^ "'S. PRINCETON, N. J. Division . . Section • . Shelf. Number.. .V,.3. CONSTITUTIONAL HISTOEY OF ENGLAND STUBBS VOL. III. a HonUon MACMILLAN AND CO. PUBLISHERS TO THE UNIVERSITY Oxford €hxtxition '§xm ^txm THE CONSTITUTIONAL HISTORY OF ENGLAND IN ITS ORIGIN AND DEVELOPMENT BY WILLIAM STUBBS, M.A. Regius Professor of Modem History VOL. Ill AT THE CLARENDON PRESS M DCCC LXXVIII [All rights reserved'^ CONTENTS. CHAPTER Xyill. LANCASTER AND YOEK. 622. Character of the period, p. 2. 623. Plan of the Chapter, p. 5. 624. The Revolution of 1399, P* ^* Formal recognition of the new- Dynasty, p. 9. 626. Parliament of 1399, p. 15. 627- Conspiracy of the Earls, p. 25. 628. Beginning of difficulties, p. 26. 629. Parliament of 1401, p. 28. 630. Financial and political difficulties, p. 34. 631. Parliament of 1402, p. 36. 632. Rebellion of Hotspur, p. 38. 633. Par- liament of 1404, p. 41. 634. The unlearned Parliament, p. 46. 635. Rebellion of Northumberland, p. 48. 636. The long Parliament of 1406, p. 52. 637. Parties formed at Covirt, p. 57. 638. Parliament at Gloucester, 1407, p. 60. 639. Arundel's administration, p. 62. 640. Parliament of 1410, p. 63. 641. Administration of Thomas Beaufort, p. 65. 642. Parliament of 141 1, p. 67. 643. Death of Henry IV, p. 70. 644. Character of Henry V, p. 72. 645. Change of ministers, p. 76. 646. Parliament of 141 3, p. 78. 647. Sir John Oldcastle, p. 78. 648. Parliaments of 1414, p. 81. 649. War with France, p. 86. 650. The remaining Parliaments of the reign, p. 86. 651. The King's last expedition and death, p. 91. 652. Bedford and Gloucester, p, 94. 653. Arrangement for the minority of Henry VI, p. 96. 654. Impolitic conduct of Gloucester, p. 98. 655. Quarrel with Bishop Beaufort, p. 101. 656. Visit of Bedford, p. 102. 657. Gloucester's attempt to govern, p. 106. 658. Renewed attack on the Cardinal, p. 110. 659. Henry's visit to France and change of ministers, p. 112. 660. Continu- ation of the quarrel, p. 114. 661. Bedford's second visit, p. 116. 662. State of the government after Bedford's death, p. 121. 663. Approach- ing end of the war, p. 125. 664. Character of Henry VI, p. 128. 665. The king's marriage, p. 131. 666. Death of Gloucester and Beaufort, p. 135. 667. Administration of Suffolk, p. 140. 668. Fall of Suffolk, p. 144. 669. Cade's rebellion, p. 150. 670. Struggle of Somerset and York, p. 153. 671. First rising of the Yorkists, p. 160. 672. First regency of the Duke of York, p. 163. 673. Results of the battle of St. Alban's, p. 170. 674. Second regency of York, p. 172. vi Contents, 675. Sole rule of Henry and Margaret, p. 174. 676. The war of Lancaster and York, p. 177. 677. The claim of York to the crown, p. 184, 678. Accession of Edward IV, p. 188. 679. Edward's first Parliaments, p. 194. 680. The close of the struggle, p. 198. 681. The struggle of the Nevilles, p. 200. 682. Edward's supremacy, p. 212. 683. Reign of Edward V, p. 220. 684. Richard III, p. 225. 685. Fall of Richard, p. 232. 686. The claim of the house of Lancaster to the name of Constitutional Rulers, p. 233. 687. Parliamentary theory under Lancaster, p. 237. 688. Fortescue's scheme of government, p. 240. 689. Practical illustration of constitutional working, p. 246. 690. The council, p. 247. 691. The elections to the House of Commons, p. 256. 692. Freedom of debate in the House of Commons, p. 259. 693. Money grants, p. 263. 694. Interference with the Royal household, p. 264. 695. Want of governance, p. 268. 696. Case for and against the House of York as rulers, p. 273. CHAPTER XIX. THE CLERGY, THE KING, AND THE POPE. 697. Problem of Church and State, p. 287. 698. Plan of the chapter, p. 290. 699. The clerical estate or spiritualty, p. 290. 700. Relations between the Pope and the Crown, p. 291. 701. Appointment of Bishops, p. 295. 702. The pall, p. 296. 703. Legations, p. 298. 704. Papal interference in election of bishops, p. 302. 705. Elections in the thirteenth century, p. 305. 706. The pope's claim to confer the temporalities, p. 307. 707. Papal provisions, p. 310. 708. Legislation on provisions, p. 314. 709. The compromise on elections, p. 316. 710. Elections to abbacies, p. 318. 711. The ecclesi- astical assem.blies, p. 319. 712. Ecclesiastical Legislation ; for the clergy by the clergy, p. 322. 713. By the clergy for the laity, p. 325. 714. By parliament for the clergy, p. 326. 715. Statute of provisors, p. 327. 716, Statute of praemunire, p. 330. 717. Legislation in parlia- ment for the national church, p. 332. 718. Ecclesiastical Taxation ; by the pope, p. 335. 719. Taxation by convocation, p. 337. 720. Attempt in Parliament to tax the clergy, p. 340. 721. Of the clergy to tax the laity, p. 340. 722. Ecclesiastical Judicature ; of the king's courts over the clergy, p. 341. 723. Of the court Christian ; in temporal matters, p. 344. 724. In disciplinary cases, p. 346, 725. Over ecclesi- astics, p, 347. 726. Appeals to Rome, p. 348. 727. Legislation against heresy, p. 353. 728. Social importance of the clergy, p. 365. 729. Intellectual and moral influence of the clergy, p. 370. Contents, Vll CHAPTER XX. PAELIAMENTARY ANTIQUITIES. 730. Parliamentary usages, definite or obscure, p. 375. 731. Plan of the chapter, p. 377. 732. Choice of the day for Parliament, p. 377. 733. Annual Parliaments, p. 380. 734. Length of notice before holding parliament, p. 381. 735. Choice of the place of session, p. 382. 736. The palace of Westminster, p. 383. 737. Parliaments out of London, p. 386. 738. Share of the council in calling a parliament, p. 388. 739. Issue and form of writs, p. 389. 740. Writs of summons to the Lords, p. 391. 741. Writs of the justices, p. 395. 742. Writs to the Sheriff:} for elections, p. 396. 743. County elections, p. 403. 744. Return on indenture, p. 407. 745. Borough elections, p. 413. 746. Contested and disputed elections, p. 421. 747. Manucaption and expenses, p. 425. 748. Meeting of parliament and opening of the session, p. 426. 749. Separation of the houses, p. 430. 750. House of Lords, p. 431. 751. Ranks of the peerage, p. 433. 752. Number of lords temporal, p. 442. 753. Number of lords spiritual, p. 443. 754. Justices in the House of Lords, p. 445. 755. Clerical proctors, p. 446. 756. Numbers and distribution of seats in the House of Commons, p. 447. 757. Clerks, p. 451. 758. The Speaker of the Commons, p. 452. 759. Business laid before the houses by the king, p. 456. 760. Supply and account, p. 457. 761. Form of the grant, p. 458. 672. Proceeding in legislation, p. 459. 763. The Common petitions, p. 461. 764. Form of statutes, p. 464. 765. Details of procedure, p. 466. 766. Sir Thomas Smith's description of a session, p. 467. 767. Judicial power of the lords, p. 476. 768. Prorogation, p. 480. 769. Dissolution, p. 482. 770. Writ of expenses, p. 483. 771. Dis- tinctions of right and privilege, p. 485. 772. Proxies of the Lords, p. 487. 773. Right of protest, p. 489. 774. Freedom of debate, p. 489. 775. Freedom from arrest, p. 494. 776. Privileges of peerage, p. 497. CHAPTER XXL SOCIAL AND POLITICAL INFLUENCES AT THE CLOSE OF THE MIDDLE AGES. 777. Plan of the chapter, p. 500. 778. Variations of the political balance throughout English History, p. 502. 779. The Kings : popvdar regard for the Plantagenets, p. 506. 780. Growth of loyalty, p. 508. 781. Doctrine of legitimism, p. 510. 782. Material and legal securities, viii Contents, p. 510. 783. Extent of the royal estates, p. 511. 784. Eeligious duty of obedience, p. 512. 785. Fealty, homage, and allegiance, p. 514. 786. Law of treason, p. 516. 787. The Clekgt, p. 520. 788. Weak- ness of their spiritual position, p. 523. 789. Weakness of their temporal position, p. 524. 790. The Baronage : their wealth and extent of property, p. 525. 791. Their territorial distribution, p. 527. 792. Class distinctions, p. 530. 793. Livery and maintenance, p. 531. 794. Heraldic distinctions, p. 533. 795. Fortified houses and parks, p. 536. 796. Great households, p. 538. 797. Service by indenture, p. 539. 798. Good and evil results of baronial leadership, p. 542. 799. Baronial position of the bishops, p. 542. 800. The Knights and Squires, p. 544. 801. Their relation to the barons, p. 548. 802. Independent attitude of the knights in parliament, p. 549. 803. The Yeomanry, p. 551. 804. Expenditure of the squire and tenant farmer, p. 554. 805. The valetti in parliament, p. 555. 806. The yeomen electors, p. 556. 807. The Boroughs, p. 558. 808. The merchant guild and its developments, p. 560. 809. Constitution of London, p. 567. 810. Importance and growth of companies, p. 572. 811. Other municipalities, p. 577. 812. Politics in the boroughs, and of their representatives, p. 588. 813. Poli- tical capabilities of country and town, merchant, tradesman, and artificer, p. 592. 814. The life of the burgher, p. 594. 815. Connexion with the country and with other classes, p. 596. 816. Artisans and labourers, p. 598. 817. The poor, p. 599. 818. The villeins, p. 603. 819. The chance of rising in the world. Education, p. 606. 820. Class anta- gonisms, p. 610. 821. Concluding reflexions. National character, p. 612. 822. Transition, p. 614. 823. Some lessons of history, p. 617. CHAPTER XYIII. LANCASTER AND YORK. 622. Character of the period.— 623. Plan of the Chapter.— 624. The Revolution of 1399. — formal recognition of the new Dynasty.— 626. Parliament of 1399. — 627. Conspiracy of the Earls. — 628. Be- ginning of difficulties. — 629. Parliament of 1 40 1. — 630. Fiuancial and political difficulties. — 631. Parliament of 1402.— 632. EebellioD of Hotspur. — 633. Parliament of 1404. — 634. The unlearned Parlia- ment.— 635. Rebellion of Northumberland. — 636. The long Parliament of 1406. — 637- Parties formed at court. — 638. Parliament at Glou- cester, 1407. — 639. Arundel's administration. — 640. Parliament of 1410. — 641. Administration of Thomas Beaufort. — 642. Parliament of 141 1. —643. Death of Henry lY.— 644. Character of Henry V. — 645. Change of ministers. — 646. Parliament of 1413. — 647. Sir John Oldcastle. — 648. Parliaments of 1414. — 649. War with France. — 650. The remaining Parliaments of the reign. — 651. The King's last expedition and death. — 652. Bedford and Gloucester. — 653. Arrange- ment for the minority of Henry VI. — 654. Impolitic conduct of Gloucester. — 655. Quarrel with Bishop Beaufort. — 656. Visit of Bedford. — 657. Gloucester's attempt to govern. — 658. Renewed at- tack on the Cardinal. — 659. Henry's visit to France and change of ministers. — 660. Continuation of the quarrel. — 661. Bedford's second visit. — 662. State of the govermnent after Bedford's death. — 663. Approaching end of the war. — 664. Character of Henry YI. — 665. The king's marriage. — 666. Death of Gloucester and Beaufort. — 667- Administration of Suffolk.— 668. Fall of Suffolk.— 669. Cade's re- bellion.— 670. Struggle of Somerset and York. — 671. First rising of the Yorkists. — 672. First regency of the Duke of York. — 673. Results of the battle of S. Alban's. — 674. Second regency of York. — 675. Sole rule of Henry and Margaret. — 676. The war of Lancaster and York. — 677. The claim of York to the crown. — 678. Accession of Edward IV.— 679. Edward's first Parliaments.— 680. The close of the struggle.— 681. The struggle of the Nevilles.— 682. Edward's supremacy.— 683. Reign of Edward V.— 684. Richard III.— 685. Fall of Richard. — 686. The claim of the house of Lancaster to the VOL. III. B Constitutional History. [chap. name of Constitutional Rulers. — 687. Parliamentary theory under Lancaster. — 688. Fortescue's scheme of government. — 689. Practical illustration of constitutional working.— 690. The council. — 691. Elec- tions to the House of Commons. — 692. Freedom of debate in the House of Commons. — 693. Money grants. — 694. Interference with the Royal Household. — 695. Want of govA-nance. — 696. Case for and against the House of York as rulers. Theflfteeuth 622. If the Only object of Constitutional History were the century not . /•-r»T a period of investigation of the origin and powers oi Jrarliament, the study tionai de- of the subject might be suspended at the deposition of Richard II, to be resumed under the Tudors. During a great portion of the intervening period the history of England contains little else than the details of foreign wars and domestic struggles, in which parliamentary institutions play no prominent part; and, upon a superficial view, their continued existence may seem to be a result of their insignificance among the ruder expedients of arms, the more stormy and spontaneous forces of personal, political, and religious passion. Yet the parliament has a history of its own throughout the period of turmoil. It does not indeed develope any new powers, or invent any new mechanism ; its special history is either a monotonous detail of formal proceed- ings, or a record of asserted privilege. Under the monotonous detail there is going on a process of hardening and sharpening, a second almost imperceptible stage of definition, which, when new life is infused into the mechanism, will have no small effect in determining the ways in which that new life will work. In the record of asserted privilege may be traced the flashes of a consciousness that shew the forms of national action to be no mere forms, and illustrate the continuity of a sense of earlier greatness and of an instinctive looking towards a greater destiny. And this is nearly all. The parliamentary constitution lives through the epoch, but its machinery and its functions do not much expand ; the weapons which are used by the politicians of the sixteenth and seventeenth centuries are taken, with little attempt at improvement or adaptation, from the armoury of the fourteenth. The intervening age has rather conserved than multiplied them or extended their usefulness. XVIII.] Close of the Middle Ages. 3 Yet the interval witnessed a series of chanjjjes in national life, ^'^^\ iiisto- ° ^ rical import mind, and character, in the relations of classes, and in the ance of the ' ' period of balance of political forces, far greater than the English race transition, has gone through since the Norman conquest, greater in some respects than it has experienced since it became a consolidated, Christian nation. Of these changes the Keformation, with its attendant measures, was the greatest ; but there were others which led to and resulted from the religious change. Such was that recovered strength of the monarchic principle, which, in England as on the Continent, marked the opening of a new era, and which, although in England it resulted from causes peculiar to England, from the exhaustion of all energies except those of the crown, whilst abroad it resulted from the concentration of great territorial possessions in the hands of a few great kings, seemed almost a necessary antecedent to the new conformation of European politics, and to the share which England was to take in them. Such again was the liberation of internal forces, political as well as religious, which followed the disrup- tion of ecclesiastical unity, and which is perhaps the most important of all the phenomena which distinguish modern from medieval history. Such was the transformation of the baronage of early England into the nobility of later times, a transforma- tion attended by changes in personal and political relations which make it more difficult to trace the identity of the peerage than the continuous life of clergy or commons. The altered position of the church, apart from Keformation influences, is another mark of a new period; the estate of the clergy, deprived of the help of the older baronage, now almost extinguished, and set in antagonism to the new nobility that is founded upon the spoils of the church, tends ever more and more to lean upon the royal power which tends ever more and more to use the church for its own ends, and to weaken the hold of the church upon the commons, whenever the interests of the commons and of the crown are seen to be in opposition. Partly parallel to these, partly resulting from them, partly also arising fi-om a fresh impulse of its own liberated and directed by these causes, is the changed position of the commons : the third estate B 2 4 Constitutional History. [chap. cnmiiirein now cruslied, HOW flattered.; now consolidated, now divided; the ))Osition , i i i • < i • j. of the Com- now encouraged, now repressed; but escapnig the internecine lUOllS. enmities that destroy the baronage, learning wisdom by their mistakes and gaining freedom wlien it is rid of their leadership ; rising by its own growing strength from the prostration in which it has lain, with the other two estates, at the feet of the Tudors, all the stronger because it has itself only to rely upon and has springs of independence in itself, which are not in either clergy or baronage ; — the estate of the commons is prepared to enter on the inheritance, towards which the two elder estates have led it on. The crisis to which these changes tend is to deter- mine in that struggle between the crown and the commons which the last two centuries have decided. Workings of The causes which worked these changes begin from the \\\ the oi)ening of the sixteenth century to display themselves upon a century. lighter and broader stage, in more direct and evident connexion with their greater results. But they had been working long and deeply in the fifteenth century ; and our task, one object of which is to trace the continuity of national life through this age of obscurity and disturbance, necessarily includes some examina- tion into their action, into the relations of church and state, of the crown and the three estates, the balance of forces in the corporate body, and the growth in the several estates by which that balance was made to vary without breaking up the unity PlaTiofthe or destroying the identity of the whole. Having traced this working up to the time at which the new struggles of consti- tutional life begin, the point at which modern and medieval history seem to divide, we shall have accomplished, or done our best to accomplish, the promise of oiir title, and have told the origin and development of the Constitutional History of England. Parliamentary institutions during the fourteenth century are the main if not the sole subject of Constitutional History. From this point, at which parliamentary institutions seem to have" to a great extent, moulded themselves, and parliamentary ideas have ripened, we shall have to recur to our .earlier plan, and endeavour to trace more generally the workings of national life chapter. XVIII.] Flan of the Chapter. 5 that gave substance and reality to those forms, that lay quiet under them wlien they seemed to he dormant, and that fought in them when the time came for it to arise and go down to the battle. 623. The object of the present chapter will be to trace the Plot of the history of internal politics in England from tlie accession of Henry IV to the fall of Richard III : not that the period pos- sesses a distinct joolitical plot corresponding with its drama of dynastic history, but that from its close begins the more pro- minent action of the new influences that colour later history. A more distinct political plot, a more definite constitutional period, would be found by extending the scope of the chapter to tlie beginning of the assumed dictatorship of Henry YIII. But to attempt that would be to trench upon the domain of later history, which must be ^vl•itten or read from a new standing point. The battle of Bosworth field is the last act of a long tragedy or series of tragedies, a trilogy of unequal interest and varied proportions, the unity of which lies in the struggle of the great houses for the crown. The embers of the strife are not indeed extinguished then, but they survive only in the region of personal enmities and political cruelties. The strife of York and Lancaster is then allayed ; the particular forces that have roused the national energies have exhausted themselves. From that ])oint new agencies begin to work, the origin of which we may trace, but the growth and mature action of which must be left to other hands. The history of tlie three Lancastrian reigns has a double inn»rt mce interest ; it contains not only the foundation, consolidation, ami Lnncastriyn destruction of a fabric of dynastic power, but parallel with it, the trial and failure of a great constitutional experiment ; a premature testing of the strength of the jDarliamentary system. The system does not indeed break under the strain, but it bends and warps so as to show itself unequal to the burden ; and, in- stead of arbitrating between the other forces of the time, the pai - liamentary constitution finds itself either superseded altogether, or reduced to the position of a mere engine which those forces can manipulate at will. The sounder and stronger elements of 6 Constitutional History. [chap. English life seem to be exhausted, and the dangerous forces avail themselves of all weapons with equal disregard to the result. It is strange that the machinery of state suffers after all so little. But it is useless to anticipate now the inferences that will repeat themselves at every stage of the story. Goodau- 624. Although, as we have seen, the deposition of Richard II the constitu- and the accession of Henry IV were not the pure and legitimate accession of result of a series of constitutional workings, there were many ' reasons for regarding the revolution of which they were a part as only slightly premature ; the constitutional forces appeared ripe, although the particular occasion of their exertion was to a certain extent accidental, and to a certain extent the result of private rather than public causes ^. Richard's tyranny deserved deposition had there been no Henry to revenge a private wrong ; Henry's qualifications for sovereign power were adequate, even if he had not had a great injury to avenge, and a great cause to defend. The experiment of governing England constitutionally seemed likely to be fairly tried. Henry could not, without discarding all the principles that he had ever professed, even attempt to rule as Richard II and Edward III had ruled. He had great personal advantages ; if he were not spontaneously chosen by the nation, he was enthusiastically Avelcomed by them ; he was in the closest alliance with the clergy ; and of the greater baronage there was scarcely one who could not count cousinship with him. He was reputed to be rich, not only on the strength of his great inheritance, but in the possession of the treasure which Richard had amassed to his own ruin. He was a man of high reputation for all the virtues of chivalry and morality, and ^ 'kynge Henry was admytte Unto the croune of Englande, that did aniounte Not for desert nor yet for any witte, Or might of him selfe in otherwyse yet. But only for the castigation Of king Richardes wicked perversacion, Of which the realme then yrked everychone And full glad were of his deposicion, And glad to croune kyng Henry so anone, With all theyr hertes and whole afFeccion For hatred more of kyng Richardes defection Then for the love of kyng Henry that daye : So chaunged tlien the people on hym aye.' — Hardyng, p, 409. XVIII.] Character of Henry IV. 7 possessed, in his four young sons, a pledge to assure the nation position of that it would not soon be troubled with a question of succession, or endangered by a policy that would risk the fortunes of so noble a posterity. Yet the seeds of future difficulties were con- tained in every one of the advantages of Henry's position ; difficulties that would increase with the growth and consolida- tion of his rule, grow stronger as the d}Tiasty grew older, and in the end prove too great for both the men and the system. The character of Henry IV has been drawn by later historians Difficulty of ir«- f i- T • reading his with a denniteness oi outline altogether disproportioned to the character. details furnished by contemporaries. Like the whole period on which we are entering, the portrait has been affected by contro- versial views and political analogies. If the struggle between Lancaster and York obscured the lineaments of the man in the view of partisans of the fifteenth century, the questions of legitimacy, usurpation, divine right and indefeasible royalty, obscured them in the minds of later writers. There is scarcely one in the whole line of our kings of whose personality it is so difficult to get a definite idea. The impression produced by his earlier career is so inconsistent with that derived from his later life and from his conduct as king, that they seem scarcely recon- cilable as parts of one life. "We are tempted to think that, like other men who have taken part in great crises, or in whose life a great crisis has taken place, he underwent some deep change of character at the critical point. As Henry of Derby he is the adventurous, chivalrous cmsader ; prompt, energetic, laborious ; the man of impulse rather than of judgment ; led sometimes by his uncle Gloucester, sometimes by his father ; yet independent in action, averse to bloodshed, strong in constitutional beliefs. If with Gloucester and Arundel he is an appellant in 1^88, it isHischarac- . , , . . , ' • c ^ o . . terbeforehis against the unconstitutional position of the ravourites ; if, against accession. Gloucester and Arundel in 1397, he takes part with John of Gaunt and Richard, it is because he believes his old allies to have crossed the line which separates legal opposition from treason and conspiracy. On both these critical occasions he shows good faith and honest intent rather than policy or fore- sight. As king we find him suspicious, cold-blooded, and politic, 8 Constitutional History. [chap. te?in iaSr' ^^^^^^^cidetl in action, cautious and jealous in private and public ^'fe. relations, and, if not personally cruel, willing to sanction and profit by the cruelty of others. Throughout his career he is consistently devout, pure in life, temperate and careful to avoid offence, faithful to the church and clergy, uuTv avering in orthodoxy, keeping always before his eyes the design with wliich he began his active life, hoping to die as a crusader. Throughout his career too he is consistent in political faith : the house of Lancaster had risen by advocating constitutional principles, and on constitutional principles they governed. Henry IV ruled his kingdom with the aid of a council such as he had tried to force on Richard II, and yielded to his parliaments all the power, place, and privilege that had been claimed for them by the great bouses which he represented. It is only after six years of sad experience have proved to him that he can trust none of his old friends, wdien one by one the men that stood by him at liis coronation have fallen victims to their own treasons or to the dire necessity of his policy, that he becomes vindictive \ sus- picious, and irresolute, and tries to justify, on the plea of necessity, the cruelties at which as a younger man he would have shuddered. It may be that the disease which made his later years miserable, and which his enemies declared to be God's judgment upon him, affected both the balance of his mind and the strength of his ruling hand. That love of casuistical argu- ment which is almost the only marked characteristic which his biographer ^ notes in him, may have been a sign of the morbid consciousness that he had placed himself in a false position, and conscience may have urged that it was not by honest means that One stage of the transition may be seen in Arundel's speech of 1407, in which he declares that Henry has never exacted the penalties of treason from any who were willing to submit and promise to be faithful; Eot. Pari. iii. 608. ^ * Novi temporibus meis litteratissimos viros, qui colloquio suo frueban- tur, dixisse ipsum valde capacis fuisse ingenii et tenacis memoriae ut multum diei expenderet in quaestionibus solvendis et enodandis .... Etsi sapiens fuerat, ad cumulum tamen sapientiae qui in Salomone fuerat non pervenit. Sufficiat posteriori saeculo scire quod vir iste in moralibus dubiis enodandis studiosus fuerit scrutator, et, quantum regale otium a turbinibus causarum eum permisit, liberum in his semper sollicitum fuisse;' Capgr. 111. Henr. pp. 108, 109. He was 'sage et imaginatif ; ' Wavriu, p. 108. XVIII.] Darh shades in Jus career. 9 he had availed himself of his o-reat oppoi'tunity. We can hardlv Questions of think that he was so far in advance of his age as to believe lully in the validity of the plea on which, as the chosen of the nation, he claimed the throne. If the defiance of the Percies contains any germ of truth, he had acted with more than lawful craft when he gained their assent to his supplanting of Richard; if the French chronicle of the time is to be credited, he had not refrained from gross perjury. Neither the one nor the other is trustworthy, but both represent current bel'efs. If Henry were guiltless of E-ichard's death in fact, he was not guiltless of being the direct cause of it, and the person who directly profited by it. Although he was a great king and the founder of a dynasty, the labour and sorrow of his task were ever more present to him than the solid success which his son was to inherit. Always in deep His constani debt, always kept on the alert by the Scots and Welsh; wavering and disap- 1 . ' • 1 ^ T< pointmeiits. between two opposite lines of policy with regard to ranee; teased by the parliament, which interfered with his household and grudged liim supplies; worried by the clergy and others, to whom he had promised more than he could fulfil ; continually alarmed by attempts on his life, disappointed in his second marriage, bereft by treason of the aid of those whom he had trusted in his youth, and dreading to be supplanted by his own son ; ever in danger of becoming the sport of the court factions which he had failed to extinguish or to reconcile, he seems to us a man whose life was embittered by the knowledge that he had taken on himself a task for which he was unequal, whose con- science, ill-informed as it may have been, had soured him, and who felt that the judgments of men, at least, would deal hardly with him when he was dead. 625. The forms observed at Henry's accession show that theTheacces- (> 1 . . T , sioii recojr- greatness oi the occasion was recognised by some at least ofnisedasa his advisers. The scene in Westminster Hall when he claimed the throne was no unpremeditated j^ageant ; it was the solemn and purposed inauguration of a new dynasty. Archbishop Arundel, the astute ecclesiastic and experienced politician,, although his zeal was quickened no doubt by the sense of the wrong done to himself and his brother, saw, more clearly than lo Constitutional Kistory. [chap. Recognised Henry, tlie true justification of his proceedings. Sir "William of the Thirning ^ the Chief Justice of the Common Pleas, had had to iicc6ssion. use argument to prevent Henry from claiming the throne by conquest. A commission of doctors had sat to inquire what fair claim he could make as rightful heir of the kingdom. The claims of the duke of Aumale, son of Edmund of Langley duke of York, and Richard's favourite cousin, were advanced for- mally that they might be set aside ^. No doubt the name of the young Mortimer was pronounced by some under their breath ; for it was clear that the kingdom could fall to none but Henry. Popular superstition too was worth courting : the prophecy of Merlin was searched for an omen, and Henry was seen to be the ' boar of commerce ' ^ who after days of famine, pestilence, and desolation, 'should recall the dispersed herds to the lost pas- tures ; whose breast should be food for the needy and his tongue should quiet the thirsty, out of whose mouth should proceed streams to moisten the dry jaws of men.' Turning to more hallowed sources of authority, Henry was found to be ^ 'Proposuerat Henricus de Darby vendicare regnum per conquaestum, sed Guillelmus Thirning justitiarius Angliae dissuasit;' Leland, Coll. i. 1 88 ; Ann. Henr. p. 282. Creton, an utterly untrustworthy wTriter, makes the archbishop ask the parliament whether they will have the duke of York, the duke of Aumale or his brother Richard ; Archaeol. xx. 200. According to Hardyng the debate in which Henry alleged the false pedigree took place on September 21. If there were any such debate, it must have been there that the bishop of Carlisle protested against Richard's deposition; but it is more probable that the discussion on Henry's hereditary title took place in the meeting of the coLomission of doctors, one of whom was Adam of Usk the chronicler, who reports that it was held on that day. (Chron. ed, Thompson, p. 29.) . , ^ ' Superveniet aper coimnercii, qui disperses greges ad amissa pascua revocabit.' Geoff. Mon. vii. § 3. Several pretended prophecies of Merlin were in vogue at the time on both sides, in one of which Henry is de- scribed as the mole who should reign after the ass ; ' post asinum vero talpa ore Dei maledicta, superba, misera et turbida,' &c. See Mr. Webb's note on the subject, Archaeologia, xx, 258 ; Hall, Chr. p. 26. Froissart says that when he was at the court of Edward III, he heard an old knight who mentioned a prophecy contained in a book called Brut, that the descendants of the duke of Lancaster would be kings of England. He also heard a prophecy to the same purport on the day of Richard's birth. The stories, if true, tend to prove that J ohn of Gaunt was suspected as early as that date of aspiring to the succession. (Froissart, iv. 121.) Adam of Usk has other prophecies, one by John of Bridlington, in which Henry is represented as a dog ; and one taken from Merlin in which he is described as an eaglet ; Chron. p. 24. XVIII.] The new dynasty. II a new Judas Maccabeus to whom Northumberland was the Mattathias^ The sword which he had drawn on landing was The Lan- ° caster sword. to be preserved as a part of the regalia, the sword of Lancaster by the side of the sceptre of the Confessor. The glories of the line of Lancaster were crowned by the discovery of the golden eagle and cruse of oil which were to give to the new dynasty The sacred that miraculous unction that the house of Clovis had received from the holy dove ; the blessed Virgin had confided it to S. Thomas of Canterbury at Sens, and it had lain concealed at Poictiers until under divine directions it had been delivered to duke Henry of Lancaster, the gi'andfather of the new king ^. It may be feared that the same hand may be traced here that drew up the claim of legitimate descent through Edmund Crouchback as elder son of Henry III, if such a claim were really made. Wiser men were satisfied with the threefold title established by Henry's formal claim, the ready consent of the estates and the resignation of Richard in his favour ^ : ' Henry, * So the earl calls himself in his letters to Henry ; Ordinances of the Privy Council, i. 204, 205. ^ The story of the ampulla is given in full in the Annales Henrici Quarti, pp. 297-298; Eulog. iii. 380; Capgr. Chr. p. 273. It is examined by Mr. Webb in the notes on Creton, Archaeol. xx. 266. ^ Froissart, iv. c. 116, states the three reasons as conquest, inheritance and Richard's resignation. Cf, Chronique de la Trabison, p. 220. Cap- grave (111. Henr. p. 107) says 'primo ex propinquitate sanguinis, quam probavit ex antiquis quidem gestis quorum veras copias nec dum vidi;' secondly by election, and thirdly by Richard's assignment. It is a curious thing that neither chronicles nor records preserve the exact form of the pedigree which vfas alleged at the time of Henry's challenge. Hardyng, the chronicler, who was brought up in the household of the earl of Northumberland, says that it was based on a story invented by John of Gaunt, that Edmund of Lancaster, from whom his wife Blanche was flescended, was the elder son of Henry III, but was set aside in favour of Edward I, who was his younger brother. The earl had told Hardyng that on the 2ist of September this claim had been laid before the lords, tested by the Chronicles of Westminster, and rejected ; but notwithstanding was alleged by Henry. (Chron. pp. 352, 353.) Adam of Usk, whose chronicle has been lately discovered and edited by Mr. Maunde Thompson, says that on that day the subject was broached in the commission of doctors who were inquiring into the question of succession, and quotes the chronicles by w^hich it was refuted ; p. 30. This is no doubt the true account of the matter. See Hall, Chron. p. 14. Probably other stories were told. It was said in the controversy on the Yorkist title, that Philippa of Clarence was illegitimate; Fortescue, Works, i. 517. But the words of Henry's challenge do not necessarily imply that he meant to assert the forged pedigree ; they need imply no more than that succession through females 12 Constitutional History. [chap. duke of Lancaster, stood forth and spoke in English ' — here also we may discern a deliberate and solemn formality — ' " In the name of Father, Son, and Holy Ghost, I Henry of Lancaster challenge this realm of England and the crown with all the mem- bers and the appurtenances, as I that am descended by right line of blood, coming from the good lord king Henry Third, and tlirough that right that God of his grace hath sent me with help of my kin and of my friends to recover it, the which realm was in point to be undone for default of governance and undoing of the good laws^." After which challenge and claim, the lords spiritual and temporal, and all the estates there present, being singly and in common asked what they thought of that challenge and claim, the said estates with the whole people, without any difficulty or delay, with one accord agreed that the said duke should reign over them/ Then immediately the king showed to the estates the signet of king Richard which he had delivered to him as a sign of his good-will. Thereupon Arundel took him by the right hand and led him to the throne, Henry kneeled down before it and prayed a little while ; then the two archbishops Arundel and Scrope seated him upon it. By a strange and ominous coincidence, the close kinsmen of the two murdered earls joined in the solemn act. Arundel had avenged his brother ; Scrope had yet to perish in a hopeless attemj)t to avenge his old master and the cousin who had laid down liis life for E-ichard. When Henry had taken his seat, Arundel preached a sermon contrasting Henry's manliness with was regarded as strange to the custom? of England. It is on the exclusion of females that Fortescne urges the claim of the king's brother as against the grandson by a daughter, in the treatise ' de Natiira Legis Naturae ; ' and if that were accepted, Henry might fdrly call himself the male heir of Henry III, It was, u)oreover, on this principle pi'obably that he excluded his own daughters from the succession in 1404 and 1406, Hardyng's story that John of Gaunt procured the insertion of the f >rged pedigree in several monastic chronicles is not borne out by any known evidence. If true, it must be referred to the year 1385, when it is said that he tried to obtain Henry's recognition as heir, and when the Earl of March was preferred ; Eulog. iii. 361. * Rot. Pari, iii, 422, 423; Mon, Eves, p. 209 ; Ann. Bic, p, 281 ; Raine, Northern Registers, p. 429. There are some slight variations in the word- ing as given by these authorities. See also Otterbourne, p. 219 ; Eulog. iii. 384; Capgrave, Chron. p. 273. will.] Deposition of Richard. 13 Kichard's childishness \ and after the king had expressly dis- avowed any intention of disinheriting any man on the plea that he had won England as a conqueror^, ho nominated the ministers and officers of justice, received their oaths, and fixed the day for his coronation. The session broke up; the members were to Parliament ' e summoned. meet again on the 6th of October under the writ 01 summons already prejiared^, and the king was to be crowned on the feast of S. Edward the Confessor, October 13. The proceedings of the deposition were completed on the ist of October, when Sir William Thirning, in the name of the commissioners appointed to convey to Richard the sentence of the Estates, declared his message to the unhappy king and renounced his homage and fealty. Richard replied ' that he looked not thereafter, but he Richard's said that after all this he hoped that his cousin would be good fnllis^dep^^ lord to him^.' So the record ends ; but it was known at the^^^^"'^' time that Richard, when he was further pressed to renounce all the honours and dignity pei-tainiiig to a king, refused to renounce the Si:)iritual honour of the royal character impressed upon him, or his unction ^. "When the judge read to him the terms in which he had confessed himself unworthy, insufficient, and unfit to govern, and had allowed that he was deposed on account of his demerits, he corrected him, saying ' not so, but because my governance pleased them not Thirning insisting on the form, Richard gave way, and said with a smile that he ^ The text was ' Vir domiiiabitur populo' ; i Sam. ix. 17. Rot. Pari. iii. '•^ ' It is not my will that no man think that by way of conquest I would ilisinherit any maa of his heritage ' ; Hot. Pari. iii. 423 ; Raine, Northern Registers, p. 429 ; Otterbourne, p. 220. Cf. Adam Usk, p. 32. •' The parliament. which met on the 30th of September under Richard's writ was supposed to be dissolved by his deposition ; the new parliament was summoned on the same day for October 6 ; but although it was obviously impossible for elections to be held in the six days intervening, no intimation is contained in the writs that the same members should attend ; see the Lords' Report, iv. 768. The king, however, apologised for the short notice, and declared that it was intended to spare labour and ex- pense; Rot. Pari. iii. 423. * Rot. Pari. iii. 424. 'Respondit quod noluit renunciare spiritual! honori characteris siM impressi et inunctioni quibus renunciare non potuit nee ab hiis ce&sare'; Ann. Henr. p. 286 ; Capgr. 111. Henr. p. 107. ^ Ann. Henr. p 286. 14 Constitutional History, [chap. trusted they would provide liim with such means that he would not be destitute of an honourable livelihood. To the last he is a problem ; we cannot tell whether they are words of levity or of resignation. fleeting of The meeting of the parliament on the 6th of October was merely parliament. iimii- ii- formal \ The king took his seat ; the lords and commons with a great compaay of spectators were in attendance. Arundel explained the circumstances which had rendered the new writ of summons necessary, and repeated the substance of his sermon. dEcourse ' "^^^^ honourable realm of England, the most abundant angle of riches in the whole world,' had been reduced to destruction by the counsels of children and widows ; now God had sent a man knowing and discreet for governance, who by the aid of God would be governed and counselled by the wise and ancient of his realm. Having thus struck the keynote of the Lancastrian policy, he took another text, ' the affairs of tlie kingdom lie upon us,' from which he deduced the lesson that Henry was willing to be counselled and governed by the honourable, wise, and discreet persons of his kingdom, and by their common counsel and consent to do his best for the governance of himself and his kingdom, not wishing to be governed of his own will nor of his own ' voluntary purpose or singular opinion,' but by common advice, counsel and consent. After praising England as the land which most of all lands might trust to its own resources, and pointing out the requisites of good government, he declared the king's purpose of conserving the liberties of the Church, of the lords spiritual and temporal, and the commons; and .with the consent of the assembly the parliament was adjourned to the The corona- day after the coronation. That solemn act was celebrated on the appointed day with all the pomp and significance that be- fitted the beginning of a new dynasty. The Lancaster sword was borne before the king by the earl of Northumberland as sovereign of the Isle of Man ; the golden eagle and cruse were used for the first time, and from the knighting of forty-six candidates for the honoui-s of chivalry, the heralds date the * Hot. Pari. iii. 415. XVIII.] Changes in the Peerage. 15 foundation of the order of the Bath^ The king had already Appoint - begun to reward his friends ; Ralph Neville, the earl of West- ministers, moreland, had been made marshal and received the honour of Richmond ; Henry Percy, the father, had been made constable and lord of Man ; his son received the isle of Anglesey ; his brother, the Earl of Worcester, was made admiral ^ ; Arundel had been of course recognised as archbishop without waiting for the pojDc's reversal of his translation^. John Scarle, the chancellor, and John Northbury, the treasurer, were probably men who had stood aloof from politics and were trusted as oflScers who knew their own business 626. On the 14th of October the parliament met for despatch Composition of business ; four dukes, one marquess, ten earls, and thii'ty-four ment barons, with the regular number of prelates, composed the house of lords ; the house of commons numbered seventy- *^ four knights, and somewhat over two hundred representatives of boroughs. The clergy had met under Arundel in their pro- vincial synod on the 6th, and had in preparation the measures for which they reckoned on the grateful co-operation of the king. It is in the house of lords of course that the changes and chancres chances of the preceding century have made the deepest mark. Sulsl^ Edward I, in 1300, had summoned eleven earls and ninety- eight barons. Of the eleven earldoms, three were now vested in the king, who, besides being earl of Lancaster, Lincoln, and Hereford, was also earl of Derby, Leicester, and Northampton^. ^ See Froissart, book iv. c. 116 ; Ann. Henrici, p. 291 ; Chronique de la Trahison, p. 225 note; Fabyan, Chr. p. 565; Taylor. Glory of Kegality, p. 259 ; Favine, Theatre of Honour, tome ii. p. 65 ; Selden, Titles of Honour, pp. 819, 820. ^ Rymer, viii. 91, 95. ' The temporalities were restored Oct. 2 1 ; Rymer viii. 96. * Northbury had been Richard's minister, but in the discussions on the king's guilt declared that he had resisted his attempts at tyranny ; and when Bagot asked what man in pai-hament would have ventured to do so, ' Vere, inquit, ego, etsi perdidissem omnia bona mea, una cum vita ' ; Ann. Henr. p. 305, ' So he styles himself in a deed dated 1399, printed by Madox, Formulare Angl. p. 327 ; see also Rymer, viii, 90 ; and Rot. Pari. iv. 48. The earldom of Northampton was afterwards conceded by Henry V to the StafFords as coheirs of Bohun. i6 Conditiitional llutorij. [chap. Changes in Oue bad become tbe regular provision for tbe prince of Wales, le peerage. ^^^^^ earlcloms of Arundel and Surrey were united in tbe son of tbe murdered earl, wbo was a minor, and suffering under bis fatber's sentence. The heir of tbe Bigods had just died in exile ^: tbe heirs of Umframville were no longer called to tbe English parliament j tbe house of Valence was extinct. Gloucester was for the moment held by Thomas le Despenser. Oxford and Warwick survived. Of the ninety-eight baronies twenty'^ were represented by tbe descendants of their former possessors, five were in the hands of minors, fourteen were altogether ex- tinct, twenty-one bad fallen into what tbe lawyers have termed abeyance among coheiresses and their descendants; thirty-three bad ceased to be regarded as hereditary peerages from tbe non- summoning of their holders ; one had been sold to the crown ; besides extinction and abeyance some had suffered by attaint. Of tbe new lords, the four dukes and the marquess represented younger branches of tbe royal bouse ; of the earls three repre- sented the ancient earldoms ; three had been created or revived by Edward III, four were creations of Richard 11^. Of the fourteen newer baronies ten date from tbe early years of the preceding century ; three, the two Scropes and Boui chier, from tbe reign of Edward III; one, that of Lumley, from 1384. The chief political results of this attenuation had been to lodge constitutional power in far fewer hands, to accumulate lands and dignities on men wbo were strong rather in personal qualifi- cations and interests than in tbeir coherence as an estate of the realm, to make deeper and broader the line between lords and commons, and to concentrate feuds and jealousies in a smaller circle in which they would become more bitter and cruel than ^ The duke of Norfolk died at Venice Sept. 22, 1399. 2 These numbers are derived from a collation of the writs for March 6, 1300, with the statements in Nicolas' Historic Peerage, Dugdale's Baron- age, and Banks' Dormant Peerage. The barony sold to the king was that of Pinkeni, in 1301. The minors were Latimer, Clifford, Grey of Wilton, I'Estrange, and Mortimer. 2 The dukes were York, Aumale, Surrey and Exeter ; the marqness, Dorset ; the three ancient earldoms were Gloucester, Warwick and Oxford. Edward III had created Devon, Salisbury and Stafford; Kichard II, Northumberland, Westmoreland and Worcester. XVIII.] Percies and Nevilles. 17 they had been before. The quarrels of the last reign bad Diminution already proved this, and Henry, when he looked round bim, peerage, must have seen many places empty whicb be bad once seen filled witb earnest politicians. Of the appellants of 1388, only himself and War^Yick survived ; of the counter-appellants of 1397, Nottingham and Wiltshire were dead; the rest were waiting with anxious bearts to know wbetber Henry would sacrifice them or save them. Could be bave looked forward a few months only he would have seen four more noble beads from among them laid low ; a few years farther, and he would bave seen the very men who bad placed bim on tbe tbrone perisb as the victims of treason and mistrust. The strong men of tbe peerage now were tbe Percies, wbo The Percies. shared witb tbe bouse of Arundel tbe blood of tbe Karolings, and bad risen by steady accumulations of ofiice and dignity to a primacy in power and wealtb ; the earl of Nortbumberland was that Henry Percy wbo bad disappointed tbe hopes of tbe Good Parliament, wbo bad stood by John of Gaunt when be defended Wyclifie at S. Paul's, who bad been afterwards bis bitter enemy, and whose desertion of tbe cause of Richard bad, more tban any otber single event, ensured the success of Henry. His brother Thomas had been steward to Richard II and bad received from bim tbe earldom of Worcester. Ralph Neville, tbe earl of West- The moreland, was brother-in-law of Henry Percy, and bad risen in tbe same way ; be was son of tbe lord Neville who had been impeached in the Good Parliament, and be had married, as second wife, Johanna Beaufort, a daughter of John of Gaunt. The blood of tbe house of Lancaster ran also in the veins of the Hollands and the Arundels ; and such lords as were not cousins to tbe king through his parents, were ranked in the affinity of the Bohuns. The vast estates of the bouse of Lancaster lay The chiefly in the north and midland shires ; and tbe great names lords, of the Percies, Nevilles, Scropes, Lumley, Roos, Darcy, Dacre, Greystock and Fitzbugh, show that the balance of political strength in the baronage lay northwards also. The first parliament of Henry IV sat from October 6 to November 19. It despatched a great deal of work. There VOL. III. c 1 8 Constitutional History. [chap. d'ffi uit^^ were, notwithstanding the great popularity of the king, grounds at the begin- for alarm at home and abroad ; how to obtain recognition by rei^!^ ^ the pope and foreign princes, how to equip an army without having recourse to heavy taxation, how to deal with the Wycliffites, how to reconcile the feuds, how to punish the de- stroyers of Gloucester and Arundel, what was to be done with king Kichard. Henry had made great promises to the clergy, and to Arundel he owed scarcely less than he owed to the Percies. At Doncaster, and again at Knaresborough castle, soon after he landed, he had promised not to tax the clergy with tenths or the laity with tallages^; Arundel was aware that any moment the knights of the shires in parliament might demand the seizure of the temporalities of the clergy. Sir John Cheyne, the speaker chosen by the commons, was known to be inclined to the Wycliffites; on the plea of ill-health he declined the election, but not until the archbishop had moved the synod of the clergy against him ^. Sir John Doreward was chosen in his place ^. Proceedings The speaker was admitted on the i i^th of October ; and the oftheparlia- i n i t ^ -r^. , n, , ment. same day all the proceedings of Richards last parliament, in accordance with a jDctition of the commons, were annulled, and the acts of that of 1388 reinstated in their validity; the sufferers of 1397 were restored, so far as they could be restored, in blood and estate ; the king undertook that the powers of parliament should not be again delegated to a committee such as Richard had manipulated so cleverly; the blank bonds which he had used to tax the counties illegally were cancelled ; and the king's eldest son, Henry of Monmouth, was made prince of "Wales, duke of Cornwall, and earl of Chester ^ The oath at Doncaster is mentioned by Hardyng in the Percy Chal- lenge, Chron. p. 352. That at Knaresborough by Clement Maidstone: ' quod nunquam solveret Ecclesia Anglicana decimam nec populus taxam ' ; Ang. Sac. ii. 369, ^ Ann. Henr. p. 290. Walsingham says that Cheyne was an apostate deacon; ii. 266. He was member for Gloucestershire and had been im- plicated in the designs of duke Thomas. ^ Eot. Pari. iii. 424. * lb. iii. 425, 426, 436; cf. Adam of TJsk, p. 35. The blank charters were bmned by the king's order of Nov. 30; Kymer, viii. 109. XVIII.] Trial of the Ai^jpellants, 19 The next day the knights of the shire demanded the arrest Challenges of the evil counsellors of King Richard ^ Sir William Bagot, inations the only survivor of the luckless triumvirate who had managed appdfants the parliament of 1397, made a distinct charge against the°^'^^'" duke of Aumale as the instigator of the murder of Gloucester. He repeated a conversation in which Richard had spoken of Henry as an enemy of the church, which called forth from the king himself a most distinct asseveration of his faithfulness ; and Aumale, who saw that he was to be represented as Richard's intended successor^, challenged the accuser to single combat. The dukes of Surrey and Exeter, alarmed by Bagot's words, followed Aumale's example ; and the king, fearing that the informer would do more harm than good, remanded him to prison. The next day the lords, on the advice of lord Cobham, agreed that the three dukes should be arrested ; the unhappy Warwick, who still survived to his own shame, attempted to excuse his con- fession of treason, and finally denied that he had made it, calling forth from the king a summary command to be silent. Lord Fitzwalter loudly proclaimed the innocence of Gloucester. Henry, remembering the part which he had himself played in the events of the last parliament, must have felt very miserable ; he seems however to have determined that matters should not be driven to extremities, and put off the proceedings as well as he could from day to day. Every step in the transaction seemed to make the guilt of Aumale more probable. On the i8th of October lord Fitzwalter formally impeached him ^ ; Surrey * 'Die Jovis,' Ann. Henr. p. 303 ; where a graphic account of the whole proceedings will be found, supplementing the meagre record in the Rolls of Parliament. See also Archaeologia, xx. 2i^-i%\. The story was that Richard had once expressed a wish to resign the crown to the duke of Aumale, as the most generous and wisest man in the kingdom. The duke of Norfolk had urged that Henry stood nearer to the succession. Then Eichard had said, *Si ipse teneret regni regimen de- struere vellet totam ecclesiam sanctam Dei ' ; Ann. Henr. p. 304 ; Fabyan, p. 566. Henry now allowed that he had wished to see more worthy men pro- moted than had been in Richard's time ; and thus to some extent admitted that the subject had been discussed. According to Hall, Henry had been heard by the abbot of Westminster to say, when he was quite young, *that princes had too little and religions had too much' ; Chron. p. 15. ^ Otterbourne, p. 222; Ann. Henr. p. 310. C 2 Constitutional Ilidory, [chap. Richard con- alone stooci by him ; the loud challenges of the lords and the demned to , p -, , n • -i i tt i uiipribou- shouts of the commons threatened a civil war, and Henry only- succeeded by personal exertions in rescuing his cousin from imminent death. During the lull that followed this storm, archbishop Arundel, on the 23rd of October, determined to raifce the question what was to be done with Richard ^ He charged the lords and all who were present to observe strict secrecy ; and Northumberland put the question at once ^. Twenty-two prelates, eight earls, including the prince of Wales and the duke of York, and twenty-eight barons and counsellors, declared their mind, that the late king should be kept in safe' and secret imjDrisonment ; and on the 27 th, Henry himself being present, the sentence of perpetual imprisonment was passed Protest on him^. The commons, on the 3rd of November, protested commons, that they were not judges of parliament, but petitioners *, thus guarding themselves against the consequences of a possible re- action. In consequence of this sentence Richard was, on the 29th, at midnight, removed from the Tower ^ Proceedings As soon as the sentence on Richard was declared, the outcry renewed . . , . , ajBwinst was agam raised against the appellants of 1397; and on the 29th the proceedings were continued more quietly and formally. The six survivors pleaded their own cause severally ; and bishop Merks took courage to present himself and disavow all participation in the murder of Gloucester ^. The lords admitted different degrees of complicity in the appeal ; Aumale declared ^ Rot. Pari. iii. 426. ^ ' Coment leur semble que serroit ordeignez de Richard nadgairs roy, pur luy mettre en saufe garde, sauvant la vie quele le roy voet que luy soit bauvez en toutes maneres V Ilot Pari, iii. 426. ^ Rot. Pari. iii. 427. The version of the sentence given in the Chronique de la Trahison as pronounced by the recorder of London, must be a fabri- cation ; John of Bourdeaux, who had been called king Richard, was con- demned to be imprisoned in a royal castle, and if any one rose in his favour, he was to be the first who should suffer death for the attempt ; Chron. &c. p. 223; cf. Archaeol. xx. 274. * Rot. Pari. iii. 427. ^ Ann. Henr. p. 313. ^ lb. p. 313. The formal proceedings are in the Rot. Pari. iii. 449-453 ; they are deficient in dates, but it would seem from them that the debate was renewed on Wednesday the 29th; the answers of the accused were discussed on the Thursday ; on the Friday the king consulted the prelates. The date of the judgment is given by the annalist. xviir.] Trial of the Ajojoellants. 21 that he liad acted under constraint; Surrey Avas a boy at the Pleas of the time and had complied in fear for his life ; Exeter had done what the others had done ; Dorset had been taken by surprise, and had not dared to disobey the king ; Salisbury had acted in fear ; Despenser did not know how his name had got into the bill, but when it was there he dared not withdraw it. Other charges were included in the accusation ; the death of Gloucester, the banishment of Henry, the repeal of the patent which secured the Lancaster inheritance, and the other sentences of the parlia- ment. These were distinctly disavowed with various degrees of assurance. On the ^rd of November Sir William Thirning Sentence pvonoTiiiccd. pronounced the judgment of the lords ^ ; the excuses of the appellants were to some extent a confession of guilt ; but the circumstances of the case were excei)tional ; the common law did not furnish adequate machinery for deciding the questions at issue, and to attempt to treat the matter as treason, as usually treated, would be to stir up elements most dangerous and dis- astrous to the realm ; mercy and judgment were to be com- mingled in the decision ; the dukes of Aumale, Surrey, and Tiie dukes * 'J' defrraded. Exeter were to be reduced to their former rank as earls of Rutland, Kent, and Huntingdon ; the marquess of Dorset was to become earl of Somerset again, and le Despenser to cease to be earl of Gloucester. Salisbury's fate was not decided by the sentence ; his confession was somewhat more damaging than those of the others, and he had not been admitted to state his case to the king. He was left to prove his innocence in a trial by battle with the lord Morley his accuser ^. Hall, the person wlio was regarded as one of the actual murderers of Gloucester, had been sentenced to death on the 17th, and executed the same day ^ The proceedings exhibit Henry as a somewhat temporising politician, but not as a cruel man. The offence against Gloucestei- ^ Rot, Pari. iii. 451 ; Ann. Henr. pp. 315-320; Wals. ii. 241. ^ Froissart (iv. 116) says that Salisbury, who had been imprisoned, ■was received into favour on Rutland's intercession. Preparation was made for the trial by battle, but Salisbury's fate was decided before it could take place (see Williams' note on the Chronique &c., p. 224; Lingard, Hist. -Kng. iii. 200) ; and lord Morley the challenger recovered costs from the earl's sureties ; Adam Usk, pp. 44, 4;^. ^ Rot. Pari. iii. 452, 453 ; Adam Usk, p. 36. 22 Constitutional History. [chap. and Arundel in which he had participated was mixed up with the offence against himself ; and he might have availed himself Henry of the popular outcry to revenge his o\Yn wrongs. His conduct within- was contlemned as weak and undecided, and be was threatened surrection. .^^^ anonymous letter with an insurrection if the guilty were not more severely punished ^. The lords and the knights of the shire denied on oath their knowledge of the writer ; but sub- sequent events gave a sad corroboration to its threat, and po]5ular fury completed the task which the king had mercifully declined. Forma! pro- It was probably as a direct consequence of these proceedings commons, that the commons, on the 3rd of November, made the protest already referred to : ' that as the judgments of the parliament belong solely to tlie king and lords, and not to the commons, except in case that it please the king of his special grace to show to them the said judgments for their ease, no record may be made in parliament against the said commons, that they are or will be parties to any judgments given or to be given here- after in parliament. Whereunto it was answered by the arch- bishop of Canterbury at the king's command, liow that the same commons are petitioners and demanders, and that the king and the lords have of all time had, and shall of right have, the judgments in parliament, in manner as the same commons have shown ; save that in statutes to be made, or in grants and sub- sidies, or such things to be done for the common profit of the realm, the king wishes to have especially their advice and assent. And that this order of fact be kept and observed in all time to come The revival of the Acts of 1388 and the repeal of those of 1397 involved some readjustment of personal claims, which formed an important part of the work for the remainder of the session. The earls of Suffolk^, Arundel, and Warwick*, re- ^ 'Quasi illi (the King, Arundel and Percy) caecati muneribus salvas- sent vitam hominum quos vulgus sceleratissimos et morte dignissimos reputabat' ; Ann. Henr. p. 320. Hardyng at a later period recommends to Edward IV the example of Henry in favour of clemency as a piece of sound policy ; Chron. p. 409. 2 Rot. Pari. iii. 427. ^ Ann. Henr. p. 312 ; Rot. Pat. Cal. p. 238 ; Rot. Pari. iii. 668. ' l.ot. Pari. iii. 435, 436; Chron. Henr. ed. Giles, p. 5. XVIII.] Parliament of 23 quired restitution ; the three persons ^ excepted from the pardon Repriration of 1388 had to be secured by a royal declaration of their losses, loyalty. The sentence against Haxey, already set aside by E-ichard, had to be again annulled^ ; and the pardons granted by Richard in 1398 to be confirmed. The king refused how- ever to restore the heirs of the condemned judges, or to replace the heir of Yere as high chamberlain. Archbishop Arundel was allowed to demand reparation from Walden, whom Richard had forced into the primacy ; and the prince of Wales was em- powered to bear the titles of duke of Aquitaine and Lancaster^. The necessary work of the parliament was soon despatched ; Taxation a subsidy on wool was granted for three years, and a fifteenth legislation, and tenth already granted to Richard was confirmed to Henry *. The king rejected the proposal that, for fear of the plague, he should not go abroad, and obtained the consent of the lords that he shou'd go in person against the Scots ^ Time was found for the passing of a statute of twenty clauses, and more than sixty important petitions were heard and answered. Of the legislative acts the most significant were those which restricted the definition of treason to the points defined in the statute of Edward III, and forbade appeals of treason to be made in parliament; another prohibited the delegation of the powers of parliament to a com- mittee like that abused to his own destruction by Richard II ^. It is in the treatment of petitions that the king shows the most Petitions in strength of will. There were no doubt about him some counsellors P^^'^^™®"*** who wished for reconciliation and concord at any cost, and were content to wipe out summarily all the sad history of the late reign. There were others who had private as well as public wrongs to avenge, and some to whom the opening of the new ^ The three were Richard Ch'fFord now Privy seal, Richard Metford now bishop of Salisbury, and Henry Bowet afterwards bishop of Bath and Wells and archbishop of York ; the latter was the king's confidential agent. Rot. Pari, iii, 428, ^ Rot. Pari. iii. 430, 434. 3 j)^ \\{ ^^37, 441, 442. * lb. iii. 425. A half tenth and fifteenth payable at the preceding Michaelmas is not confirmed to Henry. ^ lb. iii. 427, 428, 434. The king himself spoke in full parliament on the expedition to Scotland. ' lb. iii. 426, 434, 442. 24 Constitutional History. [chap. Honryob- era Seemed to give an opportunity for urging at once funda- acknowledg- mental changes. Henry found that he must take his own line, nientofhis tt i • t p i i • i i im prerogative. He obtained from the commons a declaration that he, like Hichard, was entitled to all the royal liberty that his prede- cessors had enjoyed^, undertaking however not to follow the example of Richard in overthrowing the constitution. He freely exercised the right of rejecting petitions even when strongly urged by the commons ; in some instances showing more policy than equity. He had already discovered that he would be far from a rich sovereign, and that the relations with France and Scotland were likely to involve him immediately in a great Treatinent expenditure. Eichard liad thrown the whole finance of the or petitions. . , kingdom into confusion ; and were Richard's obligations to be reviewed the confusion would be worse confounded. To the petitions that the sums borrowed by Richard should be repaid, that the sums due for purveyances should be discharged, and that the acquittances which he had granted should be revoked, he returned the same answer, le roi s'avisera ^ ; but he authorised a careful inquiry into the effects of Richard ^. He refused to order the repayment of the money paid as ransoms by the Question of a adherents of Gloucester and Arundel. He had to refuse to resumption. submit to the judgment of his council the great donations of land by which he had already provided for his servants, or to agree to a general resumption of crown lands His last act in the parliament was to except from all the benefits of the national pacification the estates of Scrope, Bussy, and Green, whom he regarded as guilty of all the evil that had come upon the land : yet even here he would try to be just ; he would not lay hand on the estates with which those culprits were enfeoffed to the use of others, and he would do nothing that would endanger or disgrace the venerable lord le Scrope of Bolton who had been so faithful to his father and grandfather, and who was in no way answerable for the sins of his unhappy son, the earl of Wiltshire^. ^ Rot. Par. iii. 434. ^ lb. iii. 437, 438, 440. In the case of the purveyances the king pro- mised to take the advice of his council and do what was reasonable. 3 lb. iii. 439. * lb. iii. 433. ^ lb. iii. 453. XVIII.] Convocation of i'^<^g. 25 The convocation or provincial synod of Canterbury, which sat Henry's contemporaneously with this parliament, made no grant of with con- money, but contented itself with drawing up articles directed against the Lollards and the continual encroachments of the royal courts ^ Henry had dealt carefully with them, and as early as the 7th of October had sent Northumberland to tell them that he wanted no money, but prayers, promising to do his best to suppress heresy. Although this assembly seems to have been summoned by the chapter of Canterbury, as if in a vacancy of the see, and although Boniface IX did on the 19th of October issue letters restoring Arundel to the primacy^, neither king nor archbishop, parliament nor s}Tiod, had thought it necessary to wait for the formal act. The archbishop had taken his place in both the assemblies, had crowned the king and had been restored to his temporalities long before the papal letter could have reached England. This conduct seemed to promise that however strenuously orthodox Henry might be, his relations to E,ome w^ould not be marked by servility, and that the house of Lancaster would act up to the spirit of the constitution in both Church and State. 627. The reign of peace lasted for a little more than a month. Short reign Henry, perhaps, had done either too much or too little. An ° p^^^" eastern potentate w^ould have struck off the heads of the Hollands and extinguished the house of Mortimer, regardless of the infant innocence of the little earl of March. But Henry does not seem to have cast a thought on Mortimer, and the ready acquiescence of the Hollands in his assumption of the crown either deceived him or left him without a plea for crush- ing them. Yet he had in the two degraded dukes, in Salisbury and in le Despenser, four very determined enemies; and his cousin ' Ann. Henr. pp. 290, 291 ; Wilkins, Cone. iii. 238, sq. ^ Wilkins, Cone. iii. 246. Adam of Usk thus deseribes the position of the rival archbishops during the interval, ' Thomas et Rogerus, si fas est dicere, duo archiepiscopi in una ecclesia, quasi duo capita in uno corpore, Rogerus scilicet tunc per papam in possessione juris, et dominus Thomas, quia necdum per papam restitutus, per seculi tamen potestatem in posses- sione facti, quae praevaluit in omnibus, quia sibi soH crucis Cantuariensis, fciibi a dicto Rogero remissae, paruit in omnibus delatio' ; Chron. p. 37. 26 Constitutional Kidory. [chap. Conspiracy Rutland was not beyond suspicion. Whether the degraded of the earls. i i . i • i i • c lords were goaded mto desperate action by their own fears, or whether they really miscalculated national opinion so far as to hope for Richard's restoration, cannot be determined. They formed a plot to seize the king on Twelfth Night, and replace [ts failure Richard on the throne. The conspiracy was discovered, whether and punish- ^ raent. betrayed by Rutland or suspected by his father, and foiled. Kent and Salisbury were seized and murdered by the mob at Cirencester; le Despenser fled and fell a victim to the hereditary hatred of the citizens of Bristol ; Surrey was taken in Essex, and notwithstanding the intervention of the countess of Hereford, Henry's mother-in-law, was beheaded at Pleshey^. Of these cruelties Henry was no wise guilty, but he did not punish the murderers, and shortly afterwards increased the number of victims Fate of by more legal executions at Oxford and London ^ The failure of the attempt sealed the fate of Richard ; whether he was murdered at Pomfret, or starved himself to death, or escaped to live in Scotland an idiot and a prisoner, he had already quitted the stage of history ^. We may believe that Henry spoke the truth when he declared that he had no hand in his death. A solemn funeral was celebrated for the unhappy victim at Langley on the 1 4th of February ; and although the king rewarded the services of the men and women of Cirencester with an annual present* of venison, he proclaimed on the 24th that accused persons were not again to be beheaded without trial. 628. Meanwhile the political difficulties which overshadowed the whole reign were looming at no great distance. France would not recognise the new king, or accept his proposals for an ^ Ann. Henr. p. 327. Hardyng says that the countess ordered the execution ; p. 356. She was a sister of archbishop Arundel. 2 Otterbourne, p. 228; Ann. Henr. pp. 329, 330 ; Leland, Coll. ii. 484; Adam Usk, p. 41. Lord Lumley was taken and killed at Cirencester, Sir Thomas Blount and Sir Benedict Shelley and twenty-seven or twenty-eight others at Oxford ; Richard Magdalene, and John Feiiby clerks, Thomas Schevele antl Bernard Brocas knights, in London. On Feb. 24 the king issued a proclamation against beheading traitors without trial ; Rymer, viii. 124; Ordinances, i. 107 sq., 113. 2 On the evidence about Richard's death see Webb, in Archaeol. xx. 282 sq. ; Amyot, ibid. pp. 424-442. * Rynier, viii. 150. XVITI.] Dlffindties, .27 alliance by marrias^e, and demanded the restoration of Richard's Foreign ' . . T . . • i- XI difficulties, child-widow. The Scots were stirring at the instigation 01 the French ; the Welsh were preparing to rise under Owen Glen- dower. Invasion was imminent. Richard's treasures, if they had ever existed, had been spent or stolen. The year 1400 was a very busy year for Henry. In the summer he marched north Invasion of . . , , , 1 X • 1 Scotland. to insist on the homage of Scotland ^ : he reached Leith as a victorious invader, but returned home without gaining his object. In Sei)tember he heard that Owen Glendower was at war with War in , . Wales. lord Grey of Ruthyn, and he had to make an expedition to Wales in the autumn. The money for the Scottish expedition Supply of . money. was provided by the contributions of the lords, granted in a great council ; the prelates giving a tenth and the lords tem- poral giving an aid under specified conditions^, but the king had no success in his attempt to borrow from the Londoners ; and at Christmas the emperor of Constantinople ^ to whom Richard had made large promises, arrived to claim the fulfilment. A truce had been patched up with France, but peace was not to be looked for. New allies must be sought ; a project of marriage was started, to secure the alliance of the new king of the Romans, who had supplanted Wenzel as Henry had supplanted Richard ; and there could be no marriage without money. Although on the view of the whole year Henry's position had Complaints 1 ,1 in mi 1 of the want become stronger, the dangers ahead were greater. The clergy, of money, although the king had surrendered the alien monasteries and had not pressed the demand for money, were clamouring against the "Wycliffites ; the Percies who were bearing the burden of defence on both the Scottish and the Welsh marches, were discovering that the change of ruler was bringing them more cost than honour. Money was wanted everywhere and for every one. Henry knew * Otterbourne, p. 230; Ann. Henr. p. 333; Eulog. iii. 387; Wals. ii. 246 ; Chron, Giles, p. 20. The great council was held on 9th of February by writ under the Privy Seal; Rymer, viii. 125, 153 ; Ordinances of the Privy Council, i, ioa-106. According to the annalist the clergy were asked by letter for a tenth, which it was thought uncivil to refuse; Ann. Henr. p. 332. The commons were not asked ; Adam Usk, p. 43. 3 Ann. Henr, p. 334; Ad. Usk, p. 55. '2S Constitutional History. [chap. that when once the financial alarm began to spread, constitu- tional difficulties would arise. He had already too few friends, mentSied ^^^^ ministers of scarcely average experience. The parliament must meet again. It had already been summoned to meet at York in October 1 400 ; but the day was postponed and the place changed. It met at Westminster on the 20th of January, 1 40 1 ^, and sat until tlie loth of March, statement of Sir William Tliirning, the chief justice, who made the opening before the Speech, had no easy task. The financial report which had been parliament. before the council showed that, besides the expenses of the royal household, more than £130,000^ was required for the defence and administration of the realm. The £350,000 at which Richard's accumulations were estimated had disappeared, and the king had already incurred a debt of £16,000^. No figures, however, were laid before the commons ; the expenses of the coronation, the suppression of the conspiracy, the expeditions to Scotland and Wales, the defence of Calais and Guienne, were dwelt upon, and the commons in particular were urged to give more attention than was usually given to public business, and less to matters of private interest. Tlie result of this exhorta- tion was a long and specially important session. The com- 629. The commons, although they may, in the first instance, their oppor- have required a spur, now saw their advantage at once. It was tunity. weakness of the king's title, as has sometimes been said, ])ut their knowledge of his necessities that gave them their vantage ground. With the utmost apparent loyalty and with no little liberality they began to put in form the claims which they con- ceived themselves to jdosscbs. They chose as speaker Sir Arnold ^ Lords' Eeport, iv. 770-775 ; Kot. Pari. iii. 454. ^ The estimate is printed in the Ordinances of the Privy Council, i. 154, ii. 56 ; but the document is mutilated, Amons: the items are Calais £13,320 6s. Sc? ; Ireland £5333 ds. 8<7. ; Guienne £ro,ooo; Queen Isabella £8242 OS. \od.\ the last loan £16,000 ; the wardrobe £16,000 ; annuities and grants £24,000 ; all together including lost items, but not including the household, £130,908 14s. 2d. These items agree with the jiarticulars of Thiming's Speech ; Rot. Pari. iii. 454. ^ On the amount of treasure left by Richard see Chronique de la Trahi- son, p. 263 ; Fabyan, p. 569, from the Polychronicon, estimates it at £700,000; the Chronique at 900,000 nobles, or £300^000. XVIII.] Parliament of 1401. Savage \ oue of tlie members for Kent, a man wlio showed bv Arnold . , , * Savage's the length and ingenuity of his speeches, that he was capable of speeches, rivalling the curious orations with which the parliaments were usually opened by chancellor, archbishop or justice. Thirning had directed that no one should leave the parliament until the business of the session was completed. Savage, after making the usual protest on being presented to the king, recounted the principal points of the justice's speech, and expressed a hope that the commons might have good advice and deliberation, and not be pressed suddenly with the most important matters at the very close of parliament. The king, through the Earl of Wor- cester, replied that he imagined no such subtilty. Not satisfied with this, three days after, the commons again presented them- selves, and again returned thanks for Thirning's speech, and administered another reproof^. It might happen, the speaker Discussions said, that some of their body, out of complaisance to the king, and speaker, might report their proceedings before they were completed, a course which might exasperate the king against individuals ; he prayed that the king would not listen to any such tales. Henry made the requisite promise. The speaker then proceeded to expatiate in a set speech on the course to be adopted with respect to a number of lords who had been challenged by the French as traitors to King Richard. Henry thanked them for their advice. On the occasion however of a third address on the 31st of January, the king, tired of Savage's eloquence, declined to hear any more petitions by word of mouth, and requested the commons to put all their requests in writing ^. The object of Redress to the whole proceeding was no doubt that which was stated in supply, one of the petitions so delivered, that the king's answer to their requests might be declared before the grant of money was made. This petition was presented on the 26th of February; ^ Rot. Pari. iii. 455 : Otterbourue, p. 232. 'Qui tain diserte, tarn elo- quenter, tam gratiose, declaravit communitatis negotia, praecipue ne de cetero taxis gravaveutur aut talliagiis, quod eandem ab universis promeruit ea die ' ; Ann. Hen. p. 335, Sir Arnold Savage, of Bobbing near Sitting- bourn, had been sheriff of Kent in 9 Rich. II, and gone with John of Gaunt to Castille. He was constal le of Queenborough castle in 1393 and died in 1410. Hasted's Kent, ii. 635, 636. - Rot. Pari. iii. 455. 3 jij ^^^^ ^56. 30 Constiiutional History. [chap. Henry's refusal. Another speech of Savage. The com- mons force their de- mands on the kmg. the king in reply promised to confer with the lords on the point, and on the last day of the session refused the demand as un- precedented ^. This petition and its answer involve one of the most distinct statements of constitutional theory that had been ever advanced. Savage no doubt was capable of formulating so much and more ; in another of his speeches he compares the estates to a Trinity, that is to say ' the person of the king, the lords spiritual and temporal, and the commons/ But the crowning instance of his ingenuity is found in the closing address, in which he draws an elaborate parallel between the parliamentary session and the Mass ; the oflSce of the archbishop at the opening of the session is compared to the reading of the epistle, gospel, and sermon ; the king's declaration of a determination to maintain the faith and the laws is compared with the propitiatory offering ; the closing words ' Ite missa est ' and ' Deo gratias ' are equally ap- propriate in both cases ^. The 'Deo gratias' of the commons was expressed in their money grant, for which the king thanked them and then dissolved the parliament. The grant made was a fifteenth and tenth, for a year, with tunnage of two shillings and poundage of eightpence for two years ^. The claims of the commons were not confiued to matters of theory ; the king was obliged to comply with their petition that he would revoke the assignment of certain pensions charged on the subsidy of wool which in the last session had been granted for a special time and purpose. They further prayed him to institute a careful examination into the inventory of king Richard's jewels*, a petition which, according to the historian of the time, Henry met with a declaration that he had received none of Richard's property, but was in reality poor and needy. They urged that the record of parliamentary business should be engrossed before the departure of the justices, whilst the facts were still present in their memory^, no indistinct hint that the record was not always trustworthy; the answer was that the clerk of the 1 Eot. Pari. iii. 458. 2 i^. iij. ^66. 3 lb. iii. 455 ; Dep. Keeper's Rep. ii. App. ii. p. 181. * Rot. Pari. iii. 457 ; Ann. Henr. p. 335. ^ jj^^. Pari. iii. 457, 458. XVIII.] Statute against Lollardy. 31 parliament should do his best with the advice of the justices and subject to the advice of the king and lords. The lords were otherwise employed, partly in the work of Sentences pacification, partly in the work of retribution. The conspiracy tions. of the earls had ruined many and endangered more. Sentence of forfeiture was declared against the earls of Kent, Hunting- don, and Salisbury and the lords Lumley and le Despenser. Rutland and Fitzwalter agreed to refer their quarrel to the king's decision ; the earls of Rutland and Somerset were, on the petition of the commons, declared loyal. The king's cle- mency looked even farther back ; the heirs of the judges Holt and Burgh were restored ; the bishop of Norwich, the valiant Henry le Despenser, the only man who had ventured in arms to oppose Henry's march in 1399, was reconciled to the king; the proceedings against Sir Simon Burley were reversed. All these were wise and politic measures, although they were too late to heal the evils caused by the exceptional misgovernment of the late reign ^ The mark however by which the parliament of 1401 is The statute chiefly known in history is the action taken against the Lol-Slards! ^ lards. This was prompted no doubt by archbishop Arundel, who throughout his career was their unflinching enemy. He had a double opportunity. The popular hatred of Bichard's court and courtiers was still strong ; and among Bichard's courtiers the chief protectors of the Lollards had been found. The earl of Salisbury had been a noted and powerful heretic, closely connected with Thomas Latimer, Lewis Cliff'ord, William Neville, the Cheynes, and the Clanvowes, who were the leaders of the party. Advantage might be taken of the unpopularity of the old court to destroy the Lollards. Henry again was fervently orthodox, all the more so perhaps for the dislike that as an honest man he must have felt at his father's intrigues with the Wycliffites; he had made very weighty promises to the clergy, and Arundel might well demand that those promises should be now fulfilled : a calumny had been breathed against Henry himself; this would be the easiest way of repelling it. * Hot. Paxl. iii. 456, 459, 460, 461, 464. 3^ Constitutional Kistory. [chap. Petition of The clergy had shown a dislike to contribute money, and had the clergy. ^^^^^ grant since the reign began ; they might be inclined to be more liberal if they saw themselves seemed against their enemies. With this intention Arundel had called together the cleigy on January 26th, and told them that the great object of their meeting was to put down the Lollards ^ The royal commissioners, Northumberland, Erpingham, and Northbury, promised the king's aid, and prayed for some decisive measure. The result was a long and bitter petition ^, and the immediate initiation of proceedings against William Sawtre, a Lollard Petition priest. The petition was granted by the king with the assent commons, of the lords; and a petition of the commons, conceived in shorter terms but in the same sense, conveyed the assent of the lower house ^. It was then framed into a clause of the statute of the year, and by it the impenitent heretic, convicted before the spiritual court, was to be delivered over to the officers of the secular law to be burned ; all heretical books were to be de- Sawtre stroyed*. The exact date of the petition is not given. Sawtre's trial, however, lasted from the 12th to the 24th of February^; on the 26th the royal writ for his execution was issued^. On the I ith of March the convocation granted a tenth and a half- tenth to supplement the contribution of the laity The whole proceeding, grievous as it is to the reputation of all persons concerned in it, seems to show that there was already in the country, as in the court, a strong reaction against the Wycliffites. Doubtless it was in the House of Commons that the widest ^ Wilkins, Cone. iii. 254. 2 Rot. Pari. iii. 466, 467; Wilkins, Cone. iii. 252. ^ Rot. Pari. iii. 473. ' Item priount les Communes qe qant ascun homme ou feinrae, de quel estat ou condition qu'il soit, soit pris et empri- sone pur Lollerie, que maintenant soit mesne en respons, et eit tel jugge- ment come il ad desservie, en ensample d'autres de tiel male secte, pur legerement cesser lour malveis predications et lour tenir a foy Cristien.' * 2 Hen. iv. c. 15; Statutes, ii. 123; Chr. Giles, p. 22; Wilkins, Cone. iii. 328. 5 Ann. Henr. pp. 336, 337; Eulog, iii. 388; Chr. Giles, p. 22; Adam XJsk, p. 57; Wilkins, Cone. iii. 254. ^ Rymer, viii. 178 ; Rot. Pari. iii. 459. We gather from Adam Usk, p. 4, that there was during the session an alarm of a Lollard rising. ^ Wilk. Cone. iii. 262 ; Ad. Usk, p. 59. The clergy of York granted a tenth, July 26 : Wilk. Cone. iii. 267. XVIII.] ArundeVs Tolicy. 33 divergence of opinion would be looked for : a year and a half Probable objects of before the commons had chosen a suspected Lollard as their Arundel's policy rc- speaker. But the fall of Salisbury, and the desertion of Sir yarding the Lewis Clifford \ who formally renounced Lollardy in 1402, must have weakened them. Sir John Cheyne no longer represented Gloucestershire, and Sir John Oldcastle had not yet been elected for Herefordshire. It must not however be supposed that the revival of doctrinal zeal affected the relations of the national church to Rome in other points. The same parliament that passed the statute of Lollardy urged the exact execution of the statute of pro visors ^, and shewed no reluctance to con- fiscate the property of the alien priories which Henry had restored in the previous year ^ ; it was no time for sparing either the property or the labour of the clergy, as the king had shown by directing them to arm to repel a French invasion. The policy which Arundel dictated seemed still to combine the maintenance of orthodoxy with great zeal for national welfare. Possibly to some of the questions thus raised was owing theChang:eof change of ministry which occurred at the close of the session. Scarle on the 9th of March resigned the great seal, which was given to bishop Stafford the very prelate who had been chan- cellor during the last years of Richard; and on the 31st of May Northbury was removed from the treasury, and Lawrence Allerthorp succeeded him. Allerthorp was an old baron of the Exchequer, who after holding office as treasurer for a year was sent to Ireland with Thomas of Lancaster, the king's son. It seems more probable that both ministers were chosen for their practical qualifications, than that any political change had taken place. It was no doubt acceptable to the clergy that a bishop should again preside in the chancery, and the restoration of ^ Ann. Henr. p. 347. ^ Rot. Pari. iii. 459, 465, 470. The king had been empowered in the last parliament to dispense with this statute in particular cases; the commons now pray that it may not be dispensed in favour of cardinals or other aliens ; another petition alleged that the enactment of the last par- liament had been wrongly enrolled, but this on examination was proved untrue ; ibid. p. 466. Cf. Statutes, ii. 121, 122. 2 Rymer, viii. loi ; Rot. Pari. iii. 456. * Rymer, viii. 181. VOL. III. D 24 Constitutional History. [citap. Stafford may have been part of the plan of reconciliation Avhich four years later placed the deposed archbishop Walden in the see of London. Sfflculties ^^^^ ^^^^ begun was not less busily employed than increase. that which preceded it. It was a year of increasing labours and increasing difficulties. The king himself spent a month in Wales in the summer, trying in vain to bring Owen Glendower The Welsh to a decisive ent^ao^ement. After returning to Westminster for war m 1401. . * • a great Council in August^, he agam mustered his forces at Worcester in October to renew his efforts. But the season was by that time too far advanced, and he returned to London without having entered Wales. The younger Percy, Hotspur as he was called, who had been acting as commander on the Welsh march, was, in repeated letters to the council, complain- ing of the expenses of the war. On the 17th of May he wrote to say that he could not retain his command beyond the end of the month, and on the 4th of June he repeated the warning ^. The apprehensions of attack from France were again becoming Discussion formidable. At a council held probably in June, a division oil on a war of Opinion manifested itself : should war be declared at all, in June. should it be declared without the consent of parliament, or should parliament be immediately summoned. The great lords saw that the financial difficulty would be great; E,utland especially deprecated a new war whilst money was so scarce, and the earls of Northumberland, Westmoreland, and Suffolk thought with him. The lord Grey of Ruthyn thought it well to wait until the negotiations which were still pending had broken down, and then to refer the whole matter to parliament ^. The momentary alarm passed over, and the little queen was restored to her parents. But money did not become more ' Henry was at Evesham June 3, at Worcester June 8, and spent four weeks on the border ' paruin proficiens '; Mon. Evesh, p. 1 74. On the 2 ist he was back at Wallingford ; and on the 25th at London. Cf. Ordinances, &c. ii. 56. ^ See the letters in the Ordinances and Proceedings of the Privy Council, i. 150, 151, 152. ^ Ordinances, &c. i. 143-145 ; cf. p. 165. XVIII.] War in Wales, 35 plentiful. Another great council was held in August \ ^^^^o^the'^ attended by a very large number of knights and esquires war, August, severally summoned by letters of privy seal. In this assembly the king is said to have resolved on going to war with France and Scotland. In the winter the king ordered the collection of an aid on the marriage of his daughter Blanche to the count palatine Lewis, son of the king of the E-omans ^. Henry's popularity was on the wane ; he had not been suc- cessful in Wales ; the exactions of his purveyors were a bitter source of complaint among the people ^ ; an attempt was made upon his life. The next year, 1402, was one of still worse 11^1402^ omen. In Lent the lord Grey of Ruthyn was captured by Mortimer Owen Glendower. In June, Edmund Mortimer, the brother Giendowe?. of the late earl Roger of March who had been declared heir- presumptive by Richard, fell into the hands of the rebel chief, and after a short imprisonment married his daughter, pro- claimed himself his ally, and declared that he was in arms to maintain the right of his nephew to the throne The king's invasion of Wales, now become an annual event, was more than ever unsuccessful and calamitous ; it lasted for three weeks, during which the army was nearly starved and nearly drowned °, ^ Ordinances, &c. i, 155. Adam of Usk mentions this council and the determination to go to war, p. 67. 2 The letters for collecting the aid were issued Dec. i, 1401, and Feb. 16, 1402; E,ymer, viii. 232, 242; Dep. Keeper's Eep. ii. App. ii. p. 181; the amount was 20s on the knights' fee held immediately of the king, and the same on every twenty pounds rental of land held of the king in socage, according to Stat. 25 Edw. III. But the grant of the aid was not yet made; it was to be discussed in a great council in January 1402. See p. 36, note 4, below. ^ Ann. Henr. p. 337 ; Eulog. iii. 387 ; Eot. Pari. iii. 473. An exaction on the sale of cloth produced loud complaints and riots in Somersetshire where the king was regarded as having broken his promise about taxation ; Ad. Usk, p. 61. * Ord, i, 185 ; Chron. Henr. ed. G-iles, pp. 27, 30. In a letter to his tenants dated Dec. 13, 1402, Mortimer announces that he has joined Glendower in a scheme to restore Richard if he is aUve, or if he is dead to place the earl of March on the throne; Ellis, Original Letters, 2nd series, i. 24; Tyler, Henry of Monmouth, i. 135. On the 28th of Feb. 1405 is dated the agreement between Glendower, Mortimer, and Northumberland, for a division of England and Wales between the three; ib. p. 150; Chron. Henr. ed. Giles, pp. 39 sq. ; Hall, p. 28. 5 Ann. Henr. p. 343. D 2 Constitutional History. [chap. Rumour nothing beinff done against the foe. As Henry's failures less- thatRichard ^ ^ . ... pt^. -.i is alive. ened his popularity, a mysterious reaction in favour of Kiehard began to set in. It was currently reported that he was alive in Scotland. Franciscan friars Avent up and down the country organising conspiracy. In May Henry had to charge the bishop of Carlisle and the earl of Northumberland to arrest all who were spreading the false news ^ ; and a number of executions followed showing that the king's patience was ex- hausted and his temper embittered. Walter Baldock, an Augustinian canon, and another priest Avho had engaged in Executions, conspiracy, were hanged. Eight Franciscans underwent the same fate, without any show of ecclesiastical remonstrance. Sir Roger Clarendon, a son of the Black Prince, with his esquire and page, perished in the same way and for the same cause. A popular rising was expected in London ; Owen Glendower and the Scots were believed to hold the strings of a secret league, and the sorceries of the friars were supposed to be the causes of the ill success of the king ^. In one quarter Battle of only there was light. The earl of Northumberland and Homildon *^ . ■ . Hill. Hotspur defeated the Scots at Homildon in September, and in that victory crowned the series of their services to Henry with a success which seems to have led to a fiual breach with him. The victory of Homildon was the one piece of good news which could be reported to the next parliament. Parliainen- 631. The last instalment of the tenth and fifteenth eranted tary history . ^ i • c ^ • of 1402. m March 1401 was due in the following November, and as a renewal of the grant would be immediately required, the parliament was summoned for January 29, 1402 ; but if such an assembly was ever held it left no traces whatever of its action * ; there are no statutes, no rolls of ^Droceedings, no writs ^ Rymer, viii. 255 ; of. p. 261, 262, 268. ' Ann. Henr. pp. 309, 340; Wals. ii. 249; Eulog. iii, 389-394; Chr. Giles, p. 28. ^ 'Arte magica/ Otterb. p. 236; 'mala arte fratrum minortim,' Ann. Henr. p. 343; Wals. ii. 251. 'All men trowed witches it made that .stounde ' ; Hardjmg, p. 360. ' The writs for such a parliament at Westminster were issued on the 2nd of December; Lords' Report, iv. 776 ; and for convocation to be held the first Monday in Lent ; ib. p. 778. The Eolls of Parliament contain a will.] Tarllameni of lA^oi. 37 of expenses, ox of prorogation. The working parliament of the Parlinnient year met on the 30th of September^ ; Henry Bowet, the king's September, old chaplain, being treasurer, and bishop Stafford still chan- cellor. The latter in his opening speech said what could be said for the king, but did not attempt to conceal the distress of the country. True, Henry had been, as the mightiest king in the world, invited by the king of the Komans to attempt to heal the schism in the church, and the victory over the Scots was an almost miraculous proof of divine favour. Still the realm was endurini? punishment at God's hand^. The Conference - p , . -, . 1 oflorflsand commons m reply gave a proof of their earnest desire to work commons. for the public good, that awoke the suspicions of the king ; they desired, as they had done in the evil days of King Richard, to have 'advice and communication' with certain of the lords on the matters to be treated. Henry granted the request with a protest that it was done not of right, but of special favour ; and four bishops, four earls, and four lords were named ^. The most important business despatched was the grant of supplies. The subsidy on wool was continued for three years, tunnage and Grants of poundage for two years and a half ; and protesting that the grant should not be made an example for taxing except by the will of lords and commons, the poor commons by assent of the lords granted a tenth and fifteenth for the defence of the realm few petitions of the third year of Henry which might be referred to such a parliament if it were really held ; but one of them speaks of the parlia- ment as sitting at Coventry, so that probably they belong to 1404. The bishop of Norwich was directed to attend a coimcU to be held Jan. 27, 1402, on Aug. 24, 140 1 ; Ordinances, i. 167 ; and we know from the minutes of the council held in November, that both a great council and a parliament were to be held ; the aid for the marriage of Blanche was to be discussed at the council on Jan. 27; Ordinances, i. 179. One short minute of such a council is preserved ; ib. p. 180. ^ Rot. Pari. iii. 485 ; Eulog. iii. 395. ^ ' Dieux ad mys punissement en diverse manere sur ceste roialme' ; * le roi de Rome, pur appaiser et ouster eel schisme ad escript a notre dit seigneur le roi come a le pluis puissant roi du monde.' Rot. Pari. iii. 485. 3 Ret. Pari. iii. 486. * Dep. Keeper's Rep. ii, App. ii. p. 182; Rot. Pari. iii. 493; Ann. Henr. p. 350. Great sums were borrowed in anticipation of the first instal- n)ent of the grants; letters asking for loans to the amount of 22,200 marks were issued April i, 1403; Ordinances, &c. i. 199-203. The clergy of Canterbury met, Oct. 21, and on Nov. 27 granted a tenth and a lialf. Wilkins, Cone. iii. 271. 38 Co7i8tliutional History. [chap. of^th?*^^"^^ The most important statute of the session is one which confirms commons, ^he privileges of the clergy ; and the majority of the petitions concern private suits. The commons seem ho\vever to he fully aware of the character of the king's difficulties ; they pray that the king will abstain from fresli grants, and retain the alien priories in his hands; that Northumberland may be duly thanked, Grey of Kuthyn ransomed, and Somerset restored to his dignity of marquess, an offer which he wisely declined. George of Dunbar, earl of March, whose adhesion to the king had led to the victory over the Scots, entreated Henry to recover for him his lost estates. The increase in the number of petitions, the revival of old complaints, the demand for the enforcement of old statutes, show a great increase of uneasiness. The session ended on the 25th of November^. In February 1403 Henry married his second wife, Johanna of Navarre, the widowed duchess of Brittany, an alliance which Beaufort ^^^^ \iv[Q. neither strength abroad nor comfort at home ^. The chanceUor. same month Stafford resigned the great seal, Avhich was in- trusted by the king to his brother, Henry Beaufort, bishop of Lincoln. The appointment of Beaufort, coupled with the nomination of the prince of Wales as lieutenant in Wales, and Thomas of Lancaster, the king's second son, as lieutenant of Ireland, perhaps implies that Henry was severing himself from his old friends. Beaufort and Arundel do not seem to have acted well together, and the proud independence of the Percies was becoming, if not intolerable to the king, at least a source of danger to him as well as to themselves. The Percies. 632. Northumberland and Hotspur had done great things for Henry. At the outset of his reign their opposition would have been fatal to him ; their adhesion ensured his victory. He had rewarded them with territory^ and high offices of trust, and they had by faithful service ever since increased * Rot. Pari. iii. 487, 488, 491, 495. ^ 'Utinam fausto pede'; Otterbourne, p. 239 ; Ann. Henr. p. 350. ^ The earl, as late as Mar. 2, I403, had a grant of the Scottish lands of Douglas, which however could scarcely be a profitable gift so long as they were in Scottish hands ; Rymer, viii. 289. will.] Rebellion of Hotspur. 39 tlieir claims to ofratitude and consideration. The earl was jrrow- Growing dis- ° ^ ^ content ol ing old ; he was probably some years over sixty ; Hotspur was the Percies. about the same age as the king. Both father and son were high- spirited, passionate, suspicious men, who entertained an exalted sense of their own services, and could not endure the shadow of a slight. Up to this time not a doubt had been cast on their fidelity. Northumberland was still the king's chief agent in parliament, his most valued commander in the field, his Mat- tathias. It has been thought that Hotspur's grudge against the king began with the notion that the release of his brother- in-law, Edmund Mortimer, had been neglected by the king, or was caused by Henry's claim to deal with the prisoners taken at Homildon ; the defenders of the Percies alleged that they had been deceived by Henry in the first instance, and only needed to be persuaded that Richard lived in order to desert the king ^. It is more probable that they suspected Henry's friendship, and were exasperated by his compulsory economies. For two or three years Hotspur had been engaged in a service which ex- hausted his own resources, and he could get no adequate ' supplies from king or council. A less impatient mind might have been driven to discontent, and when it was once known * ' Comes Northumbriae rogavit regem ut solverat sibi aurum debitum pro custodia marchiae Scotiae, sicut in carta sua continetur ; Egomet et filius meus expendimus nostra in custodia ilia : rex respondit ; ' aiirum non habeo, aurum non habebis. Conies dixit Quando regnum intrastis promisistis regere per consilium nostrum ; jam multa a regno annuatim accipitis et nihil habetis, nihil solvitis et sic communitatem vestram irri- tatis. Deus det vobis bonmn consilium '; Eulog. iii. 396. Other reasons are given : Henry's demand that Hotspur should surrender his prisoner Douglas (see Wavrin, p. 56; Rymer,viii. 292; Hardyngp. 360), whilst Hotspur insisted that the king should ransom Mortimer. Hardyng gives the formal challenge made by the three Percies, embodying most of the chaiges made in 1405 ; and also makes them fight for the right of the little earl of March (p. 361). The challenge is made by the three Percies as ' procuratores et protectores reipublicae,' and charges Henry with (i) having sworn falsely at Doncaster that he was come only to recover his inheritance, in spite of which he had imprisoned Richard and compelled him to resign; (2) he had also broken his promise to abstain from tallages ; (3) contrary to his oath he had caused the death of Richard ; (4) he had usurped the kingdom which be- longed to the earl of March ; (5) he had interfered with the election of knights of the shire ; (6) he had hindered the deliverance of Edmund Mortimer and had accused the Percies of treason for negotiating for his release. Hardyng, pp. 352, 353 ; Hall, dir. pp. 29, 30. See also Lingard, iii. 212. 40 Constitutional History. [chap. Henry suspects nothing. Northum- berland presses for money. Rebellion of Hotspur. His profes- sions. Henry's answer. that he Avas discontentecl, the same crafty heads that were maintaining the strife on the Welsh and Scottish borders would know how to approach him. Yet Henry seems to have con- ceived no suspicion. In April he was employed in raising- money by loan to send to Scotland. Northumberland and Hotspur were writing for increased forces. The castle of Ormeston was besieged ; a truce made with its defenders was to end on the ist of August; the king was to collect all the force of the country and to join in the invasion. Henry started on his journey : still the old earl was demanding the payment of arrears, and the king was fencing with him as well as he could ; on the 30th of May' he wrote for botli help and money ; on the 26th of June^ he told the king that his ministers were deceiving him ; it was not true that he had received <£6o,ooo already; whatever he had received, £20,000 were still due. On the loth of July Henry had reached Northamptonshire on his way northwards ; on the 17th he had heard that Hotspur with his uncle the earl of Worcester were in arms in Shrop- shire ^ They raised no cry of private wrongs, but proclaimed themselves the vindicators of national right : their object was to correct the evils of the administration, to enforce the employ- ment of wise counsellors, and the proper expenditure of public money*. The king declared in letters to his friends that the charges were wholly unfounded, that the Percies had received the money of which the country was drained, and that if they would state their complaints formally they should be heard and answered ^. But it was too late for argument. The report ran like wildfire through the west that Eichard was alive, and at Chester. Hotspur's army rose to 14,000 men, and not sus- ^ Ordinances &c., i. 203, ^ lb. i. 204 ; this letter is signed ' Votre Mathathias,' in the old man's own hand. ^ lb. i. 206, 707. * ' Ut personae suae possent gaudere indemnitatis securitate et corrigere publicas gubernationes, et constituere sapientes consiliarios ad commodum regis et regni. Scrip<:erunt insuper quod census et tallagia concessa regi sive donata pro salva regni custodia non sunt conversa in usus debitos sed devorata nimis inutiliter, atque consumpta'; Annales Henr. pp. 361, 362. Cf. Otterbourne, p. 240 ; Wals. ii. 255 ; Capgr. Chr. p. 282. '•' Ann. Henr. p. 362 ; cf. Eulog. iii. 395. XVIII.] Growing Discontent, 41 pecting the strength and promptness of the king, he sat down Hotspur at with his uncle and his prisoner, the earl of Douglas, before Shrewsbury. Henry showed himself equal to the need. From Burton-on-Trent, where on July 17 he summoned the forces of the shires to join him ^, he marched into Shropshire, and offered to parley with the insurgents. The earl of Worcester went between the camps, but he was either an impolitic or a treacher- ous envoy, and the negotiations ended in mutual exasperation. On the 2ist the battle of Shrewsbury was fought ; Hotspur was Battle of slain ; Worcester was taken and beheaded two days after. The July 21, 1403. old earl, who may or may not have been cognisant of his son's intentions from the first, was now marching to his succour. The earl of Westmoreland, his brother-in-law, met him and drove him back to Warkworth. But all danger was over. On Nortbum- the iith of August he met the king at York, and submitted submits. to him^. Henry promised him his life but not his liberty. He had to surrender his castles ^ ; his staff as constable was taken from him, and given to John of Lancaster ; but Henry did not bear malice long ; the minor offenders were allowed to sue for pardon*, and within six months Northumberland was restored to his liberty and estates. 633. Although Hotspur's demands for reform were a mere ideality of artifice, and his connexion with the Welsh proved his insurrec- difficinfies. tion to be altogether treasonable, subsequent events showed that the reform was really wanted and that the spirit of dis- content was becoming dangerous in each of the estates. The Want of cry was everywhere what had become of the money of the"^^"^^' nation 1 The king had none, the Percies had received none, the people had none to give, the clergy were in the utmost poverty. Yet war was everywhere imminent. The Bretons were plundering the coast ; hostilities with France were only staved off by ill-kept truces ; the Welsh were still in full force. When Henry returned southwards and had gathered his forces at Worcester early in September, it was found that he could not ^ Rymer, viii. 314. 2 Otterbourne, p. 244; Annales Henr. p. 371. ' Ordinances, i. 211. * Rymer, viii. 338; Ordinances, i. 212. 4^ Constitutional History. [chap. The clerpj- move for want of supplies ^. To an application wliich was threatened. ^ ^ ^ made for a grant from the clergy Arundel replied that they were utterly exhausted ; and when, after an insolent demand from the courtiers that the prelates should be stripped of their equipages and sent home on foot, he had succeeded in as- sembling the synod of his province and obtained a grant of half a tenth, only .£500 could be raised immediately on the security JJ'^akness of the grant ^. Such a fact proves that all confidence iij the government, stability of the government was at an end. Complaints were becoming louder, suspicions graver and more general. The parliament summoned to Coventry in December was afterwards ordered to meet at Westminster in January^; a great council was held preparatory to the parliament, and when it met, every accusation of misgovernment, and every proposal for restraint on the executive, which had been heard since the days of Henry III, were repeated. Parliament Jn this parliament bishop Beaufort was chancellor, the lord of January, ^ ^ ' ^ 1404. Roos of Haralake treasurer, and Sir Arnold Savage again speaker of the commons. The election of Savage was in itself a challenge to the king; his long speeches invariably contained unpalatable truths. As was generally the case, the minister spoke chiefly of foreign dangers, the commons thought and said most about domestic mismanagement, the sudden diminution of the revenue, the lavish grants of the king, the abuses of liveries, the impoverishment of the royal estates, the extravagant administration of the household. A demand for a conference of advisers resulted in a formal array of such complaints ; if those complaints were satisfied, the commons would show them- selves liberal and loyal *. An unexpected amount of favour was shown to the earl of Northumberland ; the peers refused to find him guilty of treason ; it was not more than trespass : ^ Ann. Henr, p. 373 ; cf. Eulog. iii. 398. A council was held at Worcester; Rot. Pari. iii. 525. 2 Ann. Henr. p. 374. The clergy of Canterbury met October 7, and granted a half tenth; Wilkins, Cone. iii. 274. 2 Lords' Report, iv. 785-790: it met Jan. 14, Rot. Pari. iii. 522; and sat until Mar. 20, Lords' Report, i. 496 ; the great council was held before Christmas, Rot. Pari. iii. 525. * Rot. Pari. iii. 523, 524. XVIII.] Parliament of 1404. 43 he was admitted to pardon and took the oath of fealty. The Lenity of the struggle in the north Avas, it seemed, to be regarded as a case of private war rather than of rebellion. The earls of Westmore- land and Northumberland were prayed to keep the peace ; the commons returned thanks to the king for Northumberland's pardon, and showed the extent of the public suspicions by a petition that the archbishop of Canterbury and the duke of York might be declared guiltless of any complicity in Hotspur's rising ^. But the most significant work of the session was the Attack on attack on the household. On a petition of the commons four household, persons were removed from attendance on the king, his con- fessor, the abbot of Dore, and two gentlemen of the chamber; the king excused his servants but complied with the request, and undertook to remove any one else whom the people hated The same day, February 8, it was determined that an ordinance should be framed for the household, and the king was asked to ap- point his servants in jmrli anient, and those only who were honest, virtuous, and well renowned. Nor did the attack stop here : the Outcry old cry against aliens was after so many years revived; the king's aUens. . second marriage might, like the second marriage of E,ichard, be a prelude to constitutional change. The commons demanded the removal of all aliens from attendance on either king or queen ; a committee of the lords was appointed to draw up the needful articles, and they reported three propositions : all adherents of the antipope were to be at once expelled from the land ; all Germans and orthodox foreigners were to be employed in gar- risons and not made chargeable to the household ; all French, Bretons, Navarrese, Lombards and Italians were to be removed from court, exception being made in favour of the two daughters of the queen, with one woman and two men servants. Henry yielded so graciously that the commons relaxed their rigour and allowed the queen to retain ten other friends and servants. On the ist of March a fundamental change was introduced into the administration of the household, and a sum of £12,100 arising * Rot. Pari. iii. 324. 2 iii. 53.^ g26. 3 iii 525. * Ann. Henr. p. 379; Rot. Pari, iii, 527; Eulog. iii. 400. 44 Coust'dut 'tonal His tor?/. [chap. charU° ^^^^^^ various specified sources was set apart from the general household ^^'^^^^^^ crown to be devoted to this purposed The archbishop of Canterbury declared tlie king's consent to this, and made in his name a repeated declaration of his purpose to Declaration govern justlv and to maintain the law. A further condescen- ot the names . council ^^^^ public feeling was made by the publication of the names of the per&ons whom the king had appointed to act as his great and continual council. The list contains the names of six bishops, Edward of Rutland, who had now succeeded his father as duke of York, the earls of Somerset and "Westmoreland, six lords, including tlie treasurer and privy seal, four knights, and three others 2. Sir John Cheyne and Sir Arnold Savage are among the knights, and their presence shows that neither the Wycliffite propensions of the one nor the aggressive policy of the other was regarded as a disqualification for the office of coun- Petitions. sellor, A petition and enactment on the abuse of commissions of ari-ay show that the king's poverty was leading to the usual oppressive measures for maintaining the defence of the country^, and the number of private petitions for payment of annuities proves that the plea of poverty was by no means exaggerated. Yet the commons refused to believe that it was true. If we may trust the historians, the argument on the subject led to jDersonal Personal altercations between the kinsf and the commons. It was not the discussion ^ between the expenses of defence, they told him, that troubled England : if it kinarandthe ^ ' o > commons, were SO, the king had still all the revenues of the crown, and of the duch}' of Lancaster, besides the customs, which under king Richard bad so largely increased as far to exceed the ordinary revenues He had too the wardships of the nobles ; and all these had been granted that the realm might not be harassed with direct tax- ation. Henry replied that the inheritance of his fathers should not be lost in his days ; and he must have a grant of money. * Eot. Pari. iii. 52^. Of this sum £2000 arose fi-om ferms, £1300 from the small custom, £2000 from the hanaper, £500 from escheats, £2000 from alien priories, £300 from the subsidy on wool, and £4000 from the ancient custom. See Chr. Henr. ed. Giles, pp. 36, 37 ; Ann. Henr. p. 380. - Rot. Pari. iii. 530. ' 3 ^26. * 'Isti non inquietant Angliam multum'; Eulog. iii. 299. Neither the discns.sion nor the grant of the tax are noticed in the Roils of the Parlia- ment. XVIII.] Settlement of tlie Succession. 45 The speaker answered that if he would have a errant he must Proposal for ^ ... ^ tax on reduce the customs ; the king insisted that he must have both, tiie land. The customs were indeed safe, having been granted for more than a year to come. The commons held out until March 20, when they broke up after discussing a somewhat novel tax on the land ; it was proposed that a shilling should be paid on every pound's Avorth of land, to be expended, not by the ministers, but by four treasurers of war, three of whom were citizens of London \ The grant was probably voted in this session, but the final enactment was postponed to the next par- liament ; possibly that the constituency might be consulted meanwhile. The settlement of the succession on the prince of Settlement Wales and his heirs, and in default on the other sons of the king succession, in order ^, completed the important business of a session which must have been exceedingly unsatisfactory to the king, espe- cially as another parliament must be called within the year to renew the grant of the customs. The influence of the arch- bishop, which the details of this session prove to have been still very great, obtained an increased grant from convocation in May*; a measure which, viewed in connexion with the later history of the year, seems to have the air of i^recaution. Possibly the commons were meditating, probablj'- Arundel was antici- pating, an attack on the church, to follow the attack on the royal administration. In other respects the year was one of ^preparation and antici- pation. The French were threatening the coast ; the fleet, under Somerset, was vindicating at great cost the national ^ Eulog. iii. 400; Otterbourne, p. 246; Ad. Usk, p. 83; Ann. Henr. pp. 379, 380. ' Carta scripta sed non sigillata' ; Eulog. iii. 400. The subject, although circumstantially discussed by the annalists, does not appear in the Rolls until the next session. The persons, however, nominated as treasurers were recognised as such by the Council, and the subsidy is spoken of as gi'anted in this parliament; Ordinances, i. 220. Stowe, Chr. p. 330, says that the record was destroyed lest it should make a precedent. ' Rot. Pari, iii. 525. * The convocation of Canterbury met April 21, and granted a tenth and a subsidy (Wilk. Cone. iii. 280) on condition that their rights should be respected. Ann. Henr. p. 388; Dep. Keeper's, Rep. ii. App. ii. p. 182. The subsidy was a grant of 2s on every 2o.s of every benefice or office ecclesiastical untaxed, over loos per annum. 46 Constitutional History. [chap. Transactions reputation at sea ; the Welsh were gaining strength and forming of 1404. foreign alliances ; the sinister rumours touching Richard were obtaining more and more credit. In the summer Northumberland visited the king at Pomfret, and surrendered the royal castles which had been in his charge. Serle, a confidential servant of Eichard, was given up to Henry, and executed But little was done. In October at Coventry the ' Unlearned Parliament ' met. The 635. This assembly acquired its ominous name from the fact Pai-liament. that in the writ of summons the king, acting upon the ordi- nance issued by Edward III in 1372 ^, directed that no lawyers should be returned as members. He had complained more than once that the members of the House of Commons spent more time on private suits than on public business ; and the idea of summoning the estates to Coventry, where they would be at a distance from the courts of law, was perhaps suggested by his wish to expedite the business of the nation ^. In the opinion of the clergy the Unlearned Parliament earned its title in another way, for, although the rolls of parliament contain no reference to the fact, a formidable attempt was made to appropriate the temporalities of the clergy to the necessities of the moment. The estates met on the 6th of October ; the chancellor reported that the grant of the last parliament was entirely inadequate, and Money the commons replied with a most liberal provision ; two tenths and fifteenths, a subsidy on wool, and tunnage and poundage for two years from the following Michaelmas, 1405, when the grants made in 1402 would expire; lords and commons confirmed the land-tax voted in the last parliament, and lord Furnival and Sir John Pelham were appointed treasurers of the war instead of the persons then nominated ^. The bold proposition that the land of grants. * Otterbourne, p. 248 ; Ann. Henr. p. 390 ; Kymer, viii. 364. ^ Eot. Pari. ii. 310 ; Statutes, i. 394. ^ Ann. Henr. p. 391 ; Otterbourne, p. 249, 'nomen parliamenti laicalis.' Cf. Eulog. iii. 402 ; Wals. ii. 265. The writ runs thus — ' nolumus autem quod tu sen aliquis alius viceconies regni nostii praedicti apprenticius sive aliquis alius homo ad legem aliqualiter sit electus'; Lords' Report, iv. 792. On Coke's denial of this fact see Prynne, Second Register, pp. 123 sq. * The grant was made Nov. 12 ; Dep. Keeper's Rep. ii. App. ii. p. 182 ; XVIII.] The Unlearned Parliament. 47 the clergy should for one year be taken into the king's hands for Attack on tliG clergy* the purpose of the war ^ was brought forward by certain of the knights of the shires ^ ; but the archbishop in a spirited speech turned the tables on the knights, and pointed out that they had by obtaining grants of the alien priories robbed the king of any increased revenue to be obtained from that source. The bishop of Rochester declared that the proposition subjected its up- holders, ipso facto, to excommunication as transgressors of the great charter, and the knio^hts succumbed at once. A formal Proposed ^ , ^ ^ , resumption, proposal that the king should be enabled to live of his own by the resumption of all grants and annuities given since 1367 was accepted by Henry but referred to a commission of lords to ascertain how it could be executed ^. The session passed off quietly ; the clergy supplejnented the parliamentary grants as good subjects and the archbishop, feeling himself perhaps all the stronger for his victory, urged the king to more vigorous measures against the Lollards ^ The death of William of Heno'^Beau- Wykeham in the autumn of 1404 enabled the king to transfer J^i^'^^P^f^^^. his brother Henry Beaufort from Lincoln to Winchester, a pro- motion which probably caused him to resign the great seal for a Rot. Pari. iii. 546; Eulog. iii. 402. The grant of the land-tax is made by the lords temporal ' pur eux et les dames temporelx, et toutz autres per- sones temporelx,' a departure from the now established form ; it was 20s on every £20 of land over 500 marks per annum. ^ Ann. Henr. pp. 393, 394 ; cf. Wals. ii. 265. ^ Walsingham makes Sir John Cheyne speaker of this parliament ; but he was not present as a knight of the shire in it. Sir William Estui my, member for Devon, was speaker. Capgrave translates Walsingham, Chr. p. 287. yee also Stow, Chr. p. 330. ^ Rot. Pari. iii. 547-549. * The convocation of Canterbury granted a tenth and a half on the 25th of November ; the York clergy granted a tenth, Oct. 5 ; Wilkins, Cone. iii. 280; Ann. Henr. p. 394: but the king was not satisfied, and asked for a grant from the stipendiary clergy. Archbishop Arundel wrote to tell him that the proctors of the clergy had refused this ; that convoca- tion had no such power, and that there was no machinery for obtaining a representative body of chaplains. He ad\-ised that the bishops should be asked to press it on the stipendiaries by opportune ways and means ; Royal Letters, i 413; Wilkins, Cone. iii. 280. The matter was referred to the Chancellor, Treasurer, and Priv;y^ Seal, who were ordered to issue letters under Privy Seal to the bishops ; they replied that the letters had betters be sealed with the King's own signet; Ordinances, ii. loo, 101. 5 Ann. Henr. pp. 396. 48 Constitutional History. [chap. (■hancellor Succeeded by Thomas Longley, who a year afterwards was made bishop of Durham. Critical year, 635. The following year, 1405, was perhaps the critical year of Henry's fortunes, and the turning point of his life. Although in it were accumulated all the sources of distress and disaffection, it seemed as if they were now brought to a head, to be finally overcome. They were overcome, and yet out of bis victory Henry emerged a broken-dow^n unhappy man; losing strength mentally and phj^sically, and unable to contend with the new difficulties, more wearisome though less laborious, that arose before him. Henceforth he sat more safely on his throne ; his enemies in arms were less dangerous ; but his parliament became more aggressive, his council less manageable; his friends and even his children divided into factions which might well alarm him for the future of his house. Attempt to The difficulties of the year began with an attempt made in S61ZG tilG Mortimers. February to carry off the two young Mortimers from Windsor ^ The boys were speedily retaken, but it was a matter of no small Accusation cousequence to discover who had planned the enterprise. On duke of ^ the 17th the lady Despenser, daughter of Edmund of Langley and widow of the earl of Gloucester, a vicious woman who was living in pretended wedlock with the earl of Kent, informed the king's council that her brother, the duke of York, was the guilty person, and that he had planned the murder of the king. Her squire, William Maidstone, undertook to prove her accusation in a duel, and the duke accepted the challenge. He was how- Great men ever immediately arrested -. As usual, the first charge gave rise to a large number of informations. Thomas Mowbray, the earl-marshal, was unable to deny that he had some inkling of the plot, and archbishop Arundel had to purge himself from a like suspicion. The king forgave Mowbray and thanked the archbishop for the assurance of his faithfulness, but the sore ^ Ann. Henr. pp. 398, 399. 2 He was arrested on the 6th of March ; Kymer, viii. 386 ; imprisoned at Pevensey; Eidog. iii. 402 ; Wals. ii. 274; Otterbourne, p. 260. After seventeen weeks he begged to be released ; Rymer, viii. 387 : he was in full employment again in June ; Ordinances, i. 270. XVIII.] Rebellion of Northumberland. 49 rankled still; and in two meetings of the council held at London Quan-eiof and at S. Alban's the king found himself thwarted by the lords \ ^^^^^^y- On the ist of March a dispute about precedence took place in council between the earl of Warwick and the earl marshal, the son of the king's old adversary Norfolk ; it was decided in favour of "Warwick, and Mowbray left the court in anger^. Whilst this was going on in the south, Northumberland and Westmoreland were preparing for war in the north. Possibly the attitude of Northumberland may have been connected with the Mortimer plot, and Mowbray was certainly cognisant of both. The lord Bardolf, who had opposed the king strongly in the recent councils, had joined Northumberland, and Sir William Clifford had asso- ciated himself with them ^. Unfortunately for himself and all con- Archbishop cerned, the archbishop of York, Kichard le Scrope, placed himself pubhshes on the same side. These leaders drew up and circulated a formal against the indictment against the king, whom they described as Henry of Derby. Ten articles were published by the archbishop*; Henry was a usurper and a traitor to king and church; he was a perjurer who on a false plea had raised the nation against Kichard ; he had promised the abolition of tenths and fifteenths and of the customs on wine and wool; he had made a false claim to the crown ; he had connived at Pdchard's murder ; he had illegally destroyed both clerks and prelates ; and without due trial had procured the deaths of the rebel earls, of Clarendon and of Hotspur ; he had confirmed statutes directed against the pope and the universities; he had caused the destruction and misery of the country: the tenth article was a protest that these charges were not intended to give offence to the estates of the realm. Another document stated the demands of the in- surgents in a less precise form ^. They demanded a free parlia- ment, to be held at London, to which the knights of the sbire ^ Ann. Henr. p. 399; Stow, Chr. p. 332, ^ Eulog. iii. 405 ; Chr, ed. Giles, p. 43 ; Ordinances, ii. 104. ^ Ann. Henr. p. 402 ; Otterbourne, p. 254. * Anglia Sacra, ii. 362-368. Another form, drawn up as a vindication of the archbishop after his death, by Clement Maidstone, is given in the same work, p. 369. See also Foxe, Acts and Monuments, iii. 230 sq. Ann. Henr. pp. 403-405 ; Wals. ii. 422. VOL. III. E Consf'itutional History. [chap. The rebels E'opose to y their complaints before par- liament. Military operations. Arrest of the lords. should be duly elected, without the arbitrary exclusion which the king had attempted in the Parliament of Coventry. Before this assembly four chief points were to be laid : the reform of government, including the relief of church and nation from the unjust burdens under which both were groaning \ the regulation of proceedings against delinquent lords, which had been a fruit- ful cause of oppression ; the relief of the third estate, gentlemen, merchants, and commons, to be achieved by restricting the prodigality of the crown ; and the rigorous prosecution of war against public enemies, especially against the Welsh ^. These de- mands, which were circulated in several different forms, certainly touched all the weak points of Henry's administration, and although it must ever remain a problem whether the rising was not the result of desperation on the part of Northumberland and Mowbray rather than of a hope of reform conceived by Scrope, their proposals took a form which recommended itself to all men who had a grievance. As soon as it was known that the lords were in arms Henry hastened to the north, and having reached Derby on the 28th of May summoned his forces to meet at Pomfref^. The contest was quickly decided. The earl of Westmoreland, John of Lancaster, and Thomas Beaufort, at the head of the king's forces, encountered the rebels on Shipton moor and offered a parley. The archbishop there met the earl of Westmoreland, who promised to lay before the king, the articles demanded. The friendly attitude of the leaders misled the insurgent forces ; they dispersed, leaving Scrope and Mow- bray at the mercy of their enemies, and they were immediately arrested. In spite of the earnest pleading of archbishop Arundel^ and the refusal of the chief -justice, Sir William Gascoigne, to sanction the proceedings, the king allowed his better judgment to be overruled by the violence of his followers ^ On the advice of Thomas Beaufort and the young earl of Arundel, he determined to sacrifice them: he ob- tained the assistance of Sir William Fulthorpe, who acted as * Another form occurs in the Eulogium, iii. 405. See also Capgrave, Chr. p. 289 ; Chron. Henr. ed. Giles, p. 44. 2 Ordinances, i. 264 ; Eymer, viii. 400. 2 Ann. Henr. p. 408 ; Eulog. iii, 407. * See his account as given to the pope, in Eaynaldi, Ann. Eccl. viii. 143. XVIII.] Archbishop Scroj)e beheaded. 51 president of the tribunal of justices assigned ^, and on tlae 8th Execution of of June the archbishop and the earl marshal were beheaded. llowKy.^ That done, the king followed the earl of Xorthumberiand and Bardolf to the north. They fled to Scotland, and Henry, having seized the castles of the Percies, returned to the task of defence against the Welsh. It was no wonder that the body of the murdered archbishop Effect of Sc rope's began at once to work miracles ; he was a most poj^ular execution, prelate, a member of a great Yorkshire house, and he had died in the act of defending his people against oppression. Nor is it wonderful that in popular belief the illness which clouded Henry's later years was regarded as a judgment for his impiety in laying hands on the archbishop, English history recorded no parallel event ; the death of Becket, the work of four unauthorised excited assassins, is thrown into the shade by the judicial murder of Scrope. Looked at apart from the religious and legal question — and the latter in the case of Mowbray is scarcely less significant than the former in the case of Scrope — these executions mark a distinct change in Henry. Much blood had been shed formally and informally since he claimed the throne ; but in no one case had he taken part in direct injustice, or allowed personal enmity or jealousy to make him vindictive. Here he had cast away every scruple ; he had set aside his remembrance of the man who had j)laced him on the throne on ^ It seems improbable that Fulthorpe sbould under any circumstances have ventured to try Scrope and Mowbray, and it is far more likely that the annalist is right in saying that they were formally condemned by the earl of Arundel and Beaufort, although Beaufort was not one of their peers; Ann. Henr. p, 409. Sir William Fulthorpe is mentioned in the Bolls of Parliament as trying the minor offenders ; Eot. Pari. iii. The statement, however, that Gascoigne refused to pass sentence on Scrope, and that Fulthorpe did it, is made very circumstantially by Clement Maidstone ; Ang. Shc. ii. 369 sq. The Chronicle edited by Dr. Giles, p. 45, maintains Gascoigne's refusal, and adds that Bandulf Everis and Fulthorpe passed sentence by special commission, Hardyng says that Sir John Lamplugh and Sir William Plumpton were beheaded near York, and that the lords Hastings and Fauconberg, Sir John Colville of the Dale, and Sir John Kuthyn were beheaded at Durham (p. 363) ; Stow, Chr. p. 333. ^ A list of the offerings at his shrine is given in the Fabric BoUs of York, pp. 225, 226; letters from archbishop Arundel, bishop Longley, the king, and John of Lancaster, urging the dean and chapter to prevent pilgrimages, are also given there, pp. 193 sq. £ 2 52 Constitutmial History, [chap. Imprudence ^ay of Eichard's deposition ; lie sinned against his conviction of the act. ^j^^ iniquity of laying hands on a sacred person ; he disregarded the intercessions of archbishop Arundel, his wisest friend; he shut his eyes to the fact that he was giving to his enemies the honour of a martyr ; he would not see that the victory which he had won had removed all grounds for fear. He allowed his better nature to be overcome by his more savage instinct. The act, viewed morally, would seem to be the sign of a mind and moral power already decaying, rather than a sin which called down that decay as a consequence or a judgment. New attack Aufjust the kinof went into Wales, where the French were on the o & ' ^ prelates. assisting Glendower, and where he was, as in 1402, prevented by the floods from doing any work. On his return, at AVorcester, the proposal to plunder the bishops was repeated, as it had been in 1403, and sternly repelled by the archbishop. But continued ill-luck produced its usual effect ; from every department of the state, from every minister, from every dependency, from "Wales, Great want Ireland, Guienne and Calais, from army and fleet, came the same o monej. money ^ ; and in answer the king could only say that he had none and knew not where to procure any. The year 1405 was a year of action, the next year was almost entirely occupied with discussions in parliament, the longest liitherto known and, in a constitutional point of view, one of the most eventful. Parliament 636. It opened on the ist of March 2; the chancellor in his of 1406. ^ . . ^ speech announced that the king wished to govern himself by the advice of his wise men, and Sir John Tibetot was chosen speaker. The cause of the summons was announced to be the ^ In the parliaiuent of 1404, John of Lancaster is described as being in great dishonour &nd danger for want of money for his soldiers on the North Marches; Rot. Pari. iii. 552. The prince of Wales is in great distress for the same cause ; Ord. i. 229. Thomas had been crying out for supplies for Ireland since 1401 ; Royal Letters of Henr. IV. pp. 73, 85. The tradesmen of Calais were in despair (Aug. 17, 1404) ; ib. p. 290. In T405 lord Grey of Codnor the governor of South Wales could get no wages ; Ord. i. 277. As late .as 1414, the duke of Bedford sold his plate to pay the gai-rison of Berwick, where wages were £13,000 in airear ; ib. ii. 136. In the parliament of 1406, when the associated merchants applied to the king for £4000, he replied that ' il n'y ad de quoy ' ; Rot. Pari. iii. 570. 2 Rot. Pari. jii. 567. XVIII.] Parliament of 14.06. 53 defence of the king's subjects against their enemies in "Wales, Proceedings Guienne, Cahiis, and Ireland; but the deliberations of the par- ment'/^'^' liament almost immediately took a much Avider scope. On the 23rd of March the speaker, after a protest and apology, an- nounced that the commons required of the king * good and abundant governance,' and on the 3rd of April explained the line of policy which they recommended for the national defence ; the prince of Wales should command in person on the Welsh Marches ; and the protection of the sea should be entrusted to a The mer- body of merchants who were ready to undertake the task ondertakethe condition of receiving the tunnage and poundage and a quarter sea. of the subsidy on wool. After a supplementary demand that the Bretons should be removed from court, and that the king should retain in his hands, at least for a short time, the estates forfeited by the Welsh rebels, the houses adjourned until after Easter \ The estates met again on the 30th of April ; and it was at once Expulsion manifest that a brisk discussion of the administration was im- pending. On the 8th of May the day was fixed for the departure of the aliens^ ; on the 22nd the king was prevailed on to nomi- nate a council of seventeen members, two of whom were Sir John Cheyne and Sir Arnold Sava^^e^. Archbishop Arundel domination -111 of council. having stated that the councillors would not serve unless sufii- cient means were placed in their hands to carry into effect the 'good governance' that was required, the commons addressed a formal remonstrance to the king on the condition of the coasts and dependencies of England. To this Henrj^ could only reply that he would order the council to do their best ^. On the 7 th of June the speaker followed up the attack with still plainer language. The king, he said, was deft'auded by the collectors of taxes ; the Complaints garrison of Calais was composed of sailors and boys who could Sg^s ser-^ not ride ; the defence of Ireland was extravagantly costly, yet ineffective; but above all, the king's household was less * Rot. Pari. iii. 569-571 ; Rymer, viii. 437, 438. The merchants nomi- nated Nicolas Blackburn their admiral April 28 ; Rymer, viii. 439 ; cf. pp. 449. The plan failed and the king stayed the supply of money Oct. 20 ; Rymer, viii. 455 ; Rot. Pari. iii. 610. 2 Rot. Pari. iii. 571 ; Ann. Henr. p. 419. 3 Rot. Pari. iii. 572. * lb. iii. 573. 54 Constitutional History. [chap. Complaints honourable and more expensive than it had ever been, and was against the . ^ household, composed, not of valiant and sufficient persons, but for the most part of a rascally crew ; again, he urged, the state of affairs required good and abundant governance ^ Under this show of remonstrance and acquiescence — for the king agTeed to all that the commons proposed — there was going on, as we learn from the annalist, a struggle about supplies. The commons had demanded that the accounts of Pelham and Furnival should Struggle for be audited : the kinoj declared that kings were not wont to the audit of ' . . . ^ • i i i accounts, render accounts; the mmisters said that they did not know how to do it j the commissioners appointed to collect the taxes imposed in the last parliament did not venture to execute their office from a doubt of their authority ^ At last, on the 19th of June, when the commons were about to separate^, the question of account was conceded, the commons were allowed to choose the auditors, and the speaker announced that they had granted a supply of money for current expenses * ; the king might have an additional poundage of a shilling for a year and a certain fraction of the produce of the subsidy on wool, but the aliens Restriction must be dismissed at once, and the council must before Michael- on the king's . . i • i gifts. mas ascertain what economies could be made m the annuities granted by the king and in the administration of the alien priories. They also insisted on the king's abstaining from bestowing any gifts until the debts of the household had been paid and regulations made for putting an end to the outrageous and excessive expenditure. The parliament then adjourned to the 13th of October. Henry's During the recess, it would appear, Henry's health showed unmistakeable signs of failure. He had been ill ever since his journey into the north in 1405; whether his disease were leprosy, as the chroniclers say, or an injury to the leg aggra- vated by ague, as we might gather from records, or a com- plication of diseases ending in epilepsy, as modern writers have inferred ^, he had before the meeting of parliament become far ^ Rot. Pari. ill. 577. ^ Eulog. iii. 409. 3 Rot. Pari. iii. 577. * lb. iii. 578. ^ On the 28th of April 1406, the King had hurt his leg and was so ill with ague that he could not travel ; Ordin. i. 290. XVIII.] Vote of Confidence. 55 too weak to resist the pertinacious appeals of the commons. Second session of The second session lasted until the 22nd of December. On the 1406. 1 8th of November the speaker again came before the king with the old complaint, and begged that he would charge the lords on their allegiance to take up the work of reform ^ ; but the con- clusion of the complicated transactions of the year is recorded on the 22nd of December. On that day the king empowered the auditors to pass the accounts of Pelham and FurnivaP; a grant of a fifteenth and tenth, tunnage and poundage, was vote of con- made by the commons * for the great confidence which they had fhe council, in the lords elected and ordained to be of the continual council and the other acts of the session were ordered to be engrossed under the eye of a committee elected by the commons The same day a body of articles was presented, which the counsellors at the king's command swore to obey^. These articles comprise a scheme of reform in government, and enunciate a view of the constitution far more thoroughly matured than could be ex- pected from the events of late years. It had pleased the king Scheme of to elect and nominate counsellors pleasing to God and acceptable government, to his people, in whom he might have good confidence, to ad\dse him until the next parliament, and some of them to be always in attendance on his person ; he will be pleased to govern in all cases by their advice, and to trust it. This preamble is followed by thirty-one articles, which forbid all gifts, provide for the hearing of petitions, prohibit interference with the common law, enforce regularity and secrecy, and set before the members as their chief aim the maintenance of economy, justice, and effi- ciency in every public department. The records of the fiivy council contribute some further articles^ which were either withdrawn or kept private ; a good controller was suggested for ^ Rot. Pari. iii. 579. 2 lb. iii. 584. ^ lb. iii. 568. A list of the council nominated Nov. 27 is in the Ordinances, i. 295 ; it is somewhat different from the lists of May 15 and Dec. 22 ; Rot. Pari. iii. 572, 585 ; but the three commoners, Hugh Water- ton, John Cheyne, and Arnold Savage, appear both in May and in November. * Rot. Pari. iii. 585. 5 lb. iii. 585-589. * Ordinances, i. 283-286. 56 Constifuiional Histor?/. [chap. Scheme of reform mooted in council. Length and cost of the session. Acts of suc- cession to tlie crown. Legislation against the Lollards. the household, Sir Arnold Savage or Sir Thomas Bromflete; ten thousand pounds of the new grant might be devoted to the expenses of that department ; but, most significant of all, it was desired that the king should after Christmas betake himself to some convenient place where, by the help of his council and officers, might be ordained a moderate governance of the house- hold, such as might be for the future maintained to the good pleasure of God and the people \ The demands of the commons and the concessions of the king almost amounted to a super- session of the royal authority. This done, the parliament broke up, after a session of 159 days. The expenses of the knights and borough members nearly equalled the sum bestowed on the royal necessities : £6000 were granted to Henry on the last day of the parliament ; the wages of the representatives amounted to more than £5000^ The whole time of the parliament was not, however, occupied in these transactions ; one most important legislative act was the resettlement of the succession. On the 7th of June the crown was declared to be heritable by the king's sons and their male heirs in succession ; this measure involved a repeal of the act of 1404, by which the crown was guaranteed to the heirs of the body of the sons in succession. It was no doubt intended to preclude a female succession. Such a restriction was, how- ever, found to entail inconvenient consequences; and on the 22nd of December it was repealed and the settlement of 1404 restored^. A new statute against the Lollards, founded on a petition of the commons and supported by the prince of Wales, ^ Ordinances, i. 296. Henry V in the first year of his reign was advised bv the council to stay in the neighbourhood of London that he might be within reach of news from all sides; ib. ii. 125. * The returns from thirty-seven counties and seventy-eight boroughs are known. The wages of the knights (knites-mete, Capgr. Chr. p. 293) amounted to £2595 12s. od. Those of the other members calculated on the same principle would make £2854 i6s. od. ; all together £5450 8s. od. See Prynne, Fourth Register, pp. 477-481. 3 Rot. Pari, iii. 574-576, 580-583; Statutes, ii. 151 ; Rymer, viii. 462- 464. The act asserts that the reason for the change was ' quod statutum et ordinatio hujusmodi jus successionis eorundem filiorum suorum et liber- orum eorum, sexum excludendo femininum, nimium restringebat, quod aliquo modo diminuere non intendebant, sed potius adaugere.' XVIII.] Approach of Peace. 57 was likewise enacted in December^. Sentence of forfeiture was passed against Northumberland and Bardolf, but the lords avoided giving a positive opinion as to the guilt of archbishop Scrope One most important statute of the year introduced a Reform in . ... . county reform into the county elections, directing that the knights elections, should be chosen henceforth, as before, by the free choice of the county court, notwithstanding any letters or any pressure from without ; and the return was to be made on an indenture con- taining the names and sealed with the seals of all who took part in the election The liberality of the parliament was, as usual, supplemented J^Jj^J*^^^^ by a grant of a tenth from the clergj^ in convocation and by ^^'^^^^"'^ an exaction from the stipendiary priests of a noble, six and eightpence, a head*. The parliament of 1406 seems almost to stand for an exponent of the most advanced principles of medieval constitutional life in England. The foreign relations of England during the year were com- Foreign paratively easy. The civil war which broke out in Scotland on '*^^^*^°"^- the death of Robert III prevented any regular warfare in the north ; and against Owen Grlendower, with whom Northumber- land and Bardolf sought an asylum, nothing great was attempted. The intestine troubles of France, where the dukes of Burgundy and Orleans were contending for supremacy, made it unneces- sary for Henry to do more than watch for his opportunity. Notwithstanding then a certain amount of disaffection at home, and in spite of the somewhat impracticable conduct of the par- liament, the political position of the king was probably stronger at this time than it had bee^ since the beginning of the reign. 637. It is, however, from this point that may be traced the growth of those gprms of domestic discord which were in process of time to weaken the hold of the house of Lancaster upon ^ Rot. Pari. iii. 583, 584. The exact purport of this act will be found discussed in another chapter. It is not enrolled as a statute. ^ Rot. Pari. iii. 593, 604-607. 3 lb. iii. 601 ; Statutes, ii, 156. * The convocation, which sat from May 10 till June 16, granted a tenth and a subsidy; Wilk. Cone. iii. 284. The subsidy was the 'priests' noble'; Record Report, ii. App, ii. p. 183. The York clergy followed the example, Aug. 18 ; Wilk. Cone. iii. 303 ; of. Stow, Chr. p. 333. 58 Constitutional History. [chap. England, and ultimately to destroy the dynasty. Henry him- self was now a little over forty ; and his sons were reaching the age of manhood. The prince of Wales was in his nineteenth year ; Thomas, the second son, was eighteen ; John, the third, was seventeen; and Humfrey, the youngest, fifteen. Besides these, the family circle included the king's three half-brothers, John Beaufort, who now bore the title of earl of Somerset, and was high chamberlain \ Henry, bishop of Winchester ; and Sir Thomas Beaufort, knight. The sons were clever, forward, and ambitious boys ; the half-brothers accomplished, wary, and not less ambitious men. The act by which Richard II had legiti- mised the Beauforts placed their family interest in the closest connexion with that of the king ; for although that act did not in terms acknowledge their right of succession to the throne, in case of the extinction of the lawful line of John of Graunt, it did not in terms forbid it^; and as heirs of John of Gaunt they would, even if the crown went off into another line, have claims on the duchy of Lancaster. But such a contingency was im- probable ; the four strong sons of Henry gave promise of a steady succession, and in the act of 1406, by which the crown was entailed on them successively, it was not thought necessary to provide for the case of the youngest son's death without issue. Still the Beauforts had held together as a minor family interest ; they seem to have acted in faithful support of the king under all circumstances, and they possessed great influence with the prince of Wales. Henry Beaufort is said to have been his nephew's tutor, and he certainly was for a long time his confidential friend and adviser. The three brothers were the king's friends, the old court party revived in less unconsti- tutional guise; maintaining the family interest under all circum- stances, opposing the parliament when the parliament was in opposition, and opposing the archbishop when the clergy were supporting the cause of the parliament. The archbishop to a great extent embodied the traditions^ dynastic and constitu- tional, of the elder baronage. The Beauforts were the true ^ On this subject see Sir Harris Nicolas's article in the Excerpta Historica, pp. 152 sq. XVIII.] The Boi/al Family. 59 successors to the policy of John of Gaunt, and seem to have inherited both his friendships and his jealousies, in contrast, so far, with the king, who throughout his life represented the principles, policy, and alliances of the elder house of Lancaster. If the Beauforts were a tower of strength to the king, their very strength was a source of danger. The young lords of Lancaster had been initiated early in Employ- public life. Henry had been an eyewitness of the revolution king's^sons^ of 1399, and had retained some affection and respect for his father's victim. At a very early age he had been entrusted with command in Wales, and fought at the battle of Shrews- bury; he was popular in parliament, and had now become an important member of the council. Thomas, the second son, high admiral and lord high steward of England, had been employed in Ireland, where he was made lieutenant in 1401, and where he had early learned how utterly impossible it was to carry on government without supplies. John, the third son, was made constable in 1403, and remained for the most part in England assisting his father in command of the norths He, Family like Henry, was a good deal under the influence of the Beauforts, whilst Thomas, who possibly was somewhat jealous of his elder brother, was opposed to them. Between Arundel and the Beau- forts, the court, the parliament, the mind of the king himself, were divided. One result of the parliamentary action of 1406 was the resig- Arundel nation of the chancellor, Longley, who on the 30th of January, ?enor,f 407." 1407, was succeeded by archbishop AiTindel, now chancellor for the fourth time 2. Ten days later the king confirmed the act by which Richard legitimised the Beauforts, but in doing so, he Beauforts introduced the important reservation ' excepta dignitate regali^' with a Umit. These words were found interlined in Richard's grant on the Patent Rolls, although they did not occur in the document laid before parliament in 1399, which alone could have legal efficacy. Such an important alteration the Beauforts must have regarded ^ He was made warden of the East March, Oct. 16, 1404; Ordinances, i. 269. ' Rymer, viii. 464. s Excerpta Historica, p. 153. 6o Constitutional History. [chap. The Beau- as a proof of Arundel's hostility ; their father had had no love torts adhere „ . . to the for either the archbishop or the earl ; one at least of the brothers prince of . , Wales. must have felt that he had little gratitude to expect from the Arundels. They drew nearer to the prince of Wales and away from the king. The increasing weakness of Henry gave the prince a still more important position in the council ; and the still undetermined question of the loyalty of the duke of York, in whom the prince seems to have reposed a good deal of confidence, probably complicated the existing relations. There was too, no doubt, some germ of that incurable bane of royalty, an incipient jealousy of the father towards the son. Parliament 638. A terrible visitation of the j^lague desolated England in 1407. The rumours that Richard was alive were renewed. The prince of Wales found employment in both marches, for since the rebellion of Northumberland he had taken work on the Scottish border also. The parliament of the year was held in October at Gloucester, and being under the influence of Arundel, showed itself liberal and forbearing ^. On the 9th of November the archbishop announced that the accounts of the recent grants had been spontaneously submitted by the council to the in- spection of the commons ; that the council had been obliged to borrow large sums ^, and wished to be relieved from the oath Money drawn up in the preceding year. On the 2nd of December a grant was made of a fifteenth and tenth, and a half of the same ^ ; of the subsidy on wool and tunnage and poundage for two years ; the king undertaking not to ask the nation for money for two years from the next March The statutes and petitions of the session were mostly devoted to the reduction and pacification of Wales. The merchants were relieved from the defence of the sea, and severe measures were taken against 1 Oct. 20 till Dec. 2 ; Eot. Pari. iii. 608 sq. Arundel preached on ' "Regem honorificate.' Thomas Chaucer was speaker. '■^ A loan of £10,900 was contracted for the payment of the Calais garri- son, on the credit of the lords of the council, June 27, 1407 ; Rymer, viii. 488. 3 Dep. Keeper's Rep. ii. App. ii. p. 184; Rot. Pari. iii. 612 sq. The clergy of York voted a tenth in December 1408 ; Wilk. Cone. iii. 319. * On the 1st of February, 1408, the king by letters patent undertook to retain for the expenses of the household all proceeds of the alien priories, XVIII.] Redress and Supply. 6i extortionate purveyors It was enacted that foreigners should be compelled to contribute to the fifteenths and tenths ^. One discussion, and that historically an important one, disturbed the harmony of the session. The principle that money grants should be initiated in theThecora- house of commons, involved the reasonable doctrine that the the right t6 poorest of the three estates should be left to state the maxi- gSnt?o^ mum of pecuniary exaction, and that the representatives ofthe'mouth the great body of payers should fix the amount of taxation, speaker. That principle had grown into practice but had not yet received authoritative recognition. This session saw a long step taken towards that recognition. On the 2 1 st of November the king in consultation with the lords put to them the ig^uestion what amount of aid was necessary for the public defeiipe ; the lords in reply mentioned the sums that were subsequently granted; the king then summoned a number of the commons to hear and report to the house the opinion of the lords. Twelve of the common^ attended and reported the message. The house at once took alarni • ' the commons were thereupon greatly disturbed,' saying and afiirmi'2^5 in great prejudice and derogation of their liberties. Henry^ who had certainly no object in derogating from the rights* of the commons, and who had probably acted in mere inadvertence, as soon as he heard of the commotion, yielded the point, and with the assent of the lords gave his decision to the effect that it was lawful for the lords to deliberate in the absence of the king on the state of the realm and the needful remedies ; that likewise it was lawful for the commons to do the same ; j^^^o- vided always that neither house should make any report to the king on a grant made by the commons and assejited to by the lords, or on any negotiations touching such grant, until the two houses had agreed ; and that then the report should b,e made through the speaker of the commons 3. This decision has its important relations to earlier and later history ; here it appears vacant sees, wardships, marriages, forfeitures, escapes and fee farms; Rymer, viii. 510. ^ Rot. Pari. iii. 609. 2 Statutes, ii. 161. ^ Hot. Pari. iii. 611. 62 Constitutional Ristory. [chap. as a significant proof of the position which the house of commons had already won under the constitutional rule of Lancaster. SdeS ^^■"^ years Arundel retained the great seal, and the Norfhumi country, as it had desired, remained without a parliament. The berland. great event of 1408 was the final efi'ort of the old earl of North- umberland to unseat the kmg : an attempt more desperate than the last^. In February, in company with lord Bardolf, the abbot of Hales, and the schismatic bishop of Bangor, he advanced into Yorkshire, and on the 19th was defeated by Sir Thomas Rokeby, at the head of the forces of the shire, on Bramham moor. The old earl fell in battle ; Bardolf died of his wounds ; the bishop was taken. In the spring the king went to York and hanged the abbot of Hales. The Welsh war went on without any show of spirit on either side j France had her own troubles to attend to. The king and the archbishop were Foreign and chiefly employed in negotiations for the healing of the great cal affairs, schism, and for the holding of the Council of Pisa ; and in the numerous councils of the clergy, for which this business gave occasion, Arundel saw his opportunity of sharpening the edge of the law against the Lollards. In 1408 councils were held both at London and at Oxford ^, where the Wycliffite party was strong and where another strong party that was not Wycliffite Constitu- resented the interference of the archbishop. In January, 1409, LoUardy. Arundel published a series of constitutions ^ ; one of which for- bade the translation of the Bible into English until such a translation should be approved by the bishop of the diocese or a provincial synod; whilst another prohibited all disputations upon * ' Infausta hora, nempe conceperant tantura de odio vulgari contra regem, et tantum praesumpserunt de favore populi penes se quod omnis plebs illis concurreret et adhaereret relicto rege, ita quod, cum pervenerunt ad Thresk, fecerunt proclamari publice quod ipsi venerunt ad consolationem populi Anglican! et iniquae oppressionis subsidium qua noverant se jam longo tempore oppressum; ' Otterbourne, p. 262. From Thirsk tbey marched to Grimbald bridge near Knaresborough, where they were forbidden to cross the Nidd, and so passed round Hay Park to Wetherby, the sheriff continu- ing in Knaresborough. The next day, Sunday, the earl went to Tadcaster, and on the Monday the battle took place. lb. pp. 262, 263 ; cf. Eulog. iii. 411 ; Wals. ii. 278. 2 Wilkins, Cone. iii. 306. ^ lb. iii. 314-319. The seventh constitution forbids the translation. XVIII.] The Beauforts and Arundel. 63 points determined by the church. Great efforts were made to Disputes at enforce these orders at Oxford, and E,ichard Courtenay, who was chancellor of the university in 1406 and 14 10, seems to have engaged the good offices of the prince of Wales in defence of the liberties of the university^; thus helping to widen the breach between him and Arundel. As was inevitable in the present state of opinion, Arundel's oppressive measures roused both the Wycliffite and the constitutional opposition, and he did not venture to meet another jDarliament ^; he resigned in December, 1409^. A month afterwards Henry gave the seals to his brother, Arundel Sir Thomas Beaufort, a layman not perhaps beyond suspicion of an alliance with the anti-clerical party which his father had led thirty years before. 640. The session of 14 10* was opened on January 27, with a Parliament of 1410. speech by Bishop Beaufort, his brother having not yet assumed his office. Thomas Chaucer, of Ewelme, himself a cousin of the Beauforts ^, was speaker. The Lollards must have been strongly represented, as on the 8th of February the commons prayed for the return of a petition touching Lollardy, which had been ^^^1^*^*°^^ presented in their name, requesting that nothing might beLoUardy. enacted thereon^. No such petition accordingly appears on the roll, but we learn from the historian AYalsingham that it was intended to obtain a relaxation of the recent enactments against the heretics ''. If we may believe the same writer, the * Wilkins, Cone. iii. 323 ; Chr. Henr. ed. Giles, p. 58 ; Wood, History and Antiquities of Oxford, p. 205 ; Anstey, Munimenta cademica, i. 2;i. In a council held Nov. 21, 1409. the king assigned £6f^99 6s. 8cZ. from the subsidies to the expenses of the household ; Rymer, viii. 610. ^ December 21 ; Rymer, viii. 616. The Lord le Scrope of Masham was made treasurer at the same time; Otterb. p. 267; "Wals. ii. 282. * Eulog. iii. 416; Rot. Pari. iii. 622 sq. ^ Thomas Chaucer of Ewelme in Oxfordshire, son of a sister of Katherine Swinford. The king warned him when he admitted him as speaker, that nothing should be said but what was honourable and likely to produce concord ; Rot. Pari. iii. 623. ^ Rot. Pari. iii. 623. ' Wals ii. 283 ; they petitioned for an alteration of the statute of heresy, and that clerks convicted might not be committed to the bishops' prison. The Rolls contain a petition that persons arrested under the statute of 1401 may be bailed in the county where they are arrested, and that such arrests may be made by the sheriffs regularly: but ' le roy se voet ent aviser;' Rot. Pari. iii. 626. The Eulogium (iii, 417) mentions a statute made in this 64 Constitutional History. [chap. Petition of party was so powerful as to attempt aggressive measures ; the knights of the shire sent in to the king and lords a formal recommendation that the lands of the bishops and religious cor- porations should be confiscated, not for a year only, as had been suggested before, but for the permanent endowment of fifteen earls, fifteen hundred knights, six thousand esquires, and a hundred hospitals, £20,000 being still left for the king^. The extra- vagance and absurdity of such a demand insured its own rejec- tion : the lords did not wish for a multiplication of their rivals ; the commons in a wiser moment would scarcely have desired to give strength to the element which, as represented by the Percies and their opponents, had nearly torn the kingdom to pieces. The prince of Wales stoutly opposed the proposal and it was rejected. The king asked to be allowed to collect an annual Henry asks tenth and fifteenth every year when no parliament was sittine^ ^. a revenue , . . for life. This was refused, but he obtained a gift of 20,000 marks and grants of tenths, fifteenths, subsidies, and customs which lasted for two years^. Notwithstanding the Lollard movement, two years of steady government had benefited the country. Still the petitions of the commons testify much uneasiness as to the governance, both internal and external, of the realm and the economy of the court which they tried to bind with stringent rules. It was remembered that in Richard's time the subsidy on wool parliament allowing friars to preach against the Lollards without licence from the bishops. In a convocation held Feb. 17, 1409, the statute 'de heretieo' of 140? was rehearsed at length; Wilk. Cone. iii. 328. ^ Wals. ii. 282, 283. Fajjyan, p. 575, gives a full account of the scheme : the temporalities are estimated at 32 2,000 marks per annum. It is described more fully in Jack Sharp's petition in 1431. It is added that £110,000 jnight be secured for the king; £110,000 for a thousand knights and a thousand good priests, and still there would be left to the clergy £1 43,724 los. 4f\(L. And all this without touching the temporalities of colle:*?es, chantries, cathedrals, or cj^nons secular, Carthusians, Hospitallers, or Crouched Friars. Amundesham (ed. Riley), i. 453-456. WaJ^- ii. 238 ; cf. Otterboume, p. 268. % A fiftv^enth and a half, and a tenth and a half ; Dep. Keeper's Rep. ii. J^pp. ii. p. 184; Rot. Pari. iii. 635; Eulog. iii. 417; Wals. ii. 283. The eiergy of Canterbury met to grant an aid, Feb. 17, 1410; Wilk. iii. 324. Tiie York clergy granted a tenth May 33 ; ib. p. 333. A tenth and a half tonth is mentioned in the Ordinances, i. 342. Commissions were issued for raising a great loan the same year ; ib, p. 343. * B0t. ParLiii. 