Chapter XI: Part III: The English Constitution (9)

"This [the trial and judgment of Llewellin] seems to have been the only business transacted at Shrewsbury; for the bishops and abbots, and four knights of each shire, and two representatives of London and nineteen other trading towns, summoned to meet the same day in parliament, are said to have sat at Acton Burnell; and thence the law made for the more easy recovery of the debts of merchants is called the Statute of Acton Burnell. It was probably made at the request of the representatives of the cities and boroughs present in that parliament, authentic copies in the king's name being sent to seven of those trading towns; but it runs only in the name of the king and his council." Carte, ii. 195, referring to Rot. Wall. 11 Edw. I. m. 2nd.

As the parliament was summoned to meet at Shrewsbury, it may be presumed that the Commons adjourned to Acton Burnell. The word "statute" implies that some consent was given, though the enactment came from the king and council. It is entitled in the Book of the Exchequer--des Estatus de Slopbury ke sunt appele Actone Burnel. Ces sunt les Estatus fez at Salopsebur, al parlement prochein apres la fete Seint Michel, l'an del reigne le Rey Edward, Fitz le Rey Henry, unzime. Report of Lords' Committee, p. 191. The enactment by the king and council founded on the consent of the estates was at Acton Burnell. And the Statute of Merchants, 13 Edw. I., refers to that of the 11th, as made by the king, a son parlement que il tint a Acton Burnell, and again mentions l'avant dit statut fait a Acton Burnell. This seems to afford a voucher for what is said in my text, which has been controverted by a learned antiquary.[*] It is certain that the lords were at Shrewsbury in their judicial character condemning Llewellin; but whether they proceeded afterwards to Acton Burnell, and joined in the statute, is not quite so clear.

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

[72] [Note VI.]

[73] Willis, Notitia Parliamentaria, vol. ii. p. 312; Lyttelton's Hist. of Hen. II. vol. iv. p. 89.

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

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

[76] Though such an argument would not be conclusive, it might afford some ground for hesitation, if the royal burghs of Scotland were actually represented in their parliament more than half a century before the date assigned to the first representation of English towns. Lord Hailes concludes from a passage in Fordun "that as early as 1211 burgesses gave suit and presence in the great council of the king's vassals; though the contrary has been asserted with much confidence by various authors." Annals of Scotland, vol. i. p. 139. Fordun's words, however, so far from importing that they formed a member of the legislature, which perhaps Lord Hailes did not mean by the quaint expression "gave suit and presence," do not appear to me conclusive to prove that they were actually present. Hoc anno Rex Scotiae Willelmus magnum tenuit consilium. Ubi, petito ab optimatibus auxilio, promiserunt se daturos decem mille marcas: praeter burgenses regni, qui sex millia promiserunt. Those who know the brief and incorrect style of chronicles will not think it unlikely that the offer of 6000 marks by the burgesses was not made in parliament, but in consequence of separate requisitions from the crown. Pinkerton is of opinion that the magistrates of royal burghs might upon this, and perhaps other occasions, have attended at the bar of parliament with their offers of money. But the deputies of towns do not appear as a part of parliament till 1326. Hist. of Scotland, vol. i. p. 352, 371.

[77] [Note VII.]

[78] These expressions cannot appear too strong. But it is very remarkable that to the parliament of 18 Edward III. the writs appear to have summoned none of the towns, but only the counties. Willis, Notit. Parliament. vol. i. Preface, p. 13. Prynne's Register, 3rd part, p. 144. Yet the citizens and burgesses are once, but only once, named as present in the parliamentary roll; and there is, in general, a chasm in place of their names, where the different ranks present are enumerated. Rot. Parl. vol. ii. p. 146. A subsidy was granted at this parliament; so that, if the citizens and burgesses were really not summoned, it is by far the most violent stretch of power during the reign of Edward III. But I know of no collateral evidence to illustrate or disprove it.

[79] Tallages were imposed without consent of parliament in 17 E. I. Wykes, p. 117; and in 32 E. I. Brady's Hist. of Eng. vol. ii. In the latter instance the king also gave leave to the lay and spiritual nobility to set a tallage on their own tenants. This was subsequent to the Confirmatio Chartarum, and unquestionably illegal.

[80] Prynne's 2nd Register. It may be remarked that writs of summons to great councils never ran ad faciendum, but ad tractandum, consulendum et consentiendum; from which some would infer that faciendum had the sense of enacting; since statutes could not be passed in such assemblies. Id. p. 92.

[81] 28 E. I., in Prynne's 4th Register, p. 12; 9 E. II. (a great council), p. 48.

[82] Brady's Hist. of England, vol. ii. p. 40; Parliamentary History, vol. i. p. 206; Rot. Parl. t. ii. p. 66.

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

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

[85] Id. p. 430.

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

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

[88] Id. p. 5.

[89] Id. p. 86.

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

[91] 4 E. III. c. 14. Annual sessions of parliament seem fully to satisfy the words, and still more the spirit, of this act, and of 36 E. III. c. 10; which however are repealed by implication from the provisions of 6 Will. III. c. 2. But it was very rare under the Plantagenet dynasty for a parliament to continue more than a year.

