was answered that the prelates and other mag- 
 nates [grantzj, seeing the necessity of the King, had as- 
 sented, with the accord of the merchants, that he should 
 have the said subsidy of wool for the prosecution of the 
 war ; and that as it had been pledged to his creditors it 
 must continue ; whereupon the Commons gave way.^ In 
 1363, however, upon the petition of the Commons, [no] 
 grants of subsidies upon wool were [to be] made by mer- 
 chants without the consent of Parliament.^ 
 
 In 1348 (22 Edward III.), the Commons made a con- 
 ditional grant and required the conditions — the most im- 
 portant being that the King should thenceforth levy no 
 ' imposition, talliage, or charge by way of loan or in any 
 other manner, without the grant and assent of the Com- 
 mons in Parliament ' — to be entered on the roll ' as a 
 matter of record, whereby they may have remedy if any- 
 thing should be attempted to the contrary in time to 
 come.'* In these conditional grants originated the doc- 
 
 1 * Voillez s'il Vous plest aver regard, que tut est en charge et a meschief de 
 voz Communes. Par qoi eel meschief, si Vous plest, ne voillez soefFrir, mes 
 soit amendez a cest Parleraent : qar ce est encontre reson que la Commune de 
 lour biens soient par marchandzchargez.' Rot. Pari. ii. 140. 
 
 2 Ibid. p. 161. 
 
 3 Rot. Pari. ii. 27 1. 
 * Ibid. p. 200. 
 
286 
 
 Growth of Parliament. 
 
 [Ch. 
 
 Appropria- 
 tion of 
 supplies 
 [1353]. 
 
 Audit of 
 
 public 
 
 accounts. 
 
 trine and practice that * supply should depend upon redress 
 of grievances.' 
 
 But while conceding the technical illegality of the pro- 
 ceeding, Edward seems always to have claimed a kind of 
 moral right to impose charges upon his subjects in cases 
 of great necessity, and for the defence of the kingdom. 
 This was asserted even in his last Parliament, in 1377;^ 
 and long previously, in 1339, with reference to the heavy 
 impositions laid on the people on the occasion of the war 
 with Scotland, the King had urged the same plea in a 
 letter to the Archbishop of Canterbury : ' That whereas 
 the people were burdened with divers charges, tallages, 
 and impositions, which he could not mention but with 
 much grief, yet being enforced by inevitable necessity, 
 could not as yet ease the people of them, he required the 
 archbishop to exhort the people patiently and humbly to 
 bear the burden for a while, and to excuse him towards 
 the people, hoping he should ere long recompense his said 
 people and give them comfort in due time.' ^ 
 
 The first unequivocal instance of appropriation of 
 supplies occurred in 1353, when a subsidy on wool was 
 granted, to be applied solely for the purposes of the 
 war.^ 
 
 In 1340 a Parliamentary Committee was appointed to 
 examine into the accounts of the collectors of the last 
 subsidy ; and in the following year it was enacted, at the 
 request of the Commons, that commissioners should be 
 assigned for a similar purpose.* Inquiry into the accounts 
 of the collectors was the first step towards examining into 
 the application of the money by the King's Ministers ; but 
 that some investigation of fiscal matters was absolutely 
 
 1 • Et quant a ce que charge ne fuisse mys sur le people sanz commune 
 Assent ; le Roi n'est mye en volontee de le faire, sanz grande necessite, et pur 
 la defense du Roialme, et la ou il le purra faire par reson.' Rot. Pari. ii. 366. 
 
 2 See Broom, Const. Law, 271. [Denman's ed., 1885, p. 269; in Mr. 
 Hakewill's argument, Bates's case. — Ed.] 
 
 3 Rot. Pari. ii. 252. 
 < Rot. Pari. ii. 130. 
 
Till.] Growth of Parliament, 287 
 
 necessary at this time, if only for the purpose of obtaining 
 statistics, is evidenced by the ludicrous miscalculation 
 made by the Parliament in 1371 (45 Edward III.), as to 
 the number of parishes in England. A subsidy was 
 granted of ;^ 50,000, to be collected by an assessment of 
 22s. 2id. upon every parish, the number of parishes being 
 assumed to be 45,000. After the Parliament had been dis- 
 missed, it was discovered that the number of parishes was 
 not much more than 8,600, and that the sum raised would 
 not exceed ;^ 10,000. To repair the error the King sum- 
 moned a Great Council, at Winchester, consisting of one 
 selected member out of the two who had sat in the last 
 Parliament for each county, city, and borough. He excused 
 himself for not summoning a full Parliament on the ground 
 of relieving his people from the additional expense ; ^ and 
 the facts of the case having been laid before the assembly 
 they increased the parochial assessment, of their own 
 authority, to i iGs? No complaint appears to have been 
 made of this irregularity, by which the main intention of 
 Parliament was carried into effect. In the following year 
 (1372) there occurred a more serious disregard of Consti- 
 tutional formalities, tending to destroy the unity of the 
 House of Commons by reviving the former separation of 
 
 ^ Both knights of the shire and burgesses were from the earliest time Payment to 
 entitled to receive wages, or more accurately, payment for expenses, from their knights of 
 constituents. The amount was fixed under Edward II., by the writs de the shire and 
 levandis expensis, at 4J. a day for a knight and 2s. for a burgess. These writs, burgesses. 
 which were issued, after the dissolution of Parliament, at the request of the 
 members who had served, may be regularly traced to the end of Henry VIII, 's 
 reign (Prynne's Fourth Register, p. 495). After that time payments still con- 
 tinued to be made voluntarily by some boroughs to their representatives. 
 Andrew Marvell, the witty member for Hull in the reign of Charles II., has 
 been erroneously reputed the last recipient of a salary. But in 1681, three 
 years afte^ Marvell's death, Thomas King, Esq., who had been member for 
 Harwich, obtained from the Lord Chancellor, after notice to the corporation of 
 Harwich, a writ de expensis burgensiiwi levandis. In 1830, a proposal to 
 restore the practice of paying wages to members was included by Lord Bland- 
 ford in a Reform Bill which he submitted to the House of Commons (Hansard, 
 Deb. 2nd Ser. xxii. 678). The late Lord Chancellor Campbell, in his life of 
 Lord Chancellor Nottingham, after citing the case of Thomas King, gave it as 
 his opinion that the writ might still be claimed, and that no new law is required 
 for those who desire to resume the ancient practice. 
 
 2 Rot. Pari. ii. 304. 
 
288 
 
 Gi^owth of Parliament. 
 
 [Ch. 
 
 Hon : con- 
 currence of 
 both Houses 
 necessary. 
 
 the borough from the county members. After the petitions 
 of the Commons had been answered, the knights were 
 dismissed ; but the burgesses were convened before the 
 Prince of Wales and the prelates and barons 'in a 
 chamber near the White Chamber,' and induced, as a 
 return for the continual safe convoy of merchant shipping, 
 to renew for a year a subsidy formerly granted upon 
 imports.^ 
 (ii.) Lcgisla- II. The right of the Commons to concur in legislation 
 * according as it hath been heretofore accustomed,' had 
 been solemnly affirmed by Parliament in the 15th of 
 Edward II. (1322), and is moreover proved by the form of 
 the enacting words of statutes, both prior and subsequent 
 to that date. From the year 13 18 down to the accession 
 of Edward III. the form invariably runs : — 'by the assent 
 of the prelates, earls, barons, and the commonalty of the 
 realm.' Under Edward III. this form alternates with 
 another, in which the share of the Commons is expressed 
 as that of petitioners, — 'at the request of the Commons 
 and by the assent of the prelates, earls, and barons.' This 
 was owing to the fact that at this time statutes were 
 almost always founded upon the petitions of the Commons, 
 which expounded grievances and prayed for specific reme- 
 dies.^ In 1340 (14 Edward III.) a joint Committee of 
 both Houses, consisting of the Archbishop of Canterbury 
 
 1 Rot. Pari. ii. p. 310; and see Hallam, Middle Ages, iii. 47. 
 
 2 Sometimes the Commons merely prayed for a declaration of the existing 
 law, in which case their assent to the declaration in answer was usually 
 assumed without being positively given. This was the case with the great 
 Statute of Treasons (25 Edw. III. st. 5, c. 2). The petition upon which this 
 Act is founded simply prayed that * whereas the king's justices in different 
 counties adjudge persons indicted before them to be traitors for sundry matters 
 not known by the Commons to be treason, it would please the King by his 
 council, and by the great and wise men of the land, to declare what are 
 treasons in this present Parliament.' The king's answer to this petition, 
 entitled ' A declaration which offences shall be adjudged Treason,' constitutes 
 the existing statute. It was a matter of the greatest Constitutional importance 
 that the law of Treason should be fixed and invariable. In subsequent reigns 
 the law of Treason was frequently extended to offences not mentioned in this 
 statute of Edward III. ; but it was always a popular measure to reduce the 
 crime to the limits of the ancient statute, which, with some modifications, 
 remains at the present day the law on the subject. 
 
VIII.] Growth of Parliament, 289 
 
 and a certain number of bishops and barons (with whom 
 were associated several of the Justices), and twelve knights 
 and six burgesses, was appointed to convert such petitions 
 and answers as were fit to be perpetual into statutes.^ 
 Matters of a temporary nature were usually regulated by Difference 
 Ordinances, which differed little from Statutes, except in ordnances 
 their less solemn and less permanent character, and in the af^Statutes. 
 fact that they were usually made, not in Parliament, but in 
 a Great Council. The Great Councils, however, sometimes 
 contained all the elements of a Parliament ; the only 
 difference being that the summonses were not in Parlia- 
 mentary form. But in ordinary cases the Lords and the 
 King's Council were the only members. Notwithstanding 
 the tendency of Ordinances to impair the legislative power 
 of the Lower House, the dislike of the Commons for inno- 
 vations in the statute law made them partial to the former 
 species of legislation. Thus, in 1363 {2>7 Edward III-), 
 when it was proposed to enact the first sumptuary laws, 
 the Lords and Commons were asked, * inasmuch as the 
 matter agreed upon in Parliament was novel and unheard 
 of before,' whether they would prefer an Ordinance or a 
 Statute. They decided to proceed * by way of ordinance 
 and not by statute, in order that, if anything should need 
 amendment, it might be amended at the next Parliament.' ^ 
 The important ' Ordinances of the Staple,' which, among Ordinances 
 other things, prohibited English merchants from exporting ^^ ^^ 
 wool under pain of death, were promulgated in a Great 
 Council held in 1353 (27 Edward III.), at which one knight 
 from each shire, and certain citizens and burgesses attended. 
 The introduction of a new capital offence was clearly a 
 matter which required the sanction of a regularly consti- 
 tuted Parliament. Conscious of the danger of departing 
 from the legal form of the Constitution, the Commons 
 present at the Great Council prayed ' that the said articles 
 might be recited at the next Parliament and entered upon 
 
 ^ Rot. Pari. ii. 113. 
 
 * Rot. Pari. ji. 280 ; and see Hallam, Middle Ages, hi. 49. 
 
29C Growth of Parliament, [Ch. 
 
 the Parliament roll, for this cause that ordinances and 
 
 agreements made in Council are not of record, as if they 
 
 had been made in a general Parliament/ In the next 
 
 Parliament the Ordinances were expressly confirmed ' to be 
 
 holden for a statute to endure always/ and it was enacted 
 
 at the same time, that no alteration or addition should be 
 
 made in future without the assent of Parliament.^ 
 
 (iii.) Right III. On two occasions during the reign of Edward III., 
 
 /{ en^uirr ^^^ Commons interfered with great boldness in matters of 
 
 into admin- governmental administration. 
 
 abuses. (i) In the Parliament which met in April, 1341 (15 Ed- 
 
 Attempt to ward II I.), they made, in conjunction with the Lords,a praise- 
 responsi-* ^ Worthy but premature attempt to establish the responsibility 
 biiity of of the King's Ministers to Parliament. Edward's quarrel 
 Parliament, with the Archbishop, John Stratford, and the proceedings 
 1342. instituted against that prelate in the Exchequer, had raised 
 
 the question of the right of peers to be tried by their peers 
 in Parliament, and a Committee of the Lords reported in 
 the affirmative. When the question of supply came up, 
 each of the Three Estates made a series of conditional 
 demands, three of which are of special interest, (i) The 
 Lords required a statute enacting, in conformity with the 
 recent report of their committee : That when the King was 
 prosecutor {oi\ le roi se fait partie), no peer of the land, 
 whether Minister or not, and whether on account of his 
 office or for any other cause, should be brought to trial, 
 lose his lands, tenements, goods or chattels, be arrested, 
 imprisoned, outlawed or forfeited, or be bound to answer 
 or be judged, except in full Parliament and before the 
 peers ; saving unto the King the laws rightfully used by 
 
 ^ Rot. Pari. ii. 253, 257. [On the distinction between Ordinances and 
 Statutes some interesting statements and criticisms will be found in Mr. 
 Frederick Clifford's History of Pt-ivate Bill Legislation^ 1885, vol. i., p. 332. 
 Mr. Clifford is not satisfied with some of the distinctions laid down by Dwarris. 
 But it is clear that an Ordinance was subject to examination, and was then 
 either confirmed as a Statute or annulled, and that seems sufficient to establish 
 a broad line of demarcation between the two. The distinction here drawn is 
 proved by the revision of Ordinances ordered at the prayer of the Commons, 
 I Edw. III. Cf. Clifford, loc. «V.— Ed.] 
 
VIII.] Growth of Parliament. 29 1 
 
 due process, and saving also suits between party and 
 party.^ The Lords and Commons together petitioned : (2) 
 That Commissioners should be appointed to inquire into 
 the accounts of such as had received the aids and other 
 public monies; and (3) That the Ministers and Judges 
 should be appointed in Parliament, and sworn to observe 
 Magna Charta and the other statutes.^ 
 
 The most important of these demands, and at the same 
 time the most obnoxious to the King, were the Parlia- 
 mentary appointment of the Ministers and Judges, and the 
 auditing of accounts, which, combined, would at once have 
 involved full Ministerial responsibility. 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 slight modi- 
 fication 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 responsible to all having cause of 
 complaint against them. The passing of this statute gave First protest 
 rise to the first protest on the rolls of Parliament, the l^p^riiff 
 Chancellor, Treasurer, and Judges, recording their dissent, ment against 
 On the dissolution of Parliament, Edward had recourse to p/anAaf 
 the violent measure of declaring this statute null and void, 
 in a proclamation addressed to all the sheriffs. He was, j 
 
 ^ Rot. Pari. ii. 127. Anciently Bishops would appear to have been regarded 
 as Peers ; and the claim of Archbishop Stratford to be called upon to answer in 
 Parliament only, was admitted by the King. But Bishops have long been held 
 to be ' lords of Parliament ' only and not * peers ; ' not being ennobled in 
 blood, they are 'not of trial by nobility,' and would be tried for a capital 
 offence by a jury of commoners. Lords' Standing Ord. No. 79, a.d. 1692; 
 Trials of Bishop Fisher and Archb. Cranmer, i Howell, St. Tr. pp. 399, 771 ; 
 May, Pari. Prac. pp. 15, [742]. [The expression 'Lord of Parliament,' appears 
 to be here used by the author in a technical English sense, different from that 
 which it bore in Scotland, where it was applied, in the 15th century, to certain 
 members of the greater Baronage who at that time began to be made hereditary 
 Peers as ' Domini Parliamenti.' According to the author's view it would 
 seem that one of the modern Lords of Appeal, who are Life Peers only, and 
 whose blood is therefore not ennobled, would be triable by a jury of Com 
 moners. The question has fortunately not as yet arisen. It would be interest- 
 ing, from a Constitutional point of view, to note the attitude taken in such a 
 case by the House of Lords, whether in regard to a Bishop or aXiOrd of Appeal. 
 —Ed.] 
 
 - Rot. Pari. ii. 131 ; and see Stubbs, Const. Hist. ii. 389. 
 
 U 2 
 
292 Growth of Parliament. [Ch. 
 
 however, conscious of the gross illegality of his conduct, 
 and in the following Parliament procured the formal repeal 
 of the obnoxious Act.^ 
 Firstin. (2) In 1376 (50 Edward III.) the Commons for the 
 
 stance of n - • t 1 .- 
 
 parliament' nrst time cxercised the Constitutional right of impeach- 
 l^ntT'''^'' ment. During the declining age of the King and the 
 lingering 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 proceed- 
 The Good ins^s which took place in the 'Good Parliament,' as that 
 which met in the 50th of Edward HI. was long called 
 among the people. Fifty years before, a combination ot 
 the Barons against the Lancastrian party would doubt- 
 less have been the form which the opposition 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 
 strengthened by the addition of ten or twelve lords, prelates, 
 and others, * to be constantly at hand so that no business 
 of weight should be despatched without the assent and 
 advice of all.' After complaining, in general terms, that the 
 King and kingdom had been greatly impoverished 'for 
 the private advantage of some near the King, and of others 
 by their collusion,' the Commons proceeded to impeach. 
 Lords at the bar of the House of Lords, two peers, Latimer and 
 
 NeviTHm-"'^ Nevill, who held office under the King, and four commoners, 
 peached by Lyons, Ellys, Peachcy, and Bury, farmers of the customs 
 
 the Com- 
 mons, IJ76. 
 
 Rot. Pari. ii. 139; Rymer, ii. 1177; and seellallam, Middle Ages, iii. 51. 
 
VIII.] Growth of Parliament. 293 
 
 and of certain monopolies.^ The grounds of impeachment 
 were various, but the three principal allegations against 
 the accused were: (i) That they had procured and ad- 
 vised 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 expelled from the Council 
 for ever and placed under arrest ; Lord Nevill was deprived 
 of all his offices ; while Lyons, Ellys, and Peachey were 
 imprisoned and placed at the King's mercy.^ 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 administration ; the new council of twelve was 
 removed ; the former partisans 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 Com- 
 mons, was arrested under false pretences, and imprisoned 
 in Nottingham Castle. In the following year a Parlia- a packed 
 ment, packed with the Duke's supporters, illegally returned Commons, 
 by the sheriffs at his request,^ undid the work of its 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. 
 
 1 * Before that 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.' — May, Pari. Practice, p. [58]. 
 
 2 Rot. Pari. ii. 323-329- 
 
 3 Lingard, Hist. Eng. iv. 104. 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. 
 
294 Growth of Parhament, (Ch. 
 
 Commons '^^^ intervention of the Commons was not confined to 
 
 intervene in questions of internal administration. Under Edward III. 
 
 war^and^ ° wc find them constantly consulted and giving advice on 
 
 peace. 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.^ But we have seen that the consideration 
 
 of questions of this nature was an ancient right of the 
 
 National Council,^ a body with which the Commons had 
 
 now been long permanently incorporated ; and it has been 
 
 fairly contended that they voluntarily sought the exercise 
 
 of this power, accepted the attendant responsibility, and 
 
 gained greatly by so doing.^ 
 
 In 1328, while Edward was still a minor, and Mortimer 
 held the reins of power, the treaty of peace with Scotland, 
 by which that kingdom was liberated from all feudal subor- 
 dination to England, was concluded with the consent of 
 Parliament, the Commons being expressly mentioned. 
 
 In 1 33 1, the King consulted Parliament on the question 
 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 1 341, in the first flush of Edward's French 
 
 1 Middle Ages, iii. 53. 
 
 2 Supra, p. 273. 
 
 3 Guizot, Hist, du Gouv. Rep. vol. ii. [To the same eflfect, Green, Hist, 
 of the English People, 1878, i. p. 413, sub Edw. III.: 'With the diffi- 
 culties of the Crown the weight of the two Houses made itself more and 
 more sensibly felt. . . . With each supply some step was made to greater 
 political influence. In his earlier years Eclward [III.] showed no jealousy of 
 the Parliament. His policy was to make the struggle with France a national 
 one by winning for it the sympathy of the people at large ; and with this view 
 he not only published in the County Courts the efforts he had made for peace, 
 but appealed again and again for the sanction and advice of ^Parliament in his 
 enterprise. ' — Ed. ] 
 
 < Pari. Hist. i. 93. 
 
VIII.] Growth oj Parliament, 295 
 
 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 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 deliberation, gave 
 their opinion that the King ought to make peace if he 
 could obtain a truce that would be honourable and advan- 
 tageous to himself and his friends, but If not, the Commons 
 declared that they would aid and maintain his quarrel with 
 all their power.^ 
 
 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 burthensome), 
 the Commons returned a very discreet and guarded answer. 
 • Most dread lord,' they said, ' as to your war and the array 
 thereof, we are so ignorant and simple that we cannot give 
 you advice. We therefore pray your gracious lordship to 
 excuse us, and that it please you, with the advice of the 
 great men and of the sages of your council, to ordain what 
 shall in this matter seem best to you for the honour and 
 profit of yourself and your kingdom ; and whatever shall 
 be thus ordained by the consent and agreement of you and 
 of the great men aforesaid, we readily assent to, and will 
 hold it firm and established.' ^ 
 
 In 1354, the King informed the Parliament, through the 
 Lord Chamberlain, that there was great hope of bringing 
 about a peace with France, but that as he would not con- 
 clude anything without the assent of the Lords and Com- 
 mons, he wished to know whether they would agree to 
 peace if it might be had by treaty. To this the Commons 
 
 » Pari. Hist. i. io6. 
 * Rot. Pari. ii. 165. 
 
296 Growth of Parliament. [Ch. 
 
 at first replied * that whatever should be agreeable to the 
 King and the Lords in making of this treaty, would be so 
 to them ;' but on being asked again ' If they consented to 
 a treaty of perpetual peace if it might be had ? ' they all 
 with one voice cried out * Aye ! Aye ! ' ^ 
 
 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 Scotland 
 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, because 
 the conditions of the last treaty had not been observed ; 
 and the Parliament advised him to do so.^ 
 
 These examples show the settled practice during the 
 reign of Edward III., and from that time questions of war 
 and peace have been admitted, both by the Sovereigns who 
 have requested, and by the Parliaments which have freely 
 offered, counsel and advice, to be proper subjects of Parlia- 
 mentary cognisance. ' The exercise of this right,' it has 
 been well observed, * 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 pre- 
 vailed over prerogative that it had the means of enforcing 
 its advice.' * 
 
 Active con- In many other matters, besides those already enumerated, 
 trol exer- 
 
 * * Responderent entierement et uniement, Oil, Oil.' Rot. Pari. ii. 262. 
 
 2 Pari. Hist. i. 131. 
 
 3 See Guizot:, Hist, du Gouv. Rep. vol. ii. 
 
 ^ May, Const. Hist. ii. 86. P'or instances of Parliament being consulted as 
 to peace or war under Henry VH., James I., and Queen Anne, see Pari. Hist. 
 i. 452; i. 1293; V. 609. 
 
VIII. ] Growth of Pa7'liament, 297 
 
 the Commons, under Edward III., exercised an active con- cisedby the 
 
 • / -f-j Commons 
 
 trol over State affairs. The statute of Provisors (25 Kdw. over various 
 III.),— which checked the power assumed by the Pope of ^^^^'^^°^ 
 nominating foreign clerks to fill the Ecclesiastical benefices 
 and dignities of England, — was passed in consequence of 
 *the grievous complaints of all the Commons of the realm.' 
 In 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 1372 (46 Edw. 
 III.) that no lawyer practising in the King's court, nor 
 sheriff during his shrievalty, should be returned or accepted 
 as knight of the shire. The reason alleged was that many 
 lawyers had procured seats in Parliament for the purpose 
 of putting forward, in the name of the Commons, petitions 
 which only concerned their private clients ; and that sheriffs, 
 being common ministers for the people, ought to reside in 
 their ofificial districts to administer right to all.^ 
 
 The reign of Richard II. is perhaps the most interesting RichardII. 
 period in the early Constitutional history of England. It ^^^^^^^^^^ ' 
 was the turning-point in the long struggle between Constitu- tionai im- 
 tional liberty and that arbitrary power towards which the ^I^J^Tei^u 
 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 Parlia- 
 mentary government. His deposition and the election of 
 the worthiest member of the Royal house to fill his place 
 marked the final triumph of Constitutional principles, and 
 furnished a precedent of the greatest value when, nearly 
 three hundred years later, the last of the Stuart kings 
 attempted once more to make * the royal will the only law.' 
 It was in the reign of Richard II., moreover, that the for- 
 midable insurrection of 1381 proved the turning-point in 
 
 * Rot. Pari. ii. 310. Though long [practically] obsolete, this statute was not 
 formally repealed till 1871. 
 
298 Growth of Parliament. [Ch. 
 
 the history of villeinage, which thenceforth gradually de- 
 clined until it died out without any legislative abolition ;^ 
 and in this reign also, we recognise in the theological 
 writings of Wycliffe * the true epoch of the beginning of the 
 English Reformation.' ^ 
 
 Under Richard II. not only did the Commons confirm 
 , I by frequent exercise the three main rights established 
 I under Edward III., that (i) no money could be levied or 
 (2) laws enacted without their assent, and that (3) the ad- 
 ministration 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, (i) the 
 right to examine the public accounts and appropriate the 
 supplies, and (2) the right to impeach the King's Ministers 
 for misconduct. 
 The three In taking a rapid survey of the principarConstitutional 
 
 the reign of events of the twenty-two years of Richard's reign, it will be 
 Richard II. convenient to divide it into three periods. I. From 1377 
 to the coup d'etat of 1389, when the King suddenly enquired 
 his age and took the reins of government into his own 
 hands. II. From 1389 to the second coup d'etat of 1397, 
 when the King seized the Duke of Gloucester and the 
 Earls of Warwick and Arundel (three of the five ' lords 
 appellant ') and executed his long dissimulated project of 
 revenge. III. From 1397, when the King began to exer- 
 cise despotic power, until his deposition in 1399. 
 
 First period I. 1377-1389. During this period of minority the Com- 
 1377-1389- 
 
 ^ [It is argued by Prof. Kovalevsky, Art. Villein Tenure in England in 
 17M Cent., in Arch. Rev. vol. i., 1888, that a legislative abolition of Villein- 
 age was needed under the Commonwealth, long after Piggv, Caley. — Ed.] 
 
 2 Shirley, Fasciculi Zizaniorum. [Later writers have denied that there is any 
 such epoch. Indeed, the Hibbert Lecturer for 1883, the Rev. Charles Beard, 
 treating of the Reformation of the i6th century, gave it as the differentiating 
 note of the English portion of that movement, that ' there is no point at which 
 it can be said. Here the old Church ends : here the new begins' {Hibbert 
 Led. 1883, p. 300). It is, of course, true, moreover, and is probably to be 
 taken as Canon Shirley's meaning, that the seed of a Reform movement was 
 sown in the period commonly known as the zenith of the Middle Ages, and 
 that of such seed Wycliffe was the principal sower in England. — Ed.] 
 
VIII.] Growth of Parliament. 299 
 
 mons, no lons^er content with a defensive warfare against 9^^^^ . 
 
 ^ 1 • J increase m 
 
 the Crown in order to protect the rights already acquired, power of the 
 assumed an aggressive character, and for some years * the Commons, 
 whole executive government was transferred to the two 
 Houses.' ^ 
 As soon as the coronation of the boy-king was over, the Council of 
 
 1 1 1 i 1 t -111 I- t'^^l'v^ ap- 
 
 prelates and barons held a great council, and chose, in pointed as 
 aid of the chancellor and treasurer,' twelve councillors to ^ ^"^^^' , 
 
 ' regency by « 
 
 act as a quasi-regency. About three months afterwards a the prelates 
 Parliament was summoned, and the House of Commons, to ^^ ^^^^^' 
 which had been returned a large proportion of the knights 
 who sat in the * Good Parliament ' which impeached the 
 Lancastrian Ministry, elected as their speaker Sir Peter de 
 la Mare, now released from prison. The Commons at On the 
 once proceeded to assert their right to a voice in the Parlia^rnent, 
 government; and at their request, the Lords, in the King's ^permanent 
 name, appointed a permanent Council of Nine, without council of 
 whose unanimous consent no business of importance was to ^^^^^^^^^ 
 be transacted. They also petitioned that, during the King's request of 
 minority, the Chancellor, Treasurer, Judges, and other high Jnons.°"^" 
 officers, should be made in Parliament ; and procured the 
 appointment of two London merchants, William Walworth Walworth 
 
 ",_,_,., / , 1 /. , . 1 1 1 1 andPhilypot 
 
 and John Philypot (the latter of whom is celebrated as the made sworn 
 first Englishman who has left behind him the reputation of ^^g^^Jj^" 
 a financier), as sworn Parliamentary treasurers to receive treasurers. 
 and disburse the liberal subsidy granted for the French 
 war.2 
 
 The heavy expenses attending the prosecution of this Right of 
 war, — a legacy which Richard had inherited from his ^q examine 
 grandfather, — and the usual want of economy incident to a P"^^^^ ^^' 
 minority, necessitated frequent and urgent appeals to appropriate 
 Parliament, and the Commons were always careful to tack gstablSheT 
 conditions to their grants. In the next Parliament they 
 required a clear account in writing of the receipt and ex- 
 penditure of the last subsidy, a request which was reluct- 
 
 ' Hallam, Middle Ages, iii. 59. 
 2 Rot. Pari. iii. 5-7. 
 
300 Growth of Parliament, [Ch. 
 
 antly 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 of 
 the realm, which could not be done without Parliament ; 
 but as the necessity was very urgent, all the Lords there 
 present voluntarily lent divers large sums of their own 
 money, as did also * the good men of London and many 
 other towns, and several persons in the kingdom to whom 
 the King applied with the assent of the said Great Council.' 
 The Lords then strongly advised that a Parliament should 
 be presently summoned, as well for the repayment of their 
 loan as for further supply.^ This advice was acted upon, 
 and it is significant of the real progress made that, as soon 
 as Parliament met, the King voluntarily, without waiting 
 for a petition, informed the Commons that the treasurers 
 were ready to exhibit the accounts before them ; and a 
 committee was appointed to enquire generally into the 
 state of the revenue. A similar committee, but with more 
 extended powers, was appointed in the following year (3 
 Ric. IL) ; and the right of the Commons to investigate 
 the accounts and appropriate the supplies was clearly 
 established.^ 
 Bold Ian- -^^ ^^ Parliament which met after the insurrection of 
 
 guageofthe the villeins in 1381 (5 Ric. IL), the language of the Com- 
 mons was characterised by a remarkable boldness. After 
 expressing their conviction that, ' unless the governance of 
 the realm were speedily amended, the realm itself would 
 be utterly lost and ruined for ever, and, as a consequence, 
 our Lord the King, and all the Lords and Commons, 
 
 1 Rot. Pari. (2 Ric. II. , Nos. 3, 4, and 5,) iii. 55. 
 
 2 After the reign of Hen. IV. this right fell into disuse. It was revived in 
 1624 and 1 64 1, and again firmly established as an undisputed principle under 
 Charles II. in 1666. — Hallam, Const. Hist. ii. 356. 
 
VIII. J Growth of Parliament, 30 1 
 
 which, in His mercy, God forbid,' they assert * that there 
 are such defects in the said governance, as well about the 
 King's person and in his household (through the outrageous 
 number of his familiars established there) as in his courts 
 of justice; and by grievous oppression in the country 
 through the outrageous multitude of embracers and main- 
 tainers of suits, who are, as it were, kings in the country ; 
 that neither right nor law is done to any, and the poor 
 Commons are from time to time so pillaged and ruined, 
 partly by the King's purveyors of the household and 
 others, who pay nothing to the same Commons for the 
 victuals and carriage which they take, partly by the sub- 
 sidies and talliages raised upon them, and besides by the 
 grievous and outrageous oppressions 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 bitter complaints against the 
 administration, they emphatically conclude : * And for 
 God's sake let it not be forgotten that there be put about 
 the person of the King, for and of his council, the most 
 sufficient and discreet lords and knights that man can have 
 or find in the kingdom.' A Commission of Reform was 
 appointed 'to survey and examine in privy council both 
 the state and government of the King's person and of his 
 household, and to suffSfest proper remedies.' And it was Bold Ian- 
 
 • t / . ^ ^ ,ix 1 1 T 1 • guageofthc 
 
 said (contmues the entry on the roll) by the Lords m Lords. 
 Parliament that, * as it seemed to them, if amendment of 
 government were to take place throughout the kingdom 
 it should begin by the chief member, which is the King 
 himself, and so from person to person, as well of Holy 
 Church as others, and from place to place, from higher to 
 lower, sparing no person, degree, or place.' ^ The Lords 
 and Commons seem to have vied with each other in Unanimity 
 boldness and plainness of speech. It was in a great Housesr^ 
 
 » Rot. Pari. iii. ICX3. 
 
Growth of Parliament. 
 
 [Ch. 
 
 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 Consti- 
 tutional principles was obtained.^ It was only when, later 
 on, the baronage had split up into rival factions, that 
 Richard was enabled to get rid of the chiefs of the oppo- 
 sition, 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 Edward II. This led to the proceedings of the tenth year 
 of this reign, which mark an important epoch in Parlia- 
 mentary history. The abuses of administration, unchecked 
 by the remonstrances of Parliament, or even by statutory 
 enactments,^ at length became so grave, that the Commons 
 determined to remove the Ministry and to impeach its 
 chief, the Chancellor, Michael de la Pole, Earl of Suffolk. 
 This prosecution confirmed to the Commons their newly- 
 acquired right of impeaching the Ministers of the Crov/n. 
 
 of Parlia 
 ment in the 
 loth of 
 Richard II. 
 1386. 
 
 Impeach- 
 ment of 
 Michael de 
 la Pole, 
 
 1 ' 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 coordinate 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. 99. In recent times, however, differences between the two Houses have 
 become more common. 'The Lords,' remarks 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 adop- 
 tion 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 disapproved. 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 increased in power ; and the influences which formerly tended 
 to bring them into harmony with the Lords have been impaired.' — May, 
 Const. Hist. i. 307. 
 
 - Sed quid juvant staiuta ? says Walsingham, 'since the King with his privy 
 council is wont to alter or abolish what in Parliament the whole commonalty 
 and the baronage have just enacted.' — Walsing. ii. 48. 
 
VIII. ] Gfowth of Parliament. 
 
 In the Parliament which met on the 1st of October, 1386, 
 the Lower House, instead of taking into consideration 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 Par- 
 liament and remove the obnoxious Minister from office.^ 
 At length Richard was rash enough to threaten to call in 
 the advice of the King of France ; a threat which pro- 
 duced the memorable address in answer, in which the 
 Parliament referred to the deposition of Edward H., and 
 plainly intimated to the King that his continued contu- 
 macy would produce a similar result.^ After this Richard 
 yielded ; the Chancellor 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 a very able defence, and was acquitted on some 
 of the charges : but being found guilty on the rest was 
 
 * Knyghton, in Decern Script, col. 2680 ; Hallam, Midd. Ages. iii. d']. 
 
 2 Their words were : * We have an ancient statute, and it was not many 
 years ago experimented (it grieves us that we must mention it) that if the 
 King through any evil design or foolish obstinacy, or contempt, 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, statutes, and laud- 
 able ordinances of the realm, with the salutary counsel of the lords and great 
 men of the realm, but will throw himself headlong into wild designs, and 
 wantonly exercise his own singular arbitrary will, — from that time it shall be 
 lawful for his people, by their full and free assent and consent, to depose the 
 King himself from his royal throne, and in his stead to raise up some other of 
 the royal race upon th^ same.' — Knyghton, col. 2683 ; Pari. Hist. i. 186. 
 There was, of course, no general ' statute ' authorising the deposition of 
 Kings. The reference was to the statute deposing King Edward II. 
 
 0^0 
 
304 Growth of Parliament, Ch. 
 
 condemned to forfeit all his grants, anc^ to be committed 
 to prison duringjthe King's pleasure.^ 
 Commission Acting on the precedents of the reigns of John, 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.^ 
 At length the King consented, and a Commission, consist- 
 ing of fourteen persons of the highest eminence, was ap- 
 pointed by statute, with almost unlimited powers for the 
 space of one year.^ 
 
 Richard, who was now in his twentieth year, had no 
 intention of submitting to the loss of power. Before the 
 dissolution of Parliament he had made a verbal protesta- 
 tion that nothing done therein should be in prejudice 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 pro- 
 Answers of pounded to them the famous set of questions. The Judges 
 to Richard's g^-ve their answers in writing under seal, (i) that the late 
 questions, statute, Ordinance, and commission were derogatory to the 
 King's prerogatives ; (2) that all who procured the said 
 
 ^ Rot. Pari. iii. 216-220. There is reason to believe that Suffolk was as 
 much ' sinned against as sinning.' As 2i 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 Essay for 1866.' 
 
 2 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 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 dissipation Nothing 
 
 less than an extraordinary remedy could preserve the still unstable liberties of 
 England. ' — Middle Ages, iii. 69, 70. 
 
 < Rot. Pari. iii. 224. 
 
VIII. ] Growth of Parliament. 305 
 
 statute, ordinance, and commission to be passed, or per- 
 suaded or compelled the King to consent to it, were 
 deserving of the punishment of death ; (3) that the King, 
 and not the Lords and Commons, had the power to deter- 
 mine the order in which business should be proceeded 
 upon in Parliament ; ^ (4) that the King could dissolve 
 Parliament at pleasure ; (5) that his Ministers could not 
 be impeached without his consent ; (6) that any member 
 of Parliament contravening articles 3, 4, and 5, should be 
 punished as a traitor, and especially he who had moved 
 that the statute deposing Edward II. should be sent for, 
 and he who had brought it in ; and (7) that the judgment 
 against the Earl of Suffolk was altogether erroneous, and 
 might be revoked.- All the Judges, except one, subse- 
 quently protested that these answers had been extorted 
 by threats. Whatever may have been the motive which 
 dictated them, they were undoubtedly both servile and 
 sanguinary, unconstitutional for the most part, even as the 
 Constitution was then understood, and utterly inconsistent 
 with the continued existence and future development of 
 Parliamentary liberty. 
 
 The King had been secretly maturing a plot for working I'lot of the 
 out his revenge through the medium of a corrupt bench of ag^^gt 
 Judges and a packed House of Commons. He had in- Parliament^ 
 tended, after securing a Parliament favourable to his cause,^ 
 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 Its discovery 
 of this plot led to the subsequent revolutionary proceedings ^^^^'^^^^.^ ^y 
 
 of the five * Lords Appellant ' (Gloucester, Derby, Notting- ary proceed- 
 ings of the 
 
 Lords 
 
 Appellant. 
 * This was directed against the contention of the Commons, insisted upo 
 
 in the case of Suffolk's dismissal, that redress of grievances ought to preced 
 
 supply. 
 
 2 Rot. Pari. iii. 233 ; and see [Hallam] Middle Ages, iii. 72. 
 
 3 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 cf electing their own representatives. — Vita Ricardi, p. 85; Wals, 
 ii. 161. 
 
 C.H. X 
 
3o6 
 
 Growth of Parliament, 
 
 [Ch. 
 
 Merciless 
 Parliament. 
 
 Insurrection 
 of the 
 Villeins^ 
 1381. 
 
 History of 
 Villeinage. 
 
 Depression 
 of the Ceorls 
 prior to the 
 Conquest. 
 
 Depression 
 continued 
 after the 
 Conquest : 
 
 ham, Warwick, and Arundel) in the Parliament, which with 
 equal propriety has been termed the * Wonder-working ' and 
 the * Merciless.' Deprived, 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 growing disunion in their ranks, and of a reaction in 
 public opinion, he suddenly (in 1389) snatched the helm 
 of Government from their grasp. 
 
 The formidable insurrection of the villeins in 1381 had 
 very forcibly called the attention of the knights and 
 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 of 
 a large number of the ceorls had been gradually becoming 
 more and more depressed. Although they were all free- 
 men, an increasing number had lost the privilege of com- 
 mending themselves to whatever hlaford they pleased, 
 and were unable to quit the soil which they cultivated for 
 their own and their lord's benefit. There is no evidence 
 that the Normans made any change in the legal position 
 of this class of the people. On the contrary, the cus- 
 tomary 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 debitiim et statutum^ nee Hut 
 domiiiis removere colonos a terris dummodo debita servitia 
 persolvant} 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 
 
 1 Thorpe, Ang.-Sax. Laws, 481, c. I ; Leg. Gul. Conq. c. 29. 
 
VIII.] Growth of Parliament. 307 
 
 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 as an in- 
 system to all kinds of land, which was a result of the ^a^^eFeudal 
 Conquest, must have tended very much to throv/ the small system. 
 landed proprietors under manorial lordships.^ The ceorl, 
 who had previously been at liberty to go where he willed, 
 would now tend to the position of one bound to the soil ; 
 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, as libere tenentes or socmanni, rendering, by way of rent, 
 fixed agricultural services, exclusive of, or in conjunction 
 with a money payment. The rest, under the generic ' villein ' a 
 term villani^ were the agricultural labourers whose wages Y^V^^ ^^^^ 
 were paid in land carved out of the demesne which they agricultural 
 cultivated for the lord. But amongst the villeins there both"fr^ee 
 were various grades, of which the higher, possessing larger and servile. 
 holdings, and performing the more honourable services of 
 agriculture, probably approached very near to the soc- 
 manni ; while the lower, such as the bordarii^ cottarii^ 
 and cotseti, 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? 
 
 ^ In Bracton (lib. i. c. Ii, fol. 7) we read : Fuerunt etiam in Conquestu 
 liberi homines qui libere tenuerunt tenementa sua per libera servitia vel per 
 liberas consuetudines, et cum per potentiores ejecti essent, postmodum reversi 
 receperunt eadem tenementa sua tenenda in villenagio, faciendo inde opera 
 servilia, sed certa et nominata : et nihilominus Hberiy quia licei faciant opera 
 servilia non faciunt ea ratione personarum sed ratione tenementorum.' This is 
 borne out by Domesday, ii. 315; 'Duo taini ienuere, ibi sunt duo villani.' 
 [It seems to be rather a probable inference than a certainty, that the villani 
 of Domesday, in the case cited, were the same men who had been taini 
 T. R. E.— Ed.] 
 
 2 \J)\^y, Hist. Law of Real Property, pp. 128-9, speaking of the period 
 from Hen. II. to Hen. III., shows how the practice of allowing villeins to 
 continue to occupy their lands without interruption, and even to alienate and 
 
3o8 Growth of Parliament. [Cir. 
 
 Status of Glanvill, writing in the reign of Henry II., speaks of the 
 
 "' nativi as being absolutely dependent upon their lords* will, 
 and so destitute of any kind of property that they were 
 legally incapable of purchasing their own redemption from 
 villeinage.^ Here we may probably trace the influence of 
 the Roman law as to slavery ^ in exaggerating the servile 
 aspect of villeinage in the eyes of the mediaeval lawyers. 
 Applied to the lower grade of villeins — the representatives 
 of the ancient theows, the servi of Domesday — this de- 
 scription is doubtless quite accurate ; but with regard to 
 the whole class of agricultural labourers, generically known 
 as villeins, it is inconsistent with what we learn from other 
 historic sources. That villeins had property, notwithstand- 
 ing 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 {s. a. 1096) : 
 Comites, barones, vicecomites siws milites et villanos 
 spoliavermitj et regi non modicam siimmam auri et argenti 
 detiilerunt? So in the * Dialogus de Scaccario/ among 
 possible debtors to the King are enumerated miles^ vet 
 liber alius, vel ascriptitius} In Magna Charta (sec. 20), 
 
 transmit their interests to their descendants, gave a new sense to the word 
 villenagium, which by that time had come to mean (i) the nature of a villein's 
 interest in land, (2) the kind of interest which a villein has, though the land 
 may be held by a freeman. At this period (Hen II. — Hen. III.), the villein, 
 or freeman holding in villeinage (except when protected by an express covenant 
 under seal entered into by the lord), held strictly at the will of the lord. See 
 further Bracton, lib. iv. c. 28, fol. 208, cited by Digby, ubi supra. ' The 
 distinction between bordars and cottars,' says Morgan, Efigl. under the 
 NormanSy p. 64, ' is by no means clear . . their name [bordarit] had been 
 brought into England by the Normans, and it disappears at the end of the 
 1 2th century. In Normandy they were principally employed in domestic 
 labour.'— Ed.] 
 
 * Omnia catella cujuslibet nativi ita intelliguntur esse in potestate domini 
 sui, quod propriis denariis suis versus dominum suum a villenagio se redimere 
 non poterit.— Glanvill, lib. v. c. 5 ; see also Dialog, de Scac. lib. i. c. 11 ; lib- 
 ii. c. 14. 
 
 * Ipse enim servus, qui in potestate alterius est, nihil suum habere potest. 
 Inst. II. ix. 3. 
 
 ' Sim. Dunelm. [ii. 227. Rolls Ser.— Ed.] 
 
 ^ Dial, de Scac. lib. 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 organiser of the administration of that 
 court. It contains *an extraordinary mass of information on every important 
 
VIII.] Growth of Parliament. 309 
 
 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 
 provisions, hay, and provender as were not for sale.^ 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! ^ Five years 
 later a 'thirtieth' is declared to be granted by the free- 
 holders, /r^ se et suis villanis^ and a distinction is drawn 
 between the villeins, and the poor having less than forty 
 pence ifi bojtis, who are to pay nothing.^ 
 
 It seems clear that the word villanus had undergone a Change in 
 change of meaning between the times when Domesday ofthe word 
 was compiled and when Bracton wrote under Henry III. 'villein.' 
 In Domesday the men who, though performing base ser- 
 vices, were still free, are carefully distinguished from the 
 servi. But both the villani and servi received, the one 
 their wages, the other their means of subsistence, in land, 
 which, however it might differ in quantity, was still held 
 by the same villein tenure, and for which they rendered . 
 services 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.'^ The great mass of the villeins, however, were The majority 
 still freemen, though subject to services of a base or servile norslaves 
 character. The word servtis disappeared as the name of 
 
 point in the development of constitutional principles, before the Great Charter.' 
 —See Stubbs, Select Chart. i6o. 
 * Rymer, i. 177. 
 
 2 Matt. Paris, 380 ; Select Chart. 351. 
 
 3 Rymer, i. 232. 
 
 ^ ' It may be doubted whether the word villani had during the twelfth cen- 
 tury fully acquired the meaning of servitude which was attached to it by the 
 later lawyers.' — Stubbs, Const. Hist. i. 431. 
 
3IO 
 
 Growth of Parliament. 
 
 [Ch. 
 
 The servi 
 of Domes- 
 day repre- 
 sented by 
 the later 
 nativi. 
 
 a class, but villeins, in the lower sense of the term, are 
 generally 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 
 {tempore Edw. L), where, in certain cases, it is specially 
 stated, villani sunt serviy or nativi)^ 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.- We are expressly told by Bracton 
 {temp. Hen. HI.), that a freeman might hold tenements in 
 
 ^ Rot. Hund. 324 ; Tenentes in villenagio sunt nativi de sanguine suo ; 
 327, tenentes in villenagio sunt ita servi et nativi quod non possunt maritare 
 filias suas sine licentia domini ; 329, sunt servi et villani de sanguine suo ; 
 822, De Nativis, Robertus Noreyes tenet unam virgatam in puro villenagio 
 et reddit per annum ii s. ii denar' et debet operari per totum annum et talliari, 
 et redimet pueros suos ad voluntatem domini. 
 
 [Nativi and villani were sometimes sold or granted away, at least to Holy 
 Church, but whether they were in consequence dislodged from their homes, 
 and transplanted to lands belonging to the Church or Convent to which they 
 were granted, is not clear from the charters cited. An interesting correspond- 
 ence, with extracts by Sir William Parker of Melford, Bart., from Norfolk 
 charters of the 12th and 13th centuries, is printed in The East Anglian, New 
 Series, Ipswich, 1885, Pt. II., pp. 27-9. The Rev. C. H. Evelyn White, 
 M. A. , the editor of the East Anglia?z, in a letter printed with the above corre- 
 spondence, suggests that Sir William Parker's cases of sales or grants of villani 
 'may be found to be somewhat exceptional,' apparently as grants to religious 
 houses. Sir William cites a sale, circa a.d. 1200, by Walter de Risby, to the 
 Sacrist of St. Edmund's Abbey [Bury St. Edmund's] of his villein, Walter 
 Fitz-Aylward, with all his progeny. It would have been well to have given 
 the descriptive epithet in the original. It seems to have been villanus. Again, 
 in a deed simply described as of the 13th century, Geoffrey Scallarius, son of 
 Hugo, gives to God and the Church of the Holy Trinity of London, and to 
 Richard, the Prior there, John, son of Robert de Wydehalle, his native bom 
 serf, with all his progeny now living, or which may be born to him, for ever, 
 with all their chattels, the Prior giving six marks in money. In 1182, Thomas 
 de Barewe, at the request of Sampson, Abbot of St. Edmund's, gives Seward 
 de Barewe, son of Aluric le-fader, with all his chattels and progeny, in pure 
 and perpetual charity, to God and to the Church of the Convent of St. 
 Edmund's. It may be questioned whether some of these nominal sales or gifts 
 were not practically manumissions. The language of some of the very interest- 
 ing manumissions cited by the late Mr. Haddan, from the Book of St. Chad, 
 Leofric's Missal, and other early texts, seems to bear a certain likeness to that 
 of these Norfolk gifts to God and Holy Church. Cf. Haddan and Stubbs, 
 Councils and Eccl. Doc. i. 206 seq.^ and cf. note,/^jA — Ed.] 
 
 ^ Placit. Abbrev. p. 25 : Et 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 vi llanos et 
 consuetudinarios predicti A. operando quidquid ipse precepit et dando mer- 
 chetam pro filiabus suis maritandis. 
 
VIII.] Growth of Parliament. • 3^^ 
 
 villeinage, in which case his personal liberty existed along 
 with the burthens of territorial servitude.^ He distin- 
 guishes two kinds of villeinage, socage and pure. The ViUein- 
 villani socmanni were bound to fixed service?, but while ^^,^^^^^2 
 they could not, so long as they performed the service due, villeins, 
 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 re- 
 linquished.^ The * pure ' villein, on the contrary, according 
 to Bracton, might be subjected to unlimited services and 
 burthens, nee seire debeat sero quid facere debeat in erastino, 
 . . . 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 freemen, and that only those specially 
 denominated nativi were * pure ' villeins^ — that is, in actual 
 serfdom or slavery.* 
 
 ^ 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. 
 
 2 Bracton, ii. 8. 
 
 3 [iv. 28. Cf. Digby, Hist. Law of Real Prop. p. 129.— Ed.] 
 
 ^ See especially 'Domesday of St. Paul's,' of the year 1222, edited for the 
 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 
 timeof 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 
 Tenentes [*libere,' 'antiquum tenementum,' 'de dominico,' 'per vilenagium,' 
 &C.J, the Operarii [persons holding land *ad operationem,' ?.<?., 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 * na« 
 tivi a principio ' . . belonged to it. . . The ordinary praedial services required 
 
^X2 
 
 Growth of Parliament. 
 
 [Ch. 
 
 Difference 
 between the 
 ancient 
 manor and 
 the modern 
 landed 
 estate. 
 
 Tendency in 
 the manor 
 towards 
 certainty of 
 tenure and 
 services. 
 
 Early estab- 
 lishment of 
 a money 
 economy in 
 England. 
 
 It IS important to bear in mind that manorial property 
 differed in many respects from the modern landed estate. 
 * It was not a breadth of land, which the lord might 
 cultivate or not as he pleased, suffer it to be inhabited, 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^ but 
 limited by law and custom. , . The demesne, the assised,^ 
 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.' ^ 
 
 The natural tendency of the Customary law by which 
 each manor was regulated was towards certainty ; certainty 
 of services, certainty of tenure. Accordingly we 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 economy, as opposed to the Medi- 
 aeval barter in kind, was established in England at a much 
 earlier period, and far more extensively than in the great 
 
 from the Tenentes 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 potestate 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. i. c. 6, lo. ) . . Under the manorial system all the 
 tenants performed prgedial services, but the higher was the rank of the tenant 
 the fewer services were due.' — Introd. pp. xxi., xxiii., xxvi. * I suspect,' says 
 Hallam, * that we go a great deal too far in setting down the descendants of 
 these ceorls— that is, the whole Anglo-Saxon population, 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 de- 
 ceived in fancying that the occupiers of villein tenements were usually villeins.* 
 —Middle Ages, iii. 261. [Cf Burton Chart., Derb. Arch. S., 1885, 153.— Ei>.] 
 
 ^ Assise(/la.nds = parts of the demesne granted out to tenants subsequently 
 to the original formation of the manor. 
 
 2 Hale, Domesday of St. Paul's, Introduct. xxxii.-iii. 
 
VIII. 3 Growth of Parliament. 313 
 
 inland countries of the European continent.^ 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 performance of the 
 services. This change was gradually carried out between Rise of the 
 the end of the thirteenth and the middle of the fifteenth fabourlrs.''^ 
 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 Transmuta- 
 of villeins, who gradually, by force of custom, developed vmein 
 from mere tenants-at-will into customary freeholders and tenure into 
 copyholders, with inheritable estates in their lands subject 
 to fixed services.^ The lowest class, the nativi^ still con- Gradual 
 tinued for a long time in a state of transition, their birth ti^n^^the 
 state of slavery presenting an almost insuperable 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 persist- 
 ently urged upon the lords, partly to the humane presump- 
 tions 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 
 
 ' Nasse, Agricultural Community of the Middle Ages (translated by Ouvry), 
 
 P- ^7- 
 
 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. 
 
 [Digby, Hist. Law of Real Property , p. 245, sets out the part which Custom 
 had in protecting the tenant in villeinage, and aiding his upward move. For 
 • Custom,' as Digby says, ' fixed the rights of the lord, the amount of service 
 to be rendered to him, the heriots upon the death of the tenant, the fine on the 
 admission of a new tenant, the mode of succession and devolution of the lands 
 to the tenant's eldest or youngest son, or to all the sons alike, and so forth.' 
 And these customs, he remarks, were * deeply rooted in the habits of the 
 people,' so much so, that 'from Bracton to Edw. IV. we hear this class of 
 tenants {i.e. in villeinage) spoken of as if they had a recognised and legally 
 protected interest in lands.' — Ed.] 
 
314 
 
 Growth of Parliament. 
 
 [Ch, 
 
 Statutes 
 
 regulating 
 
 labour. 
 
 Statute of 
 Labourers, 
 23 Edw. lilt 
 [1349.] 
 
 Discontent 
 of the 
 peasantry. 
 
 besides, practically escaped from servitude by flight to 
 distant counties, or sought the shelter of some city or 
 borough within whose hospitable walls unmolested residence 
 for a year and a day rendered them for ever freemen. 
 
 The dreadful pestilence of 1348, by greatly reducing 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 1 349, 
 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 compelled to hire himself to 
 any master who should demand his services, at such wages 
 as were paid three years previously, or for some time pre- 
 ceding. These statutes, whilst failing in the object which 
 they had in view, as appears by the frequent complaints of 
 the Commons that they were not kept, greatly increased 
 the general discontent of the peasantry .1 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, 
 
 ^ 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 apprenticed 
 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 perpetual 
 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. 
 
VIII.] Growth of Parliament 315 
 
 began to confederate for the purpose of resisting their lords. 
 A statute of the first year of Richard II., passed 'at the 
 grievous complaint of the Lords and Commons of the 
 Realm, as well men of Holy Church, as other,' for the 
 punishment of recalcitrant villeins, recites that ' villeins and 
 tenants of land in villeinage who owe services and customs 
 to their lords, had of late withdrawn their customs and 
 services from them, by comfort and procurement of others 
 their counsellors, maintainers, and abettors, who had taken 
 hire and profit of the said villeins and land tenants ; and 
 under colour of exemplifications out of Domesday Book 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 ; and did 
 menace the servants of their lords with peril to life and 
 limb, and what is more, did gather together in great routs, 
 and bind themselves mutually by such confederacy that 
 each one should aid the other to resist their lords with the 
 strong hand.' ^ It has been suggested, with much proba- 
 bility, that about this period the lords of manors who had 
 commuted the services of their tenants, attempted to reim- 
 pose the old predial burthens,^ and that this, in conjunction 
 with the irritating poll-tax of twelve pence a head exacted 
 from rich and poor alike,^ was the exciting cause of the 
 formidable insurrection of 1 381, in which all classes of the 
 villeins — free and slave — made common cause. The actual Demands of 
 demands of the insurgents were evidently framed so as to ving-J^^iP^^ 
 include the grievances of the free agricultural labourers as 1381. 
 
 1 I Ric. II. c. 6(Stat. Realm, ii. 2). [Cf. Burton Chart, y. D. A. S. 135.— Ed.] 
 " Thorold Rogers, History of Agriculture and Prices in England, a.d. 
 1259-1400 [i. 81-3. — Ed.] 
 
 •* It was ordered, however, that the richer should aid the poorer, and that 
 individual contributions might range from 20s. down to 4^. : que a la somme 
 totale accomptez en chescune Ville les suffisantz selonc leur afferant eident les 
 meindres ; Issint que les pluis sufifisantz ne paient oultre la somme de Ix Grotes 
 pur lui et pur sa femme, et nule persone meins q'un Grot pur lui et pur sa 
 femme. Rot. Pari. iii. 90. But this left much scope for oppression on the 
 part of the collectors of the tax. 
 
3 1 6 Growth of Parliament, [Ch. 
 
 well as of the nativi. They comprised, in addition to a 
 general pardon, (i) the abolition of slavery ; (2) a fixed rent 
 of fourpence the acre on lands instead of the predial ser- 
 vices due by tenure in villeinage ; and (3) freedom of com- 
 merce in market towns without toll or impost. 
 Reaction The immediate effect of the violence of the Democratic 
 
 Ins^urrection P^^^X ^^^ ^^ create a reaction of stern repression. The 
 of 1381. general charter of manumission (which was clearly illegal) 
 extorted from Richard by the rioters, was annulled by Royal 
 proclamation ^ and by statute, both Houses of ParHament 
 unanimously refusing to accept the King's offer to agree to 
 the entire abolition of 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 
 Decay and from perishing altogether in one day.' ^ But the Insurrec- 
 e!dinctk)n of ^^°^ ^^^ really the turning point in the history of predial 
 villeinage, servitude. 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 
 I state of servitude lingered on till the commencement of the 
 i seventeenth century, when it became extinct without any 
 \ legislative abolition.^ 
 
 * Rymer, iv. 126. 
 
 2 ' Ne jamais ne ferroient pur vivre et murrir touz en un jour.' — Rot. Pari, 
 iii. 100. 
 
 3 The last case in which villeinage was pleaded was that of Figg v. Caley 
 (Noy, R. 27), in the 15th of James I. The plaintiff, Pigg, sued the defendant 
 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 defendant 
 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 recognised by law. But in the Colonies it was legalised 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 when 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) ; 
 
VIII.] G^^owth of Parliament. 317 
 
 II. 1389 — 1397. During this period of nearly eight -SVr^'*^ 
 years, comparative harmony subsisted between Richard 138^1397. 
 and his Parliament. The events of the earlier part of his Apparent 
 reign had taught the King discretion, or possibly dissimu- between 
 lation ; and the return of John of Gaunt, who had been Richard 
 absent during the late revolutionary proceedings prose- parliament, 
 outing his claim to the throne of Castile, served to keep 
 his brother of Gloucester in check, and exercised a miti- 
 gating influence over the excited passions of all parties. 
 A revulsion of popular feeling, somewhat similar to that 
 which in later times brought about the restoration of 
 Charles II., seems to have set in; and the Parliament 
 during this period proved complacent and even obse- 
 quious. The popular leaders among the nobles were Division 
 moreover divided by personal jealousies, and thus the ^^^°!^s ^^ 
 Commons lacked the powerful support which they had nobles, 
 hitherto received. The series of truces with France ob- 
 viated the necessity for oppressive taxation. The Parlia- 
 ment refrained from interfering with the King's household 
 expenses, and repealed the statute by which Edward II. 
 had been deposed ; ^ 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 
 
 but the first express adjudication on the subject was not given till 1772, when 
 Lord Mansfield, in the celebrated case of the negro Sommersett, pronounced 
 the decision of the Court of King's Bench that slavery in England is illegal, 
 and that the negro must be set free. [Long before Holt and Mansfield, how- 
 ever, the distinguished Civilian, Sir Leoline Jenkins, had, in his Charge at an 
 Admiralty Sessions at the Old Bailey, in 1674-5, pronounced obiter that there 
 was * no such thing as a slave ' in England. See La-iv Magazine and Review, 
 No. cclvii., for Aug. 1885, where the Charge is edited with notes by Sir 
 Sherston Baker, Bart. The passage cited is on p. 424 of the Review. — Ed.] 
 (State Trials, xx. i. ; Broom, Const. Law) [Denman's ed., pp. 59-115. — Ed.] 
 Four years later, in the case of the negro Knight, the Court of Session in 
 Scotland declared the unlawfulness of negro-slavery in that country (Morison, 
 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. in. c. 56. Seven years later the Slave Trade was prohibited ; and 
 on the 1st of August, 1834, Colonial slavery itself was abolished. 
 1 Rot. Pari. iii. 286. 
 
3l8 Growth of Parliainent. [Ch. 
 
 by proclamation. 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 judg- 
 ment 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 ; the King protesting that his 
 complaisance on this occasion was not to be drawn into a 
 precedent.^ 
 Prosecution As soon however as Richard, having secured an alliance 
 of Haxey. ^^\\}ix the Royal family of France, and perceiving the dis- 
 union which existed among his principal nobility, fancied 
 himself secure upon his throne, he ventured once more to 
 indulge his natural arbitrary and tyrannical disposition. 
 His first * open defiance of Parliament and declaration of 
 arbitrary power ' was the prosecution in 1 397 of [Rev.] 
 Thomas Haxey, a priest, and probably a representative of 
 the clergy in the Lower House,^ who had introduced a Bill 
 complaining of maladministration and of the excessive 
 [Haxey's charges of the King's household. Its specific allegations 
 Bill.] ^ei-e . (j) That the statute requiring sheriffs and escheators 
 
 to be persons of sufficient lands and rent, and that they 
 should not retain office for more than a year, was not kept 
 or regarded. (2) In the Scottish March, great oppressions 
 and outrages were inflicted by the Scots, contrary to the 
 truces between the two kingdoms, and to the destruction 
 of the March and of the King's lieges : wherefore it was 
 prayed that a remedy might be ordained by the good dis- 
 cretion of the King and Lords. (3) That retainers f vadletz 
 
 1 Rot. Pari. iii. 258. 
 
 2 His name does not appear in any return of the elections to this Parliament, 
 but he was in all probability a proctor of the clergy attending Parliament 
 under the praemunientes clause. He was a canon of Southwell and afterwards 
 of York, where he was Treasurer in 1418, and his tomb still remains in the 
 Minster. — See Raine'sFabric Rolls of YorkMinster [Surtees Soc.],pp. 203 — 206 
 [where an interesting account is given of Haxey], and Stubbs, Const. Hist, 
 ii. 492. [In text, *Rev.' has been substituted for 'Sir/ which seemed mis- 
 leading. — Ed.] 
 
VIII.] Growth of Parliament. 319 
 
 appellez yomen') of the Lords (not being familiars and 
 menials with the Lords) wore liveries, contrary to the statute 
 passed with the object of preventing the maintenance and 
 duress, by colour of such liveries, done in the country, to 
 the oppression of the people and the disturbance of the 
 execution of the law. Wherefore the Commons prayed 
 that the said statute be kept, and a certain punishment be 
 ordained, by advice of the Lords, for those who failed to 
 observe it. (4) That the great and excessive charge of the 
 King's household should be amended and diminished : to 
 wit, of the multitude of bishops, who have lordships, and 
 with their retinue are supported by the King ; and also 
 of many ladies and their attendants who dwell in the 
 palace of the King and at his 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 Lan- 
 caster 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 remained passive while the Lords 
 and the King passed an ordinance, in the nature of 
 an ex post facto law, declaring it treason for any person 
 to move Parliament to remedy anything appertaining to 
 the King's person, rule, or royalty. Two days after 
 (Feb. 7), under this law, Haxey was condemned, on his 
 own confession, to suffer the punishment of a traitor.^ 
 
 1 Rot. Pari. iii. 340. In the recital of Haxey's Bill contained in the pardon 
 ultimately granted to him (Rot. Pat. 20 Ric. II. in Rot. Pari. iii. 407), he is also 
 made to complain of the imposition by the Pope of a tax of 4//. in the pound on the 
 clergy of the province of Canterbury : ' Et auxi [plese a les Communes d'Engle- 
 terre en cest present Parlement] de considerer, coment lui Seint Piere fist im- 
 posicion du clergie de la diocise de Caunterbirs de quatre deniers de la livere 
 I'an darrein, quel imposicion estoit expressement encauntre la Regalie nostre 
 Seigneur le Roi, a grand damage et destruction de la Clergie et de la Comun' 
 d'Engleterre, et adnuUement de les droitz de la Corone nostre dit Seigneur le 
 Roy, et ent ordener due remede en salvacion nostre dit Seigneur le Roy, et 
 son Roaume, pur Dieu, et en oevre de charitee.' 
 
 2 Rot. Pari. iii. 339, 341, 407, 408. As a clerk, his life was spared at the 
 intercession of the Bishops ; and a full pardon was granted him on the 27th 
 of May. 
 
Parliament, 
 
 320 Growth of Parliament. [Ch. 
 
 This violent proceeding was undoubtedly (to quote the 
 words used in Henry IV/s first Parliament, when the 
 Judgment was reversed in both Houses), *en anientisement 
 des custumes de lez communes, encontre droit et la curse 
 quel avoit este devant en Parlement/ ^ Since the 50th of 
 Edward HI., the right of the Commons to a control over 
 public expenditure, as well as to freedom of speech in Par- 
 liament, had been established by its frequent and effective 
 exercise. 
 Third HI. 1 397 — 1 399. The prosecution of Haxey was quickly 
 
 n97-n99 followed up by the execution of the King's long-cherished 
 Despotic project of revenge, the first step towards which was the 
 RiTharT ° seizure of the Duke of Gloucester and the Earls of Warwick 
 and Arundel (three out of the five 'Lords Appellant'). 
 Servility of The conduct of the Parliament was so servile, as to render 
 probable the statement of the anonymous monk of Eve- 
 sham in his life of Richard W.^ 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. In the short Parliament of Shrewsbury, which 
 met on the 28th of January, 1398, and sat only to the 
 end of the month, the proceedings of the Parliaments of 
 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.^ An attempt 
 was also made to bind future Parliaments by enacting that 
 
 ^ Rot. Pari. iii. 438, 480. 
 
 - Vita Ricardi (ed. Hearne^, 133. There is reason to believe that this Par- 
 liament was also packed. Otterbourne (p. 191) says that the knights re- 
 turned were elected ' non per communitatem, ut mos exigit, sed per regiam 
 voluntatem.' 
 
 3 See Hallam, Middle Ages, iii. 77 ; and for a detailed account, Stubbs, 
 Const. Hist. ii. 497. 
 
VIII.] Growth of Parliament. 321 
 
 every judgment, statute, or ordinance, made in the present 
 Parliament, 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 be adjudged, and have 
 execution as, a traitor to the King and the Realm.^ The Grant to 
 Commons then set the dangerous precedent of granting ^ revenue 
 the King a tax (upon wool and hides) for the term of his for life. 
 life.^ The concluding 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 appoint a Committee to Appoint- 
 hear and determine such petitions as had not been an- eighteen 
 swered during the sitting of Parliament. Accordingly a Commis- 
 Committee of twelve peers and six commoners was ap- 
 pointed to sit after the dissolution of Parliament. It is 
 evident that no further power was 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 who usurp 
 complete rights of the Legislature, and exercised all the o/paruT-'^^ 
 powers and functions of a full Parliament.^ ™ente 
 
 The obscure quarrel between the Dukes of Hereford Quarrel and 
 and Norfolk (the two remaining * Lords Appellant ') gave of Hereford 
 Richard an excuse for banishing them both. The King ^"^ Norfolk, 
 was now triumphant over all his enemies. The grant of a ^e™^j^!i ° 
 revenue for life relieved him from the necessity of sum- 
 moning a Parliament. The Committee of Eighteen issued 
 
 * Rot. Pari. iii. 350-352. 
 
 2 Rot. Pari. iii. 368. 
 
 3 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, 
 cartas petitiones in eodem ParUamento porrectas protunc minima expeditas,' 
 the impeachment continues : ' Cujus concessionis colore Persone sic de- 
 putate processerunt ad alia generaliter Parliamentum illud tangentia ; at 
 hoc de voluntate regis : in derogationem Status Parliament!, et in magnum 
 incomodum totius Regni, at perniciosum examplum. Et ut super factis aorum 
 hujusmodi aliquam coloram et auctoritatem viderentur habere, Rax fecit Rotulos 
 Parliament! pro voto sue mutari et deleri, contra effactum concessionis prae- 
 dictae.' — Ibid. p. 418. 
 
 C.H. Y 
 
tion. 
 
 322 Growth of Parliament, [Ch. viii. 
 
 ordinances at the King's will, and decreed the penalties of 
 treason against all who should disobey them ; and a 
 former declaration of the two Houses, that the King's pre- 
 rogative was as free and unimpaired as that of any of his 
 predecessors,^ 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 
 His deposi- alienated all classes of the nation, and speedily led to his 
 deposition. The time had now come of which the Par- 
 liament had warned the King in 1386, when it became 
 * lawful for his people, by their full and free assent and 
 consent, to depose the King from his royal throne, and in his 
 stead to raise up some other of the Royal race upon the 
 same.'^ 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 Rot. Pari. IS Ric. II. iii. 279, - Knyghton, col. 2683. 
 
 3 Rot. Pari. iii. 416-424. 
 
 [On villeins and their contests with their lords, as well as on the general 
 question of their condition, reference may be made to the Derbyshire portion 
 of the Burton Chartulary, nth- 14th centuries, edited by Gen. Hon. 
 George Wrottesley, in the Journal of the Derbyshire Archceological Society for 
 1885. I have cited it in notes to this chapter as Burton Chart. The long 
 contest between the Abbots of Burton and their villein tenants in Magna 
 Oufra [Mickleover], who claimed to be free tenants, is very instructive as to 
 I Ric. II. c. 6. Gen. Wrottesley holds (op. cit. 153), that ' the villanusy in 
 fact, was really a well-to-do and usually prosperous tenant with fixity of 
 tenure.' This seems rather too optimistic for a general statement of the 
 villein's position. With regard to the true date of the extinction of villeinage, 
 cf. Arch. Rev. 1888, vol. i. p. 444, Art. by Prof. Kovalevsky, who gives, from 
 the Record Office, the text of two petitions addressed to Oliver Cromwell, as 
 Lord Protector, by the tenants of Thomas Dykes, Esq. , of Warthold, Cumber- 
 land, 1651, and by 'divers well affected persons in Lancashire and Cheshire 
 counties against oppressing landlords,' 1654. On nativi^ called Betaghs, or 
 betagiiy zx^ou gavellarii, near Dublin, 14th cent., cf. Paper by Mr. Jas. Mills, 
 Journ. R. S. Ant. Irel. 1890, N. S. vol. i. No. i, p. 54. Augustinus, son of 
 Michael McClerchse, gave to Abp. Fulc, 1256-71, the land of Balyoroylf, with 
 the Irish of both sexes which he had or ought to have in that town. Lib 
 Nig. Alaniy 318, cited u, s. — Ed.] 
 
323 
 
 CHAPTER IX. 
 
 PARLIAMENT UNDER THE LANCASTRIAN AND 
 YORKIST KINGS. 
 
 (1399— 1485.) 
 
 HENRY IV., HENRY V., HENRY VI., EDWARD IV., EDWARD V., 
 RICHARD III. 
 
 Under the Lancastrian Kings the Parliament was The Lan- 
 occupied rather in the consolidation and reg-ulation of^^^t"^"^ 
 
 ^ ° period : 
 
 the results of former contests with the Crown than in the its charac- 
 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 grievances, 
 examining public accounts, controlling the internal ad- 
 ministration, 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.^ During the 
 latter half of the 15th century, the House of Commons 
 became much less independent than it had been under 
 Edward III., Richard II., or Henry IV. The Wars of the 
 Roses in the first place enhanced the power of the nobles 
 
 ^ * C'est une epoque plus remarquable par certains perfectionnements dans 
 les ressorts du gouvernement parlementaire, que par la conquete de grands 
 droits et par la formation d'institutions fondamentales. ' — Guizot, Hist, du 
 Gouv. Repres. ii. 413. 
 
 Y 2 
 
324 
 
 Parliament under the 
 
 [Ch. 
 
 Increased 
 importance 
 of the 
 Commons. 
 
 Taxation : 
 conditional 
 grants, ap- 
 propriation 
 of supplies, 
 examination 
 of accounts. 
 
 at the expense of the Commons, who' proved invariably 
 ready to give a Parliamentary sanction to the claims of a 
 victorious military leader ; and, finally, by almost annihi- 
 lating the ancient nobility, left the Lower House to face 
 unaided the augmented power of the Crown. But the 
 growing importance of the popular assembly is proved by 
 the attempts, which were now systematically 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 representative of a borough con- 
 stituency, became an object of ambition 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.^ 
 
 Instances of illegal taxation are very rare under the 
 Lancastrian Kings. Under Richard II. the system of 
 forced loans, of which we find the Commons complaining 
 for the first time in the second 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 its members did not pretend to charge 
 any besides themselves.^ There is also an instance during 
 the minority of Henry VI., of illegal conduct with respect 
 
 1 Midd. Ages, iii. 119. 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. [337] 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 
 that my Lord have at this tyme in the Parlement suche persones as longe unto 
 him, and be of his menyall servaunts, wherin we conceyve your good will and 
 diligence shal be right expedient.' The 'menyall servaunts' were 'our 
 right welbelovid cosin and servaunts, John Howard and Syr Roger Cham- 
 birlayn.' In vol. ii[i]. p. [51], is a letter to the bailiff" of Maldon recommend- 
 ing the election of Sir John Paston. — See also Freeman, Growth of Eng. Const, 
 p. 197. [Paston Letters, supra, from Gairdner's ed., 1872-5. — Ed.}. 
 
 2 Rot. Pari. 2 Ric. II. iii. 62. 
 
 3 Hallam, Midd. Ages, iii. 85. 
 
IX-] Lancastrian and Yorkist Kings. 325 
 
 to a conditional grant of a subsidy ; the Duke of Bedford 
 and other lords having subsequently declared in Parlia- 
 ment, with the advice of the Judges, and others learned in 
 the law, that the said subsidy was to be at all events col- 
 lected and levied for the King's use, notwithstanding any 
 condition in the grant.^ But these were merely occasional 
 exceptions to the admitted legal rule. In the same Par- 
 liament the Commons, in making a fresh grant, not only 
 renewed the former conditions, but appropriated 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.' ^ Similar precautions had been taken 
 in the grants made to Henry IV. In the 6th year of his 
 reign (1404) the Commons granted a large subsidy on 
 condition that it should be expended for the defence of 
 the kingdom according to the form and extent of the 
 grant, and not otherwise, and two treasurers of war, 
 Thomas, Lord Furnivall, and Sir John Pelham, were ap- 
 pointed and sworn in Parliament to receive it, and account 
 to the Commons at the next Parliament.^ Thus, condi- 
 tional grants, appropriation of supplies, and examination of 
 accounts became the established usage. 
 
 The dependence of supplies on the redress of grievances Dependence 
 originated under Richard II. It had previously been ^g^f^^g^^ Jf°^ 
 usual for the King not to answer petitions until the last grievances. 
 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 II.'s 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,* but the 
 practice gradually gained ground. 
 
 In 1407 (9 Henry IV.) a proceeding took place which is First coiii- 
 
 sion between 
 
 1 Rot. Pari. iv. 301. 
 3 Id. p. 303. 
 3 Id. iii. 546. 
 * Id. p. 453. 
 
326 
 
 Parliament under the 
 
 [Ch. 
 
 the two 
 Houses. 
 
 All money 
 bills must 
 originate 
 in the 
 Commons. 
 
 The King 
 ought not 
 to notice 
 matters 
 pending in 
 Parliament. 
 
 interesting both as the first instance of a collision between 
 the two Houses, and as the earliest authority for what are 
 now two well-known axioms of Parliamentary law, viz.: (i) 
 That all Money Bills must originate in the House of Com- 
 mons, and (2) that the King ought not to take notice of 
 matters debated in Parliament, until a decision be come to 
 by both Houses, and such decision be regularly brought 
 before him. It appears that the Lords, in the King's 
 presence, had held a debate on the state of the kingdom, 
 and in answer to his demands, had specified certain 
 subsidies as being requisite for the national defence. The 
 King then requested the Commons to send a deputation to 
 the House of Lords to hear and report to their fellows what 
 they should have in command from the King, ' 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 report to the rest of 
 the Lower House, who were thereupon ' greatly disturbed 
 at it, saying and affirming it to be much to the prejudice 
 and derogation of their liberties.' * And after that our lord 
 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 turn against the liberty 
 of the Estate for which they are come to Parliament,^ nor 
 against the liberties of the Lords, — wills and grants, and 
 declares, by the advice and assent of the Lords, in manner 
 following : that it shall be lawful for the Lords to commune 
 amongst themselves in this present Parliament, and in every 
 
 1 The true position of the House of Commons as not being in itself an 
 Estate 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 were regarded as 
 in effect procurators and attorneys for the whole. At this period the Parlia- 
 mentary franchise was at its maximum ; under Henry VI. it sank to its mini- 
 mum. Subsequent extensions of the suffrage have been merely attempts to 
 render the essentially representative character of the Commons' House more 
 real and national. [As to Extensions of the Suffrage, and their effect, see 
 postf Appendices. — Ed.] 
 
IX.] Lancastrian and Yorkist Kings, 327 
 
 other in time to come, in the absence of the King, of the 
 state of the realm, and of the remedy necessary for the 
 same. And that in like manner it shall be Xd^NiyA for the 
 Commons, on their part, to comm,une 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 our said lord the King of any grant by the 
 Commons granted, a7id by the Lords assented to, nor of the 
 communications of the said grant, before the Lords and 
 Commons shall be of one assent and one accord in such 
 matters, and then in manner and form accustomed, that is 
 to say, by the mouth of the Speaker of the Commons, in order 
 that the Lords and Commons may have their will (lour 
 gree) of our said lord the King.' ^ 
 
 Originally, jio^onl}^ grants of money but, as we have Petitions 
 seen, almost all statutes originated in the proceedings of form of 
 the House of TTommons. The practice of drawing up the complete 
 statutes from the petitions and answers after the session of under the 
 Parliament had closed, led to the commission of frequent "^^^^^ 
 frauds on the part of the King's officers, who often entered 
 Acts of Parliament on the rolls, differing materially from 
 what the Commons had petitioned for, and the King 
 granted.^ During the fourteenth and fifteenth centuries 
 many attempts were made by the Commons, from time to 
 time, to remedy this abuse. In 1414 (2nd Henry V.) they 
 presented a petition to the King, which is not only impor- 
 tant on account of its subject matter, but interesting as the 
 earliest instance in which the House of Commons adopted 
 the English language in their petitions.^ After asserting that 
 
 1 Rot. Pari. iii. 6ii. 
 
 2 [This was a very important matter, and affected also the Records of 
 Chancery. Mr. Clifford, Hist. Private Bill Legislation, vol. i. 325, cites a 
 case in 1404, where the Commons complained that a Subsidy Act had been 
 entered on the Rolls of Chancery in a form contrary to the actual grant by them, 
 and prayed for the declaration of their intention in making the grant in the then 
 sitting Parliament, and for instructions to be given to the Barons of the Ex- 
 chequer that the subsidy should not be levied in its untrue form. The same 
 danger was probably the moving cause of the demand of the Commons in 1406 
 that ' certeins de les Communes ' should be present at the engrossment of the 
 Rolls of Parliament. — Ed.] 
 
 3 Hallam, Midd. Ages, iii. 90. As early as 1363, the Chancellor addressed 
 the Parliament in English in his opening address. Rot. Pari. ii. 283. 
 
328 Parliament undei^ the [Ch. 
 
 it had ever been their liberty and freedom that there should 
 be no statute or law made unless with their assent, the 
 Commons proceed : * Consideringe that the Comune of 
 youre lond, the whiche that is, and ever hath be, a membre 
 of youre Parlement, ben as well Asse7itirs as Peticioners, that 
 fro this tyme foreward, by compleynte of the Comune of 
 eny myschief axkynge remedie by mouthe of their Speker 
 for the Comune, other ellys by Petition writen, that ther 
 never be no Lawe made theruppon, and engrosed as Statut 
 and Lawe, nother by addicions, nother by diminucions, by 
 no maner of terme ne termes, the whiche that sholde 
 chaunge the sentence, and the entente axked by the Speker 
 mouthe, or the Petitions biforesaid yeven up yn writyng by 
 the manere forsaid, withoute assent of the forsaid Comune. 
 Consideringe oure soverain lord, that it is not in no wyse 
 the entente of youre Comunes, zif hit be so that they axke 
 you by spekying, or by writyng, too thynges or three, or as 
 manye as theym lust : But that ever it stande in the fredom 
 of your hie Regalie, to graunte whiche of thoo that you 
 luste, and to werune the remanent' In reply the King, ' of 
 his grace especial graunteth that fro hensforth no thyng be 
 enacted to the Peticions of his Comune, that be co7iti'arie of 
 hir askyng, wharby they shuld be bounde withoute their assent. 
 Savyng alwey to our liege Lord his real Prerogatif, to 
 graunte and denye what him lust of their Petitions and 
 askynges aforesaide.' ^ Under Henry VI., the Commons 
 made an apparently formal but essentially important inno- 
 vation, by introducing complete statutes under the name 
 of Bills — petitiones formain actuum in se continerites? 
 These were sent up to the Lords, and if passed there, 
 presented to the King to be accepted or rejected simply, 
 without any alteration. Later on the House of Lords 
 also began to originate Bills, which were sent thence to the 
 Commons ; and it gradually became the established rule of 
 Parliament, that with the exception of Money-Bills, which 
 
 1 Rot. Pari. iv. 22. 
 
 3 Ruflfhead's Statutes, i. 16 (pref.). 
 
IX.] Lancastrian and Yorkist Kings. 329 
 
 must come from the Commons, and of Bills affecting the 
 Peerage (e.g., for the restitution of forfeited honours), which 
 must come from the Lords, all other Bills might be origi- 
 nated in either House. 
 
 The legislative authority of Parliament was still often Dispensing 
 rendered nugatory by the exercise of the Dispensing and pending 
 
 Suspendinsf powers of the Crown. These two terms ^.xq powers of 
 
 ^ ^ ^ ,11- ^^^ Crown. 
 
 frequently used indiscrimmately ; but there is a very ap- 
 preciable difference in their strict signification, (i) The 
 Dispensing power consisted in the exemption of particular 
 persons, under special circumstances, from the operation 
 of penal laws ; being, in fact, an anticipatory exercise of 
 the undoubted right of the King to pardon individual 
 offenders.^ (2) The Suspending power was employed in 
 nullifying the entire operation of any statute or any 
 number of statutes ; and was in its nature incompatible 
 with the existence of Constitutional government. 
 
 This encroachment on the liberty of the subject appears 
 to have been derived from the practice of the Papacy, 
 whose example in issuing Bulls ^ non obstante any law to 
 the contrary,' was soon followed by our Kings in their 
 proclamations, grants, and writs.^ Henry HI. was perhaps 
 the first to make use of the non obstante clause, and his 
 successors throughout the Plantagenet period frequently 
 exerted both the Dispensing and Suspending power. It was 
 
 ^ * To pardon a criminal, after he has been guilty, is indeed less dangerous to 
 society than to give a previous indulgence to the commission of crimes ; but in 
 a rude age this difference is likely to be overlooked. Hence the origin of the 
 dispensing power . . . which, as long as it was kept within a narrow 
 compass, appears to have excited little attention.'— Millar, Hist. Eng. Gov. 
 
 ii. 405- 
 
 2 [Canon Robertson, Hist. Christ. Church, 1874, vi. p. 407, states that the 
 documents by which patronage was usurped by the Popes were ' from the time of 
 Innocent IV. (1243-54) rendered more peremptory by the introduction of the 
 phrases de plenitudine potestatis and non obstantibus,'' and notes that ' a great 
 outcry was raised in England when a like favour was claimed for the king by 
 introducing the words non obstantibus into secular documents, A.D. 125 1.' 
 Prynne's date, 1250-54, Animad. 4th Inst. 133, is fairly close to the 
 history of the clause in Papal Provisions. Bp. Grossetete called it * the un- 
 holy non obstante clause, ' and declared that resistance to it in Papal documents 
 was ' not rebellion, but an act of imperative duty. ' — Greenwood, Cathedra 
 Petri, Suppl. vol., p. 183.— Ed.] 
 
330 Parliament tinder the [Ch. 
 
 usually, however, only asserted in matters of small moment, 
 and even then it was not allowed to pass without remon- 
 strance and attempts at restraining it. Matthew Paris 
 relates that when Henry III. on one occasion justified his 
 use of the clause non obstmite by quoting the authority of 
 the Pope, he was interrupted by the Prior of the Hospital- 
 lers ^ with * What is that you say, my lord King ? Far be 
 it that such a graceless and absurd speech {yerbum illepidum 
 et absurdum) should proceed from your mouth. As long 
 as you observe justice you will be King, but so soon as you 
 infringe it you will cease to be King.' To which, continues 
 the chronicler, the King too hastily replied : ' What do 
 you mean by that, you English, do you wish to cast me 
 down from my kingdom, as was my father before me, and 
 then to slay me } ' ^ 
 
 In the 15th of Richard 11. (1391), the Commons 'for the 
 great affiance that they have in the person of our lord the 
 King, and in his very excellent sense, and in the great 
 regard which he has for his crown and the rights of the 
 same, and also in the noble and high discretion of the 
 Lords, assented, in full Parliament, that the King, by the 
 advice and assent of the said Lords, might make such suf- 
 ference respecting the Statute of Provisors as should seem 
 reasonable and profitable to him until the next Parliament, 
 but so that the said statute be not repealed in any article of 
 the same ; and, moreover, that the Commons may disagree 
 thereto at the said next Parliament and resort to the 
 
 ^ ' Magister Hospitalis Hierosolymitani in domo de Clerkenwelle, quern 
 Priorem appellant.' The official here referred to was probably Joseph de 
 Chauncey, Prior 1270-1280 (Kemble, Introd. to the Knights Hospitallers in 
 England, Camden Soc, p. Ixvii.). [ ' Graceless ' hardly seems a good transla- 
 tion of illepidum, but the Prior of the Hospitallers doubtless meant some- 
 thing stronger than 'inelegant.' — Ed.] 
 
 2 Matt. Paris, Hist. Major, 854 (ed. 1640). [The words of the Grand Prior 
 of the Hospitallers sound like a sort of echo of the historic language of the 
 Cortes of Aragon on the accession of a King : * Thou shalt swear to respect 
 our rights and liberties. If thou dost, thou shalt be our King : if not, thou 
 shalt not be our King.' M. Boutmy cites these words in illustration of the 
 attitude of the English Convention Parliament towards WiUiam of Orange and 
 the Princess Mary. Nouv. Rev. Hist, de Droit, 1878, p. 54, Art. Les Sources 
 de la Const. Angl. — Ed.] 
 
IX.] Lancastrian and Yorkist Kings. 331 
 
 statute ; ' protesting, at the same time, that this assent 
 * which was a novelty and had never been given before ' 
 should not be drawn into precedent. The same limited 
 power of suspension was renewed in Henry IV. 's Parlia- 
 ments.^ But in the ist of Henry V., when the Commons 
 prayed that the statute for driving aliens out of the king- 
 dom might be executed, the King granted their request 
 with a proviso that he might dispense with the statute 
 when he pleased. In 1444, however, it was specially 
 enacted by a statute which declared void all patents to 
 hold the office of sheriff for more than a year, not only that 
 the King should not dispense with this provision, but that 
 all pardons and remissions of penalties granted by him to 
 persons acting contrary to it, should be of no effect.^ A 
 constant struggle respecting the exercise of this prerogative 
 seems to have been maintained for centuries between the 
 Crown and the upholders of Constitutional freedom, in 
 which sometimes one side prevailed and sometimes the 
 other.^ In Henry VII.'s reign it was decided that the 
 King could not dispense with penalties for an act which 
 was malum in se (against Common Law) ; but that he could 
 do so with respect to an act which was malum prohibitum 
 merely (that is, an offence created by Statute).^ Subject 
 to this restriction, and some others, the Dispensing and 
 Suspending power[s were] repeatedly exercised during the 
 1 6th and 17th centuries, and acknowledged as a legal 
 prerogative of the Crown. Under the Stuarts [they] began 
 to be more frequently abused ; and the determination of 
 James II. to employ [them] as a means of abrogating the 
 fundamental laws of the Kingdom eventually cost him his 
 Crown. The obnoxious prerogative was finally abolished 
 by the Bill of Rights.^ 
 
 1 Rot. Pari. iii. 285, 301. [These seem to be, technically, at least, in- 
 stances of a Parliamentary, not a Prerogative, suspension. — Ed.] 
 
 2 23 Hen. VI. c. 8. 
 
 3 The conflicting authorities on the legality of the dispensing power are 
 summarised in the note to the Seven Bishops' case in Broom's Const. Law 
 [Denman's ed., 492-506. — Ed.] 
 
 "* Ibid. loc. cit. 
 
 ^ [M, Boutmy, in a note to his Art., Les Sources de la Const. Angl., criticises 
 
33 2 Parliament under the Ch. 
 
 Right of jjjg right of enquiring into public abuses, and controlling 
 
 into public the Royal administration of both home and foreign affairs, 
 controlUng ^^^ frequently exercised by the Commons during the 
 the Royal Lancastrian period. 
 
 tion. -'■^ ^^ 5th of Henry IV. the Commons requested the 
 
 King to remove several of his Ministers, together with his 
 confessor, and although the King protested that he knew 
 of no cause or occasion for their removal, yet being assured 
 that whatever the Lords and Commons did or ordained 
 was for the benefit of himself and kingdom, he removed 
 them ; adding that he would do as much by any other 
 about his person whom he should find to have excited the 
 hatred or indignation of his people.^ 
 Unlearned The 'Unlearned Pariiament,' as that of the 6th of 
 
 PaTltcinteut . 
 
 Henry IV. was termed because lawyers were excluded 
 
 from it, rescinded the grants already made by the Crown, 
 
 and prohibited the King from alienating the ancient 
 
 Royal inheritance without consent of Parliament ;2 thus 
 
 reasserting the ancient control which the Witan had 
 
 exercised over the granting out of the Folkland before it 
 
 developed into Terra Regis. 
 
 Petition of Jn^the 8th of Henry IV. (1406) the Commons presented 
 
 Articles. their famous Petition of Thirty-one Articles, which Hallam 
 
 8 Hen. IV. ]^^g characterised as ' a aoble fabric of constitutional liberty, 
 1400. _ 
 
 and hardly perhaps inferior to the Petition of Right under 
 
 Charles I.' Henry accepted all the articles without reserve. 
 
 Thelnost important provisions were : (i.) the King * should 
 
 elect and name sixteen counsellors and officers pleasing to 
 
 God and agreeable to his people, on whom he could rely, 
 
 to advise him and be of his Continual Council until the 
 
 next Parliament, and a reasonable number of whom should 
 
 the attenuated condemnation of the Dispensing Power implied in the words * as 
 it hath beene assumed and exercised of late.' * C'etait reconnattre,' M. Boutmy 
 forcibly remarks, * qu'il existait encore, et qu'il etait en principe legitime. ' 
 Nouv. Rev. Hist, de Droit, 1878, p. 65, note i. This attenuation in the 
 Declaration of Right, however, disappears in sec. xii. of the Bill of Rights 
 —Ed.] 
 
 1 Rot. Pari. iii. 525. 
 
 2 Rot. Pari. iii. 547. 
 
IX.] Lancastrian and Yorkist Kings. 333 
 
 be continually about his person ' : none of them to be 
 dismissed without conviction of misdemeanour, (ii.) The 
 Chancellor and Privy Seal should pass no grant or other 
 matter of the Seals contrary to law, or delay any which 
 ought to be passed, (iii.) Persons about the court stirring 
 up the King's or Queen's minds against any of their lieges, 
 and duly convicted thereof, to lose their offices and be 
 fined. The King's ordinary revenue (vi.) should be wholly 
 appropriated to his household and the payment of his 
 debts ; no grant of wardship or other profit to be made 
 thereout, nor any forfeiture to be pardoned. The King, 
 (viii.) 'considering the wise governance of other well governed 
 Christian princes, and conforming himself thereto,' was to 
 assign two days in the week for the reception of petitions, 
 ' it being a most honourable and necessary thing, that such 
 of his Heges as desired to petition him should be heard.' No 
 officer of the Treasury, Chancery, or the Household, to enjoy 
 his place for life or term of years ; he should personally per- 
 form his duties, without appointing a substitute, or letting 
 his office to farm. No petition (ix.) to be presented to the 
 King by any of his household at times when the Council 
 were not sitting. The Council (x.) should determine nothing 
 cognisable at common law, unless for a reasonable cause 
 and by the advice of the Judges. The statutes and ordi- 
 nances (xi.) 'regulating purveyance, both those of the house- 
 hold and those made in Parliament, were affirmed. Abuses 
 of various kinds (xii.-xxii.) in the Council and the Courts of 
 Justice, including bribery and the exaction of excessive 
 fees, were enumerated and forbidden ; and the election of 
 knights of the shire (xxiii.) regulated. The Council and 
 chief officers of state (xxiv.) were to be sworn in Parlia- 
 ment to observe the common law of the land, and the 
 statutes and ordinances before made and ordained, as well 
 for the King's household as for the good government of 
 the realm of England. The administration of the Courts 
 of Law and of the Household (xxvi.-xxx.) was to be 
 regulated, and full enquiry made by the Chancellor and 
 Treasurer of England, seneschal and treasurer of the house- 
 
334 
 
 Parliament under the 
 
 [Ch. 
 
 Right of the 
 Commons to 
 be consulted 
 as to peace 
 or war and 
 in all ques- 
 tions of 
 national 
 interest. 
 
 Impeach- 
 ment. 
 
 hold, the Justices of either bench and the Barons of the 
 Exchequer, each in his place and office, into all torts, 
 oppressions and defaults done to the people who had had 
 business therein, and a report sent in to the Great Council in 
 order that full and due correction might be made. Finally 
 (xxxi.), these Articles should be in force only from the 
 beginning of the then present Parliament until the close of 
 the next.i 
 
 The right to be consulted in questions of war and peace, 
 which the Commons had established under Edward III., 
 ^cndMiiaintained under Richard II., was extended under the 
 Lancastrians so as to include all questions of national 
 interest. In the 4th of Henry V. the Parliament confirmed 
 the League between the King and the Emperor Sigismund ; 
 and the important Treaty of Troyes was similarly sub- 
 mitted to and ratified by both Houses.^ By one of the 
 articles of this Treaty it was stipulated that no negotiations 
 with the Dauphin should be undertaken without the con- 
 sent of the three Estates of both kingdoms. Accordingly, 
 under Henry VI. both Houses of Parliament granted leave 
 to Commissioners on the King's behalf to treat of peace 
 with France. In the same reign, Parliament also concurred 
 in the appointment of Commissioners to treat of the deliver- 
 ance of the King of Scots ; in the grant of denization 
 to the Duchesses of Gloucester and Bedford ; and in 
 the appointment of mediators to reconcile the Dukes of 
 Gloucester and Burgundy.^ 
 
 The right of impeaching Ministers lay dormant from the 
 reign of Richard II. to the 28th year of Henry VI. ; unless 
 we may regard as an informal exercise of it the proceeding 
 of the Commons in the ist of Henry IV., when, without 
 preferring specific articles of accusation, they petitioned 
 the King that Justice Rickhill, who had been employed to 
 take the late Duke of Gloucester's confession at Calais, and 
 
 1 Rot. Pari. 8 Hen. IV., iii. 585-9. 
 
 2 Rot. Pari. iv. 98, 135 {Xres status Regni approbarunt\ 
 
 3 Rot. Pari. iv. 211, 242, 277, 371. 
 
IX.] Lancastrian and Yorkist Kings. 335 
 
 the Lords who had formerly appealed the Duke and his 
 associates of treason, should be put on their defence 
 before the Peers.^ In_2449j28 Henry VI.) the Commons 
 determined to prosecute the Duke of Suffolk, William de 
 la Pole (grandson of Michael), on charges of high treasop, 
 chiefly relating to his conduct in France while negotiating 
 the unpopular marriage of the King with Margaret of 
 Anjou. The Judicial power, which had at one time lodged 
 in the whole Parliament, had been declared in 1 399, at the 
 suggestion of the Commons themselves, to reside in the 
 Lords only.2 In Impeachments the Commons are only 
 accusers and advocates, while the Lords alone are judges 
 of the crime. But in Suffolk's case the Commons appear 
 to have been desirous of a voice in the judgment as well 
 as in the accusation, and accordingly proceeded by what 
 appears to have been a Bill of Attamdef.^ But the process Bills of 
 was tainted'by much irregularity, of which the King took ^^t^^"^e>'- 
 advantage, and, in order to screen his favourite Minister 
 and save the life of a probably innocent man, banished him 
 for five years. Suffolk had abstained from putting him- 
 self upon his peerage, and while protesting his innocence, 
 placed himself entirely in the King's hands : the King 
 moreover declared that he acted by his own advice and not 
 that of the Lords, and not by way of judgment, but on the 
 ground of the Duke's submission. But the proceeding 
 was rightly regarded as an illegal stretch of prerogative, 
 
 1 Rot. Pari. iii. 430, 449. 
 
 2 Ibid. iii. 427. [Les Juggementz du Parlement appertiegnent soulement au 
 Roy & as Seignrs.] 
 
 ^ ' The proceedings of Parliament in passing bills of attainder, and of pains 
 and penalties, do not vary from those adopted in regard to other bills. They 
 may be introduced into either house, but ordinarily commence in the House of 
 Lords : they pass through the same stages ; and, when agreed to by both 
 Houses, they receive the royal assent in the usual form. But the parties who 
 are subjected to these proceedings are admitted to defend themselves by counsel 
 and witnesses before both houses ; and the solemnity of the proceeding would 
 cause measures to be taken to enforce the attendance of members upon their 
 service in Parliament. In evil times this summary power of Parliament to 
 punish criminals by statute has been perverted and abused ; and in the best of 
 times it should be regarded with jealousy ; but, whenever a fitting occasion 
 arises for its exercise, it is undoubtedly the highest form of parliamentary 
 judicature.'— May, Pari. Pract. [1883], p. [744]. 
 
33^ Parliament under the [Ch. 
 
 and was immediately protested against by the Lords, who 
 declared that it should form no precedent to bar them or 
 their heirs of the privileges of peerage.^ 
 Privileges of It was under the Lancastrian kings that the Privileges of 
 Parliament. Parliament first began to attract attention. 
 
 As enjoyed by either House, in its collective capacity 
 or in the persons of its individual members, these privi- 
 leges are various and important. They all rest either 
 upon the ancient law and custom of Parliament solely, 
 or upon that law and custom as defined by statute. 
 Three of them claim special attention : (i) freedom of 
 speech ; (2) freedom from arrest and special protection 
 against assault ; (3) the right of the Commons to deter- 
 mine contested elections.^ 
 (i.) Free- I. Freedom of Speech, the essential attribute of every 
 
 speech. ^"^^^ Legislature, may be regarded as inherent in the con- 
 stitution of Parliament. At an early period it was recog- 
 nised and confirmed as the law of the land. * The Com- 
 mons did oftentimes, under Edward IIL,' says Elsynge,^ 
 ' discuss and debate amongst themselves many things 
 concerning the king's prerogative, and agreed upon 
 petitions for laws to be made directly against his pre- 
 rogative, as may appear by divers of the said petitions, yet 
 they were never interrupted in their consultations, nor re- 
 ceived check for the same, as may appear also by the 
 answers to the said petitions.' 
 Haxey's The arbitrary violation of the freedom of speech in 
 
 c^e, 20 Haxey's case by Richard II. has already been noticed.* 
 [1397]- This proceeding eventually led to a signal confirmation of 
 
 1 Rot. Pari. V. 176-182. 
 
 - For a historical and legal account of the various branches of Parliamentary 
 privilege, see May's Parliamentary Practice. The phrase ' privilege of Parlia- 
 ment ' is now of much wider signification than formerly. In strictness. 
 Parliamentary privilege was originally fourfold : ( i ) free access to the King ; 
 (2) the right to the most favourable interpretation by him of Parliamentary 
 sayings and doings ; (3) freedom of speech ; and (4) freedom from arrest. 
 The right of the Commons to determine contested elections was not originally 
 regarded as a privilege of Parliament, and was not completely established till 
 the reign of Elizabeth. 
 
 3 Elsynge, Ancient method of holding Parliaments, p. 177. 
 
 4 Supra, p. 31^. 
 
IX.] Lancastrian and Yorkist Kings, '^2>1 
 
 the privilege. In the ist of Henry IV. (1399) the judg- 
 ment against Haxey was twice reversed and annulled ; in 
 the first instance, on his own petition, by the King and the 
 Lords spiritual and temporal ; and again on the petition of 
 the Commons. The privilege was thus acknowledged by 
 the highest Judicial authority, — the King and the House 
 of Lords, — and by an enactment of the whole Legisla- 
 ture.i 
 
 In the next year (2nd Henry IV.) the Commons, by their The King 
 Speaker, showed the King ' how that when certain matters notice of 
 were moved among them, some of their body, to please the speeches in 
 
 1 1 • r 1 T7-« Parliament. 
 
 Kmg, and to advance themselves, would mform the Kmg 
 of such matters, before the same had been discussed and 
 agreed upon among the said Commons, by which the King 
 might be incensed against them, or some of them ; ' where- 
 fore they prayed him not to take notice of any reports that • 
 might be made to him of their proceedings. To this he 
 replied that it was his wish that the Commons should 
 deliberate and treat of all matters amongst themselves, in 
 order to bring them to the best conclusion, .... and that 
 he would hear no person, nor give him any credit, before 
 such matters were brought before the King by the advice 
 and consent of all the Commons, according to the purport 
 of their petition.^ 
 
 The declaration of the King, in the 9th year of his reign \ 
 (1407), acknowledging the right of the Commons to initiate j 
 Money Bills and also the independent right of free discus- 1 
 sion residing in both Houses of Parliament, has been already 
 referred to.^ 
 
 In the 33rd of Henry VL Thomas Yonge, one of the Yon^^e' s casf , 
 * knights for the shire and town of Bristol,' complained to 1455.^"" 
 the Commons that he had been arrested and imprisoned in 
 the Tower, five years previously, 'for matters by him 
 showed in the House,' — namely, a motion made by him 
 that, the King then having no issue, the Duke of York 
 
 1 Rot. Pari. iii. 430, 434 ; May, Pari. Prac. [9th ed. 119]. 
 
 2 Rot. Pari. iii. 456. 
 
 3 Supra^ p. 325. 
 
 C.H. Z 
 
33^ Parliament under the [Ch. 
 
 might be declared heir-apparent to the Crown. The Duke 
 was now Protector, and the occasion, therefore, favourable 
 for the presentation of Yonge's complaint and claim for 
 compensation. The Commons transmitted his petition to 
 the Lords, and the King ' willed that the lords of his 
 ^ council do and provide for the said suppliant, as in their 
 
 discretion should be thought convenient and reasonable.' ^ 
 
 Nothing further occurred on the subject of freedom of 
 debate until the 4th of Henry VIII. (15 12), when, in conse- 
 ^/m/^'jf^j^, quence of the proceedings in Strode' s case^ an important 
 1512. Act was passed, which_not_qnly admitted, by implica- 
 
 tion, the existence of the privilege, but was designed to 
 protect, in future, all members of either house from any 
 question on account of their speeches or vQtesJn Parlia- 
 ment. Richard Strode, member for the borough of 
 Pfympton in Devonshire, had been prosecuted in the Stan- 
 nary Court,^ for having proposed certain Bills in Parlia- 
 ment to regulate the tinners in Cornwall. He was in con- 
 sequence fined and imprisoned, as the statute recites, *in a 
 doungen and a depe pytt under grounde in the Castell of 
 Lidford, and there and elsewhere remayned by the space of 
 thre wekys and more, unto such tyme he was delyvered by 
 a wrete of Privilege out of the Kyngges Eschequer at 
 
 1 Rot. Pari. V. 337. 
 
 2 The Court for the Stannaries of Cornwall and Devon is a court of special 
 jurisdiction, similar in character to the court of the Lord Warden of the Cinque 
 Ports, the courts of the Counties Palatine of Lancaster and Durham, and 
 other special courts instituted, in derogation from the general jurisdiction of 
 the Courts of Common Law, for the local redress of private wrongs. It is 
 founded on an ancient privilege granted to the workers in the tin mines to sue 
 and be sued (in all matters arising within the Stannaries, excepting pleas of 
 life, land, or member) in their own court before a judge called the Vice- Warden 
 of the Stannaries. This privilege was confirmed by charter of 33 Edward I., 
 and by statutes 50 Edward IIL and 16 Car. L c. 15, and the court has been 
 regulated by several recent statutes. Formerly an appeal lay from the Stannary 
 court to the Lord Warden, from thence to the privy council of the Prince of 
 Wales as Duke of Cornwall, and from thence to the Sovereign ; but by statute 
 18 & 19 Vict. c. 32, s. 26, an appeal from all decrees and orders of the Vice- 
 Warden was given to the Lord Warden assisted by two legal assessors, and 
 from the Lord Warden a final appeal to the Judicial Committee of the Privy 
 Council (Stephen, Commentaries, iii. 466). Hy the Supreme Court of Judica- 
 ture Act, 1873 (36 «& 37 Vict. c. 36) all the jurisdiction and powers of the Lord 
 Warden of the Stannaries assisted by his assessors have been transferred to the 
 new Court of Appeal established by that Act. 
 
IX.] Lancastrian and Yorkist Kings, 339 
 
 Westminster, for that he was one of the collectours in the 
 said countie for the first of the twoo quyndezims graunted 
 at and in this present Parliament' The statute ^ proceeds 
 to declare these proceedings of the Stannary Court void, and 
 further : ' That [all] sutes, accusementes, condempnacions, stat. 4, 
 execucions, fynes, amerciamentes, punysshmentes, &c., ^g"' ^^^ 
 putte or had, or hereafter to be put or hadde unto or uppon 
 the said Richard [Strode], and to every other of the person 
 or persons afore specified [' other of this House '] that nowe 
 be of this present Parliament, or that of any Parliament 
 herafter shalbe, for any bill, spekyng, reasonyng, or de- 
 clarying of any rrtater or maters concernyng the Parlia- 
 ment, to be communed and treated of, be utterly voyd and 
 of none effecte.' 
 
 Thirty years later, in 1541, the Commons, by the mouth Freedom of 
 of their speaker, Thomas Moyle, appear, for the first time, cia^^ed by 
 to have included freedom of speech among their ' ancient the Speaker 
 and undoubted rights and privileges' claimed from the 
 King at the commencement of each Parliament.^ 
 
 In 1 62 1 the Commons declared 'that every member Declaration 
 hatE Freedom from all impeachment, imprisonment or Commo 
 molestation, other than by censure of the House itself for or in 1621. 
 concerning any bill, speaking, reasoning, or declaring of 
 any matter or matters touching the Parliament or Parlia- 
 mentary business.' ^ 
 
 But notwithstanding the undoubted right of the The privi- 
 Commons to the enjoyment of this privilege, it was, like violated. 
 so many other of their Constitutional rights, frequently 
 violated by the Crown during the Tudor and Stuart 
 periods.'* 
 
 The last occasion on which it was directly impeached Case of 
 was in the celebrated case of Sir John Eliot, Denzil Holies, HoUes and 
 
 Valentine, 5 
 
 Charles. 
 
 1 4 Hen. VIIT. c. 8. [Rev. Stat. i. 373-4.— Ed.] 
 
 2 Rot. Pari. 33 Hen. VIH. ; May, Pari. Prac. [t2o]. 
 Hatsell, Precedents, i. 79. 
 
 * See the cases of Strickland in 1571 ; of Cope, Wentworth, and others in 
 1588 ; and of Sir Edwin Sandys in 1621. — D'Ewes, 166, 410; Com. Journal, 
 635 ; infra^ chaps, xii., xiii. 
 
 z 2 
 
;4o 
 
 Parliament tinder the 
 
 [Ch. 
 
 The 
 
 privilege 
 confirmed 
 by Bill of 
 Rights. 
 
 (ii.) Free- 
 dom from 
 arrest. 
 
 and Benjamin Valentine, whose prosecution was one of 
 those illegal acts which hastened the ruin of Charles I. 
 In the 5th year of his reign (1630), a judgment was ob- 
 tained in the Court of King's Bench against these members 
 for their conduct in Parliament, the statute of the fourth 
 Henry VIII. being falsely assumed to be merely a private 
 Act for the relief of Strode, and not of general application. 
 In 1 64 1, the House of Commons declared all these proceed- 
 ings in the King's Bench to be against the law and privi- 
 lege of Parliament; and in 1667, after the Restoration, 
 they passed another resolution : ' That the Act of Parlia- 
 ment in 4th Henry VIII. commonly entitled "an Act 
 concerning Richard Strode " is a general law, extending to 
 indemnify all and every the members of both Houses of 
 Parliament, in all Parliaments, for and touching any bills, 
 speaking, reasoning, or declaring of any matter or matters 
 in and concerning the Parliament to be communed and 
 treated of; a7id is a declaratory law of the ancient and 
 necessary rights and privileges of Parliament' They subse- 
 quently resolved * that the judgment given, 5 Car., against 
 Sir John Eliot, Denzil Holies, and Benjamin Valentine, in 
 the King's Bench, was an illegal judgment, and against the 
 freedom and privilege of Parliament.' On a conference, 
 both these resolutions were agreed to by the Lords ; and 
 finally, on a writ of error, the judgment of the Court of 
 King's Bench was reversed by the House of Lords, on the 
 15th of April, 1668.^ The privilege was confirmed, for the 
 last time, by the Bill of Rights, the 9th article of which 
 declared, * 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.' ^ 
 
 II. The privilege of freedom from arrest or molestation 
 is probably coeval with the first existence of National Coun- 
 cils in England. A law of Ethelbert, the first Christian 
 King of Kent, at the end of the 6th century, provides that 
 
 1 Lords' Journ. xii. 223 ; May, Pari. Prac. [123]. 
 
 2 I Will, and Mary, sess. 2, c. 2 ; infra, ch. xv. 
 
IX.] Lancastrian and Yorkist Kings, 341, 
 
 * If the King call his '' leod " (people) to him \i.e.y in the 
 Witenagemot] and any one there do them evil, let him 
 compensate with a two-fold " hot " and fifty shillings to the 
 King.' So Cnut, in the early part of the eleventh century, 
 declares * that every man be entitled to " grith " [immunity 
 from molestation] to the gemot and from the gemot, except 
 he be a notorious thief.' ^ This immunity from arrest (ex- 
 cept for treason, felony, or breach of the peace) is useful 
 and indeed necessary ; but formerly not only the members 
 of both Houses, but their servants and their property also, 
 were included in the special protection, during the time 
 over which privilege was supposed to extend, i.e.^ forty 
 days before and after the meeting of Parliament. 
 
 In the i8th of Edward t. (1290) the Master of the Case of 
 Temple petitioned the King for leave to distrain for the sJ.^ DavW's, 
 rent of a house held of him by the Bishop of St. David's 18 Edw. I. 
 and was answered : * It does not seem fit that the King 
 should grant that they who are of his council should be 
 distrained in time of Parliament ; ' ^ but at another time 
 let him distrain 'per hostia et fenestras prout moris est.' 
 The privilege was also distinctly acknowledged by the Prior of 
 Crown in the 9th of Edward II. (13 15) in the case of the f^^^^"^^ 
 Prior of Malton, who had been arrested on his way from Edw. 11. 
 Parliament.^ It was not however always respected ; and ^^t^^^^^" 
 at length in the nth of Henry VI. (1432), the Commons c. 11. 
 obtained a statute for the punishment of such as assault 
 any on their way to Parliament, giving double damages 
 — as in the law of Ethelbert — to the injured party.* But 
 the privilege was not founded on the statute, which was 
 
 1 Ethelbert, c. i ; Cnut, Sec. Dooms, c. 83 ; Thorpe, Anc. Laws and 
 Inst, of Ang. Saxons. Cnut's law was evidently intended to apply to persons 
 coming to the Witenagemot on private business as well as to those summoned 
 to give counsel and consent. So a law of Edward the Confessor (Leges Edw. 
 Conf. art. 2, cl. 8) provides ' ad synodos venientibus, sive summoniti sint, sive 
 per se quid agendum habuerint, sit summa pax.' 
 
 2 Rot. Pari. i. 61. 
 
 * Hatsell, Precedents, i. 12. 
 
 * II Hen. VI. c. II. Three years previously the clergy had got a similar 
 privilege, by statute 8 Hen. VI. c. i, for themselves and servants on their way 
 to Convocaiion. 
 
342 
 
 ParliaTuent under the 
 
 [Ch. 
 
 Petition of 
 Commons, 
 5 Hen. IV 
 
 Ahvylts 
 case^ 17 
 Edw. IV. 
 [1477.] 
 
 Thorp's 
 case, 31 
 Hen. VI. 
 [An excep- 
 tion.] 
 
 merely declaratory of the ancient law. In a petition to 
 the King in the 5th of Henry IV. (1403), the Commons 
 had alleged that, according to the custom of the realm, the 
 lords, knights, citizens and burgesses were entitled to this 
 immunity, and prayed that treble damages should be paid 
 by persons violating it. The King admitted the privilege, 
 but refused to extend the damages, on the ground that 
 there was already a sufficient remedy.^ So in the case of 
 John Atwyll, member for Exeter, in the 17th Edward IV. 
 (1477), the Commons affirmed that the privilege had existed 
 ' whereof tyme that mannys mynde is not the contrarie.' ^ 
 
 The sole exception to the recognition of this privilege 
 was the celebrated case of Thomas Thorpe, Speaker of the 
 Commons, and a Baron of the Exchequer, who in 1453 
 (31 Hen. VI.), during a prorogation of Parliament, was im- 
 prisoned in the Fleet on an execution, issuing out of his 
 own Court of the Exchequer, for nonpayment of a fine due 
 to the King for a trespass committed in seizing certain 
 goods of the Duke of York. The Commons sent some of 
 their members to complain to the King and Lords, and 
 demand the release of the Speaker, and of Walter Rayle, 
 another imprisoned member. The Judges, on being con- 
 sulted by the Lords, declared by the mouth of the Chief 
 Justice, speaking in the name of them all, ' after sadde com- 
 munication and mature deliberation hadde amonge theim,' 
 that ' they ought not to aunswere to that question, for it 
 hath not ben used aforetyme that the Justicez shuld in 
 eny wyse determine the Privelegge of this high Court of 
 Parlement ; for it is so high and so mighty in his nature 
 that it may make lawe, and that that is lawe it may make 
 noo lawe ; and the determination and knowlegge of that 
 Privelegge belongeth to the Lordes of the Parlement, and 
 not to the Justices.' But they went on to admit the privi- 
 
 [Chedder's ^ Rot. Pari. iii. 541. The general principle of immunity was distinctly 
 
 casCi 1403*] recognised in the special Act passed in the same year (5 Hen. IV. c. 6) 
 
 in the case of Chedder, a member's servant, who had been assaulted and 
 
 wounded. 
 
 2 Rot. Pari. vi. 191. 
 
IX.] Lancastrian and Yorkist Kings. 343 
 
 lege, asserting that ' if any persone that is a membre of this 
 high Court of Parlement be arrested in suche cases as be not 
 for treason or felony, or suerte of the peas, or for a con- 
 dempnation hadde before the Parlement, it is used that all 
 such persones shuld be relessed of such arrestes, and make 
 an Attourney, so that they may have theire fredom and 
 libertee frely to entende upon the Parlement.' ' As for 
 declaration of procedyng in the lawer Courtes,' they ob- 
 served, ' ther be many and diverse Supersedeas of Privelegge 
 of Parlement brought in to the Courtes, but there ys no 
 generall Supersedeas brought to surcesse of all processes ; 
 for if ther shuld be, it shuld seeme that this high Court of 
 Parlement, that ministreth all Justice and equitee, shuld lette 
 the processe of the commune lawe, and so it shuld put the 
 partie compleynaunt withoute remedie, for so muche as 
 actions atte commune lawe be not determined in this high 
 Court of Parlement' Although, according to this opinion 
 of the Judges (notwithstanding their evident disinclination 
 to * lette the processe of the commune lawe'), Thorpe was 
 clearly entitled to his release, the Lords determined ' that 
 the seid Thomas, accordyng to the lawe, shuld remayn 
 stille in prisone for the causes abovesaid, the Privelegge of 
 the Parlement, or that the same Thomas was Speker of the 
 Parlement, notwithstondyng ; ' and the Commons were 
 directed in the King's name to proceed ' with all goodly 
 hast and spede ' to the election of a new Speaker, which 
 they did the next day.^ This extraordinary decision can 
 only be accounted for by the fact that Thorpe was a 
 staunch Lancastrian, and an old enemy of the Duke of 
 York. The whole case was subsequently characterised in 
 Parliament, as * begotten by the iniquity of the times.'- 
 
 The existence of this privilege, recognised as it had Originally 
 been by statute, by declarations of both Houses, by the J^^^g^^ 
 frequent assent of the King, and by the opinion of the fro'i^ custody 
 
 ,.ir 11 1 iiit)y special 
 
 Judges, to which reference has been made, was undoubted ; 
 
 1 Rot. Pari. V. 239, 240. 
 
 2 Com. Journ. i. 546. 
 
344 
 
 Parliament under the 
 
 [Ch. 
 
 Act of 
 Parliament 
 or by Writ 
 of Privilege. 
 
 Ferrers' s 
 case, 1543. 
 For the first 
 time the 
 Commons 
 release a 
 member by 
 their own 
 authority. 
 
 [Remark- 
 able] 
 
 Speech of 
 Hen. VIII. 
 [on Ferrers 's 
 case.] 
 
 but it was not until the year 1543 that the Commons pro- 
 ceeded to deliver a member out of custody, or to commit 
 any one to prison, by their own sole authority. Down to 
 that year members had been released either (i), when taken 
 in execution after judgment, by virtue of a special Act of 
 Parliament ; or (2), when confined on mesne process only, 
 by a writ of privilege issued by the Chancellor.^ 
 
 The first occasion on which the Commons acted inde- 
 pendently of any other power in the vindication of their 
 privilege was in the important case of George Ferrers, a 
 member who, in 1 543, was arrested, as surety for the debt 
 of another, by process out of the King's Bench. On hear- 
 ing of the arrest, the House sent their Serjeant to demand 
 the release of the imprisoned member. The Serjeant, being 
 resisted by the gaolers and Sheriffs of London, was obliged 
 to return empty handed ; whereupon the House rose as a 
 body and laid their case before the Lords, * who, judging 
 the contempt to be very great, referred the punishment to 
 the order of the Commons' House.' The Lord Chancellor 
 offered them a writ of privilege, but they refused it, ' being 
 of a clear opinion that all commandments and other acts 
 proceeding from the Nether House were to be done and 
 executed by their serjeant without writ, only by show of 
 his mace, which was his warrant.' Accordingly the Ser- 
 jeant was again ordered by the Commons to go to the 
 Sheriffs and demand the delivery of Ferrers ; but in the 
 meantime the Sheriffs, becoming alarmed, had surrendered 
 the prisoner. They were, however, ordered by the House 
 to attend at the bar, together with the gaolers and even 
 the plaintiff in the suit, and on appearing were all com- 
 mitted to prison for contempt. These proceedings were 
 reported to King Henry VHL, who thereupon summoned 
 the Chancellor, Judges, the Speaker, and some of the gravest 
 
 ^ Hatsell, i. 53 ; May, Pari. Prac. [130]. Special acts were passed to enable 
 the Chancellor to issue writs for the release of Larke, a member's servant, in 8 
 Hen. VI., of Gierke, 39 Hen. VI., of Hyde, and of Atwyll, 14 & 17 Ed. IV. 
 — Rot. Pari. iv. 357 ; v. 374 ; vi. 160, 191 ; Hatsell, i. 17-22, 34-36. Arrest 
 on ' mesne ( = intermediate) process' was an arrest by virtue of a writ issued 
 after the commencement of a suit but before judgment. 
 
IX.] Lancastrian and Yorkist Kings, 345 
 
 persons of the Commons, and delivered a very remarkable 
 address. After commending the wisdom of the Commons 
 in maintaining the privileges of their House, and stating 
 that even their cooks were free from arrest, he is reported 
 to have said : * And further we are informed by our judges 
 that we at no time stand so highly in our estate royal, as 
 in the time of Parliament ; wherein we as head, and you 
 as members, are conjoined and knit together into one body 
 politick, so as whatsoever offence or injury, during that 
 time, is offered to the meanest member of the house is to 
 be judged as done against our person and the whole 
 court of Parliament ; which prerogative of the court is so 
 great (as our learned counsel informeth us), that all acts and 
 processes coming out of any other inferior courts, must, for 
 the time, cease, and give place to the highest.' Following 
 the King, * Sir Edward Montagu, the lord chief justice, 
 very gravely declared his opinion, confirming by divers 
 reasons all that the King had said, which was assented 
 unto by all the residue, none speaking to the contrary.' ^ 
 Ferrers was a servant of the King, who, probably on that 
 account, was the more inclined to regard the energetic 
 proceedings of the Commons with favour. 
 
 Henceforward, although a writ of privilege was still occa- 
 sionally employed to effect the release of members, it was 
 not permitted to be obtained without a previous warrant 
 from the Speaker. 
 
 In 1575, Smalley, a member's servant, who had h^^n Smalkys 
 arrested for debt, was set at liberty by the Serjeant of the ^^•^^' ^^"^^ 
 House ; and on its being subsequently discovered that he 
 had fraudulently procured this arrest, in order to get rid of 
 the debt, was committed to prison for a month and ordered 
 to pay the plaintiff ;^ioo.^ There are several other in- 
 stances under Elizabeth of privileged persons being liberated 
 by the Serjeant by warrant of the mace and not by writ ;^ 
 
 ^ Holinshed, i. 824 j Hatsell, i. 57 ; May, Pari. Prac. [131-2]. 
 2 Hatsell, i. 90. 
 
 2 Seethe cases of Fitzherbert in 1592, and of Neale shortly afterwards. — 
 Hatsell, i. 107; D'Ewes, 518, 520; and May, Pari. Prac. [^32-3]. 
 
346 
 
 Parliame7it under the 
 
 [Ch. 
 
 Case of Sir 
 Thomas 
 Shirley, 
 1603. 
 
 Statute 
 I James I, 
 c. 13. First 
 legislative 
 recognition 
 of the 
 privilege. 
 
 The privi- 
 lege abused. 
 
 but the next important case was that of Sir Thomas 
 Shirley in 1603, which led to a more distinct recognition 
 of the privilege by statute, and to an improvement in the 
 law. Sir Thomas had been imprisoned in the Fleet, on an 
 execution for debt, before the meeting of Parliament. The 
 Commons sent their Serjeant to demand his release. This 
 being refused by the warden, he was committed to the 
 Tower for contempt ; but, still continuing obstinate through 
 fear of becoming personally answerable for the debt, he 
 was further committed to the prison called * Little Ease' 
 in the Tower. Shortly afterwards, through the interpo- 
 sition of the King, which the Commons had privately asked 
 for, the warden delivered up the prisoner and was dis- 
 charged after a reprimand.^ This proceeding directed 
 attention to two legal hardships attending the release of 
 members taken in execution : (i) the Sheriff or warden was 
 liable to an action for escape, and (2) the creditor lost his 
 right to an execution. An Act was now passed by which 
 it was for the first time declared : (i) that the officer 
 should be discharged from all liability for delivering out 
 of custody a person having a privilege of Parliament, and 
 (2) that the creditor, at the expiration of the time of pri- 
 vilege, might sue out a new writ of execution. The Act 
 also distinctly recognised as existing law: (i) the privilege 
 of freedom from arrest ; (2) the right of either House of 
 Parliament to set a privileged person at liberty ; and (3) 
 the right to punish those who make or procure arrests.- 
 
 The extension of the privilege of members, so as to 
 protect, not only their own persons, but their property, 
 their servants, and their servants' property, from all Civil 
 suits during the period of privilege, gave rise to very grave 
 abuses. These were partially restrained by several sta- 
 tutes,^ and at length, in 1770, an Act was passed, by 
 which the privilege was reduced to its ancient dimensions, 
 
 1 Hatsell, i. 157 ; May, Pari. Prac. [134]. 
 
 2 I Jac. I. c. 13. 
 
 ' 12 & 13 Will. III. c. 3 ; 2 & 3 Anne, c. 18 ; 11 Geo. II. c. 24. 
 
IX.] Lancastrian and Yorkist Kings, 347 
 
 protection from arrest for the persons of members only, 
 
 leaving the course of justice as to their property and their 
 
 servants entirely free.^ By the effect of these various 
 
 enactments the freedom of members from arrest has 
 
 become not so much a Parliamentary privilege as a legal 
 
 right ; and consequently ' the arrest of a member has been 
 
 held to be irregular ah initio, and he may be discharged 
 
 immediately, upon motion in the court from which the 
 
 process issued.' ^ 
 
 The privilege of freedom from arrest has always been Arrest of 
 
 limited to Civil causes, and has never been allowed to inter- ^nTeinpt of 
 
 fere with the administration of the Criminal law. But as a court of 
 
 iusticCa 
 
 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 ^^^'f C'r<?w 
 Lords that his person had been attached by virtue of a in 1572. ' 
 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 precedents 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 prece- 
 dents, 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. ^ From this period Privilege not 
 down to 1757, the cases, as regards both Lords and Com- fn case of 
 
 Eons, were mainly in favour of privilege ; * but in that year attachment 
 was ' ordered and declared by the Lords that no peer or to obey a 
 rd of Parliament hath privilege of peerage, or of Parlia- !l"f ^^ 
 
 —— Corpus. 
 
 1 10 Geo. III. c. 50. 
 
 2 May, Pari. Prac. [137]. 
 
 3 Lords* Jour. i. 727. 
 
 ■* 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. [156]. 
 
348 
 
 Parliament under the 
 
 Ch. 
 
 In recent 
 times Par- 
 liament has 
 not asserted 
 its privilege 
 in case of 
 members 
 committed 
 for open 
 contempt 
 of court. 
 But the right 
 still subsists. 
 
 (iii.) Right 
 of the 
 
 Commons to 
 determine 
 contested 
 elections. 
 Early abuse 
 of the 
 sheriff's 
 power of 
 returning 
 members. 
 
 ment, against being compelled by process of the Courts of 
 Westminster Hall, to pay obedience to a writ of Habeas 
 Corpus directed to him.'^ In the case of Earl Ferrers, it 
 was decided that an attachment may be granted, if a peer 
 refuse obedience to the writ.^ 
 
 In more recent times, members committed by Courts 
 of Law for open contempt have failed in obtaining release 
 by virtue of privilege.^ Not that either House of Parlia- 
 ment has waived its right to interfere when members are 
 committed for contempt : but each case is considered 
 upon its merits as it arises ; and, although where the con- 
 tempt has been flagrant protection has not been granted, 
 * privilege might still be allowed against commitment 
 under any civil process, or if the circumstances of the case 
 appeared otherwise to justify it.' * 
 
 III. The growing power of the House of Commons is 
 specially marked, during the Lancastrian period, by the 
 earnest attention bestowed by Parliament upon the subject 
 of elections. Owing to the unlimited power of the Sheriffs, 
 gross abuses in the return of members very early crept in. 
 It was to the Sheriff of each county that the King's writ 
 was addressed, requiring him to return two knights for the 
 county and two citizens or burgesses for each city or 
 borough in his bailiwick. But as no particular cities or 
 boroughs were specified in the writ, this functionary as- 
 sumed the power of determining what cities and boroughs 
 
 * Lords' Journ. xxix. i8i. 
 
 ' Burrow, Rep. 631. 
 
 3 See the cases of Mr. Long Wellesley in 183 1, and of Mr. Lechmere 
 Charlton in 1837, and the reports of the Committee of Privileges. — Com. 
 Journ. vol. 86, p. 701, vol. 22, 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 connection with 
 the celebrated *Tichborne case:' and on the 23 Jan. 1874, Parliament not 
 then being in session, Mr. Whalley was committed by the same court for a 
 contempt. He was discharged from custody before the 26th, on which day 
 Parliament was dissolved. On the meeting of a new Parliament the Lord 
 Chief Justice addressed a letter to the Speaker informing him of the facts, and 
 a Committee on Privilege, to whom the letter was referred, reported that it did 
 not demand the further attention of the House. Hansard, Deb. ccxviii. 52, 
 108 ; Report of Pari. Committee, 1874 5 May, Pari. Prac. [158]. 
 
 •» May, Pari. Prac. [160]. 
 
IX.] Lancastrian and Yoi^kist Kings, 349 
 
 should exercise the franchise ; and it became the constant 
 
 practice to omit boroughs which had been in the recent 
 
 habit of electing members, and to return upon the writ, 
 
 ' There are no more cities or 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 
 
 an election, by sending no return.^ But the discretionary 
 
 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 
 
 passed to prevent these malpractices. So early as the abuse by 
 
 reign of Edward I., the Statute of Westminster I. (3 Edw. I. statute. 
 
 c. 5) 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 Parliament.^ 
 
 A statute of the 7th Henry IV. (1406), made * on the Statutes of 
 
 grievous complaints of the Commons of the undue elec- ^^^ ' 
 
 tion of the knights of shires for Parliament,' regulated the 
 
 time and manner of electing knights, and provided for a 
 
 true return by the Sheriff of the result of the election, by 
 
 requiring the names of the members to be written in an 
 
 ^ The town of Torrington, in Devonshire, even obtained a charter of 
 exemption from sending burgesses to Parliament. — Hallam, Midd. Ages, iii. 
 
 115- 
 
 2 In 1312 Matthew Crauthorne complained that the Sheriff of Devon, instead 
 of returning him, a duly elected member, had returned members not chosen by 
 the Commons of the county. (Palgrave's Pari. Writs, II. ii. 138,) In 1386, 
 the bailiffs of Barnstaple, in reply to writs ordering them to pay £6 8^. as the 
 expenses of John Henrys, one of their representatives in the Parliament of Oct. 
 1385 (9 Ric. II.), excused themselves on the double ground, that he was not 
 an inhabitant of the County of Devon nor having any property therein, and 
 that James de Chuddelegh, the Sheriff of Devon, had returned the said John 
 without their assent or knowledge, at the motion of the said John and his 
 friends, for the sake of gain. Return of Members of Parliament 1 213-1702 
 (Printed by authority of Parliament, 1879), p. 225. 
 
 3 5 Ric. II. St. ii. c. 4. 
 
350 
 
 Parlia^nent tmder the 
 
 [Ch. 
 
 1410; 
 
 1445- 
 
 First inter- 
 vention of 
 the Com- 
 mons in 
 election 
 disputes, 
 temp. 
 Ric. II. 
 
 indenture, authenticated by the seals of the persons who 
 had elected them.^ An Act, passed four years later 
 (II Hen. IV.), gave the Justices of Assize power to inquire 
 into the legality of returns, and inflicted the penalty of 
 one hundred pounds on any Sheriff who should return a 
 member not duly elected.^ In the 23rd year of Henry VI. 
 (1445), 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.^ 
 
 The cognisance of Election disputes was originally vested 
 in the King and his Council. The first instance of the in- 
 tervention of the Commons in such matters occurred under 
 Richard II., whose reign was so fruitful in Constitutional 
 precedents. 
 
 In 1384 (7 Ric. 11.) the borough of Shaftesbury pre- 
 sented a petition to the King, Lords, and Commons^ com- 
 plaining of a false return by the Sheriff of Dorset, and 
 praying them to order remedy* In the 5th Henry IV. 
 (1404) the Commons prayed the King and Lords in Par- 
 liament that an improper return by the Sheriff of Rut- 
 land might be examined in Parliainejit, and exemplary 
 punishment inflicted in case of default found. The Lords 
 thereupon sent for the sheriff and for William Ondeby, the 
 knight returned, as well as for Thomas de Thorp, who had 
 been duly elected, and having examined into the facts 
 of the case, directed the return to be amended by the in- 
 sertion of Thorp's name in lieu of Ondeby's, and com- 
 mitted the Sheriff to the Fleet till he should pay a fine at 
 the King's pleasure.^ In a subsequent case, in the i8th 
 
 1 7 Hen. IV. c. 15. 
 = II Hen. IV. c. i. 
 
 3 23 Hen. VI. c. 14. 
 
 •* Prynne, Reg. iv. 261. The result of this petition is not stated. 
 
 ' Rot. Pari. iii. 530 ; Hallam, Midd. Ages, iii. no. 
 
IX.] Lancastrian and Yorkist Kings. 35 1 
 
 Henry VI. (1439), where the Sheriff of Cambridgeshire had 
 failed to make any return, the Commons are not even 
 named, but the matter was determined by the King and 
 the Lords. 
 
 Under Edward IV., Henry VIL, and Henry VIII. there 
 is no record of any interference on the part of the Com- 
 mons ; but the imperfect state of the rolls and journals of 
 Parliament during these reigns renders this negative testi- 
 mony of little weight. In the first year of Queen Mary, NowelTs 
 the Journals of the Commons record the appointment of a ^^^^' ^^^^' 
 Committee ' to inquire if Alexander Nowell, prebendary of 
 Westminster, may be of the House.' On the following day 
 they reported that 'Alexander Nowell, prebendary in 
 Westminster, and thereby having a voice in the Convoca- 
 tion house, cannot be a member of this House, and the 
 Queen's writ to be directed for another burgess in his 
 place.' 1 
 
 The next case was that of the county of Norfolk, in Case of the 
 1586. On account of some irregularity in the first return, ^j^orfoill 
 the Chancellor had issued a second writ for this county, and 1586. 
 a different member had been elected. The circumstance 
 having been noticed in the House of Commons, Queen 
 Elizabeth directed the Speaker to express her displeasure 
 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 
 
 ^ Com. Journals, i Mary, p. 27. 
 
352 Parliament under the \Ca. 
 
 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 
 A first writ, as allowed by the censure of this house, and 
 
 • \j Xs^ not as allowed of by the said lord chancellor and judges. 
 ^r^ Which was agreed unto by the whole house.' ^ 
 
 '^ Case of James I., in the Proclamation summoning his first 
 
 and Fortes- Parliament, attempted to exercise a wide control over 
 cue, 1604. Parliamentary elections, specifying the kind of men who 
 were to be elected, and specially forbidding the choice of 
 * bankrupts and 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 im.prisoned.^ The 
 question soon came to an issue. Sir Francis Goodwin 
 was elected for the county of Buckingham ; but the Clerk 
 of the Crown refused to receive the return on the ground 
 that Goodwin had been outlawed some years before, and 
 Sir John Fortescue, a member of the Privy Council, was 
 elected by virtue of a second writ. The Commons, on the 
 matter being brought under their notice, voted that Good- 
 win was duly elected, and ordered him to take his seat. 
 The Lords requested a conference on the subject, which 
 the Commons at first refused, but afterwards acceded to, 
 on being informed that the request was made at the King's 
 special desire. They justified their decision as'to Goodwin, 
 by alleging that owing to some technical informalities, he 
 was not legally an outlaw, and that even if he were, they 
 
 1 D'Ewes, Journal, 393 ; Hallam, Const. Hist. (7th ed.) i. 275. 
 
 2 Pari. Hist. i. 967. 
 
IX.] Lancasti^ian a7id Yorkist Kings. 353 
 
 could prove by precedents that outlaws had sat in the 
 House. The King, in his reply, going beyond the imme- 
 diate question, took the opportunity to enunciate a doctrine 
 utterly subversive of the free constitution of Parliament. 
 * He had no purpose/ he said, ' 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.' He then maintained that legally the House 
 had no right to meddle with returns, which were made 
 into the Court of Chancery, and were within its exclusive 
 jurisdiction. He further denied their assertion that outlaws 
 might legally sit, and requested them to confer with the 
 Judges. In face of the King's challenge of all the privi- 
 leges of the House, involving as it did the vital question of 
 its independence of or subjection to the Royal will, it was 
 impossible for the Commons to give way on the main point 
 of jurisdiction. But they acted with that combined firmness 
 and reasonableness which in so many Constitutional crises 
 has characterised the political action of the English nation; 
 They gave up the minor point, by bringing in a Bill to dis- 
 able outlaws in future from sitting in Parliament, but they 
 refused to confer with the Judges, affirming that they them- 
 selves had always decided in cases of disputed elections. 
 Two days later, after a further message from the King, in 
 which he professed great regard for their privileges, declared 
 himself distracted in judgment on the question in dispute, 
 and desired and commanded as an absolute King, that 
 there should be a conference with the Judges in the presence 
 of his Council, the Commons gave way on the question of 
 form. The conference with the Judges, however, never 
 came off. In an interview between the King himself and 
 the Committee who had drawn up the reply of the House, 
 James admitted that the Commons were the proper judges 
 of the returns, but requested, as a personal favour, that the 
 return of both Goodwin and Fortescue should be set aside 
 and a new writ issued. To this the House assented, but to 
 satisfy the scruples of certain members a letter was obtained 
 from Goodwin expressing his concurrence in the arrange- 
 
 C.H. A A 
 
354 Parliament under the [Ch. 
 
 ment^ The apparent compromise was In effect a victory 
 for the Commons, whose right to decide upon the legality 
 of returns, and the conduct of returning officers in making 
 them, was thenceforth regularly claimed and exercised. 
 It was fully recognised as their exclusive right by the 
 Court of Exchequer Chamber in 1674,^ by the House of 
 Lords in 1689,^ and also by the Courts of Law in 1680 * and 
 1702.^ Their right was further recognised by the Act 7 
 William III. c. 7, which declared that 'the last determina- 
 tion of the House of Commons concerning the right of 
 elections is to be pursued.' 
 
 The claim of the Commons to determine, not merely 
 the Jejality of elections, but the rights of the electors as 
 well, gave rise, in 1702, to a memorable contest between 
 Case of the Lords and Commons. One Ashby, a burgess of 
 '^hUe ^ Aylesbury, having been refused permission to vote at an 
 1702. election, brought an action at common law against William 
 
 White and others, the returning officers of that borough. 
 • He obtained a verdict ; but it was moved in the Court of 
 Queen's Bench, in arrest of judgment, 'that this action did 
 not lie,' and, contrary to the opinion of Lord Chief Justice 
 Holt, judgment was entered for the defendant ; a decision 
 which was afterwards reversed, on a writ of error, by the 
 House of Lords, on the grounds upon which Chief Justice 
 Holt had based his dissent in the Court below. Upon this 
 the Commons, after lengthy debates, passed resolutions 
 affirming 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 uncon- 
 tested ; that they exercise a great power in that matter, for 
 they oblige the officer to alter his return according to their 
 
 1 Commons' Journ. i. 149-169; Pari. Hist. i. 993-1017; S. R. Gardiner, 
 Hist, of Eng. 1603-1616, i. 185-188. 
 
 2 Barnardiston v. Soame^ 6 Howell, St. Tr. 1092. 
 
 3 Ibid. 1 1 19. 
 
 4 Onsloiv's cane, 2 Ventris, 37. 
 
 6 Frideatix v. Morris^ 2 Salkeld, 502. 
 
X.] Lancastrian and Yorkist Khig^s, 355 
 
 '<*> 
 
 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, as set forth 
 in the judgment of the House of Lords, that 'there is a 
 great difference between the right of the electors and the 
 right of the elected : the one is a temporary right to a 
 place in Parliament, /r<? hac vice ; the other is a freehold 
 or a franchise. Who has a right to sit in the House of 
 Commons may be properly cognisable 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 pretend to take away his right of 
 voting may as well pretend to take away the freehold upon 
 which it depends.' ^ 
 
 Shortly after the decision of the House of Lords, up- Case of '//^^ 
 holding the claim of Ashby against the returning officers, J^^: ^^^ ' 
 five other burgesses of Aylesbury, afterwards familiarly 
 known as ' the Aylesbury men,' commenced similar actions 
 against the constables of their borough. They were there- 
 upon committed to Newgate by the House of Commons 
 for a contempt of its jurisdiction. They endeavoured to 
 obtain their discharge on writs of habeas corpus^ but with- 
 out effect, the majority of the Judges holding that the 
 Commons were the sole judges of their own privileges. 
 The Commons further declared the counsel, agents, and 
 solicitors of the plaintiffs guilty of a breach of privilege, 
 
 ^ Report of Lords' Committee, 27th March, 1704, upon the conferences in 
 the case oi Ashby and White ; Hatsell, vol. iii. App. ; 14 St. Tr. 695-888. 
 
 A A 2 
 
35^ Parliament under the LCh. 
 
 and committed them also. The * Aylesbury men ' then 
 applied for a writ of error, in order to bring the decision of 
 the Judges refusing the habeas corpus before the House of 
 Lords ; but the Commons resolved that no writ of error 
 lay in this case, and petitioned the Queen not to grant it. 
 On the other hand, the Lords addressed the Queen, 
 pointing out that writs of error are writs of right, ex dehito 
 fustitiae (a contention which was upheld by ten out of the 
 twelve Judges, when appealed to by the Queen for their 
 advice), and prayed that the writ might be granted. At 
 length the Queen put an end to the unseemly contest by a 
 prorogation of Parliament, which at once set the * Aylesbury 
 men ' and their counsel at liberty. No longer impeded by 
 the interposition of privilege, and supported by the judg- 
 ment of the House of Lords, the plaintiffs proceeded with 
 their actions, and obtained verdicts and execution against 
 the. returning officers.^ 
 
 The exclusive jurisdiction of the Commons in matters 
 of election, which, for the sake of their own independence, 
 they had insisted on and obtained, became subsequently 
 prostituted to the purposes of party, and this abuse reached 
 its greatest height under George H. and George HI.- 
 The evil was remedied as far as possible by the Acts of 
 Mr. Grenville in 1770, and of Sir Robert Peel in 1839 ; but 
 to the last the constitution and proceedings of Election com- 
 mittees 'too often exposed them to imputation of political 
 bias.' At length, in 1868, the trial of controverted elections 
 was transferred to [the] Judges of the superior Courts of 
 Law,^ thus recurring to the method adopted more than 450 
 years previously in the Election statute of 1 1 Henry IV. 
 The county It was under the Lancastrian dynasty that the first 
 
 e'i^oyeirby statutes wcre passed regulating the qualifications of Par- 
 all free- 
 
 holders. ~ ~ ~ 
 
 1 Reg. V. Paty (one of the ' Aylesbury Men '), 2 Lord Raymond, 1109. 
 
 2 See May, Const. Hist. i. 362-369. 'The struggle between Sir Robert 
 Walpole and his enemies was determined in 1741 — not upon any question of 
 public policy— but by the defeat of the Minister on the Chippenham Election 
 VM\\.\on.'—/bid. p. 364. 
 
 •"' 31 & 32 Vict. c. 125, 
 
IX.] Lancastrian and Yorkist Kings, 357 
 
 llamentary electors and of persons to be elected. It is 
 probable that from the first introduction of county repre- 
 sentation, 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 
 the county assembled in the County Court.^ In the ' Good 
 Parliament' of 1376 the Commons, in their anxiety to 
 prevent the malpractices of the sheriffs, appear to have 
 attempted to restrict the electoral body in counties. They . 
 petitioned that knights of the shire might be chosen 
 by common election of the better folk of the shires^ 
 and not nominated by the sheriff without due election. 
 Edward III. replied that the knights should be elected by 
 common assent of the whole county? The earliest statute 
 regulating their election, 7th Henry IV. c. 15(1406),* — which, At its 
 having been enacted in answer to a complaint of the Com- ^^derHenry 
 mons of ' undue ' election, may be taken to be declaratory IV, 
 and confirmatory only of the existing custom — places the 
 franchise upon a very popular basis, so as to include not only 
 all freeholders, but all freemen present at the County Court 
 on the day of election. It was enacted * that at the next 
 county [court] to be holden after the delivery of the writ, 
 proclamation should be made, in full county [court], of the 
 day and place of the Parliament, and that all they that be 
 there present, as zvell suitors duly summoned for the same 
 cause as others, shall attend to the election of the knights 
 for the Parliament ; and then, in full county, they shall 
 
 ^ Supra, p. 241. 
 
 2 [That all the Freeholders did give suit of County Court in 12th and 13th 
 centuries is categorically denied by Mr. J. H. Round in Arch. Rev. ii. 66, Art. 
 The Suitors at the County Court, following, but enlarging upon, the thesis of 
 Mr. F. W. Maitland, in Eng. Historical Review for July, 1888, in Art. under 
 same title. Mr. Round's conclusion is, op. cit. p. 69, bluntly stated to the 
 effect that * no Freeholders, as such, were suitors of the County Court.' This, 
 being simply a flat contradiction of the older view which found expression in 
 the original text of the present work, is not capable of being reconciled with it, 
 and no such attempt will here be made, nor any change in the text, the 
 present Editor not being convinced that the Freeholders ever lost their right of 
 attendance by any statute, whatever may have been the facts as regards the 
 frequency of such attendance. — Ed.] 
 
 3 Rot. Pari. ii. 355 ; Stubbs, Const. Hist. ii. 433. 
 
 4 Supra, p. 349. 
 
35^ Parliament tender the [Ch. 
 
 proceed to the election, freely and indifferently, notwith- 
 First dis- standing any request or command to the contrary.' ^ But in 
 smute^,^^^ 1430 (8 Henry VI.) was passed a very remarkable measure, 
 8 Hen. VI. — \\^q f^j-s^- disfranchising statute on record, — by which the 
 
 qualification of County electors was restricted to free- 
 -^^fj.y r holders, and of them to such only as * have free land or 
 
 shilling free- ;. 
 
 holders. tenement to the value of forty shillmgs by the year at least, 
 above all charges ; ' with power to the Sheriff to examine 
 each elector on oath as to the annual value of his property. 
 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 not 
 merely all landless freemen, but a very large number of 
 the smaller freeholders. The County franchise, which had 
 reached its maximum by the time of Henry IV., was now 
 reduced to its minimum. The reactionary tendencies of 
 the times are disclosed in the recital in the Act of 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 excessive 
 number of people dwelling within the same counties, of 
 the which most part was people of small substance and of 
 no value, whereof every of them pretended a voice equiva- 
 lent, 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 th-Q genttemen 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.' ^ 
 
 ^ The language of the Act is not free from ambiguity ; and some have 
 regarded it as conferring an extension of the suffrage. (See Homersham Cox, 
 Ancient Parliamentary Elections, 105.) Stubbs, however (Const. Hist. iii. 
 406) maintains, (and his contention is supported by the natural inference from 
 the petition of the Commons in 1376 together with the King's answer) that 
 ' before the close of the reign of Edward HI. the whole body of persons assem- 
 bled made the election whether they were legal suitors or not, and that the 
 Act of 1406 introduced no alteration. 
 
 - 8 Hen. VI. c. 7. 
 
IX.] Lancastrian and Yorkist Kings. 359 
 
 Besides fixing a property qualification for voters, this Both electors 
 statute also required that both the electors and the elected required to 
 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. ; ^ and another statute 
 in 1432 (lo Hen. 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,' was at length repealed by the 14th George III. Repealed by 
 
 ^ T 14 Geo. III. 
 
 C. 58.^ c. 58. 
 
 The Act of 1445 (23 Hen. VI.) has been already referred Knights of 
 to in reference to the restraints put upon the malpractices Required to 
 of the Sheriffs ; but it is more important on account of one be of gentle 
 
 Birth, by 
 
 Stat. 23 Hen] 
 
 VI. c. 14. 
 
 » I Hen. V. c. i. 
 
 2 Hallam, Midd. Ages, iii. 119. In Onslmv v. Ripley, 1781, the Court of 
 King's Bench resolved that * little regard was to be had to that ancient statute, 
 I Hen. v., because the common practice of the kingdojji had been ever since to 
 the contrary, ' — Peckwell, Reports of Contested Elections, i. 53, note D. 
 
 In the reign of Elizabeth, in 1571, a Bill was introduced in the Commons to 
 repeal, as to boroughs, the ancient statute of Henry V. and legalise the inno- 
 vation 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 member of the House of 
 Commons is deputed to serve not only for his constituents but for the whole 
 kingdom ; a principle which marks the distinction 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 
 argument 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 elec- 
 tions in favour of nominees. Some members proposed to impose a fine of ^40 
 on any borough making its election on a peer's nomination. — See D'Ewes, 
 p. 168 ; and Hallam, Const. Hist. i. 266. 
 
