C/?u^enU^y y^ (QauftrntJi/ c/6., .//< -JUr J/'///" /*■> Ylrn Vf r^*/y 7-13 Deposition 13 Royal Power and Prerogative H -20 * Anglo-Saxon and Norman Kings 14, 15 Plantagenets 15-22 Lancastrians 22, 23 New Monarchy 23-25 Stuarts 25-28 Hanoverians 28, 29 Regencies 29-32 Allegiance 32, 33 Bretwaldas 33 Queen Consort ." . . 33 Queen Regnant ......... 34 I Xll TABLE OF CONTENTS. CHAPTER II. THE CROWN AND THE COURTS (pp. 35-9 1 ). PAGES Origin of the King's Council 35 Its history to Henry III 35, 36 „ „ from Henry III to Henry VI .... 3 6 ~3 8 Relations of the Council to Parliament ...» 38, 39 Powers of the Council 39 4 2 The Council from Henry VI 4 2 ~44 Powers of the Privy Council 44> 45 Its Committees 45 , 46 Privileges of Privy Councillors 46 Ministerial Responsibility . 46-48 The Cabinet 48-52 The Star Chamber 52-55 The High Commission Court ...... 55 Court of Requests . . ; 55> 56 Council of the North 56 Council of Wales 56 Court of Wards 5 6 Court of Augmentation 57 Courts of Law . 57""°4 Curia Regis 57, 58 Exchequer . 58, 59 Common Pleas 57 61 King's Bench 61, 62 Chancery 62, 63 Exchequer Chamber 63, 64 Forest Courts . 64 Courts of the War Department 64, 65 Court of the Marshal and Constable .... 64 Court of the Admiralty 65 Courts of the Household Department . . . . . 65, 66 Court of the Lord Steward 65 Court of the Lord High Steward 65, 66 Court of the Marshalsea 66 The Palace Court 66 Courts of special jurisdiction 66-68 Stannary Courts ........ 66, 67 Courts of the Cinque Ports 67 „ „ Counties Palatine 67 Commissioners of Sewers . . • . 67, 68 TABLE OF CONTENTS. Xlll Local Courts 68-73 Shire Court 68-70 Hundred Moot 70, 71 Township Moot 71 Sheriffs Tourn 7'»73 Manorial Courts 72, 73 Private Jurisdiction 73 Anglo-Saxon Police 73, 74 Compurgation 74 Ordeal 75, 76 Wager of Battle 76 Judicial Punishments 77~8o Torture 80, 81 Benefit of Clergy 81,82 Sanctuary .......... 82 Trial by Jury 83-87 Assize of Novel Disseisin 87 „ Mort d'ancestor 87 „ Darrein Presentment 87, 88 Relations between the Crown and the Courts ... 88, 89 Appellate Jurisdiction. 89, 90 Chief enactments relative to Justice and Police, up to 1307 . 90, 91 CHAPTER III. THE CENTRAL ASSEMBLY (pp. 91-161). The Witenagemot The Great Council Parliament Powers of Parliament .... Its summons, duration and dissolution . Relations between Crown and Parliament from 1295 Privilege of Parliament .... Common to both Houses Special privileges of the Lords Special privileges of the Commons The enforcement of privilege Collisions between Lords and Commons 92-94 94* 95 95-161 96,97 97-99 99-102 103-119 103-113 H3,"4 114-117 1 1 7-1 19 I20, 121 XIV • TABLE OF CONTENTS. PAGES The House of Lords 121-128 Creation of Peers 122-124 Composition of the House 124-127 Functions of the Lords 127,128 The House of Commons 128-147 Origin of 128 Growth of the representative principle .... 1 28-131 County Franchise ........ 1 31-133 Borough Franchise J 33- J 35 Composition of the House, Knights of the Shire and Burgesses 135, 136 Numbers of 136-138 Persons disqualified as w embers 1 38-141 Oaths taken by members . . . . ' . . 141,142 Bribery of members 142,143 Bribery at Elections . 143,144 Reform . 144-146 The Ballot 146, 147 Party Government 1 4 7-149 Coalition Ministries 149, 150 Impeachment . . . . . . . » . 150-157 Bill of Attainder . 157,158 Important dates in parliamentary history . . . . 158, 159 Names of Parliaments 159-161 CHAPTER IV. LEGISLATION (pp. 1 62- 1 74). Anglo-Saxon Legislation 162-164 Charters 164 Assizes 164 Provisions 165 Statutes founded on Petitions 165,166 Ordinances 166, 167 Initiation of Legislation 167,168 Bills 168, 169 Private Bills 169 Legislative powers of the Crown 169-173 Proclamations 169-171 The Dispensing power 171,172 The Suspending power . . . . . . . 17 2 , J 73 Chief legislative acts to 1 295 I 73> J 74 TABLE OF CONTENTS. XV CHAPTER V. TAXATION AND FINANCE (pp. 175-202). CAGES Ordinary Revenue of the Crown J 75— • 85 Crown Lands 175, 176 Civil List 176,177 Feudal and Miscellaneous revenues . . . . 177, 178 Purveyance 179-181 Coinage 181-183 Forest revenues 183-185 Taxation 185-193 Direct taxation 187-190 Indirect taxation 190-193 The Corn Laws 193, 194 Assessment of taxes ........ 194-196 Local taxation ' 196,197 The National Debt 197, 198 Illegal and arbitrary taxation ...... 198-202 Statutes limiting arbitrary taxation 202 CHAPTER VI. THE LAND (pp. 203-221). Land tenure before the Norman Conquest .... 203-205 Feudalism 205-209 Feudal tenure 209-2 1 1 Feudal incidents 211-213 Alienation of land 214 Entail 214 216 Divisions of the land 216-219 Counties Palatine 219 Cinque Ports . 220 Stannaries 221 Xvt TABLE OF CONTENTS. CHAPTER VII. THE PEOPLE (pp. 22 2-259). PAGES Athelings 2^2 Eorls 222 Thegns . . .222, 223 Ceorls . 223 Thralls, Theows, or Slaves 223, 224 Laets 324 The Baronage and the Crown, 1066 1 272 .... 224-226 Livery and Maintenance 226, 227 Villeins 227-229 The Poor Laws 229-232 Merchants 232-235 Aliens 235-237 Outlaws . 237 Jews 237-239 Liberty of the Subject 239-243 Liberty of Opinion 243, 244 Law of Libel 245, 246 Presentation of Petitions 246, 247 Political Agitation 247, 248 Official Ranks 248-259 Ealdorman 248, 249 Sheriff 249-252 Itinerant Justices 252-254 Conservators of the Peace 254, 255 Lord Lieutenant 255 Justiciar 255 Lord High Chancellor 255, 256 Lord High Treasurer 256 Chancellor of the Exchequer 257 Lord Privy Seal 257 Secretaries of State 257 Lord High Admiral 257, 258 Lord High Constable 258 Earl Marshal 258 Lord High Steward 258 Lord Chamberlain 259 Lord High Almoner ....... 259 TABLE OF CONTENTS. XVll CHAPTER VIII. THE TOWNS (pp. 260-271). PACKS The Towns before the Norman Conquest .... 260, 261 The Towns after the Conquest 261,262 Gilds 262-265 The Towns, 1 1 54-1 265 265-268 Their later history 268-271 CHAPTER IX. THE CHURCH (pp. 272-304). History to the Norman Conquest . 272-274 Church and State, 1066-1529 274-285 The Reformation . 285-289 Chief dates from James I 290-293 Ecclesiastical Courts 293-296 Convocation .... . 296-300 Tithes . 300, 3 QI Queen Anne's Bounty . 302 Summary of Chief Dates in Church History 302-304 CHA1 >TE R X THE DEFENCES OF THE REALM (pp. 305-322). (1) Military 305-319 Service by allegiance 3°5-3°9 Fyrd 3°5-3°7 Militia 307, 308 Volunteers . 308, 309 Service by homage 3 9 _ 3 * * Thegnhood 309 Feudal levy 3i°-3i J b xvill TABLE OF CONTENTS. PAGES Service by pay 3""3i5 Mercenaries 311, 312 Commissions of Array 312, 313 Standing Army 313-315 Martial Law $ I 5S l 7 Impressment 317, 318 Chief dates in the history of the Army .... 318,319 (2) Naval 319-322 The mediaeval Navy 319, 320 Work of Henry VIII 320 Stuart Navies 320, 321 Naval Discipline 321 Impressment of Merchant Vessels 321,322 Appendix A, containing a Summary of Important Consti- tutional Documents 3 2 3~335 Appendix B, containing a Summary of the More Important Cases in Constitutional History 336-341 LIST OF AUTHORITIES N.B. — In referring to the works which are marked with an asterisk, only the author's name and the volume have been quoted. Anson, *Iaw and Custom of the Constitution. 1892. Ashley, Economic History. Pt. I, 1888; Pt. II, 1893. Burrows, The Cinque Ports. 1888. Constitutional Essays. 1887. Cunningham, English Industry and Commerce. 1890. Dicey, Law of the Constitution. 1889. „ The Privy Council. 1887. Dictionary of English History. 1889. Fasciculi Zizaniorum. Ed. Shirley. (Rolls Series.) Forsyth, Trial by Jury. 1852. Freeman, William the Conqueror. (Twelve English Statesmen.) „ Historical Essays. 1892. Gardiner, History of England. 1 603-1 642. 1884. „ Great Civil War. 1886. Gneist, * English Constitutional History. 1886. Green, Conquest of England. 1883. Gross, The Gild Merchant. 1890. Hallam, English Constitutional History. 1886. „ Middle Ages. 1881. Hook, Church Dictionary. 1871. Hore, History of the Church of England. 1893. Lane-Poole, Wycliffe. 1889. (Epochs of Church History.) Loftie, London. (Historic Towns.) 1889. Madox, Firma Burgi. 1726. Maitland, Select Pleas in Manorial Courts. 1889. (Selden Society.) „ Justice and Police. 1885. (English Citizen Series.) May, Parliamentary Practice. 1893. , , * Constitutional History . 1882. XX LIST OF AUTHORITIES. Medley, English Constitutional History. 1894. Morley, Walpole. 1890. (Twelve English Statesmen.) Nicholas, Historic Peerage. 1857. Oman, Art of War in the Middle Ages. 1885. Perry, Student's Church History. 1881. Trothero, Statutes and Constitutional Documents. 1894. Ruding, Coinage of Great Britain. 1819. Selden, Titles of Honour. 1 631. Stubbs, * English Constitutional History. 1878. „ Select Charters. 1884. „ Early Plantagenets. 1881. (Epochs of Modern History.) Taswell-Langmead, English Constitutional History. 1890. Traill, Central Government. 1892. (English Citizen Series.) Vinogradoff, Villainage in England. 1892. Wakeman, The Church and the Puritans, 1887. (Epochs of Church History.) Warburton, Edward III. 1876. (Epochs of Modern History.) Wharton, Law Lexicon. 1883. A SHORT CONSTITUTIONAL HISTORY OF ENGLAND CHAPTER I. THE CROWN. Kingship in England was a product of the Anglo-Saxon Origin of , . ^ i i rr. ..,11 English invasion : in their German homes, the 1 eutonic tribes had Kingship. been ruled by Ealdormen in limes of peace, by Heretogan in times of war. The union of the peaceful functions of the former with the military functions of the latter formed the basis of English kingship. The advantages of the new institution guaranteed its permanency, and it was gradually adopted by all the invading tribes. The position of the early Anglo-Saxon King 1 was entirely Anglo-Saxon personal. He was the head of the race, not the lord of the land. He claimed descent from Woden, thus adding divine prestige to personal merit. His dignity was practically here- ditary, for though in theory elective, the Crown always passed to a member of the royal house. The increase of the royal power is one of the main char- increase of • • /-i 4 i o • j l i • r royal power. actenstics of the Anglo-Saxon period : the cruet causes were — i. The close alliance between Church and State. The former increased the King's influence by investing his office 1 The word king {cyning) is closely connected with kin. According to Prof. Max MUller the original meaning of cyning was father of a family. 2. CHAPTER I. Treason. with peculiar sanctity, and by preparing the way for political unity. 2. The creation of a nobility of service dependent on the Crown. 3. The struggle for supremacy between the Heptarchic kingdoms, ending in the victory of Wessex, and the acknow- ledgement of her King as overlord of all England. 4. Increase of territory consequent on the acquisition of the South-West and the reconquest of the Danelaw. With the increase of the King's power came a change in his position. His relation to his subjects tended to become territorial owing to a. His increased control of the folkland (p. 204). b. The development of the Thegnhood (p. 222) into a powerful territorial nobility, resembling the later feudal baronage. c. Commendation ; — a practice by which a freeman received protection from the King or a powerful lord on condition of doing suit and service in the latter' s court. d. The conquest of the Danelaw. The tie between the West-Saxon King and his Danish subjects was obviously not one of blood. He was not the head of their race, but the conqueror of their country and the lord of their land. In a word, the relation was territorial l . With increased power came an increase of territory and of revenue. The King assumed imperial titles 2 , exacted an oath of fealty from his subjects (943), and exercised an increasing influence over the Witan. The national peace became his peace, the national courts ro)al courts. The monarch was regarded as the source of justice, and ' offences against the law become offences against the King V The development of the royal power is marked by Alfred's 1 Const. Essays, 12. 2 Athelstan (925) styles himself Rex et Rector toiius Brittaniae, and Edgar (959) Totius Albionis Imperator. Edward the Confessor how- ever reverts to the title Rex Anglorum, and Rex Angliae does not become the formal title of the King on the Great Seal until fohn. 3 Stubbs, i. 183. THE CROWN. 3 Law of Treason (circa 890), which runs as follows : — 1 If any man plot against the King's life, of himself or Alfred's law. by harbouring of exiles, or of his men, let him be liable in his life, and in all that he has V From now to the time of Edward III the law of treason remained undefined except by the arbitrary decisions of the judges. In 1352, however, Parliament asked for legislation Edw. ill's on the subject, and the Statute of Treasons (25 Edw. Ill, st. 5, c. 2) was passed, limiting the offence to the following points: — 1. Compassing the death of the King, Queen, or their eldest son. 2 . Violating the Queen, the King's eldest unmarried daughter, or his eldest son's wife. 3. Levying war against the King in his realm, or adhering to his foes. 4. Counterfeiting his seal or money, or importing false money. 5. Slaying the Chancellor, Treasurer, or fudges in the dis- charge of their duty. The aim of the statute is personal. It regards an offender as a man who has broken faith with his lord, and its object is to protect the King, not the State, as embodied in the existing constitution 2 . In the law-courts its clauses were frequently strained to meet cases which did not fall within the letter of jthe Act. In order to protect the Government against rebellion, Judicial con- ,.,,,., . . .. structions. the judges held that a conspiracy to levy war against it, or an actual insurrection to alter the constitution or to repeal exist- ing laws, was evidence of compassing the King's death. It was on this ground that convictions were obtained in the following cases : — Norfolk (1572), who had intrigued to marry Elizabeth's rival, Mary Queen of Scots. Essex (i6oi} i ^.who gathered an armed force with the intention of removing his enemies from the royal council 1 Sel Charters, 62. * Anson, ii. 72. B 2 4 CHAPTER I. The Farley Wood malcontents (1663), who were concerting a rising against the Government \ Russell (1683) : he seems to have merely agitated for a new Parliament. Harding [temp. William III), who had sent help to France, then at war with England. Damaree and Purchase case (1 710), in which the destruction of certain dissenting chapels was held to indicate a design to burn down all such places of worship, and thus to be equivalent to levying war against the King 2 . (ii) Written and published words, importing and compass- ing the King's death, were held to be overt acts of treason ; and even unpublished writings libelling the Government, if followed by a rising, were classed as treasonable. Peacham (1 6 1 5) was convicted for writing a libellous sermon which was neither printed nor published 3 . Williams (162 1) was executed for prophesying the King's death Algernon Sidney (1683) was condemned for writing a treatise asserting the responsibility of Kings to their subjects 4 . In 1382, owing to the insurrection of the previous year, it was made treason to begin a riot ; and in 1397, by 2 1 Ric. II, cc. 3, 4, the heads of treason were still further defined. An important statute passed in 1495 declared that treason could The de/arto only be committed against a monarch who was King de facto King, 149s nQt de j ur ^ Tudor legis- The Tudor period saw numerous additions made to the Treason. treason laws. Their main objects were to enforce the policy of the Crown, to secure the succession, and to oppose the papal influence in England 5 . Henry VIII used them as a weapon with which to terrify men into acquiescence with his will. In the twenty-sixth year of his reign (1534) it was declared treason to endeavour to retain possession of arms, ships, or fortresses, which belonged to the King, after a legal summons 1 Hallam, iii. 153. 2 Ibid. 158. 3 Ibid. i. 343. 4 Ibid. ii. 458 5 Anson, ii. 72. THE CROWN. 5 to surrender, to attempt to injure, or to wish injury to, the Sovereign, or to call him a heretic, or to deny any of his titles ; and subsequent laws extended the penalties of treason to all who denied and afterwards to all who maintained the validity of the royal marriage with Anne Boleyn. Many of these new treasons were abolished by i Ed. VI, c. 12 (1547), and though re-enacted by 5 & 6 Ed. VI, c. 11, were again removed from the statute-book by 1 Mar. st. 1, c. 1. By 3 & 4 Ed. VI, c. 5, assemblies of twelve or more persons to discuss State affairs were declared treasonable. In 1554, the unpopularity of Mary rendered it necessary to declare praying for the Queen's death, or preaching against the title of the King (Philip of Spain) and Queen, and their issue, to be treasonable offences, 1 & 2 Phil, and Mar. cc. 9, 10. In 1559, by 1 Eliz. c. 5, it was made treason to deny the Queen's title; in 1 571 (13 Eliz. cc. 1, 2), to deny the power of the Queen and Parliament to limit the succession, or to call the. Queen heretic, schismatic, or usurper, or to bring papal bulls into England ; in 1572, after the execution of the Duke of Norfolk (p. 3), the movements in favour of Mary Queen of Scots caused it to be declared treason to hold castles against the Queen, or to attempt to rescue prisoners (14 Eliz. cc. 1, 2). In 166 1 (13 Car. II, st. 1, c. 1), it was made treason to imagine any bodily injury to the King; in 1702, to hinder, or attempt to hinder, the next in succession to the throne according to the Act of Settlement; in 1707, to assert by writing, or printing, the right to the Crown of any other person than the next in succession according to the Act of Settlement, or to deny the power of the Sovereign and Parliament to limit the succession. In 1 7 15 the Riot Act gave the Government power to deal R » ot A «» with rioters as felons, and thus dispensed with the necessity for strained construction of the statute of Edward III ; and the Act of 1795, by making treasonable all attempts to intimidate 1795 Parliament, or force the Crown to change its ministers, gave statutory recognition to offences against the State which were not also offences against the King 1 . 1 Anson, ii. 7a. 6 CHAPTER I. Treason In 1 848, the offences which had previously been regarded l8 e 4 8. nyAct ' as high treason, with the exception of those actually committed against the Sovereign, were made treason felony, 187a and so not necessarily punishable with death. In 1870 forfeitures for treason were abolished and the punishment reduced to hanging 1 . Procedure in Before the close of the seventeenth century, trials for Treason. treason were most unfairly conducted. Previous to the reign of Edward VI only one witness was necessary to secure a con- viction, and though the statute of 1552 increased the number to two, it did nothing to remedy the hardship to which the accused was subject. He was first privately examined by the Privy Council, and when tried in public was called upon to answer at a moment's notice charges which had been prepared at leisure 2 . His witnesses could not be sworn, no counsel might plead his case, and the Court took his guilt for granted. In fact it was . extremely difficult to secure an acquittal ' unless the defence amounted to a positive proof of innocence V Act of 1696. The Act of 1 696 (7 & 8 Will. Ill) put an end to this iniquitous system by allowing the prisoner to employ counsel, to compel the attendance of witnesses, and to receive a copy of the indictment five, and a panel of the jury two, days before the trial. It further provided that the two witnesses for the prosecution must both depose to acts relating to the same kind of treason 4 , and forbade the introduction during the trial of evidence which had not been specified in the indictment. No prosecution was to be commenced after three years from the commission of the offence, except for an attempt on the 1 ' Treason, therefore, as distinct from treason-felony, is the doing or designing anything which would lead to the death, bodily harm, or restraint of the King, levying war against him, adhering to his enemies, or otherwise doing acts which fall under the statute of Edward III.' Anson, ii. 73. 2 The Court sometimes adjourned to allow time for defence (e.g. in Strafford's case, 1641), but this practice was not usual. 3 Gardiner, History of England, 1603-42, i. 124. * e.g. a conviction could not be secured if one witness deposed to an act of imagining the King's death, and another to an act of adhering to his enemies. THE CROWN. 7 King's life. Procedure was further regulated by i Anne, c. 9, which enacted that the Crown witnesses should be examined on oath ; and by 7 Anne, c. 21, which provided the prisoner with a copy of their names ten days before his trial began. The Succession to the Throne. From the earliest times the power of the crown was subject to two checks * : — 1. The increasing power of the nobles consequent on the acquisition of large estates with jurisdiction over the inhabitants (p. 73). 2. The elective character of the monarchy. The germ of the hereditary principle may be traced very Hereditary early in the fact that, while the Witan (p. 93) had the sole power of electing the Anglo-Saxon King, they almost invari- ably confined their choice to the royal family, and to the eldest male representative, if of full age and capacity 2 . Ex- ceflions, Canute, 1017; Harold, 1066. 'Every so-called irregularity in the West-Saxon Succession,' says Dr. Gneist 3 , ' may be referred to testamentary disposition, to agreements respecting claims of inheritance, or to the personal incapacity of the person passed over.' The Norman Conquest gave a considerable impulse to The Here- the hereditary principle. Arguing from the analogy of the Elective a feudal fief, men came to look on the crown as the property nnap e ' of the sovereign, and to apply to it those rules of succession which regulated the descent of ordinary estates. But the 1 The strength of these checks depended greatly on the personal character of the King. Notice the distinct decline in the royal power owing to the weakness of kings like Ethelred II and Edward the Con- fessor. 2 The nominee of the late king occasionally had the advantage, e.g. Harold, named by Edward the Confessor, on his death-bed. Minors, as a rule, were not elected for practical reasons — the only instances being the two brothers, Edward the Martyr, (975), and Ethelred II, (979) — thus Ethelred I was chosen (866) in preference to his young nephew; Alfred (871) was preferred to the sons of Ethelred ; Athelstan, the illegitimate son of Edward the Elder, was chosen (925) before his legi- timate brother ; Edred (946) before Edwy ; and Edward the Confessor (1042) before the son of Edmund Ironside. — See also Stubbs, Select Charters, 62. Cone. Legatin., Cap. xii. * Const. Hist. i. 39 note. 8 CHAPTER I. Anglo-Nor- man Kings. Angevin Kings. Edward I. immediate descendants of the Conqueror were unable to plead an hereditary title, and thus the old elective theory, — almost the sole check on the despotism of the Norman Kings — was maintained in all its fullness. William himself was careful to go through a form of election, and it was the vote of the central assembly, backed by the force at their disposal, which constituted the title of Rufus and Henry I. In his Charter of Liberties (noo) the latter declares himself crowned ' communi consilio baronum totius regni Angiiae 1 .' The King made the barons swear fealty to his daughter Maud, thus hoping to secure the crown for her ; at his death however it fell to Stephen, who in his second charter says he is ' assensu cleri et populi in regem Anglorum electus 2 .' He too failed to hand down the crown to his son, and was succeeded by Henry II, son of Maud. As William of New- burgh says 3 : — haereditarium regnum suscepil conclamatus ab omnibus. At his death the crown passed to his eldest surviving son Richard, but the election of John (1199) in preference to his nephew Arthur shows that the hereditary principle was not yet established. At his coronation the Archbishop, Hubert Walter, declared the elective character of the Kingship, stating that the King of England was chosen ab universitate regni after invoking the grace of the Holy Spirit 4 . The idea that the succession was confined to the male line, which, in spite of the efforts made in favour of the Empress Maud, was a prevalent one, prevented Arthur's sister Eleanor from being named, and on John's death the succession of the youthful Henry III was secured by the admirable policy of the Earl of Pembroke, notwithstanding the bad government of the preceding reign. At Henry's death, his son Edward was recognised as King by hereditary right, though owing to his absence abroad the ceremony of election and coronation could not be performed 1 Sel. Charters, 100. 2 Ibid. 120. s Ibid. 127. * It must be mentioned, however, that the authority for this is a some- what suspicious passage in Matthew Paris. THE CROWN. 9 for nearly two years. He is the first English King whose reign dates from the demise of his predecessor and commences before coronation. The inconveniences of the interregnum x were thus obviated, and the way prepared for the theory that the King never dies, which became the accepted doctrine by the reign of Edward IV. On the deposition of Edward II, his son Edward III was Lancastrian chosen, and was in his turn succeeded by his grandson, Richard II, a minor, who is expressly declared by Arch- bishop Sudbury to have succeeded by hereditary right. After the deposition of Richard, Henry IV (son of John of Gaunt, fourth son of Edward III) was elected by the voice of the people; Parliament settled the succession on him and on his heirs 1404, and confirmed it 1406 (7 Hen. IV, c. 2); the Lancastrian title was therefore purely Parliamentary ', though Henry showed his regard for hereditary right by claiming to be the lineal successor of Henry III through his maternal ancestor, Edmund Crouchback, the alleged elder brother of Edward 1 2 . The House of York, descended on the maternal side from Lionel of Clarence, third son 3 of Edward III, claimed on Yorkist titles. 1 Between the death of one King and the election and coronation of another the King's peace was in abeyance. The maintenance of order was the business of no one, while the State had no one to represent it for the purpose of enforcing the peace. Anson, ii. 57. 2 Alleged claim of Henry IV. Henry III. Edmund Crouchback=pBlanche of Artois. {alleged eldest son). Henry Earl of Lancaster. Real claim of Henry IV. Edward III. Henry Duke of Lancaster. I I John of Gaunt=f Blanche of Lancaster. (4M son.) Henry IV. The story of John of Gaunt and his supporters was that Edmund was in reality the eldest son, but that the infirmity of a crooked back, (whence the name Crouchback), caused him to be passed over in favour of Edward I. Crouchback, however, simply means one who has taken the cross, i.e. become a Crusader. 3 The second son, William of Hatfield, b. 1336, died young. IO CHAPTER I. the principle of indefeasible hereditary right 1 ; in 1460, Parliament compromised the matter by giving the unpopular Henry VI a life interest only in the crown, and declaring Richard Duke of York heir. On the deposition of Henry, at the end of the same year, Richard's son Edward was elected King by the popular voice, Richard himself having been killed in battle in the meantime. Richard III managed to supplant his nephew Edward V, and to obtain a kind of election by the people, alleging that his brother Edward IV was at the time of his marriage with Elizabeth Woodville, Lady Grey, betrothed to Lady Eleanor Butler, and that his children were therefore illegitimate; whilst the children of the Duke of Clarence were debarred from the succession by their father's attainder. Parliament entailed the crown on Tudor title, his heirs, (1484). Henry VII claimed the crown by inherent right and by victory over his enemies; and though his title is very debateable 'it is quite possible to maintain that he was King by hereditary right V Parliament however wisely avoided the delicate point, and enacted (1485) ' that the inheritance of the crowns of England and France rest, remain, and abide in the person of our now Sovereign Lord, Harry the Seventh, and in the heirs of his body V In the reign of his son the succession was frequently 1 Yorkist claim. Edward III. ! I I Lionel of Clarence. Edmund of York. ($rd son) Philippa=pEdmund Mortimer, Earl of March. Roger Mortimer. Anne^Richard of Cambridge. Richard Duke of York. (Killed at Wakefield, 1460.) Edward IV. 9 Stubbs, Lectures on Mediaeval and Modern History, pp. 343-5. 8 Tudor claim. See on opposite page. THE CROWN. II altered at the royal wish. In 1534, by 25 Hen. VIII, c. 22, ActsofSuc- it was entailed on the King's heirs male, and in default on Henry viii.' the Princess Elizabeth; in 1536, by 28 Hen. VIII, c. 7, Mary and Elizabeth were declared illegitimate, and the crown was settled on the issue male of Henry, and Jane Seymour, or, in default, on the issue of any future wife; by this act, Henry was also empowered to devise the succession by will. In 1544, by 35 Hen. VIII, c. 1, Mary and Elizabeth were again conditionally placed in the entail \ and the king was provisionally empowered to devise the succession. Henry, in accordance with these acts, devised the crown, in the event of issue failing his three children, to the descendants of his younger sister Mary, Duchess of Suffolk; but, in distinct opposition to this, on the death of Elizabeth, in whose reign it was made treason to deny the right of the Queen and Parliament to limit the succession, James VI of James 1. Scotland, great-grandson of Henry's eldest sister Margaret, was declared king by the Council, and by ■ the will of the people 2 / and though the Parliament 'fortified his title with an Edward III. John of Ga.unt=^$rdty) Catharine Swynford. (His children by her before marriage were John Beaufort, legitimatised by Richard II, but were ex- Earl of Somerset. pressly debarred from the succession by Henry IV, Feb. 1407. The reservation John, Duke of Somerset, runs, • exceptd dignitate regali?) Margaret Beaufort^Edmund Tudor, Earl of Richmond. Henry VII=pElizabeth of York, daughter of Edward IV. Henry VIII. 1 The influence of the hereditary principle may be seen in the lack of national sympathy for Lady Jane Grey. * Stuart claim. Henry VII. 1 Margaret=p James IV of Scotland. James V. Mary Queen of Scots^pEarl Darnley. James I (VI of Scotland). 12 CHAPTER I. Divine Right. Revolution of 1688. Act of Recognition V the statute declared that he was entitled to reign by descent 2 . During the Stuart reigns, the claims of Parliament to interfere with the Succession were opposed by the upholders of the royal prerogative. They taught that the heir reigned by Divine Right, and that resistance to his rule was both unlawful and sinful. But the right of the national assembly to depose a monarch for misgovernment and elect another in his stead was vindicated by the Revolution of 1688. James II fled from the country, and Parliament declared that he had ' abdicated the government and that the throne is thereby vacant V William and Mary of Orange were named King and Queen and the succession settled on the heirs of Mary's body ; in default of such issue, on the Princess Anne of Denmark and the heirs of her body ; and, failing them, on the heirs of the body of William III. On the death of the Duke of Gloucester, son of the Princess Anne, and heir presumptive to the throne (1700), it became necessary to legislate afresh for the settlement of the Protestant succession, and in 1701, Act of Settle- wa s passed the famous Act of Settlement (12 and 13 Wm. ment, 1701. ■ ' " " . Ill, c. 2), which entailed the crown on the Electress Sophia, Duchess Dowager of Hanover, and the heirs of her body being Protestants, passing over the children of James II ; this Hanoverian succession was confirmed in 1707, and the crown has ever since descended, without interference from Parliament, in a strictly hereditary line 4 . Its hereditary 1 Anson, ii. 59. 3 Until this Act was passed, James was in the eye of the law a usurper. Henry had power given him by Parliament to limit the succession by will, and he devised it to the heirs of his younger sister, Mary Brandon, before those of his elder sister Margaret. 3 Hallam, iii. 94. * Descent of William III and George I. James I. Charles I. Elizabeth=r=Frederick, Elector Palatine. James II. I Mary: Anne. Prince of Orange. Sophia=pElector of Hanover. I George I. Mary = William HI. THE CROWN. 13 character at the present day is firmly established; but the throne is in reality held, not from any claim of blood, but in accordance with the Act of Settlement as expressing the national will and the power of the legislature. In addition to the right of election the Witan had also the power of Deposition, Deposition. which was exercised to remove a King for incapacity or bad government. Instances, before the supremacy of Wessex, — not connected instances in with conspiracies or rebellions : in Northumbria, Alcred, r y 774 ; Ethelred, 779 ; Eardulf, 808. Instances in Wessex : Sigebert, 755, (deposed from all his kingdom except Hampshire) ; Edwy, 957, (deposed by part of his subjects, the Mercians and Northumbrians, in favour of his brother Edgar) ; Ethelred II, deposed 1013, re- stored 1 01 4; Harthacnut, 1037, deposed in Wessex in favour of his half-brother Harold Harefoot *, who had ruled North of the Thames 2 . It is a question whether the offer of the Crown to Prince Lewis of France by the Barons in 12 16, does not amount to a sentence of deposition against John, although the Barons failed to carry that sentence out; whilst Henry III was of course practically deposed by the Provisions of Oxford in 1258 (p. 16 and Appendix A). Instances, in later times, of deposition by Parliament: in later In 1327, six articles were drawn up against Edward II by Edward 11. Bishop Stratford, mentioning several points in which he had broken his coronation oath, and declaring him unfit to govern. Parliament renounced their homage through their spokesman, Sir W. Trussel ; and Edward was deposed and shortly afterwards murdered. In 1399, Richard II was forced to offer to resign the crown, Richard 11. and, thirty-three articles having been drawn up against him, 1 Harthacnut subsequently succeeded Harold, 1040. 2 The case of Ethel wulf, 857, which is sometimes regarded as an instance of deposition, was merely the division of the kingdom between father and son in consequence of a rebellion set on foot by the latter. 14 CHAPTER I. he was deposed by Parliament ' as useless, incompetent, and altogether insufficient and unworthy/ The case of Henry VI, deposed by the Yorkists, 1460, is not in point ; his deposition was not the act of the nation, but of an aristocratic assembly of the baronage ; ' he was not deposed for incompetency or miFgovernment, but set aside on the claim of a legitimate heir whose right he was regarded as usurping l ' the plea being that he had violated the Parlia- mentary agreement of 1460, by attacking Richard of York. James 11. In January 1689, the House of Commons declared, that James II 'having endeavoured to subvert the constitution of this kingdom, — having violated the fundamental laws, and having withdrawn himself out of the kingdom, has abdicated the government and that the throne is thereby vacant V This practically amounted to a deposition ; in fact the Scotch Parliament actually substituted the term forfeited for abdicated. Royal prero- The Royal power and prerogative s . gative under .... . . . , Anglo-Saxon Anglo-Saxon kingship was personal, not territorial. The royal prerogatives were not large, consisting merely of special privileges as regards wergild, the revenue, purveyance, jurisdiction, right of pardon, and the like. The most im- portant seem to have been the possession of all forest rights, and the power of preventing the building of castles. Under Norman the Norman Kings, the royal prerogative was extensive and undefined ; the royal power had increased greatly owing to, 1. The change from personal to territorial kingship. The King becomes lord of the land. 2. The growing wealth of the crown. 3. The administrative system of Henry I. 4. The alliance of crown and people against the feudal nobles. 4. The energetic character of William I and Henry I. 1 Stubbs, iii. 191. 2 Hallam, iii. 94. s Prof. Dicey defines prerogative as ' the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the crown.' — Law of the Constitution, 348. Sir W. Anson groups the prerogatives of the crown under three heads : its powers in the executive and legislative departments of government, its rights as feudal lord, and the outcome of attributes ascribed to the crown by the mediaeval lawyers (ii. 5.) THE CROWN. 15 The King practically did what he found himself strong enough to do ; he imposed what taxes he chose, theoretically with the consent of his council; he repressed lawlessness, and dispensed justice with a strong hand, by this means increasing his own power. The only real check on the despotism of the Norman Kings was the elective character of the succession, which caused them to conciliate the people by the issue of Charters of Liberties. The Angevin, or Plantagenet Kings, were most despotic. Angevin Henry II, in whose reign the lawyer Glanville writes, 'Quod principi placuit legis habet vigorem,' by his whole policy aimed at the consolidation of his own power. Before his death the supremacy of the King was established, and he was the acknowledged head of the Legislature and Executive. Richard I, and John, marked their sense of the power of the Crown by omitting to issue a Charter of Liberties at their coronation, and the latter held ideas of absolutism, which led to his being forced to sign Magna Carta (June 15th, Magna 12 15), 'the keystone of English liberty,' and the first actual arta ' I215 ' limitation of the royal prerogative. Magna Carta is founded on the Charter of Liberties of Henry I, in which the King had acknowledged the limitation of the royal power, and it embodies many of the forty-nine Articles presented to John by the Barons. The most im- portant articles are to this effect : — 1. That no scutage or aid, with the exception of the three ordinary feudal aids, shall be levied without the consent of the Great Council. 2. That the Great Council of the whole kingdom shall be summoned in a regular manner for the imposition of aids. 3. That no freeman shall be imprisoned, exiled, or other- wise punished, except by the lawful judgment of his peers, or by the law of the land. 4. That justice shall not be denied or delayed to any one. (Appendix A.) In November, 12 16, Johns Charter was re-issued, at ^^^{f Bristol, by the Earl of Pembroke, aided by Gualo, the Papal I2l6 > 1 6 CHAPTER I. Legate, with the omission of the clauses referring to taxation, this omission being due to the minority of Henry III, and to the recognition by his ministers that those clauses would deprive them of much of their power of raising money ; it was stated that the suspension of the clauses was merely temporary, though, as a matter of fact, they were never restored. In 1217, another re-issue took place, with the omission of the Forest clauses, which were in the same year issued as a separate Charter, and with some additions, most important of which is a declaration of the King's right to levy scutage as in his grandfather, Henry II's time. This Charter also contains the germs of the Statutes quia empiores 1225. and de religiosis (Appendix A). In 1225, a fresh one was issued, important for two reasons: — (1) it is said to be issued ' spontanea et bond voluntate nostra,' ' which,' remarks Dr. Stubbs \ ' opened the way for a claim on the King's part to legislate by sovereign authority without counsel or con- sent;' (2) it contains the idea of connection between the redress of grievances and the granting of supplies, in its last clause, which is to the effect that the grant of a fifteenth is made in return for the concession of the Charter. Henry's misgovernment at home and abroad induced the barons to make several attempts at reform. They demanded the dismissal of the king's foreign favourites and the right to choose the Chancellor, Justiciar, and Treasurer, who were not to be dismissed without their consent. For a long time their efforts met with little success, but at last in 1258 they Provisions forced Henry to submit to the Provisions of Oxford. A i2 5 8. X ° r Committee of Reform, consisting of twelve baronial and twelve royal nominees, drew up the following scheme of government. Fifteen Counsellors were to act as the permanent advisers of the Crown, and were to be chosen as follows : the twelve members of the Original twenty-four, who had been nominated by the Barons, chose two of the nominees of the Crown (the Earl of Warwick, and John Mansel), the twelve chosen by the King selected two of the Baronial twelve (Roger 1 Stubbs, ii. 37. THE CROWN. 17 Earl Marshal, and Hugh Bigod) ; by these four the Council of fifteen was to be elected. Two other Committees were also to be appointed, one of twelve members, nominated by the Barons, to consult with the King's Council at the three annual Parliaments, and one of twenty-four members, representing the nation, to consider financial matters in general, and aids to the King in particular. The offices of Justiciar, Chancellor and Treasurer were restored, ' parlemenz ' were to meet three times a year, and the power of the sheriffs was curtailed 1 . The new Constitution practically abolished the monarchy, and put the government of the country into the hands of the greater barons. The King was superseded by a narrow oligarchy, and the Great Council by small Baronial Committees. The Provisions of Westminster (1259) redressed the Provisions of special grievances of which the Barons complained, but the 1259. mu reconciliation was only temporary. Both sides submitted to the arbitration of Lewis of France, and by the Mise of Amiens Mise of (1264) the Provisions of Oxford were annulled, and the miens » 12 4 power of the King to appoint his own ministers was fully recognised. The Barons refused to accept the award, and appealed to arms. Henry was defeated at Lewes, and the Mise of Lewes (1264) confirmed the Provisions of Oxford. Mise of A Parliament which included representative knights from the shire, met in the same year and drew up a new scheme of government. Three electors nominated by the Barons were tb choose a Council of nine members, by whose advice the King was to act. If the communitas praelatorum et baronum agreed to remove one of these electors, the King must meet their wishes and appoint their nominee 2 . This constitution extended the limits of Parliament and marks an advance on the scheme of 1258. The ultimate source of authority is now the communitas praelatorum et baronum, strengthened by the admission of the knights of the shire to 1 It is noteworthy that no attempt was made to replace those clauses of the Great Charter which were omitted in the re-issue of 1216. a Sel. Charters, 413. i8 CHAPTER I. Parliament Qf 1265. Dictum de Kenjlworth 1266. Edward I. Confirmatio Cartarum 1297. Parliament. In 1265, Simon de Montfort called his famous Parliament, and for the first time in English history, repre- sentatives from the towns and representatives from the shires sat together in the central assembly. In the same year war broke out anew, but though the royal party was victorious, the Dictum de Kenilworth (1266) declared that the King must keep the Charters, and the Parliament of Marlborough (1267) 're-enacted the provisions of 1259/ and though leaving in the hands of the Crown the appointment of ministers and the election of sheriffs ' conceded almost all that had been asked for in the Parliament of 1258 V The reign of Edward I is marked by the admission of the Commons to Parliament (p. 13.1)- and by the partial surrender on the part of the Crown of its claims to arbitrary taxation. In 1297 Humphrey Bohun, Earl of Hereford, Roger Bigod, Earl of Norfolk, and Archbishop Winchelsey, representing the baronial and cleiical interests, extorted from Edward the Confirmatio Cartarum. It confirmed the Great Charter and the Charter of the Forest, and provided that for the future the King should not exact, ' la male toute des leines 2 / or take l tieu manere des aides, mises, ne prises' as he had previously taken, except ' par commun assent de tut le roiaume, sauve les auncienes aides et prises dues et custumees V The Charter expressly recognised the Magna or Antigua Cusluma of 1275 (p. 191), and made no attempt to regulate the levy of Tallage (p. 1 88). Edward I only considered himself bound to observe the letter of the law, and accordingly levied a tallage in 1304, and by negotiations with the foreign merchants obtained an increase in the duties on exported wool and other commodities, which was known as the Parva or Nova Custuma (p. 191). The Confirmatio Cartarum was in French : there is another document in Latin, differing in one or two im- portant points from the Confirmatio (which does not contain 1 Stubbs, ii. 97. 2 The maletote of wool was a duty of 40 shillings on every sack of wool. 3 Sel. Charters, 495. THE CROWN. 19 the word tallage), and known as the Statute de tallagio non concedendo. 'It is/ says Dr. Gniest 1 , 'apparently the in- Detaiiagio complete draft laid before the regent for his ratification, and "edendo, not confirmed by any official document/ It is this Latin I297 ' form that is referred to as a Statute by the Petition of Right, 1628, and held to be so by the Judges, 1637. In March, 1299, Edward was obliged to confirm the Charters of the Forests ; a reservation, ' Salvo jure corona nostra,' evoked such hostility that a fresh confirmation, with the omission of the obnoxious words, was made two months later. In Anicuii March, 1300, were issued the Articuli Super Cartas, a supple- i3<£ r ment to the Confirmatio Cartarum, dealing with certain abuses, such as purveyance, ordering the appointment of Commissioners to inquire into the Administration of the Forests, and into infringements of the Charters, though the rights of the prerogative were reserved; and making various legal reforms. The Charters were finally confirmed Final Con- by Edward in return for a money grant, at the Parliament 1301. of Lincoln, 1301 2 . Edward II, the only despicable Plantagenet, drew upon Edward 11. himself, in 1309, the necessity of assenting to eleven articles for the redress of abuses of purveyance, excessive imposts, delay of justice, depreciation of the coinage, and the like. In 1 3 10, by the forced consent of the King, twenty-one Lords Ordainers were appointed to frame ordinances for The Lords 1 the advantage of the Church, the King, and the people/ 1310. The composition of this body was as follows : — two earls were elected by the bishops, two bishops by the earls ; the four thus chosen elected two barons, and these six chose fifteen others. Six Ordinances were issued, August 13 10, Ordinances, and supplemented in 131 1 by thirty-five others. The X31U Ordainers tried to remedy abuses by restraining the royal power and enforcing the claim of the Barons to control the 1 Const. Hist. ii. 9, note. 2 In spite of these concessions Edward I was a very powerful King. But, as Bishop Stubbs remarks (Const. Hist. ii. 291), it was the royal power in and through the united nation, not as against it, that he designed to strengthen. C 2 20 CHAPTER I. Declaration of 132a. Edward III. Tallage. Purveyance. appointment of ministers. Gaveston, the royal favourite, was exiled, new customs and fresh forest usurpations were abolished, and the Charters were confirmed. The privileges of the Church were maintained, Parliaments were to meet once or twice every year, and the King was forbidden to make war, leave the realm, or appoint the great officers of state without the counsel and consent of the baronage in parlia- ment. No provision was made for the action of the third estate. ' The privileges asserted for the nation were to be exercised by the Baronage/ • Though renewed in 13 16, the Ordinances were repealed in 1322 by the influence of the Despensers 1 as prejudicial to the royal power, and the important constitutional principle was laid down that ' matters which are to 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 consent of the prelates ; earls, and barons, and the commonalty of the realm" 1 ! From this time the kingdom was virtually ruled by the Despensers, until a national com- bination, with the self-seeking Isabella at its head, deposed the King, January 1327 (p. 13). The reign of Edward III is very important in the history of constitutional progress. Although the enthusiasm aroused by the French war sometimes enabled the King to resort to illegal taxation, and even, in 1341, to annul a Statute to which he had previously given his consent, Parliament suc- ceeded in placing important restrictions on the royal power. The Act of 1340 decreed that no common aid or charge should be laid on the nation except by the common consent of the prelates, earls, barons and commons in Parliament, and in 1352 the king declared that the levy of Tallage should cease 8 . Purveyance (p. 179) was abolished in 1362, except for the personal wants of the King and Queen, and the Act of 1 From Dispensator, a steward. 2 Stubbs, ii. 352. 8 Edward III was very unwilling to relinquish his claim to levy this impost, and in 1377 declared that ■ great necessity ' might still compel him to exact it. THE CROWN. 21 iq^2 laid down that no one should be forced to furnish Commissions *>o jii of Array. armed men to the King, unless bound to do so by the con- ditions of his tenure. The Statute of Staples (1353) legalised Customs. the Nova Custuma (p. 191), and the irregular duties levied on imports were converted into a Parliamentary grant (1373), and thenceforth became a part of the royal revenue under the names of Tunnage and Poundage (p. 192). Parliament asserted its complete control over this branch of taxation by the Statutes of 1362 and 137 1, which enacted that neither merchants nor any other body should set any subsidy or charge on wool without Parliamentary consent \ In addition to securing the control of national taxation, Parliament wished to determine the way in which its grants should be applied. The royal consent to the Appropriation Appropri- of Supply (p. 115) was easily gained, but the Audit of Accounts Supply. was more difficult to obtain. Though frequently demanded Audit, in the reign of Edward III, and yielded in principle in 1379 2 , it was not clearly established till' 1 406 3 . The right of the Commons to deliberate on questions of Administra- peace and war, and to interfere with the details of the ad- ministration was clearly recognised in this reign. In order to secure national sympathy for his foreign policy, Edward frequently appealed to the Commons for advice, but they were by no means eager to assume the position of advisers, and 'seem to have been very cautious in admitting that peace and war were within their province at all V However, they attacked domestic abuses with great vigour. Attempts were made to secure the responsibility of Ministers to Parliament (1341), to limit the expenses of the royal house- 1 However, in spite of the legislation of Edward Ill's reign, ' the entire prevention of financial overreaching on the part of the Crown was not attained for many centuries.' Stubbs, ii. 517. 2 Stubbs, ii. 567. 3 lb. iii. 54. 4 In the following reign they were extremely reluctant to commit themselves. In 1384, when forced to give a direct answer on the question of peace or war, they agreed to reply in the same terms as the prelates and magnates, but protested that they should not henceforth be charged as counsellors in this case, nor be understood to advise either one way or the other. Stubbs, ii. 602-3. 22 CHAPTER I. Impeach- ment. Richard II. The Consti- tutional ex- periment of the Lancas- trian Kings. hold and to restrain the alienation of crown lands: while the constitutional principle that redress precedes supply was foreshadowed in the events of 1339. In judicial matters, two important privileges were won. The Commons asserted their right to impeach (p. 150) the Ministers of the Crown (1376) and the Lords made good their claim to trial by their peers alone (1341). During the minority of Richard II, the position of the Commons was very powerful. They frequently exercised the rights acquired in the previous reign, impeached the King's ministers (1386) interfered with the royal household, and in 1377 obtained the appointment of two treasurers to super- intend the disbursement of the subsidy for the French war. In 1389 Richard took the reins of government into his own hands, and for eight years ruled as a constitutional King. The Commons however grew more subservient, and in 1390 and 1 39 1 'it was declared on the petition of the Lords and Commons, that the King's prerogative was unaffected by the legislation of his reign or those of his progenitors V Gradually the royal policy changed. Richard abandoned his con- stitutional attitude (1397) and by a series of despotic measures made himself absolute. An obsequious Parliament granted him a life revenue and delegated its authority to a Committee of eighteen. The King's arbitrary rule and his impolitic conduct toward Henry of Lancaster cost him his throne. In 1399 he was deposed by Parliament on thirty-three counts, accusing him of injustice to individuals, infractions of the constitution, abuse of the prerogative, illegal taxation, and the assumption of legisla- tive powers 2 . Henry of Lancaster was chosen to succeed him. The Lancastrian Kings made an honest attempt to govern England by constitutional methods. Parliament became the direct instrument of government, and harmony was established between the legislative and executive, by allowing the two 1 Stubbs, ii. 486. * Richard had said ' that his laws were in his own mouth and often in his own breast, and that he alone could change and frame the laws of the kingdom.' Stubbs, ii. 505. THE CROWN. 23 Houses to nominate the members of the Royal Council 1 (p. 38). The Commons enjoyed the rights they had previously acquired and gained new powers and privileges. In 1 40 1 they claimed that redress should precede supply, and Powers of • 1 ,7. r , , • ..,,,,. the House of though the King refused their request, it is probable that it was Commons. really secured by the practice of delaying the grant till the last day of the session 2 . Their right to freedom of deliberation was fully recognised in the same year. In 1406 they definitely established their right to insist on an audit of the royal accounts, and in 1407 to originate money grants. In 1406, 1 4 10, and 1430, Acts were passed to regulate the county elections, and in 1429 Members of Parliament were allowed freedom from arrest. An important Act, passed in 1414, declared that statutes should follow the wording of petitions on which they were based, and in the reign of Henry VI the practice arose of presenting Bills drawn as statutes, in place of petitions. Parliament was consulted on matters of foreign policy, and freely exercised its right to control the administration and inquire into public abuses. Sir John Fortescue, in his De Laudibus Legum A nglicB and Fortescue's . ... testimony. De Natura Legis Naturce, bears witness to the constitutional nature of the Lancastrian rule. England is a dominium regale et politicum, her monarch a rex polilicus, unable to alter the laws or lay impositions on his people without their consent : ' the King exists for the sake of the kingdom, not the kingdom for the sake of the King V But this great ' constitutional experiment • proved a failure. Failure of The selfishness of the great nobles, the incapacity of trian rule! 5 " Henry VI, and the prejudices and political blindness of the Commons brought about its fall. The poverty and weak- ness of the Crown, the inability of the executive to enforce order in the country districts, and the factious rivalries of the nobles overthrew the House of Lancaster, and prepared the way for the New Monarchy. The rule of the Yorkist and Tudor sovereigns has been The New styled the *' New Monarchy ' because their reigns are marked 1 Const. Essays, 235. a Stubbs, iii. 263. 3 lb. 241. 24 CHAPTER I. by a great change in the character of the kingship. Weary of anarchy, all men were ready to welcome a government which would repress the lawless elements of society, and by giving protection to life and property render commercial development possible. The Wars of the Roses had swept away the old nobility, the Commons were not strong enough to stand alone, and the Church, conscious of being out of touch with the nation, sought safety in alliance with the Crown. Accordingly the Tudors were able to override the restrictions on the royal power, and to ignore the spirit of the constitution, though conforming to the letter of the law. The government of the country was carried on by the King and his Council, and Parliament became little more than a con- venient machine for the expression of the royal wishes. Edward IV. The altered character of the monarchy was seen during the reign of Edward IV. Parliament only met at considerable intervals, and did not pass a single remedial statute. Fines and forfeitures rendered the King wealthy, and when in need of money he had recourse to Benevolences (p. 200). These were abolished by Richard III, but he was nevertheless compelled to resort to them to supply his financial wants. At the accession cf Henry VII there were certain definite checks on the power of the King, which are thus described by Mr. Hallam l :— 1 . No new tax could be levied without consent 0/ Parliament. 2. No new law could be made without the same consent. 3. No committal to prison could take place without a legal warrant specifying the offence ; and the trial must be speedy. 4. Criminal charges, and questions of fact in civil rights, were decided by a jury. 5. The Kings officers were held responsible to the nation, and could not plead in defence the King's order (p. 46). In spite of these checks, the power of the Crown was much increased under the Tudors, owing to the strong character of the sovereigns, the extermination of most of the baronial party, the increase of the Crown possessions from the for- 1 Const. Hist. i. 2. Checks on the royal power. Temp. Henry VII The Tudors. THE CROWN. 25 feitures during the Wars of the Roses, and the action of the Courts of Star Chamber and High Commission. Henry VII Henry vn. made many illegal exactions by Benevolences, and excessive fines. During his son's reign Parliament was most sub- servient to the royal will. By 31 Hen. VIII, c. 8 (1539), the Henry vm. King's proclamations acquired the force of law (p. 170); and by 28 Hen. VIII, c. 17 (1536), any future King who had reached the age of twenty-four years was empowered to rescind any Statutes passed since his accession. Henry's power was also greatly increased by his position as head of the Church of England, whilst his coffers were filled with the spoils of the monasteries. However, in spile of his despotism, he ruled according to law, and, as Lord Bolingbroke remarks, 1 by applying to his Parliaments for the extraordinary powers which he exercised, owned sufficiently that they did not belong of right to the Crown.' Under Mary, forced loans Mary, were exacted, and Proclamations made, whilst an Act was passed declaring the prerogatives of a Queen identical with those of a King. Parliament was also controlled by the creation of rotten boroughs. Elizabeth denied all inde- Elizabeth pendenceto Parliament (p. 101), declaring that she would not have her prerogative ' argued nor brought in question/ She was practically supreme, but, although persons were occasion- ally committed to prison and unjustly tried, she ruled on the whole wisely, and without any great violation of constitutional liberty ; and Hooker, writing towards the close of her reign, Hooker's says of the royal power, ' Lex facit regem ; the King's grant royal power of any favour made contrary to the law is void ; what power the King hath he hath it by law, the bounds and limits of it are known/ During the later years of the reign, Parliament began to reassert its power, and in 1601 won a great victory on the subject of monopolies (p. 201). With the Stuarts, however, the doctrines of Divine Right 1 Divine and passive obedience began to gather strength. James I, from his natural inclination, and from the defect in his 1 For an essay on this subject see Gairdner and Spedding's Studies in English History. 26 CHAPTER I. parliamentary title, held that hereditary right was expressly sanctioned by heaven; that the King was in consequence absolute, his rights inviolable, and the constitutional limita- tions of the prerogative, as Lord Macaulay says, ' merely concessions which the sovereign had freely made, and might at his pleasure resume/ This doctrine was unknown in the earlier stages of English history, when succession in accord- ance with rules of primogeniture had been by no means universal. The theory of Divine Right, as promulgated by James I, was warmly taken up by the King's party, and by the high-churchmen, who aimed at increasing the power of the Crown, and gaining its support for themselves. By the Canons of 1606 the necessity of passive obedience was Dr. Coweii. insisted on ; in Dr. Cornell's 'Interpreter,' published in 1607, the doctrine was so strongly upheld as to give great offence to Parliament, and to compel James to order the suppression of the book. In 1628. Dr. Mainwaring was impeached for preaching in favour of absolutism, and was heavily fined; as a reward, the King made him Bishop of St. David's. In the reign of Charles II, a treatise was published by Sir Robert Filmer, the advocate of active obedience, in which he main- tained that Kings are absolute by divine right, ' and are not answerable to human authority/ These ideas were taken up by the Tory party, and especially by the University of Oxford, but gradually disappeared after the Revolution of 1688, and in 1701 an oath was imposed on the clergy and certain officials by Parliament that William III was ' the lawful and rightful King/ Holding these ideas, the Stuarts claimed an unlimited prerogative, and at once attempted to govern arbitrarily and without Parliament ; they were aided by the Court of Star Subserviency Chamber (p. 52) and by the subserviency of the judges, e.g. judges. in Bate's case (p. 198), and the case of Ship-money (p. 199). In 16 10, however, the judges declared that the King could not create any offence by proclamation, and had no pre- rogative beyond that which the law of the land permitted him to enjoy. In 161 6, on the judges refusing to delay the Dr. Main- waring. Sir Robert Filmer. Stuart Kings. THE CROWN. 27 administration of justice in the case of Commendams (App. B.), in accordance with James' order, they were sent for by the King, and compelled to ask pardon on their knees, promising amendment in the future. Coke alone attempted to vindicate their action, and was in consequence dismissed from the Chief Justiceship. From this time, James I was absolute in Janes 1. the Law Courts, and he informed his Parliament that ■ it was sedition to require what a King could do by virtue of his pre- rogative/ His hatred of the Puritans and Non-conformists, whom he regarded as subversive of monarchy, sprang also from his theory of absolutism. He was always needy, and always extortionate ; proclamations were rife, the Dispensing power was freely used (p. 171 ), and money was illegally raised by forced loans, benevolences, monopolies, and the sale of honours (p. 178). Charles I, following in his father's steps, and attempting Charles 1. to rule without Parliament, was always in want of money, which had to be obtained illegally. In 1627, the liberty of the subject was infringed by the imprisonment of Sir Thomas Darnel's Darnel, and four others, for refusing to contribute to a general loan; they sued out their writs of habeas corpus (p. 241) ; in reply, the Warden of the Fleet asserted that they were im- prisoned by the special command of the King ; and Sir Nicholas Hyde, chief justice, gave judgment for the Crown on the point. The prisoners were shortly afterwards released by the King's order, but the country had been alarmed. In 1628, Charles was obliged to assent to the Petition of Right, and from 1629 to 1640 ruled without a Parliament, having re- course to various means of raising money, e.g. the exaction Charles's of tunnage and poundage on his own authority, sale of monopolies, exac lons ' revival of the forest laws, distraint of knighthood, ship-money, and the like. Many abuses, such as the Star Chamber, were swep taway by the Long Parliament; and in 1660, Charles II Charles 11. surrendered the feudal rights in return for a fixed annual sum. Towards the end of his reign, Charles, by the aid of the judges, managed to increase the power of the crown by confiscating the charters of the boroughs (p. 269), and only 28 CHAPTER I. restoring them on conditions which rendered the return of court nominees at the Parliamentary Elections certain. James ii. James II at once began to display despotic tendencies ; in 1685, he levied customs by Proclamation before they had been granted by Parliament; he produced a judicial decision in favour of the Dispensing power (p. 171), and by various attempts to subvert the constitution, lost the throne. Bin of By the Bill of Rights, 1689, a lasting check was put upon 1689. ' the abuse of royal power, and the change which had been taking place in the popular conception of sovereignty was emphasised; respect was claimed for Parliamentary privileges; the exercise of the Suspending and Dispensing power without consent of Parliament, the levying of money by pretence of prerogative without a Parliamentary grant, and the main- tenance of a standing army without Parliamentary authority were declared illegal ' (App. A). This check was strengthened Act of Settle- by the Act of Settlement, 1701, which provided against pack- en , 1701. .^ p ar jj amen j- w j t jj placemen, declared the royal pardon invalid in cases of impeachment, and secured the indepen- dence of the judges, who were not to be removed from their office except upon the address of both Houses of Parliament. George i. George I and George II had little personal influence and George in. little national sympathy, but George III, who sought to rule as a national sovereign, made such progress towards re- establishing the influence of the Crown, by his dictation to Lord North, and his attempts to be his own unadvised minister, that in 1780, Mr. Dunning moved, and passed, in the House of Commons, the famous resolution that that influence ' had increased, was increasing, and ought to be diminished.' Although Parliamentary Government has existed since the Revolution of 1688, the Crown has retained much of its influence, owing to its position as the head of society, to its 1 ' In opposition to the doctrine that the Crown was a piece of real property which could never be without an owner, it (the Bill of Rights) declares the throne vacant. In opposition to the doctrine that the suc- cession to the throne was a matter of divine indefeasible hereditary right, it regulates that succession. In opposition to the doctrine of passive obedience, it affixes conditions to the tenure of the Crown.' — Anson, i. 24. THE CROWN. 29 powers of patronage, and to that love of monarchy which is the characteristic of the English people. The sovereign Legal pre- , . r , • , rogativesof has at present many legal prerogatives, most 01 which are the Crown, practically vested in the ministry, such as the power of sum- moning, proroguing, and dissolving Parliament at pleasure, of refusing assent to any Bill (practically obsolete, p. 169), of making peace or war, of dealing with foreign nations by making treaties, and receiving and sending ambassadors, of pardoning offenders after conviction, and of creating peers \ Many of the feudal and fiscal prerogatives of the Crown, such as purveyance, coining, regulation of markets, and the like, have been surrendered. The sovereign is, in fact, the head of the Church, the army, the law ; is the fountain of justice, mercy, and honour; and has, formally at any rate, the supreme executive power, as well as a co-ordinate legislative power, with the Houses of Lords and Commons. Regencies, which are a natural sequence of hereditary Regencies, kingship, may be rendered necessary, (1) by the infancy, (2) illness ; (3) madness; (4) absence of the King. Thus William I, during his absence in Normandy in 1067, left as regents his half-brother, Odo, Earl of Kent, and William Fitz-Osbern, Earl of Hereford. The office of regent in early times usually fell to the Justiciar in the event of the sovereign's absence. Instances of regencies in English history are — (1) In 1190 Richard 1 before leaving England appointed the Chancellor, William Longchamp, Guardian of the kingdom. (2) 1 2 16. Owing to the minority of Henry III the Barons chose William Marshall, Earl of Pembroke, rector regis et regni) with him were associated the legate Gualo, and Peter des Roches. 1 'No modern lawyer,' says Professor Dicey (Law of the Const, p. 61), 'would maintain that these powers, or any other branch of royal authority, could not be regulated or abolished by Act of Parliament, or, what is the same thing, that the judges might legally treat as invalid a statute, say, regulating the mode in which treaties are to be made, or making the assent of the Houses of Parliament necessary to the validity of a treaty.' $0 CHAPTER I. (3) 1272. Edward being abroad at the death of Henry III, the Council at once assumed the functions of Regency, the government being carried on by Walter Giffard, Archbishop of York, assisted by Roger Mortimer, and Robert Burnell (afterwards Bishop of Bath and Wells) 1 . (4) 1297. Edward I, on joining his army in Flanders, left his son Prince Edward as regent, together with an assisting Council of Regency. By them the Confirmatio Cartarum was provisionally accepted, and sent to the King for ratifi- cation (p. 18). (5) 1327. At the accession of Edward III, a minor, Parliament appointed a regency of four bishops, four earls, and six barons, headed by Henry, Earl of Lancaster. (6) 1377. Richard II was a minor, and though no regent was appointed, a council of twelve was named by the Barons, to aid the Chancellor and Treasurer, and was frequently modified by Parliament, which had the real control of affairs. (7) 1422. Henry V, at his death, named the Duke of Gloucester regent ; subsequently, however, the peers, ' having searched for precedents, found that he had no such claim on the ground of relationship, and that the late King could not without the assent of the estates, dispose of the government after his death 2 .' Accordingly Parliament appointed the Duke of Bedford, 'or, in his absence beyond the sea, the Duke of Gloucester, to be the protector and defender of the kingdom and English Church, and the King's chief counsellor/ Sixteen counsellors were subsequently added by Parliament, and the Lords declared that the Protector's power was limited to defending the realm against internal and external foes. Three inferences may be drawn from the proceedings of this year : — (1) That the King has no power to nominate a regent during the minority of his successor. (2) That neither the Heir apparent, nor any other person, 1 Stubbs, ii. 104. a lb. iii. 97. THE CROWN. 31 is entitled to exercise the royal prerogative during the infancy of the King. (3) That Parliament alone has right of nominating a regent, and of determining his powers 1 . (8) 1454. Owing to Henry's insanity, the Peers chose Richard, Duke of York, Protector. Parliament confirmed the appointment. The King recovered and dismissed him. (9) Nov. 1455. Henry had a relapse, and the Duke of York was again appointed as his lieutenant. (10) 1483. On the accession of Edward V, Richard Duke of Gloucester, was appointed Protector by the Council. (11) 1547. 1° accordance with a statute of 1536 (28 Hen. VIII, c. 7), modified in 1544, sixteen executors were appointed as a regency during the minority of Edward VI : they chose the Earl of Hertford as Protector of the kingdom. (12) 1751. A Regency Act, passed on the death of Frederick, Prince of Wales, made the Princess Dowager of Wales regent in the event of any of her children succeeding under the age of eighteen ; the Act also nominated a council of regency, with power to the King to add four more. (13) 1765. On George III suffering from a severe illness, a Bill was passed appointing a council of regency, and de- fining their duties ; the King was empowered to nominate as regent either the Queen, the Princess Dowager of Wales, or any descendant of George II ; the name of the Princess was only inserted after considerable opposition from the Ministers, especially Lords Halifax and Sandwich. (14) 1788. George III became insane, and Fox upheld the right of the Prince of Wales to be regent; Pitt main- tained the right of Parliament to make the appointment. It was determined to create a Regency by statute, 'but a statute needed the royal assent, the King could not give the royal assent in person, nor could he authorize by sign manual the affixing of the Great Seal to a Commission, which should enable others to give his assent/ At last 'the two Houses were invited by Ministers to concur in 1 Taswell-Langmead, 371. Hallam, Middle Ages, iii. 189. 32 CHAPTER I. directing the Chancellor to put the Great Seal to a Com- mission for giving assent to the Regency Bill when it had passed the two Houses 1 / The King recovered before the Bill was carried. (15) 1810. George III again became insane, and the Prince of Wales was appointed regent ; the Bill was passed June, t8ii, and the royal assent given by commission on a resolution of Parliament. The regent's power was limited; he was not, for twelve months, to create peers, nor was he to grant offices and pensions, except during pleasure. (16) 1 830- 1. In the event of the Princess Victoria coming to the throne under the age of eighteen, the Duchess of Kent was to be regent. (17) 1837. Provision was made for the carrying on of the government by Lords Justices, in the event of the , Queen's decease whilst the heir (the King of Hanover) was abroad. (18) 1840. In the event of a child of the Queen suc- ceeding, under the age of eighteen, the Prince Consort was to be regent. Allegiance. Allegiance, 2 or * the true and faithful obedience of the subject due to the sovereign/ is of two kinds : — (1) Natural, i.e. the allegiance due from persons born in the dominions of the sovereign : formerly this was perpetual, but by the Naturalisation Act of 1870 (33 & 34 Vic. c. 14), a British-born subject may renounce his allegiance by be- coming a naturalised subject of a foreign power. (2) Local, due from aliens during the time they are resident only. Legislation In 1581 (23 Eliz. c. 1), it v. as made high treason to attempt 1 'This grotesque and dangerous fiction.' says Sir W. Anson (ii. 77), ' would seem to enable two branches of the legislature to dispense with the concurrence of the third.' 2 ' Fealty is the simple undertaking to be faithful. . . . Homage is the undertaking to be faithful in respect of land, binding the vassal to the lord of whom he holds lands. Allegiance is the duty, which every man owed, to be faithful to the head of the nation, land or no land. But, as the King was supreme landowner and judge, the idea of homage and fealty were merged in Allegiance.' Anson, ii. 68. ject. THE CROWN. 33 to withdraw subjects from their allegiance ; by 7 Anne c. 5, 1709, the children of subjects born abroad were to be deemed natural-born (see Oath of Allegiance ', p. 141). Bretwalda {Breotan, to distribute, i.e. 'widely ruling/ Bretwaidas. with a sense of undefined superiority 1 ), was a name given in Anglo-Saxon times to Kings who had acquired some sort of supremacy over their neighbours ; the nature of this supremacy is doubtful, but the title probably indicates, as Dr. Freeman says, early attempts at uniting the whole of England under one sovereign, and was assumed by a King in virtue of personal or territorial power. That the power, which probably differed at various times, was definite, is shown by Ethelbert of Kent granting to St. Augustine a safe conduct, when on his way to hold a Synod in some far distant part 2 . The words used by Bede, in describing the circumstance, are ' Adjutorio usus jEdilbercii regis! Queen Consort (Cwen, the wife), at first occupied a high Queen Con- position, owing to the respect in which all Teutonic nations held their women ; though after the murder of her husband, Brihtric of Wessex, by Edburga (802), the title of Queen was abolished in Wessex, that of nlafdige, or lady, being substi- tuted for it, with a great diminution of privileges. Queen Consorts have usually been crowned from the earliest times, though the ceremony was omitted in the case of Queen Caroline, wife of George IV. They had various privileges, such as protection by the Statute of Treason, the possession of cities as private property (e. g. Exeter belonged to Emma, 1 Sir F. Palgrave refers the title to a Roman origin, and to the idea of Imperialism. Mr. Kemble says the Bretwalda was an elected head, while Dr. Lingard tries to establish a regular line of Bretwaidas. There were eight altogether — Ella of Sussex, arc. 477-510, Bretwalda, 492. Ceawlin of Wessex, 560-593 „ circ. 584. Ethelbert of Kent, circ. 565-616 „ circ. 589. Redwald ot East Anglia, circ. 599-620 ,, circ. 617 Edwin of Northumbria, 617-633 ,, 624. Oswald „ 633-642. Oswy „ 642-670. Egbert of Wessex (first rex Anglorum), 802-839 „ 827. 3 See Gneist, English Const., i. 41 note. 34 CHAPTER I. Queen Gold, wife of Ethelred II), and the right to Queen Gold, or a mark of gold for every hundred marks of silver paid to the King ; this due, mentioned in Domesday as Gersumma regincB, ap- pears to have been frequently paid temp. Edward IV, and was claimed as late as the time of Charles I, by Henrietta Maria, who, however, surrendered it in consideration of a sum of money, in 1635. Queen Reg- The Queen Regnant enjoys exactly the same preroga- tives and privileges as a King ; this was settled by a statute of Mary, the first Queen Regnant of England, April, 1554 (1 Mar. sess. 3, c. 1), which provides that 'the regal power of the realm is in the Queen's Majesty as fully and absolutely as ever it was in any King/ CHAPTER II. THE COUNCIL AND COURTS. Origin. In Anglo-Saxon times there existed a body of King's Coun advisers of the Crown distinct from the general assembly of the Wt'/an; these advisers were summoned by the king and were generally chosen from the officers of his household (e.g. the staller, the bower thegn, the dish thegn, and the horse thegn). History to Henry III. hSI^iii. After the Norman Conquest, this body of counsellors con- tinued to exist as a committee of the national council, the Magnum Commune Concilium, and was known as the Con- tinual Council (Concilium ordinarium), at first so closely connected with the national council as to be hardly dis- tinguishable from it. The King's Council, the Aula Regis or Curia Regis gradually assumed a distinct position owing to the continuity of its existence, and to its members being avail- able for consultation at any moment, instead of at only three stated periods in the year, as in the case of the national council. Those members were at this time the permanent officials of the state and household, whose necessary residence at and about the court, by reason of their office, facilitated consultation, i.e. the Justiciar, the Treasurer, the Chancellor, the Marshal, the Steward, the Chamberlain, the Constable, the Butler (pp. 225 sq.); sometimes, also, minor officials, such as the Chancellor of the Exchequer, and the King's Sergeant were present; while certain bishops and barons, in addition to the two archbishops, who sat in right of their position, were occasionally summoned. Practically up to the time of the minority of Henry III, the personnel of the King's Council varied at the will of the sovereign. d 2 36 CHAPTER II. Powers. The powers of this Curia Regis 1 , executive, legislative, and judicial, were immense, and co-extensive with those of the King, whose agent it was. In its judicial and financial aspect, it gradually developes into the Curia Regis in its third sense, and into the Courts of Common Law temp. Henry III. In 1 1 78, Henry II created the Council a Court of Appeal from the decisions of the judges. From this time until the reign of Henry III, when the Council assumes a more important position, owing to its action as a Council of Regency during the minority, the King's Councillors appear more in the light of personal, than of official advisers; the history of this body is obscure, and its position barely recognised. Dr. Gneist's opinion is that there was no permanent royal Council until Henry III, ' when a government Council was first formed for the discharge of the whole business of the State.' His idea is that ' the existence of a properly consti- tuted Concilium ordinarium f or " Select Council," is assumed/ from the fact of the King transacting ' the current business of government with a small number of State officials V The Council from Henry III to Henry VI. History from History. During the minority of Henry III, the royal Henry III to < ° ... . Henry vi. Council increased much in importance ; its development continued under Edward I, and it tended, as was natural in that age of definition, to become a body totally distinct from the courts of law, and from Parliament, with which it came into frequent collision. By the reign of Richard II, in which the first minutes of the Council appear (1386), it had assumed a fairly permanent form, though the various stages in its growth cannot be accurately distinguished. In 1301, the King's Councillors are first mentioned by name, and during the same period an oath of secrecy and fidelity was 1 It should be carefully borne in mind that the expression Curia Regis is used to denote — 1. The Commune Concilium. 2. The Concilium Ordinarium, or King's Council, as here. 3. The Judicial Committee of the Council, a later and narrower sense. 4. The Court of King's Bench. a Const. Hist. i. 270, note. THE COUNCIL AND COURTS. 