It has been observed that this provision "had probably in view the administration of justice by the king's court in parliament." Report of L. C. p. 301. And in another place:--"It is clear that the word parliament in the reign of Edward I. was not used only to describe a legislative assembly, but was the common appellation of the ordinary assembly of the king's great court or council; and that the legislative assembly of the realm, composed generally, in and after the 23rd of Edward I., of lords spiritual and temporal, and representatives of the commons, was usually convened to meet the king's council in one of these parliaments." p. 171.

Certainly the commons could not desire to have an annual parliament in order to make new statutes, much less to grant subsidies. It was, however, important to present their petitions, and to set forth their grievances to this high court. We may easily reconcile the anxiety so often expressed by the commons to have frequent sessions of parliament, with the individual reluctance of members to attend. A few active men procured these petitions, which the majority could not with decency oppose, since the public benefit was generally admitted. But when the writs came down, every pretext was commonly made use of to avoid a troublesome and ill-remunerated journey to Westminster. For the subject of annual parliaments see a valuable article by Allen in the 28th volume of the Edinburgh Review.

[92] This article is so expressed as to make it appear that the grievance was the high price of commodities. But as this was the natural effect of a degraded currency, and the whole tenor of these articles relates to abuses of government, I think it must have meant what I have said in the text.

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

[94] Id. p. 75.

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

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

[97] It is however distinctly specified in stat. 7 Edw. II. and in 12 Edw. II., and equivalent words are found in other statutes. Though often wanting, the testimony to the constitution of parliament is sufficient and conclusive.

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

[99] Walsingham, p. 97. The Lords' committee "have found no evidence of any writ issued for election of knights, citizens, and burgesses to attend the same meetings; from the subsequent documents it seems probable that none were issued, and that the parliament which assembled at Westminster consisted only of prelates, earls, and barons." p. 259. We have no record of this parliament; but in that of 5 Edw. II. it is recited--Come le seizieme jour de Marz l'an de notre regne tierce, a l'honeur de Dieu et pour le bien de nous et de nostre roiaume, eussions grante de notre franche volonte, par nos lettres ouvertes aux prelatz, countes, et barons, _et communes de dit roiaume_, qu'ils puissent eslire certain persones des prelatz, comtes, et barons, &c. Rot. Parl. i. 281. The inference therefore of the committee seems erroneous. [Note VIII.]

[100] "La commonaltee" seems in this place to mean the tenants of land, or commons of the counties, in contradistinction to citizens and burgesses.

[101] Rot. Parl. vol. ii. p. 66. The Lords' committee observe on this passage in the roll of parliament, that "the king's right to tallage his cities, boroughs, and demesnes seems not to have been questioned by the parliament, though the commissions for setting the tallage were objected to." p. 305. But how can we believe that after the representatives of these cities and boroughs had sat, at least at times, for two reigns, and after the explicit renunciation of all right of tallage by Edward I. (for it was never pretended that the king could lay a tallage on any towns which did not hold of himself), there could have been a parliament which "did not question" the legality of a tallage set without their consent? The silence of the rolls of parliament would furnish but a poor argument. But in fact their language is expressive enough. The several ranks of lords and commons grant the fifteenth penny from the commonalty, and the tenth from the cities, boroughs, and demesnes of the king, "that our lord the king may live of his own, and pay for his expenses, and not aggrieve his people by excessive (outraiouses) prises, or otherwise." And upon this the king revokes the commission in the words of the text. Can anything be clearer than that the parliament, though in a much gentler tone than they came afterwards to assume, intimate the illegality of the late tallage? As to any other objection to the commissions, which the committee suppose to have been taken, nothing appears on the roll.

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

[103] Id.

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

[105] Case of impositions in Howell's State Trials, vol. ii. p. 371-519; particularly the argument of Mr. Hakewill. Hale's Treatise on the Customs, in Hargrave's Tracts, vol. i.

Edward III. imposed another duty on cloth exported, on the pretence that, as the wool must have paid a tax, he had a right to place the wrought and unwrought article on an equality. The commons remonstrated against this; but it was not repealed. This took place about 22 E. III. Hale's Treatise, p. 175.

[106] Rot. Parl. p. 160.

[107] p. 161, 166, 201.

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

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

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

[111] Rot. Parl. p. 304.

[112] Rot. Parl. p. 310. In the mode of levying subsidies a remarkable improvement took place early in the reign of Edward III. Originally two chief taxors were appointed by the king for each county, who named twelve persons in every hundred to assess the moveable estate of all inhabitants according to its real value. But in 8 E. III., on complaint of parliament that these taxors were partial, commissioners were sent round to compound with every town and parish for a gross sum, which was from thenceforth the fixed quota of subsidy, and raised by the inhabitants themselves. Brady on Boroughs, p. 81.

[113] Laws appear to have been drawn up, and proposed to the two houses by the king, down to the time of Edward I. Hale's Hist. of Common Law, p. 16.

Sometimes the representatives of particular places address separate petitions to the king and council; as the citizens of London, the commons of Devonshire, &c. These are intermingled with the general petitions, and both together are for the most part very numerous. In the roll of 50 Edw. III. they amount to 140.

[114] Rot. Parl. p. 239.

[115] Rot. Parl. p. 113.