360 Parliament under the [Ch. 
 
 of its provisions, which attempted to estabh'sh not only a 
 property qualification for members, but also a qualification 
 of gentle birth, contrary to that important Constitutional 
 principle, — the legal equality of all freemen below the 
 peerage, — which has exercised so beneficial an influence 
 over the English nation. It would seem that the knights 
 of the shire, who had long ceased to be in all cases knights 
 in the strict sense of the term, were sometimes not even 
 gentlemen by birth, and it was now enacted, that hence- 
 forth the county representatives should be * notable knights 
 of the same counties for which they shall be chosen, or 
 otherwise such notable esciuirts, ge?itlemen dorn, 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 
 \vadlet) or under.' ^ 
 
 Valetti in ' ^ ^^ ^^^^ ^^^ Edw. II.) eight Knights of the Shire returned to the Parlia- 
 Parliament "^^'^t which met in November have the word valettus against their names in 
 the enrolment of the writs de expensis. They are : for Devon, Richard 
 Chissebych ; Worcestershire, John de Stone ; Herefordshire, John de Brugge 
 and Philip de Canvouwe ; Leicester, Robert de Gaddesby and William Jaunvill ; 
 Middlesex, Richard Duraunt and William le Rous. The exact meaning of 
 the term 'valettus' at this date is doubtful. In 1445 it was clearly synony- 
 mous with * yeoman,' and so it would appear to have been in 1397, when 
 ' vadletz appellez yomen ' are complained of in Haxey's Bill {siip?'a, p. 318), 
 and are, by a statute of the same year (20 Ric, II. c. 2, apparently founded on 
 Haxey's complaint), restrained, as well as all others, ' de meindre estat,' from 
 wearing the ' livery of company ' pertaining to any lord. * Valet ' or ' vade- 
 lect ' seems to have originally denoted honourable service. Selden (Tit. of 
 Honour, fol. 831) speaks of it as being anciently a name specially denoting 
 young gentlemen, even though of great descent or quality, but as subsequently 
 ieomen. given to persons of the rank of yeomen. A * yeoman ' is defined by Sir Tho. 
 Smith (Rep. Anglor. lib. i. c. 24) as he whom our law calls legalis homo, a 
 free-born man that may dispend of his own free land in yearly revenue to the 
 sum of forty shillings. But it had also a more general application, denoting, 
 like ' valet,' a higher kind of service, which still survives in the current phrase to 
 do * yeoman's service.' In the household of the mediaeval knight or baron the 
 younger sons of yeomen would form a large proportion of the servitors, and 
 share with the younger sons of knight or squire the common name of valetti. 
 The yeomen, too, who lived on their own land, but wore the ' livery of com- 
 pany ' of some baron or lesser territorial magnate, would also be his ' valets. ' 
 
 The mediaeval ' yeoman ' was the tenant of land in free socage. The extent 
 of his holding might be large or small. From the year 1278, if it amounted to 
 ;^20 annual value, he was liable, like the tenant in chivalry, to be compelled to 
 take up knighthood ; a burthen from which he was nominally relieved by the 
 statute De Militibus in 1307. {Supra, p. 163.) Gentle birth constituted 
 then as now a social distinction, but had as yet received no legal recognition. If 
 a freeholder below the rank of peerage were not a knight, or an esquire, he would, 
 we apprehend, have been classified as a yeoman, ' gentleman ' not having yet he- 
 
IX.] Lancastrian and Yorkist Kings. 361 
 
 The property qualification thus established was con- Property 
 
 . , 11, /. 1 1 1.1 1 • qualification 
 
 siderable, the amount of land which made its owner of members. 
 
 come a designation of legal status. It was not till the 27 Edw. III. (1353) that 
 
 the words ^ gentilis homo^ were adjudged a good addition (Cowell's Interpreter, 
 
 s. V. * gentleman ') : and both ' esquire ' and ' gentleman ' are rarely found Q^jifig^igji^ 
 
 before the stat. i Hen. V. c. v. (1413) which required the addition, in original 
 
 writs and other legal processes, of the ' estate, degree or mystery ' of the defen- Esqinres. 
 
 dant. In the 25 Hen. VI. (1447) the members returned for Surrey were : ' John 
 
 Stanley, squyer,' and 'William Weston, gentylman.' (Pari. Return, 1879, p. 
 
 337.) A hundred and twenty years previously Weston would probably have 
 
 been described as valettus or 'yeoman.' Some of the valetti returned in 
 
 1322 may, however, have been early instances of county representation by 
 
 members who were socially as well as legally of yeoman status. Down to 
 
 1324 the writs required the election of actual knights, but these were not 
 
 always obtainable: and as early as 131 1, two hommes, Ralph de Bellafago 
 
 and Nicholas de Burton were returned for Rutlandshire. (Palgrave's Pari. 
 
 Writs, ii. pp. i, 51.) But they were probably not of a lower social grade 
 
 than that of the ordinary county member. N. de Burton sat again in 1315, and 
 
 1318 ; and William de Burton, miles, was member in 1353 and 1357. A 
 
 John de Bellafago was returned in 1327 and 1328, and Roger de B. in 1338 
 
 and 1341. (Return of Members of Pari. 1213-1702.) In 1324 the Parliamentary 
 
 writs directed the return of two knights ' or others.' (Pari. Writs, II. i. 317.) 
 
 An examination of the recent Parliamentary Return of Members, already cited, 
 gives evidence that most of the eight valetti of Nov., 1322, were of the class 
 from which county members were usually drawn. The name of ' Ricardus 
 de Chissebech, miles,'' occurs as one of the members for Devon in the Parlia- 
 ment which met in May of the same year, 1322. The valettus of this name 
 in the Nov. Parliament could scarcely have been the same person, but was 
 clearly of the same family, probably a son or other relative, who being neither 
 a knight nor an esquire was properly designated valettus or yeoman. Ric. de 
 Chissebech was also member in 1316, -19, -23 and -24 ; R. de C, viiles, in 1318, 
 Jan. & Oct. John de Stone, the Worcestershire valettus of 1322, appears 
 also as member for that county in 1320, and subsequently in 1323, and in six 
 other years down to 1339. Of the Herefordshire valetti, John de Brugge does 
 not appear as a member either before or after 1322, but he is stated in Burke's 
 Extinct Peerage to have been a grandson (Collins, Peerage, ed. 1756, says "the 
 eldest son ") of Sir Simon de Brugge (Bruges or Brydges) of that county, and 
 ancestor of the Dukes of Chandos. Philip de Canvouwe occurs again in 1337 
 as 'Clanvou.' [Cf. Thos. de Clanvowe, Kt., 1410, Cal. Lambeth Wills, 
 Genealogist, v. 326.] Robert de Gaddesby was member for Leicestershire in 
 1319, and again in 1327. The name of 'Jaunvill' does not again occur, but it 
 has not a plebeian sound. It was probably a various spelling of ' Genevill,' a 
 baronial family of the 14th century. Of the two remaining valetti, William le 
 Rous was again member for Middlesex in 1324, and was evidently related to 
 the Richard le Rous, who sometimes with the addition of miles and sometimes 
 without, sat for that county in nine Parliaments from 1297 to 1313. The name 
 of Richard Duraunt does not appear again, and he may not improbably have 
 been of the yeoman class. The names of William * Tornegold ' and Richard 
 'Tulusan' which appear as members for Middlesex, * loco milittim,' in 13 19 
 (Pari. Return, p. 58) seem indicative of a mercantile element in the county 
 representatives. [John Tornegold was Sheriff of London, 43 Edw. III., and 
 John Tolesan, 21 & 33 Hen. III., Gairdner's Three Fifteenth Cent. Chron., 
 Camd. Soc. 1880, pp. 35, 36, 46.— Ed.] 
 
 [Ducange, Gloss., Paris. 1840-50, s. v., cites Hoveden, 783, ' De Dominabus 
 et de Valectis et puellis ... in donatione Domini Regis, ' in proof that valetti 
 were * magnatum filii qui necdum militare cingulum erant consecuti.' In Rot. 
 
1858. 
 
 3^2 Parliameitt under the [Ch. 
 
 eligible for knighthood being estimated at i^20 annual 
 value, equivalent to at least ;^30O 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 Commons, the 
 qualification being fixed at ^600 a year for county, and 
 ;^300 a year for borough, members,^ which was to be 
 exclusively derived from freehold or copyhold estate.^ 
 This invidious and unjust law was maintained until 1838, 
 when the monopoly of the landowners was surrendered, 
 and personal property was admitted as a qualification.^ 
 Abolished in At length, in 1858, the law of property qualification, 
 having been systematically evaded from its first establish- 
 ment, was abolished altogether.* There is only one re- 
 corded instance in which the oligarchic provision of 
 Henry VI.'s statute, that knights of the shire should be 
 of gentle birth, was alleged as a disqualification against a 
 parliamentary candidate, and this occurred six years after 
 the law was passed.^ But it would be very rare during 
 
 Pari. i. 267, -^-^ Edw. I., a list of the Sheriffs for Scotland contains this entry : 
 * De Pebbles, Robert Hastangs, Vallet', Vise' It is worth remarking in 
 confirmation of what has been said above, that nearly all the other Sheriffs 
 on the Hst are described as 'mons.,' i. e.^ they were knights. — Ed.] 
 
 ^ The members for the Universities were excepted. 
 
 ^ 9 Anne, c. 5. A Bill to the same effect passed both Houses in 1696, but 
 WiUiam III. withheld the Royal assent. 
 
 3 I & 2 Vict. c. 48. 
 
 ^ 21 & 22 Vict. c. 26. 
 
 5 In 1450 (29 Hen. VI.) there was a contested election for Huntingdonshire. 
 Robert Stonham and John Styuecley (or ' Stucle'), * notabiles armigeri,' who 
 had sat for the county in several preceding Parliaments, were opposed by a cer- 
 tain Henry Gymber, who was probably the candidate of the yeomen or smaller 
 freeholders and stood in much the same position as a tenant-farmer candidate 
 at the present day. He secured 70 votes, but the old members polled 424, 
 and in the end were duly returned by the Sheriff. The under-sheriff, however, 
 had endeavoured to put in force the provisions of the Act of 1430 as to the ex- 
 amination of electors on oath, and Gymber's supporters threatened a riot ; 
 whereupon 124 of the principal freeholders who had voted for Stonham and 
 Styuecley, fearing lest the Sheriff should be induced to make a false return, 
 forwarded a statement of the facts to the King, setting forth the numbers of 
 the votes on each side, and objecting, further, to the return of Gymber, on the 
 ground that he was not 'of gentell berthe.' — Prynne's 3rd Register, p. 157 ; 
 Return of Members of Parliament, 1213-1702 (1879), pp. 336, 338, 342, 344; 
 and see Stubbs, Const. Hist. iii. 409, 423. 
 
ix.j Lancastrian and Yorkist Kings, 363 
 
 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 Borough 
 Anne above referred to, no other qualification was required 
 in the members except that imposed by i Henry V. c. i., 
 that they should be ' citizens and burgesses resiant, dwell- 
 ing, and free^ in the same cities and boroughs.' The [Question,] 
 question, Who were the original electors in boroughs t has ^^e electors 
 been the subject of much controversy, and scarcely admits in boroughs. 
 of a positive and general answer, owing to the infinite 
 variety of local electoral customs which municipal records, 
 so far as they have yet been explored, disclose. Mr. Ser- 
 jeant Merewether and Mr. Stephens, however, in their 
 learned work on the * History of Boroughs,' have adduced 
 very cogent evidence to show that originally the elective 
 franchise was enjoyed by all burgesses, that is, by all the 
 free inhabitant householders paying scot and bearing lot, 
 and sworn and enrolled at the court leet of the borough. 
 The * court leet ' or * burghmoot,' was the * folkmoot ' of the 
 borough, just as 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 ex- 
 cluded.i But whoever may have been the original electors, 
 — whether the scot and lot householders, the tenants in 
 
 ^ \\xi Lib. Assis., i8, Y. B. 38 Edw. III.,] the persons entitled to be citizens 
 of London were decided to be ' those who were born and heritable in the same 
 city by descent of inheritance, or who were resiaiits and taxable to scot and 
 lot.' The latter is the most general description, and as the former would 
 include all who had heritable houses, so would the latter include all other resi- 
 dent householders who were of free condition. — Merewether and Stephens on 
 Boroughs, Introd. xxvi. 
 
3^4 Parliament tender the [Cu. 
 
 burgage, the freeholders generally, or the freemen, — very 
 few boroughs retained their electoral system unaltered for 
 any length of time ; all were subject to the changes arising 
 from the development of local custom, and the tendency of 
 such development was generally towards a restriction of 
 the franchise.^ On receipt of the writ for the election of 
 county and borough representatives, it was the Sheriff's 
 duty to issue his precept to the cities and towns in his 
 county ; and it was customary for delegates, appointed by 
 their fellow-burgesses for the purpose, to attend in the 
 County Court and there either to report the choice of the 
 borough, or themselves to elect the members to serve in 
 Parliament. Gradually various select bodies of burgesses, 
 by whatever names distinguished, usurped the power, and 
 by long usage acquired a kind of prescriptive right, of elec- 
 tion. By the end of the 15th century these select bodies 
 had in many places substituted self-election for the suf- 
 frages of the whole body of the burgesses. Hitherto these 
 encroachments on the rights of the town populations had 
 gone on in each borough independently and spontane- 
 ously, deriving their sanction solely from the binding force 
 of particular local custom. But from the accession of 
 the House of Tudor, the rights of the inhabitants of 
 boroughs were subjected to renewed and more rigid re- 
 strictions, through the charters of municipal incorporation 
 which now began to be granted by the Crown.^ With the 
 privilege of incorporation was usually combined the gift, 
 or revival, of the right of sending representatives to Parlia- 
 ment. This right was in many cases exclusively vested in 
 the municipal governing body (the Mayor and Town Council) 
 which, as a rule, was nominated in the first instance by the 
 
 1 On the very difficult subject of the mediaeval borough electorate, for which 
 the published materials are as yet too imperfect for thoroughly accurate gene- 
 ralization, see further in Stubbs, Const. Hist. iii. 413-421. 
 
 2 The yfrj-/ charter of municipal incorporation was granted in the reign of 
 Henry VI. [On Municipal Government, see the work by Bazalgette and 
 Humphreys, 1885, and for a recent French view of English municipal history, see 
 M. Alexandre Dehaye, Les Municipality Anglaises (Paris, Cotillon, 1883), 
 reprinted from the Annuaire de Legislation Etrangh-e for 1883. — Ed.] 
 
IX.] Lancastrian and Yorkist Kings, 365 
 
 Crown, and afterwards maintained by self-election. The 
 direct influence of the Crown and the nobility over many 
 municipalities was secured by the creation of the office of 
 high steward which, being held by some local territorial 
 magnate, practically placed the borough representation in 
 his hands. Thus, * for national, as well as local purposes,' 
 it has been well observed, ' the burgesses were put beyond 
 the pale of the constitution. 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 constitution 
 after the encroachments of centuries.' ^ Residence was at 
 first, as we have seen, an essential qualification for a bur- 
 gess, 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 ofiices by the 
 King's Commissioners, and the great officers of State and 
 other persons introduced in their stead. 
 
 Although these usurpations were in some places cor- 
 rected 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 in many cases not really 
 ancient, were judicially recognised as such, the electoral, as 
 well as the municipal, system of boroughs became greatly 
 changed from its primitive popular character.^ The mass 
 
 ^ May, Const. Hist. iii. 279 ; Case of Quo Warranto, 1683, St. Tr. viii. 
 1093 ; New modelling the Corporations, 1687, Ilallam, Const. Hist. iii. 74. 
 " Sir Erskine May (Const. H'st. iii. 276) his pointed out the remarkable 
 
366 Parliament under the [Ch. 
 
 of abuses and anomalies was at length fewept away by the 
 Reform Act of 1832,^ and the Municipal Corporations Act 
 of 1835.- Finally, in 1867, the ancient system of household 
 suffrage, with certain restrictions, which cannot be regarded 
 as in any way more stringent than those which originally 
 existed, was re-established.^ 
 Jiistofyoj Henry VI. was only nine months old when he succeeded 
 Regencies. ^^ ^^ throne. His long minority, and the mental imbe- 
 cility which he evinced on reaching manhood, rendered his 
 reign practically a perpetual Regency. Nominally, a Pro- 
 tector of the kingdom was only appointed at Henry's ac- 
 cession, and on two other occasions, once when the King 
 was specially afflicted by his malady, and again in 1455, 
 when, after the first battle of St. Alban's, the Duke of York 
 was stretching forth his hand towards the Throne. The 
 
 parallel existing between the general political history of the country arid the 
 history of local government, both in boroughs and parishes : ' While the 
 aristocracy was encroaching upon the popular power in the government of the 
 state, it was making advances, no less sure, in local institutions. The few 
 were gradually appropriating the franchises which were the birthright of the 
 many ; and again, as political liberties were enlarged, the rights of self- 
 government were recovered. Every parish is the image and reflection of the 
 state. The land, the church, and the commonalty share in its government ; 
 the aristocratic and democratic elements are combined in its society. The 
 common law, in its grand simplicity, recognised the right of all the rated 
 parishioners to assemble in vestry and administer parochial affairs. But in 
 many parishes this popular principle gradually fell into disuse ; and a few in- 
 habitants — self-elected and irresponsible — claimed the right of imposing taxes, 
 administering the parochial funds, and exercising all local authority. This 
 usurpation, long acquiesced in, grew into a custom, which the courts recognised 
 as a legal exception from the common law. The people had forfeited their 
 rights, and select vestries ruled in their behalf.' A partial remedy for this 
 abuse of parochial government was applied by Mr. Sturges Bourne's Act in 
 1818 (58 Geo. III. c. 69), and by Sir John Hobhouse's Vestry Act (i & 2 
 Will. IV. c. 60) in 1831. [Cf. Vestries or Parish Councils^ Lond. 1890, by 
 J. T. Uodd, M.A., who urges still further reforms. — Ed.] 
 
 1 2 & 3 Will. IV. c. 45- 
 
 2 5 & 6 Will. IV. c. 76, amended by 22 Vict. c. 35. 
 
 a The Reform Act of 1867 (30 & 31 Vict. c. 102) admitted to the borough 
 franchisee:// male occupiers of dxvelling- houses {oi'inW age) who have resided 
 for twelve months on the 31st July in any year, and have been rcUed to 
 the poor rates as ordinary occupiers, and have, on or before the 30th of July, 
 paid such rates up to the preceding 5th January. It also admitted lodgers 
 who have occupied for the same period lodgings of the annual value, un- 
 furnished, of ;^io. [The Representation of the People Act, 1884, seems to us 
 to leave little logical ground for the retention of the lodger franchise, as there 
 is, in perhaps nine cases out of ten, no appreciable distinction between the 
 'lodger' of previous legislation and the 'inhabitant occupier' of the Act of 
 1884.— Ed.] 
 
IX.] Lancastrian and Yorkist Kings. 367 
 
 action of Parliament with reference to the question of 
 Regencyforms an interesting point in Constitutional history. 
 During the temporary absence from the realm of our Nor- 
 man and early Angevin kings, the government of the king- 
 dom devolved officially on the Chief Justiciar, and from the 
 reign of Henry III. it became common to appoint Lords 
 Justices, or custodes regiii — usually by Royal authority only.^ 
 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 pro- 
 bably to the ancient Elective character of the English king- 
 ship, 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.^ '^\x\. pari passu 
 with the gradual establishment of Hereditary 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 Fifteen 
 in English history of the appointment of a Regency, ^'^^^Q^ ^a%7^eZv{ 
 actual or prospective, each of which demands some notice, 
 and may be here conveniently considered in chronological 
 order. 
 
 I. After the hasty coronation of Henry HI., who at Henry ill. 
 his father's death was only nine years old,^ a Council of ^^^^' 
 the prelates and barons who adhered to the young King 
 was summoned to meet at Bristol a fortnight later. By 
 common assent they committed the care of the King 
 and Kingdom to William, Earl of Pembroke, the Earl 
 
 ^ This practice was revived after the death of Mary II. in 1695, when Lords 
 Justices, consisting of the principal officers of State and the Archbishop of 
 Canterbury, were appointed to carry on the government during William II I. 's 
 absence from the realm on his foreign expeditions. 
 
 2 Co. Lit. 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.', 
 
 3 Supra, p. 148. 
 
3^S Parliament under tJie [Ch. 
 
 Marshal, with the title of Rector Regis e^ Regni. With the 
 Marshal was specially associated the Legate Gualo, and the 
 Bishop of Winchester (Peter des Roches) ;^ but his powers 
 were practically limited by the advice of the baronage 
 generally. 
 Edward I. 2. In 1271, prior to Henry III.'s death, an arrangement 
 ^^'^^' had been made for the guardianship of the realm during 
 
 his son's absence. In accordance with this, on the day 
 after the King's decease, the Great Seal was delivered to 
 Walter Giffard, Archbishop of York (the see of Canterbury 
 being vacant), who, with the assistance of Roger de Mor- 
 timer, a baron, and Robert Burnell, one of the Royal clerks, 
 carried on the Government until Edward's return in 
 August, 1274.2 Their powers were confirmed in the 
 National Assembly which met at Westminster on the 14th 
 of January, 1273, and swore allegiance to the absent king.-*^ 
 Edward III, 3. After the deposition of Edward II. and the election 
 ^^^^' and coronation, on the 29th of Jan. 1327, of his eldest son 
 
 Edward,'* then of the age -of fourteen, the Parliament, 
 which had been in session since the 7th of January, pro- 
 ceeded to provide for the Government of the Kingdom. 
 For this purpose they appointed a standing Council, ' a sort 
 of parliamentary regency' as it has been termed, consisting 
 of four bishops, four earls and six barons, with the King's 
 cousin Henry, Earl of Lancaster, at their head, to advise 
 the King in all matters of Government.^ 
 Richard II 4. Richard II. was only eleven years old at the date of 
 '^^7* his accession. But however incapable naturally of exer- 
 
 cising sovereign authority, he was regarded as in the legal 
 enjoyment of it, and no Regent was appointed. The Great 
 
 1 Walt. Covent. ii. 233. Matt. Taris, [Chron.] Maj. [Rolls ed., III. p. 2, 
 only W. Marshal.— Ed.]. 
 
 - Seventh Report of Dep. Keeper of the Public Records (1846), App. ii. 
 259 ; Royal and other Letters of reign of Henry III., Rolls Series, ii. 346 ; 
 Stubbs, Const. Hist. ii. 103, 104. 
 
 "* Siipia^ p. 214. Qui omnes in prgssentia dominorum W. scilicet archi- 
 episcopi Eboracensis, R. de Mortuomari, et R. Burnell clerici, (pn in loco 
 domini Edtvardi regis Angliae praefuerunt, sacramentum eidem domino 
 Edwardo tanquam terras principi prcestiterunt. Ann. Winton. 113. 
 
 •« Sup-a, p. 218. * Rot. Pari. ii. 52; Knyghton, col. 2556. 
 
IX.] Lancastrian and Yorkist Kings, 369 
 
 Seal, according to the subtle reasoning of the lawyers of 
 that age, was supposed to possess a sort of magical influ- 
 ence 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 his uncle, John of 
 Gaunt, 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 legalise all acts of the Govern- 
 ment. But although no Regent was appointed, the House 
 of Lords nominated a Council of twelve, composed of two 
 bishops, two earls, two barons, two bannerets, and four 
 knights, 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.^ 
 
 5. At the accession of Henry VL (i Sept. 1422) far more Henry VI. 
 regularity and deliberation were shown in supplying the '^^'^^^ ^^* 
 defect in the Executive authority. Henry V. on his death- 1422.* 
 bed had expressed a wish that his younger brother Hum- 
 phrey, Duke of Gloucester, should act as Regent in England, 
 while his other brother John, Duke of Bedford, conducted 
 the Government in France.^ But this disposition was dis- 
 regarded by the Parliament. On hearing of the late 
 King's death, several of the Lords spiritual and temporal, 
 chiefly members of the old Council, met together, and pro- 
 vided for the exigencies of government by issuing com- 
 missions 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 on the 9th of November 
 by the Duke of Gloucester, as Commissioner appointed in 
 the King's name, with the consent of the Council, under 
 
 » Rot. Pari. iii. 386 ; Hallam, Midd. Ages, iii. 186. 
 
 2 Gesta Hen. Quinti, [Eng. Hist. Soc] 159 ; but see J. de Waurin, [1399- 
 1422, Rolls ed.] 423. [There is a sharp difference between the two Chroniclers. 
 Anglice , . . protector et defensor sit f rater mens dux Glocestrice, is the language 
 used in Gest. Hen. V., while Waiirin makes Henry commit England to his 
 uncle, Exeter, and France to Bedford, if the Duke of Burgundy should refuse 
 it. — Ed.] The fact that the truth of Gloucester's assertion was answered 
 [only] by a denial of the King's right to dispose of the governance of the king- 
 dom by testament, affords a strong presumption that such assertion was correct. 
 
370 Parliament under the [Ch. 
 
 the Great Seal ; and at once proceeded to ratify all the acts 
 of the peers who had taken on themselves the administra- 
 tion and summoned the Parliament. Some weeks later it 
 is recorded in the rolls that the King, ' considering his 
 tender age and inability at present to direct in person the 
 concerns of his realm, by the assent and advice of the 
 Lords spiritual and temporal, and of the Commons, ordains 
 and constitutes (after he shall have returned to England 
 and so long as he shall remain in the kingdom, and it shall 
 please the King) his uncle the Duke of Bedford, now in 
 parts beyond sea, and during his absence the King's other 
 uncle the Duke of Gloucester, now in England, to be/r^- 
 tector and defender of the kingdom and English church, and 
 the King's chief counsellor.' Letters patent were after- 
 wards passed to this effect, but the tenure of the office was 
 expressly limited to the King's pleasure. Sixteen coun- 
 sellors were afterwards appointed in Parliament to assist 
 the Protector in the administration, with an almost un- 
 limited power of veto on the removal and appointment of 
 officers.^ 
 
 The nature and extent of the powers committed to the 
 Protector may be learnt from the written answer of the 
 Lords to a request of the Duke of Gloucester, in the Parlia- 
 ment of the sixth year of ^Henry's reign (1427-8), that he 
 might be informed what authority he possessed as Protector 
 and defender of the realm and the King's chief counsellor. 
 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 Lords spiritual and temporal as- 
 sembled there in Parliament. . . . had great and long de- 
 liberation and advice, searched precedents of the governail 
 of the land in time and case semblable, when kings of this 
 
 Rot. Pari. iv. 169-176; and see Hallam, Midd. Ages, iii. 186. 
 
IX.] Lancastrian and Yorkist Kings. yji 
 
 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 Bed- 
 ford, should be chief of the King's Council, and devised 
 therefore 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, the which importeth a personal duty of entend- 
 ance to the actual defence of the land, as well against ene- 
 mies 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 Act of 
 the said Parliament, it 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 above said and de- 
 clared, of the which my lord your brother of Bedford, the 
 King's eldest uncle, contented 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.'^ From these proceedings it appears to have 
 been already recognised as Constitutional law: (i) That [Principles 
 the King does not possess the power of nominating a°/^°"^^^^"" 
 Regent during the minority of his successor ; and (2) that recognised, 
 neither the heir presumptive, nor any other person, is en- ^-^^^-S-l 
 titled to exercise the Royal prerogative during the King's 
 infancy (or, by parity of reasoning, his infirmity) ; but that 
 
 1 Rot. Pari. iv. 326. 
 
 B B 2 
 
372 
 
 Parliament under the 
 
 [Ch. 
 
 Henry VI 
 Second 
 Regency. 
 1454- 
 
 Henry VI. 
 Third 
 Regency. 
 M5S 
 
 the sole right of determining the persons by whom, and the 
 limitations under which, the Executive government shall 
 be conducted in the King's name and behalf, resides in the 
 great council of Parliament.^ 
 
 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 derangement 
 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 subsequently 
 passed, constituting the Duke of York protector of the 
 Church and Kingdom and the King's chief counsellor during 
 the Royal pleasure, or until the Prince of Wales (then under 
 two years old) should attain years of discretion, on whom 
 the said dignity was immediately to devolve.^ In less than 
 a year the King became slightly better, and at once an- 
 nulled the Duke of York's protectorate. Hitherto the 
 Lords 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 occa- 
 sion, the Commons — who were for the most part strong 
 partisans of the White Rose — took a much more active 
 part, and would appear to have forced the Lords un- 
 willingly to re-appoint the Duke of York. 
 
 7. The King being a prisoner in the hands of the 
 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 protection and 
 
 * Hallam, Midd. Ages, iii. 189. 
 2 Rot. Pari. V. 240-243. 
 
IX.] Lancastrian and Yoi^kist Kings, ' 373 
 
 defence of the land, an able person should be appointed 
 protector, to whom they might have recourse for redress 
 of injuries.' While the Lords were considering the matter 
 the Commons, two days afterwards, repeated their request ; 
 and after they had left the chamber, the Chancellor de- 
 clared that * it is understood that they will not further pro- 
 ceed 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 Commons were at length in- 
 formed that ' the King our sovereign 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 pleasure,' as formerly, but ' until he 
 should be discharged of it by the Lords in Parliament.' ^ 
 Before the end of February, 1456, the King had once more 
 recovered his reason, and resumed the personal exercise of 
 the Royal functions.^ 
 
 8. On the accession of Edward V. at the age of thirteen, Edward V 
 the Queen-mother claimed and endeavoured to obtain the ^^ ^* 
 Regency, but the Duke of Gloucester (afterwards Richard 
 
 III.) having marched to London and secured the person 
 of the King, 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 that Regency 
 the successor to the throne, if a male and under eighteen, yiji^ ^ y ' 
 or if a female and under sixteen, should be until such age 1536. 
 
 in the government of his or her natural mother (if ap- 
 proved by the King), and of such other councillors as the 
 King by letters patent or by his will should appoint ; and 
 the King accordingly appointed his sixteen executors to 
 constitute the Privy Council, and exercise the authority 
 of the Crown, until his son Edward VI. should attain the 
 
 ^ Rot. Pari. V. 284-290 ; Hallam, Mid. Ages, iii. 192. 
 2 Rot. Pari. V. 321. 
 
374 Parliament under the [Ch. 
 
 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 Pro- 
 tector procured a grant of his office, with almost unlimited 
 powers, by letters patent from the young King.^ 
 Regency 10. No other instance of appointing a Regent occurred 
 
 fl'J^'J^ Geo. ^jjj ^j^g yg^j. j^^j^ ^j^gj^^ ^£^gj. ti^g ^g^^j^ of Frederick, 
 
 1751- 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.^ 
 
 George III. n. The proceedings during the reign of George III., 
 
 ^^^^^^' have a special importance as recent precedents.- In 1765 
 
 1765. ' an alarming illness led the King to consider the necessity 
 
 of providing for a Regency in case of his death. At first 
 
 he wished Parliament to confer upon him the unconditional 
 
 right of nominating any person as Regent whom he might 
 
 select.^ But by the Regency Act, as ultimately passed, 
 
 the King was empowered to nominate, 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* * regent of the kingdom.' A Council of 
 
 Regency was appointed by the Act, which also defined its 
 
 powers and those of the Regent* 
 
 Proceedings ^^' ^" ^^^ occasions during the illness of George III., 
 
 on the king's in 1 788 — 9, and again in 18 10, the name and authority 
 
 illness in 
 
 1788. 
 
 ^ Burnet, ii. 4, 15. 
 
 2 24 Geo. II. c. 24. 
 
 •^ Walpole's Mem. ii. 98. 
 
 ^ 5 Geo. III. c. 27. 
 
IX.] Lancastrian and Yorkist Kings. 375 
 
 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 Parlia- 
 ment when the King was personally incapable of exercising 
 his Constitutional functions. In 1788, in the discussions 
 concerning the appointment of a Regent, Mr. Fox 'ad- 
 vanced 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.' ^ 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 
 principles 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 lordships in 
 Parliament assembled.' ^ 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 Second 
 1 8 10, when the King was seized with his last mental ^J^^-^Ys 10. 
 disorder, the proceedings of Parliament were grounded 
 generally upon the precedent of 1788. An Act was ulti- 
 mately passed — the Royal assent being given by com- 
 mission under the Great Seal authorised by a resolution of 
 both Houses — by which the Prince of Wales was em- 
 powered to exercise the Royal authority as Regent, in the 
 name and on behalf of the King, but subject to many 
 important limitations, particularly specified.^ 
 
 n. By the statute i William IV., c. 2, the late Duchess of Regency 
 
 Act, I Will 
 
 Kent was appointed guardian and Regent in the event of iv.', 1830. 
 
 1 May, Const. Hist. i. 177. 
 
 2 Pari. Hist, xxvii. 678, 684. 
 
 2 For a short but comprehensive summary of the important proceedings 
 relative to the Regency under Geo. HI. see May, Const. Hist. i. 175-215. 
 
Z7^ 
 
 Parliament undei" the 
 
 [Ch. 
 
 First Re- 
 gency Act 
 of Queen 
 Victoria, 
 1837. 
 
 Second 
 Regency 
 Act, 1840. 
 
 Parliament, 
 under 
 
 Edward IV. 
 and Richard 
 III., has no 
 history. 
 
 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 govern- 
 ment 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.^ 
 
 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. Prince Albert, as the 
 survivingparent, was appointed Regent, without any Council 
 of Regency, or any limitation upon the exercise of the 
 Royal prerogatives, — except an incapacity 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.- 
 
 From this general view of the history of Regencies we 
 must now return to the particular period of which this 
 chapter more especially treats. 
 
 Under Edward IV. and Richard III., Parliament has 
 no history. The nobility, thinned by civil war and the 
 hands of the executioner, and split up into contending 
 factions, were unable to offer any political resistance to 
 the power of the Crown. The Commons, by themselves, 
 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 
 
 ^ I Vict. c. 72. 
 2 3 & 4 Vict. c. 52. 
 
IX.] Lancastrian and Yorkist Kings, 377 
 
 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.^ For five years, from January, 1477, n^f Pariia-^* 
 to November, 1483, no Parliament was summoned, — a sus- ment.] 
 pension of the National Council without example since 
 1327. In money matters Edward appears to have made 
 himself, as far as possible, independent of Parliamentaj-y 
 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 tenths from Benevo- 
 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 Parlia- 
 mentary 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 wee be deter- 
 mined,' say the authors of the Address, * rather to aventure 
 and com[m]itte us to the perill of oure lyfs and jopardye of 
 deth, than to lyve in suche thraldome and bondage as we 
 have lyved long tyme heretofore, oppressed and injured by 
 Extorcions and newe Imposic[i]ons,ayenst the Lawes of God 
 and Man, and the Libertee, old Police and Lawes of this 
 Reame, wheryn every Englishman is enherited.' ^ Accord- 
 ingly, in Richard HI.'s only Parliament, Benevolences were 
 declared by statute to be for ever illegal.^ 
 
 Our consideration of the growth of Constitutional Sir John 
 
 Fortescue s 
 
 ^ In Edward IV. 's last Parliament, in 1483, the Commons ventured to make 
 some complaints with respect to the wearing of liveries, the maintenance of 
 the public peace, and one or two other topics. Rot. Pari. vi. 198. 
 
 2 Rot. Pari, [vi.] 241. [—Ed.] 
 
 3 I Ric. III. c. 2. 
 
378 
 
 Parliament under the 
 
 [Ch. 
 
 testimony 
 to the 
 freedom of 
 the Consti- 
 tution. 
 
 government during the 15th century may be appropriately 
 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 that King's young son 
 Edward, Prince of Wales, gives the following exposition 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 tallages and other 
 hardships upon the people whether they would or no, with- 
 out 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 burden 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 with- 
 out 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 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 Principum, 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 
 
IX.] Lancastrian and Yorkist Kings. 379 
 
 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 proportion 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 delega- 
 tion of power from the people^ and he has no just claim to 
 any other power but this.' ^ 
 
 ^ De Laudibus Legum Angliae, cc. 9, 13. See also his treatise on Absolute 
 and Limited Monarchy, and ' De Natura Legis Naturae. ' Two centuries pre- 
 viously, Bracton, writing under Henry III., had borne very similar testimony 
 to the limited nature of the English kingship : ' Rex autem habet superiorem, 
 Deum, s. 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, i. sine lege, debent ei 
 fraenum ponere, nisi ipsimet fuerint cum rege sine fraeno.' — L. ii. c. 16, § 3. 
 
 [M. Duruy, Hist, du Moyen Age, Paris, 1864, p. 450, remarks that by the 
 middle of the Fifteenth century the English people had in the Great Charter 
 the declaration of their rights, and as its guarantees they had for individual 
 liberty, Trial by Jury, for national liberty, the Parliament. M. Duruy also 
 sets forth the difference between the contemporary movements towards national 
 unity in England and in France at that period. ' On remarquera que tandis 
 que I'Angleterre s'organisait pour marcher vers le noble but de la liberte poli- 
 tique, la France s'organisait pour arriver a une grande et forte monarchie oil le 
 roi s'eleverait seul au-dessus de tous. On aurait done pu des ce moment pre- 
 voir que le sentiment le plus vif de I'une serait la hberte, celui de I'autre 
 I'egalite.' Op. cit. p. 456. M. Glasson, Hist, du Dr. et des Inst, de VAngl., 
 iv. 84, thus sums up the position of the English monarchy at the close of the 
 Fifteenth century. ' Ses pouvoirs sont considerables, immenses, et la royaute 
 tentera plus tard de les elargir encore pour arriver a la monarchie absolue. Mais 
 elle se heurtera a la volonte inebranlable de la nation qui saura faire respecter 
 trois principes fondamentaux, deja solidement etablis . . . et qui forment les 
 assises du regime parlementaire : le roi ne peut faire aucun acte legislatif 
 sans le consentement de son Parlement ; il ne peut pas imposer de taxes sans 
 le consentement de ce meme Parlement; il est tenu de gouverner selon les lois 
 du pays et s'il viole ces lois, ses agents et ses conseillers sont responsables.' By 
 Parliament, M. Glasson here obviously means both Houses. On this period 
 of. Three Fifteenth Century Chronicles (Camden Soc. 1880), ed. by James 
 Gairdner. In Eng. Hist. Rev., 1890, pp. 259-63, M. C. V. Langlois urges 
 the advantages of the comparative study of English and French History : * two 
 parallel histories in which nearly all the elements are symmetrical, which have 
 in part a common origin and through the course of centuries have come frequently 
 into contact. ' This is precisely what has been set forth in the present Editor's 
 notes. — Ed.] 
 
38o 
 
 CHAPTER X. 
 
 THE TUDOR PERIOD. (1483— 1603.) 
 
 REIGNS OF HENRY VII., HENRY VIIL, EDWARD VI., MARY. 
 
 General The Tudor period is almost synchronous with the i6th 
 
 dcs^of thT' century, an age remarkable for its material prosperity, its 
 Tudor Intellectual and Religious activity, and its Political retro- 
 
 gression. The mighty impulse given to Commerce by the 
 discovery of America and of the passage 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 enormous 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 themselves were permitted to pursue their 
 avocations in peace. Simultaneously with the extra- 
 ordinary 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 enquiry which it excited concerning 
 matters of the deepest interest hitherto generally accepted 
 as beyond dispute, — all contributed to concentrate popular 
 attention upon intellectual and religious progress, to 
 the neglect of politics. On the continent of Europe, 
 the introduction of standing armies, and the revolution in 
 
Ch. X.] Hen, VII., He7i. VIII, Edw. VI, Mary, 381 
 
 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 as potent as our own early Parliaments. 
 The free Constitutions of Castile and Arragon were succes- 
 sively overthrown by Charles V. and Philip II. ; and the 
 States-General of France, after languishing for a time, 
 ceased altogether in 1614, 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 comparatively secure against foreign 
 invasion, and thus obviated for a lengthened period the 
 necessity of employing regular troops.^ In a less degree 
 the personal character of Henry VIII. was also instru- 
 mental in the preservation of our liberties. Tyrant as he 
 was, he was yet animated by a scrupulous regard 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.' ^ This peculiar character of Henry's tyranny, 
 his anxiety to do everything in proper Parliamentary and 
 Judicial form, ' while it degraded parliamentary and judicial 
 institutions at the time, really did a great deal to strengthen 
 
 ^ Macaulay, Hist. Eng. i. 34. Henry VH. had a small body-guard of 50 
 archers, and Hen. VHI. 50 horse-guards, each attended by an archer, demi- 
 lance and coutelier, 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. lol j Fortnightly Review, Sept. 1871, 
 on 'The Use of Historical Documents.' 
 
382 The Tudor Period, [Ch. 
 
 and preserve them for better days.' ^ Th'e Parliament was 
 indeed so disgracefully subservient and sycophantic that 
 there was little temptation 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 immediately proceeded to pass an Act declaring that it 
 was all done ' of the King's most excellent goodness ' ! - 
 Such being the temper of the national representatives, it is 
 not surprising to find Henry holding high their privileges, 
 as in Ferrers's case,^ or writing to the Pope, in 1529 : ' The 
 discussions in the English Parliament are free and unre- 
 stricted ; the Crown has no power to limit their debates, or 
 to control the votes of their members. They determine 
 everything for themselves, as the interests of the Common- 
 wealth require.' * 
 
 The reaction towards Absolutism which had set in during 
 the latter part of Henry VI.'s reign, culminated under 
 Henry VHI. ' We have got into a state of things,' observes 
 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 convocations were ready 
 to declare anything to be true and orthodox, at the mere 
 bidding of the capricious despot on the throne. We have 
 reached the state which our 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 insti- 
 tutions which were meant to declare right, and truth, and 
 
 * Freeman, Fortnightly Review, Sept. 1 87 1. 
 
 - Speech of Lord Chancellor Audley in 1536, Lords' Journals, p. 84 ; 28 
 Hen. VIII. c. 7 ; Froude, Hist. Eng. ii. 503. 
 =» Supra, 344. 
 •♦ Froude, Hist. Eng. i. 187. 
 
X.] Hen, VII., Hen. VIII, Edw. VI, Mary. 385 
 
 freedom, had been turned into engines of wrong, and false- 
 hood, and bondage.' ^ Independently of the general political 
 apathy to which allusion has been made, the extraordinary 
 subservience of Parliament during the Tudor age, so unlike 
 its demeanour at an earlier and at a later period, is to be 1 
 accounted for by the fact that the old nobility, the leaders 
 in former struggles for liberty, had been cut off in the 
 Wars 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 s-everal 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 ven- 
 geance which those monarchs 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 advance- 
 ment by acting the part of courtiers rather than of Parlia- 
 mentary 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, 
 Cromwell, Cecil, Bacon, and Walsingham. The rebellion 
 of the Earls of Northumberland and Westmoreland, in 
 1569, was as much a protest against the 'newe set-upp 
 nobles,' as against the * new-found religion ' and the incar- 
 ceration of Mary Queen of Scots, the representative of the 
 ancient Faith.^ At the same time the House of Commons, 
 
 1 Fortnightly Review, Sept. 1871. 
 
 2 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 
 
384 ^/^^ Tudor Period. [Ch. 
 
 under the restricted franchise introduced by the Act of 
 Henry VI., consisted largely of nominees, servants and 
 pensioners of the Crown. Under Henry VHL, Government 
 interference with elections became a common practice, 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 importance of the national 
 assembly. Under Elizabeth, the Commons began to 
 resume their firm tone and bearing, and thenceforth 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 improvement to 
 record. The power of the Crown steadily increased until it 
 acguir^d dangerous proportions ; but it was usually exercised 
 with discretion; and tjie want of ajstanding 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 barbarous manner, but which effectually 
 secured the nation against general and long-continued 
 oppression.' ^ In the meantime, amidst the political leth- 
 argy of the great mass of the people, a silent transfer of 
 power was taking place. The commercial wealth of the 
 middle classes enabled them to buy up the estates of 
 the old landed proprietors, and Feudalism gradually died 
 out.^ The persecution of the Puritans roused up a spirit 
 
 space of twelve yeares nowe past set upp and mayntayned a new-found religion 
 
 and heresie contrary to God's word.' — Lingard, Hist. Eng. viii. 45. 
 
 1 Macaulay, Hist. Eng. i. 31. 
 
 The Law ot ^ The law of strict entail established by the Statute De Bonis conditionalibus 
 
 Eniau, (13 Edw. I. c. i, called also the Statute of Westminster the Second) endured 
 
 for about 200 years. But in the 12th E^dw. IV. a decision of the Judges in the 
 
 celebrated Taltaruni's case had restored the power of alienation by means of 
 
 the collusive Judicial proceeding termed a recovery. Another mode of barring 
 
i 
 
 X.] Hen. VII,, Hen. VIIL, Edw, VI, Mary, 385 
 
 of opposition to the Crown, and the struggle for Religious 
 freedom led on to the vindication of Political freedom also. 
 Under Elizabeth, opposition was restrained by her personal 
 popularity, and by the feeling that a strong government 
 was necessary amidst the perils to which both she and the 
 nation were exposed from the Pope, from Spain, and from 
 France ; but this forbearance ended with the advent of the 
 House of Stuart. At the commencement of the Tudor • 
 period England was a single kingdom, distracted and ; 
 impoverished by a sanguinary civil war, with Scotland as a 
 thorn in her side, and Ireland as a disturbed dependency. 
 At the accession of the House of Stuart, she had reached 
 the zenith of material prosperity, and assumed the position ^ 
 of a United Kingdom. 
 
 The results of the protracted contest between the Crown Henry VII. 
 and the people during the middle ages are thus concisely ^^ 5-i509- 
 summed up by Hallam, in enumerating the essential 
 checks upon the Royal authority existing at the accession Checks on 
 of Henry VH. (i) ' The King could levy no sort of new ^^'hodty! 
 tax upon his people, except by the grant of his Parliament, Taxation, 
 consisting 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 Legislation. 
 previous assent and authority of the same assembly were 
 
 an estate tail, though not so effectually as by a recovery, was by a Jtne, a 
 fictitious action, commenced and then compromised by leave of the court, and 
 which barred all claims on the part of the issue not made within a year and a 
 day afterwards. This power of barring future claims was taken from fines by 
 statute 34 Edw. III. c. 13 ; but it was again restored, with an extension of 
 the time of claim to five years, by the Act i Ric. III. c. 7, which was re- 
 enacted in the Statute of Fines, 4 Hen. VII. c. 24. The deep designs attri- 
 buted to Hen. VII., in procuring the passing of the Statute of Fines as a 
 means of exalting the Royal authority upon the ruins of the aristocracy, have 
 been shown by Hallam to be without foundation. (Const. Hist. i. 11.) The 
 statute afforded, indeed, some slightly increased facilities for the alienation of 
 land, by establishing a short term of prescription, but its efficiency as regards 
 barring entails depended upon a Judicial construction of it in the 19 Henry VIIL, 
 confirmed by statute 32 Henry VIII. c. 36. 
 
 C.H. C c 
 
386 The Tudor Period, Ch. 
 
 necessary for every new law, whether of a general or 
 Personal 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 
 Trial by sessions of gaol-delivery. (4) The fact of guilt or inno- 
 J"'^^' cence, 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 
 Legal lia- to the same decision. (5) The officers and servants of 
 servants?/ the Crown, violating the personal liberty or other right of 
 the Crown, 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 
 Impeach- King.' ^ To these may be added, (6) The liability of the 
 Ministers King's Ministers to be impeached by the Commons for 
 [dormant misgovernment. This Constitutional right had not indeed 
 Tudors, been exercised since the reign of Henry VI., and lay dor- 
 revived /. mant throus^hout the Tudor period, but it was dormant 
 
 Jac. I.]. ^ . 
 
 only, and with the revival of the spirit of liberty under 
 James I. the right of Impeachment was re-asserted. Indeed, 
 all these securities, though undoubtedly established by law, 
 were more or less evaded in actual practice by the violent 
 and unconstitutional acts 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 effective restraint upon the government, except in the 
 two articles of levying money and enacting laws.' ^ 
 Henry Vll.'s Henry VII. has been eulogised by Lord Bacon as 'the 
 best lawgiver to this nation since Edward I.' His laws are 
 characterised by the same author as * deep and not vulgar, 
 not made upon the spur of a particular occasion for the 
 
 ^ Hallam, Const. Hist. i. 2. 
 2 Ibid. i. 5. 
 
X.] Hen. VIL, Hen. VHL, Edw. VL, Mary. 387 
 
 present, but out of providence for the future, to make the 
 , estate of his people still more and more happy, after the 
 manner of the legislators in ancient and heroical times/ ^ 
 But this high praise is very inadequately supported by the 
 actual facts. The laws 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 factOy and the statute by which a new court was 
 erected rev ivinc^ the authority of the Star Chamber — at 
 all approach Lord Bacon's general description ; and even 
 these, 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 
 attending upon the King and sovereign lord of this land o^the™^^t 
 for the time being, and doing him true and faithful service, under a King 
 shall be convicted of high treason by Act of Parliament or ^J^^^ ^' 
 other process of law, nor suffer any forfeiture or punish- 
 ment ; but that every Act made contrary to this statute 
 shall be void and of no effect' - The attempt 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.' •' 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 subject's allegiance, and justifies his 
 resistance of those who may pretend to a better right.' At 
 the trial of the Regicides after the Restoration, some oi 
 them endeavoured to justify themselves under this Act by 
 pleading that they had obeyed the Government which was 
 in possession, and were therefore 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 
 
 ^ Bacon's Life and Reign of Henry VII. 
 
 '^ II Hen. VII. c. i. 
 
 3 Bacon's Henry VII. ii. i6o. 
 
 C C 2 
 
388 
 
 The Tudor Period. 
 
 [Cir. 
 
 of Star 
 Chamber 
 revived. 
 [3 Hen. 
 YIIL] 
 
 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 Bancroft and certain 
 of the Tory party.^ 
 Criminal Henry's attention was early directed to the prevention of 
 
 of"he coun conspiracies among the adherents of the House of York, 
 by which his throne was perpetually threatened during the 
 earlier portion of his reign.^ The practice of * mainten- 
 ance ' by which a number of individuals associated together 
 under some powerful nobleman, whose livery they wore 
 and to whom they were bound by oaths and promises, for 
 the purpose of forcibly maintaining his and their own 
 private quarrels, afforded a ready means of raising forces 
 at short notice to assist the claims of any Pretender. 
 Although prohibited by statute, this practice of giving 
 liveries to numerous retainers had become general through- 
 out the kingdom. With the view of effectually suppress- 
 ing it, Henry procured the passing of the statute in the 
 third year of his reign, by which the Criminal jurisdiction 
 of the ancient Concilium Ordinariiim exercised in the Star 
 Chamber was revived and transferred to a new and spe- 
 cially constituted court.^ 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 
 
 1 See Macaulay, Hist. Eng. ii. 356, 372. 
 
 - Hatred of the House of York was with Henry VH. a passion which even 
 political considerations of expediency could hardly control. ' He never 
 seemed to be weary,' says Mr. Campbell (Materials for Hist, of Hen. VH., 
 Roll Series, Introd. xiii.) * 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 seemed to have received a standing order to introduce this hateful 
 formula into every paper connected with Richard's name, however insignificant.' 
 
 ■' See supra, p. 193. 
 
X.] Hen, VII,, Hen, VIII, Edw. VI, Mary. 389 
 
 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 un- 
 lawful assemblies of people, and all combinations and 
 confederacies of them by liveries, tokens, and other badges 
 of factious dependence ; that the peace of the land may, 
 by these ordinances, as by bars of iron, be soundly bound 
 in and strengthened, and all force, both in court, country, 
 and private houses, be suppressed.' ^ 
 
 Henry VII. has been reproached with his insatiable Exactions of 
 avarice, but it is improbable that he amassed money ^""^^ 
 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 
 Lancastrian faction, he had learnt the value and power of 
 money as a means of buying future, and rewarding past 
 support.^ 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 sub- 
 sidies were granted, formidable insurrections broke out ; in 
 1488 in the North, under John a Chambre and Sir John insurrec- 
 Egremont ; in 1497 in Cornwall, under Thomas Flammock, andVAo;. 
 an attorney, and Michael 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 
 
 * 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 con- 
 sidered ought to have been said. In any case, it accurately expresses the object 
 of the statute passed. 
 
 2 Notwithstanding his rigid and business-like economy, and his eagerness in 
 the acquisition of wealth, Henry VII, was liberal in spending where an impor- 
 tant 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 sub- 
 ject and faithfull liegeman hath doone unto us, as wele beyond the see as on 
 this side in oure moost victorious journay and triumphe, and so dw'ing his lyfe 
 entendeth to do heraftre. ' 
 
390 
 
 The Tudor Period, 
 
 [Ch. 
 
 BenevO' 
 lences. 
 
 Morton's 
 Fork. 
 
 killed, and 1,500 made prisoners.^ 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 HI.'s only Parliament as an in- 
 tolerable grievance. A Benevolence extorted by the King 
 in the 7th year of his reign, received, four years later 
 (1492), a kind of Parliamentary sanction by "a shoring or 
 under-propping Act," making legally payable under pain of 
 imprisonment, the arrears which private individuals had 
 promised but not brought in.- The inquisitorial and arbi- 
 trary 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 bene- 
 volence to a higher rate ; and some called it his fork, and 
 some his crotch. For he had couched an article in the in- 
 structions 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 
 Other modes neither kind came amiss.' ^ In addition to Benevolences 
 money."^ Henry extorted large sums by suing for penalties under 
 obsolete statutes, by rigorously exacting the extreme 
 feudal rights of the Crown, and by employing 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 
 Empson and purpose, of the notorious Richard Empson and Edmund 
 Dudley,* 'lawyers in science and privy counsellors in 
 authority, who turned law and justice into wormwood and 
 
 Dudley. 
 
 ^ Lingard, Hist. Eng. v, 299, 314. 
 
 " II Hen. Vn. c. lo. [Other Benevolences were levied in 1528 and 1545. 
 Dowell, Hist, of Taxation^ i. 202-3. — Ed.] 
 
 =* Bacon, op. cit. p. 121. [Claimed for Bp. Fox, N.&^Q.^ 7th S. ix. 443.— Ed.] 
 
 '» [Dudley was son of John Sutton, who assumed the name of Dudley, and 
 who was second son of John, 4th Lord Dudley, K.G., (cr. 1342), representative 
 of the Suttons, Lords of Sutton-upon-Trent. He married his ward, Elizabeth, 
 daughter of lulward Grey, ist Viscount Lisle (cr. 1483), and was by her father 
 of John, Duke of Northumberland (cr. 6 Edw. VL, 1 551). —Ed.] 
 
X.] Hen, VII., Hen. VIII. , Edw. VI, Mary. 391 
 
 rapine.' ^ 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 resent- 
 ment the agents of his father's extortions, the new King 
 was careful to retain the fruits of their iniquity in his 
 treasury.^ 
 
 Throughout his reign of twenty-four years Henry VII. Parliament 
 summoned Parliament only seven times, and during the ^^^^^^ ^y"^' 
 last thirteen years only once, in 1 504. To obtain money Henry VII, 
 was the object on each occasion ; but, like his predecessors, 
 he submitted the expediency of his wars to the considera- 
 tion and advice of the National Council. His first Parlia- His riches 
 ment had granted him the duties on tonnage and poundage "^j-^cti^alT 
 for life,^ and the wealth which he amassed by the various independent 
 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 Parlia- 
 mentary control. 
 
 The peculiar characteristics of Henry VIII. 's reign, — the Henry 
 subservience of Parliament, the real despotism of the King i^^^' ^ 
 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 Taxation, 
 poundage for life : but with a proviso * that these grants be 
 not taken in example to the Kings of England in time to 
 come.' * Liberal subsidies were granted by the four foUow- 
 
 1 Bacon's Henry VII. p. 217. 
 
 2 In order to conciliate the nation, an Act (i Hen. VIII. c. 3) 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. 
 
 3 Rot. Pari. I Hen. VII. 
 
 4 I Hen. VIII. c. 20. 
 
392 The Ticdor Period. [Ch. 
 
 ing Parliaments for the prosecution of the war with France ; 
 Wolsey's but, in 1 523, Wolsey took the indiscreet step of going to 
 attempt to the House of Commons, and personally urging the grant 
 the Com- of ;^8oo,ooo, an unprecedented sum, to be raised by a 
 mons. 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 urged the grant of the sum demanded as the estimated 
 cost of the expedition. But all the independent Members 
 opposed a vigorous resistance. Wolsey came down to the 
 House a second time, but the Commons received his 
 harangue with silence ; ' and when the minister demanded 
 some reasonable answer, every member held his peace. 
 At last the Speaker, falling on his knees, with much rever- 
 ence excused the silence of the House, abashed, as he said^ 
 at the sight of so noble a personage, who was able to amaze 
 the wisest and most learned men in the realm : but with 
 many probable arguments he endeavoured to show the 
 Cardinal that his coming thither was neither expedient, nor 
 agreeable to the ancient liberties of that House ; ' ^ it being 
 the usage of the Commons to debate only amongst them- 
 selves. After fifteen days' debate, a subsidy, much inferior 
 in amount to that which the Cardinal had demanded, and 
 payable by instalments in four years, was at length granted, 
 mainly through the influence of the servants and de- 
 pendents of the Crown holding seats in the House. * I 
 beseke Almightie God,' wrote a member of the Commons 
 to the Earl of Surrey, *it may bee well and peasibly 
 levied, and surely payed unto the Kings grace, with oute 
 
 ^ More's Life of Sir T. More. 
 
X.] Hen, VIL, Hen, VHI., Edw. VL, Mary. 393 
 
 grudge, and specially with oute losyng the good wills and 
 true herts of his subjects, which I rekene a ferre grettir 
 treasure for a King then gold or silver. And the gentil- 
 men which muste take paynes to levy this money among the 
 Kings subjects, I think shalhave no little besynes about 
 the same.' ^ This manifestation of an independent spirit ^ 
 among some of the Commons' House was agreeable neither \ 
 to the King nor the Cardinal ; and for nearly seven years I 
 Parliament was not again summoned. 
 
 In the meantime recourse was had to forced loans and Forced loans 
 Benevolences. A forced loan had been already exacted in f"nces.^"^^°' 
 1522, every man being required to swear to the value of 
 his possessions, and to contribute a rateable portion accord- 
 ing to such declaration, on the King's promise of repay- 
 ment out of the next subsidy granted by Parliament.^ In 
 1525, soon after the news of the battle of Pavia had been 
 received, fresh Commissioners were appointed with instruc- 
 tions 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 remon- 
 strate were warned to beware, lest * it might fortune to cost 
 some their heads.' The clergy boldly stood upon their privi- 
 lege to grant money only in Convocation ; asserting that 
 the Commission was contrary to the liberties of the realm, 
 inasmuch as the King could take no man's goods without 
 the authority of Parliament. By preaching and example 
 they animated the people to resistance. * When this matter 
 was opened through Englande,' says the old chronicler Hall, 
 
 ^ Ellis's Letters Illustrative of English History, i. 221. 
 
 2 The form of these ' privy seals,' as the King's promises of repayment were ^ Privy 
 called, ran: 'We Henry VIII. by the grace of God, King of England and seals.' 
 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 fourteenth year of our 
 
 reign,' — MS. Instructions to the Commissioners, cited in Hallam, Const. 
 Hist. i. 19. 
 
394 ^/^^ Tudor Period. [Ch. 
 
 * howe the greate men toke it was maruell, the poore curssed, 
 the rich repugned, the light wittes railed, but, in conclu- 
 sion, all people curssed the Cardinal, and his coadherentes 
 as subversor of the Lawes and libertie of Englande. For 
 thei saied, if men should geue their goodes by a Commis- 
 sion, then wer it worse then the taxes of Fraunce, and so 
 England should be bond and not free.' The Royal Com- 
 missioners being forcibly resisted in several counties, and a 
 serious insurrection having broken out in Suffolk, Henry 
 was at length obliged to annul the obnoxious Commission, 
 and ' the demaunde of money seased in all the realme, 
 for well it was perceiued that the commons should none 
 paie.' ^ 
 
 The forced loan having failed, recourse was now had 
 to the more specious demand for a voluntary Benevo- 
 lence. This being objected to by the citizens of London, 
 as illegal under the statute of Richard III., the Judges 
 were consulted, and gave answer that the statute, as 
 the work of an usurper, was not binding on a lawful 
 sovereign. 
 
 In 1544 another forced loan was exacted from all 
 persons rated at ^50 per annum; and in the following 
 year a general Benevolence from all persons having land 
 to the annual value of 40^-., or chattels worth ;£" 15. The 
 Commissioners were instructed that ^ if any one should with- 
 stand their gentle solicitations, alleging either poverty or 
 some other pretence which the commissioners should deem 
 unfit to be allowed, then, after failure of persuasions and 
 reproaches for ingratitude, they were to command his 
 attendance before the Privy Council, at such time as they 
 should appoint, to whom they were to certify his behaviour, 
 enjoining him silence in the mean time, that his evil ex- 
 ample might not corrupt the better disposed.' ^ The con- 
 sequence of refusing to contribute may be learnt from the 
 
 ^ Hall, 696, 700. 
 
 2 Lodge, Illustrations of British History, i. 711 ; Hallam, Const. Hist. 
 
 24. 
 
X.] Hen, VII., Hen. VIII. , Edw. VL, Mary. 395 
 
 oppressive treatment of two aldermen of London, Richard Oppressive 
 Reed and Sir William Roach. Reed was sent down to Aldermen 
 serve as a common soldier on the Scottish border, where Reed^and 
 the English army was then in the field, with special instruc- 
 tions to the General to employ him on the hardest and 
 most perilous duty, and to ' use him in all things according 
 to the sharpe disciplyne militar of the northern wars.' ^ 
 Having been taken prisoner in the first engagement, the 
 unhappy alderman was compelled to pay much more for 
 his ransom than the Benevolence required of him. Sir 
 William Roach received the milder punishment of impri- 
 sonment for three months, on a charge of uttering seditious 
 words.2 
 
 The forced loans were nominally secured, as we have The King 
 seen, by the King's promises of repayment ; but even this {^s^edTom 
 shadowy hope of reimbursement was taken away by the his debts by 
 
 /•IT.,. ^ . \ \r' Act of Par- 
 
 Acts of a servile Parliament. On two occasions the King Uament. 
 
 was formally released from his debts. In 1529 a statute 
 was passed by which the Parliament, ' for themselves 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 present 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 obli- 
 gation of repayment, or by any taxation or other assessing 
 by virtue of any commission or commissions, or by any 
 other mean or means, whatever it be, heretofore passed for 
 that purpose.' ^ When this release of the loan. Hall tells 
 us, ' was knowen to the commons of the Realm, Lorde so 
 they grudged, and spake ill of the hole Parliament ; for 
 
 ^ Lodge, Illustrations, p. i8o. 
 
 - Lingard, vi. 347. 
 
 3 21 Hen. VIII. c. 24. 
 
396 The Tudor Period, [Ch. 
 
 almoste euery man counted it his det^e, and reconed 
 suerly of the payment of the same, and therefore some 
 made there wills of the same, and some others did set it 
 ouer to other for debt, and so many men had losse by it, 
 which caused them sore to murmur, but ther was no 
 remedy.' ^ Again, in 1544, just after the exaction of a 
 fresh loan, an Act was passed granting to the King all 
 sums borrowed from any of his subjects since 1542, with a 
 further provision that any money which his Majesty should 
 have already paid in discharge of these debts, should be 
 refunded by the creditor or his heirs.^ 
 Newtrea- Under Henry VIII., the offence of High Treason was 
 by"statu?e^^ vexatiously and wantonly extended far beyond the limits 
 marked out by the ancient statute of Edward III. It was 
 made treason to dispute, and afterwards to maintain, the 
 validity of the King's marriage with Anne Boleyn, or the 
 legitimacy of her daughter Elizabeth. It was declared 
 1 treason to marry without the Royal licence, or have a 
 criminal intercourse with, any of the King's children 
 ' lawfully born, or otherwise commonly reputed to be his 
 children, or his sister, aunt, or niece ; ' or for any woman 
 to marry the King himself, unless she were chaste, or had 
 previously revealed to him her former incontinence. It 
 was treason to wish by words to deprive the King of his 
 title, name, or dignity, (including the title of Supreme 
 Head on earth of the Church of England) ; to call the 
 King a heretic, or schismatic, openly to wish him harm, or 
 to slander him, his wife, or his issue.^ The guilt of treason 
 was even extended from deeds and assertions to the very 
 thoughts of men. It was incurred *by any person who 
 should by words, writing, imprinting, or any other exterior 
 act, directly or indirectly accept or take, judge, or believe, 
 that either of the royal marriages, that with Catherine or 
 that with Anne Boleyn, was valid, or who should protest 
 
 1 Hall, 767. 
 
 2 25 Hen. VHI. c. 12. 
 
 3 25 Hen. VHI. c. 22 ; 26 Hen. VHI. c. 13 ; 28 Hen. VHI. c. 18 ; 32 
 Hen. VHI. c. 25 ; 33 Hen. VHI. c. 21. 
 
X.] Hen. VIL, Hen. V/H, Ediu. VI., Mary. 397 
 
 that he was not bound to declare his opinion, or should 
 refuse to swear that he would answer truly such questions 
 as should be asked him on those dangerous subjects.' ^ ' It 
 would be difficult,' says Lingard, ' to discover, under the 
 most despotic governments, a law more cruel and absurd. 
 The validity or invalidity of the two marriages was cer- 
 tainly matter of opinion, supported and opposed on each 
 side by so many contradictory arguments, that men of the 
 soundest judgment might reasonably be expected to differ 
 from each other. Yet Henry by this statute was authorised 
 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.' ^ 
 
 The Earl of Warwick, only son of the Duke of Clarence, illustrious 
 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 saved by the opportune death of the King, were 
 among the most conspicuous victims to Henry's ferocious 
 vengeance, 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.^ To obviate i^in^ of 
 
 Attainder. 
 
 1 28 Hen. VIII. c. 7 ; Lingard, vi. 372. ' 
 
 2 Hist. Eng, vi. 372. 
 
 3 [He was descended from Margaret Beaufort, sister of Henry and Edmund, 
 Dukes of Somerset, great-grand-daughter of John of Gaunt and Catherine 
 Swynford. See Table viii. in Bailey's Succession to the Crown. — Ed.] 
 
 ^ 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 evi- 
 dence, and the Lords are the sole judges. Attainder is a legislative act, which 
 must pass through the same stages as any other Act of Parliament. It may be 
 
398 The Tudor Period. [Ch. 
 
 all danger of refutation or of unpleasant disclosures, Crom- 
 well, by the King's express command, enquired of the 
 Accused Judges whether, if Parliament should condemn a man to 
 heardTn^^' die for treason without hearing him in his defence, the 
 their attainder could ever be disputed They replied that it 
 
 would form a dangerous precedent ; that Parliament should 
 rather set an example to inferior courts by proceeding 
 according to justice ; but that the court of Parliament 
 being supreme, an attainder in Parliament could never, 
 under any circumstances, be subsequently questioned in 
 a court of law.^ By the irony of fate, Cromwell was 
 himself the first to perish by an Act of Attainder 
 hurried through Parliament without hearing him in his 
 defence. 
 Act giving A remarkable example of the way in which Henry VIII. 
 the King's contrived to unite the exercise of practically absolute 
 tions the power with respect for Constitutional forms — to play the 
 force oflaw: ^j^gpot by the co-operation of his Parliament,— is afforded 
 by the Act giving the King's Proclamations the force of 
 law. The King having issued certain Royal Proclamations, 
 the Judges held that those who disobeyed them could not 
 be punished by the Council. The King then appealed to 
 Parliament to give to his Proclamations the force of 
 statutes. This request was complied with, but not without 
 ' many large words.' The Act recites the contempt and 
 disobedience of the King's Proclamations by some * who did 
 not consider what a King by his royal power might do,' 
 and then, in order ' that the King might not be driven to 
 extend his royal supremacy' enacts that Proclamations 
 made by him, with the advice of a majority of his Council, 
 should, under the penalty of fine and imprisonment, have 
 
 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 Edward II. A.D. 1321. 
 — (Proceedings against the Despencers, i St. Tr. 23, 38.) See supra, p. 
 335, n. 3. 
 
 ^ Coke, Inst. iv. 37. 
 
X.] Hen. VIL, He^u VII I., Edw. VI, Mary. 399 
 
 the force of statutes, but so that they should not be pre- 
 judicial to any person's inheritance, offices, liberties, goods 
 and chattels, or infringe the established laws. It was more- 
 over specially declared that such Proclamations should 
 derive all their force ' from the authority of this Act/ and 
 that no persons 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.' ^ 
 The fact that the King was obliged to obtain this statute, a striking 
 and the considerable limitations with which it was granted, to^fife*free 
 afford * a striking testimony to the free constitution it constitution 
 infringed, and demonstrate that the prerogative could not ^ ^" ""^^ * 
 soar to the heights it aimed at, till thus impelled by the 
 perfidious hand of Parliament.' " 
 
 We have seen how the despotism of Henry was ren- Power of the 
 dered possible by the decay and intimidation of the ^/eaTe^d by 
 nobility and by the obsequiousness of the Commons. His the assump- 
 arbitrary rule was still further augmented by the assump- Eccle- 
 tion of the Ecclesiastical supremacy, and the practical siastical 
 
 1^ ri- 1.11 supremacy ; 
 
 transfer to the Crown 01 the immense power which the 
 Church had hitherto wielded. The dissolution of the by the 
 monasteries not only supplied Henry with vast wealth ^dissolution 
 with which to bribe the Temporal Peerage into implicit monasteries ; 
 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 
 
 » 31 Hen. VIII. c. 8. 
 
 2 Hallam, Const. Hist. i. 35. By the Act 31 Hen. VIII. c. 8, transgressors 
 against the King's Proclamations were to be tried and punished by certain per- 
 sons enumerated therein, consisting of the usual ofiScers of the Privy Council, 
 together with some Bishops and Judges, ' in the star-chamber and elsewhere.' 
 The prescribed number proving inconveniently large, another Act was passed 
 in 1544 (34 Hen. VIII. c. 23) by which the jurisdiction was given to a tribunal 
 of nine Privy Councillors. 
 
400 
 
 The Tudor Period. 
 
 [Cir. 
 
 and by the 
 
 religious 
 
 disputes. 
 
 Popularity 
 of Henry 
 VIII. 
 
 opposition.^ The Religious disputes of' the Reformation 
 also contributed in no small 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 
 the whole popular with the mass of his subjects. The 
 times were peculiarly favourable for the exercise of a 
 strong paternal government. Henry secured to the 
 people that domestic peace for which they so ardently 
 longed ; and recognising 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 productive of no 
 material advantage, it flattered the pride of the English 
 people, and exalted them in the estimation 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 possessed an able, vigorous, and thoroughly 
 national administrator.^ 
 
 1 In the Parliament which met, after the dissolution of the monasteries, in 
 1539, there were present 41 Temporal Peers and only 20 Spiritual Peers. — Henry, 
 Hist. Eng. xii. 151. To the 21 old bishoprics Henry VIII. subsequently 
 added 6 new ones, — Westminster, suppressed in 1550, and Bristol, Chester, 
 Gloucester, Oxford, and Peterborough, which still exist. [It is proposed now 
 to revert to Henry's arrangement, and revive the separate existence of the see 
 of Bristol.— Ed.] 
 
 - 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 recognise the abilities and 
 greatness of Henry, that we should, with Mr. Froude, regard him as a virtuous 
 and beneficent ruler, which he certainly was not. 
 
X.] Hen. VIL, Hen. VHL, Edw. VI., Mary. 401 
 
 The consolidation of the kingdom with respect to both Consoiida- 
 Wales and Ireland, was considerably advanced under Kingdom. 
 Henry VIII. By the Statutiim Walliae (12 Edward I. 
 A.D. 1284) the land of Wales and its inhabitants, thereto- Wales : 
 fore only feudally subject to the kings of England, 
 had been wholly annexed and united to the English \ 
 crown. But, although many material alterations were at 1 
 the same time made in the Welsh laws, the conquered 
 people still retained several provincial immunities and dis- 
 abilities. They preserved their ancient rule of inheritance, 
 similar to the English Gavelkind, 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 [not repre- 
 1322 and 1326, to which 24 members were summoned as p^j-jj^rngj^t 
 representatives of South, and other 24 as representatives till 1543 
 of North Wales,^ the Welsh people had continued without 
 any representation in the House of Commons. By the 
 statute 27 Henry VI n., c. 26 (1536), 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 
 England ; and lands in Wales were declared to be inherit- 
 able after the English tenures and rules of descent. By a [divided into 
 subsequent statute (34 & 35 Henry VIII., c. 26), Wales 1543.]^^' 
 was divided into 12 counties,^ each empowered to send one 
 knight to Parliament ; and every borough, being a shire 
 town, was to send one burgess. In the same year (1543), 
 the County Palatine of Chester was admitted to Parlia- ^^5^^^^'^, 
 
 ^ and Chester 
 
 - enfran- 
 
 ^ Rymer, ii. 484, 649 ; Lingard, iii. 328. chised, 
 
 ^ This was exclusive of Monmouthshire, which, though formerly part of I543*] 
 Wales, had been made, by the 27 Hen. VIII. c. 26, before mentioned, one of 
 the counties of the realm of England, and as such entitled to return two 
 knights of- the shire to Parliament. 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 (i 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. 
 
 C.H. D D 
 
402 The Tudor Period. [Ch. 
 
 mentary representation, two knights for' the county, and 
 two burgesses for the city of Chester.^ 
 Ireland. During the Wars of the Roses, the authority of the 
 
 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 freedom 
 of independent princes. Under the strong government 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.^ It was with the view of reducing to sub- 
 jection the settlers within the Pale, that in 1495 was passed 
 Poynin^s's ^^ Celebrated Poynings's Law, as the statute of Drogheda 
 Laxv^ 1495. ^vas styled from Sir Edward Poynings, the deputy of young 
 • Henry, Duke of York (afterwards Henry VIII.), who at 
 
 the age of four years had been appointed Lord Lieutenant 
 of Ireland. \This statute contained a variety of provisions 
 for restraining the power of the great lords within the Pale, 
 i and strengthening the Royal authority. Its two most 
 / important enactments were : (i) All statutes ' lately made 
 
 1 34 & 35 Hen. VIII. c. 13. 
 
 * Lambert Simnel 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. [Mr. Bailey, on the other hand {Succes- 
 sion to the Cro7vn, p. 96), does not profess to doubt but that Perkin ' was an 
 impostor.' Yet his marriage seems a point in his favour. — Ed.] 
 
X] Hen. VIL, Hen, VHL, Edw. VI., Mary. 403 
 
 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 VI 1 1., 
 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 [restored] to the 
 higher rank of a Kingdom ; - the native chiefs came in and 
 submitted ; peerages were sought and obtained, not only by 
 the Anglo-Irish, but by some of the most powerful of the 
 old Irish families ; ^ and altjioiigh still far from secure, the 
 English government in Ireland assumed during the last 
 years of Henry VIII. a much more settled aspect than it 
 had borne for very many years previously. 
 
 ^ Const. Hist. iii. 362. 
 
 - Henry assumed the style of King of Ireland, January 23, 1542, under an 
 Irish Statutf, 33 Hen. VIII. c. i. The change was confirmed in 1544 by an 
 English Act of Parliament, 35 Hen. VIII. c. 3. 
 
 ^ William Bermingham was created Lord Carbery in 1541 ; Con O'Neill 
 and his son Matthew, respectively Earl of Tyrone and Lord Dungannon, in 
 1542 ; Morogh O'Brien was made Earl of Thomond, Ulick de Burgh, Earl of 
 Clanricarde, and Donough O'Brien, Lord Ibracken, in 1543. 
 
404 
 
 The Tudor Period. 
 
 [Ch. 
 
 EDWARD 
 VI., 1547- 
 1553. 
 MARY, 
 
 1553-1558. 
 Character of 
 their Civil 
 government. 
 
 New 
 
 treasons 
 abolished. 
 
 But are re- 
 enacted in 
 1552. 
 
 Two 
 witnesses 
 required in 
 cases of 
 treason. 
 
 The Ecclesiastical changes under Edward VI. and 
 Mary, as well as those effected by Henry VIII., will be 
 treated of in the succeeding chapter on the * Reformation 
 in England.' In their Civil aspect the reigns of Edward 
 VI. and Mary were scarcely, if at all, less despotic than 
 that of their father, although we shall see some signs that 
 the House of Commons was beginning to recover a little 
 of its ancient independence. The youth of Edward VL 
 precluded him from exercising any but a very slight influ- 
 ence upon affairs, the Royal power being practically vested 
 first in the Protector Somerset and afterwards in John 
 Dudley, Duke of Northumberland. 
 
 One of the first acts of the young King's advisers was to 
 endeavour to propitiate the nation by abrogating some of 
 the sanguinary and unconstitutional laws of Henry VI IL 
 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.^ 
 
 In 1552, however, after the fall of Somerset, many of the 
 treasons created under Henry VIII., and abolished by this 
 statute, were re-enacted, together with some new ones.^ 
 But in this Parliament the Commons exhibited an un- 
 wonted independence, and zcc^l for liberty and justice. 
 They threw out the bill as orig^inally framed by the Minis- 
 ters, and substituted one of a much more moderate nature, 
 in which was embodied what has been justly described as 
 * one of the most important constitutional provisions which 
 the annals of the Tudor family afford.' ^ 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 
 
 1 I Edw. VI. c. 12. 
 
 3 5 & 6 Edw. VI. c. II. 
 
 3 Hallam, Const. Hist. i. 40. 
 
X.] Hen. VII., Hen. VIII, Edw. VI, Mary, 405 
 
 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 shame- 
 lessly evaded, or utterly disregarded, in the State-trials 
 under Elizabeth and James I., this salutary statute was 
 ultimately recognised, when all ranks and parties had 
 learnt moderation in the school of adversity, as the foun- 
 dation of a rule of procedure which has afforded to the 
 subject ' a mighty safeguard against oppressive prose- 
 cutions.' ^ 
 
 1 Foster, Crown Law, 238. 
 
 Law of Treason. — The Law of Treason, with all its subtle distinctions 
 and cruel constructions, is so interwoven with the thread of English Constitu- 
 tional History, that some notice of it is absolutely necessary. In the following 
 brief sketch every important feature has been touched upon. The crime of 
 High Treason as it existed at Common Law prior to the statute of Edward IH. Treason by 
 was vague and indefinite. The fundamental principle upon which the law of the Common 
 treason was based, was the allegiance, either natural or local, due from every Law. 
 man who lives under the King's protection. Every subject from the age of 
 fourteen, was bound to take the oath of allegiance if called upon to do so 
 {Britton, lib. i. c. 13) ; but allegiance was equally due whether the oath had 
 been taken or not. The smallest breach of allegiance was punished as treason; 
 but the ruling of the Judges as to what constituted a breach was at once arbi- 
 trary 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 King'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 £go. At length, after frequent 
 complaints and petitions from the Commons against the arbitrary decisions of 
 the courts, the popular statute of 25 Edward III. st. 5, c. 2, was passed. Treason by 
 strictly defining the limits of treason (j«/r«, p. 288, n. 2). Seven heads of treason stat. 25 
 were declared by this statute, which also provided that no other cases should Edw. III. 
 be adjudged by the Judges to be treason until the King and his Parliament 1352. 
 should declare whether they ought to be so judged. The treasons enumerated 
 in the statute of Edward are : (i) ' 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 levy war against our lord the King in his realm, or (4) be ad- 
 herent to the King's enemies [ = a/zVw enemies, subjects of a hostile foreign power] 
 in the realm, giving them aid and comfort in the realm or elsewhere, \and in any 
 
4o6 The Tudor Period, [Ch. 
 
 Repeal of The same Act of Edward's first Parliament which re- 
 
 g^vi4*^the pealed the new-made treasons of Henry VIIL, repealed 
 
 such case] thereof be prox^eahly attainted of open deed by people of their condition 
 {par gents de lour cofidition—XhQ 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 Eng- 
 land, 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 determine, being 
 in their places, doing their offices.' 
 
 The offence of counterfeiting the King's seals or his coins ought always tcv 
 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. 
 {\.) Compass- (i) Compassing or imagining the death of the King. A king, within the 
 ing the meaning of the Act, must be in actual possession of the crown. Only a king 
 
 Kin^sdeath. de facto is the object of treason ; a king de jure, who merely has a title or claim 
 to the crown without possession, has no right to allegiance. Accordingly the 
 Act 2 Hen. 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 co7npass 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 especially requires that the traitorous 
 imagination be manifested by some overt or open act. Still, it is the mental 
 Overt acts act, which, under this head of the statute, constitutes the crime of treason ; and 
 of compass- therefore in the trial of the Regicides, in 1660, it was held that not the decapi- 
 ing. 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, in January 1606, 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 im- 
 prison the King has been constructively determined to be an overt act of com- 
 passing his death; 'for experience has 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 
 Correspond- treason. Entering into measures in concert with foreign powers to invade the 
 ing with kingdom, would seem more properly to fall under the head of levying war or 
 foreigners to of adhering to the King's enemies. But unless the powers incited be actually 
 invade the at war it will not fall within any branch of the statute, except compassing the 
 kingdom. 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 Patrick Harding, who raised and sent men to France, then at qpen war 
 with us, for the purpose of restoring James II. 
 Strained con- The Duke of Norfolk was convicted in 1572, contrary to all law and justice, of 
 structions of a treason resting on presumptions and inferences only. The overt act was his 
 the statute, 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 
 
X.] He7i, VII., Hen, VIII, Edw, VI. , Mary, 407 
 
 also the statute which had given to that monarch's Procla- King's Pro- 
 mations the force of law. But this made little practical the force of 
 
 law. 
 
 Mary had formerly laid claim to the crown, whoever married her would 
 
 support her 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 Levying 
 
 act of compassing. The statute 29 Hen. VI. c. i, which attainted Jack Cade ivar. 
 
 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 Words, 
 
 spoken, not relating to any treasonable purpose in agitation, are not an overt 
 
 act ; but words may expound an overt act, in itself indij^erent, and words of 
 
 advice and persuasion in contemplation or prosecution of a traitorous design, 
 
 actually on foot, may be overt acts. Words ivritten and published, either in written and 
 
 letters or books, where the matter contained imports a compassing, have hQQ.n published : 
 
 held overt acts. It was so held in 2Vj/«'j case (15 Car. II.), for publishing rj.^^»^ 
 
 " A Treatise of the Execution of Justice," asserting that the supreme magistrate ^^j^] 
 
 was accountable to the people, and that they might take up arms to put the 
 
 King to death : and in VVilliaiyis'' s case (17 Jac. I.), for enclosing and sending {.Williams's 
 
 in a box to James I. a book declaring that the King would die in the year co,se.'\ 
 
 162 1, and that the kingdom would be destroyed. Under the Stuarts, even 
 
 ttnpublished writings were made use of to convict their authors of treason, as in unpublished, 
 
 Peacham^s case {161 5), in whose study was found a manuscript sermon which \Peacham^s 
 
 had never been preached or published ; and in that of Algernon Sidney, at caseA 
 
 whose trial (in 1683) 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 (ii.) Levying 
 that of levying war, which lies not in the intention or purpose, but in the act war a^-ainst 
 itself. The levying must be against the King, which is either direct, against the King. 
 his person, or constructive, against his government. Enlisting and marching 
 have been held sufficient acts without coming to a battle or action. Attacking ^^^^ ^^ 
 the King's forces in opposition to his authority, upon a march or in quarters, levying. 
 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 ? and in order to constitute the offence, the 
 object of the assembly must be to effect by force something oi 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, 
 open 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 council 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 ti?ne 
 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 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 
 
4o8 
 
 The Tudor Period, [Ch. 
 
 But illegal change with regard to Royal Proclamations. Several were 
 
 Proclaitia- *> . *^ ^ 
 
 tions still issued during Edward's reign, enforced by penalty of fine 
 
 counsellors, — 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 inten- 
 tion 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 
 Dafnaree and Purchase, arising out of Sachevereli'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. 
 Conspiracies It is to be noted that the Statute of Edward III. entirely omitted in its 
 to levy war. enumeration of the modes whereby treason could be committed, to include 
 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. Notwithstanding 
 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. c. i ; 13 Car. II. c. i ; 36 Geo. III. c. 7). The dis- 
 position 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 
 36 Geo. III. 1794. Finally by the 57 Geo. III. c. 6, making perpetual the temporary Act, 
 c. 7, and 57 36 Geo. III. c. 7 (the main object of which seems to have been to turn into 
 Geo. III. substantive treasons certain things which had been judicially construed to be 
 c, 6. treasonable) it is enacted : (i) 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, maiming or wounding, imprison- 
 ment 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 
 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 counsellings or 
 persuasions in prosecution of a traitorous design actually on foot. Thus the 
 Treason- ^aw continued down to the year 1848, when the ii & 12 Vict. c. 12, * An Act 
 Felony Act^ for the better security of the Crown and Government of the United King- 
 II 6* 12 dom,' was passed. By this Act, commonly called the 'Treason-Felony Act,' 
 Vict. c. 12. 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 
 
X.] Hen. VIL, Hen, VHL, Edw, VI., Mary. 409 
 
 and imprisonment ; and by one issued in 1549, all Justices continued to 
 
 /. - T» 11 . 1 n ^^e issued. 
 
 of the Peace were commanded to arrest ' sowers and tellers 
 
 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 follow- Treasons 
 ing have been created by statutes still in force, (i) By i Anne, st. 2. c. 17, created by 
 s. 3, the endeavouring to deprive or hinder any person being the next in j Anne, st. 
 succession, according to the limitations of the Act of Settlement, from succeed- 2, c. 17 ; 
 ing 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 6 Anne, c. 7 ; 
 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. 234). (3) By 3 & 4 Vict. c. 52, s. 4 (having Z ^ A ^^<^i 
 reference to the contingency that any issue of the Queen should happen to c. 52. 
 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 Evidence. 
 as in every other capital case. But by the salutary Act, 5 & 6 Edw. VI. ,^, , , , 
 c. II, to which reference has been made in the text, it was enacted ' that no J\ " ^Sj- 
 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 evi- 
 dence. 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 advan- 
 tages 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, in 1660, 
 and upon Lord Stafford's trial, in 1680, it was treated as a point beyond all doubt 
 that the law required two witnesses ; and from the date of the Restoration the 
 wholesome distinction (subsequently established by the Statute of William III.) 
 appears to have been taken, that although the two 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 con- 
 joined with another deposing to an act of levying war, in order to make up the 
 required number. In 1691, a Bill for the regulation of trials upon charges of 
 high treason passed the Commons ; but 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 amendment of the Lords as to the trial of Peers in the court of Statute oj 
 the High Steward, delayed the passing of the measure until 1695, when it Williamlll. 
 became law as the Act 7 Will. III. c. 3. It provides that prisoners indicted 1695. 
 for high treason shall have a copy of the indictment delivered to them five 
 
4IO The Ttcdor Period, [Ch. 
 
 abroad of forged tales and lies/ and to commit them to the 
 galleys, there to row in chains as slaves during the King's 
 pleasure.^ The same practice 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, 
 declared that whosoever should be found to have such 
 
 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 prose- 
 cutions 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 con- 
 tested 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 of 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 
 Statute of that every Peer so summoned and appearing shall vote in the trial. By a later 
 [7] Anne, statute, 7 Anne, c. 21, the time for delivering a copy of the indictment to the 
 1708. prisoner was extended to ten days, and it was directed that a list of the wit- 
 
 nesses intended to be brought for proving the indictment, and of the jury, with 
 their professions and places of abode, should 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 
 The Riot than to enlarge the crime of treason. Since the passing of the ' Riot Act,* 
 Act^ I Geo. I. I Geo. I. st. 2, c. 5, the Government has 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 ii & 12 Vict. c. 12, to which 
 5 tSr* 6 Vict, reference has already been made. By another Act of the present reign, 5 & 6 
 c. 51. Vict. c. 51, the offence of any person discharging, pointing, aiming, or pre- 
 
 senting, at the person of the Queen, any gun or other arms (whether contain- 
 ing explosive materials or not) ; or striking at or attempting to throw anything 
 upon her person ; or producing any firearms or other arms, or any explosive or 
 dangerous matter near her Majesty's person ; — ivith 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 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 Sir Michael Foster, Crown Law ; Hale, Pleas 
 of the Crown; Kelyng, Crown Cases (3rd ed.) ; Hawkins, Pleas of the 
 Crown. 
 
 ^ Strype, ii. 149 ; Hallam, Const. Hist. i. 38. 
 
X.] Hen, VIL.Hen. VIII., Edw, VI, Mary, 411 
 
 books in his possession should be reputed and taken for a 
 rebel, and executed according to martial law.^ 
 
 The year 1549 was remarkable for the tumults and insur- Insurrec- 
 rections of the common people which arose in many counties. ^°"^^" ^549- 
 In Cornwall and Devonshire under Humphrey Arundel, 
 and in Norfolk under Ket, the risings assumed formidable 
 dimensions, and were suppressed with some difficulty. They 
 arose partly from opposition to the Reformed doctrines, but Their origin. 
 mainly from discontent at the proceedings of the land- 
 owners, who, regardless of the ancient commonable rights 
 of their tenants, made large enclosures of the waste or Enclosures 
 
 1 ^ r 1 • i_ • u of commons. 
 
 common lands of manors ; and, experience havmg shown 
 that the growth of wool was more profitable than that of 
 corn, converted the arable land into pasture. This strictly Arable 
 
 - . turned into 
 
 commercial mode of dealing with their estates was espe- pasture, 
 cially adopted by the newly-made nobles and gentry who 
 had acquired a large share of the confiscated abbey lands, 
 and both they and the Reformed religion which they pro- 
 fessed became objects of hatred to the thousands of agri- 
 cultural labourers whom the restriction of tillage had 
 thrown out of employment, and the cultivation of com- 
 mons had deprived of one great source of support.^ For 
 
 ^ 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 con- 
 nivance 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. ) 
 
 2 ' Parallel to the religious Reformation, social changes of vast importance 
 were silently keeping pace with it. In the break-up of feudal ideas the rela- 
 tions 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 tendencies had with great difficulty been held par- 
 tially 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. 
 
reign. 
 
 412 The Tudor Period, [Ch. 
 
 Act a^inst ' t^g suppression of these risings in future, a very severe 
 
 unlawful and . ^^ iit^i- • ^/-iiii 
 
 rebellious Act was passcd by rarliament against unlawful and rebel- 
 assembhes. Uqus 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.^ 
 Violence of Independently of the sanguinary Religious persecutions 
 reie'n.^ of Mary's reign, her Civil government was characterised by 
 much violence and arbitrariness. Reference has already 
 been made to her Proclamation ordering the possessors of 
 heretical and seditious books to be executed by martia 
 law. Her zeal for the restoration of the Roman Catholic 
 religion caused her to anticipate the authority of Parlia- 
 ment 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.^ She imposed a duty 
 upon foreign cloth without the assent of Parliament ; and 
 illegal modes of punishment, the torture especially, are 
 
 * more frequently mentioned in her short reign than in all 
 former ages of our history put together.' ^ 
 
 In 1557, a Commission was issued to Bishop Bonner and 
 others authorising them to inquire rigorously concerning 
 
 * 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 
 
 V. 107. ' It is the common 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. 
 
 1 3 & 4 Edw. VI. c. 15. 
 
 '^ 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 be 
 arrested on the spot and sent to London. ;^i 10,000 was collected under 
 this commission in spite of outcry and resistance. Commission for the 
 Loan, S.P., Mary, Domestic, vols. xi. xii., cited in Froude, Hist. Eng. v. 
 486. 
 
 3 Hallam, Const. Hist. i. 42. 
 
X.] Hen. VII., Hen. Vllly Edw. VI. , Mary. 413 
 
 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.^ 
 
 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 intro- 
 duced. 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.' 
 
 Mary was the first Queen regnant of England (for it is Doubts as to 
 unnecessary to take into account the nine days' usurpation of^a^ueen 
 of the unfortunate Lady Jane Grey) ; ^ and some doubts regnant : 
 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 pro- 
 hibited 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 questions at rest an Act was Settled by 
 
 Act of Par- 
 passed to declare that * the royal power and dignities, liament. 
 
 • Burnet, ii. 256 ; iii. 243. 
 
 2 I Mary, c. I, an Act to 'Repeal and take away Treasons, Felonies, and 
 cases of Praemunire.' 
 
 •' 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 and issued charters in Royal form, she 
 revet succeeded in making good her claim to the crown. 
 
414 The Tudor Period. [Ch. 
 
 vested in a queen the same as in a Kihg,' and that all 
 statutes in which a King was named applied equally to a 
 Queen.^ 
 Reviving Under Henry VIII. there is only one instance, in 1532, 
 
 mdepen- -when the Commons refused to pass a Bill recommended by 
 Commons : 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 in- 
 sertion 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. 
 Met by the These indications of reviving independence on the part 
 creation of ^f gome of the Commons were met by the creation of 
 
 rotten , ^ "^ 
 
 boroughs rotten boroughs and by the direct interference of the 
 fluencingthe Crown in elections. Edward VI. created or restored 
 elections. 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 Parliament 
 by no less than sixty-two Members. The interference of 
 the Crown in elections was exerted in the most open 
 manner. In 1553 Edward VI. directed a circular letter to 
 all the sheriffs, commanding them to apprise the free- 
 holders, citizens, and burgesses of their respective counties, 
 ' that our pleasure and commandment is, that they shall 
 choose and appoint, as nigh as they possibly may, men 
 of knowledge and experience within their counties, 
 cities, and boroughs ; ' and especially that whenever the 
 Privy Council, or any of them, having instructions on the 
 King's behalf, should * recommend men of learning and 
 wisdom, in such case their directions be regarded and 
 followed.' Accordingly several persons — all of them be- 
 longing 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.^ The writs for the Parlia- 
 
 ^ I Mary, sess. 3, c. i. 
 
 2 Hallam, Const. Hist. i. 45, citing Strype, ii. 394. What appear to be first 
 drafts of circular letters are preserved in Lansd. MS. 3, cited by Froude, v. 
 
X.] Hen, VII., Hen. VIII., Edw. VI., Mary, 415 
 
 ment summoned by Mary in 1554, to sanction the return 
 of the country to obedience to the Apostolic See, were 
 accompanied in Hke manner by Royal circulars requiring 
 the mayors, sheriffs, and other influential persons to ad- 
 monish the electors to choose as their representatives 
 ' such as, being eligible by order of the laws, were of a 
 wise, grave, and Catholic sort ' ; ^ and the Earl of Sussex, 
 one of the Queen's councillors, wrote to the electors of 
 Norfolk and to the burgesses of Yarmouth requesting 
 them to reserve their votes for the persons whom he should 
 name.^ 
 
 464, n, I. 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 otherwise to 
 have some place in the House, like as all others of your degree be ap- 
 pointed. 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. ' Harl. MS. 523, in Froude, v. 465. 
 
 ^ Froude, vi. 260. These general directions were copied from a form which 
 had been in use under Henry VH. 
 
 2 Burnet, ii. 228. 
 
 [On the Tudor period, M. Glasson, Hist, du Dr. et des Inst. Pol. de PAngL, 
 V. c. I, notes both the historical development of the English Reformation from 
 causes long in operation, and the extension of English influence in Continental 
 politics. For Edw. VI. he refers to the Relazione of Daniel Barbaro, 
 Ambassador from the Venetian RepubHc, 1548-50, printed in Alberi, Rel. 
 viii. 238 seqq. On the Venetian Relazioni, and their importance, see in North 
 British Kevinv^ June, 1866, an interesting article based on the collections of 
 Alberi and Berchet, and the special works of Tommaseo and Baschet, The 
 'Tudor Monarchy' forms the subject of the opening chapter in vol. i. of the 
 edition in 10 yols., cr. 8vo., Lond. 1883, of the valuable History of England, 
 1603-1642, by S. R. Gardiner, LL.D.— Ed.] 
 
4i6 
 
 CHAPTER XL 
 
 THE REFORMATION IN ENGLAND. 
 
 The Re- The separation of the Church of England from that of 
 
 under^Henry Rome, formally accomplished under Henry VIII., was a 
 viiLPoiiti- Political and Legal rather than a Religious reformation, 
 rather than The doctrinal changes which followed under Edward VI. 
 Religious. ^^^ Elizabeth, were an unintentional consequence, to which 
 changes Henry and his Parliament more than once declared them- 
 ""^?^/ selves utterly repugnant. But in reality the Reformation, 
 and Eliza- in both its Political and Religious aspects, was the effect of 
 intentionar causes which had been in operation for centuries, not only 
 conse- in England, but throughout Europe. * No revolution,' says 
 
 quence. Hallam, * has ever been more gradually prepared than that 
 
 Both were i l r r t- r 
 
 the eflfect of which Separated almost one half of Europe from the com- 
 causes long j^^m^jon of the Roman see ; nor were Luther and Zwins^le 
 
 in operation. ^ ' o 
 
 any more than occasional instruments of that change 
 
 which, had they never existed, would at no great distance 
 
 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.' ^ 
 
 Early and In England, the Church, from its first institution, had 
 
 National always possessed a marked National character. The 
 
 *h^ F^^? vf spiritual primacy of the Pope and his authority in matters 
 
 Church. of Faith were reverently admitted, but the relation was 
 
 rather that of mother and daughter than of master and 
 
 1 Hallatn, Const. Hist. i. 57. 
 
XL] The Reformation in England. 417 
 
 servant;^ while the exorbitant claims of jurisdiction and 
 territorial power asserted by Hildebrand and his successors, 
 together with the pecuniary exactions founded on those 
 claims, were persistently, though with varying degrees of 
 firmness, resisted by the English kings and people. 
 
 Prior to the Norman Conquest, Church and State in Practical 
 England were so intimately united that they were prac- ch^rch and 
 tically identical. William of Normandy, to further his State before 
 designs on England, entered into an alliance with the Conquest^" 
 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 subordi- 
 nation to the Papal See. But anxious as he was to pro- 
 pitiate the See of Rome, William was careful not to 
 surrender the ancient supremacy of the State over the 
 National Church.^ Still, the impetus given by the Conquest Growth of 
 to the Papal power in England caused it to go on rising, from th e^^^*^ 
 until — notwithstanding the partial checks which it received Conquest till 
 under Henry I. and Henry H., on the questions of Investi- Henry III. 
 tures and clerical immunity from Civil jurisdiction — it 
 reached its acme under John and Henry HI. For one 
 hundred and fifty years succeeding the Conquest 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 Cla- 
 rendon, 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 
 
 ^ For the maternal status of the Church of Rome, see S. Bernard and 
 Hildebrand. ' . . . ante omnia S. R. Ecclesiam, . . . Ecclesiarum Matrem 
 esse non Dominam, te vero non Dominum episcoporum sed unum ex ipsis.' 
 S. Bern., De Consid. 1. iv. c. vii. ' Dei Ecclesia, quae Mater et Domina nostra 
 est.' Greg. VII. Lib. V. Ep. 20. [But John of Salisbury, no less than 
 Frederick II., complains of ihe mater as becoming a noverca, Polyc. vi. 24. 
 The Lollards called the Roman Church noverca, and the English Church 
 Ecclesia nostra. — Ed.] 
 
 2 Supra, p. 75. 
 
 C.H. E E 
 
41 8 The Reformation in England, [Ch. 
 
 the Great Charter the Church recovered .its liberties ; the 
 right of free election being specially conceded to the 
 cathedral chapters and the religious houses. Every elec- 
 tion 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 eccle- 
 siastical. * There was thus in the Pope's hand,' remarks an 
 eminent historian,^ ' 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 consideration. In the 
 case of nominations to the religious houses, the superiors of 
 the various orders residing abroad had equal facilities for 
 obstructiveness.' Under Henry HI. 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. Edward I. firmly withstood the exactions of the Pope, 
 Papal dalms ^"^ re-assertcd the independence of both Church and 
 andexac- Crown. To the letter of Boniface VHI. claiming to be 
 . ■ ^ feudal lord of Scotland, and commanding- Edward I. to 
 
 Answer of ^ 
 
 the English withdraw his troops from that kingdom and submit his 
 t^^theTelter Pretensions to the decision of the Papal see, the Parlia- 
 of Boniface ment of England returned a very emphatic repudia tion of 
 the Pope's Temporal jurisdiction. ' The Kings of England, 
 they'"sar(J, '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, ecclesiastical 
 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 Scotland, or other 
 
 * Froude, Hist. Eng., ii. 3. 
 
XL] The Reformation in England. l.[9 
 
 his temporal rights, our aforesaid lord the King shall not 
 plead before you, nor submit in any manner to your judg- 
 ment, nor suffer his right to be brought in question by any 
 inquiry, nor send agents or procurators 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.' ^ 
 
 In the reign of the great Edward began a series of Series of 
 statutes passed to check the aggressions of the Pope, and passed^to 
 restore the independence of the National church and king- check the 
 dom. Xhe first of the series was passed in 1306-7. It of the^Pope. 
 recites that * the abbots, priors, and governors of religious De Aspor- 
 houses, and certain aliens their superiors, as the abbots and ^^^^^^^ ^ ^^'^" 
 priors of the Cistertians, the Premonstrants, the orders of 35 Edward I. 
 Saint Augustine and of Saint Benedict, and many more of To prevent 
 other religions and orders, have at their own pleasure set superiors 
 
 1- 1 1 , 1 1 11. resident 
 
 divers heavy, unwonted, and unportable talliages, payments abroad from 
 and impositions upon every of the said monasteries and on^Enflish^^ 
 houses subject unto them in England, Ireland, Scotland rehgious 
 and Wales, without the privity of the King andr 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, alms- 
 giving 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 permis- 
 sion 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 religious person 
 should, directly or indirectly, secretly or openly, carry or 
 send any tax, rent or talliage, imposed by the superiors, or 
 
 1 Rymer, ii. 873-875. 
 
420 The Reformation in England. [Ch. 
 
 assessed amongst themselves, out of the kingdom ; and that 
 ' priors aliens ' should not presume to assess any such pay- 
 ment whatever upon religious houses subject to them.^ 
 V^*-^*"'*'^ This statute was confirmed under Edward III. in the 
 
 4th, and again in the 5th year of his reign ; and in the 25th 
 of his reign, roused * by the grievous complaints of all the 
 commons of his realm,' the King and Parliament passed 
 Statute of the famous Statute of Provisors, ainied directly^ at the Pope, 
 2^Edw1[il ^^^ emphatically forbidding his nominations-^to English 
 1351- bengEces. 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 ances- 
 tors 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 . . . , 
 the same kings, earls, barons, and other nobles, as lords and 
 advowees, 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 ; the Pope [Pape] of 
 Rome accroching to him the seignories of such possessions 
 and benefices, doth give and grant the same benefices to 
 aliens, which did never dwell in England, 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 
 
 ' 35 Edw. I. St. i. c. 1-4. 
 
 2 [This statement as to the foundation of the English Church is not histori- 
 cally accurate. — Ed. 
 
XL] The Reformation in England. 421 
 
 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 carried away and dispended out of the realm 
 by the purchasers 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 jwas _ therefo re 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 ' provi sors,' who should ob tain benefices from Rome by 
 purc hase or otherwise.^ / jd .0 
 
 TKree years afterwards it was found necessary to pass a Statute for- 
 statute, forbidding citations to the Court of Rome. It was citJums to 
 based upon * the grievous and clamorous complaints of the *^^ ^^^*^^ ^ 
 
 , lit. /. . , , ^ome, 27 
 
 great men and commons, how that divers of the people be Edw. III. 
 and have been drawn out of the realm to answer of things ^*- \- 
 whereof the cognisance pertaineth to the King's court ; and 
 also that the judgments given in the same court be im- 
 peached 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 penalties of outlawry, forfeiture of lands and 
 goods, and imprisonment 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 cognisance 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 
 
 1 25 p:d\v. TIT. St. 4. [Rev. Stat. i. 177.] 
 
42 2 The Reformation in England. [Ch. 
 
 King's justices, to answer in their proper persons for the 
 
 contempt so committed.^ 
 These Statutes, however, were of little avail. The law still 
 
 d^fi^d^^ 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.^ 
 Former pro- In 1 389, there was an expectation that the Pope was 
 enacted wkh ^.bout to attempt to enforce his claims, by excommu- 
 specialpro- nicating those who rejected them. The Parliament at 
 against once passed a highly penal statute, which, besides re- 
 excommu- enactingf in the most emphatic terms the former prohi- 
 
 nications ° ^ ^ 
 
 from Rome, bitions of Papal aggressions, declared that ' if any man 
 
 st^ 2 ^c ■? bring or send within the realm, or the King's power any 
 
 1389- summons, sentences, or excommunications against any 
 
 person of what condition that he be,' because of his assent 
 
 to or execution of the statute of Provisors, he should incur 
 
 pain of life and member, 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 redress and 
 
 correction be made.^ 
 
 Boniface IX. Matters were shortly afterwards brought to a crisis by 
 
 m"tfersto Boniface IX,, who, after declaring the statutes enacted 
 
 a crisis. by the English Parliament null and void, granted to an 
 
 ^ Italian Cardinal a prebendal stall at Wells, to which the 
 
 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 
 
 support the Crown, were forthwith. excommunicated by 
 
 the Pope. 
 
 1 Revised Statutes, 27 Edw. III. stat. i., [i. 193]. 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. 
 
 2 38 Edw. III., St. 2 ; 3 Ric. II., c. 3 ; 7 Ric. II., c. 12 ; 12 Ric. II., 
 c. 15. 
 
 ' 13 Ric. II., St. 2. 
 
XI.] The Reformation in England. 423 
 
 The Commons were now roused to the highest pitch of Petition of 
 indignation. They drew up, in the form of a petition to mons. They 
 the King, a declaration of the circumstances which had declare they 
 
 ° will stand 
 
 occurred, and affirmed that ' the said things so attempted, by the King 
 be clearly against the King's crown and his regalty, used ^°g ^"^ 
 and approved of the time of all his progenitors, wherefore 
 they and all the liege Commons of the said realm will 
 stand with our said lord the King, and his crown, and his 
 regalty, in the cases aforesaid, and in all other cases 
 attempted, in all points to live and to die.' After this The Lords 
 emphatic assertion of their own opinion, they prayed the tempomlTre 
 King, ^ and required him by way of justice,' to examine interrogated 
 severally all the Lords Spiritual and Temporal in the Par- to the same 
 liament how they thought and how they would stand. ^^^^^* 
 The lay Lords answered directly, and the Spiritual Lords 
 indirectly, to the same effect as the Commons.^ Where- 
 upon the petition and the separate declarations of the 
 three estates of Parliament were incorporated in the great 
 Statute of Praemunire. It was enacted, that 'if any man Statute of 
 purchase or pursue ... in the court of Rome, or elsewhere, ^^^^^{^ 
 such translations, processes, and sentences of excommuni- c. 5- 
 cations, bulls, instruments, or any other things whatsoever, 
 which touch the King, against him, his crown, and his 
 regalty, or his realm, as . . . aforesaid, and they which bring 
 them within the realm, or them receive, or make thereof 
 notification or other execution whatsoever within the realm 
 or without, that they, their notaries, procurators, maintainers, 
 abettors, fautors, and counsellors, should be put out of the 
 King's protection, and their lands and tenements, goods 
 and chattels, forfeit to our lord the King ; and that they be 
 attached by their bodies, if they might be found, and 
 brought before the King and his council, there to answer to 
 the cases aforesaid, or that process.be made against them 
 hy praemunire facias m manner as it is ordained in other 
 statutes of proyisors against those which do sue in the 
 
 Rot. Pari., iii. 304. 
 
424 
 
 The Reformation in England, 
 
 [Ch. 
 
 Boniface 
 
 yields. 
 
 Rise of the 
 Lollards. 
 
 John 
 
 Wycliflfe, 
 
 1360; 
 
 and his 
 •poor 
 priests. ' 
 
 The Bible 
 translated 
 and disse- 
 
 court of another in derogation of the regalty of our lord 
 the King.'i 
 
 The firm and resolute attitude assumed by the 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 per- 
 haps have carried the nation further. The liberties of the 
 crown had been asserted successfully. The analogous 
 liberties of the church might have followed ; 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 arrested in its course by 
 another movement, which turned the current of suspicion, 
 and frightened back the nation to conservatism. While 
 the crown and the parliament had been engaged with the 
 pope, the undulations of the dispute had penetrated down 
 among the body of the people, and an agitation had been 
 commenced of an analogous kind against the spiritual 
 authorities at home. . . . This form of discontent found its 
 exponent in John Wycliffe, the great forerunner of the 
 Reformation, whose austere figure stands out above 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 
 m.ost simple life ; austere in appearance, with bare feet and 
 russet mantle. . . . Bythe 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 over the country as an army of mis- 
 sionaries to preach the 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, 
 
 ' 16 Ric. II., c. 5 ; Stat, of the Realm, ii. 85 [Rev. St. i. 263]. 
 
XI.] The Reformation in England, 425 
 
 leaving here and there, as they travelled, their costly minated 
 treasures, as shining seed-points of light ; and they refused people, 
 to recognise 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, Wycliffe 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.' ^ 
 
 But the * poor priests ' had other doctrines besides those Revolution- 
 which they found in the Bible. The tenets of W^rcliffe SociaUstic 
 himself were not free from revolutionary tendencies, H"^^"^^^! , 
 
 111-1111 of Wycliffe s 
 
 though probably mtended by him, so far as regarded followers. 
 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 They are 
 himself had any hand in exciting the insurrection of the ISTthe^lnsur- 
 
 Villeins in 1381, the complicity of many of his followers, ^5^^i^M,°f 
 •the Lollards, is undoubted. John Balle, the fanatical in 1381. 
 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.^ 
 The insurrection was in fact a great blow to Wycliffe and Conserva- 
 the Lollards. Now that it was seen that they had become in^cJnse-^"" 
 political revolutionists as well as religious reformers, a quence. 
 reaction set in. In the Parliament which met in May, 
 1382, Archbishop Courtenay procured a statute to be irre- 
 gularly passed, without the assent of the Commons, order- 
 ing that commissions should issue out of the Chancery 
 » 
 
 * Froude, Hist. Eng., ii. 12-15. 
 
 2 Fasciculi Zizaniorum Magistri Johannis Wyclif, edited by Canon Shirley 
 (Rolls Series, p. 273). [Hardwick, Ch. Hist., Middle A ^e, p. 412, says of 
 John Balle that Knyghton calls him a * precursor ' of Wycliffe, but never inti- 
 mates that the two were aciing in concert. Robertson, Hist. Chr. Church, 
 viii. p. 280, referring to the alleged confession, says, ' in truth, this connexion 
 between Balle and Wycliffe was imaginary.' — Ed.] 
 
426 The Reformation in England, [Ch. 
 
 directing the sheriffs to arrest all persons certified by the 
 Bishops to be preachers of heresy, and their abettors, and 
 to keep them in prison * until they will justify themselves 
 according to reason and the law of Holy Church.' ^ Pro- 
 secutions followed ; but Wycliffe petitioned against the 
 measure, and in the succeeding Parliament the Commons 
 demanded and obtained its repeal, on the ground that 
 their assent had never been given.^ 
 
 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 
 
 Henry IV. molested. It was the policy of Henry IV. to gain the 
 
 PreiaS ^^^ support of the Prelates by sustaining them against their 
 
 new adversaries, who, moreover, as disturbers of order, 
 
 were equally obnoxious to the secular power.^ With this 
 
 object was passed, in the second year of his reign, at the 
 
 instigation of Archbishop Arundel, the celebrated statute 
 
 [Pretended] Dc Haeretico Comburendo. The preamble recites that 
 
 ^neHaeretico ' ^ivers false and perverse people, of a certain new sect, of 
 
 Combur- the Faith, of the Sacraments of the Church, and the autho- 
 
 2'^Henry IV. rity of the same, damnably thinking, and against the law 
 
 ^- ^5- of God and of the Church usurping the office of preaching, 
 
 do perversely and maliciously in divers places within the 
 
 said realm, under colour of pretended holiness, preach and 
 
 teach in these days, openly and privily, divers new doc- 
 
 1 5 Ric. II., St. 2, c. 5, Stat, of the Realm, ii. 26, 
 
 2 In this statute, or rather ordinance, the assent of Lords and Commons is 
 not expressed (' it is ordained and assented in the present Parliament ')• In the 
 next Parliament, which met in October of the same year, 1382, the Commons, 
 reciting this statute, declare it was never assented to or granted by them, but 
 that what had been proposed in this matter was without their assent, and pray 
 that the statute may be annulled ; for it was never their intent, they said, to be 
 judged by, or to bind themselves or their descendants to, the bishops more 
 than their ancestors had been bound in times past. The King returned an 
 answer agreeing to their petition. (Rot. Pari., 5 Ric. II., iii. 141 ; Hallam, 
 Mid. Ages, iii. 89. ) Nevertheless the pretended statute remained on the statute 
 book, and was not formally repealed until the passing of the Stat. Law Revision 
 Act, 1863. 
 
 3 At the same time that Henry IV. was supporting the National Church 
 against domestic adversaries, he was careful to maintain the policy of resist- 
 ance to the aggressions of the Pope. See statutes 2 Hen. IV. c. 3 ; 2 Hen. IV. 
 c. 4 ; 5 Hen. IV. c. ii ; and 9 Hen. IV. c. 9. 
 
XL] The Refo7'matioii in England, i\2j 
 
 trines, and wicked, heretical, and erroneous opinions, 
 contrary to the same faith and blessed determinations of 
 Holy Church. And of such sect and wicked doctrine and 
 opinions they make unlawful conventicles and confede- 
 racies ; they hold and exercise schools ; they make and 
 write books ; they do wickedly instruct and inform people ; 
 and, as much as they may, incite and stir them to sedition 
 and insurrection . . . the diocesans and their jurisdictions 
 spiritual, and the Keys of the Church with the censures of 
 the same, they do utterly contemn and despise; and so 
 their wicked preachings and doctrines 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 Jiave_,power_Jto arrest and imprison 
 persons defamed or vehemently suspected of such offences, 
 until they should make canonical purgation ; and, if con- 
 victed, to punish them with fine and imprisonTTrcnt: — Arrd— 
 if any person so convicted should refuse to abjure such 
 preachings, doctrines, opinions, schools, and misinforma- 
 tions, 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 sentence, should receive 
 the persons so condemned into custody, * and them before 
 the people, in an high place, do to be burnt, that such 
 punishment may strike in fear to the minds of others.' ^ 
 
 There seems little doubt that the Commons were not The Com- 
 assenting parties to this burning statute. Throughout the tion the 
 whole of Henry IV.'s reig-n they manifested a very hostile Crown for a 
 
 •f Q -f •> seculansa- 
 
 spirit to the clergy ; and on two occasions, in 1404 and again tion of 
 in i4io,they proposed that the temporalities of the Church pr^p^gr^ty 
 should be confiscated to the use of the State : but the 
 
 1 2 Hen. IV., cap. 15, a.d. 1401 ; Stat, of the Realm, ii. 125. The writ 
 De Haerctico Comburendo, [with] * all process and proceedings thereupon, and 
 all punishment by death in pursuance of any ecclesiastical censures,' [was] 
 finally abolished by statute, 29 & 30 Car. II., c. 9. 
 
428 
 
 The Reformation in England, 
 
 [Ch. 
 
 Insurrection 
 
 of the 
 
 Lollards 
 
 under Sir 
 
 John 
 
 Oldcastle. 
 
 1412. 
 
 Lollardry 
 repressed 
 but not ex- 
 tinguished. 
 
 King refused to countenance the scheme.^ The abortive 
 insurrection of the Lollards at the commencement of 
 Henry V.'s reign, under the leadership of Sir John Old- 
 castle, had the effect of adding to the penal laws already 
 in existence 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 confiscate the possessions of the church, to secularise 
 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 here in the realm of England, by 
 divers of the King's liege people, as well by them which 
 were of the sect of heresy commonly called Lollardry, as 
 by other of their confederacy, excitation, and abetment, 
 now of late were 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 land,' 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 forfeit lands, goods and chattels, as in 
 cases of felony.^ 
 
 Although repressed and discredited, Lollardry was by 
 no means extinguished. Henry VI., in 143 1, writes of 
 the Lollards ' as God knoweth, never would they be subject 
 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.' ^ The 
 
 ^ Walsingham, 379. From the superfluous revenues of the Church, the Com- 
 mons asserted that the King might maintain 15 earls, 1500 knights, and 6200 
 esquires ; and also support icx) hospitals for the relief of the poor. 
 
 2 2 Hen. v., c. 7. 1415. 
 
 ' Archaeologia, vol. xxiii, p. 339 seq. 
 
XL] The Reformation in England. 429 
 
 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/ but from the beginning of the i6th century the it revives at 
 records of the Bishops' courts are filled with accounts oi'^^^^^llf.^l^ 
 prosecutions for heresy. In the first years of Henry VI 1 1, 
 several persons were burnt for this crime, while others only 
 escaped by abjuring their errors. About the same time The ' Asso- 
 the mantle of Wycliffe's ' poor priests ' was taken up by a cSan^ 
 society in London calling itself 'The Association of Christian Brothers.' 
 Brothers.' ' 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 provided with 
 moderate funds, which were regularly audited : and its paid 
 agents went up and down the country carrying Testaments 
 and tracts with them, and enrolling in the order all per- 
 sons who dared to risk their lives in such a cause.' ^ Even Even the 
 those persons who felt no sympathy with the doctrines of disgusted ^^^ 
 LoUardry, had been long disgusted with the vices and with the 
 
 /. 1 T^ 1 r> .11- 1 . 11 exactions of 
 
 exactions of the Papal See, with the inordinate wealth, the Papacy 
 privileges, and encroaching temper of the clergy, and the ^^^ *^^ 
 abuses of the Ecclesiastical courts. the Eccie- 
 
 siastical 
 
 ' system. 
 
 * [One Bishop, the single defender of the clergy of England against the 
 'over much blaming of the Lollards,' Reginald Pecock, shared the fate of 
 some other apologists by being accused of favouring the heresies which he had 
 set himself to confute. Hard wick {Church History. Middle Age. 1861, 
 p. 424) speaks of Pecock as the ' only writer who applied himself in earnest 
 to convert the Lollards by the use of candid arguments,' but says that * his 
 moderation was almost fatal to him.' Robertson {Hist. Chr. Church, 
 viii. 349-54) says that * in some respects Pecock may be regarded as stand- 
 ing midway between the doctrines of Rome and those of the English Refor- 
 mation.' He deserves to be held in honour at least on this one point brought 
 out by Robertson, that he was ' an advocate of toleration in an age when in- 
 tolerance was regarded as a duty to the truth.' With regard to his con- 
 demnation, it may be noted that he had exposed the Donation of Constantine 
 by a clear historical argument, independently of Valla. The statement {ap. 
 Hardwick, loc. cit.) quoted from * an old chronicler,' by Leland, ' male sensit 
 de Eucharistia,' may indicate no more than doubts as to the Definitions of the 
 4th Lateran Council. Whether Pecock was deprived, or whether he resigned 
 the see of Chichester, is left uncertain by Robertson, loc. cit.^ but ' episcopatu 
 Cicestrensi privatus' is in Three \^th Cent. Chron. (Camd. Soc), 168. — Ed.] 
 
 2 Froude, Hist. Eng., ii. p. 26. 
 
430 
 
 The Reformation in England, 
 
 [Ch. 
 
 Benefit of 
 clergy. 
 
 Dr. Stand- 
 ish and Con 
 vocation. 
 [Cf. App, 
 J).] 
 
 Case of 
 Richard 
 Hunne. 
 
 One of the most mischievous of clerical privileges was 
 the immunity of all tonsured persons from civil punish- 
 ment for crimes. This had been partially restrained 
 under Henry VI., by requiring that clerks arrested on any 
 criminal charge, instead of being instantly claimed by the 
 Bishop, should plead their privilege at the time of arraign- 
 ment, or after conviction. Under Henry VH. all clerks 
 convicted of felony were ordered to be burned in the hand : 
 and in 1 5 1 3, the * benefit of clergy ' was entirely taken 
 away from murderers and felons.^ The immunity was, 
 however, still enjoyed by priests, deacons, and subdeacons. 
 In 15 1 5, Dr. Standish, having denied the right of__clerksL_tD 
 be exempt from the jurisdiction of the King's courts, was 
 attacked by Convocation ; whereupon Parliame nt petitioned 
 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 clerk, in a Civil 
 court, for illegal extortion, was, by way of retaliation, 
 prosecuted in the Bishop's court for heresy, and having 
 been committed to the Bishop's prison, was found hanged 
 ill his chamber. The Bishop's chancellor and sumner 
 were indicted for the murder on such vehement pre- 
 sumption, that, a conviction being almost certain, the 
 Bishops appealed to the King to defer the trial, declaring 
 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 enquire 
 of the Court of Rome whether submission to Civil courts 
 was consistent with the laws of God and the liberties of 
 Holy Church. In reply Henry declared that * By the 
 permission 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 
 
 ^ 4 Hen. VIII., sess. 2, c. 2. 
 
XL] The Reformation in England. 431 
 
 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.' ^ 
 
 Such was the state of popular feelinsf in EnHand when Luther at 
 
 Wittenberg 
 
 Martin Luther nailed his theses to the church door of 1517. 
 Wittenberg, and set in motion that mighty religious revolu- 
 tion, which, while it has to some extent affected the destinies 
 of all Western nations, has in an especial manner influenced 
 the religious and political development of the English 
 people.^ 
 
 Inclined as a man of Henry's intellis^ence and force of Henry pre- 
 
 ' ° disposed to 
 
 character must have been to reform the abuses of the curb Eccle- 
 Ecclesiastical system and curb the excesses of clerical abuseT^but 
 power, he was altogether opposed to Doctrinal innovations, opposed to 
 In defence of Orthodoxy he even condescended to a polemic changes. 
 contest with Luther, and for the treatise, Assertio Septem His book 
 Sacramentorum adversus Martimcm LutJuriun, received 'Luther trains 
 from Pope Leo X. the title of ' Defender of the Faith.' But him the title 
 among the people the writings of the * arch-heretic,' and of ^f t^g Faith, 
 other foreign reformers, were sedulously circulated by the ^521. 
 * Christian Brothers,' until at length, under Edward VI. and Jhr^wr^iffngl 
 Elizabeth, English Lollardism, stimulated and developed by of Luther 
 the influence of Germanic Protestantism, brought about the foreign Re- 
 Doctrinal, as Henry VIII. had brought about the Political ^^"'jj'^"" 
 and Legal, reformation of the National Church. Some Lollardism. 
 reform of the Ecclesiastical system, and even of the doctrines Some reform 
 of the Church, must certainly have been carried out at no siastical 
 prreat distance of time, even had no quarrel arisen between system was 
 
 ^ mevitable. 
 
 Henry VHI. and the Papacy.^ The crisis was precipitated precipitated 
 by the famous Divorce suit against Queen Catherine. It is by the 
 
 Pope's 
 
 unnecessary here to discuss the merits of the case, or to action in the 
 dwell upon the vacillation and duplicity of Pope Clement J^pg'^ 
 
 ^ -^ Divorce suit 
 
 Vn., 'the assurances he gave the King, and the arts against 
 
 Queen 
 Catherine. 
 
 1 Burnet, Hist. Reformation, i. part i. 
 
 2 See Macaulay, Hist. Eng., i. [49]. 
 
 3 [The General Councils of the West in the Fifteenth Century would alone 
 suffice to prove this. Their uniform cry was for * Reform of the Church in 
 Head and Members.' — Ed.] 
 
432 
 
 The Reformation in England. 
 
 [Ch. 
 
 Progress of 
 events. 
 
 The Re- 
 formation 
 Parliament^ 
 1529-36- 
 
 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 without 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.' ^ 
 
 More than five years elapsed between Henry's first 
 application to the Pope, in 1527, 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 
 I^oleyn in November or January, 1532-3.^ On the 12th of 
 April, 1533, the marriage was publicly owned ; on the 23rd 
 of May, Archbishop Cranmer pronounced sentence of 
 divorce from Catherine ; and on the 7th September follow- 
 ing Anne became the mother of Elizabeth. On the 23rd of 
 March, 1534, the Pope, urged by the Cardinals to extreme 
 measures, pronounced a definite sentence in favour of 
 Catherine, and required the King under pain of excommu- 
 nication, 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 
 abolished the Papal supremacy in England, reformed the 
 constitution and administrative system of the Anglican 
 Church, and established the Royal supremacy, was the 
 work of one and the same Parliament. The ' Reformation 
 [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 session, 
 
 * Hallam, Const. Hist., i. 6i. 
 
 2 [Green, Hist, cf the English People^ 1878-80, ii. p. 157, gives ' the spring 
 of 1533,' as the date of Henry's marriage with Anne Boleyn.— Ed.] 
 
XL] The Reformation in England. 433 
 
 for fourteen years. It was continued by prorogations — 
 unusual in those days — from year to year, until it was 
 finally dissolved on the [4th 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 /. 
 presented to the King, in the name of the Commons of p^^f/joj^ ^f 
 England, containing what was in fact a formal ' Acte the Com- 
 
 1) ^- > -.^1 1 z. -1 J r • nions for a 
 
 d accusation, with a detailed summary 01 grievances, systematic 
 against the clergy generally and the Bishops in particular, scrutiny mto 
 This address disclosed the design of a systematic scrutiny cal abuses. 
 into all the abuses which had been imputed to the Anglican 
 Church. It is evident from the King's conduct and observa- 
 tions with regard to it, that he favoured, and had possibly 
 originated, the bold and novel enquiry. The ever-present 
 difficulty of reconciling the Papal pretensions with national 
 independence is also clearly brought out. It was the 
 divided allegiance of the Bishops which especially struck 
 Henry's mind, and which for national as well as personal 
 reasons he was so anxious to determine. He doubtless 
 saw that, in the impending struggle, the oaths sworn by the 
 prelates to the Pope would afford them but too ready an 
 excuse for taking part against him.^ 
 
 The address of the Commons was referred by the King it is referred 
 to the Bishops, with a request that they would immediately ^^^003 for 
 answer its charges. After some delay, the Bishops replied an answer. 
 in a lengthy document, which was handed by the King 
 
 ^ See 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 deliberate assemblies 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, appar- 
 ently, 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.' 
 [Amos, op. cit.'] pp. 3, 9. 
 
 C.H. F F 
 
434 
 
 The Reformation in England. 
 
 [Ch. 
 
 Henry's 
 criticism on 
 the Bishops' 
 answer. 
 
 Statutes in 
 restraint 
 
 of Probate 
 fees; 
 
 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 Commons 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 Jialf our 
 subjects ; yea, and scarce our subjects, 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 caused the two oaths to be read 
 in the Commons House.^ 
 
 Three statutes were passed in the first session in restraint 
 of the personal privileges and emoluments of the clergy. 
 
 (i) The fees, hitherto assessed at discretion, upon the 
 granting of probates and administration by the ecclesi- 
 astical courts were reduced to fixed and moderate pro- 
 portions. 
 
 This was a mode of ecclesiastical extortion which had 
 been long and bitterly resented. A statute of the 31st 
 year of Edward III. (st. i, 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 ^ 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 c(5mplained 
 of ; ^ but as the abuse still continued, ' nothing reformed 
 nor amended but greatly augmented and increased against 
 / 
 
 ' Hall, cited by A. Amos, p. 233. 
 
 2 The term Ordinary is generally synomymous with Bishop ; but it includes 
 every ecclesiastical judge who has the regular <?r^z«arv jurisdiction independent 
 of another. Co. Litt. 344. 
 
'XI.] The Reformation in England. 435 
 
 Tight and justice/ it was now effectually restrained by this 
 statute of Henry's reign.^ 
 
 (2) The mortuary fees, or ' corse presents,' of the of Mor- 
 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 demanded 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 fourpence up to ten shillings, 
 according to the value of the deceased person's property, 
 
 but with an entire exemption in the case of married 
 women, children, persons not keeping house, and wayfaring 
 men.*^ 
 
 (3) Pluralities, non-residence, farming and trading byofPlurali- 
 the clergy were forbidden. It was enacted that no clergy- [eTidence 
 man should thenceforth take any land to farm beyond and clerical 
 what was absolutely necessary for the support of his own ^ "^^' 
 household ; or should buy merchandise to sell again ; or 
 
 keep tanneries or brewhouses,^ or otherwise directly or 
 indirectly trade for gain. Pluralities were not to be per- 
 mitted with respect to benefices above the yearly value 
 of £Z ; and residence was made obligatory. Papal and ^ 
 Episcopal dispensations [for] pluralities and non-residence * 
 were declared illegal, and persons procuring them rendered 
 liable to heavy penalities : 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 
 B achelo r of Divinity or Law. The Crown thus acquired 
 
 1 21 Hen. VIII. c. 5. 
 
 2 21 Hen. VIII. c. 6. 
 
 ^ 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. 
 
 F F 2 
 
436 The Reformation in England. [Ciu 
 
 a powerful means — hitherto enjoyed by the Pope — of 
 influencing the lower House of Convocation. 
 Session 11, In this Session no statute directly aimed at either Pope 
 1530-1- 01- clergy was passed. But in an Act for the punishment 
 (by whipping, pillory, and loss of ears) of beggars and 
 Proctors and vagabonds, were significantly included * all Proctors and 
 punisS as P^'^^ouers going about the country without sufficient 
 vagabonds, authority.' ^ Proctors were officers of the Ecclesiastical 
 courts analogous to attorneys of the Civil courts ; Par- 
 doners were the itinerant vendors of Indulgences and relics 
 from the Court of Rome. 
 The clergy This was followed by the Act for the pardon of the 
 vmnire. clergy in the matter of the praeiminii^e 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 Praeimmire of 
 the i6th 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 authorising 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- 
 muni7'e and others, there was equally an equitable and 
 moral if not a legal defence to the charge.^ 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 
 
 ^ 22 Hen. VIII. c. 12. 
 
 2 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. 331. 
 
XI.] The Reformation in England, 437 
 
 clergy of the realm had been guilty Qi praemunire, because 
 by admitting the jurisdiction they had become, in the 
 language of the statute, his * fautors and abettors ; ' 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 hastily assembled, Pardoned on 
 and offered the King ;^ 100,000 in return for a full pardon. akl^Tsum 
 This offer the King refused to accept, unless in the pre- and admit- 
 amble of their petition he was acknowledged to be * the King's 
 protector and only supreme head of the church and clergy supremacy, 
 of England.' After much discussion, the King finally con- 
 sented to accept the acknowledgment of his supremacy . 
 with the qualifying words, ' so far as the law of Christ will 
 allow.' The Convocation of York adopted the same lan- 
 guage, and voted, for a like pardon, the sum of ;^ 18,840.^ 
 
 It is remakable in a reign when the power of the Crown 
 was at its highest, and when Parliament even delegated to 
 the King its legislative functions, thatLjthe King should 
 have admitted his Parliament to participate in the un- 
 doubted 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 Parlia- 
 mentary 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 a protection to 
 Wolsey. But a difficulty arose in the passage of the Bill The laity 
 of Pardon through the Lower House. The comprehensive Praemunire. 
 words of the Statute of Praemunire, applied not only to 
 the clergy but to the Privy Council, the Lords and Com- 
 mons, and indirectly to the whole nation, as having recog- 
 nised Wolsey in his capacity as Legate. The Commons, The Com- 
 therefore, fearing that the King might make the alleged on a pardon 
 J)raemunire an excuse for fleecing the laity as well as the to the laity, 
 clergy, boldly refused to pass the Bill for the pardon of the 
 
 1 22 Hen. VIII. c. 15 ; 23 Hen. VIII. c. 19. 
 
438 
 
 The Reformation in England. 
 
 [Ch. 
 
 which is 
 granted by 
 Act of Par- 
 liament. 
 
 latter, 'unless all men might be includ'ed, 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 sub- 
 missive 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 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 compel him to show his mercy. Where- 
 fore, 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 ad- 
 vised before he pardoned them, because he would not have 
 it look as if he was compelled to do so/ ^ However, a. 
 pardon to the laity was signed by the King, and embodied 
 in an Act of Parliament, by which his majesty *of his 
 mere notion, and of his benignity, 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 extraordinary reign, but it is_prpbably un- 
 paralleled in history. It was all the more preposterous from 
 the circumstance that, in effect^ the Lords and Commons 
 pardoned themselves.^ 
 
 * Hall, cited by A. Amos, Reformation Parliament, p. 6i. 
 
 - Amos. p. 62. The pardon to the clergy of the Province of Canterbury 
 was by Stat. 22 Hen. VHI. c. 15, the pardon of the laity by 22 Hen. VHI. 
 c. 16 ; the pardon of the clergy of York Province by 23 Hen. VHI. c. 19, passed 
 in the following session. For recent views of the Praemunire thus presumed 
 to have been incurred, and of the submission of the clergy to the King's. 
 
XI.] The Reformation in England. 439 
 
 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 Par- 
 liament, while the clergy were still under the terror of their 
 recent narrow escape from the penalties of a praemunire, 
 the attack upon the Papal and Ecclesiastical privileges was 
 vigorously but cautiously renewed. 
 
 (i) An Act was passed to restrain the citation of persons Session in. 
 out of the dioceses in which they were resident. The AcAo^"^ 
 preamble recites that great number of the King's sub- restrain the 
 
 ,, . 1 1 11- • citation of 
 
 jects as well men, wives, servants, as others, dwellmg m persons out 
 divers dioceses of England and Wales, have been at many ^}. ^^^ . 
 
 ° "^ diocese in 
 
 times called by citation and other processes compulsory to which they 
 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 ab- 
 solved 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 ex- 
 ceptions, 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 threepence.^ 
 
 (2) Shortly afterwards an Act was passed depriving Annates or 
 the Pope of the Annates, or first-fruits of benefices.^ It taken'^from 
 
 the Pope. 
 
 supremacy, see Dixon's Hist, of the Church of Eng. vol. i. (1529-37), p. 53 
 et seq., and the Quarterly Review^ Oct. 1879, Art. The Submission of the Clergy. 
 [Cf. also, on the whole period, Brewer's Henry VIII. ^ ed. by Gairdner. — Ed.] 
 
 1 23 Hen. Vin. c. 9. 
 
 2 [Annates arc stated by Hardwick, Church Hist., Middle Age, 1861, p. 346, 
 n. 3, to have been instituted by John XXH. (1316-34), who 'accumulated in 
 this way a prodigious treasure,' and of whom Giovanni Villani, Hist. Fiorent. 
 
440 The Reformation in England. [Ch. 
 
 recites that the Pope's holiness, his pre(5ecessors, 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 ; but such annates had risen, 
 grown, and increased by an uncharitable custom grounded 
 upon no just or good title, and 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 
 obedient, 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 conservation 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 there- 
 upon 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 pre- 
 
 1. ix. c. 58, is cited by Hardwick, u.s., as saying * Questi fu huomo molto 
 cupido di moneta e simoniaco, che ogni beneficio per moneta in sua corte si 
 vendea.' It is noticed by Greenwood, Cath. Petri, Supp. vol. 553, n. d, that 
 the Statutes of Ih-aeniunire and Provisors left untouched * those charges 
 which pressed most severely upon the beneficiaries, such as confirmations, 
 annates, first-fruits, &c.' In this matter, therefore, the Reformation Parlia- 
 ment of Henry VIII. was but carrying out to its logical completion the work 
 commenced under Edward III. and Richard II.— El).] 
 
XI.] The Refo7^mation in England, 441 
 
 sented 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 pre- 
 sented by the King and from whom the Pope should with- 
 hold 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 com- 
 pletely as if they had obtained their Bulls from Rome ; 
 and that any censures, excommunications, or interdicts 
 issued in consequence by the Pope should be utterly dis- 
 regarded. A remarkable proviso was added, evidently 
 with the object 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 composition 
 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.^ 
 
 The fourth session of Parliament begfan on the 4th of Session IV. 
 February. The King had been secretly married to Anne 
 Boleyn in the January, or November, preceding ; and 
 arrangements were in contemplation for the sentence of 
 Divorce from Catherine which Archbishop Cranmer pro- 
 nounced in the ensuing May. It was probably with the 
 view of quashing Queen Catherine's pending appeal to 
 Rome, and also, prospectively, any appeal which she might 
 make against the Archbishop's sentence, that an Act was Act for the 
 now passed forbidding, under the penalty of praemunire, ApSs to^ 
 all _a£ £eals from the Spiritu al Judges in England to the Rome. 
 Court o fthe Pontiff .^ In a curious arid lengthy preamble 
 
 ^ 23 Hen. VIII. c. 20. 
 
 2 [Hardwick, Hist. Christ. Ch.y Middle Age, 1861, 245, and n. 6, dealing with 
 
442 
 
 Tlie Reformation in England, 
 
 [Ch. 
 
 it is recited that By divers and sundry old authentic 
 histories and chronicles it is manifestly declared that this 
 realm of England is an Empirey 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 Temporalty, owe next to God a natural 
 and humble obedience. 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 annoy- 
 ance as well of the see of Rome as from the authority of 
 other foreign potentates,' ^ and reciting that since those 
 good statutes and ordinances, inconveniences and dangers 
 not provided for plainly therein had arisen and sprung up 
 by reason of appeals to Rome, in causes testamentary, 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 determi- 
 nation of the said causes, for so much as the said parties 
 appealing to the said court of Rome, most commonly da 
 the same for the delay of justice : it was therefore enacted 
 — That all causes testamentary, 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 
 
 the period 107 3-1 305, notes, as a symptom of the 'desire to elevate and enrich the 
 papacy,' the requirement now extended in all quarters, that appeals, instead 
 of being settled in the courts at home, should pass, almost indiscriminately to 
 the Roman, as the ultimate tribunal of the West.' He also remarks, n. 6> 
 «.j., that in England there was always a peculiar jealousy on the subject of 
 appeals, going back, as he shews, op. cit., p. 16, n. i, to the case of Wilfrid, 
 and the attitude towards Rome taken by Ecgfrith and Aldfrith of Northumbria, 
 the latter, while respecting the persons of the Papal Legates, expressly stating 
 ' se . . . assensum legationi omnino abnuere, quod esset contra rationem homini 
 jam bis a toto Anglorum concilio damnato propter quselibet Apostolica scripta 
 communicare,' Vit. S. Wilf. c. 48-52, cited w.j.— Ed.] 
 ^ Siipruy pp. 419-26. 
 
XI.] The Reformation in England, 443 
 
 require, any inhibitions or excommunications, or processes 
 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 Convocation.^ 
 
 Before the meeting of Parliament for its fifth session. Session V, 
 on the 15th January, 1533-4, Archbishop Cranmer had ^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. 
 
 (i) The first important Act passed was one for making Act for the 
 the King's assent requisite to the validity of Ecclesiastical ^Iftke clergy. 
 canonsTand for~the more general prohibition of appeals to 
 Rome. The clergy in Convocation had already been in- 
 duced 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 submission 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 con- 
 trary to its provisions. Appeals to Rome, which had been 
 already prohibited 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 24 Hen. VIII. c. 12. 
 
 2 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 super- 
 seded by the Judicial Committee of the Privy Council under the provisions of 
 
444 The Reformatio7i in England, [Ch. 
 
 Archbishops/ (2) The statute of 1 531, by which the 'payment of An- 
 
 and bishops \ ■, -n, iti • iri-i, i 
 
 to be Inates to the Pope had been contingently forbidden, and 
 
 b°T/" k^'^ ' 1'^^^^^ ^^^ since been ratified by the King's letters patent, 
 cotige (CHire. was re-enacted, with additional clauses providing a mode 
 of nominating Archbishops and Bishops by coitge d'clire^ 
 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 was to 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 nomi- 
 nated 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, 
 
 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 ap- 
 peals 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. See also the 
 Public Worship Regulation Act, 1874, 37 & 38 Vict. c. 85. [It does not 
 seem clear what place, if any, is reserved under this scheme for the Court of 
 the Archbishop of Canterbury, recently revived in the case of Read v. Bishop 
 cf Lincoln, still pending, or whether appeal therefrom would lie to the 
 Upper House of the Convocation of Canterbury, or to the Court of Appeal 
 created by the Judicature Act, 1873, or, possibly, to the Queen in Council, 
 i.e., to the Judicial Committee of the Privy Council. The result must, in any 
 of the conceivable hypotheses, it would seem, be something rather novel in the 
 way of appeals, and not very unlike an appeal from the Archbishop of Canter- 
 bury in his sole person, to the same as a member or assessor of the Court of 
 Appeal. Cf. post, App. —Ed. ] 
 
XL] The Reformation in England, 445 
 
 and should receive the profits spiritual and temporal be- 
 longing to his bishopric.^ 
 
 (3) This statute was immediately succeeded by another Payment of 
 lopping off a multitude of petty payments which the Pope an/ oth&!^^ 
 had been wont to exact. It is declared to be founded on Papal 
 
 r ^ r^ ^ - ' 1 T;r • i CXaCtlOnS 
 
 the petition of the Commons complaining to the King that forbidden. 
 his subjects were greatly decayed and impoverished 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 was not only to be blamed for his usurpation of the 
 revenues, but for his abusing and beguiling the King's sub- 
 jects, — * pretendyng and perswadyng to theym that he hath 
 full power to dispence with all humayne lawes uses and 
 customes of all realmes in all causes which be called 
 spirituall, . . . in great derogacion of your imperiall crowne 
 and auctorytie royall. . . . where this your Graces realme, 
 recognysing noo superior under God but only your Grace, 
 hath byn and ys free frome subjeccion to any mannes lawes 
 but only to such as have bene . . . made . . . within this 
 realme for the welthe of the same, or to suche other as by 
 sujfferance of your Grace and your progenytours the people 
 of this your realme have taken at theire free libertie by tlieire 
 owne consente to be used amonges theym, and have bounde 
 theym selfes by longe use and custome to the observance 
 of the same, not as to the observaunce of the lawes of any 
 foren prynce potentate or prelate, but as to the accustomed 
 and auncient lawes of this realme orygynally established as 
 lawes of the same by the seid sufferance consentes and 
 custome and none otherwyse.' It was therefore enacted 
 that Peter-pence and every other kind of payment made 
 to the Bishop of Rome, and ' to hys chambres which he 
 calleth Apostolyke,' 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 
 
 ^ 25 Hen. VIII. c 20, * An Act restraining the payment of Annates, &c.' 
 
44^ The Reformation in England, [Ch. 
 
 of Canterbury; that children born of marriages solemn- 
 ised by virtue of an archbishop's licence should be 
 legitimate ; and that the penalties of praemunire should 
 I be incurred by any one suing to Rome for any licences, 
 / bulls, or instruments forbidden by the Act. It was how- 
 l ever 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 concern- 
 ing 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 to annul the whole or any part 
 of the Act at his pleasure.^ 
 Henry's first (4) The first of Henry's statutes for the settlement of 
 cession Act. ^^^ Royal Succession was also passed in this session. 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 prohibited degrees of 
 marriage, the tenth on the list being the marriage of a 
 brother with a brother's wid ow ; an entail of the crown ; ^ 
 certain new treasons and misprisions of treason ; and an 
 Oaths im- oath to observe and maintain the Act, to be taken by all 
 posed by the subjects of full age under the penalty, on refusal, of being 
 adjudged guilty of misprision of treason. The terms of the 
 oath prescribed in the Act were, that the deponents would 
 * truly, firmly and constantly, without fraud or guile, ob- 
 serve, fulfil, maintain, defend and keep, to their cunning. 
 
 ^ 25 Hen. Vni. c, 21, * An Act for the exoneration from exactions paid to 
 the See of Rome.' [Rev. Stat. i. 423 seq. — Ed.] 
 
 ^ Supra, p. 225. [Cf. Bailey's Succession to tht English Crown, where the 
 history and validity of the various settlements made by Henry VIH. are care- 
 fully discussed. — Ed.] 
 
XL] The Reformation in England, 447 
 
 wit, and uttermost of their powers, the whole effects and 
 contents of this present Act' ^ 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 acknowledg- 
 ment 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 poten- 
 tate ; ' 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 be- 
 ginning of this present Parliament in confirmation or for 
 due execution of the same.' Sir Thomas More and Bishop Sir Thomas 
 Fisher, when called upon to take this amplified oath, which gishop^ 
 had no Legislative authority, refused, and were in conse- Fisher. 
 quence illegally committed to prison, where they remained 
 a long time without trial. In the next session of Parlia- 
 ment the legal difficulty was surmounted by a special Act, 
 by which, after reciting the oath prescribed in the Succes- 
 sion 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, expounded, reported, 
 accepted and adjudged the very oath that the King's 
 Highness, the Lords spiritual and temporal, and the Com- 
 mons of this present Parliament meant and intended that 
 every subject of this realm should be bound to take and 
 accept.' 2 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 
 
 » 25 Hen. VIII. c. 22. 
 3 26 Hen, VIIL c. 2. 
 
44^ The Reformation in England. [Ch. 
 
 I the preamble of the oath denying the Pope's right of dis- 
 pensation — were shortly after, while close prisoners in the 
 Tower, and without being heard in their defence, at- 
 tainted by Acts of Parliament of misprision of treason, and 
 executed.^ 
 Session VI. Shortly after the close of the preceding session, the news 
 1534- arrived in England of the Pope's adjudication annulling 
 Royal Pro- Cranmer's sentence of divorce. This was followed by a 
 against the Royal Proclamation ordering 'all manner of prayers, oracions, 
 ^?^^' ,... rubrics, canons, or mass-books, and all other books in 
 
 9 June, 1534. * ' ' 
 
 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 in his con- 
 tumely and reproach) remembered, but perpetually sup- 
 pressed and obscured.' ^ Parliament met after the proro- 
 gation, on the 3rd November, 1534, and sat till the i8th 
 Ad of of the following month, (i) Its first Act was the famous 
 
 uc^aT'^^' Act of Supremacy. The King had already been recognised 
 by Convocation — under the terror of the Praemunire — 
 '' quantum per CJiristi 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 injperial 
 Crown of this realm, as well the title and style thereof, as 
 ^11 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 
 
 ^ See Amos, 'Statutes of the Reformation Parliament,' pp. 31-36, 46-52. 
 
 ' [The force of Royal Proclamations in this reign, as Dixon remarks, Hisi. 
 Ch. of England^ ii. p. 482, was somewhat diminished, no doubt, by their fre- 
 quency and violence, as well as by the constant antinomies which they 
 presented. — Ed.] 
 
XI.] The Reformation in England. 449 
 
 authority or jurisdiction, ought to be reformed or corrected.^ 
 (2) The second Act of this session was that to which Oath to 
 reference has already been made, as having been passed to guccessfon^^ 
 justify retrospectively the imprisonment of Sir Thomas 
 More and Bishop Fisher, for not taking an oath, which it 
 was now declared ^ 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 and tenths of the First-fruits 
 annual income of all ecclesiastical benefices, — the payment fhrcrown^ 
 of which to the Pope had been stigmatised, in the third 
 session of this Parliament, as having arisen by an uncharit- 
 able 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.' ^ 
 
 The destruction of the Papal power, emoluments, and Session vii. 
 influence in England, and the reduction of the national 7?3?^-6^ 
 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 Dissolution 
 the yearly value of 200/. were, to the number of 376, sup- g^^^f ^ 
 pressed by Act of Parliament, and all their property, real monasteries, 
 and personal, given to the King, his heirs and assigns, ' to 
 do and use therewith his or their own wills to the pleasure 
 
 ^ 26 Hen. VIII. c. i, endorsed on the original * The King's Grace to be 
 authorised Supreme Head.' [Dixon argues {Hist. Ch. of England^ ii. p. 182) 
 that * no new authority accrued ' in England or Ireland from this title, but 
 that it was simply 'declaratory.' It was acknowledged by the Lincolnshire 
 insurgents, and denied, as regards Cura animarum, by the Yorkshire insurgents. 
 But it was open to grave misconception, and appears to have been misunder- 
 stood on different sides, by Cardinal Pole, and by the Religious Houses them- 
 selves, so far as they may be credited with the authorship of the language of 
 their surrenders, which, however, may probably be credited rather to Henry's 
 Commissioners. See extract from Surrender of St. Andrew's, Northampton, 
 ap. Dixon, op. cit. ii. p. 19. — Ed. J 
 
 2 26 Hen. VIII. c. 2. 
 
 ^ 26 Hen. VIII. c. 3. In the following session of Parliament, 'for the entire 
 and hearty love that his grace bore to the prelates and other incumbents,' 
 they were excused from the tenths in the same year that they paid their first- 
 fruits. 27 Hen. VIII. c. 8. 
 