37 made incumbent on all members. During the Lancastrian period, and especially in the reign of Henry VI, when it practically performed the functions of a Council of regency, the Council was at the zenith of its power. Composition. Composition. Temp. Henry III and Edward I. The State and House- hold officers, the two archbishops by prescriptive right, the judges, certain prelates, nobles, and other persons summoned as Councillors 1 . 'When all these were called together it was a full Council, but, where the business was of a more con- tracted nature, those only who were fittest to advise were summoned, the chancellor and judges for matters of law, the officers of State for what concerned the revenue or house- hold 2 ; ' officials of inferior position, such as clerks, attended on special occasions when their special knowledge might be of use. Councillors temp. Edward I were required to take an oath of secrecy and fidelity, and to swear ' to do justice honestly and unsparingly.' Under Richard II, the oath was to keep secrecy, and to advise the King to the best of their ability, whilst by degrees the Council became a sworn and salaried body of advisers, as distinguished from mere officials. Their proceedings were regulated by rules, passed at different times, from the reign of Edward I, both in Parliament and in the Council itself. In 1387, Archbishop Courtenay formally claimed ' for himself and his successors in office, the right of assisting at all the sittings of the royal Council, be they general, special, or secret 3 / In 1404, at the request of Parlia- ment, Henry IV appointed as his Council the Duke of York, the Earls of Somerset, and Westmoreland, six bishops, six barons, six knights, and another commoner ; he named somewhat similar councils in the same way, 1406, and 14 10. The Council appointed by Parliament at the accession of Henry VI, was composed of the Protector (Bedford), the 1 'It is still uncertain,' says Dr. Stubbs (Const. Hist. ii. 258), * whether the baronage generally were not, if they chose to attend, members ex- officio.' 2 Hallam, Mid. Ages, iii 139. 3 Gneist, i. 403. 38 CHAPTER II. Duke of Gloucester, who presided in the absence of Bedford in Fiance, the Duke of Exeter, Archbishop Chichele, four bishops, five earls, and five barons. In the reigns of Richard II and Henry IV, the King's Councillors held their office for a year, though they appear to have been reappointed as a matter of course, except after misconduct ; shortly after- wards they were appointed for life, but could be removed at the King's pleasure, or at their own request. Relations to Relations of the Council to Parliament. Parliament. During the reign of Henry III, the National Council made several attempts to control the appointment of the great officers of State, and thus restrain the powers of the King's Council. This, however, was only possible under a weak King 1 , but if carried out would have practically made the Concilium Ordinarium a committee of the Commune Concilium, since most of the members of the Royal were already members of the National Council 2 . Under Edward III, it was pro- vided by a statute of 1341, repudiated by the King in the same Nomination year, that ministers were to be nominated in Parliament. In of ministers . . . , ~ . , . . P inPariia- answer to a petition of the Commons in 1377, the chief officials were to be appointed in Parliament, during Richard's minority. Frequent petitions were subsequently presented to the King on the subject, but he refused to listen to them. Henry iv. In 1404, 1406, and 1 4 10, Henry IV nominated the Royal Council in accordance with the wishes of the Commons, and Henry vi. during the minority of Henry VI all appointments to this body were made in Parliament. The latter also endeavoured to control the growing power of the Council, by imposing a stringent oath of office on the members, by the practice of impeaching ministers who acted unconstitutionally (p. 150), and by passing various acts for the regulation of the coun- cillors, e.g. 1406, and 1424. It also claimed the right of 1 E.g. by the Ordinances of 1311, the great offices of State were to be filled up by the King with the counsel and consent of the baronage. Stubbs, ii. 330. 3 In conjunction with the rest of the baronage and excluding the Commons and the minor clergy, the permanent Council sometimes acted under the title of Magnum Concilium. Stubbs, ii 260. THE COUNCIL AND COURTS. 39 fixing the amount of the salaries of the councillors, 1406, and 1431V During the reign of Edward III, frequent Statutes to statutes were passed, at the request of the Commons, to Council, restrain the arbitrary exercise of the Council's power, *.£". 1331, 1352, 1354, I3 62 > x 3 6 3 an d 13 68 (5> 25, 28, 36, 37 & 42 Edw. Ill), and in 1390, a petition was presented by the Commons praying that ' neither the Chancellor, nor the King's Council, after the close of Parliament, may make any ordinance against the common law, or the ancient customs of the land, or the statutes made heretofore, or to be made in this Parliament 2 .' Under the Lancastrian Kings, the relations between the Parliament and the Council were more cordial (e.g. in 1406, the Commons expressed their 'great confidence' in the King's Council), owing to the fact that the Council was appointed and regulated by Parliament. From 1437, however, when Henry VI began to appoint his councillors absolutely, the Council comes into frequent collision with Parliament, which could only effectually attack the King's ministers by impeachment in individual cases (pp. 150 sq.). Powers of the King's Council 3 . Powers. From the time that the royal Council attained a recognised position these were very great, being practically co-ordinate with those of the King, the instrument of whose prerogative it was; whether King or Council was practically supreme, depended on the character of the sovereign ; e.g. Edward I ruled the Council, but the Council ruled Henry VI. (a) Executive*. The Council was the agent of the King Executive. 1 'The archbishops and Cardinal Beaufort had 300 marks, other bishops 200, the treasurer 200, earls 200, barons and bannerets ^100, esquires ^"40.' — Stubbs, iii. 251. * Hallam, Mid. Ages, iii 140; see also Gneist, i. 409. 3 'The King could do nearly every act in his permanent Council of great men which he could perform when surrounded by a larger number of his nobles ; except impose taxes on these nobles themselves.' — Dicey, Privy Council, p. 19. 1 Their work was to counsel and assist the King in the execution of every power of the crown, which was not exercised through the machinery of the common law.' — Stubbs, iii. 252. 4 Its functions 'were primarily executive, and it derived such legis- 40 CHAPTER II. during the minorities of Henry III, Richard II, and Henry VI, and during the absence of Henry V in France ; its executive powers were enormous. It provided funds with which to carry on the administration, regulated trade, exercised special control over foreign merchants and attempted to provide for the maintenance of order. It became, in fact, the wielder of the sovereign power, and under Henry VI was practically independent. Legislative. (3) Legislative. Previous to the formation of a repre- sentative Parliament, the power of legislation was exercised by the King in Council ; e.g. the Statute of Rageman (1276, 4 Edw. T) was 'accorded by our Lord the King and by his Council 1 ,' and in 1283 ' the King by himself and by his Council ordained and established*' the Statute of Acton Burnel (1 1 Edw. I). But the desire to obtain a wider sanction for his measures, sometimes induced the King to make the magnates a party to his legislation. Thus the Statute of Mortmain (1279, 7 Edw. I) was enacted 'by the advice of our Prelates, Earls, Barons, and other of our subjects being of our Council*} an d before issuing the Statute of West- minster II (1285, 13 Edw. I), the King called together l the Prelates, Earls, Barons and his Council at Gloucester^' After the admission of the Third Estate to Parliament the practice arose of enacting laws ' by the assent of the Prelates, Earls, and Barons, and at the request of the Commons V But the Crown in Council still retained the power of legislation, and enactments in which the Commons did not participate were frequently made during the mediaeval period. The Council exercised the power of altering Statutes, either by extending their provisions, or by relaxing them, as in the case of the Statutes of Provisors (p. 282). Deliberative. (c) Deliberative. The Council was a permanent body of lative, political, taxative, and judicial authority as it had, from the person of the King, although many of its members would have a constitutional share of those powers as bishops and barons.' — Stubbs, ii. 259. 1 Statutes of the Realm, i. 44. 2 Ibid. i. 53. 8 Ibid. i. 51. * Ibid. i. 71. 5 This formula was first employed in 1327. THE COUNCIL AND COURTS. 41 advisers, ready to deliberate and give counsel on all political matters submitted to it by the King. It advised on questions of peace and war, and on treaties, and also received and answered numerous petitions, not only from private indi- viduals, but also from the Commons. In 1280, these petitions in council became so numerous that only the most important were reserved for the King and Council, the rest being sorted, and sent to the various courts 1 ; shortly afterwards official 'receivers' of petitions were appointed. (d) Financial. The Council was charged with the duty Financial. of auditing the royal expenditure, and of raising loans, more especially under the Lancastrian Kings, when power was granted them by Parliament to give security up to a certain sum, varying from £20,000 to £100,000. The Council often raised money by arbitrary exactions, especially temp. Richard II ; and occasionally the Lords of the Council themselves lent large sums, or pledged their credit as security. (e) Judicial*. It acted as a Court of Appeal (from n 78), Judical and as a court of first instance for the trial of powerful offenders. After the Curia Regis, or committee of the Council, had developed into the Courts of Common Law (p. 58), the Council lost much of its jurisdiction; it still, however, retained some special judicial powers, which were chiefly exercised for the assistance of the weak or the poor, and for the maintenance of order 3 . It frequently showed a tendency to encroach on the jurisdiction of the common law, and in consequence complaints were made against the arbitrary exercises of the Council's judicial power, and t.Stubbs, ii. 264. 3 The legislative powers of the Privy Council, and the Appellate Jurisdiction of the House of Lords, are due to the fact that originally the members of the Concilium Ordinarium, or judicial body, were also members of the great council, or legislative body, As the House of Lords developed, there grew up a tendency to regard the judges, and other members of the Concilium Ordinarium, who appeared, as ' asses- sors,' and from Edward III they ceased to attend, the Lords retaining the Appellate Jurisdiction (p. 89). 3 Anson, ii. 87. 4* CHAPTER II. The Council from Henry VI. its infringement of the liberty of the subject, during the reigns of Edward III (1331, 1351, i35 2 > !354, i3 62 > and 1368); Richard II (1390, 1391, 1393); Henry IV (1399); Henry V (1416); and Henry VI (1422). During the disturbances of Henry Vl's reign, the cases in which the Council exercised its judicial power were almost always those of the more powerful offenders, who could have been reached by no lesser court. The usual method of proceeding was by summoning the accused parties before the Council. The Council from Henry VI. s History. During the reign of Henry VI, the term Privy Council (concilium secretum or privatum) came into use, and was applied more especially to those paid and sworn councillors, who habitually attended, and took the oath of secrecy. From the time of Henry VIII, up to 1641, ordinary councillors existed side by side with privy councillors. The former possessed no administrative powers and were merely summoned to give legal advice or (perhaps) to sit in the Star Chamber. They are the progenitors of the modern Queen's Council 1 . During the Tudor period, the Council, though all-powerful in the nation, was subordinate to the sovereign, specially temp. Henry VIII, owing to the strength of the Tudor character, the collapse of the nobility after the wars of the Roses, and the introduction of commoners to the council board — a practice begun by Edward IV, and carried on by subsequent Kings 2 . This subserviency continued under the first two Stuarts, who used the Council as the instru- ment of their illegal demands until 1641, when most of its powers were swept away (16 Car. I, c. 10). After the Restoration, in 1660, all councillors were sworn of the Privy Council, and though the custom soon arose that only those 1 Thus, at the present day, a member of the Council does not attend the meetings unless specially summoned. 8 Before the rebellion of 1536, one of the popular grievances was 'that the Privy Council was formed of too many persons of humble birth, whereas at the beginning of the reign it had consisted of a much larger number of nobles.' — Gneist, ii. 178 note. THE COUNCIL AND COURTS. 43 specially summoned should appear, the right of attendance lies with every individual member, e.g. the Dukes of Argyll and Somerset attended without a summons on the death of Anne, 1714. Charles II, finding the numbers of the Council unwieldy, began the practice of governing by a Cabinet (p. 48), and though an attempt at re-organisation was made in 1679, by Sir William Temple (infra), the Council soon ceased to govern the country. The Privy Council was formerly dissolved ipso facto at the King's death, but, by an Act of 1707 (6 Anne, c. 41), continues now to sit for six months after, unless previously dismissed by the successor. Composition. Composition Edward IV introduced commoners into the Council, which, at the close of the reign of Henry VI, had been composed exclusively of magnates. This practice was continued by Henry VII, and the numbers of the councillors, who in former days were about twelve, increased considerably. In 1553, in which year the Council was regulated by Edward VI, the numbers were forty, including two judges, and twenty-two commoners; this body worked in five com- mittees, on the most important of which (the Committee of State of twenty members), sat seven commoners. Under James. I, and Charles I, the members of the Council were chiefly peers. Charles II, finding the large numbers of the Privy Council an impediment to the transac ion of business, entrusted Sir William Temple with the duty of re-organising Temple's the Council, 1679. The Council was to consist of thirty, instead of fifty members, and was to 'represent the different influential bodies of the nation/ Membership was to be conferred on various bishops, judges, and leading members of Parliament, and the whole * Council was to derive weight from its collective property 1 .' It was soon found, however, 1 Dicey, Privy Council, p. 139. 'The scheme,' says Dicey 'was an ingenious attempt to combine the old system of government by a Council with the merits of the modern plan of government by a Cabinet, formed from the principal Parliamentary leaders of the day.' 44 CHAPTER II. Modern Privy Council. Powers to 1 641. that this body was too large for the secrecy desired, whilst the different elements, of which it was composed, made it useless as an executive body, in which unity of action was indispensable. At the present day the Cabinet, and not the Privy Council, is the body which advises the Crown. The latter is now merely a 'formal medium for expressing the royal pleasure in certain matters of executive government. It meets for the purpose of making Orders, issuing Pro- clamations, or attending at formal acts of State 1 .' Privy Councillors are appointed for life, but can be removed by the King or at their own request. The members of the Cabinet are necessarily members of the Privy Council, but ' beyond these there is a group of persons eminent in political life or in the service of the Crown, on whom the rank of Privy Councillor is conferred as a complimentary distinction 2 / Such members never attend a session of the Council without special summons. The Act of Settlement 1 701 (12 & 13 Wm. Ill) disqualified an alien born for appointment to the Privy Council, but the disqualification was removed by the Naturalization Act of 1870. Powers of the Privy Council. (1) Up to 1 64 1 these were enormous. Under the Tudors, the Council, though subordinate to the sovereign, was very powerful ; the King, in increasing his Council's power, was in reality increasing his own. The Council, temp. Edward VI, at whose accession it acted as a Council of Regency to assist the executors appointed by the will of Henry VIII, was divided into five committees, the chief of which was the f Committee for the State,' the real Privy Council ; the other committees were composed of ordinary councillors. Under the first two Stuarts, the Council became the instrument of illegal demands and exactions. During this period, it arrogated to itself enormous judicial powers, which were exercised through the Courts of Star Chamber, the North, and the like (pp. 52 sq.). Its legis- 1 Anson, ii. 133, 143. 2 Ibid. ii. 135. THE COUNCIL AND COURTS. 45 lative authority was greatly strengthened by the Act which gave the royal proclamations the force of law (1539, 3 1 Hen. VIII, c. 8), and by the statutes 34 & 35 Hen. VIII. Though these were repealed in 1547 (1 Edw. VI, c. 12), proclamations were frequently made (p. 170). (2) In 1641, by the abolition of the Star Chamber, most Powers from of the powers of the Council, except the political ones, were x 4I * swept away. It retains the power, however, to inquire into all offences against the Government, and to commit offenders, though those committed can claim their writ of habeas corpus. It also remained a Court of Appeal from the Admiralty and Colonial Courts, and in cases of lunacy, idiocy, or divorce ; in 1833, by 2 & 3 Wm. IV, c. 92, 1832, these Appellate judicial powers, together with those of the Commission of Delegates ommittee - in ecclesiastical cases, were transferred to the Judicial Com- mittee of the Privy Council, which still exists with jurisdiction in Colonial appeals and in certain ecclesiastical cases (Public Worship Regulation Act 1874). From 1679, when Temple's scheme failed, the Council has ceased, as a body, to take any part in the administration, which is carried on by the Cabinet, though an attempt was made to revive its power, by a clause in the Act of Settle- ment, to the effect that 'all matters and things relating to the well-governing of this kingdom, which are properly cog- nizable in the Privy Council by the laws and customs of this realm, shall be transacted there, and all resolutions taken thereupon shall be signed by such of the Privy Council as shall advise and consent to the same/ This clause was repealed in 1705 (4 Anne, c. 8). The Privy Council is still, however, in theory, the only instrument through which the sovereign can exercise his prerogative, being the only body of ministers recognised by law, and retains certain powers of legislation, e.g. the issuing of Orders in Council. It works at the present day by means of committees, which have considerable powers in regulating matters under their control, e.g. — The Board of Trade, established on its present basis 1786, Board of Trade. 46 CHAPTER II. Judicial Committee. Committee of Educa- tion. Local Government Hoard. Privileges of a Privy Councillor. Lord President. Oath of Office. Ministerial respon- sibility. (i) Ministers are respon- sible to the King. The nation attempts to control the King's minis- ters. as the successor of the Committee of Trade and Planta- tions (appointed by Charles II, 1668 1 ), and charged with the control of merchant shipping, trade, railways, and the like. The Judicial Committee (p. 45). The Committee of Education, appointed 1839. The Local Government Board, established 1871, in the place of the Poor Law Board, charged with matters concern- ing the public health, improvement of towns, and the like. The Privileges of a Privy Councillor consist now merely in the right to bear the title of Right Honourable ; in 1487, however (3 Hen. VII, c. 14), it was made felony for any of the King's servants to conspire against the life of a Privy Councillor; and in 17 11 (9 Ai.ne, c. 21), in consequence of the attempted assassination of Harley by Guiscard, to assault a Privy Councillor in the execution of his office was made felony without benefit of clergy; this was repealed 1828 (9 Geo. IV). In 1539, by 31 Hen. VIII, c. 10, the Lord Presi- dent of the Council was declared to have precedence next to the Lord Treasurer ; this office ' was revived by Charles II in the person of Anthony, Earl of Shaftesbury.' The oath of a Privy Councillor was to give advice accord- ing to the best of his discretion, and for the King's honour, and the public weal; to keep the King's counsel secret; to avoid corruption, and to act in all things as 'a good and true councillor ought to do to his sovereign lord 2 .' Ministerial responsibility. The responsibility of ministers to Parliament did not become an established principle till the close of the seventeenth century. In the middle ages, the executive power was wielded by the King in Council, and at first he alone had the right to appoint and dismiss his ministers. Ministerial responsibility meant responsibility to the Crown. But as early as 1191 the barons and bishops unconstitutionally deposed the justiciar William Longchamp for abuse of power, and from the reign 1 'The first suggestion of such a department appears to have been given under the Protectorate.' — Trail, Central Government, p. 123. 2 Blackstone. THE COUNCIL AND COURTS. 47 of Henry III we can trace the idea of securing the redress of administrative abuses by maintaining a hold on the King's ministers. In the middle ages three methods were adopted for attaining this object. (i) The claim to elect the great officers of State was frequently put forward by the barons in the reign of Henry III {e.g. in 1244), but the King stubbornly resisted, and the proposal dropped during Edward I's reign. Revived by the Lords Ordainers it was defeated or dropped in the reign of Edward III, only to be once more brought forward under Richard II. It does not seem that the claim was ever really established, and its failure seems to show that it could not be carried into practice. (2) Oaths were often imposed on great officials in the hope of binding their consciences, but such attempts were nearly always futile. (3) The impeachment of ministers (p. 150). The Good Parliament of 1376 impeached Latimer and Neville, and in 1386 the Commons arraigned Michael de la Pole in the same way. His condemnation ' showed that the great officers of State must henceforth regard themselves as responsible to the nation, not to the King only V and the impeachments of 1388 'proved that no devotion to the King could justify the subject in disobeying the law of the land.' But such gains proved premature. In the sixteenth century, it was to the Crown and not to the nation that ministers were responsible, and though the Tudor sovereigns allowed Parliament to participate in the punishment of unpopular ministers, the national representatives showed no inclination to take the initiative. But when the Stuart Kings began to rule in opposition to the nation's wishes, the House of Commons attacked the ministers by whom their policy was carried out. The claim (2) They to punish the advisers of the Crown for offences committed become re- in their public capacity (e.g. Bacon 162 1, Mid41esex 1624). parliament grew into a claim to control their policy by punishing them 1 Stubbs, ii. 563. 48 CHAPTER II. for adopting measures which Parliament considered to be contrary to the interests of the nation (e.g. Buckingham 1626, Strafford 1641, Clarendon 1667). The impeachment of Danby in 1679 (P- x 53) established the principle that a minister cannot plead the royal commands in justification of an illegal act, while the trial of Oxford in 17 15 showed that a minister is personally answerable for acts of policy even when they are carried out at the order of the sovereign. After the Revolution of 1688, the responsibility of ministers to Parliament became a recognised constitutional doctrine, and in order to fix on individuals the responsibility for particular measures, the Act of Settlement (1701) laid down that resolutions should be signed by those Privy Councillors who had advised their adoption *. At the present day, ministers are responsible for every act of the Crown, and in the words of Professor Dicey ' it is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms, which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part. Hence, indirectly, but surely, the action of every servant of the Crown, and therefore in effect of the Crown itself, is brought under the supremacy of the law of the land V The Cabinet. The Cabinet 'is an informal committee of the Privy Definition. c ounc ii a> con sisting of a * small body of men, who hold or have held high office, who share the same political opinion?, and are jointly responsible for their action V As a body it is not recognised by law, and its members derive their authority from their position as Privy Councillors. Rise of. Historically, government by a Cabinet represents the 1 This clause was repealed shortly afterwards. 8 Law of the Constitution, p. 302. 8 Morley, Walpole (Twelve English Statesmen), p 147. 4 Anson, ii. in. THE COUNCIL AND COURTS. 49 solution of the great constitutional problem of the seventeenth century — how to harmonise the Executive and the Legis- lative. Finding the Privy Council too large for the despatch of business, Charles II transacted his ' secret affairs ' with a few of its most trusted members. The unpopularity of this Cabal induced Temple to lessen the numbers of the Privy Council, and make it more representative (p. 43). His attempt proved a failure, and Charles reverted to his previous plan, and his policy was followed by James II and William III. But before Government by the Crown in Council could be superseded by Government by Cabinet, it was necessary to establish three principles: — (1) That the Cabinet should be severed from the Privy Council. (2) That it should consist of men belonging to the same party, and that none but members of the ministry should be admitted to its ranks. (3) That it should be brought into harmony with the legislative body. (i) The first of these principles was practically settled at the close of Anne's reign, and the severance was rendered complete by the withdrawal of the Sovereign from Cabinet Councils 1 . (ii) The second principle was not established till a much later date. The members of the Cabal held widely divergent views, and at first William III purposely chose his ministers from men of different parties. Toward the close of his reign, however, he found it expedient to form homogeneous ministries, and from that time ministries have usually been chosen from men holding the same political views. This was a great advance. But the principle could not be regarded as established until the Ministry coincided with the Cabinet. Until the last twenty years of the eighteenth century the 1 Since the accession of George I only three instances are given in which the king was present at a Cabinet Council. Two of these were purely formal meetings, and the third rests on doubtful authority. See Anson, ii. 38. 50 CHAPTER IT. Cabinet was an undefined body, consisting of an outer and an inner circle, of 'efficient' and ' non-efficie?-it' members. This distinction enabled ministers who had once been efficient members of the Cabinet, — i. e. who had formerly had a direct voice in deciding questions of policy — to retain their title of Cabinet minister, 'even though their political opponents held the great offices of state 1 / For instance, in 1745 the Pelhams insisted that Lord Bath, their chief political opponent, 'should be out of the Cabinet Council,' and in 1775 Lord Mansfield refused to share the responsibility for various measures passed by the Duke of Grafton's ministry, alleging that he was not an efficient member of the Cabinet when those measures were taken. Lord Rockingham's Cabinet of 1782 seems to have been the first in which there were no non-efficient members; this practice was followed by future prime ministers, and in 1801, Addington laid down that 'the number of Cabinet ministers should not exceed that of persons whose responsible situations in office require their being members of it V (iii) In the fourteenth century, the House of Commons established its right to impeach (p. 150) ministers for grave misdemeanours. In the seventeenth, it went further, and claimed to control their policy and to punish them if such policy seemed detrimental to the public interest. But impeachment and refusal of supply were the only weapons by which this claim could be enforced, and when these were made to subserve party purposes, a serious constitutional difficulty arose. It was obvious that the national repre- sentatives had a right to control the national policy : it was equally obvious that no statesman ought to lose his head for tendering advice to the Crown which was obnoxious to the parliamentary majority. The problem was solved by recognising that the Cabinet must be nominated by the parliamentary majority, and that its members should quit office as soon as they forfeited the confidence of the national 1 Anson, ii. 109. 2 Campbell, Lives of the Chancellors, vi. 327 quoted in Anson, ii. no. THE COUNCIL AND COURTS. 51 representatives. A guarantee would thus be given for the adoption of a policy agreeable to Parliament, and the latter could dismiss a ministry as soon as it failed to carry out its wishes. The first point was established by 17 15, but Sir W. Anson is of opinion that the Cabinet was not wholly dependent on the House of Commons till about 830. 'There is no instance before 1830 of a Ministry retiring because it was beaten on a question of legislation or even of taxation 1 .' But since the passing of the first Reform Bill 'a defeat in the House of Commons on what the Cabinet has chosen to regard as a vital issue, has been the ordinary mode of terminating the existence of a Ministry 2 / The change is now complete. The Cabinet has superseded the Privy Council, the executive has been brought into harmony with the legislature, and ministerial crises have taken the place of parliamentary impeachments. Mr. John Morley 3 notes the following characteristics of Character- J J ° isticsof Cabinet government at the present day. modem 1. The collective responsibility of members of the Cabinet. emment. Each minister is individually answerable for the work of his own department, but he also 'shares a collective responsibility with the other members of the Government for everything of high importance that is done in every other branch of public business besides his own.' Should the Cabinet fail to carry an important measure, all its members tender their resignation. 2. The Cabinet is answerable immediately to the House of Commons and ultimately to the electors. Responsibility to the Crown is little more than a con- stitutional fiction, and responsibility to the House of Lords only means that the Peers may resist a measure of which it disapproves until the electors have shown their wishes on the subject. 3. The Cabinet is exclusively selected from one party. In spite of coalitions and occasional conjunctions of politicians holding directly opposite views on fundamental 1 Law and Custom of the Const, ii. 131. a lb. ii. 130. 8 Walpole, 154. E 2 5* CHAPTER II. The Prime Minister. points *, this principle has been accepted since the beginning of the eighteenth century. 4. The Supremacy of the Prime Minister. The head of the Cabinet occupies an exceptional position. Though in theory chosen by the Crown, he is practically nominated by a majority of his party. On assuming office he has the right to choose his colleagues, subject to the approval of the Crown 8 , but in many cases they are already designated by public opinion and the wishes of his party. In the distribution of posts the Prime Minister's choice is perfectly free. He devotes special attention to foreign affairs, and settles all disputes which arise between different departments. With the assent of the Sovereign he can call for the resignation of a colleague if displeased with his words or actions, and expects to be consulted by heads of depart- ments before important departmental vacancies are filled up. It is only during the present century that the position of the Prime Minister has been openly recognised, and even now he is an officer unknown to the law. Walpole, though exercising many of the powers of the modern Prime Minister, was obliged to disavow the title, and in 174 1 a minority in the Lords protested 'that a sole or even First Minister is an officer unknown to the law of Britain, inconsistent with the constitution of this country, and destructive of liberty in any government whatsoever 3 .' But in 1803 Pitt declared that there ought to be 'an avowed minister possessing the chief weight in the Council 4 ,' and his view has gradually prevailed. Courts growing out of the Privy Council. star Court of Star Chamber (probably so called from the Chamber. starred chamber of Westminster, in which the meetings of the Concilium Ordinarium were held as early as the reign 1 E ^XordLiverpool'sGovernment(i8i2-i827),themembersofwhich agreed to sink their differences on the question of Catholic Emancipation. 2 But ' royal predilections and prejudices will undoubtedly be less and less able to stand against the Prime Minister's strong view of the requirements of the public service.' Morley, Walpole, 158. 3 Quoted in Morley, Walpole, 164. 4 Ibid. 162. Stanhope, Life of Pitt, iv. 24. THE COUNCIL AND COURTS. S3 of Edward III a ), originated in the civil and criminal juris- Origin, diction of the Council, and was in fact identical with the King's Council acting in its judicial capacity. After the establishment of the Court of Chancery, this jurisdiction declined for a time, until again called into prominence by the lawlessness and corruption of juries which followed the Wars of the Roses. In 1487, the Statute 3 Hen. VII, c. 1, rendered necessary by ■ the remnants of wild party struggles, the partiality and venality of the sheriffs and juries, the inso- lence of the magnates and their armed retinues V constituted a committee of the Council, a court with considerable judicial powers, for the purpose of suppressing the evils arising from livery and maintenance, and from seditious and illegal assemblies. The members of the Court were the Lord Chancellor, the Lord Treasurer, the Keeper of the Privy Seal, a bishop, a lord of the Council, and the two Chief Justices ; ' their power embraced the punishment of " murders, robberies, perjuries, and unsureties of all men living," in as full manner as if the offenders had been "convict after the due order of the law 3 ." ' Under Edward VI the Star Chamber is still a committee of the Council, but by the end of Elizabeth's reign it had become a judicial body distinct from the latter 4 . Gneist ascribes its power to * the need of the Reformation, with its important inroads on ecclesiastical authority and ecclesiastical property, which, like all radical transformations, required dictatorial powers, 1 Other derivations are (1) from an Anglo-Saxon word signifying to steer or govern ; (2) from the court punishing the crimen stellionatum, or cosenage (Blackstone) ; (3) from a chamber in which the 'Starrs] or contracts, of the Jews were kept, and which, after their expulsion in 1290, was devoted to the use of the Council. * Two views are held about this Statute, (1) that it created the court of Star Chamber, which had no previous existence; (2) the better view, that it merely confirmed and defined the juri-diction of the Council, which had, as early as the reign of Edward III, sat in the Chambre des Jitoiles. It was acknowledged by the judges in the 'Chamber case' 'that the Court of Star Chamber had existed long before the proclaim- ing statute of 3 Hen. VII as a very high and honourable Court.' — See Gneist, i. 410, note. The • Star Chamber,' as a name, first appears in the Statutes 1504 (19 Hen. VII, c. 14). 3 Annals of England, p. 273, note. 4 Anson, ii. 89. 54 CHAPTER II. Civil juris- diction. Procedure. that could only in later times be limited and circumscribed by law,' and to 'the spirit of persecution and arbitrariness which, originating in religious controversy, spread an in- quisitorial spirit abroad throughout the whole of the political system *.' The Star Chamber had at first considerable civil jurisdiction, e.g. in admiralty cases, in suits with aliens, in certain testamentary cases, and in suits between cor- porations 2 . Towards the end of Elizabeth's reign, 'it had ceased to render help to the poor or weak, or to remedy the uncertainties or inadequacy of the common law 3 ,' and under the Stuarts became merely an instrument for enforcing the claims of prerogative. The procedure of the court was entirely unregulated by law, and consisted in summoning the accused to appear (by writ of subpoena, or by summary arrest), and then examining him on oath. The punishments, which were usually excessive, and often illegal, were imprisonment, fines 4 , mutilation 5 , and whipping; torture (p. 80) was often em- ployed for the extraction of evidence and confession; and, though the court could not inflict capital punishment, it often procured the condemnation of its victims by imprisoning and fining juries, e.g. the jurors who acquitted Sir Nicholas Throckmorton of treason, 1554, were fined and imprisoned. The Star Chamber took cognizance of every sort of mis- demeanor and offence; and especially busied itself with cases of libel, and with the censorship of the press, 1585 (p. 243). It became the practice for the crown to create offences by proclamation, and to proceed against offenders in the Star Chamber, but this was declared illegal by Sir Edward Coke in the case of Proclamations (App. B). The Star Chamber ' represented a judicial power residing in the executive, limited by no settled rules, exerciseable at the royal discretion, and alleging the interests of govern- 1 Const. Hist. ii. 184. 2 Hallam, ii. 30. 3 Anson, ii. 90. 4 A Mr..Alington was fined £1 2,000 for marrying his niece. Sir David Forbes, for abusing Lord Wentworth, ^8,000. Hallam, ii. 35. 5 Prynne, Bastwick, and Burton, for seditious writings, were mutilated, fined ^5,000 each, and imprisoned in Jersey, Scilly, and Guernsey. THE COUNCIL AND COURTS. $$ ment as the ground of its exercise,' and its abolition in 1641 (16 Car. I, c. 10) deprived the Crown of a 'formidable weapon for the suppression of free speech and writing, and for the enforcement of proclamations which the King had no right to make 1 / After the Restoration a proposal was made to establish a similar court, but nothing came of it. Court of High Commission. The germ of this Court Conn of may be seen in the Commission of 1557 appointed by mission. Mary to inquire into cases of heresy 2 . But it was not permanently established till 1583, when Elizabeth, authorised by the^4 Richard II, as a lesser Court of Equity for 'poor men's suits.' Its members were the Keeper of the Privy Seal, and those members of the Council who happened to be present, whilst, later, Masters of Requests were appointed. In 1598 1 Anson, ii. 28, 90. 9 Hallam, i. 202, note. 3 Blackstone. 4 Dictionary of Eng. History. 56 CHAPTER II. Debts. Council of the North. Council of Wales. Court of Wards. it was found to have no power to put its judgments into exe- cution, and was abolished in 1641, at which time it took cognizance of ' almost all suits that by colour of equity, or sup- plication made to the prince, might be brought before himV (&) London, and certain other towns, had Courts of Requests, or Conscience, for the recovery of small debts, established in London temp. Henry VIII. They were con- firmed by various Acts of Parliament, but proving inadequate, were abolished by the County Court Act of 1846. The Council of the North was established by Henry VIII in 1537, in consequence of the insurrection of 1536, known as the Pilgrimage of Grace 2 . Its original objects were to maintain order in the northern counties of Yorkshire, Durham, Northumberland and Westmoreland, and justice was administered under a Lord President 3 ; by degrees, however, it usurped a great deal of arbitrary jurisdiction, especially during the presidency of Wentworth. However, it was swept away by the Long Parliament in 1 641, by the same Act which abolished the Star Chamber (16 Car. I, c. 10). Its headquarters were at York. The Council of Wales was set up at Ludlow by Edward IV in 1478, to administer justice and maintain order in Wales, and the four counties on the Welsh Marches, Hereford, Gloucester, Worcester, and Shropshire. Under James I, complaints were made about the extent of the Council's jurisdiction in the border counties ; and the judges decided that they were not under the Council's authority. It was practically abolished in 1641 (16 Car. I, c. 10. sec. 2), and formally so in 1689 (1 Wm. and Mar. c. 27.) Court of Wards was established in 1540 (32 Hen. VIII, c. 46), to administer feudal wardships, and to make certain inquiries, on the death of a tenant in chief, into the extent of his possessions, and the age of his heir, in order that the 1 Blackstone. 2 Hallam, ii. 42. 3 'A concurrent jurisdiction with the Council of the North was exer- cised further by the three Courts of the Scotch Marches (East, West, and Middle Marches), which included Northumberland, Cumberland, and Westmoreland.' — Gneist, ii. 189. THE COUNCIL AND COURTS. 57 King's rights might be exacted. It was further regulated in the following year by 33 Hen. VIII, c. 22, when the cognizance of Liveries, or feudal investitures, was added to it. The Court was a Court of Record l , and its chief officer was the Master of the Wards. The jurisdiction was oppressively exercised during the reigns of James and Charles I, and was condemned by a parliamentary resolution in 1645. The Court was abolished by statute in 1660 (12 Car. II, c. 24). Court of Augmentation of the King's Revenue was Court of Aug established in 1536(27 Hen. VIII, cc. 27, 28), for the super- intendence and regulation of the revenues of the lesser monasteries, which had been taken over by the Crown. It was a Court of Record, and was presided over by a Chancellor. It ceased to exist in 1553 (* Mary, sess. 2, c. 10). Courts of Law. Courts of Law. The Curia Regis was at first the same as the Committee Curia Regis, of the Commune Concilium, known as the Permanent Council. By degrees the term Curia Regis, or Aula Regis, began to be used to denote the King's Council in its capacity of a Supreme Court of Justice, with the King at its head, and in the reign of Henry I appear traces of a definite organisation and staff, the result of the labours of Bishop Roger of Salis- bury. The Curia Regis, which at this time always followed the King, was occupied at first more especially with financial business, in which capacity it was called the Exchequer {infra). Its members were the great officers of the household, such as the Constable, Chamberlain, Steward, Marshal and Butler, and a number of officials, such as the Justiciar, Chancellor and Treasurer, who were appointed by the King to help carry on the work of government 2 . In its judicial capacity, the 1 'A Court of Record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony.' — Blackstone. Courts of Record are the King's Courts, and they alone have the power of inflicting fines and imprisonment. 2 'It is even possible,' says Dr. Stubbs (Const. Hist. i. 388), 'that a close examination of existing records would show that all officers who discharged judicial functions were members, under some other title, of the King's Household.' 58 CHAPTER II. Exchequer. Barones Scaccarii. Justices in eyre. Curia Regis acted as a Court of Appeal from the local courts, and as a Court of First Instance in cases in which the tenants in chief, who were too powerful to be reached by the lesser courts, were concerned; when special leave was ob- tained from the King, ordinary cases could be brought before the Curia Regis. The Curia Regis also was in close con- nection and communication with the local courts by means of its travelling justices, who, towards the end of Henry I's reign, began to make circuits of the country for purposes of finance and justice (p. 252). Under Henry II, the increased judicial business of the Curia had caused the number of judges to become so large (18) that the King, in 11 78, appointed five of them to sit regularly in Banco, to hear all complaints, .and to transact all the business, which subsequently fell to the three Courts of Common Law {infra) ; at the same time Henry transferred the appellate jurisdiction to the Concilium Ordinarium (p. 41). The limited body of judges was the origin of the Courts of King's Bench and Common Pleas ; the system was slightly modified in 1 179. The Curia still continued in theory, though not in practice, to transact its business in the presence of the King, and continued to follow him l , to the great inconvenience of all concerned. It was shortly afterwards broken up into the three Courts of Common Law, e.g. — (1) Court of Exchequer (from the chequered cloth of the table where the accounts were taken), probably uniting Anglo- Saxon and Norman machinery, dates from William I, though it was not fully organised until Roger of Salisbury's time, in the reign of Henry I. It was concerned with the assess- ment and collection of revenue, and was presided over by the Justiciar, with whom were the Chancellor, Treasurer, and other officers of the Curia Regis, called, when sitting in their fiscal capacity, barones scaccarii (p. 252). In these barones, travelling for assessment, originated the itinerant justices. The Exchequer, the first court to exist, from the early importance of financial matters on which everything else depended, was 1 E.g. in 1277 Edward I removed the Law Courts to Shrewsbury. THE COUNCIL AND COURTS. 59 for some time almost indistinguishable from the Curia Regis, of which it was originally the financial side ; it split off, however, temp. Henry II, and became a separate court, with a distinct staff of officers, from Edward I. Exchequer sessions were held at Easter and Michaelmas, at Westminster, when the Sheriffs attended, and paid in their dues for ferm, Danegeld, pleas, etc. There were two divisions, (i) Ex- Exchequer chequer of Account, which received reports, negotiated business ° * ccount - and tried revenue cases, (2) Exchequer of Receipt which Exchequer of received and weighed the money. The records of the court were preserved on three rolls. One, called the Pipe Roll, Exchequer was kept by the Treasurer, another called the Roll of the Chancery, by the Chancellor, and the third by an officer nominated by the King. Barons of the Exchequer, presided over by a Chief Baron (first appointed 131 2), decided financial disputes between the King and his subjects, e.g. cases of Bate, and Hampden (pp. 198-200). Common Pleas were forbidden to be heard in the Exchequer 1282, and also by the Statute of Rhuddlan (1284), by the Articuli Super Cartas (1300), and by the Ordinances (131 1). The Exchequer had common law and equitable jurisdiction only in cases in which the King was specially concerned, but by a legal fiction, the rights of other courts were encroached upon, e.g. a plaintiff, A, by alleging that he was a debtor to the King, and could not pay because he could not recover a debt owed him by B, could bring his suit against B into the court. This has been rendered impossible by an Act of 1832. The equitable side was abolished 1841 (5 Vict. c. 5) and the Exchequer business was transferred to the Exchequer division of the High Court of Justice, 1873, b y the Supreme Court of fudicature Act, 36 & 37 Vic. c. 66, and is now, by an Order in Council of 1881, assigned to the Queen's Bench division. (2) The Court of Common Pleas ; Magna Carta provided Common that common pleas, i. e. civil suits between subjects, should eaS * be held in a fixed place, and not follow the King 1 . This 1 'Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo.' — Magna Carta, art. 17. 6o CHAPTER II. C/2 H O w H Q U 13 O u w E H G — C 35), and 1549 (2 & 3 Ed. VI, c 25). The county business transacted in these courts was : — Business. (1) Judicial. The Justices sat there when on circuit; all judicial 1 Sel. Charters, 104, 105. 1 It contained ' the archbishops, bishops, abbots priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burghers.' — Stubbs, ii. 205. 3 Sel. Charters, 346, § 42. * Ibid. 311. {Charter of Dunwich.) * Ibid. 358. 7 o CHAPTER II. Financial. Military. Hundred Moot. Pre-Nor- man. matters relating to the police organisation of the county were also managed in the court. The coroners, who kept the pleas of the crown, were elected in the County Court. (2) Financial. Taxes were assessed by knights chosen in the court 1 . (3) Military. The sheriff summoned the smaller free- holders, and proclaimed his orders in the court. The knights of the shire were also, at a later period, elected in the County Court (p. 135). (See Sheriff, p. 252.) Even as early as Magna Carta, 12 15, all sheriffs, constables, coroners, and bailiffs had been forbidden to hold pleas of the crown, which were transferred to the King's justices, and from the time of Edward I the County Courts gradually lost their power, as they became less and less used for judicial purposes. In 1846, the modern County Courts, for the recovery of small debts, were established in place of the Courts of Request (p. 55); their jurisdiction was extended in 1850, and limited equity powers were granted to them in 1865. These Statutes were consolidated by an Act of 1888. An appeal from their decision can be made to the High Court of Justice. The Hundred Moot. (1) Before the Norman Conquest, met once a month 2 , and was convened by the hundreds ealdor. The suitors were all holders of land within the hundred, or their representatives, and six representatives from each township, viz. the parish priest, the reeve, and the four best men. The judges, though in theory the whole of the suitors, were practically a chosen body of twelve; this body of twelve appears in the laws of Ethelred, as a Jury of Presentment, sworn to present every guilty person in the hundred to justice, and temp. Henry II, became the Grand Jury (p. 85). All suitors were bound to attend the Court when summoned, under penalty of a fine. The jurisdiction of the Hundred Court was both civil and criminal, though its powers in criminal cases were, from the first, much diminished by grants of sac 1 Sel. Charters, 352. 3 Ibid. 71. (Laws of Edgar, cap. 5.) THE COUNCIL AND COURTS. 71 and soc to private individuals (p. 73). All suits had to be first tried in the Hundred Court before being taken to a higher tribunal. The Hundred Court was represented in the Shire Court by twelve chosen men. The ealdorman and bishop, owing to the number of hundreds in the shire, could only be present on occasions of peculiar importance. (2) After the Norman Conquest. Circ. 1108, Henry I After orders thai the Hundred Court shall be held as in the time Conquest of Edward the Confessor 1 ; the ordinary Hundred Court met, temp. Henry II, every fortnight, and was occupied entirely with minor suits and debts ; twice a year there was held the Great Hundred Court, for the view of frank-pledge (p. 74). Under Henry III, 1234, the Hundred Courts for the adjudication of small cases were to be held every three weeks; the Statute of Merton, 1236 (20 Hen. Ill), excused freemen from personal attendance both at the Hundred and County Courts; the jurisdiction of the Hundred Courts gradually declined, and in spite of an attempt, in 1340, to remedy abuses which had crept into the working of the Courts, they soon fell into disuse. They were abolished, 1867 (30 and 31 Vict. c. 142, sec. 28), by a provision that no suit that could be brought in a County Court should be brought in any inferior court. The Township Moot (tungemot), the forerunner of the Township vestry meetings of the present day, was the lowest court, being, in early times, often very little more than a family meeting. Its functions were small, and were limited to local affairs of police and the like, and to the making of by-laws By-laws. {i.e. village, or township, laws). It also elected the reeve, except in cases of dependent townships, where he was the lord's nominee. The Sheriffs Tourn (turnus Vicecomitis), was held Sheriff's twice a year, in the octave of Easter and Michaelmas, before the sheriff, ' being indeed only the turn of the sheriff to keep a court leet in each respective hundred 2 .' It was intended to relieve the County Court of the vast number of petty 1 Sel. Charters, 104. a Blackstone. 72 CHAPTER II. Manorial Courts. Court Leet. criminal cases, and was, says Dr. Gneist 1 , 'a branch of the County Court by virtue of royal commission/ At the Michaelmas ' tourn ' a view of frankpledge was taken 2 (p. 74). After the Provisions of Westminster -3 , 1259, and Statute of Marlborough, 1267 (52 Hen. Ill), exempted the great men and clergy from attendance at the sheriff's tourn, it soon fell into disuse. Manorial Courts, the outcome of the private jurisdictions of sac, soc, etc. [infra), were — (1) Court Leet. Lords of manors, who under Anglo-Saxon laws had rights of sac and soc, or who since the Conquest had received grants in which these words occurred, exercised criminal jurisdiction in a court leet*'. This was held once a year, the lord's steward acting as president ; its procedure resembled that of the national courts. If the lord had the view of frankpledge (p. 74), his tenants were excused from going to the Sheriff's Tourn: if not, they were merely exempt from attendance at the court-leet of the Hundred 5 . By the Statute of Marlborough, 1267 (52 Hen. Ill), all bishops, peers, nobles, and clergy were exempted from attendance, causing the importance of the Courts Leet to decline very much, though they are still occasionally held in certain manors. The Court Leet was a Court of Record. (2) Court Customary was a court held in every manor, under the presidency of the steward, to settle questions connected with villenage, and copyhold tenure. Court Baron. (3) Court Baron (' the court of the barons in the old sense of freemen 6 ') was a court held in every manor before all freeholders who owed suit and service to the lord, and Court Customary. 1 Const. Hist. i. 177. 2 Sel. Charters, 346. {Charter 0/1217, Art. 42.) 8 Ibid. 402. (Prov. West., Art. 4.) 4 Stubbs, i. 399. 5 Ibid. 6 Mr. Maitland, in his introduction to Select Pleas in Manorial Courts, states that the Court Baron is the court of the lord — curia baronis, not the court of the freeholders. ' I have never seen, nor do I know of any evidence that the freeholders of a manor are ever dignified by the title barones.' THE COUNCIL AND COURTS. 73 was the descendant of the Township Moot. It was not a Court of Record. It was held every three weeks, under the lord, or his steward, and determined all disputes about the lands within the manor; at first, it 'exercised a civil jurisdiction analogous to that of the Hundred Court, in real actions as in actions of debt 1 '; later, the actions were practically limited to 40s., debt or damage. 'The mode of procedure was left to the custom of the individual localities V Private Jurisdiction was frequently given to the re- Private cipients of large grants of land, and by this means many lordships were entirely removed from the jurisdiction of the local courts 3 . The growth of the private courts materially increased the power of the great landowners, and diverted much of the profits of justice from the King. The chief rights granted were : — Sac, the right to hold a court for one's tenants. Sac. Soc, the right to amercements arising from such a court. Soc. Toll, the right to tallage one's villeins. Toil. Team, the right to the progeny, the brood, the team of Team, one's villeins 4 . Infangenlheof, local jurisdiction over thieves who com- infangen- mitted the offence, or were apprehended within the lordship 5 . Anglo-Saxon Police Arrangements were based pri- Anglo-Saxon marily on the idea of mutual responsibility. At first the mccgth or kindred of an offender was responsible for his appearance, but its place was gradually taken by the gild 1 Gneist, i. 1 70. 2 Ibid., and Glanville, xii. 6. 3 They were not exempt from the jurisdiction of the Shire Court until after the Norman Conquest. 4 These four definitions are quoted from the introduction (p. 22) to Professor Maitland's Select Pleas in Manorial Courts. The author is of opinion that these words conveyed no special rights of jurisdiction — a view which is opposed to that hitherto received. ' On all these words,' he says, 'a minimising interpretation seems to have been set: — they conveyed no right that would not have passed without them, they did but describe the feudal or manorial jurisdiction, and conveyed no regality, no, not even the view of frankpledge.' See also Stubbs, i. 184, note 2, and Sel. Charters, 78. 5 Enc Brit, sub Theft. 74 CHAPTER II. Frithborh or Frank- pledge. View of Frank- pledge. Presentment of Englishry. Compurga- tion. (p. 262) or artificial family 1 . By the laws of Athelstan, Edmund and Edgar 2 , every man was bound to have a borh or surety, who would answer for him if accused. If free, a man could choose his own borh, but if unfree, his lord was answerable for him. This system was developed by Canute, who compelled every man to be in borh, and at the same time to register himself in a hundred and a tithing 3 . The union of these two ideas produced frithborh ox frank- pledge — associations of ten men bound to try and arrest one of their number if guilty of a crime, and clear themselves of complicity. In spite of the 'laws of Edward the Con- fessor V it is probable that this system did not exist previous to the Norman Conquest : in any case the mutual respon- sibility of the ten for each other's offences was not recognised until subsequent to that date. The frithborh, which was known in the North of England as tenmannetale, was presided over by a borhs ealdor. The view of frankpledge, after the Norman Conquest, was an inquiry held twice a year by the sheriff, in the Courts Leet and Sheriffs Tourn, into the condition of the various frankpledges ; the time of holding the 'view' was regulated 1297 (25 Ed. I, c. 35). Under the Norman Kings, the law was administered with a heavy hand, usually to the prejudice of the English. William I introduced the custom known as Presentment of Englishry, by which a murdered man was regarded as Norman, and the neighbourhood, in which the body was found, punished accordingly, unless it could be specially proved that he was an Englishman 5 . By the time that the fusion of the Normans and English had taken place, temp. Henry II, this law had ceased to be burdensome, though it was not abolished until 1340 (14 Ed. Ill, St. 1. c. 4). Compurgation. In Anglo-Saxon times facts were deter- mined either by Compurgation, or by Ordeal. If a man was accused by a private individual, he might bring Com- 1 Sel. Charters, 63, c. 27. 2 Ibid. 66, c. 2 ; 67, c. 7 ; 71, c. 6. 8 Tithing in this sense probably means a group of ten families. * Sel. Charters, 76. 5 Charters, 84, 201. THE COUNCIL AND COURTS. *]$ purgators to swear to his good character and credibility. They were generally twelve in number, and the value of their oaths depended on their social position, a thegn's oath, for instance, being equal to that of six ceorls, whilst an ealdorman could outweigh the testimony of six thegns, or a whole township. The word of the King, and of the archbishops, was sufficient in itself; and a priest's oath was accepted without any Compurgation. Perjury, such as in the breach of the wed, or oath to stand trial, or 'to perform any lawful obligation/ was punishable by imprison- ment, and by various ecclesiastical penalties 1 . A criminal presented for trial in the Shire Court by the Hundred Court, was regarded as already convicted by public opinion, and could not seek acquittal by Compurgation. The practice of Compurgation was gradually superseded by the system of Inquest by sworn Recognitors (see Trial by Jury, p. 83), though it continued to be occasionally employed in boroughs which had a charter of exemption from the Shire Court. Under the name of Wager of Law, Compurgation also con- Wagerof tinued to be occasionally employed in actions for debt until abolished in 1833 (3 & 4 Wm. IV, c. 42). Ordeal 2 . Facts were also determined by the Ordeal, Ordeal. 1 which appears to have been allowed as an alternative to those who failed in or shrank from the process by Com- purgation V The ceremony took place in the church, under the direction of the priests, and usually consisted in walking over, or handling, red-hot iron, or plunging the arm into boiling water; when plunged to the elbow, it was known as the triple Ordeal: when to the wrist only, as the single Triple ^ 7 7* x , . . . , ,. . , , Ordeal. Ordeal*, in these cases the injured limb was bound up Si le by the priest for three days, and, if at the end of that time Ordeal, the wound had perfectly healed, the accused was acquitted. There was also another method ; that of tying a man's limbs, and throwing him into a river or pond; if he sank, he 1 Laws of Alfred, 1. 2 Sel. Charters, 71, 77, 84, 143, 151. 3 Dictionary of Eng. History, art. Ordeal. 4 Laws of Edgar and Ethelred, Sel. Charters, 71, 72. 7 6 CHAPTER II. Corsned. Wager of Battle. Appeal of Felony. was considered innocent, if he swam, guilty. The Corsned, or ' accursed morsel,' was also employed occasionally ; a piece of bread being swallowed, with a prayer that it might prove fatal if the swallower was guilty; Earl Godwin is said to have perished in this manner, 1053. Trial by Ordeal was abolished in England in 12 18, in conformity with a decree of the Lateran Council passed in 12 15. Wager of Battle, a custom introduced by William I, who, however, still allowed the English to be tried by Ordeal if they preferred it 1 , was used in civil actions, in trials in the Court of Chivalry, and in appeals of felony. It was common abroad, e.g. Gunhild, wife of the Emperor Henry III, and daughter of Canute and Emma, was acquitted by this means on a charge of unfaithfulness. (1) In civil cases the combat was fought by champions, not by the parties themselves, for fear one of the parties to the suit should be slain, thus putting an end to the case. (2) In military cases, such as that of Henry of Essex, 1157, the combat was under the auspices of the Constable and Marshal ; and, unless the King interposed, continued until one of the combatants was slain, or gave in; in the latter case, the one who yielded was put to death. (3) In cases of murder or manslaughter, an 'appeal of felony' could be brought by blood relations of the murdered man against the murderer, who had the right to claim 'wager of battle/ unless the accuser was 'a woman, a priest, an infant, or of the age of sixty, or lame, or blind.' The accused pleaded not guilty, and threw down a glove which was taken up by the accuser. In such cases a duel took place between accuser and accused. After a solemn oath had been taken, the combat commenced; if the accused was vanquished, he was hanged; if he killed his adversary, or prolonged the fight from sunrise 'till the stars appear in the evening,' he was acquitted. In the latter event, the accuser was fined 60 shillings, and declared infamous. Wager of battle was claimed as recently as 18 17, by one Abraham Thornton 1 Statutes of William /, Sel. Charters, 84. THE COUNCIL AND COURTS. 77 accused of murder, who had to be discharged as the appellant refused to accept the challenge. The custom was abolished in 1819 (59 Geo. Ill, c. 6). Trial by battle was, however, repugnant to English feeling, and was never popular, e.g. many towns obtained the insertion in their charters of an exemption from the ' wager ' for the burghers \ Judicial Punishments were — Punish- ments. (1) Capital. In Anglo-Saxon times, death was nominally capital inflicted in cases of theft where the value of the article stolen exceeded 12a 1 ., e.g. in the laws of Ine, Athelstan, Edgar, and others ; practically, however, the thief was allowed to redeem his life by a fine 2 . Treason was made 'death- worthy ' by Alfred 3 (p. 3) ; and by degrees, offences against the King, such as coining, and fighting in the King's hall, were made capital. Sacrilege, and witchcraft were also punished by death. Ethelred II in his laws, 1008, decrees that 'Christian men for all too little be not condemned to death, but in general let mild punishments be decreed for the people's need 4 / and this law was re-issued by Canute; by William I capital punishment was entirely abolished, and mutilation substituted 6 . It was, however, speedily re- vived under Henry I, 'the Lion of Justice/ who, in n 08, declared that all theft, robbery, clipping, and coining false money, should be punished by hanging 6 ; and, in 11 24, we find Ralph Basset, the Justiciar, hanging forty- four thieves at one time at Hundehoge in Leicestershire 7 . From this time until 1820, theft remained a capital offence. In that year, by the Statute 1 Geo. IV, the punishment of death was taken away from many offences, though it continued to be the penalty for forgery until 1837. The laws of England were, up to a recent period, extremely draconian, no less than one hundred and sixty offences, many of which 1 Sel. Charters, 266. 267. {Charters of Winchester and Lincoln.} * ' If a thief be seized, let him perish by death, or let his life be redeemed according to his " wer." '—Laws of Ine, 1 2. 8 Sel. Charters, 63. * Ibid. 73. 8 Ibid. 85. {Statutes of William I c. x.) 6 Ibid. 97. {Flor. Wig. 1108.) 7 Ibid. 98. {Chron. Ang. S. 11 24.) 78 CHAPTER II. were added during the Hanoverian period, being punishable by death; though on several occasions, notably by Magna Carta, and by Statutes of 1331 and 1354 (5 & 28 Ed. Ill), it was ordained that no man should suffer death, except in strict accordance with the process of law. The infliction of capital punishment was mitigated and regulated 1820, 1823, 1837, 1841, and the laws on the subject were con- solidated and amended 1861 (24 & 25 Vic. c. 100); the penalty of death now attaches only to the crimes of high treason 1 , murder, piracy with attempted murder (1 Vic. c. 88, sec. 2), and to offences against his majesty's ships, arsenals, or dockyards (12 Geo. Ill, c. 24). In Anglo-Saxon times the punishment of death was inflicted in various ways, by hanging, beheading, drowning, stoning, and burning; subsequently hanging, and beheading, became the usual methods of execution ; drowning, however, continued to be employed in the case of women for some time during the Middle Ages, and burning in the case of heretics (1401, de heretico comburendo, 2 Hen. IV, c. 15 2 ), abolished 1677 3 , and of women convicted of treason, abolished, and death by hanging substituted, 1790 (30 Geo. Ill, c. 48). By a Statute of 1531 (22 Hen. VIII, c. 9), poisoners were ordered to be boiled alive, and the punishment was actually inflicted, April 5, 1532, on a cook named Rose (who, in endeavouring unsuccessfully to poison Bishop Fisher of Rochester, destroyed divers persons), and on Margaret Davy, a maid, March 17, 1543, 'for poisoning three households that she had dwelled in 4 '; the Statute was repealed in 1547 (1 Edw. VI). Mutilation. (2) Mutilation, i.e. loss of ears, nose, eyes, hands, or feet, and scalping, was frequently employed in early times, and was substituted by William I for the punishment of death 5 . 1 Persons convicted of treason were usually put to death with great barbarity, being disembowelled and quartered whilst still alive. 8 Instances of the burning of heretics occur before this. . 8 Blackstone, iv. 48. 4 Stowe's Chronicle. R Sel. Charters, 85 (Stat. William /, c. x) ; ib. 151 {Assize of North- ampton, Art. 1), THE COUNCIL AND COURTS. 79 It was often inflicted for breach of the Forest Laws 1 (p. 183), and continued to be frequently employed for certain offences such as libel, especially under the Star Chamber (p. 52), e.g. Prynne, Burton, and Bastwick had their ears cut off by order of the Star Chamber, 1637. (3) Peine forte et dure. A punishment inflicted on those Peine forte et who refused to plead when indicted for felony, was intro- duced by the Statute of Westminster I, 1275, and at first consisted in a rigorous prison discipline and diet. The punishment, however, gradually took the form of laying a heavy iron weight on the body of the prisoner until he submitted ; if he remained obstinate, he was pressed to death. This latter method of inflicting the peine forte et dure is first mentioned 1407 (8 Hen. IV). At the trial of the regicides in 1660, a threat of enforcing the peine forte et dure was employed to induce some of the accused to plead. Instances of the infliction of the punishment are recorded as lately as 1735 (when a culprit was pressed to death at Horsham), and 1741, at the Cambridge assizes; it was not abolished until 1772 (12 Geo. Ill, c. 20). (4) Fines in Anglo-Saxon times were inflicted for almost Fines. every offence; they took the form of bot\ or compensation Bot. paid to the injured party, and of wite, or fine paid on each wue. occasion to the King for the breach of his peace (mund). The wites were collected by the sheriff. There was also a special kind of fine, known as oferhyrnes 3 , inflicted in cases of Oferhymes. contempt, such as failing to attend meetings when summoned, and the like. The bot for a wound an inch long in the face, was three shillings ; for the loss of an ear, thirty shillings. Murder {murdrum) was redeemable by paying a wergild* to Wergild. the relatives of the murdered man. ( Wer, a man's value as to wer. life, or oath, e.g. 200 shillings for a ceorl, 1200 for a King's thegn [p. 222].) In early times, on the murder of a King, 1 By the Charter of the Forest, c. 10 (12 17), the punishments of death, and mutilation, for Forest offences was abolished. — Sel. Charters, 35°- ■ Sel. Charters, 61, 6}. {Laws of Alfred, c. 38.) * Ibid. 66. (Athelslan, c. ao.) * Ibid. 63, 201. 80 CHAPTER II. Cynebot. a fine called cynebot 1 was due to the people, as well as the wergild to the King's relatives. When a man could not, or would not, pay the wergild, or the hot, he was put out of the King's peace, and those whom he had injured could take what vengeance they chose upon him. A promise to abide Wed. trial, or ' to perform any lawful obligation/ was called wed y the penalty for breaking which was forty days' imprisonment, Later Fines, besides spiritual punishments. In later times, fines were frequently inflicted with a view to filling the King's coffers; especially temp. Henry VII (who fined the Earl of Oxford £15,000 for keeping retainers in livery); temp. James I (by means of the Star Chamber) ; and temp. Charles I (who fined Lord Salisbury £20,000, Lord Westmoreland £19,000, and Sir C. Hatton £12,000, for trespassing on the royal forests). In 1684, a Mr. Hampden, grandson of the famous John Hampden, was fined £40,000 for being a partisan of the Duke of Monmouth ; and in 1687, Lord Devonshire was fined £30,000 for an assault committed within the precincts of the Palace ; the fine was however remitted. By Henry I's Charter of Liberties' 1 (1100), fines were to be assessed according to ancient usage; excessive fines were likewise forbidden by Magna Carta, by the Statute of Westminster I (1275), and by the Bill of Rights (1689), which also forbade the infliction of cruel and unusual punishments. Various (5) Other punishments were also inflicted for offences ments. against the law, e.g. imprisonment, the pillory (abolished 1837), the stocks, which were in general use from about 1350, up to the beginning of the present century, and the ducking-stool, used as a punishment for scolds. Outlawry was also sometimes employed 3 (p. 237). Torture. Torture, though contrary to the law of England 4 , was frequently employed during the Middle Ages by the exercise of the prerogative of the Crown, more especially for the purpose of manufacturing evidence, and extorting confessions. 1 Sel Charters, 65. 2 Ibid. 100. 3 Ibid. 145 (§ 14), 15T. 4 Magna Carta, ' Nullus liber homo ahquo modo destruaturS THE COUNCIL AND COURTS. 8l The first instance occurs in the reign of Edward II \ when the King and Council, in answer to a request of Pope Clement V, allowed the Templars to be tortured. The Duke of Exeter (John Holland), temp. Henry VI, is said to have introduced the rack, which was, in consequence, known as ' the Duke of Exeter's daughter ' ; and temp. Edward IV there are instances of its employment. Under Henry VIII, Anne Askew was severely racked ; and under Elizabeth, the victims of the Star Chamber (especially the Jesuits and Catholics) were frequently tortured when it was desired to elicit information, although torture was forbidden by the Queen. The case of Timothy Penredd, charged with forging the seal of the King's Bench, in 1571, deserves mention from the barbarity of the sentence : his ears were to be nailed on successive days to the pillory ' in such a manner that he, the said Timothy, shall, by his own proper motion, be compelled to tear away his two ears from the pillory.' The conspirators in the Gunpowder Plot of 1605 were all tortured, and Edmund Peacham was severely racked ( 1 6 1 5) 2 . Torture was declared illegal by Sir Edward Coke, and this opinion was expressed by all the Judges when it was proposed by the Privy Council to put John Felton, the assassin of the Duke of Buckingham, to the. rack, in 1628. The last instance of torture in England occurred in May, 1640 3 , although it was not forbidden by Statute until 7 Anne, c. 21, § 8, 1709, which, however, provides for the continuance of the peine forte et dure. The usual modes of torture were the rack, the Scavenger s daughter (an instrument invented temp. Henry VIII by Sir William Skeffington, Governor of the Tower of London), the thumb-screws, and the boot. Benefit of Clergy, originating in the early favour with Benefit of which the Church was regarded, and in the power which 1 The French Admiral, Turl eville, captured at Dover, 1295, is said to have been tortured, but the facts of the case are uncertain. 2 ' He was examined,' says Sir Ralph Winwood, ' before torture, in torture, between torture, and after torture ' 3 Jardine. Reading on the Use of Torture in the Crim. Law of England (1378). 82 CHAPTER II. churchmen exercised through their higher education, was the right of any clerk in orders, who was accused in a secular court, to claim his discharge at once into the bishop's court, where he was usually acquitted. This privilege, which had led to great abuses, was partially restricted by a statute of Henry VI, to the effect that the clerk must be convicted, or at least arraigned, before he could claim it ; by that time the privilege had become extended to all who could read, whether clergy or not; and in 1489 (4 Hen. VII, c. 13) it was enacted that those not in orders should only be allowed to claim benefit of clergy once, and that they should be branded on the hand. In 151 2 (4 Hen. VIII. sess. 2, c. 2) the privilege was taken away from murderers and felons; in 1536, and 1540, the distinction between laymen who could read, and clergy, was abolished, but revived 1547. In 1576 (18 Eliz. c. 7) the process of handing the offender over to the ecclesiastical courts was dispensed with, and in 1706 (5 & 6 Anne) the test of reading was no longer required, whilst other punishments, instead of the burning of the hand, might be inflicted at the discretion of the judge. The privilege of benefit of clergy was taken away in 1827 (7 & 8 Geo. IV, c. 28). By a statute of 1547 (1 Ed. VI, c. 12, § 14), peers of parliament were granted a privilege equivalent to benefit of clergy, ' although they cannot read, and without being branded in the hand, for all offences then clergyable to commoners V This privilege of peerage was abolished in 184 1 (4 & 5 Vict. c. 22). Sanctuary. Privilege of Sanctuary. There were certain spots set aside as sanctuaries, or places in which persons guilty of any crime, except sacrilege or treason, were safe from penalties. The custom is of very ancient origin, and appears in England in the laws of Ini, Alfred, and William the Conqueror. The Privilege of Sanctuary extended for forty days, within which time the person taking sanctuary had to confess his guilt before the coroner, and to abjure the realm. It was some- times violated, e.g. the case of Hubert de Burgh, 1233, wno was dragged out of sanctuary at Merton, and imprisoned in 1 Blackstone. THE COUNCIL AND COURTS. 83 the Tower, whence he was only liberated next day on the strong representations of Bishop Wells of Lincoln. Statutes were passed in regulation of sanctuaries temp. Henry III, and in 1378 (2 Ric. II. st. 2, c. 3); 1529 (21 Hen. VIII, c. 2, when felons, and murderers, in sanctuary were ordered to be branded)*; in 1534, and 1536, when the right was taken away from those guilty of treason or piracy; in 1536, also (27 Hen. VIII, c. 19), every one in sanctuary was forbidden to carry arms. In 1540 (32 Hen. VIII, c. 12) the number of sanctuaries was diminished, and the privilege taken away from many offenders. In 1624 (21 Jac. I, c. 28), sanctuaries were abolished, though they still continued to be used in London, in the case of debtors, until 1697, in which year the Savoy, Whitefriars, and other remaining sanctuaries, were done away with by 8 & 9 Wm. Ill, c. 27, § 15. Trial by Jury dates from the reign of Henry II, and Trial by may be traced to the Inquest by sworn Recognitors introduced by the Normans \ It had no existence in Anglo-Saxon Origin. times. Anglo-Saxon compurgators gave general evidence relative to a man's character. Anglo-Norman recognitors decided facts on their own knowledge. When the Crown wished for information on local matters, each district was called on to elect twelve men, who swore to answer truthfully. Thus in 1070 twelve men were elected in every county to swear to their laws and customs 2 , and the information on which Domesday was based was collected in the same fashion 3 . Henry I used the jury of recognition for fiscal purposes, and Henry II expanded the system by employing it for judicial matters. (a) The Jury in Civil Cases. WGrt By the Grand Assize, Henry II made use of recognition for the settlement of land disputes. By its provisions, any one whose claim to his freehold was disputed, could refuse trial by battle, and apply to the Curia Regis to stop all proceed- ings in the local courts. The Curia sent instructions to the 1 'Directly derived from the Frank capitularies.' — Stubbs, L 613. 9 Sel. Charters, 81. 3 Ibid. 86. G 2 jury 84 CHAPTER II. Sheriff to that effect, and the claimant then demanded the nomination of four knights of the neighbourhood. These chose twelve knights from the same district, who were bound to declare on oath which of the two disputants had the better claim. If they were not unanimous, or if some of them were ignorant of the facts, other knights were chosen until twelve unanimous recognitors were found \ The same procedure was prescribed by the Constitutions of Clarendon (1164) for the settlement of disputes as to lay and clerical tenure 2 , and by the Assize of Northampton (1176) for determiningt he property due to heirs 3 . (£) criminal (b) The fury in Criminal Cases. Previous to 1 1 66 the history of the criminal jury is obscure. In Anglo-Saxon times it was probably a duty of the local courts to present criminals for judgment 4 , and a law of Ethelred specially charges the twelve senior thegns of each wapentake with this task 6 . But we have no means of knowing what, if any, connection exists between such a body and the juries of Henry II's reign. In Anglo-Norman times, the criminal jury is first mentioned in the Constitutions of Clarendon 6 , and by the Assize of Clarendon (1166) inquest was to 'be held in each county, and hundred, by twelve lawful men of the hundred, and four lawful men of the township 7 / to present all reputed offenders, who were thereupon to undergo the ordeal by water. By the Assize of Northampton (1176), all men accused before the King's justices of murder, theft, robbery, forgery, arson, and the like, by the oath of twelve knights of the hundred, or, if the knights are not present, the oath of twelve lawful freemen, and by the oath of four men from each town of the hundred, are to go to the ordeal of water 8 . In the ■ form of proceeding for the judicial visitation/ of 1194, it is provided that four knights are 'to be chosen from the whole county, who are to choose, on their oath, two lawful knights from 1 Stubbs, i. 616. Sel. Charters, 161. 9 Sel. Charters, 139, § ix. 8 lb. 152, §§ 4, 5. 4 Stubbs, i. 618. 5 Sel. Charters, 72. 6 lb. 139, vi. ' lb. 143. 8 lb. 151. THE COUNCIL AND COURTS. &$ each hundred or wapentake, and these two are to choose, on their oath, ten knights from each hundred or wapentake, or, if there are no knights, lawful and free rnen, so that these twelve may answer together for all matters in the whole hundred or wapentake 1 / This Jury of Presentment Jury of ,. ,. - . . X . w ,-i Presentment. was the immediate ancestor of the modern Grand Jury, which Grand j ury . now consists of from twelve to twenty-three, sworn out of twenty-four freeholders summoned by the sheriff. These grand jurymen receive indictments, and hear the evidence for the prosecution, to determine whether there is sufficient evidence to put the accused on his trial ; if they are satisfied, they find a ' true ' bill ; if not, they ' ignore ' the bill. Criminals presented by the Grand Jury were sent to the ordeal, and even if they passed it successfully, were forced to go into exile, and treated as outlaws if they returned. But in conformity with a decree of the Lateran Council of 12 15, ordeal was abolished in England in 12 18, and no method remained of testing the truth of a criminal accusation 8 . Accordingly the practice gradually obtained of allowing a second or Petty Jury to disprove the truth of the present- Petty jury, ment. The accused, however, was not compelled to plead, though if he refused he suffered the penalty of peine forte et dure (p. 79). All this time the jury were merely judges of fact, and based their decisions on their own previous knowledge, not on evidence given in court 8 . But by degrees it was found that the jurors often were too ignorant of the case to come to a decision, and the practice arose, temp. Edward I, of 1 afforcmg ' the jury, by adding to it other recognitors familiar with the facts. This Jury of Ajforcement gradually developed Jury of into a sworn body of witnesses without any judicial functions, 1 Sel. Charters, 259. 