[116] p. 280.

[117] "If there be any difference between an ordinance and a statute, as some have collected, it is but only this, that an ordinance is but temporary till confirmed and made perpetual, but a statute is perpetual at first, and so have some ordinances also been." Whitelocke on Parliamentary Writ, vol. ii. p. 297. See Rot. Parl. vol. iii. p. 17; vol. iv. p. 35.

[118] These may be found in Willis's Notitia Parliamentaria. In 28 E. I. the universities were summoned to send members to a great council in order to defend the king's right to the kingdom of Scotland. 1 Prynne.

[119] Rot. Parl. ii. 206.

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

[121] Id. p. 131.

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

[123] Rymer, t. v. p. 282. This instrument betrays in its language Edward's consciousness of the violent step he was taking; and his wish to excuse it as much as possible.

[124] The commons in the 17th of Edw. III. petition that the statutes made two years before be maintained in their force, having granted for them the subsidies which they enumerate, "which was a great spoiling (rancon) and grievous charge for them." But the king answered that, "perceiving the said statute to be against his oath, and to the blemish of his crown and royalty, and against the law of the land in many points, he had repealed it. But he would have the articles of the said statute examined, and what should be found honourable and profitable to the king and his people put into a new statute, and observed in future." Rot. Parl. ii. 139. But though this is inserted among the petitions, it appears from the roll a little before (p. 139, n. 23), that the statute was actually repealed by common consent; such consent at least being recited, whether truly or not.

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

[126] p. 148.

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

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

[129] 28 E. III. p. 295. Carte says, "the lords and commons, giving this advice separately, declared," &c. Hist. of England, vol. ii. p. 518. I can find no mention of the commons doing this in the roll of parliament.

[130] Rymer, p. 269.

[131] p. 114.

[132] p. 304.

[133] Most of our general historians have slurred over this important session. The best view, perhaps, of its secret history will be found in Lowth's Life of Wykeham; an instructive and elegant work, only to be blamed for marks of that academical point of honour which makes a fellow of a college too indiscriminate an encomiast of its founder. Another modern book may be named with some commendation, though very inferior in its execution, Godwin's Life of Chaucer of which the duke of Lancaster is the political hero.

[134] Rymer, p. 322.

[135] Rymer, p. 322.

[136] p. 329.

[137] Anonym. Hist. Edw. III. ad calcem Hemingford, p. 444, 448. Walsingham gives a different reason, p. 192.

[138] Rot. Parl. p. 374. Not more than six or seven of the knights who had sat in the last parliament were returned to this, as appears by the writs in Prynne's 4th Register, p. 302, 311.

[139] Walsingham, p. 200, says pene omnes; but the list published in Prynne's 4th Register induces me to qualify this loose expression. Alice Perrers had bribed, he tells us, many of the lords and all the lawyers of England; yet by the perseverance of these knights she was convicted.

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

[141] vol. iii. p. 12.

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

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

[144] Id. p. 57.

[145] See p. 47 of this volume.

[146] Nevertheless, the commons repeated it in their schedule of petitions; and received an evasive answer, referring to an ordinance made in the first parliament of the king, the application of which is indefinite. Rot. Parl. p. 82.

[147] p. 73. In Rymer, t. viii. p. 250, the archbishop of York's name appears among these commissioners, which makes their number sixteen. But it is plain by the instrument that only fifteen were meant to be appointed.

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

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

[150] The commons granted a subsidy, 7 R. II., to support Lancaster's war in Castile. R. P. p. 284. Whether the populace changed their opinion of him I know not. He was still disliked by them two years before. The insurgents of 1382 are said to have compelled men to swear that they would obey king Richard and the commons, and that they would accept no king named John. Walsingham, p. 248.

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

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

[153] p. 145.

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

[155] Ib. p. 213. It is however asserted in the articles of impeachment against Suffolk, and admitted by his defence, that nine lords had been appointed in the last parliament, viz. 9 R. II., to inquire into the state of the household, and reform whatever was amiss. But nothing of this appears in the roll.

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

[157] Upon full consideration, I am much inclined to give credit to this passage of Knyghton, as to the main facts; and perhaps even the speech of Gloucester and the bishop of Ely is more likely to have been made public by them than invented by so jejune an historian. Walsingham indeed says nothing of the matter; but he is so unequally informed and so frequently defective, that we can draw no strong inference from his silence. What most weighs with me is that parliament met on Oct. 1, 1387, and was not dissolved till Nov. 28; a longer period than the business done in it seems to have required; and also that Suffolk, who opened the session as chancellor, is styled "darrein chancellor" in the articles of impeachment against him; so that he must have been removed in the interval, which tallies with Knyghton's story. Besides, it is plain, from the famous questions subsequently put by the king to his judges at Nottingham, that both the right of retiring without a regular dissolution, and the precedent of Edward II., had been discussed in parliament, which does not appear anywhere else than in Knyghton.

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

[159] Articles had been exhibited by the chancellor before the peers, in the seventh of the king, against Spencer, bishop of Norwich, who had led a considerable army in a disastrous expedition against the Flemings, adherents to the anti-pope Clement in the schism. This crusade had been exceedingly popular, but its ill success had the usual effect. The commons were not parties in this proceeding. Rot. Parl. p 153.