 CH. G G 
 
/ 
 
 e^ 
 
 450 ne Reformation in England. [Ch. 
 
 of Almighty God and the honour and profit of the realm/ ^ 
 To prepare the way for this measure, Thomas Cromwell, 
 the King's chief minister and adviser since the death of 
 Wolsey, had been appointed lord vicegerent of the King 
 in all matters ecclesiastical, and at his suggestion. Commis- 
 sioners were nominated to make a general visitation of the 
 jk. monasteries. The nature of their Report — which formed 
 
 ft the basis of the subsequent legislation — is accurately 
 J>^ described in the preamble of the Act. * Manifest sin,' it is 
 ^v^ 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 conducted 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 sup- 
 pression was alone immediately contemplated — are de- 
 scribed as vicious, while those whose incomes rose above 
 the hard and fast lines of 200/. a year are not only not 
 blamed but even praised. It looks very much as if the 
 small and remote houses, having no one to speak in their 
 favour, 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 favourable 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 
 
 1 27 Hen. VIII. c. 28. 
 
 2 [It is difficult to resist feeling the general improbability of such a sharp line 
 of demarcation between the great houses, which had some one to speak for 
 them, and the lesser houses, which were without powerful friends. Moreover, 
 as Canon Dixon shows, Hist. Ch. of Eng. i. 362, while the Act which gave 
 the smaller monasteries to the King condemned them as the * abodes of mani- 
 fest sin,' the visitors had censured some of the greater houses, while some of the 
 small ones bore a good report. The distinction drawn in the Act is probably 
 well describecTby Dixon as * arbitrary,' and as arising from an imitation of the 
 former suppression by Wolsey — Ed.] 
 
XI.] The Reformation in England, 45^ 
 
 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 respect- 
 able writers of preceding ages.' ^ Archbishop 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 reprimanded by the same Arch- 
 bishop for the alleged scandalous 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 i 
 order to endow a new college at Oxford, which, after his \ 
 fall, was more completely established under the name of I 
 Christ Church.2 Henry VIII. may have been chiefly 
 actuated by greed 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 
 disapproved. This is evidenced by the insurrections inThe'Pil- 
 Lincolnshire and Somersetshire, and the great Northern Gr^ef'^ ° 
 rebellion, styled by the insurgents the ' Pilgrimage of 1 536-7- 
 Grace,' which broke out on the suppression of the smaller 
 monasteries, and was imputed to the 'solicitation and 
 traitorous conspiracy of the monks and canons.' «y 
 
 _^ — _ . _ ^u^ 
 
 ^ Hallam, Const. Hist. i. 70, 71. 
 2 Ibid. 
 
 G G 2 
 
452 The Reformation in England. [Ch. 
 
 The larger jj^g rebellion having been ruthlessly stamped out,^ 
 dissolved. Henry ventured, four years later, to dissolve the larger 
 1540. monasteries also, without encountering any open resistance 
 
 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 
 *V under duress. It only remained for Parliament 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 hypocritically reciting 
 that the abbots, priors, abbesses, and prioresses had made 
 surrender, * of their own free and voluntary minds, good- 
 wills, and assents, without constraint, co-action, or compul- 
 sion,' 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, sup- 
 pressed, surrendered, or had or might by any other means 
 come into the hands of the King.' ^ 
 Was the However harsh and unjust may have been the mode in 
 
 oahe^^^^°" which, to use a modern phrase, the ' disestablishment and 
 monasteries disendowment ' of the monasteries was carried out, it was 
 JUS 1 a e ^ measure politic in itself, supported by the precedents of 
 
 ^ On the 22nd of February, 1537, after the rebels in the north had dispersed, 
 the King wrote to the Duke of Norfolk : ' P'orasmuch as our banner is out- 
 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 dreadful execution to be done upoji a good 7iumber of the in- 
 habitants 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 ^ and 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. * 
 
 2 13 Hen. VIII. c. 13. 
 
XL] The Reformation in England. 453 
 
 the Knights Templars under Edward II. and of the Ah'en 
 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 excites * 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 Difference 
 respect to the justice and expediency of their confiscation. pH^te'and 
 *The law of hereditary succession/ continues Hallam, 'as corporate 
 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 enjoy- 
 ment, as it were, of futurity, that his perpetual ownership 
 could not be limited to the term of his own existence, 
 without what he would justly feel as a real deprivation of 
 property. Nor are the expectancies of children, or other 
 probable heirs, less real possessions, which it is a hardship, if 
 not an absolute 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 mortmain, 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 
 
 1 [The precedent of the Templars is scarcely a happy one. But there are, 
 no doubt, certain rather striking analogies in the two cases, both in regard to 
 the property to be obtained through the suppression, and in regard to the value 
 of the confessions extorted from the Templars and from the monks. — Ed.] 
 
454 
 
 The Reformation in England. 
 
 [Ch. 
 
 Distribution 
 of the 
 Church 
 property. 
 
 Its results. 
 
 his decease, so neither is any hardship sustained by others 
 unless their succession has been already designated or 
 rendered probable. Corporate property, therefore, 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 sedulously avoided, and 
 held justifiable only by the strongest motives of public 
 expediency, we cannot but admit the full right of the legisla- 
 ture 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 protestant could have found it easy 
 to censure his policy.' ^ 
 
 The vast wealth which accrued to the Crown by the 
 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 accomplish- 
 ment of which had been attained not without great hazard 
 and difiiculty. Some portion was expended on public 
 works and on the foundation of six new Bishoprics, but the 
 greater part was distributed among the nobles and gentry, 
 either as gifts or by sale at low prices. The results of this 
 policy were — (i) the new owners of monastic lands were 
 engaged by the strongest ties of private interest to oppose 
 the re-establishment of the Papal dominion 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 connection with this latter result, it is 
 
 * Const. Hist. i. 74, 75 ; and see Freeman, ' Disestablishment and Disen- 
 dowment, What are they ? ' For a Liberal Roman Catholic view, see ' The 
 Home and Foreign Review,' Nos. 7 and 8 (Jan. and Apr., 1864), Arts. 'The 
 Dissolution of the Monasteries ' and ' The Rise of the English Poor-law.' 
 
XL] The Reformation in England, 455 
 
 remarkable that the very next year after the passing of the 
 Act for the dissolution of the larger monasteries witnessed 
 the enactment of a goodly array of laws to facilitate the 
 transfer and enjoyment of Real property, a circumstance 
 which can scarcely be regarded as fortuitous.^ 
 
 Henry had now been completely victorious in his con- Doctrines 
 test with the Pope ; and the English clergy were so Anglican 
 humbled and intimidated that they dared not offer any Church 
 open resistance to the Royal will. So far as he had ad- by Henry, 
 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 religious 
 faith. With these Henry had no sympathy. Concurrently 
 with the series of political and legal changes which had 
 been effected in the Ecclesiastical system, severe measures 
 of repression had been taken against 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 Roman Church. By the * Statute of the Six Articles,' Statute of 
 
 the Six 
 
 as it is commonly called, it was affirmed : i. That in the Articles. 
 1539. 
 
 ^ A. Amos, Reformation Parliament, p. 313. Mr. Amos enumerates among 
 the Real Property legislation of this year the statutes — of wills ; of limitations ; 
 of fines ; for conveyance of tithes ; for lessees of tenants in tail ; for executions 
 upon lands ; for partitions ; for disseisins ; for grantees of reversions ; 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, c. 10.) tells us that the clergy, while impressing upon the laity 
 the duty of manumitting their villeins, ' had a scruple in conscience to im- 
 poverish 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.' 
 
 [Morgan, England under the Normans, p. 233, dealing with the extinction of 
 villeinage, notices the fact that the few villeins remaining in Sir Thomas Smith's 
 time were chiefly upon church lands, and calls this ' a fact rather creditable 
 than otherwise to the ecclesiastical order, considering in what way the tenants 
 of the lay lords had been brought out of bondage. ' — Ed. ] 
 
456 The Reformation in England. [Ch. 
 
 Eucharist there is really present the natufal body of Christ, 
 under the forms, but without the substance, of bread and 
 wine. 2. That communion 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, without 
 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 con- 
 temptuously 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 punish- 
 ment of felony.^ In some other respects Henry was in- 
 duced by Cromwell and Cranmer to favour Protestant 
 English doctrines. An English translation of the Bible was 
 ofThe^Bi'ble ^^"^^^^^^ to be set Up in each parish church for the use 
 1538- of the people ; ^ and in the * Institution ' and ' Necessary 
 
 'Institution' Doctrine and Erudition of a Christian man,* — books pub- 
 
 and * Erudi- ,. . , , ^ , . . , . . f . , 
 
 tion of a lished by Royal authority, — explanations were given which. 
 
 Christian u j|- ^j^^y ^^^ ^^^ absolutely proscribe most of the ancient 
 
 opinions, threw at best much doubt upon them, and gave 
 
 intimations which the people, now become attentive to 
 
 these questions, were acute enough to interpret." ^ 
 
 EDWARD Xhe actual Reformation in Religion was established in 
 
 1547-1553. the early part of the reign of Edward VI., mainly through 
 
 ^^j^. . the instrumentality of Cranmer and the Protector Somer- 
 
 Reformation set. The first Act of Edward's first Parliament (which 
 
 under 
 
 Edw. ^'I. 
 
 ^ 31 Hen. VIII. c. 14, 'An Act for Abolishing of Diversity of Opinion in 
 certain Articles concerning Christian Religion.' 
 
 2 In 1543, by an Act * for the advancement of true religion ' (34 Hen. VIII. 
 c. i) the liberty formerly granted of reading the Bible was abridged. 
 
 •■' Hallam, Const. Hist. i. 82. 
 
XI.] The Reformation in England, 457 
 
 met on the 4th of Nov. 1547), directed the sacrament o( /"/ 
 the altar to be administered in both kinds, as being agree- 
 able to primitive usage.^ In the following year was passed 
 the^Act Jor Uniform ity ..QL^Service and Administration of / 
 the Sacl^ments/ ordaining that the * order of divine wor- I / 
 ship/ contained in the Book of Common Prayer which had 
 been 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.^ I n the same session, the marriage of pries ts \ '*^* ^ 
 was dec1 ?\r^H lawful ;3 and shortly a fterwa rds images and r^ . 
 pictures of s aints in churrhes were ordered to be destroyed.* ^ ' 
 But these changes were not carried out without considera- Insurrec- 
 able opposition from a part of the nation. Insurrections j^-^|* 
 of a serious nature broke out in Devonshire, Norfolk, and 
 several other counties ; and religious persecution, " the Persecution, 
 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 MARY. 
 completely re-established, probably with the entire ap- Re-estab- 
 proval of a large portion, if not of a majority, of the Jj^hment of 
 nation, for whom the progress of the Reformation doctrines religion. 
 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 property in the 
 hands of subjects ; ^ and even the Bill for restoring to the 
 
 ^ 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.' 
 
 2 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. i) 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. 
 
 3 2 & 3 Edw. VI. c. 21. 
 
 -^ 3 & 4 Edw. VI. c. 10. 
 
 ^ I & 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 for the Establishment of all Spiritual and Ecclesiastical 
 
45^ The Reformation in England. [Ch. xi. 
 
 Church the first-fruits and impropriation's in the Queen's 
 The Marian hands was passed not without difficulty. The cruel and 
 Persecution, -^jde-spread persecution of the Protestants under Mary, far 
 The Re- from eradicating the Reformed faith, was instrumental in 
 piSIiroted promoting it. The abhorrence and disgust excited in the 
 Dyit. people against Mary and the Roman hierarchy were ex- 
 
 tended to the doctrines which they professed. * Many 
 persons,' remarks Hallam, ' are said to have become pro- 
 testants 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 
 protestantism by Elizabeth, when compared with the 
 seditions and discontent on that account under Edward.' ^ 
 
 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.' 
 
 ^ Const. Hist. i. 107. 
 
 [On the Reformation Settlement, and its bearing on the question of Estab- 
 lishment and the relations of Church and State in England, reference may be 
 made to the late Prof. Brewer's Church of England, ed. by L, T. Dibdin, 
 Barrister-at-Law, Lond. 1885. Much interesting information will also be 
 found in Narratives of the Reformation, 1532-56, Letters on the Suppression of 
 the Monasteries, the Diary of Henry Machyn, and in Rev. N. Pocock's 
 Troubles connected with the Prayer Book of 1549 (Camden Soc.). On Sir 
 Thomas More's attitude in the Religious questions of the day, cf. Eng. Hist. 
 Rev., 1889, Art. by Rev. W. H. Hutton, on Sir Thomas More's Religious 
 Writings, where More is represented as a 'humanist,' but one whose 'ideal of 
 humanism' was 'distinctly the product of Christian thought.' — Ed.] 
 
459 
 
 CHAPTER XII. 
 
 THE TUDOR PERIOD. 
 REIGN OF ELIZABETH. (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 enter- 
 prise, in every branch of material prosperity, the country 
 advanced with sure and rapid strides, while Literature was 
 adorned by the writings of Shakespeare, Spenser, Sidney, 
 Hooker, and Jewel. But of Constitutional progress, during 
 the greater part of Elizabeth's reign there is little to be 
 recorded. From her father she had inherited the arbitrary 
 Tudor notions of the Royal prerogative. I 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 ofEcclesias- 
 Elizabeth's Ecclesiastical polity — so important in its influ- Jf EiSabeth. 
 ence on later English Constitutional history — will appro- 
 priately precede a discussion of the Civil government during 
 her reign. 
 
 The first care of Elizabeth's first Parliament — which 
 met on the 25th of January, 1559, about two months 
 
460 
 
 The Tudor Period. 
 
 [Ch. 
 
 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 
 Act of as the Acts of Supremacy and Uniformity. By the Act of 
 Supremacy. Supremacy, the statute of Philip and Mary (i & 2 Phil. & 
 Mar. c. 8), which had generally repealed all the previous 
 statutes affecting religion, was abrogated, — thus reviving 
 the laws of King Henry VIII., which established the 
 Ecclesiastical supremacy of the Crown. 
 
 It was also particularly enacted: (i) That no foreign 
 prince, person, prelate, state, or potentate, spiritual or tem- 
 poral, shall use, enjoy or exercise any manner of power, ju- 
 risdiction, superiority, authority, pre-eminence, or privilege, 
 spiritual or ecclesiastical, within this realm, or the domi- 
 nions 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 correction 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 eccle- 
 siastics, and all judges, justices, mayors, and other laymen 
 holding office under the Crown, were required to take the 
 oath of supremacy and allegiance,^ on pain of forfeiting 
 their benefices or offices. (4) Any person maintaining 
 
 Oath of 
 supremacy 
 and alle- 
 giance. 
 
 ^ 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 do- 
 minions and countries, as well as in all spiritual and ecclesiastical things 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 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-eminence, privileges, and 
 authorities, granted or belonging to the Queen's highness, her heirs and suc- 
 cessors, or united and annexed to the imperial crown of this realm.' 
 
XII.] Elizabeth, 461 
 
 the spiritual or temporal jurisdiction of any foreign prince 
 or prelate should, for the first offence, forfeit all his pro- 
 perty real and personal ; for the second, incur the penalties 
 oi 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.^ It was 
 by virtue of this last provision that Elizabeth established, in 
 1583, the famous High Commission Court, which continued [Court of 
 a powerful instrument of oppression in the hands of the Commission, 
 Crown until abolished by the Long Parliament under 1583-] 
 Charles I. 
 
 By the Act of Uniformity, (i) the revised Book of Act of 
 Common Prayer as established by Edward VI. in 1552,15^9?^"^^^' 
 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 es- 
 tablished 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 rea- 
 sonable excuse, from the service at their parish church 
 on Sundays and holydays, were to be punished by eccle- 
 siastical 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 tenths 
 
 tenths, which the preamble states the late Queen had restored to 
 given up, ' upon certain zealous and inconvenient respects,' ^^ Crown 
 were again vested in the Crown, in order to lessen 'the 
 huge, immeasurable and inestimable charges of the royal 
 
 ^ Eliz. c. I, 'An Act to restore to the Crown the ancient jurisdiction over 
 the estate ecclesiastical and spiritual, and abolishing all foreign powers repug- 
 nant to the same.* 
 
 2 I Eliz. c. 2, 'An Act for the Uniformity of Common Prayer in the Church, 
 and Administration of the Sacraments.' 
 
462 
 
 The Tudor Period, 
 
 [Ch. 
 
 The Thirty- 
 nine Articles 
 of Religion. 
 
 Peculiar 
 
 character 
 
 of the 
 
 Reformed 
 
 National 
 
 Church. 
 
 Relation in 
 which the 
 Church 
 stood to the 
 Crown. 
 
 estate.' ^ Such religious houses as Queen Mary had re- 
 founded were suppressed, and their property also given to 
 the Crown.2 
 
 In 1563 the Articles of the English Church, forty-two in 
 number, originally drawn up in 1551 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.^ 
 
 These changes in religion were not effected without con- 
 siderable 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 Com- 
 mons, 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 prin- 
 ciples 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 heartily joined in them. . . . Nothing, however, so 
 strongly distinguished the Church of England from other 
 churches as the relation in which she stood to 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 precision. . . . What 
 
 1 1 Eliz. c. 4. 
 
 2 I Eliz. c. 24. 
 
 13 Eliz. c. 12. 
 
XII.] Elizabeth, 463 
 
 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 confessions of faith, and of giving religious in- 
 struction 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 pre- 
 tensions gave scandal to Protestants as well as to Catholics ; ' 
 and Elizabeth 'found it necessary expressly to disclaim 
 that sacerdotal character which her father had assumed, 
 and which, according to Cranmer, had been inseparably 
 joined, by divine ordinance, to the regal function.^. . . . 
 The Queen, however, still had over the church a visita- 
 
 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 [last of these] sovereigns, 
 and has not since been assumed by the Crown. 
 
464 The Tudor Period. [Ch. 
 
 torial power of vast and undefined extent. Aw By the 
 royal authority alone, the prelates of the Church of 
 England were appointed{'< jBy the royal authority alone 
 her Convocations were summoned, regulated, prorogued 
 and dissolved!^ jWithout the royal sanction her canons 
 had no force.^ Pne of the articles of her faith was that 
 without t^e royal cpnsent no ecclesiastical council could 
 lawfully assemble. ^5 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 extensive 
 power to our princes. . . . 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 main- 
 tained that subjects might justifiably draw the sword 
 against ungodly rulers. In France, Calvinists 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.' ^ 
 Oath of When the oath of Supremacy was tendered to the 
 
 reCby Bishops, one only, Kitchin of LlandafT, was prevailed 
 all the upon to take it ; the rest, on refusal, were deprived of their 
 
 except'one. sees.^ But the general body of the beneficed clergy, with 
 
 But the . ^ — 
 
 clergy 
 
 1 Macaulay, Hist. Eng. i. [52-58], 
 
 2 It happened that ten sees were vacant at Elizabeth's accession, and fifteen 
 more were vacated by the Bishops who refused the oath of supremacy. Matthew 
 Parker, who had been chaplain to Queen Anne Boleyn, was consecrated Arch- 
 
XII.] Elizabeth, 465 
 
 the exception of a very small number, acquiesced in the generally 
 new order of things and retained their livings.^ 
 
 Throughout her reign it was the constant policy of Persecuting 
 Elizabeth to maintain her Ecclesiastical supremacy, and to ^ ^ " ^^' 
 enforce outward conformity with the religion established by 
 law.^ This policy, which is expressed in a series of perse- 
 cuting 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 supported 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 Romanists was made by a Act of 1562. 
 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 danger 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, 
 
 bishop of Canterbury, December 17, 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. 
 
 ^ 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. 
 
 " 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. [Elizabeth's line is thus described by S. R. 
 Gardiner, LL.D., Hist. Eng., 1603-42, vol. i. p. 12. 'Opinion was to be 
 practically free, but all must go to church, and the exercise of the Roman 
 Catholic worship was rigidly suppressed.' Gardiner thinks that Elizabeth 
 ' took no interest in theological reasoning,' and ' miscalculated the power 
 which it still exercised in the world.' The alleged want of interest seems 
 difficult to believe of one brought up in an atmosphere so full of Theological 
 controversy, in which she necessarily took a side. That Elizabeth may have 
 miscalculated the interest which it had for the world of her day is possible, 
 but even that seems scarcely probable. — Ed.] 
 
 C.H. H H 
 
466 The Tudor Period. [Ch. 
 
 hath been had, used, and established.' It was therefore 
 enacted: (i) That the penalties oi praemunire sVowX^h^ 
 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 Roman Catholics, 
 the Queen declared her full confidence.^ 
 Speech of This severe statute excited some opposition in both 
 
 Montagu. Houses of Parliament. In the Upper House, Lord Mon- 
 tagu delivered a speech against it which is characterised 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 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 
 
 • 5 Eliz. c. i. 
 
XII.] Elizabeth, 467 
 
 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 understanding 
 may be persuaded but not forced.' He concluded 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.' ^ This reasoning seems to have 
 produced some effect on 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 supremacy under the Act, and never 
 to do so the second time, on which the penalty of treason 
 might attach, without his previous authorisation. Some 
 time afterwards, however. Home, Bishop of Winchester, 
 indiscreetly giving vent to his indignation against Bonner, 
 the deprived Bishop of London, who was specially ob- 
 noxious 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 therefore had no 
 authority to tender the oath. The prosecution was now 
 dropped ; Bonner was suffered to return to his prison in 
 the Marshalsea, where he had been confined since the 
 
 accession of the Queen ; and as soon as Parliament was TheBishops' 
 
 Act, 1566. 
 
 ^ Strype, cited in Ilallam, Const. Hist. i. ii6. 
 
 H H 2 
 
468 
 
 The Tudor Period. 
 
 [Ch. 
 
 The Roman 
 Catholics 
 suspected of 
 disloyalty. 
 
 Elizabeth's 
 title to the 
 throne 
 purely Par- 
 liamentary. 
 
 re-assembled, an Act was passed declaring the consecra- 
 tion of the Archbishops and Bishops, as practised since the 
 Queen's accession, ' good, lawful, and perfect' ^ 
 
 Eight years elapsed before further legislation was directed 
 against the Roman Catholics ; but in the meantime several 
 circumstances had occurred, which rendered them specially- 
 obnoxious to the Government, not merely as being oppo- 
 nents of the established religion, but as tainted with dis- 
 loyalty 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, pronounced a condemnation of such outward 
 conformity. This censure was industriously circulated 
 throughout England by William Allen ^ and other priests, 
 who now 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 attend- 
 ance 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 Roman Catholic 
 subjects were also materially affected by the special character 
 of her title to the throne, and the uncertainty in which the 
 succession was involved, — an uncertainty which was in- 
 creased 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 Par- 
 
 ' 8 Eliz. c. I. The only [Legal] 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 Pre- Reformation [Sarum] 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 the English 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 Rite. He founded 
 a seminary at Douay, where [Roman] 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, 
 wrote an Admonition in favour of the projected Spanish Armada, and was re- 
 warded by Philip II. with the Archbishopric of Mechlin. He died in 1594. 
 Lingard, Hist. Eng. viii. 140, 442. 
 
XII.] Elizabeth. . 469 
 
 liament (35 Hen. VIII. c. i), by which the Crown had been 
 settled upon her. She had also been nominated 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 (i 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 Parlia- 
 ment. But the natural prejudice of most of the Roman Roman 
 Catholics in favour of a monarch of their own religion, ^vmi°/\h^e 
 coupled with the preference felt by many for a strictly hereditary 
 hereditary over a purely Parliamentary title, led them to ^ary Queen 
 regard the Queen of Scots, grand-daughter of Henry VIII.'s of Scots, 
 eldest 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 Title of the 
 will — executed under Parliamentary authority — the succes- g^Xlk.^^ 
 sion in remainder was vested in the House of Suffolk to the 
 postponement, if not exclusion, of the Scottish line. But Harsh treat- 
 the harsh and unjust condemnation of Lady Catherine L^dy Ca- 
 Grey's private marriage with the Earl of Hertford, which therineGrey. 
 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 [Roman] Catholic adherents of Mary of Scotland. 
 So early as 1563, Edmund and Arthur Pole, nephews of the Treason of 
 late Cardinal, were tried and convicted of high treason on a Arthur" pX 
 charge of designing to set the Queen of Scots on the throne 
 and to re-establish Romanism in England. In 1 567, Mary, Effect of 
 having been driven from her throne, in a great measure int^o Eng- 
 owing to the intrigues of Elizabeth's Ministers with the ^^^d. 
 Scottish malcontents, escaped into England, only to en- 
 dure a long imprisonment ending in a violent death. Her 
 presence on English soil revived the hopes of the Roman- 
 ists. Plots were formed for her liberation, for the invasion 
 of England by Spain, and for the re-establishment of 
 the Roman Rite. In 1569 the Duke of Norfolk, the 
 greatest and richest subject in England, was concerned in Rebellion of 
 an extensive conspiracy, involving the deposition of the j^Q^foii^ . 
 
470 
 
 The Tudor Period. 
 
 [Ch. 
 
 and of the 
 Earls of 
 Northum- 
 berland and 
 Westmore- 
 land, 1569. 
 
 Bull of 
 [Excommu- 
 nication of] 
 Pius V. 
 1570. 
 Acts of 
 1571- 
 
 Queen, his own marriage with Mary of Scotland, and the 
 invasion of the kingdom by the Duke of Alva.^ Later in 
 the same year the Earls of Northumberland and Westmore- 
 land 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, pub- 
 lished his celebrated Bull, excommunicating and deposing 
 Elizabeth, and absolving all her subjects from their oaths 
 of fidelity and allegiance.^ 
 
 As soon as Parliament met, in April, 1571, two statutes 
 were passed in reply to the Pope's Bull, and as a precaution 
 against fresh attempts on the part of Mary's partisans. 
 By the first of these, (i) 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 im- 
 prisonment and forfeiture of goods, and on repetition by a 
 praemiini7'e, 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.^ The second Act refers specially to the 
 
 * He was convicted of treason and executed in 1572. Supra, p. 406. 
 
 2 'The bull of Pius V.,' observes Hallam (Const. Hist. i. 137), 'far more 
 injurious in its consequences to those it was designed to serve than to Eliza- 
 beth, 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 maintained in all countries by many 
 whose zeal and ability 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 kingdom, not only to keep alive 
 the precarious faith of the laity, but, as was generally surmised, to excite them 
 against their sovereign. ' 
 
 * 13 Eliz. c. I. Supra, p. 228. 
 
XII.] Elizabeth. 471 
 
 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 igno- 
 rant, have so far wrought, that sundry simple and ignorant 
 persons have been reconciled to the usurped authority of 
 Rome, and to take absolution, whereby have grown great 
 disobedience and boldness, not only to withdraw from all 
 divine service, but thinking themselves discharged from all 
 allegiance to the Queen, wicked and unnatural rebellion 
 hath ensued.' It was therefore enacted : (i) That any 
 person publishing any Bull from Rome, or absolving and 
 reconciling any one to the Roman Church, or being so 
 reconciled, should incur the penalties of high treason. (2) 
 Aiders and comforters after the fact were to moMX praemu- 
 nire ; and any person to whom absolution should be offered, 
 and who should not disclose such offer within six weeks to 
 some member of the Privy Council, was to be held guilty 
 of misprision of treason. (3) Praemunire was also imposed 
 upon such as brought into the realm ' things called Agnus 
 Dei, or any pictures, crosses, beads, or such-like supersti- 
 tious things, hallowed and consecrated, as it is termed, by 
 the Bishop of Rome.' ^ 
 
 During an interval of ten years no further statute was Jesuits and 
 passed against the Roman Catholics, but the existing laws ^rStTfn^ 
 were enforced by the Government in all their severity. Perse- England, 
 cution, however, served only to excite fresh manifestations 
 of zeal. Missionary priests were poured into the kingdom 
 from Douay and Rome; and in 1580, a mission of the 
 recently-founded order of Jesuits, under the leadership of 
 Robert Parsons and Edmund Campion, was despatched by 
 Pope Gregory XIII. to bring about the re-conversion of 
 England. The Government was seriously alarmed. A 
 proclamation was issued denouncing 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 was passed ' to retain the queen's majesty's Act of 
 1 580-1. 
 
 ^ 13 Eliz. c. 2. 
 
472 
 
 The Ttcdor Period. 
 
 [Ch. 
 
 The Jesuit 
 Campion. 
 
 subjects in their due obedience.' By this«stafute : (i) The 
 former provisions making it high treason to reconcile any of 
 her 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 imprisonment ; and persons employing 
 them unlicensed, were to forfeit 10/. a month.^ 
 
 Shortly afterwards, the Jesuit Campion and several 
 seminary priests from Flanders, after having eluded the 
 vigilance of the government for some time, were seized and 
 imprisoned in the Tower. Under the pain of the rack,^ 
 
 ^ 23 Eliz. c. I. By a subsequent Act (26 Eliz. c. 6) the Queen was em- 
 powered, for default of payments of the fine, to seize two-thirds of the land 
 and all the goods of the delinquents. 
 Torture. ^ ' T\\q. common law of England . . . neither admits of torture to extort con- 
 
 fession, 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.' Hallam, Const. Hist. i. 148. Though 
 unknown to the Common Law, torture seems to have been occasionally em- 
 ployed, by special licence from the Crown. Some early instances of its use 
 are given in Mr. L. O. Pike's History of Crime, vol. i. For a description of 
 the different kinds of torture, 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 {t. Car. I.) for 
 the assassination of the Duke of Buckingham, when it was proposed in the 
 Privy Council to put the accused on the rack in order to discover his accom- 
 plices, the Judges (being consulted) declared unanimously that no such pro- 
 ceeding was allowable 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 St. Tr., 367, 571, Mr. Jardine, in his 
 * Reading on the use of Torture,' says 'the last case of torture in England, 
 of which I can find any trace, occurred in the year 1640.' [On Torture 
 under Roman Law, see Law Magazine and Review, No. CCLXXIV., for 
 Nov., 1889, Art. The State and Private Life in Roman Law, by James 
 Williams, B.C.L., and cf. Art. by same in Encyc. Brit., 9th ed., s.v. Torture, 
 or the subject generally. Gardiner, Hist. Eng., 1603- 1642, i. 265, basing 
 
XII.] Elizabeth. 473 
 
 Campion revealed the names of several [Roman] Catholics 
 who had sheltered him, and who were fined and impri- 
 soned for the offence. Failing to give satisfactory answers 
 as to the Pope's deposing power, he was tried and 
 
 condemned for high treason, and executed with two other Executed, 
 
 . , iqSi.Dec. I. 
 
 priests. ^ ' 
 
 Driven to desperation by the severity of the persecution, Plots against 
 some of the more reckless spirits among the Roman Catholics {jfe. ^^^^^ 
 now began to form plots for the assassination of the Queen, as 
 a means to the elevation of Mary of Scotland to the throne. 
 In September, 1584, one Creighton, a Scottish Jesuit, was 
 captured at sea, bearing about him the heads of a plan for 
 a Spanish invasion and the deposition or death of the 
 Queen. When Parhament met in November, its first Act Association 
 was one ' for the security of the Queen's most royal person Queen's 
 and the continuance of the realm in peace.' This statute defence. 
 legalised 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 compassed or 
 imagined tending to the hurt of her person, with the 
 privity of any such person, a number of peers, privy coun- 
 cillors, and judges, to be commissioned by the Queen, 
 should examine and ^vj& judgment on such offences and 
 all circumstances relating thereto. All persons who should 
 authorise such an attempt, or on whose behalf the same 
 should be made, were declared to be incapable of ever 
 inheriting the throne.^ 
 
 It was under the provisions of this statute that Mary, [Execution 
 
 of Mary, 
 _ ____ _ _________ Queen of 
 
 apparently on Jardine, assumes the use of torture to have been ' considered to if'. """^J^ 
 be a part of the Royal Prerogative.' This view would seem to be implied in ^7 Enz. 
 the ' special licence from the Crown ' mentioned in the author's note, supra. ^' ^'J 
 But that there ever existed a special Prerogative to order the employment of 
 Torture may be doubted ; it can scarcely have been, as Gardiner seems to 
 take it, part of an assumed general Prerogative to override the Common 
 Law. — Eu.] 
 1 27 Eliz. c. I. 
 
474 
 
 The T^idor Period. 
 
 [Ch. 
 
 Act against 
 
 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.' ^ 
 
 The second Act of the Parliament of 1585 was directed 
 i^?85^^"^*^' against 'Jesuits, seminary priests, and other such-like dis- 
 obedient persons.' (i) All Jesuits, seminary and other 
 Roman Catholic priests, whether ordained within or without 
 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 disclosing the fact to a 
 magistrate, was to be fined and imprisoned at the Queen's 
 pleasure. (2) All students in the Romanist 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 
 ICX)/. 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.^ 
 
 So drastic a law as this would seem to have rendered 
 any further penal legislation against, the Roman Catholics 
 unnecessary. The execution of Mary of Scotland on the 
 8th of Feb. 1 587 relieved the Queen from the only dangerous 
 Scots, 1587. pretender to the throne, and deprived the [Roman] Catholics 
 Spanish of their last hope. The patriotism and loyalty displayed 
 by them during the agonising crisis of the Armada would 
 have been fitly acknowledged by some remission of penalties. 
 But far from being relaxed, the persecution became more 
 
 Execution 
 of Mary, 
 Queen of 
 
 Armada, 
 
 * For remarks on the trial and execution of Mary of Scotland, arguing 
 that ' if not capable of complete vindication it has at least encountered a dis- 
 proportioned censure,' see Hallam, Const. Hist. i. 158-162. 
 
 2 27 Eliz. c. 2. 
 
XII.] Elizabeth. 475 
 
 rigorous ; ^ and yet one more statute was passed against Act of 
 ' 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 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.^ 
 
 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 [Roman] 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 Non- Persecution 
 conformists no such extenuation can be pleaded.^ * The Protestant 
 Puritans,' as Macaulay has justly remarked, ' even in the sectaries, 
 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 
 
 * The Roman Catholic martyrs under EUzabeth 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. 
 
 " 35 Eliz. c. 2. 
 
 3 [In point of fact, Elizabeth seems practically to have had no alternative 
 action open to her with regard to the Puritan party. Gardiner, Hist. Eng. 
 1603-1642, i. 25-26, argues that ' in taking her stand, as she did, against the 
 abolition of Episcopacy, Elizabeth was on the whole acting on behalf of the 
 liberty of her subjects. . . . They [the Puritan party] asked for no position 
 which was to be held on sufferance ; their claim was that their system was 
 directly commanded by the Word of God, and that, without grievous sin, not 
 a moment could be lost in delivering the whole Church of England into their 
 hands.' This is, of course, not an argument in favour of persecution, but it 
 shews that there was no practical possibility of making terms with the extreme 
 Puritan school, and, unfortunately, repressive Legislation was the only means 
 of keeping down differences which threatened to throw England ' into confusion 
 from one end to the other ' recognised by either the Crown or the Parliament 
 in Elizabeth's day. — Ed.] 
 
476 The Tudor Petiod, [Ch. 
 
 by his intemperate zeal, waved his hat with the hand 
 which was still left him, and shouted, "God save the 
 Queen! "'^ 
 
 The reformed Anglican Church, as professedly ' keeping 
 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 Roman 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. Returning to England on the accession of 
 Elizabeth, these exiles were dissatisfied at finding that far 
 from proceeding in the path of reform, the Queen and her 
 Ministers were inclined somewhat to recede even from the 
 point which had been attained under Edward VI. ^ Though 
 separated from the Roman Communion, the Anglican 
 reformers 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 
 fact of the separation was in its essence an assertion, 
 however unintentional, of the right of private judgment. 
 
 ^ Hist. Eng. i. [62]. 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 subjects, entered 
 into negotiations for a marriage with the Duke of Alengon (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 and 
 affection towards the Queen, he suffered the mutilation mentioned in the 
 text. 
 
 2 The retention of vestments, instrumental music, and other features of the 
 ancient church ceremonial, though thoroughly defensible on the grounds of 
 decency and order, and as tending to conciliate the very large Roman party 
 existing in the kingdom, was due in a large measure to the strong personal 
 predilection of the Queen. She manifested a very decided leaning towards the 
 forms of worship and even to some of the doctrines of the Roman 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. 
 
XII.] Elizabeth. 477 
 
 Having emancipated themselves by a great mental effort 
 from the despotism of a church 'strong in immemorial 
 antiquity and catholic consent/ ^ the m.ore ardent Reformers 
 were indignant at the attempt made to bind them anew 
 by the authority of a Church which they considered to be 
 sprung from the exercise of that right of private judgment 
 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 sympathised with the 
 Puritan party. But in 1565 the Queen determined to put 
 a stop to these irregularities. At her instigation Arch- Archbishop 
 bishop Parker published a book of ' Advertisements ' to the Advertise- 
 clergy, containing strict regulations for their discipline, i^^ents. 
 Shortly afterwards, Sampson, Dean of Christchurch, and 
 Humphrey, Regius Professor of Divinity and President of 
 Magdalen College, Oxford, two of the most ^minent 
 Puritans, were deprived of their preferments ; and thirty- 
 seven of the London clergy refusing to comply with the 
 legal ceremonies, were suspended from their ministry and 
 threatened with the punishment of deprivation. Abandon- puritan con- 
 ing the churches, the lay Puritans in London now began to venticles. 
 form separate conventicles. In June, 1567, a congregation Attempt to 
 of more than one hundred were seized at Plumbers' Hall, tfjg^'^^f^.gy 
 and about thirty of them subjected to a year's imprison- 
 ment for their contumacy." This was the first instance of 
 actual punishment inflicted on Protestant dissenters. 
 
 Hitherto the Puritans had restricted their opposition to The Puritans 
 the retention of what they deemed superstitious ceremonies ^"^^^^^ ^^P^^" 
 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 Cartwright's 
 
 ' Admoni- 
 
 — — tion to the 
 
 Parliament.* 
 
 1 [It is obvious, of course, that the maintenance of an attitude of separation 
 from Rome was justifiable on the ground that the Roman system had neither 
 ' Antiquity ' nor * Catholicity ' really on its side, in the sense of the well- 
 known Canon of Vincent of Lerins. — Ed.] 
 
 2 Lingard, viii. 73. 
 
478 The Tudor Period. [Ch. 
 
 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 
 abrogating some of the Thirty-nine Articles, but, mainly 
 through the determined opposition of the Queen, they were 
 Archbishop invariably withdrawn. Archbishop Grindal, who succeeded 
 sequestered P^^^^er in February, 1576, was inclined to the views of the 
 from his see Puritans, and for refusing to comply with the command to 
 to suppress^ suppress certain meetings of the more precise clergy for 
 the'Prophe- prayer and exposition of scripture, termed ' Prophesyings,' 
 was sequestered from his see for five years, and only 
 escaped deprivation by his death in 1583. 
 Archbishop Whitgift, his successor in the Primacy, was a strenuous 
 ^ ^^ ' opponent of the Puritans. Under the provision of the Act 
 of Supremacy of 1559, authorising the Queen to execute her 
 Ecclesiastical jurisdiction by Commissioners appointed under 
 the Great Seal, several temporary Commissions had been 
 successively appointed, mainly with a view to the coercion 
 High Com- of the Roman Catholics. In Dec. 1383 the High Commis- 
 CourTestab- ^^^"^ Court was permanently established with such extensive 
 lished, 1583. and formidable powers as to render it a very near approach 
 to the Roman Inquisition. Of the forty-four Commis- 
 sioners who composed this tribunal, twelve were prelates ; 
 and three, of whom one must be a Bishop, formed a quorum. 
 They were directed to enquire 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 
 
 ^ [Gardiner, Hist. Eng., 1603-1642, i. 34, 35, has some strong remarks on 
 the varied forms of oppression united in this Court. As to the Inquisition, he 
 notes two points of difference by which * alone ' the Court of High Commission 
 was distinguished : it was * incompetent to inflict the punishment of death, 
 and it was not permitted to extract confessions by means of physical torture. ' 
 With regard to the Jury he says, not without a certain irony, ' It would have 
 been almost impossible to have constituted an English court without assigning 
 
xiL] Elizabeth, 479 
 
 religion, such as heretical and schismatic 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 excommunication, fine and imprisonment.^ 
 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 The oath 
 a series of Ecclesiastical 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 inquisitors of Spain used not so many questions to 
 comprehend and to trap their preys.' ^ 
 
 Instead of producing conformity, the rigorous proceedings 
 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 published under the 
 pseudonym of ' Martin Mar-Prelate,' rapidly issued from Martin Mar- 
 the press and obtained a wide popularity. phietl^ ^^"^" 
 
 An Act had been passed in 1581, levelled at the writings Puritan 
 of the seminary priests, by which it was made a capital 'uni^shed 
 felony ' to write, print, or set forth any manner of book, with death, 
 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.' ^ By a strained construction of the Judges it was 
 
 to'it the power of arriving at the truth by the ordinary mode, the oaths of 
 twelve good and lawful men. But, homage having been thus done to this 
 time honoured institution, the Commission proceeded to direct that recourse 
 might be had to witnesses alone, and even that conviction might be obtained 
 by all other ways and means which could be devised.' This last 'vague clause,' 
 it was soon seen, meant the oath ex officio. — Ed,] 
 
 1 Neal, Hist. Puritans, i. 409 seq. ; Strype, Annals, iii. 180. 
 
 2 Strype's Whitgift, 157. 
 
 3 23 Eliz. c. 2. 
 
480 The Tudor Period, [Ch. 
 
 held that the Puritanical 'libels,' as they were termed, 
 tending to subvert the constitution of the Church and the 
 Ecclesiastical supremacy of the Queen, were seditious, and 
 punishable under the Act. Of the most conspicuous 
 Udal, 1 591. victims, Udai, 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 inter- 
 cession of Whitgift, but the prisoner soon died from the 
 Barrow and severity of his confinement. In 1 593, Henry Barrow, a 
 Greenwood, j^wyer, and John Green v/ood, a clergyman, were convicted 
 and executed for writing ' sundry seditious books, tending 
 to the slander of the Queen and State ; ' and the same 
 Penry, 1593. 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 unconnected 
 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.^ 
 Influence of The position of Ecclesiastical affairs in Scotland was at 
 Ecclesiasti- °"^^ ^" encouragement to the English Puritans to perse- 
 cal affairs on vere in their efforts and an incentive to Elizabeth and her 
 -ngan(. councillors to enforce strict uniformity. The Scottish 
 Reformed Church, as established in 1560, though retaining a 
 nominal form of Episcopacy, approached very nearly to the 
 system of Church polity advocated by the Puritans, and in 
 1592 Episcopacy was abolished altogether." About the 
 Presby- same time a serious attempt was made, under the leader- 
 England! '" ship of Cartwright, to set up the Presbyterian system in 
 1591- England. Cartwright and nine of his associates were sum- 
 
 moned before the High Commission Court, and, refusing 
 to answer interrogatories under the oath ex officio^ were 
 
 1 Lingard, viii. 304. 
 
 - [On this see Church Quarterly Review^ Jan. 1885, Art., The Seahury 
 Centenary. On the state of Ecclesiastical affairs in Scotland and its influence 
 upon England, see Gardiner, Hist. Eng. 1603-1642, i. ch. ii., Church and 
 State in Scotland.— Ed.] 
 
XII.] 
 
 Elizabeth. 4^ ^ 
 
 committed to prison. In the Star Chamber — a tribunal 
 possessing more extended 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 was induced to pass an Act sub- Act of 1593 
 jecting Protestant nonconformists to penalties similar to ^^^^^JJ^^j. j^^^'. 
 those already imposed upon Popish recusants.^ All persons conformists. 
 above the age of sixteen denying or impugning the Queen's 
 supremacy, or obstinately refusing to come to the church 
 established by law, or attending ' any assemblies, conven 
 tides, 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.^ 
 
 The persecuting policy adopted by Elizabeth against Political 
 the Puritans had most important political results. * It found pg^j-secution 
 them a sect ; it made them a faction. To their hatred of of the 
 the Church was now added hatred of the Crown. The two 
 sentiments were intermingled ; and each embittered the 
 other.' ^ During the closing years of Elizabeth's reign, and 
 throughout the Stuart period, the firmest champions of 
 
 1 [Gardiner, Hist. Eng. 1603- 1642, i. 37, attributes the cooling of the 
 House of Commons in its defence of the Puritans at least in part to the 
 • licence which the authors of a series of Puritan libels [the Mar-prelate libels]; 
 allowed themselves, 'and to the spread of JBrownist, or Independent, opinions, 
 some of which, as H. Barrow's Platform^ cited by Gardiner, went so far as to 
 call upon the Queen to ' forbid and exterminate all other religions, worship, 
 and ministers within her dominions.' — Ed.] 
 
 2 35 Eliz. c. I, 'An Act to retain the Queen's majesty's subjects in their due 
 obedience.' 
 
 2 Macaulay, Hist. Ens;, i. [60]. 
 
 C.H. I I 
 
character. 
 
 482 The Tudor Period, [Ch. 
 
 Constitutional liberty against the arbitrary exercise of 
 Royal power were drawn from the Puritan ranks.^ 
 Civil The Ecclesiastical despotism of Elizabeth was, at least, a 
 
 of Elizabeth. ^^^'^ 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 unre- 
 cognised by the Constitution, either in theory or in prac- 
 tice : ^ for the Church was still regarded as the whole 
 nation in its religious aspect, though in fact the Church 
 Its despotic and the Nation were ceasing to be co-extensive. But the 
 despotic acts of Elizabeth'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 predecessors of the Tudor dynasty, were un- 
 doubtedly illegal, and known to be so by those who never- 
 theless 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 
 
 1 '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. 
 
 2 * At the end of the i6th 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- 
 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 Protestant 
 country, though the Huguenots shed oceans of blood to secure the same privi- 
 lege for themselves.' Hallam, Literature of Eur., i. 559. * Even at the close 
 of the 17th 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. 
 
XII.] Elizabeth. 4^3 
 
 sufficiently strong and organised to compel the Queen and 
 her Ministers to defer to its wishes. 
 
 The administration of justice in all trials partaking in Political 
 any degree of a political nature was characterised by that unjustly 
 iniquitous straining of law and evidence in favour of the conducted. 
 Crown, which was the common feature of all the Tudor 
 reigns, and attained a still more disgraceful notoriety under 
 the Stuarts. 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 murderers. Whoever was 
 arraigned at their bar was almost certain to meet a viru- 
 lent prosecutor, a judge hardly distinguishable from the 
 prosecutor except by his ermine, and a passive pusil- 
 lanimous jury.' ^ 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.^ But besides the ordinary 
 judicial tribunals there existed the two courts of High 
 Commission and Star Chamber, respectively taking cogni- 
 sance of all offences against the Ecclesiastical supremacy 
 and the Royal prerogative of the Sovereign ; special courts 
 of Commissioners occasionally appointed for the trial of 
 offences ; and the Courts-Martial by which the Queen Courts 
 frequently superseded the operation of the Common Law. ^^^t^^^- 
 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 inva- 1588. 
 sion, 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 
 
 ^ Const. Hist. i. 231. 
 2 Supra, pp. 476, 480. 
 
 I I 2 
 
484 The Tudor Period, [Ch. 
 
 arbitrary temper of Elizabeth led her to' have recourse to 
 this summary process when there existed no justification in 
 
 iS73« 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 oy 
 Martial law, and was with great difficulty persuaded by her 
 Council to allow the Civil jurisdiction to take its ordinary 
 course.^ A much more violent and illegal proceeding took 
 
 1595- 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 empowered * 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 com- 
 mitted and examined 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 incorrigible 
 offenders.' ^ 
 
 Illegal com- Another intolerable grievance by which the people were 
 
 mitments. 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 prisoner suing out a 
 writ of habeas corptis ; and even when liberty had been 
 
 ^ Strype, Ann. ii. 288. While imprisoned in the Tower, Burchell 
 murdered one of his keepers, for which offence he was hanged in due course 
 of law. 
 
 2 Rymer, xvi. 279. Five of the apprentices were executed as traitors on 
 Tower Hill, July 24. 
 
XII.] Elizabeth, 4^5 
 
 obtained by order of a court of law, the person so dis- 
 charged 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 Remon- 
 that, in 1591, the Judges ventured to present a joint remon- th? Judges 
 strance to Sir Christopher Hatton, Lord Chancellor, Sir against 
 William Cecil, and Lord Burleigh, the Treasurer. They 1591,' 
 desired that ' order may be taken that her highness's sub- 
 jects may not be committed or detained in prison, by com- 
 mandment 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 it be after judgment and accusation.^ 
 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 
 certified 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 
 
 1 In a patent, dated May 19, 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 of London, 
 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 enrolment thereof.' — Annals of England, Lib. ed. p. 340, n. 
 
486 The Tudor Period. [Ch. 
 
 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 compelled to pay to the pursuivants 
 great sums of money against the law, and have been com- 
 mitted 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 removable from 
 office at the Queen's pleasure, is a remarkably outspoken 
 vindication of the right of personal freedom. But it con- 
 cludes rather tamely, by leaving to the Executive govern- 
 ment 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 ma- 
 jesty'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 touching her 
 majesty's person, which causes being generally returned 
 into any court, is good cause for the same court to leave the 
 perso7z committed in custody! ^ 
 Illegal Pro- The Royal Proclamations put forth under Elizabeth seem 
 clamations. j-q 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 abso- 
 lute or sovereign power, which sanctioned commands 
 beyond the legal prerogative, for the sake of public safety, 
 whenever the council might judge that to be in hazard.' ^ 
 New offences, unknown to the common law, and affecting 
 
 * Lansdowne MS. Iviii. 87, Brit. Mus., cited in Hallam, Const. Hist. i. 235 
 2 Hallam, Const. Hist. i. 237. 
 
XII.] Elizabeth, 487 
 
 the persons and property of whole classes of the Queen's 
 subjects, were from time to time constituted by Royal Pro- 
 clamation alone, and made punishable with fine and im- 
 prisonment.i The Press was placed under a strict cen- Restrictions 
 sorship; and in 1585, at the instigation of Archbishop ^^d^bool"^ 
 Whitgift, the trades of printing and book-selling were selling, 
 subjected to most stringent regulations by an ordinance 
 of the Star Chamber, published to restrain the ' enormities 
 and abuses of disorderly persons professing the art of 
 printing and selling books.' ^ 
 
 The frugality of Elizabeth, and the sums which she re- Economy of 
 ceived 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 liberality and 
 readiness. She indeed occasionally had recourse to the Revenue 
 ancient practice of forced loans from the wealthy, notwith- occasionaUy 
 standing the statute of Richard III. against them. But by means of 
 she is honourably distinguished from her predecessors by^^ichwere' 
 the moderation and tact with which these loans were punctually 
 exacted and by her punctuality and speed in repayment.^ ^^^^^ 
 
 Very much of the credit, and a fair share of the odium. Lord Bur- 
 leigh's ad- 
 ministration. 
 
 ^ 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 proclama- 
 tions, which might affect any matter even of the greatest importance, 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. 
 
 '^ Strype, Whitgift, 222, Appendix, 94, 
 
 ^ * 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 counsel, 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. 
 
4^8 The Tudor Pe^dod, [Ch. 
 
 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 administration 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 persuasion 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 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 wanting 
 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 atten- 
 tion 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 posses- 
 sion, 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 con- 
 stitution 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." ^ 
 
 ^ Hallam, Const. Hist, i, 247. 
 
xiL] Elizabeth, 489 
 
 Throughout the reign of Elizabeth the predominant Puritan 
 party in the House of Commons was composed of members in the 
 
 more or less imbued with the Puritan doctrines. Amongst House of 
 
 ° Commons, 
 them were many bold and active spirits, well read in Con- 
 stitutional lore, who gradually organised an opposition to 
 the despotism of the Crown, and on several occasions 
 successfully resisted all the efforts of the Court party. 
 
 The two principal subjects upon which conflicts arose Conflicts 
 between the Crown and Parliament were the settlement of ciown : 
 the Succession to the Throne, and a further reformation in (i) As to 
 the Established Church. At first the efforts of the Com- seniement 
 
 „, of the Suc- 
 
 mons were directed towards urging the Queen to marry, a cession. 
 
 request to which she always returned evasive answers. As 
 the hope of her marriage grew fainter, and the fears of the 
 popular party increased lest the claim of Mary, Queen of 
 Scots, should be preferred to the title of the House of 
 Suffolk, Parliament became more urgent for some ' pro- 
 clamation of certainty already provided,' alluding to the 
 settlement of the Succession under Henry VHI.'s will, ' or 
 else by limitations of certainty if none be/ by means of a 
 fresh Parliamentary settlement^ The Queen resolutely 
 declined to pronounce between the conflicting claimants to 
 the throne ; a policy in which she appears to have been 
 supported by Cecil, who thought that no limitation of the 
 Crown could at that time be effected without great peril to. 
 the State. In 1566 this question gave rise to one of the 1566. 
 most serious conflicts between the Crown and the Commons! 
 which had arisen since the days of Henry IV. Both* 
 Houses of Parliament united to importune the Queen to 
 give way. In both very bold language was employed, and 
 some Peers, members of the Queen's Council, are even said 
 to have insisted in their places that Her Majesty ought to 
 be compelled to take a husband, or else that a successor 
 should be declared by Parliament against her will. Eliza- 
 beth met the attack with boldness and tact. The recal- 
 citrant Peers were excluded from her presence until they 
 
 1 D'Ewes' Journal, p. 82. 
 
490 The Tudor Period. [Ch. 
 
 had made submission, and the Commons were induced, by 
 the Ministers in their house, to modify their request that 
 the Queen would name her successor, by coupling with it 
 an alternative request that she would take to herself a 
 husband. To this she returned a vague but courteous 
 answer. The Commons, however, were not satisfied, and 
 continued to discuss the question of the Succession. The 
 Queen at length positively enjoined them, through the 
 Speaker, to proceed no further in the business. Hereupon 
 a member, Paul Wentworth, moved to know whether the 
 Queen's command and inhibition were not against their 
 liberties and privileges } Lengthened debates ensued, and 
 at the expiration of several days the Queen, finding it 
 advisable to give way, informed the Speaker that she 
 revoked her former commandment and inhibition ; ' which 
 revocation,' says the Journal, ' was taken by the House 
 most joyfully, with hearty prayer and thanks for the 
 same.' ^ 
 
 Five years elapsed before the Queen summoned another 
 
 Parliament. At its meeting in April, 1571, the Lord 
 
 Keeper Bacon, in replying to the Speaker's customary 
 
 demand of freedom of speech, said that ' her majesty 
 
 having experience of late of some disorder and certain 
 
 offences, which, though they were not punished, yet were 
 
 they offences still, and so must be accounted, they would 
 
 ' therefore do well to meddle with no matters of State but 
 
 1 such as should be propounded unto them, and to occupy 
 
 I themselves in other matters concerning the common- 
 
 1 wealth.' 2 
 
 (2) As to Silenced for a time on the question of the Succession, 
 
 asticai the Commons now turned their attention to another topic 
 
 reforms. equally obnoxious to the Queen. In this session no fewer 
 
 than seven Bills were introduced in the Lower House for a 
 
 further reformation of Ecclesiastical affairs. Elizabeth was 
 
 indignant at this interference with her supremacy, and 
 
 1 Hallam, Const. Hist. i. 251. 
 
 2 D'Ewes' Journal, p. 141. 
 
XII.] Elizabeth. 49 1 
 
 Strickland, the mover of the Bills, was sent for to the 
 Council and ordered not to appear again in his place in 
 Parliament. This proceeding was noticed in the House as 
 being a violation of Parliamentary privilege, and an injury 
 not merely to himself but to his constituents whom he 
 represented. The Ministers endeavoured to excuse his 
 detention on the ground that it was occasioned not 
 by anything spoken in the House, but by his having 
 introduced Bills against the prerogative of the Queen. • 
 
 Mr. Yelverton, however, maintained that although the 
 Queen's prerogative was to be upheld, it ought to be 
 confined within reasonable limits ; that as the Queen could 
 not make the law, so she had no right to break it : and 
 that as that House, where all things came to be considered, 
 could determine the right to the Crown, — which it would be 
 high treason to deny, — it could certainly entertain motions 
 respecting religious ceremonies. Seeing the resolute atti- 
 tude of the House, the Queen prudently permitted Strick- 
 land to return to his place.^ This was an important 
 victory for the Commons, who thenceforth displayed in- 
 creased confidence in asserting their privileges against the 
 arbitrary pretensions of the Crown. 
 
 In the Parliament of 1572 no opposition was shown ; 
 but at its next meeting, in February, 1575-6, a speech Speech of 
 of remarkable boldness in defence of the liberties and S^^^^ 
 
 Wentworth 
 
 privileges of the Commons was delivered by Peter Went- in 1576. 
 worth, Membe r for Tregony, in Cornwall, — a brother or 
 other near _j:elative of the Paul Wentworth who had 
 earlier distinguished himself in the same cause. ' Sweet 
 is the name,' he said, ' of liberty ; but the thing itself a 
 value beyond all inestimable treasure. So much the more 
 it behoveth us to take care lest we, contenting ourselves 
 with the sweetness of the name, lose and forego the thing.' 
 * In the last and preceding session,' he continued, ' I saw 
 the liberty of free speech so much and so many ways 
 infringed, and so many abuses offered to this honourable 
 
 1 D'Ewes, 156, 175, 176. 
 
492 The Tudor Period, [Ch. 
 
 council, as hath much grieved me ; wherefore I do think it 
 expedient to open the commodities that grow to the prince 
 and state by free speech. Without this it is a scorn and 
 mockery to call it a Parliament house ; for in truth it is a 
 school of flattery and dissimulation. Two things do great 
 hurt here : one a rumour which runneth about the House, 
 " Take heed what you do ; the Queen's Majesty liketh not 
 such a matter ; whosoever preferreth it, she will be offended 
 with him." On the contrary, ''Her majesty liketh of such 
 a matter ; whosoever speaketh against it, she will be much 
 offended with him." The other is a message sometimes 
 brought into the House, either of commanding or inhibiting, 
 very injurious to the freedom of speech and consultation. 
 I would to God, Mr. Speaker, that these two were buried 
 in hell ; the King hath no peer or equal in the kingdom ; 
 but he ought to be under God and the law, because 
 the law maketh him a king. A message was brought 
 last session into the House, that we should not deal 
 in any matters of religion, but first to receive from the 
 bishops. Surely this was a doleful message, for it was as 
 much as to say, ye shall not deal in God's causes.' He 
 proceeded to express great indignation at the Queen's 
 refusal to assent to the attainder of Mary of Scotland ; 
 boldly exclaimed, * none is without fault, no, not our noble 
 Queen, but has committed great and dangerous faults to 
 herself ; ' rudely, but withal loyally, accused Her Majesty 
 of ingratitude and unkindness towards her subjects ; and 
 declared that his only object was 'the advancement of 
 God's glory, an honourable sovereign's safety, and a sure 
 defence of this noble isle of England, by maintaining the 
 liberties of this honourable council, the fountain from 
 whence all these do spring.' ^ This direct attack upon the 
 Queen alarmed the House of Commons. They deemed 
 it prudent to anticipate any action from without by seques- 
 tering Wentworth, and appointing a committee of all the 
 
 1 D'Ewes, 236 ; Pari, or Const. Hist, of Eng. to the Restoration, iv. 186. 
 [ist. ed. p. 1751 seq.'\ 
 
xiL] Elizabeth. 493 
 
 Privy Councillors in the House to examine him. On being 
 assured that the committee sat not as councillors but as 
 members of the Commons only, he submitted to their 
 authority, and, on their report to the House, was com- 
 mitted to the Tower. After a month's confinement, the 
 Queen informed the Commons that she had remitted her 
 displeasure against him, and the House, having first exacted 
 an acknowledgment of his. fault upon his knees, released 
 him with a reprimand from the Speaker. 
 
 Twelve years later, Peter Wentworth again suffered im- Mr. Cope's 
 prisonment for his bold resistance to the Queen's interfer- gook'^isSS. 
 ence with the liberty of Parliament. In February, 1587-8, 
 a Mr. Cope submitted to the House of Commons a very 
 sweeping measure of Ecclesiastical reform, consisting of a 
 Bill and a Book. By the Bill it was proposed to annul all 
 laws affecting Ecclesiastical government then in force, and 
 to establish a new form of Common Prayer, which was 
 contained in the Book annexed. The Speaker ineffectually 
 endeavoured to stop the reading of the Bill by alleging the 
 Queen's commands not to meddle in the matter. A day 
 was passed in discussing the question ; but before the next 
 meeting of the House, Her Majesty sent for the Speaker 
 and obtained from him both Bill and Book. As soon as 
 the House reassembled, Peter Wentworth submitted to the 
 Speaker, for the purpose of being read to the House, a 
 series of questions, of which the principal points wer6 : 
 * Whether this House be not a place for any member freely 
 and without controlment of any person, or danger of laws, 
 by bill or speech, to alter any of the griefs of the common- 
 wealth } Whether honour may be, done to God, and 
 benefit and service to the prince and state, without free 
 speech ? Whether there be any councils beside Parliament, 
 which can make, add to, or diminish from, the laws of the 
 realm 1 Whether it be not against the orders of this 
 House to make any secret or matter of weight, here in 
 hand, known to the prince or any other t Whether the 
 Speaker, or any other, may interrupt any member in his 
 speech in this House, or rise when he will, without con- 
 
494 '^^^ Tudor Period, [Ch. 
 
 sent of the House, or overrule the Hous6 ? Whether the 
 
 prince and state can continue, stand, and be maintained, 
 
 without the Parliament, except by altering the government 
 
 of the state ? ' For these queries (which the Speaker 
 
 declined to read to the House), Wentworth was again 
 
 committed to the Tower; a fate which Cope and those 
 
 members who had supported his motion also shared. At 
 
 the dissolution of Parliament, three weeks afterwards, they 
 
 were released.^ 
 
 Parliament At the Opening of the Parliament which met in February, 
 
 0^1593- 1593, the Speaker having made the usual request of liberty 
 
 definidon of ^^ Speech, received for answer : ' Privilege of speech is 
 
 liberty of granted, but you must know what privilege ye have ; not 
 
 ^, g' to speak every one what he listeth, or what cometh into his 
 
 sion question brain to utter ; your privilege is Ay or iW?.'^ On the first 
 
 brought ^^y ^^ ^^^ session the undaunted Peter Wentworth, together 
 
 forward by with Sir Henry Bromley, another member, delivered a 
 
 Peter Went- . . ^ ^ ^ . ^J ' , . . , V . 
 
 worth. petition to the Lord Keeper desiring the Lords to be 
 
 suppliants with the Lower House to her Majesty to entail 
 
 the succession of the Crown, for which they had already 
 
 prepared a Bill. For this boldness they were summoned 
 
 before the Council and committed to prison.^ A few days 
 
 later, Morice, the Attorney of the Court of Wards, intro- 
 
 Billfor duced a Bill to reform the practice of the Ecclesiastical 
 
 Ecclesi- courts, especially in the matter of the oath ex officio. The 
 
 ^r^d^ ^^^I^'^ Queen immediately sent for the Speaker, who on his 
 
 by Morice, return informed the House that * She wondered that any 
 
 the Court °o^f ^^<^"1^ ^e of SO high commandment as to attempt a thing 
 
 Wards. contrary to that which she had so expressly forbidden. 
 
 Her majesty's present charge and command is, that no 
 
 bills touching matters of state, or reformation in causes 
 
 ecclesiastical, be exhibited. And upon my allegiance I am 
 
 commanded, if any such bill be exhibited, not to read it.' 
 
 Not content with this general reprimand, Morice himself 
 
 1 Pari, or Const. Hist. iv. 316; D'Ewes, 410. 
 
 2 Pari, or Const. Hist. iv. 349. 
 
 3 Id, iv. 365. 
 
XII.] Elizabeth, 495 
 
 was arrested in his place, committed to prison, deprived of 
 his office in the Court of Wards, and disabled from prac- 
 tising as a barrister.^ 
 
 The submissiveness with which the majority of the Causes of 
 Commons for so many years bowed to the haughty words gubmStve- 
 and harsh acts of Elizabeth, was due in a great measure ness of the 
 not to ignorance of their unconstitutional character or a 
 lack of spirit to resist, but to a deep conviction of the perils 
 and dangers which threatened the Reformed Church and 
 the national independence, coupled with a firm reliance 
 on the patriotic courage and wisdom of the Queen. For 
 these reasons, during the greater part of her reign, 'the 
 Puritans in the house of Commons, though sometimes 
 mutinous, felt no disposition to array themselves in syste- 
 matic opposition to the Government. But, when the defeat 
 of the Armada, the successful resistance of the United 
 Provinces to the Spanish power, the firm establishment of 
 Henry IV. on the throne of France, and the death of 
 Philip 11. , had secured the State and the Church against 
 all danger from abroad, an obstinate struggle, destined to 
 last through several generations, instantly began at home. 
 It was in the Parliament of 1601 that the opposition which Successful 
 had, during^ forty years, been silently gathering- and hus- ^PP^^^'^^^" *° 
 
 1 r 1 • /- 11, monopolies, 
 
 bandmg strength, fought its first great battle and won its 1601. 
 first victory.' ^ The conflict arose concerning the enormous 
 abuse of Monopolies. Under cover of the loosely defined 
 prerogative possessed or assumed by the Crown of regu- 
 lating all matters relating to commerce, the Queen had 
 taken upon herself to make lavish grants to her courtiers, 
 of patents to deal exclusively in a multitude of articles, 
 mostly common necessaries of life. Coal, leather, salt, 
 oil, vinegar, starch, iron, lead, yarn, glass, and many other 
 commodities were in consequence only to be obtained at 
 ruinous prices. The grievance was first mooted in Parlia- 
 
 1 Pari, or Const. Hist. iv. 396 ; Townsend, 60 ; D'E^Tes, 478 ; Neal, Hist 
 Purit. c. viii. 
 
 - Macaulay, Hist. Eng. i. [62-63]. 
 
496 The Tudor Period, [Ch. 
 
 ment in i57i,by a Mr. Bell : but he was at once summoned 
 before the Council, and returned to the House 'with such 
 an amazed countenance, that it daunted all the rest.'^ 
 After the lapse of twenty-six years the Commons ventured, 
 in 1597, 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 dis- 
 position, promising to ex^ine all patents and to abide 
 the touchstone of the law.' ^ 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 1601, 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.' ^ A 
 Bill 'for the explanation of the common law in certain 
 cases of letters-patent ' was introduced 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 pos- 
 sible, 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 none put in 
 execution, but such as should first have a trial, according 
 to the law, for the good of the people.' Robert Cecil, the 
 secretary, added the more direct assurance that all existing 
 patents should be revoked, and no others granted for the 
 
 ^ D'Ewes, Journal, 159. 
 
 2 D'Ewes, p. 547. 
 
 3 Pari, or Const. Hist. iv. 462. 
 
XII.] Elizabeth. 497 
 
 future. Overjoyed at their victory, the Commons waited 
 upon the Queen with an address of 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.' ^ 
 
 ^ 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 Act for relief 
 statute, 43 Eliz. c. 2, ' An Act for the Relief of the Poor,' which is the foun- of the poor, 
 dation of our modern Poor Law. 1601. 
 
 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 Relief of the 
 said to have indirectly provided for the relief of the poor. In their inception poor^ in 
 tithes were voluntary offerings of the people, made under the belief: — carefully ancient 
 inculcated by the clergy — of the religious duty of every Christian to bestow on times. 
 God's service a tenth part of his goods. /But it was not possible or desirable,' 
 observes Bishop Stubbs (Const. Hist, i. 228), ''to enforce* this duty 'by 
 spiritual penalties : nor was the actual expenditure determined except by cus- 
 tom, or by the will of the bishop, who usually diyided it between the church, 
 the clergy, and the poor. . . . The recognition of the /^^a/ 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 Tithes, 
 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 
 
 * [Hard wick, Church Hist. Middle Age, p. 243, shews both the unpopu- 
 larity of Legates in England and the constant and careful limitation of their 
 powers. Robertson, //ij/. Christ. C/z«rr/!, shews their unpopularity in England, 
 vi. p. 200 : describes the visit of the Legates in 785, ' the first, as they 
 said, who had been sent into England since the time of Augustine,' and 
 the Councils held 'in their presence ' in Mercia and Northumbria, iii. 180; 
 shews that the visits of Papal Legates to England had been ' very rare, ' 
 and that 'their authority had been limited to special business,' in connec- 
 tion with the visit of the Abp. of Vienne, afterwards Pope Calixtus XL, in 
 HOC, 'a few months after Anselm's return from his first exile,' and relates 
 protests made through William of Warelwast, Bp. of Exeter, and prohibition 
 of landing of a Legate in England, t. Hen. I., v. 20. It may not be easy to 
 settle the exact position of the Councils held 785-7 ' in the presence of both 
 Kings and Legates. Like some of the early Spanish Councils, they appear to 
 have partaken of a mixed character, partly spiritual and partly temporal. In 
 such cases the best doctrine would seem to be that the spiritual decrees pro- 
 duce a purely spiritual eff"ect, and the temporal decrees a purely temporal 
 effect.— Ed. ] 
 
498 
 
 The Tudor Period. 
 
 [Cir. 
 
 Privileges of The reviving independence of the House of Commons 
 vindicated! under the Tudor sovereigns, especially during the reign 
 
 Indiscrimin- 
 ate alms- 
 giving of the 
 clergy. 
 
 Edw. IIL's 
 statute of 
 Labourers : 
 
 Almsgiving 
 to the able- 
 bodied for- 
 bidden. 
 
 Begging 
 regulated by 
 statute 12 
 Richard II. 
 
 Hen. VIII.' s 
 
 Poor Laws, 
 
 22 Henry 
 VriL c. 12. 
 
 27 Henry 
 VI H. c. 25. 
 
 Suppression 
 of the mon- 
 asteries. 
 
 Statute 43 
 Eliz. c. 2, 
 1 60 1, the 
 basis of 
 modern poor- 
 laws. 
 
 Law of \ 
 
 Settleme. 
 
 \ 
 
 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 
 remaining third to the poor. It was not until the council held in a.u. 1200 
 that the principle of the prior claim of the parochial clergy on tithes was sum- 
 marily stated (Stubbs, Const. Hist. i. 229). In the Mirror of Justice (c. i, 
 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 sus- 
 tenance,' but the duty was one of imperfect obligation, there being no compul- 
 sory 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 unfor- 
 tunately * the blind eleemosynary spirit ' which led them to practise and incul- 
 cate 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. 314) it was fokbidden 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 imprisomntnt. By 
 the 12 Richard II. begging was permitted, subject to regulations,— ^s^tificates 
 might be given to poor men and women authorising 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., c. 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 authorised to 
 give licences to *aged poor and impotent persons ' to beg within certain pre- 
 scribed districts, but licensed beggars transgressing their limits, and all un- 
 licensed 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 whip- 
 ping for the first offence, loss of an ear for the second, and hanging for the 
 third. By the same Act indiscriminate almsgiving 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 Edward 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 taxation 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 churchwardens, and from two to four 
 substantial householders nominated yearly by two justices of the neighbour- 
 hood. The rate was to be applied by the overseers (i) 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 unwill- 
 
xiL] " Elizabeth. 499 
 
 of Elizabeth, is further evidenced in the care with which 
 the peculiar privileges and immunities of Parliament were 
 
 ing 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 I to 3 years). But there was nothing to prevent able-bodied and 
 industrious paupers from resorting to any parish that, they pleased for employ- 
 ment ; and the irregular and imperfect 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 regulated. 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 churchwardens 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 Adininistra- 
 century under the uncontrolled management of the overseers, who, in too tion of poor 
 many instances, proved quite unequal to the duty of effectively working the relief. 
 Act. 
 
 In 1723, by 9 Geo. I. c. 7, churchwardens and overseers of parishes were Statute 
 empowered, with the consent of the vestry, to purchase or hire houses, or to 9 Geo. I. c. 7. 
 contract with any person, for the lodging and employment of the poor ; three 1723. 
 small parishes were permitted to unite in establishing a single workhouse ; and 
 it was declared that such persons as declined to submit to the lodging provided 
 for them should not be entitled to any relief. In 1782 Mr. Davies Gilbert's Act Gilbert'' s Act, 
 {zz Geo. III. c. 83) authorised parishes in which the adoption of the Act 22 Geo. III. 
 should be agreed upon by two-thirds in number and value of the owners and c. 83. 
 occupiers, to appoint guardians to act in place of overseers of the poor; and 1782. 
 also to enter into voluntary unions with each other for the accommodation. Select Vestry 
 employment, and maintenance of their paupers. In 18 19 the Act 59 Geo. ^^^ eg q^^ 
 III. c. 12, empowered the vestry of any parish to commit the management oi jjj^ ^^ j2. 
 its poor to a committee of substantial householders, termed a select vestry, to igi'o. ' 
 whose directions the overseers should be bound to conform. 
 
 Both the Gilbert Act and the Select Vestry Act being permissive only and Ignorant 
 not compulsory, the relief of the poor in the great majority of parishes continued adininistra- 
 to be administered by the overseers. Under their ignorant administration the tion of the 
 wise and simple provisions of the law for the relief of the poor gradually /^^a'-Z^zc;; 
 assumed the proportions of a gigantic national evil. ' The industrial popula- its disastrous 
 tion of the whole country,' observes Sir Erskine May (Const. Hist. iii. 405), effects. 
 * 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.' 
 
 At length, in_i 834, on the recommendation of a Royal Commission appointed Poor-law 
 at the request of Tarfiament in the preceding year, to enquire into the state Amendment 
 and administration of the laws relating to the poor, was passed the imoortant Act, 1834. 
 'Poor Law Amendment Act,' 4 & 5 Will. IV. c. 76. '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 
 
500 The Ticdor Period. [Ch. 
 
 from time to time vindicated. The cases of Ferrers in 
 1543, and of Smalley in 1575, (relating to the freedom 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 determine contested elections)^ 
 have been already considered in treating of the three prin- 
 cipal privileges of the Commons.^ But there was another 
 species of privilege, relating to the internal discipline of the 
 House, — the power to punish offences agamstthe established 
 order committed by any of themselves^r^which though ap- 
 parently at all times an essential attribut^Jof any assembly 
 enjoying the right of free debate, first begins to attract 
 attention during the Tudor period. 
 Storie's case, The JouHial of the Commons records, under the date 
 ^^^^' 2 1st January, 1547-8, that John Storie, one of the bur- 
 
 gesses, was ordered to be committed to the custody of the 
 
 T/ie work' ^^ suited better than out-door relief. Now out-door relief was to be withdrawn 
 house test' for altogether from the able-bodied, whose wants were to be tested by their will- 
 able-bodied i^gi^^ss to enter the workhouse. This experiment had already been success- 
 i)Oor ^"^^y *"^^ ^^ ^ ^^^ well-ordered parishes, and was now generally adopted. 
 
 ^ ' But instead of continuing ill-regulated parish workhouses, several parishes 
 
 were united, and union workhouses estabhshed common to them all. The 
 local administration of the poor was placed under_ekcted.boards n J f guardians ;. 
 and its general superintendence under a central Board of Commissioners in 
 Poor Laio London.' (May, Const. Hist. iii. 407.) The 'Poor Law Commissioners,' 
 Commis' ^^'^ appointed for five years, but the duration of the Commission was after- 
 sioners ' wards extended from time to time till 1847, when, by statute 10 & ii Vict. 
 i8ld ' ^' ^^^9' ^^ ^^^ superseded by a new Commission, afterwards known as the 
 
 *'^* ' Poor Law Board,' consisting of the Lord President of the Council, Lord 
 
 Poor Law ]>rivy Seal, Home Secretary, and Chancellor of the Exchequer for the lime 
 Board, 1847. 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 
 Local powers transferred to a new body called the ' Local Government Board' (in 
 
 Government which was concentrated the supervision of the laws relating to the public 
 Board 1871. 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 Presi- 
 dent 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 ihe 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 
 organisation of private charity, working in independent but h?rmonious corre- 
 lation with the public system, 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. 
 
 1 Supra, pp. 344-5. 35 1- 
 
XII.] Elizabeth, 501 
 
 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 sub- 
 mission ; 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 Thomas Copley, member Copley's 
 for Gatton, was committed by the House to the custody of '^'^^^' ^558- 
 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.^ 
 
 The next case is more important, constituting as it Hairs case, 
 does the leading precedent, so far as records show, for the ^^ ^* . 
 power of the House to expel a member. Arthur Hall, a a member, 
 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 mem- 
 bers 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, v/hen he was ordered 
 to appear at the bar * to answer for sundry lewd speeches, 
 
 1 Hallam, Const. Hist. i. 272. 
 
 \ 
 
502 The Tudor Period. [Ch. 
 
 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.^ 
 Dr. Parry's The right of expulsion was again exercised by the Com- 
 case, 1585. mons in 1585, against WiUiam Parry, D.C.L., a burgess 
 for Queenborough, for denouncing as cruel and bloody the 
 Bill to inflict the penalty of death on Jesuits and seminary 
 priests ; and so tenacious were they of their dignity, that in 
 Bland: s case, the following year they caused a poor currier named Bland, 
 ^^ ^' on account of contemptuous words uttered against the 
 
 House, to be brought to their bar, whence he was dis- 
 charged only on making submission and paying a fine of 
 Bribery at twenty shillings.^ It was in the reign of Elizabeth also, that, 
 elections ^^ earliest precedent occurs for the punishment of bribery 
 
 punished. r r j 
 
 Long's case, ^^ elections. In 1 571, the House inflicted a fine upon the 
 1571- borou gh of W est_bury for receiving a bribe of four pounds 
 
 from Thomas Lo ng^ thejVlember 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 ex- 
 pelled or otherwise punished.^ 
 Commons In 1 593 an attempt was made by the Lords to encroach 
 
 '^^^a//^'^^^ upon the Commons' privilege of originating Money Bills. 
 originate A message was sent from the Upper House referring to 
 j-ggf ^ ^* the Queen's want of a supply, and requesting that a com- 
 mittee 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 
 
 ^ D'Ewes, 291 ; Hallam, Const. Hist. i. 273. In addition to the misconduct 
 mentioned in the text, Hall was suspected of being privy to the fraud committed 
 by his servant Smalley in 1575 : see supra, p. 345. 
 
 * D'Ewes, 366; Hallam, Const. Hist. i. 274. 
 
 ' Commons' Journals, p. 88. 
 
XII.] Elizabeth. 503 
 
 Robert Cecil was instructed to report from the committee 
 that the Lords would not consent 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.^ 
 
 Notwithstanding the arbitrary practice of Elizabeth's The Con- 
 government, and the submissive and adulatory strain in though fre- 
 
 which she v/as always addressed by the Commons, it is q}ieiitly 
 
 , 1 1 /- 1 ^ • • 1 violated in 
 
 evident that the theory of the Constitution, as a monarchy practice, 
 
 greatly limited by law, remained intact. The facts already [h^o^SSally 
 cited might be regarded as sufficient proof of this asser- intact. 
 tion, but it is supported by still further evidence of much 
 weight. 
 
 In the * Harborowe of True and Faithful Subjects,' pub- Aylmer's 
 lished in 1559 by Aylmer, afterwards Bishop of London, ^^^^j^^^J^ 
 in answer to John Knox's celebrated treatise against female Faithful 
 monarchy entitled *A blast of the Trumpet against the 1559. 
 Monstrous Regiment of Women,' ^ the author thus enu- 
 merates his reasons why, in England, * it was not so dan- 
 gerous 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. 
 
 1 D'Ewes, 486 ; Hallam, Const. Hist. i. 276. 
 
 2 Knox's * Blast ' was written in the time of Queen Mary and directed against 
 her, but it was of course equally applicable to lier sister Elizabeth. 
 
504 
 
 The Tudor Period. 
 
 [Ch. 
 
 Onslow's 
 address to 
 the Queen. 
 1566. 
 
 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 l^^^s^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 
 peradventure make me to fear the matter the more, and 
 the less to defend the cause/ ^ 
 Mr. Speaker Again, in 1 566, Mr. Onslow, then Solicitor-general and 
 Speaker of the Commons, addressing Queen Elizabeth at 
 the conclusion of the session said : ' By our common law, 
 although there be for the prince provided 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 quietly to suffer his sub- 
 jects to enjoy their own, without wrongful oppression ; 
 wherein other princes by their liberty do take as pleaseth 
 them.' 2 
 
 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 abrogated ; 
 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 t7'ibunitiis 
 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 particular person is 
 intended to be present, if not by himself, yet by his advo- 
 cate or attorney. For this cause also, anything there 
 
 Harrison's 
 Description 
 of England. 
 1577- 
 
 1 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. 
 
 2 D'Ewcs, p. 115. 
 
XII.] Elizabeth, 505 
 
 enacted is not to be misliked, but obeyed by all men with- 
 out contradiction or grudge.' ^ 
 
 That the same theory of the Constitution prevailed in Hooker's 
 the later period of Elizabeth's reign is evidenced by the ^^/^^/^Vy. 
 words of the judicious Hooker in his ' Ecclesiastical Polity.'^ 
 
 * I cannot choose/ he says, * but commend highly their 
 wisdom, by whom the foundations of this commonwealth 
 have been laid ; wherein, though no manner 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 regent " — the king's 
 grant of any favour made contrary to the law is void ; — 
 '^ Rex nihil potest nisi quod jure potesty . . . 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 thereof, the highest in authority over all, causeth, 
 according 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.' ^ 
 
 Similar views of the Constitution — vaguely and somewhat sir Thomas 
 timidly expressed it is true — are found in the * Common- ^^f^^^^ 
 wealth of England ' of Sir Thomas Smith, one of Elizabeth's wealth. 
 Secretaries of State.* 
 
 ^ Harrison's Description of England, cited by Brodie, Hist. Brit. Em p. 
 - [On Hooker, his intellectual characteristics, and the influence exercised by 
 his great work, see Gardiner, Hist. Eng., 1 603-1642, i. 39-41, where the 
 
 • more than theological significance ' of the book is noted. ' It was the sign of 
 the reunion of Protestantism with the new learning of the Renaissance. . . . 
 Religion began to partake of the many-sidedness of the world around it, and 
 Hooker was a worthy peer of Spenser and of Shakespeare.' — Ed.] 
 
 3 Hooker, Ecclesiastical Polity, bk. viii. [c. ii. 13]. 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. This work was not published till 
 1589, twelve years after the author's death. 
 
5o6 The TMdo7' Period. [Ch. xii. 
 
 On the other hand a novel theory — utterly unknown to 
 the ancient English Constitution — of an absolute and para- 
 mount 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 Stuart 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. 
 
 [Interesting illustrations of social life, and of the position both of 
 Recusants and of the Puritan party under Elizabeth, will be found in the 
 Journ. Derby sh. Arch. Soc, 1885, in a Paper on the Fitzherberts of Norbury, 
 by Rev. J. C. Cox, and in the Yorksh. Arch, and Top. Journ., 1884, in a 
 history of the Stapeltons of Yorkshire, by H. E. Chetwynd-Stapylton. In 
 the brief chapter devoted to Elizabeth by M. Glasson, Hist, du Dr. et des 
 Inst. Pol. de tAngl., v. 36-47, readers unfamiliar with mediaeval history might 
 be led to suppose that the term Anglican Church, or Church of England, was 
 a post-Reformation invention, instead of being, as the Reformation Statutes of 
 Henry VIII. recognise, the regular mediaeval designation in use in the most 
 formal documents, e.g.. Magna Charta. And in explaining the Thirty- Nine 
 Articles, M. Glasson certainly uses language open to grave misconstruction, 
 in saying that the English King, under these Articles, takes the place of the 
 Pope, and is " aussi puissant pour decider du dogme, pour faire administrer 
 les sacrements, pour conferer a d'autres la puissance spirituelle, que I'ait 
 jamais ete le pontife romain lui-meme " {op. cit. v. 39, 40, w. ). But 
 Art. xxxvii. explicitly denies to Princes "the ministering either of God's 
 Word, or of the Sacraments," and Article xxxvi. expressly approves the Ordinal 
 set forth under Edw. VI, The Conge d'elire, which may possibly have misled 
 M. Glasson, is itself a witness, however imperfectly, to the persistency of the 
 doctrine of Magna Charta, ' quod Anglicana Ecclesia libera sit, et habeat jura sua 
 integra, et libertates suas illaesas.' Gardiner, Hist. Eng. 1603-1642, i. 41-43, 
 has some striking remarks on the position of affairs during the last years of 
 Elizabeth's reign, and at its close. ' Those last fifteen years of Elizabeth,' he 
 says, * in truth were years in which many opposing elements were being fused 
 together into harmonious co-operation. The work of the Tudors had been to 
 complete the edifice of national independence by nationalising the Church. 
 In the course of the arduous struggle they had claimed and had obtained 
 powers greater than those possessed by any former English kings. The very 
 success which they had attained rendered those powers unnecessary. The 
 institutions established by them had outlived their purpose. ... As Elizabeth 
 grew old it was generally felt that great changes were impending. She herself 
 knew that it must be so. . . . She had cleared the way for liberty, though she 
 understood it not.' — Ed.] 
 
507 
 
 CHAPTER XIII. 
 
 THE STUART PERIOD. (1603-1688.) 
 
 I. FROM THE ACCESSION OF JaMES I. TO THE PASSING 
 OF THE PETITION OF RIGHT. 
 
 James I. came to the English throne at a critical period James I. 
 of our history. The reactionary movement towards des- Tendency of 
 potism, which began under Henry VI., reached its cHmax political and 
 under Henry VI 1 1., and had since been slowly receding thought at 
 before the reviving spirit of freedom. During the latter ^}^ ^^^^^' 
 years of Elizabeth the Puritan party had become organised rpj^^ Puritan 
 and powerful. Whilst the old Queen lived, they were, for party. 
 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 h-er successor, in the 
 expectation of voluntary 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 Par- 
 liament, 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 
 
 ^ [This cannot be accepted as an accurate statement of the Ecclesiastical 
 position, considering the public defence of the Presbyterian system by Cart- 
 wright, while holding office as Professor of Divinity in the University of 
 Cambridge, which was naturally regarded as a public challenge by Whitgift, 
 then Archbishop of Canterbury. And, as a matter of fact, adherents of the 
 Presbyterian system had been imprisoned both at Oxford and Cambridge 
 by Grindal. It is impossible to question the fact that a distinct Presbyterian 
 party had taken shape in England during the latter part of Elizabeth's reign, 
 and that no mere concessions on Ritual matters could or would have satisfied 
 it. Gardiner, Jlisi. Eng. 1603-1642, i. c. i, especially pp. 22, 23, and 26, is 
 very clear on these points, and equally strong in his assertion of the im- 
 possibility of England, as a Nation, ever embracing Presbyterianism. — Ed.] 
 
5o8 The Stuart Period. [Ch. 
 
 have been fully satisfied with a dispensation from certain 
 ceremonies which too forcibly reminded them of the religion 
 they had renounced. The Presbyterian education of James 
 Effect of had led them to anticipate a ready acquiescence in such a 
 b^terkrT'^^^" "^<^<^G^^te measure of reform. But the King's experience of 
 education, 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 ambition, had converted the pulpit into 
 a theatre for political declamation ; and James had imbibed 
 the bitterest hostility to everything which approached to 
 the Presbyterian form of ecclesiastical establishment, de- 
 claring that under it Jack and Tom and Dick and Will 
 presumed to instruct him in affairs of state.' ^ 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 ordinary 
 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.^ 
 His political The avowed antipathy of James to every kind of Pro- 
 Noifconfor-^ testant Nonconformity, was based on political, rather than 
 mity. on religious, reasoning. ' The Presbytery,' he said, * agreeth 
 
 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 
 
 ^ Brodie, Hist. Brit. Emp. i. 332. 
 
 ^ [For a fairer estimate of James's power, see Gardiner, who says, Hist. 
 Eng. 1603-1642, i. 48-9, ' His mental powers were of no common order ; his 
 memory was good, and his learning, especially on theological points, was by 
 no means contemptible. He was intellectually tolerant, anxious to be at 
 peace with those whose opinions differed from his own. He was above all 
 things eager to be a reconciler, to make peace where there had been war 
 before, and to draw those to live in harmony who had hitherto glared at one 
 another in mutual defiance. He was penetrated with a strong sense of the 
 evil of fanaticism.' That 'these merits were marred by grave defects,' the 
 history of his reign in England sufficiently shews. — Ed.] 
 
XIII.] James L to Petition of Right. 509 
 
 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.^ 
 
 While sternly repressing the nonconforming Protestants, 
 James at the same time shewed an inclination to grant 
 some partial indulgence to the Roman Catholics, — a policy 
 which excited disgust and jealousy throughout the king- 
 dom, and thus strengthened the hands of the Puritan 
 faction.^ 
 ' ^w^.--^ - yVUir^"- 
 
 1 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 looo 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 discipline.' In 
 order to obtain further information on the points in dispute, James summoned 
 the famous conference at Hampton Court between the Archbishop of Canter- 
 bury, eight Bishops, five Deans and two Doctors on the one side, and Dr. Rey- 
 nolds and three other Puritan divines on the other. At the conference, which 
 was held before the King on the 14th, 15th, and i6th of January, 1603-4, 
 instead of acting as moderator, James, eager to display 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 committed to prison, 'the judges having declared in 
 the star chamber that it was an offence fineable at discretion, and very near to 
 treason and felony, as it tended to sedition and rebellion.' Hallam, Const. 
 Hist. i. 298. [The facts concerning the so-called Millenary Petition have been 
 much in dispute. Fuller's assertion, Church Hist., v. 265, that it only had 
 750 signatures, is criticised by Gardiner, Hist. Eng. 1603-1642, i. 148, who says, 
 'the fact seems to have been that there were no signatures at all to it,' basing 
 on the assertion of the Petitioners themselves in a subsequent Defence of the 
 Petition, Brit. Mus. Add. MS. 8978, * Neither before were any hands required 
 to it, but only consent.' This seems clear on that point. As to the number 
 of those who signified their consent, the Petitioners were probably not unwilling 
 to magnify it. Gardiner notes that the Petition was ' very different from 
 those which had been drawn up early in Elizabeth's reign, in which the 
 abolition of Episcopacy and the compulsory introduction of Presbyterianism 
 had been demanded,' but at the same time remarks that the * demands could 
 not, of course, be granted as they stood.' — Ed.] 
 
 3 James soon found it necessary, in order to free himself from the imputation 
 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, 
 
5IO 
 
 The Stuart Period. [Ch. 
 
 Arbitrary The Civil government of James was noJess impolitic and 
 
 ai?i^go°Jera- arbitrary than his Ecclesiastical. At a time when the 
 ment. growing spirit of freedom, the general diffusion of know- 
 
 ledge, and the revived study of Greek and Roman authors ^ 
 had caused a Republican tendency to manifest 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 English people, — was 
 constantly asserting, in the most offensive form, the novel 
 *and monstrous theory of his Divine right to absoIuTeand 
 Theory of irresponsible sovereignty. The doctrine had already been 
 DJyine advanced by him some years before in Scotland, in a 
 treatise on the 'True Law of Free Monarchies.'^ Adopted 
 by the Hierarchy* and the courtiers, the theory of Divine 
 Right was later on elaborated into a system by Filmer,^ and 
 
 Right. 
 
 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. c. 2 and c. 6.) 
 
 ^ 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 dam- 
 nosius posse, quam permittere ut hujusmodi libri publice doceantur, nisi simul 
 a magistris sapientibus quibus venenum corrigi possit remedia appHcentur. 
 Morbum hunc comparari libet cum hydrophobia,' &c. 
 
 " [Reference has already been made, sub Hen. VIII. 's reign, to Bailey's 
 Succession to the English Crown, for a more guarded expression of the force 
 of this alleged testamentary settlement of the Crown, which should be 
 balanced against this very decided, and it is believed, too decided, ex- 
 pression. — Ed.] 
 
 "* King James's' Works, p. 207. 
 
 ** 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 excom- 
 municated 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, ahd inculcate the duty of passive 
 obedience to the King, in all cases without exception. 
 
 ^ 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 nfhn 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.' 
 
XIII.] James /. to Petition of Right, 511 
 
 became the distinctive badge of the more violent High- ^ 
 churchmen and Tories. ' It was gravely maintained that ' j 
 the Supreme Being regarded hereditary monarchy, as op- 
 posed 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 posses- 
 sion, though it extended to ten centuries, could deprive a 
 legitimate prince of his rights ; that the authority of such 
 a prince was necessarily always despotic ; that the laws, by 1 
 which, in England and in other countries, the prerogative 
 was limited, were to be regarded 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 not a contract of which the perform- 
 ance could be demanded.' ^ 
 
 Such being the ideas of the King on Regal government, A conflict 
 it was inevitable that he should speedily come into conflict House^of 
 with the House of Commons, a body fully aware of its Commons 
 ancient rights and privileges, impressed with the duty of 
 asserting and maintaining them, and strong in the con- 
 sciousness that it represented the feelings and wishes of the 
 great majority of all classes of the nation.^ 
 
 ^ Macaulay, Hist. Eng. i. [71]. The sublime pretensions of James were ren- 
 dered ludicrous, as well as irritating, by the contemptible demeanour of the 
 King himself. Cf. Green, Short Hist, of Eng. People, pp. 464, 467. [As it 
 is not contended that James created himself, animadversions on his accent, 
 manners, and temperament, seem to be beside the mark. His notions of the 
 Divine Right were either true or false, but they clearly cannot be allowed to 
 stand or fall with the accidents of his external appearance. — Ed.] 
 
 2 Towards the end of the i6th, and during the earlier part of the 17th 
 century, the House of Commons included among its members a large bcdy 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 were incal- 
 culable. The learning of the ablest lawyers in the i6th 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 
 
512 The Stuart Period. [Ch. 
 
 James is the The Very first acts of James's reign were ominous of the 
 aggressor. ^iX^txtxdLxy 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 formahty of 
 a trial j^ and in the Proclamation summoning his first 
 Parliament he was guilty of a daring infringement upon 
 the privileges and independence of the House of Com- 
 mons. 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.' " 
 First Par- James' first Parliament met on the 19th March, 1603-4. 
 hament, j^ ^^^ |-^j^ ^j^^^. ^ struggle with the Crown was at hand. 
 Session/. So large was the attendance of Members in their places 
 March 19th- ^j^^t 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 abro- 
 gated, by any other power than that of the high court of 
 
 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. Irom 1603 to 
 1616, i. 178. 
 
 1 '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 ? ' — Nugse Antiquse, 
 i. 180. [Proof of this alleged execution would be desirable. — Ed. J 
 
 2 Pari. Hist. i. 967. [This action, however wrong and inde^^ensible in itself, 
 was no innovation on the practice of recent English governments, except as 
 regards Chancery. Gardiner, Hist. Eng. 1603-1642, i. 163, shews from the 
 Egerton Papers, 384, that of the ' two sets of notes for the proclamation,' it is 
 that in Lord Chancellor Ellesmere's hand which 'alone contains the direction 
 for the reference of disputed elections to Chancery, showing that this assump- 
 tion originated with him.' Motives of personal arbitrariness do not seem 
 fairly imputable to a King when he is found to have been following the advice 
 of his Chancellor.— Ed.] 
 
 3 [Sir Edward Phelips, the Speaker, 1st Pari. Jac, and who had filled the 
 same office /. Eliz., as well as the high Judicial post of Master of the Rolls, was 
 fourth son of Thomas Phelips, Esq., of Barrington and Montacute, co. Somer- 
 set, and father of Sir Robert Phelips, M.P. for Somersetshire, /. Car., sent to 
 the Tower, 1621-2 {post, p. 553). The Baronetcy of Phelips of Barrington 
 became extinct 1690. Cf. Burke, Gen. Armory^ 1878. — Ed. J 
 
XIIL] James I. to Petition of Right. 513 
 
 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 frus- 
 trate, 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 their exclusive right to determine contested elections, commons 
 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 legislative 
 recognition.^ 
 
 During a long and stormy session the Commons freely Complaints 
 discussed their various grievances ; the ancient abuse of ances. 
 purveyance, which, notwithstanding thirty-six restraining 
 statutes, still flourished with scarcely diminished vigour ; 
 the hardships of feudal guardianship 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 protes- 
 tation of their rights and liberties, drawn up by a Com- 
 mittee of the House, and entitled * A Form of Apology Commons' 
 and Satisfaction to be delivered to his Majesty! In this S^heir pro- 
 important Constitutional document the Commons com- ceedings. 
 mence by expressing a desire to justify their own conduct 
 and to remove from the King's mind certain misinforma- 
 tions 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 
 
 ^ See the cases of Sir Thomas Shirley, and of Goodwin and Fortescue, 
 supra, pp. 346, 352. During the discussion 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.' 
 
 C.H. L L 
 
514 The Stuart Period. [Ch. 
 
 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 
 
 Assertion of therein of the rights and liberties of the whole Commons of 
 
 Commons in ^^^ realm of England, which they and their ancestors from 
 
 Form of time immemorial have undoubtedly enjoyed,' they protest, 
 
 \^Z-A' ^^^ ^^ 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 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 
 
XIII.] James /. to Petition of Right. 5 ^ 5 
 
 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 impeach 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, con- 
 trarywise in this Parliament, 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 complaint. ' For matter of religion,' they assure his 
 Majesty that he would be misinformed 'if any man should 
 deliver that the kings of England have any absolute power 
 in themselves, either to alter religion, (which God forefend 
 should be in the power of any mortal man whatsoever,) or 
 to make any laws concerning the same, otherwise than, as 
 in temporal causes, by consent of Parliament.' 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 ^ 
 spirit to introduce their parity, or to work the subversion 
 of the State ecclesiastical as it now stands, things so far and 
 so clear from our meaning 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 accord- 
 ing to the ancient and long-continued use of Parliaments, 
 as by many records from time to time appeareth, we came 
 
 ^ 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 ['no doubt,' says Blunt, Did. Sects, &c.,] those afterwards held by the 
 Independents. [To same effect, Gardiner, Hist. Eng. 1603-1642, i. 37. The 
 passage as to powers to make laws concerning religion, Gardiner takes. Ibid., 
 183, to refer to the Canons of 1604. — Ed.] 
 
 L L 2 
 
5i6 The Stuart Period. [Ch. 
 
 with another spirit, even with the spirit' of peace ; we dis- 
 puted not of matters of faith and doctrine, our desire was 
 peace only, and our device of unity, how this lamentable 
 and long-lasting dissension amongst the ministers (from 
 which both atheism, sects, and ill-life have received such 
 encouragement and so dangerous increase) might at length, 
 before help come 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 enacted as by relin- 
 quishment of some few ceremonies of small importance, or 
 by any way better, a perpetual uniformity 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 infor- 
 mation 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 
 information from your Commons in Parliament, as well of 
 the abuses in the Church as in the Civil State and Govern- 
 ment. 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 all they can do and have.' ^ 
 
 ^ Pari. Hist. i. 1030, and State Papers, Dcm. viii. 70 [1603-10, p. 122. 
 Gardiner, Hist. Eng. 1603-42, i. 183-5.— Ed.] 
 
XIII. ] James I. to Petition of Right. 5^7 
 
 In tjhis free and outspoken yet thoroughly conservative 
 and monarchical address, the Commons of England, at the 
 commencement of their conflict for liberty with the House 
 of Stuart, took up the position which they resolutely 
 maintained during eighty-four long and stormy years. 
 ' To understand this Apology,' remarks Mr. S. R. 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 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.' ^ 
 
 Duriner the next two sessions of Parliament (January ^^'^^^^°'^i„ 
 
 w • J J a«o III. 
 
 2ist, 1605-6, to May 27th ; and November i8th, 1606, to 1605-6, 
 July 4, 1607) constant bickerings occurred between the J^"' ^^ ~^^y 
 King and the Commons, but unmarked by any very deci- Nov. 18 
 sive assertion of Prerogative on the one hand or of Privilege J" ^ 4» i o/- 
 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 purvey- 
 ance which the Commons sent up to them very shortly 
 after they had thrown out a previous Bill to the same 
 effect. In the session of 1607 the Commons, at the King's Expulsion of 
 request, expelled and imprisoned one of their members, pher iMgott. 
 Sir Christopher Pigott^ (who had been chosen for Bucking- [1607.] 
 hamshire 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 
 
 1 S. R. Gardiner, Hist. Eng. (1603-1616), i. 208. [The words after 
 
 * dignity ' are absent in Gardiner, Hist. Eng. 1603-42, i. 183. — Ed.] 
 
 3 [Hence, ' Pigotts,' = slanderers of the Scots. Gf. N. ^ Q., 7th S. ix. 
 6S,47S,s. V. 'Piggot.'— Ed.] 
 
5i8 
 
 The Stuart Period. 
 
 [Ch. 
 
 their privileges. Three days after the speech had been 
 uttered, the King sent them a message * how much he did 
 misHke and tax the neglect of the House, in that the 
 speech was not interrupted in the instant and the part}- 
 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 the King had just cause to complain, and, after resolv- 
 ing 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.^ During both sessions the 
 principal subject of discussion was James's favourite, but 
 England and premature, scheme for a perfect union between England 
 and Scotland, so that all his subjects might enjoy the same 
 rights and be amenable to the same laws. But the propo- 
 sition 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. I.) by which all hostile laws between the two 
 kingdoms, extending from the 7th Richard H. (1383) to the 
 reign of Elizabeth, were repealed.^ 
 
 Proposed 
 
 union 
 
 between 
 
 The Post- 
 nati. Cal- 
 vin's case, 
 1608- 
 
 ^ Com. Journ. i. 335. [Though committed to the Tower, he was released 
 within a fortnight. Gardiner, Hist. Eng. 1603-42, i. 330. — Ed.] 
 
 2 The King was anxious to have a declaratory Act pronouncing that the 
 union of the crowns had effected a mutual naturalisation 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-natty 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 Robert Calvin \rect^ Colville, see n. post. 
 — Ed.], 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 England. It was held by twelve Judges out of fourteen, in the Exchequer 
 Chamber, that the Scotch post-nattts was a natural-born subject of the King of 
 England. — Calvin^ s case, 2 St. Tr. 559, 7 Jac. I., 1608. [Cf. Denman's Broom's 
 Const. LaWy 1885, pp. 4-56. In Dr. Broom's note. Lord Bacon is cited as 
 holding Calvin'' s case to be one ' of exceeding great consequence. ' But much 
 of its doctrinal importance has been swept away by the Naturalisation Act, 1870. 
 Gardiner, Hist. Eng. 1603-1642, i. 355, states that he was a grandson of 
 Lord Colville of Culross. There would seem to be no doubt that the name is 
 
XIII.] James I. to Petition of Right. 519 
 
 Offended at the Commons' bold assertion of their privi- Parliament 
 leges and constant complaints of grievances, James allowed moned from 
 an interval of two years and a half to elapse without meeting J^o;, July4. 
 his Parliament. In want of money, but unwilling to apply 1609-10. ' 
 for a legislative grant, he had recourse to the unconstitu- 
 tional expedient of increasing the duty on imports by his Illegal 
 own sole authority. In 1606 the King had directed the i^^P^er-''"' 
 collectors of customs to demand a duty of 5^. per cwt. on chandise. 
 all currants imported, in addition to the 2s. 6d. granted by 
 the statute of tonnage and poundage. John Bates, a mer- Bates's case, 
 chant of the Levant Company, refused to pay the additional ^^}% * ^^f^ 
 
 ■ JT • of Impost - 
 
 impost, alleging that it was illegal without the authority oitiotis') 1606. 
 ParHament. An information was exhibited against him 
 in the Court of Exchequer, and a unanimous decision of 
 the four Barons was soon given for the Crown. But the 
 language of Chief Baron Fleming and Baron Clark (the 
 
 erroneously written Calvin in the English reports. Gardiner himself writes 
 it * Colvill,' and accounts for the error by saying that the name is ' frequently 
 written Colvin,' presumably in Scotland. The genealogical accounts under 
 the title in Burke's Peerage, 1890, and Anderson's Scottish N^ation, Edinb., 
 Fullarton, 1865-6, vary considerably in detail both as to the issue of the first 
 and second Lords Colville of Culross, and as to the date of the creation, which 
 last Burke gives as 10 Mar., 1604, but Anderson as late as 20 Jan., 1609. 
 While this title, under the Decreet of Ranking, 1606, stood next before Scone, 
 or Scoon, variously stated by Burke as cr. 1605 and 1608, it would seem that 
 in 1723 it was placed after Cardross, cr. either by Ch., 1606, or by Pari, ratifi- 
 cation, 1610, and before Cranstoun, cr. 1609, which seems to lead to 1608 for 
 Scone and 1606 for Cardross. There is, however, no room for a Robert Col- 
 ville as grandson of Sir James Colville of Easter Wemyss, ist Lord Colville 
 of Culross, in the pedigree as given either by Burke or Anderson ; Robert, 
 Master of Colville, who died v. p., 16 15, having been apparently father of an 
 only son, James, 2nd Lord, stated by Burke to have been father of William, 
 3rd Lord, and James, 4th Lord, but by Anderson alleged to have died in 1640, 
 s.p. In an interesting local history, Culross and Tulliallan, by D. Beveridge, 
 Edinb., Blackwood, 1885, it is stated, i. 182, on the authority of researches by 
 a member of the family, that James, 2nd Lord, did not die till 1655, was thrice 
 married, and by his second wife left two sons, William, 3rd Lord, and John, 
 4th Lord, who both seem to have died young, the latter about 1667. This 
 corrected genealogy, however, has no Robert, * grandson ' of Lord Colville of 
 Culross, and it may be that the infant of Calvin's case was a son of Robert 
 Colville of Cleish, illegitimate son of the ist Lord and ancestor of the Lords 
 Colville of Ochiltree. But this seems doubtful, as Robert, son of the first Col- 
 ville of Cleish succeeded his father in 1560. The title of Colville of Ochiltree, 
 subsequently borne by the illegitimate descendants of the 1st Lord Colville of 
 Culross, was not created till 165 1. It is, under the circumstances, impossible 
 to say precisely who was the Robert Colville, b. 1605, and called by Gardiner 
 a ' grandson ' of Lord Colville of Culross, though the correction of Colville 
 for Calvin is clearly to be accepted. — Ed.] 
 
520 The Stuart Period. [Ch. 
 
 only two whose judgments are reported) was even more 
 subversive 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 parti- 
 cular subjects, for the execution of civil justice in the ordi- 
 nary courts, and is called by civ ilidins 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 satus populi. This power is 
 not directed by the rules of common law, but is properly 
 termed policy or government, 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 therefore 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, 
 IJaron Clark maintained the monstrous proposition that 
 Edward III. in giving his assent to the Act of the 43rd of 
 his reign, c. 4 (forbidding any new impositions to be laid 
 on wool or leather), ' did not bind his successors.' ^ 
 
 Even while the case was pending the merchants hastened 
 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 Imposi- 
 tions might cease to be levied, as no such duty could 
 legally be demanded without the consent of Parliament. 
 
 ' Judgment (abridged) in Bates s case (the 'Case of Impositions'), 2 St. 
 Tr. 37ij [and Denman's Broom's Const. Law, 246-9. — Ed.] 
 
XIII.] James L to Petition of Right, 521 
 
 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 29th of July, 1608, a Book of Rates was The 'Book 
 published under the authority of the Great Seal, imposing \^^^^ ^^* 
 heavy duties upon almost all mercantile commodities, ' to 
 be for ever hereafter paid to the King and his successors, 
 on pain of his displeasure.' 
 
 At length the financial difficulties of the King compelled Session IV. 
 him again to summon Parliament.^ The lawyers in the p>b. 9- 
 Lower House had in the meantime been looking into the J"^y 23- 
 legal authorities, and were now prepared to dispute the 
 decision of the Judges in the Case of Impositions. Notwith- 
 standing a message from the King forbidding them to 
 discuss the question, the Commons 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 Remon- 
 King on his attempt to prevent discussion, claiming ' as against Im- 
 an ancient, general, and undoubted right of Parliament, to positions. 
 debate freely all matters which do properly concern the 
 
 * 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,' — 
 Gardiner, Hist. Eng. (1603-1616), i. 449; and see State Papers, Dom. [1603 
 -10, pp. 550, 551, 556], xlviii. 109, 116; xlix. lo. [Among these replies the 
 following are not the least instructive and worth citation. The Bailiffs of Eye 
 distinctly state that they * will elect the person nominated by his Lordship,' 
 but add that they ' hope he will be no charge to their poor corporation. ' 
 Most of those who gave up their rights to Government seem to have asked and 
 expected a quid pj-o quo in some shape, according to their several needs. Mr. 
 Render, in yielding Bossiney, ' solicits that he may not be elected Sheriff of 
 the county.' This was presumably to avoid the expenses attendant on serving 
 that office. The Bailiffs of Boroughbridge, with effusive loyalty, ' think their 
 refusal of his [Salisbury's] request for grant of a burgess-ship worse than death 
 itself.'— Ed.] 
 
52 2 The Stuart Period, [Ch. 
 
 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 king- 
 dom, 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 merchandises 
 wherein they have justly such a property as may not, with- 
 out their consent, be altered or changed : ' that whenever 
 former kings, * occasioned 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 merchants,' the Commons 
 'have in open Parhament complained 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 loving subjects agreed that this old 
 fundamental right should be further declared and estab- 
 lished by Act of Parliament, wherein it is provided that no 
 such charges should ever be laid upon the people, without 
 their common consent, as may appear by sundry records 
 of former times.' They proceed : ' We, therefore, your 
 Majesty's most humble Commons assembled in Parliament, 
 following 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 Parliament, 
 hath lately, in time of peace, set both greater impositions, 
 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 Petition unto your Majesty : 
 That all impositions set without the assent of Parliament 
 may be quite abolished and taken away ; and that your 
 
XIII.] James /. to Petition of Right, 523 
 
 Majesty, in imitation likewise 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 and merchandises, save only 
 by common assent in the Parliament, are and shall be void,' ^ 
 A Bill was introduced and passed through the Commons 
 enacting that no Imposition, other than those already in 
 existence, should thereafter be laid without consent of Par- 
 liament, but it was thrown out by the Lords. The Judg- 
 ment in Bates's case continued therefore to afford the 
 shelter of a legal decision for the arbitrary exactions of the 
 Crown. 
 
 Besides the question of Impositions, the Commons Complaints 
 brought forward a number of other grievances. They jf^^ Com- 
 especially complained of the High Commission Court ; mission 
 of the abuse of Proclamations, ' by reason whereof ' they Royal' Pro- 
 said, ' there is a general fear conceived and spread amongst ciamations. 
 your Majesty's people, that Proclamations will by degrees 
 grow up and increase to the strength and nature of laws ; 
 whereby not only that ancient happiness, — 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 govern- 
 ment upon the realm, and this their fear is the more 
 increased by occasion of certain books lately published, 
 which ascribe a greater power to proclamations than hereto- 
 fore had been conceived to belong unto them.' Dr. Cowell, Cowell's 
 reader in Civil Law at the University of Cambridge, had ^ ^^^^^ ^^' 
 recently published, under the patronage of Archbishop 
 Bancroft, a Law Dictionary called * The Interpreter,' con- 
 taining 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, 
 
 ^ Petyt, Jus Pari. 322, 323. 
 
5^4 . The Stuart Pa^iod. [Ch. 
 
 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 Parliament it is 
 asserted : * Of these two, one must needs be true, that 
 either the King is above the Parliament, that is, the posi- 
 tive laws of this 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 constitution of an abso- 
 lute 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 waving his absolute power to make 
 laws without their consent' ^ 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 pre- 
 rogative, and a Proclamation was shortly afterwards issued 
 prohibiting the purchase, uttering, or reading of the book, 
 and calling in all copies issued.^ 
 
 ^ Cowell's 'Interpreter,' ed. 1607, articles 'King,' 'Parliament,' 'Preroga- 
 tive,' ' Subsidy.' 
 
 2 Lord Salisbury reported to the House of Lords that the King had acknow- 
 ledged that, although he d,erived 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 de Jure, 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. 
 
XIII.] James I. to Petition of Right. 525 
 
 The remonstrance of the Commons on the subject of Answer of 
 
 the Tuds^es 
 
 Proclamations was not unproductive of good. Sir Edward as to the 
 Coke, Chief Justice of the King's Bench, was sent for to ""^^f^^l °^ 
 attend the Council, and was asked by Salisbury (i) whether mations. 
 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 con- 
 sumption as food only). Coke replied that it was a matter 
 of great importance, on which he would confer with the 
 
 (1603-1616). In the Proclamation suppressing the ' Interpreter,' James took King 
 care to improve the occasion, by himself exalting the Regal dignity to a \^y^\ James' s Pro- 
 with the Deity : ' This later age and times of the world wherein we are fallen,' dajnation 
 it begins ' is so much given to verbal profession, as well of religion as of all suppressing 
 commendable moral virtues, but wanting the actions and deeds agreeable to so the ' hiter- 
 specious a profession, as it hath bred such an unsatiable curiosity in many men's ^r^/^r.' 
 spirits, and such an itching in the tongues and pens of most men, as nothing is 
 left unsearched to the bottom both in talking and writing. For from the very 
 highest mysteries in the Godhead and the most inscrutable counsels in the 
 Trinity, to the very lowest pit of Hell, and the confused actions of the devils 
 there, there is nothing now unsearched into by the curiosity of men's brains. 
 Men not being contented with the knowledge of so much of the will of God as 
 it hath pleased him to reveal, but they will needs sit with him in his most 
 private closet and become privy of his most inscrutable counsels ; and therefore 
 it is no wonder that men in these our days do not spare to wade in all the 
 deepest mysteries that belong to the persons or state of Kings and Princes, that 
 are Gods upon earth : since we see (as we have already said) that they spare 
 not God himself. And this licence that every talker or writer now assumeth to 
 himself is come to this abuse, that many Phormios will give counsel to Hanni- 
 bal, and many men that never went of the compass of cloysters or colleges 
 will freely wade by their writings in the deepest mysteries of monarchy and 
 politick government : whereupon it cannot otherwise fall out, but that when 
 men go out of their element, and meddle with things above their capacity, 
 themselves shall not only go astray and stumble in darkness, but will mislead 
 also divers others with themselves into many mistakings and errors ; the proof 
 whereof we have lately had by a book written by Dr. Cowell called the Inter- 
 preter ; for he being only a civilian by profession, and upon that large ground 
 of a kind of Dictionary (as it were) following the alphabet, having all kind of 
 purposes belonging to government and monarchy in his way by meddling in 
 matters above his reach, he hath fallen in many things to mistake and deceive 
 himself : In some things disputing so nicely upon the mysteries of this our 
 monarchy, that it may receive doubtful interpretations ; yea in some points 
 very derogatory to the supreme power of this Crown : in other cases mistaking 
 the true state of the Parliament of this Kingdom and the fundamental constitu- 
 tions and privileges thereof : and in some other points speaking unreverently 
 of the Common Law of England and the works of some of the most famous 
 and ancient Judges therein ; it being a thing utterly unlawful to any subject, 
 to speak or write against that law under which he liveth, and which we are 
 sworn and are resolved to maintain. Wherefore, '&c. See the Proclamation 
 in Preface to the 1708 edit, of the • Interpreter.' 
 
526 
 
 The Stuart Period. 
 
 [Ch. 
 
 The Great 
 Contract. 
 
 Session V. 
 
 1610. 
 Oct. 16- 
 Dec. 6. 
 
 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 conjunc- 
 tion 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 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 imposing fine and imprisonment was issued.^ 
 Another measure which occupied much of the attention 
 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 irksome 
 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 Parliament : but in the 
 meantime 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 uncontrollable by any statute. They were 
 
 12 Reports, 74. 
 
XIII. ] James L to Petition of Right.. 527 
 
 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, whose jurisdiction the Bishops were persistently 
 
 attempting 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 prerogative undiminished.^ 
 
 It became evident that the scheme must fall through ; and 
 
 Salisbury then pressed the Commons 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 Parliament 
 
 the Parliament was finally dissolved, after an existence of g^eb. 161 1. 
 
 nearly seven years.^ 
 
 For the next three years James endeavoured to rule James 
 without having recourse to Parliament. His great difficulty rule without 
 was the financial one. His own extravae^ance, and the Jj^,^^^ °^ 
 
 1 Parliament, 
 
 prodigality with which he rewarded the worthless favourites [1611-14]. 
 of his Court, had involved him in a heavy debt and raised 
 
 1 Gardiner, Hist. Eng.[i 603-1616] i. 478; Pari. Deb. 1610 (Camd. Soc), 
 p. 163. 
 
 2 ['The dissolution of 161 1,' says Green, Hist. Eng. People, iii. 82, 'pro- 
 claimed to the whole people a breach between two powers which it had hitherto 
 looked upon as one. ... It carried to every shire and every borough the 
 news that the Monarchy had broken with the Great Council of the realm. ' 
 —Ed.] 
 
528 The Stuart Period. [Ch. 
 
 the ordinary expenditure far above the Crown revenues. 
 Means re- A Vigorous effort was made to raise funds. Loans on 
 order to raise Pnvy Seals were demanded, often unsuccessfully, from 
 money. guch 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,(X)0 ; the Dutch were 
 successfully pressed to liquidate their debt, contracted 
 with Elizabeth, by annual instalments of ;^ 40,000 ; several 
 peerages were sold at ;^i 0,000 a piece ; and a new order of 
 hereditary knights, called Baronets, was created, each of 
 whom paid ;^iooo for his patent. In addition, large sums 
 were raised by the sale of Crown lands. But such resources 
 His financial were clearly temporary and inadequate. At the beginning 
 difficulties. ^^ jgj^ ^j^^ king's Habilities amounted to ;^68o,ooo as 
 contrasted with ^300,000 at which they had stood at the 
 opening of the session of 16 10, whilst the actual expendi- 
 ture exceeded the income by ;£" 200,000.^ 
 
 For some time it had been evident that Parliament must 
 be summoned ; a course which had always been consist- 
 ently 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 Secre- 
 The Under- tary of State. In a very statesmanlike memorial Nevill 
 takers. assured the King that it was a mistake to suppose that the 
 
 opposition in the late Parliament had arisen from factious 
 motives. 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 subsidies had set their hearts. Let the King 
 
 * For the financial details of James's reign from 1603 to 1616, see Gardiner, 
 Hist. England. 
 
XIII.] James /. to Petition of Right. 529 
 
 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 Parliament's good 
 affections, yielding what he meant to yield 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 Com- 
 mittee which might confer with him on all points on which 
 any difference should arise between them.^ 
 
 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 submitted 
 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 gentlemen, 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.^ Besides Nevill, who had offered to under- 
 take, on behalf of the future House of Commons, that if 
 the King would concede the chief points in dispute the 
 House would not be niggardly 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 
 
 1 See the Memorial in Gardiner, Hist. Eng. (i 603-161 6), App. V. 
 
 2 Cott. MS. Titus F. iv., ff. 328, 330, 332, cited by Gardiner. 
 
530 The Stuart Period, [Ch. 
 
 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 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 constituencies having evidently looked out for men 
 who represented the determined spirit of the nation even 
 more strongly than the members of the late Parliament 
 had done.^ 
 Second Par- Parliament met on April 5th, 1614. In the King's 
 ^^^r* Speech certain concessions were offered, but of slight Con- 
 ^.prii 5- stitutional importance. The Commons were not to be 
 Impositions satisfied with these small instalments of justice. They 
 
 denounced. i ■, • /- t • • \ 
 
 went at once to the old grievance of Impositions. A 
 
 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 excitement in the Lower 
 
 Bishop House. Neile, Bishop of Lichfield, a sycophantic seeker 
 
 Neile. after power and place, indulged in very abusive language 
 
 I towards the Commons. The Lower House immediately 
 
 1 demanded satisfaction from the Lords. The Bishop, when 
 
 1 called upon to explain his words, protested 'with many 
 
 \ tears ' that he had been misconstrued and never meant to 
 
 1 speak any evil of the Commons. The Lords acquainted 
 
 ^ Gardiner, Hist. Eng. 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 
 vSomersetshire country gentleman, nine years older than Wentworth, was sent 
 to the House of Commons by the little borough of Calne. ' — Ibid. 
 
XIII.] James I. to Petition of Right. 531 
 
 the Lower House with what had passed, but expressed an 
 opinion that in future no member of their House ought to 
 be called in question on the ground of common fame alone. 
 The King now sent a message that unless the Commons 
 proceeded 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 The second 
 few days later, on the 7th of June, James dissolved the parliament 
 Parliament, which, from the circumstance of its not having dissolved, 
 passed a single Bill, was nicknamed * the Addled Parlia- 
 ment' ^ It had sat a little more than two months. 
 
 This sudden dissolution of Parliament was not sufficient 
 to appease the exasperation of James. Four members Members 
 who had distinguished themselves by the warmth of their ^o^er.^ ^ 
 language, Wentworth,^ Hoskins, Christopher Nevill (a 
 younger son of Lord Abergavenny), and Sir Walter Chute, 
 were sent to the Tower. Sir Edwin Sandys and four 
 other members were ordered, at the same time, not to 
 leave London without permission, while Sir John Savile, 
 Six Roger Owen, Sir Edward Phelips, and Nicholas Hyde, 
 were punished by dismissal from the Commission of the 
 Peace. 
 
 This intemperate action of James committed him still Importance 
 more deeply to the conflict with the House of Commons. °aken by ^ 
 His position towards that assembly had, in fact, already J^"^^^- 
 become untenable. * No political truth,' observes Mr. Gar- 
 
 ^ ['The courtiers,' says Green, Hist. Eng. People, iii. 90, 'mocked at the 
 *' Addled Parliament," but a statesman would have learned much from the 
 anger and excitement that ran through its stormy debates. ' — Ed.] 
 
 2 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 Parliament, by the 
 freedom of his language. He is to be distinguished from Sir Thomas Went- 
 worth, member for Yorkshire, who was returned to Parliament 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 of 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 imitation of the Sicilian Vespers, was detained 
 in prison for a twelvemonth. — Privy Council Register, cited by Gardiner, Hist. 
 Eng. [1603-1616,1 165, n. — Ed,]. 
 
 M M 2 
 
532 The Stuart Period, [Ch. 
 
 diner, * has been more completely demonstrated by expe- 
 rience than that which declares the impossibility of the 
 co-existence, for any long time, of an hereditary sovereign 
 and a representative legislature, wherever no right of con- 
 trol 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 pre- 
 cedents 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 predicted, would be answered, whenever they 
 met again, by impeachment of the ministers of the Crown.' ^ 
 Six years of During the next six years James pursued a career of 
 government, arbitrary government unchecked by the existence of Par- 
 [1614-20]. liament. To supply the wants of his Treasury recourse was 
 again had to the old expedients of forced loans, monopolies, 
 heavy fines, and the rigorous exaction of the old feudal 
 payments. At the time of the dissolution some of the 
 Bishops offered the King a contribution 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 
 
 A general resolution was then taken to call upon all England for a 
 
 Benevo- 
 
 lence. 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 
 
 ^ Gardiner, Hist. Eng. [1603-1616] ii. 166. 
 
 ^ See Hamilton, Quarter Sessions from Elizabeth to Anne, passim. 
 
XIII.] James I. to Petition of Right, 533 
 
 those who refused to pay. It was significant that the 
 Judges of assize were specially charged with the task of 
 recommending payment,^ 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 pres- 
 sure obtained. The Bishops, courtiers, and City of London 
 had contributed ;^23,5oo previously to the general appeal. 
 From the general appeal itself, extending over nearly three 
 years, the total sum obtained from the people of England 
 was no more than £^^2,600? In several counties the Protests 
 sheriffs and magistrates sent up united protests against the ^^^^^^^ ^^' 
 demand, appealing to the Act of i Richard III. c. 2, against 
 Benevolences, and expressing their unwillingness to injure 
 their posterity by establishing a bad precedent.^ 
 
 Mr. Oliver St. John, on being applied to by the Mayor imprison- 
 of Marlborough for a contribution, replied in a letter in ^^^V?,^ 
 which he maintained that all such contributions were con- St. John, 
 trary to Magna Charta and other statutes, including the 
 well-known Act of Richard III., and that it was improper 
 for private individuals to oppose their judgment to that of 
 the Commons in Parliament who had refused to grant 
 any supply. He concluded, somewhat intemperately, by 
 charging the King with breaking the Coronation oath, and 
 declaring 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, and sentenced by 
 the Star Chamber to pay a fine of ;^5,ooo, and to be impri- 
 soned 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 
 in investigating another affair, which was probably clothed ofP<^(^chcL^ny 
 with an importance which it did not possess in consequence 
 
 1 Gardiner, Hist. Eng. [1603-1616] ii. 172. 
 
 2 Ibid. 
 
 3 Privy Council Register, cited by Gardiner, ^Ibid.l App. VI. 
 
534 '^^^ Stuart Period. [Ch, 
 
 of the excited feelings roused by the l^vy of the Benevo- 
 lence. Edmund 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 sen- 
 tenced 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 offensive language, such an attack upon the personal 
 conduct of the King and the actions of his Ministers, as 
 would undoubtedly, 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 Puri- 
 tanic intemperance, had been prepared in connection with an 
 organised conspiracy of the Somersetshire gentry.^ 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 con- 
 spiracy or shadow of a conspiracy having been detected, 
 the King and his Council determined to proceed directly 
 against the prisoner, not for a seditious libel, but for 
 treason, under the statute of 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 necessarily intended to be preached. James 
 directed the Attorney-General, Bacon, to confer with the 
 
 ^ 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. [1603-1616] ii. 181. 
 
XIII.] James L to Petition of Right. 535 
 
 Judges of the King's Bench separately, in order to ascer- 
 tain, and probably to influence, their opinion. Chief Jus- 
 tice 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.' ^ 
 The three Puisne Judges made no difficulty in giving an 
 opinion favourable to the Crown ; and Coke, finding him- 
 self 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.^ 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 impend- Collision 
 ing collision between the King and the Chief Justice of the xTn'^^and^^ 
 King's Bench. Now that James was at open war with the Chiefjustice 
 representatives of the nation, and was determined to govern 
 as long as possible without the co-operation of a Parlia- 
 ment, 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 submitted, as they arose from time to time, to 
 the decision of the Judges of the land. They were the 
 authorised exponents of the existing law, and thus pos- 
 
 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-Ofificers 
 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 raised on the present 
 occasion. — Gardiner, Hist. Eng. [1603-16 16] ii. 186. 
 
 2 'Innovations of Sir E. Coke,' Bacon's Works (ed. Montagu), vii. 404. 
 
53^ The Stuart Period. [Ch. 
 
 sessed the power, if so minded, effectyally to check the 
 encroachments 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 satisfactory to 
 the Crown than those upon which the Judges had founded 
 their decisions in the celebrated cases of the Post-nati and 
 of the Impositions.^ But Coke early developed upon the 
 bench a sturdy personal independence, 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.^ 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. 
 The Case Matters were brought to a crisis, in 1616, by the proceed- 
 
 of Commen- jj^grs in what is known as the ' Case of Commendams.' 
 
 dams. ° 
 
 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 bishop- 
 ric. Two persons named Colt and Glover brought an 
 action against the Bishop on the ground that the presen- 
 tation 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 impor- 
 tance, 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 
 
 1 Supra^ pp. 518, n. 2, 519. 
 
 ^ See, in particular, the case oi Braivnlow v. Michelle and Bacon's argument 
 on the writ De Rege Inconsulto (Works, vii. 683), and the case of GlanvilU 
 and Courtney, which gave rise to Coke's quarrel with the Chancery (Cro. Jac). 
 The facts are concisely stated in Gardiner, Hist. Eng. (1603-1616), ii. 266-271. 
 
XIII.] James I, to Petition of Right, 537 
 
 arguing the special points of the case, had disputed the 
 King's general prerogative to grant a commendam. Here- 
 upon 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 
 unanimously 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 summoned 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 judgment 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 ; ^ that 
 
 1 James was careful to do what he could to repress the independence of the Independence 
 Bar. In 1607, Nicholas Fuller, a bencher of Gray's Inn (who had sat in of the Bar 
 
 assailed. 
 
538 
 
 The Stuart Period, 
 
 [Ch. 
 
 his prerogative was double, the one , ordinary, having 
 relation to private interests, and which might be and was 
 every day disputed in Westminster Hall ; the other of a 
 higher nature, referring to his supreme and imperial power 
 and sovereignty, 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 demanding 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 the law and their 
 oaths. At the desire of James, the Lord Chancellor EUes- 
 mere and the Attorney General Bacon then delivered their 
 opinions, which were directly opposed to that 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 
 
 Cases of 
 Nicholas 
 Fuller, 
 
 and James 
 Whitelocke. 
 
 James's first Parliament, and was returned for the City of London in 1614), 
 was employed by two Puritans, Ladd 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. i). 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 slan- 
 dered the King's authority by questioning the power of the Commission, Fuller 
 was himself summoned before the High Commission Court, fined 200/., and 
 committed to prison. In 1613, James Whitelocke, a barrister who had been 
 brought into notice in James's first Parliament by his great speech on Imposi- 
 tions, 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, 12 Rep. 41 ; 
 Whitelocke's Liber Famelicus, 33-40, 113-118; Gardiner, Hist. Eng. [1603- 
 1616] i. 443 ; ii. 109. 
 
XIII.] James I. to Petition of Right. 539 
 
 King, to whom they owed all their future prospects of pro- 
 fessional advancement, 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 
 occasion 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 Council and Coke is dis- 
 suspended from his office, and not long afterwards, in Nov. [he Chief*"" 
 1 61 6, received notice that he had ceased to be Chief Justiceship. 
 Justice.^ 
 
 * With the disgrace of Coke,' observes Mr. Gardiner, * the His disgrace 
 period of transition between the history of the Tudors and landmark. 
 the history of the Stuarts comes to an end. It is a great 
 historical landmark. Up to this time James had been busy 
 in acquiring the powers which were afterwards 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 practically, as well as theoreti- 
 cally, at the good pleasure of the sovereign. From hence- 
 forward the prerogative was safe from attack in the courts 
 of law. From henceforth, 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 pro- 
 
 ^ [Green, Hist. Eng. People^ iii. 94, while admitting that when 'driven to 
 answer' the King, Coke 'answered well,' gives what seems a very imperfect 
 view of his character, describing him as a ' narrow-minded and bitter-tempered 
 man, but of the highest eminence as a lawyer, and with a reverence for the 
 law that over-rode every other instinct.' But he shews both that James's 
 * resolve to tamper with the course of justice ' stirred a deeper resentment among 
 Englishmen than any other of James's acts, and also that Coke's firmness in 
 refusing to ' consult ' with the King, which, ' as James interpreted the phrase, 
 simply meant to obey the King's bidding as to what the judgment of a court 
 should be,' was 'justified by what immediately followed.' — Ed.] 
 
 2 Hallam, Const. Hist. i. 346-349 ; Gardiner, Hist. Eng. [1603-1616] ii. 
 272-283. 
 
540 The Sttiart Period, [Ch. 
 
 vc 
 
 nounced from the bench by judges who were, compara- 
 tively at least with those who held office subsequently to 
 Coke's disgrace, independent of the favours and the anger 
 of the Crown.' ^ 
 Foreign The Foreign policy of James was scarcely, if at all, less 
 
 fames ° 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 twofold indignation 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 con- 
 test 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 desirable ; 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 evi- 
 dence 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 policy 
 of alliance with Spain became still more odious after the 
 
 ^ Hist. Eng. (1603-1616), ii. 284, 326. 
 
 2 [Gardiner, Hist. Eng. 1603-42, i. 102-5, only speaks of a 'large party' in 
 England which was ' desirous to fight the quarrel out with Spain. ' On the 
 other hand he says that Cecil knew that ' England could not bear many more 
 years of war,' and he thinks that Barneveld, when he came over to congratulate 
 James on his accession, 'seems to have made an impression upon the susceptible 
 mind of James, and was, perhaps, the first who induced him to doubt the 
 truth of the sweeping condemnations which he had been accustomed to pass 
 on the cause of the Dutch.' — Ed.] 
 
XIII.] James I. to Petition of Right, 541 
 
 outbreak of the war in Germany, in which the King's son- 
 in-law, Frederick, Elector Palatine, was driven out of his 
 hereditary dominions by the Emperor. Despite 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 Protestant interest in Germany 
 by force of arms. In this state of affairs the Ministers 
 advised the King to take advantage of the war enthusiasm 
 to summon a Parliament, and James reluctantly gave his 
 consent. 
 
 James's third Parliament met on the 30th January, Third Par- 
 1620 — I, and was opened with a conciliatory speech from Sesskm I. 
 the Throne. The Commons made some complaints of the 1620-1. 
 imprisonment of four of their members, at the close of the june 4. 
 Parliament of 1614, for words spoken in the House; but 
 the matter was allowed to drop on certain explanations 
 being given by Mr. Secretary Calvert, and an assurance 
 from the King that he would faithfully maintain the privi- 
 lege 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 nJ^nts^. 
 early appointed. The first abuse to which their attention 
 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.^- Under the 
 
 ^ 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 n. 
 The proceedings against Wolsey in 1529 have sometimes been termed an ' im- 
 peachment,' but inaccurately. Articles against him 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. — Lin- 
 gard, vL 160. 
 
542 The Stuart Period, [Ch. 
 
 Tudors impeachments had fallen 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 through the Star Chamber enabled it to inflict 
 punishment for many State offences without resorting to the 
 assistance of Parliament. With the revival of the spirit of 
 liberty in the reign of James L, the practice of impeachment 
 revived also, and was energetically used by the Commons 
 in the interest alike of public justice and of popular power. 
 Impeach- In the session of 1621, the Commons impeached Sir Giles 
 Mompesson Mompesson and Sir Francis Mitchell who, as patentees for 
 andMitchell, 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, con- 
 demning them to be imprisoned, fined, and degraded from 
 the honour of knighthood.^ 
 
 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 Llandafif, for brocage of 
 
 Impeach- Judicial bribery. As yet the Commons had only attacked 
 
 Chancellor^ Private persons ; a much more important step was the 
 
 Bacon. impeachment of Lord Chancellor Bacon, which revived the 
 
 Tight 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,ooo, 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.^ The Constitutional right, 
 
 revived by the proceedings against Bacon, was confirmed 
 
 ' Mompesson had escaped beyond sea, but Mitchell suffered his punish- 
 ment. 
 
 ^ 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 short con- 
 finement, remitted the fine and the other parts of the sentence, and conferred 
 upon him a pension of i8cx)/. 
 
XIII.] James I. to Petition of Right. 543 
 
 and completely re-established by the impeachment, in Impeach- 
 1624, of Lionel Cranfield, Earl of Middlesex, Lord Treasurer] 
 TVeasurer of England, for bribery and other misde- ^l^^^^^^' 
 meanours. 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 harsh- ! 
 ness of the law induced the Lords to make an order that 
 in future cases of impeachment 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 Lords' Journal, 307-383, 418, 
 
 Impeachments. — From the year 1621, when Sir Giles Mompesson and Subsequent 
 Lord Bacon were impeached, down to the Revolution in 1688, there -were cases of Im- 
 about forty cases of impeachment; under William III., Queen Anne, ^nd. peachmeni. 
 George I., fifteen; and the reign of George II. was marked by one only, that 
 of Lord Lovat, impeached in 1746 for high treason. [May, Pari. Frac, 9th 
 €d.,p. 58.] 
 
 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 Buckingham. 
 the Lords on thirteen charges, of which the most important were that (i) he 1626. 
 had neglected to guard the high seas ; (2) had lent a squadron of English ships rggg p^^f 
 
 to be employed against the Huguenots ; and (3) had purchased for money and ^^^ £jj i 
 
 monopolised 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 afterwards Charles prorogued Parliament, 
 and during the recess Buckingham was assassinated by Felton. 
 
 Dr. Roger Mainwaring. — Impeached by the Commons for three political Mainwaring. 
 sermons (two preached before the King,) afterwards published under the title 1628. 
 of ' Religion and Allegiance. ' He maintained that ' Parliaments were not or- 
 dained to contribute any right to the ICing, 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 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 Strafford. 
 treason. Of the twenty-eight articles exhibited j^ainst him, having reference 1640. 
 
544 ^^^^ Stuart Pe^'iod, [Ch. 
 
 Not content with reasserting their aftcient right of im- 
 peachment, the Commons, in the session of 162 1, were 
 
 to his conduct as President of the Council of the North, as Lieutenant of Ire- 
 land, as a Privy Councillor, and as Commander of the King's army in England, 
 one only, the 1 5th, 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 against 
 the King' — within the Statute of Edward 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 * Strafifordians, 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 
 sacrificing the man who had so faithfully served him, and whom he had pro- 
 mised that * not a hair of his head should be touched.' * The execution of 
 Strafford,' as is 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.) 
 
 Laua. Archbishop Laud. — Impeached of high treason in March, 1641, and sent to 
 
 1641. 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 (i) to sub- 
 vert 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 wit- 
 nesses, 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 consulted 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 Edward III. , and so referred it wholly to the judgment of 
 this House.' (Lords' Journ. 17 Dec. 1644.) This was tantamount to a decla- 
 ration 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. 
 
 Clarendon. Edward Hyde, Earl of Clarendon, the Lord Chancellor and Chief Minister 
 
 1667. 
 
XIII.] James /. to Petition of Right. 545 
 
 hurried by their zeal against Popery and their enthusiasm 
 for the Protestant Elector Palatine, into an act which was 
 
 of Charles II. from the Restoration till his own fall. — Impeached on a 'general* 
 charge of high treason. Of the seventeen articles against him, the most 
 important were the first, the fourth, and the eleventh ; viz., (i) 'That ihe 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 procure precedents for the imprisoning 
 any other of his Majesty's subjects in like manner.' [This charge was undoubt- 
 edly true. The arbitrary proceedings of Lord Clarendon gave rise to an agita- 
 tion 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 ' g neral charge ' of treason (which the Commons had endeavoured to get up 
 by using the word * traitorously ' in their impeachment), refused to commit 
 Clarendon to the Tower. 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 Osbomey Earl 0/ Daniy.— Impeached of high treason and other high Danby. 
 crimes and misdemeanours. The principal charge against him was his having 1679. 
 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 cariying 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 Con- 
 stitutional importance, (i) The letter to Montagu had been most unwillingly 
 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 hand- 
 writing — 'This letter is writ by my order, C. R.' As the King's authority for 
 the letter was undeniable, 'the Commons,' as Haliam has observed, 'in im- 
 peaching lord Danby, went a great way towards establishing the principle 
 (recognised by the modern theory of the constitution) that *w ttiinister can 
 shelter himself behind the throne by pleading obedience to the ordars of his sove- 
 rei^n^ but is answerable 'for the justice, the honesty, the utility of all measures 
 emanating from the crown, as well as for their legality ' ; thus rendering the 
 executive administration ' subordinate, in all great matters of policy, to the . . . 
 virtual control of the two houses of parliament.* (Const. Hist. ii. 408.) 
 
 (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 impeach- 
 ment, could not be brought within any reasonable interpretation of the statutes 
 re'ating to treason, and manifestly amounted to no more than a misdemeanour. 
 After an adjourned debate, the Lords refused to commit Danby to the 1 ower 
 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 s'iiortly afterwards prorogued and then dissolved ; but the next House of 
 Commons revived the impeachment, and the Lords then, of their own motion, 
 
 C.H. N N 
 
546 The Stuart Period. [Ch. 
 
 at once an invasion of the Judicial rights of the Lords, and 
 a piece of gross and cruel injustice. It came to the know- 
 ordered the Usher 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'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 con- 
 tention. Although the King's prerogative to grant a pardon, even before trial, 
 was undoubted in all ordinary criminal proceedings by indictment at the King's 
 suit, it was equally undoubted 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, ' ^sw/ra, p. 
 132.) 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 pretended responsibility of the 
 Ministers of the Crown, who by the intervention of prerogative might be 
 screened from the inquiry and justice of Parliament. Directly after the Revo- 
 lution the Commons again voted that ' a pardon is not 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 Parliament.' The right of the Crown to reprieve or pardon 
 after sentence, remains, however, unaffected. James I. had remitied 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 re- 
 ceived the King's pardon. Indirectly, the Commons possess the power of par- 
 doning 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. See May, Pari. Prac. [9th edit. p. 739]. 
 
 (4) The right of the Bishops to sit and vote on the trial of peers in capital cases 
 was another question raised by the impeachment of Loid Danby. It was ad- 
 mitted 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 proceedings — as 
 in this case upon the validity of Danby 's pica of a pardon in bar — the Hishops 
 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 pro- 
 ceeds to the vote of guilty or not guilty.' This is in conformity with the nth 
 chapter of the Constitulitns of Clarendon (nth Hen. II.) which expressly re- 
 quired the Bishops to be present on trials, but, io 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 perve- 
 niatur ad diminutionem membrorum, vel ad mortem,' supra, p. 100). The 
 limited exclusion of the Bishops applies only to purely judicial proceedings. 
 
XIII.] James I, to Petition of Right. 547 
 
 leds:e of the House that Edward Floyd, a Roman Catholic Violent 
 
 11' proceedings 
 
 barrister, then a prisoner in the Fleet, had expressed his against 
 
 Floyd. 
 
 They are fully entitled to vote at every stage of a Bill of Attainder, which, 
 though judicial in substance, is in form a legislative 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 proceedings, including the final question for the 
 passing of the Bill. 
 
 (5) Another point raised for the first time on the trial of Lord Danby, was, 
 whether an impeachment abated on the prorogation or dissolution of Payliaj?tent? 
 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 affirmative, 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 Parlia- 
 ment, as distinguished from a prorogation from session 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 ParHament.' (Lords' Journ. March i8th, 19th, 1678-9.) 
 This continued to be the law of Parliament until 1685, when, in order to secure 
 the escape of the ' popish lords ' then under impeachment, the previous reso- 
 lution 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' imprison- 
 ment in the Tower, not being admitted to bail until 1684. 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 1695 ^^ was 
 again impeached by the Commons on a charge of corruption ; but the session 
 being suddenly prorogued, no further proceedings were taken. He died in 
 17 12. 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 impeach- 
 ments 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. Their FitzharriSy 
 real object was to elicit disclosures of a pretended ' popish plot,' and so aid the 1681. 
 progress of the Exclusion Bill against the Duke of York. In order to prevent 
 the Commons from interfering in the prosecution, Charles II. had already in- 
 structed 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 tha hands of the Court party brought into discussion an important point 
 of Constitutional law — viz. , whether a commoner could be impeached for a capital 
 o^ence. 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 judg- 
 ment be not drawn into example or consequence in time to come, whereby the 
 said peers may be charged hereafter to judge other than their peers, contrary 
 
 N N 2 
 
548 
 
 The Stuart Period. 
 
 [ClT. 
 
 satisfaction that 'good man Palsgrave and goodwife Pals- 
 grave ' (the Palatine and his consort) had been driven from 
 
 Portland^ 
 
 Orford, 
 
 Halifax^ 
 
 and SomerSy 
 1701. 
 
 Dr. Saehe- 
 vereiif 
 J 7 10. 
 
 to the law of the land.* (Rot. Pari. ii. 53, 54.) Even if this declaration 
 amounted to a statute, which uas doubtful, it clearly applied to cases similar 
 to that of De Beresford, and not to an impeachment at the suit of the Commons. 
 In subsequei.t cases the Lords had violated not only their own declaration, but 
 also Magna Charta and the Comn.on law, by trying commoners for capital 
 offences at the suit of 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 hail been 
 exercised, without question, so recently as the time of Charles I. The Com- 
 mons met the decision of the Lords by voting it 'a denial of justice, a \iola- 
 tion of the constitution of Parliament, and an obstruction to the further dis- 
 covery 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 come to a resolution 
 to proceed on the impeachments. Lords' Journ. xiv. 260; May, Pari. 
 Practice [9th ed. 683]. 
 
 Williain Beniinck^ 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 Spanish Partition Treaties in I7CX>, 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 thtir 
 evidence, the impeached Ministers were acquitted. (14 St. Tr. 233.) There 
 was probably some foundation for several of the minor charges, but few have 
 pretended to justify the impeachments, which, as Hallam observes, have 
 generally been regarded as * a disgraceful instance of party spirit.' 
 
 Henry Sacheverell, rector of St. Sa\iour's, Southwark, impeached by the 
 Commons for two sermons preached, the one at Derby, the other at St. Paul's, 
 in which he inculcated the doctrine of unlimited passive obedience. A prosecu- 
 tion characterised by Hallam (Const. Hist. iii. 204) as 'of high impoitance 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.' * The managers appointed by the House of Common?,' says Lock- 
 hart, an ardent Jacobite, 'behaved v^ith all the insolence imaginal le. In th' ir 
 discourse they boldly asserte<<, even in her Majesty's presence, that, if the 
 right to the crown was hereditary and indefi asible, the prince btyond seas 
 (meaning the king), and not the Queen, hart 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 constitution was founded, and to which the lav»s of the 
 land a^^reed, 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 asser- 
 tions, it is easy to be believed that the Queen was not well pleased to hear 
 them maintained, even in her own prtsvuce, and in so solemn a manntr, 
 before such a great concourse oi htr subjects. For, though piirxts do chtrish 
 these and the like doctrines w hilst they serve as the means to advance them- 
 
XIII.] James /. to Petition of Right. 549 
 
 the city of Prague. The Commons, 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. Floyd was condemned by the House 
 to pay a fine of ;^iooo, 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, 
 considering 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,^ and in this 
 very session they had come to a vote, prior to impeaching 
 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 
 
 selves to a crown, yet, being once possessed thereof, they have as little satis- 
 faction in them as those who succeed by an hereditary unquestionable title. * 
 (Lockhart Papers, i. 312.) 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's, Holborn. He died in 1724. 
 
 Robet-t HarUy, Earl of Oxford; Henry St. yohn. Viscount Bolingbroke ; and Oxford ^ 
 James Butler, Duke of Ornund. — Tory ministers impeached by the Commons Bolin^'yroke^ 
 for their share in negotiating the Peace of Utrecht, in 1713. Bolingbroke and andOrmona, 
 Ormond fled to France, and were attainted in their absence. Oxford alleged 1715. 
 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 tole- 
 rated 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 
 mo le of procedure, having declined to continue the prosecution. 
 
 This is the last instance of purely political impeachment. Constantly respon- 
 sible to Parliament, Ministers have been restrained from the commission of the 
 graver class of offences, and for minor errors of policy or conduct the loss of 
 power has proved a sufficient punishment. ' Thi last hundred years,* says May 
 (Const. Hi>t ii. 93) 'present but two cases of impeachment — the one against 
 Mr. Warren Histings, on charges of misgovernment in India, the other Warren 
 against Lord Milville (in 1804), for alleged malversation in his office. The Hastings ^ 
 former was not a minister of the Crown, and he was accused of offences beyond 1788. 
 the reach of Parliamentary control ; and the offences charged against the latter Melville^ 
 had no relation to his political duties as a responsible minister.' 1804. 
 
 ^ Supra, p. 335 ; Rot. Pari. iii. 427. 
 
S50 
 
 The Stuart Period, 
 
 [Ch. 
 
 Session II. 
 
 1 62 1. Nov. 
 
 20— Feb. 8, 
 
 1621-2. 
 
 Prosecution 
 of Coke and 
 Sandys. 
 
 Irritation 
 of the 
 Commons 
 thereat. 
 
 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 diminish- 
 ing of the lawful rights or privileges of either House.' ^ 
 
 The Parliament had now sat four months busily engaged 
 in impeachments, enquiries into grievances, and the prepara- 
 tion 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. 
 
 When the Commons re-assembled in November they 
 were in anything but a complacent frame of mind. During 
 the recess, proceedings had been taken by the Court party 
 against Sir Edward Coke and Sir Edwin Sandys, two of 
 the most popular Parliamentary orators, which, though not 
 ostensibly grounded on their conduct in the House, were 
 believed to be due to that cause. A prosecution 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 Com- 
 mons took up the cause of their members with great 
 warmth. The accusers of Coke were ordered to be taken 
 into custody by the Serjeant-at-arms, and a Committee was 
 appointed to examine witnesses with the view of establish- 
 ing the fact of a conspiracy against him, originating in 
 hostility to his political conduct. Sandys was absent through 
 illness, but although Mr. Secretary Calvert declared that 
 his arrest had no connexion with his speeches in the House, 
 
 ^ Pari, or Const. Hist. v. 435. By the Lords, Floyd was adjudged, in addi- 
 tion to the punishment of the pillory, to pay a fine of ;^50oo, 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 New- 
 gate. On the following day, the whipping was remitted on a motion of Prince 
 Charles. — Lords' Journ. 148. 
 
XIII.] James L to Petition of Right. 551 
 
 two Members were appointed to visit him and solicit a 
 disclosure of the truth.* 
 
 While expressing themselves willing to grant a moderate 
 subsidy, the Commons resolved first of all to enter upon 
 the question of grievances. On the proposition of Sir Petition 
 Edward Coke, a petition was drawn up against the growth popery and 
 of Popery. It asserted that both the Pope and the King the Spanish 
 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 of Wales 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 a copy of James for- 
 this petition, before its presentation, wrote a peremptory ^^^3^*^^ 
 letter to the Speaker, forbidding the House to meddle ' meddle 
 generally with mysteries of State, and in particular not to teries of 
 speak of his son's match with the Daughter of Spain, or State.' 
 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 ourselves 
 very free and able to punish any man's misdemeanours in 
 Parliament, as well during their sitting as after : which we 
 mean not to spare hereafter, upon any occasion of any 
 man's insolent behaviour there that shall be ministered unto 
 us.' ^ Undismayed by the King's menacing language, the Remon- 
 Commons presented to him a strong but respectful justifi- ^^^^q^^, 
 cation of their conduct, in which, adverting to that part of mons. 
 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 
 
 * Com. Journ. 643, 644, 662 ; Lingard, ix. 193. 
 2 Pari, or Const. Hist. v. 492. 
 