2 The ordeal may have fallen into disuse some time before this. Bracton, a writer of Henry Ill's reign, does not mention it. 3 ' So entirely did the verdict of the recognitors proceed upon their own previously formed view of the facts in dispute, that they seem to have considered themselves at liberty to pay no attention to evidence offered in court, however clearly it might disprove the case which they were prepared to support.' Forsyth, Trial by Jury, 129. 86 CHAPTER II. Immunity Juries. Fining Jurors. Bushell's Case, 1670, whilst the first jury gradually confined themselves to acting as judges of fact. The exact date of the separation be- tween the two bodies is unknown, but it was complete by Edward Ill's reign. Under Henry IV, the jury begin to hear evidence in open court, and the judges declared that when jurymen had once been sworn, they should not see nor take any evidence except that offered in court. About the time of Mary the principle obtained that the jury should have no previous knowledge of the case, and from then till now the chief features of the system have remained unchanged \ of Immunity of Juries. Temp. Henry II, jurors giving a wrong verdict were subject to a writ of attaint, i.e. an appeal was made, and a fresh jury of twenty-four tried the case again ; if they found a different verdict, the original jury was severely punished. This severity was due to the fact that, when the jury were witnesses of fact, a wrong verdict convicted them of perjury. In 1495 (n Hen. VII, c. 24), jurors who gave false verdicts were to be fined at the discretion of the judge, and to be incapable of serving again. A statute of 1571 (13 Eliz. c. 25) also con- firmed the writ of attaint for false verdicts ; this writ, though long practically obsolete, was not abolished until 1825 (6 Geo. IV, c 50, § 60). Juries were frequently fined and imprisoned by the Star Chamber, for giving verdicts in opposition to the wishes of the sovereign, e.g. the jury which acquitted Sir Nicholas Throckmorton of treason, for having taken part in Wyatt's rebellion (1554), were fined and imprisoned. In 1666, a Grand Jury was reprimanded by the Court of King's Bench, for returning a true bill against a prisoner for manslaughter instead of murder. The absolute immunity of jurors returning a verdict against the evidence, or direction of the judge, was established in 1 670 by Bushell's case 2 . A jury, of which Bushell was foreman, acquitted William Penn, and William Mead, charged with a breach of the Conventicle Act (p. 291), contrary 1 For the close connection between the jury system and the history of representation, see pp. 1 28-1 31. a State Trials, vi. 999. THE COUNCIL AND COURTS. 87 to the direction of the Recorder of London, who thereupon fined each juror forty marks. Bushell, in default of payment, was committed, but obtained his writ of Habeas Corpus, the return stating that he was imprisoned for giving a verdict 'against the full and manifest evidence, and against the direction of the Court/ This was held by Chief Justice Vaughari to be insufficient, on the ground that the judge is not competent to direct, unless he has a knowledge of the facts of the case ; these facts he only learns from the verdict of the jury. Assize of Novel disseisin was a writ issued to the Novel Sheriff, at the request of the person disseised, or dispossessed, of land, commanding him to summon a jury to decide whether the dispossession has been lawful, and to report to the Justices of Assize 1 . By Magna Carta, sec. 18, the assize is to be taken in each county four times a year, by two Justiciaries, assisted by four knights, elected by the county 2 ; this was reduced to once a year by the Charter of 12 17. By the Statutes of Merlon, 1236 (20 Hen. Ill, c. 3), Mart- borough, 1267 (52 Hen. Ill, c. 8), and Westminster II, 1285 (13 Edw. I, c. 26), 'frequent and vexatious disseisins' were checked. The writ of Novel disseisin was abolished in 1833 (3 & 4 Wm. IV, c. 27). Assize of Mort d'ancestor, founded on the fourth article Mort d'an- of the Assize of Northampton 3 , is a writ giving authority to the ce Sheriff to summon a jury to determine whether the plaintiffs ancestor was ' seised,' or possessed, of the land in question on the day of his death, and whether the plaintiff is the rightful heir, and to report to the justices. It did not apply to lands devisable by will. Magna Carta contains the same regulation as to the holding of the assize as it does in the case of Novel disseisin. The assize was rendered nugatory 1 660 (12 Car. II), and was abolished by 3 & 4 William IV, c. 27, § 36 (1833). Assize of Darrein Presentment, or last presentation, Darrein Pre- was a writ directing the Sheriff to inquire, by a jury, as to sen m< 1 Assize of Northampton, 5th Article. Sel. Charters, 152. 8 Sel. Charters, 299. 8 Ibid. 151. (See App. A.) 88 CHAPTER II. who was the last patron who presented to the living then vacant, with regard to which there was a dispute. The assize was regulated in the same manner as the preceding ones by Magna Carta \ It became obsolete about the time of Anne, and was abolished in 1833. Tht Crown Relations between the Crown and the Courts. and the Courts. The King, as the fountain of justice, was in early days supposed to be present in person at all judicial proceedings ; as a matter of fact, he often did preside, and decided cases. By degrees, however, after the establishment of the Common Law Courts, the practice was discontinued (p. 61), and, in 1607 ^ was decided by Sir Edward Coke that the King had no power to hear cases. Although the King could not directly interfere in the course of justice, he could do so indirectly by influencing subservient judges, e.g. Richard II obtained by threats, 1387, an opinion from the judges, that the Commission of Regency was illegal, and those who sup- ported it, traitors. The impartiality of the judges after the time of Richard II, in whose reign the Lord Chief Justice, Robert Tresilian, was convicted of treason for having sup- ported the King against the Commission of Regency, is notable. * The later judicial staff/ says Dr. Gneist 2 , ' remained so far outside the great party feuds, that even at the change of dynasty under Henry IV, Edward IV, Richard III, and Henry VII, the former justices were confirmed/ The Tudors never enforced their wishes in the Courts of Common Law, and in fact never interfered with the regular administration of justice. In the reign of Henry VIII the salaries of the judges were largely increased, with the result of increasing the independence of the Bench. In 1587 they refused to agree to the illegal disposal of an office by Elizabeth 3 , and in 1591 presented to the council an important remonstrance against illegal commitments 4 . In the reign of James I the judges, led by Sir Edward 1 Sel. Charters, 299, 403 {Prov. West. art. 7). 3 Const. Hist. i. 391, note. 8 Gneist, ii. 191 note. * Hallam, 1. 234. THE COUNCIL AND COURTS. 89 Coke, attempted to take up the position of arbiters between the crown and the nation. This was opposed to the Stuart theory of government, which looked on them as ' lions, yet lions under the throne/ When in 16 16 Coke refused to stay judgment in the case of Commendams, in accordance with the royal wishes, James dismissed him from the Chief Justiceship, and a like punishment was meted out to Chief Justice Crew in 1626 for refusing to acknowledge the legality of the forced loan. These blows were not struck in vain. Until 1 701 the judges held office at the royal will, and showed themselves warm partisans of the prerogative. But after the Revolution of 1688 the independence of the Bench was secured by the Act of Settlement. For the future, judges were to hold office quamdiu se bene gesserint, and could be removed only on the address of both Houses of Parliament. Appellate Jurisdiction. Appellate The supreme Appellate Jurisdiction was at first vested in the Witenagemot, subsequently, temp. Henry II (1178), in the Concilium ordinarium ; thence it passed to the House of Lords, where it has remained ever since, in spite of the attempt of the Commons to deny the Lords the right of hearing appeals from Courts of Equity, 1675. (Shirley v. Fagg, App. B.) Intermediate Courts of Appeal. From the Common Pleas, and the inferior Courts of Record, an appeal lay to the King's Bench, and thence to the Exchequer Chamber (erected 1357, and re-modelled 1585 and 1830). In 1534, certain Commissioners, called Delegates of Appeals, were appointed to hear appeals from the Ecclesiastical, Admiralty, and Baronial Courts; in 1832 their appellate powers were transferred (with the exception of those of the Judicial Com- mittee in Colonial Appeals, and in certain Ecclesiastical Cases) to the Judicial Committee of the Privy Council (2 & 3 Wm. IV, c. 92), (p. 295); all these appellate powers, were transferred, by the Act of 1873, to tne Court of Appeal, consisting 01 all the judges. Thence there is still a final appeal to the House of Lords (p. 128), the constitution of 90 CHAPTER II. the Court being regulated by the Appellate Jurisdiction Act of 1876 (39 & 40 Vict. c. 59). Chief Enactments regulating Justice and Police up to Edward I : — Laws of Ini, circ. 690. Slubbs, Set. Charters, 61. (This book, p. 162.) Laws of Alfred, circ. 890. lb. 63 (p. 163). „ Athelstan, circ. 930. lb. 67 (p. 163). „ Edgar, 959~975- &• 70 (p. 163). „ Ethelred, 978-1016. lb. 72 (p. 163). Canute, 1017-1035. lb. 73 (p. 163). „ Edward the Confessor 1 , lb. 77 (p. 164). Statutes of William I. lb. 83 (p. 77). Separation of the Spiritual and Temporal Courts by William I. Charter undated. lb. 85 (p. 274). Charter of Liberties of Henry I, 1 100. lb. 99, sq. (p. 15). Charter regulating the County, and Hundred, Courts, circ. 1 1 08-1 1 1 2. lb. 104 (pp. 69, sq.). Constitutions of Clarendon, 1164. lb. 137, sq. (p. 277). Assize of Clarendon, 1166. lb. 143, sq. (pp. 84, 94). Inquest of Sheriffs, 1170. lb. 148, sq. (p. 250). Assize of Northampton, 1176. lb. 150, sq. (p. 84, 87). „ Arms, 1 181. lb. 154, sq. (p. 129). „ the Forest, 1184. lb. 157, sq. (p. 184). Magna Carta, 12 15. lb. 296, sq. (p. 15). Charter of the Forest, 1217. lb. 348, sq. (p. 184). Regulations for the Conservation of the Peace by Watch and Ward, 1233. lb. 362. Ditto, 1253 lb. 374. Provisions of Oxford, 1258. lb. 387, sq. (p. 16). „ Westminster, 1259. &• 4 OI > sq. (p. 17). Regulations for Conservation of the Peace, 1 264. lb. 41 1. Dictum de Kenilworth, 1266; sec. 37, 38, 40. lb. 425 (p. 18). Statute of Marlborough, 1267 (52 Hen. Ill), (pp. 72, 87). „ Westminster I, 1275 (3 Ed. I), (p. 211). 1 These laws are not found in record form until 1070. THE COUNCIL AND COURTS. 91 Statute of Rageman, 1276 (4 Ed. I). „ Gloucester, 1278 (6 Ed. I, c. 8), (by which claims not exceeding 40s. were transferred to the local courts, p. 216). Statute of Winchester, 1285 (13 Ed. I). Sel. Charters, 469, sq. (pp. 254, 307). Writ of Trailbaton \ 1305 (33 Ed. I), empowering special judges to go through the country, and to take severe and summary proceedings against swashbucklers or Irailbdtons, i. e. ruffians armed with bludgeons. Note. Summaries of most of the above enactments will be found in Appendix A. 1 Rymer, R. I. 970. CHAPTER III. THE CENTRAL ASSEMBLY. Central Assembly. Witena- gemot. A. The Witenagemot. The assembly of Witan, or wise men, grew out of the old tribal assembly mentioned by Tacitus 1 , and was the governing body of the nation under the Anglo-Saxon Kings. As Wessex established her supremacy, the folkmoots of the once independent tribes ' shrank into the shire courts of later times V while their witenagemots were absorbed in the West- Saxon assembly, and the latter became the National Council. It is a question whether the right of attendance at the Witena- gemot was confined to those of higher rank 3 , or whether it was, in theory at least, open to all freemen 4 . It is possible that there was x\o t legal limitation of the right, for we find meetings of the Witan held in London, and Winchester, attended by the citizens ; but, however popular its constitution in theory, the difficulties of travelling, and the small weight attaching to the voice of an unknown freeman, caused it to assume in practice that aristocratic and non-representative character which is presupposed by the very name 5 ( Witan) ; Composition. The meetings, which were usually held twice a year at various places, such as Oxford 1035, Gloucester 105 1 (nearer the Norman Conquest three times, i. e. at Easter, Whitsuntide, and Christmas), were attended by members of the Royal Family, the archbishops, bishops, abbots, ealdormen, and the King's 1 Sel. Charters, 56. ■ Const. Essays, p. 6. 8 Dr. Stubbs' theory. * Professor Freeman's theory. 5 Thus reversing the statement of Tacitus : — ' de minoiibus rebus principes consultant, de majoribus omnes.' THE CENTRAL ASSEMBLY. 93 thegns 1 , the numbers varying from twenty to a hundred*. In a Witenagemot held at Winchester, 934, which may be taken as a fair type of ordinary meetings, there were . present the King, four Welsh Kings, two archbishops, seven- teen bishops, four abbots, twelve ealdormen, and fifty-two thegns ; that this assembly is said to have promulgated a law totd populi generalitate, is a proof that the Witan were regarded as representing the feeling of the nation, though they were in no way representatives in the modern acceptance of the term 3 . Members of the Witenagemot received, by a law of Ethelbert, circ. 600, a special protection whilst on their way to and from the meetings 4 (p. 103). The powers of the Witan, though theoretically enormous, Power* were practically greatly limited by a King of strong character, who, supported as he always was by his thegns, could lead them as he chose. The Witan in theory- - (1) Elected the King, and had power to pass over unfit persons (p. 7). (2) Could depose the King for misgovemment (p. 13). (3) Consented to grants oifolcland (p. 204). (4) Declared war, and assented to treaties ; e.g. the Peace of Wedmore, 878, was made by King Alfred and King Guthrum, and the Witan of all the English nation 5 . (5) Taxes were levied, and laws made, with their counsel and consent ; e.g. ■ I then, Alfred, King of the West Saxons, showed these laws to all my Witan, and they said that it seemed good to them all to be holden V (6) In conjunction with the King, they appointed, and removed, the great officers of state, both secular and ecclesiastical. (7) Regulated ecclesiastical matters, e.g. tithes (p. 300). 1 Women were admitted to the meetings, e.g. the King's mother ; and abbesses were sometimes present. 2 The largest number, as given by Mr. Kemble, is 106. 3 Kemble, Saxons in England. 4 Sel. Charters, 61. s Ibid. 63. • Ibid. 6a. 94 CHAPTER III. (8) Raised, and superintended, defences of the realm (P- 3<>5)- (9) Formed a Court of Final Appeal (p. 89), and dealt with powerful offenders, who could be reached by no other means. They often exercised the power of outlawry, e.g. Sweyn, and Godwin, 1051. The Great J$. THE GREAT COUNCIL. Council. Under the Norman Kings, the Witenagemot became the Great Council [Magnum, or Commune Concilium), a feudal court attended by the tenants in chief. In theory, all the holders of land were entitled to attend, but they appeared Composition, only on very rare occasions, as at Salisbury, 1086; practi- cally its members were the magnates; including the bishops, who, until the Constitutions of- Clarendon declared them members by tenure of barony, still sat as wise men. Under William I it met thrice a year, but though, theoretically, its powers were as great as those of the Witenagemot had been, the despotism of the Norman Kings caused its assent to legislation and taxation to be merely formal. As a Court of Justice it tried offenders of rank, e.g. Waltheof, 1076, though many of its judicial functions were performed by its Com- mittee, the Curia Regis (p. 57). It continued, like the Witenagemot, to elect the King, e.g. William Rums. Henry I, its Feudal Stephen, Henry II. Under Henry II, its feudal character was complete ; it was attended by archbishops, bishops, abbots (all by tenure of barony), earls, barons, knights, and tenants in chief; on special occasions, e.g. at the Assize of Clarendon, 1166, all the tenants in chief appeared, whilst, in theory, the members were still all the landowners. The place of meeting varied as convenience suggested. Henry II summoned the National Council two or three times every year for general deliberation, and all the legislation of the period was with its counsel and consent. Previous to 1163 we have no record of any attempt to oppose the royal wishes, but in that year Becket resisted the King on a question of taxation, and seems to have gained his point. Henry also contrived to limit the numbers of the Council by issuing THE CENTRAL ASSEMBLY. 95 special summonses addressed to individuals, by which ex- pedient he was enabled to introduce judges, and lawyers, who had not the qualification of tenure. By Magna Carta, it was provided that the archbishops, abbots, bishops, earls, and greater barons should be summoned ' by writ directed to each severally,' and all other tenants in capite by a general writ addressed to the Sheriff of the shire ; forty days' notice of the time, place, and cause of meeting was to be given, and the vote of those present was to bind the absent. Under John, Powers /««/. and Henry III, the powers of the Great Council in taxation, legislation, and deliberation increased largely, and its power at the time of Edward I's organisation was a real one. C. Parliament 1 . Parliament. The idea of representation, which had long been familiar idea of to the people for other purposes, became gradually connected lio™^ with the central assembly. In 12 13, representatives from the towns on the royal estates attended the great meeting at St. Albans, and in the same year, the King summoned ' four discreet men' from each shire, to meet him at Oxford l ad loquendum nobiscum de negotiis regni nos/ri 2 ' ; from this time the representative system gradually developes (p. 1 30), though Parliaments were frequently held to which representatives were not summoned at all, or were summoned imperfectly (see House of Commons), In 1295, however, assembled the famous ■ Model' Parliament, the precedent of which has been 'Model* Par- followed ever since. A personal writ of summons was sent to archbishops, bishops, abbots, earls, and barons; the priors of every cathedral, and the archdeacons of each diocese, were directed to appear in person, by writs sent through the bishops ; the chapter of each cathedral was to send one representative, the parochial clergy of each diocese were to send two representatives; two knights from each shire, two citizens from each city, and borough, were also to be sent, with full powers, on behalf of their constituents, ' ad faciendum 1 The name was first applied to the National Council by Matthew Paris 1246. Sel. Charters, 328. 2 Sel. Charters, 287. 9 6 CHAPTER III. quod tunc de communi conciho ordinabitur^? This Parliament was thus an assembly of the estates of the constituent classes of society, as well as representative of local interests, and the English Parliament has ever since combined a union of the two principles of class and local representation 2 . To Edward I the organisation of our Parliament on a national basis is due 3 ; temp. Edward III the division into two Houses took place ; the knights of the shire, who at first sat with the barons, gradually drew off from them towards the burgesses, Division into owing to community of interests (p. 135), and in 1333, the division had definitely taken place ; from this reign, too, the attendance of the clergy grew irregular (owing to their pre- ference for Convocation, p. 296), and in the fourteenth century, ceased altogether (except in the case of the spiritual peers), the main body of the clergy being represented by the members of the Lower House, whom they had joined in electing 4 ; by this action of the clergy, England has had two legislative Houses only instead of three, and Parliament has thus attained a strength, and unity of organisation, denied to the assemblies of other countries. The Powers of Parliament grew rapidly from 1295, especially the powers of the Lower House (pp. 114, sq.). They were : — (a) Taxative. The acknowledgment of the fact that all who paid taxes ought to be consulted about the levying of them. In 1297 {Confirmatio Car/arum), and 1300 {Articuli super cartas), Edward I surrendered the power of arbitrary Bicameral system in England. Powers of Parliament Taxative. 1 Sel. Charters, 486. 2 The institution of the House of Commons marked the extinction of the ancient feudal idea that the Council of the King was merely the assembly of those who held their land under him. Stubbs, Early Plantagenets, p. 227. 3 ' 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 had sprung, and claiming to take part in the settlement of all questions in which the nation was concerned.' 4 In spite of this, the writs addressed to the spiritual peers still contain the clause summoning the lower clergy to Parliament. See Anson, i. 52. THE CENTRAL ASSEMBLY. 97 taxation, whilst the two illegal methods of raising money by tallage on the royal demesne, and by levying import duties by special agreement with the merchants, were given up by Edward III in 1340, and 1362 (p. 192). (6) Legislative. The necessity of the concurrence of both Legislative. Houses in legislation was recognised in 1322, when it was declared that matters concerning the whole realm * shall be treated, accorded, and established in Parliament by our lord the King, and by the assent of prelates, earls, and barons, and the commonalty of the realm V Parliament has the supreme power of legislation, except over the Colonies, which are either, as in the case of conquered Colonies, governed by the King in Council, or have legislatures of their own. (c) Judicial, vested in the Lords alone, by a declaration of Judicial. 1399. (See Appellate Jurisdiction, p. 89, Impeachment, pp. 150, sq.). (d) Deliberative. Parliament was frequently consulted by Edward III, on Deliberative questions of peace and war. It frequently asserted its power to alter the succession (p. 13), and to appoint regencies (p. 29) on the occasion of the King's infancy or infirmity, and its power is clearly marked by the anxiety of Kings to obtain a Parliamentary title, whilst even Henry VIII was eager to win its sanction to his arbitrary measures. Summons, Duration, and Dissolution of Parlia- Summons 7 and Dura- ment. tjon of Par- It is the King's prerogative to summon Parliament, which is opened either by the Sovereign in person, or by com- mission under the Great Seal, a royal speech being made, or read, on the occasion. The only instances of Parliament meeting by its own authority were the Convention Parliaments of 1660, and 1688, both of which were subsequently legalised by Acts of Parliament. In January, 1789, and January, 181 1, on the occasion of George Ill's insanity, the Parliament was 1 It seems almost certain, however, that from time to time statutes or ordinances were passed by the King at the request of the clergy, and without the assent of the Commons. Stubbs, ii. 595. 9» CHAPTER III. Omission to summon Parliament. Annual Parliaments. Long inter- missions. First Tri- ennial Act, 1 641. Second Triennial Act, 1664. opened by commission, to which the Great Seal was affixed by the Chancellor on the resolution of both Houses. In former times, it often happened that a King omitted to summon Parliament, especially if rich enough to dispense with supplies, and one of the Ordinances of 131 1 is to the effect that Parliaments shall be held once or twice a year l , whilst statutes were passed, 1330 (4 Ed. Ill, c. 14), and 1362, to the effect that Parliament should be held annually, or oftener if need be, for the redress of grievances. By the statute of 1330, it was provided that this annual Parliament need not be a new one 2 ; there was also a petition on the subject presented by the Commons, 1376. Notwithstanding this legislation, there were frequently long intermissions, e.g. from 1474 to 1483 there was only one Parliament (sitting for forty- two days, 1478) ; during the last thirteen years of Henry VII, there was only one, 1504. In Henry VIII's reign, Parlia- ment only met once between 15 15 and 1528, and under James I only once from 1611 to 1621, while Charles I ruled for eleven years (1629-1640) without summoning the national representatives. The Long Parliament determined to render such a long intermission of parliamentary life impossible for the future, and in February, 1641, passed the Triennial Act (16 Car. I, c. 1), which provided that, if the King failed to call a parliament for three years, the Chancellor, or failing him the peers, or in the event of their neglect, the sheriffs and mayors might issue writs, and if all failed to perform this duty, the electors might proceed to choose representatives ; the new Parliament was not to be prorogued for fifty days after meeting, except with its own consent. The Act, which had been already infringed by the Long Parliament itself, was repealed in 1664 (by 16 Car. II, c. 1, which, however, provided that Parliament must not be intermitted more than three years), and the 'Pensionary Parliament ' sat for seventeen years. By the Bill of Rights, 1 By the Provisions of Oxford, 1 258, what was at that time the nucleus of Parliament was to meet three times a year. 2 As a matter of fact, however, Parliaments continued to be elected annually with rare exceptions until Henry VIII. THE CENTRAL ASSEMBLY. 99 1689, it was declared that ■ for the redress of grievances, and for the amending, strengthening, and preserving of the laws, Parliament ought to be held frequently,' and in 1694, William III gave his consent, which he had withheld in the previous year, to a Triennial Bill (6 & 7 Wm. & Mar. c. 2). Third Tri- , .. ',.,,. V . . ' ennialAct, In May, 17 16, the limit of three years was increased to seven, 1694. by the Septennial Act (1 Geo. I, St. 2, c. 28); this measure, Septennial though dangerous as the act of a body prolonging its own ° ' 1?l ' existence, was necessary at the time owing to the disturbed state of the country, and has since been found beneficial, though motions have occasionally been made for its repeal, e.g. Sir Francis Burdett, 1818, advocated annual Parliaments; Mr. O'Connell, 1830, triennial Parliaments. Formal motions were made for its repeal by Sir Robert Heron, 18 18; by Mr. Tennyson, 1833, 1834, 1837; by Mr. Crawford, 1843; and by Sir Walter Foster, 1892, but were lost by large majorities. In 1878 Mr. Holms introduced a Bill to limit the duration of Parliaments to 'five years and no longer': it was however withdrawn without debate. At first, Parliament used to sit until dissolved by the King, except in the event of the demise of the Crown 1 , but by an Act of 1696 (7 & 8 Wm. Ill, c. 15), in force until 1867, Parliament was to sit for six months after the death of the Sovereign, and by an Act of 1797 (37 Geo. Ill, c. 127), if the King died after Parliament was dissolved, and before a new one was elected, the old one was revived for six months. By the Representation of the People Act, 1867 (30 & 31 Vic. c. 102, s. 51) no dissolution of Parliament is necessary in future demises of the Crown. At the present day, an annual session of Parliament is necessary to vote, and appropriate, supplies, and to renew the Mutiny Act (p. 316). Relations of Parliament to the Crown from 1295. Relations of Temp. Edward I. The Crown comes into collision with to' the Parliament on the subject of taxation (p. 18). Edward is Edward 1. obliged to issue the Confirmatio Cartarum (1297), the 1 The Long Parliament, however, was not dissolved at the death of Charles I, nor was the Parliament of James II after his abdication. H 2 IOO CHAPTER III. Ariiculi Super Cartas (1300), and the Confirmation of the Charters at Lincoln (1301). Edward II. Temp. Edward II. Parliament, acting more immediately through the Baronage, appoints the twenty-one Lords Ordainers as a Committee of Reform, 13 10, and in January, 1327, deposes the King as 'incompetent to govern,' at the same time renouncing its allegiance (p. 13). Edward in. Temp. Edward III. Parliament, and especially the Lower House, consolidates its power ; the King has to acknowledge the illegality of arbitrary taxation (1340, 1362), and the necessity of the concurrence of the two Houses in legislation established in 1322 is confirmed. Richard ii. Temp. Richard II. Parliament appoints a Committee of Regency, 1377, and a Committee of Reform, 1386; this is declared illegal by the judges when consulted by the King. In 1397, Richard violates Parliamentary privilege by his prosecution of Haxey (p. 106). The Parliament, which was probably packed, and possibly intimidated by the presence of troops, proves extremely servile, and grants the King a revenue for life. In 1398, the power of Parliament (sitting at Shrewsbury), is delegated to eighteen Commissioners (twelve peers and six commoners); these Commissioners were creatures of the King, whose absolutism grows so intolerable that on Sept. 29, 1399, he is forced to resign, and is formally deposed by the Parliament as 'useless and incompetent' (p. 13). Henry iv. Temp. Henry IV. Distrust of the King is shown by a request (1404, 1406, 141 o) that the King's Council should be nominated in Parliament (p. 39), and in 1401 was established the rule that the King must not take notice of matters pending in Parlia- ment until a decision has been arrived at, and the matter formally brought before him. In 1406 the King accepts a petition of thirty-one articles \ hardly inferior to the Petition of Right 1 .' Henry v. Temp. Henry V. The relations between the King and Parliament were most cordial; the King agreeing, in 1414, 1 Hallam, Mid. Ages, iii. 95. THE CENTRAL ASSEMBLY. IOI , that statutes should be made ' without alteration of the *. .» - . ' petitions on which they were based/ Temp. Henry VI. The Commission of Regency named Henry vi. by Parliament, 1422, to govern during the infancy of the King, who was only nine months old at his accession. From this reign the legislative power of the Crown is confined to a formal approval or rejection of measures framed by Parliament. Temp. Edward IV. ' The first Government under which Edward iv. no single statute was passed for the protection of personal liberty and for the redress of national grievances V Parlia- ment is unimportant, and its records ' mere registers of private bills and petitions of trade.' Temp. Richard III. Parliament is rarely summoned, and Richard in. 1 showed activity only in the matter of penal prosecutions and private bills 2 / Under the Tudors, Parliament is at first entirely subject to Tudors. the King; it is rarely summoned by Henry VII, or during the first part of the reign of Henry VIII. Henry VIII, Henry vm. however, indirectly acknowledges the power of Parliament in the State by seeking to obtain its sanction to his arbitrary acts, and in 1539 Parliament declares that the King's pro- clamations have the force of law (repealed 1547). After Edward VI, the Parliament gradually begins to reassert itself, and the Commons come into collision with Elizabeth on Elizabeth, several occasions, e.g. on the question of the Queen's marriage and the settlement of the succession, 1566; on ecclesiastical matters, 1571, 1593 {Strickland 's Case and M or ice's Case, pp. 107, 108); and on Monopolies (p. 201), 1601. Under the Stuarts, Parliament gradually becomes more The dissatisfied and more rebellious, and is in perpetual collision with the King (who tries ineffectually to govern without it), James 1. e.g. the Remonstrance against the Book of Rates (p. 192), he abuse of Proclamations (p. 170), and of the High Com- mission Court, 1 610 (p. 55); the imprisonment of members by the King, 16 14; the Great Protest against the violation of the liberties of Parliament, torn out of the journals of the 1 Gneist, ii. 78, note. * Ibid. 79. i-0% CHAPTER III. Ho\i3e by" the King himself, Dec. 1621 (p. 108); the viola- Charies I. tion of liberties by Charles I, leading to the Petition of Right, 1628; the Grand Remonstrance, Nov. 1641 ; the supremacy of the Parliament, and the death of the King. Charles ii. At the Restoration, the power of the House of Commons had become very great. But the reaction in favour of monarchy, the creation of rotten boroughs, the bribery of members and the remodelling of the borough corporations enabled the Crown to retain its control over Parliament. james 11. However, the bigoted policy of James estranged all parties, and resulted in the Revolution of 1688. William in. Under William III, the Bill of Rights (App. A) contains several provisions for the limitation of the prerogative, and the increase of the power and independence of Parliament, though the King three times asserted his right to refuse his Anne. assent to obnoxious bills. Under Anne occurred the last instance of the royal assent being refused to a bill, i.e. to the Scotch Militia Bill, 1707 (p. 169). The first two TheHano- Hanoverian Kings had little influence over Parliament; Georgein. George III, however, made several attempts to assert the supremacy of the Crown, and endeavoured to control Parliament both by bribery (p. 142) and coercion. In 1763-4 several members of the Commons were deprived of pensions, and commissions, for voting against the King, and in 1770, George actually declared that he would have recourse to the sword ' rather than yield to a dissolution of Parliament.' In 1780, Mr. Dunning carried, by 233 to 215, his famous motion that 'the power of the crown has increased, is increasing, and ought to be diminished.' Since the Reform Act of 1832 (2 & 3 Wm. IV, c. 45) (p. 145) the relations of the Crown and Parliament have been most cordial, and indeed, since the Revolution of 1688, the development of ministerial government has rendered any serious collision between the two impossible ; it is now the established maxim that ' the King can do no wrong ' ; * the King reigns, but the Ministers govern' (see Party Govern- menty p. 147). THE CENTRAL ASSEMBLY. 103 Privilege of Parliament. Privilege of Parliament. A. Common to both Houses. Common to 1. Freedom from arrest and molestation, originating in p°^^ ses ' a law of Ethelbert, arc. 600 ', and, for long, necessary to from Arrest, secure the personal safety of members on their way to and from Parliament, extended formerly to members, their servants, and their goods. Though valid against all civil process, this privilege did not apply to cases of treason, felony, or breach of the peace; its duration is from forty days before to forty days after the session, in the case of a member of the lower House ; in the case of a peer it is valid ■ during the usual times of privilege of Parliament.' The privilege, as extended to the servants of members, was so much abused that in 1770 (10 Geo. Ill, c. 50) it was confined to the persons of members themselves, and by the same Act actions might be commenced at any time against members, or their servants. It had previously been found necessary to curtail the application of the privilege in certain cases by 12 & 13 Wm. Ill, c. 3, 1701 ; 2 & 3 Anne, c. 18, 1704; and n Geo. II, c. 24, 1738. In 32 Hen. VI, the judges refused to give an opinion as to the ' extent of the personal privileges of the High Court of Parliament/ Historical illustrations and instances — instances. 1200. Edward I refused to allow the Master of the Master of the Temple, 1290. Temple to distrain for the rent of a house held of him by the Bishop of St. David's, as 'not fitting in time of Parliament.' 1 315. Edward II declared the arrest of the Prior . y ' l6 ° 3 demanded his release, which was refused by the Warden of the Fleet, who feared that he would become liable for his prisoner's debt. The Warden was committed for contempt, but would not give up Shirley until the King interfered. An Act was consequently passed in 1604 (1 Jac. I, c. 13), which provided that those who had the custody of a member of Parliament, released by privilege, should not be liable to his creditors, or subject to an action for escape, and that a new writ of execution might be sued out by the creditor at the expiration of the privileged period ; this statute gave a legal recognition to the privilege of freedom from arrest, and to the right of Parliament to release privileged persons, and punish those to whom the arrest is due. 1625. Earl of Arundel, imprisoned by order of Charles I, Earl of for allowing his son to marry a lady of royal blood without J25. e ' the King's permission; the Lords denied the legality of the imprisonment of a member of their body, by any other authority than that of the House, except for treason, felony, or breach of the peace ; and the King had to give way. In Jan. 1642, the attempted arrest of the Five Members FiveMem- (Hampden, Sir Arthur Hasilrigge, Denzil Holies, Pym, and bers ' l642- William Strode) by the King precipitated the crisis; the Commons declared the King's action a breach of privilege and his conduct ' false, scandalous and illegal.' This privilege does not necessarily extend to the offence of Contempt of ' Court. io6 CHAPTER III. Contempt of Court; in 1572, Lord Cromwell, arrested for contempt, was released by the Lords, who, however, declared that the case was not to be a precedent; in 1757, the Lords declared that privilege did not cover the refusal to obey a writ of Habeas Corpus ; in later times Parliament has not interfered in the case of members punished for Contempt of Court, e.g. Mr. Wellesley 1831, Mr. Charlton 1837, Mr. Whalley 1874, though its right to do so, if necessary, is retained. In 1 763 the Commons held, in the case of Wilkes, that seditious libel was not covered by privilege. Considerable limitations were placed on the extent of this privilege by the statute of 1770 (10 Geo. Ill, c. 50). It enacted that a suit might be commenced and prosecuted at any time against a member or his servant : that no process was to be stayed by reason of privilege, and that only the persons of members should be free from arrest and imprisonment \ Thus at the present day neither the servants nor the goods of members are protected by Parliamentary privilege, and in cases of treason, felony, breach of the peace, seditious libel or bankruptcy 2 , it cannot be pleaded by members themselves. 2. Freedom of speech and debate existed from very early times, and has been frequently confirmed by legislative and judicial sanction. The violation of the privilege was foreshadowed in the arrest of Henry Keighley, the Speaker, 1301, for presenting articles of reform to Edward I ; and in the imprisonment of Peter de la Mare, 1376, by John of Gaunt, for his conduct as Speaker of the Good Parliament. In 1397, Sir Thomas Haxey was imprisoned, by order of Richard II, and found guilty of treason, for having introduced a Bill to regulate the expenses of the royal household; the proceedings against him were reversed in 1399, by Henry IV, 1 Anson, i. 145. 8 The Bankruptcy Act of 1883 disqualifies a bankrupt for sitting or voting in either House, or serving on any Parliamentary Committee, but the Act of 1890 limits such disqualification to a period of five years from the date of his discharge. THE CENTRAL ASSEMBLY. 107 and the Lords, and the privilege of freedom of discussion was expressly recognised; being again confirmed in 1407. In 1 45 1, Thomas Young was imprisoned for introducing Thomas a motion to declare the Duke of York heir to the Crown ; having complained to the Comtnons of his arrest on a favourable opportunity, 1455, when the Duke of York was Protector, the case was referred to the Lords, and reasonable compensation was decreed by the King. 1 51 2. Richard Strode, having moved for the regulation of Richard the tin mines in Cornwall, was proceeded against in the Stannary Court (p. 66), fined, and imprisoned; he was released by writ of privilege, and an Act passed, 4 Hen. VIII, c. 8, declaring all suits in consequence of words spoken in Parliament void. From 1 54 1, the privileges of free discussion, free access to the King *, and freedom from arrest, were formally claimed by the Speaker at the commencement of each Parliament, and were formally recognised by the Sovereign. Elizabeth, however, frequently violated the rights; in 1566, Elizabeth's she forbade the settlement of the succession to be discussed, but had to withdraw the prohibition, on its being moved contrary to privilege by Paul Wentworth. On the Speaker making the usual claim for liberty of speech in 1571, he was told by Sir Nicholas Bacon, the Lord Keeper, that it was the Queen's will that the Commons should 'meddle with no matters of State but such as were propounded to them,' and Mr. Strickland, having introduced bills for Mr. Strick- ecclesiastical reforms, was forbidden by Elizabeth to attend an ' 15?I ' Parliament. Christopher Felverton, however, a celebrated lawyer, successfully maintained that this was a breach of privilege, and the Queen was forced to give way in the same Session. In the same year Mr. Bell was summoned before Mr. Bell, the Council for introducing the subject of monopolies. In I571 ' 1588, Mr. Cope was imprisoned by the Queen for advocating Mr. Cope, ecclesiastical reform, and at the same time Peter Wentworth L 5 ' „, ' Peter Went- was sent to the Tower for demanding whether a member worth » *sM- 1 Freedom of access was first claimed in 1536. Stubbs, iii. 455 note. 108 CHAPTER III. might not discuss points of grievance freely and without danger. Sir Edward In 1 589, Sir Edward Hobby was reprimanded for intro- y ' I5 9 ' ducing a bill to prevent various exactions made by the officers of the Exchequer. In 1593, Lord Keeper Pickering, in answer to the usual demand by the Speaker, for freedom of debate, replied, on the Queen's behalf, that the privilege of the House consisted in saying aye or no, and was not \ to speak every one what he listeth, or what cometh in his brain to utter/ In the same year Peter Wentworth, and sirH.Brom- Sir Henry Bromley, were imprisoned for a petition on the Morice, 1593. succession, and Morice, a lawyer, for a Bill for the reform of the Ecclesiastical Courts. Thos Went- 1614. Thomas Wentworth, Christopher Neville, and Sir worth and x others, 1614. Walter Chute were imprisoned for words spoken in the House, and other members were dismissed from the Com- mission of the Peace. iand d s W1 i62i 1 62 1. James I committed Sir Edwin Sandys, ostensibly for speeches in the House, forbade the House to meddle with the mysteries of State, and declared that the privileges of Parliament were derived from 'the grace and permission of his ancestors.' In Dec. 1621 the Commons drew up Protest of a Protest that freedom of debate is necessary to treat 'the arduous and urgent' affairs of the State; in consequence of this, James dissolved Parliament, tore the Protest out of the journals with his own hand, and imprisoned Sir Edward Coke, Sir Robert Philipps, Mr. Pym, and Mr. Selden. Sir John In 1 629, Sir John Eliot, Denzil Holies, and Benjamin others, 1629. Valentine were imprisoned by the King's Bench for seditious speeches in Parliament and for an assault on the Speaker, and Strode s Act was declared to apply only to his particular case; these proceedings were reversed by an Act of 1667, which made Strode 's Act general ; the judgment of the King's Bench was also formally reversed by the Lords, on a writ of error, 1688. By the Bill 0/ Rights it is declared that 'the freedom of speech and debates, or proceedings in Parliament, ought not to be impeached, or questioned, in THE CENTRAL ASSEMBLY. 109 any Court or place out of Parliament/ From this time, interference with liberty of speech was indirect, e.g. the cancelling of the commission of General Conway, who, in 1764, voted against the government on the question of General Warrants (p. 243), and the dismissal of Col. Barrt, Adjutant General, in 1763. Burke tells us that 'the dangerous and unconstitutional practice of removing mili- tary officers for their votes in Parliament ' was abolished by the Rockingham ministry of 1765 \ Z- Seer esy of Debate. dSX * In early times, it was very important that the King should not know what was being debated. The Long Parliament of 1641 was the first to prohibit the Publication r of Debates. printing of speeches without the leave of the House, and Sir E. Dering was expelled and imprisoned for failing to comply with this rule. It however permitted its proceedings to be published under the title ' Diurnal Occurrences in Parliament/ In 1680, votes and proceedings were ordered to be printed under the direction of the Speaker, and in spite of the pro- hibition, reports of debates frequently appeared. These were necessarily very imperfect, since notes had to be taken by stealth. After the Revolution, Parliament made frequent attempts to restrain the publication of debates, and in 1738 char- acterised it as a ' notorious breach of privilege ' and resolved to deal sternly with offenders 2 . However, the practice still continued, the reporters being careful to suppress the speakers' names, or to attribute their speeches to characters in Roman history. Had the reports been impartial, Parliament would - probably have been less anxious to assert its privileges. But this was by no means the case. Speakers were wilfully misrepresented, offensive epithets were attached to their names, and their arguments were often perverted or sup- pressed. In 1 77 1, the names of the speakers having been given in several papers, a complaint was made to the House by Col. Onslow ; and six printers were summoned to appear 1 Anson, i. 149. a May, ii. 36. Anson, i. 152. IIO CHAPTER III. Miller's case, before the House : one, by name Miller, failed to attend, and 1771. was arrested by a messenger, who was in his turn arrested for assault, and both were brought before Lord Mayor Crosby, and Aldermen Oliver, and Wilkes, the latter of whom was encouraging the resistance of the printers to Parliamentary privileges by every means in his power ; the magistrates dis- charged Miller, and committed the messenger ; for this, they were sent to the Tower by the House, though in the face of popular opinion. This was the last occasion on which the House of Commons asserted this privilege, and from this time the publication of debates has been permitted. In theory however, it is still a breach of privilege, and liable at 5ste Si ° n an y moment t0 t> e forbidden. The publication of division lists was declared a breach of privilege 1696, but they have been regularly published by the Commons since 1836, and by the WaitS"' Lords since 1857. 1° 1868, in the case Wason v. Walter, the right of a newspaper to publish fair reports of debates was established (see Libel, p. 245). Exclusion of Exclusion of Strang ers was at first very strict, owing to the fear that a stranger might inform the King of the proceedings in Parliament. After the Restoration, the rule was somewhat relaxed, though strangers could be excluded on the motion of one member; in 1770, they were excluded from the Lords, during a discussion on the impending war with Spain, on grounds of expediency ; they were frequently excluded from Parliament during the American war, thus interrupting the report of debates. In 1845 strangers were allowed to be present in the galleries, and since 1875 can only be excluded by a resolution of the House. Freedom of 4 Freedom of access to the Sovereign. access to the J ° , Sovereign. The Peers, as hereditary counsellors of the Crown, enjoy an individual right of access at any moment ; the Commons have only a collective right through the Speaker. This privi- lege, which is of very early origin, has since 1541 always been claimed by the Speaker, together with those of freedom from arrest, and of debate (p. 107, note). con^mction. 5- The Sovereign is bound to put the most favourable con- THE CENTRAL ASSEMBLY. Ill strucfion 1 on everything done in Parliament, and can take notice of nothing pending in Parliament until a decision has been arrived at, and the matter brought officially before him, (1401). 6. Right of deciding Contested Elections. Ekcdonf In the mediaeval period the House of Commons made no (^ Decided claim to examine disputed returns. 'Until the Act of 1406, b y Crown > the Sheriff had to return the writ in full Parliament, and the King in or out of Parliament, took direct cognisance of com- plaints 2 .' By the statute of that year, writs were to be returned to Chancery, and by an Act of 1410, the justices of assize were empowered to examine undue returns. But it would still seem to be for the King, with the help of the Lords or the judges, to settle the validity of a return. The chief cases are in 13 19, when Sir W. Martin, a duly elected knight of the shire of Devon, complained to the Council that another name had been substituted by the Vice-Sheriff in the return ; in 1362, a dispute about the Lancashire election was settled by the King. In 1384, a petition was presented by the borough of Shaftesbury to the Kings, Lords, and Commons, com- plaining that the Sheriff of Dorsetshire had made a false return by substituting the name Thomas Camel for Thomas Seward. In 1404, the Commons demanded an inquiry into an alleged false return by the Sheriff of Rutland ; the Lords held the inquiry, and declared Thomas Thorpe, for whom the Sheriff had substituted William Ondeby, duly elected. In the reign of Elizabeth, the Commons asserted their right to decide disputed cases. In 1553, a committee of the Lower House had declared ( 2 ) b y House _ . . .«»•«. of Commons, Dr. Nowell incapable of sitting in Parliament, and in 1586, 1586. in spite of the Queen's prohibition, the House of Commons settled the case of a disputed return for the county of Norfolk. 1604. James I arrogated to himself power over elections, 1 This, says May, ' is not a constitutional right, but a personal courtesy ' — Parliamentary Practice, p. 59. 3 Stubbs, iii. 423. 113 CHAPTER III. even so far as to decide what kind of man should be chosen. Goodwin's The electors of Buckinghamshire returned Sir Francis Good- 1 ° 4 ' win, an outlaw ; James had a second writ issued, and Sir John Fortescue was elected ; the Commons, however, declared Goodwin's election valid, but after much pressure, consented to confer with the judges. In the end the King admitted the claim of the Commons to be a judge of returns, but claimed a corresponding jurisdiction for the Chancery; eventually the matterwas settled bya compromise, the previous elections being regarded as void, and a new writ issued. The right of the Commons was never afterwards called in question, nor that of Chancery asserted ! : it was further legally recognised in 1674, in the case of Barnardiston v. Soame, in Onslow's case 1 680, and in Prideaux v. Morris 1702, as well as by a statute of 1696. Barnardiston l n 1674, the Sheriff of Suffolk. Soame by name, made a v. Soame, * ^ J 1674. double return for the county, upon which Barnardiston, one of those returned, sued the Sheriff for damages, and obtained a verdict ; this verdict was quashed, on a writ of error, both by the Court of Exchequer Chamber, and by the House of Lords, but the Commons nevertheless committed Soame for making the double return. In 1696, the illegality of a double return was declared by statute, ' but the practice of making such returns is sanctioned by the law and usage of Parliament 2 .' Thus in 1878, the Sheriff made a double return for South Northumberland. From 1672, the Commons decided all election questions by Committees of the whole House ; the right was much abused for party purposes, and in 1770, Grenviiie's Grenville's Act (10 Geo. Ill, c. 16) transferred the settlement of controverted elections to a Select Committee of thirteen sworn members, selected by the sitting members and the petitioners, from forty-nine chosen by ballot ; to these thirteen, each side then added one nominee; it was found possible, however, to influence the construction of the Committee, and the abuses continued. By an Act of Peel's Act, Sir Robert Peel, 1839, the Committee was reduced to six, and afterwards to five, nominated by a general Committee 1 Anson, i. 159. 2 May, Parliamentary Practice, p. 165. THE CENTRAL ASSEMBLY. 113 of Elections. In 1868, the right was surrendered by the Commons (31 & 32 Vic. c. 125), and vested in the common law judges, an Act of 1880 (42 & 43 Vic. c. 75), providing that cases must be tried by two judges ; the Peers, however, still retain the privilege. In 1 702-4, in the cases of Ashby v. White, and of the Ayles- Ashby ?>. bury men, the Commons claimed the privilege of determin- 1702-4. ing the rights of electors, as well as of deciding contested elections; this led to a quarrel between the Lords and the Commons, the Upper House condemning the conduct of the Lower in committing the Aylesbury burgesses for bringing actions against the returning officer ; the dispute was ended by a prorogation, though the question was left undecided (App.B). 7. Right of settling the order of business in their respective Right of de- • 1 t» • tt 1 1 tei mining the Houses. The question arose under Richard II,, when the order of judges declared that this right did belong to Parliament. It was formerly important, as, if it had belonged to the Crown, the King might have obtained his supplies at the opening of the Session, and then dissolved. B. Special privileges of the Lords. SpedaiPrivi- 1. Voting by proxy. In early times this right was granted \^\Z ' by licence from the King, and, up to the 17th century, Peers Voting by were often represented by men who were not members of the House ; but from that time the proxy of a temporal Peer could only be given to another temporal Peer, and that of a spiritual Peer to a spiritual Peer, whilst the number of proxies to be held by any one individual was restricted to two. The right was given up in 1868, as it was found to encourage Peers to absent themselves from Parliament. 2. Right of dissentients to record a protest against any Act, Protests, in the journals of the House. The general practice of protests 1 by the Lords dates from the 17th century 2 , but earlier instances may be found in the protests of the lords spiritual against the Statutes of Provisors and Praemunire. 1 A standing order of the House of Commons could confer this right on the members of the Lower House ; Anson, i. 22 1 . 2 Stubbs, iii. 489. Writ of Summons 114 CHAPTER III. Peerage 3. Rights of originating Bills concerning the Peerage, such as the restitution of honours. 4. Every member of the House of Lords is entitled to receive his writ of summons. Settled by Lord Bristol's case (Feb. 1626), to whom a writ was refused by Charles I. The Peers, however, would not sit without him, and the King had to send the writ, though he privately forbade the Earl to obey it. Trial by 5. All Peers, except spiritual Peers l , have the right of being tried by their Peers in cases of treason and felony ; the trial is by the whole House if sitting ; if not sitting, by the Court of the Lord High Steward (p. 65). On a charge of misdemeanor a Peer is tried by an ordinary jury. Privileges C. Privileges peculiar to the Commons. peculiar to ^ the Com- Bowers over money. Money Bills. ( T ) The jight of originating all Money Bills. This was established as early as the reign of Richard II, and formally recognised 1407, when the Lords named certain subsidies as necessary for the defence of the kingdom, and the Commons declared their action a breach of privilege. In 1593, a suggestion of the Lords that three subsidies should be granted to the Queen, called forth considerable hostility from the Commons, and in 1625 they began the practice of omitting the name of the Lords from the preamble of Bills of supply. In 1640, at a conference of the two Houses, the Commons maintained their sole right to originate money grants, and in 1661 refused to assent to a Bill for paving the streets of Westminster, which had begun in the Lords, on the ground that, as it laid a charge on the people, it ought to have originated with them. By degrees, the Commons increased their privilege by establishing that the Lords could not amend a Money Bill in any way, but had only the power of acceptance or refusal. In 1671, the Lords having altered the rate of duty on sugar, the Commons resolved ' that in all aids given to the King by the Commons, 1 In 1 341, however, the Lords held that John Stratford, Archbishop of Canterbury, must be tried by his Peers. THE CENTRAL ASSEMBLY. 115 the rate or tax ought not to be altered by the Lords 1 / and in 1678 declared that all Bills of supply ought to begin in the Lower House and ' not be changed or altered by the House of Lords 2 / * all aids and supplies, and aids to his Majesty in Parliament are the sole gift of the Commons.' They sub- sequently established that all Bills, which either directly, or indirectly, deal with taxation or supply, are Money Bills. An outcome of this privilege was the unconstitutional process of ' Tacking I i.e. of tacking on to a Money Bill another 'Tacking.' Bill, which they feared would otherwise be thrown out by the Lords ; when this course was adopted, the Lords were obliged to pass the obnoxious Bill, unless they chose to refuse the supplies altogether, which would have greatly inconvenienced the King and the nation ; this course of action, which occurred in 1692, and 1699, was declared by the Lords to be dangerous to the constitution (1702). The Resolutions right of the Upper House to reject Money BilN, though ° l8 rarely exercised, was not called in question till i860. In that year, a Bill for the repeal of paper duties was sent up by the Commons, but failed to pass the Lords. This induced the former to draw up three resolutions, affirming that the Commons possessed the sole right of granting aids and supplies : that the power of the Lords to reject Money Bills • was justly regarded by this House with particular jealousy/ and that to guard against the undue exercise of such power, ' this House has in its own hands the power so to impose and remit taxes . . . that the right of the Commons as to the matter, manner, measure or time, may be maintained inviolate 3 .' In 1861 the financial measures for the year were included in one Bill, which the Lords could not amend and were forced to accept or reject as a whole 4 . (2) Appropriation of Supplies. During the reign of Henry III. Appropria- various attempts were made to deprive the King of his pUes? up control over the expenditure of the public money, but it was not till Edward Ill's reign that Parliament showed 1 Hallam, iii. 30. 2 Anson, i. 254 3 May, Parliamentary Practice, pp. 649, 650. 4 Anson, i. 255, note. Il6 CHAPTER III. a strong wish to apply its grants to special purposes. The royal consent was readily yielded 1 , and the practice was observed in the following reign and under Henry IV and his successors. The larger sums were usually assigned to the defence of the kingdom, tunnage and poundage was set aside for the navy, and the produce of the Crown lands for the expenses of the household 2 . But the system fell into abeyance during the 15th and 1 6th centuries, and though revived in 1624 and 1641 did not become a recognised Parliamentary practice till the close of the 17th century. In 1665 a sum of £1,250,000 was set aside for the Dutch war, and the principle became firmly established after the Revolution of 1688. At the present day, the House goes into Committee of Supply to settle what sums shall be granted to the Crown : the Committee of Ways and Means then determines in what way the amount shall be raised. The Appropriation Act, passed at the end of the session, assigns about two- thirds of each year's revenue to specific purposes. (3) Audit of Public Accounts. In 1341, commissioners were appointed at the request of Parliament to audit the accounts of the collectors of the subsidy on wool ; in 1376, and 1377, auditors were demanded, and, in the latter year, the first Parliamentary treasurers, John Philipot and William Walworth, were appointed. In 1379, Richard II voluntarily presented the accounts for audit, and after some objection by Henry IV, the right was clearly established in 1406, but subsequently fell into disuse. During Elizabeth's reign, accounts were systematically audited 3 ; but the practice does not appear to have been re-established till the reign of Charles II. Between 17 14 and 1802, no regular statement of the financial condition of the country was drawn up, and it is only since 1822, that a 'balanced annual account of the public income and expenditure.' has been laid before 1 e.g. in 1346 the contribution paid by the northern counties was applied to defending the border against the Scots, and in 1353 the whole grant was appropriated to the prosecution of the war. — Stubbs, ii. 565. * Ibid. iii. 265. 3 Anson, ii. 317. THE CENTRAL ASSEMBLY. I 17 Parliament 1 . In 1785 a body of five Commissioners was appointed to audit the public accounts, but by the Exchequer and Audit Act of 1866 (29 & 30 Vic. c. 39, § 3), they were replaced by the Comptroller and Auditor General, who both controls the issue of money, and audits the accounts of its expenditure. Method of enforcing Privileges of Parliament. Method of enforcing The Privileges of Parliament can be enforced by fine 2 and Privilege, imprisonment; and, in the case of members, by expulsion. Imprisonment by the House of Lords, which is a Court of Record (p. 57 note), may be for a fixed period ; imprisonment by the Commons ends with the Session. (1) Chief instances of Members being punished by the Members. House ; first noticeable under the Tudors. fohn Storie (Jan. 1548), committed, probably for violent John storie, language, released on submission. Mr. Copley (1558), committed for speaking disrespectfully Mr. Copley, of Mary. I5s8 - Thomas Long (157 1), member for Westbury, expelled for Thomas ... , . / Long, 1571. bribery to secure his return (p. 143). Arthur Hall (1572), member for Grantham, and the Arthur Hail, master of Smalley (p. 105), reprimanded at the bar of the * 5 House for ' lewd speeches '-; (1 581), expelled, and sent to the Tower, for publishing a book derogatory to the authority of Parliament. Peter Wentworih (1576), committed for using strong Ian- Peter Went- • . T-i- i_ ^ worth, 1576. guage against Elizabeth. Dr. Parry (1585), expelled for stigmatising the bill against Dr. Parry, the Jesuits as ' bloody/ I58s " Peter Wentworth, and Mr. Cope (Feb. 1588), committed Mr. Cope, for certain questions put to the Speaker with regard to the I5 liberties of Parliament. Mr. Palmer (1641), committed for protesting against the Mr. Palmer, Grand Remonstrance (p. 113). * 4I ' 1 Anson, ii. 318. • a No fine has been imposed by the Commons since 1666. May, Parliamentary Practice, p. 90. u8 CHAPTER III. Lord Shaftes bury, 1677. Robert Wal- pole, 1712. Richard Steele, 1714. Aislabie, 1721. John Wilkes 1764. Non-Mem- bers. Bland, 1586. Grand Jury of Kent, 1 701. Aylesbury men, 1704. Alexander Murray, 1751- Lord Shaftesbury (1677), with three other peers, sent to the Tower by the Lords, and imprisoned there for a year. Robert Walpole (17 12), expelled and committed to the Tower for corruption. Richard Steele (17 14), expelled for abusing the Ministry in the ' Crisis.' Aislabie, the Chancellor of the Exchequer, was expelled for being concerned in the frauds of the South Sea Company (1721). John Wilkes (1764), expelled for seditious libel (p. 245), re-elected 1768, again expelled and declared incapable of re-election ; on his being elected a third time, the Commons gave his seat to the second on the poll, Col. Luttrell, who had only 296 votes, to 1143 polled by Wilkes. Such action was unconstitutional, because it created a disability unknown to the law, and in 1782, the records of the proceedings were expunged from the journals of the House. (2) Chief instances of persons not members being punished for contempt. Bland, a currier, was in 1586 fined 20s. for speaking con- temptuously of the House. On the supplies being delayed by Parliament in 1701, the Grand Jury of Kent petitioned that the loyal addresses of the Commons should be turned into Bills of Supply. The petition was voted scandalous, insolent, and seditious, and its presenters were imprisoned. In 1704, the Commons committed the five Aylesbury men to prison for bringing actions against the returning officer. Alexander Murray (1751), committed to Newgate for insulting a returning officer ; he sued out his writ of Habeas Corpus (p. 240), but the judges declared they had no power to admit him to bail *. 1 It had hitherto been customary to make prisoners kneel at the bar of the House when called up for judgment. Murray refused to do so, and in 1772 this practice was abolished by a resolution of the Lower ■House. In the Upper House it was ' silentiy discontinued,' but the 'entries in the Lords' Journals still assume that prisoners are "on their knees " at the bar.' — May, Pari. Practice, p. 116, and Const. Hist. ii. 74. THE CENTRAL ASSEMBLY. 119 In 1 8 10, the House committed to Newgate the publisher of a certain placard ; Sir Francis Burdett in Parliament Burdett's denied their power to do so, and was sent to the Tower for contempt; he brought an action against the Speaker (Abbott), which he lost, the Lords confirming the decision (App. B). The above were all legal commitments, as the power of the House to punish for contempt, and breach of privilege, was early recognised. Occasionally, however, the House has acted illegally, e.g. in Floyd's case, 1621, where the Com- Cases of .._,,... n . Illegal Pun- mons ordered one IMoyd, a barrister, to pay £.1000, and to ishments. be put in the pillory, for speaking against the Elector Pala- F1 °y d > l021 tine ; this they had no right to do, the offence not being a breach of privilege. And in 172 1, the printer of Mist's Journal, a Jacobite Mist's 1 xt ii 11 _ Journal,i72i paper, was committed to Newgate, though no breach of privilege had taken place. Although the Commons have occasionally vainly attempted to create new privileges, they must show that the privilege claimed has always been customary ; e.g. in Ashby v. White, Ashhyv. 1702-4, the Commons claimed the power of determining 1702-4- the rights of electors, as well as the legality of elections; coming into collision on the subject with the Lords, the matter was ended, though not settled, by a prorogation. In 1836-40, Stockdale v. Hansard, the Courts held that Stockdaie v. the Commons could not authorise the publication of libellous 1836-40. ' matter. Thereupon the Lower House resolved ' that this House has the sole jurisdiction upon the existence and extent of its privileges.' The resolution was ignored by the Law Courts, and a serious quarrel seemed imminent. The question was settled by the passing of an Act (3 & 4 Vic. c. 9) which provided that all proceedings against persons for publishing reports under the authority of either House of Parliament, should be stayed on production of a certificate stating that such publication was by Parliamentary order \ 1 See May, Pari. Practice, p. 182, and Const. Hist. ii. 78 sqq. ISO CHAPTER III. 1 701. Aylesbury men, 1704. Instances of collision between the Lords and Commons. 1407. The Commons asserted that the King's request to them to send a deputation to the Lords to hear, and report on, the reasons for granting subsidies was ' to the prejudice of their liberties,' and established the rule that neither House should make any report of any grant to the King, until passed by Lords and Commons. In 162 1, the Lords protested against the illegal punish- ment of Floyd by the Commons. The latter agreed that he should be tried by the Lords, but declared that the case should ' not be a precedent towards the enlarging or diminishing of the privileges of either House V In 1640, the Lords voted, in accordance with the King's wish, that supplies should be granted before grievances were dis- cussed ; this was voted a breach of privilege by the Commons. In 1667, in the case of Skifiner v. The Fast India Com- pany, the Lords claimed an original jurisdiction as a court of justice, which the Commons denied 2 . The quarrel lasted for fifteen months, being finally settled by the mediation of the King, at whose instance all proceedings were expunged from the journals. In 1675, in the case of Shirley v. Fagg (App. B), the Commons declared that there was no appeal to the Lords from Courts of Equity. The dispute was ended by a proro- gation, but the Lords continued to hear appeals. In 1 70 1, the Commons quarrelled with the Lords about the impeachment of Lord Somers (p. 156), and resolved that the Lords had attempted * to overturn the right of im- peachment lodged in the House of Commons by the ancient constitution of the kingdom.' In 1704, the two Houses came into collision on the Aylesbury case. Ashby, a burgess of Aylesbury, had sued 1 Lords' Journals, iii. 119. 2 This action on the part of the Lords ' was probably a result of the disappearance of the Privy Council Jurisdiction, which, in the Court of Star Chamber, had from time to time been exercised in a salutary manner for the bringing to justice of great offenders.' — Anson, i. 336. THE CENTRAL ASSEMBLY. 131 a returning officer at common law, and obtained a verdict against him *. But the Queen's Bench gave judgment for the defendant, and its verdict was in turn reversed by the Lords on a writ of error. The Commons denied the jurisdiction of the Lords, and the latter appealed to the Queen. The quarrel was ended by proroguing Parliament. In i860, the Lords rejected a Bill for the repeal of the Dispute on Paper Duty. Lord Palmerston moved in the Commons that DutyiSfii, the power of the Lords to reject taxation Bills is ' regarded x with peculiar jealousy as affecting the right of the Commons to grant supplies, and to provide ways and means for the service of the year' (see Money Bills, pp. n 4-5). House of Lords. House of Origin. Peerage depends neither on tenure nor nobility ^ d . s * of blood 2 . Although thirteen and a third knights' fees created an obligation of barony, the holder was not a baron from the mere fact of possession. Originally a member of the Magnum Concilium owed his seat to tenure, but Magna Carta introduced the new qualification of summons. A distinction had grown up between the majores and minores barones, and by article 14 of the Charter, the former 3 were to receive a special, the latter a general writ, calling them to Parliament. But since the greater barons were not yet a strictly defined class 4 , there were certain individuals who might be summoned or passed by at the royal discretion. Henry III and Edward I availed themselves of this power, and its careful employment by the latter has won for him the title of ' creator of the House of Lords V But from this time the right was seldom exercised, and the year 1295, says Bishop Stubbs, may be adopted 'as the era fiom which the 1 v. also Ashby v. White, App. B. 2 Nobility of blood is unknown to the English law. The eldest son of a peer is a commoner, and bears a title by courtesy only. In 1547, the Earl of Surrey, son of the Duke of Norfolk, was tried by a common jury on a charge of high treason. 3 The greater barons were those who in their military, fiscal and legal transactions dealt directly with the King ; the lesser barons, those who transacted their business with the Sheriff. Stubbs, i. 567 ; ii. 1S2. 4 Freeman, Essay on the House of Lords, Hist. Essays, Fourth Series, p. 452 5 Stubbs, ii. 20,v 122 CHAPTER III. Creation of Peers. Tenure by Barony. Fitzalan's Case, 1433. Neville's Case, 1598. The Fitz- Walter Case, 1 66a Baronies by Writ. baron, whose ancestor has been once summoned and has once sat in Parliament, can claim an hereditary right to be so summoned * ' ; in such cases the Crown cannot refuse a summons (e.g. Lord Bristol's case 1626, p. 114). Creation of Peers. Although tenure by barony had been the original qualifica- tion for summons, it is clear that from 1295, at the latest, it was no longer sufficient in itself to create a Peer. Various attempts have, however, been made in later times to claim barony by tenure; e.g. — 1433. Sir John Fitzalan claimed the earldom of Arundel as ' united and annexed to the castle and lordship of Arundel/ The claim was admitted ' saving the rights of the King, of the Duke of Norfolk, the heir general of the Earls of Arundel, and of every other person V 1598. Sir Edward Neville claimed the barony of Berga- venny, ' not as has been generally supposed on the sole ground that the dignity was attached to the barony of Bergavenny, but that he, as being seised of that castle, and as heir male of the last lord, was the more eligible person 3 / In 1660, the barony of Fitz- Walter was claimed as a barony of tenure by Mr. Cheeke ; in 1669, the claim, which was opposed by Mr. Mildmay, the heir-general of Robert Fitz-Walter summoned by writ 1295, was heard by the Privy Council, and it was decided that barony by tenure was obsolete, and 'for weighty reasons not to be insisted on,' and a summons was sent to Mr. Mildmay. ' At no period since the reign of Henry III,' says Sir Harris Nicolas, ' has tenure per baroniam been deemed to constitute a right to a writ of summons. Baronies by Writ, originating temp. Henry III, soon superseded the qualification of tenure; e.g. in 1295, out of 1 Stubbs, ii. 184. Lord Redesdale fixes the date at the fifth year of Richard II, but the Statute of that year seems merely declaratory of existing practice. Anson, i. 186. ,J Nicolas' Historic Peerage, p. xx. Sir H. Nicolas remarks on this case that in the reign of Henry VI more anomalies are to be found with respect to the Peerage than in any which preceded it. 3 Nicolas, p. xxi. THE CENTRAL ASSEMBLY. 1 33 fifty-three barons summoned, eleven did not hold lands per baroniam; in 1299, out of forty-five persons summoned for the first time, only twenty-four were barons by tenure, and, says Sir Harris Nicolas, 'it is certain that the number of barons by tenure, during the reign of Edward I, greatly exceeded the number of persons summoned to Parliament V In 1387, occurred the first instance of a barony being Letters created by Letters Patent, when Sir John Beauchamp ofi 3 a 8 7 . ' Holt was made Lord Beauchamp of Kydermynster ; the next was in 1433, when Sir John Cornwall was created Lord Fanhope ; from this time Letters Patent became the usual form of creation. Letters Patent must contain a limitation to heirs male, or female ; a Peer created by Letters Patent need not take his seat to be ennobled. The method of creation at the present day is by Letters Patent, followed by a writ of summons. Although during the minority of Richard II, Peers were created by Parliament, the sole right of creation has remained vested in the King, and has occasionally been dangerously employed, e.g. Anne, in 171 1, created twelve Peers at once, to obtain a majority in the Upper House for the Tories. In 1 7 19, the Peerage Bill was introduced by the Dukes of The Peerage Somerset, and Buckingham, with the approbation of the King ; by it the Crown was not to increase the existing number of 178 by more than six. although it might create a new peerage for every one which became extinct. The Bill, which was violently opposed by Walpole, was fortunately thrown out by the Commons ; had it passed, it would have unduly limited the royal prerogative, and might eventually have imperilled the very existence of the House of Lords. For if the latter reject a measure which is warmly supported by the House ol Commons and by the nation, their opposition can be overcome by a fresh creation of Peers. Thus in 1832 the knowledge that ministers were prepared to resort to this extreme measure, secured the passage of the Reform 1 In some cases Edward I appears to have issued writs to persons who did not hold by baronial tenure at all. Stubbs, ii. 204 ; Anson, i. 184. 124 CHAPTER III. Bill in the House of Lords. A peerage cannot be resigned, or alienated, by its holder ; it can only be taken away by Parliament. Composition Composition of the House. of the Lords. m i. Lay Peers. (a) Dukes. First created in 1337 (the Black Prince made Duke of Cornwall). (b) Marquises. Counts of the Marches. First introduced in 1385, when Robert de Vere, Earl of Oxford, was made Marquis of Dublin. (c) Earls. This title was derived from the Danish Jarl, and began to supplant that of Ealdorman in the reign of Ethelred l . (d Viscounts. First introduced in 1440. John, Lord Beaumont, created Viscount Beaumont. (e) Barons. The word baron signified chronologically — (1) A tenant-in-chief. (2) The holder of a barony of 13J knights' fees. (3) A man who held such a barony, and received a writ. (4) A man who received the summons, whether the holder of a barony or not. (5) A man entitled to receive the writ, either by creation or prescription a . Spiritual 2. Spiritual Peers, who formerly far outnumbered the Lay Peers: e.g. 1295, there were ninety Spiritual Peers, and only forty-five Lay Peers ; in 1509, forty-eight Spiritual Peers, and thirty-six Lay Peers. The abbots and priors were summoned by virtue of their tenure per baroniam, the bishops by virtue of their ecclesiastical position. From 1341 the number somewhat diminishes, owing to the burden of attending. After the dissolution of the monasteries, 1539, the archbishops and bishops numbered only twenty-one ; this number was subsequently increased to twenty- six. At the present day, in addition to the two archbishops, the Bishops of London, Winchester, and Durham have seats in the House of Lords, 1 See Stubbs, Sel. Charters, 485, Summons of an Earl^ 3 Scl. Charters, 37. Stubbs, i. 366. THE CENTRAL ASSEMBLY. 1 25 in right of their sees ; the remaining bishops, with the single exception of the Bishop of Sodor and Man, are summoned to Parliament according to seniority of consecration, until the full complement is made up; these twenty-six Spiritual Peers sit ' in virtue of their spiritual office, and not of the temporalities of their see 1 / In 1801, one archbishop and three Irish bishops were added to Parliament, and sat until the disestablishment of the Irish Church, 1869. In 1642, the Bishops Exclusion Bill deprived the Spiritual Lords of their seats in the Upper House, and they did not regain them till 1660. Unsuccessful motions to exclude them from Par- liament were brought forward in 1834 and 1836. Spiritual Peers do not vote on questions of life and death (p. 155), and, by a resolution of the House of Lords in 1692, have no right to be tried by the Peers 2 . 3. Life Peers, occasionally created temp. Richard II to Life Peers. Henry VI: e.g. Guichard d'Angle, Earl of Huntingdon (1377); Thomas Beaufort, Duke of Exeter, (1416). There have been occasional creations since, e.g. the baronies of Hay (1606), and Reede (1644), but these did not carry with them a seat in the House. There was no doubt that the Crown had the power of giving life peerages, and in 1856, Sir James Parke was created Baron Wensleydale for life by Letters Patent. LordWens- The opposition to this was great ; it was argued that the else, 1856. Crown's power had not been exercised for four hundred years, and was therefore obsolete, and that, in any case, it could not give a right to sit in Parliament ; it was answered that f nutium tempus occurrit regi,' and that lapse of time is of no effect. The question was referred to the Com- mittee of Privileges, and in the result it was declared that ' neither the Letters Patent, nor the Letters Patent with the usual writ of summons issued in pursuance thereof, can entitle the grantee to sit and vote in Parliament.' In con- sequence, Lord Wensleydale was made an hereditary Peer. 1 Anson, i. 213. 3 This resolution, says Bishop Stubbs, is of no historical authority. The doctrine of ennobled blood, by which it is sometimes supported, is historically a mere absurdity. Const. Hist. iii. 443, note 2. 12,6 CHAPTER III. Representa- tive Peers. Scotch. Irish. Numbers. In 1876, by the Appellate Jurisdiction Act (39 & 40 Vic. c. 59), two law Lords were added as Life Peers to the Upper House, to strengthen its judicial side as a Court of Appeal. The great advantage of life peerages is that they can be conferred on able men, who are not rich enough to support an hereditary peerage. 4. Representative Peers. (a) Scotch. Added at the Union, 1707; they are sixteen in number, and are elected for each Parliament by the Peers of Scotland, who assemble at Holyrood for that purpose. Proxies are allowed. After election, the Scotch represen- tative Peers receive no special summons, but take the oath as duly elected representatives. By accepting an English peerage, they forfeit their seats as representative Peers. As no more Scotch Peers can be created, the existing Scotch peerages will all in time become extinct, or be merged in the peerage of Great Britain. Scotch Peers have all the rights of peerage, except a seat in Parliament. (&) Irish. Added at the Union, 1801 ; they are twenty- eight in number, and are elected for life by the whole of the Irish Peers. One Irish peerage may be created for every three which become extinct, or are transferred to the peerage of Great Britain, until the number is reduced to 100, when a peerage can be created for every one that dies out ; the number is never to sink below 100. Irish non-representative Peers may sit in the Commons, but, by so doing, forfeit their rights as Peers ; they cannot represent any Irish constituency. Numbers. The numbers of the Upper House have varied much at different times, e.g. in Dec. 1299, ninety- nine barons were summoned, besides earls and spiritual Peers. The ranks of the peerage were so thinned by the wars of the Roses that only twenty-nine lay Peers were called to the first Parliament of Henry VII (1485). Under Henry VIII, we find as many as fifty-one temporal Peers; in this reign, after the dissolution of the monasteries, the number of spiritual Peers was reduced to twenty-six, at which number it has ever since remained (except during the period when THE CENTRAL ASSEMBLY. 