[160] Rot. Parl. p. 221.

[161] Rot. Parl. p. 281.

[162] The judgment against Simon de Burley, one of those who were executed on this occasion, upon impeachment of the commons, was reversed under Henry IV.; a fair presumption of its injustice. Rot. Parl. vol. iii. p. 464.

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

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

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

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

[167] Hume has represented this as if the commons had petitioned for the continuance of sheriffs beyond a year, and grounds upon this mistake part of his defence of Richard II. (Note to vol. ii. p. 270, 4to. edit.) For this he refers to Cotton's Abridgment; whether rightly or not I cannot say, being little acquainted with that inaccurate book, upon which it is unfortunate that Hume relied so much. The passage from Walsingham in the same note is also wholly perverted; as the reader will discover without further observation. An historian must be strangely warped who quotes a passage explicitly complaining of illegal acts in order to infer that those very acts were legal.

[168] The church would perhaps have interfered in behalf of Haxey if he had only received the tonsure. But it seems that he was actually in orders; for the record calls him Sir Thomas Haxey, a title at that time regularly given to the parson of a parish. If this be so, it is a remarkable authority for the clergy's capacity of sitting in parliament.

[169] Rot. Parl. 20 R. II. p. 339. In Henry IV.'s first parliament the commons petitioned for Haxey's restoration, and truly say that his sentence was en aneantissement des custumes de la commune, p. 434. His judgment was reversed by both houses, as having passed de volonte du roy Richard en contre droit et la course quel avoit este devant en parlement. p. 480. There can be no doubt with any man who looks attentively at the passages relative to Haxey that he was a member of parliament; though this was questioned a few years ago by the committee of the house of commons, who made a report on the right of the clergy to be elected; a right which, I am inclined to believe, did exist down to the Reformation, as the grounds alleged for Nowell's expulsion in the first, of Mary, besides this instance of Haxey conspire to prove, though it has since been lost by disuse.

[170] This assembly, if we may trust the anonymous author of the Life of Richard II., published by Hearne, was surrounded by the king's troops. p. 133.

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

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

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

[174] This proceeding was made one of the articles of charge against Richard in the following terms: Item, in parliamento ultimo celebrato apud Salopiam, idem rex proponens opprimere populum suum procuravit subtiliter et fecit concedi, quod potestas parliamenti de consensu omnium statuum regni sui remaneret apud quasdam certas personas ad terminandum, dissoluto parliamento, certas petitiones in eodem parliamento porrectas protunc minime expeditas. Cujus concessionis colore personae sic deputatae processerunt ad alia generaliter parliamentum illud tangentia; et hoc de voluntate regis; in derogationem status parliamenti, et in magnum incommodum totius regni et perniciosum exemplum. Et ut super factis eorum hujusmodi aliquem colorem et auctoritatem viderentur habere, rex fecit rotulos parliamenti pro voto suo mutari et deleri, contra effectum consensionis praedictae. Rot. Parl. 1 H. IV. vol. iii. p. 418. Whether the last accusation, of altering the parliamentary roll, be true or not, there is enough left in it to prove everything I have asserted in the text. From this it is sufficiently manifest how unfairly Carte and Hume have drawn a parallel between this self-deputed legislative commission and that appointed by parliament to reform the administration eleven years before.

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

[176] Besides the contemporary historians, we may read a full narrative of these proceedings in the Rolls of Parliament, vol. iii. p. 382. It appears that Mowbray was the most offending party, since, independently of Hereford's accusation, he is charged with openly maintaining the appeals made in the false parliament of the eleventh of the king. But the banishment of his accuser was wholly unjustifiable by any motives that we can discover. It is strange that Carte should express surprise at the sentence upon the duke of Norfolk, while he seems to consider that upon Hereford as very equitable. But he viewed the whole of this reign, and of those that ensued, with the jaundiced eye of Jacobitism.

[177] Rot. Parl. 1 H. IV. p. 420, 426; Walsingham, p. 353, 357; Otterburn, p. 199; Vita Ric. II. p. 147.

[178] It is fair to observe that Froissart's testimony makes most in favour of the king, or rather against his enemies, where it is most valuable; that is, in his account of what he heard in the English court in 1395, 1. iv. c. 62, where he gives a very indifferent character of the duke of Gloucester. In general this writer is ill-informed of English affairs, and undeserving to be quoted as an authority.

[179] Rot. Parl. p. 423.

[180] If proof could be required of anything so self-evident as that these assemblies consisted of exactly the same persons, it may be found in their writs of expenses, as published by Prynne, 4th Register, p. 450.

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

[182] It is positively laid down by the asserters of civil liberty, in the great case of impositions (Howell's State Trials, vol. ii. p. 443, 507), that no precedents for arbitrary taxation of exports or imports occur from the accession of Richard II. to the reign of Mary.

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

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

[185] Carte, vol. ii. p. 640. Sir M. Hale observes that he finds no complaints of illegal impositions under the kings of the house of Lancaster. Hargrave's Tracts, vol. i. p. 184.

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

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

[188] Id. p. 301.

[189] Id. p. 302.

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

[191] Id. p. 568.