552 The Stuart Period, [Ch. 
 
 The King's ancestors.' ^ In a long, laboured, and sarcastic reply, James 
 ^^^ ^* dwelt at length on their unfitness for meddling with matters 
 
 of government far above their reach, commended to them 
 the maxim * ne siUor 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.* =^ 
 It was impossible for the Commons to leave unanswered 
 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 i8th December, 1621, in 
 these words : — 
 Protestation ' The Commons now assembled in Parliament, being justly 
 1621^ ' occasioned thereunto, concerning sundry liberties, franchises, 
 privileges, and jurisdictions of Parliament, amongst others 
 not here mentioned, do make this Protestation following : — 
 
 * That the liberties, franchises, privileges, and jurisdictions 
 of Parliament, are the ancient and undoubted birthright 
 and inheritance of the subjects of England : 
 
 * And that the arduous and urgent affairs concerning the 
 King, State, and 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 : 
 
 1 Pari, or Const. Hist. v. 497. 
 » Ibid. V. 507. 
 
XIII.] James I. to Petition of Right, 553 
 
 * 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 
 and freedom to treat of these 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 Parliament 
 business : 
 
 * And that if any of the said members be complained of 
 and questioned for anything done or said in Parliament, 
 the same is to be showed to the King by the advice and 
 assent of all the Commons assembled in Parliament, before 
 the King give credence to any private information.' ^ 
 
 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 Parliament ; and re- Parliament 
 venged himself on the ' ill-tempered spirits who by their p-gi, g^ ' 
 cunning diversions had imposed on him the necessity of 1621-2. 
 discontinuing it,' by committing Sir Edward Coke and Imprison- 
 Sir Robert Phelips to the Tower, and Mr. Selden, Mr. Pym, members, 
 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.^ ' It is worthy of 
 observation,' remarks 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, 
 
 ^ Com. Journ. i. 668 ; Pari, or Const. Hist. v. 512, 513. 
 2 Pari, or Const. Hist. v. 525. 
 
554 * ^^^ Stuart Period, [Ch. 
 
 Essex, Warwick, Saye, 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.^ 
 Fourth Par- James's fourth and last Parliament met on the 19th 
 /623-4. February, 1623-4. The abandonment of the projected 
 Feb. 19— rnarriage 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- 
 plaisant. James on his part, exhibited a condescension 
 equally unusual. He submitted for their consideration and 
 advice, the matrimonial negotiations with Spain, and 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 £iQOf^oo) ; and eight citizens were appointed trea- 
 surers, and ten other selected persons a council of war, all 
 of whom were to be accountable for their conduct to the 
 Commons in Parliament.^ 
 
 Besides confirming their right to impeach the Ministers 
 of the Crown, by their proceedings against the Earl of 
 Middlesex, to which reference has been already 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- 
 Act against tions with Penal Laws and the Forfeitures thereof.' All 
 Monopolies, monopolies ; all licences to do, use, or exercise anything 
 against the tenor or purport of any law or statute, or to 
 agree or compound with others for any penalty or forfeiture 
 limited by any statute ; all grants or promises of the 
 benefit or profit of any forfeiture or penalty due on any 
 
 1 Hallam, Const. Hist. i. 368. 
 
 2 Pari, or Const. Hist. vi. 333. 
 
XIII.] James L to Petition of Right, 555 
 
 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.^ 
 
 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 concisely summed Constitu- 
 up by Hallam : ' The Commons had now been engaged of James's 
 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 mea-i 
 sure of importance, the late declaratory act against mono- 
 polies. But they had rescued from disuse their ancient 
 right of impeachment. They had placed on record a pro- 1 
 testation 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 exclusive privilege of determining , 
 contested elections of their members. Of these advantages, 1 
 some were evidently incomplete, and it would require the \ 
 most vigorous exertions of future Parliaments to realize 
 them.' 2 
 
 ^21 Jac. I. c. 3. It is under an exception contained in this Act that the Patents for 
 Crown has since exercised the right of granting letters-patent for new inven- inventions 
 tions, which would otherwise have been included in the general declaration 
 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, there- 
 after to be made, of the sole working or making of any manner of nexv manu- 
 factures 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. ' 
 
 2 Hallam, Const. Hist. i. 373. 
 
556 The Stuart Period, [Cm. 
 
 CHARLES/, At the age of 25, Charles I. succeeded to the throne on 
 1625-1649. ^YiQ death of his father, March 27th, 1625. 
 His political Nurtured from his infancy in the doctrine of the Divine 
 character, 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 while he imagined himself only concerned 
 in the defence of his own.' ^ 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 Clarendon. Unhappy in the choice 
 of his councillors — in Buckingham, Strafford, and Laud, 
 more especially — he certainly was, but it was his own in- 
 sincerity and innate propensity to intrigue which con- 
 tributed more than anything else to embitter the struggle 
 between him and his people, and which in the end effectu- 
 ally closed the door against reconciliation. ' 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 im- 
 plied reservation that such promise might be broken in case 
 of necessity, and that of the necessity he was the sole judge.'* 
 
 ^ Bolingbroke, i. 516. 
 
 2 Macaulay, Hist. Eng. i, [84]. 
 
XIII. ] James I. to Petition of Right. 557 
 
 The first fifteen months of Charles's reign saw two Par- FirstPariia- 
 
 1111-11 ^^^^^t of 
 
 liaments successively summoned and abruptly dissolved, charies I. 
 Guided by the pernicious counsels of Buckingham, 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 absolutely necessary, 
 and Charles expected from the Commons a large and un- 
 conditional 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 ;^ 140,000), together with the customs duties of ton- 
 nage and poundage for one year only, instead of for the King's 
 life as had for two centuries been the practice.^ 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. Professing them- 
 selves * 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 occasions,* they were equally 
 determined ' freely and dutifully to do their utmost endea- 
 vours 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 Par- Itsdissolu- 
 liament, and endeavoured to raise money upon Privy Seals ;2 i'2"i625^' 
 but within six months he again found it necessary to seek 
 Parliamentary aid. 
 
 One of the chief causes of the late dissolution had been Opposition 
 the desire of Charles to screen his favourite Buckingham h^m"'^^"^ 
 from an anticipated impeachment by the Commons. One 
 of the most learned and moderate members. Sir Robert Speech of 
 
 _^ Sir R. Cot- 
 ton. 
 
 * The Lords refused their consent to this limited grant, and Charles caused 
 the tonnage and poundage to be levied without any Parliamentary authority. 
 
 2 On the reception which * Privy Seals ' met with in some counties, see 
 Hamilton, Quarter Sessions, Elizabeth to Anne. 
 
558 The Stuart Period. [Ch. 
 
 Cotton, in a sij^nificant though apparently 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 29 Henry VL, the 
 removing from about the King any evil councillors. We 
 do not request a choice by name, as 14 Edward H., 3, 5, 
 II 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 V.I. ; or desire that 
 which Henry III. did promise 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 
 servants, 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, brought on by long security 
 and happy peace ; and not be led with young and simple 
 counsel.' ^ 
 Second Par- Care had been taken to prevent several of the most 
 liament, popular orators of the last Parliament from sitting in the 
 1625-6- new assembly by appointing them sheriffs ^ for the year : 
 1626 '^' ^"^ ^^^ manoeuvre failed in its effects. Irritated more 
 Impeach- than ever against the favourite, the new Parliament deter- 
 ment of mined to proceed to his Impeachment. Whilst the Com- 
 
 Buckmg- ^ . . 1 r 1 t 
 
 ham. mons were prepanng materials for the charge, the King 
 
 sent them word : * I must let you know that I will not 
 allow any of my servants to be questioned 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 direction and appointment and as his ser- 
 
 The King's vant. 'I wish,' he added in conclusion, *you would hasten 
 
 message. 
 
 ^ Pari, or Const. Hist. vi. 372. 
 
 2 Among them were Sir Edward Coke, Sir Robert PheMps, Sir Thomas 
 Wentworth (who had not yet gone over to the Court party), and Sir Francis 
 Seymour. 
 
XIII.] James I, to Petition of Right, 559 
 
 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/ 1 
 
 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 presented 
 their grievances and received the King's answer. Address- Reply of the 
 ing the King, they declared 'that it had been the ancient, ^^"^"^o^s. 
 constant, and undoubted right and usage of Parliament to 
 question and complain of all persons, of what degree soever, 
 found grievous to the Commonwealth, 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 businesses ; yet, at that time, out of extraordinary 
 respect to his person and care of his affairs, they had taken 
 the same into more speedy consideration,' and had agreed 
 to a resolution for a present supply.^ They subsequently 
 agreed to add a fourth subsidy, and prepared a Bill to 
 grant the King tonnage and poundage for life, but directed 
 that concurrently with it a remonstrance should be drawn 
 up against his taking those duties without the previous 
 grant of ParHament.^ 
 
 Buckingham was now formally impeached.* Two of the Member.' 
 managers on the part of the Commons, Sir John Eliot and mons^m- 
 Sir Dudley Digges, were committed to the Tower by the prisoned. 
 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 Carle- 
 ton, Vice-Chamberlain of the Household, 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 
 
 * Pari, or Const. Hist. vi. 430, 431. 
 2 Ibid. vi. 464-468. 
 
 * Pari, or Const. Hist. vii. 36. 
 
 * Supra, p. 543, «. [Cf. posty App.— Ed.] 
 
5^0 
 
 The Stuart Period, 
 
 [Ch. 
 
 Altaclc on 
 the privi- 
 leges of 
 the Lords. 
 1626. 
 
 Earl of 
 Arundel. 
 
 Earl of 
 Bristol. 
 
 Hasty disso- 
 lution. June 
 IS, 1626. 
 
 Commons compelled him to apologise, and a large number 
 of peers having assured the King that Sir Dudley Digges 
 had not spoken the words imputed to him, the two prisoners 
 were shortly afterwards released. 
 
 Not contented with attacking the privileges of the Com- 
 mons, Charles was imprudent enough to wantonly provoke 
 a quarrel with the House of Lords. For permitting his 
 son, without the King's licence, to marry a daughter of 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 imprisoned or re- 
 strained 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 was 
 the Earl of Bristol (John Digby), who having been Ambas- 
 sador to Spain at the time of Prince Charles's visit, had it 
 in his power to make most damaging disclosures concern- 
 ing 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 Com- 
 mons and by a former colleague in the late King's service. 
 To protect his favourite, and at the same time to thwart 
 the pretension of Parliament, involved in this attack upon 
 Buckingham, to control the appointment of the Ministers 
 of the Crown, Charles determined to dissolve Parliament 
 
XIII.] James I, to Petition of Right, 561 
 
 The Peers petitioned against this design, but the King 
 angrily replied, ' No, not a minute,' and the dissolution was 
 immediately declared.^ 
 
 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 Expedients 
 of raising money. Tonnage and poundage were arbitrarily money, 
 exacted ; commissions were issued to compound with re- 
 cusants for dispensing with the penal laws ; Privy Seals and 
 Benevolences were demanded from the rich ; and the sea- 
 port towns were ordered to furnish vessels armed and 
 equipped, the first attempt at ship-money. But that which A general 
 excited the greatest indignation was the levying and ex- manded : 
 acting 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 pun- and payment 
 
 .,,,.. . r ^ . enforced. 
 
 ished by impressment mto 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^ 
 Chief Justice Crewe, who refused to admit the legality of 
 the loan, was punished by dismissal from his office. 
 
 Of the many persons imprisoned throughout England for Darnels 
 refusing the loan, five only. Sir Thomas Darnel, Sir John November, 
 Corbet, Sir Walter Earl, Sir John Heveningham and Sir ^^27. 
 Edmund Hampden (cousin of John Hampden, afterwards 
 so celebrated) sued out their writs of Jiabeas 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 di scussion as to the sufficiency of such a 
 r eturn as a legal cause of detention, there being no charge 
 m ade agains t the prisoaers. Noy, Selden, and other emi- 
 nent counsel for the prisoners, argued with much ability and 
 
 ^ Pari, or Const. Hist. vii. 290. 
 
 o o 
 
562 
 
 The Stuart Period. 
 
 [Ch. 
 
 War with 
 France. 
 
 Third Par- 
 liament, 
 Session I, 
 March 17, 
 1627— June 
 26, 1628. 
 
 The King's 
 speech. 
 
 learning in favour of the chartered immunity of English sub- 
 jects from arbitrary detention, against the Attorney-General, 
 Sir Robert Heath, 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 — a custody which, 
 by this judgment, might be indefinitely prolonged, without 
 any specific charge being brought against the prisoners, or 
 any trial with its consequent condemnation or acquittal.^ 
 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 encountered 
 in providing for the war with Spain, Charles rashly entered, 
 at the instigation of Buckingham, upon a fresh war with 
 France. After the disastrous and humiliating failure of the 
 expedition of the favourite to the Isle of Rh6 (12 July — 
 12 Oct. 1626), the absolute necessity of a large supply for 
 carrying on the war forced the King to summon a third 
 Parliament. Previously to its assembling, it was deemed 
 advisable to release the persons imprisoned for refusing the 
 loan. Seventy-eight were thus set at liberty ; of whom 
 twenty-seven (Sir Thomas Wentworth, afterwards Earl of 
 Strafiford, being of the number) were immediately returned 
 to the new Parliament. Charles opened the session with a 
 proud and threatening speech. * There is none here,' he 
 said, ' but knows that common danger is the cause of this 
 Parliament, 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 
 
 ^ Darnel's case, 3 St. Tr. i. [Cf. Denman's Broom's Const. Law, p. 158, 
 stq.y and Note, p. 204, j^^. — Ed.] 
 
XIII.] James I. to Petition of Right, 563 
 
 other means, which God hath put into my hands, to save 
 that which the follies of some particular men may otherwise 
 hazard to lose. Take not this as a threatening (for I scorn 
 to threaten any but my equals), but an admonition 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 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' ^ 
 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 determined 
 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 Committee 
 subject in person and estate.' The principal matters dis- ^nfe"^^" 
 cussed were: (i) illegal exactions under the name of loans ; 
 (2) the arbitrary commitment of those who refused com- 
 pliance, 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 per- 
 sons ; and (4) the infliction of punishment by Martial Law. 
 After passing resolutions * That no freeman ought to be ^ommons' 
 imprisoned or restrained by command of the King, or the 
 Privy Council, or any other, except for lawful cause ex- 
 pressed in a lawful warrant ; and that the ancient and un- 
 doubted right of every freeman is, that he hath a full and 
 absolute 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, 
 
 1 Pari, or Const. Hist. vii. 339. 
 
 002 
 
 ^solutions. 
 
564 The Stuart Period, [Ch. 
 
 without common assent of Parliament,', the Commons ap- 
 plied 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 Houses, 
 Conference either in conference or in separate debate, was almost ex- 
 Lords. ^ clusively devoted to this momentous subject, which was 
 exhaustively argued by Selden, Coke, Littleton, Digges, 
 Noy, and other eminent lawyers on the part of the Com- 
 mons, and by the Attorney- General Heath, Serjeant Ash- 
 ley, 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 50,000), but deferred the pass- 
 ing 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 Coke warned the House to proceed by Bill. 
 Speech of < Was it ever known,' he said, * that general words were a 
 Coke. ^^"^ sufficient 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.' ^ 
 Petition of The Petition of Right was then drawn up by the Com- 
 jp\y the^^ mons. The Lords vainly proposed as an amendment : 
 Commons. < We humbly present this petition to your Majesty, not 
 Amendment ^^y ^\\h. a care of preserving our own liberties, but with 
 the Lords, due regard to leave entire that sovereign power wherewith 
 your Majesty is trusted for the protection, safety, and 
 which is dis- happiness of your people.' This insidious saving clause 
 re/ected by was firmly rejected by the Commons. * Let us look into 
 the Com- ^^ records,' said Mr. Alford, a member, *and see what 
 
 mons. 
 
 1 Pari, or Const. Hist. viii. 104. 
 
XIII.] James L to Petition of Right, 5^5 
 
 they are : what is " sovereign power ? " Bodin saith 
 that it is free from any conditions. By this we shall 
 acknowledge a regal as well as a legal power. Let us give 
 ^,hat 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 propounded 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 "sovereign" was not in Magna Charta, or in the 
 confirmations of it. If we grant this, by implication we 
 give a "sovereign 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 Rights 
 grounded on Acts of Parliament' In a further conference 
 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 Com- 
 mons in this Parliament,' he said, ' be it spoken without 
 
566 The Stuart Period. [Ch, 
 
 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 whicih 
 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, 
 notwithstanding, have not been able to prevail upon our 
 moderation, or to cause our passion to overrule our discre- 
 tions ; 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, execu- 
 tion of other offenders ; more liberties, new oaths of magis- 
 trates, judges, and officers, with many other provisions 
 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." ' 
 
 The King ^^ length the Lords passed the petition without any 
 consults the . , ^, . ,..,,, ^ , 
 
 Judges. material alteration, and it awaited only the Royal assent ta 
 acquire the force of law. In the meantime Charles sent 
 for the two Chief Justices, Hyde and Richardson, and 
 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 thereby 
 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 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 
 
XIII.] James I. to Petition of Right, 567 
 
 of justice to determine, which cannot be particularly dis- 
 covered until such case shall happen. And although the 
 petition be granted, there is no fear of conclusion as is inti- 
 mated in the question.' ^ This indirect promise of compli- 
 ance 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 The King's 
 
 . first answer. 
 
 answer to the Bill, before the Peers and Commons m Parlia- 
 ment. 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 tanta- 
 mount to a refusal to pass the Bill, the Commons gave vent 
 to their ill-humour by impeaching Dr. Mainwaring,^ 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 custom- The Royal 
 ary form — * Soit droit fait come est desird ' — which gave to [at length] 
 this second great fundamental compact between the Crown pven in due 
 and the Nation the sanction of an Act of Parliament. 
 
 ^ Hargrave MSS. xxxii. 97, cited by Hallam [Const. Hist. i. 391]. 
 
 2 Supra, p. 543, n. 
 
 [Mr. Alford's citation of Bodinus, supra, p. 565, bears out Hallam's view, 
 Int. to Lit. of Europe, 1839, ii. 204-5, ^-^ where he says, *I am much 
 inclined to believe that the perusal of Bodin had a great effect in England. . . 
 He furnished a store, both of arguments and of examples, which were not lost 
 on the thoughtful minds of our countrymen. ' This is exactly the use to which 
 Mr. Alford puts him. — Ed.] 
 
568 The Stuart Period. [Ch 
 
 * 
 
 PETITION OF RIGHT. 
 3 Car. I. c. I. (7 June, 1628.) 
 
 The Peticion exhibited to his Majestie by the Lords Spirituall 
 and Temporall and Commons, in this present Parliament 
 assembled, concerning divers Rights and Liberties of the 
 Subjects : with the King's Majestie's royall aunswere there- 
 unto in full Parliament. 
 
 To the King's most Excellent Majestie, 
 
 Illegal exac- Humbly show unto our Soveraigne Lord the King, the Lords 
 tions. Spirituall and Temporall, the Commons in Parliament assembled, 
 
 that whereas it is declared and enacted by a statute made in the 
 tyme of the raigne of King Edward the First, commonly called 
 Statutum de Tallagio non Concedendo} that no tallage or ayde 
 should be layd or levyed by the King or his heires in this realme, 
 without the good will and assent of the archbishopps, bishopps, 
 earles, barons, knights, burgesses, and other the freemen of the 
 commonaltie of this realme ; and by authoritie of Parliament 
 holden in the five-and-twentieth yeare of the raigne of King 
 Edward the Third,^ it is declared and enacted, that from thence- 
 forth no person should be compelled to make any loanes to the 
 King against his will, because such loanes were against reason and 
 the franchise of the land ; and by other lawes of this realme, it is 
 provided, that none should be charged by any charge or impo- 
 sicion called a benevolence, or by such like charge ; ^ by which 
 statutes before mencioned, and other the good lawes and statutes 
 of this realme, your subjects have inherited this freedome that 
 they should not be compelled to contribute to any taxe, tallage, 
 ayde, or other like charge, not sett by common consent in 
 Parliament. 
 
 11. Yet nevertheless of late divers commissions directed to 
 sundry commissioners in severall counties, with instruccions, have 
 issued; by meanes whereof your people have been in divers 
 places assembled, and required to lend certaine sommes of money 
 unto your Majestie, and many of them uppon their refusall so to 
 doe, have had an oath administred unto them not warrantable by 
 the lawes or statutes of this realme, and have been constrayned 
 to become bound and make appearance and give attendance before 
 your Privie Councell, and in other places, and others of them 
 
 1 Supray p. 272. 
 
 ' See Rot. Pari. ii. 238, No. 11. 
 
 3 I Ric. III. c. 2. 
 
XIII.] James L to Petition of Right. 569 
 
 have been therefore imprisoned, confined, and sondry other waies 
 molested and disquieted; and divers other charges have been 
 laid and levied upon your people in severall counties by lord 
 lieutenants, deputy lieutenants, commissioners for musters, justices 
 of peace and others, by commaund or direccion from your 
 Majestie, or your Privie Councell, against the lawes and free 
 customes of the realme. 
 
 III. And where[as] alsoe by the statute called the ' Great Arbitrary 
 Charter of the Liberties of England,' it is declared and enacted, imprison- 
 that no freeman may be taken or imprisoned or be disseised of ^^^*' 
 his freehold or liberties, or his free customes, or be outlawed or 
 exiled, or in any manner destroyed, but by the lawfuU judgment 
 
 of his peeres, or by the law of the land.^ 
 
 IV. And in the eight-and- twentieth yeere of the raigne of King 
 Edward the Third, it was declared and enacted by authoritie of 
 Parliament that no man, of what estate or condicion that he be, 
 should be put out of his land or tenements, nor taken, nor 
 imprisoned, nor disherited, nor put to death, without being brought 
 to answere by due process of lawe.^ 
 
 V. Neverthelesse, against the tenor of the said statutes, and 
 other the good lawes and statutes of your realme to that end 
 provided,^ divers of your subjects have of late been imprisoned 
 without any cause shewed ; and when for their deliverance they 
 were brought before your justices by your Majestie's writts of 
 habeas corpus^ there to undergoe and receive as the court should 
 order, and their keepers commaunded to certifie the causes of 
 their detayner, no cause was certified, but that they were deteined 
 by your Majestie's speciall commaund, signified by the lords of 
 your Privie Councell, and yet were returned backe to severall 
 prisons, without being charged with anything to which they might 
 make aunswere according to the lawe. 
 
 VI. And whereas of late great companies of souldiers and Billeting of 
 marriners have been dispersed into divers counties of the realme, soldiers and 
 and the inhabitants against their wills have been compelled to ^f^^^^^^^^- 
 receive them into their houses, and there to suffer them to sojourne 
 
 against the lawes and customes of this realme, and to the great 
 greivance and vexacion of the people."* 
 
 ^ 9 Hen. III. c. 29 ; sup'a, p. 137. 
 3 28 Edw. III. c. 3. 
 
 3 See zi Edw. III. c. 18, 38 Edw. III. c. 9, 42 Edw. III. c. 3, 17 Ric. II. 
 c. 6. 
 
 ^ 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 are annually 
 suspended by the Mutiny Act, which expressly gives permission to billet 
 soldiers in inns and victualling houses. 
 
570 The Stuart Period. [Ch, 
 
 Martial law. VII. And whereas alsoe by authoritie of Parliament, in the 
 five-and-twentieth yeare of the raigne of King Edward the Thirds 
 it is declared and enacted that no man shall be forejudged of life 
 or limbe against the forme of the Great Charter and the lawe of 
 the land ; and by the said Great Charter and other the lawes and 
 statutes of this your realme, no man ought to be adjudged to- 
 death, but by the lawes established in this your realme, either by 
 the customes of the same realme or by Acts of Parliament ; and 
 whereas no offender of what kinde soever, is exempted from the 
 proceedings to be used, and punishments to be inflicted by the 
 lawes and statutes of this your realme : neverthelesse of late tyme 
 divers commissions under your Majestie's Great Scale have issued 
 forth, by which certaine persons have been assigned and appointed 
 commissioners with power and authoritie to proceed within the 
 land, according to the justice of martiall lawe, against such 
 souldiers or marriners, or other dissolute persons joyning with 
 them, as should commit any murther, robbery, felony, mutiny, or 
 other outrage or misdemeanor whatsoever, and by such summary 
 course and order as is agreeable to martiall lawe, and as is used 
 in armies in tyme of warr, to proceed to the tryall and con- 
 demnacion of such offenders, and them to cause to be executed 
 and putt to death according to the lawe martiall. 
 
 By pretext whereof some of your Majestie's subjects have been 
 by some of the commissioners put to death, when and where, 
 if by the lawes and statutes of the land they had deserved death, 
 by the same lawes and statutes alsoe they might, and by no other 
 ought, to have byn judged and executed. 
 
 And alsoe sundrie greivous offenders, by colour thereof clayming 
 an exempcion, have escaped the punishments due to them by the 
 lawes and statutes of this your realme, by reason that divers of 
 your officers and ministers of justice have unjustlie refused or 
 forborne to proceed against such offendors according to the same 
 lawes and statutes, uppon pretence that the said offendors were 
 punishable onelie by martiall law, and by authoritie of such com- 
 missions as aforesaid ; which commissions, and all other of like 
 nature, are wholly and directlie contrary to the said lawes and 
 statutes of this your realme. 
 Remedies VIII. They doe therefore humblie pray your most excellent 
 
 prayed for: Majestic that no man hereafter be compelled to make or yeild 
 any guift, loane, benevolence, taxe, or such like charge, without 
 common consent by Acte of Parliament ; and that none be called 
 to make aunswere or take such oath, or to give attendance, or be 
 confined, or otherwise molested or disquieted concerning the 
 same or for refusall thereof; and that no freeman, in any such 
 manner as is before mencioned, be imprisoned or deteined ; and 
 that your Majestic would be pleased to remove the said souldiers 
 and marriners, and that your people may not be soe burthened 
 in tyme to come ; and that the aforesaid commissions, for 
 
XIII.] James /. to Petition of Right. 571 
 
 proceeding by martiall lawe, 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 afore- 
 said, lest by colour of them any of your Majestie's subjects be 
 destroyed or put to death contrary to the lawes and franchise of 
 the land. 
 
 All which they most humblie pray of your most excellent '^■^^^^^ ^ 
 Majestie as their rights and liberties, according to the lawes and //£^^^-jJ 
 statutes of this realme ; and that your Majestie would alsoe according to 
 vouchsafe to declare, that the awards, doings, and proceedings, the Imus and 
 to the prejudice of your people in any of the premisses, shall not statutes, 
 be drawn hereafter into consequence or example ; and that your 
 Majestie would be alsoe graciouslie pleased, for the further comfort 
 and safetie of your people, to declare your royall will and pleasure, 
 that in the things aforesaid all your officers and ministers shall 
 serve you according to the lawes and statutes of this realme, as 
 they tender the honor of your Majestie, and the prosperitie of 
 this kingdome. 
 
 Qua quidem peticione lectd et plenius intellectct, per dictum dominum 
 regent taliier est responsum in pleno parliamento, videlicet, Soit droit 
 fait come est desire. (Statutes of the Realm, v. 23, 24.) 
 
 The Commons were triumphant ; and grateful amidst 
 their rejoicings. They immediately passed a Bill granting Subsidies 
 the five subsidies already promised ; and were preparing S^^^*^^- 
 another giving the King tonnage and poundage for life, but Tonnage 
 delayed its passing in order to remonstrate against the con- poundage. 
 tinued illegal levying of those duties without the sanction 
 of Parliament, and to pray for the removal from office of 
 Buckingham, to whose evil influence they attributed all the 
 misfortunes of the kingdom both at home and abroad. To Parliament 
 prevent the delivery of this remonstrance, the King 26°june,^ ' 
 suddenly (June 26th) prorogued Parliament. 1628. 
 
 On the 20th of January, 1628-9, the two Houses xq- Session II 
 assembled. During the recess the assassination of2o^T~^.'_ 
 Buckingham by Felton (Aug. 23rd) had removed one great 10 March. 
 cause of contention between Charles and his people ; but •^^^go'^^^ 
 the King had continued, in violation of the Petition of for refusing 
 Right,^ to raise the Customs duties as before, and several tonnage and 
 
 poundage. 
 
 * The Customs duties were not mentioned by name in the Petition of Right, 
 
572 The Stuart Period, [Ch. 
 
 merchants, on refusal to pay, had been punished by dis- 
 traint of their goods and imprisonment. On appeaHng to 
 the Courts of Law, they were informed by the Judges that 
 the King's right was conclusively established by the 
 decision in Bates's case. 
 Copies of The natural irritation of the Commons was increased on 
 
 R!ght°circu- Clearing that the speech in which Charles, at the close of the 
 lated with last session, had claimed tonnage and poundage as his due, 
 
 King's first , ,, , ^ ^ .. ,, , ., , 
 
 answer an- had been entered on the Parliament roll together with the 
 
 nexed. Petition of Right, and that he had caused 1,500 copies of 
 
 that great Constitutional compact between the Crown and 
 
 the People to be circulated throughout the country with his 
 
 first and repudiated answer annexed, in addition to the 
 
 final answer which alone formed part of the statute.^ 
 
 Selden com- Selden at once complained to the House of the breach (as 
 
 House. ° ^ h^ alleged) of the Petition of Right in the case of the 
 
 merchants whose goods had been seized, and also of the 
 
 cutting off of a man's ears by an arbitrary judgment of the 
 
 Star Chamber. * Next,' he said, * they will take away our 
 
 arms, and then our legs, and so our lives ; let us all see we 
 
 are sensible of this. Customs creep on us ; let us make 
 
 a just representation hereof unto his Majesty.' The dispute 
 
 Question of as to tonnage and poundage was embittered and compli- 
 
 SwVk ^^^^^ ^>' ^^^ ^^^^ ^^^^ Henry Rolle, one of the merchants 
 
 but it might fairly be contended that there were included in the words * taxe or 
 such like charge ' which that statute had declared that no man should be com- 
 pelled to pay without common consent by Act of Parliament. The word ' tax ' 
 had actually been employed officially, to include Customs duties. (See Edinburgh 
 Review, Jan. 1876.) In the remonstrance which the Commons were prevented 
 from delivering by the prorogation, they had declared that the levying of 
 tonnage and poundage without consent was illegal by the Petition of Right. 
 Charles, however, relied on the decision of the Judges in Bates' case {supra, 
 p. 519), and the legal question was certainly not free from doubt. 
 
 ^ State Papers [Dom. 1628-9, P- 456], cxxxiii. 4 ; S. R. Gardiner, Pers. 
 Gov. of Ch. I., i. 46. [Sir Francis Nethersole writes to the Queen of 
 Bohemia (State Papers, loc. cit.), Jan. 24, 1629, that the House of Commons 
 is much discontented with the printing of the Petition of Right with the several 
 answers given thereto, and his Majesty's speech the last day of the session, it 
 having been first printed with the answer. Droit soit fait commeilest disiri, and 
 that impression afterwards suppressed. But that which troubleth them most. Sir 
 Francis adds, is the recording that last speech of his Majesty in the Clerk's 
 Book of the Commons House since the recess. The Commons evidently felt 
 strongly that the authenticity of their Records was at stake. — Ed.] 
 
xiiL] James I. to Petition of Right, 573 
 
 whose goods had been seized, was a member of the House. 
 At this period, privilege of Parliament was held to protect 
 not only the persons but the goods of members from arrest 
 and although owing to the time (the middle of the Parlia- 
 mentary recess) when the seizure in Rolle's case had been 
 effected, it could only be brought technically within the 
 privilege by means of a legal fiction, the Commons were 
 disposed to resent the matter as an attack on their liberties : 
 and while one member, Phelips, moved for a Committee on 
 the whole question of the levy of tonnage and poundage, 
 another, Littleton, desired that * the parties be sent for that 
 had violated the liberties.' ^ The King now thought it Charles re- 
 prudent to attempt to allay the rising storm. Sending for j-jght to levy 
 the two Houses to Whitehall, he explicitly renounced all tonnage and 
 
 ^ •' poundage. 
 
 claim to levy tonnage and poundage as of right. ' It ever 
 was, and still is my meaning,' he told them, * by the gift of 
 my people to enjoy it, and my intention in my speech at 
 the end of the last session was not to challenge tonnage 
 and poundage of right, but for expedience de bene esse^ 
 shewing you the necessity, not the right, by which I was to 
 take it until you had granted it unto me ; assuring myself, 
 according to your general profession, that you wanted time 
 and not good will to give it me.' ^ This politic speech 
 made a most favourable impression, and two days after- 
 wards a proposal was made by Sir John Coke to bring in 
 a Bill granting tonnage and poundage to the King ; but 
 there still remained a grievance which the Commons had 
 even more at heart than illegal taxation, and the latter 
 question was postponed until the recent innovations in 
 religion had been discussed. 
 
 The position taken up by the Commons alike in Politics Conserva- 
 and Religion was a conservative one. In Politics, they o7die°Com" 
 sought to preserve the free English Constitution as it had monsin 
 
 • 1 - 1 . . • r 1 ^ , t politics: 
 
 existed prior to the despotic practices of the Tudors and 
 the despotic theories as well as practices of the Stuarts. 
 
 1 Gardiner, Pers. Gov. of Ch. I., i. 47, 48. 
 
 2 Contarini's Despatch, Venetian MSS., cited by Gardiner, Pers. Gov. of 
 Ch. I., i. 50. 
 
574 '^^^ Stuart Period. Ch. 
 
 and in re- In Religion, they adhered to the narrow (^alvinistic theology 
 which had been prominent in the National Church from 
 the Reformation to the beginning of the seventeenth 
 century. This they regarded as the orthodox doctrine, 
 and considered it to be supported by the Prayer Book, the 
 Catechism, the Homilies, the writings of Bishop Jewel, the 
 Lambeth Articles of 1595, the Resolutions of the Synod of 
 Dort in 161 8, the uniform consent of writers whose works 
 had been published by authority, and by the submission 
 enjoined by the two Universities upon the opponents of 
 the Lambeth Articles. They complained of the spread of 
 Popery and Arminianism ; the removal of communion- 
 tables to be set up as altars at the eastern end of churches ; 
 the placing of candlesticks on them ; and the obeisance 
 made towards them ; the ordering that congregations 
 should stand up at the singing of the Gloria Patri, and 
 that women coming to be churched should wear veils ; the 
 setting up of pictures and lights and images in churches, 
 praying towards the east, crossing and other devout but to 
 them objectionable gestures.^ 
 Position In December 1628, at Laud's suggestion, the King had 
 
 King and ^ endeavoured to silence all religious controversy by issuing 
 Laud in the a new edition of the Articles of Religion, prefaced by a 
 controversy. Declaration (which is still printed in the Book of Common 
 Prayer) directing that thereafter no man should either in 
 writing or preaching put his own sense or comment as the 
 meaning of the Articles, but should take them in their literal 
 and grammatical sense. He at the same time inferentially 
 repudiated the right of Parliament to deal with religious 
 questions, by declaring that to the King, as Supreme 
 Governor of the Church, and to the Convocation, acting 
 by his leave and with his approval, such matters exclu- 
 sively belonged. But while professing to act impartially, the 
 King's sympathies were unmistakeably shown not only by 
 his close alliance with Laud, but his ostentatious bestowal 
 of promotion upon those of the clergy who had rendered 
 
 1 Pari, or Const. Hist. iii. 483; Gardiner, Pers. Gov. of Ch. I., i. 87. 
 
XIII.] James I. to Petition of Right, 575 
 
 themselves notorious, and incurred the animosity of the 
 House of Commons, by their simultaneous advocacy of 
 anti-Calvinistic doctrines in the Church and of the Divine 
 right of kings in the State. Dr. Montague, whose Appello 
 Caesarem in 1625 had been condemned by the Commons 
 as containing matters contrary to the Thirty-nine Articles, 
 and who in 1627 had been foremost in inculcating the duty 
 of paying the forced loan, was promoted by the King to a 
 bishopric shortly after the prorogation of Parliament in 
 1628 ; and at the same time Dr. Mainwaring, who had but 
 recently been impeached by the Commons and condemned 
 by the Lords for his advocacy, in the pulpit and the press, 
 of the right of the King to tax his subjects without the 
 consent of Parliament,^ was rewarded with a rich living, 
 and ultimately advanced to the bishopric of St. David's. 
 The idea of Toleration and Religious liberty was as Toleration 
 yet unthought of by either King or Parliament, and the by King, or 
 Commons, having declared their interpretation of the Parliament. 
 Articles of religion to be the only true one, proceeded to 
 summon the authors of the ceremonial innovations to 
 answer at the bar of the House. 
 
 In the meantime the question of tonnage and poundage Question of 
 was again taken up, and, contrary to the advice of Pym, pound^age"^ 
 who wished the matter to be dealt with on the broad 'resumed, 
 national basis of the illegality of taxation without consent, 
 the Commons resolved to give prominence to the breach 
 of privilege in Rolle's case, and accordingly summoned the The ofificers 
 custom-house officers who had seized that Member's goods ^iz*^(j^ 
 to appear and answer for their contempt. The King Rolle's 
 refused to allow his officers to be questioned for obedience moned. 
 to his orders, and directed the House to adjourn for a few The King 
 days until the 2nd of March.^ During the short recess luow them 
 attempts were made to come to some private arrangement tp be ques- 
 with the leaders of the Commons, but these failing, the orders'the 
 House, at its re-assembling on March 2, was informed by ^?"se to 
 
 ^ Supra, p. 543, n. 
 
 2 Gardiner, Pers. Gov. of Ch, L, i. 89. 
 
mons refuse. 
 
 the House. 
 
 576 The Shcart Period. [Ch. 
 
 A further the Speaker, Sir John Finch, that the JfCing again required 
 
 ordered!"^" them to adjourn, this time to the loth. The right of the 
 King to order an adjournment, which had always been 
 admitted by the Lords in reference to their own house, had 
 never been acquiesced in by the Commons, who, while 
 complying with the King's wishes, had always been careful 
 
 The Com- to make their adjournment their own formal act. When 
 the question of adjournment was now put by the Speaker, 
 a chorus of Noes resounded from every side. Sir John 
 Eliot, who, anticipating the adjournment and speedy disso- 
 lution of Parliament by the King, had prepared a protesta- 
 tion on the subjects of religion and taxation, which, if only 
 passed by the House before its adjournment, would go forth 
 to the country as an appeal against the King's arbitrary 
 
 Tumult in proceedings, rose to speak. He was interrupted by the 
 Speaker, who, saying he had the absolute command of the 
 King to leave the chair if any one should attempt to 
 address the House, rose also, but was at once thrust back 
 into his seat by Holies and Valentine. The whole House 
 was now in an uproar. Some of the Privy Councillors 
 present rushed to the assistance of the Speaker, who broke 
 away for a moment, but only to be again seized and forced 
 into the chair, 'God's wounds,' exclaimed Holies, 'you 
 shall sit till we please to rise.' At the order of the House 
 the door was locked by Sir Miles Hobart, who placed the 
 key in his pocket. Eliot proposed that three resolutions, the 
 substance of which he explained, should be formally put to 
 the vote. Both the Speaker and the clerk refused. A 
 confused and stormy debate ensued, and Eliot, despairing of 
 getting the resolutions passed, had thrown them into the fire, 
 when, just as the King's guard was approaching the House to 
 effect a forcible entry. Holies, who had hastily rewritten the 
 resolutions from memory, read them to the House. They 
 were carried by acclamation, and the House, having voted 
 its own adjournment, the door was thrown open.^ 
 
 1 Nicholas' Notes of the Session of 1629 ; State Papers, Dom. [1628-9, 
 p. 485], cxxxviii. 5, 6, 7. [See note, next page, on these State Papers. — Ed. J 
 
XIII.] James /. to Petition of Right, 577 
 
 The three resolutions declared: (i) that the introducers The three 
 
 ,.. r T>. A ... Resolutions, 
 
 of innovation in religion, or of Popery, or Arminianism, or 
 
 other opinions disagreeing from the true and orthodox 
 
 Church ; and (2) all who should counsel or advise the 
 
 taking and levying of the subsidies of tonnage and poundage, 
 
 not being granted by Parliament, or should be actors or 
 
 instruments therein, should be reputed capital enemies 
 
 to the Kingdom and Commonwealth; and (3) that all 
 
 merchants or others who should voluntarily pay the said 
 
 subsidies, should be reputed betrayers of the liberties of 
 
 England, and enemies to the same. 
 
 The House at its rising had adjourned to the roth of Parliament 
 
 March. On that day the King dissolved Parliament in 10 March, 
 
 person, with an angry reference to the ' disobedient carriage [1628-9]. 
 
 of the Lower House,' and a threat that * the vipers amongst 
 
 them should meet with their reward.' ^ 
 
 [Of the Papers cited p. 576, n. i, No. 5 contains Notes concerning adjournments 
 of the House of Commons by Royal command, extracted out of the Journals of 
 that House : No. 6 is a relation of what passed in the House of Commons on 
 delivering his Majesty's message for adjourning the House, and No. 7 is another 
 account of the same occurrences. The proclamation of 2nd March, 1629, in 
 which Charles announces his intention to dissolve Parhament is couched in 
 language substantially identical with that actually spoken at the dissolution on 
 the loth March, the grounds alleged for the dissolution being the * disobedient 
 and seditious carriage of certain ill-affected persons of the House of Commons,' 
 whereby the King and his regal authority and commandment have been * so 
 highly contemned as our Kingly office cannot bear, nor any former age parallel.' 
 State Papers, loc. cit.. No. 2, Proc. Car. I., 203. — Ed,] 
 
 1 Pari, or Const. Hist. viii. 333. . r . / 
 
 p p 
 
578 
 
 CHAPTER XIV. 
 
 THE STUART PERIOD. 
 
 II. FROM THE PETITION OF RIGHT TO THE RESTORATION. 
 (1629- 1 660.) 
 
 Determina- On the dissolution of his third Parliament, Charles I. 
 
 Charies I appears to have come to a settled determination to over- 
 
 to govern throw the old Parliamentary Constitution of England by 
 
 Parliame^nt, governing, for the future, without the intervention of the 
 
 National Council, so long as that Council should presume 
 
 to claim an independent, and, as the representative of the 
 
 collective Nation in opposition to the individual King, a 
 
 preponderating, voice in the government of the State. 
 
 intimated in In an arrogant Proclamation, referring to certain false 
 
 tion, 27 Mar. rumours that he was about again to call a Parlia- 
 
 1629. ment, he announced that * the late abuse having for the 
 
 present driven him unwillingly out of that course, he 
 
 should account it presumption for any to prescribe any 
 
 time unto him for Parliaments, the calling, continuing, and 
 
 dissolving 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' ^ Even 
 
 before the actual dissolution, the King had, hastened to 
 
 Imprison- take vengeance on the Opposition 'vipers.' Sir John 
 
 J^lTn Eliot ^^^^^' Selden, Holies, Long, Valentine, Strode, and other 
 
 Selden, and eminent members of the Commons, were summoned before 
 
 bersofthe" the Council and committed to prison. Against Eliot, 
 
 Commons. HoUes, and Valentine an information was filed in the 
 
 ^ Rymer, xix. 62 [viii. pt. iii. 36, in the Hague ed. — Ed.] 
 
Ch. XIV.] Petition of Right to the Restoration. 579 
 
 King's Bench. On suing out their writ of habeas 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 punish- 
 able in any other place. This demurrer, which raised the 
 great question of Parliamentary 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,ooo. Holies, 
 £ 1,000, and Valentine, ;^500.^ Other distinguished leaders Some of the 
 of the Opposition had been brought over to the king's side par^y accept 
 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 afterwards Lord 
 Deputy of Ireland. 
 
 Surrounded by these new counsellors, and guided chiefly Eleven years 
 by the advice of Laud and Wentworth, Charles now ^^^J^PJ'^^jJj^ 
 entered upon a career of despotism which he maintained [1629-40.] 
 for eleven years. This period of Personal government, 
 during which the King governed without the Parliament, 
 was. Constitutionally speaking, as much a Revolutionary 
 period as that during which, later on, Parliament governed 1 
 without the King. It should always be borne in mind that p 
 it was the aggression of Charles which provoked the counter- I 
 aggression of the Parliament. 
 
 To raise a revenue, Charles had recourse to various Expedients 
 exactions, many of which were clearly illegal, and nearly ^*^ ^^^^^ ^ 
 
 ' ■' y t> J J revenue. 
 
 1 Eliot died in prison some years afterwards (27 Nov. 1632), universally re- 
 garded as a martyr in the cause of liberty. (See supra, p. 339, and Forster's 
 Life of Sir John Eliot.) The animosity of Charles was continued even after 
 Eliot's death. He refused permission to transport his body to Port Eliot. 
 * Let Sir John Eliot,' was the King's reply, ' be buried in the church of that 
 parish where he died.' S. R. Gardiner, Pers. Gov. of Charles L, i. 274. 
 
580 The Stuart Period. [Ch. 
 
 all odious and vexatious. * Obsolete Idws,' says Clarendon, 
 *were revived and rigorously executed/ and * unjust pro- 
 jects of all kinds, many ridiculous, many scandalous, all 
 Tcnnageand very grievous, were set on foot/ Tonnage and poundage 
 poun age. ^^^ other duties were rigorously enforced by the Royal 
 Monopolies, authority alone. Monopolies, abolished by Act of Parlia- 
 ment in the last reign, were re-established and applied to 
 Compulsory almost every article of ordinary consumption. The ancient 
 nig 00 . pi-gj-ogative of compelling tenants in chivalry to receive the 
 order of knighthood or pay a fine was revived, and ex- 
 tended to all men of full age seised of lands or rents (by 
 whatever tenure) of the annual value of £Afy or more. 
 ' By this expedient,' says Clarendon, ' which, though it had 
 a foundation in right, yet in the circumstances of proceed- 
 ing was very grievous, the King received a vast sum of 
 money from persons of quality, or of any reasonable con- 
 Inquisition dition, throughout the kingdom.'^ Commissioners were 
 estates. ^^ ° appointed to search out and compound for defects in titles 
 Forest laws ^^ estates ; and an attempt was even made to revive the 
 revived. 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.^ ' This burthen,' says Clarendon, ' lighted most 
 upon people of quality and honour, who thought them- 
 selves above ordinary oppression, and were like to remember 
 it with more sharpness.' ^ 
 Royal Pro- In lieu of Acts of Parliament, Royal Proclamations, 
 more numerous and oppressive than those which had ex- 
 
 * Hist. Rebellion, i. 67 ; supra, p. 162. 
 
 2 On this ground Lord Salisbury was fined ;^20,ooo; Lord Westmoreland, 
 ;^i9,ooo; Sir Christopher Hatton, ;^i2,ooo ; Sir Lewis Watson, ;^4000 ; and 
 many other persons in smaller amounts. — StrafiFord's Letters, ii. 1 17. Cobbett's 
 Pari. Hist. ii. 642. 
 
 ^ Clarendon, Hist. i. 16. 
 
 clamations. 
 
XIV.] Petition of Right to the Restoration, 581 
 
 cited so much opposition under James I., were issued from 
 time to time and declared to have the force of laws. The Servility of 
 Common Law Judges, with a few honourable exceptions, up- ^ •'^ ^^*' 
 held by their decisions the illegal acts of the King ; whilst 
 the irregular tribunals, the Courts of Star Chamber and 
 High Commission, by extending their authority and exer- 
 cising 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 desig- 
 nated as a Reign of Terror.^ 
 
 Of the barbarous and tyrannical punishments inflicted by Punishments 
 the Court of Star Chamber it will be sufficient to refer to Jhe^siL ^ 
 a few only of the more celebrated instances. (i) John Chamber. 
 Williams, Bishop of Lincoln, who, as a favourer of the gfs^ho^^Vii- 
 Puritans, had excited the enmity of Laud, had received liams and 
 certain letters from Dr. Osbaldiston, the master of West- Jton^^^^^'^' 
 minster School, wherein some contemptuous nickname was 
 applied to the Archbishop. For concealing (not publishing) 
 this libellous letter, Williams was condemned, in 1637, to 
 pay ^5000 to the King, and ;^3000 to Laud, and to be im- 
 prisoned 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 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 
 
 * * For the better support of these extraordinary ways,' says Lord Clarendon, 
 * and to protect the agents and instruments who must be employed 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 understanding of wise men, never more in 
 danger to be destroyed. ' — Hist. i. 68. 
 
582 The Stuart Period, [Ch. 
 
 Leighton. in Dean's Yard.^ (2) Alexander Leighton, a Scottish 
 divine (whose son afterwards became Archbishop of 
 Glasgow) was sentenced, in 1630, for writing an able but 
 scurrilous book entitled *An Appeal to Parliament, or 
 Sion's Plea against Prelacy,' 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 Sedi- 
 tion), to have the whole of this repeated the next week at 
 
 Lilburne. Cheapside, and to suffer imprisonment for life.^ (3) In 
 1638, for distributing pamphlets against the Bishops, John 
 Lilburne, a London apprentice, (who afterwards 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 years afterwards by, the Long" 
 
 ^ Osbaldiston managed to keep out of the way, but the Bishop was im- 
 prisoned until released, with other political prisoners, in 1640. 
 *Sion^s Plea ^ State Tr. iii. 383. * Sion's Plea ' had been elaborated by Leighton out of 
 aminst Pre- ^ petition drawn up by him after the prorogation in 1628, for presentation to 
 lacy,' Parliament at its next meeting, and to which he obtained five hundred signa- 
 
 tures, including those of several members of the House of Commons. It 
 assailed the Bishops in unmeasured terms. They had promised the late King 
 'absolute liberty to do what he list,' if he would only support their authority. 
 This was not so very far from the truth. But Leighton weakened his case 
 against them as supporters of a Regal autocracy by laying to their charge 
 almost every evil which existed in the world ; denouncing them as ' men of 
 blood,' persecuting the saints, * knobs and wens of bunchy popish flesh,' the 
 * trumpery of Antichrist.' The 'Plea' was something more, however, than a 
 mere attack on the Bishops. It was an appeal to political Presbyterianism, 
 more especially as represented in the two Houses of Parliament, to remove the 
 evil counsellors of the King, and to resist a dissolution. * Put the case,' said 
 Leighton (p. 207), 'that the good harmless King be a captivated Joash by 
 Athaliah's Arminianised and Jesuitical crew, or a misled Henry VI., dispos- 
 sessed of his faithfullest friends and best counsel by the pride of the French ; 
 or a Henry III., overawed by a devilish domineering favourite ; or an Ed- 
 ward VI., overpoised and borne down from his good purposes to God's glory 
 and the good of the State by the halting and falsehood of the prelates and 
 their Romish confederacies, so that such a King, though he held the sceptre, 
 neither can be free himself nor execute his designs because the sons of the men 
 of sin are too hard for him. ' ' The great Council of State, ' he continued 
 (p. 240), ' must remove the wicked from the head, and take away the corrupt- 
 ing and corroding dross from the silver excellency and excellent argentry of the 
 King . . . Strike neither at great nor small, but at these troublers of Israel. 
 Smite that Hazael in the fifth rib.' In conclusion he invited Parliament to 
 resist a dissolution, asserting (p. 337) that it was the duty of its members to 
 stay in the ship, and that ' every dissolution of Parliament without real inform- 
 ation is against right, reason, and record.' Gardiner, Pers. Gov. of Charles I., 
 i. 177-180. 
 
XIV.] Petition of Right to the Restoration, 583 
 
 Parliament. (4) But the case which excited the e^reatest J^ynne, 
 
 . ,. ^^\ ^ r ^ T^ , Burton, and 
 
 popular indignation was that of Prynne, Burton, and Bast- Bastwick. 
 wick, who were together brought before the Star Chamber 
 in 1637. William 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, about ten weeks after the printing of this book 
 had been completed, took part in a masque at Court. A pas- 
 sage reflecting in the strongest terms on female actors was 
 now, unfairly as he contended, alleged to be an intentional 
 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 his University (Oxford), 
 and to be imprisoned until he should make entire sub- 
 mission. While in prison he managed to elude the pro- 
 hibition of pen, ink, and paper, and published some fresh 
 works in defence of his principles which caused him to be 
 now again brought before the Star Chamber. The offence 
 of Henry Burton, a London rector, was the publication of 
 two^'sermonSj^and^ also a"pamphlet entitled *News from 
 Ipswich,' containing charges of Romish innovations against 
 Wren, Bishop of Norwich.^ John Bastwick, a physician of 
 Colchester, and formerly of Emmanuel CollegB7Cambridge, 
 was already, like Prynne, undergoing punishment for a 
 former offence. Some years previously he had published a 
 
 ^ Prynne denied any reference to the Queen, and argued that she could not 
 have been aimed at in a publication the last proof-sheets of which had been 
 corrected ten weeks before she acted in the court masque. But it appears by 
 the newsletters of Salvetti, the Florentine agent, that the intention of the Queen 
 to act was known about the time Prynne was completing his proof, and the 
 offending passage appears on the last page of the book then under revision. 
 See Gardiner, Pers. Gov. of Ch. I., ii. 36. 
 
 2 [Green, Hist. Eng. People, iii. 181, notes that Burton called on all Christians 
 to resist the Bishops as ' robbers of souls, limbs of the beast, and factors of Anti- 
 christ.' This is rather stronger language than the text indicates, and no doubt 
 constituted an incitement to disturbances which it would have been hard to 
 distinguish from rebellion, and it is scarcely to be wondered at that Laud 
 should have included Burton among the 'trumpets of sedition.' It seems 
 somewhat curious that Green should apparently class Prynne, Burton, and 
 Bastwick together, op. cit., iii. 182, as ' silly zealots. ' — Ed.] 
 
584 The Sttiai't Perioa. [Ch. 
 
 Latin work called Elenchus Papismi et Flagellum Episco- 
 porum, 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 im- 
 prisoned until he should make recantation. While in gaol 
 he published a defence of himself and an acrimonious 
 attack upon his prosecutors, and for this publication 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.^ 
 Case of Skip Shortly before these proceedings against Prynne, a 
 '"^•^* 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 
 
 1 Brodie, Hist. Brit. Empire, ii. 334. Several other instances of the merci- 
 less punishments inflicted by the Star Chamber are enumerated in the 4th 
 chapter of Mr. Brodie's 2nd vol. 
 
 2 [See the Case and Note in Denman's Broom's Cottst. Law, pp. 303-405. — 
 Ed.] 
 
XIV.] Petition of Right to the Restoration. 585 
 
 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 First writ of 
 
 the magistrates of London and other ports ordering them 2oOc?°i634. 
 
 to provide a certain number of ships of war of a specified 
 
 tonnage and equipage, to be ready at Portsmouth on the 
 
 1st of March, and empowering them to assess all the 
 
 inhabitants, according to their substance, for the sum 
 
 rp^yj^fiJfrvrJ-jiQ fittin g out _and maintenance of the ^ ships 
 
 and their cre ws for the period of six months.^ 
 
 Notwithstanding the remonstrances of London,^ and 
 some other towns, obedience to these ' new writs of an old 
 edition ' was enforced by the imprisonment of such persons 
 as refused to pay their share of the assessment, and the 
 experiment proved a great temporary success. ' In this 
 way,' wrote the Venetian ambassador to his government, 
 * did this most important affair begin and end. If it does 
 not altogether violate the laws of the realm, as some think 
 it does, it is certainly repugnant to usage and to the forms 
 hitherto observed.' ^ In effect, the levying of ship-money 
 was the imposition of a ' tax ; ' for the ships specified in 
 the writs were of such a size as to render it impossible for 
 any port in the kingdom (except London) to furnish them 
 in kind as formerly, and the demand resolved itself into a 
 demand for so much money. It was therefore, in its essence, 
 a distinct violation of the Petition of Right, notwithstand- 
 
 ^ Rushworth, ii. 257. 
 
 2 The Lord Mayor was summoned before the Council, reprimanded, and 
 ordered to return and bring his fellow-citizens to a better frame of mind. The 
 City lawyers were then sent for and told ' to take heed how they advised the 
 City in a case so clear for the King,' They objected that the guardianship of 
 the seas was already provided for by Tonnage and Poundage. ' It is true,' 
 replied the Earl of Manchester with superciHous arrogance (or sophistic special 
 pleading), ' this writ hath not been used when Tonnage and Poundage was 
 granted. Now it is not [granted], but taken by prerogative, therefore this writ 
 is now in full force.' Gardiner, Pers. Gov. of Ch. I,, ii. 89. 
 
 3 Ibid. ii. 290. 
 
586 The Stuart Period, [Ch, 
 
 ing the show of precedent in its favour. We now know 
 that the fleet was being prepared in furtherance of a secret 
 Treaty which Charles had been negotiating, the ultimate 
 object of which was the overthrow of the Dutch Republic 
 and the division of its soil between Spain and England.* 
 But there was also a real foundation for the pretext for 
 arming with which the King endeavoured to hoodwink the 
 nation, and even his own Council, in the 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 boldness of the Dutch, who had taken advantage 
 of the naval weakness of England to dispute the ancient 
 claim of the English Crown to the dominion of the Narrow 
 ^ Seas.2 
 Second writ Noy died soon after suggesting the expedient of ship- 
 money," money, but the Lord Keeper Finch improved upon the 
 4 Aug. 1635. 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.' * 
 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 
 
 ^ Clarendon, State Papers, i. 109, 112, 126. 
 
 2 It was to uphold these claims of the Dutch that Grotius wrote his cele- 
 brated Mare Liberum, which was answered by Selden in his Mare Clausuniy 
 proving that sovereignty over the Narrow Seas had been exercised by England 
 from the earliest times. [Mr. Lawrence, late Deputy Whewell Professor of 
 International Law in the University of Cambridge, has well shewn, in an 
 article in the Law Magazine and Review, No. ccli., for February, 1884, 
 reprinted in his Essays On Some Disputed Questions in Modern International 
 Law (1884-5), th^t^ '*^^^ famous Mare Clausufn dSid Mare Liberum controversy 
 has ended by the victory of the advocates of Mare Liberum all alonp^ the 
 line.'— Ed.] 
 
 3 Hist. i. 68. 
 
XIV.] Petition of Right to the Restoration, 587 
 
 the Treasurer of the Navy for his Majesty's use, with 
 directions to enforce payment by compulsory process. 
 The collection of the money met with a good deal of Resistance 
 resistance in the country. The chief-constables of the JP^^^Jl^ ^°^^^*^" 
 Hundred of Bloxham, Oxfordshire, replied to the warrant 
 from the Sheriff of the county directing the assessment, 
 that they had ' no authority to assess or tax any man,' and 
 that they did not conceive the warrant gave them any 
 power to do so. Ultimately the Sheriff was obliged to 
 make the assessment himself. Similar difficulties occurred 
 also in Essex and Devonshire. In some places the in- 
 cumbents, churchwardens, and overseers utterly refused to 
 produce their books. When cattle were distrained in default 
 of payment no purchasers could be found, and the Council 
 found it necessary to direct them to be sent to London for 
 sale by the King's officers.^ 
 
 Richard Chambers, a London merchant, who had already 
 suffered for his resistance to the imposition of Tonnage 
 and Poundage, brought an action in the King's Bench 
 against the Lord Mayor for imprisoning him on refusal to 
 pay the assessment. The defendant pleaded the King's 
 writ as a special justification, and the Judges refused even 
 to allow the question of right to be argued, Berkeley, one 
 of their number, declaring that 'there was a rule of law 
 and a rule of government, and that many things which 
 might not be done by the rule of law might be done by 
 the rule of government' ^ 
 
 The issuing of a third writ of ship-money, affecting, like Third writ 
 its immediate predecessor, the whole of England, made it ^}^^^^' 
 
 r ^ & » money, 
 
 but too clear that it was the King's intention to retain this 9 Oct. 1636. 
 innovation as a permanent tax, to be levied at his pleasure 
 without the consent of the nation. The opposition to the 
 writs, hitherto restricted to particular localities, now assumed 
 a general aspect, and was taken up by men of the highest 
 rank and of undoubted loyalty. The Earl of Danby (Henry 
 
 1 Gardiner, Pers. Gov. ii. 190, 191, 201, 202. 
 
 2 Rushworth, ii. 323. 
 
588 The Stuart Period. [Ch. 
 
 Danvers), an old servant of the Crown, wrote to the King, 
 I warning him of the universal discontent of his subjects. 
 ^ The new levies of money, he said, were repugnant to the 
 fundamental laws of England, and to the privileges which 
 their ancestors and they themselves had till the present 
 time enjoyed. It was of the manner in which the money 
 was raised, not of the amount, that they complained. The 
 only way for the King to give satisfaction to his subjects 
 was by summoning Parliament.^ The Earl of Warwick 
 (Robert Rich) addressed him in much plainer language, 
 and several peers drew up a protestation to the King 
 which, however, does not appear to have been actually 
 presented.^ But Charles had no intention either of calling 
 a Parliament or of desisting from the exaction of the 
 obnoxious tax, which produced an annual revenue of over 
 ;^200,ooo. 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 
 Hampden's means to elude the discussion. At length, in 1637, John 
 
 refusal to __ , , /-•/••it t 
 
 pay. Hampden, a gentleman of ancient family and good estate 
 
 in Buckinghamshire, 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,^ pro- 
 ceedings 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 of 
 fame in the kingdom : but then he grew the argument of 
 all tongues, every man inquiring who and what he was that 
 durst, on his own charge, support the liberty and pros- 
 perity of the kingdom.' * The King awaited the decision 
 
 ^ Gardiner, Pers. Gov. ii. 315. 
 
 3 Gardiner, Pers. Gov. ii. 316. 
 
 3 The sum of 20j. was assessed on lands in Great Missenden, and another 
 sum of 315. dd. on his lands in Great Kimble. 
 
 * Hampden, who was a cousin of Oliver Cromwell, had sat in Charles's 
 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 
 
XIV.] Petition of Right to the Restoration. 589 
 
 of the Judges with confidence. Some time previously he Extra- 
 had privately submitted to them the following questions : opinTo^ns of 
 (i) ' When the good and safety of the kingdom in general ^^^^^^^5^' 
 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 } (2) 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 Croke 
 and Hutton, who, however, subscribed their names on the * 
 principle that the judgment of the majority was that of 
 the whole body) answered both questions 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.^ 
 
 which should be read twice a year against those that do 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 ParHament he sat for Buckinghamshire, and 
 on the breaking out of the Civil War, took a colonel's commission in the Par- 
 liamentary army. He died 24th June, 1643, of wounds received in a skirmish 
 at Chalgrove, near Oxford, six days previously. [Green, Hist. Eng. People^ 
 iii. 175-7, gives a picturesque account of Hampden's early life and home sur- 
 roundings in his ' Elizabethan hall girt round with galleries and stately stair- 
 cases,' on a rise of the Chilterns, and points out how the ability which he 
 shewed when he took his seat in the ' memorable Parliament ' of 1620, at 
 once 'carried him to the front,' so that he is found 'managing conferences 
 with the Lords,' and the friend of Eliot and of Pym. By a curious misprint, 
 Green has ' Stave ' for Stowe, in describing the Sheriff of Buckinghamshire, 
 1635-6, Sir Peter Temple of Stowe, who had the writ for assessing Shipmoney 
 on his County. — Ed.] 
 
 ^ The opinion of the Judges was twice taken by the King : first, in Dec. 1635, 
 shortly after the issue of the second writ, and again more formally in Feb. 1637. 
 Their answers were practically the same on both occasions. On their last 
 opinion Strafford wrote : ' Since it is lawful for the King to impose a tax to- 
 wards the equipment of the navy, it must be equally so for the levy of an army; 
 and the same reason which authorises him to levy an army to resist will autho- 
 rise him to carry that army abroad, that he may prevent insasion. More- 
 over, what is law in England is law also in Scotland and Ireland. This deci- 
 sion of the judi^es will therefore make the King absolute at home and formidable 
 abroad. Let him only abstain from war a few years, that he may habituate 
 
CQO V ' The Stuart Period, [Ch. 
 
 Arguments During twelve days the great case was argued in the 
 on the case. £^^5^^^^^^^. Chamber, by the celebrated Oliver Stjohn and 
 Mr. Holbo rne as counsel for Hampden, by the Attorney- 
 General Bankes and the Solicitor- General Littleton on 
 behalf or~the"Crown. On the part of Hampden it was 
 maintained : — 
 
 (i.) That the Law and Constitution of England had pro- 
 vided 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 extend 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 assistance 
 
 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. [For the answers of the Judges, cf. Denman's Broom's Const. Law^ 
 p. 306.— Ed.] 
 
XIV.] Petition of Right to the Restoration, 59 ^ 
 
 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 repayment, or by 
 Benevolences which were in the nature of alms from their 
 subjects, afforded additional proof that 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 argument 
 was founded on the long series of statutes, concluding 
 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 consent of 
 Parliament. 
 
 (iv.) As to the precedents alleged on the Crown side, 
 it was answered that most or of 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 
 <;ould 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 dejure. fudicandum 
 est legibus non exemplis. 
 
 (v.) Lastly, admitting that in a case of over-ruling neces- 
 sity, as of actual invasion, or its immediate prospect, not 
 •only the Sovereign, but each man in respect of his neigh- 
 bour, 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. 
 
 The twelve Judges took some time for deliberation, and judgment 
 delivered their judgments during the three next terms, four ^^^ *^^ 
 
 - , r Crown. 
 
 in each term. Seven pronounced m favour of the Crown, 
 and five in favour of Hampden ; so that the majority 
 
592 The Stuart Period. [Ch. 
 
 against him was the least possible. ' Of the five who 
 decided for Hampden, three based their judgments upon 
 merely technical grounds peculiar to his particular case : 
 but the other two, Croke and Hutton, boldly denied the 
 right claimed by the Crown, without the smallest qualifica- 
 tion. The elaborate and learned judgment of Sir George 
 Croke ^ was grounded upon the following reasons: ist. 
 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. Srdly. That 
 it was not to be maintained by any prerogative, nor allega- 
 tion of necessity 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 Berkeley, ' supposed a fundamental policy in the 
 creation of the frame of this kingdom, 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 
 
 * [See Croke's Judgment, in Denman's Broom's Const. LaWy pp. 338-55, 
 where it is followed by that of Finch, C.J., contra.~Y,D.\ 
 
XIV.] Petition of Right to the Restoration. 593 
 
 in parliament ; he is utterly mistaken therein. 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 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, notwithstanding 
 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 him- 
 self 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 land 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 : therefore 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 parlia- 
 ment make any difference.' ^ 
 
 Charles had little cause for rejoicinsf at the lesfal decision Effect of this 
 . t . /- \ T , ^^ i XT 1 1 Judgment. 
 
 m his favour. \ Its only 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 observing 
 that the advantage to the King was of importance, when 
 
 4 3 St. Tr. 825 ; Hallam, Const. Hist. ii. [21, 22]. 
 
 C.H. Q Q 
 
594 
 
 The Stuart Period. [Ch. 
 
 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 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 themselves bound in conscience to the public 
 justice not to submit to. It was an observation long ago. 
 by Thucydides, " 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, when 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 ; judgment 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 pro- 
 moters 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, 
 
XIV.] Petition of Right to the Restoration. ^05 
 
 or apprehensive of, the inconveniences that might attend 
 any alteration. 
 
 ' And here the damage and mischief cannot be expressed 
 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 esti- 
 mation of the laws themselves, but by the integrity and 
 innocency of the judges. And no question, as the exorbi- 
 tancy 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 prede- 
 ■cessors (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.' ^ 
 
 It was not long after the condemnation of Hampden The Scottish 
 that Charles entered upon his rash and unwise attempt '^^^^^^°°- 
 
 1 Hist. Rebell. i. 69. 
 
 Q Q 2 
 
59<3 
 
 The Stuart Period. 
 
 [Ch. 
 
 Distress of 
 the Govern- 
 ment. 
 
 Fourth [the 
 Short) Par- 
 liament. 
 1640. April 
 13— May 5. 
 
 Its modera- 
 tion and 
 loyalty. 
 
 Charles de- 
 mands an 
 immediate 
 supply. 
 
 to change the Ecclesiastical position 'in Scotland, and to 
 force upon the people of that kingdom a Liturgy which the 
 great body of them regarded with fanatic abhorrence.^ The 
 Scots, having drawn up and signed their celebrated Cove- 
 nant (March, 1638), at length took up arms in defence of 
 their Religious freedom. By the ignominious pacification of 
 Berwick (i8th 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 impotence 
 of the King's arbitrary system of government became appa- 
 rent. 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 reluct- 
 antly yielded to the advice of his Council and issued writs 
 for a Parliament which met on the 13th April, 1640. 
 
 It is remarkable that the House of Commons which met 
 after so long a period of arbitrary misgovernment was 
 admitted on all sides to be one of the most moderate and 
 loyal assemblies which had been known for many years. 
 * The House generally,' says Clarendon, ' was 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.' ^ 
 Charles pressed for an ample and immediate supply, and 
 
 1 [The position of Ecclesiastical affairs in Scotland was at this time curious, 
 if not anomalous. There was, technically, a Hierarchical government of the 
 Established Church by means of duly consecrated Bishops for the ancient 
 Dioceses of Scotland, and there was even a new Diocese formed, that of 
 Edinburgh, but Episcopal collation to benefices seems to have been the main 
 link which connected the Church with Episcopacy, and the use of Liturgical 
 forms, which, of course, are not of the essence of Episcopacy, appears to have 
 been either confined to the service conducted by the Reader, preparatory to 
 the Parish Minister's service, or to the use of the Lord's Prayer, the Psalms, 
 and the Doxology. On these points, much interesting information may be 
 found in Beveridge's Culross and Tulliallan, and Davidson's Invertirie and 
 Earldom of the Garioch^ and on the situation after the Disestablishment of 
 Episcopacy in 1689, in Walker's Life and Times of Rev. John Skinner of 
 Linshart. In the present day, there seems to be rather a move in favour of 
 Liturgical worship, among an influential section, at least, of the clergy of the 
 Scottish Establishment.— Ed.] 
 
 » Clarendon, Hist. i. 139. 
 
XIV.] Petition of Right to the Restoration. 597 
 
 pledged his word that if the Commons would gratify him 
 with the dispatch of this matter, he would give them time 
 enough afterwards to represent any grievances to him. 
 But the Commons, led by Pym and Hampden, and mind- The Com- 
 ful how shamefully the Royal word had been already ^n°redJSs of 
 violated, shewed a thorough determination to have their grievances, 
 accumulated grievances redressed before voting supplies. 
 They declared that the conduct of the Speaker on the last 
 day of the former Parliament, in refusing, at the alleged 
 command of the King, to put the question ; and the prose- 
 cution and imprisonment of Eliot, Holies, and Valentine, 
 for their behaviour in Parliament, were breaches of privi- 
 lege. 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 proceed- 
 ings during the long discontinuance of Parliament were 
 discussed in detail. * Let us not stand too nicely upon Speech of 
 circumstances,' said Edmund Waller ; * let us do what may waUer. 
 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.' ^ 
 
 With this object, a Committee was appointed to confer Committee 
 with the Peers on a long list of grievances divided, by the ^^-^^^^ 
 advice of Pym, into the three heads of innovations in Lords on 
 
 grievances. 
 
 ^ Pari, or Const. Hist. viii. 441. 
 
598 
 
 The Stuart Period, [Ch. 
 
 religion, invasions of private property, and breaches of the 
 
 A question privileges of Parliament. Impatient at the delay, Charles 
 
 of privilege, 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 this a high breach of 
 
 their privileges, which the Lords answered by a disclaimer 
 
 of any intention to interfere with the undoubted right of 
 
 Exclusive the Commons, admitting that * the bill of subsidies ought 
 
 Commons ^o have its inception in your House ; and that when it 
 
 to initiate comes up to their lordships, and is by them as^reed to, it 
 
 Money-Bills. ,^ ,,, ,/i r^ i 
 
 must be returned back to you, and be, by your Speaker,, 
 presented.' ^ 
 
 Amend- * Besides the exclusive right of initiating Money-Bills, the Commons also- 
 
 ments to maintained that such Bills should not be amended by the Lords. In 167 1, they 
 Monev -Bills successfully disputed the right of the Lords to reduce the amount of an imposi- 
 bv the Lords ^^°^ ' ^'^^ sinc*e that year the Lords have tacitly acquiesced in the contention 
 ' of the Commons. "Whenever amendments have been made which the Com- 
 mons 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 affecting supply and taxation, 
 such as Bills for the regulation of trade and for imposing or repealing protec- 
 tive 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 167 1 
 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 sup- • 
 plies 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 Com- 
 mons.' After the lapse of six weeks, during which a Committee of the 
 
XIV.] Petition of Right to the Restoration, 599 
 
 In the meantime the King sent a message to the Com- (-.jjj^j.jg3 
 mons, offering, if they would grant him twelve subsidies oflFers to give 
 (about ;^850,ooo), payable in three years, to give up the money'for 
 prerogative of ship-money. But the Commons were by twelve sub- 
 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 Com- 
 the kingdom, and by purchasing it, they should upon the l^^purchag"^ 
 matter confess it had been just ; which no man in his heart immunity 
 acknowledged ; ' and therefore wished * that the judgment iii°egaHmpo- 
 might be first examined, and being once declared void, sition. 
 what they should present the King with would appear a 
 gift and not a recompense.' ^ The message was, however, 
 taken into favourable consideration, 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 consideration, when Sir Henry Vane, Secre- imprudent 
 tary of State, told them that if the supply were not voted "j.^^.^ s^g^L 
 in the amount and manner proposed in the King's message, tary Vane. 
 it would not be accepted. This caused an adjournment of ^.^"^^^f^^^^ 
 
 ^ ... dissolved 
 
 the debate, and the next day the King angrily dissolved after three 
 
 weeks' 
 session, 
 5 May, 1640. 
 Commons had searched for precedents 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 1 '^ 
 
 Paper Duties Bill, they had been actuated by motives of public policy merely, yr" jj 
 
 without any intention of entering upon a deliberate course of interference with /^j f^ 
 the peculiar functions 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 proposing three resolutions, which were passed by the House: (i) '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 grant- 
 ing 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. 
 * Clarendon, Hist. i. 136. 
 
6oo The Stuart Period. [Ch. 
 
 Parliament, which had sat only three weeks.^ ' There could 
 
 not a greater damp/ says Clarendon, ' have seized upon the 
 
 spirits of the whole nation than this dissolution caused ; 
 
 Effect of the and men had much of the misery in view which shortly 
 
 dissolution, 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.' ^ 
 
 The King Charles now returned to his old Despotic courses. 
 
 old^Despotic Several members of the late House of Commons were 
 
 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 imposition 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 services 
 
 Convoca- against the Scots. In order to obtain a grant of six sub- 
 
 tion con- sidies from the clergy, Convocation was unconstitutionally 
 
 continued after the dissolution of Parliament, under a fresh 
 
 Commission authorizing its sittings * during pleasure/ and 
 
 empowering it to alter and amend the laws of the Church. 
 
 Promulgates It accordingly framed and promulgated a set of Canons 
 
 C^^s^. ° which greatly irritated both the political and religious 
 
 feelings of a great part of the nation. In addition to 
 
 inculcating the Divine Right of kings, and denouncing the 
 
 A new oath damnable sin of resistance to authority, a new oath ' for the 
 
 ^ Hist. i. 138. 
 « Ibid, i. 139. 
 
XIV.] Petition of Right to the Restoration, 60 1 
 
 preventingf of all innovations in doctrine and g^overnment ' f^^ prevent- 
 
 . , , 1 , ,, 1 1 11 ^"g mnova- 
 
 was appointed to be taken by all clergymen, and all tions in 
 .graduates in the Universities, while Separatists of all "^^^^S^^^- 
 jdenominations were subjected to the same penalties as 
 Romish recusants.^ 
 
 In his military operations against the Scots, Charles failed Failure of 
 utterly and ignominiously. After the defeat at the ford of ^per^tions 
 Newburn-on-Tyne, the English army, disheartened, un- against the 
 disciplined, and disaffected, had retreated to York, leaving 1640,' Aug. 
 the four northern counties to be possessed by the victors. ^^* 
 * The game of tyranny,' observes Macaulay, ' 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 Great 
 York, but the King could not trust even the Peers. He p^e^s^sum- 
 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' ^ 
 
 On the 3rd of November, 1640, met that renowned Par- Fifth {the 
 iiament ' destined to every extreme of fortune, to empire uament^^' 
 and to servitude, to glory and to contempt; at one time Nov. 3, 1640. 
 the sovereign of its sovereign, at another time the servant 
 of its servants ; ' but which, * in spite of many errors and Its charac- 
 
 tcnstics 
 
 disasters, is justly entitled to the reverence and gratitude of 
 all who, in any part of the world, enjoy the blessings of 
 constitutional government.'^ The elections had proceeded 
 with the utmost excitement throughout 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 
 
 1 Neal, Hist. Purit. ii. 302. . 
 
 " Macaulay, ('Hampden,') [Essays, 1862, i. 461. — Ed.] 
 
 ^ Ibid. loc. cit. and W^orks, i. 76. 
 
6o2 The Stuart Period, [Ch^ 
 
 worthy members ^ — secured an overwhelming majority on 
 the side of the Opposition. ' There was observed/ says 
 Clarendon, * a marvellous elated countenance in most of the 
 members before they met together in the House ; the same 
 men who six months before were observed to be of very 
 moderate tempers, and to wish that gentle remedies might 
 be applied without opening the wound too wide and ex- 
 posing it to the air, and rather to cure what was amiss than 
 too strictly to make inquisition into the causes and origin 
 of the malady, talked now in another dialect both of things 
 and persons, and said that they must now be of another 
 temper than they were the last Parliament ; that they had 
 now an opportunity to make their country happy by 
 removing all grievances and pulling up the causes of them 
 by the roots, if all men would do their duties.' ^ 
 Speech of The first day on which the House met for business, Pym 
 staSofthe^ delivered a long and eloquent speech on the miserable 
 Kingdom, state and condition of the Kingdom, denouncing the many 
 arbitrary proceedings of the Government as ' done and 
 contrived maliciously, and upon deliberation, to change the 
 whole frame, and to deprive the whole nation, of all the liberty 
 and property which was their birthright by the laws of the 
 land, which were now no more considered but subjected to 
 the arbitrary power of the Privy Council, which governed 
 the kingdom according to their will and pleasure.' Of the 
 persons who had contributed their joint endeavours ta 
 bring this misery upon the nation, he named the Earl of 
 Strafford as ' one more signal in that administration than 
 the rest, being a man of great parts and contrivance, and 
 of great industry to bring what he designed to pass ; a maa 
 who, in the memory of many present, had sat in that 
 House an earnest vindicator of the laws, and a most 
 
 ^ [This ride, however, in which Pym accompanied Hampden, was * hardly 
 needed,' says Green, Hist. Eng. People^ iii. 195, 'for the summons of a Parlia- 
 ment at once woke the kingdom to a fresh life.' One marked feature of this 
 fresh life, noted by Green, loc. cit. , was that * the Puritan emigration to New 
 England was suddenly and utterly suspended.' The intending emigrants 
 stayed at home, says Winthrop, 'in expectation of a new world.' — Ed.] 
 
 ^ Clarendon, Hist. i. 171. 
 
XIV.] Petition of Right to the Restoratio7i, 603 
 
 zealous assertor and champion for the liberties of the 
 people ; but that it was long since he turned apostate from 
 those good affections, and, according to the custom and 
 nature of apostates, was become the greatest enemy to the 
 liberties of his country, and the greatest promoter of 
 tyranny that any age had produced.' It was resolved, with Tmpeach-^ 
 * an universal approbation and consent from the whole sfrafford. 
 House,' to impeach Strafford of high treason. Pym im- 
 mediately carried up the message to the bar of the Lords, 
 who, with very little debate, committed the Earl to the 
 custody of the Usher of the Black Rod, there to remain until 
 the Commons should bring in a particular charge against 
 him.i That Strafford had been technically guilty of the 
 crime of high treason was a matter of grave doubt, and 
 his execution (12 May, 1641) under a Bill of Attainder, His execu- 
 brought in after a lengthy trial had failed to secure the a Bin o/"^ 
 probability of a legal conviction, and passed, amidst popular Attainder, 
 tumults, by the small majority of seven in a House of 1641. 
 Peers which could muster only forty-five votes, has pro- 
 cured for him that sympathy which violence invariably 
 assures to its victims. But there can be no doubt that' 
 from the time when he devoted his consummate abilities to 
 the establishment of that Despotic system of government 
 which he emphatically termed * Thorough,' he became and 
 continued a most formidable enemy to his country's free- 
 dom. However unsatisfactory in a purely legal point of 
 view, the hesitating opinion of the Judges may be taken as 
 truly expressing at least his moral guilt, when they declared 
 that he * deserved to undergo the pains and forfeitures of 
 high treason by law.' ^ The impeachment of Strafford was 
 followed up by that of Archbishop Laudj^ of the Lord- Impeach- 
 Keeper Finch ; of Windebank, Secretary of State ; of six Laud;° 
 of th e Judges for their conduct in relation to Ship-money ; Finch, 
 and of some other laymen and ecclesiastics.^ The con- and others, 
 
 • 
 
 ^ Clarendon, Hist. i. 174. 
 
 2 Supra, p. 543. 
 
 3 For the details of Strafford's and Laud's impeachments, see supra, 
 PP' 543-4- Finch and "Windebank saved themselves by flight beyond sea ; 
 
6o4 
 
 The Stuart Period, 
 
 [Ch. 
 
 Victims of 
 the Star 
 Chamber 
 released. 
 
 Assistance 
 voted to the 
 Scots. 
 
 Salutary 
 Acts of the 
 Long Par- 
 liament. 
 
 The Trien- 
 nial Act, 
 1 641. 
 
 demnation of Prynne, Burton, Bastwick, Leighton, and 
 Lilburne, those victims of the tyranny of the Star Chamber, 
 was declared illegal, and their liberation ordered. The 
 return journey of the three former from their island prisons 
 in Jersey, Guernsey, and Scilly, formed a triumphal proces- 
 sion, ' great herds of people meeting them at their entrance 
 into all towns, and waiting upon them out with wonderful 
 acclamations of joy.' Near London they were met by 
 * above ten thousand persons, with boughs and flowers in 
 their hands, the common people strewing flowers and 
 herbs in the ways as they passed, making great noise and 
 expressions of joy for their deliverance and return ; and in 
 those acclamations mingling loud and virulent exclamations 
 against the Bishops " who had so cruelly prosecuted such 
 godly men." ' ^ 
 
 In the meantime, the presence of the Scotch army in the 
 northern counties rendered the King powerless to resist 
 the will of his Parliament. Instead of aiding him ' to chase 
 out the rebels,' as he had asked them to do in his opening 
 speech, the Commons fraternised with their ' brethren of 
 Scotland,' and in addition to a grant of ;£"2 5,000 a month 
 so long as their stay in England should be necessary, voted 
 them the sum of ;^300,ooo as an indemnity and recompense 
 for their brotherly assistance.^ 
 
 Master of the situation, the Parliament used its power 
 with energy, tact, and moderation. During the first session 
 of ten months a number of salutary Acts were passed, 
 which, while sweeping away most of the accumulated 
 abuses of recent times, left the ancient Constitution intact, 
 and the just prerogatives of the King undiminished. 
 
 (i) The first of these statutes regulated the intermission 
 and duration of Parliament. By the * Act for the pre- 
 venting of inconveniences happening by the long inter- 
 mission of Parliaments,' it was provided that if in every 
 
 some of the other persons were never brought to trial, and the remainder were 
 sentenced to payment of heavy fines. 
 
 * Clarendon, Hist. i. 202 (bk. iii.). 
 
 2 Pari, or Const. Hist. ix. 93. 
 
XIV.] Petition of Right to the Restoration, 605 
 
 third year Parliament was not duly summoned and 
 assembled before the 3rd day of September, it should, 
 nevertheless, assemble on the second Monday in the ensuing 
 November. For this purpose, the Lord Chancellor, or 
 Keeper of the Great Seal, should be sworn to issue the writs 
 for a new Parliament in due time, under pain of disability 
 to hold his office, and further punishment ; in case of his 
 default, the Peers were enabled and directed to meet at 
 Westminster, and any twelve or more of them to issue the 
 writs ; failing the Peers, the sheriffs, mayors, and bailiffs 
 should cause elections to be made ; and lastly, in their 
 default, the electors themselves were to meet and proceed 
 to choose their representatives, in the same manner as if 
 writs had been regularly issued from the Crown. No future 
 Parliament was to be dissolved, prorogued, or adjourned 
 within fifty days after the time appointed for its meeting, 
 except with its own consent : but it should be ipso facto 
 dissolved at the expiration of three years from the first 
 day of its session, unless actually sitting at the time, in 
 which case the dissolution should be postponed till its first 
 subsequent adjournment or prorogation.^ 
 
 In the reigns of Edward II. and Edward III. it had been 
 provided by statute that Parliament should be holden at 
 least once in every year,^ but as no provision was then 
 made in case of the failure of the King to issue the neces- 
 sary writs, the law had been dispensed with at pleasure. 
 The known resolution of Charles to govern without a Par- 
 liament made it absolutely necessary that this defect in the 
 machinery of the Constitution should be remedied. Care- 
 fully adhering to the old lines, the Triennial Act left 
 untouched the King's prerogative of calling Parliament, and 
 even extended the legal period of intermission from one 
 year to three. It was only in the event of the King failing 
 to exercise his prerogative within the prescribed time, that 
 another mode was provided for ensuring the supremacy 
 
 1 16 Car. I. c. I. ; repealed, in 1664, by 16 Car. II. c. i. 
 
 2 Supray pp. 282-3. 
 
poundage 
 granted for 
 two months 
 
 606 The Stuart Period. [Ch. 
 
 of the law. The limit placed on the diiration of any one 
 Parliament, although a novelty, was merely a matter of 
 detail which did not trench upon the principle of the Con- 
 stitution. The House of Commons not being an Estate in 
 itself, but merely the representative of an Estate of the 
 Realm, must be periodically renewed, or it would cease to 
 be a really Representative assembly. The precise limit of 
 duration, whether one year, or three, or seven, or any other 
 number, is a matter to be decided by considerations of 
 practical convenience and efficacy. 
 Tonnagean(f An Act was passed putting an end to the long-contested 
 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, 
 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 pro- 
 vided 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 im- 
 ported by subjects, denizens, or aliens, without common 
 consent in Parliament.' ^ 
 Skip-money An 'Act for the declaring unlawful and void the late 
 proceedings touching ship-money, and for the vacating 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.^ These 
 
 * 16 Car. I. c. 8. The grant was continued by six subsequent Acts (cc. 12, 
 22, 25, 29, 31, 36) for short periods [down] to July 2, 1642. 
 2 16 Car. I. c. 14. Five of the Judges who had pronounced in favour of 
 
XIV.] Petition of Right to the Restoration. 607 
 
 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 prin- 
 <:ipal instruments of despotic power. By an * Act for the Star 
 regulating of the Privy Council, and for taking away the aboUshed. 
 •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 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 question, 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 
 Tiim, 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 delivering, bailing, or remanding the 
 prisoner.^ Another clause of this Act abolished the Court 
 
 ship-money (Berkeley, Crawley, Davenport, Trevor, and Weston) were im- 
 prisoned for their judgment. 
 » 16 Car. I. c. 10. 
 
6o8 
 
 The Stuart Period, 
 
 [Ch. 
 
 High Com-. 
 mission 
 Court 
 abolished. 
 
 Purveyance 
 restricted ; 
 compulsory 
 knighthood 
 abolished ; 
 extensions 
 of the Royal 
 forests 
 annulled. 
 
 of the President and Council of the North — which under 
 Strafford's arbitrary administration had given so much 
 offence — 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.' ^ 
 
 With the Court of Star Chamber and the provincial 
 irregular tribunals fell also the Court of High Commission. 
 By an Act intituled 'A repeal of a branch of a Statute 
 primo Elizabethae, 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.^ 
 
 By other statutes the vexatious prerogative of Purvey- 
 ance was restrained, writs to compel the taking up of 
 knighthood were abolished, and the boundaries of the Royal 
 forests were again reduced to their limits in the 20th year 
 of James I.^ 
 
 Among the beneficial Acts of the Long Parliament is 
 
 1 Hallam, Const. Hist. ii. 99. By another Act (16 Car. I. c. 15) certain 
 abuses in the Stannary courts of Cornwall and Devon were remedied. The 
 Council of the North was instituted by Henry VIH. 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 of Westminster. Strafford, as President, greatly extended the 
 jurisdiction of this court, and excited much odium by his tyranny and arro- 
 gance. The Courts of the Council of the North and of the Marches of Wales 
 were entirely abolished, but the jurisdiction of those of the Duchy of Lan- 
 caster and of the County Palatine of Chester was preserved as to matters 
 touching the King's private estate. 
 
 2 16 Car. I. c. II. The latter part of the Act was repealed after the Re- 
 storation. 
 
 3 16 Car. I. cc. 19, 20, 16. 
 
XIV.] Petition of Right to the Restoration. 609 
 
 also to be reckoned one which, while empowering the King Impress- 
 to levy troops compulsorily for the suppression of the Irish declared 
 rebellion, recites in the preamble that, * by the laws of this ^ll^g^^- 
 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 com- 
 ing in of strange enemies into the kingdom, or except they 
 be otherwise bound by the tenure of their lands or pos- 
 
 sessions. 
 
 '1 
 
 ^ 16 Car. I. c. 28. Since this statute, impressment for the army has never Impress- 
 been exercised by virtue of the Royal prerogative : but under the authority of ment. 
 Parliament it has occasionally been resorted to, more especially during the 
 American war, as, e.g., in 1779, by statute 19 Geo. III. c. 10. In later time?, , for the army . 
 however, this odious violation of personal liberty — which has nothing in com- 
 mon with a national conscription applicable to all able-bodied citizens alike — 
 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 for the navy. 
 a somewhat different footing from military impressment. It is 'a prerogative 
 inherent in the Crown,' says Sir Michael Foster, ' grounded upon common law 
 and recognised 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 ar?na 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 impress- 
 ment for the navy has not yet been formally renounced by law ; but the Com- 
 mission on Manning the Navy, in 1859, reported that ' the evidence of the 
 witnesses, with scarcely an exception, shows that the system of naval impress- 
 ment, as practised in former wars, could not now be successfully enforced.* 
 — See Foster, Crown Law, 154-180 : and May, Const, Hist. iii. 20-24. [Cf. 
 also Denman's Broom's Const. LaWy pp. 111-13, where Dr. Broom appears to 
 consider impressment for the Navy to be * one species of compulsory servitude, 
 the legality of which rests on an intelligible principle, and depends on our 
 customary law. ' But the learned author omits to state this principle, unless it 
 be found in his citation of Sir Michael Foster's ' ne quid detrimenti respublica 
 capiat^'' which, broadly put, would cover anything, however injurious to the 
 liberty of the subject. Yet Dr. Broom admits that ' it would be difficult to 
 conceive a more startling infraction tjian this of the liberty of the subject,' and 
 he ' confidently predicts that the system will not again be enforced ' {loc. cit.). 
 It may be hoped, from a Constitutional point of view, that Dr. Broom's con- 
 fident prediction will be fulfilled in future naval wars in which Great Britain, 
 may be engaged. — Ed.] 
 
 C.H. R R 
 
6io 
 
 The Stuart Period. 
 
 [Ch. 
 
 Hallam's 
 remarks on 
 the foregoing 
 legislation. 
 
 Acts against 
 the dissolu- 
 tion of Par- 
 liament 
 without its 
 own consent, 
 and for 
 disabling the 
 clergy to 
 exercise 
 temporal 
 jurisdiction. 
 
 Upon the foregoing statutory measures of the Long Par- 
 liament Hallam makes two just remarks : (i) * They made 
 scarce any material change in our constitution such as it 
 had been established and recognised under the house of 
 Plantagenet .... the monarchy lost nothing that it had 
 anciently possessed ; and the balance of our 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 retrench- 
 ments of pernicious or abused prerogative, the long 
 parliament formed our constitution such nearly as it now 
 exists.' ^ 
 
 Two other statutes of the Long Parliament, one providing 
 that the Parliament then sitting should not be prorogued 
 or dissolved without its own consent, and the other de- 
 priving the Bishops of their suffrages among the Peers, are 
 more open to animadversion. They were both departures 
 from the old lines of the Constitution ; but 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 f the other was the outcome of 
 that 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 cause of both Church and King.^ 
 
 1 Hallam, Const. Hist. ii. loi, 102. 
 
 2 The ' Act to prevent inconveniences which may happen by the untimely 
 adjourning, proroguing, or dissolving of this present Parliament' (i6 Car. I. 
 c. 7), was ostensibly grounded on the necessity of speedily raising 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 inten- 
 tion 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. 113. 
 
 ^ 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 
 
XIV.] Petition of Right to the Restoration, 6ii 
 
 After a session of ten months devoted to passing the Parliament 
 
 adjourned. 
 
 series of Acts above enumerated, the two Houses, in Sep- 
 tember, 1 64 1, adjourned for a short recess of six weeks. 
 It was about this time that a final schism in the Constitu- Schism in 
 tional party developed itself. The concessions already [I^qmI^ party." 
 made by the King were deemed by a large minority a 
 sufficient surrender of the Royal power. ' The King was 
 now,' observes Mr. Forster, * to all appearance the weaker Old posi- 
 party, and the House of Commons was the stronger ; and re^versed. 
 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 defec- Daily defec- 
 tions from the ranks ; the House of Lords unexpectedly Popular"^ 
 deserted them on questions in which they had embarked ranks. 
 in unison ; the army was entirely unsafe ; and opinions 
 began to be busily put about that enough had been con- 
 ceded by the King, and that the demand for more would 
 be ungenerous. 
 
 * Never had a great cause been in peril more extreme. Character of 
 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 
 I reclaim it. It was notorious that Charles the First enter- His view as 
 J tained a belief of the invalidity of the most important of of statutes 
 1 the measures already passed by the Long Parliament on [passed 
 \ the ground that his own assent, having been given by internal 
 \ compulsion, was ipso facto void. His Attorney- General ^^^^"^J- 
 \ had encouraged him in this notion ; ^ and Hyde him- 
 ^ self ^ cannot help condemning the facility with which he 
 assented to acts requiring grave deliberation, in reliance Assenting 
 on this dangerous opinion that the violence and force used ^^^revoke?^^ 
 
 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. 
 ^ Clarendon, Life and Continuation, i. 206-21 1. 
 Clarendon, Hist. ii. 252. 
 
6i2 '^h^ Stuart Period, [Ch. 
 
 in procuring them rendered them absolutely invalid and 
 void.' 1 
 
 The leaders of the Commons were convinced, rightly as we 
 now know, that the King was bent upon recovering, by force 
 or fraud, the arbitrary powers which he had been compelled 
 to surrender ; that unless further securities were taken, and 
 a constant vigilance maintained, there was danger not only 
 of the loss of their newly vindicated liberties, but of the 
 subversion of the existing free Parliamentary Constitution 
 and the establishment in its stead of the Personal Govern- 
 ment of the King. As under Richard II., so now under 
 Charles I., the question between King and People was 
 rreedom or again practically narrowed to the simple issue of Absolute 
 espo ism Monarchy versus Parliamentary Government. Pym and 
 The Parlia- his co-workers in the Parliament felt that the time had 
 leaders^ come to make an earnest appeal to the people, warning 
 resolve to them, by a recital of the lessons of the past, that no faith 
 appeal to the ' ^ j • 4.U t^- 
 
 people. could be reposed m the Kmg. 
 
 Charles goes In the meantime Charles had gone to Edinburgh, much 
 burgh!" against the wish of the Commons, partly for the purpose 
 Object of of adjusting the points of difference which remained 
 his journey, between him and his Scottish subjects, but 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 accessions from the undis- 
 banded Scotch army to the conspirators of the army of 
 the North as to render safe the prosecution of such a 
 charge.' ^ 
 Negotiations Chiefly with the view of saving Strafford's life, the 
 offiSTo the -^^"S \idAy some months previously, made overtures for 
 popular giving office to the leaders of the Popular party, and had 
 ea ers. ^^^^ made St. John, one of the most uncompromising 
 opponents of the Court, Solicitor-General, besides appoint- 
 ing Lords Essex, Holland, and Saye to other posts. But the 
 ill-timed death of the Earl of Bedford, a Puritan who was 
 
 * Forster, Grand Remonstrance, p. 154. 
 ^ Grand Remonstrance, p. 154. 
 
XIV.] Petition of Right to the Restoration, 613 
 
 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 Scotland 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 Remonstrance, baffled the plan.' ^ 
 
 At Edinburgh, Charles set himself to winning over the The Tnci- 
 Parliament and Church of Scotland against the Parliament Scotland ; 
 of England, by granting all their demands, by assiduously 
 attending the Presbyterian worship, and by lavishing 
 favours upon the chiefs of the Covenanters. At the same 
 time he was secretly searching for proofs of the corre- 
 spondence of the English political leaders with the Scots 
 prior to the late invasion, with the object of bringing a 
 charge of treason against the former, on his return. Acting 
 on information supplied by the Earl of Montrose that the 
 Marquis of Hamilton and the Earl of Argyle had been 
 implicated in the plans of the English malcontents, the 
 King even assented to a design for their sudden arrest and 
 the seizure of their papers, but these two noblemen, fore- 
 warned of the plot, frustrated it by publicly withdrawing 
 from the Scottish Parliament, and seeking refuge in Kinneil 
 Castle, the residence of Hamilton's brother. The King 
 complained of the suspicions of the Lords as an insult to* 
 his honour. A Committee of enquiry was ordered by the 
 Parliament, which elicited nothing decisive on either side, 
 and Hamilton and Argyle were induced to return to Par- 
 liament. But the leaders of the English House of Com- 
 mons, which had sent a small committee to Scotland, with 
 
 * Forster, Grand Remonstrance, p. 159. 
 
6 14 The Stuart Period. [Ch, 
 
 Hampden as its presiding member, to be near the King 
 and watch proceedings, were kept well informed of the real 
 facts. And the news of the ' Incident,' as the affair of 
 Hamilton and Argyle was popularly termed, excited much 
 agitation and alarm in London, lest this design against the 
 two great leaders of the Constitutional party in the northern 
 kingdom, should be followed by similar measures against 
 and the the English malcontents. About the same time (Nov. i) 
 Rebellion came tidiness of the Irish rebellion, with its attendant 
 
 m Ireland. ,.,.,/- . n -r. • ^ 
 
 massacre, which raised a fierce outcry against all rapists,. 
 
 and was by many believed to have been secretly instigated 
 
 or encouraged by the King.^ 
 Re-assem- On the 20th October, 1641, the Parliament re-assembled. 
 Uamlnt ^^^' ^^ examination into an alleged new Army-plot was insti- 
 Oct. 20, tuted in the Commons, and on the i8th November Pym 
 \f'^' , moved and carried a resolution, ' that in the examinations 
 
 Motion of .11 rr • 
 
 Pym on the now read unto us, we did conceive that there was sufficient 
 S ^'^^^' evidence for us to believe, that there was a 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 consciousness on the part of the 
 Commons, not merely of what had taken the King to Scot- 
 land, but of what still kept him there. The alarm and dis- 
 may it carried with it showed how unerringly the mark had 
 been hit.' ^ 
 The Grand On the 8th November the rough draft of the Remon- 
 Remon- strance, or ' Declaration of the State of the Kingdom,' was 
 
 strance laid ' ^ ' 
 
 on the table laid upon the table of the House. Secretary Nicholas at 
 Hou^e once wrote to the King informing him of the fact, and 
 
 ^ 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. On the Irish Rebellion, 
 see the Ulster Civil War of 1641, by John McDonnell, M.D. (Dublin, 1879) 
 — [and the recent works, Ireland in the Seventeenth Century ; or^ the Irish 
 Massacres of 1 641-2, their Causes and Results. By Mary Agnes Hickson. Lond. 
 1884, and Cromwell in Ireland. By Rev. Denis Murphy, S.J. Dublin. 
 1883. Cf. also, Art. on The Irish Massacres of 1641, in Edinburgh Review, 
 No. 328, for Oct. 1884.— Ed.]. 
 
 ^ Forster, Grand Remonstrance, p. 210. 
 
XIV.] Petition of Right to the Restoration. 615 
 
 urging his instant return to London. In reply the King Organised 
 wrote, * You must needs speak with such of my servants sition to it. 
 that you may best trust, in my name, that by all means 
 possible this Declaration may be stopped.' Under the 
 leadership of Hyde, a band of Members in the Lower 
 House was now organised 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 debate was The final 
 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, Bering, Rudyard, 
 Bagshaw, Culpeper, Pym, Orlando Bridgman, Waller, 
 Hampden, Holies, Glyn, Coventry, Geoffrey Palmer and 
 Maynard. Near midnight Secretary Nicholas retired, and 
 wrote to the King that the Commons had been in debate 
 since twelve at noon and were at it still, it being then near 
 twelve at midnight. ' 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'. 
 
 At length, about two in the morning, the Remonstrance The Remon- 
 was carried by a majority of eleven only. So critical was clTried by 
 the contest deemed, that Cromwell declared to Lord Falk- ^ votes, 
 land, 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 
 
6i6 The Stuart Period. [Ch. 
 
 England more ; and I know many oth^r honest men of the 
 
 same resolution.' 
 
 What the The nature and design of this memorable Constitutional 
 
 monstrante document, the most complete justification of the Great 
 
 w*s. Rebellion, may be concisely described in the words of Mr. 
 
 ^" j^PP^^^ Forster, as, ' in brief, an appeal to the country ; consisting 
 
 country. on the one hand, 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 
 
 Nodis- their unscrupulous partizans near the throne. There is 
 
 King or ° ^^ it> nevertheless, not a word of disrespect to the person 
 
 Church. or the just privileges 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 understand rightly, or with any exactness, either the 
 
 issue challenged by the King when he unfurled his 
 
 States what Standard, or the objects and desires of the men who led 
 
 inlssue ^"^ ^^^ House of Commons up to the actual breaking out of 
 
 the war.' ^ 
 The The Preamble, consisting of twenty unnumbered 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 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 diffi- 
 culties raised for their hindrance. In express terms they 
 denounce the Court conspiracy to subvert the fundamental 
 
 * Grand Remonstrance, pp. ii[5-i6j, 215 seq. 
 
XIV.] Petition of Right to the Restoration. 617 
 
 laws and principles of government, to degrade the Protest- 
 ant religion, to discredit the claims and authority of Parlia- 
 ment, and to introduce such opinions and ceremonies as 
 would necessarily end in accommodation with Popery. 
 
 The body of the Remonstrance is contained in 206 num- Proofs and 
 bered 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 statements 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 pacifica- 
 tion 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 t The Defence of 
 only means of our subsistence, and power of reformation, of^the^Com- 
 is, under Him, in the Parliament ; but what can we, the mons. 
 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 Reply to 
 Church government, and leave every man to his own fancy ^^^^ assail- 
 for the service and worship of God, absolving him of that 
 obedience which he owes, under God, to his Majesty ; 
 
 whom we know indeed to be entrusted with the ecclesias- 
 tical 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 Parlia- 
 ment ; which is his great council in all affairs, both in 
 Church and State. 
 
 * They have strained to blast our proceedings in Parlia- 
 
6i8 The Stuart Period. £Ch. 
 
 Distortion merit by wresting the interpretations 'Of our orders from 
 attitude their genuine intentions. They tell the people that our 
 towards meddling: with the power of episcopacy hath caused secta- 
 
 Episcopacy. . ° .,^ , ...., ,, -n-i_ 
 
 ries and conventicles, when it is idolatry, and the ropisn 
 ceremonies introduced into the Church by command 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. 
 Design of * We confess our intention is, and our endeavours have 
 ge^Bishops bggj^^ ^Q reduce within bounds that exorbitant power which 
 the prelates have assumed unto themselves, so contrary 
 both to the word of God and to the laws of the land : ta 
 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 themselves to the dis- 
 charge of their functions ; which Bill they themselves- 
 opposed, and were the principal instruments of crossing.^ 
 No intention * And we do here declare that it is far from our purpose 
 discVlmer ^r desire to let loose the golden reins of discipline and 
 government in the Church, leaving private persons, or par- 
 ticular congregations to take up what form of divine 
 service they please : for we hold it requisite that there 
 Conformity should be, throughout the whole realm, a conformity to 
 that order which the laws enjoin according to the Word of 
 God. But we desire to unburthen the consciences of men 
 
 * Three Bills were introduced by the Commons for taking away the tem- 
 poral 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 Chan- 
 cellors and Commissaries, Deans and Chapters, Archdeacons, Prebendaries, 
 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 departure for 
 Scotland. The third, which passed into a law in Feb. 1641-2 {supra^ p. 611), 
 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, 619 
 
 of needless and superstitious ceremonies, to suppress in- 
 novations, and to take away the monuments of idolatry.' 
 
 They then suggest a general Synod of divines, the result Suggestion 
 of whose consultations should be represented to the Parlia- t^settle^^ 
 
 ment, there to be allowed of and confirmed, and to receive Church 
 
 government. 
 the stamp of authority. 
 
 ' We have been maliciously charged,' they continue. Desire to 
 
 * with the intention to destroy and discourage learning, feam?ng, 
 
 whereas it is our chiefest care and desire to advance it, and 
 
 to provide such competent maintenance for conscientious 
 
 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 by reforming 
 
 TJnivGrsitics* 
 
 Fountains of Learning, the two Universities, 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 Mea- Remedial 
 sures demanded: 'the groundwork of which,' remarks Mr. ^^^^^^^^^Jg^j 
 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 (i.) Safe- 
 net be able to do any hurt ; and for avoiding such con- |ga[nst 
 nivance and favour as had theretofore been shown to Roman 
 them, his Majesty was moved to grant a standing commis- religion. 
 sion to some choice men named in Parliament, who might Suggested 
 take watch of their increase, report upon their counsels and ^^"^"^^ssion. 
 proceedings, and use all due means, by execution 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 admitted into places of 
 highest authority and trust. 
 
 (ii.) That, for the better preservation of the liberties and (ji-) Securi- 
 laws, all illegal grievances and exactions should be pre- rilnis^tradon 
 
 of laws. 
 
620 The Stuart Period, [Ch. 
 
 sented and punished at the sessions artd assizes ; and that 
 
 judges and justices should be sworn to the due execution 
 
 of the Petition of Right and other laws. 
 
 (iii.) Protec- (iii.) A series of precautions were suggested to prevent 
 
 tion against ^^ employment of evil councillors ; and it was plainly 
 
 evil coun- sr j 7 i • 
 
 cillors. stated that supplies for the 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 only such councillors, ambassadors, and other minis- 
 ters were in future employed, as Parliament could give its 
 Parliament confidence to ; and unless all councillors of State were 
 sulteVirT" sworn, as well to avoid receiving, in any form, reward 
 choice of or pension from any foreign prince, as to observe strictly 
 who should those laws which concerned the subject at home in his 
 
 be sworn to Hbertv. 
 observe the "^ 
 
 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 foundation 
 of more honour and happiness to his Majesty, than ever 
 was yet enjoyed by any one of his royal predecessors.' ^ 
 Motion to Immediately after the remonstrance had been voted, 
 print the y[^ Peard, Member for Barnstaple, moved that it should be 
 strance. forthwith printed. Hyde opposed the design 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 protest. Other voices 
 Protest of cried out that they protested, and Mr. Palmer declared ' I 
 Mr. Palmer, 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 im- 
 
 ^ The Remonstrance is printed in extenso 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. 
 
XIV.] Petition of Right to the Restoration. 621 
 
 minent, * had not the sagacity and calmness of Mr. Hamp- 
 den/ 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 au- 
 thority and influence of the Commons that, no matter what 
 their internal divisions might be, their decisions 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.'^ 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 15 th 
 December (1641), the Remonstrance, having been previously 
 presented to the King, was ordered to be printed by a 
 majority of 135 votes to 83. ^twr-^^ . 
 
 The next important, and indeed the critical, event in the Impeach- 
 relations between Charles I. and his Parliament was the att^mp^ed 
 Impeachment and attempted arrest of the Five Members, arrest of the 
 
 .. -... ., Five Mem- 
 
 The King had no mtention of submittmg quietly to the bers. 
 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 hands, attempted to make use of 
 what Clarendon has termed ' the stratagem of winning men 
 by places,' ^ by offering the Chancellorship of the Exche- 
 quer to Pym, the leader of the Popular party.^ But this preliminary 
 attempt at conciliation failed, like the former, doubtless on measures. 
 account of the utter distrust and disbelief which the King 
 
 1 Forster, Grand Remonstrance, p. 347. 
 
 ' Clarendon, Hist. ii. 60. 
 
 * Forster, Arrest of the Five Members, p. 59. 
 
622 The Stuart Period, [Gh. 
 
 in all his dealings had inspired. Charles now seems to 
 have resumed his original 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 private member of the House, but Falkland 
 accepted the post of Secretary of State, and Culpeper that 
 of Chancellor of the Exchequer. Balfour, the tried friend 
 of the Parliament, 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 anything 
 desired or directed.' The appointment of Lunsford 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. Dis- 
 turbed 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 Decem- 
 ber, Pym (who seems to have already received intimation 
 of the intended Impeachment) moved * that there being a 
 design to be executed this day upon the House of Com- 
 mons, 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 Holies, 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 communi- 
 cated to him in writing. This was immediately drawn up 
 and presented, but no answer was returned for three days. 
 At length, on the 3rd of January, 1641-2, 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 
 The Im- 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, impeaching of high 
 treason Lord Kimbolton and five members of the Com- 
 
XIV.] Petition of Right to the Restoration. 623 
 
 mons, Pym, Hampden, Holies, Haslerig, and Strode.^ He 
 demanded that the House should secure the persons of the 
 accused and appoint a Committee to examine the charges. 
 The Lords, * appalled ' (to quote Clarendon's expression) 
 at this proceeding, at once raised the question of the ille- 
 gality of the accusation, and disregarding the King's re- 
 quest, sent an immediate 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 com- 
 manded him to arrest for high treason.' The House ap- 
 pointed 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 
 
 1 A copy of the charge, endorsed in the handwriting of Secretary Nicholas Articles of 
 as 'Articles of treason against Mr. Pym and the rest,' exists among the State itnpeach- 
 Papers, and is printed in Mr. Forster's 'Arrest of the Five Members' (p. 114) ment aoainst 
 as follows : ' Articles of High Treason and other high misdemeanors ag* the /^^ pi^^ 
 Lord Kefholton, M' John Pym, M' John Hampden, M' Denzil Hollis, Sir Members 
 Arth' Haslericke, and M' W" Strode. 
 
 * I. That they have traytorously endeav'^ to subvert the fundamentall Lawes ^^-i ^^^^'^^^ 
 and Gov"* of the Kingdome of England, to deprive y^ King of his royale <^^^o,rge. 
 power, and to place in subjects an arbitrary and tyrannicall power over the (ii.) Author- 
 lives, iibertyes, and estates of his Maj'» lovinge people. ship of Re- 
 
 « 2. That they have traytorously endeav*^ by many fowle aspersions upon monstrance. 
 his Ma*'* and his Govern*, to alienate the affections of his people, and to make /••• x j-^^. 
 his Ma"* odious unto them. Merino- with 
 
 ' 3. That they have endeav^ to drawe his M*» late armye to disobedience to ^.r ^ 
 his Ma*'" cofnands, and to syde with them in their traytorous designs. ^ army. 
 
 * 4. That they have traytorously invited and incouraged a forreigne power (iv. ) Invita- 
 to invade his Ma*'** kingdome of England. tion to the 
 
 * 5. That they have traytorously endeav'* to subvert the rights and very being Scotch. 
 
 of Pari**. (y \ Punish- 
 
 * 6. That for the compleating of their traytorous designs, they have endeav*^, ^^J^^ ^f 
 as farr as in them lay, by force and terror to compell the Parlam* to joyne with protesting 
 them in theire traytorous Designs, and to that end have actually raysed and Minority. 
 countenanced tumults ag* y* King and Parlam*. ^ i - \ j? '• • 
 
 * 7. That they have traytorously conspired to levie, and actually have levyed '^^'^ Raising 
 warr ag* the King. ' Referring to the armed guard which they had persisted i^^^^^^^- 
 
 in voting for the protection of the House. (vii.) Levy- 
 
 ing war. 
 
624 T^ he Stuart Period. [Ch. 
 
 that the accused would be ready to' answer any legal 
 Commons charge made against them. The five Members were ordered 
 apply to the ^q attend daily in the'ir places, and the previous resolution 
 
 City tor a r ^ r^- 
 
 guard. for a military 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 Impeach- 
 lUegality of mcnt Macaulay has remarked, * it is difficult to find in the 
 peachment. ^^^le history of England such an instance of tyranny, 
 perfidyj^and folly. The most precious and ancient rights 
 of the subject 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 
 
 outrage 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 engaged in the 
 discharge of their parliamentary duties.' ^ 
 Preparations Careful preparations were made to ensure the success 
 Irreit^ of this coitp d'etat Whitehall was fortified with a con- 
 siderable accession of arms and ammunition, and the Palace 
 guard were ordered to hold themselves in readiness. Sir 
 WiUiam 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 Whitehall. 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 
 
 * Macaulay (Nugent's Memorials of Hampden), [Essays, 1862, i. 472. — Ed.]. 
 
XIV.] Petition of Right to the Resto7^ation, 625 
 
 of the people in the streets of the City, and with express 
 instructions, * by shooting with bullets, or otherv/ayes, to 
 suppresse those tumults and destroy such of them as shall 
 persist in their tumultuous wayes and disorders.' ^ 
 
 The next morning, the 4th of January (1641-2), the Pym's 
 accused Members attended in their places, and in a Grand answer \o 
 Committee of the House defended themselves from the the charge, 
 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 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 govern- 
 ment 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, environed 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 I am 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 
 declarations for their repelling, — be to raise and counte- 
 nance them in their unlawful actions, then am I guilty of 
 the fifth article. If by free vote to join with the Parlia- 
 
 ^ Forster, Arrest of the Five Members, 154-157. 
 c.ir. s s 
 
626 The Stuart Period, [Ch. 
 
 ment in publishing of a Remonstrance, in setting forth 
 declarations 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 obedience to his royal 
 Majesty, then I am guilty of the sixth article. If to con- 
 sent, by vote with the Parliament, to put forth proclama- 
 tions, or to send declarations to his Majesty's army, to 
 animate and 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 command, 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 
 Parliament in the reigns of Henry VIIL, Edward VI., 
 Elizabeth, and James, — if these be to draw his Majesty's 
 army into disobedience and to side with us in our dangers, 
 The Im- then am I guilty of the seventh article.' ^ When the last 
 wted'^r^ of the accused Members had resumed his seat, the Com- 
 scandaious mons 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 
 
 ^ 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. 623). The latter was probably only a draft, which was rearranged before 
 formal presentation. 
 
 paper. 
 
XIV.] Petition of Right to the Restoration. 627 
 
 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.^ 
 
 Forewarned of the King's approach at the head of 400 Attempted 
 or 500 armed men, the accused Members, by the desire of j^fngandan 
 the House, discreetly withdrew as the King was entering armed force. 
 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 
 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 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 scabbard : " a picture which Sir Ralph 
 Verney, who was present 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. 
 
 ^ Forster, Arrest of the Five Members, p. 1 72. 
 
 s s 2 
 
628 The Stuart Period. [Ch. 
 
 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 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 looked a great while he 
 The King's spoke again. " Gentlemen," he said, " I am sorry for this 
 speech. occasion of coming unto you. Yesterday I sent a serjeant- 
 at-arms upon a very important occasion to apprehend some 
 that by my command 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. 
 
XIV.] Petition of Right to the Restoration. 629 
 
 '' He then asked (continues D'Ewes) for Mr. HoUis, 
 whether he were present, 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 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 consequences, 
 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," continues 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 He retires 
 them, Privilege ! Privilege ! " With those words, ominous 
 of ill, ringing in his ear, he repassed to his Palace through 
 the lane, again formed, of his armed adherents, and amid 
 audible shouts of as evil augury from desperadoes disap- 
 pointed of their prey. Eagerly in that lobby had the word 
 
630 
 
 The Stuart Period, 
 
 [Ch, 
 
 Design 
 of the 
 attempted 
 arrest. 
 
 Its critical 
 nature. 
 
 been waited for, which must have been the prelude to a 
 terrible scene. " For the design was," pursues Sir Simonds 
 D'Ewes, writing at the close of his 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 peace- 
 ably and willingly ; which, for the preservation of the privi- 
 leges of our House, we 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 watchward 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 ! ' " ^ 
 
 ' 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 Com- 
 mons on the 4th of January, the Civil War had substan- 
 tially begun. Clarendon himself admits as much when he 
 
 ^ Forster, Arrest of the Five Members, pp. 184, 200. 
 
XIV.] Petition of Right to the Restoration, 631 
 
 calls it " the most visible introduction to all the misery that 
 afterwards befell the King and kingdom." ' ^ 
 
 The immediate question upon which the quarrel between Question of 
 King and Parliament untimately turned was the command ^ ^ ^ ^*^** 
 of the Militia. Ireland was in a state of rebellion, and a 
 large army was absolutely necessary to reduce that King- 
 dom to obedience. Justly persuaded of the utter insin- ' 
 cerity 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. 
 Th^ Bill for regulating the Militia presented to the King 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 prerogative, 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 ac- 
 cepted, 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 king- 
 dom. 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.' ^ 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 maybe said to have ended ^°^^{^^'J^'^_ 
 with the attempted arrest of the Five Members. test between 
 
 The Revolutionary period between 1642 and the Restora- his Pariia^ 
 tion of Charles II. in 1660 — highly interesting and in- i»ent. 
 
 * Forster, Arrest of the Five Members, pp. 376, 377. ' The attempt to 
 seize the five members was undoubtedly the real cause of the war.' — Macaulay, 
 (Essay on Hallam's Const. Hist.) [Essays, 1862, i. 149]. 
 
 2 Clarendon, Hist. ii. i8o. 
 
632 The Stuart Period, [Ch. 
 
 The Revolu- structive to the student of Political History, but not strictly- 
 Period, belonging to a work designed as a concise relation of the 
 1642-1660. progress of the English Constitution — must necessarily be 
 here passed briefly over. Within three years from the day 
 when Charles raised the Royal standard at Nottingham 
 (22 Aug., 1642), the Civil War was practically concluded. 
 The crushing defeat of the King at Naseby (14 June, 1645), 
 by the * New Model ' army under Fairfax and Cromwell, 
 followed by the rout of Montrose's forces at Philiphaugh 
 (13 Sept., 1645), reduced Charles to the position of a fugitive 
 in his own kingdom, and made a frank acceptance of the 
 least onerous terms which, after a fair negotiation, he could 
 obtain from his victorious people, the only means by which 
 he could ever regain the exercise of his Regal functions. 
 The submission of English Kings to the will of their people 
 was no new thing in the history of the Constitution. Even 
 Edward the First, the greatest of the Plantagenets, had 
 found it necessary to yield, and had yielded with loyalty and 
 good faith. But the principle of conduct by which Charles 
 was guided was the very opposite of that which the great 
 Edward proclaimed in his motto ^Pactum Serva! Defeated 
 in the field, he betook himself to intrigue and double-deal- 
 ing, in the hope that by fomenting discord between the 
 Scots and the English, between the Parliament and the 
 Army, and by dexterously playing off one against the other, 
 he might ultimately regain the enjoyment of Despotic 
 power. 
 
 The great difficulty was the Religious one. Laud and 
 Charles had endeavoured to establish a rigid ceremonial 
 uniformity ; the Parliament and the * Westminster Assem- 
 bly* of Divines (constituted 12 June, 1643) had substituted 
 an equally rigid uniformity of narrow Calvinistic dogma ; 
 the adoption of the * Solemn League and Covenant ' by the 
 English Parliament (25 Sept., 1643) had been exacted by 
 the Scots as an indispensable preliminary to the aid which 
 they rendered during the contest, and the maintenance of 
 the Presbyterian system in England was still with them an 
 object of paramount importance. On the other hand, the 
 
XIV.] Petition of Right to the Restoration, 633 
 
 victorious army of Fairfax and Cromwell, though composed 
 of men of widely differing views on religious matters, were 
 agreed, as a body, in protesting against the refusal of 
 toleration by both Episcopalians and Presbyterians alike, 
 and in a determination to secure for themselves, and for 
 all others, except the Roman Catholics, religious freedom 
 of thought and of speech. 
 
 After nearly three years of intermittent negotiation, when 
 at length there seemed to be a possibility of an agreement 
 with both Army and Parliament, on the basis of a Presby- 
 terian Establishment for three years combined with a 
 moderate measure of toleration, the King, in the midst of 
 the negotiations at Newport, entered into a secret treaty 
 with the Scots, binding himself to maintain the Presbyterian 
 worship in England for three years and to suppress all 
 other sects. In return, the Scots were to provide an army The En- 
 to replace him on the throne. In anticipation of the pro- "f S^'^^^' 
 mised aid, the English Royalists rose in various parts of the 
 country, and on the 5th of July, 1648, a Scottish Royalist 
 army entered England under the command of the Duke of 
 Hamilton. The English army under Cromwell and Fairfax 
 promptly took the field ; and the total defeat of Hamilton's 
 forces near Preston on the 17th of August, followed by the 
 surrender of Colchester, after a sharp siege, on the 27th of 
 the same month, brought the second Civil War to a speedy 
 close. Charles now returned to his old strategy of delusive 
 negotiations with the Parliament ; but for the Army, exaspe- 
 rated by the King's conduct and flushed with victory, the 
 day of negotiation had passed.^ To the fanatic belief of 
 
 * It was Charles's ineradicable duplicity which caused all efforts at accom- 
 modation to fail. Even moderate men were oppressed with the feeling of 
 utter distrust which his conduct inspired. In a curious pamphlet (preserved in 
 the British Museum) entitled * Ten Necessary Quseries touching the Personall TaswelVs 
 Treatie. Very useful and necessary to be considered. By James Taswell, ^ Ten Neces- 
 a true lover of King, Parliament, Truth and Peace. London : Printed ^^^ Quceries 
 by R. I. for A. H. 1648.,' the working of this feeling is well brought ^^^^;^^-«^ ^^^ 
 out. The pamphlet appears to have been issued about the end of July personall 
 or the beginning of August, and has reference to the proposal to bring Treatie ' 
 the King from the Isle of Wight to London for a ' personal treaty ' in op- 15^8. 
 position to the vote of the House of Commons expressing their readiness 
 
634 ^^^ Stuart Perioa. [Ch. 
 
 Charles in his Divine Right to govern the nation as to him 
 seemed best, was at length opposed the equally fanatic 
 belief of a Bible-reading soldiery that it was their duty to 
 see that ' Charles Stuart, the capital and grand author of 
 
 to re-open negotiations, on condition that he should previously assent to 
 three Bills revoking all declarations against the Parliament, establishing the 
 Presbyterian worship for three years, and vesting the command of the army in 
 certain persons for ten years. The writer, who, though a staunch Puritan, 
 was evidently a moderate man, and most anxious for an agreement * to heale 
 our lande, ' asks ( Query V. ) ' Whether the Parliament, under the notion of 
 Rebells and Traytors, are in a capacity to treat with the King or not ? and 
 whether the King must not of necessity repute them free subjects before such 
 a Treaty ; and if of necessity that must be done before the treaty, whether the 
 King may not, if he intend to doe it at all, do it as well in the Isle of Wight as 
 when he commeth to London ? And also why in these times of danger, the 
 King should urge the Parliament to let him come first to treat before he signe 
 (if he intended to be reall), and so desire the Parliament to run so great a 
 hazard and taske ? Query VI. : Whether if the Parliament should adventure 
 all the blood and treasure which hath been hitherto expended, at this one 
 cast, on the King's bare word (nay and he scarce passing that ?), whether the 
 Kingdome might not justly charge the Parliament with the breach of trust? 
 Query VII. : Whether the King may not at his comming to his pretended 
 Treaty, give commission, or onely intimate, which would be warrant 
 enough for some of his violent headlong accomplices, whom we see are so 
 inconsiderately eager to act for him, as that they would desire no better 
 warrant than for his Majesty to hold up his finger to them ; and so, whether 
 this pretended Treaty may not bee made an opportunity to make a further 
 breach with the Parliament ? And whether there be not some just cause given 
 for this doubt, by his Majesties unwillingnesse to afford the Parliament any 
 kinde of security which lyeth in him to withhold from them ? Query VIII. 
 Whether it be not to be doubted that the King hath some unseen designe 
 against the Parliament, in that he and his accomplices endeavour to remove 
 themselves from under the protection of the Parliament ? . . . And whether 
 this action of his Majesty be not sufficient to cause the Parliament and their 
 adherents to doubt whether the King hath such a desire to compose these 
 differences by apersonall Treaty, as many would make us believe he hath? . . . 
 'Query IX. Whether the Parliament, what dangers soever present themselves, 
 are not bound in conscience, by reason of the trust imposed on them by the 
 Kingdome, as also by their Oath and Solemne Covenant which they have 
 taken, to stand with the hazard of their lives and fortunes for the maintenance 
 and defence of that which appeareth unto their judgments and consciences to 
 be most just and safe, from which if they should be deterred by threatning 
 dangers, and so should embefezle the Subjects' priviledges, and bereave them 
 of their right, whether it may not be a burden to their soules in the day of 
 their accounts before Almighty God ? Query X. Whether if the Parliament 
 should by unexpected violence be surprised, whilst they lye under the brand 
 of Rebellion and Treason, and the King set up by the sword ? Whether, I 
 say, they and all their adherents should not be forthwith proceeded against as 
 Rebells and Traytors, they being already condemned by such as doubtlesse 
 would as willingly proceed to execution, had they but power? '&c. These sus- 
 picions were not ill founded. Only a few months previously, during the nego- 
 tiations at Hampton Court, the King had written to his wife : ' Be quite easy 
 as to the concessions which I may grant ; when the time comes, I shall very 
 well know how to treat these rogues, and instead of a silken garter, I will fit 
 them with a hempen halter.' — Clarendon, State Papers, ii. App. xxxviii. 
 
XIV.] Petition of Right to the Restoration, 635 
 
 all the troubles and woes that the kingdom had endured, 
 should be speedily brought to justice, for the treason, blood, 
 and mischief of which he had been guilty/ 
 
 Even before the illegal trial and execution of * Charles 
 Stuart, King of England ' (30 Jan., 1648-9), the reins of 
 government had passed alike from King, Lords and 
 Commons, into the firm grasp of the leaders of the Army. 
 After the ' purging ' of the House of Commons by Colonel [Pride's 
 Pride, the remnant, about fifty Members in all, became a 5 Dec. 1648. 
 mere instrument for carrying out the will of the soldiery. 
 When the few Peers who still continued to meet as the 
 House of Lords refused to concur in bringing the King to 
 trial, the truncated Lower House had assumed supreme 
 authority by voting (Jan. 4) that the people being, after 
 God, the source of all legitimate power, the Sovereign power 
 in England resided in the Commons who had been elected 
 by and represented the people. After the decapitation of 
 the King, the House of Lords was-^ithin a few days voted 
 ' useless and dangerous/ the Kingship abolished as * un- 
 necessary, burthensome, and dangerous,' and the old Consti- 
 tutional form of government, gave place to the Common- 
 wealth of England. At first, while the * Rump ' House of 
 Commons continued to exercise the functions of a Parlia- 
 ment, the Executive power was vested in a Council of State ^ 
 consisting of 41 persons, partly parliamentary, partly mili- 
 tary. But the genius of Cromwell as a born 'ruler of men,' 
 not less than the brilliant series of his military victories, 
 culminating in the ' crowning mercy ' of Worcester, soon 
 caused the real executive power to be concentrated in his 
 hands, even before it had been formally conferred upon 
 him, with the title of 'Lord Protector,' by the Instrument 
 of Government (16 Dec, 1653). There seems no reason to 
 doubt that Cromwell aimed at establishing a form of 
 
 1 The history of this body has been fully worked out by Mr. Andrew 
 Bisset in his Omitted Chapter in English history. [Mr. Bisset distinguishes 
 very strongly between the Parliamentary and the Cromwellian Councils of 
 State, in favour of the former. — Ed.] 
 
636 
 
 The Stuart Period, 
 
 [Ch. 
 
 [Political 
 and Consti- 
 tutional'] 
 Results of 
 he Revolu- 
 tionary 
 Period. 
 
 [Cause of 
 Absolute 
 Monarchy 
 lost.] 
 
 government in which the nation would ,be ruled by the will 
 of its elected representatives in Parliament, and under which 
 all men (the Roman Catholic as yet excepted) should possess 
 the great boon of religious freedom. But in practice he 
 failed to carry out his ideal. Toleration was only partially 
 conceded ; and while the government was in form a Re- 
 public, it was in truth ' a despotism, moderated only by the 
 wisdom, the sobriety, and the magnanimity of the despot.' ^ 
 Justice between man and man seems to have been ad- 
 ministered as fairly as, if not more fairly than, under the 
 Monarchy, but between the Government and the subject 
 arbitrary rule prevailed. After the Royalist rising at Salis- 
 bury (March 1655), when the Judges on circuit were seized 
 and even threatened with hanging, the country was mapped 
 out into military districts, under the command of Major- 
 Generals, by whom every insurrectionary movement was 
 immediately suppressed and punished. The death of Crom- 
 well (3 Sept. 1658), and the weakness of his son and suc- 
 cessor in the Protectorate, exposed the nation to the danger 
 of being ruled by a succession of petty military despots ; 
 and almost all parties, postponing their differences, political 
 and religious, welcomed back the Stuart dynasty and the 
 old Civil Polity of the kingdom. But although the legal 
 Constitution had been suspended during this period, and 
 revived again at the accession of Charles II., the Great 
 Rebellion of the English nation could not fail to produce 
 certain permanent Political and Constitutional results.^ 
 These may be summed up under the following heads : 
 
 I. 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 
 
 ^ Macaulay, Hist. i. [137]. 
 
 2 ' 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. 1 Petition of Right to the Restoration. 637 
 
 interdependence of Kings and Parliaments as necessary for 
 the good government of the country. 
 
 2. The predominant influence of the House of Com- [Predomin- 
 mons in the government of the nation was permanently ^f House of 
 established, and has ever since been growing more and ^^^'JJJ^^/^^ -, 
 more marked and decisive. The overthrow of the Crown 
 aad 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 ascendancy. 
 The Royalist House of Commons of Charles U., in its rela- 
 tions to the Crown and the administration of the country, 
 inherited, defended, and transmitted to its successors, the 
 conquests of the Long Parliament.^ 
 
 ^ A singular proof of the influence of the Commons under Charles 11. is Collisions 
 furnished by the result of the famous controversy between the two Houses as between 
 to the original jurisdiction of the Lords in the case of Skinner v. The East Lords and 
 India Company. The Lords having entertained a petition of Skinner again^>t Commons 
 the Company, overruled the defendants' plea to the jurisdiction, and con- U7ider 
 demned them to pay the plaintiff i^5,ooo, the Company presented a complaint Charles II. 
 to the House of Commons. The Commons resolved 'that the Lords, in r-t- 
 taking cognizance of an original complaint, and thatrelievable in the ordinary Wast'^ India 
 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 ^^{tS^< 
 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 * agree- 
 able to the laws of the land, and well waranted by the law and custom of 
 Parliament, and justified by many Parliamentary precedents 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 whoever 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 ;!{^500. 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 recommendtd 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 juris- 
 diction in Civil suits. The Houses also came into collision on account of « hat 
 was deemed a breach of privilege in the citation of members of tlie Commons 
 to appear before the Lords as respondents in Chancery appeals. The mast Shirley \. 
 celebrated case is the appeal of Shirley against Sir John Fagg, in 1675, which Fagg. 
 gave rise to much intemperate behaviour on both sides, and induced the [1675.] 
 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 
 
638 The Stuart Period, [Ch. xiv. 
 
 ^Definitive 2. The complete and definitive rejection of Romanism 
 ^Romanism:\ 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 Par- 
 liament, it was patently the Church not of the whole 
 nation but of a majority only. Thenceforward, as the 
 other religious communities have gradually attained 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 
 legally 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 contradistinction from all other religious 
 bodies.^ 
 [Antipathy 4. Another important result of the revolutionary crisis 
 'Armies!\^ through which the nation had passed was the develop- 
 ment of an intense national antipathy to a standing 
 army, and of a wide-spread distrust of men of extreme 
 views. 
 
 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, success- 
 fully resi>ted the right of the Lords to amend Money-Bills {supra, p. 598, n. i). 
 Hallam, Const. Hist. iii. 30. 
 
 1 See Guizot, English Revolution ; and Freeman, Disestablishment and 
 Disendownment. 
 
 [On the Religious as well as the Political attitude of the Commons /. Car. I. , 
 cf. Burrows' Parliament and the Church of England, c. ii., where it is strongly 
 urged that the Commons were practically the only ' representative of the lay 
 voice of the Nation : ' op. cit. p. 47. On the history and meaning of the phrases 
 Establishment and Established Church, and the sense in which the Church of 
 England may be regarded as Established, cf. Pt. ii. of Brewer's Church of 
 England, ed. by L. T. Dibdin.— Ed.] 
 
639 
 
 CHAPTER XV. 
 
 THE STUART PERIOD. 
 
 III. FROM THE RESTORATION TO THE PASSING OF THE 
 BILL OF RIGHTS (1660 — 1 689). 
 
 The reign of Charles 11.^ has been epigrammatically CHARLES 
 described as the * era of good laws and bad government ; ' ^ (660-1685. 
 but whilst the bad government was continuous, the good 
 laws appeared only at intervals amidst many others of a Chief Con- 
 violent and questionable character. We shall briefly consider gf^ultes^of 
 the principal statutes of Constitutional importance. his reign. 
 
 During the Commonwealth the vexatious emoluments Abolition 
 derived from the military tenures had been suspended, 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 ousterlemainSj values and forfeiture of marriages, 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 Par- 
 liament) : And that all fines for alienation, tenures by 
 homage, knight service, and escuage, and also aids for 
 
 1 By a legal fiction, the first year of Charles 11. 's reign was called the 
 twelfth ; King de jure^ on the death of Charles I., 20 January, 1648-9 ; King 
 de facto, at the Restoration, 29th May, 1660. 
 
 2 Fox, Reign of James II. p. 22. 
 
640 The Sttiart Period, [Ch. 
 
 marrying the King's daughter or knighting his son, and 
 all tenures of the King in capites be likewise taken away : ^ 
 And that all sorts of tenures, held of the King or others, 
 be turned into 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. 
 The immediate and direct benefits conferred by this Act 
 constituted a grateful boon to the landowners of the king- 
 dom, and, so far as regards the abolition of purveyance, 
 to the nation at large. Indirectly, too, the whole nation 
 gained by the simplification of tenure, and more especially 
 by the * important change in the spirit of our constitu- 
 tion,' which Hallam has noted as a consequence of the 
 curtailment, by this statute, of the prerogative of the 
 Crown, which *by its practical exhibition in these two 
 vexatious exercises of power, wardship and purveyance, 
 kept up in the minds of the people a more distinct per- 
 ception, 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.'^ In 
 
 1 For the incidents of Feudal tenure, see supra, p. 64. 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 persons from holding immediately 
 under the Crown. Indeed, it is in this manner that land in fee is now most 
 usually held.'— Stephen, Comm. (5th ed.) i. 209, n. g. 
 
 2 [Such are the tenures by which the manor of W^oodstock is held by the 
 Duke of Marlborough, rendering on the second day of August in every year 
 for ever, at the Castle of Windsor, one standard of colours, with flower-de- 
 luces painted thereupon, and the Strathfieldsaye estate by the Duke of 
 Wellington, viz., the * annual rendering to the Sovereign of a flag bearing the 
 Royal arms, on the anniversary of the Battle of Waterloo.' For the Duke of 
 Marlborough's tenure, see Woodstock Manor (Oxford and London. 1873), by 
 Rev. E. Marshall, M.A. Mr. Marshall prints a contemporary Specification as 
 well as the operative parts of the 3 & 4 Anne, c. 4 (or 6), which enabled the 
 Crown to grant the Royal manor of Woodstock in perpetuity, contrary to the 
 previous legislation of the same reign. For the tenure of Strathfieldsaye, see 
 Burke's Peerage, s. v. Wellington. A certain amount of confusion in the 
 minds of the draftsmen of the 12 Car. II., c. 24, is pointed out by Digby, 
 Hist, of Law of Real Property, p. 352. For Grand Serjeanty, of. Digby, op. cit. , 
 PP- 38, 355--ED.] ,. 
 
 =^ Hallam, Const. Hist. u. 311. 
 
XV,] Restoration to the Bill of Rights, 641 
 
 consideration of the surrender of these Feudal privileges 
 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 Hereditary 
 powerful in Parliament, the landowners succeeded, though granted in 
 only by the small majority of two, in substituting a exchange. 
 hereditary Excise on beer and some other liquors, thus 
 transferring their own particular burthen to the community 
 at large.^ 
 
 By the 13 Car. II. st. i, c. 5, it was enacted that no peti- Act against 
 tion to the King or either House of Parliament for altera- p^ut^ioning. 
 tion of matters established by law in Church or State (unless 1661. 
 the contents thereof had been previously approved, in the 
 country by three Justices of the Peace or the Grand Jury 
 of the county, and in London by the Lord Mayor, Alder- 
 men, and Common Council), should be signed by more 
 than twenty, or delivered by more than ten, persons, under 
 penalty in either case, of ;^ioo 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, ^"^^ petition the 
 seems to have been exercised from the earliest times. But Crown and 
 
 Farhament. 
 
 for many centuries it was practically restricted to peti- j^^ historical 
 tions for redress of private and local grievances, and the deveiop- 
 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 peti- 
 
 1 The Excise was not a newly invented tax, having been originally imposed 
 by the Long Parliament in 1643. [The introduction of the Excise into England 
 was anticipated and feared, says Dowell, as early as the reign of James I. , as 
 it had been a success in the Low Countries, and James was a known imitator of 
 Continental systems of taxation. Hist, of Taxation in England^ i. p. 2 1 7. — E d . ] 
 
 C.H, , T T 
 
642 The Stuart Period, [Ch. 
 
 tions, 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 Parliament which prompted this restraining Act of 
 Charles II. In December, 1679, in consequence of the 
 dissatisfaction 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 punishment 
 This, though it checked, did not entirely prevent the pre- 
 sentation of these petitions. Counter-addresses were there- 
 fore sent up to the Throne from Grand Juries, magistrates, 
 and many corporations, expressing their abhorrence of the 
 petitions for the assembling of Parliament ; whence the two 
 principal parties in the country subsequently 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 sanc- 
 tioned ; but the House of Commons for a long time showed 
 itself intolerant of a free expression of opinion, and ex- 
 tremely 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 pray- 
 ing 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. Seven years later, however, in 1779, a 
 widely organised attempt to procure Parliamentary and 
 -economical reform gave rise to a general system of peti- 
 tioning, in which the freeholders of Yorkshire led the way 
 and were soon followed by many other important counties 
 
XV.] Restoration to the Bill of Rights, 643 
 
 and by the principal cities. ' This/ observes Sir Erskine 
 May, ' 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. Corresponding committees being established 
 in various parts of the country were associated for the pur- 
 pose of effecting a common object by means of petitions, 
 to be followed by concerted motions made in Parliament. 
 An organization which has since been so often used with 
 -success was now first introduced into our political system.'^ 
 The great movement for the abolition of the Slave Trade, 
 which began with a petition from the Quakers in 1782, 
 affords the most remarkable example of the direct in- 
 fluence of petitions upon the deliberations of Parliament. 
 But it was not until the latter part of the reign of 
 George IV. that petitioning obtained the development 
 which has since distinguished it in all the great politi- 
 cal movements. Not only is the right to petition now 
 fully recognised, 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.' 2 
 
 In the session of 1665 the Commons took advantage of Appropria- 
 the necessity under which the King lay, of asking for ex- sl^JJJjiies 
 
 ^ May, Const. Hist. ii. 63 seq. 
 
 2 [Denman's Broom's Const. Law, p. 511. — Ed.] It was, however, ex- • 
 
 pressly decided by Lord Mansfield, on the trial of Lord George Gordon for 
 his share in the ' No Popery' riots of 1780, that the Act of Car. II. had not 
 been repealed ; and it was cited in 1848, when it was found necessary to pro- 
 ihibit the large body of Chartist petitioners from carrying out their declared 
 intention of marching to the House to present their petition. [This Act has 
 also been relied upon, it is believed, very recently, in connection with tumultu- 
 ous gatherings anticipated in the immediate neighbourhood of the Houses of 
 Parliament. Cf. Law Magazine and Review, No. cclxviii., for May, 1888, 
 Art. Trafalgar Square, by B. L. Mosely, LL. B. , and No. cclxix. , for August, 
 1888, Art. New Phases of Trafalgar Square.— Ed.] 
 
 T T 2 
 
644 ^'^ Stuart Period, [Ch. 
 
 traordinarily 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 ;^i_,25o,ooo 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 pay- 
 able for such service. Despite the furious opposition of 
 Clarendon, who stigmatised the proviso as derogatory to 
 the honour of the 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.^ The principle of appro- 
 
 1 17 Car. II. c. I. 
 Growth of 2 The commencement of the National Debt dates from the reign of Charles 
 the National II. During the Civil War large sums of money were deposited, for safe 
 Debt. 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 Proclama- 
 tion 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 
 ;^l, 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, 1705) charging 
 the Excise with payment, from the latter date, of 3 per cent, interest on the 
 principal sum of ;^i, 328,526, redeemable on payment of a moiety, but no 
 compensation was made for the loss of twenty-two years' arrears of interest. 
 Bank of Five years pi-eviously, in 1694, the sum of ;^ 1,200, 000 at 8 per cent, interest 
 England had been borrowed by the Government from a body of merchants, who, in 
 established^ return, received the privilege of incorporation, by Royal Charter, as 'The 
 1694, 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 ;^i6,ooo,coo ; 
 under Queen Anne it reached the sum of ;^54,ooo,ooo. The Spanish War, 
 which commenced in 1739, added ;^3i, 300,000; and in 1763, after the Seven 
 Years' War, the debt amounted to ;^ 1 46, 000, 000. The American War of 
 
XV.] Restoration to the Bill of Rights. 645 
 
 priating the supplies was by no means a novelty in the 
 Constitution, but it had only been put into practice occa- 
 sionally and at long intervals.^ The complete authority 
 exercised by the Commons, during the late Civil War and 
 the Commonwealth, over the whole receipts and expendi- 
 ture of the national treasury, had accustomed the House to 
 regulate the disbursement of the sums which they granted ; 
 the advantage to the nation from their control of its 
 finances was self-evident ; and from the date of the Appro- 
 priation Act of Charles II. it became ' an undisputed prin- 
 ciple, recognised by frequent and at length constant 
 practice,' that ' supplies granted by parliament are only to 
 be expended for particular objects specified by itself '^ The 
 principle of appropriation was not, however, carried into 
 full effect till after the Revolution. But from the reign of 
 William III. it has been the invariable usage to insert a 
 clause in the annual Appropriation Act prohibiting, under 
 
 Independence increased the debt by ;^i2i, 000,000 ; and ;^6oi,ooo,ooo was 
 added during the great French War, at the close of which it had reached the 
 enormous total of ;^840,85o,49i, involving an annual expenditure for interest 
 and management, of _;^32,038,i9i. 
 
 The apprehensions excited by the steady advance of the debt caused efforts Attempts to 
 to be made at an early period for its reduction. Sir Robert Walpole instituted reduce the 
 a Sinking Fund, of which great hopes were entertained, and under the operation debt, 
 of which the capital amount had been reduced by about ;^7,ooo,ooo prior to 
 the outbreak of the Spanish War in 1739. Some further slight reductions 
 were made during subsequent intervals of peace, and in 1 786 Mr. Pitt estab- 
 lished his famous permanent Sinking Fund of ;^i, 000,000 a year, which was 
 perseveringly maintained for many years, even when it was necessary to con- 
 tract 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. By an Act passed in 1875, provi- 
 sion has been made for its gradual reduction by means of a new permanent 
 Sinking Fund, maintained by annual votes. 
 
 [Since the third edition of the present work, Rt. Hon. G. J. Goschen has 
 marked his tenure of the Chancellorship of the Exchequer by great changes in 
 Consols, a new 2| per cent, stock having taken the place of the old 3 per cent. , 
 under the familar appellation of ' Goschens,' and the India 4 per cent. Stock 
 has been converted into 3^ per cent, stock, the ultimate object being, pre- 
 sumably, the extinction of the National Debt by gradual reductions. Whether 
 this extinction will ever really take place may perhaps be doubted, and how far 
 such extinction, if accomplished, would prove worth the accomplishment may 
 perhaps also be open to question. — Ed.] Cf. Earl Russell, Eng. Gov. and Const. 
 225; Hallam, Const. Hist. iii. 132, 212; Macaulay, Hist. i. 169; and the 
 Statesman's Year Book (by F. Martin) for 1879 [on the subject generally]. 
 
 1 Supra, pp. 286, 299, 324. 
 
 2 Hallam, Const. Hist. ii. 355-6. 
 
646 The Stuart Period, [Ch. 
 
 severe penalties, as well the Lords of the Treasury from 
 issuing, as the officers of the Exchequer from obeying-, 
 any warrant for the expenditure of money in the national 
 Exchequer upon any other service than that to which it has- 
 been specifically appropriated. The permanent establish- 
 ment of the principle and practice of appropriation *has 
 given the house of commons,' remarks Hallam, * so effec- 
 tual 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 concurrence ; 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 govern- 
 ment (for the 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 Stuarts. The supplies, meted out with niggardly cau- 
 tion 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 appli- 
 cation.' ^ 
 Commission In the session of 1666, the demand of large additional 
 acwnmts 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 com- 
 mittee to inspect the accounts of the officers of the Navy, 
 Ordnance, and Stores, and subsequently sent up a Bill ap- 
 pointing Commissioners to inspect the pubHc accounts, with 
 full powers to enquire 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 pro- 
 mised to issue a Royal Commission for the examination of 
 
 * Const. Hist. iii. 116-7. 
 
XV.] Restoration to the Bill of Rights, 647 
 
 the accounts. In the following session, 1667 (Lord Claren- 
 don having fallen in the interval), the Commons re-intro- 
 duced their Bill, which passed as * An Act for taking the 
 accounts of the several sums therein mentioned.'^ Com- 
 missioners (who were to report from time to time to the 
 King and both Houses of Parliament) 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 authorised to examine upon oath, to summon 
 inquests, to commit to prison without bail all persons dis- 
 obeying their orders, and to determine finally on the charge 
 and discharge of all accounts ; 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.^ The passing of this statute marked a further step 
 in that transfer of the control of the Executive administra- 
 tion from the Crown to the House of Commons, which, 
 throughout the long existence of the ' Pensionary ' Parlia- 
 ment of Charles H., was quietly but steadily proceeding. 
 
 Of all the statutes passed in the reign of Charles H. Habeas 
 perhaps the most celebrated is the Habeas Corpus Act. ^°Z^^f ^^ 
 But although this Act afforded to the subject a prompt and 
 efficacious remedy in many cases of illegal imprisonment, 
 it is a mistake to suppose that it introduced any new 
 principle or conferred any new right. 
 
 The right of personal liberty — the most precious of all Ancient 
 
 • 1^ . ,- ,^ .. .1/.T . remedies for 
 
 rights — IS as old as the Constitution itself. It rests upon niegai de- 
 the Common Law, which was merely defined and declared tention. 
 by Magna Charta and the stream of statutes which affirm 
 that enactment. The subject was therefore always legally 
 
 1 19 Car. II. c. 9. 
 
 2 Hallam, Const. Hist. ii. 358-9. A great deal of abuse and misapplication 
 of 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. 
 