127 the four Irish prelates were added, 1801-1869, p. 125). Many creations were made by the Stuarts, by whom peer- ages were frequently sold. In Feb., 1649, tne Commons voted that the House of Lords was ' useless and dangerous, and ought to be abolished,' and it did not meet again until the Restoration. In 1657, Cromwell, being authorised to create a new House, sent writs to sixty persons, who met in the following January; the Commons, however, refused to recognise them, and the House was dissolved, Feb. 4, 1658. In 1688, there were one hundred and fifty-eight lay Peers, and temp. Anne, one hundred and sixty-eight. The lavish creation of Peers by George III, drawn chiefly from the wealthy middle classes, introduced a new element into the Upper House, which became ' the stronghold not of blood, but of property ' ; peerages were frequently given (especially at the instigation of Lord North and Mr. Piti) as rewards, and to strengthen the Court party ; the number of peerages, including promotions, conferred during the reign was three hundred and eighty-eight. At the present day (1894) the House of Lords consists of 2 archbishops, 24 bishops, 500 English Peers, 16 Scotch representative Peers and 28 Irish representative Peers : total, 570. Functions Of the Lords. Functions of The House of Lords is a Court of Record 1 (p. 57, note), and, as such, has the power of inflicting fines and imprison- ment. Its functions are — Legislative. In theory, it has a co-ordinate power with Legislative the King and the House of Commons; practically, however, it does not initiate important measures, but confines itself to amending, and revising, Bills sent up from the Commons ; it is thus a most useful check on hasty legislation, whilst, on 1 The Lower House is probably not a Court of Record, although the position has often been claimed by it, e.g. in Floyd's Case (p. 119), and in the Case of Fortescue and Goodwin (p. 112), and has been asserted by Sir E. Coke in the words ' no question but this is a House of Record, and hath power of judicature in some cases.' The claim has latterly been virtually abandoned, although never strictly renounced. May, Pari. Practice, p. 89. 128 CHAPTER III. Judicial. a matter on which the nation has really made up its mind, the Lords are compelled to yield, e.g. the Reform Bill, 1832. It has the sole power of initiating Bills relating to the peerage, but cannot initiate, or amend, a Money Bill. Deliberative. Deliberative and Consultative. The Peers are the heredi- tary counsellors of the King, and, as such, have the individual right of access to the Sovereign (see Seven Bishops Case, App. B). When Parliament is not sitting, they are the per- manent counsellors of the Crown, and may give advice. Judicial. Derived from the judicial functions of the King's Council (p. 41). The House of Lords is the Supreme Court of Appeal from the Courts of Common Law, and also from the Equity Courts. In cases of impeachment (p. 150) the Commons act as accusers, the Lords as judges. The Lords have no jurisdiction as a Court of first instance, except in trying a member of their House for treason or felony [Skinner v. East India Co. (p. 120), Floyd s Case (p. 119)]. The Speaker of the House of Lords is the Lord Chancellor, who has, however, no authority, and no casting vote, in the exact sense of the term, though in cases of equal voting he gives his decision (in accordance with immemorial custom) in the negative ; he is not excluded from the debate. House of Commons. Origin. The House of Commons was composed of representatives elected by the shires, the towns and the clergy. Its origin may be traced to the Anglo-Saxon system of local representation which was developed by the Norman and Angevin Kings and gradually based on the principle of election. In the 13th century, the Crown, instead of despatching officials to consult the representatives in their various localities, began to summon the latter to some central point and consult with them in person. Thus we gradually come to the Model Parliament of 1295, which marks the institution of the House of Commons. The process of development must now be traced in detail. Representation. The earliest representation in England was ecclesiastical, and is to be traced in the Church Councils. House of Commons Origin. Representa- tion. THE CENTRAL ASSEMBLY. 139 As used for fiscal and judicial purposes, it was familiar to the nation long before it was used politically; e.g. in the shire moot (p. 68) the hundreds were represented by the twelve lawful men, the boroughs by the reeve and four men. In the hundred moot (p. 70) the townships were represented by the reeve, the priest, and four men, whilst the laws of Ethelred x appoint a representative committee of the twelve senior thegns to present criminals. In 1070, the ancient laws and customs were drawn up Early in- from the declaration of twelve knights, elected for each R ep resenta- county in the Shire Court. In 1085, the information for the compilation of Domesday Domesday, (p. 195), was obtained from the oaths of the Sheriff and of 1 representatives of each hundred and by the witness of the reeve, priest, and six villeins as representatives of each township 2 . In 1164, 1 166, 1 1 76, and 1194, regulations were passed concerning representative juries. In 1 18 1, certain lawful men were, by the Assize 0/ Arms, to Assize of ... . , , . Arms, 1181. swear to all who possess sixteen marks, 01 ten marks in chattels and rent 3 . In 1 1 88, in the Saladin tithe, four, or six, lawful men of Saiadin the parish were to declare on oath the proper amount which ought to be paid by those who appear to have given less than their due 4 . In 1 198, a carucage of 5-r. was collected by officials, in Carucage, conjunction with sworn representatives of the county as assessors 6 . By Magna Carta (c. 18), it was provided that the Assizes Magna should be held for each county four times a year, before two justices and four knights, chosen in the County Court 6 . By clause 48 of the Charter, evil customs were to be enquired into by twelve sworn knights of each county, chosen in the County Court. In 1231, twelve burgesses were to represent each borough 1231. in the County Court of Yorkshire before the itinerant justices 7 . 1 Sel Charters, 72. 4 lb. 160. 5 lb. 257. 8 lb. 86. 6 lb. 299. K 3 lb. 155. ' lb. 358. 130 CHAPTER III. Political Political Representation. Representa- tion. By degrees, the local representatives were no longer consulted locally, but were summoned to a central point ; instances. e.g. Aug. 4, 1213, the reeve, and four men, from each township in the King's demesne were summoned to the St. Aiban's, Council at St. Alban's, to consult about the restitution to be made to the bishops ; this was more than a financial question 1 . Oxford, 1213. In Nov. 1213, four discreet knights were summoned to Oxford from each county, by writs directed to the Sheriffs, to consult with the King about State affairs 2 ; they were prob- ably elected in the County Court. From 12 13 to 1254, although representation continues to be employed for purposes of assessment and the like, there is a break in the continuity of Parliamentary representation, owing to the minority of Henry III, and his personal government. I2 5* In 1254, however, two lawful and discreet knights of the shire were ordered to be elected in the County Courts, and to be sent to Westminster to confer about a grant 3 . 1261. i n I2 6i, three knights from each shire were summoned by the barons to St. Alban's, ' to treat of the common business of the kingdom ' ; the King thereupon ordered them to repair to Windsor 4 . 1264. In 1264, four knights from each shire were summoned to Parliament by Simon de Montfort 5 . Parliament i n Dec. 1 264, Simon de Montfort issued writs for a Par- of 1265. T1 liament to meet in Jan. 1265, at London; to it were sum- moned two knights from every shire, two citizens from each city, and two burgesses from each borough 6 . Simon de Montfort, by thus bringing together for the first time representatives from counties and towns, took an important step towards the formation of a representative Parliament 7 . During the earlier years of Edward l's reign, representation 1 Sel. Charters, 276. 2 lb. 287. ■ lb. 376. 4 lb. 405. 5 lb. 412. • Writs were also sent to the Archbishop of York, 12 bishops, 107 inferior clergy, and 23 peers. 7 Sel. Charters, 415. THE CENTRAL ASSEMBLY. 131 does not develope much. In 1273, four knights from every I2 73- shire, and four burghers from every borough, join the mag- nates in swearing allegiance to Edward *. In 1275, the commonalty of the land assist in passing the "75. Statute of Westminster 2 . In Jan. 1283, four knights from every county, and two 1283. burghers from every town, were sent to York, or Northamp- ton, ' ad audiendum et facie?idum ea qua sibi ex parte nostra faciemus ostendP! In Sept. of the same year, two knights from the counties, and two representatives from London and twenty other towns, met at Acton Burnell 4 . In 1290, two knights only from each shire met at West- 1290. minster. In this Parliament the Statute Quia Emptor es (p. 214) was passed before the Commons had arrived 5 . In 1294, four knights from each shire were summoned 6 . I2 94- In 1295, in what has been called the Model Parliament, 'Model' . - Parliament, we get a perfect representation of the three estates 7 ; from 1295. this date the representatives of the counties and boroughs attend regularly. At first, temp. Edward I, the idea existed, that * what con- cerned all should be approved of by all/ and the various interests were fairly represented up to the time of the Tudors. After that, representation grows worse and worse up to the Reform Bill of 1832; in the eighteenth century, the Parlia- ment did not represent the nation at all, owing to the rotten and close boroughs, where the election was often in the hands of a few individuals, and to the fact that many large towns were entirely without members, e.g. Manchester and Leeds. County Franchise. County -*••--■ , _.•.., , Franchise. County representation in Parliament sprang, as we have seen, from the practice of appointing representative knights 1 Sel. Charters, 429. 2 lb. 450. 3 lb. 465. * lb. 468. 5 lb. 478; Stubbs, ii. 132. • Sel Charters, 481. ' lb. 483 sq. K 2 132 CHAPTER III. for local purposes ; these local knights were elected by the whole County Court, at which all freeholders were present ; at first the knights of the shire wece elected, in the same way, in full County Court. In 1376, in answer to a petition, it was declared that they were to be elected by the assent of the whole county, and all who attended could vote ". By de- grees, the election fell into the hands of the Sheriff, or land- owners ; e.g. temp. Richard II, the King ordered the Sheriffs to return his candidates, and this was one of the charges brought against him at his deposition. Parliament was 'packed' by John of Gaunt in 1377 ; and was again packed in 1397 by the King; the Sheriffs also sometimes returned their own candidates, instead of those elected by the County Court. In 1406 (7 Hen. IV, c. 15), it was provided that elections should be in full County Court, and that the return was to be made by indentures ; four years later, 1 1 Hen. IV, c. 1 provided that a Sheriff convicted of making a false return should be fined £100, whilst Justices of Assize were em- powered to inquire into returns (repealed 1774). In 141 3 (1 Hen. V, c. 1), it was provided that the voter must be resident in the county, and in 1432, that the land on which the vote is claimed must be situated in the county; the necessity of residing in the county was abolished in i 774 (14 Geo. Ill, c. 58). In 1427, the election of knights of the shire was still further regulated, and in 1430 (8 Hen. VI, First Dis- c . 7), was passed the first disfranchising statute 2 , providing franchising ' * riii 1 Statute, 1430. that county electors must be resident freeholders, worth at least 40s. a year ; the amount could be determined by the Sheriff on oath. This statute was confirmed in 1445, and a complaint was made of the conduct of the Sheriffs. In 1 There are instances of some classes of freeholders petitioning to be exempted from the burden of election, which proves that they had a right to the franchise. 2 This statute was intended ' to secure orderly elections, and to impose a qualification which should exclude the casual crowd attending the County Court.' *It does not seem to have altered the character of the representation.' Anson, i. 98. THE CENTRAL ASSEMBLY. I33 1 653, the Instrument of Government conferred the county fran- chise on persons possessing real or personal property worth £200, but no further alteration was made until 1832. The Reform Act of that year (2 & 3 Will. IV, c. 45), added to the Reform Act, 40,?. freeholders and occupiers, £10 freeholders if not * 32 * occupiers, £10 copyholders, £10 leaseholders for sixty years, £50 leaseholders for twenty years, and occupiers of the yearly rental of £50. By the Reform Act of 1867 (30 & 31 Vic. c. 102), the Reform Act, county franchi e was given to occupiers of £12 rateable * 7 ' value, £5 freeholders without occupation, £5 copyholders, and £ 5 leaseholders for sixty years, or £ 50 leaseholders for twenty years. To enjoy the franchise it is necessary to be placed on the register, for which certain qualifications of residence and rate-paying are required. By ihe Representation of the People Act, 1884 (48 Vic. c. 3), Representa- the property qualifications for the county franchise remain the peopkAct, same; the occupation qualification is reduced to £10. l884- Borough Franchise. Borough At first the boroughs were, as a rule, indifferent to the Franchlse * honour of returning members, whilst the writs were sent to the Sheriff in the County Court, not, as since 1853, to the Returning Officer ; the members were nominated in the borough assembly, and the return was sent to the Sheriff in the County Court, where the election was formally made, and the returns sent in with those of the knights of the shire. In London the election was at first made by the Mayor, Aldermen, and four, or six, men from each ward; from 1375 to 1485, by the Common Councilmen, and subsequently by the liverymen of the City Companies. In some of the towns which were regarded as counties, e.g. York, Nottingham, and Bristol, the franchise was enjoyed by the 40J. freeholders. In the towns generally, the franchise was variously regu- lated ; e.g. it belonged (1) To the holders of particular tenements on burgage tenure (p. 211); or (2) To all freemen of the borough, or gild (p. 262); or 134 CHAPTER III. (3) To all householders paying scot and lot, i. e. the local rates; or (4) To corporations (p. 269) K In 1413 (1 Hen. V, c. 1) residence was required in order to obtain a vote; this provision was however evaded, and the statute was repealed in 1774(14 Geo. Ill, c. 58). In 1445 (23 Hen. VI, c. 14), the returns were to be made by indenture as in the counties. With the granting of new charters by the Tudors, and by Charles II, care was taken so to vest the franchise in close bodies and corporations that Court nominees only were returned. Great abuses arose in consequence, e.g. the fran- chise in Bath was exercised only by the Mayor, ten Aldermen, and twenty-four Common Councilmen; in Buckingham, by the Bailiff and twelve burgesses; in St. Michael, by all in- habitants paying scot and lot (these were seven in number) ; in Tavistock, by all freeholders (seven in number). Reform Act, By the Reform Act of 1832, the old franchise qualifications were abolished, with the exception of the 40J. qualification in towns which were counties, and the qualification arising from being a freeman of a chartered town, if such freeman- ship would have given a vote before the Reform Act of 1832 ; the borough franchise was given to all owners, or occupiers, of houses of the annual value of £10, subject to certain conditions of residence, and payment of rates. Reform Act, By the Reform Act of 1867, it was extended to all house- holders rated to the poor rates, resident one year, and on the register; and to all lodgers occupying unfurnished lodgings of the annual value of £10, if they remained in the same lodgings for twelve months. Lodger By an Act of 1878 (41 & 42 Vic. c. 26), a lodger may Franchise. , J , . . , , , . . / , change his rooms, provided he remains in the same house; and may be a joint Occupier, if the total rent is of the value of £10 each. The Representation of the People Act, 1884 (48 Vic. c. 3), 1 For an account of the varieties in these different qualifications, see Anson, i. 99-104, and Stubbs, iii. 415-421. THE CENTRAL ASSEMBLY. 1 35 enacts a uniform household franchise, and lodger franchise, for all counties and boroughs, and assimilates the occupation qualification in counties and boroughs, fixing it at £10 annual value. It is estimated that by this Act more than two million persons, chiefly of the agricultural and labouring classes, have been enfranchised. Composition of the House. SXHSSS. Knights of the Shire. First summoned to Parliament in Knights of 6 J the Shire. 1 2 13 (p. 130), although they had been frequently elected before that for local purposes ; for some time they sat and granted aids with the barons, with whom they were more closely connected than with the burgesses, many of them being the younger sons of nobles. It seems quite clear that they represented the freeholders of the county (by whom they were elected in the County Court), and not merely the lesser barons *. Though granting aids with the barons, the knights are recorded as voting apart from them in 1332, and they sometimes joined the burgesses in petitions ; gradually they Their union , • 1 with the drew off from the barons, and joined the burgesses, with Burgesses, whom they sat in 1333, and with whom they were completely fused by 1347. The reasons for their union with the bur- gesses were — (a) Their common representative character; both bodies appeared, not in their own personal right, but as delegates. (£) Common business in the County Court ; of which the citizens were as much members as the landed proprietors. (c) Common form of summons ; through the Sheriff. (d) Common powers; both bodies were summoned, not to initiate national measures, but to consent to measures already decided on by the nobles. (e) Community of local and commercial interests. The fusion of the county and borough element was most important, inasmuch as it brought great strength and in- fluence to the Lower House. From 1322 (16 Ed. II) up to the end of Elizabeth's reign, knights of the shire received 4s. a day as wages ; these wages 1 Const. Essays, pp. 188-192. i 3 6 CHAPTER III. were regulated by Acts of 1388, and 1544 (35 Hen. VIII, c. n). They were not abolished until the present reign. In 1372, lawyers were declared ineligible to sit for counties (repealed 1871, 34 & 35 Vic. c. 116) ; as were Sheriffs during their term of office. In 1382, it was ordered that knights refusing to attend Parliament should be fined. By a Statute of 1413 (1 Hen. V, c. 1), confirmed 1430, knights must be resident; repealed 1774 (14 Geo. Ill, c. 58). In 1445, (23 Hen. VI, c. 14) it was provided that knights must be of gentle birth, and must be able to take up their knighthood, i.e. must hold land to the annual value of £20 ( = £300 now). In 1 7 10, a Statute was passed (9 Anne, c. 5) to exclude rich merchants from the House, making it necessary for county members to have a property qualification of £600 a year from freehold, or copyhold; repealed 1858, by 21 & 22 Vic. c. 26. Burgesses. Burgesses. First summoned to the Parliament of Jan. 1265. In 1322, their wages were fixed at 2s. a day, regulated in 1544. By 6 Hen. VIII, c. 16, 15 14-15, members leaving Parliament, without permission, before the end of a session, were to forfeit their wages. In 1710(9 Anne, c. 5, repealed 1858) they were to have a property qualification of £300 a year (supra). Numbers. Numbers. In the 'Model' Parliament of 1295, 74 knights and 332 burgesses sat 1 ; the numbers of the latter class fluctuated considerably, as the Sheriffs frequently omitted to send on the writs they had received to the boroughs, which did not wish to incur the burden of returning members; or to boroughs from which, for some fraudulent reason, they desired to withhold the writ. Whilst some boroughs obtained dispensations from enfranchisement, others were frequently, especially in later times, created for court nominees by royal charter ; the last instance of the creation of a Parliamentary 1 Stubbs, ii. 235. THE CENTRAL ASSEMBLY. 137 borough by royal charter was that of Newark, 1673. A debate Last creation .11 1 , • • 1 t-t 1 • j • 1 i of a Borough was held on the subject in the House, and it was decided by Royal that such a creation was legal. Temp. James I, the Commons X 6*l er ' decided that a borough, which had once been represented in Parliament, was ever after entitled to a writ. In 1529, 236 burgesses sat. In 1536, Henry enfranchised Wales (the only previous instances of Welsh representation had been in 1322, and in 1327); and in 1544, the County Palatine of Chester sent representatives for the first time. Durham was not represented until 1675 l . Edward VI created 14 new boroughs and revived the representation of 10 others. Mary and Elizabeth added respectively 21 and 60 members, the latter creating 8 new boroughs in a single year (1563); James I added 12 (of which one, Bewdley, returned one member), and the Universities (27 members). Under Charles II, the number of the Lower House was 513, made up of 92 county members, 417 borough members, and 4 University members ; this was subsequently increased by 45 Scotch members, added in 1707, and 100 Irish, added in 1801. By the Reform Act of 1832 (2 & 3 Wm. IV, cc. 45, 65, 88), the number of members for English and Welsh constituencies was reduced to 500, while Scotland sent 53 members, and Ireland 105. From 1868 to 1885 the numbers were — England and Wales 493, Scotland 60, Ireland 105. The Redistribution of Seats Act of 1885 (48 & 49 Vic. c. 23) has deprived of their members 79 English, 22 Irish, and 2 Scotch boroughs; one English county (Rutland) has lost one member, and 36 English boroughs, and 2 Irish, have lost one member apiece. Unlike previous acts, which were based on the principle of local representation, it attempted to distribute seats according to the number of population ; thus, towns with a population of more than 15,000, and less than 50,000, return one member ; those with more than 50,000, 1 The first writ for Durham county was issued in May, 1675, and for the city in Feb. 1678. 138 CHAPTER III. and less than 165,000, two members; for still greater popu- lations, every extra 50,000 inhabitants secures an additional member. The number of members of the present House of Commons (1894) is 670, distributed as follows — England. County members 234, borough members 164, London members 62, Universities 5; total, 465 seats. Wales. County members 19, borough members 11; total, 30 seats. Scotland. County members 39, members for burghs 31, Universities 2 ; total, 72 seats. Ireland. County members 85, borough members 16, Universities 2 ; total, 103 seats, pisquaiifica- Persons disqualified as Members. sitting. (1) Aliens, unless naturalised, 33 & 34 Vic. c. 14, s. 2, 1870 (P- 235). (2) Minors (7 & 8 Wm. Ill, c. 25, s. 7, 1696). The dis- qualification of minority has sometimes been evaded, e.g. Mr. Fox sat for Midhurst when only nineteen, 1768. (3) Clerks in Orders, e.g. when Mr. Home Tooke was returned for Old Sarum in 1801, a special Act was passed (41 Geo. Ill, c. 63) to render clergymen ineligible in future. Mr. Home Tooke sat until the dissolution in 1802. This Act disqualified clergy of the Established Church, and ministers of the Church of Scotland ; ordination after election voids a seat immediately. Roman Catholic priests are forbidden to serve as members of the House of Com- mons by the Roman Catholic Relief Act (10 Geo. IV, c. 7, s. 9). By the Clerical Disabilities Act of 1870 (33 & 34 Vic. c. 91) any clergyman of the Church of England may relinquish his Orders, and thus render himself eligible for election. 4. Judges (including the Master of the Rolls since 1875). 5. Holders 0/ pensions (with the exception of diplomatic and civil service pensions), government contracts, or offices created since Oct. 25, 1705 (p. 143). By the Act of 1707 THE CENTRAL ASSEMBLY. 5 cq W in < 5 H Z w u w H EL o •goo "o-CO . TJ in 2 "3, S £ 6 -mo |fcg •5 x5 •C S" « H S3 « a, o ~ a 140 CHAPTER III. (6 Anne, c. 7), if a member accepts an office created before 1 705, he has to offer himself for re-election. This does not apply to naval or military commissions (sec. 28). 6. Insane persons. In proved cases of insanity, the custom is for the seat to be declared vacant by the House. 7. Bankrupts (1869). A member made bankrupt vacates his seat, unless the bankruptcy is at an end within six months. Bankruptcy is not a bar to election, but the bankrupt can neither sit nor vote unless he obtains an annulment of adjudication in bankruptcy, or a grant of discharge together with a certificate stating that misconduct was not the cause of his bankruptcy (46 & 47 Vic. c. 52, § 32). 8. Persons convicted of treason, or felony, or attainted, e.g. Smith O'Brien 1848, O'Donovan Rossa 1870, John Mitchell 1875. This disqualification is removed by serving the sen- tence, or by a pardon under the Great Seal. 9. Peers of England, and Scotland, and Irish representative Peers. Irish non-representative Peers may sit for any con- stituency in Great Britain, but not for Irish constituencies; e.g. Lord Castlereagh, on becoming Marquis of Londonderry, lost his seat for County Down, but was at once returned for an English constituency. The eldest son of a Peer can sit in the Commons ; the first instance is the son of the Earl of Bedford, 1549. 10. Persons convicted of Corrupt Practices in connection with Parliamentary elections are disqualified from sitting at any period for the place where the bribery took place, and for seven years as member for any other place (46 & 47 Vic. c. 51). 11. Women. At the election of 1885, the Returning Officer of Camberwell refused to receive Miss Helen Taylor's nomination paper. (See Law Journal, Nov. 28, 1885.) 12. Persons not taking the Oath of Allegiance, or affirming ; e.g. the House of Commons excluded Mr. Bradlaugh in 1880, on the ground that having, avowedly, no religious belief he could not take the oath, and the Courts held that he was not THE CENTRAL ASSEMBLY. 141 entitled to affirm instead 1 . The Oaths Act of 1888 (51 & 52 Vic. c. 46) allows an affirmation to be substituted for an oath' on all occasions. There were formerly other disqualifications, such as non-residence, repealed 1774 (14 Geo. Ill, c. 58); and lack of property, repealed 1858 (21 & 22 Vic. c. 26). See also Roman Catholics, admitted 1829 (10 Geo. IV, c. 7); and Jews, admitted 1858 (21 & 22 Vic. c. 49). Sheriffs could not sit for their own shires, and appointing obnoxious members as Sheriffs was a method occasionally employed by the Crown to exclude its enemies from Parliament; e.g. by Charles I, Feb. 1626. In 1372, Edward III forbade lawyers to sit in Parliament, and this Act, though long obsolete, was not formally repealed until 1871 (34 & 35 Vic. c. 116); in 1404 they were entirely excluded from the 'Unlearned Par- liament' (p. 160), whilst up to a very recent date, lawyers were not supposed to sit as knights of the shire, though, as a matter of fact, they frequently did sit for counties. Oaths to be taken by Members. Since 1534 it has Oaths of been usual for members of both Houses to take the Oath of and Allegiance, and since 1558, the Oath of Supremacy. upremacy. In 1563, by 5 Eliz. c. 1, sec. 16, the Oath of Supremacy had to be taken by all members of the Lower House ; and in 16 10, by 7 Jac. I, c. 6, sec. 8, the Oath of Allegiance, both before the Lord Steward. In 1678, by 30 Car. II, c. 1, members of both Houses had to take the oaths before taking their seat ; since that date there have been alterations in the form of the oath, and in 1858 (21 & 22 Vic. c. 48), a single Oath of 'True Allegiance' took the place of the Oaths of Supremacy and Allegiance. By 3 & 4 Will. IV, c. 49, Quakers, Moravians, and Separatists were allowed to ' affirm ' instead Affirmation, of taking the oath, and in 1858 a special form was also provided for Jews. Finally, in 1888, the Oaths Act (51 & 52 1 Mr. Bradlaugh was re-elected for Northampton in 1886. The Speaker refused to allow a motion to be made restraining him from taking the Oath. He accordingly took it, and sat and voted, subject to the risk that the law officers of the Crown might proceed against him under the Parliamentary Oaths Act of 1866. Anson, i. 86. 142 CHAPTER III. Bribery of Members. Direct. Indirect. Vic. c. 46) allows any person to make an affirmation who states that he has no religious belief or that he has con- scientious objections to taking an oath. If a member fails to take the oath, or to make an affirmation, he enjoys all the rights of a member except ' sitting within the bar of the House, taking part in its debates, and voting in its divisions 1 .' If he does any one of these three, he is liable to a fine of £500. Bribery of Members. One of the main results of the Revolution had been to make the House of Commons the predominant factor in the constitution. It could grant or refuse supplies, and maintain or disband the army. The Crown could no longer control its proceedings by the methods in vogue under the Tudors and early Stuarts, and yet govern- ment could not be carried on without its continuous support. An assembly which could not be terrified had to be cajoled, and throughout the greater part of the 18th century, the Crown and its ministers obtained a working majority by systematic and unblushing bribery. For a long time all direct attempts to check this practice proved futile, and it is only owing to the growth of various political interests, the reform of the representative system, and the publicity of debate, that bribery has ceased to be a prominent feature of political life. (a) Direct bribery by means of money, described as * secret service' money, was first employed by Lord Danby temp. Charles II ; it was continued under William III, Anne, and the Hanoverians, and was reduced to a regular system by Walpole and Henry Pelham. Under George III, who en- couraged the practice, the abuse increased, and in 1762, during Lord Bute's ministry, £25,000 was spent in one day in buying the votes of members ; bribery was continued by Lord North, but ceased after the American war. (b) Indirect bribery, by giving pensions, places, and titles 2 , 1 Anson, i. 60. 8 Titles were frequently conferred during the reign of George III, especially by Pitt, in return for the political interest of borough-owners. THE CENTRAL ASSEMBLY. 143 was much employed by William III. In 1693, the Commons passed a Bill to the effect that no member subsequently elected could accept any office under the Crown. This was rejected by the Lords, but passed by them in the following year ; William, however, refused the royal assent. In 1701, the Act of Settlement provided that ' no person who has an Act of office, or place of profit, under the King, or receives a pension ^"i. 6 " 1 from the Crown, shall be capable of serving as a member of the House of Commons 1 .' This was repealed in 1705 (4 Anne, c. 8), and by 6 Anne, c. 7 (1707) it was enacted that no one holding an office created after October 25, 1705, could sit, whilst members accepting an office which had existed before, were to vacate their seats, and offer themselves for re-election. In 1742 (15 Geo. II, c. 22), the Place Bill, Place bui, passed after great opposition, disqualified clerks and many other Government officials, and in 1782 the number of places available for members was still further reduced by Lord Rockingham's Civil List Act (22 Geo. Ill, c. 82). Subse- CiviiList quently indirect bribery was carried on by State loans and lotteries, shares in which were given away to members, whilst in 1782, Lord Rockingham found it necessary to pass the Contractors Act (22 Geo. Ill, c. 45) to disqualify Govern- Contractors' Act, 1782. ment contractors. Bribery at Elections. The first known instance is that Bribery of of Thomas Long, who, in 1571, bribed the borough of West- Westbur bury to return him (p. 117). Bribery of electors was fiist 1571. systematised temp. Charles II, and increased rapidly, owing in great measure to the prizes to be obtained in Parliament. The Bill of Rights, in 1689, declared that the election of members ought to be free, and Acts were passed to check the Bribery Acts abuse in 1695, and 1729 (2 Geo. II, c. 24), but it increased * 95, 1? to an enormous extent under George III. The sale of seats was effected quite openly ; if the voters were independent, they 1 This provision in the Act of Settlement against place-holders never was in force, as the Act itself did net come into operation till after Anne's death ; so in point of fact, the place-holders did sit in the period between 1 701-1706. 144 CHAPTER III. were bribed individually, if the borough was a ' nomination ' borough, or in the hands of the Corporation, it was bought outright ; there were regular borough brokers, the price of a seat ranging from £2,500 to £9,000. In 1768, the Mayor and ten Aldermen of Oxford were imprisoned for offering the seat of Oxford for sale for £5,670. Bribery at county elections was also notorious; e.g. in 1768, Cumberland and Westmoreland cost £40,000, and in 1779, Gloucestershire cost £30,000. The growth of the abuse was due to the 'Nabobs/ or Indian merchants (who had amassed large fortunes, and came home with the idea of buying a seat), and to the encouragement of the King. In 1762, bribery was declared punishable by fine, and subsequent Bills were pro- posed to remedy the evil in 1768, 1782, and 1786, but were Disfranchise- not passed. In 1782, the revenue officers, who controlled mentofthe . . .. r :. . . . Revenue seventy elections, were disfranchised, and in 1809 the sale of i 7 82 C . ers ' seats was checked by an Act (42 Geo. Ill, c. 118). Bribery 1 however continued rife until the Reform Act of 1832 was passed. Attempts to Reform in the representation of Parliament had been Reform Bills, advocated as early as 1745, by Sir Francis Dashwood; and Patii 1?7 ° m 1 W°> Lord Chatham proposed that a third member should mentary be added to each countv, to counterbalance the corruption of Reform. " r the boroughs. wiikes, 1776. In 1776, Wilkes proposed to disfranchise the rotten boroughs, to extend the county franchise, and to give mem- bers to certain unrepresented towns, such as Manchester and Leeds. No division. Ri U h e ° f d * n I 7 8 °' ^ e Duke of Richmond brought in a motion for '780. annual Parliaments, universal suffrage, and equal electoral districts. No division. Mr. Pitt, In 1783, Mr. Pitt proposed to disfranchise corrupt 1 Laws were passed against bribery in 184 1, 1852, 1854, 1858, and 1863. By the Corrupt and Illegal Practices Prevention Act of 1883, a candidate guilty of corrupt practices is incapacitated for ever repre- senting the constituency in which the offence took place, and may not be elected for any other for seven years. Persons convicted of bribery are liable to a fine of £ 100 and a year's imprisonment. THE CENTRAL ASSEMBLY. 145 boroughs^ and to increase county and metropolitan members. Lost by 293 to 149. In 1785, Mr. Pitt again proposed to amend the repre- 1785. sentation by redistributing the seats of the rotten boroughs amongst the counties, and by extending the county franchise to copyholders. The owners of the condemned boroughs were to be compensated by the State. Lost by 248 to 174. In 1790, Mr. Flood moved for the addition of one hundred Mr. Flood, members, to be elected by resident householders of counties. I7 No division. In 1793, and 1797, Mr. Grey moved to increase the Mr. Grey, number of county members, to extend county franchise, and 1?93t I?97 ' to have uniform household franchise in boroughs. Lost by 232 to 41, and by 256 to 91. In 1809, 181 7, 181 8, 181 9, Sir Francis Burdett moved for Sir f. Bur- reform, and proposed electoral districts, annual Parliaments, ^\$i, and universal suffrage. All lost by large majorities. In 1820, Lord John Russell moved to disfranchise the Lord John corrupt boroughs, and to give the seats to large towns, and proposed means to check corruption ; he brought in other motions on the subject in 1821, 1822, 1823, 1826, and 1830, whilst in 1829 Lord Blandford proposed a measure. In March, 1831, the First Reform Bill, a measure of Lord First Reform Greys ministry, was brought forward by Lord John Russell ; its provisions were to disfranchise 60 small boroughs, to take away one member from 47 others, and to give the seats to certain counties and towns. This Bill was lost by a sudden dissolution. In the new Parliament which met in June, 1831, the Bill Second was passed (Sept.) by 345 to 236, but was rejected by the Sept. 1831. Lords by 199 to 158. In December of the same year a Third Reform Bill was Third brought in, and passed, March 1832, by 355 to 239; in passed 1832/ June it passed the Lords (who had been intimidated by the threat of a fresh creation of peers) by 106 to 22. By the Reform Act of 1832, fifty-six rotten boroughs its pro- were disfranchised, thirty boroughs lost one member, and L 146 CHAPTER III. Reform Bill 1867. Ballot. one constituency (the united boroughs of Wycombe and Melcombe-Regis) lost two members; twenty-two large towns had two members given them, twenty had one mem- ber ; the number of county members was increased from 94 to 159. A £10 franchise was given to the boroughs, and the county franchise was extended to copyholders and leaseholders. Further Reform Bills were introduced by the Earl of Derby in 1859, and by Lord John Russell in 1852, 1854 and i860, but they failed to become law, mainly owing to the unwillingness of the middle classes to share their political privileges with the artisans and working men. However, in 1867 the Conservative ministry of Lord Derby succeeded in passing a Reform Bill, which gave an additional member to Leeds, Liverpool, Birmingham and Manchester, created 10 new boroughs, and restricted 38 existing ones to one member. The county franchise was reduced to £12, and a lodger franchise was added ; a household franchise of all ratepayers on the register was created, and the franchise was given to all lodgers occupying for a year lodgings of the annual value of £10. One great result of the Act was to enfranchise skilled and to some extent, unskilled, labour, and thus to deprive the middle classes of that monopoly of political influence which they had enjoyed since the Reform Act of 1832. (For Representation of the People Act, 1884, and Redistribution of Seats Act, 1885, see pp. 133, 137.) The Ballot. As early as 1641 the lesser gentry in the Scotch Parliament asked for permission to give their votes by ballot 1 , and in 1646 the Presbyterians made an un- successful attempt to introduce the system into the English House of Commons 2 . Vote by ballot for the election of members of Parliament seems to have been first proposed in the reign of William III 3 , but nothing more is heard of it till a century later, when it was advocated by Sir Francis Burdett in 181 8, and Mr. O'Connell in 1830. 1 Gardiner, Hist, of England, 1603-42, x. 21. * Ibid. Greac Civil War, ii. 529. 3 Diet, of Eng. Hist. art. Ballot. THE CENTRAL ASSEMBLY. 147 In 1833, Mr. Grote's motion for its adoption was rejected by 211 to 106, and his subsequent motions in 1835, 1836, 1838, and 1839 were all lost by large majorities. The Ballot, which was one of the five points of the ' Peoples' Charter' 1838-48 (see Chartists, p. 248), was again proposed by Mr. Ward (1842); Mr. Hume (1848), and Mr. Berkeley (1849, '852, i860). A committee, appointed to inquire into Ballot Act elections (1869), recommended its adoption, and in 187 1 a Ballot Bill was passed by the Commons, and thrown out by the Lords. It was, however, passed in the following year (35 & 36 Vic. c. 33). Party Government. Parties 1 may be traced as far back Party as the reign of Elizabeth, when the Puritans appear as a body Puritans, of men holding the same views on definite religious and political questions, and trying to secure their establishment in opposition to the wishes of the Queen and her ministers. Definite Parliamentary parties date from the Long Parliament of 1 64 1, which contained men ■ opposed to one another in the House of Commons ... on a great principle of action, which constituted a bond between those who took one side or the other V The opponents of arbitrary government in Church and State became known as Roundheads, while the Roundheads, supporters of the King received the name of Cavaliers. At the Restoration, the Cavaliers were entirely in the Cavaliers, ascendant, but by the time of the dispute on the Exclu- sion Bill, 1679, the other party had revived, and the two opposing factions obtained the names of ' Petitioners', i. e. Petitioners, those who petitioned the King to summon a new Parlia- ment as soon as possible, and ' Adhorrers,' who were the Abhorrers. supporters of the Crown, and expressed their abhorrence of the petitions, as calculated to coerce the King. Shortly afterwards these two parties received the names of Whigs Whigs and . _ . ° Tories. 1 Party, is a body of men united for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed.' — Burke, Present Discontents. 1 A party is a body of citizens who agree in desiring to see the business of legislation and government carried on in a particular way.' — Raleigh, Elementary Politics, p. 78. a Gardiner, Hist, of England, ix. 281. L 2 I48 CHAPTER III. and Tories. The term Whigs l , or Whiggamores, had been applied to the Scottish Covenanters in 1648, and was 'now transferred to those English politicians who showed a dis- position to oppose the Court, and to treat Protestant Nonconformists with indulgence V The Tories were so called from the name of certain Irish robbers, ' because,' says May 3 , ' the supporters of the Duke of York, as Catholics, were assumed to be Irishmen/ Roughly speaking, the Tories were the upholders of absolute monarchy, the Whigs desired a monarchy limited by Parliament. ■ 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 impossible to swerve ; whereas a Whig deemed all forms of Government subservient to the public good, and therefore liable to change when they should cease to promote that object 4 .' After the Revolution of 1688, the more extreme Tories developed into Jacobites, who con- tinued to disturb the country until after the crushing of the rebellion in 1745. After that, the Tory party became the supporters of the King of England. During this period, remarks Sir T. Erskine May, 'the Whigs, installed as rulers, had been engaged, for more than forty years after the death of Anne, in consolidating the power and influence of the Crown, in connection with Parliamentary government. The Tories, in opposition, had been constrained to renounce the untenable doctrines of their party, and to recognise the law- ful rights of Parliament and the people 5 .' Party govern- ment, however, cannot be said to have been established until the reign of George I ; e.g. although William III, between 1693 and 1696, chose his ministers from the Whigs, the ministry, from their unity, being popularly The 'junto.' known as * the Junto,' yet, on the loss of their majority at the election of 1698, they refused to resign. By degrees, however, the present ministerial system became established, 1 Another derivation of Whig is a Lowland term for sour whey. 2 Macaulay's Hist. i. 257. s ii. 135, note 2. 4 Hallam, iii. 200. 6 ii. 137. THE CENTRAL ASSEMBLY. 149 by which, as the nation, and consequently the Parliament, is divided broadly into two great parties, one of which must have the control of the executive, the ministers are bound to be of the same party as the majority in the House of Commons, and to stand or fall together. The great advantage of party government lies in the ' Opposition,' The Opposi- which forms a safeguard against any infringement of liberty. To trace the history of party during the latter half of the eighteenth and during the present century, would be to write the whole Parliamentary history of the period. (See Cabinet and Ministry, (pp. 46-8 sq.) Coalition Ministries. It has occasionally been thought Coalition r y ,. , . 3 . r Ministries. necessary for the two parties to combine, and to form Coalition Ministries, either in opposition to the influence of the Crown or Court party, or because neither party by itself is strong enough to form a government, and therefore the two parties agree to sink for a time their minor differences to carry out some important line of policy on which they are at one. In 1744, Henry Pelham, whose policy was 'to conciliate and unite under himself every man whose displeasure could be feared/ formed a Coalition Ministry, which lasted until his death in 1754. This ministry, which was a successful one, is known, from the variety of its composition, as the Broad-bottomed Adminis- Broad- tration. In 1873, after the death of Lord Rockingham (1782), Ad'Ssua- a coilition was formed by the parties of Lord North and tlon ' I 744-54- Mr. Fox (who had been bitter enemies), against the govern- ment of Lord Shelburne, who was forced to resign, Feb. 21, on a question relating to the conduct of the American War. The King's policy of dividing and weakening the parties had made this coalition necessary. It was headed by the Duke of Portland ; the King, however, found himself strong enough to dismiss it in December of the same year, on the defeat of Fox's India Bill in the Lords. As the coalition of coalition had a large majority in the Commons, a crisis was I783 ' imminent, and was only obviated by the genius of Pitt, who in a few days formed a ministry which was practically 15° CHAPTER III. Coalition of 1806. Coalition of 1852. I mpeach- ment. a coalition. On the dissolution of Parliament in March, 1784, 160 of the supporters of the coalition lost their seats 1 , and Pitt obtained a large majority. In 1806, the Whigs, under Fox, formed a coalition with Lord Grenville and Windham, and with Lord Sidmouth and the King's party. This ministry was known as the ministry of ' all the Talents.' ' It was/ says Sir T. Erskine May, ' a coalition between men as widely opposed in political sentiments and connections as Mr. Fox and Lord North had been twenty-three years before, but it escaped the reproaches to which that more celebrated coalition had fallen a victim 2 / The ministry fell in 1807, in consequence of its support of a Catholic Relief Bill. In 1852, a Coalition Ministry of the Whigs and the followers of Sir Robert Peel was formed under Lord Aberdeen; it fell in January, 1855, owing in great measure to the charge of mismanaging the Crimean war, brought against it by Lord Derby. Impeachment is the prosecution of an offender by the Commons in Parliament, before the Lords, who act as judges, the judicial power of Parliament having been declared to lie with the Upper House alone ; (1399 P- 128). The Commons deliver the accusation at the bar of the Lords, adducing evidence in support of their case, which is con- ducted by managers; articles of impeachment are drawn up, and the trial takes place in Westminster Hall before the Lords, acting as judges, and presided over, in the case of the trial of a peer, by the Lord High Steward (p. 258), in the case of a Commoner, by the Lord Chancellor; the Lords pronounce the accused 'guilty' or 'not guilty,' but cannot give judgment unless the Commons demand it. By omitting to demand judgment, the Lower House can exercise an indirect power of pardon. Impeachment has been used by the Commons chiefly as a means of controlling the actions of the ministers of the Crown. A peer may be impeached for any offence, but until 1689 it was uncertain whether 1 They were known as ' Fox's Martyrs.' 2 ii. 178. THE CENTRAL ASSEMBLY. 151 a commoner could be impeached for a capital offence (see Filzharris' case, p. 155). The first instance of impeachment was that of Lords Latimer and Neville (the Chamberlain and Lords Steward), and certain commoners (chief of whom was one Neville! an Richard Lyons, a trusted agent of the King), by the Good I3?6 ' Parliament, 1376. The accusation was that of having bought up the King's debts, and of having used various means of extortion; they were all convicted, and sentenced to imprison- ment, fine, and banishment. This action on the part of the Commons established their right of impeaching the Kings ministers for conduct prejudicial to the welfare of the State. The next instance was Michael de la Pole, Earl of Suffolk, Earl of the Chancellor, 1386, who was charged with misappropriation 1386. of revenue to his own use, with having lost the town of Ghent *by his negligence, and with various acts of maladministration; he was condemned to imprisonment and forfeiture. His im- peachment was due to political causes ; 'it is quite clear/ remarks Dr. Stubbs, 'that in his administrative capacity he was equitably entitled to acquittal, and that it was not for the reasons alleged that his condemnation was demanded 1 .' This impeachment clearly established the fact that ministers are responsible to the nation as well as to the King. Other important instances are — 1388. The judges, who, in answer to Richard, declared the Commission of Reform illegal, 1387, were impeached and exiled. At the same time, Sir Simon Burley, Sir James sir Simon Berners, Sir John Salisbury, and Sir John de Beauchamp i 3 U 88. e> ' c "' of Holt, were impeached for treason, and executed. In February, 1450. William de la Pole, Duke of Suffolk, Duke of being impeached, threw himself on the King's mercy, and i 45 o? ' was exiled for five years. From this time, until the reign of James I, no regular instance of impeachment occurs (although the proceedings against Wolsey in 1529, are somewhat analogous), owing to the subserviency of Parliament under the Tudors, and to the preference shown for Bills of Attainder (p. 157). 1 »• 475- *53 CHAPTER III. Middlesex, 1624. Mompesson In 1 62 1, however, Sir Giles Mompesson and Sir Francis and Mitchell, . ' r 1621. Mitchell were impeached for exactions and frauds connected with certain monopolies held by them, and were condemned to fine and imprisonment (p. 201). Bacon, 1621. In the same year, several other impeachments took place, the most important being that of Lord Chancellor Bacon, which re-asserted the right of the Commons to hold ministers responsible for their acts. He was charged with receiving bribes, found guilty, and sentenced to imprisonment, and to pay a fine of £40,000. In 1624, another minister, Lionel Cranfield, Earl of Middlesex, Lord Treasurer, was impeached for bribery, and convicted. His impeachment is noticeable as having been brought about by Prince Charles, and the Duke of Bucking- ham, from motives of private enmity; it finally confirmed the constitutional right of the Commons to impeach ministers of the Crown. From this time forth, owing to the bitter complaint of Middlesex, counsel were allowed to aid the accused. In 1626, George Villiers, Duke of Buckingham, was im- peached for accumulating offices, lending ships to be used against the Huguenots, and administering medicine to the late King. He was saved by the King dissolving Parliament. In 1628, Dr. Mainwaring was impeached for preaching in favour of the King's absolutism, and power to levy illegal taxes. He was condemned to a heavy fine, and imprison- ment. He was subsequently rewarded by the King, who gave him the see of St. David's. In November, 1640, Thomas Wenlworth, Earl of Sir afford y was impeached of high treason, for violating the Irish laws, instigating the King to make war on the Scots, raising an army of Irish Papists, and conspiring to subvert the funda- mental laws and established government of the realm. None of these charges amounted to treason as defined by 25 Edw. Ill, for Strafford was guiltless of any act against the person or authority of the King. The Parliamentary managers therefore took up a new position, asserting that Bucking- ham, 1626, Dr. Main- waring, 1628. Strafford 164a THE CENTRAL ASSEMBLY. 153 an attack on the constitution was practically an attack on the Crown, since the latter was thereby exposed to great danger. It would have been grossly unjust to condemn the earl on such a charge, for it enunciated a principle which was entirely new, and rested on the baseless assump- tion that Strafford had deliberately intended to alter the constitution. When it became clear that the Lords would probably acquit the accused, the Commons brought in a Bill of Attainder (April 1641), which passed the Lords by a narrow majority, and received the reluctant consent of the King. The earl was executed on May 12, 1641 \ In December, 1640, Archbishop Laud was impeached of Laud, 1640. high treason for attempting to alter the religion and funda- mental laws of the realm. The articles were voted by the Lower House in February, 1641, and Laud was committed to the Tower. The actual trial began in March, 1644, but as none of the charges fell within the existing law of treason, it seemed probable that the Lords would acquit the prisoner. The Commons accordingly dropped the impeachment, and brought in an ordinance of attainder, which passed the Lords in January, 1645. Laud produced a royal pardon, dated 1643, but it was not accepted, and on January 10 he was beheaded. In 1667, Edward Hyde, Earl of Clarendon, the Chancellor, Clarendon, was impeached of high treason for betraying the King's counsel to his enemies, selling Dunkirk to the French, violating the liberty of the subject, and designing to govern the country by a standing army. The first article was the only one which amounted to high treason. The Lords refused to commit the accused on a general charge, and Clarendon fled to France. He was forbidden to return under pain of incurring the penalties of high treason, and died at Rouen in 1674. In 1678, Thomas Osborne, Earl of Danby (afterwards Danby, 1678. Duke of Leeds), was impeached of high treason, for having, by the King's order, written a letter to Montague, the 1 See Gardiner, Hist, of England, 1603-1642, ix. 235-370. 154 CHAPTER III. English minister at the Court of Versailles ; in this letter the King offered for six million livres ' to keep a neutrality, to recall his troops from Flanders within two months, and not to assemble his Parliament for six months.' The Lords re- fused to commit Danby, on the ground that the charge was general, not specific, and a dissolution of Parliament ended the matter for a time. The impeachment was revived in the next Parliament, and Danby, in spite of his plea of the King's pardon, was sent to the Tower, April, 1679. After lying in prison for some years, waiting for his case to be decided, he was discharged by the Lords, May 1685, and subsequently rose to high honours under William III. Danby's impeach- ment is of the greatest constitutional importance ! , the chief points being — (1) The letter, which formed the chief charge against him, was written at the King's command, and bore the endorse- ment ''this letter is writ by my order, C. R! This was held important to be no excuse ; and the principle was clearly established Kby? that a minister cannot plead the royal commands in justification of an unconstitutional, or illegal act. (See Lord Oxfords case, p. 156, and Ministerial Responsibility \ p. 46.) (2) A question was raised as to whether the dissolution, or prorogation, of Parliament put an end to an impeachment. In 1673 it had been decided, on the report of the Committee of Privileges of the Lords, that Appeals, not decided \ in one Session of Parliament, continue in statu quo until the next Session.' In 1679, the Committee of Privileges held that the same rule applied to impeachments; in 1685, this resolution was reversed by the Lords, and the impeachment, which had been hanging over Danby for six years, was consequently terminated. In the case of Warren Hastings, 1788-92, it was finally decided that an impeachment pending in the House of Lords is not terminated by a dissolution (p. 157). (3) The Commons held that the royal pardon could not be pleaded in bar of an impeachment. The question was not settled at the time, but in 1701 the Act of Settlement provided 1 See Hallam, Const. Hist. ii. 410-420. THE CENTRAL ASSEMBLY. 155 1 that no pardon under the great seal of England be pleadable to an impeachment by the Commons in Parliament/ The Crown can pardon offenders after conviction, but to have allowed it to do so before judgment had been pronounced would have been subversive of the doctrine of ministerial responsibility. (4) The practice of impeachments on a general, and not a specific, charge of treason (as in the cases of Strafford and Clarendon), was checked by the refusal of the Lords to commit Danby at the beginning of the impeachment, 1678, on a general charge of treason. (5) The Commons objected to the votes of the Bishops in questions of life and death, even in the preliminary stages of the inquiry which might influence the subsequent issue. The Lords, however, decided that the Bishops had a right to sit, and vote, in Parliament in capital cases ' until judgment of death shall be pronounced! This decision was in accordance with the eleventh article of the Constitutions of Clarendon (App. B), which provided that Bishops should vote until it came to the question of 'life or limb 1 .' It should be noted that when the Bishops withdraw before the verdict is given, they invariably enter the protest ' saving to themselves, and their successors, all such rights in judicature as they have by law, and by right ought to have' (p. 125). In 1 68 1, Edward Fitzharr is was impeached of high treason, Fhzhams, for having promulgated a treasonable libel. An action had l68l# been already commenced against him in the Court of King's Bench, and the Lords voted that, as a Commoner, he should be proceeded against at Common law. The Commons re- solved that ' it is the undoubted right of the Commons in Parliament assembled to impeach before the Lords in Par- liament any Peer, or Commoner, for treason, or any other crime or misdemeanor, and that the refusal of the Lords to proceed in Parliament upon such impeachment is a denial of justice, and a violation of the constitution of Parliaments 2 .' There were several precedents for the impeachment of Com- 1 Sel. Charters, 139. 2 Commons' Journals, March 26, 1681. 156 CHAPTER III. moners, e.g. Sir Simon Bur ley and others, 1388, Sir Giles Mompesson and others, 162 1. 'A Commoner,' says Black- stone, ' cannot be impeached before the Lords for any capital offence but only for high misdemeanors/ Chief Justice Scroggs was, however, impeached (1681), of high treason, and in 1689, $* r Adam Blair, and four other Commoners, were also impeached of high treason, and the Lords resolved to proceed in the impeachment. The case of Sir Simon de Beresford, 1331 (4 Ed. Ill), is not a case in point; he was not impeached, but charged with treason by the Crown before the 'earls, barons, and peers'; the Lords at first refused to try the case on the ground that he was not a Peer ; they sub- sequently complied, in violation of the thirty-ninth article of Magna Carta, declaring, however, that 'the aforesaid judg- ment now rendered be not drawn to example or consequence in time to come, whereby the said Peers may be charged hereafter to judge other than their Peers, contrary to the laws of the land, if the like case happen, which God forbid 1 .' Before the dispute on Fitzharris' case was ended, Parliament was dissolved, and the accused was convicted in the Court of King's Bench, his plea that an impeachment was pending against him not being allowed. Portland and In 1701, the Whig Lords, Portland, Orford, Somers, and i 7 146). The Ballot Act, 1872 (35 & 36 Vic. c. 33), (p. 147). The Corrupt Practices Act, 1883 (46 & 47 Vic. c. 51), (p. 144, note). Representation of the People Act, 1884 (48 Vic. cc. 3, 15), (P- *35). Redistribution of Seats Act, 1885 (48 & 49 Vic. c. 23), (P- *37)- Names of Parliaments. Names of The Mad Parliament, met at Oxford, 1258, and passed the « Mad> > I2s8 . Provisions of Oxford ; so called by the supporters of Henry III (p. 16). l6o CHAPTER III. 'Great' or The ' Great,' or, as Dr. Stubbs has well called it, the 1295. ' • Model/ Parliament, 1295; the first complete , or model, Parliament (p. 131). 'Good,' 1376. The Good Parliament, 1376, so called from its attempt under the Black Prince to end abuses, and initiate reform ; its efforts were ineffectual, owing to the death of the Black Prince, and to the return of John of Gaunt to power (pp. 47, 151). or^Merd" 1 ' The ' Wonderful" or ' Merciless ' Parliament, 1388, so called less,' 1388. f r om the proceedings of the Lords Appellant, and its im- peachment and execution of Sir Simon Burley, Sir John de Beauchamp of Holt, and others of the King's friends (p. 151). oy« n L e a a y_ ned; The Unlearned Parliament, 1404, from the fact that lawyers men's/ 1404. were entirely excluded ; also called the Laymen s Parliament, as very many lawyers at this time were clergy. 'Of Bats,' Ihe Parliament of Bats, 1426, derived its name from the 'bats,' or clubs, carried by the two hostile factions which supported Gloucester and Bedford. The Reformation Parliament, 1529, from its abolition of the Papal Supremacy in England, and reform of the English Church (pp. 285-7). ^Addled,' The Addled Parliament, 16 14, from its sitting only two months, and passing no Bill at all. 'Short,' 1640. The Short Parliament, 1640, April 13th to May 5th. • B? e n s f e'd "" The Long Parliament, Nov. 1 640-1 660, also called by 1640— 1660. the Presbyterians the Blessed Parliament, owing to its having put an end to Episcopacy. '?8 mp '' ^ e R um P PoLrliament, 1648, consisted of the members of the Long Parliament remaining after the Presbyterian party had been driven out by Colonel Pride ; about fifty remained. 'Little 'or The Little Parliament, or Barebones Parliament (also ' Barebone s Parliament, called The Supreme Assembly of Notables or The Assembly of of Notables,' Nominees), 1653, was chosen by Cromwell and his officers, from a list of names submitted by the ministers of the various independent Churches. It consisted of 139 members, subse- quently raised to 144, and took its name from Praise God Barbone, one of the members for London. ' Reforma tion,' 1529 THE CENTRAL ASSEMBLY. l6l The First Convention Parliament, 1660, so called from First • Con- meeting without a summons from the King. i66o!° n ' The Second Convention Parliament, Jan. 1689, for the Second 'Convention, same reason. I es 9 . The Pensionary Parliament, May 1661 — Jan. 1679, so 'Pensionary' named from the fact of most of its members being bribed by 1661— 1679.' either France or Spain ; also called The Drunken Parliament. During the session of 1674 not a single Bill was passed, although it is said that £200,000 was expended in bribery. CHAPTER IV. LEGISLATION. Anglo-Saxon Anglo-Saxon laws were enacted by the Kins: with the Legislation. j ° counsel and consent of the Witan, and were proclaimed in the shire-moot (p. 68) ; they usually took the form of re- cording, and amending, existing customs, previously handed down by oral tradition, and are often difficult to explain, owing to our ignorance of the customs referred to. Some of the more ambitious attempts at legislation, e.g. by Alfred, Codes and Ethelred, and Canute, have been dignified by the name of Dooms. ° * Codes, or Dooms. Anglo-Saxon Legislation *. There are some famous laws ascribed to Dyvnwal Moel- Mud of Wales {arc. 600). Etheibert, Elhelbert of Kent icirc. 600), Lothaire. and Edric of Kent Lothaire and v . * Edric. (arc, 680), issued laws chiefly concerned with judicial matters, e.g. fixing of penalties. Ethelbert's laws were probably a summary : they commence with a clause for the protection of Church property. wihtred. The laws of Wihtred of Kent (arc, 696) granted freedom from burdens to Church lands, forbade Sunday labour, and idolatry, as well as regulated matters of justice. ini. The laws of Ini of Wessex (circ. 690) dealt with the miscarriage of justice ; these laws contain the first mention of the King's prerogative of mercy, e.g. a man compounding a felony, if an ealdorman, is ' to forfeit his shire, unless the King is willing to be merciful to him! Some laws, 1 Sel. Charters, pp. 61-64. LEGISLATION. 1 63 which have been lost, were issued by Offa of Mercia (arc. Offa. 780). Alfred (arc. 890) was not an original legislator, but Alfred, 'gathered the laws together' which previously existed, and embodied them in a Code. They refer mainly to hots, wiles, wers, and the like (p. 79). One is an anticipation of the Law of Entail * and one makes treason deathworthy (p. 3). Edward the Elder* (arc. 920) issued laws concerning the Edward the 'ranks of the people'; they declare the amount of land necessary for a ceorl to become thegnworthy, and give privi- leges of thegnhood to successful scholars, and merchants (p. 232). Athenian's laws 3 (arc. 030) issued at Greatley, Faversham, Atheistan, • 1 9 2 5 — 94°« Exeter, and Thundersfield, were chiefly against theft, and for the establishment of associations of mutual responsibility (p. 74). The laws against theft were very severe, the penalty being usually death. Edgar 4 (959-975) issued an ' Ordinance of the hundred,' Edgar 959— ordered justice to be done to all, and that 'one money, one measure, and one weight pass, such as is observed at London and Winchester.' Edgar gave the Danes the privi- lege of making ' such good laws as they may best choose.' Ethelred II. 5 (070-1016), at Woodstock, established dorks Ethdredii. . 979 — 1019. or sureties, issued a law on the presentment of criminals which closely resembles later procedure 6 (pp. 74, 84 sq.), enforced the fyrdwite (p. 305), and decreed ' mild punish- ments ' instead of death (p. 77). Canute 1 (1016-1035) confirmed the laws of Edgar, and Canute, 1016 v a -1035. 1 • The man who has bocland and which his kinsmen left him, then ordain we that he must not give it from his msegburgh ^kindred), if there be writing or witness that it was forbidden by those men who at first acquired it.' Sel. Charters, 63. 2 Sel. Charters, 64-65. s lb. 66, 67. 4 lb. 70-72. 5 lb. 72, 73. 6 'And that a gemot be held in every Wapentake; and the twelve senior thegns go out, and the reeve with them, and swear on the relic that is given them in hand, that they will accuse no innocent man, nor conceal any guilty one' — Sel. Charters, 72. 7 lb. 73, 74- M 2 1 64 CHAPTER IV. Edward the Confessor. afterwards issued a Code at Winchester. No one was to apply to the King for justice unless he had been first denied it in the lower courts. Every man was to be in a hundred, and in a tithing, and the burdens of heriots were to be lightened. This code also contains an enactment against purveyance (p. 179), and the earliest forest law (p. 183). The Danes continued to have separate laws under Canute. It is now generally admitted that the Laws of Edward the Confessor, so often demanded by the popular voice during a time of bad government, merely represent the sum of Anglo-Saxon customary law at the middle of the nth century 1 . * As a rule,' says Dr. Stubbs, ■ the publication of laws is the result of some political change, e.g. Alfred's code marks the consolidation of Wessex, Kent, and Mercia; Edgar's that of the whole of England. Charters. Legislation by the Norman Kings took the form of Charters, issued by the King, and assented to by the barons ; these Charters usually confirmed customs and liberties, and made grants. William I separated the spiritual and temporal courts by Charter (p. 274); Henry I, in his Charter of Liberties, n 00 (App. A.), endeavours to remedy the abuses introduced by his predecessor; the Charters of Stephen, and Henry II, were simply confirmations. Assizes. The Angevin Kings legislated by Assizes, a word which at that time meant edict, or statute. They were issued by the advice and consent of the national Council 2 , were pro- claimed by the Sheriffs in the county courts, and were usually temporary measures which remained in force during the pleasure of the Crown 8 . 1 Gneist, i. 166, note. As William of Malmesbury says, ' non quod ille statuerit, sed quod observaverit? 2 The Assize of Clarendon for instance was issued ' de assensu archiepiscoporum, episcoporum, abbatum, comitum, baronum, totius Angliae.' Sel. Charters, 143. 8 See Stubbs, i. 573-5. LEGISLATION. 1^5 Provisions. In the reign of Henry III, in addition to the old forms of Provisions. legislation, that of Provisions was added, e.g. Provisions oj Oxford, 1258, and of Westminster, 1259 (re-enacted as the Statute of Marlborough, 1267) (App. A.). From the reign of Edward I, legislation was by Statute and Edward 1. Ordinance. The right of the Commons to assent to taxation was successfully asserted long before their right to take part in legislation was recognised, and even under Edward I legislation was frequently carried out in assemblies to which the Commons were not summoned, e.g. the Statute Quia Emptor es was passed in such an assembly 1290; but from the 'Model' Parliament of 1295, the words ad faciendum 'to enact,' always formed part of the summons of the Commons to Parliament; from 1318 to 1327 Statutes were enacted 'by the assent of the prelates , earls, barons, and the commonalty of the realm,' and in 1322 Edward II provided that ■ all Edward 11. matters concerning the estate of the King, the realm, and the people should be treated of in Parliament by the King, and by the assent of the prelates, earls, barons, and com- monalty of the realm according as it hath been heretofore accustomed ' ; this was on the occasion of the repeal of the Ordinances passed 131 1, which were an exceptional form of legislation, and did not receive the consent of the King. Statutes founded on Petitions. From the time of Edward III. Statutes were usually founded Edward in. „ ' ; _ ,,. r \ • t Petitions and on petitions of the Commons, the form of an act being at Statutes. the request of the Commons, and by the assent of the prelates, earls, and barons ' ; from this arose the power of the Commons to initiate legislation. Petitions to the King (which might also be presented by the clergy, and by private persons) 1 , were referred to a Committee of the Lords, and answered by the Sovereign according to their advice; the judges then framed a Statute from the petition and its answer. But the petitioners were not always fairly dealt by. Sometimes the 1 Legislation does not ever seem to have followed on the petition of private individuals. Stubbs, ii. 591. i66 CHAPTER IV. Crown would not vouchsafe an immediate reply, and the petition was forgotten in the interval between two Parliaments : sometimes the wording of the Statute did not correspond to the petition on which it was based, while at others the intro- duction of a saving clause robbed the act of its value. Even when honestly drafted, the Statute might contain no provisions for execution, and was liable to be suspended 1 or possibly revoked 2 by the Crown. The Commons made strenuous efforts to remedy these defects. They demanded clear and immediate replies, devised numerous expedients to prevent the alteration of their petitions, prayed that Statutes already granted might be kept, and (1351) that no Statute should be changed at the petition of a single person. Such efforts were only partially success- ful ; and it was not until they made supply depend on redress, and sent up their petitions in the form of Bills, that the Commons could secure themselves against the malpractices of the Crown 3 . Ordinances. Ordinances. But the Statute was not the only form of legislation during this period. The King in Council had the power of issuing Ordinances, i. e. prerogative enactments which did not require the sanction of Parliament. They were usually of a tentative and temporary nature 4 , could be recalled by the King, and were not enrolled in the Statute book, though they might ultimately be converted into Statutes 6 . A Statute, on the other hand, was enacted by the King in Parliament, and claimed to be a permanent addition to the law. ' The Statute is primarily a legislative act, the Ordinance is primarily Difference between Ordinance and Statute. 1 Edward I suspended the Statute of Carlisle, 1 307. 8 Edward III revoked the Statutes of 1341. 8 See Stubbs, ii. 572-584. 4 In 1363 the King asked the Commons whether the matter under discussion should be dealt with by Ordinance or Statute. They decided in favour of the former, ' so that if there be anything to amend it can be amended in the next Parliament.' Rof. Pari. ii. 280. 6 E.g. in 1349 was issued the Ordinance of Labourers. This was subsequently converted into a Statute. LEGISLATION. ^67 In the reign of Edward I, the two are scarcely to be distinguished, but as the legislative and executive functions were gradually separated, a distinction began to appear which made itself clearly felt in the reign of Edward III. The Commons realised how important a weapon the King possessed in the Ordinance, and from the middle of the 14th century began to regard its employment with considerable jealousy. In 1353 they protested against the Ordinance of the Staple, saying that so important a matter ought to have been dealt with by Parliament, and in 1389 presented a petition praying that no Ordinance might be made contrary to the law of the land. Legislation by Ordinance disappeared in the 15th century only to re- appear in the 16th under the form of Proclamations (p. 169). At the present day, the Crown formally expresses its wishes by means of Orders in Council and Proclamations, but these Orders in are only made subject to the assent of Parliament, and are revocable by Statute. Initiation of Legislation. initiation of Previous to the reign of Edward II, almost all reforms in gls the law had been initiated by the King and the Council, or the Magnates. But the Commons had always possessed the right of petitioning the Crown for the removal of grievances, and this developed into a right to initiate legislation. To prevent the alteration of their petitions (p. 166), the Commons adopted the practice of introducing their requests as Bills 2 drawn as Statutes. These were sent to the Lords for consideration and if passed were laid before the King to accept or reject. Procedure by Bill is mentioned as early as 1429, and it became general in the reign of Henry VI. Aided chiefly "by their control over supply, the Commons exercised an increasing influence on legislation during the later mediaeval period. In 1322 their claim to a voice in national affairs was recognised by Statute: in 1377 they petitioned that no Statute might be made at the request of the 1 Stubbs, ii. 585. * Defined as Bill a fortnam actus in se continem. 1 68 CHAPTER IV. clergy until it had received their assent, and the act of 1382 against heretic preachers was repealed in the following Parlia- ment because it did not fulfil this condition. Their influ- ence is further shown by the change which was made in the enacting words of a Statute : the formula ' at the re- quest of the Commons ' is supplemented by ' by the authority of Parliament] and after 1485 the former phrase disappears altogether. Bills - Bills. Legislation by Bills is at present as follows, the procedure having remained unaltered since the Revolution of 1688. Bills may originate in either House, with the exception of Money Bills (p. 114), which must come from the Commons, and Bills affecting the Peerage, which must come from the Lords ; the Crown has the power of initiating general pardons Public Bilk alone. Public Bills must be introduced by a Member of the House, who first obtains leave ; the Bill is then brought in, and read a first time ; a motion is subsequently made that it be read a second time, and, if passed, the Bill is discussed by the House in Committee 1 (for the purpose of freer debate). After passing through Committee, the amended Bill is con- sidered by the House, and if further alterations are suggested it may be referred again to Committee. A motion is then made for the third reading, and the question put that it pass ; if passed, it is sent to the other House, where it goes through the same process ; if amended there, it is returned to the originating House for its assent to the alterations, and, if the amendments are not agreed to, a conference takes place between deputations from the two Houses, called managers, for the purpose of coming to terms ; or the reasons of dis- agreement are drawn up, and sent to the other House for consideration. This has been the course adopted since 1836. If they cannot agree, the Bill is dropped. If, how- 1 When the House is in Committee, it is presided over, in the Com- mons, by the Chairman of Ways and Means instead of the Speaker ; in the Lords by the Chairman of Committees ; a Member may speak as often as he pleases on the same question. LEGISLATION. 169 ever, they agree, or the Bill is passed without amendment, it is presented for the royal assent, which is given by the words Royal la reyne le veult ; if the royal assent is refused, the formula is la reyne savisera, and the Bill does not become law. Owing, how- ever, in a great measure to the development of the idea of Ministerial responsibility, the royal assent has not been refused since the time of Anne, who, in 1707, refused her assent to the Scotch Militia Bill. When a Bill has received the royal assent, it becomes an Act of Parliament. Private Bills, originating in the old petitions from private Acts of Par- . . « . . / TT ttt\ c u Hament. persons, and in later petitions {temp. Henry IV) Irom the Private Bills< Commons on private matters, refer to private and local rights, such as those of Corporations, Counties, Railways ; they are referred to Select Committees, instead of to a Committee of the whole House. The arguments of the promoters and opponents of the particular Bill are then heard before the Committee, which acts more or less in a judicial capacity. Tf passed by the Select Committee, the Bill becomes law in the same manner as a Public Bill, except that the royal assent is given in the words ( soil fait comme it est desire* 1 ! Private Bills were first separated from Public Bills in 1539. Legislative powers of the Crown. The Crown has attempted at various times, more especially under the Tudors and Stuarts, to arrogate to itself all power of legislature. 1. Indirectly, by influencing the House of Commons by bribery, and intimidation (pp. 142 sq). 2. Directly, by Ordinances, Proclamations, and the abuse of the Dispensing and Suspending power. (a) Proclamations 2 . Proclamations were issued by the Crown in Council by virtue of the discretionary power resident in the executive. They were intended to supplement or explain statute law, and to deal with matters on which no legislation existed. 1 The royal assent to a money bill is given in these words ' La Reyne remercie ses bons sujets, accepte leur benevolence et ainsi le veult.' 2 Vide Anson, i. 292-296. 170 CHAPTER IV. ProSania ^ ut * n 1 &39 tne y were pl ace d on an entirely new footing tions, 1539. by the Act of 31 Hen. VIII, c. 8, which provided that Proclamations made by the Crown with the consent of the Council should have the force of law, and might be enforced by such penalties as the King and Council thought fit : the Crown however might not repeal or suspend existing Statutes, set aside the common law, or punish any man with death or unlimited fine or imprisonment. Although this act, by which ' the legislative power won for the Parliament from the King was used to authorise the King to legislate without a Parliament 1 / was repealed by 1 Ed. VI, c. 12, § 4, the Crown showed no inclination to give up the use of Procla- mations. In 1534 (26 Hen. VIII, c. 10), Henry had been em- powered by Statute to employ royal Proclamations for the regulation of trade. By virtue of this act, the King ' without interference from Parliament modified the duty on sweet wines, and imposed a new custom 2 .' In the same way Mary prohibited the import of French, and increased the duty on sweet wines, while Elizabeth raised the duty on the former. James I used the royal control over trade as a means of increasing his revenue : impositions, were placed on currants and tobacco, and, fortified by the decision of the Exchequer in Bate's case, a new book of rates was issued in 1608. Proclamations such as these could at any rate claim a show of legality by virtue of the Statute of 1534, but when the Tudors employed this form of legislation to introduce ecclesiastical charges, suppress heretical books, fix the price of provisions, prohibit the building of houses round London, and to commit 'tellers of vain tales ' to the galleys, it was felt that the Crown was exceeding its powers. The validity of such Proclamations was ques- tioned in Mary's reign, and the judges laid down 'that the King may make a 'Proclamation to put the people in fear of his displeasure, but not to impose any fine, for- 1 Stubbs, ii. 588. 2 Prothero, Statutes and Const. Documents. Introduction p. lxxiii. LEGISLATION. 