623-627. XVIII.] Prominence of the Prince. 65 had brought up the national income to <£ 160,000 ; although the The subsidy on wool could not now be calculated at more thanSfcome/ £30,000, there were hopes that it might rise again ^. Half the tenth and fifteenth granted in 14 10 reached the sum of £18,692, and although the charges upon it amounted to more than .£20,000, still the sum was not much smaller than it had been in the prosperous days of Edward III ^. A statute of this session directed a penalty to be exacted from the sheriffs who did not hold the elections in legal form, and made the conduct of the elections an article of inquiry before the justices of assize ^. On the 2nd of May the king's counsellors were named, and all except the prince took the oath required 641. The administration of Thomas Beaufort, like that of The prince , . ^ 111 ofWales his predecessor, lasted only tAvo years; and during this time takes the it is very probable that the prince of Wales governed council, in his father's name. From the month of February, 1410, he appears as the chief member of the council % which fre- quently met in the absence of the king, whose malady was increasing and threatening to disable him altogether. The chief point of foreign policy was the maintenance of Calais, which was threatened by Burgundy, and had thus early begun to be a constant drain on the resources of England. At home the religious questions involved in the suppression of ^ Rot. Pari. iii. 625. The statement made is that the subsidy on wool in the fourteenth year of Richard brought in £160,000 over and above other sources of revenue. It was estimated at £30,000 in 141 1 ; Ordinances, ii. 7. ^ The half tenth and fifteenth is £18,692 19s. 8|cZ. ; Ordinances, i. 344, 345. The charges, £20,639 15.S. 2d.; ib. p. 347: these include the sea- guard, the East March, the West March, Wales, Guienne, and Roxburgh. The estimate for Calais in time of peace was £18,000, in time of war £21,000 a year; that of Ireland about £4500 ; ib. p. 352. ^ Statutes, ii. 162 ; Rot. Pari. iii. 641. * Rot. Pari. iii. 632. ^ The prince's name appears as first in the council from December 1406. Ordinances, i. 295 ; cf. p. 313. A petition is addressed by Thomas of Lan- caster to the prince and other lords of the king's council, June 1410 ; ib. 339. A council was held at the Coldharbour Feb. 8, 1410 ; ib. i. 329. The Coldharbour was given to the prince. Mar. 18, 1410, and he was made captain of Calais the same day; Rymer, viii. 628. He had the ward- ship of the heirs of Mortimer; ib. pp. 591, 608, 639. VOL. III. 65 Constitutional History. [chap. Arundel the Lollards and the reconciliation of the schism were com- again at Oxford. plicated by a renewed attack of archbishop Arundel on the university of Oxford ^ In an attempt to exercise his right of visitation, he was repulsed by the chancellor Courtenay and the proctors. The archbishop, availing himself of his person?J influence with the king, compelled these officers to resign; but, as soon as the university could assert its liberty, they were re-elected, and it was only after a formal mediation proffered by the prince that the conflicting authorities were reconciled. It is more than probable that Arundel's conduct led to a personal quarrel with the prince, who was his great-nephew ; he does not seem to have attended any meeting of the privy council during tins period, or to have lent any aid to the ministers in their attempts Jealovisies in to raise money by loan. Lon^ afterwards, in the reign of the royal . family. Henry VI, it was .remembered how there had been a great quarrel between the prince and the primate, and how the etiquette observed in consequence constituted a precedent for time to come ^. A new cause of ofience appears in the conduct of the king's second son. John Beaufort, the quondam marquess of Dorset, died in April 1410, and, notwithstanding their rela- tionship, Thomas of Lancaster obtained a dispensation for a marriage with his uncle's widow. The bishop of Winchester refused to divide with him a sum of 30,000 marks which he had received as his brother's executor, and a quarrel ensued between Thomas and the Beauforts, in which the prince of The expedi- "Wales took the side of his uncle ^. It was at this juncture that tionoii-tii . to France, the duke of Burgundy, finding himself hard jDressed by the Orleanists, requested the aid of England. The prince of Wales * supported his application ; a matrimonial alliance be- tween him and the duke's daughter was set on foot; and the king furnished the duke with a considerable force ^, which defeated the Orleanists at S. Cloud in November 141 1, and * Wals. ii. 285. ^ Ordinances, iii. 186. 3 Chron. Henr. ed. Giles, p. 62 : Eot. Pat. Cal. p. 259. * Hardyng, p. 367; Rymer, viii. 698 sq. ; Ordinances, ii. 19 sq. 5 The expedition was under the command of the earl of Arundel, Sir John Oldcastle and Gilbert Umfraville, called the earl of Kyme; Chron. Henr. ed. Giles, p. 61. XVIII.] Parliametit of 67 having received their pay returned home. On the 3rd of November the parliament met again ^. 642. This assembly no doubt witnessed scenes which it was Parliament not thought prudent to record; but on the evidence of the extant rolls it is clear that it was not a pleasant session ; and it is probable that the king, under the influence of Arundel or of his second son, made a vigorous effort to shake off the Beauforts. On the third day of the parliament, when Thomas Chaucer, the speaker, made the usual protestation and claimed the usual tolerance accorded to open speaking, the king bluntly told him that he might speak as other speakers had spoken, but that he would have no novelties in this parliament^. Chaucer asked Tlie speaker a day's respite, and made a very humble apology. The estates apologise, showed themselves liberal, granting the subsidy on wool, tun- nage and poundage, and a new impost of six and eightpence on every twenty pounds' worth of income from land^. Yet, not- withstanding their complaisance, they were obliged to petition the king for a declaration that he esteemed them loyal : so great was the murmuring among the people that he had grounds of enmity against certain members of this and the last par- liament. Henry declared the estates to be loyal ^ : but, in refer- The estates ence apparently to some restrictive measure adopted in the last loyai. ^ E.ot. Pari. iii. 647. The council had been busy with the estimates as early as April; there was a deficit of £3,924 6s. ^d. The household ex- penses are £16,000; Ordinances, ii. 1 1, 12, 14. 2 Rot. Pari. iii. 648. ^ Dep. K. Rep. ii. App. ii. p. 184; Rot. Pari. iii. 648, 671 ; Eulog. iii. 419. On the 20th of November, 1410, the king ordered all persons holding forty librates of land to receive knighthood before Feb. 2 ; Rymer, viii. 656. The order to collect the fines thus accruing was issued May 20, 141 1 ; ib. p. 685. The Canterbury clergy on the 21st of December granted a half tenth; Wilk. iii. 337. The York convocation followed, Ap. 29, 141 2; ib. p. 338. * Rot. Pari. iii. 658. The language of the roll is mysterious. The king sent the ehancellor to show the commons an article passed in the last par- liament. The speaker asked the king to say what he wanted to do with it. Henry replied that he wished to enjoy the liberties and prerogatives of his predecessors. The commons agreed and the king cancelled the article. The same day he declared the estates loyal. The article was possibly one of the two (Rot. Pari. iii. 624, 625) which compelled the king to devote all his windfalls to the payment of his debts, and forbade gifts, A letter of the earl of Arundel to the archbishop, complaining of having been mis- represented, probably belongs to the same business; Ord. ii. 117. F 2 68 Constitutional History/. [chap. At the end parliament, he announced that he intended to maintain all the of the session ^ , ^ the ministry privileges and prerogatives of his predecessors. The parliament broke up on the 19th of December; on the 22nd a general pardon was issued ^ ; and on the 5th of January Beaufort resigned the seals The annalists of the period supply an im- perfect clue to guide us through these obscurities. We are told that the Beauforts had advised the prince to obtain his father's consent to resign the crown, and to allow him to be crowned ^he prince in his stead ^; that the king indignantly refused ; and that in consequence the prince retired from court and council, his forts'support ^^^^^^^ Thomas taking his place. It is to be observed that many years later, when Bishop Beaufort was charged by Hum- frey of Grioucester with having conspired against the life of Henry V, and having stirred him up to assume the crown * Rymer, viii. 711. Owon Glendower, and Thomas Ward of Trumping- ton, who personated E-ichard II, were excepted. 2 Rot. Pari. iii. 658. ^ ' In quo parliamento Henricus princeps desideravit a patre suo regni et coronae resignationem, eo quod pater ratione aegritudinis non poterat circa honorem et utilitatem regni ulterius laborare. Sed sibi in hoc noluit penitus assentire, immo regnum cum corona et pertinentiis dummodo haberet spiritus vitales voluit gubernare. Unde princeps quodaramodo cum suis consiliariis aggravatus recessit et posterius quasi pro niajori parte Angliae omnes proceres suo dominio in homagio et stipendio copulavit.' Chron. ed. Giles, p. 63. ' Interea dominus Henricus princeps offensus regis familiaribus qui ut fertur seminaverunt discordiam inter patrem et filium scripsit ad omnes regni partes, nitens repellere cunctas detractorum machinationes. Et ut fidem manifestiorem faceret praemissorum, circa festum Petri et Pauli venit ad regem patrem cum amicorum maxima frequentia et obsequentium turba qualis non antea visa fuerit his diebus. Post parvissimi temporis spatium gratulabunde susceptus est a rege patre, a quo hoc unum petiit ut delatores sui si convinci possent punirentur, non quidera juxta meritum sed post compertum mendacium citra condignum. Rex vero postulanti videbatur annuere, sed tempus asseruit expectari debere parlia- menti, videlicet, ut hii tales parium suorum judicio punirentur.' Otter- bourne, p. 271. According to the Chronicle of London Henry came to London with a great retinue in July 141 2 and attended council on Sept. 23, 'with a huge people' ; Chron. Lond. p. 94 ; Stow, Chr. p. 339. ' Eodem autem anno facta fuit conventio inter principem Henricum primogenitum regis, Henricum episcopum Wintoniensem et alios quasi omnes dominos Angliae, uter ipsorum alloqueretur regem ut redderet coronam Apgliae, et permitteret primogenitum suum coronari, pro eo quod erat ita horribiliter aspersus lepra. Quo allocuto ad consilium quorundam dominorum cedere noluit sed statim equitavit per magnam partem Angliae non obstante lepra supradicta'; Eulog iii. 421. Some other authorities are given in Mr. Williams' Preface to the Gesta Henrici V. Cf. English Chronicle, ed. Davies, p. 37 ; Elniham, ed. Hearne, p. 11. XVIII.] Arundel again Chancellor. 69 during his father's lifetime, he solemnly denied the former charge, but was much more reticent as to the latter ^. It can scarcely be doubted that the matter had been broached, and pos- sibly had been proposed in parliament on the first day of the session, which seems to have been opened whilst the king was absent through illness, although on the third day he was able to receive and rebuke the speaker. But whatever were the-^^^undel ^ returns to circumstances, the result is clear : Beaufort resimed the seals, power, and ' ' ^ . ' the foreign Arundel returned to power ; very soon afterwards the prince P^^^^y^ ceased to attend the council ^ ; almost immediately the king transferred his friendship from the duke of Burgundy to the duke of Orleans, and sent an army to his assistance under Thomas, who in prej)aration for his command was made duke of Clarence. The dates of these transactions are tolerably clear. On the 5th of January Arundel took the seals; on the i8th of February the prince received payment of his salary for the time that he had served on the council : negotiations were still pending with Burgundy. On the i8th of May the king con- cluded his league with Orleans, the prince withholding his consent for two days longer. On the 9th of July Thomas was made duke of Clarence. Money for the expedition was raised by Second , expedition loan ^. The result of Clarence's enterprise was neither honourable to France. nor fortunate ; finding that the contending parties had united against him, he ravaged Normandy and Gruienne, and was bought off at last by Orleans. It would appear that the enemies Attack on , . . the prince of the prince of Wales were not content with dislodging him of Wales, from power ; a slanderous charge was brought against him for receiving large sums for the wages of the Calais garrison, and ^ Eot. Pari. iv. 298 ; see below, pp. 103, 104 ; Hall, Chr. p. 133. ^ 'Then the king discharged the prince of his counsayle, and set my lord syr Thomas in his stede.' Hardyng, p. 369. On the 1 8th of Feb. 141 2, Henry received 1000 marks as his wages 'tempore quo fuit de consilio ipsius domini regis'; Pell Rolls; Tyler, Henry of Monmouth, i. 298. For the story of Henry carrying off his father's crown, see Wavrin, P- 159- Rymer, viii. 757. Archbishop Arundel lent 1000 marks for the ex- pedition, July 12; ib. p. 760; Ordin. ii. 32. The bishop of Winchester was not asked to lend. 70 Constitutional Ristory. [chap. Illness of the king. He calls a parliament and dies. not paying them. The matter came before the council, and the charge was disproved ^. 643. In the autumn of 141 2 the king became so ill that his death was expected ; he had periods of insensibility, and was much troubled in mind as well as in body. It is even possible that the action of an ill-informed conscience, working upon a diseased frame, made him look back with something like remorse on the great act of his life. He had intended too to go once more on crusade^, and had made great preparations, hoarding perhaps for the purpose even when money was most scarce. If his illness were to result in death, it would be a sign that his great atonement was not accepted. It was said that he professed that he would have resigned the crown to the right heirs but for fear of his sons, who would not part with their inheritance ^ : anyhow he must have shuddered when he thought of the bloodshed with which his throne had been secured. After a very dangerous attack, however, at Christmas, 141 2, he rallied, and even called bis parliament to meet on the 3rd of February The parliament met on that day, but it is not certain that it was formally opened ; no record of its action is preserved ; and on the 20th of March the king died. He was buried in Canterbury, the great sanctuary of the English nation, near his uncle the Black Prince. This summary survey of the reign opens some important questions for which it furnishes no adequate answer. There ^ Ording-nces, ii. 34, 35 ; Elmham, ed. Hearne, p. ir. Nov. 20, 141 2, a council was held at Whitefriars to prepare for the crusade; Fabyan, p. 576; Hall, Chron. p. 45; Eastall, j). 244; Leland, Coll. ii. 487. ^ John Tille the king's confessor moved him to do penance for the murder of Richard, the death of Scrope, and the pretended title to the crown ; he replied that on the first two points he had satisfied the pope and been absolved ; ' as for the third point it is hard to set remedy, for my children will not suffer that the regalia go out of our lineage.' Capgr. Chr. p. 303. The author, however, who tells this story of Edward IV, in an earlier work puts some very pious advice to his son in the dying king's mouth, and says nothing about penance; Capgr. 111. Henr. p. iii. Hardyng(p. 369) gives a dying speech, but says that the king said nothing about either repentance or restitution. Stow, p. 340, on the other hand, has a speech full of peni- tence, especially warning Henry against the ambition of Clarence. * Lords' Report, iv. 8x3. XVIII.] Poverty and Disaffection. 71 are two hostile and most dangerous influences at work during Causes of the first half of it ; the extraordinary poverty of the country, ties of the and, partly resulting from it, the singular amount of treason and insubordination which reached its highest point in the rebellion of the Percies. Of the first of these it is now impossible to say how far it was real or how far fictitious : it is possible that the country was now beginning to realise fully the result of the long- continued drain caused by the wars of Edward III and the ex- travagance of Richard II: it is possible that the public feeling of insecurity had led men to hoard their silver and gold, instead of contributing to the support of a government which they did not ' believe to be stable. Whichever be the true hypothesis, the Poverty of king's poverty and the national distress served to augment dis- affection : the hostile action of the Percies was unquestionably caused by financial as well as political disputes. The second evil influence was in gi-eat measure the result of Henry's ill luck, his inability to close the Welsh war, and the tardiness of his preparations against France and Scotland. The moment Disaffection his personal popularity waned, the popular hatred of Richard began to diminish also : the mystery of his death gave open- ing for a semi-legendary belief that he was still alive ; and that faith, whether false or genuine, became a rallying point for the disaffected, the last cry of desperate men like Northumberland and Bardolf. Welcome as Henry's coming had been, violence , had been done to the conscience of the nation, and it needed only misfortune to stimulate it into remorse for the past and misgiving for the future. And there were physical evils to boot, famines and plague. There was the religious division to complicate matters still more; for Richard's court had been inclined to Lol lardy, while Henry, under whatever temporary in- fluence he acted, was hostile to the heretics. Yet on the whole Work of Henry left behind him a strongly founded throne, and a national power vastly greater than that which he had received at his coronation. And some portion of the credit is due to him personally : he was not fortunate in war ; he outlived his early popularity ; he was for years a miserable invalid ; yet he reigned as a constitutional king ; he governed by the help of his 72 Constitutional History. [chap. strength of the commons. Power of archbishop Arundel. Character «f the reign, of Henry IV in relation to that of Henry V. parliament, with the executive aid of a council over which par- liament both claimed and exercised control. Never before and never again for more than two hundred years were the commons so strong as they were under Henry lY ; and in spite of the dynastic question, the nation itself was strong in the determined action of the parliament. The reign, with all its mishaps, exhibits to us a new dynasty making good its position, althougli based on a title in the validity of which few believed and which fewer still understood ; notwithstanding extreme distress for money, and in spite of much treachery and disaffection. All the intelligent knowledge of the needs of the nation, all the real belief in the king's title, is centered in the knights of the shii^e ; there is much treason outside, but none within the walls of the house of commons. The highest intelligence, on the whole, however, is plainly seen to be Arundel's, and next to his, although in opposition for the time, that of the prince of Wales. The archbishop knows how to rule the commons and how to guide the king ; he believes in the right of the dynasty, and, apart from his treatment of the heretics, realises the true relation of king and people. If his views of the relation of Church and State, as seen in his leading of the convocation, are open to exception, he cannot be charged with truckling to the court of Rome. 644. The reign of Henry IV had exemplified the truth, that a king acting in constitutional relations with his parliament may withstand and overcome any amount of domestic difficulty. He had known when to yield and when to insist, and thus, in spite of the questionable character of his title, much ill success, harassing poverty, unwearied and unsuspected treasons, bad seasons, and bad health, he had laid the foundations of a strong national dynasty. His parliamentary action was one long struggle, but it was a struggle fairly conducted, and he, as well as the parliament, stood by the constitutional com- promise, maintained the constitutional balance. The history of Henry V exhibits to us a king acting throughout his reign in the closest harmony with his parliament, putting himself forward as the first man of a nation fairly at one with itself on all XVIII.] Character of Henry V. 73 political questions, a leader in heart and soul worthy of Eng- land, and crowning his leadership with ample signal successes. Henry IV striving lawfully had made his own house strong ; Henry V leading the forces with which his father had striven made England the first power in Europe. There were deep and fatal sources of weakness in his great designs, but that weakness was hot in his position at home ; it was not constitutional weak- ness, although the result which it precipitated went a long way towards destroying the constitution itself. It is one of the penalties which great men must pay for their Henry v as ^ , ^ . . ^ wan-ior. greatness, that they have to be judged by posterity according to a standard which they themselves could not have recognised, be- cause it was by their greatness that the standard itself was created. Henry Y may be judged and condemned on moral principles which have emerged from the age in which he was a great actor, but which that age neither knew nor practised. He renewed a great war, which according to modern ideas was without justi- fication in its origin and continuance, and which resulted in an exhaustion from w^hich the nation did not recover for a century. To modern minds war seems a terrible evil, to be incurred only on dire necessity where honour or existence is at stake ; to be justified only by the clearest demonstration of right ; to be con- tinued not a moment longer than the moral necessity continues. Perhaps no war ancient or modern has been so waged, justified, or concluded ; men both spoke and thought otherwise in earlier times, and in times not so very far distant from our own. For Changes in medieval warfare it might be pleaded, that its legal justifications of war!"^^*^ were as a rule far more complete than were the excuses with which Lewis XIV and Frederick II defended their aggressive designs ; for the kings of the middle ages went to war for rights, not for interests, much less for ideas. But it must be further remem- bered, that until comparatively late times, although the shedding of Christian blood was constantly deplored, war was regarded as the highest and noblest work of kings; and that in England, the history of which must have been Henry's guide, the only three unwarlike kings who had reigned since the Conquest had been despised and set aside by their subjects. The war with France was 74 Constitutional History. [chap. War with not to him a new war, it had lasted far be3^ond the memory of Fr&ncG 3.11 hereditary any living man, and the nation had been educated into the belief doctrine. , . . „ . . . that the struggle was one condition of its normal existence. The royal house we may be sure had been thoroughly instructed in all the minutiae of their claims ; the parliament insists as strongly on the royal rights as on its own privileges, and the fall of Henry VI shows how fatal to any dynasty must have been the renunciation of those rights. The blame of continuing the war when success was hopeless, if such blame be just, does not fall on Henry V, who died at the culminating point of his successes, and whose life, if it had been prolonged, might have consolidated what he had won. Judged by the standard of his time, judged by the standard according to which later ages have acted, even whilst they recognised its imperfection, Henry Y cannot be condemned for the iniquity or for the final and fatal results of his military policy. He believed war to be right, he believed in his own cause, he devoted himself to his work and he accomplished it. Henry V as ^ similar equitable consideration Avould relieve him from the a religious ^ persecutor, imputation of being a religious persecutoi;. He lived in an age in which religious persecution was rife ; in which it was incul- cated on kings as a duty, and in which it was to some extent justified by the tenets of the persecuted ; for one of the miseries of authoritative persecution is that it arrays the rebel against both spiritual and tempoi*al authority. Besides the germs of social and political destructiveness which were inherent in the Lollard movement, the persecution regarded the Lollards not merely as heretics but as traitors, and not only regarded them as such but made them so, leagued them with the Welsh and Scots, and implicated them in every conspiracy against the reigning house. This may be lamentable, but it is a consider- ation which equity cannot disregard. Posterity may well con- demn all persecutors who have loved persecution ; it capnot without reservation condemn those who have persecuted merely as a religious or as a legal duty. Henry V persecuted, as his father had done, but even when he persecuted on religious and not on political grounds, he did it with a singular reluctance to XVIII.] Character of Henry V. 75 undertake the vindictive part of the work^ To his mind it was as a correction for the soul of the sinner, and a precaution against evils to come, not as mere exercise of justice. There is proof enough of this in the way in which he personally at- tempted to convert the heretic Badby^, and in the impolitic delay which encouraged Oldcastle. If we set aside the charges of sacrificinoj the welfare of his coun- Greatness . . ... of Henry's try to an unjustifiable war of aggression, and of being a rehgious character, persecutor, Henry V stands before us as one of the greatest and purest characters in English history, a figure not unworthy to be placed by the side of Edward I. Xo sovereign who ever reigned has won from contemporaiy writers such a singular unison of praises^. He was religious, pure in life, temperate, liberal, careful and yet splendid, merciful, truthful, and honour- able ; ' discreet in word, provident in counsel, prudent in judg- ment, modest in look, magnanimous in act ;' a brilliant soldier, a sound diplomatist, an able organiser and consolidator of all forces at his command ; the restorer of the English navy, the founder of our military, international and maritime law*. A true Englishman, with all the greatnesses and none of the glaring faults of his Plantagenet ancestors, he stands forth as the typical medieval hero. At the same time he is a laborious man of business, a self-denying and hardy warrior, a cultivated scholar, and a most devout and charitable Christian. Fortunately perhaps for himself, unfortunately for his country, he was cut off before the test of time and experience was applied to try the ^ Henry was reproved by Thomas Walden for his great negligence in regard to the duty of punishing heretics; Tyler, ii. 9, 57, quoting Von der Hardt, i. 501 and L'Estrange, ii. 282 ; Goodwin, App. p. 361. 2 Wals.^ii. 282. ^ For Henry's character see Walsingham, ii. 344 ; ' le plus vertueus et prudent de tous les princes Christiens rengnans en son temps ' ; Wavrin, p., 167. He was severe, *et bien entretenoit la disciplene de chevallerie conmae jadis fasoient les Rommains' ; ib. p. 429. See Aeneas Sylvius, De Viris niustribus; Pauli, v. 175. Elmham and Titus Livius are professed panegyrists. * Henry's Ordinances for his armies maybe found in Excerpta Historica, p. 28; Nicolas' Agincourt, Appendix, pp. 31 sq. ; his dealings with the navy in the Proceedings of the Privy Council, vol. v. pref. cxxviii sq. ; and in Sir H. Nicolas' History of the Navy ; Black Book of the Admiralty, vol. i. pp. 282, 459, &c. See also Bernard's Essay on International Law, in the Oxford Essays. 76 Constitutional History . [chap. Advantages of his posi- tion com- pared with that of Henry IV. He imrne- diately displaces Anindel. Dismissal of justice Gascoigne. fixedness of his character and the possible permanence of his plans. In his English policy he appears most distinctly as a reconciling and uniting force. He had the advantage over his father in t\yo great points : he was not even in a secondary degree answerable for the difficulties in which Henry IV had been involved by the very circumstances of his elevation ; and he had, what Henry IV perhaps had not, an unshaken confidence in his own position as a rightful king. He could afford to be merciful ; he loved to be generous ; he saw it was his policy to forgive and restore those whom his father had been obliged to repress and punish. The nobility and the wisdom of this policy not only made him supreme as long as he lived but ensured for his unfortunate son thirty years of undisputed sovereignty, a period of domestic peace which ended only when the principles on which it was based were, by misfortune, im- policy, and injustice, themselves subverted. 645. Henry IV died on the 20th of March, and on the 21st Henry V removed archbishop Arundel from the chancery and put bishop Beaufort in his place ; on the same day he made the earl of Arundel treasurer in the place of lord le Scrope ; on the 29th he removed Sir William Gascoigne the chief justice of the bench ^ In the two former appointments nothing more was done than was reasonably to be expected. Beaufort was Henry V's minister as distinctly as Arundel was Henry IV's j the earl of Arundel had supported him as prince contrary to the wishes of his uncle the archbishop, and it was important to the new king not to offend the Arundel interest, although he could not act cordially with its most prominent representative. The dis- missal of Sir William Gascoigne can by itself be easily accounted for ; Gascoigne was an old man, who had been long in office, and a great country gentleman, who might fairly claim to rest in his later years. But tradition has attached to the name of Gas- coigne a famous story, which, were it true, would have its bearing on the character of Henry V. Gascoigne had probably, for the evidence is not very clear, refused to join in the judicial murder of archbishop Scrope : popular tradition, more than a hundred ^ Foss, Tabulae Curiales,p. 32; Dugdale, Origines, ad ann. win.] Traditions of Henry V. 77 years later, made him the hero of a scene in which Henry, when Legend of prince of Wales, was represented as striking the judge upon the bench in defence of an accused servant, and as obeying the man- date of the same judge when he committed him to prison for the violence done to the majesty of the law^. It is not only highly improbable, but almost impossible that such an event could have taken place : the story was one of a series of traditions which represented Henry V as a wild dissolute boy at the very times when either at the head of his father's forces he was repressing the incursions of the Scots and Welsh, or at the head of his father's council was leading high deliberations on peace and war and national economies. The story of Gascoigne must be taken at its true value. The legends of the wildness of Henry's youth Traditional ° . refoi-mation are so far countenanced by contemporary authority that the of Henry v period of his accession is described as a point of time at which accession, his character underwent some sort of change ; ' he was changed into another man' says Walsingham, 'studying to be honest, grave, and modest^,' If the words imply all that has been inferred from them, Henry may at least plead that his wild acts were done in public ; his follies and indiscretions, for vice is not laid to his charge, were the frolics of a high-spirited young man indulged in the open vulgar air of town and camp ; not the deliberate pursuit of vicious excitement in the fetid atmosphere of a court. The question however concerns us here only as connected with the change of ministers. If there had been any real change in Henry's character, manifested on the occasion of his father's death, it would have been more likely to make him retain than remove his father's servants. One difficulty im- mediately resulted from the measure : the removal of Arundel from the chancery at once enabled him to renew his attack on * On this and the points of chronology connected with it, see Foss, Biographia Juridica, pp. 290 sq. Eecent investigation has thrown no new light upon the story, whicli first turns up in Elyot's Govemour, Book II. c. 6, written in 1534 : cf. Pauli, Gesch. v. Engl. v. 71. ^ Wals. ii. 290 ; Capgr. Chr. p. 303. Hardyng's words (p. 372) read like a translation of Walsingham. Fabyan, p. 577, charges Henry before his father s death with all vice and insolency, after it ' soda^Tily he became a newe man.' Cf. Hall, Chr. p. 46 ; Elmham (ed. Heame), p. 12 ; and Pauli, Gesch, v. Engl. v. 70 sq. 78 Constitutional Khtory. [chap. the Lollai-ds, and emboldened the Lollards to more hopeful resistance. Henry's first 646. The parliament which had met befoie the death of parliament. ^ . . i t Henry IV continued to sit as the first paruament of his suc- cessor ; but it was not called on for despatch of business until after the coronation, which took place on the 9th of April, 14 13. On the 15th of May the session opened with a speech from Taxes Mid Beaufort, and the assembly sat until the 9th of June^. Ample provision was made for the maintenance of the government ; the subsidy on wool was granted for four years for the defence of the realm, tunnage and poundage for a year, and a fifteenth and a tenth for the keeping of the sea : and the king was allowed a 'preferential' claim on the public revenue, to the amount of £10,000, for the expenses of his household, chamber, and ward- robe ^ The commons spoke their minds plainly as to the weak- ness of the late reign and the incompleteness of national de- fence^. The law of 1406 on elections of knights was confirmed and amended with a clause ordering that residents only should be chosen^; the measures taken against the aliens were enforced^ the king granted a general pardon, and the usual anti-papal peti- tions presented and accorded. Another significant event of the year was the translation of the body of Richard II from Langley to Westminster ; an act by which Henry no doubt intended to symbolise the burial of all the old causes of enmity ^. Attacks the Archbishop Arundel had lost no time in proceeding Lollards. against the Lollards. The convocation which had met on March 6 ^ Rot. Pari. iv. 3-14. The members had their wages from Feb. 3 to June 9 ; ib p. 9. 2 Rot. Pari. iv. 5, 6; Dept. K. Rep. ii. App. ii. p. 185. ^ 'Reher9ant qu'en temps notre seigneur le roy son pier, qui Dieux assoile, y feust pluseurs foitz requis par les ditz Communes de bon gover- nance et lour requeste grauntee. Mes coment y feust tenuz et perfourne en apres mesme notre seigneur le roy en ad bone conisance ' ; Rot. Pari. iii. 4. ' Bon governance ' is defined as ' due obeissance a les lois deins le roialrne'; ib. * Rot. Pari. iv. 8 ; Statutes, ii, 1 70. ^ December ; Chr. Lond. p. 96 : ' Non sine maximis expensis regis nunc, qui fatebatur se sibi tantum venerationis debere quantum patri suo carnali' ; Wals. ii. 297; Otterbourne, p. 274. He had been knighted by Richard. Hardyng says also that he gave licence for offerings to be made at the tomb of archbishop Scrope ; p. 372. XVIII.] Sir John Oldcastle. 79 had sat by prorogation until the end of June, and had voted a tenth to the king. Before this body Arundel had laid a pro- position to attack Lollardy in the high places of the court. It was resolved that there was no chance of preventing the schism imminent in the English church unless those magnates who protected the heretics were recalled to due obedience^. Of these Sir John . Oldcastle, the chief was Sir John Oldcastle, a Herefordsliire knight, who lord . ^ Cobham. had sat in the house of commons in 1404, and who by a sub- sequent marriage with the heiress of the barony of Cobham had, in 1409, obtained summons to the house of lords as lord Cobham. Oldcastle was a personal friend of the king, and had been joined with the earls of Arundel and Kyme in command of the force sent at Henry's instigation to France in 141 1. He was an intelligent and earnest Lollard, and had taken pains to spread the influence of the sect, by the preaching of unlicensed itinerants, in his Herefordshire and Kentish estates. Against His trial and perse- him a formal presentment was made by the convocation, and verauce. after consultation with the king, who tried by personal argument to bring him over, he was summoned to appear before the arch- bishop and the bisliops of London, Winchester, and Bangor^. Having refused to receive the first citation he received a second summons to appear at Leeds on the iith of September; not presenting himself there he was called once more by name and declared contumacious. In consequence of this he was arrested by the king, and appeared before the archbishop in custody of the keeper of the Tower on the 23rd of September. A long dis- cussion ensued, during which Oldcastle proffered an orthodox confession ; but, being pressed by the archbishop with distinct questions on the main i)oints of Lollard doctrine, refused to renounce them. He was therefore condemned as a heretic on His con- the 25th, and returned to the Tower, a respite of forty days and escape, being allowed him in hopes of a recantation. Almost imme- diately, however, he effected his escape, and the country, which had been already alarmed by the declaration that a hundred ^ Wilkins, Cone. iii. 353. ^ On Oldcastle's trial see Walsingham, ii. 291-297; Otterb. p. 274; Fascic. Zizan., pp. 433-450; Capgr. 111. Henr. p. 113; Wilkins, Cone. iii. 351-357 ; Rymer, ix. 61-66, 89, 90 ; Hall, Chr. pp. 48 sq. 8o Constitutional History. [chap. thousand Lollards were prepared to rise, was thrown into a panic. The sentence of excommunication and the rewards offered for his capture were alike ineffectual, and it was found that at Christmas an attempt was to be made to seize the king at Eltham. Henry defeated this by coming up to London, but the conspirators were not discouraged, and a very large con- course was called to meet in S. Giles's fields on the 12th of January, 1 4 1 4. Henry, by closing the gates of London, prevented the disaffected citizens from joining in the proceedings, and with a strong force took up his position on the ground. Some un- fortunate people were arrested and punished as heretics, but Oldcastle himself escaped for the time. He was then summoned before the justices and declared an outlaw. He failed in an attempt to excite a rebellion in 141 5 in connexion, it was said, with the Southampton plot. In the year 14 17 however, when Henry was in France, he was captured on the Welsh marches, brought up to London, and cruelly put to death ^. With this abor- tive attempt the politico-religious schemes of the Lollards disap- pear for many years, although the effects of the alarm were very considerable. Archbishop Arundel died in the following February, and his successors were more moderate, and more politic in the ways they took to repress the evil. It may be questioned ^ There is no doubt that Oldcastle's proceedings, overt and secret, added to Henry's difficulties in the opening of the second French campaign. When Thomas Pajm, Oldcastle's secretary, was captured. Henry V declared that the taking pleased him more ' than T had geten or given him £10,000, for the great inconveniences that were like to fall in his long absence out of his realm'; Ordinances, v. 105 ; Exc, Hist. p. 146. The writings of the Lollards were spread through the country ; Oldcastle either was, or was said to be, in league with the Scots and with the Mortimer party in Wales, and to have relations with the pseudo-Richard even at the last ; Elmham (ed. Cole), p. 151 ; Wals. ii. 307. Capgrave says that he ventured to propose to the king a bill for confiscating the temporalities of the church, which was presented by Henry Greyndore ; 111. Henr. p. Sir John Greyndore was a tenant of the Mortimers ; Ellis, Orig. Letters, 2nd Series, i. 26. See also Elmham (ed. Cole), p. 148. Oldcastle was captured towards the end of I417 ; brought to London on a warrant of the council dated Dec. i ; and taken before the parliament as an outlaw for treason and as excommuni- cated for heresy. On the 14th the commons petitioned for his execution ; the sentences of the justices and of the archbishop were read the same day ; the lords, with the consent of the duke of Bedford the guardian of the kingdom, sentenced him to execution ; and he was diawn, hanged, and burned, Dec. 14; Rot. Pari. iv. T07-110. xviii.] Parliament of Leicester. 8i whether the movement which is thus connected with the name Strong of Oldcastle has any very definite analogy with the popular HelS^ v. commotions of 1381 and 1450; but it is obvious that if the prompt and resolute policy adopted by Henry V had been taken in those years, the tumults then raised might have been effectu- ally prevented ; if Richard II or Henry VI had had to deal with Oldcastle, the meeting at S. Giles's fields might have assumed the dimensions of a revolution. The character of Oldcastle as a traitor or a martyr has long been a disputed question between different schools j perhaps we shall most safely conclude from the tenour of history that his doctrinal creed was far sounder than the principles which guided either his moral or his political conduct. 648. The alarm had scarcely subsided when the parliament Parliament . . . .at Leicester met, April 30, at Leicester ^ ; and the chancellor in his opening in 1414. speech declared that one of the causes of the summons was to provide for the defence of the nation against the Lollards ; the king did not ask for tenths or fifteenths, but for advice and aid in good governance. A new statute was accordingly passed against New law the heretics, in which the secular power, no longer content to aid Sardy. in the execution of the ecclesiastical sentences, undertook, where it was needed, the initiative against the Lollards^. Judged by the extant records the session was a quiet one ; the estates granted tunnage and poundage for three years, and obtained one great constitutional boon, for which the parliaments of Edward III and Richard H had striven in vain ; the commons Statutes to prayed, that 'as it hath been ever their liberty and freedom that without there should no statute or law be made unless they gave thereto words of the i 1 . > T 1 , 1 . . . petitions on their assent, 'there never be no law made on their petition which they * and engrossed as statute and law, neither by addition nor by * diminution, by no manner of term or terms the which should change the sentence and the intent asked.' The king, in reply, granted that 'from henceforth nothing be enacted to the petitions of his commons that be contrary to their asking, whereby they should be bound without their assent ; saving * Rot. Pari. iv. 15-33. lb. iv. 24 ; Statutes, ii. 181 ; Wilkins, Cone. iii. 358. VOL. III. G 8z Constitutional Kidory. [chap. alway to our liege lord his prerogative to grant and deny what Promotion him list of their petitions and askings aforesaid^/ In this of the king's ^ , . ^ . . brothers and session the king created his brothers John and Humfrey dukes men. of Bedford and Gloucester, and his cousin Kichard of York, earl of Cambridge, The duke of York was declared loyal and relieved from the risks which had been impending since 1400 ; and Thomas Beaufort was confirmed in the possession of the Confi|cation earldom of Dorset ^. The possessions of the alien priories, which priories. had, since the beginning of the war under Edward III, retained a precarious hold on their English estates, were, on the petition of the commons, taken for perpetuity into the king's hands ^. Nego^aticms Although the rolls of parliament are completely silent on the subject, it may be fairly presumed that the question of war with France was mooted at the Leicester parliament ; for soon after the close of the session, on the 31st of May, the bishop of Durham and lord Grey were accredited as ambassadors to Charles VI with instructions to negotiate an alliance, and to debate on the restoration of Henry's rights — rights which were summed up in his hereditary assumption of the title of King of J^°spect of Erance It is not improbable that the design of a great war was now generally acceptable to the nation. The magnates were heartily tired of internal struggles, and the lull of war with Scots and "Welsh gave them the opportunity of turning tlieir arms against the ancient foe. The king himself was ambitious of military glory and inherited the long-deferred designs of his father, his alliances, and his preparations. The clergy were willing to further the promotion of a national design which at the same time would save the church from the attacks of the Lollards ^. The people also were ready, as in prosperous times they always were, to regard the dynastic aims of the king as the lawful and indispensable safeguards of the nation. The historians who in ^ Rot. Pari. iv. 22. 2 j^. iv. 17. ^ lb. iv. 22 ; Mon. Angl. vi. 1642 ; Rymer, ix. 280, 281. * Rymer, ix. 131. The parliament broke up May 19; the ambassadors were accredited May 31. ^ See Fabyan, p. 578 ; Leland, Coll. ii. 490. 'It was concluded by the said coimcil, and in especial by the spiritualty, that he should go and get Normandy, and they should help him to their power. It is said that the spiritualty feared sore, that if he had not had to do without XVIII.] Preparations for War, the later part of the century looked back through the obscurity Share of the of the civil war and the humiliation of the house of Lancaster, promoting , , • ,.1 1 . . 1 1 war. and still more the writers oi the next century, who visited the sins of the clergy upon their predecessors, asserted that the war was precipitated by the line of defence taken up by the bishops against the Lollards ; and according to the chronicler Hall the par- liament of Leicester saw the first measures taken ^ The story runs that the petition of 1410 was introduced again by the Wycliffite knights, and that in reply archbishop Chichele suggested and argued for a French war, the old earl of Westmoreland answering him and recommending instead a war with Scotland. These exact particulars cannot be true ; Chichele did not sit as archbishop in the Leicester parliament, and the speeches bear manifest tokens of later composition ^. But it is by no means improbable that, the project of war once broached, the bishops promoted it and promised their assistance : nor does it follow that in so doing they, any more than the king or the barons, should be deemed guilty of all the misery that ensued. It is possible too that the resumption of the alien priories may have been the result of some larger proposition of confiscation. However broached, the the land, that he would have laboured for to have take fro the church the temporal possessions, and therefore they concluded among themself that they should stir him for to go and make war over sea in France, for to conquer his rightful inheritance'; Cont, Polychr. (ed. 1527) f. 329. The advice given by the council (Ordinances, ii. 140) seems sound enough ; the lords know well that the king will attempt nothing that is not to the glory of God, and wall eschew the shedding of Christian blood; if he goes to war the cause will be the refusal of his rights, not his own wilfulness. They recommend him to send ambassadors first ; if that is done, and the peace of the realm provided for, they are ready to serve him to the utmost of their power. The council in which this was done is not dated. Cf. Tyler, Henry of Monmouth, ii. 72. 1 Hall, Chr. p. 49. ^ The parliament sat from April 30 to May 19; Lords' Eeport, i. 497. Chichele had the royal assent to his election March 23 ; but he was not provided by the pope until April 2 7, and received the temporalities only on May 30. His name does not occur either as archbishop or as bishop of S. David's in the parliamentary roll. Hall (Chr. p. 49) says that he was newly made archbishop, having before been a Carthusian (!) But the speeches abundantly supply the refutation of the story in this form ; the earl of Westmoreland quotes John Major the Scottish historian who was bom in 1469. Wliether Hall or some contemporary writer composed them, we cannot decide ; there is an outline or abridgment of them in Redmayne's Life of Henry V, composed about 1540. Hall died in 1547. G 2 84 Constitutional History. [chap. Delay of the design was Dot immediately prosecuted. Negotiations for peace with France continued ; the council of Constance occupied the minds of men a good deal, and the king employed himself chiefly in the foundation of his new monasteries of Sheen and Sion. Second par. But in November, when, on the failure of the nesrotiations, liament of . 1414. the parliament was called together^, bishop Beaufort opened the session with a sermon on the text ' Strive for the truth unto the death/ supplementing the exhortation with the suggestion ' while we have time let us do good unto all men/ It was clearly the king's duty to strive for the truth ; and now the time was come. The estates saw the matter with the king s eyes, and, having recommended him to exhaust the power of nego- tiation first, granted two tenths and fifteenths for the defence of the realm ^ : the clergy had already granted their two tenths^. Measures of Henry saw that the initiation of a great national effort should at home. be marked by a great act of reconciliation. Measures were taken for the restoration of the heir of Hotspur, now a prisoner in Scotland, to the earldom of Northumberland^; the young earl of March was received into the king's closest confidence ; the heir of the house of Holland was encouraged to hope for restoration to the family honours ^. Military preparations and diplomatic Warre- negotiations were pressed on all sides. A great national council determined that war should begin. In April 14 15 Henry laid formal claim to the crown of France^; on the i6th the chan- cellor announced to the council his resolve to proclaim war'^; * Nov. 19, Eot. Pari. iv. 34. A great council was held Sept. 22; in which probably the advice to go to war was given. Chron. Lond. p. 98. 2 Ordinances, ii. 150; Dep. Keeper's Eep. ii. App. ii. p. 185 ; Rot. Pari, iv. 35- . ^ The convocation of Canterbury was opened Oct. i ; Wilkins, Cone. iii. 358 : it broke up Oct. 20, after granting two tenths; Wake, p. 351. * Wals. ii. 300 ; Hardyng, pp. 372, 373. Henry Percy was restored to the earldom Nov. 11, 1414. See Rot. Pari. iv. 35 ; Rymer, ix. 242, 244, 324; Ordinances, ii. 160 sq. 188. He was exchanged and liberated early in 1416. 5 John Holland was restored to the lands of the earldom of Huntingdon in 1416; Rot. Pari. iv. 100, He came of age March 29, 141 7, or would have been restored earlier. He is called earl of Huntingdon in April 1415 ; Rymer, ix. 223; and was made admiral of England in 1416; Ordinances, ii. 155, 198, 199; Rymer, ix. 344. ^ Rymer, ix. 222. lb. ; Ordinances, ii. 155. XVIII.] Conspiracy of Cambridge. 85 the duke of Bedford was to act as lieutenant of the kingdom in Henry's pre- parations. his absence ; in June he went down to the coast to watch the equipment of the fleet; on the 24th of July he made his will; on the loth of August he embarked \ But before this he had to deal with a signal, short, but most dangerous and ominous crisis. The young earl of March, the legitimate heir of Edward III, had, by his reception into the king's good graces, become again a public man. The earl of Cambridge, a weak The South-^ and ungrateful man, was the godson of Richard II and brother- in-law of the earl of March : he, together with Henry lord le Scrope of Masham and Sir Thomas Grey of Heton 2, concocted a design of carrying ofi" the earl of March to Wales as soon as Henry sailed, and there proclaiming him heir of Richard II. Henry, it was said, on the information of the young earl himself^, was made acquainted with the plot ; the traitors were arrested, a commission of special justices was appointed to try them, and the verdict of a local jury presented against them. Cambridge and Grey confessed themselves guilty. Grey suffered on the 2nd of August. Scrope denied his guilt and demanded trial by his peers. A court was formed under Clarence, which passed sentence of Execution of death on Scrope and Cambridge ; they were executed on the 5th spirators. ofAugust*. This was the only blood shed by Henry V to save the rights of the line of Lancaster ; and for the time his prompt and stern action had its effect. His anger went no further; March was not disgraced, the duke of York retained his confidence, the heir ^ On all the details of the expedition see Sir Harris Nicolas's History of the Battle of Agincourt and the notes to Mr. Williams's editioa of the Gesta Henrici V. There is a statement of the revenue, June 24, I415 — June 24, 1416, in the Ordinances, ii. 172. It amounts, exclusive of the tenths and fifteenths, to £56,966 13s. /^d. ^ * Fran cor um munere corrupt!'; Otterb. p. 276; cf. Wals. ii. 305, 306. 'Prece conducti Gallorum'; Capgr. HI. Henr, p. 114; Elmham (ed. Cole), p. 105. ' Wavrin, p. 178. The earl received a general pardon Aug. 7 ; Eymer, ix. 303. * Wals. ii. 305, 306; Gesta Henrici, p. 11; Rot. Pari. iv. 64 sq ; Rymer, Lx. 300. The confession of the earl of Cambridge exonerates Scrope but implicates the earl of March, or rather his confessors who had refused to absolve him xmless he claimed his right, and proves the guilt of Grey. Rymer, ix. 301; Nicolas, Battle of Agincourt, App. pp. 19, 20; Ellis, Original Letters, 2nd Series, i. 45. 85 Constitutional Kistory. [chap. of the unhappy Cambridge was brought up in his household. y,^<^i*[^"of But the evil tradition of bloodshed was continued, and the bloodshed. ... heir of Cambridge and Mortimer was nourished for the time of vengeance which forty years later was to destroy the dynasty. Henry's first The wars of Henry Y do not enter much into our general French war. ... view of the internal history of England, except as a cause for results which are scarcely to be traced during his life. The expedition sailed on the nth of August: Harfleur was taken on the 22 nd of September; the battle of Agincourt was won on the 25th of October; on the 23rd of November the king ParHament entered London in triumph. The parliament which met on the after Agin- court. 4th of November^ under Bedford signalised its gratitude by granting the custom on wool, tunnage and poundage for life, by anticipating the payment of the money grant of 1414, and a gift of another tenth and fifteenth ^. The proceedings against Cambridge, Scrope and Grey were recorded, confirmed, and completed, by a decree of forfeiture ^. Henry's stay 650. From Nov. 1 7, i4i.t^, to July 2% 141 7, H«iry devoted in England. . / j t j oj t n j himself to the task of preparing the means of continuing the war. He remained, except for a few days, in England build- ing ships, training men, reconciling enmities at home, and strengthening alliances abroad. The victory at Agincourt had made him, as it were in an instant, the arbiter of European Sigismund P^^^*^*^^* Sigismund of Luxemburg, king of the Komans, a man whose better qualities placed him in general sympathy with Henry ^, arrived at Dover in April 14 16, purposing to close the schif m in the church and to make peace between England and France j on the 15th of August he departed, after a vain ^ Eot. Pari. iv. 62. 2 lb. iv. 63, 71 ; Dep. Keeper's Rep. ii. App. ii. p. 186. The clergy of Canterbury granted two tenths in a convocation held Nov. i8-Dec. 3 ; ib. ; Wake, p. 352. 3 Nov. 4-12 ; Rot. Pari. iv. 64 sq. * He went to Calais Sept. 4. 141 6, completed his negotiations with Burgundy Oct. 8, and returned Oct. 16. See Rymer, ix. 385 ; Gesta Henr. pp. 94, 95, 100-104; Lenz, Konig Sigismund, &c., pp. 123 sq. ^ Wals. ii. 316; Gesta Henrici, pp. 76 sq. ; Ordinances, ii. 193. The history of the transactions between Sigismund and Henry, with their various results, is worked out by Dr. Max Lenz, in bis ' Konig Sigismund und Heinrich V (Berlin 1874). XVIII.] The Conquest of France. 87 attempt to procure a truce for three years, having concluded an League^ with offensive and defensive alliance with Henry against France. In nental powers. October the king, during a short visit to Calais, made a league with the duke of Burgundy, whom he had convinced of his right to the crown of France. With the minor powers of the continent, the Hanse towns, Cologne, Holland, and Bavaria, with the northern courts and Spain, negotiations for alliance were set on foot with general success. The relations with France were of course hostile in fact, although truces and armistices were concluded so as to make any general attack or defence unnecessary, whilst both powers were preparing for a decisive struggle. At home the reconciliation of Percy was Peace at accomplished ; the earl of March was attached still more closely to the king ; the heir of the Hollands was restored to his father's earldom ; envoys were accredited for negotiating the release of James of Scotland, and powers were bestowed on Gilbert Talbot to receive the remains of Owen Glendower's party to pardon \ Henry's success in obtaining money, men, and ships, seems after the story of the late reign little less than miraculous. The ex- pedition of 14 1 5 had involved the raising of 11,000 men and 1300 vessels large and small; the money required had been raised largely by loans secured on the grants of the parliament. The expedition of 141 7 was to be on a much larger scale; an Expedition army of 25,000 men and a fleet of 1,500 vessels, of which a° much greater proportion were to be vessels of war, worthy of an English navy ^. Two parliaments sat during the season of pre- paration. In March 1416 the commons accelerated the grant Supplies of a tenth and a fifteenth due at Martinmas ^ ; in October they ^ Rymer, ix. 283, 330, 417 ; Ordinances, ii. 221 ; Gesta Henr. p. 81. ^ Sir Harris Nicolas estimates the total number of Henry's army in 1415, when it started, at 30,000 ; Battle of Agincourt, p. 48. 11,500 men-at- arms each with his servant, and the persons of higher rank with two or three servants, might make up this number. A Muster Eoll of 1417 is printed in Williams' notes to the Gesta Henrici V, pp. 265 sq. ; this contains 8000 men-at-arms and archers ; but forms only one third of the entire list. The Gesta (p. 109) give 16,400 as the number of men-at- arms ; the total calculated on the basis given above, must thus have reached nearly 50,000. ^ Mar. i6-Apr. 8; Rot. Pari. iv. 71 ; Gesta Henrici, pp. 69, 73. 88 Constitutional History. [chap. granted two similar aids, payable in the February and November following; and empowered the king to raise a loan on the Bishop security thus created ^ The bishop of Winchester lent the king Beaufort's ^ . ^ . o loans. 21,000 marks on the security of the customs; the city of London lent 10,000 on the crown jewels. The clergy of the two provinces granted their tenths in proportion to the liberality Ships built, of the commons. To the building of ships Henry devoted him-^ self with special ardour ; although a great part of the naval service was still conducted by pressed ships, the royal navy was so much increased as to be henceforth a real national armament. In February 141 7 the king possessed six great ships, eight barges, and ten balingers^; the ships were built under his personal superintendence at Southampton and in the Thames. Following the example of Richard I he issued ordinances for the fleets and armies, which may, far more safely than earlier fragments of legislation, be regarded as the basis of the English law of the admiralty, and as no unimportant contribution to international jurisprudence^. Surgeons were appointed for the fleet and army*^ The minutest details of victualling went on under the king's Cessation of eye. The parliaments forgot to grumble, the earls felt them- domestic , . . dangers. selves too weak or too safe to make it wise to quarrel ; the duke of York, whose name, rightly or wrongly, had been mixed up with every conspiracy of the last reign, had fallen at Agincourt ; Thomas Beaufort was made duke of Exeter in the parliament of October, 14 16. Even Lollardy was on the wane. No un- toward omen like the plot at Southampton threw a shadow over the second epoch of the war. Coincidently with the king's departure bishop Beaufort resigned the great seal ^, and set out Bedford hy way of Constance to Palestine. The duke of Bedford stayed lieutenant of ^ the realm. ^ Dep. Keeper's Eep. ii. App. ii. p. 187 ; Rot. Pari. iv. 95, The parliament sat Oct. 19 to Nov. 20; Gesta Henr. p. 105, 107. The convocation of Canterbury granted two tenths, York one ; Wake, p. 352 ; Wilkins, Cone, iii. 377, 380. The commissions for loans were issued July 23, 141 7; Rymer^ ix. 499. The commission for Hertfordshire reported that they could get no money, Oct. 6 ; ib. p. 500. ^- Nicolas, Agincourt, App. p. 21 ; Ellis, Original Letters, 3rd Seriesy i. 72 ; 2nd Series, i. 68 : cf. Ordinances, ii. 202. 3 Nicolas, Agincourt, App. p. 31. * Rymer, ix. 363. ^ Ib. ix. 472. XVIII.] The Conquest of France. 89 at home as the king's lieutenant, with bishop Longley as chan- cellor. The successes of the king in his second expedition, Henry's although less startling than those of 14 15, were amply sufficient France?* ° to keep up the national ardour ; the earl of Huntingdon was victorious at sea, Henry himself secured Normandy by a series of tedious sieges in 14 17 and 14 18, gaining however even more from the miserable discord of his adversaries. Early in 141 9 E,ouen was taken, and in July Pontoise surrendered, opening the way to Paris. In August the murder of John of Burgundy by the dauphin threw the weight of that important but vacil- lating power decisively on the side of Henry ; duke Philip determined to avenge his father and to make common cause with England. The crime of the dauphin placed France at Henry's feet. The unhappy king was brought to terms, and in May 1420, by the peace of Troyes, he accepted Henry as his son-in- Peace of law, regent and heir of France. On the 24th of June the peace was proclaimed in London, and on the ist of February, 142 1, the king returned to England ^. In the meanwhile Bedford was learning how to rule a free Bedford's people ; a lesson which, if he had been allowed to practise it in after years, might have even now saved the house of Lancaster from utter destruction. He presided in the parliament of 14 17, Parliament, which granted two fifteenths and tenths^, and sealed the fate of° Oldcastle, who was executed on the 14th of December ^ With the funds so provided the government was carried on without a parliament until October, 14 19*, when another fifteenth and ^ Kymer, ix. 895 sq. The king reported the conchision of the treaty to the regent, May 22; ib. p. 906 ; it was approved by the three estates of France Dec. 6; ib. vol. x. p. 33 ; and by those of England May 2, 1421 ; ib. p. 110. ^ The parliament met November 16; Koger Flower was speaker; the grant was made Dec. 17; Dep. Keeper's Rep, ii. App. ii. p. 187; Rot. Pari. iv. 107, The convocation of Canterbury (Nov. 26-Dec. 20) granted two tenths, that of York one (Jan. 20. 1418) ; Wilkins, Cone. iii. 381, 389. A loan by bishop Beaufort of 21,000 marks, made July 18, 1417, was now secured by act of parliament ; Rot. Pari, i v, 1 1 1 . ^ Wals. ii. 327, 328 ; Rot. Pari. iv. 107. * The parliament of 141 9 rnet Oct. 16 ; Roger Flower was again speaker ; the grant was made Nov. 13 ; Dep. Keeper's Rep. App. ii. p. 188 ; Rot. Paxl. iv. 117. On Oct. 30, 1419, the convocation granted a half tenth and a noble from stipendiary priests ; Wake, p. 354 ; Wilkins, Cone. iii. 396. 90 Constitutional History, [chap. Parliaments of 1419 and 1420, Gloucester lieutenant. Return of the king. Treaty of Troyes con Armed. tenth, with a supplementary grant of a third of the same sum, was voted and authority given for a new loan secured on the grant of this third and the tenth of the clergy ^. The queen dowager was accused in this session of an attempt to destroy the king by sorcery, and was deprived of the power of conspiring in other ways by being relieved from the task of administering her income ^ The parliament of December, 1420, in which the duke of Gloucester^ represented the king, was held in daily expectation of his return ^; Gloucester did not ask for money. Matters were not looking so prosperous as they had been ; money was scarce ; the peace was badly kept in the north. True, the Lollards, as the chancellor said, were decreasing, but it was time that the king came home ^. Petitions were not to be engrossed until they had been sent over sea for the royal assent^; the statute of Edward III, which secured that English liberties should not be diminished by the king's assumption of a new title was re-enacted"^. A pressing invitation was sent for the king and his bride to visit England ^. Henry was glad enough to return. He landed in February and, after having the queen crowned and making a grand progress through the country, on the 2nd of May opened parliament in person^. A new expedition was already necessary; the duke of Clarence had fallen in battle against the dauphin in March. The joy felt at the king's return seems to have prevented the asking of any inconvenient questions ; the treaty of Troyes was laid before the three estates and solemnly confirmed. No gloom was thrown over the session by a dispute about money. So ^ Rot. Pari. iv. 117. Commissions for collecting the loan were issued Nov. 26; E-ymer, ix. 815. ^ Wals. ii. 331 ; Rot. Pari. iv. 118. She was arrested and sent to Leeds castle ; Leland, Coll. ii. 489. ^ Gloucester was made lieutenant Dec. 30, 1419, when Bedford joined the king in Normand}^ ; Rymer, ix. 830. * The parliament opened Dec. 2 ; Roger Hunt was speaker ; Rot. Pari, iv. 123. ^ Rot. Pari. iv. 123. ^ lb. iv. 127. ^ lb. iv. 128. ^ lb. iv. 125. ® The parliament of 143 1 opened May 2 ; Thomas Chaucer was speaker; Rot. Pari. iv. 129. On the 6th a statement of the revenue was made : it amounted to £55,743; the charges on which reached the sum of £53,235 ; leaving only £3,507 for extraordinary expenditure; Ordinances, ii, 312; Rymer, x. 113. The convocations granted a tenth ; Wake, p. 358. XVIII.] Bisho]) Beauforfs Loans. 91 great indeed was the confidence of the nation in its leader that Security for . . . . p the king's the parliament empowered the council to give security for the debts, payment of all debts contracted by the king for the present expedition ^ ; and a proof of private confidence even more signal than any which the parliament could give was seen in the con- duct of bishop Beaufort, who, although he had as yet recovered loans ^ ^ ' ^ *' .by Beaufort, only a third of his former loan, was ready to lend the king .£14,000 more^. In these monetary transactions the bishop prob- ably acted as a contractor on a large scale, and deserved the thanks of the country far more than the odium which has been heaped upon him as a money-lender. It can scarcely be sup- posed that the very large sums which he lent were his own, for although he held a rich see he had not inherited any great estate, and he kept up a very splendid household. It was probably his credit, which was unimpeachable, more than any enormous per- sonal wealth, that enabled him to pour ready money, when ready money was very scarce, into the king's coffers. In this session the Bohun inheritance was divided between the king and the countess of Stafford, his cousin, as coheirs of the earldoms of Essex, Hereford, and Northampton ^. 651. Thus provided with money, Henry on the loth of June Henry's last left England, never to return. He spent the rest of his life in Junei42i.* attempts to secure the remaining strongholds of the unhappy country which he desired to reform and govern. The need of Supplies granted. further supplies brought together the parliament in December * under the duke of Bedford. A fifteenth and tenth was granted, but little else was done^; the scarcity of money was already alarming, and received some slight attention in the way of ^ Kot. Pari. iv. 130. The king had issued commission for raising a loan, at York, April 7 ; Eymer, x. 96 ; and at Westminster April 21 ; ib. p. 97. ^ Rot. Pari. iv. 132 ; Ordinances, ii. 298. ^ Eot. Pari. iv. 135. * This parliament met December 1 ; Richard Banyard was speaker ; the grant was made apparently on the day of the meeting ; the speaker how- ever was elected on the 3rd ; Rot. Pari. iv. 151 ; Wals. ii. 332. 5 Dep. Keeper's Rep. ii. App. ii. p. 189 ; Rot. Pari. iv. 151. The clergy granted two half tenths. The Ordinances (ii. 312) contain a statement of the revenue of 1421, amounting to £55,743, charged with regular burdens amounting to £52,235, and thus leaving £3,507 to provide for the house- hold and extraordinary expenditure. Constitutional History. [chap. Death of Henry V. His last arrange- ments and wishes. Record of his death. legislation. On the 6th of December the unhappy Henry of Wind- sor was born. In May the queen joined her husband, and on the 31st of August he died. His last wishes were that Bedford should be the guardian of both realm and heir, and that the earl of Warwick should be the boy's preceptor. A strong command was laid on his brothers not to make peace with the dauphin and never to quarrel with Burgundy or to allow the duke of Orleans to go free. In a sad foreboding he warned his youngest brother not to be selfish or to prefer his own personal interests to those of the country which he would have in part to govern. The duke of Exeter was also charged with the care of the king- dom of England \ With his last breath Henry professed himself a crusader 2. His death is recorded in the book of the acts of his son's council thus : ' Departed this life the most Christian champion of the church, the beam of prudence and example of righteousness, the invincible king, the flower and glory of all knighthood*, Henry, the fifth since the Conquest, king of England, heir and regent of the realm of France, and lord of Ireland, at the castle of Bois de Vincennes near Paris on the last day of August in the year of our Lord 1422 and of his ' See Wavrin, p. 423; Monstrelet, liv. i. c. 264. According to the account in the Gesta, p. 159, Bedford was to rule France, Gloucester England ; and Exeter, Warwick, and bishop Beaufort, to be governors of the young prince. Elmham joins Sir Walter Hungerford and Sir Henry Fitz Hugh to the duke of Exeter (ed. Hearne, p. 333). Hardyng like- wise says that the duke of Exeter was to be guardian to the young Henry — 'Thomas Beauforde his uncle dere and trewe Duke of Excester, full of all worthyhode, To tyme his soone to perfect age grewe, He to kepe hym, chaungyng for no newe, With helpe of his other erne then full wise The bishop of Winchester of good advise.' — p. 387. He adds that it was on tlie duke of Exeter's death that the earl of Warwick became tutor ; p. 394. See also Hall, Chr. p. 115; Tit. Liv. For. p. 95. ^ His last words were ' Good Lord thou knowest that my mind was to re-edify the walls of Jerusalem'; Leland, Coll. ii. 489; cf. Wavrin, p. 424 ; Hardjmg, p. 388. The report of Gilbert de Lannoy on the ports of Egypt and Syria, ordered by Henry V in contemplation of his expedition to the East is in the Archaeologia, xxi. 312-348. ^ ' The good and nobylle Kyng Harry the V aftyr the Conqueste of Inglonde, floure of chevalrye of crysten men ' ; Gregory, p. 148 : cf. Chron. London, p. 110. XVIII.] Position of Renry V. 93 reign the tenth : whom succeeded his illustrious son Henry VI, on the ist day of September, in the first year of his age and reign.' The unhappy Henr}'- of Windsor was destined to lose all and more than all Henry of Monmouth had won. Henry Y was by far the ereatest kinor in Christendom, and he Great pos- .... sibilitiesof deserved the estimation in which he was held, both for the Henry's career. grandeur and sincerity of his character and for the greatness of the position which, not without many favouring circumstances on which he could not have counted, he had won. It was very much owing to his influence that the great schism was closed at Constance; it was the representative of the English church who nominated pope Martin Y ^, the creator of the modern papacy : and although the result was one which ran counter to the immemorial policy of kings and parliaments, af Church and State, the mischief of the consequences cannot be held 'to derogate from the greatness of the achievement. It is not too much to suppose that Henry, striking when the oppor- tunity came and continuing the task which he had undertaken without interruption, might have accomplished the subjugation and pacification of France, and realised the ambition of his life, the dream of his father and of his Lancastrian ancestors, by stay- ing the progress of the Ottomans and recovering the sepulchre of Christ. This was not to be \ and he had already done more than on ordinary calculations could have been imagined, compassed more than it was in England's power alone to hold fast or to complete. England was nearly exhausted ; it could only have been at the head of consolidated France and united Europe that he could have led the Crusade. In him then the dying energies of medieval life kindle for a short moment into flame ; England rejoices in the light all the more because of the gloom that precedes and follows : and the efforts made by England, par- liament, church, and nation, during the period, are not less remarkable than those made by the king. They prove that the system of government was capable of keeping pace with the great ' The bishop of London nominated him ; Wals. ii. 320. See Lenz, Koni^ Sigismund, p. 184. Whoever -was the nominator the election was the result of the league between Henry and Sigismund. 94 Constitutional History, [chap. John duke of Bedford and Hnm- fi'ey duke of Gloucester. Contrast between the two brothers. Their rela- tions with the Beau- forts. mind that inspired it, although the mass of the nation was, as it soon proved to be, not sufficiently advanced to maintain the system when the guiding hand was taken away. 652. The two men into whose hands the administration of Henry's dominions now fell were in singular contrast with one another. The two brothers were but a year apart in age, John was thirty -three, Humfrey thirty-two. There was perhaps as little personal jealousy between them as could exist between two brothers so situated. Bedford was never jealous of Gloucester ; Gloucester, if during his brother's absence he acted with little regard to his wishes, and aimed at power for himself irrespective of the national interest, was always amenable to Bedford's ad- vice when he was present, and never ventured to withstand him to his face. In character however, and in the great aim and object of life, there was scarcely anything in common between them. They seem, as it were, to have developed the different sides of their father's idiosyncrasy, or to have run back to a previous generation. Humfrey has all the adventurous spirit, the popular manners, the self-seeking and ambition that marked Henry IV ; he is still more like the great-uncle whose title he bore, and to whose fate his own death was so closely parallel, Thomas of Woodstock. John has all the seriousness, the statesmanship, the steady purpose, the high sense of public duty, that in a lower degree belonged to his father. He, although with a far higher type of character, in some points resembled the^ Black Prince. Bedford again has all the great qualities of Henry V without his brilliance ; Gloucester has all his popular characteristics without any of his greatness. The former was thoroughly trusted by Henry V, the latter was trusted only so far as it was necessary. The Beauforts were no doubt intended by Henry to keep the balance steady. He knew that while to the actual wielders of sovereign power their personal interests are apt to be the first consideration, to a house in the position of the Beauforts the first object is the preservation of the dynasty. He had confided in them and had found them faithful ; Bedford trusted them and also found them faithful. Gloucester, as Clarence Had been, was opposed to them, and the jealousy XTI.II.] Bedford and Gloucester. 95 which he missed no opportunity of showing was one cause of Mischievous . ^ ^ ^ , . character of the destruction of his house. Gloucester was the evil genius Gloucester, of his family; his selfish ambition abroad broke up the Bur- gundian alliance, his selfiish ambition at home broke up the unity of the Lancastrian j)ower ; he lived long enough to ruin his nephew, not long enough to show whether he had the will or the power to save him. Yet the reaction provoked by his com- petitors for power invested him with some popularity whilst he lived, and won for him the posthumous reputation of being the pillar of the state and the friend of the commons^. Clever, popular, amiable, and cultivated ^, he was without strong prin- ciple, and, what was more fatal than the want of principle, was devoid of that insight into the real position of his house and nation which Henry IV, Henry V, and Bedford undoubtedly had ; he would not or could not see that the house of Lancaster was on its trial, and that England had risked her all on that issue. The uncertainty that still rests on the exact form in which Question Tx ' > 1 • 1 1 1 about the Henry s last wishes were expressed compels us to content our- late king's selves with supposing that they were duly carried into execution, and that he intended Bedford to govern France, Gloucester to act as his vicegerent in England. But the arrangement was not adopted at home without misgivings. The lords, the council, the parliament, all had something to say before the fiinal ^ According to Hall he had abroad the reputation of being 'the very father of his country and the shield and defence of the poor commonalty ' ; Chron. p. 212. Hall however knew better. ^ Capgrave (111. Henr. p. 109) calls him ' inter omnes niundi proceres litteratissimus.' He took special pains to stand well with learned men, whereby his reputation has no doubt largely benefited. Duke Humfrey's benefactions to the Oxford Library are detailed in Muniraenta Academics, i. 326; ii. 758-772. See also Macray, Annals of the Bodleian, pp. 6-12. Among the scholars promoted by him the best known are bishops Beckington and Pecock, and Titus Livius Forojuliensis. Peter de Monte dedicated to him a work 'De Virtutibus et Vitiis' ; Beckington, i. 34. Aeneas Sylvius (p. 64) speaks of him as ' clarissimo et doctissimo, qui . . poetas mirifice colit et ora tores magnopere veneratur.' ' Iste dvix Humfredus inter omnes mundi principes excellebat in scientia et speciositatis ac formae decentia ; tamen vecors cordis et effaeminatus vir ac voluptati deditus ' ; Chr. Giles, p. 7 ; of. Tit. Liv. For. p. 2. His constitution was weakened by his excesses as early as 1424. See the advice of his physician Gilbert Kymer in Hearne, Lib. Nig. Scaccarii, vol. ii. pp. 552 sg. 96 Constitutional History. [chap. Mutual jealousies. The council undertakes the work of government Attitude of duke Humfrey. Parliament of 1423. adjustment was made, and Gloucester himself was never satisfied with tbe position allotted him. The lords were jealous of their own rights ; the influence of Bedford and the Beauforts, and the constitutional power already wielded by the council, were suf- ficient to limit the power of the protector in that body ; and the parliament contained men who were watchful of any attempt to diminish the liberties or control the powers to which the last two kings had allowed free exercise. 653. Gloucester, who was in England at the time of Henry's death, at once took the place which belonged to him, and on the 28th of September in the name of his nephew received the great seal from Bishop Longley ^. But the council acted as adminis- trators of the executive power, and with this he did not venture to interfere. It was by the advice of the council that he was on the 6th of November appointed to open the ensuing parliament ^ The words of the commission were sufficient to tell him that he would have no unrestricted power ; he was authorised to begin, carry on, and dissolve the parliament, by the assent of the coun- cil. Gloucester objected to the last words^; and the lords replied that considering the tender age of the king, they neither could, ought, or would consent to the omission of the words, which were as necessary for the security of the duke as they were for that of the council. Thus pressed he gave a reluctant consent, and on the 9 th of November opened the parliament simply as the king's uncle acting by virtue of that commission ^. Arch- bishop Chichele announced the causes of summons,^ — the good governance of the king's person, the maintenance of peace and law, and the defence of the realm ; for all which purposes it was ^ Rymer, x. 253 ; Rot, Pari. iv. 170. ^ Ordinances, iii. 6, 7 ; Rot. Pari, iv, 169. ^ ' Ad parliamentum illud finiendum et dissolvendum de assensu consilii Bostri plenam commisimus potestatem ' ; Ord. iii. 7. It certainly seenis probable that 'de assensu consilii nostri' should be read with the words that follow rather than with the preceding words, that Gloucester mis- construed the sentence, and that the council took advantage of his miscon- struction to force that interpretation upon him. The words do not occur in the commission given by Edward III to Lionel in 1351 ; Rot. Pari, ii. 225 : or to Richard in 1377 ; ib. p, 360. * Rot. Pari. iv. 169; Rymer, x. 257 ; Wals. ii. 345. Roger Flower was speaker. The session closed Dec. 18. XVIII.] The Protectorate. 97 necessary to have provision of honourable and discreet person- Question of r6*''8ncv coil" ages of each estate of the realm. Before determining the form sidered in of regency, the parliament examined the list of the ministers ; the commons asked to know their names, and on the 1 6th letters patent were produced in which the king by advice of his council in the present parliament re-nominated his father's chancellor and treasurer ^. It was not until the twenty-seventh day of the session that Gloucester's position was definitely settled. He claimed the regency as next of kin to the young king and under the will of Henry y 2; the lords, 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 ; they disliked too the names of regent, tutor, governor, and lieutenant ^ He had to submit, and on the 5th of December the king *, by assent and advice of the lords spiritual and temporal and by assent of the commons, constituted the duke of Bedford protector and defender of the realm and of the church of England and principal coun- sellor to the king, whenever and as soon as he should be present in England, the duke of Gloucester in that event being the chief counsellor after him; he further ordained that the duke of Gloucester Gloucester should occupy the same position so long as Bedford was ™ctor m^the absent, should be the protector and defender of the kingdom and Bedford, church, and chief counsellor to the king. These letters were, con- firmed by an act of parliament ; and Gloucester at once accepted the responsibility. By a further act the protector was era- powered to exercise the royal patronage in the administration of the forests, and the gift of smaller ecclesiastical benefices ; the greater prizes being reserved for him to bestow only by advice of the council °. The members of the council were then * Rot. Pari. iv. 171, 172. lb. iv. 326. ^ According to HardjTig, Beaufort led the opposition, p. 391, 'for cause he was so noyous with to dele '; ' the bishop of Winchester by perlyament was chaunceller and hiest governour of the kynghis persone and his greate socour ; his godfather and his father's erne, and supportour was moost of all this realme'; p. 392. * Rot. Pari. iv. 174, 175 ; Rymer, x. 261 ; Wals. ii. 346. ^ Rot. Pari. iv. 175 ; Ordinances, iii. 14. VOL. III. H Constitutional Hidory. [chap. TJip^names named ; Gloucester as chief ; five prelates, the primate, the council. bishops of London, Winchester, Norwich, and Worcester ; the duke of Exeter ; the earls of March, AYarwick, Marshall, North- umberland, and Westmoreland ; the lords Fitz Hugh, Cromwell, Powers of^ Hungerford, Tiptoft, and Beauchamp^. This body, in which every interest was represented and every honoured name ap- pears, accepted office under five conditions, which still further limited the powers of the protector ; they were to appoint all officers of justice and revenue ; they were to have the disposal of the wardships, marriages, ferms, and other incidental profits of the crown; nothing at all was to be done without a quorum of six or four at least, nothing great without the presence of the majority ; whilst for business on which it was usual to ask the king's opinion the advice of the protector was required : the fourth article secured secrecy as to the contents of the treasury, and the fifth provided that a list of attendances should be kept. The com- mons added an article to prevent the coimcil from encroaching Supplies on the patronage belonging to existing officers of state ^. On gidnted. of December the grant of the subsidy on wool and of tunnage and poundage was made^. It was agreed that all Lollards imprisoned in London should be handed over to the ordinaries to be tried * : no important legislation was attempted, and neither parliament nor convocation was troubled by any- thing like direct taxation. The arrangements for the regency were completed by the council in the following February ; the' protector was to receive an annual salary of 8000 marks ^ Gloucester's 654. From the very first months of the new reign appeared intrigues, symptoms of divided counsels. Bedford was hard at work on the fabric of alliances which Henry had founded ; Gloucester was intriguing and aspiring to make a principality for himself. In April, 1423, Bedford at Amiens^ concluded an offensive and defensive alliance with the dukes of Burgundy and Brittany, cementing the league by a double marriage, and himself espous- ^ Eot. Pari. iv. 175; Ordinance:', jji. 16. 2 Eot. Pari. iv. 176. ^ j^. iv. 173. * lb. iv. 174. ^ Ordinances, iii. 26, 27 ; Rymer, x. 268. April 17 ; Bymer, x. 280, 281. XVIII.] Gloucester's Marriage. 99 injj a sister of duke Philip. In March ^ Gloucester had cele- He marries ' ° , , , , , Jacquelhie " brated his marriaf^e with Jacqueline of Hainault, the half of Hainauit, _^ andalienates divorced wife of the duke of Brabant, and an heiress whose Bm-sviudy. claims were irreconcileable with the interests of the house of Burgundy. All that was to have been gained by the one mar- riage was thrown to the winds by the other; the strongest injunction of Henry V was disregarded by Humfrey, and the alienation of the Duke of Burgundy began at the moment when his friendship might have been secured for ever. "With the same insolent impolicy Gloucester undertook to recover in arms the estates to which Jacqueline was entitled. The year 1423 saw Burgundy delivered from the French by the aid of an English force at Crevant; and in August, 1424, Charles VII >vas reduced to the lowest point of degradation by the great victory won by Bedford at A^erneuil. In October, 1424, Glouces- He invades . . . 3 t t> Hainault. ter invaded Hainault, drawing off the duke of Burgundy from France and putting an end to the cordiality of the national alliance In this attempt he failed even to show the military skill and perseverance that became an English prince : he chal- lenged the duke of Burgundy to single combat; he assumed the title of count of Hainault and Zealand ; he persisted in spite of the reproaches of Bedford, who was obliged to purchase the continuance of the alliance at great sacrifices of territoiy in France. Then he returned to England and left his young wife His return beliind him. When he was once in England Bedford did his best ^""^ '"^ ' to keep him there, but he soon began to do worse harm still. The government of England whilst Gloucester was thus em- Parliament ployed had rested in the hands of the council. A parliament ^'^ ^" which sat from October, 1423, to February, 1424^, continued the grants of the year 1422^; the members of the council were most of them continued in office, and additional rules framed for ^ Stevenson, Wars in France, i. p. lii. ^ Chron. Angl. ed. Giles, p. 7; Monstrelet, liv. ii. c. 22. " Rot. Pari. iv. 197. It opened Oct. 20; John Eussell was speaker. The little king was brought into parliament on Nov. 18. The chronicler tells how 'he schriked and cryed and sprang' before he would leave his lodging at Staines; Chron. Lond. p. 112. * The grants were made Feb. 28, the last day of the session ; Rot. Pari, iv. 200. H 2 lOO Constitutional History. [chap. Sir John Mortimer. Bpaufoi t chancellor duniip: Gloucester'; absence. His speech at the open- ing of parlia inent in 142?, Parliament lorbids war with Bur- gundy. council business ^ Sir John Mortimer, wbo was charged with a treasonable design in favour of the earl of March, was declared guilty b}^ both lords and commons, and sentenced to death ^. Peace was made with Scotland and the long-imprisoned king released in January 1424 ^ In the following July bishop Beaufort was again made chancellor ^, either as a check put by Bedford on the vagaries of his brother or as a compromise with Gloucester himself before he started on his expedition. The government remained in his hands during the protector's absence, and he received an additional salary of X2000 for his services ^ The parliament of 1425^ was opened by the little king in person; the chancellor in his opening speech inferred the good qualities of a counsellor from the wonderful physical fact that the elejjhant has no gall, is of inflexible purpose and of great memory. The work of this session was chiefly financial': Beaufort received security for his loans ^ ; Gloucester, who had returned from his inglorious expedition, was allowed to borrow 20,000 marks on security given by the council^; the subsidies were continued for three years The three estates conde- scended further to inhibit the duke from continuing his quarrel with Burgundy, and referred it for arbitration to the queens of ^ Eot. Pari. iv. 201, 202 ; Rymer, x. 310. ^ Hall, p. 128; Eot. Pari. iv. 202 ; Amundesham, i. 6, 7. The earl of March attended this parliament with so large a retinue that the council in alarm sent him to Ireland, where he died soon after ; Chron. Giles, p. 6. ^ Eymer, x. 302-308. On the 13th of February, 1424, King James was released from the payment of 10,000 marks, out of the £40,000 due for his ransom, in consideration of his marriage with Johanna Beaufort, the bishop's niece; ib. p. 322. * July 16 : Rymer, x. 340. ® Ordinances, iii. 165. ^ Eot. Pari. iv. 261. It began April 30; Sir Thomas Wauton was speaker ; the grant was made on the last day of the session, July 14 ; ib. p. 75. The convocation granted a half tenth in July; Wilk. Cone. iii. 438. '' * In that parlyment was moche altercacyon bytwyne the lordys and the comyns for tonage and poundage. And at that parlyment was grauntyd that alle nianer of alyentys shuld be put to hoste as Englysche men benne in othyr londys, and ovyr that condyscyon was the tonage grauntyd ; the whyche condyscyon was brokyn in the same yere by the Byschoppe of Wynchester as the moste pepylle sayde, he beyng chaunseler the same tyme, and therefore there was moche hevynesse and trowbylle in thys londe'; Gregoiy, p. 157. * Rot. Pari. iv. 275, 277. ^ Ib. iv. 289. Ib. iv. 275. xviii.] Quarrel hettveen Gloucester and Beaufort. loi England and France and the duke of Bedford \ A dispute for Gloucester precedency between the earl of Warwick and the earl Marshall with was settled by the promotion of the latter to be duke of in 1425. Norfolk^. Although duke Humfrey seems to have escaped animadversion in parliament, he was severely taken to task in counciP. Beaufort, it may be safely assumed, was un- sparing in his strictures ; Gloucester seems to have retaliated by an attack on the bishop's administration during his absence : and the result was an open quarrel between uncle and nephew, which peremptorily recalled Bedford to England. 655. Duke Humfrey had come home deep in debt, as was to be expected, and the council had treated him with unwise liberality; in May they had given him the wardship of the Mortimer estates during the minority of the duke of York*, and in July had allowed him to borrow the large loan just men- tioned. But he was not satisfied. The Tower of London had been garrisoned by Beaufort ^ during the absence of the duke. Gloucester, on the 29th of October, ordered the Lord Mayor of London to prevent him from entering the city^. A riot followed Riot^in on the 30th, in which the Archbishop of Canterbury and the Duke of Coimbra had to mediate between the couflictino- parties. It Beaufort ° ^ sends for was finally resolved that Bedford should arbitrate, and on the 3 ist Bedford. the chancellor wrote to him imploring him to return if he would save the state On the 5th of November, at Guildford, the Loans by the council, acting on the order of tlie last parliament, allowed the Gloucester. protector to borrow £5000 of the king, to be repaid when Henry should reach the age of fifteen. This was charged on the tenth last granted by the clergy, although the government was at the very time being carried on by the voluntary loans of the lords of the council ^. Probably this was done in Beaufort's absence. * Rot. Pari. iv. -277. 2 jy, 262-274. ^ Ordinances, iii. 174; Monstrelet, liv. ii. c. 32. * Ordinances, iii. 169. The duke was allowed further to borrow 9000 marks of the king on July 9, 1427 ; Rymer, x, 374. ^ Beaufort's force was from Cheshire and Lancashire, Cf. Monstrelet, liv. ii. c. 36. ® Chron. London, p. 114. ^ The letter, dated Oct. 31, is given by Hall, p. 130. ^ Ordinances, iii. 179. The loan of July 1427 was assigned on the customs, the duchy of Lancaster, and the proceeds of wardships ; Rymer, X. 375; Ordinances, iii. 271. 103 Constitutional History. [chap. Bedford re- turns. Treaty of ailiaiice between the two brothers. Parliament summoned. Gloucester invited to attend council. It was time that Bedford should return ; he left France on receipt of his uncle's letter, and landed at Sandwich on the 20th of December ^. 606. The two brothers had not met since the death of Henry Y, and Gloucester was not able to resist the personal influence of Bedford. It is probably to this period that we should refer an interesting document, preserved among the letters of bishop Beckington, duke Humfrey's chancellor ^. In this treaty of alliance, as it professes to be, the duty of fraternal unity is solemnly laid down, and a contract published which is to disarm for the future the tongues of meddlers and de- tractors. Seven articles follow, by which the dukes undertake to bear true allegiance to the king ; next to the king to honour and serve each other, to abstain from aiding each other's enemies, to reveal to each other all designs that are directed against either, to refuse belief to calumnious accusations, to form no alliances without common consent or in prejudice of their common alliances. These latter articles were no doubt called for by Gloucester's treatment of the duke of Burgundy. Queen Katharine also appears to have joined in the contract. On the 7th of January was issued^ a summons for parliament to meet on the 1 8th of February at Leicester : the intervening weeks were spent in an attempt to reconcile duke Humfrey with the chancellor. On the 29tli of January, archbishop Chichele, the earl of Stafford, lords Talbot and Cromwell, and Sir John Corn- wall, w^ere sent to the duke, with elaborate instructions from Bedford and the council, which had met at St. Alban's ^ It was proposed that the council should reassemble at Northampton on the 13th of February to prepare business for the parliament ; at this council Gloucester was first invited and then urged to attend, as he valued the unity of the land and the common good of the subject; the enmity between the duke and his uncle must of necessity come before joarliament, it were well that it should be ended before the day of meeting : the duke had ^ Bedford came to London, Jan. 10 ; Gregory, p. 160. ^ Beckin^ton's Letters, ed. Williams, i. 139-145. ^ Lords' Report, iv. 863. * Ordinances, iii. 1 81-187. x^t:ii.] Bedford* s Arhitration. 103 refused to come to Noi-thamptoii if lie should there meet the Arguments chancellor ; he was implored to set that feeling aside ; there to him. would be no fear of a riot ; the bishop had undertaken to keep his men in order, and the peace would be duly kept : it was unreasonable in Gloucester, and even if he were king it would be unreasonable in him, to refuse to meet a peer; the king and coun- cil were determined that Gloucester should have his rights ; he could not insist on Beaufort's removal from office, but if anything were proved against Beaufort, he would of course be dismissed. If Gloucester refused to attend the council, he must come to the parliament, and in that assembly the king would execute justice without respect of persons. Whether the duke complied with the request does not appear ; but the matter was not settled when the parliament, which is called by the annalists the parliament The Pavlia- of bats or b-ludgeons, met. Tlie chancellor opened the proceed- Bats, ings with a speech, in which he made no reference to the quarrel; for ten days the two parties stood face to face, nothing being done in consequence of their hostile attitude. On the 28th of Feb- ruary the commons sent in an urgent prayer that the divisions among the lords should be reconciled ^, and Bedford and the Bedford and peers solemnly undertook the arbitration; on the 7th of March mediate. Gloucester and Beaufort consented to abide by that arbitration, and to make peace on the terms which should be prescribed. The charo-es of Gloucester asfainst his uncle were stated : he had shut the Tower of London against him, had purposed to seize the king's person, had plotted to destroy Gloucester when visiting the king, had attempted the murder of Henry V when prince of Wales, and had urged him to usurp his father's crown. The bishop explained his conduct as impugned in the first and third charges, and denied the truth of the rest. The arbitrators determined that Beaufort should solemnly deny the truth of the •charges of treason against Henry IV, Henry Y, and Henry VI, ^ Gregoiy, p. 160. 2 Eot. Pari. iv. 295. The speaker was Sir Richard Vernon; the grant was made June i. Cf. Amundesham, i. 9, 10; Chron. Giles, pp. 8, 9. The clergy, April 27, granted a half tenth and a farthing in the pound; ,Wilk. Cone. iii. 461, 462. 3 Rot. Pari. iv. 296; Ordinances, iii. 187. 104 Constitutional Ristory. [chap. Pacification and resigna- wliereupon Bedford should declare liim loyal : he should then ^^^^l , disavow all desifjns asrainst Gloucester, who should accept Beaufort. . the disavowal ; and they should then take each other by the hand ^. This was done and recorded on the 1 2th of March ^; on the 14th, Beaufort resigned the great seal, and the treasurer, bishop Stafford, prayed to be discharged of the treasurership. John Kemp, bishop of London, became chancellor, and Walter lord Hungerford treasurer^. On the 20th the parliament Money was prorogued, to meet again on the 29tli of April. In the second meeting, grants of tunnage, poundage, and the subsidy on wool were granted ^ extending to November, 1431 ; the council had been already empoAvered to give security for loans amounting to £40,000. On the ist of June the parliament separated. The king had during the latter days of the session received from his uncle Bedford the honour of knighthood. Beaufort Bedford stayed sixteen months in Enjxland, and Beaufort, trusts in ... tlie council, before he left, appeared from time to time at the council board ^ ; at the end of the year he lost his brother the duke of Exeter, and he probably thought that he might bide his time. He had undergone a personal discomfiture, but the council might be trusted not to allow duke Humfrey to have his own way. The chancellor Kemp too, now archbishop of York, was a reso- lute defender of constitutional right. In contemplation of his return to France, Bedford held a council in the Star Chamber Address to on the 28th of January^. The chancellor, as spokesman of Bedford by . . . ^ , archbishop the council, addressed him in a speech probably pre-arranged in order to produce some effect on Gloucester. He reminded him of the great responsibility which lay on that body during the king's minority. The king, child as he was, centered in his person all the authority that could belong to a grown-up king, ^ The articles are given by Hall, Chr. pp. 130, 131 ; and Beaufort's answers, pp. 131-134; then the arbitrament, pp. 135-138; they are not stated in the rolls of parliament. See also Arnold, Chr. pp. 287, 300. 2 Eot. Pari. iv. 297. 2 lb. iv. 299 ; Amundesham, i. 9 ; Ryraer, x. 353. * Eot. Pari. iv. 302. ^ Beaufort was a member of the council Nov. 24, and Dec. 8, 1426, and March 8 and 10, 1427; Ordinances, iii. 213, 221, 226, 255. * Ordinances, iii. 231-242. XVIII. J Gloucester s Promise. but the execution of that authority stood ' in his lords, assembled The author- . . . . . ityofthe either by authority of his parliament, or in his council, and in ^^^^"C'^ especial in the lords of his council,' who might be called to account for their administration ; * not in one singular person, but in all my lords together/ except where the parliament had given definite powers to the j)rotector ; the council there- fore asked for the duke's opinion on the present state of affairs, and the feasibility of the present system of government ^ Bedford replied that it was "his wish to act in all things under Bedford advice and governance of the council, and then, with tears in his to respect it. eyes, swore on the gospels that he would be counselled and ruled by them. On the following day the chancellor and Gioiicester council, thus fortified with a precedent, visited Gloucester, who make the was lying ill at his lodgings, and administered a formal remon- promise, strance ; it was impossible for them to carry on the government if he continued to claim the position which on several occasions he had claimed. He had said more than once that 'if he had done anything that touched the king in his sovereign estate, he would not answer for it to any person alive save only to the king when he came to his age;' he had also said, 'Let my brother govern as him list whilst he is in this land, for after his going over into France I will govern as me seemeth good.' The council hoped that he would give them the same answer that they had had from Bedford ; and in fact Gloucester, after some words of apology, repeated his brother's declaration. Bedford now prepared to re- Bedford turn to France ; on the 25th of February^ the council resolved ^^'^^^ ^^^^^* that it had been the late king's intention that he should devote himself to the maintenance of the English hold on Normandy; and the little king, now five years old, was made to understand * There are two copies of the minute, in which this statement is worded somewhat differently ; the words occur as in the text in Ord. iii. 238 ; at p. 233 the sentence stands thus: 'the execution of the king's said authority, as toward that that belongeth unto the politique rule and governaille of his land, and to the observance and keeping of his laws, belongeth unto the lords spiritual and temporal of this land at such time as they be assembled in parliament or in great council, and else, them nought being so assembled, utito the lords chosen and named to be of his continual council.' * Ordinances, iii. 247. io6 Constitutional History. [chai'. tliat his uncle must leave liim. On the 26th, the crown, which had been kept by bishop Beaufort as a pledge, was placed in the custody of the treasurer ^ ; on the 8th of March, the king, with Bedford, Beaufort, and the council, were at Canter- Departiireof bury. Immediately afterwards Bedford left. Beaufort accom- Bedford and . . Jieaufort. panied him. On the 14th of May, 1426, he had applied for leave to go on pilgrimage^. He did not return until September, 1428, having in the meanwhile been made a cardinal, legate of the apostolic see, and commander of a crusade against the Hussites ^. 657. The conduct of Grloucester, when thus relieved from the Gloucester pressure of his brother and uncle, was what might have been his designs expected. He resumed his designs against Burgundy, and Burgundy, attempted to sow discord ,in his brothers council. A very summary threat from Bedford was required before he would desist In July he obtained the consent of the council to raise men and money to garrison Jacqueline's castles and towns in Holland; no further conquests were however to be attempted without the consent of parliament ^. Parliament was Parliament Summoned for the 13th of October^, but Gloucester was not of 1427-8. alloAved to open it; the little king presided in person. Little was done in the first session, and on the 8th of December it was prorogued. In the second session, which began on the 20th of January, Gloucester began to show his hand again. On the 3rd of March he demanded of the lords a definition of his powers as ' protector and defender of the realm of England and chief counsellor of the king.' He quitted the assembly that the lords might consider the question at their ease. They returned a written answer, in which they reminded him that ^ Ordinances, iii. 250. ^ Ellis, Originals Letters, 2nd Series, i. loi ; Ordinances, iii. 195; Kymer, x. 358. ^ On Beaufort's expedition to Bohemia, where he was in the autumn of 1427, see .(Eneas Sylvius, Hist. Bohem. c. 48; opp. p. iiG; Raynald, A. D. 1427, § 5 ; Palacky, Gesch, v. Bohmen, iii. 438-467. * Monstrelet, liv. ii. c. 38, ^ Ordinances, iii. 271 ; see above p. 10 r. ^ Rot. Pari. iv. 316. John Tyrell was speaker. In this parliament a number of women presented themselves with a letter complaining of duke Humfrey's behaviour to his wife ; Amund. i. 20. XVIII.] The Protectorate Defined. 107 at the bef2finninor of the reim he had claimed the o-overnance The lords, at ^ ^ ^ c5 ^ Gloucesters of the land in right of his blood and of the late king's will ; request, de- ^ fine the that thereupon the records of the kino-dom had been searched powers of the . 1 1 • 1 protector, for precedents, and the claim refused as grounded neither on history nor on law, the late king having no power to dispose of the government of England after his death without the consent of the estates. Notwithstanding this, in order to main- tain the peace of the land, he had been declared chief of the council in his brother's absence ; but to avoid the use of the title of Tutor, Lieutenant, Governor, or Regent, the name of Protector and Defender was given him ; ' the which importeth a personal duty of intendance to the actual defence of the land,' with certain powers specified and contained in the act. If the estates had intended him to have further powers, they would have given them in that act. On those terms he had accepted the office. The parliament however knew him only as duke of Gloucester, and saw no reason why they should recognise in him more authority than had been formally given him. They therefore prayed, exhorted, and required him to be con- tent, and not desire, will, or use any larger power. By this reply they were determined to stand, and they subscribed it with their own hands, eleven bishops, four abbots, the duke of Norfolk, three earls, and eidit barons ^. The consent of the Grants of . . money in commons was not asked, but they showed their confidence in parlument. the council by making liberal grants ; they were empowered to give security for a loan of £24,000 ; tunnage and poundage was granted for a year, and a new and complicated form of subsidy was voted ^. Such a very decided rebuff would have quelled the spirit of a braver man than Gloucester ; but the council did * Rot. Pari. iv. 326, 327. ^ lb. iv. 317, 318 : the grants were made on Marcli 25, the last day of the parliament ; Amund. i. 20. The subsidy was very curious ; all parishes the churches of which were taxed above ten marks, were to pay 13.S. 41^.; below that sum 6s. 8c?.; parishes containing ten inhabited houses, with the parish church assessed up to 20s, paid 2s. ; every knight's fee paid 6s. 8rf. The tax was to be paid by the parishioners; Amund. i. 21 ; Rot. Pari. iv. 318; Dep. Keeper's Rep. iii. 9. The clergy in convocation also granted a half tenth and a graduated tax on stipendiaries; ib. p. 11. See below, p. 109. io8 Constitutional Rutory. [chap. ■Warwick not stop there. Henry V had directed that the earl of "Warwick sets 3s tutor _ to the king, should be the preceptor of his son. On the ist of Jun© War- wick was summoned by the chancellor to perform his office ; special instructions are given him ^ ; he is to do his devoir and diligence to exhort, stir, and learn the king to love, worship, and dread God, and generally nourish him and draw him to virtue by lessons of history< he is further to teach him ' nurture, literature, language, and other manner of cunning as his age shall suffer him to comprehend such as it fitteth so great a prince to be learned of.' He shall have power to chastise him if he does amiss, to dismiss improper servants, and to remove the king's person in case of any unforeseen danger. Warwick, who lived to attend on Henry until he was eighteen, discharged his duties faithfully, and made his pupil a good scholar and an accomplished gentleman. He could not make him a strong or a happy man. Beaufort's Beaufort had made the Q-reat mistake of his life in 1426, in error in ac- , , ceptingthe accepting the cardinalate ^. He may well be excused for cardinal's . i i • p i • i i • • hat. grasping at what was the natural object of clerical ambition in his time, an object which ten years before he had foregone at the urgent entreaty of Henry V, and which now seemed all the more desireable when he saw himself ousted for a time from his commanding position in the English council. But it was not the less a blunder ; it involved him immediately in the great quarrel which was going on at the time between the church His legation, and state of England and the papacy; it to some extent alienated the national goodwill, for the legation of a cardinal ^ Ordinances, iii. 296 ; Rymer, x. 399 ; further instructions were given in 1432 ; Ordinances, iv. 132. ^ He was nominated to the cardinalate as early as Dec. 28, 1417, (Wharton, Ang. Sax. i. 800) by Martin V at the council of Constance. Chichele addressed a strong protest on the matter to Henry V ; this is printed by Duck in his life of Chichele (ed. 1699, pp. 115-131). According to Gloucester's letter of accusation written in 1440 (Stevenson, Wars in France, ii. 441) Henry refused him leave to accept the dignity, saying that 'he had as leef sette his coroune beside hym as to se him were a cardinal's hatte, he being a cardinal.' The second nomination was made on the 24th of May 1426 (Panvinius, Epitome Pontificum, p. 291), the title being that of S. Eusebius ; on the the 25th of the next March he received the cardinal's hat at Rouen. See Gregory, Chron. p. 161 j Chron. Lond. p. 115 ; Hall, p. 139 ; Amund. i. il. XVTII.] Beauforfs Legation, 109 was inextricably bound up in the popular mind witli heavy fees Beaufort's and procurations^ and it gave Gloucester an opportunity for attack which he had sought for in vain before. His share in the ecclesiastical struggle forms part of a very intricate episode in our church history which cannot be touched upon here. The bearings of his promotion on popular opinion and on his relations to Gloucester were immediately apparent. He returned to England in 1428, and was solemnly received at London by the lord mayor and citizens on the i st of September. Gloucester in the king's name refused to recognise his legatine authority^. He had already forwarded to Chichele the papal bull under which he was commissioned to raise money for the Hussite crusade. On the 2 3rd of November two papal envoys informed the convocation of Canterbury ^ that the pope had imposed the payment of an entire tenth for the Bohemian war. Some similar proposition had been made to the council in the pre- ceding May, but little notice was taken of the subject until the cardinal returned. The alarm of a new impost, on a nation Alarm at hia ^ ' proceedings already bearing its burdens somewhat impatiently, gave Glouces- m connexion ter his opportunity. The cardinal was treated with S^^^^^^g^lfg respect, and allowed to go on his mission to Scotland ^, but on the 17th of April, 1429, a question was raised in council which involved his right to retain the bishopric of Winchester ; ought Gloucester he, bemg a cardmal, to be allowed to officiate as bishop of Win- chester and prelate of the Order of the Garter at the approach- ing feast of S. George. The lords being severally consulted refused to determine the point, but begged the bishop to waive his right Notwithstanding this indication of his weakness, He is ai- Beaufort, on the i8th of June, obtained leave from the king list forces, and council to retain 500 lances and 2500 archers for his expedition ^. On the same day was fought the battle of Patay, * Gregory, p. 162 ; Amund. i. 26 ; Foxe, Acts and Monuments, iii. 719. ^ The convocation opened July 5, and closed about Nov. 30, after granting a half tenth to the king, and making some ordinances against the Lollards; Amund. i. 24, 32 ; Wilkins, Cone. iii. 493 sq. 496 sq. 503. ^ Amund. i, 33, 34 ; he passed through S. Alban's on his way Feb. 12, and on his return about April 11 ; ib. ; Ordinances, iii. 318. * Ordinances, iii. 323 ; Rymer, x. 414. ^ Ordinances, iii. 330-332; Rymer, x. 419-422. no Constitutional History. [chap. Beaufort's in which Talbot the English general was taken ^, and this, to Bedford, coupled with the relief of Orleans by the Maid of Orleans in the preceding month, had a marked effect on the council. On the ist of July, at Rochester, the council agreed with the car- dinal that his forces should be allowed to serve in France under Bedford for half a year He yielded the point graciously ; the approaching parliament would have to decide whether he had bettered his position. Parimment 658. The parliament met on the 22nd of September ^ The condition of France was such that the council of that kingdom had strongly urged the coronation of the young king Before he could be crowned king of France he must be crowned king of England ; preparations were accordingly made somewhat bur- Henry's riedly, and the ceremony was performed at "Westminster on the coronation. ^£ November^. As soon as England had a crowned king the office and duty of the protector terminated, and the lords spiritual and temporal voted that it should cease; on the 15th of November End of the Gloucester was obligfed to renounce it, retainin*^ only the title protectorate. ^ ° ^ ' . of chief counsellor, but leaving it open to Bedford to retain or surrender it as he pleased This stroke told in favour of the cardinal, who seems to have retained more power in par- Failure of liament than in the council. The question of his position had tlie attempt , ^ ^ ^ to exclude been raised in a new form; was it lawful for him, a cardinal, Beaufort , 1 • . . , . fromcouncU.to take his place in the king s council ; the lords voted not only that it was lawful, but that the bishop should be required to attend the councils on all occasions on which the relations of the king with the court of Home were not in question. He ' Monstrelet, liv. ii. c. 61. - Ordinances, iii. 339. On June 22 the cardinal had set out for Bohemia, but remained in France with the regent, and returned for the coronation. Gregory, p. 164 ; Hall, p. 152 ; Amund. i. 38, 39, 42 ; Eymer, x. 424, 427; Chron, Giles, p. 10. He lost his legation on the death of Martin V in 1 43 1, and the whole project came to an end. ^ Kot. Pari. iv. 335 ; Amund. i. 42. William Alyngton was speaker. * Rymer, x. 413, 4I4 ; letters to this effect were" laid before a great council on April 15, 1429 ; Ordinances, iii. 322 ; and the king announced his intentii n of going to France, Dec. 20 ; ib. iv. 10. * The ceremonies are detailed in Gregory's Chronicle, pp. 165 sq. The am uUa was used; Ordinances, iv. 7. ^ Eot. Pari. iv. 336 ; Rymer, x. 436. XVIII.] The County Franchise. Ill graciously accepted the position on tlie i8tli of December \ and I'in^'^cial >s J i- ^ ^ measures. used his influence with the commons to such purpose that on the 20th they voted a fifteenth and tenth to the king in addi- tion to a like sum granted on the 12 th, with tunnage and poundage until the next parliament^. The same day parliament was prorogued to the 1 4th of January ; in the second session Second the subsidy on wool was continued to November, 1433; the Jan. 1430- council had already been empowered to give security for loans to the amount of £50,000^, and the payment of the second fifteenth was hastened The nation was awaking to the neces- sity of a great effort to save the conquests in France. The Law of most important statute of this parliament was one which further elections, regulated the elections of knights of the shire, and fixed the forty shilling freehold as the qualification for voting^. The county elections had been a subject of intermittent legislation since the beginning of the century, but it is difficult to connect the successive changes which were introduced with any political or personal influences prevailing at the time : the matter must be considered in another chapter, and it may be sufficient to say here that as the changes in the law scarcely at all affected the composition of the House of Commons, the particular steps of the change probably resulted from local instances of undue influence and violence. It must not, however, be forgotten that the historians under Richard II had complained of the exercise of crown influence, and that the cry was repeated by the mal- contents under Henry IV. It is a wearisome task to trace the continuance of the fatal quarrel between Beaufort and Gloucester, but it is the main string of English political history for the time. Lollardy was smouldering in secret ; the heavy burdens of the nation were wearily borne ; Bedford was wearing out life and hope in a struggle that was now seen to be desperate. The Maid of ^ Rot. Pari. iv. 338. lb. iv. 336, 337; Amund. i. 44. The clergy in October 1429, granted a tenth and a half; Wilk. Cone. iii. 515; and in March 1430, another tenth ; Wilk. Cone. iii. 517. ^ Eot. Pari. iv. 339, 341, 342. Comm'ssions for raising a loan on this security were issued May 19, 1430 ; Rymer, x. 461. * Rot. Pari. iv. 342 ; Amund. i. 46, 48. ^ Rot. Pari. iv. 350. 112 Constitutional History. [chap. The Maid of Orleans was captured on the 2 6tli of May, 1430, and burned as Orlcfins* a witch on the 31st of May, 1431 ; Bedford might perhaps have interfered to save her, but such an exercise of magnanimity would have been unparalleled in such an age, and the peculiarly stern religiousness of his character was no more likely to relax in her favour than it had in Oldcastle's. On the 1 7th of December, 1 43 1, Henry was crowned king of France at Paris by Beaufort. Beaufort 659. Henry's absence in France gave Gloucester a chance in JTOGS to ri-ance. his turn. Long deliberations in council were needed before the expedition could be arranged; on the i6tli of i^pril, 1430, the cardinal agreed to accompany his grand nephew ^ ; on the Gloucester 2ist Gloucester Avas appointed lieutenant and custos of the remains as . -i t • i i lieutenant kino^dom On the 2^rd Henry sailed with a large retinue, oftlieking. * . ■, , n ? n • 1 • • dom. and remained abroad for nearly two years. During this time the duty of maintaining the authority of the council devolved on archbishop Kemp, who, although he managed to act with Gloucester in his new capacity as custos, had on more than one occasion to oppose him, and was made as soon as the Jack Sharp's Court returned to pay the penalty of his temerity. The year 1431 witnessed a bold attempt at rebellion made by the political Lollards under a leader named Jack Sharp, who was captured and put to death at Oxford in May^ The parliament of 1431^ was chiefly occupied with the financial difficulties. The country was becoming more convinced of its own exhaustion, and debt was annually increasing ^ New methods of taxation were tried and failed. This year, besides fifteenths and tenths, tunnage and j^oundage, and the continued * OrJ. iv, 35-38; Rymer, x. 456. ^ Qrd. iv. 40 sq. ; Rymer, x. 458. ' Jack Sharp's petition for the confiscation and appropriation of the temporalities of the church, being the same proposition as that put forth in 14 10 (above, p. 64) is printed from the MS, Harl. 3775 in Amundesham (ed. Riley), i. 453; of. Hall, Chr. p. 166 ; Amund. i. 63 ; Gregory, p. 172 ; Chron. Lond. p. 119 ; Ellis, Orig, Lett. 2nd Series, i. 103; Ordinances, iv. 89, 99, 107 ; Chron. Giles, p. 18. * The parliament, called in pursuance of a resolution of the great council held Oct. 6, 1430, opened Jan. 12, 1431 ; Eot. Pari. iv. 367 ; Amund. i. 57 ; Ordinances, iv. 67. John Tyrell was again speaker. The grants were made on the 20th of March. ^ In a great council, Oct. 9, 1430, the bishops and abbots lent large sums, and soon after a fifteenth was levied ; Amund. i. 55, On the 12th of July, 1430, orders were issued for constraint of knighthood ; Ord. iv. 54. XVIII.] Gloucester and Beaufort. subsidy, a grant was made of twenty shillings on the knights' Grants of fee or twenty pounds rental ^ ; and security authorised for a loan "^°°^^* of £50,000'^. The payments for Beaufort's services were a large itein in the national account ; Gloucester was still more rapa- cious, and he did not, like his uncle, hold his stores at the disposal of the state. On the 6th of November the duke again mooted in council the removal of the cardinal^, this time directly. The king's Discussions 1 -1 1 f Til- 1 -1 in council on Serjeant and attorney laid before the lords m general council a Benufort's series of precedents by which it was shown that every English bishop who had accepted a cardinal's hat vacated his see; the duke of Gloucester asked the bishop of Worcester whether it was not true that the cardinal had bought for himself an exemption from the jurisdiction of his metropolitan ; and the bishop, when pressed to speak, allowed that he had heard this stated by the bishop of Lichfield who had acted as Beaufort's proctor. The bishops and other lords present professed that their first object was the good of the kingdom, and said that, considering the cardinal's great services and near relationship to the king, they wished justice to be done on a fair trial, and ancient records to be searched. The bishop of Carlisle voted that nothing be done until the cardinal's return *. Notwithstanding this, on the 28th of November the council ordered letters of praemunire and attachment upon the statute to be drawn up, the execution of them beinff deferred until the kind's return. The same day and on the ° ^ , protector's there was a brisk debate on the question of the protector's salary, salary, in which the chancellor and treasurer were outvoted by Gloucester's friends^ led by the lord Scrope. Before the Beaufort's king's return additional offence was given by the seizure of seized. the cardinal's plate and jewels when they were landed at Dover ^. Beaufort was still abroad, and Gloucester took the opportunity which his absence offered, and which perhaps an ^ Eot. Pari. iv. 368, 369; Amund. i. 58. ^ j^^t. Pari. iv. 374. ^ Ordinauces, iv. 100. * lb. iv. 103; Rymer, x. 497. ^ Kemp and Hungerford were supported by the bishop of Carlisle, lords Harrington, De la Warr, Lovell, and Botreaux; Ordinances, iv. 103. ^ Beaufort had returned to England Dec. 21, 1430, and attended the parhament of 143T, but went back to France after Easter; Amund, i. 56, 58, 62 ; Rymer, x. 491. VOL. III. I 114 Constitutional Kistory. [chap. Change of ministers on the king's return. Parliament of 1432. Gloucester professes his desire of concord. Formal complaint of the cardinal. increasing personal influence over the king helped him to seize, to remove the ministers and make a great alteration in his nephew's surroundings. The king landed on the 9th of Feb- ruary; on the 26th Hungerford had to resign the treasurership to Scrope; on the ist of March lord Cromwell the chamberlain was dismissed, and lord Tiptoft was relieved from the stewardship of the household \' on the 4th of March, the great seal, which the archbishop of York had resigned on February 25, was confided to John Stafford, bishop of Bath^; other minor changes followed. As might be expected, the cardinal speedily returned home and the next parliament was a stormy one. 660. It met on the 12th of May at Westminster before the king in person^, and was opened by the new chancellor with a speech on the text 'Fear God, honour the King;' the three points of application being the defence of religion, the maintenance of law, and the relief of the national poverty ; the last a new feature in such addresses, but probably intro- duced now in consequence of a real pressure. On the second day Gloucester spoke, in the idea, he said, of assuring the com- mons that the lords were agreed among themselves * : he was, it was true, the king's nearest kinsman, and had been con- stituted by act of parliament his chief counsellor, but it was not his wish thei'efore to act without the advice and consent of the other lords; he accordingly asked their assistance and pro- mised to act on their advice ; the lords signified their agree- ment, and this pleasing fiction of concord was announced by the chancellor to the commons. The duke had by this assertion of his intentions thrown down the gauntlet. Beaufort took it up and made a successful appeal to the estates. He declared that, having with due licence from the king set out for Rome, he had, when in Flanders, been recalled to England by the report that ^ Rymer, x. 502 ; Ordinances, iv. 109. Hardyng speaks highly of lord Cromwell's wisdom, perhaps referring to his money-getting craft, p. 395. 2 Kymer, x. 500, 501. ^ Rot, Pari. iv. 388. John Russell was speaker ; the grants were reported July 17. The council had on the 7th addressed writs to the duke of Nor- folk, the earls of Suffolk, Huntingdon, Stafford, Northumberland, and lord Cromwt-ll, forbidding them to bring up more than their ordinary retinue ; Ordinances, iv. 112. * Rot. Pari. iv. 389. XYIII.] CromwelVs Comjjlamt. 115 he was accused of treason. He had returned to meet the charge : let the accuser stand forth and he would answer it. The demand was debated before the king and Gloucester, and The king d,Gcl9.i*GS tiim the answer was that no such charge had been made against loyal, him, and the king accounted him loyal. Beaufort asked that this proceeding might be recorded, and it was done ^ In the A com- matter of the jewels he was easily satisfied : they were restored to him, and he agreed to lend Henry £6000, to be repaid in case the king within six years should be convinced that the jewels had been illegally seized, and £6000 more as an ordinary loan. At the same time he respited the payment of 13,000 marks which were already due to him^. The victory, for it was a victory, was thus dearly purchased ; but Beaufort prob- ably saw that the choice of alternatives was very limited, and that it was better to lend than to lose. His sacrifice was appreciated by the commons. On their petition a statute was passed which secured him against all risks of praemunire^ Encouraged by the cardinal's success, lord Cromwell, on the Lord Crom- well Rsks to 1 6th of June, laid his complaint before the lords; he had, be told the reason of his contrary to the sworn articles by which the council was regu- dismissal, lated, been removed from his office of chamberlain : he re- counted his services, producing Bedford's testimony to his character, and demanded to be told whether he had been removed for some fault or offence. Gloucester refused to bring forward any charge against him. He was told that his removal He is was not owing to his fault, but was the pleasure of the duke and the council ; and this formal acquittal was enrolled at his request among the records of parhament*. On the 15th of Grant of July the supplies were granted ; half a tenth and fifteenth was voted, with tunnage and poundage for two years ; and the sub- sidy on wool was continued until November 1435^ Of the ^ Eot. Pari. iv. 390, 391 ; Rymer, x. 517. ^ Eot. Pari, iv, 391 ; Eymer, x. 518. In 1434 Henry promised that the £6000 should be repaid and then Beaufort lent £ 10,000 more; Ordinances, iv. 236-239. ^ Eot. Pari. iv. 392 ; Eymer, x. 516. * Eot. Pari. iv. 392. ^ lb. iv. 389. The Canterbury clergy granted a half tenth, the York dergy a quarter of a tenth ; Wilk. Cone. iii. 521, I 2 ii6 Conditut'ional History . [chap. Minor minor transactions of tlie parliament some were important ; inparlia- Sir John Cornwall, who liad married the duchess of Exeter, daughter of John of Gaunt, was created baron of Fanhope in parliament^ ; the duke of York was declared of age ; and the statute of 1430 was amended by the enactment that the freehold qualification of the county electors must lie within the shire^. The complicated grant of land and income tax of 1431, which it was found impossible to collect, was annulled^. Two petitions of the commons, one praying that men might not be called before parliament or council in cases touching freehold*, the other affecting the privileges of members molested on their way to parliament^, were negatived. The result of the proceedings was on the whole advantageous to Gloucester ; he had failed to crush the cardinal, but he retained his predominance in the council. He was not to retain it long. Proceedings 661. The hopes of the English in France were rapidly in France, waning. The duke of Burgundy was growing tired of the struggle, Bedford's health and strength were rapidly giving way. The death of his wife in November 1432 broke the strongest link that bound him to duke Philip, and a new marriage which he concluded early in 1433 with the sister of the count of S. Pol, instead of adding to the number of his allies, weakened his hold on Burgundy. Negotiations were set on foot for a general pacifi- cation. Gloucester spent a month on the continent, trying his hand at diplomacy® ; and immediately on his return summoned the parliament to meet in July. In the interval Bedford and Burgundy met at S. Omer, and the coolness between them be- came a quarrel, although they had still so great interests in common that they could not afford to break up their alliance. ^ Rot. Pari. iv. 400 ; ' 1 7™*' die Julii ultimo die praesentis parliamenti, in trium statuum ejusdem parliamenti praesentia de avisamento . . . dami- norum spiritualium et temporalium in parliamento praedicto existentuum, praefatuui Johannem in baronem indigenam regni siii Angliae erexit praefecit et creavit.' Cf. Rymer, x. 524. The Chronicle published by Dr. Giles, p. 9, states that Cornwall was made baron of Fanhope, and the lords Cromwell, Tiptoft, and Hungerford were created at Leicester in 1426, ^ Rot. Pari. iv. 409 ; Statutes, ii. 273. ^ Rot. Pari. iv. 409. * lb. iv. 403. ^ lb. iv. 404. ^ April 22 to May 23 ; Rymer, x. 548, 549. XVIII.] Bedford's last Visit. 117 At the end of June Bedford visited England once more, and lie Parliameitt was present at tlie beginning of the session ^ Whether he had seen or heard anything that led him to suspect his brother's friendship, it is not easy to say ; but on the sixth day of the parliament he announced that he had come home to defend lu'mself against false accusations. It had been asserted, as he Bedford understood, that the losses which the king- had sustained in self against France were caused by his neglect ; he prayed that his accilf^ers charges, might be made to stand forth and prove the charges^. After mature deliberation the chancellor answered him : no such charges had reached the ears of the king, the duke of Gloucester, or the council. The king retained full confidence in him as his faithful liegeman and dearest uncle, and thanked him for his great services and for coming home at last. A sudden alarm of plague broke up the session in August, to be resumed in October^; but the effect of Bedford's visit on the administra- tion was already apparent; lord Cromwell before the proro- change of gation was appointed treasurer of the kingdom*, and in "Treuiiurer. interim prepared an ehiborate statement of the national accounts. Money was so scarce that the parliament authorised him to stay all regular payments until he had X2000 in hand for petty expenses. Cromwell's statement of the national finances'^ was Lord brought up on the i8th of October, and was alarming if not ii[,ancia/^ appalling. The ancient ordinary revenue of the crown, which in the gross amounted to £23,000, was reduced by fixed charges to .£8,990; the duchy of Lancaster furnished £2,408 clear, the indirect taxes on wine, and other merchandise brought in an estimated sum of £26,966 more. The government of Ire- land just paid its expenses ; the duchy of Guienne, the remnant of the great inheritance of queen Eleanor, furnished only £77 OS. 8|cZ. : the expenses of Calais, £9,064 15s. 6d., exceeded the whole of the ordinary revenue of the crown. The sum ' Parliament opened July 8 ; Roger Hunt was the speaker ; Eot. Pari, iv. 419, 420; Stow, p. 373; Fabyan, p, 607. Bedford reached London June 23; Chr. Lond. p. 120. 2 j^^^ Pari. iv. 420. 2 The parliament was prorogued Aug. 13, to meet again Oct. 13; Rot. Pari. iv. 420. > * Aug. 11; Ordinances, iv. 175. ^ Rot, Pari. iv. 432-439. ii8 Constitutional History. [chap. Fijiancial statemeut. Bedford's proposal to economise. D(^claration of concord. The Com- mons pray Bedford to stay in England. His-self- denying offer. available for administratioD, £38,364, was altogether insufficient to meet the expenditure, which was estimated at £56,878, and there were debts to the amount of £164,814 iis. iJcZ. It is probable that the accounts of the kingdom had been in much worse order under Edward III and Richard II, but the general state of things had never been less hopeful. All expenses were increasing, all sources of supply were diminishing. But there could not have been much maladministration ; a single annual grant of a fifteenth would be sufficient to balance revenue and expenditure and would leave something to pay off the debt. There was reason for careful economy ; Bedford determined to make an effort to secure so much at least, and the discussion of public business was resumed on the 3rd of November \ On that day the commons, after praying that a proclamation might be issued for the suppression of riotous assemblies, which were taking place in several parts of England, requested that the duke of Bedford would make, and the duke of Gloucester and the council would renew, the promise of concord and mutual co-operation Avhich had been offered in the last parliament. This was done, and the two houses followed the example^. On the 24th the speaker addressed the king in a long speech, extolling the character and services of Bedford, and stating the belief of the commons that his continued stay in England would be the greatest conceivable security to the well-being of the king and his realms : he besought the king to request the duke to abide still in the land. The lords, on being con- sulted by the chancellor, seconded the prayer of the commons, and the proposal was at once laid before the duke. Bedford, in a touching speech, full of modesty and simplicity, declared himself at the king's disposal. The next day, giving a laudable example of self-denial, he offered to accept a salary of £1000 as chief counsellor instead of the 5000 marks which Gloucester had been receivings and on the 28th Gloucester in council ^ A very peremptory summons was issued on Nov. i for the immediate attendance of several lay lords and abbots ; Lords' Report, iv. 887. 2 Rot. Pari. iv. 421, 422. s -^^ ^^j. * The wages of the councillors are a constantly recurring topic in all the records of the time; see especially Rymer, x. 360; Ordinances, iii. 156, XYIII.] Bedford chief Counsellor. 119 agreed to accept the same sum^. At the close of the session the Economies archbishops, the cardinal, and the bishops of Lincoln and Ely council, agreed to give their attendance without payment, if they were not obliged to be present in vacation^. This simple measure effected a clear saving of more than .£2000 a year. The good- will of the commons followed on the good example of the council; a grant of one fifteenth and tenth, minus the sum of Grants in £4000 which was to be applied to the relief of poor towns, ^as voted, and tunnage and poundage continued^. The fifteenth would bring in at least £33,000, and the clerical grant voted in November* would give about £9,000 more. The council was em- powered to give security for 100,000 marks of debt^, and it was agreed, on the treasurer's proposal, that the accounts should be audited in council ^ On the i8th of December Bedford Eedford produced the articles of condition on which he proposed to the office undertake the office of counsellor; he wished to know who counsellor, would be the members of the continual council ; he demanded that without his advice and that of the council no members should be added or removed, that the opinion of the council should be taken as to the appointments to great offices of state, that he should, wherever he was, be consulted about the sum- moning of parliament and the appointment to bishoprics, and that a record should be kept of the names of old servants of the king, who should be rewarded as occasion might offer. All these points were conceded, and the duke entered upon his office'^. But he was destined to no peaceful or long tenure. It was soon seen that even with Bedford at home duke Humfrey could •202, 222, 265, -278; iv. 12; Rot. Pari. v. 404. Cardinal Beaufort when attending the king in France had £4000 per annum; Rymer, x. 472. Gloucester was to receive 4000 marks as lieutenant during the king's absence; 2000 when he was in England; Ord. iv. 12 : to this sum 2000 marks were added, ib. p. 103 ; and 5000 marks fixed as his ordinary salary, ib. p. 105. * Rot. Pari. iv. 424 ; Ordinances, iv. 185. 2 Rot. Pari. iv. 446, ^ ^25, 426, * Dep. Keeper's Rep. iii. App. p. 15. It was three quarters of a tenth; Wilk. Cone. iii. 523. ^ Rot. Pari. iv. 426. « Ib. iv. 439. ^ Ib. iv. 423, 424. 12,0 Constitutional Histor?/. [chap. Tneasy not long be kept quiet. Signs of uneasiness and mistrust between between the two brothers at last appeared. It was proposed and that Gloucester should go to France, where the earl of Arundel liedford. tasked beyond his strength in the defence of Nomiandy. The country was not altogether indisposed to peace, and an order had been passed in the parliament of 1431 that Bedford, Gloucester, Beaufort, and the council might open negotiations ^ On the 26th of April, 1434, a large council was held at "West- minster^, a considerable number of lords and knights who were not of the privy council being summoned by writs of privy seal. Gloucester offered to go to France, and reviewed the conduct of the war there in such terms that Bedford, conceiving himself to be attacked, demanded that the words should be written down, in order that he might defend himself before the king. Gloucester's The council deliberated on Gloucester's proposition and found proposition, that it would involve an expenditure of nearly £50,000, which they saw no means of raising^. Gloucester, who as usual dealt in generalities, was pressed to explain how the money was to be secured. Bedford and the council severally appealed to the king, who declared that the matter must go no further. Henry The poor lad, now only thirteen, consulted the council, and SetNveen probably under tlie advice of Beaufort, told the dukes that they uncleb. were both his dearest uncles, that no attack had been made on the honour of either, and that he prayed there should be no discord between them. The discord indeed ceased, but Bedford immediately began to prepare for departure. On the 9th of June he addressed three propositions to the king; the revenues of the duchy of Lancaster should be applied to the war in France ; the garrisons in the march of Calais should be put under his command ; and he should be allowed to devote for two years the whole of his own Norman revenue to the war^. The king and council gratefully agreed : on the 20th he took his Bedford leave of them^, and about the end of the month he sailed for tolerance. France, His game there was nearly played out. After a ^ Rot. Pari. iv. 371. ^ Ordinances, iv. 210-213 3 Ordinances, iv. 213 sq. * lb. iv. 222-226; Eot. Pari. v. 435-438. * Ordinances, iv. 243-247. XVIII.] Beath of Bedford, 121 conference with the duke of Burgundy at Paris at Easter 1435, Congress he was obliged, by the pressure of the pope and his conviction of his own failing strength, to agree to join in a gi'and European congi'ess of ambassadors which was to be held at Arras in August, for the purpose of arbitrating and if possible making peace. Tlie French offered considerable sacrifices, but the Defection of English ambassadors demanded greater ; they saw that Bur- ^^'s'^^'^y- gundy was going to desert them, and on the 6th of September withdrew from the congress. Burgundy's desertion was the last thing required to break down the spirit and strength of Bedford. He died on the 1 4th at Eouen. Duke Philip, relieved Bedford's 1 1 • 1 1 p IT- • 11' death, by his death irom any obligation to temporise, made his terms with Charles VII, and a week later renounced the English alliance. Bedford must have felt that, after all he had done and suffered, he had lived and laboured in vain. The boy king, when he wept with indignation at duke Pliilip's unworthy treat- ment, must have minsled tears of still more bitter o-rief for the loss of his one true and faithful friend. 662. With Bedford Enoland lost all that had .,„..- . was answered by a letter of the council ^, m which, not caring to notice the personal charges, they defended the policy of the act : it was an act of the king himself, done for the desire of peace ; a desire fully justified by the great cost of bloodshed, the heavy charges, the exhaustion of both countries : it was a bad example to doom a prisoner of war to perpetual incarcera- tion ; or by vindictively retaining him to lose all the benefit of his cooperation in the obtaining of peace. The answer is full of good sense and good feeling, but it could never have com- manded the same success as tlie manifesto of duke Humfrey obtained. That document helped to substitute in the mind of the nation, for the wholesome desire of peace which had been gradually growing, a vicious, sturdy, and unintelligent hatred to the men who were seeking peace : a feeling which prejudiced the people in general against Margaret of Anjou, and which, after having helped to destroy Gloucester himself, caused the outbreak of disturbances which led to civil war. It is curious ^ Henry V had left this lady ' 300 marks worth of ly velode,' if she should marry within a year. She had waited two years and more ; notwithstand- ing Beaufort, as his nephew's executor, had paid the money. ^ Stevenson, Wars in France, ii. 451. XVIII.] "Eleanor Cohham, 127 to note how Gloucester tries to represent the duke of York and Mischief the earl of Huntingdon as sharers in his feelings of resentment. Gloucester. Either he was too much blinded by spite to see the real drift of the cardinal's policy, or else those deeper grudges of the royal house, which had cost and were still to cost so much bloodshed, were at the time altogether forgotten in the personal dislike of the Beauforts. Notwithstanding the protest, the duke of Orleans obtained his freedom. The next year witnessed a miserable incident that served to Eleanor show that Gloucester was either powerless or contemptibly Gloucester's wife tried, pusillanimous-^. After his separation from the unfortunate for witch- Jacqueline, which was followed by a papal bull declaring the nullity of their marriage, he had consoled himself with the society of one of her ladies, Eleanor Cobham, whom he had subsequently married. Eleanor Cobham, early in 1441, was suspected of treasonable sorcery, and took sanctuary at West- minster. After appearing before the two archbishops, car- dinal Beaufort, and bishop Ascough of Salisbury, she was imprisoned in Leeds castle ; and subsequently, on the report of a special commission, consisting of the earls of Huntingdon and Suffolk and several judges, she was indicted for treason. After several hearings, she declined to defend herself, and sub- mitted to the correction of the bishops, and did penance ; she was then committed to the charge of Sir Thomas Stanley and kept during the remainder of her life a prisoner. The object of her necromantic studies was no doubt to secure a speedy succession to the crown for her husband. He does not seem to have ventured to act overtly on her behalf ; whether from cowardice or from a conviction of her guilt. It was not for- gotten that queen Johanna had in the same way conspired against the life of Henry V ; and when both accusers and accused fully believed in the science by which such treasonable designs were to be compassed, it is as difficult to condemn the prosecutor as it is to acquit the accused. The people, we are told, pitied the duchess. If the prosecution were dictated ^ Chron. Lond. pp. 129, 130; Engl. Chron. (ed, Davies) pp. 57-60; Stow, p. 381; Fabyan, p. 614; Rot. Pari. v. 445. 128 Constitutional History. [chap. Parliament of 1442. Trials of peeresses regulated by statute. Heni*y comes of by hostility to lier husband, the story is disgraceful to both factions alike. During the years 1441 and 1442 the duke of York won some credit in the north of France ; the power of Charles VII was increasing in the south. The English parliament met on the 25th of January in the latter year\- granted the subsidies, tunnage and poundage, for two years, a fifteenth and tenth, and the alien tax. The vote of security for .£100,000 had now become an annual act. A petition, connected doubtless with the duchess of Gloucester's trial, that noble ladies should, under the provisions of Magna Carta, be tried by the peers, was granted ^ ; Sir John Cornwall, the baron of Fanhope, was created baron of Milbroke. The statute of Edward III was ordered to be enforced on the royal purveyors : there were few general complaints, as what little legislation was attempted was connected with the promotion of trade and commerce, which from the beginning of the Lancastrian period had been so prominent in the statute-book. A demand was made for the examination of the accounts of the duchy of Lancaster, which was still in the hands of the cardinal and his co-feoffees for the execution of the will of Henry V ^. The young king was busy with his foundations at Eton and Cambridge. 664. On the 6th of December, 1442, Henry reached the age of legal majority, and must then have entered, if he had not entered before, into a full comprehension of the burden that lay upon him in the task of governing a noble but exhausted people. ^ Rot. Pari. V. 35; William Tresham was again spenker ; the grants were made March 27; ib. pp. 37-40. ' At which parliament it was or- dained that the sea should be kept half a year at the king's cost, and therefore to pay a whole fifteenth, and London to lend him £3000'; Chr. Lond. p. 130. The force fo ordered included eight great ships of a hun- dred and fifty men each ; each ship attended by a barge of eighty men, and a balynger of forty : also four ' spynes ' of twenty-five men ; it was to keep the sea from Candlemas to Martinmas ; Rot. Pari. v. 59. Convocation granted a tenth, April 16; Wdk. Cone. iii. 536. A general pardon was granted at Easter 1442, from which remunerative returns were expected, Ordinances, v. 185. 2 Eot. Pari. V. 56. ^ Rot. Pari. V. 56-59. The appropriation of the duchy revenue to the household, ordered in 1439, was continued for three years ; ib. p. 62. XVIII.] Character of Kenry VI. 129 and of setting to right the wrongs of a hundred years ^. He ^^^^^t^o^the^'^" been very early initiated in the forms of sovereignty. Before king, he was four years old he had been brought into the painted chamber to preside at the opening of parliament, and from that time had generally officiated in person on such occasions. Before he was eight he Avas crowned king of England, and as soon as he was ten king of France. At the age of eleven he had had to make peace between his uncles of Bedford and Gloucester, and at thirteen had shed bitter tears over the defection of Burgundy. Whilst he was still under the discipline of a tutor, liable to per- sonal chastisement at the will of the council, he had been made familiar with the great problems of state work. Under the teaching of Warwick he had learned knightly accomplishments ; Gloucester had pressed him with book learning ; Beaufort had instructed him in government and diplomacy, He was a some- Hewasover- what precocious scholar, too early taught to recognise his work yotlth^|" ^^^^ as successor of Henry V. It is touching to read the letters written under his eye, in which he petitions for the canonisation of S. Osmund and king Alfred, or describes the interest he takes in the council of Basel, and presses on the potentates of east and west the great opportunity for ecclesiastical union which is afforded by the councils of Florence and Ferrara ^. Thus at the age of fifteen he was hard at the work which had overtasked the greatest kings that had reigned before him, and which is undone still. In the work of the universities, like duke Hum- His interest frey himself, he was as early interested ; his foundations at j^^qj^^^®^^^^^^^^^* and Cambridge were begun when he was eighteen, and watched with the greatest care as long as he lived. The education of his half-brothers Edmund and Jasper Tudor ^ was a matter of serious * A panegyric on Henry VI, written by John Blakman, S.T.B., after- wards a monk of the Charterhouse, furnishes some of the most distinct traits of his character ; it is edited by Hearne, at the end of his Otterbourne, i. 287 sq. 2 Beckington's Letters, ed. Williams, i. 134, &c. 'NonnulHs etiam solebat clericis destinare epistolas exhortatorias, caelestibus plenas sacra- mentis et saluberrimis admonitionibus ' ; Blakman, p. 290. ^ ' Quibus pro tunc arctissimam et securissimam providebat custodiam ' ; Blakman, p. 293. The same writer records his habit of saying to the Eton VOL. III. K 130 Constitutional History* [chap. ^jWeak thought to him whilst he was a child himself. Weak in health, — for had he been a boy of average strength he would have been allowed to appear in military affairs as early as his father and grandfather had appeared, — and precocious rather than strong in mind, he was overworked from his childhood, and the overwork telling upon a frame in which the germs of hereditary insanity already existed, broke down both mind and body at the most SfJfort^es ^^^^^^^^ period of his reign. Henry was perhaps the most un- fortunate king who ever reigned ; he outlived power and wealth and friends ; he saw all who had loved him perish for his sake, and, to crown all, the son, the last and dearest of the great house from which he sprang, the centre of all his hopes, the depositary of the great Lancastrian traditions of English polity, set aside and slain. And he was without doubt most innocent of all the evils that befel England because of him. Pious, pure, generous, patient, simple \ true and just, humble, merciful, fastidiously conscientious, modest and temperate, he might have seemed made to rule a quiet people in quiet times. His days were boys 'sitis boni pueri, mites et docibiles et servi Domini'; ib. p. 296. His answer to the petition for the restoration of grammar schools is in Hot. Pari. V. 137. Beckington's Letters are full of illustrations of his zeal for the universities. Yet Hardyng describes him as little better than an idiot when a child : *The Erie Richard in mykell wprthyhead Enfourmed hym, but of his symplehead He could litle within his brest conceyve; The good from evill he could uneth perceive'; p. 394. He was so tired 'of the S3miplesse and.great innocence of ICing Henry' that he resigned his charge and went to France ; p. 396. Henry's tendency to insanity may have come from either Charles VI or Henry IV. ^ 'Vir simplex sine omni plica dolositatis aut falsitatis, ut omnibus constat'; Blakman, p. 288. ' Veridica semper exercuerat eloquia'; p. 288. ^Fuerat et rectus et Justus . . . nulli vero injuriam facere voluit scienter'; ib. p. 288. His early attempts at the exercise of power were checked ; in 1434 the council advised him not to listen to suggestions about important matters, or about the changing of his governors; Ord, iv. 287 ; Rot. Pari. V. 458. In 1438 they tell him that he gives too many pardons, and has thrown away 1000 marks by giving away the constableship of Chirk ; Ordin. v. 89. The executions which followed Cade's rebellion may be alleged against his merciful disposition ; but although cruelty would be by no means wonderful in the case of a panic-stricken, nervous invalid, Henry's horror of slaughter and mutilation is so well attested that those acts must be charged on Somerset and his other advisers, rather than on the king. See Blakman, pp. 301, 302. XVIII.] Longing for Peace. 131 divided between the transaction of business and the reading of Henry's history and scripture \ His devotion was exemplary and un- and sanctity, questionably sincere ; he left a mark on the hearts of English- men that was not soon erased : setting aside the fancied or fabled revelations, a part perhaps of his malady, and the false miracles that were reported at his tomb, it was no mere political feeling that led the rough yeomen of Yorkshire and Durham to worship before his statue, that dictated hymns and prayers in his honour, and that retained in the Primer down to the Eeforma- tion the prayers of the king who had perished for the sins of his fathers and of the nation. It is needless to say that for the throne of England in the midst of the death-struggle of nations, parties, and liberties, Henry had not one single qualification. He was the last medieval king who attemj^ted to rule England as a constitutional kingdom or commonwealth. 665. His cominer of affe did not much affect his actual posi- The cardinal TT 1 1 1 T -1 • o ' continues to tion. He had lonej been recognised as the depositary of executive be the king's -, . , . , 1 M l . 1 chiefadviser. powers which were to be exercised by the council ; he continued under the influence of the cardinal, from whom he had learned the policy of peace, though he had not learned the art of govern- ment. That which was a policy in Beaufort was in Henry a true love and earnest desire. He must have longed for peace as a blessing which he and living England had never known. Gloucester, powerless for good, stood aloof from government, sometimes throwing in a cynical remark in council, but chiefly employed in cultivating popularity and that reputation as a lover of literature which has stood him in so good stead with posterity. The parallel lines of war and negotiation run on for Rivalry be- three years more : the war kept alive by the emulation of the and the duke of York and the Beauforts, a rivaby which, whilst it prevented anything like concerted action, saved the reputation of English valour abroad. The duke's term of office lasted until 1445; in 1442 a great expedition under Somerset was ^ ' Aut in orationibus, ant in scripturarum vel cronicarum lectionibus assi- due erat occupatus '; Blakman, p. 289. ' Dies illos aut in regni negotiis cum consilio suo tractandis . . . aut in scripturarum lectionibus, vel in scriptis aut cronicis legendis non minus diligenter expendit'; ib. p. 299. K 2 Constikitional History* [chap. Beaufort supplies money for Somerset's expedition to France in 1443- Edmund Beaufort. Council called in 1443- Political action of the earl of Suffolk. contemplated^ ; tlie want of money delayed it until the summer of 1443 ; funds were at last provided by the cardinal, who pledged his jewels and plate and furnished £20,000 ; insisting, however, that security should be given in a special form submitted to the council, which called forth from Gloucester the sneering remark that as his uncle would lend on no other terms it was little use reading the special form-. Before the expedition started distinct assurances were given that Somerset's authority should not prejudice the position of the duke of York as regent ^ ; but the provision was almost neutralised by his promotion to the rank of duke. John Beaufort was made duke of Somerset in August 1443. His campaign was marked by no great success, and in the following May he died, leaving as his heiress the little lady Margaret, and as the representative of the family his brother Edmund, now marquess of Dorset and count of Mortain and Harcourt. Archbishop Stafford was still chancellor. Lord Cromwell resigned the treasurership in July 1443, ^^^^ succeeded by Ealph Boteler, lord Sudeley'*. No parliament was held between 1442 and 1445, t>ut a great council was ordered for the third week after Easter in 1443, to which in ancient fashion all freeholders were to be called, and possibly a new tax propounded ^. It is uncertain whether it was ever summoned, and if summoned it either did not meet or effected nothing. The year 1444 was occupied with negotiation. The earl of Suffolk, AVilliam de la Pole, grandson of Bichard II's chancellor, and closely connected by marriage with the Beauforts, was the head of the English embassy to France; and he, whether pressed by the court in defiance of his own misgivings, or deliberately ^ Sept. 8, 1443, the duke of Somerset went to France ; 3700 men were slain or taken during the expedition ; Gregory, p. 185. Tne preparations for the expedition formed a considerable part of the deliberations in council for nearly a year before ; Ordinances, v. 218-409. ^ Ordinances, v. 279, 280. ^ lb. v. 261. * lb. V. 299, 300 ; E}Tner, xi. 35. Sudeley retained office until Dec. 18, 1446, when bishop Lumley of Carlisle succeeded him. ^ All the king's freemen and the gi-eat council were to be summoned to meet at Westminster a fortnight after Easter, May c, 1443 ; Ordinances, V. 236, 237. No records are in existence that show this assembly to have met, but it is possible that some financial expedients which are described ia the Ordinances, v. 418 sq., may belong to this date. XVIII.] Marriage of Henri/. 133 ])ursiiiiiQ: the policy which, whilst it was the best for the country, Negotiations for j)6^cc lie felt would be ruinous to himself ^ concluded on the 28th of May a truce which was to last till the ist of April, 1446 ^. A truce con- During the truce negotiations were briskly pushed for a mar- ' riage, or number of marriages, which might help to secure a permanent peace. Henry, it was proposed, should marry Margaret, daughter of Rene of Anjou, the titular king of Naples and count of Provence ; and the duke of York might obtain a little French princess for his baby son Edward ^ The former The king's match was pressed and concluded by Suffolk, who, having been Apriri^'s. created a marquess on the 14th of September, 1444, was sent to Nancy to perform the ceremonies of betrothal. Margaret was brought to England early in the following year and married on the 22nd of April; on the 30th she was crowned. She was sixteen at the time. Henry, in contemplation of the ceremony, had on the 2 5th Parliament of January opened a parliament, which sat, with several proroga- ° ^^^^ ^' tions, until April 9, 1446^. This parliament, in March 1445, granted a half fifteenth and tenth and in April, 1446, a whole fifteenth and tenth and another half^: it also continued the subsidy on wool until Martinmas, 1449. The peace and the young queen were as yet new and popular, and the restoration of commerce with France was a great boon. On the 2nd of Suffolk June, 1445, Suffolk gave an account of his labours to the lords, his services, and on the 4th repeated it to the commons; both houses thanked him and recommended him to the king for his special favour ; the record of his services and the votes of thanks were entered on the rolls of parliament'^. On the last day of the session the chancellor addressed Henry in the name of the lords, in ^ See below, p. 140, ^ Rymer, xi. 59-67; Rot. Pari. v. 74. ^ Stevenson, Wars in France, i. 79, 80, 160, 168. * Rot. Pari. V. 66. William Burley was speaker. ^ Mar. 15 ; Rot. Pari. v. 68. Convocation granted a tenth in Oct. 1444, and another in 1446; Wilk. Cone. iii. 539 sq , 554. The pope had also imposed a tenth on the clergy for a crusade, and sent the golden rose to Henry; ib. p. 55 1. The king and clergy refused the papal tenth. Cf. Stow, p. 385. The golden rose was delivered Nov. 29, 1446. 6 Rot. Pari. V. 69 ; Hall, Chr. p. 206. I Rot. Pari. v. 73 ; Stow, p. 385. 134 Constitutional History. [chap. Tiasting^ contemplation of the king's visit to France for the purpose of peace. completing the pacification. The thought of peace had come, he said, not by the suggestion of the king's subjects but by direct inspiration from God : if the king would declare that his pur- pose of peace was thus spontaneous, the lords would do their best to make it a reality. The words, somewhat ominous, betray a misgiving and, read by the light of later events, look like a pro- test ^. The article of the peace of Troyes, which had bound the king not to make peace with Charles without the consent of the three estates of both realms, was however annulled by act of parliament ^ All seemed to promise a speedy end to the long trouble and the opening of a new era of happiness for England. Gloucester's It was the crowning victory of Beaufort's life, and it was the most dislike to the n- , « « ^ i ^ i policy and galling deieat lor Gloucester : not that he caretl to continue the jidvocfitcs of peace. war or would have much preferred the daughter of the count of Armagnac to the daughter of the count of Provence ^, but that still vdiatever Beaufort aimed at he tried to hinder. But the ^uffoSf \oji% rivalry was near. In the earl of Suffolk Glou- cester had a rival, perhaps an enemy, who cared less about the blood of Lancaster than the Beauforts did ; who had devoted himself heart and soul to the service of the young queen, and looked with no special love on the man who, until she should bear a son, stood in the relation of heir presumptive to the king. At once he took the leading place in the counsels of the young couple ; Gloucester was scarcely consulted In the event ^ Eot. Pari. V. 102. ^ lb. v. 102, 103. " The Armagnac marriage had been proposed in 1442 (Rymer, xi. 7 ; Negotiations, &c., in Beckington, Letters, ii. 178-248) : but if Gloucester had preferred it, he had reconciled himself to the Angevin match before Margaret's arrival, and had met her with great pomp. On the last occasion too in parliament he had put himself forward in commending Suffolk ; Rot. Pari. V. 73. * • Incepit rex Henricus graves et ingratas occasiones et querelas conti a avunculum ducem Glocestriae ministrare, renuens ejus praesentiam et ab ipso se muniens cum custodibus armatis non paucis, tauquam ab ejus aemulo et inimico mortali ' ; Chron. ed. Giles, p. 33. Whethamstede's Regis- ter, di awn up by one who was well acquainted with duke Humfrey's history, says that his enemies so prejudiced the king, 'ut crederet rex eum iUiiis esse inimicum adeo grandem quod moliretur assidae media quibus posset jura coronae sibi surripere ilHque clam procurare necem ac sic in se regni regimen usurpare ' ; i. 1 79. Hall, Chron. p. 209, says that the duke was summoned before the council and accused of maladministration during the king's XVIII.] Parliament of Bury. 135 of queen Margaret being childless, Suffolk had, as was suspected, Design im- a deep design of his o\\ti; he obtained the wardship of the little ^^*^'^*°^™* lady Margaret \ on whom the representation of the title of John of Gaunt devolved at her father's death. Child as she was, he projected for her a marriage with his son John : it might come to pass that the great-great-grandson of the merchant William de la Pole would sit on the throne of England. The obscure story of the arrest and death of Gloucester will, it may be safely assumed, never be cleared up ; and the depth of the darkness that covers it has inevitably been made the occasion of broadcast accusations and suspicions of every sort. The ostensible events were simple enough. 