648 The Stuart Period. [Ch. 
 
 free from detention except upon a crinynal charge or con- 
 viction, or for a civil debt. Besides the ancient writs De 
 odio et atid and De homine replegiando (which were avail- 
 able only in particular cases)/ any freeman imprisoned 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 command- 
 ing 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 discharge him, according to 
 the nature of the charge. This writ issued of right, and 
 ex debiio justitiae, and could not be denied. It possessed. 
 Inadequacy however, various defects. I. The gaoler was not bound to 
 ancient make an immediate return to the writ, but might wait for 
 remedies], 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 Com- 
 mon Pleas could issue this writ ; and the Court of Exche- 
 quer seems never to have done so. It was also doubtful 
 whether a single Judge of the Court 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 
 j the ' special command of the King ' was per se a sufficient 
 J cause to justify the commitment and detention of a subject. 
 This vitally important point was, as we have seen, elabora- 
 rately argued in Court and in Parliament, in the great case 
 of the Five Knights {Darners case) in 1627, and was in- 
 tended to have been settled by the Petition of Right which 
 declared against it.2 The arbitrary arrest of Sir John Eliot, 
 Selden, and other Members, on the dissolution of Parlia- 
 ment in 1629, and the attempt made to evade the words of 
 
 1 Suj>ra, pp. 127, 137. 
 
 2 Supra, pp. 561, 563, 569. 
 
XV.] Restoration to the Bill of Rights. 649 
 
 the Petition of Right by setting forth in the warrant and in 
 the return to the habeas corpus a colourable cause of com- 
 mitment, * notable contempts of the King and government 
 and stirring up sedition,' led to the enactment of the re- 
 medial clauses concerning the writ of habeas corpus con- 
 tained in the Act which abolished the Star Chamber.^ 
 
 Under Charles II. the arbitrary conduct of Lord Claren- 
 don, in procuring political offenders to be illegally im- 
 prisoned 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.^ 
 In April, 1668, a Bill to prevent the refusal of the writ of Abortive 
 habeas corpus was introduced in the House of Commons, \ x^^ly. 
 but did not pass through committee. In March, 1670, 
 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 exemplified in the case of Yxd^noAsJenkes'scase^ 
 Jenkes, a citizen of London. He had delivered a speech ^ ' * 
 at the Guildhall urging that a Common Council should 
 speedily be held to petition the King, in the name of the 
 City, to call a new Parliament. For this he was summoned 
 before the Privy Council and committed to prison. Various 
 attempts were unsuccessfully made to obtain his enlarge- 
 ment. The Court of Quarter Sessions for Westminster 
 refused to admit him to bail, on the plea that he had been 
 committed 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 
 
 1 16 Car. I. c. 10. Supra^ pp. 578, 607. 
 
 2 Supra, p. 545, n. 
 
650 The Stuart Period, [Ch, 
 
 the King's Bench, to whom in the next place recourse was 
 had, made so many difficulties that Jenkes lay in prison 
 many weeks before he was eventually enlarged on bail. 
 The Act of At length, in 1679, three years after the proceedings in 
 1679. 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 prevention of imprisonments beyond 
 the seas/ and it is restricted to the case of persons imprisoned 
 (before sentence) for * criminal or supposed criminal mat- 
 Provisioftsoft^^^- It enacts : — (i) That on complaint and request in 
 ^c^^^^At waiting by or on behalf of any person committed and 
 1679. charged with any crime (unless committed for treason or 
 
 felony plainly 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 convicted 
 or charged in execution by legal process) the Lord Chan- 
 cellor or any of the Judges in vacation, upon viewing a copy 
 of the warrant, or affidavit that a copy is denied, shall 
 (unless the party has neglected for two whole terms after 
 his imprisonment to apply to any court for his enlarge- 
 ment) award a habeas corpus for such prisoner, returnable 
 immediately before himself or any other of the Judges. 
 And upon service thereof the officer in whose custody the 
 prisoner is shall bring him before the said Lord Chan- 
 cellor or other Judge, with the return of such writ and the 
 true cause of the commitment ; and thereupon, within two 
 days after the party shall be brought before them, the said 
 Lord Chancellor or other Judge shall discharge the prisoner, 
 if bailable, upon giving security, in any sum according to 
 their discretion having regard to his qualit)^ and the nature 
 of his offence, 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 the same. (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 after service of the writ. (4) That officers 
 
XV.] Restoration to the Bill of Rights. 65 1 
 
 and keepers neglecting or refusing to make due returns, or 
 not delivering to the prisoner or his agent within six hours 
 after demand a true copy of the warrant of commitment 
 or shifting the custody of the prisoner from one to another, 
 without sufficient reason or authority (specified in sec. 8 of 
 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 to the party of ;^500. (6) That every 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 it appear, upon oath 
 made, that 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 
 imprisonment 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 from the common gaol 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 view of the copy of the war- 
 rant, or oath that such copy is refused, shall forfeit severally 
 to the party grieved the sum of ;^500. (8) That this writ 
 of habeas corpus shall run into the Counties Palatine, the 
 Cinque Ports, and other privileged places, and the islands 
 of Jersey and Guernsey. (9) That no inhabitant of Eng- 
 land (except persons contracting, or convicts praying, to 
 be transported, or having committed some capital offence 
 in the place to which they are sent) shall be sent prisoner 
 to Scotland, Ireland, Jersey, Guernsey, Tangier,^ or any 
 
 ^ The fortress of Tangier in Africa (together with the island of Bombay) 
 was acquired by Charles II., in i66[i], as a portion with his wife Katherine of 
 
652 
 
 The Stuart Period. 
 
 [Ch. 
 
 ^i^^p^^J^ 
 
 Its defects. 
 
 Remedied 
 by Bill of 
 Rights, 
 1689. 
 
 56 Geo. Ill, 
 c. 100, 
 1816. 
 
 places beyond the seas within or without the King's domi- 
 nions, on pain that the party committing, his advisers, 
 aiders, and assistants, shall forfeit to the party aggrieved a 
 sum not less than £^QO, 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 receiving the King's pardon for any of the said forfeitures, 
 losses, or disabilities.^ 
 
 Such is the substance of this great and important statute. 
 It was subject, however, to three defects, (i) It fixed 
 no limit on the amount of bail which might 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 sub- 
 sisted 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 imprisonment on non-criminal 
 
 Braganza. It was abandoned in l68[4]. [For the history of Tangier as a 
 British possession, cf. The History of the Second Queen's Royal Regiment^ by 
 Lt.-Col. Davis, F.S,A., vol. i. Lond. 1887, and The Moors Baffled: A 
 Discourse concerning Tangier . . . under the government of . . . Andrew y 
 Earl of Tevioty Lord Rutherfurd (Preface signed by George, Lord Ruther- 
 furd, i.e.y George Durie of Grange, styling himself Lord Rutherfurd), 2nd ed. 
 Edinb. 1738. It appears from Col. Davis's researches, op. cit., i. 11-17, that 
 the commission, printed loc. cit.^ of the Earl of Peterborough, the first British 
 Governor of Tangier, was dated 6th Sept., 1661, and that the last British 
 Governor, the Earl of Dartmouth, left Tangier Roads, on the completion of 
 the evacuation, not till on or after 7th March, 1683-4, the date of the final 
 Muster of Troops on board the Grafton^ which carried the Governor, Pepys 
 agreeing with this in his Journal of his voyage from Tangier to England, 
 March 5-15, 1683-4, cited by Col. Davis, op, cit.^ i. 252, from Smith's Life oj 
 Pepys, ii. 33.— Ed,] 
 
 ' 31 Car. II. c. 2; and see Stephen, Comm. (5th ed.) iv. 25. 
 
XV.] Restoration to the Bill of Rights, 653 
 
 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 2<, 8c 26Nic\,. 
 terminates with the Act 25 & 26 Vict. c. 20 (passed in 1862' 
 consequence of the decision of the Court of Queen's Bench 
 in Anderson's case} 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 establisjied 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 Acts against 
 have been considering, is the series of odious acts against fo^mirts. 
 the Nonconformists passed by the ' Cavalier ' or ' Pen- 
 sionary ' Parliament of Charles II. This Parliament — *the 
 Long Parliament of the Restoration,' which lasted from 
 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.' 2 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 Established 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. i) a Religious test was '^' 
 combined with a Political test. All corporate magistrates 
 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 Cove- 
 
 1 30 Law Journ. Rep. Q. B. 129. 
 
 2 Macaulay, Hist. i. [176]. 
 
^54 
 
 The Stuart Period, 
 
 [Ch, 
 
 Test Act, 
 1673. 
 
 nant, and to swear that they believed it unlawful, on any 
 pretence whatever, to take arms agaipst the King, and 
 that they abhorred the ' traitorous position ' of bearing 
 arms by his authority against his person or his officers. 
 * These provisions,' remarks 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 proportion of its 
 members.' ^ But they equally affected all other Non- 
 conformists, and established an inequality of Civil rights 
 between Churchmen and Dissenters which continued down 
 to our own day.^ The Political test contained in the Cor- 
 poration oath of non-resistance, having been practically 
 renounced at the Revolution, was abolished in 17 18, 
 shortly after the accession of the House of Hanover, by 
 the * Act for quieting and establishing corporations ' 
 (5 Geo. I. c. 6, s. 2). The Religious test was not repealed 
 till the reign of George IV.^ 
 
 The famous Test Act (25 Car. H. c. 2) was passed in 
 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 an unavowed 
 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 National Church and 
 Civil liberties of England. The precise terms of this 
 
 1 Hallam, Const. Hist. ii. 328. 
 
 2 [The distinction between the two classes of oppressive legislation embodied 
 in the Corporation and Test Acts is briefly but clearly shewn by Mr. B. C. 
 Skottowe, M.A., in Our Hanoverian Kings, 1884, pp. 139-41, where the 
 political character of the repression of the Roman Catholic subjects of th 
 Crown is pointed out, with the reference which it bore to European as well as 
 to Home politics. — Ed.] 
 
 3 9 Geo. IV. c. 17 (1828). 
 
XV.] Restoration to the Bill of Rights. 655 
 
 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.'^ The King's Declaration of Indulgence 
 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 pretensions, in explicit 
 terms, to suspend a body of statutes, and his 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 ecclesiastical cannot be 
 suspended but by Act of Parliament,' and addressed the 
 King to recall his Declaration. In his answer the King 
 lamented that the Commons should question his Eccle- 
 siastical 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 acknow- 
 ledged to reside in the King and the two Houses of Parlia- 
 ment.' ^ At length the King was obliged to ^\\^ way, and 
 
 1 Hallam, Const. Hist. ii. 384. 
 3 Cobbett's Pari. Hist. iv. 551. 
 
656 
 
 The Shiart Period, 
 
 [Ch. 
 
 cancelled the Declaration. But the Commons, not satis- 
 fied with this concession, extorted his assent to the Test 
 Act, as a measure of security against Popish counsellors 
 and officials. The Act, howeveriWas 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 supremacy, and 
 subscribe a declaration against Transubstantiation. 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. 
 
 In return for the support given by the Dissenters to the 
 Test Act, a Bill was passed, after some debate, by the 
 House of Commons, giving a considerable amount of relief 
 to Protestant sectaries ; but it was delayed in the Lords' 
 House, who introduced several amendments, and a sudden 
 prorogation caused it to be dropped. 
 
 Five years later, in 1678, a Parliamentary Test -wdiS im- 
 
 ary Test Act, posed which, for the first time, excluded Roman Catholic 
 
 Peers from Parliament. This was mainly due to the alarm 
 
 excited in the nation by the discovery of the supposed 
 
 Popish plot.^ By the 'Act for the more effectual pre- 
 
 Bill for re- 
 lief of Dis 
 senters. 
 
 Parliament- 
 
 * * 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, 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 three kingdoms, and 
 by that perhaps the utter subduing of a pestilent 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 is become (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 imports us to get all the aid and assistance 
 
XV.] . Restoration to the Bill of Rights, 657 
 
 serving the King's person and government, by disabling 
 Papists from sitting in either House of Parliament ' (30 
 Car. II. St. 2, c. i), it was provided that no Peer, or mem- 
 ber of the House of Commons, should sit or vote without 
 taking the oaths of allegiance and supremacy, and a decla- 
 ration 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.^ 
 
 In the Declaration issued by Charles II. from Breda 
 (14 April, 1660), he had embodied the Cromwellian prin- 
 ciple, that no man should be called in question for differ- 
 ences of religious opinion not disturbing the peace of the 
 kingdom. But the great majority of the Enghsh people 
 were not yet prepared to concede Toleration ; and by the . 
 
 Act of Uniformity all Dissenters from the Established Act of ^ / 
 Church, Protestant and Roman Catholic alike, were sub- 1662^"^^ \ 
 jected to the bonds of a rigid conformity. The provisions 1 
 
 of this celebrated statute (13 & 14 Car. II. c. 4) may be 
 divided into two classes: (i) Clauses which continue in 
 force at the present day, viz., those which legalise 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 declaration from all such persons of un- 
 feigned assent and consent to the contents of the Book of 
 
 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. 420. 
 
 ^ 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. 466). 
 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. 
 
 C.H. U U 
 
658 The Stuart Period, [Ch. 
 
 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 
 (1558-9) was re-enacted ; and as this incorporates by refer- 
 ence penal clauses in the earlier Uniformity Act of 5 & 6 
 Edw. VI. c. I (155 1-2), which again incorporates similar 
 clauses in the Uniformity Act 2 & 3 Edw. VI. c. i (1548), 
 the statute of Charles II. revived and confirmed, {a) the 
 offences of * declaring or speaking anything in the deroga- 
 tion, 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 (^) the compulsory 
 attendance at parish churches. These provisions were not 
 repealed till the reign of her present Majesty.^ 
 
 The 14th sec. of the Act of Charles II. declared 'that no 
 person should presume to administer the holy sacrament 
 of the Lord's Supper ' until he should be ordained priest 
 by Episcopal ordination, under the penalty of ;^ioo for 
 such offence. This penalty was repealed in 1688 by the 
 Toleration Act of William and Mary.^ 
 
 By the 9th sec, not only all persons in holy orders, but 
 all schoolmasters and persons instructing youth, were re- 
 quired 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' im- 
 prisonment if they should presume to exercise their calling 
 without previous licence from the bishop of the diocese. 
 That part of the declaration which related to non-resistance 
 was abolished at the Revolution by statute i Will. & Mary, 
 c. 8 ; but the licence of private tutors, though in later times 
 
 » 7 & 8 Vict. c. 192 ; 9 & 10 Vict. c. 59. 
 » I Will. & Mary, st. i, c. 18. 
 
XV.] Restoration to the Bill of Rights, 659 
 
 practically obsolete, was not repealed till 1846 by 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 
 (for the most part non-episcopally ordained), who further 
 recruited the ranks of Protestant Nonconformists. But these 
 were not allowed to worship among themselves in peace. 
 By the monstrous Conventicle Act (16 Car. II. c. 4) Conventicle 
 every person above sixteen years of age present at a con- '^'^^* ^^^^' 
 venticle (defined as ' any meeting for religious worship at 
 which five persons were present besides the household') 
 was subjected to the penalty of three months' imprison^ 
 ment 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 Con- 
 stitution '), 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.^ 
 
 This enactment was followed, in the next session, by Five-Mile 
 ' An Act for restraining Nonconformists from inhabiting in ^ ' 
 corporations' (17 Car. II. c. 2). By this 'Five-Mile Act/ 
 as it is usually termed, (i) a new test oath of non-resistance 
 was imposed upon the clergy; (2) every Nonconformist 
 minister was prohibited, under the penalty of;^40 fcr each 
 offence, from coming within five miles of any corporate 
 town; or of any parish, town, or place wherein he had been 
 parson, vicar, curate, stipendiary, or lecturer, or had taken 
 
 1 On the Uniformity, Test, and Corporation Acts, see Andrew Amos, 
 English Constitution in the Reign of Charles II., pp. %'j^ 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. I. 
 
 u u 2 
 
66o The Stuart Period, [Ch. 
 
 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 £dp fine and six months' 
 imprisonment. 
 Persecution The provisions of these merciless statutes were not 
 formistr^* allowed to remain a dead letter. The Religious persecu- 
 tion was far more severe than it had ever been at any 
 period of the Commonwealth, and more widely extended 
 than under Charles I.^ 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.^ 
 Attempts at In 1 66 1 at the Savoy Conference, in 1669 under the 
 Comprehen- c^bal Ministry, and again in 1674 through the exertions of 
 Tillotson and Stillingfleet, 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. 
 Origin of It was in the year 1679, during the intense public agita- 
 
 and Tor^ tlon caused by the introduction of a Bill to exclude the 
 parties. 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 Parlia- 
 ment 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 the attempt to 
 coerce the King to summon Parliament, as an encroach- 
 ment on the Royal prerogative. The rival parties were 
 termed in consequence * Petitioners ' and ' Abhorrers,' names 
 
 1 Hallam, Const. Hist. ii. 351. 
 
 3 Neal, Hist, of the Puritans, v. 17; Delaune, Plea for Nonconformists 
 Short's Hist. 559. 
 
XV.] Restoration to the Bill of Rights, 66 1 
 
 which were soon afterwards changed for ' Whig ' and 
 'Tory.'i 
 
 But although the Whigs and Tories were first so desig- 
 nated 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 
 itself during the debates on the Grand Remonstrance in 
 
 /' Both Whigs and Tories, it is to be observed, agreed in Difference 
 maintaining the system of government by King, Lords, and beiween^he 
 Commons, and all the ancient and fundamental institutions two parties. 
 of the English Constitution. But there was, nevertheless, a 
 wide and irreconcileable 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 constitution, was an ultimate point, beyond which he 
 never looked, and from which he thought it altogether 
 
 1 Supra, p. 642. ' It is a curious circumstance,' observes Lord Macaulay NatJies of 
 [Hist. i. 258], 'that one of these nicknames was of Scotch, and the other of Whig and 
 Irish, origin. Both in Scotland and in Ireland misgovernment had called into Tory, 
 existence bands of desperate men whose ferocity was heightened by religious 
 enthusiasm. In Scotland, some of the persecuted Covenanters, driven mad by 
 oppression, had lately murdered the primate, had taken arms against the 
 Government, 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.' 
 
 2 Supra, p. 611. 
 
662 The Stuart Period, [Ch. 
 
 impossible 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 un- 
 necessary 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 pre- 
 rogative, its peculiar care. Hence it seemed likely that, 
 through passion and circumstance, 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 freedom of inquiry, especially in 
 religion ; the latter their friend. The principle of the one, 
 in short, was amelioration, of the other, conservation.' ^ 
 Failure of The failure of the Exclusion Bill and the excesses of 
 sion Bill and ^^ Opposition were followed by a violent reaction in public 
 prostration opinion, which laid the Whig party prostrate, and enabled 
 Whigs. Charles II. to enjoy, during the last years of his reign, that 
 Despotic despotic power for which he had long been languidly 
 Charles II. Scheming. 'It is difficult to say,' Lord Russell has re- 
 ia"""ears^of "^^^^^<^' ' ^^r what reason Charles, a witty and heartless 
 his reign. man of pleasure, embarked in the vast undertaking 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 
 
 ^ Hallam, Const. Hist. iii. 198. 
 
XV.] Restoration to the Bill of Rights. 663 
 
 running on smoothly, however, 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 con- 
 siderable enemies. Thus, without activity or anxiety, by 
 merely taking advantage of events as they arose, he 
 procured for himself an authority 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.'^ 
 
 '^Tames II. ascended the throne in 1685, with a fixed J^^^s II. 
 •^ 1 685- 1 688. 
 
 design to make himself an absolute monarch, and to jj^^ despotic 
 
 subvert the Established Church. designs. 
 
 In many respects circumstances appeared peculiarly Circum- 
 favourable to his despotic aims. The Popular party were favourable 
 for the time completely crushed. The determination of ^° ^^^"^' 
 Charles II.'s last Parliament, in 168 1, to accept of nothing 
 but the Exclusion Bill had been punished by a sudden dis- 
 solution, 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 dis- 
 solution of one Parliament and the assembling 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 Oxford had but recently (July, 1683) 
 published a decree asserting the necessity of Passive Obedi- 
 
 ^ Earl Russell, Eng. Gov. and Const, p. Z^t' 
 
664 '^^^ Stuart Period, [Ch. 
 
 ence, and condemning 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 predecessors 
 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 corporations ; many others were 
 intimidated into making quasi-voluntary surrenders, re- 
 ceiving in return new Charters, framed on a far more 
 oligarchical model, and reserving to the King the right of 
 appointing the first members ; ^ 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. 
 TheCustoms James began his reign by an illegal Proclamation order- 
 levied, ing 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 
 
 AParlia- and summoned a Parliament.^ 'Those who look,' says 
 ment sum- 
 moned. ' 
 ^ Judge Jeffreys, on the northern circuit, in 1684, is said to have 'made 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. 451. 
 
 2 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 apologised for having dared to take so important a 
 step without the previous sanction of Lewis. "Assure your master," said 
 James, "of my gratitude and attachment. I know that without his protection 
 1 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 every- 
 
XV.] Restoration to the BUI of Rights. 665 
 
 Hallam, ' at the debates and votes of this assembly, their ifs servile 
 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 dependence 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 
 any one 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 suppression of 
 Monmouth's rebellion, for the support of a standing 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.' ^ This motive was supplied by the King him- 
 
 thing. 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."' — Macaulay, Hist. i. 458. [It seems only 
 fair to balance Macaulay's easy acceptance and ready circulation of this 
 story to James's discredit and that of his Ministers by citing the warning con- 
 tained in Edinb. Rev., April, 1889, p. 308, Art. Sidney, Earl of Godolphin, 
 where the Reviewer reminds us that this story 'rests on Barillon's authority.' 
 It involves the allegation that Godolphin said 'to Barillon, on behalf of his 
 colleagues, that 'he had given new life to their royal master.' The story, says 
 the Edinburgh Reviewer, is ' inconsistent with what we know of Godolphin 's 
 character,' and ' though it has been related and repeated by historians till its 
 reiteration has secured its general acceptance, it still stands on Barillon's 
 testimony ; and we are hardly justified in condemning a great English minister 
 on such evidence.' We may even, perhaps, be hardly justified in condemning 
 an English King on evidence which is exactly the same as that which affects his 
 Minister. — Ed.] 
 * Hallam, Const. Hist. iii. 50-52. 
 
666 The Stuart Period, [Ch. 
 
 self, in the alarm for the Reformed Church inspired by his 
 
 manifest determination to gradually fill all places of trust, 
 
 civil and military, with professors of the Roman Catholic 
 
 religion. 
 
 Its opposi- The opposition shown by the Parliament to the King's 
 
 ICing^s de^ avowcd intention of keeping Romish officers in his service, 
 
 sign to over- contrary to the provisions of the Test Act, was punished 
 
 Test Act by a hasty prorogation ; and although Parliament was 
 
 punished by continued in existence by further proroe^ations for about 
 
 prorogation '' . 
 
 and ultimate eighteen months before being dissolved, it was never again 
 isso ution. assembled during James's reign. 
 
 Increase of Taking advantage of Monmouth's late insurrection, the 
 
 army.^^'^ ^"^ King increased the number of regular troops in England 
 
 from 6000 to about 30,000 ; ^ and as these were largely 
 
 Standing ^ Standing Army. — The military force in England had long consisted 
 
 Army. of two kinds of troops, which may be classified as Consiitutional and Non- 
 
 Two kinds of Constitutional. 
 
 troops, con- (i) The Constitutional forces, consisting of {a) the feudal militia, bound by 
 stitutional the tenure of their lands to serve the King both at home and abroad (sum- 
 and non-con- moned for the last time to render personal service in the expedition of Charles I. 
 stitutional. against the Scots in 1640, and extinguished by the Act 12 Car. II. c. 24, 
 (i.) Cofistitii- abolishing the military tenures), and {/') the allodial or national militia, bound 
 tional: exclusively to service at home, and already sufficiently described {supra, pp. 
 
 (a.)/^^«^a/63, 97, 195-8). 
 
 militia. (2) The Non-constitutional forces were also of two kinds: ((z) those of a more 
 
 (b. ) Alio- or less permanent character, such as the small body guard of the sovereign 
 dial {supra, p. 381, «. i) and 'Oa^ garrisons, insignificant in number, maintained in a 
 
 militia^ few fortified places — the Tower of London, Portsmouth, Dover, Tilbury, and, 
 (ii. ) Non- before the union of the crowns, Berwick and some other places on the Scottish 
 Constitu- border : {b) those raised for special emergencies, comprising the stipendiary 
 tional: troops, which even in feudal times were regularly employed by English kings 
 
 (a. ) Royal for the purposes of foreign warfare, and the levies raised by compulsory con- 
 body- scription. Edward I. and Edward II. on several occasions had recourse to 
 guard. compulsory conscription. But this was clearly illegal ; and accordingly the 
 Garrisons, first Parliament of Edward III. passed a statute (i Edw. III. c. 5), 'That no 
 (b.) Sti- man from henceforth should be charged to arm himself otherwise than he was 
 pendiary wont in the time of the king's progenitors ; and that no man be compelled to 
 troops. go out of his shire but when necessity requireth and sudden coming of strange 
 Conscripts, enemies into the realm ; and then it shall be done as hath been used in times 
 Statutes ^^"^^ ^'^^ ^^^ defence of the realm. ' This statute Edward endeavoured to evade 
 arainstco ^ calling, not on individuals, but on the counties and chief towns to furnish 
 Julsorv ' ^^"^ ^^ troops. The Parliament met this new demand by a statute (25 
 levies Edw. III. c. 8) providing 'that no man shall be constrained to find men-at- 
 arms, hobblers, 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 
 Troops confirmed in the fourth year of Henry IV. (c. 13). For some time compulsory 
 raised by levies for foreign warfare were discontinued, and a system of contracting with 
 contract. ^^^^'^ °^ ''^"^ ^"*^ 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 
 
XV.] Restoration to the Bill of Rights, 667 
 
 officered by Roman Catholics, he trusted that he had 
 rendered himself independent of all forcible opposition. 
 
 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 Revival of 
 miUtary service out of the kingdom was to some extent revived. Its exercise compulsion 
 by Charles I. called forth, as we have seen, the declaratory statute against under the. 
 impressment of the i6th year of his reign {supra, p. 609). The great object Judors. 
 of Charles and of Strafford was to obtain a standing army ; but the Popular ^^^ ^r 
 party in Parliament, aware that the free states of the Continent had been ^^ ^^^ j 
 turned into despotisms through this very means, offered a determined oppo- Qp-ainst it 
 sition. 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 Govern- Origin of 
 ment,' in 1653, which invested Cromwell with the title of ' His Highness the Standing 
 Lord Protector,' provision was made for the support of a regular army of Army 
 30,000 men ; and the military subjection in which Cromwell held the country duritig the 
 excited amongst all parties a deep-rooted antipathy to a standing army. At Civil War. 
 the Restoration the people clamoured for the disbandment of the army of the Disbanded 
 Commonwealth, to which Charles II. somewhat reluctantly assented. General ^^ fj^^ 
 Monk's Foot regiment (the Coldstream) and one other of Horse were, however. Restoration. 
 retained in the King's service ; 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. 
 
 Towards the end of Charles II. 's reign, in i68[4], the garrison of Tangier (con- Growth of 
 sisting of one regiment of Horse and two of Foot) was recalled to England, and Standing 
 raised the numbers of the regular force to about 7000 foot and 1700 cavalry and Army under 
 dragoons. James II. endeavoured to make himself absolute by means of a great Charles 11. 
 standing army. Taking advantage of Monmouth's insurrection, he made large and 
 additions to the military force left by his brother, and brought up their numbers y^w^j //. 
 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. Bat under Parlia- 
 both Charles II. and James II. the Parliament took every opportunity of mentary 
 opposing the permanent retention of the troops which were necessarily raised opposition 
 from time to time for special purposes. When, in 1667, 12,000 fresh troops to it. 
 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, after 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. 545, n. ) 
 
 The illegality of raising or keeping a standing army within the kingdom Declared 
 in time of peace, except with consent of Parliament, is expressly declared iiie<ral by 
 by the Bill of Rights. This declaration has been regularly repeated in the ^iJi gf 
 Mutiny Act (passed for the first time in 1688, for one year only, and annually Ri<rhts, 
 renewed ever since), together with the further declaration * that no man can * * . 
 be forejudged of life and limb, or subjected in time of peace to any kind of ^J^^ Mutiny 
 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 authorising the Sovereign to make 
 articles of war for the government of the troops by martial law. 
 
668 
 
 The Stuart Period. 
 
 [Ch. 
 
 The King Throwing off all disguise, he soon made it apparent that, 
 all disguise, with a bench of Judges to pronounce 'his commands, and 
 
 Continued 
 prejiidice 
 against a 
 Standing 
 Army after, 
 the Revohi- 
 tion. 
 
 The Nation 
 reconciled to 
 a Standing 
 Army after 
 the Penin- 
 sular War. 
 
 Earl 
 KtisselVs 
 remarks on 
 a standing 
 army. 
 
 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 12,000 for 
 Ireland. The great victories of Marlborough reconciled the nation somewhat 
 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 of 
 the exiled Stuarts 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, only slightly exceeded 17,000 men. In 1731, Parliament 
 manifested its jealousy of the military power by passing an Act (8 Geo. II. 
 c. 30) 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 resolved, in 1741, consequent upon the military having been called 
 in to quell some riotous proceedings at a Westminster election, ' that the 
 presence of a regular body of armed soldiers at an election of members to 
 serve in Parliament is a high infringement of the liberties of the subject, 
 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 estabhshment 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 themselves and shake off, before it is too late, the burthen of a military 
 government.' 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. — Cf. Earl Russell, 
 Eng. Const. 269-281 ; Hallam, Middle Ages, i. 263, iii. 45, 46, Const. Hist, 
 iii. 104-106, 256-260; Macaulay, Hist. Eng. (Works, ed. 1866), i. 94-97, 
 227-233, 525, 526, iv. 331-349. [It may be noted in connection with the 
 state of public feeling on this subject after the Peace of Ryswick, that Defoe's 
 ' first conspicuous literary service to King William, after he obtained govern- 
 ment employment,' was a pamphlet t.n'C\'Ci&^ Aj-giiment showing that a Standing 
 Army^ with consent of Parliament^ is not inconsistent with a Free Government, 
 
XV.] Restoration to the Bill of Rights. 669 
 
 an army to enforce them, Constitutional limitations would 
 no longer be suffered to stand in the way of his despotic 
 designs.^ 
 
 His first step was to procure a Judicial decision in favour Th6 Dis- 
 of his assumed prerogative of dispensing with the observ- p^^ef, 
 ance of the laws.^ Having carefully eliminated from the 
 Bench such of the Judges as would not promise to decide 
 according to his wishes,^ and having appointed others in 
 their stead, a collusive action was brought ao^ainst Sir ^^/■^-j' case, 
 Edward Hales, a recent convert to Romanism, for the 
 penalty of ;^ 500 incurred by accepting a military command 
 without taking the oath and making the subscription re- 
 quired 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 preroga- 
 tive ; grounding their decision upon slavish maxims of 
 absolute power which were capable of extension far beyond 
 the immediate case.^ 
 
 The Dispensing Power, which the Courts of law had thus 
 solemnly recognised, was now vigorously and systemati- 
 cally exercised. Four Roman Catholic peers, Powis, Bela- 
 syse, Arundell, and [Jermyn of] Dover,^ with Father Petre, 
 
 ' Though coming late in the day, Defoe's pamphlet was widely read, and must 
 have helped to consolidate the victory.' Minto's Defoe, pp. 14, 15. — Ed.] 
 
 ^ Hallam, Const. Hist. iii. p. 59. 
 
 " On the Dispensing and Suspending powers, see supra, p. 329. 
 
 '^ ' 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 dismissed, together 
 with Montague, Chief Baron of the Exchequer, and two puisne judges, Neville 
 and Charlton. — Macaulay, Hist. [ii. 81]. 
 
 ■* Godden v. Hales, 2 Shower, Rep. 475 ; li State Trials, 1165 ; cf. Hallam, 
 Const. Hist. iii. 61 [, and Denman's Broom's Const. Law, pp. 501-3, in Note to 
 Case of the Seven Bishops. — Ed.] 
 
 ^ [Some brief account of these Peers may not be without interest here. 
 Lord Powis was William Herbert, 3rd Lord, grandson of Sir William Herbert, 
 K.B., cr. Lord Powis, 1629, Earl of Powis, 1674, and Marquis of Powis, 1687. 
 He accompanied James to France, was there created Duke of Powis, and died 
 at St. Germains, 1696. The outlawry of the 1st Marquis having been reversed, 
 
670 The Stuart Period. [Ch. 
 
 a Jesuit, were sworn of the Privy Council. Several clergy- 
 men who had seceded to Romanism weVe authorised to hold 
 benefices without complying with the requirements of the 
 Deprivation Act of Uniformity ; the Vice-Chancellor of [the University 
 Chancdlor °^] Cambridge was deprived of his office for declining to 
 of Cam- confer, at the King's request, an academical degree upon 
 " ^f*. r Alban Francis, a Benedictine monk ; and the Fellows of 
 
 Expulsion of , 
 
 the Fellows Magdalen College, Oxford, were expelled for refusing to 
 of Magdalen ^1^^^ ^g tj^^jj. President a Roman Catholic nominee of the 
 
 College, 
 
 Oxford. Crown. These last two acts of tyranny were accomplished 
 
 New High under the summary and arbitrary jurisdiction of a new 
 
 Court. * Court of Commissioners for Ecclesiastical Causes,' which 
 
 the King had recently established in direct defiance of the 
 
 Act of the Long Parliament (16 Car. I. c. 11) abolishing 
 
 1722, the English titles descended to the 3rd Marquis, who died circa 1748. 
 By a new creation, an Earldom of Powis is now vested in the heirs of the niece 
 of the last Marquis, who married the nearest heir male. Lord Belasyse was John, 
 second son of Thomas, ist Viscount Fauconberg, created Lord Belasyse of Wor- 
 laby, 1644, who held high commands on the King's side in the Civil War, and 
 after the Restoration. He was First Lord of the Treasury, /. Jac. H., on the dis- 
 missal of Rochester, and died 1689. The title became extinct on the death, s.p.y 
 of his grandson the 2nd Lord, 1692. Lord Arundell of Wardour was the repre- 
 sentative of the younger branch of an ancient Cornish stock, the Arundells of 
 Lanherne, seated at Wardour Castle, W^iltshire, from Tudor times. Henry, 
 3rd Lord, grandson of Thomas, ist Lord Arundell of Wardour, created 1605, 
 was imprisoned, 1678, on the information of Titus Gates. On his release, 
 1685, he was sworn of the Privy Council, as stated in the text, and, in 1686, 
 was made Lord Keeper of the Privy Seal, and K.B. On the abdication of 
 James, he retired to Wiltshire, and died 1694. Sir Thomas, the first Lord 
 Arundell of Wardour, was created a Count of the Holy Roman Empire, 1595, 
 by the Emperor Rodolph IL Lord Dover, strictly speaking Lord Jermyn of 
 Dover, created 1685, was Henry, next younger brother of Thomas, 2nd Lord 
 Jermyn of St. Edmundsbury, and nephew of Henry, ist Lord Jermyn of St. 
 Edmundsbury, created 1643, who was created Earl of St. Al ban's at Breda, 
 immediately upon the Restoration, 27th April, 1660, and was soon after made 
 K.G., and Lord Chamberlain of the Household. Lord Jermyn of Dover, 
 who was, with Sir Stephen Fox, John, Lord Belasyse, Lord Godolphin, and Sir 
 John Ernie, one of the Commissioners of the Treasury, appointed on the 
 dismissal of the Earl of Rochester, in January, 1686-7, died j./., 1708. Cf. 
 Burke's Peerage^ and Dormant and Extinct Peerages. Collins, Peerage, ed. 
 by Brydges, viii. 262, s.v. Gage, erroneously speaks of Henry Jermyn as Earl 
 of Dover (thereby confusing his title with that of the Careys, Lords Hunsdon, 
 whose Earldom of Dover, created 1627, became extinct on the death, j./., of 
 John, 2nd Earl, 5th Lord Hunsdon, in 1677), and makes his nieces and 
 co-heirs his sisters, and, iv. 534, s.v. Ilchester, calls him Henry, Lord Dover, 
 a misleadingly brief description which may have been the source of the form 
 under which it appeared in the original text of this work, but which is here 
 corrected to avoid confusion with the several other Peerages which have at 
 various times existed under the title of Dover. — Ed.] 
 
XV.] Restoration to the Bill of Rights, 671 
 
 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 commission of any similar Court.^ 
 
 In April, 1687, James published his famous Declaration Declaration 
 for Liberty of Conscience, declaring it to be his * royal y^'^^ofCon- ^ 
 and pleasure that from henceforth the execution of all and science, 
 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 established, 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 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 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 pronounced incapable 
 of holding any preferment in future. If he were contumacious, 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, incon- 
 sistent with these regulations. Lastly, lest 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 superscription with the seal of the old High 
 Commission.' — Macaulay, Hist. [ii. 92], 
 
 2 [Some Corporations appear to have fallen into the trap set by this Declaration, 
 and to have sent up congratulatory addresses to the King on its publication. 
 Such was the case with Woodstock, as is related by the Rev. Edward Marshall, 
 M.A., in his Early History of Woodstock Manor ^ p. 245. But the good 
 people of Woodstock only committed themselves, as His Majesty's ' most 
 obedient and loyal subjects of the Church of England,' to a thankful acknow- 
 ledgment of a 'gracious Declaration' wherein the King was ''pleased to 
 
672 The Stuart Period. [Ch. 
 
 Its motive. Xhe King's manifest object in issuing this Declaration 
 was to obtain the support of the Protestant Nonconformists 
 in his attempt to achieve despotic power ; for the Roman 
 Catholics had practically enjoyed religious toleration and 
 freedom from Civil disabilities from the date of James's 
 It is gene- accession to the throne. The Nonconformists, however, 
 by t^hrN^on- ^'°^ ^^ most part mistrusted the insidious advances of the 
 conformists. 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 the Declaration went much further 
 than the prerogative recognised in Hales' case, of dispensing 
 with prohibitory statutes in the case of particular indi- 
 viduals, sweeping away, as it did in effect, a whole series 
 of laws made for the security of the Established Church. 
 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 [, which is a thing worth considering].' ^ 
 Second JOe- After a year's interval, during which the King had made 
 claratwft of j-^pj J ^^d oDcn advauccs towards the establishment of 
 
 Indulgence. ^ ^ 
 
 Romanism, the Declaration of Indulgence was published a 
 Ordered to second time, followed by an Order in Council directing it to 
 all churches. ^^ "ct^di in all churches, and for that purpose to be sent 
 and distributed throughout their several dioceses by the 
 Bishops. A humble petition of the Primate and six other 
 prelates ^ against this order, presented to the King in his 
 
 promise to protect and maintain the said Church and all the members thereof, 
 ' in the free exercise of their religion as by law established, and to maintain all 
 their rights, liberties and properties.' " This was not exactly what was in the 
 King's mind, and there may have been a slight element of irony in these 
 addresses. — Ed.] 
 
 * Judgment of Mr. Justice Powell in the * Case of the Seven Bishops,' 12 
 State Trials, 183 [, and Denman's Broom's Const. Lau\ p. 488. — Ed.] 
 
 2 Their names were Sancroft, Archbishop of Canterbury ; Lloyd, Bishop of 
 St. Asaph; Ken, of Bath and Wells; Trelawny, of Bristol; Lake, of 
 Chichester ; Turner, of Ely ; and White, of Peterborough. 
 
XV.] Restoration to the Bill of Rights. 673 
 
 own closet, was pronounced a seditious libel ; and the 
 Seven Bishops were sent to the Tower, and soon afterwards imprison- 
 brought to trial before the Court of King's Bench. Amidst prosecution 
 the enthusiastic rejoicings of the whole nation, the Jury of the Seven 
 returned a verdict of acquittal (30 June, 1688).^ ' The pro- 
 secution of the bishops/ remarks Macaulay, ' is an event 
 which stands by itself in our history. It was the first and 
 last occasion on which two feelings of tremendous potency, 
 two feelings which have generally been opposed to each 
 ..other, and either of which, when strongly excited, has 
 sufficed to convulse the state — were united in perfect har- 
 mony. Those feelings were, love of the Church and love 
 of freedom. During many generations every violent out- 
 break of High Church feeling, with one exception, has 
 been unfavourable to civil liberty ; every violent outbreak 
 of zeal for liberty, with one exception, has been unfavour- 
 able 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 thou- 
 sand clergymen, with the Primate and his most respectable 
 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 coali- 
 tion which included the most zealous Cavaliers, the most 
 zealous republicans, and all the intermediate sections of 
 the community. The spirit which had supported Hamp- 
 den in the preceding generation, the spirit which, in the 
 succeeding generation, supported Sacheverell,^ combined 
 to support the Archbishop, who was Hampden and Sache- 
 verell 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, 
 
 1 [Medals were struck bearing the portrait of Sancroft, and a representation 
 of the Church on a rock, with the legend \Patri\ota triujnphans, a specimen of 
 which was lately seen by the present Editor in a private collection. The legend 
 was imperfect, owing to the worn state of the medal, and the letters wanting 
 are here supplied in brackets. — Ed.] 
 
 2 Supra, p. 548. 
 
 C.H. X X 
 
674 ^'^^ Stuart Period. [Ch. 
 
 Independents, Baptists, forgot their long feud, and remem- 
 bered only their common Protestantism and their common 
 danger.' ^ 
 Invitation to On the day on which the verdict of Not Guilty was re- 
 ^ofOranle, turned 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 de- 
 spatched to William, Prince of Orange, and Stadtholder 
 James en- of the United Provinces. James now endeavoured to 
 ?o retrace retrace his steps, but it was too late to regain the confi- 
 his steps. dence of his people. Louis XIV. bestirred himself to assist 
 Efforts of j^is Royal brother. He gave notice to the States-General 
 
 Louis XIV. -^ ° 
 
 in his behalf, that he was strictly bound in friendship and alliance with 
 his Britannic Majesty, and that any attack on England 
 would be considered as a declaration of war against France. 
 But James, who appeared bent on his own ruin, formally 
 disowned the existence of any such alliance between France 
 and England; and Louis, in disgust, withdrew his troops 
 
 * Macaulay, Hist, [ii, 391-3]. 
 
 2 [Some account of the less widely known signataries of this historic docu- 
 ment may not be out of place. Lord Lumley, who had held a command at 
 Sedgmoor, was Richard, 2nd Viscount Lumley of Waterford in the Peerage of 
 Ireland, created 1628, who was created Lord Lumley, 1681, Viscount Lumley, 
 1689, and Earl of Scarborough, 1690, all in the Peerage of England. He 
 died 1 72 1. Cf Burke, Peerage, s. v. Scarborough. The Lumleys are an old 
 and powerful North country stock. Admiral Russell was 2nd son of Hon. 
 Edward Russell, and grandson of Francis, 2nd Lord Russell of Thornhaugh, 
 created 1603, who succeeded his cousin, the 3rd Earl of Bedford, as 4th Earl, 
 1627. He was Bedchamber-man to James II. when Duke of York, but 
 retired from Court, says Burnet, on Lord Russell's death. He was one of the 
 most eminent naval commanders of his day, and won the celebrated victory off 
 Cape La Hogue, 1692. As a Minister he was one of the celebrated 'Junto.' 
 In 1697 he vvas created Earl of Orford, but died s.p., ^1^^. Cf. Burke, 
 Peerage, s.v. Bedford, and Dormant and Extinct Peerages, s.v. Russell, Earl of 
 Orford. Henry Sydney, a younger brother of Algernon Sydney, was 4th son 
 of Robert, 2nd Earl of Leicester, K.B., and grandson of Sir Robert Sydney, 
 created Earl of Leicester, 1618, and having zealously supported the Revolution, 
 was created, 1689, Viscount and Baron Sydney, and, 1694, Earl of Romney, 
 but died, j./., 1704. Cf Burke, Dormant and Extinct Peerages, s.ri'. Of the 
 signataries generally it is noted by Green, Hist. Eng. People, iv. 26, that two, the 
 Earl of Shrewsbury and Lord Lumley, were recent converts from the Church 
 of Rome. Green also notes, loc, cit., that Danby answered for the 'Tories,' 
 Compton *for the High Churchmen, goaded at last into rebellion by the 
 Declaration of Indulgence,' Devonshire, * the Lord Cavendish of the Exclu- 
 sion struggle,' for the Nonconformists as well as for the ' general body of the 
 Whigs.'— Ed.] 
 
XV.] Restoration to the Bill of Rights, 675 
 
 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 Torbay, Landing of 
 in Devonshire. It is unnecessary to enter at length into of^orange. 
 the details of a Revolution which the eloquent pages of 
 Macaulay have rendered so generally familiar. 
 
 After the second flight of James (23rd December),^ an Flight of 
 
 assembly composed of the Lords spiritual and temporal -^ ^"^^^* 
 
 then in London (about 70 in number) and of all persons William is 
 
 who had been members of the House of Commons in the assume the * 
 
 reiern of Charles IL, together with the Lord Mayor, Alder- provisional 
 
 o J 1 government. 
 
 men, and fifty of the Common Council of London, requested 
 
 the Prince of Orange to assume the provisional government 
 
 of the country, and to summon all the constituent bodies 
 
 of the Kingdom to send up representatives to Westminster, 
 
 to a Convention Parliament for the settlement of the affairs 
 
 of the nation. 
 
 The Convention Parliament met on the 22nd January, '^^'-^ Conven- 
 
 •^ ^ * Hon Parlia- 
 
 1688-9. The nation was at this time divided into six ment. 
 
 parties, of which two — the blind enthusiasts for Tames IL Parties in 
 *- ' ■' the nation* 
 
 who wished to recall him without stipulations, and the 
 
 Ultra-Republicans, who wished to set up a Commonwealth 
 — were too small and insignificant to exercise any appreci- 
 able influence. The bulk of the nation and of the Conven- 
 tion was divided among the remaining four parties, three 
 being Tories of varying shades, and the fourth and largest 
 the Whig party. Of the Tories, (i) Sherlock's party, which 
 was especially strong among the clergy, wished that a 
 negotiation should be opened with James for his restora- 
 
 1 [Mme. de Sevigne has some interesting passages on James's flight and 
 William's accession. As to the king's flight, she says " il parait que le prince 
 (d'Orange) I'a bien voulue." As to William, on his first arrival, "il est dans- 
 Londres a la place du roi, sans en prendre le nom, ne voulant que retablir una 
 religion qu'il croit bonne, et maintenir les lois du pays, sans qu'il en coute une 
 goutte de sang. " To this description of William, she adds, characteristically, 
 "Voilk I'envers tout juste de ce que nous pensons de lui ; ce sont des points 
 de vue bien differents. " Lettres Choisies, ed. by C. Fallet. Rouen, 1856, 
 p. 193.— Ed.] 
 
 X X 2 
 
676 The Stuart Period. [Ch» 
 
 tion on such conditions as might fully secure the Civil 
 and Ecclesiastical Constitution of the rdalm. (2) Bancroft'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 
 that, 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 enquiry ; ^ and as those who called them- 
 selves his parents had removed him to France, together 
 with all those French and Italian women of the bed- 
 chamber who, if there had been foul play, must have been 
 privy to it, enquiry 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, having 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 conditions as might ensure the country against 
 misgovernment. 
 
 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. 
 
 Resolutions On the 28th January the Commons passed their cele- 
 of the Com- 
 mons : — - — 
 
 ^ The legitimacy of James II. "s son is now fully admitted by historians, but 
 it was fiercely disputed at ihe time. [It is impossible at this date to see any 
 other origin for this dispute than the violence of party feeling, and the practical 
 doubts which might well exist regarding the possibility of a Regency in the 
 name of the infant Prince of Wales. — Ed.] 
 
XV.] Restoration to the Bill of Rights. 677 
 
 brated Resolutions: (i) 'That King James II. having (i-) That 
 
 , , , 1 • . r 1 1 • 1 1. Tames II. 
 
 endeavoured to subvert the constitution of the kingdom hj had abdi- 
 breakine: the orie^inal contract between King and People, cated the 
 
 ^ ^ o i government, 
 
 and having, by the advice of Jesuits and other wicked and that the 
 persons, violated the fundamental laws, and withdrawn [{jg^gL^^^ 
 himself out of the kingdom, has abdicated the government, vacant, 
 and that the throne is thereby vacant.' (2) ' That it hath (H.) That 
 been found by experience inconsistent with the safety and by\ Popish 
 welfare of this Protestant kins^dom to be e^overned by a prince was 
 
 inconsistent 
 
 Popish prince.' with the 
 
 To the second resolution, though obviously irreconcileable l^n^Jon/ 
 with the doctrine of indefeasible hereditary right, the Lords opposition, 
 at once gave their unanimous assent ; but the first, which was 
 debated clause by clause, encountered 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 negatived 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 
 tlie People. They agreed, without a dissentient voice, to 
 the Commons' 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 WilHam an- 
 the Nation to settle itself. But a crisis had now arrived "ntentions. 
 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 under- 
 stand 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 added, that the 
 Lady Anne and her descendants should be preferred in the 
 
678 The Stuart Period. [Ch. 
 
 succession to any children whom he might have by any 
 other wife than the Lady Mary.^ 
 The Lords After a pre-conference between the two Houses, in which 
 their opposi- ^^^ questions between them were fully argued on both sides, 
 tion ; and the Lords at length gave way. They resolved not to insist 
 William and on their amendment to the original vote of the Commons ; 
 Mary shall ^^^ proposed and carried, without a division, that the 
 King and PHnce and Princess of Orange should be declared King 
 ^"^""- and Queen of England. 
 
 The Com- It was Still to be decided upon what conditions William 
 TondS!'^ 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 sovereigns, reported (i) 
 that the great principles of the Constitution 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 preroga- 
 tive 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 Parliamen- 
 tary impeachment ; that toleration should be granted to 
 Protestant dissenters ; that the crime of treason should be 
 more precisely defined, 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 remarkable 
 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 of the nation. The 
 list of reforms was too long, if it referred only to what 
 ought to be accomplished before the throne was filled ; 
 
 * Macaulay, Hist. ii. [650]. 
 
XV. 1 Restoration to the Bill of Rights, 679 
 
 too short, if intended to include all reforms which the legis- 
 lature would do well to make in proper season. It was Postpone- 
 finally decided to postpone all reforms until after the settle- reforms, 
 ment of the 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 EnHish 
 
 o 
 
 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 accordingly Declaration 
 
 drawn up. It contains : (i) a recital of all the 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 Tender and 
 
 February, 1688-9, a tender of the Crown, on the conditions of^th^*"""^^ 
 
 set forth in the Declaration, was made by the Marquis Grown. 
 
 of Halifax in the name of all the Estates of the Realm.^ 
 
 1 The Scottish Estates, which met a month later, passed Resolutions framed, 77^^ Scottish 
 as far as possible, in conformity with those recently passed at Westminster. Convention. 
 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.' They resolved ' That James VII. , 
 being a professed Papist, did assume the royal power and acted. as king, without 
 ever taking the oath required by 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 arbitrary 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 h2L\.h 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 
 
68o The Shear t Period. [Cn. 
 
 *We thankfully accept,' replied William, speaking for 
 himself and his wife, ' what you have offered us/ 
 Salutary Thus was accomplished the ' Glorious Revolution ' of 
 
 conse- 1688, of all revolutions the least violent and the most 
 
 quences ' 
 
 of the beneficent. 'It finally decided,' says Macaulay, 'the great 
 
 \evo u ion. q^gg^j^j^ 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 develop itself freely, and 
 to become dominant. The strife between 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 Whitehall Gate, did 
 in truth announce that this great struggle was over ; that 
 there was entire union between the throne and the Parlia- 
 
 Convention. (Macaulay, Hist. iii. [286]; Hallam, Const. Hist. iii. 328.) — The 
 greater boldness of the Scots was in accordance with their well-known character 
 for turbulence and independence. ' There have been more rebellions in Scot- 
 land,' Buckle remarks (Hist, of Civilisation, ii. 159) 'than in any other country, 
 and the rebellions have been very sanguinary as well as very numerous. The 
 Scotch have made war upon most of their kings, and put to death many.' 
 The loyalty of the Highlander was directed towards the chief of his clan, and 
 the Lowlander was no less opposed to the doctrine of passive obedience to the 
 King. Mr. Lecky (Hist, of England in the Eighteenth Century, ii. 42, citing 
 Burnet's Speech on the Sacheverell Case, 17 10) mentions the significant fact 
 that during the minority of James [VI.] of Scotland, * the well-known saying of 
 Trajan when he delivered the sword to the governor of a province, ^^ Pro vie : 
 si nierear in me" was actually inscribed on the coin of the realm, and although 
 the King afterwards changed the motto, the coin was not called in, and continued 
 to circulate till the Union.' [This legend was inscribed on the Sword dollar, 
 or silver 30J. piece of James VI., as struck from 1567 to 1571. Lindsay, Vir^t 
 of the Coinage of Scotland. Cork, 1845. P. 107, No. 525, j<?^. Lindsay reads 
 * mereor,' and describes the Reverse of the first issue bearing the legend as ' a 
 sword erect crowned, between a hand at one side pointing to the value at the 
 other, and the date 1567.' Mr. Lecky's use in his text, at the place here 
 cited, of the erroneous designation 'James I.' when describing a Scottish 
 coin of James VI., minted, moreover, long before his accession to the English 
 Crown, misled the author in his second edition of this work. — Ed.] 
 
XV.] Restoration to the Bill of Rights, ^^ i 
 
 ment ; and that England, long dependent and degraded, 
 was again a power of the first rank ; that the ancient laws 
 b}^ 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 be conducted in conformity with the 
 sense of the representatives of the nation ; and that no 
 reform, which the two Houses should, after mature delibera- 
 tion, propose, would be obstinately withstood by the 
 sovereign. The Declaration of Right, though it made 
 nothing law which had not been law before, contained the 
 germ ... of every good law which had 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.' ^ 
 
 In the second session of the Convention Parliament, The Bill of 
 which re-assembled on the 25th of October, 1689, the ^^'S^'^^- 
 Declaration of Right was embodied and confirmed, with 
 some slight but important amendments, in a regular Act 
 of the Legislature. 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. 
 I Will, and Mary, Sess. 2, c. 2 (1689). 
 
 An Act Declareing the Rights and Liberties of the Subject^ 
 and Setleing the J^uccession of the Crowne. 
 
 Whereas the Lords Spirituall and Temporall and Commons, Recitals. 
 assembled at Westminster, lawfully, fully, and freely repre- 
 senting all the Estates of the people of this Realme, did. Presentation 
 upon the thirteenth day of February, in the yeare of our ofDedara- 
 Lord One thousand six hundred eighty eight, present unto ^ff f^ ''^ 
 
 1 Macaulay, Hist. ii. [668]. 
 
682 The Stuart Period, [Ch. 
 
 their Majesties, then called and known by the names and 
 stile of William and Mary, Prince and, Princesse of Orange, 
 Its contents: being present in their proper persons, a certaine Declaration 
 
 in writeing, made by the said Lords and Commons, in the 
 words following, viz. : — 
 
 Illegal and Whereas the late King James II. by the advice of diverse evill 
 arbitrary councellors, judges, and ministers imployed by him, did endeavour 
 acts com- ^o subvert and extirpate the Protestant religion, and the lawes and 
 lauKing liberties of this kingdome :- 
 James II. ^ -gy assumeing and exerciseing a power of dispensing with 
 
 and suspending of lawes, and the execution of lawes, without 
 
 consent of Parlyament. 
 
 2. By committing and prosecuting diverse worthy prelates, for 
 humbly petitioning to be excused from concurring to the same 
 assumed power. 
 
 3. By issueing and causeing to be executed a commission under 
 the Great Seale for erecting a court, called the Court of Com- 
 missioners for Ecclesiasticall Causes. 
 
 4. By levying money for and to the use of the Crowne, by pre- 
 tence of prerogative, for other time, and in other manner than the 
 same was granted by Parlyament. 
 
 5. By raising and keeping a standing army within this kingdome 
 in time of peace, without consent of Parlyament, and quartering 
 soldiers contrary to law. 
 
 6. By causing severall good subjects, being Protestants, to be 
 disarmed, at the same time when Papists were both armed and 
 imployed contrary to law. 
 
 7. By violating the freedome of election of members to serve 
 in Parlyament. 
 
 8. By prosecutions in the Court of King's Bench, for matters 
 and causes cognizable onely in Parlyament ; and by diverse other 
 arbitrary and illegal courses. 
 
 9. And whereas of late yeares, partiall, corrupt, and unqualifyed 
 persons have been returned and served on juryes in tryalls, and 
 particularly diverse jurors in tryalls for high treason, which were 
 not freeholders. 
 
 10. And excessive baile hath beene required of persons com- 
 mitted in criminall cases, to elude the benefitt of the lawes made 
 for the liberty of the subjects. 
 
 11. And excessive fines have been imposed; and illegall and 
 cruell punishments inflicted. 
 
 12. And severall grants and promises made of fines and for- 
 feitures, before any conviction or judgment against the persons 
 upon whome the same were to be levyed. 
 
 All which are utterly and directly contrary to the knowne lawes 
 and statutes, and freedome of this realme. 
 
 And whereas the said late King James the Second haveing 
 
XV.] Restoration to the Bill of Rights, 683 
 
 abdicated the government, and the throne being thereby vacant, Abdication 
 his Highnesse the Prince of Orange (whome it hath V'^^^^^^Tuentla- 
 Almighty God to make the glorious instrument of deHvering this cancy of the 
 kingdome from Popery and arbitrary power) did (by the advice throne. 
 of the Lords Spirituall and Temporall, and diverse principall Summons oj 
 persons of the Commons) cause letters to be written to the Lords the Conven- 
 Spirituall and Temporall, being Protestants, and other letters to t^on Parha- 
 the severall countyes, cityes, universities, burroughs, and Cinque ^^^^^ ' 
 Ports, for the choosing of such persons to represent them, as were 
 of right to be sent to Parlyament, to meete and sit at Westminster 
 upon the two and twentyeth day of January, in this yeare One 
 thousand six hundred eighty and eight, in order to such an 
 establishment, as that their religion, lawes and liberties might 
 not againe be in danger of being subverted j upon which letters 
 elections having beene accordingly made. 
 
 And thereupon the said Lords Spirituall and Temporall, and Declaration 
 Commons, pursuant to their respective letters and elections, ^^^^^ ^}^ ^'^^^ 
 being now assembled in a full and free representation of ^^^^^J^t^Jj^ilraLd 
 nation, taking into their most serious consideration the best are illegal. 
 meanes for attaining the ends aforesaid, doe in the first place (as 
 their auncesters in like case have usually done) for the vindicating 
 and asserting their auntient right and liberties, declare : — 
 
 1. That the pretended power of suspending of laws, or the 
 execution of laws, by regall authority, without consent of Parlya- 
 ment is illegall. 
 
 2. That the pretended power of dispensing with laws, or the 
 execution of laws, by regall authoritie, as it hath beene assumed 
 and exercised of late, is illegall. ^ 
 
 3. That the commission for erecting the late Court of Commis- 
 sioners for Ecclesiasticall Causes, and all other commissions and 
 courts of like nature, are illegall and pernicious. 
 
 4. That levying money for or to the use of the Crowne by pre- 
 tence of prerogative, without grant of Parlyament, 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 
 illegall.2 
 
 * Supra^ p. 329. In drawing up the Declaration of Right the Lords were 
 unwilling absolutely to condemn the Dispensing power, and therefore inserted 
 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. 688] 
 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. 
 
 2 On the right of petitionmg see supra, p. 641. The Act 13 Car. II. c. 5, 
 against tumultuous petitioning was not affected by this clause of the Bill of 
 Rights. [On Petitions of Right, see /OJ/, Appendices. — Ed.] 
 
684 The Stuart Period, [Ch. 
 
 6. That the raising or keeping a standing army within the 
 kingdome in time of peace, unless it be with consent of Parlya- 
 ment, is against law.^ 
 
 7. That the subjects which are Protestants may have arms 
 for their defence suitable to their conditions, and as allowed by 
 law.2 
 
 8. That elections of members of Parlyament ought to be free. 
 
 9. That the freedome of speech, and debates or proceedings in 
 \A -- ^ Parlyament, ought not to be impeached or questioned in any court 
 
 or place out of Parlyament. 
 
 10. That excessive baile ought not to be required nor ex- 
 (" . , ' cessive fines imposed; nor cruell and unusuall punishment 
 
 inflicted. 
 
 11. That jurors ought to be duely impannelled and returned, 
 and jurors which passe upon men in trialls for high treason ought 
 to be freeholders. 
 
 12. That all grants and promises of fines and forfeitures of 
 particular persons before conviction, are illegall and void. 
 
 13. And that for redresse of all grievances, and for the amend- 
 ing, strengthening, and preserveing of the lawes, Parlyament ought 
 to be held frequently. 
 
 And they doe claime, demand, and insist upon all and singular 
 the premisses, as their undoubted rights and liberties ; and that 
 noe declarations, judgments, doeings or proceedings, to the pre- 
 judice of the people in any of the said premisses, ought in anywise 
 to be drawne hereafter into consequence or example. 
 
 To which demand of their rights they are particularly en- 
 couraged by the declaration of his Highnesse the Prince of Orange, 
 as being the onely means for obtaining a full redresse and remedy 
 therein. 
 
 Haveing therefore an intire confidence that his said Highnesse 
 the Prince of Orange will perfect the deliverance soe farr 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 : 
 
 ^ Supra^ p. 666, «. i. 
 
 - 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 oppresion.' 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. c. I) the training of persons without lawful authority to the use 
 of arms is prohibited ; and any Justice of the Peace is authorised to disperse 
 such assemblies of persons as he may find engaged in that occupation, and 
 to arrest any of the persons present. — Stephen, Commentaries (5th ed.), 
 i. 154, and, as to the authority under which the Volunteer Rifle Corps are 
 trained, ii. 610. 
 
XV.] Restoration to the Bill of Rights, 685 
 
 II. The said Lords Spirituall and Temporal!, and Qonxmovi^, Bestmval of 
 assembled at Westminster, doe resolve, that William and Mary, ^^'^^ ^iiiiafn 
 Prince and Princesse of Orange, be, and be declared, King and ^„^ Mary, 
 Queene of England, France and Ireland, and the dominions according to 
 thereunto belonging, to hold the Crowne and royall dignity of the limitatiom 
 said kingdomes and dominions to them the said Prince and Prin- ^nentiotied. 
 cesse dureing their lives, and the life of the survivour of them ; 
 
 and that the sole and full exercise of the regall power be onely in, 
 and executed by the said Prince of Orange, in the names of the 
 said Prince and Princesse, dureing their joynt lives ; and after 
 their deceases, the said Crowne and royall dignitie of the said 
 kingdomes and dominions, to be to the heires of the body of the 
 said Princesse ; and for default of such issue to the Princesse 
 Anne of Denmarke, and the heires of her body ; and for 
 default of such issue to the heires of the body of the said Prince 
 of Orange. And the Lords Spirituall and Temporall, and 
 Commons, do pray the said Prince and Princesse to accept the 
 same accordingly. 
 
 III. And that the oathes hereafter mentioned be taken \^y 2i}\ Neiv oaths 
 persons of whome the oathes of allegiance and supremacy might inUeuofthe 
 
 be required by law, instead of them ; and that the said oathes of ^^f, °^}^^^ ^-^ 
 
 11 • i I u .J allegiance 
 
 allegiance and supremacy be abrogated. and .mpre- 
 
 ^, K.'Q., doe sincerely promise and sweare, That I will be faith- macy. 
 full and beare true allegiance to their Majesty es King WiUiam Allegiance. 
 and Queene Mary : 
 
 Soe helpe me God. 
 
 I, A. B., doe sweare. That I doe from my heart abhorr, detest, Stipremacy. 
 and abjure as impious and hereticall, this 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 doe 
 declare. That noe forreigne prince, person, prelate, state, or 
 potentate hath, or ought to have, any jurisdiction, power, supe- 
 riority, pre-eminence, or authoritie, ecclesiasticall or spirituall, 
 within this realme : 
 
 Soe helpe me God. 
 
 IV. Upon which their said Majestyes did accept the Crowne Acceptance 
 and royall dignitie of the kingdoms of England, France, and of the Croivn 
 Ireland, and the dominions thereunto belonging, according to ^y ^^'^^^'^/« 
 the resolution and desire of the said Lords and Commons con- ^'^"^^'^O'- 
 tained in the said declaration. 
 
 V. And thereupon their Majestyes were pleased, that the said Agreement 
 Lords Spirituall and Temporall, and Commons, being the two between their 
 Houses of Parlyament, should continue to sitt, and with their Majesties 
 Majestyes royall concurrence make effectual provision for ^^^^l^lionthat. 
 setdement of the religion, lawes, and liberties of this kingdome, the latter, 
 soe that the same for the future might not be in danger againe ^«w^M^/7r^ 
 
686 The Stuart Period. [Ch. 
 
 Houses of of being subverted ; to which the said Lords Spirituall and 
 ^h^idd^"^*' Temporall, and Commons, did agree and proceede to act 
 'tiZetTsit. accordingly. 
 
 Formal rati- ^^' Now m pursuance of the premisses, the said Lords Spiri- 
 fication and tuall and Temporall, and Commons, in Parlyament assembled, for 
 confirmation the ratifying, confirming, and establishing the said declaration, 
 ofDeclara- and the articles, clauses, matters, and things therein contained, by 
 ^Rw/t ^^^ ^^"^^^ °^ ^ ^^^ made in due forme by authority of Parlyament, 
 
 ^ ' doe 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, auntient, and indubitable rights and 
 liberties of the people of this kingdome, and soe 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 Majestyes 
 and their successors according to the same in all times to come. 
 Recognition VI L And the said Lords Spirituall and Temporall, and 
 anddeclara- Commons, seriously considering how it hath pleased Almighty 
 ^Ma'fsti^s'^^ God, in his marvellous providence, and mercifull goodness to this 
 title al'^Kin^r''^^^^^'^^ to provide and preserve their said Majestyes' royall 
 and Queen *^ persons most happily to raigne over us upon the throne of their 
 of England, auncestors, for which they render unto Him from the bottome of 
 /^^TS '^'^i ^^^^^ hearts their humblest thanks and praises, doe truly, firmely, 
 the 'do- ' '^ assuredly, and in the sincerity of their hearts, thinke, and doe 
 jninions hereby recognize, acknowledge, and declare, that King James the 
 thereunto Second haveing abdicated the government, and their Majestyes 
 belonging, haveing accepted the Crowne and royall dignity aforesaid, their 
 said Majestyes did become, were, are, and of right ought to be, 
 by the lavves of this realme, our soveraigne liege Lord and Lady, 
 King and Queene of England, France, and Ireland, and the 
 dominions thereunto belonging, in and to whose princely persons 
 the royall State, Crowne, and dignity of the same realmes, with 
 all honours, stiles, titles, regalities, prerogatives, powers, jurisdic- 
 tions and authorities to the same belonging and appertaining, are 
 most fully, rightfully, and intirely invested and incorporated, 
 united, and annexed. 
 Settlement of VIII. And for preventing all questions and divisions in this 
 the Crown realme, by reason of any pretended titles to the Crowne, and for 
 ^tifn^^^th' P^^serving a certainty in the succession thereof, in and upon 
 succession! which the unity, peace, tranquillity, and safety of this nation doth, 
 under God, wholly consist and depend, the said Lords Spirituall 
 and Temporall, and Commons, doe beseech their Majestyes that 
 it may be enacted, established, and declared, that the Crowne, 
 and regall government of the said kingdoms and dominions, with 
 all and singular the premisses thereunto belonging and appertain- 
 ing, shall bee and continue to their said Majestyes, and the sur- 
 vivour of them, during their lives, and the life of the survivour of 
 
XV.] Restoration to the Bill of Rights, 687 
 
 them. And that the entire, perfect, and full exercise of the regall 
 power and government be onely in, and executed by, his 
 Majestic, in the names of both their Majestyes dureing their joynt 
 lives ; and after their deceases the said Crowne and premisses 
 shall be and remaine to the heires of the body of her Majestic ; 
 and for default of such issue, to her Royall Highnesse the 
 Princesse Anne of Denmarke, and the heires of her body ; and 
 for default of such issue, to the heires of the body of his said 
 Majestic : and thereunto the said Lords Spirituall and Temporall, —1 il 
 
 and Commons, doe, in the name of all the people aforesaid, most 
 humbly and faithfully submitt themselves, their heires and pos- 
 terities, for ever : and doe faithfully promise. That they will stand 
 to, maintaine, and defend their said Majestyes, and alsoe the 
 limitation and succession of the Crowne herein specified and con- 
 tained, 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 is Exclusion 
 inconsistent with the safety and welfare of this Protestant/'"'^''.' ^^^^^^^'^* 
 kingdome, to be governed by a Popish Prince, or by any King or '^PaUsts and 
 Queene marrying a Papist, the said Lords Spirituall and Temporall of persons 
 and Commons, doe further pray that it may be enacted, That all marrying- 
 and every person and persons that is, are, or shall be reconciled P^P^^^^- 
 
 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 uncapeable to inherit, possesse, or 
 enjoy the Crowne and government of this realme and Ireland, 
 and the dominions thereunto belonging, or any part of the same, 
 or to have, use, or to exercise any regall power, authoritie, or 
 jurisdiction within the same ; and in all and every such case or 
 cases the people of these realmes shall be and are hereby 
 absolved of their allegiance, and the said Crowne and govern- 
 ment shall from time to time descend to, and be enjoyed by, such 
 person or persons, being Protestants, as should have inherited 
 and enjoyed the same, in case the said person or persons soe 
 reconciled, holding communion, or professing or marrying as 
 aforesaid, were naturally dead.^ 
 
 X. And that every King and Queene of this realme, who at any Declaration 
 time hereafter shall come to and succeede in the Imperiall Crowne to be made by 
 of this kingdome, shall, on the first day of the meeting of the first ^^^ ^^^^'^ 
 Parlyament, next after his or her comeing to the Crowne, sitting in ''j^^l~ after 
 his or her throne in the House of Peers, in the presence of the succeeding to 
 Lords and Commons therein assembled, or at his or her corona- the croivn. 
 tion, before such person or persons who shall administer the coro- 
 
 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. 
 
688 
 
 The Stuai't Period, 
 
 [Cii. XY. 
 
 Enacting 
 ilause. 
 
 Disfensing 
 
 power 
 
 abolished. 
 
 Exception 
 in favour 
 of charters^ 
 grants, and 
 pardons 
 tnade before 
 23 Oct., 
 1689. 
 
 nation oath to him or her, at the time of his or her takeing the 
 said oath (which shall first happen), make, subscribe, and audibly 
 repeate the declaration mentioned in the statute made in the 
 thirty eth yeare of the raigne of King Charles the Second, en- 
 tituled 'An Act for the more effectuall preserveing the King's 
 person and government, by disableing Papists from sitting in 
 either House of Parlvament.* But if it shall happen, that such 
 King or Queene, upon his or her succession to the Crowne of 
 this realme, shall be under the age of twelve years, then every 
 such King or Queene shall make, subscribe, and audibly repeate 
 the said declaration at his or her coronation, on the first day of 
 meeting of the first Parlyament as aforesaid, which shall first 
 happen after such King or Queene shall have attained the said 
 age of twelve years.^ 
 
 XL All which their Majestyes are contented and pleased shall 
 be declared, enacted, and established by authoritie of this present 
 Parlyament, and shall stand, remaine, and be the law of this 
 realme for ever ; and the same are by their said Majestyes, by 
 and with the advice and consent of the Lords Spirituall and 
 Temporall, and Commons, in Parlyament assembled, and by the 
 authoritie of the same, declared, enacted, and established 
 accordingly. 
 
 XIL And bee it further declared and enacted by the authoritie 
 aforesaid. That from and after this present session of Parlyament, 
 noe 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 noe 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 dureing this present 
 session of Parlyament.^ 
 
 XIIL Provided that noe charter, or grant or pardon granted 
 before the three-and-twentyeth day of October, in the yeare 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 remaine of the same force and effect in law, and noe 
 other, then as if this Act had never beene made. {Statutes of the 
 J^eaim, vi. 142 — 145.) 
 
 * This clause supplements the preceding by enacting that every English 
 sovereign shall, as a test of non- popery, repeat and subscribe, in full Parlia- 
 ment or at the coronation, the Declaration against Transubstantiation, Adora- 
 tion of the Virgin, and the Sacrifice of the Mass, contained in the Parliamentary 
 Test Act of ihe 30th Car. IL st. 2, c. i.— See supra, p. 656. 
 
 2 [No such Bill, however, was passed. — Ed.] 
 
689 
 
 (, ^ ^ 
 
 CHAPTER XVI. 
 
 PROGRESS OF THE CONSTITUTION SINCE THE 
 REVOLUTION. 
 
 THE ACT OF SETTLEMENT: THE CABINET SYSTEM. 
 
 The Revolution of 1688 marks at once a resting-place 
 and a fresh point of departure in the history of the English 
 Constitution. The Bill of Rights was a summing up, as [The Bill 
 it were, and final establishment of the Legal bases of the compfetel] 
 Constitution. With Magna Charta and the Petition of the Legal 
 Right it forms the Legal Constitutional Code, to which no Constitu- 
 additions of equal importance (except the Constitutional ^^*^^^- 
 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 enact- 
 ments — the Reform Act of 1832, supplemented 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 Revolu- 
 tion. 
 
 As might however be expected in a living organism, the Growth of 
 Constitution has not remained stationary during a period Jvrltte^n or 
 of nearly two centuries. But its greatest changes have customary 
 not been brought about by Legislative enactment. Whilst tion. 
 the Legal code has remained substantially unaltered, there 
 has grown up by its side a purely unwritten and Conven- 
 
 C.H. Y Y 
 
6go Progress of the ConstittUion [Ch. 
 
 tional code/ which, firmly established as a part of the 
 Constitution though still unknown to the Law, has so com- 
 pletely modified the practical working of the Legal code, as 
 to form a present Constitution which would be scarcely 
 recognisable, 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 Revolution, and the rule of Parliament was defini- 
 tively established; but the mode of exercising that rule 
 has since become something wholly different from what it 
 then was, and in its present form of Parliamentary govern- 
 ment through a Cabinet Ministry, forms the main charac- 
 teristic of our Constitutional system. 
 Ad oj The history of this remarkable development has now to 
 
 be briefly considered, but before doing so, it will be con- 
 venient to set out the text of the Act of Settlement (12 & 
 13 Will. III. c. 2), a statute important not only on account 
 of the group of Constitutional provisions embodied in it, 
 which were to take effect from the accession of the House 
 of Hanover, but also as the Title Deed of the reigning 
 Dynasty, and a veritable Original Contract between the 
 Crown and the People." 
 
 ^ See Freeman, Growth of Eng. Const., p. 112. 
 
 ^ The Act of Settlement is characterised by Hallam (Const. Hist. iii. 196) 
 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. 
 
 JSettlemeni 
 1700- I 70 I 
 
XVI.] since the Revolution. 691 
 
 ACT OF SETTLEMENT. 
 
 12 & 13 Will. III., c. 2 (1700 and 1701). 
 
 An Act for the further Limitation of the Crown and better securing 
 the Rights and Liberties of the Subject?- 
 
 Whereas in the first year of the reign of your Majesty, and oi Recital of 
 our late most gracious Sovereign Lady Queen Mary (of blessed *^^^{>^ ^^' 
 memory), an Act of Parliament was made, intituled, An Act for ^^ 'J"^' ' 
 Declaring the Rights and Liberties of the Subject ^ and for settling 
 the Succession of the Crown, wherein it was (amongst other things) 
 enacted, established, and declared, That the Crown and Regall 
 Government of the kingdoms of England, France, and Ireland, 
 and the Dominions thereunto belonging, should be and continue 
 to your Majestie and the said late Queen, during the joynt lives 
 of your Majesty and the said Queen, and to the survivor : And 
 that after the decease of your Majesty and of the said Queen, the 
 said Crown and Regall Government should be and remain to the 
 heirs of the body of the said late Queen : and for default of such 
 issue, to her Royall Highness the Princess Ann of Denmark and 
 the heirs of her body : and for default of such issue, to the heirs 
 of the body of your Majesty. And it was thereby further enacted, 
 That all and every person and persons that then were or after- 
 wards should be reconciled to or shall hold communion with the 
 See or Church of Rome, or should professe the Popish Religion, 
 or marry a Papist, should be excluded, and are by that Act made 
 for ever incapable to inherit, possess, or enjoy the Crown and 
 Government of this Realm and Ireland and the Dominions there- 
 unto belonging, or any part of the same, or to have, use, or exercise 
 any Regall power, authority, or jurisdiction, within the same : 
 And in all and every such case and cases the people of these 
 Realms shall be and are thereby absolved of their allegiance : 
 and that the said Crown and Government shall from time to time 
 descend to and be enjoyed by such person or persons, being 
 Protestants, as should have inherited and enjoyed the same in 
 case the said person or persons so reconciled, holding communion, 
 professing, or marrying as aforesaid, were naturally dead. After 
 the making of which Statute and the Settlement therein contained, 
 your Majestie's good subjects, who were restored to the full and 
 free possession and enjoyment of their Religion, Rights, and 
 Liberties, by the providence of God giving success to your 
 Majestie's just undertaking and unwearied endeavours for that 
 purpose, had no greater temporall felicity to hope or wish for 
 
 ^ Rot. Pari. 12 & 13 Gul. III. p. i, n. 2 ; Revised Statutes, ii. 93, 
 
 Y Y 2 
 
692 
 
 Progress of the Constitution 
 
 [Ch. 
 
 then [than] to see a Royall Progeny descending from your 
 Majesty, to whom (under God) they owe their tranquiUty, and 
 whose ancestors have for many years been principall assertors of 
 the Reformed Religion and the liberties of Europe, and from 
 our said most gracious Sovereign Lady, whose memory will always 
 be precious to the subjects of these Realms : And it having since 
 ami that the pleased Almighty God to take away our said Sovereign Lady, and 
 late Queen also the most hopefull Prince William Duke of Gloucester (the 
 "cioucelter ^^^ surviving issue of her Royall Highness the Princess Ann of 
 are dead; Denmark), to the unspeakable grief and sorrow of your Majesty 
 and your said good subjects, who, under such losses, being 
 sensibly put in mind that it standeth wholly in the pleasure of 
 Almighty God to prolong the lives of your Majesty and of her 
 Royall Highness, and to grant to your Majesty, or to her Royall 
 Highness, such issue as may be inheritable to the Crown and 
 Regall Government aforesaid by the respective limitations in the 
 said recited Act contained, doe constantly implore the Divine 
 and that his mercy for those blessings: And your Majestie's said subjects 
 Majesty had having daily experience of your royall care and concern for the 
 ^^'^^"ddf PJ^ssent and future welfare of these kingdoms, and particularly 
 the throne a recommending from your throne a further provision to be made 
 for the Succession of the Crown in the Protestant line for the 
 happiness of the Nation and the security of our Religion ; and it 
 being absolutely necessary for the safety, peace, and quiet of this 
 Realm to obviate all doubts and contentions in the same by 
 reason of any pretended titles to the Crown, and to maintain a 
 certainty in the Succession thereof to which your subjects may 
 safely have recourse for their protection in case the limitations in 
 the said recited Act should determine : Therefore, for a further 
 provision of the Succession of the Crown in the Protestant line, 
 we, your Majestie's most dutifull and loyall subjects, the Lords 
 Spirituall and Temporall, and Commons, in this present Parlya- 
 ment assembled, do beseech your Majesty that it may be enacted 
 and declared, and be it enacted and declared by the King's most 
 excellent Majesty, by and with the advice and consent of the 
 Lords Spirituall and Temporall, and Commons, in this present 
 The Princess Parliament assembled, and by the authority of the same, That the 
 Sophia.Elec- most excellent Princess Sophia, Electress and Dutchess Dowager 
 tress and ^f Hannover, daughter of the most excellent Princess Elizabeth, 
 DowaZr of ^^^^ Queen of Bohemia, daughter of our late Sovereign Lord 
 Hanover, King James the First, of happy memory, be and is hereby 
 declared to be the next in succession in the Protestant line to the 
 Imperiall Crown and Dignity of the said Realms of England, 
 France, and Ireland, with the Dominions and territories there- 
 unto belonging, after his Majesty and the Princess Ann of 
 Denmark, and in default of issue of the said Princess Ann and of 
 his Majesty respectively ; and that from and after the deceases 
 
 further pro 
 vision for 
 the Succes- 
 sion of the 
 Crown in 
 the Protes- 
 tant line. 
 
 daughter of 
 the late 
 Queen of 
 Bohemia, 
 daughter 
 of King 
 James I., 
 declared next 
 
 Successor to °^ ^^^ ^^^^ Majesty our now Sovereign Lord, and of her Royall 
 
XVI.] shice the RevohUion, 693 
 
 Highness the Princess Ann of Denmark, and for default of issue the Crown 
 of the said Princess Ann and his Majesty respectively, the ^^V^^^/ 
 crown and Regall Government of the said kingdoms of England, /^^ Princess 
 France, and Ireland, and of the dominions thereunto belonging, Anne, in 
 with the Royal State and Dignity of the said Realms, and zXl default of 
 honours, stiles, titles, regalities, prerogatives, powers, jurisdictions, ^^^^^pj^^ess 
 and authorities, to the same belonging and appertaining, shall be, ^„^ f^js Ma- 
 remain, and continue to the said most excellent Princess Sophia y<?j/j/ respec- 
 and the heirs of her body, being Protestants : And thereunto the Hvely; ami 
 said Lords Spirituall and Temporall, and Commons, shall and f^^^JX^ 
 will in the name of all the people of this Realm most humbly and ^^^-^^ /»^. 
 faithfully submit themselves, their heirs, and posterities ; and do testants. 
 faithfully promise that after the deceases of his Majesty and her 
 Royall Highness, and the failure of the heirs of their respective 
 bodies, to stand to, maintain, and defend the said Princess Sophia 
 and the heirs of her body, being Protestants, according to the 
 Limitation and Succession of the Crown in this Act 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. 
 
 II. Provided always and it is hereby enacted that all and The persons 
 every person and persons who shall or may take or inherit the inheritable 
 said Crown by vertue of the limitation of this present Act, and is, ^^J^^^^^f^^' 
 are, or shall be reconciled to or shall hold communion with the commtmion 
 See or Church of Rome, or shall profess the Popish Religion, or with the 
 shall marry a Papist, shall be subject to such incapacities as in Church of 
 such case or cases are by the said recited Act provided enacted f^l^l/^f^^^ 
 and established : And that every King and Queen of this Realm, ^/^^ ^/^^ ' 
 who shall come to and succeed in the Imperiall Crown of t\i\^ former Act ; 
 kingdom by vertue of this Act, shall have the Coronation Oath [those sue- 
 administered to him, her, or them, at their respective coronations, ^f^^^^y/^^/l 
 according to the Act of Parliament made in the first year of the ^^ ^;^^^y 
 reign of his Majesty and the said late Queen Mary, intituled An coronation 
 Act for establishing the Coronation Oath, and shall make, accordingto 
 subscribe, and repeat the Declaration in the Act first above ^^^* ^^ 
 recited, mentioned, or referred to in the manner and form thereby 
 prescribed. 
 
 III. And whereas it is requisite and necessary that some Further pro- 
 further provision be made for securing our Religion, Laws, and J'J^^^^m^ 
 Liberties, from and after the death of his Majesty and the ^^^^ugion. 
 Princess Ann of Denmark, and in default of issue of the body of Laws, cmd 
 the said Princess and of his Majesty respectively : Be it enacted Liberties 
 by the King's most excellent Majesty, by and with the advice and ^^^^^^*; 
 consent of the Lords Spirituall and Temporall, and Commons, in 
 Parliament assembled, and by the authority of the same : — 
 
 (i) That whosoever shall hereafter come to the possession of this ^y^fJ^J'^L 
 Crown, shall Joy n in com7nunion with the Church of England as by prqvi- 
 law established. signs. 
 
694 
 
 Progress of the Constitution 
 
 [Ch. 
 
 (2) That in case the Croivn and Imperiall 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 i?igage in any warrfor the 
 defence of any dominions or territories which do not belong to the 
 Crown of England, without the consent of Parliamejit. 
 
 (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.]^ 
 
 (4) [That from and after the time that the further limitation 
 by this Act shall take effect, all matters and things relating to the 
 well-governing of this kingdom, which are properly cognisable in 
 the Privy Councill by the laws and customs of this realme, shall 
 be transacted there, and all resolutions taken thereupon shall be 
 signed by such of the Privy Councill as shall advise and consent 
 to the same.] ^ 
 
 (5) [That after the said limitation shall take effect as aforesaid, 
 no person born out of the kingdoms of England, Scotland, or 
 Ireland, or the dominions thereunto belonging, (although he be 
 naturalised or made a denizen), except such as are born of English 
 parents, shall be capable to be of the Privy Councill, or a member 
 of either House of Parliament, or to enjoy any office or place of 
 trust, either civill or military, or to have any grant of lands, 
 tenements, or hereditaments from the Crown to himself, or to 
 any other or others in trust for him.] ^ 
 
 Aliens. 
 
 Their dis- 
 abilities by 
 Common 
 Law. 
 
 Alaj^na 
 Ch'arta. 
 
 Stat. 32 
 Hen. VIII. 
 c. 16. 
 
 Denization 
 and natu- 
 ralisation. 
 
 ^ This clause was repealed by i Geo. I. stat. 2, c. 51. 
 
 2 Repealed by 4 Anne, c. 8, s. 24. [Revised Stat. 4& 5 Anne, c. 20, s. 27.] 
 ^ Repealed by 7 & 8 Vict. c. 66 (Mr. Hutt's Naturalisation Act) as to snck 
 parts as are inconsistent with the provisions of that Act (viz., sees. 3, 5, 6 and 
 16). The statute 7 & 8 Vict. c. 66, is itself repealed by 33 & 34 Vict. c. 14 
 (the Naturalisation Act, 1870), by sec. 7 of which last Act the above clause of 
 the Act of Settlement is virtually repealed as to all persons obtaining a certifi- 
 cate of naturalisation. This 5th clause of the Constitutional provisions of the 
 Act of Settlement was founded, like the 2nd and 3rd, on a very reasonable 
 jealousy of a foreign king and foreign favourites. It 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 naturalisation of 
 any person should be received without a clause disqualifying 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 
 William III. in appointing foreigners who accompanied him from Holland to 
 high positions in the English State, but the feeling had always existed more or 
 less. By the Common Law aliens were incapacitated from holding land or any 
 public office, and even from exercising any civil rights. Magna Charta {supra, 
 p. 143) granted certain privileges to foreign merchants, but all aliens dwelling 
 in England long remained subject to higher taxation and to many vexatious 
 restrictions, more particularly as to retail trade. By stat. 32 Hen. VIII. c. 16, 
 they were further prohibited from taking any shop or dwelling-house on lease, 
 and they were at all times liable to be ordered by the Crown to quit the realm. 
 The last 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 naturalisa- 
 tion by Act of Parliament, the latter mode not merely enabling him to hold 
 
XVI.] since tlie Revolution, 695 
 
 (6) [That no person who has an office or place of profit under 
 
 land, but to inherit it from others and to transmit it by inheritance to his 
 -children, whether born before or after his naturalisation. By stat. 7 Jac. I. Stat. 7 
 c. 2, it was, however, enacted that no person should be naturalised unless \iQ Jac. I. c. 2. 
 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 i Geo. I. 
 •St. 2, c. 4, for insuring the observance of the 5th clause of the Act of Settle- Stat, i Geo. 
 ment, were occasionally dispensed with by special Acts of Parliament passed /. st. 2, c. 4. 
 previously to the introduction of Bills for the naturalisation of particular indi- 
 viduals. In 1708 one general Act was passed (7 Anne, c. 5) for the naturali- 
 sation of all foreign Protestants, but this was repealed three years afterwards. 
 In 1753, the famous Jew Bill was passed (26 Geo. II. c. 26) enabling foreign The ^Jeiv 
 Jews lobe naturalised without taking the sacrament as required by the 7 Jac. I. Billy 1753. 
 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. c. 67, the preliminary sacramental test imposed by the 7 Jac. I. c. 2, 
 was abolished in all cases ; and in 1844 the provision of i Geo. I, st. 2, c. 4, 
 iis to naturalisation bills was also repealed by 7 & 8 Vict. c. 66, s. 2. While 
 in the interest, or supposed interest, of the English people, aliens were sub- Right of 
 jected to certain disabilities, and even to liability to expulsion when the safety Asylum. 
 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 con- 
 spiracies against the Government, led to the passing of an Alien Act (33 Alien Acty 
 Geo. III. c. 4) placing all foreigners under strict surveillance, and empowering 1793. 
 the Secretary of State to remove 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 tem- 
 porarily 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, together 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 circulat- 
 ing papers hostile to the Government in France, was removed from our Euro- 
 pean dominions. On the resumption of the war the Alien Act was again 
 renewed in its integrity ; after the peace of 18 14, 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 Registration 
 of aliens was still, however, insisted on, and fresh provisions for this purpose of aliens ^ 
 were enacted in 1836 by the 6 &7 Will. IV. c. ii ; but their execution has 1836. 
 gradually fallen into disuse. During the political disturbances of 1848 the 
 English Executive were empowered by Parliament (11 & 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 naturalisation of aliens had been greatly facilitated 
 by Mr, Hutt's Act, 7 & 8 Vict. c. 66, which enabled them, on obtaining a cer- Mr. Htitt's 
 tificate from the Home Secretary, and taking the oath of allegiance, to acquire Naturaliza- 
 all the rights and capacities of natural-born British subjects, except the capacity Hon Act^ 
 of becoming a member of either House of Parliament, or of the Privy Council, 1844. 
 or any other rights and capacities specially excepted in the certificate. This 
 Act has since been repealed by the Naturalisation Act of 1870 (33 & 34 Vict. Naturaliza- 
 ■c. 14, amended by 35 & 36 Vict. c. 39), which has completely altered the tion Act, 
 status of aliens and naturalised subjects, upsetting the ancient maxim, ''nemo 1870. 
 patriam in qud natus est exuere, aut ligeantiae debitum ejurare, potest," and ren- 
 dering much of the learning as to allegiance and aliens contained in the famous 
 
696 Progress of the Constitution [Cn. 
 
 Repealed the King, or receives a pension from the Crown, shall be capable 
 
 ^ ^"^R^^* ^^ serving as a member of the House of Ck)mmons.] 
 
 Stat. 4&s' (7) That after the said limitations shall take effect as aforesaid, 
 
 Anne, c. 2.0 Judges' commissions be made quamdiu se bene gesserint and their 
 
 s. 28]. salaries ascertained and established ; but upon the address of both 
 
 Other pro- Houses of Parliament ^ it may be lawfull to refnove them} 
 
 visions (8) That no pardon under the Great Seal of England be 
 
 enacte in pleadable to an impeachment by the Commons in Parliament?" 
 
 6 Anne, c. 7. 1^- ^"^^ whereas the Laws of England are the birthright of the 
 
 General con- people thereof, and all the Kings and Queens who shall ascend 
 
 firmation of the throne of this Realm ought to administer the government of 
 
 the Laws and ^^ ^^^^ according to the said laws, and all their officers and 
 
 CitaUites of . . , ° .' , 
 
 the realm for Himisters ought to serve them respectively accordmg to the same ; 
 
 securing the the said Lords Spirituall and Temporall, and Commons, do there- 
 
 established fore further humbly pray, That all the Laws and Statutes of this 
 
 ''thi^Thil''^ Realm for securing the Established Religion, and the Rights and 
 
 and liberties Liberties of the people thereof, and all other laws and statutes of 
 
 of the people, 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 Spirituall and Temporall, and Commons, and by 
 
 authority of the same, ratified and confirmed accordingly. 
 
 Growth The 4th and 6th of the Constitutional clauses of the Act 
 
 OF THE 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 goivernment.^ The fourth clause was 
 
 Calvin^ s case {supra, p. 518, n. 2), and in subsequent cases, now only historically 
 interesting. Under the existing law an alien may take, acquire, hold, ami 
 dispose of real and personal property in the United Kingdom, of every descrip- 
 tion (except British ships) in the same manner in all respects as a natural-bora 
 British subject, but without the right to any office or franchise, municipal, par- 
 Naturalised liamentary, or other ; and on obtaining a certificate of naturalisation from one 
 Alien tww of Her Majesty's Principal Secretaries of State, he becomes entitled, in the 
 invested with United Kingdom, to q\\ political zind other rights and privileges, and subject to 
 political as ^1^ ^^^ obligations, of a natural-born subject. It is also provided that a natural- 
 well as other hom subject may become a "statutory alien" by being voluntarily naturalised 
 rights of in a Foreign State, and may again acquire British nationality by permission of 
 natural-born ^ Secretary of State. 
 
 subject. ^ This important provision, which established the independence of the Judicial 
 
 bench, as well as the provision in the 8th clause that the Royal pardon should 
 not be pleadable to an impeachment, had been omitted in the hasty and im- 
 perfect Bill of Rights. Siipra, p. 681. 
 
 2 See supra, p. 546, n. 
 
 3 [It should be noticed that Continental writers are apt to use the expression 
 • Cabinet ' in a broad sense, as equivalent to ' Ministry.' Such is its applica- 
 tion, e.g., in an interesting article, Dei Govtrno Farlamentare, by A. Romaco 
 
XVI.] since the Revolution, 697 
 
 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, 
 had it not been repealed, would have entirely severed 
 the connection between the House of Commons and the 
 Executive. 
 
 Of the Conciliu7n Ordinaritmt something has already The Con- 
 been said in an earlier chapter of this work.^ Consisting ^^y,"J'/^,^/' ^' 
 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 origin- 
 ally 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 becoming merged in 
 that assembly whenever it was convened. Gradually, how- 
 ever, 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* deve- 
 loped into the National Parliament, 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 com- 
 moners (not necessarily members of the House of Com- 
 mons) were admitted to the Council board. In 1404, under 
 Henry IV., the Council consisted of 19 members, of whom 
 
 Catania, in the Circolo Giuridico of Palermo, for July and August, 1881. This 
 does not apply to M. Boutmy, who, in Nouv. Rev. Hist, de Droit, Paris, 1878, 
 p. 37 seq.y Art. Les Sources de la Const. AngL, notices the striking anomaly of 
 the position of the Cabinet, which he justly calls ' ce pivot du regime parlemen- 
 taire,' Not only the thing, but, as he remarks, the very name, is unknown to 
 the statute law (droit ecrit). To the same effect, M. Glasson, Hist, du Dr. et 
 des Inst. Pol. de PAngL, vol. vi., p. 28, observes, ' En realite, c'est le Cabinet, 
 appuye sur la majorite des Chambres, qui a I'initiative de toutes les affaires du 
 gouvernement, et quoiqu'il n'ait pas, comme on le sait, une existence legale, il 
 a completement relegue au second rang le Conseil prive.^ The relegation to an 
 inferior position here spoken of is, of course, to be taken as referring to the 
 share of the Privy Council, as such, in administration, and not to the Judicial 
 aspect of the Council, expanded by the growth of the Colonies. — El).] 
 1 Supra^ pp. 182, 191-2. 
 
Council. 
 
 698 Progress of the Constitution [Ch. 
 
 3 were Bishops, 9 Peers, and 7 Commoners.' They were 
 bound by a special oath of fidelity and secrecy, and re- 
 ceived 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 as- 
 Jlie Privy siduous members were formed into a select or confidential 
 committee, exercising alone all the administrative 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 Councillors, the ordinary council- 
 lors 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 1533, the Ordinary Council con- 
 sisted of 40 members (22 being Commoners), and was 
 divided, for Judicial and Administrative purposes, into 5 
 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 number of Com- 
 moners, 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. Under the 
 Tudors the large infusion of Commoners changed the nature 
 of the Council from a mixed checking 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 
 
XVI.] since the Revolution, 699 
 
 Judicial and Legislative powers 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. 
 
 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 characteristics of the Council 
 — its action through committees — Charles formed a small 
 select committee or Cabinet Council,^ with whom he con- The Cabinet 
 certed 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 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.' " The word * cabal ' with the 
 meaning of ' club ' or ' association of intriguers ' had been 
 popularly applied to the secret councillors of the King 
 
 ^ ' The . . name of a cabinet council, ' says Hallam, 'as distinguished from the 
 larger body, may be found as far back as the reign of Charles I.' (Const. Hist, 
 iii. 182) ; but it occurs in the preceding reign in the writings of Lord Bacon, 
 who, in treating of the 'inconveniences of counsel,' says, 'for which incon- 
 veniences, 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. 
 
 - Trenchard, Short History of Standing Armies, p. 9. [Quoted by Hallam, 
 u. J.— Ed.] 
 
700 
 
 Progress of the Constitutio7i 
 
 [Ch. 
 
 The ' Cabal ' 
 
 ministry, 
 
 1671. 
 
 Temple's 
 scheme for 
 reorganisa- 
 tion of the 
 Privy Coun- 
 cil, 1679. 
 
 The Cabinet 
 
 system 
 
 resumed. 
 
 even under James I., and the accidental coincidence that, 
 in 1 67 1, the Cabinet consisted of the five unprincipled 
 ministers, CHfford, Arlington, 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. More- 
 over, though convenient and even necessary for adminis- 
 trative 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 irresponsible 
 to the nation. Accordingly, in 1679, an attempt was made, 
 on the advice of Sir William Temple, to restore the Privy 
 Council to its former position. It was 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 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.^ 
 
 This distinction of the Cabinet from the Privy Council 
 
 ^ 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 the author was 
 indebted for several of the details in the text. 
 
XVI.]. since the Revolution, 701 
 
 has ever since continued. The Privy Council ^ still remains 
 the only legally recognised 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 essential feature of our 
 system of Parliamentary government. The firm establish- Change in 
 ment of the Cabinet system has, however, only been ren- character- 
 dered possible and advantageous by a gradual, but long ^stics. 
 since completed, change in its essential characteristics. 
 Under the last two Stuarts the Cabinet was, in truth, a 
 cabal of the king's servants for sustaining the authority of 
 the Crown, not only against its legally authorised Privy 
 Councillors, but against the wishes and power of Parlia- 
 ment. Since the Revolution it has become a Ministry,^ 
 nominally appointed by the Sovereign, but in reality an 
 Executive Committee of the two Houses of Parliament, 
 practically chosen by the majority of the House of 
 Commons. 
 
 ^ Since the time of Charles 11. the number of Privy Councillors has been 
 greatly augmented, and is now indefinite. The appointment, which confers the 
 title of 'Right Honourable,' is frequently given as an honorary reward for 
 important political services ; but no Privy Councillor attends a meeting of the 
 Council unless specially summoned, and ' with the exception of such of them as 
 are called cabinet ministers, the privy councillors are not in modern practice 
 ordinarily summoned to advise the sovereign on affairs of State.' (Stephen, Com. 
 5th ed. ii. 476.) The right to attend without summons was, however, asserted 
 by the Dukes of Argyle and Somerset on the memorable occasion of Queen 
 Anne's last Council in 1714, when they suddenly appeared unbidden at the 
 Council board, and disconcerted the plans of the Jacobites. (See Lord Mahon's 
 Hist, of Eng. i. 91.) 
 
 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,' afterwards substituted the word 'Ministers' as being 
 * better known. ' This alteration gave rise to a discussion, in the course of 
 which some peers maintained that 'Ministers' and 'Cabinet Council' were 
 synonymous, others that there might be a difference. The Duke of Argyle 
 thought ' all ministers were of the Cabinet Council, but that all the Cabinet 
 Council were not ministers ; ' Lord Ferrers that ' the word Ministry is more 
 copious than Cabinet Council, ' Lord Cowper maintained that they were both 
 terms of an uncertain signification, and ' Cabinet Council ' a word ' unknown 
 in our law ; ' while the Earl of Peterborough observed that ' he had heard a 
 distinction between the Cabinet Council and the Privy Council ; that the Privy 
 Councillors were such as were thought to know everything, and knew nothing, 
 and those of the Cabinet Council thought nobody knew anything but them- 
 selves.' Cobbett's Pari. Hist. vi. 971. 
 
702 Progress of the Constitution [Ch. 
 
 Party This result is mainly due to the division of the English 
 
 govemmen . p^^pj^^ ^^^ consequently of the Parliament, into two great 
 political parties which have contended one against the 
 other for the control of the executive power. The origin 
 of the Whigs and Tories, and their essential points of 
 difference, have been already considered.^ It was not, 
 however, until the accession of George I. that government 
 by party was fully established. The Whigs, who had 
 William III. secured the Crown to William III., expected that he 
 ^\^T^ would choose his Ministers solely from their ranks. But 
 the King was strongly opposed to government by party. 
 He wished to retain the chief directing power himself, and 
 to secure the support of a united Parliament in carrying 
 out his Continental policy of opposition to Louis XIV. of 
 France. Accordingly, down to the year 1693, he distri- 
 buted the chief offices in the government about equally 
 between the two parties. But this policy, while it main- 
 tained the chief efficient power in the hands of the King, 
 not only failed to secure unanimity among the various 
 Ministers of the Crown, but even allowed of open hostility 
 between them, as well in the discharge of their executive 
 duties as in the discussions in Parliament. The incon- 
 venience of this state of things was so great that at length, 
 but adopts it between 1693 and 1696, acting on the advice of Robert, 
 of Sunder-^^ Earl of Sunderland, William abandoned the neutral posi- 
 land. tion 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 
 «The Junto.' as * the Junto.' ^ But the Ministerial system of government 
 
 ^ Supra^ pp. 660-62. 
 
 2 [This body may be described in the words of Green, Hist. Eng. People, iv. 
 61, as ' a group of statesmen,' at the head of the "Whig party, 'whose close 
 union in thought and action gained them the name of the Junto.' The name 
 itself would appear to be a somewhat distorted form of the Spanish Jutitay 
 which perhaps does not really bear any closer sense of union than that which may 
 or may not prevail among members of the same Board or Committee, though 
 
XVI.] since the Revolution. 7^3 
 
 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 Montagu, 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 similarly situated would now act, kept their 
 places. Thus the old want of harmony between the ser- 
 vants of the Crown and the representatives of the People 
 returned in full force, and continued, with some short 
 intervals of composedness, until the general election of 
 1705 again sent up a Whig majority to Parliament.^ 
 
 It was during this interval of disunion between the Attempted 
 Cabinet and the majority in Parliament, and while the ancient au- 
 possibility of still greater divergence, on the accession of a ^?^^^y °^ 
 foreign dynasty, was present in men's minds, that an dl by Act of 
 attempt was made at once to check the personal action of ^"^^ttlement. 
 the King and to secure the responsibiHty of his Ministers 
 by the provisions of the 4th clause of the Act of Settlement. 
 That clause provided, as we have seen, 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 be 
 
 Mr. Skottowe, SAor^ Hist, of Parliament, Lond. 1886, p. 136, thinks that 
 it practically means ' executive union.' The members of the "Whig Junto were 
 Admiral Russell, 'the victor of La Hogue,' and in Green's view, loc. cit., * the 
 most prominent ' ; Sir John Somers (Solicitor-General, 1689, Attorney-^ 
 General, 1692, Lord Keeper, 1695, Lord Chancellor and created Lord Somers, 
 1697), ' an advocate who had sprung into fame by his defence of the Seven 
 Bishops' ; Thomas, 5th Lord Wharton, created Earl Wharton, 1706, and 
 Marquis of Wharton, 171 5, ' known as the most dexterous and unscrupulous of 
 party managers ' ; and Charles Montagu, who was * fast making a reputation 
 as the ablest of English financiers ', a reputation which Mr. Elliot, however, 
 in his Life of Sidney, Earl of Godolphin^ maintains ought in justice to be 
 transferred to Godolphin. Montagu, who was a younger son of Hon. George 
 Montagu, and grandson of Henry, ist Earl of Manchester, was a Commissioner 
 of the Treasury, 1692, and Chancellor of the Exchequer, 1694, and was 
 created Baron Halifax, 1700, and Earl of Halifax, 17 14. His praises were 
 sung by Addison and Steele, while Pope returned upon him Montagu's own 
 ridicule of Dryden's Hind and Panther. It should be noted that the term 
 * Junto ' was again employed for the whole Ministry of the day in 1708. — Ed.] 
 1 Macaulay, Hist. Eng. [1861, ch. xxiv., v. 165]. 
 
704 Progress of the Constitution [Ch. 
 
 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, as already mentioned, early in Queen Anne's 
 reign, before it could come into operation. 
 Queen Queen Anne, equally with William III., displayed a 
 
 like"offri strong and persistent preference for a mixed Ministry, 
 government, composed of the moderate men of each party. Her first 
 Ministry, throughout almost its whole existence, was of this 
 character, and the complete predominance of the Whig ele- 
 ment which finally ensued was very distasteful to the Queen.^ 
 On the fall of Godolphin's Administration in 17 10,- both 
 she and Harley were anxious to avoid a Ministry entirely 
 Tory, and vainly endeavoured to induce the Whig leaders 
 to join in forming a Coalition Ministry, but with a pre- 
 ponderance of power in the hands of the Tories.'^ The 
 general election of that year, which was greatly influenced 
 by the exertions of the clergy, who had been roused to 
 opposition by the trial of Sacheverell,* produced such a 
 crushing defeat of the Whigs, that the Tory Ministry under 
 
 ^ * Her letters to Godolphin, when the accession of Sunderland to the 
 ministry had become inevitable, express her sentiments on the subject in the 
 strongest and clearest light. She urged that the appointment would be equiva- 
 lent to throv^'ing herself entirely into the hands of a party ; that it was the 
 object of her life to retain the faculty of appointing to her service honourable 
 and useful men on either side ; that if she placed the direction of affairs exclu- 
 sively in the hands either of Whigs or Tories, she would be entirely their slave, 
 the quiet of her life would be at an end, and her sovereignty would be no more 
 than a name.' Lecky, Hist, of Eng. in the Eighteenth Century, i. 224; and 
 see Coxe's Life of Marlborough, ch. 51, 52. 
 
 - [On Godolphin, in his home relations, see Evelyn's Zf/^ of Mrs. Godolphiv^ 
 ed. by S. Wilberforce, D.D., Lond. 1848, and for recent views on his Political 
 life, see Life of Sidney^ Earl of Godolphin^ K.G., by Hon. Hugh Elliot, 
 i.ond., 1888, and Edinburgh Review^ April, 1889, Art. Sidney , Earl of 
 Godolphin, and review of the Life, by J. R. Tanner, in Eng. Hist. Kex'., 
 Jan., 1890. — Ed.] 
 
 •* Lecky, Hist, of Eng. i. 225. 
 
 ■• [Mr. Minto, in his Defoe, Eng. Men of Letters, pp. 81-85, passes an un- 
 favourable judgment on the Impeachment, of which he says, ' It would have 
 been a wise thing for the Ministry to have left Sacheverell to be dealt with l)y 
 their supporters in the press and in the pulpit.' Defoe recommended that he 
 should be used ' as we do a hot horse ', and in the Revie^v he called for the 
 punishment of the * doctrines rather than the man.'— Ed.] 
 
XVI.] since the Revolution, 705 
 
 Harley, now made Earl of Oxford, retained undisputed 
 sway until the close of the Queen's reign (1714). 
 
 It was, however, under the first two Kings of the House Final estab- 
 of Hanover, the accession of whose dynasty was to have ^J^g Cabinet 
 marked the extinction of the Cabinet system, that Parlia- systemunder 
 
 . i_ r Ti/r. • -11 the first two 
 
 mentary government by means of a Mmistry — nommally Georges. 
 
 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 H., 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 cheer- 
 fully acquiesced in the ascendancy of able ministers who 
 had suppressed and crushed pretenders to their crown — 
 who had triumphed over parliamentary opposition, and 
 had borne all the burthen of the Government. Left to the 
 indulgence of their own personal tastes — occupied by fre- 
 quent 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.' ^ This indifference of the first two Georges to Important 
 everything not affecting the interests of their Continental ^hek Ldif- 
 dominions had most important and beneficial effects. It ference to 
 allowed the English Constitution to develop freely under a pontics. 
 kingship from which the element of personal Royal power 
 was for the time practically ehminated. George III., who 
 ' gloried in the name of Briton ' without understanding |n 
 what it is that the glory of a Briton consists, strove hard 
 
 1 May, Const. Hist. i. 7. 
 C.H. z Z 
 
7o6 
 
 Progress of the Constitution 
 
 [Ch. 
 
 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 unrecognised in the 
 
 written Constitution, as a part of our polity almost as 
 
 essential as the Parliament itself 
 
 No conception of the English Constitution, in its existing 
 
 theory and practice, can have any approach to accuracy 
 
 which does not include a firm grasp of the complicated 
 
 and delicate nature of the Cabinet system — that unique 
 
 production of the silent working of the political forces of 
 
 the Nation towards the equilibrium in which, by means of 
 
 that system, they now repose.^ Lord Macaulay was the 
 
 first among our great historians to expound its true nature. 
 
 Macaulay's < fhe Ministry,' he tells us, ' is, in fact, a committee of leadinor 
 description , ^ f ,,''.'. ,, , ^ 
 
 members of the two Houses. It is nommated by the Crown ; 
 but it 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 Minister 
 conducts the ordinary business of his own office without 
 reference to his colleagues. But the most important busi- 
 ness 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 Parlia- 
 ment the Ministers are bound to act as one man on all 
 questions relating to the executive government.^ If one of 
 
 of the 
 
 Ministerial 
 
 system. 
 
 * [What was true at the time this work first saw the light, is not necessarily 
 true now. The * equilibrium ' here described seems scarcely likely to be main- 
 tained in the present changed and still changing condition of political parties, 
 and under an extended Franchise which, it is contended, must be still further 
 extended, to reach the goal of * one man, one vote,' and, if so, it is also con- 
 tended, must logically be extended to * one woman, one vote.' — Ed.] 
 
 ^ [This picture represents an ideal not always in accordance with the facts, 
 under modern administrations, the tendency of Ministers seeming to be towards 
 a considerable and increasing latitude of expression, though such expression 
 should be the open indication of differences of opinion among those charged 
 with the Government. — Ed.] 
 
XVI.] since the Revolution, 7^7 
 
 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 Hkely 
 to embarrass them. If they forfeit that confidence, if the 
 parHamentary majority is dissatisfied with the way in which 
 patronage is distributed, with the way in which the pre- 
 rogative 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.' ^ 
 
 The expressions 'the Ministry' and 'the Cabinet' are * Ministry' 
 sometimes employed as though they were synonymous ; ^^^ . j^ot 
 but such a use of them is misleading. The term ' Minis- synonymous, 
 try ' properly includes all the Ministers, yet of these only a 
 select number — usually about twelve, but liable to variation 
 from time to time even in the same administration — con- 
 stitute the inner council of the Crown, and incur the higher 
 responsibilities, while they exercise the higher powers, of 
 Government. The rest of the Ministry, although closely 
 united with their brethren in the Cabinet, occupy a secon- 
 dary and subordinate position. 
 
 Although, as we have seen, historically connected in its Cabinet 
 origin with the Privy Council, the Cabinet Council has tinct"from'^ 
 now no connexion with that body, except that every Privy 
 member of it, if not already a Privy Councillor, is made 
 one immediately on joining the Cabinet. But an essential 
 characteristic of the Cabinet is that its members should 
 combine in their persons the office of Minister of the 
 Crown with that of membership of one of the Houses of Essential 
 Parhament, and more especially of that House which [^^g 5^^^°}^' 
 
 _^ be members 
 
 of the Legis- 
 1 Macaulay, Hist. Eng. ch. xx. [i86i, iv. 437] 1866, iv. 44; and see Mr. lature. 
 Bagehot's ' English Constitution ' for a spirited and able sketch of the Conven- 
 tional 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. 
 
 z z 2 
 
7o8 Progress of the Constitution [Ch. 
 
 though still conventionally termed the ' Lower House ' is 
 admittedly the ' greatest of the powers of the State.' The 
 necessity for this rule has not however been unquestioned. 
 ' A Cabinet which included persons not members of the 
 legislative assembly might still,' says an eminent writer on 
 the Constitution, ' perform all useful duties.' ^ But inde- 
 pendently of the practical inconveniences which, as he ad- 
 mitted, would beset the work of government by a Cabinet 
 so constituted, it would no longer be, what it now is, ' a 
 committee of the two houses,' and would thus be disabled 
 from performing its essential work as the regulator of the 
 relations between the Crown, the House of Lords, and the 
 Commons, and the means by which their theoretically con- 
 flicting powers are brought into practical harmony.^ But 
 although the rule which requires the Minister to be a 
 member of the Legislature is now firmly established, so that 
 any deliberate and persistent departure from it would be 
 justly regarded as utterly unconstitutional, yet there is no 
 law or legal usage to render it binding ; and it has at least 
 once within the last half century been disregarded, though 
 then only temporarily and in an individual case.^ 
 Secrecy of It is remarkable that a body wielding such vast powers 
 ' as the Cabinet should hold all its deliberations and adopt 
 all its decisions in absolute secrecy. No official record, or 
 
 1 Bagehot, Eng. Const, p. 13. 
 
 2 The late Mr. Bagehot (Eng. Const, p. 14) defined the Cabinet as *a com- 
 bining committee — a hyphen which joins, a buckle which fastens, the legislative 
 part of the state to the executive part of the state. In its origin it belongs to the 
 one, in its functions it belongs to the other.' But the Cabinet, he proceeds 
 (p. 15), * though it is a committee of the legislative assembly, is a committee with 
 a power which no assembly would — unless for historical accidents, and after 
 happy experience — have been persuaded to entrust to any committee. It is a 
 committee which can dissolve the assembly which appointed it ; it is a com- 
 mittee with a suspensive veto — a committee with a power of appeal. Though 
 appointed by one Parliament, it can appeal if it chooses to the next. Theo- 
 retically, indeed, the power to dissolve Parliament is entrusted to the Sove- 
 reign only ; and there are vestiges of doubt whether in all cases a Sovereign is 
 bound to dissolve Parliament when the Cabinet asks him to do so. But 
 neglecting such small and dubious exceptions, the Cabinet which was chosen 
 by one House of Commons has an appeal to the next House of Commons.' 
 
 ' Mr. Gladstone was a Secretary of State between December 1845 ^^^ J^^X 
 1846, without, from accidental circumstances, possessing a seat in the House 
 of Commons. But the occurrence excited some animadversion at the time. — 
 Gleanings of Past Years, i. 225. 
 
XVI.] since the Revolution. 709 
 
 minute of any kind, is kept of its proceedings ; and even a 
 private note is disliked. Nor is any non-member even 
 allowed to be present at its sittings, except on the rare 
 occasions when some departmental official is summoned 
 to impart special information. This peculiarity has been 
 animadverted upon by Hallam as * an apparent deficiency 
 in our constitutional security/ on account of the difficulty 
 of legally proving the participation of any one member 
 (except the Lord Chancellor, who is responsible for setting 
 the Great Seal to Treaties and other documents) in any 
 measures deserving of impeachment.^ It is indeed one of 
 the many theoretical anomalies of the English Constitution, 
 the delicate mechanism of which depends so largely for its 
 efficient working upon the loyalty of the various deposi- 
 taries of power. Should, however, this specific anomaly 
 ever, unhappily, prove a practical difficulty, the vitality of 
 the Constitution will doubtless be equal to devising a 
 practical remedy. 
 
 The chief of the Cabinet is the Prime Minister or, as he ThePremier. 
 is more commonly termed, the Premier. His position is not 
 less peculiar or characteristic than that of the Cabinet itself 
 Officially, besides being a Privy Councillor, he is merely 
 the First Lord of the Treasury, in which capacity he exer- 
 cises, jointly with four others, the powers of the Lord High 
 Treasurership, one of the great offices of the State which 
 since the time of Harley has been thrown into commission. 
 He has no legal primacy over the other members of the 
 Cabinet, as is indeed necessarily the case in a body which 
 has itself no legal status. In official precedence he ranks 
 below many of the other Ministers.^ He is selected by the 
 Sovereign, whose choice among natural-born subjects, is 
 legally unrestrained : but in fact, the choice of the Sove- 
 reign is limited to the one or two members of the predo- 
 minant political party who can command a majority in the 
 
 1 Const. Hist. iii. 185. 
 
 ' Unless he happen to combine the office of Lord Privy Seal with that of 
 First Lord of the Treasury [as was the case with Lord Beaconsfield. — Ed.] 
 
7IO Progress of the Constitution [Ch. 
 
 House of Commons. When charged by the Sovereign 
 with the task of forming an Administration he proceeds to 
 the selection of occupants for the various Ministerial offices, 
 and submits their names for the approval of the Crown.^ 
 
 Relations of ^ '^^^ delicate relations of the Cabinet to the Crown on the one hand, and 
 the Cabinet ^^ ^^ Houses of Parliament and the People on the other, as well as the 
 to the Crown internal relations of its members to one another and to the Premier, have not 
 and to Par- Y^^ been touched upon. They are indeed topics upon which none but a 
 liajuent : Cabinet Minister is fully competent to speak. Fortunately we now possess an 
 account of them, at once graphic and authentic, from the pen of a most 
 distinguished modern Premier. * The association,' says Mr. Gladstone, 
 * of the Ministers with the Parliament, and through the House of Commons 
 with the People, is the counterpart of their association as Ministers with the 
 Crown and the prerogative. The decisions that they take are taken under the 
 competing pressure of a bias this way and a bias that way, and strictly represent 
 what is termed in mechanics the composition of forces. Upon them, thus placed, 
 it devolves to provide that the Houses of Parliament shall loyally counsel and serve 
 the Crown, and that the Crown shall act strictly in accordance with its obliga- 
 tions to the nation. ... In the face of the country the Sovereign and the Minis- 
 ters are an absolute unity. The one may concede to the other ; but the limit of 
 concession by the Sovereign is at the point where he becomes willing to try the 
 experiment of changing his Government : and the limit of concession by the 
 Ministers is at the point where they become unwilling to bear, what in all circum- 
 stances they must bear while Ministers, the undivided responsibility of all that 
 is done in the Crown's name. But it is not with the Sovereign only that the 
 to the House Ministry must be welded into identity. It has a relation to sustain to the House 
 of Lords ; of Lords ; which need not, however, be one of entire unity, for the House of 
 Lords, though a great power in the State, and able to cause great embarrass- 
 ment to an Administration, is not able by a vote to doom it to capital punish- 
 ment. Only for fifteen years out of the last fifty [1878] has the Ministry of the 
 to the House ^^^ possessed the confidence of the House of Lords. On the confidence of 
 of Commons ^^ House of Commons it is immediately and vitally dependent. This confi- 
 dence it must always possess, either absolutely from identity of political colour, 
 or relatively and conditionally.' 
 Threefold Of the members of the Cabinet, Mr. Gladstone proceeds, * Every one of 
 
 capacity of them acts in no less than three capacities : as administrator of a department of 
 Cabinet State ; as member, of a legislative chamber ; and as a confidential adviser of 
 
 Alinister. the Crown. Two at least of them add to those three characters a fourth ; for 
 Lead f ^" ^^^^ House of Parliament it is indispensable that one of the principal 
 .7 ff ^ Ministers should be what is termed its Leader. This is an office the most in- 
 -«<?«-y^. definite of all, but not the least important. With very little of defined prero- 
 gative, the Leader suggests, and in a great degree fixes, the course of all 
 principal matters of business, supervises and keeps in harmony the action of his. 
 colleagues, takes the initiative in matters of ceremonial procedure, and advises 
 the House in every difficulty as it arises. 
 Internal re- 'The nicest of all the adjustments involved in the working of the British 
 lations of the Government is that which determines, without formally defining, the internal 
 Cabinet : relations of the Cabinet. On the one hand, while each minister is an adviser 
 of each ^^ ^^^ Crown, the Cabinet is an unity, and none of its members can advise as 
 
 member ^^ individual, without, or in opposition actual or presumed to, his colleagues. 
 
 ' On the other hand, the business of the State is a hundred-fold too great in 
 
 volume to allow of the actual passing of the whole under the view of the col- 
 (a) to the lectcd Ministry. It is therefore a prime office of discretion for each Minister 
 Cabinet as to settle what are the departmental acts in which he can presume the con- 
 a whole ; currence of his colleagues, and in what more delicate, or weighty, or peculiar 
 
XVI.] since the Revolution. Tii 
 
 Not the least of the many advantagfes which have ac- Increased 
 
 . security of 
 
 crued from the estabhshment of the Cabinet form of Parlia- the Crown 
 mentary government has been the increased security of the t^^s under^^' 
 Crown and of its Ministers. The old Constitutional maxim the Cabinet 
 that * the King can do no wrong ' is now literally true, for ^^^ ^™* 
 his acts are really the acts of his Ministers ; and his Minis- 
 ters 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 resign office. In- 
 stead of a revolution or a Parliamentary impeachment, a 
 change of Ministry suffices to preserve harmony between 
 the Crown and the people. 
 
 cases, he must positively ascertain it. So much for the relation of each 
 Minister to the Cabinet ; but here we touch the point which involves another 
 relation, perhaps the least known of all, his relation to its head. 
 
 ' The head of the British Government is not a Grand Vizier. He has no {b) to its 
 powers, properly so called, over his colleagues : on the rare occasions, when a head. 
 Cabinet determines its course by the votes of its members, his vote counts 
 only as one of theirs. But they are appointed and dismissed by the Sovereign 
 on his advice. In a perfectly organised administration, such for example as 
 was that of Sir Robert Peel in 1841-6, nothing of great importance is matured, 
 or would even be projected, in any department without his personal cogni- 
 sance ; and any weighty business would commonly go to him before being 
 submitted to the Cabinet. He reports to the Sovereign its proceedings, and 
 he also has many audiences of the august occupant of the Throne. He is 
 bound, in these reports and audiences, not to counterwork the Cabinet ; not 
 to divide it ; not to undermine the position of any of his colleagues in the 
 royal favour. ... As the Cabinet stands between the Sovereign and the Parlia- 
 ment, and is bound to be loyal to both, so he stands between his colleagues 
 and the Sovereign, and is bound to be loyal to both. 
 
 ' As a rule, the resignation of the First Minister, as if removing the bond of 
 cohesion in the Cabinet, has the effect of dissolving it. A conspicuous instance 
 of this was furnished by Sir Robert Peel in 1846 : when the dissolution of the 
 Administration, after it had carried the repeal of the Corn Laws, was under- 
 stood to be due not so much to a united deliberation and decision as to his 
 initiative. The resignation of any other minister only creates a vacancy. In 
 certain circumstances, the balance of forces may be so delicate and susceptible 
 that a single resignation will break up the Government ; but what is the rule • 
 
 in the one case is the rare exception in the other. The Prime Minister has no 
 title to override any one of his colleagues in anyone of the departments. So 
 far as he governs them, unless it is done by trick, which is not to be supposed, 
 he governs them by influence only. But upon the whole, nowhere in the wide 
 world does so great a substance cast so small a shadow ; nowhere is there a 
 man who has so much power, with so little to show for it in the way of formal 
 title or prerogative.' — * Kin beyond Sea,' pub. in * North American Review,' 
 Sept. 1878, repub. in * Gleanings of Past Years,' i. 225, 226, 235, 241, 242-4. 
 
7 1 2 Progress of the Constitution [Ch. 
 
 Exclusion of The sixth clause of the Act of Settlement, by which all 
 and^pension- placemen and pensioners were excluded from Parliament, 
 ers from the ^^g directly aimed, not at the Cabinet system, but at the 
 Commons, dangerous influence which the Crown had acquired through 
 the profuse distribution of offices and pensions among the 
 members of the Legislature. This means of corrupting the 
 representatives of the people had been extensively em- 
 ployed under the last two Stuarts ; and William III., 
 amidst the difficulties with which he found himself sur- 
 rounded, 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 Com- 
 missioners of Stamps and Excise.^ 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 Cabinet government which we now enjoy. The clause 
 was, however, as we have seen, repealed before it could 
 come into operation, in the fourth year of Queen Anne's 
 reign ; ^ and two years afterwards, by the * Act for the 
 Security of the Crown and Succession,'^ more reasonable 
 provisions were enacted for the prevention of corrupt in- 
 
 1 4 & 5 Will. & Mary, c. 21 (Stamps); 11 & 12 Will. III. c 2, s. 50 
 (Excise). 
 * 4 Anne, c. 8, s. 25. 
 3 6 Anne, c. 7. 
 
XVI.] since the Revolution, 71, 
 
 fluence. (i) Every person holding 'any office or place of 
 profit whatsoever under the Crown ' created since the 25th 
 of October, 1705, or in receipt of a pension during the 
 pleasure of the Crown, was incapacitated from sitting in 
 the House of Commons ; and (2) 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.^ So long as the system of Ministerial govern- 
 ment, with responsibility to the House of Commons, was 
 not fully estabHshed, and while the House of Commons 
 itself remained liable to corrupt influences, and, under a 
 restricted franchise, failed to represent the people, such a 
 provision as the latter, which compelled the acceptance of 
 office by a representative to be submitted to the approval 
 of his constituents, acted as a salutary check both upon the 
 Crown and the leading members of the Commons. But 
 now, with a reformed suffi-age, and under a customary or 
 unwritten Constitution in which one of the principal func- 
 tions 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, how- 
 ever, several attempts have been made to modify the prin- 
 ciple, they have been always unsuccessful, with the single 
 exception contained in the Reform Act of 1867, dispensing 
 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.^ 
 
 The exception 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 places ; and 
 in 1 74 1 no less than two hundred appointments were held 
 by members of the House of Commons.^ In the following 
 
 ^ 6 Anne, c. 7. To check the increase of placemen, certain restrictions 
 were also imposed on the multiplication of commissioners. 
 - 30 & 31 Vict. c. I02, s. 52. 
 ^ JLords' Protests, 1 741. 
 
714 Progress of the Constitution [Ch. 
 
 The 'Place year, however, the Place Bill,^ which had been thrice re- 
 Bill'of 1742. .,, ,^ /.^,^ 
 
 jected by the Commons and twice oy the Lords, passed 
 
 into an Act, excluding from the House a large number of 
 officials, chiefly clerks and other subordinate officers of the 
 Lord Rock- public departments. In 1782 several other offices which 
 C^if List had been generally held by members of Parliament were 
 Act, 1782. suppressed by Lord Rockingham's Civil List' Act ; ^ and 
 the policy of official disfranchisement has been since almost 
 invariably followed whenever new officers have been ap- 
 pointed by Acts of Parliament. 
 Secret The incapacity imposed by the Act 6 Anne, c. 7, upon 
 
 pensions. pensioners of the Crown during pleasure, though extended 
 at the commencement of the next reign to pensioners for 
 terms of years,^ 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 con- 
 siderably 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 dis- 
 qualifying contractors for the public service from sitting in 
 the House.^ 
 Exclusion of The Common Law Judges had always been disqualified 
 Hous^e^o?*"^ from sitting in the House of Commons ; and this exclusion 
 Commons, was extended to the Scotch Judges under George II., and 
 
 ^ 15 Geo. II. c. 22. 
 
 2 22 Geo. III. c. 82. 
 
 3 I Geo. I. c. 56. 
 
 "* 22 Geo. III. c. 45. The Irish Parliament, in 1793, applied the principle 
 of the English Act of Anne to its own members by disqualifying all holders of 
 offices under the Crown or Lord Lieutenant created after that time. This 
 disqualification was extended, at the Union, to the Parliament of the United 
 Kingdom ; and at the same time several new disqualifications in respect of 
 Irish offices were added (41 Geo. III. c. 52). 
 
 In the first Parliament of Geo. I. there were 271 members holding offices, 
 pensions, and sinecures. In the first Parliament of George IL, 257 ; in the 
 first Parliament of George IV. but 89, 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 comm.issions. On Places and 
 Pensions in the House of Commons, see May, Const. Hist. i. pp. 369-37$. 
 
XVI.] since the Revolution. "J^^ 
 
 to the Irish Judges under George IV. The same rule was 
 applied in 1840 to the Judge of the Court of Admiralty ; 
 and the holders of all newly-created Judicial posts have 
 been disqualified by the Acts under which they were con- 
 stituted. The Master of the Rolls — hitherto the sole Judge 
 who had 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 36 & 37 Vict. c. 66, s. 9. 
 
 [The general position of affairs in regard to Constitutional questions since 
 the Revolution is thus tersely summed up by M. Glasson, Hist, die Dr. et des 
 Inst. Pol. de fAiigL v. 404-5. ' La revolution de 1688 inaugure definitivement 
 le regime parlementaire en Angleterre. La royaut^ est plus que jamais limitee 
 dans sa prerogative. L'habile prince d'Orange . . . s'attacha a user I'un 
 contre I'autre les deux grands partis qui se disputaient le pouvoir dans le 
 Parlement. ... La reine Anne, douee, comme son pere, d'un esprit etroit 
 et borne, . . ne parvint a exercer aucune influence sur le Parlement. George I'^'" 
 etait, en tous points, un prince allemand du dix-huitieme si^cle, . . infatue de 
 son importance princiere, incapable de prononcer un mot d' Anglais, ignorant 
 I'esprit du peuple sur lequel il devait regner. II eut cependant I'habilete de 
 comprendre combien sa situation etait delicate. . . George II. se trouva au 
 commencement de son regne dans une situation pire encore que celle de son 
 pere. . . . C'est seulement sous George III. . . . que la royaute se releve 
 serieusement.' Interesting particulars throwing light on modern views of 
 Ministerial government may be found in the Edinburgh Reviezv, for Jan., 
 1890, Art. Life of Lord jfohtt Russell^ and in Mr. Spencer Walpole's Life, of 
 which it is a criticism, as well as in Mr. Walpole's History of Europe since 1815, 
 Lond. 1878-86. The fact of the growth of a ' genuine Legislative Authority ' in 
 this country, * in opposition to the Executive, still represented by the monarch,' 
 was emphasised by the late Prof. Sheldon Amos, in his Science of Politicsy 
 Lond. 1883, p. 91, as *a world-wide phenomenon simply made more con- 
 spicuous in England by the slow, steady, and uninterrupted manifestation of 
 every one of the links in the chain of development. In other countries the 
 process has only been accomplished after hundreds of years of political stagna- 
 tion, or after periods of anarchy or after the social chaos produced by religious 
 corruption. ' — Ed. ] 
 
7i6 
 
 CHAPTER XVII. 
 
 PROGRESS OF THE CONSTITUTION SINCE THE REVOLU- 
 TION (CONTINUED). 
 
 In the preceding chapter we have discussed the Act of 
 Settlement and the various topics arising out of its provi- 
 sions, including that most important topic of all — the 
 growth and present working of the Cabinet system. Much 
 more remains to be said on the progress of the Constitution 
 since the Revolution ; and with a view as well to clearness 
 of exposition as to conciseness of statement the chief re- 
 maining Constitutional facts may be conveniently grouped 
 under the five heads of (i) the Kingship, (2) the House of 
 Lords, (3) the House of Commons, (4) Religious Liberty, 
 and (5) the Liberty of the Press. 
 
 I. Kingship since the Revolution. 
 I. Kingship The legal prerogatives of the Crown were untouched 
 
 since the - , ^ , . , _. , , 
 
 Revolution, by the Revolution settlement. It was only the recent m- 
 
 novations which were swept away, leaving to the Kingship 
 
 the legal character which it had possessed prior to the 
 
 Legal prero- usurpations of the Tudors and Stuarts. By the written 
 
 the Crown Constitution the King still retains the supreme Executive 
 
 Tth"^^^^ and co-ordinate Legislative power. He calls Parliament 
 
 Revolution, 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 
 
Ch. XVII.] Progress of Constihition since Revolution. 717 
 
 pardon them after conviction. As supreme Military com- 
 mander, 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 Constitu- 
 tional importance) and confer titles, dignities and offices of 
 
 all kinds. He is the legal head and supreme governor of - 
 
 the National Church, and in that capacity convenes, pro- 
 rogues, regulates, and dissolves all Ecclesiastical Synods or 
 Convocations.^ 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.^ 
 
 But in practice these vast prerogatives have now long but now 
 been exercised not at the will of the Sovereign, but of the vested in ks 
 responsible Ministers of the Crown, who represent the will responsible 
 
 Ministers. 
 
 ^ On the early history of Convocation and its relations to the King and Convocation 
 Parliament something has been said supra, p. 262, Ih. n. 3. From the passing 
 of the Act 25 Hen. VIII. c. 19 {supra, p. 443), Convocation has ceased to 
 possess any independent Legislative power, Church and State being alike sub- 
 jected to the supreme power of Parliament. Under Elizabeth it was occasion- 
 ally consulted on questions affecting the national religion, and it confirmed, in 
 1562-3, the XXXIX Articles. By the King's licence Convocation established 
 certain Canons in 1604 (which, however, not having been confirmed by Parlia- 
 ment, are not binding on the laity) ; and attempted to make further regulations 
 in 1640 {supra, pp. 510, 600); but from the year 1664, when the practice of 
 Ecclesiastical taxation was discontinued, even discussions in Convocation prac- 
 tically ceased. About the time of the Revolution attempts were made to resus- 
 citate the action of Convocation, more especially by Atterbury (afterwards 
 Bishop of Rochester), who published a book entitled ' The Rights and Privi- 
 leges of an English Convocation.' In 171 7, the religious ferment excited by Suspended, 
 the Bangorian controversy (arising out of the denunciation by the Lower House 17 17. \ 
 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 imme 
 diately after it had assembled. In 1850 it was again allowed to resume the Resumed, 
 discussion of Church matters ; and in 1861 was empowered by Royal licence 1850. 
 to alter the 29th Canon of i6o[4], 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 worshi]), and these 
 were afterwards incorporated in an Act of Parliament (Act of Uniformity 
 Amendment Act, 35 «& 36 Vict. c. 35). See Hallam, Const. Hist, iii. 242-247 ; 
 Stephen, Commentaries [5th ed.], ii. 544-546. [On Convocation, cf. also 
 post, App. C— Ed.] 
 
 ' See Stephen, Comm. 5th ed. ii. 473-547; and for [Treaty-making Power, cf. 
 Law Magazine and Review, May, 1879, Art. by SirTravers Twiss, Q.C. — Ed. 
 
7 1 8 Progress of the Constitution [Ch. 
 
 of the majority in the House of Commons. *In outer 
 seeming,' it has been well observed; 'the Revolution of 
 1688 had only transferred the sovereignty 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 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 impos- 
 sible permanently to suspend its sittings, or, in the long 
 run, to oppose its will, when either course must end in 
 leaving the Government penniless, in breaking up the army 
 and navy, and in rendering the public service impossible.' ^ 
 Personal in- xhe mode in which the Executive power of the Crown 
 Sovereign, has gradually been transferred to what has been aptly 
 termed ' a board of control chosen by the legislature to 
 rule the nation,' ^ 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 afl'airs long continued to be 
 openly exercised, and is still potent, to an extent which 
 can be known only to the parties themselves, in the confi- 
 dential intercourse of Ministers with the head of the State.' 
 
 1 J. R. Green, Short History of the English People, p. 680. 
 
 * Bagehot, Eng. Const, p. 13. 
 
 ' ' There is not a doubt that the aggregate of direct influence normally exer- 
 cised by the Sovereign upon the counsels and proceedings of her Ministers is 
 considerable in amount, tends to permanence and solidity of action, and confers 
 much benefit on the country, without in the smallest degree relieving the 
 advisers of the Crown from their undivided responsibility.' . . . * It is a moral, 
 not a coercive influence. It operates through the will and reason of the 
 Ministry, not over or against them. It would be an evil and a perilous day 
 for the Monarchy were any prospective possessor of the Crown to assume or 
 claim for himself final, or preponderating, or even independent power, in any 
 one department of the State.' Gladstone, Gleanings of Past Years, i. 42, 233. 
 [In a communication to the author on the subject of a suggested obscurity 
 in the last paragraph, Mr. Gladstone explained the sequence of epithets as 
 follows : 'What I mean by ''independent" is separate ; whereas the "final" 
 and the "preponderating" are assumed to be exercised, so to speak, within 
 the partnership. Such a separate action of the Sovereign could under the 
 rules of our Constitution only be in minor and secondary forms ; for this 
 reason I treat it as the least of' the three. Separate might be a better word 
 than independent. '] 
 
xviL] since the Revolution, 7^9 
 
 Several general causes tended to bring about a decline ^^^ 
 in the personal influence of the Sovereign subsequent to tended to 
 the Revolution. Foremost among these may be placed JJ^^^^^^^^f^ 
 the disputed succession to the Crown. The Hanoverian 
 succession was in very serious danger at the death of Queen 
 Anne ; and the continuing power of Jacobite intrigues 
 was evidenced by the Rebellions of 1715 and 1745. The 
 Divine Right of kings, though permanently negatived at 
 the Revolution, still continued for a time to be inculcated 
 by the Tory party, and by the great majority of the 
 clergy, who taught the duty of Passive Obedience and the 
 sinfulness of rebellion. But with the accession of the 
 House of Hanover, the doctrine of Divine Right became 
 attributable, in the minds of those who believed in it, not to 
 the King de facto but to the heir of the Stuarts. Moreover, 
 George I., from the necessity of the case, placed himself in 
 the hands of the Whig party, who had secured his accession 
 to the throne ; and the Tories, influenced alike by party 
 opposition and by personal objection to the new dynasty, 
 found themselves in the somewhat unnatural position of 
 opponents to the Royal prerogative.^ And while on the one 
 
 ^ [This opposition, into which the Tory party of the day was forced during 
 the earlier part of the last century, however * unnatural ' it may have been or 
 seemed to be, probably aided materially in the development of Constitutional 
 views, and thus may justify Mr. T. E. Kebbel's seemingly somewhat paradoxical 
 statement, in the Co rnhill Magazine, vol. xxxviii., 1878, Art. The Eighteenth 
 Century, p. 541, to the effect that ' In the eighteenth century constitutional 
 government was established, and the British Empire was created.' According 
 to Mr. Kebbel, * what really gave life and meaning to the Parliamentary 
 opposition of those days, was that old antagonism between land and trade 
 which was the growth of the Revolution, and of which the ridiculous side is 
 shown us in Addison's Freeholder^ and the more reasonable one in Shelburne's 
 Autobiography.^ lb. p. 542. Mr. Kebbel subsequently says, that 'the country 
 gentlemen, then the really independent party . . . held that the new Parlia- 
 mentary system was not constitutional,' and that Lord vShelburne constantly 
 speaks of it as a 'sham,' and, p. 543, cites Lord Shelburne's Autobiography to 
 the following effect : — * During the first twenty years of the reign of George II. 
 there were three parties : firstly, the old Whigs, who entirely composed the 
 administration ; secondly, the discontented Whigs, who, one after another, 
 quarrelled with Sir Robert Walpole and the main body ; thirdly, the Tories, 
 to whose character and principles sufficient justice has not been done, owing 
 to the never-ceasing outcry of ministers in confounding them with the Jacobites; 
 but, in fact, they were the landed interest of England, who desired to see an 
 honourable, dignified government, conducted with order and due economy and 
 due subordination, in opposition to the Whigs, who courted the mob in the 
 
720 Progress of the Constitution [Ch. 
 
 hand the personal influence of the Sovereign was opposed 
 by the Tories, both on account of his lack of hereditary- 
 right, and of his alliance with their political foes, that 
 influence itself was rapidly diminished by the increased 
 development of the system of Party government working 
 by means of the Cabinet system.^ 
 
 One very important factor in the declension of tlie 
 Sovereign's personal influence was his abstention, since the 
 death of Queen Anne, from presiding at Cabinet Councils. 
 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 Stuart monarchs, and was 
 maintained, after the Revolution, by William III. and by 
 Anne. William III., a man of consummate political abiHty, 
 was, indeed, his own Prime Minister, his own Foreign Minis- 
 ter, and his own Commander-in-Chief. Queen Anne not 
 Reaches its only regularly presided at Cabinet Councils, but occasion - 
 under ^^°^" ^Y attended debates in the House of Lords. It was only 
 George I. at the accession of George I. that the King's ignorance 
 George II. of the English language and his indifl"erence to English 
 politics caused the introduction of the practice of Cabinet 
 Councils being held, as in the ante-Tudor times Privy 
 Councils had been held, without the presence of the 
 Sovereign. This practice — so essential to the free develop- 
 ment of Parliamentary government ^ — has ever since been 
 
 first instance, and in the next the commercial interest.' And 'these,' Mr. 
 Kebbel urges, ' were the real principles of opposition. The Whigs had 
 exalted the trading interest at the expense of the land, and by setting up a 
 sham monarchy instead of a real one, had violated the spirit of the constitution.' 
 It is difficult to see, however, that the present monarchy is more ' real ' than 
 that of the Georgian era, in Mr. Kebbel's sense of the term. — Ed.] 
 
 ^ See Lecky, Hist, of Eng. i. 217-227. 
 
 * * The presence of the King at the Cabinet either means personal govern- 
 ment — that is to say, the reservation to him of all final decisions which he may 
 think fit to appropriate — or else the forfeiture of dignity by his entering upon 
 equal terms into the arena of general, searching, and sometimes warm discus- 
 sion : nay, and eren outvoting too, and of being outvoted, for in Cabinets, and 
 even in the Cabinets reputed best, important questions have sometimes been 
 found to admit of no other form of decision.' Gladstone, Gleanings of Tas 
 Years, i. 85. 
 
XVII.] since the Revolution. 721 
 
 maintained, and on the principle optimus interpres testis 
 may now be regarded as having ripened into a fixed rule of 
 the Constitution. It is remarkable, however, that like some 
 other important features of our Political Institutions, such 
 as the division of the Legislative assembly into two instead 
 of three Houses,^ the disappearance of the Sovereign from 
 the meetings of the Cabinet should be due not to deliberate 
 design but to a happy accident. 
 
 It is to the credit of George II. — narrow-minded and 
 ignorant as he was — that throughout his long reign of thirty- 
 three years he discharged the duties of a Constitutional King 
 with honourable fidelity, loyally supporting the Ministers 
 to whom he had given his confidence, even at the expense 
 of his own predilections.^ But it was not without an inward 
 struggle that he did so. 'Ministers are the King in this 
 country,' he once bitterly exclaimed ; ^ and relying upon 
 his legal right to choose his own Ministers, he occasionally 
 opposed the accession to office of persons whom he disliked. 
 William Pitt, the * Great Commoner,' was an especial object 
 of his antipathy, having made himself personally offensive to 
 the King by his somewhat intemperate attacks upon the 
 Sovereign's Hanoverian partialities.* But when the King 
 finally yielded, he honestly gave his new Minister a hearty 
 support. 'Sire,' said Pitt, shortly after accepting office, 
 ' give me your confidence and I will deserve it' ' Deserve 
 my confidence,' was the King's reply, ' and you shall have 
 it.' And the promise was faithfully kept.^ 
 
 » Supra, p. 274, lb. n. i. 
 
 2 [That George II. continued Walpole in office though known to have hated 
 him 'hardly less than he had hated his father,' is attributed by Green, 
 Hist. Eng. People, iv. 142, to his being 'absolutely guided by the adroitness of 
 his wife, Caroline of Anspach, ' who had ' resolved that there should be no change 
 " in the Ministry. ' Eventually, as Green says, Walpole gained as great an 
 influence over George II. as he had gained over his father. — Ed.] 
 
 ^ Lord Mahon, Hist, of Eng. iii. 280. 
 
 ■* In a debate, in Dec. 1743, on a motion for defraying the cost of i6,(XX3 
 Hanoverian troops, Pitt affirmed : ' it is now too apparent that this great, this 
 powerful, this formidable kingdom is considered only as a province to a 
 despicable Electorate, and that in consequence of a scheme formed long ago 
 and invariably pursued, these troops are hired only to drain this unhappy 
 nation of its money.' Lord Mahon, Hist, of Eng. iii. 207. 
 
 * Lecky, Hist, of Eng. ii. 466. 
 
 C.H. 3 A 
 
722 Progress of the Constitution [Ch. 
 
 Long But though firmly, and, as the eve;it has shown, perma- 
 
 George III nently, established under the first two Georges, the system 
 llfrisferi^l ®^ Parliamentary government had to undergo a severe 
 system. struggle for existence throughout the reign of George III., 
 who, not content with reigning, was determined also to 
 Character of govern. George III. was a young man of only twenty-two 
 the King, years of age when called to the throne by the sudden death 
 of his grandfather. His education had been sadly mis- 
 managed, so that his * book-learning,' to quote the words 
 of his mother, the Princess of Wales, was ' small or use- 
 less.'^ And limited as was the range of his reading, his 
 capacity to appreciate such authors as he had read was 
 more limited still. *Was there ever such stuff,' he ex- 
 claimed to Miss Burney, ' as great part of Shakespeare .'* 
 only one must not say so ! ' ^ But in one subject, the 
 estimation of his own rights and authority as Sovereign, 
 he had been only too well taught. From his tutor. Lord 
 Bute, and from his mother — 'whose ambition yielded to 
 none,' ^ — he had imbibed the most exalted notions of 
 his Royal dignity. * George, be King ! ' was the lesson 
 which she sedulously instilled into his willing ear/ and he 
 grew up, as Lord Waldegrave, one of his governors, wrote 
 in his private memoirs, ' uncommonly full of princely 
 prejudices contracted in the nursery, and improved by bed- 
 chamber-women and pages of the back-stair.' ^ Yet he was 
 a virtuous and honourable man, irreproachable as a son, a 
 husband, and a father, frugal in his expenditure, shrewd 
 and assiduous, but not always sagacious, in all the business 
 of the State. Benjamin Franklin said of him that he could 
 * scarcely conceive a King of better dispositions, of more 
 exemplary virtues, or more truly desirous of promoting 
 the welfare of his subjects.* But the excellence of his 
 
 . 1 Bubb Doddington's Diary, 357. 
 
 2 Diary and Letters of Mad""^ D'Arblay, 19 Dec. 1785. (ii. 398.) 
 
 3 H. Walpole, Mem. of Reign of Geo. III. i. ii. 
 ■* Earl of Albemarle's Rockingham Memoirs, i. 3. 
 
 ' Lord Waldegrave's Memoirs, i. 9. [On George III. generally, cf. Gent, 
 Mag.f April, 1867, Art. When George III. was King,— "Ed.] 
 
XVII.] since the Revolution. 7^3 
 
 character, and the patriotism of his motives, serve only to 
 emphasise the lesson which the events of his reign have 
 written large for the benefit of all his successors on the 
 throne. He was determined, from the very outset, to re- 
 assert the Personal power of the Sovereign, which had 
 almost disappeared from the sphere of government since 
 the accession of the House of Hanover, and to rule freed 
 from the trammels of Ministers and parties, for the people, 
 indeed, but not by them. The very characteristics which, 
 in a private station, would have been accounted to him as 
 merits, rendered him so much the less fitted for the position 
 of a Constitutional King. During the first twenty-four 
 years of his reign, by his meddlesome energy and restless 
 activity in regulating every affair of State from the greatest 
 to the least, combined with a resolute obstinacy in enforcing 
 his own views against the opinion of his Constitutional 
 advisers, he succeeded in alienating the affections of his 
 people, in reducing the nation from prosperity to the 
 depths of adversity, and in depriving the country for ever 
 of its American Colonies. Later on, his conscientious but 
 absurd scruples as to his coronation oath, postponed, until 
 the boon had lost much of its political efficacy, the just 
 and statesmanlike measure of Roman Catholic Emanci- 
 pation, which the younger Pitt had designed as a means of 
 consolidating the United Kingdom. The naval and mili- 
 tary glories of the latter half of his reign, the popularity of 
 Pitt, whom both the King and the people trusted, and the 
 melancholy illness of the Sovereign, which at once enlisted 
 the sympathies of the nation on his behalf and gave 
 greater independence of action to his Ministers, turned 
 the current of popular opinion in his favour ; and when he 
 died, after years passed in mental and visual darkness, none 
 but kindly thoughts followed the ' good old king ' to his 
 grave. 
 
 In pursuance of his settled resolve to wrest all power The King's 
 from the hands of his ministers and to exercise it himself, seno^4^°"'^ 
 George began his reign by calling to his aid a cabal of 
 secret counsellors, with the Earl of Bute, — a peer of Scot- 
 
 3 A 2 
 
7^4 Progress of the Constitution [Ch. 
 
 land, formerly his tutor, and at that time 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,' ^ brought 
 to the service of the new Sovereign the reverential senti- 
 ments which had distinguished the adherents of the 
 known as ^ Stuarts. Supported by these 'King's friends' and their 
 Friends/^ ^ 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 ecclesiastical, military, and 
 civil patronage which, during the reigns of his two imme- 
 diate predecessors, had been practically at the disposal of 
 the Cabinet, 
 ^f t""^T^^^ On the second day after his accession (25 Oct. 1760), 
 Bute, 1762. the King had caused Lord Bute to be sworn of the Privy 
 Council, and admitted into the Cabinet. The existing 
 Ministry, which had been formed in June, 1757, by a 
 coalition of the Duke of Newcastle with the elder Pitt, were 
 indeed retained in office, but Bute was the real adviser of 
 the King, and held himself forth as the sole expounder of 
 the Royal will and opinions.^ Within five months (25 
 March, 1761) he was gazetted a Secretary of State ; within 
 thirteen, — having in the meantime got rid of Pitt, New- 
 castle, and the other Ministers who declined to retain 
 responsibility without power — the Favourite attained the 
 object of his ambition in May, 1762, as Prime Minister. A 
 few days afterwards he obtained for himself the Order of the 
 Garter. Such a rapid rise would have excited envy even 
 in the case of a very able man ; but Lord Bute was below 
 
 ^ Walpole, Mem. i. 15, cited by May, Const. Hist. i. 13. 
 