171 feiture, or imprisonment: for no Proclamation can make a new law, but only confirm and ratify an ancient one V Notwithstanding this decision, James I did not hesitate to curtail the liberty of the subject, levy impositions, limit the choice of the electorate, and regulate trade, by means of Proclamations. But he met with little support from the Bench. In 16 10, in the Case 0/ Proclamations, Sir E. Coke laid down : that a royal Proclamation could admonish men to keep the law, but could create no new offence', and that no offence not already punishable in the Star Chamber, could be made so by Proclamation. But the independence of the Bench was counteracted by the existence of the Star Chamber. As long as the Crown could rely on the sanctions attached to its decrees being enforced by a prerogative court, judicial decisions were not of much avail. Charles I frequently issued illegal Proclamations 2 , but complaints on this head are rarely lieard after the abolition of the Star Chamber in 1641. At the present day all Proclamations derive their ultimate authority from Parliament. In a case of emergency, the ministry would advise the Crown to issue a Proclamation on its own authority, and would endeavour to pass a Bill of Indemnity as soon as Parliament met 3 . (t>) The Dispensing power consisted in the right of the Dispensing Crown to dispense with the operation of particular Statutes in power ' individual cases. The right of the sovereign to exercise such power seems to have been undoubted, and at one time it may have served as a useful corrective to hastily drafted Statutes. But the petitions of the 14th century show that it was often grossly abused. In 1347 and 135T the Commons complain that the King had pardoned so many criminals before indictment that the county authorities were afraid to proceed against evil-doers. By 13 Ric. II, 2, no 1 Hallam, i. 337. a lb. ii. 25. 8 In 1766 Lord Chatham's ministry interfered by Proclamation with the export of wheat, in order to meet the scarcity caused by a bad harvest. When Parliament met an Act of Indemnity was passed after ' acrimonious debates.' Anson, i. 296. IT* CHAPTER IV. pardon was to be valid in cases of treason, murder or rape, unless the offence was specified in the pardon; and in 1444, when a Statute was passed limiting the Sheriff's tenure of office to one year, a clause was inserted providing that the Crown should not dispense with the penalties incurred by breaking the act 1 . Attempts were also made by the courts of law to limit this branch of royal prerogative, but they were not very successful. Thomas v. Under the Tudors and Stuarts the dispensing power was Sorrell, 1674. r . . _ . . , • j , 1 • , , frequently exercised, and was recognised both in the law courts and in Parliament 2 . In 1674, in Thomas v. Sorrell^ Chief Justice Vaughan decided that the Crown could grant a dispensation for the breach of a penal Statute which merely touched its own rights: but that general penal Statutes, and cases in which the rights of a third party were affected, might not be thus dealt with 3 . Godden v. In giving judgment in the collusive action of Godden v. Hales, Chief Justice Herbert said that the laws of England were the King's laws, and could be dispensed with at his pleasure. Armed with this decision James conferred Church dignities on Roman Catholics, and admitted them to his Council. Bill of The Bill of Rights declared that 'the pretended power of dispensing with laws, as it hath been exercised of late/ was illegal, and that in future dispensations from any Statute should be void, unless a permissory clause had been inserted at the time the act was passed. As a result, the Crown at the present day can dispense with no Statute except by authority of Parliament, and though the Bill of Rights did not trench on the royal prerogative of pardon, even this is only exercised on the advice of a responsible minister. Suspending. (c) The Suspending power was the right claimed by the King to suspend the operation of any Statute or body of Statutes : following the example of the Popes in their Bulls, 1 In the reign of Henry VII, the judges declared that the Crown could dispense with this Act in spite of the prohibitory clause. 2 See Prothero's Statutes and Const. Documents, p. 111, 113, 179 ; and the Introduction, p. lxviii. 3 Anson, i. 297-8. power. LEGISLATION. 1 73 grants and Proclamations were sometimes made, notwith- standing (non obstante) any law to the contrary. The practice originated in the reign of Henry III, and was frequently adopted by the Plantagenets ; e.g. Edward I in 1307 suspended the Statute of Carlisle, and his successors the Statute of Provisors. The right was claimed by the Tudor and Stuart kings, and its lavish use by Charles II and his brother was one of the chief causes of the Revolution of 1688. When Charles in 1672, and James in 1687, suspended all the penal laws relating to religion, it was clear that the legislative authority of Parliament was seriously threatened. The Bill of Rights accordingly declared 'that the pretended power of suspending the laws as assumed and exercised of late by royal authority without consent of Parliament, is illegal.' Chief legislative Acts to 1295. For details of the various Charters and Statutes see Appendix A. Laws of Ethelbert, 600. 1 „ Ini, circ. 690. J ^' „ Alfred, circ. 890. \ Edgar, circ. 959"975- f P- l6 3- „ Canute 1016-1035. ) Charter (undated), separating the ecclesiastical and tem- poral Courts, William I (p. 274). Charter of Liberties, Henry I, 1100. » ** I Stephen, 1 1 36. 2nd j of Henry II, 1154- Constitutions of Clarendon, 1 164 temp. Henry II a period of legal reform. Assize of Clarendon, 1166 Assize of Northampton, n 76 Assize of Arms, 1181 Assize of the Forest, 1184 Magna Carta, June 15, 1215 (p. 15). Charter re-issued by William Marshall, Earl of Pembroke, 1216, 1217 (p. 15). 174 CHAPTER IV. Charter of the Forest, 12 17. Statute of Merton, 1236 (20 Hen. III). Provisions of Oxford, 1258 (p. 16). „ Westminster, 1259 (p. 17). Statute of Marlborough, 1267 (52 Hen. Ill), (p. 18). Statute of Westminster I, 1275 (3 Ed. I). „ Rageman, concerning the appointment of Justices, 1276 (4 Ed. I). Statute of Gloucester (quo warranto), regulating an inquiry into the titles by which lands were held, 1278 (6 Ed. I). Statute of Mortmain (de reltgtosts), 1279 (7 Ed. I, c. 2), (p. 280). Statute of Merchants (de Mercatoribus), or Acton Burnell, 1283 (11 Ed. I) ; another 1285 (13 Ed. I, c. 3), (p. 233). Statute of Wales, 1284 (12 Ed. I, cc. 1 — 14). Statute of Westminster II (de donis conditionalibus), 1285 (13 Ed. I), (p. 213). Statute of Winchester, 1285 Statute of Westminster III (quia emptor es), 1290 (18 Ed. I, c. 1), (p. 214). CHAPTER V. TAXATION AND FINANCE. Ordinary Revenue of the Crown. Ordinary " . Revenue of i. Crown Lands. In Anglo-Saxon times the estates of the the Crown. Crown could not at first be alienated without the consent CrownLands - of the Witan, though about the time of Alfred this restriction seems to have been relaxed ; they were enlarged by the con- fiscations which followed the Norman Conquest, diminished by Stephen's lavish grants, resumed by Henry II in 1 155, granted again by John, and resumed by the Earl of Pembroke for Henry III, 1217, and by Hubert de Burgh, 1220. Under Edward II, alienation of Crown lands was forbidden, owing to the lavish grants to favourites, and a resumption was effected by the Ordinances, 131 1, (repealed 1322). During the wars of the Roses, many lands were forfeited to the Crown, but granted out again imme- diately, and under Henry VI, the revenue from royal demesne sank to £5,000. In consequence, Acts of Re- Lands. , - ■ * Acts of sumption were passed, 1450, 1450, 1407, 1473, M95 Resumption. (11 Hen. VIII, cc. 28, 29), and 1515 (6 Hen. VIII, c. 25). Crown lands increased greatly under Henry VII and Henry VIII, owing to forfeitures, and to the dissolution of the monasteries, 1539; the gain was, however, more than coun- terbalanced by the lavishness of Henry VIII. Much was sold by Charles I to raise money, and what he left was sold by the Parliament; the Parliamentary sales were, however, declared void at the Restoration. In 1702, it became neces- sary to restrain the alienation of Crown lands by Statute, owing to the lavish gifts of Charles II, and William III; 1 Sel. Charters, 128. Will. Newb. ii. c. 2. 176 CHAPTER V. Commission ers of Wood and Forests. Civil List. Rocking- ham's Civil List Act, absolute grants were entirely forbidden, but in spite of this, and of the forfeitures during the rebellions of 1715, and 1745, the annual revenue from this source, during the first 25 years of George III, was only £6,000. George III surrendered to the nation his interest in the Crown lands in return for a Civil List of fixed annual amount, and his example was followed by his successors. In 1794 their management was improved by Act of Parliament, and in 18 10 they were put - un ler the control of the Commissioners of Woods and Forests ; in 1888 the Crown lands produced £390,000. Since their surrender, the Sovereign has been able to hold, and dispose of, private property in the same way as an ordinary person 1 . The Civil List, first established at the accession of William and Mary, for the support of the royal household, the per- sonal expenses of the King, and the payment of civil offices and pensions 2 ,' consisted of £■; 00,000, £300,000 of which was raised by Excise duties (p. 192), the rest being from the hereditary revenues of the Crown. Under Anne, and George I, debts on the Civil List were incurred, and had to be paid by Parliament. George II was to have a Civil List of at least £800,000, Parliament engaging to make up any deficiency in the hereditary revenues ; in spite of this, however, in 1746, a debt of £456,000 had to be paid off. George III surrendered the hereditary revenues for a fixed sum of £800,000, relinquishing all claim to any surplus; in 1769, and again in 1777, debts were paid by Parliament, and on the latter occasion, the list was increased to £900,000. Frequent debates on the subject culminated in Lord Rock- ingham's Civil List Act, 1782 (22 Geo. Ill, c. 82), which regulated the expenditure, and diminished offices, pensions, and secret service money. The debt, however, increased, and the Civil List was again raised, 1812, and 1816, reaching in the latter year over a million, whilst various items of expenditure were removed. In 1831, William IV gave up the hereditary revenues of Scotland, the Civil List for Ireland 1 Anson, ii. 303. 2 May, i. 232. TAXATION AND FINANCE. 1 77 and other interests, accepting in exchange a Civil List of £510,000, which was still further relieved by the removal of judicial salaries, and other expenses. The Civil List of the Queen, which has been relieved from all extraneous charges, is £385,000, of which £1,200 may be granted annually in pensions. 2. The Ferm of the Counties, i.e. the amount collected ^™? f s ; he and paid by the sheriffs, in composition for the profits due to the King from the Shires for judicial proceedings, fines, rent, and the like ' ; (in Anglo-Saxon times this was paid in kind, as rent for leases of folkland, and known as feormfultum or ' sustentation'). The counties were let to the Feormfui- sherifTs at a fixed rate, thus opening the way for great ex- tortion, as whatever could be raised above the amount agreed upon, was kept. The towns, also, often compounded for tolls, markets, dues, and the like. 3. Income from, feudal incidents, e.g. marriage, wardship, Feudal successions, escheats, and the like (p. 211). These varied much, and were very burdensome. By the Charier of Henry 1 (1100), reliefs were to be just and lawful; by Magna Carta, they were fixed at £100 for an earl, or baron, and £5 for a knight 2 . Magna Carta also restrained the abuses of wardship, and marriage; and forbade aids to be imposed nisi per commune concilium regni, with the exception of the three regular feudal aids, i. e. to make the lord's eldest son a knight, to provide a dowry for his eldest daughter on marriage, and to ransom the lord's person 3 . This was confirmed by the Confirmatio Cartarum (1297), and by a Statute of 1340, which declared all aids whatsoever illegal, unless levied with consent of Parliament. Nevertheless, Edward III levied an aid to knight the Black Prince, 1346 4 . In 1 6 10, Lord Salisbury attempted to secure the abolition of feudal incidents in return for an annual grant of £200,000 ; the attempt, which was known as ' the Great Contract/ failed, J^'^f 1 1610. 1 Stubbs, i. 380. 2 Sel. Charters, 297 § 2. 3 Ibid. 298 § 12. * The aid was levied without the consent of the Commons and at double the amount fixed by the Statute of Westminster.— Stubbs, ii. 395. N i 7 8 CHAPTER V. Sale of Offices. Pleas of the Crown. Church. Revenue. Jews. Miscellane- ous. and the feudal exactions continued until surrendered by Charles II, 1660. A system of compulsory knighthood was employed to raise money by Edward I (1278, 1292), Edward VI, Elizabeth, James I, and Charles I (p. 199). 4. Sale of Offices, and Honours. A lucrative source of income, e.g. the Chancellor in 1130 paid £3,000 for his office 1 ; Richard I put up all sorts of offices for sale, including even bishoprics 2 , in order to raise money for his Crusade. James I sold peerages, and baronetcies, the latter title being created in 161 1, with the express intention of filling the royal coffers. 5. Proceeds of Pleas of the Crozvn, i. e. fines for offences tried before the Sheriff {e.g. murdrum), for not attending the local courts 3 , for breach of the forest laws (p. 183), on alien- ation of land, and the like. 6. Revenues from the Church, e.g. first fruits, and the custody of vacant sees (p. 275), which were often purposely left unfilled ; e.g. on the death of Lanfranc, William II left the see of Canterbury vacant for four years (1089- 109 3). 7. Exactions from the feivs (who were regarded as the King's chattels), especially by John, Henry III, and Edward I. Edward III borrowed large sums from the Florentine bankers, the Peruzzi, and the Bardi, and their bankruptcy in 1345 was due to the King's failure to dis- charge his obligations. 8. Miscellajieous Revenue from prerogative, and droits of the Crown, e.g. waifs and strays, wreckage, dues from markets, ports, mines, and salt works, treasure trove 4 , royal fish (/. e. sturgeon and whale) ; in early times also, from the sale of justice and protection ; in later times, from certain 1 Stubbs, i. 384. 2 Sel. Charters, 251. Ben Abb., ii. 90. *Et omnia erant ei venalia, scilicet potestates, dominationes, comitatus, vicecomitatus, castella, villae, praedia, et cetera iis similia.' William II also trafficked in bishoprics, selling the See of Wells to Giso. — See Wharton, Anglia Sacra, i. 295. 8 Sel. Charters, 66. 4 In early days ' treasure trove ' was valuable, as, in time of war, treasure of various kinds was frequently hidden in the ground. TAXATION AND FINANCE. 1 79 revenues vested in the Crown, e.g. droits of the Admiralty {i.e. prizes), and West India Duties; the hereditary revenues of Scotland; the revenues of the Duchies of Cornwall, and Lancaster. The interest of the Crown in most of these was given up by William IV, though certain droits, and the two Duchies were retained. 9. Emoluments springing from the royal prerogatives of Purveyance. (a) purveyance, (&) coinage, (c) possession of forests. (a) Purveyance (pourvoir, to provide), a prerogative of very early origin, was the right of purchasing provisions and necessaries for the royal household ' at a fair price, in pre- ference to every competitor, and without the consent of the owner ' l ; and of taking the horses, carts, and even personal services 2 of the subject, always without adequate remuneration and often without any remuneration whatever. Payment, when offered, was generally made in Exchequer tallies, and the sums were deducted from the next taxes paid in by the victims. The system was greatly abused, and frequently petitioned against. There are no less than forty Statutes against Purveyance, commencing with a law of Canute 3 : ' / command all my reeves that they justly pro- vide on my own, and maintain me thereivith ; and that no man need give them anything as feormfullum unless he himself be ivilling! Magna Carta forbids the King, or his bailiffs, to take any man's corn, or other goods, without payment on the spot, unless the owner voluntarily gives credit; or to impress any carriages or horses, or to take any man's timber, unless with the owner's consent*; the right is declared not to be vested in the Constables of the Royal Castles. Pur- Purveyance veyance was regulated by the Provisions of Oxford, 1258; by the Dictum de Kenilworth, 1266; by the Statute of Westminster I, 1275; by ihe Ariiculi Super Cartas, 1300; by 1 This was called Preemption. 2 E.g. William of Walsingham was empowered by Edward III to compel an adequate number of painters to work at St. Stephen's Chapel, Westminster, all refusing being liable to imprisonment. 3 Sel. Charters, 74. • lb. 300, §§ 28, 29, 31. N 2 l8o CHAPTER V. the Ordinances of 131 1 and by the Act of 1323-4 (17 Ed. II, c. 2). A series of statutes restraining the royal prerogative was passed in the reign of Edward III. At one time the King promised that goods should be valued by the constable and four discreet men of the neighbourhood, and that pur- veyors who gave less than the price fixed should be dealt Statutes of with as thieves ' : at another he conceded that nothing should be taken without the owner's consent 2 . In 1340 the clergy were protected from the abuses of purveyance, and in 1347 it was enacted that goods should be paid for on the spot if under 20s. in value, and within three months if exceeding 1362- that amount. Finally by 36 Edw. Ill, cc. 2-5 (1362), the name purveyor was changed to buyer, and the right of purveyance was restricted to provision for the personal needs of the King and Queen 3 . This Statute seems to have con- siderably lessened abuses, but the petitions presented by the Good Parliament (1376) and the subsequent legislation of Richard II and the Tudors show that the old evils had not dis- appeared or that new ones had sprung up. How vexatious Stuarts. some of them were may be seen from the petition of 1604. The Commons complained that cart-takers were in the habit of ordering four times the required number of vehicles in order to secure bribes from owners who wished to escape, and were guilty, in various other ways, of mis-using their powers for their own profit. Purveyors after appraising goods far below their value, would force the owner to accept a mere fraction of the money, and constables who arrested and justices who tried such offenders were often imprisoned 4 . In 1606 a royal Proclamation put an -end to many abuses of this nature, and in 16 10 the Crown offered, as part of the Great Contract (p. 177) to commute its rights for a fixed sum. 1 4 Edw. Ill c. 3 ; 5 Edw. Ill, c. 2. ; 25 Edw. Ill, c. 1. 3 14 Edw. Ill, st. i. c. 19. 3 'The abuse of purveyance accounts for the national hatred of Edward II, and for the failure of Edward III to conciliate the affection of the people, and helps us to understand why even Edward I was not a popular King.' Stubbs, ii. 538. 4 Gardiner, Hist, of England, 1603-42, i. 170. TAXATION AND FINANCE. l8l The plan fell through, but in the next year most of the shires agreed to a scheme by which the King surrendered his rights in return for a fixed composition \ Purveyance was abolished Abolished by Statute in 1660 (12 Ch. II, c. 24). (&) The Coinage was, from the earliest times, a royal The Coinage monopoly, and a source of royal profit ; it was a subject of legislation under Athelstan (' let our money pass throughout the King's dominions, and that let no man refuse '), Edgar, Ethelred 2 and Canute; the punishment for illegal coining being death. The first English coinage is said to have been at Colchester. Henry I substituted dismemberment for death as a punishment for false coining, and in n 25 mutilated all the false coiners on whom he could lay hands. The coinage was also depreciated by clipping, a process which frequently took place in the royal Mint itself. The right of private coinage was sometimes granted to a few nobles and prelates, on payment of a tax 3 . The anarchy of Stephen's reign was marked by the appearance of baronial mints, but Henry II put an end to this ' adulterine ' coinage, and issued a fresh one in 1158 in accordance with the terms of the treaty of Wallingford. This was followed by another in 1180 4 . Under John, the coin was made by German mer- chants called Easterlings (hence our word sterling, a term which first came into use 12 16); in 1278, Edward I renewed the coinage 5 , which was for the future to be round in order to prevent clipping, an offence of which the Jews were 1 Gardiner, Hist, of England, ii. 113. 2 ' Let no man have a moneyer except the King.' Ethelred III (997) quoted by Ashley, Econ. Hist. i. 1 67. The archbishops however seem to have exercised the right of coinage since the eighth century. — Stubbs, i. 221, note 2. 3 E.g. to the Bp. of Coventry. See Ruding's Coinage of Great Britain, i. 168. 4 Sel. Charters, 133. Ben. Abb. i. 263. 5 Before Caesar's invasion, there existed a British gold coinage, rudely copied from the Macedonian stater. After the Roman conquest this was replaced by the imperial currency, which in turn gave way to the Saxon. With slight exceptions, the silver pennies issued by Offa of Mercia in the last half of the eighth century remained the sole English coins till the reign of Edward I. A few gold pieces were struck by Henry III, but it was not till the reign of Edward III that a regular I 82 CHAPTER V. frequently guilty; he also depreciated the money by slightly statutes on diminishing its weight; in 1299, a Statute was passed (27 Ed. I. st. 3), forbidding the importation of bad money. In 1307 a royal ordinance decided that the coin should circulate at its nominal value, but nevertheless, it was necessary to demand a reform in the Articles of Grievance, 1309. The Ordinances of 13 n forbade the king to meddle with the coinage without the consent of the barons in Parliament, but this was repealed in 1322, and in 1352 the Statute of Treasons made false coining, or the introduction of bad money, a treasonable offence. This was confirmed in 1 416 (4 Hen. V. [vel 3 Stat. 2] c. 6). Edward III coined the pound of silver into two hundred and seventy groats instead of two hundred Depredation and forty ; this depreciation was carried still further by Coinage. Henry IV, who coined it into three hundred and sixty, though only a little over £700 worth of money was coined during the whole reign; and by Edward IV (four hundred and fifty). Henry VIII debased the coinage by introducing large quantities of copper, and coining the pound into five hundred and seventy-six pennies, gaining £50,000. Under Edward VI, the practice was continued; the pound was coined into eight hundred and sixty-four pennies ; Sharington, Master of the Bristol Mint, struck £12,000 worth of bad shillings * ; and in April, 1551, it was decided by the Govern- ment ' to make 20,000 pound weight, for necessity somewhat baser, to get gains £160,000 clear.' In August of the same year, it was found necessary to reform the coinage by making the real and nominal value agree, i.e. the nominal shilling became the real sixpence, the country thereby losing about a million. In 1560, an elaborate scheme of reformation was carried out by Sir Thomas Stanley; the debased coin was called in (a bounty of threepence being paid on every pound's worth of silver), and good money issued in its place. In 1562, and 1576 (18 Eliz. c. 1), clipping was declared treason, gold currency was introduced. Copper coins were first made in 1672 and were replaced by bronze in 1861. — Vide Diet, of Eng. Hist. art. Coinage. 1 The Lords of the Council had the privilege of private coinage. TAXATION AND FINANCE. 1 83 owing to the facilities afforded for the offence, from the coin being cut with shears in the mint. In 1640, a scheme of debasing the coinage was proposed, to obtain funds, which were much needed, but was negatived. In 1663, owing to the depreciation of the coinage from mutilation, the coins issued were stamped in a mill, instead of being struck by a hammer, and the milled coins had their edges stamped with a legend to prevent clipping; but the milled coin, being more valuable than the hammered, was either hoarded or exported, while the latter, continued in circulation, was constantly clipped and could be easily counterfeited. The evil became so great that it was necessary to issue a new coinage. In 1696 an Coinage Act act was passed which fixed a date after which hammered coin was no longer to be legal tender, and provided that the clipped coin should be brought to the mint and recoined on the milled principle according to the old standard. The cost, which was to be borne by the nation and not by individuals, was met by a window tax which produced £1,200,000. Newton became Master of the Mint, other mints were established at certain provincial towns, as York, Chester, and Bristol, and the new issue was soon complete. Besides the statutes Statutes mentioned above against the offence of coining, Coining, others were passed in 1416, 1572, 1697, 1742, 1774, 1779, and 1803. All previous Acls were repealed in favour of an Act of 1832, and the laws were further amended in 1861. (c) The Revenues of the Forests 1 (which were subject to Forest Laws, peculiar jurisdiction), and Forest Laws, the earliest being that of Canute : ' / will that every man ~be entitled to his hunting in wood and in field, on his own possession, and let every one forego my hunting ; take notice where I will have it untrespassed on, under penalty of the full li wile " V Under William I, who ' loved the tall deer as if he were their father/ 1 'In its older meaning' says the late Professor Freeman, 'a forest had nothing to do with trees. It is a tract of land put outside the common law and subject to a stricter law of its own, and that commonly, probably always, to secure for the king the freer enjoyment of the pleasure of hunting.' — William the Conqueror, 171. 2 Sel. Charters, 74. 184 CHAPTER V. hunting was regarded as a royal privilege, and the forests as the private property of the King; trespassers were severely punished, often by loss of sight ; large tracts of land were afforested, and their inhabitants driven away. This practice was continued by William Rufus; and Henry I, in his Charter of Liberties, 1100, refused to give up the forests 1 ; he also made several new ones which were surrendered by Stephen 2 . In his Charter to London, however, Henry pro- mises the citizens even greater hunting grounds than their predecessors. Henry established an independent system of Forest Courts (p. 64), subsequently perfected by Henry II, under whom visitations of the forest were held 11 67, and Assize of the 1 1 75. In 11 84 was issued the Assize of Woodstock, or the es, 11 4 . jr ores /^ comprising sixteen articles of great strictness, and making attendance at the Forest Courts compulsory. In 1 198 the Assize was re-issued and enlarged by the Justiciar, Geoffrey Fitz-Peter, and the fines exacted for breach of the laws were so burdensome, that by Magna Carta {Art. 44, 47, 48), persons dwelling outside the forest were exempted from attendance at the Forest Courts unless 'impleaded' for some offence; all forests made by John were to be dis- afforested, and all bad customs connected with the forest were to be inquired into, and abolished 4 . These concessions Forest were confirmed, and increased, by the Forest Charter of MX7. ' Henry III 5 , November, 12 17, which disafforested private land improperly afforested, and abolished the punishment of death and muiilation for forest offences. The Charter was, however, frequently infringed, in spite of a confirmation in 1225 6 , and Edward I was obliged to promise forest reform in the A rticuli Super Cartas, 1300. Special commissioners inquired into the abuses, and the reforms were carried out. In 1327 (1 Edward III, c. 1) the Charter of the Forest was confirmed and ordered to be strictly observed. The forest 1 Sel. Charters, 101. Art. 10. 2 lb. 120. 3 lb. 157. 4 lb. 302, and 348, § 2. 5 lb. 348. 6 E.g. according to Matthew Paris the forest charters were annulled in 1227, and the Close Rolls contain letters which reafforested six counties. — Stubbs, ii. 39. TAXATION AND FINANCE. 1 85 laws gradually fell into disuse until revived by Charles I, who, disregarding the settlement made by Edward I, enlarged the royal forests and exacted fines from trespassers (1634). The policy pursued by the Crown in dealing with the forests was very unpopular. These tracts of land were subject to the absolute will of the King, and were outside the ordinary law of the land. The regulations for their adminis- tration were framed rather for the preservation of game than for the welfare of those of the King's subjects who lived within their pale, and transgressors were very harshly dealt with. The mere attendance at the Forest Courts must have proved very burdensome to men who already found it irksome to present themselves at the sessions of the shire-moot. The boundaries of the forests were finally fixed by Parliament, in 1640 (16 Car. I, c. 16), as they existed in 1623. Taxation. • Taxation. In Anglo-Saxon times extraordinary taxation (e.g. the Angio- Danegeld) was levied with the counsel and consent of the Witan ; the Norman Kings, before levying a tax, which was Norman. not a regular feudal due, consulted their council, probably as a mere matter of form, as no instance of debate on a tax occurs during this period. The first instance of opposition to a royal demand for money occurs in 1163, when Becket quarrelled with Henry II about the Sheriff's aid l . This Angevin, reign is also noteworthy for the establishment of a system of class taxation, and for the introduction of taxes on moveables. In 1 198 a demand for money was resisted by the bishops of Lincoln and Salisbury, with the result that the demand was withdrawn, and the Justiciar, Hubert Walter, resigned. John sometimes levied taxes arbitrarily, sometimes with consent; scutages and carucages were raised, fines exacted, and move- ables taxed. But in proportion as the fact was realised that 1 It has usually been supposed that the dispute was caused by some proposed alteration in the payment of Danegeld (see Stubbs, Sel. Charters, 29, and Early Plantagenets, 68, 69) ; Mr. J. H. Round, how- ever, has recently shown that the tax under discussion was the auxilium vicecomitis, or Sheriffs aid. See Eng. Hist. Review, v. 750, and Stubbs i. 382, note 1. 1 86 CHAPTER V. Temp. Henry III. Temp. Edward Stuart. Taxation. taxation had become national, consultations on the subject increased, and, with the imposition of the tax on moveables, the idea arose that taxation should be more closely connected with representation (p. 128). In Magna Carta a clause was inserted against arbitrary taxation, but was omitted from the Confirmation of 12 16, owing to the ministers of the young King, Henry III, being unwilling to tie the hands of the executive at so critical a juncture. Under Henry III, aids were frequently refused, and in the Charter of 1225, appears the principle of redress of grievances preceding supply 1 , perfected under Edward III. The reign of Edward I presents a new feature in the system of taxation. It had hitherto been customary to issue special commissions to obtain the consent of the various local communities to a tax. After 1295 this was virtually abandoned, and the assent of the nation to the financial proposals ol the Crown was thenceforth expressed by its representatives in Parliament. In 1297 the Confirmaiio Cartarum forbade taxation not authorised by Parliament, but as tallage was not mentioned by name, further levies took place in 1304, 131 2, 1332. It was abolished by the Statute of 1340. The Commons also increased their power over the revenue, by asserting their right of appropriating supplies (this did not become a regular practice until Charles II, p. 115), auditing the public accounts (p. 116), and originating Money Bills (p. 114). Under the Lancastrian Kings, illegal taxation was rare, and even under the Tudors, the assent of Parliament was usually obtained, though money was occasionally raised by benevolences and monopolies (p. 200-1 ). James I asserted his prerogative to levy impositions by his arbitrary will, and was aided by the servility of the judges, e.g. Bates case (p. 198). Parliament frequently remonstrated, but the illegal taxation was con- tinued by Charles I, and was forbidden by the Petition 0/ Right, 1628; in spite of this, however, occurred the famous case of Shipmoney, 1637 (p. 199). Under Charles II, who received a fixed income of £1,200,000, taxation was heavy, 1 Sel. Charters, 354. TAXATION AND FINANCE. 187 though imposed by the authority of Parliament; James II had recourse to the illegal expedient of levying the customs by Proclamation (p. 192). By the Declaration of Right, 1689, it was declared illegal to levy money otherwise than with the consent of Parliament, and since the time of William III, the system of appropriation of supplies, based on the estimates for the year, has given Parliament the com- plete control of the administration. Taxation may be divided into (a) direct, (b) indirect. A. Direct Taxation. Direct Taxation Up to 1 188, fell entirely on land. (1) Danegetd 1 , first levied 991, by Ethelred II, at the sug- Danegeid gestion of Archbishop Sigeric (though the practice of paying ^ evle ' money to the Danes appears in the early part of Alfred's reign), to buy off the Danes; imposed by consent of the Witan ; levied occasionally only, e.g. 994, 1002, 1007 (36,000 pounds), 1012 (48,000 pounds), 1018 (82,500 pounds), consisted of 2f. on every hide of land ; abolished by Edward the Confessor, but reimposed by William I at 6s. on the hide, 1084. It became a composition paid by the Sheriff, and was a very unpopular tax ; the Barons of the Exchequer, many monasteries and the sheriffs were exempt from payment, and it seems to have afforded the latter great opportunities for extortion; Stephen promised to abolish it 2 , but it continued till 1162. It soon reappeared under the name of hidage, i. e. 2s. on the hide, and under Richard I became Hidage, car uc age, or 2s. on the carucate of one hundred acres, the Carucage, 1 • . , n , temf>. rate being raised to 5s., 1198 , 3J. on the carucate was Richard 1. demanded by John, 1200 4 . The tax was occasionally levied under Henry III, e.g. 1220, but died out as the newer forms of taxation were adopted. (2) Shipgeld (the precedent of shipmoney), (p. 199), levied Shipgeid. in Anglo-Saxon times for the defence of the realm, e.g. Ethelred, 1008, made every three hundred hides liable to 1 Sel. Charters, 106, 203. In 991 the tax was 10,000 pounds. - lb. 115, Hen. Hunt. 3 lb. 256, Kog. Hov. iv. 46. * lb. 272, Rog. Hov. iv. 107. i88 CHAPTER V. Scutage first levied, 1156. Becomes obsolete, temp. Edward III. Tallage. Tax on Moveables, first imposed, 1 1 88. furnish one ship, and in 1040, it was imposed for the support of Harthacnut's fleet. (3) Scutage, a feudal tax of 2s. on the knight's fee {scutum), and a great blow to the feudal system (first imposed n 56, and confirmed in the Toulouse war, 1159 1 ), was usually paid in commutation of personal service, and was, in this respect, a modification of the old fyrdwite* (p. 305); it was frequently levied under Henry II, Richard I, and John, and was in fact no small source of constitutional danger, as it provided the King with money to pay mercenaries, whom he occasionally used to oppress the people. Magna Carta provided that no scutage should be imposed except by the common consent of the nation. In 1231, a scutage of three marks was levied for the expedition to France. It was revived occasionally by Edward I, and Edward II, but became obsolete in the next reign, though there is an in- stance of its remission by Richard II, 1385. It was abolished at the same time as feudal tenures and purveyance, 1660. (4) Tallage, a tax on the towns, and demesne lands of the Crown, usually levied by a poll tax, e.g. a tallage of 2,000 marks levied from London in 121 4; 1,000 marks in 1222, 1 241, and 1252. By the de lallagio non concedendo (p. 19), an 'unauthoritative abstract' of the Confirmation of the Charters, 1 297, held to be a Statute by the Petition of Right (1628;, no tallage, or aid, is to be taken without the consent of all. In the Confirmatio Cartarum itself the word tallage is not used, and Edward I accordingly levied one in 1304 ; there was no opposition to this, but in 131 2 a tallage was resisted by London and Bristol. In 1332, Edward III attempted to collect a tallage, but the opposition of Parliament compelled him to desist. The right was expressly abolished by the Statute of 1340, which was subsequently confirmed in 1348, 1352, and 1377. (5) Tax on Moveables (1. e. personal property and income) 1 Sel. Charters, 129, Gervas, c. 1381. 2 Fyrdwite and Scutage differed widely in theory : the former repre- sented a punishment, the latter a privilege, TAXATION AND FINANCE. 1 89 was foreshadowed by the Assize of Arms 1181, which compelled freemen to provide themselves with weapons according to the value of their personal property K It was fir>t regularly imposed by the Saladin Tithe' 1 of 1188. In 1193 one fourth of property or income was taken for the ransom of Richard I 3 , while in 1203 John imposed one seventh on the baronial moveables. Four years later, he exacted one thirteenth from all property, lay or ecclesiastical. During the thirteenth, fourteenth and fifteenth centuries the tax on personal property usually took the form of a tenth Tenths and and a fifteenth, the former paid by the towns, the latter by the shires. In 1334 the produce of this tax was estimated at £39,000, and from that year the grant of a tenth and fifteenth meant the collection of £39,000 contributed in fixed proportions by the shires and boroughs. In the sixteenth century, this form of taxation gave way to the subsidy, but an instance of its employment occurs as late as 1623. (6) Subsidy, a tax on property at the rate of ±s. in the Subsidies, ' 1 . 1 n 1 f , r 1 first voted, pound for land, and 2s. 8d. for goods, first voted temp. temp. Richard II ; a subsidy, like a fifteenth, became a fixed sum of £70.000 (clerical subsidy £20,000). In 1398 a subsidy Firstinstance on wool and leather was granted to Richard II for life ; this granted for was the first instance of granting taxes for life ; the practice l e ' I3 subsequently became usual (see tunnage and poundage, p. 192). Subsidies were discontinued after 1663. (7) Poll Tax. Proposed 1222, but brought to no effect 4 . Poiitax, One of a groat a head was levied in 1377 : a graduated poll I377 ' tax ranging from £6 13^. \d. to one groat a head, was exacted in 1379 ; and in 1380 one ranging from 60 groats to one, led 1380. to the Peasants' Revolt of 1381. A poll tax was levied as late as 1641, ranging from £100 to 6d., for the payment of i°4x. the armies, and again in 1660. In 1692, and 1694, a poll tax varying from £10 to 4s. was collected for the purpose of 1 Sel. Charters, 154. ■ lb. 160. 3 lb. 252. Rog. Hov. iii. 210. 4 lb. 322, Ann. Waverl. p. 296. / 190 CHAPTER V. carrying on the French war. It was imposed for the last time in 1698 \ Sfo- veto?' 9) Hearth Tax, of 2s. on every hearth was imposed in 1662, (14 Car. II, c. 10); it was the revival of an old exaction, and the first instance of a permanent tax ; it was abolished in 1689 (1 Wm. & Mar. c. 10), owing to its extreme unpopularity. Windo ^ (9) Window Tax, first imposed in 1696, abolished in 1851, 1851'. ' in favour of the Inhabited House Duty. Land/Tax, ( I0 ) Land Tax imposed in 1689 at the rate of is. in the pound, which was raised to 4s. in 1692. It was re-imposed in 1702 by 1 Anne, st. 2, c. 1 and in 1798 (38 Geo. Ill, c. 5) was made perpetual at 4s. in the pound. The act provided for its redemption by compounding, but this was not done to any great extent. In the year 1892-3 the combined income from Inhabited House Duty and the Land Tax was £2,450,000. income Tax, (u) Income and Property Tax, of 10 per cent., was imposed by Pitt, 1799, on all incomes above £200; removed 1802; re-imposed in 1803 at the rate of 5 per cent on incomes above £150. It was again abolished in 1815, but revived by Sir R. Peel in 1842. The Income Tax is, at the present day, regulated by Act of Parliament every year ; in 1892-3 it produced £13,470,000. Tax on (12) Tax on Succession to personal property was imposed Succession, ,▼-»•• ^ 1 l %#, ^1 fi ^ 1796. by Pitt in 1796; to real property by Mr. Gladstone in 1853, in his first budget, indirect b. indirect Taxation. Taxation. , s ^, , . . * Customs. V 1 ) Customs, or duties on certain imports and exports, sprang from the royal prerogative of regulating all matters Prisage. of commerce ; the earliest were prisage, i.e. the king's right to one cask of wine out of every ten casks in the General ship's load, at 2 or. a cask ; customs on general merchandise, which were in fact a kind of licence to trade, and on wool, Maktotes. which was peculiarly liable to maleiotes, or evil tolls. By Magna Carta, all merchants were to trade without being 1 Anson, ii. 298. TAXATION AND FINANCE. 191 subject to any evil tolls, but only to the ancient and lawful customs. 1 In 127^, the Antigua custuma was settled by the Antiqua . . ' , , e , Custuma, prelates, magnates, and communities, at the request 01 the 1275. merchants/ at half a mark on the sack of wool, and on three hundred woolfells, and one mark on the last of leather ; in 1294, this rate was raised, by consent of the merchants, to 1294. three marks on the sack, and on three hundred woolfells, and ten marks on the last. By the Confirmatio Cartarum, 1297, the King's right of imposing arbitrary customs was restricted (saving the custom of wools, skins, and leather), and the maletote of 40J. on every sack of wool was released. In 1303, by the Carta Mercatoria, a custom of 40 pence Carta on the sack, and on 300 woolfells, and half a mark on the '1303. last, was obtained from the foreign merchants in return for a grant of certain privileges ; this custom of 1303, known Nova as the nova custuma, was refused by the representatives of the 1303. citizens and burghers. By the Carta Mercatorta the customs were fixed on a regular scale. Wine 2s. a cask, in addition to the prisage; exported cloth 2s. to is. a piece; other imports and exports $d. in the pound value 2 ; in 1309, the Articles of Grievance petitioned against these new customs, and the duties on wine and merchandise were suspended for a year; they were re-imposed 13 10, but again suspended by the Lords Ordainers 131 1-22; they were confirmed 1328, and by the Ordinance of the Staple, 1353, recognised as Ordinance a Statute in the following year, were fixed at 10s. on the ? 353 . e ape ' sack, and on three hundred woolfells, 20s. on the last, and 3d. in the pound. In 1340 (14 Ed. Ill, st. 2, c. 4) the King was forbidden to take more than the ancient custom except by leave of Parliament, but nevertheless Edward III taxed illegal ...... . . taxation of wool illegally on several occasions, usually with consent of wool, temp. the merchants, and Parliament petitioned against this way of raising money 1339, 1343, 1346; finally by Statutes of 1 Sel. Charters, 301, § 41. * Technically this proceeding was not a breach of the Confirmatio Cartarum because the bargain was made with foreigners, but it contravened the article of Magna Carta which provided for the freedom of trade. Stubbs, ii. 525. 193 CHAPTER V. 1362, and 137 1 (45 Ed. Ill, c. 4), it was declared that no grants on wool should be made without the consent of Parliament. From this time the power of Parliament in indirect taxation was recognised, and illegal impositions of duties became rare. Mary, by Proclamation, imposed a custom on cloth, 1557, and on French wines; and Elizabeth, Book of one on Sweet wines. James I made illegal impositions, and in 1608 issued a Book of Rates imposing new and heavy duties on various articles 1 . The House of Commons complained of the book (1610, 1614), and such impositions were declared illegal by the Petition of Rights, 1628, and by the Bill of Rights, 1689. The Customs were granted to Charles II for life, and were levied illegally by James II, on his accession, by Proclamation, before they had been granted by Parliament. Under William III and Mary, the Customs were granted for four years only; since then they have become permanent taxes, and have much increased in value, bringing in at the present day more than twenty millions annually 2 . Tunnage and ( 2 ) Tunnage and Poundage were in reality the old customs on wine and merchandise. In 1308, the English merchants compounded for the prisage by paying 2s. a tun on wine ; in 1347, 2S. a tun, and 6d. in the pound on merchandise, except Regularly the staple commodities of wool, leather, etc. From 1373, tunnage and poundage became a regular Parliamentary grant; it was regulated afresh at the beginning of each reign, and was granted to the King for life from Henry V to Charles I, in whose reign it was granted for a short time only, and who, in consequence, levied the tax on his own authority, e.g. 1626, 1628. The duties consisted at this time of 3 s. on the tun of wine, and ix. in the pound on other importations. In 1660, by 12 Car. II, c. 4, and 1685, by 1 Jac. II, c. 1, tunnage and poundage were granted to the King for life. Duties, 1634. (3) E xct ' se Duties, or duties on certain articles of consump- 1 Authorised Books of Rates were issued by Parliament in 1647 and 1660. 2 FromMarch 1893 to March 1894 the customs produced £20,164,11,1. TAXATION AND FINANCE. 193 tion, and home manufacture, as beer, cider, tea, groceries, silver and gilt wire, plate, paper, printed silks, etc., originated in 1643. After the Restoration they were granted to Charles II for life ; they subsequently increased very much in number, and though they have now been greatly reduced, they bring in about twenty-five millions and a half per annum. (4) The Post Office, first established under James I, and Post office developed under Charles II (a General Post Office being temp. sanctioned for London in 1660, by 12 Car. II, c. 35), has, since the introduction of the Penny Post in 1840, yielded a large annual profit to the Government; it now brings in a profit of about three millions a year, the gross income being over ten millions. (5) Stamp Duties, first imposed in 167 1, by 22 & 23 Car. II, c. 9 ; they were re-imposed in 1694, by 5 & 6 Wm. & Mar. c. 21. In 171 2, by 10 Anne, c. 19, a stamp duty was imposed on newspapers, and other ephemeral publications, with a view to discouraging writers against the Government ; it was not repealed until 1855. The Corn Laws. The Com Up to 1360, exportation of grain was by general custom First Act and consent forbidden ; in that year, by 34 Ed. Ill, c. 20, 136 °- exportation was forbidden except to places exempted by the royal licence. In 1394(17 Ric. II, c. 7), it was provided 1394- that export might take place except to places forbidden by the King, and the export was further regulated in 1425 1425. (4 Hen. VI, c. 5). In 1436-7 (15 Hen. VI, c. 2), export was 1436-7. prohibited except when the price was 6s. &d. a quarter and under. In 1463 (3 Ed. IV, c. 2), a similar limitation was 1463* imposed on importation. In 1534 (25 Hen. VIII, c. 2), ex- J 534- portation was forbidden, except with the royal licence, owing to the decline of agriculture in England; and in 1562 1562, (5 Eliz. c. 5), the price at which exportation was permitted was made 10s. a quarter. Duties of increasing amount on the exportation of corn were imposed 1570 (13 Eliz. c. 13); 1604 (1 Jac. I, c. 25); 1624 (21 Jac. I, c. 28) ; 1660,1663, o / 194 CHAPTER V. ,6 7 a and 1670 (22 Car. IT, c. 13). In 1670, too, import duties varying from 8s. a quarter, when the price was over 53^. 4^., 1689. to 2 is. gd., when under 44s. were imposed. In 1689, export duties were abolished, exportation being encouraged by bounties. Importation was regulated in 1732, and in 1773, Burke's Act, by Burkes Act (13 Geo. Ill, c. 43), the import duty was fixed at sums varying from the nominal sum of 6d. at 48s., to 24s. 3d. at 44s. and under; by the same Act export was forbidden when the price was over 44.9., a bounty of 51. being 1791,1804. given below 4 4 s. In 1791(31 Geo. Ill, c. 30), and 1804 (44 Geo. Ill, c. 109), the price at which nominal import duty was exacted was raised to 54^. and 66s., whilst export was 1814. forbidden in 1791, at 46 s., and 1804, at 54^. In 1814 (54 Geo. Ill, c. 69), duties on exportation were abolished ; in l8l 5- 18 15 (55 Geo. Ill, c. 26), importation was forbidden when 1822. corn was under Sos. a quarter ; reduced in 1822 (3 Geo. IV, c. 60), to 70J. with a duty of 12s., which was to be 5s. when the price reached Sos. In 1828, a sliding scale of duties was Duke of established under an Act of the Duke of Wellington (o Geo. IV, Wellington's v _ . . . ' _ . « , , Act, 1828. c. 60), fixing the duties at 30J. Sd. at 50^., 24s. 8d. at 62s., siidingScaie. decreasing to is. at 73J. Several attempts were now made Agitation for to obtain a repeal of the Corn Laws (which had already, e. g. of the Corn 1815, led to serious bread riots), viz. by Mr. Whitmore, 1833, and Mr. Hume, 1834; and, in 1838, was formed the Anti- Anti-Com Corn Law League, headed by Mr. Charles Villiers (who made Law League. . several motions in Parliament tor the repeal of the laws, 1 839-1 843), by Mr. Cobden, and Mr. Bright. In 1842, Sir PeePsSHding Robert Peel modified the sliding scale from 20s. at 51^., to 3 cae, 1 42. ^ ^ ^ (5 & 6 Vict. c. 14) ; but opposition still continued, and, in spite of all kinds of prognostications of evil, the Abolition of Corn Laws were abolished, on the motion of Sir Robert Law^V Peel > l8 4 6 (9 & IO Vict « C « 22 )> the Act t0 COme int ° operation in 1849. A nominal duty of is. a quarter was continued, but abolished in 1869. Assessment Assessment of Taxes. of Tiixcs l Anglo ( x ) Anglo-Saxon, by the Sheriff in the local courts; Saxon. usually compounded for by the Sheriff. TAXATION AND FINANCE. 195 (2) Norman, according to Domesday Survey \ All early Norman, taxes fell on land. Domesday Survey (from Domus Dei, the name of a chapel Domesday in the Cathedral at Winchester or Westminster where the urvey,I ° record was deposited),' 2 was taken in 1085, by the King's officers, on the sworn information of the sheriffs, barons, lords of manors, representatives and reeves of hundreds, and the priest, reeve, and six villeins from each township. Questions were put as to the holders of manors in the time of Edward the Confessor, and at the time of the survey ; the extent of manors in hides, the number of villeins and freemen, the extent of wood, pasture, mills, and fisheries ; the value at the time of the survey, and in Edward the Confessor's time. The result was an accurate, though not exhaustive, basis of rating, e.g. Northumberland and Durham were omitted, pro- bably on account of their being at the time occupied by the Scots, as well as most of Cumberland, Westmoreland, and Lancashire. The particulars thus collected were laid before the King at Winchester, Easter, 1086. Many towns, especially those in the north, show a great decrease of population since the reign of Edward the Confessor, owing to William's severity ; the great landholders prove to be all Normans, e.g. Earl of Mortain has 793 manors ; Earl of Richmond, 442 ; Odo of Bayeux, 439 ; William himself, 1422. When the survey was made, the whole country was vested in the King, the Church, and about 600 tenants- in-chief, of whom hardly one was a Saxon. (3) Feudal taxes were assessed on the kniMs fee, not Assessment v ° ' B y of Feudal on the hide, but Domesday remained the basis, as the number Taxes, of hides in a knight's fee was easily reckoned. Change of ownership, etc., occasionally demanded fresh assessment, which was made by itinerant officers of the Exchequer, e. g. the tallages of 1168, 1173. The contribu- tions of the boroughs were assessed by the sheriffs (the boroughs often obtaining charters to pay firma burgi, or rent, instead), (p. 261). Scutages were assessed on the report of the Scutage*. 1 Sel. Charters, 81, 86, 208. 2 Stowe's Annals, 118. O 2 196 CHAPTER V. Moveables. Carucage, Local Assessment. Local Taxation. Anglo- Saxon. Trinoda necessitas. County Rates. individual knight, and were often levied inaccurately, though in the case of land there could not be extensive cheating. Moveables and personal properly were assessed by a jury of sworn knights, or by four or six lawful men of the parish, e.g. Assize of Arms, 1 181; Saladtn lithe, 1 188. The Carucage of 1 198 was assessed by the stewards of the barons, bailiffs, four lawful men of the township, and two lawful knights of the hundred 1 . Assessments were often local, e.g. the Carucage of 1220 was assessed by two knights chosen in the county court, while the taxes of 1232 and 1237 were assessed by the reeve and four men from each township. In the collection of the fifteenth on moveables of 1225, the owner declared his liability on oath, the reeve and four men from each town- ship collected the money and then handed it over to four elected knights of the hundred 2 . Customs were also assessed by collectors of customs in various towns, arc. 1275. From 1295 taxes were granted by an assembly representative of all classes. In 1371, a grant of £50,000 was made by Parliament to be raised by an assessment of 22$. $d. on each parish, on the supposition that there were 40,000 parishes ; there were found to be in reality under 9,000, and the rate had to be raised to 116s. Local Taxation. Anglo-Saxon. The trinoda necessitas was incumbent on all holders of land ; it consisted of (1) burhbol, maintenance of fortifications ; (2) brigbol, repair of bridges ; (3) fyrd, duty of military service (p. 305). County Rates were originally levied, and assessed, in the shire courts for county purposes, e.g. police, highways, prisons, and, up to the reign of Charles I, to pay knights of the shire. They were defined by Statute, 1530 (22 Hen. VIII, c. 5), though frequently increased ; rates for different purposes were collected separately until 1739 (12 Geo. II, c. 29), when justices in quarter, or general, sessions were empowered to levy a general county rate, assessed on all townships and 1 Sel. Charters, 257. Reg. Hov. iv. 46. 8 Sel. Charters, 355. TAXATION AND FINANCE. 197 parishes, to be collected by overseers with the poor rate, and paid by them to the high constable of the hundred. The county rate has been latterly applied to various fresh purposes, e.g. the maintenance of Lunatic Asylums 1808 (48 Geo. Ill, c. 96). Borough Rates, levied by the town council for borough Borough purposes, such as lighting ; either paid out of the poor rate, or collected separately. Poor Rates, levied by the churchwardens and overseers of Poor Rates, each parish, must be formally allowed by two justices. The National Debt commenced in 1664, and was National rendered possible by the growth of banking during the Civil war; money had been borrowed freely by the Plantagenet kings from the Jews and Italian bankers, and in 1345 Edward III repudiated his debts. Similarly, Charles II repudiated the Debt, 1672, though interest was subsequently paid on the sum till 1683. In 1694, on the adviceof Montague, £1,200,000 was raised at 8 per cent., the subscribers being incorporated as the Bank 0/ England) this debt was funded, i.e. secured 2 r jf^ n f fthe in the public funds. In order to prevent the Crown becoming England, independent of Parliament by the aid of the Bank, it was provided that no money should be advanced to the Sovereign by the Bank of England without the consent of Parliament. At the end of William Ill's reign, the Debt amounted to more than £ 16,000,000 ; under Anne, it grew to £54,000,000 (the interest being reduced to six per cent., and subsequently, temp. George I, to four per cent.) ; during the Seven Years War, 1756 to 1763, to £139,000,000; in the American War to £249,000,000; and in the French War to £840,000,000. It is now (1893) £671,042,842 from which there are various deductions to be made for loans due to the Government, re- ducing the total Debt to about £665,800,000, the annual cost for interest and management being £25,200,000. This Unfunded includes £20,748,270 of unfunded debt on Treasury bills, Debt ' Exchequer bills and bonds (invented by Montague, 1697), redeemable by the Government at short dates, and £60,761,490 capital value of Annuities. 198 CHAPTER V. By the National Debt Act, 1870 (33 & 34 Vict. c. 71), the interest payable on the National Debt is to be paid annually out of the Consolidated Fund, i. e. the revenue. Waipoie's In 1 716, Sir R. Walpole proposed to get rid of the Debt Fund??7i6. by a Sinking Fund; the scheme was subsequently developed Pitt's Sink- by Pitt, 1786, and was merely to put by one million a year, 1786. ' ' which at compound interest would eventually swamp the Debt ; to get a spare million to put by, however, money had often to be borrowed, so the scheme failed ; it would have been simpler, and equally efficacious, to pay off a million a year, instead of laying it by. Some of the Debt has been paid off in recent years by means of the creation of Annuities. illegal Instances of Illegal and Arbitrary Exactions. Exactions. Compulsory 1 278 and 1 292. Knighthood was made compulsory 1278^x292? ' (under penalty of a fine), on all whose estate reached £20 a year. In 1292, the necessary value of the estate was raised to £40. Seizure of 1 2 94. Edward I seizes wool, and only releases it on pay- Wool, 1294. - . ment of a maletote. or Com and I2 97- Ed ward I exacts corn and meal from the counties, wool, 1297. an( j a g am se j zes wool. increase of 1303. Increase of customs, contrary to the spirit of i^3. oms ' Confirmatio Cartarum, 1297 (p. 18). Tallages, 1304, 1312, 1332. Tallage on demesne, contrary to the 1304,1312, S pj r jj. of the Confirmatio Cartarum, 1297. Aid, 1346. 1346. Aid to knight the Black Prince, contrary to the Statute of 1340. Loan, 1347. 1347- A loan on wool, and increase of the customs. LePie- !399- Richard II exacted sums of money, under the name saunce, 1399. of ^ p/ esaunce} f rom seventeen counties. Duty on i^57. Mary imposed a duty on French wines, and foreign Wine and ' »%»'**% cloth, 1557. cloth, by Proclamation (p. 1 70). Elizabeth imposed a duty on sweet wines. 1606. James I imposed a duty of 5 M53> M83> though by Magna Carta foreign merchants were allowed to come to England for the purposes of commerce without being subject to any evil tolls. Aliens were frequently subjected to repressive legislation. Legislation In 1380 (3 Ric. II, c. 3), they were forbidden to hold afiens! benefices; in 1414, to hold land, or engage in retail trade; in 1484, and 1523, to have foreign apprentices ; and in 1540, to take any shop or dwelling-place on lease. An alien may become a British subject by denization, e.g. by letters patent Denization. issued by virtue of the King's prerogative, or by naturalisation, Naturalisa- tion. 236 CHAPTER VII. Calvin's Case, 1 608. ThePostnati, Act of Settlement, 1 701. e.g. by Act of Parliament, or by a certificate from the Home Secretary, on taking the oath of allegiance (in accordance with the Naturalisation Act of 1870). In 1610(7 Jac. I, c. 2), the conditions of naturalisation embraced receiving the sacra- ment, and taking the oaths of supremacy and allegiance ; the necessity of taking the sacrament was abolished 1825. In 1608, it was decided, by Calvin's case 1 (App. B.), that those born after the union of England and Scotland under one King, (poslnati), were not aliens. By the Act of Settlement, 1 70 1, owing to the jealousy with which the foreign favourites of William III were regarded, it was enacted that no alien, even though naturalised or a denizen — unless born of English parents — shall be capable of sitting in Parliament, or holding any office or place of trust, or have any grant of land from the Crown. Although this enactment was sometimes relaxed by special Acts of Parliament in favour of particular indi- viduals, it was confirmed on several occasions, e.g. 1740, 1749. In 1774, it was provided that no Bill for naturalisa- tion should pass, unless it contained a clause deferring the immunities and indulgences of natural-born subjects until after seven years' residence. In 1793, in consequence of the alarm existing at the influx of large numbers of French refugees, Lord Grenville's Alien Act was passed, subjecting them to most strict regulations; it was subsequently re- enacted as occasion demanded until 1826. In 1827, and 1836, measures were adopted for the registration of aliens ; in Hutt'sAct, 1844, Mr. Hutt's Act increased the facilities for naturalisa- 1844. T ^* tion, and extended the consequent privileges. By the Hon tU A alisa " Naturalisation Act of 1870 (33 & 34 Vict. c. 14, §§ 2, 7) an 1870. alien may acquire, hold, and dispose of real and personal property, with the exception of British ships, like a nalural- born subject, and has all the rights and privileges of a British-born subject, except the franchise, and the power of holding municipal or parliamentary office. An alien, by ob- taining a certificate of naturalisation from the Secretary of Alien Act, 1793- His name is more correctly spelt Colvill. THE PEOPLE. 237 State, acquires all political as well as all civil rights (see Allegiance, p. 32). Outlaws Outlaws. were persons put beyond the pale of the law, by three public proclamations, for committing felony \ In early days, an outlaw might be killed by any one who met him, as he was regarded as a wild beast, and was said to have caput lupinum, a 'wolf's head/ By the Assize^ of Clarendon' 1 (Art. 14), men judged to be of evil repute by the testimony of lawful men are to leave the country, and, if they return without the King's pardon, to be outlaws. Temp. Edward III, however, it was provided that outlaws should not be put to death, except by the sheriff; any one killing an outlaw wilfully, except when endeavouring to apprehend him, being guilty of murder. At first outlawry was only applied to felony, but subsequently was used in civil cases where the defendant absconded; in a case of outlawry, forfeiture of goods and lands followed. Statutes regulating outlawry were passed 1331 (5 Ed. Ill, c. 12), 1363 (37 Ed. Ill, c. 2), 1406 (7 Hen. IV, c. 13), 1423 (2 Hen. VI, c. 11), 1532 (23 Hen. VIII, c. 14), and 1589 (31 Eliz. c. 3). Outlawry in civil cases was abolished by 42 and 43 Vict. c. 59, § 3, and its employment in criminal cases has been rendered unnecessary by the extradition treaties made with foreign countries under the Act of 1870. The JeWS The Jews. came into England as early as the seventh century, but did not appear in any numbers till after the Norman Conquest. From the first they were regarded with hatred by the people, while the Church forbad Christians to hold any but the most necessary communication with them. Like the forests, they were the special property of the Crown 3 , and could be Are the mulcted at the King's pleasure. In return they were allowed Chattels. 1 The sentence might be reversed, when the criminal was said to be inlawed, e.g. Elfgar was outlawed in 1055, on a charge of treason, and inlawed the same year. 2 Sel. Charters, 145. 3 Stubbs, ii. 529, a 3 8 CHAPTER VII. Oppression of the Jews, temp. Henry III. Banished from England, 1290. considerable privileges. They were exempt from the general taxation of the country, they could build synagogues and carry on their religious rites : they might be judged by their own tribunals, and they were allowed to carry on an extremely profitable trade as usurers. But though nominally under the King's protection, they were often the victims of popular outbreaks, during which the Jewry (i. e. the Jewish quarter) was sacked by the mob, and its inhabitants massacred \ Little heed was paid to the services which they rendered to medicine and physical science, and some towns succeeded in excluding Jews from their walls. They were heavily taxed by Henry II, and by the Assize of Arms' 1 were forbidden to keep coats of mail or hauberks. Richard I ordered the registration of all their debts, securities, lands, houses, rents, and possessions 3 , and John subjected them to great extortions. Provisions putting a check on their system of usury were inserted in the Articles of the Barons and in Magna Carta 41 . The Jews were severely oppressed by Henry III. In 12 18 they were compelled to wear a distinctive badge, and at different periods of the reign the King extorted from them sums varying from ten to twenty thousand marks 5 , while in 1255 he handed them over to Earl Richard as security for a heavy loan. Popular hatred was excited against them by the preaching of the friars, and they vainly asked for permission to leave England. They were very obnoxious to Edward I, and persecution went on unchecked. The Statute de Li Jeuerie (1275) forbad lending money at interest, and imposed an annual poll tax of 3d or 4d on all Jews. At last the King yielded to the popular clamour, and exercising 'considerable self-denial/ banished them from England in 1290, permitting them to take their moveable goods but confiscating their real property. We have abundant evidence of the presence of Jews in England from the fourteenth century onward, but it was not till 1655 that 1 E.g. in 1 1 89 there were anti- Jewish riots all over England. 2 Sel. Charters, 155, § 7. 3 lb 262. * lb. 293-298, 5 Stubbs, ii. 530. THE PEOPLE. 239 they were openly allowed to return. Even then they were Cromwell looked on with great jealousy, and in 1660 a petition was to return, presented to Charles II, asking that they might be driven out. But though they were allowed to remain, it was not till the present century that their civil disabilities were removed. In Gradual 1753 they were allowed to naturalise themselves, but this of their concession was withdrawn in the following year, and up to lsa . ltles " 1832 Jews had no political rights, and were debarred from holding civil, military, or corporate offices. However, in that jews obtain year the Reform Bill gave them the franchise, and Lord c hise, 1832. Denman's Act of 1839 enabled them to take the oath of allegiance. In 1845 they were admitted to corporate offices, and in 1846 the public exercise of their religion was legalised. Next year Baron Rothschild was elected as member for London, but was not allowed to take his seat, as he had conscientious objections to repeating certain words in the oath. In the next few years various measures of relief passed the Commons but were thrown out by the Lords, and it was not till 1858 that the favish Relief Act (21 & 22 Vict. ^Xf Act c. 49) empowered each House to exclude the words ' on the 1858. true faith of a Christian.' Finally, in 1866, the Parliamentary Oaths Act entirely omitted the phrase from the oath. Liberty of the Subject Liberty of . , . . r 1 ■« • ii tne Subject was a principle existing from the earliest times, e.g. the law of Ini: * If any one sell his own countryman, bond or free, Lawofini. though he be guilty, over the sea, let him pay for him according to his wer l f and by the laws of Ethelred 2 , and the Statutes Of Etheired. of William 1 3 , no one was to be sold out of the country. It was expressly declared by Magna Carta (clause 39), Magna 1 That no freeman shall be seized, or imprisoned, or dispossessed, outlawed, or exiled, or in any way injured, nor will we go against him, or send force against him, except by the lawful judgment of his equals, or the law of the land ;' (40) ' To no one will we sell, deny, or delay, right or justice V The great Charier of Liberties was subsequently confirmed 1 Sel. Charters, 61. 2 lb. 73. V. c. 2. 3 lb. 84, § 9. ' lb. 301. 24° CHAPTER VII. on many occasions during the reigns of Henry III, Edward I ? Edward II, and no less than fifteen times by Edward III. There were also four Writs, by which the Liberty of the subject was specially protected — writ.de odio (i) The Writ de odio el atid formerly sent to the Sheriff et atia. \ / ■ •/ directing him to inquire whether a prisoner, charged with murder, was committed upon reasonable suspicion, or only through malice {propter odium et atiam) ; in the latter case he was admitted to bail. By Magna Carta (36), it was provided that this writ, there called ' the writ of inquest of life or limb/ should be given gratis, and not denied l . The application of the writ was restricted by the Statute of Gloucester, 1278 (6 Ed. I), but it was again to be granted without denial by the Statute of Westminster II, 1285(13 Ed. I). It was abolished in 1354 (28 Ed. Ill), 'but,' says Blackstone, 'as the Statute, 42 Ed. Ill, repealed all the Statutes then in being, contrary to the Great Charter, Sir Edward Coke is of opinion that the writ de odio et atid was thereby revived/ Main-prize. (2) Writ of Main prize, sent to the Sheriff, directing him to take sureties for the prisoner. Dehomine (g) Writ de homine replegiando, a writ to t re-pledge/ or deliver a man from custody, on bail being given to the Sheriff for his subsequent appearance. Habeas (4) Writ of Habeas Corpus, of which there are several kinds, the most important being the habeas corpus ad subjiciendum, existing at common law ; a writ which might be demanded from the Court of King's Bench by any one imprisoned, and which directed the gaoler ' to produce the body of the prisoner, with the day and cause of his caption and detention, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall direct.' Although the writ of habeas corpus could not be denied (except the prisoner admitted just cause of detention; e.g. Writ refused in 1616, Sir Edward Coke denied the writ to a man im- 1616.° e ' prisoned for piracy, who admitted his guilt), there was 1 Sel. Charters, 301. THE PEOPLE. 241 frequently a delay in its execution, as the gaoler need not bring up the body until a third writ had been issued (pluries). PiuriesWrit. In 1627, Sir Thomas Darnel, Sir Walter Earl, Sir John Darnel's Corbet, Sir Edward Hampden, and Sir Thomas Hevening- ham were imprisoned by the Privy Council for refusing to contribute to a loan demanded by Charles I. They sued out their writs of habeas corpus and the return stated that they were detained per speciale mandaium regis. Darnel's Counsel did not question the Privy Council's right of commitment, but argued that a specific charge ought to be named in the warrant, so that the judges could decide whether the prisoners might be admitted to bail. For if the Council could imprison without cause shown, there was no guarantee that the accused would ever be brought up for trial. The Crown lawyers, on the other hand, maintained that reasons of state often made it inexpedient to specify the charge on which political prisoners were detained. The judges, while refusing to face the broad question, declined to admit the prisoners to bail l . This decision, being contrary to Magna Carta, and to a Statute of 1354 (28 Ed. Ill), roused both the indignation and fear of the country, and led to the Petition of Right, 1628, which asserted that in Petition of violation of Magna Carta, and 28 Ed. Ill (that 'no man should be imprisoned, or put to death, without being brought to answer by due process of law '), certain of the King's sub- jects had been detained by the King's special command alone, and prayed that no such imprisonment should for the future be allowed (App. A). Nevertheless, in 1629, Sir John Eliot, Mr Selden, and others were imprisoned per speciale mandaium regis. In 1 64 1 (16 Car. I, c. 10), it was provided that every one, committed by the Privy Council, might claim a writ of habeas corpus to show the cause of his detention. Under Charles II, illegal commitments again became frequent, (e.g. Lord Clarendon imprisoned several political 1 Gardiner, History of England, 1603-1642, vi. 213. R 242 CHAPTER VII. Jenkes' Case, 1676. Habeas Corpus Act 1679. Its defects. Remedied in 1689 and 1816. Bill of Rights, 1689. Suspension of the Habeas Corpus Act. prisoners in places where the writ did not run), and various Bills were proposed to remedy the evil, but failed to pass. In 1676, occurred Jenkes Case, in which Jenkes, who had been committed by the King in Council, only obtained a writ of habeas corpus after great delay and difficulties, e.g. the Lord Chancellor refused it in vacation. This led, three years later, to the famous Habeas Corpus Act, 1679 (31 Car. II, c. 2) (p. 333), passed, chiefly at the instance of Lord Shaftesbury, for 'the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas,' which defined the method of obtaining the writ. By it a Habeas Corpus may be claimed from the Chancellor, or any judge, in term or vacation, by any prisoner, except one committed for treason or felony ; the writ is to run in special jurisdictions, such as the Channel Islands, and Cinque Ports, and within twenty days at most after its issue, the body of the prisoner must be brought up. Persons committed for treason or felony must be presented for trial at the next assizes, unless the witnesses for the Crown could not be produced so soon : if such prisoners were not tried at the Second Sessions, they could claim their discharge. The Act forbade imprisonment beyond the seas. Important as the Statute was, it was subject to three defects : (1) it fixed no limit to the amount of bail : (2) it only applied to commitments on criminal charges : (3) it neglected to guard against a false return. The first point was remedied by the Bill of Rights (1689), and the other two by the Act of 56 George III, c. 100 (1816), which extended the writ to non- criminal charges, and empowered the judges to examine the truth of the return. Legislation on this subject was com- pleted by the Statute of 1862 (25 & 26 Vict. c. 20), which enacted that no English court should issue a writ of habeas corpus to any colony whose courts had power to issue it themselves. In times of rebellion and disturbance, it has sometimes been necessary to suspend the Habeas Corpus Act', e.g. in 1689 and 1696, during the Jacobite movements of 1 7 14, 1722, THE PEOPLE. 243 1745. during the period of the French Revolution 1794-1801, and for the last time in 181 7. The Irish AcrTTas~been frequently suspended. It must be remembered that there is never a general suspension of the writ. The Habeas Corpus Suspension Acts merely empower the executive to refuse the writ to persons charged with treasonable practices. Impressment. See pp. 317, 318. The liberty of the subject was also endangered by the use General of General Warrants, i. e. warrants issued by a Secretary of State for the arrest of unnamed individuals ■ without previous evidence of their guilt or knowledge of their persons 1 / Their legality was tested in the law courts in the cases of Wilkes v. Wood, Leach v. Money, and Wilkes v. Halifax, which were tried during the years 1763 to 1769. In 1763, Lord Halifax had issued a general warrant against the authors, printers and publishers of No. 45 of the North Briton, edited by Wilkes, and by its authority forty-nine persons were arrested. Actions were at once commenced by the editor and the printers against the messengers who had made the arrest, and the secretaries of state who had authorised it. Wilkes and the printers were successful : the law courts held that general warrants were illegal, and declared ° * illegal, 1763. awarded heavy damages to the plaintiffs. General Search Warrants, i. e. warrants empowering messengers to seize the books and papers of an individual, were pronounced illegal by Lord Camden in the case of Entick v. Carrington in 1765. The decisions of the law courts were confirmed by the House of Commons in 1766. See Libel, post. Liberty of Opinion. Liberty of The Censorship of the Press was an immediate consequence c ^™°"hj of the development of printing. At first vested in ecclesi- of the Press - astical hands, it passed, at the time of the Reformation, to the State, and was regulated by the Star Chamber. Under zvw/.Mary. 1 May, iii. 2. R 2 244 CHAPTER VII. Mary, the number of printers was limited, and the imprimatur of a Licenser was required by Proclamation, 1559. In 1585 stringent regulations were issued by the Star Chamber ; all works were to bear the imprimatur of the Archbishop of Canterbury, or the Bishop of London, or, in the case of law works, of the Chief Justices. No printing was to be done, except at Oxford, Cambridge, and London ; all presses were to be registered, and the number of master printers was limited. Under the first two Stuarts, the censorship continued to be most rigorously enforced, and the authors of Puritan pub- lications were severely punished. In 1637, Bast wick, Burton, and Prynne suffered imprisonment, fine, and mutilation, for HpTnm s se(H ti° us writings, the latter having already been fined, impris- tix, 1632. oned, and mutilated in 1634 for publishing his Histrtomastix. On the commencement of the Civil War, the Long Parliament endeavoured to carry on the policy of the Star Chamber, by suppressing the many political pamphlets which appeared, most of which espoused the cause of the Royalists. In 1644, Areopagitica, Milton's Areopagitica pleaded for freedom of opinion, but 1644. Committees were nevertheless appointed to regulate this censorship. In 1662 (13 and 14 Car. II, c. 33), the Licensing Licensing Act, (passed for three years and renewed at intervals until 1679), forbade any printing to be done, except at the Universities, and at London and York, appointed licensers, and limited the number of master printers to 20. In 1680, after the expiration of the Licensing Act, Chief Justice Scroggs declared that all unlicensed publications were illegal, and in 1685 the Licensing Act, was again passed for seven years. Subsequently it was renewed for two years Lapses in ' m 1692, but in 1695, the Commons refused to re-enact it, and from that time the press was, in theory, free from control. In reality it was still subject to great restrictions, owing to Sta^pD^y. the imposition of a stamp duty on newspapers (17 12), and to the severity of the law of libel. The stamp duty was abolished in 1855, and the last check on the multiplication of cheap newspapers was removed by the abolition of the paper duty in 1861. THE PEOPLE. 245 Law Of Libel. Law of Libel. In 1545, by 37 Hen. VIII, c. io, a slanderous libel was declared a felony, and ' seditious words' were severely punished by a Statute of 158 1 (23 Eliz. c. 2). As a rule, at that period cases of libel were dealt with by the Star Chamber, and the reigns of Elizabeth, and the first two Stuarts, exhibit many instances of its action against libellers; e.g. in 1583, John Coping and Elias Thacker were hanged for ' seditious libels/ i.e. writings in disparagement of the Book of Common Prayer; and in 1593, Penry was executed for a libel on the Queen, and as the suspected author of the libels on the bishops, written by Martin Marprelate ; in the same year, Barrow and Greenwood were executed for seditious libels ; in 1637, Burton, Bastwick, and Prynne were punished for the same offence. Previous to the Revolution, it appears to have been a punishable offence to publish anything reflecting on the Government or the ministers '. In 1688, the Seven Bishops, Seven having presented a petition to the King against the Declaration 1688. of Indulgence, were tried for seditious libel. They were acquitted by the jury, who claimed the right to return a general verdict of guilty or not guilty on the whole matter. In Tulchiris case (1704) it was held that it is a libel to express any ill opinion of the Government, though Chief Justice Scroggs, in Carr's case (1680), had declared that ' to print or publish any news whatsoever is illegal.' Libel prosecutions were frequent under William III and Anne, and during the reigns of George II and George III three important pro- positions were laid down. In Franklins case (1731), it was Develop ruled that falsehood is not essential to the guilt of a libel', in law. 1764, at the trial of the printers of the North Briton, Lord Mansfield held that the judge alone could decide on the criminality of a libel, the jury having merely to determine the fact of pub- lication : while in Almoris case (1769) the same judge laid down that a publisher is criminally liable for the acts of his servant, which was soon interpreted to mean that the pub- 1 Hallam, iii. 167. 24 6 CHAPTER VII. Fex's Libel Act, 1792. Lord Camp- bell's Act, 1843. Stockdale v. Hansard, 1839. Wason v. Walter, 1868. Petitioning. Act of 1661. lication of a libel by a servant was proof of his master's connivance. In 1792, Fox's Libel Act (32 George III, c. 60) asserted the right of the jury to return a general verdict on the whole matter, and thus overthrew the dangerous proposition enunciated by Lord Mansfield. But the fear of democratic outbreaks caused by the French Revolution induced the government to deal severely with expressions of popular opinion, and it was not till 1843 tnat Lord Campbells Act (6 & 7 Vic. c. 96) placed the law of libel on a more satis- factory fooling. The Act provided that the truth of a libel and its publication in the public interest should constitute a valid defence, and acquitted a publisher of all liability for the acts of his servants when done without his knowledge or contrary to his consent. Two important decisions remain to be noticed. In 1839 in Stockdale v. Hansard it was decided that the House of Commons could not authorise the publication of a libel : and in 1868 in Wason v. Walter it was held that a libel action could not be brought against a newspaper for a faithful report of a parliamentary debate, with fair comments on the proceedings, even though the character of an individual might be injuriously affected thereby. The Presentation of Petitions. The subject has always possessed the right to petition the Crown for the redress of grievances, but for some centuries it was mainly used for private and local matters, and it is only since the period of the Great Rebellion that many petitions have been presented ' asking for some change in the general law, or some legislation to meet new circumstances V In order to check the demonstrations which sometimes accompanied the presentment of these petitions, an Act of 1661 (13 Car. II, c. 5) forbad tumultuous petitioning, and provided that petitions for the alterations of the law, if signed by more than twenty persons, could not be presented unless approved by three justices of the peace, or Anson, i. 346. THE PEOPLE. 