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

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

[194] Walsingham, p. 379.

[195] Walsingham, p. 210. Ruffhead observes in the margin upon this statute, 8 R. II. c. 3, that it is repealed, but does not take notice what sort of repeal it had.

[196] 15 R. II. p. 285. See, too, 16 R. II. p. 301, where the same power is renewed in H. IV.'s parliaments.

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

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

[199] 5 R. II. stat. 2, c. 5; Rot. Parl. 6 R. II. p. 141. Some other instances of the commons attempting to prevent these unfair practices are adduced by Ruffhead, in his preface to the Statutes, and in Prynne's preface to Cotton's Abridgment of the Records. The act 13 R. II. stat. 1, c. 15, that the king's castles and gaols which had been separated from the body of the adjoining counties should be reunited to them, is not founded upon any petition that appears on the roll; and probably, by making search, other instances equally flagrant might be discovered.

[200] There had been, however, a petition of the commons on the same subject, expressed in very general terms, on which this terrible superstructure might artfully be raised. p. 474.

[201] p. 626.

[202] We find a remarkable petition in 8 H. IV., professedly aimed against the Lollards, but intended, as I strongly suspect, in their favour. It condemns persons preaching against the catholic faith or sacraments to imprisonment till the next parliament, where they were to abide such judgment as should be rendered _by the king and peers of the realm_. This seems to supersede the burning statute of 2 H. IV., and the spiritual cognizance of heresy. Rot. Parl. p. 583. See, too, p. 626. The petition was expressly granted; but the clergy, I suppose, prevented its appearing on the statute roll.

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

[204] Rot. Parl. vol. iv. p. 22. It is curious that the authors of the Parliamentary History say that the roll of this parliament is lost, and consequently suppress altogether this important petition. Instead of which they give, as their fashion is, impertinent speeches out of Holingshed, which are certainly not genuine, and would be of no value if they were so.

[205] Henry VI. and Edward IV. in some cases passed bills with sundry provisions annexed by themselves. Thus the act for resumption of grants, 4 E. IV., was encumbered with 289 clauses in favour of so many persons whom the king meant to exempt from its operation; and the same was done in other acts of the same description. Rot. Parl. vol. v. p. 517.

[206] The variations of each statute, as now printed, from the parliamentary roll, whether in form or substance, are noticed in Cotton's Abridgment. It may be worth while to consult the preface to Ruffhead's edition of the Statutes, where this subject is treated at some length.

Perhaps the triple division of our legislature may be dated from this innovation. For as it is impossible to deny that, while the king promulgated a statute founded upon a mere petition, he was himself the real legislator, so I think it is equally fair to assert, notwithstanding the formal preamble of our statutes, that laws brought into either house of parliament in a perfect shape, and receiving first the assent of lords and commons, and finally that of the king, who has no power to modify them, must be deemed to proceed, and derive their efficacy, from the joint concurrence of all the three. It is said, indeed, at a much earlier time, that le ley de la terre est fait en parlement par le roi, et les seigneurs espirituels et temporels, et tout la communaute du royaume. Rot. Parl. vol. iii. p. 293. But this, I must allow, was in the violent session of 11 Ric. II., the constitutional authority of which is not to be highly prized.

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

[208] The house of commons thanked the king for pardoning Northumberland, whom, as it proved, he had just cause to suspect. 5 H. IV. p. 525.

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

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

[211] p. 547.

[212] 13 H. IV. p 624.

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

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

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

[216] This passage was written before I was aware that the same opinion had been elaborately maintained by Mr. Luders, in one of his valuable essays upon points of constitutional history.

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

[218] p. 128.

[219] p. 130.

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

[221] p. 215.

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

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

[224] p. 135.

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

[226] p. 371.

[227] 23 H. VI. vol. v. p. 102. There is rather a curious instance in 3 H. VI. of the jealousy with which the commons regarded any proceedings in parliament where they were not concerned. A controversy arose between the earls marshal and of Warwick respecting their precedence; founded upon the royal blood of the first, and long possession of the second. In this the commons could not affect to interfere judicially; but they found a singular way of meddling, by petitioning the king to confer the dukedom of Norfolk on the earl marshal. vol. iv. p. 273.

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

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

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

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

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

[233] If this were to rest upon antiquity of precedent, one might be produced that would challenge all competition. In the laws of Ethelbert, the first Christian king of Kent, at the end of the sixth century, we find this provision: "If the king call his people to him (i.e. in the witenagemot), and any one does an injury to one of them, let him pay a fine." Wilkins, Leges Anglo-Saxon. p. 2.

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

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

[236] The clergy had got a little precedence in this. An act passed 8 H. VI. c. 1, granting privilege from arrest for themselves and servants on their way to convocation.

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

[238] vol. v. p. 374.

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

[240] Upon this subject the reader should have recourse to Hatsell's Precedents, vol. i. chap. 1.

[241] Rot. Parl. vol. v. p. 337; W. Worcester, p. 415. Mr. Hatsell seems to have overlooked this case, for he mentions that of Strickland, in 1571, as the earliest instance of the crown's interference with freedom of speech in parliament. vol. i. p. 85.

[242] This parliament sat at Gloucester.