 ' Lord Mahon, Hist, of Eng. iv. 322. * Great pains were taken to give an 
 idea of the King's firmness as characteristic of the new reign ; and it was 
 sedulously whispered by the creatures of the Favourite and the Mother, that it 
 was the plan to retain all the late King's Ministers, but that his Majesty would 
 not be governed by them, as his grandfather had been.' H. Walpole, Mem. 
 of Reign of George HI. i. 8. 
 
XVII.] since the Revolution. 725 
 
 mediocrity. By means of wholesale bribery of the House of 
 Commons,^ he succeeded, with doubtful wisdom and in spite 
 of the public wishes, in putting an end to the Seven Years* 
 War, by the Peace of Paris (Feb. 10, 1763). But his intense 
 unpopularity both within and without Parliament soon 
 rendered his position as Minister untenable ; and afraid, as 
 he himself declared, ' not only of falling himself, but of 
 involving his royal master in his ruin,' he suddenly resigned His sudden 
 on the 7th of April, 1763, — only, however, to retire to the 
 interior cabinet, whence he hoped to direct more securely the His con- 
 measures of the new Ministry which, under the presidency influence 
 of Mr. George Grenville, the King had appointed, at the "^^^^^ ^^ 
 recommendation of his favourite. But the new Premier was ministry. 
 by no means contented to be the mere agent of Lord Bute, 
 and the King ultimately found himself bound to dismiss His ultimate 
 the favourite from court, and to promise that he should {^^^ Court, 
 not be suffered to interfere in the Royal councils ' in any 
 manner or shape whatever.' 
 
 During the Bute and Grenville ministries, George III. Arbitrary 
 entered on a course of arbitrary conduct which approached [^g King 
 as nearly to the character of the Stuart government as during the 
 the difference of circumstances would allow. The Duke of Grenville 
 Devonshire— ' the Prince of the Whigs,' as the King's "^^"^**"^5- 
 mother sarcastically termed him — having declined to 
 attend the Council summoned to decide upon the peace 
 with France — a measure highly unpopular with the nation 
 — was insulted 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- 
 
 1 [This was, unfortunately, no novelty. The Whigs, says Green, Hist. Eng. 
 People, iv. 217, had 'managed' the House 'by bribery and borough -jobbing, 
 and George in his turn seized bribery and borough-jobbing as a base of the power 
 he proposed to give the Crown.' But at this date, as Green notes, loc. cit.^ 
 the House of Commons * had ceased in any real and effective sense to be a 
 representative body at all.' — Ed.] 
 
726 Progress of the Constitution [Ch. 
 
 Lieutenancies of their several counties, and the Duke of 
 Devonshire, to avoid a similar affront, found it necessary 
 to resign. Earl Temple was also dismissed from the Lord- 
 Lieutenancy, and struck off the list of Privy Councillors 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, a brave soldier and honourable politician, 
 was dismissed from his civil and military commissions, 
 Colonel Barr^ and Colonel A Court were deprived of their 
 military commands, and Lord Shelburne of his office of 
 Aide-de-camp to the King. Mr. Fitzherbert 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.^ ' To" com- 
 mit 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 displeasure, for their conduct in 
 Parliament ; and denied them the protection which they 
 claimed from privilege and the laws of the country.' ^ 
 The Rock- The King's * policy of proscription ' was soon, however, 
 ministry, destined, for a time at least, to very ignominious failure. 
 1765. Very shortly after Mr. Grenville's appointment to the 
 
 Premiership, differences sprang up between him and the 
 
 ^ Lord Mahon, Hist, of Eng. v. 23, 33, 53. 
 2 May, Const. Hist. i. 30. 
 
XVII.] since the Revolution, 7^7 
 
 King. He had been intended by Lord Bute and the 
 King to be merely the agent for carrying out their wishes ; 
 but although as narrow-minded and imperious in his 
 political views as the King himself, he was also equally 
 confident in his own abilities, equally fond of power, and 
 equally unbending in maintaining what he conceived to 
 be his rights. Twice did the King open negotiations with 
 Pitt for the formation of a new Ministry, but on each 
 occasion without success. Though willing to receive Pitt, 
 he could not bring himself to accept those other * ministers 
 of the late reign who had attempted to fetter and enslave 
 him,' whom Pitt demanded as colleagues, but whom the 
 King had declared he would * never upon any account 
 suffer to come into his service while he lived to hold the 
 sceptre.' ^ At length in 1765, utterly wearied of the 
 Grenville ministry, and determined at any cost to be rid 
 of them, he found himself (July 13th) reduced to the 
 necessity of accepting as Premier the Whig 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 Organised 
 though forced by circumstances to place in office men i^n P?rlia-^ 
 whom he detested, George HL was still determined to^entbythe 
 have his own way. He now adopted a different system friends ' to 
 of tactics. Having, in 1766, vainly resisted in Council f{j^ ^^P^^^ °^ 
 the proposal of his Ministers to repeal the Stamp Act, Act in 1766. 
 which they deemed absolutely necessary for the con- 
 ciliation of the American colonies, he opposed them in 
 Parliament by means of an organised opposition of the 
 * King's friends,' made up not only of independent mem- 
 bers of the Court party, but of office-holders under the 
 Crown, who were encouraged by the King to oppose his 
 
 1 Bedford Correspondence, iii. 224. 
 
 ' [Green, Hist. Eng. People^ iv. 232, says of Rockingham, that he was 'honest 
 of purpose, . . . inclined to a pure and lofty view of the nature and end of 
 government, . . . but he was young, timid, and of small abilities.' — Ed.] 
 
728 Progress of the Constitution [Ch. 
 
 Ministers, and were retained and protected in their offices 
 while voting with the Opposition. 
 Ministry of After twelve months' tenure of office, Rockingham was 
 Pi'ttfi766?^ dismissed by the King (July 1776) ; and Pitt, who was 
 now raised to the Upper House as Earl of Chatham, was 
 prevailed upon to form an Administration on non-party 
 lines, with the Duke of Grafton as Premier, he himself 
 taking only the unimportant post of Lord Privy Seal. 
 The second ministry of Pitt was, however, anything but 
 a success. The * Great Commoner ' lost his popularity by 
 the acceptance of a peerage, and the mysterious and 
 melancholy illness by which he was shortly prostrated, 
 soon prevented him from taking any active part in the 
 Administration, from which he retired in Oct. 1768, leaving 
 it to be carried on by the Duke of Grafton amidst ever- 
 increasing difficulties. 
 
 At length in 1770, the Grafton Ministry resigned ; and 
 the Whig party being divided into two sections, composed 
 of the respective followers of Rockingham and Chatham, 
 the King adroitly seized the opportunity of their dis- 
 union to make Lord North — a Tory, although Chancellor 
 of the Exchequer in the late Administration — his Prime 
 Minister. 
 Influence of It was during Lord North's Administration, which lasted 
 attains'^fs ^^^ twelve years (1770 to 1782), that the Personal influence 
 maximum of the King attained its highest pitch. * Not only,' we are 
 North's told, * did he direct the minister in all important matters of 
 1770^82' 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 mea- 
 sures should be carried. He reserved for himself all the 
 patronage ; he arranged the whole cast of the administra- 
 tion ; settled the relative place and pensions of ministers 
 of state, law officers, and members of the household ; 
 nominated and promoted the English and Scotch judges ; 
 appointed and translated bishops and deans ; and dis- 
 pensed other preferments in the Church. He disposed of 
 military governments, regiments, and commissions, and 
 
XVII.] since the Revolution. 7^9 
 
 himself ordered the marching of troops. He gave and 
 refused titles, honours, and pensions.' ^ 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 mouthpiece 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.' ^ 
 
 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.' ^ 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.' ^ 
 
 Since the accession of the House of Hanover, no Sove- The Royal 
 reign of this country has exercised the prerogative of^^^^' 
 refusing the Royal assent to a Bill which has passed both 
 Houses,^ but it is not surprising to find that George HL 
 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 
 
 ^ May, Const. Hist. i. 58 ; Corr. of Geo. III. with Lord North, passim, and 
 Wraxall's Mem. ii. 148. 
 
 2 Correspondence of Geo. III. with Lord North, 1768-1783 (ed. Donne). 
 
 3 Rockingham, Mem. ii. 179. 
 ^ May, Const. Hist. i. 64. 
 
 * The last occasions on which the prerogative of rejecting Bills was exerted 
 were in 1692 and 1694, when William III. refused the Royal assent to the 
 Bill for Triennial Parliaments and the Place Bill, and in 1707, when Queen 
 Anne rejected a Scotch Militia Bill. 
 
730 Progress of the Constitution [Ch. 
 
 that at no time the right of the Crown to dissent is to be 
 
 used/ ^ 
 Mr. Dun- A^ length, in 1780, Mr. Dunning proposed and carried in 
 ning's Reso- the House of Commons his celebrated resolutions affirming 
 the influence * that the influence of the Crown has increased, is increas- 
 Crown *"S' ^^^ ought to be diminished ; ' 2 but it was not until 
 1780. the lapse of two more years, and after repeated motions of 
 
 Fall of Lord ^^nt of confidence in the Government that Lord North 
 
 Norths 
 
 ministry, was compelled to resign office. The King was now once 
 '^ \ more forced to fall back upon the Whigs, and Lord Rock- 
 
 ham again ingham again (March, 1782) became Prime Minister. He 
 Premier, died, howevcr, in the July following, when the King con- 
 Mini'strv of ^^^^^^ the office of First Lord of the Treasury upon the 
 Lord Shel- Earl of Shelburne, the leader of the Chathamite section of 
 )urne, 17 2. ^^ \Yhig party — a choice which caused a large part of the 
 Ministry, including Charles James Fox, Burke, and the 
 Duke of Portland, who represented the Rockingham sec- 
 tion, to resign and go into factious opposition. Lord Shel- 
 burne continued in office long enough to conclude the Peace 
 of Versailles (20 January, 1783), by which George IIL at 
 length acknowledged, without reserve, the Independence of 
 the United States of America. But when the preliminary 
 articles of Peace were laid before Parliament, the discon- 
 tented Whig faction led by Fox entered into an unnatural 
 coalition with the followers of Lord North, and by their 
 adverse majority in the House of Commons compelled 
 Lord Shelburne to resign. 
 The Coali- The King struggled hard against ' his new tyrants,' the 
 tion Minis- successful leaders of the coalition. Twice he vainly so- 
 
 try, 1783. . ^ 
 
 licited the younger Pitt — who had recently held office for 
 the first time as Lord Shelburne's Chancellor of the 
 Exchequer — to form an Administration ; but at length (2 
 April, 1783), he found himself constrained to accept the 
 Coalition Ministry, of which the Duke of Portland, Fox, 
 and Lord North were the Chiefs. Chafing at his renewed 
 
 * Lord Brougham's Works, iii. 85. 
 2 Cobbett's Pari. Hist. xxi. 347. 
 
XVII.] since the Revolution, "JZ^ 
 
 bondage, the King now thwarted his Ministers to the 
 utmost of his power, and revived the unconstitutional 
 tactics of 1766, through an organised opposition in Parlia- 
 ment by means of ' the King's friends.' 
 
 In order to defeat in the Lords the India Bill introduced Organised 
 by Mr. Fox, Secretary of State, Lord Temple was autho- °n Pa^k-" 
 rised to protest against it in the King's name and to canvass ^^nt by the 
 the Peers against this measure of his own Ministers. ' His friends' to 
 Majesty,' the King wrote on a card, as an authority for the j^^^f g'ln 
 proceeding, * allows Earl Temple to say that whoever voted in 1783. 
 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.' ^ In- Declaration 
 dignant at this conduct, the Commons passed a Resolution, mons against 
 on the 17th December, 1783, 'that to report any opinion, the use of 
 or pretended opinion, of his Majesty, upon any bill, or other name, 17th 
 proceeding, depending in either House of Parliament, with ^^^' ^783- 
 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 Parlia- 
 ment, and subversive of the constitution.' ^ On the very 
 day that this Resolution was passed, the House of Lords 
 .rejected the India Bill, and on the following day the King 
 dismissed his Ministers. 
 
 This abrupt and contemptuous dismissal of a Ministry Abrupt dis- 
 
 , , . . . , TT -missal of the 
 
 who were supported by a vast majority m the House 01 Coalition 
 Commons brought the King into critical conflict with his ^^g^^^^^' 
 Parliament, from which he was only saved by the genius, critical rela- 
 perseverance, and tact of William Pitt, who now consented ^°"^ °^ J,^^ 
 to undertake the formation of a Government. In spite of Parliament. 
 votes of want of confidence, and of attempts to prevent a ^^- ^}^'^' 
 dissolution by postponing the supplies, the youthful Premier 1783. 
 of twenty-five gained the enthusiastic support of the nation, 
 and within four months the Opposition majority, which had 
 
 1 Duke of Buckingham's Court and Cabinets of Geo. III. i. 288, 289; May, 
 Const. Hist. i. 68. 
 
 2 Comm. Journ. xxxix. 842. 
 
732 Progress of the Constitution [Ch. 
 
 been two to one against the Ministry, dwindled down to a 
 General bare majority of one. Parliament was now dissolved ; and 
 ^ln%r^ °^ ^ general election gave to Pitt an overwhelming majority, 
 which maintained him in power for seventeen years. The 
 Triumph of triumph of the King and the Minister was complete ; the 
 King. ascendancy of the Crown was established, and continued, 
 
 for nearly fifty years, to prevail over every other power in 
 The King's the State. But the King's will was no longer supreme, as 
 in1[uence ^^ ^^^ been during the Administration of Lord North, 
 diminished; 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 ten- 
 dency 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.' ^ 
 but still very The wishes of the King, however, still exercised great influ- 
 power u . ^xxQ,^ 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, in 1801, to resign. 
 Out of personal regard for the King, he shortly afterwards 
 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 determination not to 
 admit Mr. Fox into his councils, even at the Jtazard of a 
 civil war] ^ 
 
 During the successive Ministries of Addington (1801), 
 
 ^ May, Const. Hist. i. 78. 
 
 2 Rose's Diaries and Corr, ii. 156, 182; Horace Twiss, Life of Eldon, 
 
 i. 446 se^. 
 
XVII.] since the Revolution, T^Z 
 
 Pitt (1804), Grenville, Fox, and Addington, known as * All 
 
 the Talents' (1806), Portland (1807), and Perceval (1809), 
 
 down to the year 18 10, when the King's mental disease 
 
 necessitated the appointment of a Regency, the Personal 
 
 influence of the Sovereign remained predominant. In 
 
 1807, George III. eyen went so far as to require a written 
 
 declaration from the Grenville Ministry that they would 
 
 never, under any circumstances, propose to him further 
 
 concessions to the Roman Catholics, or even offer him any 
 
 advice upon the subject} This flagrantly unconstitutional 
 
 pledge, which Sir Samuel Romilly maintained in Parliament 
 
 would have rendered any Ministers who gave it guilty of a 
 
 high crime and misdemeanor,^ was firmly but respectfully 
 
 refused, arid the refusal was immediately followed by the 
 
 dismissal of the Ministry. 
 
 Since the reign of George III., but more especially since Diminution 
 
 the Reform Act of 1832 made the House of Commons influence of 
 
 what it had ceased to be — a body really representing^ the ^^9 ^°y^' 
 
 11^ r reig"^ since 
 
 Opinions of the largest estate of the realm, the Commons of the reign of 
 
 England — the Personal influence of the Sovereign in the ^^^^S^ "^• 
 
 Executive administration has steadily declined. It has, ^^ ^P-^' 
 . . , . 1 • 1 r/- T T t sional asscr- 
 
 however, been asserted at mtervals with effect. Under tion. 
 
 George IV., the influence of the Crown remained para- 
 mount, and the two great parties in the State sought the 
 Royal favour first, as the avenue to Parliamentary support. 
 Yet it was in this reign that the remnant of independent 
 Kingship which had survived the Revolution, and even 
 acquired renewed vigour and extension in the fostering 
 hands of George III., may be said to have expired on the 
 day when that King's son and successor, after a. prolonged 
 struggle, finally gave his consent to the Bill for Roman 
 Catholic Emancipation in 1829.^ William IV., indeed, in Sudden dis- 
 November, 1834, endeavoured to assert his personal wishes Lord Mel- 
 in the choice of a Ministry, without reference to the will of ^<=>"''"^'s 
 
 Ministry by 
 William IV. 
 
 1 Letter of Lord Grenville to Marquis of Buckingham, 17 Mar., 1807, in ^^'^' 
 Buckingham's Court and Cabinets of Geo. IIL iv. 143. 
 3 Hansard, 1st Ser. iv. 327. 
 3 See Gladstone, Gleanings, i. 38, 78. 
 
734 
 
 Progress of tJie Constitution 
 
 [Ch. 
 
 Short pre- 
 miership of 
 Sir Robert 
 Peel fol- 
 lowed by the 
 recall of the 
 Melbourne 
 ministry, 
 1835. 
 
 The Bed- 
 chamber 
 Question, 
 1839. 
 
 Parliament, by suddenly dismissing the Whig Ministry of 
 Lord Melbourne, and entrusting to Sir Robert Peel the 
 formation of a Government from a party whose followers 
 numbered less than a fourth of the House of Commons.^ 
 But the impolicy of the act exceeded even its unconstitu- 
 tionality. The new Premier dissolved Parliament ; and the 
 General Election again returned a Liberal majority, much 
 smaller indeed than the former one, but sufficient, more 
 compact, and better organised. 
 
 After a gallant struggle — in which he rivalled the great 
 qualities formerly displayed by Pitt — against the hostile 
 majority which his appeal to the country had evoked, 
 Peel was compelled to resign, and in April, 1835, the 
 Melbourne ministry, with some alterations, was reinstated 
 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 the Melbourne Ministry 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 
 Household were related to the members of the Melbourne 
 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 
 
 * 'The right of the King to dismiss 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 afl5rmed that they had lost the confidence of 
 Parliament that an immediate dissolution was counselled by the new administra- 
 tion. 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 uncon- 
 stitutional character. ' Const. Hist. i. 147. 
 
XVII.] since the Rawlution, 735 
 
 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 those terms ; and the Melbourne Ministry 
 conducted the government for two years longer. It again Sir Robert 
 resigned in 1841, after an appeal to the country had lution of^^" 
 failed to reverse the verdict of the House of Commons, ^^^^ of con- 
 
 . . T-. 1 /- ^ ndence in 
 
 pronounced by a majority of one, on a Resolution of Sir the Ministry, 
 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 Sir Robert 
 the Bedchamber question ; and the principle for which ^^^^^ ig^j, 
 he contended has since been admitted, on all sides, to be 
 Constitutionally correct.^ 
 
 The latest illustration of the personal share which the The Queen's 
 Sovereign takes in public business is afforded by the dum^oITuie 
 Memorandum communicated by the Queen, in 1 8 qo, ^^^1^^^°"^ <^f 
 
 a. Secretflrv 
 
 through Lord John Russell, her Prime Minister, to Lord of State to 
 Palmerston, the Secretary of State for Foreign Affairs.^ jg^-^'^"^"' 
 
 1 By the existing arrangement, which has now long prevailed, the Mistress 
 of the Robes, who is only an attendant at Court on great occasions, changes 
 with the Ministry, but the Ladies in Waiting, who are periodically resident at 
 the Court, and by virtue of their office enjoy much closer personal contact with 
 the Queen, are appointed and changed without regard to the political con- 
 nexions of their husbands. Gladstone, Gleanings, i. 40. 
 
 2 [This Memorandum is obviously connected with the Pacifico case, and 
 illustrates what the Edinburgh Review, Jan. 1890, Art. The Life of Lord John 
 Russell, calls the 'three-cornered duel,' which, as it says, went on during 
 the greater part of Lord John's Administration between Lord Palmerston, 
 the Premier, and the Court. The Edinburgh Reviewer, loc. cit., p. 20, cites 
 from Mr. Walpole's Life a letter from Lord John to Lord Palmerston, i8th Feb. , 
 1850, in which occur passages shewing that the Queen expected to see the last 
 draft of Despatches sent by the Foreign Secretary to British Representatives 
 abroad. ' The Queen asked me again yesterday about the Despatch to Wyse, 
 and said she had not seen it again. . . . She expressed great displeasure that 
 the despatch had been sent off without inserting the discretionary power to 
 Wyse and Parker which I had recommended. . . . Here, then, is a. despatch 
 gone on an important subject which is not in conformity with the Queen's 
 opinions, or mine, or that of the Cabinet.' Lord Palmerston, replying the 
 same day, mentions having received a memorandum from the Queen the day 
 before [17th Feb.] in which she said that Lord John had told her that the 
 Foreign Secretary had 'sent off, unaltered^' the despatch of which on Friday the 
 
736 Progress of the Constitution [Ch 
 
 *The Queen requires,' it declared, 'first, that Lord Palmerston 
 will distinctly state what he proposes in a given case, in 
 order that the Queen may know as distinctly 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 dis- 
 missing that minister. She expects to be kept informed 
 of what passes between him and the foreign ministers 
 before important decisions are taken based upon that inter- 
 course ; 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.^ 
 Constitu- The Constitutional right of dismissing a minister, asserted 
 
 oTdbmSinc ^^ ^^ Queen's Memorandum, is now practically placed at 
 a Minister the disposal of the Premier and the Cabinet, who are thus 
 enabled, as a whole, to exercise, through the Crown, a 
 check upon each individual member. This was exempli- 
 fied, shortly after the French coup d'etat of the 2nd Decem- 
 asserted in ber, 1 85 1, when Lord Palmerston was removed from the 
 of\!ord°^^ Foreign Secretaryship in Lord John Russell's Administra- 
 Palmerston tion, on the ground that he had exceeded his authority in 
 Foreign expressing to the French Ambassador opinions favourable to 
 
 Secretary- 
 
 ship in 1851 
 
 Queen had sent him the draft, accompanied by a memorandum from Lord 
 John suggesting two alterations in which the Queen said that she herself con- 
 curred. Lord Palmerston then says that he sent the Queen the draft itself, 
 * with the alteration which he did make in it, and Lord John's own note 
 stating that such alteration was very good.' What results from all this is 
 clearly, as the Edinburgh Reviewer remarks, that Lord Palmerston's idea was 
 to be * the autocrat of the Foreign Office, ' but it seems equally clear that in 
 the Pacifico case, at least, Lord John Russell was not fair to him, and prac- 
 tically misrepresented Lord Palmerston's conduct to the Queen. Under such 
 circumstances the ' three-cornered duel ' was inevitable.— Ed.] 
 
 ^ Statement by Lord John Russell, Hansard, Deb. 3rd ser. cxix. 91 ; May, 
 Const. Hist. i. 160 ; Martin, Life of the Prince Consort, ii. 300 seq. 
 
XVII.] since the Revolution, 'j;^'] 
 
 the policy of the recent coup d'etat and at variance with the 
 Non-intervention despatch agreed upon by the Cabinet.^ 
 
 While the Personal influence of the Sovereign in the Increased 
 
 r 1 1 iM 1 1-1 power of the 
 
 government of the country has steadily decreased since the Executive, 
 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 
 Empire, 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 Government, 
 while its coercive power has been augmented by the esta- 
 blishment 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 Personal power of the Sovereign, as 
 distinguished from the power of the Regal office, having 
 been restrained within due limits, the ancient jealousy of 
 the Crown, inherited from the struggles of our ancestors, 
 may now almost be said to have died out. 
 
 It was at the Revolution that a limitation was for the Revenues of 
 first time imposed upon the personal expenditure of the 
 Sovereign. Previously it had been customary for the Par- 
 liament, at the commencement of each reign, to grant to 
 the King the ordinary Crown revenues consisting of (i) the 
 hereditary revenues of the Crown itself, viz., the rents of 
 Crown lands, the feudal rights (surrendered by Charles II. in 
 i66o, 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, some- 
 
 1 May, Const. Hist. i. 161. 
 C.H. 3 B 
 
List.' 
 
 y^S Progress of the Constitution [Ch. 
 
 times a little below, the sum of ;^ 1,200,000, which was 
 fixed by Parliament 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 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 Par- 
 liament for the purposes of the war. At the accession 
 of William and Mary, however. Parliament fixed the 
 annual revenue of the Crown, in time of peace, at 
 i^ 1, 200,000, of which about ;^700,ooo (derived from the here- 
 ditary revenues of the Crown, and from a part of the Excise 
 duties) was separately appropriated to what was afterwards 
 The 'Civil called the King's 'Civil List,' comprising 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 expendi- 
 ture of the State. 
 
 The principle that the King's regular and domestic 
 expenses should be restricted to a fixed annual sum dis- 
 tinct from the other departments of public expenditure, 
 was adhered to in succeeding reigns, and down to the 
 accession of George II. the Civil List was maintained at 
 ;^700,ooo. Both Anne and George I., however, incurred 
 debts, the former of ;^i, 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 under- 
 taking 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 ofi" a Civil List debt 
 of ;^456,ooo. 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 
 
i 
 
 XVII.] since the Revolution, 739 
 
 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 
 ;^ 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 IIL enjoyed a considerable 
 further income, derived from the Droits of the Crown and 
 Admiralty and other sources, which was wholly indepen- 
 dent of Parliamentary control ; and yet, notwithstanding 
 the King's economical and even parsimonious mode of liv- 
 ing, and the removal, from time to time, from the Civil List 
 of various charges which were unconnected with the per- 
 sonal comfort and dignity of the Sovereign, his struggle to 
 establish the ascendancy of the Crown by systematic bribery 
 of members of Parliament with places, pensions, and direct 
 gifts of money, compelled him to make repeated applica- 
 tions to the nation for payment of debts upon the Civil 
 List. Altogether, the arrears paid off by Parliament dur- 
 ing his reign — exclusive of a debt of ;^300,ooo charged on 
 the Civil List in 1782, when its expenditure was curtailed 
 and split up into separate classes — amounted to a total of 
 ^3,398,000.1 
 
 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 ;^ 5 10,000, which was at the same 
 time relieved from most of the charges which more pro- 
 perly 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,ooo; and while the 
 removal of civil charges has freed the Crown from any 
 suspicion of indirect influences, the improved administra- 
 tion of the present Sovereign and her two immediate 
 predecessors has rendered it unnecessary to apply to Par- 
 liament during their reigns for the discharge of debts upon 
 the Civil List. 
 
 ^ Report on Civil List, 1815, p. 4 ; May, Const. Hist. i. 243. 
 
 3 B 2 
 
740 Progress of the Constitution [Ch. 
 
 Crown 'pjje surrender of the Crown lands to be disposed of 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.^ 
 Continually augmented by feudal escheats and forfeitures, 
 the Crown lands were as continually diminished by im- 
 provident 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 dimi- 
 nished the Royal patrimony by extensive sales and mort- 
 gages. His example was followed by the Parliaments of 
 the Commonwealth ; and although at the Restoration these 
 latter sales were declared void, Charles 11. soon squandered 
 the estates which had been restored to the Crown, and in 
 three years reduced their annual income from £2ij,QOO 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 ex- 
 ceeded the rent-roll of a squire.^ To preserve what still 
 remained, an Act was passed (i Anne, c. 8, s. 5) which, 
 after sadly reciting * that the necessary expenses of sup- 
 porting the Crown, or the greater part of them, were for- 
 
 1 Supra, pp. 15, 17. 
 
 2 The Crown lands received some augmentation from forfeitures after the 
 rebellions of 171 5 and 1745 ; but during the first 25 years of Geo. III. they 
 produced a net average rental of little more than £(i,ocG a year. Improved 
 adminibtraticn 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,i6o; in 1820 they actually yielded ;^i 14,852; in 1830 they produced 
 ^373,770 ; and in i8(:)0 they returned an income of ;i^4i6,53o, exceeding the 
 Civil List granted to the Queen. May, Const. Hist. i. 255. 
 
XVII.] sinc6 the Revolution. 74 ^ 
 
 merly 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 strin- 
 gent 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 oi the Norman has once more 
 become th.t folkland of the days of our earliest freedom.' ^ 
 
 This change has been accompanied by the restoration to Private pro- 
 the Crown of a right which it had lost during its uncon- sovereign 
 trolled tenure of the hereditary estates. During the days 
 when the Falkland was really the land of the people, the 
 King, equally with the subject, had enjoyed the right of 
 inheriting, purchasing, devising, and otherwise disposing of 
 lands which were his own private property.^ But when the 
 Kingship had become more strictly hereditary, and the 
 lands of the nation came to be regarded as the 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 re- 
 i-'triction 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.' ^ Accordingly the 
 Sovereign has again been invested with the right of acquir- 
 ing and disposing of private property in the same manner 
 as any other member of the nation.* 
 
 ' Freeman, Growth of Eng. Const, p. 1 34. 
 - Supra, p. 16, lb. n. i. 
 
 ^ Freeman, Growth of Eng. Const, p. 136; and see Allen, Royal Prero- 
 gative, p. 154. 
 
 ^ See 39 & 40 Geo. III. c. 88 ; 4 Geo. IV. c. 18 ; 25 & 26 Vict. c. 37. 
 
 / 
 
742 
 
 Progress of the Constitution 
 
 [Ch. 
 
 (II.) The 
 House of 
 Lords. 
 
 Number of 
 Peers. 
 
 Rapid in- 
 crease under 
 the Stuart 
 kings. 
 
 Addition of 
 1 6 Represen- 
 tative Peers 
 of Scotland 
 in 1707. 
 
 II. The House of Lords. 
 
 Since the Revolution, the House of Peers — the lineal 
 representative of the old Great Councils and the older 
 Witenagemots ^ — 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 Par- 
 liament of 1454, the last held before the outbreak of the 
 Wars of the Roses, the number of lay Peers who attended 
 was 53. In 1485, only 29 received writs of summons to 
 the first Parliament of Henry VII.^ The greatest number 
 summoned by Henry VIII. was 51, 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.^) had been reduced to the number 
 of 26, at which it has ever since remained. 
 
 The four Stuart kings created 193 new Peers, but 
 as during their reigns 99 peerages became extinct, the 
 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 
 further increased in 1707, on the passing of the Act of 
 Union with Scotland, by the addition of 16 Representative 
 Peers from that kingdom, elected at the commencement 
 of every Parliament. This rapid augmentation of the 
 Peerage, but more especially the realization of the power 
 of the Crown to swamp the majority in the Upper House 
 (manifested in 17 11 by Queen Anne's creation of 12 peers 
 in one batch), excited the jealousy of the Lords "* ; and 
 
 ^ Supra^ pp. 236, 238. 
 
 2 Supra, p. 383. 
 
 3 Supra, p. 400, n. i. 
 
 * [The fears to which such a practice might naturally give rise have been 
 felt in much later days. In 1832 the Duke of Wellington wrote to Lord 
 
XVII.] since the Revolution. 743 
 
 this feeling — acting in conjunction with the fear lest the 
 Prince of Wales, who was in opposition to his father, 
 should on coming to the throne make use of his prerogative 
 to overthrow the Whig majority in the Upper House by 
 the creation of Tory peers — induced the Whig ministry Attempts to 
 of Sunderland and Stanhope in 1719 and 1720 to support p"gJ.QgJj^g 
 proposals for the limitation of the Royal prerogative of ^^ ^^'^e^'^i^g 
 creating Peers. With the concurrence of George I., Bills lyigand 
 were introduced, in the former year by the Duke of ^7^°* 
 Somerset, and in the latter by the Duke of Buckingham, 
 providing that, with an exception in favour of Princes of 
 the Blood, the Crown should be restrained from augment- 
 ing the then existing number of 178 peerages by more 
 than 6, although new peerages might be created in the 
 place of any which should become extinct ; and that 25 
 hereditary [Representative] Peers should be substituted for 
 the 16 elective [Representative] Peers of Scotland.^ This 
 
 Lyndhurst, as cited in Sir Theodore Martin's Life of Lord Lyndhurst, Lond. 
 1883, p. 300, n. I, 'They say here that the object of Lord Grey's visit to 
 Brighton is to create peers. If it is so, I am convinced that he will be success- 
 ful and that there is an end to the character and independence of the House of 
 Lords.' The same point is illustrated in Mrs. Hardcastle's Life of Lord 
 Campbell, i. 525, where Lord Campbell writes, ' As I anticipated, the notion 
 of making quant, stiff, of peers won't do. Lord Cawdor, a staunch Reformer, 
 has just said to me, " I shall make no objection to sixty new peers if I can be 
 made a commoner."' Curiously enough, something very like Lord Cawdor's 
 reductio ad absurdufn, as it was no doulDt intended to be, of the proposed 
 action of Lord Grey, is now seriously brought forward by the Earl of Rosebery, 
 under the name of Reform of the Plouse of Lords. — Ed.] 
 
 ^ [The word ' Representative ' has been inserted in the text in order, it is 
 hoped, to make more clear the intention of the Bills, which must have been to 
 substitute for the existing sixteen Elective Representative Peers of Scotland 
 twenty-five Representative Peers with Hereditary seats in the House of Lords as 
 such, and consequently to make the Representation of the Scottish Peerage in the 
 House hereditary in the blood of the Peers chosen under the powers of the 
 Bills, who would thus themselves have been the last Elective Representatives 
 of the Scottish Peerage. This would, of course, have entirely altered the 
 character of the Representation, and would have been at direct variance with 
 the provisions of the Treaty of Union. The expression in the original text 
 here might have been read as importing that the Scottish Peerage was not 
 hereditary, which, of course, was far from being intended by the author. It 
 is suggested elsewhere by the present Editor that the hereditary character of 
 Peerage is shewn by the case of the Scottish and Irish Peerages to be a distinct 
 thing from the hereditary character of seats in the House of Lords, and that 
 some light may possibly thus be thrown on future re-arrangements of the 
 Upper House, in conformity with modern demands for what is called an 
 infusion of fresh blood into that Chamber as a condition of its retention. — Ed. ] 
 
744 Progress of the Constitution [Ch. 
 
 unconstitutional scheme was strongly opposed in the House 
 of Commons by Sir Robert Walpole and others, and finally 
 rejected by a large majority (269 to 177).^ 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,'^ — 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 represen- 
 tatives in the House of Commons, and thus to render 
 possible the smooth and continuous working of our present 
 system of Parliamentary government. 
 Profuse At the accession of George III. the number of peerages 
 
 creation of ^ amounted to only 174, but throughout his long reign new 
 George III. 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 
 Pitt and the of party government ; but the younger William Pitt, 
 eerage. ^^ 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 
 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 in effect, ' to reward eminent 
 merit, to recruit the peerage from the great landowners 
 and other opulent classes, and to render the Crown inde- 
 pendent of factious combinations among the existing peers.* * 
 With this object, while himself disdaining honours, he dis- 
 pensed them to others with the greatest profusion. In 
 
 1 Lord Mahon, Hist, of Eng. i. 530-546. 
 ' Bagehot, Eng. Const. 229. 
 
 ^ Speech on the i6th January, 1789, Cobbett's Pari. Hist, xxvii. 942, 943 
 May, Const. Hist. i. 278. 
 
I 
 
 XVII.] since the Revolution. 745 
 
 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 1 801, 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 long reign of 
 sixty years the actual number of peerages conferred by 
 that King (including 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 
 sentative Peers, elected, not for each Parliament only ^^^^^^^pj;^^^^^ 
 like the Scotch Representative Peers, but for life.^ At of Ireland, 
 
 ^ There were other differences in the mode of treating the Scotch and Irish The Peerages 
 peerages. From the date of the Union with Scotland the Crown has been of Scotlatid 
 debarred from creating any new Scottish peers, but the then existing Peerage ajui Ireland. 
 of Scotland was perpetuated in its integrity. 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 lOO, at which figure it should 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 constituency 
 in Great Britain, but not in Ireland. The Peerage of both Scotland and 
 Ireland has been undergoing a process of gradual absorption into the Peerage 
 of the United Kingdom. ' The inadequacy of the representation of the Scot- 
 tish Peerage (which at the date of the Union was only less numerous by 12 
 than that of England) has since been rectified to a great extent by the admis- 
 sion of Scottish Peers to hereditary seats in the House of Lords of the United 
 Kingdom. There are now no less than 45 Peers of Scotland with such here- 
 ditary seats, and by this process of absorption, as well as by extinctions and 
 dormancies, the number of Peers of Scotland who have not hereditary seats in 
 the House of Lords has been diminished from 154 in 1707, to 34 in 1875. 
 Out of these 34 Scottish Peers 16 have seats as Representative Peers, leaving 
 only 18 without seats in the House of Lords. Of the 45 absorptions, 39 have 
 taken place since the beginning of the present century. At that rate, and with- 
 out taking into account possible extinctions, these 18 Peers may be absorbed in 
 about 35 years' time. "Whenever that event takes place the 16 remaining 
 Scottish Peers, although still technically not embraced in the Peerage of the 
 United Kingdom, would to all intents and purposes be included therein ; and, 
 instead of going through the farce of self-election, would, doubtless, be created 
 hereditary Peers of Parliament. . . . The Peerage of Ireland, which in 1801 
 numbered 234, has been reduced by extinctions, and notwithstanding the 
 creation of 19 post- Union Peers, to 185. Of these, no less than 81 arc now 
 
ja6 Progress of the Constitution [Ch. 
 
 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. But on the disestabHshment of the Church 
 of Ireland in 1869, the Irish Bishops lost their seats in 
 Parliament.^ 
 
 Peers of the United Kingdom. Of the remaining 104, who are solely Peers of 
 Ireland, 28 are Representative Peers, thus leaving 76 without seats in the 
 House of Lords. Since the Union there have been 66 extinctions, in addition 
 to the 81 absorptions into the Peerage of the United Kingdom. If the same 
 average rates of extinction and absorption should continue, the 76 Peerages 
 now without seats may be expected to be extinguished or absorbed in about 39 
 years. ... It is as a means of perfecting the National and Representative 
 character of the House of Lords, and of consummating the Parliamentary 
 incorporation" of the three United Kingdoms, that a measure for accelerating 
 the gradual absorption of the Scotch and Irish Peerages into the Peerage of 
 the United Kingdom, deserves the support of the National Parliament. But 
 the point of greatest urgency at the present time is to put a stop to the creation 
 of any fresh Irish Peerages, so as to allow the normal operation of extinctions, 
 and absorptions to continue to produce its natural effect.' Laiv Magazine and 
 Review, No. ccxx., May, 1876, art. 'The Representative Peerage of Scotland 
 and Ireland.' By T. P. Taswell-Langmead. [This question had also engaged 
 the serious attention of the late Earl of Crawford and Balcarres, who, in 1874, on 
 the occasion of the appointment of a Select Committee of the House of Lords to 
 report upon ' ' the state of the Representative Peerage of Scotland and Ireland 
 and the laws relating thereto," printed a memoir on the subject, which he cir- 
 culated privately among his brother Peers and others, and of which he kindly 
 gave the present Editor a copy. Both schemes have the defect, as it appears 
 to us, of not taking into account the alteration in numbers which would be 
 effected in the Scottish' and Irish Peerages by the revival of dormant titles and 
 the reversal of attainders. The Earl of Crawford, dealing only with actual 
 holders of Scottish and Irish Peerages, expressly excluded dormant titles from 
 his view, and for the purposes of his scheme this included forfeited titles. 
 Taswell-Langmead, it is believed, simply passed them by, without giving a 
 thought to either case, probably as not seeming to him to be within the range 
 of 'practical politics.' But a claim to a dormant Scottish or Irish peerage 
 may, ex hypothesis be established at any moment ; and it is always possible 
 that an Act may be passed to reverse a particular attainder. It would have 
 been more satisfactory, therefore, to have had these further questions con- 
 sidered by two such specially competent authorities. It seems difficult to 
 justify the continued detention ' in shade' (to adapt a well-known simile used 
 by Lord Crawford) of so many illustrious titles, which the student of history 
 may be excused for wishing to see once more brought out into the glad ' sun- 
 shine' of political life. — Ed.] 
 
 ^ 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 Plouse should take place (10 & ii Vict., c. 108). The 
 two Archbishops, and the Bishops of London, Durham, and Winchester, have 
 always a right to sit in Parliament, but the bishop last elected to any other see 
 (except Sodor and Man, whose bishop is in no case a lord of Parliament) 
 cannot claim a seat until another vacancy has occurred. May, Const. Hist. i. 
 301 ; Stephen, Com. (5th ed.) iii. 10. [The case of the Bishop of Sodor and 
 
XVII. ] since the Revolution, 747 
 
 The vast increase in the Peerage under George III. Changes in 
 affected not merely the numbers but the whole character and compo- 
 of the House of Lords. ' Up to this time/ observes a Hlu^e^'of ^^ 
 recent historian,^ ' it had been a small assembly of great Lords. 
 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 his 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 representa- 
 tive of the great estates and great fortunes which the vast 
 increase of English wealth was building up. For the first 
 time, too, in our history, it became the distinctly con- 
 servative 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 practically 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 practically 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 government. On the other hand, the larger 
 number of its members has rendered the House more 
 responsive to public opinion, when public opinion is 
 strongly pronounced ; and the political tact which is 
 inherent in great aristocratic assemblies has hitherto pre- 
 vented 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 
 
 Man is peculiar, but the statement that he is " in no case a lord of Parliament " 
 is perhaps too strong. There is probably no exact technical language suited to 
 his position, the result, no doubt, of the continued separate identity of the 
 Kingdom of Man, and of its former Ecclesiastical relations with Scotland and 
 Norway. The Bishop, we apprehend, was always a Baron of the Kingdom of 
 Man. — Ed.] 
 
 ^ J. R. Green, Short Hist, of Eng. People, p. 792. 
 
748 
 
 Progress of the Constitution 
 
 [Ch. 
 
 rolilical 
 position of 
 the House 
 of Lords. 
 
 Determined 
 opposition of 
 the Lords to 
 the Reform 
 Bills of 1 83 1 
 and 1832 
 
 popularity of the House of Lords with the mass of the 
 people. The large number of its members, and the con- 
 stant 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, 
 and the more representative character which it has ac- 
 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 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 unequivocally 
 expressed.^ 
 
 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 
 
 * 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 impose a salutary obstacle to 
 rash and inconsiderate legislation ; it is to protect the people from the conse- 
 quences of their own imprudence. It never has been the course of this House 
 to resist a continued and deliberately expressed public opinion. Your lord- 
 ships 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, speak- 
 ing 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 undi- 
 gested 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, determined, persevering stand against the opinion of the other House of 
 Parliament, 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. 176b.) 
 
XVII.] . since the Revolution, 749 
 
 Commons, and the people, may be said to have been 
 definitely settled by the result of the memorable struggle 
 with the Upper House in 1831 and 1832 on the passing 
 of the Reform Bill. After sixteen Peers had been created 
 to assist the progress of the measure, the continued oppo- 
 sition of the House of Lords was at length overcome by overcome by 
 the private persuasions of the King, and the knowledge crLtTonTf^ 
 that he had consented to his Ministers' request for power peers ; 
 to create a sufficient number of Peers to ensure a 
 majority.^ 
 
 The threatened creation of Peers was denounced at the which is de- 
 time by the Duke of Wellington and the Tory party unconstitu- 
 generally as * an unconstitutional exercise of the pre- tional. 
 rop-ative ; ' but it was admirably answered by Earl Grey : ^arl Greys 
 
 => ' J J J vindication 
 
 'I ask what would be the consequences if we were to of the 
 suppose that such a prerogative did not exist, or could not creation 
 be constitutionally exercised t 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 control 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 in this House should have the power of acting 
 adversely to the Crown and the Commons, and was de- 
 termined 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 
 
 ^ ' The King grants permission to Earl Grey, and to his Chancellor, Lord 
 Brougham, to create such a number of Peers as will be sufficient to ensure the 
 passing of the Reform Bill, — first calling up Peers' eldest sons. William, R. 
 Windsor, May 17th, 1832.' Roebuck, Hist, of the Whig Ministry, ii. 331- 
 333. 
 
750 Progress of the Constitution [Ch. 
 
 Commons, but a House of Lords — a separate oligarchy — 
 governing absolutely the others.' ^ 
 An extra- \,^ its practical aspect, an extraordinary creation of 
 
 ordinary -iTTrTi 
 
 creation of Peers IS to the House of Lords what a dissolution is to 
 vaient^to^a ^^ House of Commons : and although such a creation 
 dissolution, ought never to be made use of except in the greatest emer- 
 gency, its use in such an emergency is not only constitu- 
 tional, but essential to the safety of the Constitution itself.^ 
 Political The political weight of the Upper House has been to 
 
 the Peers some extent injuriously affected by the indifference to 
 affected by public business^ displayed (though with many brilliant 
 attendance exceptions) by the great body of its members, and by 
 rencrto^ ^" ^^^^^ scanty attendance, favoured by the rule which re- 
 business, quires only three peers to make a quorum, and by the 
 practice of giving proxies. By a resolution of the House, 
 Proxies dis- in 1 868, this latter practice has been advantageously 
 1868.''"^'^' discontinued ; but the attempts made, in 1855 by the 
 Attempts to Crown,* and in the following year by Bill founded on 
 revive Life- ^he recommendation of a committee of the Lords, to 
 
 Peerages. ' 
 
 increase the critical power and representative character of 
 
 the Upper House by calling up men of ability as life-peers, 
 
 were unfortunately defeated.^ 
 
 1 Hansard, Deb. 3rd ser. xii. 1006 (May 17, 1832). 
 
 2 See May, Const. Hist, i. 315. 
 
 •'' [This allegation of ' indifference to public business ' seems scarcely 
 warranted by the facts during the long and stormy controversies which have 
 agitated both Houses, since the author's death, subsequently to the last change 
 of Ministry. The Debates in the House of Lords on the Irish Question, the 
 pivot on which the agitation has mainly turned, have been frequently commented 
 upon by the Press as contrasting favourably for grasp of the real issues, and 
 also, which is by no means the least praise, in these days of all-night sittings 
 and obstruction in the Commons, for their business-like brevity. Except 
 among those who can see nothing good in the Upper House, the general 
 attitude recently held by the House of Lords has probably given it a firmer 
 hold on the Public mind as a Second Chamber of value to the Constitution 
 than it perhaps had when Taswell-Langmead wrote. During former critical 
 periods in the century, moreover, members of the Lower House, who were on 
 the side of Reform found themselves able to praise the * great talent ' of the 
 Lords in debate, as may be seen in the Life of Lord Catnpbell, by the Hon. 
 Mrs. Hardcastle. Lond. 1881, pp. 525-6, in the account of the discussion of 
 the Reform Bill, 1831. On this occasion, Lord Campbell's opinion of the 
 character of the debates in the Lords was clearly much higher than that 
 which he had of the debates in the Commons. And his witness is evidently 
 impartial. — Ed.] ^ Supra, p. 240, n. 2. 
 
 » [Although Peerages for life, to nomine, are probably still not viewed very 
 
xviL] smce the Revolution, - 751 
 
 III. The House of Commons. 
 Like the House of Lords, the House of Commons has (ill.) The 
 also undergone very important changes in its numbers, commons, 
 its composition, and its political influence. In the year 
 1295, the date of the perfect constitution of the national 
 Parliament, under Edward L,^ the members of the Lower Number of 
 House numbered 274, comprising 74 knights of the shire, 
 and 200 citizens and burgesses. Under Edward HI. and his 
 three immediate successors the number of the burgesses 
 was about 180, fluctuating in difl"erent Parliaments accord- 
 ing to the negligence or partiality of the Sheriff's in omit- 
 ting 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 sum- 
 moned to return representatives, and at the accession 
 of Henry VHL we find in cities and boroughs (all of 
 
 favourably by the Lords, the principle has been practically conceded in the 
 creation of Lords of Appeal, with seats for life, technically intended as Law Lords 
 to help the Upper House with its Scottish and Irish Appeal business. The high 
 eminence of such men as Lord Blackburn, Lord O'Hagan, and others who 
 have been so promoted can only reflect fresh dignity upon the House which 
 they have adorned, and may pave the way to wider measures in this direction, 
 if such should yet appear to be needed. It would seem that there is in this 
 country some confusion between the principle of Hereditary Titles and the 
 Hereditary character of seats in the Upper House. No doubt every Peer is a 
 potential counsellor of the Sovereign, and possesses a theoretical right of access 
 to the Sovereign for the purpose of giving counsel. But between this right in 
 J>oss e,a.nd a hereditary seat m esse, a distinction might conceivably be drawn. 
 It seems even possible that if the invasion of the hereditary character of the 
 seat involved in the creation of Life Peerages should continue to be held as 
 objectionable in the Future as it was in the Past by Lord Lyndhurst and others, 
 in the Wensleydale case, a modus vivendi might be arrived at by means either 
 of election or selection, or a combination of the two. In several continental 
 monarchies, such as Austria and Italy, the Senate o.r Herren Haus is partly 
 recruited from members of Noble Houses, enjoying Hereditary Titles which, 
 however, do not give a right to a Hereditary seat in the Upper Chamber. 
 There seems to be less clumsiness about this solution of the problem than 
 there is in our present creation of Lords of Appeal who, not being, it is appre- 
 hended, technically ennobled in blood, would in strictness not be triable by 
 the Lords for any offence for which a Hereditary Peer would be so triable. It 
 may even perhaps be doubted how far such Lords could claim any of the 
 ordinary privileges of Peerage, and so anomalous a position would probably 
 not have been tolerated or even devised in a country less full of Constitutional 
 anomalies and antinomies than our own. — Ed.] 
 1 Supra, pp. 258, 273. 
 
752 Progress of the Constitution [Cii. 
 
 which retained the 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,^ 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.^ Between the reigns of Henry VHI. 
 and Charles H. no less than 180 Members were added 
 to the House by Royal charter alone.^ The borough of 
 Newark, which received the Parliamentary franchise by 
 Royal Charter under Charles H., was the last instance of 
 its kind. The House of Commons took the issue of writs 
 into its own hands ; and no new borough was created in 
 England or Wales until the Reform Act of 1832. At the 
 date of the Union with Scotland the number of Members 
 was 513. The Act of Union (6 Anne, c. 7) added 45 
 representatives of that kingdom ; and the Act of Union 
 with Ireland in 1800 (39 & 40 Geo. III. c. 67) made a 
 further addition to the House of 100 Irish members. The 
 proportional representation of the three Kingdoms has since 
 been a little varied, Scotland having [,1890, 72 members, 
 and Ireland 103] ; but the total number of Members has 
 remained nearly the same. In 1879, owing to the dis- 
 franchisement of certain boroughs for corrupt practices, it 
 stood at the slightly reduced figure of 650 [,1890, 670].* 
 
 1 Supra, p. 401. 
 
 2 Siit>ra, p 384. 
 
 3 Glanville's Reports, cii. ; May, Const. Hist. i. 329. In the reign of 
 James I. the Commons, out of favour to popular rights, resolved that every 
 town which had at any time returned members to Parliament was entitled to a 
 writ as a matter of course ; and by virtue of this resolution fifteen boroughs 
 regained the Parliamentary franchise under James and Charles I. In 1673 
 the County Palatine and City of Durham were for the first time admitted to the 
 franchise l)y 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. Hallam, 
 Const. Hist. iii. 39. 
 
 "• [Since the third edition went to press, considerable changes have been 
 effected in the way of Redistribution of vSeats, aswell as of extension of the 
 Franchise. The principle of the Redistribution of 1884-5 's descril)ed in the 
 Edinburgh Review, No. 329, for Jan. 1885, as the 'sub-division of large 
 
XVII.] since the Revolution, 753 
 
 For some time after its establishment, the Representative Defects of 
 system, though never aiming at theoretical perfection, had ggntaUvJ^" 
 been practically efficient. The knights of the shire and system. 
 the burgesses who sat in the Parliaments of the 1 3th and 
 14th centuries really 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 Repre- 
 sentative character. The inequalities in the representation 
 which in course of time naturally grew up, through the 
 simultaneous decay of ancient towns and rise into com- 
 mercial importance of what had been once mere agricul- 
 tural villages, were allowed to go on unheeded. Many new 
 boroughs were, indeed, as we have seen, enfranchised by 
 Royal charter between the reigns of Henry VHI. and 
 Charles II. ; but they were for the most part places of no 
 special importance or size, and were, in nearly every in- 
 stance, endowed with the privilege of returning members 
 to Parliament for the express purpose of adding, as nomi- 
 nation boroughs, to the power of the Crown in the House 
 of Commons. In 1653, Cromwell made a statesmanlike 
 effort to remedy the evil by disfranchising many small 
 boroughs, giving members to Manchester, Leeds, and Hali- 
 
 constituencies,' and the 'adoption of single representatives, as far as practicable, 
 for each electoral division.* That a considerable change will be wrought in 
 some respects seems to be beyond question. When we are told in the Review 
 cited above, that the * line of distinction ' is effaced, for Parliamentary pur- 
 poses, between boroughs and counties, we are surely brought face to face with 
 a substantially new state of affairs in the relation of the House of Commons to 
 the Nation. It is said that subdivision will check organisations of the 
 nature of the * Caucus.' It remains to be seen whether this view is more than 
 an amiable suggestion, by way of comforting those, on either side, who do not 
 like such organisations. It is also said that no disfranchisement of boroughs 
 really takes place under the new Act. The Edinburgh Review {loc. cit.)^ 
 alluding to the 'disfranchisement, as it is termed,' of 79 boroughs returning 88 
 members, says, * these boroughs are not in realityidisfranchised at all ; they are 
 unite i to elec oral divisions of the vicinity, which will increase their importance, 
 and receive from the principal towns a local name.' This may seem a some- 
 what curious mode of increasing the importance of a borough constituency. 
 The total number of members to be returned to the House of Commons under 
 the new legislation has been raised to 670. — Ed.] 
 
 C.H. 3 C 
 
754 Progress of the Constitution [Ch. 
 
 fax, and increasing the number of County members ; but 
 his reforms, though characterised by Clarendon as ' a war- 
 rantable alteration, and fit to be made in better times/ 
 were cancelled at the Restoration ; and thenceforth, until 
 the reign of George III., there was no further attempt to 
 check the ever-growing abuses of the Representative system. 
 That system had become thoroughly venal and corrupt. 
 Most of the English boroughs — with a suffrage generally 
 restricted to close corporations or to those bodies and their 
 nominees, the freemen ^ — might be roughly divided intc> 
 those which were sold by their ' patrons,' the great territo- 
 rial proprietors, and those which sold themselves. Of the re- 
 mainder, while many were under the influence of the Crown,, 
 and obediently returned the Crown's nominees, others were 
 owned by patrons who exercised their powers of nomina- 
 tion honestly and conscientiously, and did a service to the 
 country by introducing into the House of Commons young 
 men of ability and promise, who, lacking money or con- 
 nexions, could not otherwise have found a seat. But the 
 great majority of boroughs were venal.^ Both the Crown and 
 
 ^ Supra, p. 364. 
 
 2 [How late this venality lasted is shewn by incidental descriptions of 
 Election proceedings as late as 1826, in the Life of Lord Canipbell, by Hon. 
 Mrs. Hardcastle, i. 432, describing the poll for Stafford when the seat was 
 contested, and Lord Campbell wrote of himself as 'defeated but not disgraced.* 
 The electors polled alphabetically, and when letter N was got through, 
 Campbell was only six behind. 'Now,' he writes to his brother George, 
 * began the struggle of corruption. You know that every vote given against 
 me was to be paid for after the election, but Benson (one of the candidates) 
 would not trust to this. He sent his agents about the town, openly offering 
 money to be instantly paid to those who would turn from me.' Again, on 
 p. 435, speaking with reference to an election at Weymouth, Lord Camp- 
 bell says, ' When we harp upon the defects of the Reform Bill, we are too apt 
 to forget the abuses which it has corrected.' Referring to the same subject, 
 and to the case of Stafford, Lord Campbell writes, Life, p. 514, 'If the laws 
 (on Bribery and Corruption) remain as they are, there will be more corruption 
 than ever at such a place as Stafford ; for this being the only class of boroughs 
 which may be bought, the price is likely to rise enormously.' The titles to a 
 vote in boroughs before the passing of the Reform Bill were sometimes most 
 extraordinary, and obviously gave great facilities for the creation of what have 
 in recent times been called 'faggot votes.' Thus Lord Campbell tells us that 
 at Weymouth, in 1826, ' the chief right of voting was in the title to any portion 
 of certain ancient rents within the borough, and several voted as entitled to an 
 undivided twentieth part of sixpence. The conveyances to these qualifications 
 were to be strictly investigated, long arguments were addressed to the returnini^ 
 oflficer, and the decision of a single vote . . . sometimes lasted a whole day.* 
 Life, i. 435.— Ed.] 
 
XVII.] since the Revolution, 755 
 
 the Ministers of the day, either acting in unison, or, as was 
 frequently the case under George III., in opposition to one 
 another, bought seats aHke of patrons and constituencies-^ 
 titles, pensions, or hard cash satisfying the varying wants 
 of all. The market for seats was further enlarged and 
 their price enhanced by the competition of rich traders, 
 more especially of the ' Nabobs,' who had returned from the 
 Indies with immense fortunes, and who anxiously sought 
 entrance into the House of Commons as the avenue to 
 social distinction or extended commercial advantage. The 
 published correspondence and memoirs of men of the time 
 attest the wholesale and unblushing bribery and barter of 
 boroughs which prevailed. A few typical instances will 
 serve as illustrations. In 1767, the borough of Ludgers- 
 hall was sold by its proprietor, George Selwyn, for ^9000.^ 
 In 1807, ;^ 10,000 was offered for the two seats of West- 
 bury, but was refused as inadequate by the trustees for the 
 creditor of the late proprietor, Lord Abingdon.^ Sales by 
 patrons were generally passed over without animadversion, 
 but some of the attempts of corporations or constituencies 
 to sell the seats at their disposal excited occasional indig- 
 nation, and received a mild measure of punishment. In 
 1768, the Corporation of Oxford took advantage of the 
 General Election to demand of the sitting Members, Sir 
 Thomas Stapleton and the Hon. Robert Lee, as the 
 consideration for returning them again, the sum of ^^5760, 
 which was required to pay off the municipal debts. The 
 request was not only refused, but reported to the House of 
 Commons, who committed the Mayor and ten of the Alder- 
 men to Newgate, whence they were spon discharged after a 
 reprimand from the Speaker. But with a sturdy determi- 
 nation to pay the Corporation debts out of any other pockets 
 rather than their own, the worthy Mayor and Aldermen, 
 while still in Newgate, completed a sale of the two seats, 
 already partly negotiated, to the Duke of Marlborough 
 
 ^ Letters of Lord Chesterfield to his Son, iv. 269. 
 2 Life of Sir Samuel Romilly, ii, 200. 
 
 3 C 2 
 
75^ Progress of the ConstittcHon [Cm. 
 
 and the Earl of Abingdon ; while the Town-clerk carried 
 off the corporation books so as to prevent any evidence of 
 tjie transaction from becoming public.^ But perhaps the 
 political morality of the times may be best exemplified by 
 the borough of Sudbury, which without any hesitation or 
 attempt at decent disguise, shamelessly advertised itself for 
 sale to the highest bidder.^ 
 
 In the larger boroughs and seaports the Government not 
 only had recourse to money-bribes, but ensured the return 
 of their candidates by the wholesale distribution of appoint- 
 ments in the Customs and Excise. In 1782, when Lord 
 Rockingham carried a measure for the disfranchisement of 
 revenue officers, no less than 11,500 were found to be 
 electors, and 70 elections were said to depend mainly on 
 their votes.^ 
 
 The County constituencies of forty-shilling freeholders, 
 although limited and unequal, were less corrupt and more 
 independent than the voters in Boroughs ; but they were 
 practically at the disposal of the great nobles and local 
 landowners. Their exclusive possession by the territorial 
 aristocracy was further protected by the enormous expense 
 of a contest, which, in one instance, that of Yorkshire, in 
 1807, amounted to no less a sum than ;^ 200,000, as the 
 joint expenses of two rival candidates, Lord Milton and 
 Mr. Lascelles.* 
 Scottish The representation of the Scotch counties and boroughs 
 
 Uon.^^^" ^' "^''^^ ^^ ^v^ri a worse condition than the English. In every 
 Borough in Scotland the franchise was vested in a self- 
 elected corporation ; while the County franchise belonged 
 exclusively to the owners of feudal ' superiorities/ of the 
 
 1 Cobbett's Pari. Hist. xvi. 397-402; Horace Walpole, Memoirs of Geo. IH. 
 
 iii. 153- 
 
 ^ Horace Walpole, Mem. of the Reign of Geo. TH. i. 42. 
 
 ' Cobbett's Pari. Hist, xxiii. loi. Lord Rockingham said, in one borough 
 having 500 voters, 120 had been appointed to places under Government, 
 through the influence of one of their number who happened to be a friend of 
 the First Lord of the Treasury. Ibid. The electoral disabilities of revenue 
 officers, no longer necessary in the enlarged constituencies created by the Reform 
 Act of 1867, were removed by 31 & 32 Vict. c. 73 and 37 and 38 Vict. c. 22. 
 
 * Life of Wilberforce, iii. 335. 
 
XVII.] since the Revolution. 757 
 
 annual value of ;^ 400, who were not necessarily either land 
 owners or residents in their counties. With a population of 
 over 2,000,000, the total number of Scotch County electors 
 in 1823 was under 3000 ; one county, Cromarty, having only 
 nine. It was stated by the Lord Advocate in 1831, that 
 at an election then within living memory, for the county of 
 Bute — which had not more than twenty-one electors, of 
 whom but one was resident — that resident, together with 
 the Sheriff and the returning officer, constituted the meeting; 
 and having taken the chair, moved and seconded his own 
 nomination, put the question to the vote, and elected 
 himself.^ 
 
 In Ireland, most of the Boroughs, from causes similar to Insh repre 
 those which affected the Boroughs of England and Scot- 
 land, were equally subject to the patronage of noblemen 
 and landowners. The Counties possessed, indeed, a com- 
 paratively popular constituency, composed of the forty- 
 shilling freeholders, whose numbers had been multiplied 
 alike by the action of the Irish land laws and of the Pro- 
 testant landowners who favoured subdivision with a view to 
 extending their political influence. But though relatively 
 far more numerous than the English County electors, the 
 Irish peasant proprietors were also far less independent ; 
 so that the Union with Great Britain in 1801 served only 
 to add to the united Parliament a further mass of nominee 
 members.'^ 
 
 In 1793, when the members of the House of Commons 
 numbered 558, a majority of 354 was nominally returned 
 by * less than 15,000 electors,' but in reality on the nomina- 
 tion or recommendation of the Government and 197 private 
 
 ^ Hansard, vii, 529 ; May, Const. Hist. i. 303. [In the Edinburgh Almanack 
 for 18 1 3 (Oliver & Boyd), there are eighteen freeholders on the Roll for Buteshire, 
 and twenty-four for Caithness-shire, the Commissioners for those shires being 
 returned alternately before 1832. No mention is made of this story in the 
 History of the County of Bute, by J. Eaton Reid, Glasgow, 1864. In Allen's 
 Royal Prerogative, 1849, the story is told, in a letter from Sir James Gibson- 
 Craig, Bart., of the Sheriff of Bute, afterwards Lord Bannatyne, who was 
 raised to the Scottish Bench in 1799, as the ' only freeholder present.' — Ed.] 
 
 " Wakefield, Statistical and Political Account of Ireland, ii. 299 ; Oldfield, 
 Representative Hist. vi. 209 et seq. ; May, Const. Hist. i. 359. 
 
Members. 
 
 758 P7'ogress of the Constitution [Cn. 
 
 patrons.^ The Union with Ireland in 1801 added 100 
 Members to the House, of whom 71 were nominated by 
 56 individuals. In 18 16, Dr. Oldfield, in his 'Representa- 
 tive History/ gave elaborate details showing that, of the 
 658 members, 487 were then returned by the nomination 
 of the Government and 267 private patrons, of whom 144 
 were Peers.^ Well might the younger Pitt exclaim : ' This 
 House is not the representative of the people of Great 
 Britain ; it is the representative of nominal boroughs, of 
 ruined and exterminated towns, of noble families, of 
 wealthy individuals, of foreign potentates.' 
 Bribery of A House of Commons thus tainted at its source was 
 peculiarly open to the attacks of political corruption. 
 George III. personally examined the voting list, and 
 awarded honours, places, and pensions, or took means to 
 signify his displeasure, in accordance with the votes of 
 individual Members. The great number of valuable 
 appointments tenable by Members of Parliament operated 
 like prizes in a lottery. 'An interested man,' said Lord 
 Rockingham, 'purchases a seat upon the same principle 
 as a person buys a lottery-ticket'^ But direct gifts of 
 money to Members were also freely resorted to by the 
 Ministers. Commenced under Charles II., and continued 
 under William III., this method of 'managing the House 
 of Commons * was reduced to a system during the long 
 tenure of office by Sir Robert Walpole. It continued to 
 flourish during the remainder of George II.'s reign, and 
 under George III. was not only adopted and expanded 
 by Lord Bute, but received a new and most pernicious 
 development in the form of issuing public loans and lotteries 
 on extravagantly easy terms, and rewarding the supporters 
 of the Government by a distribution of the shares, which 
 they were able to sell at once at a high premium.* In 
 
 * Annual Register for 1793, App. to Chronicle, pp. 83-99. 
 ' Oldfield's Representative Hist. vi. 285-3CX). 
 
 ' Earl of Albemarle's Rockingham Memoirs, ii. 399. 
 
 * Cobbett's Pari. Hist. xv. 1305 ; Lord Mahon, Hist, of Eng. v. 20; Lecky, 
 Hist, of Eng. i. 368. 
 
XVII.] since the Revolution. 759 
 
 order to carry the preliminaries of the Peace of Paris in 
 Dec. 1762, an office was publicly opened at the Treasury 
 for the bribery of Members, and the sum of ;^25,ooo was 
 afterwards stated by the Secretary of the Treasury to have 
 been expended in a single day in bribes, descending so low 
 as a ^200 bank-bill.^ 
 
 The glaring defects of the Representative system, — the de- Parliameu- 
 cayed and rotten boroughs the private property of noblemen, ^^^ reform 
 the close corporations openly selling the seats at their dis- by Lord 
 posal to Members who in turn sold their own Parliamentary j^ ^^766"^ 
 votes, and the existence of great manufacturing cities distin- 
 guished by their wealth, industry, and intelligence, and yet 
 possessing no right of sending representatives to Parlia- 
 ment — led Lord Chatham (then Mr. Pitt) as early as 1766 
 to advocate Parliamentary reform. ' Before the end of this 
 century,' he remarked to the Earl of Buchan, ' either the Par- 
 liament will reform itself from within, or be reformed with a 
 vengeance from without' In the House he denounced the 
 Borough representation as ' the rotten part of our constitu- 
 tion. It cannot continue the century ; if it does not drop, 
 it must be amputated.' ^ Ten years later, in 1776, the Wilkes' 
 notorious John Wilkes introduced a comprehensive scheme ^^^^""^ ^^ 
 of reform in a Bill proposing to give additional Members 1776. 
 to the Metropolis and to Middlesex, Yorkshire, and other 
 
 ^ Horace Walpole, Memoirs of Geo. III. i. 199. The following remark- 
 able letter from Lord Saye and Sele to Mr. G. Grenville, shows that even to 
 members of the House of Lords money bribes were offered by Ministers without 
 any sense, on either side, of dishonour or insult : 
 
 'London, November 26, 1763. 
 'Honoured Sir, — I am very much obliged to you for that freedom of con- 
 verse you this morning indulged me in, which I prize more than the lucrative 
 advantage I then received. To shew the sincerity of my words (pardon, Sir, 
 the perhaps over-niceness of my disposition) I return enclosed the bill for ;i^300 
 you favoured me with, as good manners would not permit my refusal of it, when 
 tendered by you. Your much obliged and most obedient servant, 
 
 'Say and Sele. 
 
 * P. As a free horse wants no spur, so I stand in need of no inducement 
 or douceur to lend my small assistance to the King or his friends in the 
 present Administration.' Grenville Correspondence, iii. 145-146, «. [It seems 
 only fair to Lord Saye and Sele to remark that his language does read as 
 though intended to convey a covert rebuke of the proffered ' douceur. ' — Ed. ] 
 
 2 Debates on the Address, Jan. 1766; Cobbett's Pari. Hist. xvi. 100; xvii. 223. 
 
760 Progress of the Co7istitution [Ch. 
 
 large counties ; to disfranchise the rotten boroughs and 
 add the electors to the County constituency ; and lastly, to 
 enfranchise Manchester, Leeds, Sheffield, Birmingham, and 
 ' other rich populous trading towns.' ' His scheme, indeed,' 
 remarks Sir Erskine May, ' comprised all the leading 
 principles of Parliamentary reform which were advocated 
 for the next fifty years without success, and have been sanc- 
 tioned within our own time.' ^ After some further abortive 
 attempts at reform — of which the most noteworthy, on 
 account of its extreme radicalism, was that of the Duke of 
 Richmond, who in 1780 introduced a Bill to establish 
 annual Parliaments, universal suffrage, and equal electoral 
 districts — the subject was taken up by the younger Pitt in 
 Mr. Pin's ^7^2 and 1783. On the 7th of May, 1782, when Chancellor 
 advocacy of of the Exchequer in Lord Rockingham's Administration, 
 1782-85. Pitt moved for the appointment of a Committee to enquire 
 into the state of the representation. But the motion was 
 rejected by 161 votes to 141. Exactly a year later, on the 
 7th of May, 1783, being then in opposition to the Coalition 
 Ministry, he submitted three Resolutions affirming (i) the 
 necessity of preventing bribery and expense at elections ; 
 (2) the expediency of disfranchising any borough whenever 
 the majority of its voters should be convicted of corrup- 
 tion, and of transferring the unbribed minority to the 
 County constituency ; and (3), the desirability of increasing 
 the number of county and metropolitan Members. These 
 Resolutions were however negatived by 293 votes to 149.* 
 Two years later, when Prime Minister, Pitt again brought 
 forward the question, this time by moving, on the i8th of 
 April, 1785, for leave to introduce a Bill *to amend the re- 
 presentation of the people of England in Parliament.' He 
 proposed the disfranchisement of 36 decayed boroughs, 
 and the transfer of their 72 Members to the Counties and 
 the [Capital] — the County constituencies being at the 
 same time enlarged by the admission of copyholders. The 
 
 ' May, Const. Hist. i. 394. 
 
 •' Annual Reg. 1782, Hist. p. i8i j 1783, Hist. p. 176. 
 
XVII.] since the Revolution, 761 
 
 seats of four other small boroughs were to be obtained by 
 purchase and bestowed upon populous towns ; while ten 
 close corporations were to be similarly induced to surrender 
 their exclusive rights for the benefit of their fellow- 
 townsmen. The Bill was, however, purely permissive in 
 character. No boroughs were to be disfranchised unless 
 with the consent of the proprietors ; and as compensation 
 to them the sum of ;^ 1,000,000 was to be immediately set 
 aside to accumulate at compound interest until it should 
 become an irresistible bait.^ This extraordinary proposal, 
 which would have committed the State to the recognition 
 of a saleable property in Borough constituencies, was ad- 
 mitted by its author to be ' a tender part,' yet, in his opinion, 
 * a necessary evil, if any reform was to take place.' But the 
 time was not yet ripe for Parliamentary reform. The 
 House of Commons being indifferent to it, the public gene- 
 rally apathetic, and George III. distinctly adverse,^ Pitt's 
 Reform Bill was negatived 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. 
 
 After the conclusion of the war in 18 15 the question of Theques- 
 
 f. • 1 '-T-1 r J -i. -J tiori revived 
 
 reform was revived. Thenceforward it was again and ^fter the 
 again brought before Parliament by Sir Francis Burdett, Peace of 
 Lord John Russell, and others, until at length, under the 
 Whig Ministry of Lord Grey (who had advocated the 
 cause of reform for forty years), the Reform Bill — after 
 defeats in both Houses of Parliament, a dissolution, the passing of 
 resignation and recall of the Ministry, and a threatened ^^^^^^^^"^^ 
 creation of peers by the King,^ was passed amidst the 
 
 ^ Annual Reg. 1784- 5, p. 189, and Spencer Walpole, Hist, of Eng. ii. 263. 
 
 * Pitt having written to the King insinuating a fear lest the personal influ- 
 ence of the Crown should be employed to defeat the measure, George replied 
 that ' out of personal regard,' he would ' avoid giving any opinion to anyone 
 on the opening of the door to parliamentary reform, except to him ; ' but that 
 he had ' ever thought it unfortunate that he [Pitt] had early engaged himself 
 in this measure.' Tomline, Life of Pitt, (4th ed.) ii. 40. 
 
 ' Supra, p. 749. [Cf. also Ed.'s n. 4, p. 742, for the Duke of Wellington's 
 view of the ttireatened creation. — Ed.] 
 
762 Progress of the Constitution [Ch. 
 
 greatest popular excitement, and became an Act on the 
 7th of June, 1832. 
 Us principal By this statute — 'the Great Charter of 1832,' as it has 
 juoMsions. i^ggj^ deservedly called — 56 nomination or rotten Boroughs, 
 with less than 2000 inhabitants, and returning in Mem- 
 bers, 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 representation. Forty- 
 three new Boroughs were created, 22 of which, including 
 metropolitan districts, received the privilege 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 ;^io householder 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 leaseholders for terms of years, and of 
 tenants-at-will paying a rent of ;^ 50 a year.^ 
 Scotch Re- In the same session Reform Acts were passed for Scot- 
 i?"^'^^*' ^^"^ ^"^ Ireland. The number of Scotch representatives, 
 fixed by the Act of Union at 45, was increased to 53, of 
 whom 30 were assigned to counties and 23 to cities and 
 burghs. The County franchise was extended to all owners 
 of 'lands, houses, feu duties, or other heritable subjects,' 
 
 ^ [To Mr. Labouchere, M. P. , writing on Democracy in England^ in Forumy 
 N.Y., Jan. 1890, the Reform Act of 1832 appears ' A very incomplete measure. 
 ... In the main the legislature continued to be aristocratic in its composition. 
 Rotten boroughs were swept away, but small and insignificant boroughs still 
 sent members to Parliament. These,' he adds, 'were mostly corrupt,' which 
 seems a somewhat sweeping condemnation of small boroughs after the Reform 
 of 1832. On the other hand, the Edinburgh Review^ Jan., 1890, Art. Life of 
 Lord John Russell, calls it the * greatest constitutional measure of the nine- 
 teenth century.' And, notwithstanding its unavoidably incomplete character, 
 the judgment of the Edinburgh Review is most in accordance, it is believed, 
 with the view generally taken. — Ed.] 
 
 3 2 & 3 Will. IV. c. 45. 
 
XVI [.] since the Revolution. T^'S 
 
 of the yearly value of ;^io, and to certain classes of lease- 
 holders, and the Burgh franchise to all ;^io householders.^ 
 
 In Ireland several rotten Boroughs had been disfran- Irish Reform 
 
 . Act 1%V2 
 
 chised at the time of the Union : the right of election ' 
 was now taken away from Borough corporations, and 
 vested in ;^io householders. The qualification for the 
 County franchise had been raised from 40s. to ;^io free- 
 holds by a measure^ passed at the same time as the Roman 
 Catholic Emancipation Act in 1829, and intended as a 
 protection against the influence of the Roman Catholic 
 priests and agitators, who had ousted the Protestant land- 
 lords of their political influence over the poorer freeholders. 
 By the present Act large additions were made to the County 
 constituencies by the inclusion of certain classes of lease- 
 holders and of ;^io copyholders. The number of Irish 
 representatives, fixed by the Act of Union at 100, was 
 increased to 105.^ 
 
 By the Reform Act of 1867 — passed by Lord Derby's The Reform 
 Conservative Ministry with the aid of the Liberal majority 
 in the House of Commons — a further extension of the 
 electoral franchise in England and Wales was introduced 
 scarcely less important 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 ;^io.* The County occupation fran- 
 chise was reduced to ^12; and 33 seats were withdrawn 
 from English boroughs, 25 of which were transferred to 
 English counties, and the remaining 8 to Scotland and 
 Ireland.^ 
 
 1 2 & 3 Will. IV. c. 65. 
 
 - 10 Geo. IV. c. 8. Repealed by Statute Law Revision Act, 1873. 
 
 3 2 & 3 Will. IV. c. 88. In 1850 the Irish Borough franchise was extended 
 to householders rated at £%^ and the qualification required for the County 
 franchise was also lowered, so as to include the owners of freeholds rated at ;[^5 
 and occupiers rated at £\2 (13 & 14 Vict. c. 69). 
 
 4 Supra, p. 366, «. 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 differins: ^P^"' ^^' 
 
 '^ form AcfJ>, 
 1868. 
 
764 
 
 Progress of the Constitution 
 
 [Ch. 
 
 Rei)resenta- gy the same Act a perfectly new principle, that of the 
 
 tlOn of , . r i.x- ' • .1,- 
 
 minoriiies. Representation of Minorities, was introduced, in a tentative 
 and partial manner, into the representative system. This 
 
 from it in many of their details. In the Scotch counties the ownership fran- 
 chise was reduced to ' lands and heritages ' of the yearly value of ;^5 ; and a 
 £\df occupation franchise established. The Scotch boroughs received a house- 
 hold and a lodger franchise. In Ireland no change was made in the County 
 constituencies, but the Borough franchise was further reduced to a £a^ rating 
 occupation. 31 & 32 Vict. c. 48 ; 31 & 32 Vict. c. 49. 
 
 The following tabular statement, compiled from the Parliamentary Return 
 issued in May, 1879, shows the total number of electors in the counties, cities 
 and boroughs, and universities of 'Ihe United Kingdom then on the Parlia- 
 mentary Register. 
 
 Electors of the United Kingdom. 
 
 England ... 
 Wales ... 
 
 Scotland ... 
 Ireland ... 
 
 Total 
 
 Counties. 
 
 and Boroughs.' Universities. 
 
 Grand Totals. 
 
 816,317 1,496,507 
 67,332 66,812 
 
 13.031 
 
 2,459.999 
 307,941 
 231,289 
 
 883,649 1 1,563,319 
 92,310 204,142 
 
 172,570 i 55.247 
 
 13,031 
 
 11,489 
 
 3.472 
 
 1,148,529 
 
 1,825,708 
 
 27,992 
 
 2,999,229 
 
 In 1868, prior to the operation of the Reform Acts of 1867-8, the total 
 number of electors, in boroughs and counties, of the United Kingdom, did not 
 exceed 1,370, 793- 
 
 In the session of 1879, the House of Commons consisted of 650 members, 
 returned as follows by the three divisions of the United Kingdom : — 
 
 England and Wales. 
 
 52 Counties and Isle of Wight . 
 200 Cities and Boroughs . 
 
 3 Universities . . . . . 
 
 Total of England and Wales 
 
 Scotland. 
 
 .33 Counties . . . . , 
 22 Cities and Rurgh Districts 
 
 4 Universities . . . . . 
 
 Total of Scotland 
 
 Members. 
 187 
 293 
 5 
 485 
 
 32 
 26 
 
 2 
 
 60 
 
 Ireland. 
 
 32 Counties 
 
 33 Cities and Boroughs 
 I University . 
 
 Total of Ireland 
 
 Total of United Kingdom 
 
 64 
 
 39 
 
 2 
 
 105 
 650 
 
xviL] since the Revolution. 7^5 
 
 principle had been embodied in Lord John Russell's 
 abortive Reform Bill of 1854, which proposed to assign 
 three Members to certain counties, and other large places, 
 the electors of which were to be entitled to vote for two only 
 out of the three.^ The city of Manchester, and the boroughs 
 of Liverpool, Birmingham, and Leeds, were now each em- 
 powered to return three Members to Parliament ; and it 
 was declared (sees. 8, 9) that at a contested election for 
 any county or borough represented by three Members, no 
 person should vote for more th'an two candidates, nor in 
 the City of London, which has four Members, for more 
 than three candidates. 
 
 Since the Reform Act of 1832 the attention of Parlia- Suppression 
 ment has been continually directed to the suppression of°j^j\Vtimi- 
 bribery and intimidation at elections. The measures for t\ation at 
 
 . . . f. elections. 
 
 this purpose culmmated m 1872 m the passmg of an 
 experimental Ballot Act (to continue in force till the The Ballot 
 
 Act 187^ 
 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- 
 tions was substituted for the old English system of open 
 voting.^ 
 
 The duration and intermission of Parliament have been Summons, 
 
 - , . - . , . , . . , duration, 
 
 the subject of important legislative enactments in the and inter- 
 period since the Revolution. By the ancient Le^^al doc- mission of 
 
 *^ 1 Parliament. 
 
 trine 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. The Parliament which deposed The Parlia- 
 Richard IL in 1399, was held, by a logical deduction of ^^99. 
 the Constitutional lawyers of that day, to have ceased 
 
 * [On the Representation of Minorities, as well as on University Represen- 
 tation, which has also become a question of the day, see Law Magazine and 
 Review, No. ccl.,'for Nov. I883, and ccli. for Feb. 1884, Art. University 
 Representation, by J. Parker Smith, M.A. Cf. also La Representation Pro- 
 pcrtionnelle. Paris, for a valuable collection of recent studies on this subject, 
 —Ed.] 
 
 ^ 35 & 36 Vict. c. 33. The Universities were excepted. 
 
766 
 
 Progress of the Constitution 
 
 [Ch. 
 
 Convention 
 Parliament 
 of 1660. 
 
 Convention 
 I Parliament 
 of 1688. 
 
 Triennial 
 Act, 1641. 
 
 to exist when Richard ceased to be King ; but as it was 
 not convenient for Henry IV. to summon a new ParHament, 
 an expedient was devised by which, under a transparent 
 legal fiction, the same members who had deposed Richard 
 were assembled again in Parliament under Henry's writs. 
 Nearly three centuries later the Convention Parliament 
 which restored Charles H. 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 Parlia- 
 ment, notwithstanding the want of the king's writ of 
 summons, and as if his Majesty had been present in 
 person at the commencement thereof:'^ 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 H.,- and elected William and Mary, passed an Act 
 indeed, like the Convention of 1660, declaring itself to be 
 a legal Parliament, notwithstanding any defect of form in 
 its summons or otherwise ; ^ but it was no longer thought 
 necessary that its Acts should be confirmed by another 
 Pailiament.^ 
 
 We have seen how the King's prerogative of calling 
 Parliament had been limited under Edward H. and 
 Edward HI. by statutes requiring annual sessions, and 
 under Charles I. by the Triennial Act, passed by the Long 
 Parliament in 1641.^ After the Restoration this Act 
 was repealed, in 1664, by the 'Pensionary Parliament' of 
 
 ^ 12 Car. II. c. I. 
 
 2 Supra, p. 675. 
 
 3 I Will. & Mary, sess. i, c. I. 
 
 ^ * 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 summoned 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. 
 
 '" Supra, pp. 281, 282, 604. 
 
XVII.] since the Revolution. 767 
 
 Charles II. (which was prolonged for nearly eighteen • 
 
 years), but it was at the same time provided by the 
 repealing statute ' that Parliament should not be inter- 
 rupted above three years at the most ; ' ^ and the Bill of 
 Rights declared in October, 1689, that ' Parliament ought 
 to be held frequently.' ^ Only two months later, in 
 Dec. 1689, a Bill for establishing Triennial Parliaments 
 was introduced in the House of Lords. Dropped at the 
 prorogation, it was reintroduced in 1693, and passed both 
 Houses ; but William III. refused his assent. The Com- 
 mons, however, persevered with the project ; and a similar 
 Bill, in the following year, became the Triennial Act of 
 William and Mary, in November, 1694. It provided that Triennial 
 a new Parliament should be called within three years after ^^' ^ ^^' 
 the dissolution of a former one, and the utmost extent of 
 time that any Parliament should be allowed to sit was 
 limited to three years.^ This continued to be the law for 
 two-and-twenty years. But after the suppression of the 
 Rebellion in 171 5, the Whig ministry of George I., still Septennial 
 apprehensive of the machinations of the Jacobites, and ^ ' ^^^ * 
 fearful lest a General Election should endanger the stability 
 of the new dynasty, introduced and carried the Septennial 
 Act of 17 16, which extended the period of Parliamentary 
 duration to seven years.* It is remarkable that the Bill, 
 although specially affecting the constitution of the Com- 
 mons' House, was introduced in the House of Lords, its ^^ / 
 proposer being William, second Duke of Devonshire, whose ^ 
 father had been one of the chief promoters of the Triennial 
 Act of 1694. By passing the Bill without a dissolution, 
 Parliament not only provided for the future, but extended 
 the duration of the existing House of Commons for four 
 years beyond the time for which it had been elected. Such 
 a proceeding, though perfectly legal — for to the authority 
 
 1 16 Car. II. c. I. 
 " Supra, p. 684. 
 
 3 6 Will. & Mary, c. 2. 
 
 4 I Geo. I. c. 38. 
 
 ~?/ 
 
768 Progress of the Constitution [Cn. 
 
 of Parliament there is no limit — had its best justification in 
 the real and pressing danger which then menaced the reign- 
 ing family. The special emergency might indeed have 
 been met by a temporary measure ; but a permanent Act 
 was deemed the safer and more Constitutional course.^ 
 Moreover, there was much to be urged in favour of a 
 change. ' Ever since the Triennial Bill has been enacted,' 
 said Sir Richard Steele, who supported the Septennial 
 measure in the House of Commons, 'the nation has been 
 in a series of contentions ; the first year of a Triennial 
 Parliament has been spent in vindictive decisions and 
 animosities about the late elections ; the second session had 
 entered into business ; the third session has languished 
 in the pursuit of what little was intended to be done 
 in the second ; and the approach of an ensuing election 
 has terrified the members into a servile management, accord- 
 ing as their respective principals were disposed towards 
 the question before them in the House.' Although the 
 Bill was strongly opposed by the Tories in both Houses, it 
 passed its third reading in the Commons with a dissentient 
 minority of only 1 2 1 . Among the most important effects of 
 the extension of the natural duration of Parliaments was a 
 marked increase in the stability and power of the House of 
 Commons, and a strengthening of the influence of the Minis- 
 try. Mr. Speaker Onslow declared that the Septennial Act 
 formed ' the era of the emancipation of the British House of 
 Commons, from its former dependence on the Crown and the 
 House of Lords.' ^ The difference between the position of 
 the Lower House under the Triennial and Septennial Sys- 
 tems is, indeed, strongly brought out by the fact that in the 
 
 * Lord Mahon, Hist, of Eng. i. 301. . 
 
 - Coxe's Life of Sir Robert Walpole, i. 75. [In Edinburgh Review^ Jan. 
 1890, Art. Dernocracy in Stuitzei-land, p, 139, the Reviewer says that 'the 
 Septennial Act saved England from a reaction.' Mr. Labouchere, M.P., on the 
 other hand, writing as the accepted ' leader of the Radical ring of the Liberal 
 party in England,' in the Fofjim, N. Y., Jan. 1890, Art. Democracy in Eng- 
 land, speaks with some appearance of contempt of the Septennial duration of 
 Parliament as the one thing which keeps the present Administration in power. 
 —Ed.] 
 
XVII.] since the Revolution, 7^9 
 
 reign of Anne party leaders, like Harley and St. John, 
 joined the ranks of the Peerage in the very midst of their 
 political careers, while under the Septennial system Sir 
 Robert Walpole designedly confined himself to the House 
 of Commons, and only accepted an earldom from George II. 
 when defeat had closed his long Administration. 
 
 From the reign of George II. down to the reign of Victoria, Attempts to 
 various attempts have been made at different times to repeal jwennial 
 the Septennial Act, and shorten the duration of Parliaments. Act. 
 The great Earl of Chatham, in 1771, 'with the most 
 deliberate and solemn conviction, declared himself a con- 
 vert to Triennial Parliaments.' ^ And so recently as 1849, 
 Mr. Tennyson-D'Eyncourt obtained leave to introduce a 
 Triennial Bill by a majority of five. But more recently, as 
 the operation of an extended suffrage has brought the 
 House of Commons into closer and more sympathetic 
 relations with the mass of the people, the popularity of 
 this question has sensibly declined.^ There is no principle 
 involved in either of the numbers 3 or 7. Any restriction 
 on the duration of Parliaments is but a means to an end — 
 the maintenance of a House of Commons fairly repre- 
 senting the wishes of the Nation, as those wishes periodically 
 change amidst the vicissitudes of Home and Foreign politics. 
 In practice it is found that no Parliament is continued 
 longer than six years ; ^ and, indeed, whatever be the legal 
 
 1 Cobbett's Pari. Hist. xvii. 223. 
 
 2 ' It is a remarkable illustration of the changes that may pass over party 
 warfare, that the Republican Milton at one time advocated the appointment of 
 members for life [in his ' Ready and Easy Way to Establish a Commonwealth '] ; 
 that the Tory Party under Walpole and Pelham advocated triennial, and even 
 annual Parliaments, which afterwards became the watchwords of ihe most 
 extreme radicals ; that the Whigs, taking their stand upon the Septennial Act, 
 contended against the Tories for the greater duration of Parliament ; and that 
 a reform which was demanded as of capital importance by the Tories under 
 George I. and George II., and by the Radicals in the succeeding reigns, has 
 at present scarcely a champion in England.' Lecky, Hist, of Eng. i. 450. 
 
 ^ Frequent dissolutions have red iced Parliaments, at several periods, to an 
 average duration of three or four years. Sir Samuel Romilly stated, in 18 1 8, 
 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. 
 (May, Const. Hist. i. 444.) The Parliament which met on the 31st of May, 
 1859, was not dissolved till July 6, 1865, exceeding the six years' practical limit 
 by thirty-six days. 
 
 C.H. 3 I> 
 
770 Progress of the Constitution [Ch. 
 
 limit fixed, the practical limit will nejessarily be somewhat 
 less, in order that the Government may retain its freedom 
 of dissolving Parliament untrammelled, and that the in- 
 convenience of a forced dissolution at an \intoward moment 
 may be avoided. Should the question be again taken up in 
 earnest, a quinquennial or sextennial limit would probably, 
 on the ground of convenience and efficiency, be found 
 preferable alike to the somewhat excessive prolongation 
 possible under the existing system, and to the inadequacy 
 of the shorter period which it replaced. 
 Abrogaticn The rule that Parliament was ipso facto dissolved by the 
 that Pariia- death of the Sovereign was abrogated in Queen Anne's 
 ment was reign by an enactment that the Parliament in beingf at the 
 
 dissolved by . ^ "^ . ^ 
 
 death of the time of a demise of the Crown should continue for six 
 Sovereign, months afterwards, unless specially prorogued or dissolved 
 by the new Sovereign.^ A statute of George III.'s reign 
 further provides, that if the Sovereign should die in the 
 interval between the dissolution of one Parliament and the 
 meeting of a new one, the last preceding Parliament shall 
 ipso facto revive and continue in being, unless again dis- 
 solved, for six months.^ 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 Crov/n is in no way affected by 
 that event.^ 
 Privilege of Prior to the Revolution, privilege of Parliament had 
 since the been nearly always asserted on behalf of Popular rights 
 Revolution, ^nd liberties against the arbitrary authority of the Crown.* 
 The Revolution established the supremacy of Parliament 
 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. 
 Sometimes Corrupt in itself, and the offspring of narrow and corrupt 
 
 wielded by ^ 
 the Execu- 
 
 1 7 & 8 Will. III. c. 15 ; 6 Anne, c. 7. 
 
 2 37 Geo. III. c. 127. 
 
 ^ 30 & 31 Vict. c. 102, s. 51. 
 '' Supra, p. 336, £t seq. 
 
xviL] since the Revolution. "jji 
 
 constituencies, its necessary power of inflicting punishment tive for the 
 for breach of privilege was placed at the disposal of the of popular 
 Executive for the oppresssion of popular liberty. liberty. 
 
 In 17 14, Sir Richard Steele was expelled the House for Expulsion of 
 writing ' a seditious and scandalous libel ' called The Crisis, gleeig'^ ^^ 
 a pamphlet reflecting on the Tory Ministry of Queen Anne 1714- 
 as inimical to the Hanoverian succession, In their pro- 
 ceedings against Wilkes in 1763 and following years, the Proceedings 
 Commons first withdrew the shield of privilege in order to-^^J^^^ 
 justify a Judicial decision contrary to law and usage, and 1763. 
 then, not content with expelling the obnoxious Member, 
 proceeded illegally to deprive the electors of Middlesex 
 of their free choice of a representative.^ Wilkes had been 
 arrested and imprisoned, in consequence of the publication 
 of the celebrated No. 45 of the North Britoft, on a 'general 
 warrant,' — i.e., a warrant not specifying any person by 
 name, but directed against 'the authors, printers, and 
 publishers' generally, — signed by Lord Halifax, Secretary 
 of State. Released on a writ of habeas corpus, on the 
 ground of his privilege as a member of the House of 
 Commons, the Lower Housfe, eager to second the 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 seditious libel, tending to excite 
 traitorous insurrections,' and resolved ' that privilege of 
 Parliament does not extend to the case of writing and 
 publishing seditious libels.' ^ Wilkes, having been proved He is ex- 
 to be the author and publisher of the obnoxious No. 45, was Ho^^^^^ 
 expelled the House, and withdrew to France, an exile and 
 an outlaw. Returned for Middlesex in 1768, he was again 
 expelled ; ^ and on his immediate re-election, the House 
 
 1 [The same fate, in our own day, practically befell the electors of Northamp- 
 ton, owing to the long series of struggles in Parliament regarding the eligibility 
 of Mr. Bradlaugh, the validity of his self-administered oath, and of any oath 
 taken by a person openly professing that oaths had no sanction for him. — Ed.] 
 
 2 Cobbetl's Pari. Hist. xv. 1359 sec/. 
 
 3 On the 25th April, 1768, we find George HI. writing to Lord North, then 
 Chancellor of the Exchequer : * Though entirely relying on your attachment to 
 
 3 D 2 
 
T"]! Progress of the Constitution [Ch. 
 
 Declared in- ^ot only expelled him a third time, but resolved that his 
 re-election, expulsion rendered him ' incapable of being elected a 
 1768. rnember to serve in this present Parliament.' Again re- 
 
 elected by the county of Middlesex, the House declared his 
 return to be null and void ; and, on his being once more 
 returned by the county, the House not only declared his 
 election void, but adjudged the seat to Colonel Luttrell, the 
 second candidate, who had received only 296 votes, against 
 1 143 recorded for Wilkes. A profligate demagogue was 
 thus turned into a popular hero and a champion of Constitu- 
 tional freedom. After a lapse of five years Parliament 
 was dissolved, and to the new Parliament in 1774, Wilkes 
 was again returned for Middlesex. The former intem- 
 perate 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.,' 
 Thedeclara- were at length, in 1782, expunged from the Journals of the 
 punged from Commons, as being subversive of the rights of the whole 
 the Journals body of electors in the King^dom.^ 
 
 of the Com- ^ ^ 
 
 mens, 1782. ■ — 
 
 my person as well as on your hatred of any lawlesss proceeding, yet I think it 
 highly expedient to apprise you that the expulsion of Mr. Wilkes appears to 
 be highly expedient, and must be effected.' Lord Mahon, Hist, of Eng. 
 V. 227. 
 Expulsion ^ The right of the Commons to expel a member is undoubted : but since 
 
 and dis- the reversal in 1782 of the proceedings against Wilkes, it has been equally 
 
 qualification undoubted that expulsion, though it vacates the seat of the expelled Member, 
 of members, does not create any disability in him 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. 
 Disability Practice, p. 63, 9th ed.] The question of the disability arising from convic- 
 arising from tion of treason or felony has been the subject of discussion in the Commons on 
 conviction of two or three recent occasions. By the Common Law a person attainted of 
 treason or treason or felony was incapable of being elected a member of Parliament ^Coke, 
 felony. 4th Inst. 47). But a doubt was at one time entertained whether a person who 
 
 was not attainted for treason or felony, but was merely convicted, was dis- 
 Smith qualified. In 1849, a resolution was brought before the House of Commons 
 
 O'Brien that Mr. Smith O'Brien, M.P., having been convicted of treason, was in- 
 
 1849. * eligible to sit in the House. It was proposed as an amendment that the reso- 
 lution 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 
 0^ Donovan ineligible to sit in the House. The next cnse was that of O'Donovan Rossc, 
 /Cossa, 1870. in 1870, who was returned for Tipperary while undergoing sentence of penal 
 servitude for treason-ftlony. As he had been convicted and sentenced under 
 the Treason-felony Act 11 & 12 Vict. c. 12 {supra^ p. 40S, n.) it was contended 
 
XVI r.] si7tce the Revolution, 773 
 
 In the exercise of its power of commitment the House ■'^^^se of the 
 
 , privilege of 
 
 of Commons, on more than one occasion since the Revo- commit- 
 lution, has been carried by passion beyond the reasonable ^^^^' 
 and customary Hmits of privilege. In 172 1 a printer named nient"of'the 
 Mist was committed to Newgate by the House for print- printer Mist, 
 ing a Jacobite newspaper which the Commons resolved to 
 be * a false, malicious, scandalous, infamous, and traitorous 
 libel.' As the offence of Mist could not possibly be in- 
 terpreted as a contempt of the House, or a breach of its 
 privileges, this proceeding of the Com.mons was quite as 
 unjustifiable, if not quite so violent, as their treatment of 
 Floyd in the reign of James I.^ 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 ^^^e of Mr. 
 privilege was distinctly recognised by the Judges in the Murray, 
 two celebrated cases of the Hon. Alexander Murray ^75^- 
 
 that, not being attainted, there was no disqualification : but the House again re- 
 jected the contention, and resolved that U'Donovan Rossa 'having been adjudged 
 guilty of felony, and sentenced to penal servitude for life, and being novir im- 
 prisoned 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 Ad 33 6^ 34 
 Vict. c. 23, passed in the same year, 1870) that any person thereafter con- Vict. c. 23 
 victed of those offences should be incapable, while undergoing punishment, of (1870). 
 being elected a member of, or sitting or voting in, Parliament, or of exercising 
 any parliamentary or municipal franchise. The proceedings in O'Donovan 
 Rossa's case also established that the House, notwithstanding the Act of 1808 
 (31 & 32 Vict. c. 125, sttpra, p. 356), reserved in its own hands the power to 
 decide on the eligibility of Members. The next leading case is that of Mr. John 
 John Mitchell. In i8j.8 he was tried for treason-felony, found guilty, and Mitchell^ 
 sentenced to 14 years' transportation. After a comparatively short period he 1875. 
 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 1875, ^^ ^'^s returned unopposed for Tipperary. On 
 the i8th of February, on the motion of the Premier, Mr. Disraeli, and not- 
 withstanding the expression of several doubts as to the legality of the course 
 proposed to be adopted, the House resolved ' That John Mitchell, returned as 
 a member for the county of Tipperary, having been adjudged guilty of felony 
 and sentenced to transportation for 14 years, and not having endured the 
 punishment to which he was adjudged for such felony, or received a pardon 
 under the Great Seal, has become, and continues, incapable of being elected 
 or returned as a member of this House.' 
 1 Stipra, p. 547, seq. 
 
774 Progress of the Constitution [Ch. 
 
 (brother to Lord Elibank, a noted Scottish Jacobite), in 
 175 1, and of Sir Francis Burdett in 18 10. In the course 
 of an enquiry before the House into a contested West- 
 minster election, the High Bailiff complained of Mr. Murray 
 (who had been actively engaged in the election against 
 the Ministerial candidate) for obstructing and 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 his sentence on his knees. This humiliating 
 command he steadily refused to obey. * Sir, I never kneel 
 but to God,' was his haughty reply to the Speaker;^ and 
 the Commons were obliged to content themselves with 
 ordering that he should be kept under the closest restric- 
 tions in Newgate, without pen, ink, or paper, and that no 
 person, not even his servant, should be admitted to him, — 
 a severity which, on account of his ill-health, was soon 
 afterwards relaxed.^ On suing out his writ oi 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.^ 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 of popular freedom. On the first day of the 
 following session a motion was carried for his re-committal ; 
 but it was then found that he had withdrawn beyond sea, 
 out of reach of the Serjeant-at-arms.* 
 Case of Sir In 1 8 10, the Commons having committed to Newgate 
 
 Francis Bur 
 
 dett, 1810. 
 
 1 Lord Orford, Memoirs of last ten years of the reign of George II., i. 24. 
 
 2 By a standing order of the Commons, in 1772, 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. 
 
 3 State Trials, viii. 30. 
 
 < Lord Mahon, Hist, of Eng. iv. 29. 
 
XVII.] since the Revolution. 775 
 
 the publisher of an offensive placard announcing for dis- 
 cussion in a debating society the conduct of two Members 
 of Parliament, Sir Francis Burdett denied the authority of 
 the Commons, in his place in Parliament, 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. 
 The Commons, instead of treating these actions as a 
 contempt of their authority, wisely directed the Speaker 
 to plead and submit himself to the jurisdiction of the 
 Court. In the result the Court of King's Bench, and, on 
 appeal, the Exchequer Chamber and the House of Lords, 
 successively upheld the authority of the House.^ 
 
 Of all the privileges of Parliament, the one which has Publication 
 undergone the greatest modification, and of which the 
 practical abandonment has produced the most momentous 
 political results, is that which concerns the secrecy of its 
 proceedings. 
 
 The original motive for secrecy of debate was the anxiety Motives for 
 of the Members to protect themselves against the action ^^^"^^^y- 
 of the Sovereign, but it was soon found equally convenient 
 as a veil to hide their proceedings from the constituencies. 
 'To print or publish the speeches of gentlemen in this 
 House,' said Mr. Pulteney in 1738, 'looks very like 
 making them accountable without doors for what they say 
 within ; ' ^ and it was only after a prolonged struggle that 
 the right of the electors, and of the public at large, to 
 know what the representatives of the Nation were doing in 
 Parliament was at length virtually conceded. 
 
 The Long Parliament, in 1641, had permitted the pub- The *DIur- 
 lication of its proceedings in the ' Diurnal Occurrences of re^nces^of'^' 
 
 Parliament;, 
 ~ 1641-1660. 
 
 1 Ann. Register for 1810, p. 344; Hansard, Deb. xvi. 257, 454 ; and May, 
 Const. Hist. ii. 76. 
 3 Cobbett's Pari. Hist. x. 806. 
 
776 
 
 Progress of the Constitution 
 
 [Ch. 
 
 Votes and 
 proceedings 
 ordered to 
 be printed, 
 1680. 
 
 Debates 
 published 
 anony- 
 mously in 
 news-letters, 
 
 Parliament ' (which continued until the Restoration), but 
 prohibited the printing of speeches without leave of the 
 House. For printing a collection of his own speeches, 
 without such leave, Sir E. Bering^ was expelled the House 
 and imprisoned in the Tower, and his book was ordered 
 to be burned by the common hangman.^ The prohibi- 
 tion 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.^ Thenceforward till 
 the Revolution, we are almost entirely indebted for our 
 knowledge of the Parliamentary debates to the private 
 memoranda and letters of members, which have since been 
 published. Andrew Marvell, member for Hull, sent regular 
 reports to his constituents during the eighteen years from 
 the Restoration to 1678. Anchitell Grey, who represented 
 Derby for thirty years, took notes of the debates from 
 1667 to 1694, which were published, nearly a hundred 
 years afterwards, in 1769. Locke, indeed, at the instiga- 
 tion of Shaftesbury, ventured, in 1675, to write and publish 
 a report of a debate in the House of Lords, under the title 
 of ' A letter from a Person of Quality to a friend in the 
 Country ;' but the Privy Council ordered it to be burnt by 
 the hangman. Debates were also frequently published 
 anonymously in news-letters and pamphlets. After the 
 Revolution frequent Resolutions were passed by both 
 Houses, from 1694 to 1698, to restrain ' news-letter writers ' 
 from * intermeddling with their debates or other proceed- 
 ings,' or ' giving any account or minute of the debates.' 
 But notwithstanding these Resolutions, and the punishment 
 of offenders, privilege was unable to prevail against the 
 
 * [This was Sir Edward Bering, of Surrenden Bering, 1st Bart. (cr. 1626), 
 Lieutenant of Bover Castle, the head of an ancient Kentish house, and ' a man 
 of talents and learning,' as he is described in the account of the family in 
 Burke's Peerage. — Ed.] 
 
 2 Comm. Journ. ii. 411 (Feb. 2, 1641). 
 
 ' Comm. Journ. ix. 74. 
 
XVII.] since the Revolution. 777 
 
 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/ and maga- 
 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 reporting 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 misrepresenta- 
 tion. Dr. Johnson, who wrote the Parliamentary 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.' ^ 
 In a debate on the subject in 1738, initiated by Mr. Speaker Complaints 
 Onslow, Sir Robert Walpole humorously complained of^g^""^^"^' 
 the misrepresentation to which Members were subjected. 
 * I have read some debates of this House,' he said, ' in which 
 I have been made to speak the very reverse of what I 
 meant. I have read others of them wherein all the wit, 
 the learning, and the argument has been thrown into one 
 side, and on the other nothing but what was low, mean, and 
 ridiculous ; and yet, when it comes to the question, the 
 division has gone against the side which upon the face of 
 the debate had reason and justice to support it.'^ Later 
 reporters, moreover, too often indulged in offensive and 
 scurrilous nick-names. 
 
 In 1 77 1 notes of the speeches were published in several Contest with 
 journals, accompanied, for the first time, with the names j»^P""^^^^' 
 of the speakers ; and Col. George Onslow, member for 
 Guildford, and a nephew of the late Speaker, who had 
 been provoked by the opprobrious terms applied to him 
 by some of the reporters, precipitated a conflict between 
 
 * See Dr. Johnson, Life of Cave ; Nichols, Literary Anecdotes ; Hunt, 
 Fourth Estate, and May, Const. Hist. ii. 37. 
 2 Cobbett's Pari. Hist. x. 810. 
 
77^ Progress of the Constitution [Ch. 
 
 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 this House.* 
 Certain printers were in consequence ordered to attend 
 the bar of the House. Some appeared and were dis- 
 charged, after receiving, on their knees, a reprimand from 
 the Speaker. Others evaded compliance ; and one of 
 them, John Miller, 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. They were both taken before the 
 [Further Lord Mayor (Mr. Brass Crosby), Mr. Alderman Oliver, 
 wUh^the ^"^ ^^^ notorious John Wilkes, who had recently been 
 Lord Mayor invested with the aldermanic gown. These Civic magis- 
 
 and Alder- - t i i • i 
 
 men of trates, on the ground that the messenger was neither a 
 London, 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 appre- 
 hension 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 proceedings at once brought the 
 House into conflict with the Lord Mayor and Aldermen 
 of London. The Lord Mayor and Alderman Oliver, who 
 were both Members of Parliament, were ordered by the 
 The Lord House to attend in their places, and were subsequently 
 (Briss committed to the Tower. Their imprisonment, instead 
 
 Crosby) and of being a punishment, was one long-continued popular 
 Oliver com- ovation, and from the date of their release, at the pro- 
 
 mitted to roe^ation of Parliament shortly afterwards, the publication 
 the Tower. ^ , , - , , . , • r 
 
 of debates has been pursued without any interference or 
 restraint.^ 
 Reporting Though still in theory a breach of privilege, reporting is 
 
 still a breach 
 
 of privilege, 
 
 1 Cobbett's Pari. Hist. xvii. 59-163. 
 
XVII.] since the Revolution. 779 
 
 now encouraged by Parliament as one of the main sources 
 of its influence — its censure being reserved for wilful mis- 
 representation only. But reporters long continued beset 
 with many difficulties. The taking of notes was prohibited, 
 no places were reserved for reporters, and the power of a Exclusion of 
 single member of either House to require the exclusion of 
 strangers was frequently and capriciously employed. By 
 the ancient usage of the House of Commons any one 
 Member by merely ^ spying ' strangers present could compel 
 the Speaker to order their withdrawal without putting the 
 question. This power was exercised in 1849, and, after an 
 interval of twenty-one years, in 1870. Its subsequent 
 enforcement in 1872, 1873, and in later years, caused 
 considerable inconvenience, and at length in 1875, the 
 House was induced to adopt a modification of the rule. 
 By a Resolution, passed in May of that year, while leaving Resolution 
 the personal discretion of the Speaker unfettered, he was ^ouse, 
 directed that whenever the presence of strangers should be 1875. 
 brought to his notice by a Member, he should, forthwith, 
 without any debate or amendment, put the question of their 
 withdrawal for the decision of all the Members present. 
 Although not made a Standing Order, this Resolution, in 
 the absence of further instructions from the House, has 
 since been acted on by the Speaker in every case which has 
 subsequently arisen. 
 
 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 
 recognised in the Orders of the House of Commons. The Publication 
 daily publication of the Division lists as part of the iistsr^^^°" 
 proceedings of the House, — which alone was wanting to 
 complete the publicity of its proceedings and the responsi- 
 bility of Members, was not adopted by the Commons until 
 1836, an example which was only foUov/ed by the Lords 
 in 1857. Previously it had been impossible to ascertain, 
 in the great majority of cases, what Members were present 
 
78o 
 
 Progress of the Constitution 
 
 [Ch. 
 
 Publication 
 of Parlia- 
 mentary 
 reports and 
 papers. 
 
 Political 
 results of 
 reporting. 
 
 Conflict 
 between the 
 Commons 
 and the 
 Courts of 
 Law as to 
 publication 
 of papers 
 affecting 
 character. 
 
 at a division and how they voted, the Houses themselves 
 taking no cognisance 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 practice — notwithstanding it was 
 declared by the House of Commons in 1696 to be a breach 
 of privilege ' destructive 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, 
 the Commons admitted the public into ' community of 
 knowledge as well as community of discussion ' by directing 
 all Parliamentary reports and papers to be freely sold at a 
 cheap rate. 
 
 * The entire people,' it has been well observed, ' are now 
 present, as it were, and assist in the deliberations of Parlia- 
 ment. An orator addresses not only the assembly of 
 which he is a member ; but, through them, the civilized 
 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." ' ^ 
 
 The revolution which h^s taken place since the i8th 
 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 Parliamen- 
 
 May, Const. Hist. ii. 53. 
 
XVII.] since the Revolutio7i, 78 ^ 
 
 tary reports and proceedings. In 1771 we have seen the 
 Commons in conflict with the magistrates of London to 
 uphold the privilege of the inviolable secrecy of the pro- 
 ceedings of the House ; in 1836 the object of their conten- 
 tion with the Courts of Justice was the privilege of 
 publishing all their own papers for the information of the 
 nation. Certain reports of the Inspectors of Prisons, 
 printed by Messrs. Hansard in obedience to the orders oi Stockdalc \ 
 the House of Commons, contained severe animadversions ig^^, ' * 
 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 justifica- 
 tion ; but Lord Chief Justice Denman, before whom the 
 cause was tried, observed incidentally that * the fact of the 
 House of Commons having directed Messrs. Hansard to 
 publish all their parliamentary reports, was no justification 
 for them, or for any bookseller who publishes a parliamen- 
 tary report containing a libel against any man.' This 
 denial of Parliamentary privilege was met by a declaration 
 of the Commons that the power of publishing their pro- 
 ceedings and reports was ' an essential incident of the con- 
 stitutional functions of Parliament,' and that any person 
 instituting 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.^ 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.^ While in prison, Stockdale repeated 
 his offence by bringing other actions, for which his attor- 
 
 1 Stockdale v. Hansard^ 9 Ad. & E. I (1839), [Denman's Broom's Const. 
 Law, p. 875, and Note, p. 968.] 
 
 2 Case of the Sheriff of Middlesex, 11 Ad. & E. 273 (1840) ; [Denman's 
 Broom's Const. Lazv, p. 961. J 
 
782 Progress of the Constitution [Ch. 
 
 ney's son and clerk were committed ; and the deadlock was 
 Right of at length only removed by the passing of an Act of Par- 
 t^^pibHsT* liament providing that all such actions should be stayed 
 established on the production of a certificate or affidavit that the paper 
 Vict.^c.'p. ^ complained of had been published by the order of either 
 House of Parliament.^ The right of a newspaper to pub- 
 lish a fair and faithful report of the debates and proceed- 
 ings in Parliament without any authorisation from either 
 House, was determined in 1868 by the decision of the 
 Wason V. Court of Qucen's Bench, in Wason v. Walter, that no action 
 
 Walter . 
 
 1868. ' ^or libel would lie against the proprietor of the * Times ' for 
 so doing.^ 
 
 IV. Growth of Religious Liberty. 
 {IV. ) Tele- Protestant Nonconformity, fostered instead of being 
 gfow^h^of crushed by the very efforts of the Church to enforce unity, 
 Religious had gained considerably in numbers, organisation, and 
 political weight, during the reigns of the last two Stuarts ; 
 and the important services of the Dissenters, in combining 
 with the Church to bring about the Revolution of 1688, 
 Toleration were • rewarded by the Toleration Act. This famous 
 al'd'Ma^f * Statute was far indeed from granting religious freedom ; it 
 c. 18. repealed none of the Acts by which conformity with the 
 
 Church of England was exacted, and left the Civil disabili- 
 ties of Nonconformists under the Corporation Act of 1661 
 and the Test Act of 1673 ^ intact ; but it recognised, for the 
 first time, the right of public worship beyond the pale of 
 the State Church, by exempting from the penalties of 
 
 1 3 & 4 Vict. c. 9. Subsequently Stockdale'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 plaintiffs favour. But on a writ of error the judgment in the second action 
 was reversed by the Court of Exchequer Chamber. Howa7-d v. Cosset, lo 
 Q. B. 352 ; [Denman's Broom's Const. Law, p. 970.] 
 
 ^ Wasoji V. Walter, 8 Best & Smith, 671. [A still more famous case of 
 Privilege in which 7 he Times has been concerned is that which, arising out of 
 the publication in the "Times of letters affecting Mr. Parnell's conduct in con- 
 nection with Irish affairs, has recently given rise to a protracted Trial before 
 a Special Commission, as to which cf. Law Maga%ine and Review, No. 
 cclxix., p. 394, for August, 1888. — Ed.] 
 
 3 Stipra, pp. 653-4. 
 
XVII.] since the Revolution, 'I'^l 
 
 existing statutes against separate conventicles and absence 
 from church, all persons who should take the oaths of alle- 
 giance 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 sacra- 
 ment and preaching in meetings,^ on condition that, in 
 addition to taking the oaths, they signed the 39 Articles, 
 with the exception of three and part of a fourth.^ Quakers 
 were allowed to make an affirmation in lieu of taking the 
 oaths. All meeting-houses were required to be registered, 
 but when registered their congregations were protected 
 from molestation.^ 
 
 The principle of Religious Toleration was as yet, however. Toleration 
 but imperfectly established.* Roman Catholics and Unita- tiaiiy esta- 
 rians were specially excepted from the Act, and were soon bhshed. 
 afterwards subjected to additional penalties. Unitarians 
 were disabled from holding any office ecclesiastical, civil or 
 military : ^ and Roman Catholics were placed under most 
 severe restrictions.^ 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 
 
 1 Supra, pp. 657, 659. 
 
 - The articles excepted (as expressing the distinctive doctrines of the Church) 
 were Arts. 34, 35, 36, and part of Art. 20. 
 
 3 I Will. & Mary, c. 18, confirmed by 10 Anne, c. 2. 
 
 '' [The Scottish Episcopal Church, which was established at the time of the 
 accession of William III,, was disestablished, not on account of any theological 
 partialities of William himself, but because of the general adherence of its 
 bishops and clergy, and a considerable portion of the laity, to the cause of the 
 exiled House of vStuart. Heavy penal disabilities were laid on the Episco- 
 palians in Scotland, which were only partially removed in 1792. See History 
 ofLatcreiicekirk, by Rev. W, R. Eraser, M. A., Edinburgh, 1880, for the impartial 
 witness of a Presbyterian minister to the pressure of the disabilities ; and for 
 evidence of their pressure on even the non-Jacobite members of the Episcopal 
 clergy, see the interesting Life and Times of Rev. John Skinner of Linshart, 
 Longside (the well-known author of ' Tullochgorum '), by Rev. W. Walker, 
 M.A., London, 1883. John Skinner was ordained deacon in 1742, and was 
 imprisoned for the use of the same Book of Common Prayer which he would 
 have been deprived for not using in England. — Ed. 
 
 5 9 Will. III. c. 35. 
 
 6 I Will. & Mary, st. 2, c. I. 
 
7H 
 
 Progress oj the Constitution 
 
 [Ch. 
 
 Temporary 
 reaction 
 under Anne. 
 
 Acts against 
 Occasional 
 Conformity 
 and the 
 growth of 
 Schism. 171 1 
 and 1713. 
 
 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 pro- 
 hibited from sending his children abroad to be educated.^ 
 During the Tory ascendancy of the last four years of 
 Queen Anne's reign, serious inroads were made upon the 
 toleration formerly granted to Protestant Nonconformists, 
 more especially by two statutes, the Occasional Conformity 
 Act,- and the Schism Act.^ The former, passed in 171 1, 
 was intended to prevent the evasion of the Test Act by 
 occasional conformity on the part of those Dissenters who, 
 while adhering to their own form of worship, did not 
 hesitate occasionally to receive the sacrament according to 
 the rites of the Established Church.* The other Act, passed 
 in 171 3, for 'preventing the growth of Schism,' was framed 
 in the true persecuting spirit, to deprive Dissenters of the 
 means of educating their children in their own religious 
 beliefs, by crushing all Nonconformist schools, some of 
 which had already attained a certain degree of eminence. 
 These reactionary statutes were, however, both repealed in 
 17 1 8, under George I.,^ and from the beginning of the reign 
 
 1 II & 12 Will. III. c. 4; 13 Will. III. c. 6. 
 
 2 10 Anne, c. 2. 
 * 12 Anne, c. 7. 
 
 ■* [This practice, which, as Mr. Minto says, 'had grown up after the Revo- 
 lution and had attracted very little notice until a Dissenting Lord Mayor, after 
 attending church one Sunday forenoon, went in the afternoon with all the 
 insignia of his office to a Conventicle,' was severely criticised by Defoe in a 
 Pamphlet on Occasional Conformity, published in 1698, the y*ar after Sir 
 Humphrey Edwin had given the special cause of oifence which attracted 
 public attention and Defoe's wrath. Cf. English Men of Letters. Defoe. By 
 W. Minto. Lond. 1879, pp. 19-20. Occasional Conformity, said Defoe, 
 with a certain rigorous logic, was ' either a sinful act in itself, or else his dis- 
 senting before was sinful.' Yet when a Bill was subsequently introduced to 
 prohibit Occasional Conformity, Defoe condemned it as a ' breach of the 
 Toleration Act, and a measure of persecution.' The existence of such con- 
 flicting views among professed Dissenters may serve to shew the difficulty of 
 framing a Legislation to meet such conflict and at the same time to guard 
 against what were, or were at least considered to he, dangers to the existing 
 Constitution in Church and State. — Ed.] 
 
 ^ 5 Geo. I. c. 4. In 1697, Sir Humphrey Edwin, Lord Mayor of London, 
 and a Presbyterian, gave great offence to churchmen by going in civic state to 
 a Dissenting Meeting-house. To prevent any repetition of the scandal, the 
 Act of 5 Geo. I. (now repealed by the Statute Law Revision Act, 187 1) while 
 repealing the Occasional Conformity Act, enacted that no mayor, bailiff, or 
 
XVII.] since the Revolution. 785 
 
 of George II. civil offices were practically thrown open to 
 Protestant Dissenters, by means of the Annual Indemnity Annual In- 
 Acts passed in favour of those who had failed to qualify A^cts^under 
 themselves under the Corporation and Test Acts.^ The George II. 
 severe laws against the Roman Catholics, although en- 
 forced by a Proclamation of Queen Anne in 17 11, by a 
 further Act of Parliament after the Rebellion of 1715,- and 
 by another Royal Proclamation after the rebellion of 1745, 
 were also greatly mitigated in practice. 
 
 In 1753, a fresh restriction was imposed upon Dissenters Lord Hard- 
 
 wicke's Mar" 
 
 by Lord Hardwicke's Marriage Act,^ the immediate object riage Act, 
 of which was to prevent clandestine marriages. Dissenters ^753- 
 had previously been allowed to be married in their own 
 places of worship ; but by this Act all marrriages, except 
 those of Jews and Quakers, were required to be solemnised 
 in a church, by ministers of the Establishment and accord- 
 ing to its ritual. 
 
 It was not, indeed, till the reign of George III., when Relaxation 
 the Jacobitism of the Roman Catholics had become luke- pena/code 
 warm and innocuous, and the preaching of Wesley and "P^^*^ 
 Whitefield had stimulated and revived the Dissenting sects, 
 that the gradual relaxation of the religious penal code was 
 commenced in earnest. Early in this reign the broad prin- Principle of 
 ciples of Toleration were Judicially affirmed by the House uphdd b*y 
 of Lords, in the case of the City of London and the House of 
 
 ■r%- Alt' -j'lTiTi/r^i, Lords in the 
 
 Dissenters.* 'It is now no crime, said Lord Mansfield case of the 
 in moving the Judgment of the House, ' for a man to say ^^^ ?^ , 
 
 the Disseji 
 
 ters, 1767 
 
 other magistrate should attend any public meeting for religious worship, other 
 than that of the Church of England, in the gown or with the ensigns of his 
 office, on pain of being disqualitied to bear any public office whatsoever. 
 
 1 The first Indemnity Act was passed in 1727. Since then, with a fev- 
 exceptions, similar Acts were annually passed, until the repeal of the Test ana 
 Corporation Acts in 1828. 
 
 '^ I Geo. I. c. 55. 
 
 3 26 Geo. II. c. 33. 
 
 * Cha?nberlain of London v. Allen Evans, Esq. The suit, originally in- 
 stituted in the Sheriff's Court, was for a fine (under a bye-law made in 1748) 
 for refusing to serve as Sheriff, on the ground of disability arising from not 
 having taken the Sacrament, according to the rites of the Church of England, 
 within a year before, as required by the Corporation Act of 13 Car. II. 
 Judgment of the House for the Defendant. 
 
 C.H. 3 E 
 
786 Progress of the Constitution [Ch. 
 
 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.' * Persecution for a sin- 
 cere, though erroneous, conscience, is not to be deduced 
 from reason or the fitness of things ; it can only stand 
 upon positive law. 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 exempted from punishment, but rendered inno- 
 cent and lawful ; it is established : it is put under the pro- 
 tection, and is not merely under the connivance, of the 
 law.' 'There is nothing certainly,' he added, ' more unrea- 
 sonable, more inconsistent with the rights of human nature, 
 more contrary to the spirit and precepts of the Christian 
 religion, more iniquitous and injust, more impolitic, than 
 persecution. It is against natural religion, revealed reli- 
 gion, and sound policy.' ^ 
 
 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 <di 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- 
 Roman laxed. By the Roman Catholic Relief Act of 1778, the 
 Relief Acts precursor of the 'No Popery' Riots under Lord George 
 of 1778 and Gordon in 1780, — supplemented by another Act in 1791,^ 
 various penalties and disabilities were removed. Priests 
 were no longer subjected to perpetual imprisonment for 
 the performance of their sacred functions ; Roman Catholic 
 heirs educated abroad were relieved from forfeiture of their 
 estates to the next Protestant heir ; the prohibition to 
 purchase landed property was removed ; a modified free- 
 dom of worship and education was permitted ; and Roman 
 
 ^ Cobbett's Pari. Hist. xvi. 313-327. 
 
 2 18 Geo^ iix. c. 60, and 31 Geo. III. c. 32. 
 
XVII.] since the Revolution. 'J^J 
 
 Catholic Peers, though still barred by the oath of Supre- 
 macy from sitting in the House of Lords, were relieved 
 from the banishment from the King's presence to which 
 they had been subjected in 1678.^ 
 
 In 1 779, the Dissenting- Ministers' Act, relieved Protes- Statutes 
 
 , , ^ relieving 
 
 tant dissenting preachers and schoolmasters from the Dissenters 
 limited subscription to the Thirty-nine Articles required [[^^^g^^is- 
 by the Toleration Act;^ and a further measure in 1 8 1 2 ^ abilities, 
 relieved them from the remaining oaths and declaration 
 required by the latter statute. The following year wit- 
 nessed the removal of the disabilities under which Unita- 
 rians had laboured, by a statute* repealing the exception of 
 anti-Trinitarians from the benefits of the Toleration Act, 
 as well as the provisions against them in the Act of 9 & 10 
 William III. 'for the suppression of blasphemy and pro- 
 faneness.' The Civil disabilities of Dissenters under the Their Civil 
 
 _, ,^ .. „, .11 11 disabilities. 
 
 Test and Corporation Acts still remained to be grappled 
 with. These monuments of bygone bigotry were not only 
 unjust to a large and worthy section of the community, 
 but hurtful to the very cause of religion itself by turning 
 the most sacred ordinance of Christianity into ' an office- 
 key, a pick-lock to a place.' ^ As early as 17 18 the first Early at- 
 Lord Stanhope, anxious, as he declared, to place the Dis- j-gUef.^ ^ 
 senters on a footing of perfect equality with Churchmen, 
 had endeavoured to procure the repeal of the Test Act at 
 the same time that the Occasional Conformity and Schism 
 Acts were abrogated. But owing to the strong opposition, 
 the repeal of the Test Act was deferred to a more favour- 
 able opportunity. In 1736, Mr. Plumer brought forward a 
 motion for its repeal, but Walpole, who had for years 
 obtained the support of the Dissenters by holding out the 
 hope of his assistance when an opportune moment should 
 arrive, voted against the motion, which was defeated by a 
 
 1 30 Car. II. St. 2. 
 
 2 Supra, p. 783. 
 
 3 52 Geo. III. c. 155. 
 ^ 53 Geo. III. c. 160. 
 
 ^ Cowper, Works, i. 80. 
 
 3 E 2 
 
788 
 
 Progress of the ConstitiUion 
 
 [Ch. 
 
 Repeal of 
 Test and 
 Corporation 
 Acts, 1828. 
 
 Roman 
 Catholic 
 Emancipa- 
 tion Act, 
 1829. 
 
 majority of 128.^ Half a century passed before another 
 attempt was made by Mr. Beaufoy, in 1787, but, though 
 repeated in 1789, his motion was unsuccessful. Mr. Fox 
 was the next to take up the subject, in 1790, yet even his 
 advocacy was impotent to overcome the determined oppo- 
 sition to a repeal. After the lapse of nearly forty years, 
 Lord John Russell, more fortunate than his predecessors, 
 obtained, in 1828, a success for which they had vainly 
 striven. The Civil disabilities of Dissenters were at last 
 swept away by the repeal of the Test and Corporation 
 Acts ; the sacramental test previously required as a 
 qualification for civil, military, and corporate offices, 
 being- replaced by a declaration, ' upon the true faith of 
 a Christian,' against injuring or disturbing the Established 
 Church.2 
 
 The following year, 1829, witnessed the passing of the 
 Roman Catholic Relief Act. From the date of the Union 
 with Ireland in 1801, the injustice of maintaining the Poli- 
 tical disabilities of the Roman Catholics in a United King- 
 dom of which they formed no inconsiderable a portion of 
 the population, became more and more glaring. But 
 George III. declared that he 'should reckon any man his 
 personal enemy,' who proposed any measure of relief ; and 
 during the life of that King the liberal concessions with 
 which Pitt had been anxious to inaugurate the Union, — 
 and the refusal of which was signalised by his resigna- 
 tion of office, — were compulsorily postponed. Under 
 George IV. the question, which was annually contested in 
 Parliament, assumed a graver aspect. The ' Catholic 
 Association,' formed by Daniel O'Connell, kept up a con- 
 stant appeal to the excited passions of the Irish people, 
 and at length the Tory Ministry of the Duke of Wel- 
 lington, finding it necessary to choose between concession 
 and civil war, introduced, and with the aid of the Whigs, 
 carried through both Houses, the Emancipation Act of 
 
 ^ Lord Mahon, Hist, of Eng. i. 480; ii. 280, 
 ' 9 Geo. IV. c. 17. 
 
XVII.] since the Revohition. 7^9 
 
 1829.^ This measure, to which George IV. was with diffi- 
 culty induced to give a reluctant and hesitating assent, was 
 tardy indeed, but complete. It admitted Roman Catholics, 
 on taking the oath of allegiance with a repudiation of the 
 doctrine that princes excommunicated by the Pope might 
 be deposed or murdered (instead of the oath of Supremacy 
 and declaration against Transubstantiation and the adoration 
 of the Virgin Mary), to both Houses of Parliament, to all 
 Corporate offices, to all Judicial offices (except in the Eccle- 
 siastical courts), and to all civil and political offices, except 
 those of Regent, Lord Chancellor in England and Ireland,^ 
 and Lord Lieutenant of Ireland. Additional restraints 
 were, however, imposed by the Act upon the interference of 
 Roman Catholics in Church patronage : Jesuits and monks 
 v/ere prohibited from coming into the realm without licence ; 
 and provisions were inserted for regulating the residence of 
 such as were already within the Kingdom.^ 
 
 In 1832 an Act was passed providing that Roman ^^P^^^ ^^ 
 Catholics in respect of their schools, places of worship, affecting 
 and charities, and of property held therewith, and of per- QatJ^QJ^c 
 sons employed about them, should be subject to the same religion and 
 laws as were applicable to Protestant Dissenters.* A few 
 years later the policy of according perfect Religious liberty 
 to the Roman Catholics was consummated by the repeal 
 
 ^ [The language of the text scarcely seems to do justice to the real feelings 
 of the Duke, which are shewn in a passage cited from Lord Ellenborough's 
 Political Dia?y, i, 143, in Martin's Life of Lord Lyndhtirst, p. 250, n. I ; 
 ' Cabinet Dinner at the Duke's, and the Duke said he believed there was no 
 one who desired the settlement of the Catholic question more than he did ; but 
 he confessed he did not see daylight. ' Much the same state of mind, which as Sir 
 Theodore Martin justly says, appears to have been that of the Cabinet, is 
 evident in Lord Lyndhurst's speech on the Bill, of which Sir Theodore says, 
 loc. cit.^ ' It was obvious throughout the whole of the Chancellor's speech that 
 he was pressed by the difficulty of depriving, upon religious grounds, the 
 majority of the Irish population of their share in the rights and privileges of 
 their fellow-citizens. The perplexities surrounding the whole question were 
 stated with moderation and frankness.' On this subject, as affecting Ireland, 
 cf. also Laxu Magazine and Review, No. cclxv., for Aug., 1887, Art. Niebuhr 
 on the the State of Ireland, 1829. — Ed.] 
 
 ^ The Irish Chancellorship has since been thrown open to all creeds. 
 [Lord O'llagan was the first Roman Catholic Chancellor, 1868-74.— Ed.] 
 
 •* 10 Geo. IV. c. 7. 
 
 -• 2& 3 Will. IV. c. 115. 
 
790 
 
 Progress of the Constitution 
 
 [Ch. 
 
 Completion 
 of Civil 
 enfranchise- 
 ment of 
 Dissenters. 
 
 Jewish 
 disabilities. 
 
 of almost all the enactments against them which (though 
 for the most part obsolete) still remained on the Statute 
 book.^ 
 
 A few supplementary measures were still required to 
 complete the Civil enfranchisement of Dissenters. In 1833, 
 Mr. Pease, the first Quaker who had been elected to the 
 House of Commons for one hundred and forty years, was 
 allowed to take his seat on making an affirmation instead 
 of an oath. In the same year Quakers, Moravians, and 
 Separatists, were enabled by statute to substitute an affir- 
 mation, in all cases, for an oath.^ 
 
 The Jews, banished from England under Edward I., had 
 been suffered to return by Cromwell,^ but were not formally 
 authorised to settle in England until after the Restoration."* 
 An Act of James I.^ passed in 1610, and directed against 
 the Roman Catholics, had the collateral effect of debarring 
 the Jews from the benefits of Naturalisation, by making 
 the reception of the sacrament a necessary preliminary 
 to Naturalisation in all cases. In the interest of trade 
 and colonisation, this requirement was partially relaxed 
 by two subsequent statutes, which (1663) dispensed with 
 the sacramental test in favour of all foreigners who 
 had been engaged in the hemp and flax manufacture, 
 and (1739) of all Jews and Protestant foreigners who 
 had resided seven years continuously in the American 
 plantations.^ Notwithstanding the political disabilities 
 
 1 7 & 8 Vict. c. 102, 9 & 10 Vict. c. 59. 
 
 2 3 & 4 Will. IV. cc. 49, 82 ; and see i & 2 Vict. c. 77. 
 
 3 [It cannot be doubted that, although their residence here may not have been 
 legally recognised until the Restoration, Jews were practically settled in 
 England long before the time of Cromwell. The fact of the banishment, which 
 has been lately a subject of discussion in Notes and Queries, 7th Ser. vii. 215, may 
 be here stated in the words of the author of a Short English Chronicle, in Three 
 Fifteenth Century Chronic/es, Camd. Soc. 1880, ed. by Gairdner, p. 39, inserted 
 in his text before the record for 20 Edw. I., 'This yere the kynge ordeyned 
 that all the Jewes that were dwellinge in this londe shulde be exiled for evir. ' 
 Evidence of the value to the Exchequer of Jews in England before the banishment 
 /. Edw. I. is given by Mr. Jacobs, Arch. Kev., ii. 1888-9, pp. 396-410. — Ed.] 
 
 * Blunt, Hist, of the Jews in England, p. 72. 
 ^ Supra, p. 695, n. 
 
 « 15 Car. II. and 13 Geo. II. c. 7 ; Cobbett's Pari. Hist. xiv. 1373; Lecky, 
 Hist, of Eng. i. 262. 
 
XVII.] since the Revolution, 79 ^ 
 
 attaching to them in England, the number of foreign 
 Jewish settlers continued to increase with the expansion 
 of English commerce ; and at length, in 1753, an attempt 
 was made to extend to all Jews applying for Parliamentary- 
 Naturalisation the exemption from the sacramental test, 
 already conceded to those who had resided in the colonies, 
 or been engaged in the manufacture of hemp or flax. 
 But the celebrated Jew Bill,^ by which this very moderate 
 measure of toleration was effected, proved to be in advance 
 of the opinion of the age. ' No Jews ! No Jews ! No 
 Wooden Shoes ! ' became the popular cry ; and although 
 the Bill, after a fierce opposition in the House of Commons, 
 obtained a fleeting place upon the Statute-book, it raised 
 such a storm of opposition throughout the country, as to 
 necessitate its repeal in the following session.^ Jews were 
 occasionally admitted to municipal offices, together with 
 Protestant Nonconformists, under cover of the Annual 
 Indemnity Acts ; but 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 
 Corporation Acts, had forged new fetters for the Jew. 
 These were removed, so far as regards Corporations, in 
 1845 ;^ and after a lengthened struggle, the only legal 
 obstacle to the admission of Jews to Parliament was also Admission 
 removed, in 1858, by an Act which empowered either House pjfiament 
 of Parliament, by Resolution, to omit the words ' upon the 1858. 
 true faith of a Christian'* from the oath of Abjuration.^ 
 
 ^ Supra, p. 695, n. 
 
 " Lord Mahon, Hist, of Eng. iv. 35-37. 
 
 3 8 & 9 Vict. c. 52. 
 
 ^ [It may not be without interest to note that Lord Lyndhurst, in 1853 argued, 
 in favour of admitting Jews to Parliament, that these words, which were closely 
 connected with the immediately preceding words * without mental reservation, ' 
 were not directed against the Jews at all, but were originally inserted ' to 
 prevent Roman Catholics from taking the oath under certain mental reserves, 
 which, according to some of their teachers, would save them from being bound 
 by it.' Life, by Martin, p. 452. — Ed.] 
 
 » 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 enact- 
 ment of a new form of oath from which the words ' on the true faith of a 
 Christian ' were omitted. 
 
 [The first Jewish peer, — i.e., the first person of the Hebrew race raised to 
 
792 Pi'ogress of the Constitution [Ch. 
 
 Civil Regis- jn 1836 a Civil Registration of births, marriages, and 
 births, mar- deaths was established ; and by another Act, Dissenters 
 T^^t?' ^"^ were permitted to solemnise marriages in their own chapels, 
 1836. registered for that purpose.^ The grievance complained of 
 
 Dissenters' by Dissenters with regard to burials (though destined. 
 
 Marriage , , , ,. \ -n • • 1 
 
 Bill, 1836. doubtless, soon to disappear) 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 Dissenters have generally 
 provided themselves with separate burying-grounds and 
 Universities unconsecrated parts of cemeteries. Lastly, in 187 1, one 
 1871. ' o^ the few remaining disabilities of Dissenters was re- 
 dressed by the Universities Tests Act, which opened all 
 lay academical degrees and all lay academical and col- 
 legiate offices in the Universities of Oxford, Cambridge, 
 and Durham to persons of any religious belief. 
 
 V. Liberty of the Press. 
 
 (V.) Liberty Of the Political privileges of the people acquired or 
 * enlarged since the Revolution, we have still to consider 
 the liberty of the Press, — 'the guardian and guide of all 
 other liberties,' ~ — and the last to be recognised 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 ; " and soon after 
 the invention of printing in the fifteenth century the 
 
 The Censor- press was placed under a rigorous censorship, not only in 
 England but throughout Europe. After the Reforma- 
 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, without 
 whose imprimatur no writings could be lawfully published ; 
 
 the peerage while continuing to profess the Jewish religion, — is Lord Roth- 
 schild, cr. 1885.— Ed.] 
 
 ; 6^ 7 Will. IV. cc. 85, 86. 
 
 - Earl Russell, Eng. Con. p. 339. 
 
 * Supra, pp. 426, 428. 
 
XV. I.] since the Revolution, 793 
 
 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 regulations 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 elsewhere than 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 only publications by the 
 Queen's printer, to be appointed for some special service, 
 or by Law-printers, for whom the license of the Chief 
 Justices was sufficient.^ Mutilation or death was the 
 penalty of those who dared to print anything which the 
 Judges might choose to construe as seditious or slanderous 
 of the government in Church or State.- 
 
 Under James L and Charles I., political and religious The Press 
 discussion was repressed by the Star Chamber with thcjamegj ^nd 
 greatest severity.^ By an ordinance of the Star Chamber, Charles I. 
 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 present 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 appren- 
 ticed thereto, was whipping, the pillory, and imprisonment. 
 
 ' Ordinances of the Star Chamber for the regulation of the Press in 1585, 
 supra, p. 487. 
 
 * St. 23 Eliz. c. 2. See the cases of Stubbe, Udal, Barrow, Greenwood, 
 and Penry, supra, pp. 476, ;/., 480. 
 
 3 Stipra, pp. 581 4. 
 
794 
 
 Progress of the Constitution 
 
 [Ch. 
 
 The first 
 newspaper, 
 the Weekly 
 Newes. 
 1623. 
 
 The Censor- 
 ship con- 
 tinued under 
 the Com- 
 monwealth. 
 
 Milton's 
 
 Areopaql- 
 
 lica. 
 
 Licensing 
 Act, 1662. 
 
 Even books which had been once examined and allowed 
 were not to be reprinted without a fresh license; 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 authorised. Yet it was during 
 this inauspicious period that the first newspaper, the 
 Weekly Newes, made its appearance, late in the reign of 
 James L ; ^ and after the aboHtion of the Star Chamber 
 (Feb. 1 640-1) tracts and newspapers issued forth in shoals 
 during the contest between the Crown and the Parliament.- 
 The Long Parliament, however, while abolishing the Star 
 Chamber, continued the Censorship of the Press ; and 
 endeavoured to silence all Royalist and prelatical writers 
 by most tyrannical ordinances, ' to repress disorders in 
 printing,' by which 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 apprehend authors, printers, and others. These pro- 
 ceedings called forth the ' Areopagitica ' of Milton, in 
 which he branded the suppression of Truth by the licenser 
 as the slaying of ' an immortaHty rather than a life,' main- 
 tained that ' she needs no policies, no stratagems, no licens- 
 ings, to make her victorious,' and nobly, but ineffectually, 
 pleaded for 'the liberty to know, to utter, and to argue 
 freely, according to conscience, above all [other] liberties.' •' 
 After the Restoration, the entire control of printing 
 was placed in the hands of the Government by the 
 Licensing Act of 1662, which, though originally passed 
 
 1 The 'Weekly Newes,' May 23rd, 1623, printed for Nicholas Bourne and 
 Thomas Archer. — May, Const. Hist. ii. 240. 
 
 2 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. — Ibid. ii. 241. 
 
 2 Milton, Areopagitica ; a Speech for liberty of Unlicensed Printing, pp. 73, 
 74. [Arber's Reprints.] 
 
xviL] since the Revolution, 795 
 
 only for three years, was continued by subsequent re- 
 newals until 1679. Printing was strictly confined to 
 London, York, and the two Universities ; the number 
 of master printers was limited, as in the ordinances of the 
 Star Chamber, in 1637, to twenty ; and no private person 
 was to publish any book or pamphlet unless it were first 
 licensed — law books by the Lord Chancellor, or one of the 
 chiefs of the Common Law Courts, historical or political 
 books by a Secretary of State, books of heraldry by the 
 Earl Marshal, and all other books by the Archbishop of 
 Canterbury, or the Bishop of London, or by the Chancellor 
 or Vice-Chancellor of one of the Universities.^ Authors 
 and printers of obnoxious works were hung, quartered, 
 mutilated, exposed in the pillory, flogged, or simply fined 
 and imprisoned, according to the temper of the Judges ; 
 and the works themselves were burned by the common 
 hangman.^ After the Licensing Act had been temporarily 
 suffered to expire in 1679, the twelve Judges, with Chief The Judges 
 Justice Scroggs at their head, declared it to be criminal at cdmtnal k. 
 Common Law to publish anything concerning the Govern- publish any 
 
 11 r ^ r - • i thing con- 
 
 ment, whether true or false, of praise or censure, without ceming the 
 the Royal license.^ All newspapers were in consequence ^o^^'^^- 
 stopped ; and the people were reduced for political in- unofficial 
 telligence and instruction to two Government publications, newspapers 
 the official London Gazette^ which furnished a scanty supply 1679. * 
 of news without comment, and the Observatory which con- 
 sisted of comment without news. In the absence of 
 newspapers, the Coffee-houses became the chief organs Their place 
 through which the public opinion of the [Capital] vented the Coffee-^ 
 itself, while the inhabitants of provincial towns, and the houses and 
 
 ^ ' News- 
 
 letters. 
 
 1 13 & 14 Car. II. c. 33. 
 
 - See the cases of John Twyn, State Trials, vi. 659 : of Keach, lb., 710 : ot 
 Harris, Smith, Curtis, Carr, and Cellier, lb. vii. 926-1043, mi, 1183; and 
 cf. May, Const. Hist, ii. 242. 
 
 •* ' 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 govern- 
 ment.' — Carr's case, 1680, State Tr. vii. 929. This monstrous opinion was 
 not Judicially condemned until 1 765, by Lord Camden, Chief Justice of the 
 Common Pleas, in the case of Entick v. Carrington, St. Tr. xix. 1030. [Cf. 
 Case and Notes in Denman's Broom's Const. Lazv, pp. 555, 609. — Ed.] 
 
79 6 Progi^ess of the Constitution [Ch. 
 
 great body of the gentry and country clergy, depended 
 
 almost exclusively on News-letters from London for their 
 
 knowledge of political events.^ 
 
 Licensing At the accession of James II., in 1685, the Licensing 
 
 ',63/^^ ^^*^' 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 thenceforth the 
 
 Finally ex- Censorship of the Press has ceased to form part of the 
 
 pired, 1695. j^^ ^^ England. It is a noteworthy fact, and a striking 
 
 example of the predominance of the practical, as contrasted 
 
 with the theorising spirit in English politics, that this 
 
 emancipation of the Press — which Macaulay did not 
 
 hesitate to declare 'has done more for liberty and for 
 
 civilisation than the Great Charter or the Bill of Rights,' ^ 
 
 — attracted scarcely any attention at the time ; and was 
 
 justified by the Commons, in conference with the Lords, 
 
 without any reference to the great principle involved, and 
 
 solely on questions of detail concerning the abuses and 
 
 inconveniences incidental to the Censorship. 
 
 The Press The Press was now theoretically free ; but in practice 
 
 free^j'^but^ it was Still subjcct to several methods of restraint. The 
 
 still subject ^^y jj^ which the summary jurisdiction of Parliament 
 
 to restranits. 
 
 was employed to check the publication of debates has 
 already been referred to, with reference to the privileges 
 of the House of Commons ; ^ and the Government also 
 made use of two other means of controlling the press — 
 (i) 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.'^ At the same time the intellectual 
 
 * See Macaulay, Hist. Eng. Ch. III. [i86i, i. pp. 389-392.] 
 
 * Macaulay, [Hist. Eng. 1861, iv. 542 J. 
 ^ Supra^ p. 775 seq. 
 
 * The first daily paper, the Daily Conranl^ was issued in 1709. 
 
XVII.] since the Revolution, 797 
 
 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 langua^^e 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 publica- 
 tions which supported the Opposition. The revival of the 
 Licensing Act was even suggested, but dismissed as im- 
 practicable ; and the Stamp duty on newspapers and Stamp Duty 
 advertisements was adopted instead, avowedly for the pur- °" ^'<^^^'s- 
 pose of restraining the Press generally and of crushing the 
 smaller papers. The first Stamp Act was passed in the 
 lOth year of Queen Anne,^ 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 four- 
 pence. At the end of George III.'s reign it was extended, 
 by one of the series of statutes known as the Six Acts,^ to The Six 
 tracts and other unstamped periodicals which, while pro- ^'^^^' 
 fessing not to be newspapers, had obtained a wide circula- 
 tion among the poor as disseminators of political news 
 and dissertations. Evasions of the Stamp Duty were 
 
 ^ 10 Anne, c. 19. 
 
 2 The Six Acts {60 Geo. III. and i Geo. IV. cc. i, 2, 4, 6, 8, 9) were a j^^j^ < C;> 
 batch of repressive measures passed at the instance of the Government, in ^^ 'iSiq 
 1819, in consequence of the disturbed state of the country. By the first (c. i) * 
 
 the training of persons to the use of arms was prohibited ; by the second (c. 2) 
 the magistrates in the disturbed counties were authorised to search for and 
 seize arms ; by the third (c. 4) defendants in cases of misdemeanour 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 ; 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 posses- 
 sion 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. & i 
 Will. IV. c. 73. 
 
798 
 
 Progress of the Constitution 
 
 [Ch. 
 
 Law of 
 Libel. 
 
 No. 45 of 
 the North 
 Briton. 
 
 Apprehen- 
 sion of 
 Wilkes and 
 others on a 
 General 
 Warrant. 
 
 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 re- 
 linquished altogether. In 1836 the stamp on newspapers 
 was lowered to \d., 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 \Z6\} 
 
 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 Government 
 under WiUiam III. and Anne ; but during the reigns of 
 the first two Georges the Press generally enjoyed more 
 toleration, Sir Robert Walpole being indifferent 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 unrepresented 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 formid- 
 able political power. A renewed conflict with the Govern- 
 ment was the natural 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 
 (Apr. 23) the celebrated No. 45 of that journal appeared, 
 commenting in severe and offensive terms on the King's 
 speech at the prorogation of Parliament and upon the 
 unpopular peace of Paris recently (Feb. 10, 1763) con- 
 cluded. By a strained exercise of prerogative a General 
 Warrant was issued for the discovery and apprehension 
 of the authors and printers (not named) of the ob- 
 noxious No. 45. Forty-nine persons, including Wilkes, 
 were arrested on suspicion under the General Warrant ; and 
 it having been ascertained that Wilkes was the author, an 
 
 » Supra, p. 599, n. 
 
XVII.] since the Revolution. 799 
 
 information for libel was filed against him in the King's 
 Bench on which a verdict was obtained.^ Released from 
 prison on the ground of privilege as a member of Parlia- 
 ment,^ Wilkes brought an action against Mr. Wood, the 
 Under Secretary of State, and obtained a verdict of i^iooo 
 damages ; ^ and four days afterwards Dryden Leach, one Leach v. 
 of the printers arrested on suspicion, gained another verdict ^S^P'' 
 with £dpo 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 Judges General 
 pronounced the General Warrant illegal, declaring that * no dedared^ 
 degree of antiquity could give sanction to an usage bad in illegal, 
 itself.''* 
 
 In the same year, 1765, an action brought by Mr. John Entickv. 
 Entick, the suspected author of the * Monitor, or British ^^^^^*^^^ ^"' 
 Freeholder,' against the messengers who had seized all his 
 books and papers under a General Search Warrant from Seizure of 
 the Secretary of State, was decided against the Government. ^qJ^^^J^JJ^ ^^ 
 Lord Camden, Chief Justice of the Common Pleas, deter- Searc/i 
 mined 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 IL, were absolutely illegal.^ 
 
 The excitement caused by the proceedings against Junius's 
 Wilkes and the printers had scarcely subsided, when the ^^^J^ ^>j^g^ 
 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 Strained in- 
 interpretation of the Law of Libel adopted by the Judges Q^the LavT 
 since the Revolution. Already, in 173 1, on the trial of one of Libel. 
 