247 by the Grand Jury of the county: no petition might be presented by more than ten persons. In 1680 the pre- Proclamation sentation of petitions asking the Crown to summon a Parlia- ment was forbidden by royal Proclamation. The right of the subject to petition the Crown was expressly recognised by the Bill of Rights, but this did not prevent the House of Bin of Rights. Commons from imprisoning some of the Kentish Petitioners (p. 118) for breach of privilege (1701). Attempts to influence Parliament by means of petitions Modem became general at the end of the last century. Petitions were presented against the Roman Catholic Relief Bill (1780), for the abolition of slavery (1782), and for Parliamentary Reform (1782). Since that time, petitions have attained enormous proportions, and have been presented with every conceivable object, and on every occasion of popular excite- ment, culminating, perhaps, in the National Petition for the People's Charter in 1838. In 1839, the Petition— the six The People's points of which were, vote by ballot, annual parliaments, Charter ' l8 3 8 - manhood suffrage, equal electoral districts, the abolition of the property qualification, and the payment of members — was presented to the Commons with over a million and a half signatures attached. At the present day very great latitude is allowed to petitions, but the increase in their numbers no longer permits a debate on their contents at the time of their presentment. By standing orders of 1842 and 1853, tne member presenting an ordinary petition merely states iis object, its authors, and the number of signatures attached to it. It is then referred to a select committee. Political Agitation, Political and public meetings, began to be employed, as a regular Ag,tatIon - and organised means of influencing the government, about the reign of George III, although, as early as 1733, popular 1733. feeling had compelled Sir Robert Walpole to abandon his Excise Bill. During the reign of George III, political agita- tion was rife, and frequently took the form of riots, e.g. the Silk Weavers' riots 1765, which obtained a restraint upon siikWeavers' the importation of silk from abroad; and the Lord George l ° ts * 7 5 ' 248 CHAPTER VII. Gordon riots, 1780, in precincts of the House. Gordon Gordon riots. 1780, in which the rioters invaded the very Riots, 1780. Anti-siave j n 1787, the Anti-Slave Trade Association for the Eman- 1 rade Asso- ' * ' ciation, 1787. cipation of the Slaves. was formed, and was followed, during the period of the French Revolution, by the establishment of Democratic democratic associations, which called forth severe measures 1 Associations. ' on the part of the government, continuing in force more or less until the end of the reign. In 1 8 19, it was found neces- The'Six sarv to pass what are known as the ' Six Acts,' a series of repressive statutes, one of which forbade any meeting of more than fifty persons to be held, unless six days' notice was given by seven householders to a magistrate. The other five Acts accelerated the punishment of offenders in cases of misdemeanour, forbade persons to be instructed in military exercise, and the use of arms; provided for the effective punishment of seditious libel ; ordered the seizure of arms by justices of the peace in disturbed counties ; and subjected certain publications to the stamp duties. About 1828, the Catholic agitation of the Catholic Association was so violent as actually Association, 1828. to overawe the government, and was followed by extreme Rffbrm " f ° r a &i tat * on f° r Parliamentary Reform, and for the formation of various political unions. The Chartist agitation, too, con- tists, 1838-48. tinued from 1838 to 1848, when it culminated in the failure Anti-Corn of an attempt to overawe Parliament. In 1838, the Anfi- i8 a 3 8. eague ' Corn Law League was formed, and by 1846 had attained its objects 2 . Official Official Ranks. Eaidorman. Tne Ealdorman, often an under King, e.g. in Mercia, and Hwiccia, was the chief magistrate of the shire, appointed 1 E.g. the Treasonable Practices Act (1795) ; the Seditious Meetings Act (1795) ; and the Corresponding Societies Act (1799). a Sir T. Erskine May, in summing up the results of political agitation, remarks (Const. Hist., ii. 418), ' Not a measure has been forced upon Parliament, which the calm judgment of a later time has not since ap- proved ;. not an agitation has failed, which posterity has not condemned. The abolition of the Slave Trade and Slavery, Catholic Emancipation, Parliamentary Reform, and the Repeal of the Corn Laws were the fruits of successful agitation ; the Repeal of the Union, and Chartism, con- spicuous examples of failure.' THE PEOPLE. 249 as a national officer by the King and Witan (p. 93) ; there was often a tendency to make the office hereditary, especially in the case of the annexation of an under kingdom, although the idea of an Ealdorman was connected with jurisdiction, rather than with nobility of blood. The Ealdorman some- times ruled over two or more shires; he attended the Witenagemot, and it was his duty to lead the host of the shire in war, as well as to sit with the bishop and the sheriff in the shire moot (p. 68), where he received the third penny of the judicial profits. About the time of Ethelred, the Danish title of Jarl or Earl, (Norman comes), begins to supersede Jari or EarL that of Ealdorman. After the Norman Conquest, the title of Earl becomes a personal dignity, carrying with it no adminis- trative functions; and his share in judicial profits, 'the third penny/ was gradually commuted for a fixed sum \ The Sheriff, (sa'r gerefa, or reeve, probably connected sheriff in with the German graf, grau, grey ; or reafan, to plunder 2 ), times. ™ was the royal officer of the shire, (as the Ealdorman was the national officer), the nomination, except in the case of the Sheriff of London, 3 being almost always made by the King. The Sheriff was the King's steward and representative; it was his duty to attend the local courts in the royal interest, to receive taxes, and to administer the King's demesne. The Sheriffs after the Norman Conquest {vice-comes) be- After the came all-powerful in the local courts, owing to the withdrawal conquest, of the ealdorman and bishop, and, in some cases, managed to make their offices hereditary. Their judicial and financial powers were great ; in their judicial capacity, they held the Sheriffs Tourn (p. 7 1 ), and presided over the local courts ; in their financial capacity, they had to render the accounts to the Exchequer twice a year, and, as the Barons of the Exchequer were often Sheriffs as well, there were frequent opportunities for fraud, a Sheriff in such a case being enabled to audit his own accounts, as a Baron of the Exchequer. In their military 1 Selden, Titles of Honour, ch. v. § viii. p. 671. 2 For other derivations, see Stubbs, i. 82, note 7. 8 Sel. Charters, 108. 350 CHAPTER VII. capacity they commanded the militia and the lesser tenants in chief. Temp. Henry I, the Sheriffs had, in many cases, become so powerful, {e.g. Richard Basset, and Aubrey de Vere, held eleven counties in a joint sheriffdom *), that the King sought to lessen their power by appointing men of inferior position, instead of great barons and officials ; free- dom from their exactions was promised by the second Charter of Stephen 2 . During the anarchy of Stephen's reign the power of the Sheriff rapidly declined, but he was restored to his former position by the Treaty of Wallingford. Henry II, however, soon found that the Sheriff was becoming a danger to the central government : no longer an useful royal official, he had become a local magnate who too often disregarded the King's interests, mulcted the King's subjects, and transmitted his office from father to son. In 11 70, in consequence of numerous complaints of shrieval exactions, Henry removed all the Sheriffs, and ordered a commission of itinerant justices to inquire into the charges brought against them. Although She?ffsK l ^ s I n< l uest °f Sheriffs 3 resulted in the acquittal of the majority of the accused, hardly any were reinstated, and their posts were filled by officers of the Exchequer. Limitation of The Inquest was the first of a series of measures which his powers in • curbed the Sheriffs power, made him subordinate to the itinerant justice, and affected his position in financial, judicial and military matters, (a) Finance. (a) Financial. The disappearance of Danegeld after 1162, and the permission obtained by the wealthier towns to pay their contributions directly to the Exchequer, deprived the Sheriff of two great opportunities for extortion. Further limitations were placed on his power by the practice of entrusting the assessment and collection of local taxes to royal officials assisted by local representatives. Thus in 1 188 the collection of the Saladin Tithe* was put into the hands of officers 1 Stubbs, i. 392. a Sel. Charters, 121. 3 Sel. Charters 147. 4 lb. 160, c, 2. THE PEOPLE. %$! of the Exchequer assisted by a jury, and in the carucage of 1 198 l , the Sheriff was only to hand over to the Exchequer the sums already collected by local officials. (6) Judicial. (t>) justice. By the Assize of Clarendon" 1 (1166) the power of the Sheriff in criminal matters is subordinated to that of the justice, and by the Assize of Northampton* (1176) it is no 'onger the Sheriff but the justice who is to impose the oath of fealty. The Judicial ikr of 11 94 provides that no Sheiiff shall be a justice in his own county 4 , and orders the election of three knights and a clerk to hold the pleas of the Crown 8 , while in 1195 knights were assigned to administer the oath of peace 6 . Magna Carta 1 forbad any Sheriff to hold pleas of the Crown, and many of the borough charters contain clauses freeing the townsmen from the Sheriff's jurisdiction in civil and sometimes in criminal matters 8 . (c) Military. (c) Military The power of the Sheriff in military matters was lessened matters - by the introduction of Scutage, which deprived him of the levy of the lesser tenants in chief, and by the Assize of Arms (1181), which authorised the justices to supervise the arma- ment of the local militia 9 . When the assize was enlarged by the Statute of Winchester (1285) two constables were to be chosen in every hundred and franchise ' to make the view of arms 10 .' But in spite of these limitations the Sheriff retained Powers considerable remnants of his former powers. He summoned sheriff!* y the county court, held the view of frankpledge, enforced distraint of knighthood, collected the ferm of the shire and the tallage of unchartered towns, kept prisoners in custody till the arrival of the justices, led those lesser barons who did not pay scutage, and retained the command of the militia until superseded by the Tudor lord-lieutenant. 1 Sel. Charters, 257. a lb. 143, § 4. 3 lb. 152, § 6. 4 lb. 260, § 21. 5 lb. 260, § 20. fi lb. 264. ■ lb. 300, § 24. 8 See Charter of Henry I to London. Sel. Charters, 108, lines 10-15. 9 Sel. Charters, 155, § 9. 10 lb. 472, § vi. 2$1 CHAPTER VII. His influence over elections. His appoint- ment and Tenure of office. Itinerant Justices. Circuits of Judges. In the fourteenth century, the Sheriff once more became an official of great importance, owing to the control which he exercised over parliamentary elections. It was his duty to hold the election and return the members \ and as he was practically master of the situation, he could return either such persons as he chose, or could omit to make any return at all. To provide a remedy for the malpractices of the Sheriff, an Act of 1406 required that the names of the elected members should be written in an indenture, authenticated by the seals of the electors; in 14 10 Justices of Assize were empowered to scrutinise the returns, and by the Statute of 1445 a Sheriff making a false return could be fined £200. The Provisions of Oxford 2 limited the Sheriff's tenure of office to one year, and the Articuli Super Cartas (1300) allowed the counties to elect those Sheriffs whose office was not heritable. In 1316 (9 Ed. II), his election was declared to lie with the Chancellor, Treasurer, Barons of the Ex- chequer and the Justices. The limit of the shrievalty to one year was confirmed by 14 Ed. Ill, c. 7 (1340). At the present day the sheriff is appointed in the Privy Council. It is his duty to receive the judges on circuit, summon the juries, conduct the assizes, carry out the writs for the election of county members, and enforce those judgments of the High Court which affect persons or property within the county 3 . Itinerant Justices {in itinere) date from the reign of Henry I, who organised circuits of the Judges, and Barons of the Exchequer, for judicial, and more especially for financial, purposes, with the object of bringing the local courts into connection with the central administration *. Something of the same kind had been attempted in the judicial circuits of the Anglo-Saxon Kings, and in the courts held by William I at Westminster, Gloucester, and Winchester, but the system 1 By 16 & 17 Vic. c. 68, § 1, writs for cities and boroughs are no longer gent to the Sheriff but to the returning officer. 3 Sel. Charters, 391. 3 Anson, ii. 236. 4 ' The Norman curia met the Anglo-Saxon gemot in the visitations of the itinerant justices.' Stubbs, i. 392. THE PEOPLE. 2SS was not elaborated until the time of Henry II. During his reign circuits were frequently held and greater prominence was given to their judicial aspect. In 1 156, pleas were heard 1156. in certain counties, and in 1166, by the Assize of Clarendon Assize of v . . r . . . , , . Clarendon. (p. 325), a commission 01 itinerant justices was despatched to 1166. visit the counties and try criminals presented by the hundred and shire. No baronial franchise was to claim exemption from their visitation \ Two years later a financial circuit was made, and in 11 73 the kingdom was divided into six circuits for fiscal purposes. In 1176 the Assize of Northampton was carried out by six groups of three judges each, a circuit or 1 cluster of counties ' being assigned to each group. Subse- quent visitations were made under Richard I and John, and as the taxation of personal property compelled the Exchequer to entrust the assessment of the tax to local juries, the financial duties of the justices lost much of their importance. By Magna Carta (Art. 18), it was provided that the assizes Magna of Darrein Presentment, Afort d' ancestor, and Novel Disseisin (p. 87), should be held before itinerant justices and elected knights four times a year 2 ; by Article 13 of the second re- issue of the Charter, 121 7, this was reduced to once a year 8 . During the reign of Henry III, the itinera took place about every seven years, though they were frequently irregular. The system was remodelled by Edward I, and regular Reforms of .* - T , r » • i- 1 r , • , Edward I. circuits of judges of Assize were substituted for the irregular visitations of the justices itinerant. In 1285, by the Statute of Westminster II (13 Ed. I), two Judges of Assize were appointed to go on circuit three times a year, and in 1293 the country was divided into four circuits. Two judges were given to each division and were to be on duty throughout the year: finally in 1299 the Judges of Assize were empowered to act as Justices of Gaol Delivery, and were thus invested with all the judicial powers of their predecessors 4 . The judges Sat Under five Commissions : Commissions under which i. Assize, for the trial of disputes about real property ; the justices 1 Sel. Charters, 143, § I & § 11. a lb. 299. * lb. 345. « Stubbs, ii. 271. 254 CHAPTER VII. 2. Nisi Prius, (created by the Statute of Westminster II, 1285), so called from the necessity of questions of fact in civil cases being tried at Westminster, unless before (nisiprius) the day fixed for the trial, the judges come into the county in which the cause of action lies; 3. Oyer and Terminer, 1328 (2 Ed. Ill, c. 2), to hear and determine cases of treasons, felonies, and misdemeanors ; 4. Gaol Delivery, 1299 (27 Ed. I), i. e. to try all prisoners in gaol at the time of the judges arrival in the town ; 5. Of the Peace, * by which all justices of the peace, having no lawful impediment, are bound to be present at the assizes to attend the judges.' of°the r p at ° rs Conservators of the Peace. In 1 195, certain knights «9S. ' were appointed, before whom every one was to swear to keep the peace *, and on several occasions during the reign of Henry III, knights were assigned to secure the peace being kept 2 . Under Edward I, custodes pads, elected in the county court, appear, and were appointed to secure the enforcement of the Statute of Winchester, 1285. In 1327, Edward III enacted that Conservators of the Peace Become should be appointed in every county. In 1360 (34 Ed. Ill, c. 1) Peace, 1360. they received the title of fustices of the Peace and were authorised to exercise criminal jurisdiction. In the following century they gradually assumed the powers which had previously been vested in the shire court. A Statute of 1389 (12 Ric. II, c. 10) regulated their wages 3 , and directed that Quarter sessions should be held quarterly before two justices. By Sessions, __ -*.,: . . , . , 1389. 11 Hen. VIl, c. 3, justices were empowered to try without a jury all offences against unrepealed statutes, except charges of murder, felony, and treason, and in 1542 (33 Hen. VIII, Petty c. 10), were authorised to hold Petty Sessions. 1542. ' Under the Tudors and Stuarts, the burden of local govern- itve^ork? 1 ' m ent rested mainly on the shoulders of the justice of the peace. and^stuaftl 15 II was ms duty to carrv out tne re cusancy laws, collect benevolences and forced loans, setde the scale of wages and 1 Sel Charters, 264. a lb. 362, 371, 8 Justices of the Peace are now unpaid officials. THE PEOPLE. 355 prices, maintain bridges, roads and public buildings, grant licenses, appoint local officials and control local finance. In 1745 (18 Geo. II, c. 20) a property qualification of £100 a year was declared necessary for a justice, and in 1732 (5 Geo. II, c. 18) attorneys and solicitors in practice were declared incapable of holding the office. At the present day, Justices of the Peace for counties are appointed by the Lord Chancellor on the recommendation of the Lord Lieutenant : most of their administrative functions have been transferred to the County Councils by the Local Government Act of 1888, (51 & 52 Vic. c. 41). Lord Lieutenant, as the head of the County Militia, held Lord Lieu - an office analogous to that of the Ealdorman of Anglo-Saxon times. The office was created during the reign of Henry VIII 1 , and by 3 & 4 Ed. VI, c. 5, § 13, its holder superseded the Sheriff in the command of the military forces of the shire. The Act of 187 1 deprived him of the control of the Militia, but he is still the chief officer of the county and the representative of the Crown. State Officials. state The Justiciar, the highest official in the kingdom, and the justiciar, head of the administration, first appeared in English history temp. William I, as the regent of the kingdom in the Sovereigns absence, e.g. William Fitz-Osbern (p. 29); the importance of the office was much increased by Ranulf Flambard under William Rufus, and the Justiciar became, (next to the King), supreme in matters of justice and finance. When the Curia Regis split up into the Courts of Common Law (p. 58 sq.), temp. Henry III, the Justiciar's power began to decline, as he could not preside over all the three Courts. The office ceased to exist temp. Edward I, and the Justiciar's powers passed to The Lord High Chancellor, (so called from Cance/Ii, the The ' v ' Chancellor. 1 The Duke of Norfolk was made King's Lieutenant by royal com- mission in 1545 (Davenport, Lord Lieutenant, p. 4), but no mention of the officer is found in statute law till 3 & 4 Ed. VI, c. 5, § 13, where he is simply called Lieutenant. The title Lord Lieutenant is fust found in 4 & 5 Phil, and Mary, c. 3 § 5. 2$6 CHAPTER VII. screen behind which the secretaries sat to transact business *), who first appears in English history temp. Edward the Con- _ fessor. He was the head of the King's Secretaries and Chaplains, the ' Keeper of the King's Conscience/ and the Keeper of the Great Seat, in which capacity, although sub- ordinate to the Justiciar, he obtained great power, as no grant could be made by the King without the Chancellor affixing the Great Seat. After the establishment of the Chancellor's equitable jurisdiction, which dates from the 22nd year of Edward III, this power increased, and he became the head of the whole legal system. Up to Edward III, the office was always held by ecclesiastics, owing to their superior education, and qualifications for the post ; the first lay Chancellor was Robert Bourchier, 1340. From the time of Sir John Knyvett (1372), to Sir Thomas More, no lawyer was appointed; from 1592, there has only been one instance of an ecclesiastic holding the Lord Chancellorship, viz. Bishop Williams of Lincoln (162 1-1625). The Chancellor's office is declared identical with that of Lord Keeper by a Statute of !5 6 3 (5 Eliz. c. 18). The Lord Chancellor is a Privy Counsellor by virtue of his office, the Speaker of the House of Lords, and Visitor, in right of the King, of all Hospitals and Colleges of the King's foundation ; he is also Patron of the King's livings, and has the appointment of all justices and judges. The office cannot be held by a Roman Catholic. (11 Geo. IV, c. 7). Treasurer. Tli e Lord High Treasurer, Keeper of the royal Treasure, held an office created by William I; his chief duty was to receive the accounts of the Sheriffs in the Exchequer (p. 58). Up to 137 1, the office was held by ecclesi- astics, the first lay Treasurer being Sir Richard le Scrope. The last Lord High Treasurer of England was the Duke of Shrewsbury, appointed by Queen Anne in 17 14. In 17 15, the office was put in Commission, in order that the House of Commons might be represented in its administration, and 1 Sir Edward Coke's derivation is a cancellando, from cancelling the King's letters patent, when granted contrary to law. THE PEOPLE. 257 has since then been vested in a First Lord of the Treasury, three or four Junior Lords, and the Chancellor of the Exchequer. The Chancellor of the Exchequer, (office created Chancellor temp. Henry III), keeps the Exchequer seal. He is now Exchequer. the minister who controls the national revenue, his duties in the Exchequer being purely formal. By the Judicature Act of 1873, his judicial functions were taken away. From the nature of his duties, the Chancellor of the Exchequer is always a member of the Lower House, and his office gives its holder a seat in the Cabinet. The Lord Privy Seal, was appointed originally to keep Privy Seal, the Privy Seal of the King, so that no independent grants might be made without the knowledge of the Council. His duties were abolished in. 188 4, and though the office still exists it is purely honorary. Until the reign of Henry VIII, the office was usually held by a Churchman. There is also a Privy Signet, kept by the principal Secretary of State. Privy signet. Secretaries of State, became important officials during Secretaries the Tudor period, (and more especially under Elizabeth). Up to that time, the Secretary had existed only as a Clerk. In 1539, a second principal Secretary was appointed by Henry VIII; and up to 1707, there were, as a rule, two only. In that year, a third Secretary, (for Scotland), was appointed, but his office was abolished 1 746. In 1 768, a third Secretary for the Colonies was appointed; the office was abolished 1782, but revived 1794, the third Secretary being for War. In 1801 the Colonial business was transferred to this Secretary from the Home Office, and in 1854, the War and Colonial departments were separated, whilst in 1858, a Secretary for India was appointed. The Lord High Admiral, was an officer who commanded Lord High the fleet and was specially concerned with the administration of naval affairs. Although records of previous appointments are in existence, an uninterrupted series of Lord High Admirals can only be traced from the year 1404. The office was put in commission in 1636, and was administered by a parliamentary committee during the Commonwealth. At 258 CHAPTER VII. Court Officials. The Constable. the Restoration, it was conferred on James, Duke of York, but from 1690 to the present day, it has, with few exceptions, remained in commission. It is now administered by a First Lord and four naval Lords, a civil Lord, a financial and parliamentary secretary, and a permanent secretary 1 . Court Officials. The Lord High Constable, {comes stabuli), the staller of Anglo-Saxon times, was a military officer of the Court, and with the Marshal, held the Court of Chivalry (p. 64) ; he was at first an officer of the Exchequer. The powers of the Lord High Constable, which had been defined by Statutes of 1385 (8 Ric. II, c. 5), 1390 (13 Ric. II, cc. 2, 3), were much increased by Edward IV, who empowered him to ' hear, examine, and conclude,' all cases of high treason 'on simple inspection of fact.' Since 1514, when Henry VIII discharged the Duke of Buckingham from his office, the Lord High Constable has never been a permanent official, though one is appointed at each Coronation, rhe Marshal. The Earl Marshal, (Maresc/iat), first appears in England as a Court official temp. William I, when Roger de Montgomery held the office. The Earl Marshal's duties were similar to those of the Constable, with whom he presided in the Court of Chivalry. When the office of Constable fell into abeyance, the Earl Marshal continued to hold the Court as a Court of Honour in civil cases (p. 64). The Marshal's jurisdiction was defined, and checked, by the Ariiculi Super Cartas 1300, the Ordinances 131 1, and again in 1390 (13 Ric. II, cc. 2, 5). The Constable and Marshal were specially charged with the due regulation of the troops. The Earl Marshal at the present day is the Head of the College of Heralds. The Lord High Steward. The important functions which this officer exercised under the early Norman kings soon passed to the Justiciar. By the reign of Henry II, the office had become hereditary in the House of Leicester, and being inherited by Henry IV, was absorbed by the Crown. 1 Anson ii. 177. Lord High Steward. THE PEOPLE. 259 Since that time a Lord High Steward has only been created on special occasions pro hac vice, to preside at the trial of peers, or at Coronations. The Lord Chamberlain, the bower thegn of Anglo-Saxon i.ord times, was at first an officer possessing considerable financial and judicial powers and ■ responsible for the administration of the royal household 1 .' In 1539, the office of Lord Great Chamberlain was declared next in importance to the Lord Privy Seal. The Lord Chamberlain of the King's Household has at present the duty of licensing plays. The Lord High Almoner, the dispenser of the Sovereign's Lord High bounty. There is a patent giving the Almoner the goods of all felones de se, and all deodunds 2 . All the Court offices tended to become hereditary at early periods, and were nearly all Grand Serjeanlies (p. 210) 3 . 1 Anson, ii. 139. ' Rawlinson MSS. (Bodleian) A. 185, 303. 3 By an Act/ of 1539, 31 Hen. VIII, c. 10, sec. 4, relating to the pre- cedence of peers in Parliament, the order of the great officials is settled as follows : (1) the Lord Chancellor ; (2) the Lord Treasurer; (3) the Lord President of the Council ; (4) the Lord Privy Seal ; (5) the Great Chamberlain; (^6) the Constable; (7) the Marshal; (8) the Lord Admiral ; (9) the Lord Steward ; (10) the King's Chamberlain ; (1 1) the Chief Secretary. S 2 CHAPTER VIII. THE TOWNS. Pre-Norman. The Borough. Town reeve. Port reeve. Towns before the Norman Conquest. The borough^ (6urh, a fortified place), was originally a place more capable of defence than the township (p. 218). The origin of the burh cannot be traced back to a Roman source, nor can any distinct connection be established between the burns and the Roman municipia ; and the typical example of the fate of Roman towns in England may be said to be that of Anderida, razed to the ground, and of Chester, deserted for almost two centuries ; though the sites used by the Romans, being advantageously placed, and partially fortified, were often selected for new burhs. Some of the English boroughs grew out of a township, or a collection of town- ships, whilst others sprang up round the castles of the great nobles, or under the shelter of the monasteries, in the latter cases being the property of the Lord of the Castle, or the Abbot, in the former retaining an independent organisation. In the burh, or burgh, men met together for the purposes of trade as well as of defence, and as they were unable to pay their lord by labouring on his land, the custom grew up of demanding a money payment, or tallage (p. 188). These tallages were at first arbitrary, and imposed at the pleasure of the lord, but were subsequently commuted for a fixed rent, although arbitrary tallage continued to be occasionally demanded until Edward III (p. 198). The chief magistrate of the burgh was the tun gerefa, (or town reeve), or in mercantile towns, the port reeve {porta, the place where the markets were held). The burghs gradually obtained THE TOWNS. Sj6l exemption from the jurisdiction of the hundred, though they remained subject to that of the shire ' ; they had a burgh- mole, or ward-mo/e, of their own, held three times a year, for the transaction of their judicial and administrative business. Before the Norman Conquest, many towns had become the absolute property of the great lords, who in such cases appointed the reeve, (e.g. Chester belonged to the Earl of Mercia, and Exeter was the property of Queen Emma, ■ the gem of the Normans,' wife first of Ethelred, and then of Canute) ; the rest became the King's demesne, the reeve being a royal nominee. The larger towns, such as Can- terbury, as being a collection of townships, had an organisation resembling that of the hundred; as they were subject to the shire, the Sheriff collected all taxes and dues, and took note of all judicial proceedings. To avoid the Sheriff's exactions, a few towns even before the Norman Conquest had obtained the privilege of compounding for their taxes 2 , and had been freed from attendance at the hundred court. The five Danish boroughs of Nottingham, Lincoln, Leicester, Stamford, and Derby, had an organisation in common, and special privileges. About eighty towns are mentioned in Domesday, and forty- one are described as having customs and privileges of their own 3 . Towns after the Conquest. After the William I, seeing the importance of the towns, included Conquest - most of them in the royal demesne, and the practice arose of granting charters of incorporation, and privileges, such Charters of privileges being generally the right of independent juris- tion° rpora diction, and the right of paying firma burgi, or a fixed sum, Firma Burgi. as rent to the King, or lord, instead of submitting to the exactions of the Sheriffs ; these charters were granted to the 1 London obtained a shire jurisdiction of its own by a charter of Henry I, and the same privilege was eventually acquired by eighteen other towns, principally in the fifteenth century. See Maitland, Justice and Police, p. 71, note. 2 Huntingdon paidyfrwa burgi in the time of Edward the Confessor. 3 See Customs of Chester, Lincoln, and Oxford.— Se\. Charters, 87, 89, 90. 262 CHAPTER VIII. 1 fully qualified members of the township or hundred court of the town Y either by the King 2 , or, in the case of towns belonging to a noble, by the owner, e.g. Leicester obtained a charter from its Earl, and Beverley from Archbishop Thurstan, temp. Henry 1 3 . Most of the large towns appear to have been vested in the Crown, temp. Henry I, and by the time of Henry III, had obtained a distinct recognition of their privileges and immunities. The readiness with which the towns undertook municipal government, and the ease with which they were incorporated by charter, was due to the fact that they already possessed a more or less complete organisation in the gild system. Gilds. The Gilds (gildan, to contribute), are occasionally referred to a Roman origin, but more probably sprang from the sacrificial gilds, which were continued after the conversion to Christianity, with the substitution of Christian for heathen rites. The gilds of the Anglo-Saxons involved an oath of fidelity, and a sense of mutual responsibility ; they were of various kinds. Religious ( x ) The Gild for Religious Purposes, (the earliest of all), such as burying the dead, the holding of annual feasts, and the levying of contributions for the maintenance of services. Chief of these were the gilds of Exeter and Cambridge, the latter of which was also connected with the Frith Gilds. (2) Frith Gild, an association for the purposes of mutual protection and the preservation of the peace. These gilds undertook to capture and punish thieves ; the gild brethren were, by the laws of Ini, and Alfred 4 , to share in the wergild of a fellow-member. There is the code of a frith gild 1 Stubbs, i. 410. ■ ' The King was possessed of some towns antiquo jure Corona as part of the original inheritance of the Crown, of others by antient escheat; the former were called ancient Demesne.' — Madox, Firma Burgi, P- 5- 3 Sel. Charters, 109. From the towns belonging to lords unable from their position to grant Charters, sprang the market town. Stubbs, i.426. 4 Sel. Charters, 63. THE TOWNS. 263 in London with elaborate police arrangements, temp. Athel- stan. (3) Associations for social purposes, akin to our modern Social clubs. (4) The Merchant Gilds. There is no trace of a Merchant Merchant Gild in Anglo-Saxon times, and the first direct notice of such an association is found in a Burford charter of 1087 and a Canterbury document of 1093 l . The name occurs several times in the reign of Henry I, and becomes common under his grandson. The affairs of the gild were managed by an alderman and various subordinate officials, and members were admitted by paying a fee, producing sureties, and swearing to observe the gild statutes. It was the object of the merchant gild to regulate trade, and procure special privileges for its associates. Membership of such a body gave a man com- mercial status, conferred on him exclusive rights of buying and selling free from toll, enabled him to look to his brethren for aid if ill, poor, or in prison, to share in their profits and to combine with them to obtain better terms 2 . Such an institution was naturally popular, and the payment of a sum of money often induced the Crown to confirm the privileges claimed by the gild 3 . In some instances it would seem that the merchant gild soon became identified with the governing body of the town 4 , but this was not always the case 5 , and it was rare for the inhabitants to coincide with the members of the gild. Sometimes there were non-resident gildsmen who were not burgesses, or resident burgesses who were not gildsmen, and often inhabitants who were neither burgesses nor gildsmen 6 . 1 Gross, The Gild Merchant, i. 5. 2 Cunningham, English Industry and Commerce, i. 207. 3 See the charters granted by Henry II to Lincoln and Oxford. Sel. Charters, 166, 167. 4 E.g. Henry II's charter to Winchester is addressed to ' cives met Wintonienses de gilda nurcatorum? Sel. Charters, 165. See also charter of Richard I to same town. Sel. Charters, 265. 5 Dr. Gross goes so far as to say that though the merchant gild ' aided in evolving the later legal idea of technical municipal incorporation,' it 1 was never actually equivalent to the latter.' — The Gild Merchant, i. 105. 6 Gross, i. 68-70. 264 CHAPTER VIII. In the 14th century the craft gilds began to absorb the powers of the gild merchant ; its sphere of activity was decreased, and its powers were gradually transferred to these new associations. Its later history is obscure, and presents many varying features. In some towns it lent its name to the * aggregate or craft fraternities,' or became identified with the governing body, in others it sank into a society for social and religious purposes, or disappeared altogether \ At the present day, Preston is the only town in England in which a gild merchant still exists 2 . Craft Gilds. (5) The Craft Gilds were associations of craftsmen engaged in a particular trade in a particular town. A few are met with as early as the 12th century, but they do not come prominently into notice till the 13th or 14th. They have usually been regarded as trade combinations formed for the purpose of breaking down the monopoly enjoyed by the merchant gild, and their formation has been looked on as the English counterpart of the continental struggle between a privileged commercial aristocracy and an unprivileged artisan class. But recent authorities maintain that such a view is entirely false 8 . They assert that no evidence can be produced of the oppression of the artisans by the richer classes 4 , and show that the gild statutes contain few clauses which would protect the craftsmen from external tyranny 5 . Dr. Gross is of opinion that craftsmen were freely admitted to the merchant gild during the 12th, 13th, and 14th centuries, and Dr. Cunningham tells us that civil quarrels " were between burgess and alien, not between capital and labour V 1 Gross, The Gild Merchant, i. 158-163. 9 lb. i. 165. 8 ' It is probable, that not a single instance can be cited of a conflict between the gild merchant and the crafts as such.' — Gross, The Gild Mc rchant, i. 1 7 1 . See the whole of chap, vii, and also Cunningham, English Industry and Commerce, i. 310, 315. * There is no doubt that the weavers were subject to great disabilities, but Dr. Cunningham thinks that weaving as a regular craft was intro- duced and followed by foreigners, who did not pay the borough taxes, and were naturally regarded with great jealousy. Eng. Industry and Commerce, i. 179. 5 lb. i. 315. • lb. i. 315. THE TOWNS. 265 The real object of the craft gilds seems to have been the regulation of particular branches of trade. Their statutes aim at maintaining a high standard of excellence in the work, and inflict heavy penalties for fraud or * false work/ The internal organisation of these bodies resembled that of the merchant gild, and all who followed the craft were bound to obey the gild rules. Up to the reign of Edward I, the craft gilds were only allowed to exist on payment of a yearly sum to the king or a lord, but in succeeding reigns their development was fostered by the Crown, and in the 14th and 15th centuries they absorbed the powers of the older merchant gild. But by the 16th century their commercial utility was passing away, and their regulations served rather to hamper than to develop trade. They received a severe blow by a Statute of 1547, and gradually lost all influence over the various trades. Their place was taken by the merchant companies of the 17th century 1 . Towns from Henry II to 1265. Towns from From the time of Henry II the growth of the towns was I2 6s. ry rapid. Temp. Richard I, and John, many towns bought charters conferring privileges which varied in proportion to the sum paid. Magna Carta (art. 13) confirmed the antiquae liberlaies, and liberae consueiudines, of all cities and boroughs. The privileges granted were usually self-govern- ment 2 , self-assessment, permission to have a merchant gild, the free election of reeves 3 , exemption from a variety of tolls and imposts, from the interference of the Sheriff, and from the wager of battle (p. 76). One very important privilege, usually granted from the time of Henry II, was the recog- nition that residence as a burgess within the town for a year and a day conferred freedom on the villein who had sought 1 The London craft gilds obtained charters from Edward III, and became known as trading companies. They obtained exclusive power in the city councils, and escaped dissolution in the reign of Edward VI because their abolition would have involved the reconstitution of the city government. Stubbs, iii. 566 ; Cunningham, i. 465. a Charters of Dunwich, Heist on. — Sel. Charters, 311, 313. 3 Charters of Nottingham, Northampton and Lincoln. — Sel. Charters, 3°9> 310,312. l66 CHAPTER VIII. FirmaBurgi. refuge within its walls l . The firma burgi, the ferm or rent paid to the king, was portioned out amongst the householders, and occupiers of land in the borough ; those contributing towards it, held their tenements by burgage tenure (p. 211). A few towns such as London had their own jurisdiction, in- dependently of that of the shire-moot, and many old customs, such as compurgation (p. 74), were preserved in London, and other towns, long after they had been abolished in the Sheriff's Court. When the privilege of independence was gained, the right of electing magistrates became of importance. The charter of John to Lincoln 2 (1200), authorises the com- mune consilium civitatis to elect four lawful and discreet men to hold pleas of the Crown, and two lawful and discreet men to be reeves. The latter are to hold office during good behaviour and to be removable by the same body which chose them. The most important municipal privilege acquired by a town was the permission to make its own terms with the Exchequer, for it became necessary to refer to the citizens on the subject of the taxation of their towns. Local repre- sentatives were consulted by officers from the Exchequer, but it would often be found more expedient for such con- sultation to take place at some central point like London, and the fact that Simon de Montfort's summons of the burghers to Parliament, 1265 (p. 130), contained no in- structions as to who was to send them, or how they were to be elected, shows that the election of borough representatives was no new thing. History of Chief points in the History of London to Edward I. During the Roman occupation of Britain London became a flourishing sea-port, and at the commencement of the English invasion, its walls were strong enough to hold the Jutes at bay. But though no record remains of its siege or capture, it had fallen into the hands of the Middle Saxons by the beginning of the seventh century. The town suffered severely at the hands of the Danes : it was sacked by the 1 Seethe Customs of NewcastU-upon- Tyne, Sel. Charters, p. 1 1 2, line 1 5. 3 Sel. Charters, 312. THE TOWNS. 267 Vikings in 851, and brought to the verge of ruin : the treaty of Chippenham (878) left it in possession of Guthrum, but it was regained by Alfred in 886, its walls were repaired, and its government was entrusted to the Mercian ealdorman Ethelred. London was annexed to Wessex by Edward the Elder, and rapidly recovered its wealth. It successfully resisted Sweyn and Olaf in 994 and stood three sieges from Canute. When it at last fell into his power, its wealth maybe estimated from the fact that it paid £10,500 out of £72,000, raised from the whole kingdom l . At the time of the Norman Conquest, it had an organisa- tion resembling that of the shire, and was divided into wards, answering to hundreds, its chief officers being the bishop and port reeve. It obtained a charter from William 1 2 , and a much more extended one from Henry 1 3 . By this charter the citizens obtain the ferm of the county of Middlesex ; the right of electing their own sheriff and justices ; freedom from Danegeld (p. 187), murdrum, and wager of battle (p. 76) ; from toll, both in England, and at the ports, and • from the immediate jurisdiction of any tribunal except of their own appointment 4 ' ; they are to hold a husting court once a week, and to have their wardmoot, and dues 6 . At the death of Henry I, the Londoners claimed the right to elect the King, and gave active support to Stephen 6 . During the reign of Henry II, the number of sheriffs seems to have varied from four to two or one. In the following reign we meet with the first Mayor of London. John, who was acting First Mayor as regent in his brother's absence, having granted the citizens n 9 i. their Communa or corporation in 1191 7 . In 1 196, the excessive aids demanded from the Londoners, for the war against France, caused the riots under William 1 Green, Conquest of England, 465. 2 Sel. Charters, 83. 3 lb. 108. * lb. 107. 5 ' During the Norman period,' says Dr. Stubbs (Const. Hist., i. 407), 'London appears to have been a collection of small communities, manors, parishes, church-sokens, and guilds, held and governed in the usual way.' Sel. Charters, 114. Wm. Malm. 7 lb. 252. Bened. Abb. and Ric. Divis. p. 53. 2,68 CHAPTER VIII. Later His- tory of the towns. Municipal Fitz Osbert 1 . Under John, the citizens appeared on the side of the Barons ; they had aided in deposing Longchamp, 1 19 1 (p. 46), and now joined in wringing the Charter of Liberties from the King, 1215; their privileges were ex- pressly confirmed by Magna Carta (p. 328) 2 , whilst the Mayor of London, (who receives the title of Lord Mayor from the reign of Edward III at the latest), was one of the Barons appointed to carry out its provisions. In the same year John granted a charter to London, allowing the citizens to elect their mayor annually 4 . In the reign of Henry III very unfriendly relations existed between the Crown and the city. The king frequently imposed heavy tallages, and although in 1250 he made excuses for his exactions, he does not appear to have made any amends, and it was partly owing to the support given by London to the Barons, that they were able to pass the Provisions of Oxford so easily. After the death of Simon de Montfort, Henry marched on London to take vengeance for the help which it had given to the baronial party in 1264. The citizens were fined and imprisoned, the town pillaged, the mayoralty put in abeyance, and a warden was appointed as governor. It was not until 1270 that Henry was induced to restore the previous con- stitution. In 1285 London was so disorderly, that Edward 1 suspended the whole municipal government for twelve years, and nominated a warden to regulate its affairs and carry out various reforms. After it regained its freedom in 1297, its government was carried on by a mayor, assisted by two sheriffs, twenty-five aldermen presiding over the wards, and a body of common councillors. Later History of Towns. Municipal Boroughs. The later history of the towns presents so many varying features, that it is impossible to describe their development t in detail. But the general tendency was to vest the government in the hands of a mayor, assisted by a small body of aldermen, and a larger 1 Sel. Charters, 255. Rog. Hov. iv. 5. 8 Loftie, London (Historic Towns), p. 105. 8 lb. 298, § 13. 4 Sel. Chaiters, 314. THE TOWNS. 269 body of councillors. At first the mayor was chosen by the whole body of burgesses, but gradually his election passed into the hands of the aldermen and councillors. The latter formed themselves into a close Corporation 1 , ignored the rights of their fellow townsmen, and obtained Charters of incorporation. Thus at Leicester the powers of the gild Leicester, magistrates and the bailiff were transferred to the mayor. Twenty-four mayor's brethren and a court of common council were recognised by Edward IV, and in 1464 were empowered to elect the mayor. Twenty years later, the members of the council assumed the title of aldermen, and in 1489, together with the mayor and the brethren formed themselves into a close Corporation, excluded all other freemen from munici- pal elections, and obtained parliamentary recognition 2 . This restrictive tendency was carried still farther. The rights of the freemen disappeared, the Corporation came to be regarded as owner of the town property, it developed into a close Close Cor- oligarchy, and even the election of members of Parliament P ° r< was sometimes placed in its hands. The Crown was usually able to secure the return of its own candidates, but the independence exhibited by the Corporations Confiscation under the Stuarts induced Charles II to remodel their Charters, Charters. l683> In 1683, he caused an information to be brought against Writ of Quo the Corporation of London, quo warranto they had passed against a by-law imposing tolls on goods brought into their markets, 1683. ° n ' and had petitioned the king for the meeting of parliament, 1679. The Corporation was declared by the Court of King's Bench to have forfeited its Charter, and had to make the most humble submission to avoid its confiscation, though in 1690, 2 Wm. & Mar. c. 8 declared all the proceedings of no effect. Charles at once proceeded against other towns; in 1684, Judge Jeffreys, on the Northern circuit, ' made all 1 A corporation has been defined as a body which has the right of perpetual succession, can sue and be sued, purchase land, have a common seal, and make by-laws; Blackstone, Com. i. 475. 1 Stubbs, iii. 581-2. 37° CHAPTER VIII. the charters, like the walls of Jericho, fall down before him, and returned laden with surrenders, the spoils of towns.' The charters, thus surrendered by the towns, were replaced by others, 'framing the constitution of these municipalities in a more oligarchical model, and reserving to the Crown the first appointment of those who were to form the governing part of the Corporation V James II, in his desire to con- ciliate the country, restored many of the old charters, but matters were little mended for the burgesses generally, and throughout the 18th century the principle of close Corporations was maintained ; the burgesses in almost every instance had no voice in the election of their governing body, and the members of the Council almost invariably neglected their duties to the town for the advancement of their personal interests. All the borough patronage was in their hands, and was usually dispensed in the worst possible manner, whilst the Corporation often possessed trading privileges, which were highly injurious to the general trade of the town. Municipal This shameful state of things continued until the Municipal Corporations ° » Act, 1835. Corporations Act of 1835, which provided that the Town Council, all the members of which must be ratepayers in the borough, should consist of a Mayor, chosen annually by the Council, of Aldermen, elected by the Council- lors from their own body to hold office for six years and of Councillors, elected by the Burgesses, i. e. the resident ratepayers ; special trading privileges were taken away from the Corporations, the borough jurisdiction was regulated, and ample provisions made for the effectual administration of local self-government. The Corporation of London was specially exempted from the provisions of this Act, and remains the only unreformed municipal Corporation in England. But in recent years its authority has only extended over a small part of modern London. In 1855 an adminis- trative body called the Metropolitan Board of Works was 1 Hallam, ii. 455. THE TOWNS. 271 appointed to regulate the affairs of that part of London which lay outside the city, and by the Local Government Act of 1888 (51 & 52 Vic. c. 41, § 40) the 'powers, duties and liabilities' of this board were transferred to the London County Council. Parliamentary Boroughs. See Borough Franchise (P- ' 33)> Burgesses (p. 136); Bribery (p. 142); Reform (pp. 144-6). CHAPTER IX. THE CHURCH. thl st N^man History to the Norman Conquest. Conquest. The marriage of Ethelbert of Kent with Bertha, the Christian daughter of Charibert of Paris, arc. 575, afforded Pope Gregory an opportunity for the conversion of the south- east portion of England, and he accordingly despatched a mission with Augustine at its head x . Ethelbert was con- introduction verted in 597, and Kent soon adopted the new religion, the tianity into archiepiscopal see being established at Canterbury in 600. Northum ^e marria g e of Edwin of Northumbria with Ethelburga, biia, 627. daughter of Ethelbert, led to the conversion by Paulinus of the northern kingdom, over which the already converted Picts and Scots exercised some influence. In 603 a con- ference was held between Augustine and the British bishops, but the latter refused to acknowledge the supremacy of the Wessex con- Roman Church or accept certain changes in ritual. In 634, Birinus commenced the evangelisation of Wessex, and in spite of the antagonism of such champions of heathenism as Penda of Mercia, Christianity was firmly established as the religion of the country by the end of the 7th century, and that, too, in the Roman, as opposed to the Celtic form. Synod of The contest at the Synod of Whitby, 664, between the Whitby, 664. J J 1 Christianity had been introduced into Britain after the Roman Conquest, but too great insistance cannot be laid on the fact that ' the Church of England which was founded by Augustine. . . is the daughter of the Church of Rome... and has nothing whatever to do with the early British Church. The Roman planted, the Scot watered, but the Biiton. . . refused to do anything/ See Enc Britt : art. England, by E. A. Freeman and S. R. Gardiner. THE CHURCH. 2J$ Celtic and Roman priests, is of vast importance, and, had it been decided otherwise, might well have altered much in the country's history ; the nominal questions at issue — the shape of the tonsure, and the date of observing Easter — were decided in favour of Rome by Oswi of Northumbria, the result being, that, saved from the ecclesiastical disorganisation of the Irish church, England remained connected with Rome, and with Europe generally. In 668, Theodore of Tarsus, Archbishop Workof of Canterbury, commenced the organisation of a thoroughly national church by dividing the country into dioceses, formed on the lines of the old tribal divisions ; by increasing the number of bishops, and by bringing them together in a yearly synod under the presidency of the Archbishop of Canterbury. Tradition points to him as the creator of the parochial system, which placed each township or group of townships in the charge of a priest, who was responsible to the bishop of the diocese. This ecclesiastical organisation preceded, and formed a model for, the later secular organisa- tion. In Anglo-Saxon times, the close union of church and Early Union ° of Church state, caused by the fact that Christianity began with the and State, court and spread downwards, is very marked ; church councils, attended by the king and ealdormen, existed from a very early period, but, as the witenagemot, which was composed of almost the same members as the councils, grew into more importance, these councils gradually became exclusively ecclesiastical synods, whilst most of the witena- gemots legislated on ecclesiastical subjects. Clerics who violated the secular law were tried in the courts of the hundred and the shire, for there was no separate ecclesiasti- cal jurisdiction in criminal cases, but it seems probable that special church courts existed for the trial of spiritual offences \ The bishops sat with the ealdormen in the shire courts, ex- pounding the ' law of God ' and the law of man 2 , and as royal ministers 8 , and sometimes soldiers 4 , obtained a very 1 Stubbs, i. 233. 2 Sel. Charters, 73. Canute, § 18. 8 E.g. Dunstan, the trusted minister of Edred and Edgar. 4 E.g. Bishop Elstan of Sherborne, who defeated the Danes in 845. T 274 CHAPTER IX. Peter's Pence. Honourable position of the Anglo- Saxon Clergy. great influence in secular affairs. From this early connection between church and state, sprang that character of nationality, which has always so strongly marked the English Church. There appear but few cases of Roman legations before the Conquest, and the introduction of foreign Bishops, by Edward the Confessor, was by no means viewed with favour by the nation. Dunstan openly defied the Pope, and although it became the custom for Archbishops to fetch their pallium from Rome, and although the collection Rom-feoh or Peter's Pence (a contribution of id. from every hearth, abolished 1534, 25 Hen. VIII, c. 21) dates from the beginning of the tenth century, Roman influence in England was small before the Norman Conquest. The Clergy during the Anglo-Saxon period occupied, as the only educated class, a highly honourable position ; the oath of a priest was equal to those of a thegn, the wergild of an archbishop equalled that of an atheling; a bishop was on a par with an ealdorman l , a priest with a thegn ; whilst the laws of Edward give rank and power to any ' scholar who through learning throve so that he had holy orders V Relations of the Church to the State, from the Norman Conquest to the Reformation. Ecclesiastical The success of the Norman invasion was partly due to the policy of William 1. hearty co-operation of the pope, and it was natural that the Conqueror's ecclesiastical policy should bear witness to the reforming influence of Hildebrand. He accordingly attempted to assimilate the English to the Western church in matters of discipline and ritual. The uncanonical bishops were deposed ; Archbishop Stigand, who had received his pallium from the antipope Benedict, was removed from his see; church councils were revived, and with them ecclesiastical discipline and ritual; clerical marriages were forbidden, and the monasteries and chapters were reformed. But the most important step was the separation of the ecclesiastical and secular courts. By an undated charter of his reign 3 , William laid down that Sel. Charters, 65. 3 Sel. Charters, 85. lb. 65, § 7. THE CHURCH. 275 spiritual cases should no longer be held in the hundred court nor brought before a layman for settlement, but were to be tried by canon law in the courts of the bishop and arch- deacon. Contempt of ecclesiastical jurisdiction would be punished by the secular arm. But though the Conqueror was willing to bring the English Church into closer connexion with Rome, he had no intention of tolerating encroachments on his authority. He refused to do homage to Hildebrand ', and laid down three propositions which were to govern the relations between the Pope, the church, and himself. (i) That no Legate, or Papal Bull, should be received in England, and no Pope recognised, without the royal sanction. (2) That no enactment of an Ecclesiastical Council should become law until confirmed by the King. (3) That no tenant in capite should be excommunicated without the King's leave 2 . The result of this policy was to give the church a more definite position, and to organise her as a power apart from and possibly in rivalry with the state. Such a system could only be successful when those who were called upon to carry it out possessed the administrative ability and practical common sense of William and Lanfranc. Difficulties were sure to arise as soon as its working passed into less capable hands. If the Conqueror had been despotic, William Rufus proved The tyranny tyrannical. The revenues of vacant sees were appropriated by the king, and he deliberately neglected to make fresh appointments. The principles which regulated the taxation of lay fiefs were applied as closely as possible to church lands, and the king sometimes bestowed the estates of a bishopric on one of his favourites, and forced the next prelate to ratify the gift. The see of Canterbury remained vacant from 1089 to 1093, an ^ when Anselm, the newly 1 Fidelitatem facere, nolui nee volo ; quia nee ego promisi, nee antecessores meos antecessoribus tuis, id fecisse comperio. Stubbs, i. 285, note 1. 2 Sel. Charters, 82. Ecuimer. T 2 2?6 CHAPTER IX. appointed archbishop, protested against such abuses, he was forced into exile. Henry I. The first act of Henry I was to recall the archbishop and to issue a Charter of Liberties, in which he recounted the abuses of the preceding reign and promised to abolish them. The church was to be free from unjust exactions, its reve- nues should not be seized, nor its lands sold nor farmed for the profit of the Crown l . During his reign, the famous Imt ques- SU " Controversy about Investitures, which was raging over western tion. Europe, threatened to cause a serious breach between the king and the archbishop. The point at issue was whether the prelates should be invested by the pope or the sovereign. Anselm wished to check the growing secularisation of the church, and thought that better appointments would be made if the clergy were not subject to the immediate control of the Crown. Henry felt that church dignitaries were great landowners, and that if they refused to do homage and fealty he would have no claim on their military services, and possess no guarantee that their power would not be employed against the royal interests. The quarrel was settled by the Com- promise of Bee (1107), by which the Church was to invest with the ring and crozier, as emblems of spiritual jurisdiction, whilst the king was to receive the homage and fealty, in exchange for the temporalities 2 . Henry subsequently acknowledged the appellate power of the pope in ecclesiastical matters, though he would not permit a Legate to visit England without the royal license 8 . Stephen. Stephen, finding it necessary to conciliate the clergy, to whom he principally owed his election, granted them con- siderable liberties and concessions in his second charter 4 Arrest of the (App. A), but his subsequent imprudence in arresting Roger, «39- bishop of Salisbury, the Justiciar, and Alexander, bishop of Lincoln, June, n 39, and in sending Nigel, bishop of Ely, 1 Sel. Charters, 100. 2 lb. 97. Flor. Wig. 1107. 3 The first appeal to Rome was made by Wilfred of York, on his expulsion from his diocese in 678, but the practice was very rare until after the Norman Conquest. 4 Sel. Charters, 120. THE CHURCH. 277 the Treasurer, into exile, roused the hostility of the whole ecclesiastical body, and the action of the king was formally condemned in a church council held at Winchester in Aug. 1139; the result was civil war and anarchy, lasting until the Peace of Wallingford, n 53, which was due in great measure to the mediation of the clergy. In 1 1 63, the clergy, headed by Becket, who, after his St. Thomas appointment as Archbishop of Canterbury (1162), had become bury. a strong upholder of church privileges, made the first stand Hiso PP osi- against a tax proposed by the king, by refusing to pay the tion, 1*16** sheriff's aid 1 : the separation of the secular and ecclesiastical courts had moreover given facilities for the escape from justice of criminal clerks, and some modification of the existing laws was so earnestly needed that complaints about Need of e c - the degeneration of the spiritual courts had been formally Reform, made at Westminster in October, 11 63. Becket vehemently opposed Henry's plan of reform; the king, however, was firm, and, in 1164, the Constitutions of Clarendon (App. A) Constitutions . . . .11 of Clarendon settled the different questions at issue, in accordance with the 1164. customs of Henry I, ascertained by recognition. Criminous clerks were to appear before the king's court, and if handed over to the ecclesiastical authorities for trial were not to be protected by the church if pronounced guilty : the king's leave must be obtained before any archbishop or bishop might quit the realm, or before any appeal could be carried to Rome : the baronial status of archbishops and bishops was asserted, and their election was to take place by the king's leave, in his chapel 2 . The Constitutions were a bold attempt on the part of the Crown to define the relations between church and state, to destroy clerical immunities, and to assert the right of the state to control the authorities of the church. Thomas reluctantly accepted them, but immediately withdrew his assent and fled to the continent. The quarrel was ended by the murder of the archbishop in 11 70, and the feeling against Henry was so 1 See note, p. 185. 2 Sel. Chaiters, 137-140. 278 CHAPTER IX. strong that he was compelled to annul the Constitutions. The Crown never quite lost its control over the election of bishops, but appeals to Rome became frequent, and criminal clerks succeeded in evading the jurisdiction of the secular courts, clerical During the reign of Richard I, the clergy appear as the opposition _ ... , . , . to taxation, opponents of unconstitutional taxation (p. 185), and in 1198, Richard I. Hugh, bishop of Lincoln, and Herbert, bishop of Salisbury, refused to contribute to a military aid, demanded by the king, on the ground that by their tenure they were bound to military service within the realm only ■ ; the result was the resignation of Archbishop Hubert Walter, the Justiciar. In the same year, the clergy refused to pay the hidage of 5-r., but were soon brought to submission by an edict of the king, that any man who injured a clerk should not be obliged to satisfy him, but that if a clerk were the wrong-doer, he should at once be compelled to give compensation 2 . The John's quarrel of John with the Pope (Innocent III) arose about innoSntm. tne appointment of a successor to Archbishop Hubert Walter who had died 1205. The freedom of elections to bishoprics had hitherto been only nominal, but on the death of Hubert Walter, the monks at Canterbury elected their sub-prior Reginald ; the king nominated John de Grey, bishop of Norwich : appeal was made to the Pope, who set aside both elections and induced the proctors of the chapter to choose his friend Stephen Langton. The new archbishop received papal consecration in 1207. John refused to accept the nomination, and on the submission of the Canterbury monks to Innocent, expelled them. In the same year, John roused the hostility of the clergy by demanding one-thirteenth of the church revenues 3 ; this demand he subsequently relaxed, but in 1208, on the Pope putting England under an interdict 4 , John confiscated all the estates and goods of the clergy 5 . Hisdeposi- The Pope retaliated by excommunicating the King (1209), Pope, y i2i2. and by formally deposing him in 12 12 ; the execution of the 1 Sel. Charters, 255. Fog. Hov. iv. 40. 2 lb. 258. Fog. Hov. iv. 40. 3 lb. 273. Ann. Waverl. 1207. * lb. 273. Mat. Par. 226. 5 lb 274. Ann. Waverl. 260. THE CHURCH. 279 deposition he entrusted to Philip of France \ John, unsup- ported by his people, opened negotiations with Rome, and at length surrendered his kingdom to Innocent, receiving it Hissubmis- again to be held of the Pope on condition of swearing fealty 2 S1 °"' I2 to the Pope and paying an annual tribute of 1,000 marks (May 12 13). This disgraceful surrender bore important fruit, Its con - by sowing amongst the people of England the seeds of an enmity to Rome, which ultimately ripened into the Reforma- tion under Henry VIII. As an immediate consequence, the whole kingdom was consolidated against the king ; an attempt in 1 2 15 to win over the clergy by making restitution, and by the grant of freedom of election 3 , failed, and John found himself compelled to sign Magna Car/a, the first article of which expressly guarantees the liberties of the church *. Throughout all these reigns there exists a close bond of union between church and state in the employment of eccle- Employment r 1 1 • T r T» r of Eccle- siastics as ministers of the king, e.g. Lanfranc, Roger 01 siasticsas Salisbury, Becket (during the earlier portion of his career), and Hubert Walter. The alliance between king and pope begun by John's submission, continued throughout the reign of Henry III (who swore, when he did homage after his coronation, to pay the annual 1000 marks promised by his father), and until the action of Boniface VIII against Edward, 1296; the Pope, who, in 1223, had declared Henry of full age to govern 6 , exacted large sums of money, especially from the clergy ; Papal exac- and, if the king remonstrated, as he did in 1246, had only Henry lit' to use a threat of deposition to bring him to submission ; these exactions were frequent, e.g. 1229, 1240, 1244 (when Master Martin extorted large sums from the clergy), 1246, 1252, 1257; and though occasionally resisted by the people, e.g. 1 231, and remonstrated against by the national assem- blies, were almost always sanctioned by the king, to whom, in 1254, Innocent IV offered the crown of Sicily for his son Edmund. Henry had contracted enormous debts in support- 1 Sel. Charters, 276. Mat. Par. 232. 2 lb. 276. Mat. Par. 236. 8 lb. 288. * lb. 296. 6 lb. 322. Mat. Par. 318. a8o CHAPTER IX. ing Innocent IV against the mperor, and in 1257, obtained 52,000 marks from the clergy to pay the Pope for the crown of Sicily *. The King's relations with the clergy were always rather strained; in 1243, ne na ^ demanded a large sum on his return from France; in 1247, he attempted to restrict the ecclesiastical jurisdiction over laymen to matrimonial and testamentary cases, and in 1252 made an unsuccessful demand for a tenth of the clerical revenue for the next three years. During the barons' war, the Pope supported Henry, and in 1264 released him from his oath and declared the new con- stitution null and void. Edward I. With the accession of Edward I, the relations of church and state took a more settled shape under the defining hand of the King. An assertion of the independence of the church by Archbishop Peckham, caused the King to put forward, F }™} Statute in 1270, the famous Statute of Mortmain, or de religions* of Mortmain, , 1279. (7 Ed. I, c. 2), (the germ of which lies in the 43rd Article of the second re-issue of the Charter, 1217 3 , and in the 14th clause of the Provisions of Westminster 4 ,) arid which stands to ecclesiastical tenures in the same position that the statute Quia Emptores (p. 214) does to lay tenures. The object of the statute was to prevent persons giving their estates to re- ligious corporations, and receiving them back to be held of the church, and so depriving the overlord of the services due from the fiefs. For some years, there was a struggle between the King and Archbishop Peckham on the subject of the privileges writ cir- of the clergy, and in 1285 Edward issued the writ circumspecte agatis, 1285. agatis, which defined the jurisdiction of the spiritual courts, and confined it to questions of tithe, assaults on clergymen, and to offences, such as breaches of morality, which were properly cognizable there ; the writ however did not affect their jurisdiction over criminal clerks. In 1296, Boniface VIII Bull ciericis issued the famous bull Clericis laicos which forbade the clergy aicos, 129 . tQ ^y taxes to the state. The object of the Pope was to de- prive the secular authorities of the clerical contributions, and 1 Sel. Charters, 331. Mat. Par. p. 946. 3 lb. 459. 3 lb. 347- 4 lb. 404. THE CHURCH. 28l so check the wars which were largely carried on at the expense of the church. When therefore Edward called on the clergy to make a grant (Nov. 1296), Archbishop Winchelsey pleaded the papal prohibition. The king replied by placing the clergy Clergy out- beyond the pale of the law, and thus compelled them to give way. The exactions of the Papacy had rendered any dealings with Rome highly unpopular with the nation, and at the Parliament of Carlisle (1307) a document was drawn up pro- Statute of J \ *> * / rr Carlisle, 1307. testing against papal encroachments, and a statute was passed prohibiting the taxation of English monasteries by their foreign superiors. The weakness of Edward II enabled the Edward 11. popes to flatter or defy him as suited their purpose. Clement V induced him to acquiesce in the prosecution and suppression of the Templars (1308-13 11), and succeeded in reserving to himself many episcopal appointments ; on the election of Tohn XXII ( 1 3 1 6), these reservations were frequent. Edward's His quarrels , _. , 11.. 11. • . 1 1 with the submission to the Pope brought him into collision with the Bishops. national clergy, at the head of whom were Adam Orleton, bishop of Hereford, and the bishops of Bath and Lincoln; the king sent Stratford to the papal court at Avignon, with complaints of their conduct, but gained nothing ; he managed to alienate Stratford, by opposing his nomination to the see of Winchester, and the bishop subsequently drew up the articles of deposition (p. 13). During the reign of Edward III the nation regarded the The church condition of the church with growing discontent. The Nation prelates absorbed the chief offices of state, and neglected their Edward ill ecclesiastical for their secular duties, the lower clergy were Ji # d Rlc ard as a rule ignorant and careless, and the religious orders openly attempted to secure immunity from the national taxation. Bitter complaints were made of non-residence and pluralities, of the lack of discipline, of the oppression of the spiritual courts, of the general decline in the character of the clergy *, and of their opulence in the midst of almost 1 The Black Death had seriously lowered the clerical standard. Nearly half the clergy were swept away, and it was necessary to recruit their ranks from men of inferior education. 2^2 CHAPTER IX. universal distress. In 1340 the chancellorship was for the first time given to a layman — Sir Robert Bourchier (p. 256), and the Parliament of 137 1 complained so loudly of the appointment of clerical ministers, that William of Wykeham the chancellor, and the bishop of Exeter the treasurer, were obliged to resign their offices in favour of laymen. At the same time a proposal was made to seize the temporalities of the wealthy clergy, and apply them to the expenses of the war, the clerical tenth was exacted from small livings which had hitherto escaped taxation, a heavy tax was levied on all land which had fallen into mortmain since 1292, and in 1391 the Statute of Mortmain was re-enacted and enlarged 1 . Anti-papal Q n tn e other hand, the anti-papal feeling which had grown up in Edward I's reign, and had found expression in the Parliament of Carlisle, received a great impetus from the French war. Although the Pope was the avowed ally of France, he claimed an annual tribute of 1000 marks 2 as over- lord of England (p. 279), and received an annual sum of £200 as composition for Peter's pence. By the system of provisions and reservations he set aside the rights of English patrons, and appointed his own nominees to English benefices, even during the lifetime of the incumbent. It was intolerable that England's money should go to enrich England's foes, and that a French pope should exercise jurisdiction in the country in defiance of the national wishes, and in opposition to the common law. In the early part of his reign Edward acquiesced in the system, and his occasional protests lost their force through his constant petitions for the promotion of his own friends. But in 1351 the matter was taken up by Parliament, Statute of an d the Statute of Provisors (25 Ed. Ill, st. iv) was Provisors J T v . _ • ' ' 1351- passed at the petition of the Lords and Commons. Fresh penalties were added in 1365, and it was re-enacted in 1390. It maintained the rights of patrons and threatened all who procured promotion by papal provision with forfeiture and 1 See Fasciculi Zizaniorum (Shirley), Rolls Series, Introduction, xx. 2 The tribute had fallen into arrear since 1333. R. Lane Poole, Wycliffe and the Movements for Reform, 55. THE CHURCH. 283 banishment. The lords spiritual refused to assent to the Act, but it was always treated as a valid Statute. The king, however, connived at the evasion of its provisions, and the frequency with which it was re-enacted shows that it was seldom observed l . The Statute of Provisors was framed for the defence of patronage : two years later it was supplemented by an ordinance intended to prevent encroachments on English jurisdiction. This ordinance became a Statute in 1365, and in spite of the protests of the lords spiritual it was enlarged and confirmed in 1^03 as the Statute of Praemunire (16 Statutes of J - 7J •* x Praemunire Ric. II, c. 5). By its provisions the penalty of a praemunire 2 1365. 1393- was to fall on all persons who procured from Rome any bull or process which touched the person, realm or dignity of the Crown. Although it seems improbable that any immediate use was made of this Statute, it was greatly dreaded by the popes, and they made many efforts to obtain its repeal. The question of the papal tribute still remained to be Papal dealt with. When in 1366, Urban V demanded the pay- ment of the arrears of tribute due since 1333, Edward laid the request before Parliament, and it was unanimously refused. For a short time even the payment of Peter's pence was stopped. During the latter half of the 14th century, church abuses The teaching were vigorously attacked by John WyclirTe. The great re- former struck at the root of clerical privilege by denying the doctrines of transubstantiation and the necessity of a priestly mediator between God and man; he challenged the claims of the papacy by asserting that papal decrees were only 1 'It was rather for the king's interest to make use of the pope's pretension for the benefit of his own .candidates, than to surrender it in obedience to the national complaints.' R. Lane Poole, Wycliffe, 76 2 Praemunire, 'a barbarous word for praemoneri,' is an offence so called from the words praemtinire facias A. B. (cause A. B. to be forewarned) with which the writ commenced. The original offence was the introduction of a foreign power and the creation of an imperium in imperio by paying that obedience to papal process which constitutionally belonged to the sovereign alone. The penalties were outlawry, banish- ment and forfeiture. Wharton, Law Lexicon. 284 CHAPTER IX. binding when in conformity with the Word of God ; and he endeavoured to bring back the clergy to their proper sphere by laying down that the state might justly confiscate the temporal goods of the church if she failed in her duty. Much of his teaching was socialistic in tendency. Dominion, he said, belonged to God alone, and was dealt out to men in fiefs on condition of obedience to his commands. Mortal sin annulled the contract, and no sinner therefore had a right to priesthood or lordship. Although Wycliffe was careful to warn his readers that such theories must not be carried into practice, they obtained a great hold on men's minds through the preaching of his poor priests, and though we have no evidence to connect the reformer with the Peasants' Revolt of 1381, his enemies naturally regarded it as the direct outcome of his teaching. The Lollards His followers, under the name of Lollards *, became a very numerous and powerful body in the reign of Richard II, and were in considerable favour at court. An enactment to check the spread of their doctrines which passed the Lords in 1382, was repealed next year at the petition of the Commons, and in 1382 and again in 1395 they presented petitions to Parliament, remonstrating against abuses and laying stress on some of the most extreme points of Wycliffe's teaching. For some years, no general attempt was made to repress them, but with the accession of the House of Lancaster, the close ally of the church, came a turning point in their history. In 1401 De heretico was passed the celebrated Statute De Heretico Comburendo, Cbmburendo, ^\ch condemned the impenitent heretic to be burnt to death 2 . In 1404 and 1410 Lollard proposals were made in the Lower House for the confiscation of the church's property, but Lollardry rapidly declined, and no further action for its re- pression was found necessary after 14 17. The Church During the Wars of the Roses, the church still further Wars of the 1 The word has been variously derived from lollen, to sing, folia, tares, and foller, an idler. 2 Only two heretics are known to have suffered the extreme penalty, R. Lane Poole, Wycliffe 116. THE CHURCH. 285 lost its hold on the nation ; its dignitaries, such as Cardinal Beaufort, established a closer relation with Rome, and as a means of defending themselves against their enemies, formed a strict alliance with Edward IV, and his successors. In spite of the many attempts, which had been made at various times, to check the power of the Pope in England, and to reform ecclesiastical abuses, the state of the church at the time of the accession of Henry VIII, was such as to render its severance from Rome by the strong hand of the king peculiarly acceptable to the people \ Henry, who in 152 1 had received from Leo X the title of Defender of the Faith (a title still borne by the sovereign) Defender of in recognition of his services in having published a book against Luther, was urged on to rectify ecclesiastical abuses by the Parliament known as the Reformation Parliament, The Re- i-i -xt 1 1 j. formation which met in November, 1529, and sat for seven years. Parliament, Anxious for popularity and not averse to projects of reform, 1S29 * the king allowed the House of Commons to commence that attack on ecclesiastical abuses which, under his guidance, developed into an attack on the papal power. Reform began by the passing of three Acts to regulate probate and mortuary fees, and to check non-residence and £^-J rc h fees pluralities (21 Hen. VIII, cc. 5, 6, 13). At the end of 1530, i 53 a Henry told the astonished clergy that they had brought 7 he C1 «"«y themselves within reach of the Statute of Praemunire by penalties of recognising the legatine authority of Wolsey. Resistance was useless, and after they had paid over £118.000 (the Convocation of Canterbury £100,000, that of York £18,840), and acknowledged the king as the * one and supreme head of the church and clergy of England, they received a pardon by Statute (22 Hen. VIII, c. 15, and 23 Hen. VIII, c. 19). 1 ' Under the shadow of this majestic unity ' (i. e. of church and state), 'grew ignorance, errors, superstition, imperious authority and pretensions, excessive wealth, and scandalous corruption. . . . From the time of Wickliffe to the Reformation, heresies and schisms were rife; the authority of the Church, and the influence of her Clergy were gradu- ally impaired ; and, at length, she was overpowered by the ecclesiastical revolution of Henry VIII. With her supremacy perished the semblance of religious union in England.'— May, iii. 61. 286 CHAPTER IX. But the Commons seeing that they too might be involved in the same charge, refused to pass the bill unless they were included: whereupon the king 'of his special grace, pity, and liberality/ vouchsafed the laity a pardon in a separate Act (22 Hen. VIII, c. 16). 