666. It is by no means improbable that before the end of Threatened 1446 an attempt was made to bring the duke to account for his Gloucester, administration as protector, and that a somewhat stormy session of parliament was to be expected when it next met. Overt action however was reserved for 1447. England had been in 1445 and 1446 devastated by the plague. It was not at all unreasonable to hold a parliament, under the circumstances, away from London ; and the parliament of 1447 was summoned to meet at Cambridge. By a second writ it was Parliament transferred to Bury S. Edmund's, a place where Suffolk was strong and Gloucester would be far away from his friends the Londoners. There it met on the loth of February^. The archbishop an- nounced the cause of summons — to provide the king with money for a visit to France which was in contemplation^. William Tresham, knight of the shire for Northamptonshire, and a friend of the duke of York, was chosen speaker. A large force was Porces col- encamped in the neighbourhood, and it was perhaps known that spot, some proceedings in parliament relating to the duke's conduct were to be expected. Neither the duke nor the cardinal seems minority, of illegal executions and extra-legal cruelties ; from which charges he freed himself in a clever speech and was acquitted. There are no traces of this in the extant authorities. ^ Cooper's Lady Margaret, p. 5 ; Excerpt. Hist. pp. 3, 4. 2 Rot. Pari, V. 128. The last day of the session was March 3; ib. p. 135. The credit for £ioo,oco was given on that day. ^ This visit which never took place occupies a prominent place in the negotiations of these years, as ' Personalis Conventio '; Rymer, xi. pp. 87 sq. J ^6 Co7istitutional History. [chap. Arrest of to have been present at the openins: of the session. On the Gloucester. ^ . . 1 8th of February Gloucester arrived with about eighty horse- men and was met a mile out of the town by the treasurer and controller of the king's household, who bade him retire at once to his lodgings. As soon as he reached the North Spital, where he was to lodge, and had supped, he was arrested by the viscount of Beaumont, who appeared attended by the duke of Buckingham, the marquess of Dorset, and the earl of Salisbuiy. Several other persons were arrested at the same time ; and on the following days a large number of the duke's servants were His death, imprisoned ^ On the 23rd duke Humfrey died in his lodging, called St. Saviour's, outside the north gate ^ : the next day his body was viewed by the members of the parliament, after which it was taken to be buried at S. Alban's. Such little business as could be done in parliament was hurried through ; no grants were asked for ; and in March the king went down to Canter- Obscm-ity of bury. It would be vain to attempt to account positively for the question. ^ ^ r j Gloucester's death ; it may have been a natural death, produced or accelerated by the insult of the arrest ; it may have been the work of an underling who hoped to secure his own promotion by taking a stumbling-block out of his master's path : if it were the direct act of any of the duke's personal rivals, the stain of guilt can hardly fall on any but Suffolk. It is impossible to ^ See an account by a contemporary writer in English Chron. ed. Davies, pp. 116-118. ^ ' Fecit eum rex . . arestari, ponique in tarn arcta custodia quod prae tristitia decideret in lectum aegritudinis, et infra paucos dies postering secederet in fata'; Regist. Whethamstede, i. 179. Cf. Gregory, p. 188; Chr. Giles, p. 34; Fabyan, p. 619. The French contemporary historian Mathieu de Coussy asserts that he was strangled, ap. Buchon, xxxv. p. 102 ; the same writer (xxxvi. 83) says that the murder was ascribed by some to the duke of York, who indeed was the only person who was likely to profit by it. But this is most improbable. Hardyng, who wrote in the Yorkist interest, says, p. 400 : — ' Where in parlesey he dyed incontinent For hevynesse and losse of regiment ; And ofte afore he was in that sykenesse In poynt of death, and stode in sore distress ; he so dyed in full and hole creaunce As a christen prince of royall bloude full clere, Contryte in herte with full greate repentaunce.' Cf. Stow, p. 386. XYIII.] Gloucester s Death, 137 suppose that Henry himself was cognisant of the matter, it is hard to suspect Margaret, a girl of eighteen, although cardmal's she had already made herself a strong partisan, and there may have lurked in her that thirst for blood which marked more or less all the Neapolitan Angevins. It cannot be sup- posed that the cardinal would in the last year of his life reverse the policy on which he had acted for fifty years and deal such a fatal blow to the house of Lancaster ; or that the marquess of Dorset, who had more to fear from the duke of York than from the duke of G-loucester, would connive at a deed so contrary to the interest of the Beauforts. It is just possible that the council, The council which must have ordered the arrest, may, by some division of for the responsibility which would blunt the edge of individual con- sciences, have connived at the murder. It is almost as probable that the duke was really guilty of treason and was i^ut out of the way to save the good character of others who would be im- plicated if he were brought to trial. It is most probable that The^secret of Sufi'olk knew more of the secret than any other of the lords. Suftblk. The keeper of the privy seal, Adam Moleyns, bishop of Chiches- ter, must have sealed the warrant for the arrest ; and in his con- fession, made shortly before his death, he stated some matters which Suffolk had to disavow, although the name of duke Hum- frey was not mentioned. Yet there is nothing in the history of Yet Suffolk ^ . . never either of these men that would give the least probability to such legally ° _ . , chai'gedwith a charge as this. The commons, when in 1451 ^ they petitioned murder, for sentence of forfeiture against Suffolk, did not go beyond terming him the cause and labourer of the arrest, imprisonment, and final destniction of the duke ; the accusation in its complete form was the work of the triumphant Yorkists long after. On The death the whole, the evidence both of direct statement and silence natural."^ among contemporary writers tends to the belief that Grioucester's death was owing to natural causes, probably to a stroke of paralysis ; his arrest to some design in which all the leading lords were partakers. The charges made against his servants, who were arrested at the same time, were definite enough ; they had conspired to make the duke king of England and Eleanor 1 Eot. Pari. V. 226. Constitutional History. [chap. Charges brought against Gloucester's servants. They are pardoned. Death of cardinal Beaufort. Cobham queen ; they had falsely and traitorously imagined the death and destruction of the king, and had conspired together for the purpose ; they had raised an armed force and set out for Bury S. Edmund's to kill the king \ On the 8th of July Thomas Herbert and four others were tried by a special com- mission, of which Suffolk was the head, and convicted by a Kentish juiy at Deptford ; but a week later they were pardoned by the king; and in the month of October their reputed accom- plices received a similar pardon. \Ye may infer from this that Henry could scarcely have believed the stoiy of his uncle's treason ; but the favours which were afterwards showered on both Suffolk and Moleyns show equally clearly that he did not believe them responsible for the duke's murder. On the I ith of April, six weeks after the death of Gloucester, the cardinal of England passed away ; not, as the great poet has described him, in the pangs of a melodramatic despair ^, but with the same business-like dignity in which for so long he had lived and ruled. As he lay dying in the Wolvesey palace at Win- • Chester he had the funeral service and the mass of requiem solemnised in his presence ; in the evening of the same day he had his will read in the presence of his household, and the following morning confirmed it in an audible voice ; after which he bade farewell to all, and so died ; leaving, after large legacies, ^ RN'mer, si. 178. Thirty-eight of the duke's servants were arrested. On Friday, July 14, five were condemned to the penalties of treason and brought to the oallows. At the last moment Suffolk produced the pardon and they were released ; Gregory, p. 188. A list of forty-two is given by Ellis, Original Letters, 2nd Series, i. 108, 109 ; cf. Leland, Coll. ii. 494. Gregory says that the arrested persons never ' ymagenyd no falseness of the that they were put upon of.' The pardon is granted in consideration of the approaching festival of the Assumption, on which day the pope had granted indulgences to those visiting the king's college at Eton : it is dated July 14, and was no doubt the king's independent act. See Blakman, p. 301- ^ Hall, Chr. p. 210, on the authority of John Baker, a counsellor of the cardinal, gives a last speech, which contains nothing positively unnatural, but much that is improbable. It is asserted that the bulk of the cardinal's wealth fell to Edmund Beaufort, the marquess of Dorset, his nephew, wlio was one of his executors. This does not appear from the will; £4000 is left to the Bastard John of Somerset, and to the king the jewels pledged by the parliament to the cardinal and in his hands at his death. His last loan to the king seems to be one of 2000 marks in 1444; Rymer, xi. 55 : but he had provided 20,000 in 1443. XVIII.] Cardinal Beaufort. 139 the residue of liis great wealth to charity. He had been indeed His wealth, too rich for his own fame ; Heniy when the bishop's executors offered him a sum of £2000 from the residue put them aside, saying, ' My uncle was very dear to me and did much kindness to me whilst he lived ; the Lord reward him. But do ye with his goods as ye are bounden ; I will not take them Henry His political spoke the truth ; Beaufort had been the mainstay of his house ; for fifty years he had held the strings of English policy, and done his best to maintain the welfare and honour of the nation. That he was ambitious, secular, little troubled with scraples, apt to make religious persecution a substitute for religious life and conversation ; that he was imperious, impatient of control, ostentatious and greedy of honour, — these are faults which weigh very lightly against a great politician, if they be all that can be said against him. It must be remembered in favour of Beaufort Character of that he guided the helm of state during, the period in which the tr^tion. English nation tried first the great experiment of self-govern- ment with any approach to success ; that he was merciful in his political enmities, enlightened in his foreign policy ; that he was devotedly faithful and ready to sacrifice his wealth and labour for the king ; that from the moment of his death every- thinof besfan to jjo wronor and went worse and worse until all was lost^. If this result seems to involve a condemnation of his policy, it only serves to enhance the greatness of his powers and fidelity. But his policy, so far as it was a policy of peace and reconciliation, is not condemned by the result. It was not the peace, but the reopening of the strife that led directly to ruin. It is probable that he foresaw some part of the mischief that followed; certainly the words on his tomb, 'tribularer si nescirem misericordias Tuas*,' may be read as expressing a feeling that, ^ Cent. Croyland, ap. Gale, p. 582, 2 Blakman, de Yirtutibus Henrici VI., p. 294. ^ There are among the ordinances of the privy council some good illustra- tions of Beaufort's character. On one occasion it was proposed to appro- priate for the payment of debt some fimd that was already assigned to a similar purpose ; the whole council approved, but the cardinal protested against the deception; 'so by this mean no man hereafter should trust none assignment, whereto he wol in no wyse consent.' The treasurer agreed with the cardinal; Ordinances, v. 216. * Godwin de Praesulibus, p. 232. 140 Constitutional History. [chap. humanly speaking, there was little hope for his country under Henry VI. Suffolk left The death of Gloucester, followed so closely by the death cliicf minis* ter. of the cardinal, left Suffolk, the queen's minister, without a rival; Edmund Beaufort was ordered to undertake the Ueu- tenancy in France and Normandy, thereby increasing the jealousy between him and York^; and under their joint mis- fortune and mismanagement all that remained to England in France, save Calais, was lost. His policy 667. Suffolk was an old and experienced soldier, and if it were of pGciCC* • • • not for the cloud that rests on him in relation to Gloucester's death, might seem entitled to the praise of being a patriotic and sensible politician^. The policy of peace which Beaufort had nursed, had been carried into effect by him; and it was pursued by him when he became the most powerful man at court. It was a bold policy, for it was sure in the long run to ruin its supporter even in the estimation of the class Surrender of which was to gain most by the result^. Suffolk saw that Anjou. England could not retain her hold on France, and he tried by surrendering a part of the conquest to maintain possession of Normandy and Guienne. He knew well how dangerous ^ The duke of York had left Normandy in the autumn of 1445, and the country was governed by commissioners appointed during his absence, untU 1447. According to Whethamstede (i. 160) Henry had reappointed him for five years more, but had at Somerset's instigation cancelled the nomina- tion. In July 1447 York was appointed lieutenant of Ireland (Wars, &c. i. 478), but he still retained the title of lieutenant-governor of France in November 1447. In December 1447 it had been determined to appoint Edmund Beaufort, and he was acting as full lieutenant in May 1 448. See Appendix D to Foedera, pp. 509-538 ; Ordin, vi. go. ^ Suffolk was born in 1396; Dugd. Bar. p. 186. He became a member of the council in 1431 ; Ordin. iv. 108. His wife was Alice, widow of the earl of Salisbury and daugliter of Thomas Chaucer of Ewelme, whose mother was sister to Katharine Swinford. ^ On the 1st of February, 1444, Suffolk's mission was discussed in council ; he said that he had been too intimate with the duke of Orleans and other prisoners to be trusted by the nation, and he was very unwilling to go ; but ths chancellor overruled the objections. Ordinances, vi. 32-35. Accord- ingly, on February 20, the king wrote to Suffolk promising to warrant all that he might do in the way of obtaining peace, and overruling his scruples at undertaking the task; Eymer, xi. 53. This shows that Suffolk was throughout open and straightforward in his behaviour. The council knew what his poliuy was, and was warned of the dangers which ultimately over- whelmed him. XVIII.] Surrender of Maine and Anjou. 141 a part he had undertaken, and openly warned the council of Policy and . impolicy of the results Avhich really followed. He had promised, probably rtie surren- by word of mouth, that, on the completion of the marriage scheme, the remaining places which the English held in Maine and Anjou should be surrendered to king Eene. If by such a sacrifice peace could be obtained it would be cheaply pur- chased ; and it might be, for Charles VII had more than once offered terms that would leave Henry in possession of more than he now retained. But affairs had materially changed; Charles was gaining strength, England was more and more feeling her exhaustion. Anjou and Maine were now the keys of Normandy, no longer the gate by which England could march on France. The project of peace languished, the surrender of Maine was urged more imperiously. The cessa- tion of warfare was maintained only by renewal of short truces, until in March 1448^ the coveted province was actually given up, and then a truce for only two years was granted. The high spirit of Edmund Beaufort chafed against the delays and irritations of diplomacy, and unfortunately his strength, whether of mind or of armaments, was not equal to his spirit. He was made duke of Somerset in March 1448^, and in com- pany with bishop ]\role}Tis commissioned to treat for a perpetual peace. But before the end of the year the French were com- Breach of plaining that the truce was broken : early in 1449 it was really ^^'^^^ broken by the capture of Fougeres by a vassal of Henry ^; ^ The negotiations may be traced in the collections of William of Worcester, published by Stevenson, Wars in France, vol. ii. pp. [634] sq. The final surrender took place March 11; Rymer, xi. 210, 214. ^ Somerset's creation as duke was on March 31, 1448 (not 1447 : see Nicolas, Hist. Peerage, p. 437); Lords' Reports, v. 258, 259. The com- mission to him and Moleyns is dated April 6, 1448. See Stevenson, Wars in France, ii. 577 ; Hardyng, p. 399. ^ Ma.r. 24; Blondel, p. 5. The conduct of Francis L'Arragonois, who broke the truce, with the connivance of SuflFolk and Somerset, as he tried to prove, and possibly with that of Henry, is the subject of a long discus- sion in the letters of the time, Stevenson, Wars in France ; Stow, p. 3S6. The chronicler however (Giles, p, 36) represents the true state of the case when he says that the French were eagerly watching for the first breach of truce in order to overwhelm the English, 'imputantes omnem causam re- bellionis.' See also ^neas Sylvius, opp. p. 440. According to M. de Coufesy (Buchon, xxxv. 133 sq.) Somerset professed himself unable to control the English forces or to restore Fougeres. Constitutional History, [chap. Loss of jNormandy in 1449 and »4So. Unpopi;lar- ity of the court. Suffolk vindicates himself. and in April war began again. Somerset saw all the strong- holds of Normandy slip from his grasp with appalling rapidity : the English ascribed it to treachery, but against strong armies without and a hostile population within, it was impossible to retain them. In May Pont I'Arche was taken; Conches, Gerberoi, Verneuil followed ; in August Lisieux surrendered ; on the 29th of October Kouen. In January 1450 Harfleur and Dieppe fell ; in May the English were defeated in a battle at Formigny, and Bayeux was taken; Caen surrendered on the 23rd of June, Falaise on the lotli of July; on the 12th of August Cherbourg, the last stronghold in Nonnandy. Not content with recovering Normandy, Charles was threatening descent on England, and the Isle of Wight was expecting in- vasion. In the meanwhile England was suffering the first throes of the gi'eat struggle in which her medieval life seems to close. No parliament was held in 1448; the year was occupied in peace negotiations ; nothing is known of the proceedings of the council ; and as the surrender of Maine became known in the countiy, the popularity of the court and of Suffolk waned. As early as May 1447 he had been allowed at his own request to defend his conduct before the council, and the king in the following month had declared that the charges brought against him by public report were mere scandals and that he was guiltless of any real fault ^. On the 2nd of June, 1448, he was made a duke, and although he must have been aware that his policy found no favour with the people, he bore him- self as an innocent man to the last. In February 1449 the parliament met at Westminster ^ and granted a half-tenth. * Hardyng, p. 399. 2 Eot. Pari. V. 447 ; Eymer, xi. 172-174. The duke had heard that he was reported to have acted faithlessl}'- in the matter ; and it had come also to the king's ears ; the duke had desired a hearing, and May 25 was appointed : there were present the chancellor, treasurer, the queen's con- fessor, the dukes of York and Buckingham, loi-ds Cromwell, Sudeley and Say, with some others. The king regai'ded the vindication as complete, declared Suffolk innocent, and ordered the reports to be silenced, issuing letters to that effect on the i8th of June. 2 Rot. Pari. V. 141. It met Feb. 12; John Say was speaker. On the 4th of April it was prorogued to May 7, and on May 30, to June 17, at Winchester. The grants were made April 3 and July 16, the last day of XVIII.] 'Parliamentary Kistory, 143 fifteenth, and continued tunnage and poundage for five years. Parliaments After two prorogations in consequence of the plague, it met in June at "Winchester, and there continued the wool subsidy for four years and renewed the tax on aliens ; the commons attempted also to tax the clergy by granting a subsidy of a noble from each stipendiary priest in consideration of a general pardon. Henry sent the bill to convocation, telling the clergy that it was for them to bestow the subsidy ; if they would grant the noble, he would issue the pardon ^ The clergy accepted the compromise and voted the tax. An urgent appeal for help for Normandy was made by Somerset's agents^; but matters were already too far gone to be helped; still to the last we see the king and council toiling in vain to send over men and munitions. At home too the prospect was becoming very threatening. A second parliament was called in November. War had broken out with Scotland and the earl of Northum- berland had -suffered an alarming defeat ^. The session was opened on the 6th of November, and con- Parliament tinned at Westminster or at Blackfriars, by prorogation until Christmas, when it was again prorogued to the 17th of January*. Little is known of the proceedings during these weeks, but they were probably stormy ; for on the 9th of December bishop Moleyns, who next to the duke of Suffolk was regarded as responsible for the surrender of Maine, resigned the Privy Seal ^. Bishop Lumley of Carlisle, who had been treasurer since 1446, had in October made way for the lord Say and Sele, who immediately became unpopular. The dissatisfaction of the General Ti 1 1 n , -r. -. 1 T disaffection, country would no doubt have resulted in a rebellion, if there had the session ; ib. pp. 142, 143. Security was given for £100,000 ; p. 143. In July the clergy voted a tenth and 6s. 8c?. on chaplains; Wilk. Cone. iii. 556. Another tenth was voted in November, ib. p. 557. ^ Kot. Pari. v. 152, 153 ; 3rd Eeport Dep. Keeper p. 27. 2 Rot. Pari. V. 147. ^ Henry was charged with conniving at the breach of the truce with the Scots, when visiting Durham in 1447; Chr. Giles, p. 35. * Rot. Pari. V. 171. John Popham was speaker. The parliament met at Westminster, and was adjourned at once to Blackfriars, returning Dec. 4, to Westminster. On the 17th it was adjourned to Jan 22 ; and ou March 30 adjourned to Leicester for April 29. It sat until May 17. * Rymer, xi. 255. 144 Constitutional History. [chap. Financial been any one to lead it : the cession of Maine and Normandy- Lad produced a violent reaction against Suffolk; the finances of the country had gone to ruin ; the king's debt, the debt of the nation, had siDce Beaufort's death gone on increasing, and now amounted to £372,000; his ordinary income had sunk to £5000; the household expenses had risen to £24,000^. Stafford, who was growing old, might be expected to give way under the circumstances ; he had been eighteen years in office, and if he had done little good he had done no harm : as soon as the Archbishop parliamentary attack on Suffolk began, he resigned, and arch- Snceior!'^ bishop Kemp, the faithful coadjutor of Beaufort, now a cardinal^, was called again into the chancery, too late however to restore the falling fortunes of his master. Suffolk had not acted cor- dially with Kemp, and the cardinal's return to office was one sign that the duke's influence over the king was already weakened. Obscure 668. The history of the trial and fall of Suffolk, although Suffolk's^ more fully illustrated by documentary evidence, is scarcely less obscure, in its deeper and more secret connexion with the politics of the time, than is that of the arrest and death of G-loucester. Looked at in the light of the parliamentary records, the attack seems to be a spontaneous attempt on the part of the commons to bring to justice one whom they conceived to be a traitorous minister ] and if it were indeed so, it would be the most signal case of proper constitutional action by way of impeachment that had occurred since the days of the Good Parliament. That it was not so is sufficiently proved by the fact, recorded by a strong anti-Lancastrian par- 1 Eot. Pari. V. 183. ^ Kemp was made cardinal, with the title of S. Balbina, by Engenius IV, Dec. 18, 1439 (Panvin. Ep. Paparum. p. 300), and cardinal bishop of S. Rufina July 21, 1452 (Ansf. Sac. i. 123). There is a high panegyric upon him in a letter of Henry VI to the pope on the occasion of his promotion, Beckington, i. 39. It is possible that Kemp had, although attached to Beaufort, opposed himself to the influence of Suffolk. In 1 448, when the see of London was vacant, Henry applied for the appointment of Thomas Kemp, the nephew of the cardinal ; Suffolk, however, procured letters in favour of Marmaduke Lumley, the treasurer, and called the earlier application surreptitious. The pope administered a serious rebuke to the king and appointed Kemp; Beckington, Letters, i. 155 sq. It will be observed that Lumley's resignation of the treasurersliip just preceded the attack on Suff'olk. XVIII.] Fall of Suffolk. 145 tisan, that the commons were urged to the impeachment by Prosecution a member of the council ^ who was a personal enemy of Suffolk, oSfoned and by tlie circumstances of the duke's death, which proved success!^" that bitterer enemies than the commons were secretly at work against him. Yet there is no difficulty in understanding the causes of the great ruin which befel him. The loss of Maine and Anjou had been followed by the loss of great part of Normandy. Maine and Anjou had been surrendered by the policy of Suffolk. Normandy was being lost by the incapacity or ill luck of Somerset. Both were in the closest confidence of the king and queen. It was not easy for the rough and undisciplined politicians of the country to discriminate between the policy of Suffolk and the incapacity or ill luck of Somerset. The easiest interpretation of the phenomena was treason, and Prompted . . , by lord there were not wanting men like lord Cromwell to guide the Cromwell, commons to that conclusion. Cromwell represented possibly a small minority in the council ; possibly he stood alone there ; he was an old servant of Henry, whom the cardinal had been able to keep in his place, and who was personally hostile to Gloucester^. Now that the cardinal and the duke were both gone, he may have envied the rise of a new minister like Suffolk, or he may thus early have been connected with the band of men who later on undertook the overthrow of the dynasty. ^ Lord Cromwell a few da5's before Christmas charged William Taillebois with an attempt to assassinate him at the door of the Star Chamber. Suffolk defended Taillebois, who notwithstanding was sent to the Tower ; ' et postea dominus de Cromwelle reddidit duci Suffolchiae vices suas in malo anno ipsi duci.' During the parliament Cromwell obtained damages for £1000 against Taillebois from a Middlesex jury; and then 'domino de Cromwell secrete laborante dux Suffolchiae per communes in parliament© de alta et grandi proditione appellatus est'; W. Worcester, pp. [766-769]. ^ Cromwell had been, as we have seen, chamberlain to Henry VI and treasurer from 1433 to 1443 ; he became chamberlain again in 1450. It was at the marriage of his niece to Thomas Neville that the quarrel of Egremont and the Nevilles broke out, W. Wore. pp. 770, 771. The duke of Exeter sided with Egrem.ont, and the duke of York with the Nevilles. Cromwell in 1454 exhibited articles in parliament against the duke of Exeter, and no doubt was then in the York interest. He was accused of treason in 1455; and on bad terms with Warwick, the two charging on each other the guilt of the battle of S. Alban's. He died however in 1456. See Paston Letters, i. 293, 344, 345, 576; cf. Ord. vi. 198. VOL. III. L 146 Constitutional History. [chap. Bishop The mischief began during the Christmas holjdajs. Bishop murdered, Moleyns had gone down to Portsmouth to pay the soldiers Jan. 1450. going to France, and was there on the 9th of January^ murdered by the sailors, the soldiers looking on. In his last moments he was heard to say something about the duke of Suffolk, which was understood as a confession of their common delinquency. Suffolk, probably aware that a formal charge would be preferred against him, attempted to anticipate it and, as he had done before the council in Suffolk 1447, to put himself at once on his defence. Accordingly, the charges on the first day of the session, January 22, 1450, he made a him. formal protest before the king and lords. He declared in simple and touching language his services and sacrifices, denied the slander that was publicly current against him in conse- quence of the bishop's supposed confession, and prayed that, if any one would charge him with treason or disloyalty^, he would come forth and make a definite accusation, which Tlie he trusted to be able to rebut. The commons at once took commons ^^andhis up the gauntlet. On the 2 6tli they petitioned that, as he had acknowledged the currency of these infamous reports, he might be put in ward to avoid inconvenient consequences ; on the 27th the lords, acting on the advice of the chief justice, resolved that he should not be arrested until some definite charge was made; on the 28th the commons made the definite General charge, and the duke was sent to the Tower. This first charge treason. was based on the report that he had sold the realm to Charles VII, and had fortified Wallingford castle as headquarters for a confederacy against the independence of England^. Ten days later the first formal and definite impeachment was made ; ^ Gregory, p, 189, 'for his covetysse as hyt was reportyde.' 'Through the procurement of Eicbard duke of York,' Stow, p. 387. 'Et pacem sitiens cum morte recessit atroci/ Chr. Giles, p. 58. 'Inter quos et amicus noster Adam Molines secreti regii signaculi custos et litterarum cultor, amisso capite truncus jacuit ' ; ^neas Sylvius, Opp, p. 445. ^^Ineas had addressed Moleyns as the king's first favourite or next to the first; Epist, 18, p. 514 : in another letter, Epist. 64, he congratulates him on his style. See also Epist. 80. There is a letter of Moleyns to -^Eneas, Epist. 186. 2 Eot. Pari. V. 176. ^ lb. V. 176, 177. 'And also for the dethe of that nobylle prynce the duke of Gloucester'; Gregory, p. 189. XVIII.] Trial of Suffolk. 147 the chancellor having been changed in the meantime^; and First set on the 7 th of February cardinal Kemp, attended by several charges ; • &lso of of the lords, was sent by the king to the commons to hear treason, the charge. This elaborate accusation contained eight counts of high treason ^ and misprision of treason : he had conspired with the king of France to depose Henry and place on the throne his own son John de la Pole as husband of the little heiress of the Beauforts^; he had advised the release of the duke of Orleans, and had conspired with him to urge Charles VII to recover his kingdom ; he had promised the surrender of Anjou and Maine, had betrayed the king's counsel to the French, had disclosed to them the condition of the king's resources, and had by secret dealing with Charles prevented the conclusion of a lasting peace, even boasting of the in- fluence which he possessed in the French court*; he had likewise prevented the sending of reinforcements to the army in France, had estranged the king of Aragon and lost the friendship of Brittany. On the 1 2th of February these articles Referred to ^ . . . the judges, were read and referred to the judges, and the discussion was adjourned at the king's discretion. The delay gave time for a fresh indictment to be drawn up. On the 7th of March the lords resolved that Suffolk should Sccoad set of chsir^Gs* be called on for his answer ; and on the Qtli eighteen additional articles were handed in by the commons. These, Avhich may be regarded as a second and final indictment, chiefly comprised ^ The chancellor resigned Jan. 31 : the charges were brought forward on the 7th of February ; Rot. Pari. v. 177. 2 Kot, Pari. V. 177-179; Hall, Chr. pp. 212, 213; Paston Letters (ed. Gairdner) i. 99-105. ^ The marriage of the two children was celebrated after the arrest ; Rot. Pari. V. 177. * This was possibly a reference to the language which he had used in the Privy Chamber, when attempting to excuse himself from acting as ambassador in 1444; above, p. 140; 'I have had great knowledge among the parties of your adversaries in France,' &c. ; Ord. vi. 33. Here, however, the speech is said to have been made in the Star Chamber, ' He declared openly before the lords of your council here being, that he had his place in the council house of the French king as he had here, and was there as well trusted as he was here, and could remove from the said French king the priviest man of his council if he would'; Rot. Pari. V. 179. 148 Constitutional Ristory. [chap. Charges of malversa- tion. Suffolk asserts his innocence. Compro- luise. ITe does not put himself on his trial, but submits. The king sends hun abroad. charges of maladministration, malversation, misuse of his power and influence with the king, the promotion of unworthy persons, and tlie sacrifice of the English possessions in Normandy by a treacherous compact with the king of France ^. Suffolk was then brought from the Tower and received copies of both the bills. On the 13th he stated his own case in parliament: he denied with scorn the charge that he had or could have planned the king's deposition ; as for the matters of fact contained in the eight articles, the rest of the council were as much resj)onsible as lie ; his words had been perverted to a meaning which they would not bear. The next day the chief justice asked the lords to advise the king ; but the question was again deferred, and it was not until the 17th that the compromise was effected which would, as it was supposed, save the duke and satisfy the commons. All the lords 'thenne beyng in Towne' were called into the king's chamber; Suffolk was admitted and knelt before the king. The chancellor reminded him that he had not put himself on his peerage in regard to the first bill of impeachment, and asked whether he had anything further to say in that matter. The duke replied by a forcible repetition of his denial and protestation of innocence, and then placed himself entirely at the king's disposal, thus not acknowledging any fault but showing himself unwilling to stand a regular trial. The chancellor then declared the king's mind : as to the greater and more heinous charges included in the first bill, the king held Suffolk 'neither declared nor charged'^; as to the second bill the royal intention was to proceed not by way of judgment, but on the ground of the duke's submission : accordingly the king, by his own advice, ' and not reporting him to the advice of his lords, nor by way of judgment, for he is not in the place of judgment,' ordered him to absent himself from the king's dominions for five years from the ist of May folloAving. The lords lodged ' Rot. Pari. V. 179-182. - The expression is obscure, but it seems to signify that the king regarded these charges as prima facie groundless, that he in fact ' ignored ' or threw out the indictment. xvin.] Death of SiiffolJc. 149 a protest against this way of dealing with an accused person, Protest of insisting that the royal act done without their advice and counsel should not be construed to their prejudice in time to come; this protest, however, which was presented by the viscount of Beaumont, one of Henry's faithful friends, was itself part of the scheme of compromise ^. It was clear that Suffolk could not be tried formally unless the king and council were prepared to face the storm of popular indignation which, however undeservedh^, had been aroused against the policy of peace; nor, if the matter were allowed to run its course Possible . clue to this m the parhament, could the kmg have there interfered to proceeding, rescue him from the uncertain issue ^. He had therefore de- clined to be tried by his peers, and sacrificed himself to save the king and the council, or that part of it which followed the same policy. He had six weeks given him to prepare for his departure ; after settling his affairs and writing a beautiful letter of farewell to his infant son, he sailed on the 30th of April. On the 2nd of May he was beheaded by the crew Suffolk mXirdered a of a ship which had been waiting to intercept him ^. Ther€ sea. is no evidence to determine whether the act was prompted by the vindictiveness of political rivalry or by the desire of vengeance for the death of Gloucester, or was the mere result of the hatred felt by the sailors of the fleet, which had been fatal to bishop Moleyns, or was part of a concerted attempt against the dynasty*. Anyhow it robbed Henry of his most ^ Rot. Pari. V. 182, 183 ; of. Paston Letters, i. 115. Mr. Gairdner's new edition of these letters, and his prefaces, which furnish an absolutely invaluable sketch of the history of this period, leave scarcely anything to be added, and comparatively little to be cleared up. ^ The proceedings at the councils preliminary to the Leicester parlia- ment of 1426 may be compared with this : so long as the matter was before coimcil a compromise might be effected ; if parliament were appealed to, such justice must be done as parliament willed. See above, p. 102 ; and Ordinances, iii. 185, 186. ^ The letter is printed among the Paston Letters, ed. Gairdner, i. 12T, 122 ; and the account of the duke's death is given in the same collection, vol. i. pp. 124. 126. * ^neas Sylvius (0pp. p. 442), representing perhaps foreign opinion, regards the death of Sulfolk as connected with the attempt of the duke of York to change the government : his account of Suffolk is hostile ; ' qui leges pro suo arbitratu et populis in principibus dixit. Suppressit quos odivit et iterum quos amavit erexit.' 150 Constitutional Ristory. [chap. Act of Re sumption, faithful and skilful adviser, and left him for a time dependent on the counsel of the aged archbishop of York. Parliament The parliament, which met aofain at Leicester on the 2Qth at Leicester, of April and granted a graduated tax on incomes arising from lands and offices, completed its work by making a special provision for the royal household ; the fee farms of the crown were to be applied to this purpose to the amount of .£5522 OS. "jd. ; and the revenues of the duchy of Lancaster, so far as they were not already appropriated, were devoted to the same object ^ A general act of resumption was passed, by which all the grants made since the king's accession were annulled ; a great number however of exceptions and reserv- ations were made, and the act became a precedent which many subsequent parliaments thought it wise to follow ^. Im- mediately after the death of the duke of Suffolk the rebellion of Cade and the Kentish men broke out. Helpless- ^69. This event, which more than anything else in Henry's Henn^ after reign proves his utter incapacity for government, serves also death.^'^ to show how helpless the removal of Suffolk had left him. Of the two men who would most naturally have taken the lead in council, the duke of Somerset was in France, the duke of York was in Ireland. The lord Say and Sele, who was one of the special objects of popular hatred, was the king's treasurer. Cardinal Kemp the chancellor was scarcely fitter than Henry himself to deal with an armed mob. The con- dition of the country would have tasked much stronger and more unscrupulous men ^. The nation was exhausted by tax- 1 Eot. Pari. V. 1 72-1 76. lb. V. 183-200. Whethamstede remarks that the necessity for these acts was caused by the king's extravagant liberality ; the politicians in parliament remembered 'quo raodo pauperiem regis subsequitur spoli- atio plebis'; i. 249. Hardyng says that taxes and dymes ceased in con- sequence of the relief ; p. 401. ' The kyng hath sumwhat graanted to have the resompsion agayne in summe, but nat in alle'; J. Crane to J. Paston, May 6, 1450; Paston Letters, i. 127; Arnold's Chronicle, pp. 179-186. 3 Some changes were made at this time ; lord Beaumont is said to have been made chamberlain, and lord Elvers (Richard Wydville) constable; Paston Letters (May 13), i. 128, If this were done, changes were made soon after, for in July lord Beauchamp was treasurer (in Say's place) and lord Cromwell chamberlain ; W. Wore. p. 769. XVIII.] Cade's Rebellion. ation, impatient of peace, thoroughly imbued with mistrust. ^JlJ^j^j Cade and the party which used him — for there were not wanting Cade, signs and symptoms of much more crafty guidance — based their complaints and demands on the existence of grievances, political, constitutional and local, which could not be gain- sayed^. They united in one comprehensive manifesto the loss of Normandy, the promotion of favourites, the exclusion of the lords of the blood royal from council, the interferences with county elections, and the peculiar oppressions of the commons of Kent. The leader took the name of John Mortimer, and declared himself to be cousin of the duke of York. He found means to collect round him, from Kent, Surrey and Sussex, a force to which he gave a semblance of order and discipline, and which was arranged very much as it would have been if called on to serve under the regular local administration. He proclaimed that he came to correct Proclama- , tion by the public abuses and remove evil counsellors. On the ist of rebels. ^ ' It was for the weal of him our sovereign lord and of all the realm and for to destroy the traitors being about him, with other diverse points that they would see that it were in short time amended ' ; Gregory, p. 190. * This attempt was both honourable to God and tlie king and also profitable to the commonwealth ; promising them that if either by force or policy they might once take the king, the queen, and other their counsellors into their hands and governance, that they would honourably entreat the king and so sharply handle his counsellors that neither fifteens should hereafter be demanded, nor once any impositions or tax should be spoken of ; Hall, p. 220. ' The}' chesse them a captayne, the whyche captayne compellyd alle the gentellys to arysse whythe them'; Gregory, p. 190. Stow, pp. 388, 399, gives the manifesto of Cade in fifteen articles of complaiut and five of redress. The complaints include the threatened devastation of Kent in revenge for Sufi'olk's death, the heavy taxation, the exclusion of the lords of the royal blood from the king's presence and the promotion of upstarts, the abuse of purveyance, the false indictments by the king's servants who coveted the estates of the accused, false claims to land promoted by the king's servants, the treasonable loss of France, the expense of suing for the allowance of the barons of the Cinque ports, extoi-tion of sheriS's in farming ofl&ces, excessive fines and amercements of the green wax, the usurpations of the court of Dover castle, undue interference with elections, illegal appoint- ment of collectors of taxes, and the burden of attending the county court. The articles demanded are (i) a resumption of demesne, (2) the banishment of the Sufi'olk party and the return of the duke of York to court, (3) the vindication of the fame of duke Humfrey; (4) Sufiblk and bis party are made answerable for the death of Gloucester, cardinal Beaufort, and the duke of Warwick, as well as for the loss of France; the fifth article is a demand for the abolition of the abuses noted in the complaint. 152 Co7istitutional Kutory. [chap. Encounter June he encamped at Blackheath. On the 6th Henry reached of the royal r\ ^ ^ • -t iT-r>il forces with London. On the iith, with 20,000 men, he marched on i31ack- heath, from whence Cade had retreated^; on the i8th a part of the royal force was cut to pieces at Sevenoaks : but the spirit of mutiny broke out in the rest^j tlie king was obliged to send the treasurer to tlie Tower, either to appease the Henry mutineers or to save the minister. Deserted by his army Kwiilworth. the unhappy king retired to Kenilworth ; the mayor and citizens of London offered to stand by him, but Henry had no confidence either in them or in himself. On his departure London rebels returned; Cade entered London on the 3rd of July, and on the 4th the treasurer was seized and beheaded. On the 5th, in a battle on London bridge, tlie rebels were de- feated and the city freed from their presence. The chancellor then offered pardons already sealed to Cade and his followers. The pardons were accepted ; the rebels dispersed ; Cade to plunder and ravage, the more honest followers to their own homes. His subsequent conduct was not such as to justify his pardon, and no pardon could have a prospective validity He is killed to cover his new crimes. A reward^ was set on his head, in Kent. and soon after he was killed in Kent. The disturbances did not end here. Anarchy was spreading from the moment that Henry was seen to be incompetent. In Wiltshire bishop Other dis- Ascoucfh of Salisbury had been murdered in June. The mal- turbances. ^ _ contents in Kent elected a new captain after Cade's death ; but the government speedily recovered from the panic into which they had fallen, and the severe executions which fol- lowed attested the sincerity of the alarm ^ At Blackheath the king ordered all his liege men should 'avoid the field'; whereupon the rebel army dispersed. The next day he went in pursuit to Greenwich, and Stafford was killed at Sevenoaks ; the king slept at Greenwich but the lords went home soon after. Then, according to Gregory, another captain, who had taken the name of the former, led his force up to Blackheath and forced their way into Lon.lon, where, on the 4th of July, they beheaded lord Say. Gregory, pp. 192, 193. ^ Chron. ed. Giles, p. 40; Fabyan, p. 623. ' Rvmer, xi. -275. * On Cade's rebellion see Gairdner, preface to Paston Letters, vol. i. pp. lii.-lvi. sq.; and Sussex Archaeological Collections, vols, xviii, xix. XVIII.] Richard of York. 670. It is now that Richard duke of York first comes The Duke of York. prominently on the stage. He was about forty years of age, and had been for fifteen years in jDublic employment as regent of France or lieutenant of Ireland^. In both capacities he had shown good ability; and in France especially his ad- ministration, which came to an end shortly after Henry's marriage and before the loss of Normandy, had been fairly successful. Whatever credit it really deserved, it shone con- Rivalry spicuously in contrast with the luckless administration of him and Somerset ; and York's popularity was in some measure the result of the mistrust inspired by his rival. For the two dukes were rivals in more ways than one. They were the nearest kinsmen of the king ; tiie male line of Edward III had run into two branches ; of the posterity of John of Gaunt, Somerset, after the king himself, was the male representative, the duke of York represented the descendants of Edmund of Lanffley. It is true that York, as representing the Mortimers, Uncertainty ^ . ' , ^ ^ . of succession and throujxh them the line of Lionel of Clarence, had a prior to the . ... throne, claim to the crown, and, in case of the king dying childless, the question of the rights of that line would have to be decided. But precedent was by no means clear ; and the claim, ascribed to Henry IV, to succeed as heir of the house of Lancaster, complicated a question which was obscure enough already. If the inheritance after Henry VI belonged to the male heir of Edward III, it would be difficult to set aside Somerset ; if it belonged to the heir general of John of Gaunt, the lady Margaret was not without real pretensions; but the Beau- forts had no claim through Henry IV and the elder house of Lancaster, and, although their legitimation by pope and par- liament was complete, they were excluded from the succession by Henry IV so far as he had power to do it. If on the other ^ ' Regent was of all that longed to the kyng. And kept full well Normandy in specjall, But Fraunce was gone afore in generall ; And home he came at seven yere ende agajme With mekell love of the lande certayne.' Hardyng. p. 399. He had been a good and popular ruler in Ireland, where the house of Mortimer had long cultivated popularity ; ib. The duke's mission to Ireland was regarded by his friends as an exile ; Gregory, pp. 189, 195. 154 Constitutional History. [chap. Questions of hand the right of an heiress to transmit her claim to the crown succession. to her descendants were admitted, York had no doubt the prior right: but no such case had yet occurred in English history ^ Henry IV had entailed the crown on his sons to the exclusion of heiresses ; the recognition of the earl of March as heir of Eichard II in 1385 had little more significance than S'yS'^'"' the recognition of Arthur of Brittany by Richard I. If then the Beauforts were excluded, York might claim as heir of Edmund of Langley ; if the claims of the line of Clarence were admitted he might inherit as heir of Lionel. But so long as the house of Lancaster was on the throne, it was a delicate matter to urge a claim which, on the only princi2)le on which it could be urged, was better than their own. And the conduct of the IMortimers had been such as to lead to the conclusion Position of that their claim would not be urged. Edmund Mortimer, timers. the ally of Owen Glendower, had indeed broached the rights of his nephews, and Eichard of Cambridge had conspired to place his brother-in-law the young earl of March on the throne ; the name of Mortimer had twice been mingled with deeds of treason and insurrection ; but the heads of the house had been loyal and faithful, even to self-sacrifice. The last earl had been on the closest terms of friendship with Henry V, and Eichard of York himself had been educated and promoted by the Lancastrian kings, as if they had no suspicion that he would ever think of supplanting them. But now that Henry had been married for five years without issue, the question of the succession could not fail to be constantly before the Position of minds of both competitors. With Somerset it was more than Somerset. _ ^ a question of succession, it was a question of existence. The house of York would not be likely to tolerate the continued influence of the bastard line ; personal emulation added another element to the causes of mutual mistrust ; for Somerset had shown a signal contempt for the first military aspirations of duke Eichard, and his own early brilliancy had paled before ^ The right of Henry II, as successor of Henry I, is the only similar case, and in it there were so many points of difference as to destroy any real analogy. Richard of YorJc. 155 the more substantial glories of his rival, until it was entirely Popularity forgotten in the loss of uSTormandy. Now that Somerset and of York, the policy which he supported had become odious, the nation looked kindly on the one sound administrator left, and the more so perhaps when they saw in him the rightful heir to the throne. Yet Richard of York had no such claim as Henry IV to His consti- . . , tutional the character of a constitutional deliverer. He had none of position, the great traditions which, however illusory, had hung round the early Lancasters, earl Thomas and earl Henry. His father had suffered death as a traitor, and it was only by an act of impolitic equity that his blood had escaped the taint of legal corruption. His uncle, under the titles of Rutland, Aumale, and York, had been connected with every conspiracy that was framed against Henry IV, and had been more than once imprisoned. His gi-andfather Edmund, the most worthless of the brood of Edward III, had been little else than a self-indulgent courtier. ^ Any prince moreover who should come to the throne as the mere heir of Richard II would be likely to claim it free from all the constitutional restrictions on prerogative, which had been accepted and acted on by the three Henries. Nor, finally, was the kingdom at all in the condition to need a deliverer like Henry IV. It was exhausted, impoverished, and in disorder, but it was not unconstitutionally ruled. It was weakness, not t}Tanny, that lay at the root of the national distress. The administration of justice was sound, but the Weakness of pp... • frovern- power 01 eniorcmg justice was to some extent wantmg; theruent. constant occurrence of local riots, the predatory bands which kept whole districts in alarm, the difficulty of collecting taxes, the general excitement of popular feeling arising on the national disgrace abroad, all called for a strong administration. Henry himself connived at no injustice ; Somerset's incapacity was shown only by his misadventures abroad ; and there is no reason to suppose that he wished to play the despot at home. But York's position was too full of danger to the crown to make it possible to lodge the administration in his hands ; whilst in his own estimation it was such as entitled him to nothing lower 156 Constitutional History. [chap. ofToraerset ^^^^ P^^^^ ^^"^^ council. It is not for the and York, historian to attempt too minutely to adjust the balance between the two parties on moral or political grounds ; neither York nor Somerset was a monster of vice nor a paragon of virtue ; neither was endowed with much political skill or showed para- mount ability in administration : the constitutional position indeed of Somerset was more defensible than that of York ; but Somerset was thoroughly unpopular, and York, from that unpopularity, gained the character of a popular champion, the representative of legitimate succession and administrative reform . cmnirfrom "^^^^ ^^^^^ Suffolk had left Henry without a minister, and Ywrfrom^ Cade's rebellion had proved not only that he could not act for Ireland. himself, but that there were troubles ahead which might task a strong man. York was th^ed of Ireland, where his friends thought him an exile, Somerset had let France slip out of his hands. It was a race who should come home first and take the kingdom in hand. York seems to have reached England before his rival, but Somerset had a strong ally in the queen, and he was not far be- hind. The capture of Cherbourg on the 1 2th of August set him free from all duty in Normandy; on the iith of September he yisjt o(To^k was made High Constable of England \ Before this the duke to the king. * ^ ^ o of York had visited the king. His return was not unexpected, and measures had been taken, justified no doubt by the belief that he was implicated in Cade's rebellion, to intercept him SSiii?™ ^"^^ prevent him from collecting his friends 2. Notwith- standing these precautions he forced his way to London, made his formal complaint to the king and obtained an apology for the mistrust that had been shown him, with a declaration of the king's confidence in him^. After a further remonstrance, ^ Rymer, xi. 276. ^ Chr. Giles, p. 42. See the duke's letter referred to in the following note. ^ The bill of complaints presented to Henry is given in Stow, pp. 353, 354. The duke complains of the attacks on himself and his servants, and of a proposal to indict him for treason ; the king in reply tells him how much appearances have been against him, how he was implicated in the murder of Moleyns and commonly reputed to be hostile to Henry himself; concluding however with the admission that he regarded him as his faithful XVIII.] First interference of York. 157 in which he embodied some of the complaints of the rebels He obtain;* . from Heiir.r and urged the legal trial of persons indicted, a complaint a promise to which the king met with a promise to appoint a sad and new^council; substantial council, of which the duke was to be a member \ liamenf is he urged the calling of a new parliament ; and on the 5th of September a summons was issued convening it on llovember 6. He then went to Fotheringay, whence he conducted negotiations with his friends, and attempted to influence the elections in the counties'^. His chief allies were the Nevilles, the earl of Salisbury his brother-in-law, and the earl of Warwick his nephew ; the duke of Norfolk ^ also was inclined to support him in his attempt to make himself influential in the council. How far his designs really went it is impossible to say : '^^^^^^ no doubt the court believed that he was an accomplice of Henry and ^ the court as Cade, who had asserted his claim to be one of the chief coun- to the duke's ulterior cillors ; he too was the only person who had had anything designs, to gain by the death of Gloucester and Suffolk ; but there was little evidence as to the latter crime, and he was not even suspected of conniving at the former. He was himself throughout his career very cautious in stating any claims of his own. At this moment he appeared only as the guardian of order and demanded reform of abuses in the govern- ment. subject. These documents are placed by Stow under the year 1452, but they belong, as Mr. Gairdner says (Past. Lett. i. p. Ix), to 1450. ^ The remonstrance is in Stow, p. 385, and among the Paston Letters, i. 153 ; the answer is given (after Holinshed) by Mr. Gc^irdner ; ib. introd. p. Ixii. The duke tells the king that there is a common complaint that justice is not duly ministered to offenders, especially those indicted for treason ; promises to aid the king in remedying this, and urges that the king's officers maybe instructed to arrest and commit to the Tower all such persons as are so noised or indicted, of whatever estate, degree, or condition soever they be, there to abide without bail until they can be tried in court of law. Henry declined to take the advice of the duke without consulting the council. 2 W. Wore. p. 769. The dukes of York and Norfolk chose the persons who were to be elected in Norfolk ; Paston Letters, i, 160, 161, 162. 3 John Mowbray succeeded his father in 1432 and was confirmed in the dukedom in 1444. His mother, Katharine Neville, was sister t ^ • authority, taxation, the parliament was more liberal; the power of ordain- ing relaxations of the statutes of the staple or of provisors was formally entrusted to the king and council^; they were watched, and when the result was bad were requested to abstain from or suspend proceedings. Financial business was also expressly en- Financial trusted to them, almost from the beginning of the Lancastrian reigns ; a fact which, while it shows the confidence felt by the nation in the honesty of the king and his ministers, proves un- mistakeably the great difficulty of obtaining supplies, the poverty of the crown, and the scarcity of money. To go through the Variety of particular expedients adopted by the council itself would be to expedients, write the whole financial history of the time ; it was by the advice of the council that the king was able to borrow money by writs of privy seal ^ ; more than once the members con- tributed gifts or loans from their private purses to meet an emergency or gave personal security, or wrote letters of per- sonal application to lords or merchants^. In the most important junctures, however, they received power from parliament, either to stop the outgoings of money ^ or to give security for the large loans by which the accruing taxes were anticipated. In the year 142 1 the lords of the council were empowered by par- liament to give security for the king's debts incurred in the proposed expedition to France". Up to this time the loans had generally been obtained by assigning to the creditor ^ 31 Hen. VI, c, 2 ; Statutes, ii. 361, 362. The court of Star Chamber, as the judicature of the council in special cases, was organised by the Act 3 Hen. VII. c. i, which appointed the chancellor, treasurer, privy seal, a bishop, a lord temporal of the council, and the two chief justices, as judges. The privy councillors however retained their places : hence the dispute whether this was a new court or an old one ; Coke, 4 Inst. p. 61. ^ Rot. Pari. iii. 428, 491. ^ Ordinances, ii. 31, 280, 281. * As in 1400, see above, p. 27; Ordinances, i. 104, 105: in 1425, ib. iii. 167. ^ See Ordinances, i. 200 sq. (1403) ; 343, 347 (1410). ^ Ordinances, iii. 348. ' Rot. Pari. iv. 130. ^54 Constitutional History. [chap. Coiincil empowered to give seciirity for loans. Petitions heard in council. Variety of forms of petition. Correspond- ence of council. certain portions of the revenue ^ ; thus bishop Beaufort's great loans had been recovered by him from the customs ^ ; some- times the credit of the lords was pledged, as in 1419^. From 142 1, however, the more prudent practice was followed with some regularity ; the sums for which the council were author- ised to give security increased from .£20,000 in 1425^ to £40,000 in 1426, £24,000 in 1427 ^ £50,000 in 1429 and 1431 ^ 100,000 marks in 1433^, and £100,000 in 1435, I437> ^4395 1442, and 1447^. After the death of cardinal Beaufort these acts of security disappear and other expedients were adopted, which illustrate both the exigences of the court and the waning confidence placed by the country in the privy council. The office of the council in hearing petitions addressed to the king continues during the period before us much the same as it had been under Edward III and Richard ; the chamberlain being the officer to whose care such documents were intrusted. The jealousy of the commons was not aroused by the quasi- judicial character of the proceedings, as it was against the sum- mons by letter of privy seal, and the writ of subpoena. The diversity of petitions which appear on the rolls of parliament, variously addressed to the king, the lords, the commons, the king and the lords, the lords and the commons, or the council, must have given employment to a large class of lawj^ers, whose action in the parliament itself was occasionally deprecated. It could only be after much urgency that such petitions reached either king or council. Nor was the correspondence of the council at all confined to petitions and their answers ; letters, reports from every department of state, and applications for money were addressed to them as commonly and as freely as to the king himself^. ^ Kot. Pari. iv. 95, 96 ; Ordinances, ii. 170. - ' 2 lb. iv. Ill, 132, 210, 275, &c., 496. 3 lb. iv. 95, 96, 117 ; and in 1434, Ordinances, iv. 202. So too in 1423 the feoffees of the duchy of Lancaster lent the king 000. on the personal security of the lords of the council ; Ordinances, iii. 135. * Eot. Pari. iv. 277. ^ lb. iv, 300, 317. ^ lb. iv. 339, 374. ' lb. iv. 426. ^ lb. iv. 482, 504; V. 7, 39, 135. ® On the minute points of practice in matters of petitions, see besides the Rolls of Parliament, passim, and the Proceedings of the Privy Council, the XVIII.] The Great Council. It is hardly possible to specify particularly the less definite Large share functions of the council ; they are coextensive on the one hand council in with royal prerogative, all exercise of which was a matter for business, advice in this assembly; every sort of ordinance, pardon, licence, and the like, which the king could authorise, was passed through the council ; and where on the other hand, special powers were, as we have seen, vested in the king by "parliament, they were exercised with the advice of the council. Besides its relation to the king and the parliament, the privy Relation of council had a direct relation to the great councils which were councilYo often called by the Lancastrian kings on occasions on which it councils.* was not necessary or desireable to call a parliament. These great councils, the constitution of which was very indefinite, were essentially deliberative rather than executive, but they very often appear rather as enlarged and ' afforced ' sessions of the privy council, than as separate assemblies. It is probable that the theory which gives to all the peers of the realm the right of approaching the king with advice was thus reduced to practice ; and that, as volunteer advisers, any of the lords who chose might occasionally attend the council. But the more formal sessions of the great council were attended by persons sum- moned by writs of privy seal, sometimes in large numbers^; and thus was formed an assembly of notables whose advice, though welcome, was not conclusive. As these assemblies had no regular Loose consti- ..... 1 • ,1 T . • • 1 tution of the constitution or place in the parliamentary* system, it is only great now and then that a record of their proceedings has been pre- served. They may, however, on all important occasions of their sitting, be regarded either as extra-parliamentary sessions of the house of lords or as enlarged meetings of the royal council. In both characters they are found acting, as we have seen, iji questions of the regency after the death of Henry VI, in the dis- putes between Beaufort and Gloucester, and in the preliminary remarks of Sir Harris Nicolas in the prefaces to the latter work ; i. p. xxv ; ii. pp. xii. xxxi ; vi. pp. xc sq. ^ See for example the list of persons summoned in 1401, Ordinances, i. If 5 sq. ; and others, ib. 179, 180 : ii. 73, 80, 85 ; iii. 322 ; iv. 191 ; v. 237, 238; vi. 163, 206, &c. Most of the great councils here indicated have teen noticed already. 2^6 Constitutional Ridory, [chap. work of parliament, as had been usual before parliament became a full representation of the three estates. Relations 691. The relations of the council to the king and the parlia- crownTnd^^ ment had thus gained definiteness and recognition. Scarcely raentf^^^^ less was this the case with the direct relations between the crown and the parliament. The period before us witnessed some very important exemplifications of the matured action of The house the constitution in this respect also. The house of lords, for so the baronage may be now called, underwent under the Lancas- trian kings none but personal changes, and such formal modifi- cations as the institution of marquessates and viscounties ; their powers remain the same as before, and in matters where they attempt a separate action, as for instance in the arrangement of the regency or protectorate, their action, which is in itself as much the action of the great council as of the baronage eo nomine^ is generally confirmed by an act of the whole parliament. Such minor particulars as are worth recording may be noted in an- other chapter, in which the antiquities of parliament may be examined in regular order. The history of the house of com- mons, on the other hand, furnishes some valuable illustrations Questions of constitutional practice. These illustrations, many of which house^of have been noted already, and many of which must be recapitu- commons. j^^^^^ again, may be for our present purpose arranged in their natural order under the heads of organisation of the house of commons, including election, privilege, freedom of conference and freedom of debate, and the powers of the house of commons as a part of the collective parliament, exercised in general de- liberation, legislative action, taxation, and control of the national administration. County The regulation of the county elections with a view to securing not merely a fair representation but the choice of competent counsellors for the national senate, was a point upon which some consideration had been spent under Edward III, whom we have seen rejecting all propositions made for limiting the electoral body and diminishing the powers of the old county courts \ 1 Vol. ii. pp. 425, 433. XVIII.] Electoral Rights. Much lealousy of the right of the full county court to elect had Mainten- • / 1 • 1, -.. ^nce of the been evinced on more than one occasion; Edwards ordinance right of the against the choice of lawyers had remained a dead letter ^ ; to elect Richard had been obliged to withdraw from his writs in 1388 the shire : the words which directed the election of persons who had taken no part in the recent quarrels^; his interference in the elections of 1397 was one of the grounds of his deposition^ and Henry IV had been taken to task for excluding lawyers from the parlia- ment of Coventry in 1404*. Yet there can be little doubt that the right, however jealously watched, was sparingly exercised ; that, under the influence of the crown or of the gTcat lords,, the evaded by sherififs often returned their own nominees; and that neither or great men. the composition of the county court, the regularity of its pro- ceedings, nor the way of ascertaining its decisions, was very de- finitely fixed. Sometimes a few great men settled the elections, sometimes a noisy crowd failed to arrive at any definite choice, sometimes the sheriff returned whom he pleased. It was to Regulatloibs remedy this uncertainty that Henry IV in 1 406 enacted on the ?4o6. ^ ^ petition of the commons that, in the first county court held after the reception of the writ, proclamation should be made of the day and place of parliament, and that all persons present, whether suitors duly summoned for the purpose or others, should attend the election ; they should then proceed to the election freely and indifferently, notwithstanding any request or command to the contrary, and the names of the persons chosen should be written in an indenture under the seals of the persons choosing them : this indenture should be tacked to the writ and considered to be the sheriff's return^. This act, so far as the electoral body was concerned, only declared the existing custom ; but the notice, the prohibition of undue influence and the institution of the indenture, took from the sheriff all opportunity of making a false return. An act of 14 10 vested in the justices of assize Penalties for the power of inquiring into the returns, fining the sheriffs in thementof sum of £100 where the law had been broken, and condemning 1 Vol. ii. p. 425. 2 Y(A. ii. p. 479. ' Vol. ii. p. 504. * Above, p. 46. 5 7 Hen. IV, c. 15 ; Stat. ii. 156. VOL. III. S 258 Constitutional History, [chap. itesidents to the members unduly returned to forfeit their wages ^. The first be clioseii. parliament of Henry V restricted both the electoral vote and the choice of the electors to residents within the county, city, or borough for which they were to elect members^. In 1427 the effect of the act of 1406 was so far modified as to allow the accused sheriffs and knights to make answer and traverse before any justices of assize, so that they should not be fined unless Forty they had been duly convicted^. Three years afterwards, in the freeholders eighth year of Henry VI, was passed the restrictive act which, in consequence of the tumults made in the county courts 'by gre^t attendance of people of small substance and no value, whereof every of them pretended a voice equivalent, as to such elections, with the most worthy knights and squires resident,' established the rule that only resident persons pos- * sessed of a freehold worth forty shillings a year should be allowed to vote, and that the majority of such votes should decide the Preeholdto election ^ In 1432 it was ordered that the qualifying freehold the county, should be within the county ^. These regulations received fur- ther authority by an act of the twenty-third year of the same kirg, which, after recounting several abuses that had recently revived, gave minute rules for the enforcement of these and Knights, not the preceding statutes, and prescribed that the knights hencor be^chosen^ forth to be chosen should be notable knights, esquires, or gentle- men able to be knights, and not of the degree of yeoman or under®. The restriction of the electoral franchise to the class which was qualified to serve on juries commended itself to moderate politicians of the fifteenth century. There is no evidence to show that the allegations of the statute with re- spect to the disorders of the county court are untrue. But the history of the particular years in which the changes were made throws no light upon the special circumstances that called for legislation, and what is more curious, the acts seem to have produced no change whatever in the character or standing of the persons returned ; they were all, however, passed at the » II Hen. IV, c. i ; Stat. ii. 162. ^ j ^g^^ j . gt^t. ii. 170. 3 6 Hen. VI, c. 4 ; Stat. ii. 235. * 8 Hen. VI, c. 7; Stat. ii. 243. ^ 10 Hen. VI, c. 2 ; Stat. ii. 273. * 23 Hen. VI, c. 14; Stat. ii. 340 sq. XVIII.] Freedom of Speech. 259 request of the commons and in orderlj* times. Henry Y had Result of not the will, and the council of Henry VI had not the power, changes, to reject a proposal of amended practice in favour of an ill- defined and abused prescription. The key to the question is probably to be found in the social changes which had been at work since the days of Edward III, and which belong to another part of our subject. "We have seen how during the struggle of parties in the latter years of Henry VI the forms of election were evaded and dispensed with. 692. Next to purity of election the great requisite of the Freedona of national council was freedom of action ; and this, whether ex- parliament, emplified in the maintenance of the privilege of members, of under the IjciTicftst©r the right of conference with the lords, of the freedom of the kuigs. Speaker, or of freedom of debate, was sufficiently strengthened by practice under the three Henries. The most signal examples have been noticed already ; the case of the speaker Thorpe being the most important instance of disputed privilege^, and the discussions of Hemy IV with Savage and Chaucer the most significant occasions on which the privilege of the Speaker was asserted". The right of conference with the lords, which had been conceded as a matter of grace by Edward III and Richard II, was claimed from and allowed by Henry IV, under protest, in. 1402 ^ and 1404*; in 1407 the king was obliged to concede the whole question so far as money grants were concerned. The last occasion secured to the two houses perfect freedom of debate, and deserves special notice. Henry IV, no doubt instructed by his parliamentary experi- l^ie^uicrease ence as duke of Lancaster, had more than once shown irritation m the at the conduct of the commons, and they in return had been somewhat tedious. In 140 1 they had requested that they might have good advice and deliberation without being caUed upon suddenly to answer on the most important matters at the end of the parliament, as had been usual. The king was affronted at the request, and commissioned the earl of "Worcester to dis- own any such subtlety as was imputed to him. A day or two * Above, p. 164. 2 Above, pp. 29, 67. ^ Kot. Pari, iii. 486 ; above, p. 37. * lb. iii. 523 ; above, p. 42. S 2 26o Constitutional History. [chap. wdmLes ^^^^^ ^^^^ begged the king not to listen to any report of their not to proceedings before they themselves informed him of them ; and interfere in . ^ deUbera- Henry acquiesced ^ In 1407 however, in the parliament of Gloucester, the king, without reference to the commons, inquired of the lords what aid was required for the exigences of the moment, and, having received their answer, sent for a certain number of the commons to hear and report the opinion of the lords. Twelve members were sent, and their report greatly disturbed the house ; the king saw fit to recall the impolitic measure and to recognise the rule that on money grants he should receive the determination of the two houses by the Money mouth of the speaker of the commons-. The leaving of the grants to be 1 . . . . „ , declared by determination 01 the money grant to that estate which being ■ collectively the richest was individually the poorest of the three was consonant to common sense ; where taxation fell on all in the same proportion, the commons might safely be trusted not to vote too much : sparing their own pockets, they spared those of the lords. But the importance of the event is not confined to the points thus illustrated ; it contains a full recognition of freedom of deliberation. Right of the The right of the commons to consider and debate on every debate all matter of public interest was secured to them by the recognition public of their freedom of deliberation ; for although in words the king interest. acknowledged only their right to ' commune on the state of the realm and the necessary remedies,' there was no question of foreign policy or domestic administration that might not be brought under that head. The kings moreover, in the old idea of involving the third estate in a common responsibility with themselves for all national designs, did not hesitate to lay all sorts of business before them; and the commons, as before, were inclined to hang back rather than rashly to approach matters in which they saw they might have little influence and incur much blame. The care taken by Henry Y in preparing for his French war is an abundant illustration of this ^ ; but many other ex- amples may be found. The petitions on LoUardy show that even the clergy were not jealous of the commons when they were * Eot. Pari. iii. 455, 456. ^ lb. iii. 609 ; see above, p. 61. 2 Above, pp. 82-85. XVITI.] Freedom of Delate. 261 ranged on the side of orthodoxy; the closing of the gi-eat schism Discussion was a matter on which the chancellor dilated in his opening politics. speech and on which the commons of their own accord urged the king to labour ^. The treaty between Henry V and Sigis- mund in 1 4 1 6 was read before the commons as well as the lords, and by their common advice and assent, in the parliament and by authority of the same, ratified, approved, and confirmed^. The treaty of Troyes contained a provision that without ^^^^^^^y^^f consent of the three estates of the two kingdoms peace should Troyes. not be made with the dauphin ; in 1446 the commons joined in the act by which the king was released from that obligation ^. Nor was any great reluctance felt to allow the commons to touch the most delicate questions that came before the council : in 1426 the speaker of the commons was bold enough to express to the duke of Bedford their sorrow for the quarrels which had On the / _ quarrels of taken place between the great lords, referring unquestionably tiie lords, to Beaufort and Gloucester*; in 1427 they petitioned the king to intercede with the pope in favour of archbishop Chichele ^ ; in 1433 they joined in taking the oath of concord by which Bedford attempted to secure union in the government and national support for it before he left England, and in the same parliament they petitioned the king that Bedford might re- main in the country ^. It is, however, unnecessary to multiply examples of a truth which is apparent in every article of the parliamentary rolls. With the single exception of the cases in which the parliament attempted to tax the spiritualities or otherwise interfere with the administration of the clergy, there is really no exception to the accepted rule, that every question of home administration or foreign policy might be canvassed in the assembly of the commons. The share of the commons in legislation, whether expressed Share of the by the mention of their petition in the preamble of the statutes, legislation, or by their assent to measures which had been previously dis- cussed by the lords, may be regarded as theoretically complete * Rot. Pari. iii. 465, 492 ; iv. 70 sq. 2 lb. iv. 96, 97 ; Rymer, ix. 403. ^ ggg above, p. 134. * Rot. Par. iv. 296. " lb. iv. 322. * lb. iv. 422 sq.; above, p. 118. 262 Constitutional History. [chap. Pains taken before Henry lY began to reign. But for several years there by the commons to continues to be seen some mistrust of the honesty of the secure the /v • 1 • i c • ... exact en- oincjals in the process 01 tui'mng petitions into acts, or en- theirpe- grossing the acts themselves. In 1401, as we have seen, the granted. speaker had to petition that the commons might not be hurried through public business ; and that the petitions which were granted might be enrolled before the justices left the parlia- ment ^. In the same parliament they informed the king that they had been told that the permission given him in the last session to dispense with the statute of provisors had been enacted and entered in the roll in a form different from that in which it was granted. The king under protest allowed the rolls to be searched, and it was found that they were mistaken ^. In 1406 the commons asked that certain elected members might be appointed to view the enrolment and engrossing of the acts Henry V parliament ; and this was granted ^. But the prejudice no them^hi the ^^^'^ continued to be strongly felt, and it was not until the right. second year of Henry V that the full security was obtained, and the king undertook that the acts when finally drawn up should correspond exactly with the petitions ^. The plan subsequently adopted of initiating legislation by bill rather than petition completed, so far as rules could ensure it, the remedy of the evil. A good instance of the careful superintendence which the com- mons kej)t up over the wording of public documents is found in the parliament of 1404, when the king submitted to them the form of the commissions of array about to be issued ; the com- mons cancelled certain clauses and words and requested that for the future such commissions should be issued only in the cor- rected form. The king consulted the lords and judges, and very graciously agreed ^. Attempt to The attempt to bind together remedial legislation and make supply i i i i ^ ^ r> depend on grants 01 money, to make suj)ply depend upon the redress of grievances, was directly and boldly made by the commons in 1 401; the commons prayed that before they made any grant they might be informed of the answers to their petitions ^. The 1 Eot. Pari. iii. 455, 456. ^ ^o. iii. 465. ^ i^. ii;. 585. * See above, p. 81. ^ j^^^. Pari. iv. 526, 527. ^ lb. iii. 458. XVIIT.] Form of Moneij Grants. 263 king's answer, given on the last day of the session, amounted to The killer's a peremptory refusal; he said 'that this mode of proceeding had not been seen or used in the time of his progenitors or pre- decessors, that they should have any answer to their petitions before they had shown and done all their other business of parliament, whether it were matter of a grant or otherAvise ; the king would not in any way change the good customs and usages made and used of ancient times.' It is probable, however, that The objert the point was really secured by the practice, almost immediately gained! adopted, of delaying the grant to the last day of the session, by which time no doubt the really important petitions had received their answer, and at which time they were enrolled \ Speedy execution, however, was a different thing, and the petition of the commons for it proves that delay was a weapon by no means idle or harmless in the hands of the servants of the law. 693. That the commons should have a decisive share in the Share of the bestowal of money grants had become since the reign of taxation Edward III an admitted principle ; and the observance of the rule is illustrated by the history of e\evj parliament. In the foregoing pages the regular votes of taxation have been noticed as they occurred; and the decision of Henry IV in 1407 has been referred to as recognising the right of the commons to originate and, after it has received the assent of the lords, to announce the grant, generally on the last day of the session. The ordinary form of the grant expressed this ; it was made by expressed the commons with the assent of the lords spiritual and temporal, of the grant. This particular form curiously enough occurs first in the grants made to Richard II in 1395, the previous votes of money having been made by the lords and commons conjointly^. It was observed in 1 40 1 and 1402, and henceforth^ became the constitutional ^ Sir H. Nicolas (Ordin. i. p. Ixiv) mentions a ease in which it was ordered that an error in the Roll should be corrected, and no sucli correc- tion appears to have been made : from which he argues that the Rolls may not have been iiigrossed for two or three years after the session. But this could only be exceptional. 2 Rot. Pari. iii. 331. 3 Not however without exceptions. In 1404 the lords for themselves and the ladies temporal and all other persons temporal granted a tax of 20s. on the £20 of land; Rot. Pari, iii. 546. VOL. III. 264 Co7istitutional History. [chap. Departure from the ordinary usae;e. Attempt of the com- mons to tax the stipen- diary clergy Appropri- ation of grants to special purposes. form. It may however be questioned whether Henry's dictum in 1407 was at the time understood to recognise the exclusive right of the commons to originate the gTant. On one occasion in the reign of Edward IV there was a marked departure from the form established by long usage. This was in 1472, when on the occasion of an act for raising a force of 13,000 archers, the commons, with the advice and assent of the lords, granted a tenth of the revenue and income not belonging to the lords of parliament ; and the lords, without any reference to the advice of the commons, followed it up with a similar grant from their own property ^ It is questionable whether this was not a breach of the accepted understanding, but no objection was taken to it at the time ; the grant, as a means of raising additional funds, failed of its object, and it did not become a precedent. The attempt of the commons in 1449 to tax the stipendiary clergy, an attempt perhaps made by oversight, was defeated by the king, who referred the petition which contained their proposal to the lords spiritual to be transmitted to the convocation'-^. As however throughout this period the convoca- tions followed, with but slight variations, the example set by the commons, the practical as well as the formal determination of the money grants may be safely regarded as having now become one of the recognised functions of the third estate. 694. The power which the exercise of this function gave them was freely exercised in more critical matters than those of political deliberation and legislation; and perhaps the hold which it gave them on the royal administration, both in state and household, is the point in which the growth of constitutional ideas is most signally illustrated by the history of this century. The practice of appropriating particular grants to particular purposes had been claimed under Richard 11^; it was observed under Henry IV and his successors ; the greater grants were almost invariably assigned to the defence of the realm ; tunnage and poundage became the recognised provision for the safe- guard of the sea^; the remnants of the ancient crown lands 1 Rot. Pari. vi. 4-8. 3 Vol. ii. p. 563 sq. 2 lb. V. 152, 153. * See above, p. 243. XVIII.] Interference with Expenditure. 365 were set apart for the expenses of the household, for which they Assignments were obviously insufficient, and supplementary grants were *° made from the other sources of national income to enable the king to pay his expenses; and even before Calais had become to Calais, the only foreign possession of the crown, a certain portion or poundage of the subsidy on wool was regularly assigned to it^ But it was the exigencies of the household which gave the com- to the 1 • 1 • T 1 1 1 • 1 household, mons their greatest hold on the crown, and it was a hold which the kings rarely attempted to elude or to resist. One result of Separation their interference in this respect was the separation of the household household or ordinary charges, the civil list or king's list, as from those Fortescue calls it, from the extraordinary charges of the crown ; kingdom, a point which the commons attempted to secure in 1404 by apportioning revenue to the amount of £12, 100; in 1406 it was proposed to vote <£ 10,000 for the purpose, and in 14 13 that sum was assigned to the king as a payment to take pre- cedence of all others, in consideration of the great charges of his hostel, chamber, and wardrobe. The attempts made to regulate the lavish expenditure and to relieve the poverty of Henry VI have been enumerated in our survey of the history of his reign. They show, by the diminution of the sums appor- increasing tioned to him, either that the royal demesnes were alarmingly the c?o\ra. reduced and the royal estate abridged, or else that the distinc- tion between royal and national expenditure was more clearly seen, and the different departments more independently adminis- tered. The acts of resumption which had been urged by the Acts of commons from the very beginning of the century were first in 1450 adopted by Henry VI as a means of recruiting his treasury, but they contained invariably such a list of exceptions as must have nearly neutralised the intended effect of the acts. The crown continued very poor until Edward IV and Henry VII devised new modes of enriching themselves, and in its poverty the commons saw their great opportunity of interference. * For example, in 1449, the commons petition that 20s. from each sack of wool taxed for the subsidy may be assigned to Calais, los. for wages, 5s. for victualling, 5.S, for repairs. The king alters this, and assigns 13s. ^d. for wages and victuals, and 6s. 8(Z. for repairs ; Rot. Pari. v. 146, 147. A similar arrangement had been made in 1423 by the Council ; Ord. iii. 19, 95. 266 Constitutional History . [chap. Interference of the commons with the action of the king. Practice of impeach- ment. Bills of attainder. Very signal examples of such interference force themselves on our notice both early and late. The request made in 1404 that Henry lY would dismiss his confessor, was followed up with a petition for the removal of aliens from the household ^ In 1450 Henry VI was asked to send away almost all his faithful friends^. He was told that his gifts were too lavish and must be resumed^. In every case he had to yield, and it was his unwillingness as well as his inability to resist that caused the nation to conceive for him a dislike and contempt, from which the goodness of his intentions might have saved him. Where the private affairs of the household were thus scrutinised, it could not be expected that the conduct of public officers could escape. The practice of impeachment directed against Michael de la Pole in 1386 was revived in 1450 for the destruction of his grandson. But the process of events during the wars of the Roses was too rapid, and the parliaments were too imperfect and one-sided to be regarded as fair tribunals. The constitution receives from such proceedings more lessons of warning than of edification. The impeached minister, like the king who is put on his trial, when he has become weak enough to be impeached, may remain too strong to be acquitted ; and the majority which is strong enough to impeach is strong enough to condemn. In Suffolk's case, as we have seen, neither king nor lords had strength enough to ensure a just trial ; Henry's decision was an evasion of a hostile attack rather than the breach of a recognised rule. The bills of attainder which on both sides followed the alternations of fortune in the field, illustrate political and per- sonal vindictiveness, but contribute only a miserable series of constitutional precedents. The prohibition of appeals of treason made in parliament, which was enacted by Henry IV in 1399*, was a salutary act, although it did not preclude the use of the still more fatal weapons. The rejected petition of 1432 ''', in which the commons prayed that, neither in parliament nor council, should any one be put on trial for articles touching * Eot. Pari. iii. 524, 527. ^ j^,^ v, 216, ^ lb. V. 217. * Above, p. 23. ^ Rot. Pari. iv. 403. XVIII.] Audit of Accounts. 267 fitness of a legislative assembly for entertaining such impeach- ments. But the practice was too strong to be met by weak legislation, and had, with all its cruelty and unfairness, some vindication in the lesson which it could not fail to impress on unworthy ministers. The rule of insisting on a proper audit of account was a Audit of corollary from the practice of appropriating the supplies to^sStedon. particular purposes. It was one which was scarcely worth con- testing. In 1406 the commons, who objected to making a grant until the accounts of the last grant were audited, were told by Henry that ' kings do not render accounts ' ; but the boast was a vain one ; the accounts were in 1407 laid before the commons Secured, without being asked for; and the victory so secured was never again formally contested. The statement laid by Lord Cromwell before the parliament of 1433 shows that the time was j^ast for any reticence on the king's part with regard to money matters ^ In this attempt to enumerate and sreneralise upon the chief General con- , ^ 7 . . . elusion from constitutional incidents of a long period, it is not worth while these facts. at every point to pronounce a judgment on the good faith of the crown or the honesty of the commons ; or to discuss the question whether it was by compulsion or by respect to the terms of their coronation engagements that the Lancastrian kings were actuated in their overt acceptance and maintenance of constitutional rules. It is upon the fact that those rules were The rule of 1 1 1 -1 house of observed and strengthened by observance, that they were not Lancaster broken when the king was strong, or disingenuously evaded tutiouai. when he was weak, that the practical vindication of the dynasty must turn. Henry IV, as has been said more than once, was a constitutional politician before he became king, and cannot be charged with hypocrisy because when he became king he acted on the principles which he had professed as a subject. Henry V in all that he did carried with him the heart of his people. Henry VI was honest ; he had been brought up to honour » and abide by the decisions of his parliament ; the charge of falseness, by which the strong so often attempt to destroy the * Above, pp. 54, 117. 268 Constitutional History. [chap. Bcst^side last refuge which the weak find in the pity and sympathy of irancaster mankind, is nowhere proved, and very rarely even asserted, against him. But the case in favour of these kings does not depend on technicalities. By their devotion to the work of the country, by the thorough nationality of their aims, their careful protection of the interests of trade and commerce, their maintenance of the universities, the policy of their alliances, their attention to the fleet as the strongest national arm, the first two Henries, Bedford, Beaufort, and in a less degree Henry VI and Gloucester \ vindicated the position they claimed as national ministers, sovereign or subject. Jf the"^"^^" 695. There is another side to the question. The Lancastrian rSgS^*^^ reigns were to a great extent a penod of calamity. There were pestilences, famines, and wars : the incessant border warfare of the reign of Henry lY tells not only of royal poverty and weakness, but of impolicy and of disregard for human suffering, wrought by ^^^^ ^^^^ Henry V in France must be condemned by the judg- th^long ment of modern opinion; it was a bold, a desperate undertaking, fraught with suffering to all concerned in it ; but it is as a great national enterprise, too great for the nation which undertook it to maintain, that it chiefly presents itself among the prominent features of the time. It is common and easy to exaggerate the miseries of this war ; its cost to England in treasure and blood was by no means so great as the length of its duration and the extent of its operations would suggest. The French adminis- tration of Bedford was maintained in gi'eat measure by taxing the French-, rather than by raising supplies from England, and the great occasions of bloodshed were few and far between. But it did produce anarchy and exhaustion in France, and ^ The Libel of English policy, whether addressed to Cardinal Beaufort or Lord Hungerford the treasurer, in or about 1436, in a very remarkable way presses the safeguard of the sea and the development of commerce upon the ministers ; it shows however that some such pressure was needed ; * quoting the saying of Sigisnmnd, that Dover and Calais were the two eyes of England, and looking back with regret on the more eflficient administra- tion of Henry V. It is printed in the Political Poems, vol. ii. pp. 157-205 ; and there is a tract of Sir John Fortescue to the same purpose, 0pp. i. p. 549. See too Capgrave, 111. Henr. p. 134. * ie 20,000 a year however was paid by Henry VI to the Duke of York as lieutenant of France, Ord. v. 171. XVIII.] Secret of the fall of Lancaster. 269 over-exertion and consequent exhaustion in England ; and from Exhaustion these combined causes arose the most prominent of the impulses the^wS.^ that drove Henry VI from the throne. Still the war was to a certain extent felt to be a national glory, and the peace that ended it a national disgrace, which added a sense of loss and defeat over and above the consciousness that so much had been spent in vain. But neither national exhaustion, resulting from this and other These causes causes, nor the factious designs of the house of York, nor the to account misguided feeling of the nation with respect to the peace, nor of the hous« the unhappy partisanship and still more unhappy leadership of ^ Margaret of Aujou, would have sufficed to unseat the Lancas- trian house, if there had not been a deeper and more penetrating source of weakness ; a source of weakness that accounts for the alienation of the heart of the people, and might under other circumstances have justified even such a revolution. When the commons urged upon Henry IV the need of better and stronger governance, they touched the real, deep, and fatal evil which in the end was to wear out the patience of England. Although sound and faithful in constitutional matters, the Lancastrian kings were weak administrators at the moment when the nation required a strong government. It was so from the very begin- The weak- > ning ^. Constitutional progress had outrun administrative order, house be- Perhaps the very steps of constitutional progress were gained by the^lrst!^*" reason of that weakness of the central power which made perfect order and thorough administration of the law impossible; perhaps the sources of mischief were inherent in the social state of the country rather than in its institutions or the administra- tion of them ; but the result is the same on either supposition ; following events proved it. The Tudor government, without half the constitutional liberties of the Lancastrian reigns, pos- sessed a force and cogency, an energy and a decision which was even more necessary than law itself. A parallel not altogether false might be drawn between the eleventh, or even the twelfth ^ See the letter addressed to Henry IV by Philip Eepingdou in 1401 ; Beckington, i. 151 ; Ad. Usk, pp. 65, 66 ; letter of Chandler to Beckington in 1452, ib. p. 268. 270 Constitutional History. [chap. Paraiiehvith centuiy, and the fifteenth. Henry YI resembled the Confessor history. in many ways. Henry VII brought to his task the strength of the Conqueror and the craft of his son : England under Warwick was not unlike England under Stephen, and Henry of Kich- mond had much in common with Henry of Anjou. Want of The want of ' governance ' constituted the weakness of governance, jj^j^j.^ jy . -j^^ inherited the disorders of the preceding reign, and the circumstances of his accession contributed additional causes of disorder. The crown was impoverished, and with impoverishment came inefficiency. The treasury was always low, the peace was never well kept, the law was never well executed ; individual life and property were insecure ; whole districts were in a permanent alarm of robbery and riot ; tiv™weak^' local administration was either paralysed by party faction ness. or lodged in the hand of some great lord or some clique of courtiers. The evil of local faction struck upwards and placed the elections to parliament at the command of the leaders. The social mischief thus directly contributed to weaken the consti- tution. The remedy for insufficient 'governance' was sought, not in a legal dictatorship such as Edward I had attempted to assume, nor in stringent reforms which indeed without some such dictatorship must have almost certainly failed, but in admitting the houses of parliament to a greater share of influ- ence in executive matters, in the 'afforcing' or amending of the council, and in the passing of reforming statutes. Recognition It is curious to mark how from the very beofinnin^ of the of the evil. . . J o to century men saw the evils and failed to gi'asp the remedy. Not to multiply examples; in 1399 the commons petitioned against illegal usurpations of private property ^ ; the Paston Letters furnish abundant proof that this evil had not been put down at the accession of Henry VII. The same year the county of Salop was ravaged by armed bands from Cheshire The country was infested with malefactors banded together to avoid punish- ment^. In 1402 there is a petition against forcible entries by the magnates*. In 1404 the war between the earls of ^ Rot. Pari. iii. 434. 2 j^j jjj p * lb. iii. 487. XVIII.] Private Wars. Northumberland and Westmoreland was regarded by the par- Private wai liament as a private war; and Northumberland's treason was condoned as a trespass only^ In 1406 the king had to remodel Frequent his council in order to ensure better governance; but theltSnces. petition for ' good and abundant governance' was immediately followed by a request for the better remuneration of the lords of the council, and the speaker had to insist on more co-opera- tion from the lords in the work of reform^. In 1407 the king was told that the better and more abundant governance had not been provided, the sea had been badly watched, and the marches badly kept^. In 141 1 a statute against rioters was statutes passed On the accession of Henry V the cry was repeated ; SS-S the late king's promises of governance have been badly kept ; the marches were still in danger ; the Lollards were still dis- turbing the peace ; there were riots day by day in diverse parts of the realm ^. The parliament of 1414 reissued the statute against rioters ^ ; in 1 4 1 7, according to the petitions, large bands of associated malefactors were ravaging the country, plundering the people, holding the forests, spreading Lollardy, treason, and rebellion, robbing the collectors of the revenue ^. Matters were still worse in 1420; whole counties were infested Bands of by bandits ; the scholars of Oxford were waging war on the county; the inhabitants of Tynedale, Kedesdale, and Hexham- shire had become brigands; all the evils of the old feudal immunities were in full force ^ Similar complaints accumulate Complaints during the early years of Henry YI, and seem to reach the ]£nry vi. highest regions of public life in the armed strife of Gloucester and Beaufort. But the general spirit of misrule was quite independent of party and faction. The quarrels of the heir male and heirs general of the house of Berkeley, carried on both by law and by arms, lasted from 1421 to 1475, through three generations^. In 1437 lords Grey and Fanhope were at war in ^ Above, p. 43. 2 j^o^ Yax\. iii. 571 sq., 576 sq., 585. 3 lb. iii, 609, 610. * 13 Hen. IV, c. 7; Statutes ii. 169. 5 Kot. Pari. iv. 4. ^ 2 Hen. V, c. si. i. c. 9 ; Statutes ii. 186. ' Kot. Pari. iv. 113. « lb. iv. 124, 125. ^ Dugdale, Baronage, i. 362-365. 273 Constitutional History. [chap. Jf ?uWi? Bedfordshire ^ and in 1 438 the two branches of the house of West- disorder, moreland, one under the earl, the other under his stepmother, the sister of Cardinal Beaufort, were at open war^. In 1441 the earl of Devon and lord Bonneville contested in arms the stewardship of Cornwall^. The struggles of Egremont and Neville, of the duke of Exeter and lord Cromwell, were private wars. In 1441 when archbishop Kemp* was one of the king's most trusted councillors, there was war between the tenants of his liberty of Ripon and the king's tenants of Knaresborough forest; and the Eipon men brought down the half-outlawed bandits from the archbishop's liberty of TyUedale to help them. By the light of these illustrations the struggle between York and Lancaster seems scarcely more than a grand and critical instance of the working of causes everywhere potent for harm. Imperfect The enforcement of law under such circumstances was scarcely enforcement tii i. •ini-i'' of law. attempted : although it was an age of great judges ^ the adminis- tration of the law was full of abuses ; the varieties of conflicting jurisdictions, the facilities for obtaining, and cheaply obtaining, writs of all kinds, gave to the strong aggressor a legal standing- ground which they could not secure for the victim ^ ; the multi- plication of legal foims and functionaries was inefficient it would seem for any good purpose ; these evils, and the absence of any determined attempt to remedy them, brought about a strong False and permanent disaffection. As is ever the case, the social charges . . i • r» against the miseries called down upon the government an accumulation of government. ^^^^^ charges. The nation complained of the foreign policy of Suff'olk ; and urged on the king the expulsion of Somerset from ^ Ordinances, v. 35, ^ Excerpta Historica, pp. 2, 3 ; Ordinances, v. 35-40 ; 173-180. ^ See above, p. 169. * Rymer, xi. 27 ; Plumpton Papers, ed. Stapleton, pp. liv. sq. ^ Reeves, Hist, of English Law, vol. iii. pp. 108, 109, speaks with high praise of the administration of justice during the troublous years of Henry VI. No doubt the law was ably discussed and the judges were great judges, but justice was not enforced ; there was no governance. ^ Abundant illustration of this will be found in the Paston Letters. Even royal letters interfering with the covirse of justice could be easily purchased; e.g. Henry VI issues letters to the sheriff of Norfolk directing him to impannel a jury to acquit Lord Molines ; Paston Letters, i. 208 : such a letter might be bought for a noble, ibid. p. 215. XVIII.] The Rouse of York. the council. The rebels, under Cade, almost justified on the Charges of n n • 1 1 • 1 • i 1 1 treason, a ground of misgovernment, sought their object by charges 01 proof of dis- , ^n ^ ' i ^ affection treason against men who, however seliish or incapable, were at and weak all events faithful. The duke of York, who might have ruled England in strength and peace as he had governed Normandy, and might have won the wild English as he had won the wild Irish, could not push the claims of the nation for efficient justice without urging his own claim first to the foremost place in council and then to the crown itself. It was the lack of the strong hand in reform, in justice, and in police, the want of governance at home, that definitely proved the incapacity of the house of Lancaster, and that made their removal possible. It was the fatal cause of their weakness, the moral justification of their fall. And it was in the physical and moral weakness and irresolution of Henry YI, and in his divided councils, that this fatal deficiency was most fatally exemplified. Yet he was set aside and his dynasty with him on an altogether different occasion, and a widely discordant plea. 696. The house of Lancaster had reigned constitutionally, The govern- but had fallen' by lack of governance. The house of York sue- house of ceeded, and, although they ruled with a stronger will, failed stronger but altogether to remedy the evils to which they succeeded, and than that of contributed in no small degree to destroy all that was de- structible in the construction. The record of the public history of the reigns of Edward IV and E-ichard III shows how ill they succeeded in securing internal peace or inspiring national con- fidence. England found no sounder governance under Ed- ward IV than under Henry VI ; the court was led by favourites, justice was perverted, strength was pitted against weakness, riots, robberies, forcible entries were prevalent as before. The house of York failed, as the house of Lancaster had failed, to justify its existence by wise administration. As to the consti- tutional side of the question, the case is somewhat different. One good result had followed the constitutional formalism of the three reigns ; the forms of government could not be altered. But they might be overborne and perverted ; and the charge of thus wresting and warping them is shared by the house of VOL. III. T 274 Constitutional History, [chap. The house of York with the house of Tudor. Henry VIL combining the 1 ork anti- ' o ^ cipated the interests of the rival roses, combines the leading characteristics pohcyofthe . .... Tudors. of their respective policies ; with Lancaster he observes the forms of the constitution, with York he manipulates them to his own ends. The case against the house of York may be briefly stated ; it rests, as may be imagined, primarily on legal and moral grounds, but under these there lurks a spirit defying and ignoring constitutional restraints. Edward IV claimed the throne, not as an elected king, but as the heir of Kichard II ; the house of Lancaster had given three kings ' de facto non de jure' to England. Their acts were only legal so far as he and his parliaments chose to ratify them. He did not then owe, on his own theory, so much regard to the constitution as they had willingly rendered. Nor did he pay it. He did not indeed rule altogether without a parliament, but he held sessions at long intervals, and brought, or allowed others to bring, before them only the most insignificant matters of business. His statute-roll contains no acts for securing or increasing public Manipula- liberties ; his legislation on behalf of trade and commerce con- tion of par- . . . , „ , . , . , . liaraentary tains no principles of an expandinf? or liberatmsf policy. To institutions. . ^ ^ ^ ^ ° ^ -o \ 3 register grants 01 money, resumptions 01 gifts, decrees and reversals of attainders, exchanges of property, private matters of business, has become the sole employment of the assembly of the estates ; there is no question of difficulty between liberty and prerogative ; no voice is raised for Clarence ; no tax is refused or begrudged. Outside parliament misrule is more obviously Snces°" apparent. The collection of benevolences, regarded even at the time as an innovation, was perhaps a resuscitated form of some of the worst measures of Edward II and Richard II, but the attention which it aroused under Edward IV shows how strange it had become under the intervening kings. The levies for the Commis- War with Scotland were raised under the old system of com- array.^^ missions of array which had been disused since the early years of Henry IV. The numerous executions which marked the earlier years of Edward's reign show that he considered the country to be in a condition to which the usages of martial law were fairly applicable. Edward himself took personal part in the XVIII.] Infrequency of Farliaments, 275 trials of men who liad offended him. The courts of the con- Legal scvcritiiGS* stable and the marshal sent their victims to death on frivolous charges and with scant regard for the privilege of Englishmen. The same reign furnishes the first authoritative proofs of the use of torture in the attempt to force the accused to confession or to betray their accomplices. A few instances of each of these abuses will suffice. During the twenty-five years of the York dynasty the country Suspension was only seven times called upon to elect a new parliament ; the mentary sessions of tliose parliaments which really met extended over a very few months ; their meetings being frequently held only for the purpose of prorogation. No parliament sat between January 1465 and June 1467, or between May 1468 and October 1472 ; and between January 1475 January 1483 the assembly was only called together for forty-two days in 1478 to pass the attainder of the duke of Clarence. The early parliaments had given the king an income for life. The long intermissions were acquiesced in by the nation, because they feared additional demands ; but it was well known and recorded that the king avoided the summoning of parliament because he anticipated severe criticism on his impolicy and extravagance. Servile as his parliaments were, he would rather rule without any such check. The practice of the later years of Henry VI, during which elections had been as much as possible avoided, furnished him with precedents for long prorogations ; Edward suspended parliamentary action for years together ; and England, which had been used to speak its mind once a year at least, was thus reduced to silence. The records of the sessions are so barren as to silence any Legislative regrets at their infrequency. The reign of Edward IV, as has theTes^ ons been well said\ is the first reign in our annals in which notmen^'* a single enactment is made for increasing the liberty or security of the subject. Nor can it be alleged that such enactments were unnecessary, when frequent executions, outrageous usur- pations, and local riots form the chief subject of the annals of the time. Commerce increased ; and the increase of commerce ^ Hallam, Middle Ages, iii. 198. T 2 Constitutional History. [chap. Commercial attests the increase of public confidence, but by no means legislation, .-pi i - ^ • justifies the pohcy which arrests rather than invites that con- fidence ; and commercial activity, especially in such states of society as that through which England was now passing, was to some extent a refuge for exhausted families, and a safety valve for energies shut out of their proper sphere. Taxation by The collection of benevolences, in which the age itself recoff- benevo- . . . lences. nised a new method of unlawful taxation, is an obscure point. If it were not that both the chroniclers and the statute book assert the novel character of the abuse, we might in the paucity of records ^ be tempted to doubt whether the charge of inno- ^ There is anjong the Ordinances of the Privy Council, vol. v. pp. 418 sq., a set of instructions to commissioners for raising money which is without date, but which is referred by Sir. R. Cotton to the 20th, by Sir H. Nicolas to the 2ist, and by another aaodem note to the 15th of Henry VI. They are directed to assemble the inhabitants of certain towns above the age of sixteen, and to meet an assembly of the body of the counties to which two men from each parish are to be summoned by the sherilF : the names of those present are to be entered in two books, and the commissioners are then to explain that by the law the king can call on his subjects to attend him at their own charges in any part of the land for the defence of the same against outward enemies ; that he is unwilling to put them to such expense and asks them of their own free will to give him what they can afford ; at least as much as would be required for two days personal service. No inconvenient language or compulsion is to be used. Another undated series of instructions for the collection of men and money for the relief of Calais, is printed from the same MS. in Ordin. iv. 352. These instructions, if the date be rightly assigned, would seem to show that the idea of a benevolence was at all events not strange under Henry VI ; but there is no authority for the date, the instructions do not appear ever to have been issued, and if any such taxation had taken place it must have appeared among the sins laid to the charge of Henry's government. Until better information is forthcoming, it would be more reasonable to refer it to the reign of Edward IV or Henry VII. Other instances in which such a charge has been made against the Lancaster kings are these : in 1402 Henry IV wrote to a large number of lords and others accrediting Sir William Esturmyn 'pur vous declarer le busoing que nous en (monoye) avons, li quel en ce veuillez croire et faire a notre priere ce qu'il vous requerera de notre part en celle partie Ord. ii. 73 : in 142 1 seven persons were summoned before the council in default of payment of suras which they had promised to lend the kinsr; ib. ii. 280: and in or about 1442 Henry VI wrote to the abbot of S. Edmund's, asking 'that ye so tendryng thees our necessitees wol lene us . , . such a notable surame of mony to be paied in hande as our servant bearer of thees shall desire of you.' In another letter he asks for a loan of 100 marks to be secured by Exchequer tallies; Ellis, Orig. Lett. 3rd series, i. 76-81. Sets of instructions to the same effect will be found in the Ordinances, v. 187; cf pp. 201, 414; vi. 46-49 ; 236 sq. ; 322 sq. But these cases, most severely interpreted, involve only the sort of loans that were sanctioned by parliament. XVTII.] Benevolences, 277 vation brought against Edward IV were true, or to suspect that, Novelty of among the many financial expedients adopted during the Lan- dien?^^ castrian troubles, he might have found something like a precedent. Of this however there is no sufficient example forthcoming, and, although a treasurer like the earl of Wiltshire may not unreasonably be supposed to have now and then extorted money by violence, the popularity of Henry VI and Margaret was never so great as to enable them to become successful beggars. Such evidence as exists shows us Edward IV canvassing by word of mouth or by letter for direct gifts of money from his subjects^ Henry III had thus begged for new year's gifts. Edward IV requested and extorted 'freewill offerings' from Edward's every one who could not say no to the pleadings of such a king, ability. He had a wonderful memory too, and knew the name and the particular property of every man in the country who was worth taxing in this way. He had no excuse for such meanness; for the estates had shown themselves liberal, he was rich in forfeitures, and an act of resumption, passed whenever the parliament met, was enough to adjust the balance between income and neces- sary expenditure. He grew richer still by private enterprise. Against Richard III the case is equally strong, for although his Richard s exigencies were greater h« acted, in collecting benevolences, iniences. the teeth of a law which had been passed in his own parliament ; and, although in this respect he had probably to bear much of the odium which ought to have fallen upon Edward, he had * See above, p. 213. In the York Eecords (Davies, p. 130) of 1482 the name of Benevolence is applied to the contingent of armed men furnished for the Scottish expedition : ' the benivelence graunted to the kynges highnes in the last viage his highnes purposed in his most roiall person to go ayanesthis auncient enemy es the Scottes, that is to say a capitan and six score archers;' see also p. 279 note 3 below. The common form in which a benevolence was demanded from the country in general, may be seen in the letters patent of Henry VII, July 7, 1491 ; Rymer, xii. 446, 447. The commissioners were directed to communicate ' cum talibus nosti orum subditorum . . . prout vobis melius videbitur, eis nostrum propositum et mentem plenariam de et in praemissis et eorum singulis intimantes, eos movendo exhortando et requirendo ut nobis in hoc tarn magno arduoque negotio, non solum nostrum statum verum etiam et eorum salutem con- cernente, juxta eorum facultates assistant et opem in personis et aliis mediis et modis, prout vobis et eis melius visum fuerit, conferant.' The promises so obtained were, by the Act 11 Hen. VII. c. 10, enforced by im- prisonment; Statutes, ii. 576. 278 Constitutional History. [chap. Asipnof been the stronorest man in Edward's councils. That the absolute ° power. benevolences were any great or widely felt hardship is improbable; Edward could not have maintained his popularity if they had been. But they were unconstitutional ; they were adopted with the view of enabling tlie sovereign to rule without that reference to parliamentary supply and audit which had become the safeguard of national liberty. A king with a life revenue and an unchecked power of exacting money from the rich is substantially an absolute sovereign : the nation, whether poor and exhausted as in the earlier days, or devoting itself to trade instead of politics, as in the last years of the dynasty, parts too readily with its birthright and awakes too late to its loss. The loss of records and the anarchy of the last years of the reign of Henry VI leave us in great doubt as to the means by Maiute- which forces were raised to maintain order in the king's name armed throughout England, although we know that the king's name forces* was freely used by both sides in the actual conflict. Royal letters^ however analogous to, if not identical with, the com- missions of array which received their final form in 1404, were no doubt the most convenient expedient for reinforcing the royal army ^ ; whilst the rebel force, which the duke of York and the Nevilles until they got the upper hand were able to bring into the field, was largely composed of their own tenants and the inhabitants of disaffected districts ^ serving for pay, and probably organised in much the same way as they would have been if marshalled under royal authority. This regularity was, it may be supposed, still further exemplified when, in the later stages of the struggle, the northern counties were pitted against the southern, and the York party, as well as queen Margaret, claimed to be acting in the king's name. In a time of civil war * See examples in Rymer, xii : a writ to collect the posse comitatus against rebels, in 1457, p. 401 ; commission to the earl of Pembroke to take levies in 1460, p. 445, &:c. * The letter of the duke of York to the men of Shrewsbury in 1452 will serve as an illustration : ' I . . . am fully concluded to proceed in all haste against him with the help of my kindred and friends . . . praying and ex- horting you to fortify, enforce, and assist me, and to come to me with all diligence wheresoever I shall be or draw, with as many goodly and likely men as ye may make to execute the entent aforesaid;' White Rose, pp. xli, xlii. XVIII.] Commissions of Array, 279 however it is useless to look for constitutional precedent ; the Commis- prevalence of disorder is only adduced as furnishing a clue to array under fk • • r 1, 1 • t y .X. • ^^yi^xd. IV the origin 01 abuses which emerge when the occa&ion or ex- and cuse for them is over. The commissions of array by which Edward IV and Eichard III collected forces for the war with Scotland do not form a prominent article in the indictment against them ; for the country had become used to fighting, and the obligation to supply men and money for their maintenance in case of invasion was a common-law obligation however jealously watched and however grudgingly fulfilled^. These armies were not raised by authority of the parliament, nor paid by the government for the services performed beyond the limits of their native counties, nor were they required against sudden invasion ^. They were not a part of the host of archers * The law as settled by 4 Hen. IV. c. 13 in 1402, and exemplified in Commissions of Array from 1404 onward was that except in case of invasion none shall be constrained to go out of their own counties; and that men chosen to go on the king's service out of England shall be at the king's v?ages from the day they leave their ov^n counties. As the Welsh and Scottish wars of Henry IV were defensive against invasion, commissions of array in which the counties must have borne the expense of the force furnished were frequently issued; Kymer, viii. 123, 273, 374, &c. ; and the clergy were arrayed under the same circumstances ; ib. 123; ix. 253, 601, &c. The armies collected by Henry V for his war in France consi^^ted partly of a feudal levy, i. e. of a certain force furnished by those who had received estates from Edward III with an obligation to serve at Calais, &c. (Rymer, viii. 456, 466) ; but chiefly of (i) lords and leaders of forces raised by themselves, v,^ho served the king by indenture ; and (2) of volunteers raised by the king's officers at his wages, 'omnes qui vadia nostra. . . percipere voluerint ' ; ib. ix. 370. In 1443 Henry VI issued letters of privy seal for an aid of men, victuals, and ships ; Ord. v. 265, In 1464 by letters close Edward IV orders the sheriffs to proclaim that every man from sixteen to sixty be well and defensibly arrayed, and that he so arrayed be ready to attend on his highness upon a day's warning in resist- ance of his enemies and rebels and the defence of this his realm ; Rymer, xi. 524 ; cf. 624, 652, 655, 677. This was peremptory but not illegal. ^ In the Commission for Ari ay against the Scots in 1480 the Scots are regarded as invaders ; Rymer, xii. 117. But the abuse of the plea is clear from the language of the York Records, in which the force furnished is termed a benevolence : the letters under which it was levied were from the duke of Gloucester (p. 107), the number of soldiers was discussed in the city council and the captain appointed there (p. 112); it was agreed by the king's high commandment by his gracious letters that the city and liberties should furnish a captain and 120 archers, 40 of them to be furnished by the Ainsty ; and that the constables in every parish should collect the money afFered (assessed) in each parish, to be delivered to the captain, who was bound to return any overplus unexpended; pp. 115. 116. See also Plumpton Papers, pp. 40-42. The instructions given by Richard III to the Commissioners of Array in 1484 (Letters, i. 85) fully bear out this. 28o Constitutional History, [chap. which the parliament of 1453 granted Ho be maintained by those on whom the burden should fall/ nor of the like force voted in 1472, for the payment of which the lords and commons voted a separate tenth. They were levied by privy seal letters from the king, and were paid by the districts which supplied them irrespective of the nature of their service. The obligation was based no doubt on the ancient law and statute of Winchester ; the abuse had, no doubt, abundant precedent during the reign of Edward III, but it was an abuse notwithstanding, and must be viewed as part of a general policy of irresponsible government ^. Under such a government, whether in times of civil war or during the periods of peace that are possible in a reign of terror, judicial iniquities are quite compatible with the maintenance of the forms of law. During the troubled days of Henry VI the courts sat with regularity and the judges elaborated their decisions, when it depended altogether on the local influence of the contending parties whether the decisions should he enforced at all. In criminal trials the most infamous tyrannies may coexist with the most perfect formality, and after a regular trial and legal condemnation the guilty and the innocent alike, at least among the minor actors, may be avenged but cannot be rehabilitated. The York kings have left an evil reputation for judicial cruelties ; the charge is true, although it must be shared with the men who lent themselves to such base transactions and with the age which was sufficiently demoralised to tolerate them. The wanton bloodshed of the civil war, the earlier political executions, the long series of blood-feuds dating from the beginning of the fourteenth century, the generally inhuman savageness of the criminal judicature, all tended the same way. Edward IV and Eichard III are not condemned because they shared the character of their times, but because under their influence that character, already sanguinary, took new forms of vindictive and aggressive energy. The cruel executions of persons taken in armed resistance, of which men like Tiptoft and ^ Grose, Military Antiquities, i. 71, has printed a paper presented by Sir Robert Cotton to the king, MS. Cotton Julius F. 6, on the provision of forces at the charge of the counties. The question is one of some pro- spective impoi-tance ; Hallam, Const. History, ii 133. XVIII.] Use of Torture. 281 Montague bear the immediate responsibility, may be extenuated as exceptional, as the necessary results of civil strife, or as the ordinary action of wild martial law; yet Tip toft, the cultivated disciple of the Renaissance, has an evil pre-eminence as the man who impaled the dead bodies of his victims, and thus exceeded even the recognised legal barbarities ; and Montague went beyond precedent in murdering his prisoners. The practice of Practice of torture for the purpose of obtaining evidence from unwilling witnesses is another mark of the time. Sir John Fortescue alleges the use of torture as a proof of the inferiority of French to English law^; meaning thereby, as it is argued, not that the practice was unknown altogether, but that it was employed only under the prerogative authority of the crown, and not under the common law. It is under Edward IV however that we find the first recorded instances in medieval history of its use in England. In 1468 a man named Cornelius, who carried letters instances of of Queen Margaret, was burned in the feet^ to make him betray mentl^^°^" his accomplices ; J ohn Hawkins, one of the persons whom he mentioned, was racked, and accused Sir Thomas Cook, an alderman of London. Cook was tried by jury before a special commission of judges, one of whom. Sir John Markham, directed the jury to find him guilty of misprision, not of treason. The jury complied and Markham was deprived of his judgeship ^. The tradition of the Tower, that the rack which bore the name of the duke of Exeter's daughter was introduced by John * Fortescue, de Laudibue, c. 22. That torture was not altogether un- known in England is certain. Mr. Pike, History of Crime, i. 427, adduces from the Pipe Eoll, 34 Hen, II, the case of a man who was fined ' quia cepit quandam mulierem et eam tormenta\at sine licentia regis ; ' — Edward II gave leave for the application of ' quaestiones ' in the trial of the Templars; Wilk. Cone. ii. 314; Foedera, ii. 118, 119. In the 22 Edw. Ill a commission was issued to inquire into the practice of tor- turing men by gaolers to compel them to become approvers ; Pike, Hist. Cr. i. 481. Jardine, in his 'Reading on Torture,' concludes that the practice was allowed by royal licence, and was known to the prerogative although not to the common law. His argument that the silence of the Records proves the commonness of the usage is not conclusive. 2 W. Worcester, p. 789. 5 Foss, Biogr. Jur. p. 435 ; Stow, p. 420, says that Hawkins was racked on the brake called the duke of Exeter's daughter. The factitious speech of the duke of Buckingham in 1483 (above, 224) implies that Cook him- self was tortured. 282 Constitutional History. [chap. ?h?Swe? Holland, duke of Exeter and constable of the Tower under Henry VI ^, may not be entirely unfounded : the Hollands were a cruel race, and the duke of Exeter, who was one of the bitter enemies of the Beauforts, was an unscrupulous man who may have tortured his prisoners. Here however is the first of a chain of horrors that run on for two centuries. Another abuse which had the result of condemning its agents to perpetual Jfth^c^S-'' ^^^^^7 ^'as the extension of the jurisdiction of the High Con- stable, stable of England to cases of high treason, thus depriving the accused of the benefit of trial by jury and placing their acquittal or condemnation in the hands of a political official. When Edward IV, early in his reign, gave the office of constable to Tiptoft he invested him with unparalleled powers ; he was to take cognisance of and to proceed in all cases of high treason by whomsoever they might be initiated ; to hear, examine, and conclude them, ' even summarily and plainly, without noise and fiSto E s^ow of judgment, on simple inspection of fact ' ; he was to act as king's vicegerent, without appeal and with power to inflict punishment, fine, and other lawful coercion, notwithstanding any statutes, acts, ordinances, or restrictions made to the con- trary 2. Similar powers were conferred on the earl Rivers in ^ Stow, p. 420 : Coke, 3 Inst. p. 34, represents the introduction of the rack as a part of a scheme which John Holland, duke of Exeter, and the un- fortunate duke of Suffolk contrived for introducing the civil law into England. Exeter and Suffolk however were personal enemies and rivals, Exeter being a close ally of duke Humfrey. ^ Edward, in the patent of Aug. 24, 1467, by which he appointed lord Rivers, rehearses that of Feb. 7, 1462, by which Tiptoft was appointed, and in which he vests in him all powers which the constable enjoyed in and since the reign of William the Conqueror : ' ad cognoscendum et procedendum in omnibus et singulis causis et negotiis de et super crimine laesae Majestatis sen ipsius occasione, caeterisque causis quibuscunque, per praefatum comitem ut Constabularium Angliae, seu coram eo, ex ojBBcio, seu ad instantiam partis qualitercunque metis, movendis, seu pendentibus . . . causasque et negotia praedicta, cum omnibus et singulis suis emergentibus incidentibus et connexis, audiendum, examinandvun et fine debito terminan- dum, etiam summarie et de piano sine strepitu et figura judicii, sola facti veritate inspecta, ac etiam mana regia si oportunum visum foret eidem Johanni, consanguineo nostro, vices nostras, appellatione remota, ex mero motu et certa scientia nostra praedicta, similiter commiserimus plenariam potestatem, cum cujuslibet poenae, mulctae et alterius cohevtionis legi- timae, executionisque rerum quas in ea parte decemeret, facultate, &c. . . . Statutis, ordinationibus, actibus et restrictioaibus in contrarium editis, XVIII.] Legal and illegal seventies, 283 1467, and on his death Tiptoft was again invested with them its exercise. It was by this supreme and irresponsible judicature that so many Instances of of the Lancastrians were doomed. The earl of Oxford and his son and four others were tried by the law of Padua \ of which Tiptoft was a graduate, and beheaded in 1462. Twelve of the prisoners taken at Hexham were condemned and executed in the same summary fashion at York ^. Sir Ralph Grey, the defender of Alnwick, was the same year tried by Tiptoft and beheaded in the king's presence ^. Lord Rivers, from whom better things might have been hoped, disposed of two of the defenders of Harlech by the same process ^ It was the appli- cation of martial law to ordinary cases of high treason. The military executions on both sides, the massacre of prisoners, the illegal reprisals of Warwick and Clarence in 1469 and 1470? were alike unjustifiable, but in the commission and jurisdiction of these two constables England saw a new and unconstitutional tribunal avowedly erected in contempt of statute and usage. But even where the forms of the common law were followed, the crushing policy of the government made itself felt. The doctrine Constructive . . 1 f» tre&sons. of constructive treason ^ was terribly exemplified in the cases of Burdett, Stacy, and Walker. Yet these men were tried with all the ceremonies of law, and by spevcial commissions consisting of the judges and chief men of the land ^. Clarence, when he wished to punish the suspected poisoner of his wife, had the prisoner tried before an unimpeachable tribunal, yet the act was recognised as violent and illegal But the trial and execution Legal of Clarence himself and the conduct of Edward in that trial were not more repugnant to English constitutional beliefs than was the treatment of the men who had fallen victims to their caeterisque contrariis non obstantibus quibuscunque.' Rymer, xii. 581, 654. Well may Coke say that this is directly against the common law; 4 Inst. p. 127. ^ ' By lawe Padowe ' ; Warkworth, p. 5. ^ W. Wore. p. 782. 3 lb. p. 783; Chron. White Rose, p. Ixxxix. * W. Wore. p. 791. ' Blackstone, Comm. iv. 79; Hale, Placita Coronae, i. 115; Reeves, Hist. Engl. Lavyr, iv. 109 ; Stow, Chr. p. 430. ^ Baga de Secretis, 3rd rep. Dep. Keeper, App. ii. p. 213. Stacy is said to have been tortured and made to betray Burdett ; Cont. Croyl. p. 561 ; but of course before the trial. ^ Baga de Secretis, p. 214; Rot. Pari. vi. 173. Constitutional History. [chap. common and rival ambitions. The execution of lord Welles and Sir Thomas Dymock in 1470 was an extra-judicial murder \ That of Buckingham in 1483 was strictly legal. Henry IV in the beheading of Scrope and Mowbray, and Henry Y in the exe- cution of Cambridge, Scrope, and Grey, had set a fruitful example ; but if they sowed the wind their posterity reaped the whirlwind. No sound Notwithstanding the energy which marked the earlier years theliouse of Edward's reign, and the sincere endeavour, with which in York. ^j^y yig^y Qf }jjg character he must be credited, to restore domestic peace and enforce the law, the country enjoyed under him scarcely more security than it had under his predecessor. The statutes of liveries and maintenance, of labourers and artificers, the enactments against rioters and breakers of truce, were very insufficiently enforced ; the abuses which had sprung up in the more disturbed districts of the north were not put down by mere legislation, nor did they disappear even under the strong and crushing policy of repression ; more perhaps was done by the personal influence of Richard in Yorkshire than by any administrative reforms ; yet the evil remained. The surviving baronage had not learned wisdom from the extinction of its lost members, and the revived feudalism, typified by the practices of livery and maintenance, was, in all districts where Edward's Yorkist party was supreme, allowed its full play. Thus regard to ttie^^^^^^^^^^^^^^"^ Edward's attempts to maintain the law and baronage, crush the nobles, scarcely a month after his death the opposing factions of the court had rallied to themselves, under new designations but in real identity, the very same elements, forces and rival influences that had been arrayed against each other in the earlier struggle of the Roses. The private warfare of the great houses continues throughout with scarcely abated vigour. The very policy of Edward with regard to those houses was novel and hazardous; for he departed from the immemorial practice of his predecessors in order to crush the Measures of offender of the moment. Since the accession of the house extirpation. Plantagenct the kings had avoided enforcing perpetual forfeitures, except in extreme cases. The Mortimers, the ^ Above, p. 207. XVIII.] Conclusion. 285 Despensers, the Percies, the Montacutes, had all, after long or short terms of eclipse, been restored to their estates and dig- nities. Edward, whose own family owed its existence to this rule, was the first king who ostentatiously disregarded it. By bestow- ing the Percy earldom on John Neville, that of Pembroke on William Herbert, and that of Devon on Humfrey Stafford of Southwick, he laid down a principle of extermination against political foes which was foreign to English practice, and arrayed against himself the strongefct and best elements of feudal life, the attachment of the local populations to their ancient lords. That these particular features of the policy of the York Summary of kings warrant us in believing that they had a definite design of tKouse of assuming absolute power, it would be hazardous to afiirm.°^^°^^' They more probably imply merely that there was no price which they were not prepared to pay for power, and that they were restrained by no political principles or moral scruples from increasing their hold upon it. Edward IV in more than one point resembled Edward III, and cared more for the substance of power than for the open and ostentatious pretence of absolutism which had cost Eichard II his throne and life. Of Richard III we know little more than that he was both abler and more unscrupulous than his brother : for both it may be pleaded that we have to read their history through a some- what distorted medium. It may seem but a halting conclusion to assert that their attitude towards the constitution was opposed to that of the Lancaster kings rather as a contrary than as a contradictory. The Lancaster dynasty was not strong enough to maintain and develop the constitution; the York dynasty was strong enough to dispense with it but not to destroy it. The former acted on the hereditary traditions of the baronage, the latter on the hereditary traditions of the crown. The former conserved, without being able to reinvigorate it, all that survived of the early ennobling idea according to which the national life had thus far advanced. The latter contrast of anticipated, without definitely formulating it, much of the Lancaster, policy which was to mark the coming era, to grow stronger, and then to decay and vanish before the renewed force of 286 Constitutional History. national life; a force which had recovered strength during the compulsory rest and peace enjoyed under the Tudors, and awoke under the Stewarts to a consciousness of its identity with the earlier force which had guided the earlier develop- ment. So, to speak loosely and generally, the Lancastrian rule was a direct continuity, and the Yorkist rule was a break in the continuity, of constitutional development ; both alike were stages in the discipline of national life. Neither of the two tried its experiment in good days. The better element had to work in times of decay and exhaustion ; the worse element had the advantage of the new dayspring; for the revival of life which is the great mark of the Tudor period had begun under Edward IV. There was a disparity in both periods between national health and constitutional growth. General con- Thus then the acquittal of the house of Lancaster does not imply the condemnation of the house of York ; nor do those circumstances which might mitigate our condemnation of the latter, at all affect our estimate of the general character of the former. In tracing the history of both, the personal quali- fications of the rulers form a conspicuous element; and it might be an interesting question for imaginative historians to deteiTnine what would have been the result if Henry YI and Edward IV had changed places ; if it had fallen to the strong unscrupulous masculine Yorkist to work the machinery of a waning constitutional life, and to the weak incompetent Lan- castrian to maintain the doctrine, or to anticipate the first impulses, of personal absolutism. We need trouble ourselves with no such problem : the constitution had in its growth outrun the capacity of the nation ; the nation needed rest and renewal, discipline and reformation, before it could enter into the enjoyment of its birthright. The present days were evil ; we cannot look without pity and sorrow on that generation of our fathers whose virtues were exemplified in Henry of Lancaster and its strength in Edward of York. CHAPTER XIX. THE CLERGY, THE KING, AND THE POPE. 697. Problem of Church and State.— 698. Plan of the chapter.— 699. The clerical estate or spiritualty. — 700. Relations between the Pope and the Crown. — 701. Appointment of Bishops. — 702. The pall. — 703. Legations. — 704. Papal interference in election of bishops. — 705. Elections in the thirteenth century. — 706. The pope's claim to confer the temporalities. — 707. Papal provisions. — 708. Legislation on pro- visions.— 709. The compromise on elections. — 710. Elections to abbacies. — 711. The ecclesiastical assemblies. — 712. Ecclesiastical Legislation ; for the clergy by the clergy. — 713. By the clergy for the laity. — 714. By parliament for the clergy. — 715. Statute of provisors. — 716. Statute of praemunire. — 717. Legislation in parlia- ment for the national church. — 718. Ecclesiastical Taxation; by the pope. — 719. Taxation by convocation. — 720. Attempt in parlia- ment to tax the clergy. — 721. Of the clergy to tax the laity. — 722. Ecclesiastical Judicatuke; of the king's courts over the clergy. — 723. Of the court Christian ; in temporal matters. — 724. In dis- ciplinary cases. — 725. Over ecclesiastics.— 726. Appeals to Rome. — 727. Legislation against heresy. — 728. Social importance of the clergy. — 729, Intellectual and moral influence of the clergy. 697. The position of the clerical estate, and the importance importance of the rela- of ecclesiastical influence in the development of the Constitu- tions of the tion, have in the foregoing chapters presented themselves so the State, prominently, that a reader who approaches medieval history from an exclusively modern starting-point may well suppose that these subjects have already received more than a due share of attention. But there still remain many points of ecclesi- astical interest, which have a close bearing on national growth ; and without some comprehension of these it is vain to attempt to understand the transitional period which we have now reached, or to estimate the true value of the influences which 2,88 Constitutional History. [chap. the coming age of change was to contribute to the world's history. And some of these points require rather minute treatment. difficuitfesof ^^^^ careful study of history suggests many problems for the subject, -which it supplies no solution. None of these is more easy to state, or more difficult to handle, than the great question of the proper relation between Church and State. It may be taken for granted that, between the extreme claims made by the advocates of the two, there can never be even an approxi- mate reconciliation. The claims of both are very deeply rooted, and the roots of both lie in the best parts of human nature ; neither can do violence to, or claim complete supremacy over, the other, without crushing something which is precious. Nor will any universal formula be possible so long as different nations and churches are in different stages of development, even if for the highest forms of Church and State such a formal concordat be practicable. A perfect solution of the problem involves the old question of the identity between the good man and the good citizen as well as the modern ideal of a free church within a free state. Eeligion, morality, and law, overlap one another in almost every region of human action ; they approach their common subject-matter from different points and legislate for it with different sanctions. The idea of perfect harmony between them seems to imply an amount of subordination which is scarcely compatible with freedom ; the idea of complete dis- junction implies either the certainty of conflict on some if not all parts of the common field of work, or the abdication, on the one part or on tlie other, of some duty which according to its own ideal it is bound to fulfil. The church, for instance, cannot engross the work of education without some danger to liberty ; the state cannot engross it without some danger to religion ; the work of the church without liberty loses half its value; the state without religion does only half its work. And this is only an illustration of what is true throughout. The indi- vidual conscience, the spiritual aspiration, the moral system, the legal enactment, will never, in a world of mixed character, work consistently or harmoniously in all points. XIX,] Church and State. 289 For the historian, who is content to view men as they are Perfect and appear to be, not as they ought to be or are capable ofofreStSs becoming, it is no dereliction of duty if he declines to lay down Church and any definition of the ideal relations between Church and State. b?rilisecL^ He may honestly and perhaps wisely confess that he regards the indeterminateness and the indeterminability of those rela- tions as one of the points in which religion teaches him to see a trial of his faith incident to a state of probation. The practical statesman too may content himself with assuming the existence of an ideal towards which he may approximate, with- out the hope of realising it ; trying to deal equitably, but con- scious all the time that theoretical considerations will not solve the practical problem. Even the philosopher may admit that there are departments of life and action in which the working of two difierent laws may be traced, and yet any exact harmon- ising of their respective courses must be left for a distant future and altered conditions of existence. Nor does our perplexity end here. Even if it were possible Relations i- i- r foreign that in a single state, of homogeneous population and a fair churches ° . . . . add another level of property and education, the relations of relioion, mora- element of ^ ^ ' . difficulty, lity and law could be adjusted, so that a perfectly national church could be organised and a system of cooperation work smoothly and harmoniously, the fact remains that religion and morality are not matters of nationality. The Christian religion is a historical and Catholic religion ; and a perfect adjustment of relations with foreign churches would seem to be a necessary adjunct to the perfect constitution of the single communion at home. In the middle ages of European history, the influence of the Roman church was directed to some such end. The claim of supremacy made for the see of Rome, a claim which its modern advocates urge as vehemently as if it were part of the Christian Creed, was a practical assertion that such an adjustment was possible. But whether it be possible or no in a changed state of society, the sober judgment of history determines that, as the world is at present moved and governed, pei'fect ecclesias- tical unity is, like a perfect adjustment between Church and State, an ideal to be aimed at rather than to be hoped for. VOL. III. u Constitutional History, [chap. Practical 698. The historian who has arrived at such a conviction limitation of , p • i i i i • i i • i i • • i the subject cannot lairly be expected to indulge m much theorising ; and in this he ought not to be tempted to exalt his own generalisations into chapter. rank of laws. The scope of the present work does not admit of any disquisition upon the whole of this great subject ; nor need it be attempted. This being granted, our investiga- tion becomes limited to the practical points in which during the middle ages the national church of England, by its dealings with the crown and parliament, or by its dealings with the papacy, or by its own proper work unaffected by those influ- ences, connected itself with the growth of national life, charac- ter, and institutions. And the arrangement of the present chapter is accordingly a simple arrangement for convenience. There are four or perhaps five regions of constitutional life in which the work of the National Church comes into contact with the work of the State, or with that of the Koman See, or with both : these are the departments of constitutional machinery or administration, of social relations, morality, spiritual liberty, and possibly also of political action. Within the first of these departments come all questions of organisation, legislation, taxa- tion and judicature, with the subordinate points of property and patronage. The second, third and fourth will call for a brief and more speculative examination, as they affect national character and opinion, especially in relation to the period of transition and the approaching Reformation. The last depart- ment, that of political action, may be considered to have been treated in the preceding pages, not indeed completely, but in proportion to the general scale of our discussion. The English 699. An attempt has been made in preceding chapters of this in ttie^^^*^ book to illustrate, as they have come into the foreground, the ™i ^^^^'most important points of our early Church History. These points it is unnecessary to recapitulate ; it will be sufficient to assume that, in approaching the history of the medieval church, we may regard the spiritualty of England, the clergy or clerical estate, as a body completely organised, with a minutely consti- tuted and regulated hierarchy, possessing the right of legislating for itself and taxing itself, having its recognised assemblies, judi- XIX.] The Spiritualty. 291 cature and executive, and, altliougli not as a legal corporation Its corporate , 1 r. 1 ^character, holding common property, yet composed of a great number 01 persons each of whom possesses corporate property by a title which is either conferred by ecclesiastical authority, or is not to be acquired without ecclesiastical assent. Such an organisation entitles the clergy to the name of a * communitas,' although it does not complete the legal idea of a corporation proper. The spiritualty is by itself an estate of the realm; its leading An e^te of members, the bishops and certain abbots, are likewise members of the estate of baronage ; the inferior clergy, if they possess lay property or temporal endowments, are likewise members of the estate of the commons. The property which is held by Its property. individuals as officers and ministers of the spiritualty is either temporal property, that is, lands held by ordinary legal services, or spiritual property, that is, tithes and oblations. As an estate Headship in ^ . . . . . things tem- of the realm the spiritualty recognises the headship of the king, porai and as a member of the Church Catholic it recognises, according to the medieval idea, the headship of the pope. Its own chief ministers, the bishops under their two metropolitans and under the primacy of the church of Canterbury, stand in an imme- diate relation to both these powers, and the inferior clergy have through the bishops a mediate relation, while as subjects and as Catholic Christians they have also an immediate relation, to both king and pope. They recognise the king as supreme in matters temporal, and the pope as supreme in matters spiritual ; but there are questions as to the exact limits between the spiritual and the temporal, and most important questions touching the precise relations between the crown and the papacy. On me- dieval theory the king is a spiritual son of the pope ; and the pope may be the king's superior in things spiritual only, or in things temporal and spiritual alike. 700. The temporal superiority of the papacy may be held to Relations 1 J ^ • . , , ^ . . . , .between the depend upon two principles : the first is embodied in the general crown and proposition asserted by Gregory YII and his successors that the ^ P^^^''^^^' pope is supreme over temporal sovereigns : the spiritual power is by its very nature superior to the temporal, and of that spiritual power the pope is on earth the supreme depositary. This u 2 293 Constitutional History, [chap. proposition may be accepted or denied, but it implies a rule equally applicable to all kingdoms. The second principle involves the claim to special superiority over a particular kingdom, such as was at different times made by the popes in reference to Eng- land, Scotland, Ireland, Naples, and the empire itself, and turns upon the special circumstances of the countries so claimed. These two principles are in English history of unequal import- ance : the first, resting upon a dogmatic foundation, has, so far as it is recognised at all, a perpetual and semi -religious force ; the latter, resting upon legal assumptions and historical acts, has Questions of more momentary prominence, but less real significance. The dependence claim of the pope to receive homage from William the Conqueror, kingdom on on whatever it was based, was rejected by the kin^, and both he the pope V u o and William Rufus maintained their right to determine which of the two contending popes was entitled to the obedience of the English church ^. Henry II, when he received Ireland as a gift from Adrian IV, never intended to admit that the papal power over all islands, inferred from the Donation of Constantine, could be understood so as to bring England under the direct authority of Kome; nor when, after Becket's murder, he de- clared his adhesion to the pope, did he contemplate more than a spiritual or religious relation ^. John's surrender and subsequent ^ On the answer of the Conqueror to Gregory's demand of fealty see vol. i. p. 285; ' fidelitatem facere nolui nec volo, quia nec ego promisi nec antecessores nieos antecessoribus tuis id fecisse comperio.* Henry I writes to Paschal II ; ' beneficium quod ab antecessoribus meis beatus Petrus habuit, vobis mitto ; eosque honores et earn obedientiam quain tempore patris mei antecessores vestri in regno Angliae habuerunt tempore meo ut habeatis volo, eo ^^delicet tenore ut diynitates usus et consuetudines quas pater meus tempore antecessorum vestrorum in regno Angliae habuit, ego tempore vestro in eodem regno nieo integre obtineam. Notumque habeat Sanctitas vestra quod nie vivente, Deo auxiliante, dignitates et usus regni Angliae non minuentur. Et si ego quod absit in tanta me dejectione ponerem, optimates mei, immo totius Angliae populus, id nullo modo pateretur. Habita igitur, carissime pater, utiliori deliberation e, ita se erga nos moderetur benignitas vestra, ne, quod invitus faciam, a vestra me cogatis recedere obedientia ; ' Foed. i. 8 ; Bromton, c. 999 ; Foxe, Acts &c., ii. 163. ^ The curious expression found in a letter addressed in Henry's name to Alexander III, among the letters of Peter of Blois, has been understood to imply that the king on the occasion of his absolution placed the kingdom in that feudal relation which was afterwards created by John's submission .* ' Vestrae jurisdictionis est regnum Angliae et quantum ad feudatarii juris obligationem vobis duntaxat obnoxius teneor et astringor ; ' 0pp. ed. Busaeus, XTX.] Papal Supremacy. 293 homage fii*st created the shadow of a feudal relation, which was respected by Henry III, but repudiated by the parliaments of Edward I and Edward III ^ and passed away leaving scarcely a trace under the later kings. The ffreat assumption of universal Tlie general ° . . claims of supreraacv, with the resistance which it provoked, and the spiritual ^ _ • _ ^ ^ ^ _ / siipreniacy evasions at which it connived, gives surpassing interest to for the . . , . . popedom, another side of medieval history. This claim however m its direct form, that is, in the region of secular jurisdiction, the assertion that the pope is supreme, so that he can depose the king or release the subject from his oath and duty of allegiance, does not enter into this portion of our subject. The discussions which took place on the great struggle between John XXII and Lewis of Bavaria had their bearings on later history, but only affect England, in common with the Avignon papacy and the great schism, as tending to shake all belief in the dogmatic assumptions of Rome. The parliament of 1399 declared that the crown and realm of England had been in all time past so free that neither pope nor any other outside the realm had a right to meddle therewith ^. The claim of spiritual supremacy, within the region of spiritual jurisdiction and property, will meet us at every turn, but the history of its origin and growth belongs to an earlier stage of ecclesiastical history. The idea of placing in one and the same hand the direct Theory of . . 1 iinitiiig control of all causes temporal and spiritual was not unknown temporal 1 • 1 n mi > • • 1 1 • spiritual m the middle ages. The popes spiritual supremacy being sovereignty. granted, complete harmony might be attained not only by making the pope supreme in matters temporal, but by dele- gating to the king supremacy in matters spiritual. Before the struggle about investiture arose, Sylvester II had emj^owered p. 245. It is possible that the papal legates were instructed to obtain such a concession from Henry, as in the Life of Alexander the king is said to swear ' quod a domino Alexandre papa et ejus catholicis successoribus recipienius et tenebimus regnum Angliae.' But no such concession is mentioned in any contemporary account of the purgation, nor could it have been unknown to English historians if it had really taken place. The letter of Peter has of course no claim to be authoritative and may be only a scholastic exercise. The matter is however confessedly obscure. See Robertson, Life of Becket, p. 303, and the authorities there quoted. ^ Vol. i. p. 522 ; vol. ii. pp. 152, 415. ^ Vol. ii. pp. 504, 505. 294 Constitutional History. [chap. legation- newly-made king Stephen of Hungary to act as the papal representative in regulating the churches of his kingdom ^ ; and after that great controversy had begun, Roger Wiscard, as duke of Sicily, received from Urban II ^ a grant of hereditary eccle- siastical jurisdiction, which, under the name of the * Sicilian monarchy,' became, in the hands of his successors, a unique Story of the feature of the constitution of the kingdom. It is not improb- o^^ed to able that early in the Becket controversy such a solution of the Henry II. jifgculties under which Alexander III was labouring might have been attempted in England : certainly the contemporary chroniclers believed that Henry II, when he was demanding the legatine office for Roger of York, received from the pope an offer of the legation for himself^. But there were not wanting men who would try to persuade him that even without any such commission he was supreme in spiritual as well as in temporal matters. Reginald Fitz Urse, when he was disputing with Becket just before the murder, asked him from whom he had Supremacy the archbishopric % Thomas replied, ' The spirituals I have from claimed for^ God and my lord the pope, the temporals and possessions from my lord the king.' * Do you not/ asked Reginald, * acknow- ledge that you hold the whole from the king?' ' No,' was the prelate's answer ; ' we have to render to the king the things that are the king's, and to God the things that are God's*.' The words of the archbishop embody the commonly received idea ; the words of Reginald, although they do not represent the theory of Henry II, contain the germ of the doctrine which was formulated under Henry VIII °. ^ ' Ecclesias Dei, una cum populis nostra vice ei ordinandas relinqui- mus.' See the Bull dated March 27, 1000; in Cocquelines, Bullar. i. 399 ; Gieseler, ii. 463. 2 July 5, 1098; on the great question of the 'Sicilian Monarchy' see Giannone. Hist. Naples, 1, x. c. 8 ; Mosheim, Church Hist. ii. p. 5 ; Gieseler, vol. iii. p. 33. The words are ' quae per legatum acturi .sumus per vestram industriam legati vice exhiberi volumus, quando ad vos ex latere noslro miserimus.' 5 Hoveden, i. 223: 'ad petitionem clericorum regis concessit dominus papa ut rex ipse legatus asset totius Angliae.' Cf. Gervase, c. 1 388. As a matter of fact it was the legation of tlie archbishop of York that was in question ; see Robertson, Bucket, pp. 105, 106. * W. Fitz Stephen, S. T. C. i. 296. ^ On the meaning of the word spiritual especially in connexion with the him XIX.] Appointment of Bishops. 295 701. Whatever was the precise nature of the papal supre- Dig:nity of t • 1 T • • 1 • P I • .archbishops macy, the highest dignity m the hierarchy of the national and bishops, church was understood to belong to the church of Canterbury, of which the archbishop was the head and minister; he was * alterius orbis papa ; ' he was likewise, and in consequence, the first constitutional adviser of the crown. The archbishop of York and the bishops shared, in a somewhat lower degree, both his spiritual and his temporal authority; like him they had large estates which they held of the king, seats in the national council, preeminence in the national synod, and places in the general councils of the church. The, right of appointing the Right of bishops and of regulating their powers was thus one of the first to sees!°^^^* points upon which the national church, the crown, and the papacy were likely to come in collision. The cooperation of clergy and laity in the election of bishops before the Conquest has been already illustrated^. The struggle between Henry I and Anselm on the question of investiture terminated in a compromise which placed the election in the hands of the chapters of the cathedrals, the consecration \n that of tlie metropolitan and comprovincial bishops, and the bestowal of temporal estates and authority in the hands of the kinff ^. Stephen at his accession confirmed to the churches the Canonical ~ ^ riffht con- ricrht of canonical election^; Henry II and Richard observed the firmed by „ , -r 1 1 1 1 1 11 r-^^ Stephen and form; and John, shortly beiore he granted the great Charter, John, issued as a bribe to the bishops a shorter charter confirming oath taken by the bishops to the crown see an essay by Mr. J, W. Lea, published in 1875; 'The bishops' oath of homage.' Under spiritualia are really included three distinct things, which may be described as (i) spiritualia characteris vel ordinis — the powers bestowed at consecration; (2) spiritualia ministerii vel jurisdictionis, the powers which a bishop i-eceives at his confirmation and in virtue of which he is supposed to act as the servant or representative of his church, which guards these spiritualities during the vacancy ; (3) spiritualia beneficii, the ecclesiastical revenue arising from other sources than land; which 'spiritualia' he acquires together with the temporalities on doing homage. These last are the only spiritualia which he holds of the ci-own, the first and second never being iti the royal hands to bestow. And these are often both in legal and common language included under the term temporalities. 1 Vol. i. pp. 134, 135. 2 Flor. Wig. A.D, 1107 ; Eadmer, lib. iv. p. 91; see above, vol. i. pp. 316, 317- 2 Select Charters, p. 115 ; Statutes, i. 3 ; above, vol. i. p. 321. 2g6 Constitutional History. [chap. the right of free election, subject to the royal licence and ap- proval, neither of which was to be'withheld without just cause ^. This charter of John may be regarded as the fullest and final recognition of the canonical right which had been maintained as the common law of the church ever since the Conquest ; which had been ostensibly respected since the reign of Henry I ^ ; and which the crown, however often it evaded it, did not henceforth attempt to override. The earlier practice, recorded in the Con- stitutions of Clarendon^, according to which the election was made in the Curia Hegis, in a national council, or in the royal chapel before the justiciar, a relic perhaps of the custom of nominating the prelates in the Witenagemot, was superseded decSs'^^ by this enactment : the election took place in the chapter-house of the cathedral, and the king's wishes were signified by letter or message, not as before by direct dictation. When the elected prelate had obtained the royal assent to his promotion, the election was examined and confirmed by the metropolitan ; and the ceremony of consecration completed the spiritual character Institution of the bishop. On his confirmation the elected prelate received of spiritual!