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

[244] A notion is entertained by many people, and not without the authority of some very respectable names, that the king is one of the three estates of the realm, the lords spiritual and temporal forming together the second, as the commons in parliament do the third. This is contradicted by the general tenor of our ancient records and law-books; and indeed the analogy of other governments ought to have the greatest weight, even if more reason for doubt appeared upon the face of our own authorities. But the instances where the three estates are declared or implied to be the nobility, clergy, and commons, or at least their representatives in parliament, are too numerous for insertion. This land standeth, says the Chancellor Stillington, in 7th Edward IV., by three states, and above that one principal, that is to wit, lords spiritual, lords temporal, and commons, and over that, state royal, as our sovereign lord the king. Rot. Parl. vol. v. p. 622. Thus, too, it is declared that the treaty of Staples in 1492 was to be confirmed per tres status regni Angliae rite et debite convocatos, videlicet per prelatos et clerum, nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508.

I will not, however, suppress one passage, and the only instance that has occurred in my reading, where the king does appear to have been reckoned among the three estates. The commons say, in the 2nd of Henry IV., that the states of the realm may be compared to a trinity, that is, the king, the lords spiritual and temporal, and the commons. Rot. Parl. vol. iii. p. 459. In this expression, however, the sense shows that by estates of the realm they meant members, or necessary parts, of the parliament.

Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length, that the three estates are king, lords, and commons, which seems to have been a current doctrine among the popular lawyers of the seventeenth century. His reasoning is chiefly grounded on the baronial tenure of bishops, the validity of acts passed against their consent, and other arguments of the same kind; which might go to prove that there are only at present two estates, but can never turn the king into one.

The source of this error is an inattention to the primary sense of the word estate (status), which means an order or condition into which men are classed by the institutions of society. It is only in a secondary, or rather an elliptical application, that it can be referred to their representatives in parliament or national councils. The lords temporal, indeed, of England are identical with the estate of the nobility; but the house of commons is not, strictly speaking, the estate of commonalty, to which its members belong, and from which they are deputed. So the whole body of the clergy are properly speaking one of the estates, and are described as such in the older authorities, 21 Ric. II. Rot. Parl. vol. iii. p. 348, though latterly the lords spiritual in parliament acquired, with less correctness, that appellation. Hody on Convocations, p. 426. The bishops, indeed, may be said, constructively, to represent the whole of the clergy, with whose grievances they are supposed to be best acquainted, and whose rights it is their peculiar duty to defend. And I do not find that the inferior clergy had any other representation in the cortes of Castile and Aragon, where the ecclesiastical order was always counted among the estates of the realm.

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

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

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

[248] Rot. Parl. vol. v. p. 7. It appears by a case in the Year Book of the 33rd of Henry VI., that, where the lords made only some minor alterations in a bill sent up to them from the commons, even if it related to a grant of money, the custom was not to remand it for their assent to the amendment. Brooke's Abridgment: Parliament. 4. The passage is worth extracting, in order to illustrate the course of proceeding in parliament at that time. Case fuit que Sir J. P. fuit attaint de certeyn trespas par acte de parliament dont les commons furent assentus, que sil ne vient eins per tiel jour que il forfeytera tiel summe, et les seigneurs done plus longe jour, et le bil nient rebaile al commons arrere; et per Kirby, clerk des roles del parliament, l'use del parliament est, que si bil vient primes a les commons, et ils passent ceo, il est use d'endorser ceo en tiel forme, Soit bayle as seigniors; et si les seigniors _ne le roy_ ne alteront le bil, donques est use a liverer ceo al clerke del parliamente destre enrol saunz endorser ceo.... Et si les seigniors volent alter un bil in ceo que poet estoyer ore le bil, ils poyent saunz remandre ceo al commons, come si les commons graunte poundage, pur quatuor ans, et les grantent nisi par deux ans, ceo ne serra rebayle al commons; mes si les commons grauntent nisi pur deux ans, et les seigneurs pur quatre ans, la ceo serra reliver al commons, et en cest case les seigniors doyent faire un sedule de lour intent, ou d'endorser le bil en ceste forme, Les seigneurs ceo assentent pur durer par quatuor ans; et quant les commons ount le bil arrere, et ne volent assenter a ceo, ceo ne poet estre un actre; mes si les commons volent assenter, donques ils indorse leur respons sur le mergent ne basse deins le bil en tiel forme, Les commons sont assentans al sedul des seigniors, a mesme cesty bil annexe, et donques sera bayle ad clerke del parliament, ut supra. Et si un bil soit primes liver al seigniors, et le bil passe eux, ils ne usont de fayre ascun endorsement, mess de mitter le bil as commons; et donques, si le bil passe les commons, il est use destre issint endorce, Les commons sont assentants; et ceo prove que il ad passe les seigniors devant, et lour assent est a cest passer del seigniors; et ideo cest acte supra nest bon, pur ceo que ne fuit rebaile as commons.

A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's edit.), that a subsidy granted by the commons without assent of the peers is good enough. This cannot surely have been law at that time.

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

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

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

[252] 4 Prynne, p. 261.