1532- Next year (1532) limitations were placed on benefit of clergy, and a very important Act was passed to restrain Annates. t ne payment of annates (23 Hen. VIII, c. 20). Annates, or the first year's income of bishoprics and benefices, had been first exacted in England by Alexander IV in 1256, and were demanded by almost all subsequent popes to the great oppression of the clergy. A clause of the Act provided that it should not be carried out until Henry J 533- had tried to compound with the Pope. In 1533 came Appeals. the famous Statute in restraint of appeals (24 Hen. VIII, c. 12), which, after asserting the national character and historic independence of the English church, forbade appeals to be carried to the papal courts. In ordinary cases they were to be heard in the Archb'shop's court, but if the case touched the Crown must be taken to the upper house of Convocation. Until the passing of this Act there had been no open breach with Rome, but before the next session events had happened which greatly influenced subsequent legislation. In May 1533 Cranmer decided in favour of the divorce, , 534- in March 1534 his verdict was overruled by the Pope. Before the Pope had come to a decision appeals had been further regulated 1 , and the Act for the Submission of the clergy (25 Hen. VIII, c. 19) provided that no canons should be issued without the royal license. Neither Peter s pence nor annates were henceforth to be paid (25 Hen. VIII, cc. 20, 21), and papal interference with episcopal appointments was forbidden ; vacant sees were to be filled by the Crown under the form of a conge d'e'lire' 1 (25 Hen. VIII, c. 20). 1 An appeal was now allowed from the archbishop's court to the king in Chancery. a Conge" (Tdire, i. e. leave to elect. On a see becoming vacant, the sovereign sends a writ to the dean and chapter of the diocese to proceed THE CHURCH. 287 When Parliament met for the autumn session of 1534, Clement's verdict had become known, and was followed by vigorous measures. The Act of Supremacy (26 Hen. VIII, Act of c. 1) declared Henry the ' only Supreme Head on earth upremacy * of the Church of England,' — the limiting words of 1531 being omitted — and the Act of 26 Hen. VIII, c. 3, bestowed all first fruits and tithes on the Crown. With the exception of Mary, subsequent sovereigns always exacted them until they were given up by Anne (p. 302). This rupture with Rome, which had so great an effect in increasing the national spirit of the English Church, was quickly followed by the suppression of the lesser Monas- Suppression teries whose annual income was £200 and under, Feb. 1536, MonaterlesJ by 27 Hen. VIII, c. 28; the ground of the suppression 1536 ' was the profligacy of the inmates of the Monasteries. The confiscated revenue was transferred to the Crown, and ad- ministered by the Court of Augmentation (p. 57). The im- mediate result of the suppression of the lesser Monasteries was the insurrection in Yorkshire, known as the Pilgrimage Pilgrimage of Grace, which was with difficulty suppressed, owing to the ? 53 6™ ce ' action of the ejected monks. Three years later, by 31 Hen. VIII, c. 13, the greater Monasteries were dissolved, Suppression bringing an enormous increase of wealth to the king, whilst Monasteries, the House of Lords suffered a considerable diminution in its I539 ' numbers by the exclusion of the mitred abbots (p. 124). But though so great changes had been made in the con- stitution of the church, very little had been done for the encouragement of Protestant doctrines, and in 1539 the hopes of the reforming party received a severe blow by the Statute of the Six Articles (31 Hen. VIII, c. 14). It upheld the The Six < c , . . , , , 7 . Articles, doctrine 01 transubstantiation, declared that communion in 1539. both kinds was unnecessary, that priests might not marry, to elect a bishop. The person to be elected is nominated by the crown, in letters missive introduced by Henry VIII, and must be chosen, under pain of the chapter incurring the penalties of Praemunire. Where there is no dean and chapter, as in the case of new bishoprics, such as Liverpool, the appointment is made at once by the crown by Letters Patent. Hook, Church Dictionary. 288 CHAPTER IX. Uniformity Acts, 1549- 1552. Elizabeth's policy. that vows of chastity ought to be observed, that private masses should be continued, and that auricular confession was ' expedient. ' Denial of these doctrines was punishable by forfeiture and death. With the accession of Edward VI, the Protestant party obtained the upper hand, and in 1549 was passed the first Act for the Uniformity of Service (2 and 3 Ed. VI, c. 1) which enjoined the use of ' the order of Divine worship ' contained in a book of common prayer which had been drawn up by a committee of bishops in the previous year; tithes were regulated by the same Parliament (c. 13), and celibacy of the clergy was abolished (c. 21). A second Act of Uniformity, containing an amended Prayer Book, was passed in 1552 (5 and 6 Ed. VI, c. 1). In spite of the disfavour into which the Church of Rome had fallen, the change of doctrine was by no means universally popular, and was protested against by risings in the east and the west of England. But the persecutions of Mary's reign materially aided the cause of the Reforma- tion, and on the accession of Elizabeth, the reformed religion was accepted without demur by the greater part of the nation. The reigns of Edward VI and Mary had shown that an extreme policy had little chance of success, and Elizabeth accordingly reverted to the lines laid down by her father. While maintaining the supremacy of the sovereign over the church, she tried to establish a compromise between the rival forms of religion. Such a policy won the politicians and indifferent, but lost the earnest men of both sides 1 . The Roman Catholic saw that it clashed wiih his allegiance to the pope the Protestant found that it was incompatible with the establishment of a Presbyterian system. Roman Catholicism and Presbyterianism were equally distasteful to the queen ; she would tolerate no rivals to her allegiance, and no system which opposed her own. Uniformity must be imposed by persecution. 1 Wakeman, The Church and the Puritans, 7. THE CHURCH. 289 In 1559 was passed the Act oj Supremacy (1 Eliz. c. 1), &*** which restored ' the ancient jurisdiction of the Crown over 1559- the state ecclesiastical and spiritual/ abolished the reactionary laws of Mary, and revived the anti-papal legislation of Henry VIII. It swept away all foreign authority, and though it did not restore the title of 'supreme head,' it vested in the Crown for ever the supreme power over the national church \ All ecclesiastical and lay officials were to take an oath acknowledging the Queen as supreme governor in church and state* and all persons who upheld the authority of any foreign potentate were condemned to forfeiture for the first offence, incurred the penalties of praemunire for the second, and suffered death for the third. In 1559, too, was passed a new Act of Uniformity Third Act of (1 Eliz. c. 2), confirming the revised edition of the Prayer i 559 . Book issued under Edward VI (1552), imposing heavy penalties on those who refused to make use of the authorized service book, and making attendance at church compulsory. First-fruits and tenths were again given to the Sovereign by an Act of the same session (p. 287). In 1563, the Thirty-nine Articles of the Church of England were passed The Thirty- by Convocation 2 , and were confirmed by Parliament J5S3. in 1571. In 1562, a severe Act was passed against the Catholics, Legislation who were again made the subjects of repressive legislation San 1571, 1580, 1585, 1593; whilst the Court of High Com- ^^ mission (p. 55) on several occasions carried its action against J^; 1585, them to bitter persecution. The sympathy of the Catholics with Elizabeth's rival, the Queen of Scots, and the various plots set on foot by the Jesuits, led, in 1584, to the formation of the ' Association for the Protection of the Queen,' which * Association was authorised by Act of Parliament (27 Eliz. c. 1); and tectionof % the formal deposition of Elizabeth by a Bull of Pius V (1570}, ^, and the threatenings of the Spanish Armada had no other effect than to increase the rigorous treatment of the Catholics. 1 Prothero, Const. Documents, Introduction, p. xxxi. 8 The original articles, forty-two in number, had been issued in 1553. 290 CHAPTER IX. Puritan Persecution. Archbishop Parker's ' Advertise- ments,' 1565. Millenary Petition, 1603. Hampton Court Con- ference, 1604. Attacks on Episcopacy. Establish- ment of Presby- The Nonconformist or Puritan party, though faring better than the Catholics, were also subject to constant persecution. In 1567, after the issue of the 'Advertisements' of Arch- bishop Parker, which ' prescribed the minimum of ritual which would be tolerated V proceedings against the Puritans began, and, in spite of the efforts of such Puritan members of Parliament as Mr. Strickland (p. 107), continued until the end of the reign, with the result that there sprang up a Puritan opposition to the state church, and to the arbitrary government of the Crown, which subsequently cost Charles I his head. Chief dates in Church History from James I. In 1604, in consequence of the presentation to the King of the Millenary Petition 2 , in the preceding year, praying for reformation in ecclesiastical matters, the Hampton Court Conference was held, between the Church party and the leaders of the Puritans ; in this it was decided to revise the. various versions of the Bible (the authorised version of 161 1 being the result), but no important concession was made to the 'dissentients'; the Prayer Book was revised, and the authorised version of the Scriptures agreed on. The hatred of episcopacy, which the folly of Charles I, and the harshness of Laud and the High Commission Court (p. 55) had engendered, led to the introduction of a measure for the extinction of episcopacy called the Root and Branch Bill (1641). It met with much opposition and was finally dropped, but in 1642 the Bishops Exclusion Act deprived the prelates of their seats in the House of Lords. In 1645 the House of Commons adopted Presbyterianism in its parochial form, and one of the clauses of the Treaty of Uxbridge (1645) demanded the total abolition of episcopacy and the substitution of Presbyterianism. 1 Perry, Church Hist. H. 290. 9 So called as being supposed to bear the signatures of 1000 Puritan Clergy. In reality it does not appear to have borne any signatures at all. Gardiner, Hist, of England, i. 148, note. THE CHURCH. $<)1 In 1646 the Parliament issued an ordinance providing for the general establishment of the Presbyterian system throughout England. In December, r66i, was passed the Corporation Act Corporation (13 Car. II, st. 2, c. 1), which compelled all holders of municipal office to take 'the Sacrament of the Lord's Supper according to the rites of the Church of England/ and which, says Mr. 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 1 / This Act, as well as the Test Act (p. 292), remained in force (in spite of various motions against them, e.g. by Mr. Beaufoy 1787, 1789, Mr. Fox 1790) until 1828, when Lord John Russell carried a motion for their repeal. It had, however, been customary since 1727 to pass annual Acts of Indemnity, releasing Dissenters from the penalties incurred by their having accepted office without taking the necessary oaths. In 1662, the Act of Uniformity (14 Car. II, c. 4) enjoined Fourth Actof episcopal ordination, and the use of the established form of 1662. the Prayer Book, compelled ministers and schoolmasters to take the oath of non-resistance, and placed certain severe restrictions upon tie Nonconformists. In 1664, the Conventicle Act (16 Car. II, c. 4) forbade, Conventicle under heavy penalties, the assembly of Conventicles 2 , as contrary to the Act of Uniformity ; its duration was limited to three years, but on its expiration in 1670 it was renewed (22 Car. II, c. 1). In 1665, by the Five Mile Act (17 Car. Five Mile II, c. 2), clergy who refused to take the oath of non-resistance imposed by the Act on all who had not subscribed the Act of Uniformity, were forbidden to come within five miles of a corporate town; no nonconformist might teach in any school under heavy penalties. These persecuting Statutes were abrogated for a time by the Declaration of Indulgence, Declaration gence, 167a. 1 Const. Hist. ii. 330. 2 A conventicle was defined by the Act as ' any meeting for religious worship at which five persons were present besides the household.' U 2 292 CHAPTER IX. Test Act, 1673. Catholics debarred from Par- liament, 1678. Declaration of Indul- gence, 1687. Nonjurors. Toleration Act, 1689. Schism Act, 1713- 1672, but the Declaration itself had to be withdrawn in the following year. In 1673, the Test Act (25 Car. II, c. 2) compelled all holders of office to take the Sacrament in accordance with the ceremony of the English Church, to take the oath of supremacy, and to make a declaration against transubstan- tiation; whilst in 1678, after the false evidence of the informer, Titus Oates, the Parliamentary Test Act declared Catholics incapable of sitting in either House of Parliament. In April, 1687, James II i-sued his Declaration of Indul- gence which suspended (p. 172) all penal statutes against Catholics and Nonconformists, and led to the case of the Seven Bishops (App. B). After the accession of William and Mary, new oaths of supremacy and allegiance were instituted (1 Wm. & Mar. c. 8), to be taken by all office-holders before Aug. 1689. About four hundred clergymen, including Archbishop San- croft and six bishops, refused to take them and were ejected from their preferments in consequence : these recusants were known as ' Nonjurors/ In May, 1689, the Toleration Act (1 Wm. & Mar. c. 18), the reward of the aid given to William by the Dissenters, extended a certain amount of toleration to Nonconformists, though not to Roman Catholics, nor to the Unitarians ; it did not, however, relax the provisions of the Test and Corporation Acts, which were not repealed until 1828. In 171 1, too, the Occasional Conformity Act (10 Anne, c. 2), deprived of office any civil or military officer who should attend a dissenting meeting during his term of office after having complied with the Test Act in taking the Sacrament. In 1 7 13, the Schism Act (13 Anne, c. 7), limiting the profession of schoolmaster to members of the Church of England licensed by the bishop, increased the hardships of Dissenters and Catholics, but was repealed in 1718, and from the time of George II it became customary to pass an annual Act of Indemnity for those who held office THE CHURCH. 293 whilst disqualified by the Corporation and Test Acts. Various attempts were made to remove the disabilities of the Roman Catholics in 1778, 1801, 1805, and 1810, but were frustrated mainly through the bigotry of George III, and though small measures of relief were passed in 18 13 and 181 7, it was not till 1829 that the full measure of enfranchisement came. By the Catholic Emancipation Act (10 Geo. IV, c. 7), Roman Catholic Catholics, on taking a new oath instead of the oath of tion Act, supremacy, were admitted 'to both Houses of Parliament, * 2g ' to all corporate offices, to all judicial offices, except in the ecclesiastical courts ; and to all civil and political offices, except those of Regent, Lord Chancellor in England and Ireland, and Lord Lieutenant of Ireland V Ecclesiastical Courts. Ecdesms- Up to the reign of William I, the temporal and spiritual courts were united ; the bishop and ealdorman sat side by side in the shire courts (p. 68), and took cognizance of ecclesiastical as well as of civil causes. William I, however, as some sort of return for the countenance of the Pope in his acquisition of England, issued an undated charter, by which he separated the spiritual and temporal courts 2 , ordaining at the same time that any one thrice refusing to obey the jurisdiction of the bishop's court should be amenable to the ' strength and justice of the king or sheriff.' Stephen, who had been warmly supported by the clergy, declared in his second Charter of Liberties, that 'justice and power over ecclesiastical persons and all the clergy, and their goods, and the distribution of ec- clesiastical property was in the hands of the bishops 3 / By the Constitutions of Clarendon, 11 64 (App. A, and p. 277), the abuses which had crept into the ecclesiastical courts were regulated, and the immunity of guilty clerics from secular punishment was provided against. After the murder of Becket, Henry II promised to annul the Constitutions, but at a council held at Westminster Abbey in 11 76, it was conceded, that the Crown might impeach the clergy 1 May, iii. 169. 2 Sel. Charters, 85. 3 lb. 120. 294 CHAPTER IX. forest laws service was Their juris- diction over (i) clergy, (2) laymen. The various ecclesiastical courts. in the secular courts for offences against the and for 'fees to which the duty of lay attached V In 1275 (3 Ed. I, § 2) the Statute of Westminster I ordained that clergy accused of felony were to be tried in the king's courts, before being handed over to the ordinary, whilst the authority of the spiritual courts was denned and restrained by the Writ Circumspecte Agatis, 1285 (13 Ed. I). Nevertheless their abuses continued, and were frequently the subject of complaint. The church courts claimed exclusive jurisdiction over the clergy not only for spiritual offences, but even for breaches of the common law. However grave the crime which a clerk had committed, he was only liable to degradation for his first offence. Such misplaced leniency was practically a license to break the law, ' and the first effect of amenability to merely spiritual penalties, seems to have been an increase of violent crime on the part of ecclesiastics 2 .' In addition to their jurisdiction over the clergy, the spiritual courts claimed to hear and determine all matrimonial and testamentary cases, and to try laymen for breaches of faith and morality, for heresy and for offences committed against the clergy. Their punishments were fines, penances, imprisonment, and in extreme cases excommunication. The various Ecclesiastical Courts were — (1) The Court of the Archdeacon, the lowest ecclesiastical court, presided over by the archdeacon or a judge appointed by him. In the Middle Ages the archdeacon exercised jurisdiction over a great variety of cases. His court survived the Reformation, but its business rapidly declined during the 1 8th century. From it an appeal lay to (2) The Consistory Court of the bishop, held before the episcopal chancellor and taking cognizance of ecclesiastical causes arising in the diocese. Their jurisdiction was limited by the Clergy Discipline Act of 1840 (3 and 4 Vict c. 86). 1 Hore, Hist, of the Church of England, 1 40. * D. J. Medley, Eng. Const. Hist/521. See pp. 513-523 f° r a clear treatment of the whole question of ecclesiastical jurisdiction. THE CHURCH. ^95 (3) The Provincial courts of the province of Canterbury \ which were four in number ; viz. (a) The Prerogative Court, for the trial of testamentary causes. In 1857 i ts jurisdiction passed to the Probate Court. (5) The Court of Audience, in which the primate or his vicar-general decided cases reserved for the archiepiscopal hearing. It is now practically obsolete. (c) The Court of Arches, so called from being originally held in the church of St. Mary-le-Bow (Sancta Maria de Arcubus), was the court of appeal from the diocesan courts, and also a court of first instance in all ecclesiastical cases. The president was the Dean of Arches, the representative of the archbishop of Canterbury. (d) The Court of Peculiars, which exercised jurisdiction over thirteen London parishes which were exempt from the supervision of the bishop, of London. The president was the Dean of Arches, who was at first distinct from the official presiding over the Court of Arches, but the two offices were eventually held by the same man. (4) The Provincial Courts of the province of Vork, viz. the Chancery and, prior to 1857, the Prerogative Court. (5) The Final Court of Appeal. By 25 Hen. VIII, c. 19 (1534), it was provided that ecclesiastical appeals should lie to the King in Chancery, and in the same year a court of final appeal was constituted by nominating a committee of Delegates of Appeal by commission under the Great Seal. This Court of Delegates continued to be the final court of appeal in ecclesiastical cases until 1832. when the Act of 2 and 3 Wm. IV, c. 92 transferred its powers to the King in council. As this arrangement proved cumbersome, ecclesiastical appeals were referred to the fudicial Committee of the Privy Council by 3 and 4 Wm. IV, c. 41 (1833). Section 21 of the Judicature Act of 1873 (36 and 37 Vict. c. 66) empowered the Crown to transfer such appeals to the new Court of Appeal by orders in council, but this was repealed by 39 and 40 Vict. c. 59, § 24 (1876). In consequence the Judicial Committee of the Privy Council 2()6 CHAPTER IX. remained the final court of appeal in ecclesiastical cases, and provision was made for the attendance of ecclesiastical asses- sors (§. 14). The Ecclesiastical Courts were regulated by Statute in 1689, 1813, 1832, 1840 and 1857; the Probate and Divorce courts were established in 1857. Convocation. Convocation. In the Anglo-Saxon period, ecclesiastical councils were either assemblies of the whole church such as were held at Cloveshoe and Hertford, or provincial gatherings of the clergy of York and Canterbury. Diocesan synods were only instituted after the Norman Conquest, and prior to that date membership of the provincial synods was confined to the episcopate. Abbots and archdeacons were added after the Conquest, and in 1225 Archbishop Langton summoned not only the bishops, abbots, priors, deans and archdeacons, but Establish- also representatives from the cathedral and monastic clergy. presentative In 1 283 Archbishop Peckham included representatives from the parochial clergy, and thus completed the formation of a representative assembly or Convocation in the provinces of York and Canterbury. Jealousy between the two arch- bishops prevented the formation of a national church council, and the discussion of ecclesiastical questions thus devolved on the two houses of Convocation. These bodies possessed considerable legislative powers, but in accordance with the rules drawn up by William I, none of their edicts were valid unless they had previously received the sanction of the Crown. Prior to the formation of a representative assembly, it had been customary to consult the diocesan synods and cathedral chapters on matters of taxation, but in 1295 Edward I attempted to include the clerical estate in the parliamentary system of taxation. The clergy were extremely reluctant to agree to this arrangement and preferred to grant their own taxes in Convocation. The Crown was obliged to give way, and from the end of the 14th century there is no evidence of the presence of clerical proctors in Par- liament. Clerical taxes were voted by Convocation, and THE CHURCH. 297 for the sake of convenience, it became usual to summon it at the same time as Parliament. Under Edward I, Convocation came into frequent collision History from Edward I with the King on the subject of taxation, though it invariably had to yield. During the Middle Ages, the business of Convocation was chiefly confined to granting subsidies to the King, and to discussing various ecclesiastical questions such as the Great Schism, the Statutes of Provisors and Praemunire, the administration of wills and the growth of heresy. In 1429, by 8 Hen. VI, c. 1, § I, the members of Convocation were granted the privileges of freedom from arrest already enjoyed by members of Parliament. In 1529, a petition was presented to Henry VIII by Convocation, demanding the fulfilment of certain privileges, and declaring that ' Parliament ran great risk of sin in passing any Statute which touched clerical liberties, without first consulting the clergy in their Convocations V In 1 53 1 the clergy were told by the King that they had incurred the penalties of praemunire, and only obtained pardon on payment of £118,840 (p. 285). In 1534 the The Roya Act for the submission of the clergy provided that the royal s ^ macy ' assent was necessary to the validity of measures passed by Convocation, and transferred the power of summoning that body from the archbishops to the king. From this time its chief function was to decide questions of doctrine and ritual. Thus in 1548 it agreed to a reformed version of the church service, and sanctioned the marriage of the clergy. The prayer book of 1552 does not seem to have received its sanction, but in the following year it probably gave its approval to the Forty-two Ar tides 2 . In 1563 it confirmed the Thirty-nine Articles and allowed the publication of a new Thirty-nine book of homilies. In 157 1 it drew up canons which the 1563! Queen refused to sign, and in 1576 it passed certain Articles with regard to church discipline ; in 1585 it drew up some fresh canons, and in 1597 promised reform in 1 Perry, Church Hist. ii. 69. 2 Hore, Hist, of the Church of England, 277. 298 CHAPTER IX. the ecclesiastical courts, whilst in the same year it granted Canons of the Queen a benevolence (p. 200). In 1604, the famous canons of Archbishop Bancroft were issued, inveighing against the Puritans, and regulating Church discipline and ritual; these canons, however, did not receive the consent of Parliament, and are, in consequence, not binding on any but the clergy. In 1640 Charles I continued the session of Convocation after the dissolution of Parliament ; fresh canons were passed dealing with questions of ritual, asserting the divine right of kings and the duty of the subject to give freely to the Crown, and promulgating the famous etcetera oath l . They were voted illegal by the Commons in the December of the same year. In 1661 Convocation issued a revised edition of the prayer book by order of the King, and it was accepted Convocation by both houses of Parliament in the following year. In the right of 1664, by a verbal agreement between Clarendon and Arch- dergy/ieV bishop Sheldon, the clergy surrendered their right to self- taxation, and were thenceforth included in the taxation of the laity. This step removed the chief guarantee for the summons of Convocation, and seriously impaired its political importance. In return for this surrender of their privilege the clergy acquired \ by tacit consent, the right to vote for knights of the shire, as freeholders, in respect of their glebes 2 / a right which they had not previously possessed. In 1 701 the lower house of Convocation attempted to increase its powers, but was checked by a prorogation. During the reign of Anne bitter quarrels broke out between the upper and lower house, the former sympathising with Latitudinarian and Whig doctrines, the latter with the Tories and the High Church party. In 17 17 the lower house of Convocation Hoadiey and strongly condemned the views of Hoadley, bishop of Bangor 3 , Convocation. 1 The oath ran as follows : — ' I, A. B. do swear that I do approve the doctrine ... or government, established in the Church of England . . . and that I will not . . . ever give my consent to alter the government of this Church by archbishops, bishops, deans, and archdeacons &c.' Gardiner, Hist, of Eng. ix. 146. 2 Anson, i. 46. 3 The lower house resolved that Bishop Hoadley's works were THE CHURCH. 399 who denied the necessity of a visible church or of eccle- siastical government. Before the report was presented to the upper house, Convocation was prorogued by a special order from the King, and although allowed to assemble with every Parliament, did not meet for the despatch of business Convocation \ __ . . , -,, , ceases to until Nov. 1852. 'To this gross outrage on the Church transact of England/ says Mr. Perry \ ' most of the mischiefs and i 7 i£3s». scandals, which impeded her progress during the eighteenth century, are distinctly to be traced. The Church, denied the power of expressing her wants and grievances, and of that assertion of herself in her corporate capacity which the con- stitution had provided for her, was assaulted at their will by unscrupulous Ministers of the Crown, and feebly defended by Latitudinarian bishops in an uncongenial assembly.' Since its revival in 1852 Convocation has frequently Recent work ° 1 • 1 t ofConvoca- regulated matters affecting church doctrine and ritual. In tion. 1 86 1 it framed a new canon on Sponsors, which failed to become law, and in 1865 decided to modify the terms of subscription to the articles, and obtained the ratification of its decision by letters patent. In 1872 it drew up a scheme for a shortened form of service, which was adopted by Parlia- ment in the Uniformity Amendment Act, and two years later it protested unsuccessfully against the Public Worship Regu- lation Act of 1874 (37 & 38 Vict. c. 85). In 1887 it passed a useful measure extending the hours during which the marriage service might be performed. The revival of Convocation was followed by the establish- Church ment of Church Congresses and the renewal of Diocesan Conferences. A further step was taken in 1886 by the institution of the House of Laymen, a representative body House of of laymen, summoned by the archbishop of each province 1886. to sit during the sessions of Convocation and to confer with both houses on subjects submitted to or initiated by itself. 'subversive of all government and discipline in the Church of Christ, and tended to reduce His Kingdom to a state of anarchy and confusion, to impugn and impeach the Regal supremacy in cases ecclesiastical, and the authority of the legislature to enforce obedience in matters of religion by civil sanction.' ' Church Hist. ii. 585. 300 CHAPTER IX. Constitution The constitution of Convocation has remained unaltered tion. since the days of Edward I. It consists of two assemblies representing respectively the provinces of Canterbury and York, and since 1534 has been summoned by the writ of the Sovereign addressed to each archbishop at the beginning of a fresh Parliament. Each Convocation consists of two houses, the upper containing the archbishops and bishops, the lower, the deans, archdeacons and proctors. The province of Canterbury is represented by one proctor for each cathedral chapter, and by two proctors for the clergy of each diocese. The province of York sends one proctor for each cathedral chapter, and two proctors to represent each archdeaconry. Until 1884 both houses sat together, but since that year the upper house deliberates apart from the lower. ' The legislative powers of Convocation are confined to the making, repealing or altering of canons: and the effect of these canons, unless Parliament affirm them, is to bind the clergy only V Numerous projects have been mooted with a view to reform its procedure and its composition. It still repre- sents only half the clergy, and its debates are often rendered ineffective by the continued separation of the two provinces. Tithes. Tithes have been denned as \ the tenth of the increase yearly arising from the profits of lands, the stock upon lands, and the personal industry of the inhabitants/ They were of three kinds: (1) predial, — tithes of crops and wood, (2) mixed, — tithes of wool, pigs, etc., (3) personal 2 , — tithes of various trades and fisheries. In England, the custom of paying tithes dates from very early times. It is men- tioned in the penitentials of Theodore, and its institution is ascribed by the laws of Edward the Confessor to Augustine 3 . Previous to 787 the payment of tithes was purely voluntary, but the legatine councils of that year, which acquired the authority of a witenagemot through the attendance of the 1 Anson, ii. 387. 3 The payment of personal tithe never became general in England. 3 Stubbs, i. 228, note. THE CHURCH. 301 kings and ealdormen, made it compulsory on all landowners. It was thenceforth a recognised part of the law of the land and was frequently enforced by subsequent legislation \ In Anglo-Saxon times there appear to have been no definite rules with respect to the appropriation of tithes, but they were usually received by the cathedral chapter, and dis- tributed by the bishop. After the Norman Conquest many landowners devoted a large part of their tithes to the main- tenance of religious houses, thus depriving the parish priest of the provision for his support. To cure this evil the council of 1 200 laid down that the parochial clergy had the first claim on tithes, but by that date a large proportion of the tithe of the kingdom had been annexed to monastic foundations, and accordingly passed to the Crown at the dissolution of the monasteries. From time to time these tithes were granted out to subjects who became known as lay rectors or impropriators. The payment of tithes was occasionally regulated by statute, e.g. in 1536 (27 Hen. VIII, c. 20), 1540 (32 Hen. VIII, cc. 7, 22), 1545 (37 Hen. VIII, c. 12, when the tithe payable in London was to be 2s. yd. on every £1 rent), 1549 (2*3 Ed. VI, c. 13), 1696 (7 & 8 Wm. Ill, c. 6), and 1705 (3 & 4 Anne, c. 16). Tithes were originally paid in kind, but the inconveniences which resulted from this practice were so great that it became customary to commute them for a fixed money payment. The Tithe Commutation Act of 1836 provided for the commutation of tithes in England and Wales for a rent charge or money composition varying with the current price of corn, and redeemable at not less than twenty-five times their annual amount. The Tithe Rent Recovery Act of 1891 provided for the suspension or reduction of tithes under certain circumstances, and in ordinary cases of non-payment substi- tuted a process in the county court in lieu of distraint by the tithe owner. 1 The grant of a tenth part of his possessions by Ethel wnlf, which has sometimes been regarded as the origin of the tithe system, was merely a private act of the king. 302 CHAPTER IX. Queen Anne's Bounty. In 1534, by 26 Hen. VIII, c. 3, all first-fruits and tenths formerly paid to the Pope were made over to the Crown; they were restored by Mary in 1555 (2&3 Phil. & Mar. c. 4), but again taken by the Crown in 1559 (1 Eliz. c. 4); they continued to be paid to the Sovereign until 1704, when they were given up by Anne (2 & 3 Anne, c. 20 *), in order to form the provision for augmenting the incomes of poor benefices, known as Queen Anne's Bounty. In 1707, livings of not more than £50 annual value were exempted from the payment of first-fruits and tenths (6 Anne, c. 24). This Bounty was increased by Parliamentary Grants amounting to £1,100,000 between the years 1809-1820. The Bounty is administered by a Board of Governors, on the principle of adding as much again to any sum raised by parishioners, or others, for the increase of the income of a benefice. Summary of Summary of the Chief Dates in Church History. Conversion of Kent by Augustine, 597 (p. 272). Separation of the Ecclesiastical and Temporal Courts temp. William I (Sel. Charters, 85) (p. 274). The Contest about Investitures, 1103 (p. 276). Constitutions of Clarendon, 11 64 (p. 277 and App. A). Annates first claimed in England, 1256 (p. 286). First Statute of Mortmain^ or de viris religiosis, 1279 (7 Ed. I, st. 2) (p. 280). Statute of Carlisle, 1307 (p. 281). First Statute of Provisors, 135 1 (25 Ed. Ill, st. 4), (p. 282). First Statute of Praemunire, 1353 (27 Ed. Ill, st. 1), (p. 283). Second Statute of Provisors, 1390 (13 Ric. II, st. 2, c. 2). Second Statute of Mortmain, 1391 (15 Ric. II, c. 5). Second Statute of Praemunire, 1393 (16 Ric. II, c. 5). Statute de hereiico comburendo, 1401 (2 Hen. IV, c. 15), (p. 284). The Reformation Parliament, 1529-1536 (p. 285). 1 This is cap. 1 1 in some editions of the Statutes. THE CHURCH. 303 Appeals to Rome forbidden, 1533 (24 Hen. VIII, c. 12), and 1534 (25 Hen. VIII, c. 19), (p. 286). Payment of Annates forbidden, 1534 (25 Hen. VIII, c. 20), (p. 286). First Act of Supremacy, 1534 (26 Hen. VIII, c. 1), (p. 287). Dissolution of the Smaller Monasteries, 1536 (27 Hen. VIII, c. 28), (p. 287). Dissolution of the Larger Monasteries, 1539 (31 Hen. VIII, c. 13), (p. 287). Act of Six Articles, 1539 (31 Hen. VIII, c. 14), (p. 287). First Act of Uniformity, 1549 (2 & 3 Ed. VI, c. 1), (p. 288). Second Act of Uniformity, 1552 (5 & 6 Ed. VI, c. i),(p. 289). Second Act of Supremacy, 1559 (1 Eliz. c. 1), (p. 289). Third Act of Uniformity, 1559 (1 Eliz. c. 2), (p. 289). The Thirty-nine Articles issued, 1563 (p. 289). Establishment of the Court of High Commission, 1583 (P- 55). The Hampton Court Conference, 1604 (p. 290). Exclusion of the Bishops from the House of Lords, 1642 * (p. 290). Corporation Act, 1661 (13 Car. II, st. 2, c. 1), (p. 291). Fourth Act of Uniformity, 1662 (14 Car. II, c. 4), (p. 291). The Clergy surrender the right of self-taxation, 1664 (p. 298). Conventicle Act, 1664 (16 Car. II, c. 4), (p. 291). Five Mile Act, 1665 (17 Car. II, c. 2), (p. 291). Test Act, 1673 (25 Car. II, c. 2), (p. 292). First Declaration of Indulgence, 1672, withdrawn 1673. Catholics debarred from Parliament, 1678 (30 Car. II, st. 2, c. 1), (p. 292). Second Declaration of Indulgence, 1687 (p. 292). Toleration Act, 1689 (iWm. & Mar. c. 18), (p. 292). Occasional Conformity Act, 171 1 (p. 292). Schism Act, 17 13 (13 Anne, c. 7), (p. 292). Convocation ceases to sit, 171 7-1852 (p. 299). 1 The Bill for the exclusion passed the Commons in October 1641, but only received the royal assent in February 1642. 304 CHAPTER IX. Catholic Emancipation Act, 1829 (10 Geo. IV, c. 7), (p. 141). Jewish Relief Act, 1858 (21 & 22 Vict. c. 49), (p. 239). Uniformity Acts Amendment Act, 1872 (35 & 36 Vict. c. 35) (which makes provision for shortening, and altering on occasions, the order of Divine Worship). Public Worship Regulation Act, i874(37&38 Vict. c. 85). CHAPTER X. THE DEFENCES OF THE REALM. English military systems have been based in turn on the English J J military three principles of allegiance, homage and pay. The first systems, was represented by the fyrd, or national militia, the second by the comitatus and the later feudal levy, and the third by the mercenary troops of the Middle Ages and the regular army of to-day. (i) Allegiance. to Aiie In Anglo-Saxon times the trinoda necessitas made service in the Fyrd, or national militia, incumbent on every freeman. The F y rd - Such service was a personal obligation and dated from the time when ' the host was the people in arms V and military organisation was largely dependent on tribal and family relations. The fyrd was an infantry force, led to battle by the ealdorman, and all who failed to comply with the summons to its ranks were liable to a heavy fine called fyrdwite" 1 . The importance of the fyrd was considerably lessened by the development of the comitatus into a body of professional warriors, but its decline was arrested by the Danish wars Danish wars, of the 9th century. But though the national levies fought gallantly enough when well led, it was soon obvious that they were no match for the Dane. They could not be called out without the consent of the local folkmoot, and when they 1 Stubbs, i. 189. - 8 By the laws of Ini, a landowner was fined 1 20 shillings and de- prived of his land, a landless man 60 shillings and a ceorl 30 shillings. Sel. Charters, 62, c. 51. 306 CHAPTER X. appeared in the field they found themselves outmatched at all points. They were inferior to their opponents in ar- mament, tactics, training, and mobility, their slow moving forces were baffled by the rapidity of the Danish marches, and concerted action was often prevented by provincial jealousies or the treachery of rival ealdormen. It was clear that the Vikings could only be successfully opposed by professional troops, and Alfred turned to the thegnhood (p. 309) to supply him with the basis of a new military Reform of organisation. At the same time he reformed the fyrd by dividing it into two halves, each of which took the field in turn, while the other was employed in defending the burghs. Toward the close of the Anglo-Saxon period, the organ- isation on which the fyrd had been based was falling into abeyance. Domesday shows us that towns and even shires were allowed to compound for the service due from individual inhabitants, and at the same time the growth of commendation transferred the obligation of service from the commended man Retained by to his lord. But the fyrd was retained by the Conqueror as a useful weapon against the baronage, and at the celebrated gemot at Salisbury (1086) all landholders, whether tenants in chief or not, were required to take an oath of allegiance to the king *. The fyrd did good service against the disaffected Normans in the reigns of Rufus and Henry 1 2 , and under Stephen and Henry II beat the Scots at Northallerton in 1 138 and at Alnwick in 11 74. As a rule it was not called upon for foreign service, but in 1094 Rufus ordered 20,000 of the national militia to be sent to Normandy : on their arrival at Hastings, Ranulf Flambard seized the journey money of ten shillings per man with which their shires had furnished them, and then sent them penniless home 3 . The unpopularity of his mercenary troops, and the fidelity of the English militia during the rebellion of 11 74 induced Henry II Assize of to reorganise the fyrd by the Assize of Arms (1181). All freemen except the greater barons, the Jews, and the villeins 4 1 Sel. Charters, 82. - 2 lb. 92, 98. 3 lb. 93. * Villeins were made liable in 1252, Sel. Charters, 371. THE DEFENCES OF THE REALM. 3C7 were to arm themselves in proportion to their wealth, and their liability was to be declared by a jury before the itinerant justices 1 . In 1205, 121 7 and 1231 writs 2 were issued for the levy of the fyrd, and the Assize of Arms was confirmed and enlarged by a writ of 1252 and by the Statute of *"*;*« of Winchester 3 (1285). This Act appointed two constables in Winchester. every hundred to 4 hold the view of arms ' and present defaulters to the justices. During the later Plantagenet reigns the military duties of the fyrd became unimportant, and it was mainly employed for police purposes. By degrees it developed into the MILITIA which, by an Act of 1327, finally confirmed in 1402, was not Re y^ to serve out of its own county, except in case of invasion. The liabilities of the ancient fyrd were revived by Edward VI and Mary, and by the Statutes of 1550 and 1558 men were compelled to keep arms in proportion to their wealth, while the command of the militia was taken from the sheriff and vested in the lords lieutenant. But these Statutes were repealed by 1 Jac. I, c. 25, § 46 (1604), and in abolished in the same year the Trained Bands (or Train Bands) were instituted. These were bodies of urban militia combining a large volunteer element with the principle of the fyrd 4 ; they, however, were abolished at the Restoration. The attempt of the Long Parliament in 1642 to control the appointment of the militia officers precipitated the Civil War, and accordingly, the Act of 13 Car. II, st. 1, c. 6 (1661), while providing for the organisation of the militia under lieutenants of counties appointed by the king, declared that the command of all forces by land and sea, including the militia, was vested in the Crown alone. During the first half of the 18th century the militia lost The Militia ,7 . J in the 18th much of its importance, but in 1757, in consequence of century, rumours of a French invasion, it was reorganised on a different footing by 30 George II, c. '25. Each county was 1 Sel. Charters, 153 sq. 2 lb. 281, 343, 359. 8 lb. 472, VI. * Diet, of Eng. History. X 2 3 o8 CHAPTER X. to contribute a definite quota, to be chosen by ballot from men between the ages of eighteen and forty-five : when on service the militia were to receive the same pay as the regulars, and be subject to the Mutiny Act, while the Crown was given a veto on the appointment of officers and em- powered to embody the force in case of invasion or rebellion, subject to the subsequent sanction of Parliament. The ballot, however, has been annually suspended by Act of Parliament since 1829, and from the peace of 18 15 until its recon- stitution in 1852 the militia had little more than a nominal existence. An important constitutional change was intro- Actofi8 7 i. duced by the Army Act of 1871, which deprived the lords lieutenant of the control of the militia, and vested it in the Crown, and practically amalgamated the force with the The present regular army. At the present day militiamen are raised by voluntary enlistment, though ballot may be resorted to in case of need, are required to submit to a specified period of training during which they are subject to military law *, and cannot be compelled to serve outside the United Kingdom. The control of the Crown over the militia is exercised through the Secretary of State and, by 45 and 46 Vic. c. 49 (1882), the force may be embodied by order in Council, subject to subsequent reference to Parliament. THE VOLUNTEERS. militia. Volunteers. But the militia are not the only troops who represent the principle of allegiance. Voluntary association for the defence of the country can be traced back as far as the reign of Henry VIII, and toward the close of the eighteenth century the aggressive policy of Napoleon led to the enrolment of large bands of Volunteers to protect our shores from in- vasion. With the exception of the Yeomanry, or heavy cavalry, these troops were disbanded after the peace of 181 5, and our present Volunteer force owes its origin to the threatening attitude of France at a moment when England's resources were strained to the utmost by the Indian Mutiny 1 Militia officers are always subject to military law. THE DEFENCES OF THE REALM. 309 and the War with China. Fear of invasion caused a panic, and in 1859 the enrolment of Volunteers was authorised by a circular letter issued to the lords lieutenant by the Secretary for War. The troops thus raised were the beginning of a permanent Volunteer force, which by the Volunteer Act of 1863 might be called out by the Crown whenever an invasion was feared. In 18 71 the Volunteers were placed under the direct control of -the War Office, and they were reorganised by the Regulation of Forces Act of 188 1. At the present day they number over 200,000 men, consisting of riflemen, artillery, engineers, and light horse. Heavy cavalry is supplied by the Yeomanry. Parliament makes an annual grant for the maintenance of the force. (2) Homage. < 2 > Homa g e One of the effects of the Norman Conquest was to introduce a military system based on the principle of homage. Such a principle was not entirely new, and may be discerned in the earlier institutions of the comitates and the thegnhood. The comes of Tacitus, closely attached The Thegn- by personal ties to the leader of his choice, gradually developed on English soil into the warrior thegn. His valour was rewarded by gifts of conquered territory, and he became a professional soldier, liable to service at his own expense, and ready to take the field at the first news of an enemy. It was to the thegnhood that Alfred turned when sorely pressed by the Danes. He extended its duties and privileges to all holders of five hides of land, and thus laid the basis for a permanent military organisation, and further strengthened the connexion between land tenure and military service. But this tendency was never completed in Anglo-Saxon times. Although the thegn kept armed retainers and was liable to serve the Crown at his own expense, he had received his estate as the reward of past, not as an earnest of future service, and we have no evidence to show that his duties involved military service apart from the fyrd \ 1 Mr. A. H. Tohnson, Syllabus of the Select Charters. 3io CHAPTER X. The feudal levy. Its draw- backs. Attempts to modify it. But with the Norman Conquest, military service became inseparably bound up with land tenure. The king as supreme landowner granted out estates to his followers on condition of military service. They in turn sublet their holdings to other tenants, and gradually the country was divided up into a number of knights' fees, 1 the holder of each being liable to furnish a fully equipped horse- soldier to keep the field for forty days. It has hitherto been supposed that the liabilities of each landowner varied in exact proportion to the size of his estate, but a writer in the English Historical Review has recently maintained that the tenant's service was arbitrarily fixed by his overlord when he was put in possession of his fief. 2 The feudal levy was called together by writs closely resembling those issued for the summons of the Commune Concilium. The greater barons were summoned by special writ addressed to them individually, while the lesser tenants- in-chief received a general summons through the Sheriff 3 . But the feudal levy soon proved unsatisfactory. The power which the existence of such a force put in the hands of the barons, rendered it a constant source of danger to the Crown, while its insubordination 4 , its contempt for tactics or strategy, the limited nature of its service and its occasional refusal to serve abroad, rendered it ineffective as a military force. Six weeks might suffice to crush a rebellion but was far too brief a period in which to bring a foreign campaign to a successful conclusion. Attempts were therefore made to modify and ultimately to supersede it. By the Oath at Salis- bury (1086), all landholders were forced to swear allegiance to William, who wished to thereby deprive vassals of any excuse 1 This was not complete till the reign of Henry II. 2 Eng. Hist. Review, vol. vi. p. 442. 8 Stubbs, ii. 278. 4 ' Assembled with difficulty, insubordinate, unable to manoeuvre, ready to melt away from its standard the moment that its short period of service was over, — a feudal force presented an assemblage of un- soldierlike qualities such as has seldom been known to co-exist.' — Oman, Art of War in the Middle Ages, p. 49. # THE DEFENCES OF THE REALM. 31I for adhering to their overlords in opposition to the Crown. A still more important step was the institution of Scuiage in 1 159 (p. 188), which enabled the Crown to hire mercenary troops and to strike an indirect blow at the power of the greater landholders. By applying the principle of the Quota to the feudal levy, Henry II lessened its numbers and obtained a force which would keep the field for a pro- portionately longer time 1 . The character of the feudal army was further modified by its gradual confusion with the fyrd. The Assize of Arms and the Statute of Winchester applied to both 2 , and in 12 17 Henry III ordered the Sheriff to summon the fyrd and the feudal levy at the same time and place 3 , while in 1278 Distraint of Knight 'hood com- pelled all holders of land worth £20 a year 4 to assume the duties of knightly tenure on pain of a heavy fine. The decay of the feudal spirit, and the introduction of fresh methods of raising troops hastened the decline of the feudal levy, and it had fallen into disuse by the end of the 14th century. However, its liabilities did not disappear until the abolition of feudal tenures at the Restoration, and Abolished, 12 Car II it was called out as late as 1640 for service against the Scots. (3) Pay. (3) Pay . The principles of allegiance and homage eventually gave way to the principle of pay, though for a long time the hired soldier, being usually a foreigner was regarded with intense hatred by Englishmen. The Huscarls of Canute, a per- Canute's manent force of three to six thousand men, are the first paid uscarls - soldiers met with in English history, but they did not survive the Conquest. However, the impossibility of carrying on a foreign campaign with a feudal force, compelled the Norman kings to rely on mercenary troops who were more Foreign amenable to discipline, and would serve as long as their wages mercenaries. 1 E.g. in 1 1 57 he called on two knights to furnish a third who should serve for four months. 2 Sel. Charters, 154, § 1 ; 472, § vi. 3 Ibid. 343. 4 The qualifying sum was raised to £40 under the Tudors, but Distraint of Knighthood itself was abolished by the Long Parliament. 31a CHAPTER X. were regularly paid. The Conqueror employed a force of French and Breton mercenaries to repel Canute of Denmark, and Henry I carried on his Norman wars with bodies of Flemish adventurers. During the civil war of Stephen's reign mercenaries were employed by both sides, and the treaty of Wallingford expressly provided for their dismissal 1 . Henry II carried on his foreign wars with a force of 10,000 Brabancons, but he only brought them into England once, and then to repel an invasion. Richard raised a force of Basques and Navarrese, while John employed mercenary troops to resist the threatened French invasion of 12 13. The fifty-first article of Magna Carta stipulated that they should be withdrawn as soon as peace was restored. Foreign mer- cenaries were occasionally used by Henry III, but were rarely employed in England after his reign, although a body of German horse were brought over as late as 1549 to quell the insurrection in the west. English In the 14th century, the foreign mercenary was re- hired, placed by English soldiers serving for pay. The king either hired troops himself or contracted with his lords to supply a given number of men, armed in a specified way to serve for a year at a stipulated scale of wages. The battles of the Hundred Years War were mainly fought by English troops raised in this fashion, and since their pay was higher than that of the agricultural labourer and there was always a prospect of plunder, there was no difficulty in inducing men to serve 2 . Commis- Troops were also raised by Commissions of Array, by Array. which the king empowered royal officers to impress a specified number of men in each county. They were first issued in the reign of Edward I, and were employed to raise a certain quota from the men who were liable to service either in the 1 Sel. Charters, 128. a Some idea of the cost of campaigning may be gathered from the list of the expenses for the army with which Edward III was besieging Calais. Bishops and earls received 6/8 a day, barons 4*., knights 2 s., guides and esquires is., mounted archers 6d., unmounted archers $d., Welsh foot- men 2d. These sums should be multiplied by 1 5 when compared with the money of to-day. — Warburton's Edward III. Epochs of Modern Hist. p. 69. THE DEFENCES OF THE REALM. 313 feudal levy or the national militia. Strictly speaking, com- missions of array might only be issued to raise troops to repel an invader, and in Edward I's reign their expenses were paid by the Crown. But the system was soon abused. Sometimes levies were raised for foreign service, sometimes the commissioners were allowed to impress as many men as they could, while Edward II forced the shires and towns which furnished the troops to pay their wages and provide them with better arms than the law required. Limitations were placed on the power of impressment by a Statute of 1327, and in 1349 it was provided that no one, who was not Statutes of so bound by the conditions of his tenure, should be called on Sdi+ra? to supply men at arms, hobblers or archers, except by the consent of Parliament *. Abuses were further restrained by 4 Henry IV, c. 13 (1402), which enacted that no one should be compelled to serve out of his county except in case of invasion, and that troops sent on foreign service must be paid by the Crown 2 . Commissions of array were employed by the Tudors to organise the national militia. They were issued by the Crown to leading personages in the kingdom who were thereby authorised to draw up lists of able-bodied men in their districts, to regulate their arms and equipment, and to drill and exercise them. When required for actual service these troops were placed under the lords lieutenant, and in addition to their pay received an allowance for their uniform and travelling expenses '. This was called Coat and Coat and Conduct Money, and its levy by Charles I during the Scotch Money. War was a revival of the old abuse of forcing the local districts to pay for troops raised for offensive warfare. THE STANDING ARMY. Few changes of any moment took place in our military Standing system from the days of the Plantagenets to the middle rmy * of the 17th century. The Tudor despotism was not 1 Stubbs, ii. 285. 2 lb. iii. 279, note 1. 3 Prothero, Statutes and Const. Documents, Introduction cxix, cxx. 3'4 CHAPTER X. The New Model, 1645. Disbanded 1660. Charles II and James attempt to raise a standing army. based on force, and the Tudor Sovereigns were content to rely on the national militia and a small permanent force known as the Yeomen of the Guard. It is to the Great Rebellion and the organising power of Cromwell that we owe the beginnings of our present standing army. In 1645 the different corps of local militia and loose levies which com- posed the parliamentary forces were united under one com- mander in chief and converted into a disciplined professional force of 22,000 men, paid by taxes levied on the whole king- dom. During Cromwell's protectorship this force was kept up and enlarged, and in 1653 the Instrument of Government provided for the maintenance of a standing army of 30,000 men. Feared and distrusted by the Royalists, these troops, , with the exception of 5,000 men, were disbanded at the Restor- ation, and the abolition of feudal tenures left the national militia the only military force recognized by the constitution. The king could indeed raise troops by contract if Parliament would grant the necessary supplies, but when they were not on actual service it was practically impossible to maintain dis- cipline, because the law treated any departure from the rules which regulated the conduct of the ordinary citizen as an in- fringement of the liberty of the subject K On the other hand, Parliament was disinclined to grant supplies for the mainten- ance of a military force. Cromwell's Government had shown how despotic a ruler might become when backed by a disciplined body of troops, and the rule of his Major Generals had aroused a very strong feeling against a standing army. Consequently, although Charles II was allowed to retain about 5,000 troops 11 for garrison and guard duty, any attempts to increase their numbers were regarded with suspicion and invariably called forth remonstrances from Parliament. But James II, heed- less of the attitude of the nation, seized every opportunity to add to the numbers of his standing army. He attempted to suppress the militia, took advantage of Monmouth's rebellion to raise fresh regiments under reliable officers, and formed a permanent camp at Hounslow Heath. But 1 Anson, ii. 339. THE DEFENCES OF THE REALM. 315 his plans were overthrown by the Revolution of 1688, and the Bill of Rights expressly declared that the maintenance of a standing army in time of peace, without the consent of Parliament, was illegal. The standing army as a constitutional force dates from the reign of William III. The French war necessitated the maintenance of a permanent body of troops, and in 1689 Parliament provided for the maintenance of discipline by the Mutiny Act (1 Wm. & Mary, c. 5) which empowered the Mutiny Act Crown to punish mutiny and desertion by courts martial. The long wars of the 18th century accustomed Englishmen to the existence of a standing army, and all fear that it might be employed to override national liberties gradually passed away 1 . At the present day the numbers of the army and the sums to be spent on it are settled by an annual vote of Parliament, based on estimates presented by the Minister of War. The old system of raising men by a series of contracts between the king and his influential subjects has been abandoned in favour of a direct contract between the Crown and the soldier 2 , and the term of service, which since the introduction of a standing army had lasted for the soldier's lifetime, has been curtailed to a maximum period of twenty-one years. Martial Law, That is, law enforced by a military court was originally Cour* of administered by the Court of Chivalry (p. 64). During the mediaeval period complaints were often made of its arbitrary proceedings, and in the reign of Richard II its action was limited by Statute to times of war. It fell into abeyance under the Tudors and discipline could then only 1 Instances of the old dislike are sometimes found — thus in 1731 (8 Geo. II, cap. 30), troops were forbidden to come within two miles of any town not garrisoned during an election, and in 1741 the calling in of the troops to quell an election riot at Westminster was stigmatised as • 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 consti- tutions of this kingdom.' 2 The Crown first began the work of recruiting in 1783, although the old system was employed as late as the Crimean war. — Medley, Eng. Const. Hist. 430. 31 6 CHAPTER X. Articles of be enforced by Articles of War, issued by the Crown in virtue of its prerogative, and carried into effect by specially appointed officials. These articles were only valid in times of war or rebellion, but the power which they placed in the hands of the Crown was frequently abused. Elizabeth did not hesitate to apply martial law to civilians, and Charles I made use of it in time of peace 1 . In 1588 all persons bringing papal bulls into England were declared subject to martial law, and in 1595 Sir Thomas Wilford was appointed Provost Marshal of London and directed to seize 'notable rebellious persons/ and execute them by military law 2 . In 1627 provost-marshals were appointed in every shire to punish rioters by martial law 3 , and in the same year soldiers were billeted on individuals who refused to contribute to the forced loan. Both billeting and the en- forcement of martial law were condemned by the Petition of Right* (1628), but though Charles gave his assent to this measure he nevertheless continued to quarter soldiers on private persons 5 . It has been said above that Articles for the regulation of the troops might only be issued in war time. But as soon as a standing army was set on foot, a fresh arrangement proved indispensable. It was impossible to maintain a permanent force in time of peace so long as desertion could only be punished by a civil court and insubordination was an offence unrecognized by the law. Accordingly the Mutiny Act of 1689 (1 Wm. & Mary, c. 5), which sanctioned the existence of a standing army, made mutiny and desertion First Mutiny punishable with death and empowered the Crown to com- Act, 1689. . . , . . . mission courts martial to deal with such offences in time of peace. 6 In consequence of the Jacobite rebellion of 1 Medley, Eng Const. Hist. 427. 2 Hallam, i. 243. 3 Gardiner, Hist, of Eng. vi. 156. 4 Sel. Charters, 516, vi. vii. 5 The Yorkshire gentry petitioned the Crown on this subject in 1 640. See Gardiner, Hist, of Eng. ix. 177 and 187. 6 Anson, ii. 348. With a few breaks, a Mutiny Act has been annucUly passed by parliament since 1689, until superseded by the Army Act of 1 881. THE DEFENCES OF THE REALM. 317 1 715 further disciplinary powers were conferred on the Crown by the Mutiny Act of that year, and by its provisions the Sovereign was authorised to make Articles of War to regulate troops in the United Kingdom in time of peace. In 1803, however, the royal prerogative of issuing any such articles was merged in the Act of Parliament 1 . In 1879 the K provisions of the Mutiny Act and of the Articles of War were consolidated into a code of military law 2 / and in 1 88 1 this was superseded by an amended code called the Army Act which is annually passed by Parliament for one Army Act of year. It sanctions the maintenance of a standing army for x the defence of the kingdom and provides for its regulation by military law. The Act is of very great constitutional importance : being passed for one year only it guarantees an annual session of Parliament, and should the two Houses refuse to re-enact it, military discipline would be at an end. Impressment. impress- * merit. (1) For the Army. Impressment was the arbitrary seizure of d) for Army, individuals for service in the army or the navy. Statutory limitations had been placed on its employment for the army as early as 1327, but it was not until 1641 that it was effectively restrained. By 16 Car. I, c. 28, impressment of his majesty's subjects was declared illegal except ' in case of necessity of the sudden coming in of strange enemies into the kingdom, or except they be otherwise bound by the tenure of their lands/ Since the passing of this Statute impressment for the army has never been resorted to by virtue of the royal prerogative, although it has occasionally been sanctioned by parliament : thus in 1779 (19 George III, c. 10) the Crown was empowered to impress idle and disorderly persons who were not engaged in trade, or who did not possess sufficient substance for their maintenance. The system has been entirely abandoned during the present century in favour of voluntary enlistment. (2) For the Navy. Impressment for the navy has never (2) for Navy, been declared illegal and has on the contrary been frequently sanctioned by Parliament, e.g. in 1378 (2 Ric. II, c. 4), 1555 1 Enc. Brit. art. Military Law. a Anson, ii. 348. 31 8 CHAPTER X. (2 & 3 Phil, and Mary, c. 16), 1562 (5 Eliz. c. 5), 1696 (7 & 8 Will. Ill, c. 21), 1703 (2 & 3 Anne, c. 6), 1705 (4 & 5 Anne, c. 19), 1740 (13 George II, cc. 17. 28), and even as recently as 1810 and 1836. Impressment was regarded as indispensable for providing sailors for the navy, and it was not until the Crimean War that a fleet was manned without recourse to it \ Although the law only allowed seafaring men to be pressed, the pressgangs did not scruple to seize apprentices, artisans and labourers, and thereby leading to great hardships and oppression. The prerogative has never been renounced by law, but it would probably prove impos- sible to enforce at the present day, and its future employment has been rendered unnecessary by the formation of a naval reserve 2 . chief dates chief Dates in the History of the Army. history of T/he Huscarls, a standing force of mercenaries, introduced the Army. ° by Canute about 1020. The Norman Conquest introduces the feudal levy (p. 310). The Militia win the Battle of the Standard, 1138, and Alnwick, 1174. Introduction of Scutagc, 11 59 (p. 188). Assize of Arms, 1181. Issue of Commissions of Array, 1282 (p. 312). Statute of Winchester, 1285. Impressment for the army forbidden, 1327 (p. 317). Repeal of the Statutes of Armour, 1603. Martial law forbidden, 1628. Impressment for the army finally declared illegal, 1641. A standing army set on foot, 1645, but (p. 314) Disbanded at the Restoration, 1660. Bill of Rights declares a standing army illegal, if not sanctioned by Parliament, 1689. The first Mutiny Act, 1689 (p. 316). The reorganisation of the Militia, 1757. The Militia revived, 1852. Volunteers enrolled, 1859 (p. 308). 1 Medley, Eng. Const. Hist. 435. 2 Ibid. THE DEFENCES OF THE REALM. 319 Abolition of Purchase, 1871. Crown resumes its control over the Auxiliary Forces, 1871. Army Discipline Act, 1879 (42 & 43 Vict. c. 33). Regulation of the Forces Act, 1881 (44 & 45 Vict. c. 57). Army Act, 1881 (44 & 45 Vict. c. 58). Militia Act, 1882 (45 & 46 Vict. c. 49). The Navy. The English navy as an organised force The Navy, dates from the reign of Henry VIII. Earlier sovereigns had been content with a system which provided an efficient force in time of war, without burdening the Crown with the expense of a permanent navy. The ravages of the Vikings in the 9th century made the The Anglo- need of a fleet strongly felt, and Alfred endeavoured to meet the want by building larger vessels than had been hitherto constructed and by manning them with Frisian ■ pirates.' In 1008 Ethelred ordered every 300 hides of land to furnish a ship, seaboard and inland districts being equally liable. This system, however, was soon abandoned, and the un- opposed invasion of the Norwegians and Normans in 1066 shows that the navy was of no practical value at the time of the Conquest. The efforts of the Conqueror were more successful. In The Cinque . Ports. 1066 he incorporated the Cinque Ports (p. 220) which, in return for certain privileges, were to furnish the Crown with fifty-two vessels to serve for fifteen days in the year. Until the formation of a permanent navy by Henry VIII the Cinque Ports' contingent 'probably formed the nucleus of any English force upon the sea V The growing importance attached to the navy is shown by a provision in the Assize of Arms (1181), forbidding the sale of any ship or timber to foreigners 2 , and by one in the Statute of Winchester (1285), prohibiting the cutting down of oaks or great trees 3 . John paid special attention to the fleet, and commenced the practice of appointing administrators to control the king's ships and the vessels provided by the Cinque Ports. The title of 1 Medley, Eng. Const. Hist. 434. 2 Sel. Charters, 136. 3 lb. 474. 320 CHAPTER X. admiral is not met with until Edward Fs time. The earlier part of his grandson's reign is famous in our naval annals, but English shipping was much hampered by commercial restrictions, and with the failure of the war the fleet was neglected and the coast left without adequate protection. In 1378 the navy was too weak to keep even English waters free from pirates, and it was owing to the patriotism of a London merchant named John Philpot that a private fleet was fitted out which captured the Scotiish pirate Mercer 1 . In 1381 First Naviga- was passed the first Navigation Act, which aimed at fostering ° ,13 x ' the navy by giving Englishmen a monopoly of the carrying trade, but our shipping had so diminished that it was found impossible to enforce the statute. The Lancastrian kings made several attempts to protect the coasts from pirates, but with indifferent success, and though Henry V built a few large vessels of the Genoese type, the decline of the navy under Henry VI was so marked that foreigners bade English- men take a sheep rather than a ship for their emblem. Another Navigation Act, closely resembling the previous one of 1 381, was passed in 1463, but it soon became a dead letter, and though the commercial treaties of Edward IV did some- thing to encourage English shipping, it was not until the Work of reiern of Henry VIII that any attempt was made to organise Henry VIII. . 6 J _ J * , °. . . the navy as a permanent force. I hat monarch established dockyards at Deptford, Woolwich, and Portsmouth, appointed controllers to supervise the civil affairs of the navy, raised the officers to a distinct profession, and incorporated the Fraternity of the Holy Trinity at Deptford, authorising them to ' frame articles concerning the science and art of mariners V Elizabeth and the first two Stuarts paid considerable attention to the navy, and great improvements were made in the con- struction of vessels. In 1648 the navy was weakened by the secession of Prince Rupert with twenty-five ships, but the vigorous measures of Cromwell enabled England to cope suc- cessfully with the Dutch navy, at that time the finest in existence. 1 Enc. Brit. art. Navy. 2 Cunningham, Eng. Industry and Commerce, i. 441. THE DEFENCES OF THE REALM. 3^1 Between the Restoration and the Revolution, mainly owing Pe Pys and to the energetic policy of Samuel Pepys and James Duke of York (afterwards James II), great improvements were made in the administration of the navy, and its numbers were largely increased. The introduction of the half-pay system enabled a permanent body of officers and men to be retained in time of peace, and these new regulations were left un- touched at the Revolution. In 1708 the office of Lord High Admiral was put in commission (p. 257), and in 1832 the Navy Board which superintended the pay and the stores, and the Victualling Board which managed the commissariat, were abolished, and since 1835 the supervision of the navy has rested entirely with the Admiralty Board 1 (p. 258). At the outbreak of the great Civil War the management of Naval the navy fell into the hands of Parliament, and the latter lsc,p,n retained its control after the Restoration. In 1661 provision was made for naval discipline by the issue of Articles of War, which enumerated various offences and their punishments, and empowered the Lord High Admiral to issue commissions to hold courts martial 2 . Various alterations were made from time to time, and the regulations dealing with naval discipline were amended and consolidated in 1866 by the Naval Discipline Ac I, which stands in the same relation to the navy as the Mutiny Act does to the army. Although the right of impressment has never been definitely impressment given up (p. 317) the navy is now manned by the voluntary vesTeis! ant enlistment of sailors who serve on ships provided by the * Crown. But for centuries it was customary to impress not only men but also vessels for the king's service. The Cinque Ports' fleet and the few ships belonging to the Crown were reinforced by a number of pressed or hired merchant vessels. Out of 730 ships with which Edward III blockaded Calais only twenty-five belonged to the Crown, and even as late as 1588 the royal navy only contributed thirty-four vessels to the 176 which routed the Armada 3 . But the 17th century witnessed a change. The cowardice and insubordination of 1 Anson, ii. 176. a Ibid. ii. 351. 3 Enc. Brit. art. Navy. v 322 CHAPTER X. the merchant captains and their crews in the Cadiz expedition of 1625, showed that trained men and special vessels were needed if the honour of the English flag was to be main- tained. At the same time the rapid development of naval architecture rendered merchant vessels of little use for actual fighting; men of war became a special class, and it was necessary to make large additions to the existing navy. At the present day, the ships which compose the royal navy are provided by the Crown, but in the event of a war, the Admiralty would have the power of engaging vessels suitable for transport, or other warlike purposes. APPENDIX A. A SUMMARY OF SOME OF THE MORE IMPORTANT CHARTERS, ASSIZES, AND STATUTES RELATING TO CONSTITUTIONAL HISTORY. Charter of Liberties, issued by Henry I at his coronation at London, August, i ioo. Consists of fourteen Articles, on which Magna Carta (p. 15) is mainly founded. 1. The Church to be free; and all evil customs to be abolished. (See Magna Carta, Article I.) 2. Reliefs to be just and lawful, both to the King's barons, and to his barons' men. {M. C. 2.) 3. Barons, or other of the King's men, to give their daughters in marriage to whom they please, except to an enemy of the King. Widows not to be given in marriage against their will. (M. C. 8.) 4. The guardian of the land and children of a deceased baron to be the wife, or some other of the relatives who should be so more justly; and the tenants-in- chief to act similarly towards the children and wives of their men. 5. The common mintage, not existing in the time of Edward the Confessor, henceforward forbidden. Any coiner, or other person, found with false money to be brought to justice (p. 181). 6. All pleas and debts, owed to William II, are remitted, 'except the King's just ferms, and those which had been agreed upon for the inheritances of others, or for those things which more justly con- cerned others.' 7. Testamentary disposition not to be interfered with ; the property of an intestate to be divided ' by his wife, or children, or relatives, or lawful men, as shall seem to them best.' (M. C. 27.) 8. Fines for forfeiture, treason, and felony are to be exacted in proportion to the crime, and not at the King's mercy, as in the days of the Conqueror and of Rufus. (M. C. 20.) 9. Murders committed before the King's coronation are pardoned ; those committed since, to be punished according to the law of Edward the Confessor. 10. The King retains, with the common consent of the barons, those forests which his father held. 11. Holders of land by knight- service have their demesne arable land free from taxes, but they must in return equip themselves well with chargers and weapons for the King's service, and for the defence of his realm. V 2 324 APPENDIX A. 12. The King's peace to be kept henceforward throughout the country. 13. The law of Edward is given back, together with those amend- ments made by William I with the consent of his barons. 14. Any one who has taken any of the King's or any one's posses- sions, after the death of William II, to make full restitution under heavy penalties. First Charter of Stephen ; probably at his coronation, Dec. 26, "35- Confirms all the liberties, and good laws, of Henry I, and Edward the Confessor, and forbids any interference with them. Second Charter of Stephen, issued at Oxford, n 36. Church. Simony is forbidden. Jurisdiction over ecclesiastics to be in the hands of the Bishop ; dignities, and customs of the Church to remain inviolate ; possessions, and tenures of the Church confirmed. Ecclesiastics to be allowed to devise their goods by will ; if they die intestate, their property to be distributed as seems good to the Church. Vacant sees to be in the custody of clergy, or honest men of the same Church, until a pastor is appointed. Forests made by William I and William II retained, those made by Henry given up (p. 184). All exactions to be done away with ; good laws, and ancient and just customs confirmed, saving the Kings royal and just dignity. Charter of Henry II, issued at his coronation, Dec. n 54. Confirms the Charter of Henry I, and abolishes all bad customs done away with by that King. Constitutions of Clarendon, issued at Clarendon, near Salisbury, January, 1 164 ; annulled after Beckefs death, 1 1 70. Summary : 1. Disputes as to advowsons and presentations to be decided in the King's Court. 2. Churches in the King's fee not to be granted in perpetuity without his consent 3. Accused clerks to be brought before the King's Court, which would then decide whether they should be tried there or handed over to the spiritual court. In the latter case the Justices would send an officer to watch the proceedings, and if the accused were found guilty, the Church must not protect him. 4. No Clerk to leave the kingdom without the King's licence, md without giving a pledge not to prejudice the interests of the kingdom. 6. If a powerful layman is charged, and no one dare accuse him, the Sheriff, at the Bishop's request, is to empanel twelve lawful men to give testimony according to their conscience. 7. No tenant-in-chief, or King's officer, to be excommunicated without the King's leave. 8. Appeals to lie from Archdeacon to Bishop, from Bishop to Arch- bishop, and finally to the King. 9. Disputes between the Clergy and Laity, as to the tenure of land, to be decided by the Chief Justice on the recognition of twelve lawful men. APPENDIX A. 325 10. Persons refusing to appear before the Ecclesiastical Court may be put under interdict, but not excommunicated until a royal officer had inquired into the case. 11. Clerical tenants-in-chief hold their lands as baronies subject to the usual obligations. They must take part in the judgements pro- nounced by the King's Court except in cases involving loss of life or limb. 12. The King to have the custody and revenues of vacant Sees. Elections to bishoprics to be made by the principal beneficed clergy of the Church in the King's Chapel, with the assent of the King, and the advice of the beneficed clergy of the realm. 14. The Church not to detain the chattels of those in the King's forfeiture. 15. The King's Court to have jurisdiction over all pleas of debts. 16. Sons of villeins not to be ordained without the consent of the lord. Assize of Clarendon, 1 166. Deals with questions of justice, and lays down directions for the Justices in Eyre, for the formation of juries, and the like. Twenty- one Articles. 1. Inquests to be held by twelve lawful men of each hundred, and by four lawful men of each township, under the direction of the Justices and Sheriff ; and all robbeis, murderers, thieves, and their haibourcrs, to be presented. 2. Criminals, so presented, to go to the ordeal of water. 4. If a judicial circuit is not imminent, notice is to be given to the nearest Justice of the capture of a criminal ; the Justices are to inform the Sheriff when they can hear the case : the latter is then to bring up the criminal and with him two lawful men of the hundred or town- ship where he was captured, who are to declare on oath the verdict of their district. 6. Sheriffs to receive criminals without delay. 7. Provides for the building of gaols. 8. All to come to the courts to make oath. No man to refuse on account of any liberty, court, or soc he may have. 9. All to lie in a frankpledge ; no franchise is to exclude the Sheriff. 10. In cities and towns, all who harbour strangers are to be respon- sible for them. 11. No one to obstruct the Sheriffs in the execution of their duty. 12. A man of ill repute possessed of stolen profits, if he has no surety, is to have no law, and is to be sent to the ordeal by water, if not already condemned by public report. 13. Statements of guilt made before lawful men, not to be withdrawn. 14. Men of ill repute to leave the country. 15. 16. No vagrant or stranger to lodge anywhere except in a town, and to remain there only one night, unless his horse be sick. 17. Sheriffs to take criminals escaped from other counties, when warned of their offence. 18. Sheriffs to keep a list of those who have fled their counties. 19. Sheriffs to appear, as soon as summoned, with their counties before the Justices Itinerant. 20. None of the common people to be received as a monk, until the circumstances of his case are known. 326 APPENDIX A. 21. The heretics, excommunicated at Oxford, are not to be received by any one. 22. This assize to hold good during the King's pleasure. Inquest of Sheriffs, 1170 (p. 250). 1. Inquiry to be made from the Sheriffs, and their bailiffs, how much they have received from every hundred, and township, and from every man ; and what they have received by the judgement of the county, or hundred, and what without. 2. Inquiry to be made as to what the prelates and magnates have received for their lands from each of their hundreds, townships, and men. 3. Inquiry to be made from those who have had the custody of other bailiwicks of the King. 4. And from the King's bailiffs, what has been given them, and what they have demanded. 