- .... . . . . tempomli spiritualities of his see, the right of ecclesiastical jurisdiction ties. in his diocese, Avhich during the vacancy had been in the hands of the archbishop or of the chapter * ; and at his consecration he made a profession of obedience to the archbishop and the metro- Sd^rilty P'^^^*^^ church. From the crown, before or after consecration, he received the temj^oralities of his see, and thereupon made to the king a promise of fealty answering to the homage and fealty of a temporal lord ^. 702. It was not until the thirteenth century that the popes ^ Select Charters, p. 280; Statutes, i. 5; Foed. i. 126, 127 : this charter was confirmed by Innocent III and also by Gregory IX. 2 Bishop Roger of Salisbury is said to have been the first prelate ca- nonically elected. 3 Select Charters, p. 133. * The question to whom the custody of the spiritualities belonged during the vacancy of the see was disputed between the archbishop and the chapters, and was settled in the course of the thirteenth century by separate agreement with the several cathedral bodies. The archbishops moreover regarded the restitution of spiritualities befoi-e consecration as an act of grace; see Gibson, Codex, p. 133. ^ See above, vol. i. p. 357, and the forms of oath given by Mr. Lea in his essay mentioned above, p. 294. XIX.] The Tall. 297 began to interfere directly in the appointment to the suffragan Papal sees. Over the metropolitans they had long before attempted to with the exercise a controlling influence, in two ways : by the gift of the SFmetrS^"* pall, and by the institution of legations. The pall was a sort of collar of white wool, with pendent strips before and behind, embroidered with four purple crosses ^. The lambs from whose wool it was made were annually presented by the nuns of S. Agnes, blessed by the pope, and kept under the care of the apostolic subdeacons ; and the pall, when it was ready for use, was again The Pall. blessed at the tomb of S. Peter and left there all night. It was presented to the newly-appointed metropolitans at first as a compliment, but it soon began to be regarded as an emblem of metropolitan power, and by and by to be accepted as the vehicle by which metropolitan power was conveyed. The bestowal oforigmof the pall was in its origin Byzantine, the right to wear some such portion of the imperial dress having been bestowed by the emperor on his patriarchs : in the newer form it had become a regular institution before the foundation of the English church ; S. Gregory sent a pall to Augustine, and so imj^ortant was the matter that, even after the breach with Rome, archbishop Holde- gate of York went through the form of receiving one from Cranmer ^. Until he received the pall the archbishop did not, its import- ... ance. except under very pecuhar circumstances, venture to consecrate bishops^. On the occasion of its reception he had to swear obedience to the pope in a form which gradually became more stringent ^ ; in early times he undertook a journey to Rome for ^ See Maskell, Monumenta Ritualia, iii. p. cxxxv ; Alban Butler, Lives of the Saints, Jan. 21, and June 8; Deer. p. i. cliit. 100 ; Greg, IX, lib. ii. tit. 6. c. 4. ^ The ceremony used on the occasion is printed from Cranmer*s Register in the Gentleman's Magazine for November i860, p. 523. The oath taken by Holdegate on the occasion is printed in the Concilia. The oatb taken by Cranmer and his protest at the same time are given in Strype's Memorials of Cranmer, Appendix, nos. v and vi. ^ Thus in 1382 archbishop Courtenay was present at the consecration of the bishops of London and Durham, but did not lay on his hands, because he bad not receive! the pall; Ang. Sac. i. 121. This was not however required by the canon law; Greg. IX, lib. i. tit. 6. c. 1 1. The occasions on which the archl^ishops received the pall will be found in my Registrum Sacrum Anglicanura, pp. 140, 141. * The custom is said by Gieseler to appear first in 1073 ; see Eccl. Hist, (ed. Hull), vol, iii. p, 168, where several forms are given. The oath taken 298 Constitutional History. [chap. The legation Rarity of legations to England before the Xorman Conquest. Resistance to legatine authority. the purpose ; but after the time of Lanfranc it was generally- brought by special envoys from the apostolic see, and a great ceremony took place on the occasion of the investiture. This transaction formed a very close link between the archbishop and the pope, and, although the pall was never refused to a duly- qualified candidate, the claim of a discretion to give or refuse in fact attributed to the pope a power of veto on the elections made by national churches and sovereigns. 703. The bestowal of legatine authority on the archbishops came into use much later. England before the Conquest had been singularly exempt from direct interference. The visits of the archbishops to Rome, to receive the pall in person, seem to have been regarded as a sufficient recognition of the dignity of the apostolic see ; there were no heresies to require castigation from the central court, and the local and political quarrels of the kingdom were too remote from papal interests to be worth the trouble of a legation. In tlie earlier days an occasional envoy appeared, either to strengthen the missionary efforts of the native church, or to obtain the assent of the Eng- lish prelates to the enactments of Koman councils ; and in the reign of the Confessor a legation had been sent by Alexander II probably with a view of remedying the evils caused by the adhesion of Stigand to the antipope Benedict X. The visita- torial jurisdiction which Gregory VII attempted to exercise had been resisted by the Conqueror, who, although in 1070 he availed himself of the presence of the legates to displace the hos- tile bishops, had formally laid down the rule that no legate should be allowed to land in England unless he had been appointed at the request of the king and the church ^. Nor was the arrival by archbishop Neville of York in 1374 is printed in the Registrum Palatinum, iii. 524-528. See also Foxe, Acts and Monuments, ii. 261. ^ See Ealmer, lib. v. p. 118; where the legation of abbot Anselm is rejected by the clergy and magnates; and lib. vi. p. 138, where Henry I declares that he will not part with the privileges which his father had obtained from the holy see, 'in quibus haec, et de raaximis una, erat quae regnum Angliae lilicrum ab omni legati ditione constituerat.' Cf. Flor. Wig. ii. 70. Lanfranc received authority from Alexander II to settle two causes left undeterminerl by the legates m 1070 ; ' nostnie et apostolicae auctoritatis vicem;' Wilk. Cone. i. 326; Foed. i. i. See Gieseler, Eccl. Hist. (ed. Hull), iii. 184. XIX.] Zegatio7i of the ArcJilishojos. 299 of such an officer more welcome to the clergy. Anselm had to remonstrate with Paschal II for giving to the archbishop of Vienne legatine power over England, and in doing so to assert that such authority belonged by prescriptive right to the see of Canterbury^. The visit of John of Crema, who held a legatine council at London in 11 25, was regarded as an insult to the church of Canterbury, and as soon as he had departed the archbishop, William of Corbeuil, went to Rome, where he ob- tained for himself a commission as legate with jurisdiction over the whole island of Britain 2. The precedent thus set was an The lega- important one : the placing of the legatine power, tiiat is, the mitted to visitatorial jurisdiction of the Roman see as then defined, in the bishop of hand of tlie metropolitan of Canterbury, at once forced the kings, who had refused to receive the legate a latere, to admit the supreme jurisdiction of the pope when vested in one of their own coun- sellors ; it also had the effect of giving to the ordinary metro- politan jurisdiction the appearance of a delegated authority from Rome ^. On the death of William of Corbeuil, bishop Henry of Alberic of Ostia was sent on a mission of reform, and on his Theobald, departure Henry of Blois, bishop of Winchester, obtained thcBecket. office of legate in preference to the newly-elected archbishop Theobald*. The death of pope Innocent II brought bishop Henry's legation to an end, and the influence of Theobald prevented the succeeding popes from renewing it. In 1 1 50 Eugenius III ventured to bestow the office on Theobald, who retained it as long as he lived. Thomas Becket, who succeeded him, had not obtained the commission before he quarreled with ^ See Eadmer, lib. iii. p. 58 ; Anselm Epistt. iv. 2. Anselm says, ' Quando Romae fui ostendi praefato domino papae de legatione Romana super regnum Angliae, quam ipsius regni homines asseverant ab antiquis temporibus usque ad nostrum tempus ecclesiam Cantuariensem habuisse . . . Lega- tionem vero quam usque ad nostrum tempus, secundum praedictum testi- monium Ecclesia tenuerat, mihi dominus papa non abstulit.' 2 See the Bull of Honorius II, dated Jan. 25, 1126 ; Ang. Sac. i. 792 ; of. Cont. Fl. Wig. ii. 84. ^ In 1439 the clergy had to petition that the acts of the spiritual courts might not be so construed as to bring them under the statute of prae- munire ; Wilk. Cone. iii. 534. * March i, 1139; W. Malmesb. Hist. Nov. ii. § 22; John Salisb. ep. 89. 300 Constitutional History. [chap. the king; and Henry, in consequence of that quarrel, exerted himself to such purpose that the pope nominated as legate arch- bishop Roger of York^. But two years later, when the pope was stronger and Henry had put himself in the wrong, Thomas received the commission ^, under which he proceeded to anathe- matise his opponents. The next two archbishops, Richard and Le/ration of Baldwin, were made leo^ates as matter of course. AVhen Bald- Wilham ' ° ^ ^ Longchamp. ^yin went to the Crui-ade, William Longchamp obtained the office, which he retained until the death of the pontiff" who appointed him^. Hubert Walter, two years after his appoint- ment as archbishop, w^as made legate*, and had to drop the Lepitionof title on the death of Celestine III. Lanoton was formally Langton. , . . appointed by Innocent III, but was hampered in the exercise of his duty by Gualo and Pandulf, until* in 1221 he obtained a promise from Honorius III that as long as he lived no other Regular leofate should be sent. From that date the archbishops seem legation ^ _ ^ ^ ^ ^ ^ of the to have received the ordinary leo^atine commission as soon as their archbishops. . . election was recognised at Rome; they were 'legati nati'^; and the title of legate of the apostolic see was regularly given to them in all formal documents. But this was not understood as precluding the mission of special legates, or legates a latere^ who represented the pope himself and superseded the authority Occasional of the resident legates. Such were, in the thirteenth century, Otho and Othobon and that cardinal Guy Foulquois who as- sisted Henry III against Simon de Montfort^. Their visits were either prompted by the king when he wanted support against the nation, or were forced on king and nation alike by the necessities of foreign politics. The history of the fifteenth century gave a renewed pro- minence to the office. Martin V had revived the policy of Gregory VII, and, relying on the doctrine that all bishops are but servants of the see of Rome, had insisted that 1 Feb. 27, 1 164. 2 _^pj. 3 i_ p ^g8_ * Mar. 18, 1 195 ; Hoveden, iii. 290. ^ See Wilk. Cone. iii. 484. ^ The full list of papal legations sent to England during the middle ages would be a very long one. It is necessary to distinguish carefully between the mission of mere occasional envoys such as troubled England in the reign of Henry III and the regular plenipotentiary legates such as Otho and Othobon. XIX.] The Legatlne Commission. 301 Chichele should procure the repeal of the Statutes of Pro- visors^. Cliichele had not the power to effect this, and the Chichele 2Jope, notwithstanding his professions of obedience, believed with sus- that he had not the will. He issued letters therefore in which hS^iegation? he suspended the archbishop from his legatine office, but Chi- chele protested, and the bulls were seized by royal order ^. Henry Beaufort, bishop of Winchester, was made legate for the The ie?a- Bohemian war, and his presence in England during the con- the fifteenth tinuance of the commission was resented by Chichele as ^n^^^^^'*'^' assumption of dangerous power. Gloucester protested in the king's name against his reception as legate ^. But his legation did not supersede the ordinary jurisdiction. After the death of Chichele the old rule was observed, and the archbishop of Canterbury, being generally a cardinal, fulfilled in some measure the functions of a legate a latere as well. Stafford, Dene, and Warham were not cardinals, but ordinary legates. It was the Its miport- , ance in the legatine commission of Wolsey, unexampled in its fulness and case of importance, which, under the disingenuous dealing of Henry YIII, who had applied for the commission and granted licence to accept it, was made the pretext of his downfall, and which, after involving the whole English church in the penalties of praemunire, resulted in the great act of submission which made the king, ' so far as is allowed by the law of Christ,' supreme head on earth of the Church of England. The combination of the ordinary metropolitan authority with the extraordinary ^ The lonfr coiTespondence on this point and other questions in dispute is printed by Wilkins in the Concilia, iii. 471-486. There was some under- hand work going on at the time, probably connected with the Beaufort and Gloucester quarrel. ^ Wilk. Cone. iii. 484, 485. The archbishop appealed against the papal suspension to the decision of a general council, Mai'ch 22, 1427 ; and royal orders for seizing the bulls were issued March i ; ib. p. 486. The sus- pension does not seem to have taken effect. ^ The protest of Richard Caudray, the king's proctor, against Beaufort's visit to England as legate in 1428 is printed in Foxe, Acts and Monu- ments, iii. 717. He asserts that the kings of England ' tam speciali privilegio quani consuetudine laudabili legitimeque praescripta, necnon a tempore et per tempus cujus contrarii memoria hominum non existit pacifice et inconcusse observata, sufficienter dotati legitimeque muniti, quod nullus apostolicae sedis legatus venire debeat in regnum suum Angliae aut alias suas ten^as et doniinia nisi ad regis Angliae pro tempore existentis vocationem, requisitionem, invitationem, seu rogatum.' 3oa Constitutional History. [chap. Legation of the archbishops of York. Interference of the popes in episcopal appoint- ments. Origin in disputed legatine authority, having thus for ages answered its purpose of giving supreme power to the pope, and substituting an adven- titious source of strength for the spontaneous action of the national church, brought about a crisis which overthrew the papal power in England, and altered for all time to come the relations of Church and State. Ttie dignity of the pall and the ordinary commission of legate were of course only given to the primates ; the archbishops of York, from the time of Thoresby, who was made legate in the year 1352, down to the reformation, received the legatine commission as well as the pall ^. 704. The attempts of the pope, parallel with the attempts of the king, to obtain a decisive voice in the appointment of suffragan bishops, have a history which brings out other points of interest, some of which are common to the archiepiscopal sees also. The papal interference in these appointments might be justified either by supposing the confirmation of an undisputed election to be needed, or by the judicial character of the apostolic see in cases of dispute or appeal. If we set aside the instances of papal interference which belong to the missionary stage of Anglo- Saxon church history, the first cases in which direct recourse to Kome was adopted for the appointment of bishops were those of Giso of Wells and Walter of Hereford. These two prelates, having doubts about the canonical competency of archbishop Stigand, went to Nicolas II in 1061, and received consecration at his hands ^. In this case the actual nomination had been made at home, and the question at issue was one which might fairly be referred to the arbitration of the apostolic see. In 1 1 19 Calixtus II, taking advantage of the dispute between archbishop Ralph and the king on one side, and Thurstan the archbishop elect of York on the other, relative to the obedience due by York to Canterbury, consecrated Thurstan in opposition to both king and primate ^ ; but here the pope believed himself ^ The legatine commission of the arclibishop of York was perhaps a result of the settlement of the great dispute between the two primates as to the right to bear their crosses erect in each other's province ; see Raine, Lives of the Archbishops of York, i. 456, 457. 2 Chr. Sax. a.d. 1061. ^ Qrd. Vit. lib. xii. c 21. XIX.] Disputed Elections of Bis/iojjs. to be assertiDg the cause of justice, and, after some delay, the opposing parties acquiesced in the decision : there was no question as to the appointment, only as to the conditions of con- secration. As soon however as the clergy under Stephen had MuitipUca- . tion of obtained a real voice in the election of the bishops, questions disputes, were raised which had the effect of referring numberless cases to the determination of the pope as supreme judge. The king's right of licencing, and of assenting or withholding assent to, the election, was backed up by his power of influencing the opinion of the electors. In every chapter he had a party who ^f^p^^^^^^ would vote for his nominee, if he cared to press one upon them ; the shadowy freedom of election left room for other competition besides ; the overt exercise of such royal influence, the frequent suspicion of simony, and the various methods of election by inspiration, by compromise, or by scrutiny \ were fruitful in occasions for appeal. The metropolitan could quash a disputed election, but his power of confirming such a one was limited by this right of appeal^. Under Stephen, who was seldom strong enough to force his candidate on the chapters^, the royal in- fluence was sometimes set aside in favour of the papal, and was more than once a matter of barter. The election of archbishop Disputed . cases carried Theobald was transacted under the eye of the legate Alberic, to Rome, who consecrated him * ; the election of Anselm, abbot of S. Edmund's, to the see of London, was opposed by the dean of S. Paul's and his kinsmen, and, after being discussed at Rome, was quashed by the same legate ^ ; archbishop William of York, the king's nephew, was after consecration deposed by Eugenius III, and Henry Murdac, abbot of Fountains, appointed in his stead " ; Gilbert Foliot, bishop of Hereford, was consecrated by the archbishop when in exile, on the nomination of the Angevin ^ See vol. i. p. 635. ^ This was ruled by Alexander IV in 1256 ; Ang. Sac. i. 637. 2 In 1136 Stephen restored the possessions of the see of Bath to the bishop elect, 'canonica prius electione praecedente ; ' Foed. i. 16. * R. Diceto, i. 252. 5 lb. i. 2^0, 251. ^ John of Hexham (ed. Raine), p, 154. William was deposed because he had been elected 'ex ore regis' and had been consecrated in defiance of an appeal; ib. p. 142. 304 Constitutional History, [chap. Case of the election of ]iecket. Appeals carried to Rome. party opposed to Stephen ^ ; Kichard de Belmeis was confirmed in the see of London hy the pope, but, in order to obtain royal recognition, hampered himself with debt which hurried him to his grave ^; Hugh de Puiset, whose election to Durham was quashed by his metropolitan, sought and found consecration at Rome ^. Matters were different under Henry II, who failed however in his attempts to prevent appeals to Rome on this point ; the election of Thomas Becket to Canterbury was effected without opposition, the papal confirmation and gift of the pall being apparently a matter of course quite as much as the consent of the monks and the bishops ; but after Becket's death and the confusion which his long struggle had caused, Henry found him- self obliged to seek at Rome a decision of the critical questions which arose as to the episcopate. To the consecration of the prelates chosen in 1 1 7 3 objections were raised in every quarter ; the canonical competency and the formal completeness of the election were denied on the clerical side ; the young king Henry opposed his father's acts of licence and assent * ; and although Alexander III confirmed the elections, neither king nor chap- Position of ters (gained strenj^th by the decision. At the end however of affairs at the ^ i i . closeonhe the twelfth century the relations of the three parties were suf- ceutury. ficiently well ascertained. The royal licence and assent were indispensable ; the elective right of the chapters and the archi- episcopal confirmation were formally admitted ; and the power of the pope to determine all causes which arose upon disputed questions was too strongly founded in practice to be contro- verted by the crown. This power was however, in the case of the suffragans, an appellate jurisdiction only. It was the arch- bishops alone who required papal confirmation and recognition by the gift of the pall ; nor, although Paschal II had claimed a right to take cognisance of and to confirm all elections, was the metropolitan authority of Canterbury and York as yet over- ruled. The claim of the bishops to take part in the election of the archbishops, which was occasionally enforced during the ^ Gervase, c. 1 364. ^ See R. Diceto, vol. i. pref, pp. xxiv, xxv. * E. Diceto, i. 368, 369; Gervase, cc. 1425 sq. 5 Gervase, c. I375. XIX.] Papal Appointments, 305 twelfth century, was rejected by Innocent III, and was never raised afterwards ^. 705. The history of the thirteenth century is a long record Proceed- of disputes, beginning with the critical struggle for Canterbury innocent II. after the death of Hubert Walter. But even before this Innocent III had asserted, in the case of a suffragan see, a new principle of justice^. In 1204, when the see of Win- chester was vacant, the chapter was divided between the dean of Salisbury and the precentor of Lincoln ; the pope at the king's request consecrated Peter des Roches, and laid down the rule that where the electors have knowingly elected an unworthy person they lose the right of making the next elec- tion. The appointment of Langton to Canterbury was not Important - , , , . 1 1 , 1 1 • , . 1 • , • T • point in tie brought under this rule, but had its special importance m this : case of hitherto the pope had done no more than reject unfit candidates ^^"^^^^ ' or determine the validity of elections ; now he himself proposed a candidate, pushed him through the process of election, and confirmed the promotion although the royal assent was with- held. It was seen to be an extreme measure, but it served in tlie case , ^ T ,-.111-1 . • of Richard, as a precedent. On Langton s death the king, by promising a large grant of money to the pope, prevailed on him to quash the election made by the monks, to keep the appoint- ment to himself, and to nominate the person whom the king ^ Of the e;irly archbishops after the Conquest, Lanfranc and Anselm were nominated by the kings with some show of acceptance in the national council ; Ralph was chosen by the prior and monks and accepted by the king and bishops ; William of Corbeuil was chosen by the monks out of four proposed by the bishops to the king against the wish of the monks ; Theobald was chosen by the bishops and the monks in national council ; Becket by the bishops, monks, and clergy of the province, in the presence of the Justiciar. After Becket's death, Roger al^bot of Bee was chosen by the bishops, but decKned the election ; after some delay the monks chose two candidates, Odo their prior and Richard pripr of Dover ; the bishops selected the latter, and he was confinned by the pope. Baldwin, his suc- cessor, was chosen first by the bishops, Dec. 2, 1184, and then by the monks, Dec. 16, in separate elections, both under royal pressure. Reginald Fitz Jocelin was chosen by the monks in opposition to the bishops and to the king's nomination ; Hubert Walter by the monks on Saturday May 29, 1 193, and by the bishops on the follomng Sunday, each party claiming the right and shutting their eyes to the act of the other. On Hubert's death the bishops acting with the king chose John de Gray, the monks their subprior. At Langton's appointment the strife ended ; see vol. i. p. 520. 2 Deer. Greg. IX, lib. i. tit. 6. c. 25. VOL. IIL X 3o6 Constitutional History, [chap. recommended ^ This Gregory IX did ' ex plenitudine potestatis,' and thus by Henry's connivance re-asserted the principle laid down by Innocent in 1204, that, in case of an election quashed upon appeal, the judge has an absolute right of appointment. Archbishop Edmund was appointed in 1234 in the same sum- mary way in which Langton had been chosen in 1207 ^; Boni- face was elected by the chapter at the earnest petition of the king ^ ; Kilwardby and Peckham * were nominated by the pope * ex plenitudine potestatis,' the king exacting, in the former case at least, an acknowledgment, on the restitution of the tem- poralities, that the recognition was a matter of special favour and not to be construed as a precedent ^ In the case of Peckham he introduced into the writ of restitution a clause saving his own rights ^. Robert Winchelsey was appointed Wmchelsey. ^j^]^ unanimous consent of all parties'^. Whilst the primacy was thus made the prize of the stronger and more pertinacious claimant, the appointments to the bishop- Case of .Edmund. Cases of Kilwardby and Peckham, Case of * Vol. ii. p. 42 ; M. Paris, pp. 255, 256. ^ The pope quashed three elections made by the monks and then em- powered them to elect Edmund ; M. Paris, pp. 385, 386. 3 M. Paris, pp. 555, 556. * On the death of Boniface, William Chillenden, prior of Canterbury, was elected, and renounced the election, whereupon the pope nominated Kilwardby by provision; Ann. Winton. p. 112; Waverl. p. 379. KU- wardby was made a cardinal in 1278 ; the monks thereupon elected bishop Burn ell the chancellor. The pope provided Peckham, and Burnell, whose election was quashed, did not further contest the point. See Pr3'nne, Records, iii. •214. ^ The words are very important : ' Cum, ecclesiis cathedralibus in regno Angliae viduatis, et de jure debeat et solet de consuetudine provideri per electionem canonicam ab hiis potissime celebrandam coUegiis, capitulis et personis ad quas jus pertinet eligendi, petita tamen prius ab illustri rege Angliae super hoc licentia et optenta ; et demum celebrata election e persona electi eidem regi deben t praesentari, ut idem rex contra personam ipsam possit proponere si qui I rationabile habeat contra eam, videtur eidem domino regi et suo consilio quod sibi et ecclesiae, cujus ipse patronus est pariter et defensor, fiat praejudicium in hac parte, praecipue si res trahitur in aliis ecclesiis Angliae in exemplum, quod summus pontifex hiis omissis in hoc casu, ubi nec in materia nec in forma electionis inventum est fuisse peccatura, nec in ipsius litteris expressum, potestatem sibi assumpserit ipsi ecclesiae providendi,' &c ; Prynne, Records, iii. 122*. * Prynne, Records, iii, 223. ' The election of Winchelsey, one of the very few which the popes allowed to be canonical, is described at length in the bull of confirmation issued by Celestine V; Wilkins, Cone. ii. 197, 198. XIX.] Appointments to Bishoprics. 307 rics were a constant matter of dispute. The freedom of election Numerous promised by John had resulted in a freedom of litigation and elections to little more. The attempts of Henry III to influence the chap- sees under ters were undignified and unsuccessful ; his candidates were seldom chosen ; the pope had a plentiful harvest of appeals. Between 12 15 and 1264 there were not fewer than thirty dis- puted elections carried to Rome for decision^. On the last of these occasions, a contested election to Winchester in 1262, the pope, wearied with discussion, adopted the plan which Innocent III and Gregory IX had followed, rejected both candidates, declared the elective power to be forfeited, and put in his own nominee ^. This bold measure had the effect of stopping appeals for a time ; only one case more occurred during the reign of Henry III. In 1264 the canons of York elected William Langton ; the pope appointed S. Bonaventura, who, knowing the disturbed state of the kingdom, declined the appointment. The chapter was then allowed to postulate the bishop of Bath ^. 706. Under Edward I there were only twelve cases of the Gradual . «i 11 !!• suspension kmd; yet, although the rarity of the appeals shows the king to or extinction of the have become stronger, they were so managed by the popes as to elective increase their own influence, and the result was the extinction, chapters, for more than a century, of the elective right of the chapters The practice of translating bishops from one see to another, a practice which had been very rare until now, gave an oppor- tunity for a new claim. Only papal authority could loose the tie that bound the bishop to the church of his consecration ^ ; ^ The details of most of these disputes may be found in the second volume of Piynne's Records. ^ The monks were divided ; fifty-four chose Oliver de Tracy, seven chose Andrew of London ; the pope provided John of Exeter ; Ann. Winton, p. 99. ^ See Raine, Fasti Eboracenses, i. 302. * The most famous case in the first half of Edward's reign was the papal provision of John of Pontoise to the see of Winchester, which the pope made after quashing an election ; he had great difficulty in obtaining his temporalities; Prynne, Records, iii. 292, 1255, 1261. In 1280 the chapter of Carlisle elected without royal licence, damaging the interest of the crown, as it was alleged, to the amount of £60,000; ib. p. 1230. 5 Anselm, Epp. iii. 126; Deer. Greg. IX, lib. i. tit. 7. Nicolas IV ordered that all postulations, that is, elections of persons disqualified, in- cluding translations, should be personally sued out at Rome. In 1287 Honorius IV, on a case of the kind arising, reserved the provision to the see of Emly ; Theiner, Vet. Mon. p. 138. X 2 3o8 Constitutional History. [chap. Papal rights on transla- tion. Boniface VIII pro- vides to Heat- tempts to confer the temporali- ties as well as the spirituali- ties. it was the pope's duty and privilege that the divorced church should not remain unconsoled, and when, on the petition of the king or the chapter, he had authorised the translation, he filled up the vacancy so caused \ Thus in 1299, when, on a double election at Ely, both candidates had surrendered their rights to the pope, Boniface VIII nominated the bishop of Norwich to Ely, and filled up Norwich with one of the two complaisant disputants from Ely 2. On the next vacancy at Ely, in 1302, he appointed a candidate, Robert Orford, whose election arch- bishop Winchelsey had refused to confirm, but who had renounced the election by the chapter before he accepted the nomination by the pope ^. Nearly at the same time the see of Worcester was vacant, and a monk of the house, named John of S. German, was elected to fill it. He was accepted by the king, but made such a show of reluctance that Winchelsey delayed his confirma- tion, and the matter was carried to Rome. There Boniface YIII obtained from John the renunciation of his claim, and imme- diately consecrated to the see a Franciscan named William Gainsborough. Boniface was not content with the substance of supreme power ; he took in both these cases a further step in which he directly attacked the king's constitutional relation to the episcopate. In the preceding century a custom had been ^ The only translations, except to the archiepiscopal sees, which took place from the Conquest to the reign of Edward I, were the following ; Hervey from Bangor to Ely in 1 109 (Anselm, Epp. iii. 126); Gilbert Foliot from Hereford to London in 1 1 63 (see the pope's letter in R. Diceto, i. 309) ; Richard le Poor from Chichester to SaKsbury in 1 2 1 7, and thence to Durham in 1228 (Ang. Sac. i. 731); William of Raleigh from Norwich to Winchester in 1244, having been elected to Winchester before he was bishop of Norwich (Ang. Sac. i. 307) ; Nicolas of Ely from Worcester to Winchester 'per ordinationem domini papae Clementis,' in 1268 (ibid, p. 312). In all these cases the pope was consulted ; but he did not in all of them fill up the see vacated by translation. In the last case the king exacted an acknowledgment of the same kind as that obtained from arch- bishop Kilwardby; Prynne, Records, iii. 122. 2 The monks of Ely were divided, the majorily .chose their prior John, the minority John Langton, the king's treasurer ; the prior appealed to the pope, who, having failed to make them unanimous, translated the bishop of Norwich and appointed the prior to Norwich ; Ang. Sac. i. 639 ; Prynne, Records, iii. 799. * Winchelsey rejected Orford on account of his literary insufficiency; Ang. Sac. i. 640 ; Prynne, Records, iii. 919. XIX.] Pajoal claim on Temporalities. 309 gradually introduced into the Irish church, according to which the pope conferred on the bishops at their confirmation both the spiritual and the temporal administration of their churches ^. Boniface had in 1300 attempted to extend this practice to the see of York : and when Thomas Corbridge, archbishop elect, had gone to Eome for confirmation, the pope had prevailed on him to resign the right conferred by election and then re- appointed him^, solemnly committing to him both the spiritual and the temporal administration of his see. Edward I re- stored the temporalities, apparently without noticing the inno- vation ; but when, a few months after, the usurpation was The bishops repeated on the appointment of an archbishop of Dublin, Ed- renounce ward compelled the new-made prelate to renounce all words in in the papal the Bull that were prejudicial to the royal authority^. The diciai to^'^"' experiment was again tried in the cases of Orford and Gains- Shority. borough, and on the latter, who had obtained his appointment without any reference to the king, his indignation fell heavily ; and the bishop only recovered his temporalities by a payment of 1000 marks ^ The renunciation of the offensive words in the Bulls of provision afterwards became a regular ceremony on * Prynne,Ilecords,iii. 992, 1149; Wilk. Cone. ii. 266. The words are 'curam sibi et administrationem ipsius ecclesiae in spiritualibus et temporalibus com- mittendo.' In the letters confirming the election of a bishop of Killaloe in 1253, Innocent IV had used the form 'plena tibi ejusdem ecclesiae tarn in spiritualibus quam in temporalibus administratione concessa;' Theiner, Vet. Mon. p, 58. In the bulls for the Scottish sees at the same time the claim is insinuated but not definitely expressed; ibid. pp. 60, 61. In an appointment to Cashel the pope exhorts the archbishop ' quatenus ecclesiam tibi commissam in spiritualibus et temporalibus ita studeas gubernare quod &c.;' ibid. p. 62. Alexander IV uses the form without hesitation in some cases ; Nicolas III in 1277 commits both temporals and spirituals to John of Darlington, archbishop elect of Dublin ; ibid. p. 119 ; but avoids the form in the appointment to S. Andrew's in 1280 ; ibid. p. 124. Honorius IV does not use the form in confirming the election to Dublin in 1280; and a wish for the prosperity of the church in both departments is all that is expressed until the reign of Boniface VIII, who in 1292 uses the direct form in the provision of the bishops of Ross, ibid. p. 157; of Caitimess, of Brechin, pp. 161, 164, of S. Andrew's, p. 165, and Moray, p. 166. The next case is that of the archbishop of Dublin referred to in the text. In the case of John of Darlington no remonstrance was made ; Prynne, Rec. iii. 2?6. The words occur in the confirmation of an abbot of Evesham in 1284; Prynne, Rec. iii. 1269. ^ Prynne, Records, iii. 859, 860. ^ lb. iii. 865. * Thomas, Survey of Worcester, App. p. 85. See similar protests, under Edward I, in Prynne^ Rec. iii. 1132. 310. Constitutional History. [chap. the restitution of the temporalities. These offensive words bad long been inserted in the letters by which the popes appointed the Irish bishops. In the case of the English church, either Cor- bridge's case was the first in which the usurpation was attempted, or else Edward's suspicions as to the real bent of Boniface's policy bad been aroused by his recent proceedings in the matters of clerical taxation and his claim to the superiority of Scotland. The popes 707. In all the cases hitherto cited the pope either had acted now assume ^ ^ ^ ^ patronage ^ J^^^S^j ^^^^ skilfully availed himself of opportunities which to vacant were brought before him in his capacity as judge. But from the beginning of the fourteenth century his interference in the appointment of bishops takes a new form, and he assumes the Growth of patronage as well as the appellate jurisdiction. This was done ofprovisioii^.by the application to the episcopate of the rights of provision and reservation wliich had been exercised long before in the case of lower preferments. The first direct attack on patronage had been made in 1226, when the papal envoy Otho was sent to England to demand two prebends in each cathedral church for the use of the pope ^. Some few Italians were already bene- ficed in England, but these, probably in all cases, owed their promotion either to the king or to the bishops, who thus repaid the services of their agents at Rome, or gratified the popes by liberality to their relations. Otho's request was refused by the church, but in 1231 Gregory IX issued orders to the English bishops to abstain from presenting to livings until provision had been made for five Romans unnamed^. The barons for- bade the bishops to comply, and prohibited the farmers of livings in the hands of foreigners from sending the revenue out of the country. Notwithstanding their attitude of defiance, Gregory in 1239 attempted to extend the usurpation to livings in pri- vate patronage^, and, when this was defeated, he directed in 1240 the bishops of Lincoln and Salisbury to provide for not ^ Above, vol. ii. p. 38. ^ M. Paris, p. 371. On the growth of this form of usurpation in the Western Church generally see Gieseler, Eccl. Hist. (ed. Hull), vol. iii. p. 173 ; vol. iv. p. 79. England seems to have been the great harvest-fiehl of imposition. 3 M. Paris, p. 513. XIX.] Papal Provisions. less than three hundred foreign ecclesiastics ^. This claim was one of the burdens that broke down the spirit of archbishop Edmund and drove him into exile. Innocent lY continued the practice which Gregory had begun, notwithstanding annual re- monstrances from the bishops and an appeal to a general coun- cil. From time to time he promised to abstain, but, by the use of the infamous non obstante clause, managed to evade the performance of his word. In 1253, however, he recognised in interference the fullest way the rights of patrons, and undertook to abstain elections from all usurped provisions ^ The same year Henry III made in 1253; a similar promise on his part to abstain from interference intinuedT elections^; a promise which in 1256 was enforced by the par- standing, liament which rehearsed and confirmed the Charter of John *. In 1258 freedom of election was one of the articles demanded by the barons in the Mad Parliament. Notwithstanding this legislation, however, the claim of the pope was enforced during the whole reign of Edward I ^ ; and it was not until his last year, 1307, that the laity, in the parliament of Carlisle, forced the question upon the kin«j:'s attention. Edward had perhaps con- The power . , ■ „ . . . , . . strengtheu- nived at some amount of usurpation m this particular point, medby com order to secure objects which were for the time of more im- portance; the appointment to benefices was but one of many ways of papal exaction ; the king was in 1307 on friendly terms with the pope, and wished to avoid another rupture such as had happened in 1297. Nothing more was done at the ^i^^ ^- fj^g^nfeJto The weakness of Edward II ' and the exigencies of the papacy bishoprics. ^ M. Paris, p. 532. ^ M. Paris, Additam. pp. 184-186; Feed. i. 175 ; Ann. Burton, pp. 284, 314-317. » M. Paris, pp. 865, 866. * lb. p. 920. ^ The countless instances given by Prynne, in the third volume of his Records, defy even an attempt at classification here. * Rot. Pari. i. 222: Prynne, Records, iii. 1 1 68 sq. ; above, vol. ii. p. 156. ^ In 1307 the pope committed the temporalities as well as the spirituali- ties of Armagh to Walter Jorz ; Foed. ii. 3. Edward compelled him to renounce the obnoxious words ; ib. p. 7. Several similar attempts to repel aggression were made in the following years; ib. 77, 96: John de Leek, archbishop of Dublin in 131 1, has to renounce the words; ib. p. 140 : the pope repeats them the same year in the provision to Armagh; p. 149: similar cases are found: ib. pp. 185, 197. In 1307, when Worcester was Constitutional History, [chap. emboldened Clement V and his successors to apply to the episcopal sees the system of provision and reservation ^. Clement V In 1313, on the death of archbishop Winchelsey^ the monks reserves tlie ^ appointment of Canterbury elected the learned Thomas Cobham as his suc- bury.^^^*^ cesser, although Edward had begged them to choose his tutor, "Walter Reynolds, bishop of Worcester. Winchelsey had died on the iith of May; on the 23rd of June the prior heard a rumour that the pope had reserved the appointment for his own nomination, and on the 7th of July letters were produced, bearing date April 27, in which Clement expressed this inten- tion. The prior thinking, as he said, that nothing was impos- Papal ap- sible with God, entreated the pope to nominate Cobham ; but by reserva- on the ist of October he appointed Reynolds by virtue o^ the PTOvSm, reservation^, and immediately filled up the see of Worcester Edvrardll which Reynolds vacated. Clement died in 13 14, and the papacy Edward III. was vacant for two years, during which the English bishops were appointed by compromise between the crown and the chap- ters. But John XXII, who was elected in 131 6, immediately followed in the steps of Clement. In 1317 he reserved the appointments to Worcester, Hereford, Durham, and Roches- ter^; in 1320 to Lincoln and Winchester^; in 1322 to Lich- vacant and archbishop Winchelsey was abroad, Edward, who had obtained the election of Reynolds to that see, wrote to the pope to pray him to confirm it, because he did not wish the matter to come before the papal administrator of the spiritualities of Canterbury; Foed. ii. 15: and the same year he asked the same favour for bishop Stapledon of Exeter against whose election an appeal was made; ib. p. 19. Early in 1308 he heard that the pope had reserved the provision to Worcester and protested against it ; p. 29. The pope appointed Reynolds, using the words pre- judicial to royal authority; Thomas, W^orcester, App. p. 99. ^ The form of a pi ovision after reservation declared that during the life of the last incumbent the pope had reserved the appointment for his own bestowal, thereby making void any attempt to fill it up; but that on the occurrence of the vacancy, being anxious that there should be no delay, he had specially applied himself to find a fit person ; he therefore pre- ferred the person named, who in many cases was the elect of the chapter or the royal nominee. There are a great many such bulls in the Foedera. 2 Foed. ii. 228. The Bull contained the offensive words which the new archbishop had formally to renounce ; ib. p. 237 ; see also the case of Durham, p. 328. 3 Foed. ii. 313, 319, 328; Ang. Sac. i. 357, 533. * Foed, iii. 422, 425. The provision to Lincoln does not mention the temporalities ; but the bishop was kept out of them by Hugh le Despenser ; ib. p. 697. XIX.] Fajoal Provisions. field ^; in 1323 to Winchester^; in 1325 to Carlisle and Nor- mch^; in 1327 to "Worcester, Exeter, and Hereford*; in 1329 to Bath^; in 1333 to Durham^; in 1334 to Canterbury, Winchester, and Worcester ''. In many of these cases the king played into the pope's hands, or the pope appointed the person recommended by the king. Haymo Heath, who was elected to Rochester in 131 7, found arrayed against him as competitor the queen's confessor, who produced letters of recommendation from the queen and the king and three queens of France ; he also had a papal reservation, but his death in 13 19 left Haymo in quiet possession of his see^ In 1327 bishop Berkeley of Occasional Exeter^, and 1329 Ealph de Salopia^^, bishop of Bath, obtained the papal . -VP J.- T) L candidate, their sees m spite 01 reservations. But cases were very rare in which any voice in the appointment was allowed to the chapters. In 1328 the pope, in a letter to archbishop Mepeham, expressed his general intention of reserving all appointments caused by translation All sees vacated by bishops who died at the papal court were also regarded as perquisites Mepe- ham himself fell a victim to the pope's policy, for he died of mortification at being re^Delled in his metropolitical visitation by Grandison, bishop of Exeter, who announced that the pope had exempted him from any such jurisdiction. ^ Foed. ill. 495 ; Ang, Sac. i. 443. ^ Foed. iii. 525: the temporalities are mentioned in the Bull ; bishop Stratford had to give security for 10,000 marks before he recovered them ; ib. p. 687. ^ Ann. Lanerc. A.D. 1325 ; Ang. Sac. i. 413. Bishop Ayermin of Xor^dch was kept out of his temporalities by Hugh le Despenser in consequence. * Foed. iii. 715, 723, 726. The provision to Exeter was justified by the death of the last bishop at the papal court ; Oliver, Bishops of Exeter, p. 76 ; that to Hereford by the translation of Orlton. ^ This provision was defeated, and the person elected obtained the see ; Ang. Sac. i. 568. ^ See below, p. 314. ^ Stratford of Winchester was promoted to Canterbury ; Orlton from Worcester to Winchester, and Simon Montacute to Worcester ; the pro- vision to Canterbury was done thus ; the monks elected Stratford and the king approved ; the pope ' dissembled,' or pretended that he had not heard of the election and appointed the same person. See Thomas, Wore, App. p. 109. * Ang. Sa^. i. 357, sq. » Oliver, Bishops of Exeter, p. 73. ^« Ang. Sac. i. 568. " Wilk. Cone. ii. 546. ^ Extrav. Comm. lib. i. tit. 3, c. 4; lib. iii. tit. 2. cc. i, 13. Constitutional History. [chap. Collusion^ 708. Edward III, during the early years of his reign, con- withthe tentedly acquiesced in the pope's assumptions, and up to the year 1350 the right of provision was exercised without check. The king occasionally remonstrated ^, but the effect of the re- monstrance was weakened by his constant petitions for the pro- Cases of motion of some friend of his own. It was on an occasion of Hattield and Bury. this kind, the petition made for Thomas Hatfield of Durham, in 1345, following a strong remonstrance presented in 1343, that Clement VI made the famous remark — ' If the king of England were to petition for an ass to be made bishop, we must not say him nay Archbishop Stratford was a papal nominee, and his first act was to set aside Robert Graystanes the elect of Durham, who had not only been regularly chosen and con- firmed, but consecrated also : the king had petitioned and the pope had reserved in favour of the more famous Richard de Bury ^. statute of By the Statute of Provisors, in i^f^i*, it was enacted that all Provisors. . . ... . . persons receiving papal provisions should be liable to imprison- ment, and that all the preferments to which the pope nominated should be forfeit for that turn to the king. But even this bold measure, in which the good sense of the parliament condemned the proceedings of the pope, was turned by royal manipulation Practical j-Q advantaofe of the crown alone. A system was devised compromise, o rrghts of?he ^^^^^'^^ saved the dignity of all parties. When a see became chapters. vacant, the king sent to the chapter his licence to elect, accom- panied or followed by a letter nominating the person whom he would accept if elected. He also, by letter to the pope, requested that the same person might be appointed by papal provision. With equal complaisance the chapters elected and the popes provided. The pope retained, however, the nomina^ tion to sees vacant by translation, which vacancies he took care to multiply. This arrangement was very displeasing to the country, for the question of patronage, in other cases besides bishoprics, was becoming complicated to an extreme degree : * For example in 1343; Wals. i. 254-258. 2 Walsingham, i. 255 sq. ; Ypod. Neust. p. 284. ^ Hist. Dunelm. Scriptores, pp. 120, 121. * 25 Edw. III. Stat, iv; Statutes, i. 316. XIX.] Episcopal Appointments. the king presented to livings which were not vacant, and dis- placed incumbents by his writ of * quare impedit ^ ; the pope's right of reservation affected the tenure of every benefice in the country. At length, after long debates by way of letter, in Congress at 1374 a congress was held at Bruges for determining the general question ; in 1375 Gregory X annulled the appointments which he and his predecessor had made in opposition to the Idng^, and in 1377 Edward was able to announce that, whilst he him- Promise or self gave up certain pieces of patronage, the pope had by word made in of mouth undertaken to abstain from reservations and to allow free elections to bishoprics ^. But this promise was as illusory as all that had gone before. The troubles of the next reign prevented England from taking advantage, as might have been expected, of the weakness of the papacy, now in a state of schism. Richard and his opponents were alike intent rather Translations 1 • n 1 • of political on usmg the papal miiuence for their own ends, than on importance securing the freedom of the church. In 1388 Urban YI, at the Richard II. instance of the lords, translated Alexander Neville from York to S. Andrews, and Thomas Arundel from Ely to York. Such a breach of the law would in ordinary times have called forth a loud protest, but party spirit was rampant, and none was heard. In 1390 the Statute of Provisors was re-enacted and confirmed, and in 1393 the great Statute of Praemunire secured, for the time, the observance of the Statute of Provisors In 1395 the election to Exeter was made without papal inter- ference; but in 1396 the bishops of Worcester and Asaph were appointed by provision^; and in 1397 Richard procured the pope's assistance in translating Arundel to S. Andrews, and in appointing Walden to Canterbury ^ ; Boniface IX, the same year, ^ The form of this writ is thus given by Fitz Herbert, Nat. Brev. f. 32 : 'Rex Vicecomiti Lincoln, salutem. Praecipe W. archiepiscopo et R. quod permitbint nos praesentare idoneam personam ad ecclesiain de W. quae vacat et ad nostram spectat donationem, et unde praedictus W. archiepiscopus et R. nos injuste impediunt ut dicitur et nisi &c., summone &c. praediptum archiepiscopum et R. quod sint coram nobis &c. vel coram justitiariis nostris de Banco, &c.' On the legal questions con- nected with it, see Gibson, Codex, pp. 824, 827-830. 2 See above, vol. ii. p. 427. 3 ggg above, vol. ii. p. 427. * 16 Rich. II. Stat. 5 ; Statutes, ii. 84, 85. ' Rymer, vii. 793, 797. « See above, vol. il. 497. 3i6 Constitutional History. [chap. Right of election revived under Henry V, for a short time. Plan followed under Henry VI. translated bishop Bockingham from Lincoln to Lichfield against his own will, and appointed Henry Beaufort in his place ^. 709. Archbishop Arundel and Henry IV managed the epi- scopal appointments during the later years of the great schism ; and Henry V, among the other pious acts by which he earned the support of the clergy, restored the right of election to the chapters, the parliament also agreeing that the confirmation of the election should be performed as it had been of old by the metropolitans ^. For two or three years the whole of the long disused process was revived and the church was free. But Martin V, when he found himself seated firmly on his throne, was not content to wield less power than his predecessors had claimed. He provided thirteen bishops in two years, and threatened to suspend Chichele's legation because he was unable to procure the repeal of the restraining statutes. An attempt of the pope however to force bishop Fleming into the see of York was sig- nally defeated ^ The weakness and devotion of Henry VI laid him open to much aggression ; during the whole of Stafford's primacy the pope filled up the sees by provision ; the council nominated their candidates ; at Rome the proctors of the parties contrived a compromise ; whoever otherwise lost or gained, the apostolic see obtained a recognition of its claims ^. During the later years of our period the deficiency of records makes it impossible to determine whether the exercise of that claim were 1 Wals. ii. 228. " Rot. Pari. iv. 71. A good example of an election under this arrange- ment will be found in the case of Philip Morgan, in 1419, of Worcester; Thomas, App, pp. 130 sq. : another is that of bishop Bourchier; ib. 141 sq. ^ On the death of archbishop Bowet in 1423, the pope translated bishop Fleming of Lincoln to the vacant see ; the chapter who, with the royal licence and assent had chosen bishop Morgan of Worcester, refused to receive Fleming ; and after some discussion the dispute was compromised by the translation of bishop Kemp from London to York. This was agreed on by the council Jan. 14, 1426; on the 8th of April Kemp was elected to York, on the 22nd he received the temporalities, and on the loih. of July the pope consented to 'provide' him. See Ord. iii. 180; Godwin, de Praes. p. 692. * Abundant illustrations of this diplomacy will be f(5und in the Proceed- ings of the Privy Council and among Beckington's Letters. In 1 434 the king at the instance of the commons appointed Bourchier to Worcester, the pope provided Thomas Brouns to the same see ; Rochester, which was in the archbishop's patronage, was vacant at the time ; the quarrel was Battled by the appointment of Broims to Rochester; Ord. iv. 278, 281, 285. XIX.] Appointments of Abbots. 3^7 real or nominal ; certainly the kings had no difficulty in obtain- ing the promotion of their creatm'es; a few Italian absentees were, on the other hand, allowed to hold sees in England and act as royal agents at Rome. Under Henry VII and Henry The crown is VIII the royal nominees were invariably chosen ; the popes wkmer™*^^^ had other objects in view than the influencing of the national churches, and the end of their spiritual domination was at hand. The clergy too were unable to stand alone against royal and papal pressure, and placed themselves at the disposal of the government ; the government was ready to use them, and paid for their service by promotion. English church history during the middle ages famishes hap- Cases of pily only very few instances in which a bishop was for any penal reason removed from his see. In these few cases, for the sake of security no doubt, the papal assistance was generally invoked. "William the Conqueror got jid of the native prelates, with the aid of a legation from Rome, by the act of a national council. Bishop Everhard of Norwich was deposed in 1145 for cruelty; but history has not recorded the exact process ^. Geoffrey of S. Asaph was compelled in 11 75 to resign as unwilling to reside on his see ; and some of the later cases of resignation may have been the results of legal or moral pressure. The threat of de- privation, although often held out by the popes as an ultimate resource against contumacious prelates, was never carried into eff'ect. The political troubles of the reign of Richard II involved certain changes which the popes, who were too weak to resist much pressure, brought about, as we have seen, by fictitious transla- tions. The removal of bishop Pecock of Chichester in 1457 was not a case of formal and legal deprivation ; he was declared to be, in consequence of heresy, illegally possessed of his see, and the pope was requested to deprive him, but nothing more definite was done. The removal therefore of a spiritual lord is not in constitu- tional history a point so important as the right of appointment. Permanent additions to the episcopal body by the institution Additional of new bishoprics were probably sanctioned by papal as well as national recognition, but on this point there is little evidence. ^ H. Hunt, ; Ang. Sac. ii. 700. 3i8 Constitutional History, [chap. The foundation of the see of Ely in 1109 was confirmed by the pope, if the extant documents are genuine ; the institution of the sees of Carlisle and Whithern in 1133 took place when a brisk communication was open with Rome, and can hardly have lacked the papal sanction. Importance The great importance of this discussion must justify its discussion, length. The point at issue was not merely whether the king or the pope should rule the church through the bishop, but whether the king and nation should accept, at the pope's dic- tation, the nomination of so large a portion of the House of Lords as the bishops really formed. AVhen the average num- ber of lay lords was under forty, the presence of twenty bishops nominated by the pope, and twenty-six abbots elected under Roman influence, would have placed the decision of national policy in foreign hands. The kings had no easy part to play, to avoid quarrelling with the clergy and yet to maintain a hold upon them. Nor had they to struggle with the pope alone, but with a great body of European opinion which he could bring to bear upon them. The English reformation, by itself, would have been impossible unless the unity of that European con- sensus had been already broken. The appoint- 710. It might have been expected that the right of appoint- abbots less ment to the twenty-six parliamentary abbacies would have been than that to the pope and to the king an object of not less importance of bishops. ^^^^ ^jjg nomination to bishoprics ; and, as the process of elec- tion was much the same in the two cases, it offered the same opportunities for interference. The forms of licence to elect, the modes of election, assent, and restitution to temporalities were exactly parallel in all monasteries of royal foundation, although in such of them as were, like S. Albans, exempt from all spiritual jurisdiction but that of the pope, the action of the archbishops was excluded, and the abbots elect sought con- firmation, if not benediction also, at Rome. Neither the king however nor the pope attempted much interference in this quarter ^ The monasteries were the stronghold of papal in- • ^ There are some few instances ; for example, Edmund Bromfield obtained a provision to the abbey of S. Edmund's in 1379 contrary to the Statute of XIX.] Convocations, fluence, which they supported as a counterpoise to that of the diocesan bishops ; the pontiffs were too wise to overstrain an authority which was so heartily supported, and they trusted the monks. The kings let them alone for other reasons : the abbots were not so influential as the bishops in public affairs, nor was the post equally desirable as the reward for public service; with a very few exceptions the abbacies were much poorer than the bishoprics, and involved a much more steady attention to local duties, which would prevent attendance at court. But probably Danger of ... . touching th the chief cause of their immunity from royal usurpation was the privileges certainty that any attempt to infringe their liberties would have convents, armed against the aggressors the whole of the monastic orders, with their widespread foreign organisation and overwhelming influence at Rome. One result of this immunity was that scarcely any abbot during the later middle ages takes any con- spicuous part in English politics; the registers of the abbeys are no longer records of national history, but of petty law-suits; the monastic life separates itself more widely than ever from the growing life of the nation ; the temporalities of the monasteries are offered to the king by the religious reformers as a ready source of revenue, by the confiscation of which no one can lose ; when the great shock of the Reformation comes at last, the whole system falls at one blow, and vast as the ruin is at the time, it is forgotten before the generation that witnessed it had passed away, 711. The convocations of the two provinces, as the recognised The consti- constitutional assemblies of the English clergy, have undergone, convocation except in the removal of the monastic members at the dissolu- changed in tion, no change of organisation from the reign of Edward I down ages, to the present day. The clergy moreover are still summoned in the parliamentary writ of the bishops, to attend by their proctors at the session of parliament. On both these points enough has been said in former chapters^; and here it is necessary only to mention the particulars in which external action was ai^plied to Provisors; Cont. Murim. p. 235. And in 1347 the commons petitioned against papal provisions to abbeys and priories; Rot. Pari. ii. 171. * Vol. ii. pp. 194-200. 320 Constitutional History. [chap. multiply meetings or accelerate proceedings. The clergy from the very first showed great reluctance to obey the royal sum- mons under the jpy^aemunientes clause, and accordingly during a great part of the reigns of Edward II and Edward III, from the year 13 14 to the year 1340^ a separate letter was addressed to the two archbishops at the calling of each parliament, urging attempt?to ^^^"^ ^0 compel the attendance of the clerical estate. This was atSdance ^^^^^^^^ual ; and after the latter year the crown, having acquiesced in parlia-^^^ the rule that the clerical tenths should be granted in the pro- ment. vincial convocations, seems to have cared less about the attend- ance of representative proctors in parliament. On two or three critical occasions the clerical proctors were called on to share the responsibilities of parliament ^, but their attendance ceased to be more than formal, and probably from the beginning of the fif- teenth century ceased altogether, the^reiation ^^^^ regard to the constitution of the Convocations the only of^J^onvoca- question which has taken its place in political history is that of parliament, their relation to parliament : and this question affects only those sessions of convocation which were held in consequence of a request or a command issued by the king with a view to a grant ^ In June 131 1 the clergy were summoned, to the parliament in which the Ordinances were published, by the usual praemunientes clause. Under the guidance, probably, of Winchelsey, who was anxious to extend their immunities, they demurred to electing proctors, and, when in October the king called another meeting of parliament for November 18, he wrote to the two metropolitans urging them to compel the attendance of the proctors. Winchelsey took offence at the wording of this writ, and on October 24, the king issued another in which he said that nothing oflfensive was intended, and that the writ should be amended in parliament ; Pari. Writs II. i. 58; Wake, State of the Church, pp. 260, 261. In 1314, March 27, the king summoned the archbishops to meet the royal com- missioners in their respective convocations to discuss an aid. The clergy immediately protested against the royal citation, and having met, recorded their protest and broke up; Pari. Writs, II. i. 123. When then on July 29 the king summoned a new parliament, he wrote special letters to the archbishops urging them to enforce attendance under the prae- munientes clause; ib. p. 128. This practice was followed down to 1340. On the 1st of December 1314 the prior and convent of Canterbury protested against the archbishop's citation under the premunition, first, ' in eo quod ad curiam secularem, puta Domini regis parliamentum quod in camera ejusdem domini regis fuit inchoatum et per dies aliquos continuatum ;' secondly, because the abbots and priors were not summoned; ib. p. 139; they complied however with the summons. See above, vol. ii. pp. 328, 331. ^ See above, vol. ii. 347, 494, 495. XIX.] Church Assemblies. 321 of money. The organisation of the two provincial assemblies The pro- was applicable to all sorts of public business, and the arch- councils or bishops seem to have encountered no opposition from the king tions. on any occasion on which they thought it necessary to call their clergy together. The means to be taken for the extirpation of heresy, for the reform of manners, for the dealings with foreign churches and general councils, might be, and no doubt were, generally concerted in such assemblies. Archbishop Arundel and his successors held many of these councils, which are not to be distinguished from the convocations called at the king's request in any point except that they were called without any such request. As however parliaments and convocations had Meetings of this much in common, that the need of pecuniary aid was the correspond king's chief reason for summoning them; it might naturally be not regularly expected that, when a parliament was called, the convocations pariSmeSs. would at no great distance of time be summoned to supplement its liberality with a clerical gift. We have seen how regularly this function was discharged during the fifteenth century, and how the clerical grant followed in due proportion the grant of the laity. But although nearly in every case there is a session of convocation to match the session of parliament, the session of convocation cannot be regarded as an adjunct of parliament. Archbishop Wake, in his great controversy with Atterbury, showed from an exhaustive enumeration of instances that, even where the purpose of the two assemblies was the same, there was no such close dependence of the convocation upon the parliament as was usual after the changes introduced by Henry YIII. The The meet- king very seldom even suggests the day for the meeting of con- convocations vocation ; its sessions and adjournments take place quite councUs"^^^^ irrespective of those of the parliament ; very rare attempts are fered with! made to interfere with its proceedings even when they are unauthorised by the royal writ of request; and after the accession of the house of Lancaster, they are not interfered with at all. On the side of the papacy interference could scarcely be looked for. As a legate could exercise no jurisdiction at all without royal licence, a legatine council could not be held in opposition to the king's will ; but the days of legatine councils VOL. III. Y Constitutional History. [chap. of the whole national church seemed at all events to be over ; there is no trace of any important meeting of such assembly between the days of Arundel and those of "Wolsey^ ; although, from the date at which both archbishops acquired the legatine character, the provincial convocations might both be regarded as legatine councils. Varieties of 712. The history of ecclesiastical legislation, so far as it enters ticai legis- into our present consideration, comprises three distinct topics ; the legislation of the clergy for the clergy, of the clergy for the laity, and of the laity for the clergy; and under each of these the several attempts at interference with, and resistance to, such legislation. Under each head moreover we have to distinguish in the case of the clergy between the pope and the national church, as regards both attempts at legislation and attempts at restriction ; whilst in the case of the laity we must not less care- fully discriminate between the action of the crown, of the parliament, and of the common law. An exhaustive discussion of the subject, even thus limited, would be out of all proportion to the general plan of this work, even if controversial points could be treated in it. It is however necessary to attempt to classify, under some such arrangement, the particular points of the subject which have an important bearing on our national history ; and as most of these have been noted in their chrono- logical order in our narrative chapters, the recapitulation need not occupy much space. Laws made The laws made by spiritual authority for the spiritualty, by siastical the clergy for the clergy, include, so far as medieval history ffclergyf^^is concerned, the body of the Canon Law, published in the Decretum of Gratian and its successive supplements, such par- ticular edicts of the popes as had a general operation, the canons of general councils, the constitutions of the legates and legatine councils which in the fifteenth century were codified by Lyndwood in the Provinciale, the constitutions published by the archbishops and the convocations of their provinces, and those * In 1408 the archbishop of Bourdeaiix is said to have held a legatine council at London to discuss the state of the papacy; Cont. Eulog. iii. 413 J but he seems to have merely been the envoy of the cardinals sent to debate the matter with the English clergy; see Wilkins, Cone. iii. 308, 311, 312. XIX.] Church Legislation, 3^3 of individual bishops made in their diocesan synods. All these Canon Law. may be included under the general name of Canon Law ; all were regarded as binding on the faithful within their sphere of opera- tion, and, except where they came into collision with the rights of the crown, common law or statute, they were recognised as authoritative in ecclesiastical procedure. In the e^eneral legislation of the church, the English church General T , , ' ® . . , legislation of and nation had alike but a small share ; the promulgation of the the Church, successive portions of the Decretals was a papal act, to which Christendom at large gave a silent acquiescence^: the crown Restramt on asserted and maintained the right to forbid the introduction of sion of papal papal bulls without royal licence, both in general and in particular cases; and the English prelates had their places, and the am- bassadors accredited by the king and the estates had their right to be heard in the general councils of the church. But except in the rare case of collision with national law, the general legisla- tion of Christendom, whether by pope or council, was accepted as a matter of course. In the acts of the national church, whether legatine, provincial, National or diocesan, the legislative power was exercised by the presiding lation in prelate in his own name and in that of his brethren ; the legate Otho made constitutions, 'supported by divine help and by the suffrage and consent of the present counciP;' and Othobon legislated 'with the approbation of the present council ^' The arch- bishops, who issued constitutions after the organisation of the provincial convocations was perfected, actgi with the advice and consent of their brethren the bishops and the clergy of their provinces. The province of York by its convocation accepted the provincial code of the province of Canterbury*. The diocesan regulations made by particular bishops were either ^ See Blackstone, Comm. i. 79, 80 : ' All the strength that either the papal or imperial laws have obtained in this realm or indeed in any other kingdom in Europe, is only because they have been admitted and received by immemorial usage and custom in some particular cases and some particular courts, ... or else because they are in some other cases intro- duced by consent of parliament.' In the statute de Bigamis (Statutes, i. 44) Edward I recognises and extends the application of a constitution of the general council of Lyons. 2 Johnson, Canons, ii. 157. ^ ^o. ii. 2 1 3. * Blackstone, Comm. i. 85; Wilkins, Cone. iii. 663; Johnson, Canons, ii. 513. Y 2 324 Constitutional History. [chap. Diocesan mere repetitions of general enactments, or rules of the nature of enactments. , , , . , local ordinances, and require no notice here. Royal right The calling of the assemblies in which such legislation could be ing legisla- transacted was, as a matter of fact, subject to royal permission or approval, and the right of the king to forbid such a council or to limit its legislative powers was during the Norman reigns both claimed and admitted. William the Conqueror did not allow the archbishop in a general council of the bishops to ' ordain or for- bid anything that was not agreeable to his royal will, or had not been previously ordained by him^.' AVilliam Rufus prevented ^^al con- the holding of such an assembly for thirteen years ^. Henry I acted on his father's principle, and added his royal confirmation to the ecclesiastical legislation which he approved'. Stephen struggled in vain against the claims of the clergy to independent power of legislation, and retorted by measures of oppression; but Henry II contented himself with aiding the conciliar legislation, which he knew himself to be strong enough by fair Prohibition means to control. Hubert Walter held a ' general' council in fustkiar. spite of a prohibition of Geofi'rey FitzPeter * ; but he was him- self chancellor at the time, and the protest of the justiciar may have been only formal. As a rule the later sovereigns, instead of restricting the liberty of meeting, contented themselves with Warnings warning the clergy not to infringe the royal rights. In 1207 by the king for instance John warned the council of S. Alban's not to do to councils, anything contrary to the customs of the realm, and to defer their deliberations until they had conferred with him^. In 1 281 again Edward I in the strongest language forbade the archbishop and bishops, as they loved their baronies, to discuss any questions touching the crown, the king's person or council, ^ Above, vol. i. p. 286. Anselm, Epp. iii. 40. ^ ' Sciatis quod auctoritate regia et potestate concede et confirmo statuta concilii, a Wilielmo Cantuariensi archiepiscopo et sanctae Romanae ecclesiae legato apud Westmonasterium celebrati, et interdicta interdico. Si quis vero horum decretorum violator vel contemptor exstiterit, si ecclesiasticae disciplinae hunailiter non satisfecerit, noverit se regia potestate graviter coercendum, quia divinae dispositioni resistere praesumpsit ;' Foed. i. 8. * Hoveden, iv, 128 ; R. Diceto, ii. 169. This was an attempt made by Hubert as primate to convene the whole of the English clergy. ^ Eot. Pat. i. 72 ; Foed. i. 94; a similar warning of 18 Hen. Ill is cited by Coke upon Littleton, s. 137 ; and other instances 4 Inst. pp. 322, 323. XIX.] Ecclesiastical Legislation. 325 or to make any constitution against his crown and dignity \ But these and similar prohibitions were simply cautionary; so long as the councils confined their deliberations to matters of spiritual or ecclesiastical interest the kings either actively assisted or quietly acquiesced in the freedom of deliberation and legislation ; nor in later times were the parliaments more than duly jealous or watchful in this respect, so long as the legisla- tion was such as would bind the clergy alone, or the laity only in foro conscientiae. 713. Any attempts made by the spiritualty in council and Instances of convocation, or by the pope and his legates, to bind the laity by by the cSgy legislative enactment, must be looked for in those regions of ecclesiastical jurisprudence where the state had placed in the hands of the church, or the church had acquired by prescription, an ill-defined amount of judicial authority; or in other words, in those departments of judicature in which, according to the charter of William the Conqueror, the ministers of the common law undertook to compel the execution of ecclesiastical sen- In matri- mi • !> 1 1 1 • 1 monial, tes- tences. The most important of these departments during the tamentary early middle ages were the jurisdiction by which matrimonial questions, suits were regulated, by which testamentary causes were decided, and by which the payment of tithes and ecclesiastical fees was enforced ; from the beginning of the fifteenth century the juris- diction in cases of heresy was another field for co-operation between the two powers, and there were besides such cases of slander, usury, and other minor offences, as could be tried in the spiritual courts. In each of these points, the baronage first, and the parliament afterwards, showed some jealousy of ecclesiastical legislation ; the barons at the council of Merton, in 1236, rejected the proposition, to which the prelates had agreed, illustrations, that illegitimate children are made legitimate by the subse- quent marriage of their parents ; the excessive charges made on the probate of wills are a frequent subject of complaint in par- liament ; and the constitution framed by archbishop Stratford in 1343 against those who refused to pay tithe of underwood called forth a petition from the commons, in 1344, that no petition * Wilkins, Cone. ii. 50; see above, vol. ii. pp. 113, 114. 326 Constitidional B-istory. [chap. made by the clergy to the injury of the laity might be granted Judicial without examination before the king and the lords ^. Almost iiitGrfGrciiCG more com- all the examples however, in which the clergy went beyond their legislative recognised rights in regulating the conduct of the laity, come assumption, ^^^^^j. ^j^^ head of judicial rather than of legislative action ; in that department the common law had its own safeguards, and could ignore and quash proceedings founded on any canonical enactment that ran counter to it. Petitions in parliament against the encroachments of the spiritual courts are frequent, any direct conflict between the two legislatures is extremely THe^position rare. In the normal state of English politics the prelates, who bishops were the real leojislators in convocation and also formed the prevented ... any difficulty majority in the house of lords, acted in close alliance with the between . ^ . ecclesiastical crown, and, under any circumstances, would be strong enoue^h and civil .„ , . , . legislation, to prevent any awkward collision ; ii their class-sympathies were with the clergy, their great temporal estates and offices gave them many points of interest in common with the laity. Thus, although, as the judicial history shows, the lines between spiritual and temporal judicature were very indistinctly drawn, England was spared during the greatest part of the middle ages any war of theories on the relations of the church to the state. Even when the great question of heresy arose, few dis- putes of importance found a hearing in parliament ; and if con- temporary history testifies to some amount of popular disaffection caused by ecclesiastical laws, the records of parliament show that such disaffection found little sympathy in the great council of the nation. All attempts of the pope or general councils to legislate in matters affecting the laity were limited in their application, on the one hand by the common law, and on the other hand by the statute of praemunire. The subject of heresy may be reserved for a separate section. Legislation 714. The enactments made by the king in parliament to regu- menTtmicli- late, restrict, or promote the action of the spiritualty are very dergy^ numerous, as might indeed be expected from the general tenour of a history in which the clerical estate played so great a part. Under this head it would be possible to range nearly everything ^ See above, vol. ii. pp. 396, 596. XIX.] Laws against Frovison that has here been classified under all the other departments of administration. Most points of importance, however, occur in the history of taxation and judicature, and these will be noticed separately ; as so much has been said on the topic in the earlier chapters of this work, a very brief recapitulation will be sufficient. The claim of William the Conqueror and his sons The king's to determine, by their recognition, to which of the competitors recognise for the papacy the obedience of the English Church was due pope*^^ may stand first in the series of these acts. In 1378 the English parliament following the same idea declared Urban YI to be the true pope, in opposition to the antipope supported by France and Scotland. But such measures are in fact political rather than Restriction legislative, and in their very nature exceptional. The most sumptions.' prominent place belongs to the statutes by which the papal usurpations or aggressions were met under the successors of Henry III, especially the legislation exemplified in the statutes of provisors and praemunire. 715. The great statute of provisors, passed in 1351, was a Legislation very solemn expression of the national determination not to^'^ rovisors. give way to the pope's usurj)ation of patronage. It was the result of a series of efforts to throw ofi" the yoke imposed in the thirteenth century by the successive encroachments on the free election to bishoprics, the history of which has been already traced. These efforts had begun under the influence of the school of Grosseteste, who, however much he may have been inclined to aid the pope in other ways, was determinedly op- posed to the appointment of foreigners, ignorant of the English language or non-resident altogether, to the care of English churches. The papal provisions were not only usurpations of patronage, and infringements of canonical liberty, but the occasion of the loss of Christian souls. Yet in spite of the dislike with Growth of which they were viewed, petition, remonstrance, and even legis- to the lation seemed powerless against them. The clergy were afraid ^y^*®"^' of the pope, the king found it convenient to use the power which connivance with the pope gave him in the promotion of his servants ; and, to the baronage and the commons alike, the withdrawal of money from the realm by the aliens whom 338 Constitutional History. [chap. Attempted legislation of 1307. Petition of the parlia- ment of Carlisle. Failure of the attempt at legisla- tion. State of affairs imder Edward II. the pope provided was a point of at least as much importance as the spiritual loss of the church. Not to recur to the con- stant presentments of gravamina which furnished employment to the councils and parliaments of the thirteenth century, it will be enough to point to the legislation attempted in the par- liament of Carlisle in 1307. The petition of the earls, barons, and commonalty of the land presented to the king in that par- liament, the words of which were afterwards rehearsed in the statute of provisors, state that the church in this realm was founded by the king and his ancestors, and by the earls and barons and their ancestors, that they and their people might learn the faith, and provision might be made for prayer, alms, and hospitality; the recent action of the pope had tended to throw the great estates devoted to these purposes into the hands of aliens. The articles enumerated in the petition touch several other points of aggression, a claim recently made to the goods of intestates and to property not distinctly bequeathed by testators, the attempt to tax the temporalities of the clergy, the demand of first-fruits and of an increased contribution of Peter's pence ^. The immediate result of the petition was a statute forbidding the religious houses to send money abroad, a prohibition addressed to William de Testa, the papal agent, forbidding him to proceed under the instructions committed to him, a letter of remonstrance to the pope, and orders, which were afterwards suspended, that the sheriffs should arrest the officers employed as papal collectors. Edward, whose death was known to be very near, was in no condition to dispute with the legate, Peter of Spain, and before a concordat could be arranged he died 2. The struggle continued languidly under Edward II ; he himself and the representatives of his father's policy were still inclined to resistance ; but the oppo- sition, headed by the earl of Lancaster, and supported to some extent by French and clerical influence, avoided offending the pope ; and, although aggressions were multiplied and preventive measures and remonstrances were now and then tried ^, no ^ Kot. Pari, i. 219-223; Statutes, i. 150. ^ See above, vol. ii. p. 156. ^ Letters forbidding the introduction of papal bulls without licence were XTX.] Statute of Praemunire. 329 legislation was attempted until Edward III had been for some years on the throne. In 1^4^ the kinof was desired to write Remon- oto o strancesby to the pope against the promotion of aliens, and to attempt Edward m. some such legislation as had been contemplated in the par- liament of Carlisle. After a search for the records of that parliament, an ordinance was prepared and passed with the Ordinances assent of the baronage and commons, which forbade the intro- duction, reception, and execution of papal bulls, reservations, and other letters into the realm, and ordered the arrest of all persons contravening the order ^. This ordinance was not how- ever enrolled as a statute ; and although in the next parliament a petition of the commons for the perpetual affirmation of the act received the assent of the king and baronage ^, three years later the law was unexecuted; the king had wi'itten to the pope, but no remedy had been devised. The remonstrance was repeated with no better result^. At last, in the parliament statute of of 1 35 1, the enactment was elaborately amended and framed into a perpetual statute ^ By this act it was ordered that elections to elective benefices and dignities should be free, and that patrons should have their rights ; that if the pope should reserve an elective promotion the king should have the collation, and if he should usurp a presentation on advowson the king should present for that turn : all persons procuring or accepting papal promotions were to be arrested, and on conviction fined and bound over to satisfy the party whose rights had been infringed. The assent of the lords spiritual was not formally The lords . spiritual given to this statute, and, important as it is, it seems to have withhold been from the first evaded. In 1352 the purchasers of Pro- visions were declared outlaws; in 1365 another act repeated the prohibitions and penalties^; and in 1390 the parliament of issued by Edward II in 1307; Feed. ii. 13; by Edward III in 1327, ib. p. 726 ; and in 1376 ; Wilk. Cone. iii. 107. In 1376 William Courtenay, then bishop of London, published a papal bull against the Florentines, for which he was brought before both the king and chancellor and forced to reti-act the pubUcation, which he did by proxy at S. Paul's Cross ; Cont. Eulog. iii. 335. ^ Rot. Pari. ii. 144, 145. ^ j.^^ 1-4, ^ Ih. ii. i'j2, i-j^. * Rot. Pari. ii. 232, 233 ; st. 25 Edw. Ill, st. 4; Statutes, i. 316 sq., 323. 5 38 Edw. Ill, Stat. 2 ; Statutes, i. 385 ; Rot. Pari, ii 284, 285 ; see above, vol. ii. p. 598. .330 Constitutional History. [chap. Parliament- ary con- firmations. R-ecognition of the validity of the act. History of the Statute of Prae- munire. Ordinance au^ainst suiui^ in foreign courts in J353. Legislation of 1365. Statute of Praemunire of 1393. Richard II rehearsed and confirmed the statute ^. By this act forfeiture and banishment were decreed against future trans- gressors. The two archbishops entered a formal protest against it as tending to the restriction of apostolic power and the sub- version of ecclesiastical liberty ^. The parliaments however of Henry IV and Henry V recognised the validity of the legis- lation, and Chichele, as we have seen, incurred the displeasure of Martin V because he could not obtain a repeal ^. How ill the statutes were kept we have already noted. 716. The history of the statute of praemunire starts from a somewhat different point but runs parallel for the most part with the legislation on the subject of provisions. It was in- tended to prevent encroacliments on and usurpations of juris- diction, as the other was framed for the defence of patronage. The ordinance of 1353, which was enrolled as 'a statute against annullers of judgments in the king's courts,' condemns to outlawry, forfeiture, and imprisonment, all persons who, having prosecuted in foreign courts suits cognisable by the law of England, should not appear in obedience to summons, and answer for their contempt*. The name 'praemunire,' which marks this form of legislation, is taken from the opening word of the writ by which the sheriff" is charged to summon the delinquent °. It is somewhat curious that the court of Rome is not mentioned in this first act of praemunire ; as the assembly by which it was framed was not a proper parliament, it may not have been referred to the lords spiritual ; their assent is not men- tioned. The act however of 1365, which confirms the statute of provisors, distinctly brings the suitors in the papal courts under the provisions of the ordinance of 1353, and against this the prelates protested^. In spite of the similar protest in 1393, the parliament passed a still more important statute, in which the word praemunire is used to denote the process by which the law is enforced. This act, which is one of the strongest defensive measures taken during the middle ages against Rome, was called ^ 13 Ric. II, St. 2. 0. 2 ; above, vol. ii. p. 598. ^ Rot. Pari. iii. 264. 3 Above, p. 301. * 27 Eclw. Ill, St. I ; Statutes, i. 329; vol. ii. p. 410. Gibson, Codex, p. 80. « Above, vol. ii. p. 598. XIX.] Statute of Praemunire. for in consequence of the conduct of the pope, who had for- bidden the bishops to execute the sentences of the royal courts in suits connected with patronage. The political translations of the year 1388 were adroitly turned into an argument : the pope had translated bishops against their own will to foreign sees, and had endangered the freedom of the English crown, ' which hath been so free at all times that it hath been in subjection to no earthly sovereign, but immediately subject to God and no other, in all things touching the regalie of the said crown.' The lords spiritual had admitted that such encroachments were contrary to the right of the crown, and promised to stand by the king. It was accordingly enacted that all persons pro- curing in the court of Eome or elsewhere such translations, Statute of ... Praemunire, processes, sentences 01 excommunication, bulls, instruments, or other things which touch the king, his crown, regality, or realm, should suffer the penalties of praemunire. Archbishop Cour- Courtenay's tenay's protest already referred to, whilst it admits the facts stated in the preamble, simply guards against limiting the canonical authority of the pope : the words of the protest are incorporated in the statute itself ^ Nor was the legislation exem- Disquietude , . ^ , . , „ . , . of the pope plined in the statutes 01 praemunire and provisors a mere 'brutum and clergy fulmen;' although evaded by the kings, — notably by Eichard restraint, himself in the translation of Arundel to S. Andrews, in 1397, — and, so far at least as the statute of provisors was concerned, suspended from time to time by consent of the parliament, it was felt by the popes to be a great check on their freedom of action ; it was used by Grioucester as a weapon against Beaufort ; the clergy, both under papal influence and independently, petitioned from time to time for its repeal and in the hands of Henry YIII it became a lever for the overthrow of papal supremacy. It fur- nishes in ecclesiastical history the clue of the events that connect ^ 16 Ric. II, c. 5 ; Statutes, ii. 84. 2 In the convocation of 1439 especially ; see Wilkins, Cone. iii. 533 ; and again in 1447 ; ib. p. 555, It is fair to say that these clerical re- monstrances were called forth rather by the chicanery of the lawyers than by any affection for the papal jurisdiction ; the lawyers now and then chose to treat the ordinary ecclesiastical jurisdiction as foreign, and so to bring all the courts Christian under the operation of the statute of praemunire. 332 Constitutional History. [chap. the Constitutions of Clarendon with the Reformation ; and if in a narrative of the internal history of the constitution itself it seems to take a secondai-y place, it is only because the influences which it was devised to check were everywhere at work, and constant recurrence to their potent action would involve two separate readings of the history of every great crisis and every stage of growth. Legislative 717. The several legislative measures by which at various interference . . by the state times the crown or the paruament endeavoured to regulate the with the . , . T , , , -, -, 1 national proceedings 01 the national church may be best arranged by reference to the particular subject-matter of the acts. They are important constitutional muniments, but are not very numerous or diversified. First among them come the ordinances or sta- tutes by which the tenure of church property was defined and Concordat of its extension limited. The establishment of the obligation of Henry and Ansehn. homage and fealty due for the temporalities or lands of the clergy was the result of a compromise between Henry I and Anselm, and it was accordingly not so much an enactment made by the secular power against the ecclesiastical, as a con- cordat betwixt the two. It was not so with the mortmain act, or with the series of provisions in which the statute ' de reli- giosis* was prefigured, from the great charter downwards. Restriction To forbid the acquisition of lands by the clergy without the on the acqui- i/ o sitionof consent of the overlord of whom the lands were held was a necessary measure, and one to which a patriotic ecclesiastic like statute /de Langton would have had no objection to urge. But the spirit of rehgiosis,' ® j o r the clergy had very much changed between 12 15 and 1279, and the statute ' de religiosis,' which was not so much an act of parliament as a royal ordinance, was issued at a moment when there was much irritation of feeling between the king and Clerical the archbishop ^. It was an efficient limitation on the greed disquietude . . . ^ , i i • • i i under the 01 acquisition, and although very temperately administered by the kings, who never withheld their licence for the endowment of any valuable new foundation, it was viewed with great dislike by the popes, who constantly urged its repeal, and by the monks, whose attempts to frustrate the intention of the law, by the ^ Vol. ii. pp. 112, 113. XIX.] Parliamentary Legislation for the Clergy. 333 invention of trusts and uses, are regarded by the lawyers as an important contribution to the land-law of the middle ages. Other instances of legislation less directly affecting the lands of Church the church were the acts by which the estates of the Templars were to^t^e^Com-^ transferred to the Hospitallers ^, and the many enactments from the reign of Edward III downwards, by which the estates of the alien priories were vested in the king. Beyond these, however, which are mere instances of the use of a constitutional power, it is certain that not only the parliaments but the crown and the courts of law exercised over the lands of the clergy the same power that they exercised over all other lands ; they were liable to temporary confiscation in case of the misbehaviour of their owners, to taxation, and the constrained performance of the due services ; and although they were not liable to legal Legal treat- forfeiture, as their possessors could be deprived of no greater Siurch^ right in them than was involved in their official tenure, they might be detained in the royal hands on one pretext or another for long periods without legal remedy. The patronage of parish churches Patronage was likewise a temporal right, and although the ecclesiastical right!^"^^ courts made now and then a vain claim to determine suits con- cerning it, it was always regarded as within the province of state legislation. The spiritual revenues of the clergy, the tithes and Tithes, a offerings which were the endowment of the parochial churches, jurisdiction, were subject to a divided jurisdiction; the title to ownership was determined by the common law, the enforcement of payment was left to the ecclesiastical courts ^. The attempts of the par- liament to tax the spiritualities were very jealously watched, and generally, if not always, defeated. The parliament, however. Minor practically vindicated its right to determine the nature of the rights of the clergy to tithe of underwood, minerals, and other newly asserted or revived claims. In 1362 a statute fixed the wages of stipendiary chaplains^. A second department in which the spiritualty was subjected Eestriction of Gcclcsi&S" to the legislative interference of the state was that of judicature, tical judica- In this region a continual rivalry was carried on from the Con- legislation. ^17 Edw. II, St. 2 ; Statutes, i. 194. 2 gee below, p. 342. ^ Statutes, i. 374. 334 Constitutional History. [chap. quest to the Reformation, the courts of the two powers, like all courts of law, being prone to make attempts at usurpation, and the interference of the crown as the fountain of justice, or of the parliament as representing the nation at large, being constantly invoked to remedy the evils caused by mutual aggression. Of the defining results of this legislation the ' articuli cleri ' of 13 16, and the writ of ' circumspecte agatis,' neither of them exactly or normally statutes, are the chief landmarks. In order to avoid repetition, we may defer noticing these disputes until we come to the general question of judicature. Miscellan. Outside these two regions of administration there are some lationfor few acts of the national legislature in which the interests or the clerej. ^^^^ clergy are contemplated in a friendly and statesman- like spirit, which rises above the quarrels of the day or of the class. Such probably were the statutes passed in 1340, 1344, and 1352 \ at the request of the clergy; most of their provisions, Cognisance however, concern property or jurisdiction. The ordinance of Bchism?^^^* 14 1 6, by which it was enacted that during the continuance of the schism in the church the bishops elect should be confirmed by their metropolitans ^, seems a singular instance of the parlia- ment legislating for the clergy where they might have legislated for themselves. The petitions of the parliament for measures which might tend to close the schism are not indeed legislative acts, but may be adduced as proof that the attitude of the com- mons towards the church, even at moments when there was much Discussions reason for watchfulness, was neither unfriendly nor unwise. In on heresy. . . • the struggle against heresy the policy of the parliaments was not uniform, but if the petitions against the clergy, which were ineffectually brought forward, are to be set off against the sta- tutes agiiinst the Lollards, the result shows that in the long run the sympathies of the three estates were at one. In coming to such a conclusion, it must not be forgotten that the clergy, during nearly the whole period of the Lollard movement, had great influence with the king, were in possession of the greatest offices of state, possessed a majority of votes in the house of lords, and had an additional source of strength in the support of ^ Statutes, i. 292, 302, 324. ^ Above, p. 316. XIX.] Papal Exactions. 335 the pope and foreign churclies. But even if all these influences are taken into account, a united and resolute determination of the commons, such as in 1406 was brought to bear upon the king, must have made itself felt in legislation, and could not have contented itself with protest and petition. 718. In the department of finance and taxation, one of the Ecclesiasti- great factors of the social problem maybe briefly treated and by the popes, dismissed ; the pecuniary assumptions and exactions of the papacy are more important in political history than as illus- trations of constitutional action. From the nation at large no imperative claim for money was made by the popes after the reign of Henry III, except in 1306, when AVilliam de Testa Papal was empowered by Clement V to exact a penny from every household as Peter's pence, instead of accepting the prescriptive traditional composition of .£201 9s. for the whole kingdom^: the tribute promised by John was stopped in the year 1366 by the resolution of parliament ^. Voluntary payments for bulls and dispensations do not come within the scope of our present in- quiries. The burden of papal exaction had, even in the thir- teenth century, fallen chiefly on the clergy, and from the begin- ning of the fourteenth it fell wholly upon them. Contributions from the nation at large for papal purposes, such as crusades and the defence against the Turks, were collected by the pope's agents in the form of voluntary gifts. The pope had a regular The papal collector official collector who gathered the offerings of the laity as well as the sums imperatively demanded from the clergy, and who was jealously watched by both ^. A series of petitions against the proceedings of this most unpopular official was presented in the parliament of 1376. In 1390 the king had to reject Petitions^ a petition that the collector might be banished as a public ^ Rot. Pari. i. 220. Innocent III in 121 3 complained that the English bishops paid only 300 marks for Peter's pence, retaining 1000 for them- selves; Foed. i. 118. ^ Vol. ii. p. 415. ^ He was regarded as a mere spy, sent to live in London and to hunt up vacancies and other opportunities for papal claims ; he kept up the state of a duke ; and he had begun to take first-fruits and sent out of the country annually 20,000 marks. It was no doubt in consequence of these repre- sentations that the collector's oath was framed; Rot. Pari. ii. 338-340. In 1377 the commons petitioned that the collector might be an Englislmian ; ib. p. 373- 33^ Constitutional History. [chap. Oath ad- enemy. The oath which he was made to take was stringent ministered ni it to him. enough; he swore lealty to the king; that he would not do or procure anything prejudicial to the king, the realm, or the laws ; would give the king good advice, and would not betray his secrets; would suffer the execution of no papal mandates hurtful to the kingdom ; would receive no such mandates with- out laying them before the council ; would export no money or plate without leave from the king, nor send any letters out of the kingdom contrary to the king's interests ; that he would maintain the king's estate and honour ; that he would not collect first-fruits from benefices in the king's gift, nor from those given by the popes by way of expectative ; that he would attempt no novelties, and would not leave the kingdom without Enforce- permission^. In 1427 the pope's collector having introduced oath. bulls of provision contrary to the statute, was imprisoned, and only released on bail after a brisk discussion in the privy coun- cil ^ ; and there are many indications that the fulfilment of the oath was generally enforced. Papal exac- On the clergy the hand of the papacy was very heavily laid. The tionsfrom . „ ■> n , . . , i • , the clergy, exactions of tenths of ecclesiastical revenue, which were so com- mon under Henry III, were not indeed collected without the con- sent of the payers, given in provincial synod, but the consent was almost compulsory^; the king was in alliance with the pope, and even Grosseteste admitted that the papal needs were great and must be satisfied. Edward I and Edward II had been obliged alike to allow these heavy exactions and had in some instances shared with the popes the profits of transactions which they did not Restrictions venture to contravene. But after the settlement of the papacy at ' Avignon the pressure was very much lessened ; other modes of raising money were devised. Hichard II, in 1389, ventured to forbid the collection of a papal subsidy^; when in 1427 the ^ Rymer, vii. 603 ; Piynne, on the Fourth Institute, p. 146, ^ Ordinances, iii. 268. 3 See Ann. Burton, pp. 356, 360; and a list of papal exactions, ib. pp. 364 sq. * Seethe instances recorded above; vol. ii. pp. 104, 113, 119, 124, 325, 353, 376. ^ Wilk. Cone. iii. 20; Rymer, vii. 645 ; Rot. Pari. iii. 405 ; instances of papal petitions for subsidy are not unfrequent; see Wilk. Cone. iii. 13, 48. XIX.] Tenths and Firstfruits. 337 pope demanded a tenth for the crusade against the Hussites, the council and convocation contrived to pass the proposition by without direct refusal ^ ; a similar course was followed in 1446, when the pope demanded a like subsidy'^. But the other Firstfruits forms of exactions were endured at least with resignation. Thetious. claim to the first-fruits of bishoprics and other promotions was apparently first made in England by Alexander IV in 1256, for five years ^; it was renewed by Clement V in 1306, to last for two years * ; and it was in a measure successful. By John XXII it was claimed throughout Christendom for three years, and met with universal resistance^. The general and perpetual claim seems to have followed upon the general admission of the pope's right of provision and the multiplication of translations, the gift being at first a voluntary offering of the newly-promoted prelates. Stoutly contested as it was in the council of Con- stance^, and frequently made the subject of debate in parlia- ment and council the demand must have been regularly com- plied with; in the petition of convocation in 1531 on the abolition of annates, it is stated that the first-fruits of the tem- poralities of bishoprics as well as of the spiritualities were paid, and the act which bestowed thes^e annates on the king mentions the sum of <£ 160,000 as having been paid on this account to the pope between i486 and 1531 ^ 719. The history of the steps by which ecclesiastical property Taxation of was made to contribute its share towards the national income, tor national and of the methods by which the process of taxation was con- ducted, has been traced in our earlier chapters up to the time * Wilk. Cone. iii. 514. 2 j^j 541-552. ' Ann. Burton, p. 390. * Rot. Pari. i. 221 ; the claim is there spoken of as unheard of. Edward allowed it to be enforced ; p. 222. In the parliament of 1376 it is said to be a new usurpation ; ib. ii. 339. On the general history of Annates see Gieseler (Engl, ed.), vol. iv. pp. 86, 102-108. 5 Gieseler, Ecel. Hist. vol. ii. p. 86; see also Extrav. Comm. lib. iii. tit. 2. c. 1 1. ^ Gieseler, Eccl. Hist. vol. iii. p. 102. The act 6 Hen. IV, c. i, declares that double and treble the amount formerly paid under this name was then exacted, and restricts it to the ancient customary sums. * 23 Hen. Vlil, c. 20; Statutes, iii. 386. VOL. III. Z 33 8 Constitutional Kistory. [chap. at which right of the provincial convocations to self-taxation became so strongly established that the king saw no use in con- testing it. This right was a survival of the more ancient methods by which the contributions of individuals, communities and orders or estates, were requested by separate commissions Seif^taxatiOTi or in separate assemblies. It was in full exercise from the early years of Edward I, and accordingly was strong enough in prescriptive force to resist his attempts to incorporate the clergy as an estate of parliament by the praemunientes clause. Although in some of the parliaments of the earlier half of the fourteenth century the report of the clerical vote was brought up in parliament by the clerical proctors, and the grants may have been in some cases made by the parliamentary assembly of the clergy^, the regular and permanent practice was, that they should be made by the two convocations. In 131 8 the parlia- mentary estate of the clergy refused the king money without a grant of the convocations; in 1322 the parliamentary proctors made a grant, but the archbishops had to call together the con- vocations to legalise it. In 1336 the representatives of the spiritualty granted a tenth in parliament, but this seems to have been an exception to the rule'', for in 1344 they merely an- nounced the grant which the provincial convocations had made. In fact, from the period at which the records of the convoca- tions begin the grants were so made. With the convocations the kings very prudently abstained from direct interference. Process of When money was wanted the king requested the archbishops clergy. to collect their clergy and ask for * a grant ; the archbishops, through their provincial deans, summoned their provincial synods, as they might do for any other purpose, and the clergy assembled without the pressure of a royal writ or such direct summons as would derogate from their spiritual independence. When they met, the king, either through the archbishop or through special commissioners, acquainted them with his neces- sities, and the votes were made either conditionally on the ^ See vol. ii. pp. 339, 344, 353, 380, and especially p. 395 ; the clerical grants are generally mentioned in the notes. 2 See vol. ii. pp. 378, 379. XIX.] Taxation of the Clergy. 339 granting of petitions, or unconditionally, in much the same way as they were made in parliament. The clerical vote Clerical usually took the form of a tenth or a portion of a tenth, or a number of tenths, of spiritual property, assessed on the valuation of pope Nicolas in 1291 j the parochial clergy shared with the towns the burden of a heavier rate of taxation than the counties and the baronial lands, which paid a fifteenth ; the latter were of course subject to feudal services from which the former were exempt. The produce of an eccle- Amount of .... . .8, clerical siastical tenth seems to have been a diminishing quantity, owing tenth. probably to the multiplication of exemptions, especially the exemption of livings under ten marks value ; under the full valuation of 1291 it ought to have amounted to £20,000^: we learn, however, from a letter addressed by Henry YII to the bishop of Chichester, that in his reign it was estimated at no more than £10,000. The lay tenth and fifteenth had at the same time sunk to £30,000 2. The history of the two The old , 1 • . 1 1 1 • 1 valuations, forms of grant is the same; as the spiritual tenth was levied on the assessment of 1291, the lay tenth and fifteenth was paid according to an assessment of 1334^, the counties and their subdivisions being expected to account for the sums which they had furnished in that year, and the particular incidence being regulated by local assessments. Both were unelastic, and re- quired to be supplemented as time went on. Accordingly, just New forms when the parliaments are found introducing new forms of sub- tical impost, sidy, income tax, poll tax, or alien tax, the clergy have to provide some corresponding methods of increasing their grants. The stipendiary clergy were brought under contribution by archbishop Arundel, who, as we have seen, had some difficulty in reconciling with justice the collection of the priests' noble, by a vote of convocation, from a class of clergy which was not * See above, vol. ii. p. 549. 2 In 1497 the convocation of Canterbviry granted £40,000 to the king^ payable in two moieties. Henry excuses the payment of £10,000, ' which is as we imderstand to the value of one hole disme.' The laity had granted a tenth and fifteenth amounting to £30.000. The king's debts were £58,000 ; W. Stephens, Memorials of Chichester, pp. 178, 179. ^ Coke, 4 Inst. p. 34; Brady, Boroughs, p. 39 ; Blackstone, Comm. i. 308 ; Madox, Firma Burgi, pp. no sq, Z 3 340 Constitutional History. [chap forbearance of the laity in dealing with spiri- tualities. represented in convocation \ The difficulty was probably over- come by a diocesan visitation or some other proceeding of the individual bishops. 720. Of this liberty of convocation the kings were carefully observant ; and the parliaments not less so. Frequently as the knights of the shire proposed to seize the temporalities of the clergy, they never threatened the spiritualities; they attacked the position of the bishops and religious orders, but not that of the parochial clergy. And the clergy were generally willing to make a virtue of the necessity which lay upon them ; they never, or only in the rarest cases, refused their tenth when the The king^ parliament had voted its proper share. On one occasion, in- commons to deed, we have seen the commons taking the clerical grant into pendiary account and presuming upon the gift of the priests' noble in a cler??y. ^^^^ ^^^^ Called for the king's interposition 2. He reminded them that it was not for them but for the convocations to decide that that tax should be voted. But although the clergy had thus retained the power to consent or to refuse, they had no direct voice in the disposal of the grants they bestowed ; the sums collected went to the general fund of the revenue, and were appropriated to special purposes by the commons or by the council. In all these points the period on which we have been last employed witnessed no important change ; but the disuse of the attendance of the clergy in parliament, their constant complaisance in supplementing the parliamentary grants, and the increasing tendency to regard convocation as a constitu- tional supplement of parliament, are all signs of a progress towards the state of things in which it became possible for Henry VIII to effect the great constitutional change that marks his reign. 721. Of attempts by the clergy, except under papal autho- the laity not rity, to tax the laity, or to enforce any general payments from them, English history has no trace. The cases in which tithes were claimed for underwood, in which the nearest approach seems to be made to such a proceeding, have been already noticed. Other attempts made in provincial synods to extend the area ^ See above, pp. 45, 47. ^ Above, p. 143. GKineral ac- quiescence. Clerical taxation of or unsuc- cessful. XIX.] Ecclesiastical Judicature. 341 of titheable property seem to have failed \ Indirect exactions, in the form of fees or fines in the spiritual courts, mortuaries and customary payments, scarcely come within the scope of our consideration, except as part of a very general estimate of the causes which alienated the laity from the clergy. 722. "We thus come to the last of our constitutional inquiries, Jurisdiction iii-'T !• p ^ to™- ecclesias- that 01 judicature ; the subject of jurisdiction of, by, and for tical mat- . tcrs. the clergy, which has been through the whole period of English history one of the most important influences on the social con- dition of the nation, the occasion of some of its most critical experiences, and one of its greatest administrative difficulties. In the very brief notice which can be here given to it, it will be necessary to arrange the points which come before us under the following heads : first, the jurisdiction exercised by the Division of secular courts over ecclesiastical persons and causes ; secondly, the jurisdiction exercised by the spiritual courts over laymen and temporal causes ; thirdly, the jurisdiction of the spiritual courts over the clergy ; and fourthly, the judicial claims and recognised authority on judicial matters of the j^ope of Rome. All suits touching the temporalities of the clergy were sub- Eoyaljuris- . . T . Pin., T . diction over ject to the jurisdiction of the kings courts, and against so the tempo- reasonable a rule scarcely any traces of resistance on the part the clergy, of the clergy are found. Yet it is not improbable that during the quarrels of the twelfth century some question on the right of the bishops to try such suits may have arisen. Glanvill gives certain forms of prohibition in which the ecclesiastical judges are forbidden to entertain suits in which a lay fee is concerned ^ ; and Alexander III, in a letter addressed to the bishops in 1178, directed them to abstain from hearing such causes, the exclusive jurisdiction of which belonged to the king Lands held In reference to lands held in frankalmoign, disputes between almoign. * Especially the demand of a tithe of personalty ; see on this subject Gibson, Codex, pp. 690 sq, ; Prynne, Records, iii. 332 sq. In 1237 the clergy petitioned that secular jud^^es may not be allowed to determine ' utrum dandae sint decimae de lapidicinis vel silvicaediis, vel herbagiis vel pasturis vel de aliis decimis non consuetis;* Ann. Burton, p. 254. In archbishop Gray's Constitutions, cir. a.d. T250, the obligation to pay tithe of personalty is strongly urged; Johnson, Canons, ii. 179. ' Glanvill, lib, xii. cc. 21, 22, 25, ^ E. Diceto, i. 427. 34^ Constitutional History. [chap. clergymen belonged to the ecclesiastical courts ; but the ques- tion whether the land in dispute was held by this tenure or as a lay fee, was decided by a recognition under the kiog's writ\ Questions The jurisdiction as to tithes was similarly a debateable land of right to .... tithe. between the two jurisdictions; the title to the ownership, as in questions of advowson and presentation^, belonging to the secular courts, and the process of recovery belonging to the court Christian ^. The right of defining matters titheable was claimed by the archbishops in their constitutions, but without much success, the local custom and prescription being generally re- Questions of ceived as decisive in the matter. The right of patronage was determined in the king's courts. In each of these departments, however, some concert with the ecclesiastical courts was in- dispensable ; many issues of fact were referred by the royal tribunals to the court Christian to be* decided there, and the Cooperation interkcing, SO to speak, of the two jurisdictions was the occa- judicatures. sion of many disputes both on general principle and in parti- cular causes. These disputes, notwithstanding the legislative General activity of the kings and the general good understanding which haiTnonious , . i , i i i i • i working. subsisted between them and the prelates, were not during the middle ages authoritatively and finally decided. It is enough for our present purpose to state generally the tendency to draw all causes which in any way concerned landed property into the royal courts, and to prevent all attempts at a rival jurisdiction. SimTbe '^^^ Same interlacing of judicatures, similar disputes, and a t^een clerk like tendency, are found in the treatment of personal actions between laymen and clergymen ; the fifteenth Constitution of Clarendon *, which insists that the cognisance of debts, in which the faith of the debtor has been pledged, belongs to the king's jurisdiction, was contravened by the canon of archbishop * Const. Clar. no. 9; Glanvill, lib. 12. c. 15; against this the clergy petitioned in 1237 ; Ann. Burton, p. 254. 2 Glanvill, lib. 4. ^ The processes for recovery of tithe, and the jurisdiction in subtraction of tithe, have a long history of their ovpn which does not concern us much. The statement in the text is Blackstone's conclusion, Comm. vol. iii. p. 88 ; but the details may be found in Reeves's History of English Law, iv. 85 sq. ; of. Prynne, Records, iii. 332 ; Gibson, Codex, pp. 690 sq. ; and Ann. Burton, p. 255. * Select Charters, p. 134. XIX.] Ecclesiastical Judicature. 343 Boniface, who, in 1261, attempted to draw all such pleas into the ecclesiastical courts^; but there is no reason to suppose that such a canon was observed, still less that it was incorporated into the received jurisprudence of the realm. A still larger Claims of claim was made in 1237, when the clergy demanded that a clerk S allowed, should never be summoned before the secular judge in a personal action in which real property is untouched^; but this, with many other gravamina presented on the same occasion, could never find a favourable hearing notwithstanding the high autho- rity of Grosseteste, who maintained them ; and after the reign of Edward I they are heard of no more except as theoretical grievances. In criminal suits the position of the clergy was more de- Criminal fensible. The secular courts were bound to assist the spiritual courts in obtaining redress and vindication for clergymen who were injured by laymen ; in cases in which the clerk himself was accused, the clerical immunity from trial by the secular judge was freely recognised. If the ordinary claimed the incriminated clerk, the secular court surrendered him for ecclesiastical trial : the accused might claim the benefit of clergy Benefit of clergy. either before trial or after conviction in the lay court ; and it was not until the fifteenth century that any very definite regu- lation of this dangerous immunity was arrived at ^. We have Jurisdiction , . . . , , overcrimi- seen the importance which the jurisdiction over criminous clerks nous clerks, assumed in the first quarrel between Becket and Henry II. It was with the utmost reluctance that the clergy admitted the decision of the legate Hugo Pierleoni, that the king might arrest and punish clerical offenders against the forest law*. ^ Johnson, Canons, ii. 196. ^ Ann. Burton, p. 254: 'item petunt quod clerici non conveniantur in actione personal! quae non sit super re immobili coram judice saeculari, sed coram judice ecclesiastico, et quod proliibitio regis non currat quo minus hoc fieri non possit.' ' Blackstone, Comm. iv. 365 sq. * R. Diceto, i. 410. In a letter addressed to the pope Henry states the concessions which he has made to the legate ; ' videlicet quod clericus de cetero non trahatur ante judicera saecularem in persona sua de aliquo criminali neque de aliquo foris facto excepto foris facto forestae meae, et ex- cepto laico feodo unde mihi vel alii domino saeculari debetur servitium he will not retain vacant sees or abbeys in hand for more than a year ; 344 Constitutional IHstory. [chap. The ordinary, moved by a sense of justice, or by a natural dis- like to acknowledge the clerical character of a criminal, would not probably, except in times of political excitement, interfere to save the convicted clerk ; and in many cases the process of retributive justice was too rapid to allow of his interposition. Prelates It is not a little curious, however, to find that Henry IV, at with the the time of his closest alliance with Arundel, did not hesitate o?treas«nI^* to threaten archbishops and bishops with condign punishment for treason ^ ; that on one famous occasion he carried the threat into execution'^, and that the hanging of the mendicant friars, who spread treason in the earlier years of his reign, was a sum- mary proceeding which would have endangered the throne of a weak king even in less tumultuous times. Into the legal minutiae of these points we are not called on to enter : as to their social and constitutional bearing it is enough to remark Influence of that, although in times when class jealousies are strong, clerical class immu- . .. . I'l ■^ o c nities. immunities are m theory, but m theory only, a saieguard or society, their uniform tendency is to keep alive the class jealousies ; they are among the remedies which perpetuate the evils which they imperfectly counteract. In quiet times such immunities are unnecessary; in unquiet times they are disregarded. Ecclesiasti- 723. Of the temporal causes which were subject to the Action in Cognisance of the ecclesiastical court the chief were matrimonial temporal, and testamentary^ suits, and actions for the recovery of ecclesiasti- nial, and tes- cal payments, tithes and customary fees. The whole jurisdic- tamentary. ^^^^ questions of marriage was, owing to the sacramental character ascribed to the ordinance of matrimony, throughout Christendom a spiritual jurisdiction. The ecclesiastical juris- diction in testamentary matters and the administration of the goods of persons dying intestate was peculiar to England and the sister kingdoms, and had its origin, it would appear, in times soon after the Conquest. In Anglo-Saxon times there the murderers of clerks are subjected to perpetual forfeiture besides the customary lay punishment ; and clerks are exempted from trial by battle. On the later phases of this dispute see Ann. Burton, pp. 425 sq., where is a tract by Robert de Marisco on the privileges of the clergy. ^ Eymer, viii. 123. 2 Above, pp. 50, 51. XIX.] Ecclesiastical Judicature. 345 seems to have been no distinct recoo^nition of the ecclesias- Growth of the testa- tical character of these causes, and even if there had beenmentary • 1 • 1 -n 1 jurisdiction. they would have been tried m the county court. Probate of wills is also in many cases a privilege of manorial courts which have nothing ecclesiastical in their composition, and represent the more ancient moots in which no doubt the wills of the Anglo-Saxons were published. As however the testa- mentary jurisdiction was regarded by Grlanvill ^ as an undisputed right of the church courts, the date of its commencement cannot be put later than the reign of Henry I, and it may possibly be as old as the division of lay and spiritual courts. The * subtrac- Subtraction tion of tithe' and refusal to pay ecclesiastical fees and perquisites was likewise punished by spiritual censures which the secular power undertook to enforce. As all these departments closely bordered upon the domain of the temporal courts, some concert between the two was indispensable ; and there were many points on which the cer- Certificate of the Gcclo* tificate of the spiritual court was the only evidence on which siastical the temporal court could act : in questions of legitimacy, regu- sary for larity of marriage, the full possession of holy orders and thejuSfcel^ fact of institution to livings, the assistance of the spiritual court enabled the temporal courts to complete their proceedings in questions of title to property, dower and patronage ; and the more ambitious prelates of the thirteenth century claimed the last two departments for the spiritual courts ^. In this however they did not obtain any support from E,ome, and at home the claim was disreQ:arded. Besides these chief points, there were Minor 7 n ^ ' ^ ^ causes in other minor suits for wrongs for which the temporal courts courts afforded no remedy, such as slander in cases where the evil report did not cause material loss to the person slandered : these belonged to the spiritual courts and were punished by spiritual penalties *. ^ Glanvill, lib. vii. c. 8 ; Blackstone, Comm. iii. 96 sq. ; Prynne, Records, iii. 140; Gibson, Codex, pp. 551 sq. * Blackstone, Comm. iii. 335 sq. ^ See Johnson, Canons, ii. 331. * Blackstone, Comm. iii. 123, 124. In 1237 the clergy complain that such suits are withdrawn from them ; ' ne quis tractet causam in foro ecclesiae sive de perjurio, sive de fide laesa, de usura vel simonia vel 34^ Constitutional History. [chap. Suits 'pro 724. Besides the jurisdiction in these matters of temporal correctione animae.' concern, there was a large field of work for the church courts in disciplinary cases ; the cognisance of immorality of different kinds, the correction of which had as its avowed purpose the benefit of the soul of the delinquent. In these trials the courts had their own methods of process derived in great measure from the Koman law, with a whole apparatus of citations, libels, and witnesses ; the process of purgation, penance, and in default of proper satisfaction, excommunication and its resulting penalties Process on enforced by the temporal law. The sentence of excommunica- excommu- , ^ nication. tion was the ultimate resource of the spiritual courts. If the delinquent held out for forty days after the denunciation of this sentence, the king's court, by -writ of significavit ^ or some similar injunction, ordered the sheriff to imprison him until he satisfied the claims of the church. Xuraber of These proceedings furnished employment for a great ma- ecclesiastical ^ .. . . . courts. chinery of judicature; the archbishops in their prerogative courts, the bishops in their consistories, the archdeacons in some cases, and even the spiritual judges of still smaller dis- tricts, exercised jurisdiction in all these matters ; in some points, as in probate and administration, co-ordinately, in others by way of delegation or of review and appeal. Prohibitions "With the constitution of these courts the secular power issued by the king's meddled little. With their proceedings, whenever due cause was shown, it might interfere by prohibitions issued by the king's courts of law or equity ^ ; and the claim of the kings that none of their vassals or servants should be excommunicated without their leave exempted a large number of persons from the juris- Complaints diction of the church courts. The prohibitions were a standinoj of the clergy . i , i i • s^inst pro- grievance with the clergy, and were probably granted in many cases without due consideration. They were indeed frequently a sort of protest made by the temporal courts against the assumptions and encroachments of the courts Christian. The councils of the thirteenth century constantly complained of defamatione, nisi tantum super testamento vel matrimonio.' Ann. Burton, p. 256. See too above, vol. ii. pp. 57, 65. ^ Blackstone, Comm. iii. 102 ; see below, p. 357. ^ Blackstone, Comm. iii. 112; Gibson, Codex, pp. xix, 1064, sq. XIX.] Prohibitions. 347 these vexatious proceedings^, although by their own attempts to extend their jurisdiction they constantly provoked retaliation. In 1247 Henrv III attempted to restrict this branch of eccle- Restriction . . , , ofecclesi- siastical jurisdiction to matrimonial and testamentary causes, astical juris- and Edward I acted upon that rule ^. The writ of circum- The writ specie agatis, by defining the exercise of the royal power ofgpecte^" prohibition, succeeded in limiting the functions of the church ^^^^* courts. This writ, which was regarded as a statute, directed that prohibitions should not be issued in cases of spiritual cor- rection, neglect of churchyards, subtraction of tithes, oblations, mortuaries, pensions due to prelates, assault of clergymen, defamation, and breach of oath. In cases which concerned the right of patronage, tithe suits between parsons for more than a fourth part of the tithe of a parish, and pecuniary penances, prohibitions were to be enforced. In cases of assault on a clerk the injured person might appeal to the king's courts on account of the breach of the peace, and likewise to the bishop's court for sentence of excommunication ; and in cases of defamation the spiritual court might commute penance for pecuniary payment in spite of prohibition ^. The later statutes of 1316, 1340, and 1344, are amendments and ex- pansions of the principles here laid down. 725. The jurisdiction of the spiritual courts over spiritual Jurisdiction men embraced all matters concerning the canonical and moral clergy, conduct of the clergy, faith, practice, fulfilment of ecclesiastical obligations, and obedience to ecclesiastical superiors. For these questions the courts possessed a complete jurisprudence of their own, regular processes of trial, and prisons in which the con- The bishops' victed offender was kept until he had satisfied the justice of the church. In these prisons the clerk convicted of a crime, for which if he had been a layman he would have suffered death, endured lifelong captivity * ; here the clerk convicted of treason or felony in the secular court, and subsequently handed over - 1 Ann. Burton, pp. 254 sq. ; 403 sq. ; 413 sq. ; 422 sq. 2 See M. Paris, p. 727 ; vol. ii, p. 65 ; and the forms of prohibition in Prynne's Records, iii. 780 ; Britton, i, 90, ii. 284. ^ Statutes, i. loi, 102 ; above, vol. ii. p. 119. * See Boniface's Constitution of 1261 ; Johnson, Canons, ii. 208. 348 Constitutional History. [chap. Tendency to the Ordinary, was kept in safe custody. In 1402, when to stbiisc* • Henry lY confirmed the liberties of the clergy, the archbishop undertook that no clerk convicted of treason, or being a common thief, should be admitted to purgation, and that this should be secured by a constitution to be made by the bishops ^ These prisons, especially after the alarms consequent on the Lollard movements, were a grievance in the eyes of the laity, who do not seem to have trusted the good faith of the prelates in their treatment of delinquent clergy^. The promise of archbishop Arundel was not fulfilled. Into the peculiar questions of ecclesiastical jurisdiction we are not called to inquire, for in so far as it worked within its own proper sphere, its proceedings had no bearing on the subject before us. One further point, and that a most important one, the question of appeals to Home, must be likewise briefly noticed and dismissed. Rarity of 726. Except in the earliest days of Anglo-Saxon Christianity, ^is firom when "Wilfrid carried his suit to Rome, contrary to the decisions Rome. of the kings and witan of Northumbria, there are no traces of appeals to the pope earlier than the Norman Conquest. Re- course was indeed from time to time had to the holy see for the determination of points touching the bishops for which insular history and custom furnished no rules ; in the ninth century a pope interceded to obtain the restoration of a dethroned king of Northumbrian, and king Kenulf of Mercia, who had obtained papal confirmation of the restored dignity of Canterbury, is said to have declared that neither for pope nor for Caesar would he consent to the restoration of arch- In Anglo- bishop Wulfred*: but on these three occasions the points Saxon times. . , • . , , , i , i i • \. ■, at issue were political rather than legal, and the action of the papal envoy that of a mediator rather than a judge. Even in the later days of the West- Saxon dynasty, when intercourse with the continental powers was much more frequent than before, the case of an application to Rome for leave to marry within ^ See Wilkins, Cone. iii. 271, 272. 3 See the petition of 1410, above, p. 63 ; and below, p. 360. ^ Councils, &c., iii. 561. * Councils, &c., iii. 587, 588, 602. XIX.] Ajppeah to Borne. 349 the prohibited degrees seems to be the only recorded instance of a judicial resort thither ; and in that case Dunstan is found resisting the papal mandate ^ There can be no doubt that the Norman kings, influenced by continental usage, and not in the first instance unwilling to extend the authority of the papacy to which they knew themselves to be indebted, allowed the introduction of the practice of referring cases to the successor of S. Peter as supreme judge, although they did, as much as they could, restrain the practice by making their own licence an absolutely necessary preliminary. Anyhow, even in the reign introduc- of the Conqueror, disputed questions were carried to E-ome for appealsf decision. William had before the Conquest been a suitor there in the matter of his marriage. The questions at issue between the sees of York and Canterbury were debated there. The bishop of Durham in his quarrel with William Rufus ^ threatened to appeal to the pope in a tone that shows the idea of such an appeal to be familiar to the persons to whom he spoke : and one of Anselm's charges against that king was that he hindered the prosecution of appeals^. It would seem certain from these facts that thus early, in matters which the royal tribunal was incompetent to decide, a right of appeal, under royal licence, was recognised. That Henry of Blois, whilst he Lection ^ filled the office of legate, from 1139 to 1144, introduced the Blois. practice, is an unwarranted conclusion from the words of the contemporary writer, which seem to refer rather to appeals to his own legatine jurisdiction than to that of the court of Rome But although the custom was older, the frequency of appeal much increased under Stephen. In a legatine council held by archbishop Theobald in the king's presence, in 1151, three appeals were made to the pope ^ We have noted the cases of disputed elections that occurred in his reign. Early in the Multipiica- next reign we find a matrimonial cause, that of Richard Anesty, peals?^*^^ referred to Rome, and the correspondence of John of Salisbury shows that in almost every department of ecclesiastical jurisdic- tion the system was in full working before the election of * Memorials of S. Dunstan, p. 67. ^ See above, vol. i. p. 440. 2 See above, p. 323. * H. Hunt. f. 226. ^ Ibid. 350 Constitutional History, [chap. Becket to the primacy^. By the Constitutions of Clarendon by^Henrjai ^^^^T attempted to stop or at least to control it. He forbade in the Con- beneficed ecclesiastics to quit the realm without licence, and, stitutions of _ ^ ^ ' ' Clarendon, having provided a regular succession of appellate courts from that of the archdeacon to that of the archbishop, ordered that without royal assent controversy should proceed no further^. This restriction of the liberty of appeal was one of the great points of the struggle with Becket, and, when the king was forced to abandon the Constitutions, he was made to swear in a special clause that he would not impede nor allow others to impede the free exercise of the right of appeals in ecclesias- tical causes, provided that the appellants might, if they were suspected, be called upon to give security that they would not SthdSra ^^^^ harm the king or the kingdom ^ But although the king was thus obliged to surrender one of the most important of the points for which he had contended, and to allow, as the later records of his reign show, constant reference to the pope in cases which the national church was competent to decide, he was able to limit the appeals to strictly ecclesiastical ques- Appeals tions, in some cases to defeat the purpose of the appellants, eluded and . . . j. i ^ evaded. and in others to avoid giving formal recognition to the decisions of the foreign court. In the two famous causes of the next reign, that of the monks of Canterbury against archbishop Hubert, and that of the election to S. David's, the king relied rather on the means which he took to persuade or force the appellants to withdraw the appeal, than on any constitutional right to prohibit it ; and in the Canterbury case Kichard I showed no small skill in prevailing on the parties to accept an arbitration even when the Boman legate was waiting to determine the appeal*. The church history of the thirteenth century, after the collapse of John's attempt to resist Innocent III, Appeals is full of appeals. Falkes de Breaut6 appealed against his out- Henry JII. lawry and banishment, archbishops Bichard and Edmund ap- pealed against. their monks; almost every new bishop had to ^ Feed, i. 20. 2 Select Charters, p. 133. 3 Hoveden, ii. 35; Bened. i. 32, * Epistolae Cantuarienses, pp. 322, 323. XIX.] Appeals to Borne. 351 fight a battle at Eome before be could obtain bis see ; Henry III himself sought in a papal sentence of absolution a release from the solemn obligations by which he had bound himself to his people. With the reign of law which was restored under hislmprove- ^ _ ° _ ^ ment under son, the practice was discouraged and restricted but not for- Edward l. bidden ; its exercise was limited by the certainty that in most cases safer and cheaper justice could be found at home. Yet appeals did not cease, and the custom of seeking dispensations, faculties, and privileges in matrimonial and clerical causes increased. Archbishop Winchelsey had a suit with the monks of S. Auorustine's which lasted for eight years \ Even the Operation of » . . , . . the statute statutes of praemunire did not prevent the suing for justice of prae- in the papal court, in causes for which the English common law provided no remedy. But from the date of this legis- lation this particular practice became less historically impor- tant: the collusion, so to call it, between the crown and the papacy, as to the observance of the statute of provisors, ex- tended also to the other dealings with the Curia. No attempt Diminution 1 1 r» T • 11 num- was made to prevent the sale of dispensations, and when anberandim- appeal was carried to Eome, and the pope had on the usual causes re-° plan appointed judges-delegate to hear the parties in England, Rome, the royal veto was rarely if ever interposed. Probably however such appeals were not numerous, and in comparison with the sums raised by dispensations, the pecuniary results were in- considerable. Still so great was the influence which the Eoman court possessed in all political and social matters, that every bishop had his accredited agent at Eome, and by presents and pensions had to secure the good offices of the several cardinals and other prelates. It is a pitiful thing to read the letters of archbishop Chichele to the great ecclesiastics of the P^nti- ^^e^^o^^^ fical court, or to trace in those of bishop Beckington the litigation, paltry intrigues which determined the action of the supreme tribunal of Christendom. In the fifteenth century, notwith- standing the bold policy of Martin V and the somewhat sub- * Prynne, Eecords, iii. 836. See also a form of appeal by Godfi-ey bishop of Worcester against archbishop Peckham. Thomas, Worcester, App. p. 38 ; and cases of appeal mentioned in the Rolls of Parliament, i. 50, 208 ; ii. 82. 35^ Constitutional History. [chap. missive attitude of the Lancaster kings, the direct influence exerted by the papacy in legal proceedings in England had become very small : questions which had once been bitterly Gradual contested had become matters of compromise ; the papal juris- of import- diction in minor matters had become a thing of course, and ance. greater matters it was seldom heard of. The kings, who freely availed themselves of the powers which they obtained by good understanding with Eome, were tolerant of pretensions which, except in one point, were little more than pretensions. That one point, the drawing of revenue from England, was indeed contested, and now and then was the subject of some sharp recriminations in which the parliament as well as the king had to speak the mind of the nation. But most of the mischiefs caused by the old system of appeal, a system which at once crushed the power of the diocesan and defied the threats of metropolitan and king, were extinguished by the growth of sound principles in the courts of law, by the deter- mined policy of the statute of praemunire, and by the general conviction that the decisions purchased at Rome could not be executed or enforced except with the leave of the courts at home. The papal policy had become obstructive rather than aggressive ; its legal machinery was becoming subservient to royal authority, not a court of refuge or of remedy : and had not the doctrinal reformation given to the remodelled Curia a new standing ground, which on any theory was higher than the old position of territorial and pecuniary adventure into which it was rapidly sinking, the action of the papacy in England might have altogether ceased. It was a curious coincidence that the great breach between England and Rome should be the result of a litigation in a matrimonial suit, one of the few points in which the Curia had continued to exercise any real jurisdiction. The question lu the foregoing outline of the legislative and judicial rela- andlts^^ tions of church and state, the subject of heresy has been set treatment. ^^^^^ f^j. more particular treatment. It is a subject which comes into prominence as the older constitutional questions between the two powers become less important ; and its interest is, from the point at which we have arrived, mainly prospective. It has XIX.] Legislation oiv Heresy. 353 however great importance both legally and socially, and the history of the legislation concerning it, so far as we can now follow it, furnishes most valuable illustrations of the curious interlacing of the spiritual and temporal polities on which we have had again and again to remark. 727. The Ensflish church had up to the close of the fourteenth Immunity , . , , p ^ 1 I'll 1 n of Engl.iiid century been smgularly free from heresy^: it had escaped all from hereti- such horrors as those of the Albigensian crusade, and had witnessed with but slight interest the disputes which followed the preaching of the spiritual Franciscans. Misbelief and apostasy were indeed subjects of inquest at the sheriff's tourn, and the punishment of ' mescreauntz apertement atteyntz' was burning ^. If however there was any persecution of heresy in England before the year 1382, it must have taken the ordinary form of prosecution in the spiritual court ; the heretic when Recognised found guilty would after his forty days of grace be committed to eccSasti- prison by the writ ' de excommunicato capiendo,' or ' significavit,' until he should satisfy the demands of the church ^ But it is highly improbable that if any such cases occurred the scrutiny of controversial historians and of legal antiquaries should have alike failed to discover them. The first person against whom any severe measures were Wycliffe the . . . . first impor- taken was J ohn Wycliffe himself. He had risen to eminence as tant person a philosophic teacher at Oxford. Although he was in the main for heresy, a Realist, he had adopted some of the political tenets of the Franciscan Nominalists, and, hating the whole policy of the mendicant orders, had formed views on the temporal power of ^ The early cases of medieval heresy in England are these ; (i) the ap- pearance of certain 'pravi dogmatis disseminatores ' in 1165 or 1166 ; they were ' Publicani,' and spoke German, and were condemned in a council held at Oxford to be branded, flogged and excommunicated, and proscribed by the Assize of Clarendon. They quitted England after making one convert ; E. Diceto, i. 318 ; Will. Newb. lib. ii. c. 13. (2) In 1222 a deacon who had apostatised to Judaism was condemned in a council at Oxford and burned ; Ann Wykes, p. 63; or hanged, M. Paris, p. 315. (3) In the troubles of the Franciscans, some of the unfortunate friars are said to have perished in England; Ann. Mels. ii. 323; but the authority for the statement is insufficient. See above, vol. ii. p. 470. ^ Britton. i. 42, 179; cf. Fleta, p. 113. 2 Gibson, Codex, p. 1 102; Rot. Claus.(ed. Hardy), ii. 1 66; Rot. Pari. iii. 12S. VOL. III. 354 Constitutional History. [chap. the papacy akin to those of Marsilius and Ockham, blending with them the ideal of apostolic poverty as the model of clerical Develop- life. As his opinions in the later years of his life developed mentof his . . , , , , views. rapidly, it is not surprising that he came to look on the sacramental system of the medieval church with suspicion and dislike, as the real basis on which papal and clerical authority rested. Speculations on philosophical dogmas, and a certain amount of loose thought on doctrinal matters, the age of Edward III easily tolerated ; archbishop Sudbury, if he were not afraid of "Wycliffe, was not actively hostile to him ; he had friends at court, and his reputation was so high that he was employed by the king in the negotiations with the pope which were held at Bruges in 1374. It was his share in the anti- clerical policy broached by the earl of Pembroke in 1371, and by John of Gaunt in 1376, which drew down upon him the First at- hostility of the bishops \ The convocation which met Feb. 3, trybim. 1377, insisted on the restoration of bishop Wykeham, on whom John of Gaunt had avenged the humiliation which he had received in the Good Parliament, and urged the prelates to attack Wycliffe, whom they regarded as the chief counsellor of their great enemy. He was accordingly on the 29th brought before the bishops at S. Paul's ; but the affray between his noble protectors and the citizens of London, provoked by the insult offered to bishop Courtenay, prevented the trial from proceeding, and the precise charges then laid against him are Second unknown ^. A few months after the pope, under the influence attempt. friars, urged the bishops to attack him again, and in his letters distinctly alleged Wycliffe's following of Marsilius of Padua and John de Janduno as proving him to be a heretic ^ Again a prosecution was attempted ; Wycliffe was brought before a body of bishops at Lambeth, but again a popular tumult, encouraged by the attitude of the court, put * See above, vol. ii, pp. 420, 436, 438. ^ The annalists give a sketch of the heresies generally imputed to Wycliffe, but not the precise points on which the investigation was attempted in 1377- Cont. Murimuth, pp. 222-224; Wals. i. 325. Cf. Shirley, Fasc. Zizan. pref. p. xxvii. ^ By letters dated May 22, 1377; Wals. i. 345 ; Chr. Angl. p. 174. XIX.] Prosecution of cliff e. 355 an end to the trial. Although he lived six years longer, and by his His opinions attacks on the sacramental system exposed himself, far more than before, to charges of doctrinal heresy, and although his opinions were formally condemned, no further attempt was made to molest him personally. Thus his opinions regarding the wealth and power of the clergy were the occasion of the first attack upon him ; the pretext of the second was his theory on the papacy ; and he was not brought to trial for his views on the sacraments. Of the . spiritual, the philosophical, and the political elements in WyclifFe's teaching, the last was far the most offensive to the clergy and the most attractive to the discontented laity. In "Wyclifife himself there is no reason to doubt that all the three were matters of conviction ; but neither is there any reason to doubt that the popular favour which attended on his teaching was caused mainly by the desire for social change. Both he and his ad- versaries recognised the fact that on the sacramental system the practical controversy must ultimately turn ; the mob was attracted by the idea of confiscation. As soon as the alarm of Wat Tyler's rising had subsided, Legislation Courtenay, who had succeeded the murdered Sudbury as arch- heresy iu bishop of Canterbury, undertook the task of repressing the new heresy which Wycliffe's emissaries were spreading at Oxford and in the country at large. In the first parliament of 1382 he procured the passing of an act against heretic preachers. That parliament sat from May 7 to May 22, and its acts were promulgated on the 26th ; the statute touching heresy stated that unlicensed preachers of heresy, when cited before the ordinaries, refused to obey and drew people to hear them and to maintain them in their errors by great 'routs;' it enacted that commissions should be directed out of chancery to the sheriffs and others, to arrest the particular persons certified by the bishops to be heretics or favourers of heresy, that the slierififs should arrest them, and they should be held in strong prison until they satisfied the church ; in other words, instead of waiting until the heretic had been tried, found guilty, and excommunicated, the sheriff was to arrest under a commission from the chancellor issued on A a 2 35^ Constitutional History, [chap. the bishop's certificate^. This was not all: on the 17th of May the archbishop had assembled a body of bishops, jurists, and divines, who drew up a series of propositions which were ascribed to the heterodox preachers and which they pronounced Council of to be heretical ^. During the consultations of this body, which quake.' ' lasted until May 21, an earthquake was felt in London, which caused no small consternation, and the heretics regarded it as Hoyai a divine interposition in their favour^. On the 12th of July letters the archbishop obtained from the king letters empowering the bishops to arrest all persons who maintained the condemned propositions, to commit them to their own prisons, or to those of other authorities, and to keep them there until the council should determine what was to be done with them A brisk series of prosecutions followed during the summer ; trials were held and excommunications issued ; but the delinquents sub- mitted ; and when in the October parliament the knights of the shire insisted that the statute of May, not having duly Repeal of passed the commons, should be repealed, all attempts at further the statute. . i i ^ n • r mi i it , , persecution ended tor the time^. The clergy had to content themselves with the old process of the spiritual courts^; the Lollard party were emboldened to bring before parliament the extravagant propositions of their rashest leaders Wycliffe died in 1384; soon after the political troubles of Richard's reign threw the religious difficulty altogether into the shade ; the condition of the papacy was not such as to invite Prosec^ions critical examination. After the victory of the appellants in 1388 tations. I'oyal letters were issued for the seizure of heretical books and the imprisonment of heretical teachers^, and in 1389 an attack made by Courtenay on the Leicestershire Lollards, under the royal ^ Kot. Pari. iii. 125; Stat. 5 Ric. II, p. 2. c. 5 ; Statutes, ii. 25. 2 Wilkins, Cone. iii. 157 sq. ; Fasc. Ziz. pp. 272 sq. 3 WyclifFe, Trialogus, iv. 27, 36, 37; Fasc, Ziz. p. 283. * Wilkins, Cone. iii. 156. Letters in the same sense were directed to the chancellor of Oxford ; ib. p. 167 ; Fasc. Ziz. pp. 312 sq. ^ Rot. Pari. iii. 141 ; see above, vol. ii. pp. 470, 471, ^ See for example the injunctions issued by bishop Wakefield of Worcester in 1387; Wilk. Cone. iii. 202 ; Thomas, Wore, App. p. 123. Fasc. Ziz. pp. 360-369 ; above, vol. ii. p. 488. 8 Wilk. Cone. iii. 191; above, vol. ii. p. 488; Prynne, 4th Inst. pp. 396-398- XIX.] Statute ' de Haeretico.^ 357 letters of 1382, ended in the submission of the accused ^ In 1 39 1 the prosecution of Swynderby showed that the prelates had no other legal weapon against the heretics than the old spiritual process, whilst the heretics took care not to provoke extreme measures by their obstinacy ^. A long manifesto of the party, presented in parliament in 1395, roused Richard himself to take measures of precaution, and suggested further proceedings ^. In 1396 Thomas Arundel succeeded to the primacy; he im- The statute mediately held a council which condemned the heretical propo- co? passed " sitions* ; but political affairs prevented any new legislation until, ^" in 1 40 1, having obtained the promise of aid from the king and the help of a sympathetic parliament, he procured the passing of the statute 'de haeretico V This act went far beyond that of 1382, both in its description of the evil and in the nature of the remedy prescribed. A certain new sect had arisen which usurped the office of preaching, and which, by holding unlawful conventicles, teaching in schools, circulating books and promoting insurrec- tion, defied all authority ; the diocesan jurisdiction was helpless without the king's assistance, for the preachers migrated fromTenourof t'll6 set diocese to diocese, and contemned the citations of the courts ; the prelates and clergy, and the commons also, had prayed for a remedy, the former in a long, and the latter in a brief peti- tion; in conformity with their request the king in the usual form granted, established, and ordained that none should pre- sume to preach openly or privately without the licence of the diocesan except curates in their own churches, and that none should teach heresy, hold conventicles, or favour the new doctrines : if any should offend, the diocesan of the place should ' Wilk. Cone, iii, 208 sq. =^ Swynderby's appeal (Foxe, Acts and Monuments, iii. 127) states distinctly that after excommunication the bishop must seek the succour of the king's law and ' by a writ of significavit put a man in prison.' Death is the punishment of heresy, but the sentence cannot ' be given without the king's justices ;' ib. 3 See above, vol. ii. pp. 488, 489. Royal letters of the year 1394, against a heretic in Hereford, are in Prynne, 4th Institute, pp. 227, 228, and pro- ceedings against Wycliffe's books were constantly going on at Oxford during these years, * Wilk, Cone. iii. 227 sq. * See above, p. 32. 358 Constitutional History. [chap. statute 'de cause him to be arrested and detained m bis prisons till haeretico.' . . . i • i i i i canonical purgation or abjuration, proceedings lor which should take place within three months of the arrest : if he were convicted he should be imprisoned by the diocesan according to the measure of his default, and fined proportionably ; but if he should refuse to abjure, or relapse after abjuration, so that according to the canons he ought to be left to the secular court, he should be given up to the sheriff or other local magistrate and be pubHcly burned \ By this act then the bishop had authority to arrest, imprison, and try the criminal within three months, to detain him in his own court, and to call in the sheriff to burn him. The parliament which passed the statute broke up on the i oth of March. Trial and The archbishop however had not waited for this to make execution -i ^^^^ -i • 1 1 f>( 1 • ofSawtre. an example. The heretic clerk Sawtre during the session oi parliament had been" brought before the bishops in convoca- tion, tried and condemned'^. On the 26th of February the king's writ was issued for his execution. The coincidence of the two events is somewhat puzzling : the execution of Sawtre under the royal writ has led the legal historians to believe that prior to the passing of the act of 1401, it was possible, in the case of a condemned heretic, for the king to issue a writ Question of ' de haerctico comburendo ' analogous to the writ ' de excom- the writ 'de . .loj-r. n - pii-i haeretico municato capiendo^. But no other instance of the kind can be rendc' found ^ ; and most probably no such process had ever been followed. Why Arundel should have hurried on Sawtre's exe- cution by royal writ instead of waiting until by his own order to the sheriff the sentence could have been enforced under the act, is not clear; unless, as there is some authority for sup- posing, he anticipated a popular attempt at rescue °. It was ^ 2 Hen, TV, c. 15 ; Statutes, ii. 125. 2 Wilk. Cone. iii. 254. ^ Blackstone, Comm. iv. 46. * Although Blackstone declares that a writ of the kind is found among our ancient precedents, and refers to Fitz Herbert, Natura Brevium, 269, the only example of the writ given there is the writ in Sawtre's case ; and Fitz Herbert's argument, that such a writ could only issue on the certificate of a provincial synod and was not a writ of course but specially directed by the king in council, is based on that single example. ^ Adam Usk (p. 4) mentions an alarm of a Lollard rising in London during this session of parliament. XIX.] Petition against Lollard^. 359 under these circumstances that the first execution for Lollard First execu- tion for heresy took place in England. By the laws and customs otLollardy. foreign states burning was the regular form of execution for such an offence ; in England it was the recognised punishment due for heresy in common with arson and other heinous crimes^; and there was nothing apparently in its enforcement here that shocked the feelings of the age. The act of 1401 neither stopped the growth of heresy nor insufflcien- satisfied the desires of the persecutors. The social doctrines statute, with which Wycliffe's rash followers had supplemented the teaching of their leader, had probably engaged the sympathies of the discontented in the project of unseating the new king. In the parliament of 1406 a petition was laid before Henry, Great^pet^- supported by the prince of "Wales and the lords, and pre- sented by the speaker of the commons^. In this document the action of the Lollards is described as threatening the whole fabric of society ; the attacks on property endangered the position of the temporal and spiritual lords alike ; to them were owing the reports that king Richard was alive and the pretended prophecies of his restoration : the king was asked to enact that any persons promulgating such notions should be arrested and imprisoned, without bail except by undertaking before the chancellor, and should be brought before the next parliament, there to abide by such judgment as should be rendered by the king and the lords ; that all lords of franchises, justices, sheriffs, and other magistrates should be empowered and bound to take inquest of such doings by virtue of this statute without any special commission, and that all subjects should be bound to assist. Henry agreed to .the petition, and the statute founded upon it was ordered to take effect from the approaching Epiphany and to hold good until the next par- liament. Strange to say, nothing more was heard of it ; whether No result it was merely intended as a temporary expedient, whether the Lollard knights procured its suppression, or the archbishop had seen the impolicy of confusing the spiritual and temporal jurisdictions, or whether it was not a premature attempt of the ^ Above, p. 353 ; Britten, i. 42. 2 j^q^. Pail. iii. 583, 584. 360 Constitutional History, [chap. prince to legislate on the principle which he adopted after the death of Arundel and when he was king himself, it is not Different possible to decide. Opinions have been divided as to the pur- views of this ... . . proposed port of the petition, and it has even been maintained that it measure. . was intended to substitute for the ecclesiastical persecution a milder form of repression over which the parliament could exert more direct authority ^. But the language of the petition carefully considered seems to preclude any such conclusion; and it seems best to refer the disappearance of the statute either to a jealousy between the prince and the archbishop, of which there are other traces at a later time, or to a feeling of distrust existing between the spiritual and secular courts. The patent rolls of the ninth year of the reign contain several commissions issued by the king's authority for the suppression of heresy and the ai'rest of Lollard preachers after royal inhi- bition ; it is possible that these measures may have been taken under this statute. The next parliament was that of Gloucester, in October 1407; nothing however was done respecting the Lollards in that session. Although Arundel found time to issue a series of con- stitutions against them in 1409, the condition of the papacy itself occupied the minds of the bishops too much during the following years to allow time for the repression of heresy. In 1410 a parliamentary struggle took place, of which some account has been already given ^. The knights of the shire petitioned, according to Walsingham, that convicted clerks might not be handed over to the bishops' prisons, and that the recent statute according to which the Lollards whenever and wherever arrested might without royal writ be imprisoned in the nearest royal prison, might be modified^. A petition of similar character appears on the rolls ; the purport of which is that persons arrested under the provisions of the act of 1401 may be admitted to bail and make their purgation in the county in which they are arrested, such arrests to be henceforward made ^ Hallam (Middle Ages, iii. 90) supposes that the clergy prevented it from appearing on the Statute Roll. 2 Rot. Pat. Calend. pp. 254, 256. 2 Above, pp. 63, 64. * VVals. ii. 283. Arundel's constitu- tions. Petition of 1410. XIX.] Legislation of Kenry V. by the king's officers without violent affray ^ To this prayer the king returned an unfavourable answer, and it is probable that this was the petition which the commons asked to have back, so that nothing miofht be enacted thereupon^. In this Proposal of ^ ^ ^ confiscation. parliament also was first broached the elaborate scheme of con- fiscation which became a part of the political programme of the Lollards Durins: this session a frightful execution took place Execution of p 1 1 . . , . . Badby. under the act oi 1401, and on this occasion the victim was a layman : John Badby, a tailor of the diocese of Worcester, had been excommunicated for heresy by the bishop and had refused to abjure ; he was brought before the archbishop and clergy in convocation and, persisting in his refusal, was handed over to the secular arm with a petition, addressed by archbishop Arundel to the lords, that he might not be put to death Whether the petition were a piece of mockery or not, the unfortunate man was burned, the prince of Wales being present at the execution and making a vain attempt to procure a recantation. This event took place on the i oth of March ; it seems to have been the first execution under the act, and accordingly in the record of the convocation the whole statute is recorded apparently in iustification ^ In the following month Sir John Oldcastle's Beginnins: of Oldcastle's church at Cowling was placed under interdict in consequence troubles, of the contumacy of his chaplain, but the sentence was remitted within a few days and Oldcastle as well as his followers had peace until the death of the king. On the accession of Henry V Arundel as we have seen re- Legislation of Henry > newed his attack on the Lollards : Oldcastle was tried, con- against . . heresy. denmed and allowed to escape from prison. The abortive attempt at revolution followed^; and Henry V in the par- liament of 14 1 4 proceeded to legislate finally and more fiercely against the remnant of the heretic party. Arundel was dead, and whatever had been his influence in forward- ing or in preventing the measures proposed in 1406, the * Rot. Pail. iii. 626. 2 j^^^ ^dsA. iii. 623 ; above, p. 63. 3 Above, pp. 63 sq. * Wilk. Cone. iii. 324-329 ; Foxe, iii. 235-238 : Wals. ii. 282. 5 Wilk. Cone. iii. 328. « lb. iii 330, 331. ' See above, pp. 78 -80. 