 1 Rex V. Wilkes, 4 Burr. 2527, 2574. 
 
 2 Supra, p. 771. 
 
 3 Wilkes V. Wood, 19 State Trials, 1153. 
 
 ^ Leach v. Money, 19 State Trials, looi. [Denman's Broom's Const. Law, 
 p, 522 seq. — Ed.] 
 
 * Entick V. Carrington, 19 St. Tr. 1030 ; [Denman's Broom's Const. Law, 
 p. 555, and Note, p. 609, seq. — Ed.] 
 
8oo Progress of the Coiistitution [Ch. 
 
 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 complained 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 main- 
 tained by the Courts, (i) 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 evi- 
 dence was inadmissible, and that publication of a libel by 
 the servant was conclusive proof of the criminality of the 
 master. (2) Lord Mansfield 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 
 Trial of alleged in the indictment to mean. On the trial of Wood- 
 Woodfall fall the oriorinal publisher of the ' Letter to the King,' the 
 
 for publish- ° , ,.. . r ^ y r 
 
 ing the Jury, m order to defeat this mterpretation of the law, found 
 Jt^"^'^^^^^^^ the defendant 'guilty of printing and publishing only,'— a 
 verdict which the Court held to be uncertain, necessitating 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 Parliament ; 
 Dean of St. and the rights of Juries in cases of Libel were nobly and 
 Asaph s case, eloquently maintained by the advocacy of Erskine in the 
 Stoc'kdak's cases of the Dean of St. Asaph, in 1779, and of Stockdale, 
 case, 1789. jj^ 1789, the latter being a prosecution for publishing what 
 was charged as * a scandalous and seditious libel ' con- 
 cerning the conduct of the House of Commons in its 
 impeachment of Warren Hastings. At length, in 1792, 
 the ruhng of the Judges as to the province of Juries was 
 Mr. Fox's in effect reversed by Mr. Fox's Libel Act, which declared 
 {702^ ^^^' their right, on any trial or information for Libel, to give 
 
XVII.] since the Revolutio7t, 80 1 
 
 a general verdict of guilty or not guilty on the whole 
 matter.^ 
 
 But the signal advance made by liberty of opinion Reactionary 
 
 ,. ,,.,. /.^ TTT5 • period in 
 
 during the first thirty years of George III. s reign was growth of 
 about to receive a decided check. The proceedings of liberty o^ 
 
 ^ ° opinion, 
 
 the French revolutionists created a wide-spread terror of 1792-1832. 
 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 of the liberty 
 of opinion which cannot be said to have entirely passed 
 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 regu- 
 lation of newspapers frequently occupied the attention 
 of the Legislature. But from the year 1832, at latest, the 
 Freedom of the Press has been completely established. Freedom of 
 The utmost latitude of criticism and invective has been compfetdy 
 allowed it in discussing the actions of the Government and established. 
 of all public men and measures. By Lord Campbell's Libel 
 Act, passed in 1843, the defendant on an indictment or Lord Camp- 
 information for a defamatory libel is allowed to plead its ^^^' ^^^g'^^^' 
 truth, and that its publication was for the public benefit ; 
 and the harsh extension of the ruling in Almon's case,^ as 
 to the criminal liability of a publisher for the unauthorised 
 acts of his servants, has been altered by allowing the 
 defendant 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 
 
 ^ 32 Geo. III. c. 60. 
 ' Supra^ p. 799. 
 
 C.H. 3 F 
 
8o2 Progress of the Cdnstitution [Ch. 
 
 his part.^ 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 recognised 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.' - 
 
 We have now traced the English Constitution from its 
 germ in the free institutions of our Teutonic forefathers, 
 and have marked the course of Freedom, as it slowly 
 
 ** Broadens down from precedent to precedent," 
 
 and has finally assumed that special form of Parliamentary 
 Government under which it is our privilege to live. Amidst 
 the vicissitudes of its growth and development, during the 
 ten centuries spanned by the several dynasties which have 
 ruled us from Egbert to Victoria, its birth-right of freedom 
 has ever been maintained. Even under Tudor autocracy, 
 the external forms of Constitutional government were 
 observed ; and the heritage of liberty was thus handed 
 on to the generations yet to come, who were once more to 
 make it all-powerful in the State. The preservation of 
 that heritage has been mainly due to the combination of 
 sturdy independence, reverence for law and order, and 
 practical common sense, which so pre-eminently distinguish 
 the English people. Actuated by this spirit, they have 
 been enabled, under the guidance of some wise and great 
 Sovereigns, and of a long line of illustrious statesmen, to 
 adapt the English Constitution to the varying needs of 
 
 1 6 & 7 Vict. c. 96. 
 
 2 On Liberty of the Press see Hunt, Fourth Estate ; Andrews, Hist, of 
 British Journalism ; Hallam, Const. Hist. iii. 2-6, 166-168 ; May, Const. 
 Hist. ii. 238-379 ; Macaulay, [Hist. Eng. 1861, iv. 542-3, 603-9.] 
 
XVII.] since the Revolution. 803 
 
 successive ages, while preserving its fundamental principles ^'2 
 
 intact. The retrospect of the crises through which our 
 Constitution has safely passed, and of the dangers which 
 it has triumphantly surmounted, may well enable us to 
 look forward with confidence to a happy solution of the 
 difficulties which perhaps yet await its further development 
 in the Future. 
 
 F 2 
 
APPENDICES. 
 
 FRANK-PLEDGE, OR COLLECTIVE RESPONSIBILITY, 
 IN ENGLAND AND BOHEMIA. 
 
 Doubts appear to have crossed the mind of some recent 
 writers respecting the antiquity of this Institution, and its existence 
 in England before the Norman Conquest. These doubts were, 
 I beUeve, not present to the mind of the author of the present 
 work, and I have as yet seen no adequate reason for altering his 
 language on this point. I am content to leave Langmead's text 
 in harmony with Palgrave and Hallam, and to wait till time shall 
 shew how far the seeming hesitation of Bishop Stubbs is 
 warranted. 
 
 It is probable that the Institution is one which cannot be 
 claimed as of Teutonic origin, or peculiar to the Teutonic race. 
 That seems to arise from the fact, which has possibly escaped 
 general notice, of its existence among at least the mediaeval 
 Institutions of the Bohemian Kingdom. How far back it may 
 be traceable in this branch of the Slavonic Race, and whether it 
 may also be found in other branches, are points which have 
 probably still to be worked out, though the language used by 
 M. R. Dareste, in analysing the Codex Legiun Slavonicarum of 
 Jirecek, in the Journal des Savafits for 1885, would lead to the 
 inference of its existence as a general feature in Slav Customary 
 Law. ' The ancient Bohemian Law,' says M. Dareste, * does not 
 differ appreciably from that of the other Slav countries.' 
 
 The particular text of Bohemian Law in which it appears to us 
 that the Frank-Pledge system, or system of Collective Responsi- 
 bility emerges, is the following : — ' Pour remplacer la solidarity 
 de la famille,' says M. Dareste, op. cit.^ 1885, p. 419, ' et en 
 attendant que le pouvoir social fut assez fort pour maintenir 
 partout I'ordre et le respect de la loi, on eut recours en Boheme 
 a un moyen qui a ete employe en beaucoup d'endroits, mais qui 
 n'a jamais ete qu'un expedient ; celui de la responsabilite des 
 villages pour les crimes commis sur leur territoire. Si le 
 coupable n'etait pas livre par les habitants, chacun d'eux etait 
 condamne ^ payer 200 deniers d'amende. Un decret de Tan 
 
8o6 Appendix A, 
 
 1222 r^duit cette amende \ 200 deniers ^ payer collectlvement 
 par tout le village. I.'amende elle-meme disparait definitivement 
 \ la fin du XI I P. siMe.' 
 
 Surely this is, in principle, the same Institution as the Ten- 
 viantale or Frithborga of the Leg. Edw. Conf.^ and which both 
 Palgrave and Hallam associate with the Anglo-Saxon Polity. That 
 England took the system from Bohemia, or gave it to Bohemia, 
 would be equally remote from probability. But it is quite 
 possible that both Teuton and Slav developed it on parallel 
 lines, without any interpenetration of political ideas. And that 
 is what at present seems to me to be the most probable hypo- 
 thesis, viewing the system itself as part of the Institutions which 
 were in being at the time of the Norman Conquest, and which 
 William the Conqueror professed not to destroy but to administer 
 as Edgar or Edward had administered them. 
 
 B. 
 
 THE EARLY HISTORY OF TITHES IN WESTERN 
 
 EUROPE. 
 
 Considerable attention has lately been drawn to the question 
 of the origin and history of Tithes, and of their position among 
 the sources of revenue of the Church. Great diversity of opinion 
 is still manifested by historical and other writers, and it will only 
 be possible here to notice the subject briefly, though it seems 
 desirable not to pass it over altogether. 
 
 That Pope Gregory the Great formally instructed St. Augustine, 
 in his Responsiones (Haddan and Stubbs, Councils and EccL Doc, 
 iii., 18, 19) to the Archbishop's questions, how the Roman Church 
 provided for the maintenance of the clergy, is certain, and that 
 the division which he laid down was a quadripartite one, i7i ojuni 
 stipendio quod accedit. Of these portions one was for the Bishop 
 and his familia, or household, for hospitality and maintenance ; 
 another for the clergy ; the third for the poor ; the fourth for the 
 repair of church fabrics. This Gregory describes as the mos sedis 
 apostoliccE. But for the nascent English Church he recommends 
 the early Christian system, when no one aliquid suum esse dicebat. 
 As Augustine's query was raised regarding the disposal of the 
 altar oblations of the faithful, the stipendium of Gregory's answer 
 would seem to be, strictly speaking, confined to those offerings, 
 and not necessarily to refer at all to tithes. 
 
 But a quadripartite or tripartite division of tithes certainly pre- 
 
Appendix B. 807 
 
 vailed generally throughout the Western Empire and Western 
 Church, and it would seem that either that or its successor the 
 tripartite division, when the Bishops gave up their share, on 
 becoming possessed of landed estates, must, according to all 
 analogy, have prevailed in England. At least, the onus probandi 
 would appear to rest with those who deny such a division in 
 England. 
 
 That the original form of Tithes was that of a voluntary offering 
 scarcely seems to admit of question. That the clergy of the 
 Christian Church pressed the analogy of the Tithes under the 
 Jewish Dispensation is beyond doubt, and that Kings and Em- 
 perors legislated in their favour is equally certain. But the 
 alleged establishment of Tithes in England by Ethelwulf's grant is 
 clearly untenable. All that he appears to have done is to have 
 freed a tenth part of his private estate {teri'CE niece : Chart, a.d. 855) 
 from all secular services, and to have granted such tenth to God 
 and the Blessed Mary, and all the Saints — i.e., as would have been 
 said later, in Frank-almoigne — for the services of prayer and mass. 
 Kemble {Saxons in JEfig. ii. 484) explains this action of Ethel- 
 wulf as a * useful remedy ' devised by him, in his terror at the dis- 
 tresses of wars and the ravages of barbarous and pagan invaders. 
 The charters in which the grants of a tenth are made confessedly 
 offer many marks of doubt and spuriousness. Kemble speaks of 
 all services being discharged, ' except indeed the inevitable three ; ' 
 but the language of the grant of 855 (Haddan and Stubbs, op. cit. 
 iii. 641) expressly lays down that the lands are to be free, sine ex- 
 peditione, et pontis constructione., atque arcis munitione. The grant 
 to Winchester, however, in 854, retains the irinoda necessiias. 
 
 The writer on Tithes in the Dictionary of Christian Antiqiiities 
 argues against any general recognition of Tithes as payable Jtire 
 divino during the first three centuries of the Christian Era, and 
 says that there appears to be a distinction drawn in the Apostolical 
 Co7istitutions (4th cent.) between the Tithes payable under the 
 Law and the Oblations offered under the Gospel. It has already 
 been noted that the subject of Gregory's Responsiones to Augus- 
 tine was the disposition of the oblations made at the altar, and it 
 may be that voluntary offerings of a tenth were sometimes made in 
 this form. 
 
 From the third to the fifth century, the Did. Christ. Ant. 
 shews that there existed only a ' pious opinion ' in favour of Tithes, 
 as yet unenforced by any decree of King or Emperor. The same 
 authority seems to accept as genuine the Exceptiones of Egbert, 
 Archbishop of York, which mention Tithes in 750, and Blunt and 
 Phillimore (^^f7^ of Church Law, 1876) and Hardwick {^Church 
 Hist. Middle Ages, 186 1) also accept Archbishop Egbert's Excep- 
 tiones as part of the English canonical sources for the obligation of 
 Tithes. Bishop Stubbs, however, it would appear, doubts the 
 authenticity and value of the Exceptiones, which he seems to con- 
 
8o8 Appendix B. 
 
 sider to be of later origin, and derived from a Continental source. 
 The capitulary of Charles the Great, in 778, of course applied 
 only to the Frankish kingdom. A later capitulary, of 801, is cited 
 by Ducange, which would, if really part of his legislation, be in 
 force throughout the revived Western Empire. 
 
 The Diet. Christ. Ant. does not decide at what time parochial 
 Tithes were 'separated from the mother church' (z>., the 
 cathedral) and * affixed to the parish church.' Selden seems to 
 take it as having been after the Norman Conquest. Mr. Dibdin 
 has an interesting and valuable note on this subject in his recent 
 edition of the late Professor Brewer's Church of England {\^Z^)^ 
 in which he discusses very temperately some of the principal 
 points in the controversy, as connected with the English Church. 
 Bishop Stubbs {Const. Hist. i. 227 — 9) attributes the legal origin 
 of Tithe in England to the Legatine Councils of 787, which he 
 considers to have had the authority of Witenagemots from the 
 fact of the presence of the several Kings and Ealdormen. It has 
 been suggested, in the notes to the present edition, that these 
 Councils were in reality mixed assemblies, and that the Secular 
 and Ecclesiastical portions of their Ordinances ought to be carefully 
 separated. The Cathedral church would seem to have remained 
 the * normal recipient ' of Tithe, as Bishop Stubbs says, at least 
 down to the Norman Conquest, and perhaps later, since it was a 
 Council of Westminster of the year 1200 that first laid down the 
 ' first claim ' of the parochial clergy. It seems worth noting, in 
 this connection, that the earliest quotation for ' Dime ' given by 
 Littre, in his Dictionary, s.v., is from a twelfth century French 
 writer. Ducange {Glossarium. Paris. Didot. 1840 — 50), s.v. 
 Decima^ argues in favour of early legislation on Tithes, citing the 
 second Council of Macon, 587, and a Letter of the Bishops of 
 the Province of Tours, written after a Council held in 567, ex- 
 horting the faithful ut unusquisque ad exemplum Abrahce offer at de 
 suis mancipiis. This Letter of the Bishops of the Province of 
 Tours is clearly hortatory, and in any case, even were it a part of 
 the Acts of the Council, its force, like that of the decrees of the 
 Council of Macon II., could only be that of the Acts and Decrees 
 of a topical Council. 
 
 The Council of Macon II. was a Burgundian assembly, con- 
 voked by Gontran of Burgundy, second son of Clotaire I., and 
 was attended, inter alios, by sixteen Bishops who had been 
 deprived of their sees by the Goths. It is easy to understand, 
 therefore, that the financial support of orthodoxy must have been 
 quite as pressing a question with the Fathers of Macon as its 
 doctrinal support. Moreover, Gontran detested the Goths, of 
 whom he said that it was * a shame that the boundaries of those 
 horrible Goths should extend even into Gaul ' (Lavallee, Hist, des 
 Fran^ais. Paris. 1863. i. 127). Force of law was given to the 
 decrees of the Council of Macon II. by King Gontran's Letters to 
 
Appendix B. 809 
 
 the Bishops and Judges of his kingdom, but his power, of course, 
 could extend no further. Guizot remarks {Civ. en France. 
 Brussels. 1839. iii. 343 — 5) that it is this Council which has the 
 credit of having discussed the question whether woman has a 
 soul, which he explains as having arisen out of the contention of 
 a Bishop that woman ought not to be called ' man ' — a contention 
 abandoned by the said prelate on the rest of the Fathers pressing 
 upon him the texts from the Old Testament, ' male and female 
 created He them,' and from the New Testament those in which 
 Christ is called the ' Son of Man.' 
 
 The object of the second Council of Macon was to strengthen 
 the hands of the clergy at a time when, as its Fathers said, prce- 
 vartcatores legum pcene C/msiiani omnes ostendiiniiir. The words 
 importing payment of Tithe are quite in accordance with such 
 views of the state of the Church in Burgundy in the 6th century, 
 since, say the Fathers, referring back to the passage just cited, 
 Statuimus et decernimus ut mos antiques a fidelibus reparetur., et 
 Decimas Ecdesiastids faniulantibus ceremoniis populus omnis in- 
 ferat, quas Sacerdoies aut in pauperum usu7n, aid in captivorum re- 
 demptionem prcerogantes^ suis orationibus pace7?i populo ac saluiem 
 impetrent. It will be observed that this division is very different 
 from the ordinary division of Tithes, and that the Decree is based 
 on the assumption that there was an 'ancient custom' which it 
 was desirable, or rather necessary, to 'restore.' But the main 
 object, as in the alleged donation of Ethelwulf, is stated to be to 
 obtain for the Laity the prayers of the Clergy. 
 
 It seems not improbable that under the general terms ' ancient 
 custom * and ' oblations of the faithful,' a claim was gradually 
 advanced, as of right, to a payment, which may sometimes have 
 actually amounted to a Tithe, but which was voluntarily made, in 
 the early ages of the Western Church, at the customary times of 
 Liturgical oblation. In the present day, it is apparent from their 
 language that many of the clergy of the Church of England are 
 persuaded that they have a jus divinufn, not only to the praedial 
 Tithe, or Tithe of Increase, but also to the personal Tithe, or 
 Tithe of Income. 
 
 The historical facts brought together in this Note do not appear 
 to the writer to support such a theory. 
 
 It has come to the present Editor's notice, in the course of 
 further researches, that Tithe was taken during the Middle Ages 
 from very varied sources, and, inter alia, from some which it is 
 difficult to recognise as open to Christian men, and least of all to 
 the Clergy. In 866, the Bishop of Utrecht took Tithe of Wreck, 
 as appears by a contemporary document cited by Benfante, // 
 Salvamenio e PAssistenza nel Diritto Marittimo. Turin. Rome. 
 Florence. Loescher. 1889. p. 21. At the same period the 
 Custumal of Zealand, Ch. X. § 13, cited by the same writer, 
 shews that ihe Count took all the goods salved. It may be pre- 
 
8io Appendix B. 
 
 sumed that the Bishop took his Tithe when he could get it. But 
 that would hardly be satisfactory to clergy who put the duty of 
 giving the Tenth to what they call God's service in so crude a 
 fashion that they tell children that when a child has a half-crown 
 given to it as pocket-money, the sum of threepence out of that 
 ' belongs to God/ which, being interpreted, clearly means that 
 so much should be put into the Offertory of the Church of the 
 Parson inculcating this doctrine, before the child can be 
 allowed to feel that its Alms-giving has begun. For it is very 
 distinctly laid down by Anglican preachers of the Tithe that 
 Charity, or Alms-giving, can only be said to begin after the Tithe 
 has been paid. But it is not at all clear that the Parson laying 
 down this doctrine would be satisfied to know that the duty to 
 God, as he puts it, had been paid at the Mother Church of his 
 Diocese, though it is clear that the Bishop, and not the Parish 
 priest, was the original channel alike for the payment and the 
 distribution of Tithe. 
 
 C. 
 
 THE CONVOCATIONS OF CANTERBURY AND YORK. 
 
 The early history of the Convocations of the Provinces of 
 Canterbury and York, and of their relations with the Great 
 Council of the Nation and subsequently with the Houses of 
 Parliament^ must be admitted to be still surrounded with much 
 obscurity. But in view of the important step recently taken in 
 the constitution of what is called a '* House of Laymen," as 
 ancillary to the Convocation of the Southern Province, it seems 
 desirable to note briefly such conclusions as the present writer 
 has been able to form on this difficult subject. 
 
 To distinguish accurately the relations on the one hand to 
 a Provincial Synod, on the other to the Great Council or 
 Parliament, of the early meetings of what is assumed to have 
 been Convocation, vaguely described as Co?igregaiiones, &c., 
 would be impossible in the space and time at disposal here. 
 That some, at least, of these meetings were of a mixed 
 character, partly Ecclesiastical, partly Lay, is highly probable. 
 That after the Norman Conquest, assemblies of the Clergy 
 were summoned for the purpose of taxing their own order, and 
 that when so assembled, they often shaded off into purely Eccle- 
 siastical Synods or Convocations, is equally probable. That we 
 can now distinguish all the varying shades of Ecclesiastico- 
 political character which may rightly have attached to such 
 
Appendix C, 8ii 
 
 assemblies seems doubtful, and the discussion of the question 
 would be necessarily lengthy. The ordinary clerical view- 
 appears to be that the Convocations are the " Sacred Synod of 
 this Realm," and the *' Church of England by Representation." 
 But this language is often used of the Convocation of Canterbury 
 alone, in which case it is clearly inaccurate, since the National 
 Synod, or " Synod of this Realm," must be made up, if at all, 
 of the two Convocations, or Provincial Synods, if such they be, of 
 the Provinces of Canterbury and York. With regard to the 
 claim of the two Convocations, when in communication with each 
 other, to constitute together the *' Church of England by repre- 
 sentation," as is asserted by the late Rev. J. H. Blunt, in his 
 Dictionary of Doctrinal and Historical Theology (2nd ed. 1872), 
 it may be remarked that even as regards the Clergy this 
 " representation " is obviously imperfect, and that as regards the 
 Laity, they would appear, constitutionally, to form no part of 
 Convocation in either Province. It would be, it is apprehended, 
 ultra vires, so to affiliate the new " House of Laymen " to the 
 Convocation of Canterbury as to give its members the character 
 of members of Convocation, and it is further apprehended that 
 such action would be unconstitutional, or at least extra-constitu- 
 tional. The Constitutional theory that Parliament represents 
 the Laity of the Church of England has doubtless suffered very 
 violent shocks, and it may be desirable that it should be altered 
 so as to bring it into closer conformity with actual facts. But, 
 in any case, Parliament has had nothing to do with the creation 
 of the new " House of Laymen,"' It may be said, perhaps, that 
 the House of Laymen is not attached to the Convocation of 
 Canterbury; but, if so, it is difficult to see of what body it 
 purports to be a " House." The name certainly appears to 
 connote a third House of Convocation, additional to the 
 Constitutional Upper and Lower Houses. It is true, of course, 
 that the Archbishop of Canterbury has, in his opening address 
 to the new " House," affirmed that " the ancient and actual 
 constitution of Convocation undergoes no shade of alteration 
 by the existence of this House." {Church Review, 19th Feb., 
 1886.) But the more this is insisted upon, the greater seems to 
 be the difficulty of ascertaining the precise character and powers 
 of the new " House." The difficulty itself is too new to be as 
 yet much felt by any one. But it is likely to grow with the 
 growth of the House, and it may be noticed that already members 
 of the House of Laymen have protested against the idea that 
 they "merely represent" the Diocesan Conferences. {Church 
 Review, ut supra.) It is probable that they will ultimately arrive 
 at the honest conviction that they are the " Laity of the Church 
 of England by Representation," just as it is claimed for the two 
 Convocations that, when in communication — a very rare event — 
 they are the " Church of England by Representation." It seems 
 
8i2 Appendix C, 
 
 worth noting that in so far as the House of Laymen has a repre- 
 sentative character, its members can only be considered to be 
 representative of the several existing Diocesan Conferences. 
 From the Diocese of Worcester, where no Conference has as yet 
 been assembled, no members have been sent up to sit in the House 
 of Laymen. But it is to be observed that this representation 
 itself is only indirect, since the Diocesan Conferences are them- 
 selves only informal, auxiliary assemblies, and not Legally or 
 Ecclesiastically the equivalents of Diocesan Synods. They may 
 pave the way for Synods of the Future, or they may ultimately be 
 retained alongside of Synods, when constituted, as useful bodies 
 for the general discussion of questions of a mixed character, 
 partly Ecclesiastical, partly Social, such as are brought before 
 Church Congresses in this country. That the Lay members of 
 Diocesan Conferences are, in any real sense, representatives of 
 the Laity of their respective Dioceses, the present Editor is unable 
 to see. They are certainly not such representatives as the Lay 
 Delegates sent up to a German, Austrian, or Swiss Old Catholic 
 Synod, and not even so representative as the Lay Delegates sent 
 up to an Old Catholic Congress. \n any case, the elective 
 and representative elements in the new House seem to be 
 weak, at their best, and they are still further weakened by the 
 importation of a totally different element, that of nomination, 
 — a certain number of the members of the House of Laymen being 
 nominated by the Archbishop of Canterbury. 
 
 It is asserted, on one hand, that the Convocations of the two 
 Provinces are Provincial Synods ; but it is admitted, on the other 
 hand, and the admission was made by the present Primate of All 
 England in his opening address to the House of Laymen, that 
 Convocation itself ''might unawares cease to exist." Short of the 
 destruction of an entire Church, such a fate could surely not 
 befal a true Synod, though it might conceivably befal a Convoca- 
 tion of Clergy whose original function of self- taxation had ceased 
 to be required of them, as being otherwise provided for. It is, 
 no doubt, true enough that a Synod, whether Diocesan or 
 Provincial, may, through neglect, or the antagonism necessarily 
 existing between Absolutism and Constitutionalism, cease to be 
 summoned for a while, and even for a long while. This has un- 
 doubtedly happened in cases known to the present writer in 
 Italy, where he has been personally acquainted with clergy who 
 have told him that no Synod of their Diocese had been summoned 
 within their knowledge, covering at that time nearly half a century. 
 But such historical Synods are only dormant : they have not 
 ' unawares ceased to exist.' A similar dormancy had long 
 befallen the Sy nodical action of the Church of Utrecht : but a spirit 
 of revival has sprung up, and the long silent Constitutional Vox 
 Eccksice has again begun to speak in Holland. It is possible, of 
 course, that the Convocations of Canterbury and York may 
 
Appendix C, 813 
 
 combine two characters, and be, in fact, Convocations from one 
 point of view, Synods from another. But this is, to say the least, 
 not clear. It might, however, become a question worth consider- 
 ing whether a real Synod might not be formed, to sit as such, 
 outside the session of Parliament and of Convocation, and with 
 the members of the House of Laymen as Lay Delegates sent up 
 to such Synod. At present, though there is one National Church, 
 that Church has not a National Synod. This deficiency was ad- 
 mitted and regretted by the present Primate of All England, in 
 his address to the House of Laymen, and His Grace at the same 
 time expressed grave and, it is believed, well founded doubts 
 whether the existing historical Convocations of the two Provinces 
 could be so united into one body as to form such a National 
 Synod. It is submitted that the two Convocations could not be 
 so united, without the concurrence of Parliament, and, under 
 present circumstances, it must be considered very doubtful how 
 far such concurrence would be given. It may well be considered 
 an evil that while the Consiitutional theory remains the same, and 
 the Bishops in the House of Lords, and the Knights and 
 Burgesses in the House of Commons, are supposed to represent 
 the Clergy and Laity of the Church of England in Parliament, 
 the House of Commons has drifted so far from the position which 
 formerly entided it to speak for the Laity that the Constitutional 
 theory has become an anachronism. The new House of Laymen 
 will not remove this anachronism, but its institution may be the 
 germ of some much-needed reforms suggested by the Primate in 
 the far-reaching language of his opening address to the House. 
 His Grace admits that the existing constitution of the Convoca- 
 tion of Canterbury itself needs reform, and some may regret that 
 such internal reform had not preceded the institution of the 
 House of Laymen. The present writer, having himself, now some 
 fourteen years ago, witnessed and participated (as amicus curice) 
 in the deliberations of both Regional and National Synods, in 
 the Christian Catholic Church of Switzerland, in which the Laity 
 were a constituent part of the assembly, by direct parochial 
 election throughout the Church, can only express his hope that 
 the limited and tentative measure of Reform which the year of 
 grace 1886 saw initiated in the English Church, may lead to the 
 careful consideration of the whole question of the real Eccle- 
 siastical status of the Convocations of Canterbury and York, and 
 of the true relation of the Laity to Diocesan and National 
 Synods. 
 
8 14 Appendix D. 
 
 D. 
 
 Dr. STANDISH AND CONVOCATION, /. Hen. VIII. 
 
 The case of Dr. Standish and Convocation, very briefly noticed 
 in the author's text, p. 430, seems worth some further notice 
 here, as illustrating the attitude of the Convocation of Canterbury 
 during the last days of the Mediaeval period of English History, 
 alike towards the State and the Clergy. 
 
 The question primarily raised was the old and constantly 
 recurring Mediaeval claim of the immunity of clerks, i.e.y of all 
 persons who had received tonsure, from the jurisdiction of the 
 King's Courts. The right to this immunity, shewn in Court by 
 establishing the clerkly power of reading, was known as benefit of 
 clergy, and the circumstances under which it was claimed at a 
 late period in the Middle Ages are sometimes very curious. 
 Thus in a case recently analysed in the American Law Review^ 
 as a specimen of the cases in the Year Books, the same party in' 
 a cause is found at one time claiming to be a clerk, and at 
 another time claiming to be a knight, and allowed by the Court 
 to substitute the one claim for the other, though not without 
 some delicately caustic remarks per Curiam. 
 
 Dr. Standish would appear not himself to have raised the 
 point so long at issue between Church and State, as might 
 perhaps be most naturally gathered from Langmead's text, but 
 simply to have given an opinion, when called upon, as one of 
 "divers divines" with whom the King took counsel at Black- 
 friars, in the matter of the claims put forth by the Abbot of 
 Winchcombe in a sermon at Paul's Cross, denouncing the Act 
 passed 4 Hen. VIII. c. 2, depriving murderers, robbers of churches, 
 and housebreakers, of the benefit of clergy, unless they were in 
 Holy Orders, as against the Law of God and the liberties of the 
 Church. The Abbot further proceeded to assert that all the 
 Lords who were parties to that Act had incurred the censure of 
 the Church, and that all clerks who had received any manner of 
 tonsure were exempt from temporal punishment, />., it may be 
 presumed, at the hands of the King's Courts, for the Abbot 
 would no doubt have maintained the prisons of the Bishops, and 
 the punishments of the Canon Law, for he fortified his position, 
 we are told in Keilway's Reports, by the citation of a Decretal. 
 
 Dr. Standish, in the Conference of Divines at Blackfriars, 
 maintained that the Act impugned was " not against the liberty 
 of the Church, as it was for the weal of the whole Realm." A 
 passage of arms on the force of certain Decrees then appears to 
 have taken place between Standish and a Doctor on the other 
 side, and finally, " the Lords, who had heard both sides," thus 
 
Appendix D. 815 
 
 certifying to the important and formal character of the Blackfriars 
 Conference, "desired certain Bishops to cause the Abbot to 
 make open renunciation of what he had said at St. Paul's. But 
 the Bishops refused, saying they were bound by the Law of the 
 Church to maintain the Abbot's opinion; and so the matter 
 rested until Michaelmas term." 
 
 In Michaelmas term, 7 Henry VIII. , the next step in the 
 proceedings was taken by the Convocation of Canterbury, which 
 summoned Dr. Standish to appear and answer the following 
 articles : — 
 
 " I, Whether it was lawful for a temporal judge to call clerks 
 before him. 
 
 " 2. Whether first [/>., minor] orders are sacred. 
 " 3. Whether a constitution by the Pope and Clergy binds a 
 country where the usage has been to the contrary. 
 
 " 4. Whether a temporal prince can restrain bishops who refuse 
 to punish etc." 
 
 The above text of the interrogatories administered to Dr. 
 Standish is printed from the Calendar of State Papers, For. 6^ 
 Dom.,Hen. VIII., Vol. II., Pt i. (1515— 18), No. 13 13, where 
 it is inserted by the Editor, the late Prof. Brewer, from Keilway's 
 Reports, 180. It seems right here to guard against the possible 
 misapprehension of the value of Keilway as an authority for this 
 case, to which a note by Prof. Brewer, op. cit. p. 351, might give 
 rise. It would seem that Prof. Brewer was misled by the date 
 of Keil way's Editor, Mr. Serjt. Croke, and supposed Keilway 
 himself not to have lived sufficiently near the time of the case to 
 be an authority. I am indebted to Mr. Luke Owen Pike, M.A., 
 the present learned Editor of the Year Books, under the Master ot 
 the Rolls, for a very clear refutation of this error, in a recent 
 letter in which he kindly put together for me the following data, 
 which I gladly quote. " Robert Keilway was Reader at the 
 Inner Temple in the year i Edw. VI. He was Serjeant-at- 
 Law in 6 Edw. VI., Treasurer of the Inner Temple in 5 «& 6 
 Phil. & Mary, and one of the Gubernatores of the Inner Temple 
 in I Eliz., and again in 8 Eliz. How much longer he lived I do 
 not know. But it is obvious that a lawyer who was Reader at 
 the Inner Temple in i Edw. VL, could not then have been a 
 child, and that he must have lived and studied law in the reign 
 of Henry VIII." With regard to Prof. Brewer's language, in his 
 editorial note, op. cit., p. 351, where he says, "To what authority 
 Keilway, who lived in the reign of Elizabeth, was indebted for 
 this report, I have not been able to ascertain ; " Mr. Pike appositely 
 suggests that Prof Brewer may have mistaken the date of 
 Keilway's Editor, Croke, for Keilway's own floruit, in which case 
 his doubts would be intelligible. As a matter of fact, however, 
 Prof. Brewer was clearly in error as to Keilway's date, and the 
 Reports come to us, as Mr. Pike forcibly says, with the double 
 
8] 6 Appendix D. 
 
 authority of Keihvay himself and of Croke, **who thought 
 them specially worthy of publication." Whether, as Prof. Brewer 
 held, Keilway's report of the case is "hardly reconcileable," with 
 the next document (1314) printed by him in the Calendar, is 
 another question, but it is not one which affects the authority of 
 Keilway so much as the truthfulness of the account of the case 
 given by Convocation in answer to " the charge of having called 
 before them Prior Standish, D.D., for giving of counsel to the 
 King's Grace, as well by words as by writing, in certain causes 
 depending, in variance concerning the laws of God and of his 
 Church" {pp. cit. No. 1314, p. 353). The answer of Convocation 
 (i) flatly denies the charge, and professes that Standish had long 
 since laid himself open to the suspicion of heresy, thereby 
 implying that they summoned him on such a charge. 
 
 (2) To the charge of having ministered to btandish in the 
 Convocation certain articles contrary to the King's prerogative, 
 they also oppose a flat denial, with the expression of hope that 
 they shall not be punished " on any such sinister information," 
 which seems to leave a doubt open whether the '• information ' 
 was not, after all, true. 
 
 (3) They further declare, by a somewhat subtle mode of 
 defence, that no articles were delivered to Standish in writing, 
 although they were conceived in writing. This seems a practical 
 confession of the truth of one charge. 
 
 (4) In the matter of certain articles said to have been ministered 
 to l3r. Standish in Convocation, "specially that clerks should 
 not be convented before lay judges," they aver that they never 
 held any such communication with him, taking the contemptuous 
 line that "if it was the thing that needeth any reformation, 
 yet the said prelates well perceived that it could nother be 
 holpen nor hurted by the said friar." They then hope that if 
 they had " said in the Convocation House that the conventing or 
 punition of clerks should not appertain to secular judges," they 
 do not think that they would have fallen thereby *'into any 
 penalty of any law, statute, or act." And they proceed to bring a 
 tu quoque against Parliament for speaking " divers and many things 
 not only agamst men of the Church and against the laws of the 
 Church, but also sometime against the King's laws, for the which 
 neither the King, nor the prelates of the Church have punished 
 them, nor yet desirelh any punishment for their so speaking. 
 Wherefore, the said prelates thinketh that it may be as lawful to 
 them in the Convocation House to common and treat of things 
 concerning both laymen and also the laws of the land (though sa 
 they do not) without falling into any penalty of any statute or 
 act, or yet any other punishment in that behalf, as it is for them of 
 the Parliament to common and treat of any causes sownyng 
 against the Clergy and laws of the Church." 
 
 This reply, which is at cnce laboured and subtle, embodies a 
 
Appendix E. 817 
 
 distinct claim on the part of the Southern Convocation to act 
 ultra vires, if it so chose, and it seems, therefore, to give a special 
 importance to the case of Dr. Standish. The language of Con- 
 vocation practically claims both swords for the Church. So 
 Boniface VIII. claimed to be Caesar as well as Pope. 
 
 COUNT CAVOUR ON FREEDOM OF THE PRESS. 
 
 A SPECIAL interest naturally attaches to the opinions expressed 
 on so important a subject by those who have guided the helm of 
 the State in other countries than our own. I therefore take this 
 opportunity of submitting the striking testimony to the value of 
 Freedom of the Press, borne by one of the most illustrious 
 Statesmen of recent times, the late Count Cavour. 
 
 Speaking in the Subalpine Parliament, in the Chambers of the 
 then Kingdom of Sardinia, in 1852, at a time when modifications 
 of the existing Press laws tending to restriction were being pro- 
 posed. Count Cavour gave a brief but forcible summary of the 
 effects of repressive Legislation as contrasted with Freedom, 
 which I reproduce from his speech of 5th Feb., 1852, as printed 
 m II Conte di Cavour in Farlafnenfo, edited by I. Artom and 
 A. Blanc (Florence. Barbera. 1868). Commencing with the 
 position of affairs in Italy after the disaster of Novara, Cavour 
 shewed that the failure of the attempt at freeing Italy in 1848 had 
 exercised some influence on the continuance of a Republican 
 party, which, in some instances, went to great lengths in the 
 public expression of its doctrines through the Press. In Cavour's 
 opinion, that party would have been much more formidable than 
 he considered it to be at the date of his speech, if the Govern- 
 ment had consented to use repressive measures. In France and 
 in Belgium, he pointed out, the Press, after 1830, enjoyed ample 
 liberty. In both countries the Press abused this liberty. It met 
 with a different treatment in the two countries. In France, after 
 the Fieschi attempt, measures restrictive of freedom, known as 
 the September Laws, were passed. In Belgium nothing of the 
 kind was done. 
 
 in France, the result was that instead of talking op2nly of 
 
 Republics and Revolution, carefully veiled and ambiguous phrases 
 
 were used, but the doctrines which the Government had sought 
 
 to suppress were all the more surely spread abroad, and the 
 
 c.H. 3 G 
 
8i8 Appendix F. 
 
 Republican party increased in volume in France, while in Belgium 
 it dwindled, and finally vanished altogether. 
 
 On a minor detail connected with this question, that of im- 
 posing by law the obligation to sign articles in the Daily Press, 
 it may not be uninteresting to record that Count Cavour cited 
 with approval the example of our own country. Entirely opposed 
 from conviction to compulsory signature, he contrasted the cases of 
 France and England, saying that when the French Assembly 
 desired to restrict the freedom of the Press, it found no more 
 efficacious measure than compulsory signature. In England, he 
 said, such a measure had never even been proposed, and the 
 English Press enjoys an importance never reached by that of 
 France. 
 
 F. 
 
 SOME ANALOGIES BETWEEN THE POLITIC A.L 
 AND ADMINISTRATIVE INSTITUTIONS OF 
 HUNGARY AND ENGLAND. 
 
 Analogies between Teutonic and non-Teutonic institutions 
 have already been presented to the reader in these Appendices, 
 on the ground that they may not improbably be found to suggest 
 relations either hitherto unsuspected, or not sufficiently considered, 
 between Aryan and non-Aryan institutions. 
 
 There exist certain at least superficial resemblances between the 
 administrative system of the kingdom of Hungary and our own 
 County institutions, to which attention was drawn in i\\q Jour?ial oi 
 the British Archseological Association for Sept, 1872, in an interest- 
 ing paper by Mr. Augustus Goldsmid, F.S. A. In this paper it was 
 pointed out that the Parliamentary system of Hungary is, and has 
 been from early times, Bi-cameral, consisting of a House of Mag- 
 nates and a House of Deputies. It was also noted that the 
 County, or Comitate forms an important feature in the Hungarian 
 administrative system, the whole kingdom being divided into fifty- 
 two counties, each administered by a Comes suprefuvs^ answering 
 to our Lord-Lieutenant, and whose appointment is likewise now 
 vested in the Crown, but was formerly elective, and vested in the 
 freemen of the county. Some of these Coniites siipreini are still 
 hereditary, as Lords- Lieutenant, in some cases, formerly were in 
 England. 
 
 There is a Vice-comes, or sheriff, in whom the executive portion 
 of the judicial ofl^ce is centred. The appointment is elective, and 
 
Appendix G. 819 
 
 vested in the freemen of the county in Quarter Session ( Congre- 
 gatio) assembled. The Congregationes^ translated Quarter Ses- 
 sions by Mr. Goldsmid, are held quarterly, and are presided over 
 by the Comes supremus, attended by the Vice-co??ies and his 
 deputy. They are attended by all freemen possessing land, the 
 clergy of all Rites, and those entitled in old Hungarian law to the 
 appellation hono7-atiores, or persons following what may broadly 
 be called the learned professions. The Congregationes^ so con- 
 stituted, discuss all non-religious County affairs, including the 
 estates of orphans, who are considered in Hungary to be the 
 wards of the County. 
 
 It is a somewhat curious historic coincidence that the * Golden 
 Bull' of Andrew III., called by Mr. Goldsmid, as by Dean 
 Milman, the ' Magna Charta of Hungary,' is practically contem- 
 porary with Magna Charta, being only a few years later in date. 
 
 G. 
 
 THE MONARCHICAL PRINCIPLE IN THE 
 CONSTITUTION OF THE U.S.A. 
 
 Sir Henry Maine has pointed out, in his interesting volume on 
 Popular Government (Lond. 1885), that although references to 
 the British Constitution in the writings of the framers of the 
 Federal Constitution of the United States are infrequent, its 
 principles must nevertheless have been present and even familiar 
 to persons who had themselves been born and had lived the 
 greater part of their lives as British subjects. 
 
 There is therefore nothing surprising in the fact that a distin 
 guished American Jurist, the late Hon. William Beach Lawrence, 
 should have devoted an article in the North Afnerican Review 
 (New York. D. Appleton & Co.) for Nov., 1880, to the con- 
 sideration of the ' Monarchical Principle ' in the Constitution of 
 the United States. As this article, which the present writer 
 received from its distinguished author, may well be unknown 
 to most of the readers of this History, some extracts from it will 
 probably not be unacceptable. 
 
 Very early in his statement of the subject under discussion, 
 Mr. Beach Lawrence quotes Webster as saying that *' the Revolu- 
 tion of 1776 did not subvert Government in all its forms. It did 
 not subvert the local laws and local legislation." How this local 
 legislation was enacted Mr. Lawrence shews by recalling the fact 
 
 3 Cx 2 
 
820 Appendix G. 
 
 that before the Revolution, and " while the states were still English 
 colonies, there existed in each Province a Legislature composed 
 of two Chambers. The House of Representaiives was in all cases 
 elected by the inhabitants, though in the greater part of the 
 colonies the Upper House, as well as the Governor, who exer- 
 cised, with or without a Council, the executive power, were 
 named by the Crown, or by proprietors residing in England, to 
 whom, in some of the provinces, had been accorded almost 
 sovereign rights. At the epoch of the Revolution these Govern- 
 ments were replaced by Constitutions adopted by the people, and 
 based on their ancient usages. Governors and Councils and 
 elective Senates were substituted for the officers named by the 
 King or by the proprietors." 
 
 How abiding was the influence of the Constitutional relation of 
 the several States with the mother country is strikingly proved by 
 the circumstance that Connecticut " preserved her government as 
 established by the charter of Charles W. till i8t8, and Rhode 
 Island hers till 1842." And it is worthy of note that in those 
 two States the Popular element was the most strongly developed 
 in the administration, for in both "the inhabitants had always 
 selected the Governors as well as the two branches of the 
 Legislature." 
 
 As regards the question of State sovereignty versus Federal 
 Sovereignty, Mr. Beach Lawrence quotes the opinion pronounced 
 by the Supreme Court of the United States in 1796, to the effect 
 that "the powers of Congress, such as were exercised by them 
 from their first meeting till the ratification of the Confederation 
 in 1781, were in themselves revolutionary powers. The separate 
 States retained all the rights ot internal sovereignty, while Congress 
 possessed all the rights of external sovereignty." The relation 
 between the several States and the Federal Power in Congress is 
 thus defined by the Articles of Confederation, as adopted in 1781, 
 after the adhesion of Maryland, and which became thenceforward, 
 as Mr. Lawrence says, universally obligatory ; each State retains 
 "its soveieignty, freedom, and independence, and every power, 
 jurisdiction, and right, which is not by this Conlederation 
 expressly delegated to the United Stales in Congress assembled." 
 
 " Congress," Mr. Lawrence goes on to shew, "had not merely 
 ordinary executive and legislative powers, but had authority to 
 create courts of prize, and to constitute tribunals to settle conflict- 
 ing claims as to boundaries of Siates, and as to titles derived from 
 different States. As regards foreign relations, the Articles [of 
 1 781] accorded to the United Staits in Congress assembled the 
 greater part of the powers granted to the l^ederal Government by 
 the present Constitution, including the right and power of de- 
 ciding alone and exclusively on the subject of peace and war, 
 except in the case of invasion, the sending and receiving of 
 ambassadors, and of entering into treaties and alliances." 
 
Appendix G. 821 
 
 The Monarchical principle, as represented in the American 
 President, to an extent, it may be remarked, whicli seemed 
 extraordinary to Larochefoucauld, in 1789, when the President 
 was, ex hypothesis re-eligible for life, had perhaps a narrow escape 
 of being monarchical in name and in the character of trans- 
 missibiUty, for Mr. Lawrence states that Jefferson, " on his arrival 
 from France to assume the duties of Secretary of State under 
 Washington, found the sentiments of the more wealthy or aristo- 
 cratic classes to be in favour of an hereditary monarchy." In this 
 connection it may not be uninteresting to mention that a similar 
 sentiment has lately found expression in the United States, though 
 whether it is ever likely to be adopted as the expression of the views 
 of a party in the United States, cannot yet, as far as I am aware, 
 with any safety be forecasted. Still, there is something sufficiently 
 remarkable to European notions, in the fact of the suggested 
 possibility of an American monarchy made in a pamphlet entided 
 The Kingdom^ by Frederic Gregory Forsyth (Charlottesville 
 Chronicle Press. 1884), to call for mention in these pages. 
 "With an hereditary President," says Mr. Forsyth, "the constitu- 
 tion of the United States is the best yet." The American Republic 
 itself Mr. Forsyth regards as having been formed from the " best 
 elements " that Royalty had previously preserved, and which had 
 taken part in the struggle for " a constitutional representation of 
 the colonies in the British Government until the rupture between 
 the two portions of the empire was so great as not to be closed." 
 
 On the powers of the President, Mr. Forsyth seems to take a 
 view very similar to that of Mr. Beach Lawrence. " The powers 
 of the President of the United States," says Mr. Forsyth, " are 
 greater than those of the Queen of Great Britain, and by far than 
 were those of Queen Ann [of Austria]'s Government in France." 
 
 The magnitude of the office of the President was emphasised 
 by John Quincy Adams, when he said, citing and commenting 
 upon the language of the Federal Constitution, " The executive 
 power shall be vested in a President of the United States of 
 America," that " the establishment of justice in the intercourse 
 between the nation and foreign powers was thus pre-eminently 
 committed to the custody of one man ; but that man was George 
 Washington." The exactness of Mr. Adams's conception of the 
 creation of the office for the man is borne witness to, says 
 Mr. Lawrence, by the concurrent testimony of his contemporaries, 
 with many of whom, it is interesting to remark, Mr. Beach 
 Lawrence states that he himself was *' in early life brought into 
 frequent contact." 
 
 It may perhaps be questioned whether this " creation of the 
 office for the man " was either a scientific, or, broadly speaking, a 
 safe process of Constitution building, though it reflects the 
 highest possible honour on the memory of George Washington. 
 
 Some of my American critics have seemed to me to misunder- 
 
82 2 Appendix G, 
 
 stand the scope of this Appendix. I have not, as far as I can see, 
 misunderstood the Constitution of their country : I have simply 
 brought out a feature upon which a distinguished American 
 Jurist thought it worth while to dwell at some length, and which 
 some Americans appear to regard as worthy of further develop- 
 ment. That the framers of the American Constitution made no 
 pretence of evolving out of their inner consciousness a brand-new 
 Constitution, but that, on the contrary, they were, in a broad 
 sense, admirers, and even imitators, of the British Constitution, 
 does not, it is submitted, admit of a doubt. What would seem to 
 have been the case is that they, perhaps not unnaturally, rather 
 exaggerated the influence then pertaining to the Monarchical 
 principle, which they imagined to be more powerful than it really 
 was. 
 
 The American statesmen failed to see that ' the Monarchical 
 feature was,' as Mr. Arthur Hassall puts it, Efig. Hist. Rev.y July, 
 1890, 'rapidly passing away.' At the same tniie, the apparent, 
 and actual, personal influence of George III. was so great that the 
 framers of the American Constitution may well be excused for 
 having supposed it greater even than it was, and also more per- 
 manent. They made their President, during the tenure of his 
 office, in some respects more powerful than the King whose 
 allegiance they had thrown off. They probably thought that to 
 create a person with more than Kingly power, but without the 
 obnoxious name, was a stroke of high policy, and this their creation 
 may have been and niay yet be a powerful factor in American 
 Politics. If that had been all which the framers of the American 
 Constitution had accomplished, it might well be doubted whether 
 it was worth while to have spent so much in men and in money 
 to establish so close an imitation of a declining Old World power. 
 But, in fact, they did much more than this : they, far more truly than 
 Canning, called into existence a New World to redress the balance 
 of the Old, and, so doing, they laid the foundations of a great 
 Political building, for the construction of which they deserve to be 
 held in high honour. 
 
Appendix H, 82 
 
 J 
 
 H. 
 
 CHURCH AND STATE IN ENGLAND IN THE 
 TWELFTH CENTURY. 
 
 The relations of Church and State in this country during the 
 Twelfth Century were more than usually complicated, alike by 
 differences between the members of the English Episcopate them- 
 selves, and by the fluctuations in the attitude of the Popes towards 
 the Archbishops of Canterbury, depending upon their own varying 
 fortunes in the great parallel conflict between the Papacy and the 
 Empire. It is obvious that Becket was greatly hampered alike by 
 the non-adherence to his views of some of his principal suffragans, 
 and by Papal tergiversation. That he despised both Pope and 
 suffragans when they did not support him is clear, and probably 
 enough the Pope came in for the largest share of his contempt. 
 What Becket fought for seemed of doubtful value to a fairly large 
 number of his Episcopal brethren. The Church, therefore, had the 
 disadvantage of being as a house divided against itself. This, of 
 course, is not a feature special to England, but is common to the 
 struggle between Church and State as it raged on the Continent 
 as well as in England during the war of the Investitures. The 
 violence of English Kings and of Roman Emperors alike did the 
 greatest harm to their side in the controversy. Becket slain 
 became St. Thomas of Canterbury, and a far more powerful 
 weapon in the hands of the Papacy than Becket living, usually a 
 source of difficulty alike to Pope and to King. The question 
 what Becket really gained for the Church is one to which various 
 answers have been given. It appears to the present Editor that 
 the only real gains to the Church were those which St. Ansehn 
 obtained for it, although even in his day the English Episcopate 
 were not unanimously on the side of the Primate. Becket appears 
 in fact to have gained no point for the Church, except perhaps his 
 infinitely greater utility to Alexander III. as a ' Martyr ' than as 
 a living, querulous Primate, difficult to support without provoking 
 a King's enmity. 
 
 Anselm, on the other hand, really obtained all that he fought 
 for, since after his time no man could think that the ring and staff 
 of the Bishop were held, like the sword, from the King's hand. 
 The compromise effected clearly distinguished between the tem- 
 poral and the spiritual aspects of the Bishop, as at once a great 
 officer of the Church and of the State. 
 
 Becket's opposition to the Constitutions of Clarendon was 
 perhaps unavoidable, yet the Constitutions, in themselves, appear 
 to have been in the main a statesmanlike attempt at a solution of 
 the always difficult problem of the relations of Church and State. 
 
824 Appendix /. 
 
 And if the Primate would have received them, his suffragans gene- 
 rally would have raised no objections, though it is perhaps scarcely 
 probable that the Papal approval would have been given, for the 
 obvious tenor of the Constitutions was to have questions arising 
 within the English Church settled in England, by agreement 
 between the King and the Primate, without calling upon a foreign 
 Prelate to intervene, and this was a solution which would have 
 commended itself to the English national feeling, among the 
 clergy no less than among the laity, though at least proximate to 
 Heresy in the eyes of the Papacy. 
 
 THE CONSTITUTIONS OF CLARENDON AND THE 
 COURT OF THE ARCHBISHOP OF CANTERBURY. 
 
 The Constitutions of Clarendon, against which Pope and 
 Primate alike fulminated, seem to the present Editor to have a 
 practical interest, if not actually a practical bearing, in matters of 
 controversy at this day, and it therefore appears worth while to 
 offer a few words on the subject. 
 
 The Court of the Archbishop of Canterbury is, it is believed, 
 acknowledged on all sides to be a Mediaeval Court, and therefore 
 Mediaeval precedents may be of use to illustrate the possible course 
 of events in a case which has, in point of fact, revived alike the 
 Court itself and public interest in the Court, whose very existence 
 had been almost, if not quite, forgotten. 
 
 One leading feature of the Constitutions of Clarendon, as 
 regards Ecclesiastical matters, clearly was that all Ecclesiastical 
 controversies should, somehow, be finally decided within the 
 Realm, leaving no opening for appeals to the Court of Rome, 
 which never was popular either with King, Bishops, or People, at 
 any time during the Middle Ages. To represent the Mediaeval 
 English Church as subservient to the Pope, would, it appears to 
 the present Editor, be utterly false to facts. The simple truth is 
 what the Author of this History has frequently stated in his text, 
 that the relation between the Church of England and the Roman 
 See was one of respectful deference, but nothing more, and on 
 ancient Ecclesiastical principles, it is submitted, nothing more was 
 due. It cannot be doubted that the exactions of the Chambers 
 called Apostolic, as the phrase ran in the days of Henry VI 1 1., 
 and the extravagant claims to taxation of Benefices and provision 
 
Appendix /. 825 
 
 of aliens with rich preferment in England, greatly aided in keeping 
 up a feeling of resentment in this country throughout the Middle 
 Ages. When, therefore, it was proposed, by the Constitutions of 
 Clarendon, that all controversies in matters Ecclesiastical should 
 be finally determined within the Realm, although a Becket might 
 rage and an Alexander III. might fulminate, the general feeling of 
 Englishmen, Clerical as \vell as Lay, was likely to be on the side 
 of the Constitutions. 
 
 There was to be an appeal from the Archbishop, but it w-as to 
 be to the King instead of the Pope. This was perfectly in keep- 
 ing, of course, with the view, very sound in itself, that the King 
 was bound to see justice done between subject and subject, and 
 that if any were aggrieved by what appeared to him a denial of 
 justice, he might appeal to the King, who, as Pater Patrice, pre- 
 sumably, would be bound to give such remedy as he could. The 
 King might, when a cause came up to him from the Archbishop, 
 remit it to the Archbishop, with directions, no doubt, to revise 
 his original judgment in certain points wherein the King's Court 
 might have adjudged it defective or erroneous. It is possible that 
 this brief outline of the scheme devised in the Constitutions of 
 Clarendon may throw some light on questions of great practical 
 interest which are undoubtedly difficult of solution. It would 
 seem that, applying known Mediaeval principles to a confessedly 
 Mediaeval Court, -the jurisdiction of the Crown cannot be ousted, 
 in whatever shape it may be held to exist, whether the Judicial 
 Committee of the Privy Council, or any other Court, but that the 
 Royal Court may remit the case so coming to it (and m what way 
 it should come, the present writer does not pretend clearly to see) 
 to the Court of the Archbishop, on any point on which the Arch- 
 bishop's judgment may seem to it not to do justice as between the 
 lieges of the Crown, parties to the case. 
 
 J. 
 
 THE VETO POWER AND CONSTITUTIONAL 
 LIMITATIONS IN THE COLONIES. 
 
 Attention has recently been drawn in one of our American 
 Colonies to the delegation of the Royal Veto, which is generally 
 assumed to be practically obsolete in the mother country, to 
 the Governor-General of the Dominion of Canada, and some 
 remedy is sought by our Colonial fellow subjects for the disadvan- 
 
826 Appendix J, 
 
 tage at which they think the continuance of this power places 
 them. There is apparently a difficulty in Ihnine, arising from the 
 fact that, as in the case with other ' blunderbuses of the Law,' 
 the Veto has never been relinquished by the Crown,, and is there- 
 fore still, in theory, part of the armoury from which weapons, 
 however rusty and unsuited to the times, may yet be drawn, and 
 as far as the United Kingdom is concerned, it is not proposed 
 here to discuss the question. But with regard to the Colonies, it 
 may be worth while raising the point, as it has been raised in the 
 Wesient Law Tt?neSj Vol. I., No. 2, for May, 1890 (Winnipeg, 
 Manitoba), in relation to a recent exercise of the power affecting 
 the Province of Manitoba. 
 
 The position complained of under the Veto, as it at present 
 exists in Canada, is thus defined by the Manitoba periodical just 
 cited. Applying the doctrine of the Judicial Committee of the 
 Privy Council, in Powell v. Apollo Candle Co., Ltjuitcd, 3 Cart- 
 wright's Cases, to the Provinces of the Dominion, where a Second 
 Chamber has been abolished, ' we find,' says the Western Law 
 Times, loc. cit, ' a Government practically without limitations. 
 The Governor-General's Veto does not act as a revising-chamber, 
 and if there is a necessity for the one, the necessity for the other 
 is urgent. The Lieutenant-Governor must follow the advice of 
 his Ministers, and has no Veto. It is true, he is given the power 
 of disallowance in precisely the same terms as the Governor- 
 General (B. N. A. Act, §§ 55 — 90), yet he has lost it in twenty 
 years. Save where Dominion interests are affected, the Governor- 
 General is not supposed to interfere. Hence we find one chamber 
 with unbridled power, practically without a limitation — a state 
 of things not contemplated by the constitution — and unparalleled 
 by any State in the union.' By ' union,' in this reference, is 
 meant, no doubt, the United States. The account given of the 
 decay of the Veto power in Canada tallies pretty closely with its 
 history in this country. ' The history of the Veto in England,* 
 says the Manitoba writer, ' has been unique. From the earliest 
 times, when it existed in full vigour, until it was last exercised, 
 the process has been one of gradual decay.' But however inactive 
 it may have become in Home affairs, the Veto 'has often been 
 exercised in the disallowance of Colonial enactments, where 
 Imperial interests are affected. The people of Canada, as long as 
 they remain subjects of the British Crown, will peacefully submit 
 to such interference, and admit the justness of it/ It is possible, 
 however, that in some given case the people of Canada might not 
 'admit the justness' of the Veto power, and then it is hardly 
 too much to suppose that they might decline to ' submit peace- 
 fully ' to such interference. This is a possibility which should 
 be borne in mind. There are some grave objections to the 
 exercise of this power, which are thus marshalled by the Western 
 Law Times, u.s., viz., * the hostility engendered in many cases ; 
 
Appendix J, 827 
 
 the lack of definite principles defining its exercise; the semi- 
 judicial functions, without an appeal, that it assumes, when it 
 interferes with Provincial Legislation ; the increased lack of 
 respect for it on account of the frequent exercise, the sentiment 
 in the Provinces that it is being used as a means to limit their 
 exclusive rights ; and especially the feeling that it is brought into 
 play by a semi-irresponsible power ; for responsibility to the people 
 is the keystone of the British Constitution.' 
 
 It is not unworthy of notice that according to the writer in the 
 Western Law Twies, the present state of things within the limits 
 of the Dominion of Canada involves two points of antagonism to 
 what are supposed to be traditional elements of the Constitution 
 in the mother country. It involves the existence of ' one chamber 
 with unbridled power, practically without a limitation,' which 
 the writer justly calls ' a state of things not contemplated by the 
 constitution,' — and it also involves the possibility, on which he 
 with equal justice insists as requiring provision to be made 
 against it, that a ' revolution 'in the ' government might be pro- 
 posed and executed without an appeal to the people.' On these 
 gravajnina it may perhaps be noted that it ought to be contrary to 
 the general feeling of this country to favour Single chamber Con- 
 stitutions in Colonies possessing Representative Institutions, if we 
 intend to propound those Institutions as essentially modelled 
 upon our own. With regard to the possibility of a revolution in 
 the government being proposed and executed without an appeal 
 to the people, it is apprehended that the Bi-Cameral system will 
 not necessarily save any country from that evil. The nominally 
 existing system of Government has before now been revolutionised 
 by ParHament, or rather by one portion of the Parliament of this 
 country, assuming to act for the whole, and to declare the other 
 Chamber of no use, and the Monarchy abolished. And the same 
 process might, ex hypothesi, be repeated one day by one of the 
 Houses of the Parliament of the United Kingdom, or by both, if 
 they happened to agree, whether in the direction of Absolutism 
 or of so-called Republicanism. It does not therefore seem to be 
 at all certain that the possession of a Second Chamber would 
 necessarily save any Province of the Dominion of Canada from 
 the possibility of a revolution in its government without any 
 appeal having been made to the people. But it would be less 
 likely to happen under the Bi-Cameral system, and if there be any 
 value attached in our eyes to that system we ought, it would seem, 
 to favour its extension among our Colonies. It further appears 
 that some amendment of the British North America Act, 1867, is 
 desired, or at least is thought desirable, by those in Manitoba and 
 elsewhere who may share the views of the Western Law Titnes, 
 for the purpose of eftecting some Constitutional limitation of the 
 Veto power. This seems only reasonable when the disuse of 
 that power, amounting to its practical extinction in this country, is 
 
828 Appendix K. 
 
 taken into consideration. The suggestion of the Western Law 
 limes that the Courts should be empowered to pass upon cases 
 involving questions of Constitutional ultra vires seems also reason- 
 able, in view of the fact that the Supreme Court of the United 
 States expressly decides upon the Constitutionality of Acts of the 
 several States of the Union. The question whether the Veto 
 power, where it exists, has or has not been lawfully exercised, seems 
 to be naturally one for the Courts, if the Courts are really inde- 
 pendent, and if they are not, it were better to put an end, in any 
 Colony, alike to the Courts and to Representative Government 
 so-called. 
 
 K. 
 
 THE REFERENDUM AS A CONSTITUTIONAL 
 LIMITATION. 
 
 The question of the desirableness, or the reverse, of intro- 
 ducing into the United Kingdom that precaution against sudden 
 revolutionising of the Constitution, or even against any Legislation 
 involving Constitutional alterations without a previous appeal to 
 the people, known in Switzerland as the Referendiwi, is being so 
 much discussed as a question of modern * practical Politics,' that 
 it seems desirable to offer a few remarks upon it here. 
 
 That safeguards and limitations of some sort are greatly needed, 
 may be taken to be granted on all sides. The Referendutn is 
 alluded to in the discussion on the necessity of providing such 
 limitations in Canada in the Article in the Western Law Times 
 (Winnipeg, Man.), cited in the Appendix on the Veto Power. 
 The Manitoba writer does not wish for its introduction into 
 Canada, but the fact of his mentioning it by name shews how 
 widespread is the consideration of the possible value of this or 
 some similar safeguard. 
 
 That the Referendum is found, in practice, to be a real and 
 fairly effectual check in the Constitution of the Helvetic Confedera- 
 tion, may perhaps be accepted as a fact. The question whether 
 its introduction, bodily, into the written or unwritten Constitution 
 of a country or Colony not hitherto possessing such a safeguard 
 is a question far from easy of solution, and depending to a 
 considerable extent on the machinery available for carrying it 
 into execution, and also on the Political habits of the people 
 among whom it is sought to introduce the Referendum. That 
 
Appendix K. 829 
 
 some mode of direct appeal to the people, from which the element 
 of mere Party Politics is eliminated, would be desirable in any 
 country, can scarcely admit of doubt. What may be doubtful, 
 and as regards alike the United Kingdom and its Colonies 
 probably more than doubtful, is the possibility of so reaching the 
 people. In the United Kingdom, at least, and probably also to 
 a great extent in the Colonies, what seems in the highest degree 
 unlikely, indeed next door to impossible, is the devising of some 
 means by which the people could be so reached. Registration, 
 in this country, is so entirely in the hands of Party Associations, 
 and the challenging or establishing of a particular person's right 
 to vote is so inextricably mixed up with Party Politics, — most 
 unfortunately, as it appears to the present writer, — that it seems 
 hopeless to expect any good from the introduction of such a safe- 
 guard as the Referendum. That the establishing of the right to be 
 registered as a Parliamentary voter should be, as it has been 
 allowed to become in the United Kingdom, a matter for Party 
 Associations to wrangle over, cannot be conducive either to 
 Political morality or to the unbiassed exercise of a Popular power 
 of Constitutional limitation. The question whether the particular 
 form of safeguard called the Referendum would be in itself suitable 
 to our unwritten Constitution, full as it is of anomalies and 
 compromises, is one which, it seems to the present Editor, can 
 scarcely be considered other than Academic, until it has been 
 clearly proved that some means can be found, beyond the reach 
 of the manipulation of Party Registration Associations and 
 Caucuses, for getting at the real Vox Populi^ in the exercise of its 
 legitimate function of preserving the integrity of the Constitution. 
 
 We have been instructed in the nature and objects of the 
 Referendum so recently and by such high authorities, viz., Mr. 
 A. V. Dicey, in the Contemporary Revieiv for April, 1890, and 
 Prof. Freeman in the Universal Review for July, 1890, that it 
 seems unnecessary in this place to do more than give the merest 
 outline of what the Referendum purports to be. 
 
 This * awkward Latin name,' as Prof. Freeman calls it {op. 
 cit.^ p. 343), means, that * when a measure has passed both 
 Houses of the Assembly, it shall be referred to a vote of the 
 people, Yea or Nay. It must of course be a simple vote of Yea 
 or Nay; discussions and amendments are out of the question. 
 And the Referendum may be either Obligatory or Facultative. 
 That is, it may either take place as a matter of course in the case 
 of all measures, or of some particular classes of measures, or it 
 may take place only when it is demanded by a certain number of 
 citizens.' Of this safeguard of the Helvetic Constitution one 
 point, brought out by Prof. Freeman, is noticeable. It is, as he 
 says {op. cit.^ p. 341), 'one of the latest inventions of modern 
 poHtical ingenuity.' But though so modern it yet has its roots 
 in Antiquity, for it is evidently an outgrowth of the Landesgemeinde^ 
 
830 Appendix K. 
 
 *an institution of the hoariest antiquity.' This historical con- 
 nection probably it is which saves the Refei'endum from more than 
 a slight bullying for its ' awkward Latin name/ and helps to give 
 it a place of honour, though we may not say that Prof. Freeman 
 exactly accepts the Referendum. On the other hand, we must 
 not say that he is against it. He prefers to state the case, so that 
 there may be no excuse for readers of the Universal Review it 
 they fail to grasp what is meant by this new shibboleth of some 
 who would fain be considered * practical ' Politicians. But 
 Prof. Freeman plainly declines to commit himself one way or 
 the other. 
 
 The point that the Referendiwt is of kin to an institution of 
 hoar antiquity seems to be worth considering, for what it involves 
 is that the modern political invention is but a present-day applica- 
 tion of a portion of the ancient Constitutional machinery of the 
 country. It is therefore of native growth. If introduced here it 
 must needs be an exotic. But the question whether such a 
 Political exotic, transplanted bodily from another and in many 
 respects different Constitution, would be likely to flourish in 
 British soil and perform the same valuable services as it may be 
 held to perform in its native soil, is one to which it may not be 
 safe to give an unhesitatingly affirmative answer. There is also the 
 question whether the Swiss people, among whom the Referendum 
 possibly answers its purpose, are not really more highly educated 
 in the exercise of their Political powers than the people of the 
 United Kingdom. It may be greatly doubted whether the people 
 of this country would know what to do with the Refe7'endu7n , if 
 they got it. 
 
 Notwithstanding the general suggestion of the desirableness of 
 its introduction alike by the writer of the Article on the Referendu7n 
 in the Edinburgh Review for Jan., 1890, and by Mr. Dicey in the 
 Article discussed by Prof. Freeman and by Prof. Bryce in the 
 Speaker for 19th April, 1890, there remains a doubt whether 
 such an exercise, nominally, of the power of the People, would be, 
 in this country, anything more than an exercise of the wire- 
 pulling ingenuity of the various Party associations for the manipula- 
 tion of voters under the specious names of ' Registration Associa- 
 tions,' ' Eight Hundreds,' or any other number, Caucuses in 
 fact if not in name. And if so, it may seem that our last state 
 would be worse than our present state, for we should be supposed 
 to have spoken our minds, man by man, — perhaps, also, woman 
 by woman, — when in point of fact we should have done nothing 
 of the kind. It is suggested that the Referendum might only be 
 used on rare and great occasions, and Mr. Dicey has singled out 
 Home P>.ule and Disestablishment. Prof. Freeman doubts as to 
 one of these, and thinks that perhaps that is too purely Irish to 
 demand more than an Irish fieferendum^ not one applied to the 
 whole United Kingdom. However this may be, the suggestion 
 
Appendix K. 831 
 
 that the class of cases in which alone the Refe7'e7tdiim, if intro- 
 duced here, would be called into play would be only cases of the first 
 magnitude, is enough to warrant all the earnestness with which 
 Prof. Freeman endeavours to set the question before us so that 
 we may think it well over and understand it fairly before going 
 any further. And this is, undoubtedly, eminently desirable. 
 Prof. Bryce thinks that the introduction of the Referendum would 
 * transfer the power of dissent, still nominally vested in the Crown, 
 the wearer of which no longer ventures to use it, to the electorate, 
 which would use it freely enough.' 
 
 That is possibly, perhaps probably, true enough, but is it so 
 certainly a change embodying the advantages which Prof. Freeman 
 seems to unite with Prof Bryce in thinking that it would 
 embody ? If our experience of the British voter led us to the 
 conclusion that he was so highly educated in the Science of 
 Politics as to be likely to give his real personal opinion for 
 or against a particular measure submitted to him, without the 
 influence of Party politics and the persuasions of Party wire- 
 pullers being brought to bear upon him, there might be more to 
 be said in favour of the experiment of introducing the Referendum 
 into the Polidcal machinery of the United Kingdom. But if, as 
 seems but too probable, the introduction of this so-called safeguard 
 were to be simply the addition of yet another string to the bow of 
 the Party wire-puller, then our last state would, it is submitted, 
 be worse than the first, and we should be as far as ever from 
 having really called forth the Vox Populi. 
 
 The latest news from the Helvetic Confederation in the shape 
 of the intervention not merely of a Federal Commissioner, which 
 was no doubt a necessary or at least a desirable measure, but also 
 of large bodies of Federal troops of various arms, can scarcely be 
 encouraging to those who suggest the introduction of the Referen- 
 dum into this country. The question which will be placed before 
 the People in the Canton of Ticino in October, 1890, is whether 
 the Existing Constitution shall be revised, or not. This is a very 
 proper question to submit to the People, in whatever way the 
 Existing Constitution may direct it to be submitted. But the 
 despatch of really considerable Federal military forces into one of 
 the Cantons of tlie Confederation, before the taking of the vote, 
 appears to be a measure not distinguishable from coercion, and 
 that under its severest aspect. The People of Ticino have shewn 
 themselves dissatisfied with the Administration of their Canton, 
 and have risen against it, with a seemingly preponderant Cantonal 
 feeling in favour of the Rising. Any Government can send troops 
 to overawe electors. The Federal form of Republic is not needed 
 for that. But such a course of action savours more of Absolutism 
 than of Constitutionalism, and the fact of its being taken by the 
 Helvetic Federal Council tends to prove that the Referendum is 
 not a panacea. 
 
832 Appendix L. 
 
 EXTENSION OF THE SUFFRAGE. 
 
 The view taken in the text of this History as to the nature and 
 tendency of recent extensions of the suffrage seems to the present 
 Editor, as has been to a certain extent intimated in his Notes, 
 somewhat too optimistic, and some considerations which may 
 modify this optimism will perhaps not be out of place. 
 
 The extensions which have taken place since the last edition of 
 this History which the author was able to see through the press, 
 viz., the Second Edition, in 1883, have been considerable and far- 
 reaching, but they are certainly not final, and such approach to 
 finality as is foreshadowed by what are called ' advanced ' writers 
 is one which portends much greater changes than we have yet 
 seen. But none of these Constitutional changes, or modifications, 
 if that epithet be preferred, indicates any recognition of Intellect or 
 Education as a Factor in the movement, while the retention of 
 any property or rating qualification in the future is plainly suggested 
 as being quite out of date. The modern elector is increasingly 
 illiterate, or next door to illiterate, and therefore all the more 
 likely to be the tool of Party agencies. We have long been told 
 that what we are, and must be, tending to is the goal of * one 
 man, one vote ' ; and now we have it suggested that, in order to 
 be logical, we must go a step further, 'one woman, one vote.' 
 At the same time, the idea of rating as any test for the Electorate 
 is held up to us as a rapidly decaying superstition. These things 
 will perhaps not come to pass yet awhile. Lady Dilke, in a very 
 interesting, and, from her point of view, temperate article in the 
 Universal Review for July, 1889, admits this, and appears not to 
 wish to hurry events. In this, her wisdom is much to be com- 
 mended, and likewise in her earnest plea for the education of 
 women before proceeding to agitate for their share in the suffrage 
 as a sex. Education is no less desirable for the male elector, and 
 is scarcely less needed. Whether a particular extension of the 
 suftrage can properly be advocated on the score of its being 
 * logical,' may perhaps admit of question, and whether the people 
 of the United Kingdom are a logical people may be open to 
 doubt. Our neighbours across the Channel are in the habit of 
 saying that we are not logical, else we should long ago have had a 
 Kepublic. It might be possible to reply that we have, under the 
 'monarchal form,' practically reached a 'parliamentary democracy.' 
 AVhether we have thus reached our final resting place is another 
 question. 
 
 To Lady Dilke, at least, it seems clear that we have not by 
 any means reached finality. * Neither the ultimate resting-place, 
 
Appendix L. 833 
 
 nor even, if regard be had to either logic or justice, the temporary 
 halting-place, can be found in a nominal rate-paying franchise. 
 On the principal \sic, but we credit this obvious blunder to the 
 printer of the Univeisal Review and not to the author of the 
 article. — Ed.] of this nominal rate-paying franchise great inroads 
 have been made by the lodger franchise, and again by the service 
 franchise, and the Parliamentary franchise has been differentiated 
 by these from the various local franchises. The assimilation of 
 the Parliamentary and local franchises has, therefore, obviously 
 become impossible, except by going considerably further in the 
 direction of extension. The exclusion, in the name of the princi- 
 ple of property, of some of the richest people in the country, whilst, 
 under the present interpretation of Mr. Goschen's Act of 1869, 
 the poorest tenement occupiers are included, has made the 
 supposed property basis of the franchise ridiculous, and there is a 
 general admission that a base for the franchise wholly apart from 
 the possession of property will have to be discovered.' What this 
 base, ' wholly apart from the possession of property,' should be 
 would seem to be the problem which awaits solution, but it is 
 rather suggested than stated by Lady Dilke. It would seem, 
 however, to be contained in the concluding words of the Article, 
 that ' greater reform which shall give the vote to every grown-up 
 person without distinction of sex.' Nothing short of this, it may 
 be presumed, would be acknowledged as our ' ultimate resting- 
 place' in the extension of the Suffrage. One statement made 
 quite incidentally by Lady Dilke seems to deserve notice here, as 
 an instructive commentary on the piecemeal legislation of the 
 day. ' It is true,' she says, ' that the power and value of the 
 electoral vote in itself is now so diminished by the growing force 
 and organisation of public opinion that the addition of even a 
 large body of new electors would probably make very little differ- 
 ence to the current of popular verdicts.' That the ' power and 
 value of the electoral vote ' should have diminished to the extent 
 suggested is, if true, as we believe it to be, a fact of great signi- 
 ficance, but we doubt whether the true cause is that put forward 
 by Lady Dilke. We are more inclined to believe that the vote 
 has been given to classes which set little or no value upon the 
 franchise. 
 
 C.H. 3 H 
 
834 Appefidix M. 
 
 M. 
 
 THE COURT-LEET. 
 
 The present time seems to be one of unrest, if not of revolu- 
 tion, on most points of Historical Enquiry into Institutions, and 
 of this fact the Court-Leet seems to be one of the latest proofs. 
 The old view, involving the great antiquity of this jurisdiction, 
 has been brushed aside, so to speak, by Mr. F. W. Maitland, in 
 his edition of Select Pleas in Manorial and other Seignoi'ial Courts 
 (Selden Society, 1888), in favour of a view, not yet established, 
 that this Court had its origin in * seignorial usurpation favoured 
 by accidental confusion.' Mr. J. H. Round, in a notice of Mr. 
 Maitland's book, Eng. Hist. Rev., July, 1890, seems to welcome 
 the new hypothesis at least to the extent of saying that ' the 
 theory of antiquity is as difficult to establish as the theory of 
 confusion.' Mr. Maitland holds, or rather perhaps suggests, that 
 the Jury of Presentment originated in the Assize of Clarendon, 
 and becoming ' implicated ' with the pre-existent View of Frank- 
 pledge in the great half-yearly Hundred Court, ' assumed the 
 form we meet with in the sheriff's towon' \sic, Eng. Hist. Rev.., 
 loc. cit., an apparent printer's error twice repeated in the same 
 line of Mr. Round's notice, but which we scarcely suppose to be 
 the brand new language of a new school of Historians. — Ed.]. 
 The next step suggested is that the Sheriff's tourn (to use the old 
 form of the word) was 'imitated' by those lords who enjoyed 
 Views of Frankpledge, and who ' endeavoured to develop their 
 capital pledges ' into the Jury of Presentment that we are 
 
 * familiar with in the Court-Leet.' Mr. Maitland, it may be 
 added, only puts this view forward ' tentatively,' and it is a view 
 so full of hypotheses that it could scarcely, it seems to us, 
 be put forward in any other manner. It may be questioned 
 whether the hypothetical view suggested by Mr. Maitland is 
 more in harmony with the probable evolution of the Court- 
 Leet than Mr. Digby's view, Hist. Law of Real Property^ 1884, 
 p. 15, where he says, in his account of Manorial jurisdictions, *In 
 the later grants [speaking of T. R. E. — Ed.] it is very common to 
 find words [commonly, *sac' and *soc,' importing 'jurisdiction,' 
 
 * the franchise of holding a court ' ; so Digby, in 71. 7, loc. cit. — 
 Ed.] expressing that rights of jurisdiction are conveyed together 
 with the land. The rights were regarded as taken away from the 
 hundred court and vested in the grantee as the owner of a franchise 
 or liberty or district exempt from the jurisdiction of the hundred. 
 . . . Thus the great man of the district acquired the headship or 
 ])residency of the courts held within the district, and by a gradual 
 change the village assembly or mark-moot passes into the court 
 
Appendix M, ^ 835 
 
 of the tenants of the lord, called in later times the court baron or 
 customary court ; while the court leet of later times probably 
 represents the jurisdiction of which the hundred was deprived by 
 express grant' Further on, Mr. Digby says, op. cit^ p. 52, dis- 
 tinguishing between the Court Baron and the Court-Leet, ' the 
 court baron exercised civil jurisdiction especially in matters re- 
 lating to the freehold lands within the manor. Criminal jurisdic- 
 tion was amongst the functions of the court leet, and depended 
 on a real or supposed grant from the crown.' Again, p. 53, *The 
 leet is the assembly of the whole community, and seems to date 
 from a time when the community was small, and could gather 
 under a tree, on the side of a hill, or upon a village green, and 
 transact business afifecting the interests of all its members.' There 
 seems to the present Editor to be more simplicity, and more pro- 
 bability also, in this conception of the Court-Leet than in that 
 which is suggested by Mr. Maidand and Mr. Round. 
 
 N. 
 THE PILGRIMAGE OF GRACE. 
 
 Some interesting matter connected with the great Northern 
 rising, known as the Pilgrimage of Grace, has lately been printed 
 in the English Historical Review^ July, 1890, pp. 550 seqq.^ in the 
 shape of the Interrogatories administered to Roger Aske, Lord 
 Hussey, Lord Darcy, and Sir Robert Constable, and their answers. 
 It would be impossible to do more than refer very briefly to this 
 mass of documentary evidence, but some of the questions and 
 answers deserve to be specially noted. 
 
 It is evident that the insurgents generally believed, or at least 
 professed to believe, that the Church goods were to be taken 
 away, and that there should be left to stand but one parish church 
 within seven miles. This would seem to be simply an exaggera- 
 tion of some of the phases of the Reformation in England. Roger 
 Aske, in his answer to the seventh interrogatory, admits that he 
 
 * thinkes those brut[es] were one of the greatest causes ' of the In- 
 surrection, but he also thinks that the greatest cause was the 
 
 * supp[re]ssion of abbeys,' which, he says, ' the brut[es] of the co[m]ens 
 moste grudged at.' It may be as well, perhaps, to remark that 
 ' brutes ' here = bruits, or reports. Again, in answer to the 
 nineteenth Interrogatory, Aske says that what the Insurgents 
 chiefly * grudged ' was, as before stated, the suppression of the 
 
 3 H 2 
 
836 Appendix N, 
 
 Abbeys, and also the Act of Supremacy, which, they thought, 
 * shulde be a diuision from the churche.' They also * grudged ' 
 the assignment of the Crown by the last will of Henry VIIL, 
 the illegitimacy of ' my Lady Marie,' the Statute of Uses, and of 
 First Fruits, which they said would be * a decaye to all religion ' ; 
 and they 'grudged at thacte that word[es] shulde be treason.' 
 This last * grudge ' is far from unreasonable. With regard to the 
 Supremacy, there is a distinction, noted in the present Editor's 
 notes, which seems to have been taken by Aske himself He 
 states that it was he himself who ' putt in touching ciira\ni\ 
 a\7i\i\in\ar\um\ which shulde belonge to the busshop of Rome.' 
 The rest of his companions, he says, would have annulled the 
 *hole statute.* The first idea, according to Aske, was to get 
 these statutes annulled by petition : failing that, as it was pretty 
 obvious would be the case, they would proceed, necessarily, to 
 *geate theym reformed by swerde and battaill' The result, as we 
 know, was a taking of vengeance both swift and terrible when the 
 King's banner was set up in the North, and the Laws Martial 
 took the place of the Common Law. 
 
 THE IMPEACHMENT OF BUCKINGHAM. 
 
 A RECENT interesting volume, Docutnents illustrating the Im- 
 peachment of the Duke of Buckingham, 1626. Edited by S. R. 
 Gardiner, LL.D. Camden Society, 1889, throws some light on 
 an important feature in the Constitutional aspects of the reign of 
 Charles I. The general result of the careful researches of the 
 Director of the Camden Society is that not much documentary 
 evidence of any value has been found, and what there is cenircs 
 round five points in the Impeachment, which it may be well here 
 to summarise. 
 
 I. The purchase of the Wardenship of the Cinque Ports. The 
 Papers now printed, in Mr. Gardiner's belief, ' appear to show a 
 probability that Buckingham, in making the purchase, had a public 
 object in view.' 
 
 II. The Guard of the Seas. On this point there is * even less 
 that is new to be shown.' 
 
 III. The Seizure of the St Peter Havre de Grace. This, says 
 Mr. (aardiner, is ' a more important matter.' The Managers of 
 the Impeachment dwelt upon the ill-treatment of French mer- 
 chants as being provocative of an impolitic war with France, and 
 
Appendix O, 837 
 
 alleged that the seizure of property from this particular ship was 
 simply for Buckingham to enrich himself. It is well to note that 
 the Papers now printed shew that * this suspicion was unfounded,' 
 though they also shew, what, we may remark, was already abun- 
 dantly evident from other sources of information, * the extreme 
 carelessness with which public accounts were kept in those days/ 
 The utter want of anything like a proper system of keeping and 
 checking public accounts, had been matter of complaint in the 
 House of Commons long before ' Baby Steenie's ' day. 
 
 IV. The extortion of ;£"io,ooo from the East India Company. 
 This point in the charges, says Mr. Gardiner, ' is admirably suited 
 to illustrate Buckingham's high-handed proceedings.' To that 
 extent, it may be considered proven. It is interesting to note 
 that the famous Civilian, Dr. Zouch, advised the Company that it 
 was '■ doubtful ' whether Buckingham could claim a tenth of all 
 prizes as Lord High Admiral, unless he had issued Letters of 
 Marque, which in the particular case he had not. The high- 
 handedness must be divided between the King and Buckingham, 
 since the King claimed ;^i 5,000 from the Company, for their 
 alleged act of piracy in seizing their Portuguese prizes at Ormuz, 
 while Buckingham ordered the stay of the ships of the Company 
 in the Thames in 1624, but eventually let them go, perhaps fear- 
 ing to exasperate the East India merchants too deeply. It seems 
 probable that both Buckingham and the King were paid their 
 demands in full. 
 
 V. The supply of English ships to make good deficiencies in 
 the French navy. This appears to be proven. A contract was 
 signed, 1625, with Effiat by the owners of seven merchant ships, 
 and besides this, one ship of the Royal Navy, the Va?tguard, 
 Capt. Pennington, was to be ' lent ' to the French King. Pen> 
 nington, however, seems to have received rather confused and 
 contradictory instructions, and he returned to England only three 
 months after the signing of the contract for the merchantmen. 
 Pennington's letters read like those of a bluff English sailor, with 
 a traditional contempt for the French, as well as for Statecraft 
 and Diplomacy. 
 
838 Appendix P. 
 
 P. 
 
 BETAGII, GAVELLARII, AND OTHER AGRICUL- 
 TURAL TENANTS IN MEDIEVAL IRELAND. 
 
 Attention has been drawn in the present Editor's notes to 
 some interesting researches in the history of Agricultural Tenants 
 in Ireland, during the Fourteenth Century, contained in a Paper 
 by Mr. James Mills, in the Journal of the Royal Society of Anti- 
 quaries of Ireland, 1890, Vol. L, Pt i., 5th Ser., pp. 54 seqq. A 
 few words to shew the nature of the information contained in the 
 Paper may not be out of place here. Confining his researches to 
 certain manors comprised in the estate of the See of Dublin, Mr. 
 Mills finds the manors north of the city apparently enjoying a 
 ' fairly peaceful state.' And in this district the Irish nativi^ or 
 betaghs, ' had progressed far on the road to recognised freedom.' 
 * No longer liable,' so Mr. Mills describes them, * to render un- 
 limited services at the demand of their lord, they held their 
 lands at fixed rents, apparently not very excessive, and rendered 
 services definitely regulated by custom, and generally little more 
 than nominal in amount. Their position was quite as favourable 
 as that of the villeins in England at the same period. As was the 
 case in England, the growth of freedom had been gradual.' 
 
 Some qualification may be necessary as to the contemporary 
 position of the villeins in England by recalling the fact that this 
 was the century which saw the great Insurrection of the villeins, 
 which can scarcely be regarded as a mark of their acquiescence in 
 their position. 
 
 As to what the Betaghs, or Betagii, were, Mr. Mills says that 
 they were ' the native servile tenants continued as nativi or serfs 
 adscripti gleke, under the Normans. They were transferred with 
 the land, as well by Irish chiefs (both before and after the Norman 
 invasion) as by the conquering Norman lords.' The Betaghs on 
 the Archbishop's lands, we learn, paid, in 1326, 'a money rent 
 varying usually from 6d. to is. an acre. They were, besides, 
 bound to perform a certain amount "of work for their lord, consist- 
 ing of, perhaps, a day's work in haymaking and harvest.' This 
 ' perhaps ' is somewhat tantalising, as seeming to indicate some 
 uncertainty as to the extent of the work so exigible. In another 
 passage, Mr. Mills says that the services of the Betaghs had been 
 commuted for rent near Youghal, as early as 1288. Firmarii 
 formed another class, ' generally liable to the same rents and ser- 
 vices as the betaghs,' with the exception of * watching the lord's 
 horses and oxen,' which Mr. Mills describes as ' a survival of the 
 more onerous services of former times.' ' In rare instances ' the 
 firmarii 'paid rent only, freed of other services. They seem 
 
Appendix P, 839 
 
 generally to have succeeded betaghs, and probably differed from 
 them only in not being bound to the soil.' In the manor of Swords, 
 occupiers called Gavellarii are met, and perhaps also at Finglas. 
 ' Their origin and position are uncertain.' Archbishop Alan, 
 y^hosQ Liber Niger {circa 1326) is the authority for most of the 
 details in the Paper, notes in his gloss that they were ' not tenants 
 in gavelkynd as in Kent,' but ' hrmarii at will or by charter, not 
 cotters or betaghs, but in the nature of copyholders.' Mr. Mills, 
 citing Eyton's Somerset Domesday, I. p. 42, suggests that the name 
 may have been another form of gabidatores, met with in Domes- 
 day, who appear to have been freemen paying fixed rents. 
 
 The name Gavellarii, as Mr. Mills no doubt rightly says, has 
 probably no connection with Gavelkind, but is derived from gavel, 
 or rent. 
 
 There seem to be indications that the Betagii lived in village 
 communities, and cultivated their land on some form of the open 
 field system. For this Mr. Mills, op. ciL, p. 57, cites Sir Henry 
 Piers's Description of County Westmeath in the Seventeenth 
 Century, in Vallancey's Collectanea, L, pp. 115 — 19. Sir Henry 
 says that the inferior rank of husbandmen were in his time called 
 Sculloges. ' They held the pasture of each townland in com- 
 mon. . . . The arable land, though lying in common fields, was 
 divided among the members of the community with the most 
 extraordinary nicety. The whole field is divided into plots of an 
 acre, half an acre, or quarter of an acre, measured with a rope. 
 These plots were then grouped into as many shares as there were 
 ploughs in the townland. The utmost care was taken by joining 
 together in one share plots, good and bad from different quarters 
 of the field, that the shares might be of exactly equal value. Then 
 came the distribution — a number of stones or sods of turf equal 
 in number to the shares into which the land had been divided 
 were placed in a row on the ground. Then each man entitled to 
 a share placed in a hat, in view of all the others, some distinguish- 
 ing article — a bit of stick, a pebble, a scrap of iron, a rag, a 
 flower, &c. Then a child or a stranger was called upon to draw 
 these lots. He taking the several articles from the hat placed 
 them one by one on the stones representing the divisions of the 
 land. Notwithstanding the care and impartiality of the division, 
 the wildest disputes followed the result of the lot, sometimes 
 delaying the commencement of tillage work long after the proper 
 time. It seems that those who possessed the means of working 
 a plough got a full share of the land.' With regard to these 
 customs in Westmeath, Mr. Mills is no doubt right in saying that 
 they were most probably *a survival of institutions previously 
 more extensively followed,' and ' similar customs may have been 
 practised by the betaghs of Swords and Finglas in the fourteenth 
 century/ — and much earlier, we may add. 
 
840 Appendix Q. 
 
 Q. 
 MEDIEVAL SCOTTISH BURGHS AND BURGH LANDS. 
 
 Interesting illustrations of the state of Society and also of 
 Land Tenure in Scottish Burghs in the Middle Ages may be found 
 in a work to which the present Editor has not unfrequently 
 referred in his foot-notes, Inverurie and the Earldom of the 
 Garioch^ by John Davidson, D.D., Minister of Inverurie. Edinb., 
 David Douglas: Aberdeen, A, Brown & Co., 1878. From this 
 work it may be seen that the Scottish Burgh, like its English 
 sister, gave freedom to the serf who could escape to it, and live 
 unclaimed by his former lord for a year and a day within its 
 walls. The burghers themselves, within those walls, formed, as 
 Dr. Davidson says, a sort of Venetian aristocracy, with whom 
 rising scions of nobility might well find it to their interest to be 
 friends. The qualification for burgess-ship at Inverurie, as in 
 many other cases, was the possession of ' a toft of land within the 
 burgh.' The history of these Roods, as they were called, is 
 traced through several centuries of holders by Dr. Davidson, with 
 considerable minuteness of detail. His remarks seem to give 
 abundant evidence of the maintenance of the same family groups 
 or settlements in the Burghs from the date of the earliest records, 
 in some cases even down to the present day. 
 
 'I'he Garioch, of which Inverurie was the capital messuage, 
 l)eing a Regality, the Lord Superior of the Regality retained in 
 his immediate possession two portions of the Upper Roods, other- 
 wise, it is apprehended, he would have been a ' stranger ' within 
 ihe Burgh. There were common lands, known as the *Twal 
 pairts,' and these twelfths were, at the time of the earliest notices, 
 sub-divided into half and quarter twelfths, all, apparently, divided 
 periodically by lot, a custom pleaded as Lite as 1616, and there 
 were out-field and in-field twelfths. The Town Hall, built in 1660, 
 was erected, very fitly, on the Roods which in the Middle Ages 
 had been described as ' at the Cross ' or ' in the middle of the 
 burgh.' One portion of land bore a designation, the * standard 
 Rig,' which, as Dr. Davidson no doubt judges rightly, indicated 
 that by it 'the Deans of Guild had to verify the measurements 
 claimed by holders of Roods ' {pp. cit., p. 114). Another interest- 
 ing memorial of the Past connected with the Roods known as ' at 
 the Cross ' is that, as we are told, * When we come upon records 
 of royal proclamations, long after, we find that they were made at 
 tlie Cross, and at the Cuning Hill ' {op. cit., u. s.). A tradition to 
 the effect that the Cuning Hill was the burial-place of the second 
 of the Scoto-Pictish line of Kings, Aodh, or Hugh, 'of the swift 
 foot,' son of Kenneth MacAlpine, defeated by Cyric, or Greg, at 
 
Appendix Q. 841 
 
 Strathallan in Angin, in 878, may have helped, as Dr. Davidson sug- 
 gests, to make that mound the ' sacred place ' of the municipality. 
 'The town,' says the minister, 'was probably, in 1400, all within 
 sight and cry of the Cross ; and the Cross well may have served 
 the whole community.' The principal crime tried in the Burgh at 
 the Circuit of the Justiciar, in 1400, was that of forestalling, i.e., 
 anticipating the open market. But the Laws of the Burghs shew 
 that a guild brother was known to be guilty of ' sticking another 
 with his nifif,' for which indulgence of his unruly temper he had 
 to pay half a merk, and to make amends ' at the will of the 
 Alderman [or, as we should now say. Provost], the Dean, and the 
 laiff of the brethren,' and for greater security, no burgess was to 
 wear a ' knyff' with a point, under fine of i2d. Such was 
 Inverurie, shortly before the corojiach was cried for Harlavv, 
 
 R. 
 
 PAYMENT OF EXPENSES OF SCOTTISH COMMIS- 
 SIONERS TO PARLIAMENT, 1661-3. 
 
 The ancient practice of allowing the expenses of representatives 
 in Parliament, to which reference is made in the text in connection 
 with the writ De Expensis levandis, prevailed m Scotland as well as 
 in England, and lasted apparently down to a somewhat later date. 
 In Northern Notes arid Queries, edited by Rev. A. W. Cornelius 
 Hallen, M.A. (Edinb., David Douglas), Vol. III., No. 9, for 
 June, 1888, there is printed, from the Ardchattan MSS., the 
 following interesting document. 
 
 'Stent roll For payment of the Somme of Two thousand 
 Thrie hundreth and Fyftie pundis scottis Dew for the charges of 
 James Campbell of Ardchattane Commissioner of Parliat \sic\ for 
 the Schyre of Argyll maid and set doun be Sir Dougall Campbell 
 Sir James Lamount and DUncane McCorquodill of Phantellans 
 As haveing power and commissione fra the Lordis of Counsell 
 and Sessione. . . . And payeable be the kinges barrones and 
 trie holders within the said Schyre According to the Severall pro- 
 portions of Rentis .... For attending the last thrie sessiones of 
 Parliament 1661, 1662, and 1663 ^s his commissioner fie accord- 
 ing to my Lord Clerk register his attestatioune with four days 
 cuming and four dayes going at ilk sessioune of the farsaid thrie 
 sessiones of parliament . . . subscrybitt . . . the sixt day of 
 October I.MC. three scor thrie yearis.' 
 
842 Appendix R, 
 
 From the tenor of this document it results that the payment 
 included travelling expenses as well as an allowance during the 
 session, and that the charges were assessed upon the Barons and 
 Freeholders of the Shire in conformity with the charges allowed 
 by the Lord Clerk Register, presumably on claim made by the 
 Commissioner for the Shire, and duly apportioned by Commis- 
 sioners appointed for the purpose by the Lords of Council and 
 Session. This shews that the recognition of the payment was as 
 full and legal in Scotland as in England. In both countries, 
 probably, the date of the commencement of the desuetude of the 
 practice was much the same, though seemingly rather later in 
 Scotland than in England. In view of the recent tendency 
 towards a revival of this allowance, the document, of which the 
 substance has here been set out, has a more than antiquarian 
 interest. 
 
 THE FIRST CONSTITUTION OF CONNECTICUT, 1639. 
 
 Since the third Edition of this Constitutional History was 
 published, the State of Connecticut has celebrated, with an 
 enthusiasm worthy of the event commemorated, the two hundred 
 and fiftieth Anniversary of the First Constitution, established by 
 the young Colony in 1639, 'according to God,' and with the 
 remarkable feature that * no King, nor charter, nor Parliament, 
 nor previously existing government had mention in the instrument 
 upon which it was organized.' So runs the statement made in 
 the Historical Address delivered by Rev. Joseph H. Twichell, 
 during the Exercises at the First Church, Hartford, Conn., 
 Jan. 24th, 1889, on the occasion of the above commemoration. 
 The Connecticut Historical Society fitly took the lead in making 
 all necessary arrangements for the celebration, and collected the 
 Addresses and Letters connected therewith into a handy volume 
 entitled, — somewhat erroneously, in strict law, it must be 
 remarked — Celebration of the Two Hundred and Fiftieth Anni- 
 versary of the Adoption of the First Constitution of the State of 
 Cofinedicut. Hartford, Conn. Published by the Connecticut 
 Historical Society, 1889. We are obliged to say that this very 
 interesting book is somewhat erroneously named, because it must 
 be obvious that at the time of the adoption of the Constitution of 
 1639, Connecticut was not a State. It was, in Law, whatever it 
 
Appendix S. 843 
 
 may have been in the theory of its founders, and however free 
 from Home intervention in fact, a Colony or Plantation of this 
 country, one of His Majesty's American Plantations. 
 
 That the founders of Connecticut paid small regard to King or 
 Parliament of the old country may well be the case, but that does 
 not alter the fact of their quality of subjects of the King of 
 England. They may, as Mr. Twichell says {pp. cit., p. 27), have 
 recognised, or at least appeared to have recognised, ' no outside 
 human authority whatsoever as the source and basis' of their 
 powers, but the authority was there, although in the background. 
 
 It is true, no doubt, in great measure, as Mr. Bancroft is cited 
 by Mr. Twichell as remarking, that the early New England 
 Community was ' so humble that no statesman condescended to 
 notice it,' and this happy obscurity, no doubt, was the cause of 
 the remarkably Liberal Constitution which the parent colony of 
 Massachusetts, the Bay State of later days, procured by Charter 
 of Charles I., only a i^\s days, as Mr. Twichell aptly notes 
 {op. cit., p. 32), before the King 'proclaimed his design of there- 
 after ruling England without the aid of Parliament.' Now the 
 founders of Connecticut were seceders from liberally chartered 
 Massachusetts. For the Royal Charter seemed to not a few of 
 the Colonists too Liberal. ' So,' says Mr. Twichell, ' thought 
 many of the leaders of the colony, the men chief in wealth, social 
 rank, and influence.' And these men proceeded, it would seem, 
 to counteract the too great Liberalism of Charles I. by getting 
 the power into their own hands, and creating, in fact, an 
 Oligarchy. But this was distasteful to a large proportion of the 
 freemen of the Colony in whom the power was constitutionally 
 vested. Hence internal dissensions, leading eventually to the 
 secession, unauthorised by the General Court of Massachusetts. 
 ' It was by the magistrates of the Bay never consented to,' says 
 Mr. Twichell (op. cit., p. 40). This fact is not without importance 
 in regard to the light which it may rightly be held to throw on the 
 intentions of the founders of Connecticut. They had left a 
 Colony governed by a Royal Charter, the Liberal spirit of which 
 was being, in their view, violated by Oligarchical rule introduced 
 under the plea of the need of a strong arm to keep the infant 
 settlement together, and to provide for the merest daily wants of the 
 community. What, then, did the Founders of Connecticut mean 
 to found? Obviously, what they had failed to find in Massa- 
 chusetts, viz., a Free, Self-governing Community. Mr. Twichell 
 calls this a Democracy, and that is, no doubt, what the Founders 
 of Connecticut actually did found. It is also, in his opinion, what 
 they meant to found. ' They definitely meant a democracy and 
 nothing else' {op. cit.^ p. 31). This deed of theirs, no less 
 remarkable in itself than the Liberal Charter of Massachusetts 
 Bay, was yet, Mr. Twichell says, ' no note of defiance and revolt' 
 We can scarcely, however, call it a note of submission. That 
 
844 Appendix S. 
 
 there was, as Mr. Tvvichell will have it, ' no jurisdiction over 
 them claimed t/ii's [i.e., the American] side of the Atlantic or 
 anywhere else — audibly to them at all events,' we can only admit 
 as partially true. Massachusetts gave no permission, and the 
 Crown still less. As, however, nobody protested, or claimed 
 jurisdiction, ' audibly to them,' the founders of Connecticut did, 
 in fact, lay deep in American soil the foundations of a Democracy, 
 i.e., of a Government of the People, by the People, for the People. 
 And we do not doubt that this is exactly what they had it in their 
 minds to do, though they might not have given it the name of 
 Democracy. They founded, and they meant to found, a govern- 
 ment, as Mr. Twichell puts it, * on the sole authority, under God, 
 of the will of the people.' They appointed the holding of two 
 Assemblies or Courts, the one a Court of election, to choose a 
 Governor and six magistrates, the other a General Court, consist- 
 ing of the Governor and magistrates and a body of deputies, not 
 exceeding four from each of the towns which constituted the new 
 Commonwealth, viz., Windsor, Hartford, and Wethersfield, 'for 
 making of laws and any other public occasion which concerns the 
 good of the commonwealth.' And they provided that if the 
 Governor neglected to summon the General Courts as bound by 
 the Constitution, and, after petition by the freemen, neglected or 
 refused so to summon the said Courts, then ' the said freemen, 
 or the major part of them, shall have power to give orders to the 
 Constables of the several towns to do the same, and so may meet 
 together and choose to themselves a moderator, and may proceed 
 to do any act of power which any other general court may.' We 
 agree with Mr. Twichell that the ' sense ' of this is ' very unmis- 
 takeable.' It is the establishment of a Free Self-governing Com- 
 munity. It is what Mr. Twichell and his brother citizens of 
 Connecticut call a Democracy. It is also, inutatis 7?iutandis, 
 exactly what the nearest relations of the Founders of Connecticut 
 in the Old Country established as law under a Monarchical 
 Government, in the A^ct of the Long Parliament, 1641, known as 
 the Triennial Act, to ensure the due assembling of Parliament, 
 failing the Constitutional action of the Lord Chancellor or Keeper 
 of the Great Seal, and failing the Constitutional meeting of the 
 Peers in default of such action. In the last resort, * the electors 
 themselves were to meet and proceed to choose their representa- 
 tives, in the same manner as if writs had been regularly issued 
 irom the Crown,' as is set forth in the text of the present 
 History, supra, p. 605. In any case, call them what we will, the 
 Founders of Connecticut were builders and Reformers. As Mr. 
 John Hooker, of Hartford, who was welcomed at the celebration 
 as of the blood of Thomas Hooker, one of the Founders, and not 
 the least distinguished for ability and Political clear-sightedness, 
 rightly reminded his fellow-citizens {op. cit.^ p. 64, ieqq.), 'the 
 work of up-building is a work of Reform ; ' and, again, the true 
 
Appendix S. 845 
 
 reformer, who, as Mr. Hooker truly says, is ' not necessarily an 
 iconoclast,' ' builds upon the foundation of old ideas, but the 
 superstructure is of new ideas, or of ideas that have been over- 
 looked or lost, and are practically new to the age.' So it was with 
 the Founders of Connecticut. They were at once up-builders and 
 Reformers ; they built upon the foundation of old ideas. They 
 builded, in a sense, ' better than they knew.' They laid some of 
 the first stones of the United States on the foundation of old 
 English ideas of Freedom and Self-government. 
 
 T. 
 
 PETITIONS OF RIGHT. 
 
 This mode of obtaining redress, the value of which is so strongly 
 emphasised in our History by the famous Petition which Sir 
 Edward Coke advised the Commons of England to put up, is of 
 such rare occurrence in actual practice, that a recent case which 
 has come under the present Editor's notice in the English Law 
 Reports published in the Glasgow Herald, for 15th Jan., 1890, 
 seems to deserve a place in these Appendices. 
 
 The facts of the case are briefly these, and they will, it is 
 believed, suffice to shew the importance of the points raised by 
 the Petition. 
 
 The Petitioner, Colonel Mitchell, retired from the Army in 
 January, 18S7, after, it is stated, a period of active service of about 
 thirty-one years. He had entered on the terms of a Royal Warrant 
 of 1H54, under which he was to have the option of retiring on a 
 pension oi jQdoo a-year after thirty years of service, provided there 
 was a vacancy on the pension list and he had become Colonel or 
 Major-General. He had also the right to continue to serve all his 
 life on full pay until he became a Major-General, with the certainty 
 of becoming a Colonel-Commandant at about ^1000 a-year. A 
 Warrant of 1881 made removal to the Half-pay list compulsory, 
 and retirement on pension virtually compulsory, after five years' 
 service as Lieutenant-Colonel. A Warrant of 18S4, applicable to 
 the Petitioner, enacted that certain officers retired compulsorily 
 under previous VVarrants should have such an addition made to 
 their retired pay as the Secretary of State should, on the report of 
 the Army Purchase Commissioners, consider equivalent to the 
 loss incurred by the operation of such Warrants. Col. Mitchell, 
 having been, on his compulsory retirement, Jan. 19th, 1890, 
 placed on half-pay at the rate of ;£"45o per annum, with ;£'i5o 
 per annum as compensation under the Warrant of 1884, submitted 
 
846 Appe7idix T. 
 
 in his Petition, presented in Q. B. D., before Mathew, J., that the 
 compensation offered was inadequate. For the Crown it was con- 
 tended that compensation is at the pleasure of the Crown, and 
 that as the Petitioner's case was treated under the authority of a 
 Secretary of State, whose decision is final and binding, no Courts 
 of I^aw could interfere. 
 
 There can be no doubt that the result of this Petition will, as 
 the Glasgow Herald says, be watched with interest by all officers, 
 — and their number is far from inconsiderable, — who are affected 
 by the new arrangements. The case deserves to be watched with 
 interest by a yet wider circle than that of the persons whose personal 
 prospects are touched by the Royal Warrants. The contention that 
 the decision, in such a matter, of a Secretary of State is final and 
 binding, and one with which no Court of Law can interfere, 
 appears to us to involve a doctrine of grave Constitutional import- 
 ance. If allowed by the Queen's Bench Division, as to which we 
 have been unable to trace any decision, the case, apparently, not 
 having yet been reported, the allowance of this contention on the 
 part of the Crown would go far to render the subject's right of 
 Petition nugatory as far as may concern all who are engaged in 
 the Civil, Naval, or Military service of the Crown. This would, 
 in effect, oust a very seriously large proportion of Her Majesty's 
 subjects from the right of Petition, and it is difficult to see in 
 such a deprivation anything short of a serious attack upon the 
 rights of the subject. The Courts may consider themselves 
 estopped from reviewing the decisions of the Secretary of State 
 for War ; or they may hold that, on the facts, there was not a 
 sufficient cause for complaint on the part of the Petitioner to 
 justify the course of procedure by Petition of Right. This would 
 be a simple decision on the facts, and would leave the broad 
 question of the general right of Petition untouched. But if the 
 judgment of any Court, whether the Q. B. D., or on appeal 
 therefrom, should be given, or have been given, in favour of the 
 contention of the Crown that the Courts are barred by the 
 decision of a Secretary of State from taking cognisance of such a 
 case as that of Colonel Mitchell, — it would seem that it will be 
 high time for those subjects who are not in the service of the 
 Crown to consider how far such a decision may not indirectly 
 affect them, and gradually eliminate from the rights of the subject 
 this ex hypoihesi sometime cherished right of Petition. The real 
 question raised is not so much that of the individual rights, 
 whatever they might be held by a Court legally to be, of CoL 
 Mitchell, as the right of Petition to the Crown inherent, or 
 hitherto supposed to be inherent, in the subject, — a right believed 
 by no less an authority than Sir Edward Coke, and proved by 
 the action taken by his colleagues in Parliament at his advice, 
 to be of the highest Constitutional importance. It will be an 
 evil day for the subject when he can no longer * put up a Petition 
 of Right.' 
 
Appendix U, 847 
 
 U. 
 
 SUCCESSION BY TANISTRY IN THE PEERAGE OF 
 IRELAND, UNDER HENRY VIII. 
 
 A CURIOUS point seems to be raised in a Paper by Mr. G. J. 
 Hewson, M.A., in the Journal of the Royal Historical and 
 Archaeological Association (now Royal Society of Antiquaries) of 
 Ireland, Fourth Ser., vol. ix,, pp. 239-42, July-Oct. 1889, on the 
 Succession of the Early Earls of Tho?nond. Mr. Hewson appears 
 to contend that in the Patent of Henry VIII., creating Murrogh 
 O'Brien Earl of Thomond, 1543, 'with remainder, not to his 
 son Dermot, but to his nephew Donogh, who was his successor 
 by the law of tanistry,' Henry was acting on strictly Irish prin- 
 ciples of Law (Sir Bernard Burke's account, s.v. Inchiquin, in 
 his Peerage, leaves a doubt whether Henry provided for any 
 succession beyond that of the grantee's nephew ; if the Patent 
 was for life to Murrough, and then, for life, also, to Donogh, what 
 sort of Peerage was the Earldom of 1 543 ? ), and that it was 
 the new Patent, t. Edw. VL, issued in favour of Donogh, then 
 2nd Earl of Thomond, in 1552,— following on his surrender, says 
 Burke, of the earlier Patent, — which included a remainder in tail 
 male, which ^for the first ti?ne ' introduced the succession by 
 primogeniture into the chieftainship of Thomond. ' This,' Mr. 
 Hewson continues, ' was the cause of great commotion in 
 Thomond, as it affected the rights of Donal, Earl Donogh's 
 next brother, who was his successor by the law of tanistry.' It so 
 happened, however, fortunately for the peace of Thomond, it may 
 be presumed, that, as the Annals of the Four Masters tell us, this 
 ' contention did not long continue, for Donogh More O'Brien, the 
 Earl of Thomond, having died on Passion Saturday following, 
 [1553], Donal succeeded in his place.' On this Mr. Hewson's 
 comment is, ' As he should have done by the law of tanistry, 
 which had been superseded by the English patent of the year 
 before, which, however, had then little authority in Thomond.' 
 
 Mr. Hewson's explanation of Earl Murrogh's position in regard 
 to the chieftainship of Thomond by the Law of Tanistry may be 
 given in a few words. Murrogh, he says, * was not a usurper ; he 
 succeeded quite regularly according to the law of tanistry ; he 
 was the regularly elected tanist and successor to his brother 
 Conor, who died in 1539; another brother, Donogh, had been 
 tanist, but he died in 153 1, and Murrogh became tanist. It was 
 the regular course of events in Irish chieftainship, and in none 
 more so than in that of the O'Briens of Thomond.' 
 
 Mr. Hewson gives several more citations from the Four Masters, 
 to shew how the interference of the English Government on behalf 
 
848 ' Appendix U. 
 
 of Conor, son of Donogh, second Earl, and himself third Earl 
 under the Patent of 1552, was looked upon by the inhabitants 
 and the Irish in general, and the language of some of them, ex- 
 pressing as they do the 'abomination, hatred, disgust, and terror,' 
 which seized upon them on the banishment of Donal, the would-be 
 successor by Tanistry to Earl Donogh, seems sufficient to justify 
 Mr. Hewson's contention that they shew * how strongly the 
 principle of tanistry was fixed in the minds of the Irish.' It 
 would seem, therefore, that the action of Henry VIII. in issuing 
 Letters Patent for an Irish Earldom with remainders in accord- 
 ance with the Law of Tanistry, was a piece of statecraft on his 
 part, designed to pave the way for that introduction of primo- 
 geniture which was carried out in the same Earldom by Edward VI. 
 That Henry VI IL designed the introduction into Ireland, 
 among the Celtic chiefs, of a Peerage the honours of which should 
 in time take the place of the old Celtic Royal and Princely titles, 
 seems beyond question. The State Papers, Ireland, 1509-73, 
 edited by Mr. H. C. Hamilton, afford ample evidence that both the 
 King and his Deputy and Council in Ireland gave the most 
 careful consideration to the titles to be selected for the new Peers. 
 Thus, in regard to Murrough and Donogh O'Brien, we find, 
 op, cit. p. 63, that the Lord Deputy and Council recommend that 
 O'Brien should be created Earl of Thomond, and Donough 
 O'Brien a Viscount. The King in reply agrees that O'Brien 
 shall be created Earl of Thomond, but only allov\s Donough 
 a Barony, which was not going so far as the recommenda- 
 tion of his Irish representatives. Again, in the same letter, 
 Henry says that O'Neill may be created a Peer * by any 
 title except Earl of Ulster.' Similarly, the Deputy and Council 
 recommend, p. dd, that * McWilliam' [Bourke] be ' Earl of Clan- 
 ricard, not of Connaught' It is thus evident that great care wa'N 
 exercised as to the selection of the Titles to be conferred, and it 
 may be that Henry VIII., while desirmg to put an end to the 
 Brehon Law, yet, wishing to conciliate Irish feeling as far as he 
 deemed prudent, in creating an Earldom for the Chief of 
 Thomond, conferred it with limitations practically identical with 
 those of the Brehon Law of Tanistry. 
 
INDEX, 
 
 ABBEYS, Barons founders of, to have 
 custody of, when vacant, I2i. 
 
 Abhor rers and Petitioners, 642. 
 
 Act of Settlejjient, 232, 690 ; text of, 
 691-96. 
 
 Acts of Parliament, Private, how they 
 originated, 191, n. 3. 
 
 Acts of Supremacy and Uniformity, 
 passed 1559, 460-61 ; 1662, 657. 
 
 Addled Pari., 1 6 14, dissolved, 531. 
 
 Administration, system of, under Nor- 
 man and Plantagenet kings, 154 ; 
 right of Commons to enquire into 
 abuses of, 283, 290. 
 
 Advowsons, suits as to, 99. 
 
 A^er publiats, analogy of Folkland to, 
 
 "15. 
 
 Agricultural Labourers, discontent of, 
 with landowners, 411. 
 
 Agriculture, means proposed for resto- 
 ration of, atPeaceof Wallingford, 92. 
 
 Aids, contributions from the tenant to 
 his lord, 64 ; provision as to, made 
 in Afag. Chart., 1 19; not to be 
 made except by common counsel of 
 the nation, 134. 
 
 Alcred, deposition of, 35. 
 
 Alford, Mr , M.P., speech of, on Peti- 
 tion of Right, 565. 
 
 Alfred the Great, styled only King of 
 the West Saxons in his will, 12 ; his 
 character, 12, «. I ; light thrown on 
 the Land laws by his will, 16, n. ; 
 elected king to the exclusion of his 
 elder brother's children, 36 ; as a 
 legislator, 46. 
 
 Aliens, their disabilities, denization, 
 naturalisation, &c., 694, n. 3, [Cf 
 
 '43)- ^ . 
 
 Allen, Cardinal, founds Semmary at 
 Douay, 468, n. 2. 
 
 Altham, B., on legality of Proclama- 
 tions, 526. 
 
 Amercements, 122, 167, n. 2 ; deriva- 
 tion of the term, 123, and ib., n. i. 
 
 C.H. 
 
 Ancient English Laws, 45. 
 Ancient German polity, 6. 
 Anderson's case (writ of Habeas Corpus 
 
 issued into Upper Canada), 653. 
 Angevin or Plantagenet dynasty, the, 93. 
 Annates, [25 Hen. VIII., c. 20] [forbids] 
 
 payment of, to the Pope, 439, 445 ; 
 
 [annexed to Crown, 26 Hen. VIII., 
 
 c. 3, 449]- 
 Anne, Queen, her dislike of party 
 
 government, 704, and n. I. 
 Annual Indemnity Acts, /. Geo. II. in 
 
 favour of Dissenters, 785. 
 Annual Parliaments, 282. 
 Appeal, =?= Accusation, origin of this 
 
 private process, 131. 
 Appello Caesarem, Dr. Montague's, 
 
 575- 
 
 Appropriation of Supplies, first instance 
 of, 286. 
 
 Arbitrary imprisonment, Stat. Pet. of 
 Right, 3 Car. I., against, 569. 
 
 Archbishops, rank as high as members 
 of King's family, 30 ; to be nomi- 
 nated by King's conge d''elire, 444, 
 
 Armada, Spanish, 474, 483. 
 
 Arms, Protestants allowed to carry, for 
 their defence, by Bill of Rights, 684. 
 
 Army, Standing, supersedes [ancient 
 National force, 17th cent.], 203 ; used 
 by Charles to overawe parliament, 
 624; increased by Jac. II., 666; 
 sketch of military force in England, 
 666, n. I [to 669] ; made illegal by 
 Bill of Rights, without consent of 
 Parliament, 667, n. [opposed /. Car. 
 I. , Car. II. , Jac. II. , 667, n. ; t. Will. 
 III., 668, n. ; nation reconciled to, 
 1 816, tb.; Earl Russell on, ib. ; 
 Defoe on, ib.] 
 
 Arrest, freedom from, a privilege of 
 Parliament, 340 ; vindicated by Com- 
 mons [t. Jac. I.], 513, and ib. n. I. 
 
 Arthur of Brittany, 212; his sister 
 Eleanor, 213. 
 
 3 I 
 
850 
 
 Index, 
 
 Articles of Reform [ 1 3 1 2], 280 ; annulled 
 by 15 Edw. II., 281, «. I ; their pur- 
 port, ib., n. 2. 
 
 Articles of Religion made Thirty-nine 
 in numbtr, 462. 
 
 Arundel, Abp., 189. 
 
 Arundel, Earl of, committed to Tower, 
 1626, 560. 
 
 Ashby V. White, 1702, right to vote, 
 
 354. 
 
 Ashfordv. Thornton, 134. 
 
 Assassination practised by English on 
 Normans, 72; law of 'Englishry,' 
 against, it. 
 
 Assemblies, rebellious and unlawful, 3 
 & 4 Edw. VI. against, 412. 
 
 Assize, judges of, 167. 
 
 Assize of Arms, national militia revived 
 by, 97 ; requirements of the, regard- 
 ing military service, 196 ; renewed 
 and remodelled by Edw. I., 197. 
 
 Assize of Clarendon [1156], loi, 164, 
 
 175- 
 Assize of Northampton [1176], 118. 
 Assizes, provision made by Mag. 
 
 Chart, for, 122, 167. 
 Association of Christian Brothers, 
 
 429 ; Luther's writings circulated by, 
 
 431- 
 Athelings, sons or brothers of king, 
 
 33 ; word originally denoted noble 
 
 birth, ib. ; ranked above nobility, 
 
 ib. ; penalty for violation of their 
 
 rights, ib. 
 Athelstan, King, 13, 36. 
 Attainder, Bills of, 335, and n. 3, 397 ; 
 
 difference from Impeachment, 397, 
 
 n. 4. 
 Attainder and forfeiture for treason or 
 
 felony abolished, 410, n. 
 Attaint, Writ of, jurymen liable to, 180; 
 
 abolished /. Geo. IV., ib. ; object 
 
 effected by new trial, ib. 
 Atwy/Ws case (17 Edvi\ IV.), freedom 
 
 of speech, 342. 
 Audit of public accounts enacted by 
 
 Pari. [1341], 290. 
 Auriim reginae, payment of, 32. 
 Aylesbury men, case <7/"the, 355. 
 Aylmer's Harboroive of True and 
 
 Faithful Subjects, 503, and 504, n. I. 
 Azo, his ' Summa ' used by Bracton, 4, 
 
 n. 3. 
 
 BACON, Sir Nicholas, Lord Keeper 
 [on Pari. Freedom of Speech], 490. 
 
 Bacon, Francis, Lord Chancellor, 503 ; 
 advice to jac. I. for managing 
 
 Bacon — 
 
 Commons, 529 ; impeached, pun- 
 ished, and imprisoned, 542 ; sen- 
 tence remitted by James, ib. n. 2. 
 Ballot Act, 1872, 765 ; Universities 
 
 exempted from, ib. n. 2. 
 Bank of England established, 1694, 
 
 644, n. 2. 
 Bankes, Atty.-Gen., argument of, in 
 
 Hampden's case, 590. 
 Bar, the, Jac. I. attempts to repress 
 
 liberty of, 537, n. 
 * Baron,' a word of wide signification, 
 
 136. 
 Barons, unsuccessful insurrections of, 
 t. Will. II., 82; [new men raised up 
 as] by Hen. I. , 86 ; power curtailed by 
 Hen. II., 97 ; and by institution of 
 Scutage, 98 ; obtain Mag. Chart. 
 for people, 108 ; refuse to follow 
 John on foreign service, in, 114; 
 confederacy of, at St. Edmund's, 
 115; offer crown to Louis of France, 
 148 ; revolt of [1312, 1321], 279. 
 Barrow, Henry, executed for writing 
 
 seditious books, 480. 
 Bastwick, Dr., his trial with Prynne 
 and Burton, and sentence for pub- 
 lishing Elenchus Papismi, 583 ; [sent 
 to Scilly] by Star Chamber, 584 ; 
 popular sympathy for, ib. ; liberated 
 by Long Pari., 604, 
 Bates, John, case of \Case of Imposi- 
 tions], in Court of Exchequer, 1606, 
 519, 521, 572, and n. 1 [from 571] ; 
 decision of judges subversive of 
 liberty, 519 — 20. 
 Battle, wager of, 72 ; trial by, super- 
 seded by [Grand Assize], 96 ; de- 
 manded [181 7], Thornton^ case, 134 ; 
 abolished [1819], ib. 
 Beard, William-with-the, or Fitz Os- 
 
 bert, rising under, 102. 
 Bedchamber Question, 1839, 734. 
 Bede's history of English conquest of 
 
 Britain, 5, «. 2. 
 Belesme, Robert de. Earl of Shrews- 
 bury and Arundel, forfeited and 
 expelled kingdom, 86, and n. i. 
 Bell, Mr., M.P., [against] Monopolies, 
 
 1 57 1, 496. 
 
 Benefices, John concedes to Pope 
 
 [a veto on institutions] to, 418 ; greatly 
 
 abused, ib. ; Stat, of Provisors [1351], 
 
 forbidding Pope's nomination to, 420. 
 
 Benefit of clergy \t. Hen. VIII. ^, 430. 
 
 Benevolence, Jac. I. calls for general 
 
 [1614], 532 ; protests against, 533. 
 Benevolences extorted from the richer 
 
Index, 
 
 851 
 
 Benevolences — 
 
 classes by Edw. IV., 377; declared 
 illegal by Pari. Ric. III., ib. ; re- 
 introduced by Hen. VII., 390; 
 Morton'' s [or Fox''s\ Fork, ib. ; had 
 recourse to by Hen. VIII., 393 ; op- 
 pressive treatment of [Roach and 
 Reed for] refusing, 395. 
 
 Bennet, Sir John, impeached, 1621, 
 542. 
 
 Berkeley, J., his Judgment in Hampden's 
 Ship-money case, 592-3 ; imprisoned, 
 607, ;/. 
 
 Bible, English translation of, 1538, 
 456. 
 
 Bigod, Roger, Earl Marshal, alterca- 
 tion with Edw. I., 265, n. 3. 
 
 Bill of Rights, 16'^g, 231, ;z. 3, Declara- 
 tion of Right embodied and con- 
 firmed in, 681 ; text, 681-688. 
 
 Billeting of Soldiers and Mariners, 569, 
 n. 4 [Petit, of Right]. 
 
 Bills of Attainder, 335, 397, and n. 
 
 Bills, petitions to Pari, assume form 
 of Statutes under name of, 328 ; 
 Money Bills originate in Commons, 
 328 ; Peerage Bills in Lords, 329. 
 
 Bilson, Bp. [watches Case of Commen- 
 dams], 536. 
 
 Births, Marriages, and Deaths, Civil 
 registration of, 1836, 792. 
 
 Bishops : prominent members of 
 Witan, 10 ; arrest of the three, by 
 Stephen, 91 ; petition of Commons 
 for scrutiny into Ecclesiastical abuses 
 referred to, 433 ; their answer and 
 Hen. VI 1 1. 's criticism, 433-4 ; to be 
 nominated by congid'elire, 444 ; Oath 
 of Supremacy refused by [all but one], 
 464, and ib. n. 2 ; Bishops' Act, 1 566, 
 467 ; deprived of temporal jurisdic- 
 tion by Long Pari., 610, and n. 3 ; 
 Bills introduced in Commons for, 
 618, n. I {cf 610) ; attempt to ex- 
 clude from House of Lords, 746, n. i. 
 
 Bishops, the Seven, trial of, 1688, 188, 
 673 ; their names, 672, n. 2 ; Ma- 
 caulay on, 673. 
 
 Blair, Sir Adam, impeached, 1689, 
 580, n. 
 
 Bland, case of, 1585, 502. 
 
 Blount, Sir Thomas, Steward, Edw. II., 
 217. 
 
 Bocland, 15, 16, nn. ib. 
 
 Bohun [Humphrey], Earl of Hereford, 
 resists illegal exactions of Edw. I., 
 265. 
 
 Boleyn, Anne, married, 432 ; Elizabeth 
 born, ib. 
 
 Bolingbroke, Henry St. John, Visct., 
 case of impeachment of, 1715, 549, n. 
 
 Boniface VIII., Bull Clericis laicos, 
 264, 268 ; claims to be feudal lord of 
 Scotland, and commands Edw. I. 
 to withdraw his troops, 418 ; answer 
 of English Pari., ib. 
 
 Boniface IX., struggle of Crown with 
 [1391], 422. 
 
 Bonner, Bp., 412 [Commission to, on 
 Heresy, 1557] ; indicted by Home, 
 Bp. of Winchester, for refusing oath 
 of Supremacy, pleads Home not 
 lawful bishop, 467. 
 
 Book of Common Prayer, Acts for 
 Uniformity of Service, &c., Edw. VI., 
 457, and n. 2 ; Elizabeth, 461 ; 
 penal clauses for using any other form, 
 re-enacted in Act of Uniformity, 
 1662, 657. 
 
 Book of Rates, 1608, 521. 
 
 Borough- English, a variety of tenure in 
 burgage, 69. 
 
 Boroughs, Charters to, by Hen. I., 87 ; 
 extensively sold by Ric. I., 105 ; 
 growth of representation of, 237 — 9 ; 
 qualification of members for, 363 ; 
 electors in, ib. seq. ; great creation of 
 Rotten Boroughs by Edw. VI., Mary, 
 and Eliz., 414 ; great majority of, 
 venal, until after Geo. HI., 754. 
 
 Bos worth, battle of, 224. 
 
 B6t, compensation for injury, 32, 45. 
 
 Bracton, extensive borrowings from 
 Roman law in, 4, n. 3. 
 
 Bretigni, treaty of, 1 360, 296. 
 
 Bretwaldas, the, ii ; Egbert, eighth 
 king who was Bretwalda, ib. ; ety- 
 mology, ib. n. 2. 
 
 Breviarium, the, 4. 
 
 Bribery at Elections, attempt to pre- 
 vent by 9 Anne, c. 5, excluding all 
 but landowners from Commons, 362 ; 
 rep. 1838, ib. ; earliest precedent for 
 punishment of, Long''s case, 157 1, 
 502 ; prices at which seats were 
 openly sold, 755 > measures for sup- 
 pression of, ib. 
 
 Bridges, no town or man to be dis- 
 trained to make, 144. 
 
 Brihtric, king, poisoned by his wife, 32. 
 
 Bristol, John Digby, Earl of, refusal by 
 Car. I. of writ of summons to, 560 ; 
 complains to Peers, i/^. ; charged with 
 high treason, ib. ; retaliates by im- 
 peaching Buckingham, ib. 
 
 Britons (The), driven to western parts of 
 the island, i ; hypothesis as to inter- 
 marrying with English, 2, and n. 2. 
 
 3 I 2 
 
852 
 
 Index. 
 
 Bromley, Sir Henry, M.P., brings 
 forward Succession Question [/. 
 Eliz.], 494 ; committed to prison, ib. 
 
 * Brownists,' the [1603-4], 515, and n. 
 
 Buckingha?n, George Villiers, Duke of, 
 case of impeachment of, 1626, 543, 
 n. [cf App. O] ; opposition to, 557 ; 
 speech of Sir R. Cotton against, ib.', 
 King's message on impeachment of, 
 558 ; impeached by Earl of Bristol, 
 560 ; assassinated by Felton, 543, w. 
 
 Burdett, Sir Francis, case of, committed 
 to Tower for contempt of House of 
 Commons, 774. 
 
 Burgage, tenure in, 69. 
 
 Burgh, the, and its organisation, 20. 
 
 Burleigh, Sir William Cecil, Lord, 
 administration of, 488. 
 
 Burton, Henry, his pamphlet News 
 from Ipswich, 583 ; tried and sen- 
 tenced with Prynne and Bastwick, 
 ib. ; popular sympathy with, ib. ; 
 liberated by Long Pari., 604. 
 
 Bury, impeached [with Lyons, &c.], 
 1376, 292. 
 
 BusJieir s case, 1 670, immunity of Juries 
 established, 181. 
 
 Bute, [John, ist Marq. of], his Admini- 
 stration, 1762, 724 ; fall, 725 ; con- 
 tinued influence with King, ib. ; dis- 
 missal, ib. 
 
 Byron, Sir John [ist Ld. Byron], 
 Governor of Tower, vice Lunsford 
 [1641], 622, 
 
 CABAL MINISTRY, THE, 1671, 
 700. 
 
 Cabinet, the, its growth, 696, seq. ; final 
 establishment, under Geo. I. and II., 
 705 ; Ministry and Cabinet not 
 .synonymous, 707 ; secrecy of, 708 ; 
 the Premier, 709-711, n. ; relationsof 
 Cabinet to Crown and Parliament, 
 710, n. ; to Houses of Lords and 
 Commons, ib. n. ; three-fold capacity 
 of Cabinet Minister, ib. ; internal rela- 
 tions of Cabinet, ib. 
 
 Calvert, Mr. Secretary, 541, 550. 
 
 Calvin, Richd . , \rectl Colville], Post-nati 
 case, 7 Jac. I., 518, n. 2 ; 536, 696, n. 
 
 Cambridge, [Univ. of], Vice-Chancellor 
 deprived by Jac. II., 670. 
 
 Campbell, Lord, Libel Act of, 1843, 
 801. 
 
 Campion, Edmund, S.J., despatched 
 by Gregory XIII. to re-convert Eng- 
 land, 471; imprisoned, 472; exe- 
 cuted, 473. 
 
 Canons, new, promulgated by [un- 
 constitutionally prolonged] Convoca- 
 tion, 1640, 600. 
 
 Canterbury, double election to- See of 
 [1208], 112 : set aside by Pope, ib. 
 
 Carleton, Sir Dudley [V.-Chamberlain 
 of Household, 1626], 559. 
 
 Carrs case, 1680 [Press Laws], 795, n. 
 2. 
 
 Cart Wright, Thomas [Lady Margaret 
 Prof., Camb., 1 570], leads attack on 
 Episcopacy, 477 ; publishes -,4d'»^<7«z'- 
 tion to Parliament, ib. 
 
 Carticage, Danegeld [revived] under 
 form of, /. Ric. I., 102. 
 
 Case of Comiuendams, 1616, 532. 
 
 Castle-guard [yJ/fl^'-. Chart.\ 119. 
 
 Catherine, Queen, Hen. VIII.'s divorce 
 suit against, 432 [divorce pronounced 
 by Cranmer, 1533-4, 443]- 
 
 'Catholic Association,' the, 788. 
 
 Catholic Emancipation Act, 1829, 788. 
 
 Cecil, Mr. Secretary Robert [reports for 
 Committee of Commons, 1593], 503. 
 
 Celtic element in English nation, 2. 
 
 Ceorls, the, 24, 27 ; depressed prior 
 to Norman Conquest, 28, ;/. , 306. 
 
 Cerdic, ancient line of, supplanted for a 
 time, regains throne, 13. 
 
 Chamberlain of London v. Allen Evans 
 [1767], Lord Mansfield's Judgment 
 in, 785, and ;/. i. 
 
 Chancellor, subordinate to Justiciar, 77 ; 
 introduction of title, T. R. E., 157 : 
 derivation of, ib., n. I ; growth of 
 power, 158 ; rise of jurisdiction, 184 ; 
 equitable jurisdiction of, 185, and 
 n. 3 [extended, t. Edw. II., ib.'\ ; 
 [permanent, from 17 Ric. II., 1393, 
 190] ; encroachments of, on juris- 
 diction of Common law, 189 ; statutes 
 in restraint of, ib. et seq. ; office of, 
 regarded with distrust by Commons, 
 189-90. 
 
 Charles I., 1625-49 ; accession, 556 ; 
 political character, ib. ; first Pari., 
 557; [second Pari., 558;] message 
 to Commons on impeachment of 
 Buckingham, ib. ; [reply of Commons 
 to do., 559 ;] expedients to raise 
 money without Pari., 557, 561 ; en- 
 forces general loan, 561 ; third Pari., 
 1627, 562 ; opening Speech, ib. ; 
 gives assent to Petition of Right, 567 ; 
 violates it, 571 ; [second session of 
 third] Pari., 1628-9, ^^- 'y dissolved,. 
 577 ; intimates determination to 
 govern without Pari., 578 ; the ag- 
 gressor in conflict with Pari., 579 ;. 
 
hidex. 
 
 853 
 
 Chari.es I. — 
 
 [Case of] ship-money^ 584, et seq. ; 
 attempts to change Ecclesiastical con- 
 stitution of Scotland, 596 ; fourth 
 [Short] Pari., 1640, ib. ; offers to 
 give up ship-money for twelve subsi- 
 dies, 599 ; dissolves fourth Pari., ib. ; 
 resumes despotic courses, 600 ; 
 failure of his military operations 
 against Scots, 601 ; summons fifth 
 (Long) Pari., ib. ; his view as to 
 invalidity of statutes [without internal 
 assent], 611 ; goes to Edinburgh, 
 612 ; object of journey, ib. ; offers 
 office to Popular leaders, ib. ; at- 
 tempts to arrest the Five Members, 
 62 1; his speech to Commons, 628; 
 end of Constitutional struggle with 
 Pari., 631 ; his duplicity, 633, n. ; 
 illegal trial and execution, 635. 
 
 •Charles II., 1660-1685 ; chief Consti- 
 tutional statutes of, 639 ; first year of 
 reign by legal fiction the twelfth, ib. 
 n. I ; enters into conspiracy M'ith 
 Louis XIV. against National Church 
 and Civil liberty, 654 ; despotic 
 during last years of reign, 662. 
 
 Charlton, J., dismissed from [Bench] 
 by Jac. II., 669, n. 3. 
 
 Charter of Liberties of Hen. L, 83 ; 
 importance, 85. 
 
 Charters to Boroughs extensively sold 
 by Ric. I., 105. 
 
 Chatham, William Pitt, Lord, advo- 
 cated Pari, reform, 1766, 759. 
 
 {Chedder's case, 1403, 342, n.\ 
 
 Chester, Co. Pal., [and City,] admitted 
 to representation, 1543, 401. 
 
 Chester, Court of Co. Pal., jurisdiction 
 abolished, except in matters touching 
 King's private estate, 608, and n. i. 
 
 Christianity, conversion of English to, 
 10 ; influence of, ib. 
 
 Church, English, close alliance of, with 
 State, 10 ; deference to Rome, but 
 marked national character of, ib. ; 
 various ecclesiastical organisations 
 reduced to one National Church by 
 Abp. Theodore, ib. ; Ecclesiastical 
 unity precedes Civil, ib. ; enjoyed 
 independence before Conquest, 74 ; 
 afterwards brought into closer con- 
 nexion with Rome, ib. ; [practically] 
 identical with State before Conquest, 
 75 ; separation of spiritual from tem- 
 poral courts by William the Con- 
 queror, ib. ; but supremacy of Crown 
 maintained, ib. ; promises made by 
 lien. 1. to, 84 ; regains spiritual 
 
 Churchy English — 
 freedom [through St. Anselm], 89 ; 
 concessions to, by Stephen, 90 ; 
 supremacy of State over, maintained 
 by Hen. II., 95 ; relations with State 
 defined by Const, of Clarendon, 98 ; 
 of the Middle Ages, though despotic, 
 also democratic, lOi ; liberties of, pre- 
 served by Mag. Chart., 117 ; sepa- 
 ration of, from Church of Rome, 
 political and legal rather than reli- 
 gious, 416 ; always possessed marked 
 National character, ib. ; reformation 
 of, by Hen. VIII., 431 ; influence of 
 Luther's writings on Doctrinal Ref., 
 ib. ; King enacted to be ' the Supieme 
 Head of,' 448 ; dissolution of mo- 
 nasteries, 449-51 ; distribution of 
 the property of, 454 ; peculiar cha- 
 racter of Reformed national, 462 ; its 
 relation to Crown, ib. ; distasteful to 
 more zealous Protestants, 476 ; go- 
 vernment of, entrusted to seven Com- 
 missioners, by Jac. II., 671, and n. 
 
 Church of Scotland, interference of 
 Car. I. with [1638], 596 ; consequerit 
 rebellion, ib. 
 
 Chute, Sir Walter, sent to Tower, 1614, 
 
 531. 
 
 Circuits of Justices commence towards 
 end of Hen. L, 88 ; [estab. by Hen. 
 II.], 1 176, 166. 
 
 Citations to Court of Rome forbidden 
 by 27 Edw. HI., 421. 
 
 Civil equality of all ranks below peer- 
 age, 278. 
 
 * Civil List,' account of changes in 
 amount of, 738. 
 
 Civitas ox popiihis, the, 7. 
 
 Clarendon, Cojistitiitio?ts of, 98-100. 
 
 Clarendon, Assize of [1166], loi, 164, 
 
 175. 
 
 Clarendon, Edward Hyde, Earl of, 
 case of Impeachment of, 1667, 545- 
 46, n. ; death of, 546, n. 
 
 Clark, B., judgment in Bates'' Case, 
 520. 
 
 Classical writings, [Ilobbes on] influence 
 of, in the direction of liberty, 510, n. i. 
 
 Clement VII., vacillation and dupli- 
 city, in Hen. VIII. 's divorce suit, 
 
 431. 
 Clergy, The, high political and social 
 status of, 29 ; had their own Synods 
 for Church matters, 30 ; contest of, 
 with Hen. I., 89; concessions to, by 
 Stephen, 50 ; alienated from Stephen, 
 91 ; customs of, regulated by Consti- 
 tutions of Clarendon, 98 ; contest 
 
854 
 
 Index. 
 
 Clergy— 
 with Hen. II., ib. ; not to quit realm 
 withoutpermission,ioo; Constitutional 
 opposition of, to Ric. I. [on Cam- 
 cage], 103 ; represented in Pari. \t. 
 Edw. I.J, 261 ; but averse from 
 interfering in secular legislation, 262 ; 
 prefer their own assembly or Con- 
 vocation, ib. ; cease to attend Pari., 
 14th cent. [Scot. 17th], ib. ; laws 
 enacted by advice of, alone, ib., and 
 n. 2 ; retained self-taxation till 1664, 
 ib. ; since then have [assumed] right of 
 voting, 263 ; not now separate estate 
 of realm [save as legal fiction], ib. ; 
 [exactions from], by Edw. I., 264; 
 wealth, privileges, and encroaching 
 temper of, 429 ; Benefit of, ib. ; 
 Hen. VIII. 's opinion of oath taken 
 by, to Pope, 434 ; the whole body 
 in a Prcenninire, 436 ; pardoned on 
 heavy payment, and admitting King's 
 supremacy, 437 ; Act for Submission 
 of, 443 ; Abps. and Bps. to be ap- 
 pointed hy conge d'elire,/^/^; Thirty- 
 nine Articles made binding on [1571], 
 462 ; generally conform to Reforma- 
 tion, 465, and n. i ; marriage of, 476, 
 71. 2 ; deviations of, from Act of Uni- 
 formity stopped by Elizabeth, 477 ; 
 deprived, by Long Pari., of temporal 
 jurisdiction, 610, and n. 3. 
 
 And see Church — Ecclesiastical. 
 
 Clericis Laicos, Boniface VIII. 's Bull, 
 264, 268. 
 
 Clerks accused of ' crime, trial of 
 [1 164], 98. 
 
 Cnut, chosen King to exclusion of 
 House of Cerdic, 37 ; the great Earl- 
 doms under, 48 ; renews laws of 
 Edgar, 72. 
 
 Coalition Ministry [formed April, dis- 
 missed Dec], 1783, dismissed, 730- 
 
 Codification, early [English] attempts 
 at, 46. 
 
 Coinage reformed by Hen. II., 95, and 
 It. I. 
 
 Coke, Sir Edw., C.J., on legality 
 of Proclamations, 525 ; objects to 
 Judges being consulted sepai'atcly 
 by King or Law officers, 535, and 
 n. I ; collision with James, ib. ; 
 noble conduct, 539 ; dismissed from 
 Chief Justiceship, ib. ; disgrace his- 
 torical landmark, ib. ; moves in 
 Commons for committee to enquire 
 into grievances, 541 ; prosecution of, 
 550; committed to Tower, 553 ; ap- 
 
 Coke, Sir Edw., C.J.— 
 
 pointed Sheriff [1626], 558, n. 2; 
 speech of, in favour of a Petition of 
 Pight, 564. 
 
 Coke, SirJohn,M. P., [proposes Tonnage 
 and Poundage Bill, 1628-9], 573. 
 
 Colchester, siege of [1648], 633. 
 
 {Comitatus, Celtic, 8, Ed.'s n. 2.] 
 
 Comites, retainers oi princeps, 8, 25. 
 
 Commendation, 56, 57, n. 3. 
 
 Commerce, extraordinary expansion of, 
 during Tudor period, 380. 
 
 [Commission of Eighteen, 1398, usurp 
 powers of Pari. , 321.] 
 
 Commission of Reform [1386], 304. 
 
 Commissioners of Array appointed [13th 
 --16th Cents.], when invasion appre- 
 hended, 202. 
 
 Common lands, large enclosures of, 
 lead to insurrections [1549], 411, and 
 n. 2. 
 
 Common Law, encroachments of Coun- 
 cil on jurisdiction of, 186. 
 
 Common Pleas, to be held in some fixed 
 place \_Mag. Chart. \ 121 ; jurisdic- 
 tion of [/. Hen. III. J, 165, ;/. 3. 
 
 Commons, House of. See House of 
 Commons. 
 
 Communa, meaning of, 105, and ;/. 3. 
 
 Compurgation, facts at law decided by, 
 42 ; superseded by trial by jury, 96 ; 
 dies out, 176; retained some time 
 longer in boroughs, ib., and n. 3. 
 
 Concilium Oi'dinarium, King's, 182 ; 
 its extensive jurisdiction, ib. ; en- 
 croaches on Common law, 186 ; 
 statutes in restraint of, ib. ; relation 
 to Pari., 191, 697. See House of 
 Lords. 
 
 Conjii-matio Chartai'tim, [events leading 
 to, 264] ; 25 Edw. I. [1297], 270, and 
 n. 4. 
 
 Conge (felire, Abps. and Bps. to be 
 nominated by [1533-4], 444 
 
 Conscription and impressment, differ- 
 ence iDCtween, 609, n. i. 
 
 Conservators of peace, germ of office, 
 [1253-64], 199. 
 
 Constables, meaningof, Mag. Chart., 1 25. 
 
 Constitution, The, not derived from Celt 
 or Roman, 3; freedom of, 15th cen- 
 tury [Fortescue on], 377-9; Aylmer, 
 Onslow, Harrison, Hooker, and Sir 
 Thomas Smith on, t. Eliz., 503-5 ; 
 theory of inherent paramount power 
 in Regal office, repugnant to, 506 ; 
 progress of, since Revolution, 689 et 
 seq. ; growth of unwritten or conven- 
 tional Code of, 689. 
 
Index, 
 
 855 
 
 Constitutions of Clarendon, 98-100, 
 
 546, n. 
 Contempt of Court, arrest of members 
 
 of Pari, for, 347 ; Lord Cromwell's 
 
 case, 1572, ib. ; cases of, by members 
 
 of Pari., 348, n. 3. 
 Conventicle Act, 1664, 659, n. 2 {cf. 
 
 783). 
 
 Convention Parliaments, 1 660, 766 ; 
 1688-9, 675, 680, 766. 
 
 Convocation [re-modelled on Repr. 
 basis, /. Edw. I.], 262, and nn. I and 
 3 ; [cf. App. C], members of, in- 
 eligible for Commons, NowelV s Case, 
 351 ; unconstitutionally continued, 
 1640, after dissolution of Pari., 600 ; 
 promulgates new canons [1640], ib. 
 {cf [1604], 510, 7Z. 4) ; appoints new 
 oath to prevent innovations in re- 
 ligion, 600 ; epitome of hist., Hen. 
 VIII. to present time, 717, n. i 
 
 W' 443). 
 
 Cope, Mr., M.P., his Bill and Book 
 for ecclesiastical reform [1588], 493. 
 
 Copley, Mr., M.P., ^^^^[1558], 501. 
 
 Copyhold, transmutation of Villein 
 tenure into, 313, and «. 2. 
 
 Corbet, Sir John [one of Five Knights, 
 1627], 561. 
 
 Coronation, [Ecclesiastical] ceremony of, 
 [perfecting Election], 204, and n. 1. 
 
 Coroners for Counties, elected, 105 ; 
 Stat. Edw. 1. on duties of, 200, and 
 n. I. 
 
 Corporation Act [1661, 653 ; do.] rep., 
 1828, 788. 
 
 Corporations intimidated into surren- 
 dering charters, 1 683, 664, and n. I. 
 
 Cotton, Sir Robert, speech against 
 Buckingham, 558. 
 
 Council of North, Court of, abolished, 
 608, and n. I. 
 
 Council, See Cotuilium Ordinaritim, 
 Magnum Concilium and Privy Coun- 
 cil. 
 
 Counties Palatine, created by the Con- 
 queror, 62. 
 
 County franchise enjoyed by all free- 
 holders, 356-7 ; restricted to 40J. free- 
 holders, 8 Hen. VI., 358. 
 
 County and Hundred Courts, 
 strengthened. Hen. I,, 87. 
 
 County representation before De Mont- 
 fort's Pari., 242-6. 
 