5. The chattels of those who have fled, or been convicted by the Assize of Clarendon, to be inquired into, and enrolled. And inquest to be made whether any one has been wrongfully accused for gain or malice, or whether any criminal has been released for money. 6. Inquiry to be made into the aids for marrying the King's daughter, what was paid, and to whom, from each hundred and township. 7. Inquiry to be made into the receipts of the foresters and bailiffs, and into the forfeitures of the forests. 8. All accused persons to give bail for their appearance, or to go to prison. 9. Inquiry as to whether the Sheriffs, or bailiffs, have received any- thing as hushmoney. 10. Or whether any one has been released for money, or through favour. ii. A list to be made of those who owe homage, and have not paid it. 12. Inquiry to be made as to the state of repair of the buildings etc. on the King's demesne. 13. Sheriffs and bailiffs, to swear that they will lawfully attend to the inquest to be made on the barons' lands. Assize of Northampton, 11 76. Contains thirteen Articles, concerned chiefly with the regulation of the Judicial Courts and business, and with the maintenance of peace. 1. Any one presented to the Justices by the oath of twelve knights of the hundred, or of twelve lawful freemen, for murder, robbery, arson, or forgery, is to go to the ordeal of water, and to lose a foot if convicted. If he be acquitted, he may remain in the country on finding sureties, unless he had been charged with murder, or other disgraceful felony, in which case he is to quit the realm within forty days. 2. No one in any borough or town is to give lodging to a stranger for more than one night without good reason. When the stranger goes, he must go openly. 3. Any one taken in the act of committing a felony, and confessing his guilt, cannot plead not guilty before the Justices. 4. When a freeholder dies, his heirs are to remain in the same possession as their father held at the day of his death. If the lord of APPENDIX A. 327 the fee disputes the seisin, a recognition shall be taken by twelve lawful men. (Mort d 'ancestor, p. 87.) 5. The Justices shall also cause a recognition to be made concerning dispossessions. {Novel disseisin, p. 87.) 6. Fealty to be taken from earls, barons, knights, free tenants, and even rustics, who wish to remain in the country. Homage to be paid to the King by all who have not already done so. 7. All dues and rights, which belong to the King, are to be exacted by the Justices from half a knight's fee and under, unless the matter is too great to be settled without the King. The Judges are to do all they can for the advantage of the King. 8. They are to provide for the demolition of castles, under penalty of being proceeded against. 9. To make inquiry concerning escheats, churches, and land in the gift of the King. 10. The King's bailiffs are to answer to the Exchequer for all perquisites, except those belonging to the Sheriffs. 11. Inquiries to be made as to the Keepers of Castles. 1 2. A thief is to be given into the Sheriff's custody, when caught, or to the nearest Castellan if the Sheriff is absent. 13. People who have quitted the realm to be sought for, and if they refuse to return, and stand their trial in the King's Court, to be outlawed. Assize of Arms, 1181. 1. 2. 3. Regulate the arms to be provided, according to position and income. 4. Fealty to be sworn to, and the arms kept for the service of, the King. No arms to be parted with on any pretext. 5. Arms on the death of a possessor to go to the heir; if a minor, to be kept in ward for him. 6. No one need keep more arms than are required by this Assize. 7. No Jew to keep arms. 8. No one to take arms out of England, except with the King's leave. 9. The assessment to be made by lawful knights, or free and lawful men of hundreds and towns. 1 2. No one shall buy or sell any ships out of England. No timber to be taken out of England (p. 319). Assize of Woodstock (or the Forest), 1184. 1. No one to trespass on the King's hunting, or forests, under the penalties laid down by Henry I. 2. No one to have bows, arrows, or dogs in the King's forests without a warrant. 3. Nothing except firewood (estoveria), to be taken from the woods, and that with the cognizance of the forester. 4. Provides for the appointment of qualified and proper foresters. 5. The royal foresters to see that the woods of persons whose property lay within the royal forests are not destroyed. 6. Foresters to take an oath that they will keep the assize and not encroach on forest privileges granted to other persons by the King. 7. When the King has hunting in a county, twelve knights to be appointed to keep his venison and vert (p. 64), and four knights for 3 28 APPENDIX A. agisting the woods {i.e. turning cattle into them), and for receiving pannage {i. e. privilege of feeding swine). 9. Clerics not to trespass with impunity. 10. The King's clearances in the forests, and his encroachments and wastes, to be viewed every third year. 11. Attendance at the Forest Court necessary (modified by Magna Carta, Art. 44. 13. Every one of the age of twelve years within the jurisdiction of the hunting shall swear to keep peace. , 14. Expeditation to be continued where it has been the custom. 15. No tanner, or leather bleacher, to live in the King's forests outside a town. 16. No hunting to take place at night. Magna Carta. Chief Clauses, with references to corresponding Clauses in the Articles of the Barons. 1. Church to be free (p. 279). 2. Reliefs to be customary, i.e. £100 for an earl, or baron, £5 for a knight (p. 212). A. B., 1. 3. 4. 5. 6. Remedy abuses of wardship and marriage (p. 213). A. 7. 8. Widows to have their dowers, and not to be forced to marry against their will. A. B., 4, 17. 9. 10. 11. Alleviate treatment of debtors. A. B., 5. 1 2. No scutage or aid to be imposed, unless per commune consilium regni, except to ransom the King's person, to make his eldest son a knight, and to marry his eldest daughter once ; these aids must be reasonable, and 'so shall the aids of the City of London be' (p. 186). A. B., 32. 13. London, and all towns, to have their ancient liberties and customs (p. 268). A. B., 32. 14. 'And to take the common council of the realm about assessing an aid, other than in the three cases above mentioned, or about assessing a scutage, we will cause archbishops, bishops, abbots, earls, and greater barons to be summoned each severally by our letters, and moreover, we will cause all those who hold of us in capite to be summoned by a general summons through our sheriffs and bailiffs, on a certain day, at least forty days distant, and to a certain place. And in all letters of summons we will declare the cause of summons, and when summons has been made, the business assigned for the day shall proceed, according to the advice of those present, although not all who were summoned come.' 15. No baron to take any aid from his men except the three usual ones. A. /?., 6. 16. Services for a knight's fee to be only what is due. A. B., 7. 17. Common Pleas shall not follow our Court, but be held in some fixed place (p. 59). A. B., 8. 18. 19. The King, or in his absence the Justiciar, will send to each county four times yearly, two Justices, who with four knights elected by the county, are to hold assizes of Novel Disseisin, Mort d' Ancestor, and Darrein Presentment (pp. 87, 253). A. B., 8. 20. 21. 22. Fines to be proportionate to the offence, and imposed APPENDIX A. 329 according to the oath of honest men of the neighbourhood. No amercement to touch the tenement of a free man, the merchandise of a merchant, or the wainage of a villein ; earls and barons to be amerced by their equals. A. B., 9, 10. 23. No one to be compelled to make bridges, unless it is his duty. A. B., 11. 24. No Sheriff, Constable, Coroners, or other bailiffs of the King, shall hold pleas of the Crown. {This goes further than A. B. 14, which asks that no Sheriff shall meddle with pleas of the Crown without the Coroners.) 25. All counties, hundreds, and tithings to be at the old ferm, saving the King's demesne. A. B., 14. 26. On the death of a debtor to the King, the Sheriff may seize chattels to the value of the debt. A. B., 15. 27. Property of intestates to be distributed by the next of kin, under the supervision of the Church. A. B., 16. 28. No constable, or bailiff of the King, to take any corn, or chattels, without paying at once (p. 179). A. B., 18. 29. Knights on service to be free from duty of castle ward. A. B., 19. 30. No Sheriff, or bailiff, to impress conveyances for the King's service except with the owner's consent (p. 179). A. B., 20. 31. No wood to be taken for the King's use without consent of the owner. A. B., 21. 32. The lands of those convicted of felony to be held by the Crown for a year and a day only. A. B. y 22. 33. Wears {Kydelli), to be abolished, except on the coasts. A. B., 23. 34. The writ Praecipe shall not be issued so that a freeman shall lose his right of jurisdiction. A. B., 24. 35. Weights and measures to be uniform. A. /?., 12. 36. Nothing shall be given, or taken, for the future for the Writ of Inquisition of life or limb, but it shall be freely granted, and not denied (p. 240). A. B. t 26. 37. The wardship of land held of an intermediate lord by a tenant who holds other land of the King, shall not belong to the King. A. B. t 37. 38. No one to be brought to trial on the bare word of a bailiff, with- out trustworthy witnesses. A. B., 28. 39. No freeman shall be seized, or imprisoned, or dispossessed (of his land), or outlawed, or exiled, or in any way injured, 'nor will we go against him, or send ' v a force) against him, except by the lawful judgement of his equals, or by the law of the land (pp. 239 sq.). A. B., 29. 40. 'To no one will we sell, or deny, or delay, right of justice. A. B., 30. 41. All merchants to have a safe conduct throughout the country, to buy and sell without any evil tolls according to ancient and lawful customs; in time of war foreign merchants to be detained until it is seen how English merchants are treated by the enemy (p. 232). A. B., 31. 42. Freedom of entering, and quitting, the realm allowed, except in war time. A. B., 33. 43. The tenants of escheated baronies to pay the same relief as if the baronies were still held of the barons. A B., 36. 33° APPENDIX A. 44. Persons dwelling outside the forests need not attend the forest courts, unless impleaded (p. 184). A. B., 39. 45. Constables, Sheriffs, and bailiffs to be appointed from those who know the law, and will keep it. A. 2?., 42. 46. Barons who have founded abbeys to have the custody of them, when vacant. A. B., 43. 47. All forests afforested in John's reign to be disafforested (p. 184V A. B., 47. 48. All evil customs connected with forests to be inquired into by twelve sworn knights elected in each county, and to be abolished (p. 184). A.B.,3 9 . 49. All hostages, and title deeds, delivered to the King as security of peace, or of faithful service, to be given back. A. B., 38. 50. Certain individuals to be removed from their bailiwicks. A.B., 40. 51. All foreigners and mercenaries to quit the realm (p. 312). A.B.,41. 5 2. Restitution to be made to those unlawfully dispossessed ; disputed cases to be settled by twenty-five barons. A. B., 25. 53. Justice to be done in disafforesting, after the King's return from the Crusade. 54. No one shall be seized, or imprisoned, on account of the appeal of a woman about the death of any one but her husband. 55. Unjust fines to be remitted. A. B., 37. 56. £7. 58. Justice to be done to the Welsh, in cases where they have been ill-used. A. B„ 44, 45. 59. The rights of Alexander of Scotland to be restored. A. B., 46. 60. All the aforesaid customs and liberties to be observed by the Clergy and Laity to their retainers. A. B., 4S. 61. Provides for the proper execution of the provisions of the Charter by a Committee of twenty-five barons. A. B., 49. 62. Announces the reconciliation between the King and people. 63. The English Church to be free, and every one in the kingdom to have and hold all the aforesaid liberties, rights, and concessions. Provisions of Oxford, 1258. The Church to be reformed as the Council see time or place. The Justiciar, Treasurer, and Chancellor to be appointed for a year, and at the end to give an account of their proceedings, while in office, to the King and Council (p. 47). The Chancellor is to seal nothing by the sole will of the King. The salaries of the Judges to be raised, to prevent their taking bribes. The Sheriffs to be loyal and substantial, to hold office for a year, and to give an account of their period of office (pp. 249^. Magna Carta to be kept, and no tallage taken except in accordance with it. Three Parliaments to be held annually. The scheme of Government is drawn out (p. 17). Provisions of "Westminster, 1259. Re-enacted 1262, 1264, and embodied as the Statute of Marlborough, 1267. Twenty-four Articles ; chief of which are — I. Limits the right to exact suit and service, where it is not due. APPENDIX A. 331 2. If an estate is liable for one suit only, and is divided amongst several heirs, the eldest shall discharge the suit, the others paying their share. 3. Limits the right of distraint. 4. Exempts magnates from attendance at the Sheriffs tourn, which is to be held as was customary (p. 71). 7. Regulates Darrein Presentment, and the plea quare inipedit, about vacant churches. 8. Exemption to knights from serving on juries. 9. 10. Check abuse of wardship, and succession. 11. Limits the right of feudal lords to distrain. 12. Extends to socage tenants certain advantages of military tenants with regard to wardship and marriage. 13. Amercement, for default of common summons, only to be made by the Justiciar, and Itinerant Justice. 14. Religious persons not to enter on the fee of any one without the leave of the lord from whom the estate is immediately held. See Mort- main Statute (p. 280). 16. Pleas of false judgement made in the court of his tenants, to be reserved for the King. 18. Distraint on freehold requires the royal writ. 19. 20. Against fraudulent bailiffs and farmers. 22. Death by misadventure shall not come before Itinerant Justices, but only cases of persons feloniously killed. Dictum de Kenilworth, 1266. Forty -one Articles. 1. The King to freely exercise his dominion, authority, and royal power, without any one's hindrance or contradiction, through which, contrary to the approved rights, laws, and customs of the realm long established, the dignity of the King may be assailed. 2. 3. The King to respect all Liberties and Charters and to appoint fit persons to administer justice. 4. Grants, made spontaneously by the King, to be kept ; liberties and customs of the Church to be respected. 5. The rebels, who come into the King's peace within forty days, to have an amnesty. 6. Act of Resumption. 7. Provisions of Oxford, and writings, obligations, and instruments consequent thereon, to be annulled. 10. Against purveyance (p. 179). 11. Asks for the reform of London. 12. Rebels to be able to redeem their lands. 23. Twelve Commissioners to be appointed to execute these Pro- visions, which are to be firmly observed and maintained by the King and his heirs. 37. The King's peace to be firmly kept. The other Articles are mainly Articles of reconciliation and amnesty. Statute of Marlborough, 1267. Is simply the Provisions of Westminster, 1259, in Statute form. Statute of "Westminster I, 1275 (3 Ed. I). Fifty one Clauses, chiefly — Regulating feudal incidents such as aids and reliefs ; $$2 APPENDIX A. Checking feudal abuses ; Providing for the freedom of Elections ; and Regulating judicial matters. Statute of Mortmain (de viris religiosis), 1279 (7 Ed. I, c. 2). Provides that no ' religious ' person, or any other, shall presume to buy or sell any lands or tenements, or under pretence of a gift, or term, or any other title whatsoever, receive from any one, or in any manner, either by device or craft, appropriate to himself lands or tenements so that they come in any way into Mortmain {i.e. the dead hand of a Corporation (p. 269 note), under penalty of forfeiture of the same. Its germ may be seen in the 43rd Article of the second re-issue of the Charter, 121 7, and in the 14th Article of the Provisions of Westminster. Statute of "Westminster II, June, 1285 (de donis conditionalibus , p. 214), 13 Ed. I. Allows entail, regulates the judicial system, providing that Justices of Assize go on circuit to every county twice or three times a year, and confirms a good deal of previous legislation. Statute of Winchester, Oct. 1285. 1. Forbids the compounding, or concealment, of felonies. 2. Districts, in which felonies are committed, are to produce the bodies of the culprits within forty days, or be liable. 4. Regulates the watch and ward in towns ; strangers to be questioned, and, if suspicious, detained ; if they will not conform to this rule, the hue and cry to be raised. 5. High roads to be cleared of trees and bushes up to two hundred feet on either side, so that robbers may not lurk therein. 6. Every man to have in his house ■ aimour to keep the peace, accord- ing to the ancient assize.' Two constables to hold a view of armour twice a year. Statute of Westminster III, 1290 (quia emptores). Checks subinfeudation (p. 214), and provides 'that henceforth it shall be lawful for any freeman to sell at will his land tenement, or any part of it ; provided that the receiver of the fee shall hold that land or tenement from the same chief lord, and on the same conditions of service, and the same customs, as the alienor of the fee formerly held it.' Confirmation of the Charters, 1297. 1. Magna Carta and the Charter of the Forest, are to be kept in every point, and published, together with the Confirmation, throughout the kingdom. 2. Any judgement given contrary to these Charters to be void. 3. The Charters to be kept in the Cathedrals, and read twice a year. 4. Those who infringe the Charters to be excommunicated. 5. The aids, tasks, and prises obtained from the people are not to be a precedent (p. 18). 6. No such aids, or prises, to be taken henceforth except by the common consent of the realm, and for the common profit, except the ancient aids, and the due and customary prises. APPENDIX A. 333 7. The Maletote of 40/. on the sack of wool not to be exacted with- out the common assent, saving the customs of wool, skins, and leather already granted by the commonalty. Petition of Bight, 1628 (3 Car. I, c 1). Eleven Articles. 1. Quotes the De tallagio non concedendo (p. 19) and the Act of 25 Ed. Ill as Statutes forbidding the King to exact tallages or loans without the consent of Parliament. 2. Complains of commissions recently issued to levy money, and of the punishment of imprisonment being inflicted on those refusing to pay, in defiance of the Statute. 3. Quotes Magna Carta. 4. Quotes 28 Ed. Ill, on the liberty of the subject. 5. Complains that these Statutes have been violated and that on many writs of Habeas Corpus (p. 242) no cause of imprisonment has been shown except '■your Majesty's special command.'' 6. Complains of the practice of billeting soldiers and sailors. 7. 8. 9. Complain of martial law being enforced against private individuals contrary to 25 Ed. Ill (p. 315). 10. 11. Sum up the grievances of benevolences, illegal taxation, illegal imprisonment, billeting, and martial law, and pray for relief. This ' Petition ' became a Statute by the assent of the King, ' Soit droit fait come est desir£? Habeas Corpus Act, 1679 (31 Car. II, c. 2). Twenty-one Articles. 2. Mentions the frequency of illegal imprisonment, and the delay in issuing Habeas Corpus writs. 2. Provides that, except in cases of commitment for treason (pp. 3-7), or felony, gaolers must, within three days of the reception of the writ, produce the prisoner ■ before the Lord Chancellor, or Lord Keeper of the Great Seal of England for the time being, or the Judges, or Barons of the Court from whence the said writ shall issue ' ; if the Court is more than twenty miles distant, the time is extended to ten days, and if more than a hundred miles distant, to twenty days. 5. No gaoler may plead ignorance; if a commitment is made during the vacation time, an appeal may be made to the Chancellor, or one of the Judges, who shall issue a writ returnable within two days, and shall take such sureties for the prisoner's appearance as he may deem advisable, unless the prisoner is ' detained upon a legal process, order, or warrant out of some Court that hath jurisdiction of criminal matters,' or is committed for an unbailable offence. 4. No Habeas Corpus to be granted in vacation time to persons neg- lecting to demand one for two terms. 5. Gaolers refusing to make returns, or to give a copy of the warrant of commitment, within six hours after it is demanded, to forfeit £100 for the first offence, and £200 for the second. 6. No one set at large upon any Habeas Corpus to be re-committed for the same offence, except by the Court having jurisdiction of the cause, under a penalty of £500. 334 APPENDIX A. 7. Persons committed for high treason, or felony, may be liberated on bail, if not indicted in the second term of their commitment. 8. The Act not to apply to cases of debt. 9. No one to be removed from one prison or gaol to another except by Habeas c orpus, or some other legal writ. 10. Habeas Corpus may be obtained from the Courts of Chancery, Exchequer, King's Bench, or Common Pleas, and must not be denied to any one, under a penalty of £500. 11. A writ of Habeas Corpus may run in any County Palatine (p. 219), Cinque Port (p. 220), or other privileged place, and into the Channel Isles. 12. 13. 14. 15. 16. All imprisonment beyond the seas declared illegal, except when prayed for. 1 7. All offences against the Act must be sued against within two years. 18. 19. Provide against persons avoiding the Assizes by claiming their Habeas Corpus. 21. The Act not to apply to persons committed on reasonable sus- picion of petty treason and felony. Bill of Bights, 1689 (1 Wm. & Mar. sess. 2, c. 2). 1. After rehearsing the various illegal acts whereby James II abdi- cated the government, and the throne was declared void, declares the following illegal : — (i.) The exercise of the suspending power, without the consent of Parliament (p. 172). (ii.) The dispensing power, • as it hath been assumed and exercised of late' (p. 171). (iii.) The Court of Commissioners for ecclesiastical causes (p. 55). (iv.) Levying money by pretence of prerogative, without grant of Parliament. (v.) Interference with the presentation of petitions to the King. (See Case of the Seven Bishops, App. B.) (vi.) Raising, or maintaining, a Standing Army without the consent of Parliament (p. 315). It also enacted — (vii.) That Protestants may keep suitable arms for their defence. (viii.) That the election of Members of Parliament should be free. (ix.) That freedom of speech in proceedings in Parliament shall not be questioned, except in Parliament. (x.) That excessive bail, fines, and punishments are illegal. (xi.) That jurors must be duly empanelled, and in cases of High Treason must be freeholders. (xii.) That grants of fines and forfeitures, before conviction, are void. (xiii.) And that ' for the redress of grievances, and the amending, strengthening, and preserving of the laws, Parliament ought to be held frequently. 2. It settles the succession (i.) on William and Mary, and the heirs of the body of Mary ; (ii.) in default of such issue, on the Princess Anne of Denmark, and the heirs of her body, and, failing them, on the heirs ol the body of William III. 3. It substitutes new oaths to be taken ' by all persons of whom the oaths of allegiance and supremacy might be required by law.' 4. Recites the acceptance of the Crown on these conditions by William and Mary. APPENDIX A. 335 5. Parliament to sit to provide for 'the settlement of the religion, laws, and liberties of this kingdom.' 6. All the clauses in the Declaration of Right are ' the true, ancient, and indubitable rights and liberties of the people of this realm.' 7. James II ' having abdicated the government,' William and Mary are King and Queen. 9. Excludes from the succession those who hold communion with the Church of Rome, profess the Popish religion, or marry a Papist. 10. The Sovereign to assent, on succession, to the Act, 13 Car. II, for disabling Papists from sitting in either House of Parliament. 12. Declares the invalidity of dispensation by non obstante. Act of Settlement, 1701 (12 & 13 Wm. Ill, c. 2). 1. After referring to the Bill of Rights, which excluded Roman Catholics from the succession, and declared that if a Papist obtained the Crown, ' the people of these realms shall be, and are thereby, absolved of their allegiance,' the Act settled the Crown on the Electress Sophia, and the heirs of her body being Protestants. 2. Excludes all persons holding communion with the Church of Rome, professing the Popish religion, or marrying a Papist. 3. Provides that, to secure the religion, laws, and liberties of the country — (i.) The Sovereign shall join in communion with the Church of England as by law established. (ii.) No war shall be undertaken in defence of any territories not belonging to the Crown of England, except with the consent of Parliament. (iii.) The Sovereign not to quit Great Britain and Ireland without the consent of Parliament. (iv.) All matters cognizable in the Privy Council to be transacted there, and resolutions to be signed by the councillors advising the same (P. 45)- (v.) Aliens (although naturalized, or denizens, except they are born of English parents, declared incapable of becoming Privy Councillors, Members of Parliament, of holding any civil or military post of trust, or of holding lands from the Crown. (vi.) No placeman, or pensioner, to sit in Parliament (p. 143). (vii.) Judges to hold office qnamdiu se bene gesserint. (viii.) No pardon under the Great Seal to be pleadable to an im- peachment by the Commons p. 155). 4. All laws for securing the established religion, and the liberties of the people, to be confirmed and ratified. The Protestant succession was confirmed, and further secured, on various occasions, e.g. 1702, 13 & 14 Wm. Ill, c. 6; 1706, 4 & 5 Anne, c. 20 ; 1707, 6 Anne, c. 41 ; and 1709, 8 Anne, c. 15. Kiot Act, 1715 (1 Geo. I, st. 2, c. 5.), (p. 5). Assemblies of Twelve, or more, rioters not dispersing within one hour of being ordered by a magistrate to do so, by Proclamation in the King's name, shall be guilty of felony, and if killed whilst being dispersed by force, those killing them shall not be guilty of murder. APPENDIX B. SOME OF THE MORE IMPORTANT CASES IN CONSTITUTIONAL HISTORY. Ashby v. "White, 1 702-1 704 (p. 113). Ashby, an elector of Aylesbury, brought an action against White, a returning officer, for refusing his vote, and obtained a verdict ; this decision was leversed in the Court of Queen's Bench, but confirmed by the Lords, Jan., 1704. The action of the Lords led to a quarrel with the Commons, who declared that the decision of the rights of electors lay with the Lower House. The dispute was ended for a time by a prorogation, though the question remained undecided. {See Case of the Aylesbury Men.) Aylesbury Men, Case of the, 1703- 1704 (p. 11 3). On the decision in Ashby v. White {above) being given, five Aylesbury men brought actions against the returning officers, and were committed by the Commons for breach of privilege. A writ of error to the Lords was refused by the Commons, and the Up} er House re- quested the Queen to interfere. A prorogation ensued, and the Ayles- bury men, continuing their action, won their case against the returning officers. Barnardiston v. Soame, 1674 (p. 112). An action brought against Soame, Sheriff of Suffolk, for making a double return in the County election ; the plaintiff, B 'am ardis' 'on, being one of those returned. Barnardiston at first obtained a verdict, but this was set aside by the Exchequer Chamber, and by the House of Lords. By an Act of 1679 double returns were declared illegal, but they have nevertheless been sanctioned by subsequent parliamentary usage. Bats's Case, or Case of Impositions, 1606 (pp. 19S 199). John Bate, a Turkey merchant, was summoned before the Exchequer Court for refusing to pay an imposition of $s. 6d. a hundredweight on currants. It was held that the King had power to impose the tax because he exercised complete control over foreign trade, and because his absolute, as opposed to his ordinary power, could not be limited by law. APPENDIX B. 33J Bradlaugh v. Gosset, 1884 (p. 140). An action brought by Mr. Bradlaugh, Member for Northampton, against Sir Ralph Gosset, Sergeant at Arms, for excluding him from the House, in consequence of a resolution preventing his taking the oath in accordance with the Parliamentary Oaths Act of 1866 (29 & 30 Vict. c. 19). It was held that the House had the power of exclusion, and therefore had the power of enforcing their action. Burdett v. Abbott, 1810 (p. 119). Brought for trespass by Sir Francis Burdett against the Speaker, who had issued a warrant against him for contempt ; in the execution of this warrant, the plaintiff's house was broken into. The trespass was held to be justifiable, as the power of the House to commit for contempt was undoubted. Bushell's Case, 1670 (p. 86). Two Quakers, Mead and Penn, tried under the Conventicle Act (p. 291), were acquitted, contrary to the direction of the Recorder of London. The jury were fined for contempt, and Bushell, their foreman, in default of payment, was imprisoned : on his suing out his writ of Habeas Corpus, Lord Chief Justice Vaughan held that finding a verdict 'against full and manifest evidence, and against the direction of the Court,' was not sufficient ground for imprisonment. By this decision, the immunity of juries was established. Butler v. Crouch, 156S (p. 228\ Involved a question of Villenage. Butler having entered on the lands of Crouch, as being his villein was ejected by the defendant, in whose favour a decision was given. Calvin's Case, or Case of the Postnati, 1608 (p. 236). James I wished to obtain a decision as to whether Scotchmen born after 1603 {postnati) were naturalized Englishmen. An action was therefore brought in the name of Robert Calvin or Colvill, born in 1605, against two persons who were alleged to have deprived him of his estates. As an alien could not hold English land the decision of the Exchequer Chamber in Calvin's favour, was practically a decision in favour of the naturalization of the Postnati. Commendams, Case of, 16 16 (pp. 27, 89). An action was brought against Neile, Bishop of Lichfield, for holding a living in commendam {i.e. together with his bishopric) , by two persons who claimed the presentation to the living. James I, thereupon, ordered the Judges not to proceed in the case until he had consulted with them ; they disobeyed, and were severely reprimanded. All made submission but Chief Justice Coke, who was in consequence dismissed by the King. Damaree and Purchase, Case of, 17 10 (p. 4). Daniel Damaree, and George Purchase, having participated in a riot, arising out of the impeachment of Dr. Sacheverell, were convicted of treason ; the decision being that their action in setting fire to certain meeting houses, was proof presumptive of a design to burn down all meeting houses, and was therefore an overt act of levying war. 338 APPENDIX B. Darnel's Case, 1627 (p. 24O. Sir Thomas Darnel, being imprisoned for refusing to give a forced loan to the King, sued out his writ of Habeas Corpus. The Warden of the Fleet returned that he was imprisoned ' by the special command of the King' Counsel for the defendant argued that a specific charge ought to be named in the warrant, while the Crown lawyers maintained that reasons of State often made it inexpedient to specify the charge on which a political prisoner was detained. The judges declined to admit Darnel to bail, but would not face the broad issue. Eliot's Case, 1629 (p. 108). Sir John Eliot, Denzil Holies, and Benjamin Valentine were im- prisoned by the Court of King's Bench for words spoken in the Commons, the judges urging that the Act of 151 2 (see Strode's case) was merely a private Act. These proceedings were declared illegal in 1641, and the decision was formally reversed by the Lords in 1668. Ferrer's Case, 1543 (p. 104). George Ferrers, a member of the Commons, arrested as surety for a debt, was released by the Sergeant at Arms, acting under the authority of the House, which also committed to prison all those con- cerned in the arrest. The Commons, refusing a Writ of Privilege offered them by the Lord Chancellor, established (1) their right to demand the delivery of a Member, (2; their right to commit others to prison. Godden v. Hales, 1686 (p. 172). A collusive action brought by a servant of Sir Edward Hales against his master, for breaking the provisions of the Test Act. Sir Edward pleaded the King's dispensation, which was held to be a good defence. Hampden's Case, or Case of Ship-money, 1637 (pp. 199-200). John Hampden refused to pay ship money, on the ground that it was an illegal tax. The case was tried in the Court of Exchequer. Counsel for the defence contended that the Crown could not raise taxes without the consent of Parliament. The Crown lawyers laid down that it was the King's duty to defend the country and he must not be hampered by Acts of Parliament. Seven Judges decided for the Crown, five for Hampden. Haxey's Case, 1397 (pp. 106, T07). Sir Thomas Haxey, a Member of Parliament, was imprisoned and found guilty of treason for introducing a Bill to regulate the expenses of the Royal Household. He was subsequently pardoned, and his sentence was annulled by Richard II and again reversed in 1399, the privilege of freedom of discussion being thus recognized. Murray's Case, 1751 (p. 118). Alexander Murray, charged by the Returning Officer of Westminster with insulting him in the execution of his duty, was sent to Newgate, and ordered to receive his sentence on his knees. He refused, and sued out his writ of Habeas Corptis, but the Judges declined to admit him to bail, holding that they had no power to judge of the privileges of the House, and that committal for contempt of the House of Commons was sufficient. APPENDIX B. 339 Peacham's Case, 1615 (p. 4). In 1615 Edmund Peacham, a clergyman, was convicted of high treason for having written a sermon which made libellous reflections on the Crown and the government, but which had been neither printed nor pub- lished. Pigg v. Caley, 1617 (p. 228). The last case in which villeinage was pleaded in a Court of Law. Pigg having brought an action against Caley for stealing his horse, Caley pleaded that Pigg was a villein regardant of a manor of which he was seized. Pigg declared that he was free, and the decision was in his favour. Proclamations, Case of, 1610 (p. 171). The Judges, headed by Lord Chief Justice Coke, decided that the King's Proclamation could create no new offence, but merely admonish men to observe existing laws. Prohibitions, Case of, 1607 (p. 88). On James I attempting to assert the King's right to hear cases and to give judgment thereon, it was held by Chief Justice Coke that no such power was vested in the Sovereign, who, although he might sit in the Court of King's Bench, might not interfere with the course of Justice. Seven Bishops' Case, 1688 (p. 245). In 1688, James II commanded a Declaration of Indulgence to be read in all the Churches. Seven Bishops, viz. Archbishop Sancroft, Bishops Lloyd of St. Asaph, Trelawney of Bristol, Ken of Bath and Wells, Lake of Chichester, White of Peterborough, and Turner of Ely, drew up a petition against the Declaration, and were tried for a seditious libel, but acquitted. The Bishops not only possessed as subjects the right of petitioning the Crown, but, as Peers of Parliament, they had the right of individual access to the Sovereign. Shirley's Case, 1603-4 (P* io 5)- On Sir Thomas Shirley, a Member of the Commons, being im- prisoned for debt, his release was refused by the Warden of the Fleet, on the ground that, if the prisoner was set at liberty, his gaoler would become answerable for his debt. Shirley was, however, released at the King's request, and an Act was passed to the effect (1) that any gaoler releasing a Member of Parliament imprisoned for debt should not become liable to the creditor; (2) that the creditor might sue the Member when Parliament had ceased to sit. Shirley v. Fagg, 1675 (p. 120). Shirley having appealed to the Lords from a decision of Chancery in favour of Sir John Fagg, the Commons declared that the Lords had no appellate jurisdiction from the Courts of Equity. The dispute ended in the Lords retaining their right. Sidney's Case, 1683 (p. 4). In 1683, Algernon Sidney, being tried on a charge of high treason for having participated in the Rye House Plot, was convicted through the Z 2 340 APPENDIX B. admission, instead of a second witness, of a manuscript found in his house, which contained certain remarks of a treasonable nature. {See Peach-am's Case.) Skinner v. The East India Company, 1668 (p. 120). Skinner made a successful appeal to the Lords against the Company, who thereupon addressed a petition to the Commons. The latter denied that the Lords possessed original jurisdiction and a violent quarrel between the two Houses was the result, ending in a reconciliation at the instance of the King. The Lords have not exercised an original juris- diction in civil actions since this time. Smalley's Case, 1575 (P- io 5)- Smalley, the servant of Arthur Hall, a Member of the House of Commons, being imprisoned for debt, was released by the Serjeant at Arms. Subsequently, however, he was punished for having fraudulently obtained his release with the object of freeing himself from the obligation of the debt. Sommersett's Case, 1771. Sommersett, a slave, being brought to England, left his master, who thereupon detained him with the object of getting him conveyed abroad, and sold. A writ oi' Habeas Corpus being issued, it was decided by Lord Chief Justice Mansfield that slaves, land- ing in England, obtain their freedom, and cannot be compelled to leave the country. Stockdale v. Hansard, 1836-40 (pp. 119, 246). An action for libel was brought against Messrs. Hansard, the par- liamentary printers, for printing a report, by order of the Commons, in which a book by Stockdale was described as ' disgusting and obscene.' The defence was the order and privilege of. the Commons; the Court of Queen's Bench refused to admit this plea, and Lord Denman laid down that no one who published a parliamentary report containing a libel on any man, might plead the authority of the Lower House as a justification. The threatened collision between Parliament and the law courts was averted by the passing of an Act (3 & 4 Vict. c. 9), which provided that all proceedings against persons who had published reports under the authority of either House should be stayed on production of a certificate stating that such publication was sanctioned by Parliament. Strode* s Case, 151 2 (p. 107). Richard Strode, a Member of Parliament, was imprisoned by the Stannary Courts (p. 66), for having introduced a Bill to regulate the tin mines. Strode was released by Writ of Privilege, and an Act was passed declaring ' all suits and condemnations for a Bill, or speaking in any matter concerning the Parliament to be utterly void and of none effect.' (4 Hen. VIII, c. 8.) Thomas v. Sorrell, 1674 (P- J 7 2 )- An Act, 7 Ed. VI, 1553, forbade the sale of wine without a licence. James I having relaxed this Statute in favour of the Vintner's Company, of which Sorrell was a member, an action was brought by the plaintiff against the defendant for selling wine without a licence, but it was held APPENDIX B. 341 that James patent, granted non obstante any Act to the contrary, was valid. Thorpe's Case, 1453 (p. 104). Thomas Thorpe, Speaker of the Lower House, was imprisoned at the instance of the Duke of York. The Commons appealed to the Lords, who referred the matter to the Judges. The latter declared that Members of Parliament arrested on any charge except treason, felony, or breach of the peace, were usually allowed to discharge their parliamentary duties, but declined to adjudicate on the particular question before them. The Lords refused to release Thorpe, and the Commons were admonished to elect a new Speaker. Thorpe was subsequently released and the pro- ceedings were characterized as ' begot.en by the iniquity of the times.' Throckmorton's Case, 1554 (pp. 54. 86). Sir Nicholas Throckmorton was tried for high treason, and acquitted ; thereupon the jury were imprisoned, and heavily fined, by the Court of Star Chamber. "Wason v. "Walter, 1868 (pp. no, 246). An action was brought against the proprietor of the Times for publishing a parliamentary debate which contained passages reflecting on the plaintiff. The court decided that a newspaper was justified in publishing a faithful report of a parliamentary debate, with fair comments on the proceedings, even though the character of an individual were injuriously affected thereby. "Wilkes v. "Wood, 1 763 (p. 243). A general warrant had been issued against the authors, printers, and publishers of No. 45 of the North Briton, and under its authority forty- nine arrests had been made. The editor. Wilkes, brought an action against the messengers who had effected the arrests and the Secretaries of State who had authorised them. The court held that general warrants were illegal and awarded heavy damages to the plaintiff. Entick v. Carrington, 1765 (p. 243). In 1-762 Lord Halifax had issued a general search warrant empowering messengers to seize the person, books and papers of John Entick. When the question came before the law courts, Lord Camden wholly denied the legality of such warrants. INDEX In places where a subject has been more fully treated, the reference to the page or pages is placed first, minor references following in ordinary numerical sequence. Abbots, the, 124. Aberdeen, Lord, forms a coalition ministry, 150. Abhorrers, the, 147. Acton Burnell, the Statute of, 40. Admiral, the Lord High, 257-258, 65. 3 2 °> 32i. Admiralty, the Court of, 65. Admiralty, Lords of the, 258, 321, 322. Advertisements of Archbishop Parker, the, 290. Affirmation, 141. Aids, 211-212, 177. Aislabie, expelled the House, 118. Alcred, his deposition, 1 3. Aldermen, 268, 269, 270. Alfred, 3, 93, 162, 267, 306, 309, 319. Alien Act of 1793, the, 236. Alienation of land, the, 214-216. Aliens, 32, 138, 235. Allegiance, natural and local, 32 ; distinct from fealty and homage, 32 note 2 ; treason to withdraw subjects from (158 1), 32. Almon's case, 245. Almoner, the Lord High, 259. Alod, 205, 204 note 1. Amiens, Mise of, 17. Anglo-Saxon King, the, his position, 1 ; increase of his power, 1,2; as- sumes new titles, 2 ; treason to plot against his life, 3. Annates, 286. Anselm, 275, 276. Anti-Corn Law League, the, 194, 248. Anti -Slave Trade Association, the, 248. Appeal, Court of, 62 note, 63, 66, 89, 126. Appeal, Final Court of, in Eccle- siastical Cases, 295-296, 89. Appeals, Delegates of, 89, 295. Appellate Jurisdiction, 45, 66, 89, 90, 94, 126, 286, 295. 296. See Supreme Court of Judicature Act. Appropriation of Supply, 21, 115, 116. Archdeacon, the Court of the, 294. Arches, the Court of, 295. Areopagi ica, Milton's, 244. Argyll, the Duke of, 43. Armies, English, 305-319; based on the principles of (1) allegiance, 3°5-3°9 ; 0) homage, 309-311; (3) pay, 311-315- Arms, the Assize of, 327, 129, 184, 189, 196, 238, 351, 306, 307, 3", 3*9- Arms, the College of, 65. Army Act, the, 317. Arrest, freedom from, 103-106, 23. Arthur, Prince, 8. Articles of Grievance of 1309, the, 182, 191. Articles of War, 316, 317. Articuli Super Cartas (1300), 19, 59, 61, 179, 184, 252, 258. Arundel, the Earl of, (case of), 105. Ashby v. White, 336, 113, 119. Askew, Anne, racked, 81. 344 INDEX. Assize, Commission of, 253. Assize of Arms, the. See Arms. Assize, the Grand, 83. Assizes, legislation by, 168. Athelings, 222. Athelstan, 163, 181. Attachments, the Court of, 64. Attainder, Bill of, 157-158, 151, 153. Atwyll, John, (case of), 104. Audience, the Court of, 295. Audit of Accounts, 21, 23, 116, 117. Augmentation, the Court of, 57, 287. Augustine, 272. Auxilium Vicecomitis. See Sheriffs Aid. Aylesbury men, the, (case of), 113, 118, 120, 336. Bacon, Lord Chancellor, 152. Ballot, the, 146-147. Bangorian Controversy, the, 298, 299. Bank of England, the, 197. Bankrupts, 140. Bardi, the, 178. Barnardiston v. Soame, 112, 336. Baro, meaning of, 72 note. Baron, the Court, 72. Barons, the Greater, 121 and note 3, 224; meaning of the term, 124, 224 ; their relations with the Crown, 224-227; articles of the (1215), 226, 238. Baronets, 178. Barones Scaccarii, 58. Barony, tenure by, 121, 122; by writ, 123. Barre, Colonel, dismissed, 109. Bairow, 245. Basset, Ralph, 77. Bastwick, 79, 244. Bale's case, 198-199, 336. Beauchamp of Holt, Sir John, 123. Beaufort, Cardinal, 39 note 1, 285. Bee, the compromise of, 276. Becket, quarrels with Henry II about the Sheriffs Aid, 185, 277. Bede, 33. Bedford, Duke of, appointed regent by Parliament, 30, 37. Belesme, Robert of, 225. Bell, Mr., 107. Benefit of Clergy, 81,82. Benevolences, 200-201, 24, 186. Beresford, Sir Simon de, (case of), 156. Bigod, Roger, 18. Billeting of soldiers, the, 316. Bill of Rights, the, 334, 55, 242 ; restrains royal power, 28, 187, 192 ; on freedom of speech, 108; regulates elections, 143 ; on the dispensing and suspending powers, 172, 173; recognises subject's right to petition the Crown, 247 ; declares standing army illegal unless sanctioned by Parliament, 315. Bills, 23, 167, 168-169; private, 169. Birinus, 272. Bishops, the, 68, 71, 273; not tried by their peers, 114; excluded from House of Lords, 125, 290; do not vote on questions of life and death, 125, 155. Bishops Exclusion Bill, 125, 290. Bland, 118. Blair, Sir Adam, impeached, 156. Bocland, 204 note 1, 205. Bohun, Humphrey, 18. Bolingbroke, impeached, 156. Boniface VIII, 280. Book of Rates, the, 192. Bourchier, Robert, the first lay Chancellor, 256, 282. Bower thegn, the, 35, 207, 259. Bordarii, 227. Borh, 74. Borhs-ealdor, 74. Borough English, 211. Boroughs, the, 129, 131, 133, 136, 137, 260. See Towns. Bot, 79. Bradlaugh, Mr., 140, 141 note, 337. Bieteuil, Roger de, 209, 224. Bretwalda, 33 and note 1. Bribery, of members of Parliament, 142-143; at elections, 143-144. Brigbot, 196. Broad-bottomed Admin istration,the, 149. Bromley, Sir Henry, 108. Brotherhood, the Courts of, 67. Buckingham, the Duke of, 152. Burdett v. Abbott, 119, 337. Burdett, Sir Francis, 119, 145. INDEX. 345 Burgage tenure, 133, 211, 266. Burgesses, the, 130, 131, 135, 136. Burgh, Hubert de, dragged from Sanctuary, 82. Burgh-mote, the, 261. Burh, the, 260-261. Burhbot, 196. Burke's Act (1773), 194. Burley, Sir Simon, 151. Burnell, Robert, a regent (1272), 30. Burton, 79, 244. Bushell's case, 86, 337. Bute, Lord, 142. Butler, the, 35. Butler v. Crouch, 228, 337. Cabal, the, 49. Cabinet, the, 48-52 ; defined, 48 ; efficient and non-efficient members of, 50 ; characteristics of govern- ment by, 51, 52. Cabinet Councils, Sovereign ceases to attend, 49 and note. Calvin's case, 236, 337. Canons of 1604, tne > 2 9§ \ 1606, 26 ; 1640, 298. Canute, 74, 163. Carlisle, Parliament of, 281. Carlisle, Statute of, 281, 173. Carr's case, 245. Carta Mercatoria of 1303, the, 191. Carucage, 187. Carucate, the, 219. Catholic Association, the, 248. Catholic Emancipation Act, the, 293. Catholics, legislation against Roman, 289, 292. Censorship of the press, 243-246. Ceorl, the, 223, 75, 79. Chamberlain, the Lord, 259, 35. Chancellor, the, 255-256, 35, 53, 58, 62, 63, 128, 150, 252. Chancellor of the Exchequer, the, a 57, 35- , m Chancery, the Court of, 62-63. Chancery, the Roll of the, 59. Charles I, his reign, 27, 28. Charles II, confiscates the borough charters, 27, 269, 270. Charters, legislation by, 165. Charters, Town, 261, 262 ; re- modelled by Charles II, 269, 270. Chartists, the, 147, 247, 248. Chatham, Lord, on reform, 144. Chedder, Richard, (case of), 104. Cheeke, Mr., claims barony of Fitz- Walter, 122. Chester, County Palatine of, 219. Chippenham, the treaty of, 267. Chivalry, the Court of, 64, 76, 315. Church, the, 272-304. See Table of Contents, Ch. IX. Church Courts. See Ecclesiastical Courts. Cinque Ports, 220, 319; Courts of the, 67. Circumspecte Agatis, the writ, 280, 294. Civil List, the, 176-177. Civil List Act, the, 143, 176. Clarendon, Edward Hyde, Earl of, impeached, 153. Cla tendon, Constitutions of, 324, 84, 94, 228, 227, 293 ; Assize of, 325,84, 94, 237, 251, 253. Clergy, the, summoned to Parlia- ment, 95, 96, 296 ; reluctant to attend Parliament, 296 ; disquali- fied for a seat in Parliament, 1 38 ; in Anglo-Saxon times, 273, 274; in Edward Ill's reign, 281, 282 ; jurisdiction over, 293 296 ; incur penalties of praemunire, 285 ; vote their own taxes in Convo- cation, 296; surrender ri^ht of self-taxation. 298 ; obtain the county franchise, 298. Clergy Discipline Act (1840), the, 294. Clerical Disabilities Act, the, (1870), 138. Clericis laicos, the bull, 280. Cl< rk, Walter, (case of), 104. Cloveshoe, 296. Coalition Ministries, 149- 150. Coat and Conduct Money, 313. Coinage, the, 181-183. Coinage Act of 1696, the, 183. Coining, punishment for, 77. Coke, Chief Justice, 27, 63, 81, 88, 89, 127 note, 171. Comitatus, the, 309, 207. Commendams, the case of, (161 6), 27* 89, 337- Commendation, 2, 206, 208. 346 INDEX. Commissions of Array, 312-313. Commissioners of Woods and Forests, the, 1 76. Commoners, impeachment of, 155. Common Law, the Courts of, 36, 58-62. See King's Bench, Common Pleas, Exchequer. Common Pleas, the Courr of, 59- 61, 89. Common Prayer, the Book of, 288, 290, 298. Common Recovery, 215. Commons, the House of : — origin of, 128; growth of its powers under Edward III and Richard II, 21, 22, 96, 97 ; its position under the Lancastrian Kings, 22, 23; declares the throne vacant (1689), 14; numbers of, 136, 137, 138; privileges of, 103-113, 114-117; legislation based on petitions of, 165, 166. Communa of London, the, 267. Commune Concilium. See Magnum Concilium and House of Lords. Comptroller and Auditor General, the, 117. Compurgation, 74-75, 204, -266. Concilium Ordinarium. See Council, the King's. Confirmatio Cartarum, 332-333, 30; limits royal power of taxation, 18, 177, 186, 191 ; does not mention tallage, 188. Conge* d'elire defined, 286 note 2. Congresses, Church, 299; diocesan, 299. Conservators of the Peace, 254-255. Consistory Court, the, 294. Constable, the Lord High, 258, 35, 65. Constitution of T258, the, 16, 17; of 1264, 17. Continual Council. See Council, the King's. Contractor's Act, the, 143. Conventicle Act, the, 291. Convocation, the History of, 296-300. Conway, General, io> Cope, Mr., 107, 117. Coping, John, 245. Copley's ca 2 93- Edburga, 33. Edgar, 163, 181. Edric of Kent, 162. Education, the Board of, 46. Edward the Confessor, laws of, 164. Edward the Elder, 163, 232, 267. Edward I, 18, 19, 96, 268; his Church policy, 280-281. Edward II, deposed, 13 ; his reign. 19, 20, 100, 281; employs com- missions of array, 313. Edward III, constitutional impor- tanceofhisreign, 20, 100; Church history during his reign, 282, 283. Edward IV, accession of, 10; re- lations with Parliament, 101. Edwy, deposed, 13. Elections, contested, 111-113. Elections, county, regulated, 23. Electors, rights of, 113. Eliot, Sir John, (case of), 108, 241, 338. Elizabeth, crown settled on, n ; declared illegitimate, 11 ; her rule, 35 ; her ecclesiastical policy, 288- 289. Ellesmere, Lord, upholds claims of Court of Chancery, 63. Emma, Queen, owns Exeter, 33, 261. Entail, 214-215. Entick v. Carrington, 243, 341. Eorl, the, 222, 207. Escheat, 213. Essex, Earl of, tried for treason (1601), 3. Ethel, 205, 204 note 1. Ethelbert of Kent, 162, 273. Ethelred I deposed, 13. Ethelred II deposed, 13; his laws, 163. Ethelwulf, 13 note 2, 301 note. Exchequer and Audit Act, the, 117. Exchequer Chamber, the Court of, 63-64, 89. Exchequer, the Court of, 58, 59. Excise duties, 192, 193. 34« INDEX. Farley Wood malcontents, (case of), the, 4. Fealty, defined, 32 note 2 ; oath of, 2, 26. Felony, appeal of, 76. Fenwick, Sir John, 157. Ferm of the Counties, the, 177, 251. Feormfultum, 177. Ferrers, George, (case of), 104, 338. Feudal incidents, 211-213; income from, 177-178. Feudalism in England ; before the Norman Conquest, 205-208 ; af :ci the Norman Conquest, 208-213. Feudal levy, the, 3 10-31 1. Feudal tenures, 209-211. Fifteenths, 189. Filmer, Sir Robert, 26. Finch, his judgment on the Ship Money case, 200. Fines, judicial, 79; parliamentary, 117 note 2. Fines, the Statute of, 215. Firma burgi, 195, 261, 266. First fruits, 178, 286, 289, 302. Fitzalan, Sir John, 122. Fitz-Harris, Edward, impeached, 15 5. Fitz-Osbern, William, regent in 1067, 29. Five Burhs, the, 261. Five Knights' case. See Darnel. Five Members, the, (case of), 105. Five Mile Act, the, 291. Flambard, Ranulf, 306. Flood, Mr., proposes reforms, 145. Floyd's case, 119, 120. Folcland, 204-20^ ; theory of M. Vinogiadoff, 204 note 1. Forest, Charter of the, (1 2 1 7), 16, 19, 79 note, 184; Assize of the, 327 ; usurpations, checked in 131 1, 20; laws, 27, 79, 183-185; definition of a, 183 ; revenues of the, 183- 185 ; courts, 64, 184. Forgery, punishable by death till i837,77- Fortescue, Sir John, (case of), 112. Fortescue, Sir John, his description of the English Constitution, 23. Forty-two Articles, the, 297. Fox, Charles James, 31, 138, 149, 150; his India Bill, 149, 235; his Libel Act, 246. Franchise, the county, 131-133, 146 ; the borough, 133-135, 146; the lodger, 134. Frankalmoign, tenure by, 210. Franklin's case, 245. Frankpledge, 74; view of, 72, 74, 251. Freedom from arrest. See Arrest. Freedom of access to the Sovereign, no. Freedom of speech and debate, 106- 109. Frithborh, 74. Fyrd, the, 305-307 ; based on alle- giance, 305 ; kept up by Will. I, 306 ; called on for foreign service, 306 ; reorganised by Assize of Arms, 306, 307. Fyrdwite, 188, 305. Gaol delivery, commission of, 254. Gaunt, John of, 132. Gavelkind, tenure by, 211. Gaveston, 20. General Search Warrants, 243. General verdict, a, 245, 246. General Warrants, 243. George III, increased power of Crown under, 28 ; insanity of, 31 ; surrenders the Crown lands, 176. Gersumma reginae, 34. Gisiths, the royal, 207, 222. Giffard, Walter, a regent, 30. Gilbert's Act, 231. Gilds, the, 262-265 '■> religious, 262 ; frith, 262 ; merchant, 263-264 ; craft, 263-265. Gloucester, Humphrey, Duke of, nominated regent by Henry V, 30 ; Richard, Duke of, appointed pro- tector, 31. Gloucester, Statute of, the, 216, 240. Gneist, Dr., his view of the Royal Council, 36. Godden v. Hales, 172, 338. Good Parliament, the. See Parlia- ment. Goodwin, Sir Francis, (case of,, 1 12. Gordon Riots, the, 248. Grand Assize. See Assize. Grand Jury. See Jury. Grand Serjeanty, tenure by, 210, 259. Great Council, the. See Magnum Concilium and House of Lords. INDEX. 349 Great Contract, the, 177, 178, 180. Greenwood, 245. Grenville's Act, 112. Grey, Mr., proposals for reform, 145- Guader, Ralph de, 209, 224. Gualo, papal legate, 15, 29. G nestling, the Court of, 67. Gunhild, acquitted by Wager of Battle, 76. Habeas Corpus Act, the, 333, 242, 243 ; suspension of, 243. Habeas Corpus, writs of, 240-243, io*S ; suspension of, 243. Half-pay system, the, 321. Hall, Arthur, 'case of), 117. Hampden, John, (case of), 199-200, 338. Hampton Court Conference, the, 290. Harding, tried for treason, 4. Harold Harefoot, 13. Harthacnut, deposed, 13. Hatton, Sir C, fined, 80. Haxey, Sir Thomas, (case of), 106- 107, 338. Hearth Tax, 190. Henry I, his succession, 8 : his Char- ter of Liberties, 323, 8, 80, 177, 184, 212, 213, 276. Henry II, his succession, 8 ; his power, 15 ; his anti-feudal policy, 225, 3". Henry III, practically deposed by Provisions of Oxford, 13; attempts at reform under, 1 6 ; unpopular with the Londoners, 268 ; his relations with the Pope, 279, 280. Henry IV, accession of, 9 ; his claim, 9 note 2 ; his relations with Par- liament, 100. Henry V, his relations with Parlia- ment, 100. Henry VI, 10, 31, 101 ; deposed, 14. Henry VII, his title, 10; his illegal exactions, 25. Henry VIII, treason laws of, 4, 5 ; his despotism, 25 ; organises the navy, 320. Herbert, Chief Justice, his judgment on Godden v. Hales, 172. Hereditary succession, 7-13. Heretogan, 1. Heriot, 212, 164. Hertford, Earl of,chosen protector, 31. Hidage, 187. Hide, the, 219. High Commission Court, the, 25, 289 ; origin and composition of, 55 ; abolished, ib. Hlaefdige, title of, 33. Hlaford, 223. Hoadley, Bishop, 298. 299. Hobby, Sir Edward, 108. Holies, Denzil, (case of), 108. H oly Trinity, the Fraternity of the, 320. Homage, defined, 132 note 2, 209. Honour, an, 218. Hooker, 25. Home Tooke, Mr., (case of), 138. Horse thegn, the, 35, 207. Hubert Walter, 8, 185, 278. Hugh of Lincoln, Bishop, 278. Hundred, the, 216-217, 261. Hundred Moot, the, 70-71, 129, 209. Hundreds ealdor, the, 70, 217. Huscarls of Canute, the, 311. Hyde, Sir Nicholas, 27. Impeachment, 150-157, 22, 28, 47, 50. Impressment, for the army, 317; of sailors, 317-318 ; of vessels, 321. Income and Property Tax, the, 190. Indemnity, Acts of, 171, 291, 292. Indulgence, declaration of, 272. Infangentheof, 73. Inhabited House Duty, 190. Ini of Wessex, 162. Innocent IV, 279, 280. Inquest of Sheriffs, the, 326, 250. Instrument of Government, the, 133, 314. Interregnum, 9. Investitures, the dispute about, 276. Ireland, representation of, 137, 138. Iter of 1 194, 84, 251. Itinerant Justices, the, 252-254, 58, 69. James I, his title, II, 12 ; his theory of kingship, 25, 26 ; his procla- mations, 171. 35° INDEX. James II, fosters the navy, 321 ; levies customs by proclamation, 28; raises a standing army, 314; his use of the dispensing and sus- pending powers ,172, 173 ; leaves his kingdom, 12. Jarl, the, 249. Jeffreys, Judge, 269, 270. Jenkes' case, 242. Jeuerie, Statute de la, 238. Jewish Relief Act, the, 239. Jews, the, 237-230, 178, 181, 306. John, quarrels with Innocent III, 278-279; his submission, 279. John de Grey, 278. John of Gaunt, 9 note 2, 10 note 3. Judges, under the Tudors. 88 ; under the Stuarts, 26, 27, 88, 89; their independence secured by the Act of Settlement, 335; cannot sit in the Lower House, 138. Judicial Punishments. See Punish- ments. Junto, the, 148. Jurisdictions, private, 73. Jurors, immunity of, 86. Jury, the, history of, 83-87 ; in civil cases, 83 ; in criminal cases, 84 ; Grand, the. 70, 85 ; Petty, the, 85 ; Jury of Afforcement, 85. Justice Seat, the Court of, 64. Justices in eyre, or itinerant. See Itinerant Justices. Justices of the Peace, 254-255. Justiciar, the, 255, 29, 35, 58. Keighley, Henry, (case of), 106. Kent, County Palatine of, 219. Kentish Petitioners, the, 118, 247. Kin, importance attached to, 204. King, Anglo-Saxon, 14; increase of his power, 1, 2; assumes new titles, 2, note 2 ; deposition of, 13, 14; Plantagenet, 15-22; Lancas- trian.. 22, 23; Yorkist, 23, 24; Tudor, 24, 25, 101 ; Stuart, 25, 28, 101, 102; Hanoverian, 28, 102 ; position of, at present day, 28, 29. King's Bench, the Court 6f, 61-62, 89. Kingship in England, origin of, 1 ; becomes territorial, 2. Knights of the shire, 70, 129, 130, 131,^32, I35> J 36. Knight's fee, 310. Knight Service, tenure by, 209-210. Labourers, Ordinance and Statutes of, 228, 229. Laenland, 205. Laets, 224, 205. Lancaster, the Chancery Court of, 67. Lancaster, County Palatine of, 219. Lancaster, Henry, Earl of, head of the council of regency (1327), 30. LancastrianKings,theirtitle, 9 ; their constitutional government, 22, 23 ; its failure, 23. Land Tax, the, 190. Langton, Stephen, 278, 296. Lathe, the, 217. Lntimer, Lord, impeached, 47, 151. Laud, Archbishop, impeached, 153. Lawyers not to sit as knights of the shire, 141. Laymen, the house of, 299. Leet, the Court, 71, 72. Legations, 274. Legislation, by Assizes, 164 ; by provisions, 165 ; by Statute, 165, 166 ; by Ordinance, 166 ; by the Crown, 169-173; byproclamation, 169, 170; how initiated, 167, 168; Commons gradually gain control over, 167-168. Leicester, town of, 261, 262, 269. Letters missive, 286 note 2. Letters Patent, 123, 125, 286 note 2. Lewes, Mise of, 17. Lewis of France, Prince, 13. Libel Act, Fox's (1792), 246; Lord Campbell's (1843), 246. Libel, the law of, 245-246, 79. Liberty of Opinion, 243-246. Liberty of the Subject, 239-243. Licensing Acts, the, 244. Livery, 226, 227. Local Government Act of 1888, the, 271. Local Government Board, the, 46, 232. Lodemanage, the Court of, 67. Lollards, the, 284. London, 1 33, 184 ; its history to Ed- ward I, 266-268 ; forfeits its Char- INDEX. 35* ter, 269; its Corporation still unreformed, 270. Long, Thomas, (case of), 117, 143. Longchamp, William , regent (1 1 9 1 ) , 29 ; deposed, 46, 268. Long Parliament, the. See Parlia- ment. Lord Lieutenant, the, 255, 307, 313. Lord Mayor of London, the, 268. Lord Mayor's Court, the, 62 note. Lords, the House of: — privileges of, 103-115 ; its disputes with the House of Commons, 120, 121; claims original jurisdiction, 120, 128; origin of, 1 2 1 ; composition of, 1 24-126; numbers of, 126, 127; functions of, 127, 128, 89; abol- ished (1649), 127; is a Court of Record, 127 ; is a Supreme Court of Appeal, 128, 89. Lords Ordainers, the. See Ordainers. Lyons, Richard, 151. Magna Carta, 328-330; limits royal power, 15; four chief articles of, 15; reissued, 1216, 1217, 1225, 15, 16 ; on common pleas, 59; on assizes, 69, 87, 88, 129, 253; no sheriff to hold pleas of the Crown, 70, 251 ; on the Great Council, 95; on reliefs, 177, 212; on pur- veyance, 1 79 ; on the Forest Courts, 184; on arbitrary taxation, 186, 211 ; on merchants, 190, 232 ; on wardship, 213; on escheat, 213; to apply to every one, 226; on liberty of the subject, 239, 240; confirms the liberties of the towns, 265 ; provides for dismissal of the mercenaries, 312. Magnum Concilium, 94-95, 35, 121. See House of Lords. Mainprize, writ of, 240. Maintenance, 227. Mainwaring, Dr., 26, 152. Maletotes, 18, 190. Malton, the Prior of, 103. Manor, 218. Manorial Courts, the, 72, 73. Mansfield, Lord, 50, 245, 246. Mark System, the, 203, 204. Marlborough, Parliament of, 18; Sta- tute of, 331, 72, 87. Marquises, 124. Marriage, 213. Marshal, the Earl, 258, 35, 64; Couit of the, 64, 65. Marshal, William, rector regis et regni (12 16 ',, 29. Marshalsea, the Court of the, 66. Martial Law, 315-317. Martin Marprelate, 245. Martin, Master, 279. Martin, Sir W., (case of), ill. Mary, Duchess of Suffolk, it. Mary, Queen, declared illegitimate, 1 1 ; first Queen Regnant, 34 ; power of Crown under, 25. Master of the Temple, the, 103. Maud, Empress, 8. Mayor, the, 268, 269, 270; Lord Mayor of London, 268. Melville, Henry Dundas, Lord, im- peached, 157. Mercenary troops, 311, 312. Merchant Adventurers, the, 234. Merchants, 232-235; Statute of, 233. Merchant Gilds, the, 263-264. Merton, Statute of, 71, 87. Mesne Lords, 211. Metropolitan Board of Works, the, 270,271. Middlesex, Lionel Cranfield, I'arl of, 152. Mild may, Mr., 122. Military service, term of, 310, 315. Military systems, English, 305-319 ; (1) allegiance, 305-309; ^hom- age, 309-311 J (3) pay, 312-318. Militia, the, Anglo-Saxon, 305-307 ; modern, 307-308. Millenary petition, the, 290. Miller, (case of), no. M inister, the Prime. See Prime Min- ister. Ministerial responsibility, 21, 46- 48. See also Cabinet. Minors, disqualified for sitting in House of Commons, 138. Mist's Journal, 119. Mitchell, Sir Francis, 152. Mompesson, Sir Giles, 152, 201. Monasteries, suppression of the, 287. Money Bills, originate with the Com- mons, 114, 115, 169. Money grants, originated by the 35* INDEX. House of Commons, 23, 114, 115, 169. Monopolies, 201-202, 25, 27. Montfort, Simon de, 18, 130, 226. Moravians, allowed to affirm, 141. Morley, Mr. J., gives four features of Cabinet government, 51. Mortimer, Roger, a regent ( 1 2 7 2) , 30. Mort d'ancestor, Assize of, 87. Mortmain, Statute of, 40, 280, 282. Morton's fork, 200. Mortuary fees, 285. Moveables, taxation of, 188-189, 185, 196. Mowbray, Robert, Earl of Northum- berland, 224. Mund, breach of, punishable by fine, 79. Municipal Corporations Act, the, 2 70. Murdrum, 70. Murray, Alexander, (case of), 118, 338. Mutilation. See Punishments. Mutiny Act, the, 315, 316, 317. National Debt, the, 197-198. National Debt Act, the, 198. Naturalisation, 235, 236. Naturalisation Act, the, (1870), 32, 44, 236. Naval Discipline Act, the, 321. Navigation Act, the, of 1381, 320. Navy, the, 319-322 ; Anglo-Saxon, 319 ; Norman and Plantagenet, 319, 320; Tudor, 320; Stuart, 320, 321. Neville, Lord, impeached, 47, 151. Neville, Sir Edward, 122. Newark, 137. New Monarchy, causes which led to the, 23-24. Nisi Prius, Commission of, 254. Nonconformists, the, 290, 291, 292. Nonjurors, the, 292. Norfolk, Duke of, tried for treason, 3. Northampton, Assize of, 326, 87, 2i3> 251, 253. North Briton, No. 45 of the, 243, 245. North, Lord, his Coalition with Fox, 149. Novel disseisin, Assize of, 87. Nowell, Dr., 11 1. Oath of fealty, the, 2 ; of allegiance, 140, 141, 292; of 1701, 26; of Supremacy, 148, 292. Oaths Act of 1866, the, 239; of 1888, 141. Occasional Conformity Act, the, 292. Odo, Earl of Kent, 29, 224. Oferhyrnes, 79. Offices, sale of, by the Crown, 178. Ondeby, William, in. Ordainers, the Lords (1310), 19, 47, 100. Ordeal, 75-76, 84. Orders in Council, 45, 167. Ordinance, legislation by, 165, 166- 167. Ordinances of 1 310 and 131 1, 19, 59, 98, 165, 175, 180, 182, 258. Orford, Lord, impeached, 156. Orleton, Adam, 281. Ormond,the Duke of, impeached, 1 56. Oswi of Northumbria, 273. Ouster le main, 213. Outlawry, abolished in civil cases, 237- Outlaws, 237. Oxford, borough of, 144. Oxford, Lord, impeached (1715), 48, 156. Oxford, the Earl of, fined by Henry VII, 80, 227. Oxford, Provisions of. See Provi- sions. Oyer and Terminer, commission of, 254- Palace Court, the, 66. Palatine Counties, 219, 209; Courts of the, 67. Palmer's case, 117. Papal bulls.treasonable to introduce, 5 . Parke, Sir James, 1 25. Parker, Archbishop, his 'Advertise- ments,' 290. Parliament, treasonableto intimidate, 5 ; Edward I admits Commons to, 18; increase of its powers under Edward III, 20, 21 ; subservient to Richard II, 22 ; increased power under the Lancastrians, 23 ; under the Tudors, 25 ; powers of, increas- ed by Bill of Rights, 28 ; not to be packed with placemen (Act of Set- INDEX. 353 tlement), 28 ; relations of, to Royal Council, 38, 39 ; name first used, 95 note ; growth of the repre- sentative principle, 95, 128-131 ; divided into two Houses, 96, 135 ; powers of, 96, 97 ; summons, dura- tion and dissolution of, 97-99; its relation to the Crown, 99-102 ; privilege of, 103-119; double re- turn to, 112; increase in number of members of, 1 36-137. See also Commons, House of; Lords,House of, and Prerogative. Parliament, the Addled, 160; of Bats, 160; Barebone's, 160; of Carlisle, 281 ; First Convention, 97, 161 ; Second Convention, ib. ; Good, 47, 180 ; Long, 55, 56, 98, 109, 199, 307; Mad, 16; Model, 95, 128, 131, 136; Pensionary, 99, 161 ; Reformation, 285-287 ; Rump, 160; Short, 160; Un- learned, 141, 160; Wonderful or Merciless, 131. Parliamentary Oaths Act, the, ( 1 866) , 239- Parliamentary Test Act, the, 292. Parry, Dr., (case of), 117. Party, definition of, 147 note 1. Party Government, 147-14Q. Passage, the Court of, (Liverpool), 62 note. Passive obedience, 26. Patents, 202. Paulinns, 272. Pay, military service for, 311-315. Peace, Commission of the, 254. Peacham, (case of), 4, 81, 339. Peasants' revolt, the, 228. Peckham, Archbishop, 280, 296. Peculiars, the Court of, 295. Peel, Sir Robert, 1 1 2, 1 94. Peerage Bill, the, (1719), 123. Peers, creation of, 122-124; Lay, 124; Spiritual, 124, 125; Life, 125, 126; Representative, 126; profuse creation of, 127 ; English, Scotch, and Irish representative, cannot sit in Commons, 140. See Lords, House of. Peine forte et dure, 79, 85. Pelhams, the, 50, 142, 149. Pembroke, Earl of, 8, 15. Penda, 272. Penredd, Timothy, his sentence, 31. Penry, 245. Pensions, 138. Pepys, Samuel, 321. Peruzzi, the. 178. Peter de la Mare, (case of), 106. Peter's pence, 274, 282, 2 S3 286. Petition of Right, 333, 19, 27, 186, 188, 192, 201, 241, 316. Petitioners, the, 147. Petitions, of the Commons, 165-166. Petitions, the presentation of, 246- 247. Petit Serjeanty, tenure by, 210. Petty Sessions, 254. Philipot, John, 1 16. Philpot, John, 320. Pickering, Lord Keeper, 108. Pigg v. Caley, 228, 339. Pipe Roll, the, 59. Pitt, William, on the regency (1788), 31 ; on a Prime Minister, 52 ; proposals for reform, 144, 145 ; ministry of. 150; hisIndiaBill, 235. Pius V, the bull of, 289. Place Bill, the, 143. Pleas of the Crown, 178. Plesaunce, Le, 198. Pluries Writ, 241. Pole, Michael de la, 47, 151. Police, Anglo-Saxon, 73, 74. Political agitation, 247-248. Poll Tax, 189, 190. Poor Law Amendment Act, the, 231. Poor Law Board, the, 46, 232. Poor Law Commissioners, 232. Poor Laws, the, 229-232. Portland, Lord, 156. Port reeve, the, 260. Postnati, case of the, 236, 337. Post Office, the, 193. Praemunire, Statute of, 283, 285. Praemunire, a, defined, 283 note a. Preemption, 179 note 1. Prerogative, royal ; defined 14 note 3 ; of Anglo-Saxon and Norman Kings, 14 ; reasons for its increase, 14; of Plantagenets, 15 ; limited by Provisions of Oxford, 1 7 ; limited by Confirmatio Cartarum, 18; limited by Ordinances of 1 3 1 1 , 20 ; declaration concerning, ( 1 390), aa ; Aa 354 INDEX. checks on, at accession of Henry VII, 24 ; under the Tudors, 24-25; Stuart theory of, 25-26 ; judges declaration of 1 610, 26 ; restraints placed on by the Petition of Right, 333 ; restraints placed on by the Bill of Rights, 28, 334; extent of at present time, 28, 29 ; in legislation, 169-173. See also Crown and King. Prerogative Court, the, 295. Presbyterianism, 288, 290, 291. Presentment, jury of, 70, 85 ; of Englishry, 74. Press, censorship of the, 243-244. Prime Minister, the, 52. Primer Seisin, 212. Prisage, 190, 192. Privilege of Parliament, 103-119; common to both houses, 103-1 1 3 ; special privileges of the Lords, 1 1 3-1 14 ; special privileges of the Commons, 114-117; howenforced, 117-119. Privy Council, examined prisoner charged with treason, 6 ; term first used under Henry VI, 42 ; history of, from Henry VI to present day, 42-46 ; powers of, 41, 45 ; Tem- ple's scheme to reform, 45 ; Committee of, 44, 45, 46 ; Judicial Committee of, 45, 89, 295 ; relation of, to the Cabinet, 49. See also Council, the King's. Privy Councillors, 42, 43 ; privilege of, 46; salary of, in 1406 and i43 x »39 n °te 1. Privy Seal, the Lord, 257. Prize Court, the, 65. Probate Courts, 296. Probate fees, 285. Proclamations, 169-171, 167; Sta- tute of, 170, 25, 54; case of, 171, 339- Prohibitions, case of, 88, 339. Property, tax on succession to per- sonal, 190. Protest, the right to record a, 113. Provincial Courts of the province of Canterbury, the, 295. Provincial Courts of the province of York, the, 295. Provisions, legislation by, 165. Provisions of Oxford, 330, 16, 17. 98 note, 179, 252. Provisions of Westminster, 330, 17, 72, 280. Provisors, Statute of, 282, 283, 40. Proxies, 113. Prynne, 79, 244. Public Worship Regulation Act (i 8 74), 45> 2 99 Punishments, 77-81 ; capital, 77-78 ; mutilation, 78, 79 ; peine forte et dure, 79 ; fines, 79 ; torture, 80, 81. Purchase, case of, 4. Puritans, the, 290, 291. Purveyance, 1 79-181, 20, 204. Quakers, allowed to affirm, 141. Quarter Sessions, 254. Queen Anne's Bounty, 302. Queen, Consort, 33 ; gold, 34 ; title of, 33 5 regnant, 34. Quia Emptores, Statute of, 332, 131, 214, 218. Rageman, Statute of, 40. Rape, the, 217. Rates, county r 196, 197 ; borough, 197; poor, 197. Recognitors, inquest by sworn, 75, 83,88. See)\xxy. Record, a Court of, defined, 57 note 1, 127. Redistribution of Seats Act (1885), 137. Reed, Alderman, 201. Reeve, the, 129, 218, 260. Reform Act of 1832, 145-146, 51, 133, 134. !37, M4, 239; of 1867, 133, 134, r 4 6. Regard, the Court of, 64. Regencies, 29-32 ; Acts to regulate, (1751), 3i; (1765), 3i; (1788), 32; (1811), 32. Regent, a, king has no power to nominate, 30 ; must be appointed by Parliament, 31. Reliefs, 212, 177, 209. Representation, growth of the prin- ciple of, 95, 1 28-131. Representation of the People Act (1884), 133, 134. Requests, Court of, the, 55-56. Requests, Masters of, 55. INDEX. 355 Responsibility of Ministers. See Ministerial Responsibility. Resumption, Acts of, 175. Return, a double, 112. Returning Officer, the, 133. Revenue Officers, disfranchised, 144. Revenue, the, of the Crown ; Crown lands, 175; ferm of the shires, 177 ; feudal, 177; sale of offices, 178 ; pleas of the Crown, ib. ; from the Church, ib.; from the Jews, ib.; miscellaneous, ib. ; from purvey- ance, 179-180; from the coinage, 181-183 ; from the forests, 183- 185 ; from direct taxation, 187- 190; from indirect taxation, 191- 193. Rhuddlan, the Statute of, 59. Richard II, accession of, 9 ; deposed, 13, 22 ; his reign, 22, 100. Richard III, accession of, 10; his relations with Parliament, 101. Richmond, Duke of, 144. Riding, 217. Riot Act, the, 335, 5. Roches, Peter des, 29. Roger of Salisbury, Bishop, 276. Roman Catholic Relief Act, 1 38. Rom-feoh. See Peter's Pence. Root and Branch Bill, the, 290. Rothschild, Baron, 239. Rupert, Prince, 320. Russell, Lord John, brings in the Reform Bill, 145. Russell, tried for treason, 4. Sac %id Soc, 73, 206. Saladin Tithe, the, 129, 189, 196, 250. Salford Hundred Court, the, (Man- chester), 62 note. Salisbury, Lord, fined, 80. Salisbury, the meeting at, (1086), 209, 306, 310. Sancroft, Archbishop, 292. Sanctuary, privilege of, 82-83. Sandys, Sir Edwin, (case of), 108. Savage, John, (case of), 104. Scavenger's daughter, the, 81. Schism Act, the, 292. Scot and Lot, 134. Scotch Marches, Courts of the, 56 note 3. Scotland, representation of, 1 37, 138, Scroggs, Chief Justice, impeached. 1 56 ; judgment on Carr's case, 245. Scrope, Sir Richard le, first lay Treasurer, 256. Scutage, 188, 195, 210, 251, 311. Secresy of Debate, 109, no. Secretaries of State, the, 257. Sees left vacant, 178. Selden, 241. Select Committees, 169. Select Vestry Act, the. 231. Septennial Act, the, 99. Serfs, 223. Serjeanty, tenure by Grand, 210, 259 ; tenure by Petit, 210. Settlement, Act of, the, 335, 12, 28, 44, 45, 48, 89, 143, 155, 236. Seven Bishops, the, 245. Sewers, Court of the Commissioners of, 67. Shaftesbury, the borough of, its election petition, in. Shaftesbury, Lord, 118. Sharington, Sir William, 182. Sheldon, Archbishop, 298. Shepway, the Court of, 67. Sheriff, the, 249-252, 59, 68, 69, 70,84,87,111,132,133,135,136, 141, 164, 177, 194, 195, 255, 261. Sheriffs aid, the, discussed at Woodstock ( 1 163), 185. Sheriff's Tourn, the. See Tourn. Shipgeld, 187. Ship-money case, the, 199-200, 27, 338. Shire, the, 216. Shire-moot, the, 68-70 ; before Nor- man Conquest, 68, 273 ; after Norman Conquest, 68-70, 209. See also County Court. Shirley, Sir Thomas, (case of), 105, 339- Shirley v. Fagg, 120, 339. Shrewsbury, Duke of, the last Lord High Treasurer, 256. Sicily, Crown of, offered to Henry III, 280. Sidney, Algernon, (case of), 4, 339. Sigebert, deposed, 13. Silk Weavers' riots, 247. Sinking fund, Walpole's, 198. Sithesocn, 218. A a % 356 INDEX. Six Acts, the, (i 8 1 9), 248. Six Articles, the, 287. Skinner v. the East India Company, 120, 340. Slaves, 223. Smalley, (case of), 105, 340. Socage, tenure by free, 210; tenure by villein, 211. Socages free, 209. Sodor and Man, Bishop of, 1 25. Soldiers, the pay of, temp. Edward III, 312 note 2. Somersett, (case of), 340. Somers, Lord, 120, 156. Sophia, the Electress, Crown entailed on her heirs (1701), 12. St. Albans, the Council at, (12 13), 130. St. John, Oliver, of Marlborough, 201. St. John, Oliver, (Solicitor-General), 200. Staller, the, 35, 207 note. Stamp duties, 193, 244. Standing Army, the, 313-317. Stanley, Sir Thomas, 182. Stannaries, 221; Courts of the, 66, 67. Staple, the, 233, 234; merchants of the, ib.; Ordinance of the, 167,191. Staples, Statute of, (1353), 21. Star Chamber, the Court of, 52-55, 79, 80 ; helps to increase royal power, 25, 55, 171 ; origin and members of, 53 and note 2 ; jurisdiction and procedure, 54, 244, 245 ; abolished, 55. Starrs, the, 53 note 1. StaLute, legislation by, 165-166. Steele, Richard, (case of), 118. Steel yard, the merchants of the, 233, 234- Stephen accession of, 8 ; First Charter of, 324 ; Second Charter of, 293 ; alienates the Church, 276, 277. Steward, the, 35 ; of the Household, 65 ; of Great Britain, 65, 66. Steward, the Lord High, 258-259 ; Court of the, 65, 66, 114, 150. Steward of the Household, the Court of the Lord, 65. Stigand, Archbishop, deposed, 274. Stockdale v. Hansard, 1 19, 246, 340. Storie, John, 1 1 7. Strafford, Thomas Wentworth, Earl of, impeached, 152. Strangers, excluded from Parliament, 1 10. Stratford, Bishop, 13, 281. Strickland, 107, 290. Strode, Richard, (case of), 107, 66, 34°- Strode's Act, 107, 108. Stuarts, the, their reigns, 25-28 ; their relations with Parliament, 101, 102. Subinfeudation, 209, 214. Submission of the Clergy, Act for the, 2^6. Subpoena. Writ of, 63. Subsidy, 189. Succession to the throne, 7-T 3 ; in Anglo-Saxon times, 7 ; after the Conquest, 7, 8 ; Edward I, king by hereditary right, 8 ; Lancastrian title, 9 ; Yorkist title, 9, 10 ; Tudor title, 10 ; succession entailed on male heirs of Henry VIII, 1 1 ; James I, 1 2 ; Parliament asserts its right to alter, 12; determined by Act of Settlement, 12. Summons, Writ of, 95, 114, 121, 310. Supremacy, Acts of, 55, 287, 289. Supreme Court of Judicature Act (1873), the, 59, 62, 63, 65, 67, 295. See Appellate Jurisdiction. Supreme Head, title of, 285, 287. Suspending power, the, 172-173, 28. Sweinmote, the Court of, 64. Synods, diocesan, 296; provincial, ib. Tacking, 115. Talents, ministry of all the, 150. Tallage, 188, 18, 20, 186, 260. Taltarum's case, 215. Taxation, arbitrary under the Nor- man kings, 185; regulated by Magna Carta, 1 5 ; regulated by Confirmatio Cartarum, 18; regu- lated by Statutes of Edward III, 20, 21; regulated by the Bill of Rights, 28, 187; regulated by growth of Parliament's control over, 96, 186; direct, 187-190; indirect, 190-193 ; how assessed, 194, 195, 196; local, 196; instances of arbitrary, 198-202. INDEX. 357 Team, 73. Templars, the, 81, 281. Temple, Sir W., tries to reform Privy Council, 43. Tenmannetale, 74. Tenths, 189, 289. Test Act, the, 291, 292, 293. Thacker, Elias, 245. Theft, An^lo-Saxon punishments for, 77 ; abolition of death penalty for, ib. Thegn, the, 222, 2, 35, 75, 79, 206, 208, 306, 309, 310. Theodore of Tarsus, 273. Theows, the, 223. Thirty-nine Articles, the, 289, 297. Thomas v. Sorrell, 172, 340. Thomas of Canterbury, St. See Becket Thornton, Abraham, claims trial by battle, 77. Thorpe, Thomas, speaker, (case of), 104, 341. Thorpe, Thomas, ill. Throckmorton, Sir Nicolas, 54, 86, 34 1 - Tithe Commutation Act, the, 301. Tithe Rent Recovery Act, the, 301. Tithes, history of, 300-301. Tithing, a, 74. Toleration Act, the, 292. Toll, 73. Tolzey Court, the, (Bristol), 62 note. Tories, 148. Torture, 80-81. Tourn, the Sheriffs, 71, 72, 74. Towns, the, 260-271, 27, 75 ; before the Conquest, 260-261 ; from the Conquest to Henry II, 261-265; from Henry II to 1265, 265-268; their later history, 268-271. Township Moot, the, 71. Township, the, 218, 203. Trade, Board of, 45. Trade and Plantations, Committee of, 46. Trail baton. Writ of, 91. Trained Bands, the, 307. Treason, 140, 213 ; Alfred's law of, 3; Statute of 25 Edw. Ill, 3, 182 ; judicial construction of act, 3, 4 ; trials for, 3,4; procedure in cases of, 6 ; Tudor Treason Acts, 4, 5 ; Statutes of 171 5 and 1795, 5; treasonable to withdraw subjects from their allegiance (1581), 32. Treason Felony Act (1848), 6. Treasurer, the, 35, 53, 58, 63, 252, 256-257. Triennial Act, the First (1641), 98; the Second (1664), 99; the Third (1694), 99. Trinoda necessitas, the, 196, 205, 210, 305. Trussel, Sir W., 13. Tudors, the (see also, King, the), their relations with the Law Courts, 88 ; their relations with Parliament, 25, 10 1 ; their use of proclamations, 170. Tun-gerefa, the, 260. Tunnage and Poundage, 192, 21, 27, 116. Tutchin's case, 245. Uniformity, Acts of, 288, 289, 291. Uniformity Amendment Act, the, 299. Unitarians, 292. Use, a. 2 1 5 note 4. Uses, Statute of, 215. Valentine, Benjamin, (case of), 108. Vaughan, Chief Justice, on Bushell's case, 87; on Thomas v. Sorrell, 172. Villeins, 227-229, 265 ; in gross and regardant, 228. Villiers, Mr. Charles, 194. Viscounts, 124. Volunteers, the, 308-309. Wager of Battle, 76, 77. Wager of Law, 75. Wages of Members of Parliament, 135, 136. Wales, the Council of, 56. Wales, representation of, 137. Wallingford, Treaty of, 181, 250. Walpole, Robert, 52, 118, 123, 142, 198, 247. Walworth, William, 116. Wapentake, 216, 217. Warden of the Stannary Courts, the Lord, 66. Ward-mote, the, 261, 267. Wards, the Court of, 56. Wards, the Master of, 57. 35* INDEX. Wards of London, the, 267. Wardship, 212, 213. Warren Hastings, trial of, 154, 157. Wason v. Walter, no, 246, 341. Wealh, 223. Wed, the, 75, 80. Wensleydale, Lord, 125. Wentworth, Paul, 107 ; Peter, 107, 108, 117; Thomas, 108. Wentworth. See Strafford. Wer, 79. Wergild, 79, 223. Westminster, Provisions of. See Provisions. Westminster I, Statute of, 331, 79, 80, 179, ail, 213, 227, 294. Westminster II, Statute of, 332, 40, 87, 213, 214, 215, 240, 253, 254. Westmoreland, Lord, fined, 80. Whitby, Synod of, 272, 273. Whigs, 148. Wihtred of Kent, 162. Wilford, Sir Thomas, 316. Wilkes, John, 106, 118, 144, 243, 34i. Wilkes v. Wood, 243; v. Halifax, ib. William I, elected by the Witan, 8 ; his ecclesiastical policy, 274-275 ; keeps up the fyrd, 306 ; strengthens the navy, 319. William Rufus, his tyranny, 275 ; calls on the fyrd for foreign service, 306. William III, his accession, 12; chooses ministers from both par- ties, 49 ; Parliament under, 102. Williams, Bishop, last clerical Chan- cellor, 256. Williams, (case of), 4. Wills Act, the, (1540), 216. Winchelsey, Archbishop, 18, 281. Winchester, Statute of, 332, 251, 307, 3i», 3i9- Window Tax, 190. Wite, 79. Witenagemot, the, 92-94, 7, 13. Witnesses, two requisite in treason cases, 6. Wolsey, 151. Women, may not sit in the Lower House, 1 40. Woodmote, the Court of, 64. Woodstock, Assize of, 184. Wycliffe, John, his teaching, 283, 284. Yelverton, Christopher, 107. Yeomanry, the, 308, 309. Yeomen of the Guard, the, 314. 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