3^^ Constitutional History. [chap. Develop- king proceeded to legislate on the principle which was then policy. propounded. That principle was to make heresy an offence against the common law as against the canon law, and not merely to use the secular arm in support of the spiritual arm, but to give the temporal courts a co-ordinate power of proceeding directly against tlie offenders. If we suppose that Henry V was now acting under the advice of the Beaufort?, as may be generally assumed when he acted in opposition to the advice of Arundel, this policy may be described as the policy of the Beauforts; and the cardinal's expedition to Bohemia may be regarded as a later example of the same idea of intolerance. But it is not necessary to look for the suggestion further than to the king himself, who, in the full belief of his duty as maintainer of orthodoxy, no doubt thought it incumbent upon him to place Tenour of himself in the van of the army of the church. The purport of the act of . . r i MM- the act is as follows : in the view of the recent troubles caused by the Lollards and their supporters the king, with the advice of the lords and at the prayer of the commons, enacts that the chancellor, treasurer, judges, and all officers of justice shall on their appointment swear to do their utmost to extirpate heresy, to assist the ordinaries and their commissaries ; all persons con- victed before the ordinaries and delivered over to the secular arm, are to forfeit their lands as in case of felony, the lands which they hold to the use of others being however excepted ; they are also to forfeit their chattels to the king. So far the act is only an expansion of the law of 1401 ; the following clauses go further : the justices of the bench, of the peace, and of assize are now empowered to inquire after heretics, and a clause to that effect is to be introduced into their commissions : if any be so indicted the justices may award against them a writ of capias which the sheriffs shall be bound to execute. The persons ar- rested are to be delivered to the ordinaries by indenture to be made within ten days of the arrest, and are to be tried by the spiritual court: if any other charges are laid against them in the king's court they are to be tried upon them before being delivered to the ordinary, and the proceedings so taken are not to be taken in evidence in the spiritual court; the person XIX.] Later Legislation. 3^3 indicted may be bailed within ten days ; the jurors by whom the inquest is to be taken are to be men who have at least five pounds a year in land in England or forty shillings in Wales ; if the person arrested break prison before acquittal the king shall have his chattels, and also the profits of his lands until he be forthcoming again, but if he dies before conviction, the lauds go to his heirs ^ This is the last statute against the Lollards, and under it Later at- . tempts to most of the cruel executions of the fifteenth and sixteenth legislate, centuries were perpetrated. It was not however the last occasion upon which parliamentary action was attempted. In 1422 the Lollards were again formidable in London, and the parliament, on the petition of the commons, ordered that those who were in prison should be at once delivered to the ordinary according to the statute of 141 4 ; a similar order was given in 1425^. In 1468 Edward IV, with exceptional tenderness, re- jected a petition that persons who had committed the acts of sacrilege which were attributed to the Lollards should be regarded as guilty of high treason ^. Outside the parliament the still unextinguished embers of Change of Ti- 1 T 11 1 • n -. .1 1 • • political fe< political Lollardy continued to burn; m the attempted rising ing with of Jack Sharpe in 1431 the Lollard petition of 1410 was Kards!*' republished and circulated^, and it is not improbable that some Lollard discontent was mingled with the popular com- plaints in 1450. But the influences which had supported the early Wycliffites were extinct. The knights of the shire no longer urged the spoliation of the clergy; the class from which they were drawn found plunder enough elsewhere ; the universities produced no new schoolmen; the friars expe- rienced no revival or reform ; and, although learning was liberally nurtured by the court, freedom of opinion found little latitude. Bishop Pecock of Chichester, who had endeavoured to Case of use against the erroneous teaching of the Lollards some contro- Fecock. versial weapons which implied more independent thought than ^ 2 Hen. V, Stat. i. c. 7 ; Statutes, ii. 181 sq. ^ Rot. Pari. iv. 174, 292. 3 lb. V. 632. * Above, p. 11 2. 3^4 Constitutional History. [chap. his brethren could tolerate, was driven out of the royal council with one accord by the lords, was tried for heretical opinions before the archbishop and bishops of his province, and con- demned \ Like so many of the earlier Lollards he chose submission rather than martyrdom, abjured and recanted ; in spite of papal mediation he was not restored to his see, but kept in confinement, and remained a pensioned prisoner as long as he lived. He is almost a solitary instance of anything like spiritual or intellectual enlightenment combining with heretical leanings to provoke the enmity or jealousy of the clergy. The political views of the Lollards too were a very subor- dinate element in the dynastic struggle of the century. It is certainly curious that the early Lollard knights came chiefly from those districts which were regarded as favourable to Hichard II, to the Mortimers, and afterwards to the house of York. Hereford- shire, Gloucestershire, Bristol, and now and then Kent, are the favourite refuge of the persecuted or the seed-plots of sedition ; Jack Sharpe of Wigmoreland led the rising of 1431, as the so- called John Mortimer led that of 1450. But the common idea of resistance to the house of Lancaster was probably the only link which bound the Lollards to the Mortimers, at least after the old court influences of Richard's reign were extinguished. There were Lollards in Kent and London as well as Yorkists, but the house of York when it came to the throne showed no more favour to the heretics than the house of Lancaster had done. It is difficult to form any distinct notion of the way in which the statutes against the Lollards operated on the general mass of the people ; they were irregularly enforced, and the number of executions which took place under them has been very vari- ously estimated 2. Although the party had declined politically, * Wilkins, Cone. iii. 576; Babington, Pecock's Repressor, vol. i, pref. pp. xxxvi-lvii. ^ Adam of Usk (p. 3), in drawing a parallel between the Israelites who worshipped the golden calf, and the Lollards, has some words which might lead to misapprehension ; they must be read as follows, ' Unde in pluribus regni partibus et praecipue Londonia et Bristolia, velut Judaei ad monteiu Oreb propter vitulum conflatilem mutuo in se revertentes, xxiii milium de suis miserabilem patientes casum merito doliierunt, Anglic) inter se de XIX.] Social Position of the Clergy. 3^5 so far as not to be really dangerous at any time after Oldcastle's Some liberty death, considerable liberty of teaching must have been allowed, allowed. or otherwise bishop Pecock's historical position is absolutely unintelligible. If he were, as he thought, a defender of the faith, the enemies against whom he used his controversial weapons must have existed by toleration ; if he were himself heretical, the avenues to high promotion must have been but negligently guarded. But the whole of the age in which the Lollard movement was working was in England as elsewhere a period of much trouble and misgovernance ; men, parties, and classes inconsis- 1 1 1 1 1 1 1 11 tenciesof were jealous and cruel, and although there was an amount oi the age. intellectual enlightenment and culture which is in contrast with the preceding century, it had not yet the effect of making men tolerant, merciful, or just. Tiptoft's literary accomplishments left him the most cruel man of his cruel time. In the cliurch the gentle and munificent wisdom of men like Chichele and Waynflete had to yield the first place in power to the politic skill and the unscrupulous partizanship of men like Bourchier, who persecuted the assailants of truths which had little or no moral influence upon the persecutor. 728. The social importance of the clergy in England during Political and the middle ages rested on a wider basis than was afi'orded by of the clergy. their constitutional position. The clergy, as a body, were very rich ; the proportion of direct taxation borne by them amounted to nearly a third of the whole direct taxation of the nation ; fide antiqua et nova altercantes omni die sunt in puncto quasi mufcuo ruinam et seditionem inferendi.' There is no statement of 23,000 execu- tions, but of the danger of internal schism. The London chroniclers furnish a considerable number of executions under Henry V and Henry VI ; thirty- eight persons were hanged and burned after Oldcastle's rising in 1414; in 1415 were burned John Claydon and Richard Turmyn ; Gregory, p. 108 ; in 1417 Oldcastle; in 1422 William Taylor, priest, p. 149 ; in 1430 Richard Hunden, p. 171 ; in 1431 Thomas Bagley, p. 171 ; Jack Sharpe and five others were hanged, p. 172 ; in 1438 John Gardiner was burned, p. 181 ; in I440 Richard Wych and his servant, p. 183; in 1466 William Balowe was burned, p. 233 ; in 1467 four persons were hanged for sacri- lege, p. 23.!;. Foxe adds a few more names; Abraham, 'White, and Waddon, 1428-1431 (vol. iii. p. 587) ; John Goose in 1473, p. 755. There were many prosecutions, as may be seen in the Concilia as well as in Foxe, but in the vast majority of cases they ended in penance and recanta- tion. 366 Constitutional History. [chap. they possessed in the constitution of parliament and convoca- tion a great amount of political power, a majority in the house of lords, a recognised organisation as an estate of parliament, two taxing and legislating assemblies in the provincial convoca- Their social tions; they had on their great estates jurisdictions and franchises equal to those of the gi'eat nobles, and in the spiritual courts a whole system of judicature parallel to the temporal judicature — but more inquisitorial, more deeply penetrating and taking cognisance of every act and every relation of men's lives. They had great immunities also, and a corporate cohesion which gave strength and clignity to the meanest member of the class. Great nuin- One result of these advantages was the existence of an ex- pers9ns ceeclingly large number of clergymen, or men in holy orders. The lists of persons ordained during the fourteenth and fifteenth centuries are still extant in the registers of the bishops; the ordinations were held at least four times a year, and the number admitted on each occasion was rarely below a hundred. In 1370, bishop Courtenay, acting for the bishop of Exeter, or- dained at Tiverton 374 persons ; 163 had the first tonsure, 120 were ordained acolytes, thirty subdeacons, thirty-one deacons, and thirty priests \ The ordination lists of the bishops of Durham ^ furnish numbers smaller than these, but still so large as to make it a difficult question how so large a body of can- didates for preferment could be provided for. To these lists the mendicant orders contribute but a small per-centage, the * Maskell, Mon. Rit. iii. Thomas, in the Survey of Worcester, gives the following numbers : — Acolytes. Subdeacons. Deacons. Priests. Total. At Cirencester, June I, 1 314 105 140 133 85 463 Worcester, Dec. 21, 13 14 50 115 136 109 310 Worcester, Dec. 22, 1319 43 96 91 230 Ambersley, Dec. 18, 1322 120 102 50 60 332 Tewkesbury, Trinity, 1329 218 47 79 62 406 Campden, Tiinity, 1331 221 100 47 51 4^9 Ambresley, June 2, 1335 251 115 133 22 521 Worcester, April 9, 1337 39 1 180 154 124 849 Tewkesbury, June 6, 1338 204 141 117 ^49 ^^3- 2 In the Registrum Palatinum, vol. iii. One year's ordinations taken at random may sufl&ce : Acolytes. Subdeacons. Deacons. Priests. Total. In 1 341 at Pentecost 86 26 31 16 159 in September 16 10 18 19 63 in December 11 14 5 8 38. XIX.] Nuynhers of the Clergy. - 367 persons who supplied the place of non-resident pluralists, or who acted under the incumbents as parish priests, were not numerous, the whole number of parish churches being not much over 8000 ; a large proportion of candidates were ordained on the title of chaplaincies, or rather on the proof that they Large pri- • • vil 6^6(1 were entitled to small pensions from private persons who thus class ; qualified them for a position in which, by saying masses for the dead, they could eke out a subsistence ^ The persons so ordained were the stipendiary priests, who in the reign of Henry IV were so numerous that a poll tax of six and eiglitpence upon them formed an important branch of the revenue ^. They were not represented in convocation, but they had every clerical immunity, and they brought a clerical interest into every family. A slight acquaintance with medieval wills is enough to prove that almost every main who was in such circumstances as made it necessary for him to make a will, had sons or near kins- men in orders. Sometimes they were friars ; more generally, drawn from , , . , . all ranks of in the yeoman class, chantry priests; the country knights society, had kinsmen in their livings and among the monks of the great monasteries; the great nobles and the king's ministers looked on the bishoprics as the provision for their clerical sons. The villein class, notwithstanding legal and canonical hindrances, aspired to holy orders as one of the avenues to liberty ^. And this great diffusion of interest must be set against all general statements of the unpopularity of the clergy in the later middle ages. There were just complaints of unfair distribution of patronage, and of concentration of great endowments in few * Thus ' Willelmus de Blenkow, ad titulum V. Marcarum de Johanna Forestario. de quo reputat se contentum ;' Keg. Pal. iii. 137. The mischiefs arising from this system are forcibly stated by archbishop Islip ; ' curas animarum gerere negligunt, et onera curatorum caritate mutua supportare ; quin immo eis penitus derelictis ad celebranda annualia et ad alia pecu- liaria se conferunt obsequia,' &c. Wilkins, Cone. iii. i ; cf. pp. 50, 51, 213. The same archbishop fixed a maximum amount of stipend; ib. p. I35' ' See above, p. 47. ^ The restriction on the liberty of unfree persons to be ordained dates from very early times, and was intended no doubt to prevent persons seeking ordination from a worldly motive as well as to save the rights of the master over his dependents. In the Apostolic Canons it is based on the latter reason. See Maskell, Mon. Rit. iii. pp. xcvii, xcviii; and above, vol. ii. p. 463, vol. i. p. 431 ; Deer. p. i. dist. 54; Greg. ix. lib. i, tit. 18. 368 Constitutional Histori/, [chap. Classes from which the bishops were taken. Officials promoted. Scholars promoted. Eoyal and noble Prelates from the mendicant orders. hands; but against class jealousy there was this strong safe- guard : every tradesman or yeoman might live to see his son promoted to a position of wealth and power. Some important generalisations may be drawn from a study of the episcopal lists from the time of the Conquest down- wards : under the Norman kings the sees were generally occupied by men of Norman birth, either such as were ad- vanced by Lanfranc on the ground of learning and piety, or such as combined with distinguished birth that gift of organi- sation which belonged to the Norman feudalist ; to one class belonged Lanfranc himself and Anselm, to the other Osmund of Salisbury, who was a Norman baron, but also the reformer of the medieval liturgy, and William Giffard the minister of Henry I. As the ministerial system advanced, the high places of the church were made the rewards of official service, and official servants, having no great patrimonies, cultivated the cathedral foundations as a provision for their families; hence arose the clerical caste which was so strong under Henry I and Stephen. Here and there we find a scholar like Robert of Melun, or Gilbert the Universal. Already the great nobles showed their appreciation of the wealth of the church ; Everard bishop of Norwich was of the house of Montgomery, Henry of Win- chester was a grandson of the Conqueror, and the pious Roger of Worcester, the friend of Becket, was a son of Earl Robert of Gloucester. Hugh de Puiset, bishop of Durham, and S. "William, archbishop of York, were nephews of Stephen. Nor was the example lost upon the later kings or barons : Henry II gave the archbishopric of York to his son ; Henry III obtained Canterbury for his wife's uncle, and Winchester for his own half-brother ; Fulk Basset, bishop of London, was a baron both temporal and spiritual. The noble Cantilupes served their generation as bishops of Hereford and Worcester. The next age saw the culmination of the power of the mendicant orders ; Kilwardby, Peckham, and Bradwardine sat at Canterbury ; an- other avenue to power was thus open to men of humble birth, and when the short-lived popularity of the friars was over, the avenue was not closed. Wykeham, Chichele, and XIX.] Ecclesiastical Divisions. 3^9 Waynflete rose by other means, services done in subordinate office, but they amply justified the system by which they rose in the great collegiate foundations by which they hoped to raise the class from which they sprang. Side by side with them are Preponder- found more and more men of noble names, Beaumont, Berkeley, James. ^ Grandison, Charlton, Despenser, Courtenay, Stafford, Beaufort, Neville, Beauchamp, and Bourchier, taking a large share, but not the whole, of the great dignities. Last, a Wydville rises under Edward IV j and then under Henry VII a change takes place ; new men are advanced more frequently, and merito- Meritorious rious service again becomes the chief title to promotion ; the tftteto pro- humiliation of the baronage has perhaps left few noble men°^°*^°"' capable of such advancement. In this, as in some other points, medieval life was a race for wealth ; the poor bishoprics were left to the friars ; scarcely any great man took a Welsh see except as a stepping-stone to something better. Still it may GeneraMif- fairly be said that during the latter centuries a poor and humble clerical . . , o T ii . interest, origin was no bar to great preferment ; and the meanest stipen- diary priest was not only a spiritual person, but a member of an order to which the greatest families of the land, and even the royal house itself, thought it no humiliation to contribute sons and brothers. Against this diffusion of influence and interest has to be internal set the fact, that it was only on points of the most general the clerical and universal application that a body so widely spread, and so variously composed, could be brought to act together. Against any direct interference from the temporal power, unauthorised taxation or restrictive legislation, the clergy might act as a body ; but within the sphere of ecclesiastical politics, and within the sphere of temporal politics, they were as much liable to division as were the baronage or the commons. The seculars hated the regulars ; the monks detested the friars ; the Domi- nicans and Franciscans regarded one another as heretics; the Cistercians and the Cluniacs were jealous rivals : matters of ritual, of doctrine, of church policy — the claims of poverty and chastity, the rights and wrongs of endowments — the merits of rival popes, or of pope and council — licenced and unlicenced VOL. III. B b 370 Constitutional History. [chap. preaching, licenced and unlicenced confession and direction — were fought out under the several standards of order and pro- fession. And not less in the politics of the kingdom. As in early days the regulars sustained Becket and the seculars sup- Political par- ported Henry II, under John the clergy were divided between among the the king and the bishops ; the Franciscans of the thirteenth century were allied with Grosseteste and Simon de Montfort ; under Edward III they followed Ockham and Marsilius, and linked Grosseteste with Wyclifife ; under Henry IV they fur- nished martyrs in the cause of restoration. In the great social rising of 138 1, clergy as well as laymen were implicated ; secular priests as well as friars died for Richard II ; and later on the whole body of the clergy was arrayed for or against one of the rival houses. It was well that it was so, and that the welfare of the whole English church was not staked on the victory of a faction or a policy, even though the faction may have been legally or the policy morally the best. The clergy could no longer, as one united estate, mediate with authority between parties, but they might, and probably did, help on reconciliation where reconciliation was possible, and somewhat humanise the struggle when the struggle must be fought out. Kffusionof 729. The existence of a clerical element in every class of elementary . . . . education society, and in so large proportion, must in some respects have from the been a sri'eat social benefit. Every one admitted even to minor widespread ■, ^ ii- clerical orders must have been able to read and write ; and for the sub- deaconate and higher grades a knowledge of the New Testa- ment, or, at the very least, of the Gospels and Epistles in the Missal was requisite \ This was tested by careful examination in grammar and ritual, at every step ; even a bishop elect might be rejected by the archbishop for literary deficiency ; and the ^ The rules on the subject of examination were very strict; see Maskell, Mon. Kit. iii. xcv sq. 2 Thus in 1229 Walter elect of Canterbury was rejected by the pope for failing in his examination ; M. Paris, p. 356. There are some instances in which this was overruled. Lewis Beaumont of Durham could scarcely read the. hard words in his profession of obedience; see vol. ii. p. 318; Robert Stretton elect of Coventry was rejected by archbishop Islip but forced by the king and the pope into his see; he could not read his profession, and it was read for him ; Islip in disgust declined to take part body. XIX.] Clerical Influence. 371 bishop who wittingly ordained an ignorant person was deemed guilty of deadly sin. The great obscurity which hangs over the early history of the universities makes it impossible to guess how large a portion of the clergy had received their education there; but towards the close of the period the foundation of Colleges and n -1 • 1 • 1 • 1 • schools. colleges connected with particular counties and monasteries must have carried some elements of higher education into the remotest districts ; the monastic and other schools placed some modicum of learning within reach of all. The rapid diffusion of Lollard tracts is itself a proof that many men could be found to read them : in every manor was found some one who could Knowledge ' of Latin write and keep accounts in Latin; and it was rather the common, scarcity and cost of books, than the inability to read, that caused the prevalent ignorance of the later middle ages. Some germs of intellectual culture were spread everywhere, and although perhaps it would still be as easy to find a clerk who could not write as a layman who could, it is a mistake to regard even so dark a period as the fifteenth century as an age of dense igno- rance. In all classes above the lowest, and especially in the Active inter- course with clerical class, men travelled both in England and abroad more foreign than they did after the Reformation had suspended religious intercommunion and destroyed the usefulness of ecclesiastical Latin as a means of communication. For clerks, if not for laymen also, every monastery was a hostelry, and the frequent intercourse with the papal court had the effect of opening the clerical mind to wider interests. It would have been well if the moral and spiritual influence Moral infiu- of the clerical order had been equally good ; but, whilst it is tlonable. necessary to guard against exaggerated and one-sided state- ments upon these points, it cannot be denied that the proved abuses of the class go far to counterbalance any hypothetical ad- vantages ascribed to its influence. The majority of the persons in the consecration ; Ang. Sac. i. 44, 449. Eobert Orford elect of Ely was rejected by Winchelsey ' ob minus sufficientem literaturam ' ; on application to the pope he convinced him that he had not failed in his examination but had answered logically not theologically ; ib. p. 641. Giraldus Cambrensis has some amusing stories about the bad Latin of the bishops of his time ; but on the whole the cases of proved incompetence are very few. B b 2 37^ Constitutional Ristory. [chap. Mischief ordained had neither cure of souls nor duty of preaching; arising from p iit the number their spiritual work was simply to say masses for the dead : of half em- , ^ , / , ^ . . ^ ,n . ployed they were not drawn on by the necessities of self-culture clersjy. either to deeper study of divine truth or to the lessons which are derived from the obligation to instruct others ; and they lay under no responsibility as bound to sympathise with and guide the weak. The moral drawback on their usefulness was even more important, because it affected the whole class and not a mere majority. By the necessity of celibacy they were cut off from the interests of domestic life, relieved from the obligations to labour for wives and families of their own, and thus left at leisure for mischief of many sorts. Every town contained thus a number of idle men, whose religious duties filled but a small portion of their time, who had no secular responsibilities, and whose standard of moral conduct was formed Evils result- upon a very low ideal. The history of clerical celibacy, in clerical England as elsewhere, is indeed tender ground'; the benefits which it is supposed to secure are the personal purity of the individual, his separation from secular ways and interests, and his entire devotion to the work of God and the church. But the results, as legal and historical records show us, were very different. Instead of personal purity, there is a long story of licenced and unlicenced concubinage, and, appendant to it, much miscellaneous profligacy and a general low tone of morality in the very point that is supposed to be secured. Instead of sepa- ration from secular work is found in the higher class of the clergy entire devotion to the legal and political service of the country, and in the lower class idleness and poverty as the alternative. Instead of greater spirituality, there is greater frivolity. The abuses of monastic life, great as they may occa- sionally have been, sink into insignificance by the side of this evil, as an occasional crime tells against the moral condition of a nation far less fatally than the prevalence of a low morality. The records of the spiritual courts of the middle ages remain in such quantity and in such concord of testimony as to leave no doubt of the facts ; among the laity as well as among the clergy, of the towns and clerical centres, there existed an amount XIX.] Clerical Influence. 373 of coarse vice wliicli had no secrecy to screen it or prevent it Good cim- Pf. racterofthe irom spreading. The hioner class of the clergy were free from higher clergy. , any general faults of the kind ; after the twelfth century, when many of the bishops were, if not married, at least the fathers of semi-legitimate families, the episcopal character for morality stands deservedly high ; bishop Burnell, the great minister of Edward I, is perhaps an exception ^ ; but there is scarcely a case of avowed or proved immorality on record until we reach the very close of the middle ages, and there is no case of the de- privation of a bishop for any such cause. The great abbots were, with equally rare exceptions, men of high character. It is in the obscurity of the smaller monasteries and in the self-indul- gent, unambitious, and ignorant ranks of the lowest clergy, that we find the vices which called in the former class for summary visitation and suppression, and in the latter for the exercise of that disciplinary jurisdiction which did so much to spread and perpetuate the evils which it was created to cure. For the Abuses of . . 1 1 -1 1 • T . • 1 1 • spiritual spiritual courts, whilst they imposed spiritual penalties, recog- courts. nised perfunctory purgations, and accepted pecuniary fines, really secured the peccant clerk and the immoral layman alike from the due consequences of vice, such as either stricter discipline or a healthier public opinion would have been likely to impose. And in this, as in other particulars, the medieval church in- curred a fearful responsibility. The evils against which she had to contend were beyond her power to overcome, yet she resisted interference from any other hand. The treatment of Their inca- pacity of such moral evils as did not come within the contemplation of reform, the common law were left to the church courts; the church courts became centres of corruption which archbishops, legates, and councils tried to reform and failed, acquiescing in the failure rather than allow the intrusion of the secular power. The spiritual jurisdiction over the clergy was an engine which ^ Burnell is probably the bishop who had five sons, and against whom archbishop Peckham attempted a prosecution in 1279; Wilk. Cone. ii. 40. He was Peckhara's personal rival, and one annalist who mentions his death in 1292 speaks of his ' consanguineas, ne dicam filias' and ' nepotibus suis seu filiis'; Ann. Dunstable, p. 373. 374 Constitutional History. Unwilling- the courts altogether failed to manaefe, or so far failed as to iiess to give . up clerical render reformation of manners by such means absolutely hope- pi'ivilege, > t> less : yet any interference of the temporal courts was resented and warded off until the evil was irremediable, because a clerk stripped of the reality of his immunities, but retaining all the odium with which they had invested him, would have no chance of justice in a lay court. Thus on a small stage was reproduced the result which the policy of the papacy brought about in the greater theatre of ecclesiastical politics. The practical assertion that, except by the court of Rome, there should be no reforma- tion, was supplemented by an acknowledgment of the evils that were to be reformed, and of the incapacity of the court of Rome to cure them : there popes and -councils toiled in vain ; they Vitality of could bear neither the evils of the age nor their remedies. Strange to say, some part of the mischief of the spiritual jurisdiction survived the Reformation itself, and enlarged its scope as well as strengthened its operation by the close temporary alliance between the church and the crown. To this the English church owes the vexatious procedure of the ecclesiastical tribunals and the consequent reaction which gave so much strength to Puri- tanism : nay, Puritanism was itself leavened with the same influences, and instead of struggling with the evils of the system which it attacked, availed itself of the same weapons, met a like failure, and yielded to a like reaction. But on this point, as has been said before, it is useless to dogmatise; and no mere theory, however consistent and perfect in itself, can either insure its own realisation or prove itself applicable to different ages and stages of growth. CHAPTER XX. PARLIAMENTARY ANTIQUITIES. 730. Parliamentary usages, definite or obscure. — 731. Plan of the chap- ter.— 732. Choice of the day for parliament. — 733. Annual parliaments. — 734. Length of notice before holding parliament. — 735. Choice of the place of session. — 736. The Palace of Westminster. — 737. Parliaments out of London. — 738. Share of the council in calling a parliament. — 739. Issue and form of writs. — 740. Writs of summons to the lords. — 741. Writs of the justices. — 742. Writs to the Sheriffs for elections. — 743. County elections. — 744. Return on indenture. — 745. Borough elections. — 746. Contested and disputed elections. — 747. Manucaption and expenses. — 748, Meeting of parliament and opening of the session. — 749. Separation of the houses. — 750. House of Lords. — 751. Ranks of the peerage. — 752. Number of lords temporal. — 753. Number of lords spiritual. — 754. Justices in the House of Lords. — 755. Clerical proctors. — 756. Numbers and distribution of seats in the House of Commons. — 757- Clerks. — 758. The Speaker of the Commons. — 759. Business laid before the houses by the king. — 760. Supply and account. — 761. Form of the grant. — 762. Proceeding in legislation. — 763. The Common petitions. — 764. Form of statutes. — 765. Details of pro- cedure.— 766. Sir Thomas Smith's description of a session. — 767. Judicial power of the Lords. — 768. Prorogation. — 769. Dissolution. — 770. Writ of expenses. — 771. Distinctions of right and privilege. — 772. Proxies of the Lords.— 773. Bight of protest.— 774. Freedom of debate.— 775. Freedom from arrest. — 776. Privileges of peerage. 730. The rules and forms of parliamentary procedure had, before the close of the middle a^es, betnin to acquire that per- Antiquity of <=> ^ o T. A parhamen- manence and fixedness of character which in the eyes of later tary cus- , . , toms. generations has risen into the sanctity of law. Of these rules and forms some are very ancient, and have preserved to the present day the exact shape in which they appear in our earliest parliamentary records ; others are less easily discovered in the 37^ Constitutional History. [chap. Difference in medieval their his- tory. Eecords clear. Usages obscure. Reason for this obscu- rity. chronicles and rolls, and owe their reputation for antiquity to the fact that, when they make their appearance in later records, they have already assumed the prescriptive dignity of immemorial custom. To the former class for instance belong the formulae of the legislative machinery, the writs for assembling parliament, the methods of assent and dissent, the enacting words of statutes, the brief sentence of royal acceptance or rejection ; to the latter class belong the methods of proceeding which are less capable of being reduced to written record ; the machinery of initiation and discussion, of committees and reports ; the process by which a Bill passes through successive stages before it becomes an Act, the more minute rules of debate, and the more definite elaboration of points of privilege. Both classes of forms are subject to a certain sort of expansion ; but the former seems to have reached its full growth before any great development of the latter can be distinctly traced. And this difference is not to be explained on the theory that, as time went on, freedom of debate and activity of discussion compelled the use of new rules and the formation of a customary code, while the more mechanical part of the old system was found to answer all purposes as well as ever. There can be little ques- tion that debates were as fierce and as tedious in the minority of Henry VI as in the troublous days of Charles I. No doubt the public interest in politics, fostered by improved education and stimulated by religious partisanship, gave to the latter a wider in- fluence and made a more distinct impression on national memory. As early as the seventeenth century the speeches of parliamen- tary orators were addressed to the nation at large ; although the publication of the debates was still in the distant future. But the fact that the rule and method of debate does, when it first appears, wear the habit of custom, the constant appeal to pre- cedent and prescription, the whole history and theory of privilege, seem to show that the silence of earlier record is not to be interpreted as negation. A very faint idea of parliamentary activity would be formed from the isolated study of the journals of either house. The rolls of parliament, in like manner, furnish scarcely a skeleton of the proceedings of the earlier sessions. XX.] Tarliamentary Antiquities. Published speeches, the diaries of clerks and members, un- Want of authorised and authorised reports of debate, enable us to realise, the details in the case of the later parliaments, almost all that is historically ° important. For the medieval period we have no such helps ; and for some particular parts of it we have no light at all, or what is more puzzling still, cross lights and discordant and con- tradictory authorities. 731. In the present chapter our design is to collect such Plan of this chapter. particulars as may help to complete our idea of the medieval parliament in its formal aspect, to describe the method of sum- moning, choosing and assembling the members ; to trace, as far as we can, the process of initiation, discussion, and enactment, and to mark the points up to which the theory of privilege had grown at the close of our period. It will be no part of our plan to venture into the more dangerous regions of modern pro- cedure ; but where in the earlier forms the germs of such later developments are discoverable it will be sufficient to indicate them. In pursuance of this plan our first step is to recapitulate the points of interest involved in the determination of the time, place, and forms of summons, for parliament ; the next step is to describe the process of election of the elected members ; we can then proceed to the consideration of the session itself, the arrangement of the houses, their transaction of business, inter- course, prorogation and dissolution ; and close the survey with a brief notice of the history of privilege. 732. The determination of the time at which the parliament Choice of the , day for the was to be held rested primarily with the kino^ ; but the choice of meetine;of . , , , ,1 1 P parhament. the particular day or season of the year, as well as the frequency or infrequency of sessions, and the use of adjournment or pro- rogation, was variously decided according to the character which the assembly possessed at the several stages of its growth. The witenagemotes of the Anglo-Saxon kings, if we may draw a general conclusion from the scanty indications of particular charters, were mostly held on the great festivals of the church or at the end of harvest ^ ; the great councils of the Norman kings generally, although not invariably, coincided with the ^ Vol. i. pp. 123, 124; notes i, 2, 3. 378 Constitutional History. Coinciden^ crown-wearing days at Christmas, Easter, and Whitsuntide ^ ; parimnen? and, as long as the national council retained as its most pro- tftry terms minent feature the character of a court of justice, so long it must have been almost necessary that it should meet on fixed days of the year. That character it retained until the repre- sentation of the commons came to be recognised as an indis- pensable requisite for a legal parliament, and the name of parliament came to be finally restricted to the assembly of the three estates. This date can scarcely be placed earlier than the beginning of the reign of Edward III, when the distinction was completely drawn between a Great Council, however summoned and however constituted, and the regular parliament. But even after this date, although the administration of justice had ceased to form the most important part of the public business, and the granting of supplies, presentation of petitions, and discussions of national policy, were matters which required punctuality and certainty much less than the administration of justice, the influence of custom, and the same reasons of convenience which had originally assigned days and seasons for legal proceedings, continued to affect the choice of a day for parliament. Under Henry II and his successors down to Henry III, the national councils met as well on the great festivals as on the terminal days of the law courts ; but irregularly and not exclusively on those days. The pro visionary government of 1258 fixed three days in the year, which have a less distinct reference to these points of time, the octave of Michaelmas, October 6, the morrow of Candlemas, February 3, and the ist of June, three weeks be- fore the feast of S. John the Baptist at Midsummer ^ : by this expedient the awkwardness of depending on the moveable feasts was avoided. That arrangement however was short-lived. Edward I, during the early part of his reign, seems to have followed the terminal days of the courts of law. Legal tenns. These terminal days had their historical origin in the distinction made by the Homan lawyers between dies fasti and dies nefasti, the former being the days on which the courts and comitia might ; 1 Vol. i. pp. 369, 370. ^-.-^ ' See above, vol. ii. p. 76. XX.] Origin of Terms. 379 be held, the dies nefasti those on which they were forbidden. The law • • • 1 1 -terms and After the adoption of Christianity the more solemn seasons oi vacations, the church took the place of the old dies nefasti, and were set apart from legal work by the civil and canon law \ The dis- tinction is noted in the compilation called the laws of Edward the Confessor, which describes the custom of England as it existed under the justiciar Glanvill ; according to this rule the peace of Grod and the church was to be observed from the beginning of Advent to the octave of the Epiphany, from Septuagesima to the octave of Easter, and from the Ascension to the octave of Pentecost, besides Sundays and holy days ^. Under these desig- nations the later term days are denoted ; the octave of Epiphany is the feast of S. Hilary, from which the Hilary or Lent term begins ; and the octaves of Easter and Whitsuntide have the same relation to the Easter and Trinity terms. The ending of the third and the beginning of the fourth term depended on the harvest ; an operation so important that not only the schools and the law courts were closed during its continuance, but even civil war was suspended by common consent of the parties, and the parliament itself was prorogued or adjourned during the vacation. The exact days for beginning and ending business varied in the courts and universities, and were from time to time altered by legislation. For parliamentary business the fourth or Michaelmas term may be considered to have begun on the quindene of S. Michael, October 1 3th, the feast of the trans- lation of S. Edward the Confessor, a memorable and critical day on more than one occasion of English history. Custom or convenience seems in quiet times to have pre- Convenience scribed these days as fitting days for parliaments ; and no doubt the term the lawyers, who formed an important element in the house of commons, found the coincidence of the parliamentary and legal days of business very opportune for their own interests; the barons and bishops who had attended the court on the great fes- tivals may also have found it convenient to remain in town after ^ See Reliquiae Spelmannianae, pp. 69 sq ; Nicolas, Chronology of History, P- 383- 2 LI. Edw. Conf. § 2 ; cf. Canute, Eccl. § 17 ; Ethelred, v. § 19, vi. § 25. 38o Constituti07ial History, [chap. Coincidence the conclusion of the festivities, instead of making an additional of the par- . a i • i • • liamentary journey. Anyhow, m the great majority of cases throughout terms. the middle ages, the day of parliamentary summons is fixed with reference to the beginning of the Law Terms. In less quiet times it was impossible to observe such a rule ; and, after long prorogations and less frequent elections had become usual, the old days were less regarded. But the importance of the autumnal vacation always made itself felt; Edward III in 1352 summoned only half the house of commons, that harvest might not be neglected ^ j and the same cause, which in 1 2 1 5 stayed the outbreak of war until the harvest was housed, led to the prorogation of parliaments under Henry YI and Edward IV from July to November, the harvest apparently falling later in the Annual par- year as time went on and tillage increased. 733. As the political functions of the national parliament became more prominently important than the judicial work of the king in his full council, it became a point of public security that regular and fairly frequent parliaments should be held; and the demand for annual parliaments accordingly emerges very soon after the final admission of representatives of the Ordered by commons. We have in a former chapter noted the political bearing and history of this demand^. The ordinances of 131 1 and acts of parliament in 1330 and 1362 established the rule that parliaments should be held annually and oftener if it were found necessaiy. The greatest number of sessions held in one year was four, in the year 1328^. As each session involved a fresh election, and as the wages of the members formed a heavy item in local taxation, it is no wonder that, except in times of Neglect of political excitement, even the annual parliaments became some- what burdensome. Before the close of the fourteenth century the law was frequently transgressed, and two or three years passed without a session. There was no parliament held in 1364, 1367, 1370, or between 1373 and 1376 : under Kichard II, the years 1387, 1389, 1392 and 1396, are marked by a suspen- sion of the national action ; under Henry IV there was no * See above, vol. ii. p, 408 ; Lords' Report, iv. 593. 2 See above, vol. ii. p. 612. ^ Vol. ii. p. 371. XX.] Notice of Parliament. 381 parliament between 1407 and 1410 ; under Hemy V there was Long ses- at least one session each year. Under the Lancastrian kings the proroga- . . tions. sessions had become so much longer than in earlier times that an intermission of a year was often more or less welcome ; but the longer intervals begin contemporaneously with the family troubles; no parliament was held in 1440 or 1441, in 1443 ^r 1444 ; the parliament called in February 1445 sat by adjourn- ment until April 1446 ; there was no session in 1448, 1452, 1457 or 1458. Edward IV held only six parliaments, or appealed to the country only six times during a reign of two and twenty years. 734. The great charter had prescribed for the holding of the Forty days' commune consilium a summons, to be issued at least forty days meeting of before the day of meeting. This rule was regarded as binding p^^^^'^*' in the reign of Elizabeth \ and was observed until the union with Scotland; but not without occasional exceptions. The famous parliament of Simon de Montfort was called at twenty- seven days' notice ^ ; the almost equally famous parliament of 1294 at thh-ty-five^ which is the modern rule; in most other cases under Edward I and Edward 11 the notices are much longer. The summons for the parliament of 1327, in which Edward II was deposed, was issued thirty-five days before the meeting*; in 1330 Edward III apologised for abridging theFewexcep- notice to thirty-one days; business was pressing and he had rule, taken the advice of the lords ^; in 1352 the council, to which only one knight of each shire was summoned, was called only twenty-eight days beforehand ^. Richard II invariably gave long notices ; the parliament in which he was deposed was sum- moned exactly forty days before his resignation, and the first parliament of his successor, for which only seven days' warning was given, consisted of the same members that were summoned for the week before. These seem to be the only important ^ Sir T. Smith, Commonwealth ; see below, p. 468. ' Dec. 24 for Jan. 20 ; Select Charters, p. 406 ; Lords' Eeport, iv. 34. ^ Oct. 8 for Nov. 1 2 ; ibid. p. 60. * Above, vol. ii. p. 360. ^ Lords' Report, i. 492 ; the king apologised for the short notice in the writ, stating that he acted with the assent of the prelates and magnates, and that the act should not be a precedent to the damage of any. * Lords' Report, iv. 593, ^Sq, Constitutional History. [chap. variations from the rule of Magna Carta ; the notices vary generally rather in excess than defect, but in many cases it is exactly observed \ hamenfs^^' more ancient and uniform prescription than that which affected the time for holding parliament regulated the choice of the place of session. Westminster was from the days of Edward the Confessor the recognised home of the great council of the nation as well as of the king. How this came about, history does not record; it is possible that the mere accident of the existence of the royal palace on the bank of the Thames led to the foundation of the abbey, or that the pro- pinquity of the abbey led to the choice of the place for a palace ; ofWest^ equal obscurity covers the origin of both. It is possible that minster. under the new name of "Westminster were hidden some of the traditions of the old English places of councils, of Chelsea or even of the lost Clovesho. But when the palace and the abbey had grown up together, when Canute had lived in the palace and Hardicanute had been buried in the abbey, and when the life and death- of the Confessor had invested the two with almost equal sanctity, the abbey church became the scene of the royal coronation, and the palace the centre of Memories of all the work of government. The crown, the o^rave, the palace, Edward the , ^ . , j o ' i ' Confessor, the festival, the laws of king Edward, all illustrate the perpe- tuity of a national sentiment typifying the continuity of the national life. There the conqueror kept his summer courts, and William Rufus contemplated the building of a house of which the great hall which now survives should be only one of the Under the bed-chambers 2. At Westminster Henry I held his councils ^ >iorman _ . kings. and Stephen is said to have founded the chapel of his patron saint * within the palace. Although the courts continued to attend on the king, they like him rested, when they did rest, at Westminster ; there was the certain place where, according to the great charter, the common pleas were to be held when they ^ After the union with Scotland the notice was given fifty days before- hand; by the 15 Vict. c. 23, this period has been reduced to thirty-five days after the proclamation, appointing a time for the first meeting of parliament ; May, Treatise on the Law, Proceedings and Usage of Parliament, p. 44. ^ Stow's London, ed. Strype, bk. vi. p. 47. 3 Flor. Wig. A.D. 1102. * Mon. Angl, vi. 1348. XX.] The Palace of Westminster. 383 ceased to follow the kin^ 1 ; there the annual audits of the "Westmin- . ster becomes exchequer were already settled. Although Henry II held his the usual 1 -1 • XII J 1 XI place for more solemn councils m a more central place, and where there parliaments, was more room for the camps of the barons to be collected round him, he frequently met both clergy and baronage there ; the clergy in the abbey, the barons in the hall, found their proper council chamber. From the beginning of the reign of Henry III the custom seems to have acquired the sanctity of law ; he rebuilt the abbey and added largely to the palace, and by his devotion to the memory of the Confessor professed him- self, if he did not prove himself, the heir of the national tradition. So well established was the rule, that in the troubled times which followed the legislation of Oxford, the king avoided Westminster, thinking himself safer at S. Paul's or in the Tower, and the barons refused to attend the king at the Tower according to his summons, insisting that they should meet at the customary place at Westminster and not elsewhere ^. The next reign saw the Westm in- whole of the administrative machinery of the government per- of govern- manently settled in and around the palace ; and thus from the very first introduction of representative members the national council had its regular home at Westminster. There, with a few casual exceptions, to be noticed hereafter, all the properly con- stituted parliaments of England have been held. 736. The ancient palace of Westminster, of which the most Interest of important parts, having survived until the fire of 1834 and theliament construction of the New Houses of Parliament, were destroyed in 1852, must have presented a very apt illustration of the history of the Constitution which had grown up from its early simplicity to its full strength within those venerable walls ^. It was a curious congeries of towers, halls, churches, and chambers. As the administrative system of the country had been developed ^ largely from the household economy of the king, the national palace had for its kernel the king's court, hall, chapel, and chamber. It had gathered in and incorporated other buildings ^ Art. 17. 2 ^nn. Dunst. p. 217. ^ See Brayley and Britten, History of the Ancient Palace of West- minster, and Smith's Antiquities of Westminster. 384 Constittitional llidory. [chap. Historical that stood around it: successive venerations had added new interest of . _ ' ° We^stmin- wings, built towers, and dug storehouses. As time went on, every apartment changed its destination : the chamber became a council room, the banquet hall a court of justice, the chapel a hall of deliberation ; but the continuity of the historical building was complete, the changes were but signs of growth and of the strength that could outlive change. Almost every part of the palace had its historical hold on the great kings of the past. In the Painted Chamber Edward the Confessor had died ; the little hall or White Hall was believed to be the newly fashioned hall of his palace ; the Great Hall, the grandest work of sove- reign power, was begun by William Kufus and completed by Eichard II. The chapel of S. Stephen was begun by Stephen, rebuilt by Edward I, and made by Edward III the most perfect Plan of the example of the architecture of his time. The ancient Exchequer buildings stood east and west of the entrance of the Great Hall ; the Star Chamber in the south-eastern corner of the court that extended in front of the Hall. The King's Bench was held at the south end of the Hall itself. The more important of the parlia- mentary buildings lay south and east of the Hall. To the south- east, and at right angles with the Hall, the church of S. Stephen ran down to the river : at right angles to the church, separated from the Great Hall by a vestibule, was the lesser or White Hall ; south and east of the White Hall and parallel with S. Stephen's chapel, was the Painted Chamber, or Chamber of S. Edward; and at right angles to it again was the king's Great Chamber, the White Chamber, or Chamber of the Parliament. Beyond this was the Prince's Chamber ^, which reached to the limit of the palace buildings southwards, and looked on the river. Of these buildings the King's Chamber, or Parliament Chamber ^, was the House of Lords from very early times until ^ Probably the small chamber south of the White Chamber (Foedera, ii. 1122), where Stratford in 1340 received the Great Seal. The 'Prince' must have been Edward the Black Prince, who after the parliament of 1371 called the burghers into his own chamber, and obtained a grant of tunnage and poundage from them. It was afterwards the ' Robing Room.' ^ Brayley and Britton, p. 401 ; the old house of lords or chamber of parliament, and the prince's chamber, were pulled down in 1823; ibid, p. 421. XX.] The Palace of Westminster. 385 the union with Ireland, when the peers removed into the lesser The old • ^ ^ houses of or "White Hall, where they continued until the fire. The parliament, house of commons met occasionally in the Painted Chamber, but generally sat in the Chapter House or in the Refectory of the abbey, until the reign of Edward YI, when it was fixed in S. Stephen's chapel \ The Painted Chamber, until the accession of Henry VII, was used for the meeting of full parliament, and for the opening speech of the Chancellor ; it was also the place of conference between the two houses. After the fire of 1834, during the building of the new houses, the house of lords sat in the Painted Chamber, and the house of commons in the White Hall or Court of Requests. It was a curious coincidence certainly that the destruction of the ancient fabric should follow so immediately upon the great constitutional change wrought by the reform act, and scarcely less curious that the fire should have originated in the burning of the ancient Exchequer tallies, one of the most permanent relics of the primitive simplicity of administration The work of parliament was not always carried on within The abliey the walls of the palace. The neighbouring abbey furnished oc-time of casionally both lodging and meeting rooms for the estates. QfP^rii^^^^^- the monastic buildings the refectory, the infirmary, and the chapter house, were, after the church itself, most signally marked by historical usage. The refectory was a frequent place of meeting for the barons under Hem-y III ; there in 1244 they bearded the king and the pope^; and at a later period the commons frequently sat there. The infirmary or chapel of S. Katharine, was at one time the regular place of session for the bishops*. In the chapter house, in 1257, Henry III confessed his debt to the pope ^ ; the parliament of Simon de Montfort •assembled there ^, and it afterwards came to be regarded as the ^ In 1548 ; Brayley and Britten, p. 361. * The tallies had been in use until 1826 ; Brayley, &c. p. 425. ' M. Paris, p. 639. * M. Paris, p. 640. They met in the chapel of S. John the Evangelist ; but the chapel of S. Katharine was the place were consecrations were most frequently performed. ' See above, vol. ii. p. 70. Liber de Antiquis Legibus, p. 71. VOL. III. C C 386 Constitutional History. [chap. Occasional ' ancient and accustomed house' of the commons. The proper Blackfriars. home of convocation was in the lady chapel of S. Paul's. On one or two occasions, when the condition of the palace or other reasons compelled it, the parliament was held at Blackfriars. This was the case in 131 when the Ordinances were pub- lished, and likewise for a few days in 1449 ^. Richard II held his revolutionary parliament of 1397 in a great wooden building- erected in the court before Westminster Hall Almost every exception to the rule has some historical significance. Occasions 737. Most of these exceptions were owinff to circum- on which . t • i i • i , • parliaments stances, sanitary or political, which made it necessary or ad- were held at . ^ t r n a distance visable to summon the estates to some place distant from don. London. Not to multiply instances, it may suffice to mention the cases, occurring after the incorporation of the commons, in which the parliaments met away from Westminster, and sucli only as concern true and full parliaments from 1295 onwards. Far the largest number of these exceptional sessions were held at York during the long struggle with the Scots, when the presence of the king and barons was imperatively required in At York, the north. Edward I in 1298; Edward II in 13 14, 13 18, 13 19, and 1322; Edward III twice in 1328, in 1332, 1333, 1334 and 1335, held sessions at York*. In 1464 Edward IV summoned the estates to the same place : the great hall of the arch- North- bishop's palace was the scene of the short session^. Next in ampton, and point of distinction to York come Northampton and Lincoln, at each of which four parliaments have sat. The central position of Northampton had made it a favourite council ground with Henry II ; Edward II held his first parliament there in 1307 ; Edward III followed the example in 1328 and 1338 ; and in 1380 the parliament which voted the famous poll tax met at the same place ^; the lords sat in a great chamber, the commons Lincoln. in the new dormitory of the priory of S. Andrew The four parliaments of Lincoln belong to the years 1301, 13 16, and * See vol. ii. p. 328. 2 j^q^.^ V&vl. v. 171. 2 Annales Ricardi, p. 209 ; Brayley, p, 283. * Vol. ii. pp. 148, 338, 343, 344, 351. = Rot, Pari. V. 499. ^ See above, vol. ii. pp. 315, 371, 378, 448. ' Rot. Pari. iii. 88. XX.] Tarliaments out of London. 387 1327^; the first session of 1 3 1 6 was opened in tlie hall of the deanery, and the lords sat in the chapter house of the cathedral and at the convent of the Carmelites -. Three parliaments were ParUameuts held at Winchester, one in 1330, when Edmund of Woodstock ter, was beheaded, one in 1393, and a third in 1449 when the plague was at Westminster. Besides these a supplementary great council was held at Winchester in 1371^ Bury S. Edmund's St. Ed- witnessed two famous sessions, one in 1296, when archbishop Winchelsey produced the bull clericis laicos ; the other in 1447 marked by the death of duke Humfrey ; the parliament was opened in the refectory of the abbey ^. Leicester saw three par- Leicester, liaments, one under Henry Y in 141 4, when the lords sat in the great hall of the Grey Friars, and the commons in the in- firmary of the same convent : another session was held there in 1426, 'the parliament of bats/ when the lords sat in the great hall of the castle, and the commons in a lower chamber ; a third session was held by prorogation in 1450^. At Coventry in 1404 Coventry, the unlearned parliament sat in the great chamber of the prior's house ; and in 1459, chapter house, the Lancastrian party attainted the duke of York ^, Reading had two sessions, one in Reading, 1453, when Henry YI was insane, the other in 1467, when the plague was raging : on the first occasion the refectory was used, on the second a great chamber in the abbey There were two Salisbury, parliaments at Salisbury, one in 1328 and one in 1384; the latter in the great hall of the bishop's palace ^. Gloucester also Gloucester was the seat of parliament in 1378, when John of Gaunt feared where, to meet the Londoners, and in 1407 ; in 1378 the lords sat in the great hall of the abbey, the commons in the chapter house ; in 1407 the commons occupied the refectory^. Carlisle, Notting- ham, Cambridge, and Shrewsbury, each saw one session; Carlisle witnessed the famous parliament of 1307 ; at Nottingham in ^ See above, vol. ii. pp. 150, 339, 340, 370. - Rot. Pari. i. 350. 3 See above, vol. ii. pp. 372, 422, 484. * See above, vol. ii. p. 130 ; iii. p. 135 ; Eot. Pari. v. 128. 5 See above, pp. 81, 103, 150 ; Rot. Pari. iv. 15, 16, 295 ; v. 192. * See above, pp. 46, 180 ; Rot. Pari. iii. 545 ; v. 345. ' See above, p. 163, Rot. Pari. v. 227, 619. * See above, vol. ii. pp. 371, 467 ; Rot. Porl. iii. 166. ^ See above, vol. ii. p. 446 ; iii. 60 ; Rot. Pai"l. iii. 32, 608. C C 2 388 Constitutional History. [chap. not attest ^^^^ Edward III obtained supplies for beginning the French minster. war; the commission of government in 1388 held a legislative session at Cambridge \ and at Shrewsbury in 1398 Richard II carried into execution his scheme of absolute government. The inference from this long list is that the liberties of England were safest at "Westminster. onh?day^of Within the prescriptive or customary limits the deter- meeting mination of the time and place for holding parliaments was left determined , . ^ ^ ^ by the king to the king himself : the constitutional law being amply satisfied m council. ^ . o r j by an annual session. As the greater development of the executive functions of the royal council agrees in point of time with the recognised development of the representative system, the choice of time and place as well as the preparation of financial and legal agenda was almost from the first a part of the business of the council. The order for the afiixinof of the great seal was given by sign manual or writ of privy seal to the clerk of the crown in chancery who issued the writs. The advice of the council is specified in the writ of summons from the forty-sixth year of Edward III ^. Until the presence of the commons had come to be recognised as an integral part of parliament, the baronial council was often summoned alone, and when the demand for money arose, the commons were called in and a parliament summoned by the regular writs. Accordingly, during the reign of Edward II, we may, in many cases, by comparing the date of the baronial summons to council with the date of ^ The Cambridge parliament is said to have been held at Barnwell, where the king lodged ; Cooper, Annals of Cambridge, i. 135. The parliament of 1447 which met at S. Edmund's was in the first instance summoned to Cambridge. ^ 'Quia de avisamento consilii nostri, &c.'; Coke, 4 Inst. p. 4; Lords* Report, iv. 653. The earlier writs begin generally ' Quia super diversis et arduis negotiis, &c.' ; ib. p. 318, &c. The notes 'per breve de private sigillo'; ib. pp. 64, 205, &c. ; or 'per ipsum regem et consihum,' pp. 397, 416, &c., often appear in the margin of the writ. ' Per ipsum regem ' means that the writ is sealed by the king's sign manual or order under the privy signet; 'Per breve de privato sigillo,' that the sign manual was warrant to the privy seal under which the order was given for affixing the great seal ; ' Per ipsum regem et consilium,' that the writ had been issued imder the joint supervision of king and council. See on the whole history of the seals, Sir H. Nicolas, Ordinances, &c. vi. pp. cxl. sq. clxxxiv. &c. ; Elsynge, Ancient Method of holding Parliaments, pp. 27, 29. XX.] Choice of the day of Session. 389 the subsequent summons to parliament, infer that the day of Preliminary parliament was fixed in the meeting of the barons ^. And this cils. practice no doubt prevailed down to the days of the Lancas- trian kings ; for the French war of Henry V was considered in a great council of notables, lords and others, before it was dis- cussed in parliament^. In 1386 a great council of 'seigneurs et autres sages ' held at Oxford deliberated on the expediency of the king going to war, and by advice of that council Richard summoned the parliament'. As a rule however this duty be- longed to the privy co^mcil or continual ordinary council of ministers. It was no doubt a matter of some delicacy, in Preliminary troubled times, to arrange the course of business so as to avoid S"^ bringing the personal disputes of the great lords before the assembled commons : a good example of this will be found in the case of the council held at Northampton in which the business was prepared for the parliament of 1426, when Grloucester had refused to meet Beaufort as chancellor *. The most important exception to this rule is the very rare case in which the parliament itself attempted to fix the day for the next session. The most important recorded instance of such an The day event belongs to the merciless parliament of 1388, when the preceding king was in the hands of the appellant lords and the house Qf P^^^^^™®"*- commons was entirely at their beck. Although the proposal was couched in the form of a petition, it was rejected by the king, and the next session was held a full month before the day proposed ^ In 1328 and 1339, however, the day for the next session was fixed before the dissolution of the parliament ^. 739. As soon as the day and place of session were fixed, the issue of writs of summons were prepared in the royal chancery and ^ This is sometimes stated in the writ itself circumstantially ; as in 1330, Lords' Report, iv. 397 ; and 1331, ib. p. 403 : ' de consilio praelatorum et magnatum nobis assistentium.' 2 See above, p. 84. 3 i>ot. Pari. iii. 215. * See above, p. 103. s Rot. Pari. iii. 246. ^ In 1328 the day for the parliament to be held at York on July 31 was fixed by the king with assent of the lords, at the previous parliament of Northampton; Lords' Report, iv. 381. In 1339, 'Item fait a remembrer de somoundre le parlement as oytaveg de Seint Hiller susdit ' ; Rot. Pari, ii. 106 ; cf, p. 105 : see also in connexion with this parliament, vol. ii. p. 381, and below, p, 398. Constitutional History. [chap. Writs altered hy act of parliament. Interest issued Under the great seal. As these writs were returned to the th?wrSs.*° parliament itself, or later into chancery, and as copies of them were enrolled on the close rolls at the time of issue, the great numbers of extant copies form an important branch of the national treasure of record. The ingenuity of legal antiquaries has found in them much material for interesting discussion^, which cannot be here reproduced. The essential portion of the writs has continued to be the same throughout the existence of parliamentary institutions, but the forms have undergone great variation at different times, and quite as much historical interest belongs to the variations as to the permanent identity of the essential parts. These variations were unquestionably the work of the king and council ^, the form of writ having been originally settled by no constitutional act except in the very general terms of the great charter ^ ; but certain additions Avere made by acts of parliament, the omission of which would have the effect of invalidating the summons ; such in particular were the clauses inserted in consequence of the amendments of election law under Henry IV, Henry V, and Henry VI. Yet, like the times and places of session, the form of writ had in the fourteenth cen- tury attained a sort of sanctity which it was exceedingly dan- gerous to violate ; Richard II was compelled to withdraw the clause by which he ordered the sheriffs to return impartial persons ; and the order, given in 1404, that lawyers should not be ^ ' Manifold rare, delightful varieties, forms, diversities, and distinct kinds of writs of summons Prynne, Register, i. p. 395. ^ Prynne argues against Coke's statement that the form of writ could not be altered but by act of parliament; Register, i. 396; ii. 161 ; and has also some important remarks on the right to demand a writ ; Coke argues that the writ is issued ' ex debito justitiae,' Prynne that it is altogether in the royal power, and of the class of ' magistralia,' not 'brevia formata sub suis casibus.' But the question is one of a very technical character, although it has a bearing on rights of peerage. Bracton, lib. 5. f. 413, divides 'Brevia originalia' into several classes ; first, ' quaedam sunt formata sub suis casibus et de cursu et de communi concilio totius regni concessa et approbata, quae quidem nullatenus mutari poterint absque consensu et voluntate eorum ' ; others are ' judiciaKa,' which vary according to the suits in which they are used ; a third class, ' magistralia,' which often vary ' secundum varietatem casuum et querelarum ' ; a fourth are ' personalia,' and a fifth ' mixta,' ^ ' Ad certum diem scilicet ad terminum quadraginta dierum ad minus, et ad certum locum; et in omnibus litteris illius summonitionis causara summonitionis expiimemus ' ; Mag. Cai t. Art. 14. XX.] Writs of Summons, elected, was made the ground of a charge of unconstitutional conduct brought against Henry IV. 740. Special writs of summons were addressed to the lords, Special writs spiritual and temporal, and to the judges or occasional coun- and judges, sellors who were called to advise the king in the upper house of parliament. The summons of the parliamentary assembly of the clergy was inserted in the writs to the archbishops and bishops, and all the summonses of representatives of the com- mons were addressed to the sheriffs of the counties. The Variations p . in the forms, variations m the writs addressed to the lords are 01 minor importance, as they are chiefly found in the clauses in which the king gives an account of the cause which has moved him to call the parliament ; but some peculiarities marking the various writs of the barons, bishops, abbots, and judges, deserve special notice^. On the other hand the changes which were from time to time introduced or attempted in the writs for the elections to the house of commons, point in some cases to important, in some to very obscure causes in contemporary history. The writs enrolled and issued first were those addressed to the lords spiritual ; the archbishop of Canterbury being by his ^ These points will be seen best by giving a specimen of the writs : ' Rex venerabili in Christo patri H. eadem gratia archiepiscopo Cantuariensi, totius Angliae primati, salutem. (i) Quia de avisamento consilii nostri pro quibusdam arduis et urgentibus negotiis, nos statum et defensionem regni nostri Angliae ac ecclesiae Anglicanae contingentibus, quoddam parlia- mentum nostrum apnd Westmonasterium die lunae proxime post festum Sancti Lucae Evangelistae proxime futurum teneri ordinavimus, et ibidem (ii) vobiscum ac cum ceteris praelatis, magnatibus et proceribus dicti regni nostri colloquium habere et tractatum ; vobis (iii) in fide et dilectione (to the lords temporal 'in fide et ligeancia') quibus nobis tenemini firmiter injungendo mandamus quod, consideratis dictorum negotiorum arduitate et periculis imminentibus, cessante quacunque excusatione, dictis die et loco personaliter intersitis nobiscum ac cum praelatis magnatibus et proceribus praedictis super praedictis negotiis (iv) tractaturi vestrumque consilium impensuri. Et hoc, sicut nos et honorem nostrum ac salvationem et de- fensionem regni et ecclesiae praedictorum expeditionemque dictorum nego- tiorum diligitis, nullatenus omittatis. (v) Praemunientes priorem et capitulum ecclesiae vestrae Cantuariensis ac archidiaconos totumque clerum vestrae diocesis quod iidem prior et archidiaconi in propriis personis suis, ac dictum capitulum per unum, idemque clerus per duos procuratores idoneos plenam et sufficientem potestatem ab ipsis capitulo et clero divisim habentes, dictis die et loco personaliter intersint ad consentiendum hiis quae tunc ibidem de communi consilio dicti regni nostri divina favente dementia contigerit ordinari. Teste &c. ;' Lords' Reports, iv. 827. Constitutional Historp [chap. Writs to the ancient privilege entitled to the first summons ; then followed bishops. ^j^^ ^j^^ archbishop of York and the suffragan bishops. The normal form of the writ contained, first, a clause declaring the cause on account of which the king has ordered the parlia- ment to be summoned, with the time and place of meeting ; a description of the body whose deliberations the recipient is to share, ' cum ceteris praelatis magnatibus et proceribus regni nostri'; this is followed by an injunction on the recipient to attend, 'vobis mandamus in fide et dilectione quibus nobis tene- mini,' and a description of the function which he is to discharge 'tractaturi vestrumque consilium impensuri.' Finally the prae- Inunientes clause directs the bishop to warn the clergy of his diocese to appear, the deans and archdeacons in person and the minor clergy by their proctors, on the same occasion, to do or con- sent to the things which may then and there be determined. The cause It is on the varying of these few expressions that all the dis- of summons ... . stated in tinctive interest of the writs of the prelates depends. The first the writ. n • n • ■, -i • • clause admits of infinite but non-essential variation ; and is con- tinually changed. The highest note is struck when Edward I reminds the bishops that what touches all should be approved by all ^ ; or when that great king and his successors from time to time explain that the enemy is bent on destroying the English tongue from off the face of the earth ^. The barest matter of fact is touched when the form becomes * quia de advisamento consilii nostri pro quibusdam arduis et urgentibus negotiis, nos statum et defensionem regni nostri Angliae et ecclesiae Anglicanae contingentibus, quoddam parliamentum nostrum tenere ordina- vimus.' The changes however are not essential and touch no constitutional point. The position The second point is important ; the king's intention is to ceteris. deliberate with the other prelates and magnates of the king- dom, 'cum caeteris praelatis, magnatibus et proceribus'; the writ of the temporal lords runs * cum praelatis, et ceteris mag- natibus et proceribus,' and that of the judges or additional ^ See vol. ii. p. 128 ; Select Charters, p. 474. 2 See the writs of 23 Edw. I, 7 Rich. II; Lords* Report, iv. 67, 706; cf. Rot. Pari. ii. 150. XX.] Writs of ihe Lords. 393 counsellors omits the word ' ceteris ' and frequently inserts Judges not the clause ' cum ceteris de consilio nostro.' The omission of the parliament, word ' ceteris ' has the great legal force of excluding the judges from claiming the position of peers of parliament. The difference of its position in the writs of the lords spiritual may be construed as placing their right as members of the lords' house upon a different footing from that of the temporal lords, but this is not a necessary or probable inference. The third point of importance is the regular use of the words The words * fide et dilectione ' in the writs of the prelates ^; the correspond- diiectione' ing form in the writ of the lords temporal is * fide et homagio/ of the writs or * homagio et ligeantia.' The former expression is sometimes prelates, used in the lay writs, but the latter is never used to ecclesi- astics : the force of the distinction lying in the fact that the bishops as bishops did not do homage, and the abbots shared the benefit of the immunity^. This point has some further importance in relation to the writs of the lords temporal. The fourth point, the use of the words 'tractaturi et con- The function silium vestrum impensuri ' marks the theoretical position of the tractaturi, upper house and its attendant judges : they are counsellors'^^' preeminently ; no such words occur in the writs under which the representative members are elected. Lastly the praemunientes clause, which of course occurs only * On the importance of the expression ' fide et dilectione ' see Prynne, Reg. i. 194, 195, 206-208. It is difficult to draw any distinct inference from the use of the words ' dilectione' and 'homagio ' under Edward I; for occasionally both terms are used in writs of the same character ; it seems, however, clear that after the great quarrel with the earls in 1^97 the king never summoned the temporal lords to parliament 'in fide et dilectione,' but always ' in fide et homagio ' : in 1 295, 1 296, and 1 297, he uses the former expression ; in 1 298 he omits the adjuration altogether, and in 1 299 and onwards uses the sterner form. See the writs of those years in the Lords' Report and the Parliamentary Writs. ' Fide et homagio,' thus became the regular form ; and in 1317 the difference is specially noted in the Close Rolls, where the two sets of writs are described as identical so far ; ' ex- cepto hoc quod ubi dicitur in fide et dilectione, ibi dicetur in fide et homagio'; Pari. Writs, II. i. 171. It is just possible to draw from the military writs a further inference; in 1294 John Balliol is cited 'in fide et homagio,' to send his service of armed men to Portsmouth, June 25 ; on June 29 he is desired 'in fide et dilectione' to send some of them with the king to France ; here the former expression may imply the feudal duty, and the latter the general bond of fealty : but this will not apply in all cases; Pari. Writs, i. 261. ^ See above, vol. i. p. 387 ; and iii. p. 296. 394 Constitutional History. [chap. The prae. tnuiiientes clause. Writs to the guardians of spu-ituals, Mud bishops elect. Writs of the lords temporal. The form fide et homagio. m the writs of the bishops, directs the attendance of the bene- ficed clergy, and defines their function : from the twenty-eighth year of Edward I to the year 1340, they are generally, but not invariably, summoned like the commons ' ad faciendum et con- sentiendum'; from 1340 generally, and from the first year of Richard II invariably, 'ad consentiendum' ouly^; the meaning of the word 'faciendum' here must be ruled by its interpre- tation in the writs to the sheriffs for the election of knights of the shire. It would seem that the summons ' ad faciendum ' was withdrawn from the moment that the king despaired of prevailing on the clergy to vote money in parliament in- stead of convocation. When a bishopric was vacant the writ which would ordinarily be directed to the bishop was frequently addressed to the guardian of the spiritualities of the see, or if a bishop had been elected and not completely invested or conse- crated, to him as bishop elect ; when the bishop was abroad the writ was directed to his vicar-general The writs of the abbots and priors correspond with those of the bishops in all other points, but omit the praemunientes clause. The writs of the lords temporal differ from those of the bishops, in the change of the position of the word 'ceteris,' in the omission of anything corresponding with the praemunientes clause, and in the use of the form 'fide et homagio.' 'fide et ligeantia,' or 'homagio et ligeantia.' The difference between these expressions has been understood to indicate some difference between the barony by tenure, of which the homage would be a more distinct feature, and the barony by writ, where the oath of allegiance would take the place of the form of homage. But the words are used with so little discrimination that no such conclusion can be with any probability drawn from them; and the * In 1 371 they are summoned ' ad consulendum et consentiendum' ; Lords' Reports, iv. 647. It is certainly a significant coincidence that the word 'faciendum' should be withdrawn just when the king ceased to send his second letter to the archbishops ordering the enforcement of the summons. See above, p. 320, ^ Specimens of the writ to the guardians of the spiritualities may be seen in Pari. Writs, I. 25, 47, 137 ; II. i. 155 ; Prynne, Register, i. 152, 153 ; and to bishops elect, Pari. Writs, I, 26, 47 ; to the vicars general, Lords' Reports, iv. 500, 501. XX.] Writs of the Judges. 395 words homage and allegiance are in this collocation synonymous or redundant^ 741. The writs of the judges and counsellors'^ correspond so Summons very closely with those of the barons that it would seem almost judges. an afterthought to exclude them from equality in debate. The variations already noticed, the omission of the word 'ceteris/ the introduction of 'ceterisque de consilio nostro,' and the absence of the injunction ' fide et homagio ' are interpreted as having that effect. All these writs are tested by the king himself, and issued Attestation mi 1 1 • • Ml J • of the writs, under the great seal. The note ' per breve de privato sigillo is frequently attached to the copy on the close roll, signifying that the great seal had been attached in compliance with a writ of privy seal ordering it to be done. The form ' per ipsum regem ' denotes that the warrant has been issued under the sign manual and the royal signet. The later note ' per ipsum regem et con- silium,' which appears occasionally in the writs of Edward II and very frequently after the accession of Edward III, has the ^ See Prynne, Reg. i. p. 206 ; Coke, 4th Inst. p. 5. An examination of the writs shows that Edward I occasionally used the form *en la foi et en la ligeaunce,' Pari. Writs, I. 317 ; but that Edward III introduced it into common use in writs of summons to both councils and parliatuents : some- times he uses both words, ' fide, homagio et ligeantia ' ; Lords' Report, pp. 594, 599 : but no conclusion can be drawn as to the purpose of the change : from 1354 onwards the two words are used indiscriminately, and from the accession of Richard II ' ligeantia ' is the regular word. ^ See Pari Writs, II. i. 42 ; Prynne, Reg. i. pp. 341 sq., 361 sq., 365. In several cases, if the Close Rolls are to be trusted, the writs to the justices are identical with those to the lords ; but these may be accidental errors. Occasionally, when the counsellor cited is a clergyman, 'in fide et dilec- tione' is used, as in 1 311, to Robert Pickering*; but generally the clause is omitted. A specimen of the form is subjoined ; it is the writ correspond- ing with that to the archbishop, given above, p. 391 : ' Rex dilecto et fideli suo Willelmo Hankeforde capitali justitiario suo salutem. Quia &c. ut supra usque ihi tractatum, et tunc sic : vobis mandamus firmiter injun- gentes quod omnibus aliis praetermissis dictis die et loco personaliter intersitis nobiscum ac cum ceteris de consilio nostro super dictis negotiis tractaturi vestrumque consilium impensuri : et hoc nullatenus omittatis ' ; Lords' Report, iv. 829. Here the omission of the word 'ceteris' is not noted. But the writ to William de ShareshuU in 1357 contains the words 'vobiscum et cum prelatis, magnatibus, et proceribus dicti regni nostri Angliae ac aliis de consilio nostro ib. p. 615. It should be said that the writs to councils vary more than those to parliament; the judges being occasionally summoned 'in fide et ligeantia,' and in other points being placed on a level with the lords. Constitutional History, [chap. same force, denoting that the privy seal writ had issued after deliberation in the privy council ^. This feature belongs to all Writs of the parliamentary writs alike. The writs addressed to the a great prelates, barons, and counsellors ordering them to attend in a council. great council are worded in language very similar to that of the writs of parliament ; but they express the king's intention of holding a council, ' consilium ' or ' tractatum,' not a parliament ; the writs to the bishops omit the praemunientes clause, and there are no writs to the sheriffs. Some doubt may occasionally arise so long as the word ' colloquium * is used for both parlia- ment and council, although that word is properly equivalent to ' parliamentum' : the word ' parliamentum ' is however used most frequently from the latter years of Edward I, and exclusively after the first year of Edward III. Writs ad- 742. The writs to the sheriffs, ordering the election of repre- thrsheriffs. sentatives of the commons, correspond with the writs of the lords only so far as concerns the recital of the cause of summons, and in earlier writs this is frequently abbreviated. After de- j, daring the occasion of meeting and the king's intention of treating with the prelates, magnates, and 'proceres,' no share in the deliberative function being assigned to any other persons, the writ proceeds to order the election of knights, citizens, and burgesses, who are to have full and sufficient power, on Jbehalf of their constituencies, to consent to and to do what by God's favour may be determined by the common counsel of the kingdom, on the matter premised 2. The sheriff is himself to bring up the ^ See above, p. 388, note 2. In the parliament of Coventry held in 1459, a petition was presented on behalf of the sheriffs who had returned mem- bers under privy seal writs ; the king was asked to declare the elections valid, and discharge the sheriffs from blame; and this was done. See Prynne, Reg. ii. 141 ; Rot. Pari. v. 367. The writs are indeed given in the regular form in the Lords' Report, iv. 940, 945 ; but in the act of 1460, which repealed the acts of the parliament of Coventry, it is alleged, as one of the reasons of the invalidity of those acts, that the members were re- turned, some of them without any due or free election, others without any election at all, against the course of the king's laws and the liberties of the commons of this realm, by virtue of the king's letters of privy seal without any due election ; Rot. Pari. v. 374 ; Prynne, Reg. i. 142. ^ ' Ita quod iidem milites plenam et sufficientem potestatem pro se et communitate comitatus praedicti, et dicti cives et burgenses pro se et com- munitatibus civitatum et burgorum praedicfcorum, divisim ab ipsis habeant XX.] Writs of the Knights, 397 names of the persons chosen and the writ, until by the statute How the ^ _ . . return was of Henry lY in 1406 the indenture tacked to the writ is declared to be made, to be the sheriff's return, and is ordered to be sent into chancery. Such is the essential form of the writ \ the many important varia- tions in detail, touching the status of the persons to be chosen and the process of election, are valuable indications of political and social history. They must be taken in chronological order. The •changes in the clauses which describe the character of the persons eligible as knights of the shire begin very ^arly, ^amtions^ The first form, that of 1200, 1204, and 1205^, prescribes the describing , , , » r the persons election to be made ' de discretioribus et ad laborandum poten- to be elected as knights of tioribus'^;' the form is varied in 1302, the words being *de the shire, discretioribus ipsius comitatus^,' and in 1306 the clause direct- ing the election of burgesses runs *et de quolibet burgo duos burgenses vel unum secundum quod burgus fuerit major vel minor Both these variations were temporary ; the older form is resumed and observed down to 1324, when Edward II, ap- parently despairing of getting a parliament together, and having in 1322 been obliged to receive valetti or esquires instead of knights of the shire for several counties, dispensed with the de- mand for discreet and able knights by adding ' seu aliis, de comitatu tuo assensu et arbitrio hominum ejusdem comitatus nominandos^.' As however he omitted the summons for the ad faciendum et consentiendum hiis quae tunc ibidem de communi consilio regni nostri favente Domino ordinari contigerit super negotiis antedictis * ; Lords' Report, iv. 786. ^ Pari. Writs, i. 21, 25, 29, 48, &c. ^ In 1297 the description is ' de probioribus et legalioribus ' ; this meeting however was not, strictly speaking, a parliament, but the council to which the knights were called to receive the copies of the confirmed charters. Pari. Writs, i. 56. ^ Pari. Writs, i. 115 : in 1305, 'de discretioribus et ad laborandum poten- tioribus' ; ib. p. 138. * Pari. Writs, i. 182, 183. 5 In 131 1 the sheriff of Rutland sends two ' homines,' having no knights ; Pari. Writs, ii. i, 51. In 1322 Worcestershire returned a valettus or yeoman, who received only 2s. for his expenses; ib. ii. I, 277 : Devon returned one, Middlesex, Hereford and Leicester two; ib. 278. In 1324 jtll are called milites ; ib. 313. In 1324 the summons to the barons is 'in fide et dilectione,' and 'seu aliis' is in the Sheriffs' Writs, II. i. 317 ; in the returns for Herefordshire it is specified that the persons elected are not knights ; Lincolnshire returns a ' serjaunt ' ; the nimiber of belted knights made out by Prynne belongs to the parliament of 1325; ib. pp. 346, 347 ; when the persona not knighted have only 3s. a day. 398 Constitutional History, [chap. secure^the*° ^^^^^^ borougli members altogether, this writ cannot election of be reo'arded as a writ of parliament. In the next parlia- real knights. ® ^ , ^ ment, that of 1325, only twenty-seven of the knights of the shire were belted knights. The writs for the parliament of Northampton in 1328 forbid the attendance of members with a multitude of armed retainers ^ ; and an additional wit in 1330 enjoined on the sheriff to obtain the election of persons not suspected of legal malpractices: 'deux des plus leaux et plus suffisauns chivalers ou serjauntz de meisme le countee qui sclent mie suspicionous de male coveigne, ne com- munes meintenours des parties This was with a view to the next parliament, in which Mortimer was condemned. Although the result was satisfactory for the moment, and no change in the writ was required for some years, abuses had already begun to creep in, and in 1339 the commons, declaring that they could not assent to the proposed grant without having recourse to their constituencies, asked for a new election in which the sheriff should be told ' que deux de mielx vauez chivalers des contez ^ ' should be chosen, and the sheriffs and other servants of the crown should be excluded. This proposition was accepted ; and in the writs for the next parliament the king, after remarking that the perfunctory transactions of the elections has been a serious hindrance to business, enjoins the election of two knights girt with swords, for the county, and two burgesses for each borough, * de discretioribus et probioribus militibus, civibus et burgensibus comitatus civitatum et burgorum et ad laborandum An order potentioribus The sheriffs are not however yet excluded, kni^hts^to The enforcement of knighthood as a qualification for election be chosen, g^gj^g ^.^ b^ve caused a difficulty ; the words ' gladiis cinctos ^ ' occur in the writs for March 1340, but are omitted after that parliament, although the rest of the formula is retained. In 1342 the qualifications of the candidates are indicated by the words ^de discretioribus et legalioribus in 1343 'probioribus' ^ Lords' Eeport, iv. 383 ; Prynne, Reg. ii. 79, 80. ^ Prynne, Reg. ii. 85, 86; see above, vol. ii. p.619. Rot. Pari. ii. 443. ^ Rot. Pari. ii. 104. * Lords' Report, iv. 509 ; Prynne, Reg. ii. 88, 89. ^ Lords' Report, iv. 517 ; Prynne, Reg. ii. 90. * Lords' Report, iv. 543. XX.] Writs of the KnigJits. 399 recurs ^ In 1347 occurs the curious and important notice that Variations 1 n 1 T .1 . r. . in the writs the king does not call the parliament with the intention of im- of the sheriffs posing aids or tallages, but that justice may be done to the people; a very necessary undertaking at a moment when the king's recent proceedings had shaken public confidence. The assurance does not seem to have been satisfactory^; at all events the parliament which met was not sufficiently pliable ; and the writ for the next year orders the election to be made ' de ap- tioribus discretioribus et magis fide dignis'; the knights are again to be belted knights, ' gladio cinctos et ordinem militarem habentes et non alios' ; and the sheriff is warned that he is so to conduct the election as not to risk being regarded as a hinderer of the king's business^. In 1350 the writ issued for the par- liament of 1 35 1 reveals a new dijfficulty : it was impossible to secure the election of belted knights, but honest and peaceful country gentlemen might be hoped for ; the king accordingly Maintainers directs that such persons shall be chosen as are not pleaders or are^SotTo^ maintainers of quarrels, or men who live by such gains, but men of worth and good faith, and lovers of the public good. This form is observed until the year 1355^. In the meantime two great councils were held, the writs for which are exceptionally worded; in 1352 the sheriff is to return one knight 'de j^rovec- tioribus discretioribus et magis expertis the number being re- duced that the work of harvest may not be impeded; in 1 353 ^ one belted knight of the same qualifications is to be returned. The regular order of parliaments, which had been interrupted by the plague, was resumed in 1355, and the writs omit the caution against maintainers and restore the clause ordering the return of belted knights; in 1356 both these are omitted, but the counties are warned that no one legally elected will be excused'^; in 1357 the belted knights are again asked for, and both knights and ^ Lords' Report, iv. 547. ^ Lords' Report, iv. 573, 575 ; Prynne, Reg. ii. 90. 2 Lords' Report, iv. 580, 583 ; Prynne, Reg. ii. 91. * Lords' Report, iv. 590, 593, 603, 605 ; Prynne, Reg. ii. 92. 5 Lords' Report, iv. 595 ; Prynne, Reg. ii. 92, 93. ® Lords' Report, iv. 600. Lords' Report, iv. 608. 400 Constitutional History. [chap. Qualifica- tions of the knights in- sisted on. Lawyers and sheriffs not to be chosen. Petition of 1376. burgesses are to be chosen ' de elegantioribus personis Be- tween 1356 and 137 1 the variations are unimportant; one writ for 1360 retains the warning against improvident elections, and another directs that the knights shall be chosen in full county- court^; in 1362 the demand is for the choice of men ' de melioribus validioribus et discretioribus varied in 1364 to * valentioribus This qualification is in 1370 expanded still further; the knights are to be belted knights and more approved by feats of arms, circumspect and discreet^. In 1372 was issued the parliamentary ordinance ^ forbidding the election of lawyers and excluding the sheriffs from candidature. In con- formity with this rule the writs of 1373 are very explicit, but the lawyers are not specifically excluded : the knights of the shire are to be belted knights or squires, worthier and more honest and more expert in feats of arms, and discreet, and of no other condition; the citizens and burgesses are to be chosen from the more discreet and more sufficient of the class who have practical acquaintance with seamanship and the follow- ing of merchandise ; no sheriff or person of any other condition than that specified may be chosen The form does not seem to have been approved. Two years later the simpler rule® pre- scribing ' duos milites gladiis cinctos magis idoneos et discretos ' appears ; the prohibition of the sheriff continues to be a part of the writ. Yet in the Good Parliament half the county members were squires unknighted. The petition of 1376 that the knights may be chosen by common election of the better folk of the shire, and not merely nominated by the sheriff without due election, was set aside by the king ; but the request seems to have been regarded as a warning to the crown not to tamper with the elections. Under Richard II the direction to elect in ^ Lords' Report, iv. 616 : Prynne, Reg. ii. 99 : this writ also directed the members to be present personally on the first day of the parliament. * Lords' Report, iv. 623, 626 ; Prynne, Reg. ii. 100. * Lords' Report, iv. 632 ; Prynne, Reg. ii. 10 1. * Lords' Report, iv. 638, 441, 643, 646; Prynne, Reg. ii, 102. * Lords' Report, iv. 648 ; Prynne, Reg. ii. 106. * See above, vol. ii. 425. ^ Lords' Report, iv. 661 ; Prynne, Reg. ii. 114, 115. ' Lords' Report, iv. 664, 667 ; Prynne, Reg. ii. n6. XX.] Writs for Elections. 401 full county court and by assent of the same was always inserted. Variations IjGComG less Although John of Gaunt was able the next year to pack the frequent, parliament with his own adherents, it is a long time before any new variation occurs in the writs. From the year 1376 on- wards the sheriffs are directed to cause to be elected 'duos milites gladiis cinctos magis idoneos et discretes ' and for the towns two members 'de discretioribus et magis sufficientibus.' In one writ of 1381 the old forn* is reverted to^; in 1382 the knights to be returned are to be either the same as attended the last parliament, or others ; a hint perhaps to return the same ^ ; in 1387 Eichard's unlucky attempt to secure men 'in modernis debatis in magis indifferentes ^' was summarily defeated ; and the following year the clause inserted in 1373, forbidding the election of persons of any other condition than that specified, was per- manently omitted the sheriffs alone being disqualified. With these exceptions the writs remain uniform until the year 1 404, when Henry IV stirred up strife by excluding lawyers from his ' unlearned parliament From this date all the changes in the writs are made in con- Changes sequence of the statutes by which from time to time the elections consequence were regulated, and they generally reproduce the exact language tions in the of the acts. The clause of the statute of 1406 ordering that the^^^* election be made by the whole county in the next county court ®, and the names chosen be returned in an indenture, appears as part of the writ : this example is followed down to the year 1429. In 1430, after the passing of the statute which fixes the forty shillings franchise, the same rule is followed, the clause of the act being inserted in the wrif^. Again in 1445 the commons petitioned that the statutes touching elections should be better enforced : the king agreed, and added that the persons chosen ^ Lords' Report, iv. 693 : ' discretioribus, probioribus et ad laborandum potentioribus.' Lords' Report, iv. 696. 3 jy^ >^25, 726. * lb. iv. 731 ; Prynne, Reg. ii, 117. 5 Lords' Report, iv. 792 ; Prynne, Reg. ii. 123. ^ * Quod facta proclamatione in proximo comitatu tuo libera et indifferenter per illos qui proclamationi interfuerunt' ; Lords' Report, iv. 802 ; Prynne, Reg. ii. 126. Lords' Report, iv. 877; Prynne, Reg. ii. 132. TOL. III. D d 402 Constitutional History. [chap. Final changes in the form. General inferences from these variations. The king's power to alter the writs. His wish to maintain custom ; and to enforce order. should be notable knights of the shire which elected them, or else notable squires, gentlemen of birth capable of becoming knights, and that no man of the degree of yeoman or below it should be eligible ^. The result of the petition and its answer was a long statute, all the essential clauses of which were in- serted in the writs from the year 1446 to the end of the reign. Edward IV altered the form in his first year ^, omitting specific references to the two statutes of Henry YI and the restrictions inserted in 1446, but retaining the more essential parts of the prescribed procedure. This form is observed to the end of the period before us. It is difficult to draw any definite conclusions from the variations which occur in the writs of Edward III ; they seem, however, to imply a mistrust of the influences supposed to be at work in the county courts ; and to have a general intention of urging the election of men of knightly rank and education, to the exclusion of professional lawyers and the maintainers of private suits. The mischief of faction and the danger of sacrificing public interest to private emolument were sufficient reasons for the restrictions inserted. The fact, that the king could insert them without remonstrance, does not prove that by dealing with the sheriffs he could procure their enforcement : the number of variations implies some power of resistance ; the lawyers were not excluded and belted knights were not always chosen. Yet the king no doubt felt that his power, even thus liable to be thwarted, was safer as it was than it would be if it were hampered with any constitutional change in the body of electors. He maintained accordingly the customary right of the county courts. The changes introduced under the Lancaster kings have already been noticed : they possibly imply a more important change in the constitution of country society, and claim a more distinct place in social history. We cannot question that the act of 1430 was demanded by the disorderly condition of the county courts, or that that of 1445 was the result of the choice of unfit and incompetent members. The lack of * Lords' Report, iv. 913, 920, 924, &c. ; Prynne, Eeg. ii. p. 135. * Lords' Eeport, iv. 951 sq. XX.] Troceedings at Elections. 403 Ofovernance common to the whole Lancaster period is exem- ]ilified in both the complaints. The tenour of the histoiy is enough, without a statutory rehearsal, to prove that there were riots even in the most solemn shiremoots, and that unworthy members sat in the fickle and subservient parliaments. The writs to the sherifis did not quite complete the com- Writs to /.II 1 rrn • • n i • i the Sheriffs position of the lower house. Those cities and towns which were of cities, made counties by themselves, or had sheriffs of their o'svn, London, Bristol, York, Norwich, Lincoln, Newcastle-on-Tyne, Hull, Southampton, Nottingham, Coventry, Canterbury, had writs addressed to their sheriffs; the constable of Dover and to the Cinque Ports warden of the Cinque Ports had the writ for the election of the and Lanca- barons of the Cinque Ports; the duke of Lancaster, or more generally the chancellor of the duchy or county palatine of Lancaster, had the writ for Lancashire and its towns. None of these writs exhibit anj^ important differences. 743. The abbots, barons, and judges, on the receipt of their Proceedings writs, had little to do except to obey: the bishops had besides receipt of this to order the election of the clerical proctors, which they did by forwarding the writ with a precept of their own to the arch- deacons to enforce it^ ; and, where the process was transacted at all, it was transacted in much the same way as the elections to convocation, by summoning the whole body of the beneficed clergy in the several archdeaconries. The work of the sheriffs was much more critical and complicated. The method of election to the house of commons, the questions of qualification and suffrage, and the theory as compared with the practice of the county court, open a wide field for discordant conjectures. The writ was returnable, as we have seen, in about forty County days, and the election was to be made in the county court : and this is nearly all that can be certainly affirmed of the ^ Forms of electing clerical proctors under the ' praemunientes ' clause will be found, in the case of cathedrals, Pari. Writs, I. 31, 34, 140, II. i. 293-296 ; and in the case of the diocesan cle^gJ^ one of xV.D. 1 304, Wake. State of the Church, app. p. 31. A list of the clerical proctors in the pai liament of Carlisle is given, Pari. Writs, I. 184-186. Atterbury gives a long series of instances in which proctors were elected under this clause, coming down to the j'ear 1678 ; Rights, Powers, and Privileges of Convocation, Additions to the first edition, addenda, pp. 81-93. D d 2 404 Constittitional History. [chap. early elections. It would be a waste of ingenuity to specu- late on the different courses that a sheriff, unguided by custom, may have adopted ; and, for the sake of a definite view, we must advance at once to the period which was affected by Proceedings the statute of 1406. This statute orders that proceedings shall under the „ , - pi statute of begin in the first county court holden after the receipt of the writ, and that the election shall be made in full county court by the persons present, specifying further the form of the return \ Unfortunately we have but few such data as would enable us to determine the nature of the ' plenus comitatus ' thus recognised Election in as the elective body. As the proceedings are to begin in the county first county court held within the forty days that elapse before the return of the writ, it is obvious that the court in question must be the court held every month or every three weeks by the sheriff, and not the sheriff's tourn which was held but twice a year. That this was the practice appears from the cases in which the sheriff, having to account for not returning knights of the shire in time for the opening of the session, pleads that no county court occurred before that date, and is excused ^. ^ The following is the clause of the statute : ' Item nostre seigneur le roy al grevouse compleint de sa commune del non dewe eleccion des chivalers des countees pur le parlement, queux aucune foitz sont faitz de affeccion des viscountz et autrement encountre la forme des briefs as ditz viscountz directe, a grand esclaundre des countees et retardacion des busoignes del communalte du dit countee, nostre soverein seigneur le roy vuillant a ces purveier de remedie, de I'assent des seigneurs espirituelx et temporelx et de tout la commune en cest present parlement, ad ordeignez et establiz que desore enavant les eleccions des tielx chivalers soient faitz en la forme quenseute ; cest a saver que al proschein countee a tenir apres la livere du brief du parlement, proclamacion soit fait en plein countee de le jour et lieu de parlement, et que toutz ceux qui illoeques sont presents sibien suturez duement somoines pur cele cause come autres, attendent la eleccion de lours chivalers pur le parlement ; et adonques en plein covmte aillent al eleccion liberalment et endiflFerentement non obstant aucune prier ou commaundement au contrarie ; et apres quils soient esluz, soient les persones esluz presentz ou absentz, soient lour nouns escriptz en enden- ture dessoutz les sealx de toutz ceux qui eux eslisent, et tacchez au dit brieve du parlement ; quele endenture issint ensealez et tacchez soit tenuz pur retourne au dit brief quant as chivalers des countees, et que en briefs de parlement affairs en temps advenir soit mys cest clause ; et electionem tuam in pleno comitatu tuo factam distincte et aperte sub sigillo tuo et sigillis eorum qui electioni illi interfuerint nos in cancellaria nostra ad diem et locum in brevi contentum certifices indilate ' ; 7 Hen. IV, c. 15, Statutes, ii. p. 156 : cf. Eot. Pari. iii. 601. ^ This was the custom before the act was passed; in 1327 the sheriff of XX.] County Elections. 405 This monthly or three weeks county court had however very much Election in dimmislied in importance since the thirteenth century; almost county '"^^^ all the great people of the county were relieved by the statute of Marlborough from attendance upon it ; many of its earlier functions had been handed over to the justices of the peace, and its ordinary judicial work was the decision of pleas of debt, which required the attendance of the parties to suits and the rota of qualified jurors, and of none others. As this would obviously be no true representation of the county, we expect to find that for the occasion of an election other persons were specially cited, and it is clear from the act of 1406 that this was the case ; 'all that Persons be there present as well suitors duly summoned for the same cause, to the as others, shall attend to the election.' From this it appears that although the court was the ordinary court, the persons com- posing it, or forming the most important part in it, were summoned for the purpose of the election. On the rolls of the parliament Order for by which the statute was passed there is an article, enjoined under notice no?^ oath on the members of the council, ordering that in the writs to iJlThe^^*^^ the sheriffs they should be directed to have proclamation made in all the market towns of their counties, of the day and place of elec- tion, fifteen days before the day fixed for the election. But although enacted by the king and sworn by the council the clause was never enforced ^. Some such warning was, however, absolutely Surrey and Sussex reports that between the day on which he received the writ and the day fixed for the parliament no county court was held, and therefore no election was made. In 1314 the sheriff of Wilts says that he received the writ only three days before the day of parliament, and that on that day, notwithstanding the brevity of notice, the members were ' celeriter electi' ; Prynne, Reg. iii. 172 ; Pari. Writs, II. i. 149. A similar case occurred in Devon in 1449 > Prynne, Reg. iii. 151 : there no county court was held until two days before the parliament met. In Leicester- shire in T450 the election took place after the parliament met, for the same reason ; ib. p. 163. ^ 'Item pur ce que les viscountz retoment chivalers du countee pur venir au parlement noun duement esluz, que ordeine soit, que en toutes tielx briefs qui isseront desore hors de la chauncelrie direct as viscountz pur tielx chivalers eslire pur venir au parlement, soit contenuz, que procla- macion soit fait en toutes les villes marches du countee du jour et Heu ou les ditz chivalers serront esluz xv jours devaunt le jour d'election, aufin que les suffisauntz persones enhabitantz en le dit countee y puissent estre pur faire election suis dit en due manere ; et que les ditz viscontz qu'ore sont, et qui pur le temps serront, soient serementez a ce tenir et executer, sanz fraude ou affection de nulluy' ; Rot. Pari. iii. 588. 4o6 Constitutional History. [chap. Power of the sheriff to cite electors. Possible misuse. The plenus romiiatus. necessary, and even if the sheriff could, on the spur of the moment, get together a county court, the election of borough members could not possibly be left to the chance of some of the authorities of each town being present at the county court. Strictly speaking then, the proceedings must have begun not in the county court itself but in the citation of the electors by the sheriff which preceded the holding of the court, whether according to the article just mentioned or in conformity with established custom. And the discharge of this function lodged great power in the hands of the sheriff; he might issue a general notice, or might summon the suitors who were bound by their tenure to attend ^, or might cite his especial friends, or might cite no one at all, and so transact the election in the presence of the casual suitors as to deprive the county of its right for the time. But that the county court, however composed, was the ' plenus comitatus,' and that all persons present liad the right of joining in the proceedings, seems certain from the wording of the statute, and the statute does not appear in these points to have made any change in law or usage. The petition of 1376 ^ On this point the Lords' Report (i. 149) expresses the opinion that the county court in which elections were held was the court baron of the county, and the proper suitors were only those who held land in the county, as distinguished from the sheriff's tourn which was to be attended by all residents. The three weeks or six weeks or monthly court is certainly the one meant by the next county court ; but it could hardly be regarded as a full county court if it contained only the persons legally liable to attend- ance, who were allowed moreover under the statute of Merton to appear by their attorneys. The reasons for holding that originally the fullest assembly of the shire was intended are given above, vol. ii. pp. 225 sq. If the theory of the Lords' Report went no further, it might be accepted as stating one at least of the intelligible ways in which the franchise was lodged in the hands of the freeholders ; but the report inclines to the belief that the freeholders electing were freeholders holding directly under the king (p. 151), and that accordingly the article of Magna Carta ordering the general summons of the minor tenants was carried into effect. It is evident however that the elections were attended by many who were not freeholders, or even proper suitors. The subject is obscure, and the customs were probably various. On the theory maintained in vol. ii, the original electors under Edward I were the persons legally constituting the county court, all landowners, and from every township the reeve and four men ; before the close of the reign of Edward III the whole body of persons assembled made the election whether they were legal suitors or not; the act of 1406 does not venture to alter this, but that of 1430 reestablishes the right of the freeholders, although only in the persons of the 4OS. freeholders. XX.] County Elections. 407 shows that the election was often carried through in the absence Disorders of of the better people of the county^; the act of 1430 declares court?""*^ that it was often dispatched by the rabble ^ ; the variations of the writs show that the persons whose influence was most dreaded were lawyers and promoters of litigation. The petition of 1376 again shows that the sheriffs exercised an influence which threw the electoral right of the suitors into the shade ; influence of the act of 1382^, which forbids the sheriffs to omit the regular in making cities or boroughs from his returns ^ proves that his influence was used even to extinguish the right of certain boroughs to return representatives; a petition of Rutland in 1406 shows that he was able occasionally to return members who had not been duly elected ^. On any theory the conclusion is inevitable The privi- . . lege of re- that the right of electing was not duly valued, that the duty of presentation representation was in ordinary times viewed as a burden andcientiy not as a privilege ; that there was much difficulty in finding duly qualified members, and that the only people who coveted the office were the lawyers who saw the advantage of combining the transaction of their clients' business in London with the right of receiving wages as knights of the shire at the same time. Thus, whilst in theory the right of election was so free that every person who attended the county court might vote, in practice the privilege was not valued, the power of the sheriff, and of the crown exercised through him, was almost un- controlled in peaceful times, and in disturbed times the whole proceeding was at the mercy of faction ^ This is of course a view of the worst phase of the business : no doubt in many cases the sheriffs were honest and faithful men, and the elections were duly held, but custom and not law prescribed the process, and until the act of 1406 neither law nor custom remedied the abuse. 744. This consideration enables us to see the importance of Change the one change introduced by the act of Henry IV. It directs HerS^ iv. . that after the election the names of the persons chosen 'shall be 1 Rot. Paxl. ii. 355 ; above, vol. ii. p. 433. ^ Above, p. 258. 3 Above, vol. ii. p. 433. * St. 5 Rich. II. stat. 2. c. 4. ^ See below, p. 422. « See below, p. 415. 4o8 Constitutional History. [chap. Law for written in an indenture under the seals of them that did choose the return i , , . . , to be made them ; this indenture is to be tacked to the writ and is to be indenture^ holden as the sheriff's return. By this rule the arbitrary power sheriff and of the sheriff is directly abolished ; the return is made essentially the electors ' by the voters, and the crown is enabled by examining the inden- ture to see at once the character of the persons who have taken part in the election. The indenture itself was not new ; under that name or under the name of 'pannel' the sheriff's return had from the first been endorsed on or sewed to the writ ; the novelty was in the security which the form of the indenture gave to the authenticity of the return. Importance A great number of these indentures are preserved \ and from indentures, these some inferences more or less conclusive may be drawn. We must take it for granted that the persons who sealed the indenture were those who were specially cited by the sheriff, or drawn from the same class of society ; and that the ordinary suitors or the persons who attended in consequence of any general proclamation must be regarded as included in the term ' plures alios ' or ' cum multis aliis,' or * in pleno comitatu/ in which the indenture embraces the residue of the electors ^. Number of The number of persons who seal the indenture, is in every the persons . n . i • t r. i • i sealing the case comparatively small: in 1407 the indenture lor Cambridge was sealed by twelve persons, for Huntingdon by eight; in 141 1 twelve join in the return for Kent, six 'cum multis aliis de communitate' for Derbyshire; in 1413 twenty-six persons elect for Wiltshire; in 14 14 fourteen elect for Cumberland, sixteen 'ex assensu totius communitatis ' for Somersetshire, twelve for Kent, nineteen for Surrey, twenty-four for Sussex, the same number for Dorset and Somerset, eleven and many others for "Warwickshire; in 1424 eighteen for Lancashire; in 1447 thirty-one for Gloucestershire, thirty for Surrey; the number of names rarely if ever exceeds forty. The quality of the persons who seal the indentures is less ^ See Prynne, Eeg. ii. 128-132 ; iii. 173-177, 252-312. 2 'Plures alios' ; see the indenture for Cornwall, Prynne, Reg. ii. p. 128 ; ' per assensum et consensum . . . . et omnium aliorum fidelium ibidem ex- istentium'; ibid, pp. 129, 130. XX.] Returns on Indentures. 409 easily tested. A comparison however of the names given in Quality of the indentures with the lists of sheriffs and knights of the shire for the respective counties, seems to show that whilst a fair proportion of the electors belonged to the families that furnished sheriffs and knights, the majority of the names are of a less distinguished class ; either ordinary squires who would not aspire to the office of sheriff, or, as possibly may be inferred from the character of the surnames, simple yeomen. Unfor- tunately the smallness of the number of indentures copied by Prynne makes it impossible to argue very confidently on this point. As for the character in which the persons who thus represent Questions themselves as electors acted, opinions may differ. It is most character probable that they acted primarily as certifying the return, and they acted, making themselves responsible for its correctness, and not as the only electors or as a body deputed by the county court to make the election for the whole constituency. Notwithstanding the terms of the act, directing that the indenture shall be sealed by all who have taken part in the election, it is certain that others who did not seal, and who probably had no seals, joined in it. One remarkable instance proves that such was occasionally the case, and suggests that it was also the rule. In 1450 the Election for electors for Huntingdonshire suspected that the sheriff wasS)nshire going to make a false return, and accordingly sent in a letter to ^''^°* the king which is found in company with the return. The indenture contains the names of three squires and two other per- sons who with 'alii notabiles armigeri, generosi et homines libere tenentes qui expendere possunt quadraginta solidos per annum' had made the election. The letter to the king is sealed by 124 who declare that they, with 300 more good commoners of the same shire, had elected two knights ; 70 others had voted for a person whom they regarded as disqualified by his birth ^. Besides the interest of this document, which is an important illustration of a contested election, it proves that whilst five names were sufficient for the indenture, 121 more were included in the general clause ^ Prynne, Reg. iii. pp. 156-159. Constitutioml History. [chap. Huntin^-^°^ 'alii notabiles/ and that 300 more freeholders had voted in the denshire. majority against 70 in the minority. In the election then for this small county, which had in 1741 about i6oo voters, and in 1852 contained only 2,892 registered electors, in 1450, 494 freeholders voted. But although this case conclusively proves that the right of In some election was not exercised by those only who sealed the inden- eases the ... m i i • sealers may ture, it IS quite possible that in some instances they were dele- a committee gated representatives of the whole body of suitors. In 14 14 the indenture for Somersetshire states that the sealers made the election ' ex assensu totius communitatis \' a form borrowed no doubt from the ancient return by the sheriff; but possibly implying that the election, like the ecclesiastical election 'per compromissionem' passed through two stages. And although there are no words in the returns that imply such to have been the case, at the same time it must not be forgotten that the custom of electing committees for various purposes had long existed in the county courts, and that the analogy of the borough elections, which went through two or three stages of the kind, may have affected the county elections also. Here again no evidence is at present forthcoming. But there can General be little doubt that the indenture was intended rather as a by the^^^^^ check on the sheriff than as a restriction on the body of mdenture. g|g(,^Qj.g . jjjj^g ^j^^ manucaption, it served to secure due com- pliance with the writ. Occasionally the sealers may have quietly ' cooked ' the return. The same inference may be drawn from the fact that the borough members were often returned by the same sealers as the knights of the shire : not that they were chosen by them, but that the return was certified by their authority. Unquestionably the power of the magnates whenever it was exerted, the influence of the crown exercised through the sheriff, the risk of popular tumult, and the per- sistence of local usage, as well as the freedom of the county courts, must be allowed to balance one another, and to affect the result. The strangest instance of local usage is found in the inden- ^ Prynne, Eeg. iii. p. 171. XX.] Yorkshire Elections, 411 tures of return for Yorkshire, which are quite unlike those of the indentures other counties, but so consistent with one another for a series Yorkshire of years as to prove continuity of usage ^. The indentures of from 1407, the reigns of Henry IV and Henry Y, and of Henry YI down*° to his twenty-third year, show that the electors who sealed the return were the attorneys of the great lords of the franchises. The indentures for 141 1 and 1414^ may serve as specimens of the series : in 14 11 the electors are the attorneys of Ralph earl of Westmoreland, Lucia countess of Kent, Peter baron de Mauley, William baron de Koos, Kalph baron of Greystoke, Sir Alexander de Metham, and Sir Henry Percy;* they represent their masters as common suitors to the county court of Yorkshire from six weeks to six weeks; in 14 14 the indentures are sealed by the attorneys of the archbishop of York, the earl of Westmoreland, the earl Marshall, the lord le Scrope of Masham, Peter de Mauley, Sir William Metham, the lord de Rocs, Margaret lady Yavasour, and Henry Percy. These indentures differ from the others not only incurious the character of the electors but in the nature of the interest of these they represent ; for in the other counties it is rarely that any one above the rank of esquire appears as a party to the election. One conclusion that can be safely drawn is that the sheriff of Yorkshire in 1 4 1 1 understood the writ differently from the other sheriffs, and that his successors followed slavishly in his steps. Of course it is possible that the Yorkshire county court jurisdiction may have been long broken up among the courts ^ Prynne, Reg. iii. pp. 152-154, 155. ^ The form in 1411 is this : The indenture made between the sheriff of the one part and the attorneys of the lords 'sectatorum communium [i.e. the lords] annuatim ad comitatum Ebor. de sex septimanis in sex septi- manas, ex parte altera, testatur quod facta proclamatione per dictum vice- comitem in comitatu praedicto, virtute cujusdam brevis &c. &c. praedicti attornati unanimi assensu et voluntate in praedicto comitetu existentes et plenariam potestatem de sectatoribus praedictis separatim habentes, libere et indifferenter elegerunt duos milites etc' After the act of 1445 the form is changed : it then becomes an indenture between the sheriff and forty-three squires and others ' electores militum ad parliamentum,' &c. ; but these persons still make the election ' unanimi assensu et con- sensu,' without any reference to the remainder of the county court. Prynne seems to imply that the first form was followed down to 1445, but he gives no instances between 1429 and 1447. Constitutional History. [chap. Yorkstoe of the Wapentakes and great franchises; so that recourse in petty causes was seldom had to it ; and it will be remembered that in 1220^ the stewards of the lords were the leading members of it. But although the great size of the county, and of the private jurisdictions embraced in it, may have led to such an attenuation of the six weeks' court, the assizes of the justices were always largely attended, and there could have been no difficulty in assembling a very large body of yeomen freeholders. The simplest solution is to view the return simply as a cer- tificate of an uncontested election. The anomaly, whatever its cause, was remedied by the act of the 23rd Henry YI; after which date the returns were made in the common form. Legislation The chanores in the forms of the county elections made by the under the ° . . / House of later Lancastrian legislation may be briefly stated : the act of Tj3.tic Sister «/ •/ on elections. 1410 placed the conduct of the elections under the cognisance of the justices of assize and established the penalty of <£ioo on the sheriff, and forfeiture of wages as the punishment of the members unduly returned ^ : the act of 1413^ enforced residence as a qualification of both electors and elected; and that of 1427 gave the accused sheriff and knight the right to traverse the decision of the justices ^ The act of 1430^ besides establishing the forty shillings' fi-eehold as a qualification for electors, gave the sheriff power to examine on oath the persons who tendered their votes, as to the extent of their property; and that of 1432 ordered that the freehold qualifying the elector ^ Vol. ii. p. 214. ^ See above, p. 257 ; St. 11 Hen. IV. c. i ; Statutes, ii. 162. ^ St. I Hen. V, c. I ; Statutes, ii. 170. * St. 6 Hen. VI, c, 4; Statutes, ii. 235. ^ St. 8 Hen. VI, 0. 7 : * que les chivalers des countes deins le roialme D'engleterre a esliers a venir a les parlementz en apres a tenirs, soient esluz en chescun counte par gentz demeurantz et receantz en icelles dount ches- cun ait frank tenement a le valu de xls. par an al meins outre les reprises ; et que ceux qui serront ensy esluz soient demeurantz et receantz deins mesmes les countes ; et ceux qui ount le greindre nombre de yceulx que poient expendre par an xls. et outre, come desuis est dit, soient retoumez par les viscontz de chescun countee chivalers pur le parlement par endenturs ensealles parentre les ditz viscontz et les ditz elisors ent affaires ; et eit chescun vicont D'Engleterre poair par auctorite suisdite examiner sur les seintz Evangelies chescun tiel elisour come bien il poet expendre par an' ; Statutes, ii. 243. XX.] Borovgh Elections. 413 should be situated within the county^. By the act of 1445 it is Precepts for further ordered that the sheriffs shall send to the magistrates elections, of the several cities and boroughs within their counties a pre- cept for the election to be made by the citizens and burgesses and returned by indenture between them and the sheriff^; the Penalties penalty on the negligent sheriff is <£ioo to the king and £100 observance, to the offended party, on the negligent mayor or bailiff J 40 to each ; the hours of the elections are fixed between eight and eleven in the morning : the persons to be elected are not Exclusion * . . of yeomen to be of or below the decree of yeoman ^ : and these directions from beinj- ^ . returned, are to be inserted in the writs. If we may argue fi'om the later indentures none of these regulations made much change in the form of the proceedings : the same class of men seal the returns before and after the act of 1430, and the same class of men are returned before and after the legislation of 1445. 745. The variations of the process of city and borou2:h elec- City and . . . . borough tions are, if not more extensive, at least more intelligible than elections those of the county elections ; the electoral bodies were more definitely constituted and the factors more permanent. Yet the historical difficulties of the subject are very great, and the materials for a trustworthy conclusion very scanty. As the formal election of the borough members took place, Formally tr8.risfl.ctc(i throughout the whole of this period, in the county court, and in the the returns were made in the same document as those of the court, knights of the shire, the causes which disturbed the regular and orderly elections of the latter, influence, custom and faction, would also affect those of the former ; and to these was added the fact that many towns felt a great reluctance to send members at * St. 10 Hen. VI, c. 2 ; Statutes, ii. 273. The statute of 1445 states that of late divers sheriffs have not made due election, or returned good and true men ; sometimes no return has been made of the persons really chosen, but persons have been returned who have not been chosen ; and the returns of the boroughs have been altered by the sheriffs ; the sheriffs have made no returns, or the writs have been embezzled ; they have sent no precept to the boroughs, and the penalties were not sufficient to ensure obedience. See St. 23 Hen. VI, 0, 14; Statutes, ii. 340. Compare the petition of 1436, below, p. 415. ' In 1447 the indenture for Surrey is in English, and the sealers say that they ' as notable squires and gentlemen,' have elected : Sussex makes a like return in Latin; Prynne, Keg. iii. 173, 174. 414 Constitutional History. [chap. all, and so to put themselves to the cost of their wages and ac- knowledge themselves liable to the higher rate of taxation. Power of AccordinHy in some of the earlier returns it is possible that the the sheriff , . ^ , i . to omit sherm, or the persons who lomed with him m electino: the knio^hts boroughs. . » & of the shire, elected the borough members also ^ : that both were elected 'in pleno comitatu' in a very perfunctory way; and that the sheriff omitted towns that he wished to favour and exercised that irresponsible authority which the statute of 1382 was Korough intended to abolish 2. But as a rule it is more probable that a reported in delegation of burghers from each town attended the county court*?""*^ court and either announced to the sheriff their own choice made on the spot, or declared the names of those whom their The writ townsmen had chosen in their own town-meeting. From the the borough returns of the reign of Edward II it is clear that the sheriff officers* • • • communicated the royal writ to the towns of his county and awaited their answer, before recording the names of their mem- bers ; if they neglected to answer he noted the fact on the writ ^. And this may be regarded as the legal method of proceeding ; the town authorities received notice to prepare for the formal election at the time when they were cited to the county The sheriff's court. This notice or mandate of the sheriff to the towns was precept. known as the sheriff's precept, and we learn from the act of 1445 that although at that date many of the sheriffs neglected ^ Returns made by the bailiffs of places where the bailiffs had the returns, are in Pari, Writs, i. 67, and others made by the sheriff where no such intermediate transaction took place, ib. i, 70, 75. Instances in which the return for the boroughs was made not only in the county court but by the sealers of the indenture of the knights are given by Prynne, Keg. iii. pp. 175 sq. Possibly these were the sole electors and the boroughs had neglected their duty, but far more probably the return is to be regarded as a mere certificate of election. ^ See above, vol. ii. p. 616. 3 A very good instance of this practice occurs in 1322 ; the sheriff of Suffolk gives on a schedule annexed to the writ not only the names of the elected members and their manucaptors, but the names of the bailiffs of the boroughs who sent in the returns. The next year the same plan is adopted, and, one of the elected knights not having a manucaptor, the sheriff issued a 'precept' to the steward of the liberty of S. Edmund's who replied that the knight in question was away on duty in the north ; Prynne, Reg. iii. 181 -1 84. The 'precept' is the document by which the sheriff directs the execution of the writ. The common return by the sheriffs ' Ballivi nullum mihi dederunt responsum' proves that this was the rule. XX.] Borough Elections. 415 to send the precept to their boroughs, the rule that it should Sheriff's . precept be done was held binding, and by that act it was enforced ^. ordered . . . by law. However negligently or perfunctorily then the sheriff might conduct the business, the legal plan varied little; it was his duty to transmit a copy of the writ with his precept to the town magistrates ; they superintended the real election ; and by their messengers or deputies the formal announcement, or formal elec- tion, was made in the county court ; and the same messengers or deputies, after the act of 1406, were parties to the indenture of return. Of the part of the work done in the county court Instance of the indenture for Dorsetshire in 14 14 may be taken as an elections illustration; in that year in the shire moot the members for on the Dorchester were elected by the assent of the whole community of the borough of Dorchester by burghers of the town ; those for Bridport by four burghers of Bridport; and those of the rest of the towns in exactly the same way ; all are returned on one indenture, but the process takes place in each case uni- formly ; four representative burghers attend, like the four men and the reeve in the ancient folkmoots, and on behalf of their neighbours transact the business of the day. That business may have been the primary election ; but in many cases and perhaps in all it was only the report of the election made at home. It is probable that in the large and better organised towns this formality was always observed, whilst in those which had no chartered government the sheriff would be left to manage the election as he pleased. It certainly appears from a petition presented in 1436, that the interference of the sheriffs in the town elections was both arbitrary and vexatious ; they returned mem- bers who had not been duly elected ; the commons prayed that they might be compelled to do right, or be fined ^ When the time comes for the ancient towns of England to Uncertainty reveal the treasures of their municipal records, much light must Sst^oms of be thrown upon the election proceedings of the middle ages, the matter" At present what little is known of them is to be gathered from a few scattered sources ; but it would appear certain that the ^ See above, p. 413. ^ Prynne, Reg. iii. p. 255. 5 Rot. Pari. iv. 511. 4i6 Constitutional History, [chap. whole order of proceeding rested upon local usage and might be altered by local authority, and that the rule adopted in tlie municipal elections of the particular town was generally fol- London lowed. The custom of London in the reign of Edward I, clcctjions* described in a former chapter, was that the election should be made by the mayor, the aldermen and four or six good men of each ward ^ ; a method likewise adopted for the election of the mayor himself. In 1346 an ordinance was passed in the city directing that twelve, eight, or six persons from each ward should come to the assemblies for electing the lord mayor, sheriffs and mem- bers of parliament. In 1375 another change took place; the elections were to be made by the common councilmen, and the common councilmen were to be nominated by the trading com- panies. Notwithstanding an alteration made in the appointment of common councilmen, the elections were transacted, from this date to the fifteenth year of Edward lY, by a body summoned by the lord mayor from a number of persons nominated for the purpose by the companies ; and in the latter year the franchise was formally transferred to the liverymen of the companies ^. It can hardly be supposed that the smaller chartered cities whose privileges were modelled on those of London would follow these changes, but the earlier custom might very well be Custom at followed in places like Oxford. At Bristol, after the town was Eristol. ^ . made a county by Edward III, the election seems to have fol- lowed the custom of the county elections; accordingly, when the forty shillings suffrage was established the members were returned by the forty shillings freeholders only^; of these from twenty to thirty seal the indentures ; it may be inferred that the proceeding was direct and went through only one stage. Elections At York, which was likewise a county, a somewhat similar at York. . ' . . . , practice appears as soon as there is any direct evidence, in the ^ See above, vol. ii. p. 234. The London election of 1296 is described in Pari. Writs, i. 49 ; that of 1300 ; ib. p. 85. In 1314, the mayor, aldermen, and probi homines of each ward, chose three citizens, out of whom the mayor and aldermen chose two ; and the commons three, of whom again they chose two ; these four or two of them had full powers given them ; ib. II, i. 1 29 : yet only two were summoned in the writ. 2 See below, ch. xxi ; Norton, Commentaries on London, pp. 114, 115, 1 26. 2 Prynne, Eegister, iii. p. 360, 368. XX.] Borough 'Elections. 417 reign of Elizabeth. On October 28, 1584, thirty-six freeholders Double process of and commoners appeared and heard the writ in the council election at chamber ; they then went into the exchequer court and voted privately; four names, the result of this conclave, were laid before the assembled freeholders who chose two by a majority of votes ; on the 9th of November the names were submitted to and approved by the county court of the city ^. Traces of the same form may be found in the earlier York records, although in 1484 the proceedings seem to have occupied but one sitting of the council ^ and there is no notice of any approbation of the county court ; earlier still, in 14 14, the indenture shows that the lord mayor and thirteen ' co-citizens,' having full power from the whole community, chose two citizens^. Unfortunately the ambiguity of the word 'community' deprives this and many other similar instances of any great significance. Other in- stances seem to suggest that the favourite way of making the election was a double one ; a small committee or jury of electors was chosen, or otherwise nominated, or a pretaxation was made by the ruling officers of the community. At Leicester, from Elections at the time of Edward IV to the Restoration, the mayor and Norwich? twenty-four chose one member, the commons the other*. At and^^^^"^'^ ' Norwich in 1414 an agreement was made that the election should be made by the common assembly and reported in the county court °. At Shrewsbury in 1433 it was agreed that the burgesses should be chosen in the same way as the auditors ; that is, after three peals of the common bell, by the assem- bled commons, and not by a bill ' afore contrived in disceit of the said commons ^' At Worcester in 1466 the rule was that the members should be chosen openly in the Guildhall by the in- habitants of the franchise, ' by the most voice, according to the law and to the statutes in such case ordained, and not privily'^.' 1 Drake, Eboracum, pp. 358, 359. " Davies, York Records, pp. 138, 144, 181, 184. In 1482 the entry is 'Dec. 13, &c. At thys day be the advise of the hell counsell my lord the mair, Richard York, and J ohn Tong war chosyn citizins and knights of the parlement for this honorabill cite and the shir of the same' ; p. 138. 3 Prynne, Reg. iii. 268. * Nichols' Leicestershire, i. 432. 5 Blomfield's Norfolk, ii. 95. « Rot. Pari. iv. 478 ; v. 175. Smith's Gilds, p. 393. VOL. III. E e 41 8 Constitutional History, [chap. In towns of simple constitution the election may have been transacted by the older machinery of the leet ; and the leet jury Complex would elect the members. In others it was very complex. At elections at . Lynn and Lynn m 1 384 the members were elected by John a Titleshall Cambridge. eleven others forming a jury \ How this jury was chosen we learn from the Lynn records of 1432 and 1433 : the mayor, with the assent of the town meeting, nominated two of the twenty-four, and two of the common council ; these four chose four more, two out of each body ; and these eight co-opted two more, and the ten two more ; these twelve, being sworn accord- ing to custom to preserve the liberty of the town, chose two burgesses to go to parliament ^. A similar rule was adopted at Cambridge, whence probably it had been borrowed by Lynn ; in 1426 the members were elected by a select body of eight burgesses ; this election by eight is described in the year 1502 : the mayor and his assessors nominated one person, and the com- monalty another, these two elected eight, and the eight elected the members. The custom had been maintained, and is called the custom of the borough, notwithstanding an ordinance of the corporation made in 1452 directing that the election of the burgesses of the parliament should be chosen ' by the most part of the burgesses in the guildhall at the election, and not one for the bench by the mayor and his assistants and another by the commonalty as of old time hath been used ^/ Variety of These instances are sufficient to prove that the exercise of the qualification , , „ , . pit i • mi of voters, local franchise was a matter of local regulation until the cogni- sance of elections was claimed and recognised as a right and duty of the house of commons. As it is difficult even conjec- turally to realise the formal process of the election, it is more difficult to say in whom the right of suffrage in the boroughs ^ Beloe, Our Borough, p. 25. ^ ' 1433, June 17. The king's writ was then publicly read for electing members of parliament. And for electing them the mayor called two of the twenty-four and two of the common council, which four chose two more of the twenty-four and two of the common council, and they chose four others, who all unanimously chose John Waterden and Thomas Spicer to be burgesses in parliament.' 1437, Jan. 7, a similar election was held, the mayor nominating the first two by the assent of the whole congrega- tion: Extracts from the Records of Lynn, Archaeologia xxiv. 320. 2 Cooper, Annals of Cambridge, i. pp. 173, 205, 272. XX.] Borough Elections. 419 was supposed to lie : the whole of our medieval history scarcely Obscurity furnishes more than one or two instances of a contested county SveiSty 0? election: the town liistories are altogether silent. And ^j^^^i^^^^^^^*'^"- differences and difficulties, which arise as soon as political life wakes again in the seventeenth century, show that this ohscurity is not new. The franchise, as soon as its value was ascertained, became a subject of dispute between different classes of men, or different candidates for the representation, in every town: the great addition of borough members to the house of commons, caused by the measures of the Tudor sove- reigns, brought an influx of strange novelties; the old towns which had never been troubled with a contest had no precedents of custom to allege ; in some instances the rules for municipal elections were applied to the parliamentary elections, in others, the custom of the county courts was followed, and in others the inhabitants were left to follow their own political instincts of freedom or repression. The increased strength and exclusive- ness of the corporations in the chartered towns had in some instances withdrawn the choice of the members altogether from the body of townsmen : in others the weakness of the magis- trates had let it slip altogether into the hands, of the freemen. In all cases the elections were becoming direct and primary. It is impossible to argue back from the parliamentary Illustrations judgments of the seventeenth century to the practice of the modem • • • • proc6cliir6 middle ages : but, as it is improbable that any completely new system of franchise was introduced in the sixteenth century, we may briefly indicate the several theories or customs which are found in working when our knowledge of the subject begins. The most ancient, perhaps, of the franchises was that depending on burgage tenure ; this was exactly analogous in origin to the > freeholder's qualification in the counties ; but as the repressive . principle extended, the right of a burgage vote had become in many places attached to particular houses or sites of houses, probably those which were originally liable for a quota of the firma burgi; in others the right still belonged to the whole body of freeholders ; and this may be regarded as a second sort of franchise. A third custom placed the right to vote in the, E e 3 420 Constitutional History. [chap. Changes in particular places. Diversities freemen of tlie borough, or of the guild which was coextensive ' with the borough ; the character of a freeman being personal and not connected with tenure of land or contribution to the public burdens. A fourth gave the electoral vote to all house- holders paying scot and lot ; that is, bearing their rateable pro- portion in the payments levied from the town for local or national purposes. A fifth lodged the right in the hands of the governing body, the corporation ; the constitution of which again varied from comparative freedom in one place to oligarchic ex- clusiveness in another. The newer the constitution of the town was, the less liberal the constitution seems to have been, and several places, which must in early times have enjoyed fairly free institutions, had, by accepting new charters, lost their liberties, at all events in this particular. As the towns were constantly purchasing new charters, the perpetual changes in their consti- tutions add a further element of difficulty to our inquiry ; but it is obvious that the tendency to restriction set in from the first institution of charters of incorporation in the fifteenth cen- tury. The ancient cities of "Winchester and Salisbury saw their electoral rights confined to the small body of the corporation, sixty in one and fifty-six in the other \ Old Sarum retained the burgage franchise, its desolation saving it from a new charter. Twenty-three persons returned the members for Bath. But for our purpose no further conclusions need be drawn from such premises. The antiquity of the borough was no guarantee for its freedom ; its municipal symmetry no security for the soundness of its political machinery. Aylesbury, a new borough of Mary's creation, did not even care to maintain its corporate character, and in the days of Elizabeth the lord of the manor returned the members. Aldborough and Boroughbridge, two boroughs in the same parish, had different franchises ; scot and lot gave the right in one, burgage tenure in the other. Both of these were members of the great liberty of Knaresborough, and Anomalies not to be reduced to rule. * These and the following instances will be found, illustrated by the reports of the election committees of the house of commons upon them, in Browne Willis's Notitia Parliamentaria, in Carew on Elections, in the Ap- pendices to the Royal Kalendars of the last century, and in local histories generally. The primary authority of course is the Commons' Journals. XX.] Disputed Elections. 421 that town also returned two members and retained the burgage vote. In the Cinque Ports, where at least symmetry might have Every been looked for, equal variation is found ; at Hastings, Dover, has^tf own Sandwich, E-ye and Seaford the constitution was open ; at New Romney, "Winchelsea and Hythe it was close. These anomalies grew up in the new boroughs as well as in the old ones : the older and larger cities, with the exceptions already noted, main- tained their liberties ; Norwich, Bedford, Reading, Cambridge, Gloucester, Northampton, Newcastle- on -Tyne, Coventry, and York, retained the scot and lot franchise. But every borough has had a history that was all its own ; and some had consti- tutions and mixtures of franchise as confused as their obscure history. 746. Medieval history records little about contested or dis- Cases of puted elections. In an age when the office of representative disputed was regarded rather as a burden than as a privilege, it is not sur- prising to find that contested and disputed returns were caused rather by the difficulty of finding candidates than by the rivalry of the competitors themselves. Such was the case in the early days of parliament ; in 1 3 2 1 the mayor of Lincoln writes to the Keeper of the Rolls of parliament, that one of the two elected members, who had gone so far as to assent to his election, would not deign to attend the parliament ^. But the sherifi" was gene- The sheriff rally the person to blame. In 1 3 1 9 Sir William Martyn, who iS Devon, had been elected, on the nomination of the bishop of Exeter, knight of the shire for Devon, petitioned the council against the undue return made by the vice -sheriff, who had substituted another name : Martyn obtained a summons for the offending officer to answer for the false return in the Exchequer ^. In and ^ 1323 it was alleged by the grand jury of West Derby wapen- take that William le Gentil, when sheriff, had returned two knights of the shire without the consent of the county, whereas they ought to have been elected by the county ; he had also levied twenty pounds for their wages, although the county could ^ Pari. Writs, II. i. 252. They had elected Henry de Hakethom and Thomas Gamel ; Thomas would ' ne se deygne venir pur riens que nous Savons faire' ; so they had chosen Alan of Huddleston instead. ^ Prynne, 4th Inst. p. 31 ; Hallam, Middle Ages, ill. 109. 422 Constitutional History/. [chap. Contested have found two men who would have gone to parliament for d6ct)ions ten marks or ten pounds ; his predecessor, Henry de Malton, had | done the same^. In 1362 the county of Lancashire was again in trouble : the king wrote to tell the sheriff that there was a great altercation concerning the last election, and directed him to hold an examination in full county court as to the point whether the two persons named in the return were duly elected ; and, if they were, to pay them their wages ; if not, to send in the names of the persons who had been so elected. On examin- ation it was found that the two knights whose names had been returned were themselves the lieutenants of the sheriff; they had kept the writ, returned themselves without election, \ and levied the wages to their own use : the king, puzzled appa- rently at so impudent a pretension, had to apply to the justices ' of the peace to ascertain the facts and stop the proceedings of Shaftesbury, the sheriff^. In 1384 the burghers of Shaftesbury petitioned the king, lords and commons, in respect of their election : the sheriff of Dorset had substituted the name of Thomas Camel for that of Thomas Seward, whom, with Walter Henley, they had Rutland. elected; and they prayed a remedy^. In 1404 the county of Rutland elected John Pensax and Thomas Thorpe ; the sheriff returned John Pensax and William Ondeby ; on a representa- | tion made by the house of commons to the king, the lords were j directed to examine the parties ; Thorpe was declared duly j elected; the sheriff was ordered to amend the return and re- moved from office*. The case however which is most closely parallel to more modern usage is that which has been already Hunting- noticed as illustrating the proceedings at elections. In 1450, in Huntingdonshire, the sheriff returned two knights, Robert Stoneham and John Styvecle ; but annexed to the indenture of | return is a memorial from 124 freeholders, who declare that | ^ Pari. Writs, II, pt. i. p. 315. 2 Prynne, Reg. iv. p. 259 ; Hallam, Middle Ages, iii. 109. ^ Prynne, Reg. iv. p. 1114; Carew, On Elections, p. 118. j * Rot. Pari. iii. 530; Hallam, Middle Ages, iii. no: the other case noticed by Hallam, the election of Camoys a baron and banneret as member j for Surrey, and that of Berners, who was elected for Surrey when he was already knight of the shire for Kent, are not cases of disputed election but ; of the choice of disqualified persons ; Prynne, Reg. ii. 118, 119. I XX.] Contested Elections. 423 they, with more than 300 good commoners of the shire, had Precautions voted for Stoneham and Styvecle, whilst seventy others had false return, voted for one Henry Gimber, a man not of ' gentill birth ' as the royal writ prescribed ; their right was clear, but the under- sheriff having attempted to hold an examination on oath, Gim- ber's friends had threatened a riot ; not knowing how the sheriff would act, they had determined to make the matter sure j for- tunately for himself the sheriff had made the right return ^. No doubt the sheriff frequently had hazardous work; in 1439 Case of no no return was made for Cambridgeshire; the sheriff was called up and ordered to publish the writ with a prohibition against the appearance of armed men at the election ; it may be fairly inferred that the former election had been prevented by force ^. These few instances serve to illustrate the more general com- plaints against the sheriffs which are from time to time made the basis of legislation on this point. They further show that Right of the house of commons had not yet thought of asserting any di?puSd claim to determine the validity of elections. Until the Act of 1406 the sheriff had to return the writ in full parliament ; and the king, in or out of parliament, took direct cognisance of complaints ^. After that Act the writ was returnable in Chan- cery, and by the Statute of 14 10 the judges of assize were authorised to inquire into the undue returns. But the validity of the return was still, it would seem, a question for the king to consider, with the help of the lords, as in the Rutland case, or with the help of the judges. The right of the commons was claimed by first distinctly asserted in 1586*: in 1604, in reference to the commons.°^ election for Buckinghamshire, the commons, in the apology ad- dressed to James I, represented the question as one in dispute between their house and the chancery ^ : from the time of the Restoration to the Grenville Act in 1770 election petitions were ^ Prynne, Reg. iii. 157. 2 Prynne, Reg. ii. 139; Hallam, Middle Ages, iii. no. In 1453 the king had to write to the chancellor of the University not to allow the scholars to impede the election. Cooper, Annals, i. 206. ^ Prynne, Reg. ii. 119, 122. * Hallam, Constitutional History, i. 274 sq. ' Hatsell, Precedents, i- 233. 424 Constitutional Kidory. [chap. determined by the whole house ; that act provided for the for- mation and regulation of election committees ; and very recent legislation has returned to something like the ancient practice by placing the determination of these disputes, and the infliction of penalties resulting from them, in the hands of select judges. The persons Scarcely any point illustrates the intention of the crown and be resident, of the legislature to make the house of commons a really repre- sentative body more forcibly than the measures taken both in the writs and by statute to secure the election of persons bona fide resident among their constituents. From very early days the writ had ordered that the knights of the shire should be men of the county that elected them. The statutes of Henry IV and V enforced residence as a requisite for electors and elected alike, and that of Henry VI prescribed that the quali- fication of both must lie within the shire. The same rule applied to the boroughs. And it was for the most part strictly observed; the members were generally 'co-citizens' or 'com- burgesses ' ; for although the more strictly senatorial theory of modern times declared the statute of 14 13 unfit to be observed^, the medieval communities were justly jealous of their relation The mem- to their paid representatives. At Lynn, and probably iu other account of placcs, the members, after the session of Parliament was over, to?hei?con- brought down a full account of its proceedings and reported stituents. publicly. It was after the rise of the political jealousies of the Tudor times that strangers began to covet and canvass for the borough membership : and the statute of Henry V was then evaded by admitting them to the free burghership. Thus at Lynn, in 1 6 1 3, Sir Eobert Hitchen and Sir Henry Spelman, two persons foreign to the town, prayed to be elected burgesses ^. The corporation replied that they intended to act upon the Strangers statute of Henry V, and elected two of their neighbours. At from Cambridge, in 1460, the magistrates, probably with the inten- tion of warning off political candidates, published an ordinance directing: that for the future no non-resident should be elected burgess ^ See Hallam, Middle Ages, iii. 119, Aichaeol. xxiv, 372. ^ Cooper, Annales, i. 211. XX.] Full Towers of Memhers. 425 Other measures of exclusion or restriction, tlie prohibition Other of the sheriffs, of lawyers, of maintainors, of ignoble persons, and the like, have been already noticed in our account of the writs ; the points of social importance which are connected with them belong to another chapter. 747. When the process of election had been completed, pro- Security for , „ . , theattend- vision was made for securing the attendance and competence 01 the ance of the * . 1 1 members newly-chosen representatives. For each of them manucaptors or elected, bailsmen were provided, who were bound for their obedience to the writ, and the names of the manucaptors were entered in the return. This manucaption was intended to secure the attendance of the members. To assure their full powers, they had letters of com- mission or of ' ratihabition,' or powers of attorney, such as were usually furnished to proctors or representative officers ^. After the Act of 1406 the importance of the manucaption was much diminished, the names of the electors entered on the indenture of return being a sufficient warrant for the responsibility of the persons elected ; but the indenture likewise contained an equi- valent to a power of attorney. Besides this the assembly which Vote 6f elected the members frequently passed a vote determining the tife^con-*^ sum to be paid to them as travelling expenses or wages. This was done by the citizens of London in 1295 and by those of York in 1483 ; it may therefore have been continuously re- garded as a grant in the power of the represented communities to determine ; but the payment was also provided for by a royal writ, issued at the close of the session to the several sheriffs and bailiffs, which fixed the amount to be paid to each according to the number of days of session, the length of the journey, and a fixed rate per diem^. The constituents seem in some cases to ^ The form in which the full powers were given was not always the same : in 1 290 the sheriflFs of Devon, Lincoln, and Northumberland men- tion in their returns the bestowal of the ' plena potestas' ; Pari. Writs, i. 21-23. See also pp. 39, 41, 59, 60, 66 sq. The mayor and sheriffs of London gave their members a separate commission over and above the return endorsed on the writ, in 1304 ; Pari. Writs, i. 146 ; and afterwards ; ib. II, i. 7, 30, &c. At Lynn in 1433 the election took place on Jan. 7 ; the letters of authority were sealed with the common seal, Jan. 16 ; and generally a few days after the election; Archaeol. xxiv. 321. ^ See below, p. 483. 426 Constitutional History. [chap. have made a bargain with their representatives to do the work for less. A^s^mbly 748. The newly-elected knights, citizens and burgesses, thus parliament, bound over to appear, fully empowered, fairly well provided for, and further invested with the sanctity of ambassadors by the sacred privilege of parliament \ took their journey to Westmin- ster or the other place of meeting, and presented themselves before the king or his representative on the day fixed. Their writs were produced with them by the sheriff himself or his messenger, and this, with the letters of commission, completed the verification of their powers. At the appointed time and place they met the lords spiritual and temporal, and in the king's presence the parliament was constituted. Arrange- The ceremony of opening the parliament generally took place the estates in the Painted Chamber ^ where the king's throne was placed at Parliament the upper end ; the bishops and abbots were arranged accord- hamber. their proper precedence on the king's right hand, the lords temporal in their several degrees on the left ; at the lower end of the room the knights of the shires and representative citizens and burgesses took their stand. In front of the throne were the woolsacks on which the judges sat, and the table for the clerks and other officers of parliament. Occasionally the session is said to have been opened in the White Chamber, near ^ See below, p. 494, ^ The Painted Chamber is first mentioned as the place of meeting in 1 340 ; Rot. Pari, ii, 107, 117 : again in 1341, ib. p. 127 ; of. vol. ii. p. 387 above. In 1343 the session opened in the Painted Chamber, April 30; the com- mons met in the same chamber May 12, the lords in the White Chamber ; the next day both houses met the king in the White Chamber, ib. pp. 135, 136. The king met the two houses in the WTiite Chamber in 1344, p. 148. In 135 1 the two houses met in the 'Chaumbre Blanche pres de la Chaumbre Peynte' where the commission for opening the parliament was read, and afterwards in the Painted Chamber where the causes of summons were declared; ib. p. 225. In 1365 both met in the Painted Chamber where the commons stayed, the king and lords returning to the White Chamber; ib. p. 283 : after the lords had deliberated the commons were called in; p. 284: so also in 1366 and 1373; pp. 289, 316. In 1368 the commons sat in the lesser hall, p. 294. In 1382 the meeting was in a chamber 'arraiez pur parlement'; but the opening speech was made in the Painted Chamber ; ib. iii. 132. In 1386 the impeachment of Michael de la Pole took place in the Chamber of Parliament; p. 216. In 1383 Nicolas Brember was sentenced in the White HaU ; iii. 238. XX.] Opening of the Session. 427 the Painted Cliamber, no doubt the room afterwards used for the House of Lords. Henry VII used the Chamber of the Holy Cross. The king was almost always present in person ; when he The king was not, the commission under which his representative, whether present, the regent of the realm or some great officer of state, acted, was read before the proceedings commenced^. A proclamation to ensure peace was also made in Westminster Hall. The first act of the meeting was to call over the names of the The returns elected knights, citizens and burgesses, so as to identify them with those returned by the sheriffs ^. Possibly the roll of the lords summoned may been called over at the same time. Such was the case in 131 5 when they were dilatory in arriving, but the regular adoption of the practice may have been somewhat later. The Statute of 1382' ordered an amercement to be laid Fines on on all who failed to obey the summons, but both before and after the passing of this act it frequently happened that lords and commons alike showed themselves unpunctual. In 1377, for in- stance, a few lords met in the White Chamber and waited until the late hour of noon for their brethren ; it happened that many ^ In 1307 Edward I commissioned the bishop of Lichfield and the earl of Lincoln to open parliament at Carlisle; Pari. Writs, 1. 184: in 1313 Edward II empowered the earls of Gloucester and Richmond ; Rot. Pari, i, 448 : see other cases ib. pp. 450. Instances under Edward III are given by Prynne, Reg. i. 425 sq. ; Rot. Pari. ii. 106, 225, &c. In 1316 William Inge, a justice, was ordered by the king to announce the cause of summons on the day of meeting : the proxies were then examined, petitions received, triers and auditors appointed ; but the political business was delayed until the earl of Lancaster came ; the king's place in the parlia- ment being in the meantime supplied by a commission of lords. When the earl came, the cause of summons was again read and the estates l etired to deliberate ; Rot. Pari. i. 350, 351. This is important as being the form observed in the first extant Roll. ^ In the parliament of Lincoln in 131 6, the chancellor, treasurer, and a justice were appointed to examine the excuses and proxies of the absent lords, and to report to the king the names of those who had sent none or only insufficient excuses, 'ita quod ipse inde posset percipere quod de- beret' ; Rot. Pari. i. 350. The names of the lords were called over in 1344 for the king to learn who had come and who not; ib. ii. T47. For the proceedings in 1379, ^oi. Pari. iii. 55 ; in 1380 the knights of the shire, citizens, and burgesses were called by name, ib. pp. 71, 88 ; in 1384 it had become an established practice : 'nominatim invocatis prout moris est'; ib. 184. 