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

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

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

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

[257] 3 Prynne's Register, p. 187. This hypothesis, though embraced by Prynne, is, I confess, much opposed to general opinion; and a very respectable living writer treats such an interpretation of the statute 7 H. IV. as chimerical. The words cited in the text, "as others," mean only, according to him, suitors not duly summoned. Heywood on Elections, vol. i. p. 20. But, as I presume, the summons to freeholders was by general proclamation; so that it is not easy to perceive what difference there could be between summoned and unsummoned suitors. And if the words are supposed to glance at the private summonses to a few friends, by means of which the sheriffs were accustomed to procure a clandestine election, one can hardly imagine that such persons would be styled "duly summoned." It is not unlikely, however, that these large expressions were inadvertently used, and that they led to that inundation of voters without property which rendered the subsequent act of Henry VI. necessary. That of Henry IV. had itself been occasioned by an opposite evil, the close election of knights by a few persons in the name of the county.

Yet the consequence of the statute of Henry IV. was not to let in too many voters, or to render elections tumultuous, in the largest of English counties, whatever it might be in others. Prynne has published some singular sheriff's indentures for the county of York, all during the interval between the acts of Henry IV. and Henry VI., which are sealed by a few persons calling themselves the attorneys of some peers and ladies, who, as far as appears, had solely returned the knights of that shire. 3 Prynne, p. 152. What degree of weight these anomalous returns ought to possess I leave to the reader.

[258] The majority of prescriptive boroughs have prescriptive corporations, which carry the legal, which is not always the moral, presumption of an original charter. But "many boroughs and towns in England have burgesses by prescription, that never were incorporated." Ch. J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders thinks, I know not how justly, that in the age of Edward I., which is most to our immediate purpose, "there were not perhaps thirty corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I must allow that, in the opinion of many sound lawyers, the representation of unchartered, or at least, unincorporated boroughs was rather a _real_ privilege, and founded upon tenure, than one arising out of their share in public contributions. Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is very obscure; and perhaps the more so, because the learning directed towards it has more frequently been that of advocates pleading for their clients than of unbiassed antiquaries. If this be kept in view, the lover of constitutional history will find much information in several of the reported cases on controverted elections; particularly those of Tewksbury and Liskeard, in Peckwell's Reports, vol. i.

[259] Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in Peckwell's Reports, vol. i. p. 178.

[260] Littleton, s. 162, 163.

[261] Brady, p. 97.

[262] Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even argues that this power of omitting ancient boroughs was legally vested in the sheriff before the 5th of Richard II.; and though the language of that act implies the contrary of this position, yet it is more than probable that most of our parliamentary boroughs by prescription, especially such as were then unincorporated, are indebted for their privileges to the exercise of the sheriff's discretion; not founded on partiality, which would rather have led him to omit them, but on the broad principle that they were sufficiently opulent and important to send representatives to parliament.

[263] Willis, Notitia Parliamentaria, vol. i. preface, p. 35.

[264] p. 117.

[265] It is a perplexing question whether freeholders in socage were liable to contribute towards the wages of knights; and authorities might be produced on both sides. The more probable supposition is, that they were not exempted. See the various petitions relating to the payment of wages in Prynne's fourth Register. This is not unconnected with the question as to their right of suffrage. See p. 115 of this volume. Freeholders within franchises made repeated endeavours to exempt themselves from payment of wages. Thus in 9 H. IV. it was settled by parliament that, to put an end to the disputes on this subject between the people of Cambridgeshire and those of the Isle of Ely, the latter should pay 200_l._ and be quit in future of all charges on that account. Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that franchise seem to have purchased the right of suffrage, which they still enjoy, though not, I suppose, suitors to the county-court. In most other franchises, and in many cities erected into distinct counties, the same privilege of voting for knights of the shire is practically exercised; but whether this has not proceeded as much from the tendency of returning officers and of parliament to favour the right of election in doubtful cases, as from the merits of their pretensions, may be a question.

[266] The wages of knights and burgesses were first reduced to this certain sum by the writs De levandis expensis, 16 E. II. Prynne's fourth Register, p. 53. These were issued at the request of those who had served, after the dissolution of parliament, and included a certain number of days, according to the distance of the county whence they came, for going and returning. It appears by these that thirty-five or forty miles were reckoned a day's journey; which may correct the exaggerated notions of bad roads and tardy locomotion that are sometimes entertained. See Prynne's fourth Register, and Willis's Notitia Parliamentaria, passim.

The latest entries of writs for expenses in the close rolls are of 2 H. V.; but they may be proved to have issued much longer; and Prynne traces them to the end of Henry VIII.'s reign, p. 495. Without the formality of this writ a very few instances of towns remunerating their burgesses for attendance in parliament are known to have occurred in later times. Andrew Marvel is commonly said to have been the last who received this honourable salary. A modern book asserts that wages were paid in some Cornish boroughs as late as the eighteenth century. Lysons's Cornwall, preface, p. xxxii; but the passage quoted in proof of this is not precise enough to support so unlikely a fact.

[267] 3 Prynne, p. 165.

[268] 4 Prynne, p. 317.

[269] 4 Prynne, p. 320.

[270] 3 Prynne, p. 241.

[271] 5 R. II. stat. ii. c. 4.

[272] Luders's Reports, vol. i. p. 15. Sometimes an elected burgess absolutely refused to go to parliament, and drove his constituents to a fresh choice. 3 Prynne, p. 277.