 Courts of Hundred, constitution, 40 ; 
 organisation, weakened by private 
 jurisdictions, 41. 
 Courts of Law, separation of Ecclesias- 
 tical from Civil, 75' 
 
 Courts-Martial, resorted to by Eliza- 
 beth, 483. 
 Coutances, William of, secretly ap- 
 pointed Justiciar by Ric. I., 104, 
 and n. I ; recognised, ib. 
 Covenant, Solemn League and [1638], 
 596 ; [adopted by Eng. Pari. 1643], 
 632. 
 Cowell, Dr., Law Dictionary or Inter- 
 preter, 523; extravagant assertions 
 of King's absolute power in, ib. ; 
 James's Proclamation suppressing, 
 525, n. 
 Crawley, J., Judgment by [for] Crown, 
 Hampden^ s case [cited], 592 ; im- 
 prisoned [for], 606, n. 2. 
 Creighton, a Scottish Jesuit, captured 
 [1584] at sea, bearing plan for Spanish 
 invasion, 473. 
 Crewe, Sir Thomas, Royal Commis- 
 sioner in Ireland, 1621, 553. 
 Croke, Sir George, Judgment m Hamp- 
 den'' s case, 592. 
 CrojHwell, Lord, case of, 1572, 347. 
 Cromwell, Thomas, Earl of Essex, 
 questions Judges as to [possibility of 
 disputing Attainders] for treason, 
 398; Hen. VIII. 's vice-gerent in 
 matters ecclesiastical, 450 ; executed, 
 398. 
 Cromwell, Oliver, importance he at- 
 tached to passing of Grand Remon- 
 strance, 615 ; made Lord Protector, 
 635 ; his government a despotism, 
 636 ; death of, ib. ; permanent effect 
 of his work, ib., n. 2 ; his attempt to 
 improve representative system, 753. 
 Crosby, Brass, Lord Mayor of London, 
 
 committed to Tower, 778. 
 Crown, power of, augmented by Hen. 
 II., 95 ; succession to, 204 seq. ; 
 ecclesiastical form of election to, sur- 
 vived to accession of Hen. VIII., 
 216 ; right of Pari, to re-settle succes- 
 sion, paramount, ib. ; entailed on 
 Hen. IV. and his issue, 219; doctrine 
 of indefeasible hereditary right first 
 promulgated by House of York, 221 ; 
 devised by Hen. VIII., 227 ; more 
 strictly hereditary since the Act of 
 Settlement, 235 ; Suspending and 
 Dispensing powers of the, 329 {cf. 
 669, 683, 688) ; dangerous increase 
 of power [under] Tudors, 384 ; 
 legal liability of servants of, 386 ; 
 power increased by assumption of 
 ecclesiastical supremacy, 399 ; rela- 
 tion of Reformed Church to, 462 ; 
 conflict with Commons, 489-91 ; 
 
856 
 
 Index, 
 
 Crou n — 
 
 Papists excluded from, 687 ; declara- 
 tion to be made by King or Queen 
 on succession, ib. and 688, n. i ; legal 
 prerogatives of, untouched at Revolu- 
 tion, 716; Resolutions of Mr. Dun- 
 ning on influence of, 730 ; revenues 
 of, 732. 
 
 Crowii debts, Mag. Chart, on, 144-5. 
 
 Crown lands placed at disposal of 
 railiament, 740-41, and ;;. I. 
 
 Culpeper, Sir John [cr.Lord Colepeper], 
 made Chancellor of Exchequer by 
 Chas. I., 622. 
 
 Cumbria, or Strathclyde, Britons in- 
 dependent in, 2. 
 
 Curia Regis, 73 ; organised [by Roger, 
 Bp. of Sarum, 1107-49], 88; re- 
 organised by Hen. II., 96 ; constitu- 
 tion and powers, 158 ; titles of mem- 
 bers, 160, n. 2 ; changes t. Hen, II., 
 164 ; division into three courts, 165 
 — meaning of words, ib., n. 2, 236. 
 
 Custodes pads, c>ffice of, 199. 
 
 Customs duties, not mentioned in Peti- 
 tion of Right, 571, n. ; illegally levied 
 by Jac. II., 664. 
 
 Cynewulf, elected King by Witan 
 vice Sigebert deposed, 35^ 
 
 Cyrdng, or King, title of, assumed by 
 Teutonic leaders, 9 ; meaning, 30, n. 
 
 DAMAREE and Purchase, case of, 
 408, n 
 
 Danhy, Thomas Osborne, Earl of, case 
 of impeachment of, 1679, 545-47, n. ; 
 death of, [1712,] 547, n. 
 
 Tanby's party, 1688, their opinions, 
 676. 
 
 Danegeld, cost of mercenary troops de- 
 frayed by, 77 and ;;. I ; revived by 
 Ric. I., 102 ; natuie of, 160 and ib. 
 n. 3. 
 
 Danes closely allied in race, language, 
 &c., to Germans, 3 ; invasions of, 
 hasten consolidation of the various 
 kingdoms, 12 ; similarity of institu- 
 tions to those of English, //;. ; limits 
 of occupation under treaty of Alfred 
 and Guthrum, ib. ; reduced' to sub- 
 mission, 13 ; fresh attacks from, ib. ; 
 English Royal house supplanted by, 
 /■/;. 
 
 Darnel, Sir Thomas, case of ^ [or Case of 
 the Five Knights,^ 1627, 561, 562, 
 563, 648. 
 
 l)aven]iort, J., imprisoned for Judg- 
 ment for Crown, Ship-money case^ 
 607, n. 
 
 De Asportatis Religiosoruniy 35 Edw. 
 I., 419. 
 
 Death, punishment of, introduced, 45 : 
 abolished by the Conqueror, 73 ; re- 
 introduced for offences against Forest 
 laws, by William Rufus, 83, extended 
 to ordinary crimes by Hen. I., 88. 
 
 Debates in Parliament, publication of, 
 775 ; ' news-letters ' prohibited 
 [1694-8J, 776 ; conflict with the 
 printers, 1771, 777 ; reporting, still 
 in theory a breach of privilege, 778 ; 
 political results of reporting, 780 ; 
 right [of Pari.] to publish fair and 
 faithful report, 782. 
 
 Debt, pleas of. King's court to have 
 jurisdiction [Const. Clarend.], 99. 
 
 Debts due to Crown and to Jews, Mag. 
 Chart, on, 144-5. 
 
 Declaration for Liberty of Conscience, 
 by Jac. II., 1687, 671 ; mistrusted by 
 Nonconformists, 672 ; second do., 
 ib. ; to be read in all churches, ib. ; 
 petition of the Seven Bishops against 
 order, ib. ; their prosecution, and 
 acquittal, 673. 
 
 Declaration of Right ^X2.yixv\x^, 1688-9, 
 231, 679 ; embodied as an Act, The 
 Bill of Rights, 681, seq. 
 
 [Defoe, Daniel, Pamphlet by, ovl Stand- 
 ing Army, 1697, 646, n. 2, Ed.'s «.] 
 
 De Ilaeretico Comburendo, enacted on 
 petition of clergy alone, 262, n. 2 ; 
 passed, 2 Hen. IV. c. 15,426 — [Writ 
 under] abolished 29 and 30 Car. II. 
 c. 9, 427, n. I. 
 
 De hoi/line replegiando. Writ, 137, 648. 
 
 De la Mare, Sir Peter, Speaker, [first 
 Pari. Ric. II., and, without name,] 
 1376, 283, ;/. 3 ; imprisoned, 1376, 
 
 293- 
 
 De Mercatoribus, Stat, of Acton Bur- 
 neil [1283], 255. 
 
 De Militibus, i Edw. II. stat. i, 163 
 {cf 360, n.). 
 
 Denalagti, the, region where Danish 
 law was in force, 12. 
 
 Denman, L. C. J., [denies] Parliamen- 
 tary privilege [of publishing Libel], 
 781. 
 
 De odio et atid writ, to be given gratis, 
 127, 648. 
 
 Derby, Earl of, on House of Lords and 
 public opinion, [1846], 748, n. 
 
 Dering, Sir Edward, introduces the 
 ' Root and Branch Bill,' [1641], 618, 
 n. ; expelled for printing his own 
 speeches without leave, 776, and 
 
Index. 
 
 857 
 
 De Tallagio non Concedendo not an 
 actual statute, 272, and ib. n. 2. {cf. 
 568). 
 
 I^igges, Sir Dudley, Royal Commis- 
 sioner in Ireland, 553 ; committed to 
 Tower by Car. I. 559 ; made M. R.. 
 deserts Popular party, 579. 
 
 Disfranchising statute, first, 1430, 358, 
 
 Dispensing pozver o{ \.\it Crown, 329-30 ; 
 assumed byjac. II., 669 ; decision of 
 Judges for, ib. ; declared illegal by 
 Bill of Rights, 683, [688]. 
 
 Dissenters. See Nonconformists. 
 
 Dissenters' Marriage Act, 1836, 792, 
 
 Dissenting Ministers' Act, 1779, 787. 
 
 Diurnal Occurrences of ParliaTuent, 
 1641-60, 745. 
 
 Divine right of Kings, theory of, 510 ; 
 adopted by Hierarchy, ?A, n. 4; ela- 
 borated into system by Filmer, ib., 
 n. 5 ; negatived, 1688, 690. 
 
 Domesday Book, 60, and n. i. 
 
 Domesday Survey decreed, 60 ; its 
 quick completion, &c., ib. 
 
 Dover, Prench land at, 1 295, 259 ; 
 secret treaty of, 1670, 654. [Henry, 
 Lord Jermyn of, Roman Catholic 
 P.C, 1686-7, 669, 670, and n.\ 
 
 Downing, Sir George, proviso intro- 
 duced by, in Subsidy Bill, 17 Car. II. 
 c. I, 644. 
 
 Duces, leaders in war, authority based 
 on personal valour, 7. 
 
 Duke, creation of title, 187, n. 3. 
 
 Dunning, Mr., celebrated resolutions, 
 1780, on influence of Crown, 730. 
 
 EALDORMAN, title of Teutonic 
 leaders, 9 ; later signification, 29. 
 
 Earl, Sir Walter, [one oi Five Knights^ 
 1627], 561. 
 
 Earldouis, power of great, /. Cnut and 
 T.R.E., 48 ; abolished, T.W.C., 61. 
 
 Earls, jurisdiction of, restricted [to 
 single shire], 61. 
 
 Ecclesiastical abuses, 429 ; statutes in 
 restraint of probate fees, 434 ; mor- 
 tuaries,435 ; pluralities,non-residence, 
 and clerical trading, ib. ; of citation 
 of persons out of their dioceses, 439 ; 
 of appeals to the Pope, 441. 
 
 Ecclesiastical affairs in England influ- 
 enced by those in Scotland, 480. 
 
 Ecclesiastical appeals not to go further 
 than Abp., without King's consent, 
 100. 
 
 Ecclesiastical causes, Court of Com- 
 missioners for, established by Jac.II., 
 670. 
 
 I Ecclesiastical courts, [separated from 
 i Temporal] by the Conqueror, 75 ; 
 j jurisdiction of [C^;;j-/. 67ar<?«^.], 98 ; 
 appeal from, to Rome, forbidden, 
 441 ; course of appeal regulated, 443 ; 
 Commissioners to hear and deter- 
 mine finally, appointed, ib. ; termed 
 Delegates of Appeals, and only super- 
 seded by 2 & 3 Will. IV., c. 92, ib. 
 72. 2 ; Bill introduced into Commons 
 for reform of, [ 1 593J. 494 ; deprived of 
 power to inflict fine, imprisonment, 
 &c., 608. 
 
 Ecclesiastical divisions, 24. 
 
 Ecclesiastical elections only nominally 
 free, 112. 
 
 Ecclesiastical polity of Elizabeth, 459. 
 
 Ecclesiastical Preferments : right of 
 Pope to [veto on], conceded by John, 
 418 ; greatly abused /. Hen. III., i(>. 
 
 P^dburga, Queen, 3^. 
 
 Edgar crowned King of all England, 
 13 ; his wife, 32. 
 
 Edgar the Atheling, 49. 
 
 Edmund, \\\nz, 13. 
 
 P^DWARD the Elder, 13. 
 
 Edward the Confessor, chosen King 
 in preference to son of elder brother, 
 36 ; recommends Harold as his suc- 
 cessor, 49 ; lavvs of, renewed by 
 the Conqueror, 71, 72 ; and granted 
 to nation by Hen. I., 85. 
 
 Edward I., 1272-1307, English Jus- 
 tinian, 201 ; succession to crown, 
 214; first King who reigned before 
 coronation, ib. ; preferred Great 
 Councils to Parliaments, 252 ; first 
 general Pax-1., 1275, 253 ; capacity 
 for government, 259, n. I ; alter- 
 cation with Roger Bigod, 265, and 
 71. 3 ; harangues people at Westn)inster 
 Hall, 267 ; a grand remonstrance 
 presented to, 268 ; [grants] Confir- 
 inatio Chartaruni, [1297], 270. 
 
 Edward II., 1307-27, [Proclamation 
 on] succession to Crown, 216 ; first 
 King whose reign dates from day 
 following death of predecessor, 205 ; 
 deposition, work of barons, sanc- 
 tioned by Pg.rl., 217 {cf. 279). 
 
 Edward HI., 1327-77, succession to 
 Crown,2i8; illegalities and disregard 
 of Constitutional formalities, 283- 
 288. 
 
 Edward IV., 1460-73, elected King, 
 222 ; long suspension of Pari, under, 
 377 ; forced contributions under 
 name of benevole7tces from richer 
 classes, ib. 
 
SsS 
 
 Index. 
 
 Edward V., 1483, accession of, 373. 
 
 Edward VI., 1547-53, Religious refor- 
 mation under, 456. 
 
 Egbert, King of the West Saxons, 
 [supremacy of],*!!. 
 
 Eleanor, Queen, proclamation to secure 
 allegiance to Kic. I., 2iO. 
 
 Election, principle of, introduced 
 [in appointment of Coroners, 1194,] 
 105. 
 
 E'ection and representation, nation 
 early familiar with, 240. 
 
 JLieciions, systematic attempts to influ- 
 ence, [in Lancast. period], 324 ; 
 right of Commons to determine 
 contested, 348, seq., 513 ; early 
 abuse of sheriff's power of re- 
 turning Members, 348 (statutes to 
 restrain, 349) ; election cases, 350, 
 seij. ; abuse of exclusive jurisdiction 
 of Commons in, 356 ; trial of con- 
 troverted, transferred to Judges of 
 Sup. C. L. Courts, ib. ; qualifications 
 of Members for boroughs, 361 ; the 
 electors in boroughs, 363, seq. ; open 
 interference of Crown in, 414 ; first 
 precedent for punishment of bribery 
 at. Long's case, 157 1, 502 ; inter- 
 ference of Jac. I. in, 512 [and 11. 2] ; 
 answers of constituencies sought to 
 be influenced by Jac. L, 521, and 
 7t. I. 
 
 Electors, Commons claim right to de- 
 termine rights of, 348, seq. ; [Con- 
 ference] on, with Lords, {Goodtvin's 
 <'ase], 352 ; case of the Ayleslmry 
 men, 355 ; first statutes regulating 
 qualifications of, 358 ; of United 
 Kingdom, tabular statement of no. 
 of, 764, n. 
 
 Elfrida, Queen, 32, 
 
 Eliot, Holler and Valentine, case of, 5 
 Car. I., 339 : imprisoned and fined, 
 578. 
 
 Eliot, Sir John, committed to Tower 
 by Car. I. [1626], 559 ; [proposes 
 Three Resolutions] on adjournment 
 of House [being] ordered by the 
 King, 576 ; again, with other Mem- 
 bers, imprisoned and fined, 578 ; 
 death of, 579, n. 
 
 Elizabeth, i 558-1603, title to Crown, 
 228 ; question as to legitimacy, 227, 
 n. 2 ; Act passed on her accession, 
 228 ; importance of period of her 
 reign, 459; her government despotic, 
 ib. ; Ecclesiastical polity [important 
 ior later Const, hist.], ib. ; enforces 
 strict conformity to established reli- 
 
 Eltzabeth — 
 
 gion, 461 ; title to throne purely Par- 
 liamentary, 468 ; Bull of Pius V. 
 excommunicating, 470 ; plots against 
 her life, 473 ; statute passed for her 
 protection, [1584], ib. ; her personal 
 predilections towards the [Cere- 
 monial and discipline of Rome,] 
 476, ;/. 2 ; civil government, 482 ; 
 illegal commitments, 484 ; do. pro- 
 clamations, 486 ; restrictions on 
 printing and Look-selling, 487 ; her 
 economy, ib. ; forced loans punctually 
 repaid, ib. ; conflict with Pari, as to 
 Succession, 489. 
 Ellesmere, Lord Chancellor, [gives 
 opinion against Coke, C.J., on Pre- 
 rogative, 1616], 538. 
 Ellys, impeached, 1376, 292. 
 Empson and Dudley, agents of Henry 
 VH.'s extortions, 390; executed /. 
 Hen. VHI., 391. 
 English (The), origin of, I ; constitu- 
 tion of nation, 7th — nth cents., 14; 
 redeem their lands after Norman 
 Conquest, 53 ; revenge themselves on 
 local tyrants by assassination, 72 ; 
 support William Rufus against the 
 baronage, 83 ; their faithful support 
 of Hen. H., 86. 
 English institutions, gradual develop- 
 ment of, 47. 
 English institutions inherited from 
 
 Teutons, 3. 
 English laws confirmed by the Con- 
 queror, 71 ; representative men ap- 
 pointed to report on, 72. 
 * Englishry,' law of, Amnded on stat. 
 
 of the Conqueror, 73. 
 Entail, law of, 384, «. 2. 
 Eniick V. Carrington : general search 
 warrants declared illegal by Lord 
 Camden, 1765, 799. 
 Eorl, distinction between the, and the 
 Ceorl, 24 ; title probably of Jutish 
 origin, 29, u. ; word supplanted by 
 thegn, ib. 
 Equitable jurisdiction. Lord Camp- 
 bell's definition, 186, n. 2. 
 Escheat and forfeiture of lands, 67. 
 Esnas, the, 24. 
 
 Essex, Earl of, Geoffrey Fitz-Peter, 
 Justiciar, [/. Ric. L & Joh.], 104, 
 114, 241. 
 Ethelbert, laws of, 45. 
 Ethelred the Unready, King, 13 ; 
 deposed and restored, 35 ; law on 
 tithes, 498, ;;. 
 Ethelwald, deposition of, 35. 
 
Index. 
 
 859 
 
 Ethelwulf, gives offence by crowning 
 his wife, 32. 
 
 Exactions of Hen. VII., 389. 
 
 Exchequer, constitution of Court of, 
 160 ; title of members, ib, n. 2 ; 
 derviation of name, ib. ; sources of 
 income of, 161 ; fiscal matters con- 
 fined to, 165. 
 
 Exchequer Chamber, Court of, 166, 
 n. I ; jurisdiction of, merged by 
 Judicature Act in that of new Court 
 of Appeal, ib. 
 
 Excise, on beer, &c., [granted] by Pari, 
 [in exchange for abolition of Feudal 
 dues. Car. II.], 641 [and ;/. i]. 
 
 Excommunication from Rome, penal 
 statute providing against, [1389], 422. 
 
 Ex officio, the oath, 479. 
 
 FALKEAND, Lord, supports attain- 
 der of Strafford, 544, n. ; made 
 Secretary of State, 622. 
 
 Fealty, oath of, 59, 63. 
 
 Felons, lands of, \^Mag. Chart, on], 120 
 
 Fenwick, Sir John, attainder of, 1696, 
 547, n. 
 
 Ferrers, George, M. P., 1543, case of, 
 arrested, released by authority of 
 Commons, 344 {cf. 382), 500. 
 
 Feudalism, germ of, in relation between 
 princeps and comites, 9 ; effect of 
 Norm. Conq. on gradual estab- 
 lishment, 53 ; becomes general, ib. ; 
 Continental, 55 ; origin and growth, 
 ib. ; Church lands subjected to, 56 ; 
 growth of in England, 57 ; two chief 
 elements of, ib. ; difference between 
 English and Continental, 58 ; in 
 England system of tenure only, not 
 of government organisation, 59 ; 
 struggle between Royalty and, 80 ; 
 decay of, 107. 
 
 Field, Bp. of Llandaff, impeached, 1621, 
 542. 
 
 Filmer, Sir Robert, his Patnarca, 
 510, n. 5. 
 
 Finch, [C. J., afterwards] Lord Keeper, 
 advises extension of Ship-money to 
 whole kingdom, 593 ; judgment in 
 Hampden'' s case, ib. ; impeached, 603. 
 
 Fines on alienation, 66. 
 
 Fines to be assessed according to old 
 English laws, [Ch.] Hen. I., 84; 
 pro respectu militia:, introduced by 
 Edw. L, 163 ; remedial stat. De 
 militibiis, ib. ; not abolished until 
 /. Car. II., ib. 
 
 First Fruits [taken from Pope, 1531-2, 
 
 First Fruits — 
 439] ; annexed to Crown by Hen. 
 VII., 449 ; given up by Mary ; 
 again vested in Crown by Elizabeth, 
 461. 
 
 Fisher, Bp., refuses oath for mamte- 
 nanceof Hen. VIII.'s Royal Succes- 
 sion Act, 447 ; executed, 449. 
 
 Fitzharris, Edward, case of impeach- 
 ment of, 1681, 547, n. ; executed, 
 548, n. 
 
 Fitz-Peter, Geoffrey, Earl of Essex, 
 Justiciar, 104, 1 14, 241. 
 
 Fitzwalter, Robert, [12 15], 151. 
 
 \_Five Knights, case of the, or DarneVs 
 case, \(iil, 561.] 
 
 Five Members, impeachment and at- 
 tempted arrest of the, 622 ; articles of 
 impeachment, 623, ;/. ; illegality of, 
 624 ; preparations made for arrest of, 
 ib. ; arrest attempted by King with 
 armed force, 627 ; thwarted by with- 
 drawal of the Members from House, 
 ib. ; design of attempted arrest, 630 ; 
 the real cause of the war, ib. 
 
 Five-Mile Act, 1665, 659. 
 
 Flambard, Ranulf, Justiciar of William 
 Rufus, 80 ; his rigid exaction of 
 feudal dues from church and lay 
 tenants of Crown, 81. 
 
 Fleming, C.B., judgment in Bates'' 
 case, 520; [as L.C.J.,] on legality 
 of Proclamations, 526. 
 
 Floyd, Edward, violent proceedings of 
 Commons against, 547-50, and [55°] 
 n. I. 
 
 Folc-gemot, the, 41. 
 
 Folcland, 14, 15 ; becomes terra regiSy 
 17 ; King assumes disposal of, 57- 
 
 Foreign merchants allowed to travel or 
 dwell in England by Mag. Chart., 
 
 143- 
 
 Foreign service, barons deny liability 
 to, 264-5. 
 
 Forest Courts, compulsory attendance 
 at, abolished by Mag. Chart., 130. 
 
 Forest Laws, Charter issued by Hen. 
 HI., 149 ; clauses of Mag. Chart. y 
 ib., n. 2 ; harshness of the Con- 
 queror's, 74; introduction of, trace- 
 able to Cnut, ib. ; Hen. I. upholds, 
 85 ; attempted revival of, by Car. I., 
 580 ; heavy fines inflicted for alleged 
 encroachments, ib. n. 2. 
 
 Forests, made by Hen. I. restored to 
 realm by Stephen, 90 ; extensions 
 of Royal, annulled by Long Pari., 
 608. 
 
 Forfeiture, lands of convicted felons 
 
86o 
 
 Index, 
 
 Forfeiture — 
 
 liable to, 67 ; abolition of, for treason 
 or felony, 120, 410, n. 
 
 Forster, John, description of Grand 
 Remonbtiance, [cited], 616, 619, 630 
 Fortescue, Sir John, quoted, 377. 
 
 [Fox, Ep., Qu. real author of so-called 
 Morton's Fork, 377.] 
 
 Fox's India Bill, 1783, Lord Temple 
 authorised by Geo. III. to protest 
 a<jainst in his name, 731 ; indignation 
 of Commons at this, ib. 
 
 Fox's Libel Act, 1792, 182, 800. 
 
 France, disastrous war with, entered 
 into by Car. I., 562. 
 
 Franchise, popular basis of, under Hen. 
 IV., 357 ; restriction of, 8 Hen, VI, , 
 358. {.SV^ Reform.) 
 
 Franchises, or liberties, private, 40. 
 
 Frankalmoign, tenure in, 63. 
 
 Freedoui of speech, inherent in consti- 
 tution of Pari., 336; violated in 
 Haxey's case, ib. ; Yonge^s case, 
 [1455]. 337 ; Strode' s case, [15 12], 
 338 ; claimed by Speaker, 1541, 339 ; 
 often violated, ib. ; case of Eliot, 
 Holies, and Valentine, 5 Car. L, ib. ; 
 confirmed by Bill of Rights, 340 ; 
 Queen Elizabeth on, 494. 
 
 Freedom from arrest, a privilege of 
 Pari., 336; cases, 340-346; speech 
 of Hen. VIII., 345 ; first legislative 
 recognition of, [i Jac. L, c. 13], 346 ; 
 abuse of privilege of, ib. ; limited to 
 Civil causes, 347 ; not available in 
 case of attachment for refusing to 
 obey writ of Habeas Corpus, ib. 
 
 Freehold or Free Socage, tenure in, 68. 
 
 Freeholders, county franchise enjoyed 
 by all, 1254, 356 ; qualification re- 
 stricted to 40^^. freeholders, 1430, 358. 
 
 Freemen broadly divided into eorls and 
 ceorls, 24 ; must be attached to some 
 superior, 27, 
 
 Fi'ee Socage or Freehold, tenure in, 68. 
 
 French Revolution, reaction in growth 
 of liberty of opinion caused by, 80 1. 
 
 Frith, the King's, 32. 
 
 Fj-ithborh, the, or Frankpledge, 39, 
 ,169, 195 [r/. App. A.] 
 
 Fuller, Nicholas, Bencher of Gray's 
 Inn, imprisoned [for arguments in 
 Court, t. Jac. I.], 538, n. 
 
 Fyrd, the, 32, 195 ; revived, 196. 
 
 GAME Laws, sprung from Forest Laws 
 
 of the (Conqueror, 74. 
 Gau, or pagus, 7. 
 
 Gaunt, John of, Duke of Lancaster, 
 
 unpopularity of his administration, 
 
 292, 
 Gavelkind, tenure in, 69. 
 [General Search Warrants illegal, ^w/^V/t 
 
 v. Carrington, 1765, 799.] 
 General Warrants illegal \Leach v. 
 
 Money\, 1765, 799. 
 George I. and II., indifference to 
 
 English politics, 705, 721 ; effect on 
 
 development of Constitution, ib., ib. 
 George 11., character as Constitutional 
 
 King, 721 ; opposition to elder Pitt, 
 
 ib. ; finally accepts him as Minister, 
 
 ib. 
 George III., 1760-1820; his long 
 
 struggle against Ministerial system, 
 
 722 ; character, ib. ; wretched educa- 
 tion, ib. ; disastrous effects of policy, 
 
 723 ; his determination to govern, 
 723 ; secret counsellors, ib.; arbitrary 
 measures, 725 ; organises an opposi- 
 tion to Ministers in Pari., 727, 731 ; 
 great influence during Lord North's 
 administration, 728 ; prepared to use 
 Royal veto against bills, 729 ; ab- 
 ruptly dismisses Coalition Ministry, 
 
 731 ; critical relations with Pari., 
 lb. ; makes William Pitt Premier, 
 ib. ; Personal influence diminished, 
 
 732 ; refusal to pass any measure for 
 relief of Roman Catholics, ib. ; dis- 
 like of Fox, ib. 
 
 Gerefa, the, probably chosen in Folk- 
 moot, 20, 71. I. 
 
 German element predominant in Eng- 
 lish people, I. 
 
 Germans, military valour of, 8 ; re- 
 spect paid to women, ib. ; women 
 celebrated for chastity, ib. ; tie ol 
 kindred strong, ib. 
 
 Germany, in time of Tacitus divided 
 amongst independent tribes, 6. 
 
 Gesith, the, 25. 
 
 Gilbert's Act (22 Geo. III. c. 83) 
 [Guardians of Poor], 499, n. 
 
 Giidas, De Excidio Britannia:, 5, 
 n. 2. 
 
 Gladstone, Rt. Hon. W. E., on per- 
 sonal influence of Sovereign, 718, 
 n. 3, 720, n. 2. 
 
 Glanvdl, Ranulf de, Justiciar [1180], 
 96, n. I, 
 
 Gloucester, Humphrey, Duke o*", 
 powers as Protector defined by Lords 
 [1427-8], 370-1. 
 
 Goodwin and Forttscne, case of, dis- 
 puted election, 352 [cf 513, «.). 
 
 Grand Assize, the, instituted by Hen. 
 
Index. 
 
 861 
 
 Grand Assize — 
 
 II., 96, 174; derivation of name, 
 174, n. I. 
 
 Grand Jury, the, development of, 176, 
 {cf. 171); present composition, ib. 
 n. 2. 
 
 Grand J^emons trance, the, laid on 
 table of House, 1641, 614 ; Court 
 opposition to, 615 ; seven day^' debate 
 on, ib. ; carried by eleven votes, ib. ; 
 Mr. Forster's description of, 616 ; 
 its preamble and principal clauses, 
 616-20 ; motion to print, 620 ; 
 Mr. Palmers 'protest,' ib. ; ordered 
 to be printed, 621. 
 
 Grajid Serjeant)', tenure by, 67 ; of 
 same nature as fiefs of office on con- 
 tinent, 68, and n. 3. j 
 
 Great Contract, the, proposed between 
 Jac. I. and Pari., 526; falls 
 through, 527. i 
 
 Gregory XIII. sends Jesuits to England I 
 to re-convert it, 471. 
 
 Greenwood, John, executed for writing 
 seditious books [1593], 480. 
 
 Grenville Ministry, 725. 
 
 Grey, Anchitell, his notes of debates 
 in House, 1667-94, 776. 
 
 Grey, Earl, vindicates creating new 
 peers to pass Reform Bill, 749. 
 
 Grey, John de, Bp. of Norwich, 1 12. 
 
 Grey, Lady Catherine, private marriage 
 with Earl of Hertford, 469. 
 
 Grey, Lady Jane, 413. 
 
 Grindal, Abp., 1576-83, sequestered 
 from his see, 478. 
 
 Grotius, the claims upheld in his Mare 
 Liberum, 586, n. I ; [opposed by 
 Selden, but now victorious, Ed.'s «., 
 ib.\ 
 
 Guilds, analogous to modern clubs, 21 ; 
 origin of, ib. ; 'frith-gild,' ib. ; mer- 
 chant guild, ib. ; responsibility of, 
 for offenders, 39. 
 
 Guizot, M., remarks of, on [union of 
 Knights and Burgesses in] Commons, 
 276, n. 2. 
 
 HABEAS CORPUS, essence of, con- 
 tained in Ma^. Chart., 137 ; privi- 
 lege of Parliament not available 
 [1757]) ii^ attachment for refusing to 
 obey writ of, 347 ; Darners case, 
 561 ; any person committed by Privy 
 Council [or by King] to have a writ 
 of, on application to King's Bench or 
 Common Pleas, 607 ; ancient reme- 
 dies for illegal detention, 647 ; their 
 inadequacy, 648 ; [Jenkes's case, 
 
 Habeas Corpus — 
 
 1676, 649]; provisions of 31 Car. II. 
 c. 2, 1679, 650-52 ; of Bill of Right!-, 
 and 56 Geo. III. c. 100, 1816, 652 ; 
 Atiderson s case, 653 ; 25 & 26 Vict. 
 c. 20 passed in consequence, ih. 
 
 Hivrred, the, 18. 
 
 Hales'' case, raising dispensing power of 
 King, [1686], 669 ; decision of 
 Judges in favour of prerogative, ib. 
 [Cf. 329]. 
 
 Halifax, Charles Montagu, Earl of, 
 case of impeachment of, 1 7 10, 54S, n. 
 
 Hall, Arthur, M.P., case of, [1581], 
 501. 
 
 Hampden, Sir Edmund, [imprisoned 
 with Darnel, 1627], 561. 
 
 Hampden, John, refuses to pay Ship- 
 money, 588 ; career, ib. n. 4 ; argu- 
 ments on the case in Exchequer, 590 ; 
 Judgment for Crown, 591 ; becomes 
 universally popular, 593 ; exertions 
 at election to Long Pari., 601 ; Judg- 
 ment of Exchequer against, annulled 
 by Long Pari., 6o5 ; firm opposition 
 to Car. I., 613. 
 
 Hardwicke, Lord, Marriage Act of, 
 
 1753, 785. 
 
 Harold, Earl, recommended by 
 Edward the Confessor to be his suc- 
 cessor, 49 ; elected by Witan and 
 crowned, ib. ; defeated and killed at 
 Senlac, 50. 
 
 Harold, King over all England, on 
 deposition of his brother Harthacnut, 
 
 Plarrison's Descri/'tion of England, 
 
 1577, 504-5. 
 
 Harthacnut, King, 13 ; deposed, 36. 
 [Cf 217.) 
 
 Haslerig, Sir Arthur, M. P., impeached 
 of high treason, \t. Car. L], 623. 
 
 Hastings, Warren, impeached, 1788, 
 549, n. 
 
 Hawkins, the sea-captain, attempt to 
 murder, 484. 
 
 Haxey, [Rev.] Thomas, prosecution of, 
 I397> 318 5 [l^i^i of> ib. ;] condemned 
 to death and pardoned, 319, and n. ; 
 judgment twice reversed and annulled, 
 1399, 337- 
 
 Heath, Sir Robert, Atty.-Gen., /. Car. 
 I., 562, 564. 
 
 Henry I., 1100-35, issues a Charter of 
 Liberties, 83 ; its Historical and Con- 
 stitutional importance, 85 ; so-called 
 Leges Henrici Primi [of later date], 
 ib. ; receives support of native Eng- 
 lish, 86 ; marries niece of Edgar 
 
862 
 
 Index. 
 
 Henry I. — 
 
 Atheling, ih. ; defeats his rebellious 
 barons, ib. ; raises up new men, ib. ; 
 checks feudal nobility by strengthen- 
 ing local courts, &c., 87 ; severity in 
 punishing offences against the law, 
 88 ; contest with St. Anselm on In- 
 vestitures, 89 ; his Charter referred 
 to at council of St. Alban's, 114; 
 his election to Crown, 207. 
 
 Henry H., 1154-89, succeeds without 
 opposition, 93 ; strength [from] his 
 Continental possessions, ib. and n. i ; 
 
 ' founder of Angevin dynasty, ib. ; 
 confirms Charter of Hen. I., 94; 
 establishes law and order, ib.; his 
 Inquest of Sheriffs, [i 1 70], ib. ; policy, 
 95 ; strong individuality of, 94, n. 3 ; 
 two great Constitutional results of 
 his reign, 95 ; legal improvements 
 made by, 96 ; his Ministers, ib. n. i ; 
 administrative reforms of, 95 ; re- 
 forms coinage, ib. [and n. i] ; greatly 
 augments power of Crown, 97 ; his 
 Scutage, [1159!, ib. ; Assize of arms, 
 [1181], ib. ; his contest with clergy, 
 ib. ; Consts. of C/arend. , 98 ; per- 
 sonally assists in Law Courts, 154-5 ; 
 taxes personal property, [1188], 161 ; 
 his succession to Crown, 209 ; death, 
 210, 
 
 Henry III., 1216-72, accession, 148, 
 213 ; first Charter, 148 ; second 
 do. and Forest Charter, 149 ; de- 
 clared of age, 151; third Charter, 
 ib. ; death, 214. 
 
 Henry IV., 1399-1413, his election to 
 Crown, 219 ; Crown entailed on, 
 and his issue, by Act of Parliamenl, 
 ib. 
 
 Henry VI., 1422-60, 36, «. 2; deposi- 
 tion of, 222 ; appointment of Regency 
 on his accession, 369, e^ seq. ; second 
 and third do., 372, ib. 
 
 Henry VII., 1485- 1509, general assent 
 of nation to his accession, 224; 
 Crown entailed on him and his 
 issue, 225 ; laws of, 386 ; hatred of 
 House of York, 388, n. 2 ; exactions, 
 389 ; so rich as to be practically in- 
 dependent of Pari., 391. 
 
 Henry VIII., 1509-47, form for coro- 
 nation of, 216, n. 3 ; Parliamentary 
 settlements of succession under, 225 ; 
 devises Crown, 227 ; validity of will, 
 ib. n. 4 ; speech on privilege of 
 Commons of freedom from arrest, 
 345 ; Regency Act, [1536], 373 ; great 
 outward respect of, for the law. 
 
 Henry VIII.— 
 
 381 ; servility of Pari, to, 391 ; ex- 
 cept in taxation, ib. ; his illustrious 
 victims, 397 ; his Proclamations 
 given force of law, 398 ; personal 
 popularity, 400 ; disposed to curb 
 Ecclesiastical abuses, but opposed to 
 Doctrinal changes, 431 ; book against 
 Luther gains him title of Defender of 
 the Faith, ib. ; divorce from Cathe- 
 rine and marriage with Anne Boleyn, 
 432 ; breach with [Pope irreparable], 
 ib. ; declares oath taken by [Prelates] 
 to Pope to be contrary to oath made 
 to him, 434 ; first Royal Succession 
 Act of, 446. 
 
 Heptarchy, word not strictly accurate, 
 II, n. I. 
 
 Hereditary peerage, Lord Redesdale on 
 what creates a, 239, n. i. 
 
 Hereditary right, growth of doctrine, 
 205 ; doctrine of indefeasible, [first 
 propounded by Ho. of York], 234. 
 
 Hereditary succession to Crown always 
 liable to exception, 216. 
 
 [Heresy, Sedition and, books contain- 
 ing, forbidden by Mary, 412 ; pos- 
 sessors to be executed by Martial 
 Law, ib.^ 
 
 Heresy, statute against, 2 Hen. IV., 
 262, n. 2, 426 ; Writ de Hcer. com- 
 btirendo [abolished 29 & 30 Car. II.], 
 427 ; [Persecution for] revives, [with 
 Lollardry], i6th cent., 429. 
 
 Heretoga, [original] title of Teutonic 
 leaders, 9. 
 
 Heriot, difference between, and Relief, 
 64, n. 3. 
 
 Heveningham, Sir John, [one of Five 
 Knights, 1627], 561. 
 
 High Commission Court, established 
 1583, 461, 478: complaints against, 
 523 ; [Reign of Terror of], /. Car. 
 I., 581 ; abolished by Long Parlia- 
 ment, 608 ; [practically] re-estab- 
 lished by Jac. II., 670-71. 
 
 Hildebrand's ecclesiastical feudalism 
 resisted by the Conqueror, 75. 
 
 Histriomastix, by Prynne, 583. 
 
 Hlaford^ the, individually responsible 
 for his men, 39 ; private jurisdiction 
 of, 40. 
 
 Hobart, Sir Miles, M.P., [locks door 
 of House, 1629], 576. 
 
 Holborne, Mr., argument of, in Hamp- 
 den's case, 592. 
 
 Hoiks, Denzil, {case of, 339] ; impri- 
 soned with Eliot, &c., 578 ; im- 
 peached, 622-3. 
 
Index. 
 
 86 
 
 Homage of tenant to lord, 63. 
 Hooker's Ecclesiastical Polity ^ 505, and 
 
 nn. 2 and 3. 
 Hoskins, Mr., M.P., sent to Tower, 
 
 1614, 531- 
 House of Commons, the, De Montfort 
 founder of, 247 ; /. Edw. I. did not 
 share in all legislation, 257 ; two 
 elements, knights and burgesses, 
 
 275 ; union in one house, \circa 1347], 
 
 276 ; [has drawn to itself] predomi- 
 nant authority in State, 279 ; growth, 
 very gradual, ib. ; right to concur 
 in legislation, [aff. 1322], 281-2 ; 
 establish three great rights, [/. Edw. 
 III.], 283 ; [payment to Members] 
 fixed, t. Edw. H., 287, n. {cf. 360, 
 n. [cf. for Scot., App. R.]) ; im- 
 peachments by, [1376], 296 ; packed 
 with Duke of Lancaster's supporters, 
 293 ; consulted by Edw. III. on 
 peace and war, 294-6 ; active con- 
 trol of, over various affairs of 
 State, 296-7 ; exclusion of lawyers 
 from, [1372], 297 ; great increase in 
 power of, 1377-89, 299; Parliament- 
 ary treasurers appointed, ib. ; right 
 of, to examine public accounts and 
 appropriate supplies established, 299 
 and 300, n. 2 ; bold language of, /. 
 Ric. II., ib. ; threaten to depose 
 Ric. II., 303, and n. 2 ; conduct of, 
 Haxe/s case, 318, 336 ; grant 
 Ric. III. a revenue for life, 321 ; 
 less independent during latter half of 
 15th cent., 323; growing import- 
 ance of, 324, and n. I ; money bills 
 to originate in, 326, 503; enquire 
 into public abuses and royal admini- 
 stration, 332 ; Petition of^l Articles, 
 1406, ib. ; consulted in questions of 
 national interest, 334 ; right of im- 
 peachment, ib. ; piivileges of, 336, 
 seq. ; claim oi{Ashby v. White), to de- 
 termine rights of ^/^r/^r J, 354 ; County 
 Members to be of gentle birth, 23 
 Hen. VI., 359; property qualifica- 
 tion for, 361 (abolished 1858, 362); 
 largely packed by nominees of 
 Crown, 384 {cf. 752) ; Wolsey's at- 
 tempt to intimidate, 392 ; reviving 
 independence, under Edw. VI. and 
 Mary, 414 ; petition for scrutiny 
 into ecclesiastical abuses, 433 ; 
 anxious for ecclesiastical reforms, /. 
 Eliz. , 462 ; Puritan ascendancy in, 
 489 ; conflict with Elizabeth as to 
 settlement of succession, ib. ; as to 
 ecclesiastical reforms, 490 ; causes of 
 
 House of Commons — 
 
 general submissiveness of, t. Eliz., 
 495 ; successful opposition of, to 
 monopolies, ib. ; vindicate their 
 privileges in many cases, 498-502 ; 
 assert right to originate Money Bills, 
 502 ; vindicate privileges against 
 Jac. I., 513; [assert privileges in 
 Form of Apology, 1603-4 J, 513-16 ; 
 members of, sent to Tower, 161 4, 531 
 {cf 553) ; revival of impeachments by, 
 541 ; petition against Popery and 
 Spanish match, 551 ; menacing lan- 
 guage of Jac. I. to, 552 ; Protesta- 
 tion o^, Dec. 1621, 552; dissolved, 
 and members imprisoned, 553 ; com- 
 mittee of grievances of, 563 ; resolu- 
 tions of, ib. ', draw up Petition of 
 Right, 564 ; irritation of, with Car. 
 I. [for circulating Petition of Right 
 with Yn?, first Answer], 572; con- 
 servative position of, in politics, and 
 in religion, 573 ; debate on right of 
 King to order adjournment, 57t) ; the 
 Three Resolutions of, 577 ; Eliot, Sel- 
 den, and other members, imprisoned, 
 578 ; raise question of privilege, 579 ; 
 demand redress of grievances before 
 voting supplies, 1640, 597 ; com- 
 mittee to confer with Lords on 
 grievances, ib. ; peculiar privileges 
 of initiating money bills, &c., dis- 
 cussed, 598, and n. ; assist Scots 
 against Car. I., 604; pass Triennial 
 Act [1641], ib. ; Grand Remon- 
 strance, 616-620; question of allow- 
 ing minority to protest against 
 decision of, settled in case of Mr. 
 Palmer, 620 ; impeachment and 
 attempted arrest [by King] of the 
 Five Members, 621 ; apply to City 
 for a guard, 624 ; articles of im- 
 peachment voted scandalous paper 
 by, 626 ; collisions with Lords, /. 
 Car. II., 637, n. ; petitions to, 
 641-3 ; appropriate supplies to spe- 
 cific purposes, 643-7 > appoint com- 
 mission of public accounts, [1666-7], 
 646-7 ; Resolutions of, declaring 
 Throne vacant, 1688-9, 677 ; sug- 
 gest conditions before calling William 
 and Mary to Throne, 678 ; draw up 
 Declaration of Right, 679 ; exclusion 
 of placemen and pensioners, 712 ; 
 exclusion of Judges, 714 ; protest 
 against use of King's name in de- 
 bates, 731 ; review of changes in 
 numbers, composition and political 
 influence, 751, seqa. ; bribery of 
 
864 
 
 Index. 
 
 House of Commons — 
 
 members, 758 ; right to commit for 
 breach of privilege, 773 ; content with 
 Lord Mayor and Aldermen of Lon- 
 don, 778 ; exclusion of strangers, 779. 
 {See Parliament, Privilege. ) 
 
 House of Lords, origin of Judicial 
 character, 191 ; development of ma- 
 jores barones into, 238 ; slow growth 
 of hereditary character of, ib. ; bold 
 language of, and unanimity with 
 Commons [/. Ric. IL], 301 ; number 
 of peers present in parliament of 
 1539, 400, n. I ; opposed to changes 
 in religion made by Elizabeth, 462 ; 
 Car. I. attacks privileges of, 560 ; 
 their right of rejecting or amending 
 money bills originating in House of 
 Commons discussed, 598, ;/. I ; col- 
 lisions with Commons, [/. Car. II.], 
 as to original nnd general jurisdiction 
 over appeals from courts of Equity, 
 637, n. ; Roman Catholics excluded 
 from, by Pari. Tests Act, 1678, 656 ; 
 dissent from Commons' resolutions 
 declaring throne vacant, 1688-9, 677 ; 
 withdraw opposition and vote William 
 and Mary to throne, 678 ; unwilling 
 absolutely to condemn Dispensing 
 power, 683, «. I ; changes in 
 numbers, composition, &c., of, 742- 
 50 ; [ Peerages of Scot, and Ireland, 
 745, n. and Ed.'s «.] ; present politi- 
 cal position, 748 ; oppose Reform 
 Bills of 1831-32, ib. ; extraordinary 
 creation of peers threatened, 749 5 
 proxies discontinued (1868), 750- 
 {See Parliament, Witenagemot. ) 
 
 Household suffrage re-estabhshed by 
 Reform Act, 1867, 366. 
 
 Howard v. Cosset, 782, n. I. 
 
 Hubert, Abp,, [hue and cry enforced 
 by, 1195], 198 ; speech of, on 
 coronation of John, declaring Crown 
 absolutely elective, 212. 
 
 Hundred-moot, the, 40. 
 
 Hundreds, or Wapentakes, townships 
 grouped into, 17 ; organisation of, 
 18. 
 
 Hungerford, Sir Thomas, first Speaker 
 on Rot. Pari., 1377, 283, n. 3. 
 
 Hunne, Richard, case oi, [15 15], 430. 
 
 Hus-catls, the, of Cnut, 195-6. 
 
 Hut'on, J., Judgment in case of Ship- 
 money, 487, n. 3, 592. 
 
 Hyde, Laurence, M.P., Bill on Letters 
 Patent, 1601, 496. 
 
 Hyde, Sir Nicholas, dismissed from 
 Commission of Peace, 1614, 531 ; 
 
 Hyde— 
 
 (C. J., /. Car. I.), gives judgment in 
 DarneVs case, 562 ; consulted by 
 Car. L on Petition of Right, 566. 
 
 IGNORAMUS, endorsement of Grand 
 Jury when finding 'no true bill,' 176, 
 n. 2. 
 
 Illei^al commitments under Elizabeth, 
 484 ; remonstrance of Judges against, 
 485. 
 
 Illegal exactions, Stat. Petition of Right ^ 
 3 Car. I., against, 568. 
 
 Impeachment by Commons, first in- 
 stance of. Lords Latimer and Nevill, 
 1376, 292 ; case of Michael de la 
 Pole, Earl of Suffolk, 302 ; power 
 of, [dormant Ric. II.— 28 Hen. VI.], 
 334 ; Commons accusers, Lords 
 judges, 335 ; right of, dormant 
 [under] Tudors, 386 ; difference be- 
 tween, and Bills of Attainder, 397, 
 71. 4 ; revival of, 1 62 1, 541, and«. I ; 
 important cases of, 1626- 1804, 543 — 
 549, ;/. ; pardon under Great Seal 
 not to be pleadable to, 696, and n. I. 
 
 Impositions, illegal, of Jac. I., remon- 
 strated against, [1609-10], 521 {cf, 
 536) ; denounced by Pari., 1614, 
 530. 
 
 Impressment declared illegal by Long 
 Pari., 609, ib. n. I ; difference be- 
 tween impressment and conscription, 
 ib. n. I. 
 
 Imprisonment, arbitrary, [declared il- 
 legal by] Petition of Right, 569. 
 
 [Incident, the, in Scot., 613.] 
 
 Income-tax, first introduced by Hen. 
 IL, 161. 
 
 Innocent III., struggle with John, 112 ; 
 nominates Stephen Langton to Can- 
 terbury, ib. ; places England under 
 interdict, ib. ; excommunicates and 
 deposes John, 113; supports John 
 against barons, ib. 
 
 Institutions, English, development of, 
 3 ; Germanic origin of, ib. 
 
 Insurrections ; of the villeins, 1 381, 
 306 {cf. 425) ; demands of do., 315 ; 
 1488, 1497, caused by taxation, 389 ; 
 1549, 411 ; their origin, ib. 
 
 Interdict, England under, by Innocent 
 III., 112. 
 
 Interpreter, Dr. Cowell's, 523, [524, 
 and n. 2]. 
 
 Intestacy, [Ch.] Hen. I. on, 84. 
 
 Invasion, military provision made by 
 John in case of foreign, 197 ; Com- 
 missioners of Array appointed when 
 
Index. 
 
 865 
 
 Invasion — 
 
 apprehension of, 202 ; ancient obli- 
 gations to keep arms, enforced by 
 Phil, and Mary, ib. 
 Investiture of tenant with land, 6^, 
 Ireland annexed to English Crown by 
 Hen. II., 95 ; first Charter of Hen. 
 III. extended to, 149, n. i ; authority 
 -of English Crown over, low during 
 Wars of Roses, 402 ; re-asserted by 
 Tudor kings, ib. ; Poynings' law, 
 1495, ib. ; [restored] to rank of King- 
 dom by Hen. VIII., 403, [and n. 2] ; 
 and assumed a more settled aspect 
 during his last years, ib. ; rebellion 
 and massacre in, [1641], 614 ; repre- 
 -sentation of Peerage of, in Pari., 
 U. K., 745, and ;/. I ; [Members for, 
 chiefly nominees, 757 ;] Reform Act 
 for, 1832, 763 ; 1868, ib., n. 5. 
 
 JAMES I., 1603-25, his succession to 
 Crown proclaimed by Council, 229 ; 
 legally speaking, a usurper, ib., [sed 
 cf, n. ij ; but made a legitimate 
 sovereign by his first Pari., ib. ; 
 tendency of religious and political 
 thought at accession, 507 ; effects of 
 Presbyterian education, 508 ; charac- 
 ter, ib. ; [Political] antipathy to 
 JS'onconformity, ib. ; Sully's epi- 
 gram on, ib. ; arbitrary nature of his 
 civil government, 510; general de- 
 meanour contemptible, 511, n. i ; 
 aggressor in conflict with Commons, 
 512 ; favourite scheme of union be- 
 tween England and Scotland prema- 
 ture, 518 ; financial difficulties, 519, 
 [528] ; attempts to rule without 
 Pari., 527 ; methods for raising 
 money, 528 ; position towards Com- 
 mons untenable, [1614], 531 ; calls 
 for a general benevolence, 532 ; his 
 collision with the Judges, 535-39 ; 
 Foreign pohcy, 540 ; summons third 
 Pari., 541 ; forbids Commons to 
 * meddle with mysteiies of State,' 
 551 ; on privilege of Pari., 552 ; 
 Constitutional results of reign, 555. 
 
 James XL, 1685-88, deposition of, by 
 Pari., 231 ; Bill introduced to ex- 
 clude him from throne, 1679, 660 ; 
 ascends throne, his despotic designs, 
 663 ; summons Pari. , 664 ; sub- 
 servient to France, ib. n. 2 ; in- 
 creases standing army, 666 ; procures 
 [decision by] Judges in favour of 
 Dispensing power, 669 ; publishes 
 [ist] Declaration for Liberty of Con- 
 
 James ir. — 
 
 science, [1687], 671 ; [2nd Dec, and] 
 prosecutes the Seven Bishops, [1688], 
 673 ; endeavours to [retrace his 
 steps], 674 ; disowns any alliance 
 with France, ib. ; flight, 675 ; un- 
 founded suspicions attached to birth 
 of his son, 676, and n. 
 
 Jeffreys, L.C.J. , intimidates corpora- 
 tions into surrendering charters, 664, 
 n. I. 
 
 Jenkes's case, 1676: difficulty in obtain- 
 ing a habeas corpus, 649. 
 
 [Jermyn of Dover, Henry, Lord, 
 Roman Catholic P. C, 1686-7, 669, 
 670, and It. ib.] 
 
 Jesuits and missionary priests in Eng- 
 land, 471 ; Act against, 1585, 474. 
 
 Jew Bill, 1753, 695, n. ; rep. next 
 session, ib. {cf. 791). 
 
 Jews, Mag. Chart, as to debts due to, 
 145 ; banished, 1290, suffered to 
 return by Cromwell, 790 ; formally 
 authorised to settle in England after 
 Restoration, ib. ; disabilities, ib. ; 
 removed as regards Corporations, 
 1845, and Pari., 1858, 791. 
 
 John (1199-1216), 'Rex Angliae ' on 
 Great Seal, 48 ; events which led to 
 Mag. Chart., no ; driven from 
 Normandy, ib. n. 2 ; [effects of] per- 
 sonal character, in; Church, baron- 
 age and people unite against him, ib. ; 
 struggle with Pope, ib. ; excommuni- 
 cated and deposed, 113 ; surrenders 
 kingdom to Pope, ib. ; account of 
 struggle with barons, 1 13-16 ; grants 
 the Charter, 116; attempts to 
 evade it, and renews civil war, 147 ; 
 personally decided case in Exchequer, 
 155 ; mode of succession to throne, 
 211 ; death, 148, 213. 
 
 Johnson, Dr., his Parliamentary re- 
 ports (1740-3), in- 
 
 Jones, C.J. Common Pleas, dismissed 
 from office by Jac. II., 669, n. 3. 
 
 Judges, to be skilled in law, [by 
 Mag. Chart.], 131 ; originally mem- 
 bers of Great Council, 192 ; their 
 position since Edw. III. reduced 
 to assistants and advisers, ib. ; 
 answers of, to questions of Ric. 
 II., 304 ; remonstrance of, against 
 illegal commitments, [t. Eliz.], 485 ; 
 servility of, in upholding illegal 
 acts of Car. I., 581 ; extra-judicial 
 opinion on questions by Car. I., 
 589 ; decision in Hampden's case, 
 591 ; six impeached by Long Pari., 
 
 3 K 
 
866 
 
 Index, 
 
 Judges — 
 
 603 ; five imprisoned, 606, n. 3 ; 
 provisions as to commissions of, in 
 Act of Settlement, 696 and n. i ; 
 the Common Law, always excluded 
 from Commons, 714; extended to 
 Scotch and Irish Judges /. Geo. II. 
 and Geo. IV., and by Supreme 
 Court of Judicature Act, M. R. 
 disqualified, 715. 
 
 Judicial murders, [Illustrious victims 
 of], /. Hen. VIII., 397. 
 
 Judicial organisation under the Con- 
 queror, 76. 
 
 Judicial system, ancient English, 38 ; 
 changes in, by Hen. II., 164. 
 
 Jtidicium parium of Mag. Chart. ^ 
 wide signification of, 140 {cf. 569). 
 
 Judith, wife of Ethelwulf, crowned 
 Queen, 32. 
 
 Junius' letter to King, 1769, 799 ; trial 
 of Woodfall the puislisher, 800. 
 
 'Junto,' The, 702, [and n. 2]. 
 
 Jury, principle of Trial by, contained in 
 Mag. Chart., 137; trial by [Re- 
 cognition of a], instituted by Hen. 
 II., 96 ; its origin, 169 ; growth of, 
 in civil cases, 171 ; earliest mention 
 of in statute law, \Const. Clarend.\ 
 173 ; jury were witnesses, 174 ; 
 growth of, in Criminal cases, 175 ; 
 difference between ancient and 
 modern, 177 ; unanimity procured 
 by 'afforcing,' 178 ; special witnesses 
 summoned as part of, ih. ; trial by, 
 [Palgrave on], according to old 
 English law, 177, n. 3 ; witnesses 
 distinct from, [23 Edw. HI.], 178; 
 evidence before, given at bar of 
 Court, t. Hen. IV., 179 ; nearly the 
 same as at present, [/. Hen. VI.], ib. ; 
 entitled to rely on their own know- 
 ledge down to Geo. I., 179; rule as 
 to venue, ib. ; liable at Common Law 
 to writ of attaint, [while Recogni- 
 tors], 180 ; and to fine and imprison- 
 ment by Star Chamber, {e.g., Throck- 
 morton'i case, 1554], 1 81 ; immunity 
 of, established {per Vaughan, C.J.], 
 in BushelVs case, ib. ; right of, 
 to find a general verdict, ib. ; right 
 of, to decide upon purport of a libel, 
 [asserted, Case of Seven Bishops, 
 denied per Lord Mansfield, North 
 Briton case\ 182 ; trial by, t. Hen. 
 VII., 386. 
 
 Justice to be equal, \Mag. Chart, on], 
 1 37 ; no sale, denial, or delay of, ib. , 
 141. 
 
 Justices, increaseofnumber, byHen. II., 
 96 ; regular circuits assigned to, ib. ; 
 itinerant, permanently established by 
 Hen. II., 166. 
 
 Justiciar, office created, [T. W. C], 77 ; 
 of high dignity, ib. ; acts as Regent 
 in King's absence, ib. ; represented 
 King in all matters, 156 ; growth of, 
 ib. ; the functions of, 157, n. i ; 
 authority [un]impaired [till /. Job.], 
 ib. ; abolished by Edw. I., ib. 
 
 KILLIGREW, Sir Wm., [sent by 
 Car. I. to Inns of Court, to furnish 
 guard], 624. 
 
 Kimbolton, Edward Montagu, Lord, 
 afterwards Earl of Manchester, im- 
 peached with Five Members, 622. 
 
 King: — title assumed by Teutonic 
 leaders, 9, [and Ed. 's n. 2] ; reputed 
 descent of from Woden, ib. ; power 
 limited by Witan, 30 ; gradual in- 
 crease of Royal power, 31 ; assumes 
 Imperial titles, ib. ; prerogatives of, 
 ib. ; Witan had power of deposing, 
 35 ; and of electing, 36 ; eldest son 
 of, not always chosen, ib. ; [cases of 
 exclusion of, ib. ;] illegitimacy not 
 valid ground of objection to, ib., n. 3 ; 
 power practically limited by advance 
 in power of nobles, 48 ; head of 
 whole administrative system, 154 ; 
 frequently [dispensed justice] in law 
 courts, ib. ; personal jurisdiction of, 
 continued in his Continual or Ordi- 
 nary Council, 182 ; office of, elective 
 before and after Conquest, 204 ; 
 [gradual growth of] doctrine of here- 
 ditary right, 205 ; the title of, ^rst 
 given before coronation to Edw. I., 
 215 ; younger children of, strictly 
 speaking, commoners, 277, w. 2 ; 
 ought not to notice matters pending 
 in parliament, 326; Stat., 1495, for 
 security of subject under de factOy 
 
 387. 
 Kingship, the, since the Revolution, 
 
 1688, 716. 
 King's Bench, Court of, origin and 
 
 jurisdiction, 165, and n. 2. 
 Knight, case of the negro, 317, n. 
 Knighthood, compulsory, revived /. 
 
 Car. I., 580; abolished by Long 
 
 Pari., 608. 
 Knights holding by military service to 
 
 have demesne lands free, [Ch. Hen. 
 
 I.], 84; tithe of, ordered by John 
 
 for military service, 197. 
 
Index. 
 
 867 
 
 Knight-service, tenure by, 63; inci- 
 dents of, 64. 
 
 Knox, John, his Blast against Regi- 
 ment of Women, 503, and n. 2. 
 
 LABOUR, statutes regulating, [1349- 
 
 68], 314, and n. i {cf. 498, «.)• 
 Labourers, rise of free, 313; [Statute 
 
 of, 1349, 314]- 
 
 LcEtiland, land lent or leased, 17. 
 
 Lancaster, Court of Duchy of; juris- 
 diction abolished, except in matters 
 touching King's private estate, 608, 
 and n. i. 
 
 Land, annual allotment of arable, by 
 ancient Germans, 6 ; pasture land 
 used in common, 7 ; general allot- 
 ment of, probable, 14 ; private 
 estates of chiefs, ib. ; all land re- 
 maining, common property, or Folk- 
 land, ib. ', absolute ownership in 
 severalty becomes general rule, 15 ; 
 two great divisions, Folkland and 
 Bookland, ib. ; connexion of social 
 status with ownership of, 25, and n. 
 4, 26, and n, i ; appropriation of, by 
 the Conqueror, 53 ; redemption of, 
 by English, after Conquest, ib. ; con- 
 fiscations of, ib. ; regranted to Nor- 
 mans, ib. ; tenures of, become uni- 
 formly feudal, ib. ; right of devising 
 by will, ceased at Conquest, 66 ; fines 
 on alienation, ib. ; sub-infeudation, 
 67 ; of felons, \Mas;. Chart, on], 
 120; prohibition as to alienation of, 
 150, and n. I. 
 
 Lajidsittende men, 59. 
 
 Langton, Stephen, nominated to Canter- 
 bury by Innocent IIL, 112; John 
 refuses to receive him as Abp., ib. ; 
 received by John, 113; supports 
 barons in struggle with John, 114; 
 suspended by Pope, 147. 
 
 Lathes, Kent divided into, 18, 
 n. I. 
 
 Latimer and Nevill, Lords, impeached, 
 [1376], 292. 
 
 Laud, Abp., case of impeachment 
 of, 1 64 1, 544, n. ; Charles guided in 
 despotic career by, 579 ; impeached 
 by Commons, 603 ; beheaded, 544, n. 
 
 Law, ancient English, 45 ; improve- 
 ments in administration of,/. Hen.IL, 
 94-6 ; provisions for administration 
 of, by Mag. Chart., 121-34; fre- 
 quently administered by King in 
 person, 154. 
 
 Law of Treason, 405-10, n. 
 
 Lawyers, practising, excluded from 
 Pari., [1372], 297, [and from Un- 
 learned Pari., 1404, 25] ; their learn- 
 ing, ability, and services in cause of 
 freedom, 511, n. 2 ; the literce vocales 
 of Commons, 529. 
 
 Leach v. Money, 1765, General Warrants 
 declared illegal, 799. 
 
 Leges Henrici Primi, 4 ; compiled [later 
 than /, Hen. L], 85, and n. 3. 
 
 Legislation, necessity for concurrence 
 of both Houses in, established, 283, 
 288. 
 
 Legislation, assent of Pari, necessary to 
 all new, t. Hen. VH., 385-6. 
 
 Leicester, Earl of, see Montfort. 
 
 Leighton, Alex., [punished by] Star 
 Chamber for publishing Sion^s Plea 
 against Prelacy, 582 ; liberated by 
 Long Parliament, 604. 
 
 Letters-patent, debate in House upon, 
 1601, 496 ; Queen Elizabeth's Mes- 
 sage, ib. See 555, n. i (new in- 
 ventions). 
 
 Lewes, battle of, [1264], 246. 
 
 [Lewes, Mise of, 1264, 246.] 
 
 Libel, law of, right of a jury to decide 
 upon purport of a, 182 ; Lord Mans- 
 field's ruling, ib. ; Fox's Act, ib. ; 
 used as an instrument to suppress 
 liberty of press, 799 ; strained inter- 
 pretation of, by Judges, ib. ; reversed 
 by Fox's Libel Act, 1792, [182], 
 800 ; Lord Campbell's Act, 1843, 
 801. 
 
 Liberty of subject, important discussion 
 as to ^special command of King being 
 sufficient cause] of detention, 561 ; 
 decision of Judges in Darnel s case, 
 ib., and 562. See Habeas Corpus. 
 
 Licensing Act, [1662, 794] ; revived, 
 1685, 796; expired, 1695, ib. 
 
 Life Peerages, precedents of, [between] 
 Ric. H. [and] Hen. VL, 240; at- 
 tempt to re-introduce, resisted suc- 
 cessfully by the Lords, ib. n. 4, and 
 750, [and Ed.'s n. 5]. 
 
 Lilburne, John, [punished by] Star 
 Chamber, 582 ; liberated by Long 
 Pari,, 604. 
 
 Lincoln, Hugh, Bishop of, [Const, 
 opposition by, 1 198], 103. 
 
 Lincoln, John Williams, Bp. of, sus- 
 pended by Commission Court, 581. 
 
 Littleton, Thomas, made Sol. -Gen., 
 [1629], 579 ; argument of, in Hamp- 
 den'' s case, 590. 
 
 Liveried retainers, measures by Hen. 
 VH. for suppressing, 388. 
 
 .-? K 2 
 
868 
 
 Inaex. 
 
 Loan, a general, demanded, enforced 
 by Car. I., 561 ; persons imprisoned 
 for refusing, ib. 
 
 Loans raised by Elizabeth, always 
 punctually repaid, 487, and n. 3. 
 
 Local Courts of Ilundred and Shire, 
 40-41. 
 
 Local custom, diversity of, 47. 
 
 Lollards, Rise of the, 424 ; Wycliffe and 
 his * poor priests, ' ib. ; revolutionary 
 and socialistic tendencies of, 425 ; 
 implicated in insurrection of villeins, 
 ib. ; reaction against, ib. ; [pretended] 
 stat. De Haeretico Comburendo against, 
 426 ; abortive insurrection of, under 
 Oldcastle, [/. Hen. V.], 428 ; further 
 penal laws against, ib. ; repressed but 
 not extinguished, ib. ; revival, i6th 
 cent., 429 ; [succ. by Assoc, of 
 Christian Brothers, /. Hen. VIH., 
 
 London, City of, its claims to be re- 
 garded as ' a member of the political 
 system,' 22 ; constitution [analogous 
 to Shire], ib. ; Charter to, of Conq., 
 23, of Hen. I., 87 ; recognised as a 
 Cotjimuna, [1191], 105 ; first appear- 
 ance of Mayor, ib. ; citizens support 
 barons against John, 116; liberties 
 secured by Mag. Chart. ^ 142 ; ad- 
 judged to have forfeited Charters, 
 and remodelled as tool of Court, 
 1683, 664 ; conflict of Lord Mayor 
 with Pad., [1771], 778. 
 
 Long^ [Thomas, M.P.], case of, i$yi, 
 [first] bribery [case], 502. 
 
 Long Parliament, the, 1640 — its cha- 
 racteristics, 601 ; releases victims of 
 the Star Chamber, 604 ; assists Scots 
 against Car. I., ib. ; passes Triennial 
 Act, [1641], ib. ; grants tonnage 
 and poundage for two months, 606 ; 
 al)oUshes Ship-money, 606; Star 
 Chamber, 607 ; do. High Com- 
 mission Court, 608 (^. 461); other 
 statutes of, 609-10 ; acts of, con- 
 sidered invalid by Car. L, 61 r; 
 leaders of, determined to appeal to 
 people, 612 ; Grand Remonstrance, 
 614-21. 
 
 Longchamp, William, Justiciar and 
 Chancellor, t, Ric. L, deposed, 
 104. 
 
 Lord Lieutenant, the, new officer 
 created /. Phil, and Mary, 202, n. i ; 
 his command over militia vested in 
 Crown by 34 & 35 Vict. c. 86, ib. 
 
 Lords, House of. See House of 
 Lords. 
 
 Lords Appellant, 'revolutionary pro- 
 ceedings of, in Pari., 305 ; revenge 
 of Ric. H. on, 320. 
 
 Lords Ordainers, appointment of, 131 2, 
 279. 
 
 Louis XIV., efforts of, in behalf of 
 Jac. H., 674. 
 
 Louis of France, the barons offer the 
 Crown of England to, 148, 217 ; 
 abandons his pretensions, 148. 
 
 Ludgershall, Borough of, seat sold 
 for ;^9,oco, 755. 
 
 Lunsford, Colonel, made Governor of 
 Tower by Car. I., 622 ; tumults 
 caused by appointment, removal de- 
 manded by Commons, ib. 
 
 Luther, Martin, influence of his writ- 
 ings on English Lollardism, 431. 
 
 Luttrell, Colonel, [adjudged by House 
 M.P. for Middlesex instead of 
 Wilkes], 772. 
 
 Lyndhurst, Lord, on House of Lords 
 and public opinion, 748, n. I. 
 
 Lyons, impeached, 1376, 292. 
 
 MACAU LAY, Lord, on prosecu- 
 tion of the Seven Bishops, 673-4 ; 
 on Revolution of 1688, 680 ; on 
 Ministerial system, 706. 
 
 Mad Parliament at Oxford, 1258, 245. 
 
 Magth or Mcegburh, the, 14, 39. 
 
 Magdalen College, Oxford, expulsion 
 of the Fellows by Jac. H., 670. 
 
 Magna Chaj-ta, 107 ; act of whole 
 people led by barons, ib. ; unselfishness 
 of barons, 108 ; practical and con- 
 servative character, ib. ; in reality a 
 treaty, ib. ; based on Ch. Hen. L 
 and Law of Edward the Confessor, 
 109; events which led up to, no; 
 analysis and su n >ina rv of, 1 16-46 ; 
 original text, 1 16-38 ; feudal clauses, 
 1 1 7-2 1 ; administration of law and 
 justice, 121-34 ; fundamental prin- 
 ciples of Constitution, 134-42; cities, 
 boroughs, commerce, 142-3 ; pur- 
 veyance, &c., 143-6; temporary pro- 
 visions, 146 ; mode of enforcing, ib. ; 
 twenty-five conservators, 147 ; at- 
 tempts to evade by John, ib. ; the 
 Pope declares it void, ib. ; renewed 
 by Hen. HL, with some omissions, 
 148 ; re-issued by him with omissions 
 and alterations, 149 ; [omissions in 
 re-issue, ib.] ; new clauses by Hen. 
 HL, 150; again re-issued, [9 Hen. 
 HL], 151, and in this form confirmed 
 by Edw. L, 152 ; confirmed thirty- 
 
Index. 
 
 869 
 
 Magna Charta — 
 
 seven times, 153 ; by whom con- 
 firmed, lb., n. I ; holding of Assizes 
 provided by, 122, 167; infractions 
 of, by Edw. I. , 269 ; Confirmatio 
 Chartarum, 25 Edw. I., 270. 
 
 Magnu?n Concilium, functions of, as 
 King's extraordinary court of justice, 
 191. 
 
 Mainwaring, Dr. Roger, case of im- 
 peachment of, 162S, 543, n. {Cf. 
 
 567, 575-) 
 
 Mallory, Mr., M.P., imprisoned by 
 Jac. I., 553. 
 
 Malton, Prior of, case of, freedom of 
 speech [9 Edw. II.], 341. 
 
 Manor, origin of word, 64, ti. I ; 
 difference between ancient, and 
 modern landed estate, 312. 
 
 Mansfield, Lord, held jury cannot de- 
 cide upon purport of a libel, 182 ; 
 reversed [by Libel Act], 1792, ib. ; 
 {held 13 Car. II., st. I, c. i, not 
 rep., 1780, 643, ;/. 2;] judgment in 
 case of City of London and Dis- 
 senters, 1767, 785 ; judgment in 
 Leach v. Money, 1765, 799. 
 
 March, Earl of. See Mortimer, Edmund. 
 
 Mare, Sir Peter de la. Speaker [without 
 name], 1376, 283, n. 3 ; imprisoned, 
 1376, 293. 
 
 Mark, the, 6 ; Mark system, ib. 11. i. 
 
 Marriage, right of lord to dispose of 
 female ward in, 66 ; money forfei- 
 ture if a suitable match rejected, ib. 
 and n. 2 ; of infant tenant in socage, 
 69, n. I ; payment for King's licence, 
 abolished, [Ch.] Hen, I., 84; notice 
 of, to be given, in the case of heirs, 
 to relations [Mag. Chart.'X, 118. 
 
 Marriage Act, Lord Hardwicke's, 
 
 1753, 7S5. 
 
 Martial law, often resorted to t. Eliz., 
 483 ; Stat. Petition of Right [against], 
 570. 
 
 Martin Mar-Prelate pamphlets, 479. 
 
 Martyn, Sir Henry, speech of in favour 
 of Petition of Right, 565. 
 
 Marvell, Andrew, reports debates, 776. 
 
 Mary, 1553-58, Act passed on acces- 
 sion of, 227 ; question as to her 
 legitimacy, ib. n. 2 ; violence of her 
 reign, 412 ; statutes of, affecting re- 
 ligion, abrogated by Elizabeth, 460, 
 462. 
 
 Mary, Queen of Scots, Roman Catho- 
 lics favour hereditary claims of to 
 succession, 469 ; her flight into Eng- 
 land, ib. ; conspiracy in her favour. 
 
 Mary, Queen of Scots — 
 
 ib. ; statute [27 Eliz. c. i] under 
 which she was tried, 473 ; her execu- 
 tion, 474, n. 
 
 Mass, penalties for celebrating or hear- 
 ing [i58a-8i], 472. 
 
 Master of Rolls, able to sit in Pari, 
 until Judicature Act, 1873, 715- 
 
 Matilda, Hen. I. attempts to secure 
 succession of, 208 [cf 41 3, n. 3). 
 
 Melbourne, Lord, dismissed [1834] by 
 Will. IV., 733; recalled [1835], 
 
 374. 
 
 Melville [Henry, Viscount], impeached, 
 1804, 549, 11. 
 
 Members of Parliament, entitled to 
 receive wages from constituents from 
 earliest times, 287, n. i [cf App. R.]; 
 expulsion and disqualification of,772,w. 
 
 Mercenary troops, employed during 
 civil war t. Steph., 92; expelled by 
 Hen. II., 95 ; John supported in his 
 tyranny by, iii, 148; employment 
 of, odious to English, 196. 
 
 Merchandise, illegal imposition on, by 
 Jac. I., 519 ; Bates'" case, ib. ; peti- 
 tion to Pari, [by merchants], 520 ; 
 arbitrary levying of customs on, [il- 
 legal] by Long Pari. [16 Car. I. c. 8], 
 606. 
 
 Merciless Pari., t. Ric. II., 306. 
 
 Middlesex, Lionel Cranfield, Earl of, 
 impeached 1624, 543 {cf 554). 
 
 Middlesex, case oi Sheriff of, 781, n. 2. 
 
 Military administration centred in King 
 by Hen. II., 97. 
 
 Military organisation of Anglo-Saxons, 
 [The Fyrd,'] 195. 
 
 Military service, tithe of knights ordered 
 by John for [1205], 197 ; Alodial and 
 Feudal systems amalgamated, ib. 
 
 Militaiy tenures abolished, 12 Car. II. 
 c. 24, 639. 
 
 Militia, the ancient ^r^, or national, 
 revived by Hen. II. [1181], 196; 
 command of, final ground for rupture 
 between Car. I. and Pari., 202; 
 superseded by Standing Army but re- 
 organised 1757, 203 ; Bill for regu- 
 lating, in Commons [1642], 631 ; 
 Car. I. refuses to pass it, ib. 
 
 Milton's Areopagitica, 794. 
 
 Ministers, attempt to establish respon- 
 sibility of, to Pari. [1342], 290; 
 established [since 17 15], 549, n. ; 
 Lord Macaulay's account of, 706 ; 
 increased security of Crown under, 
 ib. ; struggle of Geo. III. against, 
 722 ; right of dismissing [individual], 
 
870 
 
 Index. 
 
 Ministers — 
 
 asserted by the Queen in Memoran- 
 dum to Lord Palmerston, 735 [and 
 n. 2] ; practically rests with Premier 
 and Cabinet, 736. 
 
 Minorities, representation of, by Reform 
 Act, 1867, 764. 
 
 Mist, printer, commitment of, 1721, 
 
 m- 
 
 Mitchell., Sir Francis, impeached and 
 punished, 1621, 542. 
 
 Mitchell, John, declared incapable of 
 being returned to parliament, ']^'}„ n. 
 
 Modus Tenendi rarliamentum, views 
 of author of, on Lords and Commons, 
 279, ». I. 
 
 Mompesson, Sir Giles, impeached and 
 punished, 1621, 542. 
 
 Monarchy, full development of kingship 
 as a, by Hen. IL, 95. 
 
 Monasteries, dissolution of, [power of 
 Crown increased by,] 399 ; [do. of] 
 smaller, 449 ; report of Commis- 
 sioners on, 450; larger, dissolved, 
 4.52 ; was suppression justifiable ? 
 ib. 
 
 Money Bills to originate in Commons, 
 I593» 326, 502, 598 [and n. i, 
 Amendments to, by Lords, resisted], 
 638, n. [claim of Lords to amend, 
 resisted]. 
 
 Money, coiners of bad, to be punished, 
 [Ch. Hen. L], 85. 
 
 Money economy, early establishment of, 
 in England, 312. 
 
 Monopolies, in general, contrary to 
 Mag. Chart., 138; successful oppo- 
 sition of Commons to, 1601, 495-7 ; 
 21 Jac. I. c. 3, against, 555 ; re-es- 
 tablished by Car. L [1629], 580. 
 
 Montagu, Lord, tolerant speech of, re- 
 garding persecution of Roman Catho- 
 lics [1562], 466. 
 
 Montague, Dr., Appdlo Caesarem [by, 
 condemned by Commons, 1625], 
 575 ; made Bp. by Car. L [1628], 
 ib. 
 
 Montague, C. B. of Exchequer, dis- 
 missed by Jac. n., 669, n. 3. 
 
 Montesquieu on English Constitution, 
 7, ft. 2. 
 
 *Montfort, Simon de, Earl of Leicester, 
 founder of House of Commons, 247 ; 
 his first and second Parliaments, 246- 
 7 ; admits representatives of towns, 
 247 ; career of, ib. n. 4. 
 
 Montfort's, De, Parliament, 1265, not 
 ' origin of popular representation,' 
 «H 242. 
 
 More, Sir Thomas, refuses [illegally 
 amplified] oath [under ist] Succes- 
 sion Act, Hen. VHL, 447; exe- 
 cuted, 448. 
 
 Morice, Attorney of Court of Wards, 
 introduces a Bill for reform of Eccle- 
 siastical Courts, 494 ; imprisoned, 
 deprived, [and disbarred], 495. 
 
 Mortimer, Edmund, Earl of March, 
 [heir of line of Edw. HL, set aside, 
 1399L 231. 
 
 Mortmain, fraudulent gifts in, restrained 
 {,Mag. Chart. \ 151, and n. i. 
 
 Morton, Bp. [Qy. rede, Fox, Bp.], 
 celebrated * Fork,' 390. 
 
 Mortuaries, statute in restraint of, 435. 
 
 Mund, original signification of, 32 
 \n. I]. 
 
 Municipal Corporations Act, 1835, S^^- 
 
 Murder anciently restricted to secret 
 killing, 73, n. 2. 
 
 Murray, [Hon.] Alexander, case of, 
 1 75 1, before House of Commons, 
 
 773- . 
 Mutilation substituted by the Conqueror 
 
 for death, 73, 
 Mutiny Act, 569 n., 667 n. 
 
 NASEBY, battle of, 632. 
 
 National Assembly, a, or Commtitie 
 Conciliuvi regiii, England never 
 without, 236. 
 
 National Council, the, how to be sum- 
 moned, \_Mag. Chart. \ 135 ; compo- 
 sition of, /. Hen. n., 237, n. 5 ; 
 gradually became assembly of 
 ' greater barons ' ovly, 238 ; deve- 
 lopes into hereditary House of Lords, 
 ib. ; first [historical] instance of sum- 
 mons of representatives to [St. Al- 
 bans, 1213], 241 ; four instances of 
 County representation before De 
 Mont fort's Pari., 242-6; first called 
 ' Parliament,' 1246, 243. {See House 
 of Lords, Parliament.) 
 
 National Debt commenced t. Car. IL, 
 644, n. ; growth and attempts to re- 
 duce, ib. [and 645, «.]. 
 
 Nativi, gradual emancipation of, 313. 
 
 Naturalisation of Aliens, 694, w. 3. 
 
 Nee super eutn ibimus, &c., inadequately 
 translated in Statutes, 139; explained 
 by Coke and Lingard, ib. 
 
 Ne exeat regno, restrained by Mag. 
 Chart., 128-9 ; prerogative of pre- 
 venting ai.y subject quitting realm, 
 by, still retained by King, 129. 
 
Index. 
 
 871 
 
 Neile, Bp. [^Case of Commendams\ 
 536 ; abusive language in House of 
 Lords towards Commons, 530. 
 
 Nevill, Hon. Christopher, sent to 
 Tower, 16 14, 531. 
 
 Nevill, Lord, impeached, 292. 
 
 Nevill, Sir Henry, advises Jac. I. to 
 summon Par). [1614], 528. 
 
 Neville, J., dismissed from Bench by 
 Jac. H., 669, «. 3. 
 
 Newburn-on-Tyne, English defeat at, 
 1640, 601. 
 
 New Forest, formation of, 74. 
 
 Newspapers, the first, 794 ; quickly 
 multiply when freed from censorship, 
 796 ; stamp duty on, 10 Anne, 797. 
 {See Debates in Parliament — Press. ) 
 
 Nisi per legale judiciutn pariuni suortim, 
 &c., variously interpreted, 140. 
 
 Nisi Prius, Judges of \f. Edw. L], 168. 
 
 Nobility, increasing power of [A.-S.], 
 48 ; destruction of [greater part] of 
 old, in Wars of Roses, 383 ; new 
 nobility created, less independent, ib. 
 
 Noble caste [A nobility, but no], in Eng- 
 land, 277. 
 
 Nonconformists, persecution of, 475 ; 
 trials of, for publishing ' libels,' 479 ; 
 Act against Protestant [1593], 481 ; 
 antipathy of Jac. L to, 508 ; a series 
 of Acts by Pensionary Pari, against, 
 653 ; religious test in Corporation 
 Act, ib. ; — Test Act, 1673, 654; 
 Charles's Declaration of Indulgence, 
 ib. ; cancelled by request of Commons, 
 656 ; Bill for relief of Dissenters, ib. ; 
 Conventicle Act, 1664, and Five-mile 
 Act, 1665, 659 ; severity of perse- 
 cution, 660; attempts at reconcilia- 
 tion between, and the Church, ib. ; 
 growth of Religious liberty, 782 ; 
 Toleration Act, i Will. & Mary, c. 
 18, ib. ; (see 658) ; Acts against occa- 
 sional conformity and [growth of] 
 schism, 784 ; annual Indemnity Acts 
 for, A Geo. H., 785 ; penal religious 
 code relaxed /. Geo. III., ib. ; tolera- 
 tion upheld by House of Lords in 
 case of Corporation of London and 
 the, 1767, ib. ; their complete civil 
 enfranchisement [1833], 790; Dissen- 
 ters' Marriage Bill, 1836, 792; Uni- 
 versities Tests Act, 1 87 1, ib. 
 
 Non obstante [clause, in Papal Bulls, 
 1243-54, imitated by Hen. HI.], 
 329, and n. 2. 
 
 Norfolk, case of County of 1586, 351. 
 
 Norfolk, Duke of, rebellion of [1569], 
 469 (r/. 406, w.). 
 
 Norman Conquest, the, 50 ; continuity 
 of English Constitution not broken 
 by, 51 ; effects of, 52. 
 
 Normandy, separated from England, 
 no, 
 
 Normans, the, their relationship to 
 Germans, 3 ; origin and descent, 51 ; 
 absorption in the English nationality, 
 ib. ; influence of, on English before 
 Conquest, 52 ; their oppression and 
 insolence cause insurrection, 54. 
 
 North, Court of Pres. and Coun. of, 
 abolished by Long Pari., 608. 
 
 North, Lord, influence of Geo. HI. 
 [at maximum] during ministry of, 
 1770-82, 728 ; compelled to resign, 
 
 730. 
 
 Northampton, Assize of [Lord of Fee to 
 have Wardship], 118. 
 
 North Briton, the, 182, 798 ; appre- 
 hension of Wilkes on general war- 
 rant, ib. 
 
 Northumbria, frequent deposition of 
 Kings in, 35. 
 
 Nottingham, Royal standard raised at, 
 1642, 632. 
 
 NoiueWs case, 1553, member of Con- 
 vocation ineligible for Commons, 351, 
 
 Noy, Sir William [argues for freedom of 
 subject, 1627-8], 564 ; deserts Popu- 
 lar party, 579 ; made Atty.-Gen. 
 [1629], //;. ; originates idea of Ship- 
 money, 584. 
 
 OATH of fealty, A.-S., 59 [and n. 2] ; 
 to Pope taken by Clergy declared 
 by Hen. VIII. contrary to oath taken 
 to him, 434 ; to maintain Succession, 
 446-8 ; of supremacy and allegiance, 
 text of, 460, n. ; all the Bishops ex- 
 cept one refuse it, 464 ; new test, 
 appointed by Convocation, 600 ; of 
 allegiance enacted by Bill of Rights, 
 685. 
 
 O'Brien, Mr. Smith, declared ineligible 
 to sit in Pari., 772, «. 
 
 Occasional Conformity Act (10 Anne, 
 c. 2), 784. 
 
 Odo, Bp. of Bayeux, excites Rebellion 
 by his oppression, 54 ; his vast pos- 
 sessions, 61, «. I. ^ 
 
 O' Donovan Rossa declared ineligible for 
 Pari., 772, 71. 
 
 Oldcastle, Sir John, insurrection of 
 Lollards headed by, 428. 
 
 Oligarchies, England governed by [/. 
 Joh., Hen. III., Edw. II., Ric. II.], 
 245, n.\. 
 
872 
 
 Index. 
 
 Oliver, Mr. Alderman, committed to 
 
 Tower, 778. 
 Onslow, Mr. Speaker, address to Queen 
 
 Elizabeth [subjects to enjoy their 
 
 own], 504. 
 Opposition in Pari, organised by Geo. 
 
 III. [Stamp Act],727 [India Bill], 731. 
 Orange, "William, Prince of, invitation 
 
 despatched to, 674 ; lands at Torbav, 
 
 675. 
 Ordeal, facts decided by, 43 ; of three 
 
 kinds, ib. ; abolished [1215], 77 [and 
 
 n. i]. 
 Ordinances, difference between Statutes 
 
 and, 289. 
 Ordinances of Staple, 27 Edw. III. [ex- 
 porting wool capital offence], 289. 
 Ordinary, tlie term, 434, n. 2. 
 Ordination of Villeins \Coiist. Clarend.\ 
 
 100, 
 Orford, P2dw. Russell, Earl of, case of 
 
 Impeachment of, 1701, 548, n. 
 Ormond, James Butler, Duke of, case 
 
 of Impeachment of, 1715, 549, n. 
 Osbaldiston, Master of Westminster 
 
 school, punished by Star Chamber 
 
 for writing contemptuously of Laud, 
 
 581. 
 Ousterlemain [Ward entitled to], 65. 
 Outlawry, signification of [yl/<a!^. Chart i\, 
 
 138-9. . 
 Owen, Sir Roger, dismissed from 
 
 Commission of Peace, 1614, 531. 
 Oxford, Robert Harley, Earl of, case 
 
 of Impeachment of, 1715, 549, n. 
 Oxford, Henry de Vere, 1 8th Earl of, 
 
 committed to Tower, 1621-2, 554. 
 Oxford, Corporation of, venal, 1768, 
 
 755- 
 Oxford, University of, asserts Passive 
 Obedience, condemns works of Mil- 
 ton, &c., 1683, 663. 
 
 FAG US, the, 7. 
 
 Palmer, Mr., M.P., protests against 
 printing of Grand Remonstrance, 
 620 ; committed to Tower by Com- 
 mons, 621. 
 
 Palmerston, Lord, speech deprecating 
 collision with Lords, on Paper Duties 
 
 •«» Bill, 599, n. \ the Queen's Memorandum 
 to, on relations of Secretary of State 
 to Crown, 735 ; removed from 
 Foreign Secretaryship, 1 85 1, 736. 
 
 Pandulf, surrender of kingdom to, by 
 John, 113. 
 
 Paper Duties Bill, i860, Lords reject, 
 599, n. 
 
 Pardoners and Proctors punished as 
 vagabonds, 436. 
 
 Parishes, error as to number of, Pari. 
 1371, 287. 
 
 Parker, Abp., consecrated, 464, n. 2 ; 
 instructions to Bishops respecting- 
 oath of Supremacy, 467 ; his Ad- 
 vtrtisemetits, 477. 
 
 Parliament, power of, to regulate Suc- 
 cession, last asserted, 1688, 235 ; 
 origin of, 236, seq. ; four instances of 
 County representation in, before De 
 Montfort, 242-6 ; first use of name 
 Parliament for National Council, 
 243 ; the Mad, Oxford, 1258, 245 ; 
 De Montfort founder of House of 
 Commons, 247 ; representatives of 
 towns summoned to Pari. [1264], ib. ; 
 transitionary period in constitution 
 of, 1265-95, 251 ; [no proof of 
 County or Borough representation in) 
 Pari., latter years of Hen. III., ib. ; 
 Paris, t. Edw. L, 252-9, 273 {cf. 
 751} ; Pari, of Shrewsbury, 1283, 254 ; 
 perfect representation of Three Estates y 
 1295, 251, 259; clergy represented in, 
 261 ; but cease to attend in 14th 
 cent., 262 ; exclusive right of, to im- 
 pose taxation, 272 ; growth of, 273 \ 
 divided into two houses, 274(^.721) ;. 
 knights at first [vote apart] from bur- 
 gesses, 275 ; united, 1347, 276 ; regu- 
 larity of meeting /. Edw. III., 282; 
 annual meeting, enacted, ib. ; first 
 protest on rolls of, 291 ; [first] im- 
 peachment by, 292 ; the Good, ib. ; 
 a packod, 1377, 293 ; consulted by 
 Edw. III. .on peace and war, 294 ; 
 treaties, 295-6 ; practising lawyers 
 excluded from [1372], 297 ; pro- 
 ceedings of, 10 Ric. II., 302 ; im- 
 peachment of Michael de la Pole,, 
 ib. ; plot of Ric. II. against, 305 ; 
 revolutionary proceedings of Lords 
 Appellant in, ib. ; the MercilesSy 
 servility of, /. Ric. II., 306 ; usur- 
 pation of powers of, by 18 Commis- 
 sioners, 321 ; deposes Ric. II., and 
 grants Crown to Hen. IV., 322; 
 under Houses of Lancaster and 
 York, 323 ; settlement of internal 
 constitution, ib. ; first collision be- 
 tween Lords and Commons, 325 ; 
 King not to notice matters pending 
 in, 326, [337] ; the Unlearned [6 
 Hen. IV.], 332 ; privileges of, 336, 
 seq. ; [has no history] /. Edw. IV. and 
 Ric. III., 376; long suspension of 
 /. Edw. IV., 377 ; subserviency of 
 
Index. 
 
 873 
 
 Parliament — 
 
 to Hen. VIII., 391 ; seldom sum- 
 moned by Hen. VII., ib. ; number 
 of peers present in, 1539, 400, 
 n. I ; series of statutes, 1306-92, 
 to check aggressions of Pope, 419, 
 seq. \ Reformation Parliament statutes, 
 432, 433, «. I ; note on Pari, of Hen. 
 VIII. and its growth into that of Car. 
 I., 482, n. I ; conflicts with Crown, 
 t. Eliz. , 489 ; causes of general 
 submissiveness of, t. Eliz., 493 ; its 
 victory in 1601 over monopolies, ib. ; 
 privileges of, vindicated t. Eliz. 498 ; 
 Jac. I. attempts to rule without, 
 527 ; a new one elected, 1614, 
 530 ; [represents determined spirit of 
 nation], ib. and n. ; dissolved, called 
 the Addled, 531 ; [four] Members sent 
 to Tower, ib. ; James's third Pari., 
 1620, 541 ; dissolved, and Members 
 imprisoned, 553 ; fourth Pari., 1623, 
 554 ; Car. I. calls and dissolves two 
 Parliaments [1625, 1626], 557-8 
 Members imprisoned [1626], 559 
 Eliot, Selden, &c,, imprisoned, 578 
 raise question of privilege, 579 
 Charles governs eleven years without 
 [1629-40], ib. ; fourth or S/iort 
 Pari., 1640, 596 ; its moderation 
 and loyalty, ib. ; dissolved alter 
 three weeks, 599 ; Long Pari., 
 1640, 601 ; its characteristics, ib. ; 
 assists Scots, 604 ; passes .Trien- 
 nial Act, ib. ; Acts passed against 
 dissolution of, without its own con- 
 sent, 610 ; end of Constitutional 
 struggle of Charles with, 631 ; col- 
 lisions between Lords and Commons, 
 /. Car. II., 637, «. ; right of subject 
 to petition, 641 ; Pari. Test Act, 
 1678, 656 ; servile character of 
 Jac. II.'s first Pari., 665 ; Convention 
 Pari., 675 ; Ministerial responsi- 
 bility to, 711 ; critical relations of, 
 with Geo. III., 722 ; review of en- 
 actments on duration and inter- 
 mission of, 766 ; privileges of, used 
 by Executive for oppression of popu- 
 lar liberty, 771 ; note on expulsion 
 and disqualification of members of, 
 772, n. ; publication of debates of, 
 775 ; conflict with Lord Mayor, &c., 
 of London, 778 ; with Courts of Law 
 as to publication of papers affecting 
 character, 780 ; average duration of, 
 769, n. 3 ; Jews admitted to, 791. 
 {See Debates. ) 
 
 Pari, government [by means of a 
 
 Pari, government — 
 
 Ministry] not fully established till 
 Geo. I., 705. 
 
 Pari. treasurers appointed during 
 minority of Ric, II., 299. 
 
 Parry, Dr. ,M.P., case of, 1585, expul- 
 sion, 504. 
 
 Parsons, Robert, despatched by 
 Gregory XIII. to re-convert Eng- 
 land, 471. 
 
 Patents, granted by Crown under ex- 
 ception in 21 Jac. I. c. 3, 555, 
 n. I. 
 
 Pcacham, Edmund, case ^[1615], trea- 
 sonable writing, without publication, 
 533 W- 407« '^O- Coke, C. J.'s 
 opinion, 535 ; convicted and sen- 
 tenced to death, ib. 
 
 Peachey, impeached, 1 376, 280. 
 
 Peard, Mr., M.P., moves printing of 
 Grand Remonstrance, 620. 
 
 Pease, Mr., a Quaker, takes his seat 
 on making affirmation [1833], 790. 
 
 Peel, Sir Robert, short Premiership, 
 1834-5, 734 ; declines office on 
 Bedchamber Question, 1839, ib. ; 
 becomes Premier, 1841, 735. 
 
 Peerages, the, of Scotland and Ireland 
 [Note on], 745, n. I. 
 
 Peerages, first creation of [in Eng.] by 
 letters patent, 10 Ric. II., 239 ; pre- 
 cedents of life, Ric. II. — Hen. VI., 
 none since, 239-40 ; for life only at- 
 tempted to be reintroduced, 240, n. 2. 
 
 Peers, spiritual and lay, 239 ; Great 
 Council of, summoned at York by 
 Charles, 1640, 601 ; their numbers 
 at different periods from 1454, 742-6. 
 
 Peine forte et dure, origin and abolition 
 of, 177. 
 
 Pembroke, William Marshal, Plarl of. 
 Regent, minority of Hen. HI., 148 
 
 (c/: 213). 
 
 Penry, Henry, trial and execution of, 
 for seditious words, 480. 
 
 People, the, ranks of, 24 ; wretched 
 condition of, /. Steph., 91 ; enjoy 
 legal security, /. lien. II., 95 ; rising 
 of, against taxation of Ric. I., 102; 
 Mag. Chart., an act of, 107; its 
 promises and guarantees to, 108 ; se- 
 curities against oppression in Mag. 
 Chart., 137. 
 
 Per Pais, trial, 38. 
 
 Perrot, Sir James, Royal Commissioner 
 in Ireland, 1621, 553. 
 
 Persecuting statutes against Roman 
 Catholics and Protestant sectaries, 
 465. 
 
874 
 
 Index. 
 
 Personal liberty, how assured, /. Hen. 
 
 VIL, 386. 
 Personal property first taxed by Hen. 
 
 H. [1188], 161. 
 Pestilence of 1348, doubled value of 
 
 labour, 314. 
 Peter's pence, payment of, forbidden, 
 
 445-6. 
 Peiit jury introduced \t. Hen. IH.], 
 
 177. 
 
 Petit Serjeanty, tenure by, 68. 
 
 Petition of '^l Articles^ presented by 
 Commons, 8 Hen. IV., 332. 
 
 Petition of Right draw n up by Com- 
 mons, 564 ; amendment proposed by 
 Lords, rejected, ily. ; speeches of 
 Alford, Pym, Coke and Martyn, 
 564-6 ; passed by peers without 
 material alteration, 566 ; the King's 
 first answer to, ih. ; Royal assent 
 given, 567 ; text of statute, 568-71. 
 
 Petitioners and Abhorrers, 642. 
 
 Petitions of parliament. Commons en- 
 deavour to procure King's assent to, 
 before voting supplies [2 Hen. IV.], 
 325 ; assume form of Statutes under 
 name of Bills [/. Hen. VI.], 328. 
 
 Petitions to King or Parliament regu- 
 lated by 13 Car. II., 641 {cf. Lord 
 Mansfield's decision in trial of Lord 
 Geo. Gordon, 643, n. 2 ; Act cited, 
 1848, ib. ) ; right of subject to pre- 
 sent petitions, ib. [cf 683, and n. 2) ; 
 historical development of right, 641 ; 
 maintained by Bill of Rights, ib. 
 
 [Petitions of Right, cf. App. T.] 
 
 Phelips, Sir Edward, [Speaker, ist 
 Pari. Jac. I., 512, and ^.3]; dismissed 
 from Commission of Peace, 1614, 531. 
 
 Phelips, Sir Robert, committed to 
 Tower, 1621-2, 553 ; appointed 
 Sheriff [1626], 558, n. 2. 
 
 Philiphaugh, battle of, 1645, 632. 
 
 ^^^K V. Caley, last case in which vil- 
 leinage was pleaded, 316, 7i. 3, 
 
 Pigott, Sir Christopher, M.P., expelled 
 House at request of Jac. I., 517, and 
 Ed.'s n. 2. 
 
 [Pigotts = slanderers of Scots, 5 17, Ed.'s 
 n. 2.] 
 
 Pilgrimage of Grace, the, and other 
 rebellions on suppression of monas- 
 teries, 451 ; ruthlessly stamped out, 
 452, and n. i [cf App. N.]. 
 
 Pitt, William, the Great Commoner, 
 antipathy of Geo. II. to, 721 ; speech 
 to King on accepting office, ib. 
 
 Pitt, William, the younger, Premier, 
 ^7^3) 731 J gains support of nation, 
 
 Pitt the younger — 
 
 ib. ; advocates Pari, reform, 1782-5, 
 760 ; uses peer-creative power [pro- 
 fusely, to reward merit, &c.], 744. 
 
 Pius v., Bull of, 1 57 1, deposing and 
 excommunicating Elizabeth, 470, and 
 w. 2 ; injured those it was designed 
 to serve, ib., n. 2 ; statutes in reply 
 to, ib. 
 
 Place Bill of 1742, 714. 
 
 [Placemen, exclusion of from Commons, 
 by Act of Settlement, 712.] 
 
 Plantagenet. See Angevin. 
 
 Pleas of Crown, no sheriff, constable, 
 &c., to hold, [i^a^. Chart. \ 124; 
 important as marking era in our 
 Criminal judicature, ib. 
 
 Pledges, A.-S., principle of. 39. 
 
 Pluralities, statute forbidding [1529], 
 
 435- 
 
 Pole, Edmund and Arthur, convicted 
 of high treason [1563], 469. 
 
 Pole, Michael de la. Earl of Suffolk, 
 Impeachment of [1386], 302. 
 
 Pole, William de la, Duke of .Suffolk, 
 Impeachment of [1449], 335- 
 
 Police organisation of Anglo-Saxons, 
 195 ; expansion of ancient, 198 ; 
 supplemented by Watch and Ward 
 [1233], 200. 
 
 Poor Laws, Act of 1601, Amendment 
 Act, 1834, Commissioners, 1834, 
 Board, 1847, Local Government ^ 
 
 Board, 187 1, relief in ancient times, ^j/oU' 
 tithes, &c., &Cs«_££^jw^j_497-5oo. ■ * ■ 
 
 Pope, the, William the Conqueror re- V^ 
 fuses to do fealty to, for Crown of 
 England, 75 ; struggle of John with, 
 no, 417; claims and exactions of, 
 persistently resisted by kings and 
 people, 417 ; growth of power of, 
 from Conquest till Hen. III., ib. ; 
 John concedes to [veto on], nomi- 
 nation of church dignitaries, 418 ; 
 claims and exactions of, resisted by 
 Edw. I., ib. ; answer of English 
 Parliament to letter of Boniface 
 VIII., ib. ; series of statutes passed 
 to check aggressions of, 419 ; [De 
 Asportatis ReL, 35 Edw. I., to pre- 
 vent taxing by alien Superiors, 419] ; 
 Stat, of Provisors, 25 Edw. III., 
 against, 420 ; stat. forbidding cita- 
 tions to Rome by, 421 ; former pro- 
 hibitions re-enacted with special pro- 
 visions against excommunication 
 [1389], 422 ; struggle of Crown with 
 Boniface IX., ib.; Stat. o{ Praemunire 
 enacted [1392], 423 ; Boniface yields, 
 
Index. 
 
 875 
 
 Pope— 
 
 ib. ; vices and exactions of, disgust 
 even orthodox, 429 ; Annates taken 
 from, 439 ; Appeals to, from Spiritual 
 Judges in England forbidden, 441 ; 
 payment of Peter's pence to, for- 
 bidden, 445 ; Royal Proclamation 
 against, 1534, 44^; sends Jesuits 
 to re-convert England, 471 ; petition 
 of House of Commons against grow- 
 ing power of [1622], 551. 
 
 Popish plot, the [supposed], 656, n. I. 
 
 Populus or civitas, the, 7. 
 
 Porphyrogetiiii, the, [A.-S. preference 
 for], i^. 
 
 Portland, Wm. Bentinck, Earl of, 
 rfli-^ of impeachment of, 1701, 548, n. 
 
 Post-naii, the, 7 Jac. I., 518, ;/, 2 {cf. 
 536), 696, n. 
 
 Powell, J., Judgment in case of the 
 Seven Bishops, 672. 
 
 Poynings'Law, 1495 [Eng. Pub. Statutes 
 to have force of law in Ireland], 402. 
 
 Praecipe, writ of, Mag. Chart, on issue, 
 126. 
 
 Praemttnientes clause [inferiorl, clergy 
 represented in Pari, under [/. Edw. 
 I.], 257. 
 
 Praemunire, origin of offence known 
 as, 422, n. I ; statute of, 16 Kic, II. 
 c. 5, 423 ; whole clergy in a, 436 ; 
 also laity, 437 ; general pardon by 
 Acts of Parliament, 438. 
 
 Preachers, Bill passed by Lords against 
 [Heretical], 426; petitioned again^t 
 by Wyclifte, and [not assented to] by 
 Commons, ib. ; nevertheless [re- 
 mained] on Statute Book [till Stat. 
 Law Rev. Act, 1863], 426, 71. 2. 
 
 Premier, the, position of, 709. 
 
 Prerogative of Crown, exclusion of 
 members from House not a [Strick- 
 land's case, 1571], 491. 
 
 Prerogatives of Crown [the Legal], 717. 
 
 Presbyterian system, attempt to intro- 
 duce, into England [1591J, 480, 
 
 Press, liberty of, restramts of censor- 
 ship, 792-3 ; [under Commonwealth], 
 794 ; Milton's Areopagitica, ib. ; 
 Licensing Act, 1662, ib. ; any- 
 thing published concerning Govern- 
 ment declared criminal by Judges 
 [1679], 795 ; renewal of Licensing 
 Act, 1685, 796 ; its final expiration 
 [1695], 796 ; still subject to restraint, 
 ib. ; Stamp Act [10 Anne], 797 ; and 
 law of libel used to suppress, 798 ; 
 complete freedom since 1832, 801. 
 [C/. App. E.] 
 
 Pride, Colonel, purges Commons [1648], 
 
 635- 
 
 Priests. See Clergy. 
 
 Pri/uer seiiin, relief payable by tenant- 
 in- chief, 64. 
 
 Primeval Teutonic institutions, 6. 
 
 Printing and bookselling, restrictions 
 on, by Eliz.,, 487. 
 
 Printing, penalties attaching to dis- 
 qualified persons, under Stuarts, 793. 
 
 Principes, justice administered by, 7. 
 
 Privilege of Parliament, 336 ; cases of 
 Ferrei's and Smalley, 500 ; olNozvell 
 and county of Norfolk, ib. ; Storie's 
 case, ib. ; Copley s case, 501 ; HalPs 
 case, ib. ; Dr. Parry's case, 502 ; 
 Bland's case, ib. ; Long's case, ib. ; 
 Jac. I. on, 552 ; [Polle's case, 1629, 
 57^5 575 5 ] question of, raised [in 
 case] of Eliot, Selden, &c., /. Car. I., 
 579 j ri^ht of Commons to commit 
 for breach of, 773. 
 
 Privy Council, personal jurisdiction of 
 King continued in his, 182 ; series of 
 statutes passed in restraint of, 186 ; 
 origin of legislative character of, 192 ; 
 judicial powers of, ib. ; attempted 
 revival of ancient authority by Act of 
 Settlement, 703. 
 
 ' Privy Seals' (/. Hen. VIII., 393, and 
 n. 2) ; Car. I. attempts to raise 
 money upon, 557 ; and n. 2, 
 
 Probate fees, stat. in restraint of, 434. 
 
 Proclamations of Hen. VIII. given 
 force of law, [31 Hen. VIII. c. 8], 398 ; 
 stat. repealed by Edw. VI., 406 ; 
 still continued to be issued, 408 ; t. 
 Eliz. 486-7, and 487, n. i ; com- 
 plaints of abuse of Royal, 523 ; 
 answer of Judges as to legality of, 
 526 ; numerous and oppiessive, t. 
 Car. L, 580. 
 
 Proctors and Pardoners punished aa 
 vagabonds, 436. 
 
 Provisions of Oxford, 1258, 245. 
 
 Provisors, Stat, of, 25 Edw. HI., 297, 
 330, 420. 
 
 Proxies in House of Lords discontinued, 
 1868, 750. 
 
 Prynne, Wm., severe sentence on, for 
 publishing f/istriomastix [1633], 583 ; 
 do. by Star Chamber for publishmg 
 other works [1637], ib. ; popular 
 sympathy with, ib. ; liberated by 
 Long Pari. , 604. 
 
 Public accounts. Pari. Commission ap- 
 pointed to enquire into [1666], 646. 
 
 Punishments under early English Law, 
 44; severity of, t. Hen, I., 88. 
 
876 
 
 Index, 
 
 Puritans, persecution of, 475 ; loyalty, 
 ib. ; conventicles, 477 ; attempt to 
 suppress them [1567], ib. ; attack 
 Episcopacy, ib. ; libellers punished 
 with death L^S^i], 479 ; political 
 results of persecution of, 481 ; ascend- 
 ancy of, in Commons, /. Eliz. , 489; 
 become organised and powerful, 507 
 [and «.] ; aims and wishes, ib. ; 
 'Millenary Petition ' to Jac. I., 509, 
 n. I. 
 
 Purveyance^ provision as to, made by 
 Mag. Chart., 143 ; abuses of, 144, 
 88 ; prerogative of, resigned by 
 Car. II., 144, [640]; restricted by 
 Long Pari, 608. 
 
 Pym, John, elected for Calne [1614], 
 530, «,; imprisoned byjac. I. [1622-3], 
 553 j speech on Petition of Right, 
 565 ; his speech in Long Pari, on 
 state of kingdom, 602 ; denounces 
 Strafford, ib. ; his firm opposition to 
 Car. L, 613 ; motion of, on the new 
 Army plot, 614 ; Car. I. offers hmi 
 Chancellorship of Exchequer, 621 ; 
 his speecli in answer to articles im- 
 peaching the Five Members, 625-6. 
 
 QUAKERS allowed to substitute afiir- 
 mation for oath [1833], 3 & 4 
 Will. IV., 790 [ ; do. in Pari., ib.\ 
 
 Quarantine, widow's, 119. 
 
 Queen consort, position of, 32 ; privi- 
 leges and possessions, ib. 
 
 Queen regnant, doubts as to Constitu- 
 tional powers of, 413 ; settled by 
 [i Mary, sess. 3, c. l], ib. 
 
 Quia Emptores, sub-infeudation for- 
 bidden by, 67 ; Stat, of, 257. 
 
 RALEIGH, Sir Walter, public opinion 
 on execution of, 540. 
 
 Rapes ^ Sussex divided into, 18, n. i. 
 
 Reed, Alderman, oppressive treatment 
 of, /. Hen. VIII., 395. 
 
 Reform, scheme of, drawn up, t. Steph,, 
 92 ; fully carried out by Hen. II,, 
 95 ; commission of, appointed /. 
 Ric. II., 301 ; Act of, 1867, 366, 
 n. 3 ; advocated by Lord Chatham in 
 1766, 759 ; Wilkes' scheme of, ib. ; 
 and \\ m. Pitt's, 760 ; question of, 
 revived after Peace of 181 5, 761 ; 
 passing of Act of 1832, 366, 761 ; 
 its principal provisions, 762 ; Act 
 of 1867, 366, 763 ; tabular state- 
 ment of number of electors and 
 increase since that Act, 764, «. 
 
 Reform Bills of 1831 and 1832, 'opposi- 
 tion to, in Lords, 748 ; overcome 
 by threatened creation of new peers, 
 749. 
 
 Reformation^ the, 416-458 ; /. Hen. 
 VIII., Political [and Legal] rather 
 than Religious,4i6; doctrinal changes 
 under Edw, VI. and Elizabeth [un- 
 intentional consequence], ib. ; causes 
 of, long in operation, ib. ; influence 
 of Luther's writings [on Lollardism 
 and], 431 ; some reform of Eccle- 
 siastical system inevitable, ib. ; pre- 
 cipitated by Pope's action in Hen, 
 VIll.'s divorce suit, ib. ; doctrines 
 of Anglican Church declared by 
 Henry, 455 ; reformation in religion 
 under Edw. VL, 456 ; considerable 
 opposition to, 457 ; persecution, ib. ; 
 re-establishment of Papal religion by 
 Mary, 1553-58, ib. ; Reformation 
 promoted by Marian persecution, 458. 
 
 Reformation Pari. [1529-36], 432. 
 
 Regal Office, theory of inherent para- 
 mount power in. repugnant to ancient 
 Constitution, 506. 
 
 Regencies, history of, 366, et se^. ; Acts 
 passed [Hen. VIII. -Vict.], 373- 
 376- 
 
 Registration of Births, Marriages, and 
 Deaths, established, 792. 
 
 Relief and pritner seisin, 64, 
 
 Reliefs, mitigation of, Ch. Hen. I., 84; 
 sum defined by J/<:z^. Chart., 117. 
 
 Religious houses, 35 Edw. I. to pre- 
 vent [Foreign] alien superiors from 
 taxing [English], 418. 
 
 Religious liberty not recognised by 
 Constitution [/. Eliz.], 482, and n. 
 2 [do. /. Car. I., 575]. 
 
 Remo7tstrance, Gi-and, 614. See Grand 
 Remonstrance. 
 
 Representation, defects in system, 753, 
 et seq. 
 
 Requests, Court of, supposed origin, 
 [13 Ric. II.], 192, n. 5. 
 
 Revenue, sources of [/. Hen. I.], 160 ; 
 expedients of Car, I. to raise a, 561, 
 579 ; of the Crown, 737, 
 
 Revenue officers, disfranchisement of, 
 [1782], 756. 
 
 Revolution of 1688, 231 ; its salutary 
 consequences, 680 ; Macaulay on, ib. 
 
 Revolutionary period, 1642-60, 632-8 ; 
 results of, 636-8. 
 
 Rex Anglia, John first so called on 
 Great Seal, 205, n. 3. 
 
 Rich, Sir Nathaniel, Royal Commis- 
 sioner in Ireland, 1621, 553. 
 
Index, 
 
 877 
 
 Richard I., 1189-99, absentee king, 
 loi ; excessive taxation of country by, 
 102 ; popular rising in consequence, 
 ib. ; Constitutional opposition of 
 clergy, 103 ; administration of his 
 four Justiciars, 103-4 ; his Charters to 
 boroughs, 105 ; summary of reign, 
 106 ; right of succession to throne, 
 210-11 ; death, 211. 
 
 Richard 11. , 137-799; Constitutional 
 importance of reign, 297 ; despotism 
 and deposition, 298 ; the three 
 periods of his reign, ib. ; partiality 
 for favourites, 302; arrogant beha- 
 viour to Pari., 303 ; questions pro- 
 pounded by, to Judges at Not- 
 tingham, 304 {see 320) ; his plot 
 against Pari., 305 ; apparent har- 
 mony of, with Pari., 317; despotic 
 measures of, 320 ; revenue granted 
 to for Ufe, 321 ; appoints Commis- 
 sioners, who usurp power of Pari., 
 ib. ; his short triumph, ib. ; deposi- 
 tion, 218, 322. 
 
 Richard III., 1483-85 ; his accession 
 in accordance with wishes of nation, 
 223 ; Crown entailed on his issue, 224. 
 
 Richardson, C.J., consulted by Car. I. 
 on Petition of Right, 566. 
 
 Rickhill, J., petition of House against, 
 [perhaps an informal Impeachment], 
 
 334. 
 
 Ridings in Yorkshire, Lincolnshire, 
 and Co. Cork, 18, n. i. 
 
 Riot Act (i Geo. I.), 410, n. 
 
 Roach, Alderman, oppressive treat- 
 ment of, t. Hen. VIII., 395. 
 
 Robert the Crusader, Duke, 206-7. 
 
 Rockingham, Marquis of. Civil List 
 Act, 1782, 714; Premier, 1765, 726; 
 1782, 730. 
 
 Roger, Bp. of Salisbury, Chancellor, 
 [1101-3], afterwards Justiciar, I107, 
 87 ; arrest of by Stephen, 91, and 
 n. 2. 
 
 Rollers casey Privilege, t. Car. I., 572, 
 
 575- ^ , ,. 
 Roman Catholics, persecutmg statutes 
 
 of Elizabeth against, 465 ; suspected 
 of disloyalty, 468 ; patriotism dis- 
 played by, during crisis of the Ar- 
 mada, 474 ; further persecution of, 
 [1585-93L 474-S ; number of, who 
 suffered death during Elizabeth's 
 reign, 475, n. i ; indulgence to, by 
 Jac. I., 509 ; excepted Irom Tolera- 
 tion Act, I Will. & Mary, 783 ; disa- 
 bilities taken from, by Emancipation 
 Act, 1829, 788 ; complete religious 
 
 Roman Catholics — 
 
 liberty given to, by [7 & 8 Vict. c. 
 102, 9 & 10 Vict. c. 59], 789-90. 
 
 Roman Catholic peers excluded from 
 Pari, by Pari. Test Act, 1678, 656, 
 657, ;/. I. 
 
 Romanism, definitive rejection of, as- 
 sured by Great Rebellion, 638. 
 
 Roman l^aw ; disappearance of, from 
 Eng. Judicial system, 3 ; indirect 
 influence of, after conversion of 
 English, ib. ; re-introduced from 
 Continent in 12th cent., ib. ; taught 
 at Oxford by Vacarius [1149], 4; 
 many of its principles absorbed in 
 Eng. Judicial system, ib ; Judges pro- 
 hibit citation of", in Common Law 
 courts [/. Ric. II.], 190, n. 1. 
 
 Root and Branch Bi'l, [Sir Edward 
 Bering's, 1641], 618, ;/. 
 
 Rotten Boroughs, great creation of, t. 
 Edw. VI., Mary and Eliz., 414. 
 
 Royal authority, checks on, \t. Hen. 
 VIL], 385. 
 
 Royal Succession Acts, Hen. VIII., 
 enactments of, 225-7, 446 ; oath 
 imposed by, ib. [and 449]. 
 
 Royal Supremacy, Canons of Will. 
 Conq. on, ^6. 
 
 Royalty, development of institution 
 of, 9. 
 
 Russell, Earl, on the despotic power 
 o( Car. II., 662 ; his remarks on a 
 Standing Army, 668, n. 
 
 SACHEVERELL, Dr., case of im- 
 peachment of, 1 7 10, 548, n. {cf. 673, 
 704) [and Ed.'s n. 4]. 
 
 Sacrament not to be administered ex- 
 cept by ordained priests, [13 & 14 
 Car. II., sec. 14], 658 {cf. 783). 
 
 Sailors, impressment of [illegal by 
 Long Pari.], 609, n. 
 
 St. Alban's, Council of, first national 
 representative assembly, 114, 241. 
 
 St. Asaph's, Dean of, case of, 1779, 
 800. 
 
 St. DaviiTs, Bp. of, case of, freedom of 
 speech, 341. 
 
 St. Edmund's Bury, confederacy of 
 barons at, 115. 
 
 St. John, Oliver, [cites Mag. Chart., 
 &c.] against Benevolence asked for 
 by Jac. I., 533 ; fined and impri- 
 soned, ib. ; his argument in Hamp- 
 den's case, 590 ; made Sol. -Gen. by 
 Car. L, 612. 
 
 Saladin tithe, the 1188], 102, 161. 
 
878 
 
 Index, 
 
 Salisbury, Gemot of, 1086, 59. 
 
 Salisbury, Herbert, Bp. of, 103. 
 
 Sancroft's party, 1688 [for Regency], 
 676. 
 
 Sandys, Sir Edwin, [M.P., not to leave 
 London, 1 6 14], 531 ; prosecution of, 
 162 1-2, 550. 
 
 Sapientes^ = members of Witan, 34. 
 
 Savile, Sir John, dismissed from Com- 
 mission of Peace, 1614, 531. 
 
 Saxons, not mentioned by Tacitus, 5 ; 
 mentioned by Ptolemy, id. ; form 
 confederacy of North German tribes, 
 id. ; retain independence of Rome, id. 
 
 Schism Act, [1713], 12 Anne, c. 7, 
 784. 
 
 Schoolmasters required by Act of 
 Uniformity, 1662, [sec. 9], to con- 
 form to Church of England, 658. 
 
 Scotch Army, money grant by Long 
 Pari, to, 604. 
 
 Scotland acknowledges superiority of 
 Hen. IL, 95 ; influence of, on eccle- 
 siastical affairs of England, 480 ; 
 interference of Car. L with Church 
 of, 595 ; visit of Charles to, 612 ; 
 alarm caused by the ' Incident ' in, 
 614 ; secret treaty of Charles with, 
 [1648], 633 ; Jac. H. deposed by 
 Scottish Estates, 679, n. ; represen- 
 tation of Peerage of in Parliament, 
 &c., [742], 743 [and n. i], and 745, 
 n. ; abuse of franchise in, 756 ; Re- 
 form Act for, 1832, 762 ; 1 868, 763, 
 
 ''• 5- 
 
 Scroggs, C.J., declares it criminal to 
 publish anything concerning Govern- 
 ment, [1679J, 795, and n. 3. 
 
 Saitage, commutation of personal mili- 
 tary service for payment, [1159], 97, 
 196 ; not to be imposed except by 
 common counsel of nation, {Mag. 
 Chart.\ i-jyd, {see 151); [new land 
 lax, based on scutum, or Knight's 
 fee, 161]. 
 
 Sea-kings, leaders of Danish invasion, 
 12. 
 
 Selden imprisoned, [1622], 553 ; com- 
 plaint by, to House, of breach of 
 Petition of Right, 572 ; his Mare 
 Claustuii, an answer to Grotius' Mare 
 Liberum, 586, ;/. 2. 
 
 Select Vestry Act, 18 19, 499, n. 
 
 Septennial Act, 1716, 767; attempts 
 to repeal, 769. 
 
 Senlac, [or Hastings,] battle of, 50. 
 
 Seven Bishops, names of, 672, n. 2 ; 
 trial of the, 1688, 182, 673; Macau- 
 lay on, 673-4. 
 
 Seymour, Lady Jane, 225. 
 Shelburne Ministry, [1782], 730, 
 
 Sheriff, the, his office and duties, 19 ; 
 government of shire executed by, 
 61 ; from time of Philip and Mary 
 the office of, purely civil, 202, n. i ; 
 early abuse of power of returning 
 Members to Pari., 348; attempt to 
 restrain do. by statute, [Westm. I., 
 5 Ric. n., and 11 Hen. IV., and 
 23 Hen. VL,] 349-50. 
 
 Sherlock's party, 1688, [wished condi- 
 tional Restoration of James,] 675. 
 
 Ship-money, case of, decision of the 
 Court of Exchequer, 584 ; Sir Wil- 
 liam Noy, Atty.-Gen., originator of 
 [Writ of], ib. ; a violation oi Petition 
 of Right, 585 ; the three writs of, 
 585-7 ; extended [by Lord Keeper 
 Einch] from seaports to whole king- 
 dom, 586 ; refusal of Hampden to 
 pay, [1637], 588 ; proceedings against 
 him in Exchequer, ib. ; extra-judicial 
 opinion of judges, 589 ; arguments 
 on case, 590 ; Judgment for Crown, 
 591 ; effect of do. on people, 593-7 ; 
 Charles offers to give it up for twelve 
 subsidies, 599 ; offer rejected by 
 Commons, ib. ; Lord Mayor and 
 Sheriffs of London prosecuted for not 
 levying, 600; abolished by Long 
 Pari., 606. 
 
 Shire, aggregation of hundreds, 17; 
 [old as 690], as territorial division, 
 19 ; government of, &c., ib. ; theory 
 as to original independence of each, 
 41, n. 
 
 Shiremoot or Scir-gemot, constitution 
 of, 41 {see 168), 168, n. 3. 
 
 Shirley, Sir Thomas, case of, 1 603, 
 freedom from arrest, 346. 
 
 Shirley v. /a^'.^— controversy between 
 Lords and Commons as to jurisdic- 
 tion of former, in Equity appeals, 
 [1675], 637, ;/. 
 
 Shoi't Pari., 1640, 596. 
 
 Shrewsbury, Pari, of, for Acton Bur- 
 nell,] 1283, 254; 1398, 320. 
 
 Sidney, Algernon, case of, [1683], 
 407, n. 
 
 SiGEBERT, King of Wessex, deposed by 
 Witan [755], 35 {see 217). 
 
 Simnel, Lambert, 402, «. 2. 
 
 Sion's Plea against Prelacy, [Alex. 
 Leighton's], 582, n. 
 
 Sithesocjia, private jurisdictions. 40. 
 
 Six Acts, the, 18 19, [against Seditious 
 meetings, Blasphemous Libels, &c.], 
 797, «. 
 
Index. 
 
 879! 
 
 Skinner v. East India Co. , controversy 
 between Lords and Commons, 
 [1668-9,] 637, «• 
 
 Slavery, Colonial, legalised by stats. 
 Will. III. and Geo. II., 316, n. ; 
 abolished, 1834, 317, n. 
 
 Slaves, 25,cxx) in Domesday, 24 ; here- 
 ditary and penal, id. 
 
 Slave trade, petition by Quakers, 1782, 
 to abolish, 643. 
 
 Smalley's case, 1 575, 345. 
 
 Smith, Sir Thomas, Commonwealth of 
 England, 505. 
 
 Socage, philology of, 68, n. 5. 
 
 Soldiers, impressment of, 609, n. 
 
 Somers, John, Lord, case of Impeach- 
 ment of, 1 70 1, 548, n. 
 
 Somerset, County of, resistance of, to 
 benevolence /. Jac. I., 534, and n. 
 
 Sommersett, case of negro, 317, n. 
 
 Sovereign, diminution of personal in- 
 fluence of, since Geo. III., 733 ; 
 private property of, 741. 
 
 Spain, policy of Jac. I. towards, 540 ; 
 scheme for marriage of son with 
 Infanta, ib. ; odious to English, ib. ; 
 petition against by Commons, 551 ; 
 abandoned, 554. 
 
 Speech, liberty of, speech of Peter 
 Went worth, 491 ; Elizabeth's defini- 
 tion of, 494. {See Freedom of 
 Speech.) 
 
 Stafford, Sir Thomas, rebellion of, 
 411, n. I. 
 
 Stamp Act, organised opposition in par- 
 liament, 1766, by the ' King's friends' 
 to repeal of, 727. 
 
 Standish, Dr., and Convocation, 430 
 (r/ App. D.). 
 
 Stannaries Court of Cornwall and 
 Devon, 338, n. 2 ; abuses remedied 
 by 16 Car. I. c. 15, 608, n. I. 
 
 Star Chamber, the, had power of fining 
 and imprisoning juries, 181 ; origin, 
 193 ; decline of jurisdiction, ib. ; re- 
 newed in more legal form by Hen. 
 VII., ib. ; old jurisdiction revived by 
 Hen. VIII., 194; under Stuarts 
 practically merged in Privy Council, 
 ib. ; review of jurisdiction and pro- 
 cedure, ib. ; abolished, 1641, 195 ; 
 criminal jurisdiction, /. Hen. VII., 
 388 ; punishments inflicted by, /. 
 Car. I., 572, 581-4; victims released 
 by Long Pari. , 604 ; abolished by 
 Long Pari, 607. 
 
 State, ancient supremacy of, over 
 Church maintained by William I., 
 76. 
 
 Stat, for security of subject under King. 
 de facto, 387 ; held not to cover pro- 
 ceedings of a non-regal government, 
 387-8. 
 
 Stat, of Acton Burnell, or De Alerca- 
 toribus, 255. 
 
 Stat, of Praemunire, 16 Ric. II. c. 6, 
 423, 436. 
 
 Stat. o\ Provisors, 25 Edw. III., 1350, 
 297, 330> 420. 
 
 Stat, of the Six Articles, 1 539, 455. 
 
 Stat. Westminster I. [1275], preambles 
 of, 253. 
 
 Stat. Westminster II. {De Bonis], 384, 
 n. 2. 
 
 Stat. Westminster III. [Quia Emptores'], 
 
 257. 
 Stat, of Winchester [1285], 201. 
 Statutes, frauds in drawing up, from 
 
 petitions granted by King, 327. 
 Statutes [in restraint] of Pope [1306-92], 
 
 4i9-[23]. 
 
 Statutum WallicE, 12 Edw, i, 401. 
 
 Steele, Sir Richard, on Triennial Par- 
 liaments, 768 ; expelled from Com- 
 mons, 1714, 771. 
 
 Stephen, i i 35-54, his two Charters, 89 ; 
 confirms laws of Hen. I., ib. ; con- 
 cessions to clergy, 90, and nation, 
 ib. ; tumult and anarchy of his reign, 
 ib. ; creation of new earldoms, 91 ; 
 arrest of [Bps. of Salisbury, Ely, and 
 Lincoln], ib. ; death of his eldest son, 
 92 ; agreement with Henry, son of 
 Matilda, as to succession, ib. ; Peace 
 of Wallingford and scheme of reform, 
 ib. ; his election to Crown, 208 ; his 
 title to it, ib. n. 3 ; his death, 92, 209. 
 
 Stockdale v. Hansard — conflict between 
 Commons and Courts of Law, 1839, 
 781, [800]. 
 
 Stone, John, M. P., case of, imprisoned 
 [1548], by House, for disrespectful 
 language, &c., 500. 
 
 Strafford, Thomas Wentworth, Earl of, 
 case of impeachment of, 543, n. ; 
 execution of, 544, n. ; and see Went- 
 worth, Sir Thomas. 
 
 Stratford, Abp., Edw. III.'s cjuarrel 
 M'ith, 290, 291, «. I. 
 
 Strathclyde, kingdom of, retained by 
 the Britons, 2. 
 
 Strickland, Mr., M.P., question of 
 privilege, 491. 
 
 Strode, Richard, M.P., prosecuted in 
 Stannary Court, 338 ; \casi of,] pro- 
 ceedings declared void by 4 Hen. 
 VIII. c. 8, 339; and thestat. declared 
 to be a general law, ib. 
 
88o 
 
 Index. 
 
 Strode, William, M.P., impeached of 
 
 high treason, 623. 
 Stuart Period, 507-688. 
 Stubbe, Thomas, 1579, 476, n. i. 
 Sub-infeudation, 55, 67 ; put a stop to 
 
 by Quia Eviptores, 257. 
 Subf?iission of Clergy, Act for, 1533-4. 
 
 443- 
 
 Subpoena, writ of, introduced, 189 ; its 
 unpopularity, ib. 
 
 Subsidies voted in different proportions, 
 275 [, 1296-1345, ib. n. 2]. 
 
 Succession to Croiun, 204, seq. ; right 
 of Parliament to re-settle, paramount, 
 216 ; Hen. VIII. empowered by 
 Pari, to limit, 226 ; treason to deny 
 power of Pari, to limit, 13 Eliz. c. i, 
 228 ; conflict of Elizabeth and Pari, 
 as to, 489 ; question again brought 
 forward by Peter Wentworth, 494. 
 
 Sudbury, seat for, advertised for sale to 
 highest bidder, 756. 
 
 Sully, Due de, his opinion of Jas. I., 
 508. 
 
 Supplies appropriated to specific pur- 
 poses by Commons, first instance 
 [1353], 286 ; t. Car. II., 643 ; be- 
 comes constant practice and undis- 
 puted principle, 645 {cf. 300, 324). 
 
 Supremacy, Act of, [1534, 448], 1559, 
 460. 
 
 Suspending power of Crown, 329. 
 
 Synods of clergy, date from early 
 period, 30. 
 
 TALIvIAGE, right of, surrendered by 
 Edw. I., 161, 272. 
 
 Taltarum's case, 384, n. 2. 
 
 Tanfield, C.B., on legality of Procla- 
 mations, 526. 
 
 Tarsus, Theodore of, Abp. of Canter- 
 bury, 10. 
 
 Taswell, James, his ' Ten Necessary 
 Queeries touching the Personall Trea- 
 tie' (1648), 633-4, n. 
 
 Taxation, the Witan only had power to 
 impose, 37-8 ; heavy, imposed by 
 Hen. I., 88 ; excessive, i. Ric. I., 
 102 ; Royal claim to arbitrary, sur- 
 rendered by Magna Charta, 134-5; 
 of people generally by Hen. 11., 161 ; 
 •of income and personal property 
 first introduced, ib. ; of a fifteenth^ 
 162, n. I ; pressure of, excites oppo- 
 sition, ib. ; right to consent of people 
 to, re-asserted, ib. ; gradual growth 
 of indirect, 164 ; point of transition 
 from local to central, 253 ; Commons 
 
 Taxation — 
 
 vindicate their right to share in any 
 legislation regarding, 258 ; principle 
 adopted that the taxed must consent to, 
 260 ; exclubive right of Pari, to im- 
 pose, 272 ; without consent illegal, 
 284 ; illegal, rare under Lancastrian 
 kings, 324 ; consent of Pari, neces- 
 sary for, /. Hen. VII., 385 ; re- 
 sisted by mass of people, /. Hen. 
 VII., 389 ; right of import and ex- 
 port declared by Judges to be vested 
 in Crown, 520 ; the Book of Rates, 
 1608, 521 ; remonstrance against, /A ; 
 without consent of Pari., denounced 
 by Commons, 1614, 530 ; two Acts 
 of Long Pari, close series of statutes 
 against arbitrary, 607. 
 
 Temple, Earl, dismissed from Lord 
 Lieutenancy and Privy Council by 
 Geo. HI , 726. 
 
 Temple, Sir William, remodels Privy 
 Council, 700. 
 
 Tenant, investiture on grant of fief to, 
 63 ; homage of, to lord, ib. ; oath of 
 fealty, ib. ; obligations of, to lord, 64. 
 
 Tenentes in capite, 62. 
 
 Tenures, feudal, glance at outline of 
 system of, 62 ; though abolished by 
 Car. II., spirit of system still lives, 
 ib. ; by Knight service, 63 ; in 
 frankalmoign, tb. ; by Grand Ser- 
 jeanty, 67 ; Petit Serjeanty, 68 ; in 
 free Socage, ib. ; burgage, 69 ; gavel- 
 kind, ib. ; villeinage, 70; abolition 
 of old feudal, under Car, II., 639. 
 
 Terra Regis, Folk land developes into, 
 
 Territorial divisions, ancient English, 
 17- 
 
 Test Act, 1673, 654 [Parly, do., 1678, 
 656]; design of Jac. II. to over- 
 throw, opposed by Pari., 666; rep. 
 1828, 788. 
 
 Teutonic conquest of Britain, i. 
 
 Theobald, Abp. of Canterbury, 4. «. i. 
 
 Theodore of Tarsus, Abp. of Canter- 
 bury, reduces Ecclesiastical organisa- 
 tions into one National Church, 10. 
 
 Theodosian Code, extracts from, in 
 Leges Henrici Primi, 4. 
 
 Theozvas, 24; ivite-theoivas, ib. 
 
 Thirty-nine Articles of Religion. 462 ; 
 made binding on clergy, ib. ; Car. I. 
 issues new edition, 574 ; petition for 
 relief from subscription, rejected by 
 Commons 1772, 642. 
 
 Thirty one Articles, Petition of, 1406, 
 332-34- 
 
Index, 
 
 88i 
 
 Thornton^ s case, trial by battle, 133. 
 Thorpe's case, 31 Hen. VI., freedom 
 
 from arrest, 342. 
 Throckmortoji, Sir Nicholas, case of, 
 
 181. 
 Thegn, the, 25. 
 Thegnhood, effects of the growth of, 26. 
 
 Tithes, origin of, 497, nr, legal obliga- 
 tion of, from 8th century, ib. ; law of 
 Ethelredll. respecting, z(^. [Ed.'s «. 
 on, ib. Cf. App. B.] 
 
 Tithing, exact nature of, doubtful, 39 ; 
 responsibility of, for member, ib. 
 
 Titles to Estates, Commissioners ap- 
 pointed by Car. I. to inquire into 
 and compound for defects in, 580. 
 
 Toleration Act, 1688-9, 7^2. 
 
 Tonnage and Poundage enforced by 
 Car. I., on Royal authority alone, 561, 
 571, 575, 580; merchants imprisoned 
 for refusing, 572; right to levy re- 
 nounced by King, 573 ; granted for 
 two months only, by Long Pari., 606. 
 
 Torture, abhorrent to Common Law, 
 472, n. 2 ; last instance in England, 
 1640, ib. 
 
 Tory and Whig parties, origin, 661 ; 
 difference between, ib. {cf. [611], 642, 
 702. 
 
 Towns, representatives of, summoned 
 by De Montfort, 247 ; progress, 248 ; 
 charters, 249 ; first symptom of repre- 
 sentation of, 250. 
 
 Township, the. Tun or Vicus, 17. 
 
 Treason, Law of, 405-10, n. ; lands of 
 person convicted of, liable to for- 
 feiture for ever, 67 ; forfeiture 
 abolished [33 & 34 Vict. c. 23, 1870], 
 400, n. 
 
 Treason- Felony Act (li & 12 Vict. c. 
 12), 408, «., 772, n. 
 
 Treasons, Stat, of, 25 Edw. III., 288, 
 n. i; new, /. Hen. VIII. , 396; 
 accused not heard in defence, 398 ; 
 new laws of Hen. VIII. abolished by 
 Edw. VI., 404 ; re-enacted 1552, 
 ib. y two witnesses required, ib. 
 
 Treaty of Alfred and Guthrum defines 
 limits of Danish occupation, 12. 
 
 Trevor, J., imprisoned for Judgment 
 [for] Crown, Ship-money case, 607, 71. 
 
 Trial (new), first recorded instance, 
 1665, 180. 
 
 Trials, political, unjustly conducted 
 under Tudors and Stuarts, 483. 
 
 Tribunals, irregular, abolished by Long 
 Pari., 607. 
 
 Triennial Act of Long Pari. , 604, 766 ; 
 Act of 1694, 767. 
 
 C.H. 
 
 Trinoda neccssitas, 16 ; prior to Con- 
 quest, all lands subject to, 62. 
 
 Troyes, Treaty of, 334. 
 
 Trussell, Sir William, renounces Edw. 
 II. in name of Parliament, 217. 
 
 Tudor period, general characteristics of, 
 380, et seq. 
 
 [Tumultuous Petitioning, Act against, 
 13 Car. II. St. I, c. 5, 1661, 641 ; 
 per Ld. Mansfield, 1780, held not 
 rep,, cited, 1848, and relied upon 
 very recently, 643, n. 2, and Ed.'s n. 
 ib.-] 
 
 Tu7t, original meaning, 17, n. 2. 
 
 T2in-gemot, an assembly of freemen, 17. 
 
 Tun-gerefa, the, 17. 
 
 Tivyn' s case, 15 Car. II., 407, «., 795, 
 «. 2. 
 
 UDAL, a Puritan minister, alleged 
 
 libel by, on Bishops [1591], 480. 
 'Undertakers,' the, 528. 
 Uniformity, Acts of, 1559, 461 ; 1662, 
 
 657.. 
 
 Unitarians excepted from Toleration 
 Act, I Will. & Mary, 783. 
 
 Universities Tests Act, 1871, 792. 
 
 Unlawful assemblies, riots, &c., mea- 
 sures to suppress, t. Hen. VII., 
 388 ; 3 & 4 Edw. VI. c. 15, against, 
 412. 
 
 Unlearned Pari., 6 Hen. IV., 332, 
 
 Utrecht, Peace of, 17 13, 549, «. 
 
 VACARIUS, teaches Roman law at 
 Oxford, 4; his 'Summa,' ib. \ si- 
 lenced by Stephen, ib. 
 
 Valentine, Benjamin, M. P., case of, 5 
 Car. I., 339, 578. 
 
 \_Valettim Pari., 1322, 347, n. i.] 
 
 Vane, Sir Henry, imprudent speech in 
 Commons, 599, 
 
 Vaughan, C. J., celebrated decision in 
 Bus heirs case, 181. 
 
 Venue of Jurors, rule as to, 179. 
 
 Vernon, J., Ship-money ividgmtnt, 593. 
 
 Versailles, Peace of, 1783, 730. 
 
 Veto, Royal, not exercised since 1707, 
 729, and n. 5. {Cf. App. J.] 
 
 Victoria, Queen, her action in regard 
 to the ' Bedchamber Question,* 1839, 
 734 ; her Memorandum to Lord 
 Palmerston on relations of a Secre- 
 tary of State to Crown, 1850, 735. 
 
 Vicus, the, [or Mark,] 6. 
 
 Villeinage, tenure in, 70 ; gradual de- 
 cline of, 298 ; history of, 306-16 ; 
 
 3 I' 
 
882 
 
 Index, 
 
 Villeinage — 
 
 last case in which it was pleaded, 
 15 Jac. I., 316, V. 3; extinction 
 promoted by dissolution of mona- 
 steries, 455, n. I. 
 
 Villeins, ordination of, loo-ioi, and 
 n. I ib. ; insurrection of, 1 38 1, 306 
 (cf. 425) ; status of, L Hen. II., 308 ; 
 change in signification of word, 309 ; 
 services performed by, id. ; demands 
 of insurgent, in 1381, 315. 
 
 Visitation, Articles of, /. Ric. I., 176. 
 
 WAGER of Battle, 72, and id. n. 4. 
 
 Wager of Law, 127-8. 
 
 Wakefield, battle of [1460], 222. 
 
 Wales, retained by Britons, 2 ; annexed 
 to English Crown, 1284, 4°! W- 
 752) ; English rights, privileges, and 
 laws, extended to, 1536, ih. 
 
 Waller, Edmund, speech on rights and 
 privileges of Parliament, 597. 
 
 Wallingford, Peace of, 1 153, 92, 209. 
 
 Walpole, Sir Robert, 744, 758, 777, 
 
 [Walpole, Sir Robert, Life of, cited, 
 
 76S.] 
 Walter, Hubert, Abp. of Canterbury, 
 
 Justiciar, 104, 
 Waltham, John de. Writ of Subpoena 
 
 introduced by, /. Ric. II., 189. 
 Wapentakes, Anglian synonym for 
 
 Hundreds, 17, 
 Warbeck, Perkin, 402, «. 2. 
 Wardship, lord entitled to, if heir 
 
 under age, 65 and ib. n. 5 ; of infant 
 
 tenant of socage estate, 69, n. 1 ; of 
 
 children to belong to mother or 
 
 relation, Ch. Hen. I., 84 ; remedy of 
 
 abuses of, by Magna Charta, 118; 
 
 of lands held of mesne lords, 121. 
 Wason V. Walter, 1868, right to publish 
 
 faithful report of Parliamentary 
 
 debates, determined, 782. 
 Watch and Ward, [1252], 200. 
 Wears in Thames, &c., prohibited by 
 
 Mag. Chart., 142. 
 Weights and measures, uniformity of, 
 
 enjoined by Mag. Chart., 142. 
 Welsh Marches, Court of, abolished 
 
 by Long Pari., 608. 
 Wensieydale, Lord, attempt to create 
 
 [Sir James Parke] a peer for life only 
 
 as, 240, n. 2 [cf. 750, and Ed.'s n. 5, 
 . ib.). 
 
 Wentworth, Paul, M.P., 490, 491. 
 Wentworth, Peter, M.P., his speech 
 
 on liberty and freedom of speech, 
 
 491 ; his direct attack on Elizabeth, 
 
 Wentworth— 
 492 ; imprisoned by Commons, 493 ; 
 speech on Cope's Bill, ib. ; again 
 imprisoned, 494 ; brings forward 
 Succession Question, ib. 
 
 Wentworth, Thomas, M.P. for Oxford, 
 sent to Tower 1 6 14, 531 ; his parent- 
 age, &c., ib., n. 2. 
 
 Wentworth, Sir Thomas, elected for 
 Yorkshire, 540, n. ; appointed Sheriff 
 [1626], 558, n. 2 J deserts Popular 
 party, and created Earl of Strafford, 
 579 ; adviser of Car. I. in career of 
 despotism, ib. • attaches great im- 
 portance to opinion of Judges on 
 levying of ship-money, 589, n. 1 ; 
 Pym denounces him, in Long Pari., 
 602 ; impeachment and execution, 
 603. 
 
 Wergild, a money compensation for 
 manslaughter, 24, 44. 
 
 Westbury, Borough of, fined for receiv- 
 ing bribe at election, 1571, 502 ; 
 ^10,000 offered for seats of, 1807, 
 
 , 755- 
 
 Weston, J,, imprisoned for Judgment 
 [for] Crown, Ship-money case, 607, 
 n. I. 
 
 Whig and Tory parties, origin of, 660, 
 661, n. I ; difference in principle 
 between, 661 {cf. 642, 702). 
 
 Whigs, opinions of, as to forfeiture of 
 Crown by Jac. 11. , 675-6. 
 
 Whitelocke, James, barrister, im- 
 prisoned [for Professional Opinion], 
 t. Jac. I., 538. 
 
 Whitgift, Abp. [succ. Grindal], 478, 
 480. 
 
 Widows, provisions in Mag. Chart., 
 119 (C/: 84). 
 
 Wilkes, John, 1776, his scheme of 
 reform, 759 ; proceedings of Com- 
 mons against, 771 ; expelled, ib. 
 returned for Middlesex, and again 
 expelled, ib. ; declared incapable of 
 re-election, 772 ; again elected, 1774, 
 ib. ; Geo. III.'s letter to Lord 
 North, 771, n. 3 ; declaration of 
 Commons expunged from Journals, 
 772 ; elected alderman of London, 
 
 778. 
 
 Wilkes V. Wood, 799, and n. 3. 
 
 Will, right to devise land by, [ceased, 
 generally, at Conq.], 66. 
 
 William the Atheling, 173, 207, 210. 
 
 WiLUAM L, 1066-87, a competitor for 
 English crown, 49 ; secures moral 
 support of Pope, 50 ; invades 
 England and defeats Harold at 
 
Index. 
 
 88: 
 
 William I. — ' 
 
 Senlac, ib. ; elected by Witan and 
 crowned at Westminster, id. and 206 ; 
 assumes title of * King of the 
 English,' 51 ; in theory a Constitu- 
 tional King, id. ; national act of 
 allegiance to [1086], 59 ; checks 
 power of his barons, 61, and id., n. I ; 
 abolishes the great earldoms, id. ; his 
 policy national rather than feudal, 
 71 ; made but few changes in the 
 laws, id. ; renews law of Edward 
 the Confessor, id. ; maintains public 
 peace, "JS > prohibits selling of men 
 into foreign slavery, id. ; harshness 
 of his Forest laws, 74 ; refuses to 
 do fealty to Hildebrand, 75 ; [sepa- 
 rates Spiritual and Temporal Courts, 
 75 ;] his canons of Royal Supre- 
 macy, 76 ; his opulence, 77 ; great 
 power, 78 ; his government despotic, 
 id. ; summary of his character, 78-9, 
 [and Eu.'s n. id.]; his [non-primo- 
 genitary] heirs, 230, n. i ; alliance 
 with Papacy, 417. 
 
 William II., 1087-1100, Constitutional 
 points of importance in his reign, 
 80 ; gains support of English against 
 Barons, 83 ; pi-o?nises good laws, 
 id. ; accession to Crown, 206 ; 
 death, id.., and 207, n. i. 
 
 William III., 1688-9 — 1 701-2, his 
 election to crown by Parliament, 
 231; invitation to England, 674; 
 lands at Torbay, 675 ; requested to 
 assume provisional government, id. ; 
 declines to become Regent or King 
 Consort, 677 ; opposed to Party 
 government, but adepts it on advice 
 of Sunderland, 702. 
 
 William III. and Mary, 1688-9, 231 ; 
 accept crown, 679-80. 
 
 William IV., sudden dismissal of Mel- 
 bourne ministry by, 733 ; surrender 
 of Crown revenues to Pari., 739. 
 
 Williams, Bp., case of, in Star Cham- 
 ber, 581. 
 
 Wills recognised in Ch. Plen. I. , 84. 
 
 Winchelsey, Abp., \_Conf. Chart, partly 
 due to], 267. 
 
 Winchester, Henry, Bp. of, 4, n. i, 
 89, [208]. 
 
 Winchester, Stat, of [1285], 201. 
 
 Windedank, Secretary, impeached by 
 Long Pari., 603. 
 
 Witan = wise men, those who attended 
 the Witenagemot, 34 ; Sigebert of 
 Wessex, Ethelred II. and Hartha- 
 cnut, deposed by, 35-6 {cf. 217). 
 
 Wite, fine payable to King, 31, 45. 
 
 Witenagemot, the, Bishops members of, 
 10 ; constitution, 33 ; practically 
 aristocratic body, 34; represented 
 national will, 35 ; powers most ex- 
 tensive, id. ; could depose King, id. ; 
 elect King, 36 ; had direct share in 
 every act of government, 37 ; acted 
 as supreme court of justice, id.\ ex- 
 tensive powers not always exerted, 
 except in legislation and taxation, 
 38 ; right of electing King unfettered, 
 50 ; continued by William the Con- 
 queror, 71 ; gradually changes into 
 Curia Regis, id. {cf. 236) ; debate 
 in, [T. R. E.], 273, n. i. {See Parlia- 
 ment.) 
 
 Witnesses, legally appointed in civil 
 causes, 43 ; analogous to public no- 
 taries, id. 
 
 Wolsey, Cardinal, attempts to intimi- 
 date Commons in matter of taxation, 
 392 ; convicted of having exercised 
 Legatine jurisdiction, 436; com- 
 menced visitation of Regular and 
 Secular clergy, 451 ; procured sup- 
 pression of many convents to endow 
 new college at Oxford, id. 
 
 Women, Celtic words in our language 
 [mostly] relate to, 2, n. ; could only 
 appeal for death of husband, 131. 
 
 Wondenvo7'king, = Merciless, Pari. [t. 
 Ric. II.], 306. 
 
 Wool, heavy tax on, 264, 268, 269, 
 271 ; imposition without consent of 
 Commons, 284 ; grants on, by 
 merchants to Edw. III., without 
 consent of Commons, 285 (similar 
 grants declared void by statute 
 
 [1363], ^'^O 
 
 Writ of privilege. Members of Parlia- 
 ment originally released by, 343-4. 
 
 Wycliffe, John, his writings * the be- 
 ginning of the Reformation,' 298 
 [and n. 2] ; leader of Lollards, 424 ; 
 translates Bible, id. ; revolutionary 
 and socialistic tendencies of followers, 
 
 425. 
 Wyllford, Sir Thomas, Provost- Marshal, 
 t, Eliz. [1595], 484. 
 
 YEL VERTON, Mr., M.P., [on Royal 
 Prerogative, t. Eliz.], 491. 
 
 Yonge's case, 1455, freedom of speech, 
 342. 
 
 Yorkshire, enormous expense of con- 
 tested election for, 1807, 756. 
 
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