2 5 Rich. II. st. 2, c. 4; Statutes, ii. 25; Rot. Pari. iii. 124. No oaths were taken until i Eliz. ; Prynne, Reg. i. 406. 428 Constitidional History. [chap. Adjourn- ment for fuller attendance. Opening" speech or sermon. Appoint- ment of triers. had not come to town, and some sheriffs had not sent in their returns; the king, who was kejit waiting likewise, postponed the ceremony to the next day ^. This sometimes was done day by day for a week'*. When however there was a sufficiently large muster, the names were called and the cause of summons declared in a solemn speech by the chancellor, by the archbishop of Canterbury, the lord chief justice, or by some other great officer of state, at the command of the king*. The speech, of which many specimens have been given in the foregoing pages, usually began with a text of Scripture or some thesis chosen by the orator himself, and partook more or less of the nature of a sermon ; the application of the doctrine came at the close, and generally contained a statement of the royal difficulties, a demand for supplies, and a promise of redress for grievances personal or national ; immediately after this promise the king appointed receivers and triers of petitions and the two houses separated. Now and then a second speech was made to the conjoint assembly a day or two later by the chancellor or some officer of the household ; and even a third exposition of the cause of summons was occasionally vouchsafed ^ ; but more fre- 1 Kot. Pari. iii. i. ^ See instances in 1340; and almost every year of Eichard II. Rot. Pari. ii. 107, 112, &c. ^ The first occasion on which the commons are expressly said to be present at the 'exposition' of the cause of summons is in 1339 ; Rot. Pari, ii. 103 ; cf. i. 350. In January 1340 the cause is specially declared to the commons; Rot. Pari. ii. 107. In March 1340 the cause is declared first to the lords specially, and then to the lords and commons generally; ib. p. 112. In July 1340 they are again mentioned as present. In April 1341 the cause is declared to the lords and council, but the commons seem to have been there ; ib. p. 127. * From 1347 to 1363 the chief justice makes the opening speech ; the chief justice of the Common Pleas in 1401 ; the archbishop of Cantei-bury in 1344, 1368, 1377, 1399, and 1422; the chancellor in 1343, 1363 (in English) and generally after 1368 ; the bishop of Winchester in 1410 ; the bishop of Lincoln in 1453 and 1467, the bishop of Rochester in 1472, and the keeper of the Privy Seal in 143 1, supplied the place of the absent chancellor. The longest recorded sermon is that of bishop Houghton in 1377 ; Rot, Pari. ii. 361 ; but Michael de la Pole made quite as long an address in 1383 ; ib. iii. 149, 150. See Elsynge, Ancient Method of holding Parliament, pp. 131 sq. ^ In 1 378, at the Parliament of Gloucester, the chancellor on two different days addressed the whole parliament, and the speaker of the commons had to repeat the main points of the speech to them; Rot. Pari. iii. 35. In 1 38 1 the chancellor made the first statement; a day or two after, the XX.] Withdrawal of the Commons, 429 quently tliey separated on tlie first day ; the commons being withdrawal ordered to withdraw to their regular place of meeting and choose Commons, a speaker, and both estates being warned that they must get early to work. The morning hours were very precious ; in 1373 the commons were directed to meet at the hour of prime; in 1376 and 1378 at eight; in 1397 and 1401 the chancellor fixed ten in the morning for the meeting in the Painted Cham- ber; in 1406 the commons were ordered to meet at eight, the lords an hour later; in 14 13 the commons had to meet at seven and to present their speaker at eight ^, The apart- ment to which the commons usually withdrew was the Chapterhouse of Westminster Abbey ^, which is termed in Their place the Rolls their ancient and accustomed place ; very often how- tion. ever they met in the Refectory which was specially assigned for their use by Henry V in 14 14 and 1416^. The Chapter- house was, until the reign of Edward VI, their withdrawing room or place of separate deliberation. Their communications with the king or lords were held in the Painted Chamber, in the White Chamber, or in the Little Hall of the palace, conferences Edward I, in 1297, is found gathering the knights in his ownJi'ng.*^^ private chamber to obtain a separate vote of money * ; the Black Prince, in 1372 ^, assembled the borough members in his cham- ber, when he wanted a vote of tunnage and poundage ; and Henry VI, in 1450, after the impeachment of Suffolk, collected the lords ' in his innest chamber with a Gavill window over a treasurer repeated it, and a few days later lord le Scrope, the newly appointed chancellor, made a third exposition; Rot. Pari. iii. 98-100. ^ Eot. Pari. ii. 316, 321 ; iii. 33, 338 ; iv. 9. 34, 495. ' The first time that the commons were directed to withdraw to the Chapter- house seems to be in 1352, when they were told to elect a committee to confer with the lords, and the rest to retire to the Chapterhouse and wait for their companions ; they did not comply with the first direction, and so the second was superfluous; Eot. Pari. ii. 237; vol. ii. p. 408. The next time the Chapterhouse is mentioned is in 1376, when the commons, who had met generally in the meanwhile in the Painted Chamber (above, p, 426), were ordered to withdraw ' a lour aunciene place en la raaison du chapitre de 1' abbe, de Westmostier' ; ib. p. 322 : also in 1377; p. 363, iii. 3. In 1395 they were told to assemble in the Chapterhouse or Eefec- tory to elect a speaker; p. 329: and they met in the Eefectory in 1397 ; ib. 338. * Eot. Pari. iv. 34, 94. * Vol. ii. p. 137. * ' En une chambre pres la Blanche Chambre' ; Eot. Pari. ii. 310. 430 Constitutional History, [chap. House of cloister within his palace of Westminster But these are excep- tional cases, and it is believed that, as a rule, the ordinary place for the session of the lords was the Chamber of Parliament or White Chamber, lying immediately south of the Painted Cham- ber ; and that the Chapterhouse or Refectory was the recognised chamber of the commons. Historical 749. At how early a date the two houses separated and as to the began to deliberate apart is a question of considerable antiqua- of the two rian interest, and was once debated with some acrimony'^. The point looked at in the fuller light of published records becomes one of very small importance. If the proper incorporation of the three estates in parliament be allowed, as it now is, to date from the year 1295, the possible practice of earlier years be- comes unimportant by way of precedent. That the baronage, whether assembled in parliament or not, could hold sessions apart from the clergy or the commons, is a fact as clear as that the clergy could and did meet apart from the baronage. On the analogy of the clerical assemblies, it might seem a natural con- clusion that the commons, from the year 1295, could meet and deliberate alone. But on the other hand the barons had their own assembly as a great council, and the clergy theirs in synod and convocation; the representatives of the commons had no such collective organisation ; they never met but as an estate of parliament. The first place in which the parliament records distinctly notice a separate session is in the rolls of 1332 ^, when the prelates, the lords temporal, and the knights of the shire are described as deliberating apart. The deliberations may have * Rot. Pari. V. 182. ^ See Prynne, Register, i. 233 ; Coke, 4 Inst. p. 4. ^ The notices which have been given above (vol. ii. pp. 376, 377) may be recapitulated here: in September 1331 the prelates, earls, barons, and other grantz ' conseilerent pur le mielz, uniement et chescun par lui several- ment' ; Rot. Pari. ii. 60. In March 1332 the prelates and proctors of the clergy debated by themselves, the earls, barons, and other grantz by them- selves; ib. p. 64. In September 1332 the prelates by themselves, the earls, barons, and other grantz by themselves, and the knights of the shires by themselves; ib, p. 66: so also in December 1332; p. 67. In January 1333 a separate section of the lords, probably as the council, sat apart ; the rest of the lords, and the proctors by themselves ; the knights, citizens, and burgesses by themselves ; ib. p. 69. In 1339, and ever after, the division into two houses seems clear enough. XX.] Division of the Houses. taken place in one chamber, m Westminster Hall possibly, but Probability , , , , / •, -, . -, ^ . that such it is more probable that each body retired to a room of its own. division Bxistccl The fact that money was voted by the diflFerent estates in dif- from the ferent proportions might suggest even a wider distribution ; corporation possibly the prelates and clergy, the lords temporal, the knights Commons. of the shire, and the borough members, may have sat in four companies and in four chambers. In 1341 the 'grantz' and the commons seem to have definitely assorted themselves in two chambers^; and in 1352 the chapterhouse is regarded as the chamber of the commons The practice, then, of scarcely forty years is all that is touched by the question before us ; and in the absence of any authoritative evidence from documents, together with the proved woi-thlessness of the modus tenendi jyarliamentum, on which alone the doctrine of the ancient union of the two houses seems to rest, the theory of Prynne that the two never deliberated together is prima facie as tenable as that of Coke that they did. If, to go a step further, we give due weight to the influence of custom, and consider that, as soon as we have any evidence at all, we find the estates deliberating apart, we shall incline to the belief that they had done so from the beginning ; or, in other words, that it was only in the presence of the king, or to hear a message from him, or when called together for special conferences, that the lords and commons ever formed parts of one deliberative assembly. Their arrangement in the two existing and historical chambers is another point, but the further we look back, more traces of division than of union seem to be discoverable. 750, Of the numbers and special qualifications of the persons Numbers T 1 • • . ^ of the two who composed what may by a slight anticipation be called the Houses. house of lords, not much has now to be added to what has been said in preceding chapters: and that little concerns points of dignity and precedence more than matters of constitutional ^ • Ad il chargez et priez en chargeante manere les ditz grantz et autres de la commune, qu'ils se treissent ensemble, et s'avisent entre eux ; c'est assaver les grantz de par eux, et les chivalers des counteez, citeyns et burgeys de par eux' ; Rot. Pari, ii, 127. ^ See above, p. 429, note 2, 43^ CoTistitutional History. [chap. B^nks importance. The house consisted of the lords spiritual and tem- Lords^ ^ poral, the 'prelatz et autres grantz/ and, more circumstantially, contained the prince of Wales, the archbishops and bishops, the abbots and priors of certain monasteries, the dukes, marquesses, earls, viscounts, and barons. Of these titles some are much more ancient than others, and all have some slight political signi- ficance. They may be taken in the order given. The prince The hi ^ i. of John of Graunt. In 1362 Lionel was made duke of Clarence. In 1385 the surviving sons of Edward III, Thomas of Wood- stock and Edmund of Langley, were made dukes of Gloucester, and York ; in 1386 Kobert de Yere was created duke of Ireland; and in 1397 E-ichard II created the dukedoms of Hereford, Norfolk, Surrey, Exeter and Aumale or Albemarle. • Of these, Norfolk and Exeter reappear in the later Plantagenet history. Under Henry YI Somerset was made a duchy for the Beauforts, Buckingham for the Stafford s, and "Warwick for Henry Beau- champ, the king's fellow pupil. In all these cases, except those of Clarence, Ireland, and Aumale, the title is taken either from a county of England or a county town ; of the exceptions the island of Ireland and the honour of Aumale were distinctly territorial lordships ; and the title of Clarence, obscure as it is, bore some Their terri- reference to the ancient honour of Clare All of them may be torial desig- nations, termed provincial or territorial designations. The forms of the investiture were not always alike, but it became the rule for a duke to be created by the girding on of the sword, the bestowal of a golden rod, and the imposition of a cap of maintenance and Investiture circlet of gold ^. The duke generally received a pension of forty and creation • i • i i money. pounds per annum on nis promotion, which was known as creation money ^. The dignity of marquess was of somewhat later growth and less freely bestowed. The title derived from the old imperial office of markgrave, 'comes marchensis,' or count of the marches, had belonged to several foreigners who were brought into ^ The honour of Aunifile consisted of the baronies accumulated by that branch of the house of Champagne which bore the title of count, or earl, of Aumale, and transmitted the title and honour through females until the middle of the fourteenth century. The chief possession of the house was the lordship of Holderness. The title of Clarence is sometimes, but fanci- fully and without any real authority, connected with Chiarenza in the Morea. See Finlay's Greece, iv. 192. 2 John of Gaunt was made duke of Aquitaine ' per appositionem cappae suo capiti ac traditionem virgae aureae' ; Lords' Fifth Keport, p. 1 10: so also the dukes made in 1397, ib. p. 118; and the duchess of Norfolk, p. 119; cf. p. 171. The dukes of Warwick and Buckingham, in T443, have the cap and the gold circlet also, p. 224. * See below, chapter xxi ; Rot. Pari. iv. 308. XX.] Ranks of the Peerage, 435 relation witli England in the twelfth century; the duke of Creation of marquesses, Brabant was marquess of Antwerp, and the count of ^laurienne marquess of Italy ^ ; but in France the title w^as not commonly used until the seventeenth century, and it is possible that it came to England direct from Germany. Edward III had made the margrave of Jiilich earl of Cambridge ; Sigismund, the brother of Anne of Bohemia, queen of Richard II, was mar- grave of Brandenburg, and her elder brother Wenzel had been made a margrave of the empire by his father Charles IV. Eichard made Robert de Vere marquess of Dublin^, and, undeterred by the fate of the first who bore the title, he, in 1397, created John Beaufort marquess of Dorset. Having in 1399 shared the degradation of the dukes created by Richard on the same occa- sion, John Beaufort, in 1402, declined to be restored to his marquessate on the ground that it was a strange title, un- familiar and unwelcome to English ears^; it was however revived in favour of his son Edmund, who was made marquess of Dorset in 1443 ; "William de la Pole was made marquess of Suffolk in 1444 j Edward IV made John Neville marquess of Montague, and gave the marquessate of Dorset to his stepson. The title was not legally and formally given, as it might have been, to the lords marchers or to the earl of March ; and the fact that, within a century of its introduction into England, it was used in so unmeaning a designation as the marquess of Montague, shows that it had lost all traces of its original application. The mar- investiture quesses were invested with the golden circlet and the girding of money, the sword, and from the year 1470 by the gift of the cap of maintenance. The creation money was thirty-five pounds The ancient dignity of the earl has in former chapters been The earls, traced throughout its history. In very few instances was the * Selden, Titles of Honour, pp. 758-762. The title of marchio is given by William of Malmesbury to Brian Fitz Count, lord of Wallingford : it was often used loosely for count or duke. ^ See the charter of creation, Rot, Pari. iii. 210; Lords' Fifth Report, p. 78 ; and the investiture ' per gladii cincturam et circuli aurei suo capiti impositionem,' ib. p. 77 ; John Beaufort was made marquess of Dorset 'per cincturam gladii' simply, ib. p. 117; Edmund Beaufort in 1443 has the circlet, ib. p. 241 ; and the marquess of SufiFolk likewise, p. 251. Montague and Dorset have the cap and sword, ib. pp. 378, 403. 3 Rot. Pari. iii. 488. * Ib. v. 308. F f 2 4^6 Constitutional History. [chap. title annexed to a simple town or castle, except in tlie case of the earldom of Arundel, which probably represents an earldom of the county of Sussex, of which the earl of Arundel received Their terri- the third penny : the earl of Warenne in the same way was nSn^^^^^ properly earl of Surrey, although he took his title from his Norman lordship ; and the earls of Pembroke, of the house of Clare, are frequently called earls of Striguil ; otherwise the title throughout medieval history belongs to a county or the county town, although it involved no local authority. The earl- dom of March, which was the only exception to this rule, was endowed with a pension from the issues of the counties of Stafford and Salop, the latter of which was a march or border Creation county. The earl's creation money, twenty pounds, was a sub- Foi?n"^of stitute for the third penny of the county, of which little is heard S^sSture.*^ after the thirteenth century ; and the retention of this payment probably suggested the bestowal of creation money on those who were raised to the newer ranks of peerage^. The earl was created either by charter, or by patent, or by formal act in parlia- ment, and was invested as of old by the girding of the sword ^. The cap and coronet were late additions. The The rank of viscount was a novelty in the fifteenth century ; the fii'st English peer who bore the title being the viscount of Beaumont, John, a lineal descendant of that Henry of Beaumont who took so prominent a part in the history of Edward II ^. It was given him probably, as was the French viscounty which he likewise held, as the representative of the ancient vis- counts of Beaumont in Maine, with the intention of securing to him a precedence over the older barons ; the lord Bourchier, the next created viscount, was likewise earl of Eu in Normandy; ^ See grants of the third penny in the Lords' Fifth Report, pp. 1-17; letters patent for the earldom of Carlisle, p. 18 ; the charter for the earldom of Winchester, p. 18 ; of March, p. 21 ; Huntingdon, p. 29; Northampton, p. 30; the last two, by assent of parliament. See above, vol. ii. p. 615. The third penny is mentioned in the grant of the Devonshire earldom to Hugh Courtenay in 1336, ib. p. 27; the creation money by Madox, Bar. Angl. p. 141 ; Rot, Pari. v. 308. ^ See for instance the charter of creation of Michael de la Pole, earl of Suffolk, Lords' Fifth Report, p. 69. 2 Lords' Fifth Report, p. 235 ; Madox, Baronia, p. 143. XX.] Banks of the Peerage. 437 John Talbot was made viscount de I'lsle in 1451, and the lord Berkeley was created viscount in 1481. The title has little or no meaning in English history, and in its Latin form was and is still used as the designation of the sheriffs of town or county. The dignity and title of barony did not during the latter The barons, middle ages undergo any change, further than was caused by the superposition of the new dignities of duke, marquess and viscount over it. The method of creation was to some extent affected by the same influences. The year 1295 has been marked as the point of time from which the regularity of the baronial summons is held to involve the creation of an hereditary dignity, and so to distinguish the ancient qualification of barony by tenure from that of barony by writ ^ As the earls and dukes of the reign of Creations by Edward III were created by patent or charter, and generally in parliament, the example was at some distance of time followed in the case of barons. In 1387 E-ichard II created John Beauchamp of Holt a baron by patent and in 1432 John Cornwall was created baron of Fanhope in parliament, his creation being sub- sequently confirmed by patent^. From the twenty-fourth year of Henry VI barons were generally made by patent*. The import- Importance ance of the distinction seems to lie in the fact that the patent creation by of creation defined the line in which the hereditary peerage was to run, generally to the heirs male of the person promoted, whilst the barony created by ancient writ of summons may descend to heiresses. The political intention of the change has been * Vol. ii. pp. 1 81-184. ^ Lords' Fifth Report, p. 81 ; *in unum parium ac baronum regni.' There was no settled sum of creation money for a baron, nor any distinct form of investiture unless by robes ; see Elsynge, Parliament, p. 36. ^ Lords' Fifth Report, p. 213: Ralph Boteler is made baron of Sudeley by patent in 1441 ; ib. p. 239 : the lord L'Isle is made by charter in 1444; ib. p. 245: Beauchamp of Powick by patent; ib. p. 256: so also Rivers, p. 263. * In the 2 7 Henry VI Henry Bromflete was created a baron by his writ of summons, which contained the words ' volumus enim vos et heredes vestros masculos de corpore vestro legitime exeuntes barones de Vescy existere'; Prynne Reg. i. 229. In 1444 'by one of the most extraordinary charters on record ' the barony of L'Isle of Kingston L'Isle was limited to the person created ' and to his heirs and assigns for ever being tenants of the manor of Kingston L'Isle'; Nicolas, Hist. Peerage (ed. Courthope), p. 291. Constitutional Ristory. [chap. Theories as differently interpreted : it has been regarded, on the one hand, as to the creation of an attempt to establish the riofht of peerao^e on more than a mere barons by ... o i & patent. prescriptive basis, and to control the royal power of continuing or discontinuing the issue of the summons to the heirs of former recipients, a practice tending to make the balance of the house of lords depend on the court party of the moment; on the other hand, it has been regarded as a restraint or limitation of the peerage to a direct line of succession^. The two ideas are not incompatible, and the result has certainly been a limitation on the descent of peer- ages ; but it may be questioned whether the advisers of Henry VI, who during the period of the change were playing a very haphazard game, had any deep political object in view. After this, as before, the older baronies descended to heiresses who, although they could not take their places in the assembly of the estates, conveyed to their husbands a presumptive right to receive a summons. Of the countless examples of this practice, which applied anciently to the earldoms also, it may be enough to mention Sir John Oldcastle, who as the husband of the heiress of Cobham was summoned as baron of Cobham ; Kalph of Month ermer, husband of the widowed Johanna of Acre, countess of Gloucester, sat as earl of Gloucester during the minority of his stepson ; Kichard Beauchamp gained the earldom of Warwick as husband of the heiress. The lords Molines, Willoughby, Fitz Walter, and many others whose names occur somewhat confusingly during the wars of the Koses, reached the peerage in this way, and although some royal act of summons, or creation, or both, * was necessary to complete their status, the usage was not mate- rially broken down until the system of creation with limitation to heirs male was established. The descent of the i)eerage through females, and the creation of new titles by patent, alike helped to put an end to the practice of calling the peer by his family name. Even at the accession of Henry VII very few of the ancient baronies by writ were held by the direct representatives in the male line of the barons so summoned by Edward I. No lady of any rank whatever was ever summoned either in person or by proxy to a full and proper parliament. There are ^ See Nicolas, Historic Peerage (ed. Courthope), p. xlii. Ranks of the Peerage. 439 instances of countesses, baronesses, and abbesses being sum- xo ladies in nioned to send proxies or to furnish their military service, but P'^^^^^®"*- not to attend parliament as peeresses \ The nearest approach to such a summons is that of four abbesses, who in 1306 were cited to the great council held to grant an aid on the knighting of the prince of "Wales. Although instances occur in which a person not qualified Question of , . . , -nil life peerages, to receive a summons as judge or councillor has been sum- moned to parliament and yet has not transmitted a hereditary peerage to his descendants, it is not probable that the crown ever contemplated the creation, by such single summons, of a barony for life only-. The higher ranks of the peerage Dukes and were occasionally granted for life; such was the first duke- ^ dom of Lancaster, the creation of the duchess of Norfolk in 1397, of Thomas Beaufort duke of Exeter in 141 6, of Robert de Vere as marquess of Dublin and duke of Ireland ; John of Lancaster was made earl of Kendal and duke of Bedford, and Humfrey earl of Pembroke and duke of Gloucester, in the first instance for life^; and in 1377 Guichard D'angie was made earl of Huntingdon for life*. No baron however was ever created for life only w^ithout a provision as to the remainder, or ^ See above, vol. ii. p. 409. The summonses to furnish military service are numerous and will be found on the parliamentary writs passim. The abbesses summoned in 1306 were those of Barking, Wilton, Winchester, and Shaftesbur}^, The countesses summoned in 1361 were those who had estates in Ireland; Lords' ileport, iv. 628, 630, ^ In the long lists of barons summoned to parliament between 1295 and 1485 occur a number of names of persons summoned either once only, or iiTegularly, not hereditarily, although in writs worded exactly like those of the hereditary peers. On these Prynne founds an argument that they were the mere nominees of the king (Keg. i. 232, 233) and combats Coke's doctrine of the hereditary right to the writ. On careful examination Prynne's list shrinks into very small proportions : some of the names are those of judges whose writs have been confusedly mixed \Wth those of the barons ; some occur only in lists of summons to councils which were not proper parliaments. In most of the other cases the cessation of the sum- mons is explained by the particular family history ; for example, the son is a minor at the time of his father's death, and dies or is forgotten before he comes of age. In others, nothing is known of the later family history, and it must be supposed to have become extinpt. The ingenious distinc- tion drawn by Elsynge between barons and peers, the latter including bannerets and life peers, has no foundation. ^ Lords' Fifth Report, pp. 171, 172. * Ibid. p. 62. 440 Constitutional History. [chap. Sons sum- right of succession after his death \ The cade of a son sum- cfuring their moned to the house of lords as a peer in his father's lifetime is fathers life. understood as the creation of a new peerage : the first re- corded instance of this practice occurs in 1482, when the heir of the earl of Arundel was summoned in his father's barony of Maltravers. Question as It may be observed finally that, although all the ' grantz ' of baron. summoned in the class of barons were no doubt peers and must have had a right to the title of ' baron ' in both the ancient and the modern sense, that title is given in a special way to some few among them^, the more general denomination being 'seigneur,' * sieur/ or ' chivaler ^! The exceptions seem to be the barons of Staff'ord and Greystoke, who share the designation with the non-parliamentary barons of the two great palatinates of Chester and Durham. This fact has never been explained, and it is the more curious as the title of ' lord ' does not in England imply a dignity created by the crown, but is simply a descriptive or Dignity of honorary appendage to some other dignity Another curious point, which more directly affects the house of lords, is the dignity of banneret, which has been sometimes regarded as a rank of peerage inferior to a barony °. This however was not ^ Nicolas, Hist. Peerage, pp. xlv, xlvi. In two cases, the barony of Hay in 1606, and of Reede in 1644, the creation was for life, but it was pro- vided that the bearers of the title should not sit in parliament. One baroness, lady Belasyse in 1674, was created for life ; similar creations of higher ranks of the peerage, duchesses, &c., were not uncommon. ^ Prynne, Peg. i. 220 sq. ; Lords' Third Report, ii. 230 : so the title of Dominus is said to be given only to Mowbray dominus de Axholm, and Talbot dominus de Fumival, until the reign of Henry VI ; ibid. ^ Madox explains the usage of styling a baron ' chivaler' in the sum- mons to parliament as implying three things, (i) that he was of aetas legitima or aetas tenendi terram, (2) that he was 'extra custodiam,' and (3) that he had taken knighthood ; Baronia Anglicana, p. 61. * The puerile dispute about giving the title of lord bishop to colonial and suffragan bishops could not have arisen had this been kept in mind. The title of lord belongs to all bishops in all churches, and not merely to those who possess a seat in the English house of lords : nor has it anything to do with a royal prerogative of conferring titles, not being a recognised grade of peerage. ^ Prynne, Reg. ii. 117, 118; Madox, Baron. Angl. p. 160; Lords' Report, i. 329, 340, 350, 354 ; Selden, Titles of Honour, pp. 737, 790, John Cobham, made a banneret by Edward III had 100 marks allowance to maintain his state, 42 Edw. Ill, Madox, Bar. Angl. p. 161 ; his father XX.] Bannerets. 441 the case ; the rank of banneret was simply a degree of knight- Banneret hood, superior to that of knight bachelor, but conveying no right of peerage, of peerage, although of course many peers were in virtue of their degree of knighthood bannerets also. On this point much dis- cussion has arisen ; but it is one capable of summary proof; in very many cases barons were also bannerets ; but the existence of a single English banneret who is never summoned to parlia- ment would be enough to prove that the dignity conferred no peerage. Sir John Coupland who took king David prisoner at Neville's Cross was made a banneret by Edward III, but never sat in parliament^. There are many such instances throughout the whole period during which bannerets are heard of at all : but as the title of baron is, as we have just seen, very sparingly given to the peers, that of banneret or chivaler is frequently bestowed on those who were peers as welP. At the head of the barons of England, taking a sort of clerical The priors of the great precedence, were the English chiefs of the military orders, the orders. Temple and the Hospital. Of these the Master of the Temple and grandfather had sat in parliament as barons, and their barony descended to his daughter. Geoffrey le Scrope in 1340 had a settlement of 200 marks per annum, on himself and his heirs to maintain their estate of banneret, but he died immediately after, and his son was not summoned to parliament until 1350; Lords' Report, i. 354, 355, In this case an hereditary ban- neretcy must have been contemplated. In 1344 and 1372 bannerets are mentioned on the rolls as present in parliament ; Rot. Pari. ii. 147, 309. ^ Coke, 4th Inst. p. 5 ; Camden, Britannia (ed. 1600), pp. 138. ^ This seems to be very conclusive ; but Hallam thought the point still unsettled ; Middle Ages, iii. p. 1 26. As however we have the complete lists of summons to identify the hereditary peers, there need really be no further question. The writ of 1378 in which it is stated that John Camoys, being a banneret, could not be elected as knight of the shire for Surrey is ex- plained by the fact that he was also a baron ; Prynne, Reg. ii. 117, 118. According to Selden, Titles of Honour, pp. 790-792, a banneret was a person knighted on the field of battle when the king is present or the royal standard displayed ; the pennon of a banneret was cut square into the shape of a bannner, whence the name. Of the bannerets in arms in 1322 (Pari. Writs, II. ii. 196 sq.) Sir Warin de I'lsle, Sir Robert de Lidle, Sir Gilbert de Aton, Sir Thomas de Vere, were not barons of parliament. In the "Wardrobe Accounts of Edward I, most of the persons receiving pay as bannerets were also barons receiving special summons to parliament ; but Sir John Bottetourt who is called a banneret in 1300 is not summoned to parliament until 1305 ; and among the others are Sir Richard Si ward, Sir Simon Fraser, Amanenus de la Bret, Arnold de Gaveston, and Elie de Cavapenna, all of them aliens. It cannot be denied that the subject has some puzzling aspects, but the authority of Selden, Prynne, and the Lords* Report, will probably be sufficient for most investigators. Constitutional History, [chap. disappears in 1308, at the suppression of the order ; the Prior of S. John's, Clerkenwell, the Master of the Hospitallers of Eng- land, took his due place in parliament down to the date of the dissolution of monasteries ; although he occupied the seat of a lord temporal, he was summoned among the lords spiritual \ Number 752. The number of the temporal lords varied in almost of lords . ^ temporal, every parliament ; and, from time to time, we have traced the political or other causes of this fluctuation : during the reign of Henry IV the number never exceeded fifty ; under Henry V it only once reached forty; under Henry VI, beginning with twenty- three in 1422, it reached fifty-five in 1450 ; and under Edward IV the maximum was fifty in the year 1466. The variations were caused by extinction, abeyances, minorities and attainders on the one hand, by new creations and restorations on the other. In some cases we may conjecture that the omission of a name from the list of summonses was caused by the neglect of its bearer to Exemptions obey former citations. There are many instances of barons beine: fromattend- , „ „ t t • -, ance. relieved from the duty of attending parliament as a privilege due to old age or high favour ^ ; without some such licence or other good excuse, and the mission of a proxy, the lords who absented themselves from parliament were liable to a heavy Fines for amercement such as was enforced in the parliament of 1454, when non -attend- , ^ ^ ance. archbishops and dukes were subjected to a fine of £100; earls Resignation and bishops of loo marks; abbots and barons of £40^. The fact o peerage. ^1^^^^ formal renunciation of the dignity of peerage, on the ground of a want of baronial tenure or other, may well be doubted. In one instance we find a duke, Greorge Neville, of Bedford, degraded by act of parliament as not having sufficient property to main- tain his dignity^; Lewis of Bruges, created earl of Winchester by Edward IV, resigned his patent to Henry VII "^i both these are exceptional cases. Henry de Pinkeni, a baron of 1299 and 1301, sold his barony in the latter year to the king, and it was thus ^ Men. Ang. vi. 799 ; the Master of the Gilbertines, or order of Sem- pringham, ceased to be summoned in 1332. The prior of Clerkenwell sat for the last tune in 1536; but was allowed in 1539 to appoint a proxy. He also sat under Philip and Mary. ^ See above, p. 439 note 2. ^ See Prynne, 4th Inst. pp. 33-37. * Eot. Pari. V. 248. ^ Lords' Fifth Keport, p. 409 ; Rot. Pari. vi. 173. ^ Lords' Fifth Pteport, p. 392. XX.] The Lords Spiritual, 443 extinguislied ; the earls of Gloucester, Norfolk and Hereford likewise made over their estates and dignities to Edward I in order to obtain a resettlement ; and in the case of Norfolk the king took the opportunity of excluding the presumptive heir\ But such resignations and resettlements do not amount to a resignation of a right which from the very first was as precious as it was burdensome. 753. The number, degrees and dignities of the spiritual Xumber lords require less notice. The two archbishops and the eighteen permanent, bishops formed the most permanent element in the house of lords : when a see was vacant, the guardian of the spiritualities was summoned in the place of the bishop, and showed by his compliance with the writ that the seat of the bishop did not depend on the possession of a temporal barony, as was the case with that of an abbot or prior ^. With respect to this, the second class of lords spiritual, the case was different. The Diminution . T, 1 ^ f 1 1 1 f^Ji the num abbots and priors, like the smaller boroughs, telt the burden of ber of abbot attendance to be a severe strain on their resources ; and they ^" were satisfied with their position in the spiritual assemblies of their provinces. Hence their attempts, by proving themselves not to be tenants in barony under the crown, to relieve them- selves from the burden of peerage. Of these deeds of renun- ciation many are still extant. In 1 3 1 8 the abbot of S. J ames's, Northampton, in 1325 the prior of Bridlington, in 1341 the abbot of S. Augustine's, Bristol, in 1350 the abbot of Osney, in 1 35 1 the abbot of Leicester, declared that they held their estates by no tenure that involved the duty of parliamentary attend- ance, and they were accordingly relieved. Osney escaped be- cause it was not a royal foundation, Beaulieu because it held in ^ See above, vol. ii. p. 154. ^ The house of lords in 1692 resolved ' that bishops are only lords of par- liament but not peers, for they are not of trial by nobility ' ; E. May, Treatise on Parliament, p. 15. Whatever force such a resolution may legally have, it is of no historical authority ; for it is certain that from the beginning of the use of the term ' peers ' the bishops were recognised as peers, and that it was by one of them, archbishop Stratford, that the right of trial was chiefly won ; see above, vol. iii. p. 387-390. The doctrine of ennobled blood, by which this theory has been supported is historically a mere absurdity ; it is impossible to regard the blood as ennobled by law, when the nobility of the blood is restricted to the bearer of the title and does not extend even to his younger children. 444 Constitutional History. [chap. Gradual frankalmoign, Thornton because it did not hold in chief or by diminution of the num-^ barony. This process had probably been going on for some time summoned before it is heard of in record. To take, however, only the state ment. of affairs from the reign of Edward I downwards ; we find sum- moned to the normal parliament of 1295 sixty-seven abbots and priors, besides the Masters of the Temple, the Hospital, and the Gilbertines; in 1300 seventy-two abbots and priors; in 1301 eighty; in 1302 forty-four; in 1305 seventy-five; and in 1307 forty-eight abbots. >pnder Edward II, down to 1 3 1 9, the number varies between forty and sixty ; but from that year the number rapidly declines. Under Edward III, with the exception of the year 1332, when fifty-eight were summoned, the average gradually The normal settles down to twenty-seven, which thenceforward becomes the number. normal number^. The year 1341 seems to be the point from which the permanent diminution dates ^. A close examination of the list summoned to the last parliament of Henry VI shows that all the Cistercian, Cluniac and Praemonstratensian houses had been relieved from a duty which the extent of their foreign connexions must have made somewhat dangerous ; the Master of the Gil- bertines is no longer summoned ; only two houses of Augus- tinian canons, Waltham and Cirencester, appear in the list. Of the rest, twenty-three are Benedictine abbeys of royal or reputed royal foundation ; one cathedral priory, that of Coventry, still sends its prior ; and the prior of Clerkenwell completes the list ^ Many of these were mitred abbots ; that is, abbots who had * The numbers may be verified by reference to the Appendix of the Lords' Report, or to Parry's Parliaments of England under the several dates. ^ Edward III by letters dated Oct. 20, 1 341, and again, June 7, 1347, re- lieved the abbot of Osney , that house being of the foundation of Robert D'Oilli and not of one of the king's ancestors ; Rawlinson, Charters, Bibl. Bodl. ; Lords' Report, iv. 554. The petition of the abbot of S. James', Northampton, in 1 3 19, is in Pari. Writs, II. i. 199 : the licence for S. Augustine's, Bristol is in the Lords' Report, iv. 528: and that of the abbot of Thornton, ib. p. 529; both in 1341 ; that of the abbot of Beaulieu, the same year, ib. p. 533 ; Crowland, Spalding, p. 535 ; Thorney, p. 579. See also Prynne, Reg. i. pp. 141-144; Madox, Baronia Angl. pp. 110 sq. ; where it is re- marked that other onerous services besides parliamentary attendance were escaped by proving that the lands were held in frankalmoign. ^ The list of parliamentary abbots and priors summoned in 1483 is this : Peterborough, Colchester, S. Edmund's, Abingdon, Waltham, Shrewsbury, Cirencester, Gloucester, Westminster, S. Alban's, Bardney, Selby, S. Bene- dict of Hulme, Thorney, Evesham, Ramsey, Hyde, Glastonbury, Malmes- XX.] The Lords Spiritual, 445 received from the pope the right of wearing the mitre and other Mitred vestments proper to the episcopal office ; but the mitred and parliamentary abbeys were not identical ; and some priors who were mitred were not summoned to parliament. The abbot of Summons of Tavistock, who in the reign of Henry VI had received permis- Tavistock, sion to apply to the pope for the mitre, was in the fifth year of Henry VIII made a spiritual lord of parliament by letters patent. This is said to have been a unique exercise of pre- rogative power, but is scarcely to be disting-uished in point of principle from the creation of a new temporal barony \ The bishops whose sees were created later in the reign had their seats virtually secured by the liberal terms of the legislation which empowered the king to erect the new sees. These pre- lates had no baronies and cannot be said to have sat in the right of temporal lordships. 754. The justices and other councillors summoned to assist Judges and the parliament completed, with the clerks and other officers, the personnel of the Upper Chamber of parliament. Of these the judges, whatever may have been the intention with which Edward I added them to the parliament, seem to have taken a more or less prominent part in the public business of the house, but not to have succeeded in obtaining recognition as peers, or the right of voting. They were not regular or essential members of the house ; their summons did not imply an equality or simi- larity of functions with that of the peers ; they were summoned in varying numbers, and they had no power to appear by proxy ^. Yet they had very considerable functions as counsellors ; in assist- ing all legislation that proceeded primarily from the king, and in bury, Crowland, Battle, Winchcomb, Reading, S. Augustine's, S. Mary's York, P. Coventry, P, S. John of Jerusalem. Lords' Report, App. pp. 946, 985. Reyner, Apostolatus Benedictinorum, p. 212, makes twenty-four, adding Tavistock and omitting the Augustinian abbots and the two priors ; and adds a list of sixteen, who, although they were not summoned to parliament were counted among the barons. In 1332 Edward III sum- moned twenty-eight heads of houses, to whom ' non solebat scribi in aliis parliamentis ' ; Lords' Report, p. 409. See also Prynne, Reg. i. 108 sq., 141 sq., 147. ^ Monast. Angl. iv. 503 ; Coke, 4th Inst. p. 45 ; Prynne, 4th Inst. p. 28 ; Register, i. 145. 2 See Prynne, Reg. i. p. 379; Coke, 4th Inst. p. 4; above, vol. ii. pp. 191, 259. 44^ Constitutional History. [chap. Punctions of formulatino' tlie statutes which proceeded from the petitions of the judges , • i i • i • • • in the house the subject; they were ready to give their opinions on all legal and constitutional questions that came before the parliament; they contributed an important quota to the bodies of receivers and triers of petitions ; and on some occasions they may have exercised a right of voting^. In our survey of medieval history they have appeared principally as giving or refusing opinions on constitutional procedure ; but on certain important occasions one of the chief justices has acted as spokesman for the whole parliament. "Whatever was the qualification of Sir "William Trussell, who as proctor of the parliament announced the depo- sition of Edward II, it was a chief justice of the Common Pleas, Sir William Thirning, who declared that Kichard II had for- feited his right to the crown. Thirning also opened the parlia- ment of 1 40 1 instead of the chancellor 2. Clerical 755. The position of the clerical proctors summoned under assembly in . . parliament, the prsemunieiites clause has been sometimes regarded as analo- gous to that of the summoned judges and councillors^. For this supposition there does not seem to be any warrant. They were originally summoned to complete the representation of the spiritual estate, with an especial view to the taxation of spiritual property * ; and in that summons they had standing ground from which they might have secured a permanent position in the legislature. By adhering to their ecclesiastical organisation in the convocations they lost their opportunity, and almost as soon * See Erskine May, Treatise on Parliament, p. 234. In tlie decision on the claim of the duke of Norfolk in 1425 the advice of the judges is men- tioned co-ordinately with that of the lords and commons ; Rot. Pari. iv. 274. ^ See above, p. 38. ^ Coke. 4th Inst. p. 4. * In the proxy given by the clerical estate in parliament to Sir Thomas Percy in 1397, they describe themselves thus : ' Nos Thomas Cantuariensis et Eobertus Eboracensis archiepiscopi ac praelati et clerus utriusque pro- vinciae Cantuariensis et Eboracensis, jure ecclesiarum nostrarum et tem- poralium earundem habentes jus interessendi in singulis parliamentis domini nostri regis et regni Angliae pro tempore celebrandis, necnon tractandi et expediendi in eisdem, quantum ad singula in instanti parliamento pro statu et honore domini nostri regis, necnon regaliae suae, ac quiete, pace et tranquillitate regni judicialiter justificanda, venerabili viro domino Thomae de Percy militi nostram plenarie committimus potestatem ita ut singula per ipsum facta in praemissis perpetuis temporibus habeantur'; Rot. Pari, iii, 348, 349. XX.] Numbers of the Commons. 447 as it was offered them, forfeited their chance of becoming an Continuance of the 'prae- active part of parliament. Although, therefore, the kmgs con- mumentes ' tinned to summon them to all parliaments, that the pretext of their absence might not be allowed to vitiate the authority of parliamentary acts, they, after a short struggle, acquiesced in the maintenance of convocation as the taxing assembly of the church. Hence, on the occasions on which the clerical proctors Clergy in parliament. are known to have attended, their action is msigniticant, and those occasions are very few. We are not told where room was found for their sessions ; it would most probably be in some chamber of the abbey, and, if we may argue from the history of Haxey's case, in 1397, in close propinquity to the house of commons. In the year 1547 the lower house of convocation petitioned the archbishop that, ' according to the custom of this realm and the tenour of the king's writ,' ' the clergy of the lower house of convocation may be adjoined and associate with the lower house of parliament.' We have here, possibly, a trace of a long forgotten usage \ 756. The questions affectinp^ the personal composition of Numbers of 11 P 11 . . . \ T knights of the house of commons, though more interesting m themselves, the shire demand a less detailed description. They chiefly concern the number and distribution of the borough members. The knights of the shire continue unaltered in number to the close of the middle ages ; thirty-seven counties return two knights a piece ; Cheshire and Durham retain their palatine isolation, and Mon- mouth has not yet become an English shire. Monmouth ac- Later quired the right of sending two knights in 1536; Cheshire in 1543 ; and Durham in 1673 ^ The act which gave two mem- bers to Monmouthshire gave one each to the Welsh counties. The number of knights in the medieval parliaments was seventy- four. The northern counties seem to have envied the immuni- ties of Durham and Cheshire. In 131 2, 13 14, and 1327, Attempts to Northumberland, and in 1295 Westmoreland, allege the danger d.ut%f^^ of the Scottish borders as a reason for neglecting to g^nd * Burnet, Reform, ii. 47, app. p. 117 : see above, vol. ii. p. 492. Stat. 27 Hen. VI, cc. 26 and 34; 35 Hen. VIII, cc. 13, 26 ; Stat. 25 Charles II, c. 9. 44^ Constitutional History. [chap. knights ; they could not afford to pay the wages, and the knights themselves were employed elsewhere ^. Variation in The number of city and borousjh members fluctuated, but the number . ... . of borough showed a decided tendency to diminish from the reig'n of members. . . Edward I to that of Henry YI. The minimum was reached in the reign of Edward III; and the act of 1382 prevented any further decrease, and all irregularity of attendance. The largest number of parliamentary boroughs is found in the reign of Edward I, when 166 were summoned to send mem- bers; from 1382 to 1445 the number was normally ninety- nine, including London ^. The number of burgesses, including the four members for London, was just two hundred. These were very unequally distributed ; from three counties, Lanca- shire, Rutland, and Hertfordshire, no borough members were sent between the reign of Edward III and that of Edward VI. Fifteen counties sent up, during the same period, only the two representatives of their chief town^; and seven of the others contained two parliamentary boroughs each*. The remaining ^ In 1295 the sheriff of Westmoreland writes that his knights cannot possibly attend as they are bound under penalty of forfeiture to appear before the bishop of Durham and the earl Warenne at Emmotbridge two days before that fixed for the parliament; Pari. Writs i. 44. In 131 2 the sheriff of Northumberland says that the state of the border is such that the men of the county do not care to send knights or burgesses to the parlia- ment; Prynne, Reg. iii. 165; and in 1327 that they are so impoverished by the Scots that they cannot pay the wages. ^ The numbers of summoned towns are variously given, the returns being imperfect and confusing: Prynne (Reg. iii. 225) makes 170 towns in all summoned, and 161 occasionally represented. The returns in the reigns of Edward I and Edward II, the period during which the maximum of repre- sentation was reached, may be ascertained from the Parliamentary Writs ; 166 are mentioned in the former reign, 127 in the latter; but of these many towns although summoned made no return. i ^ ITie fifteen counties with their chief towns were : — Bedfordshire, Bedford ; I Buckinghamshire, Wycombe; Cambridgeshire, Cambridge; Cumberland, j Carlisle; Derbyshire, Derby; Gloucestershire, Gloucester; Huntingdon- ] sbire, Huntingdon ; Leicestershire, Leicester ; Northamptonshire, North- 1 ampton ; Northumberland, Newcastle ; Nottinghamshire, Nottingham ; I Oxfordshire, Oxford ; Warwickshire, Warwick ; Westmoreland, Appleby ; | Worcestershire, Worcester ; to which may be added Middlesex as contain- J ing London, and making sixteen in all. 1 * These are : — Essex — Colchester and Maiden ; Herefordshire — Hereford I and Leominster; Kent — Canterbury and Rochester; Lincolnshire — Lin- I coin and Grimsby ; Salop — Shrewsbury and Bridgnorth ; Staffordshire I — Stafford and Newcastle under Lyme ; Suffolk — Ipswich and Dunwich. I Borough Members, 449 twelve counties were more abundantly supplied ; Yorkshire, Berk- Distribution shire, Norfolk, and Hampshire contained each three boroughs ^ ; Samentary Surrey four; Somerset and Cornwall six each ; Devon and Dorset seven ; Sussex nine, and Wiltshire twelve ^. The Cinque Ports altogether returned sixteen members ^. After the minimum had been reached, Henry YI added eight new boroughs, four of which were in Wiltshire, and one each in Devon, Dorset, Surrey, and Warwickshire. Edward IV added or restored five The causes of this strange distribution are probably to be possible sought primarily in the amount of maritime or manufacturing theTneven industry which had made Devonshire, Dorset, Kent, Wiltshire, ^^^t^i*^^*^^*^- and Sussex the wealthiest counties of England. The distance from London was likewise an important element in the con- sideration of the boroughs themselves, many of which felt the wages of the members as a heavy tax. A third cause might be sup- posed to be the depopulation of the ancient toAvns by the Great Plague; and this doubtless did in a small degree affect the returns, but the lowest point of diminution had been reached before the visitation of the Black Death. The most influential cause of this diminution was undoubtedly the desire of the country towns to be taxed with their country neighbours, to be rated to the fifteenth with the shires and not to the tenth with the boroughs. ^ Yorkshire — York, Hull, and Scarborough ; Berkshire — Reading, Wal- lingford, and Windsor ; Norfolk — Norwich, Lynn, and Yarmouth ; Hamp- shire— Portsmouth, Southampton, and Winchester. ^ Surrey — Bletchingiy, Guildford, Eeigate, and Southwark ; Somerset — Bridgewater, Taunton, Wells, Bristol, Bath, and perhaps Ilchester ; Corn- wall— Bodmin, Launceston, Helston, Liskeavd, Lostwithiel, and Truro ; Devon — Barnstaple, Dartmouth, Exeter, Plympton, Tavistock, Totness, and Torrington (see below) ; Dorset — Bridport, Dorchester, Lyme Regis, Melcomb, Shaftesbury, Wareham, and Weymouth ; Sussex — Arundel, Bramber with Steyning, Chichester, East Grinstead, Horsham, Lewes, Midhurst, Shoreham ; Wiltshire — Bedwind, Calne, Chippenham, Cricklade, Devizes, Downton, Ludgarshall, Malmesbury, Marlborough, Salisbury, Old Sarum, and Wilton. ^ The Cinque Ports, which in 1265 were ordered to send representatives, during the reigns of Edward I and Edward II were directed to elect two barons each ; but their actual representation seems to date from 42 Ed w. Ill; see Prynne, Reg. iv, and Willis, Notitia Pari. p. 71. The eight ports were — Dover, Hastings, Sandwich, Hythe, Romney, Winchelsea, Rye, and Seaford. The first five were the original Cinque Ports. * Henry VI added Coventry, Gatton, Poole, Plymouth, Hindon, Heytes- bury, Westbury, and Wootton Basset ; Edward IV, Grantham, Ludlow, Wenlock, Stamford, and perhaps Ilchester. VOL. III. G g 450 Constitutional History. [chap. The towns avoided sending members that they might be taxed with the shires. Cases of Torrington, S. Alban's and Barn- staple. Numbers and dates. Whilst avoiding the heavier rate, they were also relieved in a perceptible degree in the matter of the members' wages. It was much cheaper for a town to pay its fifteenth and con- tribute to the pajTnent of the knights than to pay the tenth and remunerate its own burgesses. The petition of the borough of Torrington, in Devonshire, presented to Edward III in 1368, declared that the burden of the members' wages was very grievous, and prayed that the town might be relieved from the duty of representation. Although this town had been repre- sented in the parliaments of the last two reigns, the burgesses declared that, until the 24th year of Edward III, they had not been ordered to send members ; and the king having searched the rolls, allowed that no returns could be found before the 21st year. He therefore granted the prayer, and Torrington ceased to be a parliamentary borough^. S. Alban's and Barnstaple showed as little regard for truth when, in order to prove them- selves free from the demesne rights of their lords, they declared that they had sent members in the days when there were no parliaments, and, in the latter case, from the days of Athelstan But the petition of Torrington is unique ; a much simpler way of evading the duty was to disregard the sheriff's precept, and this was adopted in a large proportion of cases. In others probably the sheriff purposely omitted the smaller towns On a close examination of the returns, most of the omitted boroughs are found to have made only one or two elections, or to have returned members in only one reign. In the reign of Edward I, 166 boroughs were represented once or twice ^; of these 33 were not again summoned, and 38 more ceased until they were restored to the list in modem times j about dozen dropped out in the next two reigns : thus about eighty See Rot. Pari. ii. 459 ; Prynne, ii. 239; iv. 1 1 75, 1 1 76; 4th Inst. p. 32. There are some cases in which permission was granted, for a number of years, to dispense with attendance, but these are unimportant. ^ On the S. Alban's case see above, vol. ii. p. 222 ; Rot. Pari. i. 327 ; Hallam. Middle Ages, iii. 28; and on the Barnstaple case, Hallam, Middle Ages, iii. 32. ^ These numbers may be verified or corrected by reference to Prynne, or to Browne Willis's Notitia Parliamentaria; but, until the extant returns are all printed, a good deal of uncertainty hangs over the whole calculation. XX.] Parliamentary Clerks, 451 of Edward's boroughs continued to send members. Under Amount of Edward II ten new boroughs appear, some of which made but representa- one return. Edward III added the Cinque Ports and about six short-lived boroughs. The bulk of the borough representation was thus formed by the parliamentary boroughs in which poli- tical interest was so strong, or over which the hold of the executive was so firm, that they either would not or could not shake ofP the burden, but survived to modern times. The num- ber of these at the close of the reign of Edward IV was about 1 1 2 j two members represented each borough ; the city of Lon- don had four ^ ; these constituencies returned 226 representatives, who, with the 74 knights of the shire, composed an assembly of 300 members ^. 757. The business of parliament was recorded by clerks speci- Clerk of the • crown ' ally appointed for the purpose. Of these the clerk of the crown superintended the issue of writs and the reception of the returns; he also attested the signature of the king attached to bills when they became statutes. The clerk of the parliament registered and of the the acts of the session; his place was in the house of lords, where he sat at the central table : to this office William Ayremin was specially named and deputed by Edward II in 1 3 1 5 ^ ; but some ^ The representation of London by four members was a matter of his- torical growth or assumption : oi-iginally the writ directed the election of two citizens, but it was very common to nominate four in order to make sure that two would attend. So in 1299 four were returned, in 131 2 three, in 1320 four, and in 131 8 and 1322, three for two, in 13 19 four for three, and in 1326 six for two. In 1315, 1322, and 1324 two were returned. After several other variations, the number was permanently l aised to four by the writs from 1378 onwards; see Pari. Writs, i. 80; II, i. 78, 108, 128, &c. ; Prynne, Reg. iv. 1041 ; iii. 369 sq. ; Lords' Report, iv. 682. In the year 1483, York elected four citizens for the parliament of Edward V; Davies, York Records, p. 144; this was in compliance with the writ, which must have been unique. ^ Fortescue states the amount of parliamentary wisdom as ' plusquam trecentorum electorum virorum' ; De Laudibus, c. 18. In 1509 there were 296 members ; Hatsell, Prec. ii. 413. ^ ' Memoranda de parliamento . . . facta per Willelmum de Ayreminne clericum de cancellaria praefati regis per eundem regem ad hoc nominatum et specialiter deputatum'; Rot. Pari. i. 350. In the parliament held at Mid-Lent, 1340, the first business done was the appointment of Thomas de Drayton, to be 'clerk du Parlement'; Rot. Pari. ii. 112 : in 1347 it is ordered that petitions be delivered to him; ib. p. 202. In 1371 the clerk of the parliament reads the answers to the petitions ; Rot. Pari. ii. 304 : in 1388 he calls over the names of the receivers and triers ; iii. 228. Gg 2 and ushers. 452 Constitutional History. [chap. Clerk of the sucli official must have been employed from the earliest times : house of *^ commons, probably the chancellor was allowed to employ any clerk he chose. The clerk of the house of commons, ' the common clerk of the house/ appears in the year 1388 as a person of established j)osition : he was probably an assistant of the clerk of the par- liament, and had similar duties in the lower housed Each house had also its serjeant-at-arms, an officer whose duty it was to execute the warrants and orders of the house while in session, and its usher, or ostiarius, who kept the doors of the house and carried messages between the two assemblies. The existence of these offices is shown by occasional mention in the rolls, but the development of their functions, and all matters of constitutional importance connected with them, are of later growth. Receivers As soon as the opening speech of the chancellor was ended, petitions, the names of the receivers and triers of petitions were read by the clerk of the crown. The receivers were clerks or masters in chancery; the triers were selected by the king from the list of the lords spiritual, the lords temporal, and the justices. The triers sat in two divisions, in two smaller chambers adjoining the house of lords ^ : they could call to their assistance the chancellor, treasurer, steward, and chamberlain. Of the two committees, one examined the petitions for England, Ireland, Wales, and Scotland ; the other for those of Gascony and the foreign possessions of the crown. By them was determined the court to which the par- ticular petitions ought to be referred, and, if any required parlia- mentary hearing, the triers reported them to the parliament ^. Election of 758. The commons, havinof been directed, in the last clause .speaker. . of the opening speech, to withdraw and choose their speaker, retired as soon as the triers had been nominated, and on the ^ Rot. Pari. iii. 245 ; ' le roi . . . granta d'aider Gefirey Martjm clerk de la corona ; et granta auxint a la requests des communes d'aider John de Scardesburgh, lour commune clerk.' The ' modus tenendi parLiamentum ' makes two chief clerks of parliament and five assistants, one for each of the five grades (bishops, proctors, temporal lords, knights, and burgesses) into which that tract divides the parliament. On the later duties of the clerks see E. May, Treatise on Parliament, pp. 185 sq., 236 sq. ^ Generally the chamberlain's chamber and Marculfs chamber; Rot. Pari. iii. 323. ^ These are still appointed ; but the lords spiritual are not now nomi- nated to serve; E. May, Treatise on Parliament, p. 542. XX.] The Speaker of the Commons. 453 same or following day made their election. Although some Early cases such oflScer must have been necessary from the first, the position action of a and title of Speaker becomes settled only in 1377. The silence of records cannot be held to prove that an organised assembly like that of the commons could ever have dispensed with a re- cognised prolocutor or foreman. It can scarcely be doubted that Henry of Keighley, who in 1301 carried the petition of the par- liament of Lincoln to the king, was in some such position \ Sir "William Trussell, again, answered for the commons in the White Chamber in 1 343^ : Trussell was not a member of the house of com- mons ; he was not a baron, but apparently a counsellor and had in 1342 received a summons to council with the barons. It is j^ossible that the commons employed him as counsel, or chose as prolocutor a person external to their own body, as the clergy did in 1397 when they empowered Sir Thomas Percy to act as their proxy^, or as the two houses had done on the deposition of Edward II in 1327. Any such irregularity was, however, impossible after Regular 1377. In 1376 Peter de la Mare, a knight for Herefordshire, speakers, acted as speaker without the title ; but this is given to his suc- cessor, Thomas Hungerford, who is said ' avoir les paroles ' for the commons^; Peter de la Mare is similarly described in 1377 ; and from that date the list is complete. The speaker was chosen by the free votes of the members, but there is during the middle ages no instance in which any but a knight of the shire was elected. The first exception to this usage is found in the reign of queen Mary; in 1554 Robert Brooke, one of the members ^ See above, vol. ii, p. 151, Since the second volume of this work was published I have found that tlie letter of Edward I on Keighley's imprison- ment, which I believed to be new, was long ago published by Madox in the History of the Exchequer, p, 615. ^ ' Et puis vindrent les chivalers des countees et les communes et re- sponderent par Monsieur William Trussell en la chambre Blanche' ; Rot. Pari. ii. 136. Trussell had been an envoy from the king to the parliament in 1340, and had carried messages between them; ib. pp. 121, 122. It is stated in the Historic Peerage that he was summoned to parliament in 1342, but this is a mistake; the summons is to a great council to which ninety-six barons and counsellors were cited; Lords' Report, iv. 537, 538. He was probably son of the William Trussell who acted as proctor for the whole parliament in 1327. See Foss, Biog. Jurid. p. 678. ^ See above, p. 446. * Above, vol. ii. p. 437 ; Rot. Pari. ii. 374. 454 Constitutional History. [chap. for London, was chosen speaker, and his successor in 1555 was Clement Higham, burgess for West Looe ^ The speaker- The day after the election, or the first day of business, the presented to speaker-elect was presented to the king by the commons or some leading member of the house as their chosen ' parlour et procu- ratour.' The custom was for the speaker to protest his insuffi- ciency for so great an office, but in spite of the protest the king vouchsafed his approval. In the case of Sir John Cheyne, the speaker elected in 1399, the excuse of ill-health was accepted by the king as valid ; the clergy had in fact objected to the nomina- tion; Sir John Cheyne withdrew, and John Doreward was Excuses chosen in his place ^. This however is the only case of the kind generally . overruled, that occurred before the reign of Charles II ; although on more than one occasion, as we have seen in the cases of Peter de la Mare and Sir Thomas Thorpe, tlie choice of a speaker was in a high degree important. In 1449 Sir John Popham, the speaker- elect, excused himself on the ground of old age and infirmity, and the king admitted the excuse, but in this case there seems to have been no ulterior motive ^. Generally the excuse was a mere formality. Petition of After the royal approval had been expressed, the speaker for the free proceeded to request that his utterances mi^lit be regarded customs of ^ ^ . the House, as the utterances of the house, that no offence might be taken at his words, that if he omitted to say what he ought to say, or said what he ought not to say, he might have equitable allowance, and other like favours. We have seen in the history of Henry IV that the freedom of language which some of the speakers used on this occasion roused the jealousy of the king ; and the whole proceeding, solemn as it was, somewhat later took a settled form : the speaker simply petitioned that he might bring forward and declare all and singular the matters to be brought forward and declared by him in parliament ^ Browne Willis, Not. Pari. p. 113. ^ Rot, Pari. iii. 424. 2 Bot. Pari. V. 171. In 1413 William Stourton had to resign the speakership after he had held it for a week, on plea of illness, and John Doreward again was substituted ; ib. iv. 4, 5 : in this case there was a political difficulty ; the speaker had acted without the authority of the house. In 1437 Sir John Tyrrell resigned on the same plea, after having been speaker for two months; ib. p. 502. XX.] The Speaker. 455 in the name of the commons under the following protest : Petition that if he should have declared any matters enjoined upon him speaker, by his companions in any way otherwise than they have agreed, be it in adding or omitting, he might correct and amend the matters so declared by his aforesaid companions ; and he prayed that this protest might be entered on the roll of the parliament ^. The king, by the mouth of the chancellor, returned the equally formal reply, that the speaker should enjoy and have the benefit of such protest as the other speakers had been wont to use and enjoy in the time of the king and his noble progenitors in such parliaments. The acceptance of the speaker completed the constitution ofThechan the house of commons ; in the house of lords the chancellor sided in the generally fulfilled the duties of a prolocutor in the absence of lords, the king, and in his presence he acted as his mouthpiece : but his position was in some important respects diff'erent from that of the speaker of the commons, who, in addition to the general superintendence of business and his authority as 'procurator' ^ The following is the form given in the Rolls of 1435 and 1436 ; Hot. Pari. iv. 482, 496 : ' supplicavit quatenus omnia et singula per ipsum ex parte dictorum communiura in Parliamento praedicto proferenda sub pro- testatione posset proferre ; ut si quid de sibi injunctis omittendo vel eis addendo, aut aliter quam sibi per eosdem communes injunctum fuerit contigerit declarare, tunc ad praefatos communes resortiri, et se per eorum avisamentum et assensum corrigere posset et emendare, et omnimoda alia libertate gaudere qua aliquis hujusmodi Praelocutor ante haec tempera melius. et liberius gavisus est.' In I406 the speaker asked for leave to send for any bills that required amendment, from the lords; Rot. Pari. iii. 568. The usage given by Sir Erskine May as now and since the sixth year of Henry VIII foUowed, is for the speaker, ' In the name and on behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly that their persons [estates, dropped in 1853] and servants might be free from arrests and all molesta- tions ; that they might enjoy Liberty of speech in all their debates, may have access to her majesty's royal person whenever occasion shall reqidre, and that all their proceedings may receive from her majesty the most favourable construction' ; Treatise on Parliament, p. 65. These claims are not however all so old as the sixth of Henry VIII : the claim for access to the king appears first in the records of 1536 and 1541 ; Lords' Journals, i. 86, 167; and that for freedom from arrest is described by Elsynge as * never made but of late days' ; Ancient Method of holding Parliaments, p. 173 : it is first recorded in 34 Hen. VIII ; Hatsell, Precedents, ii. 77. ^ In 1332 we find Henry de Beaumont acting as foreman or speaker of the lords, possibly of the whole parliament ; 'les queux countes barouns et autres grantz puis revinderent et responderent touz au roi par la bouche Monsieur Henri de Beaumont ' ; Rot. Pari. ii. 64. 45^ ConsfHutional History. [chap. Discussion of matters mentioned in the opening speech. Special ex- position to the commons. and prolocutor of the house, had also to maintain order. This function, which was typified by the mace, was unquestionably attached to the speaker's office from the first, but it receives little or no illustration from medieval records ^. 759. The two houses being thus constituted, their first duty on proceeding to business was to consider the matters laid before them in the opening speech, generally in the order in which the chancellor had arranged them. Those matters took sometimes the form of questions ; they were frequently repeated by the chancellor or some officer of state, or by the speaker himself, to the commons ; the answers might either be communicated to the king by the speaker, as soon as the commons had considered them ; or they might be made the subject of a conference with the lords ; or they might be reported to the lords, and be sent up with the answers of the lords ; or they might be kept in suspense till the conclusions of the lords were known, and then be drawn up in concert with or in opposition to them. On fliis point, which was one of some importance, both opinions and practice differed ; the occasions on which those differences illustrate constitutional history have been noticed as we have proceeded. The causes of the calling of parliament were in 1381 repeated to the commons by the lord treasurer in the king's presence, and then at their request explained by the chancellor^; in 1382 the bishop of Hereford laid before lords and commons together ' in more especial man- ner' the occasions of summons^; in 1377 Richard le Scrope, steward of the household, repeated the charge to the commons in the presence of the king and bishops*; and in 1401 Sir Arnold Savage ^, when admitted as speaker, repeated to the king and lords the matter of the opening speech, ' to assure his own memory, in brief words, clearly and in accordance with its ^ See Hatsell's Precedents, ii. 230-238. The precedents there alleged begin in 1604; see also speaker Popham's speech in 1580; ib. p. 232. 2 Eot. Pari. iii. 99, 100 : in all these points it is needless to give more than a single illustration ; the practice from the reign of Edward II to that of Henry V varied so frequently that to attempt a complete classification of instances wo\ild be to give an abstract of the whole of the Kolls of parliament. 3 Rot. Pari. iii. 133. * Rot. Pari. iii. 5. 5 Rot. Pari. iii. 455. XX.] Conferences of the two Houses. 457 essence/ When the matter of the questions was thus ascertained, Joint the commons might ask for the nomination of a committee oftionsof lords to confer with them : in 1377 we have seen them naming commons- the lords whose advice they desired; in 1381 the lords insisted that the commons should report their advice to them and not they to the commons; in 1378 the lords proposed a conference by a joint committee; and in 1383 the king chose the committee.^ In 1402 Henry IV made it a matter of favour to allow the com- munication; but after his concession made, in 1407, that the money grants should be reported to him by the speaker of the commons, the royal objections, which no doubt arose from the wish to balance the two houses against one another in order to obtain larger money grants, were withdrawn. If no question arose upon the subject of the opening speech, the commons sometimes returned an address of thanks to the king for the information given them. This may have been always done, but it is only now and then mentioned in the rolls ^. 760. Although the subjects of the royal questions and of the Money conferences of the two houses would necessarily embrace all discussed matters of policy and administration on which the crown j.g_ P^'^^^^^^y* quired or allowed itself to be advised, the most frequent and most definite points discussed in them were supply and account. On these points, when the king was present, generalities alone, as a rule, were uttered ; it was only in some great strait or in contemplation of some grand design, that figures were mentioned. It would seem to have been usual for the king to send a com- missioner or two to discuss his necessities with both houses ; just as he communicated with the clerical convocations when he wanted a grant. Thus in 1308 we find Thomas of Lancaster and Hugh le Despenser carrying a message from Edward II to ^ See above, vol. ii, pp. 592, 593. ^ See Rot. Pari. iii. 486. In 1404 Sir Arnold Savage asked that the king would send certain lords to confer with the commons, and when that was granted, that certain commons might go to confer with the lords ; Rot. Pari. iii. 523. 2 In 1401 the commons (under Arnold Savage) thanked the king for the speech with which Sir William Thirning had opened parliament ; Rot. Pari, iii. 455. In 1402 there was an address a few days after the opening of the session, chiefly of gratitude ; ib. p. 487. 458 Constitutional Histori/. [chap. Financial the lords ^, in 1343 and 1344 Bartholomew Burghersh, as the laid before king's envoy, and in 1372 Guy Brian, laid the king's financial parliament, ^.^jj^jj^j^j^ i3efore the lords and commons together^. But the most perfect illustration of this proceeding is that of the year 1433, when lord Cromwell made the interesting financial state- ment from which we learn so much of the nature of the revenue^ On the 1 8th of October, 1433, Cromwell, being then treasurer, laid before the king a petition containing certain conditions on which he had undertaken the office : he explained that the royal revenue was insufficient by a sum of £35,000 for the royal ex- penditure, but as this fact could not be understood without an examination of the accounts of the exchequer, he prayed that the lords might be charged to examine the accounts and have the record enrolled, and to give diligence that provision should be made for the king's necessities ; that he himself should be au- thorised to give a preference in payment to the debts of the house- hold, the wardrobe, and necessary works ; that no grants should be made without information to be laid by the treasurer before the council, and that he should in his office of treasurer act as freely as his predecessors, receive the help of the lords, and incur no hindrance or odium in the discharge of his duties. The king granted the petition : thereupon the accounts were read before the lords : subsequently the treasurer was by advice of the lords charged to lay the state of the kingdom, in the same way, before the commons in their common house on the follow- ing day : and this was done ^ Although the occasion was ex- ceptional, the manner of proceeding was probably customary. Form of 761. The result of the conferences with the lords and with grants of . i • i f> money. the treasurer on financial questions was the grant oi money. On this point we have circumstantial documentary evidence from the very first ; both in the writs by which the king, whilst ordering the collection of the taxes, carefully explains the occa- sion of the grant and states by whom and in what proportions it is granted ; and very frequently in the ' form of grant ' the 1 See above, vol. ii. p. 319. 2 See above, vol. ii. p. 424 ; Rot. Pari. ii. 137, 157. 3 See above, pp. 117, 118. * Rot. Pari. iv. 432-439. XX.] Form of Subsidies, 459 schedule of directions for collection which the arantors have Grants ,. . . made by drawn np and presented, sometimes as a condition, sometimes the two as an appendage, to the grant. After the date at which the two together: houses began to make their grants on one plan, ceasing to vote commons their money independently, and clothing the gift in the form consent of of tenths and fifteenths, wool, tunnage and poundage, and other imposts which affected all classes alike, the money grant took a more definite form ; and from the end of the reign of Eichard II all grants were made by the commons with the advice and assent of the lords in a documentary form which may be termed an act of the parliament. Of these we have had many examples ; we know them to have been the result of a conference between the lords and commons, but, with the exception of the discussion on the poll-tax in 1377^ we have very seldom any details of debate upon them, or of the exact steps of the process by which they became law. The practice of three readings in each house. Money bills the possible speaking, suggestion of alterations and amendments, all the later etiquette of procedure on money bills, will be sought in vain in the rolls of the medieval parliaments. The practice of thrice reading the bills appears however in the journals of the two houses so early, and is from the very first parliament of Henry ATII regarded so clearly as an established rule, that it must have full credit for antiquity : it was a matter of course ^. 762. Scarcely more light is shed on the details of legislative Legislative procedure. On this point we have already concluded that both * the king and the several members of both houses and the houses themselves had the right of initiation^ : Edward III of his own good will proposed to remedy the evils of purveyance ^ ; the lords proposed the legislation by which peers are entitled to be * See above, vol. ii. p. 437. 2 In the first parliament of Henry YIII, on the 23rd day of the session 'adducta est a domo inferiori' ' billa de concessione subsidii quae lecta fuit semel cum proviso adjungendo pro mercatoribus de ly hansa Theutoni- corura.' On the 24th day the proviso was read and expedited ; on the 27th it was sent down to the commons; on the 29th the bill of the subsidy was delivered to Sir Thomas Lovel and his companions. The plan was thus in full working. Lords' Journals, i. pp. 7, 8. 2 See above, vol. ii. pp. 588 sq. * Above, vol. ii. p. 414. 460 Constitutional History. [chap. Bills sent down from the lords to the commons. fe^£iation°^ tried by their peers in parliament ^5 and on the petition of the commons most of the legislation of the middle ages is founded. The king's projects for the alteration of the law would be laid by the chancellor before the house of lords, and after discussion they would go down to the commons : a similar course was adopted in all cases in which the legislation began in the house of lords or on petition addressed to them. When the act, peti- tion, or bill had reached the requisite stage, that is, as it must be sujiposed, had been read three times, it was endorsed by the clerk of the parliament ' soit bailie ^ aux communs ' ; it was then sent down to the lower house by the hands of some of the judges or legal advisers of the parliament, with the message informing the commons of the subject of the bill and asking their advice ^. The practice of the house of commons was analogous ; there also a proposition for the change of the law, or for the remedy of a grievance, might originate in either a private petition of an individual aggrieved, or a proposition by a particular mem- ber, or a general petition of the house. The custom of pi-esent- ing private petitions to the house of commons, desiring them to use their influence with the king, came in first under Henry lY"*. These petitions would require to be sorted, as did Bills in the house of commons. Private petitions. ^ Above, vol. ii. p. 389. ^ See Rot. Pari. Hen. VIII, pp. cxcvii, ccvi, ccix, &c. ^ See below, p. 472. The form in the Lords' Journals of 15 10 "was this : •Jan. -24 Receptae sunt quatuor billae legendae, una pro libertatibus ecclesiae Anglicanae, una pro retornis falsis, &c. Billa pro reformatione ecclesiasticae libertatis bis lecta tradita fuit attomato et soUicitatori regiis refonnanda et emendanda, &c.' ' Die 5° Lect;i est Billa concernens ecclesiasticas libertates et jam bis lecta ; Item, &c.' ' Die 7° Item eodem die lecta est time tertia vice billa concernens libertates ecclesiae Angli- canae quae unanimi omnium dominorum tunc praesentium fuit approbata et admissa;' 'Item per dominos datae erat in niandatis clerico paiiiamenti et attomato et sollicitatori regiis quod crastino in mane deferrent ad domum inferiorem billam de ecclesiasticis libertatibus, &c.' 'Die 8^ Billa de libertatibus ecclesiasticis, &c., missae sunt in domum communem ; nuncii clericus parliamenti et attornatus regis' ; vol. i. pp. 4-6. Bills re- lating to the crown were sent down by two judges; other messages by masters in chancery ; the commons sent up their bills by one member, either the chairman of committee of ways and means or the member in charge of the bill, accompanied by seven others. This was altered in 181 7 and 1855 ; see E. May, Treatise on Parliament, pp. 435-437. * Rot. Pari. iii. 564. Every possible variation is found in the heading of the petitions ; some are to the king, others to the king and council, Legislative Proceedings. 461 those addressed to the king and lords; but the house did not Bills sent , n . . „ . . , up by the yet, so lar as can be seen, appoint a committee 01 petitions ; the commons to matter was arranged between the clerk and the whole house. Such private petitions as seemed to merit the consideration of the commons Avere after examination sent up to the lords with the note prefixed ' Soit bailie aux seigneurs V and there passed through the further stages before receiving the king's assent ; 'soit fait comme il est desire.' All these are of the nature of what are now called private bills ; a proceeding half legislative and half judicial ; the result may be termed an act of parliament, but it was not a statute, and instead of appearing among the laws of the realm was certified by letters patent under the great seal. 763. The common petitions of the house were a much more Common weighty matter. They were the national response to the king's the liouse of promise to redress grievances. They were the result of delibera- tion and debate among the commons themselves, whether they originated in the independent proposition of an individual mem- ber, adopted by the house as a subject of petition, or in the complaints of his constituents, or in the organised policy of a party, or in the unanimous wish of the whole house. Un- questionably they went through stages of which the rolls contain no indication before they were presented as the ' common peti- tions The history of this branch of parliamentary work has already been illustrated as fully as our materials allow; the articles of the barons at Runnymede and at Oxford, the petitions of the whole community at Lincoln in 1301, at Westminster in 1309 and 13 10, mark the first great stages of political growth in the nation. They are initiations of legislative reform, as much as the great statutes of Edward I. The common petitions of the fifteenth century, the petty gravamina, the minute details to the king, lords, and commons, to the lords and commons, and to the commons alone. The latter request the commons to mediate with the king and council. ^ See instances in Rot. Pari. iv. pp. 159, 160 sq., and generally from the reign of Henry V onwards. 2 In 1423 the merchants of the Staple sent in a petition to the lords ; • la quelle petition depuis fuist mande par mesmes les Seigneurs as ditz com- munes pour ent avoir lour avys, les queux communes mesme la petition rebaillerent come une de lour communes petitions'; Rot. Pail. iv. 250. It is very rarely that we find such an amount of detail. 462, Constitutional History, [chap. drawi^from amendments of law, are the later developments of the prin- ings^Tcon?" ^^P^^^ boldly enunciated in those documents : and the statutes vocation. based on the common petitions bear on the face evidence of their unbroken descent. It is not improbable that this process was identical with that by which in the discussions of the eccle- siastical convocations the gravamina of individuals, the refor- manda or proposed remedies, and the articidi cleH or completed representations sent up to the house of bishops, are and have been from the very first framed and treated ^ The gravamina of individual members of convocation answer to the initiatory act of the individual member in the commons, and the ' articuli cleri' to the 'communes petitiones'; both expressions may be traced back to the earliest days of representative assemblies. In the reign of Henry III we find gravamina and articuli among the clergy; in the reigns of John, Henry III, and Edward I we have articuli and occasionally gravamina among the laity. From the reign of Edward III the king promises in the opening speech to redress the grievances of his subjects ; and from the year 1343 the petitions of the commons are presented in a roll of articles, almost exactly resembling the articuli cleri. Yet here again except for this glimpse of light we are in complete darkness as to the exact steps of proceeding. There was a roll of petitions, on which, as we learn from Haxey's case, it was not very difficult to obtain the entry of a gi-avamen, which the pru- dence of the house, were it wide awake, could scarcely have allowed to pass. It cannot be believed that the articles of Haxey's petition, touching the number of ladies and bishops at court, could have been read three times and approved by the house, or, as is the practice in convocation, had been adopted by two-thirds of the members ; yet if it were not, it is difficult to understand how the custom of three readings can be regarded as an established rule. By some such process however the common petitions must have been authenticated; they were adopted by the house as its own, and sent up through the Obscurity of the method of proceeding. ^ See the standing orders of the lower house of convocation, drawn up it is believed in or about 1722 by bishop Gibson; and Gibson's Synodus Anglicana, cc. xii. xiii. XX.] Form of Statute, 463 house of lords to the kinsf. Even this \ve only learn from the Adoption of ^ I , ^ . the form enacting words of the statutes, and from a rare mention on of bills, the rolls of the cases in which the lords joined in the king's refusal. The statutes are made by the king with the advice and consent of the lords temporal and spiritual ; the petitions are answered 'le roi le veut' or 'le roi s'avisera' with the advice of the lords. Towards the close of our period the form of bill drawn as a statute has begun to take the place of peti- tion. This custom was introduced first in the legislative acts which were originated by the king ; the law proposed was laid before the houses in the form which it was ultimately to take. It was then adopted in private petitions which contained the form of letters patent in which a favourable assent was expressed ^. The form was found convenient by tlie commons in their grants, and by the king in bills of attainder ; it became applicable to all kinds of legislation, and from the reign of Henry VII was adopted in most important enactments We have already traced the efforts made by the commons to Process of secure the honest reproduction of the words of their petitions a bill in the statutes founded upon them ; that object was more per- commons, fectly secured by the adoption of the new form, the promulga- tion of a new law or act in the exact form in which it was to appear, if it passed, eventually in the statute roll. In this form we can more distinctly trace its progress : after the due readings and final adoption by the commons, it was sent up with the inscription ' Soit bailie aux seigneurs,' and was considered and adopted or rejected by the lords ^. If they accepted it, it was ^ A good instance is the king's act on purveyance in, 1439 ; Rot. Pari. V. 7, 8 : ' quaedam cedula sive billa communibus praedictis de mandate ipsius domini regis exhibita fuit et liberata sub hac verborum serie.' The act for the attainder of Henry VI and his partisans in 1461 was brought forward as ' quaedam cedula formam actus in se continens ' ; E,ot. Pari. v. 476. Private petitions in this form are found ib. iv. 323, etc. ^ See Rot. Pari. vi. 138, &c. It is to this form of initiation that the process of readings, committals, and report, are most easily applied ; and they appear very early in the Journals; thus 2 Edw. VI Dec. 10, 'The bill for levying of fines in the county palatine of Chester ; committed to Mr. Hare.' Jan. 8th: 'To draw a bill for the absence of knights and burgesses of parliament — Mr. Goodrick, Mr. Arundel'; Commons' Journals, i. 5, 6. 3 The first proofs of the three readings occur in the first J ournals of the 464 Constitutional History/. [chap. Mutual again endorsed ' Les seigneurs sont assentus ' and then submitted to the king. The same process was observed in statutes that originated with the lords : the commons recorded their assent, ' Les communs sont assentus/ and the bills went up to the king and his council. Enacting '^^^^ legislative act, when it had received the final form the^king^. which it was to become a part of the national code or statute roll, appeared as the act of the king. The enacting words as they appear in the first statute of Henry YII are these ' The king .... at his parliament holden at Westminster .... to the honour of God and Holy Church and for the common profit of the realm, by the assent of the lords spiritual and temporal and the commons in the said parliament assembled and by authority of the same hath do to be made certain statutes and ordinances .... Be it enacted by the advice of the lords spiritual and tem- poral and the commons in this present parliament assembled and by the authority of the same Sometimes assent as well as advice was again expressed, and the threefold expression of assent, advice, and authority may be regarded as the declaration of the function of the estates in legislation. We have in former chapters dwelt on the importance of these formulae; we have seen how, during the fourteenth century, petition or instance was the word used of the commons' share, and that it expressed the truth that most of the legal changes were suggested by their petitions. Under Richard II the mention of petition drops out, Commons ; the first reading is simply noted ; on the second reading follows the direction * Ingrossetur ' ; on the third the note 'Judicium'; see Com- mons' Journals, i. 12, &c. The form however in which the three readings are recorded before the royal assent is given runs thus ' Qua quidem per- lecta et ad plenum inteUecta eidem per dicta regem &c. &c. fiebat re- sponsio'; Lords' Journal, i. p. 9. This form occurs early in the reign of Henry VI and must be understood to have then the same meaning as in the first of Henry VIII. See Rot. Pari. v. 363 : 'Quae quidem petitio et cedulae transportatae fuei'unt et deliberatae communibus regni Angliae in eodem parliamento existentibus ; quibus iidem communes assensum suum praebuerimt sub hac forma, "a ceste bille et a les cedules a ycest bille an- nexez les Commjms sount assentuz " ; quibus quidem petitione, cedulis et assensu, in parliamento piaedicto lectis auditis et plenius intellectis, de avisamento et assensu dominorum spiritualium et temporalium in eodem parliamento existentium, auctoritate ejusdem parliamenti respondebatur eisdem in forma sequent!.' * Stat. I Hen. VII, preamble, Statutes, ii. 500. XX.] Form of Enactment. 4^5 and occasionally the full equality of the commons is expressed introduc- ri i i-i »mi ^^^^ 0^ by the form ' assent of the prelates, lords, and commons. The form 'by statutes of Henry IV and Henry V are passed ' by the assent of the same.' the prelates, dukes, earls, barons, and at the instance and special request of the commons,' or ' by the advice and assent of the lords spiritual and temporal, and at the prayer of the commons/ The same form is observed during great part of the reign of Henry VI in the statutes ; but the assent of the commons is put for- ward in the act by which the protector is appointed in 1422 ^, and in other acts of a less public character : the assent, or advice and assent, of the commons as well as of the lords is likewise expressed in the borrowing powers granted to the council ^. In the nth year of this king the expression 'by the authority of parliament ' first appears among the words of enactment in the preamble of the statutes ^. This particular form seems to have been used some years earlier in the separate clauses of statutes, althougli not in the heading of the roll : and in this way it is found as early as the year 1421 * : it was also used in petitions, in letters patent drawn up in compliance with private petitions, and in the bills introduced in the form of statutes: thus in 1442 a petition passed the commons for the endowment of Eton College, in which that house was requested to pray the king to grant letters patent under his great seal by the advice and assent of the lords spiritual and temporal in this present parliament assembled, and by authority of the same parliament^: in 1439 the bishop of S. David's and the dean and chapter of S. Paul's had letters patent in which the same form was used ; in 1423 the executors of Henry V had letters patent under the great seal by the authority of the parliament ^. From the year 1445 it becomes a regular part of the enacting and ordaining words ^ Rot. Pari. iv. 174. 2 jy. 276; see above, p. 254. 3 Statutes, ii. 278. * Rot. Pari. iv. 130. 5 Rot. Pari. V. 45. Instances of the foma in petitions will be found as early as the reign of Henry IV if not earlier; see Rot. Pari. iii. 530, 656 ; iv. 35, 40, 43, &c., 323, 325. 546. The endorsement on wiits ' by authority of the parliament' does not imply that the parliament was sitting at the time, but that the king was acting in virtue of some power bestowed by the parliament by a special act. See Nicolas, Ordinances, &c., vi. p. ccv. and also Elsynge, pp. 282, sq. ^ Rot. Pari. iv. 206, 207; v. 8, 9, 13. VOL. III. H h 466 ConstHufional History. [chap. which head the roll ^. The form used by Henry YII has lasted with few unimportant variations down to the present day. In modern times — that is, since parliamentary machinery has been matured — a bill before becoming an act has to go through several distinct stages. In the house of commons the proposer asks leave to introduce it, and it is ordered ; it passes its first reading, in most cases without being discussed on its merits ; it comes to the second reading, is debated clause by clause, receives amendments and passes into committee : it is committed and perhaps recommitted : it is brought up for a third reading, debated again if necessary, read a third time and passed. It goes through a similar process in the house of lords, where however the bills are presented without formal notice. If it has originated in the upper house it does not escape like manipulation in the lower. After the report is brought up it is printed, or, as was until recently the case, ingrossed. After passing both houses it is still subject to the royal veto, although for more than a century and a half that right has not been exercised ^. 765. Of the minute points of this carefully arranged proceed- ing some are doubtless of modern growth ; but the substance of the programme must be ancient. The three readings of the bills are traceable as soon as the form of bill is adopted ; the committees for framing laws find a precedent as early as 1340, when a committee of the two houses was appointed to draw up the statutes framed on the petitions * ; they are spoken of by Sir Thomas Smith as an essential part of legislative pro - cess ; ' the committees are such as either the lords in the higher house or the burgesses in the lower house do choose to frame the laws upon such bills as are agreed on and afterwards to be ratified by the same houses ; ' after the first or second reading the bill is ordered to be ingrossed ; it is read a third time, then the question is put, and traces of this procedure are found in the earliest journals of both houses : the silence of the rolls implies nothing as to the novelty of the practice. ^ Statutes, ii. 326 ; Rot. Pari. v. 70. 2 Sir T. Erskine May, Treatise on Parliament, pp. 468 sq. ^ Rot. Pari. ii. 113 ; above, vol. ii. p. 382. XX.] Procedure of Parliament, 467 We look in vain for illustrations of the rules of debate, and of the way in which order was maintained, or for any standing orders. Yet as soon as the journals begin, order, debate, and the by-laws of procedure, are all found in working. We are compelled to believe that many of them are ancient. In default then of anything like contemporary evidence, we |ir Thomas may accept Sir Thomas Smith's account of the holding of parlia- account of ment, notwithstanding the strong infusion of Tudor theory with of parlia- which it is inseparably mixed, as approximately true of the century that preceded : the extract is long, but it needs no apolog}^, and will supply all that is wanted here in respect of the procedure of the two houses : — 766. * The most high and absolute power of the realm of Constitution England consisteth in the Parliament : for as in war where the namentf king himself in person, the nobility, the rest of the gentility and the yeomanry are, is the force and power of England ; so in peace and consultation where the prince is, to give life and the last and highest commandment, the barony or nobility for the higher, the knights, esquires, gentlemen and commons for the lower part of the commonwealth, the bishops for the clergy, be present to advertise consult and show what is good and necessary for the commonwealth and to consult together ; and upon mature deliberation, every bill or law being thrice read and disputed upon in either house, the other two parts, first each apart, and after the prince himself in the presence of both the parties, doth consent unto and alloweth. That is the prince's and whole realm's deed, whereupon justly no man can complain but must accommodate himself to find it good and obey it. 'That which is done by this consent is called firm, stable and Power of the sanctum, and is taken for law. The parliament abrogateth ^j^j P^^^^^®"*- laws, maketh new, giveth order for things past and for things hereafter to be followed, changeth rights and possessions of pri- vate men, legitimateth bastards, establisheth forms of religion, altereth weights and measures, giveth form of succession to the crown, defineth of doubtful rights whereof is no law already made, appointeth subsidies, tailes, taxes and impositions, giveth most free pardons and absolutions, restoreth in blood and name, H h 2 468 Constitutional History. [chap. Represent- as the highest court, conclemneth or absolveth them whom the ter. prince will put to trial. And to be short, all that ever the people of Kome might do either in centuriatis comitiis or tributis, the same may be done by the parliament of England, which re- presenteth and hath the power of the whole realm, both the head and body. For every Englishman is intended to be there pre- sent, either in person or by procuration and attorney, of what pre- eminence, state, dignity or quality soever he be, from the prince, be he king or queen, to the lowest person of England. And the consent of the parliament is taken to be every man's consent, parimment ' "^^^^ j^^g^s in parliament are the king or queen's majesty, the lords temporal and spiritual ; the commons represented by the knights and burgesses of every shire and borough town. These all or the greater part of them, and that with the consent of the prince for the time being, must agree to the making of laws. Officers. ' The officers in parliament are the speakers, two clerks, the one for the higher house the other for the lower ^, and committees. The speaker. ' The speaker is he that doth commend and prefer the bills exhibited into the parliament, and is the mouth of the parlia- ment. He is commonly appointed by the king or queen though accepted by the assent of the house ^. The clerks. ' The clerks are the keepers of the parliament rolls and records, and of the statutes made, and have the custody of the private statutes not printed. Committees. ' The committees are such as either the lords in the higher house, or burgesses in the lower house do choose to frame the laws upon such bills as are agreed upon, and afterward to be ratified by the said houses ^. Writs of ' The prince sendeth forth his rescripts or writs to every duke, marquess, baron and every other lord temporal or spiritual who hath voice in the parliament, to be at his great council of parliament such a day (the space from the day of the ^ See above, p. 451. ^ This is a mark of Tudor innovation. See Coke, 4 Inst. p. 8 : 'for avoid- ing of expense of time and contestation the use is, as in the cong^ d'eslire of a bishop, that the king doth name a discreet and learned man whom the commons elect.' ^ See above, p. 466. summons. XX.] Ceremonies of Parliament, 469 writ is commonly at the least forty days ^) ; he sendeth also Elections of writs to the sheriffs of every shire to admonish the whole shire to choose two knights of the parliament in the name of the shire, to hear and reason and to give their advice and consent in the name of the shire, and to be present at that day ; like- wise to every city and town which of ancient time hath been wont to find burgesses of the parliament, so to make election, that they might be present there at the first day of the Parlia- ment. The knights of the shire be chosen by all the gentlemen and yeomen of the shire present at the day assigned for the election ; the voice of any absent can be counted for none. Yeomen I call here, as before, that may dispend at the least forty shillings of yearly rent of free land of his own. These meeting at one day, the two who have the more of their voices be chosen knights of the shire for that parliament ; likewise by the plurality of the voices of the citizens and burgesses be the burgesses elected. 'The first day of the parliament the prince and all the lords, Meeting of in their robes of parliament, do meet in the higher house, where, after prayers made, they that be present are written and they that be absent upon sickness or some other reasonable cause, which the prince will allow, do constitute under their hand and seal some one of those who be present as their procurer or attorney, to give voice for them, so that by presence or attorney and proxy they be all there ; all the princes and barons, and all archbishops and bishops, and, when abbots were, so many abbots as had voice in parliament ^. The place where the The pariia- assembly is, is richly tapessed and hanged ; a princely and royal throne, as appertaineth to a king, set in the middest of the higher place thereof. Next under the prince sitteth the chan- cellor, who is the voice and orator of the prince. On the one side of that house or chamber sitteth the archbishops and bishops each in his rank, on the other side the dukes and barons. ' In the middest thereof upon woolsacks sitteth the judges of Arrange-^ the realm, the master of the rolls, and the secretaries of state, house of lords. ^ See above, p. 281. 2 ggg above, p. 445. 470 Constitutional History, [chap. Meeting of the com- mons. Forms of the But these that sit on the woolsacks have no voice in the house, house of . lords. but only sit there to answer their knowledge in the law, when they be asked, if any doubt arise among the lords : the secre- taries do answer of such letters or things passed in council whereof they have the custody and knowledge, and this is called the upper house, whose consent and dissent is given by each man severally and by himself, first for himself, and then sever- ally for so many as he hath letters and proxies ; when it cometh to the question, saying only Content or Bot Content^ without further reasoning or replying. ' In this meantime the knights of the shires and burgesses of parliament, for so they are called that have voice in parliament and are chosen (as I have said before), to the number betwixt three and four hundred ^, are called by such as it pleaseth the prince to appoint, into another great house or chamber, by name, to which they answer ; and declaring for what shire or town they answer, then they are willed to choose an able and discreet man to be as it were the mouth of them all, and to speak for and in the name of them, and to present him so chosen by them to the prince : which done, they coming all with him to a bar which is at the nether end of the upper house, there he fi^rst praiseth the prince, then maketh his excuse of inability, and prayeth the prince that he would command the .commons to choose another. The chancellor in the prince's name doth so much declare him as able as he did declare him- self unable, and thanketh the commons for choosing so wise, discreet and eloquent a man, and willeth them to go and consult Choice of jspeaker. His admis- sion. ^ The additions to the representative body made between the time of Smith and that of Fortescue were in Henry VIII's reign the knights of the shire for Cheshire, Monmouthshire, and the Welsh counties ; and bur- gesses for Buckingham, Chester, Berwick, Orford, Calais, and the Welsh county towns ; under Edward VI, eight towns in Cornwall, Maidstone, Boston, Westminster, Thetford, Peterborough, and Brackley were added, and S. Albans, Lancaster, Preston, Wigan, Liverpool, Petersfield, Lichfield, Thirsk, Hedon, and Pipon, which had sent members to the early parlia- ments were revived as parliamentary boroughs ; under Mary, Abingdon, Aj'lesbury, S. Ives, Castlerising, Higham Ferrers, Morpeth, Banbury, Knaresborough, Boroughbridge, and Aldborough were added, and Wood- stock and Droitwich revived; under Elizabeth twentj'-four new boroughs were added and seven revived. See Browne Willis, Not. Pari. pp. 92-101. XX.] Ceremonies of Parliament. 471 of laws for the commonwealth. Then the speaker maketh cer- Privileges ^ claimed by tain requests to the prince in the name of the commons ; first the speaker. that his majesty would be content that they may use and enjoy all their liberties and privileges that the common house was wont to enjoy ; secondly, that they might frankly and freely say their minds in disputing of such matters as may come in question and that without ofPence to his majesty : thirdly, that if any should chance of that lower house to offend, or not to do or say as should become him, or if any should offend any of them being called to make his highness' court, that they them- selves might, according to the ancient custom, have the punish- ment of them : and fourthly, that if there come any doubt whereupon they shall desire to have the advice or conference with his majesty or with any of the lords they might do it * ; all which he promiseth in the commons' names that they shall not abuse but have such regard as most faithful true and loving subjects ought to have to their prince. ' The chancellor answereth in the prince's name as apper- taineth. And this is all that is done for one day and sometime for two. ' Besides the chancellor there is one in the upper house who Process is called clerk of the parliament, who readeth the bills. For"^^^ all that Cometh in consultation either in the upper house or in the nether house is put in writing first in paper ^ : which being once read, he that will riseth up and speaketli with it or against it ; and so one after another so long as they shall think good. That done they go to another, and so another bill. After it hath been once or twice read, and doth appear that it is some- what liked as reasonable, with such amendment in words and peradventure some sentences as by disputation seemeth to be amended ; in the upper house the chancellor asketh if they will ^ This form does not exactly agree with any of those recorded, but it gives the general spirit of the petition. See above, pp. 454, 455 ; Lex Parliament- aria, pp. 137, 138; Coke, 4th Inst. p. 8. ' Lords' Journals, i. 4 : 15 10, Jan. 25, 'Billa de apparatu, in papiro, lecta est jam primo et tradita attomato et sollicitatori domini regis eniendanda.' ^ Bills of general pardon, and of clerical subsidies were read but once in each house; Lex Parliamentaria, p. 178. 472 Constitutional History, [chap. Form of have it ingrossed, that is to say, put into parchment ^ ; which pissmg s ^^^^ ^^^^ third time and that eftsoones, if any be dis- posed to object, disputed again among them, the chancellor asketh if they will go to the question And, if they agree to go to the question, then he saith " Here is such a law or act con- cerning such a matter, which hath been thrice read here in this house; are ye content that it be enacted or noV If the Non- Contents be more, then the bill is dashed ; that is to say, the law is annihilated and goeth no farther. If the Contents be more, then the clerk writeth underneath " Soit bailie aux com- mons." And so when they see time they send such bills as they have approved by two or three of those which do sit on Bills sent the woolsacks ^ to the commons ; who asking licence and commons, coming into the house with due reverence, saith to the speaker, "Master Speaker, my lords of the upper house have passed among them and think good that there should be enacted by parliament " such an act, and such an act, and so readeth the titles of that act or acts ; " they pray you to consider of them and show them your advice:" which done they go their way. They being gone and the door again shut, the speaker rehearseth to the house what they said. And if they be not busy disput- ing at that time in another bill, he asketh them straightway if they will have that bill, or, if there be more, one of them. Procedure * In like manner in the lower house ; the speaker, sitting in a of commons, seat or chair for that purpose somewhat higher that he may see and be seen of them all, hath before him, in a lower seat, his clerk who readeth such bills as be first propounded in the lower house, or be sent down from the lords. For in that point each house hath equal authority to propound what they think meet, either for the abrogating of some law made before, or for making of a ^ See above, p. 463, note. In 1401 the commons pray that the business of parliament may be ingrossed before the departure of the justices ; Rot. Pari. iii. 457, 458: and in 1420 that the petitions may not be ingrossed until they have been sent to the king in France ; ib. iv. 128. In 1404 they allege that an error had been made in the ingrossing of the grant of subsidy; ib. iii. 556. None of these passages seem to refer to anything like the ingrossing after second reading. See Coke, 4th Inst. p. 25 ; Lex Parliamentaria, p. 186. ^ See above, p. 460. XX.] ♦ Forms of Parliament. 473 new. All bills be thrice, in three divers days, read and dis- Practice in ^ - . . debates, puted upon, before they come to the question. In the disputing is a marvellous good order used in the lower house. He that standeth up bare headed is understanded that he will speak to the bill. If more stand up, who that is first judged to arise is first heard ; though the one do praise the law, the other dis- suade it, yet there is no altercation. For every man speaketh as to the Speaker ^, not as one to another, for this is against the order of the house. It is also taken against the order to name him whom ye do confute but by circumlocution, as he that speaketh Standing Orders with the bill or he that spake against the bill and gave this and this reason. And so with perpetual oration not with altercation he goeth through till he do make an end. He that once hath spoken in a bill, though he be confuted straight, that day may not reply, no though he would change his opinion ; so that to one bill in one day one may not in that house speak twice, for else one or two with altercation would spend all the time. The next day he may, but then also but once'^. No reviling or nipping words must be used ; for then all the house will cry " it is against the order ; " and if any speak unreverently or seditiously against the prince or the privy council, I have seen them not only interrupted, but it hath been moved after to the house and they have sent them to the Tower. So that in such multitude and in such diversity of minds and opinions there is the greatest modesty and temperance of speech that can be used. Mainten- Nevertheless with much doulce^ and gentle terms they make order, their reasons as violent and as vehement one against the other as they may ordinarily, except it be for urgent causes and hast- ing of time. At the afternoon they keep no parliament. The speaker hath no voice in the house, nor will they not suffer him to speak in any bill to move or dissuade it. But when any bill Office of is read, the speaker's office is as briefly and as plainly as he may to declare the effect thereof to the house. If the commons do assent to such bills as be sent to them first agreed upon ^ Lex Parliamentaria, p. 150. 2 Jbid. p. 186. ' So in the reign of Richard II, the commons urged that the petitions should be ' par amyable manere debatez' ; Rot, Pari. iii. 14. 474 0 Constitutional History. [chap. Cases of difference between the two houses. Different form of voting. No proxies in the commons. Second and third readings. Pinal question. from the lords [tliey send them back to the lords] thus sub- scribed " les commons ont assentus " ; so if the lords do agree to such bills as be first agreed upon by the commons, they send them down to the speaker thus subscribed " les seigneurs ont assentus." If they cannot agree, the two houses, for every bill from whencesoever it doth come is thrice read in each of the houses, if it be understood that there is any sticking, sometimes the lords to the commons, sometimes the commons to the lords, do require that a certain of each house may meet together and so each part to be informed of other's meaning ; and this is always granted. After which meeting for the most part, not always, either part agrees to other s bills. ' In the upper house they give their assent and dissent, each man severally and by himself, first for himself, and then for so many as he hath proxy. When the chancellor hath de- manded of them whether they will go to the question after the bill hath been thrice read, they saying only Content or Non- Content without further reasoning or replying, and as the more number doth agree so it is agreed on or dashed. 'In the nether house none of them that is elected, either knight or burgess, can give his voice to another, nor his consent or dissent by proxy. The more part of them that be present only maketh the consent or dissent. After the bill hath been twice read and then ingrossed and eft- soones read and disputed on enough as is thought, the speaker asketh if they will go to the question. And, if they agree, he hold- eth the bill up in his hand and saith, " As many as will that this bill go forward, which is concerning such a matter, say ' Yea.' " Then they w^hich allow the bill cry " Yea," and as many as will not say " Xo as the cry of yea or no is bigger, so the bill is allowed or dashed. If it be a doubt w^iich cry is bigger they di- vide the house, the speaker saying "As many as do allow the bill go down with the bill, and as many as do not, sit still." So they divide themselves, and being so divided they are numbered who made the more part, and so the bill doth speed. It chanceth sometime that some part of the bill is allowed, some other part hath much contrariety and doubt made of it ; and it is thought XX.] Forms of Parliament. 475 if it were amended it would go forward. Then they choose Committals certain committees of them who have spoken with the bill and committals, against it to amend it and bring it in again so amended as they amongst them shall think meet : and this is before it is ingrossed ; yea and sometime after. But the agreement of these committees is no prejudice to the house. For at the.last ques- tion they will either accept it or dash it as it shall seem good\ notwithstanding that whatsoever the committees have done. * Thus no bill is an act of parliament, ordinance, or edict of law until both the houses severally have agreed unto it after the order aforesaid; no nor then neither. But the last day of that Close of the parliament or session the prince cometh in person in his par- liament robes and sitteth in his state ; all the upper house sitteth about the prince in their states and order in their robes. The speaker with all the common house cometh to the bar, and there after thanksgiving first in the lords' name by the chan- cellor and in the commons' name by the speaker to the prince for that he hath so great care of the good government of his people, and for calling them together to advise of such things as should be for the reformation, establishing, and ornament of Speeches the commonwealth ; the chancellor in the prince's name giveth dissolution. ' thanks to the lords and commons for their pains and travails taken, which he saith the prince will remember and recompence when time and occasion shall serve ; and that he for his part is ready to declare his pleasure concerning their proceedings, whereby the same may have perfect life and accomplishment by his princely authority, and so have the whole consent of the realm. Then one readeth the titles of every act which hath passed at that session, but only in this fashion, "An act con- cerning such a thing," &c. It is marked there what the prince doth allow and to such he saith "Le roy" or "La royne le veult^." ' 'Dec. 8. 1548, L. 3. The bill for the assurance of the earl of Bath's lands: 'vacat per majorem numerum super quaestione'; Commons* Journals, i. 5. ^ The form by which the act of subsidy was authorised ran thus : — ' Le roi ren)ercie ses communes de lor boons cuers en faisant les grauntes suis- dictz, mesmes les grants accepte, et tout le content en I'endenture avan- dit especifie graunte et approve, avesque I'act et les provisions a cest indenture annexez'; Lords' Journals, i. 9; Kot. Pari. v. 510. The 476 Constitutional History. [chap. Public and And tliose be taken now as perfect laws and ordinances of the private acts, j,^^^^ ^£ England and none other ; and, as shortly as may be, put in print, except it be some private cause or law made for the benefit or prejudice of some private man, which the Romans were wont to call privilegia. These be only exemplified under the seal of the parliament and for the most part not printed. To those which the prince liketh not he answereth " Le roy " or "La royne s'advisera," and those be accounted utterly dashed and of none eff'ect. ' This is the order and form of the highest and most authen- tical court of England Judicature 767. The judicial functions of parliament, including in their of lords. widest acceptation the decision of great suits and civil appeals by the house of lords, the trial of lords and others impeached or appealed, the practice used in bills of attainder, and the quasi- judicial action of both houses in the matter of petitions, find ample illustration in the pages of constitutional history : and the minuter details of parliamentary practice in these matters belong to the jurist rather than to the historian. The parlia- ment, and either house of it, was in fact a tribunal of such extreme resort that rules for proceeding must almost necessarily have been framed as each particular case required. On petitions public and private much the same process was used as we have endorsement on the legislative acts was added after the last act of the session : ' Qua quidem perlecta et ad plenum intellecta eidem per dictum dominum regem de advisamento et assensu dominorum spiritualium et tem- poralium ac communitatis in parliamento praedicto existentium, auctori- tateque ejusdem parKamenti sequens fiebat responsio " Le roi le veult" ' ; Lords' Journals, i. 9. The process by wliich the form 'le roi s'avisera' acquired the meaning of refusal, may be worked out on the Rolls : Edward I could say ' rex non habet consilium mutandi consuetudinem . . . nec statuta sua revocanda ' ; Rot. Pari. i. 51: but he generally gives reasons. Under Edward II we find ' rex habebit advisamentum ' in a natural sense, p. 394 : ' injusta est,' pp. 393, 408 ; ' nihil,' p. 435. Edward III has 'le roi s'avisera de faire I'eese a son peuple q'il pourra bonement,' ii. 142 ; ' soit le roi avise,' p. 169 ; Me roi s'avisera queux,' &c., pp. 166, 169; and simply ' le roi s'avisera,' p. 172; ' ce n'est pas reson- able,' p. 240; 'est noun resonable,' p. 241; 'les seigneurs se aviseront,' p. 318; after the accession of Richard II it seems to have its modern meaning. ^ The Commonwealth of England and manner of government thereof; compiled by the honourable Sir Thomas Smith, knight ; London, 1589 ; bk. ii. cc. 2, 3. Sir Thomas died in 1577. XX.] Judicature of the Lords, 477 here attempted to trace in the practice of legislation ; a bill of Appeals of attainder went through the same stages as a bill of settlement or of legal reform. The appeal of treason in parliament, always an irregular and tumultuous proceeding, was forbidden by the first parliament of Henry lY \ The supreme or appellate juris- Appellate diction of the lords in civil suits is a matter rarely heard of of the lords. from the time when the complete and matured organisation of the courts of Westminster had been supplemented by the judicial activity of the council, until it was revived and reorganised in the sixteenth and seventeenth centuries ^. The practice of trial Impeach- ments. upon impeachment has thus a melancholy prominence in the judi- cial annals of parliament : and there is no occasion to dwell here on the details which have been given in our narrative chapters. The presumptuous boast of the Merciless Parliament in the case Claim of i> 1 f ^• •111 n parliament of the appellants of 1388, that parliament is bound by none of to be above the ordinary rules of law, civil or common ^, lias not practically met with acceptance even in the extreme cases in which Straf- ford, Laud, and Charles I were made to feel that a minute adherence to forms is a different thing from the observance of constitutional law. The impeachments as well as the appeals of medieval times are, as has been already remarked, pregnant with warning rather than example. The Rolls of Parliament afford such scanty glimpses of detail Presence of l' ° ^ the kmgs ui in all points except the results of the session, and so seldom parliament, contain any notice of speeches or debates, that it would not be safe to argue from their silence that the kings took a very small share in the deliberative work of the national council. It is * See above, p. 23. * See May, Treatise on Parliament, p. 53, where the judicial powers of the house of lords are briefly summed up : They have a judicature in the trial of peers, and claims of peerage ; a general judicature as a supreme court of appeal from other courts of justice, inherited from the ancient ' concilium regis.' In the seventeenth century they assumed a jurisdiction which has since been abandoned, an original jurisdiction in civil suits; and the like in criminal eases where there was no impeachment by the commons. The appellate jurisdiction in equity has been exercised since the reign of Charles I ; and the jurisdiction in cases brought up by writ of error, originally derived from the crown, was confirmed by Stat. 27 Eliz. c. 8 ; cf. Coke, 4th Inst. p. 20. ' See above, vol. ii. p. 480; Rot. Pari. iii. 236; cf. Coke, 4th inst. P- 15- 47 8 Constitutional History. [chap. The king however quite fair to argue from the position usually occupied is present , , . at the open- by the ministers m the formal transaction of business that it ingofthe • i i i • parliament, was only on very rare occasions that the king would take part in deliberation, either as a speaker or as a hearer. His presence was deemed necessary at the opening and genei'ally at the close of the session ; but most frequently his duty was discharged when he had directed the chancellor to state the causes of sum- mons, and to thank the estates for their attendance. The chan- cellor was his spokesman in most cases when he approved the election of the speaker. His decision on petitions was expressed by an indorsement which the clerk of the parliament read on He seldom the last day of the session as the king's answer. It was very seldom that he spoke, or was recorded to have spoken ; and when it is recorded it is with exceptional solemnity. The im- perfection of the records of the reigns of Edward I and Edward II makes it impossible to speak positively with regard to them ; Edward I however had probably learned to guard against the garrulity which made his father ridiculous, and Edward II seldom cared even' to face his subjects. In 1315^ we are told that it was by the king's order that William Inge opened the parliament, but even this slight indication is generally sup- pressed ; and the statement that ' de par le roi ' such and such ministers spoke cannot be understood to mean that he gave a Speeches of verbal direction. Under Edward III, whose popular manners * and constant association with his barons make the appearance of silence still more strange, the same course was observed ; it is in 1363^, after he has been more than thirty years on the throne, that we first distinctly find him making his will known to the commons by his own mouth ; they thank him for having done this in the last parliament, from which we infer that he had spoken on the occasion of the dissolution. The parliament of 1362 was that in which the use of English in legal transac- tions was ordered; that of 1365 was opened with an English speech, and it may be inferred that in giving the estates leave to depart Edward himself had spoken in English, and that where in ^ Eot. Pari. i. 350. 2 Ibid. ii. 276. XX.] Dismissal of Parliament. 479 other cases the address of thanks is not said to have been spoken His parting by the chancellor, it was spoken by the king. In the last inter- view which he had with his parliament, at Sheen in 1377, the parting words are put in his mouth ^. The days of serene su- premacy passed away with Edward III; Richard 11 is more than once said to have uttered haughty words in parliament. In 1386 he protested 'par sa bouche demesne' that his preroga- Speeches of . . . ^ \ , , n , , . T . Richard II. tive was not impan-ed by what had taken place m the session ; in 1388 he had to declare openly in full parliament that he believed his uncle the duke of Gloucester to be loyal; in 1390 he thanked the lords and commons for their advice and grants. In 1397, in the discussion on Haxey's bill, he allowed the chan- cellor to complain on his behalf to the lords, but when that was done, administered a reproof and stated his determination in his own words, and in the same way pardoned the commons when they had made their humble apology. But in this and the following parliament Hichard played the part of a politician rather than that of a constitutional sovereign ; he discussed in a long speech to the commons the foreign policy which he had adopted, and acted as his own minister ^. In the next session he spoke several times on the accusation against Arundel, and in vindication of his own friends, but these utterances were perhaps judicial: in his last revolutionary session at Shrewsbury he followed the same course, stating with his own mouth at the dissolution that he would annul his pardon recently granted unless the newly voted grants were collected without impedi- ment ^. The succeeding kings took a still more prominent part in Speeches of parliament. Henry lY, whose claim to the crown, spoken in "^^^ English made the occasion an era of constitutional progi'ess, not only signified his wishes to the parliament, but deigned to argue with the commons ; he laid himself open to the good advice of the speaker, and condescended on various occasions both to defend himself and to silence his interlocutor : he soon * Rot. Pari. ii. 364. * j^jj^ i^j^ ^38, 339. 3 Ibid. iii. 351, 353, 369. * See above, p. 12. 48o Constitutional History. [chap. Eloquence of Edward IV. Discussions learned that his dignity would not survive too great familiarity, with the and had to reprove the loquacity of the speaker. It is one of the notable features of his policy that he stood, notwithstanding his difficulties, always face to face with his subjects. The re- cords of the next reign are too meagre to illustrate this point ; Henry V seems however to have conversed as freely as his father had done with the lords, and perhaps maintained his dignity better. In the minority of his son, the dukes of Gloucester and Bedford are found stating their own quarrels, notwithstanding their dignified place of protector and chief counsellor, and the boy king was very early made to play his part in the formal solemnities of the session. Edward IV, who imitated the more popular usages of the rival house, likewise made speeches to both lords and commons ; and in particular, in dissolving his first par- liament, addressed the speaker in simple and touching language of gratitude and promise ^. All these speeches were made by the king either in full parliament, that is, in the presence of both houses, or in the house of lords to the lords who were then and there in attendance upon him. It was fully recognised that for anything like consultation the two houses had a right to the utmost privacy; the commons had a right to deliberate by them- selves, and the lords by themselves ; and when they desired to be private, the king was ill-advised indeed if he listened to any report of their proceedings other than they presented to him ^. Although, however, a good deal of the business of the lords was no doubt transacted in the king's presence, medieval history affords no instance of his visiting the house of commons whilst they were debating. The question of freedom of debate belongs to another part of our subject. 768. The right of suspending the session by adjournment or prorogation, of countermanding a meeting once called, and of dissolving the parliament itself, was throughout the middle ages vested in the king alone. The distinction between adjournment and prorogation, in so far as the one belongs to the houses and Privacy of debate. 1 Kot. Pari. V. 787. ^ Queen Anne was the last sovereign who attended debates in the house of lords ; May, Treatise on Parliament, p. 449.. XX.] Prorogation and Adjournment. 481 the other to the crown, is a modern distinction ^ The necessary Royal , • pow6r of adjournment from day to day, as well as the countermanding of adjourning a parliament called, and the longer intermission of the session, rogu?ng. was known as prorogation : the houses were ordered by the king to meet from day to day until business was finished, and the rule of adjourning at midday originated probably as much in the necessity of dining as in the wish to claim a privilege ^. The countermanding poAver is proved by numerous instances : in some cases the king was prevented from attend- ance at the time fixed, and warned the estates not to assemble ; in others they met to be prorogued, as in the case of the parlia- ment of 1454*, and in several formal sessions of the reign of Edward lY, the political importance of which has been noticed already. The circumstances under which the right was exercised differ widely from those under which in later times the right of prorogation has been regarded as important. It was then, as now, somewhat difficult to keep the members together until business was in a fair way of being finished ; but the long con- tinued practice of holding one or more than one new parliament every year was in strong contrast with modern usage. A parlia- ment of Kichard II threatens to dissolve itself, but no medieval parliament threatens to sit in permanence. The houses, unlike the clerical convocations, which very unwillingly allowed any interference with their times and places of session, showed an unbounded respect for the king's order in this matter : and the kings showed similar respect for the estates. The long prorogations, when they become usual, are, like the early annual ^ See above, vol. ii. p. 473. ^ The word 'prorogation ' is constantly used for countermanding or delay- ing the day of meeting; see Pari. Writs, i. 33, 120, &c. A parliament is 'revoked' altogether in 1331 ; Lords' Report, iv. 402. ' Under Henry VIII, when the house of lords adjourned, owing to the absence of the prelates in convocation, the adjournment was ordered by royal authority. The growth of the claim of the houses to adjourn them- selves may be traced in Hatsell's Precedents, ii. 311 sq. In 162 1 Sir E. Coke says ' the commission [of adjournment] must be only declaratory of the king's pleasur but the court must adjourn itself ; lb. p. 311. On the modem law, see May, Treatise on Parliament, p. 50. * See Rot. Pari, v. 238, 497-500, &c. VOL. III. I i Constitutional History. [chap. or terminal sessions, defined by the season of harvest and the church festivals. Ceremony of 759. When the business of the session was finished, the kind's dissolving ^ ^ ^ . parliament, questions answered, the petitions heard and decided, the laws ingrossed for final acceptance, and, above all, the money grants agreed upon, all parties were ready and anxious to go home. The session, which, it is scarcely necessary to repeat, was in early times the whole action of the particular parliament, was solemnly closed. Sometimes, as in 1305, the parliament was dissolved by proclamation, sometimes the king in person appeared to take and give leave to depart^. The roll of 1365 furnishes a fair instance of the early usage; 'the 17th of February the king, lords and commons being assembled in the white chamber, and the ordinance against those who impugn the rights of the king and his crown being read first, and then the petitions of the commons and their answers, and the grant made to the king of the subsidy of wool, leather, and woolfells being recited to the said lords and commons by the chancellor, the king thanked the said lords and commons heartily for their good council and advice, and the great travail they had had, and also for the aid which they had made and granted him in this parliament, and gave leave to the said lords and commons to depart each where he pleased; and so ended the parliament^.' Richard II, in 1386, took the opportunity of making a protest on behalf of his prerogative by word of mouth ^. Henry IV, in 1402, invited both houses to dine with him on the Sunday after the dissolu- tion ; but though the king several times spoke in the parliament chamber, the invitation was conveyed by the earl of North- umberland The Lancastrian kings more than once took leave of the estates in person and with a speech, and Edward IV took particular pains to address the commons at least in his first parliament^. It was not always that matters ended so pleasantly; ^ See the proclamation of dissolution by Edward I in 1305 ; Pari. Writs, i. 155 ; Eot. Pari, i. 159. 2 Rot. Pari. ii. 288. 3 jbid. iii. 224. * Ibid. iii. 493 : In 1368 Edward III entertained tlie lords and many of the commons on a like occasion ; ib. ii. 297. 5 Ibid. V. 486. XX.] Dissolution of Parliament. 483 more than once a committee had to be named to dispatch Members kept behind. petitions that had not been fully considered, or to make sure that the common petitions were not altered before they became laws. In 1332 and 1333 the lords were ordered to stay when the commons had leave to go ^. In 1362 some of the commons were directed to stay for certain business on Avhich the king wished to speak; in 1372 the citizens and burgesses were kept behind and prevailed on to grant tunnage and poundage^. In 1376 the king was ill at Eltham, and the three estates went down to take leave of him and to hear his answers to the petitions; in 1377 they went in the same way to Sheen to receive the answers, which were read on the following day in the parliament chamber, and then sat for some days longer The dissolution was some- times made an occasion for an oration by the speaker ; Sir Arnold Savage furnishes the most conspicuous example, but the announcement of the grant on the last day of the session was a tempting opportunity for compliments on both sides. The parliament was held to be dissolved by the death or de- Dissolution .. . !•! on the king's position of the king in whose name it was called, but this nile death, was not observed in the case of Edward II, and was evaded in that of Eichard II. The parliament of 1413 was dissolved by the death of Henry lY ; and this is a solitary example 770. One of the last matters transacted was the issue of the ^a^esof tiie members of writs to the sheriffs and borouo^h maodstrates for the payment of the house of , , commons. the wages of the representatives in the house of commons. The knights of the shire received each four shillings a day, and the citizens and burgesses each two. This rate of payment was fixed by usage, or possibly by ordinance, in the seventh year of Edward II ; and was observed from the beginning of the next reign, the rates of the preceding and intervening years having occasionally varied. These wages were collected by the sheriffs from the ' communities ' of the counties and towns represented, and were a frequent matter of petition, in which almost every conceivable plea was alleged in order to escape the obligation ^. ^ Eot. Pari. ii. 65, 69. 2 Ji. 275, 310. ' Ibid. ii. 330, 364. * Ibid. iv. 9. ' See Prynne, Fourth Eegister, pp. 1-608. Pari. Writs, II. i. 115 ; cf. pp. 148, 210, &c. The sheriff of Cambridge in 1307 is forbidden to distrain I i 2 484 Constitutional History, [chap. wages. Disputes It is on the arguments so put forward that some of the payment of erroneous views were formed, which we have seen early obscuring the simplicity of the idea of parliamentary representation. The king's advisers almost invariably decide that the existing custom in the particular county shall be followed. Under Henry YIII the wages of the newly added members were secured by legisla- tion ; but until then they were levied under the royal writ, the towns represented being of course at liberty to increase the rate if they pleased. The representatives of London, for instance, in 1296 received ten shillings a day by a vote of the magistrates^, and the members for York in 1483 were promised eight ad- ditional days wages on the occasion of the coronation of Edward V. The sums were paid with due consideration for the time spent on the way, ' in eundo, morando, et redeundo ' ; this made the burden heavier in the case of the northern counties, and may account in some small measure for their disinclination to send members. In 142 1 the people of Ely bought for £200, paid to the county of Cambridge, immunity from this payment which they had previously claimed as tenants of a great fran- chise : the same county possessed in the reign of Henry VIII a manor, called the shire manor, charged with a payment of £10 a year to the expenses of the knights' wages, the men of Cam- bridgeshire being thus relieved from direct payments. The the villeins of John de la Mare for expenses, inasmuch as he attended in person; Pari. Writs, I. I91 : so also in Norfolk the villeins of the bishop are free ; Pari. Writs, II. i. 259. In 1327 Edward III orders the sheriff of Middlesex to levy the expenses within liberties as well as without, the men of the liberties of Westminster and WaUingford having refused to pay ; ib. II, i. 366. On the collection of wages in Gloucestershire from both the liberties and the geldable, see Pari. Writs, I. 95. The sheriff of Kent returns in 1313 that at three county courts the men refused to pay, on the ground that they held in gavelkind; Pari. Writs, II, i. 91. In 131 2 the member for Wilts brings an action against the sheriff to recover the difference between 4s. and i6cZ., at which sum he had sent in his account to the sheriff, ignorant of the more liberal tariff; Pari. Writs, II. i. 195. ^ The parliament of 1296 was at S. Edmund's; Pari. Writs, I. 149: in 1 298 the sum fixed is loos. each, ib. p. 72, the parliament being at York. In 1322 the rate is 3s. for knights, 200?. for burghers; Pari. Writs, II. i. 258. In 1325, 3s. for valetti. At Lynn in 143 1 the members received 6.s. 8c?. a day; Archseol. xxiv. 320 : in 1442 it was voted that they should have 2s. a day each and no more ; ib. p. 322. On the immunity of tenants in ancient demesne, Prynne, Keg. ii. 176. XX.] RigJds and Privileges. 485 townsmen of Cambridge passed an ordinance, in 1427, that the The king wages of their burgesses should be only a shilling a day, and favour of made an agi'eement with their members to accept half the usual custom, sum ^. Many curious particulars have been collected upon this point, which has an archaeological as well as a constitutional interest. The refusal of the king, in all cases, to interfere with custom, shows how ancient a right the payment was, and how hazardous a thing to meddle with it. The practice of course vanished as a seat in parliament became an object of more selfish ambition or greater political aspirations. 771. Although the two houses of parliament had, at least since Special the accession of the house of Lancaster, been fully recognised privUe^es^of as co-ordinate, equal, and mutually independent assemblies, they houses^and each retained peculiarities of usage and exclusive rights in special ber^! provinces of work to which the names of prerogative or privilege might be given if those names were not otherwise appropriated. At the close of the middle ages the commons were advisers and assentors, not merely petitioners, in matters of legislation, and in matters of political consideration their voice was as powerful as that of the lords ; they were no longer, if they had ever been, delegates, but senators acting on behalf of the whole nation^. Jn the other two branches of national business there were dis- tinctions which ran back to the early differences of origin. The Financial lords were the judges of parliament, the commons were the Sitcom- originators of grants ; and although the commons were yet a long way from that point at which they were to exclude the lords fi'ora all interference with money bills, they had, both in the forms of their grants and in the royal promise to receive information of the grants from the mouth of the speaker alone, won the ground on which their later claim was based. The * Cooper, Annals of Cambridge, L 178, 186. ^ Coke, 4tli Inst. p. 14 : ' It is to be observed, though one be chosen for one particular county or borough, yet when he is returned and sits in par- liament, he serveth for the whole realm, for the end of his coming thither, as in the writ of his election appeareth, is general ad faciendum et consen- tiendum hiis quae tunc et ibidem de communi consilio dicti rcgni nostri, favente Deo, ordinari contigerint super negotiis praedictis ; id est, pro quibus- dam arduis et urgentibus negotiis nos, statum et defensionem regni nost-ri Angliae et ecclesiae Anglicanae concernenfibus, which are rehearsed before in the writ.' See also Hatsell, Precedents, ii. 76. 486 Constitutional History, [chap. Judicial right of the lords. Variety of usages. Different sorts of privilege. I. Sjjecial functions of the two houses. judicial position of the lords was scarcely better secured, if it were seriously maintained, as it was in the bill of 14 14 for the reversal of the judgment against the earl of Salisbury, that judgment by the lords with assent of the king is not lawful, but that it should be given by the king as sovereign judge, and by the lords spiritual and temporal with the assent of the commons in parliament, and not by the lords temporal only But how- ever this may have been, judicial work was apportioned to the lords, and financial work was ultimately secured to the commons. The difference of usage in the two houses, the difference in the powers of the speaker in each, the different rule of speaking, in the commons to the speaker, in the lords to the whole house, the different way of voting, and the other points in which the custom of the one varied from that of the other, have a history if we only knew it ; through the general likeness of pro- cedure minute traces of difference every now and then appear. In the wide and loose application of the word ' privilege,' the privileges or peculiar functions and usages of the house of lords are distinguished from those of the house of commons ; the privilege of individual members of the house of lords may be distinguished from the privileges of individual members of the house of commons; both again have common privileges as members of the parliament; and the lords have special privileges as peers, distinct fi'om those which they have as members of a house coordinate with the house of commons. Of the first of these distinctions no more need be said here than has already been stated ; the house of lords had judicial functions which the house of commons disavowed, although those functions could be exercised only during the session of parliament, that is whilst the commons were assembled ; and the house of commons developed financial functions which they took care to keep to themselves, although their acts did not become law until they received the assent of the lords. The house of lords had, as the king's great council, an organisation over and above its character as a house of parliament, and a continuity and personal identity which it was impossible for a representative 1 Rot. Pari. iv. 18. XX.] Proxies of the Lords. 487 chamber to secure. But these points are scarcely points of privilege, and they have been sufficiently illustrated already. The house of commons had, at the close of the period, neither raised nor attempted to raise a claim to the right, which afterwards was so fondly cherished, of determining questions of dispute in elections of its own members : the correspond- ing jurisdiction in the case of the lords was, so far as it was a matter of law at all, within the limits of their existing powers^. 772. Of the matters that fall under the second head the 2. Special rights of the following are the most important. Every lord had, from the lords, earliest times to a very recent date, when the privilege was voluntarily laid aside the power of appointing a proxy to give his vote. This was done by royal licence, which was very The right of seldom refused. The power of appointing a procurator or proxy p^xy?^^"^ * was sometimes given and sometimes withheld by the terms of the writ Thus in the summons of the assembly in which the prince of Wales was knighted in 1306 permission is given; in the writ for the parliament of March 1332 proxies are positively ibrbidden. The usage extended even to the permission for the proxy or power of attorney to be given to a person who was not himself a member of the house ; in the parliament of Carlisle in 1307 a baron Eeginald de Grey was represented by his attorney, Thomas of Wytnesham. Among the records of the reign of Edward II are numerous letters of proxy from bishops and barons to laymen and clerks, which on some occasions must have reduced the chamber of the lords to the position of a repre- sentative assembly^. In 1315, for instance, the proxies of both ^ See the dispute between the earls of Warwick and Norfolk on prece- dence ; Lords' Fifth Report, p. 198: and tliat between the earls of Devon and Arundel in 1449 ; Rot. Pari. v. 148. It was in the latter case that the judges declared that such cases belong for decision to the king and the lords. ^ In 1868 ; May, Treatise on the Parliament, p. 370. 2 A list of the occasions on which the permission to appoint proxies is withheld is given by Elsynge, Method and Manner, &c. p. 117; see also Lords' Report, iv. 408. * Pari. Writs, i. 166 ; the forms of proxy then used are given in the same place. ^ Proxies for the parliament of York in 1322 are given in Pari. Writs, 11. i. 248 ; cf. pp. 264 sq., ■296-299. 488 Constitutional Kistory. [chap. Proxies of barons and prelates were accepted as a substitute for their per- the lords. ^ \ -, i • , sonal attendance, and the practice became very common. Originally the permission may have been given merely to bind the absent person to the decisions of those who were present ; or to excuse his absence. But it speedily acquired a much greater importance. The earl of Warenne, in 1322, appoints Sir Ralph Cobham and John Dynyeton, clerk, to speak and treat in his place in the parliament of York, and to assent to all that shall be agreed on by his peers for the honour of the king and the benefit of the people. And it was no doubt in such a sense that they were admitted or licenced by the kings \ The proxies of the absent lords were read on the day of the opening of parlia- ment The restriction of the exercise of this power, by limiting the choice of a proxy to members of the house, grew up later, and its history has not been minutely traced. It was however in full use in the sixteenth century. Proxies not The privilege of appointing a proxy does not seem to have house of ^ ever belonged to the members of the house of commons, although, if we consider the frequency of such usage in the equally representative house of the clergy, the rule that a delegate cannot make a delegate would hardly exclude the possibility ^ In the parliament of 1406 the speaker proposed to the king that, as Richard Cliderhow, one of the knights for Kent, had gone to sea as an admiral, his fellow knight, Robert Clifford, should be allowed to appear in parliament in their two names as if they were both present To this the king agreed, but the ^ Archbishop Reynolds in 1322 makes two bishops his proctors; Pari. Writs, II. i. 284. In 1347 the earl of Devon is released from the duty of attendance, and allowed to send a proxy to do all that he could have done if he had been present; Lords' Report, iv. 562. See other examples, ib. p. 593; Prynne, Reg. i. 116-120, 214, &c. Madox, in the Formulare Anglicanum, gives two proxies (Nos. 625, 626), one of lord de la Warr, in 2 1 Hen. VIII, to lord Berkeley ' ad tractandum et communicanduu), necnon ad consentiendum vice et nomine meis ' ; the other given by the abbot of Colchester to two abbots. The proxies of 1322 are ' ad tractan- dum, providendum et ordinandum.' 2 See the Roll for 1380, Rot. Pari, iii, 88 ; and the Lords' Journals for the reign of Henry VIII., vol. i. p. 4. ^ Instances of proctors appointed with a power of appointing a proxy will be found in Pari. Writs, i. 186. * Rot. Pari. iii. 572. XX.] 'Right of Protest, 489 example was not followed : nor are there instances, except per- Suppie- haps in the case of the city of London ^, in which the counties Sembers. or towns elected more than the due number of representatives so that in case of sickness one might take another's place ; a practice not unusual in the election of clerical proxies. 773. A second important right of the individual lords was Right of that 01 recording a protest against acts of the house with wnicn to record a they did not agree ; no such power has been exercised by the P^*^*^®^** commons. In the upper house the early examples are those of the episcopal protests against the legislation on provisors and praemunire which are recorded in the rolls or even in the statute itself. These again seem to look back to the days when a baron declined to recognise legislation to which he had not personally consented ^. The more general practice of protests by the lords dates from the seventeenth century. It is difficult to find any- thing in the powers of members of the lower house which can be set against these practices, of proxy and protest, and it is perhaps a mistake to call them privileges at all. 774. The third head comprises some very important points ; 3. Privileges for upon the possession of the common privileges of the houses the two • • llOVlS6S* and their individual members hangs their real independence and the national liberty. Both houses possess the right of debating freely and without interference from the king or from each other. This is secured to the house of commons and to the Privilege members collectively by the king's promise to the speaker : and he would have been a bold king indeed who had attempted to stop discussion in the house of lords. Invaluable as the privilege is, it is not susceptible of much historical illustration, and it must suffice to recur to the parliamentary history of the reigns of Kichard II and Henry IV. The punishment of Haxey was annulled as a violation of the liberties of the commons ^ : Sir ^ See above, p. 459 note. ^ See above, vol. ii. p, •245. 3 • De volunte du dit roy le dit Thomas estoit adjugez traitour, et for- faita toutz q'il avoit, encontre droit et la curse quel avoit este devant en parlement ' ; Rot. Pari. iii. 430 : it was also ' en anientisement des cus- tumes de lez communes ' ; ib. p. 434 : and the petition requires his resto - ration ' si bien en accomplissement de droit come pur salvation des libertez 490 Constitutional History. [chap. dSfssSn^ Arnold Savage prayed, but in no very humble tones, that Henry IV would not listen to representations of what the commons were doing ; and the king promised to credit no such reports ^. A few years later, in his undertaking to hear the money grants from the speaker only, he declared that both lords and com- mons were free to debate on the condition of the kingdom and the proposed remedies^. But the very nature of an English * parliament repelled any arbitrary limitation of discussion, and the obsequious apology of the commons for allowing Haxey's bill to pass may be said to stand alone in our early annals. The debates were certainly respectful to the kings ; of their freedom we can judge by results rather than by details. The commons could speak strongly enough about| misgovernment and want of faith ; and the strongest kings had to bear with the strongest Never in- reproofs. Interference with this freedom of debate could only ahSy'^^ be attempted by a dispersion of parliament itself, or by com- dissolution. p^^igjQjj exercised on individual members. Of a violent disso- lution we have no example ; the country was secured against it by the mode of granting supplies. The compulsion of individual members comes under the second sub-division of this head. Of interference of one house with the debates of the other we have no medieval instances. Security That individual members should not be called to account for Mngement their behaviour in parliament, or for words there spoken, by sionused^" authority external to the house in which the offence was members!^^^ seems to be the essential safeguard of freedom of de- bate. It was the boon guaranteed by the king to the speaker when he accepted him, under the general term, privilege ; and has since the reign of Henry VIII been explicitly demanded on the occasion ^. The power of the crown to silence or punish a hostile or too independent member, however opposed that power may be to the spirit of the constitution, is better illustrated in medieval precedent than the power of the parliament to resist de lez ditz communes.' The reference to the commons is not repeated in the act of rehabilitation ; p. 430. ^ See above, p. 29. ^ See above, p. 61. 3 See above, pp. 454, 455. XX.] Arrest of Speakers, 491 the breach of privilege. Three prominent instances stand out instances at three important epochs, in which the speaker himself, or the of the person who fulfilled the duties that afterwards devolved on the ^P^^®^' speaker was made the scapegoat of the house of commons. In 1 301, after the parliament of Lincoln, at which he had been outrageously worried by the opposition of the estates, Edward I sent to the tower Henry Keighley, the knight who had pre- Henry sented to him the bill of articles drawn up in the name of the whole community^. "We learn from his own letter on the subject that the measure was dictated by policy rather than by vindic- tive feeling ; the prisoner was to be kindly treated and made to believe that mercy was shown him at the instance of the minister whom he had attacked. There is no record of any action taken either in or out of parliament for his release, but he is soon after found in public employment as a commissioner of array and justice of assize. The second case is that of Peter Peter de I de la Mare, the prolocutor of the good parliament of 1376, who was thrown into prison by John of Gaunt for his conduct in that assembly ^. The arrest, although prompted by a faction, must have been executed in the form of law. The vindication of Peter de la Mare was undertaken, not by the parliament, which was indeed defunct, but by the citizens of London, who rose in tumult and demanded for him a fair trial ; in the suc- ceeding parliament, which was elected under the influence of John of Gaunt, a minority of the knights made an attempt to obtain his release and a legal trial. He remained in prison until the death of Edward III, was released by Hichard II, and almost immediately elected speaker in the first parliament of that king. The third case is that of Thomas Thorpe, the speaker of Thomas the parliament of 1453; consequence of his opposition ^^°'^^^* to the duke of York was prosecuted on a private pretext, cast for damages on the verdict of a jury, and sent to the Fleet during a prorogation of parliament. The imprisonment of Thorpe, like that of Peter de la Mare, was the act of a faction, ^ See vol. ii. p. 151, and above, p. 453. 2 See vol. ii. pp. 435, 440. 492 Constitutional History. [chap. Arrest of legally carried into execution, but primarily intended to silence Thorpe the ^ '' t i-rv n ^ ^ p speaker. a dangerous enemy. It difiered from the former case as occur- ring during the actual existence of parliament and not after its close. Thorpe was a member, and speaker at the time of his imprisonment, and the privilege of members was directly touched in two points, freedom of speech and freedom from arrest. When the parliament met after prorogation the commons demanded their speaker ; they sent to the king and the lords requesting that they might have and enjoy their ancient and accustomed privilege, and in accordance therewith that Thomas Thorpe and Walter Rayle, who were then in prison, might be set free for the dispatch of the business of parliament. The counsel of the duke appeared before the lords to oppose the application ; he gave his account of the circumstances of the arrest, and urged moreover that the arrest had been made in vacation. The lords, not intending to 'impeach or hurt the liberties and privi- Discussion le^^es of the commons,' asked the opinion of the iustices, who of privilege. . ' ^ . . ' , said ' that they ought not to answer to that question, for it hath not been used aforetime that the justices should in anywise de- termine the privilege of this high court of parliament ; for it is so high and so mighty in its nature that it may make law, and that that is law it may make no law, and the determination and knowledge of that privilege belongeth to the lords of the parlia- ment and not to the justices.' They proceeded however to state that there was no form of 'supersedeas' that could stop all pro- cesses against privileged members, but that the custom was, if a member were arrested for any less cause than treason, felony, breach of the peace, and sentence of parliament, he should make The question his attorney and be released to attend in parliament. The lords shclvGcl* declined to suggest this course; they determined that Thorpe should remain in prison ; and the commons were ordered in the king's name to elect a new speaker. The case was treated as a simple case of arrest, political reasons were kept out of sight, and the commons found that they had no remedy ^. Besides these instances of arrest of the speaker, two other * See above, pp. 164-166; Kot. Pari. v. 227, 240, 295, &c. ; Hatsell's Precedents, i. 31-34- XX.] Freedom of Delate. 493 famous cases are found, in which a similar summary method Arrest of was adopted for the punishment of other offenders : the case oflFenders. of Haxey in 1397 and that of Yonge in 1455. The former has been frequently adverted to already. He had brought into the Haxey's . case. house of commons a bill which reflected censure on the king and court ; that bill had come to the king's knowledge ; he demanded, and the commons with a humble apology gave up, the name of the proposer; how the bill got into the house we do not know, for Haxey was a clergyman, not a member of the house, and although, if he were a clerical proctor, he might have de- manded the same privilege as a member, no such claim was raised for him. He was imprisoned, condemned, claimed by the archbishop as a clerk, and pardoned. In this case there is a direct interference of the king with freedom of debate in the commons apart from the question of right of freedom from arrest. The commons did not show, and probably did not see that they ought to have shown, an independent spirit on the occasion. The case of Thomas Yonge or Young, the member for Bristol, Case of who proposed in the parliament of 1451 that the duke of York Yonge. should be declared heir to the crown, is not free from obscuri- ties of its own \ In the records of parliament it appears only in a petition presented by him to the commons in 1455, in which he reminds them of their right that all members ' ought to have their freedom to speak and say in the house of their assembly as to them is thought convenient or reasonable without any manner challenge, charge, or punition therefore to be laid to them in anywise.' Notwithstanding his privilege he had, in consequence of untrue reports to the king, been imprisoned in the Tower, and endamaged to the amount of a thousand marks. He asks the commons to pray the king and lords to procure him compensation. The commons sent up the bill to the lords, and the king ordered that the lords of the council should provide a remedy. Here we have only the complainant's account of the matter ; it is no doubt substantially true, but the exact grounds * See above, pp. 159, 174 ; Rot. Pari. v. 337. 494 Constitutional History. [chap. on which the arrest was made are not stated. Matter of privi- lege as it was, the prayer is for personal and private indemnity : the commons seem to have no remedy but petition, and no atonement is offered to their injured dignity. So the case stands in the last years of the Lancastrian rule. Immunity 775. These instances all really fall on common ground be- of members . . . ^ from per- tween two great points of privilege — freedom of speech and free- sonalmo- ,^ rriii «T lestation dom from arrest. The latter is the guarantee of the former, but and arrest. i •! • • . n it has inevitably a much wider operation, is practically more de- fensible, and accordingly is technically more definite. What must be said about it here must be confined to the cases of the members of the house of commons : the peers had a similar immunity on other grounds. From the very earliest times the persons of those who were on their way to the king's court and council bad a sort of sanctity such as is recognised in an ambas- sador. By the law of Ethelbert, ' if the king call his " leod " to him, and any one there do them evil,' the offender must make double satisfaction to the injured person and pay a fine to the king ^. Canute wills, in a law which must have had a still wider application, ' that every man be entitled to grith to the gemot and from the gemot except he be a notorious thief The laws ascribed to Edward the Confessor recognise a particular immunity for persons going to and from the synods ^. After the institution of writs there was no occasion for such enactments to be repeated. All members going to or returning from parlia- ment were under the prescriptive protection of the king who summoned them. So long as the parliaments were annual and short the protection secured by this rule was, however import- ant, of no very wide or protracted extent. The early cases of the breach are therefore less important than the later : when a parliament subsisted for great part of a year, or was pro- rogued at short intervals and for formal sessions, the immunity became personally more valuable. The principle as just stated * Ethelbert, § i ; Select Charters, p. 60. 