[273] 3 Prynne, p. 252.

[274] 3 Prynne, p. 257, de assensu totius communitatis praedictae elegerunt R. W.; so in several other instances quoted in the ensuing pages.

[275] Brady on Boroughs, p. 132, &c. Mr. Allen, than whom no one of equal learning was ever less inclined to depreciate popular rights, inclines more than we should expect to the school of Brady in this point. "There is reason to believe that originally the right of election in boroughs was vested in the governing part of these communities, or in a select portion of the burgesses; and that, in the progress of the house of commons to power and importance, the tendency has been in general to render the elections more popular. It is certain that for many years burgesses were elected in the county courts, and apparently by delegates from the boroughs, who were authorised by their fellow-burgesses to elect representatives for them in parliament. In the reigns of James I. and Charles I., when popular principles were in their greatest vigour, there was a strong disposition in the house of commons to extend the right of suffrage in boroughs, and in many instances these efforts were crowned with success." Edin. Rev. xxviii. 145. But an election by delegates chosen for that purpose by the burgesses at large is very different from one by the governing part of the community. Even in the latter case, however, this part had generally been chosen, at a greater or less interval of time, by the entire body. Sometimes, indeed, corporations fell into self-election and became close.

[276] Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p. 224, &c.

[277] In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc comitatu commorantes, duos homines de comitatu Rutland, de discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But this deficiency of actual knights soon became very common. In 19 E. II. there were twenty-eight members returned from shires who were not knights, and but twenty-seven who were such. The former had at this time only two shillings or three shillings a day for their wages, while the real knights had four shillings. 4 Prynne, p. 53. 74. But in the next reign their wages were put on a level.

[278] Rot. Parl. vol. ii. p. 310.

[279] Rot. Parl. 1 H. V. c. 1.

[280] See the case of Dublin university in the first volume of Peckwell's Reports of contested elections. Note D, p. 53. The statute itself was repealed by 14 G. III. c. 58.

[281] By 23 H. VI. c. 15, none but gentlemen born, generosi a nativitate, are capable of sitting in parliament as knights of counties; an election was set aside 39 H. VI. because the person returned was not of gentle birth. Prynne's third Register. p. 161.

[282] Willis, Notitia Parliamentaria, Prynne's fourth Register, p. 1184. A letter in that authentic and interesting accession to our knowledge of ancient times, the Paston collection, shows that eager canvass was sometimes made by country gentlemen in Edward IV.'s reign to represent boroughs. This letter throws light at the same time on the creation or revival of boroughs. The writer tells Sir John Paston, "If ye miss to be burgess of Malden, and my lord chamberlain will, ye may be in another place; there be a dozen towns in England that choose no burgess, which ought to do it: ye may be set in for one of those towns an' ye be friended." This was in 1472. vol. ii. p. 107.

[283] Glanvil's Reports of Elections, edit. 1774, Introduction, p. xii.

[284] Prynne's third Register, p. 171.

[285] 28 E. I. c. 8; 9 E. II. It is said that the sheriff was elected by the people of his county in the Anglo-Saxon period; no instance of this however, according to lord Lyttelton, occurs after the Conquest. Shrievalties were commonly sold by the Norman kings. Hist. of Henry II. vol. ii. p. 921.

[286] Vita Ricardi II. p. 85.

[287] Otterbourne, p. 191. He says of the knights returned on this occasion, that they were not elected per communitatem, ut mos exigit, sed per regiam voluntatem.

[288] Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.

[289] Prynne's second Reg. p. 450.

[290] vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.

[291] Upon this dry and obscure subject of inquiry, the nature and constitution of the house of lords during this period, I have been much indebted to the first part of Prynne's Register, and to West's Inquiry into the Manner of creating Peers; which, though written with a party motive, to serve the ministry of 1719 in the peerage bill, deserves, for the perspicuity of the method and style, to be reckoned among the best of our constitutional dissertations.

[292] Baronies were often divided by descent among females into many parts, each retaining its character as a fractional member of a barony. The tenants in such case were said to hold of the king by the third, fourth, or twentieth part of a barony, and did service or paid relief in such proportion.

[293] Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. 28, 33. That a baron could only be tried by his fellow barons was probably a rule as old as the trial per pais of a commoner. In 4 E. III. Sir Simon Bereford having been accused before the lords in parliament of aiding and advising Mortimer in his treasons, they declared with one voice that he was not their peer; wherefore they were not bound to judge him as a peer of the land; but inasmuch as it was notorious that he had been concerned in usurpation of royal powers and murder of the liege lord (as they styled Edward II.), the lords, as judges of parliament, by assent of the king in parliament, awarded and adjudged him to be hanged. A like sentence with a like protestation was passed on Mautravers and Gournay. There is a very remarkable anomaly in the case of Lord Berkley, who, though undoubtedly a baron, his ancestors having been summoned from the earliest date of writs, put himself on his trial in parliament, by twelve knights of the county of Gloucester. Rot. Parl. vol. ii. p. 53; Rymer, t. iv. p. 734.

[294] Prynne, p. 142, &c.; West's Inquiry.

[295] Prynne, p. 141.