2 Canute, § 83 ; of. Edw. Conf., § 2 ; Select Charters, p. 73. ^ LI. Edw. Conf. art, 2, cl. 8 : this privilege is recognised whether the person in question has been summoned or goes on his own business. XX.] Freedom from Arrest, 495 involves two issues : the protection of the member from illegal Members molestation and the protection of the member from legal arrest, from per- As to the first of these, the special privilege could be asserted lestation. only by making the injury done to the individual an injury done to the liouse of which he is a member, and so visiting the offender with additional punishment. On this point it is not necessary to enlarge ; it has been since the reign of Henry IV a matter of law ; and that law singularly in concordance with the law of Ethelbert. The Statute of 5 Henry IV, c. 6, lays Chedder's down the rule in the special case of Richard Chedder, a member's servant, who was beaten and wounded by one John Savage : Savage is to surrender in the King's Bench, and in default to pay double damages besides fine and ransom to the king ^. By Legislation a general enactment, 11 Henry VI, c. 11, the same penalty, which is identical with that of Ethelbert, is inflicted in case of any affray or assault on any member of either house coming to parliament or council by the king's command ^. Several such cases of violence are reported ^. The modern importance of this point lies, as a point of privilege, rather in the threat of violence than in the actual infliction. The other point, the protection of the members of parliament Protection and their servants from arrest and distress, from being im- arrest.^^^ pleaded in civil suits, from being summoned by subpoena or to serve on juries, and their privilege in regard to commitments by legal tribunals, rests in each particular here enumerated on the supreme necessity of attending to the business of parlia- ment, the king's highest court. The several particulars concern matters of legal detail with which we are not called on to meddle. But some of the leading and most illustrative instances of the prescription are found in medieval records. Some of these have been noticed already in relation to freedom of speech and debate. In 1290 Edward I laid down the rule that it was not becoming for a member of the king's council to be distrained ^ Stat. 5 Hen. IV, c. 6 ; Statutes, ii. 144; Eot. Pari. iii. 542. 2 Stat. II Hen. VI, c. ii ; Statutes, ii. 286 ; Rot. Pari. iv. 453. ^ See for instance, Swynerton's case, Rot. Pari. iii. 317 ; cf. Hatsell, Precedents, i. 16, 26, 73, &c. 49^ Constitutional History, [chap. Writs of in time of parliament^. In 13 14 Edward II issued two general supersedeas. ^^.^^ superseding during the session all writs of taking assizes, juries, and certificates touching any member of either house ; and in 1 3 1 5 he marks the arrest of the prior of Malton on his way from parliament as an act done in contempt of the king, in prejudice of the crown, in damage of the prior and against the king's peace. Security of The immunity was held to extend to the servants of mem- SrvMite! hers, and a petition of the commons in 1404 declares that the custom of the realm protects them as well as their masters from arrest and imprisonment, although they pray that such custom may be established by statute. The king's answer is, that there is sufficient remedy in such cases, which seems to amount to a refusal of the petition ^. Means of The recognition of the right, however ancient and full the the*righS admission may have been, was a very different thing from the power of enforcing it ; and the house of commons seems to have had no means of doing this but by petition, or by obtaining a writ of supersedeas. Besides the case of Thorpe, already men- tioned, the most prominent cases are those of William Lark in 1429*, and Walter Clerk, burgess for Chippenham, in 1460 ^ Lark's case. Lark was the servant of William Milrede, member for London, and had been arrested at the suit of Margery Janyns, com- mitted to the Fleet prison by the Court of King's Bench, and there detained for damages. The commons petitioned that in consideration of the privilege of members securing them against arrest except for treason, felony, or breach of peace. Lark might be liberated during the session of parliament ; and that the custom claimed for the commons might be established by statute. The king rejected the last petition, but ordered the release of Lark, securing to Margery her rights after the close of the session^. In the case of Clerk, who had been arrested for a * See Hatsell, Precedents, i. 3 ; Coke, 4tli Inst. p. 24 ; Prynne, Eeg. iv. 820, &c. ^ See Rot. Pari. i. 449, 450 ; Hatsell, Precedents, i. 6, 7. ^ Rot. Pari. iii. 541 ; Hatsell, Precedents, i. 13. * Rot. Pari. iv. 357. ^ j^id. v. 374. * Hatsell, Precedents, i. 17-22. XK.] Freedom from Arrest. 497 fine to the kinpj and damaojes to two private suitors, and after- Case of . . Walter wards imprisoned and outlawed, the commons petitioned thatcierk. the chancellor might order his release by a writ to the warden of the Fleet, saving the rights of the parties after the dissolu- tion. This the king granted \ These however are only two out of a large number of like precedents. Another famous case Atwjll's occurred in 1477; that of John Atwjdl, member for Exeter, against whom several writs of arrest had been obtained at the instance of a private litigant. The commons petitioned that writs of supersedeas should be issued in each case, saving the rights of the suitor after the close of the session. In this case it is observed that, although the commons claim a right to the suspension of the writ of execution, they do not insist on redress for the impleading of a member during the session as a breach of privilege ^. The condition of affairs at the end of the reign Statement^ of Edward IV is thus stated : — ' When a member or his servant at the close has been imprisoned, the house of commons have never pro- ceeded to deliver such person out of custody by virtue of their own authority ; but, if the member has been in execution, have applied for an act of parliament to enable the chancellor to issue his writ for his release, or if the party was confined only on mesne process, he has been delivered by his writ of privilege to which he was entitled at common law ^/ The privilege was in no case extended to imprisonment for treason, felony, or for security of the peace : it was loosely allowed to the servants in attendance on members, and it was claimed for a period of time preceding and following as well as during the session. The length of this period was variously stated, and has not been legally decided. The general belief or tradition has established the rule of forty days before and after each session. 776.. The special privileges of peers of the realm were Privileges sufficiently numerous, but only those need be noticed here ° P^ers. which are connected or contrasted with those of the house of commons. The peers have immunity from arrest, not merely ^ Hatsell, Precedents, i. 34-36. Kot. Pari, vi, 191 ; Hatsell, Preeedeuts, i. 48-50. ' Hatsell, Precedents, i. 53. * VOL. III. K k 49 8 Constitutional History. [chap. Immunities as members of the house, but as barons of the realm; their of peerage. • . m Wives have the same privilege, and, under the statute of 1442, the right to be tried like their husbands by their peers. The duration of the immunity is not limited by the session of par- liament, but the person of a peer is ' for ever sacred and invio- lable.' Yet this protection is only against the processes of com- mon law, and, notwithstanding the dignity of peerage, instances of imprisonment for political causes and on royal warrants are far more numerous in the case of peers than of members of the house of commons. This then is not a privilege of parliament, and has no relation to any immunity resting on the summons or writ of the king, although, as the peers are hereditary and Minute and perpetual counsellors, it has a corresponding validity. The privileges, right of killing venison in the royal forests, allowed by the Charter of the Forests, the right of obtaining heavier damages for slander than an ordinary subject ^, and all the rest of the invidious privileges which time has done its best to make obso- Right of lete, may be left out of sight. The only other important right access to the . • ^ o 1 t ,11 • sovereign. 01 peerage IS that 01 demanding access to the sovereign ; a privilege which every peer has, which the ordinary subject has not, and which the member of the house of commons can demand only in the company of his fellow-members with the speaker at their head. There have been times when this right or the suspension of it were important political points : it was by estranging Edward II from the society of his barons that the Despensers brought about his downfall and their own ^ ; and Richard II, in the same way, held himself aloof from the men who hated and despised him ^. This was the right the refusal of which provoked Warwick to fight at S. Alban's and at Northampton But history in this, as in all the previous in- stances of privilege, has to dwell on the breach rather than on the observance. In another chapter we shall have to attempt to trace the social as distinct from the legal and technical working of ^ 2 Rich. II, c. 5. 3 See above, vol. ii. p. 473. ^ See above, vol. ii. p. 347. * See above, pp. 170, 183. XXI.] Co7iclusion. 499 the influences here exemplified in matters of ceremony, form, and privilege ; influences which have constantly tended to place the house of commons and its members on a footing of firm and equal solidity with the house of lords, to extinguish invidious and vexatious immunities, and to produce for all poli- tical and national purposes something like a self-forgetting and sympathetic harmony of action. • K k 2 CHAPTER XXL SOCIAL AND POLITICAL INFLUENCES AT THE CLOSE OF THE MIDDLE AGES. 777. Plan of the chapter. — 778. Variations of the political balance throughout English History. — 779. The Kings: — popular regard for the Plantagenets. — 780. Growth of loyalty. — 781. Doctrine of legitimism. 782. Material and legal securities. — 783. Extent of the royal estates. — 784. Religious duty of obedience. — 785. Fealty, homage, and allegiance. — 786. Law of Treason. —787. The Clergy. —788. Weakness of their spiritual position. — 789. Weakness of their temporal position. — 790. The Baronage : — their wealth and extent of property. — 791. Their territorial distribution. — 792. Class distinctions. — 793. Livery and maintenance. — 794. Heraldic distinctions. — 795. Fortified houses and parks. — 796, Great households. — 797. Service by indenture. — 798. Good and evil results of baronial leadership. — 799. Baronial position of the bishops. 800. The Knights and Squires. — 801. Their relation to the barons. — 802. Inde- pendent attitude of the knights in parliament. — 803. The Yeomanry.— 804. Expenditure of the squire and tenant farmer. — 805. The valetti in parliament. — 806. The yeomen electors. — 807. The Boroughs. — 808. The merchant guild and its developments. — 809. Constitution of London. — 810. Importance and growth of companies. — 811. Other municipalities. — 812. Politics in the boroughs, and of their representatives. — 813. Political capabilities of country and town, merchant, tradesman, and artificer. — 814. The life of the burgher. — 815. Connexion with the country and with other classes. — 816. Artisans and labourers. — 817. The poor. — 818. The villeins. — 819. The chance of rising in the world. Education. — 820. Class an- tagonisms.— 821. Concluding reflexions. National character. — 822. Tran- sition.— 823. Some lessons of history. * Factors of 777. The great changes which diversify the internal history hfs^o^/ of a nation are mainly due to the variations in the condition and relations of the several political factors which contribute to that history : their weight, their force and vitality, their mutual Men and Principles. 501 attraction and repulsion, their powers of expansion and con- The causes traction. The great ship of the state has its centre of gravity th^cSfge^ as well as its apparatus for steering and sailing, its machinery history, of defence, and its lading. And it is upon the working of these factors that every great crisis of national life must ultimately turn. Great men may forestall or delay such critical changes; the greatest men aspire to guide nations through them; sometimes great men seem to be created by or for such conjunctures ; and without a careful examination of the lives of such men, history cannot be written. But they do not create the conjunctures : and the history which searches no deeper is manifestly incomplete. In the reading of constitutional history this is a primary con- dition : we have to deal with principles and institutions first, and with men, great or small, mainly as working the institutions and exemplifying the development of the principles. As in- Method of stitutions and principles, however much they may in the abstract SpSd"* be amenable to critical analysis, can be traced in their operation and development only in the concrete, it is necessary to divide and rule out the design of historical writing by the epochs of reigns of kings and the lives of other great men. A perpetual straining after the abstract idea or law of change, the constant ' accentuation,' as it is called, of principles in historical writing, invariably marks a narrow view of truth, a want of mastery over details, and a bias towards foregone conclusions. In adopting the method which has been used, however imperfectly, in this work, of proceeding historically rather than philosophically, this has been kept in view. "We have attempted to look at the national institutions as they grew, and to trace the less perma- nent and essential influences only so long as they have a bearing on that growth. The necessity of finding one string, by which to give a unity to the course of so varied an inquiry, has in- volved the further necessity of long narrative chapters and of much unavoidable repetition. The object of the present chapter Object of will be to examine into the condition and relation of the factors chapter, which produced the critical changes indicated in the preceding narrative, in those points in which they come less prominently forward, and to take up, as we proceed, some of the most Constitutional History. [chap. Object of significant aspects of the social history which underlies the poli- chapter. tical history. The variation of the balance, maintained between the several agencies at work in the national growth, will be regarded as the point of sight in our sketch, but the main object of the chapter will be the examination of the factors them- selves ; the strength, weight and influence of royalty ; the com- position, personal and territorial, of the baronage and gentry ; their political ideas and education ; the growth of the middle class and its relation to those above and below it; and the condition of the lowest class of the nation. It is obvious that only a sketch can be attempted ; it is possible that anything more ambitious than a sketch would contain more fallacies than facts. Various com- 778. Taking the king and the three estates as the factors of the the national national problem, it is probably true to say in general terms that, midSSe^ages! fi'^ni the Conquest to the Great Charter, the crown, the clergy, and the commons, were banded together against the baronage ; * the legal and national instincts and interests against the feudal. From the date of Magna Carta to the revolution of 1399, the barons and the commons were banded in resistance to the aggressive policy of the crown, the action of the clergy being greatly perturbed by the attraction and repulsion of the papacy. From the accession of Henry IV to the accession of Henry VII, the baronage, the people, and the royal house, were divided each within itself, and that internal division was working a sort of political suicide which the Tudor reigns arrested, and by arrest- ing it they made possible the restoration of the national balance. In such a very comprehensive summary of the drama, even the great works of Henry II and Edward I appear as secondary influences ; although the defensive and constructive policy of the former laid the foundation both of the royal autopracy which his descendants strove to maintain, and of the national organ- isation which was strong enough to overpower it ; and the like constructive and defensive policy of Edward I gave definite form and legal completeness to the national organisation itself. In the struggle of the fifteenth century the clergy, alone of the three estates, seem to retain the unity and cohesion which was XXT.] Balance of Forces in the State. 503 proof against the disruptive influences of the dynastic quarrel ; The Tudor but their position, though apparently stronger, had a fatal source of weakness in their alliance with or dependence on a foreign influence ; whilst the weakness of the crown and the people was owing to personal and transient causes, which a sovereign with a strong policy, and a people again united, would very soon reduce to insignificance. The crown was a lasting power, even when its wearers were incapable of governing ; tlie nation was a perpetual corporation, in nowise essentially aff'ected by personal or party changes ; whereas in the baronage personal Humiliation and constitutional existence were one and the same thing, and baronage, the blow that destroyed the one destroyed the other. Hence during the early days of the Tudor dictatorship, the baronage was power- less ; and the clergy and commons, although like the crown they retained corporate vitality, were thrown out of working order by the absence of all political energy in the remains of the other estate. The commons, having lost the leaders who had misled Apathy -1 . , , 1 . , ofthe them to their own destruction, threw themselves into other commons. work, and, ceasing to take much interest in politics, grew richer and stronger for the troubled times to come. The clergy, with- Dependence^ out much temptation to aggression and with little chance obtaining greater independence, seeing little in Rome to honour and nothing at home to provoke resistance, gradually sank into ^ complete harmony with and dependence on the king. And this constituted the strength of the position of Henry VIII : he had no strong baronage to thwart him ; he or his ministers had wisdom enough to understand the interests which were dearest to the commons ; the church was obsequious to his friendship, defenceless against his hostility. With the support of his par- Position of liaments, which trusted without loving him, and confirmed the ^^"""^ acts by which he fettered them, he permanently changed the balance between church and state and between the crown and the estates. He overthrew the monastic system, depriving the church of at least a third of her resources and throwing out of parliament nearly two thirds of the spiritual baronage^; he ^ The smaller monasteries were dissolved by the Act 27 Hen. VIII, 0. 28 ; after many of the larger houses had surrendered, the rest were Constitutional History. [chap. His tr^*^ broke the union between the English and Roman churches, and church; declaring himself her head on earth, left the English church^ altogether dependent on her own weakened resources, and suspended and practically suppressed the legislative powers of of the convocation He constructed a new nobility out of the ruins of the old, and from new elements enriched by the spoils of the church : a nobility which had not the high traditions of the medieval baronage, and was by the very condition of its crea- tion set in opposition to the ecclesiastical influences which had of the hitherto played so great a part. But with the commons Henry ' did not directly meddle : true he used his parliaments merely to register his sovereign acts ; took money from his people as a loan, and wiped away the debt by parliamentary enactment ^ ; took for his proclamations the force of laws, and obtained a Hhdictator- ' lex regia ' to make hira the supreme lawgiver ^ ; he arrested and tried and. executed those whom he suspected of enmity, demanding and receiving the thanks of the commons for his most arbitrary acts. That by these means he carried the nation over a crisis in which it might have suffered worse evils, is a theory which men will accept or reject according as they are swayed by tlie feelings which were called into existence by the changes he effected. Elizabeth carried on the dictatorship which her father had dissolved by the Act 31 Hen. VIII, c. 13 ; and the Order of the Hospitallers, by 32 Hen. VIII, c. 24. Colleges, chantries, and free chapels, were given to the king b}' i Edw. VI, c. 14. ^ This was enacted by 26 Hen. VIII, c. i : 'That the king our sovereign lord, his heirs and successors kings of this realm, shall be taken accepted and reputed the only supreme head on earth of the Church of England called Anglicana Ecclesia.' The exact terms had been discussed in Convoca- tion as early as 1531, and accepted in a modified form. 2 By the Act of Submission (25 Hen. VIII, c. 19), and the instrument signed by the clergy, May 15, 1532, it was declared that there should be no legi.-lati(m in Convocation without the king's licence, and that the existing canon law should be reviewed by a commission of thirty- two persons, half lay and half clerical. ^ Stat. 21 Hen. VIII, c. 24, and 35 Hen. VIII. c. 12. * Stat. 31 Hen. VIII, c. 8. 'That always the king for the time being with the advice of his honourable council may set forth at all times by the authority of this Act his proclamations . . . and that those same shall be obeyed observed ansons list of treasons was enlarged by the inclusion of some new under offences ; the man indicted, appealed, or arrested on suspicion of treason, if he escaped from prison, was declared guilty of treason ; the burning of houses in execution of a threat to ex- tort money, and the carrying off cattle by the Welsh marauders out of England, were made high treason^. These acts however illustrate rather the increasing severity of the law than the doctrine of treason itself, which received little legislative modi- fication during the rest of the period before us. The cruelties and severities of the Wars of the Eoses can hardly be held to prove anything as to the accepted doctrine on the point, any more than the attempts made earlier and later to extend the penalties of constructive treasons. Edward IV, greatly to his credit, refused to allow sacrilege to be made high treason ^. The Treason reign of Henry VIII has, as one point of bad pre-eminence, the Henry vill i-T'i., 1. r- 1 1 swept away multiplication 01 treasons ; and m most 01 the new treasons the by Mary, offence against the king's person again becomes the leading idea : the legislation of Mary, however severe on heresy, was more lenient in this respect, and by one act she swept away these monu- ments of the cruelties perpetrated under her father and brother. The legislation on treason is not an edifying episode of Practical our history, but it will bear comparison with the practice of the"S^s-^ other countries which did not possess our safeguards. As an treason" instrument for drawing the people to the king it had little or no result : the severities of the law did not retard the growth of loyalty any more than the legal perfections of the abstract king attracted the affections of the people. The child Richard and the baby Henry might be the object of sincere patriotic attachment to thousands who had never seen them ; but the law regarded them as the mainspring of the national ' I Hen. IV, CO. lo, 14; Stat, ii. 114, 116. 2 See Statutes, ii, 226, 242, 318; Kot. Pari. iv. 260, 349 ; v, 54. » Rot. Pari. V. 632. 520 Constitutional History. [chap. The ideal machine. "With no more conscious exercise of power than the diadem, or the great seal, or the speaker's mace, they enacted all the laws and issued all the writs on which the welfare and safety of the kingdom hung. In the boy Henry, as his council told him, resided the sum and substance of sovereignty ^ ; but the execution of all the powers implied in this was vested in his council. The ideal king could do all things, but without the counsel and consent of the estates he could do nothing. The exaltation of the ideal king was the exaltation of the law that stood behind him, of the strength and majesty of the state which he impersonated. It could be no wonder if now and then a king should mistake the theory for the truth of fact, and, like Richard II, should attempt to put life in the splendid phantom. And when the king arose who had the will and the power, the nation had gone on so long believing in the theory, that they found no weapons to resist the fact, until the factitious theory of the Stewarts raised the ghost of medieval absolutism to be laid then and for ever. Position of It is needless to recapitulate here the substance of our the close of former conclusions. The strength of the crown at the close of ages. the middle ages lay in the permanence of the idea of royalty, the wealth of the king, the legal definitions and theory of the supreme power : its position was enhanced by the suicide of the baronage, the personal qualities of the new dynasty, the political weariness of the nation, and the altered position of the kings in the great states of Europe. The place of Henry VII cannot be understood without reference to the events which, in France, Spain and Germany, were consolidating great dynastic monarchies, in the activity of which the nations themselves had little independent participation. But this marks the beginning of the new period, and its historic significance had yet to be divulged. Influence of 787. Second, but scarcely second, to the influence of the crown was the influence of the church, resulting to a great extent from the same historic causes and strengthened by ana- logous sanctions. In more ways than one the ecclesiastical * See above, pp. 104, 105. XXI.] Political Weight of the Clergy. 521 power in England was a conserving and uniting element. 1 he Territorial fi 1 1111 o t^ ^ • ^ „ influence of possessions 01 the clergy, the landed estates 01 the bishops, 01 tiie clergy, the cathedrals, and of the monastic communities, extended into nearly every parish, and the tithes and offerings which main- tained the beneficed clergy were a far larger source of revenue than even the lands. The clergy, and the monastic orders es- pecially, had been good farmers ; in early days the monks had laboured hard to reclaim the fens ; in somewhat later times the Cistercians had clothed the hills and downs with sheep, and thus fostered the growth of the staple commodity of medieval England. The clergy were moreover very mild landlords. Their wealth was greater tlian the king's ; their industrial energy and influence for a long period were unrivalled. To those who knew Their anything of the political history of the past, the church had claims, great historical claims to honour ; her champions had withstood the strongest and most politic kings, and her holiest prelates had stood side by side with the defenders of national liberty. The clergy had a majority of votes in the house of lords, without counting those of such lay lords as were sure to support their spiritual guides. They had also their taxing assembly in the Their con- convocation, a machinery which saved them from being directly poSion^*^ involved in the petty financial discussions of the parliaments. They furnished the great ministers of state, the chancellors with Their rare exceptions, and ordinarily the privy seal, who was the J^iJortoQce. chief minister of the council ; frequently the treasurer also was a clergyman. Although they may, from their numbers and character, present to modern thought the idea of a class of educated, rather than ordained, ministers, it is certain that they were thoroughly pervaded with class sentiment. Not that they Their corporate were tempted to assume a position which sectarian jealousy feeling, forced upon their successors, for until the close of the fourteenth century their monopoly of spiritual teaching was not imperilled by any serious competition ; they had had their struggle with the friars, but the friars had soon become as much a part of the ecclesiastical phalanx as were the endowed clergy themselves. The absence of such rivalry had not had the effect of diminish- ing the consciousness of corporate unity. However lightly Constitutional History. [chap Corporate feeling of the clergy. Jealousy with which their wealth was viewed. The national legislation only occa- sionally clerical. the obligations of holy orders lay on the medieval minister of state or official of the chancery, when it came to a question of class privilege or immunity, he knew where and how to take a side with his brethren. E^ich, wide-spread, accumulating for centuries a right to national gratitude, working in every class of society, the clergy were strong in corporate feeling and in the possession of complete machinery for public action. To this was added the enormous weight of spiritual influence ; if the sense of loyalty to the king was quickened by the arguments of religion, by the obligations of obedience, of fealty, homage, and allegiance, much more strongly and much more directly was the spiritual influence that applied those arguments effective in respect to the church. Nor was the temptation to use this influence to sustain the political and social position of the clergy altogether wanting ; for however safe their spiritual pre-eminence might seem, their wealth very early gave occasion for a jealousy which must have proved a strong stimulus to watchfulness. The Lollard attack on the temporalities, which no doubt sug- gested and prepared the way for the dissolution of the monas- teries under Henry VIII, was itself the growth of a long period during which kings and barons had looked askance on the terri- torial wealth of the religious orders. It would not have been surprising to find that, considering the strength and self-consciousness of the spiritual estate of England, considering the high place and great influence which it had held for so many centuries, the government of the country had become distinctly hierarchical, and that the legislation had shown those marks which are regarded as inseparable signs of clerical domina- tion. There are moreover proofs enough that, when and where there was adequate occasion, the right of the strong will could be asserted even against the right of the strong hand. The legislation against heresy is one great illustration of this ; the part taken by archbishops Courtenay and Arundel in the days of Richard II is another ; the grasp of political and official power in the hands of cardinals Beaufort and Bourchier is less significant, because in both cases their position was affected by their connexion with the conflicting dynastic parties ; and in the last Lancas- XXI.] Weakness of the Church. 523 trian reign the king was a more enthusiastic supporter of church privilege than were his prelates. But on the whole it Ecclesiasti- must be allowed that the ecclesiastical power in parliament St^semshly was not used for selfish purposes ; possibly the clergy regarded themselves as too safe to need the weapons of political priest- craft, possibly they saw that they must not provoke greater jealousy by aiming at more conspicuous power. If we may judge of the class by the character and conduct of the foremost men, they ought to have the full benefit of the admission which their bitterest critics cannot withhold. They worked hard for the good of the nation ; they did not forget the good of the church ; but they rarely if ever sacrificed the one to the other, whether their guiding line was drawn by confidence or by caution. We have discussed in an earlier chapter the drawbacks which Mischief must be taken into account in estimating their real weight in theSclesSs- the countrj^ ; especially the ever-spreading and rankling sore produced by the inquisitorial, mercenary, and generally disre- putable character of the courts of spiritual discipline : an evil which had no slight share in making the Reformation inevitable, and which yet outlived the Reformation and did its worst in alienating the people from the church reformed. But neither this nor the jealousy of ecclesiastical wealth, nor disgust at ecclesiastical corruption, nor the dislike and contempt with which men like More viewed the rabble of disreputable and super- fluous priests, nor the growth of a desire for purer teaching, would have determined the crisis of the Reformation as it was determined, but for the personal agency of the Tudors, Personal in- Henry VIII, Mary, and Elizabeth ; and the irresistible force of fhe Tudors that personal agency proved the weakness of the ecclesiastical ecdesiasttS position. The clergy had relied too much on Rome, and too^^^°°^^' much also on the balance of force between the other estates and the crown. ' Rome alone you will have ; Rome alone wiU destroy you,' Ranulf Glanvill had said to the monks of Canterbury ^ ; the prophecy was true of the monastic system, and it had a partial application to the whole medieval church system. ^ Gervase, Chron. c. 1544: 'Solam Romam quaeritis; sola Roma destruet vos.' 524 Constitutional History. [chap. Injuries done by the church of Eome to the church of England. The ecclesi- astical position weakened by the con- nexion. Weakness of the political position of the clergy. 788. In the first place the papal policy had taken the innate life and vigour out of the ecclesiastical constitution, and supplied or attempted to supply the place with foreign mechanism : lega- tions, legatine authority, appeals, dispensations, licences; the direct compacts between the crown and the popes to defeat the canonical rights of the clergy in the matters of elections ; all the policy which the statutes of praemunire and provisors had been intended to thwart, had fatally impaired the early idea of a self- governing churcli working in accord with a self-governing nation. The attempt to compel a universal recourse to Rome had destroyed the spiritual independence of the national episcopate ; and when the real strength of Rome, her real power to work good and carry into effect her own resolutions, was waning, the more natural and national power of the episcopate was gone beyond recall : it stood before Henry VIII, ' magni nominis umbra ' ; the monastic system fell at once ; the convocations purchased a continued and attenuated existence by an enormous fine : the facilities of doctrinal change and the weakness of the reformed episcopate proved that the religious sanction, which had so long been regarded as the one great stay of the ecclesiastical position, had been tasked far beyond its strength. Nothing in the whole history of the Reformation is so striking, and it is a lesson that ought never to be wasted upon later ages, as the total uncon- sciousness apparent in even such men as Warham, Tunstall and Fisher, of the helplessness of their spiritual position, the gulf that was opening beneath their feet. 789. In the second point, that of their political security, the prelates of the sixteenth century were scarcely more upon their guard ; although they might have learned to mistrust their political position when they saw the apathy of the commons and the collapse of the baronage. Here they knew that they had no spiritual sanction to fall back upon : their stronghold was that office of mediation wliich they had so long sustained ; the function of mediation ceased when all rivalry had ceased between the forces between which it had acted. When the crown was supreme in wealth, power and policy ; when the commons were bent on other work and had lost XXI.] The Baronage. 525 their political leaders; when the baronage was lying at the feet of the king, perishing or obsequious ; when in other lands absolutism was set up as the model government of a full-grown nationality ^, — the medieval church of England stood before the self-willed dictator, too splendid in wealth, fame and honour, to be allowed to share the dominion that he claimed. It was Fall of the T 1 • p church no longer a mediator, but a competitor for power : the royal before the self-will itself furnished the occasion for a struggle, and the political claims of the church proved their weakness by the greatness of the fall. 790. The historical position and weicfht of the barona2;e, the Points in the , , P „historyof variations of the baronial policy, the changes in the form of the nobility, qualification, and in the numbers of the persons composing the house of lords, have formed an important part of our last chapter. But some points, such especially as may help to com- plete our view of the comparative influence exercised by the several powerful elements of society, and their powers of attrac- tion and repulsion as affecting the mass of the nation, may be briefly treated in this place. However highly we may be inclined to estimate the Extent of extent of royal and ecclesiastical property, it is difficult to siotS.^^"^^^ overrate the quantity of land which during the middle ages remained in the hands of the great nobles. Encumbered and impoverished, in many instances, it undoubtedly was by the burdens of debt, heavy settlements and the necessities of a splendid expenditure; but these drawbacks only slightly aff'ected the personal influence of the several lords over their tenants and neighbours. Although these estates were unequally Difference of distributed, and it would be hazardous to infer from the mere partiai?y^ title of earldom or baronage any very definite proportion ofdfffereuce property, it may be generally held to be true that there was a wide gap between the poorest of the barons and the wealthiest of the class next below them ; and between the earls and the ^ ' They blame Lewis XI for bringing the administration royal of France .from the lawful and regulate reign to the absolute and tyrannical power and government. He himself was wont to glory and say that he had brought the crown of France Aors de 'page, as one would say, out of ward- ship ' ; Smith, Commonwealth, bk. i. c. 7. Constitutional History, [chap. Pecuniary estimates of the dif- ference in ranks of nobility. Illustration from the Black Book of Edward IV. barons, as a rule, there was a very marked difference. The higher ranks in the peerage did not necessarily imply a great superiority in wealth. The history of the fourteenth and fifteenth centuries furnishes many instances in which a pecu- niary estimate was set upon the difference of degrees. Thus in 1379, in raising contributions for the maintenance of the garri- sons in France, a duke paid a poll tax of £6 135. ^d. ; an earl £4; barons, bannerets and wealthy knights £2 ^. In 1454 the fine imposed on a duke or archbishop for non-attendance in parliament was fixed at £100, that of an earl or bishop at 100 marks, and that of a baron or abbot at £40 ^. The creation money, as we have seen, varied in regular proportion ; the duke had an allowance of £40, the marquess £35, the earl £20, and the viscount 20 marks ^. The substantial endowment secured to the king's sons, and to friends who were suddenly promoted from an inferior rank, affords a better clue to the distinctions made. In 1386 a pension of £1000 per annum was secured to each of the two new dukes of York and Gloucester, until lands of the same annual value could be found for them In 1322 Sir Andrew Barclay had a similar annuity of 1000 marks on his creation as earl of Carlisle. William Clinton had 1000 marks when he was made earl of Huntingdon in 1336 ; and there are many other instances ^. But perhaps the most curious illustration of the point will be found in the document known as the Black Book of Edward IV, in which the arrangements for the households suitable to the several ranks are drawn out 1 Eot. Pari. iii. 57. 2 j>ot. Parl. v. 248. ^ See above, pp. 434 sq. ; proofs will be found in the Acts of Creation given in the Lords' Fifth Report ; the duke of Clarence in 141 1 has £40, p. 169 ; of pp. 182, 242, 243 sq.; the marquess of Dorset in 1397 has 35 marks, p. 117 ; in 1443, £35, p. 240; the marquess of Montague in 1473 has £40, p. 378; the earl of Cornwall in 1330 had £20, p. 21; the viscount of Beaumont 20 marks, p. 235, of p. 276 ; Thomas Percy, baron of Egremont, £10, p. 273. * Lords' Fifth Report, pp. 64, 65 : see also the case of the duke of Exeter in 1416, ib. p. 182 ; cf. Madox, Bar. Angl. p. 146. ^ Lords' Fifth Report, pp. 18, 28. The earl of Stafford has an annuity of 600 marks, p. 146 ; Guichard d' Angle, earl of Huntingdon, 1000 marks, p. 61 ; John Holland, earl of Huntingdon, the king's half brother, 2000 marks, p. 83 ; the earl of Rutland 800 marks, p. 84 ; Ralph Boteler, baron Sudeley 200 marks, p. 239. XXI.] Comparison of Ranks. 527 in a tabular form. There the annual outlay of the king on his Proportion- ateexpendi- household is estimated at £13,000, that of a duke at £4000, tureof peers, that of a marquess at £3000, that of an earl at £2000, that of ^ a viscount at £tooo, that of a baron at £500, that of a ban- neret at £200, that of a kniglit bachelor at £100, that of a squire at £50 \ In the time of Elizabeth, Sir Thomas Smith estimated the becoming provision for a barony at 1000 pounds or marks a year and the higher grades in proportion ^. These sums however bear very little relation to the real dif- Territorial • 1 /, T • T i • 1 acquisitions ferences in the amount of property and accompanymg political of the great interest which existed among the great lords. The duchy of Lancaster grew by the accumulation of royal grants and the marriage of heiresses to an extent rivalling the official demesne of the crown ; and the duchy of Norfolk grew in the same way. The fortunes of the Nevilles and Percies were the result of a long series of well-chosen marriages, and were in no way inferior to those of the dukes and marquesses. In the later part of the period the duke of Buckingham rivalled, in the number of his estates and dignities, the honours of John of Gaunt or Henry IV. The kingmaker Warwick was content to remain an earl. The Result of the ... . . multiplica- result of the multiplication of dignities was not altogether tion of ranks, wholesome; they might not have much meaning as denoting political power or property, but they involved, what in a half barbarous society was almost as precious, certain signs of pre- cedence ; and thus they added occasions for personal jealousies and rivalries of which there were too many already. Taken in the aggregate the landed possessions of the baronage were more than a counterpoise to the whole influence of the crown and the other two estates of the realm : fortunately for public liberty their influence was in great measure nullified by personal and family rivalries. 791. It would be an easy task, if we possessed a map of 1 Published by the Society of Antiquaries among the Ordinances of the Royal Household, pp. 15-35. ^ Commonwealth, book i. c. 17 : 'In England no man is created a baron except he may dispend of yearly revenue one thousand pounds or one thousand marks at the least ; viscounts, earls, marquesses, and dukes, more according to the proportion of the degree and honour.' 528 Co7istitutioml History. [chap. \ A medieval feudal or medieval England, to determine the amount of local map wan e -jj^^^gj^pg possessed by the great houses, and to see how the line taken in the hereditary and dynastic quarrels was affected and illustrated by their relations to one another. In default of such Local influ- a ffuide we must content ourselves with generalities \ Of the encesofthe ° , , . . p , earldoms, earls as they were at the beginning of the fifteenth century, the titles in many cases still point to their chief centres of interest. The strength of the Courtenays lay in Devon, that of Arundel in Sussex, that of the earl of Salisbury in Wiltshire and Dorset- shire, that of the earl of "Warwick in Warwickshire. But this rule was not without exceptions; the strength of the earl of Oxford was in Essex, and that of the earl of Kent in the lord- ship of the Wakes in Yorkshire and Lincolnshire. Nor was the local influence of the earls at all confined to their chief seats of power ; the Percy was dominant not only in Northumberland, but in Yorkshire, and in Sussex also, where the lord of Petworth was a match for the lord of Arundel. In Essex again the earl of Oxford was strong, but the earldom of the Bohuns was strong Stronger also. There was a marked difference between the stronger earldoms, earldoms like those of the Bohuns, the Clares and the Bigods, on which the dukedoms were founded, and the smaller accumu- lations of the Veres and Montacutes of Oxford and Salisbury ; and no doubt similar influences affected the baronies, although in less conspicuous degrees. Local distri- Of all the counties, Yorkshire, as might be expected, contained the great the greatest number of the great lordships : there, not to men- lordships. ^.^^ minor cases, were Bichmond the chief seat of the Breton earls ; Topcliffe the honour of the Percies, Thirsk of the Mow- brays, Tanfield of the Marmions, Skipton of the Cliffords, Mid- dleham of the Fitz-Hughs and Nevilles, Helmsley of the Boos, Masham and Bolton of the two Scropes, Sheffield of the Fur- nivals and Talbots, and Wakefield of the duke of York; there too were numerous castles and honours that united to form the great Lancaster duchy. In Lincolnshire were the homes of Cromwell, Willoughby and AVells. Further north Cumberland supplied the ^ These statements may be verified by Dugdale's Baronage and the • Inquisitiones post mortem,' published by the Record Commission. XXI.] Distribution of the Peerage, 529 baron of Greystoke, Durham the lords of Lumley and Raby, Local distri- besides its palatine bishop, to the list of Northern lords. The the great southern counties were thickly sown with smaller lordships; Sussex was the home of Camoys, Dacre, and la Warr; from Kent came the lord of Cobham, from Gloucester Berkeley, from Cornwall Botreaux and Bonneville, from Somerset Hungerford, Beauchamp, Montacute. Along the Welsh march the greater English earldoms long retained their old fighting grounds ; the lords of Lancaster at Monmouth and Kidwelly, the Bohuns at Brecon and Hereford, the Mortimers at Chirk and Wigmore. In the middle of England the baronage was less strong; the crown and the duchy of Lancaster were very powerful : and with the exception of the duchy of Buckingham the other lord- ships were neither many nor large. On the east the duke of Xorfolk, gathering in the Mowbray dignities of Nottingham and the Marshall ship, was almost supreme, and before the battle of Bosworth field had acquired the earldom of Surrey. Although Early ex- both the great earldoms and the more important baronies re- the greater tained a sort of corporate identity derived from earlier times, almost all the elder historic families had, as we have seen already, become extinct in the male line, before the Percies and Nevilles came into the van of the baronage. The representation of the Clares and Bohuns as well as that of the Lacys, the Ferrers, the Bigods, and many others, had fallen into the royal family. The Mowbrays of Norfolk and the St affords of Buckingham derived their importance rather from their marriage with heiresses of royal blood than from the elder Mowbrays and Staffords ; and this was one of the causes that gave peculiar horrors to the dynastic quarrel. But even this short sketch leads into in- quiries that are too remote from constitutional history. Besides territorial competition and family rivalries, here- Hereditary politics. ditary politics contributed to the weakening of the baronage as a collective estate. The house of Lancaster with its hereditary principles had its hereditary^ following. Bohun and Bigod were consistent, for generations, in opposition to the assumptions of the crown; and when John of Gaunt failed to support ade- quately the character of the house he represented, Henry IV VOL. III. M m Constitutional Kidory . [chap. Factitious sources of strength. Survival of feudal instincts. Great retinues of the lords. learned from the Bobuns and Arundels the lessons that led him to the throne. To develop however this side of the subject would be to recapitulate the history of the fifteenth century. 792. If we pass thus summarily over the points in which faction and personal rivalry weakened the baronage in- ternally, and turn to those in which class feeling gave them a false strength, and set them apart from the classes next below them, we shall find additional reasons for doubting their substantial influence and for believing that their great period of usefulness was coming to an end. But more than one of the points to be noted are common to the nobility and the higher gentry or knightly body; and causes which tended to divide the one from the other, tended, in a similar though less effective way, to sever the interests and sympathies of the gentry from those of the inferior commons. Chief amongst these causes were the customs of livery and maintenance, the keeping of great households and flocks of dependents, the fortification of castles and manor-houses, the great value set on heraldic distinctions, and the like. These matters are not all of the same importance, and have not all the same history. The old feudal spirit which prompted a man to treat his tenants and villeins as part of his stock, and which aspired to lead in war, and to judge and tax, his vassals without reference to their bond of allegiance to the crown, had been crushed before the reign of Edward III ; but the passions to which it appealed were not extinguished, and the pursuits of chivalry continued to supply some of the incentives to vanity and ambition which the feudal customs had furnished of old. The baron could not reign as king in his castle, but he could make his castle as strong and splendid as he chose ; he could not demand the military services of his vassals for private war, but he could, if he chose to pay for it, support a vast household x)f men armed and liveried as servants, a retinue of pomp and splendour, . but ready for any opportunity of disturbance; he could bring them to the assizes to impress the judges, or to par- liament to overawe the king ; or he could lay his hands, through them, on disputed lands and farms, and frighten away those XXI.] Livery. who had a better claim. He could constitute himself the cham- pion of all who would accept his championship, maintain their causes in the courts, enable them to resist a hostile judgment, and delay a hazardous issue. On the seemingly trifling pomp and pretence of chivalr}^, the mischievous fabric of extinct feudalism was threatening gradually to reconstruct itself. 793. Livery was originally the allowance (liberatio) in pro- Origin of the visions and clothing which was made for the servants andS^^y.^ officers of the great households, whether of baron, prelate, monastery or college \ From the rolls of accounts and house- hold books of such families it is possible to form a very exact notion of the economy of the medieval lords. The several departments were organised under regular officers of the buttery, the kitchen, the napery, the chandlery and the like ; every inmate had his fixed allowance for every day, and his livery of clothing at fixed times of the year or intervals of years. The same custom was practised in the reception of guests ; the king of Scots, when he came to do homage to the king of England, had his allowance of wax and tallow candles, of fine and common bread, measured out like any servant, and the due delivery of all was secured by a formal treaty ^. The term livery was how- ever gradually restricted to the gift of clothing, the gift of food and provisions being known as allowances or corrodies : the clothing took the character of uniform or badge of service ; as it was a proof of power to have a large attendance of ser- vants and dependents, tjie lords liberally granted their livery to all who wished to wear it, and the wearing of the livery became a sign of clientship or general dependence. It was Its practical thus a bond between the great men, who indulged their vanity, and the poorer, who had need of their protection, sometimes by force of arms, but generally in the courts of law : it was a revival, or possibly a survival of the ancient practice, by which ^ The customs of livery and allowances are still maintained in some of the colleges of the Universities, and in many respects these institutions furnish most important illustrations of what in the middle ages was the domestic economy of every large household. At Oriel, for instance, every fellov? has his daily allowance whilst in residence, and, eveiy other year, a payment for livery, if he has resided the fixed number of days. ^ See Hoveden, iii. 245. M m 2 53^ Conditutional History, [chap. every man was bound to have a lord, and every lord had to represent his men or be answerable for them in the courts. T^ii^mischief The English of the middle ages were an extremely litigious tenance. people ; it was one of the few qualities which their forefathers had shared with their Norman masters ; and it was that side of the national character which was most mischievously deve- loped by the judicial institutions of Henry I and Henry II. Litigation was costly, at least to the poor ; and it was far easier for a man who wished to maintain his own right, or to attack his neighbour's, to secure the advocacy of a baron who could and would maintain his cause for him on the understanding that he had the rights of a patron over his client. This practice of maintenance, the usage of the strong man upholding the cause of the weak, was liable to gross perversion ; and the maintainers of false causes, whether they were barons or lawyers, became ^.isiation very early the object of severe legislation. Edward I, in the maiuten- statute of Westminster the First, forbad the sheriffs and other officers of his courts to take any part in quarrels depending in the courts^. By a statute of 1327 it is forbidden that any member of the king's household, or any great man of the realm, by himself or by another, by sending letters or otherwise, or any other in the land, great or small, shall take upon him to maintain quarrels or parties in the country to the let and dis- turbance of the common law^; in 1346, in an act which marks by its wording the growth of the practice in the higher classes, prelates, earls, barons, the great and small of the land, are all alike forbidden to take in hand or maintain openly or privately, for gift, promise, amity, favour, doubt or fear, any other quarrels than their own The long list of statutes in which the evil prac- tice is condemned shows how strong it had become ; sheriffs are forbidden to return to parliament the maintainers of false suits * ; the lawyers and the barons are alike struck at in petition and statute ; and the climax is reached when Alice Ferrers, the king's mistress, takes her seat in the law courts and urges the ance. ^ Stat. Westm. i. cc. 25, 28, 33 ; Statutes, i. 33, 35. 2 I Edw. Ill, St. 2, c. 14; Statutes, i. 256, 2 20 Edw. III. cc. 4, 5, 6 J Statutes, i. 304. 305. * See above, p. 399, XXI.] Heraldry. 533 quarrels of her clients^. In the condemnation of maintainers pronounced by the Good Parliament, ladies as well as lords come in for general reprobation^. The support given by John of Gaunt and Henry Percy to Wycliffe at St. PauFs was a gross act of maintenance ^. The abuse of maintenance for the purpose of increasing the Mainten- estates of the maintainer, by a compact in which the nominal champerty, plaintiff shared the profits of victory with his patron, or the patron secured the whole, was one very repulsive aspect of the custom. Another, and that more directly connected with the giving of liveries, was the gathering round the lord's household of a swarm of armed retainers whom the lord could not control, and whom he conceived himself bound to protect. In the former Riotous aspect the law regarded maintenance as a description of con- spiracy \ in the latter as an organisation of robbers and rioters ; but the difficulty of restraining the abuse was very great ; the lords were themselves the makers, of the law, and the source of their local power lay in these very retinues which disgraced them. The livery of a great lord was as effective security to a malefactor as was the benefit of clergy to the criminous clerk. But livery, apart from maintenance of false quarrels, involved a political mischief. 794. Under the auspices of Edward I and Edward III there Importance was a great development of heraldic splendour; heraldry came a handmaid of chivalry, and the marshalling of badges, crests, coat -armour, pennons, helmets, and other devices of dis- tinction, grew into an important branch of knowledge. The roll of knights who attended Edward I at Caerlaverock is one of the most precious archives of heraldic science The coat- armour of every house was a precious inheritance, which de- scended, under definite limitations and with distinct differences, to every member of the family : a man's shield proved his gentle or noble birth, illustrated his pedigree, and put him on his honour ^ Vol. ii. p. 431. ^ Eot. Pari. ii. 329 ; iii. 12. ^ Vol. ii. p. 438. * It was published by Sir Harris Nicolas in 1828. Other Rolls are printed in the Parliamentary Writs, i. 410-420; ii. pp. 2, 196-200; Ex- cerpta Historica, pp. 50, 163, 314, &c,, and in the ordinary books on heraldry. 534 Constitutional History. [chap. Court of the Earl Marshall. Herald's visitations. Orders of knighthood. Livery of companj'. not to disgrace the bearings which his noble progenitors had worn. The office of the Earl Marshall of England was em- powered to regulate all proceedings and suits of heraldry, and it had a staff of busy officers ^. The great suit between Scrope and Grosvenor^, for the right to bear the bend or on the field azure, is one of the causes celeb res of the middle ages ; it dragged on its course from 1385 to 1390; a vast mass of evidence was brought up on both sides, and the victory of Scrope was one of the first facts that brought before the notice of the baronage the antiquity claimed for the house of Grosvenor. Scarcely less famous was the contest between lord Grey of Ruthyn and Edward Hastings, the heir by half blood of the Hastings barony ^ : Grey of Ruthyn succeeded in gaining the arms ; both competitors assumed the title to which neither had a right. Regular visitations were held by the heralds, who kept courts in every county, where the claimants of heraldic honours were bound to appear under the penalty of being de- clared ignoble. The institution of the Order of the Garter by Edward III marks another step of this history : it was the erection of a new sort of nobility by livery ; a body of exalted pretensions in chivalry, w^hose mark was the collar, mantle, jewel and garter of the Order of S. George. The king had numerous imitators ; the heraldic devices of lords and ladies were pressed into the service of chivalry; and 'livery of com- pany' became a fashionable practice. It was no longer a mere mark of service to wear the badge of a lord ; the lords wore one another's badges by way of compliment ; Richard II greatly offended the earl of Arundel by wearing the collar of his uncle's livery; the livery of John of Gaunt was severely criticised as being scarcely distinguished from that of the king^. Worse evils followed : liveries became the badges of the oreat factions ^ See Coke, 4th Inst. pp. 123 sq. ; Prynne, 4th Inst, pp. 59 sq. The jurisdiction of the Earl Marshall was defined by Stat, 13 Rich. II. c. 2 ; and the College of Arms was incorporated by Richard III ; Coke, 4th Inst, p. 125. ^ See Prynne, 4th Inst. pp. 62, 63. The whole proceedings in this case were edited by Sir Harris Nicolas in 1832. 3 Nicolas, Historic Peerage, p. 239 ; Rot. Pari. iii. 480. * Rot. Pari. iii. 313. XXI.] Legislation on Livery, 535 of the court, and the uniform, so to speak, in which the wars of the fifteenth century were fought. Livery in these two aspects, in connexion that is with il- Acts of par- legal maintenance and with dynastic faction, occupies no in- the subject • • • • of livery* significant place in the statute book and rolls of parliament. In 1377 the commons petitioned against 'the giving of hats by way of livery for maintenance,' and the justices were directed to inquire into cases of abuse ^; in 1389 a royal ordinance was founded on the petition that no one should wear the badge of a lord ^, and that no prelate or any layman below the rank of banneret should give such livery of company : dukes, earls, barons, or bannerets might give livery, but only to knights retained for life by indenture, and to domestic servants. A very long list of petitions, and a proportionate number of statutes, all of the same tendency, prove that the evil was ineradicable by mere measures of restriction. In the parlia- Classes al- ment of 1399 it was enacted that the king alone might giveih?e?y. any livery or sign of company ; and the lords only livery of cloth to their servants and counsellors^ ; in 1401 the prince of Wales was allowed the same privilege as the king*; in 141 1 the right was conceded to guilds and fraternities founded for a good intent^; in 1429 further allowances are made, livery of cloth is not forbidden to the lord mayor and sheriffs of London, to the serjeants-at-law, or the universities ; in time of war the lords may give liveries of cloth and hats, but such livery may not be assumed without leave*'; and in 1468 Edward IV confirmed the previous legislation on the point Proofs of the abuse are not wanting ; in 1403 the Percies had Abuses of given liveries to the rebels^; the permission to give livery of cloth only rendered the offence more difficult of detection, and the penalty on giving such livery beyond the prescribed limits, ' the pain to make fine and ransom at the king's will' was not sufficiently definite ^ Rot. Pari. iii. 23. 2 ^^^^ ^zxl. iii. 265 ; St. 13 Eich. II, c. 3. 3 Stat. I Hen. IV, c. 7; Statutes, ii. 113. * Stat. 2 Hen, IV, c. 21 ; Statutes, ii. 129, 130. ^ Stat. 13 Hen. IV, c. 3 ; Statutes, ii. 167. ® Stat. 8 Hen. VI, c. 4; Statutes, ii. 240, 241. ^ Stat. 8 Edw. IV, c. 2 ; Statutes, ii. 426, 428. « Rot. Pari. iii. 524. 53^ Constitutional History. [chap. Mischiefs to be effective ; the statutes of Henry VI and Edward IV direct the cifstom" a more distinct form of process. Viewed as a social rather than livery. a legal point, whether as a link between malefactors and their patrons, a distinctive uniform of great households, a means of blunting the edge of the law, or of perverting the adminis- tration of justice in the courts — as an honorary distinction fraught with all the jealousies of petty ambition, as an under- hand way of enlisting bodies of unscrupulous retainers, or as an invidious privilege exercised by the lords under the shadow of law or in despite of law, — the custom of livery forms an important element among the disruptive tendencies of the later middle ages. It resuscitated the evils of the old feudal spirit in a form which did not furnish even such security for order as was afforded in the older feudal arrangement by the sub- stantial guarantee found in the tenure of land by the vassal under his lord. Livery and maintenance, apart or together, were signs of faction and oppression, and were two of the great sources of mischief, for the correction of which the jurisdiction of the Star Chamber was erected in the reign of Henry VII \ Fortified 794. Somewhat akin to the practice of livery of servants great^lords!^ was the usage of fortifying the manor houses of the great men : a usage which went a long way towards making every rich man's dwelling-place a castle. The fortification or crenellation of these houses or castles could not be taken in hand without the royal licence : a matter, it must be supposed, of ancient prerogative, as it does not rest upon statute, and must be con- nected with the more ancient legislation against adulterine Licences for castles. A great number of the licences to crenellate or em- * battle dwelling houses are found among the national records from the reign of Henry III onwards ^ ; in the majority of cases the licence is granted to a baron or to some prelate or knight nearly approaching baronial rank ; a few to the magistrates of towns for town walls. Between 1257 and 1273 Henry III granted twenty such licences ; on the rolls of Edward I appear * See Stat. 3 Hen. VII, c. i ; Lambarde, Archeion, pp. 183, 190. ^ The list of licences from 1257 was printed by Mr. Parker in the first volume of the New Series of the Gentleman's Magazine, 1856, vol. i. pp. 208 sq., and from it the numbers given in the text are taken. XXI.] Fortified Houses. 5?>1 44 ; on those of Edward III 58 ; the long reign of Edward III Petition on furnished 180 cases, and that of Richard II 52. In a parlia- mentar}^ petition of 1371 the king was asked to establish by- statute that every man throughout England might make fort or fortress, walls and crenelled or embattled towers, at his own free will, and that the burghers of towns might fortify their towns, notwithstanding any statute made to the contrary. The king replied, that the castles and fortresses might stand as they were, and refused to allow the re-fortification'of the towns ^. Any such measure would have been a mark of impolicy, and opposed to the interest of both king and commons. From the accession of Henry IV the number of licences diminishes ; only ten are on the rolls of his reign, one on those of Henry Y, five on those of Henry VI, and three on those of Edward IV; but it does not seem certain that the diminution resulted from any change in the royal policy. In the proposition for the resump- Discus^on^ tion of gifts, which was urged on Henry IV in 1404, the com- houses, mons declared that they had no wish to restrain any subject from applying for licence either to fortify his castle or to enclose his park ^. But however freely this was done, the age of Edward III would seem to have been the period of greatest activity in tTiis respect. The licence to crenellate occasionally contained the permis- Enclosure sion to enclose a park, and even to hold a fair. The first of the two points must be interpreted to show that the royal jealousy of forest rights was much less strongly felt than it had been in the early Norman and Plantagenet times, when forest administration was an important constitutional question. Edward I had indeed granted that a writ ' ad quod damnum ' should issue out of chancery to any who wished to make a park; the permission, after due inquiry, was to be granted on the payment of a reasonable fine ^ : so that the increase of parks perhaps may have kept pace with the multiplication of forti- fied houses. It was an important privilege, whether looked at as an extension of forest liberties, or as an encroachment, as it 1 Rot, Pari. ii. .^07. 2 parl. iii. ^^g. 3 Rot. Pari. i. 56; Statutes, i. 131. 538 Constitutional History, [chap. Effect of the often was, on the waste or common lands of the manors. But enclosure of parks. land was cheap and plentiful, and little heartburning seems to have been produced by it among the classes that could make their voices heard in parliament. On the class which was likely to produce trespassers and poachers the hand of the law was Offenders heavy. The statute of Westminster the First ^ classed such against the game laws, offenders with those found guilty of open theft and robbery, if they are convicted of having taken any game ; the trespasser was liable to three years' imprisonment, to pay damages, and make a fine with the king; and in the parliament of 1390 it was enacted that no one possessing less than forty shillings a year, and no priest or clerk worth less than ten pounds a year, should keep a dog, ' leverer, n'autre chien This early game- law was primarily intended to stop the meetings of labourers and artificers, and has little permanent importance besides. estabS their great fortified houses the barons kept an enor- ments. mous retiuue of ofiicers and servants, all arranged in well-dis- tinguished grades, provided with regular allowances of food and clothing, and subjected to strict rules of conduct and account^. A powerful earl like the Percy, or a duke like the Stafford, was scarcely less than a king in authority, and much more than a ^ Statutes, i. 32. See also an ordinance of 1293 ; ib. p. 11 1. ^ Stat. 13 Rich. II, c. 13; Statutes, ii. p. 65. ^ The following table is an abstract of the estimates given in the Black Book of Edward IV on this point : — Person. Income. Knights. Clerks. Squires. Yeomen. Secondary clerks. S § 6 c i 3 -2 3d Total. King £13,000 16 24 160 240 20 16 40 516 Duke 4000 6 60 100 40 24 230 Marquess 3000 4 60 100 60 224 Earl 2000 .^0 60 40 130 Viscount 1000 20 40 24 84 Baron 500 4 16 6 26 Banneret 200 B 6 24 Knight 200 16 Squire 50 2 2 2 16 The columns do not exactly coincide. The whole number of inmates of the Percy household in the reign of Henry VIII was 166; See North- humberland Household Book, p. x, and the valuable note of Hume, Hist. Engl., vol. ii. note Z. XXI.] Baronial Households. 539 king in wealth and splendour within his own house. The Great trains economy of a house like Alnwick or Fotheringay was perhaps more like that of a modern college than that of any private house at the present day. Like a king, too, the medieval baron removed from one to another of his castles with a train of servants and baggage, his chaplains and accountants, steward and carvers, servers, cupbearers, clerks, squires, yeomen, grooms and pages, chamberlain, treasurer, and even chancellor. Every state apartment in the house had its staff of ushers and servants. The hall had its array of tables at which the various officers were seated and fed according to their degree. The accounts Household were kept on great rolls, regularly made up and audited at ^jig®^^^^™^' quarter days, when wages were paid and stock taken. The management of the parks, the accounts of the estates, the hold- ing of the manorial courts were further departments of ad- ministration : every baron on his own property practised the method and enforced the discipline which he knew and shared in the king's court ; he was a man of business at home, and qualified in no small degTee for the conduct of the business of the realm. And this is a point that enables us to understand how it was possible that men like the earl of Arundel of Henry V's time, or lord Cromwell of Henry VI's, could be called to the office of treasurer at a moment's notice : they had been brought up and lived in houses the administration of which was, on a somewhat reduced scale indeed, but still on the same model, the counterpart of the economy of the kingdom itself^. 797. When the baron went to war, he collected his own The baron's contingent for the royal army, frequently at his own cost, but service, always with the expectation of being paid by the king. And this is one of the points in which the later medieval practice is most curiously distinguished from the earlier. The old feudal institutions, which, for the purposes of war, long re- tained a vitality which in other respects they had lost, were * Several volumes of Household books have been printed; Bishop Swin- field's, by the Camden Society in 1854 and 1855; the Nortliumberland Household Book, by Bishop Percy and Sir H. Nicolas ; those of the duke of Norfolk by the Roxbui ghe Club, in 1844; and that of the duke of Buck- ingham by the Abbotsford Club. 540 Constitutional History. [chap. Service by now replaced by a combination of cbivalric sympathy with indenture. ,5, . . . „ . , / mercantile precision. This reflects very distinctly the two sides of the policy of Edward III, who must have introduced the practice when he found that for foreign service the feudal organisation of the army was absolutely useless, and had to attempt to utilise on the one hand the chivalry and on the other the business-like astuteness of his subjects. Armies were no longer raised for the recovery of the king's inheritance by writs of summons, but by indenture of agreement. The great lords, dukes, earls and barons, bound themselves by indenture, like the apprentices of a trade, to serve the king for a fixed Money time, and with fixed force, for fixed wao^es ^. Beyond their wages speculation . . , in war. the great men reckoned on the ransom of their prisoners, the poorer on the plunder of the battle-field or the foraging raid. As the lords bound themselves by indenture to the king to serve in the field or to act as constables of castles or governors of conquered provinces, so the lower ranks of knights and squires bound themselves to the baronial leaders, took their pay and wore their livery. When John of Gaunt went to Castille he took with him by indenture some of the noblest knights of England. John Neville, the lord of Raby, bound himself to serve him for life at wages of 500 marks a year^. When duke Kichard of York or Edmund of Somerset governed Normandy, the terms of their appointment, service and remuneration, were set out in a like indenture of service. This document sometimes deter- mined also the lord's share in the winnings of his retainers ^. ^ For example, in 1 380 Thomas of Woodstock agreed to serve the king in Brittany, by indenture; Kot. Pari. iii. 94; in 1381 the names of all who had agreed to serve the king in his wars, with indentures and without indentures, were to be enrolled; ib. p. 118. The haggling about indentures of service during the minority of Henry VI is one of the most curious points brought out in Ordinances of the Privy Council. ^ Calendar of the Patent Rolls, p. 186 ; a long list of knights who had entered into the same engagement was used by Sir H. Nicolas on editing the Scrope and Grosvenor Roll. ^ See for example the indenture by which John de Thorpe Esquire binds himself for life to serve Ralph Neville, earl of Westmoreland, in peace and war; Mad ox, Formulare, p. 97; an indenture betweeu the earl of Salisbury and his own sons, touching the lieutenancy of Carlisle, ib. p. 102 ; and an indenture between the earl of Warwick and Robert Warcop, p. 104. XXI.] Great Households. 541 When accordingly, in the troubled times of Richard II and The great Henry VI, the necessities of private defence compelled the great the nobles households to revive the practices of private war, the service lome^ by indenture and the wearing of livery were familiar methods Swisses of enlistment ; and the barons, besides their hosts of menial servants, had trains of armed and disciplined followers. If to these we add the council of the duke or earl, the personal or official advisers who attended him when he had anything like public business to manage, the lawyers who held his courts, the clerks who kept his accounts, and the chaplains who sang and celebrated the sacraments in his chapels, we shall see that, with all its drawbacks and disadvantages, its dangerous privileges and odious immunities, the position of a powerful baron was one which enabled him to draw classes of society together in a way which must be regarded as beneficial for the time. His house was a school for the sons of neighbouring knights and squires, a school of knightly accomplishment and of all the culture of the age. By the strictest bonds of friendship and interest he could gather his neighbours about him. His bountiful kitchen and mag- nificent wardrobe establishment linked him to the tradesmen and agriculturists of the towns and villages round him. His progresses from castle to castle, and his visits to the court, taught his servants to know the countiy and spread public intelligence, whilst it made men of distant counties acquainted with one another. It was thus doubtless that men like War- wick maintained their hold on the country ; thus duke Richard of Gloucester was able to cultivate popularity in the north ; and thus in some degree the barons were qualified to act, as they acted so long, the part of guides and champions of the com- mons. For good or for evil, it linked together the classes which possessed political weight. The Speaker of the house of com- mons was not unfrequently a bound officer of some great lord whose influence guided or divided the peers. In 1376 Peter de la Mare was steward of the earl of March ^, Thomas Hun- gerford was steward of the duke of Lancaster ^ ; they were the Speakers in two strongly-contrasted parliaments. Such was the ^ See vol, ii. p. 430. 2 Yo\. ii. p. 437. 54^ Constitutional History. [chap. relation of Sir William Oldhall to duke Eichard of York in 1450; he had been his chamberlain in Normandy, and was still one of his council ^. Question- 798. It is obvious that such a state of things can be bene- of baronfal* ficial only in certain stages of political growth ; and that it has leadership. ^ tendency to retain dangerous strength long after the period of its beneficial operation is over. Whilst the liberties of Eng- land were in danger from the crown, whilst the barons were full of patriotic spirit, more cultivated and enlightened than the men around them, whilst they were qualified for the post of leaders, and conscious of the dignity and responsibility of leading, this linking of class to class around them was produc- tive of good. When the pride of wealth and pomp took the place of political aspirations, personal indulgence, domestic tyranny, obsequious servility followed as unmitigated and deeply- rooted evils. Of both results the later middle ages furnish examples enough ; and yet to the very close the manly and ennobling sense of great responsibilities lights up the history of Real great- the baronage. They were not the creatures of a court ; they medieva?^ Were not the efi'ete and luxurious satellites of kings like those baronage. ^-^^ ruled on the other side of the Channel. They were am- bitious, covetous, unrelenting, with little conscience and less sympathy ; but they were men who recognised their position as shepherds of the people. And they were recognised by the people as their leaders, although the virtue of the recognition was dimmed by servile and mercenary feelings on the one side, and by supercilious contempt on the other. When the hour of their strength was over, the evil leaven of these feelings re- mained, and, under the new nobility of the Tudor age, became more repulsive than it had been before. The obsequious flat- tery of wealth, however acquired, and of rank, however won and worn, is a stain on the glories of the Elizabethan age as of later times, and does not become extinct even when it provokes an equally irrational reaction. 799. Much that has been said of the great temporal barons may be held to apply also to the great prelates in their baronial * See above, p. 158. XXI.] The Great Brelates, 543 capacity. The two archbishops maintained households on the Episcopal , 11,. 1 o ' n ^ households, same scale as dukes, and the bishops, so lar as mnuence and expenditure were concerned, maintained the state of earls. They had their embattled houses, their wide enclosed parks, and un- enclosed chaces ; they kept their court with just the same array of officers, servants, counsellors and chaplains ; they made their progresses with armed retinues and trains of baggage ^, and took their audits of accounts with equal rigidity. In one point, that of military service, they exercised less direct authority ; but in other respects they possessed more. Besides their religious van- Influence of Till 111 . 1 • 1 1 1 1 territorial tage ground, they had a stronger hold on inherited loyalty, and pos- loyalty. sessed longer and higher personal experience. The ecclesiastical estates remained far more permanently in the hands of the prelates than the lay estates in those of the lords. Many of the bishops possessed manors which had been church lands from the time of the heptarchy ; few of the lay lords could boast of ancestry that took them back to the Norman Conquest, without many changes of rank and tenure. And in personal experience few Personal . . experience, of the barons could compete with the prelates. The life of a lay lord in the middle ages was, with rare exceptions, short and laborious : the life of a great prelate, laborious as it was, was not liable to be shortened by so many risks. Kings seldom lived to be old men ; Henry I and Edward I reached the age of sixty-seven ; and Elizabeth died in her seventieth year : until George II no king of England lived over seventy. Simon de Montfort, * Sir Simon the old man,' may have been over sixty when he died ; the elder Hugh le Despenser was counted won- drously old, a nonagenarian at sixty-four ; the king-maker died a little over fifty. But forty years of rule was not a rare case Long life, among the prelates : William of Wykeham, Henry Beaufort, and William Waynflete, all bishops, chancellors, and great politi- cians, filled the see of Winchester for a hundred and seventeen years in succession; Beaufort was forty-nine years a bishop; * Machin writes of the great bishop Tunstall, when he came up to London to be deprived and to die in 1559 : 'The 20th day of July the good old bishop of Durham came riding to London with threescore horse ' ; JDiary, p. 204. 544 Constitutional Ridory. [chap. Hard work. Arundel thirty -nine ; Bourchier fifty-one ; Kemp thirty-four; and all were men of some experience before they became bishops. Like most medieval workers they all died in harness, transact- ing business, hearing suits, and signing public documents until the day of their death. Both the early industry of the barons, and the long-protracted labours of the prelates, convey the lesson that life was not easy in the middle ages, except perhaps in the monasteries, where the ascetic practices and manual labour of early days no longer counteracted the enervating influences of stay-at-home lives. They teach us, too, how strange a self- indulgent idle king must have seemed in the eyes of men who were always busy, and how a king who shunned public work must have repelled men who lived and died before the world, whose very houses were courts and camps. The body of 800. The knights and squires of England, on a smaller squires. scale, and with less positive independence, played the same part as the great lords ; their household economy was propor- tionately elaborate ; their share in public work, according to their condition, as severe and engrossing. There was much, moreover, in their position and associations that tended to ally them politically with the lords. They had their pride of ancient blood and long-descended unblemished coat armour \ they had had, perhaps, as a rule, longer hereditary tenure of their lands than those higher barons who had played a more hazardous game and won larger stakes. What attendance at court, the chances of royal favour, high office, the prizes of war, were to the great lord, the dignity of sheriff", justice, knight of the shire, commissioner of array, were to the country gentleman. He was in some points equal to the nobleman ; in blood, knightly accomplishment, and educational culture, there was little differ- ence, and need be none ; the geutleman was brought up in the house of the nobleman, but with no degrading sense of inferi- ority, and with a thorough acquaintance with his character and ways. He might have constituted, and perhaps in many in- stances did constitute, an invaluable link of union betwixt the baron and the yeoman. In this class of gentry, including in that wide term all who XXI.] Knights and Squires, 545 possessed a gentle extraction, the ' generosi/ * men of family, Reluctance of worship, and coat armour,' are comprised both the knight, smaller whether banneret or bachelor, and the squire. The attempts to become of the successive kings to enforce upon all who held land to^^^^'^**' the value of a knight's fee the obligation of becoming belted knights seem to have signally failed ; the fines and licences by which men of knightly estate were allowed to dispense with the ceremony of the accolade were more profitable to the crown than any services which could be exacted from an unwilling class ; and few became knights who were not desirous of following the profession of arms. Hence the difficulty of enforcing the elec- tion of belted knights as representatives of the shires ^. It is not easy to account for this prevalent dislike to undertake the degree of chivalry, unless it arose from a desire to avoid the burden of some public duties that belonged to the knights. Exemption from the work of juries and assizes was coveted under Henry III ^ ; the reluctance to take up knighthood was increased by the somewhat exorbitant demands for military service which were made by Edward I and Edward II for the Scottish wars : all who possessed the knightly estate were sum- moned for such service, and, even if they served for wages, their wages we may suspect were not very regularly paid. The fines and licences were in use before the Scottish wars began, but the diminution in the knightly rank, which embarrassed county business even in the reign of Henry III, had increased very largely under Edward III. After the middle of the fourteenth Ee^aval of century, and the development of courtly chivalry, the rank spirit of of knight recovered much of its earlier character and became again a military rank. But the class of squires had then for all practical purposes attained equality with that of knights, and all the functions which had once belonged exclusively to the * See above, p. 400. ' This was the ground of the complaint made by the barons against Henry III in the parliament of 1258: 'Quod dominus rex large facit militibus de regno suo acquietantiam ne in assisis ponantur, juramentis vel recognitionibus' ; Ann. Burton, p. 443; Select Charters, p. 378. Of course it was easier and cheaper to avoid taking knighthood than to purchase such an immunity. VOL. m. N n 54^ Constitutional History. [chap. Increase of knights were discharged by the squires. A large and con- squires, stantly increasing proportion of knights of the shire were ' armigeri/ and the Speaker as often as not was of the same order. There were, notwithstanding this, many families in which the head was always a knight, and in which the title signified rank as well as the profession of arms. Such, for instance, were the families sprung from the old minor barons, who had under Edward I been summoned by special writ to military service but not to parliament, and in which the as- sumption of the knightly title was really the continued claim to rank with the magnates of the county : the great legal fami- lies also maintained the same usage \ Different So wide a class contained, of course, families that had reached origin of the , . . , , . ^ i rN classes of their permanent position by different roads. Some were the sqim^s. representatives of old land-owning families, probably of pure English origin, which had never been dispossessed, which owned but one manor, and restricted themselves to local work. Others had risen, by the protection of the barons or by fortunate mar- riages, from this class, or from the service of the great lords or of the king himself, and, without being very wealthy, possessed estates in more than one county, and went occasionally to court. A third class would consist of those who have just been men- tioned as being of semi-baronial rank. The two latter classes in all cases, and the first in later times, would have heraldic honours. Erom the second came generally the men who under- took the offices of sheriff and justice. All three occasionally contributed to the parliament knights of the shire : the humbler lords of manors being forced to serve when the office was more burdensome than honourable, the second class being put forward when political quarrels were increasing the importance of the office, and the highest class undertaking the work only when political considerations became supreme. An examination of the lists of sheriffs and knights leads to this general conclusion, although there are of course exceptions. The ^ The absence of the knightly title is marked especially in the case of Thomas Chaucer, who although closely connected with the baronage, and even with the royal housC; and a very rich man, continued to be an esquire. XXI.] Kmghtly Families, 547 earlier parliaments of Edward I are largely composed of tlie illustrations highest class of knights, but that soon ceases to be the rule \ and lists of from the beginning of the fourteenth century they are filled with the^slfire.^ men of pure English names, small local proprietors, whose pedi- grees have more charm for the antiquary than for the historian ^ Towards the middle of the fourteenth century come in the better-known names of families which have risen on the support of the dynastic factions \ quite at the close of the middle ages are found the men of the baronage ^. A single example will suf- fice : In Yorkshire the first stage is marked by the election of a Balliol and a Percy, Fitz-Randolf, S. Quentin, Hotham, Ugh- tred and Boynton ; the second by names like Barton, Thornton, Clotherholm, Bolton, Malton, with a sprinkling of Nevilles and Fairfaxes; the tliird, beginning half-way in the reign of Edward III, includes Scrope, Pigot, Neville, Hastings, Savile, Bigod, Grey and Strangways. In Yorkshire the knightly element con- tinued strong enough to hold the representation until modern times ; the Saviles, Fairfaxes, Constables and Wentworths suc- ceeded one another generation after generation, and before the sixteenth century closed these families had won a place of equality with the titular nobility. The same conclusion may be drawn from the lists of sheriffs ; Fi-om the and, in fact, from the time at which the annual appointment of new sheriffs, sheriffs was forced upon the crown, the two lists are of very much the same complexion. The Act of Henry YI, in 1446, requiring the election of * notable squires, gentlemen of birth, competent to become knights,' attests the high importance which the ruling class was setting on the county representation ; but as a matter of fact it did not change the character of the elected knights. It ^ I must give a general reference for these particulars to Prynne's Writs, Reg. ii, iii, and iv. It is one of the marvels of our constitutional indifFerontism that the ancient returns have never been collected and properly editetl. The lists of sheriffs are still to be found only in the several county histories, or in Fuller's Worthies. For a few counties complete lists of members were printed by Browne Willis, who also published full lists from the reign of Henry VIII to that of Charles II. But his col- lections for the earlier parliaments are mostly in MS. still. ^ The first recorded precedent for the heir apparent of a peerage sitting in the house of commons, is that of Sir Francis Russell, son of the earl of Bedford, in 1549 > Hatsell, Precedents, ii. 18. N n 2 548 Constitutional History. [chap. Rise of the is in the second class of the gentry that we find the more nota- knightly class to ble cases of a rise to nobility through long political labours : a Bourchier is chancellor to Edward III ; his descendant becomes a viscount under Henry VI, partly by prowess, mainly by a lucky marriage: a Hungerford is speaker in 1377," his house becomes ennobled in 1426; but the promotion to the rank of baronage is very slow; and most of the families which have furnished sheriffs and county members in the middle ages have to wait for baronies and earldoms until the reigns of the Tudors and Stewarts, to whom they furnish the best and soundest part of the new nobility. Household 801. The household of the country gentleman was modelled of a country , gentleman, on that of his great neighbour ; the number of servants and dependents would seem out of proportion to modern wants ; but the servants were in very many cases poor relations ; the wages were small, food cheap and good ; and the aspiring cadet of an old gentle family might by education and accomplishment rise into the service of a baron Mdio could take him to court and make his fortune ^. In the cultivation of his own estate the lord of the single manor found employment and amusement ; his work in the county court, in the musters and arrays, recurred at fixed times and year by year ; he prayed and was buried in his parish church ; he went up once in his life perhaps to London to look after the legal business which seems to have ^ The estimate of the outlay of the knight and squire, in the Black Book of Edward IV, shows how largely both were expected to live on home-grown produce. In the kniglit's house are drunk twelve gallons of beer a day, and a pipe of wine in the year ; fourteen oxen are allowed for beef, sixty sheep for mutton, and sixteen pigs for bacon : these are bought. Out of the home stock are required twenty pigs, thirteen calves, sixty piglings, and twenty lambs, besides twelve head of deer, taken by my lord's dogs, which cost more than they bring in. Geese, swans, capons, pullets, herons, partridges, peacocks, cranes, ami smaller fowl^j, either kept at home or taken in hawking, and a hundred rabbits, are required ; Ordinances of the Household, p. 34. The squire's household is more thrifty : for every day are required eighteen loaves of household bread, eight gallons of mean ale, cyder without price ; fivepence a day is allowed for beef, twopence for mutton, sixpence for an immense variety of things produced at home ; bacon, veal, venison, lamb, poultry, eggs, milk, cheese, vegetables, wood, coal, candles, salt, and oatmeal. In all twentypence a day. Fish-days must have come very often, by ' help of rivers and ponds, &c. ; Item to make verjuice themselves, &c.' ; p. 46. See more particulaa^s below, p. 554. XX.] Politics of the Knights. 549 been a requisite of life for great and small. His neighbour, Life of the . richer somewhat richer, had a larger household, a chaplain, and a gentleman. steward to keep his courts ; he himself acted as sheriff or knight of the shire, and was often a belted knight ; if he were fortunate in the field he might be a banneret ; he built himself a chapel to his manor-house or founded a chantry in his parish church : he looked out for a great marriage for his sons, and portioned off his daughters into nunneries \ he mingled somewhat of the adventurer with the country magnate, and, although he did not crenellate his houses or enclose large parks, he lived on terms of modest equality with those who did ; he could act as steward to the neighbouring earl, whose politics he supported, and by whose help he meant to rise. Above him, yet still in rank The greater knights. below the peerage, was the great country lord who, in all but attendance in parliament, was a baron ; the lord of many manors and castles, the courtier, and the warrior. There was no in- superable barrier between these grades; and many influences that might lead them to combine. 802. It may be asked to what cause we are to attribute the The pohticai attitude of opposition in which, durino^ the more bitter political the knights . . ^ 1 , , . -, n , 1 . . -.. ,1 of the shire, contests, we find the knights of the shire in parliament stand- ing with respect to the lords, the church and the crown, if the gradations of class were so slight and the links of interest so strong. The reply to the question must be worked out of the history through which we have made our way \ It is too much to say that the knights as a body stood in opposition or hostility to the crown, church and lords ; it is true to say that, when there was such opposition in the country or in the parlia- ment, it found its support and expression chiefly in this body. It must be remembered that the baronage was never a united phalanx. Throughout the really important history of the four- teenth and fifteenth centuries it was divided from head to foot by the hereditary political divisions in which the house of Lan- ^ The first trace of this is seen in the Good Parliament of 1376 : ' Magna controversia inter dominos et communes' ; Mon. Evesham, p. 44. The same writer in 1400 represents the 'plebeii' clamouring for the execution of the degraded lords, Out resisted by the king; p. 165. ^ 550 Constitutional History. [chap. Attitude of caster was set against the crown, or the dynastic opposition against mons liable the Lancastrian king. When the nation was with the constitu- te change . . from year to tional baronage against the court, the knights of the shire were strong in supporting, and were supported by, the constitutional baronage : but the court was strong too, and a little dealing with the sheriffs could change the colour of the parliament from year to year. The independent knights were a majority in the parliament of 1376; they were reduced to a dozen in that of 1377. There were subservient as well as independent parliaments; the subservient parliaments make little figure in history, but their members were drawn from the same class, perhaps the same families, as the independent parliaments. County politics, as we know so well from the Paston Letters, were not less troubled and not less equally balanced than were the national factions ; and many of the local rivalries that ori- ginated in the fourteenth century waxed stronger as they grew older, until the competitors were matched against one another in the great war of the Rebellion. It is true then that what was done in parliament for the vindication of national liberties was mainly the work of the knights, but it is not true that their policy was an independent or class policy, or that their influence was always on the right side, from^the^^ remarkable struggle, that of the Wycliffite party for historyofthe the humiliation of the clergy, this conclusion should be carefully Wycliffites. . ... „ . . weighed. There was no point in which the proposals of a distmct policy were more pertinaciously put forward than that of the con- fiscation of the temporalities of the clergy: so at least we are told by the historians, and the same may be gathered from the con- troversial theology of the time. It cannot be doubted that session after session the project was broached ; yet it never once reached the stage at which it would become the subject matter of a com- mon petition of the house; that is, it never once passed the house of commons or was carried up to the lords. It is easy to judge how it would have fared in the upper house, where the lords spiritual formed a numerical majority; but it never was pre- sented to them. Nor ought it to be argued that, because it never appears on the Rolls of Parliament, it was excluded by XXI.] The Yeomanry, ecclesiastical trickery: a house of commons such as that ofTheinflu- *' , ence of the which Arnold Savage was the spokesman, a body of justices ^^^^^ "^^^^^ whom Gascoigne was the chief, could not have endured dishonest ecclesiastical manipulation of their records ; such interference on the king's part was one of the points which contributed to the fall of Eichard II. Arundel might persuade the king to decline a speaker like Cheyne, but he could not have falsified or mutilated a record of the house of commons. The conclusion is simply that the Wycliffite knights were a pertinacious minority, never really strong enough to carry their measure through its first stages. 803. Next after the gentry, in respect of that political weight Iitiportance which depends on the ownership of land, was ranked the great man class. body of freeholders, the yeomanry of the middle ages, a body which, in antiquity of possession and purity of extraction, was probably superior to the classes that looked down upon it as ignoble. It was from the younger brothers of the yeoman families that the households of the great lords were recruited : they furnished men at arms, archers and hobelers, to the royal force at home and abroad, and, settling down as tradesmen in the cities, formed one of the links that bound the urban to the rural population. As we descend in the scale of social rank the differences Permanent between medieval and modern life rapidly diminish ; the habits Kfwer Vanks^ of a modern nobleman differ from those of his fifteenth cen-°^^^^^' tury ancestor far more widely than those of the peasantry of to-day from those of the middle ages, even when the increase of comfort and culture has been fairly equal throughout. But to counterbalance this tendency to permanence in the lower ranks of society, comes in the ever-varying influence arising from the changes of ownership ; the classes of nobility, gentry and yeomanry, having their common factor in the possession of land, expand and contract their limits from age to age. When Chang:e in personal extravagance is the rule at court, the noble class, and of lan?"^^ the gentry in its wake, gradually lose their hold on the land ; daSe? great estates are broken up ; the rich merchant takes the place of the old noble, the city tradesman buys the manor of the impoverished squire ; and in the next generation the merchant 55^ Constitutional Ristory. [chap. Trans- has become a squire, the tradesman has become a freeholder: mutation of , , , • • i i i , n . , , , classes. both, by acquiring land, have returned to strengthen the class from which they sprang. On the other hand, when the greed for territorial acquisition is strong in the higher class, the yeo- man has little chance against his lordly neighbour : if he is not overwhelmed with legal procedure, ordered to show title for lands which his fathers have owned before title deeds were invented, driven or enticed into debt, or simply uprooted with the strong hand, he is always liable to be bought out by the baron who takes advantage of his simplicity and offers him ready money. So in many cases the freeholder sinks into the tenant farmer, and the new nobles make up their great estates. Check aris- This rule of expansion and contraction was in the middle restraiSs on ages somewhat restricted in its operation by the difficulty of tionofland. alienating land : but the ingenuity of lawyers seldom failed to overcome that difficulty when might or money was concerned in the overruling of it. As the freeholding class possessed in itself greater elements of permanence than either the nobility or the gentry, was less dependent on personal accomplishments, and less liable to be affected by the storms of political life, the balance of strengih turned in the long run in favour of the Freeholders yeomanry. There are traces amply sufficient to prove their the electoral importance from the reign of Henry II onwards, but the recog- couiities. nition of their political right grows more distinct as the middle ages advance; and the election act of 1430, whatever its other characteristics may have been, establishes the point that the freeholders possessing land to the annual value of forty shillings were the true constituents of the ' communitas comitatus,' the men who elected the knights of the shire. They were the men who served on juries, who chose the coroner and the verderer, who attended the markets and the three-weeks court of the sheriff, who constituted the manorial courts, and who assembled, with the arms for which they were responsible, in the muster of the forces of the shire. After the economical changes which marked the early years of the fifteenth century, the yeoman class was strengthened by the addition of the body of tenant farmers, whose interests XXI.] Tenant farmers. 553 were very miicli the same as those of the smaller freeholders, Growth of the class ol and who shared with them the common name of yeoman. These tenant farmers. tenant farmers, succeeding to the work of the local bailiffs who had farmed the land of the lords and of the monasteries in the interest of their masters, were of course less absolutely depen- dent on the will of the landlord than their predecessors had been on the will of the master : they had their own capital, such as it was, and, when the rent was paid, were accountable to no one. They were also fi'ee from many of the burdens in the shape of legal obligation to which the freeholder was liable, and, whatever may have been their position before the statute of 1430, they were, unless they also possessed a freehold, ex- cluded by that act from the county franchise. They contributed however to the taxes in very much the same proportion ^, being assessed ' in bonis ' whilst the freeholder was assessed ' in terris ' ; their rank and comforts were the same. Their personal weight and influence depended, as always, rather on the amount of capital and extent of holding, than on the exact nature of the tenure. Under the older system the pampered bailiff could safely look down on the poor freeholder ; under the newer the wealthy tenant was far more independent than the man whose all was in the few fields to which he was as ijiuch bound by his necessities as was the legal villein by the condition of ^ This distinction became very important after the adoption of the later form of ' subsidy ' in taxation, a measure wliich does not fcill within our period, but deserves some notice here as a sequel to our inquiries into the earlier taxes. The custom of granting a round sum had already appeared in the reign of Edward IV, in 14 74 ; see above, p. 213 ; and particular methods of levying the money were devised in such cases. Lender Henry VIII the sums were much increased; the grant in 1514 was £160,000, which was raised on an elaborately graduated calculation of lands, goods, and rents. Under queen Mary the name of subsidy, like that of tenths and fifteenths, acquired a technical sense, and meant a tax raised by the payment of 4s. in the pound for lands, and 28. 8cZ. for goods ; aliens paying double. Each of these brought in a sum of about £70,000 ; and the clerical subsidy £20,000 more. The taxes were then granted in the form of one subsidy and one or two tenths and fifteenths; the latter being likewise fixed sums of about £29,000 ; in the 31st of Elizabeth, the parliament voted an unparalleled grant, two subsidies and four tenths and fifteenths ; Coke, 4th Inst. p. 33. How these sums were locally raised we learn from the Subsidy RoUs, some of which have been printed by the Yorkshire and other Archaeological Societies; and especially from Best's Farming Book (Surtees Society), pp. 86, 87-89, where will be foimd some invaluable hints for the history of local administration. 554 Constitutional History, [chap. Gradations birth and tenure. But it would be a mistake to argue as if all man class, the freeholders were owners of forty-shilling freeholds, and all the tenant farmers were rich men. The gradations of wealth and poverty were the same throughout ; the political franchise linked the poor freeholder on to the gentry and nobility ; community of habits and a common liability to suffer by the caprices of the seasons, good and bad harvests and the like, linked him on to the villein class. The tenant farmer was not so linked to the gentry, and was not so tied to the land. In other respects the two classes were companions and equals. Economy of 804. The Black Book of Edward IV describing the domestic the sqixire's r» , i • i ^ nri. i household, economy ot the squire who can spend nity pounds a year, may be compared with Hugh Latimer's often-quoted account of his father's yeoman household. Of his £50 the squire spends in victuals £24 65; on repairs and furniture £5 ; on horses, hay and carriages £4 ; on clothes, alms and oblations £^ more. He has a clerk or chaplain ^, two valletti or yeomen, two grooms, ^ garciones,' and two boys, whether pages or mere servants ; and the wages of these amount to £9 ; he gives livery of dress to the amount of £2 105., and the small remainder is spent on his Compared bounds and the charges of hay-time and harvest^. Hugh the yeoman. Latimer's father was not a freeholder, but farmed land at a rent of from £3 to £4 ; from which he ' tilled so much as kept half a dozen men.' His wife milked thirty kine ; he had walk for a hundred sheep. He was able and did find the king a harness with himself and his horse, until he came to the place of muster where he began to receive the king's wages : this of course was a rare piece of occasional service. He could give his daughters at their marriage £5 or 20 nobles each. He sent his son to school, and gave alms to the poor: 'and all this he did of the same farm; where he that now [in 1549] hath it payeth £16 by the year or more, and is not able to do anything for ^ * Clericus ' at 40s. wages. The 07'dinary fee of a chaplain which gave him a title for holy orders was fixed by a constitution of archbishop Zouch at a maximum of 6 marks (£4). In 1378 the choice was given between 8 marks and 4 marks with victuals ; see above, vol. ii. p. 446 ; Johnson, Canons, ii. 405. ^ Ordinances of the Household, p. 46. XXI.] The Yeomanry, 555 his prince or for himself or for his children, or give a cup of Comparison 1 • 1 1 J mi 1 1 f c • ^ ' • of squire and drink to the poor ^. The balance of comfort in this comparison yeoman, is in favour of the yeoman. The wills and inventories of the well-to-do freeholder and Comparative comfort of farmer furnish similar evidence of competency ^ ; and these are tlie yeoman an irrefragable answer to the popular theories of the misery and discomfort of medieval middle-class life : all the necessaries of living were abundant and cheap, although the markets were more precarious owing to there being no foreign supplies to make up for bad harvests, and the necessary use of salted pro- visions during great part of the year was an unwholesome burden which fell heavily on this class ; the supply of labour was fairly proportioned to the demand ; the life of the country was almost entirely free from the evils that in modern times have resulted from the overgrowth or unequal distribution of population. The house of the freeholder was substantially but simply fur- nished, his stores of clothes and linen were ample, he had money in his purse and credit at the shop and at the market. He was able in his will to leave a legacy to his parish church or to the parish roads, and to remember all his servants and friends with a piece of money or an article of clothing. The inventory of his furniture, which was enrolled with his will, enables the anti- quary to reproduce a fair picture of every room in the house : there were often comforts and even luxuries, although not such as those of later days ; but there was generally abundance. It is of course to be remembered that only the fairly well-to-do yeoman would think it worth while to make a will ; but also it was only the fairly well-to-do yeoman who could contribute to the political weight of his class. 805. If the 'vadlettus' of the reign of Edward II distinctly The* valetti' answered to the ' vadlettus' of 1446, we should have in him g^^^^^^"^^"' certain link between the ' liberi homines ' and ' libere tenentes ' ^ First sermon before Bang Edward, cited in the Preface to the North- umberland Household Book, p. xii. No evidences on social matters are half so convincing as wills and inventories ; and fortunately large selections of medieval wills are now in print or accessible : seven volumes of Yorkshire and Durham wills have been issued by the Surtees Society. 55^ Constitutional History. [chap. Return of of Henry II and the yeomen of the fifteenth century. In 1 3 1 1 valetti to _^ . . jjarliament. Kutland returned two ' homines ' to parliament because there were no knights, and in 1322 several counties returned ' valletti ' in the same capacity ^ : this was doubtless done on the principle according to which Henry II allowed ' legales homines/ in de- fault of knights, to act as recognitors. But it would seem more probable that the class which furnished the 'valletti' of 1322 was that of the squires, and that they themselves would have Valetti are been a few years later called ^armigeri.' On the other hand, X446. the 'valletti' of 1446, whom the sheriffs are forbidden to return as knights, are certainly yeomen. The statute enumerates the classes who may be chosen, notable knights, or notable squires, — gentlemen of birth, and excludes those who are ' en la degree de vadlet et desouth But, as has been already stated, very little can be inferred from this act ; for although it is distinctly aimed at the exclusion of persons of inferior rank from the body of knights of the shire, it does not appear to have caused any The act of chanj^e in the character of the persons returned. In every 1446 did not °, ^ r . materially county the same family names recur before and alter the passing affect the ^. ^ . . .^ii i representa- 01 the act, and it Can only be conjectured that the statutory change was called for by the occurrence of some particular scandal the details of which have been forgotten. As it stands, however, it proves that the position of a knight of the shire was not farther removed from the ambition of a well-to-do yeoman, than it is from that of the tenant farmer or gentleman farmer of the present day. The precedent of 1322, if it applies at all, is weakened by the fact that there was a strong reluct- ance in the knights to undertake the task of representation, and a consequent anxiety on the part of the sheriff to return any one who was willing to attend. Political in. 806. It is not then in the point of eligibility to serve in par- ySSiry.^^ liament, but in the collective weight given by the right of fran- chise, that we must look for the real political influence which the yeomanry exercised. What was the exact state of affairs which the forty-shilling franchise was intended to remedy, can only be conjectured, for plain as the words of the statute seem, 1 See above, p. 397. ^ See above, pp. 401, 402. XXI.] Electoral Franchise. 557 they are met by what seems equally conclusive evidence in the The statute lists of the knights returned. By the existing law the elections chise in- were to be made by all who were present at the county court; secure order, according to the popular interpretation of that law, as the statute the balance informs us, they were made by persons of little substance and tatS^^^^^ no value \ that is, by the medley multitude that held up their hands for or against the nominees of the hustings. It is a natural inference from the changes which had been going on since 1381 to suppose that the self-enfranchised villeins may have formed a formidable part of these assemblies ; or that the Wycliffite or socialist mobs that rose under Jack Sharp, a year later ^, attempted in certain cases to turn the election in favour of unworthy candidates. But these are mere coniectures. It Illustrations 1 P , , , ^,11 from the happens fortunately that the returns for both 1429 and 1 431 returns to are extant ; and a careful scrutiny of the lists of the two par- liaments will show that there is no difference whatever in the character and position of the knights elected. In both parlia- , ments they are almost exclusively members of families which furnished knights to both preceding and succeeding parliaments, and out of whose number the sheriffs were selected. The altera- tion of the franchise made no change in this ; and the necessary inference from the fact is that the words of the statute, describ- ing the character of the elective assemblies with a view to their reform, must not receive a wider interpretation than literally belongs to them ; the county courts were disorderly, but it does not follow that unfit persons were elected, or that any great constitutional change was contemplated. Into the status of the forty-shillinojs' freeholder it is impossible Less clear in . , , . , ^ -i-n the later to mquire with complete certamty; that sum was the qualmca- acts. tion of a juror and was probably for that reason adopted as the qualification of an elector. But on any showing, if £50 was the annual expenditure of a small country squire, an act which lodged the franchise in the hands of the forty-shilling freeholder cannot be regarded as an oligarchic restriction The later effects of the change in the law cannot have been within the contem- plation of its authors. * See above, p. 412. 2 ggg above, p. 112, 558 Constitutional History, [chap. General in- "With the more distinct evidence of the act and writs of ference on the subject. 1 446 and 1 447 it is less easy to deal, for the returns of pre- vious years are incomplete, and it must be allowed that unfit persons had probably made their appearance as knights of the shire. But the act of 1446 did not alter the franchise, it merely attempted the more complete regulation of the elective assemblies, and the exclusion of members who were below the customary rank ; in this point following the precedents of the earlier reigns. These considerations then do not much qualify our general conclusion that both before and after the act of 1430 the franchise was in the hands of the substantial free- holders, and that both before and after 1446 the representation of the counties was practically engrossed by the gentry ; the elec- tion of a yeoman knight of the shire was not impossible or im- probable, but no proof of such election having been made is now forthcoming. It may be remarked by the way that in 1445 political feeling was already rising, and that in 1447 it had risen to a dangerous height. Duke Humfrey, whose over- throw was contemplated in the parliament of the latter year was, however undeservedly, a favourite with the commons, and it would not have been a strange weapon in the hands of political agents to term the leaders of the opposing party yeo- men, ignoble, neither knights nor gentlemen. Condition of 807. From the condition of the commons of the shires we the com- . . _ t • p i inons in the turn to a much more intricate subject, the condition of the com- boroughs. mons of the boroughs, and the questions touching town constitu- tions generally, which have arisen since we left them in an earlier chapter, just achieving municipal independence. The difficulty of this investigation consists in the fact that whilst certain general tendencies can be traced throughout the whole of the borough history, the details of their working vary so widely, and the Absence of results are so divergent. It is possible to detect a certain deve- progress.^ lopment, now towards liberty, now towards restriction, and to account for local struggles as resulting in definite steps one way or the other ; but it is not easy to combine the particulars into a whole, or to formulate any law of municipal progress. It is possible that, had there been any such law, or had there been more XXI.] Municipal History, 559 decided concert between the several borou^'lis, the influence of the Insignifi- . Ill cance of town members in the house of commons would have been more town mem- . . bers in distinctly apparent. Throughout the middle ages it scarcely can parliament j be detected at all except in two or three very narrow points ; a tendency to precision in mercantile legislation, a somewhat illiberal policy towards the inhabitants of towns who were not privileged members of the town communities \ and an anxiety to secure local improvements ; the only important act attributed to any borough member is that for which the member for Bristol, Thomas Young, was imprisoned, in 1450, the proposal to declare the duke of York heir to the crown ; and the only distinct act of the borough members as a body is the gi'ant of tunnage and poundage, at the request of the Black Prince. The two limits of municipal change, between the reign of General ^ Henry III and that of Henry YII, may be simply stated. In municipal 1 2 16 the most advanced among the English towns had sue- during the ceeded in obtaining, by their respective charters and with local differences, the right of holding and taking the profits of their own courts under their elected officers^, the exclusion of the sheriff from judicial work within their boundaries, the right of collecting and compounding for their own payments to the crown, the rio^ht of electing^ their own bailiffs and in some instances of electing a mayor ; and the recognition of their merchant guilds by charter, and of their craft guilds by charter or fine. The combination of the several elements thus denoted was not complete ; the existence of bailiffs implies the existence of a court leet and court baron or court customary of the whole body of townsmen ; the existence of the merchant guild implies an amount of voluntary or privileged association which in idea, * See vol. ii. p. 463. ^ In many of the towns which are called ' hundreds ' in Domesday, and doubtless in others, the right of holding their own courts was already established (vol. i. pp. 94, 408). In other cases, as at Dunwich, ' sac and Boc' were given by charter (Select Charters, p. 303). In towns like Beverley, which were under a great lord, the jurisdiction remained with him, and the courts were held by his officers, the merchant guild confining itself to the management of trade and local improvements. For the com- pletion of municipal judicature, it would appear that these three points were necessary, the holding of the courts, the reception of the fines, and the election of the bailiffs or mayor. 55o Constitutional History/. [chap. Condition of whatever may have been the case m fact, is m contrast with tomis at the , . ^^ t> ^ i i • close of the the universality and equality of the courts leet ; the relations of the craft guilds to the merchant guild are by no means definite; and the character of a communa, which is symbol- ised by the title of the mayor, is not clearly reconcileable either with the continued existence of the ancient courts, or with the restrictive character of the merchant guild. Such in very general terms is the condition of affairs at the starting- point. At the close of the period the typical constitution of a town is a close corporation of mayor, aldermen and council, with precisely defined numbers and organisation, not indeed uniform but of the same general conformation ; possessing a new character denoted by the name of corporation in its defi- nite legal sense ; with powers varying in the different commu- nities which have been modified by the change, and in practice susceptible of wide variations. Between these two limits lies a good deal of local history which it is scarcely possible even briefly to summarise. Points to be 808. The most important preliminary points to be determined 6X3.111 incd are these : the first, at what date does the chief magistracy pass from the old bailiffs or praepositi to a mayor, whose position gives to the town constitution a unity which is not apparent before ; the second, what is the precise relation of the merchant guild to the craft guild on the one side and to the municipal government on the other ; and thirdly, how were those bodies finally created and constituted to which charters of incorpora- tion were granted. Office of The first historical appearance of the office of mayor is in mayor. London ^, where the recognition of the communa by the national council in 1191 is immediately followed by the mention of Henry Fitz-Alwyn as mayor : he retained the office for life, and in 1 2 15, three years after his death, John granted to the citizens, or recognised, the right of electing their mayor annually ^. In ^ In the lists of mayors of other places,, e.g. Oxford and York, there are names much earlier than 1191, but no reliance can be placed upon the lists, and if the persons designated really bore the name, it must be regarded as an imitation of continental usage which has no further constitutional significance. ^ Select Charters, p. 306 ; Rot. Chart, p. -207. XXI.] Merchant Guilds. 561 the year 1200, twenty-five citizens had been chosen and sworn institution . . . , ^ of aldermen, to assist the mayor in the care of the city ^ ; if these twenty -five jurats are the predecessors of the twenty-five aldermen of the wards, the year 1200 may be regarded as the date at which the communal constitution of London was completed. The more ancient designation. of barons, with sac and soc' in the several franchises, would gradually disappear. The title of alderman had been applied in the reign of Henry II to the head of a craft guild ^ ; early in the reign of Henry HI the twenty-five wards appear ] and, as the name ' Aldermaneria ' seems to be used exchangeably with ' Warda,' thus much of the municipality was already in existence. Before the end of John's reign, York, "Winchester and Lynn, and many other towns, had their mayors ; possibly by special grants or fines in each case, but more probably by a liberal interpretation of the clause inserted in their charters, by which they were entitled to the same liberties as London. In those towns in which there was no mayor the presidency of the local courts remained with the bailiffs, whether elected by the townsmen or nominated by the lord of the town. The development however of the idea of municipal completeness as represented by a mayor and aldermen may be placed at the very beginning of the thirteenth century ^. ^ ' Hoc anno fuerunt xxv electi de discretioribus civitatis et jurati pro coasulendo civitatem una cum majore'; Lib. de Antt. Legg. p. 2. There are now twenty-six wards, two of them sub-divisions of older wards. One, • Cordwainer,' retains the name of a guild; Castle Baynard that of a mag- nate, Portsoken that of the ancient jurisdiction of the Cnihtengild and Portreeve. All the rest are local divisions, Faringdon Without was created in 1394; Rot. Pari. iii. 317. In 1229 the Aldermanni acted with the ' magnates civitatis ' in framing a law ; Lib. de. Antt. Legg. p. 6. These must have been the aldermen of the wards, the magnates being the lords of franchises, such as the lord of Castle Baynard, and the ecclesiastical dignitaries who joined in the government of the city, such as the Prior of Trinity Aldgate. * See Madox, Hist. Exch. p. 490. Of the wards there mentioned all are designated by the name of the alderman of the time except the ' Warda Fori,' or Cheap, Portsoken, and Bassishaw ; Michael de S. Elena was pro- bably the alderman of Bishopsgate ward. Under Edward II the wards had all acquired the names which they still bear ; ib. p. 694 ; Firma Burgi, p. 30. In a list of aldermen of adulterine guilds in 11 80, three appear as aldermen of the Gilda de Ponte. 3 The following towns are mentioned as having mayors in the Rolls of John : Bristol, York, Ipswich, London, Lynn, Northampton, Norwich, Oxford, and Winchester. VOL. III. O O Constitutional History. [chap. Relations of The liistorv of the merchant guild, m its relation to the craft the guilds. „ ^ , , ^ ^ , . . , guild on the one hand, and to the municipal government on the impoi-tance other, is very complex. In its main features it is a most im- of the Strug- . . gle for class portant illustration of the principle which constantly forces l)rivilege. ; . . . ... itself forward in medieval history, that the vindication of class privileges is one of the most effective ways of securing public liberty, so long as public liberty is endangered by the general pressure of tyranny. At one time the church stands alone in her opposition to despotism, with her free instincts roused by the determination to secure the privilege of her ministers ; at another tlie mercantile class purchase for themselves rights and immunities which keep before the eyes of the less highly favoured the i^ossibility of gaining similar privileges. In both cases it is to some extent an acquisition of exclusive privilege, an assertion of a right which, if the surrounding classes were already free, would look like usurpation, but which, when they are downtrodden, gives a glimpse and is itself an instalment of liberty. But when tlie general liberty, towards which the class privilege was an important step, has been fully obtained, it is not unnatural that the classes which led the way to that liberty should endeavour to retain all honours and privileges which they can retain without harm to the public welfare. But the original quality of exclusiveness which defined the circle for whicli privilege was claimed still exists ; still it is an immunity, a privilege in its strict meaning, and as such it involves an exception in its own favour to the general rules of the liberty now acquired by the community around it ; and if this is so, it may exercise a power as gi-eat for harm as it was at first for good. Such is one of the laws of the history of all privileged corporations ; fortunately it is not the only law, and its working is not the whole of their history. It applies however directly to the guild system. Aniiqrityof The great institution of the ' gilda mercatoria ' runs back, as the guilds. ° we have seen, to the Norman Conquest and far beyond it ; the craft guilds, the * gilda telariorum,' the ^ gilda corvesariorum ' and the like, are scarcely less ancient in origin, but come promi- nently forward in the middle of the twelfth century. The ' gilda mercatoria ' may be regarded as standing to the craft XXI.] Merchant Guilds. 5^3 guilds either inclusively or exclusively; it might incorporate them and attempt to regulate them, or it might regard them with jealousy, and attempt to suppress them. Probably in different places and at different stages it did both. It would Relation of ^ ° the gil'la be the i:>lace of the aldermen, and gradually edged out the bailiff, but merchant the portman-mote and the merchant guild retained their names and functions ; the latter as the means by which the freemen of the borough were enfranchised, whilst the former was the court in which they exercised their municipal functions. Under this merchant guild were the craft guilds ; the tailors' guild paid ten shillings to the merchant guild for every new master tailor enfranchised, and doubtless the other trades were under similar obligations. In 1464 Edward IV recognised the position of 5^^ Constitutional Eistori/. [chap. Municipal constitution of Leicester. Constitution of Worcester: Shrewsbury Exeter; BristoL Political troubles at aristol. twenty-four comburgesses or mayor's brethren, and a court of common council who, in 1467, were empowered to elect the mayor. In 1484 the twenty -four took the title of aldermen, and divided the town into twelve wards ; and in 1489 the mayor, twenty-four and forty-eight councillors formed themselves into a strictly close corporation ; took an oath by which all the other freemen were excluded from municipal elections, and obtained an act of parliament to confirm their new constitution : a new charter was granted in 1504 ^. At Worcester, the merchant guild maintained a still stronger vitality, and was indeed the governing body of the city, the bailiffs, twenty-four and forty-eight being the livery men of the guild ; but the constitution is more liberal at Worcester than at Leicester^. At Shrewsbury, on the other hand^ although the constitution to some extent resembles that of Worcester, there is no mention of the guild in the act which created the cor- poration ^. At Exeter, where the merchant guild was not one of the privileges originally granted, we find the mayor and burgesses exercising or attempting to exercise supreme authority over the craft guilds ^. At Bristol, there had been a merchant guild, but there, as at York, it had merged its existence in the communal organisation; in the year 13 14, there was an association of fourteen of the greater men of the city, who were stoutly resisted by the community ; the quarrel between the two bodies was one of the minor troubles of the reign of Edward II, and was rather of a political than of a municipal character, although the oligarchy of fourteen strengihened themselves by alliance with the royal oflBcers, and the common- alty, with the covert assistance of the opposition, carried on a local war for some four years. Bristol was now the third, if not the second, town in the kingdom, and it was probably with a view of consolidating its constitution, as well as by way of * Nichols, Leicestershire, i. pp. 374, 380, 383, 385. ^ Nash, Worcestershire, ii. pp. cx sq.; Green, Hist. Worcester, ii. 31 sq. ; Smith's Gik1s, pp. 370 sq. 2 Rot. Pari. iv. 476, v. 1 21. * Izaack's Exeter, pp. 89, 91 ; Snuth's Gilds, pp. 297 sq. XXT.] Constitution of Boroughs, 583 compliment, that Edward III in 1373 gave it a shire organ- isation \ In some towns which were part of the demesne or franchises Towns in of prelates, the relation between the lord and the municipal prelates, organisation gave a peculiar colour to the whole history. Two or three such cases may be mentioned here. Beverley was Constitution ol Beverley \ an ancient possession of the see of York ; there the archbishop retained his manorial jurisdiction until the Reformation, when he exchanged the manor for other estates. But although he retained jurisdiction, the townsmen in their guild, erected under archiepiscopal charter and with royal licence, administered the property and regulated the trade of the town, by a body of twelve goveriiours ; on one or two occasions they attempted, during vacancies of the see, to have some of their governours appointed justices of the peace, but in this they were defeated by the new archbishops. The constitution of a council of twenty-four to assist the twelve was ratified by the archbishops, and became a permanent part of the constitution, which, after the town became a royal borough, was completed by the addition of a mayor and aldermen. In Beverley the rights of the archbishop were older than that of the merchant guild ^. In Ripon, another franchise of the arclibishop, there was noofRipon; chartered merchant guild ; the jurisdiction was exercised by the bailiffs in the manorial courts, and the elective wakeman, an official of very ancient origin and peculiar to this town, had certain functions in the department of police. In both places there was generally harmony between the lord and the town. At Reading it was otherwise^. Reading had an of Reading, ancient merchant guild which claimed existence anterior to the date at which the town was given to the abbey by Henry I. There was in consequence a perpetual conflict of jurisdiction between the mayor with Iiis guild and the abbot with his courts leet and baron. In 1253 there was open war between the two bodies ; the abbot had seized the merchant guild and destroyed * See Seyer's Charters of Bristol, p. 39. ^ See Scauin's Beverlac, i. pp. 149-321. ^ Coates, History of Reading, pp. 49-56. 584 Constitutional History, [chap. Municipal the market; under royal mediation the townsmen bought their troubles at ,^ • mii iiiii- Reading. peace, their guild and corporate property, the abbot being allowed to nominate the warden of the guild. In 1351 the mayor, and the commons who had chosen the mayor, insisted on their right to appoint constables; this the abbot claimed as appurtenant to his manor ; this dispute ran on to the reign of Henry YII. The election of the mayor himself was another bone of contention. The abbot had chosen the warden of the guild from three persons selected by the brethren; in 1460 the abbot chose the mayor ' cum consensu burgensium.' But in 1 35 1 the right of choosing the mayor was claimed as an im- memorial privilege of the burghers. An end was put to these contests by the charter of Henry YII, which divided the town into wards and prescribed the rights of the guildsmen. Similar difficulties marked the earlier history of Winchester and other towns where the bishops claimed not the whole, but a distinct quarter. But these instances must suffice. No general The first and perhaps the only distinct conclusion that can be growth to be drawn from these details is that the town constitutions reached traced in . i • , i • -i ^ ^ r - detail. the stage at which they were recognised by charters 01 mcor- poration, rather by growth than by any act of creation. Where the constitution of the guild had been insufficient for the administration of the boroutjh, or where there had been no guild, some plan of electing a permanent or annual committee of councillors to assist the mayor or the bailiffs had sprung up. In the same way, where the ancient machinery of court -leet and court-baron had worn itself out, the want of magisterial experi- The town ence or authority bad been supplied by an elected council. Such councils of . - . . . o i • twenty-four, in their origin were the 'twenty-iour in corporations like Cambridge and Lynn, where they acted as a common council ; the 'twenty-four' at York, who were the aldermen that had passed the chair, the name bearing no reference to the existing number ; such were too the mayor's brethren at Leicester. The constant recurrence of the number of twenty-four in this connexion may possibly imply an early connexion with the jury system, and the 'jurati' of the early communes, which again must have been connected with the system of the hundred court. XXI.] Municipal History, 585 as exhibited in the East Anglian counties. The division of the Division into larger towns into wards can scarcely be accounted for upon any- one principle applicable to all cases ; for it took place at very different times in different towns; the simplest way of accounting for it is to suppose that it was intended to supply a more efficient police system. The connexion of the aldermanship with the Office of , . . , . . . . alderman, ward vanes in dinerent towns ; m some it is a result, as in London, of the coalition of several jurisdictions \ in others, as in Winchester, of the sub-division for the purposes of police ; in others, as in York, it is of late origin, and simply a measure of local reform. Finally, in all the cases cited, there is a General common tendency towards the general type of an elective chief *^^^* magistrate, with a permanent staff of assistant magistrates, and a wider body of representative councillors — in other words, to the system of mayor, aldermen, and common council, which with many variations in detail was the common type to which the charter of incorporation gave the full legal status. The several marks of a legal corporation, which were Legal idea of impressed, conferred, or perpetuated by the charter of incor- poration, are five in number : the right of perpetual succession, to sue and be sued by name, to purchase lands, to have a common seal, and to make by-laws^. The first involved, in the case of towns and collective organisations generally, the right of perpetuating its existence by filling up vacancies as they occur; and this right was exercised by all the organised communities, whether by guild or leet, or by mere admission to civic privileges, from the earliest times. It is true that the early charters were granted to the burghers and their heirs, but although the form implied simple inheritance, the power of admitting new members, a power of very primitive antiquity, involved the idea of succession, and secured it. In the same Prescriptive way a town could be sued or sue, could be fined or otherwise boroughs, punished by royal authority as a whole, long before charters of incorporation were granted. Again, the ancient guilds could hold property; the towns themselves, whether as organised guilds or as ancient communities of land-owners like the village ^ Blackstone, Comm. i. 475. 586 Constitutional History, [chap. Right of acquiring land. Common seal and by-laws. Grants of charters of incorpora- tion. Increase of deflniteness in the char- tered cor- porations. communities, could hold land in common ; and although in the latter case the basis of the common ownership was inheritance, the grants of land to the burghers and their successors were sufficiently early to prove that there was no recognised bar to the possession of corporate property even in the fourteenth century. It was in the reign of Richard II that the acquisition of land by guilds was first made subject to a licence of amor- tization, a fact which proves that the power of acquiring witliout such licence had not as yet been limited by law. The common seal and the right to make by-laws had been enjoyed by the boroughs from time immemorial, the latter by the original borough charter, if not earlier, the former from the date at which public seals came into common use. Thus viewed, all the ancient boroughs of England, or nearly all, must have pos- sessed all the rights of corporations and have been corporations by prescription long before the reign of Henry YI ; and the acquisition of a formal charter of incorporation could only recognise, not bestow, these rights. These new charters were, however, required in many instances to give firmness and consolidation to the local organisations which had been up to this time a matter of spontaneous and irregular growth ; they gave to the local by-laws the certainty of royal authorisation, and they served to bring up the general status of the privileged communities to the point at which the lawyers had fixed the true definition of incorporation. Before the complete charter was devised, some towns, Shrewsbury for instance, had procured an act of parliament to secure their local constitutions ; it was on the whole easier to procure a royal charter. From the reign of Henry YI these charters were multiplied, and they contained both a recognition of the full corporate character of the town and some scheme of municipal constitution^. As time advanced these schemes were made more and more definite, and contained more precise rules for proceeding. The charter of Henry YI to Southampton mentions only a mayor, bailifis, and burgesses, ^ The charter of Hull, 18 Hen. VI is said to be the first charter in which incorporation is distinctly granted to a town ; Merewether and Stephens, p. xxxiv. XXI.] The Corporations. 587 and that of Edward lY to Wenlock only a bailiff and bur- More exact . organisation. gesses ; in such cases the corporate government already exist- ing was merely confirmed or recognised. A century later the number of aldermen and councillors is often prescribed ; and a century later still, in the reign of Charles II and onwards, alterations are made in the constitution of the several bodies, not only by royal nomination of individual aldermen and councillors, but by varying the numbers and functions of the several bodies that formed the corporations. These changes for the most part lie a long way beyond the Irregularity point at which our general view of the social state of England must growth, now stop, but the later development of the corporation system serves to illustrate a tendency which is already perceptible in the fifteenth century. Much of the freedom of the town system was inseparable from the idea of growth : with the definite re- cognition conferred by the charters of incorporation comes in a tendency towards restriction. The corporate governing body Tendency becomes as it were hardened and crystallised, and exhibits a restriction, constantly increasing disposition to engross in its own hands the powers which had been understood to belong to the body of the burghers. The town property comes to be regarded as the property of the corporation; the corporation becomes a close Oligarchic oligarchy ; the elective rights of the freemen are reduced to a minimum, and in many cases the magistracy becomes almost the hereditary right of a few families. The same tendency exists in the tradincj companies also. The highest point of Exclusive 1 , 1 , , , , . . political grievance is reached when by royal charter the corporation is riijhts. empowered to return the members of parliament. And this power, notwithstanding the legal doctrine that such a mono- poly, although conferred by royal charter, could not prejudice the already existent right of the burgesses at large, was in many cases, as we have noted already, exercised by the municipal cor- porations until it was abolished by the Reform Act of 1832. The highest development of corporate authority bad in some T nvrt made few instances been reached, a century before the charter Qf'^^^^'^^- incorporation was invented, in the privileges bestowed on some of the large towns when they were constituted counties, with Constitutional History. [chap. swre con- sheriffs and a shire jurisdiction of their own. This promotion, stitutionof . . large towns, if it may be so called, involved a more complete emancipation than had been hitherto usual, from the intrusion of the sheriff of the county ; the mayor of the privileged town was consti- tuted royal escheator in his place, and his functions as receiver and executor of writs devolved on the sheriffs of the newly con- stituted shire ; a local franchise, a hundred or wapentake, was likewise attached to the new jurisdiction, in somewhat the same way as the county of Middlesex was attached to the corporation of London. After London, to which it belonged by the charter of Henry I, the first town to which this honour was granted was Bristol, which Edward III in 1373 made a county with an elective sheriff. In 1396 E-ichard II conferred the same dignity on York, constituting the mayor the king's escheator, institut- ing two sheriffs in the place of the three primitive bailiffs, and placing them in direct communication with the ro^^al exchequer. Newcastle-on-Tyne was similarly promoted in 1400, Norwich in 1403, Lincoln in 1409, Hull in 1440, Southampton in 1448, Nottingham in 1449, Coventry in 1451, and Canterbury in 1 46 1. At later periods, Chester, Exeter, Gloucester, Lichfield, Worcester, and Poole were added to the number of ' counties corporate ^/ Political 812. It is by no means easy to ascertain the definite amount of town of political consciousness which underlay the municipal strug- gles of medieval England ; or even to determine the direction in which the influence of municipal feeling helped the national advance. On the other hand it is very easy to speculate on the affinities and analogies of continental town history and to draw a picture of what may have been. Some speculation indeed is necessary, but it must be guarded with many provisoes and hedged in with stubborn facts. It has been already remarked more than once that the battle of the medieval constitution, so far as it was fought in the house of commons, was fought by the knights of the shire. This fact is capable of two explana- * I must content myself here with a general reference to Merewether and Stephens on the History of Corporate Boroughs, where most of the details given above may be found. XXT.] Political Weight of the Towns, 589 tions ; it may imply the hearty concurrence of the town repre- Insignifi- .1,. T i.--f> canceofthe sentatives, or it may imply their neutrahty and insignificance, tovras in As they are seldom even mentioned in connexion with the greater struggles of the fourteenth century, it is impossible to determine from any positive evidence which was really the case. But there are some reasons for doubting whether political fore- sight was to any considerable extent developed in the towns. In parliament, throughout the fourteenth century, the presence of the borough members is only traceable by the measures of local interest, taken on petitions which we must infer to have been presented by them, local acts for improvement of the towns, paving acts, diminution of imposts in consideration of the repair of walls, and the redress of minor m-ievances. Out- Action of the , , mercantile side the parliament, the merchant interest of Enj^land is seen to interest ... . T under have been nourished, utilised, and almost ruined by Edward III; Edward III. conniving at and profiting by his acts of financial chicanery and enabling him, by supplying money as long as it was forth- coming, to disregard the wishes of the nation expressed in the parliament. As the town members must have been in many cases the great merchants of the country, the only conclusion that we can draw from their conduct is that they thought it more profitable and more prudent to negotiate in private or half public assemblies with the king, than to support his claims for increased ejrants of money in parliament : out of parliament Subservience . . . , . to the knig. they were his pliant instruments, in parliament they were silent or acquiescent in the complaints of the knights. In an- other point, which affects the history of the following century, the inaction of the town members is remarkable : there is scarcely a vestige of an attempt to reform or even to regulate the borough representation. There is no trace whatever, except in the statute of 1382, of any interest felt on this point. There is a long string of petitions and statutes touching the shire represen- tation, from the year 1376 to the year 1445; but, with the ex- ception of a single complaint against the sheriffs in 1436, nothing answering to it on the part of the towns. Yet, as we have seen, the town franchise was in a very anomalous condition, subject generally to the manipulation of the governing bodies of the 590 Constitutional History. [chap. towns, whilst custom was nowhere so strong or so uniform as to have presented any obstacle to a general project of reform. Absence of In these two points must be read distinctly an insensibility in wSSin the represented classes of the towns as to the great questions at stake between the king and the nation, and as to the line on which political liberty was ultimately to advance. This absence of political insight may be explained in more ways than one : and in some ways which, although in themselves contradictory, may have been true in reference to different parts of the country. In some counties the towns followed with a good deal of sym- pathy the politics of their great neighbours, who also led the shires ; in others there was no doubt a rivalry, in England as How this elsewhere, between town and country. In some towns the SujatedTfor. family factions of the royal house, or of the neighbourhood, were reproduced and intensified, and the two representatives would be the nominees of two rival parties. In most of the towns however the members would almost certainly be the nominees of the local magistrates rather than of the great body of the commons ; and the facility or difficulty with which this result was secured would be the only index of any political aspiration in the inferior body. Traces of any such difficulty in the matter of parliamentary elections are, as we have seen, extremely rare ; but they are not altogether absent, and they have their re- Intemal flexions in the proceedings of parliament. In the reign of i?the towns. Richard II several petitions were presented in parliament which show that the strife between the govei'ning bodies and the craft guilds was not yet decided ; possibly the statute which subjected the guild lands to the restraints of the mortmain acts owed its acceptance to this jealousy ; and, more distinctly, the proposal to limit the right of the towns to enfranchise villeins, speaks of an intention in the represented classes to hold fast their power ^. The most offensive of these proposals were re- jected by the king, but they were made in the most subservient parliaments of the reign, and by that party no doubt which might have reckoned most securely on the king's support. But Richard had probably conceived the idea of appealing to the * See abovC; vol. ii. pp. 463, 485. XXI.] Tolicy of 'Richard II. lower stratum of the nation in order to crush the baronial oppo- Possible sition ; and with all his weakness he was clever enough to see between that, in the class which had risen against his ministers in i38i,andthe there was a power which it would be foolish to oppress, and*^^^"^* which it might be wise to propitiate. He Avould defend the villein against the burgher, the burgher against the knight, the knight against the baron, but it was that he himself might profit by the overthrow of all. And this has to be borne in mind in reading the whole of his most instructive history. There were many points in his policy which were, in themselves, far more liberal than the policy of the barons ; yet it was on the victory of the barons that the ultimate fate of the constitu- tion hung. Richard, very early in his career, would have saved the villeins when the parliament revoked the charters ; he re- fused to sanction later restrictive measures against them ; his court, if not himself, was strongly inclined to tolerate the Wyc- liffites ; many of the wisest measures against the papacy were passed during the time of his complete supremacy ; the barons and knights of the shire may be represented as a body of self- seekers and oppressors in these very points, and they certainly were in the closest alliance with the persecuting party in the church. Yet they were the national champions, and their vic- tory was the guarantee of national progress. If Kichard had overcome them England might have become the counterpart of France, and, having passed through the ordeal, or rather the agony, of the dynastic struggle and the discipline of Tudor rule, must have sunk like France into that gulf from which only revolution could deliver her. In the fifteenth century the towns seem to have shared pretty The politics evenly the sympathies of the dynastic parties; but they do not play, under the either in or out of parliament, an important part in the struggle. kSgs*!^^^^ They were courted by the kings as a counterpoise to the still over- • powering baronage, and by the aspirants to power against its actual possessors ; they were courted by Henry IV as against the party of Richard, and by the Yorkists against Henry VI ; and it was the absence of any popular qualities in Henry, as compared with the gallant and popular manners of the rival princes, which, 59^ Constitutional History. [chap. ttS^^oSe^of i^ore than any questions of deeper import, placed him at York^tothe a disadvantage regarding them. But the facility with which the Tudor succession was welcomed proved that there was no real affection felt for the house of York, and proves further that the towns as well as the nation at large were weary of dynastic politics. From that time the municipal organisation is strengthened and hardened, still with that tendency towards restriction w^hich betrays a want of political foresight : the victory of the trading spirit once won, the trading spirit shows itself as much inclined to engross power and to exclude compe- tition as any class had done before, different cannot be too carefully borne in mind, especially as we classes 9f approach more modern times and have to look at questions more society :n ^ ^ . . ^ the securing or less akin to those which divide modern opinion, that political progress proo;ress does not advance in a sinorle line, and political wisdom is towards . . . . liberty. the heirloom of no one class of society. There is an age of ecclesi- astical prevision, an age of baronial precaution, an age of municipal pretension; of country policy, of mercantile policy, of trade policy, of artisan aspiration : all, one after the other, putting forth their best side in the struggle for power, showing their worst side in the possession and retention of it. But in spite of selfish aims and selfish struggles for the maintenance of power, each contributes to the great march of national wellbeing, and each contributes an element of its own, each has a strong point of its own which it establishes before it gives way to the next. The church policy of the earlier middle ages was one long protest against the predominance of mere brute strength, whether exemplified in the violence of William Eufus, or in the astute despotism of Henry I : the baronial policy, which from the reign of John to the accession of Henry IV shared or succeeded to the burden of the struggle, was directed to the securing of self- government for the nation as represented in its parliament : and the country interest, as embodied in the knights, worked out in the fifteenth century the results of the victory : the other influences are only coming into full play as the middle ages close ; but we can detect in them some signs of the uses that they are still to serve. The country interest has still to con- XXI.] Social Injluences on Politics. 593 tinue the battle of self-government ; the mercantile spirit to influence of inform and reform the foreign policy; the trade influence to suits on" remodel and develop national economy; the manufacturing and^pro-^^^ influence to improve and to specialise in every region of national organisation. Such has been the result so far ; it is vain and useless to prophesy. But it would seem that the peculiar ten- dencies which are encouraged by the habits and trains of thought which these pursuits severally involve, have worked and are working their way into real practical influence as the balance of national power has inclined successively to the several classes which are employed on these pursuits. The churchman strug- gled for moral against physical influence, as for the cause [of the spirit against the flesh ; he forgot sometimes that the very law of the spirit is a law of liberty. The baron struggled for national freedom against royal encroachment ; the habits of the warrior and the hunter, the judge and the statesman, were all united in him ; the medieval baron was a wonderful imper- sonation of strength and versatility, and combined more great qualities, for good or for evil, than any of the rival classes ; but in the idea of corporate freedom the idea of individual and social freedom was too often left out of sight : the whole policy of the baronage was insular and narrowed down to one issue. The mercantile influence tended to widen the national mind; it grew under the Tudors to great importance and power, but it did not directly tend to the increase of liberty. The national programme of liberation had to be taken up under the Stewarts in a condition scarcely more develoj^ed than when it was laid down under the Lancastrian kings : only the nation had learned in the meantime more of the world, of diplomacy, of the balance of nations, and of the bearing of commercial alliances on do- mestic welfare. The economical and administrative reforms for which trade and manufacture train men until the balance of national power falls to them, are matters which we ourselves have lived to witness. What organic changes the further ex- tension of political power to the labourer in town and country may bring, our children may live to see. To return however to the special point. One fact remains to VOL. III. Q q 594 Constitutional History. [chap. The borough be considered, whicli must to a great extent modify all con- tfonwasm) clusions on the subject. The town members in parliament prffentation during the middle ages represented only a very small propor- of a class. ^.^^ towns, and those selected by the merest chance of accident or caprice. They were, as we have seen, very un- equally distributed, and were in no way, like the knights of the shire, a general concentration of local representation. In so far then as they represented an interest at all, they re- presented it very inadequately ; and if, as we have supposed, they represented chiefly the governing bodies among their con- stituencies, they are still further removed from being regarded Hence its in- as the true exponents of any element of the national will. And significance. ^^^.^ consideration will account in great measure for their insig- nificance in action and their obscurity in history. Social life of 813. Of the social life and habits of the citizen and burgher man. we have more distinct ideas than of his political action. Social habits no doubt tended to the formation of political habits then as now. Except for the purposes of trade, the townsman seldom went far from his borough ; there he found all his kinsmen, his company, and his customers ; his ambition was gratified by election to municipal office; the local courts could settle most of his legal business; in the neighbouring villages he could invest the money which he cared to invest in land ; once a year, for a few years, he might bear a share in the armed contingent of his town to the shire force or militia ; once in his life he might go up, if he lived in a parliamentary borough, to parliament. There was not much in his life to widen his sympathies; there were no newspapers, and few books ; there was not enough local distress for charity to find interest in relieving it; there were many local festivities, and time and means for cultivating comfort at home. The burgher had pride in his house, and still more perhaps in his furniture ; for although, in the splendid panorama of medieval architecture, the great houses of the merchants contribute aj distinct element of magnificence to the general picture, such houses as Crosby Hall and the Hall of John Hall of Salisbury] must always, in the walled towns, have been exceptions to the! XXI.] Borovgh Life. 595 rule, and far beyond the aspirations of the ordinary tradesman ; Comfort and but the smallest house could be made comfortable and even burgher, elegant by the appliances which his trade connexion brought within the reach of the master. Hence the riches of the inventories attached to the wills of medieval townsmen, and many of the most prized relics of medieval handicraft. Some- what of the pains, for which the private house afforded no scope, was spent on the churches and public buildings of the town. The numerous churches of York and Norwich, poorly endowed, Town cliui*cl]ics but nobly built and furnished, speak very clearly not only of the devotion, but of the artistic culture, of the burghers of those towns. The crafts vied with one another in the elaborate ornamentation of their churches, their chantries, and their halls of meeting; and of the later religious guilds some seem to have been founded for the express purpose of combining splendid religious services and processions with the work of charity. Such was one of the better results of a confined local sympathy. But the burj^her did not either in life or in death forget his Country . . . ... interests. friends outside the walls. His will generally contained directions for small payments to the country churches where his ancestors lay buried. Strongly as his affections were localised, he was not a mere townsman. Nine-tenths of the cities of medieval England would now be regarded as mere country towns, and they were country towns even then. They drew in all their new blood from the country; they were the centres for village trade ; the neighbouring villages were the play-ground and sporting-ground of the townsmen, who had, in many cases, rights of common pasture, and in some cases rights of hunting, far outside the walls. The great religious guilds just referred Religious to, answered, like race meetings at a later period, the end of^"^^' bringing even the higher class of the country population into close acquaintance with the townsmen, in ways more likely to be developed into social intercourse than the market or the muster in arms. Before the close of the middle ages the rich townsmen had begun to intermarry with the knights and gentry, and many of the noble families of the present day trace the foundation of their fortunes to a lord mayor of Q q 2 59^ Constitutional History, [chap. Intermar- riages with the country folk. No barrier between trade and gentry. Absence of ' profession, al ' classes. London or York, or a mayor of some provincial town. These intermarriages, it is true, became more common after the fall of the elder baronage and the great expansion of trade under the Tudors, but the fashion was set two centuries earlier. If the adventurous and tragic history of the house of De la Pole shone as a warning light for rash ambition, it stood by no means alone. It is probable that there was no period in English history at which the barrier between the knightly and mercantile class was regarded as insuperable since the days of Athelstan, when the merchant who had made his three voyages over the sea and made his fortune, became worthy of thegn - right : even the higher grades of chivalry were not beyond his reach, for in 1439 we find William Estfeld, a mercer of London, made Knight of the Bath^. As the mer- chant found acceptance in the circles of the gentry, civic office became an object of competition with the knights of the county ; their names were enrolled among the religious fraternities of the towns, the trade and craft guilds, and as the value of a seat in parliament became better appreciated, it was seen that the readiest way to it lay through the office of mayor, recorder, or alderman of some city corporation. 814. Beside these influences, which without much aff"ecting the local sympathies of the citizen class joined them on to the rank above them, must be considered the fact that two of the most exclusive and 'professional' of modern professions were not in the middle ages professions at all. Every man was to some extent a soldier, and every man was to some extent a lawyer ; for there was no distinctly military profession, and of lawyers only a very small and somewhat dignified number. Thus, although the burgher might be a mere mercer, or a mere saddler, and have very indistinct notions of commerce beyond his own warehouse or workshop, he was trained in warlike exercises, and he could keep his own accounts, draw up his own briefs, and make his own will, with the aid of a scrivener or a chaplain who could supply an outline of form, with but little fear of transgressing the rules of the court of law or ^ Ordinances of the Privy Council, vi. 39. XXI.] Townsmen and Yeomen. 597 of probate. In this point he was like the baron, liable to be Variety of called at very short notice to very different sorts of work. Finally, the townsman whose borough was not represented in parliament or did not enjoy such municipal organisation as placed the whole administration in the hands of the inhabitants, was a fully qualified member of the county court of his shire, and shared, there and in the corresponding institutions, every- thing that gave a political colouring to the life of the country gentleman or the yeoman. Many of the points here enumerated belong, it may be said, DiflFerence to the rich merchant or great burgher, rather than to the in towns ordinary tradesman and craftsman. This is true, but it must be ditferen^ remembered always that there was no such gulf between the rich merchant and the ordinary craftsman in the town, as existed between the country knight and the yeoman, or between the yeoman and the labourer. In the city it was merely the distinc- tion of wealth ; and the poorest apprentice might look forward to becoming a master of his craft, a member of the livery of his company, to a place in the council, an aldermanship, a mayoralty, the right of becoming an esquire for his life and leaving an honourable coat of arms for his children. The yeoman had no Different such straight road before him ; he might improve his chances, thf country as they came ; might lay field to field, might send his sons to ^^"^^'^^ war or to the universities ; but for him also the shortest way to make one of them a gentleman was to send him to trade ; and there even the villein might find liberty and a new life that was not hopeless. But the yeoman, with fewer chances, had as a rule less ambition, possibly also more of that loyal feeling towards his nearest superior, which formed so marked a feature of medieval country life. The townsman knew no superior to whose place he might not aspire; the yeoman was attached by ties of hereditary attachment to a great neighbour, whose superiority never occurred to him as a thing to be coveted or grudged. The factions of the town were class factions and political or dynastic factions, the factions of the country were the factions of the lords and gentry. Once perhaps in a century there was a rising in the Conditutional Hisiorif. [chap. Town struggles. Artisans and labourers. country^ ; in every great town there was, every few years, some- thing of a struggle, something of a crisis, if not between capital and labour in the modern sense, at least between trade and craft, or craft and craft, or magistracy and commons, between excess of control and excess of licence. 815. In town and country alike there existed another class of men, who, although possessing most of the other benefits of freedom, lay altogether outside political life. In the towns there were the artificers, and in the country the labourers, who lived from hand to mouth, and were to all intents and purposes The poorer ' the poor who never cease out of the land/ There were the classes. craftsmen who could or would never aspire to become masters, or to take up their freedom as citizens ; and the cottagers who had no chance of acquiring a rood of ground to till and leave to their children : two classes alike keenly sensitive to all changes in the seasons and in the prices of the necessaries of life ; very indifferently clad and housed, in good times well fed, but in bad times not fed at all. In some respects these classes differed from that which in the present day furnishes the bulk of the mass of pauperism. The evils which are commonly, however erroneously it may be, regarded as resulting from redundant population, had not in the middle ages the shape which they have taken in modern times. Except in the walled towns, and then only in exceptional times, there could have been no necessary overcrowding of houses. The very roughness and uncleanliness of the country labourer's life was to some extent a safeguard ; if he lived, as foreigners reported, like a hog, he did not fare or lodge woi*se than the beasts that he tended. In the towms, the restraints on building, which were absolutely necessary to keep the limited area of the streets open for traffic, prevented any very great variation in the number of inhabited houses; for, although in some great towns, like Oxford, there were consider- able vacant spaces which were apt to become a sort of gypsey camping-ground for the waifs and strays of a mixed population, most of them were closely packed ; the rich men would not dispense with their courts and gardens, and the very poor had to lodge outside the walls. In the country townships again, there Xot over- crowded : except in walled towns. XXI.] The Poor, 599 was no sucli liberty as has in more modern times been somewhat Villages not over-peopled. imprudently used, of building or not building cottage dwellings without due consideration of place or proportion to the demand for useful labour. Every manor had its constitution and its recognised classes and number of holdings on the demesne and the freehold, the village and the waste ; the common arable and the common pasture were a village property that warned off all interlopers and all superfluous competition. So strict were the Population - . , . . . - ofthecoun- barners, that it seems impossible to suppose tliat any great trj' varied increase of population ever presented itself as a fact to the ^^'^^ ^ ^' medieval economist ; or, if he thought of it at all, he nmst have regarded the recurrence of wars and pestilences as a provi- dential arrangement for the re-ailjustment of the conditions of his problem. As a fact, whatever the cause may have been, the population of England during the middle ages did not vary in anything like the proportion in which it has increased since the beginning of the last century; and there is no reason to think that any vast difference existed between the supply and demand of homes for the poor. Still there were many poor ; Classes of if only the old, the diseased, the widows, and the orphans are to be counted in the number. There were too, in England, as everywhere else, besides the absolutely helpless, whole classes of labourers and artisans, whose earnings never furnished more than the mere requisites of life ; and, besides these, idle and worthless beggars, who preferred the freedom of vagrancy to the restrictions of ill remunerated labour. All these classes were to be found in town and country alike. 816. The care of the really helpless poor was regarded both Religious as a legal and as a religious duty from the very first ages of viding for the poor. English Christianity. S. Gregory, in his instructions to Augus- tine, had reminded him of the duty of a bishop to set apart for the poor a fourth part of the income of his church ; and some vestiges of the usage, which does not seem ever to have been generally adopted, are found in the ecclesiastical legisla- tion of the fourteenth century: in 1342 archbishop Stratford ordered that in all cases of impropriation a portion of the tithe should be set apart for the relief of the poor. The neglect of 6oo Constitutional History. [chap. Legislation the poor was alleged as one of the crying sins of the alien clergy^. of the poor. The legislation of the witenagemotes of Ethelred bore the same mark ; a third portion of the tithe that belonged to the church was to go to God's poor and to the needy ones in thraldom ; it was enjoined on all Grod's servants that they should comfort and feed the poor. Even in the reign of Henry I the king was declared to be the kinsman and advocate of the poor. On such a point it is needless to multiply proof ; almsdeeds were always regarded as a religious duty, whether as an act of merit A duty of or as an act of gratitude. The dispensation of alms was as the clergy* a rule left to the clergy, just as the duty of inculcating alms- giving was chiefly left to them. The beneficed clergy in their parishes, the almoners of the monasteries, and the hosts of men- dicant friars, to some extent fulfilled the task, and certainly kept the duty of almsgiving prominently before men's eyes. Fulfilled by The guilds too, in each of their aspects, whether they were organised for police, for religious, social, or trade purposes, made the performance of this duty a part of their regular work. In the frith guild of London the remains of the feasts were dealt to the needy for the love of God ; the maintenance of the poorer members of the craft was, as in the friendly societies of our own time, one main object in the institution of the craft guilds; and even those later religious guilds, in which the chief object seems at first sight, as in much of the charitable machinery of the present day, to have been the acting of mysteries and the exhibition of pageants, were organised for the relief of distress Confiscation as well as for conjoint and mutual prayer. It was with this propSt^. idea that men gave large estates in land to the guilds which down to the Keformation formed an organised administration of relief. The confiscation of the guild property together with that of the hospitals was one of the great wrongs which were perpetrated under Edward VI ; and, whatever may have been the results of the stoppage of monastic charity, was one unques- tionable cause of the growth of town pauperism. The extant regulations and accounts of the guilds show how this duty was Johnson, Canons, ii. 364 ; Rot. Pari. iv. 290. XXI.] Beggars. 60 1 carried into effect ; no doubt there was mucli self-indulgence and display, but there was also effective relief ; the charities of the great London companies are a survival of a system which was once in full working in every market town. Side by side with the organisations for the relief of real Legislation poverty must be set the measures for the restraint of idleness begging, and begging. These formed a part of the legislation on labour which was attempted from the middle of the reign of Edward III, and which has been regarded by political economists as one of the great blemishes of medieval administration. The same principle of combination, which had its better side in the charity of the guilds, had, if not its worst, at least its most dangerous side, in the associations of the artisans for the purpose of enforcing a higher rate of wages. The great plague of 1348 caused such a terrible diminution of the population that the land was in danger of falling out of cultivation; labour was extremely scarce, and excessive wages were immediately de- manded by those who could work; excessive wages at once produced improvidence and idleness. As early as 1349, in the statutes of first ordinance on labour, it was found necessary not only to fix the amount of wages, and to press all able-bodied men into the work of husbandry, but to forbid the giving of alms to sturdy or valiant beggars The quick succession of enactments on this point shows the urgency of the evil and the inadequacy of the remedy sought in the limitation of wages and the prices of victuals, and in peremptory interference between the em- ployers and the employed. The ordinance of 1349 was followed by the statute of 1351 which, among other enactments, pro- vided a regular machinery by which the excess of wages paid to the labourers could be recovered from them by process before justices assigned for the purpose, the proceeds of these actions being appropriated, where the masters did not sue for it, to the relief of the local contributions towards the national taxes ^. In 1357 the money so recovered was assigned to the lords of franchises on the understanding ^that they should contribute * Statutes, i. 307. Statutes, i. 311, 312. 66% Constitutional History, [chap. statutes and to the expenses of the justices^. An almost immediate result of petitions on . • i p • p • • labour. this over-repression was seen m the formation of conspiracies among the carpenters and masons, the fliglit of labourers from their native counties, and the crowding of the corporate towns with candidates for enfranchisement. All these practices were attacked by the statute of 1362, but ineffectually, as the results showed'^. The statutes of 1349 and 1351 were confirmed in 1368 on the prayer of the employers of paid labourers, *la commune que vivent par geynerie de lour terres ou Mar- chandieV who have no lordships or villeins to serve them. In almost every parliament petitions were presented for the enforcement of the statutes, or for the increase of their strin- gency; but their chief result was the spread of disaffection and disorder. From the paid artificers the dread of servitude and the desire of combination spread to the villeins, against whose conspiracies for constraining their masters a statute was passed in 1377, and who were thus drawn or driven into participation with the rebellion of 138 1, for which at the time they suffered so heavy retribution. Although the events of that year tended to bring the employers to a more just sense of their relation to the employed, petitions every now and then emerge, showing that the lesson had not been completely learned, and from this time the cause of the villein and the artisan is one. Besides the petitions for the enforcement of the statutes, which are presented as late as the year 1482, statutes were passed in 1388, 1427, and 1430 confirming or amending the acts of Edward III*. As early as 1378 the commons had petitioned that agricultural labourers might not be allowed to be received into towns, tliere to become artisans, mariners, or clerks; in 1 39 1 occurs the famous petition that villeins may not be allowed to send their children to the schools ; in the first parliament of Henry IV the same feeling is displayed in a request that they may no longer be enfranchised by being received into a market town^. All attempts however either to compel the artisans ^ Statutes, i. 350. Statutes, i. 375. ^ Eot. Pari, ii. 296. * Statutes, ii. 63, 233, 244, Rot. Pari. iii. 294, 296, 448. XXI.] Lmos on the Poor. 603 to work at husbandry, or to prevent the villeins from becoming Deficiency of . . labour, artisans, failed ; the land went rapidly out of cultivation ; pas- turage succeeded tillage ; poverty in the labouring class became a growing evil, and the laws against the beggars grew more and more stringent. It is to the legislation of 1 388 that England owes her first glimpse First appear- apparently of a law of settlement and organised relief. The act of settle- by which the statute of labourers was confirmed and amended contained a clause which forbad the labourer to leave his place of service or to move about the country without a passport. Another clause directed that impotent beggars should remain in the places where they were at the passing of the statute, and that, if the people of those places would not provide for them, they were to seek a maintenance in other townships within the hundred or wapentake, or in the places where they were born, within forty days after the proclamation of the statute, there to remain during their lives \ The same intention appears in the acts of 1495 and 1504, which were no doubt an expansion of the statute of 1388, and which direct that beggars not able to work are to be sent to the place where they were born or have dwelt or are best known, to support themselves by begging within the limit of the hundred I All these acts refer to men- J^egislation . . ... for vagrant dicancy as if it were a recognised profession, m which both poor, pilgrims and poor scholars of the Universities were included, and such as was practised in Germany by both apprentices and students in much later times. It is probable, and indeed cer- tain, that for tlie poor who remained at home no such legisla- tion was needed : in the towns the guilds, and in the country the lords of the land, the clergy, and the monasteries, discharged the duty, whether on legal or religious grounds, of providing for the settled poor without putting them to unnecessary shame, 817. One class of the poor, the villein class, has engrossed The villeins, almost the whole of the interest which the sympathy of historical students can furnish for the medieval poor ; and in our former chapters we have attempted to gather from the extremely ^ Statutes, ii. 58. ^ Statutes, ii. 569, 656. 6p4 Constitutional History. [chap. Early obscure statements of legal writers, and in , spite of the diver- sities of local customs, some slight notion of their condition at different periods of our history. We have seen how in Anglo- Saxon times the relation of the landless man to his lord placed him under a protection which was liable to be merged in total dependence, whilst between him and the bondslave there still existed a difference so wide as to be really a difference in kind ; and how under the Norman government the differences of rank in the lower classes of the native population were probably confused ; the bondman possibly gained, whilst the villein for the time as certainly lost. Both were 'rustici' or ' nativi,' both had land on customary conditions, both were so far ' as- criptitii glebae,' that they could not leave their land without losing their all, or escape from the claims of their lord without the risk of being brought again into bondage. There was no doubt a strong tendency to make the servile relation altogether dependent on the tenure of land, and to put an end even to the forms of personal servitude, the disabilities which were attached to the blood as well as to the territorial status of the villein. Acts of By acts of emancipation or manumission the ' native' was made Son.^^^ a freeman, even though with the disabilities he lost the privileges of maintenance which he could claim on the land of his lord. And acts of emancipation were regarded by the church as meritorious. The old law books drew a distinction between the villein regardant and the villein in gross, and Sir Thomas Smith remarks that the distinction subsisted in his own time, although villenage was then altogether vanishing away. The villein regardant was a villein who laboured under disabilities in relation to his lord only; the villein in gross possessed none of the qualities of a freeman. It has been doubted whether the villein in gross is not altogether a figment of the lawyers, and English sentiment has always been adverse to considering any man of native blood as less than free. Until we have a much more thorough investigation of the manorial records than has been yet attempted, no decision can be arrived at on this point; but it appears certain from known instances that there were, down to the close of the XXI.] Fillenage. 60s middle ages, and perhaps longer, bondmen on many manors, Bondmen on to whom the definition of villein regardant would not apply. Possibly these were the survivors of the peasant population which had been servile before the Conquest ; or, possibly they had been depressed by the very definitions of the law which they are found to illustrate. All that is certain is that they were disqualified from all the functions of political life, and were, owing to their depressed social state, the objects of much pity. It is from the acts of manumission that we learn what little we know of their legal status ; and some of those acts of manumission are, in language at least, creditable to the age that encouraged them. 'Whereas,' writes bishop Sherborne of Chichester in 1 536, quoting a manu- the Institutes of Justinian, ' at the beginning nature brought forth bondman. all men free, and afterwards the law of nations placed certain of them under the yoke of servitude ; we believe that it is pious and meritorious towards God to manumit them and to restore them to the benefit of pristine liberty and on this consideration he proceeds to liberate Nicolas Holden, a ' native and serf,' who for many years has served him on his manor of Woodmancote and elsewhere, from every chain, servitude, and servile condition, by which he was bound to the bishop and his cathedral church; ' and, so far as we can,' he adds, ' we make him a freeman ; so that the said Nicholas, with the whole of the issue to be begotten by him, may remain free, and have power freely to do and exercise all and singular the acts which are competent to free men, just as if he had been begotten by free parents ^' All acts of manumission, it is true, are not worded like this ; but it is obvious that, in such an act, something more was done than the mere release of the villein from the services that were due by reason of his lord's right over the land which he occupied, and that the native so emancipated laboured under other disqualifications than those from which he could have delivered himself by obtaining his lord's leave to quit his holding. On whatever the hold of the lord over his ' native' was originally based, there were at the date of the Reformation, ^ From Bishop Sherborne's Register at Chichester; foKo 150. Other forms will be found in Madox, Formulate Anglicanum, pp. 416-420. 6o6 Constitutional History. [chap. Grades of villenage. Importance and after it, whole families who were liable to be sold as well as of manu- mission, to be emancipated. Against this is to be set the fact that the sums for which the villein and his whole family and chattels were transferred from one owner to another were so small as to prove that the rights thus acquired, however heavy the disabilities of the villein may have been, were worth little to the master; and from this it may be inferred that the act of manumission itself was intended rather to prove that the emancipated person was not disqualified for holy orders or for knighthood, than to give him the ordinary powers of a freeman. We may conjecture that the villein regardant had fallen into villenage by occupying some of the demesne of the lord on servile conditions, and that the villein in gross was a chattel of the lord whom he paid or maintained by a similar allotment of land ; tliat the former class could not be alienated without the land which they occupied, but were in most other respects free, whilst the latter might be sold from one manor to another, and were by reason of villein blood incapable of most legal acts; that the condition of the former was ameliorated and perhaps altogether made free by the substitution of rents for services from the tenant, and by the institution of copyhold titles, in which the custom of the manor fettered the will of the lord ; whilst the lot of the latter remained unimproved, except by separate manumissions, until the country was ashamed of such servitude, and thought it best to forget that it had ever existed. But, as has been already said, the obscurity of the question, and the certain diversities of usage, prevent us from offering any mere conjecture like this as a possible solution of the difficulty. 818. Whatever theoretical conclusion may be drawn touching the condition of the poor, and there is no occasion that either way it should be exaggerated by false sentiment, there is very little evidence to show that our forefathers, in the middle ranks of life, desired to set any impassable boundary between class and class. The great barons would probably, at any period, have shown a disinclination to admit new men on terms of equality to their own order, but this disinclination was over- borne by the royal policy of promoting useful servants, and the No barriers between classes. XXI.] Links between Banks. 607 baronage was recruited by lawyers, ministers, and warriors? Blending of . , . -I -m 1 • • -1 society by who m the next generation stood as stiffly on their privilege intermediate . 1 • 1 classes, as their companions had ever done. The country knight was always regarded as a member of the noble class, and his position was continually strengthened by intermarriage with the baron- age. The city magnate again formed a link between the , country squire and the tradesman ; and the tradesman and the yeoman were in position and in blood close akin. Even the villein might, by learning a craft, set his foot on the ladder of promotion. But the most certain way to rise was furnished Education by education. Over against the many grievances which modern means for thought has alleged against the unlearned ages which passed before the invention of printing, it ought to be set to the credit of medieval society that clerkship was never despised or made unnecessarily difficult of acquisition. The sneer of Walter Map, who declared that in his days the villeins were attempting to educate their ignoble and degenerate offspring in the liberal arts, proves that even in the twelfth century the way was open. Kichard II rejected the proposition that the villeins should be Education forbidden to send their children to the schools to learn ' clergie'; stricted by and even at a time when the supply of labour ran so low that no man who was not worth twenty shillings a year in land or rent was allowed to apprentice his child to a craft, a full and liberal exception was made in favour of learning ; ' every man or woman' — the words occur in the petition and statute of artificers passed ia 1406, — 'of what state or condition that he be, shall be free to set their son or daughter to take learning at any school that pleaseth them within the realm ^' What, it may be asked, was the supply that answered to a demand so large as this ? It would be very unfair to underrate the debt which England owes to the statesmen who, after the dissolution of monasteries, ob- tained in the foundation of grammar schools a permanent, free, and to some extent independent, source of liberal education for the people, or to object to the claim made by that liberal educa- tion to have been higher in character and value than anything ^ Eot. Pari. iii. 602 ; Statutes, ii. 158. 6o8 Constitutional History, [chap. Education that had preceded it. Yet it must be remembered that the want furnished by ... the monastic which it Supplied was one which had been to a great extent and other . . . schools. created by the destruction of the religious houses and other foundations in which the middle ages had cultivated a modicum of useful learning. In a former chapter attention has been called to the fact that absolutely unlettered ignorance ought not to be alleged against the middle and lower classes of these ages ; that in every village reading and writing must have been not unknown accomplishments, even if books and paper were so scarce as to confine these accomplishments practically to the mere uses of business. Schools were by no means uncommon things ; there were schools in all cathedrals ; monasteries and colleges were everywhere, and wherever there was a monastery or a college there was a school. Towards the close of the middle ages, notwithstanding many causes for depression, tjiere Attempts to was much vitality in the schools. "William of Wykeham at depre^ssionof Winchester and Henry YI at Eton set conspicuous examples education. reform and improvement; the Lollards taught their doctrines in schools ; the schools of the cathedrals continued to flourish. The depression of education was recognised but not acquiesced in. In 1447 four parish priests of London, in a petition to parliament, begged the commons to consider the great number of grammar schools ' that sometime were in diverse parts of the realm beside those that were in London, and how few there . be in these days ; ' there were many learners, they continued, but few teachers ; masters rich in money, scholars poor in learning ; they asked leave to appoint schoolmasters in their parishes, to be removed at their discretion ; and Henry VI granted the petition, subjecting that discretion to the advice of the ordinary*. Learning had languished, as may be inferred from the fact that the decline of the universities had only been arrested by the rapid endowment of the new colleges, and that the restriction of the church patronage of the crown to university men had been offered as an inducement to draw men to Oxford and Cambridge. But the great men of the land, ministers and prelates, were 1 Eot. Pari. V. 137. XXI.] Facilities of Education. 609 devoting themselves and their goods liberally to prevent further First effects decline, and their efforts were not unappreciated in the class vention of they strove to benefit. In this, as in some other matters, it is probable that the invention of printing at first acted somewhat abruptly, and by the very suddenness of change stayed rather than stimulated exertion. Just as men ceased for the moment to write books because the press could multiply the old ones to a bewildering extent, the flood of printing threatened to carry away all the profits of teaching and most of the advantages which superior clerkship had included. It is true the paralysis of literary energy in both cases was short, but it had in both cases the result of giving to the revival that followed it the look of a new beginning. The new learning differed from the old in many important points, but its novelty was mainly apparent in the fact that it sprang to life after the blow under which the old learning had succumbed. So it was with education generally : Character the new schools for which Colet and Ascham and their successors educational laboured, and the new schools that Edward VI, Mary, and Elizabeth founded out of the estates of the chantries, were chiefly new in the fact that they replaced a machinery which for the time had lost all energy and power. It is not improbable that the fifteenth century, although its records contain more distinct references to educational activity than those of the fourteenth, had experienced some decline in this point, a decline sufficiently marked to call for an effort to remedy it. But Existence however this may have been, whether the foundation of Win- schools. Chester and Eton, and the country schools that followed in their wake, was the last spark of an expiring flame, or the first flicker of the newly lighted lamp, the middle ages did not pass away in total darkness in the matter of education ; and it was not in mockery that the parliament of Henry IV left every man, free or villein, to send his sons and daughters to school wherever he could find one. For anything like higher education the Universities offered abundant facilities and fairly liberal induce- ments to scholars; every parish priest was bound to instruct his parishioners in a way that would stimulate the desire to learn wherever such a desire existed. Lollardism would have been, VOL. III. R r 6 10 Constitutional History. [chap- if not innocuous, still incapable of an}i;liing like secret propagand- ism, if the faculty of reading had not been widely diffused. But it is impossible now to discuss at any length a subject, the im- portance of which is at least equalled by its difficulty. strength 820. Great facilities for rising from class to class in the of class . , 1 n . . jealousies, social order are not at all inconsistent with very strong class jealousies and antipathies and broad lines of demarcation. So, although we may readily grant that it was not impossible or even rare for the son of a yeoman to reach the highest honours in the church, or for the son of a merchant to reach the highest grade of nobility, it would be wrong to shut our eyes to the estranging and dividing influences by which Clei^and interest was set against interest, estate against estate. The relation of the clergy to the laity was, as to some degree it always must be, an obstacle to any perfect identity of class interests. The legal and social immunities which belonged to the former, were begrudged and watched jealously by the Landowners latter. Between the landowning: and landless classes there and landless. . , i i i were similar grounds of division ; for, although the actual value of land, as property, was neither so great nor so highly appreciated as in later times, the privileges which the pos- session of it included were even greater, politically and socially, than they are at the present day. A lower rate of taxation, the possession of the county franchise and of a considerable share of the borough franchise also, the legal protection with which the ownership) of land had been guarded from the earliest times, and the strictness of the land-law framed upon feudal ideas, were benefits which were not shared by even the wealthiest of the mercantile classes. The landowner had a stake in the country, a material security for his good behaviour \ if he offended against the law or the government, he might forfeit his land ; but the land was not lost sight of, and the moral and social claims of the family which had possessed it were not barred by forfeiture. The restoration of the heirs of the dispossessed was an invariable result or condition of every political pacification ; and very few estates were alienated from the direct line of inheritance by one forfeiture only. With the XXI.] Class Jealousies. 6ji merchant, it was not so ; if he offended, all his material security was at once swallowed up by the forfeiture ; a record might be kept of the profits, but they were not to be recovered ; as he had risen, so he fell, unless he had in good time invested some part of his fortune in land. In the lower classes, again, in the lower • • • cIrsscs the distinctions of interest in land, and varying views as to the employment of it, caused great heart-burnings and social discontents. As the freeholder engrossed the county franchise, the political divisions in the agricultural class scarcely rose to the level of parliament; but out of parliament they were the causes of much discontent, which found vent in the popular risings, and a welcome sympathy in the social doctrines of Lollardy. The burdens of the copyhold and customary tenures, the heavy heriots and fines, the unpaid services of villenage, the difficulty of obtaining small holdings on fair terms, com- bined with the equally important questions between tillage and pasturage to divide the agricultural class against itself. The Tillage and price of wool enhanced the value of pasturage, the increased value of pasturage withdrew field after field from tillage ; the decline of tillage, the depression of the markets, and the monopoly of the wool trade by the staple towns, reduced those country towns which had not encouraged manufacture, to such poverty that they were unable to pay their contingent to the revenue, and the regular sum of tenths and fifteenths was reduced by more than a fifth in consequence. The same causes which in the sixteenth century made the enclosure of the commons a most important popular grievance, had begun to set class against class as early as the fourteenth century, although the thinning of the population by the Plague acted to some extent as a corrective. To these deeply seated sources of division, the invidious laws on apparel and sumptuary legislation were small matters of aggravation, but they served to bring more prominently before mens' eyes the outward marks of inequality. That these causes were at work during the fifteenth century, as well as those which preceded and followed it, there is no doubt. The great dynastic quarrel gave more prominence to K r 2 6l2 Constitutional Kidory. [chap. Connexion local and personal faction than to class distinctions and sepa- class . f , grievances rations: the great crisis of the constitutional history turned, with the . •i /.'i dynastic or seemed to turn, on points rather of dynastic than of social importance. But whilst town and country, clergy, nobles, and commons, were alike divided, house against house, family against family, bishop against bishop, man against wife, we can see in the attempts made by the two rival factions to turn the social divisions to account, that the social divisions were scarcely less deep and wide than they had been in the days of Wat Tyler and Jack Straw. The anti-Lancastrian party in the reign of Henry IV courted the Lollards in and out of parliament; the Lancastrian House fortified itself in the support of the clergy, until the duke of York, by appointing Bourchier to the primacy, divided the camp of the bishops. The Mortimer interest was put forward as an excuse for popular disturbances as well as for court intrigues and political conspiracies, in so much that, even when the duke of York had united in his own person the claims of indefeasible hereditary right and popular championship, the name of Mortimer continued to be the watchword of disaffection. It is true that, like almost every- thing else but dynastic hatred, these causes worked with diminished strength in the general attenuation and exhaustion of national vitality. But they certainly subsisted, and exercised a secondary influence, widening, perhaps, and deepening unseen, in preparation for the ages in which they would work with greater intensity and with fewer extrinsic incum- brances. A nation that seems to be perishing takes less heed of the minor causes of ruin, although they may be still acutely felt by individuals and classes of sufferers. Close of the 821. And here our survey, too general and too discursive middle ages. pgj.jjapg been wisely attempted, must draw to its close. The historian turns his back on the middle ages with a brighter hope for the future, but not without regrets for what he is leaving. He recognises the law of the progress of this world, in which the evil and debased elements are so closely inter- mingled with the noble and the beautiful, that, in the assured march of good, much that is noble and beautiful must needs XXI.] National Character. 5x3 share the fate of the evil and debased. If it were not for the Marks of a conviction that, however prolific and progressive the evil may Snsftkm. have been, the power of good is more jDrogressive and more pro- lific, the chronicler of a system that seems to be vanishing might lay down his pen with a heavy heart. The most enthusiastic admirer of medieval life must grant that all that was good and great in it was languishing even to death ; and the firmest believer in progress must admit that as yet there were few signs of returning health. The sun of the Plantagenets went down in clouds and thick darkness ; the coming of the Tudors gave as yet no promise of light; it was 'as the morning spread upon the mountains,' darkest before the dawn. The natural inquiry, how the fifteenth century affected the Little light development of national character, deserves an attempt at an character, answer ; but it can be little more than an attempt ; for very little light is thrown upon it by the life and genius of great men. With the exception of Henry V, English history can show throughout the age no man who even aspires to greatness ; and the greatness of Henry V is not of a sort that is peculiar to the age or distinc- tive of a stage of national life. His personal idiosyncrasy was that of a hero in no heroic age. Of the best of the minor N9 great workers none rises beyond mediocrity of character or achieve- ment. Bedford was a wise and noble statesman, but his whole career was a hopeless failure. Gloucester's character had no element of greatness at all. Beaufort, by his long life, high rank, wealth, experience and ability, held a position almost unrivalled in Europe, but he was neither successful nor dis- interested ; fair and honest and enlightened as his policy may have been, neither at the time nor ever since has the world looked upon him as a benefactor ; he appears in history as a lesser "Wolsey, — a hard sentence perhaps, but one which is justified by the general condition of the world in which the two cardinals had to play their part ; Beaufort was the great minister of an expiring system, Wolsey of an age of grand transitions. Among the other clerical administrators of the age, Kemp and Waynflete were faithful, honest, enlightened, but quite unequal to the difii- culties of their position ; and besides them there are absolutcy 6i4 Constitutional History. [chap. Warwick none that come within even the second class of greatness as the type of . . ° baronial useful men. It is the same with the barons : such greatness ^rcstiic s s as there is amongst them, — and the greatness of "Warwick is the climax and type of it, — is more conspicuous in evil than in good. In the classes beneath the baronage, as we have them pourtrayed in the Paston Letters, we see more of violence, chicanery and greed, than of anything else. Faithful attachment to the faction which from hereditary or personal liking they have determined to maintain, is the one redeeming feature, and it is one which by itself may produce as much evil as good ; that nation is in an evil plight in which the sole redeeming quality is one that General owes its existence to a deadly disease. All else is languishing : literature literature has reached the lowest depths of dulness ; religion, and religion. .^^ chief results are traceable, has sunk, on the one hand into a dogma fenced about with walls which its defenders cannot pass either inward or outward, on the other hand into a mere war cry of the cause of destruction. Between the two lies a narrow borderland of pious and cultivated mysticism, far too fastidious to do much for the world around. Yet here, as everywhere else, the dawn is approaching. Here as everywhere else, the evil is destroying itself, and the remaining good, lying deep down and having yet to wait long before it reaches the surface, is already striving toward the sunlight that is to come. The good is to come out of the evil ; the evil is to compel its own remedy; the good does not spring from it, but is drawn up through it. In the history of nations, as of men, every good and perfect gift is from above ; the new life strikes down in the old root ; there is no generation from corruption. Charm of 822. So we turn our back on the age of chivaliy, of ideal history. heroism, of picturesque castles and glorious churches and pageants, camps, and tournaments, lovely charity and gallant self-sacrifice, with their dark shadows of dynastic faction, bloody conquest, grievous misgovernance, local tyrannies, plagues and famines unhelped and unaverted, hollowness of pomp, disease and dissolution. The charm which the relics of medieval art have woven around the later middle ages must be resolutely, ruth- lessly, broken. The attenuated life of the later middle ages is in XXI.] Age of Transition, 615 thorough discrepancy with the grand conceptions of the earlier Features of times. The thread of national life is not to be broken, but the transition, earlier strands are to be sought out and bound together and strengthened with threefold union for the new work. But it will be a work of time ; the forces newly liberated by the shock of the Reformation will not at once cast off the foulness of the strata through which they have passed before they reached the higher air : much will be destroyed that might well have been con- served, and some new growths will be encouraged that ought to have been checked. In the new world, as in the old, the tares are mingled with the wheat. In the destruction and in the growth alike will be seen the great features of difference between the old and the new. The printing press is an apt emblem or embodiment of the Illustration change. Hitherto men have spent their labour on a few books, printing written by the few for the few, with elaborately chosen material, ^^^^^* in consummately beautiful penmanship, painted and emblazoned as if each one were a distinct labour of love, each manuscript unique, precious, the result of most careful individual training, and destined for the complete enjoyment of a reader educated up to the point at which he can appreciate its beauty. Henceforth books are to be common things. For a time the sanctity of the older forms will hang about the printing press ; the magnificent volumes of Fust and Colard Mansion will still recal the beauty of the manuscript, and art will lavish its treasures on the em- bellishment of the libraries of the great. Before long printing will be cheap, and the unique or special beauty of the early presses will have departed ; but light will have come into every house, and that which was the luxury of the few will have be- come the indispensable requisite of every family. With the multiplication of books comes the rapid exten- liiustraticn 1 1 • p 1 • . A . . • 1 1 litera- sion and awakenmg 01 mental activity. As it is with the tare. form so with the matter. The men of the decadence, not less than the men of the renaissance, were giants of learn- ing : they read and assimilated the contents of every known book ; down to the very close of the era the able theologian would press into the service of his commentary or his summa 6i6 Constitutional History. [chap. Transition in every preceding commentary or summa with gigantic labour, and with an acuteness which, notwithstanding that it was ill- trained and misdirected, is in the eyes of the desultory reader of modern times little less than miraculous : the books were rare, but the accomplished scholar had worked through them all. Outside his little world all was comparatively dark. Here too the change was coming. Scholarship was to take a new form; intensity of critical power, devoted to that which was worth criticising, was to be substituted as the characteristic of a learned man for the indiscriminating voracity of the earlier learning. The multiplication of books would make such scho- larship as that of Vincent of Beauvais, or Thomas Aquinas, or Gerson, or Torquemada, an impossibility. Still there would be giants like Scaliger and Casaubon, men who culled the fair flower of all learning, critical as the new scholars, comprehen- sive as the old; reserved for the patronage of sovereigns and nations, and perishing when they were neglected like the beau- tiful books of the early printers. But they are a minor feature Diffusion in the new picture. The real change is that by which every of light. comes to be a reader and a thinker; the Bible comes to every family, and each man is priest in his own household. The light is not so brilliant, but it is everywhere, and it shines more and more unto the perfect day. It is a false sentiment that leads men in their admiration of the unquestionable glory of the old culture to undervalue the abundant wealth and growing glory of the new. Illustration The parallel holds good in other matters besides books, tectuieand He is a rash man who would with one word of apology com- inventions! pare the noble architecture of the middle ages with the mean and commonplace type of building into which by a steady decline our churches, palaces, and streets had sunk at the beginning of the present century. Here too the splendour of the few has been exchanged for the comfort of the many ; and, although perhaps in no description of culture has the break between the old and the new been more conspicuous than in this, it may be said that the many are now far more capable of appreciating the beauty which they will try to rival, than ever XXI.] Lessons of History. 617 the few were to compreheDd the value of that which they were Emblems of new ^i*owtli» losing. But it is needless to multiply illustrations of a truth which is exemplified by every new invention : the steam plough and the sewing machine are less picturesque, and call for a less educated eye than that of the ploughman and the sempstress, but they produce more work with less waste of energy ; they give more leisure and greater comfort ; they call out, in the production and improvement of their mechanism, a higher and more widely-spread culture. And all these things are growing instead of decaying. 823. To conclude with a few of the commonplaces which Concluding 111 1 reflexions on must be familiar to all who have approached the study ofthe study of history with a real desire to understand it, but which are apt to strike the writer more forcibly at the end than the beginning of his work. However much we may be inclined to set aside the utilitarian plan of studying our subject, it cannot be denied that we must read the origin and development of our Con- stitutional History chiefly with the hope of educating ourselves into the true reading of its later fortunes, and so train ourselves for a judicial examination of its evidences, a fair and equitable estimate of the rights and wrongs of policy, dynasty, and party. Whether we intend to take the position of a judge or the posi- A training tion of an advocate, it is most necessary that both the critical S^conlirover^ insight should be cultivated, and the true circumstances of the ^^^^ ^^^^^y- questions that arise at later stages should be adequately ex- plored. The man who would rightly learn the lesson that the seventeenth century has to teach, must not only know what Charles thought of Cromwell and what Cromwell thought of Charles, but must try to understand the real questions at issue, not by reference to an ideal standard only, but by tracing the historical growth of the circumstances in which those questions arose : he must try to look at them as it might be supposed that the great actors would have looked at them, if Cromwell had suc- ceeded to the burden which Charles inherited, or if Charles had taken up the part of the hero of reform. In such an attitude it is quite unnecessary to exclude party feeling or personal sympathy. Whichever way the sentiment may incline, the truth, 6i8 Constitutional History. [chap. Respect for the whole truth and nothing but the truth, is what history sincerity on p ^ ■ i i • i both sides, would extract from her witnesses : the truth which leaves no pitfalls for unwary advocates, and which is in the end the fairest measure of equity to all. In the reading of that history we have to deal with high-minded men, with zealous enthusiastic parties, of whom it cannot be fairly said that one was less sincere in his belief in his own cause than was the other. They called each other hypocrites and deceivers, for each held his own views so strongly that he could not conceive of the other as sincere. But to us they are both of them true and sincere, whichever way our supplied by ^^^P^^^^^^^ sentiments incline. We bring to the reading of study of their acts a judgment which has been trained through the Kefor- earlier . , . . . history. mation history to see rights and wrongs on both sides ; sometimes see the balance of wrong on that side which we believe, which we know, to be the right. We come to the Reformation history from the reading of the gloomy period to which the present volume has been devoted ; a worn-out helpless age, that calls for pity without sympathy, and yet balances weariness with something like regrets. Modern thought is a little prone to eclecticism in history : it can sympathise with puritanism as an effort after freedom, and put out of sight the fact that puritanism was itself a grinding social tyranny, that wrought out its ends by un- scrupulous detraction and by the profane handling of things which should have been sacred even to the fanatic if he really believed Two parties in the cause for which he raged. There is little real sympathy in the read- ... , . , * ^ , J i J ing of later With the great object, the peculiar creed that was oppressed; as a struggle for liberty the Quarrel of Puritanism takes its stand besides the Quarrel on the Investitures. Yet like every other struggle for liberty, it ended in being a struggle for supremacy. On the other hand, the system of Laud and of Charles seems to many minds to contain so much that is good and sacred, that' the means by which it was maintained fall into the background. We would not judge between the two theories which have been nursed by the prejudices of ten generations. To one side liberty, to the other law, will continue to outweigh all other considerations of disputed and detailed right or wrong : it is enough for each to look at them as the actors themselves looked XXI.] Conclusion. 619 at them, or as men look at party questions of their own day, when much of private conviction and personal feeling must be sacrificed to save those broader principles for which only great parties can be made to strive. The historian looks with actual pain upon many of these things. Political Especially in quarrels where religion is concerned, the hollowness of the pretension to political honesty becomes a stumblingblock in the way of fair judgment. We know that no other causes have ever created so great and bitter struggles, have brought into the field, whether of war or controversy, greater and more united armies. Yet no truth is more certain than this, that the real motives of religious action do not work on men in masses ; and that the enthusiasm which creates Crusaders, Inquisitors, Hussites, Puritans, is not the result of conviction, but of passion provoked by oppression or resistance, maintained by selfwill, or stimulated by the mere desire of victory. And this is a lesson for all time, and for practical life as well as historical judgment. And on the other hand it is impossible to regard this as an adequate solution of the problem : there must be something, even if it be not religion or liberty, for which men will make so great sacrifices. The best aspect of an age of controversy must be sought in The lives of the lives of the best men, whose honesty carries conviction to mSs^Se"^^^ the understanding, whilst their zeal kindles the zeal, of theieslono? many. A study of the lives of such men will lead to the con- elusion that, in spite of internecine hostility in act, the real and true leaders had far more in common than they knew of ; they struggled, in the dark or in the twilight, against the evil which was there, and which they hated with equal sincerity; they fought for the good which was there, and which really was strengthened by the issue of the strife. Their blows fell at random : men perished in arms against one another whose hearts were set on the same end and aim ; and that good end and aim which neither of them had seen clearly was the in- heritance they left to their children, made possible, and realised not so much by the victory of one as by the truth and self- sacrifice of both. 620 Constitutional History, At the close of so long a book, the author may be suffered to moralise. His end will have been gained if he has succeeded in helping to train the judgment of his readers to discern the balance of truth and reality, and, whether they go on to further reading with the aspirations of the advocate or the calmness of the critic, to rest content with nothing less than the attainable maximum of truth, to base their arguments on nothing less sacred than that highest justice which is found in the deepest sympathy with erring and straying men. THE END. INDEX. Abbots, in witenagemot, i. 125. — in parliament, i. 569 ; iii. 403, 443- 445- . — appointment of, iii. 317. — homage of, ii. 201, 202. Accounts, audit of, ii. 560, 564-568 ; iii. 54, 119, 267. Accursi, Francesco, ii. 107, 262, 264. Adalhard, his account of the Frank assemblies, i. 122, 123. Adaling, i. 53. Admiral, title of, ii. 288 ; appoint- ment of, ii. 288, 289. Admiralty, origin of, ii. 289. Adolf, of Nassau, king of the Romans, ii. 365, 366. Adrian IV, pope, i. 558 ; iii. 292. Aids, i. 382-384 ; regulated by Magna Carta, i. 533, 534; by the Confirmatio Cartarum, ii. 142 sq. ; continuance of, during the fourteenth century, ii. 521, 522. Alemanni, i. 37, 59, 63, 127, Alexander II, pope, i. 282, 287. Alexander III, pope, iii. 292, 294, 304, 340- Alexander IV, his negotiations with Henry III, ii. 70, 84. Alfred, his translation of Bede, i. 70 sq. ; the traditional creator of the hundreds, i. 99 ; his legislation, i. 127, 195 ; his restoration of learn- ing, i. 238 ; his military system, i. 14, 191, 193 ; his peace with Guthrum, i. 197, 199; his pro- vincial jurisdiction, i. 391, 441 ; reputed inventor of trial by jury, i. 612 ; proposal to canonise, iii. 129. Ahenation of land, restrained, ii. 179 ; by fine, ii. 370 ; restrictions on, evaded, iii. 552. Alien priories, iii. 47, 82. Aliens, legislation against, ii. 78, 79 ; iii. 43- Aliens, taxation of, iii. 100, 124, 128, 143, 163, 219. Alod, i. 53, 55, 74, 75, 76, 130, 189. Amercements, regulated, i. 535 ; ii. 109 ; harshly inflicted, ii. 74- Amiens, Mise of, ii. 87, 88. Angel-cynn, i. 166. Angli, in Germany, i. 39, 40 ; their migration, i. 65. Angliae, rex, title assumed, i. 553, 563. Anglii et Werini, i. 47. Antrustion, i. 124, 154, 255. Appeals to Rome, iii. 346-351. Appropiiatiou of grants of money, ii. 565 ; iii. 264, 265. Archbishops, secular power of, i. 221 ; right of coining, ih. Archdeacon, office of, i. 233, 234, 244. Armies, Anglo-Saxon, i. 189-194, 431-434, 587-592; of Henry II and his sons, i. 589-592 ; of Ed- ward I, ii. 276 sq.; of Edward IV and Richard III, iii. 278-280. Arms, assize of, i. 488, 573, 585 ; its importance, i. 591, 592; ii. 210, 219. Array, commissions of, ii. 284, 285, 370, 396, 401, 539-543; "i- 262, 278-280. Arrest, freedom from, iii. 489-498. Arundel, William of Albini, earl of, i. 478, 569 ; of the county of Sussex, i. 569. — William, earl of, ii. 15. — Edmund Fitzalan, earl of, ii. 327 ; refuses to follow Edward II to war, ii. 337; supports him in 1326, ii. 359 ; beheaded, ii. 360. — Richard Fitzalan, earl of, ii. 432, 442, 448 ; enmity of, to Burley, ii. 464 ; success at sea, ii. 465 ; joins the baronial opposition, ii. 469 ; a commissioner in 1 386, ii. 476 ; attempt to arrest, ii. 478 ; one of the appellants, ii. 479 ; of the coun- 622 Index. cil, ii, 486 ; his quarrel with John of Gaunt, ii. 489 ; with the king, ii. 490 ; withdraws from court, ii. 493 ; arrested, ii. 494 ; tried and beheaded, ii. 495. Arundel, Thomas, earl of Arundel and Surrey, iii. 16, 50; commands in France, iii. 79 ; is lord treasurer, iii. 76. — Thomas, archbishop of Canterbury, bishop of Ely, ii. 470 ; remonstrates with Richard, ii. 473 ; chancellor, ii. 474 ; archbishop of York, ii. 481 ; archbishop of Canterbury, ii, 485 ; impeached, ii. 495; translated to S. Andrew's, ii. 497 ; returns, ii. 501, 502 ; places Henry IV on the throne, ii. 506 ; preaches on the occasion, iii. 12, 14; discusses Kichard's fate, iii. 20; has damages from Walden, iii. 23 ; restored by a papal act, iii. 25 ; legislates against the Lollards, iii. 31, 32 ; repels the attacks of the knights, iii. 42 ; urges the king against the Lollards, iii. 46 ; purges himself, iii. 48 ; intercedes for Scrope, iii. 50, 51 ; in parliament of 1406, iii. 53 ; his hostility to the Beauforts, iii. 59 ; moves against the Lollards, in convocation, iii. 62; forbids un- authorised translations of the Bible, 62, 63 ; chancellor again, iii. 69 ; displaced, iii. 76 ; renews the per- secution of the Lollards, iii. 78 sq. ; dies, iii. 80 ; his constitutional speeches, iii. 238, 239. Ascough, William, bishop of Salis- bury, murdered, iii. 152. Assize, the great, i. 511, 599, 615, 616. — of arms, i. 488, 573, 585, 591, 592 ; ii. 280. — of Clarendon, i. 103, 467-469, 484, 573' 574, 599' 615. 618; ii. 107. — of Northampton, i. 483, 573, 615, 618 ; ii. 107. — of Woodstock, i. 489, 511, 573. — of measures, i. 509, 573. — form of legislation by, i. 573. — procedure under, i. 616, 617. — justices of, ii. 271; claim of the commons to regulate, ii. 608 ; to take cognisance of elections, iii. 257. 258, 423- Athelstan, king, i, 87, 115, 125, 173, 205, 239 ; rex Anglorum, i. 173. Attainder, bills of, iii. 178, 196, 266, 463. Audley, Hugh of, husband of one of the Gloucester heiresses, ii. 340, 346, 348 ; prisoner, ii. 350. — James Touchet, lord, killed at Blore Heath, iii. 178. — John Touchet, lord, fails to take Calais, iii. 181 ; changes sides, iii. 187. Aum^le, honour of, iii. 440 ; Odo of, i. 249, 294. — Stephen of, competitor of William Rufus, i. 294. — William of, earl, i. 362 ; opposes Henry II, i. 452. — William of Mandeville, earl, i. 497- , — William de Forz, earl, i. 541 ; ii. 29, 32, 34. — Edward, duke of See York. Austrasian, influences in the Frank empire, i. 9. Bacheleria, ii. 81, 186. Badlesmere, Bartholomew, lord, joins with Pembroke to gain influence over Edward II, ii. 342, 343 ; hanged, ii. 350. Bagot, Sir William, ii. 494 ; iii. 19. Banneret, dignity of, iii. 437. Bannockburn, battle of, ii. 334, 335. Bankers, foreign, loans by, ii. 397, Bardi and Peruzzi, failure of, ii. 397, 532. Bardolf, Hugh, justice, i. 500, 503, — Thomas, lord, rebels in 1405, iii. 49 ; flies to Wales, iii. 57 ; dies, iii. 62. Barons, institution of, i. 365, 366. — major and minor, i. 564-567 ; ii. 182; final definition of the number, ii. 201 ; qualification for summons, ii. 202 ; summoned in smaller numbers to parliament than to the host, ii. 203, 204; forms of summons, ii. 249, 250. — of the exchequer, i. 379. — of 1 2 15, divisions among, i. 539, 540. Index. 623 Barons, northern, their action in re- spect to the charter, i. 525, 540; ii. 88. Baronage, growth of, as a separate estate, ii. 176-184, 201-204; im- portance of, iii. 520 sq. Barony, legal definitions of, ii. 181 ; by writ, ii. 204 ; by patent, ii. 615 ; iii. 437-443- Battle, trial by, i. 276, 395, 616. Bavaria, i. 5, 63, 128, 152, 255. Beauchamp, John, of Holt, created a baron, ii. 481; iii. 437. — of Bletso, ii. 432. — William, ii. 541. Beauforts, legitimised, ii. 490, 491 ; iii. 58 ; with a reservation, iii. 59, 60 ; adhere to the prince of Wales, iii. 60, 66, 68 ; to Bedford against Gloucester, iii. 94. Beaufort, John, earl of Somerset, ii. 494 ; marquess of Dorset, ii. 496, 498 ; degraded, iii. 21 ; declared loyal, iii. 31 ; refuses to be restored as marquess, iii. 38 ; at the head of the fleet, iii. 45 ; dies in 1410, iii. 66. — Henry, bishop of Lincoln, chan- cellor, iii. 38 ; made bishop of Win- chester, iii. 47, 58 ; opposes the marriage of Clarence, iii. 66 ; chan- cellor, iii. 76, 84 ; his loans, iii. 88, ' 91 ; resigns the great seal, iii. 88 ; is chancellor again in 1423, iii. 99 ; his speech on the elephant, iii. 100; his first quarrel with Gloucester, iii. 10 1 ; garrisons the Tower, ih. ; sends for Bedford, ih. ; defends himself against Gloucester's charges, iii. 103 ; resigns the seal, iii. 104; goes abroad, iii. 105; made a cardinal, iii. 108 ; heads the Hussite crusade, iii. 109 ; at- tempt to exclude him from council, iii. no; goes to France, iii. 112; attempt to remove him, iii. 113; his jewels seized, ih. ; declared loyal, iii. 114; leads the council after Bedford's death, iii. 122 ; at- tacked by Gloucester in 1440, iii. 125 ; is the king's chief adviser, iii. 131 ; death, iii. 138 ; his political character, iii. 1 39 ; the king refuses his treasure, iii. 139 ; his constitu- tional speeches, iii. 239. — Thomas, iii. 58; condemns Scrope and Mowbray, iii. 50, 51; chan- cellor, iii. 63-68 ; again, iii. 76 ; earl of Dorset, iii. 8 2 ; duke of Exeter, iii. 88 ; charged with the care of Henry VI, iii. 92, 98; dies, iii. 104. Beaufort, John, earl of Somerset, iii. 123; commands in France, iii. 125; his expedition, iii. 132 ; duke of Somerset, iii. 132; dies, ib. — Margaret, heiress of Somerset, iii. 132; plan for marrying her to John de la Pole, iii. 135, 147 ; attainted, iii, 229. — Edmund, count of Mortain, his early rivalry with the duke of York, iii. 123, 132; marquess of Dorset, iii. 1 36 ; at duke Humfrey's arrest, iii. 136; lieutenant in France, iii. 140; made duke of Somerset, iii. 141 ; loses Normandy, iii. 142, 145; his antagonism to the duke of York, iii. 154; returns from Normandy, and is made con- stable, iii. 156 ; petition for his dismissal from court, iii. 158 ; at- tacked by the duke of York in 1452, iii. 160; charges against, iii. 161 ; repeated by the duke of Nor- folk, iii. 164, 165 ; arrested, iii. 165; released, iii. 170; killed at St. Alban's, iii. 171. — Henry, duke of Somerset, iii. 171; at war with Warwick, iii. 175, 1 76 ; fails to take Calais, iii. 181 ; is absent from parliament, iii. 187; wins battles at Worksop and Wake- field, iii. 188 ; escapes after Tow- ton, iii. 190; attainted, iii. 196; pardoned by Edward IV, iii. 198 ; rejoins Margaret, iii. 199 ; be- headed, iii. 199. — Edmund, duke of Somerset, bro- ther, iii. 208 ; put to death at Tewkesbury, iii. 210. Beaumont, Henry de, ii. 330, 338, 353, 360. — John, viscount of, arrests duke Humfrey, iii. 136; killed, iii. 184. — William, viscount of, attainted, iii. 196. — earls of Leicester, see Leicester ; their origin, i. 249. Bede, his account of the Old Saxons, i.41 ; importance of his terminology, Index. i- 7°. 71 > 155; mentions the An- gulus, i. 65 ; his reference to folkland, i. 154; his letter to Eg- bert, i, 229, 230; his account of the Northumbrian witenagemot, i. 133- Bedford, John of Lancaster, duke of, iii. 58 ; defeats the rebellion of 1405, iii. 50 ; constable, iii. 41, 59 ; made duke, iii, 82 ; lieutenant of the reahn, iii. 85, 86, 89, 90, 91 ; left guardian of England and France on Henry's death, iii. 92 ; his character, iii. 94 ; con- nexion with the Beauforts, ih. ; his position as regent, iii. 97 ; thwarted by Gloucester, iii. 98, 99 ; recalled by Beaufort, iii. 101 ; his alliance with Gloucester, iii. 102 ; mediates, iii. 103 ; undertakes to respect the authority of the council, iii. 104, 105 ; returns to France, iii. 106 ; quarrels with Burgundy, iii. 116; returns home to defend himself, iii. 117; proposes to econo- mise, iii. 118; undertakes to be chief counsellor, iii. 119 ; dispute with Gloucester, iii. 120; dies, iii. 121; marriage of his widow, iii. 1 24 ; his treatment of the Maid of Orleans, iii. 112. — earldom of, i. 362, 451. Belesme, Robert of, i. 293, 308, 309, 311, 433. 527- — Yvo of, i. 249. Bench, court of king's, i. 487, 601 ; ii. 266. Benevolences, iii. 213, 217, 274, 276, 277; abolished, iii. 230. Berkhampstead, honour of, i. 402, 464. Beverley, constitution of, i. 41 1 ; iii. 583- Bigod, Hugh, earl of Norfolk, i. 320, 322, 455, 479, 490. — Hugh, earl, one of the executors of the charters, i. 542 ; ii. 29. — Hugh, earl, his son, i. 542 ; ii. 29, — Hugh, justiciar, ii. 77. — Eoger, at the council of Lyons, ii. 64. — Roger, earl of Norfolk, resists Edward I, ii. 132, 135, 140, 146; surrenders his earldoms, ii. 1 54 ; his policy, ii. 298. Bishops, i. 135, 217-246; their posi- tion in the shire-moot, i, 103, 232, 233 ; leaders of hosts, i. 107, 237 ; treatment of, by William I, i. 282, 283 ; removal of sees, i. 287 ; their sees kept vacant by William II, i. 298, 299 ; election of in council, i. 134, 373 ; deposition of, i. 282 ; translation of, iii. 307. — position of, in the estate of clergy, ii. 1 69 ; as barons, ih. ; in parlia- ment, iii. 443. — political attitude of, under Edward I, ii. 299-304. — noble, ii. 402 ; iii. 366, 367. — prisons of, iii. 345, 346. — right of appointment of, iii. 295- 317- — fealty and homage of, i. 357; iii. 294, 296. Bohun, Henry, earl of Hereford, one of the executors of the charter, i. 542 ; ii. 28. — Humfrey, earl of Hereford, takes part in the Provisions of Oxford, ii. 75, 82, 88. — Humfrey, son of the earl, is on the side of the barons, ii. 88. — earl of Hereford, constable, resists Edward I, ii. 132, 135, 140, 146; dies, ii. 148 ; his policy, ii. 298. — earl of Hereford, son-in-law of Edward I, ii. 155 ; an ordainer, ii. 327; pardoned, ii. 334; a council- lor in 1 31 8, ii. 343 ; refuses to obey Edward II, ii. 346, 347; prosecutes the Despensers, ii. 348 ; killed at Boroughbridge, ii. 349. — heiresses, ii. 416. Boniface VIII, pope, ii. 1 30 sq. ; claims Scotland as a fief, ii. 152 ; letter of the English to, ii. 153 ; his episcopal nominations, iii. 307, 308. Boniface IX, pope, ii. 497 ; iii. 25, 315- Bookland, i. 76, 130, 142, 549. Borh, Borhbryce, i. 175. Borhs ealdor, i. 87, 115. Borough, see Town. Boroughbridge, battle of, ii. 349. Bourchier, Robert, chancellor, ii. 387, 388, 391, 394. — Thomas, bishop of Ely, made arch- bishop of Canterbury, iii. 167 ; Index. 625 proceedings against Pecock, iii. 1 76 ; mediates for peace, iii. 177; wel- comes the Yorkist invasion, iii. 182 ; his conduct with respect to the duke's claim, iii. 185 ; recog- nises Edward IV, iii. 189 ; wel- comes him on his return, iii. 211 ; accepts Richard III as king, iii. 226. Bourchier, Henry, viscount, treasurer, iii. 172; dismissed, iii. 176; sum- moned to parliament and made earl of Essex by Edward IV, iii. 194 ; treasurer, iii. 214; dies, iii. 221. Bracton, ii. 107, 268, 270 ; quoted, ii. 10, 12, 13, 180, 237, 294, 301 ; iii. 390, 517. Breaute, Falkes de, ii. 12, 32; his outbreak and fall, ii. 34, 35. Brember, Nicolas, ii. 477, 479, 481 ; iii- 575. Bretwalda, i. 122, 162, 163. Britons, condition of, at the Conquest. i. 59-63 ; religion of, i. 62 ; exter- mination of, i. 61. Buckingham, Humfrey Stafford, duke of, earl of Stafford, iii. 102 ; duke, iii. 136 ; at duke Humfrey's arrest, iii. 136 ; half-brother of archbishop Bourchier, iii. 167; is surety for Somerset, iii. 1 70 ; his son killed at S. Alban's, iii. 171 ; supports Henry VI, iii. 175; killed at Northampton, iii. 183, 184. — Henry Stafford, duke of, grandson, iii. 202 ; steward at Clarence's trial, iii. 215 ; in the council, iii. 220 ; conspires with Gloucester, iii. 222 ; declares his claim to the throne, iii. 223; rebels, iii. 226; beheaded, iii. 227. Bulls, papal, Laudabiliter, i. 558 ; super muros Jerusalem, ii. 38 ; clericis laicos, ii. 130 sg., 145. — restraint on, in England, iii. 322. Burgage, tenure by, i. 409 ; iii. 420. Burghersh, Henry, bishop of Lincoln, his condiict to Edward II, ii. 355, 367 ; treasurer and chancellor, ii. 371, 384 ; heads the court party, ii. 384 ; dies, ii. 387. Burgorum, auxilium, i. 382. Burhs, origin of, i. 92-95. See Town. Burh-geat setl, i. 106. Burley, Sir Simon, ii. 464, 465, 477 ; VOL. III. S chancellor, iii. 170-176; is im- peached and executed, ii. 481, 495. Bury St. Edmund's, parliament of 1296 at, ii. 130; of 1447, iii. 135, 387. Butler, James, earl of Wiltshire, iii. 170 ; treasurer, \h. ; again, iii. 177 ; executed, iii. 188; attainted, iii. 196. Cade, Jack, rebellion of, iii. 151, 152, 163, 179. Caesar, Julius, his account of the Germans, i. 12-16, 20. Cambridge, guild at, i. 413, 414; county court of, i. 277. — university of, represented in par- liament, ii. 150. — parliament at, ii. 482 ; iii, 387, 388. — riots at, ii, 450. — Richard, earl of, his plot and fate, , iii. 85, 86, 154. Camville, Gerard, i. 498, 499, 502. Canon law, growth of, i. 284 ; ii. 170, 171 ; its authority in England, iii. 321, 322. Canterbury, primacy of, i. 217 sq^. 235, 236; iii. 294; alliance of the Werst Saxon kings with, i. 236. — guild of, i. 415. — archbishop of, first adviser of the king, i. 359 ; receives the first summons to council, i. 567. — archbishops of — Lanfranc, i. 281-296. Anselm, i. 306, 311, 316; iii, 295- Ralph, iii. 302. William of Corbeuil, i. 319 ; iii. 299. Theobald, i. 325, 375, 454, 460 ; iii. 303. Thomas Becket, i. 458, 462- 475 ; iii- 294» 303- Richard of Dover, i. 482. Baldwin, i. 495, 498, 549. Hubert Walter, i. 502-519. Stephen Langton, i. 520-544 ; ii. 6-42, 196, 299 ; iii. 305. Richard, ii. 42 ; iii. 305. Edmund, ii. 49, 51, 57, 299 ; iii. 305- Boniface, ii. 58, 65, 72, 197, 418; iii, 305, 341. S Index. Canterbur}'-, abps. of {continued) : — Robert Kilwardby, ii. 105, 1 11, 197, 418 ; iii. 305. John Peckham. ii. 1 12-114, I97» 418 ; in. 305, 306. Robert Winchelsey, ii. 126, 129- 158, 316-335, 418 ; iii. 306. Walter Reynolds, ii. 335, 419 ; iii. 311. Simon Mepeham, ii. 371, 402, 419 ; iii. 313. John Stratford, ii. 383-394, 403, 419; iii. 313. Thomas Bradwardine, ii. 402. Simon Islip, ii. 404, 413. Simon Langham, ii. 451. Simon Sudbury, ii. 426, 452. William Courtenay, ii. 428, 429, 44 2. See Courtenay. Thomas Arundel, ii. 485 ; iii. 315. See Arundel. Roger Walden, ii. 485, 497 ; iii. 23, 315- Henry Chichele, iii. 83. See Chichele. John Stafford, iii. 114, 132, 144. John Kemp, iii. 162-166, See Kemp. Thomas Bourchier, iii. 167-226. See Bourchier. Cantilupe, Walter, bishop of Wor- cester, ii. 62, 302 ; iii. 366. — Thomas, bishop of Hereford, ii. 91, 294, 302 ; iii. 366. Canute, i. 87, 121, 157, 169, 177, 178, 200, 201, 202, 268, 507; his huscarls, i. 150; his division of England, i. 152, 160. Capitularies, i. 10 ; ii. 107 ; illustra- tion of Saxon institutions from, i. 45, 46 ; coincidences of, with Anglo- Saxon law, i. 205, 206 ; issued in Frank assemblies, i. 128. — illustrating military matters, i. 59O' 591- Carlisle, parliament of, ii. 156, 247, 581 ; iii. 326, 327, 387. Carucage, i. 501, 503, 583 ; great carucage of 1198, i. 510; taken by John, i. 516. — under Henry III, ii. 30, 36. Castles, built in Stephen's reign, i. 323-325, 328; ordered to be demolished, i. 333 ; resumed by Henry II, i. 452, 482 ; by Long- champ, i. 498 ; by Henry III, ii. 34; demolition of, ordered, ii. 27; fortification of, iii. 536-539. — right of the duke of Normandy to garrison castles, i. 250, 309, 451. — to be committed to native English- men, ii. 74 ; the aliens refuse to surrender, ii. 78. — constables of, their unlawful acts, ii. 324. Cavendish, Sir J ohn, murdered by the rebels in 1381, ii. 459. — John, fishmonger, his petition against Micliael de la Pole, ii. 610. Centenarius, i. 54, 100. Ceorl, i. 64, 80 ; becomes thegn worthy, i. 155, 162 ; his burh-bryce, i. 175. — reduced to villenage, ii. 453. Chamberlain, the king's, office of, i. 353' 354' 379- Chancellor, office of, i. 351-353, 379, 598, 603 ; purchaseable, i. 604 ; office of, in the house of Lords, iii. 455- Chancellors — William Gifford, i. 304. Roger of Salisbury, i. 353. Roger le Poor, i. 321. Thomas Backet, i. 407, 449, 453- 461. Ralph Warneville, i. 482. Geoffrey, son of Henry II, i. 480, 489. W^illiam Longchamp, i. 497-506. Hubert Walter, i. 515-519. Ralph Neville, ii. 41-50. Henry Wengham, ii. 77. Thomas Cantilupe, ii. 91, 204. Walter de Merton, ii, 103, 104, 294. Robert Bumell, ii. 107, 111, 294. John Langton, ii. 327. Ralph Baldock, ii. 320. Walter Reynolds, ii. 328, 333. Adam of Osgodby (keeper), ii. 331- John Sandale, ii. 338. Robert Baldock, ii. 353, 360. John Hotham, ii. 368. Henry Burghersh, ii. 371, 384. John Stratford, ii. 384. Robert Stratford, ii. 384. Robert Bourchier, ii. 387. Index. 627 Chancellors {continuecC) : — John Paming, ii. 394. John Sadington, ii. 394. John Uiford, ii. 394. John Thoresby, ii. 413. William Edington, ii. 413. Simon Langham, ii. 413. William of Wykeham, ii. 413, 420; again, ii. 483. Robert Thorpe, ii. 422, 424. John Knyvett, ii. 424, 428. Adam Houghton, ii. 436. Richard le Scrope, ii. 448 ; again, ii. 466. Simon Sudbury, ii. 448-458. "WilKam Courtenay, ii. 460, 461. Robert Braybrook, ii. 467. Michael de la Pole, ii. 467. Thomas Arundel, ii. 474 ; fourth time, iii. 59 ; fifth time, iii. 69. Edmund Stafford, ii. 485 ; again, iii. 33- John Scarle, iii. 15. Henry Beaufort, iii. 38-47 ; again, iii. 76 ; again, iii. 100. Thomas Longley, iii. 48 ; again, iii, 88, 89. Thomas Beaufort, iii. 63. John Kemp. iii. 104. See Kemp. John Stafford, iii, 114, 132. Richard Neville, earl of Salis- b\iry, iii. 167. Thomas Bourchier, iii. 170-176. William Waynflete, iii. 176, 179. George Neville, bishop of Exeter, iii, 189, 195, 203, Robert Stillington, bishop of Bath, iii, 203. Thomas Rotherham, archbishop of York, iii, 21 4. J ohn Russell, bishop of Lincoln, iii. 222. Chancery, petition^? referred to, ii. 263 ; equitable jurisdiction of, ii. 268, 269 ; ceases to follow the king, ii. 269. — purchaseable, i. 384, 497, 604. Charter, the great, i. 528-544; ii, 2 sq. ; the maintainers of, excom- municated, ii. 7, 1 1 ; their later history, ii. 28, 29, — reissued in 1216, ii. 21, 22 ; in 1 21 7, ii. 26, 27, and in 1225, ii. 37 ; confirmed in 1 253, ii. 67 ; recognised in 1275, ii, 109 ; ordered to be fixed on church doors, ii. 112; taken down, ih. ; confirmation of, ii. 140 sq., 144, 148. Charters, i. 339. of Henry I, i. 305, 526, 532 ; of Stephen, i. 320, 322, of Henry II, i. 450, — of towns, i. 411, 623 sq. — of the forest, ii. 26-28 ; threat- ened by Henry III, ii. 39, Charles the Great, i. 45, 116, 129, 203, 206, 228, 441. Charles the Bald, i. 129, 205, 237, 441. Charles III, deposition of, ii. 365. Chester, palatine earldom of, i. 363 ; held by the heir apparent, ii. 47, 94; iii. 432, 511; exchanged with Simon de Montfort, ii. 94. — Hugh of AATanches, earl of, i. 361. — Ranulf, earl of, ally of Henry II, i. 449, 452. — Hugh, earl of, rebels against Henry II, i. 477, 478. — Ranulf, earl of, i. 541 ; ii. 46, 47 ; his policy, ii. 297. — John, eai'l of, ii. 47. Cinque Ports, i. 592-594 ; assist Simon de Montfort, ii. 89 ; representatives of, summoned to parliament, ii. 93 ; iii. 403, 420, 451 ; submit to Henry III, ii. 95 ; at war with Yarmouth, ii. 287 ; wardens of, ii. 289. Chichele, Henry, archbishop of Can- terbury, not responsible for the French war, iii. 83 ; opens the par- liament of J 42 2, iii. 96; mediates between Beaufort and Gloucester, iii. loi ; again, iii. 102 ; threatened with the loss of bis legation, iii. 300, 301. Cistercians, i. 503; ii. 65, 173, 191, 194. Civitas, the German, i. 28, 29, 70. Clarence, Lionel, duke of, ii. 354, 416; iii- 433- — Thomas of Lancaster, duke of, iii. 33 ; lieutenant of Ireland, iii. 38, 59 ; marries his uncle's widow, iii. 66 ; commands an army in alliance with Orleans, iii. 69 ; made duke, ib. ; killed, iii. 90. — George, duke of, iii. 195 ; intrigues with Warwick, iii. 202, 205 ; married S S 2 628 Index. to Isabella Neville, iii. 205 ; joins in Warwick's invasion, iii. 206 ; pardoned, iii. 207 ; flies to France, ih. ; succession settled on him, iii. 208 ; goes over to Edward, iii. 210 ; accused and attainted, iii. 215 ; his death, iii. 215, 216. Clarendon, assize of, i. 103, 467- 469, 484, 505 ' 599: — constitutions of, i. 431, 464-466, 599; ii. 169 ; iii. 295, "341. — Sir Roger, iii. 36, 49. Clement V, pope, absolves Edward I from his oath, ii. 155, 336; hears his charges against Winchelsey, ii. 154; negotiates with Edward II, ii. 316, 322, 324, 325 ; his usurpa- tion of patronage, iii. 31 1, 312. Clement VI, pope, iii. 313. Clergy, the estate of, ii. 169-176 ; causes of its political imity, ii. 170 sq. ; relation of, to the state, iii. 2S7 sq. — assemblies of, ii. 170, 175, 194- 198, 408. — social importance of, iii. 363-368 ; great numbers of, iii. 364 ; want of unity in, iii. 367, 368 ; political im- portance of, iii. 520-525. — parliamentary representation of, ii. 126, 129, 199-201, 252, 407 ; iii. 318, 319. — revenue of, estimated valuation of, ii. 550. — share in legislation, ii. 591, 593, 595, 596. — protests of, ii. 598. — benefit of, iii. 341, 342. — convict, iii. 346, 347. Clovesho, i. 77, 129, 218, 222, 231. Coinage, ancient laws on, i. 206, re- form of, i. 334, 488; ii. 264, 316, 324, 331, 393, 544. — profits of, ii. 551. Collector, papal, iii. 334. Col onus, the Roman, i. 23. Comitatus, theory of, i. 22, 24-26, 55. 75> 80 ; among the Anglo- Saxons, i. 149, 150, 153, 154, 254. Commendation, i. 153, 254. Commons, estate of, ii. 166-168. — representation of, ii. 220-224; wages of members, ii. 229, 235; iii. 425 ; numbers of, ii. 235 ; iii. 448 sq. Commons, do not share the judicial power of parliament, ii. 248 ; but the legislative, ii. 247 ; iii. 261- 263 ; and the taxative, iii. 263, 264. — privileges of, iii. 490 sq. — debate on all public matters, iii. 260, 261. — rising of the, ii. 405-460. Communa, i. 411, 412-419; iii. 559, 560. — French, as contrasted with Eng- lish, i. 420-422. — totius terrae, i. 539. — liberorum hominum, i. 591. Communitas, meanings of, ii. 167. Constable, ofl&ce of, i. 354, 379 ; strained jiu-isdiction of, ii. 324 ; iii. 282, 283. Constables — Miles of Hereford, i. 363, 390, 392. Henry of Essex, i. 454, 455, 460, Humfrey Bohun. See. Bohun. Henry Percy, iii. 15. John of Lancaster, iii. 41. Richard WydviUe, iii. 202, 282, 283. John Tiptoft, iii. 208, 281-283. Edmund duke of Somerset, iii. 156. Henry duke of Buckingham, iii. 226. Constitutio domus regis de procura- tionibus, i. 345. Convocation, of the clergy, ii. 194- 199 ; its relation to parliament, ii. 200, 201 ; iii. 319, 320 ; conference of the two, ii. 198, 199; proceedings in, iii. 462. — votes of money in, ii. 534, 535. — its constitution, ii. 194-200; iii. 318 ; royal interference with, iii. 319, 320, 338, 339. Cornwall, Reginald, earl of, son of Henry I, i. 363, 478. — Richard, earl of, ii. 41, 44, 51, 55 ; opposes Henry III in 1242, ii. 58 ; his second mariiage, ii. 60 ; Sicily ofiered to, ii. 69 ; is made king of the Romans, ii. 70; supports Henry; ii. 72 ; mediates, ii. 87 ; taken at Lewes, ii. 89 ; his son Henry, ii. 92 ; dies, ii. 98. — Edmund, earl of, ii. 119. — duke of, ii. 417 ; iii. 432, 433. Index. Cornwall, small shires of, i. lOO. — Sir John, iii. 102 ; made a baron in parliament, iii. 116, 128, 437, Coronation, origin of, i. 144 ; of queens, i. 342, 517; second coronation of Richard I, i. 504; of John i, 517 ; second coronation of Henry III, ii. 31- Coronation days, courts of the Nor- man kings held on, i. 369 ; of Henry II, i. 455, 562. Coronation oath, i. 146-148; of Wil- liam I, i. 258 ; of William II, i. 295 ; of Henry I, i. 304 ; of John, i. 515 ; of Henry III, ii. 18 ; of Ed- ward I, ii. 105, 150 ; of Edward II, ii. 246, 316-318; of Henry IV, iii. Coroners, institution of, i. 505, 506, 535 ; in boroughs, i. 627 ; election of, ii. 209, 227; jurisdiction of, ii. 331. Council, the royal, of the Norman kings, i. 356-360. — under Henry II, i. 486, 487, 603 ; its judicial work, i. 603. — under Henry III, ii. 40, 255, 256; powers claimed by, in competition with the national council, ii. 240, 245 ; proposals for election of, ii. 257 ; under Edward I, ii. 258 ; re- lation to parliament, ii. 259, 260. — the national, or commune conci- lium, i. 564-566 ; composition of, i. 566-5 70 ; deliberations of, under Henry II, i. 570-572 ; instances of opposition to the royal wUl, i. 571, 572 ; view of, at the close of the thirteenth century, ii. 194. — of the barons, magnum concilium, ii. 204, 260. — Privy, ii. 260 ; jealousy of parlia- ^ ment towards, ii. 406 ; vote of con- fidence in, iii. 55, 248; Fortescue's plan of, iii. 245, 246; president of, iii. 245. — names of, declared in parliament, iii. 44, 248 ; wages and oaths, iii. 250, 251 ; rules for, iii. 251, 252 ; powers of, defined, iii. 252, 253; petitions in, iii. 254. — legislation, ii. 261, 264; ordaining power, ii. 587; iii. 253. — jurisdiction of, ii. 606. — executive power of, iii. 254, 255. Councils, ecclesiastical, of Anglo- Saxon times, i. 230-232; under the Norman kings, i. 374, 375 ; under Henry II and his sons, i. 572 ; growth of representation in, ii. 197, 198. — diocesan and archidiaconal, ii. 196. — provincial, iii. 319, 320. See Con- vocation. — national church, rare, ii. 198, 199. — limitations of action of, iii. 323. Counsel and consent, i. 127, 194, 370, 371 ; ii. 37, 250-252, 264. County courts, under the Norman kings, i. 392, 393; practice of jury in, i. 397 ; political importance of, ii. 186, 187 — use of summons to, i. 568. — election of knights in, i. 568 ; ii. 209, 227-231, 425, 433 ; iii. 56, 65, 78, III, 116, 256-258, 401, 403- 425. — proclamation of charters in, i. 576 ; of military summons in, ii. 211. — before the itinerant justices, i. 605- 607. — recognition in, i. 621 ; ii. 209. — regulated by Henry III, ii. 27, ^73- — constitution of, ii. 205, 206; busi- ness of, ii. 208 ; military affairs of, ii. 210, 211 ; remedial work of, ii. 212 ; fiscal work of, ii. 213; dis- cussion of taxation in, ii. 214, 215 ; negotiation with the crovm, ii. 215, 216. Courtenay, William, bishop of London, ii. 428 ; his action against Wycliffe, ii. 438, 446 ; in favour of Wykeham, ii. 438 ; archbishop of Canterbury, ii. 461 ; chancellor, ii. 460, 461 ; resigns, ii. 462 ; disliked by Richard, ii. 469; a commissioner in 1386, ii. 476; mediates, ii. 478; dies in 1396, ii. 485. Court baron, i. 84, 104, 105, 399. Court leet, i. 88, 104, 105, 399, 417. — customary, i. 399. — ecclesiastical, in Anglo-Saxon times, i. 233; separated from the secular courts, i. 277, 283, 284; jurisdiction of, iii. 339-346; abuses of, iii. 373- 630 Index, Coventry, parliament at, ii. 46, 181 ; iii. 387. Creation money, iii. 433, 435. Cromwell, Ealph, lord, a councillor in 1422, iii. 98; mediates between Beaufort and Gloucester, iii. 102 ; removed from the cliamberlainship, iii. 114 ; demands a reason in par- liament, iii. 115 ; becomes treasurer, iii. 117; his accounts, iii. 117, 118, 458; resigns in 1443, iii. 132; leads the attack on Suffolk, iii. 144, 145 ; quarrels with the duke of Exeter, iii. 169 ; with Warwick, iii. 173. Curagulus, i. 173, 177. Curia regis, i. 376, 387-390 ; trial of the bis.hop of Durham in, i. 439, 440 ; reformed by Henry II, i. 486- 488. — machinery of, i. 596-603 ; breaks up into three courts, ii. 266, 267. Customs, grant of the ancient custom to Edward I, ii. 109, 244, 523. — on wool, amount of, ii. 547, 548. — new customs, ii. 156, 244, 324, 329, 523-525 ; abolished by the ordi- nances, ii. 330, 525; re-established, ii. 525. — right of parliament to vote, ii. 244. Cynebot, i. 144. Cyne-hlaford, i. 177. D'Amory, Eoger, ii. 340, 342, 346, 348 ; dies, ii. 349. Danegeld, i. 105, 133, 205, 239; imder the Conqueror, i. 279, 289, 301, 510 ; abolition of, promised by Stephen, i. 321 ; accoimted for in the Pipe Rolls, i. 381, 382; dis- cussed in council, i. 462, 463 ; dis- appears from the Rolls, i. 582. Dane law, i. 196, 545. Danes, importance of the struggle with, i. 173 ; consequences of their union with the English, i. 197-200; in church history, i. 239 ; referred to, i. 612. Darrein presentment, i. 535, 605, 615, 617. De la Pole, William, arrested m 1341, ii. 385 ; negotiates loans for Ed- ward III, ii. 533. — Michael, ii. 464 ; chancellor, ii. 467 ; earl of Suffolk, ii. 468 ; im- peachment of, ii. 474, 475 ; assists Richard at Nottingham, ii. 478 ; escapes, ii. 479; condenmed in his absence, ii. 480, 481 ; dies abroad, ii. 483. De la PqIc, Michael, restored to the earldom in 1399, iii. 22 ; his advice on war, iii. 34. — William, earl of Suffolk, ambassa- dor to France, iii, 132; concludes the marriage treaty of Henry VI, iii. 133; thanked in pai-liaraent, ih.', his rapid rise, iii. 134; intends to marry his son to Margaret Beau- fort, iii. 135 ; question of his com- plicity in the arrest of Gloucester, iii. 137 6(2. ; duke of Suffolk, iii. 142 ; his impeachment, trial, and fate, iii. 145-1 50. — John, duke of, a Yorkist, iii. 181 ; married to a sister of Edward IV, iii. 220. — John, earl of Lincoln, son; de- clared heir to Richard III, iii. 231. Demesne, of the crown, i. 402 ; re- sumption of, by Henry II, i. 451 ; by Henry III, ii. 26, 33, 34, 555; proposed under Henry IV, iii. 24, 47. See Resumption, acts of. — gifts out of, forbidden, ii. 329, 554- — towns in, i. 409 ; ii. 232-234. — right of tallaging, ii. 517-521. Despenser, Hugh le, justiciar, ii. 84, 9i'95- — Hugh le, son of the justiciar, 11. 319, 336 ; favours Gaveston, ii. 321 ; his influence with Edward II, ii. 333, 336; removed from the council, ii. 338; his impolicy, ii. 345; pro- ceedings against, ii. 347 ; adminis- tration, ii. 354 ; earl of Winchester, ii. 360 ; hanged, ih. ; acts against him repealed, ii. 497. — Hugh le, the younger; married to one of the Gloucester co-heiresses, ii. 336, 340; chamberlain, ii. 345 ; quarrels with the earl of Hereford, ib. ; political views of, ii. 353 ; beheaded, ii. 360. — Henry le, bishop of Norwich, ii. 402, 428, 459; his crusade, ii. 466; defends Richard II, ii. 502 ; re- conciled, iii. 31. — Thomas le, ii. 494 ; made earl of Index. 631 Gloucester, ii. 496, 498; iii. 16; deprived of the earldom, iii. 21 ; killed at Bristol, iii. 26 ; sentence of forfeiture, iii, 31 ; his widow Constance, iii. 48. Devonshire, Thomas Courtenay, earl of, iii. 160, 165; is on the king's side at S. Alban's, iii. 171. — Thomas Courtena^y, earl of, son, iii. 180, 187 ; executed after Towton, iii. 190; attainted, iii. 196. — Humfrey Stafford made earl of, by Edward IV, iii. 285; put to death, iii. 206. — Thomas Courtenay, lawful earl, killed at Tewkesbury, iii. 210. — earldom of, origin of, i. 360. Dioceses, formation of, i. 117, 224, 225 ; dates of the creation of, i. 226, 237. Dithmarschen, early constitution of, i- 57. Domesday Book, i. 188, 259, 266, 275, 279, 385, 386; a new one projected, i. 302, 386, 510. — boroughs mentioned in, i. 408. — as illustrating villenage, i. 427, 428. — the ratebook of the country, i. 584. Drengs, i. 262. Dukes, dignity of, iii. 433, 434, 526, Dunstan, religious revival under, i. 241 ; king's oath prescribed by, i. 147 ; his policy, i. 208. Ealdorman, i. 111-113, 114, 134, 170; appointment of, i. 134, 140; func- tions of, i. 158-160; hereditary, i. 112. Earl, title of, supplants that of eal- dorman, i. 160 ; institution of, under William I, i, 270, 271 ; position of under the Norman kings, i. 360, 361 ; how invested, i. 362, 363 ; slow increase in the number of, i. 569- — creation of, in parliament, ii. 614 ; iii. 435, 436. Earls, rebellion of, against William I, i. 291 ; iiscal earls, made by Stephen, i. 324, 362 ; and degraded by Henry II, i. 451 ; rebellion against Henry II, i. 476-480; attitude towards John, i. 513, 514. Edgar, his regulation of the hundred, i. 98, 105; his ealdormen, i. 117; his fleet, i. 207 ; his system of government, i. 208, 209 ; his legis- lation touching tithe, i. 228; his ecclesiastical laws, i. 242 ; his coro- nation at Bath, i. 174. Edhel, Ethel, portion of land, i. 52, 75. 549- Edhilingi, i. 42, 44 ; ii. 165. Ethel, noble, i. 149. Etheling, wife of, restricted to the king's kin, i. 158. Edictum, Pistense, i. 80, 129. Edmund, king of England, i. 127. Edward, the elder, i. 173, 175, 195. Edward the Martyr, i. 136. Edward the Confessor, i. 202, 203. — laws of, i. 305 ; his seal and chan- cellor, i. 352 ; translation of, ii. 97, 222 ; palace of, iii. 384. Edward I, king, son of Henry III, ii. 79 ; sides with Simon de Moutfort, ii. 83 ; allegiance sworn to him, ii. 86; at war, ii. 87; a hostage at Lewes, ii. 90 ; escapes, ii. 95 ; at Evesham, ib. ; goes on crusade, ii. 97, 98; his accession, ii. 100; sketch of his reign, ii. 100-157; his legislation, ii. 106 sq. ; his im- portance in constitutional history, ii. 291-304. Edward II, as prince, ii. 136, 141 ; knighted, ii. 156; his character, ii. 313 ; in disgrace with his father, ii. 314; his accession, ii. 315; sketch of his reign, ii. 315-360 ; his death, ii- 363- Edward III, as earl of Chester, ii. 357 ; caUs a parliament, ii. 360 ; his ac- cession, ii. 368 ; sketch of his reign, ii. 368-441 ; repeals the statutes of 1341, ii. 391. Edward the Black Prince, ii. 423 ; his marriage, ii. 416 ; returns from Gascony, ii. 419 ; resigns Aquitaine, ii. 424 ; shares in the action of the Good Parliament, ii. 429 ; dies, ii. 429, 432. Edward, Prince of Wales, son of Henry VI, iii. 164, 168; his right to regency recognised, iii. 167, 174 ; said to be a changeling, iii. 178; goes to Scotland, iii. 190 ; killed at Tewkesbury, iii. 210. 632 Index. Edward IV, as earl of March, iii. 179, 181 ; wins the battle of Mor- timer's Cross, iii. 188; becomes king, iii. 189 ; history of his reign, iii. 189-219; his death, iii. 219; character, ih. ; his reputed mar- riage with Eleanor Butler, iii. 224. — V, born, iii. 211; succeeds iii, 220; his reign, iii. 221-224. — son of Richard III, prince of Wales, iii. 226; dies, iii. 231. Egbert, king of Wessex, i. 1 74, 203. Eleanor, wife of Henry II, i. 448, 495, 500, 517, 563. — wife of Heni-y III, ii, 53, 92, 531. — wife of Edward I, ii. 320. — wife of Simon de Montfort, ii. 55. Election, forms of, i. 635. — of kings, i. 135, 320, 330, 338, 339, 374; ii. 10, 14, 48; Hubert Walter's speech on, i. 515. — of knights of the shire, i. 622 ; iii. 396, 403 S2.; ii. 225-229, 433; attempts to influence, ii. 436, 479, 495, 617; legislation on, iii. 56, 65, 78, III, 116, 256-258; contested, iii. 421-424. — of bishops, i. 134; iii. 306-317. — of borough magistrates, i. 626, 627. — of borough representatives, ii. 220, 235 ; iii- 413, 414-421. — of grand jury, i. 621. — of sheriffs, ii. 78, 207, 433. — of other county officers, ii. 213, 272. — of ordainers, ii. 327. — claim of, to the great offices of the state, ii. 40-64 ; authorized by the ordinances, ii. 330; and in 1377, ii. 444, 448 ; see ii. 558, 559. Electors, of 1264, ii. 90, 91. — of knights of the shire, ii. 618 ; iii. 56, 6;, 78, iii, 116, 256-258. Emperor, Richard I suiTenders his crown to the, i. 504, 561. — Otto IV, i. 522 ; ii. 14, 173. — Frederick II, ii. 52, 63, 69, 107 ; his great courts, ii. 160 ; his estate of lawyers, ii. 189, 190; his cha- racter as a legislator, ii. 297. — Sigismund, iii. 86, 261. — Richard II calls himself, ii. 491. Englishry, i. 196, 549; presentment of, abolished, ii. 382. Eorl, i. 64, 80, 115, 151, 152, 162, 170, 175. Escheats, i. 401, 484, 536; alienation of. ii. 555. Escheators, wrongful dealings of, ii. 324. Estates, theory of three, i. 583 ; ii. 5, 1 61-166 ; precedence of, ii. 168 ; imperfection of the theory, ii. 193, 194. Ethelbert, king of Kent, i. 158, 175, 217. Ethelred, the Unready, deposed ; i. 139, 210; his high claims as king, ii. 177 ; his regulation of the fleer, i. 105 ; his imposition of Danegeld, i. 105, 133 ; his oath at coronation, i. 147 ; his legislation, i. 194, 201. Ethelwulf, donation of, i. 228, 237 ; has a grant of land in witenagemot, i. 131 ; discarded by his subjects, i- 139. 237. Eustace, son of king Stephen, i. 331, 341, 375, 407. Exchequer, i. 376, 377-380; question as to its origin, i. 438, 439 ; restora- tion of, by Henry II, i. 450 ; inquest into receipts, i. 485 ; dialogue on, i. 491, 597 ; inquiry into, i. 508 ; as afi"ected by the great charter, i. 536. — machinery of, i. 596-598 ; changes in, ii. 275, 276 ; all revenue to be paid at, ii. 330. — black book of, i. 263, 264, 345, 584. — red book of, i. 584. — petitions referred to, ii. 263. — court of, at Westminster, ii. 266 ; chief baron of, ii. 267; restriction of business, ii. 330. — chancellor of, ii. 275. — issue rolls of, ii. 545. Farm or Fenn, of the counties, i. 1 1 7, 380, 381 ; amount of, ii. 551. Fealt}^ form of, iii. 51+, 515. Feorm-fultum, ii. 535. Feudal government, logical develop- ment of, i. 3, 58, 255. — tenure, five marks of, i. 383. — revenue, i. 383 ; military system, i. 589. Feudalism, theories of its origin, i. 153, 251-256; its introduction into Index. England, i. 259, 260; its character in England, i. 267 ; as expanded by William Rufus, i. 300-302 ; exem- plified in the reign of Stephen, i. 328, 335. 336. Feudum, origin of the word, i. 251. Fifteeuth, grants of, ii. 36, 37; see Taxes. Fifteenths and tenths, estimated amount of, ii, 549. Firma Burgi, i. 410, 624, 625. Fleet, see Navy. Fleta, i. 86; ii. 107, 268 ; iii. 517. Folkland, i. 77, 130, 142, 184, 190; becomes royal demesne, i. 193. Folkmoot, i. 116, 120. Folkiight, i. 104, 115, 208. Forest law, i. 289, 302, 322, 323, 384, 403 ; administered by Henry II, i. 471, 483, 489 ; by Richard I, i, 511 ; in the great charter, i. 537 ; clerical offenders against, iii. 342. — of Canute, i. 200 ; — charter, i. 26-28, 39, 150; ordi- nance, ii. 155. — perambulations, ii. 39 ; Edward I's conduct with respect to, ii. 1 50-152, 155- Forest revenue, i. 402, 403. Fortescue, Sir John, iii. 194; attainted, iii. 196 ; taken at Tewkesbury, iii, 210 ; pardoned, iii. 213 ; his theory of the English constitution, iii. 240 -246 ; on torture, iii. 281. France, history of, as affected by feudalism, i. 3, 4 ; legal systems in, i, 9, — influence of, on English manners, ii. 309, 310. — states general of, ii. 160-162 ; illustrating the policy of Edward I, ii. 265, 291, 292, 295, 297. — Edward Ill's war with, ii. 377, 405, 410; his assumption of the title of king of, ii. 378, 383, 419. — Henry V's war with, iii. 82, 268, 269. Franconia, i. 5, 10. Fi-ankpledge, " i. 87, 108, 275; ii. 434- Franks, appearance of, in history, i. 37, 38 ; their system illustrated by the Salian law, i. 53-56 ; their constitutional assemblies, i, 122, 123; oath of allegiance taken to their kings, i. 148 ; relation of Frank royalty to Anglo-Saxon, i. 179. Franks, origin of inquests by jury, i. 613. FreehoHers, political position of, ii. 184, 185 ; iii. 551-558 ; see Electors and Elections. Frilingi, i. 42, 44; ii. 165, Friscobaldi, ii. 323, 525, 532 ; banished, ii-. 330,. 532. Frisians, i, 40, 48. Frith, i. 181, 183. Frith-borh, i. 85. Frith-gild, i. 414, 415. Fulford, Baldwin, iii. 181. Fulthorpe, Sir William, iii. 50. Fyrd, i. 76, 117, 190-193, 268, 301, 433> 456, 589, 591 ; see Armies. Fyrdwite, i. 190, 259, 590. Ga, or gau, the, i. 96, iii. Galloway, relations of, to England and Scotland, i, 557 ; scutage of, i. 489 ; mercenaries from, i. 588. Garter, order of, founded, ii. 399. Gascoigne, Sir William, iii. 50, 76, 77- Gascony, petitions touching, ii. 263. Gaveston, Piers ; his early associa- tion with Edward II, ii. 314, 319, 320; banished by Edward I, ii, 320; recalled, and made regent, banished again, ii. 321 ; returns, ii. 325, 328; banished by the or- dainers, ii. 331 ; recalled and mur- dered, ii. 332. Gentry, origin and growth of, iii, 544 sq. Gerefa, i, 82, 83, 90, 93, 95, 102, 274 ; heah-gerefa, i. 125, 343 ; port- gerefa, i. 93, 404 ; tun-gerefa, i. 42, 82, 95. Germany, development of history m, i. 5, 6 ; law in, i. 10. — Caesar's account of, i. 12, 16 ; that of Tacitus, i. 17-20; changes of national nomenclature in, i. 38. — civic history in, i. 422, 423. — representatives in the diets of, ii. 160, 162 ; estates in the diet, ii. 165. Gesithcund, i. 81, 156, 162, 190, 232. Gesiths, i, 124, 149, 150 ; importance of, in Anglo-Saxon history, i, 152- 155- ^34 Index. Gingra, i, 104. Gloucester, parliament of 1378 at, ii. 446; of 1407, iii. 260, 387, Gloucester, earl of, Richard de Clare, rival of Simon de Montfort, ii. 75, 80, 83, 85 ; dies, ii. 86 ; his policy, ii. 297. — Gilbert, refuses to swear allegiance to Edward in 1263, ii. 86; his neutral position, ii. 88 ; at Lewes, ii. 89, 90 ; lakes part in govern- ment, ii. 91, 93 ; quarrels with Simon, ii. 94 ; seizes London in 1267, ii. 97 ; takes the oath of allegiance to Edward I, ii. 103 ; his private war, ii. 120, 123, 124; marries Johanna of Acre, ii. 121 ; his policy, ii. 297. — Ealph de Monthermer, ii. 148, — Gilbert of Clare ; his sister married to Gaveston, ii. 320 ; takes Gaves- ton's part, ii. 325 ; an ordainer, ii. 327; mediates in 1312, ii. 333; killed at Bannockburn, ii. 335 ; coheiresses of, ii. 340. — Thomas of Woodstock, duke of, ii. ■416 ; earl of Buckingham, ii. 442 ; growth of his influence, ii. 463 ; made duke, ii. 468 ; heads the baronial party, ii. 469 ; remonstrates with Richard, ii. 473 ; his action as an appellant, ii. 478, 479 ; renewed dislike to Richard, ii. 491 ; leaves the court, ii. 493 ; arrested, ii. 494 ; accused and dies, ii. 495 ; his enemies accused, iii. 19-22 ; his descendants, iii. 168. — Hmiifrey of Lancaster, duke of, iii. 58 ; made duke, iii. 82 ; lieu- tenant of the realm in 1420, iii. 90; charge of Henry V to, iii. 92 ; his character, iii. 94 ; opposition to the Beaufort's, ih. ; vicegerent in Eng- land, iii. 95 ; his position settled by parliament, iii. 97, 98 ; his foreign intrigues and expedition, iii. 99 ; liis first quarrel with Beaufort, iii. loi ; his league with Bedford, iii. 102 ; reconciled with Beaufort, iii. 103, 104 ; agrees to act by the advice of the council, iii. 105 ; his power as protector defined, iii. 107 ; attacks Beaufort again, iii. 109 ; his pro- tectorate ends, iii. no; lieutenant during the king's absence, iii. 112 ; makes a third attack on Beaufort, iii. 113; compromises, iii. 114; defence of lord Cromwell against, iii. 117; dispute with Bedford, iii. 121 ; his campaign in 1436, iii. 123 ; bitterly attacks Beaufort in 1440, iii. 125 ; his wife tried as a witch, iii. 127 ; his opposition to the peace and to Henry's man-iage, iii. 134 ; his arrest and death, iii. 1 35, 136- 138 ; trial of his servants, iii. 138. Gloucester, Reginald Bowlers, abbot of, iii. 159. — Robert, earl of, see Robert. — Geoffrey Mandeville, earl of, i. 540; ii. 9, 28. Goths, i. 10 ; first appearance of, i. 37. Graf, position of the, i. 55, loi. Green, Sir Henry, ii. 494, 498. Gregory I, his ecclesiastical division of England, i. 217. Gregory VII, iii. 291 ; his dealings with William I, i. 285 ; iii. 292. Gregory IX, ii. 39, 42, 68, 1 74, 305, 306, 310- Gregory X, ii. 427 ; iii. 314. Grey, of Ruthyu, Reginald lord, iii. 34, 35, 38 ; suit of, against Hastings, iii. 534- — Thomas, marquess of Dorset, iii. 220, 221. Grith, i. 181, 183. Grosseteste, Robert, bishop of Lincoln, ii. 57, 62, 294 ; his opposition to the pope's usurpations, ii. 66, 67 ; his gravamina, ii. 73; deatb, ii. 72; his principles, ii. 300 304 ; main- tains clerical immunities, iii. 341 ; on the Jews, ii. 123, 530. Guilds, i. 405, 412, 415; Anglo-Saxon, 1.413,414. — merchant, i. 411, 416, 417, 624, 625 ; iii. 561-565. — ci-aft, i. 417 ; iii. 565 s^. — cnihten, i. 407, 415. — thegns, i. 413. — illegal or adulterine, i. 418; iii. 566. — political importance of, i. 419. — legislation on, ii. 485. Hans, Hans-hus, i. 411. Harclay, Sir Andrew, ii. 349 ; earl of Index. ^35 Carlisle, ii. 353 ; his treason and death, ii. 353, 354. Hastings, see Pembroke. — Wiiliaiii lord, captain of Calais, iii. 220, 221 ; beheaded, iii. 223. Haxey, Thomas, his bill, ii. 492, 557, 593 ; iii- 23. . Hengham, Justice, ii. 107, 120. Henry I, liis accession, i. 303 ; sketch of his reign, i, 303-318; his oath and charter, i. 304, 305 ; overthrows Robert of Normandy, i. 306-309 ; his policy, i. 312-318 ; revenue of, i. 385 ; his laws restored, i. 526, 527. 532. — of Blois, bishop of Winchester, i. 325, 330, 461. Henry II, crown secured to, i. 332 ; sketch of his early career, i. 446, 447 ; his accession, i. 450 ; and re- forms, i. 451, 452 ; reduces the hostile barons, i. 453; survey of his reign, i. 450-494. Henry, son of Henry II, crowned, i. 474, 475 ; his rebellion, i. 476-480 ; second rebellion, i. 490 ; character, ih. ; death, ib. ; referred to, i. 563. Henry III, fixes the liolding of hun- dred courts, i. 605 ; his acce.^sion, ii. 18; sketch of his reign, ii. 18- 99 ; constitutional results of his minority, ii. 40. Henry IV, as earl of Derby, ii. 416 ; leads the baronial party, ii. 469 ; favoured by the Londoners, ii. 471 ; is one of the appellants, ii. 479, 480 ; defeats the duke of Ireland, ii. 479; goes on crusade, ii. 487 ; death of his wife, ii. 490 ; at court, ii. 493 ; at Arundel's trial, ii. 495 ; duke of Hereford, ii. 496 ; his banishment, ii. 500; succeeds his father, ii. 501 ; lands in Yorkshire, ih. ; claims the crown, ii. 506 ; iii. 1 2 ; sketch of his reign, iii. 12-76 ; his character, iii. 7-9 ; summary of results, iii. 70-72 ; relation of his reign to the next, iii. 72, 73 ; — his household expenses, ii. 552 ; income, ii. 546. Hem-y V, as prince of Wales, iii. 18 ; duke of Aquitaine and Lancaster, iii. 23 ; lieutenant in Wales, iii. 38 ; crown settled on, iii. 45, 56 ; his friendship with the Beauforts, iii. 58 ; takes the lead in council, iii. 65 ; allies himself with Burgundy, iii. 66 ; attacked in council, iii. 69 ; his fatlier asked to resign, iii. 68 ; suc- ceeds, iii. 70 ; his character, iii. 73- 76 ; sketch of his reign, iii. 76- Henry VI, birth of, iii. 92 ; his acces- sion, ih. ; sketch of his reign, iii. 92-189; arrested and imprisoned, iii. 201 ; restored and holds parlia- ment, iii. 208 ; taken by Edward IV, iii. 210 ; death and burial, iii. 211. Herbert, Sir William, iii. 189 ; lord Herbert, iii. 195, 202, 203 ; made earl of Pembroke, iii. 204 ; put to death, iii. 206. Heresy, legislation against, ii. 465, 597 ; iii. 25, 31, 32, 333, 351-363; petition on, iii. 63. Heretoga, i. 41, 66, 113. Heriot, i. 157, 261, 443. Hide, of land, i. 21, 74, 167, 264. Hlaford, i. 79, 80 ; and mundbora, i. 176. Holland, John, earl of Huntingdon, ii. 464, 467, 494 ; duke of Exeter, ii. 496 ; degraded, iii. 19 ; joins in the conspiracy of 1400 and is killed, iii. 26; forfeited, iii. 31. — John, son of John, restored to the earldom, iii. 84, 87; victorious at sea, iii. 89 ; duke of Exeter, iii. 281. — Henry, son of John, duke of Exeter, iii. 169; escapes after Towton, iii. 190 ; attainted, iii. 196 ; retm-ns to England, iii. 208, — Thomas, earl of Kent, ii. 464. — Thomas, son of Thomas, ii. 494 ; duke of Surrey, ii. 496 ; degraded, iii. 19 ; conspires and is killed, iii. 26 ; forfeited, iii. 31. — Edmund, earl of Kent, brother of Thomas, iii. 48. Homage, mutual obligation of, ii. 10 ; importance of, iii. 513-520, — of bishops, i. 357; ii. 201, 202; iii. 294, 296. — of the kings for Normandy and Aquitaine, i. 559, 560 ; to them, for Scotland and Ireland, i. 555- 559- — of the king to the pope renounced, ii. 415. Honorius III, pope, ii. 18-38, 42 ; 636 Index, his demands for money and patron- age, ii. 38. Honours and liberties, i. 106, 400. Household, royal, commissions for reform of, ii. 462, 557, 558. — expenses of, ii. 552, 553 ; attack on, iii. 43. — charges of, separated from the national accounts, iii. 265. Howard, John, lord, iii. 220; made duke of Norfolk, iii. 226. Hucbald, his account of the old Saxons, i. 43, 45, 57. Hundreds, i. 72; theoiies of the in- stitution in England, i. 96-108 ; how administered under the Nor- man kings, i. 394, 398, 400 ; how farmed, ii. 149; not to be granted by patent, ii. 434. — Edgar's law of, i. 98. Hundreds-ealdor, i. 101, 102. Hundred-moot, i. 102-105 ; under the Norman kinsfs i. 394, 398, 399 ; modified by Henry 111, i. 605, 606 ; ii. 273 ; by Edward III, ii. 382. Hundred-rolls, ii. no. Hungary, apostolic legation of the kings of, iii. 293. Hungerford, Walter, lord, iii. 98 ; treasurer, iii. 104, 113. — Robert, lord, iii. 180 — Eobert, lord Moleyns, iii. 180; attainted, iii. 196 ; beheaded, iii. 199- ^ . ^ Huntingdon, earldom of, i. 361, 455, 555 ; Guichard d'Angle, earl of, ii. 442 ; earls of, see HoUand; election at, in 1450, iii. 409, 422. Hus-carls, i. 150. Hussite crusade, iii. 106, 109. Iceland, early constitution of, i. 56, £;7; division of, i. 72; grith in, i. 80. Impeachment, practice of, ii. 431, 474, 481, 495, 562 ; iii. 266. Infantry, equipment of, ii. 282, 283 ; wages of, ii. 285. Innocent III, his dealings with John, i. 520, 521, 561; ii. 6-17; iii. 304. Innocent IV, ii, 63 ; iii. 310. Inquest, Norman system of, i. 275, 395 ; under Henry II, i. 613 sq. — of sheriffs, in 1170, i. 472, 473. Inquest by sworn knights, to execute the great charter, i. 622. — of quo waiTanto, ii. no, in. — of office, ii. 324. Ireland, conquest of, projected, i. 453 ; effected by Henry II, i. 475 ; John made king of, i. 486 ; origin of the Engli.sh claims on, i. 558, 559 ; representative peers of, ii. 161 ; petitions touching, ii. 263 ; Richard II visits, ii. 488, 501, 502. Isabella, wife of Edward II, ii. 316, 356 ; prepares an invasion, ii. 357 5 rules the kingdom, ii. 368 ; becomes unpopular, ii. 371 ; is overthrown, ii. 373- Islip, Simon, his letter to Edward III, ii. 404. See Canterbury. Italy, history of, affected by German influences, i. 6, 7. — civic history in, i. 423. Itinerant justices, i. 387, 392, 441, 442, 454, 469, 470-472, 483, 484, 505, 506, 511 ; reformed by Edward I, ii. 269-272. — procedure of, i. 604-608. — assessment of taxes by, i. 585, 600. Jarl, i, 152. Jerusalem, assize of, i. 10, 574; ii« 20. Jews, legislation respecting, ii. 181 ; banishment of, ii. 122, 276, 529- 531- John, made summus rector, 1. 500, 563 ; liis rebellion against Richard, i. 502-504; his accession, i. 513; sketch of his reign, i. 513-543 5 1-18 ; his surrender of the crown to the pope, i. 522 ; abjuration of, by the barons, ii. 9 ; his surrender repudiated, ii. 415. John XXII, pope, iii. 293, 312. Judges summoned to parliament, ii. 258; iii. 391, 393, 445. Judicium parium, i. 537, 620. Jury, inquest by, i. 275, 395, 472, 473 ; how applied, i. 488, 489, 607- 609 ; importance of, in the history of representation, i. 608, 620. — assessment of taxes by, i. 586 ; ii. 213. — presentment by, i. 469, 617; grand jury, i. 469, 621. — trial by, theories of, i. 609-620. Index. ^37 JurjTnen, qualification of, ii. 275; iii. 258. Justiciar, origin of the office of, i. 276 ; name, i. 389 ; growth of the office, i. 346-351, 379, 384; acts as regent, i. 563 ; is spokesman of the commune concilium, i. 572 ; alteration in the character of, ii. 50, 266, 269, 275. Justiciars — William Fitz Osbern, i. 346. Gosfrid of Coutances, i. 347. Eanulf riambard, i. 298 sq., 306, 347. 348. Eoger of Salisbury, i. 312-326, 349, 389, 390. Richard de Lucy, i. 450, 468, 469, 478, 485, 487, 563. Robert of Leicester, i, 467, 563. Ranulf GlanviU, i. 488, 491, 495, 502. ^Yilliam Mandeville, i. 497. Hugh de Puiset, i. 497, 498. William Longchamp, i. 498-501. Walter of Coutances, i. 501. Hubert Walter, i. 502-510, 595. Geoffirey Fitz Peter, i. 511-524, 595- Peter des Roches, i. 542. Hubert de Burgh, ii. 12-45 '■> faU ; ii. 45, 46, 269. Stephen Segrave, ii. 45-49, 53, 294. Hugh Bigod, ii. 77. Hugh le Despenser, ii. 84, 91, 95. Philip Basset, ii. 84. Justinian, legislation of, i. 9 ; insti- tutes of, i. 495. — code of, citation from, ii, 128. J utes, first appearance of, i. 40 ; laws of, i. 48. Keighley, Henry of, imprisoned by Edward I, ii. 150, 151, 154; iii. ^453. Kemp, John, bishop of London, chancellor, iii. 104 ; archbishop of York, ih. ; opposes Gloucester, iii. 112; resigns his seal, iii, 114; at- tacked by Glouce.ster in 1440, iii. 125; becomes chancellor again, iii. 144; declares the king's sen- tence on Suffolk, iii. 148 ; offers a pardon to Cade, iii. 152 ; opens the parliament of 1450, iii. 158; arch- bishop of Canterbury, iii. 162 ; dies, iii. 166. Kenilvvorth, dictum de, ii. 96. Kent, kingdom of, i. 60, 66 ; conver- sion of, i. 217, — Edmund, earl of, brother of Edward II, ii. 356, 369 ; rises against Mortimer and is put to death, ii. 370, 416. — William Neville, earl of, iii. 195. King, the position of, among the an- cient Germans, i. 26-28 ; among the Franks, i. 55 ; institution of, among the English, i. 66, 67 ; election of, among the Anglo- Saxons, i. 135, 136; deposition of, 136-139; name of, i. 140; privi- leges of, i. 141 ; his wergild, i. 143 ; his coronation and consecration, i. 144-148 ; development in the cha- racter of, i. 169 sq. ; of the English, title of, i. 172 ; changes of charac- ter under the Norman rule, i. 274 sq., 338 sq. ; modified under Henry II and his sons, i. 552-554 ; has a superior in God and the law, ii. 12; the rex politicus, ii. 159; his relation to parliament in 1295, ii. 253 ; his personal influence and prerogative, ii. 254 sq.; iii. 502- 520; his presence in parliament, iii. 478-480. — should live of his own, ii. 516; his income, estimate of, ii. 545- 55°- — his list, ii. 566 ; iii. 265. — his power of eluding or nullifying legislation, ii. 579-584 ; of pardon, ii. 582 ; of rejecting petitions, ii. 583 ; his decisive voice, ii. 599. Kirkby, John de, his financial mea- sures, ii. 114, 115; dies, ii. 124. Knaresborough, castle of, iii. 18; forest of, i. 107 ; iii. 272. Knight, institution of, i. 367, 368. Knighthood, distraint of, ii. iii, 211, 281, 282. Knight's fee, i. 262-265, 431, 432 ; number of, i. 264. Knight service, i. 261 sq., 589, 590 ; ii. 278. Knights of the shire, summoned in 1254, ii. 67, 68, 221 ; in 1261, ii. 85, 222; in 1264, ii. 90, 222; in 1265, ii. 92, 222 ; and from 1294 638 hulex. onwards, ii, 222 ; form part of the third estate, ii. 187-189; how elected, ii. 225; did not represent the minor tenants only, ii. 228. See County Court and Inquest. Knights, wages of, ii. 229, 230; iii. 483 ; form of writs of summons, ii. 250 ; iii. 396. ■ — great political importance of, ii. 513. — and squires, as an element in politi- cal life. iii. 544 sq. Kyme, Gilbert Umfravile, titular earl of, iii. 66. — William Taillebois, titular earl of, iii. 145, 199. Labourers, statute of, ii. 400, 408, 433. 454- Ladies, not summoned to parliament, iii. 438, 439. Laenland, i. 77. Laet, Litus, i. 42, 45-47, 55, 64; in Kent, i. 73. Lambeth, treaty of, in 121 7, ii. 25, 76. Lancaster sword, iii. ri. Lancaster, Edmund, earl of, ii. 130, 132 ; iii. II. — Thomas, earl of, ii. 132, 319; his character, ii. 322 ; his hostility to Gaveston, ii. 325 ; an ordainer, ii. 327 ; present at the murder of Gaveston, ii. 332 ; pardoned, ii. 334 ; holds fire earldoms, ii. 335 ; refuses to follow the king, ii. 337 ; made chief of the council, ii. 339; at war with earl Warenne, ii. 341 ; reconciled with the king, ii. 342, 343 ; his obstinac}*, ii. 344 ; rises against Edward, ii. 348 ; de- feated and killed, ii. 349 ; his poli- tical ideas, ii. 350, 351 ; his miracles, ii. 3,';4 ; iii. 205 ; his canonisation proposed, ii. 369. ■ — Henry, earl of Leicester and, ii. 358 ; head of the council appointed for Edward III, ii. 369 ; opposes the queen and Mortimer, ii. 371 ; overthrows them, ii. 373: dies in 1345. 394- — Henry of, earl of Derby, ii. 385; duke of Lancaster, ii. 417 ; iii. ii. — John of Gaunt, duke of, ii. 416; his selfish views and great influ- ence, ii. 417, 418; his wars in France, ii. 424, 425; supports Alice Ferrers, ii. 428 ; his action in the good parliament, ii. 428-435 ; in the minority of Eichard II, ii. 442 sq. ; violence of, ii. 445 ; his plan at the parliament of Glouces- ter, ii, 446 ; his relation to the ri.sing of 1381, ii. 450, 451; his palace sacked, ii. 457 ; change in his plans, ii. 463 ; returns to Eng- land in 1389, ii. 483; reforms, ii. 487 ; quarrels with Arundel, ii. 489 ; his children legitimated, ii. 490, 491 ; at Arundel's trial, ii. 495 ; dies, ii. 501. Lanca.ster, duchy of, iii. loi, 124, 125, 403, 511, 512 ; honour of, i. 402. Land, property in, as described by Caesar and Tacitus, i. 19 ; increased importance of, in the development of the constitutional system, i. 167 ; tenure in Anglo-Saxon times, i. 187-189 ; taxation of, i, 580 sq. Land-book.s, i. 262. Land-rica, i. 102, 104. 186. Lanfranc, policy of, i. 281 ; crowns William Eufus, i. 295 ; his death, i. 296 ; his legal knowledge, i. 441. Language, growth of, i. 8, 547. — English, continued in charters, i. 442 ; scraps of, i. 548, 549 ; to be iised in the courts of law, ii. 414, 577 I petition against the use of French, ii, 577. Lathe, in Kent, i. 100, 105. Latimer, lord, impeachment of, ii. 430, 431 ; one of the executors of Edward III, ii. 436 ; of the council of Richard II, ii, 442 ; excluded, ii. 444. — Thomas, a Lollard, iii. 31. Lawj-ers, possibly a fourth estate, ii. 189. — not to be knights of the shire, ii. 425 ; iii. 46, 257, 400, Lazzi, i. 42, 46. 64; ii. 165. Legates from Home, i. 245 ; list of, iii. 298, 299. Henry of Winchester, i. 324, 330. ^ Nicolas of Tusculum, 1, 520. Gualo, ii. 1 3-30 ; iii. 300. Pandulf, ii, 30-31 ; iii. 300. Otho, ii. 54, 56, 68, 198 ; iii. 300- Index. ^39 Othobon, ii. 112, iq8; iii. .^00. Guy, bishop of Sabina, ii. 90 ; iii. 300. Peter of Spain, iii. 156, 327. Legatine Councils, i. 129, 198; iii. 320. Legation, importance of, iii. 297 ; ac- quired by the archbishops of Can- terbury, iii. 299, and York, iii. 301. — of Wolsey, iii. 301, 320. — offered to kings, iii. 293, 294. Leges Henrici Piimi, i, 206, 398, 495, 605. Legislation, process of, by counsel and consent, i. 126, 127. — forms of, by assize, i. 573, 576. — right of, shared by the three estates, ii. 244, 245, 247; not perhaps equally, ii. 247. — power of, exercised by the king's council, ii. 245 ; by the baronial council, ii. 246. — initiated by petition, ii. 573 ; and otherwise, ii. 589-591 ; iii. 459- 466. — evaded by the king, ii. 579 sq. — petitions for repeal of, ii. 582, 583. Leicester, parliament of 1414 at, iii. 83; of 1426 at, iii. 102, 387. — bishops of, i. 226. — constitution of, i. 409, 425, 426; iii. 581, — earls of. See Beaumont, Montfort, Lancaster. Lewes, battle and mise of, ii. 89, 90. Lewis, son of Philip II, called in by the barons against John, ii. 9 ; his arguments for interference, ii. 13- 1 5 ; comes to England, ii. 15; his struggle, ii. 23-26 ; seizes Poictou, ii. 36 ; dies, ii. 38. Lewis IX, arbitrates between Henry III and the barons, ii. 87, 88. Lex Salica, i. 11, 53-56, 98, 195, 343. — Saxonum, i. 46. Libel of English policy, iii. 268. Libri Feudorum, i. 10. Lichfield, archbishopric of, i. 219, 230. Lincoln, battles of, in TI41, i. 326; in 1217, ii. 24; sieges of, i. 499; parliaments of, ii. 150, 291, 323, 370; iii. 386. — Hugh, bishop of, i. 509, 589. — Robert Grosseteste, bishop of. See Grosseteste. Lincoln, Henry de Lacy, earl of, ii. 319, 322, 325 ; an ordainer, iii. 327 ; regent of England, ii. 328 ; dies, ii. .328, 335-. Livery, legislation against, ii. 485, 608 ; iii. 197, 530-536. Lollards, ii. 450, 451 ; opposed to the baronial party, ii. 469 ; favoured at court, ii. 471 ; increase of, ii. 488 ; complaints of, ii. 489 : legis- lation against, iii. 25, 31, 32; in- fluential men among, iii. 31 ; long petition against, iii. 56 ; action against, iii. 62, 63, 78-80 ; see Heresy ; statute of Leicester against, iii. 81 ; share in Jack Sharp's rising, iii. 112, 361 ; execu- tion of, iii. 362, 363. London, early constitution of, i. 404- 407; communio of, i. 407, 423; changes in the constitution, i. 629- 632; iii. 567-577; supports king Stephen, i. 320. 329, 407; and Simon de Montfort, ii. 89 ; exactions of Henry III from, ii. 64; resists a tallage of Edward II, ii. 334 ; rises a,gainst the government in 1326, ii. 367; against Wycliffe in 1377, i^* 438 ; in his favour in 1378, ii. 446. — election of representatives of, ii. 234; iii. 416. Loyalty, sentiment of, iii. 508. Lynn, elections at, iii. 418, 424, Lyons, Richard, impeached, ii. 430, 431- Maintenance, legislation against, ii. 485, 608 ; iii. 530-536. Maletote, i. 536; of wool, ii. 142, 526-528. Mallus, i. 54, 116, 184. Man, lordship of, iii. 433. Manor, foreshadowed in the Ger- mania, i. 33; relation of, to the township, i, 89 ; expansion under the Norman kings, i. 273, 274, 399, 400. — courts of, ii. 274. Mare, Peter de la, ii. 430 ; speaker of the house of commons, ii. 430- 441- . , .... Margaret of Anjou, her marriage, ni. 133; promotes Suffollc, iii. 134; her position after the battle of S. Alban's, iii. 171 ; her foreign 640 Index. intrigues, iii. 175, 176; flies to Scotland, iii. 184 ; beats Warwick at S. Alban's, iii. 188 ; retreats northwards, iii. 189 ; her weakness and unpopularity, iii. 191, 192 ; attainted, iii. 196 ; goes to France, iii. 198 ; taken prisoner at Tewkes- bury, iii. 210. Mark, system of the, i. 33, 49-52 ; vestiges of, in the Salian law, i. 54 ; relation to the \icns, or towmship, i. 84. Marlborough, statute of, ii. 97, 109, 113, 205. Marquess, dignity of, iii. 434, 435. Marshall, office of, i. 343, 354, 379 ; unlawful jurisdiction of, ii. 324, 330,607. — family of, ii. 297. — William, earl of Pembroke, i. 500, 503. 51.3. 514 ; 4 ; regent duiing the minority of Henry III, ii. 20-30. — William, earl of Pembroke, son of the regent, ii. 44 ; his widow, ii. 55: — Richard, earl of Pembroke, ii. 47- 49. — Gilbert, earl of Pembroke, ii. 50, — tlie Bigods ; see Bigod. — Edmund, earl of March, ii. 435. — Henry Percy, ii. 436. Matilda, wife of William I, acts as regent, i. 342. — wife of Heniy I, i. 304 ; regent, i. 342. — wife of Stephen, i. 342. — the empress, i. 314 ; her struggle with Stephen, i. 31Q sq. ; elected lady of England, i. 330, 339, 375 ; oaths taken to support her, i. 340, 341- Measures, assize of, i. 509, 572, 573- 575- Mercenaries, employed in the Norman reigns, i. 433, 434 ; introduced by Stephen into England, i. 323 ; banished, i. 334, 450 ; by Magna Carta, i. 538. — how used by Henry II and his sons, i. 588, 589. — disused, ii. 277. Merchant, becomes thegnworthy, i. 162. Merchants, freedom of, i. 536 ; ii. 522 ; grant new customs to Edward I, ii. 156, 523 ; a sub- estate of the realm, ii. 19T ; assem- blies o';, ii. 192, 193; under Edward III, ii. 378, 379 ; grant custom without consent of parlia- ment, ii. 393 ; their loans, ii. 397. — charter of the, ii. 156, 157, 323, 523-525. — illegal taxation of wool through, ii. 526-528. _ — statute of, ii. 116, 330. — of the staple, ii. 411, 412. — Italian and Flemish, ii. 532, 533. Mercia, kingdom of, i. 60, 234, 235 ; conversion of i. 217 ; division into dioceses, i. 226. Merton, statute of, ii. 52, 118, 181, 205 ; iii. 324. — council at, in 1258, ii. 74. Ministers, responsibility of, ii. 558 sq. Modus tenendi parliamentum, ii. 166, 200, 252, 253; iii. 431. Moleyns, Adam, privy seal and bishop of Chichester ; negotiates for peace, iii. 141 ; is murdered, iii. 137, 138, 146, 149. Mona.sticism, early, i. 222-224, 226; its decline, i. 236 ; in cathedrals, i. 287. Montfort, Simon de. earl of Leicester, ii. 51 ; his marriage, ii. 55 ; in Gascony, ii. 72 ; named as one of the provisionary government, ii. 75; negotiates with Lewis IX, ii. 79 '■> thwarted by Gloucester, ii. 80 ; goes to war, ii. 84, 87 ; defeats the king at Lewes, ii. 89 ; his scheme of government, ii. 91 ; his parliament, ii. 93 ; killed at Evesham, ii. 95 ; his character, ii. 99, 100. Mort d'Ancestor, i. 535, 550, 605, 615,617. Mortimer, house of, their claim to the crown, iii. 1 54. — Hugh, of Wigmore, resists Henry 11,1.452,453. — Sir Thomas, arrested, ii. 496. — Roger, ii. 82, 88, 89 ; assists in the government diiring Edward I'a • absence, ii. 104 — Roger, of Wigmore, ii. 343, 346 ; refuses to obey Edward II, ii. 347 ; pardoned, ii. 348; yields, ii. 349; Index. 641 joins queen Isabella, ii. 357; ex- ecutes Edward's friends, ii. 360 ; governs the country, ii. 368 ; his fall, ii. 370, 371. Mortimer, Roger, of Chirk, ii. 343, 346 ; pardoned, ii. 348 ; yields, ii. 349. — Edmund, marries the daughter of Lionel of Clarence, ii. 416, 429, 430, 442, 445- — Roger, earl of March, declared heir to the crown, ii. 468. — Edmund, earl of March, son of Roger, passed over in 1399, iii. 10 ; attempt to seize, iii. 48 ; in the confidence of Henry V, iii, 84 ; plot to make him king, iii. 85 ; a coun- cillor in 1422, iii. 98 ; plot in favour of, iii. 100 ; goes to Ireland and dies, iii. 100. — Edmund, uncle of the earl, iii. 35, 39; 154- — Sir John, execution of, iii. 100. — name of assumed by Jack Sharpe, iii. 362 ; by Jack Cade, iii. 151. Mortmain, ii. 106, 112, 113, 122, 126, 485^ Morton, John, attainted in 1461, iii. 196; pardoned, iii. 213 ; master of the rolls, iii. 214; bishop of Ely, imprisoned, iii. 223; urges Buck- ingham to rebel, iii. 227. Mowbray, Robert, rebels against Wil- liam Rufus, i. 294, 295. — Roger, rebels against Henry II, i. 477, 479 ; goes on crusade, i. 490. — William, opposes John, i. 540; one of the executors of the charter, i. 542 ; dies, ii. 29. — J ohn, quarrels with Hugh le Des- penser, ii, 345; hanged in 1322, ii- 350. — John, earl of Nottingham, ii, 442 ; joins the baronial opposition to Richard II, ii. 469 ; an appellant in 1386, ii. 479 ; joins the king in 1397, ii. 494; made duke of Norfolk, ii. 496 ; his quarrel with Henry of Lancaster, ii. 500 ; banished, ii. 501. — Thomas, earl marshall, iii, 48 ; his rebellion and fate, iii, 49-51, — John, earl marshall, a councillor in 1422, iii. 98; made duke of Norfolk, iii. loi. — John, duke of Norfolk, allies him- VOL. III. T self with the Yorkists, iii. 157; accuses Somerset, iii. 164, 165, 169 ; threatens archbishop Kemp, iii. 166 ; has licence to go on pilgrimage, iii. 1 76 ; swears allegiance to Henry, iii. 180; recognises Edward IV, iii. 189. Mund, i. 78, 181, 183. Mund-byrd, i. 175. Mund-borh, i. 181. Naples, parliaments of, ii. 165 ; papal hold upon, iii. 291. National character, i. i, 210-216, 247, 248 ; ii. 621, 622 ; iii. 613, Navy, origin and growth of, i. 116, 257, 592-594; ii. 286-290; under Edward III, ii. 380 ; under Henry V, iii. 88, 268. Netherlands, states general of the, ii. 162. Neville, John lord, impeached, ii. 431. — William, a Lollard, iii. 31. — Alexander, archbi^^hop of York, ii. 470, 476, 477; impeached and found guilty, ii. 480, 481 ; translated to S. Andrew's, ii. 481. — Ralph lord, made earl of West- moreland, ii. 496 ; joins Henry of Lancaster, ii. 502 ; son-in-law of John of Gaunt, iii. 17 ; advises on war, iii. 34 ; opposes the Percies, iii. 42, 43, 49, 50; his fictitious speech in 1414, iii. 83; a councillor in 1424, iii. 98. — Ralph, earl of Westmoreland, iii. 180. — Richard, earl of Salisbury, at duke Humfrey's arrest, iii. 136, 157 '> chancellor, iii. 167, 168 ; declared loyal, iii. 173; wins the battle of Bloreheath, iii. 178 ; flies to Calais, ih.; attainted iii. 179; plans inva- sion, iii. 181 ; in parliament, iii. 187 ; beheaded, iii. 188. — John, lord Montague, made earl of Northumberland, iii. 199, 200, 205 ; marquess of Montague, iii. 208 ; deserts Edward, t6. ; killed atBamet, iii. 21 1. — George, made bishop of Exeter, iii, 167, 175 ; chancellor, iii. 184, 189 ; archbishop of York, iii. 200 ; re- moved from the chancery, iii. 203 ; marries Clarence, iii. 205 ; Edward t Index. surrenders to, iii. 207 ; restores Henry VI, iii. 208 ; makes peace after Barnet, iii. 212. Neville, John, Lord Neville, on the Lancastrian side, iii. 187, 188; killed at Towton, iii. 190 ; at- tainted, iii. iq6. Nicolas IV, taxation of, ii. 119, 175. Nisi prius, justices of, ii. 271. Nithard, his description of the old Saxons, i. 42. Nobility, among the early Germans, i. 21 ; among the old Saxons, i. 41- 44 ; among the early English, i. 73, 151 ; nobility by service i, 152, 153. — Enghsh, contrasted with foreign, ii. 176 sq.\ of blood, ii. 177; by tenure, ii. 178. Norfolk, Thomas of Brotherton, earl of, ii. 371- — see Bigod, Mowbray, Howard. Normans, condition of, in Normandy, i. 248-250 ; nobility among, i. 249. Norman, claim to originate English institutions, i. 434-444 ; infusion of blood, i. 546. — law, original authorities on, i. 437 ; Henry II improves it, i. 460. Normandy, grand coutumier of, i. 437- — loss of, by John, i. 517, 518. — homage paid by the kings for, i. 560, 561. — by the dukes for, i. 250. Northampton, assize of, i. 483, 573, 615, 618 ; ii. 107. — councils at, i. 483, 514; ii, 115, 200 ; iii. 389. — parliaments at, ii. 315, 316, 371, 378, 448 ; iii. 386. — battle of, iii. 184. Northampton, John, mayor of Lon- don, ii. 446, 447 ; iii. 575. Northern lords, i. 524, 525, 528, 529, 540 ; ii. II. Northumberland, earls of; see Mow- bray, Percy, Neville. Northumbria, succession of kings in, i. 136-138. Nottingham, parliaments at, ii, 379; iii. 388. — Mortimer arrested at, ii. 372, 373. 1 — Richard II consults the judges at, ii. 477. — Berkeley, earl of, iii. 226. Nottingham, earls of ; see Mowbray. Novel disseisin, recognition of, i. 535, 605, 615, 617. Oath, of the king, i. 147-149 ; as taken by John, i. 515; taken by Lewis in 1 216, ii. 15 ; see Corona- tion. — of allegiance, i. 148, 206, 443 ; iii. 515; taken at Salisbury to the Conqueror, i. 265-267, 275, 306. — of the peace, i. 206, 507. — taken to observe the great charter, i- 539- — of witness, i. 396. — compurgatory, i. 606-611 — of councillors, ii. 258 ; iii. 250, 251. — of ministers of state, ii. 78, 330, 389' 39i> 559. 560. Odal, i. 52, Oldcastle, Sir John, iii. 33, 359 ; his trial and attempt at rebellion, iii. 79-81 ; his end, iii. 89. Oldhall, William, ii. 158, 163, 179. Ordainers, of 13 10, ii. 327; appoint ministers, ii. 338. Ordeal, i. 609 ; abolished, i. 619. Ordinance, as opposed to statute, ii. 240, 264, 407, 408, 584, 585, 586. Ordinances, of 1310 and I3ii,ii. 327- 332 ; the king's objections to, ii. 337 ; revoked, ii. 352. Orlton, Adam, bishop of Hereford, his hatred of Edward II, ii. 355 ; joins the queen, ii. 359, 360 ; leads the parliament of 1327, ii. 361 ; heads the queen's party, ii. 367, 369 ; bishop of Worcester, ii, 371 ; attacks archbishop Stratford, ii. 384, 388 ; bishop of Winchester, ii. 384 ; dies in 1345, ii. 394. Owen Glendower, iii. 27, 34 ; assisted by France, iii. 51 ; gives refuge to Percy and Bardolf, iii. 57; his heirs pardoned, iii, 87, Oxford, mad parliament of, ii, 74 ; articles of the barons at, ii. 74-76 ; provisions of, ii. 76-88, 167, 181. — university of, sends representatives to parliament, ii, 150 ; resists arch- bishop Arundel, iii, 63, 66 ; scholars of, at war with the county, iii. 271. — earls of, see Vere. Index. Pagus, in ancient Germany, i. 28, 30 ; among the old Saxons, i. 44 ; in the language of Bede, i. 71, 72 ; corresponds to hundred and wapen- take, i. 96, 97. Painted chamlier, iii. 384, 426, Palatine earldoms, i. 271, 272, 363, 364. Pall, archiepiscopal, its importance, iii. 296, 297. Papacy, relations of the Anglo-Saxon Church to, i. 230, 241, 245 ; of the Conqueror, i. 281, 285 ; of Henry I, i. 316-318. — claims of, remonstrance of Edward III against, ii. 393 ; negotiations on, at Bruges, ii. 426, 427. — relations of the crown to, iii. 291. Pardon, royal power of, ii. 582 ; Henry VI grants too many, iii. 130. Parishes, origin of, i. 85, 227. — erroneous calculation of the nimi- ber of, ii. 422. Parliament, name of, i, 477, 570; how applied, ii. 224, 225; general and special, ii. 261 ; antiquities of, iii. 375 ; Sir Thomas Smith's account of, iii. 467-476. — powers of, in the time of John, ii. 236-239 ; under Edward I, ii. 239- 244 ; under Henry VIII, iii. 467. — annual, ordered, ii. 330; petitioned for, ii, 433, 612, 613 ; iii. 380. — suspension of, iii. 275. — place of, ii. 613; iii. 382-388. — prorogation of, ii. 613, 614; iii. 275, 481, 482. — clerks of, iii. 451. — the mad, ii. 74. — the good, ii. 426, 580; transactions of, ii. 428-433. — the merciless, ii. 479-482 ; iii. 389. — the unlearned, iii. 46, 391. — of bats, iii. 103, — of Paris, ii. 265. Peace, the, i. 180, 181, 206, 507; maintenance of, by the county courts, ii. 209. — discussions on, in parliament, ii. 604. — conservator of, i. 507 ; ii. 209, 227, 272, 273, 370. — justices of, ii. 273, 433, 434. Peace and war^ discussions in parlia- T ment on, ii. 337, 601-604; iii. 260, 261. Pecock, Reginald, bishop of Chiches- ter, iii. 176, 361, 362. Peerage, growth of the idea of, ii. 177, 183; definition of, ii. 184. — rights of, vindicated by archbishop Stratford, ii. 388, 389; for life, iii. 439; resignation of, iii. 432; privileges of, iii. 487-497. Peeresses, trial of, iii. 128. Peers, use of the word, ii. 347, 386, 389, 595- Pembroke, earldom of, i. 362. — earl of, see Marshall. — Aymer de Valence, earl of, ii. 326, 327 ; Gaveston carried off from, ii. 332 ; his influence with Edward II, ii. 332, 336 ; acts as mediator, ii. 342 ; a member of the council, ii. 343 ; is the king's chief adviser, ii. 345 ; mediates again, ii, 347 ; joins Edward in the war of 1322, ii. 348 ; dies, ii. 356, — Lawrence Hastings, earl of, ii. 384. — John Hastings, earl of, attacks the clergy, ii. 421. Percy, Henry, chosen to advise the commons in 1376, ii. 429; becomes Marshall, ii. 436 ; in parliament in 1377, ii. 437 ; supports Wycliffe at S. Paul's, ii. 438 ; earl of North- umberland, ii. 442 ; quan-els with John of Gaunt, ii. 467 ; refuses to fight for the duke of Ireland, ii. 478 ; joins Henry of Lancaster, ii. 502 ; negotiates with Richard, ii. 503 ; is Mattathias, iii. 1 1 ; constable of England, iii. 15, 17; takes the votes on Richard's science, iii. 20 ; his advice on war, iii. 34 ; defeats the Scots, iii. 36 ; his discontent, • iii. 39 ; submits, iii. 4-1 ; his rebel- lion in 1405, iii. 49; second rebel- lion and death, iii, 62. — Henry, Hotspur, son of the earl, has the isle of Anglesey, iii. 1 5 ; commands in Wales, iii. 34 ; his rebellion and death, iii. 40, 41. — Henry, son of Hotspur, restored to his earldom, iii. 84 ; a member of council, iii. 98 ; killed at S. Alban's in 1455, iii. 171. — Henry, earl of Northumberland, 644 Index. son, iii. i88 ; killed at Towton, iii. 190 ; attainted, iii. 196 Percy, Henry, earl of Northumberland, son, iii. 226 ; deserts Richard III, iii. 233 ; chamberlain, iii. 227. — Richard de, i. 540 ; ii. 29. — Thomas, steward of Richard II, ii. 495 ; proctor for the clergy, ih. ; made earl of Worcester, ii, 496 ; admiral, iii. 15 ; his rebellion and death, iii. 40, 41 ; mentioned, iii. 259. — Thomas, lord Egremont, iii. 145, Perrers, Alice, ii. 427 ; ordinance passed against, ii. 431 ; recalled, ii. 435 : flight of, ii. 441 ; submits, ii. 445 ; has promise of redress in 1398, ii. 497. Peter's pence, i. 230, 285; ii. 156, 41.5 ; iii- 333» 334- Petition, right of, ii. 247 ; how treated in council and parliament, ii. 261- 263, 324, 407, 571-573; iii. 459- 463 ; clear answers to, ii. 574 ; turned into statutes, ii. 575, 576- 579 ; not to be altered, iii. 81, 262 ; of the magnates, ii. 590 ; of the clergy, ii. 591, 592 ; triers and re- ceivers of, iii. 428-452. — of Lincoln in 1301, ii. 150, 151, 536 ; of 1309, ii. 323, 536 ; of 1310, ii. 326, 537 ; of the good parlia- ment, ii. 433 — of right, ii. 238. PevereU, William, i. 452. — honour of, i. 402. Philipot, John, ii. 444, 445, 567. Pipe rolls, i. 379, 454, 598. Pipewell, council of, i. 496. Plague, the great, of 1349, ii- 39^' 399- Pleas of the crown, i. 187, 382, 607. — common, i. 535, 603; withdrawn from the Exchequer, ii. 266 ; court of, ii. 266 ; chief justices of, ii. 267, 268. Poll-tax of 1377, ii. 439 ; of 1379, ii. 447 ; of 1380, ii. 449 ; political im- portance of, ii. 452. Poor, condition of, iii. 599. Port-reeve, i. 93, 404, 407, 415, 416 Postal service, iii. 217. Praecipe, writ of, i. 536. Praemunire, statute of, ii. 410, 415, 485 ; iii. 328, 329, 330._ Praemunientes clause, ii. 195 ; iii. 318, 319^ 394' 403' 446, 447; see Clergy. Prerogative, of the king, ii. 239 ; declarations on, ii. 486, 500 ; iii. 24; grov/th of the idea of, ii. 513, 514- Priesthood, among the ancient Ger- mans, i. 26. Primogeniture, succession by, ii. 1 79. Princeps, among the ancient Ger- mans, i. 13, 21, 24-26, 34-36, 45 ; in Bede, i. 71 ; compared with the king, i. 68 ; ealdorman, i. iii ; see Ealdorman. Privileges of parliament, iii. 485-499. Privy seal, keeper of, iii. 245, 253 ; John Waltham, ii. 476; Richard Clifford, iii. 23; Adam Moleyns, iii. 137. Prohibitions to church assemblies and courts, ii. 119; iii. 323, 326, 340, 345- Prorogation of parliament, ii. 613, 614; iii. 481, 482; long proroga- tions, iii. 275. Protests, of lords, iii. 489. Provisors, statute of, ii. 410, 48.;; ; iii. 314, 326 ; suspension of, ii. 581, iii- 33- Pro vision, papal, to sees, iii. 308- 316. Proxies, of peers, iii. 487, 488. Purveyance, abuses of, ii. 324, 326, 329 ; restrained, ii. 149, 327, 382, 383; evils of, described, ii. 403, 404 ; renounced by the crown, ii. 414, 415 ; petitioned against, ii. 433. — growth of the right, ii. 535 ; arch- bishop Islip's letter on, ii. 535 ; • legislation on, ii. 536-539. — complaints against, iii. 24. Queen, position of, i. 341, 342 ; acting as regent, i. 563. Rachimburgi, i. 54, 103, 610. Raleigh, Willian), bishop of Win- chester, ii. 53, 62 ; iii. 307. Ranulf, Flambard, i. 298-302. Rapes, in Sussex, i. 100, 108. Reading, council at, ii. 112. — parliament at, iii. 163, 387. Index. ^45 Eecognitions by jury, institution of, i. 6ii, 615, 617-620. Redesdale, Robin of, iii. 205, 206 ; riot of, iii. 271. Regency, as exercised during the ab- sence of the kings, i. 563 ; during the minority of Henry III, ii. 20 — council of, under Edward III, ii. 368 sq. ; under Richard II, ii. 442 sq. ; under Henry VI, iii. 97. — during the illness of Henry VI, iii, 167, 173, 174. — under Edward V, iii. 221, 222. Reliefs, i. 261, 305, 366, 383, 443, 533. Resumption, acts of, in 1450, iii. 150 ; re-enacted, iii. 159; in 1456, iii. 174; in 1473, iii. 213 ; Fortescue's plan for, iii. 244, 265. Revenue, estimate of, ii. 544 ; for life, granted to Richard II, ii. 497 ; re- fused to Henry IV, iii, 64 ; granted to Heni7V, iii, 86; to Henry VI, iii. 163; to Edward IV, iii. 199; to Richard, iii, 229, — of William the Conqueror, i, 280, Richard I, his conduct to his father, i, 491 ; his accession, i. 495 ; sketch of his reign, i. 495-512 ; his ransom, i. 501 ; his second coronation, i, 504- Richard II, of Bourdeaux, regent, ii. 424 ; petition that he maybe showTi to the parliament, ii, 432; his ac- cession, ii. 440 ; sketch of his reign, ii. 440-509 ; his deposition, iii, 12, 13; condemned to imprisonment, iii. 20 ; question of his fate, iii, 26 ; his first funeral, ih. ; his second, iii, 78 ; reported to be alive, iii, 40, 60, Richard III, as duke of Glouee-^ter, iii. 195 ; marries Anne Neville, iii, 214; conducts the war with the Scots, iii, 217; his conspiracy, iii. 223 ; declares himself king, iii. 224; his reign, iii, 225-232. Ridings or trithings, i. 100 ; repre- sentatives of, ii, 216, Rioters, statutes against, iii, 271, Robert of Normandy, his rebellion against William I, i. 293 ; his struggle with William II, i. 294 ; with Henry I, i, 306-309, Robert, of Gloucester, son of Henry I, i, 320, 321, 330, Roches, Peter des, bishop of Win- chester, justiciar, i, 527 ; ii, 18, 20 ; guardian to Henry III, ii, 31 ; heads a party of foreigners, ii, 32, 33 ; against Hubert de Burgh, ii, 34, 39 ; overthrows him, ii, 45 ; is over- thrown in turn, ii, 48-50 ; dies, ii, 53 ; said that there were no peers in England, ii, 48, 183. Rollo, legendary customs of, i, 248. Rudolf, account of the old Saxons by, i. 43- . Runnymede, parliamentura de, ii, i, S. Alban's, assembly of representa- tives at, in 1213, i, 526; knights summoned to, in 1261, ii, 85 ; eccle- siastical council at, i. 579; ii. 173, 174; iii. 323. — rising of the tenants in 1381, ii, 455, 457- — battle of, in 1455, ii, 171 ; second battle in 1461, iii, 188. Sac and Soc, i. 102, 103, 106, 184- 186, 408, Sacebaro, i. 184, Saladin, tithe, i. 489 ; refused by the Scots, i. 557 ; assessment of, i, 585 ; ii. 172. Salisbury, great councils of, i. 266, 358 ; another, i. 341, 358, 564, — council at, in 1297, ii. 131. — parliaments at, ii. 357, 358, 371, 466 ; iii, 387. Salisbury, William Longespee, earl of, i. 541 ; ii. 9, 15, 23, 38. — Henry de Lacy, earl of. See Lin- coln. — William Montacute, earl of, ii. 373. — William Montacute II, earl of, ii. 426, 437, 471. — John Montacute, earl of, ii. 494, 498, 502 ; accused of the attack on Gloucester, iii. 21 ; joins in the conspiracy of the earls, iii. 26 ; is killed, ib. ; forfeited, iii. 31. — Richard Neville, See Neville. Sawtre, William, burned, iii. 32 ; importance of his case, iii. 356, 357- Saxons, first appearance of, i. 38 ; de- scription of their state in Germany, by Bede, i, 41 ; by Nithard, i. 42 ; by Rudolf, i, 43 ; by Hucbald, ih. ; arrival of, in Britain, i. 63. 646 Index. Saxon shore, count of, i, 59, 63. Saxony, i. 5, — Henry, the lion, duke of, i, 466. Scabini, i. 103, 115, 205, 610, Scotale, i. 628. Scot and lot, iii. 419-421. Scotland, references to the history of, i, 5, 555, 556; ii. 161 ; parliaments of, ii. 165, 166. — English claims over, i, 555-558; relation of Galloway to, i. 557. — church of, dependent on Kome, i. 556. — David, king of, i. 321, 324, 437, — Malcolm IV, king of, i. 455, 457, 460, .:;55. — William the Lion, king of, i. 477, 479,480,556 ; released by Richard I from his vassalage, i. 496 ; offers to buy Northumberland, i. 504 ; does homage to John, i. 516. — Alexander II, king of, ii. 16. — transactions of Edward I with, ii. 123, 127, 295 ; claimed by Boniface VIII as a fief, ii. 152, 153 ; dealings of Edward II with, ii. 377. Scrope, Richard le, lord of Bolton, treasurer, ii. 422 ; chancellor, ii. 448 ; and again, ii. 466, 567 ; de- fends Michael de la Pole, ii. 475 ; a commissioner in 13S6, ii. 476; spared in 1399, iii. 24. — WiUiam le, son of Richard ; earl of Wiltshire, and treasurer, ii. 494, 496 ; beheaded, ii. 502, 508 ; iii. 24. — Richard le, archbishop of York, ii. 503, 506 ; his rebellion and fate, iii. 49-51, 57 ; offerings to him, iii. 78. — Henry le, lord of Masham, ii. 426, 429, 444. — Henry le, lord of Masham, trea- surer of England, iii. 76 ; joins in the Southampton plot, and is put to death, iii. 85. Scrope and Grosvenor, law-suit of, iii. 536. Scutage, i. 454, 456, 489, 501, 507, 509, 581, 582 ; ii. 172, 175 ; taken by John, i. 516, 523 ; regulated by the great charter, i, 533, 534 ; under Henry III, ii. 30, 33, 36, 42, 47, 59, 60, 64; under Edward I, ii. 1 17, I2p. Scutage, how assessed, i. 584, 585 ; as commutation of service, i. 590 ; regulated by the charter of 1217, ii. 27. — cessation of, ii. 521. Scj-p-fylled, i. 105. Seal, the great, i. 352, 506, 533. See Chancellor. Sheriff, i. iii, 113, 114; identified with the Norman vicecomes, i. 272 ; hereditary, ib.; his jurisdic- tion under the Normans, i. 276 ; restored by Stephen, i. 334 ; judges act in the oflBce, i. 392, 393; mili- tary position of, i. 432 ; ii. 278 ; power of, in towns, i. 408 ; rein- stated by Henry II, i. 45 1 ; Henry's inquest of, in 1170, i. 472, 473; removed by Richard, i. 496, 503 ; regulated by Magna Carta, i. 535 ; his duties diminished, i. 606, 607 ; excluded from chartered boroughs, i. 625 ; his tourn, i. 104, 399 ; his precept, iii. 413-415. — of towns and cities, iii. 403, 588. — to be annually elected, ii. 78, 207, 382 ; changes in the mode of ap- pointment, ii. 207, 208 ; military authority of, ii. 2io, 211 ; power of, in towns, ii. 219 ; to be appointed in the Exchequer, ii. 382 ; petition for annual elections, ii. 433 ; dis- cussion on, ii. 579 ; writs to, iii. 396. Sheriff's tourn, i. 104, 399 ; ii. 206, Shire, institution of, i. 100, 109-118 ; third penny of, i. 113 ; iii. 436. — small shires, i. 100, loi. Shire moot, i. 1 11, 115; its repre- sentative character, i. 119; under the Normans, i. 393. Shrewsbury, John Talbot, earl of, iii. 102, 163 ; kiUed, iii. 164. — John Talbot, earl of, treasurer of subsidy, iii. 168; treasurer of Eng- land, iii. 176 ; killed, iii. 184. — parliament of, ii. 497 ; iii. 388. Sicily, exchequer of, i. 378, 439 ; justiciar of, i. 350 ; usages of, in common with England, i. 350. — Henry II refuses the kingdom of, i. 492. — kingdom of, offered to Richard of Cornwall, ii. 69 ; to Edmund, ih. ; negotiations about, ii. 70, 84. Index, 647 Sicily, great courts of, ii. 160, — monarchy of, iii. 293. Sithe-socn, i. 106. Slaves, among the ancient Germans, i. 23 ; among the Anglo-Saxons, i. 78, 79. Socage tenure, i. 549. Spain, Germanic influences in the history of, i. 4, 6, 7 ; laws of, i, 9 ; conversion of the Arians in, i. 61. — kings of, Henry II arbitrates be- tween, i. 486 ; ii. 199. — cortes of, ii. 159, 160, 163, 165. Speakers of the house of commons — Peter de la Mare, ii. 430 ; again, ii. 443 ; iii. 453.' Thomas Hungerford, ii. 437 ; iii. 4.-3- John Bussy, ii. 492. JohnCheyne, iii. 18, 53; iii. 454. John Doreward, iii. 18. 454. Arnold Savage, iii, 29, 42, 53, 56, 239, 259. William Esturmy, iii. 47. John Tibetot. iii. 52. Thomas Chaucer, iii. 60, 63, 67, 90, 259. Roger Flower, iii. 89. Richard Banyard, iii. 91. John Russell, iii. 99, 114. Thomas Wauton, iii. 100. Richard Vernon, iii, 103. John Tyrell, iii. 106, 1 1 2, 123. Roger Hunt, iii. 117. Jolin Bowes, iii. 122. William Tresham, iii. 124, 128, John Say, iii. 142. John Popham. iii. 143. William Oldhall, iii. 158, 163, 179. Thomas Thorpe, iii. 163, 164, 259. 454- Thomas Charlton, iii. 166. John Wenlock, iii. 173, 179. Thomas Tresham, iii. 179. John Green, iii, 184. James Strangeways, iii. 195. William Alyngton, iii. 215. John Wood, iii. 218. William Catesby, iii. 228. — election and protest of, iii. 452- 455- Stanley, Thomas, lord, petition for attainder of, iii. 180 ; steward of Edward IV, iii. 221 ; step-father of Henry Tudor, iii. 233 ; con- stable, iii, 227; joins Henry at Bosworth, iii, 233. Stanley, Sir William, iii. 227, 232, 233- Staples, ordinance of, ii, 411, 412, 485. Statutes, of Merton, ii. 52, 118, 181, 205 ; iii. 324. — of Marlborough, ii. 97, 109, 113, 205. — de religiosis, ii. 106, 112, 113, 122, 126, 485 ; iii, 331. — quia emptores, ii. 106, 122, 180, 246, 454. — of Carlisle, ii. 106, 156, 247, 581 ; iii. 326, 327. — Westminster I, ii. 109, 223, 246, 264, 536. — de bigamis, ii. no, 265. — of Rageman, ii. no, 264. — of Gloucester, ii. no. — of Acton Burnell, ii. 116, 264, 353. — of Rhuddlan, ii, 117. — Westminster ii, ii. 117, 118, 180, — Winchester, ii. 118, 210. — of Westminster iii, ii. 122. — articuli super cartas, ii, 149, 268, 536. — de finibus levatis, ii. 148. — de pr£erogativa, ii. 180, 619, — de falsa moneta, ii, 149, 264, — of provisors, ii, 410, 485 ; iii. 314. — of praemunire, ii, 410, 486 ; iii. 351. — of staples, ii. 411, 412. — of Northampton, ii. 582. — of York, ii, 352, 597. — de haeretico, iii. 32, 355. — of Stamford, ii, 327. — of Westminster iv, ii. 346. — of Cambridge, ii, 482. Stephen, sketch of his reign, i. 318- 336. Steward, office of, i. 343, 344, 354 ; hereditary in the earls of Leicester, ^' •^44- — unlawful jurisdiction of the, ii. 324, 607. Stratford, John, made bishop of Win- chester, ii. 355 ; draws an indict- ment against Edward II, ii, 361 ; his policy, ii. 367 ; opposes the queen and Mortimer, ii. 371 ; chancellor, ii, 373, 383, 384 ; leads 648 Index, the Lancaster party, ii. 384 ; at- tacked by the king, ii. 385, 386 ; demands trial by his peers, ii. 387 ; his contest, ii. 3S 7-389; recon- ciliation, ii. 389 ; dies, ii. 394. Stratford, Kobert, bishop of Chichester, ii- 383-385- Succession, acts settling the, iii. 45, 50, 208. Suevi, Caesar's description of, i. 12, 13. Surrey, subkingdom of, i. 171 ; earls of, see Warenne. Sussex, kingdom of, i. 60, 171, 172. Swabia, i. 5, 10, 40. Sweden, estates of, ii. 165. Tacitus, his Germania, i. 16-20. Tallage, i. 501, 507, 508, 581, 583; how assessed, i. 585, 586. — de tallagio non concedendo, ii. 142 s^., 518, 519. — under Edward II, ii. 333, 519 ; attempted under Edward III, ii. 376, 519, 520; abolished, ii. 383, 521. " — of demesne, ii. 517-521. Tallies, i. 380 ; iii. 385. Taxation, by the witenagemot, i. 133. — by the Norman kings, i. 577; by the council, ii. 240; right of the kings to, ii. 517. — debates on, 578, 579; in the county court, ii. 214. — history of, i. 577-5^7- — of land, i. 581. — of the spirituals, ii. 1 71-174, 175 ; iii. 336, 337 ; voted in convocation, ii. 195-198; of the stipendiary clergy, iii. 264. — of goods, i. 581. — of wool, ii. 526-528. — share of individuals in the deter- mination of, ii. 239, 240-243. — assessment of, i. 583-586. — terms of the grant of, express the action of the commons, iii. 263, 264, 458. — by the popes, iii. 334, 335. Taxes of 121 7 and 1218, ii. 30, 59. — of 1 2 19, for the crusade, ii. 36. — of 1220, carucage, ii. 36. — of 1 221, scutage of Biham, ii. 33. — of 1223, scutage of Montgomery, ii. 34. — of 1224, scutage of Bedford, ii. 36. Taxes of 1225, a fifteenth, ii. 37, 38, 59- — of 1227, a tallage, ii. 40. — of 1229, scutage of Kery, ii. 42 ; papal tenth, ii. 42. — of 1230, scutage of Brittany, ii. 42. — of 1231, scutage of Poictou, ii. 42. — of 1232, a fortieth, ii. 47. — of 1235, ^i<^ fo^* tlie marriage of Isabella, ii. 52, 59. — of 1237, 3- thirtieth, ii. 54, 59. — of T242, scutage, ii. 60. — of 1245, scutage 'pur fille marier,' ii. 63. — of 1246, scutage of Gannoc, ii. 64. — of 1247, 11,000 marks, ii. 65. — of 1253, scutage and tenths, ii. 67. — of 1254, ii- ^8. — of 1257, 52,000 marks from the clergy, ii. 71.* — of 1269, ^ twentieth, ii. 98. — of 1270, supplementary, ii. 98. — of 1273, tenths, ii. 104. — of 1275, ^ fifteenth, ii. 109; cus- toms, ii. 109. — of 1278, distraint of knighthood, ii. III. — of 1279, scutage, ii. no; of the clergy?, ii. 113. — of 1282, ii. 114. — of 1283, a thirtieth, ii. 115. — of 1285, scutage, ii. 117. — of 1288, papal tenths, ii. 119. — of 1289, tallage, ii. 120. — of 1290, aid pur fille marier, ii. 121; fifteenth and tenth, ii. 122, 123. — of 1 291, ii. 124. — of 1292, a fifteenth, ii. 125. — of 1294, ii. 126, 127. — of 1 295, ii. 129. — of 1296, ii. 130. — of 1297, ii. 134, 137-140. — of 1301, ii. 151. — of 1302, ii. 156. — of 1303, new custom, ii. 156. — of 1304, ii. 157. — of 1 306, thirtieth and twentieth, ii. 156. — of 1307, a fifteenth and twentieth, ii. 316. — of 1309, a twenty-fifth, ii. 323. — of 1310, ii. 328. — of 1 31 2, tallage, ii. 333, 334. Index. 649 Taxes of 1313, a fifteenth and twen- tieth, ii. 334. — of 1 31 5, a fifteenth and twentieth, ii- 339- — of 1316, a fifteenth and sixteenth, ii- 339' 340- — of 131 7, a papal tenth, ii. 341. — of 1 319, a twelfth and eighteenth, ii. 344. — of 1320, ii. 346. — of 1322, ii. 353. — of i327-i33i,ii. 376. — oi 1332, ii. 376. — of 1333-1335. ii- 377. — of 1336-1338, ii. 378, 379. — of 1339-134O' ii- 380. 381. — of 1342, ii. 393. — of 1344, ii. 395. — of 1346, ii. 395. — of 1347, ii. 397. — of 1348, ii. 398. — of 1 351-1359, ii. 405, 406. — of 1360-1369, ii. 412, 413. — of 1371, ii. 422-424. — of 1372, ii. 424. — of 1373, ii. 426. — of 1374, ii. 426. — of 1376, ii. 432. — of 1377, ii. 437 ; poll-tax, 439. — of 1377, to Richard II, ii. 444. — of 1378, ii. 446, 447. — of 1379, poll-tax, ii. 447. — of 1380, poll-tax, ii. 449. — of 1381, 1382, ii. 462. — of 1382, ii. 465. — of 1383, ii. 465. — of 1384, ii. 466, 467. — of 1385, ii. 466, 468. — of 1386, ii. 472, 476. — of 1388, ii. 479, 482. — of 1390-1395' ii- 483. 484- — of 1397, ii. 492. — of 1398, ii. 497. — of 1399, iii. 23. — of 1401, iii. 30. — of 1402, iii. 37. — of 1404, iii. 46. — of 1406, iii. 57. — of I407, iii. 60. — of 1410, iii. 64. — of 141 1, iii. 67. — of 1413, iii. 78. — of 1414, iii. 84. — of 1 41 5, iii. 86. — of 1416, iii. 87, 88. Taxes of 141 7, iii. 89. — of 1419, iii. 89. — of 1421, iii. 90, 91. — of 1422, iii. 98. — of 1423, iii. 99. — of 1425, iii. 100. — of 1426, iii. 104. — of 1427, iii. 107. — of 1429, iii. III. — of 1431, iii. 113. — of 1432, iii. 115. — of 1433, iii. 119. — of 1435, iii. 122. — of 1437, iii. 123. — of 1439, iii. 124, — of 1442, iii. 128. — of 1445, 1446, iii. 133. — of 1449, iii. 143. — of 1450, iii. 150. — of 1453, iii- 163. — of 1463, iii. 198. — of 1465, iii. 199. — of 1468, iii. 204. — of 1473, iii. 213. — of 1474, iii. 213. — of 1478, iii. 216. — of 1483, iii. 218, 219. — of 1484, iii. 229. Temporalities, of bishops, i. 321 ; ii. 369- — restitution of, iii. 296 ; usurped by the popes, iii. 308, 309. Terms, law, iii. 378-380. Terra Salica, i. 55. Testamentary causes, jurisdiction in, i. 300 ; ii. 65, 119; iii. 324, 343. Thegn, i. 80, T15, 152, 155-158 ; his liability to military service, i. 191 ; in connexion with trial by jury, i. 115, 206, 611. — king's, i. 157, 158, 175, 186, 187. Theodore, archbishop, his ecclesias- tical policy, i. 218; his subdivision of dioceses, i. 225, 226. Theodosius, code of, i. 9, 613; coro- nation of, i. 144, 145. Theotisca lingua, i. 38. Thirning, Sir William, iii. 10, 13. Thunginus, i. 54, loi. Tiptoft, John, a councillor in 1422, iii. 98 ; steward of the household, iii. 114; resigns, ib. — John, son, earl of Worcester, trea- surer, iii. 162, 165, 168 ; beheaded, 650 Index. iii. 208 ; his cruelties as constable, iii. 281-283. Tithes, assigned to the clergy, i. 227-229. — suits touching, iii. 332, 340. — of underwood, ii, 596 ; iii. 324. — of personalty, iii. 339. Tithing, i. 85 i^q. Tortuie, practice of, iii. 281, 282. Toulouse, war of, i. 456-458. Towns, early growth of, i. -404, 624; charters and privileges of, i. 411, 623 sq.; in demesne, i. 425; un- chartered, i. 426, 624 ; market, i. 426 ; exclusion of the sheriff from, i. 625 ; election of magistrates in, i. 626, 627 ; separate negotiations of, with the exchequer, i. 585, 627. — constitution of, at the beginning of the parliamentary period, ii. 217; elections of representatives, ii. 232 ; iii. 4i3S(7. — later constitutional history of, iii. 558-590 ; made counties, iii. 588. Township among the old Saxons, i. 42 ; among the Saxons in England, i. 82-91 ; officers of, i. 95 ; rela- tion of, to tlie manor, i. 399. Treason, idea of, i. 176; legislation on, ii. 410 ; iii, 23, 516. — constructive, iii. 283. — laws against, iii. 513-520, Treasurer, the king's, office of, i. 353, 379 ; growth in importance of, ii. Treasurers — William of Pont de I'Arche, i. 353- Nigel of Ely, i. 325, 326, 353, 450, 468. Richard Fitz-Neal, i. 468, 489, 491, E,anulf le Bret, ii. 45. Walter Mauclerc, ii. 45. Peter de Rivaux, ii. 47. Phihp Level, ii. 77. John Crakehall, ii. 78. John Kirkby, ii. it 4, 120, 124. Walter Langton, ii. 150, 320, 336. AValter Rejmolds, ii. 320. .John Sandall, ii. 328, 338. Walter of Norwich (It.), ii. 331, 338. Treasurers {continued) — Walter Stapledon, ii. 354, 358, 359- William de Melton (abp. of York), ii. 356, 373. Adam Orlton, ii. 366'. Henry Burghersh, ii. 371. Roger Nortliburgh, ii. 385. Robert Parning, ii. 387. William Edington, ii. 395, 413. John Sheppey, ii. 413. Simon Langham, ii. 413. John Burnet, ii. 413. Thomas Brantingham, ii. 413, 420 ; again, ii. 483. Richard le Scrope.ii. 422. Henry Wakefield, ii. 436. Sir Robert Hales, ii. 457, 458. Sir Hugh Segrave, ii. 460, 461. Walter Skirlaw, ii. 473. John Gilbert, ii. 474, 485. John Waltham, ii. 485. Roger Walden, ih. John Northbury, iii. 15, Lawrence Allerthorpe, iii. 33. Lord Roos, iii. 42. Henry le Scrope, iii. 63. Thomas, earl of Arundel, iii. 76. John Stafford, iii. 104. Walter, lord Hungerford, iii. 104, John le Scrope, iii. 114. Ralph, lord Cromwell, iii. 117. Ralph Boteler, lord Sudeley, iii. Marmaduke Lumley, iii. 144. Lord Say and Sele, iii. 143, 152. Lord Beauchamp, iii. 150, John Tiptoft, earl of Worcester, iii. 162. James Butler, earl of Wiltshire, - iii. 170, 171 ; again, iii. 177. Henry, viscount Bourchier, iii. 172 ; again, iii. 189, 214. John Talbot, earl of Shrewsbury, iii. 176. Richard Wydville, lord Rivers, iii. 202. Treasurers of subsidies appointed, ii. 439, 444, 564, 565, 567. — of war, iii. 45, 46, 54, 55. Tressilian, Robert, his severities against the rebels in 1381, ii. 459 ; aids Richard in 1387, ii. 477; charged by the appellants, ii. 478 ; Index. 651 condemned and executed, ii. 480, 481. Trinoda necessitas, i. 76, 95, 105, 184. 190, 194, Trussell, Sir William, proctor for the parliament of 1327, ii. 362, 363, 392, 430 ; iii. 453. Tudor, Edmund, iii. 129. — Jasper, iii. 129 ; earl of Pembroke, iii. 171, 188; attainted, iii. 196; defeated and deprived of his earl- dom, iii. 204. — Henry, earl of Richmond, iii. 215 ; negotiation for his marriage with Elizabeth of York, iii, 227; lands at Milford Haven, iii, 232 ; wins the crown at Bosworth, iii. 233, Tun, original, i. 82, 92, Tun-gerefa, i. 42, 82, 95, 96. Tunnage and poundage, ii. 424, 426, 528, 568 ; iii. 242, See Taxes. — properly applied to the mainte- nance of the navy, ii. 424, 568 ; iii, 242, — for life, granted to Henry V, Henry VI, and Edward IV, iii. 86, 163, 199; to Richard III, 229. Tunscipesmot, i. 90, 399. Twelf-hynde and Twyhynde, i, 157, 161. Tyler, Wat, rebellion of, ii. 456, 457. Unction, of kings, i. 147. Urban II, pope, iii. 293. Urban IV, pope, ii. 86, 92. Urban VI, pope, ii. 481 ; iii, 315, 325. Vacarius, i. 494, 495. Valence, William, bishop elect of, ii, 52-54, 58, 183. — William of, half-brother of Henry III, ii, 88. — Aymer of, see Pembroke. Varini, i. 40, 47. Vassalage, i. 153, 188, 253. Vere, Robert de, earl of Oxford, ii. 464, 465 ; marquess of Dublin, ii, 468, 469 ; duke of Ireland, ii. 468 ; supports Richard against the barons, ii. 477, 478 ; defeated at Radcot bridge, ii. 479 ; condemned, ii. 481 ; dies abroad, ii, 483. — John de, earl of Oxford, put to death, iii, 198 ; by law of Fadua, iii. 283. Vere, John, earl of Oxford, seizes St. Michael's mount, iii, 211; assists Henry Tudor in his attack on Richard, iii, 232. Vicecomites pacis, ii. 6. Vicus, in ancient Germany, i. 31, 35 ; among the Old Saxons, i. 41 ; in England, i, 82-84. Village communities, i, 19, 33, 51. ViDenage, i. 426-43 r, 550; a cause of the rising of the commons, ii. 453 ; result of that rising on, ii. 462, 463 ; later history of, iii. 603. Villeins, ordination of, i. 431 ; wain- age of, secured in Magna Carta, i. 531 ; extraction of, i. 546 ; educa- tion of, ii. 463, 485. Viscount, dignity of, iii. 436, 437. Visigoths, i. 4, 9, 142, 145. • Voting in parliament, ii. 252. Wages of members of parliament, ii. 229, 235 ; iii. 56, 425, 483, 484. Wake, Thomas, lord, ii. 360 ; one of the council of Edward III in his minority, ii. 369; arrested in 1341, ii. 385. Wakefield, battle of, iii. 188. Wales, princes of, i. 460, 482 ; rela- tions of, to the English crown, i. 554; wars of Henry II in, i, 455, 458, 467, 554 ; wars of Henry III with, ii. 89 ; policy of Edward I in, ii, 108, 114, 117 ; trial of David, at Shrewsbury, ii, 116; wars with, ii. 128 ; statute of, ii. 295, — prince of, in parliament, iii, 432. • — represented in the English parlia- ments, ii. 351, 360; iii. 447, 470. Wallingford, treaty of, i. 333 sq., 445. — honour of, i. 402, — council at, i. 453. Walworth, William, ii, 444, 445, 458, ^567. W apentake, i. 96, 99. See Hundred. Wardrobe, accounts of, ii. 276, 529, 545. 546, 551- Warenne, John, earl of, opposes Edward I on the quo warranto inquest, ii. 110, iii. — John, earl of, supports Gaveston, ii. 325 ; is pardoned, ii. 334; car- ries off the countess of Lancaster, ii. 341 ; joins in the attack on the Despensers, ii. 347 ; is pardoned, ii. 652 Index, 348; on the king's side in 1322, ii. 350, 358, 359 ; one of the council of Edward III, ii. 369. Warwick, Beauchamp earldom of, ii. 363- Warwick, Guy Beauchamp, earl of, ii. 325, 326; an ordainer, ii. 327; beheads Gaveston, ii. 332 ; par- doned, ii. 334; dies, ii. 335. — Thomas Beauchamp, earl of, ii. 429, 437 ; joins the party opposed to Richard II, ii. 469 ; an appel- lant, ii. 479 ; arrested in 1397, ii. 493 ; confesses treason and is condemned, ii. 496 ; attempts to den}'^ his confession, iii. 19; re- stored, iii. 23. — Richard Beauchamp, earl of, quar- rels with the earl Marshall, in 1405, iii. 49 ; left by Henry V as pre- ceptor to his son, iii. 92, 98 ; his quarrel with the earl Marshall, iii. loi ; instructions as Henry's tutor, iii. 108 ; regent of France, iii. 123 ; dies, iii. 124. — Henry, duke of, iii. 433. — Richard Neville, earl of, iii. 161 ; captain of Calais, iii. 172 ; again, iii. 177; wins the battle of North- ampton, iii. 183 ; in parliament, iii. 187; is beaten at S. Alban's, iii. 188 ; joins in making Edward king, iii. 189 ; his disgust at his marriage, iii. 200 ; plans a marriage for his daughter with Clarence, iii. 202 ; sus- pected of treason, iii. 203 ; connives at the rebellion of Robin of Redes- dale, iii. 205 ; goes to Calais, ih. ; makes terms with Edward, iii. 207 ; connives at the rising in Lincolnshire and flies to France, ih. ; lands and restores Henry, iii. 208 ; killed at Barnet, iii. 210; his character, iii. 211, 212. Welles, Sir Robert, his rebellion and death, iii. 207. — Leo, lord, attainted, iii. 196. Wergild, i. 9, 53, 55, 79 ; of the king, i. 143, 144; of the thegn, i. 157; importance of, in Anglo - Saxon times, i. i6t, 162. Wessex, kingdom of, i. 60, 67, 1 71* 235; shire-formation of, i. no; conversion of, i. 217; divided into dioceses, i. 226. Westminster, provisions of, ii. 81. — palace of, iii. 382-385 ; chapter- house of, iii. 385, 429, 431. Wight, lordship of, iii. 433. William I, his policy, i. 256 sq. ; his revenue, i. 279 ; his ecclesiastical policy, i. 280 s^. ; transitional cha- racter of his reign, i. 288 ; general history of the reign, i. 290-294. William II, sketch of his reign, i. 294-302 ; his treaty with Robert, i. 340. William of Normandy, son of Robert, i. 307. — the Etheling, son of Henry I, i. 310, 395- — son of Henry II, i. 453. — Fitz Osbert, riot of, i. 508, 587. Willoughby, Richard, justice, ii. 385 ; his story about a writ addressed to the king, ii. 238. Winchester, council at, i. 330. — statute of, ii. 119. — parliaments at, ii. 372, 423, 484; iii. 387. Witenagemot, i. 116, 117, 11 9-1 40; continued by the Conqueror, i. 268 ; and in the royal council of the Norman kings, i. 356. Woodstock, councils at, i. 462, 483 ; assize of, i. 489, 511, 573. Wool, seized for Richard's ransom, i. 501 ; taxed, i. 503 ; ii. 191, 192. — custom imposed on in 1 275, ii. 109. — seized in 1294, ii. 126. — not to be taxed without consent of parliament, ii. 414, 528. — maletote of, ii. 142, 526-528. Worcester, constitution of, iii. 582. Writ, of prtecipe, i. 536. — circumspecte agatis, ii. 119; iii. 345- — sig-nificavit, iii. 344, 351, 356. — de excommunicato capiendo, ^6. — de hseretico, iii. 356. — of summons, general and special, i. 567-569 ; to parliament and to the host, ii. 201-204 ; barony by writ, ii. 204; writs 'propriis nomi- nibus,' i. 567. — of summons, variety of forms, ii. 249, 250 ; iii. 389-403 ; to military service, ii. 278, 280. — of protection, ii. 324. — sale of, ii. 605. Index. Writs, invention of, i. 391. WyclifFe, John, ii. 414 ; speech pre- served by, ii. 420 ; sympathises with the attack on the clergy in 1 37 1, ii. 412 ; negotiates at Bruges, ii, 427, 436; his trial at S. Paul's, ii. 438 ; his relation to John of Gaunt, ii. 440 ; consulted by the princess of Wales, ii. 443 ; second prosecution of, ii. 446 ; dies at Lut- terworth, ii. 470 ; importance of the legal proceedings against, iii. 352-355- Wydville, Eichard, lord Rivers, con- stable, iii. 150, 181 ; Edward IV marries his daughter, iii. 200 ; rivalry of his family with the Nevilles, iii. 201; promotion of his children, iii. 202 ; treasurer and constable, ih. ; reconciled with W^ar- wick, iii. 203 ; beheaded, ii. 206. . — John, married to the duchess of Norfolk, iii. 202 ; put to death, iii. 206. — Antony, lord Scales, iii. 202, 204 ; earl Rivers, iii. 220; arrested, iii. 222 ; executed, iii. 225. — Richard, iii. 205, 220. — Edward, iii. 220, 221. Wykeham, William of, bishop of Win- chester, chancellor, ii. 413, 420; compelled to resign in 1371, ii. 421 ; attacked by John of Gaunt for his conduct in the good parlia- ment, ii. 435 ; convocation insists on redress, ii. 436, 439 ; is on the side of the baronial opposition, ii. 470 ; chancellor again, ii. 483, 484 ; dies, iii. 47. Yeomanry, condition and political importance of, iii. 551-558. Yonge, Thomas, member for Bristol, proposes to declare the duke of York heir to the throne, iii. 159, 493. York, Edmund of Langley, duke of, ii. 487, 488, 498 ; regent, ii. 502 ; joins Henry of Lancaster, ii. 502 ; joins in the judgment on Richard, iii. 20. York, Edward, duke of, son of Edmund ; earl of Rutland, ii. 494 ; duke of Albemarle, ii. 496, 498 ; a possible competitor for the crown, iii. 10 ; accused by Bagot, iii. 19 ; reduced in rank, iii. 21 ; betrays the conspi- racy of the earls, iii. 26 ; declared loyal, iii. 31 ; advises on tlie war, iii. 34; duke of York, iii. 48; ac- cused by his sister, ^7). — Richard, duke of, iii. 86 ; Glouces- ter administers the Mortimer estates for. iii. loi ; declared of age, iii. 116 ; regent of France, iii. 123; again, iii. 125; his rivalry with the Beaufoits, iii. 131, 132, 153 ; his suspected complicity with Cade, iii. 151 ; his early career, iii. 153; and claims to the crown, iii. 153-155 ; visits Henry VI, after Cade's rebellion, iii. 156 ; influ- ences the elections, iii. 157; pro- posal to declare him heir, iii. 159 ; marches against the king in 1452, iii. 160 ; reconciled, iii. 162 ; has the speaker Thorpe arrested, iii. 164; summoned to council, ih.\ opens parHament, iii. 165; chosen protector, iii. 166, 167; his admi- ni.stration, iii. 169 ; dismissed, iii. 170; wins the battle of S. Alban's, iii. 171; high constable, iii. 172; his second protectorate, iii. 173, 174 ; is reconciled with the queen, iii. 177 ; goes to Ireland, iii. 178; attainted, iii. 179; plans invasion, iii. 182; returns, iii. 184; claims the throne, iii. 185 ; accepts the succession, iii. 186, 187; killed at Wakefield, iii. 188. — archbishop of, i. 360. — Geoffrey, archbishop of, i. 499, 500, 502, 506, 523 ; refuses to pay a thirteenth, i. 523. — convocation of, ii. 112, 196, 198, 199. — county court of, ii. 214, 215. — parliaments of, ii. 148, 338, 343, 344. 351. 37i» 376, 377; iii- 386. — parliament of 1322 at, ii. 351. Yorkshire, elections in, iii. 411, 412 ; lordships in, iii. 528. CLARENDON PRESS^ OXFORD. HISTORICAL WORKS Lately Published. SELECT CHARTERS AND OTHER ILLUSTRATIONS of English Constitutional History, from the Earliest Times to the Reign of Edward I. Arranged and Edited by W. Stubbs, M.A., Regius Professor of Modern History in the University of Oxford. Second Edition. Crown 8vo. cloth, 8a-. 6d. THE HISTORY OF THE NORMAN CONQUEST OF ENGLAND, its Causes and its Results. By Edward A. Freeman, M.A., late Fellow of Trinity College, Oxford. In Five Volumes, Demy Svo. cloth, 4/. 19s. Vol. I. The Preliminary History to the Election of Eadward the Confessor. Third Edition. Vol. II. The Reign of Eadward the Confessor. Third Edition. Vol. in. The Reign of Harold and the Interregnum. Second Edition. Vol. IV. The Reign of William the Conqueror. Second Edition. Vol. V. The Effects of the Norman Conquest. Lately Published. Vols. HI, IV, V may be had separately, il. is. each. Vols. I and II together, il. 16s. A HISTORY OF ENGLAND, principally in the Seventeenth Century. By Leopold Von Ranke. Translated by Resident Members of the University of Oxford, under the superintendence of G. W. Kitchin, M.A. and C. W. Boase, M.A. 6 vols. Svo^ cloth, 3/. 3s. GENEALOGICAL TABLES ILLUSTRATIVE OF MODERN HISTORY. By H. B. George, M.A. Second Edition. Revised and Corrected. Small 410. cloth, 1 2s. A HISTORY OF FRANCE. With numerous Maps, Plans, and Tables. By G. W. Kitchin, M.A. In Three Volumes, crown Svo. cloth IDS. 6d. each. Vol. I. Down to the Year 1453. Vol. II. From 1453-1624. Vol. HI. P'rom 1624-1793. Historical Works lately PiLblished. A MANUAL OF ANCIENT HISTORY. By George Rawlin- son, M.A,, Camden Professor of Ancient History, formerly Fellow of Exeter College, Oxford, Demy 8vo. cloth, 14s. A HISTORY OF GREECE from its Conquest by the Romans to the present time, b. c. 146 to a.d. 1864. By George Finlay, LL. D. A new Edition, revised throughout, and in part re-written, with considera- ble additions, by the Author, and Edited by H, F. Tozer, M.A,, Tutor and late Fellow of Exeter College, Oxford. In Seven Volumes. 8vo, cloth, 3/. lOS. A SELECTION FROM THE DESPATCHES, TREATIES, and other Papers of the Marquess Wellesley, K.G., during his Government of India ; with Appendix, Map of India, and Plans, Edited by S. J. Owen, M.A., Reader in Law and History, and Tutor at Christ Church ; formerly Professor of History in the Elphinstone College, Bombay. 8vo. cloth, il. 4s. ELEIMENTS OF LAW considered with reference to Principles of General Jurisprudence. By William Markby, M.A., Judge of the High Court of Judicature, Calcutta. Second Edition, with Supplement, Crown Svo. cloth, 7s. 6d. AN INTRODUCTION TO THE HISTORY OF THE LAW OF REAL PROPERTY, with original Authorities. By Kenelm E. Digby, M.A., of Lincoln's Inn, Barrister-at-Law, and formerly Fellow of Corpus Christi College, Oxford. Crown 8yo. cloth, p. 6d. THE INSTITUTES OF JUSTINIAN, edited as a recension of the Institutes of Gains. By the same Editor. Extra fcap. Svo. cloth, 5s. GAII INSTITUTIONUM JURIS CIVILIS COMMENTARII QUATUOR; or. Elements of Roman Law by Gaius. With a Translation and Commentary by Edward Poste, M.A., Barrister-at-Law, and Fellow of Oriel College, Oxford. Second Edition. Svo. cloth, iSs. SELECT TITLES FROM THE DIGEST OF JUSTINIAN. By T. E. Holland, D.C.L., Chichele Professor of International Law and Diplomacy, and formerly Fellow of Exeter College, Oxford, and C. L. Shadwell, B.C.L., Fellow of Oriel College, Oxford. In Parts. Part I. Introductory Titles. Svo. sewed, 2s. 6d. Part II. Family Law. Svo. sewed, is. Part III. Property Law. Svo. sewed, 2s. 6d. Part IV, Law of Obligations. Nearly ready. Published for the University by MACMILLAN & CO., LONDON. Date Due 1